The opinion
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The State of Ohio, Appellee, v. Grant, Appellant.
[Cite as State v. Grant (1993), -- Ohio St.3d ---.]
Criminal law -- Aggravated muder -- Death penalty upheld, when.
(No. 91-13 -- Submitted May 25, 1993 -- Decided October 27,
1993.)
Appeal from the Court of Appeals for Mahoning County, No.
83 C.A. 144.
GUILT PHASE EVIDENCE
On April 1, 1983, at 6:11 a.m., appellant, Rosalie Grant,
called the Youngstown Fire Department to report a fire at 3127
Orrin Avenue, the house where she resided with her two infant
sons, Joseph, two years old, and Donovan, one year old. A
Youngstown police officer, John Mazzeo, was first on the
scene. He saw Grant come out of the house next door, and Grant
told him that her house was on fire and her children were
inside. Mazzeo attempted a rescue, but was rebuffed by the
intense smoke after opening the front door.
When fire fighter Terrance Paige arrived, Grant told him
that "[t]he babies are in back." Fire fighters crawled into
the smoke-filled house and worked their way to the children's
bedroom, the only room in the house that was engulfed in
flames. In five to ten minutes, the fire fighters extinguished
the blaze, and were able to commence the grisly task of
recovering the babies' bodies. They found Joseph first, his
head still on fire. They found Donovan in a corner soon
after. According to the coroner, the children died from shock
and asphyxia due to their extensive burns and inhalation of
smoke. The children also suffered thermal skull fractures,
which occur when the brain boils and cracks the skull.
Outside the house stood Rosalie Grant, with unsinged hair,
no soot on her face or eyes, and fully dressed in pants,
jacket, shoes and socks. An ambulance attendant testified that
Grant showed no signs of smoke inhalation. Other than her
claim to a detective that she had tried to get into the
children's room, there was no evidence presented that Grant had
attempted to put out the fire or to save the children. Arson
investigators determined that the door to the bedroom remained
closed during the early and hot stages of the fire, prior to
the arrival of the fire fighters.
At 7:00 a.m., Coroner's Investigator Angelo Kissos observed
the two severely burned corpses at the hospital. Then Kissos
spoke to Grant in the hospital's grief room. Grant told Kissos
she had put the children to bed around 8:00 p.m., gave them
some juice and water around 11:30 p.m., and then went to bed
around 1:00 a.m. Grant asserted that the child Joe at times
played with matches and had turned on the kitchen stove the
night before.
Fire fighters noticed the unusual nature of the blaze early
on. The fire was suspicious in that it was confined to only
one room of the house, the babies' bedroom, and there was an
unusual explosive flash after the fire was under control. Fire
fighters and other investigators testified that while there was
only minimal smoke damage in the other rooms, the children's
bedroom was completely gutted.
Around 9:30 a.m. on the morning of the fire, John Zamary, a
Youngstown fire department inspector, and Thomas Naples, an
arson squad investigator, began to inspect the fire scene.
Zamary discovered unusual deep burn patterns on the bedroom
floor -- there was a hole burned in and around the heat
register beneath the bedroom window, and a hole burned in the
cold-air return next to the door. Several other deep burns
were found in the floor between the door and the window. Both
Zamary and Naples smelled a flammable liquid or a
petroleum-type odor throughout the bedroom. Zamary eliminated
electrical or heating problems as a cause and concluded that
the fire had been intentionally set and that a liquid
accelerant had been used.
In searching the basement of the house, Naples found
remains of several previous fires. A table and a door and
frame in the basement had burned, there was evidence of a fire
in a crawl space, and the basement fuse box had charred paper
and liquid in it. Zamary and Naples noticed that the liquid
had the same petroleum-type odor as the bedroom.
Detective Michael Landers spoke with Grant about the
basement fires. Grant told him that the basement table fire
had occurred several months previously while she was in the
house, but she did not know how it was started or how it was
extinguished. She denied knowing about the other basement
fires.
On April 5, Landers found a new can of charcoal lighter
fluid and a partially burned kitchen chair inside a nearby
vacant house. Except for the can and the chair, everything in
the vacant house was dirty and dusty. The burned chair was of
the same design and appearance as those in Grant's kitchen.
The can bore her fingerprints. Chromatography analysis of the
liquid from the can revealed hydrocarbon liquid very similar to
the liquid found in the fuse box. No liquid sample was taken
from the children's bedroom, and thus no comparison was made
between the suspected accelerant used there and the charcoal
lighter fluid.
Fire Chief Donald Cover, an arson expert, inspected the
fire scene during a warrantless search on April 5. Chief Cover
concluded that the fire had definitely been caused by arson,
fueled by a liquid accelerant. His testimony otherwise
corroborated the testimony of Naples and Zamary.
On April 14, Lee Brininger inspected the fire scene on
behalf of the insuring fire casualty company. Brininger
discerned a "penetrating burn pattern into the [bedroom's]
wooden floor, which is indicative of a flammable liquid." He
found the bedroom fire definitely to be the result of arson.
In their investigation, police discovered that Grant had
purchased $5,000 worth of life insurance for each of the boys
about two weeks prior to their deaths. She did not choose
double indemnity. Grant listed herself as the policy owner and
beneficiary, and received the policies on March 17. Contrary
to the advice of her insurance agent, Grant did not purchase a
policy for herself or for her three-year-old daughter Shylene,
who was living with Grant's grandmother, Rosalie Carson, at the
time. Grant had told the insurance agent that Carson already
had a policy for Shylene, but Carson flatly denied having any
insurance on Shylene or telling Grant she did.
In Grant's defense, several persons testified about strange
happenings at the house in the month before the fire. On March
14, 1983, patrolman Leonard Bridges responded to Grant's house
to investigate a report of a prowler. He found nothing. Grant
told Bridges she had previously had problems with her
boyfriend, and that someone had earlier burned clothing in her
basement.
Kitty Carson, Grant's sister, described harassing and
threatening calls for Grant that she had overheard or answered
herself. One female caller said, "You'd better leave me
alone," and "If you don't leave me alone, I'm going to kill
both you and your kids." After the fire, the same woman called
and said that Grant got what she deserved and that "she was
supposed to die with them." Carson admitted that Grant may
have known the caller, but there was no evidence that Grant
ever told the police about the calls.
Lisa Bray, Grant's best friend, testified that she had
suggested Grant to the insurance agent as a potential
customer. She also testified that Grant started receiving
daily threats a month before the fire. Bray recognized the
voice as Marie, Grant's rival in a love triangle. Bray
testified that Marie told Grant, "You're dead, bitch" and "I'm
going to burn your ass." On the night before the fire, Bray
testified, she overheard Marie tell Grant that "she was going
to get an April Fool's bomb." Again, Grant did not mention
those specific calls to police. Although Bray was interviewed
by police after the fire, she never mentioned the threats until
her testimony at trial.
SENTENCING EVIDENCE
Rosalie Carson testified that Grant, who she loved, was a
good person and took excellent care of her children. When
asked about Grant's relationship with her surviving daughter,
Carson stated that Grant loved Shylene. Kathleen Carson,
Grant's sister, described Grant as grief-stricken over the loss
of her sons. Grant's family was deeply hurt by the tragedy,
but Kathleen testified that they were standing behind her.
Dr. Jerome G. Miller, President of the National Center on
Institutions and Alternatives, prepared a presentence report on
Grant. Miller's report indicates that Grant was born in 1960
to Wilma and Charles Grant. Wilma Grant, a prostitute, was
described by family members as unpredictable, immature, and at
times violent; she had sixteen arrests and several convictions
for various offenses. Rosalie had three sisters, Kitty, Karen
and Pauline. Wilma and her mother moved and travelled often,
at times leaving the children with friends or relatives.
According to the report, when Grant was twelve she told
Carson that Wilma had "gone nuts" and had lined up three of her
children, told them not to move, and started shooting. They
all, however, escaped. On another occasion, Wilma told her
children to hang on to their stepfather, Perry Ford, in order
to impede his movement toward Wilma, whom he was threatening.
As the children clung to Ford, Wilma stabbed him to death.
The report also stated that Wilma and her mother beat and
mistreated the children, and that, according to Charles Grant,
Rosalie's father saw them only as a source of welfare income.
Charles is not sure that Rosalie is his biological daughter,
but accepted her as such upon the advice of Carson, his
mother. In his report Miller stated that Grant had positive
feelings about her father, although she feared him because he
had raped her one night when she was in her early teens.
The report stated that Charles Grant described his mother,
Carson, as almost obsessive about insurance, and related that
she asked him to pressure Grant into purchasing a policy on her
children. After an earlier death in the family, a collection
had to be taken up for the funeral expenses, and Carson had
found that to be demeaning.
According to the report, Grant had limited employment
experiences. She worked one summer in a CETA program, and had
attempted to sell Avon products. She attended some high
school, but received no diploma. Because of the numerous moves
she made, she is unsure about what grades she actually
completed.
In her unsworn statement given prior to sentencing, Grant
was defiant. She stated that she had wanted to testify in her
defense, but that her lawyers had advised against it because
they thought the prosecutor had insufficient evidence. She
spoke of strange circumstances at her house and of threatening
phone calls she received. She said that on the morning of the
fire she woke, up, saw that the house was full of smoke, and
rushed to rescue her children. However, a laughing man holding
a metal pipe or club would not let her into the bedroom. She
then went next door and reported the fire.
VERDICT AND SENTENCING
The jury convicted Grant, as charged, of two counts of
aggravated murder and one charge of aggravated arson. Each
aggravated murder charge contained two death-penalty
specifications, one alleging a course of conduct involving the
purposeful killing of two or more people, and another alleging
murder during an aggravated arson.
The jury recommended death, and the trial court agreed and
sentenced Grant to death. The court of appeals affirmed the
conviction and death penalty, and this case is now before this
court as of right.
James A. Philomena, Mahoning County Prosecuting Attorney,
and Kathi McNabb Welsh, Assistant Prosecuting Attorney, for
appellee.
James Kura, Ohio Public Defender, and S. Adele Shank,
Assistant Public Defender, for appellant.
Pfeifer, J.
GUILT-PHASE ISSUES
In Grant's first proposition of law, she argues that all
visits to her house by police and fire officials on April 1, 5
and 14 were warrantless and, except for the initial
fire-fighting efforts, unlawful. The state concedes that the
April 5 search was unlawful. Nonetheless, under the
circumstances, Chief Cover's testimony based on that search was
cumulative and thus its admission was harmless error.
Exigent circumstances justified the warrantless search on
April 1. In Michigan v. Tyler (1978), 436 U.S. 499, 510, 98
S.Ct. 1942, 1950, 56 L.Ed.2d 486, 498, the United States
Supreme Court recognized that fire officials are responsible
not only for putting out fires but also for investigating their
causes. Prompt investigation is necessary not only to prevent
the recurrence of the fire but also to "preserve evidence from
intentional or accidental destruction." Id. at 510, 98 S.Ct.
at 1950, 56 L.Ed.2d at 499. In that case, the court sustained
a warrantless search for the cause of a fire even though fire
fighters left at 4:00 a.m. after extinguishing the fire and
investigators returned four hours later to continue their
investigation.
In Michigan v. Clifford (1984), 464 U.S. 287, 104 S.Ct.
641, 78 L.Ed.2d 477, the court found the warrantless entry of
arson investigators into a home some five hours after the last
fire fighter had left to be unconstitutional. However,
contrary to the present case, the owner's agents in Clifford
had taken steps to secure their privacy interests and were
boarding up the home as the investigators arrived. The
investigators in Clifford also extended their search into
undamaged portions of the home not involved in the fire.
The April 1 searches here by police and fire officials are
constitutionally permissible. Since evidence at a fire
scene--such as the odor of accelerants--is ephemeral, and the
risk of fire recurrence from an unknown source is real, no
warrant is required for a prompt investigation.
Further, the time gap between the visits on April 1 is
significantly shorter than the four or five hours involved in
either Tyler or Clifford. Fire fighters left the fire scene by
7:51 a.m., and fire investigators Zamary and Naples were called
to the scene at approximately 8:30 a.m. and began their search
at around 9:20 or 9:30 a.m. Almost uniformly, courts have
sustained warrantless searches into the cause of fires
conducted within a few hours of fire fighters' leaving the
scene. E.g., United States v. Urban (C.A. 6, 1983), 710 F.2d
276; People v. Calhoun (1980), 49 N.Y.2d 398, 426 N.Y.S. 2d
243, 402 N.E.2d 1145; and Annotation, Admissibility, in
Criminal Case, of Evidence Discovered by Warrantless Search in
Connection with Fire Investigation -- Post-Tyler Cases (1984),
31 A.L.R.4th 194. The fact that Naples and Zamary were not
originally at the fire scene does not affect the result.
United States v. Urban, supra, at 279; Schultz v. State
(Alaska, 1979), 593 P.2d 640; People v. Calhoun, supra, 49
N.Y.2d at 404, 426 N.Y.S.2d at 246, 402 N.E.2d at 1148; Shaffer
v. State (Wyo. 1982), 640 P.2d 88.
The police and fire-fighter activity at the fire scene on
April 1 was justifiable. Officers Naples and Zamary prudently
included the basement in their fire investigation. They sought
a possible source for the petroleum smell permeating the
bedroom and for severe burning near the heating vent and the
cold-air return in the bedroom.
Coroner's Investigator Kissos and Detective Landers both
arrived in the morning of April 1 while fire investigators were
at the scene. Their searches are encompassed within the fire
investigation. Patrolman Fullerman, who took photographs and
collected wire and insulation with fluid on them from the fuse
box, simply assisted in the fire investigation.
The results of private insurance agent Brininger's April 14
visit were admissible because his search did not constitute
state action barred by the Fourth Amendment. Brininger entered
the property on April 14 for private purposes without official
instigation. Chief Cover, Investigator Zamary, and officer
Fullerman were present as a courtesy. Cover also continued his
investigation; Fullerman assisted Brininger with lighting. In
State v. Morris (1975), 42 Ohio St.2d 307, 71 O.O.2d 294, 329
N.E.2d 85, this court recognized that a warrantless search and
seizure initiated by private individuals for private purposes
does not violate the Fourth Amendment even though police
officials are present and participate.
In Grant's second proposition of law, she argues that
testimony about the basement fires was inadmissible evidence of
other wrongful acts. However, Evid. R. 404(B) recognizes that
evidence of other crimes or acts may be admissible "as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Evid. R. 404(B).
Courts have generally recognized "that evidence of other fires
implicating the defendant may be admitted whenever it is shown
to be relevant to a contested issue in the case." Annotation,
Admissibility, in Prosecution for Criminal Burning of Property,
or Maintaining Fire Hazard, of Evidence of Other Fires (1963),
87 A.L.R.2d 891, 894.
Lighter fluid and burned paper on the fuse box indicated a
possible arson effort camouflaged as an electrical
malfunction. The table and door frame fires suggested liquid
accelerants. The existence of these basement fires, not caused
by the bedroom fire, tended to prove arson upstairs and negate
the possibility of accident. Moreover, these basement fires
tended to show a common plan or scheme and identify Grant as
the arsonist. They could be considered preparation for the
successful arson. Unexplained fires in Grant's residence were
relevant to her guilt.
In her third proposition of law Grant claims that the trial
court erred in failing to instruct the jury, sua sponte, as to
the limited purpose for which evidence of the basement fires
was admitted. Although such a limiting instruction is common,
Grant's failure to request such an instruction at trial waived
any error. State v. Davis (1991), 62 Ohio St.3d 326, 339, 581
N.E.2d 1362, 1374. No plain error is present here since the
absence of such an instruction made no difference in the jury's
verdict; nothing suggests the jury used this evidence to
convict the appellant on the theory she was a bad person.
In her fourth proposition of law, Grant refers to Caldwell
v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d
231, for the proposition that the trial court compromised the
jury's sense of sentencing responsibility by informing them
that their verdict was only a recommendation. However, to
establish a violation of Caldwell, an accused must show an
inaccurate statement of local law. Dugger v. Adams (1989), 489
U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435. In this case, the
trial court's instruction accurately reflected Ohio law, did
not lessen the jury's sense of responsibility, and hence did
not constitute error. State v. Hicks (1989), 43 Ohio St.3d 72,
79-80, 538 N.E.2d 1030, 1038. The jurors assured defense
counsel that their sense of responsibility would not diminish
merely because their verdict of death would be only a
recommendation.
In her fifth proposition of law, Grant states that the
trial judge erred in declining to instruct the jury on the
reasons an accused decides not to testify. This argument is
without merit. The court did instruct the jury that the
defendant had a constitutional right not to testify and that
the "fact that the defendant did not testify must not be
considered for any purpose."
"A trial judge has the constitutional obligation, upon
proper request, to minimize the danger that the jury will give
evidentiary weight to a defendant's failure to testify." State
v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583,
paragraph one of the syllabus. However, a trial court need not
instruct in the exact language requested by a defendant. State
v. Scott (1986), 26 Ohio St.3d 92, 101, 26 OBR 79, 87, 497
N.E.2d 55, 63. In State v. Scott (1987), 41 Ohio App.3d 313,
317, 535 N.E.2d 379, 384, the appellate court did not find
error in the trial court's refusal to instruct the jury as
requested by the defendant, as "the court's language adequately
instructed the jury on the proposed subject." Id. at 317, 535
N.E.2d at 384. In this particular matter, the jury was
instructed as to Grant's right not to testify. The instruction
was the standard definition set forth in 4 Ohio Jury
Instructions (1992) 45, Section 405.21, and was in conformity
with the dictates of Fanning.
In her sixth proposition of law, Grant argues prejudicial
error because the trial court rejected her proposed instruction
on circumstantial evidence, and failed to give a standard
instruction from Ohio Jury Instructions. Although the wording
of the requested charge and the actual charge were somewhat
different, the substance was the same. Additionally, Grant's
proposed paragraph on inferences is confusing and redundant.
Despite Grant's statements to the contrary, this court has
rejected the concept that circumstantial evidence must be
"irreconcilable with any reasonable theory of innocence in
order to support a conviction." State v. Jenks (1991), 61 Ohio
St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus,
overruling State v. Kulig (1974), 37 Ohio St.2d 157, 66 O.O.2d
351, 309 N.E.2d 897. Further, in neither specifically
requesting paragraph three of the standard circumstantial
evidence instruction nor objecting to its omission,
defendant-appellant waived any objection to omission of that
paragraph. The omission was not plain error, as the outcome of
the trial would have remained the same. State v. Long (1978),
53 Ohio St.2d 91, 97, 7 O.O.3d 178, 181, 372 N.E.2d 804, 808.
The substance of the excluded language was that circumstantial
evidence must be "strong enough to support a finding of proof
beyond a reasonable doubt." The trial court did instruct the
jury that the circumstances must be "so convincing as to
exclude a reasonable doubt of the defendant's guilt."
In Grant's seventh proposition of law, she argues that
Ohio's felony-murder statute requires an "independent,
underlying felony" to support a conviction for aggravated
murder. Grant submits that no independent felony existed in
her case because arson was the "assaultive conduct" used to
kill the children. She argues that instead of being an
aggravating, felonious act independent of the murder, the arson
was subsumed into the murder. Arson, she argues, was used as
the means to kill the children -- the children were not killed
incidentally to the arson.
Grant asks us to accept that even if she committed murder,
she did not separately commit aggravated arson. Her semantic
smokescreen cannot obscure the facts of what actually happened
in this case: Grant lit her house on fire! She "by means of
fire * * * cause[d] physical harm to [an] occupied structure,"
and thus committed aggravated arson. R.C. 2909.02(A)(2). As
she went through the business of burning the house, she ensured
that her sons would have no way of escaping the blaze, and
therefore purposely caused their deaths. Fire was Grant's
weapon, not arson. Fire was used to commit two separate acts,
aggravated arson and murder. Together, those acts constitute
aggravated murder.
Grant argues that if the killer "had walked into the
children's bedroom and stabbed, shot, strangled, poisoned, or
smothered them no charge of aggravated murder based on an
underlying felony would stand." Despite Grant's arguments,
this court will decline to take steps to make death by fire a
more viable option for Ohio's murderers.
The appellant continues to argue in her eighth proposition
of law that murder by arson is not prohibited by Ohio's felony
murder statute, R.C. 2903.01(B). The gist of this argument is
that the appellant was not given reasonable notice that her
contemplated conduct, killing by means of fire, was forbidden,
and that the felony-murder statute is unconstitutionally vague
as to her.
R.C. 2903.01(B) is neither vague on its face nor as it
applies to the appellant. It provides: "No person shall
purposely cause the death of another while committing or
attempting to commit * * * aggravated arson or arson * * *."
Burning down an occupied home, known to contain children, in
order to kill the children is clearly encompassed within both
R.C. 2909.02, the aggravated arson statute, and R.C.
2903.01(B). If you purposely kill someone by "creat[ing] a
substantial risk of serious physical harm to any person" by
fire, you have committed felony murder. The statute could not
be clearer.
The appellant's ninth proposition of law, that the
death-penalty specification listed in R.C. 2929.04(A)(7) was
vague as to her, has no merit. That section lists as a
statutory aggravating circumstance, an offense "committed while
the offender was committing [or] attempting to commit * * *
aggravated arson." "Aggravated arson" is defined in terms of
knowingly creating a substantial risk of serious physical harm
to any person by means of fire. In the instant case, the
appellant purposely killed the victims while committing the
felony of aggravated arson. Grant falls within the specific
class of persons to which the specification applies.
Therefore, R.C. 2929.04(A)(7) is not vague as to her.
In her tenth proposition of law, the appellant argues that
she was punished three times for the same act. She contends
that separate punishments for aggravated arson and aggravated
murder, as well as the death specification for felony murder,
violate her rights against double jeopardy and multiple
punishments. Additionally, she assumes she did not separately
commit the offense of aggravated arson. As previously
discussed, the law and facts do not bear out her contentions.
Ohio's statutory scheme of punishment under R.C. 2903.01(B)
of both aggravated murder and aggravated arson does not violate
constitutional guarantees against double jeopardy. The General
Assembly intended that both offenses be separately punished.
See State v. Moss (1982), 69 Ohio St.2d 515, 521-522, 23 O.O.3d
447, 451, 433 N.E.2d 181, 186-187; State v. Guyton (1984), 18
Ohio App.3d 101, 18 OBR 464, 481 N.E.2d 650.
Grant also argues that multiple convictions for aggravated
murder with death-penalty specifications and aggravated arson
violate R.C. 2941.25, Ohio's multiple-count statute. She
contends that aggravated arson is an allied offense of similar
import to aggravated murder. However, as this court said just
last year, "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." State v. Richey (1992),
64 Ohio St.3d 353, 369, 595 N.E.2d 915, 928.
Grant also argues that the crime of aggravated arson is a
lesser included offense of aggravated murder. State v. Kidder
(1987), 32 Ohio St.3d 279, 513 N.E.2d 311, paragraph one of the
syllabus, provides:
"An offense may be a lesser included offense of another
only if (i) the offense is a crime of lesser degree than the
other, (ii) the offense of the greater degree cannot, as
statutorily defined, ever be committed without the offense of
the lesser degree, as statutorily defined, also being
committed, and (iii) some element of the greater offense is not
required to prove the commission of the lesser offense."
The offenses in the instant case fail to meet this test.
Aggravated murder can be committed in a variety of ways. It
merely requires "purposefully causing the death of another
while committing one of nine specified felonies, of which
aggravated arson is only one." State v. Richey, supra, 64 Ohio
St. 3d at 369, 595 N.E.2d at 928.
In her eleventh proposition of law, Grant argues that the
prosecutor failed to furnish copies of two insurance
applications and a prospectus during discovery. Under State v.
Parsons (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 488, 453
N.E.2d 689, 692, a court looks to the following when reviewing
a potential discovery violation: (i) whether the failure to
disclose was willful; (ii) whether disclosure would have aided
preparation; and (iii) prejudice.
In this case the trial court acted within its discretion
and committed no prejudicial error. There is nothing in the
record to indicate, nor did defense counsel ever assert, a
willful failure of discovery. Grant's counsel did not
specifically seek additional time to cross-examine Ronald
Saunders, Grant's insurance agent. In not doing so, defense
counsel appeared willing to go forward without the discoverable
information. Grant's counsel was made fully aware of the
existence of the policy in question at the preliminary hearing,
as he had commented upon it. Counsel for defendant also talked
privately with Saunders before trial, revealing his full
knowledge of the issues in his cross-examination. Therefore,
failure to deliver the documents never prejudiced Grant.
In her twelfth and thirteenth propositions of law, Grant
argues that the trial court erred in allowing Coroner Belinky
and Fire Chief Cover to testify as expert witnesses concerning
the effect of carbon monoxide on the body. Previously, this
court has held that the qualification of an expert is a matter
for determination by the court and rulings with respect to such
matters will ordinarily not be reversed absent a clear abuse of
discretion. State v. Maupin (1975), 42 Ohio St.2d 473, 479, 71
O.O.2d 485, 488, 330 N.E.2d 708, 713. Furthermore, an "expert
witness is not required to be the best witness on the subject."
Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155,
159, 10 O.O.3d 332, 334, 383 N.E.2d 504, 506.
The trial court did not abuse its discretion in allowing
Dr. Belinky or Chief Cover to testify. At the time, Dr.
Belinky had been the Mahoning County Coroner for nine years.
Dr. Belinky had worked on prior fatalities by fire and studied
the effects of carbon monoxide during his thirty-seven years
with the coroner's office. Chief Cover had been a fire chief
for eighteen years, had been with the fire department since
1943, and had studied these matters in numerous seminars
throughout his career.
No prejudice resulted even if the trial court erred. The
defendant cross-examined Dr. Belinky not only in regard to his
qualifications, but called her own expert who testified as to
the children's cause of death. With respect to Chief Cover,
his testimony was largely cumulative to that of Dr. Belinky as
he basically described the levels of carbon monoxide necessary
to cause death.
Grant's fourteenth proposition of law is decisively not
well taken. She states that it was error for the trial court
to allow the culling of all prospective jurors opposed to the
death penalty. The three jurors at issue indicated that they
could not possibly return a death sentence because of their
personal views regarding the death penalty. All were released
for cause.
This court has previously rejected challenges to the
constitutionality of death-qualifying a jury. State v. Landrum
(1990), 53 Ohio St.3d 107, 119, 559 N.E.2d 710, 724; State v.
Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984,
paragraph three of syllabus; State v. Jenkins (1984), 15 Ohio
St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph two of
syllabus. Also, Grant never preserved this issue at trial by
objecting to the exclusion of jurors who were not so qualified.
In her fifteenth and sixteenth propositions of law, Grant
argues that the lighter fluid can with her fingerprints and the
insulation and fluid from the fuse box were ultimately
irrelevant. Grant is incorrect. This evidence did tend
identify Grant as the arsonist, a "fact that is of consequence
to the determination of the action." Evid. R. 401. Witnesses
testified that an odor similar to the charcoal lighter fluid on
the fuse box permeated the burned bedroom. A nearby charcoal
lighter fluid can contained Grant's fingerprints. Paper ashes
above the fuse box indicate a possible contemporaneous arson
effort.
Grant's seventeenth proposition of law states that the
trial court abused its discretion in not giving requested
preliminary instructions. A trial court, however, is not
required to give preliminary instructions. State v. Comen
(1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph one of
syllabus; State v. Frost (1984), 14 Ohio App.3d 320, 14 OBR
386, 471 N.E.2d 171. Rather, trial courts may give preliminary
instructions at their discretion. Furthermore, the court's
final instructions sufficiently covered circumstantial
evidence, the presumption of innocence, and burden of proof.
Grant next argues in her eighteenth proposition of law that
the evidence is insufficient to convict because the
circumstantial case against her is built upon inferences upon
inferences, and did not exclude all reasonable theories of
innocence. When reviewing such evidence 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, 258 N.E.2d 925, 930. Matters such as the weight of
evidence and witness credibility are primarily to be determined
by the finder of fact. State v. DeHass (1967) 10 Ohio St. 2d
230, 39 O.O.2d 366, 227 N.E.2d 212. Murder convictions can
rest upon circumstantial evidence. State v. Nicely (1988), 39
Ohio St. 3d 147, 151, 529 N.E.2d 1236, 1239. It is no longer
the standard, as it was when appellant's brief was filed, that
circumstantial evidence must be irreconcilable with any
reasonable theory of innocence. State v. Jenks (1991), 61 Ohio
St. 3d 259, 574 N.E.2d 492.
Grant lived alone with her two children. At 6:00 a.m., a
bedroom fire, aided by a liquid accelerant, caused the death of
those children. Although Grant reported the fire, she did not
attempt to rescue her children, nor did she suffer any
injuries, not even any related to smoke inhalation. She never
told police that someone else started the fire and stopped her
from rescuing the children, though this was her story in her
presentence unsworn statement. Fire investigators found a
substance very similar to charcoal lighter fluid on a basement
fuse box, and, as noted previously, that same odor permeated
the charred bedroom. Police also found a charcoal lighter
fluid can with Grant's fingerprints in a vacant building behind
Grant's house. Additionally, a burned chair similar to those
found in Grant's kitchen was found in that building. Several
other small fires of suspicious origin had been set in Grant's
basement, but there was no evidence that she had ever directly
reported them to the police or fire departments -- she once
mentioned to a patrolman investigating a prowler at her house
that someone had burned some clothes in her basement. In the
month prior to the fire, Grant had taken out life insurance
policies on the children who died in the blaze. Her daughter,
who did not live with her, remained uninsured.
While that evidence does not lead to a conclusion of
Grant's guilt to a degree of unquestionable certainty, it does
withstand a sufficiency challenge. Once a jury has reached a
decision based on circumstantial evidence, an appellate court
will reverse only if no "reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt." State v.
Jenks, supra, 61 Ohio St.3d at 273, 574 N.E.2d at 503. The
evidence in this case demonstrates that this jury reasonably
found Grant guilty beyond a reasonable doubt.
The prosecution's case was not based on inferences built
upon inferences. Although inferences cannot be built upon
inferences, several conclusions may be drawn from the same set
of facts. Hurt v. Charles J. Rogers Transp. Co. (1955), 164
Ohio St. 329, 58 O.O. 122, 130 N.E.2d 820, paragraph three of
the syllabus.
In this case, evidence of arson is compelling, and defense
counsel conceded arson at trial. As the only adult present,
Grant is the logical culprit. Her fingerprints on the charcoal
lighter fluid can, charcoal lighter fluid on the basement fuse
box, the same smell in the charred bedroom, the unexplained
basement fires, her suspicious appearance that day and her
recent purchase of children's life insurance all point to her
culpability.
A conviction will not be reversed for insufficiency of
evidence when a jury "'could reasonably conclude from
substantial evidence that the state has proved the offense
beyond a reasonable doubt.'" State v. Johnson (1989), 46 Ohio
St.3d 96, 101, 545 N.E.2d 636, 641, quoting State v. Scott
(1986), 26 Ohio St.3d 92, 102, 26 OBR 79, 88, 497 N.E.2d 55,
64. The state met that burden here.
Grant next argues in her nineteenth proposition of law that
the trial judge erred in allowing a mortician to testify in
rebuttal that, despite earlier testimony that Grant had
partially assigned the insurance proceeds to pay funeral
expenses, no monies had yet been received. Pursuant to R.C.
2945.10(D), the prosecution may call a rebuttal witness.
Further, even if the testimony is not in rebuttal to defense
testimony, the same statute permits the trial court to deviate
from the order of proceedings. In State v. Jenkins (1984), 15
Ohio St.3d 164, 215, 15 OBR 311, 355, 473 N.E.2d 264, 308,
quoting State v. Bayless (1976), 48 Ohio St.2d 73, 2 O.O.3d
249, 357 N.E.2d 1035, at paragraph three of the syllabus, this
court held:
"'Any decision to vary the order of proceedings at trial in
R.C. 2945.10 is within the sound discretion of the trial court,
and any claim that the trial court erred in following the
statutorily mandated order of proceedings must sustain a heavy
burden to demonstrate the unfairness and prejudice of following
that order.'"
In proposition of law twenty, Grant argues that the trial
court erred in commenting upon her unsworn statement in
mitigation. However, the trial court correctly stated the law
in regard to the scope of a statement made by an offender
during the penalty phase of the trial. The trial court's
brief, accurate instruction merely explained that the statement
would be unsworn and there would be no cross-examination, an
issue which would be relevant to any alert jury. Grant did not
object to the trial court's remark, and the trial court limited
its remark to the law, not extensively commenting on the
subject. Thus, defendant Grant was not prejudiced. State v.
Durr (1991), 58 Ohio St.3d 86, 94-95, 568 N.E.2d 674, 683;
State v. Jackson (1991), 57 Ohio St.3d 29, 40, 565 N.E.2d 549,
561.
Grant next argues in proposition of law twenty-one that the
trial court improperly excluded relevant sentencing evidence.
A defendant does have great latitude in a sentencing hearing
under R.C. 2929.04(C), and technical rules of evidence cannot
be used to exclude otherwise proper mitigating evidence. See
Green v. Georgia (1979), 442 U.S. 95, 97, 99 S.Ct. 2150,
2151-2152, 60 L.Ed.2d 738, 741; see, also, State v. Williams
(1986), 23 Ohio St.3d 16, 23, 23 OBR 13, 19, 490 N.E.2d 906,
913; Evid. R. 101(C)(3).
Nevertheless, Grant was not prejudiced by the court's
decision to excise the portion of the presentence investigation
that described the "state of siege" under which Grant felt she
was living before the fire. Her unsworn statement covered the
threats, harassing phone calls, and other events leading to the
fire and describing this "state of siege."
The court also properly excluded the irrelevant personal
opinions of the presentence report's author on the adequacy of
the investigation of the crime. A court has authority to
exclude erroneous portions of a presentence investigation.
State v. Greer (1988), 39 Ohio St.3d 236, 530 N.E.2d 382,
paragraph four of the syllabus. Likewise did the court
properly deny the author's strong desire to give an opinion on
Grant's version of the crime. His personal opinions were
neither relevant nor admissible.
The record does not support Grant's assertion that the
presentence report never went to the jury. The court accepted
the report into evidence; counsel and the court referred to it
in argument and instructions; and the jury, having been
informed about it, never commented on its asserted absence.
Regularity should thus be presumed, including the report's
presence in the jury room.
A petition by the friends and family of Grant expressing
concern for her was also properly excluded. The petition said
nothing about any relevant mitigating factor, and merely
expressed the signers' hope that Grant's life would be spared.
That decision was the function of the jury in this case, not
Grant's friends.
In her twenty-second proposition of law, Grant argues that
the trial court abused its discretion in declining to continue
the sentencing hearing from October 20 to October 24. The jury
rendered its guilty verdict on October 13, and the sentencing
hearing was scheduled for October 20. Defense counsel sought
an additional four-day continuance, which the court declined.
The grant or denial of a continuance is entrusted to the
broad, sound discretion of the trial judge. State v. Powell
(1990), 49 Ohio St.3d 255, 259, 552 N.E.2d 191, 196; State v.
Unger (1981), 67 Ohio St.2d 65, 21 O.O.3d 41, 423 N.E.2d 1078.
Factors to be considered can include the length of the
continuance requested, any prior continuance, inconvenience,
reasons for the delay, whether the defendant contributed to the
delay, and other relevant factors. State v. Landrum (1990), 53
Ohio St.3d 107, 115, 559 N.E.2d 710, 721; State v. Unger,
supra.
No abuse of discretion can be established here. Although
the requested delay was short, defense counsel had previously
represented that they would try to be prepared on October 20.
Counsel's choice to concentrate on motions rather than
interview witnesses was a conscious tactical decision. "Denial
of a continuance requested pursuant to counsel's tactical
design is permissible." State v. Landrum, supra, 53 Ohio St.
at 116, 559 N.E.2d at 721.
Grant also fails to demonstrate that she was denied
effective assistance of counsel in this matter. Grant's
counsel presented the testimony and exhibits of several
witnesses in mitigation. No prejudice has been demonstrated.
State v. Bradley (1989), 42 Ohio St.3d 136, 141, 538 N.E.2d
373, 379.
Grant next argues in her twenty-third proposition of law
that the trial court erred in denying a new trial because of
irregularity in the proceedings, prosecutorial and juror
misconduct, and accident or surprise. Generally, a trial
court's ruling on a motion for new trial will not be reversed
on appeal absent a clear showing that the court abused its
discretion. Toledo v. Stuart (1983), 11 Ohio App.3d 292, 293,
11 OBR 557, 558, 465 N.E.2d 474, 475. Further, Grant
demonstrates neither an abuse of discretion nor an error
"affecting materially [her] substantial rights." Crim. R.
33(A); State v. Taylor (1991), 73 Ohio App.3d 827 833, 598
N.E.2d 818, 821.
Grant claims that an irregularity arose when Fire Chief
O'Nesti interrupted the trial and requested a return of the
tape recording of Grant reporting the fire. The trial record
shows no interruption, nor has Grant corrected the record to
show any interruption. More important, Grant fails to
demonstrate how this interruption prejudiced her.
Grant raises as another irregularity the trial court's
misleading remark about term insurance during counsel's direct
examination of a witness. That comment was harmless.
Despite Grant's contentions, a juror casually asking a
testifying detective "how he was feeling" as they passed in the
hallway does not rise to the level of reversible misconduct.
The requisite prejudice to the defendant is certainly absent.
State v. Hipkins (1982), 69 Ohio St.2d 80, 83 23 O.O.3d 123,
125, 430 N.E.2d 943, 945.
The prosecutorial misconduct alleged by Grant is dealt with
in our discussion of her second and thirty-fifth propositions
of law. Her claim of accident or surprise is disposed of in
our discussion of her eleventh proposition of law.
In her twenty-fourth proposition of law, Grant argues that
the trial court erred by refusing proffered jury instructions.
The court did not include in its instructions requested
language regarding sympathy and mercy, residual doubt,
appropriateness of the death penalty and mitigation.
A trial court can instruct the jury to exclude sympathy
from its deliberations. State v. Steffen (1987), 31 Ohio St.3d
111, 125, 31 OBR 273, 285, 509 N.E.2d 383, 396. The court
sufficiently instructed the jury on mercy when it told them to
consider the mitigating factors "in fairness and mercy." State
v. Jenkins (1984), 15 Ohio St. 3d 164, 191, 15 OBR 311, 334,
473 N.E.2d 264, 290. Appellant requested that the jury be
instructed that the burden of proof in sentencing proceedings
is proof beyond all doubt. Instead, the court correctly
instructed that proof beyond a reasonable doubt is the correct
standard. Residual doubt is a mitigating factor included
within the "other factors" of R.C. 2929.04(B)(7), and is
appropriately considered with the other mitigating factors, and
is not to be applied separately after the jury balances
aggravating circumstances and mitigating factors.
Appellant requested a separate instruction on the
appropriateness of the death penalty. The court's instructions
required the jury to recommend death if the aggravating
circumstances outweighed mitigating factors. The
appropriateness of the death penalty is contained in that
consideration.
Finally, appellant argues that the court erred in listing
to the jury all of the statutory mitigating factors, even those
not raised in the appellant's defense. In State v. DePew
(1988), 38 Ohio St. 3d 275, 289-290, 528 N.E.2d 542, 558, this
court expressed its preference that the trial court and the
prosecution not comment on mitigating factors not raised by the
defendant. However, no prejudice resulted to appellant in this
case since neither the court nor the prosecutor made any
comment to the jury on those factors not raised. Id.
In proposition of law twenty-five, Grant argues that the
trial court failed to control the proceedings, resulting in an
inadequately made, stored and preserved record of trial. She
contends that the court failed to record certain sidebar
discussions and bench and chambers conferences, hearings on
motions, other "off-the-record" discussions and journal entries.
With respect to the sidebar discussions and bench and
chambers conferences, defense counsel never requested that they
be recorded, thereby waiving any error. State v. Jells (1990),
53 Ohio St.3d 22, 32, 559 N.E.2d 464, 473. Appellate counsel
neither reconstructed what occurred nor demonstrated
prejudice. State v. Brewer (1990), 48 Ohio St.3d 50, 60-61,
549 N.E.2d 491, 501-502; State v. Tyler (1990), 50 Ohio St.3d
24, 38, 553 N.E.2d 576, 593.
Six court reporters apparently worked on the record.
During the years the case was before the appellate court, the
appellant attempted to reconstruct and complete the record. On
December 2 1987, case No. 87-632, this court ordered the court
of appeals to "hear relator's appeal on the record currently
before" it. The court of appeals, after painstakingly
reviewing the record as to various defense requests, found the
trial record adequate for appellate review. The record
explicitly reflected dispositions by the trial court, even
though hearings were not held or recorded in all instances.
Thus, Grant's allegations that the record is defective in that
respect are without merit.
In a perfect world, this record would have reflected
statements and testimony given in all hearings and
conferences. However, efficient justice would not be served by
returning this case to the court of appeals. The record before
this court is the same record before the court of appeals when
this court made its 1987 decision. We concur with the judgment
of the court of appeals that the record accurately reflects
what occurred below and is adequate for appellate review.
In her twenty-sixth proposition of law, Grant asserts that
the trial court erred in allowing the prosecutor to elicit
testimony and present argument on nonstatutory aggravating
circumstances in both the guilt and mitigation phases of
trial. However, "[p]rosecutors are entitled to latitude as to
what the evidence has shown and what inferences can be drawn
therefrom." State v. Richey, supra, 64 Ohio St. 3d at 362, 595
N.E.2d at 924. The prosecutor did introduce evidence regarding
Grant's lack of effort to save her children and her seeming
calm demeanor at the fire scene. Such evidence, however,
tended to prove Grant's guilt and therefore properly assisted
the jury in determining the statutory aggravating circumstances
surrounding the crime.
Additionally, the prosecutor's reference to how the
children were killed and to their suffering was a permissible
response to defense counsel's attempt to minimize the horror of
the crime. Under R.C. 2929.04(B), the jury must consider, and
the prosecutor may legitimately comment upon, whether the
nature and circumstances of the offense are mitigating. See
State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598,
paragraph one of the syllabus. Comments about the heinous
nature of the crime can be considered fair comment. Therefore,
proposition twenty-six is rejected.
In proposition of law twenty-seven, Grant claims the trial
court erred by refusing to instruct the jury that the court
could impose consecutive life sentences. However, "the subject
of disposition is a matter for the court and not for the jury
and, thus, need not be considered by the jury." State v.
Rogers, (1985), 17 Ohio St.3d 174, 182, 17 OBR 414, 421, 478
N.E.2d 984, 992. In this case the jury was properly instructed
as to their possible sentencing recommendations: death, life
with possibility of parole after twenty years, and life with
possibility of parole after thirty years. The jury does not
have an option of recommending whether life sentences shall run
consecutively or concurrently. Thus, Grant's twenty-seventh
assignment of error is without merit.
In her twenty-eighth proposition of law, Grant argues error
because the trial court listed all statutory mitigating factors
in its jury instructions, although not all were relevant.
However, neither the prosecutor nor the trial judge made any
comment to the jury on mitigating factors not presented in
Grant's defense. State v. Roe (1989), 41 Ohio St. 3d 18, 26,
535 N.E.2d 1351, 1361. We thus find no error.
In Grant's twenty-ninth proposition of law, she argues that
permitting the prosecution to argue last in the sentencing
proceedings violated Grant's constitutional rights. However,
that argument lacks merit. In State v. Rogers (1985), 17 Ohio
St. 3d 174, 182-183, 17 OBR 414, 422, 478 N.E.2d 984, 993, this
court sanctioned the order of closing argument which was
utilized in the present case. Therefore, this proposition of
law lacks merit.
In her thirtieth proposition of law, Grant challenges the
current system of proportionality review. This court, however,
has repeatedly rejected such challenges. State v. Steffen,
supra, at paragraph one of the syllabus. This court has also
repeatedly rejected all but one of the constitutional
challenges to the death penalty statute contained in
appellant's thirty-first proposition of law. State v. Jenkins;
State v. Maurer, supra. Appropriately, we continue to do so
summarily. State v. Poindexter (1988), 36 Ohio St.3d 1, 520
N.E.2d 568, syllabus. We also reject Grant's new contention
that the Constitution forbids the death penalty unless the
culpable mental state is desire or premeditation and
deliberation.
Grant's challenge in proposition of law thirty-four to
Ohio's felony-murder provisions also lacks merit and is also
summarily rejected. See State v. Henderson (1988), 39 Ohio
St.3d 24, 528 N.E.2d 1237, paragraphs one and two of the
syllabus.
In her thirty-second proposition of law, Grant claims that
Fire Chief Clover's ninety-six color slides, together with a
black and white photograph of the corpses, were taken into the
jury room although not admitted into evidence. This is a
speculative claim, and, in an appeal, all reasonable
presumptions consistent with the record will be indulged in in
favor of the regularity of the proceedings below. In re
Sublett (1959), 169 Ohio St. 19, 7 O.O.2d 487, 157 N.E.2d 324;
State v. Frost, supra, 14 Ohio App. 3d at 321, 14 OBR at 387,
471 N.E.2d at 173. Furthermore, no prejudice resulted. The
photograph was repetitive, and the jury had already seen the
slides; other evidence as to the fire scene was abundant.
Proposition of law thirty-two is therefore rejected.
In her thirty-third proposition of law, Grant argues that
evidence of her April 1 conversation with Coroner's
Investigator Kissos violated her Miranda rights. Miranda v.
Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
However, Miranda warnings are necessary only when there has
been an arrest or a deprivation of liberty. Neither occurred
here. Two family members were with Grant in the hospital's
grief room where the conversation took place and neither
testified that she was under arrest. Therefore, this
proposition of law is without merit. See State v. Wiles
(1991), 59 Ohio St.3d 71, 83, 571 N.E.2d 97, 114; State v.
Barnes (1986), 25 Ohio St.3d 203, 207-208, 25 OBR 266, 270, 495
N.E.2d 922, 926.
In her thirty-fifth proposition of law, appellant alleges
prosecutorial misconduct. Most of the acts constituting the
alleged misconduct have been dealt with in our discussion of
Grant's twenty-sixth proposition of law. As was stated
earlier, Grant's efforts to save her children and her demeanor
at the scene were relevant as to her guilt. The prosecutor's
description of what his own mother would do in the same
instance was admittedly misconduct but was harmless in light of
the entire closing argument and did not constitute a denial of
due process. The details about the children's death and
suffering are relevant to the type of fire involved and to the
nature and circumstances of the offense.
The prosecutor also twice called the crimes heinous, gave
his personal opinion on the appropriateness of the death
penalty, twice referred to the fact that the fire occurred on
Good Friday, and told the jury that they were the "conscience
of the community." The prosecutor's characterization of the
crimes as heinous was not misconduct, as it was predicated on
the evidence. State v. Greer (1988), 39 Ohio St. 3d 236, 251,
530 N.E.2d 382, 400. Likewise, a personal opinion regarding
the death penalty does not constitute error if it is based upon
the evidence presented at trial. State v. Durr (1991), 58 Ohio
St.3d 86, 96, 568 N.E.2d 674, 684. There is no error in
setting the scene by referring to a date, and in State v. Tyler
(1990), 50 Ohio St.3d 24, 40, 553 N.E.2d 576, 595 this court
refused to find plain error in allowing a prosecutor's argument
that referred to the jury as the "conscience of the
community." Additionally, appellant made no objections to the
Good Friday and "conscience of the community" comments.
Appellant also claims that the prosecutor misrepresented
the law. Specifically, appellant argues that the prosecutor
stated in his opening statement and closing argument that the
grand jury indictment was evidence of guilt. Again, no
objections were made at trial. Still, the prosecutor merely
stated in his opening statement that after the trial was over
the jury would understand why the defendant was indicted. In
his closing, the prosecutor went through the three counts of
the indictment. The jury was also instructed that the
indictment was not evidence of guilt. We find no error.
Finally, we find that the prosecutor's statements that the
basement fires occurred on the same day as the fatal fire to be
nonprejudicial. There was some evidence that the fuse box fire
had happened a short time before the fatal fire. In any event,
the jury had been through days of testimony regarding that
issue, and the prosecutor's comments did not render the jury
unable to interpret the evidence for themselves. The
prosecutor's comments, if error, were nonetheless harmless
beyond a reasonable doubt.
INDEPENDENT SENTENCE ASSESSMENT
Pursuant to our duties imposed by R.C. 2929.05(A), we now
independently review the death sentence for appropriateness and
proportionality.
First, the evidence, while circumstantial, establishes
beyond a reasonable doubt the specified aggravating
circumstance of a "course of conduct involving the purposeful
killing of * * * two or more persons," and also establishes
that the offense was committed "while the offender was
committing * * * aggravated arson" and that the appellant was
the principal offender in the commission of the aggravated
murder. R.C. 2929.04(A)(5) and (7). The evidence showed that
Grant was the only adult in the house at the time of the
intentionally set fire. She made no real attempt to save the
children. Several smaller fires, unreported to the
authorities, had been set in her basement, including one in the
fuse box designed to appear like an electrical fire. The
bedroom fire smelled of an accelerant similar to the one used
in the fuse box fire. A sample of the accelerant was taken
from the fuse box, and it was found to be very similar to
charcoal lighter fluid found in a can in an abandoned house
near Grant's home. The can showed Grant's fingerprints. In
the month prior to the fire, Grant had taken out life insurance
on her two children who resided with her, but not on her other
child, Shylene, who lived with Grant's grandmother. Finally,
during the course of the investigation, neither Grant nor
anyone else told authorities about anyone who might want to
harm her children. Grant did mention early on to an
investigator that she was having trouble with one of her
sisters, but she later denied making that comment. Only at
trial were any alleged threatening phone calls discussed. Only
in her presentence unsworn statement did Grant relate her story
of a laughing man with a shiny club who prevented her from
saving her children. All of the evidence points only to
Grant. She is certainly guilty of aggravated murder.
The nature and circumstances of the offense provide no
mitigating features. Rosalie Grant burned her children alive.
As long as men have been recording their thoughts, the idea of
a mother killing her children has been seen as the ultimate
crime:
"Gone, gone for nothing are your maternal pangs. For
nothing did you bear these lovely boys, O woman, who made the
inhospitable passage through the grey Clashing Rocks! Why let
your spleen poison your heart? Why this murderlust, where love
was? On the man that spills the blood of his kinsmen the curse
of heaven descends. Go where he may, it rings ever in his ears,
bringing sorrows and tribulations on his house. Listen,
listen. It is the cry of the children. O cruel, ill-starred
woman." Euripides, Medea, in Ten Plays by Euripides (Hadas and
McLean trans. 1960) 59.
There is some mitigation regarding appellant's background.
Grant has had a difficult life. She witnessed the stabbing
death of her stepfather at the hand of her mother. Her abusive
mother threatened her with death, and saw Grant and her sisters
as a way to receive welfare funds. Grant had very little
education and was seldom employed.
However, Grant had a good relationship with her paternal
grandmother. She lived virtually rent free in a house owned by
her grandmother. Her relationship with her father was fairly
close, and she had a good number of friends. Life could have
been much worse for Rosalie Grant, but she was still raised in
an environment where human life was not greatly valued.
This court is all too often faced with death penalty
defendants who have had abusive childhoods. It is generally
the rule rather than the exception for these defendants to have
had a highly troubled past. The question becomes how much
weight to accord that, to determine at what point basic human
values should override any history of neglect. In this case,
the crime committed was so severe, its abhorrent nature so
apparent, that nothing in Grant's past mitigates against our
applying the maximum punishment allowed by law.
Regarding the seven statutory mitigating factors in R.C.
2929.04(B), factors (1), (2), (3), and (6) do not apply: the
victims certainly did not induce or facilitate the offense, the
defendant was not provoked, the defendant demonstrated that she
appreciated the criminality of her conduct, and the defendant
was the principal offender.
The defendant was twenty-two years old at the time of the
offense, so her relative youth should be considered a
mitigating factor. R.C. 2929.04(B)(4). Also, her lack of a
prior criminal record should be considered a mitigating factor
pursuant to R.C. 2929.05(B)(5). Still, not much weight should
be given to that factor, since Grant's entry into the criminal
ranks was terrifyingly brutal.
Finally, "other factors" can be considered pursuant to R.C.
2929.04(B)(7). Residual doubt is probably the foremost of
those in this case. See State v. Watson (1991), 61 Ohio St.3d
1, 572 N.E.2d 97. However, much of our residual doubt comes
from our reluctance to believe that anyone could commit such an
awful crime, much less the children's mother. However, someone
did commit the crime, and all the evidence points to Rosalie
Grant. Grant's defiant behavior in her presentence unsworn
statement works for and against her -- her continued denial
raises the level of residual doubt, but her lack of remorse
removes remorse as a possible "other factor."
That Rosalie Grant committed arson in order to murder her
two infant sons outweighs the mitigating factors of Grant's
troubled childhood, young age, lack of criminal record, and the
existence of residual doubt. Thus, the death penalty is
appropriate.
This court is also charged with determining whether the
death penalty is proportionate to the penalty imposed in
similar cases. The death penalty is proportionate when
compared to other cases of murder as a course of conduct
involving the purposeful killing of two or more persons. See
State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071;
State v. Montgomery (1991), 61 Ohio St.3d 410, 575 N.E.2d 167;
State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894;
State v. Cooey, supra; State v. DePew, supra; State v. Brooks
(1986) 25 Ohio St.3d 144, 25 OBR 190, 495 N.E.2d 407. When
this case is compared with other offenses involving aggravated
arson, the death penalty is also appropriate. See State v.
Richey, supra; State v. DePew, supra.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas and F.E. Sweeney, JJ.,
concur.
Wright and Resnick, JJ., concur in judgment only.