State v. Carter

[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 545.]

THE STATE OF OHIO, APPELLEE, v. CARTER, APPELLANT.

[Cite as State v. Carter, 1995-Ohio-104.]

Criminal law—Aggravated murder—Death penalty upheld, when—Trial court has

discretion to determine its response to jury's request for further instruction

or clarification of previously given instructions—True question does not

constitute "hearsay" as defined by Evid.R. 801—Statement of co-

conspirator admissible pursuant to Evid.R. 801(D)(2)(e), when—

Confession to police by one co-conspirator implicating a second co-

conspirator is not made "during the course and in furtherance of the

conspiracy" within the scope of Evid.R. 801(D)(2)(e).

1. Where, during the course of its deliberations, a jury requests further instruction,

or clarification of instructions previously given, a trial court has discretion

to determine its response to that request. (Cincinnati v. Epperson [1969], 20

Ohio St. 2d 59, 49 O.O.2d 342, 253 N.E.2d 785, paragraph three of the

syllabus, overruled.)

2. Because a true question or inquiry is by its nature incapable of being proved

either true or false and cannot be offered "to prove the truth of the matter

asserted," it does not constitute "hearsay" as defined by Evid.R. 801.

3. The statement of a co-conspirator is not admissible pursuant to Evid.R.

801(D)(2)(e) until the proponent of the statement has made a prima facie

showing of the existence of the conspiracy by independent proof.

4. A confession to police by one co-conspirator implicating a second co-conspirator

is not made "during the course and in furtherance of the conspiracy" within

the scope of Evid.R. 801(D)(2)(e), as such a statement is made at a point in

time when the confessor is no longer attempting to conceal the crime and

has abandoned the conspiracy.

SUPREME COURT OF OHIO

(No. 94-10—Submitted March 8, 1995—Decided July 26, 1995.)

APPEAL from the Court of Appeals for Hamilton County, No. C-920604.

__________________

{¶ 1} In the early morning hours of April 6, 1992, Frances Messinger was

murdered while working alone as a clerk at a United Dairy Farmers convenience

store ("UDF") in Cincinnati. A grand jury returned an indictment charging

appellant, Cedric Carter, in two counts, with aggravated murder in violation of R.C.

2903.01(B) and aggravated robbery in violation of R.C. 2911.01 based on the

events surrounding Messinger's death. The indictment included a felony-murder

death specification pursuant to R.C. 2929.04(A)(7), charging Carter with causing

death while committing or attempting to commit aggravated robbery, and being the

principal offender in an aggravated murder, or alternatively with committing a

murder with prior calculation and design. Both counts also contained gun

specifications. A jury found Carter guilty as charged and recommended that he be

sentenced to death. The death sentence was subsequently imposed by the trial court.

{¶ 2} At approximately 2:15 a.m. on April 6, 1992, Carol Blum, a waitress

working directly across the street from the UDF, dialed 911 and reported that she

had just seen two black males running from the UDF. At trial, Blum testified that

immediately prior to calling 911, she saw two men inside the UDF—one man in

front of the counter with both arms extended toward the register with hands together

pointing to something, and the second man behind the counter near the register. She

saw the man behind the counter bend down, and then observed both men run out.

The waitress did not see Messinger standing at any time while she was observing

the incident. When Messinger's body was discovered shortly thereafter, an

unmelted ice-cream cone was found on the floor of the UDF in the area in front of

the counter near the exit doors.

{¶ 3} On April 7 one Kenny Hill surrendered himself to authorities in

connection with the Messinger murder. Based on information provided by Hill,

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police obtained a search warrant for an apartment at which Carter was temporarily

residing. Carter was arrested in the early morning hours of April 8, 1992 during

the course of the search which followed. During the search the police recovered

the murder weapon, a .38 caliber Smith & Wesson five-shot revolver manufactured

between 1877 and 1891, the hammer of which must be pulled back manually prior

to the firing of each round.

{¶ 4} Following his arrest, Carter was taken to police headquarters to be

interviewed. At approximately 3:50 a.m. Carter signed a waiver of rights form,

which recited his rights as delineated in Miranda v. Arizona (1966), 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694. During the tape-recorded statement which

followed, Carter admitted being present at the UDF during the course of the

robbery, but initially identified Hill as the shooter. The police then discontinued

taping the interview, and told Carter his statement was inconsistent with statements

police had obtained from other witnesses. Upon resumption of the taping, Carter

admitted that he was the shooter at the UDF robbery.

{¶ 5} At trial the state and the defense agreed to many of the facts

surrounding the robbery. Both parties are in accord that three men were involved:

Carter, Hill (who also entered the UDF store), and Virgil Sims (who drove the car

used by Carter and Hill before and after the murder). It is undisputed that Carter

shot two times and that one bullet lodged in a carton of cigarettes in a cabinet behind

the cash register, while the second struck Messinger in her forehead, killing her.

{¶ 6} Carter testified at the trial and admitted involvement in the crime.

Carter testified that he entered the UDF first (without a gun) and that Hill followed

shortly thereafter, carrying with him the .38 caliber Smith & Wesson revolver.

Carter ordered an ice cream cone, and while Messinger was standing at the cash

register to accept payment for the cone, Hill passed the gun to Carter. Carter denied,

however, that he had intended to kill Messinger. He testified that he had been a

heavy user of crack cocaine; that he used significant amounts of alcohol, marijuana

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and crack cocaine during the period leading up to the murder; and that Hill was his

supplier. Although Carter admitted that he entered the store with the intent to rob

it, he testified that he and Hill had not talked about robbing the store until

immediately prior to the robbery. He further testified that he never intended to be

the one to hold the gun during the robbery. He admitted, however, that he knew

the gun had bullets, and that Hill had showed him earlier in the day how to shoot it.

He further admitted that before robbing the UDF the three had participated in "a

lot" of robberies of drug dealers that same evening, and that only Hill had used the

gun to threaten the victims in those robberies while Carter remained in the car.

Carter testified that he first fired the gun at the floor to scare Messinger as she

pushed the gun away and shut the register drawer. Carter testified he told Messinger

to open the cash register, but she refused. He stated that Hill then suggested leaving,

and that as they turned to leave, he fired a second shot when Messinger began

fumbling in an apparent attempt to push an alarm button. Carter maintained

consistently that he did not aim at Messinger, but instead aimed to fire a shot by her

to scare her, and never intended to shoot her.

{¶ 7} Medical testimony established that Messinger was killed as a result of

a bullet wound which entered her forehead slightly left of the midline. The bullet

traveled sharply left to right, and front to rear, with a slight upward angle. No

stippling or gunpowder burns were found on Messinger's skin, indicating that the

gun had been fired from a distance greater than one foot.

{¶ 8} The court of appeals affirmed Carter's convictions and death sentence,

and the cause is now before this court upon an appeal as of right.

__________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.

Schaefer, Assistant Prosecuting Attorney, for appellee.

David J. Boyd and Bruce K. Hust, for appellant.

__________________

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January Term, 1995

MOYER, C.J.

{¶ 9} Appellant has raised twenty-eight propositions of law. We have

reviewed each and, for the reasons stated below, find that none justifies reversal of

appellant's conviction of the crimes of aggravated murder and aggravated robbery.

In addition, we have fulfilled our responsibilities to independently review the

record, weigh the aggravating circumstance(s) against the mitigating factors, and

examine the proportionality of a sentence of death in this case. Upon full review

of the record we affirm appellant's convictions and death sentence.

I

Hearsay

{¶ 10} In his first proposition of law, appellant argues that the trial court

committed prejudicial error in allowing several witnesses to testify as to statements

allegedly made by appellant and his accomplice, Kenny Hill, over the defense's

objection on hearsay grounds.

{¶ 11} 1. James A. Landrum Jr. testified that he overheard Hill ask

Landrum's father prior to the UDF robbery where he (Hill) could obtain a gun and

ammunition.

{¶ 12} 2. Charles Horton, age fifteen, testified that prior to the UDF

robbery, he heard Carter and Hill generally discussing plans to "ro[b] a place."

{¶ 13} 3. Police Specialist David Feldhaus testified that, the day after the

UDF robbery, Hill told Feldhaus that he (Hill) had the gun with him when he, Sims

and Carter had discussed going out and trying to find a person to rob.

{¶ 14} The state's argument in response is twofold. The state argues (1) that

this testimony did not constitute hearsay, and (2) that the statements were

admissible pursuant to Evid.R. 801(D)(2)(e), which provides that statements "by a

co-conspirator of a party during the course and in furtherance of the conspiracy

upon independent proof of the conspiracy" do not fall within the definition of

"hearsay."

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SUPREME COURT OF OHIO

{¶ 15} We consider separately the admissibility of each of the statements at

issue.

A

Landrum's Testimony

{¶ 16} Evid.R. 801(C) defines "hearsay" as "a statement, other than one

made by the declarant while testifying at trial or hearing, offered in evidence to

prove the truth of the matter asserted." (Emphasis added.) A witness is barred on

hearsay grounds from testifying as to the statements made by another only when

the statement is offered to prove the truth of the matter asserted in the statement,

and only where the statement falls outside any exceptions to the rule against

hearsay1 as set forth in, e.g., Evid.R. 803 and 804. See State v. Davis, (1991), 62

Ohio St.3d 326, 344, 581 N.E.2d 1362, 1378 (admissibility of a written

investigative report of the Drug Enforcement Administration not inadmissible

hearsay because not offered to prove the truth of the matters contained therein, but

as relevant to the knowledge and state of mind of the person in possession of the

report).

{¶ 17} Landrum testified that he overheard Hill question Landrum's father

as to where a gun and ammunition could be obtained. Hill's questions do not fall

within the definition of "hearsay" because they did not constitute "assertions." An

"assertion" for hearsay purposes "simply means to say that something is so, e.g.,

that an event happened or that a condition existed." (Emphasis sic.) 2 McCormick

on Evidence (4 Ed. 1992) 98, Section 246. We hold that because a true question or

inquiry is by its nature incapable of being proved either true or false and cannot be

offered "to prove the truth of the matter asserted," it does not constitute hearsay as

1. Evid R. 802 contains the general prohibition against the admission of hearsay. It provides:

"Hearsay is not admissible except as otherwise provided by the Constitution of the United

States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in

conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the

Supreme Court of Ohio."

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January Term, 1995

defined by Evid.R. 801. Accord United States v. Vest (C.A. 1, 1988), 842 F.2d

1319; United States v. Lewis (C.A. 5, 1990), 902 F.2d 1176; Washington v. State

(1991), 589 A.2d 493, 87 Md. App. 132; Bustamante v. State (Ind. 1989), 537

N.E.2d 1188. Hill's questions fall into this nonassertive category, and Landrum

could properly testify as to the fact that Hill asked them. The trial court properly

allowed this testimony by James Landrum, Jr.

B

Horton's Testimony

{¶ 18} The state elicited testimony from Charles Horton that he overheard

Carter and Hill discussing a plan to commit a robbery prior to April 6. The state

contended at trial that this testimony was admissible pursuant to Evid.R.

801(D)(2)(e), which, in defining "hearsay," excludes statements "offered against a

party *** by a co-conspirator of a party during the course and in furtherance of the

conspiracy upon independent proof of the conspiracy." (Emphasis added.) Thus,

pursuant to the express terms of the rule, the statement of a co-conspirator is not

admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent of the statement

has made a prima facie showing of the existence of the conspiracy by independent

proof. Inclusion of the phrase "upon independent proof of the conspiracy" in

Evid.R. 801(D)(2)(e) distinguishes Ohio practice from practice under the Federal

Rules of Evidence, and precludes a finding that the statement itself may be used to

establish the existence of the conspiracy. See Giannelli, Ohio Rules of Evidence

Handbook (5 Ed. 1994) 211, 214. The record in the case at bar reflects that at the

time Horton testified, the state had barely established that any relationship

whatsoever existed between Carter and Hill, let alone that they were co-

conspirators in a scheme to commit robberies. Thus, at the time Horton's testimony

was elicited, the requisite foundational prima facie showing of the existence of a

conspiracy between Carter and Hill by independent proof had not been made by the

state as required by Evid.R. 801(D)(2)(e), even though "independent proof of the

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conspiracy" was subsequently provided by the state through introduction into

evidence of the defendant's tape-recorded statement to police. Cf. State v. Milo

(1982), 6 Ohio App.3d 19, 22?23, 6 OBR 44, 47, 451 N.E.2d 1253, 1257; State v.

Jurek (1989), 52 Ohio App.3d 30, 35-36, 556 N.E.2d 1191, 1197. Any error in

allowing Horton's testimony pursuant to the co-conspirator rule is, however,

harmless on this record. At trial the state introduced evidence of Carter's taped

confession and appellant fully admitted his involvement in the commission of the

UDF robbery and other robberies on the night of the murder. Cf: Milo, supra. Error

in admitting hearsay does not justify reversal where it is harmless. See State v. Sage

(1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343.

C

Police Specialist Feldhaus' Testimony

{¶ 19} Statements made by a co-conspirator after the conspiracy has been

abandoned do not fall within the scope of Evid.R. 801(D)(2(e), and may not be

deemed admissible pursuant to that rule. State v. Duerr (1982), 8 Ohio App.3d 396,

8 OBR 511, 457 N.E.2d 834, certiorari denied (1983), 464 U.S. 816, 104 S.Ct. 74,

78 L.Ed.2d 86. A confession to police by one co-conspirator implicating a second

co-conspirator is not made "during the course and in furtherance of the conspiracy"

within the scope of Evid.R. 801(D)(2)(e), as such a statement is made at a point in

time when the confessor is no longer attempting to conceal the crime and has

abandoned the conspiracy. In the instant case Hill turned himself in and confessed

his involvement in the crime the day after Messinger was murdered. Since at that

point Hill clearly had given up any attempt to "furthe[r] *** the conspiracy"

between himself, the appellant and Sims, his statements to Feldhaus did not fall

within the scope of Evid.R. 801(D)(2)(e) and that rule did not justify the admission

of Hill's hearsay statements. Again, however, any error committed thereby is

harmless, as Hill's account of the facts of the robbery as testified to by Feldhaus is

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January Term, 1995

in accord with those subsequently made by the appellant himself during his

confession and at trial. Sage, supra.

II

Miranda Issues

{¶ 20} Carter claims that the trial court erred in allowing his confession into

evidence in that the state provided insufficient evidence at a pretrial suppression

hearing that Carter knowingly, intelligently and voluntarily waived his Fifth

Amendment rights.

{¶ 21} At the suppression hearing held in this case the defendant testified

that he was half-asleep and under the influence of crack cocaine and alcohol when

he signed the Miranda waiver and gave his confession after being taken into

custody in the middle of the night. Carter also testified that the police induced him

to make a statement by threatening that if he didn't tell them the truth that they (the

police) would kill him. Appellant argues that this testimony should be accepted and

interpreted as a promise to Carter that if he cooperated, he would not be faced with

the death penalty. Appellant claims that his age (nineteen) and lack of formal,

consistent education beyond the eighth grade reinforce his claim that his waiver

was not knowing.

{¶ 22} The state relies on the testimony of the interviewing officers that full

warnings were given, and on the defendant's confirmation on the audio tape that he

understood his rights and had signed the waiver form while the tape recorder was

turned off. The officers testified that Carter was read his rights no less than three

times, including immediately upon his being taken into custody; that he appeared

coherent and not intoxicated; and that an officer read each line of the waiver form

aloud, and asked Carter after reading each line to confirm that he understood. The

officers denied making any threats.

{¶ 23} At a suppression hearing, the evaluation of evidence and credibility

of witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357,

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SUPREME COURT OF OHIO

366, 582 N.E.2d 972, 982. Carter's Miranda arguments are unconvincing. It is

clear that the court believed the officers' version of how Carter's statement was

obtained, and rejected the defendant's version. Our evaluation of the audiotape of

Carter's statement reinforces the conclusion that Carter was neither intoxicated nor

otherwise incompetent. A reversal of the trial court's finding of a knowing,

intelligent and voluntary waiver is not justified on this record.

{¶ 24} We similarly reject Carter's contention that "it should be required

that an individual be permitted to talk to an attorney even though he supposedly

states that he does not want one." To so hold would be "to imprison a man in his

privileges and call it the Constitution." Adams v. United States ex rel. McCann

(1942), 317 U.S. 269, 280, 87 L.Ed. 268, 275, 63 S. Ct. 236, 242. In a recent case,

the United States Supreme Court noted that "[n]othing in Edwards [v. Arizona

(1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378] requires the provision of

counsel to a suspect who consents to answer questions without the assistance of a

lawyer." Davis v. United States (1994), 512 U.S., 114 S.Ct. 2350, 2356, 129

L.Ed.2d 362, 372, citing Miranda's rejection of the proposition that "'each police

station must have a "station house lawyer" present at all times to advise prisoners.'"

See, also, Michigan v. Mosley (1975), 423 U.S. 96, 108-109, 96 S.Ct. 321, 328-329,

46 L.Ed.2d 313, 324-325 (White, J., concurring).

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III

Jury Question

{¶ 25} The trial court provided the jury with a written copy of its

instructions, which included a definition of "purpose" based on R.C. 2901.22(A).2

The jury sent the following note to the court while deliberating in the guilt phase:

"We would like a further explanation of a particular sentence in the fifth

paragraph under Count I [of the jury instructions]. The sentence: A person acts

purposely when the gist of the offense is a prohibition against the [sic] conduct of

a certain nature, regardless of what the offender attempts to accomplish thereby, if

it is his specific intention to engage in conduct of that nature."

{¶ 26} The judge responded by refusing to instruct further, and by telling

the jury that it had all the instructions it needed. Carter contends that the trial court

had an affirmative duty to issue a supplemental instruction upon receipt of this note

pursuant to Cincinnati v. Epperson (1969), 20 Ohio St. 2d 59, 49 O.O. 2d 342, 253

N.E.2d 785. Paragraph three of the syllabus in Epperson provides that "[t]he failure

by the trial court in a criminal case to answer a question of law relating to a defense

presented, which is submitted to the court by the jury after they had retired to

deliberate, is error prejudicial to defendant's substantial rights."

{¶ 27} Both the First and Sixth Ohio Appellate Districts have held that

Epperson no longer constitutes binding precedent in that former R.C. 2315.06

(upon which Epperson was based) was later repealed by the General Assembly

effective in 1971. 133 Ohio Laws, Book III, 3019-3020. State v. Gleason (1989),

65 Ohio App.3d 206, 583 N.E.2d 975; State v. Robinson (June 13, 1986), Lucas

App. No. L-85-278, unreported, 1986, WL, 6699. These courts substituted an

2. R.C. 2901.22(A) provides: "A person acts purposely when it is his specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature,

regardless of what the offender intends to accomplish thereby, it is his specific intention to engage

in conduct of that nature."

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abuse-of-discretion standard to be used when a jury asks a question of law of the

court during deliberations. We agree. We today expressly overrule the third

paragraph of the syllabus of Cincinnati v. Epperson, supra, and hold that where,

during the course of its deliberations, a jury requests further instruction, or

clarification of instructions previously given, a trial court has discretion to

determine its response to that request. A reversal of a conviction based upon a trial

court's response to such a request requires a showing that the trial court abused its

discretion. In the case at bar, defense counsel raised no objection to the trial court's

response to the jury question, and the court acted within the scope of its discretion

in view of the nature of the instructions previously given.

IV

Sufficiency of Evidence

{¶ 28} The crime of aggravated felony murder requires proof that the

accused "purposely cause[d] the death of another." R.C. 2903.01(B). In addition,

the defendant must be "specifically found to have intended to cause the death of

another." R.C. 2903.01(D).

{¶ 29} Carter essentially argues that the state's evidence was insufficient to

satisfy these two statutory elements of the crime of aggravated murder and that the

trial court erred in denying his Crim.R. 29 motion for acquittal. We disagree. In

analyzing issues of sufficiency of evidence, a reviewing court must view the

evidence "in the light most favorable to the prosecution," and ask whether "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; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d

492, paragraph two of the syllabus.

{¶ 30} In this case, the defendant testified that he shot "to scare" Messinger,

that he was unfamiliar with guns, and that he never intended to shoot Messinger.

The jury was under no obligation to accept this testimony as truthful. See, e.g., State

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January Term, 1995

v. Jackson (1991), 57 Ohio St.3d 29, 34, 565 N.E.2d 549, 555. The jury could quite

easily and reasonably have found purpose to kill beyond a reasonable doubt despite

this testimony. A person is presumed to intend the natural, reasonable and probable

consequences of his voluntary acts, State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564

N.E.2d 408, 419; State v. Thomas (1988), 40 Ohio St. 3d 213, 217, 533 N.E.2d 286,

290, and intent can be determined from the surrounding facts and circumstances,

see State v. Johnson (1978), 56 Ohio St. 2d 35, 38, 10 O.O. 3d 78, 80, 381 N.E.2d

637, 640; State v. Robinson (1954), 161 Ohio St. 213, 53 O.O. 96, 118 N.E.2d 517,

paragraph five of the syllabus. Based on the eyewitness testimony of Carol Blum,

the jury could have concluded that Messinger was shot before the robbers turned to

flee, at a point in time when the gun held by Carter was in close proximity to the

victim. The jury had before it additional evidence that Messinger was killed by a

bullet which entered the middle of her forehead. It was undisputed that the gun

used in the robbery required the shooter to separately cock the hammer each time

before refiring, justifying the conclusion that Carter intentionally prepared his gun

to fire a second shot after first firing into the cigarette cabinet behind the cash

register. Sufficient evidence existed to support the finding that Carter possessed

purpose to cause Messinger's death as contemplated by R.C. 2903.01(B) and (D).

The offense of aggravated robbery, when committed with a loaded gun, is "likely

to produce death." State v. Widner (1982), 69 Ohio St. 2d 267, 270, 23 O.O. 3d

265, 266, 431 N.E.2d 1025, 1028; State v. Clark (1978), 55 Ohio St. 2d 257, 9 O.O.

3d 257, 379 N.E.2d 597.

{¶ 31} Carter's contentions that his convictions were not based on sufficient

evidence and that a motion to acquit should have been granted at the close of the

state's case have no merit.

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V

Voir Dire

{¶ 32} Carter has raised several issues challenging the trial court's

procedures in conducting voir dire.

A

Jury Sequestration

{¶ 33} Carter asserts that the trial court erred in denying his motion to

examine prospective jurors separately and out of the hearing of other prospective

jurors. Carter's argument is foreclosed by our holding in State v. Mapes (1985), 19

Ohio St.3d 108, 19 OBR 318, 484 N.E.2d 140, that "[t]he determination of whether

a voir dire in a capital case should be conducted in sequestration is a matter of

discretion within the province of the trial judge." Id. at paragraph three of the

syllabus. See, also, State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523,

paragraph two of the syllabus. Carter has neither recited facts showing abuse of

discretion nor demonstrated prejudice resulting from the court's refusal to conduct

a sequestered voir dire.

{¶ 34} Carter argues that the trial court abused its discretion in that the

"sheer repetition" of the same questions being asked of others on the panel, in

combination with the effect of being influenced by the opinions expressed by prior

veniremen, is enough to prejudice the group. This argument assumes that group

voir dire is inherently prejudicial, and as such challenges the validity of the court's

prior holdings in Mapes and Brown. We decline to modify those holdings.

B

Defense-proffered Jury Questionnaire

{¶ 35} Carter asserts error in the trial court's refusal to submit his proposed

questionnaire to the venire prior to voir dire. The argument lacks merit. See State

v. Mills, supra, 62 Ohio St.3d at 365, 582 N.E.2d at 981; State v. Loza (1994), 71

Ohio St. 3d 61, 73, 641 N.E.2d 1082, 1098-1099. In this case defense counsel did

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January Term, 1995

not dispute that the court's standard questionnaire, which was given to the jurors,

was similar to the one defense counsel proffered. Further, the trial court specifically

informed counsel that he was free to ask additional questions during the voir dire

itself. The defendant was accorded his right to meaningfully examine prospective

jurors.

C

Refusal to Allow Twelve Peremptory Challenges

{¶ 36} Crim. R. 24(C) provides each party with six peremptory challenges.

Carter argues that allowance of more than six peremptory challenges is

constitutionally required in order to assure a qualified and unbiased jury. Although

we acknowledge the importance of the availability of peremptory challenges to both

prosecutors and defendants, neither the United States Constitution nor the Ohio

Constitution accords a party a right to any particular number of peremptory

challenges. United States v. Turner (C.A. 9, 1977), 558 F.2d 535, 538. See, also,

Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. In addition,

this court has previously rejected similar arguments that a capital defendant is

entitled to more than six peremptory challenges. See State v. Mills, supra, 62 Ohio

St.3d at 365, 582 N.E.2d at 981; State v. Greer (1988), 39 Ohio St.3d 236, 244?246,

530 N.E.2d 382, 394?396. We today adhere to that precedent.

VI

Venue

{¶ 37} Carter argues that the trial court erred in refusing to change the venue

of his trial, in that pretrial publicity in Hamilton County precluded a fair trial in that

county. In reviewing this contention we are guided by established principles that

"'[a]ny decision on changing venue rests largely in the discretion of the trial court.

Absent a clear showing of an abuse of discretion, the trial court's decision controls.'

[Citations omitted.] Moreover, the interests of judicial economy, convenience, and

reduction of public expenses necessitate that judges make a good faith effort to seat

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a jury before granting a change in venue. [Citations omitted.] 'It has long been the

rule in Ohio that "the examination of jurors on their voir dire affords the best test

as to whether prejudice exists in the community ***"' [Citations omitted.]." State

v. Fox (1994), 69 Ohio St.3d 183, 189, 631 N.E.2d 124, 129-130.

{¶ 38} Carter does not allege specific facts tending to show that the trial

court abused its discretion in failing to order a change of venue, but argues that the

trial court should have ordered a change of venue because there was a reasonable

likelihood of prejudicial, pretrial publicity. We disagree. "[W]here the record on

voir dire establishes that prospective veniremen have been exposed to pretrial

publicity but affirmed they would judge the defendant solely on the law and

evidence presented at trial, it is not error to empanel such veniremen." State v.

Maurer (1984), 15 Ohio St.3d 239, 252, 15 OBR 379, 390, 473 N.E.2d 768, 781.

See, also State v. Spirko (1991), 59 Ohio St.3d 1, 23, 570 N.E.2d 229, 253?254.

The record reflects that jurors seated in this case made such affirmations. Carter has

failed to demonstrate that the trial court abused its discretion in refusing to change

the venue of his trial.

VII

Alleged Evidentiary Error

{¶ 39} The trial court allowed Police Specialist Feldhaus to testify on cross-

examination that Carter's co-conspirators Sims and Hill were charged with

complicity to aggravated murder, a noncapital offense. When defense counsel

attempted to elicit testimony from Feldhaus as to why Sims and Hill were charged

with lesser crimes than Carter, the state objected, claiming that the question called

for a legal conclusion. Feldhaus could not have had personal or firsthand

knowledge to answer, even if the information sought were deemed relevant (which

we do not here decide) as "[a] witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that he has personal knowledge of the

matter." Evid.R. 602. The grand jury itself rather than the police was responsible

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for the indictments of Carter, Hill and Sims, and deliberations of a grand jury are

conducted secretly. Crim.R. 6(D) and (E). The trial court did not err in refusing to

allow this line of questioning.

VIII

Prosecutorial Misconduct

{¶ 40} The conduct of a prosecuting attorney during trial does not constitute

a ground of error unless the conduct deprives the defendant of a fair trial. State v.

Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400; State v. Keenan

(1993), 66 Ohio St. 3d 402, 613 N.E.2d 203. A prosecutor is not precluded from

referring to the nature and circumstances surrounding a capital offense to explain

why the specified aggravating circumstance or circumstances outweigh any

mitigating factors. State v. Combs (1991), 62 Ohio St.3d 278, 283, 581 N.E.2d

1071, 1077; State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph

one of the syllabus; State v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d 293,

305. In this case Carter correctly points out that the prosecutor in the heat of

argument misstated certain aspects of the law (e.g., "You already know what

aggravating circumstances are. *** They are everything that surrounds the facts of

this particular case." [Emphasis added].) No objection was made to these

comments. While defense counsel did object when the prosecutor stated, "There is

no dispute as to [Carter's] convictions. But criminal history deals with a lot of

suspicious conduct" (emphasis added), we note that the trial court adequately

instructed the jury as to both the definitions of "aggravating circumstances" and

mitigating factors as well as the process by which the jury was to weigh the

aggravating circumstance against the mitigating factors. We have reviewed the

record and find that, when read as a whole, it supports the conclusion that defendant

was fairly tried. The conduct of the prosecutor in this case, although worthy of

criticism, does not rise to the level of reversible error.

IX

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Ineffective Assistance of Counsel

{¶ 41} The standard by which we review claims of ineffective assistance of

counsel is well established. Pursuant to Strickland v. Washington (1984), 466 U.S.

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, in order to prevail on such a

claim, the appellant must demonstrate both (1) deficient performance, and (2)

resulting prejudice, i.e., errors on the part of counsel of a nature so serious that there

exists a reasonable probability that, in the absence of those errors, the result of the

trial would have been different. Accord State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373; State v. Combs, supra. Judicial scrutiny of counsel's performance

is to be highly deferential, and reviewing courts must refrain from second-guessing

the strategic decisions of trial counsel. To justify a finding of ineffective assistance

of counsel, the appellant must overcome a strong presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.

Strickland at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-695; State v. Wickline

(1990), 50 Ohio St.3d 114, 126, 552 N.E.2d 913, 925. Prejudice from defective

representation sufficient to justify reversal of a conviction exists only where the

result of a trial was unreliable or the proceeding fundamentally unfair because of

the performance of trial counsel. Lockhart v. Fretwell (1993), 506 U.S. , 113 S. Ct.

838, 842-843, 122 L.Ed.2d 180, 189-191.

{¶ 42} Carter claims that ineffective assistance of his trial counsel is

demonstrated by (1) counsel's failure to file a Crim.R. 13 motion to consolidate his

trial with that of Hill and Sims, and to subpoena Hill to testify; (2) counsel's failure

to obtain a firearms expert to provide testimony reinforcing Carter's contention that

he lacked intent to kill; (3) counsel's presentation of a clinical psychologist during

the mitigation hearing whose testimony was mixed in nature and included recitation

of facts prejudicial to Carter; and (4) counsel's failure to call Carter's mother to

testify during the mitigation hearing. None of these alleged deficiencies rises to the

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level of prejudicial deficient performance, nor otherwise meets the ineffective

assistance of counsel criteria set forth above.

X

Alleged Instructional Error

{¶ 43} Carter contends that the trial court erroneously instructed the jury on

statutory mitigating factors of R.C. 2929.04(B) not raised by the evidence, and

thereby transformed their absence into nonstatutory aggravating circumstances.

His argument is not supported by the record. The trial court properly instructed the

jury as to the mitigating factors argued by the defense, i.e., Carter acted under

duress, coercion or strong provocation (R.C. 2929.04[B][2]); Carter lacked the

substantial capacity to appreciate the criminality of his conduct (R.C.

2929.04[B][3]); Carter's youth (age nineteen at time of murder) (R.C.

2929.04[B][4]); Carter's lack of a significant history of prior criminal convictions

or delinquency adjudications (R.C. 2929.04[B][5]); and other mitigating evidence,

e.g., Carter's personality, childhood history, and cocaine dependence (R.C.

2929.04[B][7]). The trial court included no instructions as to the two remaining

statutory factors not raised by Carter, i.e., R.C. 2929.04(B)(1) (victim induced or

facilitated offense); or (B)(6) (defendant is an aider or abettor but not a principal

offender). The trial court did not otherwise infer that the absence of statutory

mitigating factors should be transformed into extra statutory aggravating

circumstances.

{¶ 44} Nor is error demonstrated by the fact that the trial court instructed

the jury that it was called upon to "recommend" a non-binding sentence of death if

it found the aggravating circumstance to outweigh the mitigating factors. The

argument that such an instruction impermissibly reduces the jury's sense of

responsibility in recommending death has been consistently rejected by this court.

See State v. Bradley, supra, 42 Ohio Sts.3d at 147, 538 N.E. 2d at 384, citing State

v. Buell (1986), 22 Ohio St. 3d 124, 22 OBR 203, 489 N.E.2d 795; State v. Rogers

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(1986), 28 Ohio St. 3d 427, 28 OBR 480, 504 N.E.2d 52; State v. Steffen (1987),

31 Ohio St.3d 111, 509 N.E.2d 383. See, also, State v. Jackson, supra, 57 Ohio

St.3d at 40, 565 N.E.2d at 561; State v. Grant (1993), 67 Ohio St. 3d 465, 472, 620

N.E.2d 50, 61. Similarly, no error was committed in providing the jury with a

verdict form which included the words "we *** recommend" a sentence of death.

We do, however, restate our preference that courts trying capital cases include in

jury instructions a statement similar to that commended in State v. Mills, supra, 62

Ohio St.3d at 375, 582 N.E.2d at 988, that, "'[s]imply put, you should recommend

the appropriate sentence as though your recommendation will, in fact, be carried

out.'"

{¶ 45} As a final example of instructional error, Carter claims that the trial

court should have instructed the jury as to the minimum length of time defendant

would be incarcerated before becoming eligible for parole were he given a life

sentence. Trial counsel did not proffer such an instruction, and error, if any, in its

omission has been waived. State v. Jackson, supra, 57 Ohio St.3d at 41, 565 N.E.

2d at 562 (failure to object to a jury instruction is waived "'unless, but for the error,

the outcome of the trial clearly would have been otherwise'"). See, also, Crim. R.

52(B). We do not believe that the jury clearly would have returned a different

verdict had this instruction been given, particularly in light of the fact that the jury

was otherwise instructed that a life sentence would involve parole eligibility after

twenty or thirty full years of imprisonment.

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January Term, 1995

XI

Miscellaneous Penalty Phase Issues

A

Separate Juries

{¶ 46} Contrary to Carter's assertions, separate juries need not be seated for

the penalty and guilt phases of a capital trial. Indeed, in Ohio the same jury which

found the capital defendant guilty of aggravated murder and the death specification

must also return the recommendation of life or death following the mitigation

hearing. See State v. Penix (1987), 32 Ohio St. 3d 369, 372, 513 N.E.2d 744, 747-

748 ("There is no statutory provision for a second jury to be impaneled and make a

recommendation on the death penalty at resentencing. *** [T]he sentencing

recommendation must be made by the same jury that convicted the offender at the

guilt phase of this bifurcated proceeding.").

B

Failure to Provide Transcript of Psychologist Testimony

{¶ 47} On the second day of its deliberations concerning the penalty

recommendation, the jury requested that it be provided with a transcript of the

testimony of the psychologist who testified in Carter's behalf at the mitigation

hearing. The trial court refused to provide such a transcript. We are called upon to

review this refusal pursuant to an abuse-of-discretion analysis. See State v. Berry

(1971), 25 Ohio St.2d 255, 54 O.O.2d 374, 267 N.E.2d 775, paragraph four of the

syllabus ("After jurors retire to deliberate, upon request from the jury, a court in the

exercise of sound discretion may cause to be read all or part of the testimony of any

witness ***."). See, also, State v. Davis, supra, 62 Ohio St.3d at 340, 581 N.E.2d

at 1375. Because defense counsel did not object to the trial court's refusal to

provide the transcript, reversal on the basis of this proposition would require a

finding of plain error.

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{¶ 48} We do not find on this record that the trial court abused its discretion

in refusing to provide a copy of the transcript, and certainly do not find plain error.

Carter argues that the court's refusal prejudiced him in that it was likely that the

jury remembered only the vivid and negative aspects of the psychologist's

testimony, e.g., that the defendant's history included sadistic behavior, and that the

jury asked for the transcript so that it might have an opportunity to review the more

technical, and favorable, portions of the psychologist's testimony. This contention

is purely speculative, and constitutes much too thin a reed to support reversal of

Carter's death sentence.

C

Alleged Unconstitutionality of Ohio's Death Penalty Statutes

{¶ 49} We reject Carter's argument that Ohio's death penalty statutory

framework is unconstitutional. "*** [W]e have consistently held that Ohio's death

penalty scheme is constitutional and we continue to adhere to that position." State

v. Woodard (1993) 68 Ohio St.3d 70, 79, 623 N.E.2d 75, 82. See, also, e.g., State

v. Beuke (1988), 38 Ohio St.3d 29, 38-39, 526 N.E.2d 274, 285; State v. Bedford

(1988), 39 Ohio St.3d 122, 132, 529 N.E.2d 913, 923; State v. Sowell (1988), 39

Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; State v. Bradley, supra, 42 Ohio St.3d

at 148, 538 N.E.2d at 385.

XII

Independent Review

{¶ 50} The evidence shows beyond a reasonable doubt that the defendant

was the principal offender in a felony-murder based on attempted aggravated

robbery. R.C. 2929.04(A)(7). Against this sole specification, the appellant asks us

to weigh Carter's age (nineteen), the coercive influence of Hill (who was not

charged with a death-penalty crime), Carter's relatively clean record (only two

misdemeanor convictions), the fact that Carter was of low intellect, and that he had

been raised in a less-than-ideal environment. The defense also urges this court to

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January Term, 1995

include in its weighing any residual doubt it may have that Carter possessed the

required element of specific intent to kill based on Carter's contention that he never

meant to shoot Messinger.

A

Youth of Offender

{¶ 51} Where a defendant kills at the age of eighteen or nineteen this court

has on several occasions held that the element of youth is entitled to little weight.

See State v. Slagle (1992), 65 Ohio St.3d 597, 613, 605 N.E.2d 916, 931; State v.

Hill (1992), 64 Ohio St. 3d 313, 335, 595 N.E.2d 884, 901; State v. Byrd (1987),

32 Ohio St.3d 79, 93, 512 N.E.2d 611, 625; State v. Powell (1990), 49 Ohio St. 3d

255, 264, 552 N.E.2d 191, 201; State v. Cooey (1989), 46 Ohio St. 3d 20, 544

N.E.2d 895.

B

Poor Childhood

{¶ 52} We find that mitigating value does exist based on negative aspects

of Carter's childhood, and accord it the little weight to which it is entitled.

C

Influence of Cocaine Intoxication/Loss of Impulse Control

{¶ 53} In State v. Benner (1988), 40 Ohio St.3d 301, 319, 533 N.E.2d 701,

719, a defense expert testified as to the defendant's potential for drug-induced

behavior, lack of anger control and mood instability. This court acknowledged that

the testimony was worthy of consideration, but "not entitled to much weight." See,

also, State v. Lewis (1993), 67 Ohio St.3d 200, 209, 616 N.E.2d 921, 928.

Similarly, we have considered the evidence of cocaine and other drug intoxication

presented by Carter and have accorded it the little value it merits.

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D

Residual Doubt

{¶ 54} The trial court, which observed the witnesses and their credibility,

was firmly convinced that Carter possessed the intent required of both the crime of

aggravated murder and the death specification. Although we have before us a cold

record, the jury's recommendation and trial court's sentence are supported by ample

evidence. We have fully considered the degree of residual doubt inherent in this

record, and have accorded it the small weight we believe it is due.

E

"Coercion" from Kenny Hill

{¶ 55} Where proven, the fact that a capital defendant was under "strong

*** domination" by another so as to cause him to act other than he ordinarily would

is mitigating in nature. See State v. Woods (1976), 48 Ohio St.2d 127, 137, 2

O.O.3d 289, 357 N.E.2d 1059, 1066. Low intelligence of the defendant and

susceptibility to the influences of others are relevant to a determination of the

existence of coercion. See State v. Powell, supra, 49 Ohio St.3d at 263, 552 N.E.2d

at 200; State v. Hooks (1988), 39 Ohio St.3d 67, 69-70, 529 N.E.2d 429, 432.

However, we find that Carter has not demonstrated that Hill exerted a level of

"coercive" influence sufficient to justify us in attributing great weight to this

mitigating evidence. Although Hill may well have been the primary instigator

behind the attempted robbery, we find nothing to support Carter's implied assertion

that "Hill made me do it." Rather we find that the evidence instead leads to the

conclusion that Carter willingly participated in the events of April 6.

F

Disparate Sentencing of More Culpable Co-Conspirator

{¶ 56} In this case we do not find mitigating value in the fact that the two

other participants in the robbery, Hill and Sims, were indicted on lesser charges

than was Carter, and were not put in jeopardy of a death sentence. These individuals

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January Term, 1995

did not shoot and kill Messinger. The fact that Carter pulled the trigger, thereby

performing the act which resulted in Messinger's death, is justification enough for

his being treated more harshly than his co-conspirators. Cf: State v. Jamison (1990),

49 Ohio St.3d 182, 191, 552 N.E.2d 180, 188 (disparity of sentence does not justify

reversal when the sentence is neither illegal nor an abuse of discretion).

{¶ 57} Having accorded each mitigating factor the degree of weight to

which we feel it is entitled, we independently determine that the aggravating

circumstance outweighs the combined weight of the mitigating factors beyond a

reasonable doubt.

XIII

Proportionality Review

{¶ 58} Carter argues that he may not constitutionally be sentenced to death,

in that the death penalty is historically imposed disproportionately in cases where,

as here, a white person was murdered. This argument is foreclosed by existing

precedent. See McCleskey v. Kemp (1987), 481 U.S. 279, 107 S.Ct. 1756, 95

L.Ed.2d 262; State v. Steffen, supra, at 124, 31 obr 284-285, 509 N.E.2d at 395;

State v. Zuern (1987), 32 Ohio St.3d 56, 64, 512 N.E.2d 585, 593; and State v. Byrd,

supra, 32 Ohio St.3d at 86, 512 N.E.2d at 619.

{¶ 59} In terms of the statutory analysis of appropriateness and

proportionality required by R.C. 2929.05(A), we find that this court has

consistently upheld the imposition of death stemming solely from murder in the

commission of aggravated robbery in cases whose facts are no more heinous or

egregious in nature than are the facts of the case at bar. See, e.g., State v. Jamison,

supra; State v. Scott (1986), 26 Ohio St.3d 92, 26 OBR 79, 497 N.E.2d 55; State v.

Stumpf, supra. See, also, State v. Campbell (1994), 69 Ohio St.3d 38, 630 N.E.2d

339 (aggravated burglary); State v. Lewis, supra. Imposition of a death sentence

upon Cedric Carter is consistent with the proportionality analysis we are statutorily

required to undergo.

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{¶ 60} Accordingly, appellant's convictions and sentences are affirmed.

Judgment affirmed.

DOUGLAS, WRIGHT, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.

Resnick, J., concurs in judgment only.

__________________

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