# State v. Richey

> Ohio Supreme Court · August 11, 1992 · 1992 Ohio 44

URL: https://www.frixlaw.com/law-library/cases/11147362

## Case

- **Court:** Ohio Supreme Court
- **Decided:** August 11, 1992
- **Citations:** 1992 Ohio 44
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Moyer, C.J.
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by State v. McGuire, 80 Ohio St. 3d 390 (1997).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11147362

## How later opinions describe it (automated extraction)

- stating "circumstantial evidence may be more certain, satisfying and persuasive than direct evidence"

## Opinion text

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Justine Michael, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11147362. Public record. Not legal advice.