State v. Green

[This opinion has been published in Ohio Official Reports at 90 Ohio St.3d 352.]

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

[Cite as State v. Green, 2000-Ohio-182.]

Criminal law—Aggravated murder—Death penalty vacated and cause remanded

to trial court for further proceedings when trial court fails to comply with

Crim.R. 32(A)(1)—When imposing sentence, trial court must address

defendant personally and ask whether he or she wishes to make a statement

in his or her own behalf or present any information in mitigation of

punishment.

(No. 98-913—Submitted June 6, 2000—Decided December 20, 2000.)

APPEAL from the Court of Common Pleas of Lucas County, No. CR97-1450.

__________________

{¶ 1} On January 3, 1997, Samar El-Okdi was shot and left to die in an alley

in Toledo.

{¶ 2} Around 1:40 a.m., on January 7, 1997, Toledo police stopped a

Pontiac sedan, owned by El-Okdi, which was being driven by appellant, Joseph

Green. Green and Douglas Coley, a passenger in the car, were separately convicted

of the aggravated murder of El-Okdi and sentenced to death. In order to establish

Green’s identity as one of El-Okdi’s killers, the state introduced evidence that

Green and Coley had carjacked, kidnapped, robbed, and then attempted to murder

David Moore in Toledo on December 23, 1996.

{¶ 3} On December 23, 1996, around 7:30 p.m., David Moore parked his

1990 blue Ford Taurus at his apartment complex at 2152 Scottwood in Toledo.

While Moore was unloading his car trunk, Green walked up and asked for

directions. Then Coley appeared, and both he and Green displayed guns held next

to their chest. Coley told Moore, “Give me the keys,” which Moore did. Then

Coley told Moore, “Get in the car,” and both Green and Coley forced Moore into

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the car. Green also said, “Don’t look at our faces. We don’t want you to be able

to identify us.”

{¶ 4} Coley drove, Moore sat in front, and Green sat behind Moore. Green

told Moore, “Don’t try an escape or I’ll kill you. I’m already wanted for murder

and it won’t matter, won’t make any difference.” Moore pled for his life, but neither

Green nor Coley responded. Green did tell Moore, “Cough up the cash,” and Moore

gave Coley $112. Eventually, Coley stopped near a deserted field and told Moore

to get out. As Moore did so, Coley shot him in the stomach.

{¶ 5} Moore ran, but stumbled and fell. Someone ran after him and shot

him in the head. As his assailant walked away, Moore was able to discern that the

shooter (Green) was the taller and heavier of the two men that had abducted him.

{¶ 6} As the Taurus drove away, Moore got up and struggled to a nearby

house where he collapsed. Police were summoned. Moore had been shot once in

the stomach, head, and arm, and twice in the hand, and spent thirty-nine days in the

hospital. Police later found two .25 caliber shell casings near where Moore had

been shot. On December 27, 1996, police recovered Moore’s blue Taurus, which

had stolen plates. At Green’s trial, Moore positively identified Green as one of his

assailants.

{¶ 7} On January 3, 1997, sometime after 5:00 p.m., Samar El-Okdi drove

her Pontiac 6000, Ohio license number RYH 862, to her apartment at 2104

Parkwood, which is a block from where Moore lived. Raymond Sunderman, El-

Okdi’s landlord, recalls that she arrived home that day sometime between 5:00 and

5:30 p.m. El-Okdi’s brother Shaheer remembers El-Okdi visiting his family-owned

convenience store for around forty-five minutes beginning between 5:00 and 6:00

p.m. At approximately 8:00 p.m., El-Okdi dropped off film at the Blue Ribbon

Photo store at Westgate Shopping Center. No one else that testified ever saw El-

Okdi alive again.

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{¶ 8} Around 8:30 p.m. that evening, Rosie Frusher left a friend’s house at

814 West Grove Place in Toledo to use a pay telephone. As Frusher walked toward

the back yard, she heard something that sounded like firecrackers. Frusher looked

toward the noise and saw a gray car with long taillights, which were lit, sitting in

the alley. Frusher testified that a photograph of El-Okdi’s car looked like the car

she had seen, and that the car’s license number had a zero in it. Frusher saw a black

man wearing a stocking cap sitting in the driver’s seat. Another black man, who

had bushy hair and resembled Green, was standing outside and leaning into the car.

(Frusher could not definitively state whether Green was that man.) Frusher

continued walking and called her friend from a nearby pay phone; Ameritech

records confirm that the call was placed at 8:41 p.m.

{¶ 9} On January 4, Christopher Neal, El-Okdi’s boyfriend, returned from

a trip and discovered that El-Okdi was missing. Later that day, Neal notified police

of El-Okdi’s continued absence. El-Okdi’s friends and relatives distributed

missing-person flyers, which described El-Okdi, her car, its bumper stickers, and

her last known whereabouts.

{¶ 10} On January 6, Megan Mattimoe, a friend of El-Okdi’s, was parked

on Scottwood waiting for a friend. Just before 11:00 p.m., Mattimoe saw a gray

Pontiac 6000 that was identical to El-Okdi’s car except that the license plate was

different. The Pontiac had a dent on the left side, like El-Okdi’s car, and bore a

distinctive bumper sticker identical to one on El Okdi’s car.

{¶ 11} Mattimoe followed in her own car until the Pontiac parked at an

apartment complex and two men got out. She backed out of the parking lot, called

911, and drove away. An older Cadillac chased her for several blocks at high speed.

{¶ 12} After Mattimoe talked with police later that night, she and a Toledo

detective returned to where the gray Pontiac was parked. Police verified that the

Pontiac 6000 bore an Ohio license plate, YRT 022, that had been stolen in

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November 1996. Police staked out the gray Pontiac using five undercover police

vehicles.

{¶ 13} After 1:00 a.m., Green, Coley, and a woman with a baby got into the

gray Pontiac, and drove away. Undercover police vehicles followed and, after

being joined by marked police vehicles, forced the Pontiac to stop. Green rammed

one police car and spun his wheels in an effort to escape being boxed in. After

removing Coley and Green from the car, police found a loaded, brown-handled, .25

caliber semiautomatic pistol on the floor in the back seat near where Coley had

been sitting. Green had a loaded, pearl-handled, .25 caliber semiautomatic pistol

in his coat.

{¶ 14} After arresting Green, police officers advised him of his Miranda

rights and questioned him. Green first claimed that he had rented the car for several

days from a “dope fiend.” Later he told police that he had heard that Coley had

obtained the car. Finally, Green stated that Coley had told him that he had shot a

woman. Green also admitted that he had stolen license plates and placed them on

the Pontiac, and that Coley had been driving the Pontiac for several days.

{¶ 15} Based on Green’s interview, police found El-Okdi’s body around

2:30 p.m. in an alley near where Frusher had heard shots and had seen a gray car

some four days earlier. At the scene, police found a shell casing about five feet

from El-Okdi’s body. The coroner determined that El-Okdi had died from a .25

caliber bullet that struck her between the eyes and which had been fired from a

distance of less than one foot. The coroner concluded that El-Okdi did not die

immediately but may have drifted in and out of consciousness.

{¶ 16} On January 8, 1997, Coley and Green were arraigned on charges

relating to El-Okdi’s stolen Pontiac, the stolen plates, and carrying concealed

weapons. That arraignment was televised. Moore, who was watching local news

on television, immediately recognized Green and Coley as the men who had

kidnapped, robbed, and shot him.

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{¶ 17} At trial, Tyrone Armstrong, a cousin to both Coley and Green,

testified that Green and Coley usually carried .25 caliber semiautomatics.

Armstrong identified the guns: Green’s was pearl-handled, and Coley’s had a

brown stock. Armstrong also testified that on December 24, 1996, Coley and

Green, who spent a lot of time together, were driving around in a blue Taurus sedan.

That day, Green made up a rap song with the words “I shot him five times, and he

dropped, he tried to run, so I shot him.” On January 4 and January 6, 1997,

Armstrong saw both Coley and Green driving around in a gray Pontiac 6000 sedan.

{¶ 18} David Cogan, a firearms expert, examined two bullets, one removed

from El-Okdi’s brain and the other from Moore’s wrist, together with three shell

casings recovered from the two crime scenes. Cogan concluded that the Raven .25

caliber pistol recovered from the Pontiac’s back floor had fired both bullets and had

ejected all three shell casings.

{¶ 19} George Cass, an ammunitions expert, concluded that the

ammunition that was found in both guns was consistent with the projectiles

recovered from Moore and El-Okdi and with shell casings from the crime scenes.

The casings were made of the “same case material” and had “identical head

stamps.” The “live rounds had the identical bullets.” These items were also

consistent with ammunition originally packed in an empty .25 caliber ammunition

box found at Green’s home.

{¶ 20} Deborah Angel, a friend of Frusher’s, testified that Frusher had

problems with drugs and alcohol and exhibited multiple personalities at times.

Twelve-year-old Albert Quinn, who was with Frusher on the evening of the El-

Okdi shooting, claimed that Frusher had been inside when the shots were fired.

Quinn also saw the car in the alley when he and Frusher went outside, and Quinn

agreed that the car looked like a photo of El-Okdi’s car. Quinn did not see anyone

outside the car.

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{¶ 21} Dr. Jolie Brams, a clinical psychologist and expert in eyewitness

identification, described Frusher as a woman who “experiences a range of rather

debilitating psychiatric and psychological disorders.” Frusher is “severely mentally

disabled” and her mental condition makes her “very vulnerable to suggestions.”

Her mental condition and past abuse of drugs and alcohol “negatively impact[ed]

her ability to acquire information * * * in an accurate manner.”

{¶ 22} The offenses against Moore and El-Okdi were joined. Prior to trial,

Green pled guilty to carrying a concealed weapon and to the offenses against

Moore. After the trial, a three-judge panel convicted Green of the aggravated

murder of Samar El-Okdi, as well as other offenses, and sentenced Green to death.

The chart that follows lists all charges, pleas, and the resulting sentences. On the

death specifications in Counts IV, V, and VI (later merged), the panel found that

prior calculation and design had been proved.

Charge Plea Finding Sentence

I. Kidnapping of David Moore, R.C. Guilty Guilty Ten years

2905.01(A)(2)

II. Aggravated robbery of Moore, R.C. Guilty Guilty Ten years

2911.01(A)(1)

III. Attempted murder of Moore, R.C. Guilty Guilty Ten years plus three

2923.02 years actual

IV. Aggravated murder of Samar El-Okdi, Not Guilty Guilty Death

R.C. 2903.01(A), with R.C. 2929.04(A)(7)

death specification

V. Aggravated felony murder of El-Okdi, Not guilty Guilty Merged with IV

R.C. 2903.01(B), with R.C. 2929.04(A)(7)

death specification

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VI. Aggravated felony murder of El-Okdi, Not guilty Guilty Merged with IV

R.C. 2903.01(B), with R.C. 2929.04(A)(7)

death specification

VII. Kidnapping of El-Okdi, R.C. Not guilty Guilty Ten years

2905.01(A)(2)

VIII. Aggravated robbery of El- Okdi, R.C. Not guilty Guilty Ten years plus three

2911.01(A)(1) years actual

IX. Carrying concealed weapon, R.C. Guilty Guilty Eighteen months

2923.12(A) and (D)

X. Receiving stolen auto, R.C. 2913.51 Not guilty Guilty Eighteen months

XI. Receiving stolen license plate, R.C. Guilty Guilty Twelve months

2913.51 and 2913.71(c)

Gun specifications in I, II, and III, R.C. Guilty Guilty Merged into one three-

2941.145 year actual term in III,

above

Gun specifications in IV through VIII Not guilty Guilty Merged into one three-

year actual term in

VIII, above

{¶ 23} The cause is now before this court upon an appeal as of right.

__________________

Julia R. Bates, Lucas County Prosecuting Attorney, John J. Weglian and

Brenda J. Majdalani, Assistant Prosecuting Attorneys, for appellee.

Spiros P. Cocoves; David H. Bodiker, State Public Defender, and Pamela

Prude-Smithers, Assistant Public Defender, for appellant.

__________________

PFEIFER, J.

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{¶ 24} In this appeal, Green advances twenty propositions of law. We reject

each of the propositions relating to his convictions and therefore affirm his

convictions.

{¶ 25} We vacate the death penalty, however, and remand the cause to the

trial court for further proceedings, primarily because the trial court failed to comply

with Crim.R. 32(A)(1), which requires the trial court in every criminal case to

personally address the defendant “and ask if he or she wishes to make a statement

on his or her own behalf or present any information in mitigation of punishment.”

Additionally, we conclude that the trial court’s sentencing opinion contains

numerous deficiencies. Accordingly, the trial court must reconsider and revise that

opinion prior to resentencing Green for the aggravated murder of Samar El-Okdi.

I

Sufficiency of the Evidence

{¶ 26} In his first proposition of law, Green challenges the sufficiency of

the evidence to support prior calculation and design, which was charged in Count

IV and in the death-penalty specifications in Counts IV, V, and VI.

{¶ 27} We have held that “[t]he relevant inquiry [on appeal] is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560. “[T]he weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass

(1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the

syllabus.

{¶ 28} To qualify for the death penalty under R.C. 2929.04(A)(7), the

defendant must be the principal offender (“the actual killer,” State v. Penix [1987],

32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746) or, if not, the trier of fact must find

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that the murder was committed with prior calculation and design. Id. Here, the

trial panel declared that having found prior calculation and design, it need not

determine whether Green was the principal offender in the aggravated murder.

{¶ 29} Because the trial panel did not find that Green was the principal

offender, i.e., “the actual killer,” the sufficiency of the evidence on prior calculation

and design will determine whether the death penalty can be imposed in this case.

See R.C. 2929.04(A)(7); State v. Taylor (1993), 66 Ohio St.3d 295, 306-308, 612

N.E.2d 316, 324-325; State v. Penix, supra.

{¶ 30} In 1974, the term “prior calculation and design” replaced the term

“deliberate and premeditated malice” in defining aggravated murder in Ohio. 134

Ohio Laws, Part II, 1866, 1900. No bright-line test exists that “emphatically

distinguishes between the presence or absence of ‘prior calculation and design.’ ”

State v. Taylor (1997), 78 Ohio St.3d 15, 20, 676 N.E.2d 82, 89. However, prior

calculation and design is a more stringent element than premeditation. State v.

Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190, paragraph one of the

syllabus.

{¶ 31} In this case, the evidence directly establishes how and where El-Okdi

was killed, although facts relating to where she was kidnapped and robbed are

missing. The evidence supports the trial court’s finding that Green was guilty of

complicity in her death and thus was one of her killers. When he was arrested, he

was driving her car. His constant companion, Coley, possessed the gun that killed

her. Green knew where her body could be found. Moreover, just twelve days

earlier and a block from where El-Okdi lived, Green and Coley, acting together,

had carjacked and robbed David Moore, driven him to a deserted area, shot him

several times, and left him for dead.

{¶ 32} Green argues that the state’s proof of prior calculation and design

rests solely on the supposition that the facts of El-Okdi’s kidnapping, robbery, and

murder were similar to what we know about the crimes against Moore. He admits

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that “other acts” evidence is admissible to establish identity or intent under Evid.R.

404(B). However, he argues that it is impermissible to use other-acts evidence to

prove prior calculation and design in a later crime.

{¶ 33} We reject Green’s challenge to the sufficiency of the evidence. First,

Evid.R. 404(B) recognizes that “other acts” evidence can be admitted to prove, inter

alia, “intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” (Emphasis added.) Additionally, prior calculation and design can be

found even when the plan to kill was quickly conceived and executed. See State

v. Goodwin (1999), 84 Ohio St.3d 331, 343-345, 703 N.E.2d 1251, 1263 (store

robbery in which one clerk was shot); State v. Taylor, 78 Ohio St.3d at 20-23, 676

N.E.2d at 89-91 (two- to three-minute encounter in bar between rivals for another’s

affections).

{¶ 34} In any event, the known facts of El-Okdi’s kidnapping, robbery, and

murder by themselves, apart from the Moore crimes, support finding prior

calculation and design. For example, El-Okdi was killed in an isolated area and

was kidnapped for no apparent reason other than to kill her. El-Okdi was

considerably smaller than her two armed killers, and she could not have posed any

threat or put up any credible resistance. Nothing in the record suggests that she

went to the location where she was killed voluntarily. In fact, El-Okdi had told a

friend that she wanted to spend the evening at home alone. Also, El-Okdi was shot

at close range, between the eyes, which suggests an execution-style slaying.

Frusher testified that the Pontiac’s license plate had a zero in it, which means that

Green and Coley placed stolen plates on El-Okdi’s Pontiac where they killed her.

Finally, Green and Coley drove her Pontiac 6000 around town, which suggests a

plan both to use her property and deprive her of any way to complain about its use.

We reject Green’s first proposition of law.

II

Allocution Rights

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{¶ 35} In his second proposition of law, Green argues that he was denied

due process and his rights under Ohio law because he was “not given an opportunity

to speak before the death penalty [was] imposed.” Ohio Crim.R. 32(A)(1) confers

an absolute right of allocution:

“At the time of imposing sentence, the court shall * * *:

“Afford counsel an opportunity to speak on behalf of the defendant and

address the defendant personally and ask if he or she wishes to make a statement in

his or her own behalf or present any information in mitigation of punishment.” See

State v. Campbell (2000), 90 Ohio St.3d 320, 738 N.E.2d 1178, paragraph one of

the syllabus; State v. Reynolds (1998), 80 Ohio St.3d 670, 684, 687 N.E.2d 1358,

1372.

{¶ 36} The state argues that the court asked Green whether he wished to

make a statement before imposing sentence. Around 9:25 p.m. on March 11, after

hearing the penalty-phase evidence and deliberating for several hours, the panel

announced that it was ready to proceed. After noting its previous findings, the court

asked whether the defense had any objection to sentencing on the noncapital

offenses as well as the capital offenses that evening. The defense had no objection.

The following exchange then took place:

“The Court: Is there anything with regard to those offenses, Counsel or Mr.

Green, prior to the Court passing sentence on both those counts as well as on Counts

7, 8 and 10?

“Mr. Cameron [defense counsel]: Anything we wish to say?

“The Court: Yes.”

{¶ 37} Counsel then commented about sentencing on the firearm

specifications, and the court agreed. Counsel said nothing further, and Green said

nothing. After Moore, Moore’s wife, and Moore’s brother made victim impact

statements, the court imposed sentences for each offense to which Green pled guilty

or was found guilty, including aggravated murder.

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{¶ 38} The trial court clearly erred in not explicitly asking Green, in an

inquiry directed only to him, whether he had anything to say before he was

sentenced. The United States Supreme Court has specifically cautioned federal

judges under the comparable Federal Rules: “Trial judges before sentencing should

* * * unambiguously address themselves to the defendant. * * * [J]udges should

leave no room for doubt that the defendant has been issued a personal invitation to

speak prior to sentencing.” Green v. United States (1961), 365 U.S. 301, 305, 81

S.Ct. 653, 655, 5 L.Ed.2d 670, 674.

{¶ 39} The trial court’s reference to “both those counts” is ambiguous. The

context suggests that the court may have solicited comment only on the noncapital

offenses. Instead, the trial court should have specifically asked Green if he had

anything to say about the capital counts as well as the other offenses. The record

demonstrates a violation of Crim.R. 32 that was neither invited nor harmless.

{¶ 40} Trial courts must painstakingly adhere to Crim.R. 32, guaranteeing

the right of allocution. A Crim.R. 32 inquiry is much more than an empty ritual: it

represents a defendant’s last opportunity to plead his case or express remorse. “[I]ts

legal provenance was the common-law right of allocution.” Green, 365 U.S. at

304, 81 S.Ct. at 655, 5 L.Ed.2d at 673. See, also, United States v. Myers (C.A.5,

1998), 150 F.3d 459, 461-462; United States v. Riascos-Suarez (C.A.6, 1996), 73

F.3d 616, 627; Annotation (1964), 96 A.L.R.2d 1292, Section 4.

{¶ 41} Green’s right of allocution was violated, thereby undercutting the

constitutional reliability of this death sentence. Accordingly, we sustain his second

proposition of law and remand for resentencing. Campbell, 90 Ohio St.3d 320, 738

N.E.2d 1178, paragraph three of the syllabus.

III

Residual Doubt

{¶ 42} In his third proposition of law, Green urges that this court to overrule

State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus (“Residual

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doubt is not an acceptable mitigating factor under R.C. 2929.04[B]”). In support,

Green argues that McGuire unconstitutionally limits mitigation evidence under the

reliability component of the Eighth Amendment and that an accused has a due

process right to argue against evidence of guilt that supports the death penalty.

{¶ 43} However, the precedents are clear and contrary to Green’s

arguments. We decline to overrule State v. McGuire. Neither the United States

Constitution nor the Constitution of Ohio requires that residual doubt be considered

as a mitigating factor. Franklin v. Lynaugh (1988), 487 U.S. 164, 108 S.Ct. 2320,

101 L.Ed.2d 155; State v. McGuire, supra, at 402-404, 686 N.E.2d at 1122-1123.

We reject Green’s third proposition of law.

IV

Weighing and Determination of the Death Penalty

{¶ 44} In his fourth and fifth propositions of law, Green argues that the trial

court’s sentencing opinion was constitutionally deficient because the court

improperly weighed the aggravating circumstances that were alleged and proved,

improperly considered nonstatutory aggravating circumstances, and failed to

consider relevant mitigating evidence. We agree and sustain his fourth and fifth

propositions of law.

{¶ 45} R.C. 2929.03(D)(3) specifies that the death penalty shall be imposed

“if the panel of three judges unanimously finds, by proof beyond a reasonable

doubt, that the aggravating circumstances the offender was found guilty of

committing outweigh the mitigating factors.” “[T]he ‘aggravating circumstances’

against which the mitigating evidence is to be weighed are limited to the

specifications of aggravating circumstances set forth in R.C. 2929.04(A)(1) through

(8) that have been alleged in the indictment and proved beyond a reasonable doubt.”

State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311, paragraph one of

the syllabus. Accord State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494

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N.E.2d 1061, syllabus; State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895,

paragraph three of the syllabus.

{¶ 46} When the trial panel imposed the death penalty on Green it violated

these principles. For example, the single death-penalty specification in Count IV,

aggravated murder with prior calculation and design, as well as the single death

specification in Counts V and VI, alleged that Green committed the murder while

committing or attempting to commit “kidnapping or aggravated robbery.”1

(Emphasis added.) Despite the indictment’s clear language, the trial verdict stated

that Green committed the murder while committing “both a kidnaping and an

aggravated robbery.” (Emphasis added.) The panel’s death penalty opinion also

altered the aggravating circumstance from that specifically alleged in the

indictment, by considering as two separate and distinct aggravating circumstances

Green’s involvement in committing “both an aggravated robbery and a

kidnapping.” Moreover, the panel gave weight to both kidnapping and aggravated

robbery as separate and distinct aggravating circumstances despite the fact that they

were not alleged as such. By doing so, the panel wrongfully multiplied a single

circumstance into two. See State v. Spivey (1998), 81 Ohio St.3d 405, 420, 692

N.E.2d 151, 163, fn. 2; State v. Davis (1988), 38 Ohio St.3d 361, 367-373, 528

N.E.2d 925, 931-935.

{¶ 47} The panel made another egregious error by declaring that “the State

has proved aggravating circumstances beyond a reasonable doubt under both R.C.

2929.04(A)(3) and (A)(7): that is, that the killing of Samar El-Okdi was for the

purpose of escaping detection, apprehension, trial or punishment for another

offense committed by Mr. Green.” The panel, relying upon the (A)(3) factor in

deciding to impose the death penalty, stated: “The killing of Samar El-Okdi was

1. The panel correctly merged the aggravated murder charges for a single victim into a single offense

for punishment purposes. See State v. Lawson (1992), 64 Ohio St.3d 336, 351, 595 N.E.2d 902,

913. Counts V and VI were “merged into [Count IV] as allied offenses of similar import.”

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planned, calculated and carried out as an execution of a potential witness.” In

discussing the aggravating circumstances, the panel referred to “the gratuitous,

cold, calculating and seemingly remorseless execution of Ms. El-Okdi.”

{¶ 48} However, the indictment did not allege a violation of R.C.

2929.04(A)(3), and the parties did not argue the issue. The panel’s first reference

to this aggravating circumstance was in the penalty opinion, not the guilt-phase

verdict. The panel thus violated R.C. 2929.03(D)(3) and Wogenstahl by imposing

death on the basis of an aggravating circumstance with which Green was never

charged. State v. Baston (1999), 85 Ohio St.3d 418, 426, 709 N.E.2d 128, 136;

State v. Raglin (1998), 83 Ohio St.3d 253, 257, 699 N.E.2d 482, 487.

{¶ 49} Third, the trial panel relied on nonstatutory aggravating

circumstances in imposing the death penalty. The trial court’s sentencing opinion

compared and contrasted the Moore offenses with the El-Okdi killing. However,

Green was separately sentenced for the offenses against Moore, and no “course of

conduct” specification, R.C. 2929.04(A)(5), was charged in this case. While the

offenses against Moore helped prove that Green was involved in El-Okdi’s murder

(see discussion on Green’s eleventh proposition of law), they were not relevant to

the specified aggravating circumstance or to the decision to impose the death

penalty upon Green. For example, the trial court’s penalty opinion states:

“The Moore incidents are hauntingly evocative of the facts surrounding the

[offenses against El-Okdi]. Both were [carjacked]; both were forced back into their

cars at gunpoint; both were then driven to remote alleys, ordered out of their cars,

and then shot at point blank range. * * * Green and Coley kept both cars for several

days afterwards.” * * * Perhaps they had some doubts that they had succeeded in

killing Mr. Moore; but there could have been no such doubt as to Ms. El-Okdi. She

was shot directly between the eyes at very close range.

“***

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“[I]t is difficult to imagine a colder or more calculating murder than that of

Ms. El-Okdi, or the attempted murder of Mr. Moore. * * * The only purpose of

the subsequent kidnapping and ensuing events in each case was to eliminate any

possibility of later identification. Each of these offenses taken as a sequence was

chilling in the extreme.”

{¶ 50} Further, the trial court also improperly used facts about the offenses

against El-Okdi as nonstatutory aggravating circumstances. See Wogenstahl, 75

Ohio St.3d at 352-355, 662 N.E.2d at 319-321, and at paragraph two of the syllabus;

State v. Davis, 38 Ohio St.3d at 367-369, 528 N.E.2d at 931-933. Also, the panel’s

speculation in the sentencing opinion that “it is certainly possible from the evidence

that Mr. Green was the shooter” was improper, since the panel did not determine

that he was the principal offender. See discussion of Green’s first proposition of

law.

{¶ 51} Fourth, the court used an improper weighing standard, i.e., the panel

found “the cumulative weight of the mitigating factors * * * do not offset the

aggravating circumstances * * * proved beyond a reasonable doubt by the State.”

Before the death penalty can be imposed, R.C. 2929.03(D)(3) specifies that the

panel must find, by proof beyond a reasonable doubt, that the aggravating

circumstances “outweigh the mitigating factors.” Thus, the panel’s language

obscured the state’s burden to prove beyond a reasonable doubt that the aggravating

circumstances outweighed mitigating factors. Moreover, the panel’s wording,

which referred to mitigation “offset[ting]” aggravation, improperly suggested that

the defense had the burden of persuasion. See State v. Hill (1995), 73 Ohio St.3d

433, 438-439, 653 N.E.2d 271, 278.

{¶ 52} Finally, in his fifth proposition of law, Green asserts that the court

did not give appropriate weight to mitigating factors. Admittedly, “the assessment

and weight to be given mitigating evidence are matters for the trial court’s

determination.” State v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d 293, 305.

16

January Term, 2000

Accord State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383,

paragraph two of the syllabus.

{¶ 53} In this case, however, the trial court misinterpreted our decision in

State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, which held that residual

doubt was not acceptable as a mitigating factor under R.C. 2929.04(B) in capital

cases. Here, the trial court declared that, but for the McGuire decision, “the

resulting penalty for the capital murder count and specification would have been

life without the possibility of parole, instead of death.” The trial court then asserted,

“Residual doubt as to identity, and to a lesser extent as to the role played by

[Green] in the demise of Ms. El-Okdi, would have played a pivotal role in this case,

based upon the evidence. * * * Unequivocally, for what it is worth, it would have

resulted in a different sentence.” (Emphasis added.)

{¶ 54} However, the McGuire decision does not and was never intended to

preclude the appropriate weighing of the evidence and the independent weighing

of aggravating circumstances against mitigating factors. Accordingly, the trial

panel was able to give whatever weight it thought appropriate to the fact that it did

not find that Green was the principal offender in the aggravated murder. Indeed,

the fact that a defendant was not the principal offender is a specific statutory

mitigating factor. See R.C. 2929.04(B)(6). Normally, it would be a powerful

mitigating factor. Very few death sentences have been approved against persons

who were not the principal offender. Cf. State v. Robb (2000), 88 Ohio St.3d 59,

723 N.E.2d 1019. Yet, in evaluating the evidence, the trial court gave virtually no

weight to the fact that Green was not found to be the principal offender in the

aggravated murder. Moreover, the court’s erroneous reading of our decision in

McGuire appears to have contributed to this failure.

{¶ 55} Deficiencies in a sentencing opinion can normally be corrected by

appellate reweighing. See State v. Fox (1994), 69 Ohio St.3d 183, 190-191, 631

N.E.2d 124, 131; State v. Lott, 51 Ohio St.3d at 170, 555 N.E.2d at 304. We deem

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the deficiencies in this case too severe to correct by simply reevaluating the

evidence. In this case, the collective deficiencies in the trial court’s decision to

impose the death penalty, as reflected in the sentencing opinion, undermine our

confidence in that decision. The panel overlooked many of this court’s prior

decisions and the mandated statutory framework. These cumulative errors reflect

grievous violations of the statutory deliberative process. Accordingly, we vacate

the death penalty imposed in this case and remand to the trial court for further

deliberations. See State v. Davis, 38 Ohio St.3d at 372, 528 N.E.2d at 936.

{¶ 56} While revising the sentencing opinion to address the deficiencies

noted, the trial court judges on remand must consider whatever Green discusses

should he choose to exercise his right to allocution. See discussion on Green’s

second proposition of law.

V

Victim-Impact Evidence

{¶ 57} In his seventh proposition of law, Green argues that his

constitutional rights were violated when Moore’s family members asserted that

Green should be sentenced to death.

{¶ 58} Following the penalty deliberations, the court asked if it could

accelerate sentencing for the Moore offenses, which had been scheduled for the

next day. The defense agreed. Then, before the court announced the sentencing

decisions for the Moore and El-Okdi offenses, David Moore described the events

of his “terrifying” night, as well as the thoughts and emotions engendered by it. He

wanted to ensure that “these predators are never allowed to inflict this terror again

on anyone else” and expressed his desire that they receive a maximum sentence.

{¶ 59} Moore’s wife described her anger, her fear, David Moore’s

suffering, and the impact of the offenses. She also contrasted the lives of Green

and her husband, and commented on the impact that El-Okdi’s death had on El-

Okdi’s family. Mrs. Moore thought that Green lacked remorse and asked, “How

18

January Term, 2000

dare this coward [Green] think that he deserves to live when he has taken the life

of another[?]” Paul Moore, David’s brother, also spoke about his brother, the

impact of the offenses, and the impact that El-Okdi’s murder had on El-Okdi’s

family. Paul Moore asked the court to “consider the gravity and the cruelty of these

crimes and protect us by issuing the harshest penalty available by law.” Defense

counsel did not object to these statements.

{¶ 60} The United States Constitution does not prohibit victim-impact

evidence in capital cases. Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597,

115 L.Ed.2d 720; State v. Goodwin, 84 Ohio St.3d at 343, 703 N.E.2d at 1262.

However, neither Ohio’s Constitution nor its statutes authorized Moore or his

family to speculate about the impact of El-Okdi’s murder on El-Okdi’s family. See,

e.g., R.C. 2930.14; R.C. 2930.02; cf. State v. White (1999), 85 Ohio St.3d 433, 446-

447, 709 N.E.2d 140, 154-155.

{¶ 61} The trial court should not have permitted Moore or his family

members to express opinions about how Green should be punished for the offenses

against El-Okdi. State v. Huertas (1990), 51 Ohio St.3d 22, 553 N.E.2d 1058,

syllabus (“Expressions of opinion by a witness as to the appropriateness of a

particular sentence in a capital case violate the defendant’s constitutional right to

have the sentencing decision made by the jury and judge”). Accord State v.

Goodwin, 84 Ohio St.3d at 343, 703 N.E.2d at 1262; State v. Fautenberry (1995),

72 Ohio St.3d 435, 439, 650 N.E.2d 878, 882.

{¶ 62} Because Green did not object, the issue must be considered on a

plain-error basis. Moreover, judges can normally be presumed not to have relied

upon such improper expressions of opinion. See State v. Goodwin, 84 Ohio St.3d

at 343, 703 N.E.2d at 1262; State v. Post (1987), 32 Ohio St.3d 380, 384, 513

N.E.2d 754, 759. However, since the trial court’s death opinion in this case dwelt

at length on the Moore offenses, which were not relevant, that presumption cannot

reasonably apply in this case. In revising their sentencing opinion in this case, the

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judges constituting the trial panel should clarify whether or not they considered

expressions of opinion from others as to what the sentence should be in this case.

We sustain Green’s seventh proposition of law.

VI

Pretrial Issues

{¶ 63} Procedures on arrest. In his eighth proposition of law, Green

argues that he was arrested without a warrant on January 7, 1997, that he was not

promptly taken before a magistrate for a probable cause determination, and

therefore that “all fruits of the warrantless arrest must be suppressed.” We find that

Green’s arguments lack merit.

{¶ 64} Green’s claim that he first appeared in court on January 15, eight

days after his arrest, is wrong. On January 8, Green appeared in Toledo Municipal

Court for a preliminary hearing, which is a probable cause determination. R.C.

2937.09. He was charged with carrying a concealed weapon and receiving stolen

property. A video of that court appearance is in the record.

{¶ 65} As Green did not complain at trial about the failure to conduct a

prompt preliminary hearing, he waived the issue. See State v. Campbell (1994), 69

Ohio St.3d 38, 44, 630 N.E.2d 339, 347; State v. F.O.E. Aerie 2295 (1988), 38 Ohio

St.3d 53, 526 N.E.2d 66, paragraph two of the syllabus; State v. Wade (1978), 53

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

We reject Green’s eighth proposition of law.

{¶ 66} Suppression of pretrial statements. In his ninth proposition of

law, Green argues that his Miranda waiver and pretrial statements to police were

coerced. Green argues that sleep deprivation overcame his will because he was

questioned for over twelve hours without rest.

{¶ 67} In determining whether a confession is involuntary, a court “should

consider the totality of the circumstances, including the age, mentality, and prior

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

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January Term, 2000

interrogation; the existence of physical deprivation or mistreatment; and the

existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, 3

O.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus. See State v. Brewer

(1990), 48 Ohio St.3d 50, 58, 549 N.E.2d 491, 499; State v. Barker (1978), 53 Ohio

St.2d 135, 7 O.O.3d 213, 372 N.E.2d 1324. The same considerations apply to

whether Green voluntarily waived his rights.

{¶ 68} The evidence supports a finding that Green voluntarily waived his

Miranda rights both verbally and in writing and voluntarily talked with police.

Green acknowledged that he understood his rights and he in fact waived them on at

least three separate occasions. Green was arrested around 1:45 a.m. on January 7,

1997. He was first questioned at 5:04 a.m. when he was advised of and waived his

Miranda rights. He told police that a “dope fiend” rented him the car, so detectives

drove him around town looking for this person. Around 10:30 a.m., Green again

signed a waiver of Miranda rights. Around 2:30 p.m., police again advised Green

of his Miranda rights and Green signed another waiver. Around 4:30 p.m., Green

claimed in a taped statement that Coley told him that he had shot a woman and

stolen her car. Green denied that he was involved in this crime.

{¶ 69} No evidence suggests that police physically abused Green,

threatened him, or made any promises during questioning. Green was eighteen

years old when questioned. Interviews were sporadic, not continuous, and Green

was given food and breaks. Green never refused to answer questions, never asked

for questioning to stop, and never asked for medical attention or a lawyer. Green

did not complain that he was tired, nor does any evidence indicate that he was tired.

{¶ 70} The length and intensity of the questioning did not overcome his

will. See State v. Barker, 53 Ohio St.2d at 141, 7 O.O.3d at 217, 372 N.E.2d at

1329-1330. Instead, Green maintained his claim that he did not kidnap, rob, or kill

El-Okdi but simply drove her car after she was killed. The record supports the trial

court’s decision to reject the suppression motion. As State v. Fanning (1982), 1

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Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584, held, “the weight of the

evidence and credibility of witnesses are primarily for the trier of the facts. * * *

This principle is applicable to suppression hearings as well as trials.” Accord State

v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of

the syllabus; State v. DePew (1988), 38 Ohio St.3d 275, 277, 528 N.E.2d 542, 547.

We reject Green’s ninth proposition of law.

{¶ 71} Waiver of jury trial. In his tenth proposition of law, Green argues

that his jury trial waiver was not knowing, intelligent, and voluntary because the

trial court did not explain “all of the implications of that waiver including the

limited right to appeal erroneous rulings by the three-judge panel.”

{¶ 72} However, a “trial court is not required to inform the defendant of all

the possible implications of waiver [of trial by jury].” State v. Bays (1999), 87 Ohio

St.3d 15, 20, 716 N.E.2d 1126, 1135, citing State v. Jells (1990), 53 Ohio St.3d 22,

559 N.E.2d 464, paragraph one of the syllabus. Accord State v. Filiaggi (1999), 86

Ohio St.3d 230, 238, 714 N.E.2d 867, 875; State v. Baston, 85 Ohio St.3d at 421,

709 N.E.2d at 132. The trial court discussed with Green his right to a jury trial,

including the role of fact-finding and the requirement of unanimity, and the court

determined that Green had fully discussed with counsel his decision to waive a jury.

The trial court did not mislead or misinform Green about his rights. Green signed

the waiver in open court and it was filed. We reject Green’s tenth proposition of

law. State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464, paragraph one of the syllabus;

State v. Baston, 85 Ohio St.3d at 422, 709 N.E.2d at 133; State v. Filiaggi, 86 Ohio

St.3d at 238, 714 N.E.2d at 875.

{¶ 73} Disqualification of trial judge. In his twelfth proposition of law,

Green argues constitutional error because Judge J. Ronald Bowman, who sat on the

three-judge panel trying Green, conducted an ex parte pretrial certification hearing

under Crim.R. 16(B)(1)(e), which restricted disclosure to the defense of the name

22

January Term, 2000

of Tyrone Armstrong, a prosecution witness. However, neither constitutional nor

prejudicial error occurred.

{¶ 74} “The judge who disposes of such a motion [under Crim.R.

16(B)(1)(e)] may not be the same judge who will conduct the trial,” State v. Gillard

(1988), 40 Ohio St.3d 226, 533 N.E.2d 272, paragraph one of the syllabus, because

“there is an unnecessary risk that the judge will harbor a bias against that

defendant.” Id. at 229, 533 N.E.2d at 276. Although Judge Bowman did not

“conduct the trial,” he did sit on the panel. Such a mistake “is not per se

prejudicial,” id., nor is “violation of the Gillard rule [a] constitutional error.” State

v. Esparza (1996), 74 Ohio St.3d 660, 662, 660 N.E.2d 1194, 1196.

{¶ 75} The fact that Judge Bowman had earlier ruled on the prosecutor’s

Crim.R. 16(B)(1)(e) certification and later sat on the panel was harmless error. The

hearing relating to Tyrone Armstrong was brief. It dealt with Armstrong’s family

relationship with Coley and Green, as cousins, the fact that all were incarcerated in

the same facility, and the fact that family members had asked Armstrong not to

cooperate with the prosecution. Moreover, much of Armstrong’s testimony dealt

with the Moore offenses, to which Green had pled guilty.

{¶ 76} With respect to the offenses against El-Okdi, Armstrong simply

corroborated that Green was riding in El-Okdi’s car for two or three days before he

was arrested. Green readily admitted that fact to detectives. The record does not

suggest that the trial panel relied upon or considered the brief statements made at

the pretrial Crim.R. 16 hearing. See State v. Post, 32 Ohio St.3d at 384, 513 N.E.2d

at 759. We find any error to be harmless and reject Green’s twelfth proposition of

law. Cf. State v. Gillard, 40 Ohio St.3d at 229-230, 533 N.E.2d at 277.

{¶ 77} Denial of continuance. In his fourteenth proposition of law, Green

argues that he was denied due process and the effective assistance of counsel when

the trial court failed to grant a continuance because his counsel did not have

adequate time to prepare for trial.

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{¶ 78} The United States Supreme Court has stated that “[t]here are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process. The answer must be found in the circumstances * * *,

particularly in the reasons presented [when] the request is denied.” Ungar v.

Sarafite (1964), 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921, 931. In

State v. Landrum (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710, 722, we

recognized that “[s]everal factors can be considered: the length of delay requested,

prior continuances, inconvenience, the reasons for the delay, whether the defendant

contributed to the delay, and other relevant factors.”

{¶ 79} In fact, “[t]he grant or denial of a continuance is a matter that is

entrusted to the broad, sound discretion of the trial judge.” State v. Unger (1981),

67 Ohio St.2d 65, 21 O.O.3d 41, 423 N.E.2d 1078, syllabus. We have sustained

trial judges in several capital cases who denied continuances despite defense claims

that it needed more time to prepare. See, e.g., State v. Mason (1998), 82 Ohio St.3d

144, 154-156, 694 N.E.2d 932, 947; State v. Spirko (1991), 59 Ohio St.3d 1, 17-18,

570 N.E.2d 229, 249; State v. Landrum, 53 Ohio St.3d at 115-116, 559 N.E.2d at

721-722.

{¶ 80} The record supports finding that the trial court did not abuse its

discretion. Defense counsel Ronnie Wingate represented Green in January 1997

on the original noncapital indictment. On March 10, 1997, Green was indicted on

capital charges. The next day, Wingate appeared at a hearing on Green’s behalf.

Thereafter, Wingate and Donald Cameron, who were the counsel at trial,

represented Green at pretrial hearings or conferences in 1997 on March 12, July 17,

August 5, August 12, September 16, September 18, October 9, October 15, and in

1998, on January 6, February 13, and February 23. Trial began on February 24,

1998. The trial date for September 8, 1997, had been reset for October 27, 1997,

and trial was again continued until February 23, 1998.

24

January Term, 2000

{¶ 81} Thus, counsel had nearly one year to prepare for trial and sentencing.

Although counsel claimed that they needed more time, their claims were not

specific. Another claim made by counsel, that they needed a continuance because

of exculpatory evidence, could reasonably have been found not credible by the trial

court in its discretion.

{¶ 82} Counsel presented a strong and specific defense based on the lack of

physical and testimonial evidence tying Green to the offenses against El-Okdi. In

the penalty phase, counsel presented several witnesses including a defense

psychologist. The record shows “strong, vigorous, and competent” representation

at all stages of the trial. See State v. Ballew (1996), 76 Ohio St.3d 244, 256, 667

N.E.2d 369, 381. No basis exists to find ineffective representation or an abuse of

discretion by the trial court in denying a continuance. See State v. Mason, 82 Ohio

St.3d at 155, 694 N.E.2d at 947; State v. Spirko, 59 Ohio St.3d at 17, 570 N.E.2d at

249. We reject Green’s fourteenth proposition of law.

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VII

Trial Issues

{¶ 83} “Other acts” evidence. In his eleventh proposition of law, Green

argues that improper evidence of other criminal acts, namely, evidence that he

kidnapped, robbed, and shot Moore, denied Green due process, a fair trial, and a

reliable sentencing determination. Green also argues that this “other acts” evidence

mostly concerned wrongdoing by Coley, not him.

{¶ 84} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts

is not admissible to prove” a defendant’s character as to criminal propensity. “It

may, however, be admissible * * * [to show] motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

“[T]he standard for determining admissibility of such evidence is strict.” State v.

Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682, paragraph one of the syllabus.

{¶ 85} “Other acts forming a unique, identifiable plan of criminal activity

are admissible to establish identity under Evid.R. 404(B).” State v. Jamison (1990),

49 Ohio St.3d 182, 552 N.E.2d 180, syllabus. In order “[t]o be admissible to prove

identity through a certain modus operandi, other-acts evidence must be related to

and share common features with the crime in question.” State v. Lowe (1994), 69

Ohio St.3d 527, 634 N.E.2d 616, paragraph one of the syllabus. Additionally,

“[t]he admission or exclusion of relevant evidence rests within the sound discretion

of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510

N.E.2d 343, paragraph two of the syllabus.

{¶ 86} In this case, the trial court did not abuse its discretion in admitting

evidence of the crimes against Moore to help prove the offenses against El-Okdi.

First, no issue existed as to Green’s responsibility for the offenses against Moore.

Moore positively identified Green, and Green pled guilty to those offenses.

{¶ 87} Green is mistaken when he argues that he was only a minor

participant in these offenses. According to Moore, Green was the first person to

26

January Term, 2000

approach him. Then Green and Coley displayed guns and both forced him in the

car. Green told Moore not to look at their faces and told Moore, “Don’t try an

escape or I’ll kill you.” Green also told Moore, “Cough up the cash.” Finally,

Green was the one who chased Moore and shot him several times.

{¶ 88} Second, the offenses against Moore showed a “unique, identifiable

plan of criminal activity” helping to prove Green’s identity as one who kidnapped,

robbed, and killed El-Okdi. That evidence also relates to Green’s intent and his

plans and preparation under Evid.R. 404(B). In other cases, we have upheld similar

“other acts” evidence. See, e.g., State v. Bey (1999), 85 Ohio St.3d 487, 709 N.E.2d

484 (both victims stabbed in chest, their trousers removed, and shoes placed next

to bodies); State v. Williams (1995), 73 Ohio St.3d 153, 652 N.E.2d 721 (same gun

used to kill cab driver and assault truck driver); State v. Woodard (1993), 68 Ohio

St.3d 70, 623 N.E.2d 75 (carjacking attempt admissible to prove identity as to later

carjacking and murder); State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180

(similar strong-arm robberies against small businesses).

{¶ 89} Here, the similarities between the offenses are remarkable. Moore

and El-Okdi lived within a block of each other. Within a twelve-day period, both

were carjacked and kidnapped sometime between 7:30 and 8:30 p.m. In both cases,

the victims were robbed and taken in their older model cars to a remote area and

shot. Based on the bullets from the victims, and the shells from the scene, both

were shot by the same gun and the same type of bullets. Both Coley and Green

drove their victims’ cars after the carjackings using stolen license plates. Thus, the

trial court did not abuse its discretion. Cf. State v. Bey, 85 Ohio St.3d 487, 709

N.E.2d 484; State v. Williams, 73 Ohio St.3d 153, 652 N.E.2d 721. We reject

Green’s eleventh proposition of law.

{¶ 90} Off-the-record hearing. In his thirteenth proposition of law, Green

argues that the trial court erred by finding a witness competent to testify based on

an off-the-record hearing.

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{¶ 91} Contrary to Green’s claims, the trial court did not conduct an off-

the-record competency hearing. In October 1997, the state took Frusher’s

deposition. On February 25, 1998, during trial, Green moved to inspect Frusher’s

psychiatric records and for a judicial determination of her competency. The court

declined to order a hearing on Frusher’s competency, noting that Frusher had

seemed competent when the court had presided over her deposition. The defense

stressed that it needed access to Frusher’s medical records not to challenge her

competency, but to explore “her state of mind at the time she allegedly made these

observations” in the alley the night of El-Okdi’s murder.

{¶ 92} Later, the court noted that it had interviewed Frusher along with the

prosecutor and defense counsel off the record to ascertain “where she [was] treated”

and “whether or not she was willing to sign a Medical Information Release.” The

court noted that Frusher reluctantly signed a release. The parties agreed that

defense counsel could have access to the medical records before their cross-

examination. Then, before Frusher testified, the court noted that based on its

observations when Frusher was deposed and upon the court’s “off-the-record

interview of Ms. Frusher a half an hour or so ago, the Medical Information Release

and the course of the treatment * * * she is competent to testify.” Green did not

challenge that decision.

{¶ 93} Counsel consented to this informal procedure and apparently never

asked for the accused or a court reporter to be present. Defense counsel’s

agreement to this procedure and failure to request that the interview be recorded

waived all but plain error. See State v. Palmer, 80 Ohio St.3d at 554, 687 N.E.2d

at 696-697; State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d

1364. Moreover, a defendant’s absence from a witness competency hearing is not

a fatal error. Kentucky v. Stincer (1987), 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d

631. We reject Green’s thirteenth proposition of law.

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January Term, 2000

{¶ 94} Absence of accused during proceedings. In his fifteenth

proposition of law, Green argues that the trial court’s failure to secure Green’s

presence at various in-chambers conferences violated his rights to confrontation

and due process. Green was absent from a pretrial discussion regarding a

continuance, a jury view, and stipulations about evidence, from the interview with

Frusher about waiving her medical privilege, from a discussion over a continuance

request and possible exculpatory evidence, from a discussion over a continuance

request, police reports, hearsay, and defense efforts to locate witnesses, from a

discussion over scheduling, possible witnesses, and Frusher’s psychiatric records,

and from other discussions about Frusher’s medical records and scheduling.

{¶ 95} Green has a fundamental right to be present at all stages of his

criminal trial. Section 10, Article I, Ohio Constitution; Crim.R. 43(A). An

accused’s absence, however, does not necessarily result in prejudicial or

constitutional error.

{¶ 96} In Snyder v. Massachusetts (1934), 291 U.S. 97, 107-108, 54 S.Ct.

330, 333, 78 L.Ed. 674, 679, the court held that “the presence of a defendant is a

condition of due process to the extent that a fair and just hearing would be thwarted

by his absence, and to that extent only.” In United States v. Gagnon (1985), 470

U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486, the Supreme Court held that a

defendant’s absence from a hearing involving a juror, when counsel were present,

did not offend due process. See Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658,

96 L.Ed.2d 631 (no Due Process or Confrontation Clause violation when an

accused was excluded from a hearing on the competency of two child witnesses).

See, also, State v. Williams (1983), 6 Ohio St.3d 281, 285-287, 6 OBR 345, 348-

350, 452 N.E.2d 1323, 1329-1331; State v. Roe (1989), 41 Ohio St.3d 18, 27, 535

N.E.2d 1351, 1362. See, also, Fed.R.Crim.P. 43(c)(3) (accused need not be present

at “a conference or hearing upon a question of law”).

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{¶ 97} Although the number of Green’s absences from in-chambers

conferences is disturbing, the absences did not thwart a fair and just hearing.

Snyder, supra. Counsel were present and fully participated. At the conferences,

the panel never received testimony or evidence. Cf. State v. Taylor, 78 Ohio St.3d

at 24, 676 N.E.2d at 92. The discussions mostly involved legal issues within the

professional competence of counsel, not issues that Green must personally decide.

Cf. United States v. Brown (C.A.6, 1978), 571 F.2d 980, 987 (accused must

establish prejudice from absence at in-chambers conference); State v. White (1998),

82 Ohio St.3d 16, 26, 693 N.E.2d 772, 781 (accused’s absence during hearing on

proposed jury instructions did not deprive him of fair trial); State v. Williams, 6

Ohio St.3d at 285-287, 6 OBR at 348-350, 452 N.E.2d at 1329-1331.

{¶ 98} Moreover, Green’s counsel expressly waived Green’s presence at

these discussions. See United States v. Gagnon, 470 U.S. at 528, 105 S.Ct. at 1485,

84 L.Ed.2d at 491 (trial court “need not get an express ‘on the record’ waiver from

the defendant for every trial conference which a defendant may have a right to

attend”); United States v. Gallego (C.A.2, 1999), 191 F.3d 156, 171-172 (waiver

can be inferred from accused’s failure to object to exclusion); Polizzi v. United

States (C.A.2, 1991), 926 F.2d 1311, 1322-1323 (counsel can waive accused’s right

to be present); State v. Hill, 73 Ohio St.3d at 444, 653 N.E.2d at 281. Thus, we

reject the fifteenth proposition of law.

{¶ 99} Prosecutorial misconduct. In his sixteenth proposition of law,

Green argues that the prosecutor withheld exculpatory evidence, advised witnesses

not to talk to defense counsel, and improperly argued the case at both phases of the

trial.

{¶ 100} Exculpatory evidence. Despite Green’s claims, the state did not

violate Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, by

withholding exculpatory evidence. The evidence in question was a police report

on a prior domestic violence complaint by Penny Graves against Coley and certain

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pretrial statements by Tyrone Armstrong. Since the reports were “presented during

the trial [and not after the trial, as in Brady], there exists no Brady violation.”

(Emphasis sic.) State v. Wickline (1990), 50 Ohio St.3d 114, 116, 552 N.E.2d 913,

917; State v. Brown (1996), 112 Ohio App.3d 583, 595, 679 N.E.2d 361, 369.

{¶ 101} Moreover, these reports were neither material nor exculpatory.

Green has not met the Brady materiality test that “had the evidence been disclosed

to the defense, the result of the proceeding would have been different.” United

States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481,

494. See, e.g., State v. Lawson (1992), 64 Ohio St.3d 336, 343, 595 N.E.2d 902,

908; State v. Waddy (1992), 63 Ohio St.3d 424, 433, 588 N.E.2d 819, 827. The

panel declined to find that Green was the principal offender, and whether Coley

had previously misplaced a firearm or had admitted to shooting El-Okdi did not

negate Green’s complicity. Moreover, Armstrong’s testimony mostly related to

offenses against Moore to which Green pled guilty.

{¶ 102} Interference with access. Green argues that the state interfered with

defense access to witnesses by advising twelve-year-old Albert Quinn not to talk

with defense counsel before trial unless a prosecutor was present. However, Quinn

did not remember what was said or who said it. The state claims to have told Quinn

only that he did not have to talk with defense counsel if he did not want to do so.

See State v. Zeh (1987), 31 Ohio St.3d 99, 31 OBR 263, 509 N.E.2d 414, paragraph

one of the syllabus. Regardless of what was said, Green has not established

prejudice from any asserted constitutional violation. Green called Quinn as a

defense witness and had complete access to the witness at that time. Cf. State v.

Scudder (1994), 71 Ohio St.3d 263, 271-272, 643 N.E.2d 524, 531-532.

{¶ 103} Trial-phase argument. Green argues that the prosecutor

improperly argued Green’s guilt. However, “the touchstone of due process analysis

in cases of alleged prosecutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor.” Smith v. Phillips (1982), 455 U.S. 209, 219, 102

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S.Ct. 940, 947, 71 L.Ed.2d 78, 87. The Constitution does not guarantee “an error-

free, perfect trial.” United States v. Hasting (1983), 461 U.S. 499, 508, 103 S.Ct.

1974, 1980, 76 L.Ed.2d 96, 106.

{¶ 104} At trial, Green failed to object to the remarks he now complains

about. Thus, he waived all but plain error. State v. Wade, 53 Ohio St.2d 182, 7

O.O.3d 362, 373 N.E.2d 1244, paragraph one of the syllabus; Crim.R. 52(B).

Moreover, “[n]either alone nor in the aggregate did these [asserted] errors have an

arguable effect on the outcome of the trial.” State v. Slagle (1992), 65 Ohio St.3d

597, 605, 605 N.E.2d 916, 925.

{¶ 105} The prosecutor’s remarks about “senseless violence” or that

Green’s crimes were “heinous” were inconsequential. The prosecutor did not err

by arguing that the facts of the Moore crime showed prior calculation and design

for the El-Okdi murder. Evid.R. 404(B) permits proof of other acts to show “intent,

preparation [or] plan.” See discussion on Green’s eleventh proposition of law. Nor

did the prosecutor err by commenting on Green’s demeanor, body language, and

lack of any concern during trial. See, e.g., State v. Bey, 85 Ohio St.3d at 496-497,

709 N.E.2d at 495 (state can comment on accused’s emotional outburst during

argument); State v. Brown (1988), 38 Ohio St.3d 305, 317, 528 N.E.2d 523, 538

(state “may comment on the accused’s appearance”).

{¶ 106} The prosecutor properly argued that Frusher was a reliable witness

to the simple events she witnessed, that she lacked any motive to lie, and that her

testimony was not contradictory. The state did not improperly vouch for her as a

witness. Instead, the prosecutor argued facts to support Frusher’s credibility and

responded to defense attacks on her credibility and mental abilities. See, e.g., State

v. Goodwin, 84 Ohio St.3d at 339, 703 N.E.2d at 1260; State v. Woodard, 68 Ohio

St.3d at 76, 623 N.E.2d at 80.

{¶ 107} The prosecutor’s comment that if Green “wanted to take your car

from you he would not hesitate in killing you to take it,” was simple hyperbole that

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can be disregarded. Likewise, the prosecutor’s brief comment about what El-Okdi

was thinking as she lay dying was improper but not prejudicial. Cf. State v. Combs

(1991), 62 Ohio St.3d 278, 282-283, 581 N.E.2d 1071, 1076-1077; State v.

Wogenstahl, 75 Ohio St.3d at 357-360, 662 N.E.2d at 322-324. Finally, “[j]udges

are trained and expected to disregard any extraneous influences in deliberations.”

State v. Davis (1992), 63 Ohio St.3d 44, 48, 584 N.E.2d 1192, 1196. Accord State

v. Post, 32 Ohio St.3d at 384, 513 N.E.2d at 759.

{¶ 108} Penalty phase. The prosecutor did not err by asking the defense

psychologist, Dr. Jolie Brams, if the antisocial personality disorder classification

also encompassed psychopaths and sociopaths. The question and Dr. Brams’s

affirmative answer merely provided a context for her opinions. Green’s failure to

object waived all but plain error. State v. Williams, 51 Ohio St.2d 112, 5 O.O.3d

98, 364 N.E.2d 1364.

{¶ 109} Further, Green argues that the prosecutor’s sentencing argument

stressed the manner of killing, pointed to the lack of justification, and exaggerated

the relatively minor role Green played in killing El-Okdi. Green’s failure to object

waived these issues. State v. Wade, 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d

1244, paragraph one of the syllabus; Crim.R. 52(B).

{¶ 110} Moreover, “[p]rosecutors can urge the merits of their cause and

legitimately argue that defense mitigation evidence is worthy of little or no weight.”

State v. Wilson (1996), 74 Ohio St.3d 381, 399, 659 N.E.2d 292, 309. See, also,

State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph two

of the syllabus. As we noted in State v. Hill (1996), 75 Ohio St.3d 195, 200, 661

N.E.2d 1068, 1075, “both the criminal and his crime are properly considered in

determining the propriety of imposing a death sentence.” (Emphasis sic.) The facts

are relevant in determining whether the nature and circumstances of the offense are

mitigating. State v. Lorraine (1993), 66 Ohio St.3d 414, 420, 613 N.E.2d 212, 218.

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See, also, State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one

of the syllabus.

{¶ 111} Finally, misconduct by the prosecutor did not permeate the trial.

Considering all the circumstances, Green received a fair trial. Cf. State v. Hill, 75

Ohio St.3d at 201-202, 661 N.E.2d at 1076-1077; State v. Landrum, 53 Ohio St.3d

at 110, 559 N.E.2d at 718. We reject Green’s sixteenth proposition of law.

{¶ 112} Advice on right to testify. In his seventeenth proposition of law,

Green argues that the trial court violated Green’s constitutional rights by failing to

ask Green whether he knew he had a right to testify and inquire whether “he

knowingly, intelligently and voluntarily waives that right.” However, “a trial court

is not required to conduct an inquiry with the defendant concerning the decision

whether to testify in his defense.” (Emphasis sic.) State v. Bey, 85 Ohio St.3d at

499, 709 N.E.2d at 497. Accord State v. Madrigal (2000), 87 Ohio St.3d 378, 398,

721 N.E.2d 52, 71; State v. Filiaggi, 86 Ohio St.3d at 240-241, 714 N.E.2d at 877.

As in Bey, nothing in the record suggests that Green “wanted to testify and was

denied the opportunity to do so.” 85 Ohio St.3d at 500, 709 N.E.2d at 497. We

reject Green’s seventeenth proposition of law.

{¶ 113} Ineffective assistance of counsel. In his eighteenth proposition of

law, Green argues that his counsel provided ineffective assistance both before and

during the trial. Reversal of convictions on ineffective assistance requires that the

defendant show, first, that counsel’s performance was deficient and, second, that

the deficient performance prejudiced the defense so as to deprive the defendant of

a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674, 683. Accord State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373.

{¶ 114} Green argues that his attorneys did not advise him about certain

rights. Since the record does not reflect what Green’s counsel advised him, we are

unable to determine whether Green’s attorneys failed to advise him about the

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differences between a jury and panel trial, his right to be present at in-chambers

conferences, his right to testify, or his right to allocution. The record also does not

show that counsel failed to adequately prepare for trial. We summarily reject these

claims. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d

500, paragraph one of the syllabus (reviewing court cannot decide appeal based on

matters not in the record); State v. Williams, 73 Ohio St.3d at 160, 652 N.E.2d at

728 (same).

{¶ 115} Second, Green has not demonstrated that his counsel’s performance

fell “below an objective standard of reasonable representation.” State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. “[A] court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065,

80 L.Ed.2d at 694.

{¶ 116} Counsel need not raise issues lacking merit. State v. Hill, 75 Ohio

St.3d at 211, 661 N.E.2d at 1083. Since Green was brought promptly before a

magistrate, counsel cannot be faulted for failing to claim otherwise. Similarly,

since there was no off-the-record competency evaluation of Frusher, counsel were

not required to raise the nonexistent evaluation as an issue. Counsel need not raise

weak claims of prosecutorial misconduct. Ohio’s statutory “reasonable doubt”

definition is proper, as was the admission of trial-phase evidence into the penalty

phase. Counsel need not challenge such decisions. See State v. DePew, 38 Ohio

St.3d 275, 528 N.E.2d 542, paragraph one of the syllabus, and discussion on

Green’s other propositions of law.

{¶ 117} We cannot find counsel ineffective for failing to challenge Judge

Bowman because he presided over the ex parte hearing regarding Tyrone

Armstrong. It is possible that counsel wanted Judge Bowman to sit even though he

had participated in a pretrial hearing under Crim.R. 16(B)(1)(e). Finally, counsel’s

argument, in support of an acquittal on the “principal offender” element, that the

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state failed to prove intent to kill could have perhaps been clearer, but that does not

constitute deficient performance. In sum, counsel acted within their reasonable

professional judgment.

{¶ 118} Green also complains that counsel should have objected to the

panel’s finding on the R.C. 2929.03(A)(7) death specification and to the victim-

impact statements. Our disposition vacating the death penalty and remanding the

cause renders those issues moot. We reject Green’s eighteenth proposition of law.

VIII

Constitutional Issues

{¶ 119} In his nineteenth proposition of law, Green argues that his rights

were violated because of Ohio’s statutory definition of reasonable doubt. However,

nothing in the record demonstrates that the three-judge panel relied upon a

constitutionally deficient standard. Moreover, Ohio’s statutory definition of

reasonable doubt is constitutional. See State v. Lundgren (1995), 73 Ohio St.3d

474, 493, 653 N.E.2d 304, 323; State v. Van Gundy (1992), 64 Ohio St.3d 230, 594

N.E.2d 604. Accord Victor v. Nebraska (1994), 511 U.S. 1, 114 S.Ct. 1239, 127

L.Ed.2d 583. We reject Green’s nineteenth proposition of law.

{¶ 120} We summarily reject Green’s twentieth proposition of law, which

challenges the constitutionality of Ohio’s death penalty statute. See State v.

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

(1997), 80 Ohio St.3d 89, 684 N.E.2d 668, paragraph one of the syllabus; State v.

Goodwin, 84 Ohio St.3d at 349-350, 703 N.E.2d at 1267.

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IX

Sentence Appropriateness

{¶ 121} Green’s sixth proposition of law, which argues that the death

penalty is not warranted in his case, is mooted by our disposition. Our sentence

evaluation and issues of proportionality are also mooted.

X

Disposition

{¶ 122} We affirm each of Green’s convictions and the sentences on the

noncapital offenses. We reverse the sentence of death and remand the cause for

further proceedings consistent with this opinion. See State v. Davis, 38 Ohio St.3d

361, 528 N.E.2d 925.

Judgment affirmed in part,

reversed in part

and cause remanded.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur.

COOK and LUNDBERG STRATTON, JJ., concur separately.

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

DOUGLAS, J., concurs in part and dissents in part.

DOUGLAS and RESNICK, JJ., dissent.

__________________

COOK, J., concurring.

{¶ 123} I agree with the majority’s decision to vacate Green’s death

sentence and to remand the cause to the trial court. I write separately to (1) bolster

the record support for the allocution decision in Part II of the majority opinion and

(2) disagree with the language in Part V that suggests that trial courts must

explicitly reject, in sentencing opinions, all inadmissible evidence.

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1

{¶ 124} In Part II, the majority cites a portion of the sentencing-phase

transcript and determines that when the panel asked Green if there was anything he

wished to say “with regard to those offenses,” the context of that question

“suggests that the court may have solicited comment only on the noncapital

offenses.” (Emphasis added.) A review of the sentencing-phase transcript as a

whole confirms, without a doubt, that the panel never invited Green to speak on his

own behalf or present information in mitigation of punishment for the capital

offenses in this case.

{¶ 125} The transcript shows that the panel retired to consider the

aggravating and mitigating circumstances at 5:18 p.m. Later that evening, the panel

returned to announce its verdict and sentence Green. First, the panel noted that it

had previously found Green guilty of the aggravated murder charges and

accompanying capital specifications in Counts 4, 5, and 6. The panel then noted

that it had previously found Green guilty of the noncapital offenses in Counts 1, 2,

3, 7, 8, 9, 10, and 11. The panel’s next statement, not cited by the majority, was

the following: “Proceeding then with the non-capital sentencing first, then, this

panel inquires whether the Defendant has any objection to accelerating sentencing

as to Counts 1, 2, 3, 9 and 11 [noncapital offenses] from the regularly scheduled

date, which was tomorrow, March 12, 1998 at 10 a.m.” (Emphasis added.)

{¶ 126} When counsel did not object, the panel asked Green whether there

was anything he wished to say in regard to “those counts” (the noncapital counts it

had just referred to—Counts 1, 2, 3, 9, and 11) “as well as on Counts 7, 8 and 10”

(also noncapital counts). The panel then heard over fifteen transcript pages of

victim-impact testimony and imposed sentence for all of the noncapital counts and

specifications. Immediately after imposing sentence for the noncapital offenses,

the panel launched into sentencing on the capital counts—Counts 4, 5, and 6—

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without ever asking Green whether there was anything he wished to say in regard

to those offenses.

2

{¶ 127} In Part V, citing our Huertas, Goodwin, and Fautenberry cases, the

majority correctly determines that the trial court erred when it permitted Moore and

his family members to express their opinions about how Green should be punished

for the offenses against El-Okdi. Because Green did not object, I agree with the

majority’s decision to apply a plain-error analysis. I disagree, however, with the

majority’s instruction to the trial court on remand to “clarify whether or not they

considered such expressions of opinion from others as to what the sentence should

be in this case.” (Emphasis added.) The imposition of such a requirement here

could be miscontrued in future cases to be a statement by this court that plain error

exists whenever a trial court fails to state expressly that it ignored improper

testimony.

{¶ 128} As the majority notes, we may presume that trial judges do not rely

on inadmissible expressions of opinion. This presumption relieves trial courts of

the duty to discount expressly every sort of improperly admitted testimony in their

sentencing opinions. By requiring the trial court to clarify whether it considered

the improper testimony in this case, the majority undercuts the very presumption

that it cites.

LUNDBERG STRATTON, J., concurs in the foregoing concurring opinion.

__________________

DOUGLAS, J., concurring in part and dissenting in part.

{¶ 129} I respectfully dissent from the second paragraph of the body of the

majority opinion and Parts II, IV, V, IX and, in part, Part X of the opinion. I do so

because I believe that the pronouncements of the three-judge panel, while both

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wrong and intemperate in places,2 were substantially accurate overall and the

judgments rendered by the panel should be affirmed.

{¶ 130} I respectfully concur in the remainder of the majority opinion.

Accordingly, I would affirm in all respects the judgments of the three-judge trial

panel.

__________________

ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.

{¶ 131} I would affirm in toto the judgment of the trial court, including

Green’s death sentence. I do not agree with the majority’s conclusion that Green’s

right of allocution was violated.

{¶ 132} Although the majority opinion sets forth much of the exchange that

took place between the trial court and Green’s attorneys prior to sentencing, that

exchange is detailed more fully below to support my view that Crim.R. 32 was not

violated:

“The Court: All right. Is there anything with regard to those offenses,

Counsel or Mr. Green, prior to the Court passing sentence on both those counts as

well as on Counts 7, 8 and 10?

“Mr. Cameron [defense counsel]: Anything we wish to say?

“The Court: Yes.

2. As examples, the panel’s opinion, in discussing State v. McGuire (1997), 80 Ohio St.3d 390, 686

N.E.2d 1112, says that “[i]n the syllabus to that opinion, the 7-2 majority of the Supreme Court

states * * *.” (Emphasis added.) There are, of course, a total of only seven justices on the Supreme

Court of Ohio—not nine. Also, the two justices to which the opinion of the three-judge panel refers,

did, in fact, concur with the judgment of the majority.

Further, in continuing to discuss McGuire, the opinion of the three-judge panel says that

“[t]his bright-line rule—overruling earlier decisions—in the view of this panel is wrongheaded to

the point where one day its blind application will almost surely result in the execution of an innocent

defendant.” (Emphasis added.) At least five members of this court respectfully disagree with the

three-judge panel. That is just how our system works. Judges should be able to disagree, agreeably.

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“Mr. Wingate [defense counsel]: The only thing that we would add, Your

Honor, is that it’s my understanding of the law that—that if the firearm

specification which is attendant to those counts arose out of the same transaction

and met that format, then there would be one firearm, which would mean there

would be one 3-year sentence that would be attendant to those charges, and we just

ask the Court—

“The Court: I believe I already indicated that, but that’s our finding.

“Mr. Wingate: All right. Then nothing further.” (Emphases added.)

{¶ 133} I have little quarrel with the legal standards set forth in the majority

opinion regarding the importance of the right of allocution and the need to adhere

to the requirements of Crim.R. 32. However, as the above discourse unmistakably

illustrates, the record makes clear that this defendant was “issued a personal

invitation to speak prior to sentencing,” and that this defendant chose not to take

advantage of the unambiguous opportunity to make a statement. See Green v.

United States (1961), 365 U.S. 301, 305, 81 S.Ct. 653, 655, 5 L.Ed.2d 670, 674.

{¶ 134} The trial court explicitly addressed “Mr. Green,” as well as trial

counsel, before sentence was passed. As demonstrated by the trial court’s response

to Mr. Cameron’s clarifying question, this was an invitation to “Mr. Green” to say

anything he wished to say. After Mr. Wingate made a comment and Green did not

say anything, then Mr. Wingate explicitly stated “nothing further.” From the

context of the entire dialogue, there should be no question that the declaration

“nothing further” should be fairly interpreted as a clear indication by counsel that

Green had no desire to make his own statement.

{¶ 135} Because I strongly disagree with the majority’s statement that

“[t]he record demonstrates a clear violation of Crim.R. 32,” I respectfully dissent.

DOUGLAS, J., concurs in the foregoing opinion.

__________________

41