Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
T HE TATE OF , A PPELLEE ,
v
. O’N EAL , A PPELLANT .
[Cite as
State v. O’Neal
,
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 98-147—Submitted May 4, 1999—Decided January 5, 2000.) A PPEAL from the Court of Appeals for Hamilton County, No. C-960392. __________________
On November 14, 1992, appellant, James Derrick O’Neal, and Carol
O’Neal were married. Initially, they lived together in Corryville, Ohio, with Carol’s four children. In September 1993, Carol, individually, entered into a lease agreement for a home at 4938 Plainville Road in Madisonville. Subsequently, Carol, appellant, and Carol’s four minor children moved into the home. Thereafter, two of appellant’s minor children also moved into the home. By December 1993, the marital relationship between appellant and
Carol had deteriorated due, in part, to discord among the children and problems between appellant and Carol’s oldest son, Ricardo. During this time, Carol worked at Ampco Parking during the day and at a convenience store at night. Patricia Carr, a friend of Carol’s and a coworker at Ampco, stated that Carol acted tired and stressed and that she wanted to end her marriage with appellant. On December 7, 1993, an altercation occurred between Carol and
appellant. As a result, Officer Michael Mercer from the Cincinnati Police Department responded to a call for assistance at the Plainville Road residence. Mercer found Carol to be “very upset” and “very fearful” of appellant. Carol told Mercer that she had argued with appellant over food stamps and that she had asked him to leave. Carol also informed Mercer that appellant had struck her in the face numerous times, choked her, shoved her to the ground, and kicked her. Mercer noticed that Carol’s face and neck were bruised. Carol also advised Mercer that appellant had recently moved out of the house. That same day, December 7, 1993, Carol filed, in the Hamilton
County Municipal Court, a domestic violence complaint and a temporary protection order against appellant. [1] A warrant was then issued for appellant’s arrest. Carr testified that she saw Carol at Ampco Parking on December 7 and noticed that her jaw was swollen and that Carol was “very upset.” Carol told Carr that when appellant tried to take food stamps out of her purse, they argued and appellant hit her in the jaw. According to Carr, Carol planned to change the locks on the house and was “scared [appellant] would kill her.” Carr also stated that every day thereafter Carol was nervous, shaky, and drained, and explained that whenever the telephone rang at work, “[Carol] would be shaking, scared, thinking it was going to be [appellant] on the phone.” On December 11, 1993, appellant telephoned Carol at her place of
employment. Jamie Wright, who worked with Carol and also knew appellant, answered the telephone and advised Carol that she suspected the caller was appellant. The telephone was then placed in speaker mode so that both Carol and Wright could hear the conversation. Wright testified that after Carol said hello, appellant stated, “Bitch, it ain’t over yet.” Appellant then started laughing and hung up. According to Wright, Carol stumbled backward, appeared to nearly faint, and was shaking and “nervous and jittery” the rest of the work day. Later that evening, appellant broke the glass portion of the front door
and entered the residence at 4938 Plainville Road. At the time, Carol was coming down the stairs. When the glass broke, Carol ran upstairs screaming, and she and her three youngest children retreated into a bedroom. Carol directed the children into a closet and she stood pushing on the bedroom door trying to keep appellant 1. The temporary protection order was issued on December 12, 1993, the day after Carol was killed. from entering. Two of Carol’s children, who were looking out of the closet, testified that appellant fired a shot at the bedroom door and that Carol fell to the floor behind the bedroom door. Appellant then entered the bedroom and, while standing over Carol, fired two or three shots at her. One of the bullets struck Carol in the upper left chest. Appellant left the bedroom and confronted Carol’s oldest child,
Ricardo, who was then fourteen years old. According to Ricardo, appellant pointed the gun at his neck and pulled the trigger at least twice. When the gun did not fire, appellant hit him in the face with the gun and left the house. Timothy Schopmeyer, who was delivering a pizza at a neighbor’s
home on the day of the murder, testified that he saw appellant approach the front door at 4938 Plainville Road. Schopmeyer noticed that appellant was wearing a thick jacket with the collar pulled up and a hat that was pulled down over a large portion of his head. Moments later, Schopmeyer heard breaking glass and realized that appellant had entered the neighboring house. Schopmeyer testified that within seconds after appellant had entered the home, he (Schopmeyer) heard a woman screaming “No, no, no.” The cries of “no” were then followed by several gunshots. Schopmeyer saw appellant leave the house and walk quickly up the street. Schopmeyer stated that approximately thirty seconds passed from the time he heard the breaking glass until appellant left the house. After appellant left the home, Schopmeyer approached the house and he heard children shouting that their mother had been shot. Schopmeyer entered the house, went upstairs, and saw Carol lying on a bed. When he asked her who had done this, she answered, faintly, “My husband.” Schopmeyer then ran to get help. Police officers responding to the 911 calls noticed that the glass to
the front door had been shattered. The police went upstairs and found Carol lying on a bed suffering from a chest wound. They also noticed that Ricardo had a severe “gash” on his face. Later that day, during surgery, Carol died. The forensic pathologist
concluded that a bullet had lacerated one of Carol’s lungs and a major vein to her heart, and that she died as a result of blood loss. Later that night, on December 11, 1993, a police canine unit
discovered appellant hiding inside a house that he had broken into near the Plainville Road residence. Appellant surrendered and, in the process, he slid a .25 caliber Raven semiautomatic pistol across the floor to the police. Officer Kevin York took possession of the pistol and later testified that the gun appeared to be jammed. After being advised of his Miranda rights, appellant told Detective
Charles Beaver that he and Carol had argued about the children on December 7 and that he had hit her. During the questioning, appellant acknowledged that he was aware that Carol had filed a complaint against him following the December 7 altercation. Appellant also indicated that, on December 11, he had not been living at the Plainville Road home. Appellant stated that prior to that date he had “moved out” when Carol demanded that he and his sons leave the home and that since that time he had been living on the streets. Appellant also stated that he did not know where his sons were living. Appellant told police that he had entered the residence by kicking the front door glass and that he had chased Carol up the stairs. Appellant further confessed that he forced his way into the bedroom and as Carol lay “huddled” on the floor behind the bedroom door “crying and screaming” he shot her “two or three times.” Appellant also stated that he “wanted to teach her a lesson,” and that he did not care if she died. During appellant’s confession, Beaver did not tell appellant that
Carol had died and appellant never asked about her condition. At the end of the police interview, Beaver told appellant that Carol had died during surgery. Beaver testified that appellant “showed exactly no emotion one way or the other as to whether he cared.” When asked whether he would do anything differently considering that Carol died as a result of the shooting, appellant stated, “I have no regrets what I did. It hurt what she did to my kids.” William Schrand, a forensic firearms expert, testified that the bullet
found in Carol’s body came from the Raven semiautomatic pistol recovered from appellant. This same pistol was linked to a spent bullet and three cartridge shells that police recovered from the bedroom. In December 1993, appellant was indicted by the Hamilton County
Grand Jury for the aggravated murder of Carol. Count 1 of the indictment charged appellant with purposely causing the death of Carol during the commission of an aggravated burglary (R.C. 2903.01[A]). Count 1 also carried two death penalty specifications: one alleged a course of conduct involving the purposeful attempt to kill two or more persons (R.C. 2929.04[A][5]); and a second alleged murder during an aggravated burglary (R.C. 2929.04[A][7]). Count 2 of the indictment charged appellant with purposely causing the death of Carol with prior calculation and design (R.C. 2903.01[B]). Count 2 also carried the same two death penalty specifications as count 1. Appellant was also indicted on one count of attempted murder of Ricardo (count 3) and one count of aggravated burglary (count 4). Each count in the indictment also carried a firearm specification. Appellant filed a pretrial motion pursuant to Crim.R. 12(B) to
dismiss all charges and specifications relating to aggravated burglary. In his
motion, appellant claimed that he could not be guilty of an aggravated burglary
offense because trespass is an essential element of the offense and, in the absence
of a court-imposed protection order, one spouse cannot technically trespass upon
the residence of the other spouse. The trial court agreed and dismissed count 1 of
the indictment (purposely causing the death of Carol during the commission of an
aggravated burglary) and its specifications. The court also dismissed the
aggravated burglary death penalty specification with respect to count 2, and the
court further dismissed count 4. Thus, the course-of-conduct death penalty
specification regarding count 2 remained. Thereafter, the state, pursuant to R.C.
2945.67,
[2]
appealed the holding of the trial court to the court of appeals.
Upon appeal, the court of appeals reversed the judgment of the trial
court and remanded the cause, holding that “the issue of whether the state can prove
that the defendant trespassed on the premises is to be determined at trial, not by a
motion to dismiss. If, at the end of the state’s case, the evidence is insufficient to
prove that the defendant committed a trespass, then the court must dismiss the
aggravated burglary charges and specifications pursuant to a Crim.R. 29 motion for
acquittal.”
State v. O’Neal
(1995),
be sentenced to death on both aggravated murder counts. The trial court conducted an independent review of the evidence pursuant to R.C. 2929.03(F) and accepted 2. R.C. 2945.67(A) provides that “[a] prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which * * * grants a motion to dismiss all or any part of an indictment.”
the jury’s recommendation and imposed the sentence of death. For the aggravated burglary charge (count 4) and firearm specifications, appellant was sentenced in accordance with the law. On appeal, the court of appeals affirmed. The cause is now before this court upon an appeal as of right.
__________________
Michael K. Allen, Hamilton County Prosecuting Attorney, and William E. Breyer, Assistant Prosecuting Attorney, for appellee.
Elizabeth E. Agar and Roxann H. Dieffenbach, for appellant.
__________________
D OUGLAS , J. Appellant presents seventeen propositions of law for our consideration. (See Appendix, infra .) We have considered each of appellant’s propositions of law and have reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we uphold appellant’s convictions and sentences, including the sentence of death.
I We have held time and again that this court is not required to address,
in detail, each and every contention raised by the parties in a death penalty appeal. We continue to adhere to that position today. We have carefully considered all of the propositions of law and allegations of error and have thoroughly reviewed the record in its entirety. Many of the issues raised by appellant have been addressed and rejected by this court under analogous circumstances in a number of our prior cases. Therefore, these issues require little, if any, discussion. Upon a careful review of the record and the governing law, we fail to detect any errors requiring reversal of appellant’s convictions and death sentence. We have found nothing in the record or in the arguments advanced by appellant that would, in any way, undermine our confidence in the outcome of appellant’s trial. Accordingly, we address and discuss, in detail, only those issues that merit detailed analysis.
II
Propositions of Law Nos. I, II and XII In his first proposition, appellant challenges the conclusions reached
by the court of appeals in
State v. O’Neal
(1995),
717 N.E.2d 322, paragraph two of the syllabus, we held that R.C. 3103.04 is
inapplicable in criminal cases. In
Lilly
, this court reviewed the historical
implications of R.C. 3103.04 and concluded that the statute “was intended to
address property ownership rights of married persons, matters of a civil nature.
Privileges of a husband and wife with respect to the property of the other were not
meant to be enforced criminally and do not affect criminal liabilities.”
Id
. at 102,
and that it is an “unnecessary act of judicial legislation” redefining criminal trespass. Again, we disagree. In the case at bar, the jury convicted appellant of, among other
charges, aggravated murder with aggravated burglary death penalty specifications, 3. R.C. 3103.04 provides:
“Neither husband nor wife has any interest in the property of the other, except as mentioned in section 3103.03 of the Revised Code, the right to dower, and the right to remain in the mansion house after the death of either. Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.” and the separate charge of aggravated burglary. R.C. 2911.11 sets forth the crime of aggravated burglary:
“(A) No person , by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with the purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:
“(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
“(2) The offender has a deadly weapon or dangerous ordnance on or about the offender’s person or under the offender’s control.” (Emphasis added.) As can be gleaned, trespass is an essential element of aggravated burglary. A criminal trespass occurs when a person “without privilege to do so,” “[k]nowingly enter[s] or remain[s] on the land or premises of another.” R.C. 2911.21(A)(1). “Land or premises” includes “any land, building, structure, or place belonging to, controlled by, or in custody of another.” R.C. 2911.21(E). R.C. 2911.21(A)(1), when read in conjunction with 2911.21(E), establishes that any person can indeed commit a trespass against property that belongs to, is controlled by, or is in the custody of, someone else . Therefore, a spouse can be convicted of trespass and aggravated burglary in the dwelling of the other spouse who owns, has custody of, or control over the property where the crime has occurred. Lilly , paragraph one of the syllabus (“A spouse may be criminally liable for trespass and/or burglary in the dwelling of the other spouse who is exercising custody or control over that dwelling”). In his second and twelfth propositions, appellant contends that there
was insufficient evidence to find that he trespassed on the property in question.
Specifically, appellant claims that the record does not support a finding that the
Plainville Road property was in the custody or control of Carol. However,
construing the evidence in a light most favorable to the prosecution, which we are
required to do, see
Jackson v. Virginia
(1979),
that, at the time appellant broke into the residence and murdered Carol, Carol was in sole custody of and control over the home. Carol was the lessee under the lease agreement for the home. Appellant’s name was not on the lease. Further, on December 7, 1993, following an altercation with Carol, appellant moved out and began living somewhere else. Carol had also filed a motion for a temporary protection order against appellant. Moreover, appellant admitted to the police that, prior to the day of the murder, he had moved out and no longer lived in the home. On December 11, 1993, appellant shattered the glass in the front door, entered the residence, and killed Carol. Clearly, the evidence was sufficient for the jury to conclude that, at the time of the murder, appellant did not live at 4938 Plainville Road and that the residence was in Carol’s sole custody and/or control. Accordingly, appellant’s second and twelfth propositions of law are not well taken.
III
Proposition of Law No. III In his third proposition, appellant contends that the prosecution
peremptorily excused jurors based on their race. In
Batson v. Kentucky
(1986), 476
U.S. 79, 89,
prospective jurors Anderson, Breckenridge, and Cowins were racially motivated.
However, appellant has failed to show any facts or relevant circumstances that raise
an inference that the prosecutor used the challenges for racial reasons.
State v.
Hernandez,
record, the reasons for its challenges. The prosecutor noted that Anderson was dismissed because she was “the lowest rated juror as far as applying the death penalty.” The state excused Breckenridge because of his “mixed feelings regarding the death penalty” and because he was single and lived at home with his mother and thereby lacked “a stake in the community.” The state challenged Cowins because she was a social worker, which
the state felt was not a “pro-conviction” occupation, and because she agreed with the verdict finding O.J. Simpson not guilty despite her admission that she had not followed the case. Cowins also stated that she would not openly deliberate with her fellow jurors. These explanations are clearly race-neutral and are supported by the
record. “ ‘Unless a discriminatory intent is inherent in the prosecutor’s explanation,
the reason offered will be deemed race neutral.’ ”
Purkett v. Elem
(1995), 514 U.S.
765, 768,
IV
Proposition of Law No. IV In his fourth proposition, appellant argues that the admission of
multiple hearsay statements attributed to Carol denied him due process of law and the right to confront his accuser. In support, appellant points to testimony of Officer Mercer, Carol’s friend Patricia Carr, and Carol’s son Ricardo regarding statements that Carol made concerning the December 7 altercation between Carol and appellant, her fears of appellant, and her plans to end the marriage. In allowing the testimony into evidence, the trial court relied on the “excited utterance” exception to the hearsay rule, Evid.R. 803(2), [4] and the “then existing mental, emotional, or physical condition” exception set forth in Evid.R. 803(3). [5] At trial, Officer Mercer testified that after he responded to a call for assistance on December 7, Carol told him that she had just had an altercation with appellant during which he struck her in the face numerous times, choked her, shoved her to the ground, and kicked her because she refused to give him food stamps. Mercer also testified that Carol told him that appellant had moved out and no longer lived at the residence. We conclude that Carol’s statements to Mercer were relevant to the
issues tried and admissible under Evid.R. 803(2) as an excited utterance. All of the
above statements related to a startling event or condition, the assault by appellant,
which had reportedly just occurred. Mercer testified that Carol was “very excited,”
“very upset,” crying, and “very fearful.” In this regard, Carol was still “under the
stress of excitement caused by the event or condition.” Evid.R. 803(2). See
State
v. Huertas
(1990),
Carol made to her, including details about the December 7 altercation and Carol’s relationship with appellant. Carr testified that Carol was “really stressed” in December and wanted to get out of the marriage. Carr testified that after the 4. The “excited utterance” exception, Evid.R. 803(2), excludes from the hearsay rule “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
5. The “then existing mental, emotional, or physical condition” exception to the hearsay rule is found at Evid.R. 803(3). It provides that “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” is not excluded by the hearsay rule.
December 7 altercation, whenever the phone rang, Carol was “shaking, scared,” thinking it was going to be appellant on the phone. Carr also testified that appellant no longer stayed at the marital home, and that Carol planned to get the locks changed. We agree with appellant that the trial court erred by admitting Carr’s
recitation of Carol’s conversations as an excited utterance. The trial court also erred
by allowing Carol’s son Ricardo to testify about his mother’s description of the
December 7 altercation to him. For an excited utterance to be admissible, “[t]he
central requirements are that the statement must be made while the declarant is still
under the stress of the event and the statement may
not
be a result of reflective
thought.” (Emphasis added.)
State v. Taylor
(1993),
appellant were relevant to prove her intent to end the marriage. These statements
were properly admitted as evidence under Evid.R. 803(3), which permits hearsay
evidence of a declarant’s “then existing state of mind, emotion, sensation * * *
(such as intent, plan, motive, design, mental feeling [or] pain).” To be sure,
“testimony of state-of-mind witnesses, that the victim was fearful and apprehensive
[is] not inadmissible hearsay and [is] properly admitted.”
State v. Apanovitch
(1987),
V
Proposition of Law No. V In his fifth proposition, appellant argues that the trial court erred in
rejecting his request for an instruction on murder as a lesser included offense to the
aggravated murder charged in counts 1 and 2. Murder, which does not require proof
of prior calculation and design, R.C. 2903.02, is a lesser included offense of
aggravated murder, R.C. 2903.01(A).
State v. Goodwin
(1999),
murder as a lesser included offense to count 2. The state presented strong evidence
of prior calculation and design, and a jury could not reasonably find appellant guilty
of murder and not guilty of aggravated murder. Appellant attacked Carol four days
before the murder. On the day of the murder, he made a threatening telephone call
to Carol at her place of work, then several hours later broke into her home armed
with a gun. He was wearing a jacket with the collar pulled up and a cap over a large
portion of his head in an apparent attempt to conceal his identity. He chased Carol
up the stairs and while standing over her, shot and killed her. The entire incident,
breaking into the home, killing Carol, and leaving the home took place in
approximately thirty seconds. These facts indicate a calculated plan of attack
swiftly carried into execution. Cf.
State v. Goodwin
(1999),
by refusing to instruct the jury that murder is a lesser included offense to the felony murder charge. The state also presented strong evidence that Carol was in custody and/or control of the home. Prior to killing Carol, appellant was not living at the residence. He broke into the home and mercilessly killed her. The findings of the jury that appellant committed an aggravated burglary were clearly in accord with the evidence produced by the state. Therefore, appellant’s fifth proposition of law is not well taken.
VI
Proposition of Law No. VI In his sixth proposition, appellant contends that his postarrest
statement to police should not have been admitted at trial because it was obtained
through deception by police officers. Specifically, appellant asserts that the failure
of police officers to inform him about Carol’s death prevented a knowing and
intelligent waiver of his Fifth Amendment rights. We disagree. “A suspect’s
awareness of all the possible subjects of questioning in advance of interrogation is
not relevant to determining whether the suspect voluntarily, knowingly, and
intelligently waived his Fifth Amendment privilege.”
Colorado v. Spring
(1987),
and appellant never asked about her condition while being questioned. The United
States Supreme Court “has never held that mere silence by law enforcement
officials as to the subject matter of an interrogation is ‘trickery’ sufficient to
invalidate a suspect’s waiver of
Miranda
rights.”
Id
. at 576,
VII
Proposition of Law No. VII In his seventh proposition, appellant asserts that the prosecutor’s
closing argument in the penalty phase of the trial appealed to the jury’s emotions
and improperly referred to the nature and circumstances of the offense as
aggravating circumstances. Granted, “[i]t is improper for prosecutors in the penalty
phase of a capital trial to make any comment before a jury that the nature and
circumstances of the offense are ‘aggravating circumstances.’ ”
State v.
Wogenstahl
(1996), 75 Ohio St.3d 344, 662 N.E.2d 311, paragraph two of the
syllabus. However, appellant failed to object to these remarks and thus waived all
but plain error
. State v. Slagle
(1992),
mitigation “outweigh[s] the cruel manner in which he killed? How does the cruel manner in which he killed, the aggravating circumstances, weigh against the mitigation which you heard[?]” The prosecutor also referred to the “cruel manner in which he killed her” as giving additional weight to the aggravating circumstances. However, we find that the prosecutor’s comments did not amount to
plain error. During the penalty phase, both the prosecutor and defense counsel
correctly identified the aggravating circumstance. Moreover, the trial court
correctly instructed the jury on the weighing process and the relevant aggravating
circumstance. In this regard, proper instructions can cure misstatements of law by
the parties. See
State v. Loza
(1994),
emotions felt by Carol’s children witnessing her murder, and noted that the feelings
“were brought from that room into this room. I felt them and so did you.” However,
in making these statements, it is obvious that the prosecutor was not asking the jury
to render verdicts based upon emotion. In any event, “criminal trials cannot be
squeezed dry of all feeling.”
State v. Keenan
(1993),
The prosecutor’s sentencing argument did not contribute unfairly to the death
verdict, and it did not create outcome-determinative plain error. Cf.
State v.
Landrum
(1990),
VIII
Proposition of Law No. VIII
{¶ 60}
In his eighth proposition, appellant contends that the trial judge erred
in allowing the jury to recommend a sentence on each aggravated murder count
because appellant killed only one person. Because appellant did not object to the
penalty phase jury instructions at trial, he waived all but plain error.
State v.
Underwood
(1983),
involving a single victim, represents a “procedural” error that is “harmless beyond
a reasonable doubt.”
State v. Moore
,
IX
Proposition of Law No. IX The imposition of the death penalty for aggravated murder is
precluded unless one of the criteria contained in R.C. 2929.04 is specified in the 6. R.C. 2941.25(A) provides:
“Where the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.” indictment or count in the indictment and established beyond a reasonable doubt.
R.C. 2929.04(A). At issue in this proposition is R.C. 2929.04(A)(7), which
provides that the offense must have been “committed while the offender was
committing [or] attempting to commit * * * aggravated burglary, and either the
offender was the principal offender in the commission of the aggravated murder or,
if not the principal offender, committed the aggravated murder with prior
calculation and design.” We have held that the “principal offender” and the “prior
calculation and design” language in R.C. 2929.04(A)(7) are not intended to be
cumulative aggravating circumstances but are mutually exclusive alternatives that
are not to be charged and proven together in the same cause.
State v. Penix
(1987),
instructions to the jury violated our holding in
Penix
. We disagree. Initially, we
note that appellant failed to object to this instruction at trial and thus waived all but
plain error.
Underwood
. Furthermore, the trial court’s instruction to the jury was
proper in all respects. At trial, the court instructed the jury that “[t]he single
aggravating circumstance which defendant has been convicted of committing is that
the offense was committed while the offender was committing, attempting to
commit or fleeing immediately after committing or attempting to commit
aggravated burglary and either the offender was the principal offender in the
commission of the aggravated murder, or if not the principal offender, committed
the aggravated murder with prior calculation and design.”
The trial court’s instruction to the jury followed the language of R.C.
2929.04(A)(7). We have held that when the “prior calculation and design” and the
“principal offender” language of R.C. 2929.04(A)(7) are charged disjunctively to
the jury in a single specification, as was done in this case, no error is committed.
State v. Cook
(1992),
X
Proposition of Law No. X In his tenth proposition, appellant asserts that the “systematic
exclusion of prospective jurors opposed to the death penalty violated [appellant’s]
right to a fair and impartial jury which reflects the community from which it is
drawn.” We summarily reject this argument on the authority of
Lockhart v. McCree
(1986),
XI
Proposition of Law No. XI In his eleventh proposition, appellant contends that the trial court’s
instruction to the jury during the penalty phase that the jury was to arrive at its
findings without sympathy was improper because it effectively restricted the jurors
from considering mercy as a mitigating factor. However, the instruction to exclude
sympathy “is intended to insure that the sentencing decision is based upon * * *
guidelines fixed by statute.”
State v. Jenkins,
paragraph three of the syllabus. See,
also,
State v. Taylor
(1997), 78 Ohio St.3d 15, 30, 676 N.E.2d 82, 96;
State v.
Dunlap
(1995), 73 Ohio St.3d 308, 315, 652 N.E.2d 988, 995-996. Moreover,
mercy is not a mitigating factor.
State v. Lorraine
(1993),
persuasive.
XII
Proposition of Law No. XIII In his thirteenth proposition, appellant contends that Ohio’s capital
sentencing scheme is unconstitutional because the same operative fact used to
elevate murder to aggravated murder (aggravated burglary in this case) can then be
used as a death penalty specification. However, appellant’s claim lacks merit. We
have previously considered and rejected this argument.
State v. Henderson
(1988),
39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of the syllabus. See, also,
Lowenfield v. Phelps
(1988),
XIII
Proposition of Law No. XIV In his fourteenth proposition, appellant challenges Ohio’s death
penalty statute. However, appellant does not present any arguments that would
cause us to revise our position regarding the constitutionality of the statutory
scheme. Appellant’s contentions are rejected.
State v. Poindexter
(1988), 36 Ohio
St.3d 1,
XIV
Proposition of Law No. XV In his fifteenth proposition, appellant challenges the present
structure of Ohio’s proportionality review in capital cases. Specifically, appellant
argues that his sentence should be compared to cases in which the death penalty
was not imposed. We reject this argument on the authority of
Pulley v. Harris
(1984),
XV
Proposition of Law No. XVI In his sixteenth proposition, appellant argues that imposing the death
penalty in this case is inappropriate and disproportionate when compared to similar cases. This argument will be considered infra during the independent review of the sentence.
XVI
Proposition of Law No. XVII
{¶ 75}
In his seventeenth proposition, appellant asserts that the combined
effect of errors in evidentiary rulings and on pretrial motions denied him a fair and
impartial trial. However, appellant’s argument lacks merit. “ ‘[T]here can be no
such thing as an error-free, perfect trial, and * * * the Constitution does not
guarantee such a trial.’ ”
State v. Hill
,
appellant received a fair trial, few errors were found, and any error did not prejudice
his substantial rights.
State v. Hill
,
well taken.
XVII Having considered appellant’s propositions of law, we must now
independently review the death sentence for appropriateness and proportionality
(also raised in appellant’s sixteenth proposition of law). R.C. 2929.05(A). For
purposes of independent review, the two counts of aggravated murder of a single
victim must be merged.
State v. Lawson
,
David Chiappone, a clinical psychologist; Dr. Robert Tureen, a clinical psychologist with a specialty in neuropsychology; Dorothy O’Neal, appellant’s mother; Steve Dumas, appellant’s long-time friend; Cortez O’Neal, appellant’s son; and Jamie Powers, appellant’s former workplace supervisor. Also, appellant read a statement to the jury. Dr. Chiappone conducted lengthy interviews with appellant and
administered several psychological tests. He also obtained information from appellant’s family members and friends. The history he received indicated that appellant had two older and two younger sisters, that he had been the family favorite, that his mother had “doted” over him, and that his parents separated when he was nine years old. Chiappone noted that appellant completed twelve years of education
but was passed academically only because he was a very good basketball player. Appellant had been suspended from school several times for fighting. From 1972 to 1975, appellant served in the United States Marine Corps but was discharged for being absent without leave. From 1976 through approximately 1989, appellant supported himself by selling drugs. During this time, appellant was convicted of selling marijuana. He also served approximately one year in prison for selling cocaine. After his release from prison, appellant apparently stopped selling
drugs and held a number of jobs. Appellant and Carol were married in 1992. Appellant has nine children from different relationships. Appellant attributed his marital problems with Carol to their inability to raise their children together. According to Chiappone, appellant strongly resented Carol because he felt that she had thrown his children out on the street. Chiappone concluded that appellant had a mixed personality
disorder, with narcissistic self-centeredness and antisocial elements, and that he was borderline mentally retarded. Chiappone noted, however, that appellant was not mentally ill and that he understood the difference between right and wrong. Appellant abused alcohol and used cocaine sporadically, and he told Chiappone that he had ingested cocaine on the day that he killed Carol. Chiappone stated that he believed that appellant could adapt to a life in prison. Chiappone believed that appellant may have suffered brain damage
in his childhood and requested that Dr. Tureen, a clinical psychologist with a specialty in clinical neuropsychology, evaluate appellant. Tureen described appellant as suffering from both low intelligence and “minimal cerebral dysfunction,” or a basic problem in the “hard wiring” of his brain. His poor academic performance showed evidence of “organicity” or brain damage. Because of this “mild to moderate degree of impairment,” his ability to learn is impaired and his thinking tends to be very “concrete.” Tureen further stated that he believed that appellant would have more difficulty thinking clearly under the stress of a failed relationship than would the average person. Tureen concluded that appellant killed Carol because appellant felt that it was the only way he could express his anger when Carol made appellant and his sons leave her home. Other defense witnesses supported these descriptions of appellant’s
history and background. Appellant’s mother, Dorothy O’Neal, stated that appellant was a normal boy when growing up and that he loved basketball. Appellant’s father died when appellant was young and this event significantly affected him because appellant and his father had been very close. Dumas stated that he was a long-time friend of appellant, that
appellant was like an older brother to him, and that appellant was not a violent person. Dumas described appellant as a peacemaker. Dumas noted that when appellant got out of prison in 1989, he stopped selling drugs. According to Dumas, appellant did not want his children to grow up in the streets, stressed education, and urged his children to stay in school. Cortez, one of appellant’s sons, testified that he loves his father. He
also stated that he liked Carol and that she treated him well and was a like mother to him. Cortez stated that on December 7, 1993, he saw his father beat Carol. Powers, one of appellant’s former employers, stated that appellant had a positive attitude and did a good job even while working in an undesirable, low-paying job. Powers also stated that he had seen appellant act as a peacemaker on different occasions when fights would break out in the kitchen. Powers described appellant as having a really strong work ethic even though he had been fired several times for absenteeism and for being late to work. Powers rehired appellant each time after he had been fired and testified that he would rehire him now if he could. In an unsworn statement that he read to the jury, appellant stated that
he did not plan or mean to kill Carol, but that his feelings “got the best” of him. He stated that he was sorry for what he had done and for the pain he had caused Carol’s family and his own family. Upon review of the evidence admitted in mitigation, we find that the
evidence concerning appellant’s history, character, and background is entitled to
very little weight in mitigation. Specifically, we find that appellant’s attempt to
turn his life around and become a responsible citizen after years of selling drugs
and his attempt to be a father to two of his children by taking custody of them and
encouraging them to get an education is entitled to some weight in mitigation. Also,
his attempt at legitimate, steady employment after his prison term is entitled to
some, but very minimal, mitigating weight. See
State v. Mitts
(1998), 81 Ohio St.3d
223, 236,
{¶ 92} During the penalty phase, appellant presented no evidence regarding the mitigating factors set forth in R.C. 2929.04(B)(1) through (B)(6), and our review of the record reveals that these factors are inapplicable here. However, there are some “other factors” in the record that appear relevant and are entitled to weight in mitigation. R.C. 2929.04(B)(7). Testimony from both psychologists established that appellant has
organic brain problems and although appellant is not mentally retarded, he
functions in the lower two to three percent of the general population. His judgment,
thinking process, and ability to learn from mistakes are all impaired, and he suffers
from a mixed personality disorder. These conditions are entitled to some weight in
mitigation. See,
e.g.
,
State v. Bies
(1996),
perceived to be mistreatment of his sons. Appellant expressed regret and remorse,
which are entitled to some mitigating weight. See
State v. Mitts
, 81 Ohio St.3d at
236-237,
presented in mitigation against the R.C. 2929.04(A)(7) aggravating circumstance appellant was found guilty of committing. We find that the aggravating circumstance clearly outweighs the mitigating factors beyond a reasonable doubt. As a final matter, we have undertaken a comparison of the sentence imposed in this case to those in which we have previously imposed the death penalty. Appellant’s death sentence is neither excessive nor disproportionate in
S C comparison to the penalty imposed in similar cases. See,
e.g
.,
State v. Benge
(1996),
the court of appeals and uphold the sentence of death.
Judgment affirmed. M OYER , C.J., R ESNICK , F.E. WEENEY , OOK and L UNDBERG S TRATTON , JJ., concur.
P FEIFER , J., dissents.
__________________
P FEIFER , J., dissenting.
Every murder is a tragic act; this one is no different. However, not
every murderer warrants death. The constitutional purpose of statutory aggravating
circumstances is to narrow the class of murderers to those deserving society’s
ultimate punishment, the death penalty.
Zant v. Stephens
(1983),
evidence disclosed in the record and having considered the offense and the offender as required by R.C. 2929.05(A), I believe that the aggravating circumstance O’Neal was found guilty of committing does not outweigh the mitigating factors beyond a reasonable doubt. Accordingly, I believe the sentence of death is not appropriate and dissent.
__________________
APPENDIX
{¶ 100} “Proposition of Law No. I: A person does not lose all possessory interest in the marital residence, nor the right to legally enter that residence, because he has temporarily left the residence as a result of a marital argument.
{¶ 101} “Proposition of Law No. II: Trespass is an essential element of aggravated burglary, and where defendant enters the marital residence, prior to the issuance of any court order restricting him from doing so, he does not commit a trespass or a burglary. “Proposition of Law No. III: The state’s use of peremptories to
excuse three Afro-American jurors, without articulating inadequate [ sic ] non- discriminatory reason [ sic ] for their dismissal, combined with the acknowledged fact that defendant is a member of a cognizable racial group, violates defendant’s right to equal protection under the United States and Ohio Constitutions. “Proposition of Law No. IV: Admission of multiple hearsay statements allegedly made by the victim denies defendant the right to confront the witnesses against him, and to due process of law, where the admitted statements do not fall into any recognized hearsay exception. “Proposition of Law No. V: When the jury, on the basis of the
evidence presented, could reasonably find for the state on all elements of aggravated murder except prior calculation and design, or commission of an underlying felony, the trial court must charge on the lesser included offense of murder if a timely request for such a charge is made. “Proposition of Law No. VI: Admission in evidence of statements
elicited from defendant while in custody, which are obtained by deception, and are thus not the product of a knowing and intelligent waiver, violates the Fifth and Sixth Amendments to the United States Constitution and parallel constitutional and statutory provisions in the state of Ohio.
{¶ 106} “Proposition of Law No. VII: Ohio’s death penalty statute mandates that the nature and circumstances of the offense can only be considered as mitigating factors; thus, their consideration as aggravating factors, as well as appeals to emotion, violates this statute and defendant’s right to be free from arbitrary infliction of the death penalty as guaranteed by the Eighth Amendment to the United States Constitution, and parallel state provisions. “Proposition of Law No. VIII: Although multiple charges of
aggravated murder may be submitted to the jury during the guilt phase of trial, where there is only one death charge there can be only one conviction, and presentation to the jury of multiple counts, with multiple specifications, followed by imposition of multiple death sentences, violates defendant’s right to be free from cruel and unusual punishment under the state and federal Constitutions. “Proposition of Law No. IX: The alternative provisions of O.R.C. § 2929.04(A)(7) are mutually exclusive and, where one is presented to the jury as an aggravating circumstance, inclusion of the other undermines the required reliability of the jury’s determination, in violation of the Eighth Amendment to the United States Constitution and by parallel state constitutional provisions. “Proposition of Law No. X: The Sixth Amendment to the United States Constitution, and the parallel provision in Ohio’s Constitution, require that juries be a cross-section of the jurisdiction where a defendant is tried, and systematic exclusion of prospective jurors opposed to the death penalty violated defendant’s right to a fair and impartial jury which reflects the community from which it is drawn, as guaranteed by the state and federal Constitutions. “Proposition of Law No. XI: An instruction to the jury at the penalty phase of trial that it could not be governed by considerations of sympathy, improperly restricts consideration of legitimate mitigating factors, in violation of the prohibition against cruel and unusual punishment embodied in the state and federal Constitutions.
{¶ 111} “Proposition of Law No. XII: Imposition of the death penalty without proof beyond a reasonable doubt of all statutory aggravating circumstances violated defendant’s rights under the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and corresponding provisions of the Ohio Constitution. “Proposition of Law No. XIII: Use of the same operative fact to
first elevate ordinary murder to aggravated murder and then to capital, death eligible, aggravated murder violates defendant’s protection against cruel and unusual punishment as secured to him by the Eighth Amendment, and the right to due process and equal protection of law under the Fourteenth Amendment and corresponding provisions of the Ohio Constitution. “Proposition of Law No. XIV: Imposition of the sentence of death
on defendant violates his rights under the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the federal Constitution, and his right to due course of law and punishment not cruel and unusual under the Ohio Constitution. “Proposition of Law No. XV: Defendant’s sentence violates the
Eighth and Fourteenth Amendments to the Constitution of the United States, and parallel state provisions, because it is disproportionately severe in relation to the crime committed, and to sentences visited upon others for the same crime in the same and other jurisdictions. “Proposition of Law No. XVI: Defendant’s death sentence must
be set aside because it is disproportionately severe when compared to other cases in Hamilton County and in the state of Ohio in which capital sentencing decisions were made. “Proposition of Law No. XVII: The combined effect of errors in
evidentiary rulings, and rulings on pretrial motions denied defendant a fair and impartial disposition of his case, and made imposition of the death penalty arbitrary, all in violation of defendant’s rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitutions [ sic ], and parallel state provisions.”