*1
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State
v. Whitaker
, Slip Opinion No.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
S LIP O PINION N O . 2022-O HIO -2840
T HE TATE OF , A PPELLEE ,
v
. W HITAKER , A PPELLANT . [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as
State v. Whitaker
, Slip Opinion No.
permanent or temporary dwelling is not an occupied structure for purposes of conviction of aggravated burglary—R.C. 2911.11—R.C. 2909.01(C)(1)—Aggravated-burglary conviction and finding of guilt on count of felony murder during an aggravated burglary vacated for lack of sufficient evidence—Judgment on death-penalty specifications for felony murder predicated on aggravated burglary reversed and specification dismissed—Consideration of aggravated burglary as an aggravating circumstance during mitigation phase constituted harmless error because other death-penalty specifications remained valid and other aggravating circumstances outweighed mitigating factors beyond a reasonable doubt— Judgment affirmed in part, vacated in part, and reversed in part and cause remanded—Death sentence affirmed.
(No. 2019-1482—Submitted October 5, 2021—Decided August 18, 2022.) *2 A PPEAL from the Court of Common Pleas of Cuyahoga County, No. CR-17-614021.
_________________ F ISCHER , J. This is an appeal of right from an aggravated-murder conviction and
death sentence. A Cuyahoga County jury found appellant, Christopher Whitaker, guilty of the aggravated murder of 14-year-old A.D. and of the three accompanying death-penalty specifications: (1) committing the aggravated murder during an aggravated rape, (2) committing the aggravated murder during an aggravated burglary, and (3) committing the aggravated murder during a kidnapping. The jury recommended a sentence of death and the trial court sentenced Whitaker accordingly. We vacate Whitaker’s conviction for aggravated burglary and the finding of guilt on Count 3 (felony murder during an aggravated burglary), and we dismiss the death-penalty specifications predicated on aggravated burglary. We affirm Whitaker’s remaining convictions and his death sentence.
I. TRIAL EVIDENCE A. A.D. fails to arrive at school In January 2017, 14-year-old A.D. was a seventh-grade student at E Prep School, located at East 93d Street and Union Avenue in Cleveland. To get to school, A.D. took a public bus from home, changed buses at Kinsman Road and East 93d Street, and took a second bus to school. On some mornings, A.D.’s friend J.R. met her on East 93d Street and made sure she got on the second bus. On January 26, A.D. boarded the bus near her home to travel to school. J.R. was late and did not see A.D. that morning. Donnesha Cooper, A.D.’s mother, called the school when A.D. failed
to arrive home after school. A school official told Cooper that A.D. had never arrived at school that day. Cooper then called the police and reported A.D. missing. *3 School officials scoured the area looking for A.D. The next day, the area was canvassed and fliers were distributed with her picture.
B. A.D.’s disappearance
{¶ 5} On January 26, Kenneth Chambers was at the bus stop on 93d Street and Harris Avenue. At approximately 6:55 a.m., Chambers saw an unknown man grab and take A.D. Chambers did not call the police, because he was unsure whether they were related. FBI agents obtained surveillance footage from Regional Transit
Authority (“RTA”) buses and from other locations, and FBI analysts developed a timeline for A.D.’s disappearance on the morning of January 26. The video showed that A.D. got off the bus at East 93d Street and Kinsman Road that morning. About 6:50 a.m., A.D. boarded a southbound bus on East 93d Street that was headed toward her school. A.D. requested a stop shortly thereafter and got off near Bessemer Avenue. A.D. walked north on 93d Street at the same time that a man was walking south. A.D. crossed the street, and the man turned and started walking north. At 7:13 a.m., A.D. neared the man but stepped away from him. An analyst testified that at 7:19 a.m., two people, believed to be the man and A.D., walked across a vacant lot toward Fuller Avenue. A Cleveland police detective, who had also looked at video from the
surrounding area, testified that the same man had walked around East 93d Street and Fuller Avenue earlier that morning, at 4:26, 5:01, and 6:30 a.m. The man on that video was later identified as Whitaker.
C. Police find A.D.’s body in a vacant house On January 29, police found A.D.’s body inside a vacant house on
Fuller Avenue. Upon entering the house, police found a trail of blood leading from
the dining room into an adjoining bedroom. Officers kicked open the bedroom door and found A.D.’s nude body on the floor. They found a drill, box cutter, *4 screwdriver, hammer, and a nut driver at the start of the bloody trail in the dining room. Several of the tools had bloodstains on them. Bloody boot prints were found in the dining room and living room and on the bedroom floor. Police recovered a torn sweater, a training bra, a shoe, and a torn
condom wrapper in the living room. However, A.D.’s backpack, earbuds, winter coat, and other clothing were never recovered. No empty alcohol containers or drug paraphernalia were found inside the house.
D. Whitaker is seen after the murder, and he tries to leave the area During their investigation, police learned that around 10:00 a.m. on January 26, the day that A.D. disappeared, Whitaker went to Golgatha Missionary Baptist Church and asked the assistant pastor, David Brewton, whether he needed help unloading the truck for the church’s food pantry. Whitaker worked for two hours. Brewton testified that while they were unloading the truck, Whitaker said, “I’m not working and * * * I’m down on my luck and * * * I had some problems with my woman.” But Brewton stated that he did not notice anything unusual about Whitaker’s appearance and that nothing indicated that Whitaker was intoxicated or on drugs. An acquaintance of Whitaker’s, Alton Sanders, testified that on
January 28, Whitaker told Sanders, “I got to get out of here. * * * I pay somebody $20 to take me out of here.” Sanders replied, “I don’t have a car.”
E. Whitaker is arrested and questioning begins On February 2, 2017, police arrested Whitaker after his DNA was
identified from samples collected from A.D. After Whitaker waived his rights
under
Miranda v. Arizona
,
1. Whitaker’s first interview a. Initial denials Whitaker told the detectives that he was on Fuller Avenue maybe on
the previous Monday or Tuesday (January 23 or 24) to drywall a house. He stated that he spent Wednesday night on 84th Street and woke up between 10:30 and 11:00 a.m. on Thursday (the day A.D. was killed). Whitaker said that he did not know A.D. or what had happened to
her. He claimed that he first heard about the incident when he saw a flier being passed out about her disappearance. He recognized the house on Fuller Avenue where A.D.’s body was found because he and some of his friends had taken the water heater, furnace, and scrap metal from the basement. Whitaker stated initially that he had never been in any other part of the house.
b. Confronted with DNA evidence Police then informed Whitaker that his DNA was found upstairs in
the house. Whitaker replied that he had gone into the kitchen to see whether the counter tops were still there. He maintained that he did not go further into the house. After being told that his DNA was found in the dining room, Whitaker said that he and his friends had walked around the house to see whether there was a cast- iron tub. Police then asked Whitaker how his DNA and semen were found
inside A.D. Whitaker stated that on Wednesday night, he rode a bike to the area looking to get high. He met two men and they entered the Fuller Avenue house. He did not know how A.D. got there, but she was naked when he arrived. Whitaker denied hurting A.D. and said he just masturbated because he did not fit inside her. Whitaker then rode his bike home and arrived there at 8:15 or 8:20 a.m. Whitaker claimed that he did not know how young A.D. was until he saw the fliers.
c. Whitaker admits murdering A.D. Police later informed Whitaker that his bloody boot prints were the
only boot prints found in the house. Whitaker then changed his story and said that he and the other men met A.D. on East 93d Street. He said that A.D. kept walking back and forth while Whitaker was at the bus stop. At first, he did not know whether A.D. was a streetwalker. Whitaker stated that he asked A.D. “what was going on” and whether she wanted to go with them. Whitaker said that he was about to get high. According to Whitaker, the men walked across the field toward the Fuller Avenue house and A.D. followed them. Whitaker and A.D. went into the house, but the others remained outside. Whitaker stated that he got high and that A.D. asked what it made
him feel like. He said it made him horny. Whitaker then asked A.D. if they could get naked and do something. He stated that A.D. undressed herself and that after she was naked, he began to rub up against her and she never told him to stop. According to Whitaker, “things * * * got out of hand.” A.D. pushed and hit him. Whitaker reacted by punching her. He said that after that, “it was like a blur and * * * [he] almost blacked out” but “[e]verything was done by the time [his] mind cleared up.” Unsure whether A.D. was still alive, Whitaker dragged her to the closet and ran out of the house. Whitaker said that he did not remember whether he had used any
tools on A.D. Whitaker also claimed that none of this would have happened if he had been sober and in the right state of mind. Whitaker called his friend Deb from the interview room following
the end of questioning. Whitaker told her that he did not do it. He said the police picked him up because he was scrapping at the Fuller Avenue house and his fingerprints were there.
2. Whitaker’s second interview On February 3, Whitaker requested to speak to detectives again.
Whitaker first repeated his earlier claims that other people were with him inside the Fuller Avenue house. Police showed Whitaker evidence that an impression from only one type of boot was found inside the house. Questioning then shifted to Whitaker’s actions inside the house. Whitaker stated that A.D. panicked and that caused him to panic and “then that’s when all hell broke loose.” When asked about A.D.’s torn clothing, Whitaker stated that he probably tried to “yank it off of her” to hide all the evidence. He believed A.D. was still alive when he ripped off her clothing.
F. Whitaker’s phone calls from jail Whitaker made several monitored phone calls from jail while
awaiting trial. On February 16, 2017, Whitaker called a woman known as Martha and said, “[I]f anybody asks you that night when I got arrested, was we drinking and getting high, just say yeah.” Martha replied, “But we wouldn’t.” Whitaker then said, “You just say okay or just do it.” He added, “Anything that might have been said that first night I got arrested would have to be thrown out. They never tested me or anything for drugs, or alcohol.” On March 3, 2017, Whitaker told an unidentified woman, “This is
like pulling the rabbit out of the haystack. * * * I might have to use you as one of my witnesses or somebody as being in the house and getting high and having sex with me. * * * I’m talking about at the Fuller house.” On April 6, 2017, Whitaker told an unidentified woman, “I need you to call and probably one more person to call. Call the lawyer and tell him you all don’t want to be on TV, but you was over there and you had sex with [unintelligible] in the house.” He instructed her to say it was “January 23 or 24.” Whitaker said that he would decide who that other person was going to be. He concluded, “They *8 will know I was in that house and if my DNA is in there, it was because I did have somebody else in there and we had sex.”
G. DNA evidence Jeffrey Oblock, a DNA analyst with the Cuyahoga County Regional
Sciences Laboratory, conducted DNA tests on swabs obtained from A.D. The major DNA profile from seminal material found in A.D.’s vagina and on her labia matched Whitaker’s DNA profile. According to Oblock, the “probability of selecting an unrelated individual at random from a population as a possible contributor to that mixture is approximately 1 in 958 trillion in Caucasians, one in 67 trillion in African Americans and one in 571 trillion in Hispanics.” Oblock also determined that A.D.’s DNA profile was on swabs obtained from stains on the shaft and handle of the nut driver, the trigger and top surface of the drill, the blade of the utility knife, and the handle of the putty knife and from apparent bloodstains on the blade and handle of the utility knife and the blade and hilt of the putty knife. Oblock stated that a “match between [the grip of the drill] and A.D. is 10.9 octillion times more probable than a coincidental match to an unrelated African-American person, 499 octillion times more probable than a coincidental match to an unrelated Caucasian person, and 45.3 octillion times more probable than a coincidental match to an unrelated Hispanic person.”
H. Boot-print evidence Lisa Przepyszny, a forensic scientist at the Cuyahoga County
Regional Forensic Science Lab, testified that all the boot prints in the crime-scene photos and two imprints in plaster at the scene had a similar tread design and appeared to be from the same boot. Przepyszny testified that a pair of Ozark Trail boots that police had seized from the house where Whitaker stayed on East 84th Street had a similar tread pattern to the boot prints in the blood found at the Fuller Avenue house. She compared the left Ozark boot to bloody impressions on the plaster taken from the crime scene and concluded that the “comparison revealed *9 class characteristics and several unique wear characteristics” to show a level II association. (According to Przepszny’s forensic report, which was admitted into evidence, a level II association is “[a]n association in which the known sample and the questioned sample share the same physical properties and/or chemical composition. Also, the known sample and the questioned sample display unique or atypical characteristics that would be expected to be readily found within the population of this evidence type.”)
I. Autopsy results Dr. David Dolinak, a Cuyahoga County deputy medical examiner,
conducted A.D.’s autopsy and concluded that she died from multiple injuries. She had suffered eight puncture wounds of various depths to her face and head. One puncture wound through her right eyelid forced her eye partly from its socket, fractured the bone above and behind her eye, and entered the right side of her brain. Another puncture wound on the right side of her face displayed a pattern that was consistent with “a corded drill with a sprocket at the end of it.” And another puncture wound went through the right ear and skull and into her brain. Dr. Dolinak also identified a pattern injury on A.D.’s face that was consistent with the metal teeth marks on a power drill, a tear to her scalp that could have been caused by a hammer or a wrench, and a puncture wound on the top of her head that was consistent with a Phillips-head screwdriver. The pattern of another wound by her left ear “might be an imprint to some extent from the bottom of the boots” and the force from a boot on the side of her face may have fractured her jawbone. A puncture wound to A.D.’s breastbone and a cluster of puncture wounds to the back of her body were consistent with a Phillips-head screwdriver. Dr. Dolinak noted that the loss of a large amount of blood indicated that A.D.’s carotid artery had been cut and further testified that there had been many injuries to her neck. Dr. Dolinak stated that A.D. was still alive when the majority of the injuries were inflicted.
II. PROCEDURAL HISTORY Whitaker was charged with ten felony counts. In Count 1, he was
charged with the aggravated murder of A.D. while committing rape. In Count 2, Whitaker was charged with the aggravated murder of A.D. while committing kidnapping. In Count 3, he was charged with committing the aggravated murder of A.D. while committing aggravated burglary. And in Count 4, he was charged with the aggravated murder of A.D. with prior calculation and design. Each of the aggravated-murder counts included three death-penalty
specifications under R.C. 2929.04(A)(7): (1) committing or attempting to commit rape as the principal offender, “or, if not the principal offender, committ[ing] the aggravated murder with prior calculation and design,” (2) committing or attempting to commit kidnapping as the principal offender, “or, if not the principal offender, committ[ing] the aggravated murder with prior calculation and design,” and (3) committing or attempting to commit aggravated burglary as the principal offender, “or, if not the principal offender, commit[ing] the aggravated murder with prior calculation and design.” In Count 5, Whitaker was charged with rape. Count 6 charged him
with kidnapping for the purpose of terrorizing or inflicting serious physical harm. Count 7 charged him with kidnapping for the purpose of engaging in sexual activity against A.D.’s will. Counts 6 and 7 included a specification under R.C. 2941.147, alleging that he had committed the offenses with a sexual motivation. Counts 5, 6, and 7 included a specification alleging that Whitaker is a sexually violent predator under R.C. 2941.148. Count 8 charged Whitaker with aggravated burglary. All four counts included a notice-of-prior-conviction specification, R.C. 2929.13(F)(6), and a repeat-violent-offender specification, R.C. 2941.149(A). In Count 9, Whitaker was charged with tampering with evidence,
and Count 10 charged him with gross abuse of a corpse.
{¶ 35} Whitaker pled not guilty to all the charges. He elected to bifurcate the notice-of-prior-conviction specifications, the repeat-violent-offender specifications, and the sexually-violent-predator specifications from the remaining charges. He stipulated to his prior convictions. A jury found Whitaker guilty of the remaining counts and specifications. The sexually-violent-predator specifications were later dismissed. And the trial court chose not to impose any sentence for the repeat-violent-offender specifications. During mitigation, the state elected to proceed on Count 4. The jury
recommended a death sentence, and the trial court sentenced Whitaker accordingly. The trial court sentenced Whitaker to an aggregate prison term of 48 years to run consecutively on the noncapital offenses. Whitaker appeals his convictions and sentence and raises 21
propositions of law. We will address these issues in the approximate order that they arose during the proceedings.
III. ISSUES ON APPEAL A. Capital specifications In proposition of law No. XVII, Whitaker argues that the capital indictment was insufficient because it did not include a grand-jury determination that there was probable cause to find that the aggravating circumstances outweighed the mitigating factors. He contends that this probable-cause finding must be alleged in the indictment to comply with Article I, Sections 9, 10, and 16 of the Ohio Constitution and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Because Whitaker failed to object before trial to this alleged
deficiency, he has forfeited this claim absent plain error.
State v. Horner
, 126 Ohio
St.3d 466,
that allow for the imposition of the death penalty. Whitaker invokes
Apprendi v.
New Jersey
,
“expose[s] the defendant to a greater punishment than that authorized by the jury’s
guilty verdict” is an “element” of the charged offense that must be submitted to a
jury.
Id.
at 494.
Ring
applied the
Apprendi
rule to invalidate Arizona’s death-
penalty scheme, which had allowed the imposition of the death penalty based solely
on judicial fact-finding of the aggravating factors.
Ring
at 597, 603-609.
We previously rejected the argument that Whitaker makes here,
holding that “
Apprendi
and
Ring
are rooted in the Sixth Amendment right to a jury
trial,”
State v. Sowell
, 148 Ohio St.3d 554,
R.C. 2903.01(A) and (B), and the death-penalty specifications tracked the language of R.C. 2929.04(A)(7). And Whitaker does not contend that the indictment’s omission of any averment as to the relative weight of aggravation and mitigation deprived him of adequate notice of the charges against him. Thus, the indictment *13 does not violate Article I, Sections 9, 10, and 16 of the Ohio Constitution and satisfies the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. See Sowell at ¶ 128. Based on the foregoing, we reject proposition of law No. XVII.
B. The kidnapping specifications In proposition of law No. IV, Whitaker argues that the indictment
for the felony-murder specification predicated on kidnapping was defective.
However, Whitaker failed to raise this objection before trial and thus has forfeited
all but plain error.
See State v. Skatzes
,
1. Indictment not defective The indictment for each aggravated-murder count included a felony-
murder-kidnapping specification under R.C. 2929.04(A)(7) that alleged that Whitaker purposely caused A.D.’s death while he was “committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” Counts 6 and 7 alleged two types of kidnapping. Count 6 charged Whitaker with kidnapping “for the purpose of terrorizing or inflicting serious physical harm” on A.D. See R.C. 2905.01(A)(3). And Count 7 charged him with kidnapping “for the purpose of engaging in sexual activity” against A.D.’s will. See R.C. 2905.01(A)(4). “The sufficiency of the kidnapping specifications must be judged
solely by reference to the counts in which they are contained. Individual counts in
the same indictment are not interdependent but instead stand on their own as
individual indictments.”
State v. Roe
, 10th Dist. Franklin No. 86AP-59, 1987 WL
16174, *24 (Aug. 25, 1987), citing
State v. Adams
,
jury failed to specify which of the two kidnapping offenses in the felony-murder- kidnapping specification applied to each aggravated-murder count or alternatively, that the grand jury failed to charge both of the felony-murder-kidnapping specifications for each count of aggravated murder. Thus, Whitaker contends that the jury double-weighed the kidnapping offenses in Counts 6 and 7 during the mitigation phase and that the sentencing judge did the same. In Roe , 1987 WL 16174, the Tenth District Court of Appeals
addressed a similar issue. Roe was also charged with two counts of aggravated murder (counts one and two), each of which included a specification for committing the charged offense while “committing or attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping.” Id . at *23. Roe was also charged with two different types of kidnapping: count four alleged kidnapping by force, threat, or deception, and count five alleged creating a substantial risk of physical harm in removing the victim. Roe argued that the kidnapping specifications in counts one and two failed to give him sufficient notice of the type of kidnapping alleged in those specifications. The court of appeals rejected Roe’s argument:
Because of the absence in counts one and two of any express reference incorporating the allegations made in counts four and five, * * * the allegations made in counts four and five will not serve to fill out the specifications in counts one and two. As a result, the specificity contained in counts four and five as to the type of kidnapping alleged does not necessarily limit the broader, more expansive term ‘kidnapping’ contained in counts one and two.
Id . at *24. As in Roe , the felony-murder specifications predicated on
kidnapping in this case did not incorporate by reference the separate kidnapping offenses charged in Counts 6 and 7. For the same reasons stated by the appeals court in Roe , we conclude that the specificity contained in Counts 6 and 7 as to the types of kidnapping alleged does not limit the offense of kidnapping contained in the felony-murder specifications. Whitaker also claims that the indictment violated his rights to due
process and fair notice. The appellate court in Roe rejected a similar claim, explaining that the kidnapping specifications in that case were sufficient:
R.C. 2941.14(C) indicates that a specification alleging an aggravating circumstance under R.C. 2929.04 “may be stated in the words of the subdivision in which it appears, or in words sufficient to give the accused notice of the same.” Because the kidnapping specifications * * * track the language of R.C. 2929.04(A)(7), R.C. 2941.14(C) was satisfied.
Roe
at *24, citing Crim.R. 7(B). Similarly, we have recognized that “an indictment
* * * is not defective as long as it ‘tracks the language of the criminal statute
describing the offense,’ because that suffices to ‘provide[] the defendant with
adequate notice of the charges against him.’ ” (Brackets added in
Wesson
.)
State
v. Wesson
,
2. Jury instructions Whitaker, in his reply brief, argues that the jury instructions failed
to adequately advise the jurors on the kidnapping specifications. But “[a]ppellate
courts generally will not consider a new issue presented for the first time in a reply
brief.”
State v. Quarterman
,
3. No double-weighing in the sentencing opinion Whitaker also contends that the trial court double-weighed the
aggravating circumstance of kidnapping, based on the two kidnapping convictions. Whitaker points to the following language in the sentencing opinion in support of his contention:
The second aggravating circumstance found by the jury by proof beyond a reasonable doubt involved the kidnapping of A.D. * * * during the commission of Aggravated Murder. Kidnapping is charged in both counts six and seven. Count six references for the purpose of terrorizing or inflicting serious physical harm upon A.D. * * * Count seven references the kidnapping for the purpose of sexual activity which has already been discussed. R.C. 2929.03(F) provides, in part:
The court or panel of three judges, when it imposes sentence of death, shall state in a separate opinion its specific findings as to * * * the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances *17 the offender was found guilty of committing were sufficient to outweigh the mitigating factors.
The trial court correctly identified the three aggravating circumstances—the rape
of A.D., the kidnapping of A.D., and the aggravated burglary during the
commission of aggravated murder—in its opinion. And the trial court concluded
its findings by stating: “[I]t is the decision of the Court that
the three aggravating
circumstances
involving the aggravated murder of A.D. * * * outweigh the
mitigating factors beyond a reasonable doubt.” (Emphasis added.) The trial court
identified the correct number of aggravating circumstances, and nothing in its
sentencing opinion indicates that it double-weighed the kidnapping specifications.
Compare State v. Hill
,
C. Sufficiency of the evidence for the aggravated-burglary conviction In proposition of law No. II, Whitaker argues that there was insufficient evidence to convict him of aggravated burglary.
1. Relevant facts Lavontay McKenzie owned the Fuller Avenue house. He bought it
from his father two years before the murder and planned to “fix it up, do like a group home * * * or something on that level.” McKenzie testified that the house was undergoing renovations at the time of the murder. He testified, “I tried to just do a good cleanout, tore up the carpet, dug up the tile in the upstairs floor” and “ripped up the two kitchens * * * and flooring in the bathroom.” McKenzie and his cousin worked on the renovations during the summer of 2016, and that was the last time he had been in the house. He secured the house by locking the front door *18 and leaving a pit bull in the backyard. However, the city removed the pit bull approximately four to six months before the murder. McKenzie testified that he had actually been inside the house only “three or four times.” But he had never given anyone else permission to enter the house.
2. Relevant statutes R.C. 2911.11(A) defines aggravated burglary as follows:
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * *, when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender’s person or under the offender’s control. * * *
(C) As used in this section:
(1) “Occupied structure” has the same meaning as in section 2909.01 of the Revised Code. Under R.C. 2909.01(C)(1), the definition of an “occupied structure”
includes a house that “is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.”
3. Sufficiency of the evidence Whitaker was convicted of aggravated burglary based on evidence
that he forcibly entered the Fuller Avenue house with A.D., where he raped and murdered her. But Whitaker argues there was insufficient evidence that an *19 aggravated burglary occurred because, he contends, the Fuller Avenue house was not an occupied structure at the time of the offense. In reviewing a record for sufficiency, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.”
State v. Jenks
,
which is not presently occupied as a person’s habitation, but, which has neither
been permanently abandoned nor vacant for a prolonged period of time, can be
regarded as a structure ‘maintained’ as a dwelling within the meaning of R.C.
2909.01(A).”
State v. Green
, 18 Ohio App.3d 69, 480 N.E.2d 1128 (10th
Dist.1984), paragraph one of the syllabus. “Even homes undergoing major
renovations have been found to be occupied structures,”
State v. Johnson
, 188 Ohio
App.3d 438,
the state, no rational trier of fact could have found that the Fuller Avenue house
was an “occupied structure,” as defined in R.C. 2909.01(C)(1), at the time of the
offense. McKenzie testified that the Fuller Avenue house was vacant because it
was undergoing renovations. McKenzie further stated that, during the period
relevant to this case, the house was in the process of being gutted. Moreover, there
is no testimony about when the house was last occupied, indicating that it had been
years since anyone lived there. Despite McKenzie’s stated intention to renovate
the house to make it suitable for future inhabitants, the evidence demonstrates that
it had been a prolonged period since the house had been occupied and that it would
*20
remain unoccupied indefinitely. We accordingly conclude, based on the evidence
before us, that the house was not maintained as a permanent or temporary dwelling.
Viewing the evidence in the light most favorable to the state, we conclude that there
was insufficient evidence to convict Whitaker of aggravated burglary. His
aggravated-burglary conviction is therefore vacated. We further vacate the finding
of guilt on Count 3, felony murder during an aggravated burglary (which was
merged with Count 4 for purposes of sentencing) and we reverse the trial court’s
judgment on the death-penalty specifications predicated on aggravated burglary
and dismiss those specifications.
See State v. Madison
,
Whitaker of aggravated burglary, proposition of law No. III, in which Whitaker argues that his conviction for aggravated burglary is against the manifest weight of the evidence, is rendered moot; therefore we need not address it.
D. Ineffective assistance of counsel for failing to challenge the kidnapping and
aggravated-burglary convictions In proposition of law No. V, Whitaker argues that he was denied
effective assistance of counsel because his attorneys failed to challenge the kidnapping and aggravated-burglary convictions. Reversal of a conviction based on ineffective assistance of counsel
requires that the defendant show that counsel’s performance was deficient and that
the deficient performance prejudiced the defendant to such a degree that it deprived
the defendant of a fair trial.
Strickland v. Washington
,
to support Whitaker’s aggravated-burglary conviction, we conclude that his *21 ineffective-assistance-of-counsel argument in regard to that conviction is moot, and we need not address it. In regard to the kidnapping conviction, Whitaker claims that defense
counsel failed to provide a meaningful argument at trial to explain why the court
should grant his Crim.R. 29 motion for acquittal on the felony-murder
specifications based on kidnapping. “A motion for acquittal may be granted only
when, construing the evidence most strongly in favor of the state, the evidence is
insufficient to sustain a conviction.”
State v. Grate
,
murder death specifications predicated on kidnapping were not defective. Whitaker fails to explain any additional arguments that defense counsel should have made before the trial court in support of his motion for acquittal on those specifications. Thus, he has not established that defense counsel were deficient in the handling of his Crim.R. 29 motion in regard to those specifications. See id . (failure to make a Crim.R. 29 motion not deficient when such motion would be futile). During opening statements, defense counsel informed the jury: “At
[Whitaker’s] direction * * * he doesn’t want to make a circus out of this. That’s why * * * we’re not contesting liability. * * * We’re not contesting that he did it.” Instead, defense counsel argued during closing arguments that Whitaker claimed he was high on drugs at the time of A.D.’s murder, and defense counsel challenged evidence that Whitaker was guilty of murder with prior calculation and design. During mitigation, defense counsel referred to Whitaker’s desire not to make the trial into a circus as a reason not to impose a death sentence. Whitaker argues that counsel was unjustified in acknowledging
Whitaker’s admission of guilt before the jury. But defense counsel could not at the
same time have credibly argued to the jury that Whitaker was not contesting
liability. And simply because there might have been “ ‘another and better strategy
*22
available’ ” does not mean that counsel provided ineffective assistance.
State v.
Mohamed
, 151 Ohio St.3d 320,
jury that Whitaker had requested that counsel concede his guilt, and Whitaker does
not dispute that statement.
Compare McCoy v. Louisiana
, __ U.S. ___, ___, 138
S.Ct. 1500, 1511,
kidnapping conviction, and we conclude that the proposition is moot as to the aggravated-burglary conviction.
E. Weighing of the aggravating circumstances In proposition of law No. XIII, Whitaker argues that the jury
improperly weighed the aggravating circumstances against the mitigating factors in a manner that tipped in favor of the aggravating circumstances. First, Whitaker recasts his claims as to the sufficiency of the
evidence of the aggravated-burglary offense, arguing that the jury and the trial court
improperly weighed aggravated burglary as an aggravating circumstance because
the state failed to prove that offense. Consistent with our above analysis, the jury
*23
and the trial court should not have considered aggravated burglary as an
aggravating circumstance during the mitigation phase.
See Madison
, 160 Ohio
St.3d 232,
the aggravating circumstance of kidnapping, arguing that both the jury and the trial court considered two kidnapping offenses rather than one as aggravating circumstances. But as discussed in our analysis of proposition of law No. IV, individual counts in the same indictment stand on their own, and the separate kidnapping offenses in Count 6 (kidnapping “for the purpose of terrorizing or inflicting serious physical harm”) and Count 7 (kidnapping “for the purpose of engaging in sexual activity” with A.D. against her will) do not limit the offense of kidnapping in the aggravating circumstances. Further, as previously discussed, the trial court correctly identified the three aggravating circumstances in its sentencing opinion, and nothing indicates that either the jury or the trial court double-weighed the kidnapping specifications. Based on the foregoing, we reject proposition of law No. XIII.
F. Sufficiency and manifest weight of the evidence for gross abuse of a corpse In proposition of law No. VI, Whitaker argues that there was insufficient evidence to convict him of gross abuse of a corpse. And in proposition *24 of law No. VII, he argues that his conviction for gross abuse of a corpse is against the manifest weight of the evidence. Gross abuse of a corpse is defined in R.C. 2927.01(B): “No person,
except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.” The factual basis for this charge rested in Whitaker’s admission that after he attacked A.D., he tried to hide her body by “dragg[ing] her to the closet.” Whitaker claims that there was no evidence showing that he inflicted
any injury on A.D.’s corpse. But Whitaker’s admission that he dragged A.D. to the
closet after attacking her belies that claim. And evidence of an attempt to conceal
a body is sufficient to sustain a conviction for gross abuse of a corpse.
See State v.
Bridges
, 8th Dist. Cuyahoga No. 100805,
the time the alleged abuse of a corpse occurred. Dr. Dolinak, the medical examiner, testified that A.D. was alive when the majority of injuries were inflicted on her. He was unsure whether A.D. was alive when she received abrasions on her right breast and the front side of her chest because he did not see any hemorrhage with those injuries. But he testified that A.D. could have bled out a couple of minutes after her carotid artery was cut. Thus, there was sufficient evidence for a jury to conclude that A.D. was dead when Whitaker tried to hide her body by dragging her to the bedroom. Whitaker next argues that the evidence would need to show that
A.D.’s body was taken away from the murder scene and dumped elsewhere to
constitute gross abuse of a corpse. But R.C. 2927.01(B) “proscribes a broad range
of conduct provided that it is so inappropriate and insensitive as to outrage
*25
community standards.”
State v. Condon
,
conclude that Whitaker’s admissions, Dr. Dolinak’s testimony, and police
testimony regarding the location and condition of A.D.’s body constituted sufficient
evidence on which to convict Whitaker of gross abuse of a corpse. As for
Whitaker’s manifest-weight challenge, this is not “ ‘the exceptional case in which
the evidence weighs heavily against the conviction.’ ”
Williams
, 99 Ohio St.3d
493,
VII.
G. Prosecutorial misconduct In proposition of law No. I , Whitaker alleges various incidents of
trial-phase prosecutorial misconduct. Except where noted, defense counsel failed
to object to the prosecutor’s alleged misconduct at trial and has thus forfeited all
but plain error.
State v. Hartman
,
complained of deprived the defendant of a fair trial.”
State v. Fears
, 86 Ohio St.3d
*26
329,
1. Presentation of unnecessary evidence Whitaker argues that the prosecutor presented unnecessarily
detailed, extensive, and horrific evidence of A.D.’s murder during the trial after
defense counsel conceded Whitaker’s guilt during opening statements. At bottom,
these arguments are evidentiary claims. Accordingly, we must determine whether
the challenged evidence was properly admitted. Because “[a] trial court enjoys
broad discretion in admitting evidence[, we] will not reject an exercise of this
discretion unless it clearly has been abused and the criminal defendant thereby has
suffered material prejudice.”
State v. Long
,
Evid.R. 402 if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evid.R. 401. A trial court may exclude relevant evidence if “its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.” Evid.R. 403(B). Further, a court must exclude evidence when its “probative value is substantially outweighed by the danger of unfair prejudice.” Evid.R. 403(A). Contrary to Whitaker’s arguments, neither the Rules of Evidence nor
this court’s precedents make “necessity” a prerequisite for admissibility.
See State
v. Mammone
,
evidence about A.D.’s ride on the RTA bus, her failure to show up for school, or the search for A.D. But this evidence was relevant in explaining the time and location of A.D.’s disappearance. It also supported a finding that Whitaker acted with purpose when he murdered A.D. See id . at ¶ 121. Thus, no misconduct occurred in the presentation of this evidence. Second, Whitaker contends that the prosecutor should not have
introduced evidence about “[t]he amount of blood” and the way A.D.’s injuries
were inflicted. The prosecution, over a defense objection, introduced photographs
showing bloody boot prints, a trail of blood leading from the dining room to the
bedroom where A.D.’s body was found, and blood smears and a larger amount of
blood found underneath A.D.’s body. The boot prints matched Whitaker’s boots
and helped to identify him as the murderer, and the bloody smears underneath
A.D.’s body showed that A.D. was attacked in the dining room and dragged to the
bedroom. All this evidence was admissible to illustrate the nature and
circumstances of the crime that had occurred inside the Fuller Avenue house
. See
id.
at ¶ 124. Even if any of this evidence had been improperly admitted by the
court, any such error would not have affected the outcome of the trial in view of
the other overwhelming evidence of Whitaker’s guilt
. See State v. Ford
, 158 Ohio
St.3d 139,
identifying any specific photos that are objectionable. The most detailed and
gruesome photos introduced at trial were the autopsy photos. Assuming that
Whitaker is complaining about those photos, his argument lacks merit. Dr. Dolinak
used the autopsy photos to illustrate his testimony about A.D.’s wounds and her
cause of death. Dr. Dolinak testified that several of the photos showed that the
injuries may have been caused by tools found inside the Fuller Avenue house and
by the sole of Whitaker’s boots. The photos depicted different injuries and do not
*28
appear to have been cumulative. But even if any of these photos had been admitted
in error, Whitaker cannot show that the outcome of the trial would have differed
had the error not occurred, given the other overwhelming evidence of Whitaker’s
guilt.
See Mammone
,
2. Trial-phase closing argument Whitaker claims that the prosecutor’s extensive and detailed closing
argument was unnecessary because Whitaker was not contesting his guilt. But
Whitaker presents no authority that would place limitations on the prosecution’s
closing arguments when defense counsel concedes the defendant’s guilt during
opening statements. Indeed, during closing arguments in this case, defense counsel
argued that prior calculation and design was not proven, thereby contesting
Whitaker’s guilt on that issue. Whitaker’s arguments on this point are rejected.
Whitaker also makes specific claims about the prosecutor’s closing
arguments. Except where noted below, Whitaker failed to object to these
arguments at trial and cannot prevail on these claims absent plain error.
See State
v. Slagle
,
“[Whitaker] took her innocence.” But the prosecutor’s characterization of the rape
and murder of A.D., a 14-year-old victim, represented fair comment.
See State v.
Mundt
,
prosecutor made to the jury were improper:
Her injuries can testify. The horror inflicted upon her can testify. She can show us what happened to her through her injuries.
That’s why we had to show you those photos, ladies and gentlemen. We were forced to. We have to show them to you because the burden is on us and because that is where you get the most credible evidence, through the science, through the scene, because that is your job, is to determine the credibility of the evidence. “A prosecutor may state his or her opinion if it is based on the
evidence presented at trial.”
State v. Diar
,
photos were “important, because [they] give[] you an understanding of what happened to her.” But the prosecutor’s comments to the jury about the importance of the photos in the context of the state’s burden of proof and the scientific evidence *30 also represented fair comment. Accordingly, no plain error occurred in the prosecutor’s trial-phase closing argument.
3. “Cast of characters” display Whitaker argues that the trial court erred by admitting victim-
impact evidence in the form of a photo display of A.D. and the lay witnesses who testified during the state’s case-in-chief.
a. Displayed photos The prosecution, over defense counsel’s objection, presented a
“cast of characters” board displaying photos of A.D. and most of the state’s lay witnesses. The prosecutor placed a photo of each of these witnesses on the board after the witness testified: A.D.’s mother; A.D.’s school principal; J.P., a student who rode the bus with A.D.; J.R., the student who missed A.D. at the bus stop on the day she went missing; Alton Sanders, Whitaker’s friend; Lavontay McKenzie, the owner of the Fuller Avenue house; and David Brewton, the church pastor who saw Whitaker on the day of the murder. In response to defense counsel’s objection, the prosecutor
explained that he wanted “everybody who is a lay witness on this trial to be added to the board so the jury understands who came and testified.” In allowing the display, the trial court informed the prosecutor, “We’ll just turn it around when one of your cast members is on the stand.” At the close of the evidence, the trial court admitted all the photos into evidence.
b. Analysis “Victim-impact evidence includes evidence relating to the victim’s
personal characteristics and the impact the crime had on the victim’s family.”
State
v. Graham
, 164 Ohio St.3d 187,
principal, and the boy who rode the bus with A.D. constituted victim-impact
evidence that was presented to inflame the passions of the jury and make the jurors
see him as a monster in contrast with A.D.’s innocence. The state contends that
none of the photos constituted victim-impact evidence.
The state invokes
State v. Myers
,
6658, 780 N.E.2d 186, ¶ 108-109, in arguing that the photos were admissible because they related to the facts attendant to the offenses charged. In Myers , photos of the victim holding her daughter, of the victim’s tattoo, and of the victim’s daughter were introduced. Id . at ¶ 107. We held that the photos of the victim holding her daughter and of the victim’s tattoo were admissible because they aided other witnesses in identifying the victim, and the photos of the victim’s daughter were in the victim’s billfold found underneath the front seat of her car. Id . at ¶ 108- 109. Unlike in Myers , none of the witness photos on the display board in this case related to the facts attendant to the offenses with which Whitaker was charged. Thus, Myers is inapposite. First, we note that lay witnesses Sanders, McKenzie, and Brewton
had no connection to A.D. or her family; therefore, their photos were not victim- impact evidence. However, we find that the photo display of A.D. and of A.D.’s mother, principal, and two of A.D.’s friends constituted victim-impact evidence. The prosecutor claimed that the witness photos were displayed for the jury to see *32 who came and testified. But the jury observed the witnesses and did not need to see the photos to understand who testified. Instead, the photos of A.D. and of her mother, principal, and friends served as a visual reminder of the different ways that A.D.’s family and friends were affected by her death. Nonetheless, we hold that none of this evidence resulted in
reversible error. In
Graham
, 164 Ohio St.3d 187,
(1) the length of the victim-impact testimony; (2) whether witnesses, jurors, and audience members showed physical signs of emotion during the testimony; (3) the detail and depth of the victim-impact testimony with regard to the murder victim; (4) whether the victim- impact witness used emotionally charged language; (5) the number of victim-impact witnesses; and (6) our precedent in similar cases involving allegedly overly emotional victim-impact testimony. (Citations omitted.) Arguably, two Graham factors apply here: the length of the
testimony (because the photo board was displayed throughout each witness’s
testimony) and the number of witnesses. Photos were added to the display during
the testimony of each witness and displayed repeatedly over the course of the trial.
However, victim-impact testimony did not immediately precede the display of the
photos, thus limiting their emotional impact.
See Wilks
,
{¶ 109} Here, the photos of A.D. and of A.D.’s mother, principal, and two of her friends were impactful but insufficient to inflame the passions of the jurors and inhibit them from making objective and rational decisions regarding Whitaker’s guilt or the appropriate punishment. Thus, we conclude that this evidence was not overly emotional. See Graham at ¶ 133. Based on the foregoing, we reject proposition of law No. I.
H. Compelled psychiatric examination In proposition of law No. VIII, Whitaker challenges the trial court’s
order compelling him to undergo a psychological examination by a state-selected psychiatrist.
1. Relevant background Shortly after the trial began, the state moved for Whitaker to submit
to a psychological examination. The state asserted that Whitaker had retained Dr. Robert Kaplan, a psychologist, who completed a report stating that Whitaker is “addicted to alcohol, cocaine, and cannabis” and that Whitaker’s “memory of the offense was impaired because of a variety of factors.” The state intended to retain a psychological expert to review Dr. Kaplan’s report and all the relevant records and to personally evaluate Whitaker to rebut Dr. Kaplan’s findings. At a subsequent hearing, defense counsel objected to Whitaker’s
being examined by the state’s expert, because Dr. Kaplan was going to address mitigating factors rather than a medical diagnosis like brain trauma. Further, defense counsel argued that subjecting Whitaker to examination by the state’s expert forced him “to choose between his 8th Amendment right to present mitigation and his Fifth Amendment right not to incriminate himself.” The state rejoined that Whitaker’s Fifth Amendment concerns were not implicated, because the state has the right to present rebuttal testimony once a defendant has elected to present a mental-health expert to testify. The state added that Dr. Kaplan’s report addressed Whitaker’s mental status and that Dr. Kaplan had concluded that *34 Whitaker was not able to control his behavior due to a combination of dissociation and cocaine intoxication. The trial court granted the state’s motion. During the mitigation phase, Dr. Kaplan testified that Whitaker
“was under the influence of repressed anger that was released in an uncontrolled and violent manner” when he killed A.D. Dr. Kaplan stated that Whitaker repressed the anger that he had developed after he witnessed domestic violence against his sister when he was young. Dr. Kaplan added that Whitaker had developed “a maladaptive coping system [of] dissociation” that impaired his ability to control his behavior and explained his inability to recall “the actual act of violence” against A.D. Dr. Kaplan also testified that Whitaker’s cocaine intoxication contributed to his inability to control his behavior. Dr. Kaplan did not diagnose Whitaker with an antisocial
personality disorder. He opined that Whitaker does not meet the criteria under the Diagnostic and Statistical Manual of Mental Disorders (“ DSM-5 ”) (5th Ed.2013) for “the diagnosis of any paraphilic disorder, including a pedophilic disorder.” And he stated that Whitaker is remorseful about the offenses. Dr. Kaplan also opined that Whitaker would not be facing capital-murder charges if his mother had not died when he was young, he had had a positive male role model, and he had not witnessed domestic violence against his sister. The state introduced the testimony of Dr. Sara West, a forensic
psychiatrist, in rebuttal. She testified that Dr. Kaplan diagnosed Whitaker with three substance-use disorders and an adjustment disorder with mixed anxiety and depressed mood. Dr. West also testified that testing performed by Dr. Kaplan “indicated a low probability of dissociation” and that the evidence suggested that Whitaker did not black out at the time of the offense. She stated that no evidence corroborated Whitaker’s statement that he was under the influence of cocaine at the time of the offenses. Unlike Dr. Kaplan, Dr. West did not believe that Whitaker was remorseful, because he expressed a lack of remorse during his phone calls from *35 jail. She also disagreed that the three events that Dr. Kaplan had referred to in Whitaker’s life led to his facing capital-murder charges.
2. Whitaker’s claims a. No Fifth Amendment violations Whitaker contends that the compelled examination violated the Fifth Amendment because he had not placed his state of mind directly in issue. He also contends that by ordering the examination, the trial court forced him to choose between his Fifth Amendment right against self-incrimination and his Eighth Amendment right to present mitigating evidence. We rejected Whitaker’s first argument in Madison , 160 Ohio St.3d
232,
the trial court forced him to forfeit his Fifth Amendment right to remain silent as a
condition of exercising his Eighth Amendment right to obtain and present
mitigating evidence in a capital case. In
Madison
, we explained that the right to
present mitigating evidence stems from the right to individualized capital
sentencing and that “the principle of individualized capital sentencing is not
undermined by requiring the defendant to submit to an examination by a state
expert” when the defendant opts to submit psychiatric evidence.
Id
. at ¶ 124. “Nor
does such an examination undermine the policies of the Fifth Amendment,”
id.
at
¶ 125, because “ ‘[a] defendant ‘has no right to set forth to the jury all the facts
which tend in his favor without laying himself open to cross-examination upon
*36
those facts.” ’ ”
Id
., quoting
Cheever
at 94, quoting
Fitzpatrick v. United States
,
b. Madison does not misconstrue United States Supreme Court precedents Whitaker argues that this court’s opinion in Madison misconstrues United States Supreme Court precedents that establish a trial court’s right to compel a defendant to undergo a psychiatric examination. Whitaker claims that Buchanan and Cheever require that (1) the defendant place his mental state directly in issue and (2) the state’s psychiatric evidence be only for the limited purpose of rebutting the defendant’s mental-status evidence. In Buchanan , the Supreme Court held that when a defense expert
who has examined the defendant testifies that the defendant lacked the requisite
mental state to commit an offense, the prosecution may present psychiatric
evidence in rebuttal.
c. Civ.R. 35(A) permitted the mental examination Whitaker also argues that the Rules of Civil Procedure do not allow
the trial court to order a capital defendant to submit to a psychological examination by the state’s expert.
(1) Relevant background Civ.R. 35(A) provides that “[w]hen the mental or physical
condition * * * of a party, or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit himself to a physical or mental examination.” Whitaker argues that the prosecution could not rely on Civ.R. 35(A) as the basis to conduct the state’s psychiatric examination. Crim.R. 57(B) states: “If no procedure is specifically prescribed by
rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists.” In the state’s motion for a psychiatric examination, and in its brief to this court, the state argued that this rule permitted the trial court to rely on Civ.R. 35(A) to order the examination because the Criminal Rules of Procedure provided no comparable rule.
(2) Analysis There are no criminal rules governing whether or when a court may
order a defendant to submit to a mental examination. In
State v. Schlee
, 117 Ohio
St.3d 153,
6282, 943 N.E.2d 992, in arguing that Crim.R. 57(B) does not automatically
authorize the use of the Rules of Civil Procedure whenever the criminal rules fail
to specifically address a procedural tool. In
Ross
, this court held that parties may
not resort to the Rules of Civil Procedure to obtain reconsideration of an order
denying a motion for acquittal under Crim.R. 29 after the period governing such
motions expires.
Id
. at ¶ 43-45. We stated that Crim.R. 29 “provides a detailed,
specific procedure governing the time that motions for acquittal must be made” and
“[e]ven though Crim.R. 29(C) does not specifically address reconsideration of a
denial of a motion for acquittal * * *, it can hardly be said that ‘no procedure is
specifically prescribed by rule’ regarding the timing of Crim.R. 29(C) motions.”
Id
. at ¶ 43. But unlike in
Ross
, there is no procedure in the criminal rules to order
a defendant to submit to the state’s psychiatric examination. Thus,
Ross
is
inapposite.
Next, citing
State ex rel. Steckman v. Jackson
,
439,
35(A) to order Whitaker to submit to the state’s psychiatric examination.
d. Court-ordered mental examination not limited to pretrial psychiatric
evaluations Whitaker argues that the General Assembly has established the
limited circumstances in which the trial court could compel him to undergo a state- conducted psychiatric examination. He contends that these include evaluations for competency to stand trial and to enter a plea of not guilty by reason of insanity, R.C. 2945.371(A), and evaluations to determine whether “the defendant suffered, at the time of the commission of the offense, from the ‘battered woman syndrome,’ ” R.C. 2945.371(G). However, the state’s ability to obtain a court-ordered mental
examination is not limited to cases involving these statutory circumstances. Accordingly, Whitaker’s attempt to limit the circumstances of such evaluations is also rejected.
e. Court-ordered mental examination not limited when defendant
presents mental evidence during mitigation Whitaker argues that R.C. 2929.03(D)(1) “imposes a burden” on a
capital defendant to present a broad range of mitigating evidence during the
mitigation phase of the trial. Accordingly, he suggests that the state is limited in its
ability to force a death-eligible defendant to respond to questions. But we have
already rejected the same argument, holding, “We find nothing in R.C.
*40
2929.03(D)(1) that bars a trial court from ordering a psychiatric examination of a
defendant for the purpose of rebutting psychiatric evidence that the defendant
intends to introduce.”
Madison,
I. State’s mental examination without counsel’s presence In proposition of law No. IX, Whitaker contends that the trial court
denied his Sixth Amendment right to counsel by not allowing defense counsel to
be present during his compelled examination. Although defense counsel objected
to the psychiatric examination, counsel did not argue that Whitaker was deprived
of his right to counsel at the examination. Thus, Whitaker has forfeited all but plain
error.
See State v. Payne
,
Amendment does not entitle a defendant to have his attorney present during a
compelled psychiatric examination.
Madison,
160 Ohio St.3d 232, 2020-Ohio-
3735,
{¶ 138} Finally, Whitaker questions the state’s motives for Dr. West’s psychiatric examination because she questioned him about the charges and conducted no testing of her own. He claims that Dr. West’s only purpose was to interrogate him on behalf of the state to hurt the defense’s case. But nothing in the record supports this allegation. Based on the foregoing, no plain error occurred, and we reject
proposition of law No. IX.
J. Exclusion of Whitaker’s plea offer In proposition of law No. XI, Whitaker argues that the trial court
erred by refusing to allow evidence during mitigation of his offer to plead guilty in exchange for a sentence of life without parole. At trial, defense counsel argued that Whitaker’s offer to plead
guilty in exchange for a sentence of life without parole was relevant mitigating evidence showing his acceptance of responsibility and genuine remorse. The prosecutor argued that an offer to plead guilty is not mitigating evidence, because “it does not support any concept of remorse; it’s an offer to avoid a potential penalty.” The trial court ruled that such evidence was inadmissible as a mitigating factor. We have previously held, “ ‘[A] defendant’s offer to plead guilty,
never accepted by the prosecutor, is not relevant to the issue of whether the
defendant should be sentenced to death.’ ”
Sowell
,
claims that his offer to plead guilty was evidence of his character and his acceptance
of responsibility and that it should have been admitted during mitigation. We
disagree.
In
Lockett v. Ohio
,
973 (1978), and
Eddings v. Oklahoma
, 455 U.S. 104, 114, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982), the United States Supreme Court held that in a capital case, the
sentencer may not refuse to consider, as a matter of law, any relevant mitigating
evidence. But “
Lockett
‘does not mean that the defense has
carte blanche
to
introduce any and all evidence that it wishes.’ ”
Owens v. Guida
,
While “acceptance of responsibility” could be a reason for mitigation, Owens’s proffered evidence shows no such acceptance. She did not offer to plead guilty unconditionally, which she could have done. Instead, she agreed to plead guilty only if guaranteed a life sentence in return. * * * [S]he was less interested in accepting responsibility and more interested in avoiding the electric chair, a motivation that is much less persuasive as a mitigating factor.
Id. at 420. Similar logic supports the trial court’s denial of Whitaker’s motion to introduce his offer to plead guilty during mitigation. *43 Whitaker points out that other jurisdictions have allowed a
defendant to present an offer to plead guilty in exchange for a life sentence as
mitigating evidence. In
United States v. Fell
,
in arguing that the trial court’s refusal to allow evidence of his offer to plead guilty
violated his Sixth, Eighth, and Fourteenth Amendment rights, and Article I,
Sections 9, 10, and 16 of the Ohio Constitution. First, Whitaker cites
Sandstrom v.
Montana
,
{¶ 148} We conclude that the trial court did not err in excluding evidence that Whitaker offered to plead guilty in exchange for a sentence of life without parole. Accordingly, we reaffirm our holdings in Dixon and Sowell . Based on the foregoing, we reject proposition of law No. XI.
K. Mercy as a mitigating factor In proposition of law No. XII, Whitaker argues that the trial court
erred by denying his request for an instruction on mercy during mitigation.
We have held that “[p]ermitting a jury to consider mercy, which is
not a mitigating factor and thus irrelevant to sentencing, would violate the well-
established principle that the death penalty must not be administered in an arbitrary,
capricious or unpredictable manner.”
State v. Lorraine
,
L.Ed.2d 429 (2006), and
Kansas v. Carr
,
departing from this settled law, we reject proposition of law No. XII.
L. Arguing the nature and circumstances of the offense In proposition of law No. X, Whitaker argues that the prosecutor
improperly argued that the jury should weigh the nature and circumstances of the offense as aggravating circumstances. “It is improper for prosecutors in the penalty phase of a capital trial
to make any comment before a jury that the nature and circumstances of the offense
are ‘aggravating circumstances.’ ”
State v. Wogenstahl
,
prosecution’s mitigation-phase opening statement:
[The prosecutor]: And that is what you’re going to be asked to do when you retire to the jury room, is to engage in the weighing process, the aggravating circumstances of rape, kidnapping, aggravated burglary, and what was done to [A.D.] during those three crime specifications —
[The defense counsel]: Objection.
The court: Overruled.
[The prosecutor]: — versus any mitigation presented by defense counsel. Whitaker argues that the prosecutor improperly told the jury to
consider “what was done to [A.D.]” as an aggravating circumstance. But Whitaker
had been found guilty of three aggravating circumstances, including aggravated
murder while kidnapping A.D. and aggravated murder during the rape of A.D.
Thus, the prosecutor’s remarks were focused on the nature and circumstances of
the aggravating circumstances and were proper.
See Froman
,
the prosecutor’s rebuttal in mitigation:
[The prosecutor]: And after you’ve given them the weight, those mitigating factors, Mr. Shaughnessy asked you to close your eyes.
Well, close your eyes and think about those aggravating circumstances. How long are those aggravating circumstances going to stay in your heads? How long are you going to see — or how much weight are you going to have of that rape of [A.D.]? What does that deserve? What kind of weight does that deserve? How much weight, when you sit there with your eyes closed, does that slow cutting of her neck get? Eight times across her neck. The smaller ones right below the neck. The stab wounds in her back. How much weight does that get?
[The defense counsel]: Your Honor, objection.
Your Honor, I apologize, but objection.
The court (to the prosecutor): Go ahead.
*47
{¶ 159}
Whitaker argues that these comments improperly urged the jurors
to focus on the nature and circumstances of the offense when deciding how much
weight to give the aggravating circumstances. Both parties have latitude in
responding to arguments of opposing counsel.
See State v. Neyland
, 139 Ohio St.3d
353,
wounds inflicted on A.D. was an aggravating circumstance. Instead, the prosecutor
suggested that the jury could take into consideration the number of wounds inflicted
during the crime. This is not an improper statement of the law.
See State v. Cepec
,
Whitaker cannot show prejudice, because the trial court correctly instructed the jury
on the aggravating circumstances and the proper standard to apply in the weighing
process.
See Mammone
,
M. Ineffective assistance of counsel In proposition of law No. XIV, Whitaker makes generalized claims
regarding ineffective assistance of counsel, and he argues that if this court *48 determines that any issues previously raised were not preserved for review, then he was denied the effective assistance of counsel. As discussed earlier, to prevail on a claim of ineffective assistance
of counsel, Whitaker must show that counsel’s performance fell below an objective
standard of reasonableness and, in addition, that prejudice arose from counsel’s
performance.
See Strickland
,
N. Consecutive sentences In proposition of law No. XV, Whitaker argues that when a
defendant has received a death sentence, a trial court errs by imposing consecutive
sentences for the noncapital counts. But because Whitaker failed to object to the
imposition of consecutive sentences at the sentencing hearing, he has forfeited this
issue, absent plain error.
See State v. Hunter
,
on the record that consecutive sentences are “necessary to protect the public from future crimes or to punish the offender and that consecutive sentences are not *49 disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.” R.C. 2929.14(C)(4). The court must also find that at least one of the following applies:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, and was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Id.
In
State v. Bonnell
, 140 Ohio St.3d 209,
N.E.3d 659, ¶ 37, we held that the trial court must make the requisite findings before imposing consecutive sentences “at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.” The trial court in this case imposed consecutive sentences for Count
5 (rape), Count 6 (kidnapping by force, threat, or deception for purpose of terrorization), Count 7 (kidnapping for purpose of engaging in sexual activity with *50 A.D. against her will), Count 8 (aggravated burglary), Count 9 (tampering with evidence), and Count 10 (abusing a corpse) for a total of 48 years. In its judgment entry, the trial court made the following findings,
which complied with R.C. 2929.14(C)(4):
The court imposes prison terms consecutively finding that consecutive sentences are necessary to protect the public from future crime and/or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant’s conduct and to the danger defendant poses to the public; and that, at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of defendant’s conduct, or defendant’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.
The trial court made similar findings at the sentencing hearing. Whitaker argues that because of his death sentence, the trial court’s
finding that consecutive sentences are necessary to protect the public from future
crimes is nonsensical and violates R.C. 2929.14(C)(4). But no Ohio statute
prohibits the imposition of consecutive sentences in capital cases, and Whitaker
provides no legal support for his argument that a court may not impose consecutive
sentences if it also imposes the death sentence.
See Grate
,
O. Cumulative error
{¶ 173} In proposition of law No. XVI, Whitaker argues that this court should reverse his convictions and sentences based on the doctrine of cumulative error. Under the doctrine of cumulative error, we will reverse a conviction
when the cumulative effect of errors deprives a defendant of a fair trial even though
each instance of trial-court error does not individually constitute cause for reversal.
State v. Powell
,
Whitaker received a fair trial. Moreover, none of the improper victim-impact evidence that was presented, when considered either individually or cumulatively, resulted in prejudicial error. As previously discussed, overwhelming evidence was presented that established Whitaker’s guilt in regard to each conviction, other than the aggravated-burglary conviction. See Powell at ¶ 224. We reject proposition of law No. XVI.
P. Supreme Court of Ohio’s proportionality review In proposition of law No. XIX, Whitaker argues that this court’s
proportionality review under R.C. 2929.05(A) should include, at a minimum, all cases in which the indictment included a death-penalty specification under R.C. 2929.04(A) in order to comport with the clear language of the statute, provide due process and a meaningful appeal, and avoid the imposition of cruel and unusual punishment. The Eighth Amendment does not require a court to conduct a
comparative proportionality review of death sentences.
Pulley v. Harris
, 465 U.S.
37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). However, R.C. 2929.05(A)
requires us to conduct a proportionality review of all death sentences: “In
*52
determining whether the sentence of death is appropriate, the court of appeals, in a
case in which a sentence of death was imposed for an offense committed before
January 1, 1995, and the supreme court shall consider whether the sentence is
excessive or disproportionate to the penalty imposed in similar cases.” We have
held that “R.C. 2929.05 does not require a comparison of sentences in non-capital
murder cases for proportionality review.”
State v. Jenkins
,
we held, “[T]he proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed.” In explanation of this holding, we stated:
We are further persuaded that a court cannot make a meaningful proportionality review unless the pool of cases is restricted to those which the reviewing court itself has decided. Comparison with cases not passed upon by the reviewing court would be unrealistic since the reviewing court could not possess the requisite familiarity with the particular circumstances of such cases so essential to a determination of appropriateness.
* * * No reviewing court need consider any case where the death penalty was sought but not obtained or where the death sentence could have been sought but was not.
(Citation omitted.) Id . at 123-124. We have rejected recent requests to reconsider this court’s
interpretation of R.C. 2929.05(A) with respect to the scope of proportionality
review.
See, e.g.
,
Sowell
,
Carolina and Tennessee Supreme Courts are examples of the way review should be meaningfully conducted in Ohio. But the fact that North Carolina and Tennessee have different methods of review does not show that our proportionality review is inadequate or in any way inconsistent with R.C. 2929.05(A). Based on the foregoing, we reject proposition of law No. XIX.
Q. Constitutionality
1. Right to plead guilty with a jury making the sentencing determination
In proposition of law No. XVIII, Whitaker argues that Ohio law is
unconstitutional because it does not allow a capital defendant to plead guilty and
have a jury make the sentencing determination. He argues that he has a
constitutional right to have a jury determine the existence of any mitigating factors
and to determine whether the aggravating circumstances outweigh the mitigating
factors under
Apprendi
,
165,
2. Violation of Hurst v. Florida
{¶ 184}
In proposition of law No. XX, Whitaker argues that Ohio’s capital-
sentencing procedures violate the Sixth Amendment right to a jury trial as construed
in
Hurst
. We rejected this claim in
State v. Mason
,
3. Ohio’s death-penalty statutes
{¶ 185}
In proposition of law No. XXI, Whitaker challenges the
constitutionality of Ohio’s death-penalty statutes and claims that the statutes violate
international law and treaties to which the United States is a party. We have
previously rejected the same arguments,
see, e.g.
,
State v. Thompson
, 141 Ohio
St.3d 254,
IV. INDEPENDENT SENTENCE EVALUATION Having considered Whitaker’s propositions of law, we must now
independently review Whitaker’s death sentence for appropriateness and proportionality as required by R.C. 2929.05(A).
A. Aggravating circumstances Whitaker was convicted of murdering A.D. while committing or
attempting to commit rape and while committing or attempting to commit kidnapping, all in violation of R.C. 2929.04(A)(7). The evidence at trial supports the jury’s findings of guilt as to those
two aggravating circumstances. The evidence showed that on the morning of January 26, 2017, Whitaker forcibly entered a vacant house with 14-year-old A.D., where he raped her and then killed her with a power drill, screwdriver, and other tools. The discovery of A.D.’s body at the Fuller Avenue house,
Whitaker’s bloody boot prints at the crime scene, his DNA in A.D.’s vagina and on *55 her labia, his confessions, and the coroner’s testimony established Whitaker’s guilt of the death-penalty specifications.
B. Mitigating evidence Against these aggravating circumstances, we must weigh the
mitigating factors set forth in R.C. 2929.04(B). In mitigation, Whitaker presented testimony from five witnesses and made an unsworn statement.
1. Mary Cecil McDonnell Mary Cecil McDonnell, a licensed independent social worker and
the defense mitigation specialist, discussed Whitaker’s background, social history, and themes in his life.
a. Whitaker’s upbringing and education Whitaker was born in a small, rural town in Tennessee. His parents
never married or lived together, and he saw his father only intermittently. Whitaker had a closer relationship with his paternal grandparents, who lived in the same town as he did. Both of them were important figures in Whitaker’s life. Whitaker had six older siblings. McDonnell testified that Whitaker’s oldest sister, Lisha Summers, told her that Whitaker had a normal birth and “met all of his developmental milestones at the appropriate time.” And both Summers and Whitaker told McDonnell that Whitaker had never been “physically abused or sexually abused or neglected.” Whitaker’s mother died following a long illness when he was eight
years old. After his mother’s death, Whitaker and his siblings moved to Cleveland. Summers, who was 19 years old at the time, obtained guardianship of the children and began serving as Whitaker’s de facto mother. Summers, the siblings’ Aunt Martha, and Martha’s sister, Ruth King, were “part of the kinship network” that helped raise Whitaker. The family struggled financially, and there was not a lot of food at times.
{¶ 194} Summers’s boyfriend, Michael McDonald, also lived with the family in Cleveland. But McDonald developed a heroin addiction. He became violent toward Summers, and Whitaker watched him beat her. McDonald, a large man, was also cruel to Whitaker and made awful and demeaning comments to him. Whitaker attended Cleveland public schools until the fourth grade. The family moved to Garfield when he was in the fifth grade. He dropped out of high school in the tenth grade. Whitaker was once suspended from school for fighting. There is no record that he had any significant learning disabilities. McConnell stated that Whitaker has never been diagnosed with a mental illness or treated for any psychological issues. In addition, there is no evidence that he suffered from a traumatic brain injury or that he has a history of seizures or neurological disorders.
b. Drug use Whitaker began smoking marijuana at age 15 and began smoking
marijuana heavily when he was 16. Whitaker also began using crack and cocaine in his early 20s. He continued to smoke marijuana and use crack and cocaine until his incarceration. Whitaker underwent drug detoxification during a 28-day inpatient treatment in 2000.
c. Criminal history In 1996 , Whitaker pled no contest to assault. That same year,
Whitaker pled guilty to criminal trespass. His sentence of 30 days was suspended. In 1999, Whitaker pled guilty to grand theft of a motor vehicle and burglary. He was sentenced to community sanctions for two years, which he repeatedly violated by testing positive for drugs. In 2000, he was sentenced to eight months in prison for violating community-control sanctions by testing positive for drug use. In 2005, Whitaker pled guilty to sexual battery and felonious assault and was sentenced to four years in prison; he was also found to be a sexually oriented offender. In 2012, Whitaker pled guilty to theft and aggravated theft and was sentenced to six months *57 in jail and two years of community control, which he violated by testing positive for drug use and was sentenced to six months in jail. In 2017, he pled no contest to disorderly conduct and was placed on probation.
d. Relationships Whitaker has a son and three daughters with four different women.
e. Themes from Whitaker’s life McDonnell identified several themes from Whitaker’s life. First,
the death of Whitaker’s mother resulted in a profound sense of helplessness and hopelessness. At the same time, his family moved from Tennessee to Cleveland, which deprived him of his ability to have contact with his father and paternal grandparents. Second, Whitaker was traumatized by witnessing domestic violence against Summers. McDonald also verbally and emotionally abused Whitaker. McDonnell opined that this experience “affect[ed] the way [Whitaker] looks at his ability to * * * function in the world [and] solve problems.” Third, according to McDonnell, Whitaker’s history of drug abuse affected his inhibitions and “particularly with cocaine and stimulating drugs, people often become violent, particularly over extended use.”
2. James Summers James is Whitaker’s older brother by about six years. According to
James, Whitaker always “hung around [his] mother [when] he was young.” But Whitaker “went into a shell” after their mother died and the family moved to Cleveland. James stated that Summers and McDonald fought all the time and
that Whitaker saw McDonald physically and verbally abuse her. Whitaker became involved in drug-related activity as a teenager. Whitaker did not have any positive male role models, because James was selling drugs during that time and their father was not around or involved with their lives.
{¶ 203} Whitaker and James lived together for a few months as adults. James got Whitaker a landscape-construction job for a “good year, year and a half.” But Whitaker sometimes missed work because of his drug use. On occasion, Whitaker asked for money from James and other family members, and they tried to take care of him. But James believes that the family “turned a blind eye” to Whitaker’s drug use.
3. Lisha Summers Summers described Whitaker’s mother as a “good mom” who did
“the best she could for all of us.” Whitaker was very close to his mother. After their mother became sick, Summers went to work, fixed dinner, and took care of the family. Following their mother’s death, Summers moved the family to Cleveland to avoid separating the family members. Summers worked at a day-care center and “life was kind of rough, but it was family.” Whitaker “seemed to handle” things well, but he was always quiet. McDonald, Summers’s boyfriend, who lived with the family,
started to use drugs and abuse Summers after the move. When Whitaker was eight or nine years old, he witnessed McDonald give Summers black eyes and a busted lip. After living with the family for about a year, McDonald returned to Tennessee. Summers stated that she provided a loving home for Whitaker and his siblings. She said, “With Auntie Martha and then my other siblings, I’d say we raised each other.” She stated that Whitaker was a very smart child and that he did well in school. Summers never saw Whitaker use drugs and believes she was in denial about his drug use. Summers saw less and less of Whitaker as he grew older, and she
believes that was due to his drug use. But Summers said that Whitaker helped their Aunt Martha after she was hurt. He helped her dress and wash her hair when she was unable to raise her arm.
4. Dr. Robert Kaplan Dr. Robert Kaplan, a clinical and forensic psychologist, identified
the following mitigating factors.
a. Witnessing violence against his sister Dr. Kaplan opined that “due to witnessing violence against his
sister at an early age, Mr. Whitaker learned to repress feelings of anger and developed a maladaptive coping system dissociation.” He described dissociation as the “process of blocking feelings out of your mind * * * even your perceptions out of your mind.” According to Dr. Kaplan, dissociation “prevented [Whitaker] from being aware of negative emotions until they reached a point that they disrupted his capacity to control them and conform his behavior to the requirements of the law.” And Dr. Kaplan added that “in the psychological testing that I had administered to Mr. Whitaker * * * the degree of dissociation is extreme. In fact, he’s maybe less than two points below people who actually do have split personalities.” As for the murder, Dr. Kaplan believed that the “actual act of the
violence that he committed against the victim was a manifestation of this repressed anger that just suddenly overwhelmed him.” Whitaker told Dr. Kaplan that he recalled having sex with A.D., but he could not recall the act. Thus, “it was more a reactive type [of] behavior than a planned or a cunning type of event.” Dr. Kaplan concluded that Whitaker “lacked the capacity to control his behavior due to a combination of dissociation and intoxication by cocaine.”
b. Mother’s death Dr. Kaplan stated that as a result of losing his mother and
witnessing domestic violence at an early age, Whitaker developed the following problems: “[b]ed wetting; school behavior problems; rebelliousness and optional behavior; decreased capacity for empathy; reduced ability to control his impulses; [and] devaluation of women and substance abuse.”
{¶ 212} Whitaker devalued women after his mother died and after he witnessed his sister being beaten. He began to view women as “helpless” and as people who “don’t really count.” Dr. Kaplan stated that Whitaker became a womanizer. “He never really developed the capacity to have a long-term intimate relationship with people. And again, this is due to * * * these events that happened in his life.” And the absence of a loving mother affected his ability to have empathy for other individuals.
c. Lack of a positive male role model Whitaker also lacked a positive male role model who could inspire
self-discipline or values that could lead to achievement and better self-control. He was taken from his father at an early age after losing his mother. No other man in Whitaker’s life stepped in as a positive male role model. Even his brothers had substance-abuse and criminal problems. Thus, Whitaker turned to gangs and other individuals as his role models.
d. Move from Tennessee to Cleveland Dr. Kaplan stated that after the move from a small town in
Tennessee to Cleveland, “[Whitaker] and his family were subject to a lot of racist treatment and suffered financial hardship. These stressors affected his psychological development and capacity to regulate his behavior.”
e. Sister’s cancer diagnosis In 2016, Summers developed brain cancer. Dr. Kaplan opined that
her illness was an “additional stressor” that contributed to Whitaker’s inability to control himself.
f. Combination of factors leading to Whitaker’s actions Dr. Kaplan opined that a combination of factors led to Whitaker’s
actions.
Had it not been for the death of his mother at an early age in his life, the lack of a positive male role model in his life, and witnessing domestic violence against his sister, Mr. Whitaker’s life would have taken a different direction and he would not currently be facing capital murder charges.
I’m pretty certain that if these three things didn’t happen, if any of these three things didn’t happen, we wouldn’t be here.
g. Cocaine use Dr. Kaplan stated that “[a]t the time the offenses occurred, Mr.
Whitaker was under the influence of cocaine, which impaired his ability to control his impulses and conform his behavior to the requirements of the law.” Test scores showed that Whitaker has clinically significant problems with substance abuse.
h. Prison records Dr. Kaplan testified that Whitaker’s prison records from the last
time that he was incarcerated showed that he had made “a sincere effort to reform himself by participating in a drug treatment and anger management programs.” He had also participated in GED classes. Dr. Kaplan stated that Whitaker completed mandatory sex-offender treatment and “a deniers program,” which helps an inmate to recognize that his actions were criminal and to accept responsibility for those actions. Whitaker achieved the following goals:
He admitted his guilt for the crime. He accepted responsibility for the crime and victimization. He demonstrated empathy for the victim and other people. He identified what led up to — the factors that led up to the offense. He demonstrated coping skills that would help him prevent relapse and manage his behavior.
{¶ 219} Prison records showed some minor disciplinary problems. Whitaker was once found with marijuana. But he attended classes and teachers said that Whitaker had a good attitude. Whitaker received good performance ratings for his job in food service and in the recreation department. His plan for reentering society following completion of his prison term mentioned that he needed employment education, work on marital-family relations, and continuing support for substance-abuse problems. Nonetheless, it was believed that Whitaker had the right attitude to go back into society.
i. No risk to other inmates or guards if sentenced to life in prison Whitaker refrained from violent behavior in prison and while awaiting trial, and he was never considered a “violence risk” in the prison system. Dr. Kaplan testified that this information showed that if Whitaker is “put away for the rest of his life * * * it’s not likely that he’s going to be a risk to other inmates or to the guards.”
j. No antisocial personality disorder, no paraphilic or pedophilic disorders, and
no preexisting desire for sexual relations with adolescent females Dr. Kaplan stated that Whitaker is a “very troubled man” with “very serious problems” but he is “not a psychopath.” Dr. Kaplan did not diagnose Whitaker with an “antisocial personality disorder because he has no history of a conflict disorder before the age of 15.” Dr. Kaplan testified that the DSM-5 shows that Whitaker does not
qualify for a diagnosis of any paraphilic disorder (difficulty in controlling sexual impulses, voyeurism, flashers, etc.), including a pedophilic disorder (sexual attraction to young children). Testing showed that Whitaker “doesn’t have sexual obsessions” or
“deviant sexual values.” He has “traditional sexual values.” Dr. Kaplan added, “There’s no history in any of the records that I viewed or * * * [from] any of the people interviewed by Miss McDonnell, that showed any attraction to adolescent *63 girls.” Dr. Kaplan opined, “This was an aberrant situation. * * * [H]e’s not someone who normally tries to flirt with younger girls, adolescent girls. He is not someone who tries to pick them up. * * * This is a very unusual event.”
k. Remorsefulness Finally, Dr. Kaplan testified that Whitaker is remorseful for these
crimes. He stated that “[t]he dissociation makes it difficult because — since he can’t remember the actual violence * * * he knows he did it, but he can’t believe he did it.” Dr. Kaplan explained:
[A] conscious part of [Whitaker’s] mind is willingly admitting that he did this and he’s accepting that he’s responsible for this. But the unconscious part of his mind, he still can’t believe he did it. It’s so horrific to him that he can’t process that right now. And in fact, when he does come to his conscious awareness, he becomes depressed and even suicidal. Dr. Kaplan opined that Whitaker’s failure to believe he could
commit these offenses makes him “tell everyone in his family, everyone that he knows, * * * how can they say I did this, they have to prove it beyond a reasonable doubt.” Dr. Kaplan stated that many times defendants will accept responsibility within the legal system but make a denial to family members. Thus, Whitaker tells friends and family members, “I didn’t do it,” to keep their support.
l. Cross-examination During cross-examination, Dr. Kaplan stated that Whitaker initially
denied any recollection of the events but that Whitaker later stated that he was under the influence of drugs and A.D. had wanted to have sexual relations with him. Whitaker later retracted the statement that it was consensual sex.
5. James E. Aiken James Aiken, a prison-confinement consultant, discussed
Whitaker’s potential adjustment to prison life, should he be sentenced to life without possibility of parole. Aiken stated that Whitaker’s vulnerability level in prison is very high, because he is older (45 years old at the time of sentencing), he is a sex offender, and he murdered a child. Whitaker is also a member of a prison gang, the Gangster Disciples, which heightens his risk in prison. Aiken testified that if he were a warden, he would not place Whitaker in the general prison population and that Whitaker would be safer on death row than in the general prison population. Aiken concluded that Whitaker can be managed and that he does
not present an unusual risk of harm to staff or other inmates while “properly confined in the proper security level.” He opined that “the prison system can adequately address Whitaker’s security needs from here until he dies.”
6. Whitaker’s unsworn statement Whitaker made the following unsworn statement:
From the beginning I’ve accepted full responsibility for my actions.
I assisted the detectives as to where to find my clothes and boots I was wearing that day.
I never wanted this to happen, and ever since that day I’ve been feeling regret and remorse.
Through the year I made a lot of phone calls, and in those calls I’ve said things, a lot about things in order to protect my family’s feelings.
I’ve admitted to my guilt to the detectives and to my lawyers. *65 I asked my lawyers not to contest or challenge anything in this case because I really wanted [A.D.’s] family to have closure. I will not try to hide behind drugs or alcohol. I will not pretend or lie because it wouldn’t be fair to the family.
I apologize to the family and the community for my actions. There is no excuse for what I’ve done.
I can’t imagine the pain the family feels, but I know the pain I feel when I had to look at what I’ve done.
If I could go back to that day in January, I’d change everything, but I can’t, so I have to live with each day with the shame, hurt and guilt.
And although the trial is over, the regret and painful memories will remain with me. Just that’s sometimes — that’s just things I can’t shake.
I pray that the family can find peace and she can find rest. C. State’s rebuttal: Dr. Sara West Dr. Sara West, a forensic psychiatrist, interviewed Whitaker and reviewed Dr. Kaplan’s report. She stated that Dr. Kaplan’s testing, in her opinion, actually “indicated a low probability for dissociation.” Dr. West also stated that Whitaker did not mention witnessing domestic violence when she interviewed him. She testified that Whitaker’s time frame for his dissociation changed over the course of his statements to the police and added, “Although anything is possible, it’s highly unlikely that [dissociation] would occur.” She also testified that the evidence suggests that Whitaker did not black out at the time of the offense. Dr. West stated that it would be incredibly difficult to determine that Whitaker would not be facing capital punishment if any one of three things (loss of his mother at an early age, witnessing domestic violence, lack of a positive *66 male role model) had not occurred, because “every event in everyone’s life shapes who they are.” Dr. West testified that Whitaker’s statements were the only
evidence that he was high on cocaine at the time of the offense; nothing in police reports supports that conclusion. Dr. West also disputed Whitaker’s remorsefulness, noting that Whitaker told someone on a phone call from jail that “he would have no remorse for the events should he be released from incarceration.” In reference to his possible release from jail, Whitaker said, “[W]hen I come walking out of this m* * *f* * *, I am going to tell everyone to kiss my * * *. I ain’t going to show no remorse, no nothing.” And as for the victim, Whitaker said, “I kept telling everybody that I never came in contact with this girl.” In discussing her own report, Dr. West testified that Whitaker has no notable psychiatric history. She explained, “Mr. Whitaker did not report any * * * psychotic symptoms. And the way he interacted with me during the interview did not suggest he was experiencing any psychosis.” Dr. West added that Dr. Koblentz, the jail psychiatrist, also “diagnosed Mr. Whitaker with ‘no current psychiatric diagnoses on Axis I,’ * * * the listing point for all major psychiatric diagnoses,” shortly after Whitaker was booked into the county jail. Dr. West diagnosed Whitaker with an “other specified personality
disorder,” saying that he met the criteria for antisocial personality disorder but had not been diagnosed before age 15, and a cocaine-use disorder in a controlled environment.
D. Sentence evaluation Nothing in the nature and circumstances of the offenses is
mitigating. Whitaker forcibly entered a vacant house with A.D. and then raped, tortured, and murdered her with a power drill and other tools. He dragged A.D.’s body into another room and then fled the scene. These are horrific crimes that lack any mitigating features. *67 The statutory mitigating factors include R.C. 2929.04(B)(1) (victim
inducement); (B)(2) (duress, coercion, or strong provocation); (B)(3) (mental disease or defect); (B)(4) (youth of the offender); (B)(5) (lack of a significant criminal record); (B)(6) (the offender was an accomplice only); and (B)(7) (any other relevant factors). Review of the evidence shows that none of these statutory factors is applicable here except R.C. 2929.04(B)(7). First, according to Dr. Kaplan, Whitaker’s problems underlying
these offenses may be traced to his early-life experiences. Whitaker experienced a
disruptive childhood. His mother died when he was young, and his sister moved
the family from a small town in Tennessee to Cleveland. Whitaker was traumatized
by watching his sister’s boyfriend beat and abuse her. He also lacked a positive
male role model during these difficult times. Such evidence is entitled to weight
under R.C. 2929.04(B)(7) but not decisive weight.
See Powell
,
Kaplan testified that due to witnessing violence against his sister, Whitaker learned
to repress his feelings of anger and developed “a maladaptive coping system
dissociation.” Dr. Kaplan opined that dissociation disrupted Whitaker’s capacity
to control his negative emotions and conform his behavior to the requirements of
the law. But Dr. West disputed these findings, stating that the results of testing
indicated “a low probability for dissociation” and that its occurrence was highly
unlikely. Under these circumstances, Dr. Kaplan’s testimony is not entitled to
conclusive significance.
See State v. Kirkland
,
{¶ 239}
Whitaker was described by Dr. Kaplan as a “very troubled man.”
Whitaker could not be diagnosed with an antisocial personality disorder, because
he had no history of a conflict disorder before age 15. However, Dr. West
diagnosed Whitaker with an “other specified personality disorder.” We give weight
to Whitaker’s personality disorder and other mental-health problems under R.C.
2929.04(B)(7).
See State v. Clinton
, 153 Ohio St.3d 422,
Whitaker suffered from substance-abuse problems. Dr. Kaplan stated that
Whitaker was high on cocaine at the time of the offenses. But Dr. West testified
that Whitaker’s own statement was the only evidence that he was high on cocaine
at the time of the offenses. Nonetheless, Whitaker’s history of substance abuse is
entitled to some weight.
See State v. Tibbetts
,
family members.
See State v. Jackson
,
prison life. Such evidence is entitled to weight under R.C. 2929.04(B)(7).
See
State v. Foust
,
during his trial. But these claims are undermined by Whitaker’s calls to friends and
family members from jail in which he indicated otherwise.
See Belton
, 149 Ohio
St.3d 165,
evidence that is entitled to considerable weight. That said, Whitaker raped and murdered 14-year-old A.D. in a vacant house. He then fled the scene and was arrested only after DNA evidence identified him as the perpetrator. Under these circumstances, we conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.
E. Proportionality Having determined that the aggravating circumstances outweigh
the mitigating factors, we must also decide whether the sentence is “excessive or
disproportionate to the penalty imposed in similar cases.” R.C. 2929.05(A).
We find that the death sentence imposed in this case is appropriate
and proportionate to death sentences upheld in similar cases. We have also upheld
the death penalty for aggravated murder during a rape under R.C. 2929.04(A)(7).
See Hunter
,
death. We vacate only the portion of the judgment finding Whitaker guilty of aggravated burglary, and we remand the cause to the trial court for a corrected sentence reflecting our vacation of the aggravated-burglary conviction and the finding of guilt on Count 3 and our dismissal of the death-penalty specifications predicated on aggravated burglary.
Judgment affirmed in part, vacated in part, and *70 reversed in part and cause remanded. O’C ONNOR , C.J., and K ENNEDY , D E W INE , D ONNELLY , and S TEWART , JJ., concur.
B RUNNER , J., concurs, with an opinion.
_________________
B RUNNER , J., concurring. I agree that the convictions and death sentence of appellant, Christopher Whitaker, should be affirmed. I write separately because I disagree with the majority on the issue raised in proposition of law No. XI—whether the trial court erred by refusing to allow evidence of Whitaker’s offer to plead guilty in exchange for a sentence of life without parole to be considered during mitigation. In my view, Whitaker’s plea offer is relevant mitigation evidence and should have been admitted. R.C. 2929.04(B) describes the mitigating factors the jurors were to
consider during the sentencing phase of Whitaker’s trial. In relevant part, it required them to consider “the nature and circumstances of the offense [and] the history, character, and background of the offender,” plus an additional seven factors, the last of which is a catchall provision that required consideration of “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death,” R.C. 2929.04(B)(7). R.C. 2929.04(C) then states that “[t]he defendant shall be given great latitude in the presentation of evidence of the factors listed in division (B) of this section and of any other factors in mitigation of the imposition of the sentence of death.” Notwithstanding the broad nature of these provisions, we have held
that “the trial court can exclude evidence that is not relevant to the jury’s sentencing
decision.”
State v. Dixon
,
evidence that he had offered to plead guilty in exchange for a sentence of life in prison without parole. His counsel argued that the offer was relevant as mitigation evidence because it showed his acceptance of responsibility and genuine remorse. The trial court ruled that the evidence was inadmissible, however, and this court agrees. In my view, Whitaker’s plea offer was relevant mitigation
evidence. Evid.R. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Whitaker’s offer can be viewed as making it more likely that he accepted responsibility for his crimes. Acceptance of responsibility is mitigating because it reflects positively on his “character,” a factor the jury was required to consider under the main paragraph of R.C. 2929.04(B). It also falls within the catchall provision of R.C. 2929.04(B)(7), as it is “relevant to the issue of whether the offender should be sentenced to death.” Counsel for the state even conceded at oral argument that it is possible that a reasonable juror may find Whitaker’s offer mitigating under R.C. 2929.04(B). I find it particularly compelling that Whitaker made his acceptance
of responsibility a central theme of his case before the jury. During voir dire, for example, his attorney emphasized to potential jurors that Whitaker had taken responsibility for his actions: “I want to tell you something else. We’re not contesting liability in this case. Mr. Whitaker is responsible for taking the life of this child. * * * [T]hat is information that you need to have right now.” Counsel relied on this theme again in their opening statement:
[A]t Mr. Whitaker’s direction * * * I’m standing here today telling you * * * we’re not contesting that. We’re not contesting that he did it.
We’re not contesting that he’s taking responsibility for the awful things that you saw in here in opening statement, the awful things you saw on the jury view, and unfortunately the awful things you’re about to see over the next several days.
Whitaker’s attorneys continued to maintain this approach even at the conclusion of the trial. During closing arguments, counsel stated:
Look, at the outset of this case, during voir dire, we came to you, we waved that white flag and we told you we’re not challenging whether or not he’s responsible for taking her life.
There’s nothing in this world that could justify the events that occurred in this case.
There may be explanations as to what occurred, but we still stand by no justifications and no excuses. And he knows that, which is the reason why he said during the course of that interview, he did not want a circus. He acknowledged his wrongdoing and said give me my time, or what I deserve.
The reason for defending Mr. Whitaker in this manner which we have, but we’re not challenging witnesses and the evidence, because he required it.
Mr. Shaughnessy and I feel like fish out of water.
It’s counterintuitive not to challenge witnesses, not to challenge their credibility. But in this case we’re required to follow our client’s instructions. And it’s the right thing to do. It really is *73 in this case. And I’m glad that Mr. Whitaker gets that. We cannot defend him in this way without his approval.
Acceptance of responsibility likewise remained a defense theme during the mitigation phase. In his unsworn statement, Whitaker said:
From the beginning I’ve accepted full responsibility for my actions.
I assisted the detectives as to where to find my clothes and boots I was wearing that day.
I never wanted this to happen, and ever since that day I’ve been feeling regret and remorse.
Through the year I made a lot of phone calls, and in those calls I’ve said things, a lot about things in order to protect my family’s feelings.
I’ve admitted to my guilt to the detectives and to my lawyers. I asked my lawyers not to contest or challenge anything in this case because I really wanted the DeFreeze family to have closure.
I will not try to hide behind drugs or alcohol. I will not pretend or lie because it wouldn’t be fair to the family.
I apologize to the family and the community for my actions. There is no excuse for what I’ve done.
I can’t imagine the pain the family feels, but I know the pain I feel when I had to look at what I’ve done.
If I could go back to that day in January, I’d change everything, but I can’t, so I have to live with each day with the shame, hurt and guilt.
And although the trial is over, the regret and painful memories will remain with me. Just that’s sometimes—that’s just things I can’t shake.
Whitaker’s counsel emphasized the theme again in their closing statement in mitigation:
It’s no defense to what happened here. It’s no defense to what we saw, that he said he did it. It’s no excuse or justification. But the fact that he said he did it, the fact that he showed remorse, the fact that he waived his Fifth Amendment right and agreed that he did it, the fact that he didn’t want to turn this into a circus, the fact that he sent the police to find more evidence against him, that’s mitigation * * *. Whitaker’s acceptance of responsibility was therefore a major
approach to his defense throughout the proceedings before the trial court. The jurors were asked to consider evidence supporting that theme—for example, evidence that he accepted responsibility for his actions even on the day he was arrested by cooperating with the officers investigating the case. Whitaker’s plea offer clearly supported the argument that he accepted responsibility; the offer was therefore relevant to mitigation and should have been admitted. Decisions from other jurisdictions support this view. See United
States v. Fell
, 372 F.Supp.2d 773, 784-785 (D.Vt.2005) (holding that the
defendant’s willingness to enter into a plea of guilty was evidence of the
defendant’s state of mind and should be presented to the jury);
Johnson v. United
States
,
two prior decisions of this court,
Dixon
,
applied. First, the decision provided no reasoning or discussion about whether a
defendant’s plea offer bears on his acceptance of responsibility or, more generally,
whether it should be properly considered in a capital case. Neither did the decision
in
Sowell
. In
Dixon
, we cited two prior decisions in which we held that a similar
plea offer
made by the prosecution
was not relevant mitigation evidence.
See State
v. Sneed
,
the opposite conclusion in reviewing the appeal of Dixon’s codefendant, Timothy
Hoffner.
See State v. Hoffner
,
the decisions were based on the particular facts before the court. The fact that Dixon and Hoffner involved codefendants and were decided just three months apart strengthens that conclusion. The facts of the present case make it distinguishable from Dixon .
As previously explained, Whitaker’s acceptance of responsibility was a central theme of his case from voir dire through sentencing. The fact that he offered to plead guilty makes it more likely than not—as Evid.R. 401 requires for the admission of relevant evidence—that he did, in fact, accept responsibility for his crimes. The majority categorically rejects the idea that an offer to plead
guilty can show acceptance of responsibility, at least when the offer is conditioned
on the state agreeing not to pursue the death penalty. But the case cited by the
majority,
Owens v. Guida
,
the state’s agreeing not to pursue the death penalty is better understood and
explained as affecting the strength of the evidence, not its relevance. In
Hoffner
,
for example, we gave “only minimal weight” to Hoffner’s plea offer because
“Hoffner knew that the evidence against him was overwhelming.”
Id.
, 102 Ohio
St.3d 358,
to consider the weight and import of Whitaker’s plea offer during the trial’s
mitigation phase. This error may be cured, however, through this court’s
independent sentence evaluation.
See State v. Montgomery
,
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Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin and Mahmoud Awadallah, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Jeffrey M. Gamso and Erika B. Cunliffe, Assistant Public Defenders, for appellant.
_________________