[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Osie, Slip Opinion No. 2014-Ohio-2966.]




                                        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. 2014-Ohio-2966
              THE STATE OF OHIO, APPELLEE, v. OSIE, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
      it may be cited as State v. Osie, Slip Opinion No. 2014-Ohio-2966.]
Criminal law—Aggravated murder—Death penalty affirmed.
     (No. 2010-1105—Submitted January 8, 2014—Decided July 10, 2014.)
            APPEAL from the Court of Common Pleas of Butler County,
                                No. CR 2009-02-0302.
                               ____________________
        KENNEDY, J.
        {¶ 1} On February 14, 2009, appellant, Gregory C. Osie, stabbed David
Williams to death in Williams’s house in Liberty Township, Butler County. Osie
was tried by a three-judge panel, which found him guilty of aggravated murder
with three death specifications and sentenced him to death.
        {¶ 2} David Williams was a partner in a business venture called United
Contractors Unlimited (“UCU”), which began in August 2008. Williams had
provided $10,000 in seed money to get the business started and also served as a
business mentor, providing his partners with advice on running a business. The
other partners performed various jobs in the business.
                            SUPREME COURT OF OHIO




       {¶ 3} Williams’s partners in UCU included Robin Patterson and Nicholas
Wiskur.      Patterson was the office manager.   Gregory Osie was Patterson’s
boyfriend.    Osie was not a partner in UCU but had been employed on one
occasion to do a job for UCU. He was also hired occasionally to do “odds and
ends type jobs” for David Williams.
       {¶ 4} By February 2009, according to Nicholas Wiskur, UCU had nearly
reached “the point of being defunct.” Wiskur testified that the partners held a
financial meeting approximately every four weeks to go over profit-and-loss
statements. At these meetings, the partners would “go over checks”; therefore,
Wiskur knew that questions had been raised about certain checks.
       {¶ 5} Wiskur decided to investigate one specific check: a check for $375,
made out to and endorsed by Greg Osie, ostensibly signed by Robin Patterson,
and dated December 26, 2008. This check had been cashed at a Marathon gas
station. Because the account on which it was drawn had been closed, the check
bounced. Based on his familiarity with Patterson’s signature, Wiskur concluded
that the check was “obviously forged.” He called the Marathon station and
discussed the matter with the owner. Wiskur subsequently discussed the matter
with Williams.
                       The Events of February 13-14, 2009
       {¶ 6} On February 13, 2009, between approximately 8:30 and 9:00 a.m.,
Wiskur went to Williams’s house. Williams was not home, so Wiskur phoned
him, then decided to await Williams’s return.
       {¶ 7} Before Williams arrived, Osie phoned Wiskur. Osie claimed that he
didn’t know anything about the forged check. Wiskur informed Osie that the
owner of the gas station had “unequivocally” identified Osie as the person who
had cashed the check and that Osie’s act had been captured on videotape. Osie
continued to deny that he had cashed the check. Wiskur told him: “It’s all going




                                        2
                                January Term, 2014




to come out, * * * if you did it or not. I guess * * * we’ll find out, and at that
time, we’ll do the necessary actions * * *.”
          {¶ 8} Eventually, Williams came home, and he and Wiskur discussed
other matters. However, before Wiskur left, Osie phoned Williams. Wiskur was
able to hear and recognize Osie’s voice on the other end of the line.
          {¶ 9} Wiskur testified that the conversation was “[a]gitated and
aggressive,” with “some name calling on both sides” and references to the theft of
money and property. During this conversation, according to Wiskur, Williams
said to Osie: “Well, you know, I just want to make this right. Robin won’t return
any of my phone calls. * * * Well, I’m going to go to the police. I’m going to file
charges. This needs to be taken care of.” At the end of the conversation,
according to Wiskur, Williams “slam[med] the phone” down and said, “F you.”
          {¶ 10} On the night of February 13-14, Tim Purvis, an acquaintance of
Osie and Robin Patterson, was performing with a band at a local bar. Around
1:00 a.m., February 14, Purvis saw Patterson at the bar. Purvis finished playing at
2:00 a.m.; half an hour later, he left with Patterson. They reached Purvis’s
apartment around 2:45 a.m. Patterson stayed until 9:00 a.m. She and Purvis sat
and talked and had “a couple of beers.”
          {¶ 11} While Patterson was at Purvis’s apartment, her phone rang between
10 and 15 times, beginning sometime between 4:00 and 5:00 a.m. Around 5:00
a.m., Purvis got a phone call from Osie, who wanted to talk to Patterson. Purvis
handed Patterson his phone and went to the bathroom. He was able to hear most
of the conversation, however. He described it as “a lot of arguing back and
forth.”
          {¶ 12} Around 5:30 or 6:00 a.m., Patterson received a text message that
upset her. Purvis described her reaction: “She was very upset, pacing back and
forth, crying. Just really distraught.” Purvis asked why she was upset, and she
said: “Greg killed Dave.”




                                          3
                            SUPREME COURT OF OHIO




       {¶ 13} Records of the Cincinnati Bell Telephone Company introduced at
trial show that on February 14, 2009, between 3:07 a.m. and 8:45 a.m., 15 text
messages were sent from phone number 513-746-1393 to phone number 513-746-
8127. Cincinnati Bell records listed Osie as both subscriber and registered user
for phone number 513-746-1393. Osie was also the subscriber for phone number
513-746-8127; the registered user of that phone was listed as “Robin.”
       {¶ 14} At 3:07 a.m., a text from Osie’s phone to Robin’s stated: “Baby
doll your dirt is ready to be over.” At 4:24 a.m., there was another text that said
simply: “Job finished.” Other texts sent from Osie’s phone to Robin’s that
morning included “Need help” at 4:35 a.m., “Baby talk 2 me” at 5:09 a.m., “Help
please” at 5:25 a.m., “I need you i am afraid” at 7:30 a.m., and “Baby im worried
please call” at 8:29 a.m.
       {¶ 15} Business records of PNC Bank and United Dairy Farmers (“UDF”)
show that on February 14, 2009, at 4:28 a.m., someone used David Williams’s
Visa debit card to buy $27.01 worth of gasoline at the UDF in West Chester.
Business records of PNC Bank and Meijer show that on February 14, 2009, at
6:24 a.m., someone tried to use the same card to make a transaction in the amount
of $547.66 at the Meijer store in West Chester, but the transaction was declined
for insufficient funds.
       {¶ 16} At approximately 9:00 or 9:15 a.m., February 14, Donald E. Heis
Sr., a mechanic at an auto body shop in West Chester, spotted a cell phone lying
in pieces in the driveway of the shop as he was driving out on a wrecker call.
About 15 minutes later, on his way back, Heis stopped and picked up the phone.
Heis reattached the loose pieces of the phone and found that it worked. By
examining the phone’s recent-call log, he obtained the phone number of
Williams’s daughter, Heather Williams, and called that number to see whether she
knew who owned the phone. Heis explained where he had found the phone and




                                        4
                                    January Term, 2014




how he had obtained Heather’s number.                 Heather said, “Oh, it’s my dad’s
[phone].” Heis told her that she could come by the body shop and pick it up.
        {¶ 17} Heather then called two of her father’s friends and asked them to
let him know where his phone was. She sent one of them to Williams’s house.
There he found Williams’s body. Police were summoned, and the crime scene
was processed.
                                      The Crime Scene
        {¶ 18} Williams was found lying on the living-room floor, bruised and
blood-soaked. The body lay near a coffee table, where police found a wallet lying
open, with business cards and various papers scattered around it. On a table by a
recliner was a spillproof cup containing whiskey and a drinking straw.1
Williams’s television was missing from the entertainment center in the living
room.
        {¶ 19} In the kitchen, police found a set of knives in a wooden block on
the counter. One knife from the set appeared to be missing, but was found in a
kitchen drawer.
        {¶ 20} Williams’s bedroom contained a safe, which sat atop a dresser.
The safe was open, and papers and other items lay scattered on the floor in front
of the dresser.
                                        The Autopsy
        {¶ 21} Dr. James Swinehart, a forensic pathologist employed by Butler
County, performed an autopsy on Williams’s body on February 14.                              Dr.
Swinehart noted that Williams had suffered “five distinct stab wounds clustered
basically around the left nipple area.” Several of these wounds had perforated
Williams’s left lung, collapsing it. Dr. Swinehart measured 700 cc of blood in the

1
 Williams’s daughter and physician testified that Williams had a severe genetic disorder known as
“essential tremor” or “familial tremor,” which caused his whole body to shake so badly that he
could not drink without a straw, use silverware, or negotiate steps.




                                               5
                              SUPREME COURT OF OHIO




left chest cavity. Williams had also sustained five stab wounds to the abdomen,
one of which damaged his liver and gall bladder.
        {¶ 22} Finally, Williams’s throat had been slashed.              Dr. Swinehart
identified “two large incised wounds of the anterior neck.” The more serious of
these wounds was 5 and 3/4 inches long; it penetrated Williams’s larynx with a
“through and through” wound and exposed his windpipe.
        {¶ 23} Dr. Swinehart concluded that Williams bled to death. Based on the
temperature of Williams’s body at 8:00 p.m., February 14, Dr. Swinehart was able
to estimate that Williams had died in the early morning of February 14, sometime
between midnight and 4:00 or 5:00 a.m. Given the large amount of sudden blood
loss, Dr. Swinehart opined that Williams would have died within 15 minutes.
        {¶ 24} Finally, Dr. Swinehart had a comprehensive toxicology screen
performed, which revealed that Williams had a postmortem blood-alcohol level of
.160 percent.2
                           Osie’s Arrest and Interrogation
        {¶ 25} Investigators from the Butler County Sheriff’s Office determined
that Osie was a suspect. Four detectives went to his address in West Chester to
talk to him. They knocked on the door of his apartment, but no one answered. As
the detectives were leaving the apartment complex, they noticed a red truck in the
parking lot with its headlights on. Osie drove a red truck. The truck “peeled out”
in reverse. The detectives pursued the truck in their vehicles and were able to
block its departure. When the driver of the red truck identified himself as Osie,
the detectives handcuffed him and drove him to the stationhouse.
        {¶ 26} At the station, the detectives placed Osie in an interview room,
where they administered Miranda warnings and proceeded to interrogate him.


2
 Alcohol tends to calm the shaking experienced by patients with essential tremors. Heather
Williams testified that her father drank alcohol to help him function better.




                                            6
                               January Term, 2014




       {¶ 27} Osie initially told detectives that Williams had attacked him.
According to Osie, Williams accused Patterson of stealing from him and said that
“he was going to go press charges against her.” Osie claimed that after he told
Williams, “[Y]ou got to have proof before you do something like that,” Williams
became angry. Osie said that he started to leave, whereupon Williams got out of
his chair, picked up a knife and came at Osie.
       {¶ 28} Osie claimed that he pushed Williams back into his chair, but
Williams got up and attacked him again. Osie then grabbed Williams’s hand,
“kind of turned it into him,” and stabbed Williams with the knife while Williams
was holding it. In Osie’s account, Williams pulled the knife out of his body and
attacked Osie yet again. The knife “went back in him again, the way that I had
his hand.” Then, Osie claimed, he panicked and went home. Osie claimed that
when he left, he did not even know that Williams was dead.
       {¶ 29} The detectives asked Osie why he had sent Patterson a text to the
effect that she didn’t “have to worry about Dave no more” if he was unaware that
Williams was dead. Osie explained that this was intended “[t]o let her know that I
kind of beat Dave up and stabbed him.”
       {¶ 30} The detectives continued to confront Osie with inconsistencies in
his story and inconsistencies between his story and the evidence. As they did so,
Osie’s story changed. After admitting that he “kind of beat Dave up,” Osie
denied beating Williams, admitting only that he had “punched him one time.”
Osie then amended that to “[o]ne or two times maybe.” Then he claimed that he
had not punched Williams with his fist, but had hit him with an open hand.
Finally, he admitted punching Williams in the face.
       {¶ 31} Osie initially claimed that he stabbed Williams only twice, and he
denied cutting Williams’s throat. When detectives pointed out that there appeared
to be four to six stab wounds, Osie said he didn’t know whether anyone else was
in the house when he left, implying that someone else might have inflicted the




                                         7
                            SUPREME COURT OF OHIO




wounds after Osie left. Osie later suggested that Williams might have inflicted
some of the wounds on himself. Still later, Osie admitted stabbing Williams
“probably four to five times,” but denied cutting his throat. Finally, however,
Osie admitted that he cut Williams’s throat after stabbing him.
       {¶ 32} Osie denied taking Williams’s cell phone or television, and he
denied taking the knife from the house, claiming that he had left it in Williams’s
body. He also denied removing anything from Williams’s safe.
       {¶ 33} Eventually, Osie admitted that he took keys from Williams’s
jacket, then went into the bedroom, opened the safe, and scattered its contents.
He admitted that he took the knife with him when he left. He also admitted taking
Williams’s cell phone, which he threw from his truck window on his way home,
and Williams’s TV, which he took in order to make the crime look like a robbery.
He claimed that he drove home, changed clothes, then drove to Cincinnati. There
he discarded the TV in a dumpster, then threw the knife into the Ohio River.
       {¶ 34} After this interview, Detective Melissa Gearhart learned about
Williams’s tremor disorder. This called into question Osie’s claim that Williams
had assaulted him with a knife, so Gearhart interviewed Osie again.
       {¶ 35} In this second interview, Osie’s story was that he and Williams got
into a scuffle, during which Osie punched Williams a few times. Then Osie went
into the kitchen, Williams followed him, and they struggled again. During the
second struggle, Osie grabbed a knife. Williams backed away from Osie into the
living room. There, Osie stabbed Williams in the chest. Williams fell to the
floor, and Osie stabbed him a few more times. Then, motivated by anger, he cut
Williams’s throat, but only once.
                        Osie’s Statements to His Cellmate
       {¶ 36} Donald D. Simpson Jr., an acquaintance of Osie’s, was Osie’s
cellmate in the Butler County Jail from February 15, 2009, until Simpson’s
release in April 2009. A “couple of weeks” after moving in, Osie began to




                                         8
                                January Term, 2014




discuss his case with Simpson. During that time, according to Simpson, the two
talked about Osie’s case “pretty much every day” until Simpson’s release,
because “that’s all [Osie] pretty much had to do.”
       {¶ 37} Osie told Simpson that he had been charged with the murder of
David Williams, and “it all stimulated [sic] over Greg’s girlfriend, Robin
Patterson.” Simpson testified: “Greg had told me that David Williams was
pressing charges on Robin Patterson for stealing around $18,000.” Osie told
Simpson that Patterson had used payroll checks to steal the money and that she
asked him to persuade Williams not to press charges.
       {¶ 38} According to Simpson, Osie also gave him an account of
Williams’s murder. Osie told Simpson that before he went to Williams’s house,
he and Patterson had spent all day getting high on cocaine. Osie told Simpson
that he arrived at Williams’s house around 1:30 or 2:00 a.m. Osie began by trying
to talk Williams out of pressing charges. But during the conversation, Williams
indicated his intention to press charges against Osie for the check cashed at the
Marathon station. At that point, Osie told Simpson,


       the conversation had got heated and * * * he had punched Dave,
       and then it just happened that, I mean before he knew it, he had
       got the knife and stabbed him. He had stabbed him like four or
       five times in the chest, and that then when he was laying there,
       that he freaked out, and so he had rushed down and took the knife
       and sliced his throat.


       {¶ 39} Osie told Simpson that he “had tried to make it look like a break-
in.” Osie told Simpson that he took a flat-screen television and a credit card and
also removed checks from Williams’s safe.            Osie said that he had tried to
purchase gas with the credit card. He also had gone to Meijer and tried to buy a




                                         9
                                SUPREME COURT OF OHIO




diamond ring for Patterson, but the card was declined. Simpson testified that Osie
never told him that before arriving at Williams’s house, he had intended to harm
Williams or steal anything.
        {¶ 40} According to Simpson, Osie had been calling and writing
Patterson, but Patterson refused to take Osie’s calls or answer his letters. Shortly
before Simpson’s scheduled release, Osie asked him what his plans were;
Simpson said that he was going back to Kentucky. Osie asked him to “stick
around for a couple of days and do him a favor.” Osie wanted Simpson to “find
the murder weapon and place it in Mrs. [Robin] Patterson’s car.” Osie described
the weapon as a 12-inch hunting knife. He told Simpson that he had thrown it
from the window of his vehicle and gave Simpson directions for finding it.3
                             Indictment, Trial, and Verdict
        {¶ 41} Osie was indicted on two counts of aggravated murder: one
charging that he killed Williams with prior calculation and design, R.C.
2903.01(A), and one charging that he killed Williams while committing
aggravated burglary, R.C. 2903.01(B). Each aggravated-murder count carried
three death specifications. Specifications 1 and 2 to each count were felony-
murder specifications, R.C. 2929.04(A)(7), predicated respectively on aggravated
burglary and aggravated robbery. Specification 3 to each aggravated-murder
count was a witness-murder specification, R.C. 2929.04(A)(8). Counts 3, 4, and 5
charged aggravated burglary, aggravated robbery, and evidence tampering,
respectively.
        {¶ 42} Osie waived a jury and was tried by a three-judge panel. The panel
found Osie guilty of Count 2 (felony-murder) and of all three death specifications
attached to that count. However, the panel acquitted him on Count 1 (aggravated



3
  Simpson was not asked whether he actually looked for the knife. No such knife was introduced
at trial.




                                             10
                               January Term, 2014




murder/prior calculation and design) and found him guilty of the lesser-included
offense of murder. Finally, the panel found him guilty of Counts 3, 4, and 5.
       {¶ 43} After the penalty phase, the panel sentenced Osie to death on Count
2. The case is now before this court on appeal as of right.
                                 I. Pretrial Issues
                            A. Validity of Jury Waiver
       {¶ 44} In his tenth proposition of law, Osie contends that his jury waiver
was not voluntary, knowing, and intelligent. He claims that the waiver colloquy
was inadequate and that the trial court should have inquired into his mental health
before accepting the waiver.
       {¶ 45} A jury waiver must be voluntary, knowing, and intelligent. State v.
Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250 (1978). Waiver may not be
presumed from a silent record. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-
7006, 823 N.E.2d 836, ¶ 52. However, if the record shows a jury waiver, the
verdict will not be set aside except on a plain showing that the waiver was not
freely and intelligently made. Id.; Adams v. United States ex rel. McCann, 317
U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Moreover, a written waiver is
presumptively voluntary, knowing, and intelligent. Foust at ¶ 52; United States v.
Sammons, 918 F.2d 592, 597 (6th Cir.1990). See also State v. Bays, 87 Ohio
St.3d 15, 19, 716 N.E.2d 1126 (1999).
       {¶ 46} At a hearing on March 31, 2010, defense counsel stated that they
had met with Osie ten days before and discussed his option of going forward with
a jury trial or being tried to a three-judge panel. One of Osie’s attorneys met with
him on March 30 and discussed the same topic with him for 15 to 20 minutes. On
March 31, defense counsel filed a written jury waiver signed by Osie.
       {¶ 47} At the March 31 hearing, the trial court conducted a colloquy with
Osie to ensure that his waiver was knowing, voluntary, and intelligent.          In
response to the judge’s questions, Osie acknowledged that he understood that a




                                         11
                             SUPREME COURT OF OHIO




jury consisted of 12 people, that he would play an active role in picking the jurors,
that the jury would weigh the evidence and decide the credibility of the witnesses,
and that he could not be found guilty unless the jury unanimously agreed that the
state had proven the charges beyond a reasonable doubt. Osie acknowledged that
he understood that the jury would also decide whether he would receive a death
sentence, that this decision would be based on whether the state proved beyond a
reasonable doubt that the aggravation outweighed the mitigation, and that this
decision must also be unanimous. Osie acknowledged understanding that by
giving up a jury, he would be tried by a three-judge panel, whose verdicts would
also have to be unanimous.
       {¶ 48} Osie affirmed that no one had threatened him, coerced him, or
promised him anything in exchange for his jury waiver.            He acknowledged
understanding that his right to a jury trial was protected by the state and federal
Constitutions and by statute. He acknowledged that he had discussed “all of this”
with his counsel, they had answered all his questions, and he had nothing more to
ask them.
       {¶ 49} After the colloquy, Osie signed a second jury waiver in open court.
Before signing, Osie acknowledged that he had had an opportunity to go over it.
The written waiver contains the following acknowledgement: “I fully understand
that under the laws of this State, I have a Constitutional right to a trial by jury. I
wish to give up my right to a trial by jury in this case.” The waiver further states:


               I fully understand that I am not only waiving the right to
       have my guilt or innocence determined by a jury, but also waiving
       my right to have a jury decide the sentence to be imposed upon me
       in the event of a guilty verdict. I fully understand that in that
       event, upon completion of a sentencing hearing, the same three-
       judge panel, who determined my guilt as to the crime(s) charged




                                         12
                                 January Term, 2014




        and the specification(s) thereto, would determine the sentence to be
        imposed upon me.


        {¶ 50} The trial judge found that Osie had knowingly, voluntarily, and
intelligently waived his jury-trial right.
                                    Voluntariness
        {¶ 51} Nothing in the record suggests that the jury waiver was
involuntary. When the trial court accepted Osie’s written waiver, Osie affirmed
that his decision was voluntary and that he had discussed his decision with his
counsel. The advice of counsel is a factor supporting a finding of voluntariness.
Bays, 87 Ohio St.3d at 19, 710 N.E.2d 1126. We conclude that the record
supports the trial court’s finding that Osie’s jury waiver was voluntary.
                          Knowing and Intelligent Waiver
        {¶ 52} Because “[a] waiver is the intentional relinquishment of a known
right or privilege * * *, a defendant must have some knowledge of the nature of
the jury trial right to make a valid waiver.” Id. at 19-20. However, “[t]here is no
requirement for a trial court to interrogate a defendant in order to determine
whether he or she is fully apprised of the right to a jury trial.” State v. Jells, 53
Ohio St.3d 22, 559 N.E.2d 464 (1990), paragraph one of the syllabus. “The
Criminal Rules and the Revised Code are satisfied by a written waiver, signed by
the defendant, filed with the court, and made in open court, after arraignment and
opportunity to consult with counsel.” Id. at 26.
        {¶ 53} Osie contends that the trial court failed to inquire into his
“background, IQ, or level of education” to ensure that he understood the legal
proceedings. However, he cites no authority to show that such an inquiry is a
prerequisite for a valid waiver. “[A] defendant need not have a complete or
technical understanding of the jury-trial right in order to waive it.” State v.
Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 44, citing




                                             13
                                   SUPREME COURT OF OHIO




United States v. Martin, 704 F.2d 267, 273 (6th Cir.1983). “A defendant is
sufficiently informed to make an intelligent waiver if he was aware that a jury is
composed of 12 members of the community, he may participate in the selection of
the jurors, the verdict of the jury must be unanimous, and * * * a judge alone will
decide guilt or innocence should he waive his jury trial right.” Martin at 273; see
also Fitzpatrick, id. The trial court advised Osie of all these things, and Osie
acknowledged that he understood them.4 In our view, the record supports the trial
court’s finding that Osie’s waiver was knowing and intelligent.
         {¶ 54} Osie contends that the trial court should have inquired into his
mental health before accepting his waiver, based on the court’s knowledge of
certain letters that the state had seized from Osie’s cell. Osie contends that these
letters “would have led anyone to have concerns about Osie’s mental health,”
because they showed that his “thought process was strange and erratic.”
         {¶ 55} The letters in question are directed to Robin Patterson. In tones of
suspicion and anger, they make numerous complaints about Patterson’s failure to
contact Osie; accusations that Patterson was a heavy drug user and sexually
unfaithful; accusations that Patterson had Williams killed and had framed Osie for
the murder; and threats against Patterson, both veiled and explicit. They also
contain declarations of love, explicit reflections on his sexual relationship with
Patterson, and Osie’s apologies for having assaulted Patterson in the past.
         {¶ 56} Osie’s characterization of these letters as evincing mental illness is
conclusory and speculative. Osie does not explain how the letters would tend to
raise questions about his mental health. Moreover, as the state points out, there is
nothing in the record to suggest that Osie had any mental-health issues. Defense
counsel never raised Osie’s competence as an issue. “If counsel had some reason


4
  “The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it
is constitutionally required.” (Emphasis sic.) United States v. Sammons, 918 F.2d 592, 597 (6th
Cir.1990).




                                                  14
                                January Term, 2014




to question defendant’s competency, they surely would have done so.” State v.
Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 39 (holding
that trial court did not err by failing to make sua sponte finding that defendant was
incompetent to stand trial).
       {¶ 57} We overrule Osie’s tenth proposition of law.
                           B. Judge’s Failure to Recuse
       {¶ 58} In his 17th proposition of law, Osie contends that Judge Noah E.
Powers II, who presided over the trial, should have recused himself because his
pecuniary relationship with the defense mitigation specialist, who was the judge’s
former law partner, created an appearance of impropriety.
       {¶ 59} Some months before trial, the defense requested that attorney
Christopher J. Pagan be appointed as the defense mitigation specialist. Judge
Powers informed the parties on the record that he had an ongoing financial
relationship with Pagan, because they had been law partners, and Pagan “still
owes me [the judge] money.” Judge Powers was initially reluctant to appoint
Pagan for this reason. However, recognizing that defense counsel had valid
reasons for desiring the appointment, Judge Powers recused himself from ruling
on the defense motion to appoint Pagan.        The matter was referred to Judge
Michael J. Sage, the administrative judge of the common pleas court.
       {¶ 60} Judge Sage held a hearing on the motion to appoint Pagan. At the
hearing, defense counsel explained that Judge Powers had recused himself from
the motion because “there are still some cases that Mr. Pagan has in his office that
Judge Powers was working on at the time, and he is still owed money from those
cases if and when they settle or if judgment is obtained.”
       {¶ 61} The prosecution expressed concerns because, if Osie waived his
right to a jury trial and if Pagan was called to testify in the penalty phase, Judge
Powers might be compelled to recuse himself. Defense counsel responded that




                                         15
                              SUPREME COURT OF OHIO




the defense did not anticipate waiving a jury and in any event did not plan to call
Pagan as a witness. Judge Sage granted the motion to appoint Pagan.
          {¶ 62} Osie never asked that Judge Powers recuse himself, nor did he raise
the issue of Judge Powers’s alleged bias before the chief justice pursuant to R.C.
2701.03, which establishes procedures for filing an affidavit of disqualification
against a common pleas judge.         Ohio Constitution, Article IV, Section 5(C)
provides: “The chief justice of the supreme court or any judge of that court
designated by him shall pass upon the disqualification of any judge of the courts
of appeals or courts of common pleas or division thereof.” This provision vests
exclusive authority to pass on disqualification matters in the chief justice or her
designee. See Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775
(1978).
          {¶ 63} In Beer, the court of appeals voided a trial court’s judgment on the
ground that the trial judge in that case should have recused himself. We reversed,
holding: “Since only the Chief Justice or his designee may hear disqualification
matters, the Court of Appeals was without authority to pass upon disqualification
or to void the judgment of the trial court upon that basis.” (Footnote omitted.) Id.
at 441.
          {¶ 64} Similarly, in State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d
1130 (2001), we held that an appellant who had failed to file an affidavit of
disqualification could not complain on appeal that the judges on the court below
were biased. Moore was an appeal to this court from the judgment of a court of
appeals that denied an application to reopen an appeal under App.R. 26(B). The
appellant argued in this court that the judges of the court of appeals should have
recused themselves from ruling on his application. Citing Beer and Article IV,
Section 5(C), we held: “Under R.C. 2501.13, when a party believes that a judge of
the court of appeals is biased, the proper avenue for redress is filing an affidavit of




                                          16
                                    January Term, 2014




disqualification with this court. * * * Moore did not file such an affidavit, and
therefore is foreclosed from bringing such a complaint.” Id. at 650.
        {¶ 65} Osie should have brought his bias claim before the chief justice via
affidavit for disqualification under R.C. 2701.03. Having failed to do so, he is
likewise “foreclosed from bringing such a complaint,” id., on appeal of his
conviction.5
        {¶ 66} In addition to being waived, Osie’s claim lacks merit. The alleged
conflict is based on Osie’s belief that Judge Powers “ha[d] a pecuniary interest in
not damaging his former law partner’s reputation.” Osie appears to be arguing
that if Pagan was appointed and his performance damaged his reputation, the
result might be a reduction in the income of his law firm that could endanger his
ability to meet his financial obligations to Judge Powers. Because Judge Powers
might suffer “financial loss if Pagan’s reputation was harmed,” he was “invested
in Pagan’s long term success.”
        {¶ 67} Osie’s argument is speculative. Osie does not explain how Pagan’s
reputation stood to be harmed by participating in this case. Nor does he explain
how an interest in protecting Pagan’s reputation would give rise to a bias against
the defense, given that Pagan was affiliated with the defense.
        {¶ 68} Osie cites Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71
L.Ed. 749 (1927), but Tumey is in no way apposite here. Tumey holds that a
criminal defendant is denied due process when subjected to trial before a judge
with “a direct, personal, substantial pecuniary interest in reaching a conclusion
against him.” In Tumey, the mayor presiding over the village mayor’s court stood
5
  In State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, we recently overturned
an aggravated-murder conviction on appeal, partly on the ground of judicial bias against defense
counsel. Dean is distinguishable, however. In Dean, the bias claim was “inextricably entwined”
with the defendant’s claim that the trial court had improperly denied his request to represent
himself. Dean at ¶ 48. Thus, we could not fully consider the latter claim without considering the
bias claim. See id. at ¶ 66-75. Here, Osie’s allegation of bias is not “entwined” with his other
claims.




                                               17
                              SUPREME COURT OF OHIO




to receive $12 in “costs” if—and only if—the defendant was convicted. But in
this case, Judge Powers’s relationship with Pagan gave him no “direct, personal,
substantial pecuniary interest,” Tumey, either in convicting Osie or in subjecting
him to the death penalty.
        {¶ 69} Finally, Osie argues that “[a]greeing not to call Pagan before a
mitigation investigation had been undertaken violated Osie’s right to effective
assistance of counsel.” However, Osie fails to outline any reasoning by which we
could reach such a conclusion.
        {¶ 70} To demonstrate ineffective assistance, Osie would have to show
both that trial counsel’s failure to call Pagan as a witness was deficient
performance and that it prejudiced him. See generally Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He does not attempt to
make either showing here. Defense counsel may have had valid strategic reasons
for not wanting Judge Powers to recuse himself. Moreover, the defense could
present whatever witnesses and evidence Pagan’s investigation might uncover
without having to call Pagan to testify. Osie identifies nothing in the record to
show why the defense needed Pagan to testify or how he might have testified.
Consequently, Osie fails to demonstrate either deficient performance or prejudice.
        {¶ 71} Osie’s 17th proposition of law is overruled.
                         C. Selection of Three-Judge Panel
        {¶ 72} In his ninth proposition of law, Osie contends that the three-judge
panel was selected by the judge presiding over the case, Judge Powers, rather than
by the presiding judge of the common pleas court, Judge Sage, who should have
chosen the panel under R.C. 2945.06. Accordingly, he claims, the panel lacked
jurisdiction over his case, and he is entitled to a new trial.
        {¶ 73} On April 17, 2009, Judge Powers presided over a hearing at which
two other judges for a proposed three-judge panel were selected, in case the
defendant elected to waive a jury. Each of the other six judges of the Butler




                                           18
                                   January Term, 2014




County Common Pleas Court was assigned a number based on seniority. Six
balls, numbered 1 through 6, were placed in a bottle. A member of the court’s
staff pulled the balls randomly from the bottle.
         {¶ 74} Before this was done, Judge Powers stated: “[A]s each number is
drawn sequentially, those will be the judges that are assigned to the case should
the defense decide to waive a jury in this matter and proceed to a three-judge
panel. Does anybody have an objection to that procedure?” Defense counsel
said: “No, Your Honor.” Judges Patricia Oney and Charles Pater were the first
two judges whose numbers were pulled from the bottle.
         {¶ 75} Nearly a year later, Osie decided to waive his right to a jury trial.
He submitted a written, signed jury waiver on March 31, 2010. The trial court
held a hearing that day, during which Judge Powers conducted a jury-waiver
colloquy with Osie, and Osie signed another written waiver, this time in open
court. Both jury waivers were filed.
         {¶ 76} Also on March 31, the trial court filed the following judgment
entry:


                The Court, having accepted the Defendant’s Waiver of a
         Trial by Jury * * * and * * * having previously determined, by
         random draw, that JUDGE PATRICIA S. ONEY and JUDGE
         CHARLES PATER shall be assigned to sit as part of a three-judge
         [panel] * * * in the event that Defendant entered an appropriate
         waiver of trial by jury, it is
                ORDERED that a three-judge panel shall be empanelled,
         * * * to consist of JUDGE NOAH E. POWERS II, presiding, with
         JUDGES PATRICIA S. ONEY and CHARLES PATER acting as
         the balance of the three-judge panel * * *.




                                           19
                             SUPREME COURT OF OHIO




(Italics and capitalization sic.) This entry was signed by both Judge Powers, in
his capacity as “Assigned Trial Judge,” and Judge Sage, in his capacity as
“Current Presiding and Administrative Judge” of the Butler County Court of
Common Pleas.
       {¶ 77} Osie contends that this selection procedure violated R.C. 2945.06,
which governs the selection of three-judge panels in bench-tried capital cases,
because Judge Powers was not the presiding judge of the common pleas court and
was therefore not authorized by R.C. 2945.06 to choose the other members of the
three-judge panel.    Osie further contends that because Judge Powers lacked
authority to choose the panel, the panel lacked jurisdiction to try this capital case.
       {¶ 78} R.C. 2945.06 provides:


       If the accused is charged with an offense punishable with death, he
       shall be tried by a court to be composed of three judges, consisting
       of the judge presiding at the time in the trial of criminal cases and
       two other judges to be designated by the presiding judge or chief
       justice of that court * * *.


       {¶ 79} We have recently had occasion to construe R.C. 2945.06. See State
v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557. In Wesson, we
held: “The term ‘presiding judge,’ as used in R.C. 2945.06, does not refer to the
judge to whom a capital case has been assigned, but rather refers to the presiding
judge of the common pleas court.” Wesson at ¶ 46.
       {¶ 80} We begin by observing that at trial, Osie never objected to either
the panel members or to the procedures used in selecting the panel. Furthermore,
in Wesson we expressly declined to hold that “error in the selection of the three-
judge panel is per se reversible error [or] that such an error could not be waived.”
Id. at ¶ 50. In Wesson, the defense “never objected to the procedure followed by




                                          20
                                 January Term, 2014




[the judge] to select the panel member nor objected to the panel members” and
thereby “forfeited all but plain error.” Id. at ¶ 51. Like Wesson, Osie failed to
object at trial and therefore has forfeited all but plain error.
        {¶ 81} There are three prerequisites to a finding of plain error: “First, there
must be an error, i.e., a deviation from a legal rule. * * * Second, the error must
be plain. * * * Third, the error must have affected ‘substantial rights.’ We have
interpreted this aspect of the rule to mean that the trial court’s error must have
affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002).
        {¶ 82} In this case, Osie fails to demonstrate the first, and most
fundamental, of these prerequisites: the existence of an error. No error inhered in
the selection of the panel. The legal rule established by R.C. 2945.06 is that the
presiding judge of the common pleas court has the power to appoint the panel
members.     Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557,
syllabus. And there was no deviation from that rule in this case, because Judge
Powers did not appoint the panel. Judge Sage did, by signing the March 31 entry.
        {¶ 83} “A court of record speaks only though its journal and not by oral
pronouncement or mere written minute or memorandum.” Schenley v. Kauth, 160
Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the syllabus. Therefore,
the March 31, 2010 journal entry—not the session of the trial court at which the
names of the panel members were drawn—constituted the actual appointment of
the panel.    Because Judge Sage signed that entry, it was Judge Sage who
appointed the panel.
        {¶ 84} Therefore, we reject Osie’s argument that although Judge Sage
signed the March 31 entry appointing the panel, “he took no part in the actual
designation of the other two judges.”           The March 31 entry was the “actual
designation of the other two judges.” The fact that Judge Powers presided over




                                           21
                                SUPREME COURT OF OHIO




the hearing at which the panel members were drawn does not matter, just as it
does not matter that a court employee actually drew the names from the bottle.
        {¶ 85} Additionally, “[r]eversal for plain error ‘is warranted only if the
outcome of the trial clearly would have been different absent the error.’ ” Wesson
at ¶ 52, quoting State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). As
Wesson demonstrates, the claimed error was not outcome-determinative in this
case.
        {¶ 86} In Wesson, even though the wrong judge (the judge presiding over
the trial, rather than the presiding judge of the court) appointed the panel
members, we declined to find plain error because the defendant did not contend
that “the appointment of different members to the three-judge panel would have
changed the outcome of the proceeding. Further, both of the panelists served as
members of the Summit County Court of Common Pleas. Nothing suggests that
either was ineligible or unqualified to hear the case.” Wesson, 137 Ohio St.3d
309, 2013-Ohio-4575, 999 N.E.2d 557, at ¶ 52.
        {¶ 87} Here, as in Wesson, Osie does not contend that the appointment of
different members to the panel would have changed the outcome in his case.
Moreover, as in Wesson, both panelists were judges of the appropriate common
pleas court, and nothing in the record suggests that either judge was ineligible or
unqualified to hear the case.
        {¶ 88} For the foregoing reasons, the procedure whereby Judges Oney and
Pater were appointed to the panel was not plain error. Osie’s failure to make a
contemporaneous objection to that procedure forfeits his claim.        Hence, we
overrule Osie’s ninth proposition of law.
                                 II. Confession Issues
                          A. Voluntariness of Confession
        {¶ 89} Osie’s 15th and 16th propositions of law challenge the
voluntariness of his confession and will be considered together.




                                          22
                               January Term, 2014




                                Osie’s Confession
       {¶ 90} When Osie arrived at the sheriff’s office on the night of his arrest,
he was given a soft drink and taken to the interview room, where his handcuffs
were removed. Detective Rob Whitlock read him his Miranda rights from a card.
Whitlock testified at the suppression hearing that he told Osie to sign the card “if
he understood his rights and he wanted to go ahead and talk to us.” Osie signed.
       {¶ 91} The detectives then talked to Osie for about 15 minutes, without
recording the conversation. During this part of the interrogation, Osie claimed
that Williams had “come at him” with a knife and that Osie “had taken the knife
and turned it on Mr. Williams * * * to stab him twice.”
       {¶ 92} Then they turned on the tape recorder, and Detectives Whitlock and
Melissa Gearhart interviewed Osie from 7:58 p.m. to 8:43 p.m. Osie changed his
story several times during this interview, but ultimately confessed to cutting
Williams’s throat, stabbing him, and stealing from him. After the first taped
interview concluded, Osie was given a fast-food meal. At 9:07 p.m., Detective
Gearhart turned on the tape recorder and began a second interview with Osie,
during which she asked him about the whereabouts of the knife and about the
goods stolen from the house. This interview lasted ten minutes.
                                Alleged Coercion
       {¶ 93} “In deciding whether a defendant’s confession is involuntarily
induced, the court should consider the totality of the circumstances * * *.” State
v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the
syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d
1155 (1978). Nevertheless, “the use of an inherently coercive tactic by police is a
prerequisite to a finding of involuntariness.” State v. Perez, 124 Ohio St.3d 122,
2009-Ohio-6179, 920 N.E.2d 104, ¶ 71, citing Colorado v. Connelly, 479 U.S.
157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).           Consequently, unless the
detectives used a coercive tactic, we need not assess the totality of the




                                        23
                             SUPREME COURT OF OHIO




circumstances. State v. Treesh, 90 Ohio St.3d 460, 472, 739 N.E.2d 749 (2001);
Perez at ¶ 71. “Evidence of use by the interrogators of an inherently coercive
tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or
sleep) will trigger the totality of the circumstances analysis.” State v. Clark, 38
Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).
       {¶ 94} In his 16th proposition of law, Osie claims that the detectives used
a coercive tactic when they urged Osie to tell the truth so as to keep Patterson
clear of the investigation. Osie contends that this alone rendered his confession
involuntary.
       {¶ 95} During the first taped interview, Detective Gearhart asked Osie:
“And who is the one person that you sent the text to, after everything was done?”
Osie replied, “Robin.” Gearhart and Osie then had this exchange:


                Q Okay. So * * * here is what you don’t realize that you’re
       not doing right now by not giving us the big picture, do you love
       Robin?
                A Yeah.
                Q Love her a lot?
                A Yeah.
                Q Okay. The one person that you’ve sent a text to, after
       this has happened, which is last night, is Robin, she is the only
       other person besides you that knows that something has happened
       to David. Where is that going to take us? * * *
                A To me.
                Q Where is that going to take us? No, think about it. * * *
       You’ve sent your girlfriend who you love to death a text.
                ***




                                        24
                        January Term, 2014




       * * * You’re not going to have to worry about David
anymore, but you’re going to sit here * * * and tell us I did all of
this stuff, I’ve punched him, I’ve stabbed him, I’ve slit his throat,
* * * one other person knows that something’s happened to David,
maybe not what, I don’t know what your words were earlier, but
misconstrued or whatever, you sent her a text that said, you don’t
have to worry about David anymore?
       A Uh-huh.
       Q Who does that take us to, because you don’t want to fill
in the blanks?
       A. Her.
       Q. Bingo. Is that what you want to leave us with, you love
her?
       A Uh-huh.
       Q You need to think about that. Because I guarantee her
fingerprints are in the house, she had been there?
       A Yeah.
       Q They had a business together.
       A Yeah.
       Q What is that going to do for her, what are you doing for
her right now by not completing your story, this is your story * * *
but that’s what you’re doing to her, * * * you need to think about
that. This is what you’re doing to her.
       * * * Don’t turn around and try and do it this way, though,
because that’s where it’s going to take us. And I don’t think you
want to do that.
       ***




                                 25
                             SUPREME COURT OF OHIO




               But getting the stuff back is going to help you * * *. It’s a
       big deal for you, and it’s not a big deal for Robin. Where is the
       TV?


       {¶ 96} Threats against a suspect’s family can be coercive. See generally
Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (police
threatened that suspect’s children would be taken from her if she refused to
cooperate); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760
(1961) (confession followed police chief’s pretense of placing a call ordering
suspect’s wife brought in for questioning).
       {¶ 97} In particular, “threats to arrest members of a suspect’s family may
cause a confession to be involuntary.” United States v. Finch, 998 F.2d 349, 356
(6th Cir.1993). The issue “turns on * * * whether the threat could have been
lawfully executed,” i.e., whether the police had probable cause to arrest the person
in question. United States v. Johnson, 351 F.3d 254, 263 (6th Cir.2003). When
there is no probable cause for the threatened arrest and therefore no legal basis for
carrying out the threat, a confession caused by the threat is involuntary. Id. at
262.
       {¶ 98} In Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,
we held that police had not coerced the defendant when they indicated to him that
his wife could be subject to arrest, because the police indeed had probable cause
to arrest the defendant’s wife. Id. at ¶ 72-76. “Indeed, it may more generally be
said that a mere threat to take action which would be lawful and necessary absent
cooperation is not objectionable.”     2 LaFave, Israel, King & Kerr, Criminal
Procedure, Section 6.2(c), at 623 (3d Ed.2013), fn. 96.
       {¶ 99} The alleged threats to involve Patterson in the investigation are, if
anything, less coercive than the circumstances in Perez: Patterson was not Osie’s
wife, and “[a] relationship other than a spousal relationship is not as susceptible to




                                         26
                                January Term, 2014




coercion by threat or promise.”         Johnson v. State, 513 N.E.2d 650, 652
(Ind.1987).
       {¶ 100} Moreover, the detectives never threatened to arrest Patterson.
Detective Gearhart did suggest that Osie’s failure to come clean might implicate
Patterson as a suspect (“Who does that take us to, because you don’t want to fill
in the blanks?”).     But “vague and indefinite” statements do not render a
confession involuntary. Id. at 653. Moreover, “the police may bring to the
defendant’s attention the probability that his relative may be culpable.”
Commonwealth v. Raymond, 424 Mass. 382, 396, 676 N.E.2d 824 (1997).
       {¶ 101} In United States v. Jones, 32 F.3d 1512 (11th Cir.1994), an officer
told the defendant that his girlfriend would continue to be a suspect unless he
explained her participation and that if his girlfriend was part of the robbery, she
was subject to prosecution. No promise was made that his girlfriend would not be
prosecuted if he cooperated. The court concluded: “Not only was this information
true, but also such comments or information would not render Jones's subsequent
statements involuntary.” Id. at 1517. See also United States v. Haynes, 301 F.3d
669, 684 (6th Cir.2002) (alleged threats to take legal action against defendant’s
girlfriend and daughter “were not of such a gravity that an ordinary person * * *
would have lost the will to resist”); State v. Edwards, 116 S.W.3d 511, 530-531
(Mo.2003) (police had interviewed defendant’s wife and children and told him
that they would do so again if he did not tell the truth; held, not coercive).
       {¶ 102} We conclude that Detective Gearhart’s discussion of Patterson’s
potential involvement during the interrogation was not coercive.
                                     Intoxication
       {¶ 103} In his 15th proposition of law, Osie contends that intoxication and
cocaine use rendered him incapable of voluntarily waiving his right to remain
silent. Sometime after Detective Whitlock Mirandized Osie, Osie told him that he
had “some beers” that day, and on the previous night (February 13), he and Robin




                                          27
                            SUPREME COURT OF OHIO




Patterson had been “doing lines of cocaine.” However, Whitlock testified that
Osie did not smell of alcohol and did not appear to be intoxicated.
       {¶ 104} There was no evidence at the suppression hearing indicating that
Osie had used cocaine more recently than the night before the interrogation.
Moreover, the defense submitted no evidence to show how long the effects of
cocaine might be expected to continue. Therefore, there was nothing to refute
Whitlock’s testimony that Osie did not appear intoxicated.
       {¶ 105} Moreover, the record shows that the confession was voluntary
under the totality of the circumstances. The totality of the circumstances includes
“the age, mentality, and prior criminal experience of the accused; the length,
intensity, and frequency of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement.” Edwards, 49 Ohio
St.2d 31, 358 N.E.2d 1051, paragraph two of the syllabus.
       {¶ 106} There is no evidence that Osie was mistreated in any way. He
was given food and drink and during both interviews was permitted to smoke “as
he wished.” There is no evidence that he was threatened or promised anything.
Osie was interrogated for approximately an hour; then he had a 24-minute break,
followed by ten more minutes of interrogation. The record shows that Osie was
around 47 years old at the time of the interrogation. Osie never complained of
being tired or sleepy, having a cloudy or distorted memory, or being under the
influence of any mind-altering substance. Detective Whitlock testified that he
appeared to be nervous, but not confused.
       {¶ 107} Under the totality of the circumstances, we conclude that Osie
voluntarily waived his rights and that his confession was voluntary. Accordingly,
Osie’s 15th and 16th propositions of law are overruled.




                                        28
                                      January Term, 2014




                           B. Partial Recording of Interrogation
         {¶ 108} In his 18th proposition of law, Osie contends that the trial court
should have suppressed his confession because the detectives who obtained it
recorded only part of the interrogation.
         {¶ 109} Nothing in the federal or Ohio Constitution requires that
confessions or police interviews be recorded. State v. Smith, 80 Ohio St.3d 89,
106, 684 N.E.2d 668 (1997). But Osie contends that if police do record an
interview with a suspect, due process and fundamental fairness require them to
record the whole interview, not just a portion of it. He contends that if police fail
to record the whole interview, the trial court must exclude the recorded portion
from evidence.
         {¶ 110} Osie did not, at trial, raise the partial recording of the interview as
a ground for excluding the recorded portions. Therefore, he has waived this issue
unless he can demonstrate plain error.
         {¶ 111} Osie’s claim is a novel one at best. He cites no cases holding that
partial recording of a custodial interview is grounds for excluding the recorded
portion. The cases he does cite do not stand for any such proposition.6 See
United States v. Shaver, 89 Fed.Appx. 529, 532-533 (6th Cir.2004) (neither
Fed.R.Evid. 106 nor common-law “doctrine of completeness” entitled defendant
to introduce his own self-serving hearsay statements at trial); United States v.
Spearman, 186 F.3d 743, 756 (6th Cir.1999) (trial court did not err in allowing the
government to play only portions of an incriminating videotape; defense had been
given the opportunity to play the entire videotape); State v. Davis, 4 Ohio App.3d
199, 447 N.E.2d 139 (1982) (under Evid.R. 106, a party may be compelled to

6
  One state supreme court has used its supervisory authority to adopt a rule that any recording of
an interrogation is admissible only if it is complete. State v. Barnett, 147 N.H. 334, 337-338, 789
A.2d 629 (2001). Another state supreme court has held that the Due Process Clause of that state’s
Constitution requires police to record all custodial interrogations conducted in a place of detention
in their entirety when feasible. Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985).




                                                 29
                             SUPREME COURT OF OHIO




choose between admitting an entire tape-recorded statement and forgoing use of
the statement altogether).
       {¶ 112} None of these cases holds, implies, or even suggests, that where a
conversation was partly recorded and partly unrecorded, the trial court must
exclude the recorded portion.     Nor are these cases based on constitutional
principles.   (Although Davis does speak of “the fundamental fairness of
presenting statements in context,” id. at 201, its holding is ultimately based on
Evid.R. 106.) An error is plain error only if the error is obvious.   E.g., State v.
Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 60. Moreover,
plain error must be plain “at the time that the trial court committed it.” State v.
Barnes, 94 Ohio St.3d at 28, 759 N.E.2d 1240. In view of the lack of authority to
support Osie’s argument, we cannot find that the trial court committed plain error
by not suppressing his confession sua sponte on the ground that only part of the
interrogation was recorded. Hence, we overrule his 18th proposition of law.
                         III. Hearsay/Confrontation Issue
       {¶ 113} In his second proposition of law, Osie contends that hearsay
statements by the victim, David Williams, were introduced at trial and used as
substantive evidence of Osie’s guilt, in violation of Osie’s Sixth Amendment right
to confront the witnesses against him.
       {¶ 114} Osie does not specifically identify the particular statements
alleged to have been improperly admitted. However, according to his brief, the
statements at issue were “admitted * * * through the testimony of Nick Wiskur.”
       {¶ 115} Wiskur’s testimony described statements he overheard Williams
make during Williams’s February 13, 2009 phone conversation with Osie.
Wiskur testified that Williams said: “I just want to make this right. Robin won’t
return any of my phone calls. I don’t really have an issue with it.” Wiskur further
testified that Williams said: “I’m going to go to the police. I’m going to file
charges. This needs to be taken care of.”




                                         30
                                January Term, 2014




       {¶ 116} These statements were admitted over defense objection. The state
did not contest the defense claim that the statements were hearsay, but argued that
they were admissible under two hearsay exceptions: excited utterance and
forfeiture by wrongdoing, Evid.R. 804(B)(6).          The trial court overruled the
defense objection and admitted Wiskur’s testimony about Williams’s statements
under the forfeiture-by-wrongdoing exception of Evid.R. 804(B)(6).
       {¶ 117} In their briefs, both parties extensively analyze the admissibility
of Williams’s statements under Evid.R. 804(B)(6) and under the forfeiture-by-
wrongdoing exception to the Confrontation Clause of the Sixth Amendment. See
generally Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 N.E.2d 488
(2008) (discussing common-law doctrine of forfeiture by wrongdoing). However,
we conclude that Williams’s statements were admissible for a more fundamental
reason: they were not hearsay, as Evid.R. 801(C) defines that term, because they
were not introduced for the purpose of proving the truth of the matters asserted
therein.
       {¶ 118} “ ‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Evid.R. 801(C). A statement is not hearsay when offered for a
purpose other than to prove the truth of the matter asserted. State v. Davis, 62
Ohio St.3d 326, 343, 581 N.E.2d 1362 (1991). In this case, the state did not use
Williams’s statement to establish the truth of the matter asserted, but for the
nonhearsay purpose of establishing Osie’s motive in killing Williams.
       {¶ 119} In his conversation with Osie, Williams said: “I’m going to go to
the police. I’m going to file charges.” The “matter asserted” in Williams’s out-
of-court statement was that he intended to report something (the thefts from UCU)
to the authorities and to file charges concerning the matter.
       {¶ 120} The state did not introduce Williams’s statement for the purpose
of showing that Williams actually intended to file charges. In fact, whether




                                          31
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Williams so intended does not affect Osie’s guilt or innocence of aggravated
murder. Therefore, the relevance of Williams’s statement to Osie did not hinge
upon whether it was true.
        {¶ 121} Instead, the statement was relevant because Williams made it to
Osie.   Specification 3 to the aggravated-murder counts charged Osie with
murdering “a witness to an offense who was purposely killed to prevent the
victim’s testimony in any criminal proceeding.” R.C. 2929.04(A)(8). To prove
this specification, the state had to prove that Osie killed Williams for the purpose
of preventing him from filing a criminal charge. The fact that Williams told Osie
that he intended to go to the police to file charges was relevant to prove Osie’s
purpose in killing Williams, and consequently, to prove the (A)(8) specification.
        {¶ 122} “It is well established that extrajudicial statements made by an
out-of-court declarant are properly admissible to explain the actions of a witness
to whom the statement was directed.” State v. Thomas, 61 Ohio St.2d 223, 232,
400 N.E.2d 401 (1980). A statement is not hearsay when introduced to show its
effect on the listener. “A statement that D made a statement to X is not subject to
attack as hearsay when its purpose is to establish the state of mind thereby
induced in X, such as * * * having knowledge or motive * * *.” (Footnotes
omitted.)   2 McCormick on Evidence, Section 249, at 191 (7th Ed.Broun
Ed.2013).
        {¶ 123} That is precisely how the state used Williams’s statement to Osie:
to show that Osie believed that Williams intended to file charges. In closing
argument, the prosecutor said:


             And so what happens later is a phone call to Dave
        [Williams], and so we knew that Osie knows that the information
        was turned over to Dave, because then the conversation between
        Dave and Greg Osie on the phone where Dave specifically told




                                        32
                               January Term, 2014




       him, “I am going to the police. I am going to file charges. I am
       going to the police.”
               That was the last conversation that we know they had for a
       fact when the phone hung up.


(Emphasis added.)
       {¶ 124} The state reiterated this point in its rebuttal argument.        The
prosecutor argued that Osie’s purpose in killing Williams “was to keep him from
presenting that criminal testimony.” In support of this assertion, the prosecutor
again cited Wiskur’s testimony about the Williams-Osie conversation:


               What does Osie do then [after talking to Wiskur]? He
        calls Dave that same day, and they had that very heated argument
        that Nick Wiskur overhears.
                And in that argument, Dave tells Osie, “I’m going to the
        police.”


       {¶ 125} The state used Williams’s statement to Osie, as testified to by
Wiskur, solely for the nonhearsay purpose of showing its effect on Osie—i.e.,
showing that Osie killed Williams because he believed that Williams intended to
file charges with regard to the thefts. Because the statement was not introduced to
prove the truth of the matter asserted therein, it was not “hearsay” as the Rules of
Evidence define that term.
       {¶ 126} For the same reason, the statement’s admission did not violate the
Confrontation Clause. “The Clause * * * does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.”
Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177




                                        33
                               SUPREME COURT OF OHIO




(2004), fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85
L.Ed.2d 425 (1985). Accordingly, we overrule Osie’s second proposition of law.
                     IV. Seizure of “Attorney Work Product”
       {¶ 127} In his seventh proposition of law, Osie claims that the state
violated his Sixth Amendment rights by seizing confidential materials, which he
describes as “attorney work product,” during a search of his jail cell and that the
trial court erred by admitting these materials into evidence.
       {¶ 128} At a motion hearing before trial, defense counsel complained that
Osie’s cell in the Butler County jail had been searched and that certain documents
had been seized. Defense counsel explained that they had asked Osie to write
down information that might assist them in preparing his defense, such as
“mitigation witnesses, fact witnesses, names, address[es], phone numbers,
whatever.” Counsel stated that they had received a phone call from Osie “saying
they came in and searched his cell and took all of the items that he had been
preparing for us.” After the seizure, the state provided copies of the seized items
to the defense in discovery.
       {¶ 129} The trial court said: “If * * * you [defense counsel] want to bring
it before the Court and have an evidentiary hearing, I’ll be more than willing to
entertain that if that’s necessary.”     The court admonished the prosecution:
“[T]hey’ve got a right to have their work product protected, and I’m not saying
that what you did wasn’t appropriate. I don’t have the evidence in front of me to
say whether it was or it wasn’t. But I am saying that if it’s brought before me,
I’m going to scrutinize it.” The court then ordered the prosecution to examine its
file and make sure that everything removed from Osie’s cell had been turned over
to the defense.
       {¶ 130} When the defense raised the issue of seized work product at a
later hearing, the trial court told counsel, “[I]f you think the prosecution did
something wrong, * * * something that’s suppressible, unconstitutional, whatever,




                                         34
                               January Term, 2014




file a motion and bring it to my attention, and I’ll conduct an evidentiary hearing
on it, and we can put witnesses on the stand and deal with it in that manner.”
       {¶ 131} "Implicit within the meaning of [the constitutional right to
counsel] is the right of a criminal defendant to consult privately with his
attorney." State v. Milligan, 40 Ohio St.3d 341, 342, 533 N.E.2d 724 (1988). The
leading case concerning the Sixth Amendment consequences of government
intrusions into attorney-client communications is Weatherford v. Bursey, 429 U.S.
545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).
       {¶ 132} In Weatherford, several persons were arrested for vandalizing a
government building. One of them was an undercover law-enforcement agent.
One of his fellow arrestees retained a lawyer and, still unaware of the agent’s true
function, invited the agent to join them in confidential conversations on two
occasions before trial. The Weatherford court rejected the defendant’s claim that
the agent’s presence during attorney-client conversations violated the Sixth
Amendment under the circumstances of that case. However, the court noted,


               Had Weatherford [the agent] testified at Bursey’s [the
       offender’s] trial as to the conversation between Bursey and [his
       attorney]; had any of the State’s evidence originated in these
       conversations; had these overheard conversations been used in any
       other way to the substantial detriment of Bursey; or even had the
       prosecution learned from Weatherford * * * the details of the
       [attorney-client] conversations about trial preparations, Bursey
       would have a much stronger case.


Id. at 554. However, there was “no tainted evidence * * *, no communication of
defense strategy to the prosecution, and no purposeful intrusion” into the attorney-




                                        35
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client relationship. Id. at 558. Accordingly, “there was no violation of the Sixth
Amendment.” Id.
       {¶ 133} Although Weatherford involved the actual presence of a
government informant during consultations between the defendant and his
counsel, the same principles have been applied to a case in which a defendant’s
written communication to his counsel was seized from his jail cell and used to
impeach his testimony at trial. See Bishop v. Rose, 701 F.2d 1150 (6th Cir.1983).
In Bishop, however, the result was different. The court found that the defendant’s
right to counsel had been violated because the confidential document was, in that
case, used at trial to the substantial detriment of the defendant.
       {¶ 134} Osie argues that even though the defense never filed a motion to
suppress the alleged work product, the trial court “should have rejected the
admission of the material as the gatekeeper of the evidence.” But Osie cites no
relevant authority to support this contention.
       {¶ 135} In this case, the trial court correctly noted that it had no evidence
before it. The trial court recognized that the defense had “a right to have their
work product protected” and made clear that if the defense filed a motion to
suppress, the court would hold an evidentiary hearing. Osie’s counsel had ample
opportunity to request an evidentiary hearing into the defense claim that work
product had been seized. Counsel declined to do so.
       {¶ 136} Moreover, the defense never objected at trial to the admission of
State’s Exhibit 64. Nor did the defense object to any other item of evidence on
the ground that its seizure by the state violated the Sixth Amendment or on any
related ground.    “By failing to file a motion to suppress illegally obtained
evidence, a defendant waives any objection to its admission.” State v. Campbell,
69 Ohio St.3d 38, 44, 630 N.E.2d 38 (1994).
       {¶ 137} The record provides no basis for a finding of plain error. Osie
contends that two items of confidential work product were seized and used against




                                          36
                                 January Term, 2014




him at trial, State’s Exhibit 64 and a list of names, places, and phone numbers.
But, as seen from the discussion below, the purported list is not in the record and
was never introduced at trial. Osie does not show how the list was “used” against
him or that such a list even existed. And as will also be seen in our discussion
below, State’s Exhibit 64, the 48-page letter, cannot credibly be claimed to be
attorney work product or a confidential attorney-client communication.
       {¶ 138} In discussing his seventh proposition of law, Osie never identifies
what, specifically, the trial court should have suppressed. However, in his 14th
proposition of law (in which he asserts prosecutorial misconduct), he does
specifically identify State’s Exhibit 64 as “attorney work product” that the state
should not have introduced against him. The state claims that Exhibit 64 was not
work product and that it was probative of Osie’s intent to kill Williams to protect
Patterson from criminal charges.
       {¶ 139} State’s Exhibit 64 was a 48-page letter, or series of letters,
handwritten by Osie and apparently directed to Robin Patterson, but never mailed.
In his reply brief, Osie contends that despite appearances, Exhibit 64 “was not a
letter” because he never intended to mail it. Osie describes Exhibit 64 as “a
journal that Osie was writing at the direction of his attorneys * * * with daily
journal entries that he imagined himself writing to Robin Patterson about the night
that David Williams was killed.”        Osie’s brief explains that “[h]is attorneys
encouraged him to write down his thoughts in journal form in lieu of writing
[Patterson] letters, due to the possibility of her being called as a witness.”
       {¶ 140} Osie’s description of Exhibit 64 is unsupported by anything in the
record. The only portion of the record Osie cites to support his assertions is the
first page of Exhibit 64. On that page, Osie wrote: “My lawyers told me I’m not
to write to you. They think you are a witness * * *.” But nothing in Exhibit 64,
or anywhere else in the record, indicates that this document is the result of “[h]is
attorneys encourag[ing] him to write down his thoughts in journal form.” Nor




                                          37
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does anything in the record substantiate Osie’s claim that he never intended to
mail the letters.
        {¶ 141} Nor does Exhibit 64 fit the description that defense counsel gave
the trial court: “When we met with him initially, we said write down things for us
you may think assists in our defense; mitigation witnesses, fact witnesses, names,
address[es], phone numbers, whatever * * *.” There is nothing in Exhibit 64 to
suggest that it was written at the direction of Osie’s attorneys or intended for
them.7 Instead, it is a rambling series of declarations, including expressions of
love, accusations, pleas, threats, memories, and promises, all directed to Osie’s
girlfriend. In sum, Osie fails to show that State’s Exhibit 64 was a confidential
attorney-client communication or attorney work product.
        {¶ 142} Osie also contends that the state seized “a list of names, places,
and phone numbers” created by Osie at the direction of his counsel and “designed
to aid in the investigation and preparation of Osie’s defense and mitigation
presentation.” Osie accuses the state not only of confiscating this list but of using
it against him at trial.
        {¶ 143} Osie does not, however, explain how the state used the list.
Initially, we note that no such list was introduced into evidence at trial;
consequently, Osie’s claim that the trial court erred by admitting confidential
attorney work product into evidence could not apply to the list.
        {¶ 144} “Even where there is an intentional intrusion by the government
into the attorney-client relationship, prejudice to the defendant must be shown
before any remedy is granted.” United States v. Steele, 727 F.2d 580, 586 (6th
Cir.1984), citing United States v. Morrison, 449 U.S. 361, 365-366, 101 S.Ct.


7
  The exhibit does contain some factual allegations about the case, but it principally consists of
complaints about Patterson’s refusal to contact Osie; accusations that Patterson was a drug user,
sexually unfaithful to Osie, and promiscuous; reminiscences about their sex life; declarations of
love; apologies for having assaulted Patterson; and threats against Patterson, both veiled and
explicit.




                                               38
                               January Term, 2014




665, 66 L.Ed.2d 564 (1981). To determine prejudice, a court must look to the
factors identified in Weatherford: “(1) whether the government deliberately
intruded in order to obtain confidential and privileged information, (2) whether
the government obtained directly or indirectly any evidence which was or could
be used at trial as a result of the intrusion, (3) whether any information obtained
was or could be used in any manner detrimental to the defendant, and (4) whether
details about trial preparation were learned by the government.” Milligan, 40
Ohio St.3d at 344, 533 N.E.2d 724.
       {¶ 145} In this case, there was no showing of any of the above four
factors. The record contains no evidence that the search of Osie’s cell was a
“deliberate intru[sion] in order to obtain confidential and privileged information.”
Id. As already noted, Osie’s list of names, places, and phone numbers was not
introduced at trial. Nor did the state use it to impeach any witness. Compare
Bishop v. Rose, 701 F.2d at 1156-1157 (prosecution used defendant’s 14-page
handwritten document, intended for his attorneys, on cross-examination of
defendant). There was no showing that possession of the list enabled the state to
obtain any evidence that “was or could be used at trial.” Milligan at 344. Nor
was there any showing that the information obtained could be used to Osie’s
detriment in any way or that the prosecution learned any details about trial
preparation from the list. Accordingly, the defense did not demonstrate that they
were entitled to any remedy with regard to Osie’s list of names, places, and phone
numbers.
       {¶ 146} Osie’s seventh proposition of law was waived at trial, and Osie
fails to show plain error. Accordingly, this proposition of law is overruled.




                                         39
                             SUPREME COURT OF OHIO




                           V. Prosecutorial Misconduct
                A. Brady Claim—Delayed Disclosure of Evidence
       {¶ 147} In his eighth proposition of law, Osie contends that the state’s
delayed disclosure of evidence favorable to him violated his right to a fair trial.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
       {¶ 148} Osie contends that two items were subjected to delayed
disclosure. First there was a laboratory report by a fingerprint analyst for the
Ohio Bureau of Criminal Investigation and Identification (“BCI”). The report
involved a box that contained a knife that, according to the prosecutor, may or
may not have been the murder weapon. The report was dated April 13, 2009,
nearly a year before the prosecution learned of its existence and disclosed it to the
defense.
       {¶ 149} The report stated that, on February 27, 2009 (13 days after the
murder), Detective Monroe submitted a “[w]hite box containing [a] knife.” The
BCI analyst examined the box for fingerprints and found no latent prints with
sufficient ridge detail for comparison.
       {¶ 150} This report was disclosed to the defense on April 8, 2010.
According to the prosecutor, this was the same day the prosecution itself learned
of the report’s existence. The prosecutor’s letter of April 8, 2010, to lead defense
counsel stated: “[W]e do not intend to use this report because nothing was
revealed and the Defendant admitted that he took the murder weapon and threw it
in the river. However, if you wish to admit the report, we will not object and
stipulate to its admission.” (Emphasis sic.) Neither the box nor the lab report was
introduced into evidence by either party.
       {¶ 151} Second, the felony record of state’s witness Donald Simpson,
Osie’s cellmate to whom he had made damaging admissions, was not disclosed to




                                          40
                                       January Term, 2014




the defense until the same morning that Simpson testified.8 Simpson had three
felony convictions: vehicular assault, attempted sexual battery, and sexual battery.
           {¶ 152} Before cross-examining Simpson, defense counsel complained
about the late disclosure, stating that had Simpson’s record been disclosed earlier,
they “certainly would have given the name or * * * information to the private
investigator to investigate any further, but at this point, I mean he’s here, he’s
testified. * * * [W]e believe the information they’ve given us up to now, so we’ll
use that and move forward.”
           {¶ 153} Brady holds that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Evidence is
material if there is a “ ‘reasonable probability’ ” that the result of the trial would
have been different had the evidence been disclosed to the defense. Kyles v.
Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), quoting
United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481
(1985).       “A ‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898
(1988), paragraph five of the syllabus.
           {¶ 154} Brady imposes on the government an obligation to turn over
evidence that is both favorable to the defendant and material to guilt or
punishment. “Materiality pertains to the issue of guilt or innocence, and not to the
defendant's ability to prepare for trial.” United States v. Bencs, 28 F.3d 555, 560
(6th Cir.1994), citing United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976), fn. 20.
           {¶ 155} “Thus, Brady generally does not apply to delayed disclosure of
exculpatory information, but only to a complete failure to disclose.” Bencs at
8
    Simpson was the state’s second witness that day.




                                                  41
                            SUPREME COURT OF OHIO




560. “Delay only violates Brady when the delay itself causes prejudice.” United
States v. Patrick, 965 F.2d 1390, 1400 (6th Cir.1992), vacated and remanded on
other grounds sub nom. Mohwish v. United States, 507 U.S. 956, 113 S.Ct. 1378,
122 L.Ed.2d 754 (1993).
       {¶ 156} Osie does not explain how he was prejudiced by the delayed
disclosure.   He argues that had his counsel “had earlier knowledge of this
information [i.e., both the lab report and Simpson’s record], they would have been
available to develop a more thorough challenge of Simpson’s allegations that he
was collecting a knife that Osie had discarded.”        This claim is vague and
speculative, however, and thus fails to reach the level of a reasonable probability,
one that is “sufficient to undermine confidence in the outcome.” Johnston, 39
Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus.
       {¶ 157} With regard to the BCI report on the box, Osie argues that even a
“neutral” finding of no usable prints could be favorable to him. See Patler v.
Slayton, 503 F.2d 472, 479 (4th Cir.1974). But the significance, if any, of the
lack of prints on the box is unclear. The record does not disclose where the box
was found or anything else about it that might tie it to the murder or explain why
the lack of prints on it was exculpatory. Neither the box, the knife, nor the lab
report was introduced in evidence by either side. Moreover, the killer’s identity
was not contested. Osie had long since confessed that he stabbed Williams. On
these facts, Osie cannot show a reasonable probability that earlier disclosure of
the lab report would have made a difference in the outcome of the trial.
       {¶ 158} Simpson’s felony record was clearly Brady material. However,
the prosecutor did disclose it before Simpson testified, and he also elicited
Simpson’s felony convictions on direct examination.         Again, Osie does not
explain how earlier disclosure of Simpson’s record would have enhanced the
ability of the defense to impeach Simpson.
       {¶ 159} Osie’s eighth proposition of law is overruled.




                                        42
                               January Term, 2014




                           B. Other Misconduct Claims
       {¶ 160} In his 14th proposition of law, Osie contends that prosecutorial
misconduct denied him a fair trial. He divides his allegations into two categories:
trial misconduct and penalty-phase misconduct.
                                 Trial Misconduct
       {¶ 161} Osie’s claims of trial misconduct duplicate other propositions of
law in his brief.    First, he claims that the prosecutors improperly withheld
exculpatory evidence. Osie’s eighth proposition raises the same issue.
       {¶ 162} Second, Osie contends that the state relied on evidence obtained
during an “improper search” of his cell. Although this sounds like a Fourth
Amendment claim, his arguments actually duplicate his seventh proposition of
law, in which he claims that the state violated his Sixth Amendment rights by
obtaining and using “attorney work product.”
       {¶ 163} Because the claims raised in Osie’s seventh and eighth
propositions of law lack merit, we reject the claims raised in Part A of Osie’s 14th
proposition.
                            Penalty-Phase Misconduct
       {¶ 164} Osie’s penalty-phase-misconduct claims focus on the prosecutor’s
arguments, but Osie did not object to any of the three statements that he now
claims were improper.      No plain error occurred here, because none of the
prosecutor’s statements were improper.
       {¶ 165} First, Osie complains that the state made the following argument:


       [T]here are aggravating circumstances that were proved, and now
       let’s weigh that and think, an aggravated circumstance is
       something that goes beyond what we expect to see. It’s beyond the
       norm. But what did we hear yesterday [during Osie’s presentation
       of mitigating evidence] from questions, from answers about the




                                         43
                             SUPREME COURT OF OHIO




       defendant? We heard his childhood, normal. It’s great, normal.
       He was at one point married, normal. Two kids, normal. It’s the
       human existence. We heard what’s normal. That mitigation was
       in a word normal. It’s the typical human experience is what we
       heard, but aggravated circumstances are anything but normal.
       Those are abnormal.


       {¶ 166} The prosecutor also described Osie’s mitigating evidence as
“these feathers, these normal parts of human existence, * * * the normalcy of
feathers,” i.e., insubstantial when weighed against the grave aggravating
circumstances.
       {¶ 167} Osie contends that, by characterizing his mitigation as “normal,”
and, as such, deserving of little weight (“feathers”), the state’s argument denied
him the individualized consideration to which the Eighth Amendment entitles a
capital defendant at sentencing. See generally Woodson v. North Carolina, 428
U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (individualized
consideration is “a constitutionally indispensable part of inflicting the penalty of
death”).
       {¶ 168} However, the state was entitled to argue that Osie’s childhood had
little weight in mitigation. “Prosecutors can urge the merits of their cause and
legitimately argue that defense mitigation evidence is worthy of little or no
weight.” State v. Wilson, 74 Ohio St.3d 381, 399, 659 N.E.2d 292 (1996).
Individualized consideration “means that we must focus on ‘relevant facets of the
character and record of the individual offender.’ ” Enmund v. Florida, 458 U.S.
782, 798, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), quoting Woodson at 304.
Arguing about the merits of the specific evidence offered in mitigation by the
defense does not deny individualized consideration of that evidence—quite the
contrary.




                                        44
                               January Term, 2014




       {¶ 169} Osie further contends: “[T]he prosecutor argued that mitigation
evidence regarding Osie before the time of the crime was not relevant to the
sentencing determination.” Osie is referring to the following passage from the
prosecutor’s argument:


              The final thing I think that we heard was that before 2006,
       Mr. Osie may have been a bit different, but we’re here in 2010
       evaluating whether those aggravated circumstances he committed
       in 2009 outweigh what’s able to be put forward to you again here
       in 2010.


Osie contends that by making this argument, the prosecutor was “urging the court
to ignore mitigation” and “circumvent[ing]” R.C. 2929.04(B), which requires the
sentencer to consider the mitigating factors raised by the defendant.
       {¶ 170} However, immediately after the statement at issue here, the
prosecutor said:


       And I think that the way to look at this and a way to put them on
       the scales is they are like these feathers. Friends and family saying
       they love you, that I haven’t really done too much before this,
       those are feathers. They’re not entitled to much weight.


(Emphasis added.) The prosecutor was not urging the court to ignore the defense
mitigation or arguing that it was irrelevant. Indeed, he acknowledged that it had
its place “on the scales.” He simply argued that it was “not entitled to much
weight.” Isolated comments by a prosecutor are not to be taken out of context and
given their most damaging meaning. Donnelly v. DeChristoforo, 416 U.S. 637,




                                         45
                             SUPREME COURT OF OHIO




647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); State v. Hill, 75 Ohio St.3d 195, 204,
661 N.E.2d 1068 (1996).
       {¶ 171} Finally,    the    prosecutor   argued    that   the   witness-murder
specification, R.C. 2929.04(A)(8), was entitled to great weight, because “what
that factor is saying is that a witness was silenced to subvert justice.” The
prosecutor then made the following statement, which Osie claims was improper:
“This weight cannot be counterbalanced. There was nothing that was presented
as evidence going to any mitigating factor that can counterbalance that, that
silencing.”
       {¶ 172} This statement did not urge the court to “ignore mitigating
factors,” as Osie claims. Rather, it simply claimed that the (A)(8) factor had such
weight that Osie’s mitigation could not “counterbalance” it.
       {¶ 173} Osie fails to demonstrate plain error with respect to the
prosecutor’s arguments. Accordingly, Part B of his 14th proposition is waived.
                                 VI. Sentencing Issues
                                    A. Allocution
       {¶ 174} In his first proposition of law, Osie contends that the trial court
violated Crim.R. 32(A)(1) by failing to ask him if he had anything to say before
sentence was pronounced.
       {¶ 175} To provide the necessary context for analysis of this claim, we
begin with the penalty phase of Osie’s trial. On April 29, 2010, after the parties
had rested but before closing arguments commenced, the trial court had the
following exchange with Osie and his counsel:


               JUDGE POWERS: * * * All right, Mr. Howard [defense
       counsel], does Mr. Osie have anything he’d like to say by way of
       allocution?
               MR. HOWARD: No, Your Honor.




                                          46
                               January Term, 2014




               JUDGE POWERS: Does he understand that he can make
       an unsworn statement here today?
               MR. HOWARD: He does, Your Honor.
               JUDGE POWERS: And he understands that if he made
       such an unsworn statement, unless—it not being a sworn
       statement, he would not be cross-examined in this matter?
               MR. HOWARD: He does, Your Honor.
               JUDGE POWERS: All right. And you’ve explained all of
       that to him?
               MR. HOWARD: We have.
               JUDGE POWERS: Do you understand that, Mr. Osie?
               DEFENDANT: Yes.


       {¶ 176} On May 3, 2010, the panel held a sentencing hearing, at which it
sentenced Osie to death on Count 2 and also imposed sentences for the noncapital
offenses. At this hearing, the panel did not ask Osie whether he wished to make a
statement in his or her own behalf.
       {¶ 177} A week later, on May 10, the panel held a second sentencing
hearing.   The judge presiding over the case explained that at the original
sentencing on May 3, the trial court had


       failed to advise the defendant regarding the application of post-
       release control to the sentence imposed by the Court in this matter.
       As a result thereof, the Court believes that that sentence or a
       portion thereof was void, and that the defendant must be
       resentenced to correct that error, the same to include an advice on
       the application of post-release control to this matter. Accordingly,




                                           47
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       the Court has brought Mr. Osie forward here today to perform that
       duty.


       {¶ 178} The court then addressed Osie’s counsel, asking whether they
desired to put anything on the record; they declined. Immediately thereafter, the
court addressed Osie personally: “Does Mr. Osie wish to say anything?” Osie
replied: “No, Your Honor.” The court then proceeded to read the sentencing
opinion into the record and reimposed sentence on Osie for each of the offenses
(both capital and noncapital) of which he had been convicted.
       {¶ 179} Crim.R. 32(A)(1) provides: “At the time of imposing sentence,
the court shall * * * [a]fford counsel an opportunity to speak on behalf of the
defendant and address the defendant personally and ask if he or she wishes to
make a statement in his or her own behalf or present any information in mitigation
of punishment.” The rule applies to capital cases. State v. Campbell, 90 Ohio
St.3d 320, 738 N.E.2d 1178 (2000), paragraph two of the syllabus. Moreover,
“[i]n a case in which the trial court has imposed sentence without first asking the
defendant whether he or she wishes to exercise the right of allocution created by
Crim.R. 32(A), resentencing is required unless the error is invited error or
harmless error.” Id., paragraph three of the syllabus.
       {¶ 180} The state argues that the trial court complied with Crim.R.
32(A)(1) at the May 10 resentencing hearing when it asked Osie whether he
“wish[ed] to say anything” and Osie declined. We agree. The trial court clearly
regarded the sentence imposed at the May 3 hearing as void. Therefore, the May
10 hearing was “the time of imposing sentence” for purposes of Crim.R.
32(A)(1). At that hearing, the trial court asked Osie whether he wished to say
anything, and Osie said that he did not. The court gave Osie everything he was
entitled to under Crim.R. 32(A)(1).




                                         48
                                January Term, 2014




       {¶ 181} Osie contends, however, that the opportunity he was offered to
speak at the May 10 resentencing hearing appeared to have been “directed only
towards the non-capital counts.” Citing our decision in State v. Green, 90 Ohio
St.3d 352, 738 N.E.2d 1208 (2000), Osie contends that at the May 10 hearing, the
trial court should have “unambiguously” asked him if he had anything to say
before he was sentenced on his capital counts.
       {¶ 182} In Green, we determined that a trial court had failed to comply
with Crim.R. 32(A)(1), even though the court had asked the defendant whether he
had anything to say before he was sentenced. Our holding in Green was based, in
part, on the failure of the trial court in that case to make clear whether the court
was inviting the defendant to make a statement about the capital counts as well as
the noncapital counts: “The context suggests that the court may have solicited
comment only on the noncapital offenses.” Id. at 359.
       {¶ 183} Osie argues that this case resembles Green, in that “the context of
the trial court’s request here suggested that the court was only soliciting comment
on the post-release control issue.” We cannot agree.
       {¶ 184} Before asking Osie on May 10 if he wished to say anything, the
trial court had explained in open court that in its opinion, the sentence imposed on
May 3, or a portion thereof, was void. It was evident from the trial court’s
remarks that it regarded the entire sentence imposed on May 3 as being rendered
void (at least potentially) by the postrelease-control error. The stated purpose of
the resentencing was “to correct that error,” which threatened to render the
sentence void; from the trial court’s perspective, anything less than a complete
resentencing would risk failing to completely correct the error.
       {¶ 185} Therefore, it should have been—and almost certainly was—
obvious to Osie that the trial court intended to resentence him on all counts,
including the capital counts. That being the case, it was equally clear that the trial
court’s direct invitation to Osie to “say anything” also covered all counts,




                                         49
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including the capital counts. We find no ambiguity in that invitation and therefore
reject Osie’s proposed analogy to Green. Accordingly, Osie’s first proposition of
law is overruled.
                     B. Failure to Merge Death Specifications
       {¶ 186} In the penalty phase of a capital case, “where two or more
aggravating circumstances arise from the same act or indivisible course of
conduct and are thus duplicative,” they will be merged for sentencing purposes.
State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph five of the
syllabus. In his fourth proposition of law, Osie contends that the trial court erred
by failing to merge the felony-murder/burglary specification, R.C. 2929.04(A)(7),
and the witness-murder specification, R.C. 2929.04(A)(8). Osie argues that the
specifications should have merged on authority of State v. Fry, 125 Ohio St.3d
163, 2010-Ohio-1017, 926 N.E.2d 1239. For the reasons that follow, we agree;
however, the error can be corrected by our independent review, and so there is no
need to remand this case for resentencing.
       {¶ 187} In Fry, the defendant was convicted of aggravated murder with
specifications for aggravated burglary and witness-murder.         The trial court
merged the two specifications, but failed to so instruct the jury. On appeal, the
state argued that the trial court’s error was harmless because those two
specifications should not have merged in the first place.        We rejected that
argument:


               The state argues that the two specifications did not merge
       because the evidence proving these offenses was separate and
       distinct. However, * * * Fry unlawfully entered Knox's residence
       on July 31 to kill [the victim] either in retaliation for filing a
       criminal complaint against him or to prevent her from testifying
       against him in future criminal proceedings.       He murdered her




                                        50
                                  January Term, 2014




          shortly after entering the residence. Thus, Fry's actions in killing
          [the victim] during an aggravated burglary and killing her because
          she was a witness were “inextricably intertwined, and thereby
          constituted one indivisible course of conduct.”


Id. at ¶ 181, quoting State v. Garner, 74 Ohio St.3d 49, 54, 656 N.E.2d 623
(1995).
          {¶ 188} In this case, as in Fry, Osie’s object in trespassing in Williams’s
home, and also his reason for killing Williams, was to prevent him from filing a
criminal complaint against him or Patterson.           Moreover, the trespass, and
therefore the aggravated burglary, did not begin until Osie began to assault
Williams. Consequently, Osie’s actions in killing Williams during an aggravated
burglary and killing him because he was a witness appear to be “inextricably
intertwined” and hence “constituted one indivisible course of conduct.” Garner at
54.
          {¶ 189} We can cure any error related to the duplicative specifications by
merging the two specifications as part of our independent sentence review. Fry,
125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 183, citing State v.
Mitts, 81 Ohio St.3d 223, 232, 690 N.E.2d 522 (1998).
                 C. Sufficiency of Evidence of Death Specifications:
                            Witness-Murder Specification
          {¶ 190} In his third proposition of law, Osie contends that the state failed
to present evidence sufficient to convict him on the R.C. 2929.04(A)(8) witness-
murder specification.
          {¶ 191} Under R.C. 2929.04(A)(8), a person who commits aggravated
murder is guilty of a capital specification if




                                           51
                            SUPREME COURT OF OHIO




        [t]he victim of the aggravated murder was a witness to an offense
        who was purposely killed to prevent the victim’s testimony in any
        criminal proceeding and the aggravated murder was not committed
        during the    commission,    attempted    commission,   or     flight
        immediately after the commission or attempted commission of the
        offense to which the victim was a witness * * *.


(Emphasis added.) Osie’s principal argument here is that unless a formal criminal
proceeding has actually commenced, a victim cannot have been killed to prevent
his or her testimony “in any criminal proceeding” within the meaning of R.C.
2929.04(A)(8).
        {¶ 192} Osie argues that since no formal criminal charges had been filed
against anyone with regard to the alleged thefts from UCU, there was no
“criminal proceeding.” And because there was no criminal proceeding, Osie
contends, R.C. 2929.04(A)(8) could not apply to the murder of Williams, even
though that murder was committed for the purpose of preventing Williams from
complaining to law-enforcement authorities about the alleged thefts.
        {¶ 193} As Osie recognizes, we have squarely held just the opposite. In
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, we
held:


        R.C. 2929.04(A)(8) does not require that a criminal action be
        pending when the defendant kills the victim-witness. Indeed, we
        have previously upheld application of the witness-murder
        specification in situations where no criminal proceeding had been
        initiated at the time the victim was murdered. * * * The plain
        language of the statute requires only (1) that the victim was a




                                        52
                                   January Term, 2014




        witness to an offense and (2) that the purpose of killing the victim
        was to prevent the victim from testifying in a criminal proceeding.


Id. at ¶ 55. However, Osie urges us to reexamine Conway in light of our later
decision in State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d
614, in which we construed a different statute that defines a different offense.
        {¶ 194} Malone holds that “a conviction for intimidation of a witness
under R.C. 2921.04(B) is not sustainable when the intimidation occurred after
the criminal act but prior to any proceedings flowing from the criminal act in a
court of justice.” Id. at ¶ 10.
        {¶ 195} We cannot agree with Osie that Malone has any application to
this case. Former R.C. 2921.04(B), the witness-intimidation statute construed in
Malone, stated:


                No person, knowingly and by force or unlawful threat of
        harm to any person or property, shall attempt to influence,
        intimidate, or hinder the victim of a crime in the filing or
        prosecution of criminal charges or an attorney or witness involved
        in a criminal action or proceeding in the discharge of the duties of
        the attorney or witness.


(Emphasis added.) 146 Ohio Laws, Part I, 528. The defendant in Malone was
prosecuted under the provision covering threats to a “witness involved in a
criminal action or proceeding.” Therefore, “[t]he question [was] whether [the
witness] was ‘involved in a criminal action or proceeding’ at the time the threat
was made.” Id. at ¶ 14.
        {¶ 196} We relied on the specific language of R.C. 2921.04(B) to support
our holding in Malone.        Crucial to our construction of “criminal action or




                                           53
                               SUPREME COURT OF OHIO




proceeding” in that case was the statute’s requirement that the witness be
“involved in” such an action or proceeding.         R.C. 2921.04(B) “requires a
witness’s involvement in a criminal action or proceeding, not his or her potential
involvement.” (Emphasis added.) Id., 121 Ohio St.3d 244, 2009-Ohio-310, 903
N.E.2d 614, at ¶ 21. “The statute simply does not apply to witnesses or attorneys
who might become involved in a criminal action or proceeding. It applies only to
witnesses and attorneys who are involved in a criminal action or proceeding.”
(Emphasis sic.) Id. at ¶ 25.
         {¶ 197} Malone’s construction of R.C. 2921.04(B) provides no basis for
overruling Conway’s construction of R.C. 2929.04(A)(8).              Unlike R.C.
2921.04(B), R.C. 2929.04(A)(8) is not limited to a witness who is “involved in” a
criminal proceeding. Rather, R.C. 2929.04(A)(8) speaks of “a witness to an
offense who was purposely killed to prevent the victim’s testimony in any
criminal proceeding.” (Emphasis added.) The language “to prevent” indicates
that the defendant’s motive is to affect a future proceeding. Moreover, R.C.
2929.04(A)(8) uses the broad, inclusive term “any” criminal proceeding.
Consequently, 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.
         {¶ 198} Osie further contends that even if we reject his proposed
reinterpretation of the R.C. 2929.04(A)(8) witness-murder specification, the
evidence supporting that specification was still insufficient to convict him of it.
He claims: “There is simply no evidence that Osie intended to kill Williams to
prevent his testimony at a later trial.”
         {¶ 199} But the term “testimony in any criminal proceeding” is not
limited to trial testimony. In State v. Filiaggi, 86 Ohio St.3d 230, 248, 714 Ohio
St.3d 867 (1999), we interpreted the term “testimony in any criminal
proceeding” to include the filing of a complaint accusing another of a criminal




                                           54
                                     January Term, 2014




offense. See also State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826
N.E.2d 266, ¶ 53-55.
        {¶ 200} Nicholas Wiskur testified that in a phone conversation on
February 13, Williams told Osie that he intended to file charges with respect to
the missing money. Wiskur further testified that the conversation became heated
on both sides, indicating that Osie was angry with Williams. Osie admitted in
his confession that he went to Williams’s house to discuss the matter with him.
Osie told the Butler County detectives that Williams had said that he was going
to press charges against Patterson for stealing from him. Additionally, he told
his cellmate that Williams had expressed his intention to press charges against
Osie himself. These statements by Williams precipitated the quarrel that ended
with Osie stabbing Williams to death. From this evidence, the trier of fact could
reasonably infer that when Osie stabbed Williams, he did so with the purpose of
preventing Williams from filing charges against Osie and/or Patterson.9
        {¶ 201} Osie contends that Williams’s murder stemmed from “an
argument between the two men that got out of hand.” But the very subject of
that argument was Williams’s intention to file charges. That hardly precludes
the inference that Osie’s purpose in stabbing Williams was to keep him from
filing charges.
        {¶ 202} Osie’s texts to Patterson corroborate his purpose of preventing
Williams from filing charges against Patterson.                At 3:07 a.m., Osie texted
Patterson: “Baby doll your dirt is ready to be over.” At 4:24 a.m., he texted her:
“Job finished.”




9
  R.C. 2929.04(A)(8) does not require that prevention of testimony or retaliation for testimony be
the only reason for the murder. See Filiaggi, 86 Ohio St.3d at 248, 714 N.E.2d 867 (“The law
does not require [the filing of the complaint] to be the sole reason”).




                                               55
                                 SUPREME COURT OF OHIO




        {¶ 203} The state’s evidence was legally sufficient to prove Osie’s guilt
of the R.C. 2929.04(A)(8) specification. We overrule Osie’s third proposition of
law.
                              Robbery-Murder Specification
        {¶ 204} In his 11th proposition of law, Osie argues that the evidence was
insufficient to prove the R.C. 2929.04(A)(7) felony-murder specification
predicated on aggravated robbery. According to Osie, the state failed to prove an
aggravated robbery took place, because the trial court found in its sentencing
opinion that the theft of Williams’s property was an afterthought.10
        {¶ 205} Because aggravated robbery requires that the defendant inflict
serious physical harm “in * * * committing a theft offense,” R.C. 2911.01(A)(3),
Osie contends that the intent to steal must coincide with the infliction of physical
harm on the victim. According to Osie, physical harm inflicted before the
formation of an intent to commit theft does not elevate a subsequent theft into an
aggravated robbery.
        {¶ 206} However, in State v. Smith, 61 Ohio St.3d 284, 574 N.E.2d 510
(1991), we rejected a similar argument under an earlier version of R.C. 2911.01.
In Smith, the defendant argued that “the evidence fails to establish that his intent
to take [the victim’s] property or the actual taking of the property coincided with
his threat or use of force and hence he is not guilty of aggravated robbery.” Id. at
290. We rejected this argument and held that “the victim of a robbery, killed just
prior to the robber’s carrying off her property, is nonetheless the victim of an
aggravated robbery.” Id.
        {¶ 207} Osie also argues that he is not guilty of the aggravated-robbery
death specification under R.C. 2929.04(A)(7), because the murder was not
committed “while” committing a robbery or fleeing afterward. But it is well

10
   The sentencing opinion stated that the aggravated robbery “was more related to the cover-up, in
terms of trying to make the murder look like a burglary gone awry.”




                                               56
                               January Term, 2014




settled that the R.C. 2929.04(A)(7) specification does not require that the killing
occur at the same instant as the underlying felony, that the killing be caused by
the underlying felony, State v. Cooey, 46 Ohio St.3d 20, 23, 544 N.E.2d 805
(1989), or that the intent to commit the underlying felony precede the murder,
State v. Williams, 74 Ohio St.3d 569, 660 N.E.2d 724 (1996), paragraph one of
the syllabus. All that is required is that the killing must be directly associated
with the underlying felony as part of one continuous occurrence.          State v.
Cooper, 52 Ohio St.2d 163, 179-180, 370 N.E.2d 725 (1977). Accordingly, we
overrule Osie’s 11th proposition of law.
                      D. Trial Panel’s Sentencing Opinion
       {¶ 208} In his fifth proposition of law, Osie contends that the three-judge
panel’s sentencing opinion is flawed.
       {¶ 209} First, he reiterates his claim that the panel should have merged
the burglary-murder and witness-murder specifications. As discussed above in
relation to Osie’s fourth proposition, this claim has merit. However, it can be
corrected by this court’s independent sentence review.
       {¶ 210} Second, he claims that the trial court failed to explain why the
aggravating circumstances outweighed the mitigating factors. “This claim lacks
merit because the opinion contains extensive discussion of the aggravating
circumstances and the mitigating factors.” State v. Davis, 116 Ohio St.3d 404,
2008-Ohio-2, 880 N.E.2d 31, ¶ 360. The opinion thoroughly discusses each
aggravating circumstance and mitigating factor and explains why the court
assigned each one the weight it did.            Therefore, “the opinion as a whole
adequately explains” why the aggravating circumstances outweighed the
mitigating factors. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 154.
       {¶ 211} Third, Osie argues that the trial court “improperly diminished”
his mitigating evidence—specifically, his drug use on the day before the




                                           57
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killing—by dismissing it as voluntary.        But we have repeatedly stated that
“[v]oluntary intoxication generally deserves little weight as a mitigating factor.”
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 305.
In any event, the “assessment and weight to be given mitigating evidence are
matters for the trial court's determination.” State v. Lott, 51 Ohio St.3d 160, 171,
555 N.E.2d 293 (1990).
       {¶ 212} Finally, Osie argues that the trial court gave excessive weight to
the witness-murder specification, turning it into a “ ‘super’ aggravating
circumstance” that carries what amounts to an automatic death sentence. The
panel wrote that the witness-murder specification was the “most compelling”
because


       [i]t represents a threat, an attack, not only upon the victim, but
       upon the criminal justice system itself. Defendant silenced Mr.
       Williams to subvert justice, to prevent Mr. Williams from lawfully
       seeking justice and redress in the Courts of this State.         This
       specification the panel gives its most weight, great weight.


We have similarly observed: “Murdering a witness to prevent his or her
testimony strikes at the heart of the criminal justice system.” State v. Keene, 81
Ohio St.3d 646, 671, 693 N.E.2d 246 (1998).
       {¶ 213} In State v. Jones, 91 Ohio St.3d 335, 744 N.E.2d 1163 (2001),
we rejected a similar argument: that a trial court had elevated the R.C.
2929.04(A)(6) specification for murder of a law-enforcement officer into a
super-aggravating circumstance that no mitigation could equal or outweigh. In
Jones, the trial court stated that killing a police officer who was trying to
apprehend a felon “strikes at the very heart of the justice system.” We observed:
“The trial court’s statement regarding the severity of killing a police officer was




                                         58
                                January Term, 2014




not improper.     Courts are certainly entitled to consider the gravity of the
aggravating circumstances.” Id. at 352.
       {¶ 214} No legal errors appear in the sentencing opinion. “Moreover, our
independent review of the sentence will cure any flaws in the trial court's
opinion.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,
¶ 298. Osie’s fifth proposition of law is overruled.
                             VII. Ineffective Assistance
       {¶ 215} In his 12th proposition of law, Osie claims that he received
ineffective assistance from his trial counsel. To establish ineffective assistance,
Osie must show (1) deficient performance by counsel, i.e., performance that fell
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that but for counsel’s errors, the proceeding’s result would
have been different. Strickland v. Washington, 466 U.S. at 687-688 and 694, 104
S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), paragraphs two and three of the syllabus.
       {¶ 216} Osie divides       his   ineffective-assistance claims      into   three
categories: those involving the pretrial stage of proceedings, those involving the
trial itself, and those involving the penalty phase. We note that Osie presents
these claims in almost completely conclusory terms, with little or no specific
explanation of why trial counsel’s acts and omissions fall below an objective
standard of reasonable representation and how they were prejudicial. With that
preliminary observation, we turn to Osie’s individual claims of ineffective
assistance
                                        Pretrial
       {¶ 217} The defense filed a motion to appropriate funds for an
investigator, which the trial court granted. Osie asserts that defense counsel
nonetheless failed to hire an investigator. However, Osie does not explain what
factual basis, if any, he has for this assertion. He points to nothing in the record to




                                          59
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demonstrate that defense counsel failed to hire an investigator. In fact, defense
counsel referred during trial to an investigator, in such a way as to imply that they
had hired one. When the defense complained to the trial court about receiving
late disclosure of Donald Simpson’s felony record, defense co-counsel said that
had counsel known about Simpson’s record sooner, “we certainly would have
given the name or * * * information to the private investigator to investigate any
further * * *.” Osie’s claim lacks support in the record.
       {¶ 218} Osie contends that the defense should have filed a motion to
suppress the “attorney work product” seized from Osie’s cell. As discussed in
reference to Osie’s seventh proposition of law, the only alleged work product
admitted into evidence at trial was State’s Exhibit 64, Osie’s letters to Patterson,
which were neither confidential nor “attorney work product.”
       {¶ 219} Osie contends that the defense should have objected to the
admission of Osie’s confession on the grounds that the police did not record the
entire interview. This claim fails because, as discussed in relation to Osie’s 18th
proposition of law, it rests on a novel theory unsupported by existing Ohio law.
“It is not ineffective assistance for a trial lawyer to maneuver within the existing
law, declining to present untested * * * legal theories.” State v. McNeill, 83 Ohio
St.3d 438, 449, 700 N.E.2d 596 (1998). See also Ledbetter v. Commr. of Corr.,
275 Conn. 451, 461-462, 880 A.2d 160 (2005) (collecting cases).
       {¶ 220} Osie contends that the defense should have requested a
competency evaluation. The test for competence to stand trial is whether “the
defendant is incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the defendant’s defense.”
R.C. 2945.37(G).
       {¶ 221} Osie contends that an evaluation was called for because he
“demonstrated a disjointed understanding of the proceedings and discovery
revealed unhealthy personal relationships.”      But Osie supports his claim of




                                         60
                               January Term, 2014




“disjointed understanding” only by unexplained citations to the transcript. Osie
does not explain how these citations demonstrate that he was unable to understand
the proceedings.
        {¶ 222} Osie supports his claim of “unhealthy personal relationships” by
referring to State’s Exhibit 64, his letters to Patterson. The letters arguably do
exhibit unhealthy relationships, but nothing in them suggests that Osie lacked the
ability to understand the proceedings or assist in his own defense.
        {¶ 223} Osie complains that defense counsel “[f]ailed to retain a proper
mitigation specialist.” But hiring a mitigation specialist is not a requirement of
effective assistance. State v. McGuire, 80 Ohio St.3d 390, 399, 686 N.E.2d 1112
(1997). Nor does Osie explain why Pagan, whose services Osie’s defense counsel
had used before, was not a “proper mitigation specialist.” Therefore, he fails to
demonstrate either deficient performance or prejudice.
        {¶ 224} Osie contends that defense counsel “[f]ailed to ensure that the
three-judge panel was created in accordance with R.C. § 2945.06.” This claim
fails because, as discussed with regard to Osie’s ninth proposition of law, the
panel was created in accordance with R.C. 2945.06.
        {¶ 225} Osie contends that defense counsel “[f]ailed to ensure that Osie
had a proper understanding of the jury waiver and its subsequent consequences.”
To the contrary, as discussed in connection with Osie’s tenth proposition, the
record demonstrates that Osie did have a sufficient understanding of his right to a
jury trial to waive it.
                                       Trial
        {¶ 226} Osie contends that defense counsel should have asked the trial
court to seal witness statements for appellate review. He cites no authority for the
proposition that such an omission constitutes ineffective assistance of counsel.
Moreover, he offers no analysis to explain why the statements should have been
sealed or how the claimed omission meets the Strickland criteria of deficient




                                         61
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performance and prejudice.      Hence, he fails to carry his burden of showing
ineffective assistance with respect to this claim.
       {¶ 227} Osie contends that his counsel failed to object to numerous
instances of prosecutorial misconduct. Osie cross-references his 14th proposition
of law, which challenges two instances of alleged misconduct in the guilt phase:
delayed disclosure of alleged Brady material and the seizure and admission of
attorney work product.      But, as discussed earlier in connection with Osie’s
seventh proposition, Osie’s letters to Patterson were not shown to be attorney
work product.     And, as discussed earlier in connection with Osie’s eighth
proposition, he has made no showing that the delayed disclosure of the alleged
Brady material was prejudicial.
                                     Mitigation
       {¶ 228} Defense counsel’s mitigation evidence consisted of testimony by
Osie’s family (his mother, brother, and son) and two longtime friends, who
testified about his childhood, his reaction to his father’s death, and his drug habit.
Osie contends that counsel should have conducted a more thorough investigation
and presented more evidence about Osie’s “background, education, mental and
emotional stability [and] family relations,” as well as expert testimony to explain
the effects of cocaine on Osie’s behavior.
       {¶ 229} However, the record before us does not show what investigations
Osie’s counsel did or did not conduct. Nor does it show what further information
counsel could have introduced about Osie’s background, education, stability, or
family relations. Osie cannot show either deficient performance or prejudice.
       {¶ 230} Osie further contends that his counsel failed to ensure that Osie
was afforded his right to allocution. However, as we explain in discussing Osie’s
first proposition of law, Osie was in fact permitted to make a statement to the trial
court before finally being sentenced. He therefore received all that Crim.R.
32(A)(1) entitled him to. Moreover, Osie makes no attempt to show that there is a




                                          62
                                January Term, 2014




reasonable probability that the result of the sentencing would have been
otherwise—i.e., that he would have avoided a death sentence—had counsel taken
action to secure Osie’s right to allocution.
       {¶ 231} Finally, Osie claims that his counsel failed to object to “numerous
instances” of penalty-phase prosecutorial misconduct.          Again, Osie cross-
references his 14th proposition of law, which identifies three instances of claimed
misconduct in the penalty-phase closing argument. As discussed in the section
dealing with that proposition, none of these claims have merit.
       {¶ 232} Osie fails to show how any of his ineffective-assistance claims
fulfill the Strickland criteria of deficient performance and prejudice. Accordingly,
his 12th proposition of law is overruled.
                                 VIII. Settled Issues
               A. Constitutionality of Felony-Murder Specification
       {¶ 233} In his 13th proposition of law, Osie claims that the felony-murder
specification defined in R.C. 2929.04(A)(7) unconstitutionally fails to narrow the
class of offenders sentenced to death, because it duplicates the elements of felony-
murder, R.C. 2929.03.01(B). We have repeatedly rejected such claims. See., e.g.,
State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 185; State
v. Henderson, 39 Ohio St.3d 24, 28-29, 528 N.E.2d 1237 (1988). See also
Williams v. Taylor, 529 U.S. 362, 392, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000),
fn. 16, citing Lowenfield v. Phelps, 484 U.S. 231, 108 N.E.2d 546, 98 L.Ed.2d
568 (1988). Osie’s 13th proposition is overruled.
                       B. Constitutionality of Death Penalty
       {¶ 234} In his 19th proposition of law, Osie claims that the death penalty
and Ohio’s statutory provisions for its administration are unconstitutional and
violate international law. We have repeatedly rejected each of Osie’s claims, and
we overrule them summarily today. See generally State v. Spisak, 36 Ohio St.3d
80, 82, 521 N.E.2d 800 (1988) (summarily overruling propositions of law raising




                                            63
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long-settled legal arguments); State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d
568, (1988), syllabus (approving summary disposition of settled issues in capital
cases).
          {¶ 235} Osie contends that Ohio’s death-penalty scheme is arbitrary and
administered in a racially discriminatory manner.          We have rejected both
arguments. See Jenkins, 15 Ohio St.3d at 168-169, 473 N.E.2d 264; State v.
Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 103 (Ohio’s
statutory scheme is not racially discriminatory), citing State v. Steffen, 31 Ohio
St.3d 111, 124-125, 509 N.E.2d 383 (1987); State v. Zuern, 32 Ohio St.3d 56, 64-
66, 512 N.E.2d 585 (1987) (same); State v. Short, 129 Ohio St.3d 360, 2011-
Ohio-3641, 952 N.E.2d 1121, ¶ 139.
          {¶ 236} Osie contends that Ohio’s death-penalty procedures are
unreliable. This claim has been rejected. See Jenkins at 172-173; State v. Stumpf,
32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987). He further argues that Ohio's
statutes unconstitutionally fail to provide individualized sentencing because they
require proof of aggravating circumstances in the guilt phase. This claim, too, has
been rejected. See Henderson, 39 Ohio St.3d at 28-29, 528 N.E.2d 1237; Jenkins
at 178.
          {¶ 237} Osie argues that Ohio's death-penalty scheme impermissibly
burdens a capital defendant’s right to a jury trial. This claim lacks merit. See
State v. Buell, 22 Ohio St.3d 124, 138, 489 N.E.2d 795 (1986), citing State v.
Nabozny, 54 Ohio St.2d 195, 375 N.E.2d 784 (1978), paragraph one of the
syllabus, overruled on other grounds, 439 U.S. 811, 99 S.Ct. 70, 58 L.Ed.2d 103
(1978).
          {¶ 238} Osie argues that R.C. 2929.03(D)(1) is unconstitutional because it
provides that if the defendant requests a presentence investigation or a court-
ordered mental evaluation, the reports generated thereby must be provided to the




                                          64
                                January Term, 2014




jury or the panel. We have rejected this argument. See State v. Esparza, 39 Ohio
St.3d 8, 10, 529 N.E.2d 192 (1988); Buell at 138.
       {¶ 239} Osie again argues that R.C. 2929.04(A)(7) is unconstitutional
because it repeats the definition of felony-murder set forth in R.C. 2903.01(B).
This claim mirrors Osie’s 13th proposition of law, which we have already
rejected.
       {¶ 240} Osie   argues    that   R.C.     2929.03(D)(1)    and   2929.04   are
unconstitutionally vague because they give the sentencer unfettered discretion to
weigh the nature and circumstances of the offense as an aggravating
circumstance. Osie’s claim is incorrect. See State v. McNeill, 83 Ohio St.3d at
453, 700 N.E.2d 596, citing Tuilaepa v. California, 512 U.S. 967, 973-980, 114
S.Ct. 2630, 129 L.Ed.2d 750 (1994).
       {¶ 241} Osie   argues    that   Ohio's    death-penalty   scheme    provides
constitutionally inadequate appellate review of the proportionality and
appropriateness of the death sentence. We reject this claim. See Steffen, 31 Ohio
St.3d 111, 509 N.E.2d 383, paragraph one of the syllabus; State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23.
       {¶ 242} Osie contends that the death penalty violates various aspects of
international law. He contends that Ohio imposes the death penalty in a racially
discriminatory manner and thereby violates the Convention on Racial
Discrimination. We rejected that claim in Short, 129 Ohio St.3d 360, 2011-Ohio-
3641, 952 N.E.2d 1121, ¶ 137. Osie’s other international-law claims were also
rejected in Short. Id. at ¶ 138 (rejecting claims under International Covenant on
Civil and Political Rights, United Nations Convention against Torture, and
customary international law).
       {¶ 243} Osie’s 19th proposition of law is overruled.




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                            IX. Independent Sentence Review
        {¶ 244} Under R.C. 2929.05(A), this court must independently review
Osie’s death sentence. We may affirm a death sentence “only if * * * persuaded
from the record that the aggravating circumstances the offender was found guilty
of committing outweigh the mitigating factors present in the case and that the
sentence of death is the appropriate sentence in the case.” Id. We must also
determine whether the evidence supports the panel’s finding of aggravating
circumstances and whether the death sentence is proportionate to those imposed
in similar cases. Id.
        {¶ 245} In his sixth proposition of law, Osie contends that on independent
review, we should find that the aggravating circumstances do not outweigh the
mitigating factors beyond a reasonable doubt.
                                Aggravating Circumstances
        {¶ 246} Osie was convicted of three aggravating circumstances: witness-
murder, R.C 2929.04(A)(8), felony-murder predicated on aggravated burglary,
R.C. 2929.04(A)(7), and felony-murder predicated on aggravated robbery, R.C.
2929.04(A)(7). As discussed in connection with Osie’s fourth proposition of law,
the aggravated-burglary specification and the witness-murder specification merge,
leaving only two specifications.           We find that the evidence supports Osie’s
convictions of the aggravated-robbery and witness-murder specifications.
               Mitigating Factors: History, Character, and Background
        {¶ 247} Osie was 48 years old in 2010, when the trial took place. He grew
up in a two-parent family with four siblings in the Camp Washington
neighborhood of Cincinnati. Camp Washington was a former industrial area.
According to some of Osie’s mitigation witnesses, it had become a “tough” or
                                                                                               11
“very bad” neighborhood by the 1960s, when Osie was growing up there.

11
  On the other hand, while Osie’s brother Kenneth described Camp Washington as a troubled
neighborhood, he nonetheless called it “a good place to grow up.” Osie’s mother testified that the




                                               66
                                  January Term, 2014




Many of its children lacked two parents, failed to finish school, or got into trouble
with the law.
        {¶ 248} Despite the surroundings, it appears that Osie had a good
upbringing. His younger brother Kenneth testified that “[t]here was a lot of
trouble” in the neighborhood when they were growing up there, but “we [the Osie
children] stayed away from that,” thanks to having two strict and caring parents
who instilled good values in their children. Family friend Paul Rudemiller also
testified that Osie had stayed out of trouble as a youth; unlike many other children
in the neighborhood, Osie “led a life that kept him away from the court system.”
        {¶ 249} Jim Egbert had been the pastor of a church in Camp Washington
for 28 years. His was a “mission church” engaged in “community ministry” and
“outreach.”     He testified that the entire Osie family had volunteered in the
church's community programs, even though they did not belong to Egbert’s
church. Osie had been a “willing participant,” although Egbert was unable to
recall any specific activities that Osie had participated in.
        {¶ 250} Osie played softball, baseball, basketball, and football and
participated in the Cub Scouts. He organized and raised money for an adult
softball team and volunteered for a summertime neighborhood-cleanup program.
After graduating from high school, he took a job in a meatpacking plant, married,
and had two children. He and his wife were separated for several years, but
reunited when Osie’s son Brian was in the eighth grade.
        {¶ 251} Paul Rudemiller was the longtime president and executive
director of the Camp Washington Community Board, Inc., a nonprofit tax-exempt
corporation     established    for    community       organizing     and    neighborhood
improvement. He was a friend of Osie’s mother, who was “secretary and/or
treasurer” of the Camp Washington Community Board.

neighborhood contained “some rough hooligans” and “started going down” after the Osies moved
there, but that it remained “a nice neighborhood” with “some very nice people.”




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                            SUPREME COURT OF OHIO




       {¶ 252} Rudemiller described Osie as “a decent kid” who graduated from
high school, went to church, got a job, and got married. He believed that Osie
“has many good parts” based on “the good things he has done in the 50 years
[Rudemiller has] known him.” Ten to 15 years earlier, when Osie separated from
his wife, the community board had rented an apartment to him. “[H]e was a good
tenant and probably one of the cleanest tenants we had,” Rudemiller testified.
       {¶ 253} Rudemiller knew that Osie drank and testified that Osie had had
“one or two offenses involving excessive drinking,” but he had never known Osie
to have a drug problem. Rudemiller had last seen Osie at the funeral of Osie’s
father, which took place in 2006.
       {¶ 254} Osie’s 22-year-old son, Brian, was a college student. He testified
that Osie had been an attentive parent. During Osie’s first separation from his
wife, Osie saw Brian every other weekend. When Brian was in the eighth grade,
Osie and his wife reunited. In high school, Brian played baseball, and Osie
attended his games regularly and coached him in a summer league.
       {¶ 255} In 2006, Osie finally broke up with his wife, and Brian testified
that Osie’s behavior changed markedly after that. Osie began staying out all
night, using drugs, and stealing from his mother.
       {¶ 256} Osie's mother, Patricia, testified that Osie was a very well-
behaved child, raised to be a “good, decent” person.” As an adult, Osie used to
visit his mother once a week. However, around 2007, Patricia began to notice
changes in Osie. He lost his job around this time. He visited less often; when he
did visit, he wanted to borrow money, something he had not done when
employed.
       {¶ 257} Sometime in 2008 or 2009, Osie called his mother to ask for
money to make a payment on his truck. Osie, his mother, and someone she
identified only as “the lady from the truck company” were on a three-way
conference call, during which Osie's mother revealed her checking-account




                                        68
                                January Term, 2014




number. After this happened, Patricia found that someone was withdrawing
money from her account without her knowledge.
       {¶ 258} Nevertheless, Patricia testified, she still loved her son, and it was
important to her to maintain contact with him. She testified that she visited Osie
every two weeks at the jail and intended to visit him in prison if he received a life
sentence.
                               Sentence Evaluation
       {¶ 259} Based upon the foregoing evidence, and upon the record of the
guilt phase, Osie argues that the following mitigating factors exist:
       {¶ 260} 1. Over most of his lifetime, he had been a productive member of
society and an asset to his family and community. The evidence supports the
existence of this factor.   Osie was gainfully employed from his high school
graduation until he lost his job in 2007. Along with his family, he took part to
some degree in efforts to improve the Camp Washington neighborhood. His son
Brian testified that he was a loving and involved father. These matters are all
entitled to some weight in mitigation. See State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, ¶ 263 (testimony that defendant was a loving,
supportive father entitled to weight); State v. Fox, 69 Ohio St.3d 183, 194, 631
N.E.2d 124 (1994) (steady employment since high school and favorable
community reputation entitled to weight).
       {¶ 261} 2. He “suffered a number of setbacks,” particularly his father’s
death and his divorce, that caused his behavior to change. This is entitled to some
weight as well.
       {¶ 262} 3. He retains the love and support of his family. This is also
entitled to some weight. See, e.g., State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-
5677, 984 N.E.2d 948, ¶ 263.
       {¶ 263} 4. He had a drug habit, and alcohol and cocaine played a role in
the murder. But “[v]oluntary intoxication is at most a weak mitigating factor,




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entitled to little weight.” Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810
N.E.2d 927, ¶ 111 (citing cases); see also Turner, 105 Ohio St.3d 331, 2005-
Ohio-1938, 826 N.E.2d 266, ¶ 93.
         {¶ 264} 5. He lacks a significant history of criminal convictions and
delinquency adjudications. See R.C. 2929.04(B)(5). However, the defense has
the burden of establishing the existence of mitigating factors, including the (B)(5)
factor, and Osie did not place his criminal record, or lack thereof, in evidence.
See Jenkins, 15 Ohio St.3d at 171, 473 N.E.2d 264. The only evidence on that
subject came from Paul Rudemiller, who testified that Osie “had one or two
offenses involving excessive drinking.”12
         {¶ 265} 6. He confessed and cooperated with the police after his arrest.
“A defendant's confession and cooperation with law enforcement are mitigating
factors.” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150,
¶ 191. But the mitigating value of this factor is reduced by the fact that Osie
repeatedly lied to the detectives questioning him. See State v. Perez, 124 Ohio
St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 247 (citing cases).
         {¶ 266} 7. His infatuation with Patterson and his “misplaced” desire to
protect her played a significant role in the murder. The record does indeed
suggest that Osie was motivated, at least in part, by a desire to protect Patterson.13



12
  The trial court’s file, we note, contains a discovery response filed by the state, summarizing
Osie’s “known criminal record” as follows:

         1. Reckless Operation (2008 – Reduced DUI)
         2. Domestic Violence (2008 – Dismissed)
         3. DUI (2009)

But this information was not placed in evidence, nor does Osie cite it to support his contention that
the R.C. 2929.04(B)(5) factor exists.
13
  Osie states in his brief that Patterson “had significant influence over the decisions [he] made,”
but cites nothing in the record to support this claim.




                                                 70
                                 January Term, 2014




          {¶ 267} Yet Osie’s motives were far from wholly unselfish: Osie himself
was potentially a target of a criminal complaint by Williams. The forged check
was made out to him, and he cashed it. Moreover, according to the account of the
murder Osie gave to his cellmate Simpson, the encounter between Osie and his
victim “got heated” only when Williams threatened to file charges against Osie.
It was at that point that Osie assaulted Williams. We find this factor entitled to
little weight.
          {¶ 268} 8. The murder “was the result of an argument that got out of
control.”    According to Osie’s confession and his statement to Simpson, he
attacked Williams after they began to quarrel. However, Osie’s repeated efforts
to falsely shift blame to Williams throughout his confession cast doubt upon this
claim, and we afford it little weight.
          {¶ 269} Our independent review of the record discloses no further
mitigating factors, either in the nature and circumstances of the offense or in the
history, character, and background of the offender.
          {¶ 270} Having independently weighed the aggravating circumstances
against the mitigating factors, we find that the two aggravating circumstances of
robbery-murder and witness-murder outweigh the mitigating factors present in
this case beyond a reasonable doubt. “In particular, the R.C. 2929.04(A)(8)
witness-murder specification is entitled to great weight, for it ‘strikes at the heart
of the criminal justice system.’ ” Turner, 105 Ohio St.3d 331, 2005-Ohio-1938,
826 N.E.2d 266, ¶ 100, quoting State v. Jalowiec, 91 Ohio St.3d 220, 239, 744
N.E.2d 163 (2001).
                                   Proportionality
          {¶ 271} We have 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.” Turner at ¶ 101 (citing
cases).




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                              SUPREME COURT OF OHIO




                                     Conclusion
       {¶ 272} We conclude that the aggravating circumstances outweigh the
mitigating factors in this case beyond a reasonable doubt and that the death
sentence in this case is appropriate and proportionate. Accordingly, we affirm
Osie’s convictions and sentence of death.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER and O’DONNELL, JJ., concur.
       LANZINGER and FRENCH, JJ., concur in part and dissent in part.
       O’NEILL, J., dissents.
                                ____________________
       LANZINGER, J., concurring in part and dissenting in part.
       {¶ 273} While I concur that the state proved the felony-murder
specifications beyond a reasonable doubt, I would hold that the state did not
present sufficient evidence to convict Gregory Osie of the R.C. 2929.04(A)(8)
specification.
                 The R.C. 2929.04(A)(8) Witness-Murder Specification
       {¶ 274} The United States Supreme Court has stated that the underlying
principle in capital cases is that the death penalty is reserved for a narrow
category of crimes and offenders. Roper v. Simmons, 543 U.S. 551, 568-569, 125
S.Ct. 1183, 161 L.Ed.2d 1 (2005).        Ohio’s statute reflects this principle by
allowing a death sentence only if the state proves beyond a reasonable doubt all
elements of a specification charging an aggravating circumstance.             R.C.
2924.04(A) sets forth ten categories of aggravating circumstances that, if proven
beyond a reasonable doubt, make an offender eligible for the death penalty.
       {¶ 275} One of the categories is R.C. 2929.04(A)(8), defining the witness-
murder specification:




                                         72
                               January Term, 2014




               The victim of the aggravated murder was a witness to an
       offense who was purposely killed to prevent the victim’s testimony
       in any criminal proceeding and the aggravated murder was not
       committed during the commission, attempted commission, or flight
       immediately after the commission or attempted commission of the
       offense to which the victim was a witness, or the victim of the
       aggravated murder was a witness to an offense and was purposely
       killed in retaliation for the victim’s testimony in any criminal
       proceeding.


(Emphasis added.)
       {¶ 276} I cannot find that this specification was proven beyond a
reasonable doubt in the case before us. The cases that the majority cites to uphold
Osie’s R.C. 2929.04(A)(8) conviction were cases decided before State v. Malone,
121 Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d 614. In Malone, we interpreted
the meaning of the statutory phrase “a criminal action or proceeding” as that term
was used in a former version of the witness-intimidation statute, R.C. 2901.04(B).
146 Ohio Laws, Part I, 528. Although the witness-murder specification is in a
different statute, the same analysis should be used here to understand the meaning
of the words “criminal proceeding.”
                         The Analysis in State v. Malone
       {¶ 277} Malone was charged with a violation of former R.C. 2921.04(B)
as a result of making threats to a woman who had witnessed his rape of another
woman. Malone did not turn on whether the victim intended to file a complaint
and was prevented from filing it.
       {¶ 278} Former R.C. 2921.04(B) stated:




                                        73
                             SUPREME COURT OF OHIO




            No person, knowingly and by force or by unlawful threat of
       harm to any person or property, shall attempt to influence,
       intimidate, or hinder the victim of a crime in the filing or
       prosecution of criminal charges or an attorney or witness involved
       in a criminal action or proceeding in the discharge of the duties of
       the attorney or witness.


(Emphasis added.)
       {¶ 279} We recognized a conflict on the following certified question:


             Is a conviction for intimidation of a witness under R.C.
       2921.04(B), which requires the witness to be involved in a criminal
       action or proceeding, sustainable where the intimidation occurred
       after the criminal act but prior to any police investigation of the
       criminal act, and thus, also prior to any proceedings flowing from
       the criminal act in a court of justice?


State v. Malone, 116 Ohio St.3d 1472, 2008-Ohio-153, 879 N.E.2d 781. We held
that such a conviction was not sustainable. 121 Ohio St.3d 244, 2009-Ohio-310,
903 N.E.2d 614, at ¶ 10.
       {¶ 280} We began our analysis in Malone by citing the rule of lenity.
R.C. 2901.04(A) states that “sections of the Revised Code defining offenses or
penalties shall be strictly construed against the state, and liberally construed in
favor of the accused.” Because the term “criminal action or proceeding” was
undefined in the statute, we interpreted the term to mean “a formal process
involving a court.” Id. at ¶ 18. We defined the term “proceeding” as “ ‘the
“[r]egular and orderly progress in form of law, including all possible steps in an
action from its commencement to the execution of judgment. ” [Black’s Law




                                         74
                               January Term, 2014




Dictionary 1204 (6th Ed.Rev.1990)].’ ”        Id. at ¶ 16, quoting State ex rel.
Steckman v. Jackson, 70 Ohio St.3d 420, 432, 639 N.E.2d 83 (1994).             We
concluded that because Malone made his threat before a criminal complaint had
been made, a liberal construction in his favor meant that the statute could not
apply. The Malone holding was reaffirmed in State v. Davis, 132 Ohio St.3d 25,
2012-Ohio-1654, 968 N.E.2d 466.
       {¶ 281} We recently said in State v. Maxwell, 139 Ohio St.3d 12, 2014-
Ohio-1019, 9 N.E.3d 930, ¶ 162:


              R.C. 2929.04(A)(8) does not require that a criminal action
       be pending when the defendant kills the witness. Indeed, a
       defendant can be charged with the witness-murder specification in
       situations in which no criminal proceeding has been initiated at the
       time the victim was murdered. State v. Conway, 109 Ohio St.3d
       412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 55. The statute requires
       only (1) that the victim was a witness to an offense and (2) that the
       purpose of killing the witness was to prevent the victim from
       testifying in a criminal proceeding. Id.


Maxwell, however, turned on the fact that the witness had given grand-jury
testimony and was killed in retaliation. We did not analyze the import of the
words “criminal proceeding” in light of our discussions in Malone and Davis.
       {¶ 282} In this case, there was no evidence that Osie murdered Williams
in retaliation for testimony Williams had already given, and thus, the question is
whether Williams was a “witness to an offense who was purposely killed to
prevent the victim’s testimony in any criminal proceeding.”          The evidence
showed beyond a reasonable doubt that Williams intended to press charges
against both Osie and Patterson and that he was killed to prevent his filing a




                                        75
                                 SUPREME COURT OF OHIO




complaint with the police. Indeed, the majority opinion focuses on this point
alone, stating that “[t]o prove this specification, the state had to prove that Osie
killed Williams for the purpose of preventing him from filing a criminal charge.”
Majority opinion at ¶ 121. That, however, is not what the statute says.
        {¶ 283} R.C. 2929.04(A)(8) does not mention that an offender must
purposely kill to prevent either the filing of a complaint or the initiation of
criminal charges, which the evidence shows was the motivation for Osie’s
actions. Instead, the specification applies when the offender prevents the witness
from testifying in criminal proceedings.             The General Assembly could have
chosen to create a specification that included language similar to the witness-
intimidation statute, which brings within its scope “hinder[ing]” the victim of a
crime or delinquent act “in the filing or prosecution of criminal charges.” R.C.
2921.04(B)(1).14 It did not do so.




14
  It is noteworthy that after Malone was decided, the General Assembly enacted 2011 Sub.H.B.
No. 20, effective June 4, 2012, that clarified the scope of the intimidation statute by amending
subsection (B) and adding subsection (E):

                  (B) No person, knowingly and by force or by unlawful threat of harm
        to any person or property or by unlawful threat to commit any offense or
        calumny against any person, shall attempt to influence, intimidate, or hinder any
        of the following persons:
                  (1) The victim of a crime or delinquent act in the filing or prosecution
        of criminal charges or a delinquent child action or proceeding;
                  (2) A witness to a criminal or delinquent act by reason of the person
        being a witness to that act;
                  (3) An attorney by reason of the attorney's involvement in any criminal
        or delinquent child action or proceeding.
                  ***
                  (E) As used in this section, “witness” means any person who has or
        claims to have knowledge concerning a fact or facts concerning a criminal or
        delinquent act, whether or not criminal or delinquent child charges are actually
        filed.

(Emphasis added).




                                               76
                                January Term, 2014




                                     Conclusion
       {¶ 284} Osie was convicted of the R.C. 2929.04(A)(8) specification
because he attempted to prevent Williams from going to the police to file a
complaint. This is not proof of the specification within its stated terms.
       {¶ 285} I concur in the judgment insofar as it affirms Gregory Osie’s
convictions on Count One, aggravated murder with prior calculation and design,
and Count Two, felony-murder, as well as on the aggravating circumstances of
felony-murder in the commission of aggravated robbery and aggravated burglary
under R.C. 2929.04(A)(7) for each of those offenses. But I would vacate the
conviction of the aggravating circumstance under R.C. 2929.04(A)(8) for both
offenses and remand this case for resentencing.
          FRENCH, J., concurs in the foregoing opinion.
                             ____________________
       O’NEILL, J., dissenting.
       {¶ 286} In State v. Kirkland, Slip Opinion No. 2014-Ohio-1966, this court
affirmed a death sentence despite its acknowledgment that the defendant’s
penalty-phase hearing was unfair, based on its independent review of the
sentence. Id. at ¶ 98 and ¶ 141-168. I dissented, pointing out that the court’s
analysis and decision were in violation of Ring v. Arizona, 536 U.S. 584, 609, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002). See Kirkland at ¶ 201-204 (O’Neill, J.,
dissenting).
       {¶ 287} The court repeats that error today, holding that while the trial
court in this case failed to merge “duplicative [death] specifications,” majority
opinion at ¶ 189, this court’s independent sentence review can “cure” any error as
part of our “independent sentence review.” Id. I rejected this analysis in Kirkland
and I reject it again. It is illogical and unsupported by the law. I do not believe
that Osie’s choice to have his case heard by a three-judge panel resolves the issue.
If there is inarguable and prejudicial error in the imposition of a death sentence, it




                                         77
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should be elementary that a new sentencing is required. We do not engage in post
hoc justification of the result when reviewing prison sentences. See State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of
the syllabus (“Upon finding reversible error in the imposition of multiple
punishments for allied offenses, a court of appeals must reverse the judgment of
conviction and remand for a new sentencing hearing * * *” [emphasis added]).
This is a death sentence, and “good enough” is unacceptable.
       {¶ 288} At the bottom line, a sentence of death should never have been
imposed in this case. While acknowledging Osie’s contention that Williams’s
murder stemmed from an argument between the two men that got out of hand, the
majority suggests that because the “subject of that argument was Williams’s
intention to file charges,” it was proper to adopt “the inference that Osie’s purpose
in stabbing Williams was to keep him from filing charges.” Majority opinion at
¶ 201. It is true that the factfinder may rely upon an inference to conclude that
sufficient evidence of an offense has been presented. See State v. Jordan, 89
Ohio St.3d 488, 733 N.E.2d 601 (2000). But it is another thing altogether to
conclude that the very same “inference” is also sufficient to justify the imposition
of a death sentence.     The majority makes a quantum leap in reaching its
conclusion that inference outweighs all of the mitigating evidence presented by
the defendant beyond a reasonable doubt. This record simply does not provide
any support for that decision.
       {¶ 289} Defendant’s girlfriend was suspected of stealing approximately
$18,000 from her employer, David Williams. She was the office manager at a
struggling company and was thought to be using phony payroll checks to steal
money. One of the checks for $375 was made out to the defendant, and he
cashed it at a gas station in front of a video camera. The undisputed facts are that
on the night of the murder, the defendant went to Williams’s house to attempt to
persuade him not to report the thefts to the police. The state’s own jailhouse




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informant testified that defendant had told him that prior to going to Williams’s
house, he got high on cocaine and that defendant only went to Williams’s house
to “talk [Williams] out of pressing charges.” The conversation became heated,
and Williams indicated that the police would investigate the $375 check. When
questioned by the police, the defendant lied multiple times but ultimately
confessed to killing Williams. According to the informant, Donald Simpson Jr.:


               I guess it had turned into Greg trying to talk him out of
       pressing charges, and I—he had said the conversation had come up
       that he was going to press charges on Greg himself, because one of
       the checks had been wrote and cashed at a Marathon gas station
       there on Cincinnati-Dayton and Tylersville. It had been wrote to
       Greg himself, and I guess at that point, he said that the
       conversation had got heated and that he had punched Dave, and
       then it just happened that, I mean before he knew it, he had got the
       knife and stabbed him. He had stabbed him like four or five times
       in the chest, and that then when he was laying there, that he
       freaked out, and so he rushed down and took the knife and sliced
       his throat.


       {¶ 290} The defendant clearly deserves severe punishment—he admits he
killed another. But the question before the three-judge panel was whether the
motive behind the murder was to silence his girlfriend’s employer, who was
threatening to go to the police over her embezzlement of company funds. There
were only two witnesses to the fight that turned fatal: the decedent and the
defendant. And before the state of Ohio, in the name of its citizens, can take
another life, it must demonstrate beyond a reasonable doubt that the motive to
silence this witness was the driving force behind the fatal act. Other than the




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death, there is no direct evidence and precious little circumstantial evidence of
that intent. Accordingly, I would hold as a matter of law that the state has failed
in that endeavor. A reasonable interpretation of what happened here is that an
ugly confrontation turned into a physical altercation that ended up with one
person dying and another fleeing, and any basis for rejecting that interpretation
can only be inferred from the killing itself. As a result, the same inference that
provides the legal basis for convicting the defendant of aggravated murder also
provides the basis for the specification making the defendant eligible for death.
That is a legally insufficient process in a capital-murder case.
       {¶ 291} The undisputed evidence is that the defendant initially went to
Williams’s house to talk to him, not to kill him. To arrive at the majority’s
tortured conclusion, the specific purpose to kill a witness to prevent him from
testifying about a crime that has not yet even been reported to the police must be
inferred from circumstances surrounding the killing. Have we really arrived at
the point where we are willing to execute someone based upon an inference?
And are we now ready to simply ignore the perfectly reasonable contrary view of
the offense that the killing simply stemmed from an argument where the
defendant, high on cocaine, lost control of himself?
       {¶ 292} And ultimately, even if the answer to those questions is “yes,”
simple justice demands that a speculative finding of inferred specific purpose
cannot, standing alone, outweigh the mitigation evidence presented by the
defendant.    The evidence is undisputed that the defendant was a good,
productive, and law-abiding member of society for many years. He consistently
worked, volunteered for the benefit of the community, and raised two adult sons.
In his lifetime he has only one prior conviction, for OVI. His four siblings, his
sons and his mother all love him and want him to be part of their lives even if
he’s in prison.




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       {¶ 293} The roots of this crime stem from the virtually simultaneous
collapse of the defendant’s marriage and the death of his father. These two
events sent the defendant into a downward spiral that led to abuse of alcohol and
cocaine, embezzlement from his mother, and finally the horrible murder of
which he stands convicted. The defendant made good decisions for 45 years,
bad decisions for three years, and awful decisions for one night.
       {¶ 294} Given the undisputed evidence, our independent sentence review
cannot support the conclusion that death, rather than life in prison with or
without a chance of parole, is the appropriate sentence in this case. This is a case
of two men in a very contentious situation that got out of hand and that left one
of them dead. In weighing mitigation versus aggravation, I am persuaded by the
first 45 years of the defendant’s life, during which he kept a job, raised a family,
and put two kids through college. The defendant is not someone who kills his
mother-in-law and slashes his two children’s throats. See State v. Mammone,
Slip Opinion No. 2014-Ohio-1942, 2014 WL 1924815. The defendant is not
someone who rapes two teenagers and then sets their bodies on fire. See State v.
Kirkland, Slip Opinion No. 2014-Ohio-1966, 2014 WL 1924813.                No, the
defendant is a man who went down the wrong path, with a tragic ending for Mr.
Williams and his survivors.       Society gets no benefit from executing this
defendant, and his crimes are not the type of offenses that can even arguably
justify the imposition the punishment of death. I accordingly dissent.
                             ____________________
       Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A.
Oster Jr., Chief, Appellate Division, and Lina N. Alkamhawi, Assistant
Prosecuting Attorney, for appellee.




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       Timothy Young, Ohio Public Defender, Pamela Prude-Smithers, Chief
Counsel, Death Penalty Division, and Andrew King, Kelle Hinderer, and Robert
K. Lowe, Assistant Public Defenders, for appellant.
                         _________________________




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