State v. Carter - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Justine Michael, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.
The State of Ohio, Appellee, v. Carter, Appellant.
[Cite as State v. Carter (1992), Ohio St.3d .]
Criminal law -- Aggravated murder -- Death penalty upheld,
when.
(No. 91-963 -- Submitted May 20, 1992 -- Decided July 22,
1992.)
Appeal from the Court of Appeals for Hamilton County, No.
C-890513.
In December 1988, Clarence Carter, defendant-appellant,
and Johnny Allen were inmates in Range "E" at the Jail Annex to
the Hamilton County Courthouse. Allen was being held on a
theft offense. Carter had been found guilty of aggravated
murder on December 9, 1988, and was awaiting sentencing. On
December 28, Carter struck and kicked Allen numerous times over
a twenty to twenty-five minute period, necessitating Allen's
hospitalization. On January 5, 1989, Carter was sentenced to
life imprisonment for the prior aggravated murder. On January
11, 1989, Allen died as a result of Carter's assault.
Inmate Joseph Carroll testified that he and Allen were
watching television on a mid-December evening when Carter came
in and switched channels. Allen said to Carter, "Don't we vote
on this?" Without saying anything, Carter punched Allen in the
eye, then resumed watching television. Allen left to clean up
the blood flowing from a cut above his eyebrow. Inmates Calvin
Johnson and Phillip Brewer confirm that Allen and Carter
exchanged words, and that Carter struck Allen. However,
Johnson and Brewer assert that Carter was watching TV, and
Allen changed the channel. Allen did not report this incident
to jail authorities.
Carroll further testified that about a week before
December 28, Carter found a broken metal spoon handle in a hole
in the shower ceiling. After a brief discussion with Brewer,
Carter returned the handle to its hiding place.
On December 28, after lunch, Johnson saw Carter retrieve
the metal handle from the shower ceiling. Johnson asked Carter
what he was going to do. Carter did not reply. About ten
minutes later, around 1:10 p.m., the confrontation which led to
Allen's death began in "E" range, a common area into which
approximately twelve cells open.

According to Carroll, Allen was in his cell when Carter
told him it was his turn to sweep the floor. As Allen walked
past Carter to get a broom, Carter "jumped on him, punched him,
[and] knocked him down." As Allen lay on the floor, Carter
"leaned over him, punched him, kicked him and choked him."
Several times during the assault Carter stopped and walked away
before returning to the attack. Twice he used a mop to wipe
blood off his tennis shoes. During the assault Carroll said to
Carter, "[d]amn C.C., you don't like him, do you." Carter
replied "no," and went "back down to where Johnny Allen was,
punched him, kicked him some more, stomped on him."
After the second beating, Allen managed to get up and sit
on a bench, but Carter came back, knocked him off the bench,
and continued to kick and choke Allen. Allen never threw a
punch or provoked Carter.
Inmate Calvin Steele described Carter's initial blow to
Allen as a "sucker punch," delivered suddenly and without
warning. Carter struck Allen ten or fifteen times. Allen
never struck or attempted to strike a blow at Carter. At one
point, Carter returned to his cell and stuck his own leg with
some kind of object; he then came back and stomped on Allen's
head with his foot. Carter's assault on Allen lasted twenty or
twenty-five minutes. When Steele asked Carter to stop, Carter
told Steele to "[g]et my ass back downstairs." (Steele was
standing outside the range in the "bull run," the guard's
access way.)
Richard Cunningham saw Carter hit Allen four or five
times, then choke Allen, who lay on the floor. As he was
beating Allen, Carter said, "[t]hat m..... f..... tried to stab
me." Carter seemed to be in a rage, but appeared to know what
he was doing.
Cunningham testified that "Carter started kicking him
[Allen] down the range by his head, and by his ribs, and * * *
he was pulling his head in my bars and stomping his head like a
pop can on the floor. And his head was bouncing up off the
floor. Blood was everywhere. Guys was on the range saying:
Come on, CC, you are going to kill the man. Quit. Leave him
alone. * * * Carter wouldn't let up. He kept on doing it and
doing it, he wouldn't quit."
Carter claimed that Allen assaulted him with the shank and
that he, Carter, merely defended himself, being carried away
with rage. According to inmate Robert Chapman, a defense
witness, the fight began when Allen, holding the metal spoon
handle, began hitting Carter. However, Chapman acknowledged
that he previously told investigators he was asleep. Howard
"Tub" Burns, a high school friend of Carter, heard Carter yell,
"Tub, get the police."
Brewer said he saw Carter and Allen arguing on December
28, and Allen was holding some kind of metal object in his
hand. After a few seconds, Brewer returned to his cell. He
explained, "[i]n a place like that you mind your own business,
and that's what I was doing."
Around 1:30 p.m., sheriff's deputies heard unusual noises,
like an object being banged against steel bars, and went to
investigate. When they arrived at "E" range, they found Allen
lying face down on the floor, in a pool of blood. Deputy
Raymond J. Loebker saw Carter drop the shank. Loebker

described Carter as sweating, breathing heavily, but without
any visible signs of injury. Sheriff's Lieutenant John Douglas
saw the metal handle on the floor, four feet from Allen, and
retrieved it for later examination.
Around 5:00 p.m., on December 28, Carter showed Detective
John Hinrichs scratches Carter said he sustained in his fight
with Allen. Carter had two or three scratches on his right
thigh, scratches on his right arm, and a cut on his chest.
None was deep or serious, and only the chest cut showed any
sign of possible bleeding. Carter, muscular and strong, was in
excellent physical condition.
Forensic examination revealed that Carter's socks, pants,
and tennis shoes all contained type "O" human blood. Allen had
type "O" blood, but Carter's blood type was not revealed at
trial. Carter's T-shirt also had human blood, but the stain
was not typed. Forensic examination revealed two human blood
stains on the metal shank -- one stain was type O, the other
was undetermined. The shank had no fingerprints on it.
The jury had to assess the credibility of the principal
witnesses under unusual circumstances. Only inmates witnessed
the assault, and they all had prior felony records.
Additionally, the prosecution made various beneficial
arrangements with inmates who testified for the prosecution.
Several inmates who testified for the defense had known Carter
before they were incarcerated.
When found, Allen was unconscious and had difficulty
breathing. His ribs were pulsating, and blood was running out
of his mouth. At University Hospital, Doctor Christopher
Miller, a resident neurosurgeon, found bruises and lacerations
about Allen's head, face and neck. Blood exuded from behind
Allen's eardrums, signifying probable basilary skull
fractures. Allen had a low level of brain system reflex
functioning and was neither conscious nor able to communicate.
Doctors connected life support systems.
Allen had suffered soft tissue swelling between his larynx
and spine, but the cervical region was not fractured. A
December 28 CAT scan revealed prominent soft tissue swelling
over Allen's left front temporal region, a subdural hematoma
between the brain's surface and the skull, and diffuse bleeding
within the brain. Trauma was the cause of the injuries.
However, deprivation of oxygen to Allen's brain could have been
an additional factor.
According to Doctor Harry J. Bonnell, Chief Deputy
Coroner, Allen's heart and breathing stopped on January 10th,
but doctors revived him. A January 11th examination revealed
that Allen was brain dead. Doctors then disconnected life
support systems.
Dr. Bonnell performed an autopsy on January 12th. Allen
was 5'10," and weighed 122 lbs. He died as a result of
multiple bruises and swelling of the brain, caused either by
blunt objects striking his head or by his head striking blunt
objects. His brain had been deprived of oxygen prior to
arrival at the emergency room. His injuries were consistent
with his head having been banged against the floor or against
steel bars. In Dr. Bonnell's opinion, these injuries were
fatal, and Allen would have died within twenty-four hours of
the trauma without medical intervention.

The jury convicted Carter of aggravated murder committed
with prior calculation and design. Carter stipulated to the
first death-penalty specification which alleged that the
charged offense occurred while Carter was a prisoner in a
detention facility. R.C. 2929.04(A)(4). The second death
specification alleged a prior conviction for murder. R.C.
2929.04(A)(5) specifies, as a statutory aggravating
circumstance, that "[p]rior to the offense at bar, the offender
was convicted of an offense an essential element of which was
the purposeful killing of * * * another * * *." Carter elected
to have that second specification tried to the court. The
court admitted documentary evidence of the prior conviction and
found Carter guilty.
Following a sentencing hearing and the jury's death
penalty recommendation, the trial court sentenced Carter to
death. The court of appeals affirmed the conviction and the
death penalty.

Arthur M. Ney, Jr., Prosecuting Attorney, and L. Susan
Laker, for appellee.
Sand & Stidham, Chuck R. Stidham and Timothy A. Smith, for
appellant.

Herbert R. Brown, J. R.C. 2929.05(A) requires a
three-part analysis in capital cases. First, we must review
the judgment and consider Carter's claims of error. Second, we
must independently weigh the evidence of aggravating
circumstances and mitigating factors. Third, we must decide
whether the sentence of death is excessive or disproportionate
to the penalty imposed in similar cases. For the reasons set
forth below, we affirm the conviction and uphold the sentence
of death.
I
Date of Conviction
In proposition of law I, Carter argues he was not
convicted of his first murder until January 5, 1989 when he was
sentenced to life imprisonment for aggravated murder. Carter
argues that under Crim.R. 32(B), a judgment of conviction does
not exist until sentence is imposed. See, also, R.C. 2945.75.
We agree. In State v. Henderson (1979), 58 Ohio St.2d
171, 12 O.O.3d 177, 389 N.E.2d 494, paragraph one of the
syllabus, we held that a defendant, who had pled guilty but was
awaiting sentencing for a theft offense, "* * * has not been
previously convicted of a theft offense within the meaning of
R.C. 2913.02(B)." Henderson noted that the majority of courts
requires that a sentence be imposed before an offender can be
regarded as having a prior conviction. Id. at 178, 12 O.O.3d
at 181, 389 N.E.2d at 498. State v. Poindexter (1988), 36 Ohio
St.3d 1, 5, 520 N.E.2d 568, 572, following Henderson, held that
a defendant had not been twice convicted, "as there is only one
order of execution, there can be only one conviction." Accord
State v. Dapice (1989), 57 Ohio App.3d 99, 102, 566 N.E.2d
1261, 1265; State v. Darga (1985), 30 Ohio App.3d 54, 56, 30
OBR 109, 111, 506 N.E.2d 266, 268. See, also, Annotation
(1988), 65 A.L.R.4th 838, 887; Annotation (1949), 5 A.L.R.2d
1080, 1104. Nonetheless, a prior conviction in which sentence
was pending can be used for impeachment. State v. Cash (1988),

40 Ohio St.3d 116, 532 N.E.2d 111.
We find waiver inapplicable even though counsel failed to
raise this point at trial. Carter's not guilty plea preserved
his right to object to the alleged insufficiency of the
evidence proving this prior conviction. The prosecution must
prove each and every element of the offense beyond a reasonable
doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560.
II
When the Murder Offense Occurred
However, accepting Carter's first proposition of law does
not establish prejudicial error. A key remaining issue
involves interpreting, in R.C. 2929.04(A)(5), the words
"[p]rior to the offense at bar, the offender was convicted * *
*." The offense at bar refers to the aggravated murder of
Johnny Allen. But when did the "offense at bar" occur? In
propositions of law II and III, Carter argues that this
"offense at bar" occurred on December 28, when the assault
occurred. However, the court of appeals held:
"* * * [T]he 'offense at bar,' the aggravated murder of
Johnny Allen, did not exist until Allen died on January 12
[sic], 1989. * * * [Thus] the language of the specification
* * * refers to the period of time prior to January 12, 1989."
In our view, the language "the offense at bar" means the
aggravated murder of Johnny Allen. Before Allen died, Carter
could only have been charged with felonious assault or
attempted murder. But when Allen died, it became possible to
charge Carter with aggravated murder. The offense, in effect,
matured then. An earlier conviction for assault, when the
victim was still alive, would not have barred a subsequent
murder conviction. See State v. Tolbert (1991), 60 Ohio St.3d
89, 91, 573 N.E.2d 617, 620; State v. Thomas (1980), 61 Ohio
St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897, paragraph six of the
syllabus. As the Supreme Court stated in Diaz v. United States
(1912), 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500, 503:
"The death of the injured person was the principal element
of the homicide, but was no part of the assault and battery.
At the time of the trial for the latter the death had not
ensued, and not until it did ensue was the homicide
committed." (Emphasis added.)
The offense of aggravated murder matured on January 11,
when Allen died. At that time, Carter had already been
sentenced on January 5 for the previous aggravated murder.
Thus, "[p]rior to the offense at bar, the offender was
convicted of an offense an essential element of which was the
purposeful killing of * * * another * * *." R.C.2929.04(A)(5).
In proposition of law III, Carter argues plain error
because the trial court instructed the jury that Carter's prior
conviction was an aggravating circumstance. In proposition of
law VI, Carter argues this evidence was not harmless error.
However, the trial judge did not err because evidence of the
prior murder conviction was admissible as an aggravating
circumstance, and the court's instructions were proper.
III
Ineffective Assistance of Counsel
In proposition of law V,1 Carter argues that he was denied
his right to the effective assistance of counsel. Counsel did

not object to evidence of the prior conviction on the basis
that the aggravated murder (the offense at bar) occurred on
December 28, before Carter was convicted and sentenced for a
prior murder on January 5, 1989.
Reversal of a conviction or sentence based on ineffective
assistance of counsel requires meeting the two-prong standard
of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674. Strickland requires: (a) deficient
performance, "errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment"; and (b) prejudice, "counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Strickland, supra, at 687, 104
S.Ct. at 2064, 80 L.Ed.2d at 692.
Carter fails to show that his counsel's performance at
trial was deficient. Carter's counsel filed at least forty
pretrial motions. Many were imaginative. Counsel contested
almost every possible point. Moreover, counsel had no basis to
object because evidence of the conviction was admissible.
IV
Death of Victim
In proposition of law VII, Carter argues that the state
failed to establish when Allen became brain dead; hence, the
evidence did not support the specification alleging a prior
murder conviction.
We find the evidence sufficient to sustain the
specification. In a review for sufficiency, the evidence must
be considered in a light most favorable to the prosecution.
Jackson v. Virginia, supra; State v. Davis (1988), 38 Ohio
St.3d 361, 365, 528 N.E.2d 925, 930. "* * * [T]he weight to
be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts." State v. DeHass (1967),
10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one
of the syllabus.
The evidence established that Allen was alive when he
entered University Hospital on December 28. Although Allen had
a low brain system reflex function, his brain was working, his
pulse was good, the doctors considered him alive, and life
support systems were connected. Thus, he was alive then and
life support systems kept Allen alive until January 11.
At trial, Dr. Bonnell testified that Allen "died on the
eleventh of January," after he was pronounced brain dead.
Since Dr. Bonnell was a coroner, his testimony is entitled to
weight. See R.C. 313.19. Bonnell further testified, without
any defense objection:
"Based upon my review of the medical records, Johnny Allen
stopped breathing, and his heart stopped the day before he
died, they got him going again, and the following day they did
an examination that showed he was totally dead, in which case,
he is dead. Even if you keep breathing for him, his brain is
not working, and his life, his functions are not working."
R.C. 2108.30 specifies:
"An individual is dead if he has sustained either
irreversible cessation of circulatory and respiratory functions
or irreversible cessation of all functions of the brain,
including the brain stem, as determined in accordance with
accepted medical standards. If the respiratory and circulatory

functions of a person are being artificially sustained, under
accepted medical standards a determination that death has
occurred is made by a physician by observing and conducting a
test to determine that the irreversible cessation of all
functions of the brain has occurred. * * *" (Emphasis added.)
Dr. Bonnell's testimony was sufficient to establish that
Allen died on January 11.
V
Intervening Cause of Death
In proposition of law VIII, Carter argues that while he
"is responsible for the death of Johnny Allen, he is not
responsible for the date of his death." Carter argues that
without medical intervention, Allen would have died within
twenty-four hours of his injuries. Thus, medical intervention
prolonged Allen's life until after Carter had been sentenced on
his first murder conviction. From this, Carter argues that
medical intervention was an intervening and superseding cause
of Allen's death as related to the prior murder specification.
Admittedly, Allen might have died sooner without medical
intervention. However, Carter's proposition lacks merit. When
Carter assaulted Allen, the likelihood of medical intervention
on Allen's behalf was readily foreseeable. "It is a
fundamental principle that a person is presumed to intend the
natural, reasonable and probable consequences of his voluntary
acts." State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10
O.O.3d 78, 80, 381 N.E.2d 637, 640. Accord State v. Lott
(1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293, 302; State v.
Losey (1985), 23 Ohio App.3d 93, 23 OBR 158, 491 N.E.2d 379.
Moreover, medical treatment for homicide victims is not an
intervening cause. See State v. Johnson, supra, at 40, 10
O.O.3d at 81, 381 N.E.2d at 640; Annotation, Homicide:
Liability Where Death Immediately Results from Treatment or
Mistreatment of Injury Inflicted by Defendant (1965), 100
A.L.R.2d 769, 783.
VI
Sufficiency of Evidence
In proposition of law IX, Carter contends that the
evidence was insufficient to prove Carter caused Allen's
death. Carter correctly points out that, pursuant to Evid. R.
703, facts or data upon which an expert bases his opinion must
be perceived by him or admitted in evidence at the hearing.
See State v. Jones (1984), 9 Ohio St.3d 123, 9 OBR 347, 459
N.E.2d 526, syllabus. Carter argues that Dr. Bonnell's
testimony rested upon medical records not received into
evidence and therefore Bonnell's testimony was inadmissible.
Carter's arguments are not persuasive. First, Dr. Bonnell
based his opinion on the cause of Allen's death on his personal
experience and observation in conducting Allen's autopsy, not
simply Allen's medical records. As the coroner who performed
the autopsy, Dr. Bonnell's testimony sufficiently established
the cause of death. See R.C. 313.19.
Second, the evidence establishing that Carter proximately
caused Allen's death rests upon more than Dr. Bonnell's
testimony. The evidence established that Carter viciously
choked, beat, and kicked Carter in the head over a twenty to
twenty-five minute period causing unconsciousness and severe
bleeding. In cases of severe injuries, expert medical

testimony may not even be necessary. See Commonwealth v.
Gilman (1979), 485 Pa. 145, 401 A.2d 335; King v. State (1964),
251 Miss. 161, 168 So.2d 637; Diaz v. State (Okla.Crim.App.
1986), 728 P.2d 503; Annotation: Necessity and Effect, in
Homicide Prosecution, of Expert Medical Testimony as to Cause
of Death (1975), 65 A.L.R.3d 283, 292.
Third, three physicians, aside from Dr. Bonnell, testified
to Carter's condition and his treatment in the hospital.
Expert medical testimony established that Allen suffered from
internal brain injuries, subdural hematoma, and prominent soft
tissue injuries to the skull surface and neck. One of these
physicians, Doctor Chris Miller, testified that Allen was
unconscious and had a low level of brain system reflex
functioning when he was admitted following Carter's assault.
The evidence that Carter caused Allen's death is overwhelming.
VII
Constitutionality
In propositions of law X, XI, XII, and XIII, Carter makes
constitutional challenges to Ohio's death penalty statute which
we have previously rejected. Ohio's system of appellate
review, including proportionality review, is constitutionally
valid. State v. Henderson (1988), 39 Ohio St.3d 24, 33, 528
N.E.2d 1237, 1246; State v. Steffen (1987), 31 Ohio St.3d 111,
31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus;
State v. Jenkins (1984), 15 Ohio St.3d 164, 176-177, 199, 15
OBR 311, 322, 341, 473 N.E.2d 264, 279, 296. Ohio's death
penalty statute is neither arbitrary and capricious nor void
for vagueness. State v. Jenkins, supra, at 169-170, 171, 15
OBR at 315-316, 317, 473 N.E.2d at 273-274, 275; State v. Buell
(1986), 22 Ohio St.3d 124, 139, 22 OBR 203, 216, 489 N.E.2d
795, 808-809; State v. Stumpf (1987), 32 Ohio St.3d 95, 103,
104, 512 N.E.2d 598, 607. Additionally, Carter did not raise
the issue in proposition of law XII at trial and thus waived
it. State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489
N.E.2d 277. Carter's overall constitutional attack in
proposition of law XIII has been rejected on numerous
occasions. State v. Poindexter, supra; State v. Buell, supra,
at 135-136, 22 OBR at 213, 489 N.E.2d at 806; State v. Jenkins,
supra.
VIII
Sentence
At the sentence hearing, Carter presented no evidence
other than an unsworn statement. He did not ask for a
presentence report or mental examination. In his unsworn
statement, Carter said he was twenty-seven years old, had four
brothers and two sisters, lived with one sister, and had three
children of his own. He did not know his real father until he
was fifteen years old and was raised by his mother and a
troublesome stepfather. He left home at age fifteen and left
school in the tenth grade.
Carter acknowledged that he was angry in his youth, but
claims that he has since learned love and understanding through
prayer and religion. He has learned to love people and to
control his temper. Carter said he did not intend to kill
Allen, that he was very sorry he did, and that he had prayed
for Allen's recovery in the hospital. Carter repented his past
and recognizes that the Lord is with him now.

We find the evidence proved the two specified aggravating
circumstances beyond a reasonable doubt. The offense was
committed "while the offender was a prisoner in a detention
facility * * *." Also, "[p]rior to the offense at bar, the
offender was convicted of * * * the purposeful killing of * * *
another * * *." R.C. 2929.04(A)(4) and (5).
After independently assessing the evidence, we find
nothing mitigating in the nature and circumstances of the
offense.
In considering statutory factors, we find that Allen had
not "induced or facilitated" the offense within the meaning of
R.C. 2929.04(B)(1). Nor did Carter act under "duress,
coercion, or strong provocation," as set forth in R.C.
2929.04(B)(2). The scant evidence suggesting that Allen
initiated the confrontation appeared contrived and unbelievable.
Carter presented no evidence of mental problems; hence,
R.C. 2929.04(B)(3) did not apply. Carter's age of twenty-seven
negated R.C. 2929.04(B)(4). Carter's prior aggravated murder
conviction precludes a finding that he had no prior serious
criminal history under R.C. 2929.04(B)(5). No other actors
were involved; hence, R.C. 2929.04(B)(6) is inapplicable.
Aside from his expressed remorse, no "other factors" merited
mitigation. R.C. 2929.04(B)(7).
After considering the case, we conclude that the
aggravating circumstances outweigh the single mitigating factor
of Carter's remorse and promised reformation beyond a
reasonable doubt. The aggravating circumstances are
significant. A jury had found Carter guilty of another
aggravated murder just three weeks before he attacked Allen,
and he was in jail awaiting sentencing for that murder. We
find the death sentence appropriate, proportionate and not
excessive when compared with similar cases where a defendant
has a prior conviction for a purposeful killing. R.C.
2929.04(A)(5). State v. Evans (1992), 63 Ohio St.3d 231, 586
N.E.2d 1042; State v. Davis (1992), 63 Ohio St.3d 44, 584
N.E.2d 1192; State v. Spirko (1991), 59 Ohio St.3d 1, 570
N.E.2d 229; State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373; State v. Mapes (1985), 19 Ohio St.3d 108, 19 OBR
318, 484 N.E.2d 140. The sentence is also appropriate,
proportionate and not excessive when compared with similar
cases where a defendant was a prisoner in a detention
facility. R.C. 2929.04(A)(4); State v. Bradley, supra; State
v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585.
Accordingly, we affirm the conviction and the sentence of
death.
Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and Resnick,
JJ., concur.
FOOTNOTES
1 No proposition of law IV was submitted in Carter's
brief.