# Appendix — Mitchell, Warden v. Davis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1893%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2004 - **Citation:** 542 U.S. 945 ## Text @owt, U.8. fF \ FiLe® ©‘) ) ; YY J OB 151 yu 242003 No. In The Supreme Court Of The United States BETTY MITCHELL, Warden, Petitioner, Vv. WILEY DAVIS, JR., Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT APPENDIX JIM PETRO Attorney General of Ohio DOUGLAS R. COLE* State Solicitor *Counsel of Record CHRISTOPHER D. STOCK Deputy Solicitor 30 East Broad Street, 17th FI. Columbus, Ohio 43215 614-466-8980 614-466-5087 Fax Counsel for Petitioner enh CMM IE MIN ra TABLE OF CONTENTS Appendix A: Opinion of the United States Court of Appeals for the Sixth Circuit, 318 F.3d 682 (6th Cir. MID; CODES ©, TINS siscsessisnsisrsniteseniinvinionsinesvisasiiins Appendix B: Sixth Circuit’s Decision Denying Warden’s Petition for Rehearing..........ccccccsesceseseseesees Appendix C: Opinion of the United States District Court for the_Northern District of Ohio, 100 F. Supp.2d 607 (N.D. Ohio 2000), denying Davis’s petition for a writ of habeas COrpuUS .........cccecsesceseseseeeees Appendix D: Ohio Supreme Court’s Published Decision on Direct Appeal, 76 Ohio St.3d 107 (1996) Appendix E: Partial Transcript of Trial Proceedings, Pages 1881-1889 and 1890-1895, Cuyahoga County Court of Common Pleas, Case No. CR-275] : Sa Appendix F: Henderson v. Collins, Order, United Page ae 33a ossee LUTO States District Court for the Southern District of Ohio, Case No. C-1-94-106 (July 10, 2003) o.ecececccccccscsee. Appendix G: Taylor v. Mitchell, unreported Opinion and Order, United States District Court for the Northern District Of Ohio, Case No. 1:01CV601 FE FT emitbcnnaibertsatto et a 3a APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 00-4193 WILEY DAVIS, JR., Petitioner-Appellant, V. BETTY MITCHELL, Warden, Respondent-Appellee. Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 99-01649. James Gwin, District Judge. Argued: October 31, 2002 Decided and Filed: February 4, 2003 Before: MERRITT, BOGGS, and MOORE, Circuit Judges. MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. BOGGS, J., delivered a separate dissenting opinion. COUNSEL ARGUED: Laurence E. Komp, Baldwin, Missouri, for Appellant. Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Laurence E. Komp, Baldwin, Missouri, John Patrick Parker, Cleveland, Ohio, for Appellant. Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee. 4a OPINION BY: MERRITT OPINION MERRITT, Circuit Judge. Immediately following the trial court's instruction regarding mitigating circumstances, the trial judge in this death penalty case from Ohio gave the jury a unanimity instruction, stating, “Now, as you know, since this is a criminal case, the law requires that in order for you to reach a decision all 12 of you must be in agreement.” nl In addition to this express unanimity instruction in close proximity to the instruction on mitigating circumstances, the trial judge gave the jury a _ so-called ‘“acquittal-first” instruction stating that it must first analyze whether the elements allowing the death penalty were present, and only if | they were not present, should the jury move on to consider i life imprisonment: Now, the procedure which you must follow in arriving at your verdict in the sentencing phase of the trial is set forth in Revised Code Section 2929.03 of the Revised Code of the State of Ohio. ... If all twelve members of the jury find by proof beyond a_ reasonable doubt that the aggravating circumstances which Wiley Davis, Jr. was found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court. I instruct you as a matter of law that if you make such finding then you have no choice and must recommend to the Court that the sentence of death be imposed upon the i defendant, Wiley Davis, Jr. CE a Sa On the other hand, if after considering all of the relevant evidence raised at trial, the testimony, other evidence, the unsworn statement of Wiley Davis, Jr. and the arguments of counsel, you find that the State of Ohio failed to prove beyond a_ reasonable doubt that the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision; that is, you must find that the State has failed to prove beyond a_ reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors. In this event you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court. nl Just before this unanimity instruction, the judge told the jury about the verdict forms which the jury would have before it. On each form the jury was told that there would be 12 “bars” for each of the 12 jurors to sign to carry out the unanimity requirement. Immediately before the unanimity instruction quoted above, the trial judge gave the jury the following instruction with regard to the verdict form on a finding that the mitigating factors outweighed the aggravating factors, as follows: We, the jury in this case, being duly impaneled and sworm, do find that the Aggravating Circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are not sufficient to outweigh the Mitigating Factors present in this case beyond a reasonable doubt,” and “We, the jury, recommend that the defendant, Wiley Davis, Jr., be sentenced to life imprisonment with parole eligibility after serving—and then down here there is an asterisk that says, ‘Insert in 6a ink either (20) or (30) full years of imprisonment,” and, again, 12 signature bars.’” (J.A. at 242-44.) The habeas petitioner argues that these two interconnected instructions—the unanimity instruction and the acquittal-first instruction—constitute constic ional error under the Eighth Amendment because there was a reasonable likelihood that jurors would understand the instruction to mean that juror unanimity was required to mitigate the punishment from death to life. In upholding the death penalty in this case on direct appeal, the Ohio Supreme Court observed that these instructions “lacked clarity,” suggesting that they could be misconstrued. In fact, there is a reasonable likelihood that the jury believed that it could not render a verdict in favor of life imprisonment rather than death unless the jury was unanimous with respect to its reasoning on the presence of mitigating factors and unless the jury was unanimous in rejecting the death penalty. Instructions that leave a jury with the impression that juror unanimity was required to mitigate the punishment from death to life imprisonment clearly violate the Eighth Amendment, and therefore the writ of habeas corpus must issue setting aside the death sentence. Facts and Procedural History On June 1, 1992, the Cuyahoga County Court of Common Pleas adopted the jury’s recommendation and sentenced Wiley Davis to death for the brutal kidnaping and murder of Amy Perkins. Davis appealed his conviction to the Cuyahoga County Court of Appeals, which affirmed Davis’s conviction but set aside that portion of his sentence that called for his placement in solitary confinement each year on the anniversary of Amy Perkins’s death. In 1996, the Ohio Supreme Court affirmed both the murder conviction and sentence of death. The state court denied Davis’s petition for post-conviction relief, and in 1998, the Cuyahoga County Ta Court of Appeals affirmed the trial court’s decision denying post-conviction relief. In 1999, the Ohio Supreme Court declined to exercise jurisdiction over Davis’s appeal of that decision as one not involving any significant constitutional claim. On August 23, 2000, the District Court for the Northern District of Ohio denied Davis’s petition for a writ of habeas corpus. With respect to Davis’s contention that the trial court's instruction failed to notify each juror of his or her right to unilaterally prevent a death penalty recommendation, the district court held that it was reasonable for the Ohio Supreme Court to conclude that the trial court’s instructions “when read as a whole, adequately informed the jury of the proper manner to deliberate and choose a death penalty recommendation.” See Davis v. Mitchell, 110 F. Supp. 2d 607, 624 (N.D. Ohio 2000). This Court has granted a certificate of appealability on four of Davis’s claims, one of which is his claim that the trial court’s instruction prevented jurors from giving effect to mitigation. Analysis The developing law regarding the balancing of mitigating factors against aggravating factors in death penalty cases is of relatively recent vintage and many questions about its application remain unanswered. Thirteen years before the Supreme Court decided Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (holding death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violative of the Eighth and Fourteenth Amendments), the drafters of the American Law Institute’s 1962 Model Penal Code proposed the balancing of statutorily specified aggravating and mitigating circumstances as a method to restrain unguided discretion in the capital sentencing process. See American Law: Institute, Model Penal Code § 201.6 ( Tent. 8a Draft No. 9, 1959) (eventually adopted as § 210.6 of the 1962 Model Penal Code). Although the drafters did not elaborate on any particular method for weighing the two sets of circumstances, they sought to guide the discretion of jurors by requiring them to find that, in light of the statutorily defined mitigating circumstances and any other facts deemed relevant, “there are no mitigating circumstances sufficiently substantial to call for leniency.” Model Penal Code § 210.6(2) (1962). Nor was it clear in these proposals when unanimity among jurors should be required at any given stage of the proceedings, except that unanimity would be required for the imposition of the death sentence. See Model Penal Code § 201.6(2) (alternative formulation), at 60 & commentary at 78-79 (Tent. Draft No. 9 1959); Model Penal Code § 210.6(2) (1962). After Furman was decided in 1972, many states incorporated aspects of the Model Penal Code in their statutes reinstating the death penalty. These states adopted, with varying degrees of modification, the Code’s agegravator-mitigator dual standard. In Gregg, the Supreme Court approved the Code’s balancing standard as a general solution to the Eighth Amendment problem of uncertain, standardless state laws found invalid in Furman. See Gregg v. Georgia, 428 U.S. 153, 193-195, 49 L. Ed. 2d 859, 96 S. Cr. 2909 & nn.44-45 (1976). In 1994, Congress enacted the Federal Death Penalty Act using this dual standard. That Act states that “the finder of fact shall consider any mitigating factor” raised by the defendant in deciding whether to impose the death penalty and that such [a] finding with respect to a mitigating factor may be made by | or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the number of jurors who concur that the factor has been established. 9a 18 U.S.C. § 3593(d). Thus under the Federal Death Penalty Act, not only is the burden of persuasion different for aggravating and mitigating factors, the unanimity requirement that exists for aggravating factors does not exist with respect to mitigating factors. Any one or more jurors may find the existence of a mitigating factor and may then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. This weighing decision must be made by each juror giving individual consideration to the aggravating factors unanimously found by all of the jurors and such mitigating factors as may be found by each juror. n2 n2 United States v. McVeigh, 96- CR-68, 1997 WL 312609, at *42 (D. Colo. June 12, 1997) (official transcript of trial court’s instructions to the jury in federal death penalty case); see also United Staies v. Jones, 527 U.S. 373, 392 n.10, 144 L. Ed. 2d 370, 119 S. Ct. 2090 (1999) (“A finding with respect to a mitigating factor may be made by any one or more of the members of the jury, and any member who finds by a preponderance of the evidence the existence of a mitigating factor may consider such factor established for his or her weighing of aggravating and mitigating factors regardless of the number of other jurors who agree that such mitigating factor has _ been established.””’) (quoting the trial court’s instructions). This provision of the Act was first adopted on the Senate floor by an amendment offered by Senator D’Amato to an earlier version of the federal death penalty bill and then later adopted in a reconciliation bill after different versions of the bill were sent to a conference committee. The reason given for adopting this language in the Federal Death Penalty Act ON Lee bale 10a of 1994 was explained by Senator D’Amato on the Senate floor when he originally offered the amendment in 1988: Mr. President, this amendment brings us into conformity with the Tuesday Supreme Court decision in Maryland versus Mills. Basically, it says that you must have a unanimous decision by a jury as it relates to the imposition of the death penalty. Even if one juror says there was mitigating circumstances of any sort, the death penalty cannot be imposed. It makes this very clear. That is what this language does. It brings us in conformance with that decision. I hope we can accept it without the necessity of going through a debate and rollcall vote. 134 Cong. Rec. 14,103-04 (1988) (statement of Sen. D’ Amato regarding Amendment 2343 to S. 2455). We agree that this treatment of mitigating factors set out by Congress in § 3593 of the Federal Death Penalty Act is required by the Eighth Amendment. In Mills v. Maryland, 486 U.S. 367. 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988), and McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, 110 §. Ct. 1227 (1990), the Supreme Court held unconstitutional any requirement that “prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find.” McKoy, 494 U.S. at 435. Rather, Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that, in North Carolina’s system, each juror must be allowed to consider all mitigating evidence... whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstance, are sufficiently substantial to justify a sentence lla of death. Under Mills, such consideration of mitigating evidence may not be foreclosed by one or more jurors’ failure to find a mitigating circumstance .... Id. at 443. The reason that aggravating factors must be found unanimously is that they are the elements of the murder offense that make the defendant death eligible. See Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2443, 153 L. Ed. 2d 556 (2002) (holding that because Arizona’s enumerated aggravating factors operate as the functional equivalent of elements of the offense, the Sixth Amendment requires that they be found by a jury). All of the elements of a criminal offense must be found by a jury unanimously as a matter of constitutional criminal procedure, see Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 1710, 143 L. Ed. 2d 985 (1999), particularly all elements that make a defendant death eligible, see Ring, 122 S. Ct. at 2431. Mitigating factors, on the other hand, are not viewed as - elements of the crime but rather as evidence relevant to a defendant’s character or record or other circumstances of the offense that might lead a sentencer to decline to impose the death sentence. See McCleskey v. Kemp, 481 U.S. 279, 304, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987). Accordingly, a state may not require unanimity in finding mitigating factors. Such a requirement “impermissibly limits jurors’ consideration of mitigating evidence.” McKoy, 494 U.S. at 444. In fact, as Mills and McKoy hold, any requirement that mitigating factors must be found unanimously is incoherent. See Mills, 486 U.S. at 400; McKoy, 494 U.S. at 442-43. A unanimity requirement on mitigating factors would mean that, if aggravating factors have been found by the jury, one or more jurors who—in disagreement with other jurors—find no mitigating factor, or find different mitigating factors, or find that the aggravating factors do not outweigh mitigating 12a factors found by some (but not all) of the jurors, or find that no mitigating factor outweighs aggravating factors, could still produce a death verdict or a hung jury, depending on how State law treats the disagreement. Thus, in order for Eighth Amendment law on mitigating factors to be coherent and capable of judicial administration without serious confusion, a capital jury must understand that, in the words of the Federal Death Penalty Act, “a finding with respect to a mitigating factor may be made by one or more members of the jury.” With that background about the development of Eighth Amendment law regarding mitigating factors, we are now in position to apply these principles to the facts of the instant case. Our inquiry is “whether there is a reasonable likelihood that the jury has applicd the challenged instruction in a way that violates the Constitution.” Jones v. United States, 527 U.S. 373, 390, 144 L. Ed. 2d 370, 119 §. Ct. 2090 (1999); see also Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316,110 §. Ct. 1190 (1990). Ohio’s death penalty statute requires that in order for a jury to recommend a sentence of death, it must unanimously find that the aggravating circumstances outweigh any mitigating circumstances present in the case. In the absence of a unanimous finding that death is appropriate, the jury must recommend imprisonment for a unanimously agreed- upon specified term. n3 Although the Supreme Court has indicated that the weighing of aggravating and mitigating circumstances in death penalty cases is not _ itself constitutionally required, once a state has adopted that method of narrowing the class of persons eligible for the death penalty and providing for individualized juror consideration of the appropriateness of the death penalty in a particular case, the Eighth Amendment requires that jurors not be precluded from giving effect to the mitigatiag evidence by an instruction requiring unanimity as to the 13a presence of mitigating circumstances. See Mills, supra. Any instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence likewise precludes the individual juror from giving effect to mitigating evidence and runs afoul of Mills. n3 Section 2929.03(D)(2) of the Ohio Revised Code provides in relevant 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, 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. Absent such a finding, the jury shall recommend that the offender be sentenced to [life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment]. The Ohio Supreme Court has recognized that under Ohio's death penalty statute, a sole juror can prevent the death penalty if he or she individually finds that mitigating circumstances are present in the case and does not agree that the aggravating circumstances outweigh the mitigating circumstances. See Ohio v. Brooks, 75 Ohio St. 3d 148, 661 N.E.2d 1030, 1042 (Ohio 1996). The resulting non- 9 2 14a unanimous jury (as to the death penalty) must nevertheless return a unanimous verdict as to which of the sentences of imprisonment should be imposed. Given the requirement of unanimity as to the jury’s ultimate recommendation of either death or life under Ohio law, it is not surprising that the unarticulated but constitutionally required non-unanimous mechanism that will prevent a recommendation of death is obscured to such an extent that it cannot even be said to be implied by the instructions in this case. Instead of instructing the jury that it need not be unanimous in rejecting the death penalty, the trial judge in this case told the jury that in order to return a verdict for life imprisonment, “you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors.” Immediately thereafter, the Court instructed that “since this is a criminal case the law requires that in order for you to reach a decision all 12 of you must be in agreement.” The verdict form likewise reflected a unanimity requirement in finding that the aggravating circumstances do not outweigh the mitigating circumstances, setting out twelve signature lines under the statement, “We, the jury... do find that the Aggravating Circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are not sufficient to outweigh the Mitigating factors present in this case beyond a reasonable doubt.” This instruction, combined with the jury verdict form, not only “could” but by its plain language “would” lead a reasonable juror to conclude that the only way to get a life verdict is if the jury unanimously finds that the aggravating circumstances do not outweigh the mitigating circumstances, an entirely different instruction from one that clearly informs the jurors that a life verdict can be rendered by a jury that has not first unanimously rejected the death penalty. Further adding to the confusion, the jury was never told, either expressly or impliedly, that individual jurors may 15a consider mitigating circumstances in the weighing process regardless of the lack of agreement with other jurors as to the presence of that factor. In sum, the silence in these instructions on the lack of unanimity required for mitigating circumstances, the improper “acquittal-first” instruction, and the unqualified instruction, “Now, as you know... the law requires that in order for you to reach a decision all 12 of you must be in agreement’”—would have led a reasonable jury to apply an unconstitutional standard of unanimity at all stages in the deliberative process. The error in the present case is approximately the same as the error described by Judge Becker in Frey v. Fulcomer, 132 F.3d 916 (3d Cir. 1997). In that case, the Court of Appeals for the Third Circuit vacated a death sentence as violating Mills where “the relevant portion of the jury charge emphasized the importance of a unanimous finding, using the phrase frequently and in close proximity—within seven words of—the mitigating circumstances clause,” without explaining that unanimity is not required in consideration of mitigating evidence. /d. at 923. Here, as there, the trial court’s instructions are silent as to the different unanimity requirements for aggravating and mitigating circumstances, making no mention of the individual juror’s power to prevent the death penalty by giving effect to mitigating circumstances absent the agreement of the other jurors regarding the presence of those mitigating circumstances. Nor do they make clear that the jury need not be unanimous in rejecting death in order to render a verdict for life imprisonment. The inescapable likelihood in this case that the jury understood the instructions to require unanimity in both its ultimate and interim conclusions violates Mills. Our dissenting colleague has failed to describe the record correctly with respect to the Ohio trial court’s unanimity instruction regarding mitigating factors. In his dissenting opinion immediately following this opinion, he says that the a sp Sit gant cliente 16a Ohio trial court's unanimity instruction—‘“since this is a criminal case, the law requires that in order for you to reach a decision all 12 of you must be in agreement”—is “seventy lines and a recess away” from the instruction on “weighing mitigating factors” and is unrelated to mitigating factors. This is simply wrong, as the record itself demonstrates. As to aggravating and mitigating factors, the trial judge instructed the jury that they must consider and sign one of two verdict forms. The first form he read to them was the verdict form for imposing the death penalty. He then said immediately: And there are twelve signature bars, where you would sign that [verdict form], if that was your verdict. The second verdict [form] as to Count One [acquittal of the death penalty] says: “We, the Jury in this case, being duly impaneled and sworn, do find that the Aggravating Circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are not sufficient to outweigh the Mitigating Factors present in this case beyond a reasonable doubt” and “We, the Jury, recommend that the defendant, Wiley Davis, Jr. be sentenced to life imprisonment with parole eligibility after serving’ — and then down here there is an asterisk that says, “Insert in ink either twenty (20) or thirty (30) full years of imprisonment” and, again, twelve signature bars [for each of you to sign]. (Emphasis added.) Immediately following this instruction regarding their finding that the aggravating circumstances “are not sufficient to outweigh the mitigating factors” the court says: 17a Now, as you know, since this is a criminal case the law requires that in order for you to reach a decision all twelve of you must be in agreement. It is hard to conceive how this instruction concerning unanimity and the need for each juror to sign one of the twelve bars could be anymore plain that the jury must be unanimous if it finds that one or more mitigating factors outweighs the aggravating circumstances. This instruction— in the words of Williams v. Taylor, 529 U.S. 362, 413, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000)—is clearly “opposite to that reached by [the Supreme] Court on a question of law” in the Mills and McKoy cases discussed above. Our dissenting colleague is simply unable to get around the clarity of the erroneous instructions that the jury must be unanimous as to mitigators and that each juror must so attest by signing a form demonstrating unanimity. The “acquittal first” instruction and absence of any other instruction which conflicts with the requirement of unanimity on mitigators would simply reinforce in the mind of each juror that unanimity was required for both aggravators and mitigators. Accordingly, the judgment of the district court is reversed and the case remanded with instructions to issue the writ of habeas corpus, unless the State of Ohio conducts a new penalty proceeding within 180 days after remand. All other issues in the case raise claims of error in the sentencing phase of the case, and as such, are pretermitted in light of our decision to issue the writ as to this phase of the case. nb Cider Bik a ne eta BON hh 0 iw OSGi 18a DISSENT BOGGS, Circuit Judge, dissenting. Petitioner Davis’s claim for habeas relief is reviewed by this court pursuant to the dictates of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). As Davis does not challenge any of the state court’s factual findings, this court may grant the writ only “if the state court arrived at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decided a case differently than [the Supreme] Court has on a set of materially indistinguishable facts ...,” or “if the state court identified the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applied that principle to the facts of the prisoner's case.” Williams v. Taylor, 529 U.S. 362, 413, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). The court states that “in sum, the silence in these instructions on the lack of unanimity required for mitigating circumstances, the improper ‘acquittal-first’ instruction, and the unqualified instruction, ‘Now, as you know... the law requires that in order for you to reach a decision all 12 of you must be in agreement’—would have led a reasonable jury to apply an unconstitutional standard of unanimity at all stages in the deliberative process.” Page 12. The court thus attacks three parts of the instruction process: (1) what it calls an “acquittal-first” instruction; (2) the failure to give an explicit instruction that unanimity is not required for any individual juror to find a mitigating factor; and (3) the giving of a standard instruction that the return of a formal verdict requires jury unanimity. Each of these three aspects of the instructions is unexceptionable, and the action of the Ohio 19a Supreme Court in upholding these instructions certainly does not constitute an unreasonable application of any clearly established precedent of the United States Supreme Court. I will discuss each of these three aspects in turn. The court also states that “the habeas petitioner argues that these two interconnected instructions—the unanimity instruction and the acquittal-first instruction—constitute constitutional error under the Eighth Amendment because there was a _ reasonable likelihood that jurors would understand the instruction to mean that juror unanimity was required to mitigate the punishment from death to life.” Pages 3-4. The court does not cite the place where Davis makes such an argument, and I can find none. The court instead has conflated several arguments in order to avoid precedent from this circuit that would defeat any one of them alone. A. “Acquittal-first” instruction The Ohio Supreme Court rejected Davis’s argument that the instruction given by the judge during his sentencing phase was an improper “acquittal-first’” instruction that would warrant reversal of his capital sentencing. State v. Davis, 76 Ohio St. 3d 107, 666 N.E.2d 1099 (Ohio 1996). After reviewing all of the instructions given in the case, the court concluded that “it is clear that the jury was adequately informed that unanimity was required to return a death penalty recommendation. Each juror was made aware that he or she could prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors....” 666 N.E.2d at 1109. The question before this court is whether the Ohio Supreme Court unreasonably applied the correct governing legal principle, established in Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988), that “the sentencer 4 4 4 : ; 4 ? : 3 3 OL hei Anh Neh AEP ha EAA A BOD RD OE LIAN ELIE DIL aot 20a may not refuse to consider or be precluded from considering any relevant mitigating evidence ....” /d. at 374-75 (citing Skipper v. South Carolina, 476 U.S. 1, 4, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982)) (internal quotes and added emphasis omitted)). The objection to “acquittal-first” instructions is not to the order of consideration, but to the possibility that a juror may be led to believe that the jury must first unanimously reject death before considering a life sentence, rather than allowing a single juror to prevent a death sentence by creating a deadlock. However, the Constitution does not forbid a jury from considering a death sentence before considering a life sentence. This issue was squarely addressed by this court in Coe v. Bell, 161 F.3d 320, 339-40 (1998). See also Roe v. Baker, 2002 U.S. App. LEXIS 22645, 2002 WL 31426248, *4-*6 (6th Cir. Oct. 31, 2002); Henderson v. Collins, 262 F.3d 615, 621-22 (6th Cir. 2001) (discussing instruction in considering constitutionality of subsequent Allen charge), Scott v. Mitchell, 209 F.3d 854, 873-76 (6th Cir. 2000). The relevant Ohio statute provides: 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. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment. Ohio Rev. Code Ann. § 2929.03(D)(2) (1994). The very structure of the statute implies that jurors may first consider 2la the death penalty. It is clear that a unanimous finding is required in order to recommend death; however, the language “absent such a finding” implies that a unanimous finding is not required in order to reject the death penalty. Yet, unanimity among the jurors is required in order to impose one of the life sentences. State v. Jenkins, 15 Ohio St. 3d 164, 1S Ohiv B. 311, 473 N.E.2d 264, 307 (Ohio, 1984) (“we conclude in returning a sentence of life imprisonment under R.C. 2929.03(D)(2), the jury’s verdict must be unanimous”). The court claims that the “unarticulated but constitutionally required non-unanimous mechanism that will prevent a recommendation of death is obscured to such an extent that it cannot even be said to be implied by the instructions in this case.” Page 11. However, this circuit has held that there is no constitutional requirement that a judge inform the jury as to the effect of a failure to be unanimous in reaching a verdict. See Coe, 161 F.3d at 339-40. In Jones v. United States, 527 U.S. 373, 144 L. Ed. 2d 370, 119 S. Ct. 2090 (1999), the Supreme Court held the same thing in the context of the Federal Death Penalty Act. In State v. Brooks, 75 Ohio St. 3d 148, 661 N.E.2d 1030 (Ohio 1996), the Ohio Supreme Court held that Ohio state courts must instruct the jury that a solitary juror may prevent imposition of the death penalty. 66/ N.E.2d at 1040-42. This rule is prospective, and was not in force when Davis was sentenced to death. Regardless, “the fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991). The court appears to impose this rule on Ohio courts retroactively and institute a requirement that jurors be apprised of the effect of their individual power to deadlock the jury. The contrast between the instructions at issue here, and the instructions in Brooks, is illuminating. In Brooks, the judge stated to the jury as follows: “You are now required to $i —, ee aS Heh x cient Silat | resets tae Si Pe 22a determine unanimously that the death penalty is inappropriate before you can consider a life sentence.” 66/ N.E.2d at 1040. Such an instruction is thought to violate Mills and McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990) because it may lead a juror to believe that the sufficiency of mitigating factors has to be found unanimously; and also may lead a juror to believe that unless all jurors are disposed to grant mercy, that a defendant must be sentenced to death. The very same court that decided Brooks stated that the instructions in Davis’s sentencing phase were distinguishable from those in Brooks because the jury was never instructed that it must unanimously reject the death penalty before it could consider the life sentences. Davis, 666 N.E.2d at 1109. The majority correctly notes that the court in Davis stated that the instructions “lacked the clarity of the model instruction contemplated in Brooks.” Ibid. However, there is no constitutional requirement “to be a model of clarity”; moreover, the lack of clarity did not preclude the Ohio Supreme Court from finding that the jurors in the instant case were adequately instructed that unanimity in rejecting the death penalty was not required before they could consider the life sentences. Indeed, the instructions in this very case, State v. Davis, were used by both the majority and the dissent in Henderson v. Collins, 262 F.3d 615 (6th Cir. 2001), to demonstrate permissible instructions. Notably, the dissent in Henderson (favoring the reversal of a death sentence) discussed the Ohio Supreme Court’s consideration of further instructions given to the jury in this case. The dissent notes that after the judge instructed the jury regarding the death penalty and the life sentences, the judge went on to caution the jurors: Now, your initial conduct upon entering the jury room, again, is a matter of importance. You should consult with each 23a other; consider each other’s views, and deliberate with an objective of reaching an agreement, if you can do so, without doing violence to your individual conscience and good judgment. You should do so only after a discussion and a consideration of the case with your fellow jurors. Remember, each of you is equal in the jury room, and you shouldn’t hesitate to change your opinion if convinced by your fellow jurors that you are wrong. However, do not surrender any honest conviction in order to be congenial, or to reach a verdict solely of the belief of the other jurors. Id. at 627 (Clay, J., dissenting) (citing Davis, 666 N.E.2d at 1109) (added emphasis omitted). These instructions track almost exactly the Ohio pattern jury instructions regarding “Conduct while deliberating.” Ohio Jury Instructions § 413.70. The dissent in Henderson noted that the Ohio Supreme Court reviewed all the instructions and concluded that each juror was aware of his or her ability to prevent a death penalty recommendation. /bid. (Clay, J., dissenting). The Ohio Supreme Court's decision was not an unreasonable application of Mills or McKoy. The court's conclusion to the contrary squarely contradicts binding Sixth Circuit precedent. B. Lack of unanimity required for mitigating circumstances The court is also troubled because “the jury was never told, either expressly or impliedly, that individual jurors may consider mitigating circumstances in the weighing process rears 24a regardless of the lack of agreement with other jurors as to the presence of that factor.” Pages 11-12. This also purportedly violates the dictates of Mills. The Supreme Court in Mills vacated the petitioner’s death sentence and remanded the case to the Maryland Court of Appeals for resentencing. The Court took issue with the structure of the Maryland sentencing scheme. In that scheme, the verdict forms provided to the jury listed each aggravating circumstance the prosecution was attempting to prove. The jurors then collectively had to write “yes” or “no” next to each factor, indicating whether they unanimously believed that the prosecution had proved each aggravating factor beyond a reasonable doubt. A similar form was presented to the jury for mitigating factors. After filling out the forms, the jurors would proceed to the weighing stage, at which time they would decide, unanimously, whether the aggravating factors outweighed the mitigating factors. The Supreme Court concluded that the risk was too great that, in Maryland, a juror would believe that in order for a mitigating factor to be considered in the weighing process, that it would have to be unanimously found present. This is a far cry from the situation presented in this case. There is no indication anywhere in the instructions that each mitigating factor had to be agreed to unanimously. The judge instructed the jury that they were to weigh the evidence presented and determine whether the aggravating factors were sufficient to outweigh “any mitigating factor or factors you find that are present in this case.” Transcript, p. 1888. The judge then instructed the jury that if the state failed to prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, then they were to return a verdict reflecting this finding. Transcript, p. 1889. 25a Nowhere in the instructions did the judge state, or even imply, that jurors were restricted to considering mitigating factors that all the jurors had agreed were present. Such an instruction would violate McKoy v. North Carolina, in which the Supreme Court found unconstitutional any requirement that “prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find.” 494 U.S. at 435. However, that is all that McKoy says. Nowhere does it state that silence in instructions on the lack of a unanimity requirement for mitigating circumstances violates the Eighth Amendment. The instructions in this case are very similar to those found unobjectionable in Coe and Roe. In Coe, the court found that nothing in the instructions could reasonably lead a juror to believe that unanimity was required as to the presence of a mitigating factor. The court stated that the instructions “required unanimity as to the results of the weighing, but this is a far different matter than requiring unanimity as to the presence of a mitigating factor.” /6/ F.3d at 338. As in the instructions here, it was clear that the unanimity requirement applies to the weighing process, and not the presence of a mitigating factor. The trial court here instructed the jury that “it is not only the quantity of the aggravating circumstances versus the quantity of mitigating factors which is to be the basis of your decision. It is the quality or importance of the mitigating factors and the aggravating circumstances which must be considered.” Transcript, p. 1887. This strongly implies that each juror was to make his or her own independent judgment regarding each factor. While the jury was instructed on the unanimity requirement in finding aggravating factors, there was no parallel instruction regarding mitigating factors. The jury was specifically instructed as to those decisions in which unanimity was required. Any reasonable juror would SE 26a understand that where unanimity is not specifically instructed, those decisions should be made independently. The state courts never reached the issue of any alleged unanimity requirement regarding the mitigating factors, as this claim was never presented to the state courts, the district court, nor to this court. But in failing to strike down this instructional system, the state court did not unreasonably apply Supreme Court precedent. The court likens this case to Frey v. Fulcomer, 132 F 3d 916 (3d Cir. 1997). The court in Frey found particularly objectionable a portion of a sentence in the jury instructions that read “if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance ....” Jd. at 923. It was the propinquity, in the same sentence, within seven words, of “unanimously” and the mitigating circumstances clause that led the court to conclude that a juror might believe that a unanimous finding was required as to mitigating circumstances. [hid. However, the court in Frey distinguished the instructions from another set of instructions that it had found unobjectionable in Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991). In Zettlemoyer, the court found that the instructions only required “unanimity in the ultimate conclusion, and not in the interim findings leading to that conclusion.” Frey, 132 F.3d at 923. The separation between “unanimously” and the mitigating circumstances clause in Zettlemoyer was seventeen words, even though it was still in the same sentence. /hid. Here, the court also contends that the absence of an instruction notifying the jury that a unanimous finding is not required as to mitigating circumstances makes this case like Frey. In fact, the court in Frey specifically stated that “the absence of such an express statement is not dispositive” and stated that such an instruction is only one means that a trial court could use to clarify its instructions to the jury. Id. at 923 n.5, 27a This court has held that a trial court may instruct the jury that it must be unanimous in finding an aggravating factor, and may be silent as to the lack of a unanimity requirement in finding mitigating circumstances. Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990) (en banc) (Judge Kennedy, announcing the holding of the court with respect to the jury instructions on unanimity). The court in Kordenbrock stated that since the trial court announced a unanimity requirement as to aggravating factors, but was silent as to mitigating factors, “it cannot be reasonably inferred that silence as to finding a mitigating factor would likely cause the jury to assume that unanimity was also a requirement. Indeed it would indicate the opposite.” 9/9 F.2d at 1121. Judge Merritt wrote, contra to the majority holding on this issue, that “the verdict of death may not have been imposed had they understood that one juror could block the death sentence if he or she believed there were sufficient mitigating circumstances.” /d. at 1110. This is essentially the same position he takes in the instant case. However, as the court held in Kordenbrock, it is not constitutionally required that the jury be so instructed. The court states that the instruction “you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors” was followed “immediately thereafter” by the instruction “since this is a criminal case the law requires that in order for you to reach a decision all twelve of you must be in agreement.” Page 11. In fact, these two instructions are separated by about 70 lines of the transcript, and, additionally, by a recess taken by the court because the verdict forms were not in order. Compare Transcript p. 1889, line 18 with Transcript p. 1892, line 18. sneer 28a C. Instruction on unanimous verdict The court also finds it objectionable that the verdict forms reflected a unanimity requirement in finding that the aggravating circumstances do not outweigh the mitigating circumstances. Again, this court has held repeatedly that requiring unanimity as to the results of the weighing process does not offend due process. Roe, 2002 U.S. App. LEXIS 22645, 2002 WL 31426248 at *5; Coe, 161 F.3d at 338. It is difficult to say what the court’s argument is at all. Its conclusion is that there is an “inescapable likelihood” that the jury in this case “understood the instructions to require unanimity in both its ultimate and interim conclusions... .” Page 12. However, there are only two places where a unanimity requirement has been held to be unconstitutional: (1) to reject the death penalty, and (2) as to the presence of a mitigating factor. Reviewing the instructions in total, there is not a word that would lead any reasonable juror to understand that unanimity was required in these two instances. The court would require that trial courts spell this out. Indeed, Ohio now requires its trial courts to instruct juries that one juror has the ability to block the death penalty. However, that is a matter of state law, not federal law. In fact, both this court and the Supreme Court [have] chastised such instructions as encouraging deadlock and undermining the strong governmental interest in unanimous verdicts.” Roe, 2002 U.S. App. LEXIS 22645, 2002 WL 31426248 at *5 (quoting Scott, 209 F.3d at 877); Scott, 209 F.3d [*697} at 877 (citing Jones v. United States, 527 U.S. 373. 382-84, 144 L. Ed. 2d 370, 119 §. Ct. 2090 (2000)). The trial court correctly instructed the jury on mitigating and aggravating factors, in accordance with Ohio law at the time and with our court’s cases, both before and since. These instructions occupied pages 1869-75 and 1881-90 of the transcript. 4 t 4 £ FB. 29a The trial court then began to explain the actual verdict forms. As is required by law, it noted that a verdict recommending death required unanimity as to the existence of aggravating factors, unanimously found by the jury (which it had already done, in its penalty phase determinations), that, in the opinion of each juror, outweighed the mitigating factors. The trial court had previously instructed the jury on finding mitigating factors, with no unanimity mentioned. The trial court then explained the verdict forms recommending life imprisonment. Again, the trial court truthfully told the jury that such a verdict required each juror to agree to it. It would have been a falsehood for the judge to tell the jury that it could return a verdict recommending life with parole in 20 years, or life with parole in 30 years, without each juror signing that form. That is all that the judge did; and he was completely truthful and legally correct in so doing. This discussion occupies 60 lines of transcript at pages 1890-92. Finally, having concluded the discussion of the verdict forms, the judge simply reinforced the correct statement of the law that a verdict had to be unanimous. This use of the words “to reach a decision all twelve of you must be in agreement” was 70 lines nl and a recess away from the instruction on finding and weighing mitigating factors, as opposed to the 17-word distance that the Third Circuit found acceptable, and wildly different from the 7-word distance that the court found unconstitutional in Frey (albeit before AEDPA and thus not under the more stringent standard established by that law). nl As is obvious from his final response (pages 12-13), Judge Merritt and I share a difference of opinion as to what is “the Ohio trial court’s unanimity instruction regarding 30a mitigating factors.” As I carefully explain above, the instructions are given at pages 1869-75 and 1881-90. The accurate recitation of the verdict forms occurs at transcript pages 1890-92. A correct reading of a constitutionally unexceptionable verdict form is not “an instruction.” As nearly as I can gather, the court’s complaint is that the judge did not instruct the jury to the effect that “any one of you can prevent the imposition of the death penalty on this defendant, simply by refusing to sign the death verdict. You can do so for any reason or for no reason.” While that is a correct statement of existential truth, no case, and certainly no Supreme Court case, has come close to requiring that such an instruction be given. The court’s opinion as to what a reasonable Ohio jury would believe from the instructions in this case is, in my opinion, a gross libel on the intelligence and understanding of those jurors. I therefore respectfully dissent. 31a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 00-4193 WILEY DAVIS, JR., Petioner-Appellant, V. BETTY MITCHELL, WARDEN, Respondent-Appellee. Filed: April 25, 2003 Before: MERRITT, BOGGS, and MOORE, Circuit Judges. COUNSEL For Wiley Davis, Jr. Petitioner - Appellant: John Patrick Parker, Cleveland, OH. Laurence E. Komp, Baldwin, MO. For BETTY MITCHELL, Warden, Respondent - Appellee: Charles L. Wille, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH. ORDER The court having received a petition for rehearing en banc, and the petition having been circulated not only to the Original panel members but also to all other active judges of this court, and no judge of this court having requested a vote 32a on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied. Judge Boggs would grant rehearing for the reasons stated in his dissent. | 33a APPENDIX C UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION CASE NO. 1:99-CV-1649 WILEY DAVIS, JR., Petitioner, V. BETTY MITCHELL, WARDEN, Respondent. Decided and Entered: August 23, 2000 Before: James S. Gwin, United States District Judge. COUNSEL John P. Parker, Cleveland, Ohio; Patricia A. Millhoff, Akron, Ohio; Charles L. Wille, Mathew J. Lampke, Office of the Attorney General, Columbus, Ohio; Jon W. Oebker, Office of the Attorney General, Cleveland, Ohio. OPINION BY: James S. Gwin OPINION In this death penalty case, Petitioner Wiley Davis, Jr., petitions for a writ of habeas corpus. In support of his i 34a petition, Davis says constitutional error attended his conviction and resulting death sentence. Respondent Warden Betty Mitchell says Petitioner Davis is not entitled to a writ of habeas corpus. First, Respondent Mitchell maintains that Petitioner Davis has procedurally defaulted many of his claims for relief. With regard to the remaining claims, Respondent Mitchell argues that Petitioner Davis either fails to show any constitutional violation or raises claims not cognizable on habeas review. For the reasons set forth below, the Court finds that Petitioner Davis has failed to establish his right to a writ of habeas corpus. Accordingly, the Court denies Davis’s petition. I. Overview In evaluating the petition, the Court first describes the facts relating to Petitioner Davis’s crime of conviction. Second, the Court reviews Davis’s direct appeals and attempts to receive post-conviction relief. Third, the Court decides whether Davis has exhausted his state remedies and has procedurally defaulted any of his grounds for relief. Fourth, the Court considers Davis’s request for an evidentiary hearing. Fifth, the Court sets forth the standard of review applicable to Davis’s petition. Finally, the Court substantively reviews Davis’s grounds for relief. II. Factual Background Currently, Petitioner Wiley Davis awaits execution for the murder of Amy Perkins. A jury found that Davis murdered Perkins on November 26, 1991, shortly after kidnapping her from a downtown Cleveland parking lot. 35a On that date, Davis was observed at the kidnapping scene at 8:15 a.m. At a downtown Cleveland parking lot, parking lot patron Mattie Baker observed Davis pacing back and forth in the parking lot as she parked her car. By the time Baker exited her car, Davis was no longer in sight. Having forgotten her parking space number, Baker soon returned to her vehicle. As she returned, Baker saw Davis sitting in the driver’s seat of the car parked next to her vehicle. Baker described the car as a small gray Toyota with Texas license plates. Amy Perkins owned the vehicle. Baker testified that a white female sat in the passenger’s seat of the car. The female had a “terrified look” on her face, prompting Baker to seek help. However, the car leit the parking lot before Baker was able to find any assistance. Within an hour of Baker’s encounter with Davis, Gwendolyn Brice saw Amy Perkins’s car sitting at a stop sign near Brice’s home. She saw a woman in the car motion as if to push something away just before a “pop” sound emanated from the vehicle. Brice then saw the passenger side window shatter and the woman’s head drop. Shortly thereafter, Marjorie Johnson arrived at Brice’s house and parked behind Perkins’s car. Johnson saw a black male in the driver’s seat and a white female in_ the passenger’s seat. The female’s head was hanging out of the window. Upon seeing Johnson, the driver pulled away at a high rate of speed. Nancy Brown next spotted Perkins’s vehicle as she waited with her son and his friends for their school bus to arrive. Brown the car cross the intersection near the bus stop while the driver struggled to close the passenger’s door. After the car passed, the children told Brown they saw someone lying in some nearby bushes. Brown ran to the 36a bushes, where she discovered a nude white female struggling to speak. After calling 911 from a house in the area, Brown covered the woman with a borrowed blanket. The ambulance arrived and took the woman to the hospital, where she eventually died. David Perkins later identified the woman as his wife, Amy Perkins. Soon after the shooting, the police located Amy Perkins’s gray Toyota in the parking lot of a deli. The car contained shattered glass and fresh blood. Approximately five to ten feet from the driver’s side of the car, the police recovered a Federal .32 caliber shell casing. Inside the car, the police found Amy Perkins’s clothing, checkbook, and some personal items. They appeared to have been rifled through. Later that morning, Petitioner Davis appeared at his sister's house. Davis’s sister lived approximately three hundred yards from the Toyota’s final location. After coming into his sister’s house, Davis told his sister and her boyfriend that he had accidentally shot someone during an altercation. He then asked his sister’s boyfriend, Alfonso Herring, Jr., to give him a change of clothes and to hide his gun. Herring agreed. After changing out of his blood-stained sweatsuil, Davis left his sister’s home at 9:40 a.m. A few hours later, Cleveland police officers arrested Davis at his girlfriend’s house. A search of the house uncovered a box of Federal brand .32 caliber ammunition and a blood-stained right shoe. Herring later gave to the police Davis’s gun and the clothes Davis had worn on the morning of Amy Perkins’s murder. Firearm testing showed that the gun Davis gave to Herring had fired the casing found in the deli parking lot. And the Cuyahoga County Coroner’s Officer identified the 37a blood stains on Davis’s shoe and sweatsuit as Type O—the same type as Amy Perkins. Regarding the state’s later claim that Amy Perkins was murdered during the course of a robbery, the police did not recover any jewelry from the car or Perkins’s body. However, David Perkins testified that his wife always wore a custom-made engagement wedding ring and a Rolex watch He said these items had been missing since Amy’s death. On December 5, 1991, the Cuyahoga County Grand Jury indicted Davis on a six-count indictment. The first two counts charged aggravated murder under Ohio Revised Code § 2903.01(A) and (B). Each count carried three felony— murder capital specifications-kidnapping, aggravated robbery, and rape or attempted rape. The remaining counts charged kidnapping nl, rape n2, aggravated robbery n3, and having a weapon while under a disability. n4 nl See OHIO REV. CODE § 2905.01. n2 See OHIO REV. CODE § 2907.02. n3 See OHIO REV. CODE § 2911.01. n4 See OHIO REV. CODE § 2923.13. Davis was tried before the Cuyahoga County Court of Common Pleas. The jury convicted Davis on all counts and all specifications thereto. Following the — jury’s recommendation, the trial court sentenced Davis to death. The court also ordered Davis to spend the twenty-sixth day of each month in solitary confinement until his execution. III. Procedural Background Following his conviction, Petitioner Davis appealed to the Cuyahoga County Court of Appeais. In 1995, the appellate court affirmed Davis’s conviction, and set aside ee ee 38a only that portion of Davis’s sentence calling for his placement in solitary confinement on the anniversary of Amy Perkins’s death. After the Cuyahoga County Court of Appeals affirmed his conviction, Petitioner Davis sought review with the Ohio Supreme Court, In 1996, the Ohio Supreme Court affirmed both Davis’s conviction and sentence. Davis next filed a state-court petition for post-conviction relief. After the state trial court denied the petition, Davis sought review with the Cuyahoga County Court of Appeals. In 1998, the appellate court affirmed the trial court's decision. Davis then filed an appeal with the Ohio Supreme Court. The Ohio Supreme Court declined to exercise jurisdiction. On January 7, 2000, Davis filed his petition for a writ of habeas corpus. The Court now considers his petition. IV. Exhaustion and Procedural Default 1. Exhaustion A habeas corpus petitioner must exhaust his available | state remedies before petitioning for a writ of habeas corpus. , See 28 U.S.C. §2254(b). To determine whether the exhaustion requirement is met, the Court examines whether the petitioner “has the right under the law of the State to ; raise, by any available procedure, the question presented.” 28 i U.S.C. § 2254(c). As explained in Part II, Petitioner Davis has pursued all opportunities for relief at the state level, both on direct appeal and in post-conviction proceedings. Petitioner Davis has thus exhausted available state court remedies. 39a 2. Procedural Default Federal courts “will not review questions of federal law decided by a state court if the decision of that court rests upon a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, S01 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Applied to the habeas context, this doctrine stops federal court review of claims that a state court has declined to address because of the _ petitioner’s noncompliance with a state procedural requirement. See Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S. Cr. 2497 (1977). “In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman, S501 U.S. at 730. The United States Court of Appeals for the Sixth Circuit has established a four-step analysis to determine whether a claim has been procedurally defaulted. See Maupin v. Smith, 785 F 2.5 135 (6th Cir. 1986). Under this test, the Court must determine (1) whether the petitioner failed to comply with an applicable state procedural rule; (2) whether the state courts actually enforced the state procedural sanction; (3) whether the state procedural bar is an “adequate and independent” state ground on which the state can foreclose federal review; and, if the previous elements are met, (4) whether the petitioner has demonstrated “cause” and “prejudice.” /d. Respondent Mitchell contends that Petitioner Davis has procedurally defaulted Claims for Relief 2, 4 (PP 18-29), 5, 8, 12 (PP85-90), 18 and 19. According to Respondent Mitchell, Davis never presented Claim 12 (P 86) to the state courts, and thus is barred from pursuing this claim in his habeas petition. Respondent Mitchell says the remaining claims are barred by either Ohio’s contemporaneous objection rule or the doctrine of res judicata. The Court considers each of these arguments in turn. ‘ee SAN arr MR Fre. 40a 1. Claims Never Presented to State Courts Respondent Mitchell states that Claim 12 (P86) was never raised in state court. The Court finds that the arguments made in both P 86 and P 91 of Claim 12 are barred. In P 86, Petitioner Davis argues that the prosecution “elicited testimony designed to inflame and prejudice the jury when the jury was advised that the victim’s husband had requested, and was granted the opportunity to speak face to face with the defendant.” After reviewing Davis’s direct appeals, the Court finds that Davis has raised this argument for this first time in his habeas petition. In P 91, Petitioner Davis says the prosecution “improperly argued that the juries [sic] verdict was only a recommendation in an effort to lead the jury to believe that the responsibility for determining the appropriateness of a death sentence rests elsewhere.” Davis did not raise this argument on direct appeal. Davis argued only that the trial court improperly instructed the jury as to its advisory role in recommending a penalty; he never claimed the prosecution made any improper argument regarding the jury’s role. Ordinarily, issues raised for the first time in a habeas corpus petition are remanded to the state court. However, Petitioner Davis is barred from presenting these arguments in state court because he had the opportunity, but failed to do so, during his state court proceedings. See State v. Perry, 10 Ohio St. 2d 175, 179, 226 N.E.2d 104, 107 (1967) (holding that a constitutional issue cannot be considered in post- conviction proceedings where they have already been or could have been fully litigated before judgment of conviction or on direct appeal from that judgment). 4la A claim not originally brought in state court that in turn has no state court remedy is procedurally barred. See Riggins v. McMackin, 935 F.2d 790 (6th Cir. 1991). Accordingly, the Court finds that the arguments raised in P 86 and P 91 of Claim 12 are procedurally defaulted. n5 n5 Even if not barred, these claims lack merit. The Court finds nothing inflammatory in the prosecution’s remarks about David Perkins’s face-to-face meeting with Petitioner Davis. This comment in no way infected Davis’s trial with sufficient prejudice as to deny Davis due process. See Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986). And contrary to Davis's contention in P 91, the trial court properly instructed the jury regarding its advisory role in sentencing Petitioner Davis. The court merely informed the jury that the trial court would ultimately sentence Davis. This is an accurate statement of Ohio law. See OHIO REV. CODE § 2929.03(D)(3). Such an instruction does not run afoul of the Constitution. 2. Contemporaneous Objection Rule Respondent Mitchell argues that Claim 2 and portions of Claim 12 (PP 87-90) are procedurally defaulted under Ohio’s contemporaneous objection rule. The Court finds that all but Claim 12 (P 88) are barred. Under Ohio’s contemporaneous objection rule, an appellant who fails to either object or request a specific instruction at trial waives later review of the issue unless he shows plain error. See State v. Smith, 89 Ohio St. 3d 323, 332, 731 N.E.2d 645, 655 (2000). Plain error involves an error that so adversely affects the rights of the accused “‘as to feed s investigate. She discovered a nude white female, uncons »us and “barely living.” The woman was trying to speak, “but nothing was coming out.” Brown ran to a nearby house to call 911. When she returned, she covered the victim with a borrowed blanket and waited with the victim for the ambulance to arrive. Brown specifically testified that the victim was wearing no jewelry. The victim was taken to a hospital, where she died. David Perkins later identified the victim as his wife, Amy Perkins. About twenty-five minutes after the shooting, the owner of a nearby deli noticed a gray Toyota with Texas plates parked in his lot. When he later went out to look at the car and saw its broken windshield and blood in the car, he called the police. When the police arrived, they found a Federal brand .32 caliber shell casing five to ten feet from the driver’s side of the car. In the car, police found the victim’s clothing, a checkbook, some personal items that appeared to have been rifled through, and fresh blood on the floor. Davis did not report to work on November 26 and did not answer the phone when his boss called his home at 8:45 a.m. Later that morning, however, Davis went to his sister Annette’s house, which is located approximately three hundred yards from where the victim’s car was discovered. When Davis arrived, his sweatsuit had bloodstains on the right side, which Davis explained by claiming that he accidentally shot someone in an altercation. Davis asked Annette’s boyfriend, Alfonso Herring, Jr., to loan him a pair of pants and keep the gun for him. Herring hid the gun in a closet and gave Davis a pair of work pants and a sweatshirt. Davis changed and washed the blood off his sweatsuit, which he left hanging in the bathroom. Davis left his sister's house at 9:40 a.m. with his mother. 74a Later that afternoon, Cleveland police arrested Davis at his girlfriend’s house. When the officers executed a warrant to search the house, they found a right shoe with bloodstains on its right-hand side, above the heel, a box of Federal brand .32 caliber ammunition and loose bullets of the same type, but no gun. After being warned that the police had asked for Annette’s address, Herring took Davis’s clothes and the gun from the closet, put them in the trunk of his car, and left. Despite a request from Davis not to turn over the gun and clothes to the police, on November 29, upon the advice of an attorney and his father, Herring turned the items over to police. A Cleveland police firearms examiner test-fired the gun turned in by Herring and after considerable analysis determined that the casing found in the deli parking lot had been fired from the gun turned over by Herring. Further, the county coroner’s office found Group O blood on Davis’s right shoe and the right sleeve of his sweatsuit. However, both Davis and Perkins had Group O blood. Yellow stains on the sweatsuit’s right shoulder and left leg could not be identified as blood, but a stain on the right leg tested positive for “human protein.” Amy’s husband, David, identified the car as Amy’s and testified that his wife always wore a custom-made engagement wedding ring and a woman’s Rolex watch. He further testified that the jewelry has been missing since Amy’s death. Davis was ultimately charged on four counts. Counts One and Two charged aggravated murder under R.C. 2903.01(A) and (B). Each count carried three felony-murder capital specifications--kidnapping, aggravated robbery and rape/attempted rape. Davis was also charged separately with 75a kidnapping and aggravated robbery. The jury convicted Davis of al! counts listed above and all specifications thereto and recommended death sentences on Counts One and Two. The trial court sentenced Davis to death and ordered him heid in solitary confinement on the twenty-sixth day of each month until his execution. The court of appeals affirmed the convictions and the sentence except for the solitary confinement provision. The cause is now before this court upon an appeal as of right. DISPOSITION Judgment affirmed in part and reversed in part. COUNSEL Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Frank Gasper and Diane Smilanick, Assistant Prosecuting Attorneys, for appellee. David L. Doughten and John P. Parker, for appellant. JUDGES MOYER, C.J., F.E. SWEENEY, PFEIFER AND STRATTON, JJ., CONCUR. DOUGLAS AND RESNICK, JJ., CONCUR IN JUDGMENT ONLY. oe ana 76a OPINION BY: COOK OPINION Cook, J. Davis has presented this court with sixteen propositions of law pertaining to both the guilt and sentencing phases of his trial. Pursuant to the mandate of R.C. 2929.05(A), we have considered each of appellant’s propositions of law and have reviewed the sentence for appropriateness and proportionality. We have previously held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each and every proposition of law raised in a capital case. See, e.g., State v. Allen (1995), 73 Ohio St. 3d 626, 628, 653 N.E.2d 675, 680; State v. Poindexter (1988), 36 Ohio St. 3d I, 3, 520 N.E.2d 568, 570. Accordingly, we continue to adhere to our view on this issue and address only those issues that warrant discussion. For the following reasons, we affirm the court of appeals’ judgment and uphold Davis’s death sentence. I. The Guilt Phase A. Venue/Pretrial Publicity The critical issue in Davis’s first proposition of law is whether the trial court’s refusal to change venue violated Davis’s fair trial rights. In order to safeguard the fair trial rights of a defendant, a trial court can change venue “when it appears that a fair and impartial trial cannot be held” in that court. Crim.R. 18; R.C. 2901.12(K). In State v. Lundgren (1995), 73 Ohio St. 3d 474, 479, 653 N.E.2d 304, 313, we reaffirmed our position that “““{a] change of venue rests 77a largely in the discretion of the trial court, and *** appellate courts should not disturb the trial court’s [venue] ruling *** unless it is clearly shown that the trial court has abused its discretion.””’” (Citing State v. Maurer [1984], 15 Ohio St. 3d 239, 250, 15 Ohio B. Rep. 379, 388-389, 473 N.E.2d 768, 780, quoting State v. Fairbanks [1972] 32 Ohio St. 2d 34, 37, 61 Ohio Op. 2d 241, 243, 289 N.E.2d 352, 355.) Davis asserts that constant and excessive prejudicial media coverage before and during his trial made it impossible to seat an impartial jury, in spite of the trial court’s precautions and efforts during voir dire. The majority of the publicity about this case was disseminated in November and December 1991. The trial did not take place until May 1992. Compare State v. Landrum (1990), 53 Ohio St. 3d 107, 559 N.E.2d 710 (delay of trial to February from September arraignment found to have helped dissipate any effects from the pretrial publicity). While newspaper articles-—— did reference Perkins’s murder following a similar incident in March 1992, two months prior to trial, the articles mentioned the murder only briefly, and with no details. Pretrial print and electronic media coverage of the crime, while significant, did not act to deprive Davis of a fair trial. In State v. Bayless (1976), 48 Ohio St. 2d 73, 98, 2 Ohio Op. 3d 249, 262, 357 N.E.2d 1035, 1051, we concluded that “a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.” The transcript of voir dire indicates that publicit;) in this case, while significant, was not pervasive. Moreover, the trial court took substantial measures to ensure that pretrial publicity did not prejudice Davis’s right to a fair trial. The trial court individually questioned over sixty veniremen and all but a few were queried as to the impact of pretrial publicity, While a sizable majority knew at least 78a some details of the crime, ten knew nothing about the crime at all, and another eight had only vague, sketchy knowledge. The trial court readily excused those in the venire who had formed fixed opinions or were otherwise unsuitable. As such, the trial jury was not tainted by excessive exposure to pretrial publicity. In support of this conclusion, the record shows that the defense made only four challenges for cause and waived half of its peremptory challenges. Cf. Murphy v. Florida (1976), 421 U.S. 794, 803, 95 S. Ct. 2031, 2037, 44 L. Ed. 2d 589, 596; and State v. Thompson (1987), 33 Ohio St. 3d 1, 5,514 N.E.2d 407, 413. Davis also maintains that there was “continuous” media coverage during voir dire. However, the record does not show the content or amount of such coverage at that time. Moreover, the court instructed all veniremen at the outset not to read, watch, or listen to any media accounts of the trial until being dismissed from the case, and there is no evidence that anyone disobeyed this warning. In light of the foregoing, we conclude that the media coverage surrounding this case was not so pervasive and sensational as to preclude a fair trial in Cuyahoga County. In addition to the general publicity issue, Davis also asserts that publication by the media of his criminal record, along with information “highly probative of his guilt,” was enough to create a presumption of prejudice. However, this claim ignores the mandate of Murphy v. Florida, which held that pretrial publicity about a defendant’s criminal record does not create an automatic presumption of prejudice. Murphy, 421 U.S. at 798, 95 S. Ct. at 2035, 44 L. Ed. 2d at 593-594. Davis’s first proposition of law is overruled. 79a B. Pretrial Lineups Davis’s second proposition of law similarly lacks merit. He proposes that we rule that the trial court erred in failing to suppress the identification testimony of three witnesses at trial because the witnesses’ identifications resulted from unduly suggestive lineups and were not otherwise reliable. Mattie Baker, Nancy Brown, and Diane Tomc, who saw Davis in downtown Cleveland on November 26, around 7:45 in the vicinity of the parking lot where the abduction occurred, all identified Davis in lineups as the man they saw on November 26, 1991. When a witness has been confronted with a suspect before trial, due process requires a court to suppress an identification of the suspect if the confrontation was unnecessarily suggestive of the suspect’s guilt and the identification was unreliable under all the circumstances. State v. Waddy (1992), 63 Ohio St. 3d 424, 438, 588 N.E.2d 819, 830-831, citing Manson v. Brathwaite (1977), 432 U.S. 98, 116, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140, 155, and Neil v. Biggers (1972), 409 U.S. 188, 196-198, 93 S. Ct. 375, 381-382, 34 L. Ed. 2d 401, 410-411. However, no due process violation will be found where an identification does not stem from an impermissibly suggestive confrontation, but is instead the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U.S. 1, 5-6, 90 S. Ct. 1999, 2001, 26 L. Ed. 2d 387, 394. The day after the murder occurred, Baker and Brown picked Davis out of a lineup and identified him as the man they saw with Amy Perkins. A week later, Tome also picked Davis out of a lineup as the man she saw near the crime scene shortly before the kidnapping. Davis claims these lineups were unnecessarily suggestive, because the other participants looked so unlike him that he stood out. 80a On both November 27 and December 3, Davis was lined up with five other black males. All, including Davis, had facial hair; however, the complexions of the men varied and none had a bushy, curly hairstyle like Davis’s. A defendant in a lineup need not be surrounded by people nearly identical in appearance. New York v. C hipp (1990), 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 77, 552 N.E.2d 608, 613.- “Even *** significant dissimilarities of appearance or dress” will not necessarily deny due process. | LaFave & Israel. Criminal Procedure (1984) 587, Section 7.4. Davis also argues that he was the only one in either lineup with jail slippers on his feet and no street clothes under his jail uniform. However, this did not affect the integrity of the lineups. Baker, Tomc, and Detective Leo Allen of the Cleveland Police Department testified that the participants’ street clothes were not visible under the jail uniforms. Their footwear may have been visible, but the witnesses were told to look at faces only. Baker thought all the participants “had on basically the same slippers,” and Tome could not recall whether they had any footwear on. Even if we were to accept Davis’s contention that the lineups were unnecessarily suggestive, the identifications were nonetheless reliable under the totality of the circumstances. In order to determine the reliability of the identification, we must consider (1) the witness’s opportunity to view the defendant at the time of the incident, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description, (4) the witness’s certainty when identifying the suspect at the time of the confrontation, and (5) the length of time elapsed between the crime and the identification. Waddy, 69 Ohio St. 3d at 439, 588 N.E.2d at 531, citing Neil, 409 U.S. at 199-200, 93 S. Ct. at 382, 34 L. Ed. 2d at 411. 8la Baker knew Davis, having seen him more than twenty times before. While she testified at trial that she saw Davis on television before the lineup, at the voir dire of identification witnesses she did not so testify, and Davis did not renew his motion to suppress in light of Baker's trial testimony. See State v. Campbell (1994), 69 Ohio St. 3d 38, 45, 630 N.E.2d 339, 348. Davis also argues that Detective Allen tainted Baker’s identification by asking her “to identify Wiley Davis in a lineup.” However, Baker testified that she did not recall Allen’s exact words, and even if Allen did use Wiley Davis’s name, Baker recognized Davis only because of his employment at the restaurant she frequented and did not know him by name. Even assuming Allen used Davis’s name, that would not affect the reliability of Baker’s identification. - Brown’s identification is also reliable. She had a_good opportunity to see the driver as the car rolled past her, close at hand and “slow enough for me to get a good look *** .” Her attention was undivided, and her identification was positive. While Davis claims Brown’s identification was tainted by news coverage, Brown testified that she did not see any photos of Davis in the news media before the lineup. Of the three identifications, Tomc’s is the most problematic, however, her testimony at trial merely placed Davis near, but not at, the parking lot about half an hour before Baker placed him in the car with the victim. Independent of Tomc’s testimony, the state produced overwhelming proof that Davis was Perkins’s_ killer. Accordingly, even assuming error in the trial court’s admission of Tomc’s identification testimony, we would be unable to conclude that such error compels a reversal of Davis’s conviction. State v. Williams (1983), 6 Ohio St. 3d 281, 290, 6 Ohio B. Rep. 345, 353, 452 N.E.2d 1323, 1333, citing Harrington v. California (1969), 395 U.S. 250, 254, 89 S. Ct. 1726, 1728-1729, 23 L. Ed. 2d 284, 287-288. 82a Davis’s second proposition of law is overruled. C. Attempted Rape We find merit in Davis’s third proposition of law, in which he contends that the state failed to prove him guilty of the attempted rape specifications. Attempted rape requires that the actor (1) intend to compel submission to sexual conduct by force or threat, and (2) commit some act that “convincingly demonstrates’” such intent. See State v. Heinish (1990), 50 Ohio St. 3d 231, 238- 239, 553 N.E.2d 1026, 1035, quoting State v. Woods (1976), 48 Ohio St. 2d 127, 132, 2 Ohio Op. 3d 289, 292, 357 N.E.2d 1059, 1063. The only evidence supporting the attempted rape specifications is Gwendolyn Brice’s testimony that just before Davis shot Perkins, Brice saw Perkins trying to push Davis away, acting as if “she [Perkins] didn’t want to do something,” the fact that Perkins was nude when Davis dumped her from the car, and the forensic evidence showing that there were possible finger marks on Perkins’s left thigh. While removing the victim’s clothing can amount to a “substantial step” toward the commission of rape, State v. Powell (1990), 49 Ohio St. 3d 255, 261, 552 N.E.2d 191, 198, a defendant cannot be convicted of attempted rape solely on evidence that he removed the victim’s clothing. There must be evidence indicating purpose to commit rape instead of some other sex offense, such as gross sexual imposition, R.C. 2907.05, which requires only sexual contact. See Heinish, 50 Ohio St. 3d at 238-239, 553 N.E.2d at 1035. In Heinish, this court found that a victim’s partial nudity combined with saliva on the crotch of her blue jeans was insufficient to show intent to rape. Justice Wright, writing for a majority of the Heinish court, commented that while “one 83a may be tempted to speculate and indeed strongly suspect that crimes other than murder were committed * * *, we would be remiss in performing our duties of review if we let the attempted rape conviction stand.” /d. at 239, 553 N.E.2d at 1035. Brice’s testimony that Perkins seemed to be trying to push Davis away from her shortly before the shooting occurred is not strongly corroborative of Davis’s intent to accomplish sexual conduct. Further, there was no testimony that imprints suggestive of finger marks left on Perkins’s thigh were indicative of an attempt to compel sexual conduct as opposed to sexual contact. Contrast State v. Scudder (1994), 71 Ohio St. 3d 263, 643 N.E.2d 524 (where, along with other evidence indicative of the defendant's intent to commit rape, the court found that bloody hand marks on the victim’s thighs were in such a pattern so as to indicate that the killer had tried to force the victim’s legs apart). Based on the evidence presented, we find there was insufficient evidence to prove beyond a reasonable doubt that Davis attempted to rape Perkins. Accordingly, we must reverse the attempted rape specifications. Despite our reversal of Davis’s attempted rape specifications, we are not required to vacate his death sentence. We must independently reweigh the remaining aggravating circumstances against the mitigating factors. See Clemons v. Mississippi (1990), 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725. Accordingly, we sustain Davis’s third proposition of law, reverse the court of appeals with respect to the attempted rape specifications, and exclude those specifications from our independent review of aggravating circumstances and mitigating factors. 84a D. Aggravated Robbery Davis claims in his fourth proposition that there was insufficient evidence of aggravated robbery to support a conviction. R.C. 29/1.01(A)(2) states, “No person, in attempting or committing a theft offense, *** shall **# inflict or attempt to inflict serious physical harm on another.” Davis argues that the prosecution failed to prove a “theft offense” under R.C. 29/3.02. This claim lacks merit. Amy Perkins’s husband, David, testified that Amy “habitually” wore “a combination engagement and wedding ring” consisting of twelve small diamonds and a two-carat marquise, “and she also habitually wore a Rolex watch *** : David specifically said Amy “wore the items every day.” Thus, even though David could not testify from personal knowledge that Amy wore the items on the day she was murdered, a jury could reasonably infer that she did. Nancy Brown, who saw Amy immediately after she was pushed out of the car, specifically testified that Amy had “no jewelry, no clothing, nothing on.” David Perkins testified that the watch and ring were “missing” and he never saw them again. Amy’s belongings which were found in the Toyota “appeared to have been rifled through.” The majority of the evidence supporting Davis’s conviction of a theft offense is circumstantial; however, circumstantial evidence inherently possesses the same value as direct evidence. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph one of the syllabus. Such evidence, when coupled with the circumstances of the kidnapping and murder, is sufficient for a rational jury to find beyond a reasonable doubt that a theft offense took place. See State v. Allen (1995 ), 73 Ohio St. 3d 626, 632, 653 N.E.2d 675, 683. Davis’s fourth proposition of law is overruled. 85a II. Penalty Phase A. Jury Instructions In his eleventh proposition of law, Davis argues that the trial court improperly gave the jury an “acquittal first” instruction during the penalty phase of the trial. In support of this proposition, Davis cites State v. Thomas (1988), 40 Ohio St. 3d 213, 533 N.E.2d 286, wherein this court outlined the progression that a jury must follow when the trial court charges it on the indicted offense as well as a lesser included offense or offenses: “A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that the defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense.” /d. at paragraph three of the syllabus. Thomas dealt with jury instructions regarding a guilt determination and therefore is not directly applicable to the death penalty versus life imprisonment recommendation that a jury is required to make in the penalty phase of a capital case. Nevertheless, Davis’s argument that a “proper [jury] instruction would have informed the jury that had the state failed to prove the principal charge or had the jury been unable to agree on whether the state had failed to prove the elements of the greater offense[,] it could have considered the lesser charge” raises an issue identical to that which formed the basis of our recent decision to overturn a death sentence in State v. Brooks (1996), 75 Ohio St. 3d 148, 661 N.E.2d 1030. Because the pertinent jury instructions given in this | 86a case are distinguishable from those given in Brooks, however, this case warrants dissimilar disposition. In Brooks, the trial court charged the jury that “‘you are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence.’”” (Emphasis added.) /d. at 159, 661 N.E.2d at 1040. As a result of this instruction, the jury was required to issue a death sentence recommendation unless each juror was convinced that the death penalty was inappropriate. Jd. at 160, 661 N.E.2d at 1041. The Brooks court found error in the trial court’s instruction because it was in direct conflict with R.C. 2929.03(D)(2). The Brooks court concluded that the erroneous jury instruction was prejudicial to the defendant because it gave jurors the impression that a single juror could not prevent a death penalty recommendation on his or her conviction that the aggravating circumstances in a case do not outweigh the mitigating factors. Davis cites the following portion of the trial court’s jury instructions in support of his argument: “On the other hand, if after considering all of the relevant evidence raised at trial, the testimony, other evidence, the unsworn statement of Wiley Davis, Jr. and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt _ that the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision; that is, you must find that the State has failed to prove beyond a _ reasonable doubt _ that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors. 87a “In this event you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court.” However, Davis has omitted the first portion of the trial court's charge, which states: “Tf all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances which Wiley Davis, Jr. was found guilty of committing outweigh the mitigating factors, if any, then you must return such finding for the Court.” (Emphasis added.) When read as a whole, the trial court’s instruction effectively informed the jury that a death penalty recommendation could be returned only after a unanimous vote that the aggravating circumstances that Davis was found guilty of committing outweigh the mitigating factor presented in the case beyond a reasonable doubt. Moreover, unlike the instructions given in Brooks, the jury was not instructed that it was required to unanimously determine that the death penalty was inappropriate before it could consider the life sentence alternatives. Nevertheless, it cannot be disputed that the jury instruction given in this case lacks the clarity of the model instruction contemplated in Brooks, which urges trial courts to underscore a solitary juror's ability to prevent a death penalty recommendation. In the instant case, in addition to giving the contested charge, the trial court read the verdict forms to the jury and thereafter charged it that all twelve jurors were required to be in agreement before returning any of the verdicts. The court also instructed the jury as follows: “Now, your initial conduct upon entering the jury room, again, is a matter of importance. You should consult with each other; consider each other’s views, and deliberate with 2. eee ase) RRS ae A Mera SN) ARES OT 88a an objective of reaching an agreement, if you can do so, without doing violence to your individual conscience and good judgment. “You should do so only after a discussion and a consideration of the case with your fellow jurors. ‘Remember, each of you is equal in the jury room, and you shouldn't hesitate to change your opinion if convinced by your felicw jurors that you are wrong. “However, do not surrender any honest conviction in order to be congenial, or to reach a verdict solely of the belief of the other jurors.” Upon review of all of the instructions given in this case, it is clear that the jury was adequately informed that unanimity was required to return a death penalty recommendation. Each juror was made aware that he or she could prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors—an essential fact which sets this case apart from Brooks. Because Davis has failed to demonstrate that his right to a fair trial was prejudiced as a result of the contested jury instruction, we overrule his eleventh proposition of law. In his fifth proposition of law, Davis contends that, in order to convict on the R.C.2929.04(A )(7) specifications, the jury had to find unanimously either that Davis was the principal offender or that he killed with prior calculation and design. Davis claims error because the jury was not so instructed; however, Davis did not request any such instruction at trial. Under the plain error rule, Davis can prevail only by showing that “but for the [alleged] error, the outcome of the trial clearly would have been otherwise.” State v. Long (1979), 53 Ohio St. 2d 91, 7 Ohio Op. 3d 178, 372 N.E.2d 804, paragraph two of the syllabus. 89a We find that the alleged error here was not outcome- determinative. The jury convicted Davis of aggravated murder on Count One of the indictment. To do so, the jury -had to unanimously find prior calculation and design. Further, because there was no evidence produced at trial that a second actor participated in committing the aggravated murder, the jury’s unanimous verdict necessarily includes a finding that Davis was the principal offender. See State v. Woodard (1993), 68 Ohio St. 3d 70, 74-75, 623 N.E.2d 75, 78-79. Count Two of the indictment charged Davis with killing Perkins in the course of committing, attempting, or fleeing the commission or attempted commission of “Kidnapping and/or Aggravated Robbery and/or Rape.” (Emphasis added.) Davis contends that the jury had to unanimously determine which felony had been committed, and should have been so instructed. Again, Davis did not request such an instruction, waiving this issue absent ptain error. We find that the alleged error was not outcome-determinative. Although Count Two was worded disjunctively, both it and Count One carried a separate felony-murder specification for each of the felonies alleged. The jury convicted Davis of each specification individually. The jury also separately convicted Davis of kidnapping (Count Three) and aggravated robbery (Count Four). Because the jury made a separate, unanimous finding of guilt as to each of the predicate felonies, there is no plain error. Davis’s fifth proposition of law is overruled. B. Prosecutorial Misconduct In his seventh proposition of law, Davis maintains that three comments in the prosecutor’s penalty-phase closing 90a argument were improper. He argues that the prosecutor’s reference to the defendant’s unsworn statement, an appeal to the jury’s sense of outrage, and an argument on nonstatutory aggravating circumstances were all improper. However, the only comment to which Davis objected at trial was the prosecutor’s reference that Amy Perkins “died a horrible death,” was dumped onto the street “like garbage *** with no clothes on, for anybody to take a look at her,” and had a large head wound that steamed in the cold air, While we find that most of the disputed statement was fair comment on the evidence and within the bounds of the prosecutor’s wide latitude in closing argument, the reference to the steaming head wound is arguably improper because it tended to focus attention on the grotesque aspects of the crime. Cf. Thompson, 33 Ohio St. 3d at 14-15, 514 N.E.2d at 420; State v. Keenan (1993), 66 Ohio St. 3d 402, 407-408, 613 N.E.2d 203, 208. However, the prosecutor’s improper comment was isolated and did not deprive the defendant of a fair trial. Therefore, it does not constitute reversible error. See Smith v. Phillips (1982), 455 U.S. 209, 220, 102 S. Ct. 940, 947, 71 L. Ed. 2d 78, 88, fn. 10. Because Davis failed to object at trial to the following comments, he waived any error unless he can demonstrate plain error. However, we need not invoke a plain error analysis, as neither of the complained of prosecutorial comments.constituted misconduct. Davis first complains of the prosecutor’s comment that Davis’s unsworn statement “was not subject to cross- examination.” Davis claims that such a comment is forbidden by State v. DePew (1988), 38 Ohio St. 3d 275, 528 N.E.2d 542, paragraph two of the syllabus. 9la DePew holds that “the prosecutor may comment that the defendant’s statement has not been made under oath * * *, but such comment must be limited to reminding the jury that the defendant’s statement was not made under oath, in contrast to the testimony of all other witnesses.” /d. DePew limits only prosecutorial comment on the lack of an oath. In contrast, prosecutorial comment on the lack of cross- q examination is consistent with DePew. See State v. Murphy (1992), 65 Ohio St. 3d 554, 579, 605 N.E.2d 884, 904. Davis additionally bases an allegation of misconduct on the prosecutor's comment that “the Judge is going to instruct you that you must consider the nature of the offense, the history, character, and background of the offender.” Davis claims that the prosecutor could not discuss these issues, since the defense did not raise them in mitigation. DePew, ~-—— supra. However, under R.C. 2929.04(B) the jury must consider the nature and circumstances of the offense and the offender's history, character, and background, whether the defense raises these issues or not. Therefore, it is proper for a prosecutor to discuss them. State v. Gumm (1995), 73 Ohio St. 3d 413, 416-423, 653 N.E.2d 253, 259-264. As such, we find that the prosecutor here did not try to mislead the jury into considering and weighing these factors as aggravating circumstances, see id. at 422, 653 N.E.2d at 263-264, and overrule Davis’s seventh proposition of law. C. Merger In his fifteenth proposition of law, Davis contends that the trial court erred by failing to merge the two aggravated murder counts before submitting the question of penalty to the jury. However, pursuant to State v. Poindexter (1988), 36 Ohio St. 3d 1, 5,520 N.E.2d 568, 572, this is not required. Os eee eee 92a We conclude that the trial judge should have merged the two counts before finally sentencing Davis. See State vy. Huertas (1990), 51 Ohio St. 3d 22, 28, 553 N.E.2d 1058. 1066. Accordingly, we merge the two convictions so that a single death sentence remains. State v. Hawkins (1993), 66 Ohio St. 3d 339, 346, 612 N.E.2d 1227, 1232. Because the error in sentencing was merely procedural and did not invoive any substantial right, it constitutes harmless error. State v. Brown (1988), 38 Ohio St. 3d 30S, 317-318, 528 N.E.2d 523, 538-539. Accordingly, we merge Davis’s aggravated murder convictions and overrule Davis’s fifteenth proposition of law in all other respects. III. Sentencing Opinion In his fourteenth proposition, Davis contends that the trial court’s sentencing analysis was flawed. However, errors in the sentencing opinion can be corrected by this court’s independent reweighing of aggravation and mitigation. See., e.g., State v. Fox (1994), 69 Ohio St. 3d 183, 191-192, 631 N.E.2d 124, 131. Davis argues that the opinion was factually inaccurate. The opinion states, “Once [Davis] had isolated his innocent victim, he moved with practiced precision.” It continues with the statement that Davis “made Amy Perkins beg and plead for her life.” While these statements are not supported by the record, this court’s independent review can correct that problem by not relying on them. Allen, 73 Ohio St. 3d at 643, 653 N.E.2d at 690. Further, while we find that the opinion conveys a tone of moral outrage, the opinion’s substance does not support Davis’s inference that the trial court considered and weighed the nature and circumstances as a nonstatutory aggravating circumstance. Therefore, this proposition is overruled. 93a IV. Ineffective Assistance of Counsel Davis claims in his thirteenth proposition that his trial counsel was ineffective because counsel failed to preserve the claims presented in his fifth, sixth, seventh, ninth, eleventh, and twelfth propositions. We find that Davis’s counsel did not perform deficiently. The disputed propositions either did not constitute error or were harmless. Further, given the strong evidence of guilt and the inconsequential mitigation, we find that these alleged errors are not prejudicial under Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, because they do not undermine any confidence in the reliability of the result. There can be no claim “that the decision reached would reasonably likely have been different absent the [alleged] errors.” /d. at 696, 104 §. Ct. at 2069, 80 L. Ed. 2d at 699; State v. Bradley (1989), 42 Ohio St. 3d 136, 143, 538 N.E.2d 373, 380. Davis’s thirteenth proposition is overruled. V. Independent Sentence Assessment A. Aggravating Circumstances v. Mitigating Factor Having found that the evidence shows beyond a reasonable doubt that Davis committed the murder while committing or attempting to commit aggravated robbery and kidnapping, we now turn to our independent assessment of whether the aggravating circumstances Davis was found guilty of committing outweigh the mitigating factor adduced by Davis. We determine that the aggravating circumstances outweigh the mitigating factor presented beyond a reasonable doubt. 94a The defense essentially proffered no mitigating factors at all, except brief pleas for mercy by Davis, his wife, his sister, and his employer. Davis’s entire unsworn statement was: “I am a little nervous right now, but I respect you all and you all’s decision, and I just beg you all, spare my life. “I understand what the Perkins family is going through, but my family is going through it too. That’s all I got to say.” Davis’s counsel expre:sly disclaimed reliance on the specific mitigating factors in R.C. 2929.04(B)(1) through (6) and relied solely on R.C. 2929.04(B)(7)—“Any other factors that are relevant to *** whether the offender should be sentenced to death.” In very brief closing argument, counsel asked for mercy, emphasized the jury’s “tremendous” responsibility, and asserted that “there must be something there worth saving” because Davis’s employer had testified for him in both phases of trial, whereas “most employers would distance themselves *** from someone charged with a crime.” The defense was unable to produce anything more, despite an extensive investigation that included a thorough search for mitigating factors. While pleas for mercy made by Davis’s wife, sister, and employer deserve some consideration, see State v. Webb (1994), 70 Ohio St. 3d 325, 342-343, 638 N.E.2d 1 023, 1038, the mercy pleas practically stand alone as mitigating evidence. There is little or no mitigation in the nature and circumstances of the offense. Further, the defense presented no evidence of Davis’s history, his character, or background. Davis was convicted of two valid death specifications: kidnapping and aggravated robbery. Because these outweigh the mitigating factor beyond a reasonable doubt, we find that the death sentence is appropriate. B. Proportionality We also conclude that the penalty imposed is proportionate when compared with similar capital cases. This court has upheld death sentences in two cases involving kidnapping and aggravated robbery See State v. Rue (1989), 41 Ohio St. 3d 18, 28-29, 535 N.E.2d 1351, 1363, and State v. Cook (1992), 65 Ohio St. 3d 516, 530-531, 605 N.E.2d 70, 85. Moreover, the court has often upheld death sentences where only one of these aggravating circumstances existed. See, e.g., State v. Morales (1987), 32 Ohio St. 3d 252, 513 N.E.2d 267, and State v. D’ Ambrosio (1995), 73 Ohio St. 3d 141, 652 N.E.2d 710 (kidnapping); State v. Clark (1988), 38 Ohio St. 3d 252, 527 N.E.2d 844, State v. Carter (1995), 72 Ohio St. 3d 545, 651 N.E.2d 965, State v. Allen, supra ~ (aggravated robbery). Thus, the sentence is proportionate to those imposed in similar cases. VI. Conclusion We reverse the judgment of the court of appeals with respect to Davis’s conviction of the attempted rape specifications and the merger of Davis’s aggravated murder convictions and affirm its judgment and the sentence imposed in all other respects. 96a Judgment affirmed in part and reversed in part. MOYER, C.J., F.E. SWEENEY, PFEIFER AND STRATTON, JJ., CONCUR. DOUGLAS AND RESNICK, JJ., CONCUR IN JUDGMENT ONLY. APPENDIX Proposition of Law No. 1: “The trial court must grant a change of venue where the extensive pretrial publicity renders it impossible for the defendant to obtain a fair trial.” Proposition of Law No. 2: “A conviction which arises from an unduly suggestive lineup must be overturned as such a conviction is violative of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution.” Proposition of Law No. 3: “A criminal conviction for attempted rape may not be sustained where the evidence Supporting the charge does not constitute proof beyond a reasonable doubt.” Proposition of Law No. 4: “In order to sustain a conviction of aggravated robbery and a corresponding capital specification, the jury must find beyond a reasonable doubt as to each and every element of R.C. § 29//.0/ and R.C. § 2929.04(A)(7).” Proposition of Law No. 5: “Failure to find an essential element of a capital specification results in the invalidation of that specification.” Proposition of Law No. 6: “The injection of irrelevant trial phase evidence into the penalty phase deliberation violates the integrity of the verdict.” 97a Proposition of Law No. 7: “During the closing argument of the penalty phase, the prosecutor may not improperly comment on the defendant’s unsworn statement, appeal to the jury’s sense of outrage, or argue non-statutory aggravating factors.” Proposition of Law No. 8: “The trial court and the prosecutor may not instruct the jury that their decision in the penalty phase is a recommendation. This instruction is a violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10 and 16 of the Ohio Constitution.” Proposition of Law No. 9: “Where the trial court improperly instructs the jury that the specifications of the indictment are in fact the aggravating circumstances, the resultant sentence of death is improper because the constitutionally required narrowing has been violated.” Proposition of Law No. 10: “When requested, the trial court must provide the jury with an instruction regarding residual doubt during the penalty phase of a capital trial.” Proposition of Law No. 11: “The trial court may not provide the jury with an ‘acquittal first’ instruction during the penalty phase of a capital trial.” Proposition of Law No. 12: “The trial court must provide accurate penalty phase instructions. Where inaccurate instructions misguide the jury as to their duties under the law, the resultant sentence is unreliable and violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10 and 16 of the Ohio Constitution.” Proposition of Law No. 13: “Where trial counsel fails to object to erroneous jury instructions and improper comments 98a of the prosecutor, the defendant is denied effective assistance of counsel where there is a reasonable probability that the death sentence would not have been recommended had the objections been proffered.” Proposition of Law No. 14: “A death sentence may not be sustained where the mitigating factors presented at trial outweigh the statutory aggravating factors present in the case.” Proposition of Law No. 15: “The trial court may not sentence a defendant to death two times for a single homicide. This double sentence violates R.C. § 2941 .25(A) and the Double Jeopardy Clause contained in Section 10, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution.” Proposition of Law No. 16: “Imposition of the death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2,9, 10 and 16, Article I, of the Ohio Constitution. “A. The death penalty authorized by the Ohio Revised Code deprives capitally-charged defendants of their lives without due process of law, denies equal protection and imposes cruel and unusual punishment in violation of the Ohio and United States Constitutions. “B. R.C. § 2929.022, § 2929.03, and § 2929.04 violate the accused's rights to effective assistance of counsel and to a trial before an impartial jury, as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 9, 10, and 16, Article [I] of the Ohio Constitution. “C. R.C. § 2929.03, § 2929.04 and § 2929.022 violate the Eighth and Fourteenth Amendments to the United States 99a Constitution and Sections 9 and 16, Article I of the Ohio Constitution by failing to provide adequate guidelines for deliberation, leaving the jury without proper guidelines in balancing the aggravating circumstances and mitigating factors. “D. RC. §2929.022, § 2929.03 and § 2929.04 and Crim. R. 11(C)(3) place an unconstitutional burden on the accused’s right to a jury trial under the Sixth, and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution and his rights to be free from compulsory self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution. “E. R.C. § 2929.03 fails to provide a meaningful basis for distinguishing between life and death sentences, as it does not explicitly require the jury, when it recommends life imprisonment, to specify the mitigating factors found, or to identify its reasons for such sentence. This denies the accused his rights under R.C. § 2929.03(A), the Ohio Constitution and the Federal Constitution. “F. R.C. § 2929.02], § 2929.03 and § 2929.05 fail to assure adequate appellate analysis of arbitrariness, excessiveness and disproportionality of death sentences and the Ohio Supreme Court fails to engage in a level of analysis that ensures against arbitrary death sentencing. “G. The appellate review provision of R.C. § 2929.05 fails to specifically require inquiry and findings regarding arbitrariness, passion or _ prejudice, and_ thus _ is constitutionally inadequate under the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16 [of Article I] of the Ohio Constitution. 100a “H. The Ohio death penalty statute impermissibly mandates imposition of the death penalty and precludes a mercy option in the absence of mitigating evidence or when aggravating circumstances outweigh mitigating factors. The statute also fails to require a determination that death is the appropriate punishment. “I. R.C. $ 2929.03, § 2929.04 and § 2929.05 violate the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution by failing to require the jury to decide the appropriateness of the death penalty. “J. The Ohio death penalty scheme permits imposition of the death penalty on a less than adequate showing of culpability by failing to require a conscious desire to kill, premeditation, or deliberation as the culpable mental state. “K. The Ohio ‘beyond a reasonable doubt’ standard of proof fails to meet the requirement for higher reliability for the guilt determination phase of a capital case. “L. The aggravating circumstance the accused is charged with committing, R.C. § 2929.04(A)(7), is constitutionally invalid when used to aggravate R.C. § 2903.01(B), aggravated murder. “M. R.C. § 2929.03, § 2929.04 and § 2929.05 violate the Eighth and Fourteenth Amendments to the United States Constitution and Article [I], Sections 9 and 16 of the Ohio Constitution by failing to properly allocate the. burden of proof during [the] mitigation phase of trial.” 10la - APPENDIX E THE STATE OF OHIO, ss: DONALD C. NUGENT, J. COUNTY OF CUYAHOGA, IN THE COURT OF COMMON PLEAS (CRIMINAL BRANCH) THE STATE OF OHIO, PLAINTIFF, CASE NO. 1:99 CV 1649 Ve WILEY DAVIS, JR., DEFENDANT. PARTIAL TRANSCRIPT OF TRIAL PROCEEDINGS Pages 1881-1889 and 1890-1895 [1881] Now, the State of Ohio has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are sufficient to outweigh the factor or factors, if any, in mitigation of the imposition of the sentence of death. Again, what is reasonable doubt? As you know the Legislature of the State of Ohio has defined reasonable doubt as follows: l 02a 4 - [1882] “Reasonable doubt is present when after you have d carefully considered and compared all the evidence you cannot say you are firmly convinced of the truth of the charge. “Reasonable doubt is a doubt based on reason and common sense. “Reasonable doubt is not mere possible doubt because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. E: “Proof beyond a reasonable doubt is proof of such ¥ character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.” Now, what are the aggravating circumstances? Now, in this particular case the aggravating circumstances are precisely set forth in Specifications One, Two, and Three of your guilty verdict forms as to Count One and Count Two of the indictment, and I have read them to you, and I have [1883] enumerated them again here in the instructions. 4 You can just refer to what I previously have read to 3 you. It is unnecessary for me to read them again. Now, the defendant shall be given great latitude in the presentation of evidence of any factor or factors in mitigation of the imposition of the sentence of death. The defendant shall have the burden of going forward with the evidence of any factor or factors in mitigation of the imposition of the sentence of death. Your determination as to the existence of any one or more factors in the mitigation of the imposition of the sentence of death must be predicated upon the evidence 103a presented in this case, both at trial, and during this sentencing proceeding. You may not speculate or conjecture about issues where there is no evidence. [1884] Notwithstanding the requirement that the defendant shall have the burden of going forward with the evidence of any factor in mitigation of the imposition of the sentence of death the prosecution shall have the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances that the defendant was found guilty of committing are sufficient to outweigh the factor or factors in mitigation of the imposition of the sentence of death. Now, the existence of any mitigating factor or factors does not preclude the imposition of a sentence of death upon Wiley Davis, Jr. has been found guilty of committing. Now, mitigating factors are factors that, while they do not justify or excuse the crime, nevertheless [1885] in fairness and mercy, may be considered by you as extenuating or reducing the degree of the defendant’s blame or punishment. These mitigating factors include but are not limited to the nature and circumstances of the offense or offenses, the history, character, and background of the offender, that are in the evidence, and any mitigating factor or factors that you may find from the evidence presented during trial and during this sentencing hearing. Now, during this sentencing hearing the defense presented testimony that you are to decide whether it is a relevant factor of mitigation to the issue of whether Wiley Davis, Jr. should be sentenced to death. 104a Now, you will be called upon to decide the factual questions as to whether or not the defendant in the first place produced any evidence as to any of the mitigating factors; that is, has the defendant met the [1886] burden of going forward with any evidence of any factor or factors in mitigation of the imposition of the sentence of death? If you find there is no evidence of any mitigating factor or factors you will still be required to determine whether the aggravating circumstances outweigh the non- existent mitigating factor or factors beyond a reasonable doubt. Now, to outweigh means to weigh more than, to be more important than. The existence of a mitigating factor or factors does not preclude or prevent the death sentence if the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. It is the quality of the evidence [1887] that must be given primary consideration by you. the quality of the evidence may or may not be the same with the quantity of the evidence; that is, the number of witnesses or exhibits presented. It is not only the quantity of the aggravating circumstances versus the quantity of the mitigating factors which is to be the basis of your decision. It is the quality— let me read that again. It is not only the quantity of the aggravating circumstances versus the quantity of the mitigating factors which is to be the basis of your decision. It is the quality or importance of the mitigating factors and the aggravating circumstances which must be considered. 105a Now, the procedure which you must follow in arriving at your verdict in the sentencing phase of the trial is set forth in Revised Code Section 2929.03 of the Revised Code of the State of Ohio. A summary digest of that Section [1888] provides that you, the trial jury, must consider all of the relevant evidence raised at trial, the testimony, other evidence, the unsworn statement of the defendant, Wiley Davis, Jr., and the arguments of counsel, and you must determine whether the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing, are sufficient to outweigh any mitigating factor or factors you find that are present in this case. If all twelve members of the jury find by proof beyond a_ reasonable doubt that the aggravating circumstances which Wiley Davis, Jr. was found guilty of committing outweigh the mit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1893%3A2. Public record. Not legal advice.