State v. Wogenstahl

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 344.]

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

[Cite as State v. Wogenstahl, 1996-Ohio-219.]

Criminal law—Aggravated murder—Death penalty upheld, when—Penalties and

sentencing—“Aggravating circumstances” against which mitigating

evidence is to be weighed are limited to specifications of aggravating

circumstances set forth in R.C. 2929.04(A)(1) through (8) alleged in

indictment and proved beyond a reasonable doubt—Improper comment by

prosecutor in penalty phase of capital trial—Death sentence vacated on

appeal and cause remanded for resentencing, when.

1. In the penalty phase of a capital trial, the “aggravating circumstances”

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

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

through (8) that have been alleged in the indictment and proved beyond a

reasonable doubt.

2. It is improper for prosecutors in the penalty phase of a capital trial to make

any comment before a jury that the nature and circumstances of the offense

are “aggravating circumstances.”

(No. 95-42—Submitted November 15, 1995—Decided March 6, 1996.)

APPEAL from the Court of Appeals for Hamilton County, No. C-930222.

__________________

{¶ 1} Peggy Garrett was first introduced to Jeffrey A. Wogenstahl,

appellant, in October 1991. During October and November 1991, appellant and

Peggy became casual acquaintances. At the time, Peggy resided in a two bedroom

apartment at 301 Harrison Avenue, Harrison, Ohio, with her five children: Eric

Horn, age sixteen, Justin Horn, age fifteen, Amber Garrett, age ten, Matthew

Garrett, age eight, and Shayna Perkins, age four. During October and November

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1991, appellant visited the apartment on several occasions and came to know

Peggy’s family.

{¶ 2} Appellant went to Peggy’s apartment on Saturday afternoon,

November 23, 1991. He asked Peggy if she had any plans for the evening. Peggy

told appellant that she had no plans, and appellant left following a brief

conversation. That night, Peggy put her three youngest children (Amber, Matthew

and Shayna) to bed for the evening. At approximately 10:30 p.m., she decided to

meet a friend, Lynn Williams, at a local bar. Justin was spending the weekend at a

friend’s house. Peggy left sixteen-year-old Eric in charge of the other children.

{¶ 3} Peggy met Lynn Williams at the “Escape” bar sometime between

11:00 p.m. and midnight. From there, the women drove Lynn’s car to the

Miamitown Lounge which was also known as “Hornsby’s.” At Hornsby’s, Peggy

and Lynn saw appellant at the bar. He was wearing a brown leather jacket and

jeans. Appellant joined the women for drinks and conversation. Appellant asked

Peggy where Justin was and what Eric and the other children were doing. Peggy

told appellant that Justin was away for the weekend, and that Eric was home baby-

sitting the children. At some point, the trio went outside to appellant’s car to smoke

marijuana.

{¶ 4} On Sunday morning, at approximately 2:15 a.m., appellant, Peggy

and Lynn drove Lynn’s car to the Flicker Inn. Later, the women drove appellant

back to Hornsby’s, where appellant’s car was parked. Appellant invited the women

to his apartment to smoke marijuana, but Peggy and Lynn told appellant that they

were going to the Waffle House restaurant. Peggy and Lynn then separated from

appellant and drove directly to the Waffle House. After the women had arrived at

the restaurant, a witness saw a car resembling appellant’s dark-brown four-door

1978 Oldsmobile Omega pull into and then out of the restaurant parking lot.

{¶ 5} At approximately 3:00 a.m., while the women were at the Waffle

House, appellant drove to Peggy’s apartment and spoke with Eric. According to

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Eric, appellant claimed that Peggy needed to see him (Eric) at Troy Beard’s house.

Beard was Peggy’s friend who lived approximately three blocks from the

apartment. Eric locked the door to the apartment, leaving the children unattended,

and drove with appellant to the vicinity of Beard’s residence. Appellant dropped

Eric off approximately one block from Beard’s apartment. According to Eric,

appellant said that he would drive around the block and then pick Eric up to drive

him home. When Eric arrived at the residence, Beard told Eric that he (Beard) had

not seen Peggy at all that evening. Eric left Beard’s apartment and waited for

appellant to drive him home. Appellant did not return. Eventually, Eric walked

home and found that the door to the apartment was unlocked. He checked on the

children and noticed that ten-year-old Amber was missing. However, Eric

mistakenly assumed that Amber might have been spending the night at a friend’s

house. Thus, he mentioned nothing to Peggy when she returned home later that

morning.

{¶ 6} On the morning of November 24, 1991, Vickie Mozena was working

at a United Dairy Farmers store in Harrison, Ohio, near the Ohio-Indiana border.

At approximately 3:15 a.m., Mozena saw a car resembling appellant’s Oldsmobile

drive past the store in the direction of Bright, Indiana. Mozena observed the

silhouette of a man driving the vehicle, and what appeared to be a young girl next

to him in the passenger’s seat. Between 3:45 and 4:00 a.m., Mozena saw the same

vehicle parked at a car wash across the street from the United Dairy Farmers store.

The vehicle pulled out of the car wash and into the farthest corner of the United

Dairy Farmers parking lot. The driver did not exit the vehicle for several minutes,

and Mozena thought that she was about to be robbed. However, appellant exited

the vehicle, came into the store, and purchased a pack of cigarettes. At that time,

Mozena noticed what appeared to be dirt or blood under appellant’s fingernails.

Later that morning, Mozena once again saw appellant’s car parked across the street

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at the car wash. According to Mozena, there was a man inside the car, presumably

cleaning the interior.

{¶ 7} Harold Borgman lived on Jamison Road between Harrison, Ohio, and

Bright, Indiana. Borgman’s home was located in a rural area of West Harrison,

Indiana, approximately four miles from Harrison. At 3:13 a.m. on the morning of

November 24, 1991, Borgman got out of bed to use the bathroom. Sometime later,

he looked out the window and saw a car driving very slowly on Jamison Road

toward the direction of Harrison. The driver pulled off to the side of Jamison Road,

stopped, and turned off the headlights. Borgman continued to watch for several

minutes, and observed two or three vehicles pass the parked car on Jamison Road.

{¶ 8} On November 24, at approximately 3:40 a.m., Brian Noel was driving

on Jamison Road toward Bright, Indiana. While driving near the location of

Borgman’s residence, Noel saw a late 1970’s model, dark-colored four-door

vehicle parked off to the side of Jamison Road, the vehicle facing the opposite

direction. Noel came to a rolling stop alongside the vehicle and observed a man

apparently retrieving something from the trunk of the automobile. The man was

wearing a dark jacket and bluejeans. Noel later identified appellant as the man he

had seen on Jamison Road in the early morning hours of November 24. He also

identified appellant’s 1978 Oldsmobile as the car that had been pulled off to the

side of Jamison Road.

{¶ 9} On November 24, at approximately 3:40 a.m., Kathy Roth was

driving on Jamison Road toward Bright, Indiana. While driving near the location

of Borgman’s residence, Roth saw a man wearing a brown leather jacket and

bluejeans standing near a parked car off to the side of Jamison Road. As Roth drove

past the vehicle, the man turned to face her, dropped his head, and then turned

around to face the woods. Roth later identified appellant as the man she had seen

on Jamison Road.

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{¶ 10} Frederick G. Harms was driving on Jamison Road on November 24,

at approximately 3:40 a.m. Harms also saw the vehicle parked off to the side of

Jamison Road. According to Harms, the vehicle resembled appellant’s 1978

Oldsmobile Omega.

{¶ 11} On Sunday afternoon, November 24, Peggy Garrett finally realized

that Amber was missing. At that time, Eric told Peggy about appellant’s 3:00 a.m.

visit to the apartment. Peggy and others went to appellant’s residence and knocked

on the door for over an hour. When appellant finally answered, Peggy asked him

why he had taken Eric to Troy Beard’s apartment earlier that morning. Appellant

stated that he had been “messing with Eric’s head,” and claimed to have no

knowledge of Amber’s whereabouts. On the evening of November 24, 1991,

appellant gave a similar statement to Officer Charles Lindsey of the Harrison Police

Department.

{¶ 12} On Monday, November 25, 1991, police executed a search warrant

at appellant’s residence. During the search, appellant was questioned concerning

his movements on the morning of November 24. Appellant admitted to having

visited the Harrison Avenue apartment on November 24 at approximately 3:00 a.m.

Appellant told police that he had duped Eric out of the Harrison Avenue apartment

as a practical joke. However, appellant stated that he went directly home to bed

after having taken Eric to the vicinity of Troy Beard’s apartment. Police then

requested that appellant accompany them to the Harrison Police Department.

Appellant agreed to go to the police station and asked for his leather jacket. Officer

Lindsey retrieved the jacket from the bedroom closet. Lindsey noticed that the

jacket was soaking wet and that the lining was discolored. According to police,

appellant explained that his cat had urinated on the jacket on Friday evening,

November 22, 1991. Appellant further explained that he had washed the jacket on

Friday night. Police were suspicious since appellant had worn the jacket on

Saturday night, November 23, 1991.

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{¶ 13} Police found several bloodstains in appellant’s bathroom. However,

it could not be determined whether the blood was human blood. The items seized

from appellant’s residence included drugs and drug paraphernalia. Police contacted

appellant’s parole officer, and a parole holder was placed against appellant. On

November 25, 1991, police also attempted to search a dumpster near appellant’s

apartment. However, the dumpster had been emptied earlier that morning. Two

witnesses had seen appellant near the dumpster on November 24, at approximately

5:15 a.m.

{¶ 14} On the morning of November 27, 1991, appellant made another

statement to law enforcement authorities. This time, appellant claimed that he had

driven Eric to the vicinity of Troy Beard’s apartment on November 24 because Eric

had wanted to deliver marijuana to Peggy. Appellant once again asserted that he

had proceeded directly home to sleep after dropping Eric off in the vicinity of

Beard’s residence.

{¶ 15} Meanwhile, the search for Amber Garrett continued. On November

27, 1991, Harold Borgman reported to police that he had seen a suspicious vehicle

on Jamison Road in the early morning hours of November 24. Borgman led police

to the location near his house where he had seen the suspicious vehicle. Sergeant

Kenneth J. Greves of the Indiana State Police searched the area and discovered

Amber’s partially frozen body down a steep embankment off to the side of Jamison

Road.

{¶ 16} The location where Amber’s body was discovered was heavily

wooded and overgrown with thorny bushes and vegetation. Amber was wearing a

dress and a pair of panties. Her dress had been rolled up from behind and pulled

down over her arms. She had been stabbed approximately eleven times, mostly in

the chest and neck. Additionally, she had been repeatedly struck in the head with

a blunt instrument. The blunt force injuries were consistent with having been

caused by an automobile jack handle or some other blunt stick or rod. Superficial

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wounds on the body indicated that a knife had been held to the base of Amber’s

neck. The body was covered with postmortem scratches that had apparently been

caused by the vegetation in the area. The evidence at the scene indicated that the

murder had occurred at a different location and that the killer had carried Amber’s

body through the dense vegetation.

{¶ 17} William L. Dean, a criminalist in the Trace Evidence Section of the

Hamilton County Coroner’s Laboratory, examined the leather jacket that appellant

had been wearing on the morning of Amber’s abduction. Thorn tips or “prickles”

were removed from small triangular tears in the jacket. Dean also examined a pair

of appellant’s shoes that were found to contain prickles and other plant material.

{¶ 18} Douglas W. Deedrick, a special agent with the Federal Bureau of

Investigation, compared the plant material recovered from appellant’s jacket and

shoes with known samples of vegetation collected from the area where the body

was discovered. Deedrick found that the plant material from appellant’s clothing

was similar to the vegetation collected from the crime scene. Additionally, Dr.

Robert D. Webster, a research botanist, concluded that there were no differences

between the vegetation recovered from appellant’s clothing and the type of

vegetation in the area where the body was discovered.

{¶ 19} Police found two car jacks in the trunk of appellant’s Oldsmobile, a

ratchet jack and a screw or “scissors” jack. The metal handle for the screw jack

was missing. There were no identifiable fingerprints anywhere in the vehicle. The

car was exceptionally clean, as if it had been thoroughly washed. However,

criminalists in the Trace Evidence Section of the Hamilton County Coroner’s

Laboratory found a very small bloodstain in appellant’s Oldsmobile. The specimen

was sent to the Serological Research Institute in California for testing. DNA was

extracted from the bloodstain and was tested using the HLA DQ (Haldo) Alpha

genetic marker system. The HLA DQ Alpha classification of the blood removed

from appellant’s vehicle was consistent with the HLA DQ Alpha classification of

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a known sample of Amber’s blood. According to Brian Wraxall, a forensic

serologist, Amber’s HLA DQ Alpha classification occurs in approximately 5.3

percent of the Caucasian population. The blood recovered from appellant’s vehicle

was not consistent with appellant’s blood or blood samples taken from Eric and

Justin Horn.

{¶ 20} Special Agent Deedrick of the Federal Bureau of Investigation found

a single pubic hair inside the crotch area of Amber’s panties. Deedrick compared

the pubic hair to known samples of pubic hair that had been combed and plucked

from appellant’s pubic region. According to Deedrick, appellant’s pubic hairs

exhibited the same microscopic characteristics as the pubic hair recovered from the

victim’s panties. Deedrick testified to a reasonable degree of scientific certainty

that the pubic hair recovered from the victim’s underpants had come from appellant.

Amber was prepubescent and, thus, the hair could not have come from her. Pubic

hair samples taken from Peggy Garrett, Eric Horn and Justin Horn did not match

the pubic hair recovered from Amber’s panties.

{¶ 21} Appellant was indicted by the Hamilton County Grand Jury for the

aggravated murder of Amber. Count One of the indictment charged appellant for

the purposeful killing of Amber during the commission of an aggravated burglary

and/or kidnapping. This count of the indictment carried three death penalty

specifications.1 Appellant was also indicted, in Counts Two and Three, for

kidnapping and aggravated burglary, respectively, with a specification alleging that

appellant had a prior (1985) aggravated felony conviction.

{¶ 22} Appellant was tried before a jury. Bruce Wheeler was the

prosecution’s final witness in the guilt/innocence phase of the trial. Wheeler and

1. The first death specification alleged that appellant had purposefully killed Amber during the

course of a kidnapping (R.C. 2929.04[A][7]), the second alleged that the killing occurred during the

course of an aggravated burglary (R.C. 2929.04[A][7]), and the third alleged that appellant had

killed Amber for the purpose of escaping detection, apprehension, trial, or punishment for having

committed the aggravated burglary and/or kidnapping (R.C. 2929.04[A][3]).

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appellant had been fellow inmates in the same “pod” at the Hamilton County Justice

Center. At trial, Wheeler testified that he had spoken with appellant on several

occasions concerning appellant’s involvement in the killing. According to

Wheeler, appellant had said that there was very little evidence against him because

he had been “too slick” and had “covered up” the evidence. Further, appellant

allegedly admitted to Wheeler that he (appellant) had entered the Garrett apartment

with a stolen key and had kidnapped Amber to have sex with her. Wheeler testified

that appellant “said he stuck it in her but * * * [did not] ejaculate * * * so there

would not be any evidence.” Additionally, appellant told Wheeler that he had

wanted to return Amber to the apartment because he thought he could get away

with having removed her from the residence. However, someone was at the Garrett

residence when appellant attempted to return Amber to her home. Thus, according

to Wheeler, appellant said that he decided to have “sex” with Amber once again.

Wheeler testified that appellant admitted stabbing Amber in the chest when she

refused his further sexual advances. According to Wheeler, appellant admitted

killing Amber, dumping the body, cleaning the car, and disposing of the evidence.

Appellant also told Wheeler that police had planted Amber’s blood in his

(appellant’s) car because appellant had “cleaned his car too well.”

{¶ 23} The defense presented several witnesses in the guilt phase of

appellant’s trial. Appellant testified on his own behalf and, among other things,

denied the charges against him.

{¶ 24} The jury found appellant guilty of all charges and specifications

alleged in the indictment. Following a mitigation hearing, the jury recommended

that appellant be sentenced to death for the aggravated murder of Amber Garrett.

The trial court accepted the jury’s recommendation and imposed the sentence of

death. The trial court also sentenced appellant for the kidnapping and aggravated

burglary convictions. On appeal, the court of appeals affirmed the judgment of the

trial court and upheld appellant’s death sentence.

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

__________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.

Breyer, Assistant Prosecuting Attorney, for appellee.

H. Fred Hoefle and Herbert E. Freeman, for appellant.

__________________

DOUGLAS, J.

{¶ 26} Appellant advances thirty-three propositions of law for our

consideration. (See Appendix, infra.) We have carefully considered each of

appellant’s propositions of law and have reviewed the death sentence for

appropriateness and proportionality. Upon review, and for the reasons that follow,

we affirm the judgment of the court of appeals and uphold the sentence of death.

I

{¶ 27} We have repeatedly held that this court is not required to address and

discuss, in opinion form, each and every proposition of law raised by the parties in

a death penalty appeal. See, e.g., State v. Scudder (1994), 71 Ohio St.3d 263, 267,

643 N.E.2d 524, 528. We adhere to that position today. Several issues raised by

this appellant have been addressed and rejected under similar circumstances in a

number of our prior cases. Moreover, a number of appellant’s arguments have been

waived. Upon a careful review of the record and the governing law, we fail to

detect any errors that would undermine our confidence in the outcome of

appellant’s trial. We are convinced that appellant received a fair trial, a fair and

reliable sentencing determination, and competent representation both at trial and on

appeal. We address, in opinion form, only those matters that merit some discussion.

II

{¶ 28} In his thirteenth proposition of law, appellant contends that the state

engaged in “egregious misconduct” during closing arguments in the penalty phase.

Specifically, appellant contends, among other things, that the prosecutors had

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argued to the jury that the nature and circumstances of the offense appellant was

found guilty of committing were “aggravating circumstances” the jury was required

to consider in recommending the sentence to be imposed for appellant’s aggravated

murder conviction. Therefore, appellant suggests that the state improperly injected

“nonstatutory aggravating circumstances” into the sentencing determination.

Similarly, in his sixth proposition of law, appellant contends that the trial court, in

its sentencing opinion, considered the nature and circumstances of the offense as

“nonstatutory aggravating circumstances.” Before addressing the specific

arguments raised in these propositions of law, it is important to recognize the

distinctions between two very different concepts embodied in Ohio’s death penalty

statutes, i.e., “aggravating circumstances” and “nature and circumstances of the

offense.”

A

Aggravating Circumstances v. Nature and Circumstances

{¶ 29} Contentions similar to those raised by appellant (that the nature and

circumstances of the offense were converted into “nonstatutory aggravating

circumstances”) arise in nearly every capital case we review. Recently, in State v.

Gumm (1995), 73 Ohio St.3d 413, 416-423, 653 N.E.2d 253, 259-264, we

attempted to clarify the law in this area. However, appellant suggests that Gumm

misapplied the law and/or that further clarification is required. Thus, we once again

review the interplay among R.C. 2929.03(D)(1) and (2) and 2929.04(B) to clarify

that it is completely improper for prosecutors in the penalty phase of a capital

murder trial to make any comment before a jury that the nature and circumstances

of the offense are “aggravating circumstances.”

{¶ 30} In Ohio, imposition of the death penalty for aggravated murder is

precluded unless one or more of the statutory aggravating circumstances set forth

in R.C. 2929.04(A)(1) through (8) are specified in the indictment and proved

beyond a reasonable doubt. See R.C. 2929.04(A). As we explained in Gumm,

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supra, 73 Ohio St.3d at 417, 653 N.E.2d at 260, “[i]n Ohio, a capital defendant is

tried and sentenced in a two-stage process. During the first phase (commonly

referred to as the ‘guilt phase’) the state must prove the defendant guilty beyond a

reasonable doubt of the crime of aggravated murder, and must also prove the

defendant guilty of at least one statutorily defined ‘aggravating circumstance’ as

set forth in R.C. 2929.04(A)(1) through (8). At the point in time at which the

factfinder (either a jury or three-judge panel) finds the defendant guilty of both

aggravated murder and an R.C. 2929.04(A) specification, the defendant has become

‘death-eligible,’ and a second phase of the proceedings (the ‘mitigation’ or

‘penalty’ or ‘sentencing’ or ‘selection’ phase) begins. R.C. 2929.03(C)(2) and

(D)(1).”

{¶ 31} R.C. 2929.03(D)(1) provides that in making a determination whether

a death sentence should be imposed, “[t]he court, and the trial jury if the offender

was tried by a jury, shall consider * * * any evidence raised at trial that is relevant

to the aggravating circumstances the offender was found guilty of committing or to

any factors in mitigation of the imposition of the sentence of death, shall hear

testimony and other evidence that is relevant to the nature and circumstances of

the aggravating circumstances the offender was found guilty of committing, the

mitigating factors set forth in division (B) of section 2929.04 of the Revised Code,

and any other factors in mitigation of the imposition of the sentence of death, and

shall hear the statement, if any, of the offender, and the arguments, if any, of counsel

for the defense and prosecution, that are relevant to the penalty that should be

imposed on the offender.” (Emphasis added.)

{¶ 32} Thus, R.C. 2929.03(D)(1) mandates that in a capital jury trial, the

court and the jury “shall consider” any evidence that is relevant to the “aggravating

circumstances” the defendant was found guilty of committing. The “aggravating

circumstances” referred to in R.C. 2929.03(D)(1) are the statutory aggravating

circumstances set forth in R.C. 2929.04(A)(1) through (8). Further, R.C.

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2929.03(D)(1) requires that the trial court and jury “hear” testimony and other

evidence that is relevant to the nature and circumstances of the aggravating

circumstances the offender was found guilty of committing. Again, the

“aggravating circumstances” referred to in the statute are the R.C. 2929.04(A)(1)

through (8) death-eligible aggravating circumstances that were required to have

been specified in the indictment. R.C. 2929.03(D)(1) also permits the factfinder to

hear the arguments of counsel that are relevant to the penalty that should be

imposed on the defendant.

{¶ 33} R.C. 2929.03(D)(2) provides, in part:

“Upon consideration of the relevant evidence raised at trial, the testimony,

other evidence, statement of the offender, arguments of counsel, and, if applicable,

the reports submitted pursuant to division (D)(1) of this section [pre-sentence

investigation and mental examination reports], the trial jury, if the offender was

tried by a jury, shall determine whether the aggravating circumstances the offender

was found guilty of committing are sufficient to outweigh the mitigating factors

present in the case. If the trial jury unanimously finds, by proof beyond a

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

of committing outweigh the mitigating factors, the trial jury shall recommend to the

court that the sentence of death be imposed on the offender.” (Emphasis added.)

{¶ 34} In Gumm, supra, 73 Ohio St.3d at 419, 653 N.E.2d at 261, we

reviewed the requirements of R.C. 2929.03(D)(1) and (2) and concluded that

“[t]hese statutes thus expressly require the jury to ‘consider’ both relevant trial

evidence as well as ‘other’ evidence relevant to the aggravating circumstances the

offender was found guilty of committing. Because findings of guilt are only made

as to the specifications contained in the indictment, it is clear that the reference in

these provisions to ‘aggravating circumstances the offender was found guilty of

committing’ means the R.C. 2929.04(A) specifications set forth in the indictment

and at issue in each case. The jury is thus required to ‘consider’ ‘other evidence’

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relevant to those specifications, including evidence relevant to the nature and

circumstances of those specifications.” (Emphasis added.) In Gumm, supra,

syllabus, we held that:

“Subject to applicable Rules of Evidence, and pursuant to R.C.

2929.03(D)(1) and (2), counsel for the state at the penalty stage of a capital trial

may introduce and comment upon (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 the aggravating circumstances specified in the indictment of

which the defendant was found guilty, (3) evidence rebutting the existence of any

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

presentence investigation report, where one is requested by the defendant, and (5)

the mental examination report, where one is requested by the defendant. Further,

counsel for the state may comment upon the defendant’s unsworn statement, if any.

(R.C. 2929.03[D], construed; State v. DePew [1988], 38 Ohio St.3d 275, 528

N.E.2d 542, affirmed and followed.)”

{¶ 35} R.C. 2929.04(B) provides that when one or more of the R.C.

2929.04(A)(1) through (8) specifications of aggravating circumstances contained

in the indictment are proved beyond a reasonable doubt, “the court, trial jury, or

panel of three judges shall consider, and weigh against the aggravating

circumstances proved beyond a reasonable doubt, the nature and circumstances of

the offense, the history, character, and background of the offender, and [all of the

factors listed in R.C. 2929.04(B)(1) through (7)].” Therefore, R.C. 2929.04(B)

clearly mandates that the nature and circumstances of the offense may only be

“weighed” against the R.C. 2929.04(A) specifications of aggravating

circumstances the defendant was found guilty of committing. We have recognized

this concept in a number of our prior cases.

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{¶ 36} For example, in State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR

273, 509 N.E.2d 383, we recognized that for purposes of determining whether a

capital defendant should be sentenced to death, the nature and circumstances of the

offense are not to be weighed against the R.C. 2929.04(A) specifications of

aggravating circumstances but, rather, are to be reviewed for any possible

mitigating value. Specifically, in addressing an argument that the trial court in

Steffen improperly considered the nature and circumstances of the offense, we

stated that:

“R.C. 2929.04(B) provides that the court, in determining whether death is

an appropriate penalty, ‘shall consider, and weigh against the aggravating

circumstances proved beyond a reasonable doubt, the nature and circumstances of

the offense * * *.’ * * * Thus, the court is required to review this factor. However,

appellant appears to contend that the trial court’s remarks on this subject reveal that

it viewed the nature and circumstances of the offense herein as aggravating rather

than mitigating as required by R.C. 2929.04(B). We do not agree. The statute

merely requires that the court consider this factor in determining the mitigating

factors to be weighed against the proven aggravating circumstances. Obviously,

the nature and circumstances of certain offenses will be such that no mitigating

feature can be extracted. By its statement on the gruesome and vicious nature of

the murder, the trial court herein was merely justifying its conclusion that no

mitigating factors can be gleaned from the nature and circumstances of this

particular offense. We find nothing improper in the trial court’s remarks.”

(Emphasis added in part and deleted in part.) Steffen, supra, 31 Ohio St.3d at 116-

117, 31 OBR at 278, 509 N.E.2d at 390.

{¶ 37} Similarly, in State v. Stumpf (1987), 32 Ohio St.3d 95, 99, 512

N.E.2d 598, 604, we stated that “R.C. 2929.04(B) requires the jury, trial court, or

three-judge panel to ‘consider, and weigh against the aggravating circumstances

proved beyond a reasonable doubt, the nature and circumstances of the offense *

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* *.’ * * * In a particular case, the nature and circumstances of the offense may

have a mitigating impact, or they may not. * * * Either way, they must be

considered.” (Emphasis added in part and deleted in part.) See, also, State v. Davis

(1988), 38 Ohio St.3d 361, 367-373, 528 N.E.2d 925, 931-936.

{¶ 38} Obviously, it is perfectly acceptable for the prosecution at the

penalty phase of a capital murder trial to argue that the specifications of aggravating

circumstances set forth in R.C. 2929.04(A)(1) through (8) that the defendant was

found guilty of committing outweigh the evidence in mitigation of the death

sentence. Further, it is perfectly acceptable for the state to present arguments

concerning the nature and circumstances of the offense. However, in light of the

foregoing discussion, it is wholly improper for the state to argue or suggest that the

nature and circumstances of the offense are “aggravating circumstances.” Any such

comment or suggestion is improper for at least two reasons. First, Ohio’s death

penalty scheme clearly provides that the “aggravating circumstances” against

which the mitigating evidence is to be weighed are limited to the death-eligible

statutory aggravating circumstances set forth in R.C. 2929.04(A)(1) through (8).

Second, R.C. 2929.04(B) specifically provides that the court, trial jury, or three-

judge panel “shall consider, and weigh against the aggravating circumstances

proved beyond a reasonable doubt, the nature and circumstances of the offense * *

*.” (Emphasis added.) Thus, in the penalty phase of a capital murder trial, any use

of the term “aggravating circumstances” must be confined to the statutory

aggravating circumstances set forth in R.C. 2929.04(A)(1) through (8).

Recognizing this, in Gumm, supra, 73 Ohio St.3d at 422, 653 N.E.2d at 263, we

issued a strong admonition that courts and prosecutors should refrain from referring

to the nature and circumstances of the offense as “aggravating circumstances.”

{¶ 39} At oral argument, appellant criticized our decision in Gumm,

suggesting that Gumm somehow renders Ohio’s entire death penalty scheme

unconstitutional. We disagree. However, upon a careful review of Gumm, we find

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certain errors in the body of that decision that seemingly cut across the grain of

Ohio’s death penalty scheme. In Gumm, supra, 73 Ohio St.3d at 420-421, 653

N.E.2d at 262, we stated that:

“We believe that a large part of the confusion which has developed in this

area is semantical in nature in that the term ‘aggravating circumstances’ has been

imprecisely employed to refer not only to the eight enumerated specifications of

aggravating circumstances of R.C. 2929.04(A), but also to any evidentiary factors

which tend to increase the likelihood that a death sentence will be imposed. The

nature and circumstances of a crime may be ‘aggravating’ in the sense that they

are relevant and tend to reinforce the conclusion that a death sentence should be

imposed. This does not mean that the facts surrounding a crime can be set forth in

the indictment as a specified statutory aggravating circumstance, nor may they be

deemed an ‘aggravating circumstance’ in terms of determining death-eligibility.

State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494 N.E.2d 1061. Thus,

the fact that a particular murder was, for instance, particularly cruel or heinous is

relevant to the determination of the appropriateness of actually imposing a death

sentence on a death-eligible perpetrator, even though the fact of cruelty or

heinousness would not, of itself, be sufficient to bring the crime within the scope

of any section of R.C. 2929.04(A), nor could that fact be used to cause the defendant

to become death-eligible.” (Emphasis added in part and deleted in part.)

{¶ 40} We now recognize that this language in Gumm might be construed

to suggest that the nature and circumstances of an offense (such as the cruel and

heinous manner in which it was committed) can be included on the aggravation

side of the statutory weighing process. However, as we have pointed-out, the nature

and circumstances of the offense may only enter into the statutory weighing process

on the side of mitigation. See R.C. 2929.04(B). Thus, we modify Gumm to the

extent that that opinion indicates anything to the contrary.

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{¶ 41} Again and again and again, we hold that in the penalty phase of a

capital trial, the “aggravating circumstances” against which the mitigating evidence

is to be weighed are limited to the specifications of aggravating circumstances set

forth in R.C. 2929.04(A)(1) through (8) that have been alleged in the indictment

and proved beyond a reasonable doubt. In this regard, it is improper for prosecutors

in the penalty phase of a capital trial to make any comment before a jury that the

nature and circumstances of the offense are “aggravating circumstances.”

B

Appellant’s Contentions

{¶ 42} In his thirteenth proposition of law, appellant challenges a number

of the prosecutor’s comments during the initial closing argument in the penalty

phase. However, appellant never objected to the prosecutor’s remarks at the time

they were made. Therefore, we find that appellant’s contentions of error based

upon the state’s initial closing argument have been waived.2 Accordingly, our

review of appellant’s contentions must proceed, if at all, under the plain error

analysis of Crim.R. 52(B). Plain error does not exist unless it can be said that but

for the error, the outcome of the trial would clearly have been otherwise. See, e.g.,

State v. Wickline (1990), 50 Ohio St.3d 114, 119-120, 552 N.E.2d 913, 919-920.

{¶ 43} In the state’s initial closing argument in the penalty phase, the

prosecutor discussed the three statutory aggravating circumstances appellant was

found guilty of committing. In discussing the R.C. 2929.04(A)(7) kidnapping

specification, the prosecutor stated:

2. We recognize that appellant moved for a mistrial at the conclusion of the state’s initial closing

argument based upon the prosecutor’s alleged improper comments. The motion was denied. In this

regard, appellant claims that he did “object” to the prosecutor’s comments. However, “[i]mproper

remarks of counsel during argument, unless so flagrantly improper as to prevent a fair trial, should

be at once objected to and exception taken; otherwise error cannot be predicated upon the remarks

alleged to have been improper.” State v. DeNicola (1955), 163 Ohio St. 140, 56 O.O. 185, 126

N.E.2d 62, paragraph three of the syllabus. See, also, State v. Johnson (1989), 46 Ohio St.3d 96,

102, 545 N.E.2d 636, 642.

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January Term, 1996

“The second aggravating circumstance becomes a lot more serious: the

kidnapping of Amber Garrett. What I would like you to consider when you think

back about that is what Amber Garrett went through during that kidnapping when

she was taken out of her bed. It was a very cold night. All she had on was a little

nightie and a pair of underwear. She did not have her glasses, she did not have her

shoes.

“At some point in time she woke up and she really did not know where she

was. She was in his car and obviously she could not see well or she might have

been able to recognize him at this point. What did she say to him? What went

through her mind as she felt that knife pressed against her neck? We know from

Dr. Kenny [the coroner] that there was not one or a couple but eleven superficial

lacerations. That would hurt. It obviously hurt a lot. This is a 10-year-old girl.

That is the kidnapping. That is the aggravated circumstance. What went through

her mind while all that was going on? That is something to consider.” (Emphasis

added.)

{¶ 44} The prosecutor’s comments in this regard could be considered

objectionable for two reasons. First, the prosecutor obviously invited the jury to

concentrate on what the victim experienced and was thinking in her last moments

of life. As we recognized in State v. Combs (1991), 62 Ohio St.3d 278, 283, 581

N.E.2d 1071, 1077, such argument could be considered error to the extent that it

invites the jury to speculate on facts not in evidence. Second, we are somewhat

troubled by the prosecutor’s statements: “That is the kidnapping. That is the

aggravated circumstance.” These statements are legally defensible since the

kidnapping was, in fact, the predicate for one of the R.C. 2929.04(A) specifications

of aggravating circumstances alleged in the indictment. However, the statements

were made in the midst of the prosecutor’s description of some of the nature and

circumstances of the crime and, thus, could be construed as suggesting that the

nature and circumstances of the offense were “aggravating circumstances.” In this

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regard, a much better approach3 for the closing argument would have been to

entirely separate the discussion of the statutory aggravating circumstances

appellant was found guilty of committing from the discussion of the nature and

circumstances of the crime. For instance, the prosecutor could have first listed the

three statutory aggravating circumstances at issue in the case as specified in the

indictment. As a separate portion of the argument to the jury, the prosecutor could

have then set forth a description of all relevant facts and circumstances surrounding

the offense—without referring to any such facts and circumstances as

“aggravating.” Again, we emphasize that prosecutors need to exercise an

abundance of caution to avoid suggesting or implying that the nature and

circumstances of the offense are “aggravating circumstances.”

{¶ 45} Next, the prosecutor went on to discuss the third statutory (R.C.

2929.04[A][3]) aggravating circumstance, to-wit, a killing to escape detection. In

this part of the initial closing argument, the prosecutor again invited the jury to

speculate concerning the victim’s thoughts as she was being stabbed to death:

“Think of the savageness of the killing he actually inflicted on her; ten or eleven

knife wounds, and she was again alert and aware during this, going into her chest,

going into her neck when she was able to fend some of these off. There was a cut

in her hand and one of the knife wounds went all the way through her arm. Again,

what went through that little girl’s mind at that point?” Clearly, the prosecutor

should have refrained from encouraging the jury to speculate as to the victim’s final

thoughts. Additionally, near the conclusion of the prosecutor’s initial closing

argument, he stated “[a]nd what, if anything, did she do to deserve this? Those are

the aggravating circumstances, ladies and gentlemen, that he is guilty of and that

you found him guilty of.” (Emphasis added.) With respect to these remarks, it is

3. We recognize, of course, that we have the advantage of “Monday morning quarterbacking”

whereas the prosecutor was required to make his decisions and comments during the “heat of the

battle.” We further recognize that our job, in this regard, is much easier than was his.

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January Term, 1996

not entirely clear whether the prosecutor was referring to the nature and

circumstances of the offense on the one hand or to the three statutory aggravating

circumstances that appellant was found guilty of committing on the other hand. In

this regard, we note that prosecutors should refrain from making any vague

comments in the penalty phase concerning precisely what the aggravating

circumstances are in a given case. Again, the only “aggravating circumstances” at

issue in the penalty phase of a capital trial are the R.C. 2929.04(A) specifications

of aggravating circumstances the defendant was found guilty of committing.

{¶ 46} Additionally, appellant challenges a number of comments made by

the prosecutor in the final closing argument in the penalty phase. During the final

closing argument, the prosecutor stated, in part:

“Now what were the aggravating circumstances? * * *

“* * * Mr. Piepmeier [the prosecutor who presented the initial closing

argument] explained it very eloquently what those aggravating things are. What

kind of person would commit the burglary of a friend’s house, knows they are not

going to be there, and returns to their house to burglarize and kidnap? What kind

of person is that? What kind of aggravating circumstance is that?

“What kind of aggravated circumstance is it that a 31-year-old man when

he’s doing this burglary and right before he gets the baby-sitter out of the house on

a cold November night with three small children in that apartment? Incredible

aggravation.

“He returns and now knows nobody is there. This is aggravation. This is

balancing on the end of this scale the mitigation and it is a simple balancing test.

He returns and takes a 10-year-old girl, takes a sleeping 10-year-old girl from her

warm bed which she is sharing with her little sister and her little brother.

Incredible in terms of an aggravating circumstance in this crime. He takes her

sound asleep from her home or half-asleep so quickly on this freezing cold night

and he removes her. There is not time to have shoes put on her, a coat put on her

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and she is half blind without her glasses, and what kind of aggravation is it? What

kind of person would commit that kind of a crime?

“He throws her in the car. We know from the witnesses and the

eyewitnesses that saw this person out on the road, that saw his car on the road which

was a very tight time frame. He didn’t get what he wanted from Amber and this

vicious man, probably within thirty minutes of kidnapping her.

“What aggravation do we further have? We have these hesitation marks on

Amber’s neck. I am sure you looked at and saw when you think of her. He stabs

her eleven times. This is all on the scale side of aggravation. He stabs this little

girl eleven times. The wound to the heart area is incredible in terms of aggravation.

“What did the coroner testify to? He ran a knife in her chest, withdrew it

partially and then stuck it back in her. That is on the aggravation side against his

mitigation. This exhibit that you saw back in the jury room depicts her struggle in

trying to fight him. That is on the aggravation side. That is on the aggravation

scale.

“He wanted to make sure though so he takes a blunt object and probably a

jack handle and delivers the shots to the head. She will never talk. For the purpose

of escaping detection, just as Mike Piepmeier said in his opening statement. Isn’t

that incredibly consistent, isn’t that incredibly consistent with the cleaning of the

car, the cleaning of his clothes, the lies he told the police, the continued lies he told

this courtroom and even the lies he told you in this courtroom today?

“Killing Amber and that aggravation connected with it that you’re weighing

against his mitigation that was presented today. He was cleaning, he was getting

rid of the witness. It is the ultimate cleaning. It was the ultimate selfish act. He

made the decision to kill her.” (Emphasis added.)

{¶ 47} Initially, we note that appellant failed to raise an objection to any of

the prosecutor’s remarks concerning what constituted “aggravation” in this case.

Thus, appellant’s arguments based upon the prosecutor’s remarks have been

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January Term, 1996

waived. Accordingly, our discretionary review of appellant’s contentions must

proceed, if at all, under the plain-error analysis of Crim.R. 52(B). See Wickline,

supra, 50 Ohio St.3d 114, 119-120, 552 N.E.2d 913, 919-920.

{¶ 48} We agree with appellant that the prosecutor’s final closing argument

was riddled with improper comments regarding the nature and circumstances of the

offense. Repeatedly, the prosecutor referred to the nature and circumstances of the

offense as “aggravation” or “aggravating circumstances.” Worse yet, the

prosecutor stated that such “aggravation” was to be balanced against the evidence

presented in mitigation. Such comments do not conform to Ohio’s death penalty

scheme for the reason stated in our discussion, supra.

{¶ 49} However, while many of the prosecutor’s comments in the closing

arguments (both the initial closing argument and the final closing argument) should

not have been made, we nevertheless conclude that the errors did not rise to the

level of plain error. We are persuaded that the prosecutor’s closing arguments to

the jury made no difference in the outcome of the trial, particularly in light of the

statutory aggravating circumstances appellant was found guilty of committing and

the lack of credible mitigating evidence presented by appellant. Moreover, the trial

court properly instructed the jury that the only “aggravating circumstances” at issue

in this case were the three specifications of aggravating circumstances the jury had

found appellant guilty of committing. The instruction was very clear in this regard,

and we assume that the jury followed the trial court’s instructions.

{¶ 50} We have been strongly urged, by some, to reverse appellant’s death

sentence based upon the prosecution’s closing arguments in this case. To do so, it

is argued, would send a very strong message that any reference to the nature and

circumstances of the offense as “aggravating circumstances” is not acceptable even

where, as here, there is no material prejudice to the defendant. We decline to do

so, trusting that our detailed clarification of this issue will suffice to put prosecutors

and trial judges on notice of what is acceptable and what is not.

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{¶ 51} In his sixth proposition of law, appellant contends that in its

sentencing opinion, the trial court considered the nature and circumstances of the

offense as “nonstatutory aggravating circumstances.” With respect to this issue,

the court of appeals stated, in part:

“[T]he thrust of the argument * * * concerns what Wogenstahl portrays as

the unlawful conversion of the nature and circumstances of the murder from their

rightful role as a mitigating factor to an unauthorized aggravating circumstance.

“Under R.C. 2929.04(B), the nature and circumstances of the offense are

specifically to be considered in the sentencing process in that they are to be

weighed, along with other delineated factors, ‘against the [specified] aggravating

circumstances proved beyond a reasonable doubt’ in the guilt phase of the

proceedings. It is now well accepted that what this permits a trial court to do in a

given case is to decide, upon its assessment of the weight of the evidence, that the

nature and circumstances of an offense have little, if any, value as a mitigating

factor, and to refer to that comparative lack of value as part of the explanation given

in the sentencing opinion for why the aggravating circumstances have been found

to outweigh the mitigating factors beyond a reasonable doubt. See, e.g., State v.

Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071 * * *.

“Our reading of the sentencing opinion in this case convinces us that the

office assigned to the nature and circumstances of Amber Garrett’s murder was

precisely the one envisioned by the applicable statute and the case law that the

statute has spawned. There was no inappropriate conversion here.”

{¶ 52} We agree with this assessment of the issue. We are convinced that

the trial court did not improperly consider the nature and circumstances of the

offense as nonstatutory aggravating circumstances.

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January Term, 1996

{¶ 53} Accordingly, for all of the foregoing reasons, we reject appellant’s

sixth and thirteenth4 propositions of law.

III

{¶ 54} In his twenty-third proposition of law, appellant suggests that

forensic serologist Brian Wraxall lacked the proper academic qualifications to

render an expert opinion concerning the HLA DQ Alpha (“Haldo Alpha”) testing

of the blood recovered from appellant’s vehicle. We disagree.

{¶ 55} With respect to Wraxall’s qualifications, appellant established at

trial that Wraxall had no college degree and was not a medical doctor. However,

“[u]nder Evid.R. 702, an expert may be qualified by knowledge, skill, experience,

training, or education to give an opinion which will assist the jury to understand

the evidence and determine a fact at issue.” (Emphasis added.) State v. Beuke

(1988), 38 Ohio St.3d 29, 43, 526 N.E.2d 274, 289. Here, the record reflects that

Wraxall was educated in England where he achieved a Higher National Certificate

in Applied Biology. Wraxall testified that his education in England is

approximately equivalent to the Bachelor of Science degree in the United States.

He has studied microbiology at a United States university and has attended

numerous symposiums in the field of criminalistics. He has published several

papers in the field of bloodstain analysis. From 1963 through 1977, Wraxall

worked for the Metropolitan Police Forensic Science Laboratory in London. He

began working for the Serological Research Institute in 1978, and has over fourteen

years of laboratory experience. Additionally, Wraxall has testified as an expert in

twenty states, including Ohio.

{¶ 56} Although Wraxall lacks a college degree and is not a medical doctor,

we find that the trial court did not abuse its discretion in allowing him to testify as

an expert based upon his extensive background and experience in blood analysis.

4. With respect to the host of additional arguments appellant has raised in his thirteenth proposition

of law, we find no prejudicial errors requiring reversal of the death sentence.

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Further, Wraxall’s expert opinions were based on his personal testing of the blood

samples that had been provided to him and, thus, the requirements of Evid.R. 703

have been satisfied.

{¶ 57} Next, appellant contends that Wraxall’s testimony should have been

stricken because Wraxall never offered an expert opinion that the blood recovered

from appellant’s vehicle was, in fact, Amber’s blood. We find that appellant’s

arguments demonstrate a complete lack of understanding of the purposes of

Wraxall’s testimony. Wraxall testified to a reasonable degree of scientific certainty

that the blood recovered from appellant’s vehicle was consistent with the Haldo

Alpha classification of a known sample of Amber’s blood. He also testified to a

reasonable degree of scientific certainty that the Haldo Alpha classification of

Amber’s blood occurs in approximately 5.3 percent of the Caucasian population.

The prosecution did not offer Wraxall’s testimony to establish specific

identification of the source of the blood recovered from appellant’s vehicle. The

Haldo Alpha test was incapable of establishing specific identification. Rather,

Wraxall’s testimony was probative that the source of blood could have come from

the victim, and was much more probative than the typical ABO blood grouping

evidence that is routinely considered in criminal trials. The testimony excluded

approximately ninety-five percent of the Caucasian population as potential sources

of the bloodstain recovered from appellant’s vehicle. Accordingly, we find no error

in the admission of Wraxall’s testimony.

{¶ 58} Furthermore, appellant points to the fact that the evidence at trial

established that appellant had purchased the 1978 Oldsmobile on November 18,

1991, i.e., approximately a week before Amber’s murder. On cross-examination,

Wraxall conceded that it was impossible to determine the age of the bloodstain

recovered from appellant’s vehicle. In this regard, appellant contends that the trial

court should have excluded the bloodstain evidence since the age of the bloodstain

could not be determined. However, we find that the question concerning the age of

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January Term, 1996

the bloodstain goes to the weight, and not to the admissibility, of the bloodstain

evidence. In any event, appellant’s arguments in this regard have been waived.

{¶ 59} Accordingly, we reject appellant’s twenty-third proposition of law.

IV

{¶ 60} In his twenty-fourth proposition of law, appellant challenges the trial

court’s refusal to suppress the testimony of two witnesses who identified appellant

as the man they had seen on Jamison Road in the early morning hours of November

24, 1991. Appellant contends that the trial court erred by refusing to suppress the

identification testimony of Brian Noel and Kathy Roth. We disagree.

{¶ 61} Noel initially identified appellant on Thursday, November 28, 1991,

at a lineup conducted at the Hamilton County Justice Center. At that time, appellant

had not been charged with a crime and, thus, was not represented by counsel.

Appellant concedes that he had no Sixth Amendment right to counsel at the lineup

because he had not been formally charged with a crime. See Kirby v. Illinois

(1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Nevertheless, appellant

invites us to find that he had a right to counsel under Section 10, Article I of the

Ohio Constitution. However, appellant has presented us with no compelling

reasons why Ohio constitutional law should differ from the federal law on this

issue. Moreover, a videotape of the lineup reveals that it was conducted in an

appropriate manner. At trial, Noel positively identified appellant as the man he had

seen on Jamison Road on the night in question. The trial court did not err in refusing

to suppress Noel’s identification testimony.

{¶ 62} Likewise, appellant has failed to demonstrate any impropriety by the

state with respect to Roth’s identification of appellant. In State v. Brown (1988),

38 Ohio St.3d 305, 310, 528 N.E.2d 523, 532, we held that “[w]here a witness has

been confronted by a suspect before trial, that witness’ identification of the suspect

will be suppressed if the confrontation procedure was unnecessarily suggestive of

the suspect’s guilt and the identification was unreliable under the totality of the

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circumstances. Manson v. Brathwaite (1977), 432 U.S. 98 [, 97 S.Ct. 2243, 53

L.Ed.2d 140].”

{¶ 63} Police showed Roth a photo array comprised of six photographs

shortly after Amber’s body was discovered. Roth was unable to positively identify

appellant. Almost a year later, a prosecutor showed Roth a different photo array.

At that time, Roth identified appellant’s picture, but expressed some reservations

since appellant’s face and hair as depicted in the photograph appeared “fuller” than

when she had seen him on Jamison Road. Roth was then shown a single black-

and-white photograph of appellant which she positively identified. At trial, Roth

expressed no reservations in identifying appellant as the man she had seen on

Jamison Road. Appellant suggests that the state acted improperly in obtaining

Roth’s identification of appellant. However, the record does not support appellant’s

contentions in this regard.

{¶ 64} Appellant also apparently suggests that Vickie Mozena’s

identification of appellant was “sufficiently uncertain” and resulted from overly

suggestive police practices. However, a review of Mozena’s testimony reveals that

appellant’s argument is completely unfounded. Mozena was shown a photo array

shortly after the murder and, without hesitation, identified appellant as the man she

had seen at the United Dairy Farmers store on the night of Amber’s disappearance.

Mozena testified at trial that she thought appellant was about to rob her when he

entered the United Dairy Farmers store. Thus, Mozena had good reason to focus

her attention on appellant and to remember him. Moreover, Mozena sold appellant

a pack of cigarettes and had seen him in the store on at least one other occasion. At

trial, Mozena expressed no doubt whatsoever that the man she had seen on the

morning of November 24, 1991 was, in fact, appellant. There is no evidence to

suggest that Mozena’s identification of appellant was the product of impermissible

police investigatory tactics.

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{¶ 65} Accordingly, appellant’s twenty-fourth proposition of law is not well

taken.

V

{¶ 66} In his twenty-fifth proposition of law, appellant contends that the

evidence is insufficient to establish his identity as the perpetrator of the crimes. We

disagree. In reviewing the sufficiency of the evidence, “the relevant question is

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

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

beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S.

307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. The weight to be given the

evidence and the credibility of the witnesses are issues for the jury to determine.

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

paragraph one of the syllabus. Upon a thorough review of the record, we are

absolutely convinced that the evidence in this case was more than sufficient to

prove appellant’s guilt beyond a reasonable doubt. In this proposition, appellant

essentially requests that we evaluate the credibility of witnesses and resolve

evidentiary conflicts in his favor. This we refuse to do. See, generally, State v.

Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, 1231.

{¶ 67} In his twenty-sixth proposition of law, appellant urges that his

convictions are against the manifest weight of the evidence. However, appellant

readily concedes that this court does not, generally, weigh the evidence. See State

v. Cooey (1989), 46 Ohio St.3d 20, 26, 544 N.E.2d 895, 905-906. Therefore, having

found that the evidence of appellant’s guilt is legally sufficient to sustain his

convictions, we reject appellant’s arguments concerning the manifest weight of the

evidence. Furthermore, we note, in passing, that the direct and circumstantial

evidence in this case overwhelmingly establishes appellant’s guilt of all charges

and specifications.

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{¶ 68} Accordingly, we reject appellant’s twenty-fifth and twenty-sixth

propositions of law.

VI

{¶ 69} Appellant had a prior (1985) aggravated burglary conviction. At

trial, the state informed the court of its intention to call Officer Kent Miller to testify

concerning the circumstances of appellant’s prior conviction. The prosecutor stated

that Miller’s testimony would be used to establish the prior aggravated felony

specifications in connection with Counts Two and Three of the indictment.

Moreover, the prosecutor stated that “[i]n addition, Judge, we won’t offer his

[Miller’s] testimony only for that purpose. We are also going to [R.C.] 2945.59[A]

* * *, Evidence Rule 404[B], what is [oftentimes] referred to as same or similar

offenses. We think that it is relevant to prove defendant’s scheme, plan or system

in perpetrating a particular offense, particularly this [1989] aggravated burglary.”

The prosecutor explained to the trial judge that the prior burglary and the burglary

in this case both “involved people he [appellant] had been with or visited with the

day before, and in both offenses he utilized some rouse [sic ruse] to get the occupant

out of the home so he could commit the burglary. In either cases [sic] there was a

sign of force and, finally, he used an alibi when he was confronted that he had gone

straight home and gone to bed and didn’t know anything about the burglary.” The

trial court ruled in favor of allowing Miller’s testimony pursuant to R.C. 2945.59

and Evid.R. 404(B), and to establish the prior aggravated felony specifications in

Counts Two and Three of the indictment.

{¶ 70} In his twenty-first proposition of law, appellant contends that the

trial court committed reversible error in allowing Miller to testify concerning

appellant’s 1985 aggravated burglary conviction. We disagree.

{¶ 71} R.C. 2945.59 provides that:

“In any criminal case in which the defendant's motive or intent, the absence

of mistake or accident on his part, or the defendant's scheme, plan, or system in

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doing an act is material, any acts of the defendant which tend to show his motive

or intent, the absence of mistake or accident on his part, or the defendant's scheme,

plan, or system in doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto, notwithstanding that such

proof may show or tend to show the commission of another crime by the

defendant.”

{¶ 72} Evid.R. 404(B) provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

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

{¶ 73} Evidence of other crimes, wrongs or bad acts independent of, and

unrelated to, the offenses for which a defendant is on trial is generally inadmissible

to show criminal propensity. See State v. Woodard (1993), 68 Ohio St.3d 70, 73,

623 N.E.2d 75, 78, and Wickline, supra, 50 Ohio St.3d 114, 120, 552 N.E.2d 913,

920. However, the evidence of appellant’s 1985 aggravated burglary conviction

was not used for an impermissible purpose. We agree with the court of appeals’

determination that there are “striking” similarities between appellant’s 1985

conviction and the aggravated burglary in the case at bar. The similarities tended

to establish a number of the items enumerated in R.C. 2945.59 and Evid.R. 404(B).

Thus, the evidence of appellant’s prior conviction was admissible for that limited

purpose. See State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682, paragraph

one of the syllabus.

{¶ 74} Appellant protests that the prior offense was “dissimilar” to the

aggravated burglary committed in this case. However, as we recognized in State v.

Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus, “[o]ther acts forming

a unique, identifiable plan of criminal activity are admissible to establish identity

under Evid.R. 404(B). * * * Although the standard for admissibility is strict, the

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other acts need not be the same as or similar to the crime charged.” Moreover, we

note that Miller’s testimony concerning the prior aggravated burglary conviction

was clearly admissible because the prosecution bore the burden of establishing the

prior aggravated felony specification in connection with Counts Two and Three of

the indictment.

{¶ 75} Accordingly, appellant’s twenty-first proposition of law is not well

taken.

VII

{¶ 76} Appellant was found guilty of three death penalty specifications in

connection with the aggravated murder. The first specification alleged that the

killing occurred during the course of a kidnapping (R.C. 2929.04[A][7]). The

second specification alleged that the killing occurred during the course of an

aggravated burglary (R.C. 2929.04[A][7]). The third alleged that appellant had

killed Amber for the purpose of escaping detection, apprehension, trial, or

punishment for having committed the aggravated burglary and/or kidnapping (R.C.

2929.04[A][3]).

{¶ 77} In his first proposition of law, appellant contends that the trial court

should have merged the three aggravating circumstances prior to the penalty phase

since, according to appellant, the three aggravating circumstances were duplicative.

We disagree.

{¶ 78} In State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473

N.E.2d 264, paragraph five of the syllabus, this court held that:

“In the penalty phase of a capital prosecution, where two or more

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

and are thus duplicative, the duplicative aggravating circumstances will be merged

for purposes of sentencing. Should this merging of aggravating circumstances take

place upon appellate review of a death sentence, resentencing is not automatically

required where the reviewing court independently determines that the remaining

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aggravating circumstances outweigh the mitigating factors beyond a reasonable

doubt and that the jury's consideration of duplicative aggravating circumstances in

the penalty phase did not affect the verdict.”

{¶ 79} Here, the three aggravating circumstances appellant was found

guilty of committing were not duplicative. The evidence at trial, if accepted,

established that appellant broke into an occupied structure to kidnap ten-year-old

Amber Garrett. He forcibly removed Amber from the apartment to use her for his

own sexual gratification. Appellant physically restrained Amber and bound her

arms in the clothing she was wearing. A knife was held to Amber’s neck. She was

transported in appellant’s vehicle across the Ohio-Indiana border. At some point,

appellant killed Amber when he realized that he could not return her to the

apartment without being identified as the perpetrator of the aggravated burglary

and/or kidnapping offenses.

{¶ 80} In State v. Waddy (1992), 63 Ohio St.3d 424, 448, 588 N.E.2d 819,

837, we recognized that aggravated burglary is not implicit within kidnapping, and

that kidnapping is not implicit within aggravated burglary. In Waddy, we held that

although Waddy had been convicted of two R.C. 2929.04(A)(7) death penalty

specifications (i.e., aggravated burglary and kidnapping), the specifications were

not duplicative. Id. We reach the same conclusion here. Further, the R.C.

2929.04(A)(3) aggravating circumstance in the case at bar can clearly be viewed as

independent of the two R.C. 2929.04(A)(7) aggravating circumstances appellant

was found guilty of committing. The aggravating circumstances appellant was

found guilty of committing did not arise out of the same act or indivisible course of

conduct. Therefore, merger was not required. Moreover, given the dearth of

mitigating evidence in this case, we are convinced beyond a reasonable doubt that

the jury would have reached the same verdict in the penalty phase even if the three

aggravating circumstances had been merged.

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{¶ 81} Accordingly, we reject appellant’s first proposition of law.

Similarly, we reject the arguments in support of appellant’s second, third, and

fourth propositions of law which assume that the aggravating circumstances

appellant was found guilty of committing should have been merged at trial and on

appeal.

VIII

{¶ 82} Having considered each of appellant’s propositions of law, we must

now independently review the death sentence for appropriateness (also raised in

appellant’s twenty-seventh proposition of law) and proportionality. Again, we find

that the three specifications of aggravating circumstances appellant was found

guilty of committing are clearly shown on the record before us.

{¶ 83} In mitigation, appellant presented the testimony of friends, family

and others. The witnesses were aware of appellant’s criminal history, and testified

that appellant had reformed his life and had changed for the better in the months

preceding the murder. In an unsworn statement, appellant proclaimed his

innocence, challenged the state’s evidence, and expressed sympathy to Amber’s

family. Defense counsel urged the jury to consider, as mitigating, that Amber

Garrett died quickly and that she was neither raped nor tortured. Moreover, defense

counsel urged the jury to spare appellant’s life and suggested that the real killer was

yet to be identified.

{¶ 84} The trial court and court of appeals apparently found no credible

mitigating evidence and, upon a review of the record, neither do we. Accordingly,

we find that the aggravating circumstances appellant was found guilty of

committing outweigh the evidence presented in mitigation beyond a reasonable

doubt.

{¶ 85} As our final task, we have undertaken a comparison of the death

sentence in this case to those cases in which we have previously imposed the death

penalty. We have previously imposed the death sentence in cases involving murder

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during the course of a kidnapping (see, e.g., Scudder, supra, 71 Ohio St.3d 263,

643 N.E.2d 524), murder during the course of an aggravated burglary (see, e.g.,

State v. Bonnell [1991], 61 Ohio St.3d 179, 573 N.E.2d 1082), and murder to escape

detection (see, e.g., State v. Burke [1995], 73 Ohio St.3d 399, 653 N.E.2d 242).

Appellant’s death sentence is neither excessive nor disproportionate.

{¶ 86} Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,

concur.

__________________

APPENDIX

{¶ 87} “Proposition of Law No. 1: Specifications under R.C.

2929.04(A)(3) and (A)(7) are duplicative, and must be merged prior to the weighing

by the sentencing jury, the trial judge, and an appellate court considering the

appropriate sentence in a capital case. The failure to merge such specifications

constitutes a violation of the rights of the accused under the United States

Constitution and the Ohio Constitution as well where the death sentence is imposed

thereafter.

{¶ 88} “Proposition of Law No. 2: The power conferred by R.C. 2929.05

upon appellate courts to review aggravating and mitigating factors, and to

determine the appropriateness of a given death sentence, is subordinate to the right

of the accused to trial by jury under Art. I. §§ 5 and 10 of the Ohio Constitution.

{¶ 89} “Proposition of Law No. 3: Unless it can fairly be held beyond a

reasonable doubt that penalty phase error in a capital trial had no effect upon the

jury’s sentencing verdict, appellate courts are rendered powerless by the right to

trial by jury set forth in the Ohio Constitution, Art. I. §§ 5 and 10, from purporting

to ‘cure’ the error and to affirm the death sentence; any such affirmance violates

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the right of the accused to trial by jury, and the death sentence must be vacated and

set aside.

{¶ 90} “Proposition of Law No. 4: The affirmance of a death sentence by

an appellate court which has reweighed the aggravating and mitigating factors

without merging specifications required to be merged, where the jury which

recommended the death sentence upon unmerged specifications, and the trial judge

also did not merge the specifications in determining the sentence, constitutes a

violation of the right of the accused under the Eighth Amendment to have the death

sentence imposed only after the proper procedures have been followed under the

state scheme for imposing the death sentence, and also constitutes a violation of the

right to due process of law in that such appellate reweighing abrogates the liberty

interest created by state law, which requires jury participation in the capital

sentencing process.

{¶ 91} “Proposition of Law No. 5: Where a trial court, in its opinion

justifying a death sentence, incorporates verbatim therein as the trial court’s own

conclusions negative statements about the accused made in the prosecutor’s

opening statement five weeks prior to the sentencing proceedings, and also

incorporates practically verbatim from similar opinions of other judges, and of the

same judge, in prior capital cases, conclusions purportedly resulting from the

sentencing process in the case at bar, then the offender has been denied his Eighth

Amendment right to individualized and independent consideration by the trial court

of the appropriate sentence in his case, and his Fourteenth Amendment right to due

process of law.

{¶ 92} “Proposition of Law No. 6: Where, in a capital case, the sentencing

court considers and weighs invalid or improper aggravating factors in imposing the

death sentence, that sentence offends the Eighth Amendment to the Constitution of

the United States, and the right to due process under the Fourteenth Amendment,

and their counterparts in the Ohio Constitution, and must be reversed.

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{¶ 93} “Proposition of Law No. 7: The defendant in a capital case is entitled

to 12 peremptory jury challenges, and the restriction of the defense to 6 peremptory

challenges violates Ohio law and the rights of the accused to a fair and impartial

jury under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution,

and under Art. I. §§ 5 and 9 of the Ohio Constitution.

{¶ 94} “Proposition of Law No. 8: The denial of the right of the accused to

jury instructions as to the mitigating factors of residual doubt and mercy violates

the right of the accused to consideration by the sentencer in a capital prosecution of

all relevant mitigating factors, in violation of his rights under the Eighth

Amendment to the Constitution of the United States, to due process under the

Fourteenth Amendment, and to his rights under the Ohio Constitution, Art. I. §§ 9

and 16.

{¶ 95} “Proposition of Law No. 9: The application against the accused by

an intermediate appellate court of a change in the law occurring between the

imposition of a death sentence and the decision of the appellate court to affirm,

which change deprives the accused of the benefit of mitigating factors to which he

was entitled when his case was tried, violates his protection against ex post facto

laws, in violation of Art. I. § 10 of the United States Constitution, and Art. II. § 28

of the Ohio Constitution, as well as R.C. 1.48.

{¶ 96} “Proposition of Law No. 10: The trial court committed error

prejudicial to appellant’s Eighth Amendment and due process rights in permitting

the prosecution to argue that the jury’s death verdict was only a recommendation,

and also in instructing the jury, and providing verdict forms to the effect that the

jury’s verdict was only a recommendation, and was not binding upon the trial court.

{¶ 97} “Proposition of Law No. 11: The denial of defense requests for

funds to retain the services of an investigator, and for a mitigation specialist, denied

appellant the right to the equal protection of the laws, secured to him by the

Fourteenth Amendment to the U.S. Constitution, and rendered his death sentence

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constitutionally infirm under the Eighth Amendment, as well as violating his right

to due process of law under the U.S. and Ohio Constitutions.

{¶ 98} “Proposition of Law No. 12: Where the prosecution, at the penalty

phase of a capital prosecution, is permitted, over objection and motions for mistrial,

to adduce evidence of a single incident of a prior ‘bad act’ occurring ten years prior

to the offense at bar, and the nature of such act, and even its existence, was not

shown to have occurred; the accused was not indicted for a specification based upon

such incident; and no conviction resulted from such incident, then the imposition

of the death sentence was the result of unconstitutional weighing and consideration

of a nonstatutory aggravating factor, the right of the accused under the Eighth and

Fourteenth Amendments has been violated, and reversal of the death sentence is

required.

{¶ 99} “Proposition of Law No. 13: Egregious misconduct by the

prosecutor in the penalty phase of capital proceedings requires reversal of the death

sentence, and where the prosecutor, in the guise of rebuttal, offers grossly

prejudicial and inadmissible evidence of a nonstatutory aggravating factor, and his

final argument for death argues nonstatutory aggravating factors, misstates the

evidence, contains inflammatory remarks and invective against the accused and his

counsel, a death sentence based on a jury verdict following such arguments violates

due process and the Eighth Amendment of the United States Constitution, and their

counterparts in the Ohio Constitution.

{¶ 100} “Proposition of Law No. 14: It is error for the trial court in a capital

prosecution to refuse a defense request to submit a questionnaire promulgated by

defense counsel to prospective jurors prior to voir dire, in violation of the rights of

the accused under the Eighth and Fourteenth Amendments to the Constitution of

the United States, and Art. I. §§ 9 and 16 of the Ohio Constitution.

{¶ 101} “Proposition of Law No. 15: It is error for the trial court in a capital

prosecution to refuse a defense request to conduct individual, sequestered voir dire,

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in violation of the rights of the accused under the Eighth and Fourteenth

Amendments to the Constitution of the United States, and Art. I. §§ 9 and 16 of the

Ohio Constitution.

{¶ 102} “Proposition of Law No. 16: It is error for the trial court in a capital

prosecution to refuse a defense request to argue first and last to the jury at the

penalty phase of the prosecution, in violation of the rights of the accused under the

Eighth and Fourteenth Amendments to the Constitution of the United States, and

Art. I. §§ 9 and 16 of the Ohio Constitution.

{¶ 103} “Proposition of Law No. 17: It is error for the trial court in a capital

prosecution to refuse a defense request for separate juries for the guilt and, if

necessary, the penalty phases of the prosecution, in violation of the rights of the

accused under the Eighth and Fourteenth Amendments to the Constitution of the

United States, and Art. I. §§ 9 and 16 of the Ohio Constitution[.]

{¶ 104} “Proposition of Law No. 18: The Ohio death penalty statutes are

unconstitutional, violating the Eighth and Fourteenth Amendment proscription of

cruel and unusual punishments, the Fourteenth Amendment guarantees to due

process of law and to the equal protection of the laws, and also violating the

concomitant provisions of the Ohio Constitution.

{¶ 105} “Proposition of Law No. 19: A conviction and death sentence for

aggravated murder must be reversed as violations of the fundamental fairness

required by the Due Process Clause of the Fourteenth Amendment, and the Sixth

Amendment of the right to trial before a fair and impartial jury, as well as their

counterparts in the Ohio Constitution, as well as the Eighth Amendment prohibition

against cruel and unusual punishment, where the conviction and death sentence

were obtained through use of repetitive, cumulative, photographs of the corpse of

the deceased, the net prejudicial effect of which far outweighed their probative

value.

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{¶ 106} “Proposition of Law No. 20: Unless and until the accused puts his

character in issue, it is improper, prejudicial error to permit the state to present

evidence in its case in chief purporting to demonstrate that the accused is a bad

person, in violation of the right of the accused to due process of law and to a fair

and impartial jury, under the Sixth and Fourteenth Amendments, respectively, to

the Constitution of the United States, and, where a death sentence is the result of

the proceedings, in violation of the Eighth Amendment as well; similar rights

protected by the Ohio Constitution were similarly violated.

{¶ 107} “Proposition of Law No. 21: It is prejudicial error, and a violation

of the right of the accused to due process of law, secured by the Fourteenth

Amendment to the Constitution of the United States, to admit evidence of a prior

offense which is temporally remote, and not at all similar to the offense in the case

at bar, under the purported ‘same and similar act’ exception to the general rule that

evidence of prior criminal conduct is not admissible to prove an element of the

subsequent offense then being tried.

{¶ 108} “Proposition of Law No. 22: A death sentence must be reversed as

contrary to the Revised Code, as well as the Eighth Amendment, where the trial

court fails to instruct the jury that the aggravating circumstance under R.C.

2929.04(A)(7) contains two mutually exclusive alternatives, and thus permits

conviction of the aggravating circumstance upon less than a unanimous vote of the

jury; such an error is also an independent violation of the right of the accused to

due process of law; similar rights secured by the Ohio Constitutional [sic] are also

violated thereby.

{¶ 109} “Proposition of Law No. 23: Admission of an expert opinion with

respect to a Haldo-Alpha blood test insufficient to establish to a reasonable

scientific certainty that blood found in the defendant’s auto was that of the deceased

victim, where the expert possesses insufficient expertise, and where the defendant

owned to [sic the] auto for but three days prior to the offense, and where the blood

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January Term, 1996

removed from the defendant’s auto could have been there as long as ten years, is

prejudicial error, and a denial of due process.

{¶ 110} “Proposition of Law No. 24: Where the identification of the

accused by a witness is the result of overly suggestive police investigative tactics,

the refusal of the trial court to suppress the witness’ identification testimony

violates the right of the accused to due process of law, requiring reversal.

{¶ 111} “Proposition of Law No. 25: Where the state fails to prove beyond

a reasonable doubt that the accused is the perpetrator of the crimes with which he

has been charged, convictions for aggravated murder, aggravated burglary and

kidnapping, and the capital specifications attendant thereto, must be reversed as

contrary to the right of the accused to due process of law under the Ohio and federal

Constitutions.

{¶ 112} “Proposition of Law No. 26: Convictions for aggravated murder

which are contrary to the manifest weight of the evidence must be reversed, as

contrary to the right of the accused to due process of law under the Ohio and federal

Constitutions.

{¶ 113} “Proposition of Law No. 27: The aggravating circumstances

appellant was found guilty of violating do not outweigh the mitigating factors, and

hence the death sentence imposed upon appellant violates his rights under the

Eighth and Fourteenth Amendments to the United States Constitution, and violate

Ohio law as well.

{¶ 114} “Proposition of Law No. 28: Where convictions of capital murder

and related offenses is [sic] tainted by prejudicial prosecutorial misconduct which

deprives the accused of a fair trial, those convictions violate the fundamental

fairness required by due process, and the conviction must be reversed as violative

of the Ohio and federal Constitutions.

{¶ 115} “Proposition of Law No. 29: A death sentence following a verdict

of a jury from which one or more venirepersons were improperly excused because

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of their views with respect to capital punishment violates the right of the accused

to a fair and impartial jury under the Sixth, Eighth and Fourteenth Amendments to

the United States Constitution, and their counterparts under the Ohio Constitution.

{¶ 116} “Proposition of Law No. 30: Where one on trial for a capital crime

is denied the effective assistance of counsel, in violation of his right thereto under

the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United

States, and under the Ohio Constitution, Art. I. § 10, his conviction and sentence

must be reversed.

{¶ 117} “Proposition of Law No. 31: Where appellate counsel fail to raise

on appeal the issue of ineffectiveness of trial counsel in failing to object to

prejudicial prosecutorial misconduct in argument, the accused has been denied the

effective assistance of appellate counsel secured to him by the Sixth and Fourteenth

Amendments to the Constitution of the United States, and by Art. I. § 10 of the

Ohio Constitution.

{¶ 118} “Proposition of Law No. 32: Where, during a criminal trial, there

are multiple instances of error, and the cumulative effect of such errors deprives the

accused of a fair trial and undermines the reliability of the conviction and the

sentence of death imposed upon a jury verdict, the rights of the accused to due

process and to be free from cruel and unusual punishment, under the Fourteenth

and Eighth Amendments, respectively, of the United States Constitution, and their

corollaries in the Ohio Constitution, have been violated, requiring reversal.

{¶ 119} “Proposition of Law No. 33: To comport with due process under

the United States and Ohio Constitutions, and the Ohio capital statutes, for purposes

of proportionality review, death sentences must be compared with all other cases

within the jurisdiction in which the death sentence was imposed, as well as those

capital cases in which it was not imposed.”

42