[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Obermiller, Slip Opinion No. 2016-Ohio-1594.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2016-OHIO-1594
          THE STATE OF OHIO, APPELLEE, v. OBERMILLER, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Obermiller, Slip Opinion No. 2016-Ohio-1594.]
Criminal Law—Aggravated murder—-Death penalty—Guilty plea to indictment—
        Convictions and death penalty affirmed.
   (No. 2011-0857—Submitted September 1, 2015—Decided April 20, 2016.)
          APPEAL from the Court of Common Pleas of Cuyahoga County,
                                   No. CR-10-542119-A.
                                    _________________
        O’CONNOR, C.J.
        {¶ 1} This is an appeal as of right from two aggravated-murder convictions
and death sentences. In 2011, Denny Obermiller pleaded guilty to the rape and
murder of his grandmother, Candace Schneider, and the murder of her husband,
Donald Schneider. A three-judge panel unanimously sentenced Obermiller to death
for the aggravated murders and to more than 32 years in prison for his noncapital
convictions.
        {¶ 2} We affirm his convictions and death sentences.
                             SUPREME COURT OF OHIO




                             RELEVANT BACKGROUND
       {¶ 3} Because Obermiller pleaded guilty, the trial court held a hearing
before a three-judge panel pursuant to R.C. 2945.06. The state presented 22
witnesses, one additional witness later testified at the panel’s request, and the state
introduced a large amount of documentary and photographic evidence, which
establish the following facts.
                                    The Evidence
       {¶ 4} Shortly before noon on Tuesday, August 10, 2010, Officer Michael
Gazer was dispatched to the Schneiders’ house in Maple Heights, Ohio, in response
to a theft complaint.     Donald and Candace told Gazer that they suspected
Obermiller of stealing rare coins from their home.
       {¶ 5} Later that day, Candace went to her job at a gas station in Garfield
Heights. Candace closed the store around 11:45 p.m. Candace was scheduled to
work the next day, August 11, but she did not come in. The manager of the gas
station received a telephone call on August 11 from a male who identified himself
as Candace’s nephew. The caller said that Candace would not be coming to work
that day because her husband was in the hospital.
       {¶ 6} Candace Flagg, one of the Schneiders’ granddaughters, became
concerned when her grandmother did not call her on Flagg’s birthday, as was her
grandmother’s custom. On August 13, 2010, after attempting to call the Schneiders
many times and getting no answer, Flagg contacted a number of family members
in an effort to locate Candace, but they all told her that they had not heard from the
Schneiders. When Flagg called Candace Schneider’s workplace, she was told that
Candace was at a hospital with Donald. Flagg called several area hospitals, but she
could not find her grandparents. Flagg also contacted her cousin, Obermiller, who
told her that he would try to check on the Schneiders and get back to her.
Obermiller did not call her that evening.




                                            2
                                January Term, 2016




       {¶ 7} The next day, Flagg called Obermiller again. Obermiller initially told
her that he had not yet stopped by the Schneiders’ house. But when Flagg said that
she was going to ask some friends to check on the Schneiders, Obermiller changed
his story and told her that their grandparents were fine and that he had checked on
them. After calling several other people, Flagg contacted the Maple Heights Police
Department and requested that an officer stop by her grandparents’ house. Flagg
was subsequently informed that an officer had driven past the house and had seen
Donald’s van parked in the driveway.
       {¶ 8} In the early evening on August 14, 2010, Maple Heights police
returned to the Schneiders’ house to conduct a welfare check at Flagg’s request.
After knocking on the front door and ringing the doorbell, officers looked through
a partially open window, saw a body lying on the floor, forced their way in through
the side door, and smelled a strong odor of natural gas. A candle was burning on
the mantle in the living room, and the unlit gas stove in the kitchen had been left
on with the burners exposed. One of the officers threw the candle out the door and
turned off the gas stove.
       {¶ 9} Officers found Candace’s body in the first-floor bedroom. She was
lying on her back on the floor with her arms above her head and her wrists
handcuffed together. A power cord was wrapped around her neck, and a bed sheet
partly covered her torso and completely covered her face. Police recovered condom
wrappers and two used condoms in the same bedroom.
       {¶ 10} Officers found Donald’s body on the bed in the second-floor
bedroom. He was wearing only underwear and was lying on his right side with his
feet at the head of the bed. Donald’s hands were handcuffed behind his back, a bed
sheet was tied around his face and neck, and a comforter covered most of his body.
An investigator noted that the positioning of his body could indicate that a struggle
had occurred. A telephone cord had been yanked from the wall in Donald’s
bedroom and was wrapped around his body.




                                         3
                              SUPREME COURT OF OHIO




       {¶ 11} Detective Allen Henderson of the Maple Heights Police Department
and his partner arrived on the scene soon after a dispatcher notified them of the
double homicide. Henderson testified that as they walked through the house, his
partner had remembered that a theft complaint had come in from the same residence
a few days earlier and that Donald, who had made the report, had suspected that
Obermiller was the culprit.
       {¶ 12} Investigators noted that the burner caps and grates had been removed
from the gas stove in the kitchen. An investigator observed that a television set was
missing from above the mantle in the living room, as indicated by a dust outline
and hanging cables. Flagg testified at the hearing that her grandparents owned a
large, flat-screen television set, which they had mounted above the mantle in the
living room.
       {¶ 13} Deputy Coroner Jimmie K. Smith, M.D., conducted Candace’s
autopsy on August 15, 2010. There was mild hemorrhaging of Candace’s neck due
to the ligature around it, bruising on the back of her left hand and the inside of her
left knee, diffuse hemorrhaging in the scalp tissue immediately adjacent to her
skull, and an abrasion on her forehead. Dr. Smith testified that all of the injuries
could have occurred during her strangulation, although the bruise on her hand could
have been a defensive wound. Dr. Smith opined that the scalp wound was
consistent with blunt-force trauma to the head from an object having a flat or
rounded surface. Dr. Smith concluded that the cause of death was “asphyxia by
cervical compression (ligature strangulation).”       Based upon decompositional
changes and police reports, he estimated that Candace died approximately four days
before he examined her.
       {¶ 14} Dr. Smith found no indication of vaginal trauma, but vaginal smears
tested positive for the presence of spermatozoa. Subsequent forensic testing of
vaginal swabs, performed by an analyst with the DNA department of the Cuyahoga
County Coroner’s Office, confirmed the presence of seminal material containing




                                          4
                               January Term, 2016




DNA that matched Obermiller’s DNA profile as a major contributor to a reasonable
degree of scientific certainty. Obermiller also could not be excluded as the source
of epithelial cells found in the two used condoms.
       {¶ 15} Deputy Medical Examiner Joseph Felo, D.O., conducted Donald’s
autopsy and concluded that the cause of Donald’s death was the same as Candace’s:
“asphyxia by cervical compression (ligature strangulation).” Dr. Felo also found a
nonfatal sharp-force injury underneath the right side of Donald’s jaw, which he
classified in the autopsy report as a “stab wound” because it was deeper than it was
wide. Dr. Felo opined at the evidentiary hearing that it was also possible that the
injury may have been caused by a discharge at close range from a “starter pistol
type of handgun” that police had recovered when Obermiller was apprehended.
       {¶ 16} On August 15, 2010, one of Obermiller’s relatives informed police
that Obermiller had contacted him and was driving to the relative’s home at
Buckeye Lake. Police officers subsequently located Obermiller at a gas station in
Licking County and arrested him after a brief foot chase.
                               Procedural History
       {¶ 17} A grand jury indicted Obermiller on seven counts of aggravated
murder, three counts of theft, two counts of kidnapping, two counts of aggravated
robbery, and one count each of rape, aggravated burglary, tampering with evidence,
attempted aggravated arson, and burglary. Many of the noncapital counts included
prior-conviction   (R.C.   2929.13(F)(6))    and     repeat-violent-offender   (R.C.
2941.149(A)) specifications.
       {¶ 18} Counts 1 and 4 charged Obermiller with the aggravated murders of
Donald and Candace, respectively, with prior calculation and design. Both counts
included death-penalty specifications for course of conduct (R.C. 2929.04(A)(5)),
murder to escape detection (R.C. 2929.04(A)(3)), witness murder (R.C.
2929.04(A)(8)), and felony murder predicated on aggravated robbery, kidnapping,




                                         5
                            SUPREME COURT OF OHIO




and aggravated burglary (R.C. 2929.04(A)(7)). Count 4 also contained a death-
penalty specification for felony murder predicated on rape (R.C. 2929.04(A)(7)).
       {¶ 19} Counts 2 and 3 charged Obermiller with the felony murder of Donald
while committing aggravated robbery and aggravated burglary, respectively. Each
count included the same six death-penalty specifications included in Count 1.
Counts 5, 6, and 7 charged Obermiller with the felony murder of Candace while
committing aggravated robbery, aggravated burglary, and rape, respectively, and
each count included the same seven death-penalty specifications contained in Count
4.
       {¶ 20} Obermiller waived his right to a jury trial and pleaded guilty to the
indictment. The case proceeded to an evidentiary hearing before a three-judge
panel. After the evidentiary hearing, the panel found him guilty of all counts and
specifications.
       {¶ 21} At the start of the mitigation phase, the state requested that the court
merge a number of the counts and specifications, and Obermiller waived the
presentation of mitigating evidence. After determining that he was competent to
do so, the panel merged many of the counts and declared that it would sentence
Obermiller on the following charges: Count 1 with specifications for course of
conduct and witness murder, Count 4 with specifications for course of conduct,
witness murder, and felony murder predicated on rape, Count 12 (rape), Count 13
(aggravated burglary), Count 15 (theft), Count 16 (theft), Count 17 (attempted
aggravated arson), and Count 18 (burglary).
       {¶ 22} Ultimately, the panel unanimously sentenced him to death on Counts
1 and 4 and to an aggregate sentence of 32.5 years on the remaining counts.
Obermiller timely appealed to this court.
                                     ANALYSIS
       {¶ 23} Obermiller challenges his convictions and death sentences through
ten propositions of law. We address them out of order.




                                            6
                                January Term, 2016




Pretrial Issues
                            Right to self-representation
       {¶ 24} In proposition of law No. 1, Obermiller argues that his Sixth
Amendment rights were violated both when the presiding judge denied his request
to waive counsel and when the three-judge panel “successfully bullied [him] out of
his desire to represent himself.” Obermiller also contends that the panel should
have explored the possibility of appointing standby counsel.
       {¶ 25} A criminal defendant’s right to self-representation is rooted in the
Sixth Amendment to the United States Constitution, which provides: “In all
criminal prosecutions, the accused shall * * * have the Assistance of Counsel for
his defence.” The Ohio Constitution provides that “[i]n any trial, in any court, the
party accused shall be allowed to appear and defend in person and with counsel.”
Article I, Section 10, Ohio Constitution.
       {¶ 26} The Sixth Amendment right to counsel “implicitly embodies a
‘correlative right to dispense with a lawyer’s help.’ ” State v. Martin, 103 Ohio
St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 23, quoting Adams v. United States
ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed.2d 268 (1942). This
right is thwarted when counsel is forced upon an unwilling defendant, who alone
bears the risks of a potential conviction. See Faretta v. California, 422 U.S. 806,
819-820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
       {¶ 27} In Faretta, the United States Supreme Court held:


                  The Sixth Amendment does not provide merely that a
       defense shall be made for the accused; it grants to the accused
       personally the right to make his defense. It is the accused, not
       counsel, who must be “informed of the nature and cause of the
       accusation,” who must be “confronted with the witnesses against
       him,” and who must be accorded “compulsory process for obtaining




                                            7
                              SUPREME COURT OF OHIO




        witnesses in his favor.” Although not stated in the Amendment in
        so many words, the right to self-representation—to make one’s own
        defense personally—is thus necessarily implied by the structure of
        the Amendment. The right to defend is given directly to the accused;
        for it is he who suffers the consequences if the defense fails.


Id.
        {¶ 28} Not long after Faretta was decided, we held that the Sixth
Amendment “guarantees that a defendant in a state criminal trial has an independent
constitutional right of self-representation and that he may proceed to defend himself
without counsel when he voluntarily, and knowingly and intelligently elects to do
so.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of
the syllabus, citing Faretta. We have also recognized that if a trial court denies the
right to self-representation when that right is properly invoked, the denial is, per se,
reversible error. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996),
citing McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122
(1984), fn. 8. And although Faretta was not a capital case, see Faretta at 807, both
the United States Supreme Court and this court have applied Faretta in capital cases
and have acknowledged that valid waivers of counsel in capital cases will be
upheld. See, e.g., Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d
321 (1993); State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1.
We have held that it is an abuse of discretion for a trial court to refuse to allow a
defendant in a capital case to proceed pro se if the defendant properly invokes the
right to self-representation. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070,
937 N.E.2d 97, ¶ 74. Determining whether a defendant has properly invoked the
right to self-representation is a critical duty in any case, but the determination is
especially important in a capital case.




                                           8
                                      January Term, 2016




         {¶ 29} A criminal defendant must “unequivocally and explicitly invoke”
the right to self-representation. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-
3751, 772 N.E.2d 81, ¶ 38. Requiring that a request for self-representation be both
unequivocal and explicit helps to ensure that a defendant will not “tak[e] advantage
of and manipulat[e] the mutual exclusivity of the rights to counsel and self-
representation.” United States v. Frazier-El, 204 F.3d 553, 559 (4th Cir.2000). For
this reason, courts must “indulge in every reasonable presumption against waiver”
of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51
L.Ed.2d 424 (1977).1
         {¶ 30} Additionally, as was recognized in Faretta, the trial court must be
sure that the criminal defendant “knowingly and intelligently” forgoes the
“traditional benefits associated with the right to counsel.” Id., 422 U.S. at 835, 95
S.Ct. 2525, 45 L.Ed.2d 562. The defendant “need not himself have the skill and
experience of a lawyer” in order to choose to represent himself, but he “should be
made aware of the dangers and disadvantages of self-representation, so that the
record will establish that ‘he knows what he is doing and his choice is made with
eyes open.’ ” Id., quoting Adams, 317 U.S. at 279, 63 S.Ct. 236, 87 L.Ed. 268.
Whether a defendant’s choice was made with eyes open typically “depend[s], in
each case, upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused.” Johnson v.

1
  Proper invocation of the right to waive counsel also depends on the timeliness of the request. State
v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 37, 40. This court has held that a
request to waive counsel made three days prior to trial was untimely. See id. at ¶ 40; see also State
v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 52-53 (defendant’s request to
represent himself after voir dire had been completed and on the first day evidence was to be
presented was untimely); State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112,
¶ 76-77 (request for self-representation that was not made until just before trial-phase closing
arguments was untimely). But those cases all involved jury trials. Here, although Obermiller’s
request was not made until the day his trial was to begin, Obermiller pleaded guilty and waived his
right to a jury trial. In addition, there is no evidence that Obermiller used his request to waive
counsel as a delaying tactic. See Cassano at ¶ 40-41. Under these circumstances, the timing of
Obermiller’s request to waive counsel is not fatal to his claim that the panel violated his Sixth
Amendment right to self-representation.




                                                  9
                             SUPREME COURT OF OHIO




Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).               Thus, a
defendant’s unambiguous assertion of the right to self-representation triggers a trial
court’s duty to conduct the Faretta inquiries to establish that the defendant is
knowingly and voluntarily waiving his constitutional right to counsel. United
States v. Cromer, 389 F.3d 662, 682-683 (6th Cir.2004).
       {¶ 31} Finally, even if a defendant has made an unequivocal and explicit
request for self-representation, a defendant may later waive that request by
acquiescing in counsel’s representation. See Cassano, 96 Ohio St.3d 94, 2002-
Ohio-3751, 772 N.E.2d 81, at ¶ 42, citing McKaskle, 465 U.S. at 182, 104 S.Ct.
944, 79 L.Ed.2d 122.
                 Obermiller’s first request for self-representation
       {¶ 32} Obermiller contends that the presiding judge “improperly denied his
request to represent himself.” We disagree.
       {¶ 33} On the day trial was set to begin, Obermiller told the trial judge: “I
wish to change my plea to guilty and I would also like to represent myself from this
point forward.” The presiding judge first explained to Obermiller that in a capital
case, a guilty plea must be considered by a three-judge panel before it is accepted.
The judge next addressed Obermiller’s request for self-representation. The judge
asked Obermiller 13 substantive questions, mostly related to his interactions and
degree of satisfaction with his current counsel, his previous incarceration, his
experience with the juvenile-justice system, and his age. After this brief inquiry,
the trial judge informed Obermiller that “at this time, the Court is not going to grant
that request.” She further stated in his presence that the issue of self-representation
would be revisited once the panel was selected.
       {¶ 34} Under these facts, the presiding judge did not deny Obermiller’s
request for self-representation; she merely postponed consideration of the request.
The judge specifically declared that once the panel had been selected, the court
would revisit the question of self-representation. And it did.




                                          10
                               January Term, 2016




       {¶ 35} The postponement of the self-representation inquiry appropriately
permitted the additional panel members to participate in evaluating the request.
And no substantive proceedings occurred between the presiding judge’s discussion
with Obermiller of his self-representation request and the three-judge panel’s
resumption of the inquiry. Thus, contrary to Obermiller’s assertion, the presiding
judge never “denied” his request.
       {¶ 36} Indeed, in previous cases in which a trial court held multiple hearings
before ruling on a defendant’s request for self-representation, we have not found
that the court erred in failing to rule immediately on the request. See Martin, 103
Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 13 (trial court “[u]ltimately
* * * reserved judgment on the representation issue until another pretrial
conference”); State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72,
¶ 42 (trial court held at least four separate hearings, over the course of multiple
weeks, on defendant’s request to waive counsel).
       {¶ 37} Next, Obermiller argues that the panel’s colloquy regarding his
request for self-representation was unnecessary and that it was “designed to wear
[him] down.”
        The three-judge panel revisits the request for self-representation
       {¶ 38} After the trial court accepted Obermiller’s jury waiver and convened
a three-judge panel, the panel extensively questioned Obermiller regarding his
request to waive counsel. The questions focused on Obermiller’s familiarity with
the criminal-justice system and with Title 29 of the Ohio Revised Code, his
educational background (with an emphasis on Obermiller’s lack of legal
education), and his knowledge of trial procedure. The panel explored the various
pitfalls related to self-representation, warned Obermiller that he would be held to
the same standards as would a licensed attorney, and discussed with him the
possible claims that he would forfeit on appeal if he waived counsel. The panel




                                         11
                             SUPREME COURT OF OHIO




also asked Obermiller about the reasons for the timing of his request to waive
counsel and his satisfaction with defense counsel.
       {¶ 39} Finally, the panel read parts of the indictment into the record and
questioned Obermiller about his awareness of the crimes with which he was
charged and whether he understood the concepts of lesser-included and inferior-
degree offenses. The panel questioned whether Obermiller understood the gravity
of a capital case. Obermiller for the most part admitted that he did not understand
those legal concepts or the nuances of the crime of murder, including defenses and
justifications. Despite the pitfalls described to him, Obermiller stated, “I have
discussed it with my attorneys. I feel confident with going without an attorney.”
       {¶ 40} This colloquy lasted approximately 34 minutes, which Obermiller
suggests was too long. But 34 minutes is not a burdensome amount of time to
explore the issue of self-representation in a capital case.
       {¶ 41} Contrary to Obermiller’s assertion that the panel’s inquiry was
unnecessary, because he made an unequivocal request to represent himself in
addition to stating that he intended to enter a guilty plea to the capital indictment,
Faretta required the panel to conduct a rigorous colloquy. Under Faretta, the panel
was required to ensure that Obermiller was “made aware of the dangers and
disadvantages of self-representation,” to establish a record showing that Obermiller
made the decision to represent himself with “ ‘eyes open.’ ” Faretta, 422 U.S. at
835, 95 S.Ct. 2525, 45 L.Ed.2d 562, quoting Adams, 317 U.S. at 279, 63 S.Ct. 236,
87 L.Ed. 268.     In any event, Faretta imposes “rigorous restrictions on the
information that must be conveyed to a defendant, and the procedures that must be
observed, before permitting him to waive his right to counsel at trial.” Patterson v.
Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), citing Faretta
at 835-836.
       {¶ 42} In light of the requirement that a trial judge “must investigate [a
defendant’s request for self-representation] as long and as thoroughly as the




                                          12
                                 January Term, 2016




circumstances of the case before him demand,” Von Moltke v. Gillies, 332 U.S. 708,
723-24, 68 S.Ct. 316, 92 L.Ed. 309 (1948), we cannot say that the panel’s colloquy
was unreasonable or that the panel coerced Obermiller into accepting
representation. In a capital case, the court has a corresponding duty to ensure the
reliability of proceedings. A less searching colloquy would have been nothing more
than “token obedience” to the important rights guaranteed by the Sixth
Amendment, given the significance of the charges—and the ultimate penalty—that
Obermiller faced. See id. at 723.
       {¶ 43} The court must be satisfied that the waiver of the right to counsel is
knowing and voluntary, and the court’s colloquy must ensure that the defendant has
been “made aware of the dangers and disadvantages of self-representation.”
Faretta at 835. The specific nature of the colloquy varies from case to case,
depending on the nature and circumstances of the charged offenses and potential
penalties the defendant faces.
       {¶ 44} The record here does not establish that the colloquy was designed to
“wear down” Obermiller or overcome his stated desire to represent himself. Rather,
when considered as a whole, the three-judge panel’s inquiry was undertaken to
comply with its duty to ensure that it fully informed Obermiller of the risks of his
decision to represent himself, to satisfy the requirements for a rigorous inquiry
mandated by the Supreme Court in Faretta and other cases.
       {¶ 45} Moreover, the record establishes that Obermiller ultimately
withdrew his request for self-representation and that this decision was knowing and
voluntary.
             Obermiller withdraws his request for self-representation
       {¶ 46} Before any ruling on the self-representation request was made, a
panel member stated: “Mr. Obermiller, you have your own purpose, and your
purpose is you want to be your own attorney so you can present no defense and you




                                         13
                              SUPREME COURT OF OHIO




don’t want to do anything on your own behalf. * * * [Do you] just want to sit there
and take punches?” To this, Obermiller replied: “Yes.”
       {¶ 47} The judge pursued this line of questioning a bit further before
Obermiller abruptly stated:


       There’s no * * * thing saying I got to do anything. Or even if you
       keep these two people here, they can still only do what I tell them to
       do. So what’s the point with all these questions? I don’t understand
       it. Whether or not you want to keep them here—as a matter of fact,
       they can stay. I really don’t care at this point.


       {¶ 48} Hearing this, a panel member asked several follow-up questions to
confirm that Obermiller had withdrawn his request to waive counsel:


               JUDGE SAFFOLD: Okay. Then you won’t waive [your
       right to counsel].
               THE DEFENDANT: No, I don’t waive it. They can stay.
               JUDGE SAFFOLD: All right. You want to proceed then
       with your lawyers?
               THE DEFENDANT: Yes.
               JUDGE SAFFOLD: Okay. Thank you. Let the record
       indicate that we’ve * * * had an inquiry with the proper questions
       being placed before the defendant on whether or not to waive
       counsel, and * * * Mr. Obermiller has withdrawn that request.


       {¶ 49} At this point, Obermiller definitively “abandoned any intention to
represent himself.” Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81,
at ¶ 42, citing McKaskle, 465 U.S. at 182, 104 S.Ct. 944, 79 L.Ed.2d 122. And




                                         14
                                      January Term, 2016




Obermiller never reasserted the request for self-representation.                      Instead, the
proceedings continued with Obermiller represented by counsel.
                               The option of stand-by counsel
         {¶ 50} Finally, Obermiller argues that the panel erred by failing to “discuss
the option of appointing standby counsel.” We have recognized that “[o]nce the
right to counsel is properly waived, trial courts are permitted to appoint standby
counsel to assist the otherwise pro se defendant.”2 Martin, 103 Ohio St.3d 385,
2004-Ohio-5471, 816 N.E.2d 227, at ¶ 28.                      But neither state nor federal
jurisprudence requires a court to inform a defendant who seeks to waive counsel of
the potential for standby counsel.
         {¶ 51} Moreover, during the colloquy about self-representation, a panel
member asked Obermiller why he wanted to discharge counsel, and he responded,
“I don’t need them.” When asked to explain, he repeated that he did not need
counsel, and he further stated, “If I keep them, I’m not going to let them put no
defense up.” Thus, the record indicates that a discussion of the possibility of
standby counsel would not have changed Obermiller’s position prior to his
withdrawal of the request to waive counsel.
         {¶ 52} For the foregoing reasons, we reject proposition of law No. 1 and
hold that Obermiller’s Sixth Amendment right to self-representation was not
violated.




2
  We have stated that “[h]ybrid representation differs from standby representation in that” in hybrid
representation, “the defendant and counsel act as co-counsel, sharing responsibilities in preparing
and conducting trial,” whereas in standby representation, counsel assists an otherwise pro se
defendant only upon that defendant’s request or if the defendant is unable to or decides not to
continue pro se. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 28, 29. And
although a defendant “ ‘has the right either to appear pro se or to have counsel, he has no
corresponding right to act as co-counsel on his own behalf.’ ” Id. at ¶ 31, quoting State v. Thompson,
33 Ohio St.3d 1, 6-7, 514 N.E.2d 407 (1987).




                                                 15
                             SUPREME COURT OF OHIO




                          Right against self-incrimination
       {¶ 53} We turn next to proposition of law No. 8, in which Obermiller argues
that the trial court violated his Fifth Amendment right against self-incrimination
when it denied his motion to suppress certain statements he had made. We also
address the portion of proposition of law No. 4 in which Obermiller contends that
defense counsel provided constitutionally ineffective assistance when counsel
failed to adequately raise the issue of custodial interrogation in the motion to
suppress.
       {¶ 54} Specifically, Obermiller contends that the trial court erred when it
found that he was not subjected to custodial interrogation when he made
incriminating statements to officers at the time of his arrest. He further argues that
he was especially prejudiced by the trial court’s refusal to suppress a statement he
made in response to a question about why he killed his grandmother. Obermiller
protests that the court’s ruling on the motion to suppress likely “tainted his decision
to plead guilty to the charges against him” and states that he likely “would not have
done so but for that erroneous ruling.”
       {¶ 55} A guilty plea is a complete admission of guilt under Crim.R.
11(B)(1), and a “defendant who * * * voluntarily, knowingly, and intelligently
enters a plea of guilty with the assistance of counsel ‘may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.’ ” State v. Fitzpatrick, 102 Ohio St.3d 321,
2004-Ohio-3167, 810 N.E.2d 927, ¶ 78, quoting Tollett v. Henderson, 411 U.S.
258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
       {¶ 56} Obermiller has not challenged his guilty plea on appeal. By pleading
guilty, Obermiller waived his right to raise any allegations of constitutional
violations flowing from the trial court’s resolution of his suppression motion. Thus,
Obermiller is barred from raising on appeal his challenges related to the motion to
suppress.




                                          16
                                January Term, 2016




       {¶ 57} Accordingly, we deny Obermiller’s eighth proposition of law and
the related portion of his fourth proposition of law.
Plea-Hearing Issues
                              Evidentiary challenges
       {¶ 58} We turn now to proposition of law No. 3, in which Obermiller
contends that the three-judge panel violated his statutory and constitutional rights,
as well as Evid.R. 401, 403, and 404, when it elicited and allowed irrelevant,
inadmissible, and prejudicial evidence—including evidence of his prior juvenile
record, testimony regarding his exercise of his right to remain silent, hearsay
testimony, and allegedly prejudicial testimony from a withdrawn witness. Because
proposition of law No. 7 concerns a similar objection to the admission of gruesome
photographs during the R.C. 2945.06 hearing, we also address that claim here.
       {¶ 59} Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without” it. Evid.R. 401. And “[a]ll relevant
evidence is admissible,” subject to certain specified exceptions, Evid.R. 402, unless
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, Evid.R. 403(A). Further, under
Evid.R. 403(B), a trial court has discretion to exclude relevant evidence “if its
probative value is substantially outweighed by considerations of undue delay, or
needless presentation of cumulative evidence.”
       {¶ 60} Initially, Obermiller contends that in capital cases, “heightened
scrutiny” applies to all Evid.R. 403 objections. In support of this argument,
Obermiller invokes State v. Morales, 32 Ohio St.3d 252, 513 N.E.2d 267 (1987).
But the holding in Morales that a “stricter evidentiary standard” applies in capital
cases is limited to the admission of gruesome photographs. State v. Mammone, 139
Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 96. Obermiller offers no
justification for revisiting or expanding our holding in Morales, and we decline to




                                         17
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do so. Accordingly, we reject Obermiller’s claim that in capital cases, a heightened
evidentiary standard applies to all Evid.R. 403 objections.
       {¶ 61} “The trial court has broad discretion in the admission of evidence,
and unless it has clearly abused its discretion and the defendant has been materially
prejudiced thereby, an appellate court should not disturb the decision of the trial
court.” State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). Moreover, a
“three-judge panel is presumed to have ‘considered only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the
contrary.’ ” State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d
1023, ¶ 199, quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968).
       {¶ 62} Further, when a defendant has not raised an objection at trial, plain-
error review applies. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002). Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” To
prevail under the plain-error standard, a defendant must show that an error
occurred, that it was obvious, and that it affected his substantial rights. Barnes at
27 (also stating that an error affects substantial rights under Crim.R. 52(B) only if
it affects the outcome of the trial). We take “[n]otice of plain error * * * with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
                               Prior juvenile record
       {¶ 63} During the direct examination of Stacy Muzic (also referred to in the
transcript as Stacy Lykins), Obermiller’s former stepmother, she testified that she
could not recall being the victim in a 1996 domestic-violence juvenile-court
proceeding against Obermiller, who was 14 years old at the time. She added, “No,
Denny has never put his hands on me. Never.” However, Muzic also testified that
“there’s a lot of stuff” that she does not remember due to injuries she suffered in a
2007 car accident.




                                         18
                                January Term, 2016




       {¶ 64} Obermiller argues that evidence of his prior juvenile record was
inadmissible under Evid.R. 403(B). He contends that this evidence was particularly
damaging and prejudicial because it “involved a violent act against another of
Obermiller’s caregivers.”
       {¶ 65} Because Obermiller failed to object to Muzic’s testimony at the
hearing regarding the domestic-violence incident, he has forfeited all but plain-
error review. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,
¶ 14. We find no plain error here. Obermiller’s alleged prior juvenile adjudication
for domestic violence was not introduced or admitted into evidence. Muzic denied
any memory of a 1996 domestic-violence incident involving Obermiller, and the
state did not introduce any other evidence that would tend to establish the alleged
juvenile adjudication for domestic violence. Additionally, the record does not
demonstrate that the questioning of Muzic about the incident affected the outcome
of the case. Therefore, Obermiller cannot demonstrate plain error with respect to
this evidence.
                       Testimony about Obermiller’s silence
       {¶ 66} During the plea hearing, the state offered the testimony of Detective
Henderson, the investigating officer in charge of Obermiller’s case. Henderson had
been summoned to Licking County after Obermiller was arrested there and
transported him to Cuyahoga County. After the defense waived cross-examination,
one of the panel members asked Henderson if Obermiller had made any statements
to him. Before Henderson finished his response, the state objected on the basis that
the questioning was directed at Obermiller’s invocation of his right to remain silent.
However, the panel member stated that the right to object belonged to Obermiller
and that any objection therefore had to come from him. But Obermiller offered no
objection.
       {¶ 67} The panel resumed its questioning, and the same judge asked
Henderson, “Did you have an opportunity to question him?” Henderson answered




                                         19
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that he had “intended to talk to him” but that once Obermiller was advised of his
Miranda rights, “he told me pretty much that he didn’t have anything on his mind
to talk about and chose not to speak to me.” The panel member again asked
Henderson whether Obermiller had made any statements other than at the time he
was arrested, and Henderson replied that there were no other statements.
       {¶ 68} It is improper for either the prosecutor or the court to comment on a
defendant’s invocation of his right to remain silent. Griffin v. California, 380 U.S.
609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). However, we have held that “[a]
single comment by a police officer as to a suspect’s silence without any suggestion
that the jury infer guilt from the silence constitutes harmless error.” State v. Treesh,
90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001), citing Meeks v. Havener, 545 F.2d
9, 10 (6th Cir.1976). Moreover, “[j]udges, unlike juries, are presumed to know the
law. Judges are trained and expected to disregard any extraneous influences in
deliberations.” State v. Davis, 63 Ohio St.3d 44, 48, 584 N.E.2d 1192 (1992).
       {¶ 69} Because Obermiller did not raise an objection at trial, we review his
claim for plain error. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,
at ¶ 14. Henderson’s testimony about Obermiller’s silence was not materially
different from a single, isolated comment. And here, the testimony was made to a
three-judge panel during a guilty-plea hearing. Thus, even if the panel erred in its
questioning of Henderson, we cannot say that the error affected Obermiller’s
substantial rights, because neither the panel’s questions nor the detective’s answers
implied guilt. See Crim.R. 52(B); Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240;
Treesh at 480. Obermiller has failed to establish plain error.
                               Unchallenged hearsay
       {¶ 70} Obermiller argues that the panel should have limited the introduction
of inadmissible hearsay. He does not specify what testimony was inadmissible
hearsay, but he points out that during the plea hearing, a member of the panel stated
that Obermiller had failed to object to “some substantial testimony here as to




                                          20
                                January Term, 2016




hearsay conversations with the father of the defendant.” This comment focused on
conversations that Michael Rimar, Obermiller’s employer, had had with
Obermiller’s father, Denny Lykins. In particular, Rimar testified that Lykins had
told him that Obermiller “had killed his grandparents” and had been arrested for a
double homicide. Rimar then testified that when he realized that he had purchased
a number of items from Obermiller around the time of the murders, he tried to reach
Lykins again. Rimar further testified that he later gave all of the items—including
the flat-screen television set that had been in the Schneiders’ home—to Lykins,
who provided them to the police.
       {¶ 71} When questioned by a member of the panel about the failure to
object, defense counsel stated that he had followed Obermiller’s instructions not to
object to the hearsay, and counsel stated that this was not his chosen strategy.
Obermiller personally confirmed for the court that it was his voluntary decision to
instruct defense counsel not to object.
       {¶ 72} We are limited to plain-error review as a result of Obermiller’s
failure to object when the alleged hearsay was introduced. Fitzpatrick, 102 Ohio
St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 66. Obermiller cannot meet the
plain-error standard because, even if a portion of Rimar’s testimony was
inadmissible hearsay, the record belies that its admission affected Obermiller’s
substantial rights. See generally Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240;
Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph two of the syllabus.
Obermiller pleaded guilty to the indictment, and upon his arrest, he had confessed
to the arresting officers that he had murdered his grandmother. He has offered no
evidence to rebut the presumption that the panel considered “ ‘only the relevant,
material, and competent evidence in arriving at its judgment.’ ” Fitzpatrick at ¶ 66,
quoting White, 15 Ohio St.2d at 151, 239 N.E.2d 65.




                                          21
                             SUPREME COURT OF OHIO




                     Consideration of “prejudicial innuendo”
       {¶ 73} Obermiller contends that the panel “may have” considered testimony
that placed before it “prejudicial innuendo” about the nature of images found on a
computer in the Schneiders’ home. The state called Natasha Branam, a “computer
forensic specialist,” to testify at the hearing about her examination of the computer.
After the state had begun to question Branam, the defense objected. The prosecutor
told the court that the state intended to use the computer information to show that
Obermiller had been “accessing Internet porn sites.” But the state ultimately
withdrew Branam as a witness in light of objections by defense counsel.
Furthermore, the state did not seek to admit Branam’s forensic report, which
included copies of the images recovered from the computer.
       {¶ 74} The panel later called Branam back as a court’s witness. Branam’s
testimony as a court’s witness began by focusing on text messages sent to and from
Obermiller’s cell phone; those messages are not at issue in this appeal. After that
testimony ended, a panel member asked Branam a question about the computer she
had examined, and the defense objected again to any testimony about the contents
of the computer. The prosecutor told the court that the images on the computer
were of “a certain nature that may be relevant to the way that perhaps Miss
Grandma Schneider died or in terms of being tied up and all of that, of a sexual
nature.” The prosecutor further stated that Branam would be able to testify that the
images were downloaded “some months” prior to Obermiller’s arrest.
       {¶ 75} But the panel did not proceed to elicit testimony from Branam
regarding the images. The panel took a recess, and upon the panel’s return, a
member stated, “We’re not going to at this point delve into the pornography issues.”
There is no indication in the record that the panel ever revisited this topic.
       {¶ 76} The record simply does not demonstrate that any information about
the images on the computer was admitted into evidence or that the panel considered
in its deliberations the state’s description of what the testimony might have




                                          22
                               January Term, 2016




revealed. Obermiller fails to point to any evidence in the record that would support
his speculation that the court considered the information.            Consequently,
Obermiller does not establish plain error.
                              Gruesome photographs
       {¶ 77} Obermiller contends that the panel erroneously considered gruesome
photographs and that the “cumulative use” of the images violated Evid.R. 403. He
also argues that the introduction of these gruesome photographs violated his federal
and state constitutional rights to a fair trial, due process, and a reliable
determination of guilt.
       {¶ 78} During the plea hearing, the state introduced hundreds of
photographs showing every aspect of the homicide investigation. Many of these
photographs depicted Obermiller’s victims, both as they were found and as they
underwent autopsies. But numerous photographs also depicted the crime scene
without the victims, and others showed items such as the coins that Obermiller had
allegedly taken from the Schneiders’ home and the car that Obermiller was using
when he was arrested.
       {¶ 79} Because Obermiller pleaded guilty, “the admission of gruesome
crime-scene or autopsy photographs could not have affected the guilty verdict.”
State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 136. Thus,
we consider only the effect of the alleged error upon the panel’s decision to impose
the death penalty.
       {¶ 80} In the penalty phase, Obermiller failed to object to the reintroduction
of the photographs. Thus, Obermiller waived all but plain-error review. Ketterer
at ¶ 137. The photographs portray the nature and circumstances of the double
homicide, and they are not repetitive or cumulative. See id. at ¶ 138. Obermiller
offers no evidence to rebut the presumption that the three-judge panel considered
only the relevant, material, and competent evidence in arriving at its judgment or
to establish that he was prejudiced by the photographs. Moreover, because it is




                                         23
                            SUPREME COURT OF OHIO




permissible for a trial court to allow evidence presented in the guilt phase to be
repeated in the mitigation phase, it was not improper for the court to readmit the
photographs for the mitigation phase. State v. Vrabel, 99 Ohio St.3d 184, 2003-
Ohio-3193, 790 N.E.2d 303, ¶ 73. Thus, Obermiller has not established plain error
with respect to the admission of the photographs.
       {¶ 81} Based on the foregoing regarding the evidentiary challenges raised,
Obermiller fails to establish plain error. Thus, we reject propositions of law Nos.
3 and 7.
                         Ineffective assistance of counsel
       {¶ 82} In proposition of law No. 4, Obermiller argues that his counsel
provided constitutionally ineffective assistance throughout the plea hearing and
mitigation phase. See Sixth and Fourteenth Amendments to the U.S. Constitution;
Ohio Constitution, Article I, Section 10. Obermiller contends that defense counsel
were constitutionally ineffective for the following failures: not making opening and
closing arguments during both phases; not cross-examining the state’s witnesses;
and not objecting to prosecutorial misconduct during the plea hearing, to the
introduction of allegedly inadmissible evidence elicited by both the state and the
panel, to the state’s use of graphic photographs, and to the panel’s questions to
Detective Henderson regarding Obermiller’s invocation of his right to remain
silent. He also maintains that counsel failed to file a “meaningful motion to
suppress” and failed to “brief mitigating factors for the trial court.” In response,
the state asserts that Obermiller’s refusal to allow defense counsel to actively
defend him throughout the proceedings precludes a finding that defense counsel’s
performance was deficient in any respect.
       {¶ 83} The standard for addressing ineffective-assistance-of-counsel claims
is two-fold: first, the defendant must show that his counsel’s performance was
deficient, and second, he must show that his counsel’s deficient performance




                                        24
                                 January Term, 2016




prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
                                Deficient performance
          {¶ 84} The deficient-performance prong requires Obermiller to establish
that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed * * * by the Sixth Amendment.”            Id.   This prong “is
necessarily linked to the practice and expectations of the legal community: ‘The
proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.’ ” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010), quoting Strickland at 688. And in any case in which
an ineffective-assistance claim is raised, “the performance inquiry must be whether
counsel’s assistance was reasonable considering all the circumstances.” Strickland
at 688.
          {¶ 85} Prevailing professional norms dictate that with regard to decisions
pertaining to legal proceedings, “a lawyer must have ‘full authority to manage the
conduct of the trial.’ ” State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315,
903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646,
98 L.Ed.2d 798 (1988).
          {¶ 86} However, counsel’s professional duties do not exist in a vacuum. In
effectuating legal representation, counsel is bound by the requirements of the Ohio
Rules of Professional Conduct. Those rules provide that “a lawyer shall abide by a
client’s decisions concerning the objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the means by which they are to be
pursued.” Prof.Cond.R. 1.2(a). Thus, an attorney has a duty to consult with the
client on important matters that arise during the proceedings, and trial counsel does
not perform deficiently when counsel heeds the client’s wishes as to the objectives
of litigation. See State v. Griffith, 8th Dist. Cuyahoga No. 97366, 2012-Ohio-2628,
¶ 24, citing State v. Cowans, 87 Ohio St.3d 68, 80-81, 717 N.E.2d 298 (1999). For




                                          25
                             SUPREME COURT OF OHIO




example, an attorney typically does not render ineffective assistance “by declining,
in deference to a client’s desires, to present mitigation.” Cowans at 81.
       {¶ 87} Here, prior to arraignment, the trial court appointed two death-
penalty-certified attorneys to represent Obermiller. Before Obermiller entered a
guilty plea, defense counsel zealously litigated his case.           Counsel filed
approximately 30 pretrial motions (including a motion to suppress statements
Obermiller had made at the time of his arrest), hired a defense investigator, a
mitigation expert, and a psychologist to evaluate Obermiller’s competency, and
obtained numerous documents regarding Obermiller’s history.
       {¶ 88} But the record demonstrates that from the earliest stages of this
litigation—and even after he withdrew his request for self-representation—
Obermiller refused to cooperate with his counsel and rejected their advice regarding
most issues. For example, during the evidentiary hearing, the panel offered the
defense the opportunity to cross-examine each of the state’s 22 witnesses. But
defense counsel consistently responded that Obermiller had told them that he did
not want them to cross-examine the witnesses.
       {¶ 89} Similarly, during the evidentiary hearing, defense counsel raised
only a few objections to testimony and exhibits, prompting a panel member to ask
whether it was the defense’s strategy not to object to inadmissible evidence.
Defense counsel candidly explained that the attorneys were following Obermiller’s
express instructions not to object. And counsel responded affirmatively when a
panel member asked whether the attorneys felt that following Obermiller’s orders
regarding objections had “interfered with your ability to present the defense that
you feel that you could have presented as counsel?” Panel members also directly
addressed Obermiller, who repeatedly indicated that it was, in fact, his decision to
not allow his attorneys to object in most instances and to not allow them to cross-
examine witnesses. In addition, Obermiller was provided the opportunity to give a
closing argument at the plea hearing, but he refused to allow his counsel to do so.




                                         26
                               January Term, 2016




       {¶ 90} Following the panel’s finding of guilt as to all counts and
specifications in the indictment, Obermiller asked the panel to proceed immediately
to sentencing. Obermiller waived mitigation and otherwise would not allow his
attorneys to put on any mitigating evidence. And finally, Obermiller would not
allow his counsel to give a closing argument at the mitigation hearing.
       {¶ 91} Given all of the circumstances, Obermiller has not demonstrated that
defense counsel’s performance was constitutionally deficient. The record is replete
with evidence that Obermiller’s objective was to plead guilty as charged and to
offer no mitigation during sentencing. Obermiller instructed his counsel to refrain
from objecting, cross-examining the state’s witnesses, offering opening statements
and closing arguments during both phases, and offering any mitigating evidence.
Had defense counsel ignored Obermiller’s instructions, cross-examination and
other tools of advocacy might have interfered with Obermiller’s desire to present
no defense.
       {¶ 92} While we recognize that not every tactical decision requires client
approval, Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, at
¶ 24, there is a difference between the performance of counsel who exercises his or
her professional judgment not to pursue a certain trial tactic and the performance
of counsel who is being directed by the client to not pursue a certain trial tactic,
even against counsel’s advice.     In this latter circumstance, present here, we
conclude that counsel’s performance in abiding by Obermiller’s instructions was
not deficient performance under Strickland.
                                     Prejudice
       {¶ 93} Even assuming that Obermiller could demonstrate that defense
counsel performed deficiently, he must also prove that he was prejudiced by
counsel’s deficient performance. Strickland, 466 U.S. at 691-692, 104 S.Ct. 2052,
80 L.Ed.2d 674.




                                        27
                             SUPREME COURT OF OHIO




       {¶ 94} Obermiller knowingly, intelligently, and voluntarily entered a guilty
plea to the indictment and has not challenged his plea on appeal. The three-judge
panel conducted an evidentiary hearing under R.C. 2945.06 and, after deliberating,
it found “unanimously that the State has produced evidence that convinces the panel
beyond a reasonable doubt as to the defendant’s guilt as to each essential element
of each count and each specification.” Because the evidence of Obermiller’s guilt
was overwhelming, no reasonable probability could exist that but for counsel’s
deficiencies, the result of the proceeding would have been different. Strickland at
695.
       {¶ 95} Nor can Obermiller establish prejudice regarding his contention that
defense counsel was constitutionally ineffective for failing to argue mitigating
factors to the panel. Obermiller acknowledges that he voluntarily waived the
presentation of mitigating evidence. Yet he argues that despite the waiver of
mitigation, “counsel could have and should have taken the opportunity to at least
highlight the evidence that had already been presented.”
       {¶ 96} But the panel independently reviewed the evidence and found that
some mitigating evidence had been presented through the testimony of the state’s
witnesses. In addition, the sentencing opinion identifies the mitigating evidence
that the panel took into consideration in its deliberations. Accordingly, even if
Obermiller could establish that defense counsel performed deficiently by not
presenting mitigating evidence to the panel, he is unable to establish that but for the
deficiencies, there is a reasonable likelihood that he would have received a life
sentence.    The record demonstrates that even without the presentation of a
mitigation defense, the panel considered mitigating evidence presented through the
witnesses.
       {¶ 97} For all these reasons, we reject Obermiller’s fourth proposition of
law.




                                          28
                               January Term, 2016




                            Prosecutorial misconduct
       {¶ 98} In proposition of law No. 6, Obermiller argues that the prosecutor’s
cumulative misconduct rendered his trial unfair in violation of his rights under the
federal and state Constitutions.      See Fourteenth Amendment to the U.S.
Constitution; Ohio Constitution, Article I, Section 16.
       {¶ 99} To evaluate a claim of prosecutorial misconduct, we must determine
whether the challenged conduct was improper and, if so, whether it prejudicially
affected the defendant’s substantial rights. State v. Maxwell, 139 Ohio St.3d 12,
2014-Ohio-1019, 9 N.E.3d 930, ¶ 243. The benchmark of the prosecutorial-
misconduct analysis is “ ‘the fairness of the trial, not the culpability of the
prosecutor.’ ” State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d
959, ¶ 135, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982).
                              Victim-impact evidence
       {¶ 100} First, Obermiller contends that the prosecutor improperly elicited
victim-impact evidence. We review this claim for plain error because Obermiller
did not object. See State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007,
824 N.E.2d 504, ¶ 89.
       {¶ 101} The United States Supreme Court has described victim-impact
testimony in a capital case as “evidence relating to the personal characteristics of
the victim and the emotional impact of the crimes on the victim’s family.” Payne
v. Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). And we
have “permitted victim-impact testimony in capital cases when the testimony * * *
was not overly emotional or directed to the penalty to be imposed.” State v.
Hartman, 93 Ohio St.3d 274, 292, 754 N.E.2d 1150 (2001).
       {¶ 102} Obermiller describes the challenged testimony as improperly
“painting the victims as kind and giving and Obermiller as taking advantage of that
kindness.”   Obermiller also claims that this evidence was inadmissible and




                                         29
                              SUPREME COURT OF OHIO




collateral, and he argues, quoting State v. White, 15 Ohio St.2d at 151, 239 N.E.2d
65, that it “ ‘inflame[d] the passion of the jury.’ ”
        {¶ 103} Specifically, Obermiller contends that the state introduced
improper victim-impact evidence from Candace Flagg, a granddaughter of Candace
Schneider. Flagg’s testimony was crucial to establish the timeline of events leading
up to the discovery of the bodies by police. Flagg also provided background
information about the victims, including details about their personal property and
interests, and she discussed Obermiller’s relationships with various family
members. For instance, Flagg testified that Candace Schneider had sent Obermiller
care packages while he was incarcerated, had allowed Obermiller to have access to
the Schneiders’ campsite where they had a camper parked, and had allowed
Obermiller to reside with the Schneiders upon his release from prison in 2009, even
though Donald was opposed to it.
        {¶ 104} Obermiller argues that the panel then “picked up on this theme”
because when the panel later recalled Obermiller’s former girlfriend, Gina
Mikluscak, and it called Stacy Muzic, Obermiller’s former stepmother, to the stand,
the panel asked both of them questions that led to testimony about Candace’s good
nature. But the evidence in the record does not support Obermiller’s contention
that the panel considered improper victim-impact evidence in arriving at its
decision. First, the usual presumption that the panel considered only relevant
evidence applies here. Next, the evidence was not “overly emotional” and was not
“directed to the penalty,” and thus, it was permissible. Hartman at 293. Third, to
the extent that the panel elicited some of this evidence, Obermiller cannot establish
prosecutorial misconduct. We cannot say that but for the error, the outcome of the
trial clearly would have been otherwise. Accordingly, we reject Obermiller’s
argument that improper victim-impact testimony prejudiced the outcome of his
case.




                                           30
                                January Term, 2016




                                Branam’s testimony
       {¶ 105} Alleging prosecutorial misconduct, Obermiller again argues that
the state placed “prejudicial innuendo” in the record during Natasha Branam’s
testimony about images found on a computer in the Schneiders’ home.               To
demonstrate prejudice in this context, “a defendant must show that the improper
remarks or questions were so prejudicial that the outcome of the trial would clearly
have been otherwise had they not occurred.” State v. Collier, 8th Dist. Cuyahoga
No. 78960, 2001 WL 1243925, *5 (Oct. 18, 2001), citing State v. Campbell, 69
Ohio St.3d 38, 51, 630 N.E.2d 339 (1994).
       {¶ 106} For the same reasons we previously rejected Obermiller’s plain-
error challenge to this information, we conclude that Obermiller cannot establish
prejudice in this context. The prosecutor’s statements regarding Branam’s potential
testimony was offered to a three-judge panel, “which is presumed to consider only
relevant, competent and admissible evidence in its deliberations.” Davis, 63 Ohio
St.3d at 48, 584 N.E.2d 1192. Moreover, immediately before Branam began to
testify after being recalled by the panel, a panel member specifically stated: “Let’s
see what’s relevant and we’ll disregard what isn’t relevant, and consider what is.”
There is nothing in the record demonstrating that the panel considered the
prosecutor’s statements about Branam’s possible testimony in its deliberations
regarding Obermiller’s guilt or his sentence.
       {¶ 107} In sum, we conclude that Obermiller failed to establish that
prosecutorial misconduct infected either phase of his capital trial and reject
proposition of law No. 6.
                                 Cumulative error
       {¶ 108} In proposition of law No. 10, Obermiller argues that his trial was
“replete with prejudicial error” and that the cumulative impact of those errors
rendered the proceedings fundamentally unfair.




                                         31
                              SUPREME COURT OF OHIO




       {¶ 109} A conviction will be reversed for cumulative error only “when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even though
each of the numerous instances of trial-court error does not individually constitute
cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971
N.E.2d 865, ¶ 223. As detailed above, Obermiller has not proven that multiple
errors occurred during the trial-court proceedings. Therefore, the cumulative-error
doctrine does not apply, and we reject proposition of law No. 10.
Sentencing Issues
                                    Settled issues
       {¶ 110} In proposition of law No. 9, Obermiller presents six constitutional
challenges to Ohio’s capital-punishment scheme. He also argues that the death-
penalty statutes violate international law and treaties.
       {¶ 111} We have previously considered and squarely rejected each of
Obermiller’s constitutional claims. See State v. Thompson, 141 Ohio St.3d 254,
2014-Ohio-4751, 23 N.E.3d 1096, ¶ 279-280. We have also held that Ohio’s death-
penalty statutes do not violate international law or treaties. Id. Thus, we reject
proposition of law No. 9.
                            Errors in sentencing opinion
       {¶ 112} In his second proposition of law, Obermiller contends that the panel
considered    improper      aggravating   circumstances,    erroneously    considered
nonstatutory aggravating circumstances in the mitigation phase, and failed to
meaningfully consider mitigating evidence.
              Consideration of improper aggravating circumstances
       {¶ 113} Obermiller argues that in its sentencing opinion, the three-judge
panel improperly weighed the specification for felony murder predicated on rape
that was applicable only to Candace’s murder when it sentenced him for Donald’s
murder.
       {¶ 114} The sentencing opinion states:




                                          32
                               January Term, 2016




               After merger of the counts, this Court proceeded to the
       second phase of this trial. Defendant pled guilty to the indictment
       and was convicted of three aggravating circumstances that were
       alleged as part of Counts 1 and 4, namely:
               1. That the aggravated murder was part of a course of
       conduct involving the purposeful killing of or attempt to kill two or
       more persons, namely, Donald and Candace Schneider.              R.C.
       2929.04(A)(5).
               2. That the Defendant committed the Aggravated Murders
       while he was committing, attempting to commit, or fleeing
       immediately after committing or attempting to commit the rape of
       Candace Schneider. R.C. 2929.04(A)(7).
               3.    That the victims of the Aggravated Murder were
       witnesses to an offense who were purposely killed to prevent the
       victim’s testimony in any criminal proceeding. R.C. 2929.04(A)(8).


(Emphasis added.) Thus, Obermiller is correct that this part of the sentencing
opinion identifies all three remaining specifications as applicable to both murders.
       {¶ 115} However, the record considered as a whole—in particular the
panel’s announcement of its sentencing decision from the bench near the end of the
sentencing hearing and also the entirety of the sentencing opinion—makes clear
that the panel did not apply the R.C. 2929.04(A)(7) felony-murder specification
when it sentenced Obermiller for Donald’s murder. Thus, Obermiller is incorrect
when he contends that “[t]he court’s improper weighing of the aggravating
circumstances tipped the scale in favor of death for the aggravated murder of
Donald Schneider.”




                                         33
                              SUPREME COURT OF OHIO




          {¶ 116} In any case, “whatever errors the trial court may have committed in
weighing the aggravating circumstance[s] against any mitigating factors” will be
remedied by this court’s “careful independent reweighing” conducted later in this
opinion. State v. Lott, 51 Ohio St.3d 160, 170, 555 N.E.2d 293 (1990), citing
Clemons v. Mississippi, 494 U.S. 738, 748, 110 S.Ct. 1441, 108 L.Ed.2d 725
(1990).
              Consideration of nonstatutory aggravating circumstances
          {¶ 117} Obermiller argues     that   the panel    improperly considered
nonstatutory aggravating circumstances developed through its examination of Gina
Mikluscak. Specifically, he contends that “[t]he transcript in this case is replete
with instances of the three judge panel pressing witnesses to testify to improper
nonstatutory aggravating circumstances.” Obermiller reasons that because the
panel members questioned Mikluscak about these matters, “it must be concluded
they believed this information was relevant and they considered it in their
sentencing decision.”
          {¶ 118} The panel recalled Mikluscak as a court’s witness and asked her
many questions, including about her view of Obermiller’s mental health. Defense
counsel objected, but the panel overruled the objection and ultimately elicited
testimony regarding Mikluscak’s observations of Obermiller’s mental health.
Responding to other questions from the panel members, Mikluscak also detailed
how Obermiller had beaten her, explained that he was prone to fits of anger, stated
that he was in good physical shape (as opposed to Donald Schneider, who was not
a large or powerful man), and testified regarding various other matters.
          {¶ 119} Obermiller’s assertion that because the panel questioned Mikluscak
about these issues, the panel must have relied upon nonstatutory aggravating
circumstances is flawed. The sentencing opinion reveals that the only aggravating
circumstances on which the panel relied were the specifications left after merger:
(1) course of conduct, (2) witness murder, and (3) murder during the rape of




                                          34
                                      January Term, 2016




Candace Schneider. And “[w]hen a court correctly identifies the aggravating
circumstances in its sentencing opinion, we will presume that the court relied only
on those circumstances and not on nonstatutory aggravating circumstances.” State
v. Clemons, 82 Ohio St.3d 438, 447, 696 N.E.2d 1009 (1998), citing State v. Hill,
73 Ohio St.3d 433, 441, 653 N.E.2d 271 (1995).
         {¶ 120} Obermiller’s reliance on State v. Davis, 38 Ohio St.3d 361, 528
N.E.2d 925 (1988), to support his argument is misplaced. Unlike the sentencing
opinion in this case, the trial court’s sentencing opinion in Davis expressly listed
five aggravating circumstances that the court considered, four of which were
nonstatutory. Id. at 372. We vacated Davis’s death sentence, holding that our
independent reweighing could not cure the error “because we cannot know if the
result of the weighing process by the three-judge panel would have been different
had the impermissible aggravating circumstances not been present.” Id.
         {¶ 121} Here, in contrast, the three-judge panel identified only the
applicable statutory aggravating circumstances in its sentencing opinion and listed
no improper nonstatutory aggravating circumstances. Thus, Obermiller has not
rebutted the presumption that the court relied only upon the aggravating
circumstances it identified.
                          Failure to consider mitigating evidence
         {¶ 122} Obermiller also contends that the panel failed to meaningfully
consider mitigating evidence. Specifically, Obermiller complains that the panel
failed to fully consider the “transitory nature” of his childhood, his age, the physical
and emotional abuse inflicted upon him by Donald, and his history of mental illness.
         {¶ 123} Obermiller waived his right to present mitigating evidence after he
was found competent to do so.3 Regardless, the panel independently determined

3
  The panel held what is commonly called an “Ashworth hearing” prior to accepting Obermiller’s
waiver of mitigation. See State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999), paragraphs
one and two of the syllabus (detailing the procedures to be followed by a trial court to determine
whether a defendant’s waiver of mitigation in a capital case is valid). Obermiller has not challenged




                                                 35
                                  SUPREME COURT OF OHIO




that mitigating evidence had been presented during the plea hearing, as stated by
one of the panel members:


         Mr. McDonnell, does your client understand that throughout the
         course of the first phase of the trial, * * * evidence [and] testimony
         [has shown] that there are substantial elements here that a * * *
         substantial mitigation defense could be presented?                   Mitigating
         factors could be presented, you know, starting with the murder of
         his mother, the disruptive childhood he had, the passing of his
         custody from one situation to another, the incarceration of his father,
         the incarceration of his stepmother, the situation where it was
         testified to by * * * his stepmother that there was potentially a
         situation where his grandfather kept him in an attic and withheld
         food and water for a period of time in his early adolescence, * * *
         that he was incarcerated by youth services when he was about 15
         years old, that he, while there, * * * also committed another
         felonious assault, that he was incarcerated continuously from 15
         through 27. And these are, you know, kernels of * * * mitigation
         factors that are substantial and that have been used probably in
         similar cases effectively.


         {¶ 124} Additionally, the sentencing opinion specifies the mitigating
factors the panel gleaned from the testimony and evidence. For instance, the panel
identified as mitigating evidence Obermiller’s remorse, his admission of guilt to
the indictment, his transitory and disruptive childhood, his lack of parental
guidance, the loss of his mother to violent crime at the age of two, his history of

his waiver of mitigation in this appeal, but his waiver is discussed in further detail later in this
opinion in connection with our independent sentence evaluation.




                                                36
                                January Term, 2016




criminal conduct beginning in his teenage years, Donald’s cruel treatment of him
when Obermiller was a child, the suicide of his wife, and his educational history.
Thus, contrary to Obermiller’s assertion, we find that the panel did meaningfully
consider mitigating evidence, including the abuse he suffered at Donald’s hands.
       {¶ 125} Obermiller is correct that the sentencing opinion does not
specifically mention his age or mental illness as mitigating factors. But “[w]hile a
sentencing court must consider all evidence of mitigation, it need not discuss each
factor individually.” State v. Phillips, 74 Ohio St.3d 72, 102, 656 N.E.2d 643
(1995), citing Parker v. Dugger, 498 U.S. 308, 314-315, 111 S.Ct. 731, 112 L.Ed.2d
812 (1991). And a trial court’s failure to discuss each mitigating factor in its
sentencing opinion does not give rise to an automatic inference that the factors
absent from the opinion were not considered. State v. Roberts, 137 Ohio St.3d 230,
2013-Ohio-4580, 998 N.E.2d 1100, ¶ 54.
       {¶ 126} We have held that such an inference was warranted, however, when
the sentencing opinion failed to mention the sole mitigating factor presented. Id. at
¶ 55-56 (Roberts’s allocution “was the only relevant matter that was specifically
placed before the trial court as mitigation,” and the court’s failure to mention the
allocution in the sentencing opinion warranted the inference that the court failed to
consider the allocution [emphasis sic]). But here, despite Obermiller’s failure to
present any mitigating evidence, the sentencing opinion discussed multiple
mitigating factors that the panel independently determined were supported by the
evidence. Accordingly, we conclude that the panel’s failure to discuss Obermiller’s
age and mental health in the sentencing opinion was not error.
       {¶ 127} Even assuming that the panel erred, our independent weighing
“ ‘provides a procedural safeguard against the arbitrary imposition of the death
penalty.’ ” State v. Bey, 85 Ohio St.3d 487, 505, 709 N.E.2d 484 (1999), quoting
State v. Holloway, 38 Ohio St.3d 239, 527 N.E.2d 831 (1998), paragraph two of the
syllabus. Thus, our “independent sentence evaluation and reweighing can cure the




                                         37
                             SUPREME COURT OF OHIO




effect of errors in previous death-penalty sentencing decisions.” Bey at 505, citing
State v. McGuire, 80 Ohio St.3d 390, 395, 686 N.E.2d 1112 (1997), and State v.
Hill, 75 Ohio St.3d 195, 211, 661 N.E.2d 1068 (1996).
       {¶ 128} For the foregoing reasons, we reject proposition of law No. 2.
Independent Sentence Evaluation
       {¶ 129} In proposition of law No. 5, Obermiller argues that the imposition
of the death sentences was unreliable and inappropriate because the aggravating
circumstances do not outweigh the mitigating factors. This claim dovetails with
our obligation to independently review Obermiller’s death sentences for
appropriateness and proportionality. R.C. 2929.05(A).
       {¶ 130} To conduct the independent review of a death sentence under R.C.
2929.05(A), we must determine whether (1) the evidence supports the panel’s
finding of aggravating circumstances, (2) the aggravating circumstances outweigh
the mitigating factors, and (3) Obermiller’s death sentence is proportionate to those
affirmed in similar cases. Id.
                           Aggravating circumstances
       {¶ 131} Obermiller pleaded guilty to and was convicted of all charges and
specifications in the indictment. However, at the state’s request, the panel prior to
sentencing merged several of the offenses as well as some of the capital
specifications. After merger, two aggravating circumstances remained regarding
both victims: (1) Obermiller murdered both victims as “part of a course of conduct
involving the purposeful killing of or attempt to kill two or more persons,” R.C.
2929.04(A)(5), and (2) both victims were witnesses “to an offense and [were]
purposely killed in retaliation for [their] testimony in any criminal proceeding,”
R.C. 2929.04(A)(8). And a third aggravating circumstance applied to Candace’s
murder: Obermiller murdered her while “committing, attempting to commit, or
fleeing immediately after committing or attempting to commit * * * rape.” R.C.
2929.04(A)(7).




                                         38
                                 January Term, 2016




       {¶ 132} The evidence adduced during the hearing supports the panel’s
finding of guilt as to both aggravating circumstances related to the murder of
Donald Schneider, and the evidence supports the panel’s finding of guilt as to all
three related to the murder of Candace Schneider.
               Course-of-conduct specification—R.C. 2929.04(A)(5)
       {¶ 133} The murders of Donald and Candace Schneider were purposeful
and part of a single continuing course of conduct. Obermiller’s attacks on Donald
and Candace were linked in time and location. See State v. Sapp, 105 Ohio St.3d
104, 2004-Ohio-7008, 822 N.E.2d 1239, syllabus and ¶ 52 (factors such as time,
location, a common scheme, or a common psychological thread can establish the
factual link necessary to prove a course of conduct). Obermiller murdered the
victims in their home in their bedrooms, and testimony established that both victims
were most likely murdered on or near August 11, 2010.
                Witness-murder specification—R.C. 2929.04(A)(8)
       {¶ 134} The evidence established that Obermiller murdered Donald and
Candace in retaliation for reporting his theft of the stolen coins and to prevent them
from filing a criminal complaint or testifying against him in a future proceeding.
Obermiller was on postrelease control when he stole the coins and would have faced
a return to prison if convicted of theft. The R.C. 2929.04(A)(8) specification
applies even though the state had not filed formal theft charges against Obermiller
prior to the Schneiders’ deaths. State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966,
16 N.E.3d 588, ¶ 191-193. “[A] murder committed for the purpose of preventing
the victim’s testimony in a future or potential criminal proceeding is well within
the statute’s reach.” Id. at ¶ 197.
       {¶ 135} Donald had told police that he suspected that Obermiller stole rare
coins from his home. Indeed, Obermiller had the coins in his possession. The
owner of American Eagle Coin & Jewelry in Cleveland testified that on four
separate occasions in early August 2010, around the time of the murders,




                                         39
                            SUPREME COURT OF OHIO




Obermiller came to his store to sell coins, which Obermiller said had belonged to a
deceased grandfather.
       {¶ 136} The evidence also supports a reasonable inference that Obermiller
knew that Donald and Candace reported, or intended to report, Obermiller’s
involvement in the theft to the police. Phone records established that on August
10, 2010, Donald called Obermiller at 11:23 a.m., approximately 20 minutes before
Donald called police to report the stolen coins.      Additionally, the evidence
demonstrates that Candace was present when a police officer came to the home to
investigate the theft, and therefore, she was fully aware that Donald had reported
Obermiller’s suspected involvement in the theft.
       {¶ 137} Accordingly, sufficient evidence supports the R.C. 2929.04(A)(8)
witness-murder specification as to both victims.
                Felony-murder specification—R.C. 2929.04(A)(7)
       {¶ 138} Finally, the state presented sufficient evidence to prove that
Obermiller murdered Candace while he was “committing, attempting to commit, or
fleeing immediately after committing or attempting to commit” rape.           R.C.
2929.04(A)(7). DNA testing revealed the presence of seminal material on the
vaginal swabs taken during Candace’s autopsy that matched Obermiller’s DNA
profile. And Obermiller was not excluded as the source of epithelial cells found in
the two used condoms found at the scene. Thus, sufficient evidence supports the
R.C. 2929.04(A)(7) specification for Candace’s murder.
                                Mitigating factors
       {¶ 139} We have a duty under R.C. 2929.04(B), for each murder, to weigh
the aforementioned aggravating circumstances against the “nature and
circumstances of the offense,” Obermiller’s “history, character, and background,”
and the six specific mitigating factors enumerated in R.C. 2929.04(B)(1) through
(6). We must also consider “[a]ny other factors that are relevant to the issue of




                                        40
                                  January Term, 2016




whether the offender should be sentenced to death” under R.C. 2929.04(B)(7), the
“catchall” mitigation provision.
                                 Waiver of mitigation
       {¶ 140} Immediately after the panel announced its verdict finding
Obermiller guilty of every count in the indictment, one of his defense attorneys
stated: “After having discussions with Mr. Obermiller over the course of our
representation, it’s his intent to offer no mitigation.” At that time, Obermiller also
waived the opportunity to request a presentence investigation report and a court
psychiatric evaluation.
       {¶ 141} On its own initiative, the panel ordered Obermiller to be evaluated
by the Cuyahoga County Court Psychiatric Clinic for assessment of his competency
to waive mitigation. The court psychiatric clinic issued a report determining that
Obermiller was competent to waive mitigation, and the parties stipulated to the
findings and conclusions in the psychiatric report provided to the court.          In
particular, the report stated that “although Mr. Obermiller has Major Depressive
Disorder, in Partial Remission, he understands the choice between life and death
and has the capacity to knowingly and intelligently decide not to pursue
mitigation.” Accordingly, the panel conducted a waiver colloquy with Obermiller
and reasonably concluded that his decision to waive mitigation was knowing,
intelligent, and voluntary. State v. Ashworth, 85 Ohio St.3d 56, 62, 706 N.E.2d
1231 (1999).
                          Evidence of mitigation in the record
       {¶ 142} As noted above, Obermiller presented no mitigation, and he also
declined to make an unsworn statement. However, irrespective of Obermiller’s
decision to forgo the presentation of mitigating evidence, R.C. 2929.05(A) requires
us to “ ‘review and independently weigh all of the facts and other evidence
disclosed in the record in the case and consider the offense and the offender to
determine whether the aggravating circumstances the offender was found guilty of




                                          41
                            SUPREME COURT OF OHIO




committing outweigh the mitigating factors in the case.’ ” (Emphasis sic.) Vrabel,
99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, at ¶ 77, quoting R.C.
2929.05(A).
       {¶ 143} Obermiller was born on February 11, 1982. He was two and a half
years old when his mother was murdered. His father, Denny Lykins, testified that
when Obermiller’s mother was murdered, he was unfit to care for Obermiller. Soon
thereafter, Lykins was sentenced to prison for approximately five years, and
Obermiller was sent to live with the Schneiders. Obermiller lived with them until
he was approximately 13 or 14 years old.
       {¶ 144} Stacy Muzic, who was Obermiller’s stepmother and also was a first
cousin of Obermiller’s mother, testified that Donald abused Obermiller while he
was living with the Schneiders. Recalling one occasion in particular, Muzic
testified: “I was on the phone with Little Denny one time when he was 3 and
Donald hit him in the head with the phone because he answered it.” She went on
to explain that “[t]hroughout Denny’s life, * * * I remember him telling me how
his grandfather locked him upstairs in the attic, made him urinate in cans and not
get fed for a couple of days.” Muzic testified that Donald did these things to both
Obermiller and Obermiller’s brother. Furthermore, Obermiller had told Muzic that
he had informed Candace about Donald’s physical and emotional abuse but that
Candace had not believed him. In addition, multiple witnesses testified about
Donald’s general dislike and distrust of Obermiller and about Donald’s ongoing
unhappiness that Candace continually supported her grandson.
       {¶ 145} In his early teenage years, Obermiller left the Schneider residence
and moved in with his father and Muzic, who were not yet married at the time. But
within months, due to reasons that were not explained by the witnesses’ testimony,
Obermiller moved in with Muzic’s parents, who were Obermiller’s great aunt and
uncle. Obermiller lived with his great aunt and uncle for less than a year.




                                         42
                                January Term, 2016




       {¶ 146} At age 15, Obermiller committed aggravated robbery and was
sentenced to the custody of the Ohio Department of Youth Services (“DYS”) for
three years. While he was at a DYS facility, Obermiller committed acts that led to
convictions for felonious assault, kidnapping, and escape, and he was sentenced to
prison as an adult. He was incarcerated for nine years and was released in 2009.
According to the report regarding his competency to waive mitigation, during his
incarceration, Obermiller “was married to a guard at Mohican Juvenile Correctional
Facility from March 2001 until 2002 when she committed suicide.”
       {¶ 147} Evidence about Obermiller’s character was introduced by the
testimony of his former girlfriend, Gina Mikluscak.           Mikluscak has known
Obermiller since they were in the first grade together at the same school and became
reacquainted with him when he was released from prison in 2009. She explained
that when Obermiller was released from prison, he was on a daily medication for
depression, but she did not know the specific medication he was taking. Mikluscak
stated that Obermiller had mood swings after he stopped taking the medication, and
she said that he generally became more irritable and short-tempered after that
occurred. The pair ended their relationship in July 2010, shortly before the
murders, although Mikluscak continued to associate with Obermiller and the
Schneiders.
       {¶ 148} In connection with the competency evaluation, psychiatrists with
the court’s psychiatric clinic diagnosed Obermiller with “Major Depressive
Disorder, Recurrent, In Partial Remission.” Their report describes Obermiller as
“having the lowest mood of his life” and “feelings of worthlessness” after his arrest
for the Schneiders’ murders.       As quoted in the report, Obermiller told the
psychiatrists that after his arrest in 2010, he went through times when what he had
done and his current situation “ ‘really hit me and everything else it entails, how
much it hurt my family[;] * * * I was hateful of myself[;] * * * I felt worthless, like




                                          43
                             SUPREME COURT OF OHIO




a maggot[;] * * * I had a lot of nightmares about what I did[;] * * * didn’t eat much,
lost about 20 pounds.’ ”
       {¶ 149} As described in the competency evaluation, Obermiller felt remorse
for murdering his grandparents. His remorse is supported by other evidence as
well; his father testified that Obermiller was crying on the telephone and said that
he was sorry when he admitted to killing the Schneiders, and Mikluscak also
described Obermiller as crying and upset when he first told her that he had gotten
into some trouble for which he was very sorry.
                            Weight of mitigating factors
       {¶ 150} Obermiller argues that this court should assign weight to the
following mitigating factors: (1) his history and background, (2) his age, R.C.
2929.04(B)(4), and (3) his decision to plead guilty and his remorse for Donald and
Candace’s murders, R.C. 2929.04(B)(7).
       {¶ 151} Obermiller’s history and background are entitled to some weight in
mitigation. As explained above, Obermiller’s mother was murdered when he was
two and a half years old, and his father was unfit to care for him and was soon
thereafter imprisoned. Obermiller’s childhood was unstable, and for most of
Obermiller’s youth, he had no parental care or positive parental role models.
       {¶ 152} Obermiller spent a majority of his youth in a home where he
apparently was abused by Donald, and he spent the majority of his teenage and
young adult years in prison. He was released at the age of 27, and within one year
he committed the murders at issue in this case. Therefore, we assign some
mitigating weight to the difficult and unstable circumstances of Obermiller’s
childhood. See, e.g., Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d
1051, at ¶ 237 (difficult childhood as mitigating factor); State v. Perez, 124 Ohio
St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 244 (same). However, we have
“ ‘seldom given decisive weight to’ a defendant’s unstable or troubled childhood.”




                                         44
                                January Term, 2016




Id. at ¶ 245, quoting State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 265.
       {¶ 153} Obermiller’s argument that his age should be accorded weight in
mitigation under R.C. 2929.04(B)(4) is without merit. He was 28 years old at the
time of the offenses in this case and, while his childhood and youth were fraught
with emotional turmoil and some physical abuse, “ ‘[h]e had reached “an age when
* * * maturity could have intervened,” and [he] “had clearly made life choices as
an adult before committing [these] murder[s].” ’ ” Perez at ¶ 245, quoting State v.
Campbell, 95 Ohio St.3d 48, 53, 765 N.E.2d 334 (2002), quoting State v. Murphy,
65 Ohio St.3d 554, 588, 605 N.E.2d 884 (1992) (Moyer, C.J., dissenting). Thus,
we assign no mitigating weight to Obermiller’s age. See, e.g., State v. Coleman, 85
Ohio St.3d 129, 145, 707 N.E.2d 476 (1999) (R.C. 2929.04(B)(4) mitigating factor
inapplicable when defendant was 27 at the time of the offense); State v.
Fautenberry, 72 Ohio St.3d 435, 441, 650 N.E.2d 878 (1995) (same).
       {¶ 154} Obermiller argues that his long-term incarceration, from ages 15
through 27, renders his “emotional and psychological age” younger than his
physical age and that this should be taken into account for mitigation purposes.
Obermiller has cited no authority for this argument, and he offered no evidence in
mitigation.   Our case law does not support Obermiller’s argument that his
psychological age should be assigned weight under R.C. 2929.04(B)(4). See State
v. Rogers, 17 Ohio St.3d 174, 183, 478 N.E.2d 984 (1985), vacated on other
grounds, sub nom. Rogers v. Ohio, 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452
(1985); State v. Murphy, 65 Ohio St.3d 554, 576, 605 N.E.2d 884 (1992).
Moreover, Obermiller presented no evidence of the effect of long-term
incarceration on a person’s physical age, and the panel was not required to speculate
as to his psychological age.
       {¶ 155} Finally, Obermiller argues that this court should give significant
weight to his decision to plead guilty and his remorse for his crimes. These factors




                                         45
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fall under the catchall provision of R.C. 2929.04(B)(7). But, for the following
reasons, they merit only a modest amount of weight in mitigation.
        {¶ 156} Obermiller’s father and former girlfriend both testified that
Obermiller was distraught after committing the murders. According to his father,
Obermiller stated that he did not “mean” to commit the murders and that he was
extremely “scared” prior to being arrested. Mikluscak testified that a few days after
the murders, Obermiller cried when he first told her that he had gotten into trouble
and that he “said how he broke everybody’s heart, he was very sorry, and just that
he felt bad.”   Finally, the court-ordered competency evaluation includes the
observation that Obermiller “does not believe he deserves forgiveness. He said that
he ‘betrayed’ his grandmother, who was the ‘only’ person who cared for him.” And
Obermiller ultimately entered a guilty plea to the indictment with no plea offer from
the state.
        {¶ 157} But evidence weighing against the existence of remorse was also
presented. For instance, Obermiller fled the county after he committed the offenses,
attempted to persuade Mikluscak to flee with him, and fled on foot when officers
tried to arrest him.   In addition, Obermiller enlisted the help of his former
stepmother to rent the vehicle that he used to leave the area. He also turned the
Schneiders’ gas stove on and left lit candles throughout the house before the bodies
were found, in an apparent attempt to ignite the house to cover up the murders.
Moreover, the court-ordered competency evaluation stated that Obermiller “did not
express remorse for killing his step-grandfather.”
        {¶ 158} Obermiller’s guilty plea deserves some weight, “since guilty pleas
are traditionally accorded substantial weight in imposing a sentence.” Ashworth,
85 Ohio St.3d at 72, 706 N.E.2d 1231, citing Crim.R. 11(C)(3).              And his
“willingness to step forward and take responsibility for his actions, without any
offer of leniency by the state, indicates a person who is remorseful for the crimes
he has committed.” Ashworth at 72.




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       {¶ 159} Further, the evidence showed that Obermiller was, in fact,
remorseful for the rape and murder of his grandmother. Thus, at least with respect
to the murder of Candace, we afford modest weight to Obermiller’s remorse and
acceptance of his responsibility for the murder. However, with respect to Donald’s
murder, we give only minimal weight to Obermiller’s decision to plead guilty.
       {¶ 160} Additional mitigating evidence was presented that also implicates
R.C. 2929.04(B)(7). Specifically, Michael Rimar, the owner of a roofing company,
testified that he hired Obermiller as a laborer for roofing jobs and as part of the
clean-up crew.    According to Rimar, Obermiller was a reliable worker who
followed directions, always wanted to learn more, and sought to advance his
roofing knowledge. We thus give some weight to Obermiller’s employment record
and his character as a reliable and engaged worker. State v. Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 327.
                               Sentence evaluation
       {¶ 161} As described above, although Obermiller waived his right to
present mitigating evidence, mitigating evidence was presented throughout the plea
hearing. And most of the mitigating evidence that we have discussed above is
entitled to at least some weight. We are not, however, convinced that Obermiller’s
actions are sufficiently mitigated by the nature and circumstances of the offense,
his difficult childhood, his remorse and cooperation after his arrest, and the other
factors discussed to render his death sentences inappropriate.
       {¶ 162} With respect to Donald’s murder, the course-of-conduct and
witness-murder specifications are compelling, and they outweigh the mitigating
evidence gleaned from the record. See Mammone, 139 Ohio St.3d 467, 2014-Ohio-
1942, 13 N.E.3d 1051, at ¶ 241 (death penalties appropriate for aggravated murders
of three victims with course-of-conduct and other specifications); State v. Fry, 125
Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 234 (death penalty
appropriate for aggravated murder with witness-murder specification); Osie, 140




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Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, at ¶ 270 (death penalty
appropriate for the two aggravating circumstances of robbery-murder and witness
murder).
       {¶ 163} As noted above, the mitigation applicable to Candace’s murder is
stronger than that applicable to Donald’s. But the three specifications that apply to
Candace’s murder—witness murder, course of conduct, and felony murder
predicated on rape—are also stronger and far outweigh the mitigating factors
present. Obermiller, while subsequently acknowledging the unconditional love that
his grandmother had bestowed upon him, raped Candace before he strangled her to
death. See State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446,
¶ 117 (imposition of death penalty for three aggravating circumstances, including
the defendant’s rape of the elderly victim in her own home prior to murdering her
by strangulation, appropriate in light of modest mitigating evidence).
       {¶ 164} For these reasons, we conclude that the aggravating circumstances
outweigh the mitigating factors for each murder beyond a reasonable doubt.
Accordingly, we hold that the death sentences are appropriate for each murder.
                                  Proportionality
       {¶ 165} The death penalty is also proportionate as to both murders in this
case. We have many times “approved death sentences ‘in cases where the witness-
murder specification was present alone or in combination with one other
specification, even when substantial mitigation existed.’ ” Osie, 140 Ohio St.3d
131, 2014-Ohio-2966, 16 N.E.3d 588, at ¶ 271, quoting State v. Turner, 105 Ohio
St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 101.
                                   CONCLUSION
       {¶ 166} For the foregoing reasons, we affirm the judgments of conviction
and the death sentences.
                                                                Judgment affirmed.
       O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.




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        PFEIFER, J., concurs in part and dissents in part with an opinion.
        O’NEILL, J., concurs in part and dissents in part with an opinion that
PFEIFER, J., joins in part.
                                 _________________
        PFEIFER, J., concurring in part and dissenting in part.
        {¶ 167} I concur in the affirmance of Denny Obermiller’s convictions.
There is ample evidence to conclude beyond a reasonable doubt that he committed
the heinous crimes of which he was found guilty. I dissent from the affirmance of
the imposition of the death penalty based on the unacceptable absence of mitigation
evidence, and I agree with Justice O’Neill’s separate opinion to the extent that it
details the inadequacy of the mitigation evidence.
                                 _________________
        O’NEILL, J., concurring in part and dissenting in part.
        {¶ 168} I must dissent from the affirmance of the sentences of death
imposed in this case. I concur with the majority in affirming the convictions.
        {¶ 169} As a justice of the Supreme Court of Ohio, I am being asked to
stand with the other members of this court at the head of the line of 11 million
Ohioans and say “off with his head.” This court’s review of a case in which a
sentence of death has been imposed is supposed to be the last step in a logical
statutory process in which juries, then trial courts, and then the justices of this court
independently weigh the truly bad facts of the crime against the evidence that
excuses or explains the crime. And there are certain external limits on that process.
For example, we do not execute mentally impaired people. We do not. That is a
decision that we as a society, with guidance from the United States Supreme Court,
have made. And to parallel a case involving a clear mental impairment with the
case before us, that decision is not implemented through a license of forgiveness
that we must ask for the defendant’s permission to exercise. That decision is a right
owned by 11 million Ohioans.




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       {¶ 170} My belief that capital punishment is barbaric, backward,
ineffective, outrageously expensive, and unconstitutional is no surprise to anyone.
See State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900,
¶ 2 (O’Neill, J. dissenting). Capital punishment serves no purpose other than
vengeance. However, the law of Ohio is such that the people are willing to execute
some persons who commit murder, but not all of them.
       {¶ 171} In order to properly do our jobs, the members of this court must
consider the mitigating factors in each capital case.      This consideration is a
minimum statutory requirement borne by this court. Let me be clear here. The
statutory right to a mitigation hearing is unconditionally a right belonging to every
defendant charged with a capital offense. If, as here, the defendant wants to do the
equivalent of sitting in the courtroom with duct tape over his mouth, that is his
choice and his right. Surely, we cannot force the defendant’s cooperation.
       {¶ 172} However, the absolute, unconditional right to a mitigation hearing
also belongs to the 11 million Ohioans who need to be convinced, beyond a
reasonable doubt, that they have made the right decision in terminating the life of a
fellow citizen. It is the people’s right to due process.
       {¶ 173} When a defendant pleads guilty to a capital offense and waives a
mitigation hearing, the trial court has an affirmative duty to develop the evidence
in any manner available to aid the process of weighing the aggravating
circumstances against the mitigating factors of the case. That is the law of Ohio.
This duty flows as a matter of basic fairness and due process from the three-judge
panel’s statutory duty to “examine the witnesses, determine whether the accused is
guilty of aggravated murder or any other offense, and pronounce sentence
accordingly” whenever a capital defendant pleads guilty to aggravated murder.
R.C. 2945.06. It would be inherently illogical and fundamentally unfair to have the
state and the three-judge panel call witnesses to prove guilt and aggravating
circumstances, only to leave the panel insufficiently informed of crucial details and




                                          50
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unable to adequately comply with the statutorily mandated duty to weigh the
mitigating factors involved. When potential mitigating factors are discovered as a
mere afterthought from evidence offered for the purpose of proving guilt and
aggravating circumstances, it can be little surprise that the balance weighs in favor
of capital punishment. This case is a perfect example. Twenty-three witnesses
testified, and the three-judge panel was left with the clear impression that a strong
case in mitigation could have been presented. When that case was consciously not
presented, the panel could come to only one conclusion: the mitigating evidence
that was not presented did not outweigh the aggravating circumstances that were
proven to be present.
       {¶ 174} Much like the three-judge panel, this court has a need—and a
right—to hear the truth, the whole truth, and nothing but the truth. At the risk of
being overly salacious, the step-grandfather who was a victim here, it is alleged, on
more than one occasion locked this defendant as an early adolescent in an attic and
deprived him of food. By age 15, the defendant was a violent child who continued
his felonious behavior while in the custody of the Ohio Department of Youth
Services. He then spent the remainder of his teen years and his early adulthood up
to age 27 behind bars in prison. And now the step-grandfather is dead, and his wife
has been beaten, raped, and killed. This all happened when the defendant was age
28, roughly one year after his release from prison. It is hard to imagine a more
horrific scenario.
       {¶ 175} I absolutely reject the majority’s willingness to authorize the
execution of this defendant based on inadequate evidence of what happened here.
The record here cries out for bringing in the social workers, the neighbors, the
teachers, the probation officers, and any other persons who could help the court
understand what happened in this case. The defendant’s permission to do that is
not necessary. If the trial court fails to perform its duty, we at the supreme court
simply cannot perform our duty. How can we, the 11 million people of Ohio, be




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convinced, beyond a reasonable doubt, that justice has been done if we do not know
the whole story before we decide to end someone’s life?
       {¶ 176} In the present case, we know that the defendant was locked in an
attic as a young boy and deprived of food, and we can rightly speculate that he
endured other treatment of that type. We do not have many details as to the
circumstances or extent of this abuse, because that information is not included in
the record. We do know that his ostensible guardians, the two people who should
have been responsible for seeing to it that a child was not locked in an attic without
food and water, are dead. Before we as a supreme court decide on behalf of 11
million Ohioans whether the defendant should be executed, wouldn’t it be
important to know the extent of that abuse and the effect that the abuse had on the
defendant when he decided to take the life of his alleged abuser, his step-
grandfather, and the person who allegedly did not prevent the abuse, his
grandmother? Judge John Sutula from the three-judge panel stated on the record:


       Mr. McDonnell, does your client understand that throughout the
       course of the first phase of the trial, * * * evidence [and] testimony
       [has shown] that there are substantial elements here that a * * *
       substantial mitigation defense could be presented?          Mitigating
       factors could be presented, you know, starting with the murder of
       his mother, the disruptive childhood he had, the passing of his
       custody from one situation to another, the incarceration of his father,
       the incarceration of his stepmother, the situation where it was
       testified to by * * * his stepmother that there was potentially a
       situation where his grandfather kept him in an attic and withheld
       food and water for a period of time in his early adolescence, * * *
       that he was incarcerated by youth services when he was about 15
       years old, that he, while there, * * * also committed another




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       felonious assault, that he was incarcerated continuously from 15
       through 27. And these are, you know, kernels of * * * mitigation
       factors that are substantial and that have been used probably in
       similar cases effectively.


       {¶ 177} Whether the defendant chooses to participate in his defense or not
is his right. However, this court has an independent duty to weigh mitigating
factors regardless of the defendant’s participation in that process. As supreme court
justices, we are being asked to sign the death warrant for this defendant. This is
impossible to do without having all of the pertinent facts at our disposal. Due
process demands no less.
       {¶ 178} I respectfully dissent from the affirmance of the death sentences.
       PFEIFER, J., concurs in the foregoing opinion to the extent that it details the
inadequacy of the mitigation evidence.
                               _________________
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S.
Kasay, Assistant Prosecuting Attorney, as special prosecuting attorneys, for
appellee.
       Timothy Young, Ohio Public Defender, Kathryn L. Sandford, Supervisor,
Death Penalty Division, and Randall L. Porter and Shawn P. Welch, Assistant
Public Defenders, for appellant.
                              ___________________




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