*1
Appellant.
Green,
Ohio, Appellee,
The State
(2000),
Spiros David Prude-Smithers, Defender, appellant. Public for Assistant
Pfeifer, appeal, twenty propositions In this advances of law. We J. convictions therefore affirm his propositions relating each of the to his convictions. however, court and remand the cause to the trial penalty,
We vacate the death comply the trial court failed to proceedings, primarily for further because 32(A)(1), every trial court criminal case to requires Crim.R. which if to make a the defendant “and ask he or she wishes personally address information in present any mitigation on his or her own behalf or statement *5 sentencing opinion that trial court’s punishment.” Additionally, we conclude the the trial court must reconsider and Accordingly, contains numerous deficiencies. the opinion resentencing aggravated Green for murder prior revise El-Okdi. Samar
I Sufficiency of the Evidence In his first the of the evidence challenges sufficiency which in in the support prior design, charged calculation and Count IV and IV, V, in death-penalty specifications Counts and VI. whether, inquiry appeal] viewing
We have held that
relevant
after
“[t]he
[on
in
fact
prosecution, any
the evidence
a
most favorable to the
rational trier of
light
proven beyond
could have found the essential elements of the crime
reasonable
(1991),
259,
492, paragraph
doubt.” State v. Jenks
61 Ohio St.3d
two
2781,
syllabus,
of the
Jackson v.
99 S.Ct.
following
Virginia
credibility
324-325; Penix, supra. State v. “prior term calculation and design” replaced the term “deliberate premeditated malice” in defining aggravated murder in Ohio. 134 Ohio
Laws, II, 1866, Part 1900. No bright-line test exists that “emphatically distin- ” guishes presence between the or of ‘prior design.’ absence calculation and State v. Taylor However, prior calculation and is a more design stringent premeditation. element than Cotton O.O.3d 381 N.E.2d one of the case, In this the evidence directly establishes how and where El-Okdi was killed, although facts to where relating kidnapped she was and robbed are missing. supports The evidence finding guilty court’s Green was arrested, complicity her death and thus was one of her killers. he When was he driving her car. His constant companion, Coley, possessed gun Moreover, killed her. body just Green knew where her could be found. twelve lived, days earlier and block from where El-Okdi and Coley, acting *6 area, Moore, him a David driven to deserted carjacked had and robbed together, times, him left him for dead. shot several prior design solely calculation and rests proof that the state’s argues and murder kidnapping, robbery, that the facts of El-Okdi’s supposition
on the crimes Moore. He admits against were similar to what we know about the identity or intent under Evid.R. “other acts” evidence is admissiblé to establish 404(B). However, to use other-acts to impermissible he that it is evidence argues design calculation and in a later crime. prove prior First, to the of the evidence. Evid.R. reject challenge sufficiency
We 404(B) alia, prove, can be admitted to inter recognizes “other acts” evidence “intent, knowledge, identity, or absence of mistake or acci- preparation, plan, added.) Additionally, prior design calculation and can be (Emphasis dent.” kill plan quickly found even when the conceived and executed. See State (store 331, 343-345, v. 70S N.E.2d Goodwin shot); robbery Taylor, which one clerk n (two- N.E.2d at 89-91 to three-minute encounter bar betwee rivals for affections). another’s event,
In any robbery, the known facts of El-Okdi’s and murder kidnapping, themselves, crimes, apart from the Moore calculation and support finding prior design. example, For El-Okdi was killed in an isolated area and was kidnapped kill apparent for no reason other than to her. El-Okdi was smaller considerably killers, than her posed any put up two armed and she could have threat or any Nothing suggests credible resistance. the record that she went to the fact, location voluntarily. where she was killed El-Okdi had told a friend that Also, spend evening she wanted to at home alone. El-Okdi was shot at close between the which an range, eyes, suggests execution-style slaying. Frusher it, plate testified that the Pontiac’s license had a zero in which means that Green Coley placed plates they stolen on El-Okdi’s Pontiac where her. killed town, Finally, Coley Green and drove her Pontiac 6000 around which suggests both to plan property deprive any way complain use her her of about its use. We Green’s first of law.
II
Allocution Rights In his process second he was denied due rights speak and his under Ohio law because he was “not an given opportunity 32(A)(1) penalty imposed.” before the death Ohio Crim.R. confers an [was] absolute of allocution: right * * sentence,
“At the time of the court shall *: imposing an opportunity speak “Afford counsel on behalf of the defendant and address the defendant and ask if he or personally she wishes to make a statement in his present or her own any mitigation punishment.” behalf or information in See Campbell paragraph one syllabus; Reynolds 80 Ohio *7 The argues state that the court asked Green whether he wished to make a statement before imposing sentence. Around 9:25 on p.m. March after hearing penalty-phase hours, evidence and for deliberating several the panel that announced it was to ready proceed. After its noting previous findings, the court asked objection whether the defense had any to on the sentencing noncapi- tal offenses as well as capital offenses that The evening. defense had no objection. The following exchange place: then took
“The Court: Is anything offenses, there to regard those Mr. Counsel or Green, prior to passing the Court sentence on both those counts as on well as Counts 8 and 10?
“Mr. Cameron Anything [defense counsel]: we wish to say?
“The Court: Yes.”
Counsel then commented about sentencing on the firearm specifications, and further, the court agreed. Counsel said nothing and Green nothing. said After Moore, wife, Moore’s and Moore’s statements, brother made victim impact imposed court sentences for each offense to which pled Green or guilty was found guilty, including aggravated murder.
The trial court clearly Green, erred not explicitly asking in an inquiry him, only directed to whether he had anything say before he was sentenced. Supreme United States Court has specifically cautioned federal under judges * * * comparable Federal Rules: “Trial judges before sentencing should * * * unambiguously address themselves the defendant. [Jjudges should leave no room for that doubt the defendant has been issued a personal invitation to speak prior to sentencing.” Green v. United States 81 S.Ct. 5 L.Ed.2d 674.
The trial court’s reference to “both those counts” is ambiguous. The context suggests may the court have solicited comment only noncapital Instead, offenses. the trial court should specifically have if asked Green he had anything say capital about the counts as well as the other offenses. The record demonstrates a violation of Crim.R. 32 that was neither invited nor harmless.
Trial courts must painstakingly adhere to Crim.R. guaranteeing right allocution. A 32 inquiry Crim.R. is much than more an ritual: it empty 360 plead express last his case or remorse.
represents opportunity a defendant’s Green, 365 right allocution.” U.S. provenance the common-law legal “[I]ts See, also, Myers States v. L.Ed.2d at 673. United 81 S.Ct. (C.A.6, (C.A.5, 1998), 461-462; 150 F.3d United States v. Riascos-Suarez 1996), 616, 627; F.3d Annotation A.L.R.2d Section violated, thereby of allocution the constitutional undercutting right Accordingly, this we sustain his second reliability of death sentence. Campbell,
of law for resentencing. and remand three of the
Ill Doubt
Residual In urges this court to overrule State v. his third (“Residual syllabus McGuire Ohio doubt is 2929.04[B]”). an acceptable mitigating support, factor under R.C. unconstitutionally limits under mitigation McGuire evidence Amendment and has a reliability component Eighth that an accused due *8 that process right argue against guilt supports evidence the death penalty. However, contrary the and precedents arguments. are clear to Green’s We decline the to overrule State McGuire. Neither United States Constitution nor the requires Constitution of Ohio that residual doubt be considered as a mitigat (1988), ing factor. Franklin 108 S.Ct. Lynaugh 155; McGuire, L.Ed.2d State v. at 1122-1123. supra, 686 N.E.2d We Green’s third of law. IV and
Weighing Penalty Determination Death propositions his fourth and fifth that the court’s sentencing opinion constitutionally deficient because the court improperly weighed that were aggravating proved, the circumstances and alleged improperly circumstances, nonstatutory considered failed to consider aggravating and rele- propositions vant evidence. We and sustain his fourth fifth mitigating agree of law. 2929.03(D)(3)
R.C. “if specifies imposed that the death shall be penalty the finds, panel doubt, judges unanimously by proof beyond of three a reasonable that aggravating guilty the circumstances the offender found committing mitigating against factors.” circumstances’ outweigh ‘aggravating “[T]he specifications which the evidence to be are to the mitigating weighed limited (8) 2929.04(A)(1) circumstances set forth in R.C. that aggravating through have in alleged proved beyond been the indictment and a reasonable doubt.” State v. Wogenstahl paragraph Ohio St.3d one of the syllabus. Accord State v. Johnson OBR syllabus; Cooey three of the panel When the trial imposed penalty death on Green it violated these principles. IV, For example, single death-penalty specification in Count aggravated prior murder calculation and as well as design, single death VI, specification Counts V that alleged Green committed the murder while committing or to commit attempting “kidnapping or aggravated robbery.”1 added.) (Emphasis Despite the indictment’s clear the trial language, verdict that stated Green committed the murder while committing “both a kidnaping added.) aggravated robbery.” (Emphasis panel’s opinion The death penalty .an also altered the aggravating circumstance from that specifically alleged indictment, by as two considering separate and distinct circum aggravating stances Green’s involvement in “both an committing aggravated robbery and a Moreover, kidnapping.” the panel gave to both weight kidnapping aggravat ed robbery separate as and distinct aggravating despite circumstances the fact that they so, were not as such. alleged By doing panel wrongfully multiplied a single circumstance into two. Spivey See State v. fn. 361, 367-373, State v. Davis 931-935. made another egregious by error declaring “the State has
proved aggravating beyond circumstances a reasonable doubt under both R.C. 2929.04(A)(3) (A)(7): is, killing of Samar El-Okdi was for the purpose detection, of escaping apprehension, trial or punishment for another offense (A)(3) committed Mr. panel, Green.” The relying upon the factor deciding impose the death penalty, stated: “The killing of Samar El-Okdi was planned, calculated and carried out as an execution of a potential witness.” In *9 discussing circumstances, the aggravating panel the gratuitous, referred to “the cold, calculating and seemingly remorseless execution of Ms. El-Okdi.”
However, the indictment did not allege 2929.04(A)(3), violation of R.C. and the parties did not argue the issue. The panel’s first reference to this aggrava . ting circumstance was in the penalty opinion, not the guilt-phase verdict The 2929.03(D)(3) panel thus violated R.C. Wogenstahl by imposing death on the basis of an aggravating circumstance which Green charged. was never panel correctly merged 1. aggravated The charges single the single murder for a victim into a punishment purposes. 336, 351, offense for See State v. Lawson 64 Ohio “merged 913. import.” Counts V and VI were [Count IV] into as allied offenses of similar 128, 136; Raglin (1999), 85 Ohio St.3d v. Baston circumstances nonstatutory aggravating relied on Third, panel the trial opinion compared sentencing trial court’s The penalty. the death imposing However, Green was killing. the El-Okdi offenses with the Moore contrasted Moore, “course of conduct” and no against for the offenses sentenced separately the offenses 2929.04(A)(5)', in this case. While charged R.C. specification, (see in El-Okdi’s murder that was involved helped prove Moore against law), to the were not relevant they eleventh discussion Green’s penalty the death impose or to the decision circumstance specified aggravating states: penalty opinion trial court’s example, For the upon Green. surrounding facts evocative of the hauntingly incidents are
“The Moore into were forced back [carjacked]; Both were both against El-Okdi]. [offenses out of alleys, then driven to remote ordered at both were gunpoint; their cars * * * Coley kept both cars, range. at blank point and then shot their * * * they had some doubts Perhaps afterwards.” days cars for several Moore; no such but there could have been killing Mr. they had succeeded at close eyes very between the directly to Ms. El-Okdi. She was shot doubt as range.
u :{s [*] [*] than that of Ms. calculating a colder or more murder imagine is difficult to “[I]t * * * of the El-Okdi, only purpose of Mr. Moore. attempted or the murder any in each case was to eliminate ensuing events subsequent kidnapping as a sequence Each of these offenses taken possibility of later identification. in the extreme.” chilling
Further,
against
facts about the offenses
improperly
the trial court also
used
Wogenstahl,
circumstances. See
nonstatutory aggravating
El-Okdi as
352-355,
319-321,
syllabus;
at
two of the
662 N.E.2d at
Also,
Davis,
363 Moreover, mitigating panel’s circumstances factors. the aggravating outweighed aggravations which to wording, mitigation “offset[ting]” improperly referred Hill suggested persuasion. that the defense had the burden of See State v. 433, 438-439, 271, 73 N.E.2d 653 278. in the court Finally, give his fifth of Green asserts that did not to “the appropriate weight mitigating Admittedly, factors. assessment to trial weight given mitigating be evidence are matters for the court’s determi nation.” State v. Lott 51 St.3d 555 Ohio N.E.2d Accord State v. OBR Steffen two of the ease, however, In this the trial misinterpreted court our decision in McGuire, which that residual held doubt 2929.04(B) acceptable not as a under in mitigating capital factor R.C. cases. Here, that, decision, the trial for court declared but the resulting McGuire “the for the murder penalty capital specification count would have life been asserted, the of of possibility parole, without instead death.” trial court The then “Residual a identity, doubt as and to lesser extent as the role played El-Okdi, pivotal in the demise Ms. would a played [Green] have role in this of * * * case, worth, upon based the evidence. for what it it Unequivocally, added.) in have a (Emphasis would resulted different sentence.” However, the McGuire decision does not and was preclude never intended to appropriate weighing the independent the evidence and the weighing aggravating circumstances against mitigating factors. Accordingly, the panel was able to whatever it it give weight thought appropriate the fact that not did find that was the in principal aggravated offender the murder. Indeed, a the fact that defendant principal specific the offender is a 2929.04(B)(6). statutory factor. mitigating Normally, See R.C. it would be factor. powerful few death have mitigating Very approved sentences been against were not persons principal who offender. State v. Robb Cf. Yet, evidence, N.E.2d 1019. in Ohio the trial evaluating court gave virtually weight no the fact that Green was to be principal not found Moreover, in offender the aggravated reading murder. the court’s erroneous our decision in appears McGuire to have contributed to this failure. in
Deficiencies
can
sentencing opinion
normally
by appellate
be corrected
reweighing.
See
Fox
Ohio
Lott,
51 Ohio St.3d at
deficiencies this case too severe to by simply reevaluating correct the evidence. case, In this the collective deficiencies the trial court’s decision to impose penalty, sentencing opinion, death as reflected undermine our confidence that decision. many prior overlooked this court’s decisions *11 viola errors reflect grievous These cumulative statutory framework. mandated Accordingly, we vacate the death statutory process. of the deliberative tions trial court for further delibera and remand to the imposed this case penalty Davis, at at 528 N.E.2d 936. v. 38 Ohio St.3d tions. See State noted, the the deficiencies sentencing opinion the to address revising While should he on must whatever Green discusses judges remand consider trial court on Green’s second to allocution. See discussion right choose -to exercise his of law. V
Victim-Impact Evidence his rights Green that constitutional In his seventh' that should be family violated when Moore’s members asserted were sentenced to death. deliberations, if asked could accelerate
Following penalty the court it offenses, day. which for the next sentencing for Moore had been scheduled Then, the court announced the decisions agreed. sentencing The defense before offenses, and Moore described the events of his for the Moore El-Okdi David as it'. He night, thoughts engendered by well as the and emotions “terrifying” allowed to inflict terror predators to ensure that “these are never this wanted his again anyone expressed they on else” desire that receive a maximum sentence. fear, anger, wife her her David Moore’s and the suffering,
Moore’s described husband, also of Green impact of the offenses. She contrasted the lives and her family. that had on impact and commented El-Okdi’s death El-Okdi’s thought asked, lacked this Mrs. Moore remorse “How dare think he when he has the life of coward deserves to live taken [Green] Moore, brother, brother, spoke Paul David’s also about his another[?]” offenses, impact murder on El-Okdi’s impact El-Okdi’s had gravity cruelty Paul Moore asked the court to “consider the and the family. protect penalty law.” by issuing by these crimes us the harshest available to these object Defense counsel did not statements. prohibit victim-impact
The United States Constitution does not evidence Payne capital cases. v. Tennessee S.Ct. Goodwin, 720; v. at 1262.
L.Ed.2d Ohio St.3d However, neither nor Moore or his Ohio’s Constitution its statutes authorized impact family. about the murder on El-Okdi’s family speculate El-Okdi’s 2930.02; See, 2930.14; R.C. cf. e.g., R.C. State White 154-155. permitted family The trial court should not have Moore or his members to for the opinions punished against about how Green should be offenses express syllabus v. Huertas El-Okdi. State Ohio St.3d particular a witness as to the of a (“Expressions opinion by appropriateness to have capital right sentence case violate the defendant’s constitutional Goodwin, Accord State v. sentencing jury judge”). decision made Fautenberry 703 N.E.2d at on a object, plain-error Because Green did not the issue must be considered Moreover, judges normally presumed upon basis. can be not to have relied such *12 Goodwin, 343, improper expressions opinion. of See State v. 84 Ohio St.3d at (1987), 380, 384, 754, N.E.2d at State v. Post 32 Ohio St.3d 513 N.E.2d However, in opinion length since the court’s death this case dwelt on the relevant, offenses, which not presumption reasonably Moore were that cannot case, in this case. In their in this apply revising sentencing opinion judges the trial should whether or not constituting clarify they expres considered sions of from others as to what in opinion the sentence should be this case. We sustain Green’s seventh of law.
VI
Pretrial Issues law, Procedures on arrest. In his eighth proposition argues of that he Green a arrested without warrant on that January promptly he was determination, taken a magistrate probable before for a cause that and therefore “all of fruits the warrantless arrest must be that suppressed.” We find Green’s arguments lack merit. 15, claim that in appeared
Green’s he first court on January eight days after arrest, 8, his is wrong. January appeared Municipal On Green in Toledo Court for a which a preliminary hearing, probable cause determination. R.C. 2937.09. He was a charged carrying weapon concealed receiving property. and stolen A video of that court appearance is the record.
As Green not complain did at trial about the failure to a prompt conduct preliminary (1994), he hearing, waived the issue. See State v. Campbell 69 Ohio 339, 347; St.3d 630 State v. F.O.E. Aerie 38 Ohio St.3d 66, two paragraph syllabus; of the State v. Wade 53 Ohio O.O.3d paragraph syllabus. three of the We eighth proposition of law. Suppression pretrial In statements. his ninth Green argues that his Miranda waiver pretrial police statements to were coerced. was questioned his will because he sleep deprivation that overcame Green rest. for over twelve hours without a court “should consider involuntary, a confession is determining whether criminal circumstances, mentality, prior including age, totality of the accused; interrogation; intensity, frequency length,
experience
mistreatment;
of threat
and the existence
or
physical deprivation
the existence of
v. Edwards
3 O.O.3d
or inducement.” v. Brewer
See two of the
N. E.2d
Barker
491, 499;
apply to whether Green
The evidence Green voluntarily police. talked with verbally writing both rights his and he fact waived them on rights that he understood acknowledged January 1:45 a.m. on occasions. Green was arrested around separate least three first at 5:04 a.m. when he was advised and waived questioned 1997. He was car, Miranda him the so police “dope He told fiend” rented rights. his a.m., 10:30 looking person. him around town for this Around detectives drove a waiver of Miranda Around 2:30 rights. p.m., police again again signed advised Green of his Miranda another waiver. Around rights signed and Green in a told him that he had p.m., taped Coley 4:30 Green claimed statement car. that he was in this shot a woman and stolen her Green denied involved *13 crime. Green, him, police physically
No abused threatened or suggests evidence any promises during questioning. eighteen years made Green was old when continuous, sporadic, given Interviews were not and Green was food questioned. for questions, question- and breaks. Green never refused to answer never asked lawyer. never asked for medical attention or a Green did not ing stop, and tired, complain any that he was nor does evidence indicate that he was tired. intensity questioning The of the did not overcome his will. See length Barker, 217, State v. 141, at 7 at 372 at 1329-1330. 53 Ohio St.2d O.O.3d N.E.2d Instead, rob, or kill kidnap, Green maintained his claim that he did not El-Okdi the trial simply supports but drove her ear after she was killed. record (1982), 1 Fanning motion. As State v. reject suppression court’s decision to 584, 19, 20, 57, 58, 583, held, weight 1 OBR 437 N.E.2d “the of the Ohio St.3d credibility primarily of witnesses are for the trier of the facts. evidence * * * well trials.” principle applicable suppression hearings This as as DeHass, 212, Accord State 10 Ohio St.2d 39 O.O.2d 227 N.E.2d v. DePew (1988), 275, 277, State 38 Ohio St.3d 528 paragraph syllabus; one ninth reject proposition N.E.2d 547. We law. jury law, In
Waiver of
trial.
his tenth
Green
that his
trial
jury
knowing, intelligent,
voluntary
waiver was not
because the trial
explain
implications
court did not
“all of the
of that waiver
including
limited
right
appeal
rulings by
three-judge panel.”
erroneous
However, a “trial court is not
to inform the
of all
required
defendant
possible
implications
by jury].”
Bays
waiver
State v.
[of
Ohio
15, 20,
1126, 1135,
St.3d
716 N.E.2d
citing State v. Jells
53 Ohio St.3d
559 N.E.2d
paragraph
one of the
Accord
v. Filiaggi
Baston,
867, 875;
State v.
at
at
trial,
N.E.2d
132. The trial court discussed with Green his
to a
right
jury
including the role of fact-finding and the
requirement
unanimity, and the court
fully
determined
Green had
discussed
counsel his decision to waive a
jury. The trial court did not mislead or misinform Green about his rights.
signed
the waiver in
court
it
open
and was filed.
We
Green’s tenth
Jells,
of law. State v.
N.E.2d
Baston,
one of the syllabus;
State v.
“The judge disposes 16(B)(1)(e) who of such a motion [under Crim.R. may ] be trial,” the same who will judge conduct the State v. Gillard paragraph one of the syllabus, because is an “there unnecessary risk that the will judge harbor a bias against that defendant.” Id. at 229, 533 276. Although Judge trial,” Bowman did not “conduct the he panel. did sit on the id., Such a mistake “is not per prejudicial,” se nor is “violation of the Gillard rule constitutional error.” v. Esparza [a] Ohio 1194, 1196.
The fact Judge Bowman had earlier ruled on prosecutor’s Crim.R. 16(B)(1)(e) certification and later sat on the was harmless error. The *14 hearing to relating Tyrone Armstrong was brief. It dealt with Armstrong’s family relationship Green, cousins, with Coley as the fact that all were in incarcerated the same facility, and the fact that family had asked members not to Armstrong cooperate Moreover, prosecution. much of Arm- strong’s offenses, dealt with testimony the Moore to which Green pled guilty. had to respect El-Okdi,
With the offenses against Armstrong simply corroborated that Green in riding El-Okdi’s car for two or three days before he was not record does that fact to detectives. The readily Green admitted arrested. made considered the brief statements upon relied or that the trial suggest 384, Post, at v. 32 Ohio St.3d hearing. See State Crim.R. pretrial at the reject Green’s twelfth to be harmless and find error any at 759. We N.E.2d Gillard, 229-230, N.E.2d at at 40 Ohio St.3d law. State v. Cf. 277. Green In his fourteenth
Denial continuance. when the assistance of counsel and the effective process due that he was denied adequate counsel did not have because his a continuance grant trial court failed trial. for prepare time to “[tjhere are no mechanical has stated that Supreme Court
The United States
as to violate due
arbitrary
of a continuance is so
when a denial
deciding
tests for
* * *,
in
particularly
found in the circumstances
The answer must be
process.
Ungar
is
v.
request
denied.”
presented
the reasons
[when]
Sarafite
850,
921,
In
v. Landrum
575, 589,
841,
11 L.Ed.2d
931.
State
84 S.Ct.
710, 722,
107, 115,
recognized
we
“[s]everal
53 Ohio St.3d
continuances,
delay requested, prior
length
can be considered:
factors
inconvenience,
whether the defendant contributed
delay,
the reasons for the
other relevant factors.”
delay,
a continuance is a matter that
entrusted
fact,
or denial of
grant
“[t]he
broad,
judge.”
Unger
of the trial
State
sound discretion
1078,
have sustained trial
65,
41,
judges
We
O.O.3d
that it
despite
continuances
defense claims
capital
cases who denied
several
144,
See,
v. Mason
82 Ohio St.3d
prepare.
e.g.,
more time to
needed
1, 17-18,
932, 947;
154-156,
Spirko
Landrum,
721-
229, 249;
at
The record 1997 on the represented January Wingate Defense counsel Ronnie capital on On March Green was indicted original noncapital indictment. at a on Green’s behalf. day, Wingate appeared hearing The next charges. trial, Cameron, Thereafter, who were the counsel Wingate and Donald 12, July in 1997 on March or conferences represented pretrial hearings 15, September October October August September August February Trial on February February began 23. January been reset for October September The trial date for had 23,1998. February continued until again Thus, sentencing. for trial and nearly year prepare counsel had one time, their claims were they claimed that needed more Although counsel counsel, a continuance because they needed specific. Another claim made
369 evidence, by have been found not credible reasonably could exculpatory trial court in its discretion. physical on the lack of strong specific defense based presented
Counsel In the against Green to the offenses El-Okdi. tying and testimonial evidence psycholo witnesses a defense phase, presented including counsel several penalty at all competent” representation “strong, vigorous, The record shows gist. 667 N.E.2d of the trial. State v. Ballew Ohio St.3d stages See or an abuse of representation No basis exists to find ineffective Mason, a continuance. See State v. denying discretion the trial court 59 Ohio St.3d at Spirko, Ohio St.3d at 694 N.E.2d fourteenth of law. N.E.2d at 249. We Green’s
VII
Trial Issues In argues “Other acts” evidence. his eleventh Green acts, namely, kidnapped, of other criminal evidence that he improper evidence robbed, Moore, trial, process, shot denied Green due a fair and a reliable also this “other acts” evidence sentencing argues determination. Green not him. mostly wrongdoing by Coley, concerned “[ejvidence 404(B), crimes, wrongs,
Under Evid.R. of other or acts is not criminal “It prove” propensity. may, admissible to a defendant’s character as to * * * however, motive, intent, opportunity, preparation, be admissible [to show] or absence of or Id. plan, knowledge, identity, “[T]he mistake accident.” admissibility for of such is strict.” State v. Broom determining standard evidence paragraph syllabus. Ohio St.3d one forming unique, plan activity “Other acts identifiable of criminal are admissi 404(B).” identity ble to establish under Evid.R. Jamison syllabus. prove order be admissible to “[t]o a certain identity through operandi, modus other-acts evidence must be related to and share common features with the crime State v. Lowe question.” paragraph syllabus. Additionally, one admission or exclusion of relevant evidence rests within the “[t]he sound discre Sage tion of the trial court.” State v. 31 OBR two case, In this the trial court not abuse its discretion in evidence of admitting did First, the crimes no against help prove against Moore the offenses El-Okdi. issue existed as to for the offenses Moore. Moore responsibility against Green, positively pled guilty identified and Green those offenses. only participant that he was a minor is mistaken when he
Green Moore, him. person approach Green was the first According these offenses. forced him in the car. told Coley displayed guns Then and both *16 Moore, “Don’t an or I’ll kill try escape not to look at their faces and told Moore Moore, up the cash.” Green was the one you.” “Cough Finally, Green also told him Moore and shot several times. who chased -
Second,
plan
Moore
a
identifiable
of
against
“unique,
the offenses
showed
activity” helping
prove
identity
kidnapped,
criminal
to
as one who
robbed, and killed El-Okdi. That evidence also relates to Green’s intent and his
404(B).
cases,
In
plans
preparation
upheld
and
under Evid.R.
other
we have
See,
Bey
“other acts”
v.
85 Ohio
e.g.,
similar
evidence.
St.3d
(both
chest,
removed,
their
victims stabbed
trousers
and shoes
bodies);
placed next to
State v.
73 Ohio St.3d
Williams
(same
driver);
kill
gun
used to
cab driver and assault truck
State v. Woodard
68 Ohio
75 (carjacking attempt
prove
admissible to
Jamison,
murder);
identity
carjacking
as to later
and
49 Ohio St.3d
(similar
businesses).
strong-arm
Off-the-record his thirteenth court erred a witness finding competent testify to based on an
off-the-record hearing. claims,
Contrary to Green’s the trial court not did conduct an off-the-record competency hearing. October the state took deposition. Frusher’s On trial, February during to inspect psychiatric moved Frusher’s for judicial records and determination of her The court competency. declined to a hearing order on Frusher’s that Fresher competency, noting had seemed competent presided deposition. when the court had over her The defense that it stressed needed access to Frusher’s medical not to her challenge records but to competency, explore “her state of mind the time she made allegedly these observations” in the alley night El-Okdi’s murder. prosecu- Frusher
Later, along court that it had interviewed noted treated” and “where she [was] counsel off the record to ascertain tor and defense to Information Release.” The willing not a Medical sign or she “whether parties agreed reluctantly a release. signed noted that Frusher court their before cross- have access the medical records counsel could defense Then, testified, court that based its Frusher noted examination. before “off-the-record deposed upon court’s when Frusher observations Information ago, a half an hour or so the Medical of Ms. Frusher interview * * * competent testify.” she is and the course of the treatment Release that decision. challenge Green did informal never asked for procedure apparently consented to this
Counsel
reporter
agreement
or a court
to be
Defense counsel’s
present.
the accused
interview
recorded
all
request
this
failure
that the
be
waived
procedure
Palmer,
687 N.E.2d at
but
error. See State v.
696-
plain
Absence accused fifteenth at presence that the trial court’s failure to secure Green’s various argues Green his process. in-chambers violated to confrontation and due rights conferences continuance, view, jury a a pretrial regarding was absent from a discussion Green evidence, from about stipulations waiving about the interview Frusher and privilege, request possible from a discussion over a continuance her medical evidence, from a a continuance exculpatory request, police discussion over witnesses, a hearsay, and defense efforts to locate from discussion over reports, witnesses, records, and from scheduling, possible psychiatric Frusher’s other about medical and scheduling. discussions Frusher’s records right has a at all of his criminal trial. present stages Green fundamental be 43(A). 10, I, Constitution; absence, Article An accused’s Section Ohio Crim.R. however, necessarily does not result or constitutional error. prejudicial 97, 107-108, 330, 333, v. 54 S.Ct. 78 Snyder
In Massachusetts 674, 679, a a the court held that of defendant is condition of presence L.Ed. “the hearing to the that a fair would be thwarted his process just due extent absence, In v. 470 only.” Gagnon that extent United States U.S. 1482, 486, 522, that a Supreme 105 S.Ct. 84 L.Ed.2d Court held defendant’s juror, present, from a when counsel were did not hearing involving absence Stincer, v. U.S. 107 S.Ct. 96 process. Kentucky due See 482 offend (no when an accused 631 Due Process or Confrontation Clause violation L.Ed.2d witnesses). See, of two hearing competency from a on child was excluded 372 285-287,
also, 348-350, 6 v. Williams OBR 452 1323, 1329-1331; v. N.E.2d State Roe 43(c)(3) (accused See, also, need not be “a present Fed.R.Crim.P. at law”). or hearing upon
conference
question
Although the number of
absences from in-chambers
Green’s
conferences
thwart
disturbing,
just hearing. Snyder,
the absences did not
a fair and
supra.
conferences,
present
fully participated.
Counsel were
At
never
or
78
testimony
Taylor,
received
evidence. Cf. State v.
Ohio St.3d at
676
mostly
at 92. The
within
legal
profession
discussions
involved
issues
counsel,
al
not issues that
must
Cf.
competence
personally
decide.
(accused
1978),
(C.A.6,
United States Brown
571 F.2d
987
must establish
conference);
from
prejudice
absence at in-chambers
State v.
82
White
(accused’s
772, 781
during
Ohio St.3d
absence
hearing
Williams,
jury
trial);
him
proposed
deprive
instructions did
of fair
State v.
348-350,
at
6 OBR at
at 1329-1331.
Moreover,
expressly
presence
counsel
waived
Green’s
these discus
Gagnon,
sions. See United
States
U.S. at
105 S.Ct. at
(trial
at 491
not get
express
L.Ed.2d
court “need
an
‘on the
from
record’ waiver
for every
may
defendant
trial conference which a
right
defendant
have a
attend”);
(C.A.2, 1999),
(waiver
Gallego
United States v.
F.3d
171-172
exclusion);
object
can be inferred from
failure to
accused’s
Polizzi v. United
(C.A.2,
(counsel
1991),
States
1322-1323
can
right
F.2d
waive accused’s
Hill,
present);
Thus,
to be
Ohio
Prosecutorial misconduct. his sixteenth proposition of prosecutor evidence, exculpatory withheld talk advised witnesses not to *18 counsel, to improperly argued defense the at both phases case of the trial. claims, Exculpatory Despite evidence. Green’s state Brady the did not violate (1963), 83, 1194, 215, v. 83 Maryland 373 U.S. S.Ct. 10 L.Ed.2d by withholding exculpatory police evidence. The evidence question report on a prior complaint domestic violence by Penny Coley Graves against pretrial certain by Tyrone Armstrong. statements Since the reports “presented were the during trial, not after as in Brady], no Brady [and there exists violation.” sic.) (1990), (Emphasis 114, 116, 913, 50 Wickline Ohio 552 St.3d N.E.2d 917; (1996), 595, 583, v. Brown 112 App.3d 361, State Ohio 679 N.E.2d 369.
Moreover, these reports were neither material nor exculpatory. Green has not Brady met the that materiality test “had the been evidence disclosed to defense, the result of proceeding would have different.” been United States (1985), 667, 682, Bagley 3375, 3383, 481, v. 473 U.S. 105 S.Ct. 87 494. L.Ed.2d See, (1992), 343, State e.g., 336, 902, v. Lawson 64 Ohio St.3d
373 819, (1992), 424, 433, 827. 63 N.E.2d The Waddy State v. Ohio St.3d 588 offender, whether had principal Coley that Green was the declined to find El-Okdi not shooting or had did previously misplaced firearm admitted Moreover, testimony mostly related negate complicity. Armstrong’s Green’s pled guilty. Moore to against offenses which Green access. that interfered with defense argues with Green the state Interference Quinn not talk with by advising twelve-year-old access to witnesses Albert However, Quinn prosecutor present. counsel before trial unless a defense it. claims to have told did what was said or who said The state not remember not if he did not want to Quinn that he did have to talk defense counsel only 414, (1987), 509 do v. Zeh 31 Ohio St.3d 31 OBR N.E.2d so. See State said, has not what was Regardless one Green paragraph violation. called from asserted constitutional prejudice any established witness at time. Quinn complete had access to the as a defense witness and 263, 271-272, N.E.2d 531-532. Cf. v. 71 643 State Scudder Ohio prosecutor improperly argued Trial-phase argument. Green However, process analysis touchstone of due cases guilt. Green’s “the trial, not the culpability is the fairness of the alleged prosecutorial misconduct 209, 219, 940, 947, 455 102 S.Ct. Phillips Smith v. U.S. prosecutor.” error-free, guarantee perfect 71 The “an L.Ed.2d 87. Constitution does 499, 508, v. 103 S.Ct. Hasting trial.” United States 106. L.Ed.2d Thus, trial, complains At failed to the remarks he now about. object Wade, plain he waived all but error. State v. O.O.3d 52(B). Moreover, “[njeither Crim.R. syllabus; N.E.2d one of the an on aggregate arguable alone nor did these errors have effect [asserted] Slagle of the trial.” v. outcome prosecutor’s remarks about “senseless violence” or that Green’s crimes The prosecutor were not err inconsequential. arguing were “heinous” did for prior design the facts of the Moore showed calculation and the El-Okdi crime 404(B) “intent, permits proof preparation Evid.R. of other acts to show murder. law. See discussion on Green’s eleventh Nor did the plan.” [or] demeanor, prosecutor language, and lack of by commenting body err See, Bey, trial. any during e.g., concern (state during at 495 can comment on accused’s emotional outburst argument); State Brown
(state “may appearance”). comment the accused’s properly that Frusher was a reliable witness to the prosecutor argued
The he, witnessed, to and her simple she that she lacked motive any events 374 did not vouch for
testimony contradictory. improperly was not The state her as a Instead, prosecutor facts to Frusher’s argued support credibility witness. See, responded credibility attacks on and mental abilities. defense her 339, Goodwin, 84 State v. Ohio St.3d at 703 N.E.2d at State v. e.g., Woodard, 76, at 68 Ohio 623 at 80. St.3d N.E.2d that if car prosecutor’s you
The
comment
Green “wanted to take
from
he
your
it,”
you
not
in
killing
simple hyperbole
would
hesitate
take
that can be
disregarded. Likewise,
prosecutor’s
brief comment about what El-Okdi was
thinking as she
not
lay dying
improper
prejudicial.
but
Cf. State v. Combs
278, 282-283,
1071, 1076-1077;
62 Ohio St.3d
581 N.E.2d
State v.
357-360,
at
Wogenstahl,
Finally,
75 Ohio St.3d
Penalty phase. prosecutor by The not asking psychologist, did err the defense Brams, Dr. Jolie if antisocial personality disorder also classification encom passed psychopaths sociopaths. question Dr. Brams’s affirmative merely provided opinions. answer context for object her Green’s failure to Williams, 112, all but plain waived error. State v. 51 5 O.O.3d 364 N.E.2d 1364.
Further, prosecutor’s that the sentencing argument stressed the justification, manner of killing, pointed the lack of exaggerated relatively minor role played killing El-Okdi. object Green’s failure to Wade, waived these issues. v. 7 O.O.3d 373 N.E.2d 52(B). paragraph one of the syllabus; Crim.R. Moreover, can “[pjrosecutors urge the merits of their cause and legitimately argue mitigation worthy defense evidence is weight.” little or no State v. 381, 399, See, also, 74 St.3d Wilson Ohio 309. State v. Steffen, 31 Ohio St.3d OBR N.E.2d paragraph two of the As syllabus. we noted in State v. Hill
1068, 1075,“both the criminal and his are properly crime considered determin sic.) ing propriety imposing death (Emphasis sentence.” The facts are relevant whether the determining nature circumstances the offense are mitigating. State Lorraine St.3d Ohio also,
See,
State v. Stumpf (1987), one
Finally,
prosecutor
permeate
misconduct
did
the trial. Considering
circumstances,
Hill,
all the
Green received a fair trial. Cf.
Ohio 1076-1077;
Landrum,
St.3d at
Ohio
375 law, argues Green In his of right testify. seventeenth Advice to ask failing to Green rights by trial court violated Green’s constitutional that the “he inquire knowingly, to whether right testify he knew had a and whether he However, court is “a trial not waives that voluntarily right.” intelligently concerning decision an with the defendant inquiry to conduct required sic.) 85 Ohio St.3d at Bey, State v. testify (Emphasis in his defense.” whether 378, 398, at 87 Ohio St.3d 499, Madrigal N.E.2d 497. Accord State v. 709 at 240-241, 714 N.E.2d 52, at 877. Filiaggi, v. 86 Ohio St.3d State testify “wanted to nothing suggests in the record that Green Bey, As 500, 497. at N.E.2d at We to do so.” 85 St.3d 709 opportunity Ohio denied proposition of law. reject Green’s seventeenth Green eighteenth proposition assistance counsel. his
Ineffective during both provided that his ineffective assistance before argues counsel that the defen requires Reversal of convictions on ineffective assistance trial. and, second, show, first, performance that counsel’s was deficient dant deprive performance prejudiced the so as to the defendant of a deficient defense 2052, 104 S.Ct. Washington fair trial. Strickland v. 136, Bradley 42 Ohio St.3d 80 L.Ed.2d 683. Accord State v. N.E.2d him attorneys rights. that his did not advise about certain Since him, what .advised we are unable to
the record does not reflect
Green’s counsel
advise him
the differences
attorneys
whether Green’s
failed to
about
determine
trial,
jury
present
his
to be
at in-chambers confer
right
between
ences,
right
his
or his
to allocution. The record also does not
right
testify,
summarily
for trial.
prepare
show that counsel faded to
We
adequately
claims. See
v. Ishmail
54 Ohio St.2d
8 O.O.3d
these
State
syllabus (reviewing
appeal
one of the
court cannot decide
paragraph
N.E.2d
Williams,
record);
at
matters
based on
not
(same).
at 728
Second,
performance
that his counsel’s
fell “below
Green has not demonstrated
Bradley,
reasonable
State v.
Ohio
objective
representation.”
an
standard of
court must
paragraph
“[A]
two
range
conduct falls
the wide
indulge
strong presumption
counsel’s
within
Strickland,
professional assistance.”
at
104 S.Ct. at
reasonable
U.S.
2065,
Counsel not raise merit. a magistrate, before brought promptly 1083. Since Similarly, since failing cannot be faulted for to claim otherwise. there counsel Frusher, were competency counsel not was no off-the-record evaluation raise an issue. need raise the nonexistent evaluation as Counsel required claims of prosecutorial statutory weak misconduct. Ohio’s “reasonable doubt” admission of proper, trial-phase penalty definition as was the evidence into the DePew, phase. challenge Counsel need not such decisions. See one of syllabus, discussion on other propositions of law. cannot challenge We find counsel ineffective for Bowman failing Judge presided parte because he hearing regarding Tyrone over the ex It Armstrong. *21 is sit possible Judge counsel wanted Bowman to even had though he 16(B)(1)(e). in participated pretrial hearing under Crim.R. Finally, counsel’s in argument, support element, of an on the acquittal “principal offender” that the clearer, prove state failed to kill have perhaps intent to could been but that does sum, performance. not constitute deficient acted within counsel their reason- professional judgment. able complains also panel’s that counsel should have to the objected finding 2929.03(A)(7)
on R.C. specification death victim-impact statements. disposition Our death vacating penalty remanding the cause renders issues those moot. We reject eighteenth proposition Green’s of law.
VIII
Constitutional Issues law, In his of proposition nineteenth Green argues rights that his were violated of However, because Ohio’s of statutory definition reasonable doubt. in nothing the record three-judge panel upon demonstrates that the a constitutionally relied Moreover, statutory deficient standard. Ohio’s of definition is reasonable doubt constitutional. See State Lundgren v. State v. Van 64 Ohio Gundy N.E.2d 604. Accord v.
Victor Nebraska
114 S.Ct.
We
twentieth proposition
Green’s
of
which challenges the
constitutionality of
Ohio’s death penalty statute. See State v. Poindexter
syllabus;
Ohio St.3d
Smith
Ohio St.3d
Goodwin,
syllabus;
one
IX Appropriateness Sentence sixth Green’s which argues that the death penalty is not case, in his warranted our disposition. mooted Our sentence evaluation and issues proportionality are also mooted.
X
Disposition the noncapital convictions and the sentences We affirm each further the cause for of death and remand We reverse sentence offenses. Davis, opinion. with this See State consistent proceedings in Judgment part, affirmed part reversed cause remanded. Lundberg Stratton, JJ., C.J., Moyer, concur. Cook and Lundberg Stratton, JJ., concur separately. Cook and Sweeney, J., concurs in judgment. F.E.
Douglas, J., part. part concurs and dissents Douglas Resnick, JJ., dissent.
Cook, J., to with the decision vacate Green’s agree majority’s I concurring. to separately to the I write and to the cause trial court. death sentence remand (1) II majority in Part of support the allocution decision the bolster the record for (2) in that that trial suggests the Part V opinion disagree language and with all inadmissible evidence. reject, sentencing opinions, in explicitly courts must II, transcript of the and majority portion sentencing-phase the cites a Part anything if he wished that when the asked Green there was panel determines offenses,” that question to those the context of that say regard “suggests “with (Empha- on offenses.” may only noncapital the have solicited comment the court added.) confirms, transcript A of as whole sentencing-phase sis review the doubt, on his own or panel speak that the never invited Green to behalf without a in this capital in the offenses present punishment information for mitigation case. and aggravating retired the transcript panel shows that the to consider
The evening, panel Later that the returned p.m. circumstances at 5:18 mitigating First, noted it had panel Green. the that announce its verdict sentence charges accompany- aggravated found Green of the murder previously guilty 4, 5, then noted it had panel in and 6. The ing capital specifications Counts 3, 7, 8, 9, in noncapital offenses Counts guilty found Green of the previously statement, majority, not the was the by cited panel’s and 11. The next then, following: “Proceeding non-capital first, then with the sentencing this any objection panel inquires accelerating whether Defendant has sentenc- ing [noncapital as to 9 and 11 from regularly Counts offenses] date, tomorrow, (Emphasis scheduled which March 1998 at 10 a.m.” added.) object,
When counsel not asked whether panel did there was (the anything say he regard noncapital wished to “those counts” counts it 11) 1, 2, 3, 9, just had to—Counts “as referred well as on Counts 8 and 10” counts). (also noncapital panel transcript The then heard over fifteen pages of victim-impact testimony imposed noncapital for all sentence counts and specifications. Immediately offenses, after sentence for imposing noncapital into sentencing capital launched on the counts—Counts and 6— asking without ever Green whether was anything say there he wished to regard to those offenses. Huertas, V, Goodwin,
In Part cases, our citing Fautenberry majority correctly determines that the trial court when permitted erred it Moore and his family express members to opinions their about how punished Green should be for the against offenses El-Okdi. I object, Because did not agree majority’s decision to apply plain-error analysis. however, I disagree, with the majority’s instruction to the trial court on remand to “clarify whether or not they considered such expressions opinion from others as to what the sentence added.) be in (Emphasis should this case.” imposition such a require- ment here could be miscontrued cases to future be a statement this court plain error exists whenever a court trial fails to expressly state it ignored improper testimony. notes,
As the majority we may presume that do judges rely expressions opinion. inadmissible This presumption relieves trial courts of the *23 duty to expressly every discount improperly sort of in testimony admitted their sentencing opinions. By requiring the trial court to clarify whether it considered improper case, the in testimony this the majority very undercuts the presumption it cites. J., in concurs Lundberg foregoing opinion. the concurring Stratton, Douglas, J., concurring part in dissenting part. in I respectfully dissent from the II, second of the body majority opinion IV, of the and Parts V, and, IX in X I part, opinion. Part of the do so because I believe that the pronouncements of the while both three-judge panel, in wrong intemperate
places,2 were substantially accurate overall and the judgments rendered the panel be should affirmed.
I respectfully concur in majority opinion. the remainder of the I Accordingly, affirm in all respects would the of the judgments three-judge panel. trial Resnick, J., concurring part dissenting part. in in I would Alice Robie court, affirm in toto judgment the of the trial including Green’s death sentence. I agree do not with the majority’s conclusion that Green’s right of allocution was violated.
Although the majority opinion sets forth much of exchange place that took between court and Green’s attorneys prior to sentencing, exchange is detailed more below fully support my view that Crim.R. 32 was not violated:
“The Court: All right. Is there anything offenses, to. regard those Green, Counsel or prior Mr. to the Court passing sentence both those counts as well as on Counts 8 and 10?
“Mr. Cameron Anything say? [defense counsel]: we wish to “The Court: Yes.
“Mr. Wingate The only thing add, [defense counsel]: that we would Your Honor, is that it’s my understanding of the law if that —that the firearm specification which is attendant to those counts arose out of the same transaction format, and met that firearm, then there would be one which would mean there would be one 3-year sentence that would be attendant to charges, those and we just ask the Court— n
“The Court: I
that,
believe I already indicated
but that’s our finding.
added.)
“Mr.
All
Wingate:
right. Then nothing
(Emphases
further.”
examples,
panel’s
opinion,
As
discussing
State v. McGuire
1112, says
syllabus
opinion,
majority
“[i]n
Supreme
to that
of the
Court
7J2
* *
added.)
(Emphasis
are,
course,
states
only
justices
There
a total of
seven
on the
Supreme
Also,
justices
Court of Ohio —not nine.
opinion
three-judge
the two
to which of the
refers,
did,
fact,
judgment
majority.
concur with the
of the
Further,
McGuire,
continuing
opinion
three-judge
to discuss
panel says
that “[t]his
-
bright-line
overruling
rule
panel wrongheaded
earlier decisions —in
point
the view of this
is
to the
day
application
surely
where one
its blind
will almost
result
in the execution of an innocent
added.)
(Emphasis
defendant.”
respectfully
At
disagree
least five members of this court
with the
three-judge panel.
just
system
Judges
That
how our
disagree,
works.
should be able to
agreeably.
*24
opinion
majority
forth
standards set
legal
with the
quarrel
I have little
to adhere to the
and the need
of allocution
right
of the
importance
regarding
unmistakably
However,
discourse
as the above
32.
of Crim.R.
requirements
personal
was “issued
that this defendant
illustrates,
makes clear
the record
chose not to take
that this defendant
sentencing,”
speak prior
invitation to
See Green
to make a statement.
opportunity
unambiguous
advantage
5 L.Ed.2d
81 S.Ct.
States
United
counsel,
Green,”
before
as well as trial
“Mr.
explicitly
court
addressed
The trial
to Mr.
response
trial court’s
by the
passed.
As demonstrated
sentence
say
“Mr.
invitation to
Green”
this was an
clarifying question,
Cameron’s
a comment and Green did
Mr.
made
say.
Wingate
After
he wished
anything
further.” From
“nothing
stated
Wingate explicitly
Mr.
anything,
then
say
that the declara-
question
be no
there should
dialogue,
context of the entire
counsel
as a clear indication
fairly interpreted
further” should be
“nothing
tion
to make his own statement.
had no desire
statement
record
majority’s
“[t]he
I
with the
strongly disagree
Because
32,” I respectfully dissent.
a clear violation of Crim.R.
demonstrates
Douglas, J.,
opinion.
foregoing
concurs
Appellant.
Kroger
Company,
al., Appellees,
Bea et
ex rel.
(2000),
[Cite 2000.) (No. 22, 200 0 Decided December August 99-45 9 Submitted