State v. Obermiller (Slip Opinion)

tried to Both actors acts. wrongful used to avoid detection dishonesty that is the same suffer Both should corruption. in the involvement cover their up culpable. are they equally because consequence, these two former of either of clear, the actions condoning I am not To be protect more than sufficient However, is suspension an indefinite

judges. it practical purposes, For all person. from either from future misbehavior public reinstate- for applying could even consider Terry years another five before will be of this majority convincing task of the formidable would then have ment. He to offer something positive has his life and changed that he has court at that time slim, Ibut are no doubt happening of that The prospects of this state. people I no that time. see decision at right to make the my colleagues have trust and he is He made a mistake at this time. that door shut slamming benefit inappropriate. today. for it Disbarment paying I must dissent. Accordingly, Scheetz, Assistant Counsel, Donald M. Drexel, Disciplinary J.

Scott Counsel, for relator. Disciplinary Koblentz, Froning, E. Nicholas Penvose, L.L.C., Richard S. &

Koblentz Penvose, respondent. L. Bryan Appellant. Obermiller, Ohio, Appellee, 2016.) April 2015 Decided

(No. September 2011-0857 Submitted O’Connor, C.J. This is an as of appeal right aggravated-murder from two convictions and

death sentences. Denny pleaded guilty rape Schneider, murder of his grandmother, husband, Candace and the murder of her Donald A three-judge Schneider. panel unanimously sentenced Obermiller to death for the aggravated murders and to more than years in prison his noncapital convictions. affirm We his convictions and death sentences.

{¶ 2} Background

Relevant Because pleaded guilty, the trial court held a hearing {¶ 3} before a three-judge panel pursuant R.C. 2945.06. The state presented witnesses, one additional witness later testified at the panel’s request, and the state introduced a large amount of documentary evidence, and photographic which established the facts. following

The Evidence Shortly before Tuesday, 10, 2010, noon on August {¶ 4} Officer Michael Gazer was dispatched to the Ohio, Schneiders’ house in Maple Heights, in response to a theft complaint. Donald and Candace told Gazer that they suspected Obermiller stealing rare coins from their home. that day, Later job Candace went to her at gas a station in Garfield Heights. Candace closed the store around 11:45p.m. Candace was scheduled to work day, the next August but she did not come in. The manager of the gas station a telephone received call on August 11 from a male who identified himself as Candace’s nephew. The caller said Candace would not be coming to work day because her husband hospital. Candace Flagg, one of the Schneiders’ granddaughters, became con- cerned when grandmother her did not call her on Flagg’s birthday, as was her grandmother’s 13, 2010, custom. On August after attempting to call the Schneid- many answer, ers times getting no Flagg contacted a number of family members an effort Candace, to locate they but all told her that they had not heard from the Schneiders. Flagg When called Candace Schneider’s workplace, she was told that Candace was at a hospital with Flagg Donald. called several hospitals, area but she could not find grandparents. her Flagg also contacted her cousin, Obermiller, who told her that try he would to check on the Schneiders and get back to her. Obermiller did not call her evening. day, next Flagg called Obermiller again. initially told

her that yet he had not stopped by the Schneiders’ house. But when Flagg said that she was going ask some Schneiders, friends check on the changed story and told her that grandparents their were fine and that he had Maple calling people, Flagg on them. several other contacted

checked After requested grandpar- that an officer her Department stop by Police Heights past that an officer had driven Flagg subsequently house. informed ents’ driveway. van parked house and had seen Donald’s returned early evening August Maple Heights police In the on After Flagg’s request. to the Schneiders’ house to conduct welfare check doorbell, through knocking ringing on the front door and officers looked floor, window, through forced open body lying way saw on the their partially door, on burning odor natural A strong gas. the side smelled candle was room, in the and the stove in the had been left living gas the mantle unlit kitchen the burners One of officers threw the candle out the door exposed. on with gas turned off the stove. lying body Officers in the first-floor bedroom. She was found Candace’s arms and handcuffed on her back on the floor with her above her head her wrists neck, partly A a sheet power wrapped cord was around her and bed together. her torso face. condom completely covered and covered her Police recovered in and two condoms wrappers used same bedroom. body in the second-floor bedroom. Officers found Donald’s on the bed 10}

{¶ feet at right and on his with his wearing only lying He was underwear was side back, a hands handcuffed his bed the head of the bed. Donald’s were behind his neck, and a comforter most of sheet was tied around his face covered that a body An that the of his could indicate body. investigator positioning noted yanked A had from the wall in telephone had occurred. cord been struggle wrapped body.' Donald’s bedroom and was around his Heights Department Detective Police Maple Allen Henderson arrived soon a notified them dispatcher on the scene after partner house, his they through homicide. testified that as walked double Henderson a had in from the same complaint had that theft come partner remembered Donald, had report, a few and that who had made the days residence earlier the culprit. Obermiller was suspected removed grates had been Investigators caps noted burner An set stove kitchen. observed that a television gas investigator

from the in the room, by as a dust living from the mantle indicated missing was above hearing grandparents at the that her hanging Flagg testified outline cables. set, had above large, they television which mounted owned flat-screen living mantle in the room. Smith, M.D., autopsy K. conducted Candace’s Deputy Coroner Jimmie mild of Candace’s neck due hemorrhaging 2010. There was August

on her left it, hand and inside of around on the back of her left ligature bruising skull, her immediately adjacent knee, scalp tissue hemorrhaging diffuse and an on abrasion her forehead. Dr. Smith testified that all of injuries could have occurred during strangulation, her the bruise on although her hand could have been defensive wound. Dr. opined Smith wound scalp consistent with blunt-force trauma to object the head from an a flat having or Dr. rounded surface. Smith concluded that the cause death was “asphyxia by cervical compression (ligature strangulation).” upon Based decompositional changes and police reports, he estimated that approximately Candace died four days before he examined her. trauma, Dr. Smith found vaginal no indication of vaginal but smears positive

tested for the presence spermatozoa. Subsequent forensic testing swabs, vaginal performed by analyst an with the DNA department of the Office, Cuyahoga County Coroner’s presence confirmed the of seminal material containing DNA matched profile major Obermiller’s DNA as a contributor to degree reasonable of scientific certainty. Obermiller also could not be excluded as epithelial the source of cells found the two used condoms. Deputy Felo, D.O., Medical Examiner Joseph conducted autop- Donald’s

sy and concluded that the cause of Donald’s death was the same as Candace’s: “asphyxia by cervical compression (ligature strangulation).” Dr. Felo also found a nonfatal sharp-force injury underneath the right jaw, side of Donald’s which he classified the autopsy report as a “stab wound” because it was deeper than it Dr. opined wide. Felo at evidentiary hearing that it was possible also that the injury may have been discharge caused range close from a “starter pistol type of handgun” police had recovered when Obermiller was apprehended. 15, 2010, August On one of Obermiller’s relatives police

{¶ 16} informed Obermiller had contacted him and was to the driving relative’s home at Buckeye Lake. Police officers subsequently located Obermiller at a gas station Licking County and him arrested after a brief foot chase. History

Procedural A grand jury indicted murder, Obermiller on seven counts of aggravated {¶ 17} theft, three counts of two counts of two kidnapping, counts of aggravated robbery, and one count each of rape, aggravated burglary, tampering with evidence, attempted arson, aggravated and burglary. Many of noncapital (R.C. 2929.13(F)(6)) counts prior-conviction included and repeat-violent-offender (R.C. 2941.149(A)) specifications. Counts 1 4 and charged Obermiller with the aggravated

{¶ 18} murders of Candace, Donald and respectively, with prior calculation and design. Both counts included death-penalty (R.C. specifications for course of 2929.04(A)(5)), conduct (R.C. murder to escape 2929.04(A)(3)), (R.C. detection witness murder

179 kidnapping, 2929.04(A)(8)), aggravated robbery, on felony predicated and murder (R.C. 2929.04(A)(7)). 4 also contained death- Count burglary aggravated and (R.C. 2929.04(A)(7)). rape on predicated murder felony penalty specification of Donald felony with the murder 2 charged Counts and 3 Obermiller {¶ 19} respectively. aggravated burglary, and robbery committing aggravated while included Count death-penalty specifications included the same six Each count while felony with the murder Candace charged and 7 1. Counts Obermiller and and aggravated burglary, rape, respectively, robbery, committing aggravated contained specifications death-penalty included the same seven each count Count and jury pleaded guilty trial right waived his Obermiller

{¶ 20} three-judge evidentiary hearing before an proceeded indictment. case him all counts evidentiary hearing, guilty found After the panel. specifications. that the court requested the state mitigation phase, At the start of and Obermiller waived specifications, of the counts and

merge number competent determining After that was mitigating evidence. presentation of it sentence so, and declared that would many of the counts panel merged do specifications 1 with for course following charges: on the Count conduct, for course of murder, 4 with specifications Count conduct witness 13 (rape), on Count Count murder, felony predicated rape, murder witness (theft), (theft), (attempted Count Count burglary), Count (aggravated arson), (burglary). and Count aggravated him to death on Counts unanimously sentenced Ultimately, remaining counts. years on the sentence of 32.5 aggregate

and 4 and to an this court. timely appealed to

Analysis ten through sentences his convictions death challenges them out of order. of law. address We

propositions Issues Pretrial self-representation

Right to his Amend- Sixth No. Obermiller law proposition judge request denied presiding violated both when rights ment were out of bullied panel “successfully [him] three-judge and when the waive counsel should also contends to himself.” Obermiller represent his desire standby counsel. appointing possibility have the explored in rooted the Sixth is right self-representation to A criminal defendant’s all criminal Constitution, “In provides: which to the United States Amendment 180 * * *

prosecutions, accused shall have the the Assistance of Counsel for his court, any trial, The that provides any defence.” Ohio Constitution the “[i]n party appear person accused shall be allowed to and defend in and with counsel.” I, 10, Article Section Ohio Constitution. The to right Sixth Amendment counsel a “implicitly embodies- ‘correla ” Martin, 385,

tive to with a right dispense lawyer’s help.’ State v. Ohio 103 St.3d 227, 23, v. quoting Adams United ex rel. States McCann, 236, (1942). 317 U.S. 63 268 right S.Ct. 87 L.Ed. This defendant, thwarted when counsel is forced an upon unwilling who alone bears of a potential 806, risks conviction. See v. California, Faretta 422 U.S. 819- 820, 2525, 95 45 S.Ct. L.Ed.2d 562 Faretta, Supreme United States Court held: merely Sixth Amendment does not provide a defense shall be accused;

made for the it to grants personally right the accused accused, counsel, make his It is defense. not who must be “informed accusation,” nature and cause of the who must be “confronted him,” the witnesses against who must be “compulsory accorded obtaining process witnesses his favor.” not Although stated words, in many Amendment so right self-representation make —to one’s own personally defense thus necessarily implied by the structure —is of the Amendment. The right accused; defend is given directly for it is he who if consequences suffers the defense fails.

Id. Not long decided, after Faretta held that the Sixth Amendment

“guarantees defendant in a state criminal trial an has independent constitutional right self-representation may proceed defend himself without counsel when he voluntarily, and knowingly intelligently Gibson, do elects to so.” State 45 366, (1976), v. Ohio St.2d 345 N.E.2d 399 one of the paragraph syllabus, Faretta. citing recognized We have also if trial court denies the right self-representation that right when is properly invoked, is, se, per Reed, denial 534, reversible error. State v. 535, (1996), 177, v. citing Wiggins, McKaskle 465 U.S. (1984), S.Ct. 79 L.Ed.2d 122 fn. 8. although And Faretta capital case, see Faretta both the United States Supreme Court and court this have applied capital Faretta cases and acknowledged have that valid waivers of See, in capital Moran, counsel cases will be upheld. v. e.g., Godinez 509 U.S. (1993); Jordan, 113 S.Ct. L.Ed.2d 2004- Ohio-783, 804 N.E.2d 1. an We have held that it is abuse discretion for trial

181 if the capital pro a in a case to se proceed to to allow defendant court refuse Dean, to v. 127 the properly right self-representation. invokes defendant ¶ 2010-Ohio-5070, 97, a 140, Determining N.E.2d 74. whether 937 duty is a critical right self-representation has invoked the to properly defendant in case, capital is a case. especially important but the determination any the explicitly must and invoke” “unequivocally A criminal defendant 29} {¶ Cassano, 94, 2002-Ohio-3751, to v. 96 Ohio St.3d right self-representation. State ¶81, for be both Requiring request self-representation 772 38. N.E.2d that a defendant will not explicit helps “tak[e] and to ensure unequivocal to counsel and exclusivity rights the mutual advantage manipulat[e] of and (4th Frazier-El, 553, 559 204 F.3d Cir. self-representation.” United States 2000). reason, every presumption “indulge For courts must reasonable this Williams, 387, 404, 97 Brewer v. 430 U.S. against right waiver” of to counsel. (1977).1 1232, 424 51 L.Ed.2d S.Ct. Faretta, the trial court must be sure Additionally, recognized as was “traditional intelligently” forgoes “knowingly

that the criminal defendant 2525, 835, at 95 S.Ct. 45 right with the to counsel.” U.S. benefits associated skill and of a experience not himself have the L.Ed.2d 562. The defendant “need himself, but he “should be made aware represent in order to choose to lawyer” so that the record will dangers disadvantages self-representation, eyes is made with doing he is and his choice establish that ‘he knows what ” 236, Adams, 279, Id., S.Ct. 87 L.Ed. 268. open.’ quoting U.S. “depend[s], eyes open typically choice Whether a defendant’s was made case, surrounding case, facts and circumstances upon each the particular Johnson v. and conduct of accused.” including background, experience, 1019, Thus, a Zerbst, 458, 464, L.Ed. 1461 304 U.S. S.Ct. self-representation triggers right unambiguous assertion defendant’s to establish that defendant inquiries to conduct the Faretta duty trial court’s depends request. Proper right also on timeliness of the to waive counsel invocation ¶ 2002-Ohio-3751, Cassano, has 40. This court held 772 N.E.2d State v. 96 Ohio St.3d ¶ 40; untimely. days prior trial id. at see request made three was See to waive counsel ¶ (defendant’s Vrabel, 52-53 State v. 99 Ohio St.3d also day represent completed and on the first evidence was request voir dire had been himself after 2014-Ohio-1914, 12 untimely); Neyland, presented State v. be was just trial-phase closing ¶ self-representation not made until before (request that was 76-77 for Here, although jury untimely). trials. Obermiller’s arguments But those cases all involved pleaded begin, guilty waived his day request until the his trial was to made addition, request to waive jury no that Obermiller used his right to there is trial. circumstances, timing of these delaying at 40-41. Under as a tactic. See Cassano counsel his Sixth claim that the violated request to waive counsel is not fatal right self-representation. Amendment knowingly and voluntarily waiving right his constitutional to counsel. United Cromer, (6th Cir.2004). States v. 389 F.3d 682-683 if Finally, unequivocal even a defendant has made an explicit later, request self-representation, may request by a defendant waive Cassano, 94, acquiescing representation. counsel’s See 96 Ohio St.3d 2002- ¶ Ohio-3751, 81, McKaskle, 772 citing N.E.2d at at 104 U.S. S.Ct. 79 L.Ed.2d 122. request self-representation

Obermiller’s first for Obermiller presiding judge contends the his “improperly denied 32} {¶ to request represent disagree. himself.” We On trial day begin, the was set to Obermiller told trial “I judge: the change my

wish to I plea guilty represent and would also like to myself from point this forward.” The presiding judge explained first that in a Obermiller case, a must capital guilty plea three-judge be considered panel before it is accepted. The next judge addressed Obermiller’s request self-representation. for judge questions, The asked Obermiller 13 substantive to his mostly related counsel, interactions and of satisfaction with degree his current previous his incarceration, his with experience juvenile-justice system, the his After age. .and inquiry, this brief trial judge time, the informed Obermiller “at this the is not going Court grant request.” She further presence stated his of the issue self-representation would panel be revisited once the was selected. facts, Under presiding judge these the deny did not Obermiller’s request self-representation; for she merely postponed consideration of the re- quest. The judge specifically declared that selected, once the had panel been the court would question revisit the of self-representation. And it did. The of postponement self-representation the inquiry appropriately per-

mitted panel the additional participate members to evaluating request. no And substantive proceedings occurred between the presiding judge’s discus- sion with self-representation his request and the three-judge panel’s Thus, resumption inquiry. contrary assertion, to Obermiller’s presiding judge never request. “denied” his Indeed, in previous cases which trial court multiple 36} held hearings

{¶ ruling before on a request defendant’s self-representation, for have not found that the court erred in failing immediately Martin, to rule request. on the See ¶ 385, 2004-Ohio-5471, (trial “[ujlti- 103 Ohio St.3d N.E.2d court * * * mately reserved on judgment until representation issue another pretrial conference”); Taylor, State v. (trial court held separate at least four hearings, over the course weeks, counsel).

of multiple request on defendant’s waive request his Next, panel’s colloquy regarding 37} {¶ “designed that it to wear unnecessary [him] for self-representation down.” request self-representation three-judge (cid:127)panel

The revisits and convened jury trial court waiver accepted After the regarding his extensively questioned Obermiller panel, panel three-judge familiarity on questions The focused Obermiller’s to waive counsel. request Code, Ohio Revised criminal-justice and with Title 29 system (with legal an on Obermiller’s lack of edu- emphasis background educational cation), explored the various knowledge procedure. panel of trial and his warned that he would be held self-representation, pitfalls related him the attorney, and discussed with as would licensed the same standards on if he counsel. The appeal claims that he would forfeit waived possible timing for the of his to waive request about the reasons also asked Obermiller counsel and his satisfaction with defense counsel. indictment into the record and Finally, parts read 39}

{¶ the with which he about his awareness of crimes was questioned Obermiller the of lesser-included and inferior- charged concepts and whether he understood the questioned whether Obermiller understood panel offenses. The degree that did not part for the most admitted gravity of a case. Obermiller capital murder, including of of legal or the nuances the crime concepts understand those him, to pitfalls the described Obermiller justifications. Despite defenses and stated, going I feel with my attorneys. it with confident “I have discussed attorney.” without an minutes, sug- which Obermiller This lasted colloquy approximately 40}

{¶ of time to But minutes is not a burdensome amount long. was too gests in a self-representation capital case. the issue explore inquiry that the was unneces- panel’s to assertion Contrary Obermiller’s to addition unequivocal request represent an to himself because he made sary, indictment, capital to Faretta guilty plea to a stating that he intended enter Faretta, was to a Under rigorous colloquy. conduct required dangers “made of the aware to ensure required that Obermil- showing to establish record self-representation,” disadvantages of “ ” Faretta, 422 ‘eyes open.’ U.S. to himself represent ler made the decision Adams, 279, at 63 S.Ct. 317 U.S. quoting at 45 L.Ed.2d 95 S.Ct. on the event, “rigorous restrictions any imposes Faretta L.Ed. 268. In defendant, must procedures and the conveyed be information must at trial.” to counsel observed, right him to waive his permitting before be (1988), Illinois, 285, 298, 108 101 L.Ed.2d S.Ct. v. 487 U.S. Patterson citing Faretta at 835-836. light In of the that a trial “must requirement judge investigate [a

{¶42} request self-representation] thoroughly defendant’s for as and as long as demand,” Gillies, circumstances the case before him Von Moltke 332 U.S. 708, 723-724, (1948), 92 L.Ed. 309 cannot say panel’s S.Ct. that the was unreasonable or that the into colloquy panel coerced Obermiller accepting case, representation. capital duty the court has a corresponding ensure searching A reliability proceedings. colloquy nothing less would have been than important rights guaranteed by more “token obedience” to the the Sixth Amendment, given significance charges- penalty— the ultimate —and Obermiller faced. See id. The court must right be satisfied waiver of the to counsel is knowing colloquy and the court’s voluntary, must ensure that the defendant has been aware of dangers disadvantages “made of self-representation.” case, Faretta at specific 835. The nature from colloquy varies case to depending on the nature charged and circumstances of the offenses and potential penalties the defendant faces. The record here does not establish that the colloquy designed

“wear down” Obermiller or overcome his stated desire represent himself. Rather, whole, when considered as a the three-judge panel’s was under- inquiry taken to with its comply duty ensure that it fully informed Obermiller of the himself, risks of his decision represent order to satisfy requirements for rigorous inquiry Supreme mandated Court Faretta and other cases. Moreover, the record establishes that ultimately withdrew request self-representation for and that this decision was knowing voluntary. request withdraws his self-representation any Before on the ruling self-representation made, request 46} a panel

{¶ Obermiller, member stated: “Mr. you your have own purpose, your purpose you is want your to be own attorney you present so can no you defense and don’t * * * want your to do own anything you] on behalf. just want to sit there [Do this, punches?” and take To Obermiller replied: ‘Tes.” judge The this pursued line of a bit further questioning before Obermil- ler abruptly stated: * * * no

There’s I do thing saying got anything. to Or if you keep even here, these people they two can still only do what I tell to them do. So point what’s the with all I questions? these don’t it. understand Whether fact, or not you want them can keep they here —as matter of I stay. really don’t at point. care this follow-up questions several this, a member asked Hearing panel request to waive counsel: had withdrawn his

confirm Obermiller to coun- [your right you Then won’t waive Okay. SAFFOLD: JUDGE sel], stay. No, They I it. can don’t waive

THE DEFENDANT: your then right. proceed All You want SAFFOLD: JUDGE lawyers? Yes.

THE DEFENDANT: indicate that the record you. Thank Let Okay. SAFFOLD: JUDGE * * * before questions being placed inquiry proper had an with the we’ve * * * counsel, Mr. not Obermil- or to waive the defendant on whether request. has withdrawn ler intention to any “abandoned definitively At point, this 81, 2002-Ohio-3751, Cassano, 772 N.E.2d at 94, 96 Ohio St.3d himself.”

represent ¶ 944, 182, L.Ed.2d 122. And McKaskle, 465 U.S. at S.Ct. citing Instead, request self-representation. never reasserted counsel. represented continued with Obermiller proceedings counsel option standby by failing to “discuss erred Finally, right have recognized “[o]nee counsel.” We appointing standby option of standby waived, appoint permitted courts are trial properly to counsel Martin, St.3d Ohio pro se defendant.”2 to assist otherwise counsel ¶ jurispru- nor federal But neither state 2004-0hio-5471, at 28. counsel of the waive to inform a defendant who seeks a court requires dence standby potential for counsel. mem- Moreover, during colloquy self-representation, about “I counsel, responded, and he discharge why he wanted asked Obermiller

ber standby representation that” in “[hjybrid representation from differs stated that 2. We have co-counsel, sharing responsibilities in counsel act as hybrid representation, “the defendant and an trial,” standby representation, assists otherwise conducting counsel preparing whereas or unable to decides only request or if the defendant is upon that defendant’s pro se defendant Martin, 29. And pro to continue se. counsel, has no pro to have he right appear or to se although ‘“has the either a defendant ” ¶ 31, quoting v. Id. right on his own behalf.’ corresponding act as co-counsel (1987). 1, 6-7, 407 Thompson, 514 don’t need them.” When to explain, repeated asked he that he did not need counsel, stated, them, he further I “If I’m keep going not let them no put Thus, up.” defense the record indicates a discussion of the of possibility standby counsel would not have changed position Obermiller’s his prior to request withdrawal of the to waive counsel. reasons, reject For the foregoing we of law proposition No. and hold

{¶ 52} that Obermiller’s right self-representation Sixth Amendment was not violated.

Right against self-incrimination We turn next to proposition of law No. in which Obermiller argues {¶ 53} that the trial court his Fifth right against violated Amendment self-incrimination it when denied motion suppress his certain statements he had made. We also of portion address the of proposition law No. in which Obermiller contends that defense counsel provided constitutionally ineffective assistance when counsel to adequately failed raise the interrogation issue custodial in the motion suppress. Specifically, Obermiller contends that the trial court erred when it found subjected he was not to custodial interrogation when he made incriminating

statements to at the officers time of his arrest. He further that he was especially prejudiced by the trial court’s suppress refusal to a statement he made in response to a question why about his grandmother. killed protests that ruling the court’s on the motion to suppress likely his “tainted decision to plead guilty charges against him” and states likely that he “would not have done so but for that erroneous ruling.” A guilty plea complete is a of guilt 11(B)(1), admission under Crim.R. * * * and a “defendant who voluntarily, knowingly, intelligently enters a plea of guilty with the assistance of counsel ‘may thereafter independent raise claims relating to the deprivation rights constitutional prior occurred ” entry guilty plea.’ State v. Fitzpatrick, 102 Ohio St.3d 2004- Ohio-3167, Henderson, quoting Tollett U.S. S.Ct. L.Ed.2d 235 Obermiller has not challenged guilty his on plea appeal. By pleading guilty, Obermiller waived his right any to raise allegations of constitutional violations flowing from the trial court’s resolution of his suppression- motion. Thus, Obermiller is barred from raising appeal on his challenges related to the motion to suppress. deny Accordingly, eighth proposition law and the portion

related fourth proposition of law.

187 Plea-Hearing Issues

Evidentiary challenges contends 3,No. in of law which proposition turn now We 58} {¶ as well statutory rights, and constitutional violated his three-judge panel irrelevant, inadmissible, 403, 404, and allowed 401, when it elicited as Evid.R. record, testimo- prior juvenile of his including evidence prejudicial evidence— silent, hearsay testimony, and to remain ny right his exercise of his regarding proposition Because testimony from a withdrawn witness. allegedly prejudicial objection gruesome photo- of 7 to the admission of law No. concerns similar we also address that claim here. hearing, the R.C. 2945.06 graphs during of any the existence “any tendency if it has to make Evidence is relevant or probable of action more to the determination consequence fact that is 401. And relevant “[a]ll than it would be without” it. Evid.R. probable less 402, admissible,” subject specified Evid.R. exceptions, is' certain evidence of unfair substantially danger is outweighed its value probative unless 403(A). issues, Evid.R. misleading jury, or prejudice, confusion 403(B), to exclude relevant Further, a trial court has discretion under Evid.R. considerations of substantially outweighed by “if is probative evidence its value of cumulative evidence.” delay, presentation undue or needless cases, scruti “heightened that in Initially, capital contends argument, Obermil objections. 403 of this ny” applies support to all Evid.R. (1987). Morales, But the 267 v. 32 Ohio St.3d 513 N.E.2d ler invokes State capital in cases evidentiary applies that a “stricter standard” holding Morales Mammone, v. 139 photographs. State gruesome is to the admission limited ¶ no 2014-Ohio-1942, offers 13 N.E.3d 96. Obermiller Morales, and we decline holding our justification revisiting expanding or cases, height reject capital claim that Accordingly, we do so. objections. to all 403 applies standard Evid.R. evidentiary ened evidence, and in the admission of trial has broad discretion “The court materially has defendant been discretion and the clearly unless it has abused its of the trial decision court should not disturb the thereby, an prejudiced appellate (2001). Moreover, a Issa, 49, 64, 752 N.E.2d 93 Ohio St.3d court.” State v. relevant, material, only the to have ‘considered “three-judge presumed appears it affirmatively its unless arriving judgment at competent ” Jackson, 141 Ohio St.3d State v. contrary.’ 146, 151, White, v. 15 Ohio St.2d State quoting (1968). trial, plain- Further, objection has not raised an when a defendant Barnes, N.E.2d 1240 applies.

error review affecting substantial 52(B), “[pjlain errors or defects Under Crim.R. may they be rights although brought noticed were not to the attention of the standard, prevail plain-error court.” To under the a defendant must show that occurred, obvious, an error that it was and that it affected his substantial rights. (also stating Barnes at that an error affects rights substantial under Crim.R. 52(B) trial). if only it affects the outcome We take error plain “[n]otice * * * caution, with the utmost under exceptional circumstances and only prevent miscarriage justice.” a manifest State v. 53 Long, Ohio St.2d 372 N.E.2d 804 juvenile

Prior record (also Stacy the direct examination of During Muzic to in the referred {¶ 63} Stacy Lykins), as transcript stepmother, Obermiller’s former she testified not being she could recall the victim in a juvenile-court 1996 domestic-violence Obermiller, against added, who proceeding years was old at the time. She “No, Denny However, has put never hands on me. Never.” Muzic also testified that “there’s lot stuff’ that she does not injuries remember due to car she suffered a 2007 accident. Obermiller argues prior juvenile that evidence of his record was 403(B).

inadmissible under Evid.R. He contends that particu- this evidence was larly damaging and it prejudicial because “involved a act against violent another caregivers.” object Because Obermiller failed to to Muzic’s testimony at the hearing incident, regarding the domestic-violence he has all but forfeited plain-error review. State v. 101 Ohio Perry, St.3d plain

We find no error here. Obermiller’s alleged prior juvenile adjudication for domestic violence was not introduced or admitted into evidence. Muzic denied any memory of Obermiller, 1996 domestic-violence incident involving state did not any introduce other would tend to establish the alleged juvenile adjudication for domestic Additionally, violence. the record does questioning demonstrate of Muzic about the incident affected the Therefore, outcome of the case. Obermiller cannot demonstrate plain error with respect to this evidence.

Testimony about Obermiller’s silence During plea hearing, testimony state offered the of Detective Henderson, investigating officer charge Obermiller’s case. Henderson had been summoned Licking County after Obermiller was arrested there and transported County. him to Cuyahoga After the defense waived cross-examina- tion, panel one of members asked any Henderson if Obermiller had made to him. statements Before Henderson response, objected finished his the state on the basis that questioning directed Obermiller’s invocation of his However, right stated that panel member remain silent.

right to had to come from any objection therefore and that object belonged Obermiller objection. him. But offered no judge asked its and the same questioning, resumed an-

Henderson, him?” Henderson opportunity question “Did have an you to him” that once Obermiller to talk but that he had “intended swered much that he didn’t have pretty “he told me rights, of his Miranda advised me.” The chose not to speak on his mind to talk about and anything any had made statements whether Obermiller again member asked Henderson arrested, that there were no replied and Henderson than at the time he was other other statements. on a or the court comment prosecutor It for either the improper California, of his to remain silent. right invocation

defendant’s Griffin (1965). However, we have held that 609, 615, L.Ed.2d 106 U.S. S.Ct. any without to a silence police suspect’s officer as single comment “[a] harmless error.” infer from the silence constitutes jury guilt suggestion (2001), Meeks v. Treesh, citing N.E.2d 749 St.3d State v. 90 Ohio (6th Cir.1976). Moreover, Havener, 9, juries, unlike are “[jjudges, 545 F.2d 10 disregard any to expected are trained and Judges know the law. presumed to Davis, 584 63 Ohio St.3d influences deliberations.” State extraneous 1192 N.E.2d trial, at review his objection an Because did not raise Obermiller

{¶ 69} 2004-Ohio-297, 643, 118, N.E.2d Perry, 101 Ohio St.3d plain claim for error. ¶ materially was not about silence testimony at 14. Henderson’s Obermiller’s here, was made to testimony And the single, from a isolated comment. different Thus, the hearing. panel even if erred guilty-plea a three-judge panel during a Henderson, that the error affected Obermiller’s say of we cannot questioning its nor the detective’s questions the panel’s because neither rights, substantial Barnes, 27, at 52(B); Ohio St.3d See Crim.R. implied guilt. answers error. plain has failed to establish 1240; Treesh at Obermiller Unchallenged hearsay the introduction of have limited should panel Obermiller testimony what was inadmissible specify He hearsay. inadmissible does panel member during plea hearing, points but he out that hearsay, testimony here as object to to “some substantial had failed stated that Obermiller This comment of the defendant.” hearsay father to conversations Rimar, had had employer, Michael Obermiller’s on conversations that focused that Rimar testified father, Denny Lykins. particular, with and had been grandparents” “had killed his had him that Obermiller Lykins told arrested for a homicide. Rimar then that when he double testified realized that had purchased he number items from Obermiller around the time of the murders, Lykins again. he tried to reach Rimar further testified that later gave including all of the flat-screen television set had been items— Lykins, provided police. Schneiders’ home—to who them to the questioned by When object, member about the failure to defense counsel that he had followed object stated Obermiller’s instructions not to the hearsay, and counsel stated that this not his chosen strategy. personally confirmed for the court that it was voluntary his decision instruct not to object. defense counsel We plain-error are limited to review a as result Obermiller’s failure

object hearsay when alleged Fitzpatrick, introduced. 810 N.E.2d at 66. Obermiller cannot meet the plain-error because, standard even if a portion testimony of Rimar’s was inadmissible hearsay, record belies its admission affected Obermiller’s substantial Barnes, rights. 1240; See generally Ohio St.3d at 759 N.E.2d Long, at paragraph syllabus. two of the indictment, arrest, pleaded guilty upon he had confessed to the arresting officers that he had his grandmother. murdered He has no offered “ evidence to presumption relevant, rebut the that the panel ‘only considered ” material, and competent evidence at its arriving judgment.’ Fitzpatrick ¶ 66, White, quoting 15 Ohio St.2d at 239 N.E.2d 65. ”

Consideration “prejudicial innuendo “may contends have” testimony considered placed it before “prejudicial images innuendo” about the nature of found on computer in Branam, the Schneiders’ home. The state called Natasha a “comput- er specialist,” testify forensic hearing at the about her examination of the computer. Branam, had question After the state begun objected. the defense prosecutor The told the court that the intended to computer state use the information to show “accessing had been Internet porn sites.” But the ultimately state withdrew light Branam as a objections by witness of Furthermore, defense counsel. the state did to not seek admit Branam’s forensic report, which copies included of the images recovered from the computer. The panel later called Branam back as a court’s witness. Branam’s testimony as a began by focusing court’s witness on text to and messages sent from phone; Obermiller’s cell those are not messages at issue in appeal. this ended, that testimony panel After member asked Branam a question about the computer examined, she had objected and the again any testimony defense about images the found on of the computer. prosecutor The told the court that the on the images were of “a computer may certain nature that be relevant to the up tied and being or in terms Schneider died perhaps Miss Grandma

way Branam would further stated that that, prosecutor nature.” The all of a sexual prior months” images the were downloaded “some testify be able to Obermiller’s arrest. regard- Branam testimony to elicit from proceed But the did not panel

{¶ 75} return, a recess, and the member images. panel upon panel’s the took ing stated, pornography into issues.” point to at this delve the going “We’re this topic. no in the record that the ever revisited There is indication information about the any The record does not demonstrate that simply {¶ 76} or that the considered was admitted into evidence images computer on the have description testimony might state’s of what the its deliberations the the that would any fails to evidence in record point revealed. Obermiller Consequently, the court considered the information. support speculation plain not establish error. Obermiller does photographs

Gruesome gruesome the considered panel erroneously contends that Evid.R. 403. images and that the “cumulative use” of the violated photographs violated his gruesome photographs introduction of these He also that the trial, process, a fair due reliable rights constitutional federal state guilt. determination of photographs the introduced hundreds During plea hearing, state Many photographs of these investigation. of the homicide

showing every aspect victims, they and as underwent they both as were found depicted crime scene without depicted also photographs But numerous autopsies. allegedly had that Obermiller victims, and showed items such as coins others using when the car that Obermiller from the Schneiders’ home and taken was arrested. crime- gruesome guilty, “the admission pleaded Because Obermiller guilty verdict.” State could not have affected autopsy photographs

scene or ¶ Thus, Ketterer, impose panel’s decision alleged upon error effect only consider penalty. the death reintroduction of object Obermiller failed penalty phase, Ketterer Thus, but review. plain-error waived all photographs. circumstances of the double the nature and photographs portray 137. The ¶at 138. Obermiller or cumulative. See id.

homicide, repetitive are not they three-judge panel consid- presumption to rebut the offers no evidence at its arriving relevant, material, competent only ered Moreover, prejudiced by photographs. that he was or to establish judgment it permissible presented because is trial court to allow in the guilt repeated to be not phase mitigation phase, it was for the court to improper Vrabel, photographs mitigation phase. readmit the for the 184, 2003-Ohio-3193, Thus, Obermiller has not established plain error with to the respect admission the photographs. foregoing raised, Based on the regarding evidentiary challenges Thus, plain

Obermiller fails to establish reject error. of law propositions Nos. 3 and 7.

Ineffective assistance of counsel of law proposition No. Obermiller provided his counsel constitutionally ineffective assistance throughout hearing and plea mitigation Constitution; See Sixth phase. and Fourteenth Amendments U.S. Ohio Constitution, I, Article Section 10. Obermiller contends that defense counsel constitutionally following were ineffective for the making failures: not opening and closing arguments during phases; both not cross-examining state’s witnesses; and not objecting prosecutorial misconduct during plea hearing, to the introduction of allegedly inadmissible evidence elicited both the state panel, graphic the state’s use of photographs, to the panel’s questions to Detective regarding Henderson invocation his right to remain silent. He also maintains that counsel to file failed a “meaningful suppress” motion to and failed to “brief factors mitigating for the trial court.” In response, the state asserts that Obermiller’s refusal to allow defense counsel to actively defend him throughout the proceedings precludes finding that defense performance counsel’s in any respect. deficient The standard for addressing ineffective-assistance-of-counsel claims is first,

twofold: the defendant must show that his counsel’s performance was deficient, second, he must show that his counsel’s deficient performance prejudiced him. Washington, Strickland v. 466 U.S. 104 S.Ct. L.Ed.2d performance

Deficient The deficient-performance prong requires Obermiller establish that “counsel made errors so serious that counsel was as the functioning ‘counsel’ * * * guaranteed by the Sixth Amendment.” Id. This “is prong necessarily linked to practice expectations legal community: ‘The proper of attorney measure performance remains simply reasonableness prevail under ” ing professional 356, 366, 130 Kentucky, norms.’ Padilla v. 559 U.S. S.Ct. (2010), 176 L.Ed.2d 284 quoting any Strickland 688. And in case in which an raised, ineffective-assistance claim performance “the inquiry must be whether

193 all the circumstances.” Strick considering assistance was reasonable counsel’s land regard that with to decisions norms dictate Prevailing professional

{¶ 85} to the authority manage must have ‘full lawyer “a legal proceedings, to pertaining ” 186, 2009-Ohio-315, v. Pasqualone, of the conduct trial.’ ¶ Illinois, 400, 418, S.Ct. v. 484 U.S. 108 Taylor quoting (1988). 98 L.Ed.2d 798 In exist in a vacuum. However, duties do not professional counsel’s

{¶ 86} by requirements counsel is bound the legal effectuating representation, lawyer “a shall provide rules of Professional Conduct. Those Ohio Rules and, objectives of as concerning representation client’s the by abide a decisions they client as means which 1.4, consult with the required by Rule shall 1.2(a). Thus, has a to consult attorney duty an are to be Prof.Cond.R. pursued.” trial proceedings, that arise the during the client on matters important with as the client’s wishes to deficiently not when counsel heeds perform counsel does Cuyahoga Dist. No. Griffith, 8th objectives litigation. the See State Cowans, Ohio citing State v. St.3d 2012 WL not 80-81, example, attorney typically For an does desires, a to to client’s “by declining, assistance deference render ineffective at 81. mitigation.” Cowans present death-penalty- Here, the trial court two arraignment, appointed to prior a guilty entered represent Obermiller. Before Obermiller attorneys

certified to approximately Counsel filed zealously litigated his case. defense counsel plea, had made to statements Obermiller suppress a motion pretrial (including motions and a arrest), mitigation expert, investigator, hired a defense at the time of his docu- and obtained numerous competency, to evaluate Obermiller’s psychologist history. regarding ments this stages that from earliest But the record demonstrates request self-representation— after he withdrew

litigation even —and rejected their advice his counsel cooperate Obermiller refused panel during evidentiary hearing, example, For regarding most issues. state’s each of the cross-examine opportunity the defense offered had told that Obermiller consistently responded But defense counsel witnesses. the witnesses. not them to cross-examine them that he did want only a counsel raised evidentiary hearing, defense Similarly, during member to ask exhibits, prompting objections testimony few object to inadmissible evidence. strategy the defense’s whether it was following Obermil- attorneys were candidly explained counsel Defense affirmatively responded And counsel object. not to express ler’s instructions following attorneys felt that Obermil- member asked whether when objections regarding your ler’s orders had “interfered with ability present that you you presented defense feel that could as have counsel.” Panel members Obermiller, fact, also directly repeatedly was, addressed who indicated that it object his decision to not allow his in most attorneys to instances and to not allow addition, them to cross-examine witnesses. Obermiller was provided opportunity give closing argument plea at the hearing, but he refused to allow his counsel to do so. all Following panel’s finding guilt specifications as to counts and indictment,

in the panel proceed asked the immediately sentenc- ing. Obermiller waived mitigation and otherwise would not attorneys allow his on put any mitigating evidence. finally, And Obermiller would not allow his give counsel to a closing argument hearing. at the mitigation circumstances, all of the Given Obermiller has not {¶ demonstrated that 91} performance defense counsel’s was The constitutionally deficient. record is with evidence that replete objective Obermiller’s was plead as guilty charged mitigation and to offer no during sentencing. Obermiller instructed his counsel to refrain from objecting, cross-examining witnesses, the state’s offering opening and closing arguments statements during phases, both and offering any mitigat- ing evidence. Had instructions, defense ignored counsel Obermiller’s cross- examination and other advocacy might tools of have interfered with Obermiller’s present desire to no defense. recognize While we that not tactical every decision requires

{¶ client 92} approval, Pasqualone, 186, 2009-Ohio-315, 121 Ohio St.3d at there ais difference between the performance of counsel who his or exercises her professional judgment not to a pursue certain trial tactic performance and the is being counsel who by directed the client not to a pursue tactic, certain trial against even counsel’s circumstance, here, advice. In this latter present conclude that counsel’s performance abiding by Obermiller’s instructions was not performance deficient under Strickland.

Prejudice assuming Even that Obermiller could demonstrate {¶ that 93} defense counsel performed deficiently, prove he must also that he was prejudiced counsel’s performance. Strickland, 691-692, deficient at U.S. 104 S.Ct. L.Ed.2d 674. Obermiller knowingly, intelligently, voluntarily

{¶ entered guilty plea 94} to the indictment and has not challenged his plea on appeal. three-judge panel 2945.06, conducted an evidentiary hearing and, under R.C. after deliberat- ing, it found “unanimously that the State has produced evidence that convinces panel beyond reasonable doubt as to the guilt defendant’s as to each Because evidence specification.” of each count and each element

essential exist that probability no reasonable could overwhelming, guilt deficiencies, would have been proceeding the result for counsel’s but different. Strickland regarding his contention prejudice can Obermiller establish Nor argue for constitutionally failing mitigating ineffective

defense counsel voluntarily he waived the panel. acknowledges factors to the despite he the waiver of evidence. Yet mitigating presentation taken to at least opportunity have and should have mitigation, “counsel could presented.” had been already the evidence that highlight that some reviewed the evidence found panel independently But the testimony of the state’s presented through evidence had been mitigating addition, evidence sentencing opinion mitigating identifies witnesses. even if Accordingly, in its deliberations. took into consideration performed deficiently by could establish defense counsel unable to establish that but panel, he is presenting mitigating evidence deficiencies, have life there likelihood that would received reasonable of a presentation that even without the The record demonstrates sentence. through defense, presented mitigating considered mitigation the witnesses. reasons, of law. reject proposition all these Obermiller’s fourth For 97}

{¶

Prosecutorial misconduct 6, argues prosecutor’s law of No. proposition 98} {¶ under rights trial unfair in violation of rendered his cumulative misconduct Amendment to U.S. state See Fourteenth the federal and Constitutions. I, Constitution, 16. Constitution; Article Section Ohio misconduct, we determine must prosecutorial To evaluate a claim and, so, it if improper prejudicially whether challenged conduct was whether the Maxwell, 12, 139 Ohio St.3d v. rights. defendant’s substantial State affected the ¶ 243. 930, of the prosecutorial- The benchmark 9 N.E.3d “ trial, culpability not the ‘the fairness analysis misconduct ” 231, 2005-Ohio-1507, N.E.2d Brinkley, v. 105 Ohio St.3d State prosecutor.’ ¶ 219, 209, 940, 71 L.Ed.2d 135, 102 S.Ct. 959, Phillips, v. 455 U.S. quoting Smith (1982). evidence

Victim-impact elicited improperly First, prosecutor Obermiller contends 100} {¶ plain claim for error because review this victim-impact evidence. We v. Cunningham, See State 197, 2004-Ohio-7007, did not object. Supreme United States Court has described testimo- victim-impact inny relating case as to the capital personal “evidence characteristics of the victim of the crimes on the victim’s family.” Payne v. impact and the emotional Tennessee, (1991). 501 U.S. S.Ct. 115 L.Ed.2d 720 And we victim-impact testimony have “permitted capital cases when the testimony * * * overly or to be imposed.” penalty was emotional directed Hartman, 754 N.E.2d 1150 challenged testimony Obermiller describes the as improperly “painting the victims as kind giving taking advantage and Obermiller as of that kindness.” Obermiller also claims that this was evidence inadmissible and White, collateral, quoting State v. argues, and he 15 Ohio St.2d at “ ” 65, that it passion jury.’ inflame[d] Specifically, Obermiller contends that the state improper introduced victim-impact evidence from Flagg, granddaughter Candace of Candace Flagg’s testimony Schneider. was crucial establish the timeline of events leading discovery up by police. the bodies Flagg provided also victims, background information about the including personal details about their interests, property and she discussed Obermiller’s relationships various instance, family members. For Flagg testified that Candace Schneider had sent packages incarcerated, Obermiller care while he had allowed Obermiller to have to the access Schneiders’ campsite they where had a camper parked, and had allowed Obermiller reside with the upon Schneiders his release from prison even though Donald to it. opposed the panel “picked up then on this theme” because the panel when later recalled Obermiller’s former girlfriend, Gina Mikluscak, Muzic, and it Stacy called Obermiller’s former stepmother, stand, questions asked both of them led to testimony about Candace’s But good nature. the record not support does contention that Obermiller’s the panel improper considered victim-impact evi- in arriving First, dence at its decision. the usual presumption that the panel only Next, considered relevant applies here. the evidence was not “overly thus, emotional” and was not “directed it penalty,” and Hartman, permissible. 293, Third, 93 Ohio St.3d at 754 N.E.2d 1150. panel evidence, extent that the elicited some of this Obermiller cannot establish prosecutorial misconduct. We error, cannot that but say the outcome of clearly the trial would been have otherwise. we Accordingly, reject Obermiller’s argument improper that victim-impact testimony prejudiced the outcome of his case. testimony

Branam’s misconduct, argues that again Obermiller prosecutorial Alleging Natasha Branam’s during innuendo” in the record placed “prejudicial state To home. testimony images computer found on the Schneiders’ about context, that improper must show this “a defendant prejudice demonstrate trial would or that the outcome prejudicial remarks were so questions Collier, v. 8th Dist. they had not occurred.” State clearly have been otherwise (Oct. 2001), 1243925, 18, citing *5 No. 2001 WL Cuyahoga St.3d 630 N.E.2d 339 Campbell, 69 Ohio previously rejected plain-error For the same reasons Obermiller’s 106}

{¶ information, cannot establish challenge this we conclude Obermiller Branam’s prosecutor’s regarding statements this context. prejudice three-judge panel, presumed were to a “which testimony offered potential relevant, in its deliberations.” only competent consider admissible evidence Davis, Moreover, immediately before St.3d Ohio member testify being panel, Branam after recalled began disregard what isn’t what’s relevant and we’ll stated: “Let’s see specifically demonstrating relevant, in the record nothing consider what is.” There is possible Branam’s considered the statements about prosecutor’s or sentence. guilt his testimony regarding in its deliberations sum, prosecuto- failed to establish that In we conclude Obermiller trial, reject proposition and we phase capital rial misconduct infected either his of law No. 6. error

Cumulative trial was argues No. In of law proposition of those errors impact and that the cumulative error” “replete prejudicial fundamentally unfair. proceedings rendered the only error “when will be reversed for cumulative A conviction even of a fair trial in a trial defendant deprives

cumulative effect of errors individually does not instances of trial-court error each of the numerous though Powell, 233, 2012-Ohio- St.3d for reversal.” State v. Ohio constitute cause above, has proven not 223. As detañed Therefore, proceedings. the trial-court during occurred multiple errors No. 10. reject of law proposition and we apply, cumulative-error doctrine does Sentencing Issues

Settled issues six constitutional presents law No. proposition that the death- He also scheme. challenges capital-punishment to Ohio’s treaties. violate international law and statutes penalty previously squarely rejected We have considered and each of Obermil- Thompson, ler’s constitutional claims. See Ohio St.3d 2014-Ohio- 279-280. We have also held that death-penalty Ohio’s Thus, reject statutes do law or not violate international treaties. Id. proposi- tion of law 9.No. sentencing opinion

Errors law, In his second of proposition Obermiller contends circumstances, considered improper aggravating erroneously considered nonstat- utory in the aggravating mitigation phase, circumstances failed to meaning- fully mitigating consider evidence. improper aggravating

Consideration circumstances of sentencing its opinion, three-judge panel improperly weighed specification for murder on felony predicated rape that only was applicable Candace’s murder when it sentenced him Donald’s murder. sentencing opinion states: counts, merger

After of the this Court proceeded phase the second of this trial. Defendant pled guilty to the indictment and was convicted of three aggravating circumstances that alleged part were as Counts 1 and of I, namely:

1. That the aggravated part murder a course of conduct involving purposeful killing attempt of or to kill persons, two or more namely, 2929.04(A)(5). Donald and Candace Schneider. R.C.

2. That the Defendant Aggravated committed the Murders while he committing, commit, attempting or fleeing immediately after com- mitting or to commit attempting rape Candace Schneider. R.C. 2929.04(A)(7).

3. That the victims the Aggravated Murder were witnesses to an offense who were purposely killed to prevent testimony victim’s in any 2929.04(A)(8). criminal proceeding. R.C. added.) Thus,

(Emphasis Obermiller is correct that this part sentencing opinion all remaining identifies three specifications as both applicable murders. However, the record considered as a whole—in the panel’s particular announcement of its sentencing decision from the bench near the end of sentencing hearing and also entirety sentencing opinion clear —makes 2929.04(A)(7) did not apply the R.C. felony-murder specification Thus, incorrect murder. Obermiller is it Obermiller for Donald’s

when sentenced aggravating of improper weighing that court’s the he contends “[t]he when murder aggravated in favor death for the of the scale tipped circumstances Donald Schneider.” case, trial in may “whatever errors the court have committed any 116}

{¶ will any mitigating the factors” be against weighing aggravating circumstance[s] in later this independent reweighing” this court’s “careful conducted remedied Lott, (1990), 293 citing v. St.3d 555 N.E.2d opinion. State Ohio (1990). 738, 748, 110 S.Ct. 108 L.Ed.2d 725 Mississippi, v. U.S. Clemons circumstances nonstatutory aggravating Consideration of panel improperly nonstatutory that the considered its examination Gina Mikluscak. developed through circumstances aggravating in case transcript replete contends that this is Specifically, “[t]he he testify improper judge panel pressing instances the three witnesses that the nonstatutory circumstances.” Obermiller reasons because aggravating matters, “it these must be concluded questioned members Mikluscak about panel it in their they was and considered they believed this information relevant sentencing decision.” many a court’s her Mikluscak as witness asked panel recalled mental health. Defense about her view of Obermiller’s

questions, including objection ultimately objected, the overruled the elicited panel counsel but health. mental testimony Mikluscak’s observations Obermiller’s regarding members, Mikluscak also detailed panel from the Responding questions to other her, anger, he fits of explained prone that how Obermiller had beaten (as Schneider, Donald who opposed good physical shape stated man), various matters. regarding and testified other large powerful was not or the Mikluscak panel questioned that because Obermiller’s' assertion 119} {¶ issues, upon aggravating panel nonstatutory these must have relied about only aggrava- opinion reveals sentencing circumstances is flawed. The left after specifications relied were the circumstances on which ting (3) (1) (2) murder, conduct, during the witness murder course of merger: aggra- correctly a court identifies the And rape “[w]hen of Candace Schneider. the court sentencing presume we will opinion, its vating circumstances circum- nonstatutory aggravating on not only relied on those circumstances (1998), Clemons, citing 696 N.E.2d 1009 v. 82 Ohio St.3d stances.” State Hill, 653 N.E.2d Davis, St.3d on State v. Ohio reliance sentencing opinion (1988), Unlike argument misplaced. support expressly listed five case, opinion Davis sentencing in this the trial court’s considered, circumstances the court four of which were aggravating nonstat- sentence, utory. Id. at We vacated Davis’s death that our holding indepen- if could not cure the error “because cannot reweighing dent know result of weighing process by three-judge would have been different had the impermissible aggravating present.” circumstances been Id. Here, contrast, three-judge panel identified only applicable

statutory in its aggravating sentencing opinion circumstances and listed no Thus, improper nonstatutory aggravating circumstances. Obermiller has not rebutted presumption only upon the court relied aggravating it circumstances identified.

Failure consider mitigating evidence Obermiller also contends that the panel failed meaningfully consider mitigating evidence. Specifically, complains that the panel failed to childhood, fully “transitory the physical consider nature” of his his age, the Donald, him upon by emotional abuse inflicted his mental history of illness. present his right mitigating waived evidence after he was found to do competent Regardless, panel so.3 the independently determined that mitigating presented evidence had during plea been the stated hearing, by as one the panel of members: McDonnell, your

Mr. does client throughout understand that the course of * * * trial, phase the first testimony [have [and] shown] * * '* that are there substantial elements here that a substantial mitiga- tion presented? defense could be Mitigating factors could presented, be know, you mother, of starting with the murder his the disruptive childhood had, he the of passing custody another, his from one situation to the father, of incarceration his the stepmother, incarceration of his the situa- * * * tion it where was testified to by stepmother his that there was potentially a grandfather situation where kept his him in an attic and withheld food and water for a of in period adolescence, time his early * * * youth that he was by incarcerated services when about 15 * * * old, years he, there, while also committed another felonious panel commonly prior held what is hearing” accepting called an “Ashworth Ashworth, mitigation. (1999), waiver of See State paragraphs 706 N.E.2d 1231 syllabus (detailing one procedures and two of the the to be followed trial court to determine valid). mitigation capital whether a appeal, defendant’s waiver of case is this Obermiller has challenged mitigation, his waiver of but his waiver is discussed further detail later in this opinion independent in connection with our sentence evaluation. 27. And assault, continuously through from 15 he was incarcerated * * * are, know, factors that are substan- you mitigation

these kernels effectively. in similar cases probably tial and that have been used factors the sentencing specifies mitigating Additionally, opinion instance, identified testimony panel from and evidence. For gleaned remorse, guilt his admission of mitigating as evidence Obermiller’s childhood, indictment, guidance, his lack of transitory disruptive parental his two, history crime of criminal age loss of his to violent at the his mother him when teenage years, Donald’s cruel treatment of beginning conduct his wife, Thus, child, history. and his educational the suicide assertion, meaningfully find that did contrary to Obermiller’s evidence, hands. including abuse he suffered at Donald’s mitigating consider sentencing opinion specifically does not Obermiller is correct “[wjhile But a sentencing or illness as factors. age mitigating mention his mental factor it need not discuss each mitigation, court must consider all evidence (1995), 656 N.E.2d 643 individually.” Phillips, State v. 308, 314-315, 111 S.Ct. 112 L.Ed.2d Parker v. 498 U.S. citing Dugger, factor its mitigating failure to discuss each And trial court’s rise automatic factors sentencing opinion give does not to an inference Roberts, v. opinion from the were not considered. State absent ¶ 230, 2013-Ohio-4580, N.E.2d 998 however, warranted, when the an We have held that such inference Id. at

sentencing mitigating presented. to mention the sole factor opinion failed (Roberts’s specifically matter that was only “was the relevant 55-56 allocution mention the and the court’s failure to mitigation,” before the trial court as placed court failed in the inference that the sentencing opinion the warranted allocution sic]). here, failure despite But Obermiller’s [emphasis to consider the allocution evidence, multiple sentencing opinion discussed any the present mitigating supported determined were panel independently factors that the mitigating to discuss panel’s the failure we conclude Accordingly, the evidence. not error. sentencing opinion age mental health the Obermiller’s and “ erred, ‘pro- independent weighing the our Even assuming of the death arbitrary imposition safeguard against the procedural vides ” (1999), quoting St.3d N.E.2d 484 Bey, State v. 85 Ohio penalty.’ (1988), of two paragraph Holloway, St.3d State v. 38 Ohio cure can Thus, reweighing and our sentence evaluation syllabus. “independent at sentencing Bey death-penalty decisions.” of errors in previous effect McGuire, 390, 395, (1997), v. St.3d N.E.2d 1112 citing State 80 Ohio and Hill, N.E.2d 1068 reasons, of foregoing reject proposition For the law No. 2. 128} {¶ Independent Sentence Evaluation law No. of proposition of the imposition inappropriate

the death sentences was unreliable and because the aggravating circumstances do not factors. This claim outweigh mitigating dovetails obligation independently our review Obermiller’s appropri- death sentences for 2929.05(A). proportionality. ateness and R.C. independent To conduct the death review of a sentence under R.C. 130}

{¶ (1) 2929.05(A), we must supports determine whether the evidence panel’s (2) circumstances, finding aggravating the aggravating outweigh circumstances (3) factors, mitigating proportionate death sentence is those affirmed similar cases.

Aggravating circumstances Obermiller pleaded guilty to and was convicted of all charges 131} {¶ However, specifications request, prior indictment. the state’s the panel sentencing merged well capital several offenses as as some of the specifications. After two merger, aggravating circumstances regarding remained (1) both victims: Obermiller murdered both victims as “part of a course conduct involving purposeful killing attempt of or to kill two or more (2) persons,” 2929.04(A)(5), R.C. both victims were witnesses “to an offense purposely killed in retaliation for testimony [were] criminal any [their] 2929.04(A)(8). proceeding,” R.C. And a aggravating third applied circumstance to Candace’s murder: Obermiller murdered “committing, her while attempting * * * commit, immediately or fleeing after or committing attempting to commit 2929.04(A)(7). rape.” R.C. The evidence adduced during hearing supports the panel’s finding as to both guilt aggravating circumstances related Donald murder of

Schneider, and supports the evidence panel’s finding guilt three as to all related murder of Candace Schneider. 2929.OJp(A)(5) specification

Course-of-conduct —R.C. The murders of Donald and Candace Schneider were purposeful 133} {¶ part single continuing course conduct. Obermiller’s attacks on Donald and Candace were in linked time and location. v. Sapp, See State 105 ¶ (factors time, syllabus, such as location, scheme, a common a or common thread can psychological establish the conduct). link factual necessary prove to course of Obermiller murdered that both bedrooms, testimony established home their victims their 11, 2010. August near murdered on or likely were most victims 2929.0i(A)(8) specification Witness-murder —R.C. and Can murdered Donald that Obermiller evidence established The 134}

{¶ from to them prevent of the coins and his theft reporting in retaliation dace proceeding. him in a future testifying against or complaint a criminal filing have coins and would he stole the control when postrelease was on Obermiller 2929.04(A)(8)specification The if convicted of theft. R.C. prison a return to faced against Obermil- charges not filed formal theft the state had though even applies Osie, 2014-Ohio- deaths. State to the Schneiders’ prior ler purpose committed for the murder “[A] 191-193. proceeding criminal potential in a future or testimony the victim’s preventing ¶at 197. reach.” Id. well within the statute’s rare stole suspected that he Obermiller police Donald had told in his Indeed, possession. had the coins

coins from his home. that on four testified Jewelry & Cleveland Eagle of American Coin owner murders, the time of the around early August occasions in separate to coins, belonged said had which Obermiller came to his store sell grandfather. a deceased inference a reasonable supports also The evidence 136}

{¶ report, Obermiller’s or intended reported, Donald and Candace knew that August on Phone records established police. in the theft to the involvement a.m., 20 minutes before approximately at 11:23 Donald called Obermiller the evidence Additionally, coins. the stolen police report called Donald came to the home officer police when present that Candace demonstrates had that Donald theft, therefore, fully aware she investigate in the theft. involvement suspected reported 2929.04(A)(8)wit- R.C. supports the sufficient evidence Accordingly, victims. as to both specification ness-murder 2929.0Jp(A)(7) specification

Felony-murder —R.C. prove Obermil- sufficient evidence presented the state Finally, commit, or “committing, attempting while he was murdered Candace ler R.C. rape. to commit” attempting or committing after immediately fleeing on the material 2929.04(A)(7). of seminal presence revealed the testing DNA DNA that matched Obermiller’s autopsy Candace’s during swabs taken vaginal found cells epithelial as the source of not excluded And Obermiller was profile. Thus, supports sufficient found at the scene. two used condoms 2929.04(A)(7) murder. for Candace’s specification the R.C.

Mitigating factors 2929.04(B), murder, a duty weigh We have under R.C. for each {¶ 139} aggravating against aforementioned circumstances the “nature and circumstances offense,” character, “history, background,” and the six 2929.04(B)(1) (6). specific mitigating factors enumerated R.C. through We “[a]ny must also consider other factors that are relevant to the issue of whether 2929.04(B)(7), the offender should to death” under be sentenced R.C. the “catch- all” mitigation provision. mitigation

Waiver of Immediately after the announced its finding verdict indictment, guilty every count one of his defense attorneys stated: having “After discussions with Mr. Obermiller over the course of our representa- tion, time, it’s mitigation.” his intent offer no At that Obermiller also waived opportunity request presentence investigation and a court report psychiatric evaluation. initiative, On its own the panel ordered Obermiller to be evaluated Cuyahoga County Psychiatric Court for Clinic assessment of his competency mitigation.

to waive The court clinic psychiatric issued a report determining Obermiller was competent mitigation, waive and the parties stipulated to the findings and conclusions in psychiatric report provided the court. particular, the stated that report “although Major Mr. Obermiller has Depressive Disorder, Remission, in Partial he understands the choice between life and death capacity and has the to knowingly intelligently pursue mitiga- decide not to Accordingly, tion.” panel conducted waiver colloquy with Obermiller and reasonably concluded that his mitigation decision to waive knowing, intelli- Ashworth, gent, voluntary. State v. 706 N.E.2d 1231 Evidence mitigation in the record above, As noted presented no mitigation, and he also declined to an However, make unsworn statement. irrespective of Obermiller’s 2929.05(A) decision to forgo presentation evidence, of mitigating R.C. requires “ us to ‘review and independently weigh all and other evidence facts disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the guilty offender was found ” committing sic.) outweigh mitigating factors in the (Emphasis case.’ Vrabel, 184, 99 Ohio St.3d quoting R.C. 2929.05(A). Obermiller was on February born 1982. He was two and a half

years father, old when his mother was murdered. His Denny Lykins, testified murdered, unfit to care for Obermil- he was mother was

that when Obermiller’s five approximately thereafter, prison was sentenced Lykins ler. Soon lived with to live with the Schneiders. was sent years, and Obermiller old. years 13 or approximately until he was them a first and also was Muzic, stepmother who was Obermiller’s Stacy {¶ 144} while he mother, that Donald abused Obermiller testified cousin Obermiller’s Muzic in Recalling particular, one occasion with the Schneiders. living when he was 3 and Denny Little one time “I on the with phone testified: it.” went on he answered She phone in with the because Donald hit him the head * * * him me how life, telling I Denny’s remember “[t]hroughout explain in and not attic, him urinate cans him in the made upstairs locked grandfather his things did these testified that Donald days.” Muzic couple fed for get Furthermore, had told Obermiller and brother. Obermiller Obermiller’s both emotional physical Donald’s and informed Candace about that he had Muzic addition, witnesses multiple him. In not believed that Candace had abuse but and about of Obermiller dislike and distrust general about Donald’s testified continually grandson. her supported that Candace unhappiness Donald’s ongoing and residence Obermiller left Schneider early teenage years, In his {¶ 145} time. But Muzic, not married at the yet who were his father and moved with testimo- by the witnesses’ months, explained that were due to reasons within great-aunt who were Obermiller’s parents, in with Muzic’s moved ny, Obermiller for less and great-aunt great-uncle with his lived Obermiller great-uncle. year. than a and was sen- robbery aggravated committed At Obermiller age (“DYS”) for of Youth Services Department custody of the Ohio

tenced to the acts that led committed facility, at a DYS Obermiller he was years. three While sentenced assault, and he was escape, kidnapping, to convictions for felonious and was released years incarcerated for nine He was as an adult. prison mitigation, to waive competency his report regarding According Juvenile guard to a Mohican incarceration, “was married Obermiller during his committed suicide.” until 2002 when she March 2001 Facility from Correctional the testimo- introduced character was Evidence about known Obermiller Mikluscak has Mikluscak. Gina ny girlfriend, of his former and became same school at the grade together in the first they were since explained in 2009. She from prison he was released with him when reacquainted medication daily he was on prison, from was released that when Obermiller Miklus- taking. medication he was specific know the did not but she depression, taking stopped after he swings mood had cak stated short- irritable and more became medication, generally said that and she July relationship' their pair ended that occurred. after tempered murders, with shortly although before the Mikluscak continued associate the Schneiders. evaluation, competency psychiatrists connection with the with the Disorder, “Major court’s clinic psychiatric diagnosed Depressive Recurrent, In Partial report “having Remission.” Their describes Obermiller as the lowest mood of his life” and of worthlessness” after his arrest for “feelings quoted report, the Schneiders’ murders. As Obermiller told the psychia- through trists that after his arrest in he went times when what he had done “ entails, ‘really and his current hit it much everything situation me else how * * * * * * worthless, I my family};] myself[;] it hurt was hateful of I felt like * * * * * * did};] maggot};] I had a lot of what I nightmares about didn’t eat ” much, pounds.’ lost about 20 evaluation, As described in the competency Obermiller felt remorse for murdering. grandparents. His remorse is other supported by evidence as well; his father testified that crying telephone Obermiller was on the and said Schneiders, sorry he was when he admitted to killing and Mikluscak also described crying upset Obermiller as and when he first told her that he had gotten into some trouble for which very sorry. he was

Weight mitigating factors argues Obermiller that this court should assign weight following {¶ 150} (1) (2) mitigating 2929.04(B)(4), factors: his history background, age, and his R.C. (3) his decision to plead guilty and his remorse for Donald and Candace’s 2929.04(B)(7). murders, R.C. history Obermiller’s and background are entitled to some weight above,

mitigation. explained As Obermiller’s mother was murdered when he was old, two a half years and his father was unfit to care for him and was soon unstable, thereafter imprisoned. Obermiller’s childhood was and for most of youth, Obermiller’s parental he had no care or positive parental role models. spent majority of his in a youth home where he apparent ly Donald, abused and he spent majority of his teenage young years 27, adult in prison. He was released at the age year and within one Therefore, committed the murders at issue this case. we assign some mitigating weight the difficult and unstable circumstances of Obermiller’s See, Mammone, 467, 2014-Ohio-1942, childhood. e.g., 139 Ohio St.3d 13 N.E.3d ¶ (difficult 1051, at factor); Perez, 237 mitigating childhood as v. 124 State Ohio ¶ 122, 2009-Ohio-6179, (same). 104, However, St.3d 920 N.E.2d 244 we have “ given ‘seldom decisive weight to’ defendant’s unstable or troubled childhood.” ¶ 245, Hale, Id. at quoting 118, 2008-Ohio-3426, State v. 119 Ohio St.3d 892 864, N.E.2d

207 weight accorded age that his should be argument Obermiller’s 2929.04(B)(4) at the years was 28 old merit. He is without under R.C. mitigation and, youth fraught were his childhood and in this case while time of the offenses “ abuse, age “an when had reached physical ‘[h]e turmoil and some with emotional * * * life choices as intervened,” clearly “had made have maturity [he] could ’ ” ¶ 245, State quoting Perez at committing [these] murder[s].” an adult before (2002), v. 48, 53, quoting 334 State v. 95 Ohio St.3d Campbell, (1992) C.J., 588, dissenting). (Moyer, 605 884 St.3d Murphy, Ohio See, v. age. e.g., State Thus, weight no to Obermiller’s assign mitigating 2929.04(B)(4) (1999) (R.C. Coleman, 707 N.E.2d 476 85 Ohio St.3d offense); time of the was 27 factor when defendant mitigating inapplicable (1995) (same). 435, 441, 650 N.E.2d 878 Fautenberry, State v. incarceration, ages from long-term his than his age” younger psychological his “emotional and through renders mitigation purposes. into account for that this should be taken physical age and no evidence this and he offered authority argument, no Obermiller has cited that his argument support case law does not mitigation. Our 2929.04(B)(4). See State under R.C. assigned weight should be age psychological (1985), vacated on other N.E.2d 984 Rogers, v. Ohio, L.Ed.2d 452 106 S.Ct. v. U.S. Rogers sub nom. grounds, 554, 576, 605 N.E.2d 884 (1985); St.3d Murphy, 65 Ohio incarcera- long-term Moreover, no of the effect presented as to speculate required and the physical age, a person’s tion on age. psychological weight give significant court should that this Finally, Obermiller {¶ 155} factors fall crimes. These remorse for his guilty to and his plead to his decision reasons, 2929.04(B)(7). But, following for the of R.C. provision the catchall under weight mitigation. amount of only a modest they merit that testified Obermiller girlfriend and former both father Obermiller’s {¶ 156} father, to his Obermil- According the murders. committing after distraught and that he commit the murders not “mean” to ler stated that he did days a few that Mikluscak testified being to arrested. extremely prior “scared” into gotten her that he had murders, when he first told Obermiller cried after the heart, sorry, very he was everybody’s that he “said how he broke trouble and includes evaluation competency the court-ordered Finally, felt just that he bad.” He forgiveness. he deserves “does not believe that Obermiller the observation cared for ‘only’person who who was the grandmother, his ‘betrayed’ said that he with no to the indictment guilty plea him.” ultimately entered And Obermiller offer from the state. plea But weighing against existence remorse was also

{¶ 157} instance, county For fled the after he presented. Obermiller committed the offenses, him, attempted persuade Mikluscak to flee with and fled on foot when addition, officers tried to arrest him. help enlisted the of his stepmother former to rent the vehicle that he used to leave the area. He also gas throughout turned the Schneiders’ stove on and left lit candles the house found, in an apparent attempt ignite before the bodies were the house to cover Moreover, the murders. up competency the court-ordered evaluation stated that “did not express killing step-grandfather.” remorse for guilty plea weight, deserves some “since guilty pleas are Ashworth, traditionally accorded substantial weight imposing sentence.” 11(C)(3). Ohio St.3d at citing Crim.R. And his “willingness actions, to step responsibility forward and take for his without any offer of state, leniency by person indicates a who is remorseful for the crimes he has committed.” Ashworth 72. Further, was, fact, evidence showed remorseful Thus,

for the rape grandmother. murder of his at least respect with Candace, murder of we afford modest weight to Obermiller’s remorse and acceptance However, of his responsibility for the murder. respect murder, give only Donald’s minimal weight Obermiller’s decision to plead guilty. Additional mitigating evidence was presented implicates also R.C.

2929.04(B)(7). Rimar, Specifically, Michael the owner of a roofing company, testified he hired Obermiller as a for roofing jobs laborer and as part clean-up Rimar, crew. According Obermiller was a reliable worker who directions, more, followed always wanted to learn sought to advance his roofing knowledge. We thus give weight some to Obermiller’s employment Trimble, record and his character as a engaged reliable and worker. 297, 2009-Ohio-2961, Sentence evaluation above, As described although Obermiller waived his right present evidence,

mitigating mitigating presented evidence was throughout plea hearing. And most of the mitigating evidence that we have discussed above is to at not, however, entitled least some weight. We are convinced Obermil- sufficiently ler’s actions are mitigated by the nature and circumstances of the offense, childhood, his difficult arrest, his remorse and cooperation after his and the other factors discussed to render his death sentences inappropriate. murder, respect With to Donald’s the course-of-conduct and witness- specifications

murder are compelling, they outweigh and the mitigating evidence

209 2014-Ohio-1942, 467, Mammone, 139 Ohio St.3d record. See from the gleaned ¶ murders of (death for aggravated 1051, penalties appropriate at Fry, v. State specifications); and other with course-of-conduct three victims ¶ (death 1239, appropri 2010-Ohio-1017, penalty 163, 926 N.E.2d Osie, 140 Ohio specification); with witness-murder murder aggravated ate for ¶ (death 588, appropriate 131, 2014-Ohio-2966, penalty at 270 16 N.E.3d St.3d murder). witness robbery-murder and circumstances aggravating the two murder is above, to Candace’s mitigation applicable As noted that apply specifications Donald’s. But the three applicable than that stronger conduct, murder, felony murder course of murder —witness to Candace’s factors mitigating far stronger outweigh also rape on predicated —are the unconditional Obermiller, acknowledged although subsequently present. him, before he raped Candace upon had bestowed grandmother love 2003-Ohio-4164, Williams, 439, v. her to death. See State strangled ¶ circum aggravating of death for three (imposition penalty 793 N.E.2d in her own home stances, elderly victim rape the defendant’s including light mitigating in of modest appropriate murdering by strangulation, her prior evidence). circumstances reasons, aggravating these we conclude For doubt. beyond a reasonable factors for each murder mitigating

outweigh for each murder. are appropriate that the death sentences Accordingly, we hold Proportionality in this case. to both murders is also as penalty proportionate The death the witness- ‘in cases where death sentences many “approved have times

We specifica in with one other alone or combination present specification murder ” Osie, 2014- St.3d Ohio tion, mitigation existed.’ even when substantial ¶ Turner, 105 Ohio St.3d Ohio-2966, quoting 16 N.E.3d

Conclusion death and the reasons, affirm the convictions foregoing For the

sentences. affirmed.

Judgment French, JJ., Lanzinger, Kennedy, concur. O’Donnell, an opinion. with J., part, and dissents part concurs Pfeifer, joined part an opinion part, dissents O’Neill, J., part concurs in Pfeifer, J. Pfeifer, J., concurring part dissenting part. in in in convictions. There is Denny I concur the affirmance of that beyond evidence to conclude a reasonable doubt he committed the ample I from the affirmance of guilty. heinous crimes of which he was found dissent penalty unacceptable of the death based on the absence imposition evidence, separate opinion and I with Justice O’Neill’s mitigation agree mitigation that it of the evidence. inadequacy extent details O’Neill, J., concurring part dissenting part. in in I from of the of death imposed must dissent the affirmance sentences {¶ 168} majority in this case. I concur with the the convictions. affirming Ohio, a I am justice Supreme being As Court of asked to stand {¶ 169} with the other members of this court at the head of the line of 11 million Ohioans “off of a a say with his head.” This court’s review case which sentence of imposed supposed step logical statutory death has been is to be the last courts, juries, justices in which then trial process and then the of this court independently weigh truly against bad facts of the crime the evidence that excuses or explains the crime. And there are certain external limits on process. example, mentally impaired For we do not execute We do not. people. That is a a society, guidance decision we as from the United States Court, Supreme have made. And to a case a clear mental parallel involving us, impairment implemented with the case before that decision is not through license of forgiveness permission we must ask for the defendant’s to exercise. That decision is a owned 11 million right by Ohioans. barbaric, My backward, ineffective, belief that capital punishment is

outrageously expensive, surprise anyone. and unconstitutional is no See State 1437, 2013-Ohio-164, Wogenstahl, (O’Neill, J., dissenting). Capital punishment purpose serves no other than vengeance. However, the law of Ohio is such that the people willing are to execute some murder, persons who commit but not all of them. to properly jobs, order do our the members of this court must

consider the factors in mitigating capital each case. This consideration is a minimum statutory requirement borne this court. Let me be clear here. The statutory right mitigation hearing unconditionally is right belonging every If, here, defendant with a charged capital offense. as the defendant wants equivalent mouth, to do the in the courtroom sitting tape with duct over his right. Surely, his choice and his we cannot force the defendant’s cooperation. However, absolute, right unconditional to a mitigation hearing also convinced,

belongs to the million Ohioans who need to beyond be a reasonable doubt, that they right have made the decision in of a terminating the life fellow citizen. It people’s right process. is the to due and waives a capital to a offense pleads guilty a defendant When develop an affirmative duty the trial court has

mitigation hearing, circum- aggravating weighing to aid any process manner available This is the law of Ohio. factors of case. That against mitigating stances three-judge from the process as a matter of fairness and due duty flows basic witnesses, the accused determine whether statutory duty “examine panel’s offense, pronounce or other and sentence aggravated any of murder guilty is aggravated to murder. pleads guilty defendant accordingly” capital whenever unfair have fundamentally and to inherently illogical R.C. It would be 2945.06. prove guilt aggravating to and and call witnesses three-judge panel the state the circumstances, of crucial panel insufficiently the informed details only to leave statutorily the duty weigh with the mandated adequately comply and unable as mitigating factors are discovered mitigating potential factors involved. When and proving guilt the of purpose from evidence offered for afterthought mere in circumstances, the balance surprise weighs it can little that aggravating be Twenty-three perfect example. case is a capital punishment. favor of This the testified, impression was left with clear three-judge panel and the witnesses that case was presented. could have been When strong mitigation that case one conclusion: the only not the could come consciously presented, aggravating not the outweigh not did mitigating presented evidence was proven present. that were be circumstances a right court a need—and three-judge the this has panel, Much like —to being At risk of truth, truth, nothing the truth. the the whole and but

hear the here, alleged, it is on salacious, who a victim overly the was step-grandfather attic an an early as adolescent more than one occasion locked this defendant who the violent child By age him of defendant food. deprived of custody Department in the the Ohio his while of continued felonious behavior early years of his teen and his then the remainder spent Youth He Services. is And the prison. step-grandfather now up age behind bars adulthood This all when dead, beaten, happened and killed. raped, his has been wife It is prison. his release from year one after age roughly the defendant scenario. imagine hard to a more horrific authorize the execution majority’s willingness the absolutely reject I here. happened of what defendant, inadequate on evidence which is based this workers, the neighbors, the the social bringing here cries out for record the court officers, help who could

teachers, any persons other probation to do that permission in this case. The defendant’s happened what understand duty, Supreme its we at perform fails to necessary. If the trial court not -11 we, people the million can duty. cannot our How simply perform Court if we doubt, justice has done been Ohio, convinced, beyond a reasonable be to end someone’s life? before we decide story do not know the whole case, In the know present that the defendant was in an attic locked food, as a can young boy deprived speculate and we rightly type. treatment of that many endured other We do have details as to the abuse, circumstances or extent of this because information is not included in We do know that his guardians, record. ostensible the two who should people responsible have been to it that a child an seeing was not locked in attic water, without food and are as a Supreme dead. Before we Court decide on executed, behalf of 11 million Ohioans whether defendant should be wouldn’t it be to know the extent of that important abuse and the effect that abuse had on abuser, the defendant when he to take life of alleged decided his his step- grandfather, person abuse, and the who did not allegedly prevent grandmother? John from Judge Sutula on three-judge stated record: McDonnell, Mr. does your client that throughout understand the course of * * * phase trial,

the first testimony [and] [has shown] * * * that there are substantial elements that a here substantial mitiga- presented? tion defense could be Mitigating could presented, factors be know, you starting mother, murder of his disruptive childhood had, passing another, of custody his from one situation to father, incarceration his the incarceration of stepmother, his the situa- * * * tion where it was testified his stepmother there was potentially a grandfather situation where his him in kept an attic and withheld period food and water for a adolescence, time in his early * ** that he by youth was incarcerated services when he about * * * old, he, years there, while also committed another felonious assault, that he was incarcerated continuously from 15 through And * * * are, know, you these mitigation kernels factors that are substan- tial and that have been used probably similar cases effectively. Whether the defendant chooses to participate or not defense However, his right. this court an has independent duty weigh mitigating factors regardless of the defendant’s participation that process. Supreme As justices, Court being sign are asked to death warrant for this defendant. This is to without all impossible having do of the pertinent disposal. facts at our Due process demands no less. I dissent respectfully from the affirmance of the death sentences. J.,

Pfeifer, concurs the foregoing opinion to the extent that it details inadequacy the mitigation evidence. Attorney, and Richard S. Walsh, Prosecuting County Summit Bevan

Sherri for attorneys, appel- prosecuting Attorney, special Kasay, Prosecuting Assistant lee. Sandford, Defender, Kathryn Supervisor, L. Public

Timothy Ohio Young, Welch, P. Assistant Division, L. Porter Shawn and Randall Penalty Death Defenders, appellant. Public et al. ex rel.

The State Maddox Heights Village et al. of Lincoln 2016.) (No. July 2016 Decided 2014-1267 Submitted March Per Curiam. R. Maddox by relator Steve action in mandamus original This is an “Maddox”) against respondents, (collectively, other named relators

eight “the (collectively, officials village’s Heights Lincoln and several village of work currently who classes people that several village”). alleges The complaint variety employee provided have not village for the been for and have worked and requested action be certified asked that class them. Maddox benefits owed benefits. the withheld directing village provide writ complaint. second amended an writ allowed alternative granted We joint filed a 2015-Ohio-554, parties 1078. The 25 N.E.3d 141 Ohio St.3d 1405, 2015- mediation, granted. which was referral to motion for docket, the regular later returned to Ohio-1097, 536. The case was joint filed a parties

Case Details

Case Name: State v. Obermiller (Slip Opinion)

Court Name: Ohio Supreme Court

Date Published: Apr 20, 2016

Citation: 2016 WL 1592765

Docket Number: 2011-0857

Court Abbreviation: Ohio