The opinion
[This opinion has been published in Ohio Official Reports at 85 Ohio St.3d 433.]
THE STATE OF OHIO, APPELLEE, v. WHITE, APPELLANT.
[Cite as State v. White, 1999-Ohio-281.]
Criminal law—Penalties and sentencing—Imposing sentence for aggravated
murder—Victim-impact evidence admissible in capital sentencing hearings,
when—Death penalty upheld, when.
(No. 96-2853—Submitted September 28, 1998—Decided May 12, 1999.)
APPEAL from the Court of Common Pleas of Summit County, No.
CR-96-01-0059.
__________________
{¶ 1} Appellant, Clifton “Sonny” White III, was convicted of the
aggravated murder of Deborah Thorpe with death specifications. Defendant was
sentenced to death for this crime and now appeals to this court as a matter of right.
{¶ 2} Defendant lived with his girlfriend, Heather Kawczk, at 615 Day
Street, Akron. Once Kawczk moved in with him, defendant became extremely
jealous and possessive and sometimes beat Kawczk. Kawczk decided to break up
with defendant, but she had no place to live and was afraid of him.
{¶ 3} Kawczk worked at a Kentucky Fried Chicken (“KFC”) restaurant on
South Arlington Street, where one of her co-workers was Michael Thorpe, Jr.
Kawczk and Thorpe began dating, and Kawczk told Thorpe that she wanted to leave
defendant. Thorpe’s mother, Deborah Thorpe, was a former co-worker of
Kawczk’s, as well as her close friend. Hearing of Kawczk’s problem, Deborah
Thorpe offered her a place to stay.
{¶ 4} On December 10, 1995, Deborah Thorpe and Kawczk drove to 615
Day Street while defendant was away and took Kawczk’s clothes from the
apartment. Distraught, two days later defendant repeatedly telephoned Kawczk,
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apologizing and begging her to come back. Defendant continued to call Kawczk
for several days.
{¶ 5} On the morning of Christmas Eve, around 11:00, defendant pulled up
to the drive-through window at the KFC while Kawczk was working there.
Defendant asked Kawczk whether she could come to his apartment and pick up the
rest of her belongings. Kawczk said she could not, and defendant drove off.
{¶ 6} Later that day, defendant called Kawczk’s mother, Julie Schrey. He
asked Schrey to come to his apartment with Kawczk, since Kawczk did not want to
come alone. Schrey then called Kawczk, who told Schrey that she “didn’t want to
go over there.” Around 12:30 p.m., Schrey called again. She told Kawczk that she
was about to go to the apartment with Deborah Thorpe to pick up Kawczk’s
belongings.
{¶ 7} That afternoon, after Schrey and Deborah Thorpe arrived at 615 Day
Street, defendant killed them both with deer slugs fired from a 12-gauge pump
shotgun.
{¶ 8} About forty-five minutes after Kawczk’s last conversation with
Deborah Thorpe, defendant walked into the KFC and told Kawczk he had some of
her things in the car. Kawczk refused to accompany defendant to his car.
{¶ 9} A few minutes later, defendant came back into the restaurant, shotgun
in hand. He vaulted over the counter, ran toward Kawczk, pointed the gun at her,
and pumped it. At this point, Michael Thorpe confronted defendant, telling him
several times to leave. Defendant responded by shooting Thorpe in the head, and
then he fled. Thorpe survived the shooting but lost most of his right ear, part of his
skull, and the right upper lobe of his brain.
{¶ 10} Later that day, defendant told a friend of his that “I messed up really
bad * * * [.] I shot three people.” Defendant called 911 to report the shootings.
He then got another friend to drive him to the Akron police station. Defendant told
the desk officer at the station, “I done something bad. I just killed a guy at KFC.”
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Defendant also asked for an ambulance at 615 Day Street because “I shot two
people over there.”
{¶ 11} Defendant then spoke to Detective Lawrence McCain. He told
Detective McCain that the two women at the apartment were trying to talk him out
of committing suicide when his gun “went off,” killing Schrey. He said that he then
shot Deborah Thorpe because “he didn’t want her to have to live with the thought
of seeing her friend killed.” As for Michael Thorpe, defendant said Thorpe “got in
the way” and his gun “went off again.” Defendant later told the same story, in more
detail, to Akron Police Captain Paul Callahan and Lieutenant Robert Offret.
{¶ 12} The Summit County Grand Jury indicted defendant on two counts of
aggravated murder, R.C. 2903.01(A) (prior calculation and design), and one count
of attempted aggravated murder. (Two other counts were dismissed before trial.)
Count One (aggravated murder of Julie Schrey) and Count Two (aggravated murder
of Deborah Thorpe) each carried a course-of-conduct specification under R.C.
2929.04(A)(5); Count Two also carried a specification under R.C. 2929.04(A)(3)
(murder for purpose of escaping detection, apprehension, trial, or punishment for
another crime). Each count had a firearm specification under R.C. 2941.141.
{¶ 13} On Count One, the jury convicted defendant of the lesser-included
offense of murder. On Count Two, the jury convicted defendant of aggravated
murder and of both death specifications. The jury also convicted defendant of the
lesser-included offense of attempted aggravated murder on Count Three, and all
firearm specifications.
{¶ 14} Following a mitigation hearing, the court sentenced defendant to
terms of imprisonment on the murder and attempted murder convictions, and
imposed the sentence of death on the aggravated murder conviction.
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{¶ 15} Defendant attempted to appeal the judgment to the Court of Appeals
for Summit County, which dismissed the appeal for want of jurisdiction.1
Simultaneously, defendant appealed the conviction and sentence directly to this
court as a matter of right, pursuant to Section 2, Article IV, Ohio Constitution.
__________________
Michael T. Callahan, Summit County Prosecuting Attorney, and Philip D.
Bogdanoff, Assistant Prosecuting Attorney, for appellee.
Annette L. Powers and Renee W. Green, for appellant.
__________________
LUNDBERG STRATTON, J.
{¶ 16} We have reviewed defendant’s propositions of law, independently
weighed the evidence relating to the death sentence, weighed the aggravating
circumstances against the mitigating factors, and compared the sentence with
sentences in similar capital cases. As a result, we affirm defendant’s convictions
and death sentence.
I. BATSON ISSUE
{¶ 17} At trial, defendant objected to the state’s peremptory challenge of
prospective juror Jesse Dent, arguing that the state challenged Dent because Dent
was black, in violation of the Fourteenth Amendment. See Batson v. Kentucky
(1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. After the state explained its
reasons for striking Dent, the trial court overruled defendant’s objection. In his
fifth proposition of law, defendant contends that the trial court erred.
{¶ 18} Batson establishes a three-step procedure for evaluating claims of
racial discrimination in peremptory strikes. First, the opponent of the strike must
make a prima facie showing of discrimination. Second, the proponent must give a
1. Defendant also appealed that dismissal to this court. We consolidated that appeal, case No. 97-
1001, with the instant case. 79 Ohio St.3d 1401, 679 N.E.2d 718. Subsequently, we dismissed case
No. 97-1001 for want of prosecution. See 80 Ohio St.3d 1452, 686 N.E.2d 524.
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race-neutral explanation for the challenge. Third, the trial court must determine
whether, under all the circumstances, the opponent has proven purposeful racial
discrimination. Id. at 96-98, 106 S.Ct. at 1723-1724, 90 L.Ed.2d at 87-89; Purkett
v. Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834,
839; State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313-
1314.
{¶ 19} At oral argument, the state contended that in order to prevail on a
Batson claim, a defendant must show the existence of a pattern of peremptory
challenges by the state against members of the group in question. Inasmuch as Dent
was the only black prospective juror on whom the state used a peremptory
challenge, the state argues that there was no pattern, and hence no Batson violation.
{¶ 20} We reject this view, for “the exercise of even one peremptory
challenge in a purposefully discriminatory manner would violate equal protection.”
(Emphasis added.) State v. Ellison (Tenn.1992), 841 S.W.2d 824, 827. “ ‘A single
invidiously discriminatory act’ is not ‘immunized by the absence of such
discrimination in the making of other comparable decisions.’ “ Batson, 476 U.S.
at 95, 106 S.Ct. at 1722, 90 L.Ed.2d at 87, quoting Arlington Hts. v. Metro. Hous.
Dev. Corp. (1977), 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450, 465, fn.
14.
{¶ 21} The existence of a pattern of discriminatory strikes is not a
prerequisite either to finding a prima facie case in step one of the Batson analysis
or to finding actual discrimination in step three. Such a rule would ignore Batson’s
requirement that the trial court consider all the circumstances in determining
whether racial discrimination occurred. It would also mean that no Batson
challenge could succeed unless the prosecutor challenged more than one member
of the group in question. Such a rule would license prosecutors to exercise one
illegal peremptory strike per trial. The law of equal protection does not allow “one
free bite.”
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{¶ 22} Thus, the mere fact that the state challenged only one black
prospective juror does not preclude a Batson challenge. See United States v. Battle
(C.A.8, 1987), 836 F.2d 1084, 1086.
{¶ 23} The state also contends that defendant failed to make a prima facie
case of purposeful discrimination. We need not consider this question. At trial, the
state gave its reason for challenging Dent, even though the trial court neither
ordered the state to do so nor found that a prima facie case existed. Once the
proponent explains the challenge and the trial court rules on the ultimate issue of
discrimination, whether or not a prima facie case was established becomes moot.
Hernandez v. New York (1991), 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114
L.Ed.2d 395, 405; State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314.
{¶ 24} Thus, the Batson analysis moves to the second step: whether the state
supplied a race-neutral explanation. The prosecutor told the trial court that he
removed Dent because Dent opposed capital punishment. This is a race-neutral
explanation. Defendant argues that it is nevertheless an invalid explanation because
Dent said that he would put his feelings aside and follow the law. But defendant’s
argument misconceives the nature of a Batson claim. The only issue in step two of
the Batson analysis is whether the proponent gave a race-neutral explanation for
his peremptory challenge. The “explanation need not rise to the level of justifying
exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90
L.Ed.2d at 88. See, also, Purkett, 514 U.S. at 769, 115 S.Ct. at 1771, 131 L.Ed.2d
at 839. While a prospective juror’s answers may be sufficient to survive a challenge
for cause, both prosecutors and defense attorneys must remain free to challenge on
a peremptory basis jurors whose answers create overall concerns on the subject at
issue.
{¶ 25} Finally, step three asks whether, in light of all the circumstances, the
state did, in fact, have a discriminatory motive for striking the juror. The burden
of persuasion always stays with the opponent of the strike. Purkett, 514 U.S. at
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768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. The trial court’s finding is entitled to
deference, since it turns largely “on evaluation of credibility.” Batson, 476 U.S. at
98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21.
{¶ 26} The facts in this case support the state’s explanation. Dent did say
that he opposed the death penalty, had been against it for over five years, and just
did not believe in the death penalty. In fact, he initially said that his beliefs would
prevent or substantially impair his ability to find the defendant guilty (although he
later appeared to change his mind).
{¶ 27} Other facts also point away from a racial motivation. The state “did
not attempt to exclude all blacks, or as many blacks as it could, from the jury.”
United States v. Montgomery (C.A.8, 1987), 819 F.2d 847, 851. When the defense
challenged a black prospective juror because she was a deputy sheriff, the state
argued vigorously in favor of keeping that juror.
{¶ 28} Moreover, the state did not use a peremptory challenge on
prospective juror John A. Rucker, who was black. The state, in fact, waived its
last two peremptories and proclaimed itself satisfied with the jury, including
Rucker. Since the defense had just waived a peremptory, the prosecutors knew that
Rucker would be on the jury as a result. The presence of one or more black persons
on a jury certainly does not preclude a finding of discrimination, but “the fact may
be taken into account * * * as one that suggests that the government did not seek to
rid the jury of persons [of a particular] race.” United States v. Young-Bey (C.A.8,
1990), 893 F.2d 178, 180. See, also, United States v. Canoy (C.A.7, 1994), 38 F.3d
893, 900-901 (citing cases).
{¶ 29} Defendant cites the state’s challenges for cause of two black
prospective jurors, Carolyn A. Howard and James M. Stafford, as showing the
prosecutors’ discriminatory intent. However, both challenges were well supported
by the record, and both were upheld by the trial court. One of those prospective
jurors strongly opposed capital punishment. The other asked to be excused because
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she needed to baby-sit her grandchildren during her son’s honeymoon; the state did
not actually challenge her, but merely supported her request. The state’s actions
with respect to these jurors do not remotely suggest any racial motivation.
{¶ 30} On this record, the trial court reasonably found that defendant did
not carry his burden of persuasion. Indeed, defendant points to no prosecutorial act
or statement during voir dire that supports an inference of racial motivation. Hence,
he shows no basis to disturb the trial court’s ruling. His fifth proposition is
overruled.
II. CHALLENGE FOR CAUSE
{¶ 31} In his sixth proposition of law, defendant contends that the excusal
for cause of prospective juror Stafford violated Wainwright v. Witt (1985), 469 U.S.
412, 105 S.Ct. 844, 83 L.Ed.2d 841. Under Witt, a prospective juror may not be
excused for cause due to his opinions on capital punishment unless his views would
prevent or substantially impair the performance of his duties in accordance with his
instructions and oath. Id. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-852.
{¶ 32} Stafford began by stating that he had opposed capital punishment
since the end of the Vietnam War. The trial judge asked: “Would your view * * *
prevent or substantially impair your finding the defendant guilty if the evidence and
the law so warrant it because the death penalty could be imposed?” Stafford said:
“I don’t know * * * [.] I have never been tested.” Asked whether he could follow
the law if that entailed recommending death, Stafford said it would be “difficult.”
{¶ 33} After defense counsel examined Stafford, Stafford said, “I think I
can follow the Court’s instructions.” However, the judge then asked: “Would your
present views * * * prevent or substantially impair your finding the defendant guilty
if the evidence and the law so warranted because the death penalty could be
imposed?” Stafford replied: “[I]t seems like the answer should be yes. It seems to
me that my answer should be yes.” (Emphasis added.)
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{¶ 34} Later, Stafford appeared to contradict his earlier statements: “I am
really struggling with that * * *. I am going to say that—yes, yes, I can do that.”
The trial judge noted Stafford’s indecisiveness and found that Stafford’s views
would “substantially impair his ability to render a fair and impartial judgment.”
{¶ 35} The record supports this finding. Stafford’s voir dire reflects a
sincere, conscientious citizen, but one who agonized over whether he could follow
the law if it conflicted with his strong ethical beliefs opposing the death penalty.
Most important, when asked whether his views would prevent or substantially
impair his ability to find White guilty if the evidence and law so warranted, Stafford
appeared to say “yes.”
{¶ 36} White argues that Stafford’s “clear conclusion” was that he could
follow the law. But when a prospective juror makes what appear to be contradictory
statements on voir dire, as Stafford did, it is for the trial court to decide which
statements to believe. The issue is not conclusively determined by whatever the
prospective juror happens to say last. See, e.g., State v. Scott (1986), 26 Ohio St.3d
92, 97-98, 26 OBR 79, 83-84, 497 N.E.2d 55, 60-61.
{¶ 37} Stafford apparently admitted that his views could prevent or impair
his finding defendant guilty, even if the evidence and the law so warranted. Basing
its ruling on Stafford’s demeanor, as well as his words, the trial court found that
Stafford’s views would substantially impair his ability to render a fair, impartial
verdict.
{¶ 38} A reviewing court must defer to the trial court’s findings regarding
bias if the record fairly supports those findings. State v. Wilson (1972), 29 Ohio
St.2d 203, 211, 58 O.O.2d 409, 414, 280 N.E.2d 915, 920. On this record, we can
see no basis to second-guess the trial court’s finding as to Stafford. We therefore
overrule defendant’s sixth proposition of law.
III. PROSECUTORIAL MISCONDUCT
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{¶ 39} Michael Thorpe testified for the state in the guilt phase, with
Assistant Prosecuting Attorney Michael E. Carroll conducting his direct
examination. As Thorpe testified, Carroll’s co-counsel, Assistant Prosecuting
Attorney Alison E. McCarty, wept. According to defense counsel, McCarty
“[cried] for 30 seconds to a minute” and had “tears running down her face.”
Defense counsel believed that “at least a couple of the jurors [were] watching her
cry.” After Michael Thorpe left the stand, the defense moved for a mistrial because
of McCarty’s behavior. The trial court overruled the motion.
{¶ 40} In his eighth proposition of law, defendant contends that McCarty’s
weeping in front of the jury required a mistrial. Defendant cites State v. Morales
(1987), 32 Ohio St.3d 252, 513 N.E.2d 267, a case involving a spectator’s
emotional outburst. However, Morales lends no support to defendant’s position.
Morales holds that whether an emotional outburst improperly influences the jury
against the accused is a factual question to be resolved by the trial court, whose
determination will not be overturned absent clear, affirmative evidence of error.
Id., 32 Ohio St.3d at 255, 513 N.E.2d at 271, quoting State v. Bradley (1965), 3
Ohio St.2d 38, 32 O.O.2d 21, 209 N.E.2d 215, syllabus. See, also, State v. Bailey
(1982), 132 Ariz. 472, 477, 647 P.2d 170, 175 (reviewing court deferred to trial
court’s finding that prosecutor’s weeping did not affect jury).
{¶ 41} But defendant argues that no deference is owed here because the trial
judge could not see the jury. During discussion of the mistrial motion, the judge
did indeed state that the courtroom was set up in such a way that she could not “see
the expressions of the jury.” (We note, however, that the record does not support
defendant’s more extravagant claim that the jurors were sitting “in front of the judge
with their backs to the Court.”) But even though the judge could not see the jurors’
expressions, she was still better positioned to perceive their reactions than any
reviewing court could ever be. Consequently, deference remains appropriate.
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{¶ 42} Other courts have not automatically reversed convictions solely
because a prosecutor wept in the jury’s presence. Where the weeping was not
shown to have affected the jury, convictions have been allowed to stand. See
Bailey; Gibbins v. State (1997), 229 Ga.App. 896, 901, 495 S.E.2d 46, 51. Cf.
People v. Dukes (1957), 12 Ill.2d 334, 341-343, 146 N.E.2d 14, 17-18 (reversing
conviction where prosecutor wept and engaged in other misconduct that
deliberately exploited jury’s emotions).
{¶ 43} We certainly cannot condone a prosecutor’s weeping in open court.
The prosecutor, as the representative of the state, ought to exercise self-control and
has a professional obligation to refrain from creating prejudice against the
defendant. However, as suggested by defense counsel’s allegation that at least four
of the spectators in the court room were crying, as well, “any capital trial generates
strong emotions. * * * Realism compels us to recognize that criminal trials cannot
be squeezed dry of all feeling.” State v. Keenan (1993), 66 Ohio St.3d 402, 408-
409, 613 N.E.2d 203, 208-209.
{¶ 44} In this case, we see no indication of a deliberate, sustained attempt
to manipulate and inflame the jury’s emotions, such as what occurred in Keenan
and Dukes. Thus, the question here is simply what effect the prosecutor’s tears had
on the jury. Nothing in the record shows clearly and affirmatively that McCarty’s
tears had any effect. We therefore lack a basis to find that the trial court abused its
discretion when it denied defendant’s mistrial motion. Accordingly, defendant’s
eighth proposition is overruled.
IV. “OTHER ACTS” EVIDENCE
{¶ 45} In his ninth proposition of law, defendant contends that the state
violated Evid.R. 404(B) (governing “other acts” evidence) by introducing Heather
Kawczk’s testimony that defendant sometimes struck her during their relationship.
{¶ 46} Kawczk testified that defendant sometimes “smacked” her when he
was angry. This happened “a couple times” before she moved in with him and
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became “a little bit more frequent” after that. The prosecutor stated that he offered
this testimony to show motive and to explain “the defendant’s relationship with
Heather, which we feel is the primary triggering factor in the [murders].” The state
never argued that defendant’s behavior showed his bad character or propensity for
violence.
{¶ 47} Defendant nevertheless claims that the testimony was relevant only
to show his bad character. We disagree. Defendant’s beating Kawczk tends to
show his jealousy and resulting rage toward her, emotions that gave defendant a
strong motive to kill her mother and boyfriend. Moreover, the beatings explain
why Kawczk left defendant and refused to go to his apartment, which in turn
explains why Julie Schrey and Deborah Thorpe were there instead. Thus, the
evidence was relevant for purposes other than showing bad character. Accordingly,
defendant’s ninth proposition is overruled.
V. VICTIM IMPACT
{¶ 48} In his twelfth proposition of law, defendant contends that the state
introduced impermissible victim-impact evidence. Defendant was convicted of a
capital crime with respect to Deborah Thorpe’s murder only. However, in the
penalty phase, in addition to calling witnesses to testify about the impact of
Deborah Thorpe’s murder, the state called Julie Schrey’s widower, Dennis Schrey,
to tell how Julie Schrey’s murder had affected him. Also, Michael Thorpe’s
brother, Robert Thorpe, told how Michael Thorpe’s injuries had affected the Thorpe
family.
{¶ 49} For the reasons that follow, we hold that the victim-impact testimony
by Dennis Schrey, and the victim-impact testimony by Robert Thorpe concerning
Michael’s injuries, were improperly admitted. Nevertheless, admission of this
evidence was harmless error.
Historical Perspective
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{¶ 50} Historically, victims’ participation in the American criminal justice
system has been narrowly limited. Although the victim is the party who is harmed,
the crime is considered as having been committed against the state, and the state is
responsible for prosecuting the defendant on behalf of the people and ensuring that
the sentence against the defendant is carried out. Some victims contend that the
criminal process excludes them, even treats them as merely another piece of
evidence, thereby victimizing them a second time.2
{¶ 51} Victims’ dissatisfaction with the criminal justice system’s focus on
the defendant contributed to the growth of victims’ rights organizations. In 1984,
there were approximately 2,000 government and private victim assistance
organizations. By 1991, there were over 7,000.3 After restitution programs and
victim-witness assistance programs were established, the victims’ rights movement
sought to allow victims to participate in the sentencing phase of capital trials via
victim-impact evidence.4
2. See Note, The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings
(1992), 45 Vand.L.Rev. 1621, 1624.
3. Bartolo, Payne v. Tennessee: The Future Role of Victim Statements of Opinion in Capital
Sentencing Proceedings (1992), 77 Iowa L.Rev. 1217, 1217-1218.
4. See Note, The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings
(1992), 45 Vand.L.Rev. 1621, 1624-1629.
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United States Supreme Court Jurisprudence
{¶ 52} In Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115
L.Ed.2d 720, the United States Supreme Court reconsidered its previous rejection
of victim-impact evidence. A jury convicted the defendant of two counts of first-
degree murder and one count of assault with intent to commit first-degree murder.
The defendant was sentenced to death for each of the murders and to thirty years in
prison for the assault. Payne’s victims were twenty-eight-year-old Charisse
Christopher, her two-year-old daughter, Lacie, and her three-year-old son,
Nicholas, who survived the attack.
{¶ 53} During the sentencing phase, the defendant presented the testimony
of four witnesses: his mother and father, a friend, and a clinical psychologist. The
state presented the testimony of Charisse Christopher’s mother. When asked how
Nicholas had been affected by the murders of his mother and sister, she responded:
“ ‘He cries for his mom. He doesn’t seem to understand why she doesn’t come
home. And he cries for his sister Lacie. He comes to me many times during the
week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He
says, I’m worried about my Lacie.’ “ Id. at 814-815, 111 S.Ct. at 2603, 115 L.Ed.2d
at 728. In addition, the prosecutor, in closing argument at the penalty stage, recited
again the injuries to Nicholas, the noncapital victim. “But we do know that
Nicholas was alive. And Nicholas was in the same room. Nicholas was still
conscious. His eyes were open. He responded to the paramedics. He was able to
follow their directions. He was able to hold his intestines in as he was carried to
the ambulance.” Payne, 501 U.S. at 815, 111 S.Ct. at 2603, 115 L.Ed.2d at 728-
729. The prosecutor concluded, “There is obviously nothing you can do for
Charisse and Lacie Jo. But there is something that you can do for Nicholas.” Id.
at 815, 111 S.Ct. at 2603, 115 L.Ed.2d at 729. The jury imposed the death penalty.
{¶ 54} The court stated that a misreading of its previous holdings had
“unfairly weighted the scales in a capital trial; while virtually no limits are placed
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on the relevant mitigating evidence a capital defendant may introduce concerning
his own circumstances, the State is barred from either offering ‘a quick glimpse of
the life’ which a defendant ‘chose to extinguish’ * * *, or demonstrating the loss to
the victim’s family and to society which has resulted from the defendant’s
homicide.” (Citation omitted.) Id., 501 U.S. at 822, 111 S.Ct. at 2607, 115 L.Ed.2d
at 733.
{¶ 55} The court held that “for the jury to assess meaningfully the
defendant’s moral culpability and blameworthiness, it should have before it at the
sentencing phase evidence of the specific harm caused by the defendant.”
(Emphasis added.) Id., 501 U.S. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735.
“ ‘It is an affront to the civilized members of the human race to say that at
sentencing in a capital case, a parade of witnesses may praise the background,
character and good deeds of Defendant * * * without limitation as to relevancy, but
nothing may be said that bears upon the character of, or the harm imposed, upon
the victims.’ “ Id., 501 U.S. at 826, 111 S.Ct. at 2609, 115 L.Ed.2d at 736, quoting
the state Supreme Court decision, State v. Payne (Tenn.1990), 791 S.W.2d 10, 19.
{¶ 56} Accordingly, the court held that “if the State chooses to permit the
admission of victim impact evidence and prosecutorial argument on that subject,
the Eighth Amendment erects no per se bar. A State may legitimately conclude
that evidence about the victim and about the impact of the murder on the victim’s
family is relevant to the jury’s decision as to whether or not the death penalty should
be imposed. There is no reason to treat such evidence differently than other relevant
evidence is treated.” Payne, 501 U.S. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at
736.
{¶ 57} Justice Souter’s concurrence mirrored Justice O’Connor’s
concurring comments: “Murder has foreseeable consequences. When it happens,
it is always to distinct individuals, and, after it happens, other victims are left
behind. Every defendant knows, if endowed with the mental competence for
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criminal responsibility, that the life he will take by his homicidal behavior is that
of a unique person, like himself, and that the person to be killed probably has close
associates, ‘survivors,’ who will suffer harms and deprivations from the victim’s
death. Just as defendants know that they are not faceless human ciphers, they know
that their victims are not valueless fungibles; and just as defendants appreciate the
web of relationships and dependencies in which they live, they know that their
victims are not human islands, but individuals with parents or children, spouses or
friends or dependents. Thus, when a defendant chooses to kill, or to raise the risk
of a victim’s death, this choice necessarily relates to a whole human being and
threatens an association of others, who may be distinctly hurt.” Id. at 838, 111 S.Ct.
at 2615-2616, 115 L.Ed.2d at 744.
Ohio’s Victims’ Rights Act
{¶ 58} Since Payne, at least thirty-two of the thirty-eight states that impose
the death penalty have incorporated victim-impact statements into their capital
sentencing proceedings.5 On November 8, 1994, Section 10a, Article I of the Ohio
Constitution was adopted to grant crime victims the right to a meaningful role in
the criminal justice process.6 Proponents of this section “pointed out that while
[Section] 10, Article I of the Ohio Constitution was adopted to protect the rights of
persons accused of crime, there was no corresponding section in the Constitution
to protect the rights of victims of crime, and adoption of this section was thus ‘a
5. See Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in
Capital Sentencing (1997), 35 Am.Crim.L.Rev. 93, 99–101.
6. Section 10a, Article I of the Ohio Constitution provides: “Victims of criminal offenses shall be
accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly
shall define and provide by law, shall be accorded rights to reasonable and appropriate notice,
information, access, and protection and to a meaningful role in the criminal justice process. This
section does not confer upon any person a right to appeal or modify any decision in a criminal
proceeding, does not abridge any other right guaranteed by the Constitution of the United States or
this constitution, and does not create any cause of action for compensation or damages against the
state, any political subdivision of the state, any officer, employee, or agent of the state or of any
political subdivision, or any officer of the court.”
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question of balance.’ ” 1994 Editor’s Comment, Section 10a, Article I, Ohio
Constitution, Baldwin’s Ohio Revised Code.
{¶ 59} To that end, prior to the effective date of the constitutional
amendment, the General Assembly enacted the Victims’ Rights Act on May 26,
1994, which became effective on October 12, 1994. 145 Ohio Laws, Part II, 2085.
The Act amended victims’ rights law, repealed other sections of the Revised Code,
and enacted R.C. Chapter 2930. R.C. Chapter 2930 includes provisions entitling
victims to make a written or oral statement to the court regarding the impact of the
crime on their lives, requiring the court to consider the victim-impact statement in
determining the sentence to be imposed, and providing the victim the opportunity
to make a statement to the court before sentencing. See former R.C. 2930.13,
2930.14, 2947.051, and 2929.19.
{¶ 60} In addition to enacting R.C. Chapter 2930, the General Assembly
repealed former R.C. 2943.041 and 2945.07, which expressly excluded victim-
impact evidence from capital cases. The newly enacted provisions in R.C. Chapter
2930, as well as related sections of the code, no longer contain this express
exclusion. However, the new statutory scheme is silent as to how victim-impact
evidence may be presented to juries in capital cases. Although the court has
recognized situations where such evidence may be properly presented to a jury, the
statutes only address the presentation of such evidence to the courts. Thus, the
General Assembly has yet to expand victim-impact evidence in capital cases to the
extent allowed in Payne.
Ohio Jurisprudence
{¶ 61} However, since the constitutional amendment and the Victims’
Rights Act, this court has had an opportunity to address the issue of victim-impact
evidence in capital cases a number of times. This court permitted a jury to review
victim-impact evidence in State v. Fautenberry (1995), 72 Ohio St.3d 435, 440,
650 N.E.2d 878, 883, where the court found that “evidence which depicts both the
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circumstances surrounding the commission of the murder and also the impact of
the murder on the victim’s family may be admissible during both the guilt and
sentencing phases.” (Emphasis sic.) Id. at 440, 650 N.E.2d at 882-883.
{¶ 62} Later, in State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d
311, this court noted that R.C. 2929.03(D)(1) provides that “in making a
determination whether a death sentence should be imposed, ‘[t]he court, and the
trial jury if the offender was tried by a jury, shall consider * * * any evidence raised
at trial that is relevant to the aggravating circumstances the offender was found
guilty of committing or to any factors in mitigation of the imposition of the sentence
of death, shall hear testimony and other evidence that is relevant to the nature and
circumstances of the aggravating circumstances the offender was found guilty of
committing, the mitigating factors set forth in division (B) of section 2929.04 of the
Revised Code, and any other factors in mitigation of the imposition of the sentence
of death, and shall hear the statement, if any, of the offender, and the arguments, if
any, of counsel for the defense and prosecution, that are relevant to the penalty that
should be imposed on the offender.’ (Emphasis added.)” Id. at 352-353, 662 N.E.2d
at 319.
{¶ 63} As recently as last year, this court held that “in attempting to refute
or rebut the mitigating evidence offered, relevant victim-impact evidence is
permissible other evidence pursuant to R.C. 2929.03(D)(2).” (Emphasis sic.) State
v. McNeill (1998), 83 Ohio St.3d 438, 446, 700 N.E.2d 596, 606. In addition,
victim-impact evidence may be admitted through a presentence investigation report
should the defendant request one. See R.C. 2929.03(D)(1).
{¶ 64} Thus, this court has held that capital sentencing juries are permitted
to review victim-impact evidence if the evidence is relevant to the circumstances
of the murder, the existence of the statutory aggravating circumstances that permit
the death penalty, and the nature and circumstances of the statutory aggravating
circumstances, if the evidence is introduced to attempt to refute or rebut the
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mitigating evidence offered, or if the defendant requests a presentence investigation
report.
{¶ 65} In capital cases, since the victim is deceased, the “victim” would be
the victim’s representative who would be permitted to speak on behalf of the victim
pursuant to R.C. 2930.02. It is important to note that the defendant does not
challenge the portion of Robert Thorpe’s testimony that relates to the impact from
the death of his mother, Deborah Thorpe, the capital victim.
{¶ 66} However, the defendant challenges the testimony that related to the
impact on the noncapital victims, Julie Schrey and Michael Thorpe. That testimony
should not have been permitted under Ohio’s statutory framework. A review of
Ohio’s statutory framework on victim-impact evidence indicates that testimony
relating to noncapital victims is currently to be presented only to judges, who are
charged with the responsibility of sentencing in noncapital cases.
{¶ 67} For example, former R.C. 2930.13 provides for the victim to make a
written or oral statement to the judge. Further, former R.C. 2930.14 allows the
victim to make a statement prior to sentencing. It provides: “(A) Before imposing
sentence upon the defendant for the commission of a crime, the court shall permit
the victim of the crime to make a statement concerning the effects of the crime upon
the victim, the circumstances surrounding the crime, and the manner in which the
crime was perpetrated. At the judge’s option, the victim may present the statement
in writing prior to the sentencing hearing, orally at the hearing, or both. (B) The
court shall consider the victim’s statement along with other factors that the court is
required to consider in imposing sentence.” (Emphasis added.) R.C. 2930.14(A)
and (B).
{¶ 68} In this case, the victim-impact evidence at issue related to noncapital
crimes for which the judge alone bore the responsibility for sentencing. Dennis
Schrey (widower of Julie Schrey, the noncapital crime victim) testified about the
impact of his wife’s death. Further, Robert Thorpe (son of Deborah Thorpe, the
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capital-crime victim, and brother of Michael Thorpe, the attempted-murder victim),
in addition to testifying about his mother’s death, testified about the effects of
Michael Thorpe’s injuries on the family.
{¶ 69} While Dennis Schrey (a representative of victim Julie Schrey) and
Robert Thorpe (a relative of Michael Thorpe) were clearly representatives of
victims, they were not testifying about the impact of the capital crime, i.e., on
behalf of the capital victim, Deborah Thorpe, pursuant to R.C. 2930.14. Because
this evidence was unrelated to the capital murder for which the defendant was to
be sentenced, it was improperly admitted. Such testimony was admissible only for
the judge alone to hear, as it related to sentencing on the two noncapital crimes.
{¶ 70} However, while admission of this evidence violated Ohio’s statutory
scheme, it was not a constitutional violation. Payne clearly allows the presentation
of victim-impact testimony to a capital jury if a “State chooses to permit” such
testimony. Payne, 501 U.S. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. Payne
clearly allows such testimony when the crimes are so interrelated that victims are
affected by more than just the capital death. Payne does not limit the “evidence of
the specific harm” caused by the defendant to the capital victim’s family only, but
allows the jury to assess the “defendant’s moral culpability and blameworthiness”
by victim-impact “evidence of a general type long considered by sentencing
authorities.” Id., 501 U.S. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. However,
Ohio’s statutory provisions as yet make no such specific provision for such
noncapital victim-impact testimony to be presented to a jury in a capital case.
Therefore, the admission of the evidence in question was, at most, a statutory
violation.
{¶ 71} Further, there was more than ample evidence to support the jury’s
determination that the aggravating circumstances outweighed the mitigating factors
beyond a reasonable doubt. As such, we find the error to be harmless. See McNeill,
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83 Ohio St.3d at 447, 700 N.E.2d at 606, quoting State v. Webb (1994), 70 Ohio
St.3d 325, 335, 638 N.E.2d 1023, 1032.
{¶ 72} Accordingly, defendant’s twelfth proposition of law is overruled.
VI. EXCLUSION OF MITIGATION
{¶ 73} In the penalty phase, the defense called as an expert witness
Lawrence J. Whitney, an attorney experienced in capital cases. Whitney was called
to testify about the total minimum time that defendant, if sentenced to life
imprisonment, would have to serve before parole eligibility, including the time that
he would serve on the firearm specifications attached to each of the three counts of
the indictment.
{¶ 74} According to the defense proffer, Whitney would have testified that
the law would require defendant to serve at least twenty-nine or thirty-nine full
years’ incarceration before becoming eligible for parole. This would consist of
twenty or thirty full years on the aggravated murder, pursuant to R.C. 2929.04(A),
plus three years’ actual incarceration for each of the three firearm specifications,
all of which would run consecutive to the life sentence and to each other (see former
R.C. 2929.71[B]).
{¶ 75} Subsequently, the defense amended its proffer to reflect that the trial
court might (as it ultimately did) merge the firearm specifications attached to the
Day Street apartment shootings, requiring defendant to serve only twenty-six or
thirty-six full years before parole eligibility.
{¶ 76} However, the prosecution objected to any testimony about how the
firearm specifications would affect defendant’s parole eligibility, arguing that the
specifications were not a mitigating factor. The trial court sustained this objection.
Accordingly, Whitney was permitted to explain the meaning of “full” years of
incarceration but not to testify on the firearm specifications.
{¶ 77} In his fourteenth proposition of law, defendant contends that the
exclusion of testimony regarding the firearm specifications’ effect on the total
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sentence denied him the right to present relevant mitigating evidence, thereby
contravening the Eighth Amendment. See, e.g., Eddings v. Oklahoma (1982), 455
U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1. Defendant also contends that the exclusion
was fundamentally unfair, thus raising a due process question. See Simmons v.
South Carolina (1994), 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133. We deal
first with the Eighth Amendment claim.
{¶ 78} In Eighth Amendment jurisprudence, mitigating factors are facts
about the defendant’s character, background, or record, or the circumstances of the
offense, that may call for a penalty less than death. See Franklin v. Lynaugh (1988),
487 U.S. 164, 174, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155, 166 (plurality opinion),
and id. at 188, 108 S.Ct. at 2335, 101 L.Ed.2d at 175 (O’Connor, J., concurring).
{¶ 79} The length of incarceration to be served by the defendant before
parole eligibility is not a fact about the defendant’s character or background, or
about the circumstances of the offense. See O’Dell v. Netherland (1997), 521 U.S.
151, 162-168, 117 S.Ct. 1969, 1976-1977, 138 L.Ed.2d 351, 362-364
(distinguishing between information about the defendant and information about
parole); Smith v. State (Tex.Crim.App.1995), 898 S.W.2d 838, 853. Thus, it is not
a mitigating factor for Eighth Amendment purposes.
{¶ 80} We turn, then, to the due process issue. Simmons v. South Carolina
holds that in a capital case, “where the defendant’s future dangerousness is at issue,
and state law prohibits the defendant’s release on parole, due process requires that
the sentencing jury be informed that the defendant is parole ineligible.” Id., 512
U.S. at 156, 114 S.Ct. at 2190, 129 L.Ed.2d at 138 (plurality opinion); see, also, id.,
512 U.S. at 178, 114 S.Ct. at 2201, 129 L.Ed.2d at 150-151 (O’Connor, J.,
concurring).
{¶ 81} Some courts have extended Simmons to require that the jury be given
complete information on parole eligibility. See Clark v. Tansy (1994), 118 N.M.
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486, 492, 882 P.2d 527, 533; State v. Martini (1993), 131 N.J. 176, 312-313, 619
A.2d 1208, 1280. Defendant asks us to do likewise.
{¶ 82} We cannot read Simmons so broadly. In Simmons, life without
parole was the sole alternative to death—a point stressed by the concurring justices
who cast the deciding votes in that case. See 512 U.S. at 176, 114 S.Ct. at 2200-
2201, 129 L.Ed.2d at 150-151 (O’Connor, J., concurring). In the case at bar, life
without parole was not an alternative at all. Thus, the jury was not given a “false
choice between sentencing [defendant] to death and sentencing him to a limited
period of incarceration.” (Emphasis added.) Simmons, 512 U.S. at 161, 114 S.Ct.
at 2193, 129 L.Ed.2d at 141. The choice before the jury was, in fact, between
sentencing White to death and sentencing him to life with the possibility of parole.
In these circumstances, Simmons does not apply. See Muniz v. Johnson (C.A.5,
1998), 132 F.3d 214, 224; State v. Bush (Tenn.1997), 942 S.W.2d 489, 503; Smith
v. State, 898 S.W.2d at 850.
{¶ 83} Moreover, the prosecutor in Simmons “relie[d] on a prediction of
future dangerousness in requesting the death penalty.” 512 U.S. at 164, 114 S.Ct.
at 2194, 129 L.Ed.2d at 143. In the case at bar, the state did not argue future
dangerousness—a crucial distinction, since Simmons rests on the principle that a
capital defendant may not be sentenced to death “ ‘on the basis of information
which he had no opportunity to deny or explain.’ ” Id. at 164, 114 S.Ct. at 2194,
129 L.Ed.2d at 143, quoting Gardner v. Florida (1977), 430 U.S. 349, 362, 97 S.Ct.
1197, 1207, 51 L.Ed.2d 393, 404. What Simmons affords is a “narrow right of
rebuttal * * * in a limited class of capital cases.” (Emphasis added.) O’Dell, 521
U.S. at 167, 117 S.Ct. at 1978, 138 L.Ed.2d at 365. Here, defendant was not seeking
to rebut an argument on future dangerousness. Again, Simmons does not apply.
{¶ 84} We conclude that the trial court neither violated the Eighth
Amendment nor deprived defendant of due process by excluding information about
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the effect of the firearm specification on his parole eligibility. Accordingly,
defendant’s fourteenth proposition is overruled.
VII. SENTENCING OPINION
{¶ 85} R.C. 2929.03(F) requires the trial court’s sentencing opinion to be
filed with the clerk of this court within fifteen days after imposition of sentence.
Because defendant was sentenced on October 31, 1996, the opinion should have
been filed here by November 15. This was not done, however, until January 22,
1997, when the entire record (including the sentencing opinion) was filed with the
clerk. In his seventh proposition of law, defendant contends that this invalidates
his death sentence. But we do not see, and defendant does not explain, how the
late filing could have prejudiced him. Hence, we find the error harmless and
overrule defendant’s seventh proposition.
{¶ 86} In his seventeenth proposition, defendant attacks the trial court’s
sentencing opinion. Defendant claims the trial court discounted his low intelligence
as a mitigating factor because it did not meet the legal test for insanity. Cf. Eddings
v. Oklahoma. However, nothing in either the sentencing opinion or the trial judge’s
remarks from the bench suggests that the trial court applied an insanity standard to
the proffered mitigation.
{¶ 87} The sentencing opinion also noted that defendant’s sister, raised in
the same environment as defendant, was “a responsible adult” pursuing a college
education, and the trial judge stated at the sentencing hearing that “[m]any members
of our society have low intelligence and have been raised in circumstances similar
to your own [and] they do not * * * deliberately kill.” Defendant argues that these
comparisons “denied [him] an individualized sentencing determination.” However,
“[t]he requirement of individualized sentencing in capital cases is satisfied by
allowing the [sentencer] to consider all relevant mitigating evidence.” Blystone v.
Pennsylvania (1990), 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255,
264. Both the jury and judge considered defendant’s mitigating evidence.
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{¶ 88} Accordingly, defendant’s seventeenth proposition is overruled.
VIII. INEFFECTIVE ASSISTANCE
{¶ 89} In his tenth proposition of law, defendant claims ineffective
assistance of trial counsel. To prevail, he must show (1) that counsel performed so
deficiently that they were not functioning as the “counsel” guaranteed by the Sixth
Amendment and (2) that counsel’s errors were prejudicial. Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.
Performance is “deficient” when it falls below an objective standard of reasonable
representation. Id. at 690-691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695-696.
“Prejudice” means a reasonable probability that, but for counsel’s errors, the result
of the proceeding would have been different; “[a] reasonable probability is a
probability sufficient to undermine [the court’s] confidence in the outcome.” Id. at
694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. See, generally, State v. Bradley (1989),
42 Ohio St.3d 136, 142-143, 538 N.E.2d 373, 379-381, and paragraphs two and
three of the syllabus. (Contrary to the state’s claim, the defendant need not show
that, but for the error, the trial would have come out differently. Strickland, 466
U.S. at 693-694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697.)
{¶ 90} Defendant argues that counsel should have objected when the trial
court excluded prospective juror Donald C. Burgess for cause due to his beliefs
about capital punishment. However, the trial court had a strong basis to excuse
Burgess, who repeatedly said that he did not know whether he could vote to impose
the death penalty if the law so required. On these facts, and given the strong
deference owed to the trial court’s resolution of challenges for cause, see State v.
Wilson, it was reasonable for counsel not to object.
{¶ 91} Defendant also complains that his counsel did not attempt to
“educate or rehabilitate” Burgess on the death penalty in order to keep him on the
panel. But defendant’s argument assumes that Burgess was a desirable juror for
the defense. The record does not show that, and we decline to speculate on the
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matter. For all we know, counsel may have welcomed Burgess’s excusal for some
reason unrelated to his death-penalty views. Cf. Wainwright v. Witt, supra, 469
U.S. at 437-438, 105 S.Ct. at 859, 83 L.Ed.2d at 860 (Stevens, J., concurring). Trial
counsel is in a better position than we are to decide whether a juror can or should
be rehabilitated. Bradley, 42 Ohio St.3d at 143, 538 N.E.2d at 381.
{¶ 92} At defendant’s arraignment on January 23, 1996, defendant’s
counsel entered on his behalf a plea of not guilty by reason of insanity and also
requested an evaluation of defendant’s competence to stand trial. Defendant was
examined by psychologist Dr. Yossef Ben-Porath. After receiving the results of
this evaluation, the defense withdrew the insanity plea. After defendant was
convicted, the defense called Dr. James Eisenberg to testify in the penalty phase
regarding defendant’s mental condition. The state called Dr. Ben-Porath to rebut
Dr. Eisenberg’s testimony.
{¶ 93} Defendant contends that his counsel should have requested expert
assistance pursuant to R.C. 2929.024 rather than a mental evaluation under R.C.
2945.37. Had counsel done so, defendant argues, “they could have retained control
over the content and presentation of their penalty case.” See Glenn v. Tate (C.A.6,
1995), 71 F.3d 1204.
{¶ 94} However, pursuant to former R.C. 2945.371(A) and 2945.39(A),
defendant’s counsel had no choice regarding a mental evaluation. Former R.C.
2945.371(A) provided: “If the issue of a defendant’s competence to stand trial is
raised under section 2945.37 of the Revised Code, the court may order one or more,
but not more than three evaluations of the defendant’s mental condition.”
(Emphasis added.) 138 Ohio Laws, Part II, 4209. Similarly, former R.C.
2945.39(A) provided: “If a defendant enters a plea of not guilty by reason of
insanity, the court may order one or more, but not more than three, evaluations of
the defendant’s mental condition at the time of the commission of the offense.” 143
Ohio Laws, Part III, 5352. Thus, once counsel had raised the issue of sanity and
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competence, they could not have blocked the evaluations. (White makes no claim
that counsel’s decision to raise the sanity and competence issues itself constituted
ineffective assistance.)
{¶ 95} Defendant also contends that defense counsel should have invoked
former R.C. 2945.38(J) and former R.C. 2945.39(D), presumably to prevent Dr.
Ben-Porath from testifying against him in the penalty case. Former R.C. 2945.38(J)
provided: “No statement made by a defendant in an examination * * * relating to
[his] competence to stand trial shall be used in evidence against [him] on the issue
of guilt * * * .” 142 Ohio Laws, Part I, 760. Former R.C. 2945.39(D) provided:
“No statement made by a defendant in an examination * * * relating to his mental
condition at the time of the commission of an offense shall be used in evidence
against him on the issue of guilt * * * .” 143 Ohio Laws, Part III, 5353. Defendant
appears to contend that his counsel should have invoked these statutes to prevent
Dr. Ben-Porath from testifying against him in the penalty phase.
{¶ 96} In fact, however, defendant’s counsel did attempt to block Dr. Ben-
Porath’s testimony. Before the penalty phase, counsel filed a motion in limine
asking that the state be precluded from using Dr. Ben-Porath’s testimony or report
“on rebuttal or for any other purpose” in the penalty phase, on the ground that the
evaluations “were for the purposes of competency and sanity evaluation only” and
“not * * * for the purpose of rebutting defense psychological testimony at the
penalty phase.” The trial court denied the motion on authority of State v. Cooey
(1989), 46 Ohio St.3d 20, 544 N.E.2d 895. Since defendant’s counsel tried to have
Dr. Ben-Porath’s testimony excluded, there is no factual foundation for defendant’s
claim of attorney neglect.
{¶ 97} Defendant argues that his counsel were ineffective because certain
discussions between the court and counsel, concerning “the order of proceedings”
with regard to victim-impact testimony, are not in the record. However, defendant
does not explain how this omission was prejudicial.
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{¶ 98} Defendant claims that his trial counsel “failed to request the lesser
instruction [sic] at both the trial and the penalty phases.” This assertion is too vague
to permit analysis.
{¶ 99} Defendant complains that trial counsel did not object to the
instructions’ “defective” definition of “reasonable doubt.” But that definition is
sanctioned by our precedents, on which counsel could reasonably rely. See State
v. Nabozny (1978), 54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E.2d 784; State v. Van
Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604. Finally, defendant complains
that his counsel “failed to request an instruction on victim impact.” However,
defendant does not say what instruction he thinks counsel should have requested.
Thus, we are unable to find either defective performance or prejudice.
{¶ 100} None of defendant’s claims establishes ineffective assistance.
Accordingly, defendant’s tenth proposition is overruled.
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IX. SETTLED ISSUES
{¶ 101} Defendant’s thirteenth and fifteenth propositions of law raise issues
pertaining to the jury instructions. Defendant neither objected to the instructions at
issue nor submitted his own proposed instructions under Crim.R. 30(A). These
issues are waived. Defendant’s thirteenth and fifteenth propositions are therefore
overruled.
{¶ 102} In his second, third, fourth, eleventh, and sixteenth propositions of
law, defendant reargues settled issues. Defendant’s second, fourth, and sixteenth
propositions are foreclosed by, e.g., State v. Jenkins (1984), 15 Ohio St.3d 164,
167-174, 210-211, 15 OBR 311, 314-319, 350-352, 473 N.E.2d 264, 272-277, 304-
305, and paragraphs one and eight of the syllabus; State v. Buell (1986), 22 Ohio
St.3d 124, 137-138, 22 OBR 203, 214-215, 489 N.E.2d 795, 807-808; State v.
Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of
the syllabus; State v. Esparza (1988), 39 Ohio St.3d 8, 9-10, 529 N.E.2d 192, 194-
195; State v. Phillips (1995), 74 Ohio St.3d 72, 103-104, 656 N.E.2d 643, 671.
Defendant’s third proposition is foreclosed by State v. Gumm (1995), 73 Ohio St.3d
413, 417-418, 653 N.E.2d 253, 259-260; his eleventh by Phillips, 74 Ohio St.3d at
101, 653 N.E.2d at 669; and his thirteenth by Nabozny and Van Gundy. These
propositions are summarily overruled. See, generally, State v. Poindexter (1988),
36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.
X. INDEPENDENT REVIEW
{¶ 103} Having overruled defendant’s propositions of law, we must now
independently determine whether the evidence supports the jury’s finding of
aggravating circumstances, whether those aggravating circumstances outweigh the
mitigating factors beyond a reasonable doubt, and whether the death sentence in
this case is proportionate to sentences in similar cases. R.C. 2929.05(A).
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Aggravating Circumstances
{¶ 104} Defendant was convicted of two aggravating circumstances in
connection with Deborah Thorpe’s murder: a course of conduct involving two or
more purposeful killings or attempts to kill (R.C. 2929.04[A][5]), and murder to
escape detection, apprehension, trial, or punishment for another crime (R.C.
2929.04[A][3]). The evidence supports these aggravating circumstances.
{¶ 105} With respect to the course-of-conduct specification, defendant
admitted the three shootings, and the evidence shows that all three were committed
with the purpose to kill. The physical evidence did not support defendant’s claim
that Julie Schrey struggled with him over the gun. The chief deputy coroner who
examined the bodies concluded that Schrey was shot from two to four feet away.
The slug that killed Schrey entered through the back of her right wrist, and police
found a broken lighter and a singed cigarette near her body, all of which suggests
that she was lighting a cigarette when defendant shot her. Finally, the gun’s 7.5-
pound trigger pull makes it unlikely that it just “went off,” as defendant claimed.
{¶ 106} Defendant admitted to Detective McCain that he killed Deborah
Thorpe for a reason, and hence purposefully: he said he did it because “he didn’t
want [Deborah Thorpe] to have to live with * * * seeing her friend killed.” (This
may not have been defendant’s real reason for killing Deborah Thorpe; after all, the
jury found that defendant killed her to escape detection, apprehension, trial, or
conviction for another offense. The point here, however, is simply that defendant
admitted that his purpose was to kill Deborah Thorpe.)
{¶ 107} Other evidence confirms defendant’s purpose to kill Deborah
Thorpe. Defendant had to pump the shotgun to eject the spent cartridge and reload
the chamber. Moreover, the physical evidence indicates that he fired at Deborah
Thorpe twice. A slug went through the front window; from this one may infer that
defendant fired that shot at Deborah Thorpe, who was running for the door, and had
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just reached it when defendant shot her. (Schrey was shot at the rear of the
apartment.)
{¶ 108} Defendant’s attempt to kill Michael Thorpe was also purposeful.
Defendant was angry and had a strong motive to kill Thorpe, his rival for Kawczk.
He shot Thorpe in the head, a vital area. Eyewitnesses contradicted defendant’s
claim that Thorpe tried to grab him as defendant was leaving the restaurant.
{¶ 109} With respect to the second specification, defendant admitted that
he shot Julie Schrey first, in Deborah Thorpe’s presence. Thus, one may infer that
he killed Deborah Thorpe to eliminate the sole witness to Schrey’s murder. See
State v. Jester (1987), 32 Ohio St.3d 147, 148-149, 512 N.E.2d 962, 965.
Mitigating Factors
{¶ 110} Defendant was twenty-two years old at the time of the offense. His
youth is entitled to some weight under R.C. 2929.04(B)(4). State v. Grant (1993),
67 Ohio St.3d 465, 486, 620 N.E.2d 50, 71; but, cf., State v. Ballew (1996), 76 Ohio
St.3d 244, 257, 667 N.E.2d 369, 382 (age of twenty-two entitled to little weight).
Also, defendant plainly lacks a “significant history of prior criminal convictions
and delinquency adjudications.” R.C. 2929.04(B)(5). His record consists solely of
a few minor violations. We assign this factor significant weight.
{¶ 111} Defendant was the youngest of his mother’s six children by three
different fathers. Defendant’s father, Clifton White, Jr., lived with the family “on
and off.” When defendant was six or seven years old, Clifton White, Jr. was
imprisoned for raping his daughter.
{¶ 112} Defendant’s mother, Shirley White, was an alcoholic. Defendant’s
sister testified that Shirley White was a “mean” drunk who would hit her children
“maybe about once or twice [a] week” with a switch, belt, or electrical cord.
However, defendant’s sister was unclear as to how often Shirley White hit
defendant. “About three times. * * * I don’t know. He probably got more
whoppings than I did.”
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{¶ 113} On the other hand, Shirley White testified that her temper was not
“that bad” when she drank, and that she “whopped” her children “[n]ot that much,
but whenever they did something bad.” She also denied striking them with a cord,
although she admitted using other objects to administer corporal punishment.
{¶ 114} The family moved frequently, living in five to ten different homes
during defendant’s childhood. Defendant attended eight different schools during
the first six years of his education. Shirley White’s children were taken from her
custody at least once due to neglect and placed in a foster home.
{¶ 115} Defense psychologist, Dr. James Eisenberg, testified that defendant
is “mildly mentally retarded,” with an IQ of 63, in the lowest one percent of the
population. Dr. Eisenberg administered part of the Minnesota Multiphasic
Personality Inventory II (“MMPI II”) to defendant, but could not get a valid result.
Dr. Eisenberg believed that defendant did not understand the questions, which
supported Dr. Eisenberg’s diagnosis of retardation. Dr. Eisenberg also gave
defendant the verbal portion of the Wechsler Adult Intelligence Scale Revised
(“WAIS-R”) and felt the result was valid; that result also indicated retardation.
{¶ 116} Dr. Eisenberg also concluded that defendant suffers from mild
depression, a mental disorder characterized by loss of self-esteem, feelings of
hopelessness, worthlessness, helplessness, which he blamed on defendant’s
dysfunctional family. Dr. Eisenberg cited two alleged suicide attempts by
defendant. In 1992, defendant took an overdose of seventy vitamin pills, and about
four days before the murders, he overdosed on Nytol. Finally, defendant had
purchased a shotgun and talked to Heather Kawczk about killing himself with it.
{¶ 117} Rebuttal witness Dr. Yossef Ben-Porath, a consultant psychologist
with the Psycho-Diagnostic Clinic (“PDC”), had evaluated defendant before trial
for competency and sanity. Dr. Ben-Porath concluded that defendant had an
antisocial personality disorder.
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{¶ 118} Dr. Ben-Porath disagreed with Dr. Eisenberg’s diagnosis of
retardation. Defendant took intelligence tests at the PDC, but the results were
invalid because defendant was uncooperative. According to Dr. Ben-Porath,
defendant’s test results and other information elicited from him indicated that he
was malingering.
{¶ 119} Dr. Ben-Porath believed that defendant also malingered on the
MMPI II administered by Dr. Eisenberg, because defendant’s responses on the
MMPI’s validity scales were inconsistent with the random responses that would be
expected of a person who could not understand the questions. (Dr. Ben-Porath was
an expert on the MMPI II, having participated in its development and having trained
psychologists in its use.) Furthermore, Dr. Ben-Porath testified, the verbal portion
of the WAIS-R (the sole portion of that test given by Dr. Eisenberg) would tend to
understate defendant’s intelligence.
{¶ 120} Under the circumstances, we cannot find that defendant proved
mental retardation by a preponderance of the evidence. In contrast, defendant’s
mild depression was undisputed, but it is unclear what role (if any) it played in these
crimes. This is, at best, a weak mitigating factor.
{¶ 121} Defendant’s family background is entitled to some mitigating
weight. With a father in prison, an alcoholic and neglectful mother, and frequent
changes of school and residence, defendant surely lacked the stability and moral
instruction that most people have. Yet even backgrounds far worse than
defendant’s are seldom accorded major weight. Cf. State v. Campbell (1994), 69
Ohio St.3d 38, 54-55, 630 N.E.2d 339, 353-354; State v. Murphy (1992), 65 Ohio
St.3d 554, 585, 605 N.E.2d 884, 908; State v. Cooey, 46 Ohio St.3d at 41, 544
N.E.2d at 919; State v. Holloway (1988), 38 Ohio St.3d 239, 245-246, 527 N.E.2d
831, 838-839.
{¶ 122} In his unsworn statement, defendant expressed remorse for his
crimes: “I’m sorry for everything that happened * * * [.] I know everybody [is]
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hurt over it. I can’t really explain it * * * .” More important, he showed his remorse
on the very day he committed the crimes, by summoning help for his victims and
by turning himself in and confessing. This factor is entitled to significant weight.
See State v. Hicks (1989), 43 Ohio St.3d 72, 80, 538 N.E.2d 1030, 1039. However,
its weight is limited here by defendant’s lack of complete honesty. Cf. State v.
Wiles (1991), 59 Ohio St.3d 71, 93-94, 571 N.E.2d 97, 123. In his unsworn
statement and his confessions, defendant insisted that he meant to harm no one but
himself, a claim we cannot accept. Moreover, his version of the crime was
inconsistent with the evidence.
{¶ 123} Defendant’s sister and cousin testified that defendant had a close
relationship with his daughter, Raven, one of the three children he fathered by three
different mothers. Defendant took care of Raven on weekends and when he did not
have to work, “and she was happy with him. * * * [S]he never wanted to leave; and
when he dropped her off, she cried * * * to be with her dad * * * .” Defendant’s
relationship with his daughter is entitled to some weight. See, e.g., State v. Webb
(1994), 70 Ohio St.3d 325, 342-343, 638 N.E.2d 1023, 1037-1038.
{¶ 124} There was some evidence that defendant took several Nytol tablets
on the morning of the murders. However, there was no testimony as to how the
Nytol affected defendant. Even if there had been some effect, voluntary
intoxication is not a strong mitigating factor. See, e.g., State v. Otte (1996), 74
Ohio St.3d 555, 568, 660 N.E.2d 711, 723.
{¶ 125} Although a number of mitigating factors exist here, the aggravating
circumstances of multiple murder and murder to escape accountability for another
crime outweigh these mitigating factors beyond a reasonable doubt.
Proportionality
{¶ 126} We have frequently affirmed death sentences in cases where
multiple murder was the only aggravating circumstance, including cases where “the
defendant was * * * under significant emotional stress.” State v. Williams (1997),
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January Term, 1999
79 Ohio St.3d 1, 20, 679 N.E.2d 646, 662-663. See, e.g., State v. Sowell (1988), 39
Ohio St.3d 322, 336-337, 530 N.E.2d 1294, 1309-1310; State v. Combs (1991), 62
Ohio St.3d 278, 294, 581 N.E.2d 1071, 1084; State v. Awkal (1996), 76 Ohio St.3d
324, 338-339, 667 N.E.2d 960, 972-973.
{¶ 127} On the other hand, we reversed a death sentence on independent
review in State v. Lawrence (1989), 44 Ohio St.3d 24, 541 N.E.2d 451, where the
mitigating factors included depression, lack of significant criminal history, and the
defendant’s care for his family. However, Lawrence’s mental problems, unlike
defendant’s, established a mitigating factor under R.C. 2929.04(B)(3) (diminished
capacity). Id., 44 Ohio St.3d at 32, 541 N.E.2d at 460. Lawrence could also point
to military service and provocation as strong mitigating factors. Moreover,
Lawrence’s depression was severe; defendant’s, according to defense witness Dr.
Eisenberg, was mild. Thus, we find that the death sentence for defendant is not
disproportionate.
{¶ 128} The judgment of the court of common pleas is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and COOK, JJ., concur.
F.E. SWEENEY, J., concurs in judgment only.
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