State v. Yarbrough

[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 227.]

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

[Cite as State v. Yarbrough, 2002-Ohio-2126.]

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

(No. 1999-0958—Submitted November 27, 2001—Decided May 15, 2002.)

APPEAL from the Court of Appeals for Shelby County, No. 17-97-03.

__________________

ALICE ROBIE RESNICK, J.

{¶1} Appellant, Kevin Yarbrough, was convicted of the aggravated murder

for hire of Wilma Arnett, an informant for the Shelby County Sheriff’s Department

and state’s witness in the prosecution of Calvin Davis and his drug-dealing ring.

The trial court sentenced appellant to death. We affirm.

{¶2} At the time of Wilma Arnett’s murder, Calvin Davis was the central

figure of a Shelby County narcotics ring. He had formerly headed a door-to-door

“gypsy” painting crew in Georgia; appellant had worked on his painting crew

during 1991 or 1992.

{¶3} Wilma Arnett was the sister of Calvin Davis’s wife, Jewel. Arnett

lived in Sidney, the Shelby County seat. For a number of months, Arnett had been

a police informant in local drug cases. From September 1993 to January 1994,

Arnett made controlled drug purchases under the supervision of detectives while

wearing a hidden recorder and transmitter.

{¶4} In February 1994, a grand jury indicted Calvin Davis and fourteen

others for aggravated drug trafficking. Calvin Davis’s codefendants included

Tyrone McGhee and Jermaine Jelks, two members of Calvin Davis’s drug ring.

After Calvin Davis received discovery from the state, he told his wife that Arnett

“had to go.”

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{¶5} Appellant’s girlfriend, Elizabeth Johnson, had a conversation with

Calvin Davis in late 1993 or early 1994. An enraged Calvin Davis told her that

Arnett had “set him up” and that he would “go to prison for 15 years” because of

Arnett’s betrayal. Arnett had left a message on Calvin Davis’s answering machine

threatening to inform the police about his drug dealing unless Calvin Davis paid

her off, and Calvin Davis played the message for Johnson. Calvin Davis told

Johnson that “before he gave [Arnett] any more fuckin’ money, he’d have her killed

or kill her himself.”

{¶6} In May 1994, Calvin Davis summoned appellant to Shelby County.

On May 2, Calvin Davis paid for a bus ticket in the name of Elizabeth Johnson to

take appellant from Augusta, Georgia, to Sidney, Ohio. Davis arranged for Johnson

to pick it up at the Augusta bus station. Johnson picked up the ticket, gave it to

appellant, and put him on the bus. Although the ticket entitled appellant to ride all

the way to Sidney, he got off the bus in Cincinnati. Calvin Davis, along with

Davis’s wife and a friend, picked him up there and drove him to Sidney. Calvin

Davis later introduced appellant to Tyrone McGhee as “my boy.” While in Sidney,

appellant supported himself by dealing drugs in association with Calvin Davis.

{¶7} State’s Exhibit 26, a photograph of appellant, shows a large cyst below

and to the right of appellant’s right eye. (Because of his distinctive appearance,

appellant was nicknamed “Knothead.”) Appellant no longer had the cyst by the

time that he was tried, but his girlfriend testified that Exhibit 26 accurately depicted

appellant’s appearance—including the cyst—in May 1994.

{¶8} In May 1994, Calvin Davis, McGhee, and Jelks were discussing their

cases with appellant in Calvin Davis’s van. Calvin Davis suggested that he and

McGhee “should * * * pay Kevin Yarbrough to do a hit on Wilma * * * so our drug

cases would get dropped.” Calvin Davis and McGhee were each to pay appellant

$10,000. They drove to McGhee’s house. McGhee got out of the van and came

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back with a duffel bag containing $10,000 in cash. He gave the bag to appellant,

who counted the money in the van.

{¶9} Annette Simmons was Calvin Davis’s neighbor; originally from

Georgia, she had known Calvin Davis since he was sixteen. One evening in May,

while appellant was staying with the Davises, Simmons was visiting Jewel Davis.

In Simmons’s presence, appellant asked Calvin Davis, “[D]id you get the picture?”

Calvin Davis asked his wife, “[D]o you have the picture[?]” A photograph of Jewel

Davis and Wilma Arnett was removed from an album and torn or cut in half. Calvin

Davis showed appellant the half depicting Wilma; then Calvin Davis pocketed it.

{¶10} On May 9, 1994, the day before Wilma Arnett’s body was found,

Jewel Davis saw her husband hand his .38-caliber handgun to appellant. That same

day, Vicki Shawler saw “a tall black male” displaying a handgun during a party.

The man was in the company of Calvin Davis, and he had a “mole” or “mark” on

his face, located where appellant’s cyst had been.

{¶11} At the United gas station in Sidney, Tanya Counts was working the

last shift on May 9 as a cashier. During Counts’s shift, which ended at 10 or 11:00

p.m. that night, Wilma Arnett came to the station three times. The first two times,

she was by herself.

{¶12} Near the end of her shift, Counts saw Arnett for the third time. This

time, Arnett was accompanied by a tall black man with a “bump” on his face.

Arnett drove in and pumped some gasoline, and her companion came inside and

paid for it. He asked Counts if the station sold beer. Counts said no, and the man

left.

{¶13} Counts could not positively identify appellant as the man with Arnett.

However, Counts testified that the “bump” on the man’s face was in the same

location as appellant’s cyst shown in State’s Exhibit 26.

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{¶14} Just before midnight on May 9, a motorist saw Arnett’s car parked at

the edge of a field on Dingman-Slagle Road, outside Sidney. He saw at least one

person in the car.

{¶15} Around 12:30 or 1:00 a.m. on May 10, appellant came into Walleyes

Bar in Sidney to speak to Calvin Davis. McGhee, who was watching a pool game

and standing near Calvin Davis, heard the conversation. Appellant approached

Calvin Davis and reported, “The snitch is no more.” He commented that “the bitch

was hard to die.” He then told Calvin Davis that he “beat her down,” that he “[s]hot

her once and * * * had to shoot her again because she wasn’t dead the first time,”

and that he “threw the gun up there in the woods” near the residence of James

Bussey, Calvin Davis’s nephew. Appellant also said something about “the window

being broke out.”

{¶16} On the morning of May 10, Arnett’s husband looked for her. He did

not find her, but he did find her car parked in town. The windshield had been

broken, scattering glass fragments on the seat and floor.

{¶17} That same morning, another motorist reported a body lying in a field

on Dingman-Slagle Road, where Arnett’s car had been seen at midnight. The body

was later identified as Wilma Arnett. Fragments of tinted automotive window glass

were found near the body.

{¶18} Arnett was shot three times in the head and three times in the body.

A .38-caliber slug was recovered from Arnett’s body. Semen was found on a

vaginal swab taken during the autopsy. DNA analysis showed that appellant was

the source of the semen.

{¶19} On the morning of May 10, Calvin Davis told his wife that he wanted

appellant out of his house. Calvin Davis then went to the nearby apartment of Paul

Smith, another member of his drug ring, and ordered him to “get [appellant] out of

there.” Calvin Davis told Smith that appellant had stolen money and crack from

him.

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{¶20} Appellant got into Smith’s car with two bags, one of which was a

duffel bag. Smith headed for Sidney, but appellant told him to drive to Lima

instead. When they arrived, the bus station was closed, so Smith checked appellant

into a motel under Smith’s name. Appellant told Smith: “[T]ell Calvin where I am.

Don’t tell nobody else.” This surprised Smith, since Calvin Davis “was supposed

to be mad at” appellant.

{¶21} Three or four days after the murder, Calvin Davis told his wife that

he had paid appellant $5,000 to kill Arnett and he “wasn’t gonna pay any more.”

{¶22} As a result of Arnett’s murder, the aggravated drug trafficking cases

in which she was to testify were dismissed.

{¶23} In September 1994, Detective Joanie Henry of the Shelby County

Sheriff’s Department interviewed appellant in South Carolina. At first, appellant

told Henry that “he had heard of the murder but did not know Wilma.” After seeing

Wilma’s picture, he admitted that he had seen her at Walleyes Bar “but denied that

he’d ever had any contact with her.” Later, appellant admitted to Henry that he and

Arnett “had had contact with each other outside Walleyes Bar within a few days

[of] when he first arrived” and that he had sexual relations with Arnett. He denied

being with her on the night of May 9.

{¶24} In 1995, appellant was being held in the Shelby County Jail on other

charges. One day in late October or early November, appellant returned from a

court appearance “excited” and “upset.” He told Vance Short, a fellow inmate, that

he was “afraid that he was the last person that [Arnett] was seen with.” He also

said, “[W]ell, I made sure that the bitch got what she deserved.”

{¶25} In December 1995, a local resident found a .38-caliber revolver in a

wooded area not far from the apartment complex where Calvin Davis’s nephew

Bussey lived. Witnesses identified that gun as belonging to Calvin Davis. It was

impossible to determine conclusively that the .38-caliber slug removed from

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Arnett’s body was fired from that gun. However, the gun could not be excluded as

the murder weapon.

{¶26} Appellant was ultimately indicted for aggravated murder with prior

calculation and design in violation of R.C. 2903.01(A) with two death

specifications: murder for hire pursuant to R.C. 2929.04(A)(2) and murder of a

witness pursuant to R.C. 2929.04(A)(8). The indictment also charged conspiracy

to commit aggravated murder, R.C. 2923.01(A)(2).

{¶27} Appellant was convicted of all charges and specifications. After a

penalty hearing, the trial judge followed the jury’s recommendation and sentenced

him to death. The court of appeals affirmed appellant’s aggravated murder

conviction and death sentence. On the authority of R.C. 2923.01(G), the court of

appeals reversed appellant’s conspiracy conviction.

{¶28} Appellant appeals as a matter of right, pursuant to R.C. 2929.05(A)

and former Section 2(B)(2)(a)(ii), Article IV, Ohio Constitution, from the judgment

affirming his aggravated murder conviction and death sentence.1 He raises eighteen

propositions of law. In our judgment, none of these propositions of law justifies

reversal of the conviction or sentence. We have also independently reviewed the

death sentence imposed in this case for appropriateness and proportionality. For

the reasons that follow, we affirm appellant’s conviction and death sentence.

I. Admission of Calvin Davis’s Out-of-Court Statements

{¶29} Calvin Davis died on June 1, 1996. Thus, he was unavailable to

testify at appellant’s trial. However, the state introduced into evidence three out-

of-court statements that Calvin Davis had made between November 1993 and May

1. In 1994, Ohio voters approved Issue I, providing for direct appeal from common pleas court to

the Supreme Court of Ohio “as a matter of right in cases in which the death penalty has been

imposed.” See Section 2(B)(2)(c), Article IV of the Ohio Constitution. The amendment applies

only to offenses committed on or after January 1, 1995. Sub.H. Joint Resolution No. 15, Schedule,

145 Ohio Laws, Part IV, 7811, 7814. See State v. Smith (1997), 80 Ohio St.3d 89, 95, 684 N.E.2d

668. Since the death penalty in this case was imposed for events that occurred prior to January 1,

1995, the 1994 amendment to Section 2(B)(2) of the Ohio Constitution does not apply.

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1994. In his first proposition of law, appellant contends that admission of these

three statements violated the hearsay rule of the Ohio Rules of Evidence and the

Confrontation Clause of the Sixth Amendment to the United States Constitution.

A. Statement to Elizabeth Johnson

{¶30} Johnson testified that she and Calvin Davis had had a conversation in

November or December 1993 or early in 1994. An “[e]nraged” Calvin Davis was

complaining that Arnett had “set him up” and that “he’d go to prison for 15 years.”

Johnson then testified, “He [Calvin Davis] said before he gave her any more fuckin’

money, he’d have her killed or kill her himself.”

{¶31} Over defense objection, the trial court admitted this testimony,

holding that it qualified under both the “state of mind” and the “statement against

interest” exceptions to the hearsay rule, Evid.R. 803(3) and 804(B)(3), respectively.

Appellant contends that Calvin Davis’s statement, “before he gave her any more *

* * money, he’d have her killed or kill her himself,” should have been excluded.

{¶32} Evid.R. 803(3) creates a hearsay rule exception for “[a] statement of

the declarant’s then existing state of mind, emotion, sensation, or physical condition

(such as intent * * *), but not including a statement of memory or belief to prove

the fact remembered or believed * * *.” (Emphasis added.)

{¶33} Calvin Davis’s statement was a statement of his then-existing intent.

“ ‘It has long been settled that the state-of-mind exception may be used as the basis

for introducing statements showing the forward-looking intent of the declarant for

the purpose of proving that he thereafter acted in accordance with that intent.’ ” 4

Louisell & Mueller, Federal Evidence (1980) 540, Section 442, quoted in State v.

Steffen (1987), 31 Ohio St.3d 111, 120, 31 OBR 273, 509 N.E.2d 383. See,

generally, Mut. Life Ins. Co. of New York v. Hillmon (1892), 145 U.S. 285, 295, 12

S.Ct. 909, 36 L.Ed. 706.

{¶34} Although appellant calls this a hearsay issue, he does not seriously

contend that Calvin Davis’s statement fails to qualify for the state-of-mind

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exception of Evid.R. 803(3). Rather, he argues that the statement is irrelevant to

proving Calvin Davis’s state of mind because it was too remote in time from the

murder.

{¶35} However, it is the trial court’s province to determine whether, under

the circumstances, testimony is “essentially misleading or too remote” to be

deemed relevant. Whiteman v. State (1928), 119 Ohio St. 285, 298, 164 N.E. 51.

Trial courts have “broad discretion” in determining relevance, and we are

correspondingly “slow to interfere” with a trial court’s exercise of that discretion.

State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 224 N.E.2d 126.

{¶36} Six months at most elapsed between Calvin Davis’s statement—made

no earlier than November 1993—and his hiring appellant to kill Arnett in May

1994. Indeed, the trial court could have found that Calvin Davis made this

statement to Johnson later than November 1993. Jewel Davis recalled that Arnett

had left the phone message after Calvin Davis was indicted, which was in February

1994. Since Arnett was still making drug buys in January 1994, Calvin Davis

presumably did not know in November 1993 that Arnett was working with police.

{¶37} In any case, Calvin Davis’s anger at Arnett was likely still fresh in

May 1994, with his trial pending. (According to Paul Smith, Calvin Davis told

Jewel Davis in January or February 1994 that Arnett “had to go.”) Hence, the trial

court could reasonably find that Calvin Davis’s statement to Johnson was not too

remote to be relevant, and the court did not abuse its discretion in admitting that

statement.

{¶38} Appellant further contends that the statement is irrelevant because it

is not “probative of appellant’s involvement.” But the state never claimed that the

statement directly proved appellant’s involvement, and that is not the test of its

probative value. Evid.R. 401 defines “relevant evidence” as “evidence having any

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

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

the evidence.” (Emphasis added.)

{¶39} To obtain these convictions and the sentence of death, the state had

to prove not only that appellant killed Arnett, but that he killed with prior

calculation and design, R.C. 2903.01(A), and that he did so “for hire,” R.C.

2929.04(A)(2). Calvin Davis’s statement that he intended to “have [Arnett] killed

or kill her” makes it “more probable” that appellant was hired to kill Arnett “than

it would be without the [statement].”

{¶40} Finally, we reject appellant’s argument that the court should have

excluded the statement under Evid.R. 403(A). That rule requires a trial court to

exclude relevant evidence whose “probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

But the exclusion of relevant evidence under Evid.R. 403(A) is even more of a

judgment call than determining whether the evidence has logical relevance in the

first place. Thus, “the trial court is vested with broad discretion and an appellate

court should not interfere absent a clear abuse of that discretion.” State v. Allen

(1995), 73 Ohio St.3d 626, 633, 653 N.E.2d 675. There was no such “clear abuse”

here. The statement at issue created no danger of unfair prejudice or jury confusion.

B. Statement to Jewel Davis

{¶41} On direct examination, Jewel Davis testified, “Calvin stated that he

paid $5,000 to Kevin to have Wilma killed. * * * He said he wasn’t gonna pay any

more.” This statement, though hearsay, was admitted under the Evid.R. 804(B)(3)

exception for statements against interest. Appellant contends first that the

statement was not an admission against interest and, second, that it was not

corroborated by the circumstances of its making, so that its admission into evidence

also violated the Confrontation Clause of the Sixth Amendment.

{¶42} Evid.R. 804(B)(3) creates a hearsay rule exception for statements

against interest. The rule allows admission of “[a] statement that * * * at the time

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of its making * * * so far tended to subject the declarant to * * * criminal liability

* * * that a reasonable person in the declarant’s position would not have made the

statement unless the declarant believed it to be true. A statement tending to expose

the declarant to criminal liability, whether offered to exculpate or inculpate the

accused, is not admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement.”

{¶43} Appellant argues that Calvin Davis’s statement was not against his

penal interest—i.e., it did not tend “to subject [Calvin Davis] to * * * criminal

liability”—because it was privileged. Under R.C. 2945.42, with certain exceptions

not relevant here, a “[h]usband or wife shall not testify concerning a communication

made by one to the other * * * during coverture * * *.” Thus, Jewel Davis could

not have repeated Calvin Davis’s admission in a prosecution of Calvin Davis.

Although appellant lacks standing to assert Calvin Davis’s marital privilege, see

Diehl v. Wilmot Castle Co. (1971), 26 Ohio St.2d 249, 55 O.O.2d 484, 271 N.E.2d

261, appellant contends that, because Calvin Davis could have raised it, his

statements to his wife were not against his penal interest.

{¶44} However, a statement may be against a declarant’s penal interest even

though it cannot be used in evidence against the declarant. The marital privilege

bars only testimony; it “does not ensure that the statement will not be repeated to

the police or anyone else * * *.” State v. Kiewert (1992), 135 N.H. 338, 344, 605

A.2d 1031. By telling his wife that he had paid for Arnett’s murder, Calvin Davis

placed himself at serious risk of arrest and prosecution. His statement was therefore

against his penal interest.

{¶45} Appellant also argues that Calvin Davis’s statement was not made

under circumstances suggesting that it is trustworthy. Under Evid.R. 804(B)(3),

“[a] statement tending to expose the declarant to criminal liability * * * is not

admissible unless corroborating circumstances clearly indicate the trustworthiness

of the statement.”

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{¶46} The existence or nonexistence of corroborating circumstances also

invokes Confrontation Clause concerns. The hearsay exception for statements

against interest is not a firmly rooted exception, at least when the statement is

“offered by the prosecution to establish the guilt of an alleged accomplice of the

declarant.” State v. Madrigal (2000), 87 Ohio St.3d 378, 385, 721 N.E.2d 52. See,

also, Lilly v. Virginia (1999), 527 U.S. 116, 130-134, 119 S.Ct. 1887, 144 L.Ed.2d

117 (plurality opinion).

{¶47} For this reason, the Confrontation Clause of the Sixth Amendment

permits such a statement to be admitted only if it exhibits adequate indicia of

reliability. Madrigal, 87 Ohio St.3d at 386, 721 N.E.2d 52. See, generally, Ohio

v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597. Moreover,

“the fact that other evidence corroborates the statement is irrelevant. * * * The

relevant circumstances include ‘only those that surround the making of the

statement and that render the declarant particularly worthy of belief.’ (Emphasis

added.)” Madrigal, 87 Ohio St.3d at 387, 721 N.E.2d 52, quoting Idaho v. Wright

(1990), 497 U.S. 805, 819, 110 S.Ct. 3139, 111 L.Ed.2d 638.

{¶48} Relying heavily on the plurality opinion in Lilly v. Virginia, supra,

appellant contends that Calvin Davis’s statement to Jewel Davis was not

surrounded by “circumstances * * * that render the declarant particularly worthy of

belief.” Therefore, appellant contends, the statement’s admission violated his

rights under the Confrontation Clause.

{¶49} We disagree. Calvin Davis’s statement to his wife is distinguishable

from the statement at issue in Lilly on every relevant point. This is not a case where

“the government [was] involved in the statements’ production.” Lilly, 527 U.S. at

137, 119 S.Ct. 1887, 144 L.Ed.2d 117. Calvin Davis was not in custody when he

made the statement, nor was he speaking “under the supervision of governmental

authorities.” Id. at 139, 119 S.Ct. 1887, 144 L.Ed.2d 117. Thus, he had no “natural

motive to attempt to exculpate himself as much as possible” by implicating

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appellant. Id. Nor was he “responding to * * * leading questions.” Id. See State

v. Issa (2001), 93 Ohio St.3d 49, 61, 752 N.E.2d 904.

{¶50} Nor can we accept appellant’s contention that Calvin Davis was

shifting blame from himself. Like the declarant in Issa, he “had nothing to gain

from inculpating appellant in the crime.” Issa, 93 Ohio St.3d at 61, 752 N.E.2d

904. “At best, [declarant’s] statement would ‘shift’ enough blame so that he and

[defendant] would share responsibility for the crime. [Declarant] would be exposed

to an equally severe penalty on the basis of his confession alone.” People v. Petros

(1993), 198 Mich.App. 401, 416, 499 N.W.2d 784.

{¶51} “Lilly’s main concern was with statements in which, as is common in

police-station confessions, the declarant admits only what the authorities are

already capable of proving against him and seeks to shift the principal blame to

another (against whom the prosecutor then offers the statement at trial).” United

States v. Shea (C.A.1, 2000), 211 F.3d 658, 669. The statement in Lilly whose

admission violated the Confrontation Clause fit that description. Calvin Davis’s

spontaneous statement to his wife, in his own home, with no state involvement

whatsoever, does not. “Lilly does not change the fact that statements to close family

members have ‘particularized guarantees of trustworthiness.’ ” United States v.

Westmoreland (C.A.7, 2001), 240 F.3d 618, 628, quoting United States v. Tocco

(C.A.6, 2000), 200 F.3d 401, 416. See, also, Latine v. Mann (C.A.2, 1994), 25 F.3d

1162, 1166-1167 (distinguishing between custodial statements to police and

statements to a perceived ally).

{¶52} Appellant goes so far as to contend that Calvin Davis’s statement is

unreliable because he was speaking to his wife; he argues that Calvin Davis “had

every reason to believe that his conversations with his wife would never be

disclosed and would never subject him to criminal liability.”

{¶53} Although a few courts have found similar reasoning persuasive in

part, see United States v. Hoyos (C.A.9, 1978), 573 F.2d 1111, 1115; United States

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v. Battiste (N.D.Ill.1993), 834 F.Supp. 995, 1006, and fn. 11; State v. Myers (1981),

229 Kan. 168, 175, 625 P.2d 1111, others have not. See Linton v. State (Alaska

App.1994), 880 P.2d 123, 127-128; State v. Kiewert (1992), 135 N.H. 338, 605

A.2d 1031. We believe the latter courts take the better position. “Even to people

we trust completely, we are not likely to admit serious fault of which we are

innocent * * *.” 4 Mueller & Kirkpatrick, Federal Evidence (2d Ed.1994) 822-823,

Section 496. Thus, where a declarant makes a statement to someone with whom

he has a close personal relationship, such as a spouse, child, or friend, courts usually

hold that the relationship is a corroborating circumstance supporting the

statement’s trustworthiness. See, e.g., Green v. Georgia (1979), 442 U.S. 95, 97,

99 S.Ct. 2150, 60 L.Ed.2d 738; United States v. Tocco, supra; United States v.

Boone (C.A.9, 2000), 229 F.3d 1231, 1234; Westmoreland, 240 F.3d at 627-628.

{¶54} To sum up: Calvin Davis was speaking to his wife, not to police; he

was at home, not in custody; his statement was spontaneous, and he had nothing to

gain by incriminating appellant. These are corroborating circumstances that render

his statement worthy of belief. The admission of that statement did not, therefore,

violate either the Confrontation Clause or Evid.R. 804(B)(3).

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C. Statement to Jermaine Jelks

{¶55} Jermaine Jelks testified to a conversation that took place in Calvin

Davis’s van before the murder. Jelks testified that Calvin Davis “was speakin’

based upon our drug cases and suggested they should * * * pay Kevin Yarbrough

to do a hit on Wilma. * * * It was $10,000 apiece.” Over objection, this testimony

was admitted under the rule for statements by coconspirators, Evid.R. 801(D)(2)(e),

and under the hearsay exception for statements against interest when the declarant

is unavailable, Evid.R. 804(B)(3).

{¶56} The court of appeals upheld the admission of this statement to Jelks

on essentially the same grounds that it upheld the admission of Calvin Davis’s

statement to Jewel Davis that Calvin Davis had paid appellant to have Wilma Arnett

killed. We agree with the court of appeals that this statement also was admissible

under Evid.R. 804(B)(3) as a statement against interest. We also agree that the

corroborating circumstances render the statement sufficiently trustworthy that the

Confrontation Clause was not violated.

{¶57} The trial court properly admitted each of the statements in question.

Appellant’s first proposition of law is therefore overruled.

II. Exclusion of Hearsay—Due Process Issue

{¶58} In his second proposition of law, appellant contends that certain out-

of-court statements by Calvin Davis should have been admitted as statements

against interest.

{¶59} Appellant proffered the testimony of Kenneth Henderson, who had

been in jail with Calvin Davis in November or December 1994. According to

Henderson, Calvin Davis told him “that Tyrone McGhee and Jermaine Jelks and

Darren Taborn killed Wilma. * * * He said that * * * they came to his house early

that morning and cleaned blood off ‘em or somethin’.”

{¶60} The defense argued that Calvin Davis’s statements to Henderson

were admissible as statements against Calvin Davis’s penal interest. The trial judge

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found that no corroborating circumstances supported the truthfulness of these

statements. He therefore excluded them.

{¶61} Appellant argues that the statements meet every requirement of

Evid.R. 804(B)(3) and therefore should have been admitted. He further argues that

excluding the statements denied him due process.

A. Evid.R. 804(B)(3)

{¶62} Calvin Davis’s statement that McGhee, Jelks, and Taborn killed

Arnett was clearly not against Calvin Davis’s penal interest. On the other hand, his

statement that McGhee, Jelks, and Taborn washed blood from themselves at Calvin

Davis’s house was against his penal interest, at least arguably. The statement could

be construed as implying that he permitted the others to wash off the blood, which

could be deemed to violate R.C. 2921.32(A), obstructing justice.

{¶63} However, the rule requires that the statement so far subjected him to

criminal liability that a reasonable person would not make the statement unless true.

Issa, 93 Ohio St.3d at 58, 752 N.E.2d 904. Appellant concedes that the statement

represents an effort to shift blame to Taborn, McGhee, and Jelks. The evidence at

trial shows that Calvin Davis was far more deeply involved in Arnett’s murder than

his statement to Henderson would suggest. A reasonable person might easily make

a false statement that minimized his involvement in the offense. Compare People

v. Petros (1993), 198 Mich.App. 401, 499 N.W.2d 784.

{¶64} Moreover, there is little to indicate that the statement is trustworthy.

The sole corroborating circumstance is that Calvin Davis was not speaking to police

and therefore was not trying to curry favor. However, while “jailhouse confessions

to cellmates” may be “trustworthy and admissible,” we cannot say the same of a

statement that shifts blame from the declarant to others. (Emphasis added.)

Westmoreland, 240 F.3d at 628.

{¶65} Appellant purports to find further corroboration in the facts that

Henderson and Calvin Davis were discussing their cases, that Henderson knew

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Calvin Davis was in jail on drug charges, and that “prior indictments, convictions,

or dismissals” were therefore a likely topic of conversation between them.

Appellant offers no explanation of how these facts show the trustworthiness of

Calvin Davis’s statements. On balance, we find that the exclusion of Calvin

Davis’s statements comported with Evid.R. 804(B)(3).

B. Due Process

{¶66} Appellant further argues that, irrespective of whether the statements

were admissible under Evid.R. 804(B)(3), their exclusion denied him due process

of law. Here, appellant relies on Chambers v. Mississippi (1973), 410 U.S. 284, 93

S.Ct. 1038, 35 L.Ed.2d 297. Chambers holds that due process “affords criminal

defendants the right to introduce into evidence third parties’ declarations against

penal interest—their confessions—when the circumstances surrounding the

statements ‘provid[e] considerable assurance of their reliability.’ ” Lilly, 527 U.S.

116, 130, 119 S.Ct. 1887, 144 L.Ed.2d 117 (plurality opinion) (emphasis added),

quoting Chambers, 410 U.S. at 300, 93 S.Ct. 1038, 35 L.Ed.2d 297.

{¶67} In this case, the circumstances surrounding Calvin Davis’s

statements provide no assurances of reliability remotely comparable to those in

Chambers. There, the declarant confessed to the murder, and his confession

exonerated the defendant. Chambers, 410 U.S. at 297, 93 S.Ct. 1038, 35 L.Ed.2d

297. But Calvin Davis’s statements did not amount to a confession; he may have

exposed himself to some liability, but he was accusing other people of killing

Arnett. Furthermore, Calvin Davis’s statements did not exonerate appellant; the

possible involvement of three other persons in the murder hardly disproves

appellant’s guilt.

{¶68} In Chambers, the declarant’s statement was corroborated both by the

circumstances of its making and by other evidence.2 410 U.S. at 300, 93 S.Ct. 1038,

2. Although “the fact that other evidence corroborates the statement is irrelevant” to the

Confrontation Clause analysis when the state attempts to introduce a statement against interest

16

January Term, 2002

35 L.Ed.2d 297; see, also, Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d

738. In this case, Calvin Davis’s statements were corroborated to some extent by

the circumstances of their making (in that they were not made to police), but not at

all by other evidence. Finally, the Chambers declarant was available to be cross-

examined. Chambers, 410 U.S. at 301, 93 S.Ct. 1038, 35 L.Ed.2d 297. Calvin

Davis was not.

{¶69} “Chambers was an exercise in highly case-specific error correction.”

Montana v. Egelhoff (1996), 518 U.S. 37, 52, 116 S.Ct. 2013, 135 L.Ed.2d 361

(plurality opinion). The case “establish[ed] no new principles of constitutional

law” but “h[e]ld quite simply that under the facts and circumstances of this case

the rulings of the trial court deprived Chambers of a fair trial.” (Emphasis added.)

Egelhoff, quoting Chambers, 410 U.S. at 302-303, 93 S.Ct. 1038, 35 L.Ed.2d 297.

{¶70} The quite different “facts and circumstances” of this case call for a

contrary result. Unlike the trial court in Chambers, the court here did not apply the

hearsay rule “mechanistically to defeat the ends of justice.” Chambers, 410 U.S.

at 302, 93 S.Ct. 1038, 35 L.Ed.2d 297. Rather, the court applied the rule properly

for its historic purpose: to exclude statements of dubious reliability that cannot be

tested by cross-examination. Appellant’s second proposition is overruled.

III. Sufficiency and Weight of Evidence

{¶71} In his fourteenth proposition, appellant contends that the evidence

was insufficient to convict him.

{¶72} The state’s evidence showed that Calvin Davis wanted Arnett dead

and that he had brought appellant to Shelby County no more than a week before her

murder. Arnett was last seen alive late in the evening on May 9, and appellant

returned to Georgia the very next morning. He traveled under false names, carried

(Madrigal, 87 Ohio St.3d 378, 387, 721 N.E.2d 52), the same is not true when the defense attempts

to introduce such a statement as a matter of due process. See Chambers, 410 U.S. 284, 93 S.Ct.

1038, 35 L.Ed.2d 297; Green v. Georgia, 442 U.S. at 97, 99 S.Ct. 2150, 60 L.Ed.2d 738.

17

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no identification during his Ohio sojourn, and went out of his way to avoid the

Sidney bus station.

{¶73} Jelks was present when Calvin Davis proposed that he and McGhee

pay appellant to “hit” Arnett “so [their] drug cases would get dropped.” Jelks saw

McGhee give appellant $10,000 in a duffel bag, and he watched appellant count it.

Calvin Davis told his wife that he had paid appellant $5,000.

{¶74} Appellant had a large cyst near his eye. On the night of the murder,

one witness saw a black man with a “mole” or “knot” near his eye carrying a pistol.

Another saw Arnett that night in the company of a black man with a “bump” near

his eye.

{¶75} Later that night, McGhee was present when appellant described the

murder to Calvin Davis. According to McGhee, appellant also told Calvin Davis

that he “threw the gun up there in the woods” near the home of Calvin Davis’s

nephew. A .38-caliber pistol was later found in that vicinity; two witnesses

identified that gun as belonging to Calvin Davis. Jewel Davis testified that Calvin

Davis gave that gun to appellant. Calvin Davis’s gun was .38-caliber; so was the

bullet removed from Arnett’s corpse.

{¶76} Appellant also mentioned “the window being broke out” of Arnett’s

car, McGhee testified. Arnett’s car had a broken window when her husband found

it on the morning of May 10, and broken glass was found near Arnett’s body.

{¶77} Appellant was identified as the source of semen found on a vaginal

swab taken during Arnett’s autopsy. After initially denying to a detective that he

knew Arnett, appellant eventually admitted that he had had sexual relations with

her.

{¶78} On sufficiency-of-the-evidence review, “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

18

January Term, 2002

beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560.

{¶79} Appellant argues that the testimony implicating him was

“contradictory and incredible.” However, this contention calls for an evaluation of

the witnesses’ credibility, which—as we have repeatedly pointed out—is not proper

on review for evidentiary sufficiency. See, e.g., State v. Murphy (2001), 91 Ohio

St.3d 516, 543, 747 N.E.2d 765; State v. Waddy (1992), 63 Ohio St.3d 424, 430,

588 N.E.2d 819; State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227

N.E.2d 212, paragraph one of the syllabus.

{¶80} Appellant contends that we should not consider Calvin Davis’s

statements in this sufficiency review because, as appellant claims in his first

proposition, they were inadmissible hearsay. He is mistaken. The statements were

properly admitted, and on a claim of insufficient evidence, the reviewing court

considers all the evidence admitted against the appellant at trial. See Lockhart v.

Nelson (1988), 488 U.S. 33, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265.

{¶81} Appellant further claims that there was insufficient evidence that the

murder was committed for hire. But this ignores Jelks’s testimony. Jelks not only

heard the conversation in which Calvin Davis hired appellant to kill Arnett, he

actually saw McGhee pay his portion in cash.

{¶82} The evidence, if believed, proves that appellant killed Arnett, that he

did so to prevent her testimony against Calvin Davis’s drug ring, and that he did so

for hire. Appellant’s fourteenth proposition of law is therefore overruled.

{¶83} In his third proposition, appellant contends that his conviction was

against the manifest weight of the evidence. “Pursuant to R.C. 2953.02, [this court]

can overturn a conviction as being against the manifest weight of the evidence in a

capital case, but only where the crime was committed after January 1, 1995.” State

v. Sanders (2001), 92 Ohio St.3d 245, 254, 750 N.E.2d 90. Arnett was murdered

in May 1994. Appellant’s third proposition is therefore overruled.

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IV. Venue

{¶84} In his eleventh proposition, appellant asserts that the trial court

should have granted his motion for a change of venue because “extensive news

coverage and widespread media exposure” of Arnett’s murder prevented him from

obtaining a fair trial.

{¶85} A trial court has discretion to grant or deny a change-of-venue

motion; its ruling will not be disturbed on appeal unless that discretion was abused.

See, e.g., State v. Lundgren (1995), 73 Ohio St.3d 474, 479, 653 N.E.2d 304.

{¶86} Ordinarily, a defendant claiming that pretrial publicity denied him a

fair trial must show that one or more jurors were actually biased. See Mayola v.

Alabama (C.A.5, 1980), 623 F.2d 992, 996. However, “[p]rejudice is presumed *

* * when pretrial publicity is sufficiently prejudicial and inflammatory and * * *

saturated the community where the trials were held.” Coleman v. Kemp (C.A.11,

1985), 778 F.2d 1487, 1490, citing Murphy v. Florida (1975), 421 U.S. 794, 798-

799, 95 S.Ct. 2031, 44 L.Ed.2d 589; Sheppard v. Maxwell (1966), 384 U.S. 333, 86

S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14

L.Ed.2d 543; Rideau v. Louisiana (1963), 373 U.S. 723, 726-727, 83 S.Ct. 1417,

10 L.Ed.2d 663; Mayola v. Alabama 623 F.2d at 997.

{¶87} Forty-seven veniremen were individually questioned in the voir dire

process. Of these, forty-six were asked about pretrial publicity. Of these, forty-

two had read or heard something about the case. But although the voir dire suggests

that local media gave attention to the case, the record does not demonstrate that the

publicity “saturated the community.” Coleman v. Kemp, 778 F.2d at 1490.

Moreover, despite appellant’s allegations of “inflammatory” media coverage, there

is nothing in the record to show the content of the coverage.

{¶88} Thus, appellant has shown neither that the media coverage saturated

the community nor that it was inflammatory. Absent such a showing, we have no

basis to presume prejudice.

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January Term, 2002

{¶89} In order to prevail on his change-of-venue claim, appellant must

show that one or more of the jurors were actually biased by pretrial publicity. State

v. Treesh (2001), 90 Ohio St.3d 460, 464, 739 N.E.2d 749. We have closely

examined the voir dire transcript, mindful that “[t]he examination of jurors on their

voir dire affords the best test as to whether prejudice exists in the community

against the defendant, and whether it appears that opinions as to the guilt of the

defendant of those called for examination for jurors are not fixed but would yield

readily to evidence, it is not error to overrule an application for a change of venue,

in absence of a clear showing of an abuse of discretion.” State v. Swiger (1966), 5

Ohio St.2d 151, 34 O.O.2d 270, 214 N.E.2d 417, paragraph one of the syllabus.

{¶90} The voir dire record shows that of the forty-two jurors who had read

or heard something about the case, thirty-eight said that they had not formed a firm

opinion and could base a verdict on the trial evidence. One admitted forming

opinions, but she had not formed one as to the defendant’s guilt or innocence, and

she stated that he could set her opinions aside. Three stated that they had formed

opinions they could not set aside; the trial court promptly dismissed all three.

{¶91} The United States Supreme Court has recognized that voir dire

denials of bias may not always be reliable: “In a community where most veniremen

will admit to a disqualifying prejudice, the reliability of the others’ protestations

may be drawn into question; for it is then more probable that they are part of a

community deeply hostile to the accused, and * * * may unwittingly have been

influenced by it.” (Emphasis added.) Murphy, 421 U.S. at 803, 95 S.Ct. 2031, 44

L.Ed.2d 589.

{¶92} Here, however, only three veniremen of forty-two admitted that they

had formed preconceived opinions that they could not set aside. In Murphy, where

a far larger proportion of the venire (twenty of seventy-eight) was excused for bias,

the court stated: “This * * * by no means suggests a community with sentiment so

poisoned against petitioner as to impeach the indifference of jurors who displayed

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no animus of their own.” 421 U.S. at 803, 95 S.Ct. 2031, 44 L.Ed.2d 589. Thus,

the trial judge here, as in Murphy, was entitled to rely on the truthfulness of the

veniremen who stated under oath that they could be impartial.

{¶93} Significantly, the defense did not challenge any prospective juror for

cause on the ground that the juror had been biased by pretrial publicity. In fact,

defense counsel specifically “passed for cause” (i.e., declined to challenge) thirty-

two prospective jurors who had heard something about the case. Compare State v.

Davis (1996), 76 Ohio St.3d 107, 111, 666 N.E.2d 1099.

{¶94} On these facts, we cannot say that the trial court abused its discretion

by denying a change of venue. Appellant’s eleventh proposition is overruled.

V. Jury Selection Issues

{¶95} In his twelfth proposition, appellant complains about various aspects

of the jury selection.

A. Motion for Individual Voir Dire

{¶96} The trial court allowed individual, sequestered voir dire only for

pretrial publicity and death qualification issues. This was within the trial court’s

discretion: “There is no requirement that voir dire in a capital case must be

conducted in sequestration.” State v. Fears (1999), 86 Ohio St.3d 329, 338, 715

N.E.2d 136.

{¶97} Nevertheless, appellant claims that the entire venire was “tainted” by

hearing the answers that two prospective jurors gave during general voir dire.

When asked if he “would give a police officer more credibility simply because he’s

a police officer,” Juror No. 48 said “Yes.” Juror No. 34 was asked by defense

counsel whether “sometimes the courts * * * are too soft on criminals.” He said,

“Yes” and explained, when asked, why he thought so.

{¶98} Nothing in the record indicates that the statements at issue biased the

other veniremen. Absent some such indication, we decline to speculate that hearing

these opinions must somehow have irretrievably tainted the other prospective

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January Term, 2002

jurors. See State v. Sanders (2001), 92 Ohio St.3d 245, 248, 750 N.E.2d 90, citing

State v. Doerr (1998), 193 Ariz. 56, 62, 969 P.2d 1168, and Lucero v. Kerby

(C.A.10, 1998), 133 F.3d 1299, 1308-1309. Compare Mach v. Stewart (C.A.9,

1997), 137 F.3d 630 (prejudice presumed where a venirewoman made repeated,

definite assertions about a factual matter about which the venirewoman happened

to be an expert that was germane to the trial).

{¶99} Finally, appellant complains that the trial court “cut off” his

questioning of a juror. The record does not support this claim. When defense

counsel began to question Juror No. 73, counsel began with the comment, “I

haven’t heard from you yet today.” The trial court admonished counsel: “Just

because some jurors did not answer questions, I’m not going to allow you to go

through and pick each one just because they didn’t answer a question or raise a

question. If you have a specific question to ask them, fine; but just because they

haven’t answered is no reason to ask them specific questions.” Counsel then

proceeded to examine Juror No. 73 without further interruption from the court.

B. Peremptory Challenges

{¶100} Appellant complains that the prosecutor used peremptory

challenges to exclude jurors who opposed capital punishment. Appellant did not

object at trial and thus has waived this claim. See State v. Allen (1995), 73 Ohio

St.3d 626, 629, 653 N.E.2d 675, and State v. Lundgren (1995), 73 Ohio St.3d 474,

484, 653 N.E.2d 304. See, also, State v. Reynolds (1998), 80 Ohio St.3d 670, 675,

687 N.E.2d 1358, where we rejected the claim that this practice is unconstitutional.

C. Challenge for Cause

{¶101} On voir dire, Juror No. 16 indicated a belief that murderers should

get the death penalty to protect society and stated that “probably fear in me would

try [to] persuade going the other, towards death.” She also repeatedly affirmed that

she would set aside her feelings and consider mitigating circumstances. Appellant

passed Juror No. 16 for cause, and she was seated on the jury.

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{¶102} Appellant now contends that this juror was predisposed to vote in

favor of death irrespective of mitigation and should therefore have been excused

for cause. However, by declining to challenge the juror for cause, appellant waived

this issue.

D. Venire Drawn from Electors List

{¶103} Finally, appellant complains that the venire was drawn exclusively

from registered voters rather than from licensed drivers. This, he alleges, produced

a venire with no black members.

{¶104} Under R.C. 2313.08(B), each county may compile its jury list either

(1) exclusively from the list of electors certified by the county board of elections,

or (2) from that list, combined with the list of licensed drivers certified by the

Registrar of Motor Vehicles. Shelby County uses the electors list.

{¶105} Appellant contends that drawing the venire solely from registered

voters deprived him of his Sixth Amendment right to a jury drawn from “a fair cross

section of the community.” Taylor v. Louisiana (1975), 419 U.S. 522, 527, 95 S.Ct.

692, 42 L.Ed.2d 690. See, generally, State v. Fulton (1991), 57 Ohio St.3d 120,

566 N.E.2d 1195, paragraph two of the syllabus, citing Duren v. Missouri (1979),

439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579.

{¶106} However, we have consistently upheld the calling of venires from

voter registration lists. See, e.g., State v. Moore (1998), 81 Ohio St.3d 22, 28, 689

N.E.2d 1; State v. Johnson (1972), 31 Ohio St.2d 106, 60 O.O.2d 85, 285 N.E.2d

751, paragraph two of the syllabus. This practice does not systematically exclude

blacks from the jury-selection process. Moore, supra. Moreover, appellant

submitted no evidence that blacks are underrepresented in Shelby County venires,

nor that the use of voter lists caused such underrepresentation. Appellant’s twelfth

proposition is overruled.

VI. Instructions

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January Term, 2002

{¶107} In his fourth proposition, appellant contends that the trial court’s

guilt-phase instructions were deficient as to the death specifications. According to

appellant, the trial court should have defined the term “for hire” in the murder-for-

hire specification and the terms “witness” and “criminal proceeding” in the witness-

murder specification.

{¶108} Appellant did not request an instruction defining these terms. Thus,

he can prevail only if the court’s failure to define the terms was plain error. “Plain

error is an obvious error * * * that affects a substantial right.” State v. Keith (1997),

79 Ohio St.3d 514, 518, 684 N.E.2d 47. An alleged error is plain error only if the

error is “obvious,” State v. Sanders (2001), 92 Ohio St.3d 245, 257, 750 N.E.2d 90,

and “but for the error, the outcome of the trial clearly would have been otherwise.”

State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph

two of the syllabus. See, generally, State v. Barnes (2002), 94 Ohio St.3d 21, 27-

28, 759 N.E.2d 1240.

{¶109} “Failure of a trial court to separately and specifically instruct the

jury on every essential element of each crime with which an accused is charged

does not per se constitute plain error under Crim.R. 52(B).” State v. Adams (1980),

62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph two of the syllabus.

{¶110} Appellant concedes that “many of the elements from the statute

[delineating aggravating circumstances] are commonly understood terms.” While

he contends that “hire” and “criminal proceeding” are terms “open to

interpretation,” he does not explain how the trial court should have defined them,

nor what incorrect meanings the jury might have given them. “Not every term or

phrase in our criminal statutes possesses some hidden metaphysical legal meaning

requiring lengthy instruction for a juror to understand.” United States v. Hall

(C.A.8, 1986), 801 F.2d 356, 360.

{¶111} It is hardly likely that the verdict hinged upon the trial court’s failure

to define the terms “for hire,” “witness,” and “criminal proceeding.” Consequently,

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no plain error exists, and appellant’s failure to request such instructions waived the

issue. Appellant’s fourth proposition is overruled.

{¶112} In his tenth proposition, appellant contends that the trial court failed

to give a required penalty-phase instruction. The trial court instructed:

{¶113} “You shall recommend the sentence of death if you unanimously,

all twelve of you, find by proof beyond a reasonable doubt that the aggravating

circumstances outweigh the mitigating factors. If you do not so find, you shall

unanimously, all twelve, recommend either life imprisonment with parole

eligibility after serving 20 years of imprisonment or a life sentence with parole

eligibility after serving 30 years of imprisonment.”

{¶114} In State v. Brooks (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030, this

court held that a jury need not unanimously reject the death penalty in order to

recommend a life sentence. However, “the jury, when it cannot unanimously agree

on a death sentence, [is required] to move on * * * to a consideration of which life

sentence is appropriate, with that determination to be unanimous.” 75 Ohio St.3d

at 162, 661 N.E.2d 1030. Nothing in the above instruction is inconsistent with the

holding of Brooks.

{¶115} Brooks also contains dictum urging trial courts to specifically

instruct that “a solitary juror may prevent a death penalty recommendation * * *.”

Id.; but, see, Jones v. United States (1999), 527 U.S. 373, 379-383, 119 S.Ct. 2090,

144 L.Ed.2d 370; Buell v. Mitchell (C.A.6, 2001), 274 F.3d 337, 354-355.

Appellant claims that the trial court erred by not giving such an instruction.

However, he did not request it, and he therefore waived any claim he may have had

to it.

{¶116} In light of what the trial court did instruct, we cannot find plain

error. The court instructed: “You shall recommend the sentence of death if you

unanimously, all twelve of you, find by proof beyond a reasonable doubt that the

aggravating circumstances outweigh the mitigating factors.” (Emphasis added.)

26

January Term, 2002

“When read as a whole, the trial court’s instruction effectively informed the jury

that a death penalty recommendation could be returned only after a unanimous vote

* * *.” State v. Davis (1996), 76 Ohio St.3d 107, 117, 666 N.E.2d 1099.

{¶117} Appellant has waived this claim, and there is no plain error.

Consequently, we overrule his tenth proposition of law.

VII. Prosecutorial Misconduct

{¶118} In his eighth proposition of law, appellant claims that prosecutorial

misconduct tainted both phases of trial. Only one of the comments that he cites

was objected to at trial, however. The others are waived.

{¶119} In the guilt phase, the prosecutor argues that appellant was “seen by

Tanya Counts” with Arnett. Appellant’s objection was overruled. Appellant claims

the argument was improper because Counts did not identify him as the man she saw

with Arnett.

{¶120} However, the prosecutor neither said nor implied that Counts

actually identified appellant. Counts testified that the man had a “bump” on his

face in the same place as appellant’s. And, she added, appellant’s photograph

looked like the same man. From this evidence, it was reasonable to infer that

appellant was the man whom Counts saw with Arnett. A prosecutor is entitled to

draw reasonable inferences from the evidence. See, e.g., State v. Waddy (1992), 63

Ohio St.3d 424, 436, 588 N.E.2d 819.

{¶121} For these reasons appellant’s eighth proposition of law lacks merit

and is overruled.

VIII. Crime-Scene Photos & Video

{¶122} Appellant did not object to the admission of the crime-scene

photographs and videotape. Hence, he has waived this issue. No plain error exists;

therefore, his thirteenth proposition is overruled.

IX. Merger

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{¶123} In his fifth proposition, appellant claims that the two death

specifications arose from “one indivisible act” and therefore should have been

merged. However, he did not request merger at trial. Thus, he can prevail only if

he can demonstrate that not merging the specifications amounted to plain error.

{¶124} In the penalty phase of a capital case “where two or more

aggravating circumstances arise from the same act or indivisible course of conduct,

and are thus duplicative,” they will be merged for sentencing purposes. State v.

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

of the syllabus. The analysis used to determine whether two aggravating

circumstances merge is the same as that used to determine whether two offenses

are allied offenses of similar import. Id. at 197-198, 15 OBR 311, 473 N.E.2d 264,

citing State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345.

{¶125} Logan sets forth the following test: “[I]n order for two crimes to

constitute allied offenses of similar import, * * * [t]he offenses and their elements

must correspond to such a degree that commission of the one offense will result in

the commission of the other.” 60 Ohio St.2d at 128, 14 O.O.3d 373, 397 N.E.2d

1345. Thus, the R.C. 2929.02(A)(2) specification merges with the R.C.

2929.04(A)(8) specification only if the elements of the two specifications

“correspond to such a degree that commission of one [specification] will result in

the commission of the other.”

{¶126} Between the two specifications at issue here, no such

correspondence exists. The R.C. 2929.04(A)(2) specification requires only that

“[t]he offense was committed for hire.” The elements of the R.C. 2929.04(A)(8)

specification are that (1) the victim was a witness to an offense; and (2) that the

purpose of the killing was to prevent the victim from testifying in a criminal

proceeding.

{¶127} These two specifications are by no means “indivisible” even though

they happen to apply to the same murder. Indeed, their elements do not overlap.

28

January Term, 2002

Hired killers do not solely kill witnesses, nor are witnesses killed only by hired

killers. Thus, it is not the case that “commission of the one [specification] will

result in the commission of the other.” Logan, 60 Ohio St.2d at 128, 14 O.O.3d

373, 397 N.E.2d 1345.

{¶128} Appellant has not demonstrated that plain error occurred. We

overrule his fifth proposition of law.

X. Sentencing Opinions

{¶129} In his sixth proposition, appellant attacks the trial court’s sentencing

opinion, arguing that it failed to consider mitigating factors and improperly

considered nonstatutory aggravating circumstances.

{¶130} Appellant contends that the trial court failed to consider the

mitigating factor set forth in R.C. 2929.04(B)(5): “lack of a significant history of

prior criminal convictions * * *.” The parties stipulated at trial that appellant’s

criminal record “consists of a conviction for aggravated trafficking in drugs here in

this county in 1995.”

{¶131} It is clear that the trial court did consider the (B)(5) factor: a

paragraph of the sentencing opinion is devoted exclusively to appellant’s record.

The court concluded that it could “give no weight to [appellant’s] lack of a

significant criminal record as a mitigating factor.” (Emphasis added.) “The fact

that an item of evidence is admissible * * * does not automatically mean that it

must be given any weight.” State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR

273, 509 N.E.2d 383, paragraph two of the syllabus.

{¶132} Appellant also contends that the trial court weighed nonstatutory

aggravating circumstances against him. After noting that appellant “was raised in

a very loving, supportive and religious family,” the sentencing opinion states: “The

Court finds no mitigating factors in any of the evidence produced regarding the

Defendant’s history or family background. If anything, such evidence only

exacerbates the Defendant’s involvement in this crime.” (Emphasis added.)

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{¶133} To “exacerbate” is “ * * * to intensify the bad qualities of.”

Webster’s Third New International Dictionary (1961) 790. Thus, the trial judge’s

use of this word may suggest that he treated appellant’s family background as an

aggravating circumstance. But that overlooks his use of the words “If anything” to

preface the remark.

{¶134} In any case, we need not parse the sentencing opinion. The opinion

of the court of appeals contains nothing to indicate that it treated appellant’s

background as aggravating. Hence, that court’s independent review cured any error

by the trial court, and so will our own independent review. See State v. Bies (1996),

74 Ohio St.3d 320, 325, 658 N.E.2d 754; State v. Lorraine (1993), 66 Ohio St.3d

414, 422, 613 N.E.2d 212; State v. Bradley (1989), 42 Ohio St.3d 136, 148, 538

N.E.2d 373.

{¶135} Finally, appellant contends that the trial court should not have

discussed his lack of remorse, since he did not claim remorse as a mitigating factor.

See State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542. But the

opinion contains no language suggesting that the court used this as an aggravating

circumstance. Rather, the court was simply noting the absence of a possible

mitigating factor. Appellant’s sixth proposition is overruled.

{¶136} In his seventeenth proposition, appellant claims that the court of

appeals “refused to consider” the R.C. 2929.04(B)(6) mitigating factor. R.C.

2929.04(B)(6) requires that “[i]f the offender was a participant in the offense but

not the principal offender, [the court shall consider] the degree of the offender’s

participation in the offense and * * * in the acts that led to the death of the victim.”

The court of appeals found the (B)(6) factor “entitled to no weight” because “a jury

convicted appellant of aggravated murder as well as two death penalty

specifications.”

{¶137} Even though the guilty verdict did not entail a specific finding that

appellant was the principal offender, the (B)(6) factor does not apply, since the

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evidence clearly indicates that appellant was the principal offender. For that reason,

the court of appeals’ assignment of no weight to the (B)(6) factor was not error.

Appellant’s seventeenth proposition is without merit and is overruled.

XI. Ineffective Assistance

{¶138} In his sixteenth proposition of law, appellant contends that his trial

counsel failed to render effective assistance.

{¶139} Ineffective assistance claims are governed by a two-part test. To

prevail, the defendant must show (1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable representation, and

(2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s errors,

the proceeding’s result would have been different. See Strickland v. Washington

(1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674; Williams v. Taylor

(2000), 529 U.S. 362, 390-391, 120 S.Ct. 1495, 146 L.Ed.2d 389; State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

{¶140} First, appellant contends that, since this case involved a white victim

and black defendant, his counsel should have questioned veniremen on their racial

attitudes during individual, sequestered voir dire. Counsel did question the panel

about racial attitudes during general voir dire. However, appellant argues that this

topic is so sensitive that jurors will not answer questions about it honestly in the

presence of other veniremen.

{¶141} However, appellant ignores the fact that his counsel requested

individual, sequestered voir dire, and the trial court denied the motion.

Consequently, appellant’s counsel did not have the opportunity to query jurors in

sequestration with regard to subjects other than pretrial publicity and death-

qualification. Counsel can hardly be blamed for following a procedure ordered by

the trial court.

{¶142} Second, appellant contends that his counsel should have tried to

impeach Jermaine Jelks with prior inconsistent statements. However, those

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statements are not in the record before us. Hence, appellant cannot show either

deficient performance or prejudice.

{¶143} Finally, appellant contends that his counsel failed to object to eight

alleged errors. Five of his proposed objections, however, would have been contrary

to existing law. See State v. Grant (1993), 67 Ohio St.3d 465, 472, 620 N.E.2d 50

(“recommendation” instruction); State v. Logan (1979), 60 Ohio St.2d 126, 14

O.O.3d 373, 397 N.E.2d 1345 (merger); State v. Van Gundy (1992), 64 Ohio St.3d

230, 594 N.E.2d 604 (reasonable doubt instruction); State v. Phillips (1995), 74

Ohio St.3d 72, 100, 656 N.E.2d 643 (purpose instruction); Tuilaepa v. California

(1994), 512 U.S. 967, 976, 114 S.Ct. 2630, 129 L.Ed.2d 750 (“nature and

circumstances” instruction); State v. McNeill (1998), 83 Ohio St.3d 438, 453, 700

N.E.2d 596 (same).

{¶144} Regarding counsel’s failure to request an instruction defining “for

hire,” “witness,” and “criminal proceeding,” appellant fails to show prejudice.

Since these are commonly understood terms, there is no reasonable probability that,

had they been defined, the trial’s outcome would have been otherwise.

{¶145} Regarding counsel’s failure to request an instruction that a single

juror may block a death sentence, see State v. Brooks (1996), 75 Ohio St.3d 148,

661 N.E.2d 1030, appellant fails to suggest how he was prejudiced by the lack of

such an instruction.

{¶146} Regarding counsel’s failure to object to the gruesome crime scene

photos and videotape, there was no prejudice. Since the photos and video had

legitimate probative value, there is no question that some of them would have been

admitted. An objection would have done little more than eliminate some

duplicative photos. The evidence against appellant was strong. The prosecutor did

not use the gruesome images to inflame the jury. There is no reasonable likelihood

that the result of the trial would have been otherwise had counsel objected to the

photos and tapes.

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{¶147} Appellant’s sixteenth proposition is without merit and is overruled.

XII. Settled Issues

{¶148} Appellant’s ninth proposition, in which he claims that the trial court

erred by calling the jury’s recommendation a “recommendation,” is summarily

overruled. See, e.g., State v. Mitts (1998), 81 Ohio St.3d 223, 232-233, 690 N.E.2d

522. Additionally, his eighteenth proposition, which questions the death penalty’s

constitutionality, is without merit and is also overruled.

XIII. Independent Sentence Review

{¶149} In his seventh and fifteenth propositions, appellant contends that the

death sentence in this case is inappropriate, excessive, and disproportionate.

{¶150} Under R.C. 2929.05, we must independently reweigh the

aggravating circumstances against the mitigating factors submitted by appellant.

The aggravating circumstances are murder for hire and murder of a witness to

prevent her testimony. The evidence is sufficient to prove these circumstances

beyond a reasonable doubt.

{¶151} During appellant’s case in mitigation, three members of his family

testified: his older brother, Sam Yarbrough, Jr., his sister, Virginia Martin-Brown,

and his aunt, Evelyn Stringer.

{¶152} Appellant, born in 1958, was 36 when he murdered Arnett.

Although he was raised in public housing, his relatives testified that the area was

not a high-crime area. Appellant’s sister, Virginia, recalled the neighborhood as “a

big extended family.” She remembered “everybody being [her] mother and

brothers and everybody being [her] father. * * * And when we got out of school, if

our parents worked, somebody else’s parents would say * * * don’t do this, don’t

do that; and they watched after us as a unit.”

{¶153} Appellant’s father was an alcoholic whose spending on liquor

created friction. His parents broke up in 1965. Four years later, when appellant

was about 11, his mother died. His grandmother then cared for him and his siblings.

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Appellant’s grandmother attended church regularly, worked hard, was a good

person who knew right from wrong, and raised the children with sound values.

{¶154} Appellant’s relatives described him as a “happy-go-lucky” child,

“mischievous” but respectful, “never * * * mean” or quarrelsome. In school, he

was learning-disabled but displayed no behavior problems.

{¶155} As an adult, appellant was a hard worker, capable of exercising

responsibility. His brother Sam, a carpenter who frames houses, let him supervise

other workers because he could be trusted to make sure a job was done right.

{¶156} Appellant had two sons by different mothers. Although he lived

full-time with neither, he was a caring father who took time to involve himself in

his sons’ lives, attending parent-teacher conferences and making sure that they had

clothes for school.

{¶157} Appellant’s relatives unanimously declared that murder and

involvement with drugs were out of character for him. He was never in trouble

except for a traffic ticket.

{¶158} The defense also presented Dr. Douglas Johnson, a psychologist.

Johnson interviewed appellant four times, gave him tests, reviewed school and

court records, and talked with his family.

{¶159} Appellant’s school records indicated his placement in a program for

the learning-disabled; Johnson speculated that he may have been classified as

“educationally mentally retarded,” although Johnson’s testing did not “put him

quite into that category.” Appellant’s performance IQ was 93 on the Wechsler

scale, 7 points below normal; his verbal IQ was 82. He reads below a third grade

level. His IQ and reading level were consistent with a learning disability. However,

his ability to “figure things out” was “fairly good.”

{¶160} Johnson found appellant to be moderately depressed, seeing himself

as a chronic failure. According to Johnson, depressed people often pursue “illicit

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January Term, 2002

activity” because they think, “Well, what’s the difference what I do, everything I

do ends in failure * * * anyway.”

{¶161} Appellant also displayed elevated “psychopathic deviate” and

paranoid scales and an elevated “hysterical conversion” scale, indicating a tendency

to “overreact * * * to threats and issues.”

{¶162} Johnson described appellant as “rather passive,” “nonviolent,”

lacking initiative, and inclined to “go along * * * and try to please people.” But he

was also “very distrusting” and had a “very high autonomy scale,” indicating a high

degree of independence. His personality profile indicates a tendency to feel

“trapped, bitter, resentful,” and “vulnerable.”

{¶163} Johnson felt that the crimes that appellant committed were

somewhat out of character for him and that appellant’s passivity would probably

make him “a model prisoner.”

{¶164} Appellant’s history or background is entitled to no mitigating

weight. Nothing in his environment predisposed him to crime. Although he lost

his parents, he lived in a close-knit neighborhood that functioned like an “extended

family,” and his grandmother instilled sound values.

{¶165} Certain elements of appellant’s character deserve some weight as

mitigating factors. The evidence indicates that the crimes that he committed in this

case are out of character. With his passive, nonviolent nature and capacity for work,

he may adjust well to prison, as Dr. Johnson suggested. On the other hand, it is

questionable whether a “trapped, bitter, resentful” and “distrusting” prisoner with

a high autonomy scale and a tendency to overreact will really be, in Dr. Johnson’s

words, a “model prisoner.” In the end, Dr. Johnson’s prediction, and appellant’s

character, carry little weight.

{¶166} Appellant does not claim, nor does the record suggest, the

applicability of any factors set forth in R.C. 2929.04(B)(1) through (B)(4). He does

contend that he “lack[s] * * * a significant history of prior criminal convictions and

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delinquency adjudications,” R.C. 2929.04(B)(5). However, inasmuch as appellant

was convicted in 1995 of aggravated drug trafficking, we find that R.C.

2929.04(B)(5) does not apply.

{¶167} Under R.C. 2929.04(B)(6), “[i]f the offender was a participant in

the offense but not the principal offender,” the sentencer must consider “the degree

of the offender’s participation in the offense and * * * in the acts that led to the

death of the victim” as a mitigating factor. Appellant argues that this mitigating

factor applies to him, as he claims that he was “only a participant” in the murder

and that Calvin Davis and McGhee were “more culpable” than he.

{¶168} However, by its terms, the (B)(6) factor applies only to a defendant

who was “not the principal offender,” i.e., the actual killer. In the penalty phase,

the defendant has the burden of proving, by a preponderance of the evidence, the

existence of mitigating factors. See State v. Jenkins (1984), 15 Ohio St.3d 164,

171-172, 15 OBR 311, 473 N.E.2d 264. Thus, the (B)(6) factor does not apply

unless a preponderance of the evidence shows that he was “a participant in the

offense but not the principal offender.”

{¶169} No evidence suggests that appellant was not the actual killer; in fact,

the evidence overwhelmingly proves that he was. Two witnesses testified that

appellant admitted shooting Arnett. Appellant was given a photo of Arnett before

the murder, he was the last person seen with Arnett, and he was seen with Calvin

Davis’s gun, which was later found near the murder scene. Appellant admitted to

having sexual relations with Arnett, and his semen was found in her body at the

autopsy.

{¶170} Nor is there any evidence that appellant was, as he claims,

“manipulated by powerful local drug dealers.” The record does not support the

statement in appellant’s brief that he was lured to Ohio by “the promise of a painting

job.” Calvin Davis and McGhee did not, so far as the evidence shows, “manipulate”

appellant. Compare State v. Lawson (1992), 64 Ohio St.3d 336, 352, 595 N.E.2d

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January Term, 2002

902. They simply offered him money in exchange for murder. He accepted. That

is not a mitigating factor but the essence of the murder-for-hire aggravating

circumstance.

{¶171} Moreover, appellant’s role in the crime belies any suggestion that

his participation was merely a matter of “going along.” His role was too active for

that. To begin with, the evidence suggests that he personally killed Arnett. In

addition, he apparently got to know her and worked his way into her confidence

before he killed her: she was seen in his company on the last night of her life, and

at some point he had sexual intercourse with her.

{¶172} Finally, the record affords no glimpse of appellant’s taking orders

from anyone; he appears to have been more analogous to an independent contractor

than an employee of the Davis gang. Indeed, the record shows him giving orders

to Paul Smith on the day after the murder. We find that the (B)(6) mitigating factor

is absent.

{¶173} The aggravating circumstances of murder for hire and witness-

murder carry great weight, and appellant’s mitigation is distinctly unimpressive.

Accordingly, we find that the aggravating circumstances outweigh the mitigating

factors beyond a reasonable doubt.

{¶174} The death sentence is proportionate to those approved in other

murder-for-hire cases, see State v. Issa (2001), 93 Ohio St.3d 49, 752 N.E.2d 904;

State v. Getsy (1998), 84 Ohio St.3d 180, 702 N.E.2d 866; State v. Davis (1991),

62 Ohio St.3d 326, 581 N.E.2d 1362; State v. Williams (1988), 38 Ohio St.3d 346,

528 N.E.2d 910, and in other witness-murder cases, see State v. Jalowiec (2001),

91 Ohio St.3d 220, 744 N.E.2d 163; State v. Smith (2000), 87 Ohio St.3d 424, 721

N.E.2d 93; State v. Coleman (1999), 85 Ohio St.3d 129, 707 N.E.2d 476.

{¶175} For the foregoing reasons, we affirm appellant’s convictions and

death sentence.

Judgment affirmed.

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MOYER, C.J., DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON,

JJ., concur.

PFEIFER, J., concurs in judgment.

__________________

James F. Stevenson, Shelby County Prosecuting Attorney, and Michael F.

Boller, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, Stephen A. Ferrell and Tracey A.

Leonard, Assistant Public Defenders, for appellant.

__________________

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