*1
Appellant.
Jones,
Ohio, Appellee,
State
v. Jones
(2000),
Elizabeth appellant. Roxann for Jones, twenty-six has raised Elwood Resnick, Appellant, J. Alice Robie that none and have determined each have reviewed law. We of propositions Pursuant murder. aggravated for conviction appellant’s justifies reversal circum- aggravating weighed 2929.05(A), independently also we have R.C. penalty evidence, the death and reviewed mitigation against stances follow, affirm we For the reasons proportionality. appropriateness sentence. and death conviction appellant’s ASSISTANCE
INEFFECTIVE counsel law, contends appellant propositions first four In his in both fair trial him of a depriving thereby representation, ineffective provided requires assistance for ineffective a conviction Reversal phases. and, second, that was deficient show, first, performance that counsel’s defendant the defendant deprive so as to the defense prejudiced performance the deficient 668, 687, 104 S.Ct. 466 U.S. Washington v. a fair trial. Strickland Bradley Accord 693. 80 L.Ed.2d Privilege Physiciam-Patient Failure to Assert were trial counsel argues that first In his physician- testimony protected prevent to or failing object ineffective 2317.02(B). his trial counsel contends of R.C. patient privilege his trial counsel and that privilege physician-patient issue of missed the simply issue. not to raise the a tactical decision made deliberately never testify concerning McDonough trial, called Dr. John prosecution During since incriminating appellant, injury. hand This with a in the face that Nathan was struck trial revealed elicited at other evidence teeth was jaw. One of Nathan’s that broke her amount of force” “considerable under tooth was found Another autopsy. during in her stomach found appel- McDonough concluded room floor. head on the hotel Nathan’s injury presence due to the a fist-to-mouth to his hand was injury lant’s This evi- plaque. always almost dental found organism eikenella corrodens against circumstantial case of the state’s component a key dence was discovery component was key killer. The other to him as the pointed car. trunk of toolbox in the pendant Nathan’s McDonough’s Dr.' during objections several lodged counsel defense Although physician-patient attempted to assert objections none of these testimony, *5 Dr. prevent in limine to a motion counsel file Nor did defense privilege. records. medical prevent or to use McDonough’s requesting subpoena the quash a motion to addition, counsel did not file defense one of to medical records. If defense counsel had used these avenues the issue have been physician-patient privilege, directly assert the would before court, would have on the the applicability the trial and the court ruled physician-patient privilege Since no issue the was raised privilege. regarding trial, must of ineffective question we consider the the context assistance counsel. that to failing
We find trial counsel were ineffective raise the issue inappli- we the physician-patient privilege, privilege because determine that was reasons, case. For if following cable in the circumstances of this the even counsel McDonough’s to Dr. trial court would been objected testimony, had the have to objection McDonough overrule the and allow Dr. to required testify. 2921.22(B) an requires physicians R.C. that and certain others to giving aid injured person report personnel to law or gunshot enforcement stab wounds requires “any serious harm to reporting physical persons further that the * * * physician knows or has reasonable cause to believe resulted from an violence.” offense of applies though
The statute here Dr. did not McDonough report injury. even the McDonough suspected Dr. the injury injury that was fist-to-mouth when tests corrodens, presence the revealed of the he questioned appellant’s eikenella how injury. version of he the Dr. McDonough’s opinion received of a fist-to- injury mouth was when the him police substantiated contacted with the informa- tion was a the murder At Dr. suspect investigation. point, McDonough’s suspicions the injury police about and the information to conveyed him to support coalesced his belief the was caused an injury offense If Dr. violence. had McDonough suspect learned was a from source other than the a news police (e.g., report), he would have been required report injury pursuant 2921.22, R.C. personal given suspicions about was, the nature of the injury. As it he was in contact with so already police, reporting longer required. no is no situation different than if McDonough reported had appellant’s injury on his own initiative. that,
Appellant urges even that Dr. assuming McDonough report had a duty 2921.22(B), under R.C. injury question there is a further whether statute to waiver of physician-patient privilege. Appellant leads argues if privilege injury remains intact even the to the reported police. v. Antill Ohio St. O.O.2d court, four of paragraph syllabus, this in considering predecessor statute 2921.22(B), held, physician R.C. is required by “Where former [the statute] to a report gunshot law-enforcement officer a aby wound wound inflicted weapon, deadly testify, violating the former without may physician-patient as to privilege, description person, wounded to his name and *6 known, of and location of such address, description if and as the nature to examination, of the victim.” wound, by observation and treatment obtained a a wound or report “gunshot to between of distinguish see no reason We in and a of weapon” specified report a as Antill by deadly inflicted wound in the case. present harm” to R.C. 2921.22 at issue pursuant physical “serious in in to are identical the two implicated statutory report duties policies The only have reported, If the details the wound been already “[t]he situations. of can now to obstruct course of sustaining privilege that serve is purpose Antill, at at 552. find 176 Ohio at 26 O.O.2d We justice.” St. in to the situation the instant case. holding applicable Antill is Smorgala in Appellant argues exception is to the public policy this court established that there no by prosecutions. in criminal
privilege regarding sought statute evidence the state case, In this court at inapposite. citation of is held Appellant’s Smorgala “[cjourts public syllabus policy one of the not create paragraph may clearly in allow upon physician-patient privilege limitation order to otherwise in The in the evidence to drunk cases.” situation driving inadmissible be received Antill, bar, in that in where a Smorgala, judicially and is different from case found limiting physician-patient privilege inapplicable policy created 2317.02(B). rise R.C. giving privilege, it conflicted with the statute to the because Antill, statutes, case, two interplay At in the as is the issue instead instant statute, 2317.02(B), medical person R.C. physician-patient privilege 2921.22(B). statute, nel now this case we are with reporting dealing R.C. 2921.22, hence, statute, not the rule of policy; Smorgala R.C. created judicially implicated. is not Legislative is Commission 1973 conclusion bolstered Service
Our 2921.22(B) at in this portion to Am.Sub.H.B. The of R.C. issue comment No. 511. harm” personnel report physical “serious requirement case—the medical or have cause to harm resulted from an they when know reasonable believe the essentially unchanged violence—is from the 1972 enactment of R.C. offense of 2921.22(B). Laws, II, 134 Ohio Part 1951. The 1973 See Am.Sub.H.B. No. comment to H.B. No. 511 provides: * * *, also who aid the sick or requires give
“This section doctors others wounds, injuries injured, report gunshot they stab and other serious which violence, a crime of such know or have reasonable cause to believe resulted from syndrome.’ reporting part as under this requirement the ‘battered child absolute, i.e., no attaches the cases covered.” privilege the section they physician-patient privilege, if counsel had raised Even therefore, counsel, were Appellant’s not have been successful. would an issue. The failing physician-patient privilege to raise the deficient Strickland, Appellant’s proposition not met. first is over- requirements are ruled. Object
Failure to law, appellant his second Under asserts ineffective assistance interpose trial counsel specific objection where failed the admission police right statements made to after invoked counsel. *7 particular, appellant complains that counsel failed to raise the issue of “construc- interrogation” tive statements he at District 1 concerning headquarters made after his arrest. proposition Appellant
This lacks merit. counsel concedes that filed a motion fact, suppress police statements that he made to on three different occasions. In held, suppression at hearing was the close of which the court that all ruled arrest, made by appellant, voluntary. statements both before and after his were assuming Even counsel raised the could have issue of constructive interrogation specifically, more there is no reasonable the result probability of the 136, would have been different for 42 Bradley, but counsel’s errors. Ohio St.3d 373, 538 N.E.2d paragraph syllabus. three There was no interrogation, otherwise, or appellant constructive after was arrested and at 1 booked District Moreover, headquarters. by appellant only statements made were at worst marginally incriminating. See Rhode Island v. Innis 446 U.S. 298- 1682, 1688-1690, 297, 306-308, 100 S.Ct. 64 L.Ed.2d construing meaning “interrogation” of Miranda purposes v. Arizona 384 86 U.S. 1602, 16 S.Ct. L.Ed.2d 694. Accordingly, we find proposition second is not well taken.
Failure Rehabilitate Jurors law, proposition appellant his third attempt contends that counsel failed to jurors rehabilitation of opposed who the death penalty during voir Appel- dire. lant also asserts that to challenge juror (Hamilton), counsel failed for cause a who might put admitted that he be unable to experience aside his as a police officer objectively presented. consider the evidence claims Appellant’s of ineffective in this assistance context are unfounded. cites jurors Chavez, six whom counsel should have rehabilitated:
Noe, Baker, Brooks, However, Cripe, and Cook. dire voir revealed that all were unalterably opposed penalty the death and that their strong views “would prevent substantially impair performance” of their duties See jurors. 174, 17 Rogers State v. Ohio St.3d OBR paragraph Moreover, syllabus. three of the the failure to views of probe jurors who were qualification, excused for cause under death not does constitute ineffective assistance, in a if can position jurors since trial counsel is better to determine be at at 381. Bradley, rehabilitated. Ohio St.3d cause, respect to the failure to Hamilton for the tran- challenge With Juror script ground successfully reveals no counsel could have asserted as “I challenge. may agree Hamilton indicated that he would follow the law: Therefore, job with it but it’s I have to it.” we my do overrule proposition. third Mitigating
Failure to Present
Evidence
appellant
his fourth
ineffective assistance based
alleges
on counsel’s
to present
mitigation
beginning
failure
available
evidence. At the
mitigation hearing,
defense counsel informed the court that
had
always maintained he was innocent
the murder of Nathan and that the only
mitigation
present
he wanted counsel to
was residual doubt. The trial judge
accurate,
“Yes,
specifically
is,
asked
if that was
appellant replied,
it
Your Honor.”
day
On the second
court
mitigation hearing, the
informed
the defense that it would not instruct the
on
jury
residual doubt based on the
Gamer,
56-57,
decision
Ohio St.3d
As we noted State v. Ashworth 85 Ohio St.3d 1231, 1238, N.E.2d even if the court to attempted require attorney present an evidence, mitigating it cannot an unwilling provide force defendant that Moreover, attorney. evidence to his where the defendant does not want to present evidence, mitigating no societal interest counterbalances the defendant’s right 24, 28, control his own defense. v. Tyler State 50 Ohio St.3d 584. Here, nothing suggests appellant competent was not to forgo presenting any Nor mitigating appellant evidence. did ever indicate a of change heart after fact, the court’s refusal to instruct on residual In doubt. at his sentencing appellant hearing again maintained his innocence and indicated that he had twice refused to a accept plea bargain on In manslaughter. light of all the foregoing, counsel were not for failing present ineffective mitigating available evidence. We overrule fourth proposition.
VOIR ISSUES DIRE/PRETRIAL
Suppression Issues law, In his proposition eleventh appellant complains that the affidavit Officer Stokes in support of the warrant to search appellant’s vehicle contained material misstatements of fact. Consequently, appellant submits that the war- rant was invalid pursuant evidence seized to the warrant should have been In suppressed. particular, appellant grossly contends Stokes misstated was his first affidavit, murder case the Nathan in the because experience his no reason addition, police “had In asserts investigation. homicide blood on Defendant’s or traces of bloody clothes would find they to believe clothing possessions.” or warrant, stated: a Officer Stokes supporting request
In the affidavit his through who knows police officer experienced “The affiant is a trained as Nathan was badly is beaten as that when a victim experience training assailant, and the victim to the offense, of blood from there will be a transfer this or a residence that a vehicle from the assailant to items of that blood a transfer in contact with.” would come he assertions, not constitute paragraph above does
Contrary police experience. twenty years an officer with of fact for gross misstatement does not mean investigation first homicide because this was Stokes’s Simply clothing of blood on the of trace evidence probability be ignorant he would In committed a violent assault. suspect allegedly who possessions or of murder otherwise. fact, experience would indicate years his claim, that under Franks v. Delaware we noted reviewing
In
a similar
667, 682,
2674, 2684,
supporting
an affidavit
57 L.Ed.2d
438 U.S.
S.Ct.
v. Roberts
validity.
enjoys presumption
a warrant
In order to overcome the
16 O.O.3d
his
more
supporting
allegations
has “the task of
presumption, the defendant
accusations,
Id. at
or
mere desire to cross-examine.”
than conclusional
first homicide
Although
suppressed. appellant that when Officer Stokes testified
During suppression hearing, arrest, 1 in Cincinnati after his being headquarters booked at the District was charged am I with?” being “What’s on? What appellant Sgt. Lilley: going asked Nathan, of Rhoda with murder responded: charged aggravated “You’re Lilley Lilley: then asked Appellant of Rhoda Nathan’s room.” aggravated burglary placed photo then of talking Lilley are about?” burglary, you “What what theft appellant. Appellant in then asked: “What on the desk front pendant it claimed that he had never seen photo looked at the and necklace?” your “It in the trunk of car.” Lilley in his then stated: before life.
413 Appellant then it appellant denied had been his ear. The conversation between police and the ceased. The trial court ruled that statements were voluntarily given. police appellant advised of his Miranda rights during voluntary 12, 1994,
questioning September on at the close of which he declared he wanted 27, an attorney, day and on the of his arrest on September Sgt. Lilley 1995. at the acknowledged suppression police that the hearing they knew could not interrogate appellant arrested, on the day he was since he previously had invoked rights his to remain silent obtain counsel a year earlier. suppression
At a hearing, the evaluation of credibility evidence and the (1992), witnesses are issues for the 357, trier of fact. State v. Mills 62 Ohio St.3d 366, 972, 982, 582 N.E.2d citing (1982), 19, 20, State v. Fanning Ohio St.3d 57, 58, 583, See, also, OBR (1967), N.E.2d 584. State v. DeHass 10 Ohio 230, 366, 212, St.2d 39 O.O.2d 227 N.E.2d paragraph syllabus; one of the v. State (1988), 275, 277, DePew 542, 38 Ohio Here, St.3d appellant N.E.2d 547. initiated the police conversation asking the what he was being charged with. Appellant was not any Therefore, asked questions. the trial court legiti- could mately conclude that appellant’s police statements to after he was arrested were not the police result of a interrogation, but were voluntary and not elicited violation of his rights. (1983), constitutional Oregon See v. Bradshaw 462 U.S. 1039, 1045-1046, 2830, 2835, 405, 103 S.Ct. 77 L.Ed.2d (plurality opinion), 412-413 (1981), 477, construing 1880, Edwards Arizona 451 U.S. 101 S.Ct. 68 L.Ed.2d 378. Even error in assuming appellant’s statements, the admission of we find any error was harmless. See v. Richey 64 Ohio St.3d 915, Appellant’s N.E.2d 923. proposition twelfth is overruled.
Voir Dire Issues law, his proposition nineteenth systematic contends that the exclusion jurors opposed to the death penalty violated his to a fair right impartial jury. twentieth argues jurors opposed exclusion of to the death penalty jury resulted biased in favor of guilt and of death.
Appellant’s arguments are not well taken. The voir transcript dire reveals that the trial court used the correct standard for qualification jurors death established in Wainwright v. Witt 469 U.S. 105 S.Ct. 83 L.Ed.2d See, 841. e.g., State v. Wilson
Moreover, the trial judge properly determined that death-penalty views of those prevent excused “would or substantially impair” performance their of their jurors. duties as Rogers, 17 Ohio St.3d 17 OBR 478 paragraph three of syllabus. We overrule nineteenth twenti propositions eth of law.
414
TRIAL ISSUES
Admissibility Issues when prejudiced that he was law, asserts appellant proposition In his ninth officer’s portion police from evidence failed to exclude the trial court that even submits his to counsel. right invoked appellant notes where instruction, that the remained danger curative court issued a the trial though that inference improper to an jury’s attention attracted challenged portion from its admission. could be drawn invoked his that a defendant to be admitted it for evidence
Clearly, improper is 610, 618-619, (1976), 96 S.Ct. 426 U.S. Doyle v. Ohio to counsel. See right or her 548, 560-561, (1999), 98; St.3d 91, 85 Ohio 2240, 2245, State Chinn 49 L.Ed.2d wanted However, appellant 1166, 1178. the officer testified after 709 N.E.2d jury anyone immediately court reminded an the trial attorney, to talk to addition, charged court In to invoke the to counsel. right has the right police to the stop talking right also has a constitutional “[appellant] jury * * * stopped talking to the The fact he any counsel at time. request any purpose.” to counsel must not be considered right invoked his police and instructions, including instructions to follow the court’s presumed are Juries (1987), N.E.2d St.3d v. Zuern 32 Ohio testimony. See State disregard 1237, 1246; 528 N.E.2d 585, 590; v. Henderson State 75, 1082, 61, Any 1100. error St.3d v. Loza Ohio appel reject instructions. We trial court’s curative by harmless rendered proposition. lant’s ninth concerning the arguments raises two his tenth instance, that it was first claims Dr.
testimony McDonough. an for the testify expert Dr. McDonough trial court to allow error for the a fist- by was caused opinion appellant’s injury an expert state and to offer However, the of eikenella corrodens. injury presence to-mouth due to the particular subject testify on expert’s qualifications of an determination (1996), 76 v. Awkal Ohio of the trial court. State within the sound discretion concerning Accordingly, any question 968. 667 N.E.2d St.3d the abuse-of-discretion by is measured expert admission or exclusion v. Bidinost Ohio St.3d standard. See State Dr. McDonough by permitting not abuse its discretion The trial court did a course at Dr. teaches injury. McDonough testify expert as an on of the hand human bites and infections dealing with University Cincinnati not special- does injuries. McDonough While bite or fist-to-mouth caused injuries diseases, or bite in the area of elenched-fist expertise in infectious ize *11 subject. him to qualified testify expertise to hands made well on this His lack of evidence, in infectious diseases would relate to of not only weight the the its 22, 29, admissibility. State v. 471. Jells Ohio St.3d 559 N.E.2d Moreover, we testimony expert believe that such is admitted properly where the merely procedure observed the medical as to its State testified results. See 174, 181, Eley 648-649. instance,
In the second appellant claims that the court in overruling erred counsel’s to Dr. objection testimony appel defense McDonough’s derived from lant’s medical this argument, appellant records. Under asserts that Dr. since Cherney prepared issue, the in Dr. McDonough medical records not have should contents, allowed to to testify been their since the records themselves were never admitted into evidence and Dr. had no of McDonough personal knowledge Cherney the matters discussed Dr. by appellant. Chapin with State v. Ohio St.2d Although O.O.3d Dr. Cherney prepared reports, Dr. McDonough supervised surgery medical of Moreover, hand and Dr. signed reports prepared Cherney. Dr. McDonough personally was in involved the treatment of diagnosis appellant’s hand The trial in injury. court did not err permitting McDonough Dr. testify to as to the contents of reports, reports medical since the personal Appellant’s reflected matters within his knowledge. tenth proposition overruled.
Under his thirteenth of appellant complains that the trial court in opinion erred admitting expert testimony concerning the correlation between patterns wound body on the victim’s shape objects and the used in allegedly the murder of Nathan. Appellant expert asserts that the opinion testimony of specialist FBI William J. Stokes and Dr. Oliver of William the Armed Forces facts, Institute Pathology upon accepted was based widely knowledge, 702(C)(1). principles, violation of Evid.R.
In his video deposition, specialist FBI Stokes testified that “rectify- he used a enlarger,” the ing only one he knew of being used forensic photography, plane correct the autopsy the reference scale on photos of Nathan. Rhoda explained Stokes on autopsy photos the scale was not on the same level as the wounds on the victim’s body. The rectifying enlarger compensates for perspective by making wounds on plane the different properly match the that is on photos. scale the autopsy Stokes used Exhibit State a walkie-talkie hotel, available to he while was at the working help establish of the scale wounds on the autopsy photo. opined Stokes then that the character- up istics radio matched with certain on wounds Nathan’s on body depicted Exhibit 5. Oliver, pathologist and forensic a medical doctor Colonel William Lieutenant deposition. also in a Pathology, testified video with Armed Forces Institute on pattern injuries Nathan to evaluate autopsy photos Dr. provided Oliver compare certain wounds photos digital images her He converted body. homicide, i.e., door found metal chains with evidence linked physical “a that there was opined the walkie-talkie. Oliver appellant’s toolbox and on the scale” chains and marks shape and between door correspondence markings “a on correspondence” could not rule out with body victim’s and that he the victim and walkie-talkie. opinion any degree offered an with reasonable expert
Because neither should not have been certainty, claims that the scientific *12 expert testimony. as admitted in fields. The presented experts and Dr. Oliver were their
Both Stokes in admissibility expert testimony the of is set forth determining standard on it will expert testimony depends 702: is admissible whether Evid.R. whether “beyond experi the knowledge trier fact to understand matters assist the See, (1986), 22 v. Buell Ohio by lay persons.” generally, ence State possessed 203, 207, 795, 124, 129, 22 The 489 N.E.2d 801. state claims St.3d OBR admissible, event, witness any opinions lay the were at least as nevertheless 28-29, Jells, at under 53 Ohio at testimony Evid.R. See St.3d addition, 470-472. the state cites v. D’Ambrosio 185, 191, as to experts testify 616 where we held that could N.E.2d testimony rather and that such an issue possibility only probability, than becomes admissibility. sufficiency and not 702(C). compari- was under The Stokes’s admissible Evid.R. Agent body sons made the walkie-talkie and wounds on Nathan’s were he between techniques compare shoeprints fingerprints similar to used to in other cases. by was in fact called reliability comparison question The the this case into cross-examination. The of Dr. conclu- during reliability defense counsel Oliver’s challenged was also on cross-examination when he conceded effectively sions say he not for certain that a walkie-talkie or hotel door chains made the could on markings body. wound Nathan’s witnesses, fully expert
Since counsel was cross-examine the permitted jury were what properly they since the trial court instructed the to decide such no of discretion the trial court occurred. weight give testimony, by abuse Buell, 132-133, 22 22 at 489 at 803-804. Ohio St.3d at OBR N.E.2d we Accordingly, appellant’s proposition. overrule thirteenth
Sufficiency the Evidence law, appellant trial court twenty-first proposition argues In his the 29(A), granted pursuant his motions for to Crim.R. because acquittal, should have presented support was his convictions. evidence insufficient
417 evidence, reviewing inquiry When claim of insufficient the relevant is whether factfinder, state, in a any viewing light rational evidence most favorable beyond could elements of crime proven have found essential reasonable Virginia doubt. Jackson 99 S.Ct. U.S. 560, 573; State v. Jenks Ohio
L.Ed.2d St.3d N.E.2d will paragraph syllabus. two verdict not be disturbed unless court finds that the conclusion reviewing reasonable minds could reach Id. by reached the trier of fact. at at 503. court,
In its collectively brief before this the state sets forth nine facts that provide by substantial evidence of Four of nine guilt. facts cited records, the state from McDonough’s testimony derive and medical which the eikenella corrodens revealed that by hand wound was infected organism scene, that is usually found dental At the crime plaque. tooth Nathan’s was under lying discovered her head. Another tooth was recovered from her stomach during autopsy.
Looking state, at the facts set forth remaining working at the hotel at the time of the murder. also possession had of a master key open that could the hotel room where Nathan was murdered. addition, appellant’s statement as at whereabouts the time of the Moreover,
murder not be could substantiated. markings wound on the victim objects were with appellant by consistent issued to Testimony hotel. *13 similarity noted a body between wound on Nathan’s and of markings shape (walkie-talkie chains) objects possessed and hotel door that appellant or had access to.
Most was the fact that damaging unique pendant the victim’s in the found trunk of appellant’s piece car. This crucial of evidence linked to plainly appellant the murder. all of foregoing, Given sufficient evidence exists to support appellant’s Jenks. Therefore, conviction under the test in set forth we overrule appellant’s twenty-first proposition.
Jury Instructions twenty-third law, proposition appellant of asserts the court’s 2901.05(D) instruction on reasonable doubt based on the in R.C. definition However, (1984), State v. Jenkins constitutes error. with beginning reversible 15 164, 311, 264, Ohio 15 OBR St.3d 473 N.E.2d we paragraph eight syllabus, have upheld use of the in uniformly statutory definition of reasonable doubt See, e.g., v. Moore capital (1998), 22, jury case instructions. 81 Ohio St.3d 37, 1, 15. 689 appellant’s twenty-third N.E.2d We overrule proposition. 418 ISSUES
SENTENCING
Jury Instructions in trial law, asserts error court’s appellant of proposition In his fourteenth doubt, appellant argue which led the state on residual failure instruct circumstances aggravating against of any right weighing forfeited had factors, Appellant further presented. no evidence was mitigating since mitigating instructing jury in their repeatedly the trial court erred contends that verdict was a “recommendation.” is not an acceptable lack merit. Residual doubt arguments
Both these 1112, N.E.2d 80 Ohio St.3d factor. State v. McGuire mitigating addition, not diminish the of the term “recommendation” does syllabus. use law, Ohio not constitute accurately reflects does jury’s responsibility, sense of 80-81. We State v. Ohio St.3d error. Woodard proposition. overrule fourteenth law, that the court erred proposition appellant argues
In his twenty-fourth doubt instruc statutory during penalty-phase definition of reasonable using charge” “truth of the is not Admittedly, tions. the trial court’s reference Moore, for a reasonable-doubt instruction. preferred language penalty-phase However, at such is any N.E.2d error harmless that, death, jury recommending the trial court instructs the before clearly where be doubt that the circum beyond aggravating it must convinced reasonable factors, prosecution and that the has the burden outweigh mitigating stances 15, 29-30, Taylor proof on the issue. State v. Ohio St.3d manner, clearly in this jury 96. Since the court instructed well twenty-fourth proposition is not taken.
Proportionality Review law, In his claims that his sentence is proposition sixteenth committed, and to disproportionately severe relation to crime sentences cases, thus to the imposed Eighth in similar violates Amendment United law, In his seventeenth asserts that States Constitution. disproportionately compared penalty severe when other death his sentence Hamilton twenty-fifth proposition In his County. cases Ohio *14 proportionality currently employed review as does not appellant contends law, nor it follow the comport plain with either federal or state constitutional does of R.C. 2929.05. language a consistently
None of warrants reversal. We have appellant’s propositions (1) because there is no federal constitutional rejected arguments these same Moore, cases, see, 81 proportionality capital e.g., review Ohio requirement (2) 41-42, 18; statutorily required proportionality at at 689 N.E.2d St.3d
419 comparing review entails those only imposed. where death is State v. cases (1987), 111, 273, 383, 31 Ohio 31 St.3d OBR 509 N.E.2d paragraph one Steffen the syllabus. Proportionality review of accomplished sentence will be part of our independent sixteenth, sentence review. We overrule seventeenth, and twenty-fifth propositions.
Failure Merge Murder Counts law, eighteenth that the contends submission to jury murder, of two counts of aggravated where only one conviction could entered, be lawfully tainted the jury’s consideration of its sentencing recommen- dation. submits that aside, his death sentence must be set since it cannot be determined whether the inclusion of a second count of aggravated murder affected jury’s decision to recommend the death penalty.
Clearly, since both counts of aggravated
victim,
murder involved the same
counts,
court should have merged
(1990),
these
State v. Huertas
51 Ohio
22, 28,
1058, 1066,
St.3d
553 N.E.2d
instead of merely imposing “concurrent”
Moore,
death sentences. We confronted this
argument
same
Consecutive Sentencing law, his twenty-second proposition of appellant claims that a trial court legally impose cannot imprisonment term of to be consecutively served to a However, death sentence. the issue is rendered moot by either the execution of the death by sentence or the failure to execute See, the death sentence. e.g., State v. Davie 80 Ohio 245, 262; Moore, St.3d Ohio St.3d Appellant’s N.E.2d at 16. twenty-second proposition is overruled.
Cumulative Error Under his twenty-sixth proposition appellant contends that individual errors, and collective whether not, raised counsel necessitate reversal of his Nevertheless, conviction and death sentence. trial, received fair any error is nonprejudicial. found to be “Such prejudicial errors cannot become by sheer weight numbers.” State Hill *15 proposi- appellant’s twenty-sixth overrule Accordingly, 1084. we
tion. MISCONDUCT
PROSECUTORIAL seventh, sixth, asserts a fifth, propositions In eighth and Appellant trial. prosecutorial throughout number misconduct of instances individually is considered and collective- alleged the misconduct argues when Appel- his convictions death sentence. ly, the result must be reversal of and essentially summary introductory argument of law lant’s fifth by appellant. the submitted propositions other three and, improper
The is whether remarks were prosecutorial test for misconduct so, if of the accused. State they prejudicially rights whether affected substantial 13, 14, 14 v. OBR The Smith trial, the analysis culpability “is fairness of the not the the touchstone of prosecutor.” Phillips 455 U.S. 102 S.Ct. Smith 78, 87. L.Ed.2d proposition, group by appellant the first of comments cited under his sixth prosecutor appealed jurors’ passions
he that the when improperly claims he counsel for to shift the murder to attempting culpability criticized defense for Their employees: other hotel “It’s unfortunate. names have been very dragged cameras, in front of the in front of through press, being the mud accused of objected, murder. A murder that Jones did.” Defense counsel but the Elwood I court instructed the heard evidence as well as did. I’ll simply jury: “[Y]ou you prosecutor’s let what was McCall and Henry.” decide said about to be a fair to the appears strategy shifting comment rebuttal defense hotel, hardly who worked at can suspicion of the murder others and be jurors’ passions. an improper appeal characterized as Appellant complains prosecutor also that the the evidence misstated assert- had the kind used ing only banquet department of walkie-talkie comparison the victim’s Defense was not objection wounds. counsel’s ruled upon, prosecution but one did fact Exhibit testify witness kind, department, walkie-talkie of was one used which banquet Although depart- worked. one defense witness asserted that different kind, the ments at the hotel had walkie-talkies of that statement was prosecutor’s harmless. prosecutor next cites that the argued comments where defense a radio made mark” on the where body,
“conceded that victim’s intimated that prosecutor girlfriend, asserted further Earlene to, Metcalfe, objected him. Both were the trial lied for comments court However, prosecutor to claim that objections. sustained both continued addition, lied, prosecutor at trial. though Metcalfe even she never testified belonged appellant, that shoes the search of her residence argued during found at trial that assertion. with the though supported agree even no evidence We *16 that the shoes were appeals concerning court of Metcalfe and comments However, because to facts not in evidence. these isolated improper they alluded of a fair deprive appellant comments were not outcome-determinative and did not trial.
Appellant argues prosecutor next under his seventh of law that the counsel, the role tactics of and denigrated suggested defense Here, appellant defense counsel were to hide the truth. attempting referring to prosecutor’s attempt suspicion remarks on defense counsel’s to cast for the trial, employees. murder on other hotel defense counsel elicited testimo- During McCall, ny employee from hotel Lisa Dietz that another hotel Bill who employee, murder, left the hotel on the to day keys had access master and radios at rested, the hotel. Bill After the defense the state called McCall as a rebuttal witness, implication and he refuted the that he had been involved the murder. During closing argument, prosecutor commented on defense counsel’s “search doubt, remark, to, for not a search objected for the truth.” This not was not deprive appellant outcome-determinative and did not of a fair trial. addition, points during prosecutor’s comments made closing
argument defense concerning expert Solomkin’s regarding nature of appellant’s injury. objection hand Defense counsel’s to the comments Appellant was overruled. argues prosecutor’s comments improperly implied expert that the defense him say would whatever defense counsel wanted However, to say. these comments were made during argument. Given the case, substantial evidence submitted this we find that these isolated comments made during argument nonprejudicial. were
Appellant prosecutor also claims that misrepresented defense counsel’s closing argument during mitigation phase, and that the defense had “forfeited * * * at stage They this of the trial. are to fill in asking you these blanks that are their mitigation. They presented There is none. have none and now they them, want fill in you basically some to create it things evidence as were.” However, these comments constituted fair comment the prosecutor and were improper prejudicial. neither nor present any mitigation chose except for residual doubt. eighth proposition
Under his prosecutorial asserts misconduct prosecutor’s use of the nature an and circumstances the offense as aggravating circumstance. During closing argument mitiga- the rebuttal tion phase, prosecutor said: who has lady the life of this point, to him at that is worth more
“What left her alive. him a trinket? He could have absolutely nothing done (Indicating) here. Right his choice? What’s him in Had he left up this case. greed tripped it was that thankfully
“And at that but he decided caught he would have never been go, maybe [sic ] value he through. that he went That’s the process that’s the point weighing life. put lady’s on that Miss you give circumstance will you weigh aggravating
“I trust when than he did.” Nathan’s life more worth the nature and prosecutor arguing that the was objection
Defense counsel’s an circumstance was overruled. aggravating of the offense as circumstances erroneous, but found improper this statement to be appeals court of found type prosecutorial argument This nonprejudicial. the comment be Wogenstahl in State v. directly proscribed
311, of the syllabus: two paragraph in of a trial to make penalty phase capital
“It for improper prosecutors is circumstances of the offense are jury before a that the nature and any comment ” circumstances.’ ‘aggravating after the attorney object immediately the defense did Wogenstahl, Unlike in Wogenstahl. comment violated the law enunciated comment was made. The penalty-phase proceedings, But in entire we find the error was view 281, 345, (1983), 452 v. 6 Ohio St.3d 6 OBR N.E.2d harmless. See State Williams 1323. consideration, instances of error that foregoing
In the
we have found several
(1990),
in
A
situation arose
State v. Lott
were not outcome-determinative.
similar
Lott,
160,
166,
555
293. In
CONSTITUTIONALITY penalty Ohio’s death appellant challenges fifteenth his However, previously we have found grounds. scheme on numerous constitutional
423 See, (1987), 56, to lack merit. Zuern 32 arguments e.g., these State v. Ohio St.3d 585; Jenkins, 164, 311, 264; N.E.2d 15 Ohio 473 512 St.3d 15 OBR N.E.2d 97; St.3d 572 State v. 37 Watson Ohio N.E.2d Coleman 792; Buell, St.3d Ohio Ohio St.3d OBR Therefore, summarily rejected. these claims State v. may N.E.2d be 568, syllabus. St.3d summarily Poindexter 36 Ohio We proposition. overrule fifteenth
INDEPENDENT REVIEW AND PROPORTIONALITY
Appellant
being
was
with and
charged
principal
convicted
offender
Nathan
murder of Rhoda
course of an
aggravated
during
aggravated burgla-
2929.04(A)(7).
ry
aggravated robbery.
merged
R.C.
These counts are now
Moore,
See
sentencing purposes.
for
81 Ohio
Since chose not any mitigating there little character, evidence us to review. about Nothing appellant’s history, record, background, as in the than suggests mitigating reflected factors other he employed, and was married. maintained his innocence trial, throughout claimed to have twice turned down offers to plead guilty only to a lesser offense. The mitigating presented factor has is residual *18 doubt, 2929.04(B). acceptable which is not an factor under mitigating R.C. See McGuire, 390, 1112, Ohio St.3d we syllabus. N.E.2d hold Accordingly, the merged aggravating outweigh any mitigating circumstances factors a beyond reasonable doubt. find the in penalty
We
death
this case to
appropriate
proportionate
be both
and
compared with
capital
combining
when
similar
cases
murder with aggravated
see,
344,
311;
75 Ohio
burglary,
e.g., Wogenstahl,
St.3d
N.E.2d
State v.
(1994),
Campbell
339;
69 Ohio St.3d
630 N.E.2d
and murder with aggravated
see,
robbery,
1253;
e.g., State v. Green
66 Ohio St.3d
609 N.E.2d
Davie,
80 Ohio St.3d
Based on all affirm the we foregoing, appellant’s convictions and including the death sentence.
Judgment affirmed. JJ., concur. Lundberg Sweeney F.E. Stratton, Douglas, and JJ., C.J., separately. concur and Cook, Moyer, Pfeifer in of the conviction majority’s the affirmance concurring. concur J., I Cook, however, I with the resolution of Jones’s first disagree, and death sentence. argues lawyers performed that his proposition of which Jones McDonough’s testimony grounds to Dr. on ineffectively failing object to 2317.02(B). no R.C. The finds ineffec- physician-patient privilege. majority See required any court have been to overrule” tive because the trial “would assistance from the testimony. Dr. This conclusion stems belief objection McDonough’s to to injury disclosed the authorities under McDonough that Dr. could have Jones’s 2921.22(B), any privilege. in the I thereby resulting evidentiary R.C. loss it analysis misapplying in the I view as join majority’s cannot because privilege and statutes. reporting 2317.02(B)(1) physician “concerning that a shall not a testify R.C. states * * * a or physician by patient communication made that relation * * * turn,
physician’s patient.” broadly to a “communication” is advice information, in any or “acquiring, recording, transmitting any to include defined manner, facts, concerning any opinions, necessary or statements to enable a * * * treat, physician prescribe, patient.” or act for a R.C. diagnose, 2317.02(B)(4)(a). Thus, of an privilege patient’s covers mere exhibition injury physician any to his as well oral or written communications between 491, 14 patient Baker v. Indus. Comm. 135 Ohio O.O. physician. and St. one of the A “commu paragraph syllabus. physician-patient results, records, charts, physician’s nication” also includes laboratory and 2317.02(B)(4)(a); see, also, diagnosis. R.C. State v. Webb 1032. This the “communication” broad definition privilege much the evidence by physician-patient encompasses covered and from McDonough. testimony elicited The and evidence. about testimony it, surgery a hand suffering injury, diagnosis performed, Jones the eikenella all laboratory concerning organism protected results corrodens were by the privilege. 2921.22(B) exception majority provides statutory decides R.C. that the obtained from Dr.
physician-patient privilege evidence 2921.22(B) upon McDonough imposes duty were therefore admissible. R.C. physicians report any gunshot “to law enforcement authorities or stab wound * * * harm physician any physical or observed serious treated *19 * * * knows cause to believe persons physician that the or has reasonable Dr. that McDonough suspected from an offense of violence.” Because resulted hand that injury, majority fist-to-mouth contact caused Jones’s the determines 2921.22(B) applies R.C. even the though McDonough actually report did to law injury enforcement authorities.1 conclusion, support majority its the relies on State v. Antill interpreted predecessor
Ohio St.
26 O.O.2d
which
the
2921.22(B)
statute to R.C.
without
the
permitting physician testimony
violating
Antill,
physician-patient privilege.
explained
purpose
this court
that the
physician-patient
patients
the
is to
to disclose
all their
privilege
encourage
fully
symptoms
physicians
to their
“without fear that such matters will later become
Antill,
64-65,
368,197
public.”
supra,
The reasoning despite the Antill to this case fact that Dr. 2921.22(B). McDonough report did not injury police Jones’s under R.C. But Antill’s reasoning suggests only physician-patient is lost privilege when there report pursuant has been an actual physician’s to the statutory duty. Indeed, emphasized Antill court publicity which against “[t]he privilege supposed protect has already place” taken because the details of the wound “must have been reported by physician to a law-enforcement added.) Antill, (Emphasis officer.” Ohio St. 26 O.O.2d at case, however, N.E.2d at 552. In this because Dr. McDonough report did not injury, Jones’s no “publicity” yet of it had taken place. majority’s reasoning therefore extends the Antill rationale to a situation where the purpose been, privilege could have but was not actually, compromised by disclosure. Even assuming majority’s one, extension of Antill is a logical Antill is itself flawed and deserves reconsideration. The Antill court basically concluded duty to disclose under R.C. 2921.22’spredecessor exception created an physician-patient privilege in R.C. 2317.02. This view is unsupported by 2317.02(B) either the disclosure statute or privilege statute. provides R.C. 2921.22(B)’s requirement triggering The threshold reporting duty physician’s for R.C. is the wound, any gunshot wound, physical observation of physician stab or serious harm that the knows gunshot wounds, or believes to have resulted from an offense of violence. As Jones no had or stab only remaining predicate claiming duty report part McDonough on the of Dr. is serious physical McDonough arguably physical harm. Dr. treated Jones for “serious harm” within the term; statutory hospitalized surgery definition of that Jones was and underwent for his hand 2901.01(A)(5)(a) (c). injury. See R.C. *20 from his or her doctor prevent a to patient that allows privilege testimonial It relationship. out of the arising physician-patient matters on certain testifying here. See applicable of which is exceptions, none subject to numerous built-in is 2921.22(B) (c). to 2317.02(B)(1)(a) contrast, commands a doctor R.C. to R.C. otherwise be confiden enforcement that would information to law report patient however, not, testify command the doctor to tial. The disclosure statute does 2921.22(B)’s duty reporting of R.C. in court. The extension about those matters 2317.02(B) blurs the distinction privilege mistakenly an to the R.C. exception into supersedes, of disclosure confidentiality, duty which duty between the unaffected disclosure.2 by which is evidentiary privilege, an an created, today, endorses is majority and what the the Antill court What (based public on the interest privilege to the testimonial exception additional crime) provided by not Assembly specifically has the General detecting in this judicial not assistance Assembly does need statute. But the General exceptions physician-patient to the recognized it has regard. Significantly, R.C. example, a to disclose. For involving duty in situations privilege 2921.22(E)(5) relationship is not a physician-patient states that “the expressly injury burn or the cause regarding person’s evidence excluding ground duty report from the burn any judicial proceeding” arising injury the burn 2921.22(E). 2921.22(F)(2) R.C. also states Similarly, R.C. injuries under 2921.22(F)(1) violence under R.C. report” “information domestic regarding Thus, privilege. by physician-patient shall not be excluded is admissible and necessarily duty that a to disclose does legislature apparently recognizes states have likewise privilege. testimonial Other destroy physician-patient duty evidentiary privilege, and an reporting the distinction between recognized exempt information and enacting evidentiary statutes or rules case) (such the physician-patient this from given by McDonough as that 60-427(e) (no See, for information re- e.g., privilege privilege. Kan.Stat.Ann. Commentary Legislative No. 511 majority to Am.Sub.H.B. 2. The cites the Service Commission’s (which 2921.22[B]) support statute codifies an its conclusion disclosure enacted R.C. majority emphasizes physician-patient privilege. exception the commission’s to the testimonial absolute, i.e., part no reporting requirement this of the section is “[t]he comment under privilege in the covered.” attaches cases increasingly compelling, glance phrase privilege seems it becomes at “no attaches” While first Indeed, describing phrase of a sentence in context. comes the end less so when examined privilege requirement. reporting The commission’s comment makes clear that no the nature of the 2921.22(B). required report R.C. other applies is to law under when doctor enforcement words, making report required “privilege” prevent from R.C. there is no a doctor 2317.02(B) remains, however, entirely 2921.22(B). privilege is an of R.C. the testimonial Whether contrary inappropriately majority’s elevates the commission’s view to the different matter. The 2317.02(B). 2921.22(B) exception no explanation to R.C. And of R.C. to a codified comment from an exception appears statutory language. in the such 503(d)(6) (no patient); quired reported by physician to be VtR.Evid. privilege statute); required reported by extends to medical conditions be Alaska R.Evid. 504(d)(5) (no applies privilege physician, to information that psychotherapist, or 504(d)(7) (no patient required to report) physician-patient privilege applies (no in a criminal West’s proceeding); physician- Ann.Cal.Evid.Code and 998 patient in a criminal I privilege proceeding). necessarily While do not disagree with Antill *21 balancing the court’s with physician-patient public. the privilege in criminal justice, interest the commits that balancing Constitution to the General not to Assembly and this court. See v. Smorgala Ohio 222, 223-224, St.3d Accordingly, 674-675. I would hold R.C. 2921.22(B) is statutory not a exception physician-patient in privilege R.C. 2317.02(B).
I
with
disagree
majority
therefore
trial court
would have been
required
objection
McDonough’s testimony
to overrule an
to Dr.
based on
I
physician-patient privilege.
performed
also believe that
trial counsel
Jones’s
in
to raise this
deficiently
failing
objection. By failing
object, Jones’s trial
in
counsel
effect waived the
Dr.
link
privilege
McDonough
allowed
offer a
in the state’s circumstantial
Dr.
pres-
case.
about the
McDonough’s testimony
ence of
eikenella
in
organism
corrodens
Jones’s hand wound
corroborated
prosecution’s theory
injury.
of a fist-to-mouth
This
medical
along
evidence
with
tied
upon
it
Jones to the fatal blows inflicted
Nathan.
Nevertheless, I
that,
do not
but for
performance by
believe
the deficient
trial
counsel in failing
physician-patient
to raise the
is a
privilege, there
reasonable
that Jones
probability
acquitted.
would have been
Even if
Jones’s
counsel
had
the objection, they
raised
would
have been successful
completely
Dr.
barring
from
McDonough
testifying.
McDonough’s testimony that he
treated Jones was not
Jenkins
privileged. See
v. Metro.
Ins. Co.
Life
Ohio St.
15 O.O.2d
(physician-patient
not bar
privilege
testimony regarding
professional
does
the fact of
consultation by
date).
consultation,
a person on a certain
coupled
police’s
This fact
with
from hotel
discovery
employees
injured
morning
Jones had
his hand on the
murder,
provided
Nathan’s
circumstantial evidence of
identity
Jones’s
as the
Further,
killer.
there was
evidence
Nathan’s wounds
were inflicted
objects
consistent with door chains found
car
Jones’s
and walkie-talkie that
Jones
while
working
key
used
component
hotel. Another
the state’s
case
missing pendant
was that Nathan’s
car.
discovered
Jones’s
Given all
Jones,
of I
against
evidence
cannot conclude that exclusion of Dr. McDon-
ough’s testimony about
to a
injury
Jones’s
would have led
different trial outcome.
I
reject
would 'therefore
first
on that
proposition of law
basis.
reservations,
judgment
majority.
I concur in the
these
expressing
While
J.,
concurring opinion.
in the
C.J.,
foregoing
concur
Moyer,
Pfeifer,
Dairy
al., Appellees,
v.
rel. Coxson et
The State
ex
Appellant.
Ohio,
Inc.,
Mart
Stores
rel.
Mart
Dairy
as State ex
Coxson
Stores
[Cite
Ohio,
Inc.