             THE STATE OF OHIO, APPELLEE, v. SHEPPARD, APPELLANT.

              [Cite as State v. Sheppard (1998), ___ Ohio St.3d ___.]

Criminal law — Aggravated murder — Death penalty upheld, when.

(No. 97-1474 — Submitted September 15, 1998 — Decided December 30, 1998.)

        APPEAL from the Court of Appeals for Hamilton County, Nos. C-950402

                                  and C-950744.

      On August 27, 1994, Bobby T. Sheppard, defendant-appellant, was indicted

for the August 19, 1994 aggravated robbery and murder of fifty-six-year-old

Dennis Willhide.

      Willhide owned the C & D Drive-thru beverage store, located in Cincinnati.

On August 19, 1994, Willhide and an employee, Darren Cromwell, were working

at the store. Approximately one-half hour before closing time, appellant and his

fourteen-year-old accomplice, Antwan (Cory) Little, ran into the front entrance.

Appellant wore dark clothing and a dark mask and had a gun. Little wore a white

t-shirt pulled over his head. Little went to the cash register and tried to open it.

Appellant grabbed Willhide and forced him down to the floor by the cash register.

Little removed the money from the register then ran out the door. Appellant

remained a few seconds longer and fired a single gunshot to the back of Willhide’s

head. He, too, then ran out the exit door.

      In the meantime, Cromwell had escaped out the back door. He ran down the

street and tried to flag down some cars. He managed to stop a taxicab. He entered

the cab and asked the driver to call the police. The driver called his dispatcher and

drove Cromwell back to the drive-through. While in the cab, Cromwell heard one

gunshot and then saw appellant and Little run from the store.
      Cromwell went back into the drive-through. He walked behind the register

and saw Willhide lying face down on the floor. He ordered people out of the store

(several cars had entered while Cromwell was gone). Cromwell called the police.

      Police officer Daniel M. Nickum and his tracking dog, Luke, were

summoned to the scene. Luke was taken to the area where Cromwell had last

observed appellant and Little.      He picked up their scent and followed it to

appellant’s nearby house. Nickum contacted more police cars, and appellant and

Little were immediately arrested. The residence was secured, and a search warrant

was obtained.

      Inside appellant’s home, the police found $114 (three $20 bills, two $5 bills,

one $2 bill, and forty-one $1 bills) partly stuffed into a plastic bag and partly lying

loose on a kitchen closet floor.      In a bedroom near the kitchen, the police

uncovered a dark blue hooded sweatshirt and a black mask under a bed.

      The next day, with the assistance of Deangelo Graham, a fifteen-year-old

friend of appellant and Little, the police uncovered $390 in currency and a

chrome-plated .22 caliber semiautomatic pistol containing six bullets from a

neighbor’s bush next to appellant’s house.

      The gun was test-fired and found to be operable. An expert testified that a

cartridge casing found on the drive-through floor had been fired from this weapon.

In addition, it was determined that the bullet retrieved from Willhide’s brain was

consistent with the bullets test-fired from the gun.

      Appellant made several statements. Shortly after he was arrested and read

his Miranda rights, but before he was told the reason for the arrest, he announced

that he “didn’t do a robbery.” The second statement was made at the police

station. In this version, appellant explained that Little and he had gone to the

drive-through to purchase a forty-ounce bottle of beer. Willhide would not sell it



                                          2
to him because he was too young.         Willhide then pulled out “something.”

Appellant thought it might be a gun, so he shot Willhide once in the head as

Willhide turned away.

      Appellant changed his story when challenged by police. He gave an

accurate account of what had occurred as evidenced on the surveillance tape. In

his confession, he said that he “did not mean to shoot” Willhide and that he wasn’t

“in [his] right mind.” But appellant admitted that he shot Willhide because he did

not want Willhide to identify him. Appellant gave police $89, hidden in his shoe,

which he said was proceeds from the robbery. Thus, together with the $114 from

appellant’s kitchen and the $390 from the neighbor’s bush, the police recovered a

total of $593.

      The fifteen-year-old acquaintance, Deangelo Graham, related three

conversations that he had with appellant.      The first conversation took place

approximately two to three months before August 19. The second occurred just a

few days before the robbery and murder. The last conversation happened just

minutes before the tragedy. Appellant related his intent to rob the drive-through

and a BP station. Appellant wondered what it would feel like to shoot someone.

In the second conversation, appellant stated that he might have to kill the man if

he did not cooperate.     In the last conversation, appellant was convincing a

reluctant Little to go through with the plan. After the last conversation, Graham

saw appellant and Little walk into the store and saw appellant grab Willhide and

force him to the ground. Graham then walked away. Graham also described the

gun appellant had purchased just a few days before on the streets. The description

matched the gun offered into evidence.

      The jury found appellant guilty as charged of aggravated robbery and

aggravated murder with gun specifications.      He was also convicted of death



                                         3
penalty specifications for murder to escape detection or apprehension for another

offense, R.C. 2929.04(A)(3), and murder in the course of a robbery, R.C.

2929.04(A)(7). The jury recommended death. The trial court sentenced appellant

to imprisonment for the aggravated robbery and the gun specifications, and to

death for the aggravated murder. The court of appeals affirmed.

      The cause is now before this court upon an appeal as of right.

                              __________________

      Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.

Breyer, Assistant Prosecuting Attorney, for appellee.

      H. Fred Hoefle and Chuck R. Stidham, for appellant.

                              __________________

      FRANCIS E. SWEENEY, SR., J.              Appellant presents twenty-seven

propositions of law for our consideration. (See Appendix, infra.)        We have

independently considered each proposition and have reviewed the death penalty

sentence for appropriateness and proportionality. However, we summarily reject

arguments that either have not been preserved, involve settled issues, or are cured

by our independent review. See, e.g., State v. Poindexter (1988), 36 Ohio St.3d 1,

520 N.E.2d 568, syllabus; State v. Henness (1997), 79 Ohio St.3d 53, 56, 679

N.E.2d 686, 691. Thus, we address only those issues that warrant discussion.

Accordingly, upon review, and for the following reasons, we uphold appellant’s

convictions and sentences, including the death sentence.

                               Juror Misconduct

      In Proposition of Law No. 1, appellant argues that he is entitled to reversal

of the death sentence and imposition of a life sentence because of the misconduct

of one juror during the penalty phase. In Proposition of Law No. 2, appellant




                                        4
contends that the trial court improperly considered a psychologist’s affidavit in

considering this issue. We reject both arguments.

      After the jury had recommended the death penalty and had been discharged,

the state learned that one juror had independently contacted a psychologist for a

definition of paranoid schizophrenia.         The contact was made before jury

deliberations in the penalty phase.     The court conducted a brief hearing and

examined the juror. The juror testified that the psychologist gave him a “very,

boiled down, short” definition that “those kind of people [paranoid

schizophrenics] just are not really in touch with real[i]ty.” The juror testified that

this definition did not differ from what he had heard at trial, and it did not affect

the deliberations in any way. The juror did not share this information with other

jurors. Following appellant’s motion for a new trial based upon juror misconduct,

the state submitted an affidavit from the psychologist in question, stating that the

brief definition she had given to the juror was totally consistent with defense

testimony.

      The juror’s decision to ask his psychologist friend for an outside opinion

constitutes juror misconduct. “Due process means a jury capable and willing to

decide the case solely on the evidence before it[.]” Smith v. Phillips (1982), 455

U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 86. “In a criminal case, any

private communication, contact, or tampering * * * with a juror during a trial

about the matter pending before the jury is          * * * deemed presumptively

prejudicial[.]” Remmer v. United States (1954), 347 U.S. 227, 229, 74 S.Ct. 450,

451, 98 L.Ed. 654, 656. But “[t]he presumption is not conclusive.” Id. In fact,

Smith v. Phillips modified the concept of presumed prejudice and required the

party complaining about juror misconduct to prove prejudice. 455 U.S. at 215-

217, 102 S.Ct. at 945, 71 L.Ed.2d at 85-86. See United States v. Zelinka (C.A.6,



                                          5
1988), 862 F.2d 92, 95; United States v. Sylvester (C.A.5, 1998), 143 F.3d 923,

933-934.

      Additionally, Ohio courts have a long-standing rule “not [to] reverse a

judgment because of the misconduct of a juror unless prejudice to the complaining

party is shown.” State v. Hipkins (1982), 69 Ohio St.2d 80, 83, 23 O.O.3d 123,

125, 430 N.E.2d 943, 946. Accord State v. Keith (1997), 79 Ohio St.3d 514, 526,

684 N.E.2d 47, 60. The defense must establish that an outside communication

“biased the juror.” Id., citing State v. Phillips (1995), 74 Ohio St.3d 72, 88-89,

656 N.E.2d 643, 661. Under Crim.R. 33(A)(2), juror misconduct must materially

affect an accused’s substantial rights to justify a new trial.      See, also, R.C.

2945.79(B).

      Here the trial court determined that appellant suffered no harm or prejudice

as a result of the juror’s brief conversation with the psychologist. A court may

determine that a juror’s impartiality has remained unaffected based upon that

juror’s testimony. Smith v. Phillips, 455 U.S. at 215, 102 S.Ct. at 945, 71 L.Ed.2d

at 85. In fact, the juror’s brief conversation clearly did not prejudice appellant

because the psychologist’s comments reinforced expert defense testimony. Thus,

if the juror was influenced at all, he could have been influenced only in appellant’s

favor, and the other jurors, unaware of the conversation, could not have been

affected at all. Accordingly, appellant has not established that any prejudice

resulted from this juror misconduct. Crim.R. 33(A)(2); Keith, 79 Ohio St.3d at

526, 684 N.E.2d at 60; Hipkins, 69 Ohio St.2d at 83, 23 O.O.3d at 125, 430 N.E.2d

at 946.

      In Proposition of Law No. 2, appellant argues that the psychologist’s

affidavit cannot be considered under Evid.R. 606(B). Evid.R. 606(B) concerns

limits on evidence about a jury’s deliberations.       The rule restricts a juror’s



                                         6
competence to testify about “any matter or statement occurring during the course

of the jury’s deliberations or to the effect of anything upon his or any other juror’s

mind or emotions as influencing him” with respect to the verdict “or concerning

his mental processes in connection therewith.” However, the rule permits a juror

to testify regarding extraneous prejudicial information or improper outside

influence, but only after some outside evidence (evidence aliunde) of that act or

event has been presented.

      Appellant argues that the affidavit was not admissible under Evid.R. 606(B)

because the improper contact did not occur during deliberations. But the rule

makes no such requirement. Outside evidence on improper influence is admissible

without regard to when the influence occurred.

      In this case, the trial court properly conducted a hearing and permitted the

juror to testify. Evid.R. 606(B) recognizes a juror’s competence to testify about

any outside influence “after some outside evidence of that act or event has been

presented.”   Trial courts are given broad discretion in dealing with outside

contacts. Keith, 79 Ohio St.3d at 526-527, 684 N.E.2d at 60; Phillips, 74 Ohio

St.3d at 89, 656 N.E.2d at 661.

                               Jury Selection Issues

      Batson claims. In Proposition of Law No. 21, appellant contends that the

prosecution peremptorily excused jurors on the basis of their race. Batson v.

Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, held that the

Fourteenth    Amendment’s Equal Protection Clause precludes purposeful

discrimination by the state in the exercise of its peremptory challenges so as to

exclude members of minority groups from petit juries.            See, also, State v.

Hernandez (1992), 63 Ohio St.3d 577, 581, 589 N.E.2d 1310, 1313.               If the




                                          7
defendant makes a prima facie case of discrimination, the state must provide a

neutral explanation. Id. at 582, 589 N.E.2d at 1313.

      Appellant claims that the state’s peremptory challenges against two jurors

were racially motivated. Yet, contrary to this claim, the facts and any other

relevant circumstances did not establish a prima facie case because they did not

raise an inference that the prosecutor used the challenges for racial reasons. See

id. at 582, 589 N.E.2d at 1313. In fact, one African-American replaced a white

juror challenged by the state.          Additionally, when these challenges were

questioned by the defense on Batson grounds, the state explained the two

questioned challenges. The state asserted that it had excused juror number one

because she did not think that she could sign a death verdict. The state excused

juror number thirty-two because of her death penalty views and because she was a

friend of accomplice Little’s family.

      Because of the state’s race-neutral explanations, the trial court was not

required to interfere with the state’s peremptory challenges. Cf. State v. Moore

(1998), 81 Ohio St.3d 22, 28-29, 689 N.E.2d 1, 9-10. Appellant’s Batson claims

lack merit.

      Denial of challenge for cause. In Proposition of Law No. 22, appellant

contends that the trial court improperly denied his challenge for cause of

prospective juror Matthews. Matthews had formerly lived in the neighborhood

where appellant lived and the murder occurred. Matthews was acquainted with

the victim, had shopped in the C & D Drive-thru a few times, and had seen

Sheppard around but did not know him. Nonetheless, Matthews assured the trial

court that he would be fair and impartial and would decide the issues based upon

the facts. Matthews never sat as a juror because of a peremptory challenge by

appellant.



                                           8
      Fairness requires impartial, indifferent jurors. Yet jurors need not be totally

ignorant of the facts and issues involved. Murphy v. Florida (1975), 421 U.S.

794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594-595.              Whether a

prospective juror knew the victim of an offense or had previously seen the accused

is not, per se, a basis for dismissal for cause. See Crim.R. 24(B). The trial court

has discretion in determining a juror’s ability to be impartial. State v. Williams

(1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 351, 452 N.E.2d 1323, 1331.

      Here, caution suggests sustaining the challenge, but we find that the trial

court’s failure to do so was not an abuse of discretion. Matthews unequivocally

stated his intention to be impartial and decide the case only on the facts.

“[D]eference must be paid to the trial judge who sees and hears the juror.”

Wainwright, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 853.

                                Trial Phase Issues

      Admission of appellant’s pretrial statements. In Proposition of Law No.

12, appellant contends that his pretrial statement was inadmissible because police

never informed him that he was “capitally eligible” for the offense he committed.

However, police officers are not required to inform a suspect that he is potentially

eligible for a death sentence prior to obtaining a valid waiver of the right to

counsel. Garner, 74 Ohio St.3d at 60, 656 N.E.2d at 635. To impose such a

requirement would force the police to discuss penalties and would complicate

understanding of Miranda rights, neither of which makes sense. See, e.g., State v.

Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965, 973. This proposition

lacks merit.

      Search of residence. In Proposition of Law No. 13, appellant makes a

generalized complaint about the search of his residence and the seizure of the

items found therein. However, contrary to appellant’s claims, the evidence shows



                                         9
that police did not enter the residence until they had secured a warrant. Second,

neither appellant’s name nor the name of the owner of the house needed to be on

the warrant, since the warrant described exactly the place to be searched. 2

LaFave, Search and Seizure (3 Ed.1996), Section 3.1. Finally, adequate evidence

supported the issuance of the warrant.       The affidavit states that police were

investigating a homicide/robbery at the C & D Drive-thru, that a witness saw two

males enter the drive-through, heard a gunshot, and observed them running away,

and that further investigation led the police to appellant’s home. When a warrant

has been issued, the duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause existed. This

determination is accorded great deference. State v. George (1989), 45 Ohio St.3d

325, 544 N.E.2d 640, paragraph two of the syllabus. We reject this proposition of

law.

       Instruction on involuntary manslaughter. In Proposition of Law No. 14,

appellant argues that the trial court erred in refusing to instruct on the lesser

included offense of involuntary manslaughter. This issue has been discussed

many times in similar cases. State v. Raglin (1998), 83 Ohio St.3d 253, 257, 699

N.E.2d 482, 487. The rule is that “ ‘[e]ven though an offense may be statutorily

defined as a lesser included offense of another, a charge on such lesser included

offense is required only where the evidence presented at trial would reasonably

support both an acquittal on the crime charged and a conviction upon the lesser

included offense.’ ” Id. at 257, 699 N.E.2d at 488, quoting State v. Thomas

(1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. Here,

under any reasonable view of the evidence, appellant’s killing of Willhide was

purposeful, as the location of the victim’s gunshot wound could imply only a




                                        10
purposeful killing. See State v. Palmer (1997), 80 Ohio St.3d 543, 687 N.E.2d

685.

       In his pretrial confession, appellant said that he hadn’t entered the drive-

through with the intention of killing anyone. He said that after accomplice Little

left, “I just shot [Willhide].” When asked why, appellant said, “I don’t know. * *

* I [wasn’t] in my right mind[.] * * * I don’t know why I shot [him]; I [didn’t]

have no reason.” When asked if he shot him so Willhide could not identify him,

appellant replied, “Yeah. Yeah, [that’s] the main reason, but I * * * didn’t mean

to shoot [him].” When asked if the gun went off accidentally, appellant said “no”

and repeated, “I did not mean to shoot [him].” Later he said, “[Y]ou could say it

was accidentally but * * * I don’t know.” Thus, appellant’s pretrial statement

never explicitly claims that the killing was an accident but suggests instead that

the killing was not planned.

       Moreover, the other facts and circumstances preclude any reasonable basis

for finding that the killing was not purposeful. Appellant’s shot, fired from close

range, went directly to the back of Willhide’s head, indicating appellant’s intent to

kill. Appellant’s semiautomatic handgun required a seven-pound pull to fire the

weapon. The video shows that Willhide was cooperative and did nothing to induce

panic or confusion in his killer, since he neither resisted nor struggled before he

was shot. Finally, even before the robbery, appellant had speculated with his

friends what it would be like to shoot someone.

       Thus, no reasonable jury could have both rejected a finding of guilty on the

charged crime and returned a verdict of guilty on the lesser included offense of

involuntary manslaughter.      We find that the trial court properly rejected

appellant’s request for an involuntary manslaughter instruction.




                                         11
      Sufficiency and weight of the evidence. In Proposition of Law No. 15,

appellant claims that the state failed to prove that he purposely killed Willhide. In

Proposition of Law No. 16, appellant argues that the verdict was against the

manifest weight of the evidence. We disagree. The evidence sufficiently and

overwhelmingly supported the finding that appellant purposely killed his victim.

                               Penalty Phase Issues

      Exclusion of evidence. In Proposition of Law No. 3, appellant argues that

the trial court erred by denying the admission of mitigating evidence offered at the

penalty phase. The mitigation evidence excluded was an excerpt from a learned

treatise proffered to bolster the testimony of appellant’s expert witness, Dr. Jeffrey

Smalldon, a clinical psychologist.

      R.C. 2929.04(C) grants wide latitude to the defendant in the presentation of

mitigating evidence during death penalty hearings. Also, hearsay rules cannot be

used to defeat the ends of justice. State v. Landrum (1990), 53 Ohio St.3d 107,

114, 559 N.E.2d 710, 720, citing Green v. Georgia (1979), 442 U.S. 95, 99 S.Ct.

2150, 60 L.Ed.2d 738. Yet the Rules of Evidence still apply to penalty hearings.

State v. Williams (1995), 73 Ohio St.3d 153, 159, 652 N.E.2d 721, 727-728; State

v. Jenkins (1984), 15 Ohio St.3d 164, 190, 15 OBR 311, 333, 473 N.E.2d 264,

289. This type of evidence is impermissible. See Piotrowski v. Corey Hosp.

(1961), 172 Ohio St. 61, 69, 15 O.O.2d 126, 130, 173 N.E.2d 355, 360; Stinson v.

England (1994), 69 Ohio St.3d 451, 457-458, 633 N.E.2d 532, 539.

      However, the United States Supreme Court has carved out an exception to

evidentiary rules for mitigation evidence in extreme circumstances when its

exclusion would violate the Due Process Clause of the Fourteenth Amendment to

the United States Constitution. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60

L.Ed.2d 738.



                                         12
       In Green, the trial court was held to have wrongfully excluded, as hearsay,

testimony from a witness that a co-defendant (Moore) had confided to him that

Moore had killed the victim, shooting her twice after ordering Green to run an

errand.     The Supreme Court reversed, holding that the evidence was highly

relevant to one of the mitigation factors.     Here, the excluded evidence was

intended only to bolster a statement already made by Dr. Smalldon, that a

connection existed between head injuries and psychotic conditions. Moreover,

Smalldon himself did not accept the text as authoritative in all respects, although

he described it as “one of the most widely respected and most frequently cited

texts in this field.”

       The book chapter excluded here does not compare in any way to the

testimony “highly relevant to a critical issue” excluded in Green v. Georgia. We

reject this proposition of law.

       Prosecutorial misconduct. In Proposition of Law No. 4, appellant makes

several arguments. First, appellant cites State v. Gumm (1995), 73 Ohio St.3d 413,

653 N.E.2d 253, and State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d

311, and argues that the prosecutor is restricted from making certain comments on

the underlying facts of an aggravated murder.       We disagree with appellant’s

analysis.    Wogenstahl recognizes that evidence relating to the facts of the

aggravating circumstances must be considered in the penalty determination. Id. at

355, 662 N.E.2d at 321. Although, according to Wogenstahl, paragraph two of the

syllabus, prosecutors cannot argue that the nature and circumstances of an offense

are aggravating circumstances, the facts and circumstances of the offense must be

examined to determine whether they are mitigating. R.C. 2929.04(B). Thus, a

prosecutor may legitimately refer to the nature and circumstances of the offense,

both to refute any suggestion that they are mitigating and to explain why the



                                        13
specified aggravating circumstance outweigh mitigating factors. State v. Combs

(1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077.

      Here, for the most part, the prosecutor’s sentencing argument was restrained

and straightforward and dealt reasonably with the facts of the crime. The two

speculative comments on what Willhide was thinking at the moment he was shot

were not so egregious as to constitute prejudicial error.

      Although he overstated the evidence, the prosecutor did not commit

grievous error by asserting that appellant “conspired to rob other stores prior to

this robbery.” The guilt phase evidence did show that appellant had purchased a

firearm and had said that he planned to rob a BP station.

      Appellant also contends that error occurred when the prosecutor was

permitted to replay the crime scene videotape during the penalty phase.

Undoubtedly, the tape served to emphasize the facts of the murder as well as the

facts of the aggravating circumstance. However, the video is an objective and

impartial depiction of exactly what occurred during the crime and of the

aggravating circumstance, and is a better witness than any other source. Both the

facts of the offense as well as those of the aggravating circumstance are relevant in

the weighing process. Gumm and Wogenstahl, supra.

      More troublesome, however, is the prosecutor’s argument asserting that the

defense was underhanded by not entering a plea of not guilty by reason of

insanity. The appellant was free to enter whatever plea he wished and cannot be

chastised for doing so. Landrum, 53 Ohio St.3d at 110, 559 N.E.2d at 717. Also,

Dr. Smalldon’s testimony setting forth an R.C. 2929.04(B)(3) mitigating factor did

not justify an insanity plea, nor was that testimony admissible in the trial phase.

State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895, paragraph one of the

syllabus. Nonetheless, this court’s independent sentence assessment cures the



                                         14
effect of this sentencing error. Landrum, 53 Ohio St.3d at 124-126, 559 N.E.2d at

729-730.

                       Independent Sentence Evaluation

      Having discussed some and considered all of appellant’s propositions of

law, we now independently review the death sentence for appropriateness and

proportionality. We find that the two aggravating circumstances appellant was

found guilty of committing were proven beyond a reasonable doubt.

      Appellant’s mother, Dolores Sheppard, and oldest sister, Alberta Sheppard,

testified in mitigation. They described appellant as a normal boy who grew up

with two sisters and two brothers in a poor but loving family. Appellant’s father

died when appellant was four years old. Because of physical illness and disability,

Dolores was unable to work, and the family struggled financially. Appellant was a

good student and was active in football and wrestling. After a September 1993

automobile accident, in which appellant suffered head injuries, his behavior

changed dramatically. His grades suffered, he lost interest in sports and school,

and he dropped out in his junior year. Because of his changed behavior, Dolores

tried to get him some assistance, but appellant refused it. Dolores asserted that

eight out of seventeen members of her mother’s family had mental problems.

Dolores’s brother, Darryl, was repeatedly hospitalized as a schizophrenic.

      Gwendolyn Bradbury, a Butler County social worker, worked with the

family from 1981 until 1992, seeing them at least weekly until the family moved to

Hamilton County in 1992. Bradbury corroborated Dolores’s testimony as to the

family struggles and described the family as religious and regular churchgoers.

Bradbury thought appellant was a shy, reserved boy with good manners. After the

accident, he did not appear to be the same boy she knew growing up.




                                        15
       Dr. Jeffrey Smalldon, a clinical psychologist, performed a comprehensive

evaluation of appellant and concluded that he was a paranoid schizophrenic. Dr.

Smalldon based his conclusion on seven interviews with appellant over an eight-

month period, extensive psychological testing, discussions with family members,

and his review of appellant’s background. Dr. Smalldon found that appellant was

very withdrawn, was difficult to engage in conversation, and exhibited delusional

thinking and behavior. In his opinion, appellant was not faking mental illness,

since he was terrified of being seen as mentally ill like his Uncle Darryl. Dr.

Smalldon believed that the September 1993 automobile accident in which

appellant suffered minor head injuries may have precipitated the onset of this

latent mental illness.

       Dr. Smalldon believed that the family history supports his diagnosis of

paranoid schizophrenia, which has a genetic component and frequently recurs in

families. Dolores has twice been hospitalized for serious depression, appellant’s

sister Alberta has been treated for serious depression, and his sister Bridgette is

autistic.   Appellant’s Uncle Darryl was repeatedly hospitalized for paranoid

schizophrenia, a fact well documented. Dr. Smalldon testified that two great aunts

and a great uncle have also had extended psychiatric care and hospitalization, and

several first and second cousins have histories of mental problems. Dr. Smalldon

admitted that appellant’s family had relayed much of this family history to him, yet

he had reviewed some medical records.

       In Dr. Smalldon’s view, appellant’s severe mental illness does not qualify

him for an insanity defense, but his illness would have substantially impaired his

reasoning, insight, and ability to conform his conduct to the law. Thus, in Dr.

Smalldon’s opinion, appellant’s mental illness substantially compromised his

ability to know that what he was doing was criminally wrong or to conform his



                                        16
behavior to the law. Dr. Smalldon acknowledged that appellant had never been

treated for mental illness, but paranoid schizophrenia usually does not appear until

the late teens or early twenties. Finally, Dr. Smalldon did not find that appellant

had suffered from any physical or emotional abuse while growing up, although

appellant’s father’s death was a “very significant event.” Nor did Dr. Smalldon

feel that appellant had a history of drug or alcohol abuse, although he occasionally

used marijuana and drank.

       According to Dr. Smalldon, symptoms of paranoid schizophrenia include

profound alienation from the environment and from other people, difficulty in

appreciating the sequence of events, searching for structure, feelings of wariness,

vulnerability, and helplessness, a decline in personal grooming, and a deep lack of

trust in others.

       Sentence evaluation. The nature and circumstances of the offense offer no

mitigating features. Appellant’s deliberate murder of Willhide was unprovoked,

brutal, and tragic.

       Appellant’s history, character and background offer minimal mitigating

features. Although appellant’s father died when he was four, and his mother

struggled with her own illnesses and limited financial resources, the family was

religious and a close, loving family. The family received help from a social

worker, and this social worker was extremely close to the family, visiting at least

weekly for more than ten years. Appellant was described as a well-behaved boy

with good manners. Generally he received good grades in school and was active

in school sports. Because the mother was concerned about bad influences, she

moved the family back to Cincinnati in 1992. We find that appellant’s family

background offers little by way of mitigation. See, e.g., State v. Wilson, 74 Ohio

St.3d at 400-401, 659 N.E.2d at 310.



                                        17
         Appellant’s age of eighteen also offers little mitigation. “At the time of the

murder, appellant was a man of full legal age. He was an adult with all of the

privileges and responsibilities of an adult.” State v. Slagle (1992), 65 Ohio St.3d

597, 613, 605 N.E.2d 916, 931. However, his lack of a significant criminal history

is entitled to some weight.

         R.C. 2929.04(B)(3) sets forth the following mitigation factor: “[w]hether, at

the time of committing the offense, the offender, because of a mental disease or

defect, lacked substantial capacity to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law.” Dr. Smalldon believed that

the appellant, due to a mental disease or defect, lacked substantial capacity to

appreciate the criminality of his conduct or to conform it to the requirements of the

law. We give this opinion some weight.

         However, weighing the evidence presented in mitigation against the two

aggravating circumstances, we find that the aggravating circumstances outweigh

the mitigating factors. We find this beyond a reasonable doubt.

         Finally, we find the death penalty proportionate when compared with other

cases of felony murder during an aggravated robbery. See, e.g., State v. Raglin, 83

Ohio St.3d 253, 699 N.E.2d 482; State v. Hill, 73 Ohio St.3d 433, 653 N.E.2d 271;

State v. Benge (1996), 75 Ohio St.3d 136, 661 N.E.2d 1019.

         We affirm appellant’s convictions and sentences, including the sentence of

death.

                                                                   Judgment affirmed.

         MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG STRATTON,

JJ., concur.

                                      APPENDIX




                                           18
      “Proposition of Law No. 1: Where a juror, during the penalty phase of a

capital trial in which the defense offers expert testimony that the defendant suffers

from a mental disease or defect, contacts a nontestifying psychologist outside of

the court proceedings to acquire information with respect to the defense expert’s

diagnosis of the defendant, and thereafter votes with other jurors to impose the

death sentence on the defendant, the defendant’s constitutional rights to due

process, to a fair and impartial jury, and to be free from cruel and unusual

punishment have been violated, and he is entitled to be resentenced to life

imprisonment.”

      “Proposition of Law No. 2: Evidence in the form of affidavits of a non-

testifying psychologist contacted by a juror during the penalty phase of a capital

prosecution is not evidence aliunde such as to permit the trial court, considering a

motion for new trial and/or to resentence the defendant, to inquire as to the effect

of such contact upon the deliberations of the errant juror, or any other juror.”

      “Proposition of Law No. 3: At the penalty phase of an aggravated murder

prosecution, the trial court is required to extend considerable latitude to the

defense in the admission of evidence with respect to mitigation of the death

penalty, and where the trial court excludes relevant, probative evidence of

mitigation, by granting an objection which was never made, and which was

expressly disavowed by the prosecutor, and which evidence is proffered into the

record by the defense, the rights of the accused to due process of law under the

Fourteenth Amendment, and to be free from cruel and unusual punishment under

the Eighth Amendment, and under Art. I Secs. 9 and 16, O. Const., have been

violated, the death sentence imposed is unlawful and unconstitutional, and must be

reversed, and the accused resentenced to life imprisonment.”




                                         19
      “Proposition of Law No. 4: Egregious misconduct by the prosecutor in the

penalty phase of capital proceedings requires reversal, and where the prosecutor’s

final argument for death argues nonstatutory aggravating factors, argues ‘facts’

outside the evidence, attacks the relevance of evidence admitted by the court,

contains inflammatory remarks and invective against the accused and his counsel,

a death sentence based on a jury verdict following such arguments violates due

process and the Eighth Amendment [to] the United States Constitution, and their

counterparts in the Ohio Constitution.”

      “Proposition of Law No. 5: Specifications under R.C. 2929.04(A)(3) and

(A)(7) are duplicative, and must be merged prior to sentencing proceedings, upon

motion of the accused. The failure of the trial court, sua sponte, to merge such

specifications constitutes a violation of the rights of the accused under the United

States Constitution and the Ohio Constitution as well where the death sentence is

imposed thereafter.”

      “Proposition of Law No. 6: The power conferred by R.C. 2929.05 upon

appellate courts to review aggravating and mitigating factors, and to determine the

appropriateness of a given death sentence, is subordinate to the right of the

accused to trial by jury under Art. I Secs. 5 and 10 of the Ohio Constitution.”

      “Proposition of Law No. 7: Unless it can fairly be held beyond a reasonable

doubt that penalty phase error in a capital trial had no effect upon the jury’s

sentencing verdict, appellate courts are rendered powerless by the right to trial by

jury set forth in the Ohio Constitution, Art. I Secs. 5 and 10, from purporting to

‘cure’ the error and to affirm the death sentence; any such affirmance violates the

right of the accused to trial by jury, and the death sentence must be vacated and set

aside.”




                                          20
      “Proposition of Law No. 8: The affirmance of a death sentence by an

appellate court which has reweighed the aggravating and mitigating factors absent

duplicative and improper aggravating circumstances originally considered and

weighed by the jury in recommending the death sentence, constitutes a violation of

the right of the accused under the Eighth Amendment to have the death sentence

imposed only after the proper procedures have been followed under the state

scheme for imposing the death sentence, and also constitutes a violation of the

right to due process of law in that such appellate reweighing abrogates the liberty

interest created by state law to jury participation in the capital sentencing process.”

      “Proposition of Law No. 9: It is impermissible for a sentencer in a capital

case to weigh the nature and circumstances of the offense as an aggravating

circumstance, and to weigh as aggravating an aggravating circumstance which the

law requires to be merged with another such circumstance for sentencing

purposes, and, where a trial court considers, and weighs, both such improper

aggravators, the death sentence imposed violates the offender’s constitutional

rights under the Eighth and Fourteenth Amendments to the U.S. Constitution, and

Art. I Secs. 9 and 16 of the Ohio Constitution, and must be reversed.”

      “Proposition of Law No. 10: Where the state fails to establish beyond a

reasonable doubt that aggravation outweighs mitigation beyond a reasonable

doubt, the death penalty is absolutely precluded, and the imposition of the death

sentence under such circumstances constitutes a violation of the offender’s

constitutional right to be free of cruel and unusual punishment and also his right to

due process of law.”

      “Proposition of Law No. 11: Egregious prosecutorial misconduct during the

guilt phase of a capital prosecution prejudices the due process right of the accused

to a fair trial under the Fourteenth Amendment to the U.S. Constitution, and Art. I



                                          21
Sec. 16 of the Ohio Constitution, requiring reversal of his conviction and a new

trial.”

          “Proposition of Law No. 12: The admission of involuntary, incriminating

statements, or those given without a valid waiver of the suspect’s privilege against

self-incrimination, violates that privilege, guaranteed by the Fifth and Fourteenth

Amendments to the Constitution of the United States, and Art. I Sec. 10 of the

Ohio Constitution.”

          “Proposition of Law No. 13: Where police enter a residence prior to the

issuance of a warrant, and where the warrant does not describe the premises as the

residence of the accused, who resides at that residence, nor does it connect the

accused with the offense, the search and resulting seizure violate the rights of the

accused under the Fourth and Fourteenth Amendment[s] to the United States

Constitution, and Art. I Sec. 4 of the Ohio Constitution, and a motion to suppress

the evidence seized therefrom should be granted.”

          “Proposition of Law No. 14: Involuntary manslaughter is always a lesser

included offense of aggravated murder, and where the accused has denied a

purposeful killing, he is entitled by due process to an instruction on the lesser

offense, and denial of a proper request for an instruction on the lesser offense

violates the Due Process Clause of the U.S. and Ohio Constitutions, rendering the

conviction of capital murder unconstitutional, and the death sentence void.”

          “Proposition of Law No. 15: The Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States, and the Ohio Constitution

guarantee to the due course of law require the prosecution [to] prove each and

every element of a criminal offense beyond a reasonable doubt, and in the absence

of evidence sufficient to persuade a rational factfinder of each such element to that




                                         22
degree, a conviction is based upon insufficient evidence, offends due process, and

must be reversed.”

      “Proposition of Law No. 16: A conviction — and a death sentence — must

be reversed, and a new trial granted, where the conviction is contrary to the

manifest weight of the evidence.”

      “Proposition of Law No. 17: The Ohio capital statutes, for purposes of

proportionality review, death sentences must be compared with all other cases

within the jurisdiction in which the death sentence was imposed, as well as those

capital cases in which it was not imposed. [Sic.]”

      “Proposition of Law No. 18:          The Ohio death penalty statutes are

unconstitutional, violating the Eighth Amendment proscription of cruel and

unusual punishments, the Fourteenth Amendment guarantees to due process of law

and to the equal protection of the laws, and also violating the concomitant

provisions of the Ohio Constitution.”

      “[Subproposition of Law No. 18(A) ]: The death penalty is so totally

without penological justification that it results in the gratuitous infliction of

suffering, and that, consequently, there is no rational state interest served by the

ultimate sanction.”

      “[Subproposition of Law No. 18(B) ]:           Both locally, statewide and

nationally, the death penalty is inflicted disproportionately upon those who kill

whites as opposed to those who kill blacks, and even within Hamilton County, the

death penalty is selectively imposed, rendering the penalty as applied in Hamilton

County arbitrary and capricious on the one hand, and the product of racial

discrimination on the other.”

      “[Subproposition of Law No. 18(C) ]: The use of the same operative fact to

first elevate what would be ‘ordinary’ murder to aggravated murder, and then to



                                         23
capital, death-eligible aggravated murder permits the state (1) to obtain a death

sentence upon less proof in a felony murder case than in a case involving prior

calculation and design, although both crimes are ostensibl[y] equally culpable

under the Revised Code, and (2) fails to narrow the capital class to those

murderers for whom the death penalty is constitutionally appropriate.”

      “[Subproposition of Law No. 18(D) ]: The requirement that a jury must

recommend death upon proof beyond a reasonable doubt that the aggravating

circumstances outweigh only to the slightest degree the mitigating circumstances

renders the Ohio capital statutes quasi-mandatory and permits the execution of an

offender even though the mitigating evidence falls just short of equipoise with the

aggravating factors, with the result that the risk of putting someone to death when

it is practically as likely as putting someone to death when it is practically as likely

as not that he deserves to live renders the Ohio capital process arbitrary and

capricious, and, in the absence of a requirement that, before death may be

imposed, aggravating factors must substantially outweigh mitigating factors,

unconstitutional.” (Emphasis sic.)

      “[Subproposition of Law No. 18(E) ]:            The Ohio capital statutes are

constitutionally inf[i]rm in that they do not permit the extension of mercy by the

jury even though aggravating factors may only slightly outweigh mitigating

factors.”

      “[Subproposition of Law No. 18(F) ]: The provisions of Crim.R. 11(C)(3)

permitting a trial court to dismiss specifications upon a guilty plea only under the

nebulous and undefined concept ‘in the interests of justice’ (1) needlessly

encourage guilty pleas and the concomitant waiver of the right to jury, to

compulsory process and to confrontation and (2) reintroduce the possibility that

the death sentence will be imposed arbitrarily and capriciously.”



                                          24
      “[Subproposition of Law No. 18(G) ]: The Ohio capital sentencing scheme

is unconstitutional because it provides no standards for sentencing or review at

several significant stages of the process and consequently death sentences are

imposed, and reviewed, without sufficient statutory guidance to juries, trial courts

and reviewing courts to prevent the unconstitutional arbitrary and capricious

infliction of the death penalty.”

      “[Subproposition of Law No. 18(H) ]: The decision of the Supreme Court

of Ohio in State v. Gumm and State v. Wogenstahl has rendered the Ohio capital

statutes unconstitutional in that they encourage, rather than prevent, the arbitrary

and capricious imposition of the penalty of death.”

      “Proposition of Law No. 19: Prospective jurors who believe that the death

penalty should always, or ‘automatically’ be imposed if the accused is convicted

of capital murder must be excluded from the jury for cause, and the defense is

entitled to explore on voir dire examination the attitudes of prospective jurors

pertaining to the automatic imposition of the death sentence. The presence of even

one such juror on the panel renders the death sentence unconstitutional under the

Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, and Art. I

Secs. 9, 10 and 16.”

      “Proposition of Law No. 20: A death sentence recommended by a jury from

service on which one or more veniremen were excused because of their views

concerning capital punishment cannot stand unless it affirmatively appears on the

record that each such venire[man] excused for cause unequivocally indicates that

his scruples against capital punishment will automatically prevent him from

recommending the death penalty and/or that such views will render him unable to

return a verdict of guilty no matter what the evidence, and that he is prevented by




                                        25
his scruples from following the instructions of the court and considering fairly the

imposition of the death sentence.”

      “Proposition of Law No. 21: It is constitutionally impermissible under the

Equal Protection and Due Process Clauses of the Fourteenth Amendment to the

U.S. Constitution for the state, in a capital prosecution, to exclude from the jury

prospective jurors solely on the basis of their race.”

      “Proposition of Law No. 22: Where a prospective juror in a capital case

lived in the neighborhood where the murder occurred, knew the victim and had

seen the accused around the area, and had coached football at a high school where

the accused had played football, there is an unacceptable risk that such juror

would bring to his deliberations information not brought out in the evidence.”

      “Proposition of Law No. 23: Where the defense fails to move to merge

capital specifications which ought to be merged, such failure constitutes

constitutionally ineffective assistance of counsel, and, where the accused is

sentenced to death in reliance upon an improper aggravating circumstance as a

result, the accused’s Eighth Amendment rights are violated as well as his Sixth

Amendment right to effective assistance of counsel.”

      “Proposition of Law No. 24: Where, during a criminal trial, there are

multiple instances of error, and the cumulative effect of such errors deprives the

accused of a fair trial and undermines the reliability of the conviction and the

sentence of death imposed upon a jury verdict, the rights of the accused to due

process and to be free from cruel and unusual punishment, under the Fourteenth

and Eighth Amendments, respectively, [to] the United States Constitution, and

their corollaries in the Ohio Constitution, have been violated, requiring reversal.”

      “Proposition of Law No. 25: It is impermissible under the Eighth and

Fourteenth Amendments to the U.S. Constitution and Art. I Sec. 9 of the Ohio



                                          26
Constitution for the trial court to instruct the jury that their verdict is merely a

recommendation, as such an instruction impermissibly attenuates the jury’s sense

of responsibility for its decision, and a death sentence imposed following such an

instruction is constitutionally infirm.”

      “Proposition of Law No. 26: The increased need for reliability required in

capital cases by the Ohio and Federal Constitutions mandates the granting to the

defense [of] more than six peremptory challenges.”

      “Proposition of Law No. 27: Where the trial court’s instructions at the

penalty phase of a capital prosecution are prejudicially erroneous, the death

sentence imposed based upon the jury’s death verdict violates the rights of the

accused under the Eighth and Fourteenth Amendments to the U.S. Constitution,

and their corollaries under the Ohio Constitution, and must be reversed, and the

offender sentenced to life imprisonment.”




                                           27
