State v. Loza

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 Deborah J. Barrett, 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. Loza, Appellant.

[Cite as State v. Loza (1994), Ohio St.3d .]

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

(No. 93-1245 -- Submitted September 13, 1994 -- Decided

November 30, 1994.)

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

CA91-11-0198.

On January 16, 1991, defendant-appellant, Jose Trinidad

Loza, shot four members of the family of his girlfriend, Dorothy

Jackson. The victims were shot in the head at close range while

they slept in their home in Middletown, Ohio. Loza shot

Jackson's mother, Georgia Davis; her brother, Gary Mullins; and

her two sisters, Cheryl (Mullins) Senteno and Jerri Luanna

Jackson. Mullins died almost immediately from his wound; Davis

and Senteno survived several hours before dying. Jerri Jackson,

six months pregnant at the time of the shooting, died on January

31, 1991.

On the afternoon of January 16, 1991, Gary Hoertt observed

an individual in a white Mazda pick-up truck with California

plates loading trash into his dumpster at his shop in

Middletown. Having had previous problems with the unauthorized

use of his dumpster, Hoertt searched the dumpster for something

with which to identify the individual. Hoertt found a letter in

the dumpster signed by Loza with a return address in Butler

County. Hoertt read the letter, the contents of which indicated

that Loza was involved in a drive-by shooting in Los Angeles and

that he came to Ohio to avoid apprehension by the Los Angeles

police.

After reading the letter, Hoertt called the Warren County

Sheriff's Department to report his discovery. Hoertt was

informed that it would take some time before a deputy could

respond. During that time, Hoertt was informed by an employee

that the individual, later identified as Loza, and a female

companion were seen in the vicinity of the nearby Greyhound bus

station. Hoertt then called Middletown police detective Roger

Knable.

After Knable arrived at Hoertt's shop and read the letter,

Knable and Hoertt went to the dumpster, where they retrieved

other items that Loza had discarded, which included: a knife; an

empty box for a .25 caliber Raven automatic handgun; a receipt

signed by a Judy A. Smith for the purchase of the handgun on

January 15, 1991; a woman's purse; a blank check on the account

of Georgia L. Davis; a general money order made payable to Jose

Loza; clothing; and some other personal items.

As Hoertt and Knable were going through the items in

Hoertt's office, Hoertt saw Loza approach the dumpster. Knable

went to his cruiser and requested his dispatcher to notify Warren

County deputies that the individual had returned and that he was

going to speak to him. Knable identified himself as a police

officer, approached Loza with his gun in his hand, and instructed

Loza to place his hands on the front of the car. Knable searched

Loza and asked his name. At this time, Loza identified himself

as "Jose Rodriguez." Knable told Loza the reason he was being

stopped was because of what he put in the dumpster. Loza

responded "yes." Knable said the letter indicated that Loza may

have been involved in a drive-by shooting in Los Angeles. Loza

again responded "yes." Knable then informed Loza that he was

going to handcuff him and hold him until Warren County deputies

arrived. Knable then went to locate the woman who had been seen

with Loza earlier. Loza said that the woman's name was Cynthia

Rodriguez, that she was his wife, and that they were headed to

California.

Knable then went inside the bus station and approached

Dorothy Jackson. He asked her name and she responded "Dorothy

Jackson." When asked, Jackson stated that Loza's name was "Jose

Rodriguez," and that they were not married. Within a short time

after Knable's initial contact with Loza, Warren County deputies

arrived. The deputies determined Jackson was under age and that

she planned to travel to California with Loza. When asked,

Jackson gave her mother's telephone number to the deputies.

Knable was unsuccessful in reaching Davis, Jackson's mother, by

phone. Detectives Knable and George Jeffery then went to Davis's

home at 1408 Fairmont, but did not receive any response when they

knocked at the door. A neighbor approached the detectives and

said that she had been trying unsuccessfully all day to get

someone from the house to respond.

Because the police were unable to determine if Jackson had

permission to travel out of state, she was arrested for being an

unruly minor and was taken to the Warren County Juvenile

Detention Center. Loza was arrested for contributing to the

delinquency or unruliness of a minor and was taken to the Warren

County Justice Center.

When the detectives began questioning Jackson at the

juvenile detention center, she did not initially tell them of the

murders. Shortly into the questioning, she began crying. She

said she did not want to go to jail, and that Loza had killed her

family. Jackson then told the detectives what she knew about the

murders.

Based upon Jackson's statement, Detective Knable obtained a

search warrant for the house at 1408 Fairmont. When the police

entered the house, they discovered the victims.

Knable and Jeffery then returned to the Warren County

Justice Center and began questioning Loza. The detectives'

interview with Loza was videotaped. At the beginning of the

interview, Loza waived his Miranda rights. Initially, Loza said

that he and Jackson were traveling to California with her

mother's permission. The detectives told Loza they knew what had

happened, and that it would be in his, Jackson's and the unborn

baby's best interest if he just told the truth. About one hour

into the interview, Loza confessed to the murders. Loza detailed

the murders, including the order in which he shot the victims.

Loza stated that Jackson was not in the house at the time of the

murders, and that she did not know that he was going to kill her

family members.

The detectives asked Loza when he began thinking about

murdering Jackson's family members. Loza responded that he had

been thinking about it since he had obtained the gun and

particularly after Davis had threatened to have him arrested if

he tried to leave the state with Jackson. Loza explained that he

shot Davis because of her threats. When asked why he shot the

others, he responded: "Knowing I had to do one, I had to do all.

*** Because if I only done one, they would have -- they would

have known it was me. If I would have done all of them, nobody

would have found out."

Loza was indicted on four counts of aggravated murder, with

three death penalty specifications and a gun specification added

to each murder charge. Death specification number one alleged

murder to escape detection and arrest, R.C. 2929.04(A)(3); death

specification number two alleged "course of conduct" murders,

R.C. 2929.04(A)(5); and death specification number three alleged

murder during an aggravated robbery, R.C. 2929.04(7). Appellant

pleaded not guilty to all the charges.

Appellant waived his right to a jury trial and proceeded to

trial before a three-judge panel. During cross-examination of

the state's final witness, the defense moved for a mistrial on

the basis that the state had failed to disclose certain

exculpatory evidence during discovery. Over the state's

objection, the court granted a mistrial without prejudice. The

trial court denied appellant's subsequent motion to bar his

retrial on double jeopardy grounds.

After the court denied appellant's pretrial motion to

suppress all statements and evidence seized in this matter, a

trial by jury commenced on October 21, 1991.

Prior to submitting the case to the jury, the court

dismissed the aggravated-robbery specification with respect to

the aggravated murder of Jerri Jackson. The jury found appellant

guilty on all four counts of aggravated murder. The jury also

found appellant guilty of all remaining specifications except for

the R.C. 2929.04(A)(3) specification with respect to the

aggravated murders of Senteno and Jerri Jackson.

At the conclusion of the penalty phase, the court merged the

R.C. 2929.04(A)(3) and 2929.04(A)(5) specifications with respect

to the aggravated murders of Davis and Mullins. The jury

recommended the death sentence for the aggravated murders of

Mullins, Senteno, and Jerri Jackson and thirty years to life

imprisonment for the aggravated murder of Davis. The court

accepted the recommendation and sentenced appellant to death for

the aggravated murders of Mullins, Senteno, and Jerri Jackson.

The court also sentenced appellant to thirty years to life

imprisonment for the aggravated murder of Davis and imposed a

three-year term of actual incarceration for the firearm

specification. The court ordered the life and three-year firearm

sentences to be served consecutively to appellant's death

sentences.

The court of appeals affirmed the decision of the trial

court.

The cause is now before this court upon an appeal as of

right.

John F. Holcomb, Butler County Prosecuting Attorney, Noah E.

Powers II and Daniel G. Eichel, Assistant Prosecuting Attorneys,

for appellee.

David H. Bodiker, Ohio Public Defender, Joann Bour-Stokes

and Joseph Wilhelm, Assistant Public Defenders, for appellant.

Per Curiam. J. We are required by R.C. 2929.04(A) to

review Loza's thirty-three propositions of law. Many of these

legal issues have been decided in prior cases and will be

disposed of accordingly. State v. Poindexter (1988), 36 Ohio

St.3d 1, 3, 520 N.E.2d 568, 570. We also must make an

independent review of the record to determine whether the

aggravating circumstances outweigh the mitigating factors beyond

a reasonable doubt. Finally, we must decide whether the sentence

of death is excessive or disproportionate to the penalty imposed

in similar cases.

For the reasons set forth below, we affirm the convictions

and sentences of death.

I

A

In his first proposition of law, appellant asserts that

psychological testimony concerning the voluntariness of his

confession should have been admitted during the guilt phase of

his trial.

The trial court did not permit the jury to hear testimony of

Dr. Roger Fisher, a clinical psychologist, who would have

testified that appellant's confession resulted from police

coercion and duress caused by statements made by the police

officers during the interrogation. Dr. Fisher would have

testified that, in his opinion, appellant confessed because his

background, psychological makeup, and his personal code of

conduct required that he not "snitch" and that he "protect

Dorothy." Dr. Fisher would have testified that because Loza had

a difficult childhood he was compelled to confess to protect his

girlfriend and unborn child. The trial court concluded that

since it had made a pretrial determination that Loza's confession

was voluntary, Dr. Fisher's testimony was not appropriate during

the guilt phase.

Appellant argues that Crane v. Kentucky (1986), 476 U.S.

683, 106 S.Ct. 2142, 90 L.Ed.2d 636, requires the admission of

Dr. Fisher's testimony. In Crane, a sixteen-year-old defendant

sought to introduce testimony regarding the psychological impact

of the length of his interrogation and the manner in which it was

conducted.1 The United States Supreme Court held that the

exclusion of the testimony about the circumstances of the

defendant's confession deprived him of his fundamental

constitutional right to a fair opportunity to present a defense.

The court recognized that while the issue of whether a confession

is voluntary is a question of law for the court, the jury was

entitled to hear the excluded testimony in order to make a

factual determination of whether the manner in which the

confession was obtained cast doubts on its credibility. Id. at

689, 106 S.Ct. at 2146, 90 L.Ed.2d at 644.

The testimony of Dr. Fisher is clearly outside the holding

of Crane. The testimony of the witnesses in Crane related to how

the physical and psychological environment of the interrogation

could have impacted the voluntariness and credibility of the

confession. Dr. Fisher's proffered testimony relates to how

Loza's individual, psychological makeup, independent of the

circumstances surrounding the interrogation, could have impacted

the voluntariness and credibility of the confession.

Consequently, Crane does not require the admission of Dr.

Fisher's testimony.

The jury was able to accurately consider the credibility and

weight of the confession by watching it on videotape. They could

see and hear the tone and manner of the interrogation, the number

of officers present, the physical characteristics of the room,

and the length of the interrogation. The jury had the

opportunity to evaluate the credibility of the appellant and to

give the confession its appropriate probative weight. See State

v. Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.E.2d 180, 189

(the weight to be given evidence and the credibility of witnesses

are jury issues). Because the trial court already had ruled on

the voluntariness of the confession and the jury had the

opportunity to evaluate the credibility of the confession, the

trial court did not abuse its discretion by excluding the

testimony of Dr. Fisher during the guilt phase of the trial.

This proposition of law is overruled.

B

Appellant contends in his second and fifth propositions of

law that his confession was involuntary because of psychological

coercion, trickery, and deception by the police.

Appellant's pretrial motion to suppress was based upon what

he contended was an illegal arrest at the Greyhound station.

Although he did not raise the issue of voluntariness in the

motion to suppress, we will address the issue here.

A confession is involuntary and violative of the United

States and the Ohio Constitutions if it is the product of

"coercive police activity." Colorado v. Connelly (1986), 479

U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484. "In

deciding whether a defendant's confession is involuntarily

induced, the court should consider the totality of the

circumstances, including the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency

of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement." State

v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d

1051, paragraph two of the syllabus, vacated in part on other

grounds (1978), 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155.

Appellant contends that his confession was involuntary

because detectives Knable and Jeffery were psychologically

abusive during the interrogation. Appellant asserts that the

detectives were aware of his deep feelings for Jackson and his

unborn child and they played upon those feelings in order to

coerce appellant into confessing. Additionally, appellant

asserts the detectives offered a plethora of promises, including

lenient treatment from the court, a visit with Jackson, and a

promise to release Jackson if he would just "tell *** the truth."

Admonitions to tell the truth are considered to be neither

threats nor promises and are permissible. State v. Cooey (1989),

46 Ohio St.3d 20, 28, 544 N.E.2d. 895, 908; State v. Wiles

(1991), 59 Ohio St.3d 71, 81, 571 N.E.2d 97, 112. The detectives

did no more than urge the appellant to tell the truth.

The detectives' references to Jackson were made in response

to appellant's repeated inquires about what would happen to her.

No threats were made concerning Jackson or what would happen if

appellant did not confess. The detectives merely informed

appellant of the possible consequences of his actions. By the

time the detectives were questioning appellant, Jackson had

already told the police about appellant's involvement in the

murders. Appellant sought the release of Jackson and he

initiated the bargaining for her release. Under these

circumstances, the statements made to the detectives were

voluntary beyond doubt. See State v. Melchior (1978), 56 Ohio

St.2d 15, 25-26, 10 O.O.3d 8, 14-15, 381 N.E.2d 195, 201-202.

The detectives made no promises regarding the treatment

appellant would receive from the court. They did say that they

would be willing to testify that appellant was cooperative.

Promises that a defendant's cooperation would be considered in

the disposition of the case, or that a confession would be

helpful, does not invalidate an otherwise legal confession.

Edwards, supra, at 40-41, 3 O.O.3d at 23-24, 358 N.E.2d at

1058-1059.

The detectives made no promises regarding a visit with

Jackson; the detectives did say that they would try to make

arrangements for appellant and Jackson to visit "after all of

this [was] done." Contrary to the interpretation proffered by

the defense, taken in the proper context of the entire confession

the detectives' statements could not be viewed as a coercive

tactic used by the police to elicit the confession.

Appellant also contends that the police used trickery to

induce his confession. Knable told appellant that Jerri Jackson

was alive. He also stated that she had identified her assailant,

which was not the case. However, all the other circumstances

surrounding the confession indicate that it was made voluntarily,

and the confession is admissible even though the police misled

appellant by suggesting that they received certain information

from the victim of the crime. See Wiles, supra, at 81, 571

N.E.2d at 112.

Applying the test of voluntariness set forth in State v.

Edwards, supra, and in carefully reviewing the totality of the

circumstances in this case, we concur in the trial court's

finding that the appellant's statements were voluntarily made and

that the appellant's will to resist was not overborne by threats

or improper inducements. Appellant was of majority age and was

in command of his faculties at the time he confessed. He was not

interrogated for an unreasonable length of time, and was not

subjected to physical abuse or harsh conditions. We note that

before the interrogation began, appellant waived his Miranda

rights.2 Upon completion of the interrogation, when the

detectives asked appellant if he felt threatened by them or if

they had made any promises to him, appellant responded that "no,"

they had not threatened him, and agreed they had not made any

promises to him. Through these affirmations, appellant has

confirmed that his confession was voluntarily made.

Thus, we reject appellant's propositions of law two and

five.

C

In proposition of law three, appellant contests the

constitutional sufficiency of the evidence with which he was

convicted. Appellant argues that his confession was involuntary

and therefore is not to be believed, that Jackson's testimony is

neither reliable nor credible, that he had an affirmative defense

to the child-stealing charge,3 that the state did not

scientifically link Loza to the crime, and that the state's

evidence did not establish beyond a reasonable doubt that

appellant killed anyone. Appellant's assertions are without

merit.

The inquiry with regard to the issue of the sufficiency of

evidence must focus on whether the evidence could reasonably

support a finding of guilt beyond a reasonable doubt. "[T]he

relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt." Jackson v. Virginia (1979), 443 U.S. 307,

319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. If there is

sufficient evidence upon which a jury could conclude that all the

elements of an offense have been proved beyond a reasonable

doubt, the evidence is legally sufficient. State v. Eley (1978),

56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, syllabus.

In his first challenge to the sufficiency of the evidence,

appellant asserts that his confession was not voluntarily made.

We already have determined that appellant's confession was

voluntarily made; therefore, the issue need not be addressed

further.

In his second challenge to the sufficiency of the evidence,

appellant argues that Jackson's testimony was neither reliable

nor credible. The weight to be given evidence and the

credibility of witnesses are primarily for the trier of fact.

State v. Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819,

825 (citing State v. DeHass [1967], 10 Ohio St.2d 230, 39 O.O.2d

366, 227 N.E.2d 212, paragraph one of the syllabus). As has been

previously stated by this court, "[n]ot even in a capital case

may we sit as a 'thirteenth juror' *** as to a judgment of

conviction." (Citation omitted.) State v. Tyler (1990), 50 Ohio

St.3d 24, 33, 553 N.E.2d 576, 589.

Our independent review of the record establishes that the

state produced evidence of appellant's guilt beyond a reasonable

doubt. In addition to appellant's videotaped confession,

appellant confessed to Jackson in person and in letters that he

wrote to Jackson while he was in jail. Appellant also confessed

to the murders in a letter that he wrote to his mother.

Appellant was alone with the victims in the house at the time of

the murders. Personal items belonging to Davis were found in the

dumpster, where appellant was seen disposing of various items,

and personal items of Davis and Senteno were also found among

appellant's personal items which were packed in U-Haul boxes

found at the Greyhound station. Appellant was identified as

driving Mullins' truck. Forensic evidence established that the

Raven .25 found among appellant's personal items in the U-Haul

boxes was the murder weapon. Having found the evidence of

appellant's guilt sufficient to support the convictions,

appellant's challenge is without merit.

In his third challenge to the sufficiency of the evidence,

appellant claims to have an affirmative defense to specification

one in the bill of particulars, which states: "*** Jose Trinidad

Loza committed the above offense for the purpose of escaping

detection, apprehension, trial, and punishment for other offenses

committed by him, to wit: child-stealing and contributing to the

delinquency of a minor with respect to his victim's minor child,

Dorothy Jackson." Loza asserts that he reasonably believed that

his conduct was necessary to preserve Jackson's health or

welfare. See R.C. 2905.04(B). Each death specification in a

multiple-count aggravated murder case must be considered

separately. State v. Hooks (1988), 39 Ohio St.3d 67, 529 N.E.2d

429. Loza's contention that his convictions must be overturned

is without merit, because each aggravated murder charge had

multiple death penalty specifications attached of which Loza was

found guilty.

Appellant further contends that the state failed to

establish his identity as the offender through scientific

evidence. Although laboratory technicians did not find any blood

or gun powder residue on appellant's clothing, it must be noted

that the .25 caliber bullets did not splatter much blood, as can

be evidenced from the crime scene photos and videotape. Although

no blood or gun powder residue scientifically linked the

appellant to the crime, there was sufficient probative evidence

from which reasonable minds could conclude that Loza committed

the crimes alleged. Accordingly, appellant's third proposition

of law is without merit.

D

In his fourth proposition of law, appellant argues that the

trial court erroneously denied his motion to bar his retrial on

double-jeopardy grounds. Appellant initially waived his right to

a jury trial and proceeded before a three-judge panel. During

cross-examination of the state's final witness, it was discovered

that a chemical analysis of appellant's clothing failed to reveal

the presence of blood. The results of this analysis were not

made known to the appellant before trial. Over the state's

objection, the three-judge panel, in a split decision, granted

the defense motion for a mistrial.

In a subsequent motion, appellant claimed the state

intentionally provoked a mistrial by deliberately withholding the

test results and other evidence, which could have been used to

challenge Jackson's credibility. The trial court determined that

the state neither intended to provoke a mistrial nor acted in an

overreaching manner.

The Double Jeopardy Clause of the Fifth Amendment, made

applicable to the states through the Fourteenth Amendment,

protects a criminal defendant from repeated prosecutions for the

same offense. Oregon v. Kennedy (1982), 456 U.S. 667, 671, 102

S.Ct. 2083, 2087, 72 L.Ed.2d 416, 422. When a trial court grants

a criminal defendant's request for a mistrial, the Double

Jeopardy Clause does not bar a retrial. Id. at 673, 102 S.Ct. at

2088, 72 L.Ed.2d at 423. A narrow exception lies where the

request for a mistrial is precipitated by prosecutorial

misconduct that was intentionally calculated to cause or invite a

mistrial. Id. at 678-679, 102 S.Ct. at 2091, 72 L.Ed.2d at 427.

See, also, State v. Doherty (1984), 20 Ohio App.3d 275, 20 OBR

338, 485 N.E.2d 783. Only where the prosecutorial conduct in

question is intended to "goad" the defendant into moving for a

mistrial may defendant raise the bar of double jeopardy to a

second trial after having succeeded in aborting the first on his

own motion. Oregon v. Kennedy, supra, at 676, 102 S.Ct. at 2089,

72 L.Ed.2d at 425.

After reviewing the record, we must conclude that the

conduct of the state was not intended to provoke the appellant

into moving for a mistrial. The prosecution was not aware of the

chemical analysis report until the morning of the last day of

trial. There is no indication that the state engaged in an

intentional act of deception, or that the state intentionally

withheld exculpatory evidence. For these reasons, appellant's

fourth proposition of law is overruled.

E

Appellant's sixth and seventh propositions of law are

interrelated. In proposition of law six, appellant asserts that

Detective Knable lacked probable cause to arrest him, and,

therefore, the ensuing confession must be suppressed. In

proposition of law seven, appellant argues that the trial court

committed plain error in admitting appellant's statements to

Knable following the investigatory stop.

Appellant argues that Knable had neither probable cause nor

a reasonable suspicion to believe that appellant had committed

any crime and, therefore, his warrantless seizure was

unjustified. We disagree.

In order to warrant a brief investigatory stop, the police

officer "must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant that intrusion." Terry v. Ohio (1967), 392

U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. Such a

stop must be viewed in light of the totality of the surrounding

circumstances presented to the police officer. State v. Freeman

(1980), 64 Ohio St.2d 291, 18 O.O. 3d 472, 414 N.E.2d 1044. The

standard for reviewing such police conduct is an objective one:

would the facts available to the officer at the moment of the

seizure or the search "'warrant a man of reasonable caution in

the belief' that the action taken was appropriate?" Terry at 22,

88 S.Ct. at 1880, 20 L.Ed.2d at 906; State v. Williams (1990), 51

Ohio St.3d 58, 60-61, 554 N.E.2d 108, 111.

Knable was able to point to specific and articulable facts

which warranted his actions. Knable stopped Loza because of the

letter that was found in the dumpster indicating that there was a

drive-by shooting in Los Angeles in which three people were

killed and the author of the letter, Loza, left Los Angeles

because the police were searching for him. Loza was identified

as the man who had disposed of items in the dumpster. An empty

gun box was found in close proximity to the letter in the

dumpster. Knable could not be sure whether Loza or his companion

was armed. It was necessary for Knable to prevent Loza from

leaving the area while he went to talk to Dorothy Jackson. Loza

was detained in the back of Knable's car until Warren County

deputies arrived. Once the deputies arrived, Knable instructed

them to remove Loza's handcuffs, as there was no longer a need to

restrain him.

Appellant's contention that the statements he made to Knable

after being stopped should be suppressed because he was not given

Miranda warnings is baseless. Knable merely asked Loza his name

and other general questions associated with a police

investigation. This type of questioning is not affected by the

Supreme Court's holding in Miranda. Miranda v. Arizona (1966),

384 U.S. 436, 477-478, 86 S.Ct. 1602, 1629-1630, 16 L.Ed.2d 694,

725-726.

Under the circumstances, Knable was justified in stopping

Loza, conducting a limited search for weapons, and detaining Loza

until the Warren County deputies arrived. The circumstances

surrounding the stop rendered Knable's conduct reasonable and

appropriate under the guidelines established by Terry and its

progeny. Accordingly, we reject appellant's sixth and seventh

propositions of law.

F

In his eighth proposition of law, appellant argues that the

trial court applied an erroneous standard in overruling his

motion to suppress. In his ninth proposition of law, appellant

argues that the trial court did not comply with Crim. R. 12(E),

because it did not state its essential factual findings on the

record when it overruled Loza's motion to suppress. Since the

evidence supported the denial of the motion, any error would be

harmless.

The trial court applied a "reasonableness" standard when it

ruled on the motion to suppress. The court stated: "[T]he court

on analysis finds it very difficult to think of what else Officer

Knable could have done, or if he hadn't done as he did quite

likely would have been derelict in his duties."

The standard applied in Terry is an objective standard based

upon reasonableness. The trial court did not look at Detective

Knable's actions subjectively, as suggested by the defense.

Rather, after looking at all the surrounding circumstances, the

court properly applied an objective standard to Knable's

actions. We therefore reject appellant's eighth proposition of

law.

Appellant asserts the trial court failed to state its

essential findings of fact when it overruled his motion to

suppress. Appellant contends that this is a violation of Crim.

R. 12(E) and serves to frustrate the review required in a capital

case by R.C. 2929.05. R.C. 2929.05 requires the court of appeals

and this court to review and independently weigh all the facts and

other evidence disclosed in the record. Because our review is

independent of the lower court's and encompasses the entire

record,

a partial failure by the trial court to state all its essential

factual findings does not serve to hinder the review process.

Furthermore, in order to invoke Crim. R. 12(E), 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.

Appellant failed to make such a request. Upon an independent

review of the record, we find the evidence supports the denial of

appellant's motion to suppress. Accordingly, appellant's ninth

proposition of law is rejected.

G

In propositions of law ten, eleven, twelve, and eighteen,

appellant contests certain jury issues.

In proposition of law ten, appellant argues the trial court

denied him due process of law by rejecting a proposed jury

questionnaire. "The scope of voir dire is within the trial

court's discretion and varies depending on the circumstances of

each case." State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529

N.E.2d 913, 920, citing State v. Anderson (1972), 30 Ohio St.2d

66, 73, 59 O.O.2d 85, 89, 282 N.E. 2d 568, 572. The trial judge

had discretion to limit voir dire and did not abuse this

discretion in rejecting the defense questionnaire in this case.

Furthermore, appellant had ample opportunity to freely question

prospective jurors during voir dire. See State v. Mills (1992),

62 Ohio St.3d 357, 365, 582 N.E.2d 972, 981. Thus, appellant's

right to a meaningful voir dire was fully preserved, and this

proposition of law is overruled.

In proposition of law eleven, appellant asserts that a

prospective juror who believes the responsibility for determining

punishment in a capital case rests with the trial court should

not be permitted to serve on a capital jury.

During voir dire, a prospective juror twice indicated that

she believed it was up to the court to determine what the

punishment should be in the event the appellant was found

guilty. However, when defense counsel asked whether she could

"listen to the Court, listen to the instructions, listen to the

evidence, follow the rules of law the Judge says applies, and

make your decision accordingly," the juror clearly indicated

that she understood her responsibility as a juror and would

follow the law as instructed. In addition, the juror did not

express any reluctance in sitting on the jury, and she agreed

that the verdicts were hers.

Appellant also contests the trial court's instructions

during the guilt phase of the trial, which indicated that any

recommendation of death by the jury would only be a

recommendation and would not be binding on the court. "The jury

in the penalty phase of a capital prosecution may be instructed

that its recommendation to the court that the death penalty be

imposed is not binding and that the final decision as to whether

the death penalty shall be imposed rests with the court." State

v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264,

paragraph six of the syllabus. This court has repeatedly stated

our preference that no comment be made on the question of who

bears the responsibility for determining the appropriateness of a

death sentence. However, we also have held that such an

instruction accurately states Ohio law and does not constitute

reversible error. State v. Henderson (1988), 39 Ohio St.3d 24,

30, 528 N.E. 2d 1237, 1243. See, also, State v. Williams (1986),

23 Ohio St.3d 16, 21-22, 23 OBR 13, 18-19, 490 N.E. 2d 906, 912;

State v. Steffen (1987), 31 Ohio St.3d 111, 113-114, 31 OBR 273,

275, 509 N.E. 2d 383, 387-388. Appellant's eleventh proposition

of law is, therefore, without merit.

In his twelfth proposition of law, appellant argues that the

trial court should have conducted additional voir dire when it

learned that a seated juror had a problem that might affect the

juror's ability to be impartial. The trial court received a note

from a juror's husband which reflected that he was very upset

about her jury selection, that he wanted her to be excused, and

that she might as well leave home for three weeks. Defense

counsel did not challenge the seating of this juror for cause,

nor did he exercise any of his peremptory challenges to prevent

this juror from serving. The juror never expressed reluctance to

sit on the jury; it was her husband who was reluctant to have her

absent for a protracted period of time. The trial court did not

abuse its discretion by retaining this juror. This proposition

of law is meritless.

In his eighteenth proposition of law, appellant asserts that

the trial court erred by allowing jurors to take notes and bring

them into deliberations. The rule in Ohio is that notetaking by

a juror does not, by itself, constitute unfair prejudice to the

defendant.

In addition, a trial court has the discretion to permit

jurors to take notes if warranted under the circumstances. See

State v. Jones (1988), 50 Ohio App.3d 40, 552 N.E.2d 651; and

State v. Williams (1992), 80 Ohio App.3d 648, 610 N.E.2d 545.

There is nothing in the record that indicates that the appellant

suffered undue prejudice as a result of juror notetaking.

Furthermore, as there is no indication that the trial court acted

unreasonably, arbitrarily, or unconscionably, appellant's

eighteenth proposition of law is rejected.

H

In his thirteenth proposition of law, appellant challenges

the introduction of evidence relating to his alleged involvement

in the following unrelated criminal acts: a drive-by shooting in

California, his juvenile arrest, gang-related activities, and

participation in the assault of a man in California.

Generally, evidence of the bad character of a witness is

inadmissible. Evid. R. 404(B) provides:

"Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show that he acted

in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident."

See, also, R.C. 2945.59.4

Appellant failed to object to much of the evidence, which

waives all but plain error. State v. Landrum (1990), 53 Ohio

St.3d 107, 111, 559 N.E.2d 710, 717. "The failure to object has

been held to constitute a waiver of the error and to preclude its

consideration upon appeal, for, absent an objection, the trial

judge is denied an opportunity to give corrective instructions as

to the error." State v. Wade (1978), 53 Ohio St.2d 182, 188, 7

O.O.3d 362, 365, 373 N.E.2d 1244, 1248. Concerning the items to

which Loza did object, the trial judge gave a curative

instruction to the jury that it was to disregard the statements

relating to the drive-by shooting, the juvenile arrest and gang

involvement. A jury is presumed to follow the instructions given

to it by the trial judge. State v. Henderson, supra, at 33, 528

N.E.2d at 1246, citing Parker v. Randolph (1979), 442 U.S. 62, 99

S.Ct. 2132, 60 L.Ed.2d 713. Furthermore, evidence admitted at

trial refuted the appellant's involvement in the drive-by

shooting. Appellant denied any involvement in the drive-by

shooting in his confession, and Knable testified that he did not

find any connection between Loza and any drive-by shootings in

Los Angeles.

In light of the other overwhelming evidence, we find that

this testimony did not contribute to appellant's conviction.

Therefore, appellant's thirteenth proposition of law is overruled.

I

In his fourteenth proposition of law, appellant contests the

admission of "inflammatory and gruesome" photographs of the

victims and a videotape from the crime scene.

"Properly authenticated photographs, even if gruesome, are

admissible in a capital prosecution if relevant and of probative

value in assisting the trier of fact to determine the issues or

are illustrative of testimony and other evidence, as long as the

danger of material prejudice to a defendant is outweighed by

their probative value and the photographs are not repetitive or

cumulative in number." State v. Maurer (1984), 15 Ohio St.3d

239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the

syllabus. The photographs and videotape had significant

probative value in proving the state's case. This court has

previously held that "'[t]he state must prove, and the jury must

find, that the killing was purposefully done. The number of

shots fired, the places where the bullets entered the body, and

the resulting wounds are all probative evidence of a purpose to

cause death.'" Id. at 265, 15 OBR at 401, 473 N.E.2d at 792,

citing State v. Strodes (1976), 48 Ohio St.2d 113, 116, 2 O.O.3d

271, 272, 357 N.E.2d 375, 378, vacated in part on other grounds,

(1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154. The

photographs and videotape were particularly illustrative of the

fact that the victims' wounds involved the splattering of very

little blood. The lack of blood splattering was relevant to

rebut the appellant's claim that the absence of blood on the

clothes he wore shows that he could not have committed the

murders.

The photographs that were admitted were neither repetitive

nor cumulative. Of those that were admitted, perhaps only two

could be considered "gruesome." However, the mere fact that a

photograph is gruesome is not sufficient to render it per se

inadmissible. State v. Maurer, supra. The probative value of

each challenged exhibit appears to outweigh any prejudicial

impact the photographs may have had.

Additionally, with respect to the videotape of the crime

scene, appellant objected and the court excluded the sound. The

video depicts the crime scene as Loza left it. Because a small

caliber gun was used, not much blood can be seen. Overall, the

victims merely appear to be asleep. Although the portion of the

tape that shows the paramedics assisting Jerri Jackson is

dramatic, when viewed without the sound, as it was for the jury,

it is neither gruesome nor prejudicial.

Accordingly, appellant's fourteenth proposition of law is

without merit.

J

In his fifteenth proposition of law, appellant contests the

admissibility of the testimony of Stephen Greene, a document

examiner, who testified that appellant wrote letters to his

mother and to Jackson in which he admitted culpability for the

murders. Because the defense did not object to this testimony at

trial, reversal requires a finding of plain error.

No plain error occurred with regard to the admissibility of

Greene's testimony. Appellant never disputed the fact that he

wrote the letters. He handed the letters to Knable personally

and asked Knable to mail them. Furthermore, appellant was

afforded the protection of Evid. R. 402, which provides that all

relevant evidence is admissible, and Evid. R. 702, which provides

for testimony by experts.

Greene was a qualified expert document examiner. He had

twelve years' experience as a document examiner with the Ohio

Bureau of Criminal Identification and Investigation, he received

training with the Secret Service and the FBI, and he conferred

regularly with various other examiners in Ohio and Michigan. He

testified that based upon his education, training, skill, and

experience as a handwriting analysis examiner and based on his

examination of the letters and handwriting samples provided by

appellant, it was his opinion, within a reasonable degree of

scientific certainty, that all the letters were written by

appellant. Additionally, "It is a well settled rule in this

state *** [that handwriting comparisons] *** may be made *** by

persons skilled in handwriting, such as are usually called

experts." Bell v. Brewster (1887), 44 Ohio St. 690, 696, 10 N.E.

679, 683. Thus, appellant's fifteenth proposition of law is

rejected.

K

Appellant in his sixteenth proposition of law challenges the

constitutionality of the actions of the police in seizing and

copying letters that appellant wrote from jail and admitting the

letters into evidence against him absent special justification.

Appellant asserts that the letters were the product of an illegal

search and seizure and were admitted in violation of his Fourth

Amendment rights, and that the seizure, reproduction and

admission of the letters violated his First Amendment rights.

Appellant's arguments are without merit.

Appellant sets forth a two-part test found in Procunier v.

Martinez (1973), 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224,

which pertains to the censorship of inmate correspondence. A

more appropriate test is set forth in Turner v. Safley (1986),

482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64, which holds that

prison regulations on correspondence are upheld if "reasonably

related" to legitimate penological interests.

Warren County prison officials had a legitimate security

interest in Loza's correspondence. Loza was writing to Dorothy

Jackson, an inmate at the juvenile detention center at the time

and a key witness in the state's case against him. Jackson had

already expressed her fear of appellant and mortification over

what he had done to her family. The state had an important

interest in ensuring that appellant was not threatening or

intimidating Jackson.

Furthermore, the letters were voluntarily written and no

threat or coercion was used to obtain them -- appellant handed

the unsealed letters to Knable and asked him to mail them. The

letters came into the possession of the officials under an

established practice, which was reasonably designed to promote

discipline. Under these conditions, there was not an

unreasonable search and seizure in violation of appellant's

constitutional rights or an infringement on appellant's First

Amendment rights. Stroud v. United States (1919), 251 U.S. 15,

21, 40 S.Ct. 50, 64 L.Ed. 103. Appellant's sixteenth proposition

of law is rejected.

L

Appellant contends in his seventeenth proposition of law

that due to prosecutorial misconduct during the guilt phase of

the trial, he was unduly prejudiced and therefore deprived of the

opportunity for a fair trial. Because appellant failed to object

until the close of all arguments, he has waived any right, save

plain error, to object to the prosecutor's initial closing

argument. See State v. Johnson (1989), 46 Ohio St.3d 96, 102,

545 N.E.2d 636, 642.

In general terms, the conduct of a prosecuting attorney

during trial is not a ground for error unless that conduct

deprives the defendant of a fair trial. State v. Maurer, 15 Ohio

St.3d at 266, 15 OBR at 402, 473 N.E.2d at 793; State v. Wade, 53

Ohio St.2d at 186, 7 O.O.3d at 364, 373 N.E.2d at 1247; Scott v.

State (1923), 107 Ohio St. 475, 490-491, 141 N.E. 19, 24; State

v. Papp (1978), 64 Ohio App. 2d 203, 211, 18 O.O.3d 157, 162, 412

N.E.2d 401, 407, 412 N.E.2d 401. The crucial aspect of the

analysis on this issue is the effect of the prosecutor's

statements on the jury's decision to recommend the death

penalty.

Parties are granted latitude in closing arguments, and the

question as to the propriety of these arguments is generally

considered one falling within the sound discretion of the trial

court. State v. Maurer, 15 Ohio St.3d at 269, 15 OBR at 404, 473

N.E.2d at 794-795. If it is clear beyond a reasonable doubt

that, absent the prosecutor's comments, the jury would have found

appellant guilty, then his conviction will not be reversed.

State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d

883.

Appellant asserts that the prosecution improperly commented

on his failure to testify at trial. The prosecutor quoted to the

jury a portion of the videotaped confession, in which appellant

stated, "I done it and I'm taking responsibility for it. It's

the whole truth and this is the same thing I'll be saying in

court." In the context in which this statement was given, the

prosecution did not focus on Loza's prior statement that he would

testify at trial, but rather, on Loza's admission of guilt.

As to appellant's argument that the prosecutor improperly

commented on Loza's request for a lesser included offense

instruction on murder during final argument, the prosecutor

merely was responding to defense counsel's closing argument, in

which defense counsel urged a guilty verdict on a murder charge

as an alternative to the charge of aggravated murder. Both

parties have latitude in responding to the arguments of opposing

counsel. State v. Brown (1988), 38 Ohio St.3d 305, 317, 528

N.E.2d 523, 538.

Appellant also alleges that the prosecutor improperly

inflamed the passions and prejudices of the jury by appealing to

the jury's emotional reaction to the crime to secure a conviction

out of moral indignation. A closing argument that goes beyond

the record may constitute prejudicial error, particularly where

the remarks call for the jury to convict in order to meet a

public demand. However, the closing argument must be reviewed in

its entirety to determine if the prosecutor's remarks were

prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17

O.O.3d 92, 97, 407 N.E.2d 1268, 1273. In the instant cause, we

conclude that a review of the prosecutor's closing argument in

its totality discloses no prejudice to the appellant. There are

several references throughout the closing argument that the jury

should decide the case based upon the evidence and the law.

Further, the court instructed the jury to decide the case on the

evidence. As has been previously stated, it is presumed that the

jury will follow the instructions given to it by the judge.

State v. Henderson, 39 Ohio St.3d at 33, 528 N.E.2d at 1246.

Appellant also asserts prosecutorial misconduct, in that the

prosecution misinformed the jury on the law by giving an overly

broad definition of an element of a "theft offense," and that

because of this definition, Loza could be convicted of a theft

offense by a mere finding that he used the victims' property

without their consent.

The statements made by counsel in closing arguments do not

govern the law that should be applied in this case. The trial

court gave the charge with regard to aggravated robbery and

defined each term in the charge. The trial court defined "theft"

as follows: "[T]he term 'theft' as used in this case means

knowingly obtaining property owned by another without the owner's

consent and for the purpose of depriving the owner of that

property." This is the law that governed this case. We presume

that the jury followed the instructions of the judge.

Without reservation, we can say beyond a reasonable doubt

that, despite the prosecutor's comments, the jury would have

found Loza guilty; therefore, the conviction need not be

reversed. Appellant's seventeenth proposition of law is

meritless.

M

In his nineteenth proposition of law, appellant contends

that he was deprived of due process of law, because the jury had

the entire videotaped confession replayed during its

deliberations.

Ohio courts follow the majority rule which permits the

replaying of a videotape exhibit during jury deliberations.

There is no prejudicial error in the jury's viewing a second time

an exhibit properly admitted into evidence. State v. Clark

(1988), 38 Ohio St.3d 252, 257, 527 N.E.2d 844, 851. Generally,

the propriety of sending a defendant's confession into the jury

room rests within the sound discretion of the trial judge. State

v. Doty (1916), 94 Ohio St. 258, 266-267, 113 N.E. 811, 814.

Because this court believes that it is not a per se abuse of

discretion to allow videotape recordings to be replayed in the

jury room, the only question remaining on this aspect is whether

it was an abuse of discretion to replay the tape before the

instant jury. We do not believe that the trial court's action

amounted to an abuse of discretion. Thus, we reject appellant's

nineteenth proposition of law.

N

Appellant's twenty through twenty-third and thirty-first

propositions of law pertain to the trial court's instructions

given during the guilt phase of the trial. Because Loza raises

these objections for the first time here, he has waived all but

plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13, 3

OBR 360, 361, 444 N.E.2d 1332, 1333.

In proposition of law twenty, appellant argues that the

trial court erred by instructing the jury that the duty of

punishment may be placed by law on the court. We already have

rejected this argument above.

In proposition of law twenty-one, appellant argues that the

trial court failed to instruct the jury on contributing to the

delinquency or unruliness of a minor. Loza failed to object to

the trial court's instructions and, therefore, he must

demonstrate that but for the error, the outcome of the trial

clearly would have been different. Crim. R. 30(A); State v. Long

(1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph

two of the syllabus.

The jury acquitted Loza of the specification in Counts III

and IV, pertaining to the aggravated murder of Cheryl Senteno and

Jerri Jackson, and recommended thirty years to life imprisonment

as to Count I, pertaining to the aggravated murder of Georgia

Davis. With regard to those charges, the argument is moot.

Because Count II contains multiple specifications, the

finding of guilt on any other specification is sufficient to

warrant the death penalty. State v. Mapes (1985), 19 Ohio St.3d

108, 112, 19 OBR 318, 322, 484 N.E.2d 140, 145. The jury

convicted Loza of R.C. 2929.04(A)(3) (escape detection), (A)(5)

(course of conduct) and 2929.04(A)(7) (felony murder)

specifications. The trial court merged the R.C. 2929.04(A)(3)

and the 2929.04(A)(5) specifications and instructed the jury "to

consider those two circumstances as a single aggravating

circumstance." Accordingly, even a finding of plain error would

not affect the sentence. Therefore, we overrule appellant's

twenty-first proposition of law.

In proposition of law twenty-two, appellant argues that the

trial court's instructions on "purpose" created an

unconstitutional conclusive presumption and relieved the state of

its burden to prove this element beyond a reasonable doubt.

The trial court defined "purpose" as follows: "Purpose and

intent mean the same thing. *** The purpose with which a person

does an act is determined from the manner in which it is done,

the weapon used, and all the other facts and circumstances in

evidence. If a wound is inflicted upon a person with a deadly

weapon in a manner calculated to destroy life, the purpose to

cause the death may be inferred from the use of the weapon." The

trial court did not create a conclusive presumption with this

instruction. The court used the word "may," indicating that this

was a permissible presumption -- one the jury could choose to

accept or not. See State v. Edwards, 49 Ohio St.2d at 45, 3

O.O.3d at 26, 358 N.E.2d at 1061. This proposition of law is

without merit.

In his next proposition of law, appellant asserts that the

trial court erred in giving a supplemental charge to the jury.

The supplemental charge that the trial court gave was previously

approved in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d

188, paragraph two of the syllabus.

After deliberating for a protracted period of time, the jury

asked for clarification on how to decide a specification if a

unanimous verdict could not be reached. The court advised the

jury to exhaust all reasonable efforts to reach a unanimous

verdict, gave the Howard charge, and told the foreman to note on

the verdict any failure to reach a unanimous verdict. After

continuing its deliberations for several more hours, the jury

reached a unanimous verdict.

Because the trial court gave a supplemental instruction that

was previously approved by this court, appellant's twenty-third

proposition of law is without merit.

In proposition of law thirty-one, appellant contends that

the trial court committed error by instructing the jury in

accordance with the statutory definition of "reasonable doubt" in

R.C. 2901.05(D). In State v. Van Gundy (1992), 64 Ohio St.3d

230, 232, 594 N.E.2d 604, 606, this court stated: "'The

definition of "reasonable doubt" set forth in R.C. 2901.05

correctly conveys the concept of reasonable doubt and, therefore,

is not an unconstitutional dilution of the state's requirement to

prove guilt beyond a reasonable doubt.'" Citing State v. Nabozny

(1978), 54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E. 2d 784,

paragraph two of the syllabus. This contention, therefore, is

rejected.

O

In proposition of law twenty-four, appellant argues that the

trial court erred by allowing the prosecutor to inject Loza's

future dangerousness into the sentencing proceedings.

During the sentencing phase, the prosecution asked defense

psychologist Dr. Fisher if Loza regretted the offense and if Loza

would do it again under the same circumstances. Fisher responded

that Loza did not express any regrets over the deaths and that he

would commit the offenses again under the same circumstances.

The prosecutor also referred to the lack of remorse Loza

displayed in his videotaped confession.

Our review of the record indicates that these comments were

not to be interpreted as non-statutory aggravating circumstances,

but rather, were related to Loza's "history, character, and

background" as specified in R.C. 2929.04(B). The trial court

instructed the jury on statutory aggravating circumstances and

mitigating factors only. Appellant's contention is without

merit.

P

In his twenty-fifth proposition of law, appellant contends

that the prosecutor's sentencing remarks denied him a fair

penalty determination. Reversal on this issue requires a finding

of plain error because Loza did not object to these remarks at

trial. In our independent assessment, we find that no plain

error exists. Any impropriety in the prosecution's argument did

not materially prejudice Loza.

A prosecutor can freely argue the weight to be given to

potentially mitigating factors. The weight to be given such

evidence is up to the individual decision-maker, who must be

allowed to freely decide whether to give any weight to the

mitigating evidence. State v. Steffen, 31 Ohio St.3d 111, 31 OBR

273, 509 N.E.2d 383, at paragraph two of the syllabus. The

prosecution's remarks were properly directed to the weight to be

given to the mitigating factors presented by Loza.

Appellant also contends the prosecutor sought to inject

non-statutory aggravating circumstances into the case by making

comments about one of the victims being pregnant, by stating that

there were four victims, and by mentioning Loza's gang

affiliations. It is true that the nature and circumstances of an

offense are not a statutory aggravating circumstance. However,

"R.C. 2929.04(B) requires the jury, trial court, or three-judge

panel to 'consider, and weigh against the aggravating

circumstances proved beyond a reasonable doubt, the nature and

circumstances of the offense ***.'" (Emphasis sic.) State v.

Stumpf (1987), 32 Ohio St.3d 95, 99, 512 N.E.2d 598, 604.

Appellant also contends that his death sentence should be

reversed because the prosecution's comments about the murder of a

pregnant woman and the loss of many expected years of life

allegedly violates Ohio law as improper victim-impact evidence.

Although reliance upon victim-impact evidence in arguing for the

death penalty is improper and constitutes error in the sentencing

phase of a capital trial, the same evidence may be admissible,

relevant evidence in the guilt phase of the proceedings.

No prosecutorial misconduct deprived Loza of his right to a

fair and reliable penalty determination. Appellant's

twenty-fifth proposition of law is without merit.

Q

In his twenty-sixth proposition of law, appellant contends

that the trial court discounted certain mitigating evidence

offered by Loza, because it was not relevant to the

appropriateness of the death penalty.

The trial court did not discount the mitigating evidence

presented by appellant; it determined that the aggravating

circumstances outweighed the mitigating factors beyond a

reasonable doubt. The weight to be given mitigating factors is

left to a sentencing authority's sound judgment. State v. Mills,

62 Ohio St.3d at 376, 582 N.E.2d at 988. As noted below, we

agree with the trial court's assessment on this issue. This

proposition is rejected.

R

In proposition twenty-seven, appellant claims that he was

denied effective assistance of counsel.

A reversal based upon a claim of ineffective assistance of

counsel requires the defendant to show, first, that counsel's

performance was deficient and, second, that the deficient

performance prejudiced his defense so as to deprive him of a fair

trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104

S.Ct. 2052, 2064, 80 L.E.2d 674, 693. The proper standard for

judging attorney performance is whether the attorney provided

reasonably effective assistance, considering all the

circumstances. When a convicted defendant complains of the

ineffectiveness of counsel's assistance, the defendant must show

that counsel's representation fell below an objective standard of

reasonableness. Id. at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at

693. The ultimate focus must be on the fundamental fairness of

the proceeding that is being challenged. Id. at 696, 104 S.Ct.

at 2069, 80 L.Ed.2d at 699. If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice, that course should be followed. Id. at 697, 104 S.Ct.

at 2069, 80 L.Ed.2d at 699. With regard to the required showing

of prejudice, the proper standard requires the defendant to show

that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at

698.

Even though defense counsel did not raise at trial the

issues in propositions of law three, seven through nine, eleven

through eighteen, twenty and twenty-one, twenty-eight, and

thirty-one, defense counsel's performance did not fall below an

objective standard of reasonableness. Furthermore, Loza does

not demonstrate that there is a reasonable probability that, but

for the alleged errors, the result of the proceeding would have

been different. Appellant's ineffective assistance of counsel

claim is overruled.

S

In proposition of law twenty-eight, appellant argues that

the trial court erred in imposing a thirty years to life sentence

and a three-year term of imprisonment consecutive to a death

penalty.

The prison sentence is rendered moot by the imposition of

the death sentence.

Propositions of law twenty-nine and thirty pertain to

residual doubt. In proposition of law twenty-nine, appellant

relies upon residual doubt to challenge the appropriateness of

his death sentences. Appellant asserts numerous factors that

purportedly create a residual doubt with respect to his guilt.

These factors include the trauma of his childhood, his father

abandoning the family when Loza was very young, his surreptitious

entrance into the United States to be reunited with his mother,

and his emotional insecurity coupled with his desire to protect

his girlfriend and unborn child. In addition, appellant argues

that Jackson's testimony was not credible, and that there was no

scientific evidence connecting Loza to the murders.

These matters were presented to the jury, the trial judge,

and the court of appeals, all of whom found no residual doubt.

In our independent assessment of the factors presented by Loza,

we support the findings of the lower courts. Appellant's

twenty-ninth proposition of law is without merit.

In proposition of law thirty, appellant argues that the

court of appeals erred in its independent sentence review by

deferring to the trial court's finding that no residual doubt

existed. The court of appeals did not simply defer to the trial

court's finding; it supported the findings after conducting its

own independent review of the case and the mitigating factors

presented by Loza. Proposition of law thirty is without merit.

T

In proposition of law thirty-two, appellant asserts that

Ohio's death penalty proportionality review is unconstitutional.

This claim is summarily rejected. See State v. Steffen, supra,

paragraph one of the syllabus.

In his final proposition of law, appellant challenges the

constitutionality of Ohio's death penalty statute. This argument

also is summarily rejected. See State v. Jenkins, supra (15 Ohio

St.3d 164, 15 OBR 311, 473 N.E.2d 264).

II

R.C. 2929.05 requires that we perform an independent review

of the record to determine whether the aggravating circumstances

outweigh the mitigating factors asserted beyond a reasonable

doubt.

The aggravating circumstances are as follows: Loza, with

prior calculation and design, murdered four people for the

purpose of escaping detection, apprehension, trial, or punishment

for other offenses (R.C. 2929.04[A][3]); Loza murdered the four

victims as part of a course of conduct involving the purposeful

killing of two or more persons (R.C. 2929.04[A][5]); and Loza

murdered the four victims while acting as the principal offender

in the commission of aggravated robbery (R.C. 2929.04[A][7]).

As to the statutory mitigating factors, the evidence shows

that Loza was aware that Dorothy Jackson was the target of

chronic physical and verbal abuse from Davis, Mullins and

Senteno. In this respect, the evidence indicates that their

actions may have "induced or facilitated" the offense. R.C.

2929.04(B)(1). Due to the same set of circumstances, Loza may

also have been under duress, coercion or strong provocation at

the time of the murders. R.C. 2929.04(B)(2). Loza was not under

any mental disease or defect and did not lack mental capacity at

the time of the murders; therefore, R.C. 2929.04(B)(3) is

inapplicable. Loza was close to nineteen years old at the time

the murders occurred; accordingly, R.C. 2929.04(B)(4) is a

mitigating factor. The record does not indicate that Loza had a

significant history of prior criminal convictions or delinquency

adjudications; therefore, R.C. 2929.04(B)(5) is a mitigating

factor. R.C. 2929.04(B)(6) is inapplicable as a mitigating

factor because Loza was the principal offender. We already have

evaluated the mitigating factor of residual doubt as required by

R.C. 2929.04(B)(7).

Independently weighing the aggravating circumstances against

the mitigating factors, we find that the aggravating

circumstances outweigh the mitigating factors beyond a reasonable

doubt.

III

Pursuant to our statutory duty, we now assess whether the

imposition of the death penalty in this case is disproportionate

or excessive when compared to other cases in which we have

imposed the death penalty.

After conducting a proportionality review and comparing

Loza's case with similar cases, we find that Loza's death

sentence is proportionate and not excessive. See State v. Brown

(1988), 38 Ohio St. 3d 305, 528 N.E.2d 523; State v. Frazier

(1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Hooks (1988),

39 Ohio St.3d 67, 529 N.E.2d 429; State v. Lott (1990), 51 Ohio

St.3d 160, 555 N.E.2d 293.

Accordingly, appellant's convictions and sentences are

affirmed.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.

Sweeney and Pfeifer, JJ., concur.

FOOTNOTES:

1 The defendant in Crane testified that he had been detained

in a windowless room for a protracted period of time, that he had

been surrounded by as many as six police officers during the

interrogation, that he had repeatedly requested and been denied

permission to telephone his mother, and that he had been badgered

into making a confession.

2 See North Carolina v. Butler (1979), 441 U.S. 369, 373, 99

S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (an express written or oral

statement of waiver of the right to remain silent or the right to

counsel is usually strong proof of the validity of that waiver).

3 One of the death specifications with which the appellant

was charged with respect to the murders of Mullins and Davis was

the commission of the offense to escape detection, apprehension,

trial or punishment for another offense committed by the

offender, namely, the crimes of child stealing and contributing

to the unruliness of a minor, pursuant to R.C. 2929.04(A)(3),

2905.04(A) and 2919.24.

4 R.C. 2945.59 provides:

"In any criminal case in which the defendant's motive or

intent, the absence of mistake or accident on his part, or the

defendant's scheme, plan, or system in doing an act is material,

any acts of the defendant which tend to show his motive or

intent, the absence of mistake or accident on his part, or the

defendant's scheme, plan, or system in doing the act in question

may be proved, whether they are contemporaneous with or prior or

subsequent thereto, notwithstanding that such proof may show or

tend to show the commission of another crime by the defendant."