State v. Richey

OPINIONS OF THE SUPREME COURT OF OHIO

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The State of Ohio, Appellee, v. Richey, Appellant.

[Cite as State v. Richey (1992), Ohio St.3d .]

Criminal law -- Aggravated murder -- Death penalty upheld,

when.

(No. 90-338 -- Submitted March 17, 1992 -- Decided August

12, 1992.)

Appeal from the Court of Appeals for Putnam County, No.

12-87-2.

Around 4:15 a.m., on June 30, 1986, in Columbus Grove,

Ohio, a raging fire broke out in Hope Collins's second-floor

apartment, killing Cynthia Collins, Hope's two-year-old

daughter. Less than an hour before, Hope had left her

apartment after Kenneth T. Richey, defendant-appellant, agreed

to baby-sit Cynthia. Circumstantial evidence established that

while in Hope's apartment, Richey had spread gasoline and paint

thinner around the apartment and ignited it.

Richey, Hope, Peggy Price, Candy Barchet, Richey's

ex-girlfriend, and a variety of other witnesses to these events

lived at the Old Farm Village Apartments in Columbus Grove.

Peggy and Hope lived in adjacent second-floor apartments, and

Candy lived directly below Hope. All three apartments were in

Building or Section "A" at Old Farm Village. Candy and her

infant son moved into their apartment around June 15, and she

met Richey. Within a few days, Candy and Richey formed a

sexual relationship, and Richey frequently told Candy he loved

her and "would kill any other guys" she was with.

On June 24, Richey learned that Candy had just been in bed

with John Butler, and Richey pulled a knife on Butler. In

response, Butler "bounced him around the room a little bit."

Just after that fracas, Richey broke his hand by punching a

door, requiring a splint.

On Sunday evening, June 29, Candy took her new boyfriend,

Mike Nichols, to a party in Peggy's apartment; during the

party, Candy kissed Nichols openly and told Richey that she

wanted to date Nichols. Richey became upset at this news.

When Candy went home, around 1:00 a.m., she asked Nichols to

spend the night with her, which he did.

That night, Richey wore his Marine Corps camouflage

fatigues and combat boots, and he still had his right hand

bandaged in a splint. Some witnesses reported Richey was

intoxicated. Jeffrey Kezar recalled Richey saying, "If I can't

have her [Candy], nobody else can."

Richey told several persons that Building "A" would burn

that night and he would use his Marine training to do that.

Robert Dannenberger described Richey as "very upset" and said

Richey threatened to blow the place up since he had "learned

how to do explosives" in the Marines. Peggy Price became

upset, and Richey told her, "Well, instead of blowing it up,

I'll torch A Section." Price recalled that Richey said,

"Before the night is over, part of A Building is going to burn

down." Shirley Baker also recalls Richey saying, "A Building

was going to burn * * *." Juanita Altimus, while just outside

her own apartment, overheard Richey say on the landing,

"Building A was going to burn tonight."

By 2:00 a.m., the party was breaking up, and Richey kept

asking Hope if he could spend the night on her sofa. Hope

refused. Around 2:20 a.m., June 30, Richey offered to steal

some flowers for Peggy from a greenhouse across the street, but

Peggy told Richey not to bring them to her.

Between 3:00 and 3:30 a.m., Dennis Smith drove up and

asked Hope to go with him. Hope replied she did not have a

baby-sitter, but Richey said, "Well, I'll keep an eye on her

[Cynthia], if you'll let me sleep on your couch." A neighbor

also overheard Hope say to Richey, "Go upstairs with Scootie

[Cynthia's nickname] -- she's asleep -- but don't lock the door

because I can't get back in because I don't have a key."

Around 4:15 a.m., neighbors reported bright orange flames

and smoke coming out of the Collins apartment, and the fire

department responded. Firemen saw several feet of flames from

the apartment and deck curl up over the roof. A resident and a

fireman both started into the apartment, but the heat and fire

were too intense. A fireman then went back in, with oxygen,

but he could not find Cynthia and soon ran out of oxygen.

Ultimately, several firemen, with fire hoses and oxygen

masks, succeeded in removing Cynthia's body from her burning

bedroom. Cynthia died from asphyxia related to smoke

inhalation.

When the firemen arrived, Richey was either at the Collins

apartment or he arrived shortly thereafter; he was screaming

that a child was still inside. One fireman saw him coming out

of the apartment, helped him up, and had to restrain him to

keep him from going back in. Richey was combative,

argumentative, and interfered with efforts to fight the fire

and rescue Cynthia. Two deputy sheriffs overpowered Richey and

turned him over to Police Chief Thomas Miller to keep him out

of the way.

During the fire, Richey asked Nichols, "Why don't we

finish it now, since you think you're so bad[?]" Richey also

asked Candy if the fire had scared her. When she replied it

had, Richey told her, "if he couldn't have me, that nobody

would * * *." Altimus reported that Richey, as he looked over

the fire damage, drank a beer, laughed, and said, "It looks

like I did a helluva good job, don't it."

Richey admitted that he had earlier gotten two plants from

the K & J Greenhouse for Candy, and police found those plants

outside Candy's apartment. The K & J owner identified them as

having been stolen from his greenhouse. Richey had also

offered to steal two plants for Peggy that evening. The K & J

owner confirmed that paint thinner and gasoline were kept in

two unlocked storage sheds. Gasoline and paint thinner could

have been stolen from these sheds; the owner did not know if

any was missing.

Assistant State Fire Marshal Robert Cryer concluded from

the physical evidence and burn patterns that an accelerant had

been used. An accelerant had been poured on the apartment's

wooden deck, the fire's point of origin, as well as the living

room rug. A smoke detector had been pulled from the ceiling

before the fire. The fire was a very fast, hot, intense fire

because of the accelerant.

Gregory DuBois, a consulting engineer, agreed that the

fire had been caused by arson and that accelerants had been

used. One rug sample from the Collins apartment contained

gasoline, and another rug sample revealed paint thinner. Wood

chips from that apartment's deck also contained paint thinner.

However, laboratory tests failed to reveal any accelerants on

Richey's fatigues or boots.

Chief Miller interviewed Richey as a witness on the

morning of June 30 and also obtained his statement in the

afternoon after advising him of his rights. By July 1, the

investigation had focused on Richey, and police arrested Richey

for arson and took further statements after advising him of his

rights. Police tape-recorded an interview of Richey on July

1. Fire Marshal Cryer and Assistant Prosecuting Attorney Randy

Bassinger participated in that interview.

In these statements, Richey maintained that he had been

drunk on June 30 and did not remember much. However, he denied

starting the fire or knowing how it started. He also denied

that Hope had asked him to baby-sit Cynthia, and claimed that

he had been at his father's apartment when the fire began.

Richey did admit that he knew Cynthia was in Hope's apartment;

he had stopped and looked in on her while she was sleeping

during the party. Richey also claimed that he had secret ways

with witnesses so they would not testify against him. In a

later statement, he said he would cut the prosecutor's throat.

A grand jury indicted Richey for aggravated murder with a

specification alleging murder in the course of arson,

aggravated arson, breaking and entering (the greenhouse),

involuntary manslaughter, and child endangering. A panel of

three judges convicted Richey of all charges, save the

manslaughter charge, which was dropped. Following a

presentence investigation, mental evaluation, and mitigation

hearing, the panel sentenced Richey to death for aggravated

murder and consecutive prison terms for the other offenses.

The court of appeals affirmed the convictions and sentence.

Daniel R. Gerschutz, Prosecuting Attorney, for appellee.

Randall M. Dana, Ohio Public Defender, Jane P. Perry and

Kevin L. Fahey, for appellant.

Moyer, C.J. We have reviewed appellant's twenty-three

propositions of law, independently assessed the evidence

relating to the death sentence, balanced the aggravating

circumstance against the mitigating factors, and compared the

sentence to those imposed in similar cases. As a result, we

affirm the convictions and sentence of death.

I

Evidence of Threats

In his first proposition of law, Richey argues that

admitting evidence of his threats destroyed the

constitutionally required reliability and fairness of his

trial and sentence. This evidence included the following.

Richey told Deputy Roy Sargent on November 19 that "Randy

Bassinger [the prosecutor] was a dead man" and that "whoever

testified against him had better hope he's six feet under." On

August 17, Richey told Deputy Mike Ball to take a message to

Randy Bassinger, "that when he got out he was going to cut his

throat."

While in pretrial confinement, Richey initiated

conversations with his jailers about the offenses charged

against him. Richey's threats were simply part of those

conversations. Although Richey moved to suppress these

statements, he did not object specifically to evidence of the

threats. Hence, the issue is waived except for plain error.

State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364

N.E.2d 1364; State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d

178, 372 N.E.2d 804.

Richey's threats reflect a consciousness of his guilt,

similar to evidence of flight to avoid prosecution, or efforts

made to cover up a crime or intimidate witnesses. See State v.

Eaton (1969), 19 Ohio St.2d 145, 48 O.O.2d 188, 249 N.E.2d 897

(flight from justice may indicate a consciousness of guilt);

Cleveland v. McNea (1952), 158 Ohio St. 138, 142, 48 O.O. 68,

70, 107 N.E.2d 201, 203 (suppression of adverse evidence

constitutes a prejudicial circumstance of much weight); State

v. Huffman (1912), 86 Ohio St. 229, 99 N.E. 295; Moore v. State

(1853), 2 Ohio St. 500; 2 McCormick on Evidence (4 Ed. 1992),

Sections 263, 265; 2 Wigmore on Evidence (Chadbourn Rev. 1979

and 1991 Supp.), Sections 273, 276, and 278.

However, even if we were to find the evidence improper, no

plain error is apparent. The circumstantial evidence against

Richey was compelling in view of his explicit threat that

Building "A" would burn that night, his motive and opportunity

to start the fire, and the other circumstances. In State v.

Bayless (1976), 48 Ohio St.2d 73, 106, 2 O.O.3d 249, 267, 357

N.E.2d 1035, 1056, vacated in part (1978), 438 U.S. 911, 98

S.Ct. 3135, 57 L.Ed.2d 1155, we found evidence about threats

against deputies to be harmless error even though wrongfully

admitted, over objection, in an aggravated murder prosecution.

Additionally, in a bench trial, the court must be presumed to

have "'considered only the relevant, material, and competent

evidence in arriving at its judgment unless it affirmatively

appears to the contrary.'" State v. Post (1987), 32 Ohio St.3d

380, 384, 513 N.E.2d 754, 759.

In Proposition of Law II, Richey argues that the judges of

the panel, having been persuaded at the trial's outset that

Richey was dangerous, should have disqualified themselves. At

the trial, the prosecutor moved that Richey's hands and feet be

shackled. However, the panel ordered Richey's feet shackled

but left his hands free.

Admittedly, "no one should be tried while shackled, absent

unusual circumstances." State v. Kidder (1987), 32 Ohio St.3d

279, 285, 513 N.E.2d 311, 318. However, shackling is left to

the trial court's sound discretion. State v. Woodards (1966),

6 Ohio St.2d 14, 23, 35 O.O.2d 8, 13, 215 N.E.2d 568, 576. In

this case, defense counsel did not object to the shackling, and

Richey had repeatedly threatened to kill the prosecutor and

witnesses against him. Under the circumstances, we find no

prejudicial error. Compare Woodards v. Cardwell (C.A.6, 1970),

430 F.2d 978, with Kennedy v. Cardwell (C.A.6, 1973), 487 F.2d

101; Annotation (1979 and 1991 Supp.), 90 A.L.R.3d 17. On its

own motion, the court ruled that deputies could wear firearms

and could search anyone entering the courtroom, but those

orders reflected routine housekeeping functions. See R.C.

2945.03.

Even though the judges had been exposed to evidence about

Richey's threats, they did not need to recuse themselves.

Richey accepted the panel and raised this issue neither at

trial nor before the court of appeals. Hence, we need not

consider this issue. State v. Williams, supra; State v. Price

(1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772.

State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d

272, is distinguishable. Gillard involved a ruling on ex parte

evidence in a closed hearing under Crim. R. 16(B)(1)(e). Also,

Gillard did not announce a per se prejudice rule. In this

case, as in Gillard, the trial judges are presumed not to have

improperly used the evidence about threats in their subsequent

deliberations. State v. Post, supra. Nothing in the record

indicates they did so, and the evidence of guilt is otherwise

compelling. See discussion, Part V.

Since the evidence about Richey's threats was included in

the report of the presentence investigation, it could be

considered during sentence deliberations. Such evidence

relates to an accused's "history, character, and background."

R.C. 2929.04(B). Criminal wrongdoing, even without

convictions, is part of an accused's social history and thus

properly included in a presentence investigation report. State

v. Cooey (1989), 46 Ohio St.3d 20, 35, 544 N.E.2d 895, 914;

State v. Hutton (1990), 53 Ohio St.3d 36, 559 N.E.2d 432,

paragraph one of the syllabus.

II

Presentence Investigation

In Proposition of Law III, Richey argues that the

presentence investigation report ("PSI") erroneously included a

letter he wrote. The trial court had earlier suppressed that

letter as not relevant at the guilt or penalty phase.

While in pretrial custody, Richey wrote to a friend in

Scotland that police in the United States did not scare him.

The letter was quoted in the PSI as follows:

"If one ever pulls a gun on me he'd better shoot to kill.

* * * Remember that day when I shot Gog's in the head with

your gun, I laughed so hard I almost ripped my sides! [If the

police in Scotland] ever found out about 1/2 the stuff we done

they'd bring back the death penalty just for us! * * * If

they just give me prison time they better hope to hell I die in

there, cause when I get out I won't stop hunting them all down

until everyone who is involved in this case is dead!"

Arguably that letter was relevant to the sentencing

decision. A PSI is not limited by the strict rules of

evidence. See State v. Greer (1988), 39 Ohio St.3d 236, 254,

530 N.E.2d 382, 402-403. This PSI related to Richey's

"history, character, and background." R.C. 2929.04(B); State

v. Hutton, supra.

Moreover, having failed to object to the PSI, or the

letter's inclusion in the PSI, Richey waived any issue related

to the PSI except for plain error. State v. Cooey, supra, at

35, 544 N.E.2d at 914; State v. Long, supra. No plain error

was involved since the court already knew Richey had threatened

the prosecutor and the trial witnesses. See Part I. Hence,

evidence of these additional threats made little difference and

did not cause a miscarriage of justice.

III

Other Evidence Issues

In his fourth proposition of law, Richey argues that his

rights to a fair trial and effective counsel were violated when

the prosecutor called a defense-retained expert as a state

witness. Dubois, a consulting engineer, agreed with the State

Fire Marshal's opinion that accelerants had been used in the

fire.

The right to the effective assistance of counsel includes

access to defense experts, and the state's use of such

witnesses could infringe an accused's attorney-client

privilege. See Miller v. Dist. Ct. of Denver (Colo. 1987), 737

P.2d 834; State v. Mingo (1978), 77 N.J. 576, 392 A.2d 590;

but, see, Noggle v. Marshall (C.A.6, 1983), 706 F.2d 1408;

Granviel v. Estelle (C.A.5, 1981), 655 F.2d 673; State v.

Pawlyk (1990), 115 Wash.2d 457, 800 P.2d 338.

The prosecutor's use of a defense expert does not violate

an accused's Sixth Amendment right to counsel. Noggle, supra.

Although the prosecutor's use of a defense expert may violate

an accused's attorney-client privilege, Dubois did not disclose

or rely upon any confidential communications here. Instead,

Dubois based his testimony upon the physical evidence, reports,

and photographs of the fire.

By not objecting, Richey waived any attorney-client

privilege as to Dubois. Moreover, no plain error exists; no

manifest miscarriage of justice occurred because Dubois's

testimony made no difference. The Fire Marshal's testimony

that the fire had been caused by arson and accelerants was not

otherwise contradicted. In such cases, the record must reflect

prejudice before reversal is required. See Hutchinson v.

People (Colo. 1987), 742 P.2d 875, 886; United States v. Talley

(C.A.9, 1986), 790 F.2d 1468; State v. Mingo, 77 N.J. at 588,

392 A.2d at 596.

In Proposition of Law VI, Richey argues that the admission

of the Collins carpet into evidence violated his rights because

the physical integrity of the carpet had been compromised. Two

deputy sheriffs recovered the Collins carpet from a trash dump

on July 1, where it had been taken, unknown to investigators,

after the fire. Two samples from this carpet revealed the

presence of gasoline and paint thinner.

The evidence firmly established that the carpet admitted

into evidence was the carpet from the Collins apartment.

Authentication "is satisfied by evidence sufficient to support

a finding that the matter in question is what its proponent

claims." Evid. R. 901(A). The possibility of contamination

goes to the weight of the evidence, not its admissibility. "A

strict chain of custody is not always required in order for

physical evidence to be admissible." State v. Wilkins (1980),

64 Ohio St.2d 382, 389, 18 O.O.3d 528, 532, 415 N.E.2d 303,

308; see State v. Downs (1977), 51 Ohio St.2d 47, 63, 5 O.O.3d

30, 38, 364 N.E.2d 1140, 1150.

Moreover, other evidence established that the arsonist had

used accelerants, including dominant pour patterns to the

burning on the wood deck and living room concrete. An

accelerant was also found in wood chips from the deck floor.

Thus, even if the rug had been wrongfully admitted, other

evidence of arson rendered any error harmless. Crim.R. 52(A).

In Proposition of Law IX, Richey argues that evidence of

his pretrial statements violated his Miranda rights and Sixth

Amendment right to counsel. Richey made several statements to

police about the fire, denying any culpability. In one

statement, Richey admitted he had broken into a greenhouse

across the street and stolen some potted plants. The trial

court denied Richey's motion to suppress, finding no

constitutional violations.

Richey complains first about admission of a statement he

made to Police Chief Miller on the morning of the fire.

However, Miller initially interviewed Richey only as a possible

witness to the fire, and Richey was not under arrest or in

custody. Richey was free to leave as long as he stayed out of

the fire fighters' way. Since no custodial interrogation

occurred, Miller was not required to inform Richey of his

constitutional rights. See Oregon v. Mathiason (1977), 429

U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; Minnesota v. Murphy

(1984), 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409.

Even if a custodial interrogation occurred, any error

would be harmless beyond a reasonable doubt. In this brief

June 30 statement, Richey said nothing about how the fire

started, and the statement could not have harmed him before the

trier of fact.

Around noon, Miller interviewed Richey again, but Miller

then advised him of his Miranda rights before securing a second

statement. On July 1, Richey was advised of his rights twice

when he was arrested.

Richey further complains that his Sixth Amendment rights

were violated by evidence about conversations he had while in

pretrial confinement. On August 17, 1986, Richey threatened

the prosecutor in a conversation with Deputy Mike Ball. On

November 19, Richey made further threats against the prosecutor

and witnesses in a conversation with Deputy Roy Sergeant. In

neither case did the deputies initiate the conversation or

question Richey.

The Miranda safeguards do not preclude admission of this

evidence because Richey initiated the conversations and also

waived his right to have a lawyer present. Hence, the trial

court did not err in declining to suppress Richey's statements.

See Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682,

64 L.Ed.2d 297; Oregon v. Bradshaw (1983), 462 U.S. 1039, 103

S.Ct. 2830, 77 L.Ed.2d 405; Connecticut v. Barrett (1987), 479

U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920.

IV

Prosecutorial Misconduct

In Proposition of Law V, Richey argues that the prosecutor

grievously erred in his final guilt-phase argument. However,

"the touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor." Smith v. Phillips (1982), 455

U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. Accord

State v. DePew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542,

556-557; State v. Johnson (1989), 46 Ohio St.3d 96, 102, 545

N.E.2d 636, 642. Moreover, in a bench trial, trial judges are

presumed to rely only upon relevant, material, and competent

evidence, in arriving at their judgments. State v. Post,

supra, 32 Ohio St.3d at 384, 513 N.E.2d at 759.

The prosecutor did not commit crucial errors. The

prosecutor's reference to Richey as a sociopath or psychopath

was a fair inference based on the evidence. In any event, it

was not prejudicial before a panel of judges. State v. Post,

supra. The prosecutor's varied comments about why accelerants

had not shown up on Richey's clothing also constituted fair

comment. Prosecutors are entitled to latitude as to what the

evidence has shown and what inferences can be drawn therefrom.

State v. Stephens (1970), 24 Ohio St.2d 76, 82, 53 O.O.2d 182,

185, 263 N.E.2d 773, 777; see State v. Byrd (1987), 32 Ohio

St.3d 79, 82, 512 N.E.2d 611, 616.

By referring to Richey's threats, the prosecutor referred

to evidence in the record admitted without objection. The

prosecutor's reference to the helpless victim, who was in a

hopeless situation from which she could not escape, was brief

and not prejudicial. See Payne v. Tennessee (1991), 501

U.S. , 111 S.Ct. 2597, 115 L.Ed.2d 720. Thus, Proposition

of Law V is overruled.

V

Sufficiency of Evidence

In Proposition of Law VII, Richey argues that the

circumstantial evidence at trial did not establish his identity

as the arsonist and killer of Cynthia Collins. Richey argues

the evidence is insufficient because testing failed to show

accelerants on his clothing. However, Richey may not have

spilled any gasoline or paint thinner on his clothing when he

set the fire, or at least not on portions of the clothing

eventually tested. Alternatively, the fatigues seized by the

police on July 1 may not have been those worn by Richey on June

29-30.

Richey challenges the accuracy of the times that Altimus

gave for statements she heard. However, Altimus may have been

simply confused about when she heard Richey. Richey argues

that he could not have set the fire because he was intoxicated

and had a splint on his hand. However, he could still use that

bandaged hand, and the evidence about his intoxication was

conflicting.

In a review for sufficiency, the evidence must be

considered in a light most favorable to the prosecution.

Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560; State v. Davis (1988), 38 Ohio St.3d 361, 365, 528

N.E.2d 925, 930. "* * * [T]he weight to be given the evidence

and the credibility of the witnesses are primarily for the

trier of the facts." State v. DeHass (1967), 10 Ohio St.2d

230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the

syllabus. Murder convictions can rest upon circumstantial

evidence. State v. Nicely (1988), 39 Ohio St.3d 147, 150, 529

N.E.2d 1236, 1239; State v. Apanovitch (1987), 33 Ohio St.3d

19, 27, 514 N.E.2d 394, 402. Indeed, circumstantial evidence

may be more certain, satisfying and persuasive than direct

evidence. State v. Lott (1990), 51 Ohio St.3d 160, 167, 555

N.E.2d 293, 302. Accord State v. Jenks (1991), 61 Ohio St.3d

259, 574 N.E.2d 492.

The evidence against Richey established that he was the

killer and arsonist. Five days before the fire, Richey pulled

a knife on Butler, who had just been in bed with Candy, and

Richey had told Candy he would kill any new boyfriend she

found. At the party, Richey was infuriated because Candy

brought Nichols, kissed him repeatedly, and asked Nichols to

spend the night with her. Dannenberger, Price, and Altimus all

heard Richey say that Building "A" would burn that night, which

Richey said more than once. The fire started three hours later.

The evidence shows that Hope Collins gave Richey access to

her apartment and asked Richey to baby-sit Cynthia, and he

agreed to do so. Moreover, Richey admitted to the police that

he knew Cynthia was in her bedroom, since he had stopped to see

her there during the party. Less than an hour after agreeing

to baby-sit for her, Richey started the fire in Hope's

apartment. Candy's apartment was immediately below Hope's

apartment, and the latter's smoke detector had been ripped out

of the ceiling and was hanging by the wires. Damage to the

smoke detector may have delayed any warning about the fire.

Unrebutted expert witnesses asserted that the fire had

been deliberately started, and that gasoline and paint thinner

had been used as accelerants. Richey had access to a

greenhouse where gasoline and paint thinner were stored; some

of the gasoline and paint thinner could have been missing; and

Richey admittedly had stolen plants from that greenhouse.

Additionally, during the fire, Richey continued to challenge

Nichols to a fight and reasserted to Candy that he would not

let anyone else have her. To Altimus, the elderly neighbor,

Richey bragged that he had done "a helluva good job" as he

laughed and surveyed the fire damage.

The evidence also established Richey's intention to kill

Candy and Nichols. Before the fire, Richey threatened Candy

and any new boyfriend she would acquire. At the party, Richey

specifically threatened to burn Building "A." He then set the

fire in a jealous rage directed at Candy and her new boyfriend.

"It is a fundamental principle that a person is presumed to

intend the natural, reasonable and probable consequences of his

voluntary acts." State v. Johnson (1978), 56 Ohio St.2d 35,

39, 10 O.O.3d 78, 80, 381 N.E.2d 637, 640; State v. Lott,

supra, at 168, 555 N.E.2d at 302.

The fact that the intended victims escaped harm, and that

an innocent child, Cynthia Collins, was killed instead, does

not alter Richey's legal and moral responsibility. "The

doctrine of transferred intent is firmly rooted in Ohio law."

State v. Sowell (1988), 39 Ohio St.3d 322, 332, 530 N.E.2d

1294, 1305. Very simply, "the culpability of a scheme designed

to implement the calculated decision to kill is not altered by

the fact that the scheme is directed at someone other than the

actual victim." State v. Solomon (1981), 66 Ohio St.2d 214,

218, 20 O.O. 3d 213, 216, 421 N.E.2d 139, 142.

Other states agree. Aside from a few states whose

statutes require a different result, "there is a singular

unanimity among the decisions in the overwhelming majority of

the states that such a homicide 'partakes of the quality of the

original act, so that the guilt of the perpetrator of the crime

is exactly what it would have been had the blow fallen upon the

intended victim instead of the bystander.'" Gladden v. State

(1974), 273 Md. 383, 392, 330 A.2d 176, 181. Accord State v.

Julius (1991), 185 W.Va. 422, 408 S.E.2d 1, and cases cited in

Gladden and Julius.

In Wareham v. State (1874), 25 Ohio St. 601, 607, this

court explained the reasons for this principle: "The purpose

and malice with which the blow was struck is not changed in any

degree by the circumstance that it did not take effect upon the

person at whom it was aimed. The purpose and malice remain,

and if the person struck is killed, the crime is as complete as

though the person against whom the blow was directed had been

killed, the lives of all persons being equally sacred in the

eye of the law, and equally protected by its provisions."

A verdict will not be reversed "where there is substantial

evidence upon which a jury could reasonably conclude that all

the elements of an offense have been proven beyond a reasonable

doubt." State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d

340, 383 N.E.2d 132, syllabus. In this case, substantial

evidence existed to sustain all the elements of the offenses

charged, and the panel's verdict stands.

VI

Miscellaneous Guilt Phase Issues

In Proposition of Law VIII, Richey argues that the trial

court failed to minimize the risk of collusion among witnesses

and that, hence, the guilty verdict was not reliable. At the

trial, the court granted Richey's motion to separate witnesses

in accordance with Evid. R. 615. Richey also asked that

witnesses be sequestered from each other and admonished not to

discuss their testimony after they testified. The trial court

denied that motion, ruling that possible discussion among

witnesses could be tested on cross-examination.

R.C. 2945.03 specifies the right of a trial judge in a

criminal trial to control the trial proceedings. Orders

relating to witnesses are entrusted to the sound discretion of

the trial court.

At trial, Richey failed to demonstrate any need for the

measures he requested. Richey could question witnesses during

cross-examination about any prior discussions. Richey also

fails to cite specific instances of preventable discussions, or

any prejudice from the lack of such orders, or any authority

requiring such orders. Thus, Proposition of Law VIII lacks

merit.

In Proposition of Law X, Richey argues that the trial

court erred by not severing count three, the break-in at the K

& J Greenhouse, from the other offenses. Richey argues that

this offense was not related to the arson. However, the law

favors joining multiple offenses in a single trial under

Crim.R. 8(A). See State v. Lott, supra, at 163, 555 N.E.2d at

298; State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d

313, 315, 421 N.E.2d 1288, 1290. The K & J break-in was an

integral part of the arson and thus part of "a common scheme or

plan" or "a course of criminal conduct" under Crim.R. 8(A).

Richey broke into the K & J Greenhouse, located across the

street from the apartment complex, in the hours before the

arson. Moreover, the break-in explained Richey's access to

gasoline and paint thinner, which other evidence demonstrated

were the accelerants used in the arson.

Even though joinder was possible, Richey argues that the

trial court should have severed count three from the others

under Crim.R. 14. However, Richey has the burden to establish

prejudice to his rights in accordance with Crim.R. 14. State

v. Torres, supra, syllabus; State v. Lott, supra, at 163, 555

N.E.2d at 298; State v. Roberts (1980), 62 Ohio St.2d 170, 175,

16 O.O.3d 201, 204, 405 N.E.2d 247, 251.

Richey failed to establish prejudice. Evidence of the

joined crime, the break-in, was simple and direct and thus not

possibly confusing. See State v. Lott, supra, at 163, 555

N.E.2d at 298; State v. Franklin (1991), 62 Ohio St.3d 118,

122, 580 N.E.2d 1, 6. Moreover, the panel of judges could not

have confused the separate offenses. State v. Lott, supra, at

164, 555 N.E.2d at 298.

Additionally, evidence of that break-in would have been

admissible, under Evid.R. 404(B), even if that offense had not

been joined. Proof that Richey broke into the greenhouse

established that he had the opportunity to discover and steal

the paint thinner and gasoline stored there. Access to these

accelerants was also part of his preparation to burn Building

"A." See State v. Jamison (1990), 49 Ohio St.3d 182, 552

N.E.2d 180; State v. Broom (1988), 40 Ohio St.3d 277, 282, 533

N.E.2d 682, 690. Proposition of Law X lacks merit.

In Proposition of Law XIII, Richey argues that the state's

failure to record grand jury testimony violated his due process

and fair trial rights, necessitating reversal. Richey

correctly points out that "[p]ursuant to Crim. R. 22 grand jury

proceedings in felony cases must be recorded." State v.

Grewell (1989), 45 Ohio St.3d 4, 543 N.E.2d 93, syllabus.

At trial, Richey expressed an interest in grand jury

testimony only to avoid unnecessary voir dire of jurors.

Richey subsequently waived a jury trial and therefore abandoned

this basis for that request. On appeal, Richey asserts for the

first time that he needed the transcripts to explore possible

inconsistent statements by witnesses. However, Richey

established no basis at trial for any particularized need, and

his general assertions do not establish particularized need

now. "Grand jury proceedings are secret, and an accused is not

entitled to inspect grand jury transcripts * * * unless the

ends of justice require it and there is a showing by the

defense that a particularized need for disclosure exists * * *."

State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420

N.E.2d 982, paragraph two of the syllabus.

Therefore, Richey was not entitled to the transcripts,

even if they existed. The error in failing to record the

testimony is harmless. See State v. Grewell, supra, at 9, 543

N.E.2d at 98; State v. Wickline (1990), 50 Ohio St.3d 114, 122,

552 N.E. 2d 913, 922.

In Proposition of Law XIV, Richey argues for reversal

because the trial court failed to state essential findings

under Crim.R. 12(E) when it denied Richey's motions to suppress

his pretrial statements. However, Crim.R. 12(E) does not

control because Richey did not request factual findings. "[I]n

order to invoke the rule, the defendant must request that the

court state its essential findings of fact in support of its

denial of a motion." State v. Benner (1988), 40 Ohio St.3d

301, 317, 533 N.E.2d 701, 718; see Bryan v. Knapp (1986), 21

Ohio St.3d 64, 21 OBR 363, 488 N.E.2d 142. Moreover, the

evidence necessitated the trial court's decision not to

suppress the statements. Any error would be harmless. See

Part III.

In Proposition of Law XVI, Richey argues that his rights

to a complete record, the effective assistance of counsel, and

meaningful appellate review were compromised because the visit

to the crime scene was unrecorded. However, the trial court

asked counsel before the visit, "Do you have any problem

waiving the presence of the court reporter?" The prosecutor

said he did not, and defense counsel said nothing. At trial,

neither counsel asked the court to describe the visit.

R.C. 2945.16 authorizes a view of a crime scene, and the

trial court is vested with broad discretion in such matters.

State v. Zuern (1987), 32 Ohio St.3d 56, 58, 512 N.E.2d 585,

588. A view of a crime scene is neither evidence nor a crucial

stage in the proceedings. See State v. Tyler (1990), 50 Ohio

St.3d 24, 38, 553 N.E.2d 576, 593; Snyder v. Massachusetts

(1934), 291 U.S. 97, 108-109, 54 S.Ct. 330, 333, 78 L.Ed. 674,

679-680. The trial panel must be presumed to know and apply

that principle. State v. Post, supra. Furthermore, Richey has

not supplemented the record, pursuant to App.R. 9(C) or 9(E),

in an effort to show prejudice from the lack of recording. The

court cannot presume prejudice from an unrecorded visit to a

crime scene. State v. Watson (1991), 61 Ohio St.3d 1, 15, 572

N.E.2d 97, 109; State v. Tyler, supra, at 38, 553 N.E.2d at 593.

VII

Ineffective Assistance of Counsel

In Proposition of Law XV, Richey argues that his counsel

ineffectively represented him, thereby depriving him of his

Sixth Amendment rights. Reversal on this ground requires that

the defendant show, first, "that counsel's performance was

deficient" and, second, "that the deficient performance

prejudiced the defense" so as to deprive the defendant of a

fair trial. Strickland v. Washington (1984), 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.

Richey complains first that his counsel failed to object

to evidence about his threats to the prosecutor and witnesses.

However, this evidence was arguably admissible and, in any

event, made no difference at trial. See Part I. Richey also

complains that his counsel did not attempt to disqualify the

trial panel. However, counsel's tactical choice not to do so

was within the range of professional discretion and cannot be

second-guessed on appeal. His counsel could also properly

choose not to object to the presentence report. See

Strickland, supra, at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

The prosecution's use of the defense's arson expert as a

state witness made no difference in view of the uncontradicted

evidence of arson and accelerants. Counsel had moved to

suppress Richey's pretrial statements, and did not fail in any

essential duty by not asking for findings under Crim.R. 12(E),

since those statements were properly admitted into evidence.

The trial court properly sentenced Richey on different counts;

hence, his counsel did not perform deficiently by not objecting

to the imposed sentences.

In sum, Richey's counsel continued to function as the

"counsel" guaranteed him by the Sixth Amendment. Moreover, no

reasonable probability existed "that, were it not for counsel's

errors, the result of the trial would have been different."

State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373,

paragraph three of the syllabus. The prosecution had a strong

case against Richey.

VIII

Constitutionality

We have previously rejected Richey's constitutional

challenges in Propositions of Law XX and XXI to Ohio's

proportionality review. See State v. Jenkins (1984), 15 Ohio

St.3d 164, 176, 15 OBR 311, 321, 473 N.E.2d 264, 278; State v.

Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383,

paragraph one of the syllabus. Despite Richey's claims in

Proposition of Law XXII, Ohio's felony-murder statute is

constitutional. See State v. Henderson (1988), 39 Ohio St.3d

24, 528 N.E.2d 1237, paragraph one of the syllabus. Despite

Richey's claims in Proposition of Law XXIII, Ohio's law meets

constitutional requirements for death penalty statutes. State

v. Combs (1991), 62 Ohio St.3d 278, 291, 581 N.E.2d 1071, 1082;

State v. Steffen, supra, 31 Ohio St.3d at 125, 31 OBR at 285,

509 N.E.2d at 396; State v. Maurer (1984), 15 Ohio St.3d 239,

15 OBR 379, 473 N.E.2d 768.

IX

Sentencing Errors

In Proposition of Law XI, Richey argues that imposing

separate sentences for aggravated arson and aggravated murder

violates R.C. 2941.25 and constitutional guarantees. In

Proposition of Law XII, Richey pursues these same arguments in

seeking to overturn separate sentences imposed for aggravated

murder and endangeringa child.

State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526

N.E.2d 816, 817, noted:

"This court has set forth a two-tiered test to determine

whether two crimes with which a defendant is charged are allied

offenses of similar import. In the first step, the elements of

the two crimes are compared. * * * In the second step, the

defendant's conduct is reviewed to determine whether the

defendant can be convicted of both offenses." (Emphasis sic.)

See, also, State v. Mitchell (1983), 6 Ohio St.3d 416, 418, 6

OBR 463, 464, 453 N.E.2d 593, 594; State v. Logan (1979), 60

Ohio St.2d 126, 128, 14 O.O.3d 373, 374, 397 N.E.2d 1345, 1348.

When the elements are compared, aggravated murder and

aggravated arson are not allied offenses of similar import

within the meaning of R.C. 2941.25. Aggravated murder requires

purposefully causing the death of another while committing one

of nine specified felonies, of which aggravated arson is only

one. Moreover, aggravated arson does not require a purposeful

killing; instead, it requires a substantial risk of physical

harm by fire or explosion. Thus, "[t]he two offenses are not

prerequisites, one for the other. To consummate either

offense, the other need not by definition be committed." State

v. Moss (1982), 69 Ohio St.2d 515, 520, 23 O.O.3d 447, 450, 433

N.E.2d 181, 186. See, also, State v. Bickerstaff (1984), 10

Ohio St.3d 62, 10 OBR 352, 461 N.E.2d 892; State v. Willey

(1981), 5 Ohio App.3d 86, 5 OBR 200, 449 N.E.2d 471 (aggravated

arson and involuntary manslaughter are separately punishable).

Richey's Proposition of Law XII also lacks merit. Child

endangering under R.C. 2919.22(A) and aggravated murder are not

allied offenses of similar import. The elements of child

endangering are the defendant's custody or control of a child

under eighteen and his creation of a substantial risk to the

health or safety of the child by violating a duty of care or

protection. Aggravated murder is a purposeful killing in the

course of one of nine specified felonies, none of which is

child endangering. These offenses have entirely different

elements. Cf. State v. Anderson (1984), 16 Ohio App.3d 251, 16

OBR 275, 475 N.E.2d 492 (child endangering and felonious

assault are not allied offenses of similar import).

In Proposition of Law XVII, Richey complains the trial

court erred in not giving any weight to relevant mitigation

evidence. In Proposition of Law XIX, Richey argues the court of

appeals failed to individually consider his particular

character and family background.

Richey presented a variety of evidence concerning his

personal history, character and background. Also, several

mental health professionals concluded that Richey suffered from

borderline and antisocial personality disorders. Richey

reasons that this evidence was strongly mitigating and that the

trial court and court of appeals erred by imposing a death

sentence.

Contrary to Richey's claims, courts need not give weight

to relevant mitigation evidence simply because they must

consider such evidence under Supreme Court precedents. See

Eddings v. Oklahoma (1982), 455 U.S. 104, 102 S.Ct. 869, 71

L.Ed.2d 1; Skipper v. South Carolina (1986), 476 U.S. 1, 106

S.Ct. 1669, 90 L.Ed.2d 1. What weight to be given mitigation

evidence is necessarily an individual decision by the fact

finder. "* * * The fact that an item of evidence is admissible

under R.C. 2929.04(B)(7) does not automatically mean that it

must be given any weight." State v. Steffen, supra, paragraph

two of the syllabus. See, also, State v. Stumpf (1987), 32

Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus.

At times, we have assigned little or no weight to evidence

of personality disorders or family background; hence, the trial

court did not err when declining to give those factors any

weight. See State v. Cooey, supra, at 41, 544 N.E.2d at 919;

State v. Van Hook (1988), 39 Ohio St.3d 256, 263, 530 N.E.2d

883, 889-890.

Richey's Proposition of Law XIX also lacks merit. The

court of appeals did not err when it referred to millions of

persons with backgrounds similar to Richey's. By so doing, the

court simply reflected its view that his family background was

not mitigating. We have used similar reasoning. See State v.

Dickerson (1989), 45 Ohio St.3d 206, 218, 543 N.E.2d 1250,

1261; State v. Broom, supra, at 294, 533 N.E.2d at 701.

The court of appeals' written opinion demonstrates that

the court performed its constitutional obligation of giving

"individualized consideration" to the appropriate penalty for

Richey. Lockett v. Ohio (1978), 438 U.S. 586, 605, 98 S.Ct.

2954, 2965, 57 L.Ed.2d 973, 990; Eddings v. Oklahoma (1982),

455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1. Moreover, our

independent evaluation of the evidence cures any sentencing

errors by the trial court or the court of appeals. See Clemons

v. Mississippi (1990), 494 U.S. 738, 110 S.Ct. 1441, 108

L.Ed.2d 725; State v. Lott, supra; State v. Landrum (1990), 53

Ohio St.3d 107, 559 N.E.2d 710.

X

Sentence Evaluation

In Proposition of Law XVIII, Richey argues that his death

sentence was inappropriate based upon residual doubt, the

admission of irrelevant evidence of threats, and overwhelming

mitigation evidence. Richey does not dispute, and we find,

that the aggravating circumstance, that the murder occurred

during an aggravated arson, was proved beyond a reasonable

doubt.

Richey presented extensive mitigating evidence that he

suffered "borderline" and "antisocial" personality disorders.

According to Dr. Leena Puhakka, a psychologist, Richey

displayed classic symptoms of those personality disorders. Dr.

Puhakka found Richey functioned at the emotional level of a

ten- or eleven-year-old. Dr. Antoine Demosthene, a

psychiatrist, found no evidence of psychosis or mental disease,

although Richey was very socially maladjusted, and suffered

antisocial personality disorder.

Dr. William McIntosh, a psychologist, testified that

Richey frequently lied to manipulate the results of mental

evaluations. He stated that Richey had come from a chaotic

family background, had an early history of violence and drug

abuse, and displayed erratic behavior and poor impulse

control. Although not psychotic, Richey did have mental

disorders, according to Dr. McIntosh.

Dr. Thomas Sherman, a board-certified psychiatrist

testifying by deposition for the state, found Richey "extremely

impulsive, self-centered, hedonistic." He stated that Richey

did not display any psychosis or inability to understand the

criminality of his acts or to refrain from those acts.

Evidence by psychiatrists and psychologists also revealed

Richey's preoccupation with death, blood, and violence, and his

acts of self-mutilation and attempts at suicide resulting in

over six hundred self-imposed scars and cuts on his body.

Richey received his first mental health evaluation in January

1978, when thirteen years old, and has been briefly treated and

evaluated for erratic behavior in various mental institutions.

Social worker Judith Tolliver described Richey as a

blustering young man who suffered from a "histrionic behavior

disorder" in addition to his other personality disorders. She

found Richey not delusional, mentally impaired or actively

psychotic but severely and chronically maladjusted.

Richey was born in Holland in August 1964, where his

father was stationed as a member of the United States Armed

Forces. His mother was Scottish. Richey was raised mostly in

Scotland, where his parents lived. As a teenage boy in

Scotland, Richey was arrested several times for fighting,

larceny, and breaking and entering. Richey came to the United

States in 1982 and worked for his father, and he also travelled

to different cities and worked at different jobs. In 1984,

Richey joined the Marine Corps, and he served for fourteen

months before being honorably discharged. Richey also was

married in Minnesota and fathered a son, but afterwards his

wife divorced him.

Our independent assessment of the evidence reveals some

mitigating features in Richey's history and background.

Richey's mother abused alcohol and taught him to resent

authority. Richey suffers from lifelong borderline and

antisocial personality disorders. Richey also served more than

a year in the United States Marine Corps and was honorably

discharged. All of these factors are entitled to some

mitigating weight. Otherwise, little else in Richey's history,

character, or background is mitigating. Although Richey abused

alcohol and drugs, nothing suggests a serious drug addiction.

On balance, his history, character and background do not offer

substantial mitigating features.

Nothing in the nature and circumstances of the offense

offers any mitigating features. Richey killed a defenseless

child, whose safety had been entrusted to him, as a result of a

blind, jealous rage directed at his ex-girlfriend and her

current lover. The fact that he killed an unintended victim

rather than the intended victims does not alter his moral

culpability under the firmly established doctrine of

transferred intent. State v. Solomon; Wareham v. State, both

supra. His ostensible efforts to save Cynthia did not help her

and interfered with firemen's efforts to rescue her and fight

the fire. Under the circumstances, nothing in the facts of the

offense is mitigating.

The murder victim did not induce or facilitate the offense

nor was Richey under "duress, coercion, or strong provocation";

hence, R.C. 2929.04(B)(1) and (B)(2) do not apply. Richey did

not suffer, at the time of the offense, from a "mental disease

or defect"; therefore, R.C. 2929.04(B)(3) did not apply. A

behavior or personality disorder does not qualify as a mental

defect or disease. State v. Cooey; State v. Van Hook, supra.

Richey's age of twenty-one when he committed the offenses is a

relevant statutory mitigating factor entitled to weight under

R.C. 2929.04(B)(4). Richey's prior adjudications as a juvenile

offender and his adult record of arrests and convictions

preclude finding the lack of a record as a mitigating factor.

See R.C. 2929.04(B)(5). The evidence shows that Richey was the

only actor in these crimes; hence, R.C. 2929.04(B)(6) does not

apply.

Richey suggests residual doubt as an "other factor," R.C.

2929.04(B)(7). Depending upon the facts, residual doubt can be

a mitigating factor. State v. Watson, supra. However, the

strong evidence of guilt in this case precludes awarding

residual doubt any mitigating value.

Richey also argues that the admission of irrelevant

evidence that he threatened the prosecutor and witnesses showed

the unfairness of the trial and rendered the death penalty

inappropriate. However, such evidence related to his "history,

character, and background," R.C. 2929.04(B), and thus was

relevant to the death penalty determination. Richey's

background and his personality disorders are relevant under

R.C. 2929.04(B)(7), but their impact has already been

considered as part of his background and history. No other

mitigation appears relevant as "other factors" under R.C.

2929.04(B)(7).

Despite this mitigation evidence, the aggravating

circumstance outweighs any mitigating factors. In torching an

apartment building at night, he jeopardized the lives of others

in addition to killing an innocent two-year-old child.

Applicable mitigating factors are of little weight when

compared to the aggravating circumstance proved against him.

His personality disorders did not rise to the level of

substantial impairment of capacity under R.C. 2929.04(B)(3).

Many criminals have personality disorders. Thus, his

background did not contain any substantial mitigating features.

The death penalty is appropriate and proportionate when

compared with similar felony murder cases. See State v.

Bonnell (1991), 61 Ohio St.3d 179, 573 N.E.2d 1082 (felony

murder); State v. Lott, supra (felony murder, victim set on

fire); State v. Seiber (1990), 56 Ohio St.3d 4, 564 N.E.2d 408

(felony murder); State v. Powell (1990), 49 Ohio St.3d 255, 552

N.E.2d 191 (felony murder, seven-year-old victim); State v.

DePew, supra (felony murder including arson, three victims

including a seven-year-old); State v. Morales (1987), 32 Ohio

St.3d 252, 513 N.E.2d 267 (felony murder, twelve-year-old

victim); State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203,

489 N.E.2d 795 (felony murder, eleven-year-old victim); State

v. Maurer, supra (felony murder, seven-year-old victim).

Accordingly, we affirm the convictions and sentence,

including the death penalty.

Judgment affirmed.

Holmes, Douglas and Resnick, JJ., concur.

Sweeney, Wright and H. Brown, JJ., dissent.

Herbert R. Brown, J. I must respectfully dissent. For

the reasons set forth below, I would overturn the sentence of

death.

R.C. 2929.05 requires us to undertake a three-part

analysis: the court must review proposed errors, weigh

aggravating circumstances against mitigating factors, and

compare the sentence to those imposed in similar cases. I

disagree with all three parts of the majority's analysis.

I

Mitigation

The majority asserts that "[n]othing in the nature and

circumstances of the offense offers any mitigating features."

This statement is shocking, in view of the fact that Richey

actively tried to save Cynthia Collins. His efforts were not

"ostensible," as characterized by the majority; Richey put his

own life in danger by physically being in the burning

apartment. He repeatedly and hysterically told the firemen and

anyone else nearby: "there's a baby in there." He also told

the firemen where Cynthia was in the apartment. The majority

cruelly misconstrues the evidence when it asserts that the

defendant's efforts interfered with those of the firemen. The

defendant was overwrought in his concern for the child. While

there is some evidence that his presence (because he was

overwrought) was not helpful, this is in no sense contradictory

to the fact that defendant's desire was to save the child.

Further, the officials clearly identified in the record as

physically restraining Richey and keeping him away from the

apartment were special deputies and a police officer in

civilian clothing. These people would not and could not have

directly fought the fire or rescued Cynthia.

In addition, no evidence of any animus toward Cynthia was

presented. In fact, the prosecutor admitted in oral argument

before this court that there was no evidence that Richey had

any intent to kill Cynthia. Chief of Police Miller testified

that Richey was concerned about Cynthia, and special agent

Chandler testified that Richey repeatedly asked about Cynthia

while the fire was being put out. Richey's rescue attempt and

the fact that the victim was unintended are strong mitigating

factors that should have been considered in this case. When

these factors are considered, the balance shifts against the

death penalty.

II

Claims of Error

The majority dismisses several of the defendant's

propositions of law without real analysis of the issues.

A

Evidence of Threats

Several of defendant's propositions of law deal with

evidence that he made threats against the prosecutor and

potential witnesses while in custody. The majority first

contends that the issue of admissibility of these threats is

waived. Richey did move to suppress the statements, and the

fact that he did not specifically object to their admissibility

does not automatically mean they are waived. "* * * [A]n

appellate court need not consider an error which a party

complaining of the trial court's judgment could have called,

but did not call, to the trial court's attention at a time when

such error could have been avoided * * *." State v. Williams

(1977), 51 Ohio St.2d 112, 117, 5 O.O.3d 98, 101, 364 N.E.2d

1364, 1367. Richey brought this error to the trial court's

attention by the motion to suppress, and thus there is no

waiver. See, generally, State v. Long (1978), 53 Ohio St.2d

91, 7 O.O.3d 178, 372 N.E.2d 804.

The majority also contends that Richey's threats "reflect

a consciousness of his guilt," and should therefore be

admissible. It is by no means clear that this is so. A person

wrongly accused could easily take out his frustration and anger

in this fashion. In particular, Richey's anti-social and

borderline personality traits might make the urge to lash out

from a false accusation stronger. In any case, jailhouse

threats are of a different order than flight from prosecution

or a coverup as evidence of guilt.

The threats made by Richey are, pure and simple, acts

separate and distinct from the one for which he was being

tried. Proof of such threats can be admitted during the guilt

phase only to show motive, opportunity, intent, plan, and so

forth. (Evid.R. 404[B].) As the threats came after the events

for which Richey was being tried, none of these factors can

possibly be proved by evidence of later threats. Therefore the

evidence is inadmissible for the guilt phase of trial, and it

was error for the trial court to admit it.

Nor should evidence of the threats have been used in the

sentence deliberations. The majority contends that this

evidence is part of his "history, character, and background"

and that any criminal wrongdoing is properly included in a

presentence report. The cases cited for this proposition are

easily distinguishable from the present situation. In State v.

Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895, the presentence

investigation report included under the heading "Prior Criminal

Record" allegations for which the defendant had never been

tried. The majority in that case held that the statements were

permissible in the presentence report under "social history" of

the defendant. The incidents referred to were a violent

assault and a sexual assault on a small child, not jailhouse

threats. In State v. Hutton (1990), 53 Ohio St.3d 36, 559

N.E.2d 432, it was the defendant's arrest record that was at

issue. A defendant's arrest record is part of his "prior

criminal record," and thus can be included in a presentence

report. Id. at 43, 559 N.E.2d at 441. Richey's threats were

not part of a "prior criminal record," as they occurred after

the events for which he is being tried, and he has never been

charged or convicted of anything stemming from the threats.

Evidence of Richey's threats relates to his history,

character or background in only the most marginal way. Its

prejudicial impact is clear from the court's own actions; the

judges thought Richey so dangerous that they had him shackled

during the trial and allowed deputies to carry firearms and

search people entering the courtroom. Considering these

factors, evidence of the threats was not properly used either

in the guilt phase or in sentence deliberations.

B

Letter

While in pretrial custody, Richey wrote a letter to a

friend in Scotland. The trial court originally suppressed the

letter as irrelevant to either the guilt or penalty phase. The

letter was later included in the presentence report.

The majority contends that "[a]rguably that letter was

relevant to the sentencing decision." I fail to see how it

could have been relevant. The letter is simply a written

version of the same threats Richey made verbally,1 as well as

more "other acts" evidence about events in Scotland which

occurred years earlier. The letter is highly prejudicial, in

particular Richey's reference to bringing back the death

penalty in Scotland. The same objections made above to the

admissibility of the verbal threats apply here. The letter is

not part of a prior criminal record, and any relation to

Richey's history, character and background is tenuous at best.

This, together with its highly prejudicial nature, should have

made the letter inadmissible in the sentencing deliberations.

In addition, Richey's objection to the letter was not

waived. Error as to the letter had been brought to the trial

court's attention in the original motion to suppress. It was

prejudicial error for the trial court to have admitted the

letter in the presentence report.2

III

Proportionality of the Death Penalty

Besides reviewing the claims of error and weighing

aggravating circumstances against mitigating factors, we must

decide whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases. It

is this last part of the analysis which most clearly reveals

how inappropriate the death penalty is in this case.

Several cases are cited by the majority to show the

proportionality of the death penalty in this case. However, if

one reads those cases (which are merely listed and not analyzed

by the majority), it is obvious that not one is remotely

similar to this one. The defendant in State v. Bonnell (1991),

61 Ohio St.3d 179, 573 N.E.2d 1082, shot the victim at close

range and then beat him. In State v. Lott (1990), 51 Ohio

St.3d 160, 555 N.E.2d 293, the victim was directly doused with

lamp oil and set on fire. In State v. Seiber (1990), 56 Ohio

St.3d 4, 564 N.E.2d 408, the defendant had been roaming a bar

and threatening patrons with a loaded gun. The victim refused

to lie down when ordered, and defendant shot him in the back.

In State v. Powell (1990), 49 Ohio St.3d 255, 552 N.E.2d 191,

the defendant kidnapped a seven-year-old girl intending to rape

her. He partially asphyxiated her and threw her out a

fourth-story window. Although arson is involved in State v.

DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, the victims

all died of multiple stab wounds inflicted before the fire was

started. In State v. Morales (1987), 32 Ohio St.3d 252, 513

N.E.2d 267, a twelve-year-old boy was savagely beaten to death

in revenge for something his brother had done. The victim in

State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489

N.E.2d 795, had been kidnapped, sexually assaulted and

strangled. The victim in State v. Maurer (1984) 15 Ohio St.3d

239, 15 OBR 379, 473 N.E.2d 768, had been kidnapped, sexually

assaulted and shot. In each case, the defendant had clear

animus toward the victim, or harmed the victim in a direct,

face-to-face encounter, or both.

Cases of transferred intent where the death penalty was

imposed also involve face-to-face violent encounters between

victim and defendant. For example, in State v. Sowell (1988),

39 Ohio St.3d 322, 530 N.E.2d 1294, defendant forced his way

into the apartment where his intended victim was a guest.

Rather than be escorted outside by the person who opened the

door, defendant shot him in the head.

I find no case in Ohio where a defendant in a felony

murder case has been put to death unless he had specific animus

towards the victim, or a direct, violent, face-to-face

encounter with the victim, or both.3 As discussed above, there

is no evidence that Richey had specific animus towards Cynthia

Collins. On the contrary, he showed concern for her life while

the fire was in progress. Even if the defendant's intent can

be inferred from the circumstances, or transferred from the

animus shown towards others, the circumstances involve no

specific animus or face-to-face violent encounter. There is a

stunning difference between this case and those cited as

comparable by the majority.

Under the Eighth and Fourteenth Amendments to the United

States Constitution, as well as R.C. 2929.05, we are obligated

to perform a meaningful proportionality review of the death

penalty in every case. See Gregg v. Georgia (1976), 428 U.S.

153, 173, 187, 204-206, 223-224, 96 S.Ct. 2909, 2925,

2931-2932, 2939-2940, 2948-2949, 49 L.Ed.2d 859, 875, 882,

892-893, 902-903; see, also, Furman v. Georgia (1972), 408 U.S.

238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Such a review deserves

more than lip service and a listing of cases which are in no

sense comparable to this one. There has been no meaningful

proportionality review in this case. The death penalty is not

warranted, and I must dissent.

Sweeney and Wright, JJ., concur in the foregoing

dissenting opinion.

FOOTNOTES:

1 The threats in the letter were not even directed toward

the parties threatened, but were more in the nature of boasts

to Richey's friend in Scotland.

2 "* * * The report should include only such information

as is directly relevant to the aggravating and mitigating

circumstances. * * * " State v. Glenn (1986), 28 Ohio St.3d

451, 28 OBR 501, 504 N.E.2d 701, paragraph two of the syllabus.

3 The facts in the case of State v. Thompson (1977), 55

Ohio App.2d 17, 9 O.O.3d 190, 379 N.E.2d 245, are similar to

those in this case. Firemen died as a result of fighting an

arson fire in a restaurant. The court of appeals found that

the trial judges were justified in finding intent from the act

of arson, plus defendants' knowledge that others were actually

exposed to the danger they created. The case was never

reviewed by this court, nor was the death penalty imposed. I

believe that it reaches too far to find intent to kill a

fireman from the act of arson and the knowledge of danger

alone. If this were the rule, any time someone dies in an

arson fire the defendant would be guilty of aggravated murder.

This essentially abrogates the long-standing Ohio rule that

specific intent is needed for aggravated murder, and would

render it no different from felony murder in other states.