State v. Spivey

[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 405.]

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

[Cite as State v. Spivey, 1998-Ohio-437.]

Criminal law—Aggravated murder—Defendant competent to stand trial and enter

pleas, when—Presentence motion to withdraw no contest pleas properly

denied—XYY syndrome raised in mitigation phase—Mitigation not

established under R.C. 2929.04(B)(3), when—Death penalty upheld, when.

(No. 97-414—Submitted December 9, 1997—Decided April 22, 1998.)

APPEAL from the Court of Appeals for Mahoning County, No. 89 C.A. 172.

__________________

{¶ 1} On January 3, 1989, Warren Spivey, appellant, broke into Veda Eileen

Vesper’s residence at 451 West Ravenwood Avenue in Youngstown, Ohio,

attacked Vesper with a knife or knives, inflicting multiple stab and/or cut wounds,

and brutally beat her to death. Appellant robbed Vesper of jewelry and other

personal property and fled the scene in Vesper’s automobile. Later that night,

appellant was arrested by police in connection with the murder.

{¶ 2} On January 18, 1989, appellant was indicted by the Mahoning County

Grand Jury for the aggravated murder of Vesper. Count One of the indictment

charged appellant with the purposeful killing of Vesper during the commission of

an aggravated robbery and/or aggravated burglary. In addition, Count One carried

an R.C. 2929.04(A)(7) death penalty specification alleging that the murder was

committed during the course of an aggravated robbery and/or aggravated burglary.

Appellant was also indicted on one count of aggravated robbery, one count of

aggravated burglary, and one count of grand theft of a motor vehicle. The case was

assigned for trial to the courtroom of Judge Peter C. Economus.

{¶ 3} At his arraignment, appellant pled not guilty to the charges and

specification set forth in the indictment. Thereafter, Judge Economus scheduled

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trial for March 27, 1989. However, appellant was granted a continuance, and trial

was rescheduled for September 6.

{¶ 4} On August 15, 1989, appellant requested an order allowing a defense

expert to conduct DNA testing of certain items of bloodstained clothing (i.e., a red

sweatshirt and a black-and-white vest) that had been seized by police during a

January 4, 1989 search of appellant’s home. A hearing on the motion was

conducted on August 21. Additionally, on August 21, the trial court granted the

motion for scientific testing, ordered a continuance of the September 6 trial date,

and rescheduled trial for September 25. The trial court also ordered, in two separate

judgment entries (filed August 21 and August 29), that “[n]o further continuances

shall be granted.”

{¶ 5} On August 31, appellant moved to continue the September 25 trial

date on the basis that the DNA testing had not been completed. On September 1,

the trial court ordered the drawing of the special venire for the September 25 trial

date. Defense counsel objected to the drawing of the venire, since the defense had

not yet received the DNA test results. The trial court noted the objection and

proceeded with the drawing of the special venire.

{¶ 6} On September 19 or 20, appellant entered a plea of not guilty and not

guilty by reason of insanity, moved for an order for psychological or psychiatric

evaluation in connection with the insanity plea, and requested the appointment of

Dr. A. James Giannini to evaluate appellant’s mental condition at the time of the

offenses. See former R.C. 2945.39. On September 20, the trial court ordered the

Forensic Psychiatric Center of District Eleven, Inc. (not Giannini) to conduct the

examination of appellant. On September 21, appellant moved for the appointment

of an independent forensic examiner (i.e., Giannini or some other psychiatrist

chosen by the defense) to evaluate appellant’s mental condition at the time of the

offenses. See former R.C. 2945.39(C). Also, on September 21, appellant filed yet

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another motion for a continuance of the September 25 trial date. On September 22,

appellant filed a “supplemental” motion for continuance.

{¶ 7} Prior to September 25, the Forensic Center issued a report by Dr.

Stanley J. Palumbo, a psychologist, indicating that appellant was sane at the time

of the offenses. On September 25, the trial court denied appellant’s requests for a

continuance and began the questioning of prospective jurors who had expressed a

desire to be excused from service. On September 26, the trial court, pursuant to

former R.C. 2945.39, appointed Giannini to conduct a psychiatric evaluation of

appellant for purposes of the insanity plea. Giannini’s psychiatric evaluation of

appellant was completed on September 29, and Giannini apparently found appellant

to be sane at the time of the murder and found him competent to stand trial.

{¶ 8} On October 2, 1989, appellant waived his right to trial by jury and

elected to be tried by a three-judge panel. Appellant’s signed jury waiver form was

filed in the cause and made part of the record thereof in accordance with the

requirements of R.C. 2945.05. Thereafter, on October 3, the members of the three-

judge panel (Judges Economus, Jenkins, and McNally) were duly designated, and

trial was set to commence October 10. On October 6, appellant moved for a

continuance of the October 10 trial date pending the completion of the DNA testing.

{¶ 9} On October 10, the parties appeared in chambers before Judges

Economus and McNally. The chambers discussion involved, among other things,

a plea agreement that had been reached between the state and the defense. The

discussions indicated that appellant had agreed to plead no contest to the charges

and specification set forth in the indictment. In exchange, the state agreed that,

during the penalty phase, the prosecution would be limited to cross-examination of

defense witnesses and would not introduce independent evidence during mitigation

except to rebut false or perjured testimony. Additionally, the state agreed to refrain

from making any recommendation concerning the death penalty. Following these

discussions, appellant appeared before the three-judge panel, withdrew his pleas of

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not guilty and not guilty by reason of insanity, and entered a written plea of no

contest to each count. Following an extensive Crim.R. 11 colloquy between the

panel and appellant, the panel accepted appellant’s pleas of no contest.

{¶ 10} On October 10, the panel conducted an evidentiary hearing to

determine the underlying factual and evidentiary basis for the charges and

specification alleged in the indictment. Evidence was presented to the panel

through exhibits, stipulations, and the live testimony of several witnesses. At the

conclusion of the hearing, the panel found appellant guilty of the charges and

specification set forth in the indictment. On October 11, the panel filed a judgment

entry reflecting its findings of guilt.

{¶ 11} The penalty phase was scheduled to commence October 30. On

October 20 and 24, appellant moved for a continuance of the penalty phase,

claiming that a critical defense witness would be unavailable from October 28

through November 5. Appellant also, on October 24, moved to withdraw his pleas

of no contest on the basis of what appellant referred to as “newly discovered

evidence.” Attached to the motion was a report from Cellmark Diagnostics

Laboratory. The report indicated that the blood on the two articles of clothing that

had been seized by police during the search of appellant’s home (i.e., the red

sweatshirt and the black-and-white vest) was not the blood of the victim. In

contrast, the state’s evidence at the October 10 hearing on appellant’s pleas of no

contest had included testimony that the blood on the clothing was consistent with

the blood of the victim. However, the state’s evidence in that regard had involved

non-DNA testing procedures. Therefore, in light of the report from Cellmark,

appellant sought to withdraw his pleas of no contest and requested that the panel

vacate its findings of guilt and allow the case to proceed to trial by jury. On October

27, the panel denied appellant’s motion to withdraw the pleas and reset the

mitigation hearing for November 13.

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{¶ 12} The mitigation hearing commenced November 13 and concluded on

November 17. On November 20, 1989, the panel sentenced appellant to death for

the aggravated murder of Vesper. For the offenses of aggravated robbery,

aggravated burglary, and grand theft of a motor vehicle, appellant was sentenced in

accordance with law. On appeal, the court of appeals, in January 1997, affirmed

the judgment of the trial court and upheld appellant’s death sentence.

{¶ 13} The cause is now before us on an appeal as of right.

__________________

Paul J. Gains, Mahoning County Prosecuting Attorney, and Janice T.

O’Halloran, Assistant Prosecuting Attorney, for appellee.

John B. Juhasz and Patricia A. Millhoff, for appellant.

__________________

DOUGLAS, J.

{¶ 14} Appellant presents a number of issues for our consideration. (See

Appendix, infra.) We have considered appellant’s propositions of law and have

reviewed the death sentence for appropriateness and proportionality. Upon review,

and for the reasons that follow, we affirm the judgment of the court of appeals and

uphold the sentence of death.

I

{¶ 15} We have held, in cases too numerous to cite, that this court is not

required to address and discuss, in opinion form, each and every proposition of law

raised by the parties in a death penalty appeal. We continue to adhere to that

position today. Here, appellant raises a number of issues that have previously been

addressed and rejected by this court under analogous circumstances in some of our

prior cases. In addition, most of the arguments raised by appellant have been

waived. Further, many of appellant’s arguments merit no discussion given the

events at trial and the governing law. Upon a review of the record and the

arguments advanced by appellant, we fail to detect any errors requiring reversal of

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appellant’s convictions and death sentence. We address and discuss, in detail, only

those issues that merit further discussion.

II

{¶ 16} On October 2, 1989, appellant waived his right to trial by jury and

elected to be tried by a three-judge panel. Appellant executed a written jury waiver

and the trial judge (Judge Economus) questioned appellant in open court, with

counsel present, concerning the waiver. The waiver was also signed by appellant’s

attorneys as witnesses. The signed jury waiver form was filed in the cause and

made part of the record. The procedure fully complied with the requirements of

R.C. 2945.05. See State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766,

paragraph one of the syllabus.

{¶ 17} In his first proposition of law, appellant contends that the trial court

erred by accepting his waiver of the right to trial by jury. Specifically, appellant

contends that the trial court had information that appellant suffered from “numerous

intellectual deficiencies” and that the court had an “absolute duty” to conduct a

more thorough inquiry into whether appellant knowingly, intelligently, and

voluntarily waived his right to trial by jury. We reject appellant’s argument in this

regard.

{¶ 18} First, we note that the trial court strictly adhered to the requirements

of R.C. 2945.05 and, thus, fully satisfied its duties with respect to appellant’s jury

waiver. Second, not only did the trial court fully comply with R.C. 2945.05 in

accepting the jury waiver, but the court also questioned appellant concerning the

written waiver even though no such questioning was required. See State v. Jells

(1990), 53 Ohio St.3d 22, 25-26, 559 N.E.2d 464, 468 (“There is no requirement in

Ohio for the trial court to interrogate a defendant in order to determine whether he

or she is fully apprised of the right to a jury trial. The Criminal Rules and the

Revised Code are satisfied by a written waiver, signed by the defendant, filed with

the court, and made in open court, after arraignment and opportunity to consult with

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counsel.”). See, also, State v. Eley (1996), 77 Ohio St.3d 174, 182, 672 N.E.2d 640,

649. At the time of the waiver, the trial court asked appellant in open court whether

appellant understood that by waiving the right to trial by jury he would be tried by

a three-judge panel. The trial court questioned appellant as to whether appellant

understood that his guilt would have to be proven beyond a reasonable doubt. The

trial court asked appellant whether appellant understood that the death sentence

would be imposed if a three-judge panel unanimously found appellant guilty of

aggravated murder and the attendant death-penalty specification and if the panel

also unanimously found that the aggravating circumstance outweighed the

mitigating factors beyond a reasonable doubt. Appellant responded affirmatively

to each question asked of him, indicating that he fully understood the consequences

of the waiver. Additionally, the jury waiver form itself apprised appellant of the

nature and consequences of his decision to waive a jury trial.

{¶ 19} Therefore, the record is clear that the trial judge at the time appellant

waived the right to trial by jury strictly adhered to the requirements of R.C. 2945.05

and, in fact, went beyond the scope of the statute to ensure that appellant understood

the nature and consequences of the waiver. The trial judge also specifically found,

and we agree, that appellant’s waiver of the right to trial by jury was “voluntarily

made with full knowledge of the consequences thereof.” Contrary to appellant’s

assertions, nothing more was required to have effectuated a valid waiver of the right

to trial by jury.

{¶ 20} Accordingly, appellant’s first proposition of law is not well taken.

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III

{¶ 21} In his third proposition law, appellant contends that the three-judge

panel erred by accepting the pleas of no contest without first inquiring into his

competency. In this proposition, appellant does not assert that he was legally

incompetent during the trial court proceedings but, instead, complains that the panel

did nothing to determine whether he was competent to enter the pleas.

Additionally, appellant contends that the panel’s Crim.R. 11(C) inquiry into

whether he understood the nature and consequences of the no contest pleas should

have been more thorough. None of these issues was raised at trial or on appeal to

the court of appeals. Thus, appellant has waived all but plain error with respect to

these matters.

{¶ 22} Former R.C. 2945.37(A) provided that “[a] defendant is presumed

competent to stand trial, unless it is proved by a preponderance of the evidence in

a hearing under this section that because of his present mental condition he is

incapable of understanding the nature and objective of the proceedings against him

or of presently assisting in his defense.” See, also, Dusky v. United States (1960),

362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (A defendant is competent

to stand trial if the defendant “ ‘has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding’ ” and if the defendant “

‘has a rational as well as factual understanding of the proceedings against him.’ ”).

Additionally, “[t]he right to a hearing on the issue of competency rises to the level

of a constitutional guarantee where the record contains ‘sufficient indicia of

incompetence,’ such that an inquiry into the defendant’s competency is necessary

to ensure the defendant’s right to a fair trial.” State v. Berry (1995), 72 Ohio St.3d

354, 359, 650 N.E.2d 433, 439.

{¶ 23} Here, appellant never specifically requested a hearing on the issue of

competency. Nevertheless, appellant apparently argues that the trial court should

have sua sponte conducted a hearing on the issue prior to accepting the pleas of no

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contest. However, appellant does not point to anything in the record indicating that

he was incompetent at the time he entered the pleas of no contest, and our review

of the record has revealed no indicia of incompetency that would have required a

hearing on that matter.

{¶ 24} Appellant also argues that the panel “put on the blinders to any issue

of competence” and told defense counsel that “it [the panel] had better not see a

motion for competence.” However, appellant’s assertions are not supported by the

record. Appellant has provided us with no citation to the record where defense

counsel was allegedly told not to request a hearing regarding competency.

Additionally, we have independently reviewed the entire record and find that no

such comment was made. Moreover, even if the comment had been made, it was

still the responsibility of counsel to raise the issue of competency if counsel truly

believed that competency was an issue. The record does reflect that when an issue

concerning appellant’s sanity arose while the case was pending before Judge

Economus, defense counsel made appropriate motions for sanity evaluations and

the appropriate examinations were conducted. A report of one of the examinations

specifically included a finding that appellant was competent to stand trial. Further,

appellant had previously been examined by a psychologist in 1988 in connection

with an unrelated criminal case, and the report of that examination indicated that

appellant was not only competent to stand trial, but that he understood the notion

of plea bargaining. We have no doubt whatsoever that if appellant’s trial attorneys

in the case at bar had any reason to believe that appellant was legally incompetent,

they would have filed an appropriate motion to request a hearing on the issue of

appellant’s competency.

{¶ 25} Appellant also argues that the panel was required to do more than it

did during its Crim.R. 11(C) colloquy with appellant to ensure that he understood

the nature and consequences of his pleas. We disagree. The record is clear that

appellant manifestly understood the consequences of entering his pleas of no

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contest. Indeed, when appellant submitted his written plea to each count to the

panel, defense counsel informed the panel that he (counsel) had “gone over it [the

written plea] in its entirety and read it to my client.” Counsel also stated that

appellant “questioned me about various parts about it and I answered his questions.”

The panel then proceeded to address appellant personally as required by Crim.R.

11, and the panel adhered meticulously to all relevant requirements of that rule. See

Crim.R. 11(C)(2) and (3). In this regard, we are absolutely convinced that the panel

did not err by accepting appellant’s pleas of no contest. The Crim.R. 11 dialogue

between the panel and this appellant was more than adequate to ensure that he knew

the consequences of his pleas (including the consequences relating to a waiver of a

jury trial) and that the pleas were knowingly, intelligently, and voluntarily made.

{¶ 26} Accordingly, for the foregoing reasons, appellant’s third proposition

of law is not persuasive.

IV

{¶ 27} The subject of appellant’s fourth proposition of law concerns the

panel’s decision denying appellant’s motion to withdraw the pleas of no contest.

The facts giving rise to this proposition of law may be summarized as follows.

{¶ 28} During the January 1989 search of appellant’s home, police seized,

among other things, two bloodstained articles of clothing, i.e., a red sweatshirt and

a black-and-white vest. The bloodstained clothing was sent to the Ohio Bureau of

Criminal Identification and Investigation (“BCI”) for testing. In January 1989, BCI

performed scientific testing procedures (but not DNA testing) with respect to the

bloodstains. The testing by BCI indicated that the blood on the clothing was

consistent with the blood of the victim but was not consistent with appellant’s

blood.

{¶ 29} On May 17, 1989, during a pretrial status conference, Assistant

Prosecutor Kenneth Bailey asked defense counsel, “Is there a request for DNA

Testing at this time?” The question apparently arose in connection with the articles

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of clothing found in appellant’s residence. In response, defense counsel stated,

“No, we are not asking for anything, but that this hearing be reconvened once we

get a chance to discuss the matters which [Mr. Bailey] is aware of by us putting this

on the record.”

{¶ 30} Over two months later, during a July 19 motions hearing, defense

counsel stated that he had discussed DNA testing with Bailey (who at that point

was no longer involved in the case) and that Bailey had apparently indicated that

the state intended to conduct DNA testing. During the hearing, defense counsel

asked Assistant Prosecutor Gessner whether the state had conducted or was

planning to conduct DNA testing with respect to the bloodstained articles of

clothing. In response, Gessner stated that no DNA testing had been conducted by

the state and that the state had no intention to conduct any DNA testing. At that

point, Judge Economus stated, “I think we ought to settle this once and for all. A

written response would be the appropriate way to handle it.”

{¶ 31} On August 15, 1989, three weeks before the case was scheduled to

proceed to a jury trial on September 6, appellant filed a motion to allow a defense

expert to conduct DNA testing of the bloodstains found on the sweatshirt and the

vest that had been seized from appellant’s residence. On August 21, Judge

Economus conducted a hearing on the motion. During the hearing, defense counsel

argued that the DNA testing was “critical” to the defense. Defense counsel also

requested a continuance of the September 6 trial date and explained to the court,

during an ex parte hearing, why the defense had delayed filing its motion for

scientific testing. The record reveals that the defense had delayed filing the motion

until the state, on August 2, 1989, specifically committed in writing that no DNA

testing had been conducted in the case. Additionally, defense counsel informed the

court that counsel had only recently become aware that DNA testing was imperative

to appellant’s defense.

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{¶ 32} The trial judge granted the motion for DNA testing and stated, during

the August 21 hearing, that “[o]bviously, we can’t proceed with the trial until the

results are completed * * * and returned to defense counsel, and the prosecution is

entitled to an opportunity to review the tests.” On August 21, the trial judge ordered

a continuance of the September 6 trial date and rescheduled trial for September 25.

The trial judge also ordered that no further continuances would be granted.

Following the August 21 hearing, the bloodstained articles of clothing, along with

blood samples from the victim, were sent to Cellmark Diagnostics Laboratory, an

expert chosen by the defense, for DNA analysis.

{¶ 33} On August 31, 1989, appellant moved for a continuance of the

September 25 trial date pending the results of the DNA testing. In support of the

motion, appellant argued that the DNA test results were “critical from the point of

voir dire on to the conclusion of said trial.” On September 1, appellant objected to

the drawing of the special venire, since the defense had received no further

information concerning the DNA testing. The trial court noted the objection but

proceeded with the drawing of the venire. On September 21, appellant filed another

motion for a continuance of the September 25 trial date. On September 22,

appellant filed a supplemental motion for continuance of the jury selection process

that was scheduled to commence September 25, claiming that “[i]t is impossible

for the Defendant to voir dire a jury without knowledge as to the results [of the

DNA testing procedures].”

{¶ 34} On September 25, defense counsel argued during a pretrial hearing

that the defense should not be required to proceed to voir dire without knowing the

results of the DNA testing. At that time, defense counsel also indicated that the

defense would consider waiving the right to trial by jury if the DNA test results

showed that the blood on the articles of clothing found in appellant’s residence was

consistent with the blood of the victim. The trial court denied appellant’s request

for a continuance of the jury selection process, finding that the DNA test results

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were not critical for purposes of voir dire. The trial judge then proceeded to address

the venire and began questioning prospective jurors who had expressed a desire to

be excused from service. During a break, defense counsel informed the court that

there was a problem with the DNA testing because Cellmark had not been provided

with the correct vial of the victim’s blood. When court adjourned for the day, the

parties’ attorneys apparently conducted a conference call with Cellmark to

determine precisely what it needed to complete the DNA testing.

{¶ 35} On October 2, 1989, court convened in chambers and a discussion

was had relative to the terms of the plea agreement entered into between the state

and the defense. Defense counsel informed the court that appellant would waive

his right to trial by jury and, once a three-judge panel was designated, that appellant

would enter either a guilty or no contest plea. Defense counsel also informed the

court that, in exchange for the pleas, the state had agreed not to make any

recommendation concerning the death penalty and had also agreed to refrain from

offering any rebuttal witnesses during the penalty phase unless rebuttal was

necessary to counteract false or perjured testimony by defense witnesses.

Following the discussion, appellant appeared in open court and waived his right to

trial by jury. The members of the panel were thereafter designated and trial was set

to commence October 10.

{¶ 36} On October 6, appellant moved for a continuance of the October 10

trial date, since DNA testing was being conducted by Cellmark but the results were

not yet available. On October 10, the parties appeared in chambers before two

members of the panel (Judges Economus and McNally) and the terms of the plea

agreement were once again stated on the record. During the hearing, Judge

Economus questioned defense counsel regarding the October 6 motion for a

continuance. Specifically, Judge Economus indicated that he was perplexed by the

motion, since a decision had been made by appellant to waive a jury trial and to

enter pleas of no contest. Judge Economus stated that he had assumed that the issue

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concerning DNA testing had been “abandoned.” Judge Economus also stated, “I

would—and I want the record to be clear on this—this Court would use every effort,

and I [previously] indicated this in concert with the prosecution and the defense

counsel, to have that evidence [the DNA test results] available before the actual

trial of this case.” Defense counsel replied that the defense had not abandoned the

DNA testing and that counsel was simply attempting to reiterate, at every possible

point, the need for the DNA test results. Judge Economus then stated, “I don’t want

it to appear that the only reason you are pleading this afternoon is because the Court

denied your request for a continuance because you haven’t received the pertinent

evidence for the defense of your case.” In response, one of appellant’s defense

attorneys, stated:

“Your Honor, last Monday [October 2, 1989], we were to begin once

again—and that’s when we were going to go forward [with voir dire], and that’s

when we waived the jury trial. We didn’t do that to buy time, we did that because

we thought that was the right thing to do. So, the Court’s statement o[f] concern,

that that’s the only reason that we are pleading, because we don’t have this [the

DNA test results], that is not the only reason. It is a consideration, however. * * *

“Your Honor, Mr. Zena [co-counsel] just mentioned to me, and we had

discussed this earlier, that the main reason we are going [sic, doing] this is because

of the Rule 11 negotiations. And, of course, we’re considering this other situation

in making the decision that we made.”

{¶ 37} During further discussions concerning DNA testing, Judge

Economus emphasized that although he had refused to delay the voir dire

proceedings on September 25, he would not have forced the defense to begin the

presentation of evidence without the DNA test results.

{¶ 38} Following the October 10 discussions in chambers, appellant

appeared in open court and voluntarily entered his pleas of no contest. Thereafter,

the panel conducted an evidentiary hearing to determine the factual and evidentiary

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basis of the charges and specification alleged in the indictment. During the

evidentiary hearing, the state presented, among other things, the testimony of BCI

trace evidence expert Kenneth Ross. Ross testified that the bloodstains found on

the sweatshirt and the vest were consistent with the victim’s blood. Following the

presentation of additional evidence, the panel found appellant guilty as charged in

the indictment.

{¶ 39} On October 24, after the panel had entered its findings but prior to

the commencement of the penalty phase, appellant filed a motion to withdraw his

pleas of no contest and requested that the panel “reinstate a jury trial.” The basis

for the motion was what appellant described as “newly discovered evidence,” i.e.,

the DNA analysis from Cellmark, which indicated that the bloodstains on the

sweatshirt and the vest could not have originated from the victim. Apparently, the

DNA analysis had been received by the defense on October 21, 1989. On October

26, the panel conducted a hearing on appellant’s motion. On October 27, the

motion was denied.

{¶ 40} In his fourth proposition of law, appellant argues that the panel

abused its discretion by denying his presentence motion to withdraw the pleas and

to proceed to a jury trial. We disagree.

{¶ 41} Crim.R. 32.1 provides:

“A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed or imposition of sentence is suspended; but to correct

manifest injustice the court after sentence may set aside the judgment of conviction

and permit the defendant to withdraw his plea.”

{¶ 42} In State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715,

paragraphs one and two of the syllabus, this court held:

“1. A defendant does not have an absolute right to withdraw a guilty plea

prior to sentencing. A trial court must conduct a hearing to determine whether there

is a reasonable and legitimate basis for the withdrawal of the plea.

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“2. The decision to grant or deny a presentence motion to withdraw a guilty

plea is within the sound discretion of the trial court.”

{¶ 43} Although Xie clearly dealt with presentence motions to withdraw

guilty pleas, the holdings in Xie may also be applied in situations involving pleas

of no contest. Thus, the panel’s decision denying appellant’s presentence motion

to withdraw the pleas of no contest will not be disturbed absent an abuse of

discretion. We find no abuse of discretion here. In its October 27, 1989 judgment

entry denying appellant’s motion to withdraw the pleas and to reinstate a jury trial,

the panel stated:

“Defense counsel argue that these results [the DNA test results] are newly

discovered evidence which could not have been discovered prior to trial and that

said evidence is sufficient to rebut a critical piece of identifying evidence used by

the prosecution. Further, Defense counsel argue that the previously submitted BCI

Lab Test result was the sole direct identifying evidence in the case upon which the

Defendant’s conviction is based, and now, under DNA Testing, is negated and

instead tends to exculpate the Defendant.

“Regarding the first assertion, the record does not support this contention.

The existence or commencement of the testing was admittedly known and initiated

by the Defense at the time the trial was called [for trial on September 25, 1989]. In

fact the record clearly reflects the Court’s intention not to proceed with testimony

[at the scheduled jury trial] until the test results were completed. Counsel were

aware of the Court’s position, and with the option of proceeding with trial available

to them, the Defense opted to withdraw their demand for a Jury Trial and proceed

with a trial before [a three-judge panel]. Additionally the Defense chose to

withdraw the plea of Not Guilty and to then enter the plea of No Contest. Counsel

stated that the lack of DNA Testing results were [sic] only one factor in their

decision to proceed upon a plea of No Contest and that their main reason for

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entering the plea of No Contest was to preserve and protect the Criminal Rule 11

negotiations entered into between the Defense counsel and the prosecution.

“The possibility for the submission of the DNA results remained and

existed, but the lack thereof was not the overriding decision to proceed with the

plea of No Contest. As a result it would be incorrect to classify this evidence as

newly discovered.

“Further considering the sufficiency of the DNA Test results, the Court does

not find that [that] is sufficient to rebut the identifying evidence offered by the

prosecutor, nor is it the sole identifying piece of evidence linking the Defendant to

the crimes convicted. * * * [E]ven if the Court would consider the existence of the

DNA test results, the evidence previously considered by the Court overwhelmingly

establishes the Defendant’s guilt of all charges beyond a reasonable doubt.

“* * *

“Prior to the acceptance of the plea, the Court made an extensive and

detailed inquiry of the Defendant to assure the Court that the plea was knowingly,

intelligently, and voluntarily made. Therefore, the Court finds that the Defendant’s

plea was unequivocally and unconditionally made with full knowledge of its effect

and consequence.”

{¶ 44} Appellant contends, and we agree, that a presentence motion to

withdraw a plea of no contest should be freely and liberally granted. However, the

determination whether to grant or deny such a motion is a matter committed to the

sound discretion of the trial court. Here, the panel found that the circumstances of

this case did not warrant granting appellant’s motion to withdraw his pleas of no

contest. Based on a review of the record and a careful consideration of the

arguments advanced by appellant, we find that the panel did not abuse its discretion

in denying appellant’s motion to withdraw his pleas and to reinstate a jury trial.

{¶ 45} At the time appellant waived his right to a jury trial, and at the time

he entered his pleas of no contest, appellant was manifestly aware of the existence

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of the DNA testing and that the results of the testing were not yet available.

Appellant was also clearly aware at the time of the jury waiver, and at the time he

entered his pleas, that there was a chance the DNA test results would be favorable

to the defense. However, despite this knowledge, and with the option of proceeding

to trial, appellant chose to waive his right to a jury trial and entered his pleas of no

contest. The panel found that defense counsel was aware, at all relevant times, that

the DNA test results would have been available to appellant prior to any witness

testimony if appellant had elected to proceed to trial. Additionally, the record

reveals that the main reason appellant entered the pleas of no contest was to take

advantage of plea bargaining negotiations. Thus, the absence of the DNA test

results was not the overriding reason appellant proceeded upon the pleas of no

contest. Moreover, as the panel found, the evidence supporting appellant’s

convictions was overwhelming regardless of the DNA test results. Appellant’s jury

waiver and his pleas of no contest were knowingly, voluntarily, and intelligently

made with full knowledge of the consequences, and the panel’s decision to deny

appellant’s motion was not unreasonable, arbitrary, or unconscionable.

{¶ 46} Accordingly, for the foregoing reasons, we reject appellant’s fourth

proposition of law.

V

{¶ 47} In his second proposition of law, appellant complains of several

instances where he was allegedly deprived of the effective assistance of trial

counsel. Upon a review of the record, and having considered each and every

instance of alleged ineffective assistance of trial counsel raised by appellant, we

find that appellant has failed to satisfy his burden of establishing ineffective

assistance of counsel under the standards set forth in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We discuss, in detail, only

those instances of alleged ineffective assistance of counsel that warrant further

analysis.

18

January Term, 1998

{¶ 48} Appellant argues that his trial attorneys erred in delaying the request

for DNA testing. However, at the August 21, 1989 hearing on appellant’s motion

for scientific testing, defense counsel informed the court of the reasons for the

delay. Defense counsel informed the court that it was a “big decision” for them to

go forward with the testing. The state’s evidence from BCI had indicated that the

blood on the sweatshirt and the vest was consistent with the blood of the victim. If

DNA testing confirmed that result, trial counsel indicated that appellant had no

plausible defense. Conversely, if the DNA testing refuted the BCI blood analysis,

trial counsel indicated that appellant would have a much stronger case. The

transcript of the August 21 hearing also indicates that defense counsel made a

tactical decision to proceed with DNA testing based upon the evidence that was

available to them at that time. While it may have been better for defense counsel

to have requested the DNA testing at an earlier date, it was not unreasonable for

counsel to have waited to gather all the information available before making their

tactical decision to request DNA testing.

{¶ 49} In this proposition, appellant also contends that the terms of the plea

agreement were never discussed in open court, in violation of Crim.R. 11(F), and

that “[c]ounsel was ineffective for failing to ever raise an objection as to the manner

in which the negotiated plea was placed before the trial court.” We agree that the

manner in which the negotiated plea agreement was placed before the panel

violated Crim.R. 11(F), which requires that, in felony cases, “the underlying

agreement upon which the plea is based shall be stated on the record in open court.”

(Emphasis added.) Here, the plea agreement was not discussed in open court.

However, the terms of the plea agreement were stated on the record during an

October 2, 1989 chambers conference attended by the parties and Judge Economus

prior to appellant’s jury waiver, and Judge Economus subsequently served as the

presiding member of the three-judge panel. On October 10, 1989, the plea

agreement was also discussed in chambers before two members of the panel

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(Judges Economus and McNally), with all parties present, and the terms of the

agreement were placed on the record. Therefore, although Crim.R. 11(F) was

technically violated, since the terms of the plea were stated on the record in

chambers, rather than being stated on the record in open court, we fail to see how

appellant was prejudiced by the technical violation of the rule. All parties and the

court were aware of the agreement, and the agreement was adhered to by the parties.

{¶ 50} Appellant also contends that “to permit a capital defendant to plead

no contest when no benefit is received for the plea is prima facie evidence of

ineffective assistance.” In this regard, appellant implies that the plea agreement

was essentially one-sided, favoring only the prosecution, and that appellant did not

receive anything in return for his pleas. However, we find that appellant did receive

what he bargained for in exchange for the pleas, i.e., the state agreed not to make

any recommendation concerning appellant’s sentence and agreed not to vigorously

challenge defense witnesses during the penalty phase unless the witnesses perjured

themselves. The state complied with the terms of the negotiated plea.1

Additionally, defense counsel knew that if the panel accepted the pleas of no

1. The question whether the state complied with the terms of the negotiated plea agreement is the

subject of appellant’s tenth proposition of law. In that proposition, appellant claims that the state

repeatedly violated the plea agreement during closing arguments in the penalty phase. For instance,

appellant claims that “[d]uring his closing argument to the [panel], the state argued that the court

ought not to consider mercy in this case,” and that “[l]ater the prosecution argued, ‘an eye for an

eye.’ ” Appellant then claims that “[i]t is extremely difficult to understand how these arguments do

not constitute a recommendation for the death penalty.” However, a review of the record reveals

that the prosecutor never actually made the arguments appellant has attributed to him. The

prosecutor did not argue that the panel “ought not to consider mercy,” but did argue that mercy was

forgiveness, and forgiveness was not justice, and that the victim’s family expected justice, not

mercy. Defense counsel objected to this statement and the panel indicated that it would disregard

the prosecutor’s comments. The prosecutor also never uttered the phrase “an eye for an eye,” but

instead stated, “[i]f one taketh another captive, then to captivity he must be taken.” (Emphasis

added.) The defense objected to the prosecutor’s comment in this regard, and the panel admonished

the prosecutor for having made the comment. In any event, the fact remains that the prosecutor

never specifically recommended imposition of the death sentence in this case and thereby adhered

to the terms of the plea agreement. Furthermore, even assuming, arguendo, that the comments made

by the prosecutor did somehow violate the terms of the plea agreement, there is absolutely no

indication in the record that the panel was influenced by or considered these comments in arriving

at its sentencing decision.

20

January Term, 1998

contest, the panel could dismiss the R.C. 2929.04(A)(7) death penalty specification

pursuant to Crim.R. 11(C)(3). Therefore, the no contest pleas provided appellant

with a chance to avoid the death sentence, and defense counsel specifically

requested a dismissal of the specification after the panel had accepted the pleas.

Defense counsel also knew that if the case had proceeded to trial on the issue of

guilt or innocence, the finder of fact would have heard a detailed account of all the

facts and circumstances surrounding the crimes, including the disturbing details

regarding the killing and the manner of the victim’s death. In contrast, the pleas of

no contest essentially permitted appellant to proceed to mitigation on a relatively

brief, cold, and sanitized record of the events. The decision not to contest the

charges was a tactical decision that, in our judgment, was both reasonable and

practical in light of the evidence of appellant’s guilt. Appellant’s suggestion that

the plea agreement was one-sided and that he did not receive anything in return for

the pleas is simply not supported by the record.

{¶ 51} Therefore, as previously stated, we find that appellant has failed to

meet his burden of establishing ineffective assistance of counsel under the standards

set forth in Strickland. Accordingly, we reject appellant’s second proposition of

law.

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VI

{¶ 52} Having considered appellant’s propositions of law, we must now

independently review the death sentence for appropriateness and proportionality.

Appellant purposely killed Vesper while committing an aggravated robbery and an

aggravated burglary. We find that the specification of the aggravating circumstance

appellant was found guilty of committing (R.C. 2929.04[A][7]) was proved beyond

a reasonable doubt.2

{¶ 53} In mitigation, appellant presented the testimony of family members

and other witnesses. Dana Hill, appellant’s mother, testified that appellant was

born July 21, 1969. According to Dana, appellant was a “slow” learner in almost

everything he did as a child. When appellant was a toddler, he was hospitalized on

forty or fifty different occasions for convulsions. During appellant’s childhood,

Dana felt that he was interfering with her life because of his various medical and

behavioral problems. Her resentment of appellant eventually led to verbal and

2. R.C. 2929.04(A) provides that “[i]mposition of the death penalty for aggravated murder is

precluded, unless one or more of the following [i.e., the statutory aggravating circumstances set

forth in R.C. 2929.04(A)(1) through (8)] is specified in the indictment or count of the indictment

pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt[.]” R.C.

2941.14(B) provides that “[i]mposition of the death penalty for aggravated murder is precluded

unless the indictment or count in the indictment charging the offense specifies one or more of the

aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code. If more

than one aggravating circumstance is specified to an indictment or count, each shall be in a

separately numbered specification * * *.” (Emphasis added.)

In the case at bar, Count One of the indictment charged appellant with the aggravated

murder of Vesper. Specification One to Count One alleged that appellant committed the murder

during the course of an aggravated robbery and/or aggravated burglary. This R.C. 2929.04(A)(7)

death penalty specification was the only specification set forth in the indictment. We note, in

passing, that two R.C. 2929.04(A)(7) specifications of aggravating circumstances could have been

alleged in the indictment, i.e., one specification premised on appellant having killed Vesper during

the course of an aggravated robbery, and an entirely separate specification premised on appellant

having killed Vesper during the course of an aggravated burglary. However, if more than one

aggravating circumstance was intended to be specified, the indictment should have contained two

separate specifications. The fact that there was only one specification means that, for purposes of

our review, we consider only one aggravating circumstance. We find that the state proved, beyond

a reasonable doubt, the commission of the aggravated robbery and aggravated burglary that served

as the basis for the capital specification in this case. That single specified aggravating circumstance

will be weighed against the evidence in mitigation.

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January Term, 1998

physical abuse. Appellant’s father also physically abused him and Dana. Dana

testified that, at some point, she stopped seeking medical care and treatment for

appellant’s convulsions and, as he matured, his seizures began to manifest

themselves in forms of rage and anger. Dana also testified that appellant constantly

got into trouble at home and at school, but that she did very little to address the

problem. She testified further that, during appellant’s childhood, she told him that

she hated him and wished that he had never been born. Dana also provided

testimony relating to other aspects of appellant’s history and background.

{¶ 54} Natasha V. Spivey, appellant’s sister, testified that her parents

treated appellant more harshly than they treated her and her brother Mark.

According to Natasha, whenever she, Mark, and appellant got into trouble,

appellant was always the most severely punished. Natasha testified further that

appellant loved their father and that appellant attempted to act like him. Natasha

also testified concerning an incident where her parents got into a fight and her

mother was injured and went to the hospital.

{¶ 55} Wanda Daniels, appellant’s cousin, testified that she had grown up

with appellant and that she and appellant had been close friends. According to

Daniels, appellant was treated as an outcast by other family members throughout

his childhood. Daniels testified that appellant got into trouble as a child because he

could not control his impulses. Daniels also described an incident where she and

appellant, who was six or seven years old at the time, had been raped by Daniels’s

uncle.

{¶ 56} Mary Stewart was appellant’s probation officer in 1985. Stewart

testified that, in 1985, appellant was immature for his age, was experiencing

behavioral problems at school and at home, and was in need of long-term

counseling. Stewart testified further that she had made certain recommendations

regarding the type of care that was needed for appellant, but that his family failed

to follow through with Stewart’s recommendations.

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{¶ 57} Kathy Gillardi was a social worker for the Mahoning County

Children’s Services Board in 1982 and 1983. In 1981, appellant had been referred

to the Youth Services Unit of the Youngstown Hospital Association to determine

the cause of his behavioral problems at school. Gillardi initially became involved

with appellant’s family in 1982 when appellant’s parents removed him from the

hospital before a complete evaluation could be conducted. According to Gillardi,

appellant’s family was very resistant to the services offered for his care and

treatment. In 1982, Gillardi was successful in having appellant readmitted to the

Youth Services Unit, but his parents once again removed him from the hospital. In

1983, Gillardi was successful in receiving some cooperation from appellant’s

parents in having him evaluated. At that time, testing of appellant indicated that he

suffered from, among other things, severe auditory problems. Additionally, in

1983, appellant was admitted to the Youth Services Unit for a complete evaluation.

Following the evaluation, Dr. Joseph A. Abrams made numerous recommendations

for appellant’s care and treatment, including medication, further evaluation, and

family counseling. Gillardi testified that appellant’s parents remained resistant to

professional services and that they never followed through with various

recommendations for his continued care and treatment.

{¶ 58} Dr. Abrams, a developmental pediatrics specialist, testified that he

had diagnosed appellant in 1983 as having XYY Syndrome, a genetic chromosome

abnormality. According to Abrams, individuals with XYY Syndrome tend to be

tall and thin, have less muscle development than an average person, tend to have

learning problems, and have minor congenital abnormalities. Abrams testified that

there is an increased risk of behavioral problems associated with XYY Syndrome.

According to Abrams, XYY Syndrome does not itself result in mental disease, but

“results in an increased risk for mental disease.” Abrams testified further that

appellant’s chromosome abnormality placed him at risk for committing criminal

acts, but that the syndrome itself did not cause him to be aggressive and to commit

24

January Term, 1998

violent acts. Rather, Abrams indicated that family environment plays a vital role

in whether a person with XYY syndrome is likely to engage in criminal behavior.

In this regard, Abrams testified that appellant “did not have a fair shake either from

mother nature or from the environment.” Abrams concluded that “[t]he

combination of the two factors, his genetics, the family, and failure of the

environment to fulfill his needs leads to his criminal behavior and violent

behavior.” Abrams also indicated that when he examined appellant in 1983,

appellant was not aggressive and was capable of controlling his impulses. In

addition to diagnosing XYY Syndrome, Abrams diagnosed appellant in 1983 as

suffering from “[c]onduct disorder, unsocialized, nonaggressive,”

“[d]evelopmental language disorder, receptive type,” and “[a]ttention deficit

disorder without hyperactivity.”

{¶ 59} Dr. James R. Eisenberg, a court-appointed clinical and forensic

psychologist, also testified in mitigation. Eisenberg first interviewed appellant in

October 1989. Between that time and the time of the mitigation hearing, Eisenberg

interviewed appellant on several occasions, performed psychological testing,

reviewed appellant’s extensive records, and, it seems, interviewed members of his

family. Eisenberg testified that appellant has a full scale I.Q. of 74, which,

according to Eisenberg, indicated that appellant was “in the borderline range of

intelligence.” Eisenberg also performed testing to determine appellant’s adaptive

level of functioning, and concluded that “[i]ntellectually we are looking at someone

who is basically functioning much like a ten year old.” Eisenberg reviewed

appellant’s prior hospital records and various other reports and information

concerning appellant. Eisenberg testified that appellant’s records showed or

consistently showed the presence of XYY Syndrome, conduct disorder,

developmental language disorder, attention deficit disorder, learning problems,

temporal lobe seizures, minimal brain dysfunction, juvenile arthritis, and the

possibility of latent schizophrenia.

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{¶ 60} Eisenberg diagnosed appellant as suffering from an attention deficit

disorder, “alcohol and marijuana abuse, possible dependency,” and a “borderline

personality disorder with schizoid and anti-social features.” Eisenberg testified

that, in his opinion, “in a variety of settings, based on all the conditions that

[appellant] carries with him, those conditions render him substantially impaired in

specifically controlling impulse.” Eisenberg was then asked the following

questions, and gave the following responses, concerning the existence of the R.C.

2929.04(B)(3) mitigating factor:

“Q. Doctor, based upon your clinical and psychological evaluation of

Warren Spivey, and all of the other materials and all of the information available to

you, do you have an opinion based on reasonable scientific certainty as to whether

or not Warren Spivey at the time of the commission of this offense, because of a

mental disorder situation or defect, [lacked] substantial capacity to appreciate the

criminality of his conduct or to conform his conduct to the requirements of the law?

“A. Yes, I have an opinion.

“Q. Will you tell us what that opinion is, doctor?

“A. What I would like to do is break it down into three areas. The first area

that you asked is if he is suffering from a substantial mental illness or defect.

“Q. Yes, mental disorder or defect?

“A. My opinion is that he is suffering from a number of defects, which

together, create the equivalent of a mental defect, his limited intelligence, his

borderline personality functions, his attention deficit disorder and subsequent

problems cause all of those things, and including alcohol and marijuana abuse, in

my opinion he was suffering from those conditions on the day in question. The

second part of that question is whether or not he understands the criminality of his

conduct, in other words, the wrongfulness. My opinion is that he did understand.

“Q. That he did understand?

26

January Term, 1998

“A. That he did understand the criminality of his conduct, yes. I think he

was in a position to know what he was doing and to know what he was doing was

wrong. The third part of that question is if he has a substantial impairment, in other

words, if he was unable to conform his conduct.

“Q. Lack of substantial capacity to conform?

“A. My opinion is that he does have or he lacks the capacity to conform his

conduct to the requirements of the law because of those defects.”

{¶ 61} Eisenberg was questioned extensively on cross-examination, but

was asked only a few questions directly relating to the R.C. 2929.04(B)(3)

mitigating factor. On cross-examination, the prosecutor asked Eisenberg, “Are you

suggesting to this Court that on January 3, 1989, or 4th, when he took the life of

Mrs. Vesper, in that particular time frame he could not control his behavior?” In

response, Eisenberg stated, “No, I’m not saying that.” The prosecutor then asked

Eisenberg what, if anything, Eisenberg knew concerning the killing that led him to

conclude that appellant may have acted impulsively. Eisenberg responded to the

question by indicating that he was aware of, among other things, appellant’s version

of the killing and “all of the records that precede that event that establish the

foundation for his disorder.” The prosecutor also asked Eisenberg a series of

questions concerning the murder in an attempt to show that appellant had not acted

impulsively in beating his victim to death and in stealing, among other things, the

victim’s car and the title to the car. Later, during closing arguments in the penalty

phase, the prosecutor stated, “No one questions whether or not Warren Spivey may

have lacked substantial capacity to conform his conduct to the law.” However, the

prosecutor also argued that “if you do not have a mental disease or mental defect,

whether or not one can conform is irrelevant.”

{¶ 62} Upon a review of the evidence presented in mitigation, it is clear to

us that appellant had a very difficult and troubled childhood. He was plagued by

physical and mental problems or deficiencies, had difficulties in school, suffered

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parental rejection at an early age, was raised in an unsupportive family

environment, was treated as an outcast by certain family members, was physically

and verbally abused by his parents, and was sexually abused on at least one

occasion. We find that appellant’s troubled childhood, history, and family

background are entitled to some weight in mitigation.

{¶ 63} The nature and circumstances of the offense reveal nothing of any

mitigating value. Additionally, appellant presented no evidence regarding the

mitigating factors set forth in R.C. 2929.04(B)(1), (2), (5) and (6), and our review

of the record clearly reveals that these factors are inapplicable here. We have

considered the youth of the offender (appellant was nineteen years old at the time

of the offense) and find that this R.C. 2929.04(B)(4) factor is entitled to some

weight in mitigation.

{¶ 64} The mitigating factor set forth in R.C. 2929.04(B)(3) is “[w]hether,

at the time of committing the offense, the offender, because of a mental disease or

defect, lacked substantial capacity to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law.” (Emphasis added.) Dr.

Eisenberg testified as to the existence of the R.C. 2929.04(B)(3) mitigating factor

in this case. Specifically, Eisenberg testified that, at the time of the killing,

appellant’s combined psychological conditions rose to the level of (or were

equivalent to) a mental defect and that, because of the defect or defects, appellant

lacked substantial capacity to conform his conduct to the requirements of the law.

Although Eisenberg’s testimony on cross-examination casts significant doubt on

the issue of whether appellant lacked substantial capacity to control his behavior at

the time of the offense, we find that Eisenberg’s testimony on direct examination

was absolutely clear as to his belief that appellant lacked substantial capacity to

conform to the requirements of the law at the time of the killing due to the combined

effects of appellant’s diagnosed conditions.

28

January Term, 1998

{¶ 65} The panel and the court of appeals determined that appellant had not

established the existence of the R.C. 2929.04(B)(3) mitigating factor in this case on

the basis of certain psychiatric and psychological evaluation reports that each court

considered to have been admitted into evidence during the penalty phase, i.e., the

reports of Drs. A. James Giannini, Stanley J. Palumbo, and Nancy J. Huntsman.

The panel and the court of appeals concluded that these reports essentially rebutted

Dr. Eisenberg’s conclusions relating to the R.C. 2929.04(B)(3) mitigating factor.

However, the reports cited and relied upon by the panel and the court of appeals

were not originally included in the record certified to this court by the Clerk of the

Mahoning County Court of Appeals. Accordingly, this court made several attempts

to obtain the reports and other information concerning them for purposes of our

independent review of appellant’s death sentence.3 We have now received the

3. Portions of the record in this case were filed with the Clerk of the Supreme Court of Ohio on

March 17, 1997. All parties were notified of the filing. Upon request of the Clerk of the Supreme

Court of Ohio, the Mahoning County Clerk of Courts forwarded additional portions of the record.

These additional portions of the record were filed with this court on October 2, 1997. Again, all

parties were notified of the filing. Upon further inquiry by the Clerk of the Supreme Court of Ohio,

specifically concerning the missing reports of Drs. A. James Giannini, Stanley Palumbo, and Nancy

Huntsman, the Mahoning County Clerk of Courts issued the following notice which was filed in

this court on October 24, 1997:

“NOTICE

“Notice is hereby given that the Mahoning County Clerk of Courts is now in possession of

materials, relating to the above-referenced matter [State v. Spivey], recently given to [the clerk] by

the Mahoning County Court Reporters. It appears that these items were not received by this office

and, as such, are not time-stamped. Accordingly, these items were not transmitted as part of the

Record on Appeal. However, this Notice is being filed to inform this Court and counsel of the

existence of the Documents in the event that the items should have been filed with this office or in

the event that their inclusion with the the [sic] Record on Appeal is needed. The items are set forth

in the attached appendix. A copy of this notice is being sent to all counsel of record.”

In the appendix to the notice, the Mahoning County Clerk of Courts listed, among other

things:

“D. Manila folder marked ‘Sentencing Hearing’ (Aggravation Mitigation) containing:

“* * *

“3. Beige envelope dated December 5, 1989, marked ‘Not Exhibits Written Material’

containing:

“* * *

“b. September 29, 1989 Report of Dr. A. James Giannini

“* * *

“d. October 24, 1988 Psychological Evaluation prepared by Nancy Huntsman, Ph.D.

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“e. September 22, 1989 Sanity Evaluation prepared by Stanley Palumbo, Ph.D.”

The fact that the reports of Drs. Giannini, Palumbo, and Huntsman were absent from the

record certified to this court by the Mahoning County Clerk of Courts, coupled with the assertions

made in the above-quoted “notice,” gave us pause to consider a number of important issues.

Specifically, we began to question whether the subject reports were ever formally admitted into

evidence for consideration by the three-judge panel that tried this case, whether the reports were

ever actually received and reviewed by the court of appeals, and, ultimately, whether the reports

should be included as part of the record for our review. With those questions in mind, we thoroughly

reviewed the entire record that had been certified to us by the Mahoning County Clerk of Courts.

However, we were unable to determine, with absolute certainty, whether the reports of Drs.

Giannini, Palumbo, and Huntsman were ever formally admitted into evidence for consideration by

the panel.

For instance, there was an indication in the transcript that the original trial judge (Judge

Economus), who subsequently became one of the members of the three-judge panel, did review the

report of Dr. Palumbo in September 1989, had it stamped as being filed, and then had the report

locked in “the safe.” There were also indications in the transcript that, among other things, Dr.

Giannini’s report and certain records and reports from the Forensic Center had been included in an

exhibit that was apparently marked and introduced in the penalty phase as “Defendant’s Cumulative

Exhibit 1.” That “cumulative” exhibit was admitted into evidence at the mitigation hearing and was

referred to in the transcript as “Defendant’s Exhibit No. 1.” However, in the record before us,

“Defendant’s Exhibit 1” is composed of a stapled packet of materials that contains no such reports.

To complicate matters further, there were indications in the transcript that the packet of materials

before us that is marked “Defendant’s Exhibit 1” was actually part of the “cumulative” defense

exhibit. Additionally, the transcript was clear that the reports of Giannini, Palumbo, and Huntsman

were used by the state to cross-examine defense expert Dr. James R. Eisenberg during the mitigation

hearing. A further complicating factor was that both the opinion of the trial panel and that of the

court of appeals clearly stated that the reports of Giannini, Palumbo, and Huntsman were “admitted”

and, thus, reviewed. However, as previously noted, none of the reports was physically contained in

the record certified to this court by the Mahoning County Clerk of Courts, and we were unable to

determine whether the subject reports were actually admitted as part of the record.

Therefore, given all the questions and circumstances surrounding the subject reports, and

believing that the reports were extremely relevant for purposes of our independent review of the

appropriateness of appellant’s death sentence, we issued the following entry on December 24, 1997:

“This cause is pending before the court as an appeal from the Court of Appeals for

Mahoning County.

“In its December 1989 opinion, the trial court (three-judge panel) stated:

“ ‘In consideration whether or not the Defendant, at the time of committing the offense

because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his

conduct, or to conform his conduct to the requirements of the law, the court reviewed the admitted

reports of Doctors Stanley J. Palumbo, A.J. Giannini and Nancy J. Huntsman. None of the

examiners felt that the Defendant suffered from a borderline psychosis. All of them did agree that

the Defendant has personality problems. However, the evidence is clear that his personality disorder

is not the product of a mental illness or defect. For example, Dr. Giannini found that the Defendant’s

character disorder does not meet the criteria for a psychiatric organic mental defect. Dr. Palumbo

stated that it is his opinion that the Defendant understood the nature and wrongfulness of his actions

and that at the time of the event “there was no reason to believe that, in any way, was he [Defendant]

unable to prevent his behavior from occurring because of any gross mental disorder.” ’

“Similarly, the court of appeals’ opinion stated:

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January Term, 1998

subject reports as well as the necessary information and briefing concerning them

pursuant to our order of December 24, 1997. We are convinced that the information

“ ‘It was also admitted, at the mitigation hearing, reports of Dr. J. [sic] Stanley Palumbo,

Dr. A.J. Giannini, and Nancy Huntsman. None of the examiners felt that the defendant suffered

from a borderline psychosis. All of them did agree that the defendant had personality problems;

however, it was their joint opinion that his personality disorder was not the product of a mental

illness or defect. Dr. Palumbo stated that, in his opinion, the defendant understood the nature and

wrongfulness of his actions and that, at the very time of the event, there was no reason to believe

that in any way was the defendant unable to prevent his behavior from occurring because of any

gross mental disorder.’

“This court has reviewed the entire record certified to us by the Clerk of the Mahoning

County Court of Appeals and has been unable to locate the reports referenced by the trial court and

the court of appeals. Accordingly, counsel for the state of Ohio and for appellant Warren Spivey

are ordered to review the entire record in case No. 97-414 and:

“1. Locate, if they exist, the reports of Drs. A.J. Giannini, Stanley Palumbo and Nancy

Huntsman which are referenced in the opinion of the trial court and the opinion of the court of

appeals.

“2. Determine whether the reports, if any, are a part of the formal record of this case by

way of having been admitted into evidence before the trial court (three-judge panel).

“3. File a memorandum, within thirty days of the date of this entry, pointing to a place or

places in the record where the reports, if any, have been properly entered into the evidence.

“4. File with this court the actual reports, if any, and if admitted.

“5. If there are no such reports or if there are reports but they were not admitted into the

evidence, then counsel should so state.” (1997), 80 Ohio St.3d 1488, 687 N.E.2d 1387.

On January 21, 1998, the state of Ohio filed a memorandum in response to our December

24, 1997 entry. Attached to the memorandum were copies of the reports of Drs. Giannini, Palumbo,

and Huntsman. A review of the state’s memorandum and, more important, a review of the reports

attached thereto convinces us that the subject reports were admitted into evidence during the penalty

phase as part of “Defendant’s Cumulative Exhibit 1.” On January 21, the state also filed a motion

to supplement the record with the reports of Drs. Giannini and Palumbo. Attached to the motion

was an affidavit signed by the Chief Deputy of the Clerk of Courts for Mahoning County. In her

affidavit, the Chief Deputy Clerk provided the following information concerning these reports:

“2. As a result of the judgment entry of [the Ohio Supreme Court] filed December 24,

1997, regarding specific reports submitted as evidence I conducted another search of the Mahoning

County Courthouse.

“3. As a result of this search, it was discovered that the original reports of Drs. Palumbo

and Giannini had been inadvertently forwarded to the microfilm department. This area was not

previously searched since records are not to be forwarded to microfilm unless the case has been

closed.

“4. As a result of this search, it was discovered that the report of Dr. Giannini had been

filed September 29, 1989. The original of this report was located in the microfilm department. The

original of this report is attached to this affidavit.

“5. The search also revealed that the original report of Dr. Palumbo was in the microfilm

department; it had been filed with this Court on September 22, 1989. The original of this report is

attached to this affidavit.”

The state’s motion to supplement the record is hereby granted.

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received clearly establishes that the reports were admitted into evidence in the

penalty phase as part of a cumulative defense exhibit and that they were properly

considered by the panel and the court of appeals as part of the formal record in this

case.

{¶ 66} The reports of Drs. Giannini and Palumbo (and perhaps even the

report of Dr. Huntsman) are contrary to and/or inconsistent with Dr. Eisenberg’s

conclusion that appellant, because of a mental defect, lacked substantial capacity to

conform his conduct to the requirements of the law at the time of the offenses. Dr.

Huntsman, a psychologist, performed a psychological evaluation of appellant in

October 1988 (prior to the killing) for purposes of determining his competency to

stand trial in an unrelated criminal matter. At that time, Huntsman indicated that

although appellant had an “Antisocial Personality Disorder,” he had no mental

disease or disorder that would render him incompetent to stand trial. Dr. Palumbo,

a psychologist, examined appellant in September 1989 for purposes of his pleas of

not guilty by reason of insanity. In his report, Palumbo concluded that, at the time

of the murder, “Mr. Spivey understood the nature of his behavior and the

wrongfulness of his actions, and there is no reason to believe that, in any way, was

he unable to prevent his behavior from occurring because of any gross mental

disorder.” In the report, Palumbo also stated that “[a]t the time of the event, Mr.

Spivey did not appear to be suffering from any gross mental disorder which would

have affected his behavior.” Dr. Giannini, a psychiatrist, also examined appellant

in September 1989 for purposes of his pleas of not guilty by reason of insanity. In

his report, Giannini stated:

“On the basis of my examination of Mr. Spivey, I find that he meets some

criteria for a character disorder but does not qualify for a diagnosis in this category.

He does not meet criteria for a thought or mood disorder or an organic mental

defect. * * * In conclusion, therefore, it is my opinion that Mr. Spivey does not

now or did in the recent past suffer from any psychiatric defect. * * * In my opinion,

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January Term, 1998

he is competent to stand trial and participate meaningfully in his own defense. He

does not suffer from any psychiatric condition which would impair his ability to

distinguish right from wrong, impair his ability to understand the consequences of

his actions or impair his ability to refrain from such activity.”

{¶ 67} Having reviewed the conclusions of all of the experts, and

considering the entirety of Dr. Eisenberg’s testimony concerning the R.C.

2929.04(B)(3) factor and appellant’s capacity to control his behavior, we find that

appellant did not demonstrate the existence of the R.C. 2929.04(B)(3) mitigating

factor by a preponderance of the evidence. We reach this conclusion for a number

of reasons. First, the reports of Drs. Giannini and Palumbo clearly indicate that

appellant had no psychiatric or psychological disorder, defect, or condition that

would have in any way impaired appellant’s ability to control his behavior at the

time of the murder. Second, despite Dr. Eisenberg’s testimony on direct

examination, Eisenberg did acknowledge, on cross-examination, that it was not his

testimony that appellant lacked the ability to control his behavior at the time of the

killing. Third, we find no credible evidence in the record indicating that appellant

acted impulsively and, thus, uncontrollably at the time of the murder. However,

even though appellant did not demonstrate the existence of the R.C. 2929.04(B)(3)

factor by a preponderance of the evidence, we do find that appellant’s various

psychological problems, as testified to by Dr. Eisenberg and as reflected elsewhere

in appellant’s records, are entitled to some weight in mitigation as R.C.

2929.04(B)(7) “other” mitigating factors.

{¶ 68} Weighing the aggravating circumstance appellant was found guilty

of committing against the evidence presented in mitigation, we find that the

aggravating circumstance outweighs the mitigating factors beyond a reasonable

doubt.

{¶ 69} Finally, we have undertaken a comparison of the sentence imposed

in this case with those in which we have previously affirmed the death penalty. We

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SUPREME COURT OF OHIO

find that appellant’s death sentence is neither excessive nor disproportionate to the

penalty imposed in similar cases.

{¶ 70} Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG

STRATTON, JJ., concur.

__________________

APPENDIX

“Proposition of Law 1[:] U.S. CONST. amend. VI and XIV and OHIO

CONST. art. I, §§ 10 and XVI guarantee a criminal defendant a fair and impartial

jury. A trial court must determine that any waiver of such right is knowingly,

intelligently, and voluntarily made.

“Proposition of Law 2[:] The ineffective assistance of counsel provided to

Defendant-Appellant violated his rights to a fair and impartial jury trial and

sentence, as guaranteed by the U.S. CONST., amend. V, VI, VIII, and XIV and by

OHIO CONST., art. I, §§ 5, 9, 10, and 16.

“Proposition of Law 3[:] A criminal defendant is deprived of due process

of law, U.S. CONST. amend. XIV, a remedy in the courts by due process of law, and

the administration of justice without denial, OHIO CONST. art. I, § 16 when a trial

court accepts a plea of guilty or no contest without a sufficient inquiry into the

defendant’s competence to waive his constitutional rights.

“Proposition of Law 4[:] Due process of law, U.S. CONST. amend. XIV,

and the administration of justice without denial and a remedy by due course of law,

OHIO CONST. Art. I, § 16, demand that withdrawal of a plea of guilty or no contest

before sentence must be freely granted.

“Proposition of Law 5[:] Ohio’s death penalty law, OHIO REV. CODE ANN.

§§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and

34

January Term, 1998

2929.05, violate U.S. CONST. amend. V, VI, VIII, and XIV and the immunities

specified in OHIO CONST., art. I, §§ 1, 2, 5, 9, 10, and 16.

“Sub-Proposition of Law No. 5(A)[:] Ohio’s death penalty law violates

U.S. CONST. amend. VIII and XIV and OHIO CONST. art. I, §§ 1, 2, 9, 10, and 16

because the effective appellate review required by those constitutional provisions

is lacking.

“Sub-Proposition of Law No. 5(B)[:] Death by Electrocution and Lethal

Injection Violate U.S. CONST. amend. VIII and XIV and OHIO CONST., art. I, § 9.

“Sub-Proposition of Law No. 5(C)[:] Ohio’s death penalty law violates the

guarantees of due process of law, equal protection of the law, and cruel and unusual

punishment specified in U.S. CONST. amend. VIII and XIV and OHIO CONST. art.

I, §§ 2, 9, and 16.

“Sub-Proposition of Law No. 5(D)[:] Because Ohio’s death penalty is

fraught with discrimination, it violates U.S. CONST. amend. VIII and XIV and OHIO

CONST. art. I, §§ 2, 9, and 16.

“Sub-Proposition of Law No. 5(E)[:] The unbridled charging discretion

given the government results in Ohio’s death penalty being in violation of U.S.

CONST. amend. VIII and XIV and OHIO CONST. art. I, §§ 2, 9, and 16.

“Sub-Proposition of Law No. 5(F)[:] Ohio’s death penalty violates the

Ohio Constitution; OHIO CONST. art. I, §§ 1, 2, 5, 9, 10 and 16.

“Sub-Proposition of Law No. 5(G)[:] Ohio’s death penalty law violates the

constitutional guarantees of the effective assistance of trial counsel and trial before

an impartial jury, U.S. CONST. amend. VI and XIV and OHIO CONST. art. I, §§ 5

and 10.

“Sub-Proposition of Law No. 5(H)[:] The Ohio death penalty violates U.S.

CONST. amend. VI and XIV and OHIO CONST. art. I, §§ 2, 5, 10, and 16 because the

statutes permit denial of impartial jury.

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SUPREME COURT OF OHIO

“Sub-Proposition of Law No. 5(I)[:] The Ohio death penalty fails to provide

adequate guidelines for deliberation and therefore violates U.S. CONST., amend.

VIII and XIV and OHIO CONST., art. I, § 9.

“Sub-Proposition of Law No. 5(J)[:] The Ohio death penalty law violates

the Rights to a Jury Trial and to be Free from Self-incrimination; U.S. CONST.,

amend. V, VI, and XIV and OHIO CONST., art. I, §§ 1, 5, 10, and 16.

“Sub-Proposition of Law No. 5(K)[:] The Ohio death penalty law fails to

provide a meaningful proportionality review and therefore violates U.S. CONST.,

amend. VIII and XIV and OHIO CONST., art. I, § 9.

“Sub-Proposition of Law No. 5(L)[:] The Ohio death penalty law fails to

provide Adequate Appellate Analysis and accordingly violates U.S. C ONST.,

amend. VIII and XIV and OHIO CONST., art. I, § 9.

“Sub-Proposition of Law No. 5(M)[:] The requirement that death be

imposed in certain circumstances violates U.S. CONST., amend. VIII and XIV and

OHIO CONST., art. I, § 9.

“Sub-Proposition of Law No. 5(N)[:] The Ohio law fails failure [sic] to

require trial courts to make a decision about appropriateness, and therefore violates

U.S. CONST., amend. VIII and XIV and OHIO CONST., art. I, § 9.

“Proposition of Law No. 6[:] Ohio’s mandatory sentencing scheme

prevented the panel of three judges from deciding whether death was the

appropriate punishment in violation of Appellant’s rights as guaranteed by U.S.

CONST., amend. VIII and XIV and OHIO CONST., art. I, §§ 9 and 16.

“Proposition of Law No. 7[:] Failure of the Ohio Supreme Court to

consider errors not raised in the Court of Appeals is a denial of the access to the

courts required by OHIO CONST. art. I, §§ 1 and 16.

“Proposition of Law No. 8[:] The proportionality review that this Court

must conduct in the present capital case pursuant to OHIO REV.CODE ANN. §

2929.05 is fatally flawed and therefore the present death sentence must be vacated

36

January Term, 1998

pursuant to the U.S. CONST. amend. V, VIII, and XIV; OHIO CONST. art. I, §§ 5,

and 10; and OHIO REV.CODE ANN. § 2929.05.

“Proposition of Law No. 9[:] The three judge panel may not base its

decision on non-statutory aggravating factors. To do so is violative of OHIO

REV.CODE ANN. § 2929.04.

“Proposition of Law No. 10[:] When the State violates the OHIO CRIM.R.

11 plea agreement, the court must permit the opportunity for the withdrawal of the

plea.”

37