THE STATE OF OHIO, APPELLEE, v. MCNEILL, APPELLANT.
No. 97-929
Supreme Court of Ohio
October 28, 1998
83 Ohio St.3d 438 | 1998-Ohio-293
Criminal law—Aggravated murder—Death penalty upheld, when. APPEAL from the Court of Appeals for Lorain County, No. 95CA006158. Submitted May 12, 1998.
{¶ 2} On the evening of May 13, 1994, Blake Fulton and Robert Rushinsky drove about the city of Lorain seeking to purchase crack cocaine. Seeing several men they believed to be crack dealers at the corner of Massachusetts Avenue and G Street, the two stopped. As was customary, the first dealer to the car, McNeill, got the sale.
{¶ 3} Fulton and Rushinsky knew McNeill from prior drug transactions. Rushinsky, who was riding in the front passenger seat of the two-door car, let McNeill into the back. As McNeill directed, Fulton drove south on Massachusetts Avenue and headed for McNеill’s residence, where McNeill stated he kept the crack cocaine. As they drove, McNeill asked Fulton for twenty dollars. Fulton replied: “No. * * * You know how it works. I want to see [the crack] first.” Fulton and McNeill continued to argue about the money. When the trio reached McNeill’s house, Fulton stopped the car. McNeill produced a gun, saying, “This is a stickup,” and “I want the money.” Fulton jumped from the car and ordered McNeill out. As Rushinsky leaned forward and opened his door, McNeill grabbed the keys from the ignition and jumped out.
{¶ 4} McNeill aimed his gun at Rushinsky and asked if he had any money. Rushinsky replied he had none. McNeill then pointed the gun at Fulton, saying,
{¶ 5} While Fulton was trying to start the car, McNeill returned. McNeill put his gun to Fulton’s head, said, “Played me for a bitch,” and shot Fulton. Fulton died several hours later.
{¶ 6} The grand jury indicted McNeill on one count of aggravated murder,
{¶ 7} The jury found McNeill guilty of aggravated murder with a robbery-murder specification. Following the penalty hearing, the jury recommended the death penalty. Consistent with the jury’s recommendation, the trial judge imposed a death sentence. The court of appeals affirmed McNeill’s conviction and sentence. McNeill now appeals to this court as оf right.
Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E. Rosenbaum, Chief Counsel, Criminal Division, for appellee.
Annette Powers and Renee Green, for appellant.
COOK, J.
{¶ 8} In accordance with the mandate of
I
{¶ 9} Repeatedly, we have held that
II
Felony-Murder
{¶ 10} In his first and second propositions of law, McNeill contends that he is not guilty of aggravated murder under
{¶ 11} McNeill argues the attempted aggravated robbery ended the moment he walked away from Fulton’s car. When McNeill returned and killed Fulton, the killing was “a new and separate crime” that did not occur while he was attempting to rob Fulton.
{¶ 13} Because the killing and predicate felony need not be simultaneous in order to constitute a felony-murder, the tеchnical completion of one before the commission of the other does not remove a murder from the ambit of
{¶ 14} The sequence of events in this case, examined in light of time, place, and causal connection, amounts to “one continuous occurrence.” First, the attempted aggravated robbery and the killing were closely connected in time. Although the precise time lapse between McNeill’s exit from Fulton’s car and his return is unknown, a trier of fact could infer from the testimony of Rushinsky and Brittany Pasenow, one of the four child witnesses, that McNeill returned within a few minutes.
{¶ 15} Second, the two crimes occurred in the same place. Because McNeill took Fulton’s keys, Fulton was unable to leave between the robbery attempt and the murder. Third, and most significant, the murder would not and could not have occurred but for the attempted robbery. Had McNeill not taken Fulton’s keys in attempting the robbery, Fulton could (and presumably would) have driven away.
{¶ 16} McNeill also argues that robbery was not the motive for the killing, as shown by the fact he did not take Fulton’s money after the shooting; rather, McNeill claims he shot Fulton because he felt humiliated. But
{¶ 17} Our review indicates sufficient evidence supporting the jury’s guilty verdict. On these particular facts, McNeill’s brief departure before returning to murder Fulton is without legal significance. McNeill’s first and second propositions of law are therefore overruled.
III
“Other Acts” Evidence
{¶ 18} In his third proposition of law, McNeill argues the state introduced evidence of “other acts” in violation of Evid.R. 404(B). Lorain Police Detective Arnie Berrios testified he arrested McNeill in 1992 for selling drugs at the corner of Massachusetts Avenue and G Street; McNeill possessed over twenty-five doses of crack at the time. The trial court properly instructed the jury it could not consider the testimony “to prove the character of the Defendant in order to show that he acted in accordance with that character,” but could consider it in determining “identity and/or knowledge.” Absent evidence to the contrary, we presume the jury followed these instructions. State v. Woodard (1993), 68 Ohio St.3d 70, 73-74, 623 N.E.2d 75, 78.
{¶ 19} Pursuant to Evid.R. 404(B), evidence of other acts, crimes, or wrongs is admissible to prove identity. State v. Allen (1995), 73 Ohio St.3d 626, 632, 653 N.E.2d 675, 683; State v. Davis (1991), 62 Ohio St.3d 326, 338, 581 N.E.2d 1362, 1374. In this case, Berrios’s testimony was relevant to corroborate Rushinsky’s identification of McNeill as the shooter. Rushinsky testified he and Fulton knew McNeill from prior drug purchases. However, on cross-examination the defense attacked Rushinsky’s identification, forcing him to admit he initially
{¶ 20} McNeill further contends Berrios’s testimony was unnecessary to prove identity beсause the four children also identified McNeill. However, need is irrelevant to an Evid.R. 404(B) objection; moreover, McNeill also attacked the reliability of the children’s testimony.
{¶ 21} Because Berrios’s testimony was admissible to prove identity under Evid.R. 404(B), McNeill’s third proposition of law is overruled.
IV
Competency of Child Witnesses
{¶ 22} In his seventh proposition of law, McNeill contends Christopher Ryan and Ronald “Junior” George were incompetent to testify as witnesses. Christopher was seven years old at the time of the trial and Ronald was six.
{¶ 23} Evid.R. 601(A) provides: “Every person is competent to be a witness except * * * children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”
{¶ 24} In determining the competencе of a child witness, the trial court must consider the child’s ability to receive, recall, and communicate accurate impressions of fact, understand truth and falsity, and appreciate the responsibility to tell the truth. State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus. Because the trial court has the opportunity to observe the child’s appearance, manner of responding to questions, general demeanor and ability to relate facts accurately and truthfully, its determination will not be reversed absent
{¶ 25} Applying the foregoing to the record before us, we find no abuse of discretion by the trial court in determining the children were competent to testify. While the children could not answer every question posed, the transcript indicates they were in fact able to receive, recollect, and communicate impressions of fact, and appreciate the responsibility to be truthful.1
{¶ 26} Moreover, “[n]o federal court has held that the Constitution places limits on allowing even the youngest child to testify at trial,” so long as the child is found to be competent. Walters v. McCormick (C.A.9, 1997), 122 F.3d 1172, 1176. Because the trial court did not abuse its discretion in finding Christopher and Ronald competent to testify, McNeill’s seventh proposition of law is overruled.
V
Racial Underrepresentation on Venire
{¶ 27} In his sixteenth proposition of law, McNeill contends underrepresentation of African-Americans on the jury venire violated both the Sixth Amendment right to be tried by a jury representing a fair cross-section of the community, and the Fourteenth Amendment equal protection guarantee.
{¶ 29} The Sixth Amendment guarantee to a jury trial “contemplates a jury drawn from a fair cross section of the community.” Taylor v. Louisiana (1975), 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690, 696. To establish a violation of this requirement, the “defendant must prove: (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the representation is due to systematic exclusion of the group in the jury-selection process.” State v. Fulton (1991), 57 Ohio St.3d 120, 566 N.E.2d 1195, paragraph two of the syllabus, citing Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 586-587.
{¶ 30} Other than his personal observations and those of defense counsel that the venire appeared imbalanced, McNeill failed to produce evidence demonstrating that African-Americans were underrepresented on the venire in relation to their percentage in the community. More important, McNeill did not produce, and defense counsel conceded he could not produce, any evidence of the systematic exclusion of African-Americans from the jury selection process employed in Lorain County.
{¶ 31} Moreover, McNeill’s systematic-exclusion claim is based solely on alleged underrepresentation on his venire. But underrepresentation on a single venire is not systematic exclusion. See Ford v. Seabold (C.A.6, 1988), 841 F.2d 677, 685. Cf. Duren, 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588 (discrepancy “not just occasionally, but in every weekly venire for a period of nearly a year” showed systematic exclusion).
{¶ 32} Turning to McNeill’s equal protection claim, we base our analysis on the test set forth in Fulton:
“A defendant may also reasonably bring a federal equal protection challenge to the selection and composition of the petit jury by adducing statistical evidence which shows a significant discrepancy between the percentage of a certain class of people in the community and the percentage of that class on the jury venires, which evidence tends to show discriminatory purpose, an essential element of such cases.” 57 Ohio St.3d at 123-124, 566 N.E.2d at 1200.
{¶ 33} The challenger must show underrepresentation over a significant period of time, and may “ ‘support[ ] the presumption of discrimination raised by the statistical showing’ ” by exposing the selection procedure as susceptible of abuse or racially partial. Id. at 122, 566 N.E.2d at 1199, quoting Castaneda v. Partida (1977), 430 U.S. 482, 494-495, 97 S.Ct. 1272, 1280-1281, 51 L.Ed.2d 498, 510-511.
{¶ 34} On these terms, McNeill’s equal protection challenge also fails. McNeill did not attempt to show underrepresentation over a significant period of time: he points to only his own venire and indeed failed to show underrepresentation there. Accordingly, we overrule McNeill’s sixteenth proposition of law.
VI
Voir Dire
{¶ 35} In his ninth proposition, McNeill contends six veniremen were improperly excused for cause due to their views on the death penalty. McNeill did not object to five of these excusals, рreserving the issue only with respect to
{¶ 36} “The standard for determining whether a prospective juror may be excluded for cause due to his or her views on capital punishment is whether that prospective juror’s views would ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” State v. Williams (1997), 79 Ohio St.3d 1, 5, 679 N.E.2d 646, 653, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589. We will reverse the trial court on voir dire matters only where the court has abused its discretion. Id. at 6, 679 N.E.2d at 653.
{¶ 37} Under the “prevent or substantially impair” test, we cannot hold the trial court abused its discretion in removing Bader for cause. After questioning by the court, the prosecution, and the defense, Bader stated: “I don’t believe I could honestly say that I could put my name on a piece of paper saying I could give someone the death penalty. * * * [T]o make a decision * * * that would put a person to death * * * I don’t think I could do it. In all honesty.” Asked if his views on capital punishment were so strong they would substantially impair his ability to vote for a sentence of death, Bader replied, “In that case I would say yes, yes they are.”
{¶ 38} In light of Bader’s responses, the trial court did not err in finding that Bader’s ability to follow the law was substantially impaired. See, e.g., State v. Keith (1997), 79 Ohio St.3d 514, 519-521, 684 N.E.2d 47, 56. McNeill’s ninth proposition of law is overruled.
VII
Victim-Impact Evidence
{¶ 39} In his fourth proposition, McNeill asserts the state impermissibly introduced victim-impact testimony into the guilt and penalty phases of his trial. During the guilt phase, the prosecutor made the following statement in closing argument:
“Blake Fulton was a human being. He had a family, you may have noticed, that sat through a lot of this trial. His picture is in his personal effects. He was a master locksmith. He had a life.”
{¶ 40} In the absence of an objection, we limit our review of the prosecutor’s comments to that standard established for plain error. State v. White (1998), 82 Ohio St.3d 16, 22, 693 N.E.2d 772, 778. In light of the other evidence adduced at trial, we hold the brief, general statements by the prosecutor that Fulton had a life, a job, and a family were not outcome-determinative, and therefore the admission of the statements was not plain error. See State v. Davis (1996), 76 Ohio St.3d 107, 118, 666 N.E.2d 1099, 1109.
{¶ 41} During the penalty phase of the trial, McNeill presented the testimony of Darnel Haney, his “Big Brother,” in mitigation. Defense counsel asked if there was “any positive contribution that Freddie can make to society, to life in general, to his own life, if he were to be in prison.” Haney replied that McNeill “has the ability to deal with people. I mean, he’s a very humorous type of person. He brings a lot of joy. He brought a lot of joy to my life and people around.”
{¶ 42} Over defense objection, the trial court permitted the state to present the testimony of Fulton’s son in rebuttal. The prosecutor posed the following question: “Okay. There has been testimony in this case that the Defendant has brought joy to the lives of at least one person. Can you tell the jury what he’s brought to you and your mother?” The boy replied “sadness.” The boy further testified he was sad “because he [McNeill] took my father away from me. * * * We used to go to baseball games and camp outs.”
{¶ 43} In discharging its burden to prove, beyond a reasonable doubt, that the aggravating circumstances outweigh the mitigation factors, see
{¶ 44} Rebutting evidence is that given to explain, refute, or disprove new facts introduced into evidence by the adverse party; it becomes relevant only to challenge the evidence offered by the opponent, and its scope is limited by such evidence. See N.W. Graham & Co. v. W.H. Davis & Co. (1854), 4 Ohio St. 362, 381; 6 Wigmore, Evidence (Chadbourn Rev.1976) 672-679, Section 1873. It is within the trial court’s discretion to determine what evidence is admissible as proper rebuttal. N.W. Graham & Co., 4 Ohio St. 362. See, also, State v. Dunlap (1995), 73 Ohio St.3d 308, 316, 652 N.E.2d 988, 996. In this instance, McNeill offered mitigating testimony of a broad nature: that he “brings a lot of joy. He brought a lot of joy to * * * people around.” McNeill thus opened the door to “other evidence” in rebuttal—evidence showing that McNeill did not bring joy to others. The trial court’s decision permitting the state to rebut Haney’s testimony by offering the contradictory testimony of Fulton’s son was not “unreasonable, arbitrary or unconscionable.” State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715, 719.
{¶ 45} Even assuming the boy’s testimony was improper rebuttal and thus its admission error, the error would be harmless. The use of victim-impact evidence during the penalty phase of a capital case is not a constitutional violation. Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720. See, also,
{¶ 46} In this case, there was ample evidence to support the jury’s recommendation. Moreover, the boy’s testimony was brief, not highly emotional, and, essentially, cumulative. The jury was aware Fulton had a family; testimony
VIII
Prosecutorial Misconduct
{¶ 47} McNeill’s fourth proposition, divided into several subparts, also claims further instances of prosecutorial misconduct.
{¶ 48} In Part A(1), McNeill claims that introducing testimony about his prior drug arrest was misconduct. We rejected this argument in our discussion of McNeill’s third proposition, above.
{¶ 49} In Part A(2), McNeill claims the prosecutor committed misconduct by asking Kimberly Sanford whether McNeill sold drugs. However, Sanford replied she did not know. Hence, no prejudicial evidence was elicited. Furthermore, the prosecutor had a good-faith basis for asking the question. See State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272, paragraph two of the syllabus, overruled on other grounds, State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112.
{¶ 50} In Parts A(3) and A(4), McNeill claims prosecutorial misconduct in the guilt phase closing argument. McNeill did not object to any part of the closing argument. Thus, the alleged improprieties in the prosecutor’s remarks are waived absent plain error. State v. White (1998), 82 Ohio St.3d 16, 22, 693 N.E.2d 772, 778. Our review of the comments at issue does not reveal plain error. Taken in context, the prosecutor’s statement that the state’s case was “uncontradicted” was not a comment on the defendant’s failure to testify. Additionally, the prosecutor stated that despite claims by the defense that the state lacked evidence, if the jury determined the state met its burden it would make “no difference” that “a ton more” could have been presented “if we’d have done the case the way someone else would
{¶ 51} In the penalty phase, McNeill objected to the prosecutor’s use of the word “assassinate” to characterize the murder; the trial court sustained his objection and asked counsel to rephrase the question. The record shows the word is consistent with the evidence adduced at trial; Rushinsky testified McNeill suddenly and unexpectedly put his gun to the back of Fulton’s head and pulled the trigger. The physical evidence corroborated this testimony. Thus, the prosecutor’s word choice was not prejudicial misconduct. See White, 82 Ohio St.3d at 22-23, 693 N.E.2d at 779.
{¶ 52} McNeill objected to none of the other alleged instances of penalty-phase misconduct. We have reviewed each statement and find no plain error; these issues are therefore waived. Id. at 22, 693 N.E.2d at 778. See, also, State v. Hill (1996), 75 Ohio St.3d 195, 201-202, 661 N.E.2d 1068, 1076-1077; State v. Gumm (1995), 73 Ohio St.3d 413, 422, 653 N.E.2d 253, 263. McNeill’s fourth proposition is overruled.
IX
Ineffective Assistance
{¶ 53} In his sixth proposition of law, McNeill claims ineffective assistance of counsel. We review these claims under the now-familiar standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 687-688, 690-691, 694, 104 S.Ct. 2052, 2064, 2066, 2068, 80 L.Ed.2d 674, 693, 695-696, 698. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373, 379-381.
{¶ 54} McNeill argues counsel were deficient in failing to object to the prosecutor’s voir dire references to imposing the death penalty in “this case” on “that man”; to guilt-phase instructions defining “reasonable doubt” and “recklessness”; to the reintroduction of all guilt-phase evidence in the penalty phase; and to the penalty-phase instruction to consider “the nature and circumstances of the aggravating circumstance.” However, these objections were
{¶ 55} McNeill also argues his counsel failed to file a pretrial motion to dismiss the death specification on the basis that the Ohio death penalty scheme is unconstitutional and the felony-murder specification duplicates the elements of aggravated murder under
{¶ 56} McNeill maintains his counsel failed to object to the excusal for cause of veniremen Snitzer, Bader, Reed, Candelario, and Turner. Applying the standard in State v. Williams (1997), 79 Ohio St.3d 1, 679 N.E.2d 646, the record shows a substantial basis for excusing all five.
{¶ 57} McNеill further contends counsel “wasted” peremptories on two veniremen whom he should have challenged for cause. The use of peremptory challenges is a matter of strategy. Debatable trial tactics do not constitute ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 37, 402 N.E.2d 1189, 1192. Additionally, our review of the record indicates no cause for challenging these veniremen.
{¶ 59} During her direct examination, state’s witness Terjen Russell testified to the facts of the shooting and to McNeill’s eventual hiding place. McNeill argues dеfense counsel’s failure to object to this testimony as hearsay was prejudicial. However, the prosecutor immediately established Terjen’s knowledge of these matters was based on hearsay, and cautioned her to “only tell us what you saw.” Moreover, the testimony in question was merely cumulative, and could be viewed as impeaching Terjen by displaying her lack of personal knowledge. Because the unreliability of the child witnesses was a key theme in defense closing arguments, we cannot hold defense counsel’s failure to object was a professionally unreasonable choice.
{¶ 60} McNeill also contends his counsel incompetently cross-examined Terjen, thereby bringing damaging information to the jury’s attention. When asked how she knew McNeill, Terjen replied McNеill had in the past thrown beer bottles at her. McNeill claims this demonstrates counsel’s failure to adequately investigate the case. Such an inference is speculative at best, as counsel actually used the testimony to impeach Terjen by suggesting she was personally biased against McNeill.
{¶ 61} According to McNeill, “[c]ounsel failed to object when the trial court instructed that appellant’s purpose to kill was presumed from the predicate facts of the offense.” McNeill further claims “[a] similar error infected the court’s instruction on ‘knowledge.’ ” The trial court gave no such instructions.
{¶ 62} McNeill also complains his counsel failed to object to the guilt-phase instructions on causation and foreseeability. The instructions, however, were not improper. See State v. Phillips (1995), 74 Ohio St.3d 72, 100, 656 N.E.2d 643, 668.
{¶ 64} McNeill maintains he was prejudiced by defense counsel’s failure to object to the state’s closing argument. However, an attorney may reasonably elect not to interrupt opposing counsel’s argument. See State v. Keene (1998), 81 Ohio St.3d 646, 668, 693 N.E.2d 246, 264.
{¶ 65} In the penalty phase, McNeill claims defense counsel were ineffective in requesting a mental examination under
{¶ 66} McNeill, however, has not persuasively shown prejudice. First,
{¶ 67} McNeill’s claim of prejudice based on “derogatory information” contained in the psychologist’s report is also groundless. His three examples of “derogatory information” are unimpressive. First, Dr. Sandra McPherson described McNeill as “angry”; second, she wrote that “[b]y the age of 14, Fredd[ie] was essentially out of control”; third, she mentioned McNeill had “apparently supported himself through his activity on the streets.” Each of these statements was consistent with evidence already bеfore the jury. McPherson’s report told the jury nothing derogatory that was not already in evidence. More important, the overall content
{¶ 68} We therefore see no prejudice to McNeill in counsel’s use of
{¶ 69} McNeill also claims defense counsel rendered ineffective assistance in ordering a presentence investigation (“PSI”) under
{¶ 70} McNeill argues the record is silent regarding counsel’s advice on the matter. However, the burden of showing ineffective assistancе is McNeill’s. The record reflects counsel’s representation to the court that despite his explanation to McNeill that a PSI was imprudent, McNeill desired the PSI; McNeill verbally agreed with this representation in open court, and presents no evidence to the contrary.
X
Appointed Counsel
{¶ 72} In his fifth proposition of law, McNeill claims the trial court erred in refusing to replace his court-appointed counsel because there was “ ‘a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant’s right to effeсtive assistance of counsel.’ ” State v. Coleman (1988), 37 Ohio St.3d 286, 292, 525 N.E.2d 792, 798-799, quoting People v. Robles (1970), 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 173, 466 P.2d 710, 717. There is no constitutional right to a “meaningful attorney-client relationship.” Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621. There is only a right to professionally competent, effective representation.
{¶ 73} McNeill submitted to the trial judge his motion to replace counsel after the jury was impaneled and immediately before opening statements were to begin. He claimed his attorneys communicated with him only once following their appointment, and refused to obtain information for him or to place two requested witnesses on the witness list.
{¶ 74} Defense counsel stated they met with McNeill between one and two dozen times, spoke with him on the phone, and gave him copies of all discovery. Also, counsel in fact listed one of the two witnesses McNeill wanted, and stated that MсNeill withdrew his request for the other.
{¶ 75} The trial court found that, given the timing, McNeill’s motion was made for the purpose of delay. Furthermore, notwithstanding several previous opportunities, McNeill did not bring the alleged problem to the court’s attention until immediately before opening statements.
{¶ 76} It was within the trial court’s discretion to decline to replace appointed counsel. See State v. Downs (1977), 51 Ohio St.2d 47, 61-62, 5 O.O.3d 30, 38, 364 N.E.2d 1140, 1149, sentence vacated on other grounds, Downs v. Ohio (1978), 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153. McNeill’s factual claims
XI
Other Issues
{¶ 77} In his eleventh proposition, McNeill argues factual errors in the trial court’s sentencing opinion require reversal of his death sentence. We disagree.
{¶ 78} The trial court’s opinion stated that after MсNeill left Fulton’s car, he “returned and again demanded the money. The victim refused and the Defendant then placed the firearm to the victim’s head and fired * * *.” We agree with McNeill that this was inaccurate: there was no evidence that McNeill “again demanded the money” after he returned to Fulton’s car. However, “[w]hile these statements are not supported by the record, this court’s independent review can correct that problem by not relying on them.” State v. Davis, supra, 76 Ohio St.3d 107, 121, 666 N.E.2d 1099, 1111. McNeill’s eleventh proposition is therefore overruled.
{¶ 79} McNeill’s twelfth proposition claims that language in
{¶ 80} We overrule this proposition based on Tuilaepa v. California (1994), 512 U.S. 967, 973-980, 114 S.Ct. 2630, 2635-2639, 129 L.Ed.2d 750, 760-765, and
XII
Independent Sentence Review
{¶ 81} In his tenth proposition of law, McNeill contends the aggravating circumstance does not outweigh the mitigating factors, and the death sentence is disproportionate to sentences imposed in similar cases. We must resolve these issues pursuant to our stаtutorily mandated independent review.
{¶ 82} Of the mitigating factors listed in
{¶ 83} McNeill was nineteen when he murdered Fulton. This establishes youth as a mitigating factor under
{¶ 84} While it did not rob him of his capacity for choice, there was some evidence that ADHD would impair McNeill’s ability to control his impulses. On cross-examination, however, McPherson’s testimony and the reliability of her diagnosis were called into question.
{¶ 85} The influence of McNeill’s fraternal relatives and the lack of a father figure, although relevant, are offset by the positive influence of his mother and Darnel Haney, McNeill’s “Big Brother.” McNeill had a choice between good and bad influences; he chosе the bad.
{¶ 86} Finally, McNeill claims Fulton contributed to his own death by participating in an illegal drug transaction. “[T]he unlawful taking of a human life cannot be deemed less serious simply because the victim was involved in unlawful activity.” State v. Williams (1997), 79 Ohio St.3d 1, 18, 679 N.E.2d 646, 661. Consequently, we believe that “no significant mitigating weight need be assigned to this factor.” State v. Green (1993), 66 Ohio St.3d 141, 153, 609 N.E.2d 1253, 1263.
{¶ 87} Against the mitigating factors McNeill cites we must weigh the aggravating circumstance that the murder was committed while McNeill attempted to commit aggravated robbery.
{¶ 88} Accordingly, we find that the weight of the aggravating circumstance outweighs beyond a reasonable doubt the modest mitigating factors adduced.
{¶ 89} Comparing McNeill’s sentence to those imposed in similar capital cases, we conclude that the death penalty is appropriate and proportionate. We have consistently approved death sentences in robbery-murder cases. See, e.g., State v. Allen (1995), 73 Ohio St.3d 626, 644, 653 N.E.2d 675, 691; State v. Hill (1995), 73 Ohio St.3d 433, 448, 653 N.E.2d 271, 284; State v. Mills (1992), 62 Ohio St.3d 357, 377-378, 582 N.E.2d 972, 989.
{¶ 90} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
{¶ 91} “PROPOSITION OF LAW NO. I
“Aggravated murder is not committed ‘while’ the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit aggravated robbery, under
{¶ 92} “PROPOSITION OF LAW NO. II
“A conviction of the specification of having committed aggravated murder while committing or attempting aggravated robbery,
{¶ 93} “PROPOSITION OF LAW NO. III
“It is prejudicial error to admit evidence of other criminal acts previously committed by the defendant to show the defendant acted in conformity therewith.”
{¶ 94} “PROPOSITION OF LAW NO. IV
“Pronounced, persistent state misconduct which so infects the trial as to destroy its fundamental fairness amounts to a denial of due process and calls for a reversal.”
{¶ 95} “PROPOSITION OF LAW NO. V
“A motion to replace appointed counsel must be granted when there is a break down in the attorney-client relationship of such magnitude as to jeopardize thе defendant’s right to the effective assistance of counsel.”
{¶ 96} “PROPOSITION OF LAW NO. VI
“The defendant’s right to the effective assistance of counsel is denied when the defendant is prejudiced by counsel’s deficient performance.”
{¶ 97} “PROPOSITION OF LAW NO. VII
“It is an abuse of discretion and a violation of the United States Constitution to allow children under the age of ten to testify when they cannot receive accurate
{¶ 98} “PROPOSITION OF LAW NO. VIII
“The presumption of innocence is destroyed when prospective jurors are asked whether they could impose the death penalty upon this defendant.”
{¶ 99} “PROPOSITION OF LAW NO. IX
“A prospective juror in a capital case is subject to a challenge for cause only if he or she is unequivocally оpposed to capital punishment and if the juror refuses to consider capital punishment under any circumstances.”
{¶ 100} “PROPOSITION OF LAW NO. X
“A death sentence is disproportionate [sic] severe when given for a crime whose facts are far less heinous than those in similar cases where the death penalty was imposed.”
{¶ 101} “PROPOSITION OF LAW NO. XI
“A capital defendant has a protected liberty interest in a reliable review of his death sentence by the trial court.”
{¶ 102} “PROPOSITION OF LAW NO. XII
“
{¶ 103} “PROPOSITION OF LAW NO. XIII
“
{¶ 104} “PROPOSITION OF LAW NO. XIV
“Ohio’s capital sentencing law is unconstitutional on its face and as applied to appellant.”
{¶ 105} “PROPOSITION OF LAW NO. XV
{¶ 106} “PROPOSITION OF LAW NO. XVI
“Substantially [sic] underrepresentation of African-Americans on a jury establishes a prima facie case of purposeful exclusion of African-Americans from the panel.”
{¶ 107} “PROPOSITION OF LAW NO. XVII
“Failure to charge the jury properly on a lesser included offense in a capital murder sentencing phase requires reversal of the death penalty.”