State v. Hartman

[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 274.]

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

[Cite as State v. Hartman, 2001-Ohio-1580.]

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

(No. 98-1475—Submitted June 20, 2001—Decided October 3, 2001.)

APPEAL from the Court of Common Pleas of Summit County, No. CR97-09-1987.

__________________

LUNDBERG STRATTON, J.

{¶ 1} In this appeal, defendant-appellant, Brett X. Hartman, raises thirteen

propositions of law. Finding none meritorious, we affirm his convictions. We have

also independently weighed the aggravating circumstance against the mitigating

factors and compared his sentence to those imposed in similar cases, as R.C.

2929.05(A) requires. As a result, we affirm defendant’s convictions and sentence

of death.

{¶ 2} Defendant met Winda Snipes at a bar in Akron, Ohio, sometime

during 1997. Subsequently, they engaged in sexual intercourse on several

occasions. During the late afternoon of September 9, 1997, defendant went to

Snipes’s apartment and brutally murdered her by tying her to the bed, stabbing her

one hundred thirty-eight times, slitting her throat, and cutting off her hands.

{¶ 3} Defendant was convicted of aggravated murder, kidnapping, and

tampering with evidence, and sentenced to death. In order to establish defendant’s

guilt, the state introduced statements defendant had made to the police and to a

fellow inmate in jail, and the testimony of a co-worker that defendant mentioned

cutting off a victim’s hands as a way to eliminate evidence in the O.J. Simpson

case. The state also introduced as evidence defendant’s bloody tee-shirt and

Snipes’s watch recovered from defendant’s apartment, and forensic testimony

linking defendant to the murder.

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State’s case

{¶ 4} Around 2:20 a.m. on September 9, 1997, defendant met Snipes at the

Bucket Shop, an Akron bar. Defendant kissed Snipes on the cheek and they talked.

Thereafter, defendant and Snipes left the bar and they went to her apartment across

the street.

{¶ 5} Around 3:00 a.m., David Morris, an acquaintance of defendant and

Snipes, left the Inn Between, another Akron bar. While walking past Snipes’s

apartment on his way home, Morris observed Snipes and defendant through the

upstairs window of her apartment. Morris testified that Snipes was yelling at

defendant about touching stuff that was not his. Defendant closed the window

blinds and “obviously she wasn’t very happy about it” because she “scolded” him

and reopened the blinds.

{¶ 6} That afternoon, at around 4:30 p.m., Snipes was observed crossing a

street in a nearby business district. She was never seen alive again.

{¶ 7} Defendant had the day off from work on September 9. According to

Richard Russell, a bartender at the Inn Between, defendant entered the bar at around

8:00 p.m. and appeared nervous and hyper, and talked excessively. Thereafter,

defendant was in and out of the bar five to six times between 9:00 and 10:30 p.m.

{¶ 8} Defendant first contacted the police on September 9 with a series of

anonymous 911 calls, which he later admitted to. His first 911 call at 9:59 p.m.

reported the location of a mutilated body. The police officers dispatched to

Snipes’s address entered Snipes’s apartment building and checked around, but left

after finding nothing unusual. Meanwhile, defendant viewed the police unit’s

arrival and departure while hiding behind a tree across the street. Defendant then

made another 911 call telling the police to return to the apartment building and

provided further instructions on the body’s location.

{¶ 9} Akron police officers responding to this call entered Snipes’s

unlocked apartment and found her naked, mutilated body lying on the bedroom

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floor. Snipes’s leg was draped across the bed, a pair of pantyhose tied her ankle to

the bed leg, and a white plastic chair was on top of her body. Snipes’s hands were

cut off and have never been found.

{¶ 10} Around 10:45 p.m., defendant was at the Inn Between with Morris,

while police units were across the street investigating Snipes’s murder. Morris,

having learned that Snipes had been murdered, suggested to defendant that he

should talk to the police, since Morris had observed defendant at Snipes’s apartment

the previous evening.

{¶ 11} Shortly before midnight, defendant approached Detective Gregory

Harrison while he was at a mobile crime lab parked outside Snipes’s apartment.

Defendant walked up to Harrison and said, “I hear it’s pretty bad in there,” and

asked if Harrison had “ever seen anything so gruesome.” Later that evening,

defendant approached Harrison a second time and spontaneously mentioned that

Snipes was a whore, “that she slept around a lot,” and that “he had slept with her *

* * and he had even slept with her the night before at 3:00.” In their final contact

at around 3:00 a.m., defendant was “kind of mumbling to himself” and Harrison

heard defendant say that “she was a whore, she was a big whore, she got what she

deserved.”

{¶ 12} Between 11:30 p.m. and 12:15 a.m., defendant also approached

Akron Police Lt. John A. Lawson near the murder scene and, “rather abruptly said,

‘You’re going to find my semen in her and my prints over there.’ “ When Lawson

asked why, defendant said he “had been with her earlier that morning, the morning

of the 9th,” and that he had had sex with her.

{¶ 13} At 12:15 a.m. on September 10, defendant spoke to Detective Joseph

Urbank in front of the apartment building. Defendant began their conversation by

announcing that “he had sex with the victim the night before.” Moreover, defendant

said he did not know her name but “only knew her as psycho bitch and that

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everybody knew that if you got drunk and were horny you went to go see her, you

went to go see psycho bitch.”

{¶ 14} Defendant also told Urbank that he went to Snipes’s apartment at

2:30 a.m. on September 9, and “she started dancing a little bit.” He “lifted her onto

the bed, undressed her,” and “they started having vaginal intercourse.” Defendant

said that he was disappointed because Snipes refused to have anal intercourse, and

he left her apartment around 3:30 a.m. However, defendant claimed that he did not

know anything about the murder until the bartender at the Inn Between told him

about it on the evening of September 9.

{¶ 15} Around 6:00 a.m. on September 10, police took defendant to the

Akron police station, where he was interviewed by Lawson and Urbank. During

his interview, defendant denied making the 911 calls, and denied hiding behind a

tree across from Snipes’s apartment. Then, defendant changed a part of his story

and admitted hiding behind a tree near the murder scene.

{¶ 16} Following the September 10 police interview, the police searched

defendant’s apartment with his consent. The police seized defendant’s bloody tee-

shirt from underneath the headboard of his bed, a pair of his jeans, and his boots.

Police found a knife on his dresser and Snipes’s wristwatch on defendant’s bed

stand.

{¶ 17} Police took defendant to the police station after the search of his

apartment. While awaiting transfer to the Summit County Jail, defendant

approached Detective John R. Gilbride and blurted out, “I was the one that called

the police” and “I’m the one that found the body.”

{¶ 18} Defendant told Gilbride he had been sexually involved with Snipes

since February 1997, and had sexual intercourse with Snipes during the early

morning hours of September 9. Defendant stated that “after having sex the psycho

bitch threw him out of the apartment stating that her boyfriend was coming over.”

He left around 3:30 a.m. and returned to his own apartment.

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{¶ 19} According to Gilbride, defendant said that he slept until 6:00 p.m.

on September 9, and then took the bus to the Inn Between bar around 7:30 p.m.

Gilbride testified that while going into the Inn Between bar, defendant noticed a

light on in Snipes’s apartment and decided to visit her. According to Gilbride,

defendant gained entry to the apartment through an unlocked door and claimed that

he found her dead body in her bedroom. Defendant said that he unsuccessfully

tried to pick her body off the floor, noticed that her hands had been cut off, and

“freaked out.” Thinking “I’m going to get busted for this,” defendant washed her

blood off his hands and clothes, tried wiping down everything he touched, removed

evidence linking him to her apartment, and went home.

{¶ 20} Snipes was stabbed one hundred thirty-eight times. Bruising on her

ankles indicated that she was alive when she was tied to the bed. Additionally,

sperm was found in her vagina and anus. The medical examiner concluded that

Snipes had died from strangulation and a slit throat either in the late afternoon or

early evening of September 9.

{¶ 21} Police found defendant’s bloody fingerprint on the leg of the white

chair draped over Snipes’s body, and police found another of defendant’s

fingerprints on Snipes’s bedspread. An expert witness testified that the long linear

blood patterns found on defendant’s tee-shirt and Snipes’s bedspread were applied

by a long-bladed knife. Further, the blood patterns found on defendant’s tee-shirt

were applied while the tee-shirt was lying flat, and not while defendant was wearing

it.

{¶ 22} At trial, the prosecution introduced a set of defendant’s knives,

including a meat cleaver, a knife, and a knife sharpener that defendant kept at the

Quaker Square Hilton, where he worked as a chef.

{¶ 23} Christopher Hoffman, a Hilton co-worker, testified that he talked to

defendant in August 1997 about the O.J. Simpson trial. According to Hoffman,

defendant said that Simpson could have disposed of evidence against him by cutting

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off the victim’s hands and eliminating “fibers and hair and skin that might be found

on the fingernails.”

{¶ 24} Bryan Tyson, a fellow inmate at the Summit County Jail, testified

that during a jailhouse conversation, defendant admitted that he had killed Snipes.

According to Tyson, defendant said that “he pushed himself on her, something in

his mind snapped, she was hitting him, he lost his temper, did things he regretted,

killed her.” Then, defendant said that he had “tried to make it look like a burglary,”

admitted cutting off Snipes’s hands, and mentioned a hacksaw, and jokingly said “

‘Don’t leave home without it,’ like the credit card commercial.”

Defense case

{¶ 25} Jessica O’Neill, an acquaintance of defendant, talked on the phone

with defendant on September 9. Phone records showed that O’Neill called

defendant’s apartment and spoke with him at 3:12 p.m. and 4:50 p.m. She also

claimed that she talked with defendant on the phone around 6:30 or 7:00 p.m.

{¶ 26} The defense also introduced evidence suggesting an alternative

suspect, Jeff Nichols. Nichols lived across the hallway from Snipes’s apartment

until he moved out of his apartment around September 1, 1997. Nichols worked as

a handyman for the apartment building and had access to the landlord’s keys to

other apartments.

{¶ 27} In January 1997, Jeffrey Barnes, a friend of Snipes, was visiting

Snipes’s apartment when Nichols came to her door. According to Barnes, Nichols

“got up right to her door and then he said, ‘Slit the bitch’s throat, cut her up,’ and

called her a slut and all other kind of vulgar names.” Barnes reported this incident

to the police upon hearing about Snipes’s murder.

{¶ 28} On an evening prior to September 1, 1997, Linda Zarski, a neighbor

in Snipes’s apartment building, heard Snipes pounding on Nichols’s door and

screaming that she wanted her shirt.

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{¶ 29} On another occasion prior to the murder, Linda Kinebrew, a

neighbor living at the apartment, “heard [Nichols] arguing, telling [Snipes] to let

him in and she wouldn’t.”

{¶ 30} Carol Parcell, defendant’s mother, provided an alibi. Defendant

lived at his mother’s apartment, and Parcell claimed that when she came home on

September 9 at 6:15 p.m., her son was sleeping in his bedroom. According to

Parcell, defendant woke up at 7:00 p.m., got ready, left the apartment at 7:30 p.m.,

and returned to the apartment around 8:15 p.m.

{¶ 31} Defendant testified on his own behalf. He admitted having sex with

Snipes several times over the past year and during the early morning hours of

September 9 when he was at Snipes’s apartment. After having sex, defendant

returned to his apartment at about 3:30 a.m., slept until 6:15 p.m., left his apartment

at 7:35 p.m., and returned to the Inn Between bar.

{¶ 32} Before reaching the Inn Between, defendant noticed that Snipes’s

bathroom light was on at her apartment, and he decided to visit her to see if he could

“get laid.” Defendant entered Snipes’s apartment through an unlocked door and

found her mutilated body in the bedroom. Defendant tried to “get her up and put

her on the bed * * * to see if there was anything else I could help with.”

{¶ 33} Defendant “freaked out” after noticing Snipes had no hands and

realized he “could get in a lot of trouble” if he was placed at the scene. Thus, he

washed her blood off his hands, wiped down the cupboards, chair handles, and

anything else he might have touched, gathered whatever items he could find that

belonged to him, and left Snipes’s apartment. Defendant “ran home” and threw the

items taken from Snipes’s apartment into a nearby dumpster. Upon arriving home,

defendant changed his shoes and hid the bloody tee-shirt so that his mother would

not find it.

{¶ 34} Thereafter, defendant hurried back to the Inn Between bar and

started drinking. When he was “semi-intoxicated,” defendant made the

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anonymous 911 calls reporting the location of Snipes’s body, admitted standing

behind a tree watching the police arrive at Snipes’s apartment, and later approached

the police to report that he had been at the apartment the previous evening.

{¶ 35} Defendant introduced photographs taken of his naked body

following his arrest to show the absence of bruises and injuries. Defendant

explained that a cut on his elbow had occurred at work while he was moving crates.

{¶ 36} Defendant acknowledged talking with Chris Hoffman about the O.J.

Simpson case but did not recall discussing anything about cutting off a victim’s

hands.

{¶ 37} Defendant knew Tyson as a fellow inmate but denied making any

jailhouse admissions that he murdered Snipes.

Trial result

{¶ 38} The grand jury indicted defendant on two counts of aggravated

murder, including one count of murder with prior calculation and design and one

count of felony murder. A capital specification relating to murder during a

kidnapping was included in the felony murder count. He was also charged with

kidnapping and tampering with evidence.

{¶ 39} The jury found defendant guilty of all offenses and recommended

death for Snipes’s murder. The trial court sentenced defendant to ten years for

kidnapping, five years for tampering with evidence, and death for the aggravated

murder of Snipes.

{¶ 40} Defendant now directly appeals to this court as a matter of right.

Sufficiency of the evidence

{¶ 41} In proposition of law I, defendant challenges the sufficiency of the

evidence for the aggravated felony murder, the capital specification, and the

separately charged kidnapping offense, all on the basis that the state had failed to

prove kidnapping.

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{¶ 42} In reviewing a record for sufficiency, “[t]he relevant inquiry 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.

{¶ 43} The capital specification that defendant was convicted of was

kidnapping: “committing, attempting to commit, or fleeing immediately after

committing or attempting to commit kidnapping.” R.C. 2929.04(A)(7). Defendant

was also convicted of the separate offense of kidnapping Snipes. R.C. 2905.01, as

charged in this case, prohibits using force, threat, or deception to remove a person

from the place where she is found or restrain her liberty for purpose of facilitating

the commission of a felony or flight thereafter, to terrorize or inflict serious physical

harm, or to engage in sexual activity against her will. R.C. 2905.01(A)(2), (3) and

(4).

{¶ 44} Defendant argues that in view of State v. Logan (1979), 60 Ohio

St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, the state failed to present sufficient

evidence of either the elements of kidnapping or an animus separate from the

aggravated murder to sustain his convictions on these charges.

{¶ 45} In Logan, we held that where murder is the underlying crime, “a

kidnapping in facilitation thereof would generally constitute a separately

cognizable offense.” Id. at 135, 14 O.O.3d at 379, 397 N.E.2d at 1352. However,

the test to determine whether the kidnapping was committed with a separate animus

so as to support a separate conviction is whether “the restraint or movement of the

victim is merely incidental to a separate underlying crime” or, instead, whether it

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has a “significance independent of the other offense.” Id. at syllabus; see, also,

State v. Simko (1994), 71 Ohio St.3d 483, 488, 644 N.E.2d 345, 351.

{¶ 46} In State v. Seiber (1990), 56 Ohio St.3d 4, 564 N.E.2d 408, we found

kidnapping where the defendant and his accomplice entered a bar with guns drawn,

blocked the exit, and repeatedly ordered bar patrons to lie on the floor. The

defendant then spent several minutes roaming the bar, threatening to kill several

people. When one of the patrons refused to comply with the demands, the

defendant shot and killed him. Under these facts, we held in Seiber that a jury could

reasonably conclude that the defendant had restrained the murder victim of his

liberty and that this evidence was sufficient to support the kidnapping charge.

{¶ 47} Here, the facts present more compelling evidence of kidnapping than

in Seiber. Defendant tied Snipes to the bed, gagged her, stabbed her one hundred

thirty-eight times, slit her throat, and strangled her to death. Moreover, bruising on

Snipes’s ankles established that she was alive when she was tied to the bed.

{¶ 48} The evidence therefore shows that Snipes’s kidnapping, i.e., the

restraint, was completed prior to her murder and that the restraint was not merely

incidental to her murder. Therefore, the prosecution presented sufficient evidence

to prove not only kidnapping, but also an animus for kidnapping separate from

Snipes’s aggravated murder. Accordingly, we reject proposition I.

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Trial issues

{¶ 49} Other acts evidence. In proposition of law III, defendant argues that

the trial court erred in admitting “other acts” evidence in three instances.

{¶ 50} First, defendant claims that the trial court erred by permitting

testimony about knives and the introduction of knives that were never connected to

the murder. However, defendant’s failure to object to this evidence at trial waived

all but plain error. State v. Childs (1968), 14 Ohio St.2d 56, 62, 43 O.O.2d 119,

123, 236 N.E.2d 545, 549. See, also, State v. Greer (1988), 39 Ohio St.3d 236,

244, 530 N.E.2d 382, 394, applying the waiver rule to capital cases.

{¶ 51} The admission of defendant’s knives rested upon a question of

relevancy. Evid.R. 401 provides: “ ‘Relevant evidence’ means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court. See State v. Sage (1987), 31 Ohio St.3d 173, 31

OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.

{¶ 52} The police went to the Quaker Square Hilton where defendant

worked as a chef and seized a set of knives belonging to him. At trial, the

prosecutor introduced into evidence defendant’s cutlery set consisting of a knife

sharpener, a high carbon knife, and a meat cleaver.

{¶ 53} The admission of defendant’s knives showed defendant’s easy

access to a possible murder weapon and his familiarity with using knives. Such

evidence was particularly relevant, since Snipes was stabbed one hundred thirty-

eight times, her throat was slit, and her hands were cut off.

{¶ 54} Moreover, the medical examiner’s testimony suggested that the

assailant probably knew what he was doing when he cut off the victim’s hands. He

pointed out that this “disarticulation is such that there is a cut right at the end of the

bone, radius bone, * * * and the cut is such that bone itself was not sawed or cut.

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There are ligaments in this area so that one can cut across the ligaments and the

hand can be removed with just [a] few incisions.”

{¶ 55} Thus, defendant’s ownership of a set of knives and his familiarity

and use of knives at work were relevant considering the surgical precision of the

removal of Snipes’s hands. Therefore, we reject any claim that this evidence

constituted plain error.

{¶ 56} Defendant next claims that the trial court erred by allowing

testimony about his prior DUI convictions. Detective John Gilbride was present

when defendant was being held at the police station on September 10 awaiting

transport to the county jail. Defendant and Gilbride began to talk. The prosecutor

asked Gilbride the following question on direct examination:

“Q. Okay. So, then, what did he tell you about the morning of September

8th?

“A. He stated on the morning of September 8th he left his home to go to

work at the Quaker Square Hilton. He states that he’s a cook at that establishment

and on this day he was working from nine to five.

“He states he rides the bus to and from work due to a previous DUI.”

{¶ 57} However, the defense counsel failed to object to this evidence at

trial, and waived all but plain error. State v. Childs, 14 Ohio St.2d at 62, 43 O.O.2d

at 123, 236 N.E.2d at 549.

{¶ 58} Moreover, we find that this evidence supported the defense theory

of the case and that any error was harmless. In his testimony, defendant emphasized

that he was a heavy drinker and consumed large amounts of alcohol on September

8 and 9. Further, defendant testified that he had several DUIs and had actually lost

his driver’s license as a result.

{¶ 59} Defendant testified that his intoxication explains his behavior. For

example, his intoxication explained why he approached police at the murder scene.

According to defendant, “I started thinking that I was drunk when I was there [in

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Snipes’s apartment] and I was drunk that morning before, there’s places that I

touched all over the place that I don’t remember; so I figured eventually they would

find my fingerprints there.”

{¶ 60} Here, defendant’s admitted history of alcohol abuse, including his

admission of having previous DUIs, was presented as an important part of his

defense. Thus, Gilbride’s testimony about defendant’s DUI was not plain error.

{¶ 61} Finally, defendant claims that the trial court erred by allowing

testimony that he had blood on his boots because he “face stomped” a black man

six months before.

{¶ 62} The police found boot marks in Snipes’s kitchen and bathroom and

seized defendant’s boots at the police station. When they took his boots, defendant

asked, “What are they looking for, DNA?” Urbank said yes, and asked, “Would

there be any reason that there would be any blood or hair on your boots?”

Defendant said no, “except that he faced stomped a black guy six months ago.”

{¶ 63} Since defendant did not object to this testimony, the defense waived

all but plain error. Id. We find no plain error because of the compelling evidence

of guilt. Moreover, this evidence was properly admitted because it demonstrated

that defendant was concerned that the police would find blood on his shoes and he

was trying to provide an alternate explanation.

{¶ 64} 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.

{¶ 65} Defendant changed his stories to police concerning his whereabouts

and activities as the evidence mounted pointing to him as the murderer. For

example, defendant initially denied hiding behind the tree across from Snipes’s

apartment and denied making the 911 calls to the police. But as evidence of his

guilt mounted, he admitted doing both. In a similar vein, defendant’s claim that he

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“face stomped” a black man appears as a farfetched explanation to further deflect

police suspicion that he killed Snipes. Such evidence helped to establish

defendant’s consciousness of guilt and was properly admitted. See State v. Richey

(1992), 64 Ohio St.3d 353, 357, 595 N.E.2d 915, 921; State v. Tibbetts (2001), 92

Ohio St.3d 146, 161, 749 N.E.2d 226, 249.

{¶ 66} In conclusion, we find that the trial court did not commit plain error,

and reject this proposition.

{¶ 67} Fingerprint evidence. In proposition of law IV, defendant

challenges the admission of digitally enhanced fingerprint evidence. First,

defendant claims that Patrick Warrick, the state’s fingerprint expert, lacked the

necessary expert qualifications to testify regarding such evidence. Second,

defendant attacks the reliability of digitally enhanced fingerprint evidence.

{¶ 68} Patrick Warrick, a fingerprint examiner from the King County

Sheriff’s Office in Seattle, Washington, testified that by using digitally enhanced

imaging, he concluded that a fingerprint found on Snipes’s bedspread was

defendant’s fingerprint. However, Warrick also compared the fingerprints without

using digitally enhanced imaging and reached the same conclusion.

{¶ 69} Defendant does not challenge Warrick’s expert credentials as a

general latent fingerprint examiner or Warrick’s identification of defendant’s print

on the bedspread by traditional comparison of the prints. Moreover, the trial court

properly admitted Warrick’s expert opinion on digitally enhanced fingerprint

evidence.

{¶ 70} In addition to the requirement of relevancy, expert testimony must

meet the criteria of Evid.R. 702, which provides that a witness may testify as an

expert if:

“(A) The witness’ testimony either relates to matters beyond the knowledge

or experience possessed by lay persons * * *;

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“(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony;

“(C) The witness’ testimony is based on reliable scientific, technical, or

other specialized information.”

{¶ 71} We find that the first prong of the rule was satisfied, since expert

testimony was necessary to make fingerprint comparisons. We find that the second

prong of the test also satisfied, since defendant never challenged or objected to

Warrick’s expert qualifications at trial. However, defense counsel did point out to

the judge that Warrick’s testimony was “blazing new ground” and that the scientific

reliability of the digital enhancement method had not been established. The trial

court accepted the reliability of digitally enhanced fingerprint evidence, finding that

“the use of the computer in this instance is no different than * * * would be the use

of an overhead projector, microscope, a magnifying glass or anything else like that

that would enhance an expert’s ability to make his determination and therefore I

find that there’s nothing—no new trails being blazed here and I’m overruling the

objection for that reason.”

{¶ 72} We have designated four factors to be considered in evaluating

reliability of scientific evidence: “(1) whether the theory or technique has been

tested, (2) whether it has been subjected to peer review, (3) whether there is a

known or potential rate of error, and (4) whether the methodology has gained

general acceptance.” State v. Nemeth (1998), 82 Ohio St.3d 202, 211, 694 N.E.2d

1332, 1338-1339, citing Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611,

687 N.E.2d 735, 740. However, it is important “to emphasize that none of these

factors is a determinative prerequisite to admissibility.” Nemeth at 211, 694 N.E.2d

at 1339, citing Miller at 612-613, 687 N.E.2d at 741. See, also, Daubert v. Merrell

Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.

{¶ 73} In this case, the third prong of the rule was satisfied, since digitally

enhanced imaging meets Evid.R. 702(C)’s reliability standard. Warrick testified

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that the King County Sheriff’s Office has used digitally enhanced fingerprint

analysis for “approximately a year and a half.” Other potential testimony

establishing the reliability of digitally enhanced fingerprint evidence was not

introduced because of the trial court’s ruling that the method was in fact reliable.

{¶ 74} Moreover, in State v. Hayden (1998), 90 Wash.App. 100, 950 P.2d

1024, the court approved the admissibility of digitally enhanced fingerprint

evidence utilizing the Frye standard.1 See Frye v. United States (C.A.D.C.1923),

293 F. 1013. The Hayden court considered expert testimony, articles from forensic

journals, and other matter in concluding that evidence obtained through digital

imaging enhancement of latent fingerprints is “generally accepted in the relevant

scientific community.” Id. at 109, 950 P.2d at 1028. Hayden’s conclusion that

digitally enhanced fingerprint evidence was admissible under the more stringent

Frye standard supports our conclusion that digitally enhanced fingerprint evidence

meets Evid.R. 702(C)’s reliability standard.

{¶ 75} We find that Warrick’s testimony that defendant’s fingerprint was

found on Snipes’s bedspread was properly admitted. Once properly before the

court, the expert’s conclusions became a matter for the trier of fact. State v. Nemeth,

82 Ohio St.3d at 211, 694 N.E.2d at 1339. Thus, we reject proposition IV.

{¶ 76} Expert qualifications. In proposition of law V, defendant claims

that the trial court should not have allowed four of the state’s expert witnesses to

testify because the court failed to make a threshold determination concerning their

qualifications.

{¶ 77} Evid.R. 702(B) provides that a witness may qualify as an expert by

reason of his or her specialized knowledge, skill, experience, training, or education.

Neither special education nor certification is necessary to confer expert status upon

1. This court has consistently rejected the Frye “general acceptance” standard. Miller v. Bike

Athletic Co. (1998), 80 Ohio St.3d 607, 613, 687 N.E.2d 735, 741, fn. 1. But we consider Hayden

to be relevant to the issue of reliability.

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January Term, 2001

a witness. The individual offered as an expert need not have complete knowledge

of the field in question, as long as the knowledge he or she possesses will aid the

trier of fact in performing its fact-finding function. State v. Baston (1999), 85 Ohio

St.3d 418, 423, 709 N.E.2d 128, 133; State v. D’Ambrosio (1993), 67 Ohio St.3d

185, 191, 616 N.E.2d 909, 915.

{¶ 78} Pursuant to Evid.R. 104(A), the trial court determines whether an

individual qualifies as an expert, and that determination will be overturned only for

an abuse of discretion. State v. Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144,

148, 446 N.E.2d 444, 448. The issue arises from the following four expert

witnesses.

{¶ 79} James Wurster. Wurster, a forensic scientist, had worked at the

Ohio Bureau of Criminal Identification and Investigation (“BCI”) since 1978.

Wurster’s educational qualifications included a master of science degree and course

work at the Bloodstain Institute, the Serological Research Institute, and various FBI

courses. He testified as to the presence of bloodstains on defendant’s boot, his tee-

shirt, and a chair leg from Snipes’s apartment.

{¶ 80} While the state never formally tendered Wurster as an expert,

defendant’s counsel never objected or challenged his qualifications to testify. Thus,

defendant waived all but plain error. Crim.R. 52(B); State v. Baston, 85 Ohio St.3d

at 423, 709 N.E.2d at 133. We find no plain error and find that Wurster’s

experience as a forensic scientist qualified him to testify at trial about the presence

of blood on various items.

{¶ 81} Cynthia Mayle. Mayle, a fingerprint examiner, worked for BCI

since 1995. Her prior experience included work as a fingerprint examiner for the

Cleveland and Philadelphia police departments. Mayle’s educational background

included a bachelor’s degree from Cleveland State University and attendance at the

advanced latent fingerprint course at the FBI Academy in Quantico. Mayle had

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also lectured on fingerprint techniques at the FBI Academy. Mayle identified

defendant’s bloody palm print on a chair leg from Snipes’s apartment.

{¶ 82} Although Mayle was not formally tendered as an expert, defendant

did not object to her qualifications, and waived all but plain error. Id. We find no

plain error and find that Mayle was fully qualified to expertly testify that

defendant’s palm print was found on Snipes’s chair leg.

{¶ 83} Patrick Warrick. As discussed earlier, Warrick, a latent fingerprint

examiner, identified defendant’s fingerprint on Snipes’s bedspread. Warrick has a

bachelor’s degree in criminology along with “numerous courses in crime scene

investigation, latent print development, latent print processing, latent print

comparisons, crime scene photography, [and] evidence photography.” Warrick’s

experience as a latent fingerprint examiner included employment with the Long

Beach and Santa Monica, California police departments (over eight years’ total),

and his current employment with the King County, Washington Sheriff’s

Department (five and a half years).

{¶ 84} Although Warrick was not formally tendered as an expert witness,

defendant’s objections to Warrick’s expert testimony did not challenge Warrick’s

qualifications. On that point, he waived all but plain error. Id. We find no plain

error and also find that Warrick was qualified to identify defendant’s fingerprint on

Snipes’s bedspread.

{¶ 85} Rod Englert. Englert, a forensic consultant, testified that long linear

blood patterns found on defendant’s tee-shirt and Snipes’s bedspread were applied

by a long-bladed knife. Moreover, the blood transfers were applied while the tee-

shirt was lying flat, and not while defendant was wearing it.

{¶ 86} Englert’s educational qualifications included a bachelor of science

degree, graduation from the FBI Academy, and completion of postgraduate work

at two universities. Englert’s experience included more than twenty-five years as

a police homicide investigator. Following his retirement from law enforcement,

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January Term, 2001

Englert became a consultant in crime scene reconstruction and blood pattern

evidence. Englert has lectured on these topics “around the world over 530 times

for the last 25 years in this subject,” he has published articles on crime scene

reconstruction, and he has “testified in the United States about 230 times as an

expert.”

{¶ 87} As with other experts in this case, the state did not formally tender

Englert as an expert. However, the trial judge found that Englert was “certainly

qualified as an expert” when he overruled a defense objection to a blood spatter

demonstration in the courtroom.

{¶ 88} Defendant’s counsel entered general objections to Englert’s opinion

that a long-bladed knife likely caused the blood transfer stains found on defendant’s

tee-shirt and Snipes’s bedspread and Englert’s opinion that the tee-shirt was not

being worn when the blood transfer stains were applied. The court overruled the

first two objections and sustained the third. The prosecutor rephrased the question,

and the testimony proceeded without question.

{¶ 89} Defendant’s counsel also objected to Englert’s opinion “regarding

the freshness of blood,” since “[h]e hasn’t acquired a pathology or doctor’s degree”

and such testimony is not “within his expertise.” The trial court overruled this

objection “because it’s not for the purpose of medical diagnosis.”

{¶ 90} Under Evid.R. 702(B), an expert may be qualified by specialized

knowledge, skill, experience, training, or education to give an opinion that will

assist the jury to understand the evidence and determine a fact at issue. See State

v. Biros (1997), 78 Ohio St.3d 426, 452, 678 N.E.2d 891, 912-913 (eleven years’

experience as a forensic scientist in bloodstain analysis was sufficient qualifications

for blood spatter testimony).

{¶ 91} Although Englert was not a medical doctor, the trial court did not

abuse its discretion in allowing him to testify as an expert because of his extensive

background and experience in bloodstain analysis. See State v. Wogenstahl (1996),

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75 Ohio St.3d 344, 362, 662 N.E.2d 311, 326 (forensic serologist’s testimony on

blood stain analysis permitted although witness was neither a college graduate nor

a medical doctor). Cf. Scott v. Yates (1994), 71 Ohio St.3d 219, 221, 643 N.E.2d

105, 107 (error to allow expert opinion where witness “frankly admitted that he was

not an accident reconstructionist; that he never had the opportunity to work with an

accident reconstructionist; and further, that he had never conducted an accident

reconstruction”). Moreover, “ ‘[i]t is a general rule that the expert witness is not

required to be the best witness on the subject. * * * The test is whether a particular

witness offered as an expert will aid the trier of fact in the search for the truth.’ “

State v. Tomlin (1992), 63 Ohio St.3d 724, 728, 590 N.E.2d 1253, 1257, quoting

Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 159, 10 O.O.3d 332,

334, 383 N.E.2d 564, 566.

{¶ 92} We find that although Englert was not formally tendered as an expert

in crime scene reconstruction and bloodstain and blood spatter analysis, Englert’s

education and experience qualified him to provide expert testimony on blood

transfers and the freshness of blood. Even though Englert was not a medical doctor,

the trial court did not err in permitting Englert’s expert testimony. Thus, we reject

proposition V.

{¶ 93} Gruesome photographs. In proposition of law VIII, defendant

argues that the trial court erred in admitting gruesome photographs of the victim,

since the prejudicial effect outweighed their probative value. However, defendant

fails to specify which photographs were objectionable or exactly why they were

inadmissible. The record shows that the trial court admitted several graphic crime

scene photos of Snipes’s body and various autopsy photos.

{¶ 94} The defense counsel objected to the gruesome photographs in a

motion before trial and renewed the objections at trial. The trial court overruled

these objections.

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January Term, 2001

{¶ 95} In capital cases, nonrepetitive photographs, even if gruesome, are

admissible if relevant and of probative value as long as the probative value of each

photograph outweighs the danger of material prejudice to the accused. State v.

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

of the syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257-258, 513 N.E.2d

267, 273-274. Decisions on the admissibility of photographs are “left to the sound

discretion of the trial court.” State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605

N.E.2d 916, 923.

{¶ 96} Crime scene photographs. State’s exhibits 28, 29, 30, and 35 were

photographs taken at different angles showing the chair draped over Snipes’s body.

State’s exhibit 34 was a distance shot taken across Snipes’s bed showing her body

on the opposite floor. State’s exhibit 33 shows Snipes’s body with her left hand cut

off. State’s exhibits 32 and 37, which were decidedly gruesome, show Snipes’s

body with a gag in her mouth and both hands cut off.

{¶ 97} These photos illustrated the testimony of the detective at the scene,

portrayed Snipes’s body in relation to her surroundings, and helped to prove the

killer’s intent and lack of accident or mistake. See State v. Goodwin (1999), 84

Ohio St.3d 331, 342, 703 N.E.2d 1251, 1262; State v. Mason (1998), 82 Ohio St.3d

144, 158, 694 N.E.2d 932, 949. Moreover, the photos at the crime scene supported

the prosecution theory that Hartman brutally murdered Snipes in a fit of rage. The

photos also corroborated Hoffman’s testimony that defendant discussed cutting off

a victim’s hands to eliminate evidence that might be found under the victim’s

fingernails.

{¶ 98} We find that no error was committed in admitting these photos, since

the probative value of each photograph outweighed any prejudice to the accused.

{¶ 99} Medical examiner’s photographs. State’s exhibits 82-84 and 96

present closeups and different angles of Snipes’s head, throat, and chest showing

her slit throat, stab wounds, and other injuries. They supported the medical

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examiner’s testimony as to cause of death. State’s exhibit 85 shows the numerous

stab wounds on Snipes’s torso, State’s exhibit 87 portrays bruising and wounds on

her lower extremities, and State’s exhibit 88 presents an “X” mark carved into

Snipes’s back, which the prosecution suggested represented defendant’s middle

initial. State’s exhibit 89 presents a full-body view of wounds on Snipes’s back

and lower extremities and State’s exhibit 90 shows stab wounds on the side of her

back. State’s exhibits 91-93 show cuts on Snipes’s legs and bruising on her ankle

indicating that she was alive when defendant tied her to the bed. Finally, State’s

exhibits 94 and 95 portray the stumps of her wrists and show how her hands were

cleanly cut off. Photos of Snipes’s wrist stumps supported testimony showing that

defendant was familiar with using knives as a chef and accounted for his near-

surgical removal of Snipes’s hands.

{¶ 100} The trial court did not err in admitting these photos. The fourteen

autopsy photos illustrated the medical examiner’s testimony and demonstrated

defendant’s specific intent to kill. State v. Goodwin, 84 Ohio St.3d at 342, 703

N.E.2d at 1262; State v. Mason, 82 Ohio St.3d at 159, 694 N.E.2d at 949. Snipes

was stabbed one hundred thirty-eight times all over her body, her throat was slit,

her hands were cut off, and her ankles and other areas of her body were bruised. In

this case, multiple injuries required multiple photographs. Thus, we find that the

trial judge did not abuse his discretion in admitting these photographs. See, e.g.,

State v. Smith (1997), 80 Ohio St.3d 89, 108-109, 684 N.E.2d 668, 687-688; State

v. Biros, 78 Ohio St.3d at 443, 678 N.E.2d at 907; State v. Joseph (1995), 73 Ohio

St.3d 450, 460, 653 N.E.2d 285, 294. Thus, we reject proposition VIII.

{¶ 101} Guilt phase instructions. In proposition of law XII, defendant

challenges the trial phase instructions on the kidnapping specification. Defendant

argues that the trial court erred in failing to instruct the jury that they must find that

he purposely removed or restrained Snipes.

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{¶ 102} Defendant, however, failed to object at trial or request specific

instructions and thus waived all but plain error. Crim.R. 30(A); State v. Underwood

(1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; State v. Williams

(1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. The alleged deficiency

did not cause a different trial result or create a manifest miscarriage of justice. State

v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. We find no plain

error. Additionally, we find that defendant suffered no prejudice from the court’s

instructions.

{¶ 103} R.C. 2905.01(A) requires the state to show that the kidnapping

involved a purposeful removal or restraint. State v. Avery (1998), 126 Ohio App.3d

36, 48, 709 N.E.2d 875, 883; see, also, State v. Maurer, 15 Ohio St.3d at 270, 15

OBR at 406, 473 N.E.2d at 796.

{¶ 104} R.C. 2905.01 provides:

“(A) No person, by force, threat, or deception, * * * shall remove another

from the place where the other person is found or restrain the liberty of the other

person, for any of the following purposes:

“* * *

“(2) To facilitate the commission of any felony or flight thereafter;

“(3) To terrorize, or to inflict serious physical harm on the victim or another;

“(4) To engage in sexual activity * * * with the victim against the victim’s

will.” (Emphasis added.)

{¶ 105} In the case sub judice, the trial court’s kidnapping instructions

omitted any explicit reference to “purpose.” But the trial court’s instructions on

kidnapping in the capital specification used the words “to facilitate” as follows:

“Kidnapping is the use of force, threat, or deception to remove a victim from

the place where he or she is found and/or restraining the liberty of such person to

facilitate the commission of any felony or flight thereafter, and/or to terrorize or

inflict the commission of any felony or to inflict serious physical harm on the victim

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and/or to engage in sexual activity with the victim against her will.” The trial

court’s instructions on the separately charged offense of kidnapping included the

same type of wording.

{¶ 106} While the trial court’s instruction deviated from the purposeful

language in the kidnapping statute, the instruction was not misleading and

defendant was not prejudiced. “Facilitate” is defined as “to make easier or less

difficult: free from difficulty or impediment [as in] to facilitate the execution of a

task[;] * * * to lessen the labor of (as a person): assist, aid.” Webster’s Third New

International Dictionary (1986), at 812. A commonsense understanding tells us

that the terms “for any of the following purposes” and “to facilitate” essentially

have the same meaning. Further, there was compelling evidence of defendant’s

guilt in the kidnapping (i.e., that defendant forcefully tied Snipes to her bed to

facilitate, or for the purpose of, brutally terrorizing and murdering her). Moreover,

the defense did not object to these instructions, and any deficiency did not amount

to outcome-determinative plain error. Thus, we reject proposition XII.

Penalty phase issues

{¶ 107} Penalty phase instructions. In proposition of law II, defendant

objects to three of the trial court’s penalty phase instructions.

{¶ 108} First, defendant argues that the trial court erred in instructing the

jury to “weigh against the aggravating circumstances the nature and circumstances

of the offense * * *.” Indeed, defendant submitted a pretrial motion requesting the

trial court not to give this instruction, since there was nothing mitigating about the

nature and circumstances of the offense.

{¶ 109} R.C. 2929.04(B) states that the jury “shall consider, and weigh

against the aggravating circumstances proved beyond a reasonable doubt, the

nature and circumstances of the offense * * *.” We find that the trial court’s

instruction was proper.

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January Term, 2001

{¶ 110} Second, defendant argues that the trial court’s instructions did not

comport with this court’s decision in State v. Brooks (1996), 75 Ohio St.3d 148,

661 N.E.2d 1030, in two ways. First, he objects to the following instruction:

“Should the jury’s recommendation be that the death sentence be imposed,

the Court must review and evaluate such recommendation and if the Court finds

beyond a reasonable doubt that the aggravating circumstances outweigh the

mitigating factors, the Court shall then impose the sentence of death.

“On the other hand, if after considering all of the evidence raised at trial

which is relevant to the issues before you, * * * you cannot unanimously agree that

the State of Ohio proved beyond a reasonable doubt that the aggravating

circumstances, as I have defined them, outweigh the mitigating factors, then you’ll

return your recommendation reflecting that decision.

“In this event, you will then proceed to determine which of the three

possible life imprisonment sentences to impose.”

{¶ 111} Defendant asserts that the instruction given by the trial court

required the jury to unanimously rule out the death penalty before considering a life

sentence in violation of State v. Brooks, supra. In Brooks, the trial court charged

the jury that “ ‘[y]ou are now required to determine unanimously that the death

penalty is inappropriate before you can consider a life sentence.’ ” (Emphasis

added.) Id., 75 Ohio St.3d at 159, 661 N.E.2d at 1040. Brooks found error because

the trial court’s instructions conflicted with R.C. 2929.03(D)(2). Id.

{¶ 112} In a pretrial motion, defendant objected to any “acquittal first” type

of penalty phase instructions and requested a clarifying instruction stating that

“[y]ou are not required to determine unanimously that the death sentence is

inappropriate before [you] consider the life sentences.”

{¶ 113} Contrary to defendant’s contention, the trial court never instructed

the jury that it had to unanimously reject the death penalty before it could consider

a life sentence. The instructions explicitly advised the jurors that if they were

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unable to unanimously agree to recommend death, they shall consider life

sentences. The jury was thus implicitly advised that a single juror could prevent

the death penalty. See State v. Stallings (2000), 89 Ohio St.3d 280, 294, 731 N.E.2d

159, 174-175. We find that this instruction was proper.

{¶ 114} Defendant also argues that the trial court erred by failing to give the

“lone-juror instruction” mandated in the Brooks case. In State v. Brooks, 75 Ohio

St.3d at 162, 661 N.E.2d at 1042, trial courts were told to explicitly instruct juries

that a single juror “may prevent a death penalty recommendation by finding that

the aggravating circumstances in the case do not outweigh the mitigating factors.”

Here, the trial court erred by not explicitly giving the jury this instruction.

However, the trial court’s instructions were consistent with R.C. 2929.03(D)(2),

and we find no prejudicial error. See State v. Stallings, 89 Ohio St.3d at 294, 731

N.E.2d at 174-175.

{¶ 115} Moreover, defendant failed to object to the lack of a lone-juror

instruction at trial and waived all but plain error. State v. Underwood, 3 Ohio St.3d

12, 3 OBR 360, 444 N.E.2d 1332, syllabus; see, also, State v. Williams, 51 Ohio

St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus. We find

that no plain error resulted from the trial court’s failure to give this instruction and,

thus, reject this argument.

{¶ 116} As the third instructional error, defendant argues that the trial court

erred by not instructing the jury as to the limited purpose of victim-impact

testimony. Defendant’s counsel objected very generally to the state’s victim-

impact testimony, but he did not request limiting instructions. Thus, defendant

waived all but plain error. See State v. Reynolds (1998), 80 Ohio St.3d 670, 679,

687 N.E.2d 1358, 1369.

{¶ 117} Ella Snipes, the victim’s mother, provided victim-impact

testimony. Mrs. Snipes briefly discussed the victim’s early life in North Carolina,

the victim’s schooling, her close-knit family, and the victim’s contact with family

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January Term, 2001

after moving to Akron. Mrs. Snipes summed up the family impact of the victim’s

death by saying, “[I]t’s been around nine months now since our daughter Winda

was brutally murdered. It has been an extremely bad time for us and will be from

now on. She’ll never leave our heart.” Mrs. Snipes expressed no opinion about the

penalty.

{¶ 118} Victim-impact testimony does not violate constitutional

guarantees. See, generally, Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct.

2597, 115 L.Ed.2d 720. This court has permitted victim-impact testimony in capital

cases when the testimony, as it was here, was not overly emotional or directed to

the penalty to be imposed. See State v. Reynolds, 80 Ohio St.3d at 679, 687 N.E.2d

at 1369; State v. Fautenberry (1995), 72 Ohio St.3d 435, 650 N.E.2d 878.

{¶ 119} Here, it cannot be said that the sentence clearly would have been

otherwise but for the lack of instructions regarding victim-impact evidence. See

State v. Reynolds at 679, 687 N.E.2d at 1369. Thus, we reject proposition II.

Prosecutorial misconduct

{¶ 120} In proposition of law VI, defendant complains about several

instances of prosecutorial misconduct.

{¶ 121} First, defendant argues that prosecutorial misconduct occurred

when the state called Kathryn Snipes-Gaskey, the victim’s sister, and she

improperly presented victim-impact testimony as the first prosecution witness

during the guilt phase. However, the defense counsel did not object to Snipes-

Gaskey’s testimony at trial, and thus waived all but plain error. State v. Tibbetts,

92 Ohio St.3d at 160-161, 749 N.E.2d at 248.

{¶ 122} Snipes-Gaskey identified the victim’s wristwatch seized from

defendant’s apartment. As a preliminary matter, Snipes-Gaskey described her close

personal relationship with the victim, discussed her familiarity with the victim’s

jewelry, and remembered the wristwatch because their mother purchased the watch

for the victim “around Christmas of 1995.”

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{¶ 123} Snipes-Gaskey provided additional testimony describing Snipes’s

upbringing, schooling, employment history, her move to Akron in May 1996, and

her last trip home in July 1997. Snipes-Gaskey also mentioned the victim’s close

family ties, discussed their last phone conversation two days before Snipes’s

murder, and mentioned that their parents and grandmother received a final letter

from the victim in the mail following Snipes’s murder. Snipes-Gaskey also

presented a collage showing photographs of the victim and the victim with her

family.

{¶ 124} Snipes-Gaskey’s identification of the victim’s wristwatch was

crucial in identifying defendant as the murderer, since the wristwatch was likely

stolen by the person who cut off Snipes’s hands. Preliminary testimony depicting

Snipes-Gaskey’s relationship with the victim and her familiarity with Snipes’s

jewelry laid the foundation for her identification of the victim’s wristwatch, and

this testimony was admissible.

{¶ 125} Snipes-Gaskey’s testimony about the victim’s employment history,

their final phone call, the victim’s final letter to her grandmother, and the

introduction of the collage was victim-impact evidence of questionable relevance.

Cf. State v. Fautenberry, 72 Ohio St.3d at 440, 650 N.E.2d at 882-883. Given the

fact that Snipes-Gaskey’s testimony was “not overly emotional or directed to the

penalty to be imposed, it cannot be said that the sentence would clearly have been

otherwise but for the victim-impact evidence.” See State v. Reynolds, 80 Ohio St.3d

at 679, 687 N.E.2d at 1369. Thus, we find that the admission of Snipes-Gaskey’s

testimony was not plain error.

{¶ 126} Second, defendant argues that prosecutor’s closing argument

during the penalty phase was improper. Defendant’s first example of the

prosecutor’s improper argument includes the following: “Because certainly Winda

Snipes is not here to talk about, you know, her feelings and what she went through

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January Term, 2001

those last minutes of her life. So, the information from her mother is permitted for

your consideration.”

{¶ 127} However, defendant failed to object to this argument and waived

all but plain error. See State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373

N.E.2d 1244, paragraph one of the syllabus.

{¶ 128} The prosecutor erred in inviting the jury to concentrate on what the

victim experienced and was feeling in her last moments of life. As recognized in

State v. Wogenstahl, 75 Ohio St.3d at 357, 662 N.E.2d at 322-323, citing State v.

Combs (1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077, such argument

improperly “invites the jury to speculate on facts not in evidence.” Although error,

we find that the prosecutor’s brief remarks do not rise to the level of outcome-

determinative plain error.

{¶ 129} Defendant also claims that the prosecutor committed misconduct

during the following segment of his penalty phase argument: “[T]he Judge is going

to tell you [what] the law is, but I anticipate that, against those aggravating

circumstances you weigh the nature and circumstances of this offense.” Again,

defendant failed to object to this segment of the argument, and 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.

{¶ 130} Under R.C. 2929.04(B), the jury must weigh proven aggravating

circumstances against the nature and circumstances of the offense as a potential

mitigating factor. See State v. Wogenstahl, 75 Ohio St.3d at 361, 662 N.E.2d at

325; State v. Lindsey (2000), 87 Ohio St.3d 479, 486, 721 N.E.2d 995, 1004.

Accordingly, we find that this segment of the prosecutor’s argument did not involve

misconduct.

{¶ 131} Defendant also argues that the prosecutor committed misconduct

during this portion of his penalty phase closing argument: “I think you certainly can

consider as a part of the aggravating circumstance this Defendant’s actions after the

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murder, removing of evidence, trying to wipe down the scene, letting the mutilated

body of Winda Snipes lay for several hours before * * * the police are called, fleeing

after the commission of a crime. Those kinds of actions can also by considered by

you.” The trial court overruled the defense counsel’s objection to these comments.

{¶ 132} Here, the kidnapping specification was the only aggravating

circumstance that the jury could consider during the penalty phase. Thus, it was

wholly improper for the state to argue or suggest that the jury may consider the

nature and circumstances of the offense as “part of the aggravating circumstance.”

See State v. Wogenstahl, 75 Ohio St.3d 344, 662 N.E.2d 311, 321, paragraph one

of the syllabus.

{¶ 133} The test for prejudice regarding prosecutorial misconduct in

closing arguments is “ ‘whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant.’ ” State v. Hessler (2000),

90 Ohio St.3d 108, 125, 734 N.E.2d 1237, 1254, quoting State v. Smith (1984), 14

Ohio St.3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. Here, the prosecutor’s

improper argument could not have made any difference in the outcome of the trial,

particularly in light of the statutory aggravating circumstance defendant was found

guilty of committing and the lack of compelling mitigating evidence. Cf. State v.

Wogenstahl, 75 Ohio St.3d at 360, 662 N.E.2d at 324.

{¶ 134} Moreover, the trial court properly instructed the jury that the only

aggravating circumstance in this case was the kidnapping specification. The

instruction was very clear in this regard, and we can assume that the jury followed

the trial court’s instructions. Id. at 360, 662 N.E.2d at 324-325. Also, our

independent reassessment of the sentence can cure this error. State v. Hill (1996),

75 Ohio St.3d 195, 210, 661 N.E.2d 1068, 1082. Thus, we reject this complaint.

{¶ 135} Finally, defendant argues that the prosecutor committed

misconduct by improperly introducing victim-impact evidence before the defense

opened the door to its admission. However, the state’s introduction of relevant

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January Term, 2001

victim-impact testimony is not limited to refuting or rebutting mitigation evidence

that the defense has first introduced. See, generally, State v. Fautenberry, 72 Ohio

St.3d at 440, 650 N.E.2d at 883; State v. White (1999), 85 Ohio St.3d 433, 446, 709

N.E.2d 140, 154. We find that the testimony was relevant to guilt. Therefore, we

reject this argument.

{¶ 136} In summary, we find no prosecutorial misconduct justifying

reversal and we reject proposition VI.

Ineffective Assistance of Counsel

{¶ 137} In proposition of law VII, defendant raises multiple instances of

ineffective assistance of counsel. Reversal of a conviction for ineffective assistance

of counsel 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, 693. Accord State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.

1. Concession during final argument in the penalty phase

{¶ 138} Defendant argues his defense counsel was ineffective during final

argument in the penalty phase by conceding that “[t]here’s nothing I can do, nothing

we can say, no evidence we can put on to reduce the blame that you’ve already

ascribed.” Defendant claims that by making this concession about blame, his

counsel totally foreclosed any opportunity to avoid the jury’s imposition of the

death sentence.

{¶ 139} In the instant case, it may appear that defense counsel “conceded

blame” during the penalty phase of the trial, but this was after guilt had already

been determined. There was, in fact, nothing counsel could do to change the jury’s

finding of guilt. A reading of the transcript reveals, moreover, that counsel was

merely explaining to the jury that the guilt phase and penalty phases are separate.

Counsel merely noted that the jury had already convicted his client and found that

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he was guilty of the murder and that counsel was now moving beyond that fact to

focus the jury’s attention on mitigating factors. Here, his defense counsel forcefully

argued throughout his summation that the mitigating factors justified imposition of

a life sentence. Counsel’s tactical decision conceding blame maintained the

defense’s credibility and allowed counsel to focus the jury’s attention on mitigating

factors supporting a life sentence. See State v. Tyler (1990), 50 Ohio St.3d 24, 40,

553 N.E.2d 576, 595 (counsel not ineffective for conceding guilt in closing

argument during the penalty phase). Thus, we find no error in counsel’s argument.

2. Failure to object to expert testimony

{¶ 140} Defendant argues that his counsel were ineffective by failing to

object to Englert’s opinion on blood-transfer evidence, since Englert did not testify

that his opinion was based upon a reasonable degree of scientific certainty. Further,

defendant argues that his counsel should have cross-examined Englert on his

inadequate expert qualifications.

{¶ 141} Englert provided his opinion on blood-transfer stains found on

defendant’s tee-shirt and Snipes’s stuffed toy rabbit after being asked by the

prosecutor if he had formed his opinion to “a reasonable degree of scientific

certainty.” During the same series of questions, the prosecutor asked Englert for

three more opinions on blood-transfer stains and the freshness of blood without first

asking Englert whether his opinion was based on a “reasonable degree of scientific

certainty.”

{¶ 142} Defense counsel were not ineffective by failing to object to these

follow-up questions. After the prosecutor’s first questions, defense counsel could

reasonably conclude that Englert would continue to give opinions based on a

reasonable degree of scientific certainty. Further objections by defense counsel

would only further emphasize the scientific certainty of the witness’s testimony.

{¶ 143} The failure to object to error, alone, is not enough to sustain a claim

of ineffectiveness. “Because ‘[o]bjections tend to disrupt the flow of a trial, [and]

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are considered technical and bothersome by the fact-finder,’ Jacobs, Ohio Evidence

(1989), at iii-iv, competent counsel may reasonably hesitate to object in the jury’s

presence.” State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339, 352.

Thus, we find that counsel made a legitimate “tactical decision” by not objecting to

Englert’s further answers and that this decision was not ineffective.

{¶ 144} Defendant also argues that his counsel were ineffective by failing

to cross-examine Englert on his expert qualifications. Contrary to defendant’s

assertions, Englert’s qualifications were extremely strong. Englert graduated from

the FBI Academy at Quantico, he had completed postgraduate work at the

University of Virginia, and he had twenty-five years of experience as a police

homicide investigator, retiring as chief detective. He has lectured all over the

world, including at Scotland Yard. He is a published author on crime scene

reconstruction and has been teaching for twenty-five years at the Southern Police

Institute. He has testified over two hundred times as an expert. By not cross-

examining Englert on his background and experience, defense counsel avoided

inviting the prosecutor to ask followup questions that might bolster Englert’s

qualifications even more in the eyes of the jury. Again, we find that counsel made

a legitimate tactical decision and were not ineffective. See State v. Jones (2001), 91

Ohio St.3d 335, 354, 744 N.E.2d 1163, 1183.

{¶ 145} Defendant also claims that his counsel were ineffective by failing

to object to Warrick’s expert testimony, since this was the first time that Warrick

had ever testified using digitally enhanced fingerprint evidence. Further, defendant

attacks counsel’s failure to object to Warrick’s testimony because his written report

never stated that the information he utilized was sufficient for him to form an

opinion. He also argues that counsel were ineffective for never objecting during

Warrick’s testimony that his conclusions were not based on a reasonable degree of

scientific certainty.

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{¶ 146} During cross-examination, Warrick admitted that this was the first

time he had ever testified using digitally enhanced fingerprint evidence. In this

instance, counsel’s effective cross-examination exposed Warrick’s inexperience in

testifying about digitally enhanced fingerprint evidence. The jury was properly

instructed that they were to decide what weight to give such evidence. See State v.

Jones (2000), 90 Ohio St.3d 403, 416, 739 N.E.2d 300, 315. We reject this claim

of ineffective assistance.

{¶ 147} Defendant’s attack on counsel’s failure to object to the inadequacy

of Warrick’s testimony cannot be evaluated, since Warrick’s January 9, 1998 report

was never presented at trial. Moreover, defendant cannot add to the record, since

“[a] reviewing court cannot add matter to the record before it * * * and then

decide the appeal on the basis of the new matter.” State v. Ishmail (1978), 54 Ohio

St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus.

{¶ 148} We also find that defendant’s attack on counsel’s delay in objecting

to Warrick’s testimony lacks merit. At the conclusion of Warrick’s testimony,

counsel moved to strike his testimony because it was not based on a reasonable

degree of scientific certainty. As previously discussed, the trial court properly

overruled counsel’s motion. Moreover, we find that counsel’s delay in objecting

to Warrick’s testimony was a “tactical decision,” and reject this claim of

ineffectiveness. See State v. Smith (2000), 87 Ohio St.3d 424, 441, 721 N.E.2d 93,

111.

3. Failure to object to Urbank’s and Hoffman’s testimony

{¶ 149} Defendant argues that counsel was ineffective because his counsel

failed to object to Urbank’s testimony that defendant said that “he face stomped a

black guy six months ago.” Since this testimony was properly admitted, counsel’s

failure to challenge such evidence cannot be considered ineffective assistance.

{¶ 150} Assuming that such testimony should not have been introduced,

any such deficiency constitutes reversible error only where “there is a reasonable

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January Term, 2001

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80

L.Ed.2d at 698. Here, compelling evidence of defendant’s guilt was presented

during his trial and the jury’s consideration of this improper comment would not

have changed the outcome of the case. Therefore, we reject this claim of

ineffectiveness.

{¶ 151} Defendant also asserts counsel’s ineffectiveness for failing to

object to Christopher Hoffman’s testimony. Hoffman, one of defendant’s co-

workers at the Hilton, testified that defendant mentioned during a conversation in

August 1997 that O.J. Simpson could have cut off the victim’s hands and eliminated

skin and fiber evidence from the victim’s nails.

{¶ 152} Hoffman’s testimony was admissible in establishing defendant’s

identity as the murderer. Evid.R. 401; see, also, State v. Sage, 31 Ohio St.3d 173,

31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. Defendant’s

comments about cutting off a victim’s hands implicated defendant as Snipes’s

murderer, since Snipes’s hands were cut off. In addition, defendant’s comments

were made just a month before the murder and tended to prove “prior calculation

and design.” See R.C. 2903.01(A).

{¶ 153} Thus, we find that counsel’s failure to object was not ineffective.

4. Failure to utilize DNA evidence

{¶ 154} Defendant argues that his counsel were ineffective for failing to

utilize DNA evidence to establish that defendant’s semen was not present in

Snipes’s anus.

{¶ 155} Urbank testified that defendant had told him that he had only

vaginal intercourse with Snipes on September 9, although he “had first asked her

when they were going up to the apartment if he could have anal intercourse with

her and she said yes but later she said no and he was disappointed because they

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didn’t have any.” At trial, defendant repeated that he had “[j]ust regular vaginal

sex,” and no anal sex.

{¶ 156} Platt, the medical examiner, testified that sperm was found in the

victim’s anus. The state conducted no DNA testing. According to Wurster, a BCI

forensic scientist assigned to the DNA section, he recommended against DNA

testing on the semen because “I was given information that the Defendant never

denied having sex and DNA would do nothing more than confirm that that was the

case.” Moreover, the Akron police did not request DNA testing of the semen, and

Wurster was never informed that defendant denied having anal sex with the victim.

{¶ 157} The defense theory was that someone else had had anal sex with

Snipes and killed her on September 9. Thus, defendant claims that his counsel were

ineffective for failing to utilize DNA testing to show that his semen was not in

Snipes’s anus.

{¶ 158} As an initial matter, “the failure to call an expert and instead rely

on cross-examination does not constitute ineffective assistance of counsel.” State

v. Nicholas (1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225, 230, citing State v.

Thompson (1987), 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407, 417. Thus, the defense

counsel’s decision to rely on cross-examination should be viewed as a legitimate

“tactical decision” particularly since the results of a DNA examination may not

necessarily have proven favorable for the defense. See State v. Watson (1991), 61

Ohio St.3d 1, 13, 572 N.E.2d 97, 108.

{¶ 159} Finally, resolving this issue in defendant’s favor would be purely

speculative. “Nothing in the record indicates what kind of testimony an * * * expert

could have provided. Establishing that would require proof outside the record, such

as affidavits demonstrating the probable testimony. Such a claim is not

appropriately considered on a direct appeal.” State v. Madrigal (2000), 87 Ohio

St.3d 378, 390-391, 721 N.E.2d 52, 65 (rejecting claim of ineffectiveness for

counsel’s failure to utilize an expert on eyewitness identification); State v. Carter

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January Term, 2001

(2000), 89 Ohio St.3d 593, 606, 734 N.E.2d 345, 357 (rejecting claim of

ineffectiveness for counsel’s failure to pursue MRI testing in the penalty phase).

Thus, we reject defendant’s claim that counsel’s failure to utilize DNA evidence

constituted ineffective assistance of counsel.

5. Failure to obtain expert testimony on bloodstain

{¶ 160} Defendant argues counsel’s ineffectiveness for failing to obtain

expert testimony concerning a bloodstain found on his right boot.

{¶ 161} Wurster testified that he found a small bloodstain on one of

defendant’s boots. However, Wurster conducted no confirmatory testing to

determine whether the blood stain matched the defendant’s or the victim’s blood

type, or even whether it was human or animal blood. Thus, defendant argues that

his counsel were ineffective for failing to present expert testimony to establish that

the bloodstain found on his boot was animal blood or that it came from the “face

stomping” incident or elsewhere.

{¶ 162} The bloodstain on defendant’s boot was not an issue in the case,

since he admitted that the police “would find the blood of the victim on them.”

Moreover, defendant admitted on the stand that he was at Snipes’s apartment and

tried to lift her bloody corpse from the floor to the bed, got blood on his hands from

trying to lift her body, and ran to the bathroom and began washing all the blood off

his hands in the bathtub. Thus, blood could obviously be found on his boots.

Counsel could have determined that pursuing testing in light of this evidence was

not a wise use of time and resources. Counsel exercised a legitimate tactical

decision by not pursuing this questionable line of defense. Thus, we reject this

claim.

6. Failure to conduct meaningful voir dire

{¶ 163} Defendant claims that his counsel were ineffective for failing to

adequately voir dire prospective jurors because counsel generally inquired only

about the jurors’ ability to be fair and impartial. However, defendant fails to specify

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which prospective jurors were improperly questioned, or how counsel’s

questioning prejudiced his case.

{¶ 164} “ ‘The conduct of voir dire by defense counsel does not have to take

a particular form, nor do specific questions have to be asked.’ ” State v. Smith, 87

Ohio St.3d at 440, 721 N.E.2d at 110, quoting State v. Evans (1992), 63 Ohio St.3d

231, 247, 586 N.E.2d 1042, 1056. Moreover, this court “will not second-guess trial

strategy decisions” such as those made in voir dire, and “ ‘a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’ ” State v. Mason, 82 Ohio St.3d at 157-158, 694 N.E.2d

at 949, quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694;

see, also, State v. Cornwell (1999), 86 Ohio St.3d 560, 569, 715 N.E.2d 1144, 1153.

{¶ 165} As to defendant’s claim of ineffective assistance in regard to voir

dire, defendant fails to establish prejudice, namely, “that there exists a reasonable

probability that, were it not for counsel’s errors, the result of the trial would have

been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph

three of the syllabus. Thus, we find that this claim has no merit.

7. Failure to object to prosecutorial misconduct

{¶ 166} Defendant recasts his objections to prosecutorial misconduct into

ineffective assistance of counsel without showing why counsel’s failure to object

made his performance deficient or how reasonably probable that, but for counsel’s

errors, the result of the trial would be different. Id. However, “ ‘[t]he failure to

object to error, alone, is not enough to sustain a claim of ineffective assistance of

counsel.’ ” State v. Fears (1999), 86 Ohio St.3d 329, 347, 715 N.E.2d 136, 153,

quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831, 837.

Since defendant does not show that any particular failure to object substantially

violated any essential duty or was otherwise prejudicial, we reject this claim.

8. Failure to object to trial and penalty phase instructions

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{¶ 167} Defendant argues that counsel’s failure to object to the trial and

penalty phase instructions constituted ineffectiveness. However, defendant fails to

specify the instructions that he believes counsel should have objected to as

erroneous.

{¶ 168} Earlier in this opinion, we found no merit in defendant’s allegations

of instructional error during either the trial or penalty phase of the trial. Here,

defendant similarly fails to demonstrate how counsel’s failure to object was

deficient performance or how “there exists a reasonable probability that, were it not

for counsel’s errors, the result of the trial would be different.” Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Since counsel’s

performance did not fall below an objective standard of reasonableness and

defendant did not suffer prejudice, we reject this claim of ineffectiveness. See State

v. Madrigal, 87 Ohio St.3d at 397, 721 N.E.2d at 70.

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9. Failure to object to “other acts” testimony

{¶ 169} Defendant next argues that his counsel were ineffective for failing

to object to “other acts” testimony, making no argument in support and citing pages

in the trial transcript that deal with the admission of defendant’s knives into

evidence. If any error was committed here, it had nothing to do with “other acts.”

The introduction of a set of defendant’s knives from work showed defendant’s easy

access to a possible murder weapon and his familiarity with using knives. As

discussed earlier, this evidence was extremely relevant, since Snipes was stabbed

one hundred thirty-eight times, her throat was slit, and her hands were cut off with

surgical precision. We find that counsel were not deficient by failing to object, and

we reject this claim.

10. Failure to ensure a complete record

{¶ 170} Defendant argues that his counsel were ineffective by failing to

ensure that a complete record of the proceedings was made and that, as a result,

defendant has lost his chance to argue that an improper contact occurred, prompting

the trial judge’s admonition:

“Remember my admonitions about discussing the case with anyone else. I

will also further tell you, folks, that you are not allowed to ask questions of the

lawyers or speak to the lawyers, okay?

“If you have any questions, keep them in your mind, if they answer the

questions for you, fine; if they don’t, that’s something that you can consider during

your deliberations.”

{¶ 171} Defendant presents no evidence of any improper contacts, and “

‘without knowing what happened during those portions of the trial, we are

obviously in no position to find that it was prejudicial error not to record them.’ ”

State v. Phillips (1995), 74 Ohio St.3d 72, 87, 656 N.E.2d 643, 660, quoting State

v. Tyler, 50 Ohio St.3d at 38, 553 N.E.2d at 593. Since defendant neither specifies

how the trial record is incomplete nor demonstrates how he was prejudiced, his

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January Term, 2001

counsel’s performance cannot be characterized as ineffective assistance. See State

v. Davie (1997), 80 Ohio St.3d 311, 332, 686 N.E.2d 245, 264; State v. Keith

(1997), 79 Ohio St.3d 514, 536, 684 N.E.2d 47, 67. Therefore, we reject this claim.

{¶ 172} In summary, since none of defendant’s claims establishes

ineffective assistance of counsel, we find that proposition VII lacks merit.

Constitutional issues

{¶ 173} In proposition of law XI, defendant challenges the constitutionality

of the proportionality review that this court conducts in capital cases. However, his

claims are without merit. See State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR

273, 509 N.E.2d 383, paragraph one of the syllabus; State v. Smith, 80 Ohio St.3d

at 118, 684 N.E.2d at 694.

{¶ 174} In proposition of law XIII, defendant disputes the constitutionality

of Ohio’s death penalty statute. We reject these claims. See State v. Carter, 89

Ohio St.3d at 607, 734 N.E.2d at 357-358; State v. Clemons (1998), 82 Ohio St.3d

438, 454, 696 N.E.2d 1009, 1023; State v. Poindexter (1988), 36 Ohio St.3d 1, 520

N.E.2d 568, syllabus.

{¶ 175} Defendant also challenges the Ohio Constitution’s requirement of

a direct appeal from the trial court to the Ohio Supreme Court if the death penalty

was imposed. We find that this claim also has been resolved. See State v. Smith,

80 Ohio St.3d 89, 684 N.E.2d 668, paragraph one of the syllabus; State v. Clemons,

82 Ohio St.3d at 454, 696 N.E.2d at 1023.

{¶ 176} Further, defendant’s claim that Ohio’s death penalty violates

international treaties lacks merit. State v. Bey (1999), 85 Ohio St.3d 487, 502, 709

N.E.2d 484, 499; State v. Phillips, 74 Ohio St.3d at 103-104, 656 N.E.2d at 671.

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Sentencing opinion/Failure to comply with R.C. 2929.03(F).

{¶ 177} In proposition of law IX, defendant argues that the trial court’s

sentencing opinion failed to explain, as required by R.C. 2929.03(F), why the

aggravating circumstance outweighed the mitigating factors.

{¶ 178} In its opinion, the trial court stated that “the emphasis was on

seeking, identifying and evaluating factors in mitigation of the death sentence,

pursuant to R.C. 2929.04(B).” The trial court listed and considered the mitigating

factors defendant presented during the penalty phase of the trial. “Having reviewed

all the evidence, and the material presented in mitigation, the Court found [that] the

aggravating circumstances did outweigh any factors presented in mitigation in this

case.”

{¶ 179} Defendant complains that the trial court did not explain how it

determined that the aggravating circumstance outweighed the mitigating

circumstances. The trial court should have presented an explanation. However, the

court set forth the mitigating factors in detail, evidencing its consideration of

defendant’s evidence in making its decision. There is “no requirement” that the

trial court explain “how it decides how much weight to give to any one factor. The

weight, if any, given to a mitigating factor is a matter for the discretion of the

individual decisionmaker.” State v. Filiaggi (1999), 86 Ohio St.3d 230, 245, 714

N.E.2d 867, 880.

{¶ 180} Furthermore, our independent reassessment of the sentence will

eliminate the effect of any deficiencies found in the trial court’s sentencing

decision. State v. Fox (1994), 69 Ohio St.3d 183, 191, 631 N.E.2d 124, 131. For

these reasons, we reject proposition IX.

Weighing and determination of the death penalty

{¶ 181} In proposition of law X, defendant argues that his death penalty

must be vacated because the aggravating circumstance does not outweigh the

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January Term, 2001

mitigating circumstances. We will address defendant’s argument when we

independently review defendant’s death sentence.

Independent Sentence Evaluation

{¶ 182} Aggravating circumstance. Defendant was convicted of the felony

murder (kidnapping) aggravating circumstance under R.C. 2929.04(A)(7).

{¶ 183} The evidence against defendant included defendant’s admissions

linking him to the crime and the crime scene, his clandestine 911 calls notifying the

police of the murder, his destruction of evidence at the crime scene, his derogatory

comments about the victim (e.g., “psycho bitch” and “she got what she deserved”),

the presence of Snipes’s watch and defendant’s bloody tee-shirt at his apartment,

Hoffman’s testimony that defendant discussed cutting off a victim’s hands to

eliminate evidence, and defendant’s jailhouse confession. Forensic evidence

showing defendant’s guilt included fingerprint evidence and expert testimony that

the blood patterns on defendant’s tee-shirt were applied by a long-bladed knife.

{¶ 184} Evidence establishing kidnapping included the victim’s bound and

gagged body at the crime scene and medical testimony that the victim was still alive

when she was tied to her bed with a pair of pantyhose. Thus, the evidence in the

case clearly established, beyond a reasonable doubt, that defendant intentionally

murdered Snipes while kidnapping or attempting to kidnap her.

{¶ 185} Mitigation evidence. Defendant called two mitigation witnesses,

his sister and his aunt.

{¶ 186} According to Rhea Wolpert, the defendant’s sister, defendant

experienced a turbulent childhood. His mother divorced his stepfather when

defendant was four, and defendant moved from Wisconsin to California with his

mother and her boyfriend, Ralph. Defendant had difficulty adjusting socially and

doing well in school in California. After a few years in California, defendant was

sent to Arizona to live with his Aunt Arletta. Aunt Arletta was described as a stable

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influence in Hartman’s life. Later, defendant moved to New Mexico to live with

his natural father.

{¶ 187} Defendant returned to California to live with his mother when he

was fourteen. While living in California, he started having problems with street

kids and experimenting with alcohol.

{¶ 188} Defendant moved to Wolpert’s residence in Akron when he was

seventeen or eighteen. Defendant worked at factory jobs, paid Wolpert rent, and

contributed to his share of the bills. According to Wolpert, defendant occasionally

had problems drinking alcohol and indicated that there is a family history of

alcoholism.

{¶ 189} When defendant was eighteen, he returned to California. He

completed a program at a youth home in California, and later moved with his

mother to Wisconsin, and then to Akron.

{¶ 190} Arletta Hartman, the defendant’s aunt, stated that when defendant

was eight, he was sent to live with her because of his disciplinary problems. She

was a teacher on a Navajo Indian reservation in Arizona, and defendant was

enrolled in a Catholic school on the reservation. She described defendant as a very

good and kind boy, but hyperactive. Defendant had problems in school and

repeated third grade but his grades improved and he was a “strong B student” in

fourth grade.

{¶ 191} Defendant lived with his aunt for three and one-half years.

However, defendant started having problems in school and was rebellious, and he

was sent to live with his natural father at age twelve. Defendant’s stepmother was

very strict; he started running away from home, and defendant was placed into a

juvenile center for theft.

{¶ 192} Ultimately, defendant moved back to his mother’s home in

California. When he was fourteen or fifteen, defendant spent time in a youth home

for car theft and alcohol abuse. Later, defendant illegally left the youth home and

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January Term, 2001

went to live with his sister in Akron. Defendant later returned to California, turned

himself into authorities, and finished his time at the youth home. Thereafter, he

returned with his mother to live in Ohio.

{¶ 193} In proposition of law X, defendant argues that the aggravating

circumstance does not outweigh the mitigating factors. Defendant argues that his

youth (twenty-three at the time of the offense), lack of significant criminal history

(five or six convictions for driving under the influence), and the influence of

alcoholism on his life should be considered.

{¶ 194} Defendant indicates that his substance and alcohol-abuse problems

began at age eleven. Thereafter, he was intermittently homeless and lived on the

streets in California, where he used alcohol, marijuana, and other drugs heavily.

Defendant says that this pattern of abuse continued through his later teenage years

and into his early adult life. He would typically consume a twelve-pack of beer a

night, smoke marijuana, and use other drugs, and he was clinically diagnosed “as

chemically dependent for alcohol and drugs.”

{¶ 195} Defendant argues that there are ten important mitigating factors

warranting reversal of his death sentence: (1) his family history of alcoholism, (2)

hyperactivity and attention deficits contributing to his adjustment problems, (3) his

unstable home environment, (4) difficulty in adjusting to different locations and

cultures (i.e., living on a Navajo Indian reservation), (5) failure to develop

childhood trust and emotional bonding, (6) heavy involvement with alcohol and

drugs as a youth, (7) alcohol overdose at age twelve, (8) multiple encounters with

the criminal justice system, typically involving substance abuse, (9) worsening

alcohol dependence as an adult and multiple DUIs, and (10) recent stability as

evidenced by his employment as a chef and moving in with his mother to share

expenses. Moreover, defendant claims that there is little in his background

indicating that he could have or did commit this crime. Also, he claims that there

is nothing to suggest that he would commit this type of crime in the future.

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{¶ 196} Defendant argues that he can remain a productive member of

society within the prison environment. By remaining drug- and alcohol-free in

prison, defendant claims that he can show his true side: “kind, caring,

compassionate, friendly, and industrious.”

{¶ 197} Defendant expressed his sorrow about Snipe’s death but continued

to profess his innocence.

Sentence evaluation

{¶ 198} We find that the evidence proves beyond a reasonable doubt that

defendant committed the aggravating circumstance with which he was charged, i.e.,

murder during kidnapping, R.C. 2929.04(A)(7).

{¶ 199} We find nothing in the nature and circumstances of the offense to

be mitigating. Snipes was gagged and forcefully tied to her bed with a pair of

pantyhose and then brutally murdered. The facts show a senseless, horrific murder

that lacks any mitigating circumstances.

{¶ 200} Defendant’s history and background provide only modest

mitigating features. Nevertheless, defendant’s childhood was turbulent, as he lived

with a succession of relatives and parents in different parts of the country.

Moreover, alcohol problems were a part of his family’s history and defendant’s

alcohol and substance abuse began at age eleven. Defendant’s alcohol dependency

undoubtedly contributed to his criminal activity (thefts) and numerous DUI

convictions. Despite these difficulties, defendant was gainfully employed and

appears to have been a hard worker.

{¶ 201} We find that the R.C. 2929.04(B)(4) mitigating factor (youth of the

offender) applicable but entitled to little weight, since defendant was twenty-three

years of age at the time of the offense. See State v. Dunlap (1995), 73 Ohio St.3d

308, 319, 652 N.E.2d 988, 998; State v. Ballew (1996), 76 Ohio St.3d 244, 257, 667

N.E.2d 369, 382.

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{¶ 202} We conclude that the R.C. 2929.04(B)(5) mitigating factor (lack of

a significant criminal history) may be applicable but entitled to little weight, since

defendant had at least five previous DUI convictions. See State v. D’Ambrosio, 73

Ohio St.3d at 145, 652 N.E.2d at 714 (lack of significant prior criminal record

entitled to some weight despite two previous DUIs).

{¶ 203} In summary, defendant’s mitigation is only modest. His youth (age

twenty-three), his employment history, see State v. Madrigal, 87 Ohio St.3d at 400,

721 N.E.2d at 72, as well as his lack of a significant prior criminal record (although

he committed at least five DUIs), merit some consideration. Also, we accord only

modest weight in mitigation to defendant’s dysfunctional family background, his

family’s history of alcohol abuse, and his short record of gainful employment.

Defendant’s alcohol use undoubtedly affected his judgment and may have played a

role in the murder. However, there was no testimony that he was heavily

intoxicated before the murder or that alcohol somehow significantly reduced his

ability to control his actions that night so as to negate specific intent. Overall, the

mitigating factors are of modest significance, and we find that they are outweighed

by the aggravating circumstance.

{¶ 204} We find that the death penalty imposed for aggravated murder of

Snipes is appropriate when compared with other kidnapping-murder cases. See

State v. Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369; State v. Joseph, 73 Ohio St.3d

450, 653 N.E.2d 285; State v. Simko, 71 Ohio St.3d 483, 644 N.E.2d 345; State v.

Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524; State v. Fox, 69 Ohio St.3d

183, 631 N.E.2d 124; State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464; and

State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491.

{¶ 205} Accordingly, we affirm defendant’s convictions and sentence of

death.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.

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SUPREME COURT OF OHIO

COOK, J., concurs in judgment.

PFEIFER, J., dissents.

__________________

PFEIFER, J., dissenting.

{¶ 206} In State v. Maurer (1984), 15 Ohio St.3d 239, 243, 15 OBR 379,

383, 473 N.E.2d 768, 775, this court stated that “prolonged restraint, secretive

confinement, or significant movement apart from that involved in the underlying

crime [are required] in order to justify the application of the aggravating

circumstance of kidnapping under R.C. 2929.04(A)(7).” In this case, the alleged

kidnapping was in reality a series of actions that were incidental to the crime of

murder. The sad truth is that it is easier to stab someone over one hundred times if

the victim can’t evade you. The majority places great weight on the fact that the

victim was tied up before she was killed. The sad truth is that there was no reason

to tie up the victim after she was dead.

{¶ 207} The record does not contain proof beyond a reasonable doubt that

a kidnapping occurred. It is possible to believe that a kidnapping occurred; our

system of justice requires more. Without the kidnapping felony-murder

specification, this case is a murder case, not a capital murder case. Despite the

grisly nature of the crime, that is what it should be. I would reverse the kidnapping

conviction and felony-murder conviction and vacate the sentence of death. I

dissent.

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APPENDIX

{¶ 208} “Proposition of Law No. I: The state failed to introduce sufficient

evidence to prove all of the elements of kidnapping beyond a reasonable doubt.

Appellant Hartman was deprived of his right to due process of law under the

Fourteenth Amendment to the United States Constitution.

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January Term, 2001

{¶ 209} “Proposition of Law No. II: The trial court committed

constitutional, reversible error when it instructed the jury during the penalty phase

of the proceedings.

{¶ 210} “Proposition of Law No. III: The trial court erred when it permitted

highly prejudicial, nonprobative and irrelevant evidence and testimony to be

introduced at the trial.

{¶ 211} “Proposition of Law No. IV: Computer generated digital

enhancement of fingerprints is not a reliable technic [sic] for analyzing fingerprints.

Admission of testimony at trial regarding computer enhanced fingerprints denied

appellant Hartman a fair trial and due process as guaranteed by the Fifth, Sixth,

Eighth and Fourteenth Amendments to the United States Constitution.

{¶ 212} “Proposition of Law No. V: It was error for the trial court to admit

the opinion of witnesses who had not first been qualified as an expert.

{¶ 213} “Proposition of Law No. VI: Persistent and pervasive prosecutorial

misconduct prejudicially affected the appellant’s constitutional rights and requires

reversal of his conviction and death sentence.

{¶ 214} “Proposition of Law No. VII: Defense counsel’s repeated acts and

ommissions [sic] deprived appellant of effective assistance of counsel as

guaranteed by the Sixth, Eight [sic], and Fourteenth Amendments to the United

States Constitution and Article I, §§ 9, 10, and 16 of the Ohio Constitution.

{¶ 215} “Proposition of Law No. VIII: Gruesome, prejudicial and

cumulative photographs were admitted into evidence even though there [sic]

prejudicial effect outweighed there [sic] probative value in violation of the Sixth,

Eighth and Fourteenth Amenments [sic] to the United States Constitution.

{¶ 216} “Proposition of Law No. IX: The trial court erred when it failed to

comply with the requirements of R.C. § 2929.03(F). The trial court’s opinion is

constitutionally defective and no independent review can cure tehse [sic] fatal

flaws.

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SUPREME COURT OF OHIO

{¶ 217} “Proposition of Law No. X: The death sentence in this case must

be vacated because the aggravating circumstance does not outweigh the mitigating

circumstances and the sentence of death is not appropriate.

{¶ 218} “Proposition of Law No. XI: The proportionality review that this

court must conduct in the present capital case pursuant to Ohio Revised Code

Section 2929.05 is fatally flawed and therefore the present death sentence must be

vacated pursuant to the Fifth, Eighth and Fourteenth Amendments to the United

States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio

Revised Code 2929.05.

{¶ 219} “Proposition of Law No. XII: The trial court committed

prejudicial, reversible error when it failed to instruct the jury of an essential element

of the kidnapping specification.

{¶ 220} “Proposition of Law No. XIII: Ohio’s death penalty law is

unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution

establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann.

§§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and

2929.05 (Anderson 1996), do not meet the prescribed constitutional requirements

and are unconstitutional on their face and as applied to Brett Hartman.”

__________________

Sherri Bevan Walsh, Summit County Prosecuting Attorney, Paul M. Maric

and Philip D. Bogdanoff, Assistant Prosecuting Attorneys, for appellee.

Irving B. Sugerman and Nathan A. Ray, for appellant.

__________________

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