THE STATE OF OHIO, APPELLEE, v. ALLARD, APPELLANT.
No. 95-1060
Supreme Court of Ohio
Submitted February 21, 1996—Decided May 22, 1996.
75 Ohio St.3d 482 | 1996-Ohio-208
Criminal law—Aggravated murder—Death penalty upheld, when. APPEAL from the Court of Appeals for Knox County, No. 93-7.
{¶ 2} Between June or July 1991 and March 30, 1992, appellant made a number of statements indicating that he intended to kill himself, Karen and/or the three children. In June or July 1991, appellant repeatedly told Wanda Shrimplin, a baby-sitter, that he intended to kill Karen. Appellant told Shrimplin that if he could not have Karen, no one would, and that he intended to kill Karen and anybody she was with. In August 1991, following the decree of dissolution, appellant wrote a letter to a long-time acquaintance, Barbara Parsons. In the letter, appellant stated, “[w]ell my dissolution was made a matter of public record by way of newspaper. Karen and I are very good friends and I am working on getting her back. I see one of three things happening between us in the future, I want the first. One she takes me back and we start over. Second what I don[‘]t want to see but is more than likely * * * is I commit suicide. Third and least likely to happen is that I kill her cause she won[‘]t take me back[.] The third one is followed up by a full life in
{¶ 3} Appellant made similar statements to a number of other witnesses. Maude Etler was appellant‘s co-worker from November 1991 through January 1992. According to Etler, appellant routinely “carried on about Karen, about how they were married, and they were divorced, and that he would be remarrying her because they were married ‘til death do us part, and that‘s how it would end, with one of their deaths, and that if he ever caught her with anybody, he would kill her and the person that she was with.” Appellant told Etler that he intended to kill Karen by stabbing her to death. On one occasion, while Etler was visiting appellant‘s apartment, appellant picked up a knife in the kitchen and said, “I could stab her [Karen] with this.” On several occasions, appellant told Etler that he could get away with anything because he had a paper that “certified him nuts.”
{¶ 4} Cathy Miller worked at an establishment appellant had visited almost every night between November 1991 and March 1992. Appellant frequently spoke to Miller about Karen and the children. Appellant told Miller that Karen‘s parents were trying to take the children away from him, and that “if he [appellant] couldn‘t have * * * [the children], no one could, that he would kill them.” Additionally, appellant told Miller that he was on medication (lithium) for manic depression. According to Miller, appellant said that he could get away with anything if he were to stop taking his medication.
{¶ 5} On March 13, 1992, appellant told a friend, Helen Vance, that he was going to kill Karen. Appellant told Vance that he could quit taking his medication and become “violent enough to kill somebody.” On one occasion, appellant told Vance that he would kill Karen if he ever caught her with another man. On March
{¶ 6} Karen began dating Bruce Bartley in December 1991 or January 1992. On March 21, 1992, Karen and Bartley became engaged to be married. On or after the date of the engagement, appellant told Bartley that the marriage would never take place, that Karen and Bartley would never be together, and that appellant‘s children would never be Bartley‘s children. According to Bartley, appellant repeatedly stated that he (appellant) and Karen would remain together “Til death do us part.”
{¶ 7} On March 28, 1992, appellant told an acquaintance, Carol Slayton, that if he could not have Karen, no one would. Appellant told another acquaintance, Dawn Schaade, that he planned to kill Karen and that he could “go off” if he quit taking his medication. On March 28, appellant told a co-worker, Kenneth Overholt, that he was going to “put Mount Vernon on the map.” Additionally, on the evening of March 28, appellant approached an acquaintance, Mary Martin, and offered to pay her to “hurt” Karen. According to Martin, appellant opened his wallet and said, “[t]he more you hurt her, the more I‘ll pay you.” Martin declined appellant‘s offer. On March 29, appellant told a friend, Deborah Van Houten, that he had stopped taking his medication and that he was going to kill Karen. Van Houten told appellant that no woman was worth going to jail for. Appellant responded by stating, “Oh, yes, she is.” Van Houten‘s husband, Glenn Van Houten, also heard appellant‘s threatening comments.
{¶ 8} Pursuant to the decree of dissolution, appellant had been granted unsupervised visitation rights with his children. However, appellant frequently insisted that Karen accompany him during the court-ordered visitations. On March 30, 1992, appellant spent the evening at his apartment with Karen and the children. At approximately 8:00 p.m., Karen called her mother, Mary Ruth Berry. Karen left
{¶ 9} On March 30, at approximately 11:00 p.m., Sergeant Fred Gerber of the Mount Vernon Police Department arrived at appellant‘s apartment. Gerber heard crying and screaming coming from inside the apartment. When Gerber knocked on the door, appellant‘s outside porch light was immediately turned off. Patrolman Michael Merrilees arrived at the scene at approximately 11:08 p.m. Patrolman Roger Monroe arrived at the scene a few minutes later. The officers continued to knock on the door. Meanwhile, a police dispatcher contacted a representative from Moundbuilders Guidance Center, a local mental health organization that owned and/or operated the apartment complex. The representative gave police permission to break down appellant‘s door.
{¶ 10} At 11:18 p.m., police kicked-in appellant‘s door and discovered Karen‘s body in a sitting position on a living room couch. Police found the body of two-year-old Rachael Allard on the living room floor. During a protective sweep of the apartment, police discovered that appellant had barricaded himself in the bathroom with his two sons, four-year-old Aaron and three-year-old Jay Allard. Appellant shouted, “Get back. I have hostages.” Appellant told police that he was holding a knife to his favorite son‘s (Aaron‘s) throat. Appellant threatened to kill the two boys and stated that he had already “cut” one of them. He asked police to check both Karen and Rachael for a pulse. Police informed appellant that they were unable to detect a pulse from either victim. At that point, appellant stated, “Then you know I mean business.” Police heard appellant say that Karen had not wanted to get back together with him, and that Rachael would have grown up to be “a slut just like her mother.”
{¶ 12} Eventually, appellant agreed to surrender to police. Patrolman Monroe demanded that appellant release the injured boy (Aaron) first. Appellant opened the bathroom door and held a knife to Aaron‘s throat. Appellant then shoved Aaron towards Monroe and retreated back into the bathroom. Appellant released Jay in a similar manner. Thereafter, appellant dropped the knife, sprawled out face down on the floor of the apartment, and stated, “Don‘t hurt me. Don‘t hurt me.”
{¶ 13} Karen had been stabbed or cut at least seventeen times in the area of her chest and neck. She had died as a result of the multiple stab wounds. A broken blade from a small paring knife was found in the fold of Karen‘s sweater. Police found the handle of the paring knife and the remaining portion of the broken blade on appellant‘s kitchen counter. Two other bloody kitchen knives (one steak knife and one serrated spatula or butter knife) were recovered from the apartment. A toxicology study of Karen‘s body fluids revealed that she had taken a potentially lethal overdose of drugs prior to being stabbed to death. Two-year-old Rachael had died as a result of multiple stab wounds to her thorax. Additionally, Rachael‘s neck had been cut or “slashed” with a knife. Aaron and Jay survived appellant‘s attack. Aaron was transported to Children‘s Hospital in Columbus for treatment of wounds to his neck. One of the wounds was a deep incised wound that had missed Aaron‘s trachea by millimeters, and had missed the carotid arteries by one-to-two centimeters.
{¶ 15} Police recovered a number of incriminating items from appellant‘s apartment. Among these items was a letter appellant had addressed to “Mom & Dad.” In the letter, appellant stated, “Karen and I have been supposedly trying to work things [out] but to no avail. She has slept with 4 different guys since our separation & Divorce. She keeps making major promises to me and has lied to me each time. Life is too painful to continue after I settle the score forever I[‘]m gonna end it. * * * I must take 4 other people to the grave with me * * *[.]” A second letter found in appellant‘s apartment was addressed to appellant‘s brother. In that letter, appellant stated, “I[‘]m going to write Mom an [sic and] Dad. I[‘]m going to tell them that their baby is going to prison for murder[.]”
{¶ 16} On March 31, 1992, appellant confessed to the killings. Appellant indicated that he had stabbed Karen to death as the result of an ongoing domestic dispute. Additionally, appellant indicated that he had forced Karen to take a large quantity of pills by holding a knife to the throat of one of the children. Appellant admitted that he had killed Rachael because “she would grow up and do the same damn thing, marry some guy, use him, abuse him, rip him off and then try to lose him, and that‘s the same damn thing her mother did.” Appellant repeatedly stated that Rachael was “just like her mother.” Additionally, appellant claimed that he had slashed Aaron‘s throat because Aaron was Berry‘s favorite grandchild. Appellant stated that the only reason he had demanded to speak with Berry during the hostage crisis was because he had wanted to torment her. During the confession, appellant suggested that he had never really planned to kill his victims.
{¶ 17} Appellant was indicted by the Knox County Grand Jury for the aggravated murders of Karen and Rachael Allard. Count One of the indictment charged appellant with purposely, and with prior calculation and design, causing Karen‘s death. Count Two charged appellant with purposely, and with prior calculation and design, causing Rachael‘s death. Each of the two counts of aggravated murder carried an
{¶ 18} Appellant was tried before a jury. The jury found appellant guilty of all charges and specifications alleged in the indictment. Following a mitigation hearing, the jury recommended that appellant be sentenced to death for each of the two counts of aggravated murder. The trial court accepted the jury‘s recommendations and imposed the sentences of death. Additionally, the trial court sentenced appellant for the attempted aggravated murder of Aaron Allard (Count Three), but terminated the prosecution for felonious assault (Count Four) upon a finding that the offenses charged in Counts Three and Four of the indictment were allied offenses of similar import. On appeal, the court of appeals affirmed the judgment of the trial court and upheld the sentences of death.
{¶ 19} The cause is now before this court upon an appeal as of right.
John W. Baker, Knox County Prosecuting Attorney, and Michael L. Collyer, Special Assistant Prosecuting Attorney, for appellee.
DOUGLAS, J.
{¶ 20} Appellant presents a number of issues for our consideration. (See Appendix, infra.) We have carefully considered each of appellant‘s propositions of law and have independently reviewed appellant‘s death sentences for appropriateness and proportionality. For the reasons that follow, we affirm the judgment of the court of appeals and uphold the sentences of death.
I
{¶ 21}
{¶ 22} Here, we have conducted an exhaustive review of the record and have carefully considered each of appellant‘s twenty-eight propositions of law. Many of the issues raised by this appellant have been addressed and rejected under analogous circumstances in a number of our prior cases. Additionally, several of appellant‘s arguments have been waived. Upon review of appellant‘s propositions of law and a careful examination of the record, we fail to detect any errors that would undermine our confidence in the outcome of appellant‘s trial. We are convinced that appellant received a fair trial by an impartial jury, that he was competently represented by trial counsel, and that he received a fair and reliable sentencing determination. We address, in opinion form, only those issues that merit some detailed discussion.
II
{¶ 24} In his first proposition of law, appellant contends that the trial court committed reversible error by sua sponte ordering and considering a presentence investigation report that had not been requested by appellant. We find no reversible error in this regard.
{¶ 25}
{¶ 26} Here, there is no question that the trial court considered the presentence investigation report in sentencing appellant on the two counts of capital murder. The trial court specifically said that it had done so at the sentencing hearing. In addition, the trial court, in its written sentencing opinion, stated that “[b]efore imposing sentence [for the capital crimes], the Court reviewed the relevant evidence from both trials, the testimony, the exhibits admitted, the defendant‘s unsworn statement, the arguments of counsel, the presentence report, victim impact statements and the psychological reports concerning the defendant.” (Emphasis added.) However, we are not persuaded that any prejudice occurred as a result of the trial court‘s consideration of the presentence report.
{¶ 27} In an attempt to demonstrate prejudice, appellant notes that the presentence investigation report contained a detailed account of the facts of this
{¶ 28} Appellant also cites two instances in which the trial court allegedly “expressly referenced” the presentence investigation report in imposing the sentences of death. Appellant contends that the trial court‘s sentencing opinion “specifically referred to the portion of the P.S.I. in which Jerry [appellant] is described as unable to accept responsibility for his actions.” However, the portion of the sentencing opinion to which appellant refers actually contains no specific reference to the presentence investigation report. Moreover, the evidence adduced at trial clearly established that appellant was unable to accept responsibility for his acts of violence. Appellant also contends that the trial court‘s sentencing opinion “relies upon information in the P.S.I. that suggests the victims’ deaths were prolonged even though no such evidence was admitted at trial.” However, such evidence was admitted at trial in the form of death certificates indicating that there were “several minutes” between the onset of the victims’ wounds and their ultimate demise.
{¶ 29} The presentence report also contained a summary of appellant‘s prior criminal history. In his sentencing opinion, the trial court referred to appellant‘s criminal history in finding that the
{¶ 30} We find that the case at bar is analogous to the situation presented in Campbell, supra, 69 Ohio St.3d 38, 630 N.E.2d 339. In Campbell, a trial judge presiding over a capital jury trial sua sponte ordered the preparation of a presentence investigation report after the jury had returned its verdicts recommending imposition of the death sentence. The presentence investigation report was considered by the trial judge in sentencing the defendant to death. The trial judge never cited any portion of the report as having any particular impact on the sentencing determination, and there was nothing in the record to indicate that the trial court gave any particular weight to the matters contained in the report. Further, both the trial jury and the court of appeals in Campbell unanimously found that the statutory aggravating circumstance the defendant was found guilty of committing outweighed the mitigating factors beyond a reasonable doubt, even though neither the jury nor the court of appeals had considered the presentence report. Under these circumstances, we found that the defendant had failed to establish that the trial court had committed plain error in ordering and considering the report. Id., 69 Ohio St.3d at 43, 630 N.E.2d at 346. The same analysis applies here.
{¶ 31} Nevertheless, appellant attempts to distinguish Campbell on the basis that the trial judge in the case at bar specifically stated in the written sentencing opinion that he had considered the presentence investigation report. However, like the situation in Campbell, appellant has failed to demonstrate that
{¶ 32} Appellant also contends that the trial court converted certain matters contained in the presentence report into “nonstatutory aggravating circumstances.” However, contrary to appellant‘s assertions, there is absolutely no indication in the trial court‘s sentencing opinion that any nonstatutory aggravating circumstances were considered and weighed against the evidence presented in mitigation. In this regard, we reject appellant‘s contentions that State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925, mandates reversal of the death sentences, and that this court‘s independent review is incapable of curing the trial court‘s err in ordering and considering the presentence report.
{¶ 33} In his second proposition of law, appellant contends that the trial court committed reversible error by ordering and considering victim impact statements in sentencing appellant on the two counts of aggravated murder. However, appellant never objected to the compilation or consideration of the victim impact statements. Thus, the plain-error analysis of
{¶ 34} Here, the trial court considered two letters, both of which discussed the impact of the deaths on the victims’ family. One of the letters indicated that death was the only appropriate sentence for appellant. In this regard, we have previously held that expressions of opinion in victim impact statements regarding the appropriate sentence to be imposed upon the offender clearly exceed the scope of permissible victim impact evidence. See State v. Fautenberry (1995), 72 Ohio St.3d 435, 439, 650 N.E.2d 878, 882.
{¶ 35} To establish plain error, appellant must be able to demonstrate that but for the victim impact statements, the trial judge would clearly have sentenced appellant to terms of life imprisonment for the aggravated murders of Karen and Rachael Allard. We find that appellant has failed to make this showing. Our finding is bolstered by the fact that both the trial jury and the court of appeals found that the aggravating circumstance for each killing outweighed the evidence presented in mitigation, even though neither the jury nor the court of appeals considered the victim impact statements in weighing the aggravating circumstance against the mitigating factors. Given this, we can hardly be certain that the trial judge would have sentenced appellant to life imprisonment but for the victim impact statements.
{¶ 36} Accordingly, for the foregoing reasons, we reject appellant‘s first and second propositions of law.
III
{¶ 37} At the outset of the jury‘s penalty phase deliberations, the jurors sent a note to the trial judge requesting an answer the following question: “If sentenced to life in prison on both counts, will the sentences be concurrent or consecutive?” In response, the trial judge stated:
“Concurrent and consecutive are legal terms, and I don‘t remember them even being used throughout the trial, which ought to be a good indicator that it‘s nothing for you to be concerned with. Your role at this stage is to consider the aggravating circumstances, the mitigating factors, and make a recommendation to the Court on each count.
“Consider the counts separately. You are not to speculate as to what sentence the Court is actually going to impose or whether the sentences will be run concurrent or consecutive. That is not something for you to even consider in this matter. Your role is to make a recommendation as to what you think the Court ought to do, not to speculate on what the Court will do under certain circumstances. Is that clear?
“Okay. Resume your deliberations. Thank You.”
{¶ 38} In his third proposition of law, appellant contends that the trial court‘s response to the jury‘s question impermissibly diminished the reliability of the jury‘s sentencing determination. Specifically, appellant contends that the jurors were seeking some assurance from the trial judge that appellant would remain in jail for the rest of his life if the jurors returned verdicts recommending imposition of life sentences. Appellant contends that “[b]y failing to inform the jury that it [the trial court] was statutorily bound to impose a life sentence if the jury * * * [recommended imposition of a life sentence] and what the consequences of that sentence were, the trial court permitted the jury to sentence Appellant while laboring under a fear that Appellant might possibly be turned loose upon society at some point in the near future.” (Emphasis sic.)
{¶ 40} Therefore, we find no error in the trial court‘s response to the jury‘s interrogatory and, accordingly, we reject appellant‘s third proposition of law.
IV
{¶ 41} Appellant‘s fourth proposition of law concerns the death-qualification process used during jury selection. In State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus, vacated and remanded on other grounds (1985), 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452, this court held that “[t]he proper standard for determining when a prospective juror may be excluded for cause based on his views on capital punishment is whether the juror‘s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. (Wainwright v. Witt [1985], [469 U.S. 412, 105 S.Ct. 844] 83 L.Ed.2d 841, followed.)”
{¶ 42} During voir dire, the trial judge asked prospective jurors the following question: “If in a proper case where the facts warrant it and the law permits it, could you join in signing a verdict form which might recommend to the Court the imposition of the death penalty?” Appellant contends that this question was insufficient to ferret-out those prospective jurors who would automatically vote for the death penalty. Appellant suggests, and rightly so, that the defense in a
{¶ 43} Appellant also contends that the trial court erred in failing to excuse prospective juror Carolyn Sisley for cause. With respect to this issue, the court of appeals stated:
“Appellant next argues that the [trial] court erred in not excusing Juror Sisley for cause when she initially stated that it was not probable that she would vote to impose a life sentence, as her brother had been murdered. Appellant argues that she should have been immediately excused for cause, and that the court erred in rehabilitating her, citing Morgan, supra [504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492]. Appellant also argues that the court foreclosed him from making adequate inquiry into this juror‘s ability to remain impartial.
“The court did not err in failing to excuse Sisley immediately upon her response that it was possible, but not probable, that she could vote for a life sentence. Her statement was not an unequivocal statement that she would automatically vote to impose a death sentence. Rather, the response invited a further inquiry into her ability to decide the case based on the evidence and instructions.
“Counsel for appellant questioned Sisley for thirteen pages in the transcript regarding her ability to listen to mitigating evidence. Ultimately, appellant
rehabilitated the juror, as she responded that having heard the mitigating evidence and the court‘s instructions as to the law, she could return a verdict of life. * * * Contrary to appellant‘s claim that the court impermissibly foreclosed specific questioning regarding her ability to consider mitigating evidence, the court suggested that counsel for appellant explain to the juror the nature of mitigating evidence and give her examples, such as social history and psychological evidence. * * * The court did not err in failing to exclude this juror for cause, and we read nothing in Morgan which dictates a different result.”
{¶ 44} We agree with the court of appeals’ analysis of this issue. During voir dire, Sisley indicated that she would listen to mitigating evidence and legitimately weigh the evidence in accordance with the trial court‘s instructions. She indicated that despite her personal tragedy involving the loss of her brother, she could fairly listen to mitigating evidence and return a verdict of life imprisonment as opposed to a sentence of death. Defense counsel specifically asked Sisley the following question: “Having heard the facts of the case with regard to mitigation and as instructed by the Court as to the law, can you return a verdict of life imprisonment as opposed to imposing or voting to impose the death penalty?” Sisley responded in the affirmative. Upon a careful review of the voir dire examination of prospective juror Sisley, we conclude that the trial court did not abuse its discretion in refusing to excuse Sisley for cause. Moreover, we note that appellant ultimately exercised a preemptory challenge to remove Sisley from the jury.
{¶ 45} In his fifth proposition of law, appellant contends that he was required to exhaust all of his preemptory challenges during voir dire to remove biased and impartial jurors from the jury when, according to appellant, each of the prospective jurors removed by preemptory challenge should have been removed for cause. Specifically, appellant exercised his six preemptory challenges to remove prospective jurors Sisley, Black, Brokaw, Sheets, Ohde and Hawk. Appellant
{¶ 46}
{¶ 47} Again, we find that the trial court did not abuse its discretion in rejecting appellant‘s challenge for cause against prospective juror Sisley. Sisley stated during voir dire that she could set her personal feelings aside and follow the trial judge‘s instructions in this case. Sisley indicated that she could fairly assess the evidence and, if the facts and law dictated, recommend a verdict of life imprisonment. See discussion, supra.
{¶ 48} During voir dire, prospective juror Black mentioned that he had formed opinions concerning appellant‘s case based upon what he had previously read in a newspaper. Black also indicated that he was bothered by the fact that a small child had been murdered. However, Black stated that he could impartially decide the case based on the law. Prospective juror Sheets indicated during questioning that he had read about the case in the newspaper. However, Sheets indicated that he would decide the case based solely on what he saw and heard in the courtroom. Likewise, prospective juror Ohde indicated during questioning that he might have formed a “little bit” of an opinion about the case based on what he had read in the newspaper. However, Ohde indicated that he would decide the case based upon what he saw and heard in the courtroom, and that his exposure to the newspaper accounts of the murders would not be a factor in his decision.
{¶ 50} Prospective juror Hawk stated that he had read about the case in the newspaper but that he had not formed an opinion based on what he had read. Hawk stated that he believed that not every person who commits a murder should receive the death penalty, and that he would follow the trial court‘s instructions in this case.
{¶ 51} Contrary to appellant‘s assertions, we find that none of these prospective jurors met the standard for challenges for cause. Thus, the trial court did not abuse its discretion in overruling appellant‘s challenge concerning prospective juror Sisley, and did not err in failing to sua sponte remove prospective jurors Black, Sheets, Ohde, Brokaw and Hawk. Moreover, in this proposition, appellant incorrectly asserts that nine biased jurors actually sat on his jury, namely, jurors Miller, McDonald, Nugent, Mills, Connell, Gallwitz, Pritchett, Reese and Wells. However, we have also carefully reviewed the voir dire examination of each of these members of the jury, all of whom indicated through responses to questioning that they could give appellant a fair trial and make a decision based solely on the evidence.
{¶ 52} Accordingly, for the foregoing reasons, we reject appellant‘s fourth and fifth propositions of law.
V
Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.
{¶ 54} In State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus, we held that [i]n determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child‘s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child‘s ability to recollect those impressions or observations, (3) the child‘s ability to communicate what was observed, (4) the child‘s understanding of truth and falsity and (5) the child‘s appreciation of his or her responsibility to be truthful. A determination of competency is within the sound discretion of the trial judge and will not be reversed on appeal absent a clear abuse of discretion. Id. at 250-251, 574 N.E.2d at 486-487. See, also, Schulte v. Schulte (1994), 71 Ohio St.3d 41, 43, 641 N.E.2d 719, 721.
{¶ 55} Aaron was five years old at the time of trial. Before Aaron testified, the trial court conducted a voir dire examination of Aaron to determine competency. The interview with Aaron took place in chambers where defense counsel and the prosecutor had an opportunity to question Aaron. During the interview, Aaron indicated that he knew the difference between telling the truth and telling a lie. He stated that people who do not tell the truth get in trouble. He was able to relay his full name, his age, the name of his school, and the names of his friends and his school teacher. At the conclusion of the interview, the trial court found Aaron competent to testify. At trial, Aaron explained what had happened on
{¶ 56} Appellant contends that Aaron incorporated some facts into his description of the murders which were uncorroborated by other evidence or testimony. For instance, Aaron testified at trial that someone named Elizabeth was baby-sitting for him on the night of the crimes. However, even if true, these additional matters to which Aaron testified were largely immaterial to his testimony concerning the murders. Appellant also suggests that some or all of Aaron‘s testimony was based on what his grandmother had told him. However, there is no evidence that Aaron spoke to his grandmother concerning the facts of the case. Additionally, Aaron‘s testimony does not read as though it were a recapitulation of facts told to him by his grandmother.
{¶ 57} Aaron‘s competency is adequately demonstrated on the record before us. Accordingly, we find no abuse of discretion in the trial court‘s determination that Aaron was competent to testify and, therefore, we reject appellant‘s sixth proposition of law.
VI
{¶ 58} In his twelfth proposition of law, appellant contends that he was deprived of the effective assistance of trial counsel. We find that appellant has failed to meet his burden of establishing ineffective assistance under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Our finding in this regard applies to all of the instances of alleged ineffectiveness set forth in appellant‘s brief. However, one of the alleged instances of attorney ineffectiveness is deserving of some further comment.
{¶ 59} Appellant contends that the premier example of attorney ineffectiveness occurred when defense counsel allegedly failed to adequately argue for the suppression of appellant‘s entire videotaped confession with the resulting
{¶ 60} On March 31, 1992, appellant confessed to the killings by making a lengthy statement to police. The statement was recorded on two videotapes, i.e., appellant‘s initial statements to police, and a second statement. Prior to trial, appellant moved to suppress the entire videotaped confession (both videotapes). However, at a hearing on the motion, the state indicated that it would not offer the first statement into evidence at trial, even though the trial court found that appellant‘s first statement had been voluntarily given. With respect to appellant‘s second statement, the trial court denied appellant‘s motion to suppress, finding that the second statement would be admissible at trial.
{¶ 61} At trial, the defense and prosecution agreed to submit the second statement as a joint exhibit to be played for the jury during the state‘s case-in-chief. Appellant‘s attorneys prepared a seven-page memorandum to explain their rationale for so doing. The memorandum was submitted to the court and placed under seal. We have reviewed this memorandum and are completely satisfied that the defense attorneys had a sound and objectively reasonable basis for agreeing to the submission of the joint exhibit which, it appears, would not have been introduced into evidence but for the agreement between the state and the defense. Further, the prosecutor‘s brief in this case sets forth the following persuasive arguments why the record before us simply does not support a finding of ineffective assistance of counsel:
While the State has not seen the Internal Memorandum containing the defense attorney‘s rationale for seeking the admission of the tape, the record confirms that counsel employed sound trial strategy in seeking admission of the second video tape.
The State presented overwhelming evidence that appellant committed two premeditated and calculated murders. Before committing those atrocities, appellant
discussed with no less than twelve civilians how, when, and why he was going to kill his wife and children. All twelve testified for the prosecution. Loaded down with overwhelming civilian testimony, a decision was made by the prosecution to jettison anything that might pose a Constitutional snag on appeal. This included appellant‘s confessions. Appellant sought admission of the tape [the second statement] because in light of the overwhelming evidence against him, he had nothing to lose. Through the tape, he would be able to tell the jury his side of the story without having to subject himself to cross-examination. Although appellant made two recorded statements, he was ultimately permitted to select the one which he thought portrayed him in the most favorable light. The defense used the statement to refute the State‘s theory that appellant planned his murders. In his final argument during the guilt phase, defense counsel raised as his first line of defense, I can suggest to you that there is evidence, the Joint Exhibit [Number] 83, which raises a question as to whether it was purposeful or intentional or whether it was a reaction, a panic situation * * *.
Moreover, as the proof of prior calculation and design was overwhelming, appellant cannot show that the outcome of the trial would have been different but for admission of the second tape.
{¶ 62} Again, we find that appellant has failed to meet his burden of establishing ineffective assistance of counsel under the standards set forth in Strickland, supra. Accordingly, we reject appellant‘s twelfth proposition of law.
{¶ 63} In his fourteenth proposition of law, appellant contends that the trial court committed reversible error by allowing the state to introduce into evidence an exhibit that was irrelevant, prejudicial and misleading. Specifically, the subject of appellant‘s fourteenth proposition of law concerns a handwritten note found in appellant‘s kitchen that contained mail-order information for a set of Miracle Blade knives that carried a lifetime no fault guarantee.
{¶ 64} During opening statements in the guilt phase, the prosecutor referred to the handwritten note as one of the most horrifying things found in appellant‘s apartment. However, the handwriting on the note was never analyzed, no investigation was ever conducted to establish that appellant had ordered these knives, and no evidence was presented at trial to link the knives to the murders. The trial court allowed the note to be introduced into evidence.
{¶ 65} The court of appeals found that the handwritten note was only marginally relevant to the issue of prior calculation and design, but that the evidence was not unfairly prejudicial or misleading. Given the staggering, overwhelming evidence of appellant‘s guilt, we agree with the court of appeals’ conclusion that appellant suffered no unfair prejudice from the admission of the handwritten note. Accordingly, we reject appellant‘s fourteenth proposition of law.
VIII
{¶ 66} In his fifteenth proposition of law, appellant contends that the trial court erred in allowing the state to present victim impact testimony during the guilt phase. Specifically, appellant complains that several witnesses for the prosecution were permitted to testify that Karen Allard feared appellant. Additionally, appellant claims that the testimony of Bruce Bartley, who had planned to marry Karen, should have been excluded as unduly prejudicial victim impact evidence.
{¶ 67} In Fautenberry, supra, 72 Ohio St.3d at 440, 650 N.E.2d at 882-883, we stated that [t]rue victim impact evidence * * * shall be considered by the trial
{¶ 68} Accordingly, we reject appellant‘s fifteenth proposition of law.
IX
{¶ 69} The subject of appellant‘s sixteenth proposition of law involves the parade of witnesses—Wanda Shrimplin, Maude Etler, Cathy Miller, Helen Vance, Bruce Bartley, Carol Slayton, Dawn Schaade, Kenneth Overholt, Mary Martin, and Deborah and Glenn Van Houten—who testified concerning the threatening and incriminating statements appellant had made prior to the murders. Appellant contends that the testimony was cumulative and unfairly prejudicial, and that the trial court should have excluded the evidence under
{¶ 70} Appellant concedes that he failed to object to the testimony of the various witnesses. Thus, his arguments have been waived. Further, appellant‘s arguments lack merit. The defense admitted in its opening statement that appellant had killed Karen and Rachael. However, the defense maintained that the murders had not been planned and that appellant had simply panicked when the police had arrived at his door. Thus, the issue at trial was whether appellant had committed
{¶ 71} Accordingly, we reject appellant‘s sixteenth proposition of law.
X
{¶ 72} In his seventeenth proposition of law, appellant contends the trial court erred by allowing the state to present evidence of appellant‘s bad character where appellant had offered no evidence of his good character. See
{¶ 73} In this proposition, appellant essentially contends that the testimony complained of in his sixteenth proposition of law was not offered to prove any element of the crimes charged but was offered to portray appellant as mean spirited. However, the testimony at issue in appellant‘s sixteenth proposition of law was clearly offered to demonstrate the element of prior calculation and design. Appellant‘s attempt to categorize the testimony as impermissible character evidence is not persuasive.
{¶ 74} Additionally, appellant argues that the testimony of fellow inmate William Noel Strouse was particularly damaging evidence of appellant‘s bad character. Appellant told Strouse that he (appellant) had cut Aaron‘s throat and that Aaron talks funny now as a consequence of the neck wound. Strouse testified that appellant refers to Aaron as squeaky because of the way Aaron talks. Appellant also told Strouse that he never intended to kill Aaron. According to appellant, Strouse‘s testimony was evidence of appellant‘s bad character. We disagree. At trial, the state was required to prove the charge of attempted
{¶ 75} Accordingly, appellant‘s seventeenth proposition of law is not well taken.
XI
{¶ 76} Having considered appellant‘s propositions of law, we must now review the death sentences for appropriateness (also raised in appellant‘s twenty-fifth proposition of law) and proportionality. Appellant planned to kill his ex-wife and his children. He stabbed Karen to death, slashed Rachael‘s throat and stabbed her repeatedly, resulting in Rachael‘s death, and then attempted to kill Aaron by slicing Aaron‘s throat. Again, we find that the
{¶ 77} In mitigation, appellant presented evidence that he never knew his natural father. Appellant‘s natural mother gave appellant up for adoption when he was nineteen months old. Between 1962, at the age of four, and the date of the mitigation hearing, appellant had no contact with his natural mother. Appellant was placed in a series of different foster homes during the first six and one-half years of his life. During this time, appellant was mistreated and physically abused by one of his foster fathers. Appellant also claims that he was sexually abused as a child. Records indicate that appellant was a seriously maladjusted child in deep psychological turmoil at the age of two. Appellant lived with one foster family, Mary and John Hall, from the time he was six and one-half years old until he reached adulthood. Appellant was one of four children who lived with the Halls during this period, and three of the four (including appellant) ended up in prison.
{¶ 78} Appellant was diagnosed as a diabetic at age sixteen. As an adult, appellant was voluntarily hospitalized at the psychiatric unit of the Knox Community Hospital. He was diagnosed as suffering from a bipolar affective disorder, depressed type, with mood congruent psychotic features, and with antisocial personality traits. Additionally, appellant was diagnosed as suffering from hyperthyroidism. Dr. James Eisenberg, appellant‘s court-appointed psychologist, testified that appellant suffers from a manic depressive mood disorder and a borderline personality disorder. Eisenberg opined that appellant was not insane at the time of the murders and that appellant appreciated the wrongfulness of his conduct. According to Eisenberg, appellant‘s love/hate relationship with women helps to explain the violence he perpetrated against Karen and Rachael on the night of March 30, 1992, and the violence inflicted on Aaron, who appellant considered to be his former mother-in-law‘s favorite grandchild. Eisenberg testified that appellant‘s marriage and relationship with Karen was bound to self-destruct, partially based on Karen‘s personality disorders.
{¶ 79} The evidence in mitigation clearly does not establish the existence of the mitigating factor that appellant lacked a substantial capacity to conform his conduct to the requirements of the law due to a mental disease or defect. See
{¶ 80} In an unsworn statement, appellant apologized for having taken the lives of his ex-wife and his two-year-old daughter, but claimed that he had never intended to kill them. Appellant expressed his love for both of the victims. Appellant stated that he wanted Karen to love him, and that he would never be able to forgive himself for what he had done to Rachael and Aaron. Appellant asked
{¶ 81} The evidence at the mitigation hearing also indicated that appellant would be able to adapt to prison life and function well within the confines of the penal system. We assign this evidence very minimal weight in mitigation. (
{¶ 82} For each of the killings, we have weighed the aggravating circumstance against the evidence presented in mitigation. We find that the aggravating circumstance far outweighs the mitigating factors beyond a reasonable doubt. Indeed, we find that the evidence presented in mitigation absolutely pales in significance to the weight of the aggravating circumstance at issue here.
{¶ 83} Finally, we have undertaken a comparison of the death sentences imposed in this case to those in which we have previously imposed the death penalty. We find that appellant‘s death sentences are neither excessive nor disproportionate in comparison. See, e.g., State v. Kinley (1995), 72 Ohio St.3d 491, 651 N.E.2d 419; State v. Montgomery (1991), 61 Ohio St.3d 410, 575 N.E.2d 167; and State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894.
{¶ 84} For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., TYACK, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
G. GARY TYACK, J., of the Tenth Appellate District, sitting for WRIGHT, J.
APPENDIX
{¶ 86} Proposition of Law No. 2: When a trial court receives and considers victim requests for the death penalty, a resulting sentence of death is unreliable in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
{¶ 87} Proposition of Law No. 3: Where the trial court fails to give an instruction which contains accurate information relevant to a potential sentencing alternative in response to a capital sentencing jury‘s inquiry on possible life sentences, the trial court diminishes the reliability of the jury‘s determination that death was the appropriate punishment, in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.
{¶ 88} Proposition of Law No. 4: When a trial court applies an incorrect standard in death qualifying jurors and fails to excuse for cause a juror who expresses her inability to fairly consider the evidence, a resulting conviction violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution as well as Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.
{¶ 89} Proposition of Law No. 5: When the trial court erred in failing to excuse for cause prospective jurors that were biased and partial, it violated appellant‘s rights to an impartial jury, fair trial and due process as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States
{¶ 90} Proposition of Law No. 6: Where a criminal conviction rests on the testimony of a five year old witness and the witness is not competent to testify, the defendant is deprived of a fair trial in violation [of] the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.
{¶ 91} Proposition of Law No. 7: When gruesome and prejudicial photographs are admitted into evidence even though their prejudicial effect outweighs their probative value a capital defendant is denied his rights to a fair trial, due process and a reliable determination of his guilt and sentence as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
{¶ 92} Proposition of Law No. 8: When a capital sentencing jury is not properly instructed, and receives erroneous instructions, the defendant is denied a fair and reliable sentence in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
{¶ 93} Proposition of Law No. 9: When a trial court in a capital case fails to define mitigation, fails to instruct on the specific mitigating factors presented by the capital defendant, and fails to instruct the jury on the function, purpose and weight of defendant‘s mitigating evidence it violates the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, 16 and 20 of the Ohio Constitution[.]
{¶ 94} Proposition of Law No. 10: The statements and instructions from the court, the prosecutor and defense counsel that the jury‘s verdict at the penalty phase was only a recommendation violated the Eighth and Fourteenth Amendments
{¶ 95} Proposition of Law No. 11: When a capital defendant presents expert psychological testimony relevant to the mitigating factors in
{¶ 96} Proposition of Law No. 12: Trial counsel‘s acts and omissions in their representation of Mr. Allard deprived him of the effective assistance of counsel as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10, and 16 of the Ohio Constitution.
{¶ 97} Proposition of Law No. 13: When prosecutorial misconduct permeates a capital trial, the defendant is denied his due process right to a fair trial in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.
{¶ 98} Proposition of Law No. 14: Where the trial court errs in admitting into evidence an exhibit that is irrelevant, prejudicial, confusing and misleading, it violates that defendant‘s rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 9 and 16 of the Ohio Constitution, and
{¶ 99} Proposition of Law No. 15: The admission of victim impact evidence at the trial phases which does not also serve to prove the elements of the crime, violates the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.
{¶ 101} Proposition of Law No. 17: It is reversible error in a capital prosecution for the state, in violation of
{¶ 102} Proposition of Law No. 18: When a trial court permits the prosecuting attorney to elicit improper rebuttal testimony and present argument of non-statutory aggravating circumstances at the mitigation phase of trial, it prejudices a capital defendant in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, 10 and 16 of the Ohio Constitution.
{¶ 103} Proposition of Law No. 19: The statutory definition of reasonable doubt in
{¶ 104} Proposition of Law No. 20: When a trial court fails to conduct a relevancy determination for each exhibit prior to its readmission into evidence at the penalty phase of a capital trial, it commits prejudicial error, undermines the reliability of the capital sentencing process and is in violation of a capital defendant‘s rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.
{¶ 106} Proposition of Law No. 22: When a trial [court] fails to consider and give effect to relevant mitigating evidence, a resulting sentence of death, violates the Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, 16 and 20 of the Ohio Constitution.
{¶ 107} Proposition of Law No. 23: A prosecutor‘s systematic use of peremptory challenges to exclude all prospective jurors with some reservations about the death penalty violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 5, 10 and 16, Article I of the Ohio Constitution.
{¶ 108} Proposition of Law No. 24: A trial court denies a capital defendant the right to a fair and impartial jury when it denies him the ability to adequately voir dire potential jurors with a comprehensive questionnaire. Sixth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.
{¶ 109} Proposition of Law No. 25: The trial court erred by imposing the death penalty on appellant Allard as that punishment is inappropriate for him in violation of the Eighth and Fourteenth Amendments to the United States Constitution; Article I, Sections 9 and 16 of the Ohio Constitution; and
{¶ 110} Proposition of Law No. 26: Ohio‘s review process fails to [e]nsure against the disproportionate imposition of the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
{¶ 112} Proposition of Law No. 28: The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution establish the requirements for a valid death penalty scheme.