State v. LaMar

[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 181.]

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

[Cite as State v. LaMar, 2002-Ohio-2128.]

Criminal law—Aggravated murder of five prison inmates during prison riot—

Death penalty upheld, when.

(No. 1998-1983—Submitted November 14, 2001—Decided May 15, 2002.)

APPEAL from the Court of Appeals for Lawrence County, No. 95CA31.

__________________

COOK, J.

{¶1} The appellant, Keith LaMar, was convicted of murdering five prison

inmates during the infamous April 1993 riot at the Southern Ohio Correctional

Facility (“SOCF”) in Lucasville. The trial court sentenced LaMar to death for four

of these murders. For the reasons that follow, we affirm.

I. Factual Background

{¶2} On the afternoon of April 11, 1993, a group of Muslim inmates seized

control of cellblock “L” (“L-Block”) at SOCF. The rioting inmates took several

guards hostage and locked inmates considered “snitches” into various cells in the

L-6 section of L-Block. The Muslim inmates maintained control of unit L-6 while

two other dominant groups—the Aryan Brotherhood (a racist group of white

inmates) and the Black Gangster Disciples (a prison gang)—controlled other units

within L-Block.

{¶3} On the day of the riot, LaMar was an SOCF inmate serving a sentence

of eighteen years to life for a 1989 murder conviction. LaMar, who was not a

Muslim, did not plan or participate in the prison takeover and was in the prison

recreation yard when the riot began. But after the commotion began, LaMar and

two other inmates, Louis Jones and Derek Cannon, went back inside L-Block to

check the personal belongings in their respective cells. When the three were unable

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to get back outside because the Muslims had closed access to and from L-Block,

LaMar said to Jones and Cannon, “Ain’t no need in us staying in here getting caught

up in something we’re not a part of. Let’s kill all the snitches and get out to the

yard.”

{¶4} LaMar approached Cecil Allen, a leader of the Muslim group of

inmates, and asked, “if we kill the snitches, could we be let out to the yard so we

don’t be a part of this?” Allen consulted with the Muslim leadership and returned

a few minutes later to tell LaMar that the “orders has [sic] been granted to kill the

snitches.”

{¶5} After Allen granted permission to “kill the snitches,” LaMar, Jones,

and Cannon walked around the L-Block corridor to enlist other inmates to help

them. Eventually, the group recruited Hiawatha Frezzell (a.k.a. “Pittsburgh”), Eric

Scales (a.k.a. “Tiger”), Derrick Mathews, Rasheem Matthews, Albert Young (a.k.a.

“Da-Da”), and Gregory Curry to join the newly formed death squad. LaMar’s

group proceeded to unit L-2, where they retrieved bats, shovels, and weight bars to

use as weapons. The men also wore masks fashioned from T-shirts, towels, and

bandannas.

{¶6} After arming and disguising themselves, LaMar and his group returned

to L-6. Inmate Timothy Grinnell was operating the console that controlled the cell

doors within L-6. LaMar led his group to the upper tier of the cellblock and

instructed Grinnell to open a cell occupied by Andre Stockton. After Grinnell

complied with the demand, LaMar and Curry entered the cell and beat Stockton

with a shovel and a baseball bat. Other members of the group dragged Stockton

from the cell and participated in the beating.

{¶7} After beating Stockton, the group went downstairs to the lower tier of

L-6. LaMar yelled at Grinnell to open the cells occupied by inmates Ellis Walker

and Darrell Depina. After Walker refused to comply with LaMar’s command to

come out of the cell, LaMar and Curry dragged him to the main floor of the

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cellblock and beat him repeatedly. Other members of the death squad also

participated in Walker’s beating. LaMar then ordered Depina out of his cell. When

Depina refused, LaMar entered the cell and hit him several times before dragging

him to the main floor, as he had done with Walker. LaMar continued to beat Depina

with a baseball bat, striking him several times. Other members of LaMar’s group

joined in beating Depina, who died from his injuries.

{¶8} When LaMar finished beating Depina, he ordered Grinnell to open a

cell occupied by Bruce Vitale. When Vitale refused to come out of the cell, LaMar

hit him on the head with a shovel. LaMar continued beating Vitale on the head and

at one point knocked a tooth out of Vitale’s mouth. Vitale tried to defend himself

by crawling under the bed, but LaMar and Curry dragged him out of the cell and

continued the beating, joined by other members of the death squad. At one point,

LaMar told Jones, “I didn’t bring you all in here to stand around,” when he noticed

that Jones was not participating in the assault. Vitale was still alive when the group

left him but died after Frezzell and another member of LaMar’s group stabbed and

beat him again.

{¶9} LaMar continued on to a nearby cell occupied by Thomas Taylor,

another suspected snitch. Before LaMar could order Taylor’s cell opened, a

Muslim inmate named Harris intervened and told LaMar that Taylor was under

Muslim protection. LaMar angrily pushed Harris out of the way, saying, “If he

[Taylor] is in there, he’s a snitch. Fuck it. Kill him.” After Taylor told LaMar that

he was not a snitch, LaMar agreed to spare Taylor’s life, but only if Taylor would

kill Albert Staiano, who was locked in an adjacent cell. To save his own life, Taylor

agreed. LaMar ordered Taylor’s and Staiano’s cells opened and commanded one

of the other inmates to give a baseball bat to Taylor. Staiano tried to run from his

cell, but fell to the ground when Frezzell tripped him. Taylor hit Staiano over the

head several times with the baseball bat and then, after the bat broke, with a fire

extinguisher. Other death-squad members, not including LaMar, joined in the

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assault and stabbed Staiano repeatedly. When the beating ended, LaMar ordered

Taylor to return to his cell. Taylor eventually pleaded guilty to involuntary

manslaughter for his role in Staiano’s death.

{¶10} The death squad’s next stop was a cell occupied by Michael

Trocadero and four to five other inmates. LaMar ordered Grinnell to open the cell,

but Grinnell refused, saying that the Muslim leadership did not want those inmates

killed. As LaMar and his group began to leave L-6, it passed the cell of William

Svette, an elderly inmate who used a walker to move himself around. Svette, who

appeared to have been beaten earlier, cursed the death squad with obscenities and

racial epithets. On LaMar’s order, Grinnell opened Svette’s cell, where LaMar and

Curry beat Svette over the head with a baseball bat and a shovel. LaMar started to

leave the cell but returned to beat Svette again after noticing that Svette’s legs were

moving.

{¶11} Svette remained alive after the death squad left his cell. A short time

later, on Grinnell’s instructions to make sure all of the victims in L-6 were dead,

inmate Eric Girdy struck Svette across the head twice more with a baseball bat.

Svette continued to live after Girdy’s beating and was still alive after inmate Robert

Bass, on orders from one of the Muslim inmates, dragged Svette’s body to a ramp

near a prison recreation area. Svette eventually died after yet another inmate,

Freddie Frakes, beat him yet again with a baseball bat.

{¶12} After finishing their rampage, LaMar and the others left L-Block and

joined the large contingent of inmates gathered in the recreation yard. Many of the

participants in the L-6 killings remained together and discussed what had

transpired. During this time, LaMar saw inmate Dennis Weaver in the recreation

yard and told Curry, “I wish Weaver was in there. I’d have killed him, too.”

{¶13} Early the following morning, law enforcement officers surrounded

the approximately three hundred inmates gathered in the recreation yard and herded

them to a gymnasium on the SOCF grounds, where the inmates were handcuffed

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and taken to various cells around the prison. LaMar occupied a cell in K-Block

with nine other inmates: Scales, Frezzell, Weaver, William “Geno” Washington,

Jeffrey Mack, Michael Childers, Ricky Rutheford, William Bowling, and John

Malveaux. These ten inmates remained in the cell without incident for the rest of

the day.

{¶14} The next day, however, tensions began rising in the cell. LaMar and

Scales began harassing Weaver, accusing him of being a snitch and telling him that

“all snitches should be killed.” Weaver denied being a snitch and urged his fellow

cellmates to protest what he perceived as mistreatment of the inmates who were not

involved in the riot. LaMar became incensed by Weaver’s comments, yelled “shut

up, snitch,” punched Weaver in the face, and relegated him to a corner of the cell.

Scales and Mack also joined in the attack on Weaver. LaMar later ordered that

Weaver, Malveaux, Bowling, and Childers be tied up.

{¶15} Later that day, LaMar announced to the cellmates that “I want Mr.

Weaver dead. I want that snitch dead right now.” LaMar then accused Bowling of

being a snitch and threatened to kill Bowling if Bowling did not kill Weaver.

LaMar untied Bowling, handed him some string, and watched Bowling choke

Weaver. LaMar also threatened Rutheford, who then aided Bowling in the assault

by holding Weaver’s feet. LaMar became impatient with Bowling’s progress and

told Childers, “[I]f you want to live, if you ain’t no snitch, then you help kill him.”

LaMar then untied Childers, who complied with LaMar’s order by choking Weaver,

using the ropes with which LaMar had tied Childers’s wrists. When Childers began

hitting and kicking Weaver, LaMar told him to “just strangle him” because LaMar

wanted “to make it look like he hung hisself.” LaMar aided Childers by stuffing

toilet paper and pieces of plastic down Weaver’s throat in an effort to silence him.

Weaver eventually died while Childers was choking him.

{¶16} After Weaver died, LaMar instructed Bowling and Malveaux to

move the body to a corner of the cell. He also ordered them to tie a string from a

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cell mattress around Weaver’s neck “and hook it to the coat hook to make it look

like a suicide.” And before corrections officers removed Weaver’s body, LaMar

instructed everyone in the cell to tell them that Weaver had killed himself.

{¶17} The grand jury indicted LaMar on nine counts of aggravated murder

for his role in the deaths of Depina, Vitale, Staiano, Svette, and Weaver. Five of

the aggravated-murder counts alleged that LaMar killed each of the victims with

prior calculation and design. R.C. 2903.01(A). The remaining counts charged

LaMar with murdering Depina, Vitale, Staiano, and Svette while committing or

attempting to commit kidnapping. R.C. 2903.01(B). In addition, the grand jury

charged LaMar with four death-penalty specifications attached to the first eight

counts of the indictment: R.C. 2929.04(A)(4) (murder committed in a detention

facility); (A)(5) (prior murder conviction); (A)(5) (murdering two or more victims);

(A)(7) (murder committed while committing or attempting to commit kidnapping).

The ninth count, charging Weaver’s murder, alleged only three of these

specifications; it did not charge LaMar with the kidnapping specification.1

{¶18} At trial, LaMar testified on his own behalf and denied committing

any of the five murders. LaMar testified that he was in the recreation yard when

the riot began and went back inside L-6 briefly to get his personal belongings.

LaMar explained that while inside, he spoke briefly with Allen after Grinnell had

accused LaMar of trying to “get guys out the cells.” According to LaMar, Allen

did not believe Grinnell and allowed LaMar to leave the cellblock. LaMar testified

that he returned to the recreation yard and never went back into L-6 that day. He

told the jury that he stayed in the recreation yard until the early morning hours of

April 12, when corrections officers and state troopers surrounded the yard and

ordered the inmates into the gymnasium. LaMar’s alibi testimony was corroborated

1. The indictment did not include any counts relating to the assaults on Stockton and Walker.

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by four inmate witnesses who each testified to having seen and talked to LaMar in

the yard during the early stages of the riot.

{¶19} LaMar also testified to the events surrounding Weaver’s murder,

which took place after officers placed the two men, along with eight others, in a

holding cell in K-Block. LaMar stated that he and Scales argued with Bowling

about the distribution of food and admitted to punching Bowling in the face. He

denied, however, tying up other inmates or assaulting Weaver. According to

LaMar, Bowling tied up Childers and started punching Weaver after Weaver came

to Childers’s defense. LaMar testified that Bowling then grabbed Weaver around

the neck in a “half Nelson” until Weaver lost consciousness. Bowling then untied

Childers, who also choked Weaver until Weaver died. LaMar admitted lying to

investigators about the events leading to Weaver’s death, but said that he lied

because he didn’t “want nothing to do with it.”

{¶20} Two defense witnesses corroborated LaMar’s account of Weaver’s

murder. Inmate Cory Perkins, who was in an adjacent cell, testified that he heard

Bowling call Weaver a “snitch.” Perkins also testified that he heard someone else

in the cellblock suggest that Weaver be killed. William Washington, who was in

the K-Block cell with LaMar and Weaver, also corroborated LaMar’s story by

identifying Bowling and Childers as the inmates who killed Weaver. According to

Washington, LaMar did not touch Weaver, did not order anyone to hurt Weaver,

and did not say anything about Weaver. On cross-examination, however, the

prosecution impeached Washington with a prior statement in which he identified

LaMar as one of Weaver’s assailants.

{¶21} The jury returned guilty verdicts on all the charges and specifications

alleged in the indictment. Following the penalty-phase proceedings, the jury

recommended the death penalty for the murders of Depina, Vitale, Svette, and

Weaver. For Staiano’s murder, the jury found that LaMar should be sentenced to

life imprisonment with parole eligibility after thirty years. The trial court issued a

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sentencing opinion in which it agreed with the jury’s recommendation and

sentenced LaMar to death for the murders of Depina, Vitale, Svette, and Weaver.

LaMar appealed to the Fourth District Court of Appeals, asserting nineteen

assignments of error. The court of appeals overruled each of the assignments and

affirmed the convictions and death sentence. The cause is now before this court

upon an appeal as of right.

II. Settled Issues

{¶22} LaMar presents twenty propositions of law for our review. Although

R.C. 2929.05 grants a capital defendant an appeal of right to this court, we are not

required to discuss in opinion form each proposition raised in the appeal. State v.

Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099. We may therefore

summarily overrule those propositions of law that this court has previously resolved

and address only those issues that warrant discussion. Id. See, also, State v.

Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568.

{¶23} Accordingly, we summarily overrule LaMar’s eighteenth proposition

of law challenging the constitutionality of death-penalty proportionality review

under R.C. 2929.05. See, e.g., State v. Smith (1997), 80 Ohio St.3d 89, 118, 684

N.E.2d 668; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d

383, paragraph one of the syllabus. We also overrule LaMar’s twentieth

proposition of law, which challenges the constitutionality of Ohio’s death-penalty

statutory scheme on various grounds. We have considered all of these arguments

and summarily reject them. See, e.g., State v. Stallings (2000), 89 Ohio St.3d 280,

297, 731 N.E.2d 159; State v. Mills (1992), 62 Ohio St.3d 357, 371-372, 582 N.E.2d

972; State v. Seiber (1990), 56 Ohio St.3d 4, 15-16, 564 N.E.2d 408. In neither

proposition does LaMar offer any arguments that this court has not already rejected.

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III. Pretrial Issues

A. Failure to Disclose Exculpatory Evidence

{¶24} In his first proposition of law, LaMar asserts that the state failed to

disclose material evidence tending to exculpate him in the murders, thereby

denying him his constitutional right to a fair trial. See Brady v. Maryland (1963),

373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Prior to trial, LaMar’s counsel

asked the state to produce all evidence of an exculpatory nature, as required by

Crim.R. 16(B)(1)(f). The state’s response did not provide a complete list of inmate

statements, purportedly because of concerns about the safety of inmates who had

given statements to law enforcement about the events of the SOCF riot. Instead,

the state submitted to the trial court an eleven-page document containing summaries

of inmate interviews.

{¶25} At a pretrial hearing, the trial court read summaries of inmate

statements from the bench and, with a few exceptions, did not identify who made

them. The contents of the summaries varied widely, ranging from useless

information (e.g., “He was in a cell adjoining K-2-36 but gave no useful

information”) to pure speculation (e.g., “He was in an adjoining cell to K-2-36 and

heard a commotion and thought Weaver hung himself”) to statements with

exculpatory value (e.g., “he observed Eskridge kill Svette in L-corridor”; “[h]e was

in an adjoining cell * * * and identified Greg Curry telling Keith LaMar to kill

Weaver because he was a snitch”). Many of the statements, however, corroborated

LaMar’s participation in the killings, while other statements named other assailants

without eliminating LaMar as a participant.

{¶26} After reading all of the summaries, the trial court granted a

continuance to the defense and authorized funds for a second defense investigator

to conduct additional interviews of inmate witnesses. The trial court did not,

however, require the prosecution to provide the full statements (i.e., contents of the

statement with the name of the inmate who gave it) to the defense. Instead, the

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court ordered the prosecution to provide the defense with the names of forty-three

inmates who gave statements to law enforcement. Although the prosecution

complied with the trial court’s directive and provided a list of forty-three names, it

did not match the statements with the names supplied.

{¶27} Suppression by the prosecution of evidence that is favorable to the

accused and “material either to guilt or to punishment” is a violation of due process.

Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Evidence suppressed by the

prosecution is “material” within the meaning of Brady only if there exists a

“reasonable probability” that the result of the trial would have been different had

the evidence been disclosed to the defense. Kyles v. Whitley (1995), 514 U.S. 419,

433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490; see, also, United States v. Bagley

(1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. As the United States

Supreme Court has stressed, “the adjective [‘reasonable’] is important. The

question is not whether the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514

U.S. at 434, 115 S.Ct. 1555, 131 L.Ed.2d 490; see, also, Strickler v. Greene (1999),

527 U.S. 263, 289-290, 119 S.Ct. 1936, 144 L.Ed.2d 286.

{¶28} Assuming arguendo that the prosecution “suppressed” the evidence

LaMar complains of within the meaning of Brady,2 we find no due process

violation. On the record before us, we find no reasonable probability of a different

trial outcome had the defense received the full statements. Many of the statements

2. Because the defense knew before trial of the contents of inmate statements and the names of the

inmates who gave them, there is arguably no Brady violation as a matter of law. At least two federal

appellate courts have found Brady applicable only to the discovery after trial of information that

was known to the prosecution and unknown to the defense. United States v. Gonzales (C.A.8, 1996),

90 F.3d 1363, 1368; United States v. Soto-Alvarez (C.A.1, 1992), 958 F.2d 473, 477. See, also,

United States v. Clark (C.A.6, 1991), 928 F.2d 733, 738 (no Brady violation exists where a

defendant knows of essential facts permitting him to take advantage of exculpatory information or

where evidence is available from another source), citing United States v. Grossman (C.A. 2, 1988),

843 F.2d 78, 85, and United States v. Davis (C.A.11, 1986), 787 F.2d 1501, 1505.

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identified LaMar as a participant in the murders. And statements identifying other

inmates as participants did not exculpate LaMar because each victim had been

attacked by multiple assailants. Cf. State v. Waddy (1992), 63 Ohio St.3d 424, 433,

588 N.E.2d 819 (holding evidence not to be material within the meaning of Brady

when the evidence did not eliminate the defendant as the perpetrator). Finally, with

respect to murders in cellblock L-6, none of the statements assisted LaMar’s alibi

defense (i.e., that LaMar was in the recreation yard at the time of the killings). In

short, nothing in the contents of the statements “could reasonably be taken to put

the whole case in such a different light as to undermine confidence in the verdict.”

Kyles, 514 U.S. at 435, 115 S.Ct. 1555, 131 L.Ed.2d 490.

{¶29} As a separate Brady claim, LaMar argues that the trial court should

have found a Brady violation and granted his motion for a new trial after defense

counsel discovered that the prosecution had provided complete inmate

statements—the same material the defense had requested at the pretrial hearing in

LaMar’s case—in the criminal trials of two other SOCF inmates (Derek Cannon

and Rasheem Matthews). LaMar argues that the disclosure in these two noncapital

cases undercuts the prosecution’s proffered reason (i.e., inmate safety) for failing

to disclose the information in his case. As we stated above, however, the statements

were not material to LaMar’s case within the meaning of Brady. We therefore

reject this argument.

{¶30} In his final Brady claim, LaMar claims that he should have received

a new trial in light of evidence the defense discovered after trial. The evidence

consisted of (1) Ohio State Highway Patrol summaries of two statements given by

inmate Willie Kastner to investigators and (2) transcripts of interviews conducted

by law enforcement officers with inmates David Hackett, Tyronne Golphin, Gerald

Kelly, William Turner, and Daniel Davidson. These witnesses identified several

persons other than LaMar as being involved in the murders of Vitale, Staiano,

Depina, and Svette. LaMar further notes that the interviews with Hackett and

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Davidson suggest that Vitale and Staiano may not have been dead at the time their

assailants left L-6. Because the state failed to disclose these potentially exculpatory

statements, LaMar argues that there has been a Brady violation warranting a new

trial.

{¶31} We reject this Brady claim for reasons similar to the ones we stated

above. While these statements identified other inmates, none of them exonerated

LaMar. At best, these witnesses established that there were several persons who

joined in beating the L-6 victims to death. The state’s theory all along was that

LaMar was one of many assailants who participated in murdering the victims in L-

6. Therefore, the existence of this evidence does not undermine our confidence in

the trial outcome.

{¶32} Finding no Brady violation that would warrant reversal, we reject

LaMar’s first proposition of law.

B. Allegations of a Biased Judge

{¶33} The trial court’s treatment of the exculpatory evidence complained

of in the first proposition of law also forms the basis of LaMar’s second proposition

of law. Because of the trial judge’s actions, LaMar contends that he was deprived

of his constitutional right to a fair trial before an impartial judge.

{¶34} It is well settled that a criminal trial before a biased judge is

fundamentally unfair and denies a defendant due process of law. See Rose v. Clark

(1986), 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460; Tumey v. Ohio (1927),

273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749. We have described judicial bias as

“a hostile feeling or spirit of ill will or undue friendship or favoritism toward one

of the litigants or his attorney, with the formation of a fixed anticipatory judgment

on the part of the judge, as contradistinguished from an open state of mind which

will be governed by the law and the facts.” State ex rel. Pratt v. Weygandt (1956),

164 Ohio St. 463, 58 O.O. 315, 132 N.E.2d 191, paragraph four of the syllabus;

see, also, Cleveland Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191, 201, 754 N.E.2d

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235. LaMar argues that the trial judge exhibited bias by “actually aid[ing] the

prosecution in intermingling names, adding irrelevant inmate names and generally

obfuscating the information that appellant was clearly entitled to.” We do not

agree.

{¶35} We first note that LaMar did not raise the issue of judicial bias in his

appeal to the court of appeals. He has therefore forfeited this claim. State v.

Jalowiec (2001), 91 Ohio St.3d 220, 224, 744 N.E.2d 163. Moreover, LaMar failed

to avail himself of the procedures described in R.C. 2701.03, which allows a party

to file an affidavit of bias and prejudice with this court seeking disqualification of

a biased judge.

{¶36} Even if LaMar had raised this issue before the court of appeals, we

would find no merit to his contention. LaMar relies on a general characterization

of unfairness and bias by the trial court during the March 6, 1995 pretrial hearing

to support his claim, without referring to any specific evidence of bias. But viewing

the transcript as a whole, and taking all of the judge’s comments in their proper

context, we see nothing to suggest that the trial court harbored a hostile feeling of

ill will toward either LaMar or his attorneys during the course of the trial. We

accordingly reject the second proposition of law.

C. Pretrial Discovery

{¶37} As a branch of his fourth proposition of law (alleging prosecutorial

misconduct in various respects), LaMar argues that the prosecution improperly

withheld discovery before trial.3 Specifically, LaMar alleges that the prosecutor

(1) ignored the trial court’s order to provide transcripts of statements given by

inmate witnesses, (2) repeatedly refused the trial court’s orders to fully answer

defense interrogatories in support of the defense’s motion to dismiss on selective-

prosecution grounds, and (3) failed to disclose summaries of inmate statements on

3. We consider LaMar’s remaining arguments under the fourth proposition of law in Part VI, infra.

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grounds of “confidentiality” and inmate safety, only to turn them over in other

cases. We construe LaMar’s argument, which asserts many of the same claims

raised in the first proposition of law, as asserting violations of the discovery

provisions contained in Crim.R. 16.

{¶38} Violations of Crim.R. 16 by the prosecution may result in reversible

error only upon a showing that (1) the prosecution’s failure to disclose was a willful

violation of the rule, (2) foreknowledge of the information would have benefited

the accused in preparing a defense, and (3) the accused has suffered prejudice. State

v. Joseph (1995), 73 Ohio St.3d 450, 458, 653 N.E.2d 285. For the reasons we

stated in overruling the first proposition of law, LaMar cannot establish prejudice

because there was no reasonable probability of a different trial result even if the

prosecution had disclosed the inmate statements LaMar complains of. And as for

the prosecutor’s alleged failure to answer defense interrogatories relevant to

LaMar’s selective-prosecution claim, LaMar’s claim likewise fails. As we shall

explain infra in disposing of the seventh proposition of law, LaMar did not make a

prima facie showing of selective prosecution. Because he did not produce credible

evidence of selective prosecution, he was not entitled to discovery on the issue.

United States v. Armstrong (1996), 517 U.S. 456, 468-469, 116 S.Ct. 1480, 134

L.Ed.2d 687. We accordingly reject LaMar’s pretrial-discovery argument.

D. Limitations on Jury Voir Dire

{¶39} LaMar’s third proposition of law attacks the trial court’s actions

during jury selection. He argues that the trial court unreasonably and arbitrarily

prevented him from “inquiring into proper subjects of voir dire including factors

affecting credibility, the meaning of the presumption of innocence, defendant’s

right to remain silent, the burden of proof, and the juror’s ability to follow

instructions.” LaMar cites numerous instances from voir dire when the trial court

sustained prosecution objections to defense counsel’s questions relating to areas

such as (1) a potential juror’s methods of evaluating a witness’s credibility, (2)

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whether the juror could convict just because LaMar presented no evidence, and (3)

how a juror would feel if LaMar did not testify at trial. At one point, the trial court

fined one of LaMar’s attorneys $50 after the attorney, in apparent frustration,

complained (in the presence of the jury venire) that he was “not getting a fair trial

in this case” if he was not allowed to delve into certain areas with the potential

jurors during voir dire.4

{¶40} Crim.R. 24 and R.C. 2945.27 afford both prosecution and defense

counsel the opportunity to conduct reasonable voir dire of prospective jurors.

Nevertheless, the length and scope of voir dire fall within a trial court’s sound

discretion and vary depending on the circumstances of a given case. State v.

Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304. Accordingly, we will

not find prejudicial error in how the trial court qualified venirepersons “as fair and

impartial jurors” unless the appellant can show “a clear abuse of discretion.” State

v. Cornwell (1999), 86 Ohio St.3d 560, 565, 715 N.E.2d 1144; see, also, State v.

Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274. A trial court does not abuse

its discretion unless it acts arbitrarily, unreasonably, or unconscionably. State v.

Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144.

{¶41} We find no abuse of discretion warranting reversal in this case. The

voir dire limitations cited by LaMar paint an incomplete picture of how the trial

court conducted the jury-selection process. At one point, when defense counsel

expressed concerns that the trial court was limiting his ability to ask jurors “what

their opinion will be if [LaMar] does not take the stand,” the court agreed to allow

him to inquire into this area with appropriate questions phrased in terms of the

jurors’ ability to follow instructions. The trial court also reconsidered its position

on objections previously sustained and allowed the defense to “get back into that

4. The trial court later revoked this order, which it described as a contempt citation, and returned

the $50 to LaMar’s counsel.

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area [of credibility].” As a result, the defense was allowed to ask numerous

questions of prospective jurors about their methods of assessing credibility, how

they would feel if LaMar exercised his right to refuse to testify, and their views on

the concept of reasonable doubt. Thus, notwithstanding LaMar’s arguments to the

contrary, the record shows that defense counsel was allowed some latitude to

explore these areas. Viewed in its entirety, we find no undue restriction in the

manner the trial court conducted voir dire and therefore reject LaMar’s third

proposition of law.

E. Selective Prosecution

{¶42} In the seventh proposition of law, LaMar contends that he is the

victim of selective prosecution. LaMar, who is African-American, argues that the

trial court should have dismissed the indictment against him on grounds that the

state chose to prosecute him for capital offenses because of his race. Although the

state prosecuted numerous inmates for murders committed during the SOCF riot,

LaMar states that he was the only inmate charged with capital murder for killing

other inmates.

{¶43} The decision whether to prosecute a criminal offense is generally left

to the discretion of the prosecutor. United States v. Armstrong, 517 U.S. at 464,

116 S.Ct. 1480, 134 L.Ed.2d 687. That discretion is, however, subject to

constitutional equal-protection principles, which prohibit prosecutors from

selectively prosecuting individuals based on “ ‘an unjustifiable standard such as

race, religion, or other arbitrary classification.’ ” Id., quoting Oyler v. Boles (1962),

368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446. Although a selective-prosecution

claim is not a defense on the merits to the criminal charge itself, a defendant may

raise it as an “independent assertion that the prosecutor has brought the charge for

reasons forbidden by the Constitution.” State v. Getsy (1998), 84 Ohio St.3d 180,

203, 702 N.E.2d 866; see, also, Armstrong, 517 U.S. at 463, 116 S.Ct. 1480, 134

L.Ed.2d 687.

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{¶44} To support a claim of selective prosecution, “ ‘a defendant bears the

heavy burden of establishing, at least prima facie, (1) that, while others similarly

situated have not generally been proceeded against because of conduct of the type

forming the basis of the charge against him, he has been singled out for prosecution,

and (2) that the government’s discriminatory selection of him for prosecution has

been invidious or in bad faith, i.e., based upon such impermissible considerations

as race, religion, or the desire to prevent his exercise of constitutional rights.’ ”

State v. Flynt (1980), 63 Ohio St.2d 132, 134, 17 O.O.3d 81, 407 N.E.2d 15, quoting

United States v. Berrios (C.A.2, 1974), 501 F.2d 1207, 1211. In this case, LaMar

has failed to satisfy either prong.

{¶45} LaMar asserts that out of the more than twenty-five inmates who

were indicted for homicide offenses relating to the SOCF riot, he was the only one

charged with capital murder for “killing only inmates.” LaMar also states that four

other inmates, at least one of whom was white, were charged with noncapital

offenses for participating in the same murders for which LaMar was convicted.

Even accepting these assertions as true, LaMar fails to satisfy the first prong of the

Flynt analysis because he has not shown that the state has treated him differently

from other similarly situated individuals. The state built its case against LaMar on

the theory that he organized and led a small group of inmates on a murderous

rampage. The state presented considerable evidence that LaMar acted in a

leadership role and participated in all five murders by either beating his victims or

forcing other inmates to kill. Because of LaMar’s extensive involvement, we

cannot conclude that he was “similarly situated” with other inmates charged with

noncapital offenses.

{¶46} LaMar also fails to satisfy the second Flynt prong. There is no

evidence to suggest that the prosecution singled him out for death-penalty

prosecution because of his race. Just two years ago, in fact, this court affirmed the

convictions of a white inmate who received the death penalty for aggravated

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murders committed during the SOCF riot. See State v. Robb (2000), 88 Ohio St.3d

59, 723 N.E.2d 1019. Although LaMar emphasizes that Robb involved a white

inmate convicted of killing both an inmate and a corrections officer, we fail to see

how this distinction matters for purposes of a selective-prosecution analysis. And

even if it did, LaMar has done nothing more than make a bald assertion of differing

treatment motivated by race. Absent some demonstration of an invidious motive,

this court will not presume intentional or purposeful discrimination from a mere

showing of different treatment. State v. Freeman (1985), 20 Ohio St.3d 55, 58, 20

OBR 355, 485 N.E.2d 1043.

{¶47} Under this proposition of law, LaMar also argues that the trial court

erred when it denied his motion to dismiss the indictment on selective-prosecution

grounds without stating its essential factual findings, as required by former Crim.R.

12(E) (now Crim.R. 12[F]). There was no such error in this case, however, because

LaMar failed to request the findings he now claims were necessary. See State v.

Eley (1996), 77 Ohio St.3d 174, 179, 672 N.E.2d 640. By failing to invoke the rule,

LaMar has forfeited any error. Id. We reject LaMar’s seventh proposition of law.

F. Prejudicial Joinder

{¶48} In his eighth proposition of law, LaMar argues that the trial court

should have granted his pretrial motion to sever count nine of the indictment,

alleging aggravated-murder and death-penalty specifications for Weaver’s murder,

from the remaining eight counts. LaMar claims that the Weaver count should have

been tried separately from the other counts because the allegations relating to

Weaver’s murder “were quite different” from the allegations relating to the deaths

of the other four victims. LaMar further contends that he was unduly prejudiced

by the joinder of all nine counts because “trying these cases together gave the

benefit to the state of permitting the jury to infer from the evidence presented in the

deaths of the first four victims that Mr. LaMar was quite capable of directing the

death of Dennis Weaver two days later.”

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January Term, 2002

{¶49} “The law favors joining multiple offenses in a single trial under

Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’ ” State

v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. Crim.R. 8(A) also allows

joinder of two or more offenses that “are based on the same act or transaction, or

are based on two or more acts or transactions connected together or constituting

parts of a common scheme or plan, or are part of a course of criminal conduct.”

Notwithstanding the policy in favor of joinder, an accused may move to sever

counts of an indictment on the grounds that he or she is prejudiced by the joinder

of multiple offenses. See Crim.R. 14. An appellate court will reverse a trial court’s

decision to deny severance only if the trial court has abused its discretion. Lott, 51

Ohio St.3d at 163, 555 N.E.2d 293.

{¶50} The state may rebut a defendant’s claim of prejudicial joinder in two

ways. The first way is by satisfying the “other acts” test. Id. If in separate trials

the state could introduce evidence of the joined offenses as “other acts” under

Evid.R. 404(B), a defendant cannot claim prejudice from the joinder. Id. See, also,

State v. Coley (2001), 93 Ohio St.3d 253, 259-260, 754 N.E.2d 1129. The state

may also negate a claim of prejudice by satisfying the less stringent “joinder test,”

which requires a showing “that evidence of each crime joined at trial is simple and

direct.” Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293; see, also, State v. Torres

(1981), 66 Ohio St.2d 340, 344, 20 O.O.3d 313, 421 N.E.2d 1288.

{¶51} The trial court did not abuse its discretion by denying severance in

this case because the state satisfied both tests. Even if the state had tried the Weaver

count separately from the others, the evidence of LaMar’s participation in the L-6

murders would have been admissible under Evid.R. 404(B). The rule allows the

admission of other-acts evidence for purposes other than proving that the accused

acted in conformity with a particular character. In this case, count nine of the

indictment contained an R.C. 2929.04(A)(5) specification alleging that LaMar had

murdered Weaver as part of a “course of conduct” that involved the “purposeful

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killing of or attempt to kill” two or more persons. Even if this count had been tried

separately, the state would have had to present some evidence of the L-6 murders

in order to prove this specification. Thus, there would have been a valid

noncharacter purpose for admitting evidence of the other murders. Cf. State v.

Wilkinson (1980), 64 Ohio St.2d 308, 317, 18 O.O.3d 482, 415 N.E.2d 261 (noting

the admissibility of other-crimes evidence when “ ‘ “they are so blended or

connected with the one on trial as that proof of one * * * tends logically to prove

any element of the crime charged,” ’ ” quoting United States v. Turner [C.A.7,

1970], 423 F.2d 481, 483-484, and United States v. Wall [C.A.7, 1955], 225 F.2d

905, 907).

{¶52} Even if we were to hold that evidence of the L-6 murders would not

have been admissible “other acts” in a separate trial for Weaver’s murder, we are

satisfied that the evidence for Weaver’s murder was sufficiently “simple and direct”

to negate LaMar’s claims of prejudicial joinder. As LaMar’s brief acknowledges,

the Weaver murder occurred two days after the L-6 murders in a different cellblock

and was accomplished by strangulation rather than bludgeoning. Accordingly, it is

highly unlikely that the jury was confused as to which evidence tended to show that

LaMar killed Weaver and which tended to show that he killed the L-6 victims. See,

e.g., Coley, 93 Ohio St.3d at 260, 754 N.E.2d 1129.

{¶53} The eighth proposition of law is overruled.

IV. Trial Phase Issues

A. Gruesome Photographs

{¶54} In the fifth proposition of law, LaMar contends that the trial court

prejudiced his defense by allowing the prosecution to admit “gruesome and

misleading photos” into evidence. In particular, LaMar challenges the admission

of Svette’s postmortem photographs. LaMar contends that Svette’s photographs

were particularly prejudicial in light of evidence that (1) Svette had multiple

assailants apart from LaMar’s group and (2) the photos did not depict how Svette

20

January Term, 2002

looked after the death squad left his cell. LaMar further argues that the prejudicial

effect of all the admitted photographs was exacerbated by the prosecution’s use of

them during closing arguments.

{¶55} “Properly authenticated photographs, even if gruesome, are

admissible in a capital prosecution if relevant and of probative value in assisting

the trier of fact * * * as long as the danger of material prejudice to a defendant is

outweighed by their probative value and the photographs are not repetitive or

cumulative in number.” State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379,

473 N.E.2d 768, paragraph seven of the syllabus. We review a trial court’s decision

to admit photographs under an abuse-of-discretion standard. State v. Morales

(1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267. We will not disturb a trial court’s

balancing of the probative value against the prejudicial effect unless the trial court

has “ ‘clearly abused its discretion and the defendant has been materially prejudiced

thereby.’ ” State v. Slagle (1992), 65 Ohio St.3d 597, 602, 605 N.E.2d 916, quoting

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

see, also, State v. Phillips (1995), 74 Ohio St.3d 72, 78, 656 N.E.2d 643.

{¶56} We agree with LaMar that the two Svette photographs he challenges

here—Exhibits 20H and 20K—were decidedly gruesome. Each depicted Svette’s

head split open at the crown, with Exhibit 20K showing a portion of Svette’s

bloodied brain. In addition, Exhibit 20H offered a frontal view of Svette’s head,

allowing jurors to see that Svette’s face was also beaten badly. Notwithstanding

the nature of the photographs, however, we cannot say that the trial court erred in

admitting them. Both photographs supported the forensic pathologist’s testimony

that Svette had sustained four major blows to the head and that any of the four was

sufficient to cause death. Even though there was testimony from an inmate witness

that Svette’s head “wasn’t that far open” when LaMar had finished beating him, the

court was well within its discretion to admit the photos and afford the jury an

opportunity to see the effects of all of the blows to Svette’s head, including any

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inflicted by LaMar. Inasmuch as LaMar inflicted at least one of the major blows

that could have been sufficient to cause Svette’s death, the photographs helped

establish LaMar’s intent to kill by graphically portraying the force with which

Svette was beaten. See State v. Tibbetts (2001), 92 Ohio St.3d 146, 156, 749 N.E.2d

226.

{¶57} LaMar also complains about the trial court’s admission of mugshot-

style photographs showing Svette, Staiano, Depina, Vitale, and Weaver while all

were still alive. We reject LaMar’s arguments as to these photos. Pre-death

photographs are relevant and admissible for purposes of identifying the victims.

See State v. Davie (1997), 80 Ohio St.3d 311, 325, 686 N.E.2d 245; State v. Roe

(1989), 41 Ohio St.3d 18, 22-23, 535 N.E.2d 1351. LaMar’s fifth proposition of

law is overruled.

B. Hearsay Testimony

{¶58} LaMar’s sixth proposition of law attacks the trial court’s admission

of “highly prejudicial hearsay evidence.” Inmate Robert Bass, who witnessed the

actions of LaMar’s death squad at L-6 on the day of the SOCF riot, testified that he

heard Allen tell LaMar, “Get your boys together and come on. Come with me.”

The trial court overruled defense objections to this testimony.

{¶59} Out-of-court statements offered to prove the truth of the matter

asserted within them are generally inadmissible as hearsay. Evid.R. 801 and 802.

If a statement is not offered for the truth of the matter asserted, however, it is not

prohibited by the hearsay rule and will be admissible, subject to the standards

governing relevancy and undue prejudice. State v. Maurer, 15 Ohio St.3d at 262-

263, 15 OBR 379, 473 N.E.2d 768. Accordingly, “testimony which explains the

actions of a witness to whom a statement was directed, such as to explain the

witness’ activities, is not hearsay.” Id. at 262, 15 OBR 379, 473 N.E.2d 768.

{¶60} In this case, the trial court properly overruled LaMar’s objection

because Allen’s statement was not offered for its truth. Rather, the prosecution

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January Term, 2002

offered it to show that LaMar was the target of Allen’s command. Allen’s comment

was therefore admissible as a nonhearsay statement showing that LaMar heard

Allen’s instruction and acted upon it.

{¶61} LaMar’s counsel also objected to testimony by Bass about a

statement made by Cannon. Bass testified that Cannon asked Bass whether he had

seen LaMar before the group had embarked on its plan to kill snitches in L-6. The

trial court properly overruled the hearsay objection because Cannon’s question was

not a “statement” within the meaning of the hearsay rule. Evid.R. 801(A) defines

a “statement,” for hearsay purposes, as “(1) an oral or written assertion or (2)

nonverbal conduct of a person, if it is intended by him as an assertion.” (Emphasis

added.) “An ‘assertion’ for hearsay purposes ‘simply means to say that something

is so, e.g., that an event happened or that a condition existed.’ ” (Emphasis sic.)

State v. Carter (1995), 72 Ohio St.3d 545, 549, 651 N.E.2d 965, quoting 2

McCormick on Evidence (4th Ed.1992) 98, Section 246. Inasmuch as Cannon’s

question asserted nothing “because a true question or inquiry is by its nature

incapable of being proved either true or false,” it cannot be hearsay within the

meaning of Evid.R. 801. Id.

{¶62} We accordingly overrule the sixth proposition of law.

C. Sufficiency of Evidence

{¶63} In his ninth, tenth, and eleventh propositions of law, LaMar argues

that the evidence was insufficient to support several of his convictions. He

therefore argues that the trial court should have granted his Crim.R. 29 motions for

acquittal with respect to Svette’s murder, the course-of-conduct specification

attached to Weaver’s murder, and the kidnapping specification attached to the

murders of Depina, Vitale, Staiano, and Svette.

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

conviction, “[t]he relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the

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essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; see,

also, Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.

When conducting this review, we do not weigh the evidence; our inquiry is limited

to whether reasonable minds could reach the conclusion reached by the trier of fact.

See Tibbetts, 92 Ohio St.3d at 162, 749 N.E.2d 226. Issues concerning the weight

given to the evidence and the credibility of witnesses are primarily for the trier of

fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212,

paragraph one of the syllabus.

1. Aggravated Murder of Svette

{¶65} In connection with Svette’s death, LaMar was convicted of

aggravated murder under R.C. 2903.01(B), which at the time of the SOCF riot

provided:

{¶66} “No person shall purposely cause the death of another while

committing or attempting to commit, or while fleeing immediately after committing

or attempting to commit kidnapping * * *.” 139 Ohio Laws, Part I, 1, 3.

{¶67} LaMar insists that the state did not present sufficient evidence

showing that he caused Svette’s death. He points to testimony showing that others

beat Svette and that Svette remained alive after LaMar and his group allegedly left

L-6 after their rampage. LaMar also emphasizes testimony attesting to the fact that

Svette’s postmortem photographs did not accurately depict how Svette looked after

LaMar and his group beat him. Because of all these factors, LaMar contends that

there is insufficient evidence to support a conclusion that he “caused the death of

William Svette.” At best, he contends, there was sufficient evidence only of

attempted murder. We reject LaMar’s argument.

{¶68} At least two witnesses testified that LaMar struck Svette’s head

multiple times with either a shovel or baseball bat. One of the witnesses added that

LaMar even went back to Svette’s cell to beat him a second time after noticing that

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January Term, 2002

Svette was still alive. Furthermore, the forensic pathologist who testified for the

state opined that Svette sustained four major blows to his head with a heavy object

and that any one of those would have independently killed Svette. The jury was

well within its province to infer that LaMar had struck one of those blows.

{¶69} The fact that others assaulted Svette and perhaps hastened his death

does not undermine the sufficiency of the evidence to convict LaMar. Despite the

actions of inmates Girdy and Frakes, who, according to witness testimony, finished

Svette off, the evidence at trial supports an inference that LaMar’s actions bore a

causal connection to Svette’s death. An offender who has inflicted injuries capable

of causing death cannot escape culpability for homicide simply because intervening

assailants have inflicted injuries that also contributed to the victim’s death. See

State v. Keene (1998), 81 Ohio St.3d 646, 655, 693 N.E.2d 246; see, also, People

v. Bailey (1996), 451 Mich. 657, 676-678, 549 N.W.2d 325; Holsemback v. State

(Ala.Crim.App.1983), 443 So.2d 1371, 1381-1382. Because sufficient evidence

supports the conclusion that LaMar caused Svette’s death, we overrule the ninth

proposition of law.

2. Course-of-Conduct Specification for Weaver’s Murder

{¶70} With respect to Weaver’s murder, LaMar argues that the evidence is

insufficient to support his conviction for one of the capital specifications.

Specifically, LaMar argues that the state failed to present sufficient evidence that

Weaver’s murder “was part of a course of conduct involving the purposeful killing

of or attempt to kill two or more persons.” R.C. 2929.04(A)(5). Even assuming

that he participated in the four murders committed in L-6, LaMar urges that “there

is no evidence that the Weaver killing was related” to them because Weaver’s

murder involved “a different scheme and a different mode of operation” and took

place at a different time. We are not persuaded.

{¶71} The “course of conduct” specification applies to multiple murders

that an offender commits as part of a continuing course of criminal conduct, even

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if the offender does not necessarily commit them as part of the same transaction.

See State v. Benner (1988), 40 Ohio St.3d 301, 304-305, 533 N.E.2d 701. In this

case, a reasonable jury could have found that the circumstances surrounding the

Weaver murder were intertwined with the four murders in L-6 that took place two

days earlier. The state presented testimony that LaMar and his group murdered the

L-6 victims and Weaver as part of a concerted effort to kill “snitches” at SOCF,

indicating a common motive for all of the killings. And even though the Weaver

murder happened at a different time than the other four murders, that fact does not

preclude a finding of sufficient evidence to support a conviction for the course-of-

conduct specification. Conduct taking place over several days may satisfy the R.C.

2929.04(A)(5) specification so long as the offender’s actions were part of a

continuing course of criminal conduct. See, e.g., State v. Dunlap (1995), 73 Ohio

St.3d 308, 316, 652 N.E.2d 988 (two murders, ten days apart, committed in two

states); State v. Fautenberry (1995), 72 Ohio St.3d 435, 444, 650 N.E.2d 878 (five

murders committed in four states during a five-month period). The tenth

proposition of law is overruled.

3. Kidnapping Specifications

{¶72} With respect to four of the victims—Depina, Vitale, Staiano, and

Svette—the jury found LaMar guilty of the death-penalty specification alleging that

he committed the murders while “committing, attempting to commit, or fleeing

immediately after committing or attempting to commit kidnapping.” R.C.

2929.04(A)(7). LaMar contends that there was insufficient evidence of kidnapping

to support a conviction for this specification.

{¶73} The trial court instructed the jury on the definition of kidnapping set

forth in R.C. 2905.01(A)(3), which states:

{¶74} “No person, by force, threat, or deception * * * shall remove another

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

person, for any of the following purposes:

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January Term, 2002

{¶75} “* * *

{¶76} “(3) To terrorize, or to inflict serious physical harm on the victim or

another.”

{¶77} In State v. Maurer, 15 Ohio St.3d 239, 242-243, 15 OBR 379, 473

N.E.2d 768, this court considered a constitutional challenge to the validity of the

R.C. 2929.04(A)(7) specification. The defendant argued that “in virtually every

aggravated murder the victim will be restrained from liberty for the purpose of

terrorizing or the infliction of serious physical harm” and that the specification

therefore violated the constitutional requirement that aggravating circumstances

adequately distinguish between offenses that are death-eligible and those that are

not. See, generally, Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64

L.Ed.2d 398. This court rejected the argument by interpreting the R.C.

2929.04(A)(7) specification to require proof of something more than a restraint or

movement incidental to the commission of a murder. That is, the court held that

R.C. 2929.04(A)(7) requires “prolonged restraint, secretive confinement, or

significant movement apart from that involved in the underlying crime in order to

justify the application of the aggravating circumstance of kidnapping.” Maurer, 15

Ohio St.3d at 243, 15 OBR 379, 473 N.E.2d 768; see, also, State v. Jenkins (1984),

15 Ohio St.3d 164, 197-198, 15 OBR 311, 473 N.E.2d 264; State v. Logan (1979),

60 Ohio St.2d 126, 135, 14 O.O.3d 373, 397 N.E.2d 1345.

{¶78} LaMar argues that there was not enough evidence of either prolonged

restraint, secretive confinement, or significant movement to sustain a conviction on

the kidnapping specification. For example, he argues, the evidence showed that

Depina and Vitale were beaten inside their respective cells and in the range

immediately in front of the cells. As to the Staiano murder, LaMar points to

evidence that Staiano tripped and fell as he tried to escape his cell, after which

Taylor attacked him. And with respect to the Svette murder, LaMar argues that

there was no evidence suggesting that LaMar restrained Svette or removed him

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from his cell. Accordingly, LaMar contends that any restraint or movement was

merely incidental to the beatings, distinguishing this case from others in which we

have upheld convictions for the R.C. 2929.04(A)(7) specification.

{¶79} If our focus were confined solely to the circumstances immediately

preceding the murder of each victim, LaMar would have a substantial argument

that any movement or restraint associated with any of them was incidental, at best,

to the vicious assaults that caused their deaths. But beyond the evidence of

movement incidental to the killings themselves, there was evidence that rioting

inmates confined their victims in various cells and would not allow them to escape

to the recreation yard with the nonrioting inmates. There was evidence that Allen,

while each victim was locked in a cell, told LaMar and his group to “kill the

snitches.” Thus, a reasonable jury could find that the inmates in control of L-6

confined suspected snitches for the purpose of terrorizing or inflicting serious

physical harm. Cf. State v. Simko (1994), 71 Ohio St.3d 483, 488-489, 644 N.E.2d

345 (finding sufficient evidence to support kidnapping specification when

defendant restrained and terrorized victim for approximately a half-hour before

murdering her as she tried to escape); State v. Seiber, 56 Ohio St.3d at 14-15, 564

N.E.2d 408 (kidnapping specification supported by evidence that, prior to shooting

the victim, the defendant restrained bar patrons by ordering them on the floor and

blocking exits). In turn, a reasonable jury could conclude that LaMar assumed

control over the victims’ confinement after Allen relayed the order for LaMar to

“kill the snitches.” Indeed, there was evidence that LaMar ordered Grinnell to open

each victim’s cell, supporting the inference that LaMar had some measure of

control over the physical location and movement of the victims. Construing the

evidence most strongly in the prosecution’s favor, as we are required to do in a

sufficiency-of-the-evidence inquiry, there was sufficient evidence that LaMar was

at least an aider and abettor in the victims’ confinement and thus capable of being

“prosecuted and punished as if he were a principal offender” in the kidnappings.

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January Term, 2002

R.C. 2923.03(F); see, also, State v. Bies (1996), 74 Ohio St.3d 320, 325, 658 N.E.2d

754. We therefore conclude that the trial court properly overruled LaMar’s Crim.R.

29 motion for acquittal on the kidnapping specifications.

{¶80} The eleventh proposition of law is overruled.

D. Surprise Testimony

{¶81} LaMar’s thirteenth proposition of law asserts that the defense was

unfairly prejudiced by “surprise” testimony on cross-examination by William

“Geno” Washington, a defense witness. Washington was one of the ten inmates,

including LaMar and Weaver, placed in the K-Block cell after corrections officers

cleared the recreation yard on the morning after the riot began. On direct

examination by defense counsel, Washington testified that Bowling and Childers

had killed Weaver. He also testified that LaMar did not say anything about Weaver,

did not order anyone to kill Weaver, and did not touch Weaver. On cross-

examination, however, the state impeached Washington with the contents of an

interview during which he told an investigator, among other things, that LaMar was

one of the persons responsible for Weaver’s murder. Washington repeatedly denied

any memory of making the statement. LaMar argues that the defense was

“completely surprised” by Washington’s prior statement and that a new trial was

therefore warranted.

{¶82} LaMar’s counsel, citing Washington’s testimony, filed a post-trial

motion for new trial under Crim.R. 33(A)(3). This rule allows for a new trial on

the grounds of “surprise which ordinary prudence could not have guarded against.”

To warrant a new trial, the surprise of which the defendant complains must have

materially affected the defendant’s substantial rights. A reviewing court will not

disturb a trial court’s decision granting or denying a Crim.R. 33 motion for new

trial absent an abuse of discretion. See State v. Schiebel (1990), 55 Ohio St.3d 71,

76, 564 N.E.2d 54.

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{¶83} LaMar has not met his burden of establishing an entitlement to a new

trial under Crim.R. 33(A)(3). Although LaMar’s counsel claimed surprise in his

motion for new trial, he did not raise this issue during Washington’s testimony. A

trial court acts well within its discretion to deny a post-trial Crim.R. 33(A)(3)

motion when defense counsel fails to raise the issue of surprise during trial. We

accordingly reject the thirteenth proposition.

E. Newly Discovered Evidence

{¶84} In the twelfth proposition of law, LaMar claims that he was entitled

to a new trial on the grounds of newly discovered evidence. Following trial,

LaMar’s attorneys moved for a new trial under Crim.R. 33(A)(6) after two inmates,

James Were and Derek Cannon, had contacted them with information about

LaMar’s case. Were signed an affidavit stating that he was present in L-6 at the

time of the murders and that LaMar did not participate in them. Were also stated

that other inmates had been “displeased” with LaMar for refusing to participate in

the riot and “considered him a traitor and coward.”5 Cannon provided LaMar’s

attorneys with two letters that inmate Anthony Walker had written to Rasheem

Matthews, an alleged member of the group that attacked the L-6 victims. In one

letter, Walker wrote that “LaMar’s trail [sic] starts on Monday so try and stay up

on it althrough [sic] you no [sic] he’s hit anyway.” In the second letter, Walker told

Cannon, “I came from court and Sweat is hit.” (“Sweat” was LaMar’s nickname.)

LaMar argues that the new evidence from Were and Cannon contradicted several

of the state’s witnesses, including Walker himself, and therefore raised a genuine

issue concerning his guilt.

{¶85} The decision whether to grant a new trial on grounds of newly

discovered evidence falls within the sound discretion of the trial court. State v.

5. Were was himself found guilty of capital murder for his actions during the SOCF riot. See State

v. Were (Sept. 30, 1998), Hamilton App. No. C-950908, 1998 WL 682146, reversed (2002), 94 Ohio

St.3d 173, 761 N.E.2d 591.

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January Term, 2002

Hawkins (1993), 66 Ohio St.3d 339, 350, 612 N.E.2d 1227. To warrant the granting

of a new trial, the new evidence must, at the very least, disclose “ ‘a strong

probability that it will change the result if a new trial is granted,’ ” and must not be

“ ‘merely cumulative to former evidence.’ ” Id., quoting State v. Petro (1947), 148

Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, syllabus. We find no abuse of discretion

in this case because the newly discovered evidence forming the basis of LaMar’s

motion failed to satisfy these standards.

{¶86} Were’s information was largely cumulative of other defense

witnesses who likewise testified that LaMar was not present in L-6 at the time of

the murders. And his affidavit testimony about other inmates thinking LaMar was

a “traitor or coward” was speculative. As such, Were’s testimony on this point was

of questionable inadmissibility and therefore could not have provided a “strong

probability” of an acquittal. Similarly, we see nothing in the Walker letters that

would have disclosed a strong probability of a different trial result. Contrary to

LaMar’s arguments, the Walker comment about LaMar being “hit” did not suggest

that there was perjured testimony at LaMar’s trial. Walker’s comment is

reasonably—and perhaps better—construed as a statement of Walker’s belief that

the state had a strong case against LaMar. The trial court therefore did not abuse

its discretion in finding the proffered newly discovered evidence insufficient to

warrant a new trial.

{¶87} We also find unpersuasive LaMar’s argument that the new evidence

would have created “residual doubt” about his guilt, thus providing a mitigating

factor that would have led the jury to choose a life sentence. Residual doubt is not

an acceptable mitigating factor in determining the appropriate sentence in a capital

case. State v. McGuire (1997), 80 Ohio St.3d 390, 403, 686 N.E.2d 1112. The

twelfth proposition of law is overruled.

V. Penalty-Phase Issues

A. Admission of Trial Phase Evidence

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{¶88} In the fourteenth proposition of law, LaMar claims prejudicial error

in the trial court’s admission in the penalty phase of “all evidence submitted by the

state in the guilt-innocence phase.” In LaMar’s view, some of the evidence was

entirely irrelevant to the issue of whether the aggravating circumstances

outweighed mitigating circumstances beyond a reasonable doubt. The defense

specifically objected to the readmission of the trial exhibits, including all

photographs of the victims, demonstrative evidence of the weapons used, and a

walker that belonged to Svette.

{¶89} In State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253,

syllabus, this court recited the broad categories of evidence that the state may

introduce during the penalty phase of a capital prosecution under R.C.

2929.03(D)(1) and (2). We held that, subject to applicable Evidence Rules, the

state may introduce (1) any evidence raised at trial that is relevant to the aggravating

circumstances specified in the indictment of which the defendant was found guilty,

(2) any other testimony or evidence relevant to the nature and circumstances of

those aggravating circumstances, (3) evidence rebutting the existence of any

statutorily defined or other mitigating factors first asserted by the defendant, (4) the

presentence investigation report, and (5) the mental examination report. Id.

{¶90} Under this standard, we find no error in the trial court’s admission of

the photographs and demonstrative exhibits depicting the weapons used. These

items bore some relevance to the nature and circumstances surrounding the R.C.

2929.04(A)(5) course-of-conduct specification of which the jury found LaMar

guilty. As for the admission of Svette’s walker, we find merit in LaMar’s

contention that this item of evidence has only a tenuous connection, if that, to any

of the aggravating circumstances for which LaMar was convicted. We do not,

however, find that the admission of this item warrants reversal. The record of the

sentencing hearing reveals no emphasis whatsoever on the walker or the fact that

Svette used one. Thus, based on the record before us, we deem any error in

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admitting this item of evidence to be harmless. And in any event, this court’s

independent reassessment can eliminate any possible error in the court’s admission

of this evidence. State v. Williams (1996), 74 Ohio St.3d 569, 578, 660 N.E.2d 724.

We accordingly overrule LaMar’s fourteenth proposition of law.

B. Improper Penalty-Phase Argument

{¶91} LaMar’s fifteenth proposition of law alleges that the prosecutor

engaged in improper argument during the sentencing proceeding. LaMar argues

that the prosecutor improperly argued that the jury should evaluate the mitigating

factors in light of LaMar’s culpability for the murders. For example, LaMar cites

a portion of the closing argument in which the prosecutor rhetorically asked the

jury, “[A]ll of the testimony that you have heard over the last two days, number

one, is it mitigating? Does that lessen what he did? Does that explain what he did

or justify what he did?” And even though the trial court sustained a defense

objection to these remarks, LaMar notes that the prosecutor later continued along

that same line of argument, telling the jury that “[n]othing was presented that

mitigated what he did, and any mitigation is greatly outweighed and absolutely

eclipsed by the aggravating circumstances.” The trial court overruled LaMar’s

motion for mistrial following this comment.

{¶92} As LaMar correctly notes, “mitigating factors under R.C. 2929.04(B)

are not related to a defendant’s culpability but, rather, are those factors that are

relevant to the issue of whether an offender convicted under R.C. 2903.01 should

be sentenced to death.” State v. Holloway (1988), 38 Ohio St.3d 239, 242, 527

N.E.2d 831. Thus, we have held that it is improper for prosecutors to make any

comment to the jury during the penalty phase that the nature and circumstances of

the murder are “aggravating circumstances.” State v. Wogenstahl (1996), 75 Ohio

St.3d 344, 662 N.E.2d 311, paragraph two of the syllabus. Nevertheless, LaMar

overstates the significance of the prosecutor’s comments in this case. For one thing,

the trial court sustained a defense objection to the prosecutor’s first foray into

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questionable argument by instructing the jury to disregard the remark about whether

the mitigating factors “justify” what LaMar did. We will ordinarily presume that

the jury followed such an instruction by the court. See State v. Loza (1994), 71

Ohio St.3d 61, 75, 641 N.E.2d 1082. For another thing, the second remark by the

prosecutor complained of by LaMar did not warrant a mistrial. The trial court

ultimately gave correct penalty-phase instructions to the jury, including an

instruction that the mitigating factors are “relevant to the issue of whether the

Defendant should be sentenced to death.” Thus, despite whatever complaints

LaMar raises about the prosecutor’s argument, the trial court cured any defect by

essentially instructing that the mitigating factors are relevant to the question of

whether LaMar should be sentenced to death and not simply to the question of

whether LaMar’s culpability is somehow reduced. We can therefore find no abuse

of discretion in the trial court’s decision to deny LaMar’s motion for mistrial. See

State v. Garner (1995), 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (noting that the

decision whether to grant a mistrial lies within trial court’s sound discretion). And

in any event, this court’s independent sentence reassessment eliminates the effect

of any error in the prosecutor’s argument in this particular case. See State v. Wilson

(1996), 74 Ohio St.3d 381, 398, 659 N.E.2d 292. The fifteenth proposition of law

is overruled.

C. Penalty-Phase Jury Instructions

{¶93} In his sixteenth proposition, LaMar takes issue with the jury

instructions used by the trial court at the sentencing phase. He asserts that the trial

court’s instructions prejudiced him by (1) failing to inform the jury that a “solitary

juror could prevent the death sentence” and (2) placing undue emphasis on jury

unanimity in returning a penalty verdict. LaMar’s claims of error are without merit.

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

court held that it is error for a trial court to require a jury to unanimously reject a

death verdict before considering a sentence of life imprisonment. Id. at 160, 661

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January Term, 2002

N.E.2d 1030. This court reasoned that “R.C. 2929.03(D)(2) contains no limiting

language as to when a jury may contemplate a life sentence.” Id. Thus, when the

jury cannot unanimously agree on death as the appropriate punishment, it can

properly consider alternative sentences. Accordingly, Brooks counseled courts in

capital cases to instruct the jury that “a solitary juror may prevent a death penalty

recommendation by finding that the aggravating circumstances in the case do not

outweigh the mitigating factors.” Id. at 162, 661 N.E.2d 1030.

{¶95} In this case, the trial court instructed the jury as follows:

{¶96} “You shall make a finding for the sentence of death if you

unanimously, all 12, find by proof beyond a reasonable doubt that the aggravating

circumstances outweigh the mitigating factors as to each given death.

{¶97} “If you do not so find, you shall unanimously, and that’s all 12, make

a finding for either a life sentence with parole eligibility after serving 20 full years

of imprisonment or a life sentence with parole eligibility after serving 30 full years

of imprisonment.

{¶98} “Verdict forms with these three options will be furnished to you for

each decedent. You will consider each death and the aggravating circumstances as

to that death separately. The fact that you * * * unanimously agree on a sentence

as to one death does not require you to impose the same sentence for any other

death. You must unanimously decide the sentence for the death of each decedent

applying the instructions I have just given you and uninfluenced by your verdict as

to any other death.

{¶99} “* * *

{¶100} “With regard to the verdict that you render, all 12 of you, each and

every one of you must sign in ink on the lines provided for your signature, the

foreperson signing on the 12th line under which is printed the phrase foreperson.

{¶101} “Your verdict must be unanimous.”

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{¶102} We reject LaMar’s contention that Brooks requires reversal in this

case. The above instruction was virtually identical to the proposed penalty-phase

instructions that LaMar’s counsel submitted to the trial court. LaMar thus cannot

complain of any alleged error in the instructions. Under the invited-error doctrine,

a party cannot take advantage of an error that the party invited or induced the court

to commit. State v. Bey (1999), 85 Ohio St.3d 487, 492-493, 709 N.E.2d 484.

{¶103} Even if the invited-error doctrine were not applicable, we would still

reject LaMar’s argument. LaMar’s counsel did not object to the penalty-phase

instructions and thereby forfeited all but plain error. See State v. Lundgren, 73

Ohio St.3d at 493, 653 N.E.2d 304. Although this court had not yet decided Brooks

at the time of LaMar’s trial, that fact did not obviate defense counsel’s

responsibility to object to instructions that were potentially erroneous. See State v.

Madrigal (2000), 87 Ohio St.3d 378, 394, 721 N.E.2d 52 (collecting cases in which

this court applied a plain-error analysis to alleged Brooks errors in cases tried before

Brooks was decided). There was no plain error in this case.

{¶104} The instruction given by the trial court is vastly different from the

one this court rejected in Brooks. The trial court never instructed the jury that it

had to unanimously reject the death penalty before it could consider sentencing

LaMar to life imprisonment. Accordingly, nothing in the instruction prevented the

jury from considering a life sentence even if it had not unanimously rejected the

death penalty. Bey, 85 Ohio St.3d at 498, 709 N.E.2d 484; see, also, State v.

Stallings, 89 Ohio St.3d at 294, 731 N.E.2d 159 (upholding similar instruction

against Brooks challenge); State v. Smith (2000), 87 Ohio St.3d 424, 438, 721

N.E.2d 93 (same). We reject the sixteenth proposition of law.

D. Instructing Jury that Verdict was a Recommendation

{¶105} In the nineteenth proposition of law, LaMar argues that the trial

court committed constitutional error by repeatedly informing the jury that its

sentencing decision would be only a recommendation. Specifically, LaMar takes

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issue with how the trial court explained the penalty phase to prospective jurors

before voir dire:

{¶106} “[D]epending on your decision in the guilt or innocent [sic]

proceeding, you might then be involved in a second proceeding. If this second

proceeding takes place, the jury will have to make a recommendation of sentence

for the aggravated murder charges. One of the recommendations could be the death

penalty.

{¶107} “If you are selected and if you’re required to make a

recommendation of sentence and if that recommendation is death, then before that

sentence may be ordered the Court must independently determine if the

recommendation is supported with proof of evidence beyond a reasonable doubt.”

{¶108} The trial court used similar language with other panels of

prospective jurors. LaMar claims further prejudice from the fact that the jury

verdict forms also used the term “recommend,” thereby solidifying the concept that

the jury was not ultimately responsible for a death verdict.

{¶109} The United States Supreme Court has held that “it is constitutionally

impermissible to rest a death sentence on a determination made by a sentencer who

has been led to believe that the responsibility for determining the appropriateness

of the defendant’s death rests elsewhere.” Caldwell v. Mississippi (1985), 472 U.S.

320, 328-329, 105 S.Ct. 2633, 86 L.Ed.2d 231. Accordingly, the Caldwell court

reversed a defendant’s death sentence because the prosecutor’s argument had left

jurors with a mistaken impression that Mississippi’s appellate courts—and not the

jury itself—would be the ones actually responsible for imposing a death sentence.

See id. at 331-333, 105 S.Ct. 2633, 86 L.Ed.2d 231. To establish a Caldwell

violation, however, a defendant “ ‘necessarily must show that the remarks to the

jury improperly described the role assigned to the jury by local law.’ ” Buell v.

Mitchell (C.A.6, 2001), 274 F.3d 337, 353, quoting Dugger v. Adams (1989), 489

U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435. LaMar cannot show that in this

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case. There is no Caldwell error in a case where, as here, a trial court’s statements

accurately reflect Ohio law and do not induce reliance on the appellate review

process. State v. Durr (1991), 58 Ohio St.3d 86, 93, 568 N.E.2d 674; see, also,

State v. Davie, 80 Ohio St.3d at 326-327, 686 N.E.2d 245.

{¶110} Moreover, the penalty-phase instructions belie any claim that the

jury misapprehended its role in the sentencing process. The trial court specifically

instructed the jury during the sentencing phase that it “should not * * * impose

a greater sentence than is deserved with the thought that the Judge will lessen the

sentence, nor impose a lesser sentence than is deserved with the thought that the

Judge will increase the penalty since the Court cannot increase the sentence.” This

instruction sufficiently informed the jury of its “awesome responsibility” to

evaluate the “appropriateness of death” without regard to what the court may or

may not do when the jury has completed its evaluation. Caldwell, 472 U.S. at 330,

105 S.Ct. 2633, 86 L.Ed.2d 231. Because the trial court correctly explained the

capital sentencing process in this case, we reject LaMar’s nineteenth proposition.

E. Trial Court’s Sentencing Opinion

{¶111} In his seventeenth proposition of law, LaMar claims that the trial

court’s sentencing opinion failed to comport with R.C. 2929.03(F), which requires

a trial court imposing a sentence of death to “state in a separate opinion its specific

findings as to the existence of any of the mitigating factors set forth in [R.C.

2929.04(B)], the existence of any other mitigating factors, the aggravating

circumstances the offender was found guilty of committing, and the reasons why

the aggravating circumstances the offender was found guilty of committing were

sufficient to outweigh the mitigating factors.” In particular, LaMar contends that

the trial court weighed several “nonstatutory aggravating circumstances” in

reaching its decision to accept the jury’s recommendation and impose the death

penalty.

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{¶112} The trial court’s sentencing opinion accurately recited the

aggravating specifications that LaMar was found guilty of committing in

connection with each of the murders for which he was sentenced to death. LaMar

takes umbrage, however, with the trial court’s subsequent discussion of the

circumstances of the murders under a heading entitled, “Aggravating

Circumstances.” In this section, the trial court mentioned the non-lethal assaults on

inmates Andre Stockton and Ellis Walker, noting that “[t]he State elected to not

charge the Defendant for these assaults, although the evidence was that he was a

participant.” The trial court continued with the facts of each murder and referred

to the fact that both Depina and Vitale had begged and cried for mercy. And with

regard to Svette’s murder, the court wrote:

{¶113} “Once the death squad decided to leave L-6, they were confronted

by an alleged Cleveland Mafia hit man, William Svette, serving his second life

sentence for murder. * * * This time it was really and truly a life sentence, since

Mr. Svette, age 69, and who walked with a walker, was killed. * * * Mr. Svette’s

head was so grossly injured that some pictures were kept from the jury’s view.

Suffice it to say that one could put his hand directly through the crack in Svette

[sic] skull to his brain.”

{¶114} The trial court later added that the rampage of LaMar and his group

“is indicative of the Defendant’s mental process, his power, control, cruel, violent

and unremorseful attitude.” According to LaMar, the trial court effectively treated

all of these factors as “aggravating circumstances,” meaning that the court

impermissibly sentenced him to death based on aggravating circumstances not

listed in R.C. 2929.04(A). LaMar further notes that there was no evidence

presented at trial to support the trial court’s recitation of facts about Svette’s

criminal record. Accordingly, LaMar contends that the trial court “improperly

weighed findings on the aggravating side which were not permissible.” We reject

LaMar’s contentions.

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{¶115} It is permissible for the trial court to rely upon and cite the nature

and circumstances of the offense as reasons to support its finding that the

aggravating circumstances of which the jury found the defendant guilty outweigh

the mitigating factors beyond a reasonable doubt. State v. Fautenberry, 72 Ohio

St.3d at 440-441, 650 N.E.2d 878; State v. Stumpf (1987), 32 Ohio St.3d 95, 512

N.E.2d 598, paragraph one of the syllabus. It is sufficiently clear from the structure

and organization of the sentencing opinion that this was the purpose of the trial

court’s recitation of the facts surrounding the murders. The trial court discussed

the facts of each murder only after it had listed the statutory aggravating factors

that the jury had found to exist. We are therefore convinced that the trial court

knew the difference between statutory aggravating circumstances and the nature

and circumstances of the offense. See Fautenberry, 72 Ohio St.3d at 441, 650

N.E.2d at 878. And to the extent the trial court relied upon nonrecord evidence

about Svette’s criminal record and the fact that Svette required a walker, we find

nothing that would taint its findings that the aggravating circumstances outweighed

the mitigating factors.

{¶116} Under this proposition of law, LaMar also argues that the trial court

“improperly” analyzed the mitigating factors offered during the sentencing phase.

In support of his argument, LaMar cites the following passage from the sentencing

opinion:

{¶117} “It is true that the defendant was raised in a [sic] environment which

suggested that he was destined to get into trouble. However, the same community

allowed others to live and work within a community and society in a peaceful

fashion when they chose to, compelling this court to conclude that the defendant

functioned as a rational being during the period of time surrounding the criminal

activity of which he has been convicted.”

{¶118} Because the trial court openly refuted the notion that LaMar’s

background carried significant mitigating weight, LaMar contends that the trial

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January Term, 2002

court did not properly weigh the mitigating evidence, thereby depriving him of an

individualized determination of whether the death penalty was appropriate in this

case. We reject this argument. Contrary to LaMar’s contention, the passage

suggests that the trial court analyzed whether LaMar’s background affected his

mental status in any appreciable manner at the time of the offenses committed, as

the defense’s mitigating evidence suggested.

{¶119} LaMar also argues that the trial court failed to consider testimony

from Dr. Jeffrey Smalldon, indicating that LaMar suffered from a borderline

personality disorder. LaMar contends that the trial court “wholly discounted” Dr.

Smalldon’s testimony as mitigating evidence. We disagree with LaMar’s reading

of the sentencing opinion on this point. The trial court specifically mentioned that

LaMar “has been diagnosed over many years as having a borderline personality

disorder which manifests itself in antisocial behavior.” Thus, LaMar’s argument is

aimed more at the weight the trial court gave to the evidence. Matters involving

the weight to be given to mitigating evidence are within the trial court’s domain.

State v. Lott, 51 Ohio St.3d at 171, 555 N.E.2d 293. “The fact that mitigation

evidence is admissible ‘does not automatically mean that it must be given any

weight.’ ” State v. Mitts (1998), 81 Ohio St.3d 223, 235, 690 N.E.2d 522, quoting

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

of the syllabus. Moreover, this court’s independent sentence reassessment can

correct any error in the trial court’s treatment of the mitigating evidence. Mitts.

See, also, State v. Robb, 88 Ohio St.3d at 83, 723 N.E.2d 1019; State v. Fox (1994),

69 Ohio St.3d 183, 191, 631 N.E.2d 124.

{¶120} Finally, LaMar claims that the trial court “wholly failed” to specify

why the aggravating circumstances outweighed the mitigating factors beyond a

reasonable doubt. This contention is simply incorrect. The trial court’s sentencing

opinion devoted almost three full pages to weighing the aggravating circumstances

against the mitigating factors. The seventeenth proposition of law is overruled.

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VI. Prosecutorial Misconduct

{¶121} In the fourth proposition of law, LaMar claims that the prosecutor

committed misconduct throughout his trial. To address these arguments, we must

determine (1) whether the prosecutor’s conduct was improper and (2) if so, whether

it prejudicially affected LaMar’s substantial rights. State v. Smith (1984), 14 Ohio

St.3d 13, 14, 14 OBR 317, 470 N.E.2d 883. The touchstone of this analysis “is the

fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips (1982),

455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78. We will not deem a trial unfair

if, in the context of the entire trial, it appears clear beyond a reasonable doubt that

the jury would have found the defendant guilty even without the improper

comments. State v. Treesh (2001), 90 Ohio St.3d 460, 464, 739 N.E.2d 749; see,

also, Smith, 14 Ohio St.3d at 15, 14 OBR 317, 470 N.E.2d 883.

A. Improper Voir Dire

{¶122} LaMar claims that the prosecutor committed misconduct during jury

voir dire. He first complains that the prosecutor ignored the trial court’s request

that the attorneys not “get into the facts” and “basically attempted to give an

opening statement.” LaMar cites one passage in which the prosecutor told potential

jurors that “in this particular case Keith LaMar did hands-on killing of some of

these people.” The record shows, however, that the trial court sustained a defense

objection to this statement and admonished the potential jurors not to treat such

comments as evidence. Accordingly, LaMar has not shown any prejudice flowing

from the prosecutor’s remark.

{¶123} LaMar next claims that the prosecutor improperly vouched for the

credibility of witnesses whom the state would call during trial. For example, the

prosecutor discussed the credibility of inmate witnesses by telling the potential

jurors that “most of the people involved at Lucasville, a lot of them are very, very

decent people that have made mistakes in the past.” Despite the trial court

sustaining an objection to this remark, the prosecutor continued this line of

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January Term, 2002

discussion by adding that “a majority of people in that particular situation did not

want to be involved.”

{¶124} “It is improper for an attorney to express his or her personal belief

or opinion as to the credibility of a witness.” State v. Williams (1997), 79 Ohio

St.3d 1, 12, 679 N.E.2d 646. We do not, however, view the prosecutor’s comments

as improper vouching for the credibility of the inmate witnesses he would call at

trial. Rather, the prosecutor was validly exploring the possibility that potential

jurors would be predisposed to discredit certain witnesses simply because they were

inmates. A prosecutor may properly try to “ensure that jurors would not be biased

against his witnesses.” State v. Lundgren, 73 Ohio St.3d at 484, 653 N.E.2d 304.

And even if we believed that the prosecutor’s comments were improper, they were

harmless error at worst, particularly in view of the fact that the defense also relied

upon inmate witness testimony.

B. Conduct During Opening Statement

{¶125} During his opening statement, the prosecutor read the indictment

and recited the results from the autopsies performed on the murder victims. LaMar

argues that this constituted an improper “attempt to focus the jurors on the horror

of the crime rather than the evidence.” We are not persuaded.

{¶126} As to the prosecutor reciting the autopsy results to the jury, LaMar’s

counsel did not object, thereby forfeiting all but plain error. See State v. Clemons

(1998), 82 Ohio St.3d 438, 451, 696 N.E.2d 1009. Even if defense counsel had

objected, however, the objection would have been overruled because there was no

error. In view of the fact that the state admitted the autopsy results into evidence,

the prosecutor’s remarks about them were nothing more than a fair commentary on

the facts to be presented at trial.

{¶127} As for the prosecutor’s reading of the indictment during opening

statement, the trial court properly overruled defense counsel’s objection. LaMar

cites no authority for the proposition that a prosecutor may not read from the

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indictment during opening statement. Indeed, our precedent suggests that it is not

improper to do so. In State v. Graven (1977), 52 Ohio St.2d 112, 6 O.O.3d 334,

369 N.E.2d 1205, for example, this court held that a trial court has discretion in a

criminal case to let the jury take a copy of the indictment into the jury room. Id. at

syllabus. If it is proper for the jury to read an indictment in the jury room, a

defendant cannot claim prejudice from a prosecutor’s reading the indictment during

opening statement. Further, the trial court instructed the jury that neither the

opening statement nor the indictment is considered to be evidence of an accused’s

guilt.

C. Inappropriate Comments, Questions, and Arguing with the Court

{¶128} LaMar also claims that the prosecutor acted improperly by

questioning trial court rulings on defense objections, asking improper questions,

arguing with witnesses, and making inappropriate comments. LaMar first cites the

prosecutor’s remarks during defense counsel’s cross-examination of two

prosecution witnesses. At one point, while the defense was attempting to impeach

Robert Bass’s testimony with the fact that Bass had reviewed the transcript of his

prior statement before testifying, the prosecutor interrupted the questioning in an

apparent attempt to explain the circumstances of Bass’s receiving the transcript.

Similarly, during the defense’s cross-examination of Thomas Taylor, the

prosecutor interjected, “I’ll stipulate that I prepared my case and talked to every

witness” when the defense was inquiring about Taylor’s previous interviews with

investigators and/or prosecutors. The trial court admonished the prosecutor not to

make comments during the cross-examination.

{¶129} Second, LaMar points to an instance of improper questioning during

the prosecutor’s cross-examination of Cory Perkins, a defense witness. LaMar

complains of the following exchange, which occurred while the prosecutor was

questioning Perkins about a statement Perkins had made to investigators about the

Weaver murder.

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{¶130} “Q. [by the prosecutor] What depth or details didn’t you go in that

you went into with the jury now?

{¶131} “A. Well, I mean, to be frank, I told them the same thing I told

them. Just different things left out that ain’t really no big thing.

{¶132} “Q. What did you leave out? We’ll decide if it’s a big thing or not.

{¶133} “MR. CARSON [defense counsel]: Objection, your Honor.

{¶134} “THE COURT: Sustained. It’s argumentative.”

{¶135} LaMar also complains of improper cross-examination when LaMar

was on the witness stand. When the trial court instructed the prosecutor to limit his

cross-examination about LaMar’s boxing career to the fact of whether LaMar was

in fact a boxer, the prosecutor ignored the admonition:

{¶136} “Q. [by the prosecutor] You are a heavyweight boxing champion in

the institution, are you not?

{¶137} “MR. CARSON: Objection, your Honor. That’s not the question

you allowed.

{¶138} “THE COURT: Overruled.

{¶139} “A. [by LaMar] I’m a heavyweight boxer. I tried but I failed, and

right before the riot took place—well, the riot stopped me from trying again. To

answer your question, no, I’m not nor have I ever been a heavyweight champion

within the institution.

{¶140} “Q. You are a boxer, are you not?

{¶141} “A. Yeah, that’s correct.

{¶142} “Q. And as a boxer, you’re trained to deliver a knockout blow?

{¶143} “MR. CARSON: Objection.

{¶144} “THE COURT: Overruled—or sustained. Excuse me.

{¶145} “Q: And as a boxer, you have a killer instinct, don’t you Mr. LaMar?

{¶146} “MR. CARSON: Objection.

{¶147} “THE COURT: Sustained. Go to a different line of questions.”

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{¶148} LaMar also notes that the trial court “sustained a total of forty-five

objections in the space of fifty-nine pages of transcript—several more than once”

during his testimony. LaMar also complains that the prosecutor continually ignored

the court’s rulings by continuing improper lines of questioning with LaMar and

other witnesses.

{¶149} Upon review of the record, we agree that the prosecutor engaged in

some improper and unprofessional behavior. We find no reason for the prosecutor

to have ignored admonitions by the trial court about improper questions. Similarly,

we find it improper for the prosecutor to have interjected comments in open court,

particularly when he interrupted testimony to make statements of fact and

essentially testify in place of the witness. See State v. Fears (1999), 86 Ohio St.3d

329, 332, 715 N.E.2d 136 (reminding prosecutors to “be diligent in their efforts” to

“refrain from the desire to make outlandish remarks, misstate evidence, or confuse

legal concepts”). That being said, however, we disagree with LaMar about the

prejudicial nature of the prosecutor’s conduct; the misconduct cited by LaMar did

not pervade the trial to such a degree that there was a denial of due process. See

State v. Keenan (1993), 66 Ohio St.3d 402, 410, 613 N.E.2d 203. The trial court

sustained numerous objections by defense counsel and, on the state of the record

before us, we have no reason to believe that the outcome of the trial was affected

by the prosecutor’s improper comments. See Fears, 86 Ohio St.3d at 336, 715

N.E.2d 136.

D. Improper Impeachment of the Defendant

{¶150} LaMar also claims misconduct in the manner in which the

prosecutor asked questions about his prior conviction for murder. During trial and

prior to LaMar’s testimony, the defense had stipulated that LaMar had been

convicted of murder in Cuyahoga County in 1989 and that, as a result, LaMar was

incarcerated at SOCF at the time of the murders for which he was on trial.

Nevertheless, during cross-examination of LaMar, the prosecutor delved into the

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details of LaMar’s prior murder conviction. The trial court sustained a defense

objection after the prosecutor asked LaMar if he had shot his victim “with a gun”

and “in the heart.”

{¶151} When an accused testifies at trial, Evid.R. 609(A)(2) allows the state

to impeach the accused’s credibility with evidence that the accused has been

convicted of an offense punishable by imprisonment in excess of one year. Under

Evid.R. 609, the trial court has broad discretion to prohibit questioning about more

than the “name, date and place of the conviction, and the punishment imposed,

when the conviction is admissible solely to impeach credibility.” State v. Amburgey

(1987), 33 Ohio St.3d 115, 116, 515 N.E.2d 925. Acting within its discretion, the

trial court sustained an objection to the prosecutor’s line of questioning, which in

any event consisted of only two questions about the circumstances surrounding

LaMar’s prior conviction. We find nothing unduly prejudicial about the

prosecutor’s conduct in this respect.

E. Improper Trial-Phase Closing Argument

{¶152} In his next claim of misconduct, LaMar alleges improper argument

during the trial phase. Specifically, LaMar contends that the prosecutor denigrated

defense counsel, used gruesome photographs in an unfair manner, and implored the

jury to return a guilty verdict on a capital specification simply so they could proceed

to the penalty phase.

{¶153} As to the denigration of the defense, LaMar calls our attention to the

following passage of the prosecutor’s closing argument:

{¶154} “Mr. Toy [defense counsel] told all of you on voir dire that this is

the first case like this he’s ever handled. He’s never done this before. He got very

excited, and he put on a show.

{¶155} “Let’s look at the case carefully. First, let’s look at some of the

things that have been stressed to you by the Defense. Have you noticed that they

always call the Defendant Keith? Has anybody noticed that?

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{¶156} “[Defense objection overruled.]

{¶157} “Out of the hundreds or thousands of times that Keith LaMar has

been referred to by the Defense, almost every time they refer to him as Keith, his

first name. They have an angle to present to you in this case, and it’s to call him—

to humanize him, to call him by his first name.”

{¶158} This is not the lone instance in which LaMar claims that the

prosecution denigrated the defense. LaMar also calls our attention to another

portion of the closing argument, in which the prosecutor compared his case to that

of the defense. Even after the trial court sustained an objection to a comment in

which the prosecutor accused the defense of having a strategy aimed at criticizing

the prosecution and its witnesses, the prosecutor continued along this same theme:

{¶159} “First of all, let’s talk about me. The Defendant told you on the

witness stand that I put together a case against him, intimating to you that somehow

I orchestrated all these witnesses like a puppet master or something and got them

to come in here and testify against him. I agree I did prepare my case. I did put

together a case; but I put together a truthful case, an honest case.

{¶160} “The Defendant and the defense attorney implied that I orchestrated

perjury. This is totally inaccurate. It was implied that I know that these inmate

witnesses came up here and lied and presented it in court anyway.

{¶161} “* * *

{¶162} “It was told to you that this was a fiasco and that Sergeant Hudson

and Sergeant Brink, supervisors in the patrol, were sloppy and unprofessional with

regard to this entire investigation. It was criticized by Mr. Toy the way the yard

removal was handled. * * * It’s very easy in hindsight to criticize the efforts of

somebody else, a professional in that field.

{¶163} “* * *

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January Term, 2002

{¶164} “But, again, Mr. Toy gets up here with his charts and his pencils and

his pens and his pointer and tells you that Corrections Officer Clarkson, he just

really dropped the ball.

{¶165} “These are good, honest men and women that are trying to do the

right thing and because of him they have to get up here and get dragged through the

mud in front of you, a court reporter, a judge, television cameras, and everything

else. I guess it’s all part of the job.

{¶166} “Why is this done? It’s done to deflect attention away from Keith

LaMar in the courtroom. * * * It’s an attack on everything. What does that tell you

about their defense?” (Emphasis added.)

{¶167} It is true, of course, that the prosecution is entitled to some latitude

and freedom of expression in closing argument. Keenan, 66 Ohio St.3d at 409, 613

N.E.2d 203. “Realism compels us to recognize that criminal trials cannot be

squeezed dry of all feeling.” Id. That being said, however, some of the prosecutor’s

comments exceeded the scope of proper argument. In the first passage cited above,

the prosecutor denigrated defense counsel by pointedly ridiculing the defense’s

apparent effort to remind the jury that LaMar was a human being. This tactic was

just as improper as disparaging defense counsel for raising objections, which this

court has condemned. See, e.g., id. at 406, 613 N.E.2d 203. As for the second

passage complained of by LaMar, the prosecutor’s juxtaposition of his “honest”

case with the defense’s case, particularly when viewed in light of the pointed

criticism of one of LaMar’s defense attorneys, unfairly suggested that the defense’s

case was untruthful and not honestly presented. In the context in which they were

stated, the prosecution’s comments imputed insincerity to defense counsel and were

therefore improper. Id. at 405-406, 613 N.E.2d 203; State v. Clemons, 82 Ohio

St.3d at 452, 696 N.E.2d 1009.

{¶168} The fact that the prosecutor engaged in some improper argument,

however, does not warrant reversal unless the remarks prejudicially affected

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substantial rights of the accused. State v. Hessler (2000), 90 Ohio St.3d 108, 125,

734 N.E.2d 1237. In making this determination, we must consider the effect of any

misconduct in the context of the entire trial. Keenan, 66 Ohio St.3d at 410, 613

N.E.2d 203. We must also view the prosecutor’s closing argument in its entirety

when determining prejudice. State v. Hill (1996), 75 Ohio St.3d 195, 204, 661

N.E.2d 1068. Using these standards, we see no basis for reversing LaMar’s

conviction based on the prosecutor’s comments. Even though some of the

prosecutor’s argument was improper, such comments did not pervade the entire

trial, let alone the closing argument. We are unconvinced that the result of LaMar’s

trial would have been different without the few instances of improper commentary

by the prosecution.

{¶169} LaMar also complains of the prosecutor’s displaying and

commenting on photographs of the victims during the closing argument. LaMar’s

counsel failed to object to this action by the prosecutor, thereby forfeiting all but

plain error. See Getsy, 84 Ohio St.3d at 195, 702 N.E.2d at 866. There was no

plain error here. Although a prosecutor may not use gruesome photographs during

closing argument in an effort to appeal to the jurors’ emotions, see Keenan, 66 Ohio

St.3d at 407, 613 N.E.2d 203, we see no such effort here. The prosecutor focused

his comments on what the photographs proved and did not make any emotional

appeals to the jury to find LaMar guilty simply on the basis of what the photographs

showed. We therefore disagree with LaMar’s contention that the prosecutor

committed misconduct in this respect.

{¶170} LaMar also contends that the prosecutor committed misconduct in

the trial-phase closing argument when he remarked to the jury, “The Defendant is

guilty of aggravated murder and specification. That’s the way, the only way to get

to the penalty phase.” The trial court sustained a defense objection and instructed

the jury to disregard this comment, which LaMar argues was an improper ploy by

the prosecution to implore the jurors “to find the specification so they could get to

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the sentencing phase.” Even if we agreed with LaMar’s characterization of the

prosecutor’s comment and motive for saying it, we would be unable to find

reversible error. The trial court’s curative instruction was sufficient to relieve any

prejudice. Loza, 71 Ohio St.3d at 75, 641 N.E.2d 1082.

F. Improper Penalty-Phase Closing Argument

{¶171} In addition to claiming misconduct in the prosecutor’s trial-phase

closing argument, LaMar also alleges that the prosecutor committed misconduct

during the sentencing proceedings. He cites the following passages as instances of

improper argument:

{¶172} • “But there are plenty of people who have lived successful lives,

have made something of themselves when they were raised in poverty, when they

were raised by a single parent.”

{¶173} • “Keith LaMar made the conscious choices to kill a friend of his

by shooting him twice in the heart.”

{¶174} • “The prior purposeful killing, he has killed before; and [defense

counsel] called that random violence. I think he used those words to you. There

was no randomness in that. He took a gun and put it to the man’s heart and he fired

twice.”

{¶175} • “As far as the mitigation, again, I might have heard things

differently, but I heard that he was a very happy, well-adjusted child from the ages

of birth to four or five years old.”

{¶176} • “He was already given a chance at a life sentence and look what

happened. There may be some mitigation in this case, but it certainly does not rise

to nearly the level of the aggravating circumstances. Nothing was presented that

mitigated what he did, and any mitigation is greatly outweighed and absolutely

eclipsed by the aggravating circumstances.”

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{¶177} Because defense counsel did not object to any of these comments,

our analysis is limited to ascertaining whether there was plain error. We find that

none of the comments, either individually or in the aggregate, constitutes plain

error.

{¶178} In the first comment complained of above, the prosecutor merely

noted that not everyone with a troubled background similar to LaMar’s has

committed crimes of this magnitude. There is nothing wrong with this type of

argument. State v. Wilson, 74 Ohio St.3d at 399, 659 N.E.2d 292. Such comment

is fair rebuttal to the defense’s argument that the jury should consider LaMar’s

background to be a significant mitigating factor in determining whether he should

be sentenced to death.

{¶179} As for the second and third statements quoted above, we also see

nothing improper. One of the aggravating circumstances in this case was the fact

that LaMar had been previously convicted of murder. In its penalty-phase closing

argument, the defense had told the jury to view the prior murder as an act of

“random violence” that was typical of the environment in which LaMar was

brought up. In light of the defense’s comments, the prosecutor’s comment about

LaMar’s prior offense constituted proper rebuttal.

{¶180} We also see nothing improper about the last two comments

complained of by LaMar. The prosecutor’s argument about LaMar’s childhood

rebutted defense contentions about LaMar’s upbringing. Indeed, “the contention

that the jury is to be carefully fed only that information which reflects positively

upon the capital defendant [is] ‘ludicrous.’ ” Gumm, 73 Ohio St.3d at 420, 653

N.E.2d 253, quoting State v. Greer (1988), 39 Ohio St.3d 236, 253, 530 N.E.2d

382. Similarly, we see nothing wrong with the last comment by the prosecutor. In

it, the prosecutor merely argues his view on what the outcome of the case should

be—that the jury should find that the aggravating circumstances outweigh the

mitigating circumstances beyond a reasonable doubt. For these reasons, we find

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LaMar’s complaints about the prosecutor’s penalty-phase argument to be without

merit.

G. Pattern of Misconduct

{¶181} Apart from all of the specific instances of misconduct, LaMar

complains that the prosecutor engaged in a pattern of misconduct that “permeated”

the proceedings and deprived him of a fair trial. LaMar urges that we cumulate the

above-identified instances of misconduct and conclude that the entire trial was so

tainted as to warrant reversal and remand for a new trial. We are not persuaded.

{¶182} Admittedly, we have recognized that there were some instances of

questionable conduct by the prosecutor. But none of the instances of misconduct

cited by LaMar, either individually or collectively, deprived him of a fair trial. The

prosecutorial actions pinpointed by LaMar were relatively few and far between in

the context of a trial that took over two weeks to complete. In numerous instances

in this case, the trial court sustained defense objections and gave curative

instructions when necessary. Cf. Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203

(noting that prosecutor’s conduct can be exacerbated by lack of curative

instructions and by trial court consistently overruling defense objections to

misconduct). Although LaMar may not have received a perfect trial, we conclude

that nothing in the prosecutors’ conduct deprived him of a fair one. See State v.

Wilson, 74 Ohio St.3d at 399, 659 N.E.2d 292.

{¶183} The fourth proposition of law is overruled.

VII. Independent Sentence Review

{¶184} Having rejected each of LaMar’s propositions of law, we now turn

to our statutory duty to independently weigh the aggravating circumstances against

the mitigating factors and, in addition, determine whether LaMar’s sentence is

disproportionate to sentences in similar cases. See R.C. 2929.05(A). Our review

at this stage is limited to the four murders for which LaMar was given the death

penalty. Id.

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{¶185} The evidence in this case supports the existence of the aggravating

circumstances found by the jury and the trial court. LaMar stipulated to the

existence of two aggravating circumstances: (1) that LaMar was a prisoner in a

detention facility at the time of the offense and (2) that LaMar had previously been

convicted of murder. See R.C. 2929.04(A)(4) and (5). We further find that the

evidence in the record proves that LaMar committed each aggravated murder as

part of a course of conduct involving the purposeful killing of more than one person.

R.C. 2929.04(A)(5). Finally, the evidence supports LaMar’s conviction of the R.C.

2929.04(A)(7) specification attached to the aggravated murders of Vitale, Depina,

and Svette. The state’s evidence proved that LaMar was, at the very least, a

complicitor in the Muslim inmates’ kidnapping of the suspected snitches in L-6.

{¶186} In mitigation, several witnesses testified about LaMar’s troubled

background. LaMar, along with his siblings, grew up in a poor neighborhood where

illegal drug activity and violence were common. LaMar’s aunt, Carolyn LaMar,

testified that LaMar lived with a stepfather who was “mean” to him and who would

beat him for minor transgressions, such as failing to take out the garbage or

touching his stepfather’s things. And although LaMar’s mother tried to look out

for LaMar and his siblings, “she wasn’t there for them because she was having her

own problems.” Carolyn also testified about shortcomings she perceived in

LaMar’s living conditions. For example, she testified that LaMar and his siblings

were not well fed and lived in a house that was inadequately heated. Eventually,

while still a teenager, LaMar quit school and moved out of the house to live with

friends in an apartment, which was located in a neighborhood with lots of illegal

drug activity.

{¶187} LaMar’s older brother, Nelson LaMar, also testified for the defense

and corroborated Carolyn LaMar’s description of their upbringing. He testified that

their stepfather was physically and mentally abusive and showed interest in the

boys’ lives only because of their athletic talent. According to Nelson, their

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stepfather wanted them to be athletes and would beat them when they did not

perform well athletically. Nelson also testified that he introduced his brother to

drug dealing. Nelson told the jury that he “taught [LaMar] everything of the

criminal element.” At the time of his testimony, Nelson was himself in prison for

a robbery conviction.

{¶188} Kim Granger, a former girlfriend who had known LaMar since the

two were in high school, testified that LaMar did not have a good relationship with

either his mother or his stepfather. She described LaMar as a “nice guy” who was

heavily involved in sports before he started “getting into illegal activities like

stealing and being in the streets a lot.” LaMar told her that he did these things

because he needed money for food and clothing. Granger, who remained friends

with LaMar after he went to prison, also testified that LaMar had become “really

spiritual” and described him as a “compassionate person.”

{¶189} Charles R. See, a social service administrator with experience

working with inner-city youth, also gave mitigation testimony for the defense. See

interviewed LaMar and numerous members of LaMar’s family to familiarize

himself with LaMar’s background. See described the area in which LaMar grew

up as “socially and economically depressed,” but noted that LaMar’s athletic talent

could have been his “ticket out of the ghetto” if he had received support and

guidance. In See’s view, however, LaMar’s mother failed to provide strong

parental support and LaMar’s stepfather was excessively abusive. And when

LaMar eventually moved to an apartment of his own, See noted that he began living

in one of the “most dangerous areas in the city of Cleveland.” Based on his

background and living conditions, See testified that it was “ninety percent

predictable” that LaMar would become involved in drugs and other illegal

activities.

{¶190} Dr. Jeffrey L. Smalldon, a clinical psychologist, was the defense’s

final mitigation witness. He testified that LaMar was “unfailingly polite and

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respectful” during their meetings and described LaMar as “an unusually thoughtful,

reflective, introspective” person. Dr. Smalldon noted that LaMar denied

involvement in the offenses for which he was convicted; this denial was unusual,

Dr. Smalldon testified, in light of LaMar’s usual disinclination to “shift blame onto

other people * * * for various illegal things he’s done over the years.”

{¶191} As for LaMar’s personal background, Dr. Smalldon opined that the

absence of a stable male role model left a “profound void” in LaMar’s life. Dr.

Smalldon noted that LaMar never knew his biological father and that LaMar’s

stepfather, as well as an uncle, subjected him to “very, very harsh physical

treatment.” In turn, the abuse inflicted by LaMar’s stepfather created a feeling of

“helplessness” in LaMar, particularly because LaMar could not predict when the

abuse would occur. In Dr. Smalldon’s view, LaMar was also affected by his

mother’s “limited repertoire of parenting skills” and the death of another brother at

a young age.

{¶192} Dr. Smalldon also testified to the effect that drugs and alcohol had

on LaMar’s life. LaMar used and sold marijuana when he was fourteen years old

and eventually began abusing alcohol, cocaine, crack, and PCP. According to Dr.

Smalldon, LaMar developed a serious crack cocaine habit that persisted until he

went to prison in 1989. The drugs provided LaMar with a means of “escape” and

served a “numbing function” that desensitized LaMar from the painful aspects of

his day-to-day life. Dr. Smalldon ultimately diagnosed LaMar as drug- and

alcohol-dependent. He also diagnosed LaMar as suffering from a “personality

disorder not otherwise specified but one having antisocial and narcissistic features.”

{¶193} In his unsworn statement, LaMar told the jurors that he was

disappointed in their verdict but that he did not hold it against them. He also

explained that his previous murder conviction resulted from a shootout in which he

had also been shot. LaMar expressed some regret about that incident because the

victim he shot “twice in the heart” had been a childhood friend. LaMar

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acknowledged that his background had been difficult and added that he had

instructed his mother not to testify for him because he “didn’t want her to feel that

she had to justify, you know, or apologize for doing the best that she could.”

{¶194} In conducting our independent assessment of the appropriateness of

the death sentence, we must weigh the aggravating circumstances against (1) the

nature and circumstances of the crime, (2) the history, background, and character

of the offender, and (3) any applicable mitigating factors enumerated in R.C.

2929.04(B)(1) through (B)(7). State v. Treesh, 90 Ohio St.3d at 491, 739 N.E.2d

749. Here, the nature and circumstances of the aggravated murders offer little to

nothing in terms of mitigation. LaMar was the leader of a death squad that brutally

beat the L-6 victims simply because they were suspected “snitches.” And as to

Weaver’s murder, LaMar ordered others to strangle the victim and threatened

cellmates with physical harm if they did not comply with his orders. Moreover,

these circumstances convince us that the statutory mitigating factors enumerated at

R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress, coercion, strong

provocation), and (B)(6) (accused not being principal offender) are inapplicable in

this case.

{¶195} As for the evidence relating to LaMar’s background, we

acknowledge that it is entitled to some weight. See, e.g., Tibbetts, 92 Ohio St.3d at

174, 749 N.E.2d 226. We accord it only modest weight, however, just as we have

done in other capital cases of defendants with similarly troubled backgrounds. See,

e.g., State v. Spivey (1998), 81 Ohio St.3d 405, 424, 692 N.E.2d 151. We also give

some weight to Dr. Smalldon’s diagnosis of LaMar’s drug addiction. See Treesh,

90 Ohio St.3d at 493, 739 N.E.2d 749.

{¶196} The remaining statutory mitigating factors are generally

inapplicable in this case. Although Dr. Smalldon testified that LaMar suffers from

a personality disorder, we are unable to conclude that this condition rises to the

level of a “mental disease or defect” that would trigger the R.C. 2929.04(B)(3)

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mitigating factor in light of the absence of testimony that the condition prevented

LaMar from appreciating the criminality of his conduct. See, e.g., Tibbetts, 92 Ohio

St.3d at 173, 749 N.E.2d 226. LaMar’s criminal record rendered R.C.

2929.04(B)(5) (lack of significant criminal history) inapplicable and we see no

reason why LaMar’s age at the time of the offenses should trigger the R.C.

2929.04(B)(4) “youth of the offender” factor. Finally, the evidence does not

suggest the existence of any other mitigating factors. See R.C. 2929.04(B)(7).

{¶197} Against the modest mitigating evidence, we weigh the aggravating

circumstances of which LaMar was found guilty. In this case, the aggravating

circumstances are grievous: LaMar, already incarcerated as a convicted murderer,

was the ringleader in a murder spree that killed five victims. We further note that

the R.C. 2929.04(A)(5) prior-murder specification is of particular significance. As

we just recently observed, “the (A)(5) prior-murder circumstance ‘can be even

more grave than other aggravating circumstances.’ ” State v. Campbell (2002), 95

Ohio St.3d 48, 58, 765 N.E.2d 334, quoting State v. Taylor (1997), 78 Ohio St.3d

15, 34, 676 N.E.2d 82. We therefore agree with the jury and the trial court that the

aggravating circumstances outweigh the mitigating factors beyond a reasonable

doubt.

{¶198} We also find that the death sentence in this case is appropriate and

proportionate when compared with similar capital cases in which the death penalty

has been imposed. See State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d

383, paragraph one of the syllabus. We have affirmed the imposition of the death

penalty in other cases involving murders committed during the SOCF riot. See

State v. Sanders (2001), 92 Ohio St.3d 245, 750 N.E.2d 90; State v. Robb, 88 Ohio

St.3d 59, 723 N.E.2d 1019. LaMar’s sentence also appears appropriate and

proportional when compared to other death-penalty cases involving similar

aggravating circumstances. See, e.g., State v. Campbell, supra, 95 Ohio St.3d 48,

765 N.E.2d 334 (aggravated murder committed during a kidnapping by an offender

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with a prior murder conviction); State v. Carter (1992), 64 Ohio St.3d 218, 594

N.E.2d 595 (aggravated murder committed in a detention facility by an offender

with a prior murder conviction); State v. Zuern (1987), 32 Ohio St.3d 56, 512

N.E.2d 585 (aggravated murder in a detention facility); State v. Hessler, 90 Ohio

St.3d 108, 734 N.E.2d 1237 (course of conduct involving multiple murders); State

v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (aggravated murder during a

kidnapping).

{¶199} For the foregoing reasons, we affirm LaMar’s convictions,

including the sentences of death for the murders of Vitale, Depina, Svette, and

Weaver.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG

STRATTON, JJ., concur.

PFEIFER, J., concurs in judgment.

__________________

APPENDIX

{¶200} Proposition of Law No. 1: The suppression by the prosecution of

evidence favorable to an accused violates due process where the evidence is

material to guilt or punishment. Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215; Kyles v. Whitley (1995), 514 U.S. 419, 115 S.Ct. 1555, 131

L.Ed.2d 490.

{¶201} When a trial court refuses to order the prosecution to provide

witnesses’ names and their corresponding exculpatory statements it denys [sic]

appellant a meaningful opportunity to obtain the information thereby denying

appellant due process as guaranteed by the federal and state Constitutions.

{¶202} The trial court erred in failing to grant defendant’s motion for new

trial under Brady v. Maryland following trial when it was discovered that the state

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had provided the requested information in other cases although claiming it could

not provide it in Mr. LaMar’s case because they promised inmates confidentiality.

{¶203} The trial court erred in failing to grant defendant’s motion for new

trial under Brady v. Maryland following trial when it was discovered that the state

had withheld exculpatory evidence that was not the subject of the information and

statements discussed in (A).

{¶204} Proposition of Law No. 2: The Due Process Clause of both the

federal and state Constitutions entitles an accused to trial before an impartial judge.

{¶205} Proposition of Law No. 3: When a trial court unreasonably and

arbitrarily restricts a defendant’s voir dire examination prejudicial error occurs in

that the defendant is denied the right to a fair and impartial jury in violation of the

Sixth and Fourteenth Amendments to the United States Constitution and Article I,

Sections 2, 9, 10 and 16 of the Ohio Constitution.

{¶206} Proposition of Law No. 4: A capital defendant is denied his rights

to a fair trial, due process and a reliable determination of his guilt and sentence as

guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when

the prosecutor repeatedly engages in improper argument and other misconduct prior

to and throughout the trial.

{¶207} Proposition of Law No. 5: Admission of gruesome and misleading

photos when their prejudicial effect outweighs their probative value denys [sic]

appellant a fair trial, due process and a reliable determination of his guilt and

sentence as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution and Article I, Sections 10 and 16 of the Ohio

Constitution. This error was compounded by the trial court’s admission of

irrelevant photographs lacking any probative value used solely to inflame the jury.

{¶208} Proposition of Law No. 6: The admission of highly prejudicial

hearsay evidence in violation of the Ohio Evidence Rules denys [sic] appellant his

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federal and state constitutional rights to a fair trial and his right to cross-examine

witnesses against him.

{¶209} Proposition of Law No. 7: The trial court erred in failing to grant

appellant LaMar’s motion to dismiss based on selective prosecution, thereby

denying Mr. LaMar his constitutional rights under the Fifth and Fourteenth

Amendments to the U.S. Constitution and Article I, Section 2, 10 and 16 of the

Ohio Constitution. The trial court further erred in failing to require the state to

properly comply with the defendant’s discovery requests and to state its essential

findings of fact regarding the denial of this motion on the record.

{¶210} Proposition of Law No. 8: In a case where the evidence is not simple

and direct the refusal to sever charges where a jury is likely to confuse the offenses,

cumulate the evidence and consider one offense as corroborative of other offenses,

creates prejudicial error which denies a defendant his rights to a fair trial as

guaranteed by both the Ohio and United States Constitutions.

{¶211} Proposition of Law No. 9: Appellant’s convictions relating to the

death of William Svette were based on insufficient evidence as a matter of law

thereby denying the appellant due process of law. The trial court erred in failing to

sustain appellant’s motion for acquittal for the charges relating to William Svette,

pursuant to Crim.R. 29, as the convictions of the appellant were based on

insufficient evidence.

{¶212} Proposition of Law No. 10: Appellant’s conviction of the

specification alleging that the offense was a part of a course of conduct involving

the purposeful killing or attempt to kill two or more persons pursuant to R.C.

2929.04(A)(5) as applied to the death of Dennis Weaver was based on insufficient

evidence as a matter of law thereby denying the appellant due process of law. The

trial court erred in failing to sustain appellant’s motion for acquittal for the

specification pursuant to Crim.R. 29, as the conviction of the appellant was based

on insufficient evidence.

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{¶213} Proposition of Law No. 11: Appellant’s convictions for the

aggravating circumstance alleging that the offense was committed while the

offender was committing, attempting to commit, or fleeing immediately after

committing or attempting to commit kidnapping and either the offender was the

principal offender in the commission of the aggravated murder or, if not the

principal offender committed the aggravated murder with prior calculation and

design were based on insufficient evidence as a matter of law thereby denying the

appellant due process of law. The trial court erred in failing to sustain appellant’s

motion for acquittal for the kidnapping specification on the charges relating to

Darrell Depina, Bruce Vitale, Albert Staino [sic, Staiano] and William Svette,

pursuant to Crim.R. 29, as the convictions of the appellant were based on

insufficient evidence.

{¶214} Proposition of Law No. 12: The trial court committed prejudicial

error in failing to grant Mr. LaMar’s motion for a new trial based on newly

discovered evidence thereby denying Mr. LaMar his constitutional rights to due

process, a fair trial, effective assistance of counsel and a reliable sentencing

determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the U.S. Constitution and Article I, Sections 2, 9, 10 and 16 of the

Ohio Constitution.

{¶215} Proposition of Law No. 13: The trial court erred in failing to grant

defendant’s motion for new trial pursuant to Crim.R. 33(3) [sic, 33(A)(3)], thereby

denying appellant LaMar his rights to due process, a fair trial, and effective

assistance of counsel as guaranteed by the U.S. Constitution and the Ohio

Constitution.

{¶216} Proposition of Law No. 14: The trial court committed prejudicial

error in admitting all evidence submitted by the state in the guilt-innocence phase

into the mitigation phase as much of the evidence was not relevant to any specific

aggravating circumstance. Such error denied Keith LaMar his rights under the

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Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and his

corresponding state constitutional rights.

{¶217} Proposition of Law No. 15: The trial court erred in failing to grant

a mistrial, or in the alternative, to dismiss the jury when the prosecutor repeatedly

argued inappropriately regarding mitigating factors which acted to deny Mr. LaMar

the individualized sentencing determination required by the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the U.S. Constitution and corresponding provisions

of the Ohio Constitution.

{¶218} Proposition of Law No. 16: The trial court erred in instructing the

jury during the sentencing phase by (A) failing to inform the jury a solitary juror

could prevent the death sentence and (B) in placing undue influence on the

requirement of unanimity such that Mr. LaMar’s death sentences lack the reliability

required by the Eighth and Fourteenth Amendments to the U.S. Constitution and

Article I, Section[s] 2, 9, 10, and 16 of the Ohio Constitution.

{¶219} Proposition of Law No. 17: The trial court erred when it failed to

comply with the dictates of R.C. 2929.03 by weighing non-statutory aggravating

circumstances, by relying on evidence that was not a part of the record, by

discounting the mitigating factors and by failing to articulate the reasons why the

aggravating circumstances the offender was found guilty of committing were

sufficient to outweigh the mitigating factors. This failure denied the appellant his

due process rights as guaranteed by the United States and Ohio Constitution[s].

{¶220} Proposition of Law No. 18: The Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution, Sections 10 and 16, Article I of the

Ohio Constitution and R.C. 2929.05 guarantee a convicted capital defendant a fair

and impartial review of his death sentence. The statutorily mandated

proportionality process in Ohio does not comport with this constitutional

requirement and thus is fatally flawed.

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{¶221} This court, in performing its proportionality review, should compare

Mr. LaMar’s sentence with other inmate defendant’s sentences received for crimes

committed during the Lucasville riot. Such comparison would guarantee Mr.

LaMar the rights set forth in the U.S. Constitution as well as those sought to be

protected by the Ohio Constitution and Ohio capital statutory framework.

{¶222} In performing this comparison this court will find that from

initiation of the charges through the trial and sentencing of Mr. LaMar, the

prosecution selectively sought to impose a heavier penalty on appellant than any

other inmate accused or convicted of killing inmates. Such selective prosecution

cannot withstand scrutiny and accordingly this court will find that Keith LaMar’s

death sentences are in violation of both U.S. and state constitutional principles.

{¶223} Proposition of Law No. 19: Repeatedly instructing that a jury’s

verdict is only a recommendation violates the Fifth, Eighth and Fourteenth

Amendments to the U.S. Constitution and Article I, Section[s] 2, 9, 10 and 16 of

the Ohio Constitution. The prejudice an appellant suffers from this constitutional

violation is further exacerbated by using the term “recommendation” on the actual

verdict forms.

{¶224} Proposition of Law No. 20: The Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and

16 of the Ohio Constitution establish the requirements for a valid death penalty

scheme. R.C. 2903.01, 2929.02, 2929.021, 2903.022, 2929.023, 2929.03, 2929.04

and 2929.05, Ohio’s statutory provisions governing the imposition of the death

penalty, do not meet the prescribed constitutional requirements and are

unconstitutional, both on their face and as applied.

__________________

Mark E. Piepmeier, Special Prosecuting Attorney, and William E. Breyer,

Assistant Special Prosecuting Attorney, for appellee.

Carol A. Wright and Kristin Burkett, for appellant.

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__________________

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