Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
T HE TATE OF , A PPELLEE , v. B EY , A PPELLANT .
[Cite as
State v. Bey
,
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 97-2247—Submitted February 9, 1999—Decided May 19, 1999.) A PPEAL from the Court of Appeals for Lucas County, No. L-94-003. __________________
{¶ 1} This appeal stems from the conviction and death sentence of Gregory L. Bey, alias Gregory L. Bryant-Bey, defendant-appellant, for the aggravated murder and the aggravated robbery of Dale Pinkelman. Pinkelman’s body was found near a back office inside Pinky’s
Collectibles (“Pinky’s”), a retail store opened by Pinkelman that sold various items, including watches. His shoes were lying next to his body, but his trousers were missing. Deputy Coroner Cynthia Beisser concluded that Pinkelman died within a few minutes “as a result of a [single] stab wound to the chest.” Although when found Pinkelman’s body still wore a gold necklace and a ring and a watch on each hand, merchandise was missing from the store’s inventory. And despite the fact that Pinkelman customarily left $100 in loose currency in the register drawer and then placed the drawer in a storage room, the register was open, and the cash drawer, still in the register, had no visible currency. Additionally, Pinkelman’s station wagon, which had been parked in front of the store the previous day, was missing. Police found an unknown fingerprint and palmprint on top of a glass
display case approximately three feet in front of Pinkelman’s body. Police also recovered Pinkelman’s abandoned station wagon. But police never found Pinkelman’s trousers or the murder weapon.
{¶ 5} The Pinkelman homicide remained unsolved until Toledo police arrested Bey three months after the Pinkelman murder for the aggravated murder of Peter Mihas. Police were called to a Toledo restaurant, after Mihas, the restaurant owner, was found stabbed to death. Toledo Detective William Gray immediately noticed similarities between the Mihas homicide and the unsolved Pinkelman homicide. The trousers of both victims had been removed, and their shoes were lying next to their bodies. And both victims were owners of small businesses who were robbed and killed by being stabbed in the chest when they were evidently alone at their businesses. Additionally, both victims still had jewelry on their persons. Police interviewed Bey regarding the Mihas homicide, and Bey
admitted that he had killed Mihas. Then, after Bey’s fingerprints and palm prints were taken, his prints were found to match the latent prints found on top of the glass case in Pinky’s. And Bey lived two blocks from where police had found Pinkelman’s station wagon. The next day, police interviewed Bey concerning the Pinkelman
homicide. Bey at first denied ever meeting Pinkelman and ever being in Pinky’s. Then Bey admitted that he had purchased a watch at Pinky’s as a gift for his wife. He stated that he “owed” Pinkelman around $300 for the watch and that he “was asking [Pinkelman] for some time,” but that Pinkelman “dogged” him for money. When asked if he had harmed Pinkelman or if he had taken his car, Bey said that he did not remember. Bey then refused to talk any further. The grand jury indicted Bey on four counts. Counts I and III charged
the aggravated murder of Pinkelman and Mihas, respectively, under R.C.
2903.01(B), and both counts contained a death-penalty specification under R.C.
2929.04(A)(7), charging aggravated murder in the course of an aggravated robbery
and naming Bey as the principal offender. Counts II and IV charged the aggravated
robbery against Pinkelman and Mihas, respectively, and each contained a prior
felony-conviction specification. The trial court granted Bey’s motion to sever.
Bey was then separately tried for and convicted of the aggravated
felony-murder and aggravated robbery of Mihas and sentenced to life
imprisonment. See
State v. Bryant-Bey
(Mar. 10, 1995), Lucas App. No. L-93-184,
unreported, 1995 WL 96783, discretionary appeal denied (1995), 73 Ohio St.3d
1411,
__________________
Craig T. Pearson, Lucas County Assistant Prosecuting Attorney, for appellee.
Jeffrey M. Gamso and Spiros P. Cocoves , for appellant.
__________________ OOK , J . In this appeal, Bey advances twenty-two propositions of law. (See
Appendix, infra .) We have considered each of Bey’s propositions of law, independently weighed the aggravating circumstance against mitigating factors, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm Bey’s convictions and the sentence of death.
I. Other Acts Issues A. Proposition of Law I {¶ 11} In proposition of law I, Bey asserts that the trial court erred by admitting “other acts” evidence under Evid.R. 404(B) that Bey murdered Mihas. Bey argues that the trial court’s pretrial judgment entry on Bey’s motion to exclude any evidence relating to other crimes, wrongs, or acts failed to include an explicit Evid.R. 403 analysis regarding whether the prejudicial impact of the “other acts” evidence outweighed its probative value. Bey argues that the evidence of the Mihas murder should not have been admitted for any Evid.R. 404(B) reason because it is too prejudicial. Evid.R. 403(A) establishes a standard but does not require a trial
court to explicitly state in its judgment entry that the probative value of the “other acts” evidence outweighs its prejudicial impact. As for whether the trial court should have excluded the evidence of
the Mihas murder, we first note that “[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.”
State v. Sage
(1987),
is not admissible to prove” a defendant’s criminal propensity. “Other acts”
evidence is admissible, however, if “(1) there is substantial proof that the alleged
other acts were committed by the defendant, and (2) the evidence tends to prove
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.”
State v. Lowe
(1994),
“other act” because Bey admitted that he had killed Mihas and was convicted of
that crime. Second, the “other act” evidence established a “behavioral fingerprint”
linking the appellant to the crime due to the common features shared by the Mihas
homicide and the Pinkelman homicide. See
Lowe
, 69 Ohio St.3d at 531, 634
N.E.2d at 619-620. The deaths of Mihas and Pinkelman occurred under practically
identical circumstances. As the trial court noted, both victims were businessmen
who were killed at their place of business, evidently in the absence of customers or
employees. Both died after being stabbed in the chest by a knife. Uniquely, both
men had their trousers removed and their shoes were placed next to their bodies.
And although both businesses were robbed, jewelry was left on each person.
Admittedly, some differences existed because, unlike Pinkelman,
Mihas suffered other stab wounds and the knife was left in Mihas’s body. Also,
Mihas’s trousers, with the pockets turned out, were found at the crime scene.
Nonetheless, “[a]dmissibility is not adversely affected simply because the other
robberies differed in some details.”
Jamison
,
because other evidence was available to prove identity is meritless because we have
recognized that “need is irrelevant to an Evid.R. 404(B) objection.”
State v.
McNeill
(1998),
B. Proposition of Law II In proposition of law II, Bey argues that the trial court erred in
admitting the “other acts” evidence regarding the Mihas homicide because his conviction for the Mihas homicide was obtained on the basis of evidence that should have been suppressed. During the Mihas trial and appeal, Bey unsuccessfully sought to suppress his confession that he killed Mihas and to suppress evidence from a hotel search. Bey attempts to resurrect this claimed suppression error in order to prevent the admission in this case of his Mihas conviction. We, however, find that Bey’s argument lacks merit. Bey is collaterally estopped from relitigating the issue of whether the
evidence admitted at the Mihas trial was admitted in error because this issue was
already fully and finally litigated by the same parties involved in this case — the
state and Bey.
State v. Bryant-Bey
,
supra
. See
Thompson v. Wing
(1994), 70 Ohio
St.3d 176, 183, 637 N.E.2d 917, 923 (“Collateral estoppel [issue preclusion]
prevents parties * * * from relitigating facts and issues in a subsequent suit that
were fully litigated in a prior suit.”);
Scholler v. Scholler
(1984),
issue, the record in this case does not contain the evidence necessary to review his
claim that the trial court erred in the Mihas trial by failing to suppress certain
evidence.
[1]
And “[a] reviewing court cannot add matter to the record before it
* * *.”
State v. Ishmail
(1978),
C. Proposition of Law III In proposition of law III, Bey asserts that his counsel during the
Mihas trial was ineffective in failing to raise certain suppression arguments and that, due to the ineffectiveness, Bey was prejudiced not only in the Mihas trial but also in this case because he was convicted in the Mihas trial based on the admitted evidence and because the evidence of his conviction was presented in this case. We reject Bey’s assertion.
1. Bey did file an oral motion to suppress his statements about Pinkelman. The transcript at page 3 of the September 27, 1993 suppression hearing refers vaguely to a stipulation as to the “testimony taken and the evidence in the previous hearing.” That evidence and testimony, however, are not included in this record of trial. Bey is collaterally estopped from relitigating this issue. See
Scholler
,
D. Proposition of Law IV In proposition of law IV, Bey argues that the trial court erred in
instructing the jury during voir dire to limit consideration of the “other acts” evidence “for the sole purpose relating to the element of identity.” But the trial court issued the instruction at Bey’s request. We find no error. Trial courts customarily give this type of instruction when “other
acts” evidence is introduced to ensure that juries understand the limited purpose of
such evidence. See 4 OJI (1997) 30, Section 402.61;
State v. Flonnory
(1972), 31
Ohio St.2d 124, 126-129,
{¶ 25}
Even if the trial court had erred by instructing the jury, Bey could
not complain because he invited the error by requesting the instruction. Under the
invited-error doctrine, “[a] party will not be permitted to take advantage of an error
which he himself invited or induced.”
Hal Artz Lincoln-Mercury, Inc. v. Ford
Motor Co.
(1986),
E. Proposition of Law V In proposition of law V, Bey claims that he received ineffective
assistance of counsel based upon his counsel’s decision to request that the “other acts” instruction be given to the jury during voir dire. We determine that Bey’s claim is without merit. First, counsel’s decision to request such a cautionary instruction
represented a reasonable professional judgment. The trial judge had already ruled
the “other acts” evidence admissible. Counsel understood the impact that the “other
acts” evidence might have in this case, knew that the prosecution would introduce
such evidence, and chose to take the “sting” out of the evidence by disclosing it
early. See
State v. Tyler
(1990),
must still fail because Bey has failed to demonstrate prejudice. “The defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland
,
II. Prosecutorial Misconduct
A. Proposition of Law VI
In proposition of law VI, Bey alleges that the prosecutor committed
misconduct based on his remarks during guilt-phase closing arguments. We
initially note that Bey failed to object to some of the instances of alleged
prosecutorial misconduct, thereby waiving all but plain error. Crim.R. 52(B).
Regarding the remarks to which Bey did object, we must determine (1) whether the
prosecutor’s remarks were improper, and if so, (2) whether the remarks
prejudicially affected Bey’s substantial rights.
State v. Smith
(1984), 14 Ohio St.3d
13, 14, 14 OBR 317, 318,
effect that a conviction would have on the community” and that this call for the jury
to convict in response to public demand is forbidden. In fact, the prosecutor simply
and correctly noted, without defense objection, that “[t]he effects of this murder *
* * are far reaching, not only to the family members, but throughout our
community. But the faith in justice, the faith in the justice system depends on all
of you doing your jobs * * * as sworn jurors * * * to follow the law.” Prosecutors
can legitimately call for justice or ask jurors to do their duty. See
State v. Slagle
(1992),
on opposing counsel when he said, “When a skilled attorney, much like Mr.
Wingate [Bey’s counsel], is stuck with this overwhelming evidence * * * he is left
with only one alternative, to try to create or implant some doubt * * *, confuse
issues, create a cloud of doubt.” At the outset, counsel objected to the “skilled
attorney” reference. The prosecutor’s remarks about confusing the issues or
creating doubt arguably denigrated defense counsel. See
State v. Keenan
(1993),
“[T]his detective knows [that Bey] is guilty, and don’t let Mr. Wingate [Bey’s counsel] have any of you think otherwise.” Bey, however, objected to the remark, and the trial court sustained the objection. Thereafter, Bey never asked for a cautionary instruction. Fourth, Bey asserts that the prosecutor wrongly referred to facts not
in evidence by asserting that an event happened “approximately four hours after the
Pinkelman homicide occurred.” Yet, the trial court correctly rejected Bey’s
objection. The time of the victim’s death could be inferred. See
State v. Smith
(1997),
prejudicial error.
State v. Frazier
(1995),
B. Proposition of Law VII In proposition of law VII, Bey alleges that the prosecutor committed
misconduct based on various remarks made during sentencing-phase opening and
closing arguments. Bey, however, failed to object at trial on most of the issues he
now raises and thus waived all but plain error. See
Slagle
,
objection that a life sentence was appropriate, “if this defendant presents enough of
these mitigating factors to outweigh the sheer horridness of his conduct when he
took Mr. Pinkelman’s life, the aggravating circumstances.” With this remark, the
prosecutor wrongly described the weighing process because the state has the burden
of proof. The prosecutor also wrongly suggested that weighing hinges on the
number
of mitigating factors. Later in his argument, again without objection, the
prosecutor stressed the facts of the crime as “obviously an aggravating set of
circumstances.” We condemn such remarks because they improperly suggested
that “the nature and circumstances of the offense are ‘aggravating circumstances.’
” See
State v. Wogenstahl
(1996),
and correctly and explicitly identified the relevant aggravating circumstance. The
court’s instructions on the law cure alleged misstatements of law by the parties.
See
Loza
,
the jury’s verdict as a “recommendation,” since the trial court had discouraged the
use of that term. We agree; however, the prosecutor’s reference did not violate the
Constitution and no prejudicial error occurred. See
State v. Carter
(1995), 72 Ohio
St.3d 545, 559,
and his family turned victim-impact commentary into an aggravating circumstance.
The prosecutor commented that “Dale Pinkelman will not be able to run his
business anymore or engage in life’s little pleasures, and * * * spend the rest of [his
life] * * * with his family.” Later, the prosecutor stated that “the loss experienced
by the family and the community * * * as it relates to Dale Pinkelman can’t be
described.” Again, Bey did not object. As we have held before, “brief, general
statements by the prosecutor that [a victim] had a life, a job, and a family” are not
outcome-determinative plain error.
McNeill
,
appellant’s future dangerousness as a non-statutory aggravating circumstance.”
Instead, the prosecutor reviewed the defense evidence as to Bey’s “history,
character, and background” in responding to defense arguments regarding Bey’s
rehabilitation potential. A prosecutor may state an opinion based on evidence at
trial,
Tyler
, 50 Ohio St.3d at 41, 553 N.E.2d at 595, and respond to defense
arguments. See,
e.g.
,
State v. Rogers
(1986),
emotional outburst during sentencing argument. The prosecutor commented that
“[e]ven in a structured environment, [Bey] * * * can still not cope with stress.
We’ve all seen that.” A prosecutor may comment on a defendant’s physical
appearance and likewise may make relevant comments upon a defendant’s
emotional outburst in open court before the jury. See
State v. Lawson
(1992), 64
Ohio St.3d 336, 347,
986, here “the prosecutor did err by referring to statutory mitigating factors not
raised by the defense, when he explained why those statutory mitigating factors
were not present.” As we have repeatedly noted, the trial court should instruct, and
counsel should comment, only on mitigating factors specifically raised by an
accused. See
Hicks
,
and (C) deal with mitigation and were designed to enable
the defendant
to raise
issues in mitigation and to facilitate his presentation thereof. If the defendant
chooses to refrain from raising some of or all of the factors available to him, those
factors not raised may not be referred to or commented upon by the trial court or
the prosecution. When the
purpose
of these sections is understood, it is clear that
such comment is appropriate only with regard to those factors actually offered in
mitigation by the defendant.” (Emphasis
sic
.)
DePew,
did not contribute unfairly to the death verdict and did not create outcome-
determinative plain error. Cf.
Landrum
,
III. Sentencing Instructions
A. Proposition of Law VIII
In proposition of law VIII, Bey argues that the trial court committed
prejudicial error in its sentencing-phase instructions. Bey complains that the trial
court improperly (1) defined mitigating factors, (2) listed all statutory mitigating
factors, and (3) informed the jury that it could consider life imprisonment sentences
only after it had rejected a death sentence or could not agree on the sentence. Bey
concedes, however, that he did not object to the instructions as given. And his
failure to object to the jury instructions constituted a waiver of all but plain error.
State v. Underwood
(1983),
factors are factors that, while they do not justify or excuse the crime, nevertheless,
in fairness and mercy, may be considered by you as extenuating or reducing the
degree of the defendant’s blame of [
sic
] punishment.” In
State v. Lawrence
(1989),
44 Ohio St.3d 24, 29, 541 N.E.2d 451, 457, we criticized similar penalty
instructions and found that the reference to blame, when combined with other
errors, was prejudicial. Mitigation is not about blame or culpability, but rather
about punishment. See
State v. Holloway
(1988),
factors, even though the evidence related only to one factor—R.C. 2929.04(B)(7)
“other factors.” See
Hicks
,
a single juror could prevent a death-penalty recommendation in accordance with
State v. Brooks
(1996),
B. Proposition of Law IX In proposition of law IX, Bey argues that his trial counsel’s failure
to object to the erroneous sentencing instructions, as discussed in proposition VIII,
constitutes ineffective assistance of counsel. Bey failed, however, to demonstrate
prejudice, namely, “a reasonable probability that, were it not for counsel’s errors,
the result of the trial would have been different.”
Bradley
,
IV. Proposition of Law X In proposition of law X, Bey argues that he was denied his due
process rights because the trial court did not,
sua sponte
, “conduct an inquiry as to
whether he knowingly and intelligently waived his right to testify at trial.”
Generally, the defendant’s right to testify is regarded both as a
fundamental and a personal right that is waivable only by an accused. See,
e.g
.,
Rock v. Arkansas
(1987), 483 U.S. 44, 107 S.Ct. 2704,
or was unaware of his right to testify or that Bey’s counsel failed to advise him of his right. Nothing suggests that Bey wanted to testify and was denied the opportunity to do so. In fact, the trial judge in this case instructed the jury about Bey’s constitutional right not to testify. Because we have determined that a trial court is not required to advise a defendant of his right to testify, the trial court’s failure to do so cannot constitute error. Bey’s proposition of law X is overruled.
V. Accused’s Outburst A. Proposition of Law XI {¶ 55} In proposition of law XI, Bey argues that the trial court erred by failing to grant a mistrial or to voir dire jurors after an emotional outburst by him during the prosecutor’s sentencing-phase closing argument. Bey’s outburst occurred when the prosecutor was responding to the
testimony of Bey’s expert witness and to the content of Bey’s unsworn statement. The prosecutor stated that, when Bey read his written statement to the jury, he was “attempting to show remorse for what happened, blaming his mother and his family.” Despite the fact that the trial judge had previously cautioned counsel about Bey’s in-court behavior, Bey interrupted the prosecutor’s sentencing argument and asserted, “Hey, don’t you talk about my mother.” After the trial judge cautioned him, Bey responded, “You would have me * * * removed. You don’t talk about my mother.” The jury was then removed, and Bey’s counsel asked for (1) a
mistrial, (2) an individual voir dire, and (3) an opportunity to apologize to the jury. The trial court denied a mistrial and denied any further voir dire of the jury, but allowed the defense to apologize to the jury. We cannot determine that the trial judge erred in denying Bey’s
request. The trial judge could best determine whether Bey’s right to a fair trial was
compromised or whether voir dire of the jury was necessary. We have long
recognized that for witnesses and spectators, the “impact of emotional outbursts
* * * cannot be judged * * * on a cold record.”
Hill
,
{¶ 59}
In addition, the judge did not need to instruct the jury to disregard
the outburst. Bey created the outburst, so he may not persuasively argue that he is
entitled to a mistrial or an instruction to the jury to disregard his own behavior. “A
party cannot take advantage of an error he invited or induced.”
Seiber
, 56 Ohio
St.3d at 17,
B. Proposition of Law XII In proposition of law XII, Bey argues his counsel was ineffective for
failing to request that the court instruct the jury to disregard Bey’s outburst. But
counsel did “request an admonition to the jurors that the outburst should not be
considered * * * in any form.” And the trial judge denied it. Bey’s counsel did not
fail to act and, thereby, cause him prejudice. See
Strickland
,
VI. Proposition of Law XIII In proposition of law XIII, Bey argues that the trial court erred in
rejecting various pretrial motions. Those motions lacked merit, as set forth below, and therefore the trial court did not err. First, Bey argues that the trial court erred by denying his motion to
“prohibit death qualification of the jury unless and until the state shows probable
cause to believe the case will go to a mitigation hearing.” But the trial court need
not defer the process of death qualification of a jury until the sentencing phase. See
State v. Jenkins
(1984),
dismiss the death specification because Ohio’s death penalty law is
unconstitutional. But the trial court did not err in refusing to dismiss the death-
penalty specification because we have repeatedly held that Ohio’s death penalty
statute is not unconstitutional. See,
e.g.
,
Jenkins
,
his motions for pretrial disclosure of witness statements and for individually
sequestered voir dire. The trial court, however, does not need to require pretrial
disclosure of witness statements. See Crim.R. 16;
State ex rel. Steckman
, 70 Ohio
St.3d at 428,
VII. The Death Penalty A. Propositions of Law XIV and XV In propositions of law XIV and XV, Bey argues that imposing the death penalty upon him is cruel and unusual punishment and that, in his case, it “can only be viewed as freakish, capricious and arbitrary.” Bey’s argument relies on three main facts: the death penalty had not been carried out in over thirty years in Ohio; no one had even been sentenced to die in Lucas County for seven years; and he received a life sentence in the Mihas trial, but a death sentence in this trial. Despite these facts, we reject both propositions as lacking merit. Ohio’s death penalty statute is constitutional “in all respects,” State
v. Evans
(1992),
court in a Lucas County case between 1986 and 1993 does not affect Bey’s death
sentence. A “finding that the death penalty is imposed in a discriminatory fashion
[cannot occur] absent a demonstration of specific discriminatory intent.”
Zuern
, 32
Ohio St.3d 56,
does not mean that he cannot receive a death sentence in this case. The Mihas
jury’s finding that aggravation did not outweigh mitigation for
that
crime does not
compel the same finding as to
this
crime. The Pinkelman jury knew that Bey had
also murdered Mihas, and Bey’s record of criminal behavior is relevant to
consideration of the mitigating value of his history, character, and background. See
State v. Waddy
(1992),
B. Proposition of Law XVI In proposition of law XVI, Bey argues that the trial judge erred in
sentencing Bey to death by electrocution because R.C. 2949.22 gives Bey a choice between death by lethal injection and death by electrocution. The trial judge did order “death by electrocution,” but the trial judge also included the language “ in the manner and place directed by the provisions of Section 2949.22 of the Revised Code.” (Emphasis added.) R.C. 2949.22(A) provides that a death sentence shall be executed by electrocution; however, R.C. 2949.22(B)(1) provides that any person sentenced to death may “elect” to be executed by lethal injection. Bey’s statutory right to elect lethal injection was not precluded by the trial judge’s order, especially considering the trial judge’s express statement that Bey’s execution comply with R.C. 2949.22. Accordingly, Bey’s proposition of law XVI is overruled.
C. Proposition of Law XVII We summarily reject Bey’s proposition of law XVII, which
challenges Ohio’s system of proportionality review.
State v. Moore
(1998), 81
Ohio St.3d 22, 39,
D. Proposition of Law XVIII In proposition of law XVIII, Bey argues that his trial counsel
provided ineffective assistance by failing to raise the proportionality review issue, thereby waiving that review. But Bey is mistaken; counsel raised the issue before trial. Bey’s counsel therefore did not act improperly. Nonetheless, we have summarily rejected the challenge of Ohio’s system of proportionality review supra . Bey’s proposition of law XVIII is overruled.
E. Proposition of Law XIX In proposition of law XIX, Bey makes generalized claims that his
counsel provided ineffective assistance based on the failure to raise legitimate
objections at trial and that Bey thereby suffered serious prejudice. Bey, however,
fails to cite any specific failure to object and fails to explain how he was prejudiced
beyond what we have already addressed. By failing to cite examples of asserted
ineffectiveness, Bey has failed to demonstrate either his counsel’s deficient
performance or prejudice arising from the deficient performance. Both are required
to prove ineffective assistance of counsel. See
Bradley
,
VIII. Previous Sentencing Opinions A. Proposition of Law XX In proposition of law XX, Bey argues that the court of appeals erred in affirming the death penalty for Bey because it applied the wrong standard when weighing the specified aggravating circumstance against the mitigating factors and failed to appropriately consider the mitigating factors offered. Although the court of appeals did mistakenly comment that “the
combined [mitigating] factors * * * are insufficient to outweigh the aggravating
circumstance,” the error is harmless. The court of appeals correctly acknowledged
the state’s burden to prove that the aggravating circumstance outweighed the
mitigating factors. Moreover, the entire opinion shows that the court of appeals
understood and applied the correct standard. See
State v. Hill
(1995), 73 Ohio St.3d
433, 437-439,
did not consider and give appropriate weight to Bey’s mitigating factors—his
existing life sentence for the Mihas murder, his remorse, and his prospects for
serving a useful role during incarceration. “ ‘ The process * * *, as well as the
weight, if any, to assign a given factor is a matter for the discretion of the individual
decisionmaker.’ ”
Taylor
,
B. Proposition of Law XXI In proposition of law XXI, Bey asserts, inter alia , deficiencies in the
trial court’s sentencing opinion. First, Bey argues that the trial court did not understand mitigating factors because it explained that Bey’s history and background “did not control or compel the Defendant into his life of crime and violence.” Second, Bey complains that the trial court wrongfully discounted his remorse and intent to change his life. Third, Bey complains that the trial court did not give “any weight” to his already existing life sentence. We find these arguments to lack merit. The trial court’s evaluation
of the mitigating factors falls within the trial court’s sentencing discretion, and just
because an item of evidence is admissible does not mean that the trial court must
give it weight. See
Steffen
, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383,
paragraph two of the syllabus;
State v. Lott
(1990),
an aggravating circumstance. The trial court, in explaining why the aggravating
circumstance outweighed the mitigating factors, dramatized the murder when it
wrote: “Without warning, [Bey] thrust his silent and deadly knife into the heart of
the victim. As the victim’s life blood drained into his chest cavity, [Bey] then
dehumanized the helpless dying victim by removing his trousers and ritualistically placing his shoes near the body as if the deceased were an object or trophy. [Bey]
seized the spoils of his violent and deadly act and then fled the scene.”
But the trial court’s description, though colorful, was accurate. And
the trial court has the responsibility to examine the nature and circumstances of the
offense to determine whether they are mitigating. See
Wogenstahl
, 75 Ohio St.3d
at 354-355,
IX. Appropriateness of Death Penalty—Propositions of Law XXI and XXII {¶ 82} In propositions of law XXI and XXII, Bey argues that the aggravating circumstance does not outweigh the mitigating factors and that the death penalty is inappropriate and disproportionate. We will consider Bey’s arguments as part of the independent sentence evaluation, infra .
X. Independent Sentence Evaluation We independently review Bey’s death sentence for appropriateness
and proportionality. We find that the evidence proves beyond a reasonable doubt the
aggravating circumstance charged against Bey, R.C. 2929.04(A)(7). The evidence demonstrates that Bey, as the principal offender, purposely killed Pinkelman and that he did so during an aggravated robbery. In mitigation, Dr. Barbara McIntyre, a psychologist, testified on
Bey’s behalf. She was able to interview Bey and testified that, although apprehensive at first, Bey was polite and cooperative throughout the interview. The interview revealed information about Bey’s history and background. Bey was born in Toledo, but his birth mother abandoned him as a baby. He was then adopted by a woman he thought was his birth mother and raised in New York. His adoptive mother was very strict, very demanding, and very abusive, physically and emotionally. She beat him regularly. In the fourth grade, Bey ran away and attempted to walk back to Toledo. When he was thirteen, his birth mother traveled to New York in order to take Bey back to Toledo. But shortly after arriving in Toledo, she again abandoned him, leaving him with her former husband who was not Bey’s father. Bey later learned of the identity of his father, but not until after his father had died. Although Bey was part of a rather large family, many of whom lived in Toledo, he still always felt alone in the world and as if there was no one whom he could trust. Bey graduated from high school and “attended some college courses
off and on,” but did not complete a degree program. He was married twice and fathered two children, but neither marriage was successful. He has been employed in many fields and at many places, rarely being unemployed for more than several weeks at a time. Bey spent two years in the Air Force, but was apparently discharged for “inability to cope with stress” and “verbal belligerence.” Bey admitted that he began using drugs while a junior in high school. He stated that he turned to drugs and alcohol in an effort to control the anger he felt at everybody. Although Bey worked steadily at a succession of jobs, he admitted stealing to support his drug habit and for the adventure of stealing. McIntyre noted that Bey “has no juvenile criminal record.” But she further noted that his criminal record as an adult included convictions for felonious assault and for stealing, which was upgraded to a felony due to his many misdemeanors. McIntyre administered a battery of psychological tests and
concluded that Bey had no major mental illness or psychiatric problems. She noted, however, that the tests showed that he was suffering from “long term, chronic, low- level depression” and that he had a serious personality disorder with antisocial and paranoia features. She further noted that Bey had few resources for coping with stress, was very impulsive, and became overwhelmed with negative emotions such as anger or pain. McIntyre testified in sum that Bey was a “man with a near life- long history of psychological and behavioral problems.” Yet she believed that Bey could change and that he wanted to get rid of the hate and anger in his life. Bey had been reading The Bible, The Autobiography of Malcolm X, and psychology and philosophy books and stated that they had been helpful in changing his attitudes. He expressed his desire to accomplish something with his life and hoped to be of help to younger men in prison. McIntyre concluded that Bey had work to do in order to change, but that he is interested in doing the work for himself and for others.
{¶ 89} In addition, Bey gave an unsworn statement. He stated that he “was sorry for all the hurt” that he had caused and that his life had been “nothing but a struggle * * * a struggle that [he had] lost.” Further he stated, “[w]ith my deepest sympathy to those whose lives have been touched by this tragedy, I ask God for his forgiveness. I’m sorry for the incident and my heart will always have to regret it.” At the time of sentencing, Bey expressed sorrow for the Pinkelman family and stated again that he wanted to live and help others in prison. Bey also appeared to question whether the evidence proved that he killed Pinkelman. After reviewing the evidence in mitigation, we find that the nature
and circumstances of the offense do not reveal any mitigating value. The evidence shows that Bey attacked, robbed, and killed a defenseless shopkeeper on a Sunday evening. As Pinkelman lay on the floor, bleeding to death, Bey ransacked his store, taking money from the register, merchandise from the store, and finally the victim’s car from the parking lot. We now review the mitigating value of Bey’s history, character, and
background. In light of Bey’s criminal history disclosed in McIntyre’s testimony, we find nothing mitigating in Bey’s character. In contrast, Bey’s history and background reflect some mitigating features entitled to modest weight. Bey, abandoned as a baby and raised in an abusive atmosphere, lacked parental nurturing, a stable home, and the parental love and affection needed for proper development. Nonetheless, Bey graduated from high school, attended some college, and worked steadily in a succession of jobs. Although he had no mental disease or defect qualifying under R.C. 2929.04(B)(3), he suffered from long-term depression and had a serious personality disorder with antisocial and paranoia features. Eventually, Bey turned to drugs and alcohol in an effort to alleviate his problems, but these only made matters worse. As for the statutory mitigating factors listed in R.C. 2929.04(B),
first, the R.C. 2929.04(B)(1) and (2) statutory mitigating factors are inapplicable given the record before us. R.C. 2929.04(B)(3) is inapplicable because the testimony from McIntyre, the defense psychologist, did not attempt to establish the “mental disease or defect” mitigating factor. Additionally, we do not find that Bey’s mental disorder caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. R.C. 2929.04(B)(4) is inapplicable because, at the time of the offense, Bey was thirty-seven years old. R.C. 2929.04(B)(5) is not applicable to this case and, because there is no evidence in the record suggesting another principal offender, neither is R.C. 2929.04(B)(6). Bey, however, argues that “other” R.C. 2929.04(B)(7) factors exist
in his case and that these factors are strong mitigating factors that render the death penalty both inappropriate and disproportionate. The factors, however, on which Bey relies are not compelling. First, Bey argues that residual doubt is a strong mitigating factor in
this case. Bey contends that such doubt should not be discounted because his
conviction predates
McGuire
,
against the R.C. 2929.04(A)(7) aggravating circumstance—aggravated murder committed as the principal offender in the course of aggravated robbery, that the aggravating circumstance outweighs the modest mitigating factors beyond a reasonable doubt. Accordingly, the death sentence in this case is statutorily appropriate. Bey’s proposition of law XXI is overruled. Last, we find that the death penalty imposed in this case is neither
excessive nor disproportionate when compared with similar cases in which the
offender committed aggravated murder in the course of aggravated robbery,
especially considering that many comparable cases have had stronger mitigating
evidence. See,
e.g.
,
McNeill
,
{¶ 99} For the foregoing reasons, we affirm Bey’s convictions and death sentence.
Judgment affirmed. D OUGLAS , G RADY , F.E. WEENEY and L UNDBERG S TRATTON , JJ., concur. M OYER , C.J., and P FEIFER , J., concur in judgment only.
T HOMAS J. G RADY , J., of the Second Appellate District, sitting for R ESNICK , J.
__________________
APPENDIX
{¶ 100} “ FIRST PROPOSITION OF LAW: A trial court errs when it permits the State to introduce evidence that a criminal defendant committed another offense, under Evid.R. 404(B), without first conducting an analysis of whether the prejudicial impact of the evidence outweighed its probative value. “ SECOND PROPOSITION OF LAW: A trial court errs in
admitting evidence of a defendant’s involvement in another criminal offense when the conviction in that offense was obtained on the basis of evidence which should have been suppressed. “ THIRD PROPOSITION OF LAW: A criminal defendant
receives ineffective assistance of counsel when his trial attorney does not object to, and actually assents to, admission of prejudicial evidence which should have been suppressed. “ FOURTH PROPOSITION OF LAW: A trial court commits
prejudicial error when it instructs the jury, during individual voir dire, of the State’s intention to use other acts evidence during its case in chief. “ FIFTH PROPOSITION OF LAW: When a criminal
defendant’s trial counsel encourag[e] the trial court to instruct the venire, during individual voir dire, of the State’s intention to use other acts evidence during its case in chief, trial counsel violat[e] the constitutional duty to provide their client with effective assistance of counsel. “ SIXTH PROPOSITION OF LAW: A prosecutor in a capital
case commits misconduct resulting in denying a criminal defendant a fair trial when, during closing argument at the guilt or innocence phase of the trial, he (1) urges the jury to consider the effect on the community of the offense and of their verdict; (2) improperly lauds the skill of defense counsel; (3) states his personal view of the veracity of a witness; (4) argues matters not in evidence; and (5) plays to the passions and emotions of the jury. “ SEVENTH PROPOSITION OF LAW: A prosecutor commits
misconduct and violates the rights of a capital defendant under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and under Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution when, during the State’s opening and closing statements at the mitigation phase of the trial, the prosecutor:
“(1) improperly tells the jury that they should make their determination based on the number of mitigation factors appellant presented; “(2) improperly tells the jury that it should treat the nature and circumstances of the offense as an aggravating circumstance; “(3) repeatedly refers to the ‘aggravating circumstances’ to be weighed against the mitigating factors although there was but a single aggravating circumstance;
“(4) despite an order to the contrary, tells the jury that their verdict at mitigation will be a recommendation;
“(5) urges the jury to sentence appellant to death because the victim was a good man and appellant dared to cause harm to the victim’s family; “(6) suggests to the jury that it treat the likelihood of appellant’s future dangerousness as a non-statutory aggravating circumstance; “(7) indicates that appellant’s outburst in response to his closing argument should be treated as a non-statutory aggravating circumstance; and “(8) directs the jury’s attention to appellant’s failure to produce evidence regarding the mitigating factors set forth in R.C. 2929.04(B)(1), (2), (3), (4), (5), and (6). “ EIGHTH PROPOSITION OF LAW: A trial court commits
prejudicial error in its instructions to the jury at the mitigation phase of a capital trial in violation of appellant’s rights under the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution. Specifically, the trial court:
“(1) improperly defined mitigating factors;
“(2) improperly listed each of the mitigating factors identified in R.C. 2929.04(B) although evidence was provided only in regard to the catchall provision of R.C. 2929.04(B)(7); and
“(3) improperly informed the jury that it could consider imposing one of the life imprisonment sentences only if it had first either determined that a death sentence should not be imposed or determined that it was unable to reach a unanimous decision as to a sentence of death. “ NINTH PROPOSITION OF LAW: A capital defendant
receives constitutionally ineffective assistance of counsel and his death sentence constitutes cruel and unusual punishment when his trial counsel fail to object to significant and repeated error in the trial court’s instructions to the jury. “ TENTH PROPOSITION OF LAW: A trial court denies a capital defendant his rights to due process under the constitutions of the United States and the State of Ohio when it fails to conduct an inquiry as to whether he knowingly and intelligently waived his right to testify at trial.
{¶ 110} “ ELEVENTH PROPOSITION OF LAW: A trial court commits prejudicial error when, after an in-court outburst by a defendant in a capital trial, it refuses to grant a mistrial and refuses to individually voir dire the jurors, and when it indicates to the jury that they may consider the outburst in weighing the aggravating circumstance against the mitigating factors.
{¶ 111} “ TWELFTH PROPOSITION OF LAW: Counsel at the mitigation phase of a capital trial renders ineffective assistance by waiving error regarding the court’s failure to instruct the jury to disregard an outburst by the defendant. “ THIRTEENTH PROPOSITION OF LAW: A trial court errs
by denying a capital defendant’s motions to:
“(1) prohibit death qualification of the jury unless and until the state has shown probable cause to believe the case will go to a mitigation hearing; “(2) order a prosecutor’s office to turn over to the court its entire case file; “(3) prohibit the use of peremptory challenges to exclude jurors who express concerns about capital punishment;
“(4) dismiss the death specifications because Ohio’s death penalty law is unconstitutional both in the abstract and as applied; “and also by denying in substantial part a capital defendant’s motions for “(1) pretrial disclosure of witness statements; and “(2) individually sequestered voir dire. “ FOURTEENTH PROPOSITION OF LAW: A death penalty
law which has not been effectuated in over thirty years is, by definition cruel and unusual. “ FIFTEENTH PROPOSITION OF LAW: Imposition of the
death penalty in this case can only be viewed as freakish, capricious, and arbitrary.
{¶ 115} “ SIXTEENTH PROPOSITION OF LAW: A [t]rial court may not order a sentence of electrocution in light of R.C. 2949.22.
{¶ 116} “ SEVENTEENTH PROPOSITION OF LAW: A trial court errs in imposing a death sentence when the death penalty law as applied in Ohio violates R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in conducting their R.C. 2929.05(A) review of ‘similar cases’ for proportionality, to review only those in which a sentence of death was imposed and ignore those in which a sentence of life with parole eligibility after twenty full years or life with parole eligibility after thirty full years was imposed. The current method also violates the rights to fair trial and due process and results in the imposition of cruel and unusual punishment as set forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution. “ EIGHTEENTH PROPOSITION OF LAW: Trial counsel in a
capital case provide ineffective assistance when they fail to raise substantial matters for later review, thereby waiving that review. “ NINETEENTH PROPOSITION OF LAW: A defendant who
is sentenced to death following a trial and mitigation hearing in which his counsel was deficient has been denied his rights to fair trial and due process and is subjected to cruel and unusual punishment, all as set forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution. “ TWENTIETH PROPOSITION OF LAW: Because Ohio’s
death penalty scheme permits a sentence of death only when the aggravating circumstances of which a capital defendant is convicted outweigh beyond a reasonable doubt the mitigating factors, a court of appeals errs to the defendant’s prejudice and denies him his rights to a fair appellate tribunal and due process and subjects him to cruel and unusual punishment when, in conducting its statutorily mandated independent weighing, it ignores mitigation evidence introduced and affirms the death sentence because the mitigating factors are insufficient to outweigh the aggravating circumstance. “ TWENTY-FIRST PROPOSITION OF LAW: A death
sentence must be reversed when this Court’s independent weighing of the aggravating circumstance against the mitigating factors proved by a preponderance of the evidence reveals that the death sentence was wrongly given. “ TWENTY-SECOND PROPOSITION OF LAW: A sentence
of death is wrongly imposed when it is inappropriate and not proportional to the sentence imposed in similar cases.”