State v. Jones

[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 335.]

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

[Cite as State v. Jones, 2001-Ohio-57.]

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

(No. 98-1483—Submitted October 10, 2000—Decided April 18, 2001.)

APPEAL from the Court of Common Pleas of Ashtabula County, No. 97-CR-221.

__________________

FRANCIS E. SWEENEY, SR., J.

{¶ 1} On November 17, 1997, a dispatcher for the Ashtabula City Police

Department advised officers that appellant Odraye G. Jones, an individual with

outstanding felony warrants, had been spotted in the 900 block of West 43rd Street

in Ashtabula. A week earlier, appellant had told his cousin, Jimmie Lee Ruth, that

he “was facing a lot of time for robbing Isaac Coleman” and that he “was going to

shoot at the police if they ever tried to arrest him.”

{¶ 2} Officer William D. Glover, Jr., responded to the dispatcher’s call.

Officer Glover found appellant with a friend, Anthony Gene Barksdale, and Jimmie

Lee Ruth walking together on West 43rd Street. Officer Glover followed the three

men to the home of one of their friends, Flo Chapman. Barksdale knocked on the

door of the Chapman home while Ruth and appellant stood behind him on the

porch. Officer Glover approached the Chapman home, got out of his car, and

beckoned to appellant. Ruth testified that Officer Glover told appellant, “[C]ome

on, you know why I’m here. I don’t want no problem. I’m just doing my job.”

Appellant jumped off the side of the porch and began running down the side of the

Chapman home. Officer Glover pursued him. Not long after the pursuit

commenced, appellant turned around, pulled a .38 caliber revolver from his pocket,

and began firing shots at Officer Glover.

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{¶ 3} After firing the first shot, appellant began to approach Officer Glover,

firing several more shots. Officer Glover fell to the ground. Appellant turned and

fled. He ran to a nearby fence and began to climb through a hole in it. Appellant

then stopped, turned around, and ran back to where Officer Glover lay. Appellant

kicked Officer Glover in the chest. The kick was done with such force that it left a

large bruise on Officer Glover’s chest that was visible to the paramedics who later

treated Officer Glover at the scene. After kicking Officer Glover, appellant fled the

scene.

{¶ 4} As Officer Glover was pursuing appellant, another Ashtabula City

Police Officer, Robert Stell, was en route in his patrol car. Officer Stell located

appellant several blocks away from the scene of the shooting, still running. Officer

Stell got out of his car and ordered appellant to stop. Appellant ignored the

command and continued running. Officer Stell pursued appellant on foot. Appellant

led Officer Stell into a nearby apartment complex. He stopped at the door of an

apartment and began attempting to force his way inside. While appellant managed

to squeeze part of his body through the door, the occupant of the apartment

prevented appellant from fully entering. As appellant was struggling to enter the

apartment, Officer Stell began to approach appellant. Officer Stell drew his weapon

and ordered appellant to the ground. Appellant did not immediately respond.

Appellant threw his revolver behind him. The gun landed in some nearby

shrubbery. Officer Stell again ordered appellant to the ground and, this time,

appellant complied. Officer Stell held appellant at gunpoint until assistance arrived.

Officers recovered the weapon and appellant was placed under arrest. This gun was

later matched to fired cartridge casings recovered at the scene of the shooting, live

cartridges found on appellant at the time of his arrest, and bullets taken from Officer

Glover’s body. All of the ammunition was hollow point. This type of ammunition

is designed to open up on impact, causing larger wounds.

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{¶ 5} Officer Glover had sustained gunshot wounds to the top of his head

and to the area just below his right eye. He also sustained a bullet wound to his right

shoulder. The gunshot wound to the top of Officer Glover’s head and the wound to

his face were both fired from a distance of less than one foot. The suddenness of

appellant’s attack had apparently caught Officer Glover by surprise. Officer

Glover’s duty weapon was found in Officer Glover’s holster. The holster’s strap

was snapped securely shut.

{¶ 6} Paramedics transported Officer Glover to Ashtabula County Medical

Center for emergency treatment. After Officer Glover’s condition had been

stabilized, he was life-flighted to Cleveland’s Metro-Health Hospital. X-rays and

CT scans revealed substantial damage to Officer Glover’s brain. Officer Glover had

severe cerebral swelling and profuse bleeding from his nose and mouth.

Neurological assessments revealed minimal brain stem function. Officer Glover

died from his gunshot wounds the following morning, November 18, 1997.

{¶ 7} The state charged appellant with the aggravated murder of Officer

Glover with prior calculation and design. This charge carried with it four

specifications. Under the first specification, appellant was charged with killing

Officer Glover for the purpose of escaping apprehension for his earlier aggravated

robbery offense (R.C. 2929.04[A][3]). The second and third specifications charged

appellant with knowingly and purposefully causing the death of a law enforcement

officer (R.C. 2929.04[A][6]). The fourth specification charged appellant with using

a firearm in the killing of Officer Glover (R.C. 2941.145).

{¶ 8} Appellant was found guilty as charged in a jury trial, and the case

proceeded to the penalty phase. The trial court merged the second and third death

penalty specifications and instructed the jury to consider only the first and second.1

1. The fourth specification of which defendant was convicted, the firearm specification, is not an

aggravating circumstance warranting the death penalty under R.C. 2929.04(A). The jury was

therefore instructed to disregard this specification in the penalty phase.

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Following a hearing, the jury recommended that appellant be sentenced to death.

The trial court concurred. In addition to imposing the sentence of death, the trial

court sentenced the defendant to a three-year mandatory term of imprisonment on

the firearm specification.

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

{¶ 10} Appellant has raised fifteen propositions of law (see Appendix),

which we have considered fully. We have considered the death penalty for

appropriateness and proportionality and we have independently weighed the

aggravating circumstances against the evidence presented in mitigation. For the

reasons that follow, we affirm appellant’s convictions and the sentence imposed.

PRETRIAL ISSUES

Restrictions on Voir Dire

{¶ 11} In his first proposition of law, appellant argues that he should have

been permitted to ask prospective jurors about their views on specific mitigating

factors. Appellant suggests that the trial court’s refusal to permit this line of

questioning left several jurors confused as to the meaning of mitigation. Appellant

believes that his inability to ask about specific mitigating factors, coupled with juror

confusion about the meaning of mitigation, limited his ability to uncover potential

biases in prospective jurors and may have resulted in the empanelling of jurors who

were unwilling to consider mitigating factors.

{¶ 12} During voir dire, a trial court is under no obligation to discuss, or to

permit the attorneys to discuss, specific mitigating factors. See State v. Wilson

(1996), 74 Ohio St.3d 381, 385-386, 659 N.E.2d 292, 300-301; State v. Lundgren

(1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304, 315. Realistically, jurors cannot

be asked to weigh specific factors until they have heard all the evidence and been

fully instructed on the applicable law. Id. We reject appellant’s first proposition of

law.

Juror Bias

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{¶ 13} In his third proposition of law, appellant contends that several errors

committed during voir dire require us to order a retrial. First, appellant argues that

the prosecutors’ use of peremptory challenges to exclude those jurors who

expressed reservations about the death penalty denied him his right to a fair and

impartial jury. This argument lacks merit. It is well established that “death-

qualifying a jury ‘does not deny a capital defendant a trial by an impartial jury.’ ”

State v. Dunlap (1995), 73 Ohio St.3d 308, 315, 652 N.E.2d 988, 995, quoting State

v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph two

of the syllabus. Indeed, prosecutors may even exclude a juror for cause when the

juror’s views on capital punishment “would prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.” Wainwright v. Witt (1985), 469 U.S. 412, 433, 105 S.Ct. 844, 857, 83

L.Ed.2d 841, 857, followed in Dunlap at 315, 652 N.E.2d at 995.

{¶ 14} Second, appellant argues that the trial court erred in failing to excuse

two jurors for cause. The first juror is Juror Lance McCollum, who appellant

suggests should have been dismissed sua sponte. Juror McCollum testified during

voir dire that he had discussed the case with his ex-father-in-law, the former chief

of police of Ashtabula. McCollum stated that he was, to some degree, biased against

the defense. However, McCollum also stated that he would try to disregard the

conversation with his ex-father-in-law, would decide the case only on the evidence,

and would accord the accused the usual presumption of innocence.

{¶ 15} We find no error in the trial court’s decision not to excuse Juror

McCollum. The conversation between McCollum and his ex-father-in-law did not,

by itself, require McCollum’s exclusion. While fairness requires that jurors be

impartial, jurors need not be totally ignorant of the facts and issues involved. State

v. Sheppard (1998), 84 Ohio St.3d 230, 235, 703 N.E.2d 286, 292. The trial court

was entitled to accept McCollum’s assurances that he would be fair and impartial

and would decide the case on the basis of the evidence. “[D]eference must be paid

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to the trial judge who sees and hears the juror.” Wainwright, 469 U.S. at 426, 105

S.Ct. at 853, 83 L.Ed.2d at 853. Furthermore, appellant has waived any potential

error by failing to challenge the prospective juror at trial. State v. Smith (1997), 80

Ohio St.3d 89, 105, 684 N.E.2d 668, 685.

{¶ 16} Appellant also contends that the trial court erred in denying a

challenge for cause brought against another prospective juror, a Mr. Shears, who

testified during voir dire that, according to his religious beliefs, one who takes the

life of another should “automatically” lose his own life. However, Mr. Shears

further testified that he would follow the law and that he was capable of considering

a penalty less than death.

{¶ 17} Here again, the trial court’s determination that Juror Shears’s

scriptural beliefs would not prevent or impair his ability to perform his duties as a

juror is entitled to deference. Wainwright, 469 U.S. at 426, 105 S.Ct. at 853, 83

L.Ed.2d at 853. Where, as here, a juror gives conflicting answers, it is for the trial

court to determine which answer reflects the juror’s true state of mind. State v.

Webb (1994), 70 Ohio St.3d 325, 339, 638 N.E.2d 1023, 1035-1036. Appellant’s

third proposition of law is overruled.

Change of Venue

{¶ 18} Appellant argues in his fourth proposition of law that the trial court’s

denial of his request to change venue violated his rights under the Sixth and

Fourteenth Amendments to the United States Constitution. Appellant based his

request for a change of venue on the fact that only a handful of the original jury

pool were African-Americans and that none of these individuals found their way

onto the jury. Defense counsel pointed out to the trial court that the demographics

of Ashtabula County resulted in African-Americans being unable to serve. Defense

counsel noted that in Ashtabula County, there is only one central area where most

African-Americans live and that this is the area in which the crime occurred. Thus,

appellant’s counsel argued, holding the trial in Ashtabula County virtually

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eliminated African-Americans as potential jurors because most people in the area

were either aware of the details of the crime or knew the parties or their families.

The trial court rejected appellant’s request, relying upon a recent decision from this

court, State v. Moore (1998), 81 Ohio St.3d 22, 28, 689 N.E.2d 1, 9, which held

that it is constitutional to rely upon voter registration rolls as exclusive sources for

jury selection, as the trial court did in the instant case.

{¶ 19} “[T]he selection of a petit jury from a representative cross section of

the community is an essential component of the Sixth Amendment right to a jury

trial.” Taylor v. Louisiana (1975), 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d

690, 697. However, the Sixth Amendment does not require that petit juries “mirror

the community and reflect the various distinctive groups in the population.” Id. at

538, 95 S.Ct. at 702, 42 L.E.2d at 703. Under the Sixth Amendment, “[d]efendants

are not entitled to a jury of any particular composition, * * * but the jury wheels,

pools of names, panels, or venires from which juries are drawn must not

systematically exclude distinctive groups in the community and thereby fail to be

reasonably representative thereof.” Id.

{¶ 20} In Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d

579, the United States Supreme Court held that in order to establish a prima facie

violation of the Sixth Amendment’s fair cross-section requirement, a defendant

must demonstrate “(1) that the group alleged to be excluded is a ‘distinctive’ group

in the community; (2) that the representation of this group in venires from which

juries are selected is not fair and reasonable in relation to the number of such

persons in the community; and (3) that the underrepresentation is due to systematic

exclusion of the group in the jury-selection process.” Id. at 364, 99 S.Ct. at 668, 58

L.Ed.2d at 587. Accord State v. Fulton (1991), 57 Ohio St.3d 120, 566 N.E.2d 1195,

paragraph two of the syllabus.

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{¶ 21} In reviewing the propriety of appellant’s arguments concerning the

jury venire in the instant case, we find that appellant has failed to establish all of

the elements of a prima facie violation of the fair cross-section requirement.

{¶ 22} Appellant has satisfied the first prong of the Duren analysis. For

purposes of the fair cross-section analysis, African-Americans are a distinctive

group. United States v. Buchanan (C.A.6, 2000), 213 F.3d 302, 310; United States

v. Rioux (C.A.2, 1996), 97 F.3d 648, 654. However, appellant has not satisfied the

remaining prongs of Duren. With respect to the second prong, for example,

appellant has come forward with no evidence to suggest that African-Americans in

Ashtabula County are unfairly represented in venires in relation to their number in

the community. He merely alleges that African-Americans were not adequately

represented on his particular venire and jury.

{¶ 23} Even if the appellant’s venire was underrepresentative, the appellant

has not presented any evidence of “systematic exclusion” as required under the

third prong of Duren. Appellant must do more than show that his particular panel

was unrepresentative. Where, as here, the trial court relies upon voter registration

lists, the defendant-appellant “must demonstrate that the voter-registration

qualifications are suspect, or that the jury-selection procedure is administered in a

discriminatory manner.” United States v. Ireland (C.A.8, 1995), 62 F.3d 227, 231.

There is nothing inherently unconstitutional about using voter-registration rolls as

exclusive sources for jury selection. Moore, 81 Ohio St.3d at 28, 689 N.E.2d at 9.

Because appellant has failed to demonstrate systematic discrimination, we reject

his Sixth Amendment claim.

{¶ 24} A defendant may also bring a federal equal protection challenge to

the selection and composition of the petit jury. Fulton, 57 Ohio St.3d at 123-124,

566 N.E.2d at 1200, citing Duren, 439 U.S. at 368, 99 S.Ct. at 670, 58 L.Ed.2d at

589, fn. 26. To establish this equal protection claim, the defendant must “adduc[e]

statistical evidence which shows a significant discrepancy between the percentage

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of a certain class of people in the community and the percentage of that class on the

jury venires, which evidence tends to show discriminatory purpose.” Id. This

evidence is then subject to rebuttal evidence suggesting that either no

discriminatory purpose was involved or that such purpose had no “determinative

effect.” Id.; Duren, 439 U.S. at 368, 99 S.Ct. at 670, 58 L.Ed.2d at 589, fn. 26.

{¶ 25} The appellant has offered no statistical evidence showing a

discrepancy between the percentage of African-Americans in Ashtabula County

and the percentage of African-Americans on jury venires. We therefore reject

appellant’s equal protection argument. Having rejected appellant’s arguments

under the Sixth and Fourteenth Amendments, we find that the trial court did not err

in denying appellant’s motion for a change of venue.

Choice of Counsel

{¶ 26} In his fifth proposition of law, appellant argues that the trial court

denied him the right to counsel guaranteed under the Sixth Amendment to the

United States Constitution. On May 14, 1998, approximately two hours after the

jury was sworn, Attorney David Per Due filed an entry of appearance with the trial

court. The following morning, a hearing was held. Present at this hearing were

appellant’s court-appointed counsel, the prosecution, and Per Due. Appellant

indicated to the trial court that he wanted Per Due to represent him. Appellant stated

that he had a “conflict of interest” with the court-appointed attorneys who had been

representing him to that point. Specifically, appellant felt that his court-appointed

attorneys were “mostly concerned with saving [his] life.” He further stated that “if

[they] can’t win the case for me, then [they] can’t do nothing for me.” Appellant’s

court-appointed attorneys explained to the trial court that their relationship with the

appellant had been “pretty good” and that there existed an open line of

communication between themselves and appellant. They acknowledged appellant’s

concern that they were not concentrating upon acquittal. They further noted that

appellant was concerned that the relationship between themselves and the

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prosecution had, to that point, been too cordial. Appellant concurred with this

assessment.

{¶ 27} The trial court offered to let Per Due assist appellant’s court-

appointed counsel. However, the trial court would not allow Per Due to act as lead

counsel because he had not been death-penalty certified by this court. When the

court asked Per Due if he would be ready to commence with trial the following

Monday, he responded, “Absolutely not.” Instead, Per Due requested a four-month

continuance. He further indicated that he would be unwilling to assist appellant’s

court-appointed attorneys as third counsel.

{¶ 28} The court denied Per Due’s motions for entry and a continuance,

concluding that the relationship between appellant and his court-appointed

attorneys did not warrant a change in counsel. The court further concluded that the

request for continuance was made in bad faith and for purposes of delay. The trial

court noted that there had never been, up to that point, any indication that there was

a lack of cooperation or trust between appellant and his attorneys.

{¶ 29} “The grant or denial of a continuance is a matter [that] is entrusted

to the broad, sound discretion of the trial judge. An appellate court must not reverse

the denial of a continuance unless there has been an abuse of discretion.” State v.

Unger (1981), 67 Ohio St.2d 65, 67, 21 O.O.3d 41, 43, 423 N.E.2d 1078, 1080. In

evaluating a motion for a continuance, a trial court should consider, inter alia, the

length of the delay requested; the inconvenience to the litigants, witnesses,

opposing counsel, and the court; and whether the requested delay is for legitimate

reasons or whether it is dilatory, purposeful, or contrived. Id. at 67-68, 21 O.O.3d

at 43, 423 N.E.2d at 1080.

{¶ 30} The trial court acted within the bounds of its discretion in denying

the motion for continuance. Because the trial had already commenced, the lengthy

delay requested by appellant and Per Due would have greatly inconvenienced

everyone involved in the case, including the witnesses, the prosecution, the trial

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court, and the jury, which had already been sworn. Given the timing of the motion,

and the fact that appellant had never, up to that point, expressed any concerns about

his court-appointed counsel, it was reasonable for the trial court to conclude that

the continuance was requested in bad faith and for purposes of delay.

{¶ 31} Because Per Due adamantly refused to immediately proceed with

trial, the trial court’s refusal to grant the continuance effectively denied appellant

the services of Per Due. We reject appellant’s contention that this denial violated

his Sixth Amendment right to counsel.

{¶ 32} “[W]hile the right to select and be represented by one’s preferred

attorney is comprehended by the Sixth Amendment, the essential aim of the

Amendment is to guarantee an effective advocate * * * rather than to ensure that a

defendant will inexorably be represented by the lawyer whom he prefers.” Wheat

v. United States (1988), 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140,

148. Thus, “[a] defendant has only a presumptive right to employ his own chosen

counsel.” (Emphasis sic.) State v. Keenan (1998), 81 Ohio St.3d 133, 137, 689

N.E.2d 929, 937. Factors to consider in deciding whether a trial court erred in

denying a defendant’s motion to substitute counsel include “the timeliness of the

motion; the adequacy of the court’s inquiry into the defendant’s complaint; and

whether the conflict between the attorney and client was so great that it resulted in

a total lack of communication preventing an adequate defense.” United States v.

Jennings (C.A.6, 1996), 83 F.3d 145, 148. In addition, courts should “balanc[e] *

* * the accused’s right to counsel of his choice and the public’s interest in the

prompt and efficient administration of justice.” Id. Decisions relating to the

substitution of counsel are within the sound discretion of the trial court. Wheat, 486

U.S. at 164, 108 S.Ct. at 1700, 100 L.Ed.2d at 152.

{¶ 33} The trial court conducted an extensive inquiry into the appellant’s

relationship with his court-appointed counsel. The record supports the trial court’s

determination that any problems between appellant and his attorneys had not led to

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a total lack of communication. Indeed, both appellant and his attorneys agreed that

the lines of communication between them were open. In balancing the accused’s

right to the representation of his chosen counsel against the interests of the public

in the prompt and efficient administration of justice, the trial court correctly found

that the public’s interests outweighed those of the appellant. Accordingly, we find

no abuse of discretion in the trial court’s refusal to substitute Per Due for court-

appointed counsel. We must therefore overrule appellant’s fifth proposition of law.

TRIAL ISSUES

Admissibility of Evidence

{¶ 34} In his sixth proposition of law, appellant argues that the trial court

erred during the guilt phase in admitting evidence concerning the efforts made to

save Officer Glover’s life. Specifically, appellant challenges the admission of

evidence concerning Officer’s Glover’s difficulty in breathing, his internal bleeding

and brain injury, and the consultations between medical personnel and Officer

Glover’s family. Appellant also challenges the introduction of Officer Glover’s

medical records. Appellant contends that this evidence was both irrelevant and

unduly prejudicial. Because appellant’s counsel failed to object to the admission of

this evidence at trial, he now waives all but plain error. State v. Joseph (1995), 73

Ohio St.3d 450, 455, 653 N.E.2d 285, 291. “Plain error does not exist unless, but

for the error, the outcome at trial would have been different.” Id.

{¶ 35} For the most part, the medical evidence that appellant now

challenges illustrated the nature and circumstances of the crime, including the

physical condition and circumstances of the victim. This type of evidence is

relevant and admissible. State v. Lorraine (1993), 66 Ohio St.3d 414, 420, 613

N.E.2d 212, 218. “The victi[m] cannot be separated from the crime.” Id. at 420,

613 N.E.2d at 218-219. Furthermore, evidence detailing the impact of the crime on

the victim’s family is admissible when, as here, it is coupled with evidence

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depicting the circumstances surrounding the crime. State v. Fautenberry (1995), 72

Ohio St.3d 435, 440, 650 N.E.2d 878, 883.

{¶ 36} Assuming, arguendo, that the medical evidence admitted by the trial

court was unduly prejudicial or cumulative in nature, we find that its admission

does not constitute plain error. There is no doubt that the jury would have convicted

appellant even if it had never been presented with this evidence. The evidence

produced at trial clearly established that the appellant committed the charged

crimes. As for admission of this medical evidence at the sentencing phase, we find

that, given the severity of the aggravating circumstances, admission of the medical

evidence could not have had a determinative effect upon the trial court’s sentencing

decision. In sum, we conclude that admission of the medical evidence, even if error,

did not work to the material prejudice of the appellant. Therefore, appellant’s sixth

proposition of law is overruled.

{¶ 37} In his seventh proposition of law, appellant points to three items of

evidence that he believes should not have been admitted at trial. Appellant contends

that the admission of this evidence constituted reversible error.

{¶ 38} The first item of evidence consists of testimony from Officer Stell,

the arresting officer. On direct examination, the prosecution examined Officer Stell

regarding the day of the shooting and the moment at which he recognized appellant

and began his foot pursuit. The prosecution asked Officer Stell to explain how he

was able to recognize appellant. Officer Stell responded, “[F]rom times we have

had him in our jail.” Defense counsel objected. The trial court sustained the

objection and instructed the jury to disregard Officer Stell’s comment about

appellant’s being in jail.

{¶ 39} Appellant also challenges testimony from Anthony Barksdale.

During the prosecution’s redirect examination of this witness, the prosecution

asked whether the witness had been given a lie detector test. Defense counsel

objected, but before the court could rule, the witness responded affirmatively. The

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trial court sustained the objection and instructed the jury to disregard the question.

The trial court also admonished the prosecution not to make any further references

to the lie detector test.2 The defense counsel moved the trial court for a mistrial.

The trial court did not grant this motion.

{¶ 40} With respect to the testimony of both Officer Stell and Anthony

Barksdale, we find no error in the trial court’s reliance upon curative instructions

and its refusal to grant a mistrial in response to Barksdale’s testimony. The jury is

presumed to have followed the court’s instructions. State v. Raglin (1998), 83 Ohio

St.3d 253, 264, 699 N.E.2d 482, 492.

{¶ 41} Finally, appellant argues that the trial court erred in admitting certain

“inflammatory statements” made by appellant. Specifically, appellant refers to the

following statement he made just prior to arraignment: “If I had my SKS [Russian

assault rifle], I would have killed 16 of you mother fuckers,” referring to the police.

Appellant also objects to the admission of his statement to Jimmie Lee Ruth that

appellant “was going to shoot at the police if they ever tried to arrest him.”

Appellant contends that, under Evid.R. 403(A),3 these statements should not have

been admitted because their potential prejudicial effect substantially outweighed

their probative value. We disagree.

{¶ 42} Both statements were of considerable probative value. Appellant’s

first statement regarding his assault rifle and what he would do with it helped to

prove appellant’s identity as the shooter in this case and helped to establish his

intent to kill a police officer. Similarly, appellant’s statement to Jimmie Lee Ruth

helped to establish that he killed Officer Glover with prior calculation and design.

2. In Ohio, the results of a polygraph examination are admissible in evidence in a criminal trial for

purposes of corroboration or impeachment only when the prosecution and defense stipulate to their

admissibility. State v. Souel (1978), 53 Ohio St.2d 123, 7 O.O.3d 207, 372 N.E.2d 1318, syllabus.

3. Evid.R. 403(A) provides: “Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.”

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It also tended to support the state’s charges that appellant’s specific purpose was to

kill a police officer and that he killed to escape apprehension for aggravated

robbery. We find no abuse of discretion in the trial court’s determination that the

probative value of these statements outweighed their potential prejudicial effect.

We reject appellant’s seventh proposition of law.

Sufficiency of the Evidence

{¶ 43} In his eighth proposition of law, appellant argues that the state failed

to prove, beyond a reasonable doubt, that he killed Officer Glover with prior

calculation and design. According to appellant, the trial court erred in submitting

this issue to the jury.

{¶ 44} When reviewing the sufficiency of the evidence to support a criminal

conviction, the relevant inquiry is whether, after reviewing the evidence in the 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. Stallings

(2000), 89 Ohio St.3d 280, 289, 731 N.E.2d 159, 171. “[T]he phrase ‘prior

calculation and design’ * * * indicate[s] studied care in planning or analyzing the

means of the crime as well as a scheme encompassing the death of the victim.”

State v. Taylor (1997), 78 Ohio St.3d 15, 19, 676 N.E.2d 82, 88. The amount of

care or time that the defendant spends in planning and analyzing the crime are not

critical factors in themselves; however, they “must amount to more than momentary

deliberation.” Id. In short, there is no bright-line test for determining the existence

of prior calculation and design. Id. at 20, 676 N.E.2d at 89. “[E]ach case turns on

the particular facts and evidence presented at trial.” Id.

{¶ 45} Whether a defendant’s prior statement of intent to kill a police

officer constitutes evidence of prior calculation and design depends largely upon

the totality of other facts and circumstances surrounding the killing. In State v. Reed

(1981), 65 Ohio St.2d 117, 120-121, 19 O.O.3d 311, 313-314, 418 N.E.2d 1359,

1362-1363, we held that a defendant’s isolated statement that “if a cop got in his

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way [during a robbery] he would blow him away” did not, by itself, establish prior

calculation and design when the totality of the facts and circumstances indicated

that the killing resulted from an instantaneous deliberation. More recently, in State

v. White (1998), 82 Ohio St.3d 16, 24, 693 N.E.2d 772, 779-780, we suggested that

such statements could be used to establish prior calculation and design. The

distinguishing factor in the White decision was the presence of other evidence

establishing prior calculation and design. Unlike in Reed, the defendant’s threat to

kill a police officer in White was repeated several times. In White, there was also

evidence presented at trial indicating that the defendant, who was on probation,

would do whatever necessary to avoid being returned to prison. Here, as in White,

the totality of facts and circumstances surrounding the killing, including the manner

in which appellant killed Officer Glover, clearly indicates that appellant’s act of

killing was not an instantaneous decision and that his prior statement of intent to

kill a police officer was not merely an idle threat. Accordingly, we are willing to

consider appellant’s threat as evidence of prior calculation and design.

{¶ 46} Viewing the evidence in the light most favorable to the prosecution,

we find that the jury could have found the element of prior calculation and design

proven beyond a reasonable doubt. Shortly before the murder, appellant informed

his cousin that he “was going to shoot at the police if they ever tried to arrest him.”

On the day of the murder, appellant was armed with a .38 caliber revolver. When

approached by the police, appellant followed up on his promise to his cousin,

executing Officer Glover with two point-blank gunshots to the head. This evidence

clearly establishes, beyond a reasonable doubt, that appellant killed Officer Glover

with prior calculation and design.

{¶ 47} Appellant also argues in his eighth proposition of law that the state

failed to prove that he killed Officer Glover for the purpose of escaping

apprehension for aggravated robbery, the first death penalty specification.

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Appellant contends that the prosecution bore the burden of proving his commission

of the aggravated robbery offense beyond a reasonable doubt.

{¶ 48} The state argues that appellant waived this claim by failing to raise

the issue at trial. We disagree. Appellant’s “not guilty” plea preserved his right to

object to the alleged insufficiency of the evidence proving the prior offense. See

State v. Carter (1992), 64 Ohio St.3d 218, 223, 594 N.E.2d 595, 599.

{¶ 49} R.C. 2929.04 sets forth the criteria for imposing the sentence of

death for the commission of a capital offense. The statute provides that the death

penalty may be imposed when it is proven beyond a reasonable doubt that the

capital offense “was committed for the purpose of escaping detection,

apprehension, trial, or punishment for another offense committed by the offender.”

(Emphasis added.) R.C. 2929.04(A)(3). Appellant contends that, under this statute,

the state must prove that the defendant committed the offense for which he sought

to avoid apprehension by proof beyond a reasonable doubt. We agree.

{¶ 50} Appellant’s interpretation of R.C. 2929.04(A)(3) is consistent with

both the statute’s plain language and established constitutional law. R.C.

2929.04(A) plainly states that all of the aggravating circumstances listed therein,

including that contained in subsection (A)(3), must be proven beyond a reasonable

doubt. Indeed, conviction under any lesser standard of proof would be inconsistent

with the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. It is axiomatic that the state must prove each and every element of an

offense beyond a reasonable doubt. See Jackson v. Virginia (1979), 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560; In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068,

25 L.Ed.2d 368. We find that the defendant’s commission of the prior offense

constitutes an essential element of the R.C. 2929.04(A)(3) specification. Had the

General Assembly intended that the death penalty be applied to those who simply

attempt to avoid apprehension on a warrant, it would not have included the words

“committed by the offender.”

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{¶ 51} We conclude, however, that in the case sub judice, the state proved,

beyond a reasonable doubt, that appellant had committed the prior offense for

which he sought to avoid apprehension. The state introduced evidence that a week

before the killing, appellant told his cousin Jimmie Ruth that he “was facing a lot

of time for robbing Isaac Coleman.” Appellant’s admission proves beyond a

reasonable doubt that he committed the prior offense of aggravated robbery. We

therefore affirm appellant’s conviction on the R.C. 2929.04(A)(3) specification.

Trial Phase Instructions

{¶ 52} In his ninth proposition of law, appellant challenges three jury

instructions. Because appellant failed to object to these instructions during the trial,

he now waives all but plain error. Joseph, 73 Ohio St.3d at 455, 653 N.E.2d at 291.

{¶ 53} Appellant challenges the trial court’s reasonable doubt instruction,

which the court recited verbatim from R.C. 2901.05(D). Appellant argues that this

instruction unconstitutionally permits juries to convict upon a standard of proof

below proof beyond a reasonable doubt. We summarily reject this argument. We

have repeatedly affirmed the constitutionality of R.C. 2901.05(D)’s definition of

reasonable doubt. See State v. Hessler (2000), 90 Ohio St.3d 108, 115, 734 N.E.2d

1237, 1246; State v. Getsy (1998), 84 Ohio St.3d 180, 202, 702 N.E.2d 866, 888.

{¶ 54} Appellant also challenges the trial court’s instruction on the two

separate elements of purpose and prior calculation and design. Appellant argues

that the court’s instruction equated the two concepts and essentially directed a

verdict on the element of prior calculation and design.

{¶ 55} The record does not support appellant’s contention that the trial court

equated purpose with prior calculation and design. The court defined “purpose” as

“a decision of the mind to do an act with a conscious objective of producing a

specific result.” It noted that the terms “purpose” and “intent” are synonymous.

While the court went on to explain how the element of “prior calculation and

design” relates to the element of “purpose,” the court’s instruction in no way

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confused these elements. The court explained that “prior calculation and design”

means that “the purpose to cause the death was reached by a definite process of

reasoning in advance of the homicide, which process of reasoning must have

included a mental plan involving studied consideration of the method and means

with which to cause the death of another.” The court further explained that prior

calculation and design includes “planning,” “a scheme designed to carry out the

calculated decision to cause the death.” Finally, the court noted that prior

calculation and design does not include “spur of the moment” decisions. We find

no error in these instructions. The instructions are consistent with the standardized

Ohio Jury Instructions and our own definitions of these elements. See 4 Ohio Jury

Instructions (1997), Sections 409.01 and 503.01(A)(4); R.C. 2901.22(A) (defining

“purposeful” action); State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381

N.E.2d 190, paragraph three of the syllabus (defining “prior calculation and

design”).

{¶ 56} Finally, appellant argues that the trial court improperly shifted the

burden of proof from the state to the defense when it instructed the jury to deliberate

on the guilt “or innocence” of appellant. The trial court instructed the jury that in

the guilt phase of the trial they should “not consider at this time or in any way

discuss the subject matter of punishment.” The court instructed the jury that its duty

was “confined to the determination of the guilt or innocence of the defendant.”

Appellant contends that a reasonable jury would have understood this instruction

to mean that the defendant bore the burden of putting forward evidence of his

innocence.

{¶ 57} We disagree with appellant’s suggestion that the trial court’s

instruction effectively shifted the burden of proof from the state to the defendant.

Any reasonable juror would have taken the instruction as nothing more than a

warning not to consider punishment during the guilt phase. “A single instruction to

a jury may not be judged in artificial isolation but must be viewed in the context of

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the overall charge.” State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398

N.E.2d 772, paragraph four of the syllabus. Given the trial court’s repeated

instruction to the jury that the state bore the burden of proving guilt beyond a

reasonable doubt, no reasonable juror could have concluded that the single

instruction set forth above shifted the burden of proof to the defendant.

SENTENCING ISSUES

Duplicative Death Penalty Specifications

{¶ 58} In his tenth proposition of law, appellant argues that the trial court

erred in failing to merge the R.C. 2929.04(A)(3) and (A)(6) death penalty

specifications. These specifications represent, respectively, killing to escape

apprehension and killing a law enforcement officer.

{¶ 59} Where two or more aggravating circumstances arise from the same

act or indivisible course of conduct, they are duplicative and must be merged for

purposes of sentencing. Jenkins, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264,

paragraph five of the syllabus. Merger is not required when the aggravating

circumstances arise from a divisible course of conduct. State v. Robb (2000), 88

Ohio St.3d 59, 85, 723 N.E.2d 1019, 1047.

{¶ 60} Appellant’s act of fleeing and his killing of Officer Glover were part

of a divisible course of conduct. Therefore, merger of the R.C. 2929.04(A)(3) and

(A)(6) death penalty specifications was unnecessary. Appellant’s purpose to escape

apprehension for his prior robbery offense is demonstrated by his fleeing when

Officer Glover approached him at the Chapman home. Although appellant killed

Officer Glover after fleeing, the circumstances surrounding the killing reveal that

it was a distinct, divisible act. When appellant had drawn his weapon and aimed it

at Officer Glover, he had stopped running. Appellant fired shots at Officer Glover

while walking toward him. Appellant’s killing of Officer Glover was clearly a

separate act, which demonstrated a separate animus. The killing was in no way

implicit in appellant’s decision to flee Officer Glover. Id. See, also, White, 82 Ohio

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January Term, 2001

St.3d 16, 693 N.E.2d 772 (R.C. 2929.04[A][3] and [A][6] specifications treated as

separate).

Penalty Phase Instructions

{¶ 61} In his twelfth proposition of law, appellant challenges several of the

trial court’s instructions to the jury at the penalty phase. First, appellant argues that

the trial court erred when it instructed the jury that “only that testimony and

evidence which was presented in the first phase that is relevant to the aggravating

circumstances [appellant] was found guilty of committing, or to any of the

mitigating factors that will be described below, is to be considered by you.”

Appellant suggests that this instruction improperly permitted the jury to determine

what evidence was relevant. Because appellant failed to raise this issue in the trial

court, he waives all but plain error. Joseph, 73 Ohio St.3d at 455, 653 N.E.2d at

291. We find no plain error here.

{¶ 62} The trial court’s instruction was ambiguous as to whether relevance

was to be determined by the court or the jury. We agree that the trial court’s

instruction could reasonably be interpreted by one or more members of the jury as

implying that it was their responsibility to determine the relevance of evidence

presented during the first phase of trial. Of course, jurors may also have interpreted

the court’s statement as instructing them to consider only that evidence that the

court deemed relevant. This interpretation is particularly plausible given that

immediately after the trial court gave the challenged instruction, it further instructed

the jury that it would allow it to consider during deliberations only those exhibits

which it, as the trial court, determined to be relevant.

{¶ 63} To the extent that the jury interpreted the trial court’s instruction as

allowing them to determine relevancy, the trial court misled the jury. It is “the trial

court’s responsibility, not the jury’s, to determine what evidence [is] relevant.”

Getsy, 84 Ohio St.3d at 201, 702 N.E.2d at 887. We find, however, that the trial

court’s misstatement did not prejudice the outcome of this case. Much of the trial

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phase evidence was relevant at the sentencing phase because it was related to the

aggravating circumstances, the nature and circumstances of the offense, and the

asserted mitigating factors. See State v. Gumm (1995), 73 Ohio St.3d 413, 653

N.E.2d 253, syllabus. Moreover, we find that the aggravating circumstances in this

case outweigh the mitigating evidence. Therefore, no basis exists for finding

outcome-determinative plain error in the trial court’s instruction on relevance.

{¶ 64} Appellant also challenges, in his twelfth proposition of law, the trial

court’s denial of defense counsel’s requested instruction that a sole juror could

prevent a verdict of death. We find no error in the trial court’s instruction. Trial

courts must instruct juries that “[i]n Ohio, a solitary juror may prevent a death

penalty recommendation by finding that the aggravating circumstances in the case

do not outweigh the mitigating factors.” State v. Brooks (1996), 75 Ohio St.3d 148,

162, 661 N.E.2d 1030, 1042. In advising juries of the need for a unanimous verdict,

no specific language has to be used as long as the “substance” of what the jury must

determine is included in the charge given. See State v. Goff (1998), 82 Ohio St.3d

123, 129, 694 N.E.2d 916, 922.

{¶ 65} The substance of the trial court’s charge adequately conveyed the

need for unanimity. The court instructed the jury that “[i]n order for you to decide

that the sentence of death shall be imposed upon [the appellant], the State of Ohio

has the burden to prove to each member of this jury beyond a reasonable doubt that

the aggravating circumstances * * * outweigh the factors in mitigation.” At another

point in its charge, the trial court instructed that “all twelve members” of the jury

had to find that the aggravating circumstances outweigh mitigation before death

could be imposed. Finally, the trial court instructed that the jury had to consider life

sentence options “if any one or more of you conclude the State has failed to prove

that the aggravating circumstances outweigh the mitigating factors.” The need for

a unanimous verdict was more than adequately conveyed by these instructions.

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January Term, 2001

{¶ 66} Finally, appellant argues that the trial court denied him due process

of law when it failed to instruct the jury on the issue of sympathy. We summarily

reject this argument. It is well established that sympathy and mercy are not relevant

sentencing criteria. See Taylor, 78 Ohio St.3d at 30, 676 N.E.2d at 96; State v. Allen

(1995), 73 Ohio St.3d 626, 638, 653 N.E.2d 675, 687.

Constitutional Error in the Trial Court’s Sentencing Opinion

{¶ 67} In his fourteenth proposition of law, appellant challenges two

aspects of the trial court’s sentencing opinion. First, appellant contends that the

court failed to properly consider psychological evidence submitted under R.C.

2929.04(B)(7). R.C. 2929.04(B)(7) requires trial courts to consider, in addition to

the specific mitigating factors set forth in R.C. 2929.04(B), “[a]ny other factors that

are relevant to the issue of whether the offender should be sentenced to death.”

{¶ 68} We conclude that the trial court thoroughly considered the evidence

submitted by the appellant under R.C. 2929.04(B)(7). The trial court made specific

findings as to the existence of appellant’s psychological disorders as required under

R.C. 2929.03(F). The court found that this mitigation evidence was entitled to little

weight. Specifically, the court weighed against appellant’s mitigation evidence

other evidence that appellant’s psychological disorders did not prevent him from

understanding the criminality of his conduct or conforming his conduct to the

requirements of the law. The trial court concluded that this evidence, along with

evidence that appellant was fairly sophisticated and intelligent, required that the

psychological disorders be accorded little weight. The court acted well within its

discretion in making this determination. “ ‘[T]he assessment and weight to be given

mitigating evidence are matters for the trial court’s determination.’ ” State v. Mitts

(1998), 81 Ohio St.3d 223, 235, 690 N.E.2d 522, 532, quoting State v. Lott (1990),

51 Ohio St.3d 160, 171, 555 N.E.2d 293, 305.

{¶ 69} Appellant contends that the trial court’s reference to appellant’s

ability to conform his conduct to the requirements of the law suggests that the court

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confused appellant’s psychological evidence, offered by the defense under the R.C.

2929.04(B)(7) catchall provision, with evidence offered under R.C. 2929.04(B)(3),

a provision that makes the defendant’s ability to conform his conduct to the

requirements of the law a mitigating factor. Appellant’s argument lacks any merit.

We fail to see how the trial court’s alleged weighing of the psychological evidence

under (B)(3) rather than (B)(7) could possibly have prejudiced the appellant,

especially in light of the fact that the trial court weighed the psychological evidence

against other evidence unrelated to (B)(3), namely, appellant’s intelligence. In any

event, “[t]he process of weighing mitigating factors * * * is a matter for the

discretion of the individual decisionmaker.” State v. Fox (1994), 69 Ohio St.3d 183,

193, 631 N.E.2d 124, 132. We find no abuse of that discretion here.

{¶ 70} In his fourteenth proposition of law, appellant also argues that the

trial court improperly accorded “exceptional weight” to the fact that the victim in

this case was a law enforcement officer—the R.C. 2929.04(A)(6) aggravating

circumstance. Appellant accuses the trial court of creating “a kind of ‘super’

aggravating circumstance that no amount of mitigation could outweigh.”

Specifically, appellant challenges the trial court’s statement that “the act of killing

a police officer who, in the pursuit of his duties is attempting to apprehend a person

accused of a felony crime, strikes at the very heart of the justice system.”

{¶ 71} We reject appellant’s argument. The trial court never suggested that

the mitigating evidence in this case could not outweigh this aggravating factor. The

trial court’s statement regarding the severity of killing a police officer was not

improper. Courts are certainly entitled to consider the gravity of the aggravating

circumstances. See, e.g., State v. Keene (1998), 81 Ohio St.3d 646, 671, 693 N.E.2d

246, 266-267 (noting that the killing of a witness in order to avoid prosecution is

an act that strikes at the heart of the criminal justice system); State v. Coleman

(1999), 85 Ohio St.3d 129, 145, 707 N.E.2d 476, 491.

PROSECUTORIAL MISCONDUCT

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January Term, 2001

{¶ 72} In his eleventh proposition of law, appellant contends that

prosecutorial misconduct at several stages of his trial denied him due process of

law. First, appellant argues that the prosecution engaged in misconduct when,

during voir dire, it informed prospective jurors that they could determine what

evidence was mitigating. Because appellant failed to raise this objection during

trial, he now waives all but plain error. Joseph, 73 Ohio St.3d at 455, 653 N.E.2d

at 291.

{¶ 73} We find no error, plain or otherwise, in the prosecution’s statements

to prospective jurors regarding mitigation. The prosecution merely reminded

prospective jurors that it was their duty to determine what evidence does in fact

mitigate the appellant’s crime and what weight to give this evidence. This was not

improper. “Prosecutors can urge the merits of their cause and legitimately argue

that defense mitigation evidence is worthy of little or no weight.” Wilson, 74 Ohio

St.3d at 399, 659 N.E.2d at 309. The prosecution’s statements correctly

summarized the law on mitigation. “[T]he jury * * * may properly choose to assign

absolutely no weight to * * * evidence if it considers it to be non-mitigating.” State

v. Steffen (1987), 31 Ohio St.3d 111, 129, 31 OBR 273, 289, 509 N.E.2d 383, 399.

Even if the prosecution’s statements were improper, we can find no plain error here.

Statements made during voir dire cannot reasonably be thought to affect sentencing

verdicts. See Darden v. Wainwright (1986), 477 U.S. 168, 183-184, 106 S.Ct. 2464,

2472-2473, 91 L.Ed.2d 144, 158-159, fn. 15.

{¶ 74} Appellant also cites as prosecutorial misconduct the prosecution’s

remark, made in its opening statement of the penalty phase and essentially repeated

in closing, that “there can be no mitigating factors which outweigh the aggravating

circumstances of the murder of a police officer in order to escape apprehension for

another crime or the murder of a police officer while doing his duty.” Here again,

appellant has waived all but plain error.

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{¶ 75} We reject appellant’s contention that the prosecution’s statement

constituted misconduct. As noted above, prosecutors are permitted to urge the

merits of their cause and, in so doing, are permitted to argue that defense mitigation

evidence is entitled to no weight. Wilson, 74 Ohio St.3d at 399, 659 N.E.2d at 309.

It is difficult for prosecutors to argue vigorously for the death penalty without

making what might arguably be statements of personal opinion. A prosecutor may

offer his or her opinion if it is based on the evidence presented at trial. State v.

Stephens (1970), 24 Ohio St.2d 76, 83, 53 O.O.2d 182, 186, 263 N.E.2d 773, 777.

Finally, we note that any potential error here was cured by the trial court’s

instruction to the jury that statements and arguments made by the attorneys are not

evidence. State v. Palmer (1997), 80 Ohio St.3d 543, 562, 687 N.E.2d 685, 702.

{¶ 76} Last, appellant argues that the prosecution engaged in misconduct

when, during the cross-examination of a witness, it implied that appellant had been

involved in another homicide. During the cross-examination of a witness named

Charles See, the prosecution elicited information that an acquaintance of the

appellant, Emasio Hull, had been involved in an altercation with the appellant and

had, during this altercation, hit the appellant in the head with a hammer. The

prosecution then asked the witness whether he was aware of the fact that, after this

incident, Hull was murdered. Defense counsel objected. The trial court sustained

the objection and informed the jury to disregard the question because Hull’s murder

had no relevancy to the matter before it.

{¶ 77} In light of the trial court’s sustaining of defense counsel’s objection

and the trial court’s subsequent instruction to the jury, we find no prejudicial error

in the prosecution’s question. Juries are presumed to follow trial court instructions.

Raglin, 83 Ohio St.3d at 264, 699 N.E.2d at 492.

INEFFECTIVE ASSISTANCE OF COUNSEL

{¶ 78} In his thirteenth proposition of law, appellant argues that he received

ineffective assistance of counsel during the pretrial, trial, and penalty phases. To

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January Term, 2001

win a reversal on the basis of ineffective assistance of counsel, the defendant must

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. “To show that a defendant has been prejudiced

by counsel’s deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different.” Id., paragraph three of the syllabus.

Ineffective Assistance of Counsel at the Pretrial and Trial Phases

{¶ 79} Appellant raises several alleged instances of ineffective assistance

during the pretrial and trial phases. First, appellant contends that he received

ineffective assistance of counsel when, during voir dire, his counsel failed to move

that Juror McCollum be excused for cause on the basis of that juror’s alleged bias.

Above, we noted that juror McCollum indicated to the trial court that, if selected as

a juror, he would follow the law and would assume appellant’s innocence. We have

already held that the trial court did not err in declining to excuse this juror sua

sponte. Thus, defense counsel could quite reasonably have concluded that a motion

to dismiss Juror McCollum for cause would not have been successful. “Counsel

need not raise meritless issues or even all arguably meritorious issues.” Taylor, 78

Ohio St.3d at 31, 676 N.E.2d at 97. The record reveals that defense counsel instead

used one of its peremptory challenges to exclude Juror McCollum. These kinds of

tactical decisions fall “well within the range of professionally reasonable

judgments.” Strickland, 466 U.S. at 699, 104 S.Ct. at 2070, 80 L.Ed.2d at 701.

{¶ 80} As a second instance of ineffective assistance, appellant points to

defense counsel’s failure to object to the admission of evidence regarding Officer

Glover’s medical treatment and the efforts to save his life. We have already

thoroughly discussed this issue and have concluded that this evidence was relevant

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and admissible as evidence illustrating the nature and circumstances of the crime.

Again, counsel need not raise meritless issues or even all arguably meritorious

issues for that matter. Taylor, 78 Ohio St.3d at 31, 676 N.E.2d at 97. Accordingly,

defense counsel’s failure to object did not constitute deficient performance.

{¶ 81} Third, appellant challenges defense counsel’s failure to move for

merger of the second and third death penalty specifications until after the guilt

phase of the trial had concluded, at which time defense counsel moved for, and was

granted, merger. These death penalty specifications constituted duplicative

aggravating circumstances under R.C. 2929.04(A)(6) and did in fact have to be

merged. See Jenkins, 15 Ohio St.3d 164, 199-200, 15 OBR 311, 341-342, 473

N.E.2d 264, 296-297. However, we do not believe that defense counsel acted

unreasonably in waiting until the penalty phase to move for merger. Certainly, this

tactical decision caused no prejudice to the appellant.

{¶ 82} Finally, appellant argues that he received ineffective assistance when

defense counsel failed to move for dismissal of the R.C. 2929.04(A)(3) death

penalty specification. We have held that the prosecution proved each element of

this specification by proof beyond a reasonable doubt. Accordingly, there was no

basis for moving to dismiss this specification and, hence, no ineffective assistance

of counsel. Taylor, 78 Ohio St.3d at 31, 676 N.E.2d at 97 (counsel need not raise

meritless objections).

Ineffective Assistance of Counsel at the Penalty Phase

{¶ 83} Appellant raises four alleged instances of ineffective assistance at

the penalty phase of his trial. First, appellant challenges defense counsel’s failure

to object when the trial court instructed the jurors that they had to determine what

evidence was relevant. We have already examined this instruction and concluded

that the instruction could reasonably have been interpreted by jurors to mean that

they were to consider only evidence deemed relevant by the trial court. Certainly,

defense counsel could reasonably have attached the same meaning to the trial

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January Term, 2001

court’s statement and declined to object for this reason. In any event, we have

already determined that this instruction did not prejudice the outcome of the case.

{¶ 84} Second, appellant challenges defense counsel’s failure to object

when the prosecution informed jurors that no amount of mitigation could outweigh

the killing of a police officer. We have already held that these statements from the

prosecution were not improper. The statements did not warrant an objection.

{¶ 85} Third, appellant argues that defense counsel should have objected to

allegedly “irrelevant” exhibits, photos, and medical evidence relating to Officer’s

Glover’s wounds and treatment. We have concluded that much of this evidence was

relevant and admissible because it illustrated the nature and circumstances of the

crime. Moreover, given the serious nature of the aggravating circumstances, the

admission of some or all of this evidence could not have affected the outcome of

the trial.

{¶ 86} Finally, appellant argues that he was provided ineffective assistance

when defense counsel failed to emphasize to the jury specific facts from mitigation

exhibits submitted to the jury. Specifically, appellant challenges defense counsel’s

failure to point out that, just before appellant was born, a physician had referred to

appellant’s mother as noncommunicative and in need of guidance. Appellant also

challenges defense counsel’s failure to point out to the jury that appellant’s mother

had committed suicide by intentional drug overdose. The record indicates that

appellant’s defense counsel had presented an abundance of evidence regarding

appellant’s mother, including her inability to form an attachment with appellant and

the effect her suicide had upon him. The subtle tactical choices that appellant now

challenges were decisions that lay within the realm of professionally reasonable

judgment. We further find that defense counsel’s failure to highlight to the jury

specific items of mitigation contained in exhibits submitted to it could not have

affected the outcome of the trial, especially in light of the weight and gravity of the

aggravating circumstances.

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{¶ 87} We have reviewed each of appellant’s alleged instances of

ineffective assistance of counsel and conclude that appellant received

constitutionally adequate representation at each phase of his trial. Accordingly, we

reject appellant’s thirteenth proposition of law.

CONSTITUTIONALITY OF OHIO’S DEATH PENALTY LAW

{¶ 88} In his fifteenth and final proposition of law, appellant raises several

constitutional challenges to Ohio’s death penalty law, which we summarily reject.

Appellant’s arguments have been rejected in numerous previous decisions issued

by this court. See, e.g., State v. Hill (1996), 75 Ohio St.3d 195, 201, 661 N.E.2d

1068, 1076; State v. Coleman (1989), 45 Ohio St.3d 298, 308-309, 544 N.E.2d 622,

633-634.

INDEPENDENT SENTENCE EVALUATION

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

independently review the death sentence for appropriateness and proportionality.

We find beyond a reasonable doubt that the balance of aggravating circumstances

against mitigating factors in this case weighs in favor of a death sentence.

{¶ 90} Much of appellant’s mitigation evidence focused upon his

relationship with his mother. In mitigation, appellant presented testimony that he

was born to an eighteen-year-old mother who foisted the bulk of his care onto

others. Appellant’s primary caregiver was his foster grandmother, Theresa Lyons.

Appellant had no relationship with his father. Nor did appellant have any positive

male role models in his life. Appellant’s natural mother was a drug user. Her legal

and substance abuse problems caused her to drift in and out of her son’s life. When

appellant was only six years old, his mother was incarcerated for theft. When

appellant was thirteen, his mother died from a drug overdose, an apparent suicide.

The testimony of several witnesses suggests that the death of his mother was a

turning point in appellant’s life. Appellant became involved with gangs and began

to run afoul of the law. He was frequently truant from school until he was expelled.

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Testimonial evidence in the record suggests that appellant suffers from antisocial

personality and attachment disorders, which may have created in appellant an

inability to empathize and a tendency to violate the rights of others.

{¶ 91} Appellant’s mitigation evidence suggests that violence and death

have characterized much of appellant’s life. Both his grandmother and great-

grandmother, for example, died from gunshot wounds. Like his mother, a cousin,

who was a close friend to appellant, committed suicide. One of his own daughters

died young. An uncle is in prison serving time for murder. At the age of sixteen,

appellant was severely beaten and robbed by someone he had considered to be a

friend.

{¶ 92} Nothing in the nature and circumstances of the offense mitigates the

appellant’s crime. A mere week before he killed Officer Glover, appellant professed

to his cousin that he would kill any officer who attempted to arrest him. To this end,

appellant armed himself with a .38 caliber revolver and loaded it with hollow point

bullets, a particularly deadly form of ammunition. Appellant displayed chilling

mercilessness in his killing of Officer Glover, firing the fatal shots at point-blank

range. He then fled the scene, stopping only to kick the wounded and defenseless

officer. Appellant surrendered only when all available means of escape had been

exhausted.

{¶ 93} Upon review of the evidence in mitigation, it appears that appellant

had a chaotic and troubled childhood. We find that appellant’s background and

personality disorders are entitled to some weight in mitigation. See State v. Johnson

(2000), 88 Ohio St.3d 95, 123, 723 N.E.2d 1054, 1078. At the time he committed

this offense, appellant was twenty-one years old. Appellant’s relative youth is

entitled to some, but minimal, weight in mitigation. Id. Nothing in the nature and

circumstances of the crime is mitigating.

{¶ 94} We determine that the R.C. 2929.04(A)(3) and (A)(6) aggravating

circumstances outweigh the mitigating factors presented. In order to escape

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apprehension for his prior aggravated robbery offense, appellant knowingly killed

a police officer who was, at the time, engaged in his professional duties. After

considerable thought and review, we conclude that these aggravating circumstances

outweigh the mitigating evidence beyond a reasonable doubt.

{¶ 95} We have undertaken a comparison of the sentence imposed in this

case to those in which we have previously upheld the sentence of death and have

found that the appellant’s death sentence is neither excessive nor disproportionate

to the sentence imposed in similar cases. See, e.g., White, 82 Ohio St.3d 16, 693

N.E.2d 772; State v. Glenn (1986), 28 Ohio St.3d 451, 28 OBR 501, 504 N.E.2d

701.

{¶ 96} For the foregoing reasons, we affirm the judgment of the trial court

and uphold the sentence of death.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,

concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur separately.

__________________

COOK, J., concurring.

{¶ 97} Like the majority, I would affirm appellant’s convictions and death

sentence. I respectfully disagree, however, with the majority’s conclusion that the

aggravating circumstance in R.C. 2929.04(A)(3) requires the state to prove beyond

a reasonable doubt that the defendant committed the offense for which he sought to

avoid apprehension.

I

{¶ 98} The (A)(3) specification requires the state to prove, beyond a

reasonable doubt, that the capital offense was committed for a particular purpose—

“for the purpose of escaping detection, apprehension, trial, or punishment for

another offense committed by the offender.” (Emphasis added.) R.C.

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January Term, 2001

2929.04(A)(3). The (A)(3) specification enhances the potential penalty for

aggravated murder based on the offender’s mens rea—the offender’s purpose—not

the actus reus of a collateral offense. Cf. Apprendi v. New Jersey (2000), 530 U.S.

466, ___, 120 S.Ct. 2348, 2364, 147 L.Ed.2d 435, 457 (finding that, under a New

Jersey hate crime statute, “it is precisely a particular criminal mens rea that the * *

* enhancement statute seeks to target”).

{¶ 99} A comparison between the (A)(3) specification and our state’s

kidnapping statute illustrates the distinction between a core mens rea requirement

(an element) and a collateral offense. The kidnapping statute provides:

“No person * * * shall remove another from the place where the other

person is found * * * for any of the following purposes:

“***

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

will.” (Emphasis added.) R.C. 2905.01(A)(4).

{¶ 100} Like the (A)(3) specification, the kidnapping statute requires the

state to prove, beyond a reasonable doubt, that the offender acted with a specific

purpose. In State v. Powell (1990), 49 Ohio St.3d 255, 552 N.E.2d 191 (superseded

by constitutional amendment on other grounds as noted in State v. Smith [1997], 80

Ohio St.3d 89, 103, 684 N.E.2d 668, 684), the appellant claimed that his conviction

for kidnapping under this section was improper because there was insufficient

evidence to prove that sexual activity actually occurred. This court unanimously

rejected Powell’s contention, deciding that the kidnapping statute “requires only

that the restraint or removal occur for the purpose of non-consensual sexual

activity—not that sexual activity actually take place.” (Emphasis added.) Id., 49

Ohio St.3d at 262, 552 N.E.2d at 199. The same logic should apply to this court’s

analysis of the (A)(3) specification.

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{¶ 101} The (A)(3) specification has appeared in over forty cases decided

by this court since 1976.4 Like the majority, Jones cites none of them in his brief

as support for his contention that commission of the collateral offense must be

proved beyond a reasonable doubt. Both the majority and Jones simply cite the

general rules from Winship and Jackson that the state has the burden to prove all

the elements of any charge beyond a reasonable doubt. See In re Winship (1970),

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Jackson v. Virginia (1979), 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Because I do not agree with the majority that

the modifying phrase “committed by the offender” constitutes an element of the

(A)(3) specification, I do not find the constitutional rules of Winship and Jackson

offended by Jones’s conviction of the specification absent proof that he committed

the underlying offense.

{¶ 102} In the present case, the state introduced evidence that Jones had

outstanding felony warrants. The state also showed that a week before the killing,

Jones told his cousin that he was “facing a lot of time for robbing Isaac Coleman,”

and that he “was going to shoot at the police if they ever tried to arrest him.” This

is exactly what occurred. When Officer Glover told Jones, “[Y]ou know why I’m

here, * * * I’m just doing my job,” Jones fled, eventually shooting and then

viciously kicking Officer Glover. The state proved beyond a reasonable doubt that

Jones fled and killed Officer Glover to escape apprehension for another offense. It

was unnecessary for the state to prove beyond a reasonable doubt that Jones actually

committed the other offense, and it is therefore unnecessary for this court to decide,

as the majority does, that the state met this burden of proof by introducing the single

“admission” Jones made to his cousin.5 As one annotation has put it, “[p]roof that

4. See, e.g., State v. Filiaggi (1999), 86 Ohio St.3d 230, 714 N.E.2d 867; State v. Chinn (1999), 85

Ohio St.3d 548, 709 N.E.2d 1166; State v. Lawson (1992), 64 Ohio St.3d 336, 595 N.E.2d 902; State

v. Hancock (1976), 48 Ohio St.2d 147, 2 O.O.3d 333, 358 N.E.2d 273.

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January Term, 2001

a law enforcement officer was killed in the course of an investigation or arrest has

been uniformly held sufficient to establish that the murder was committed for the

purpose of avoiding or preventing a lawful arrest.” Annotation (1988), 64

A.L.R.4th 755, 763.

II

{¶ 103} I would also resolve Jones’s tenth proposition of law somewhat

differently from the majority. In his tenth proposition, Jones contends that the trial

court erred when it failed to merge the R.C. 2929.04(A)(3) and (A)(6) death penalty

specifications. Death specifications are duplicative and should be merged when

they arise from the same act or indivisible course of conduct. State v. Jenkins

(1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph five of the

syllabus. Merger is not required when the specifications are not duplicative or arise

from divisible courses of conduct. See State v. Robb (2000), 88 Ohio St.3d 59, 85,

723 N.E.2d 1019, 1047 (declining to merge [A][4], [A][5], and [A][7]

specifications). A trial court’s failure to merge duplicative aggravating

circumstances does not always result in reversible error. State v. Garner (1995),

5. The majority decides that the state proved beyond a reasonable doubt that Jones actually

committed the prior offense of aggravated robbery. The majority states that Jones’s “admission” to

his cousin that he was “facing a lot of time for robbing Isaac Coleman” was all the evidence that the

state needed to introduce in order to prove beyond a reasonable doubt that Jones actually committed

the aggravated robbery. Under the majority’s analysis, if the state charges someone with aggravated

robbery, the state may discharge its burden of proof in the case solely by introducing the testimony

of a witness (not necessarily an eyewitness), who merely testifies that the accused said that he was

“facing a lot of time” for robbery—an offense that differs significantly from aggravated robbery.

Compare R.C. 2911.01 and R.C. 2911.02. Though I deem it unnecessary to resolve this issue in the

first place, see supra, I feel compelled to disagree with the majority’s conclusion that Jones’s

statement to his cousin sufficed, in and of itself, to prove beyond a reasonable doubt that Jones

committed aggravated robbery. In this state, to convict someone of aggravated robbery, the state

must prove, inter alia, either (1) that the offender had a deadly weapon or dangerous ordnance on

or about his person, R.C. 2911.01(A)(1) and (2), or (2) that the offender inflicted or attempted to

inflict serious physical harm. R.C. 2911.01(A)(3). Jones’s “admission” to his cousin did not contain

any information tending to prove these elements of aggravated robbery. Accordingly, even if I

agreed with the majority’s threshold determination that the defendant’s commission of the prior

offense constitutes an essential element of the (A)(3) specification, which I do not, I could not join

its analysis of the sufficiency of the evidence.

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SUPREME COURT OF OHIO

74 Ohio St.3d 49, 53-55, 656 N.E.2d 623, 630-631, citing Jenkins, at paragraph five

of the syllabus. Rather, the reviewing court must determine “whether the jury’s

penalty-phase consideration of those duplicative aggravating circumstances

affected its verdict, and [must] independently determine whether the merged

aggravating circumstances outweigh the mitigating factors beyond a reasonable

doubt.” Id. at 53, 656 N.E.2d at 630.

{¶ 104} Here, Jones was convicted of three capital specifications—one

(A)(3) specification and two (A)(6) specifications. The trial court did merge the

two (A)(6) specifications, and thus presented one (A)(3) specification and one

(A)(6) specification to the jury in the penalty phase. The majority decides that

merger of the (A)(3) and (A)(6) specifications was not required, but I find it

unnecessary to resolve this issue here. Assuming, arguendo, that specifications

(A)(3) and (A)(6) arose from an indivisible course of conduct, and that the trial

court should have merged them, I would nevertheless conclude that the failure to

do so “did not influence the jury to recommend death [where] it would otherwise

have recommended life.” Garner, 74 Ohio St.3d at 54, 656 N.E.2d at 631. As in

Garner, merger of the specifications “would not have significantly changed the

nature of the evidence the jury was statutorily required to consider in making its

recommendation as to a possible sentence of death.” Id. Accordingly, I would

overrule appellant’s tenth proposition of law without deciding the merger question.

III

{¶ 105} Assessing appellant’s thirteenth proposition of law, the majority

concludes that because the state proved each element of the (A)(3) specification

beyond a reasonable doubt, “there was no basis for moving to dismiss this

specification.” I agree that Jones’s claim of ineffective assistance of counsel must

fail, but not because I share the majority’s view that the state proved each element

of the (A)(3) specification beyond a reasonable doubt. See fn. 5, supra. Because

the trial court was not required to dismiss the (A)(3) specification, counsel’s failure

36

January Term, 2001

to request dismissal cannot be the basis for a claim of ineffective assistance of

counsel.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing

concurring opinion.

__________________

APPENDIX

{¶ 106} “Proposition of Law No. I: A capital defendant’s right to a reliable

death sentence under the Eighth Amendment as well as his right to a fair and

impartial jury under the Due Process and Equal Protection Clauses of the

Fourteenth Amendment are violated when the defendant is prohibited, or unduly

restricted from asking questions during voir dire about the prospective jurors’

ability to consider mitigating factors. U.S. Const. Amends. VIII and XIV.

{¶ 107} “Proposition of Law No. II: The death sentence must be vacated

where mitigating factors are not outweighed by the aggravating circumstances.

{¶ 108} “Proposition of Law No. III: Retrial is required where errors that

occurred during voir dire denied a capital appellant a fair and impartial jury. U.S.

Const. Amends. VI, VIII and XIV.

{¶ 109} “Proposition of Law No. IV: Denial of a change of venue based

upon racial imbalance of the jury deprived the appellant of a fair trial. U.S. Const.

Amends. VI and XIV.

{¶ 110} “Proposition of Law No. V: When a trial court denies a capital

defendant his counsel of choice, the trial court deprives that defendant of his rights

to counsel and to due process as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and §§ 10 and 16, Article I of the

Ohio Constitution.

{¶ 111} “Proposition of Law No. VI: The admission of irrelevant evidence

about the extraordinary efforts made to save the victim’s life denied appellant due

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process and constituted plain error at both phases of this capital trial. U.S. Const.

Amends. VIII and XIV.

{¶ 112} “Proposition of Law No. VII: Where multiple evidentiary errors in

the trial phase prejudice the defendant, the conviction must be reversed. U.S. Const.

Amend. XIV.

{¶ 113} “Proposition of Law No. VIII: The state must present evidence of

a deliberate plan to kill in order to sustain a conviction for a killing with prior

calculation and design under Ohio Rev.Code Ann. § 2903.01(A). The state must

also present evidence on all essential elements of the charged specifications. U.S.

Const. Amends. VI, VIII and XIV.

{¶ 114} “Proposition of Law No. IX: A defendant’s conviction must be

reversed when multiple errors in the trial phase instructions denied him a fair trial

and due process of law. U.S. Const. Amend. XIV.

{¶ 115} “Proposition of Law No. X: Where it is alleged that a defendant

killed a police officer to prevent the defendant’s arrest for another offense, the §

2929.04(A)(3) and (A)(6) aggravating circumstances are duplicative and must be

merged because they arise from the same act or indivisible course of conduct. U.S.

Const. Amends. VIII and XIV.

{¶ 116} “Proposition of Law No. XI: Misconduct by the prosecutor at

Odraye Jones’s capital trial denied him due process of law and undermines

confidence in the trial and the sentencing verdict. U.S. Const. [Amends.] VIII and

XIV.

{¶ 117} “Proposition of Law No. XII: Where penalty phase instructions

allow the jury to decide what evidence is admissible concerning the aggravating

circumstances and where the instructions do not conform to Ohio and federal law,

reversal is required. U.S. Const. Amend[s]. VIII and XIV.

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January Term, 2001

{¶ 118} “Proposition of Law No. XIII: Counsel’s performance will be

deemed ineffective if it falls below an objective standard of reasonable

representation and prejudice arises therefrom. U.S. Const. Amends. VI and XIV.

{¶ 119} “Proposition of Law No. XIV: Resentencing is required where the

trial court fails to accord weight to (B)(7) mitigating evidence because it does not

qualify as (B)(3) and the court weighs the (A)(6) as a super aggravating

circumstance. U.S. Const. Amends. VIII and XIV.

{¶ 120} “Proposition of Law No. XV: 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 Odraye Jones.”

__________________

Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Ariana E.

Tarighati, Chief Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, State Public Defender, and Stephen A. Ferrell, Assistant

Public Defender; and Robert A. Dixon, for appellant.

__________________

39