State v. Campbell

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

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

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

(No. 91-2137 -- Submitted October 13, 1993 -- Decided

April 20, 1994.)

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

C-890330.

Appellant, Jerome Campbell, convicted of the aggravated

murder of Henry Turner, appeals his convictions and death

sentence.

Turner lived in an apartment at 1008 York Street,

Cincinnati. Campbell had formerly lived in the same apartment

building as Turner and had been in Turner's apartment, but had

moved out about two months before the murder.

On December 23, 1988, Turner's neighbor, Leon Callins,

visited Turner and left at 8:00 p.m. The next morning, Callins

found Turner lying dead, a knife sticking through his wrist.

Callins called the police.

The police found Turner's apartment in disarray. Dresser

drawers were lying on the floor. Items lay jumbled on the

bedroom and living room floors. Turner's mattress had been

pulled off the bed frame, and his television lay facedown on

the floor. Turner's normally locked liquor cabinet was open.

According to Callins, Turner kept a neat apartment, and the

mess had not been there the night before. Police found a set

of knives in an open drawer in Turner's kitchen; the murder

weapon was apparently taken from that drawer.

Police also found Campbell's fingerprint and palm print at

the crime scene. The fingerprint was on a light bulb found on

the floor just outside Turner's apartment. The palm print was

on the outside surface of the door leading from the hallway

into Turner's kitchen, directly above the lock.

In an autopsy examination, a deputy Hamilton County

coroner found two stab wounds in Turner's chest and a "through

and through stab wound of the right wrist"; i.e., the knife had

been plunged all the way through Turner's wrist. Turner also

had a half-inch-deep cut on the chin and a defense wound on his

left thumb.

Donna Roberts lived at 1010 York Street. She knew

Campbell as "Scar Face" or "Burnt Face," nicknames deriving

from the burn scars covering one side of his face. Around 11:00

p.m. on December 23, while walking to a local bar, Roberts saw

someone in an alley between 1010 York and 1008 York. She did

not see the person's face, but said he or she wore white

jogging pants.

About two hours later, Roberts was walking home along York

Street, which required her to pass an alley separating 1008

York from a vacant building. Passing the alley, Roberts was

startled to see Campbell standing in the alley, just inches

away from her. Campbell was wearing dark pants and held what

might have been a bottle. Roberts said, "[H]ow you doing?"

Campbell said, "Hi."

On December 30, Officer Camden and Specialist Rowland of

the Cincinnati police arrested Campbell at his sister's

apartment and later interrogated him at the police station. An

interrogating police officer stated that Campbell admitted the

burglary but denied the murder. Campbell also said that he had

never changed a light bulb at 1008 York, except in his own

apartment.

After the police took Campbell away, his sister let them

search her apartment. (Campbell disputes the voluntariness of

her consent.) In a closet, officers found a pair of gym shoes

stained with human blood. Under a bed, they found an empty

Bacardi rum bottle. A code number on the label matched the

number on a Bacardi bottle found in Turner's apartment.

Records of the Castleton Beverage Corporation (which makes

Bacardi) showed that all bottles with that code had gone in one

shipment to Covington, Kentucky.

Campbell's ex-girlfriend, Estella "Niecy" Roe, visited him

in the Hamilton County Jail as he awaited trial. During one

visit, Campbell admitted to Roe that "he did it" (he later

recanted) and asked her to lie for him. Later, Campbell sent

Roe a letter postmarked January 23, 1989, setting forth a

detailed alibi for Roe to testify to. Unwilling to lie for

Campbell, Roe gave the letter to police.

Ronys Clardy and Angelo Roseman, both convicted felons,

were in jail at the same time. Both later testified that

Campbell admitted to them that he had murdered Turner.

Campbell mentioned to both Clardy and Roseman that he had seen

a woman, presumably Donna Roberts, outside the apartment house

after the murder. Campbell told Roseman he was afraid the

woman might be able to identify him.

The jury convicted Campbell of aggravated murder, R.C.

2903.01(B) (felony-murder), a felony-murder specification, R.C.

2929.04(A)(7), and two counts of aggravated burglary, R.C.

2911.11(A)(1) and (A)(3). After a penalty hearing, Campbell

was sentenced to death. The court of appeals affirmed.

The cause is before this court upon an appeal as of right.

Gloria Eyerly, Ohio Public Defender, Jane P. Perry and

Joseph Wilhelm, Assistant Public Defenders, for appellant.

Joseph T. Deters, Hamilton County Prosecuting Attorney,

and Christian J. Schaefer, Assistant Prosecuting Attorney, for

appellee.

Pfeifer, J. In this appeal, Campbell advances thirty

propositions of law. For the reasons that follow, we affirm

Campbell's convictions and death sentence.

I

Waiver and Plain Error

Most of the issues Campbell now seeks to raise were not

preserved by objection at trial. "It is a general rule that an

appellate court will not consider any error which counsel for a

party complaining of the trial court's judgment could have

called but did not call to the trial court's attention at a

time when such error could have been avoided or corrected by

the trial court." State v. Childs (1968), 14 Ohio St.2d 56, 43

O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.

Such errors are waived.1

Under Crim.R. 52(B), we have power to recognize "[p]lain

errors or defects involving substantial rights * * * although

they were not brought to the attention of the court."

However, this rule may be invoked only in rare cases. Thus, an

alleged error "does not constitute a plain error or defect

under Crim.R. 52(B) unless, but for the error, the outcome of

the trial clearly would have been otherwise." State v. Long

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

paragraph two of the syllabus.2

II

Presentence Investigation

In his twenty-ninth proposition of law, Campbell contends

that the court committed reversible error by ordering a

presentence investigation report ("PSI") that the defense did

not request.3

After the guilt phase, defense counsel said: "Your honor,

we would like not to have a presentence investigation * * * ."

The penalty phase was tried without a PSI, resulting in the

jury's recommendation of death. After the jury was discharged,

the trial judge told counsel: "I would like to order a

presentence investigation and report." Campbell did not

object, and the PSI was compiled. At the subsequent

sentencing hearing, defense counsel stated:

"Your honor, first, if it please the Court, I would

indicate that both Mr. Krumbein [defense co-counsel] and I have

reviewed the presentence investigation that was ordered by the

Court. There are no statements that can be added, no

corrections, that I can see that need to be mentioned on the

record."

When the judge pronounced sentence, he said that he had

"made an independent review of, and considered all of the

relevant evidence raised at trial, including the testimony,

exhibits, other evidence and arguments of counsel, along with,

now, the presentence investigation * * * ."

The PSI cited a police officer's opinion "that this was a

very brutal offense committed against an elderly, helpless man

and that the defendant should receive a maximum sentence." The

PSI also related the officer's opinion "that some of the

wounds * * * appeared to be torture wounds."

But Campbell never objected to the PSI's compilation or

consideration. Under State v. Long, he must show plain error

by showing that the sentence would clearly have been otherwise

but for the error. Yet, the circumstances indicate that the

PSI had little effect on the sentence. While the judge said

that he considered the PSI, he cited no specific aspect of it

that impressed him. Indeed, he did not deem the PSI worth

mentioning in his subsequent written opinion.

Moreover, though the judge considered the PSI, we see no

reason to presume that he gave weight, or even credence, to

everything in it. Specifically, we see no evidence that the

judge's sentencing decision was affected by the officer's

opinion regarding "torture wounds." The officer was not

qualified to render such an opinion, and we think it likely

that this experienced trial judge understood that. And, while

Campbell characterizes the officer's opinion as "inflammatory,"

we recognize that judges are not easily swayed by irrelevant

emotional responses.

Campbell's criminal record was also in the PSI. However,

the mitigating factor of R.C. 2929.04(B)(5), lack of a

significant criminal record, was absent in this case with or

without the PSI, since Campbell did not attempt to prove that

mitigating factor. See, e.g., State v. Waddy (1992), 63 Ohio

St.3d 424, 449, 588 N.E.2d 819, 838.

Finally, we note that both the jury and the court of

appeals unanimously found beyond a reasonable doubt that the

aggravating circumstance outweighed the mitigating factors,

even though neither group ever saw the PSI.4 That is

significant, for Campbell must show that the trial judge

clearly would have sentenced him to life but for the PSI. We

can hardly be certain of that, since twelve jurors and three

appellate judges found that Campbell deserved a death sentence

without seeing the PSI.

"Notice of plain error * * * is to be taken with the

utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice." Long, supra,

paragraph three of the syllabus. It is far from clear that

justice has been miscarried here, and so we cannot find plain

error. Accordingly. we hold the PSI issue waived and overrule

Campbell's twenty-ninth proposition.

In his twenty-first proposition of law, Campbell recasts

the PSI issue in Sixth Amendment terms. Campbell claims he did

not receive the effective assistance of counsel, because

counsel did not object when the trial court ordered the PSI.

A defendant who claims ineffective assistance must show

deficient performance by counsel and resulting prejudice.

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

2052, 2064, 80 L.Ed.2d 674, 693. The performance inquiry

requires the court to ask whether, considering all the

circumstances, "counsel's representation fell below an

objective standard of reasonableness." Id. at 688, 104 S.Ct.

at 2064, 80 L.Ed.2d at 693. The court "must indulge a strong

presumption that counsel's conduct falls within the wide range

of reasonable professional assistance * * *." Id. at 689, 104

S.Ct. at 2065, 80 L.Ed.2d at 694. The prejudice inquiry "is

whether there is a reasonable probability that, absent the

errors, the factfinder would have" acquitted the defendant or,

in a capital case, spared him a death sentence. Id. at 695,

104 S.Ct. at 2068-2069, 80 L.Ed.2d at 698. "A reasonable

probability is a probability sufficient to undermine confidence

in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at

698.

Significantly, the judge did not order the PSI until after

discharging the jury. Campbell had already been convicted by

the jury. His only chance was to persuade the judge to reject

the jury's recommendation on the basis of the same evidence

that had already failed to sway the jury. When the judge

erroneously ordered the PSI, counsel could have "logically

decide[d] to take the chance that a PSI may produce something

[favorable] he had missed * * *." State v. Hutton (1990), 53

Ohio St.3d 36, 42, 559 N.E.2d 432, 441. And, a competent

attorney might well have wanted the judge to see the PSI even

though he had not wanted the jury to see it. Counsel could

reasonably assume that the judge would be unaffected by any

inflammatory material in the PSI, since a judge is legally

presumed to consider only relevant, competent, material

evidence. State v. Post (1987), 32 Ohio St.3d 380, 384, 513

N.E.2d 754, 759.

Campbell further argues that counsel should have objected

to the inclusion of Officer Zieverink's inflammatory statements

in the PSI. But only the trial judge saw the PSI, and that

same judge would have performed any redaction. It was

objectively reasonable for counsel not to request redaction,

since the judge would see the entire PSI -- redacted or not.

III

Fourth Amendment Issues

In his second and twelfth propositions of law, Campbell

claims police illegally searched his sister Pamela's

apartment. He therefore contends that the trial court should

have suppressed the items found in the apartment. However,

Campbell withdrew his motion to suppress the fruits of the

search during the suppression hearing. Hence, the threshold

question is whether Campbell waived his challenge to the

search's legality.

We find that he did. By failing to file a motion to

suppress illegally obtained evidence, a defendant waives any

objection to its admission. State v. Wade (1978), 53 Ohio

St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244, paragraph three of

the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98

S.Ct. 3138, 57 L.Ed.2d 1157; State v. F.O.E. Aerie 2295 (1988),

38 Ohio St.3d 53, 526 N.E.2d 66, paragraph two of the

syllabus. Obviously the same result occurs when a motion is

filed but later withdrawn.

Campbell, however, argues that withdrawing the motion

should not be deemed a waiver, because the trial court

illegally forced him to choose between two constitutional

rights. When Campbell testified at the suppression hearing,

the prosecutor asked him whether he was near Turner's residence

on the night of December 23. Defense counsel objected, but

the trial court overruled the objection. Only then did defense

counsel withdraw the motion.

Campbell argues that the trial court, by overruling his

objection, forced him to withdraw the motion in order to avoid

self-incrimination. We disagree. Answering the prosecutor's

question could not have incriminated Campbell, because "when a

defendant testifies in support of a motion to suppress evidence

on Fourth Amendment grounds, his testimony may not thereafter

be admitted against him at trial on the issue of guilt * * *."

Simmons v. United States (1968), 390 U.S. 377, 394, 88 S.Ct.

967, 976, 19 L.Ed.2d 1247, 1259.

Campbell also argues that his counsel rendered ineffective

assistance by withdrawing the motion. Campbell speculates that

counsel did not know Campbell's suppression testimony was

inadmissible at trial.

However, counsel's decision "was reasonable considering

all the circumstances." Strickland, 466 U.S. at 688, 104 S.Ct.

at 2065, 80 L.Ed.2d at 694. First, even though Campbell's

hearing testimony was inadmissible in the state's

case-in-chief, the court might have allowed its use to impeach

Campbell if he later chose to testify at trial. See United

States v. Salvucci (1980), 448 U.S. 83, 93-94, 100 S.Ct. 2547,

2554, 65 L.Ed.2d 619, 629; 4 LaFave, Search and Seizure (2 Ed.

1987) 240-242, Section 11.2(d), and 349-351, Section 11.3(g); 1

Hall, Search and Seizure (2 Ed. 1991) 244-245, Section 5:42.

Second, Campbell's testimony might have led the state to the

discovery of other evidence against him. Of course, the

defense could have objected that such evidence was "fruit of

the poisonous tree," but that would have been hard to prove;

defense counsel could have reasonably decided to play it safe

by withdrawing the motion. To speculate, as Campbell urges,

that counsel simply did not know the law is inconsistent with

the "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance * * *."

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at

694. We therefore reject Campbell's ineffective-assistance

argument.

IV

Fifth Amendment Issues

In his ninth proposition of law, Campbell contends his

statements were inadmissible because police did not advise him

of his rights, as required by Miranda v. Arizona (1966), 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. But the trial judge

denied the motion to suppress statements, implicitly finding

that the police gave the Miranda warnings.

The record of the suppression hearing supports this

finding. Specialist Kerry Rowland testified that Officer Ron

Camden read Campbell's rights from a form printed on Camden's

pocket calendar, which the state placed in evidence. Campbell

said he understood his rights, was willing to talk, and had

nothing to hide. Campbell testified that the officers gave no

warnings, but the trial court evidently believed Rowland. We

defer to its findings, as we must. See State v. Mills (1992),

62 Ohio St.3d 357, 366, 582 N.E.2d 972, 982; State v. Waddy,

supra, 63 Ohio St.3d at 430, 588 N.E.2d at 825.

Campbell also argues that his waiver was the product of

police "trickery," hence involuntary. According to Campbell,

police arrested him on an unrelated rape charge, obtained his

Miranda waiver without telling him that he would also be

questioned about the murder, and interrogated him about the

rape before bringing up the murder. However, the record of the

suppression hearing does not support Campbell's allegation that

he was arrested for rape. It is true that Officer Camden so

testified at trial, but Campbell did not ask the trial court to

reconsider its ruling in light of Camden's trial testimony, and

we decline to hold that a trial court "erred in not

reconsidering its suppression ruling sua sponte." Govt. of

Virgin Islands v. Hernandez (C.A.3, 1975), 508 F. 2d 712, 714,

fn.3. See, also, 4 LaFave, Search and Seizure (2 Ed. 1987)

521, Section 11.7(c).

Even were we to consider Camden's trial testimony, we

could not find Campbell's Miranda waiver involuntary. "[A]

suspect's awareness of all the possible subjects of questioning

in advance of interrogation is not relevant to determining

whether the suspect voluntarily, knowingly, and intelligently

waived his Fifth Amendment privilege." Colorado v. Spring

(1987), 479 U.S. 564, 577, 107 S.Ct. 851, 859, 93 L.Ed.2d 954,

968.

Campbell claims that the police conduct amounted to an

implied "affirmative misrepresentation" of the interrogation's

scope. Spring, 479 U.S. at 576, 107 S. Ct. at 858, 93 L.Ed.2d

at 967, fn. 8. To begin with, it is unclear how an implied

misrepresentation could ever be an affirmative one. But that

need not detain us, for this case so closely resembles Spring

as to make any "affirmative misrepresentation" finding

inconceivable. In Spring, federal agents arrested a suspected

murderer on firearms charges. He waived his rights, and the

agents questioned him on the firearms charges before asking

about the murder. 479 U.S. at 566-569, 107 S.Ct. at 853-854,

93 L.Ed.2d at 961-962. The Spring court found no

misrepresentation, and we see no basis for finding one here.

Campbell also argues that counsel rendered ineffective

assistance because they did not specifically argue that

Campbell's Miranda waiver was obtained by "trickery." (See

proposition of law twenty-one.) However, we cannot call

counsel ineffective for overlooking this weak argument.

V

Sufficiency of Evidence

In his tenth proposition of law, Campbell argues that the

evidence was insufficient to support a conviction. He contends

that the state failed to prove both that he killed Turner and

that he harbored a purpose to kill. Neither claim has merit.

When a defendant challenges the sufficiency of the

evidence, "the 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." (Emphasis sic.)

Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct 2781,

2789, 61 L.Ed.2d 560, 573.

The state's evidence, if believed, would allow a rational

trier of fact to find guilt. Campbell's fellow jail inmates,

Clardy and Roseman, testified that Campbell admitted killing

Turner. Campbell attacks their credibility, but we may not

"substitute our evaluation of witness credibility for the

jury's." State v. Waddy, supra, 63 Ohio St.3d at 430, 588

N.E.2d at 825. Moreover, Campbell made a similar admission to

Estella Roe.

Campbell also asked Roe to provide him with a false

alibi. This strongly indicates consciousness of guilt. See

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

70, 107 N.E.2d 201, 203. Accord 2 McCormick on Evidence (4 Ed.

1992) 190, Section 265; 2 Wigmore on Evidence (Chadbourn Rev.

1979 and 1991 Supp.) 133, 137, Section 278(2).

Donna Roberts positively identified Campbell as the man

she saw lurking in the alley next to 1008 York Street on the

night of December 23. Campbell argues that Roberts could have

been mistaken, but that is a jury question. Waddy, supra.

Finally, Campbell's fingerprint was on the light bulb outside

Turner's apartment; his palm print was on Turner's door; and

his shoes were stained with blood.

Campbell also argues that the state failed to prove

purpose to kill. But Turner was stabbed four times in or near

vital areas (see discussion of third proposition of law,

infra), which does not suggest an accidental or reflexive

stabbing. We overrule Campbell's tenth proposition.

VI

Guilt-Phase Instructions

Campbell's third, fourth, fifth, and sixth propositions of

law, and a supplemental proposition filed by leave of court on

October 1, 1993, allege errors in the guilt-phase

instructions.

A

Lesser Included Offense

At trial, Campbell asked the trial court to instruct on

involuntary manslaughter as a lesser included offense of

aggravated murder. The court refused. In his third

proposition of law, Campbell argues that this refusal is

reversible error.

Involuntary manslaughter, R.C. 2903.04, is a lesser

included offense of aggravated murder. State v. Thomas (1988),

40 Ohio St.3d 213, 533 N.E.2d 286, paragraph one of the

syllabus. "The primary difference" between the two is that

aggravated murder requires purpose to kill, while involuntary

manslaughter requires only a killing as a proximate result of a

felony. State v. Jenkins (1984), 15 Ohio St.3d 164, 218, 15

OBR 311, 357, 473 N.E.2d 264, 310.

Thus, an involuntary manslaughter instruction is justified

"only when, on the evidence presented, the jury could

reasonably find against the state on the element of

purposefulness and still find for the state on the defendant's

act of killing another." Thomas, 40 Ohio St.3d at 216, 533

N.E.2d at 289. The court must view the evidence in the light

most favorable to the defendant. State v. Wilkins (1980), 64

Ohio St.2d 382, 388, 18 O.O.3d 528, 532, 415 N.E.2d 303, 308.5

Turner's wounds show a purposeful killing. The killer

inflicted four wounds in or near vital areas: two in the chest,

one in the chin, and one in which the killer drove his blade

all the way through Turner's wrist. (Campbell claims the wrist

is not a vital area. We disagree.) These wounds refute

Campbell's claim that he stabbed Turner "reflexively * * *

without purpose to kill and only so he could get away."

Nor does the evidence suggest that Turner was killed in a

struggle over the knife, as Campbell argues. The coroner

testified that one wound -- a cut on Turner's thumb -- was "a

defense wound. It is postulated [i.e., assumed] to occur as a

result of a struggle over the weapon. * * * Either a struggle

or an attempt to ward off." That assumption does not explain

Turner's four other wounds.

Campbell claims he entered Turner's apartment unarmed and

without purpose to kill. The evidence supports this claim, for

Turner was apparently killed with one of his own kitchen

knives. However, the issue is not what Campbell intended when

he broke in, but what he intended when he stabbed Turner. The

state did not allege, and did not have to prove, prior

calculation and design.

Even when the evidence is viewed in the light most

favorable to Campbell, the number and location of his victim's

wounds would compel any reasonable trier of fact to find intent

to kill. Therefore, an involuntary manslaughter instruction

would have been improper. We overrule Campbell's third

proposition of law.

B

Other Guilt-Phase Instructions

Campbell's other allegations of guilt-phase instructional

error also center on the issue of purpose. In his fourth

proposition of law, Campbell argues that the trial court erred

in defining "purpose" to the jury. According to Campbell, the

trial court's definition of "purpose" allowed the jury to find

purpose without finding, as R.C. 2903.01(D) requires for a

conviction, that the defendant "specifically * * * intended to

cause * * * death." Similarly, in his fifth proposition of

law, Campbell contends that the trial court gave a confusing

instruction on causation and foreseeability that may have

allowed the jury to convict without finding specific intent to

kill. See State v. Burchfield (1993), 66 Ohio St.3d 261, 263,

611 N.E.2d 819, 820-821 (dictum). In his sixth proposition of

law, Campbell argues that the jury could have interpreted an

instruction as a directed verdict on one element of aggravated

burglary.

Finally, in a supplemental proposition of law, Campbell

claims the trial court erred by instructing that purpose "is

determined from the manner in which [an act] is done, the means

or weapon used, and all the other facts and circumstances * * *

." According to Campbell, this allowed the jury to presume

(not merely infer) purpose to kill from the use of a weapon.

Campbell failed to object to these instructions at trial

and therefore must show that the trial's outcome would clearly

have been different but for the alleged errors. State v. Long,

supra. In our view, the challenged instructions did not

demonstrably determine the outcome. The trial court also

expressly instructed: "No person may be convicted of aggravated

murder unless he is specifically found to have intended to

cause the death of another." (Emphasis added.) Further, the

judge said: "It must be established * * * that at the time in

question there was present in the mind of the defendant a

specific intention to kill Henry Turner * * *." (Emphasis

added.) And immediately after the instruction at issue in the

supplemental proposition, the trial court instructed that

"purpose to kill may be inferred" from the use of a deadly

weapon to inflict wounds "in a manner calculated to destroy

life or inflict great bodily harm * * *." (Emphasis added.)

Campbell concedes that it is "impossible to determine"

whether the jurors applied these concededly correct

instructions. Therefore, we cannot say that the jury would

clearly have acquitted Campbell had the challenged instructions

not been given, especially since there was strong evidence of

specific intent to kill. (See discussion of third proposition

of law, supra.) Campbell argues that any uncertainty should be

resolved in his favor, but that would be inconsistent with

plain error analysis. Finding no plain error, we treat these

propositions as waived and need not reach their merits.

Campbell's fourth, fifth, sixth, and supplemental propositions

are therefore overruled.

Campbell also contends that his counsel rendered

ineffective assistance by not objecting to the instructions on

purpose, causation, and foreseeability (see proposition of law

twenty-one). However, counsel could reasonably have thought

the trial court's strong instructions on specific intent to

kill were sufficient to protect their client. Moreover, given

the evidence of purpose, the alleged instructional errors do

not undermine our confidence in the verdict. Campbell has

therefore failed to show "a reasonable probability that, but

for counsel's [failure to object], the result of the proceeding

would have been different." Strickland, 466 U.S. at 694, 104

S.Ct at 2068, 80 L.Ed.2d at 698.

VII

Improper Testimony

In his first proposition of law, Campbell claims the trial

court erred by allowing the following testimony regarding

Campbell's interrogation:

"A [Officer Camden] * * * I made the statement to

[Campbell] that I felt he had committed burglaries before with

people in the house asleep. At that point he says, yeah, I

did. And then he said * * * that he believed he was committing

burglaries in this case[.] * * * I told him the only difference

was -- is that this time Turner woke up and he killed him.

"Q [Prosecutor] Did he deny that?

"A He denied that."

The state argues that Campbell waived this issue by not

raising it in the court of appeals. We agree. See Toledo v.

Reasonover (1965), 5 Ohio St.2d 22, 34 O.O.2d 13, 213 N.E.2d

179; State v. Jones (1965), 4 Ohio St.2d 13, 33 O.O.2d 90, 211

N.E.2d 198. We therefore apply the plain error rule. See

State v. Broom (1988), 40 Ohio St.3d 277, 281, 533 N.E.2d 682,

689. Here, the other evidence of guilt was so strong that we

cannot say Campbell would clearly have been acquitted but for

Camden's testimony. Hence, we find no plain error and treat

the issue as waived.

VIII

Gruesome Photographs

In his eleventh proposition of law, Campbell challenges

the admission of gruesome photographs and slides. In a capital

case, such photographs are admissible if the probative value of

each one outweighs its danger of material unfair prejudice and

the photos are not repetitive or cumulative. State v. Maurer,

(1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768,

paragraph seven of the syllabus.

The court of appeals held any error waived, and for the

most part we agree. However, in objecting to the slides,

Campbell argued that they "would just be repetitive" of the

photos. He thus preserved his objection to State's Exhibit 13

(photo) and 28A (slide), which are indeed repetitive. Since

they are also gruesome (both exhibits show the knife in

Turner's wrist), it was error to admit both. However, we see

no prejudice in a single repetition of a highly relevant

image. We find the error harmless.

IX

Relevance of Forensic Testimony

Forensic serologist Denise Cargo testified for the state,

giving her expert opinion that Campbell's shoes were stained

with human blood. In his seventh proposition of law, Campbell

argues that Cargo's testimony was irrelevant, because she could

not draw any further conclusions (e.g., blood type) from the

stains. But Campbell's arguments go to weight, not relevance.

Obviously, human bloodstains on Campbell's shoes make it

somewhat likelier that he stabbed someone. See Evid.R. 401.

Campbell also argues that Cargo's testimony should have

been excluded under Evid. R. 403(A) because the jurors may have

been so impressed by her expertise that they overrated her

testimony's value. However, such speculation does not justify

silencing relevant testimony.

X

Cumulative Evidence

While testifying, Estella Roe read aloud Campbell's letter

urging her to lie for him. The letter itself was later

admitted as State's Exhibit 25. In his eighth proposition of

law, Campbell argues that the letter should have been excluded

as cumulative. However, Evid.R. 403(B) does not require

exclusion of cumulative evidence. The court has discretion to

admit or exclude it. We find no abuse of discretion and hence

overrule this proposition.

XI

Prosecutorial Misconduct

In his thirteenth proposition of law, Campbell claims that

prosecutorial misconduct denied him a fair trial in both

phases. However, Campbell failed to object at trial, waiving

any but plain error. We find no plain error. Many of the

alleged errors were quite minor, and many were offset by

instructions from the trial court. In no case can we find that

the alleged errors were so prejudicial that the outcome of the

trial or sentencing hearing would clearly have been otherwise

had they not occurred. Hence, the matters raised in Campbell's

thirteenth proposition are waived, and we need not reach their

merits.

Campbell's twentieth proposition of law alleges that

prosecutorial misconduct on voir dire affected the jury's

penalty phase deliberations. Campbell objected to none of the

alleged misconduct; thus, he waived the issue absent plain

error. The alleged misconduct is subtle, involving particular

choices of word or phrase. To find plain error, we would have

to assume that, after a trial on guilt or innocence and a

penalty phase featuring arguments by counsel and instructions

from the judge, the jury's sentencing recommendation was

determined by something the prosecutor said in voir dire. That

strikes us as implausible. See Darden v. Wainwright (1987),

477 U.S. 168, 183-184, 106 S.Ct. 2464, 2472-2473, 91 L.Ed.2d

144, 158-159, fn. 15.

XII

Penalty-Phase Instructions

In his fourteenth proposition of law, Campbell claims the

trial court erred by refusing to instruct the jury that it

could consider mercy during the penalty phase. This

proposition lacks merit. See State v. Lorraine (1993), 66 Ohio

St.3d 414, 417-418, 613 N.E.2d 212, 216-217.

In his fifteenth proposition of law, Campbell contends

that the penalty-phase instructions were erroneous. However,

at trial Campbell neither submitted proposed instructions nor

objected to the court's instructions. See Crim.R. 30(A).

Campbell's objections are therefore waived and cannot be the

basis for reversal. We overrule Campbell's fifteenth

proposition.

XIII

Other Penalty-Phase Issues

The trial court sentenced Campbell to death on Count One

of the indictment (aggravated murder) and to a prison term on

Count Two (aggravated burglary), to be served "consecutive to

Count One." In his seventeenth proposition of law, Campbell

argues that the trial court could not make a prison sentence

consecutive to a death sentence. While the prison sentence is

rendered moot by the imposition of the death sentence, we find

no error. Cf. State v. Brown (1988), 38 Ohio St.3d 305,

317-318, 528 N.E.2d 523, 538-539.

In his eighteenth proposition of law, Campbell attacks the

trial court's weighing of the aggravating circumstance and

mitigating factors. First, Campbell complains that the trial

court weighed "nonstatutory aggravating circumstances" against

him. We disagree. Although the sentencing opinion refers

several times to "aggravating circumstances," the trial judge

understood perfectly well that there was only one aggravating

circumstance: indeed, he specifically identified it in his

opinion. The opinion correctly states that the aggravating

circumstance was the commission of aggravated murder "while the

defendant was committing aggravated burglary."

XIV

Ineffective Assistance

In his twenty-first proposition of law, Campbell charges

his trial counsel with ineffective assistance, listing thirteen

alleged errors. We have analyzed several of these claims

above; here, we turn to those not already discussed.

Campbell argues that counsel should have raised several

objections during voir dire and trial. But, "failure to object

to error, alone, is not enough to sustain a claim of

ineffective assistance * * *." State v. Holloway (1988), 38

Ohio St.3d 239, 244, 527 N.E.2d 831, 837. Because

"[o]bjections tend to disrupt the flow of a trial, [and] are

considered technical and bothersome by the fact-finder,"

Jacobs, Ohio Evidence (1989), at iii-iv, competent counsel may

reasonably hesitate to object in the jury's presence.

Campbell claims counsel should have objected to the trial

court's reasonable doubt instruction and to the instruction

that the jury's penalty-phase verdict was a

"recommendation." However, it was reasonable not to object.

See State v. Nabozny (1978), 54 Ohio St.2d 195, 8 O.O.3d 181,

375 N.E.2d 784, vacated on other grounds (1978), 439 U.S. 811,

99 S.Ct. 70, 58 L.Ed.2d 103, and State v. Hicks (1989), 43 Ohio

St.3d 72, 79-80, 538 N.E.2d 1030, 1038-1039. Accordingly, his

twenty-first proposition is overruled.

In his twenty-second proposition of law, Campbell accuses

his appellate counsel of ineffective assistance because they

did not raise twenty-six issues in the court of appeals.

Counsel need not raise all nonfrivolous issues on appeal.

Jones v. Barnes (1983), 463 U.S. 745, 751, 103 S.Ct. 3308,

3312-3313, 77 L.Ed.2d 987, 993. Campbell's counsel raised

thirteen assignments of error in the court of appeals. Counsel

could have reasonably decided they could not add twenty-six

more issues without "burying good arguments * * * in a verbal

mound made up of strong and weak contentions." 463 U.S. at

753, 103 S.Ct. at 3313, 77 L.Ed.2d at 994. Moreover, several

issues on Campbell's list were waived at trial, and some were

precluded by settled law. Others may have had arguable merit,

but are "sufficiently problematical that the refusal to raise

them cannot be assailed as an unreasonable professional

judgment." Cunningham v. Henderson (C.A.2, 1984), 725 F.2d 32,

36.

XV

Settled Issues

In his nineteenth proposition of law, Campbell complains

that the trial court overruled his motion for individual,

sequestered voir dire. However, the court had discretion to

voir dire prospective jurors as a group. State v. Mapes

(1985), 19 Ohio St.3d 108, 114-115, 19 OBR 318, 323-324, 484

N.E.2d 140, 146; State v. Brown, supra, paragraph two of the

syllabus. Campbell also argues that the court should have

explained why it denied the motion. But Campbell has the

burden to show abuse of discretion. Mapes, supra, at 115, 19

OBR at 324, 484 N.E.2d at 146. Trial courts need not disprove

abuse by explaining every discretionary decision.

Propositions of law twenty-three through twenty-eight

resurrect well-settled issues and are summarily overruled. See

State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568;

State v. Spisak (1988), 36 Ohio St.3d 80, 521 N.E.2d 800.

Moreover, Campbell concedes that propositions twenty-three and

twenty-five were not preserved at trial, and we also find that

the issue raised in proposition twenty-six was not raised at

trial. These propositions are waived.

XVI

Independent Sentence Review

Having affirmed Campbell's conviction, we review his death

sentence de novo for appropriateness and proportionality.

Campbell relies on two mitigating factors: his "history,

character, and background," R.C. 2929.04(B), and residual doubt

of guilt, see State v. Watson (1991), 61 Ohio St.3d 1, 572

N.E.2d 97. 6

When Campbell was five, his face was badly scarred in a

fire. He was in the hospital for a year. Psychologist David

Chiappone testified that this affected Campbell profoundly. At

age five, "you're trying to get from your parents a sense of

faith in the outside world." Campbell's long hospitalization

distorted "that normal developmental path," and he began to

feel that others saw him "for his scars, not for himself."

Later events reinforced Campbell's alienation. Having

been hospitalized so long, he was held back in school, and his

schoolmates made fun of his scars. To relieve feelings of

inadequacy and anger, Campbell drank and took drugs, which kept

him from "develop[ing] * * * other mechanisms to deal with

[his] feelings * * *."

However, Chiappone also testified that Campbell told him

"that he received numerous treatments up until age 14 * * * or

15 at which point they were going to have plastic surgery. But

he said * * * he felt he adjusted to it and he didn't accept

the plastic surgery."

Chiappone apparently did not believe Campbell, but our

duty is to independently weigh the evidence. While we respect

Chiappone's professional opinion, Campbell's own words are the

most persuasive evidence of his state of mind. That is

especially true given the context in which Campbell spoke:

Chiappone was examining him to see whether his psychological

state might yield mitigating factors to help him avoid the

death penalty. And, Campbell's actions corroborate his words;

he did, after all, refuse the plastic surgery.

Moreover, Campbell's sister Pamela was also scarred in the

fire and hospitalized for a year; she too was ridiculed as a

child. Yet she is a law-abiding citizen. Cf. Waddy, 63 Ohio

St.3d at 452, 588 N.E.2d at 839. On these facts, we cannot

give much weight to the possibility that Campbell's crimes are

"attributable to * * * emotional and mental problems," making

him "less culpable than defendants who have no such excuse."

California v. Brown (1987), 479 U.S. 538, 545, 107 S.Ct. 837,

841, 93 L.Ed.2d 934, 942 (O'Connor, J., concurring).

As to residual doubt, Campbell points out that the

fingerprints outside Turner's apartment could have been placed

there anytime; that the blood on Campbell's shoes was

unidentifiable; and that the door to the apartment building was

not forced, yet Campbell apparently had no key to that door.

However, Campbell's claims of innocence are unpersuasive.

He tried to fabricate an alibi, hardly the act of an innocent

man. His fingerprint was on the light bulb outside Turner's

apartment, and he admitted that he never changed the light

bulbs in public areas of the building when he lived there. He

told Estella Roe, Ronys Clardy, and Angelo Roseman that he had

killed Turner. And Donna Roberts saw him lurking in an alley

outside the apartment building on the night of the murder.

Campbell attacks Roberts' identification at great length.

He says the lighting was dim, but Roberts did not so testify;

although the streetlamp was across the street from her, she

said its light illuminated the alley. Besides, she was just

inches from Campbell, a man with a distinctively scarred face

whom she already knew.

Campbell points out that Roberts was coming home from a

bar when she saw him, but we reject his insinuation. Roberts

testified without contradiction that she was at the bar only

briefly and had nothing to drink that night.7 Campbell also

claims that Roberts admitted not paying attention to who was

around, but what she really said was that she had not been

paying attention until seeing Campbell in the alley:

"Q. [Defense counsel] And the reason you got startled is

because even up to that point you weren't paying attention to

who was around, correct?

"A. [Roberts] Right.

"Q. And at that point when you first saw somebody like

that, you got startled?

"A. Yeah, I jumped and grabbed my heart because it scared

me."

Finally, Campbell argues that police tainted Roberts'

identification by showing her Campbell's picture alone instead

of in a photo array. But Roberts already knew Campbell. Thus,

her identification of him is highly reliable. See State v.

Parker (1990), 53 Ohio St.3d 82, 87, 558 N.E.2d 1164, 1169. On

this record, residual doubt deserves no mitigating weight.

Against the mitigating factors, we must weigh the

aggravating circumstance of murder committed during aggravated

burglary. The mitigating factors are weak, and we find that

the aggravating circumstance outweighs them beyond a reasonable

doubt. The death sentence is therefore appropriate.

We also find the death sentence proportionate compared to

sentences approved or disapproved by this court in similar

capital cases. In similar cases of burglary-murder, we have

affirmed death sentences in the face of far stronger

mitigation. For instance, in State v. Holloway, supra, 38 Ohio

St.3d 239, 527 N.E.2d 831, the defendant was deformed and

retarded. In childhood he was not only taunted, but beaten by

other children -- and teased by his family and teachers as

well. Psychologists testified that he lacked substantial

capacity to appreciate the criminality of his conduct or

conform to the law. 38 Ohio St.3d at 245-246, 527 N.E.2d at

838. Campbell presented no such psychological testimony here.

Similarly, in State v. Murphy (1992), 65 Ohio St.3d 554,

605 N.E.2d 884, the defendant was only twenty-one and had been

"the victim of verbal, physical and sexual abuse as a child * *

*." Id. at 585, 605 N.E.2d at 908. His intelligence was in

the bottom six or seven percent of the population. Id. Yet,

Murphy received a death sentence for a similar crime, the

murder of an elderly victim during an invasion of her home. It

is true that Murphy was convicted of two capital

specifications, robbery-murder and burglary-murder; unlike

Campbell, he succeeded in robbing his victim. But we do not

think that difference so significant as to warrant a lighter

punishment for Campbell.

Finding the death penalty appropriate and proportionate,

we affirm the sentence of death. The judgment of the court of

appeals is therefore affirmed.

Judgment affirmed.

Moyer, C.J., Douglas and Resnick, JJ., concur.

F.E. Sweeney, J., concurs in judgment only.

A.W. Sweeney and Wright, JJ., concur in part and dissent

in part.

FOOTNOTES

1 A more precise term would be "procedurally defaulted."

See, e.g., Engle v. Isaac (1982), 456 U.S. 107, 129, 71 L.Ed.2d

783, 801, 102 S.Ct. 1558, 1572. However, we have usually

described failures to object and similar procedural defaults as

"waivers," even though they are not the kind of waivers

described in Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82

L.Ed. 1461, 1466, 58 S.Ct. 1019, 1023.

2 Campbell cites In re M.D. (1988), 38 Ohio St.3d 149, 527

N.E.2d 286, syllabus, for the proposition that we may review

waived issues even where the alleged error does not amount to

plain error. But in M.D., there was no waiver; the appellant

had raised her due process claim at trial via motion to

dismiss. 38 Ohio St.3d at 151, 527 N.E.2d at 287-288.

Although we sometimes discuss the merits of a waived

proposition of law as an alternative basis for rejecting it,

that is consistent with the plain error rule. See Harris v.

Reed (1989), 489 U.S. 255, 264, 109 S.Ct. 1038, 1044, 103

L.Ed.2d 308, 318, fn. 10. Our cases make clear that we will

not overturn a conviction for alleged error not raised below,

unless it amounts to plain error. See, e.g., State v. Coleman

(1988), 37 Ohio St.3d 286, 294, 525 N.E.2d 792, 800 (arguments

not preserved below "cannot be considered"); State v. Greer

(1988), 39 Ohio St.3d 236, 244, 530 N.E.2d 382, 394.

3 R.C. 2929.03(D)(1) provides that, in capital cases, "[a]

pre-sentence investigation * * * shall not be made except upon

request of the defendant."

We note that Campbell was convicted of non-capital

felonies as well as capital crimes. In sentencing Campbell on

the non-capital crimes, the judge was required to obtain a

PSI. Crim.R. 32.2(A). However, the judge did not limit his

use of the PSI to the non-capital felonies; he also considered

it in sentencing Campbell to death. Cf. State v. Cooey (1989),

46 Ohio St.3d 20, 33-34, 544 N.E.2d 895, 912-913 (victim impact

statement was not error where used only in sentencing on

non-capital crimes) with State v. Cook (1992), 65 Ohio St.3d

516, 528-529, 605 N.E.2d 70, 83-84 (improperly ordered PSI was

error where trial judge considered it in sentencing defendant

to death).

4 The PSI was missing from the record when it went to the

court of appeals, but has since been restored. See State v.

Campbell (1992), 63 Ohio St.3d 1447, 589 N.E.2d 390 (granting

motion to supplement record).

5 We therefore do not consider the testimonies of Roseman

or Clardy, though they support a finding of intent, since a

reasonable trier of fact could have disbelieved those witnesses.

6 At trial, Campbell also argued that his youth was

mitigating, but he was twenty-seven at the time of the

offense. Accordingly, the R.C. 2929.04(B)(4) mitigating factor

does not apply. See State v. Rojas (1992), 64 Ohio St.3d 131,

143, 592 N.E.2d 1376, 1387; State v. Carter (1992), 64 Ohio

St.3d 218, 228, 594 N.E.2d 595, 602.

7 Roberts met her sister and a friend at the bar, and they

decided to go to Roberts' sister's house. The three spent an

hour to ninety minutes there, talking; then Roberts' friend

drove her back to the bar. Roberts was there less than a

minute; she walked in, turned, and walked right back out.

A.William Sweeney, J., concurring in part and dissenting

in part. While I concur in the reasoning of Parts I through

XV of the majority opinion, I am constrained to dissent from

the majority's independent review of the death penalty

sentence. In my view, whether the aggravating circumstance

outweighs the mitigating factor of defendant's psychological

problems is such a close call that I cannot subscribe to the

majority's conclusion that the aggravating circumstance

outweighs the mitigating factors beyond a reasonable doubt.

Psychologist David Chiappone submitted compelling evidence that

the burns and scars endured by defendant as a child are largely

responsible for his antisocial behavior and drug/alcohol abuse

problems. Thus, I believe that defendant's antisocial behavior

is in part "attributable to *** emotional and mental problems,"

making him "less culpable than defendants who have no such

excuse." California v. Brown (1987), 479 U.S. 538, 545, 107

S.Ct. 837, 841, 93 L.Ed.2d 934, 942 (O'Connor, J., concurring).

Accordingly, I would hold that the aggravating

circumstance does not outweigh mitigation beyond a reasonable

doubt, and therefore reverse the death penalty and remand for

resentencing under State v. Penix (1987), 32 Ohio St.3d 369,

513 N.E.2d 744.

Wright, J., concurs in the foregoing opinion.