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

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Carter, Appellant.
[Cite as State v. Carter (1995), Ohio St. 3d .]
Criminal law -- Aggravated murder -- Death penalty upheld, when
-- Trial court has discretion to determine its response to
jury's request for further instruction or clarification of
previously given instructions -- True question does not
constitute "hearsay" as defined by Evid.R. 801 --
Statement of co-conspirator admissible pursuant to Evid.R.
801(D)(2)(e), when -- Confession to police by one
co-conspirator implicating a second co-conspirator is not
made "during the course and in furtherance of the
conspiracy" within the scope of Evid.R. 801(D)(2)(e).
1. Where, during the course of its deliberations, a jury
requests further instruction, or clarification of
instructions previously given, a trial court has
discretion to determine its response to that request.
(Cincinnati v. Epperson [1969], 20 Ohio St. 2d 59, 49
O.O.2d 342, 253 N.E.2d 785, paragraph three of the
syllabus, overruled.)
2. Because a true question or inquiry is by its nature
incapable of being proved either true or false and cannot
be offered "to prove the truth of the matter asserted," it
does not constitute "hearsay" as defined by Evid.R. 801.
3. The statement of a co-conspirator is not admissible
pursuant to Evid.R. 801(D)(2)(e) until the proponent of
the statement has made a prima facie showing of the
existence of the conspiracy by independent proof.
4. A confession to police by one co-conspirator implicating a
second co-conspirator is not made "during the course and
in furtherance of the conspiracy" within the scope of
Evid.R. 801(D)(2)(e), as such a statement is made at a
point in time when the confessor is no longer attempting
to conceal the crime and has abandoned the conspiracy.
(No. 94-10 -- Submitted March 8, 1995 -- Decided July 26,
1995.)
Appeal from the Court of Appeals for Hamilton County, No.
C-920604.
In the early morning hours of April 6, 1992, Frances

Messinger was murdered while working alone as a clerk at a
United Dairy Farmers convenience store ("UDF") in Cincinnati.
A grand jury returned an indictment charging appellant, Cedric
Carter, in two counts, with aggravated murder in violation of
R.C. 2903.01(B) and aggravated robbery in violation of R.C.
2911.01 based on the events surrounding Messinger's death. The
indictment included a felony-murder death specification
pursuant to R.C. 2929.04(A)(7), charging Carter with causing
death while committing or attempting to commit aggravated
robbery, and being the principal offender in an aggravated
murder, or alternatively with committing a murder with prior
calculation and design. Both counts also contained gun
specifications. A jury found Carter guilty as charged and
recommended that he be sentenced to death. The death sentence
was subsequently imposed by the trial court.
At approximately 2:15 a.m. on April 6, 1992, Carol Blum, a
waitress working directly across the street from the UDF,
dialed 911 and reported that she had just seen two black males
running from the UDF. At trial, Blum testified that
immediately prior to calling 911, she saw two men inside the
UDF -- one man in front of the counter with both arms extended
toward the register with hands together pointing to something,
and the second man behind the counter near the register. She
saw the man behind the counter bend down, and then observed
both men run out. The waitress did not see Messinger standing
at any time while she was observing the incident. When
Messinger's body was discovered shortly thereafter, an unmelted
ice-cream cone was found on the floor of the UDF in the area in
front of the counter near the exit doors.
On April 7 one Kenny Hill surrendered himself to
authorities in connection with the Messinger murder. Based on
information provided by Hill, police obtained a search warrant
for an apartment at which Carter was temporarily residing.
Carter was arrested in the early morning hours of April 8, 1992
during the course of the search which followed. During the
search the police recovered the murder weapon, a .38 caliber
Smith & Wesson five-shot revolver manufactured between 1877 and
1891, the hammer of which must be pulled back manually prior to
the firing of each round.
Following his arrest, Carter was taken to police
headquarters to be interviewed. At approximately 3:50 a.m.
Carter signed a waiver of rights form, which recited his rights
as delineated in Miranda v. Arizona (1966), 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694. During the tape-recorded statement
which followed, Carter admitted being present at the UDF during
the course of the robbery, but initially identified Hill as the
shooter. The police then discontinued taping the interview, and
told Carter his statement was inconsistent with statements
police had obtained from other witnesses. Upon resumption of
the taping, Carter admitted that he was the shooter at the UDF
robbery.
At trial the state and the defense agreed to many of the
facts surrounding the robbery. Both parties are in accord that
three men were involved: Carter, Hill (who also entered the UDF
store), and Virgil Sims (who drove the car used by Carter and
Hill before and after the murder). It is undisputed that
Carter shot two times and that one bullet lodged in a carton of

cigarettes in a cabinet behind the cash register, while the
second struck Messinger in her forehead, killing her.
Carter testified at the trial and admitted involvement in
the crime. Carter testified that he entered the UDF first
(without a gun) and that Hill followed shortly thereafter,
carrying with him the .38 caliber Smith & Wesson revolver.
Carter ordered an ice cream cone, and while Messinger was
standing at the cash register to accept payment for the cone,
Hill passed the gun to Carter. Carter denied, however, that he
had intended to kill Messinger. He testified that he had been
a heavy user of crack cocaine; that he used significant amounts
of alcohol, marijuana and crack cocaine during the period
leading up to the murder; and that Hill was his supplier.
Although Carter admitted that he entered the store with the
intent to rob it, he testified that he and Hill had not talked
about robbing the store until immediately prior to the
robbery. He further testified that he never intended to be the
one to hold the gun during the robbery. He admitted, however,
that he knew the gun had bullets, and that Hill had showed him
earlier in the day how to shoot it. He further admitted that
before robbing the UDF the three had participated in "a lot" of
robberies of drug dealers that same evening, and that only Hill
had used the gun to threaten the victims in those robberies
while Carter remained in the car. Carter testified that he
first fired the gun at the floor to scare Messinger as she
pushed the gun away and shut the register drawer. Carter
testified he told Messinger to open the cash register, but she
refused. He stated that Hill then suggested leaving, and that
as they turned to leave, he fired a second shot when Messinger
began fumbling in an apparent attempt to push an alarm button.
Carter maintained consistently that he did not aim at
Messinger, but instead aimed to fire a shot by her to scare
her, and never intended to shoot her.
Medical testimony established that Messinger was killed as
a result of a bullet wound which entered her forehead slightly
left of the midline. The bullet traveled sharply left to
right, and front to rear, with a slight upward angle. No
stippling or gunpowder burns were found on Messinger's skin,
indicating that the gun had been fired from a distance greater
than one foot.
The court of appeals affirmed Carter's convictions and
death sentence, and the cause is now before this court upon an
appeal as of right.

Joseph T. Deters, Hamilton County Prosecuting Attorney,
and Christian J. Schaefer, Assistant Prosecuting Attorney, for
appellee.
David J. Boyd and Bruce K. Hust, for appellant.

Moyer, C.J. Appellant has raised twenty-eight
propositions of law. We have reviewed each and, for the
reasons stated below, find that none justifies reversal of
appellant's conviction of the crimes of aggravated murder and
aggravated robbery. In addition, we have fulfilled our
responsibilities to independently review the record, weigh the
aggravating circumstance(s) against the mitigating factors, and
examine the proportionality of a sentence of death in this

case. Upon full review of the record we affirm appellant's
convictions and death sentence.
I
Hearsay
In his first proposition of law, appellant argues that the
trial court committed prejudicial error in allowing several
witnesses to testify as to statements allegedly made by
appellant and his accomplice, Kenny Hill, over the defense's
objection on hearsay grounds.
1. James A. Landrum Jr. testified that he overheard Hill
ask Landrum's father prior to the UDF robbery where he (Hill)
could obtain a gun and ammunition.
2. Charles Horton, age fifteen, testified that prior to
the UDF robbery, he heard Carter and Hill generally discussing
plans to "ro[b] a place."
3. Police Specialist David Feldhaus testified that, the
day after the UDF robbery, Hill told Feldhaus that he (Hill)
had the gun with him when he, Sims and Carter had discussed
going out and trying to find a person to rob.
The state's argument in response is twofold. The state
argues (1) that this testimony did not constitute hearsay, and
(2) that the statements were admissible pursuant to Evid.R.
801(D)(2)(e), which provides that statements "by a
co-conspirator of a party during the course and in furtherance
of the conspiracy upon independent proof of the conspiracy" do
not fall within the definition of "hearsay."
We consider separately the admissibility of each of the
statements at issue.
A
Landrum's Testimony
Evid.R. 801(C) defines "hearsay" as "a statement, other
than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter
asserted." (Emphasis added.) A witness is barred on hearsay
grounds from testifying as to the statements made by another
only when the statement is offered to prove the truth of the
matter asserted in the statement, and only where the statement
falls outside any exceptions to the rule against hearsay1 as
set forth in, e.g., Evid.R. 803 and 804. See State v. Davis,
(1991), 62 Ohio St.3d 326, 344, 581 N.E.2d 1362, 1378
(admissibility of a written investigative report of the Drug
Enforcement Administration not inadmissible hearsay because not
offered to prove the truth of the matters contained therein,
but as relevant to the knowledge and state of mind of the
person in possession of the report).
Landrum testified that he overheard Hill question
Landrum's father as to where a gun and ammunition could be
obtained. Hill's questions do not fall within the definition
of "hearsay" because they did not constitute "assertions." An
"assertion" for hearsay purposes "simply means to say that
something is so, e.g., that an event happened or that a
condition existed." (Emphasis sic.) 2 McCormick on Evidence
(4 Ed. 1992) 98, Section 246. We hold that because a true
question or inquiry is by its nature incapable of being proved
either true or false and cannot be offered "to prove the truth
of the matter asserted," it does not constitute hearsay as
defined by Evid.R. 801. Accord United States v. Vest (C.A. 1,

1988), 842 F.2d 1319; United States v. Lewis (C.A. 5, 1990),
902 F.2d 1176; Washington v. State (1991), 589 A.2d 493, 87 Md.
App. 132; Bustamante v. State (Ind. 1989), 537 N.E.2d 1188.
Hill's questions fall into this nonassertive category, and
Landrum could properly testify as to the fact that Hill asked
them. The trial court properly allowed this testimony by James
Landrum, Jr.

B
Horton's Testimony

The state elicited testimony from Charles Horton that he
overheard Carter and Hill discussing a plan to commit a robbery
prior to April 6. The state contended at trial that this
testimony was admissible pursuant to Evid.R. 801(D)(2)(e),
which, in defining "hearsay," excludes statements "offered
against a party *** by a co-conspirator of a party during the
course and in furtherance of the conspiracy upon independent
proof of the conspiracy." (Emphasis added.) Thus, pursuant to
the express terms of the rule, the statement of a
co-conspirator is not admissible pursuant to Evid.R.
801(D)(2)(e) until the proponent of the statement has made a
prima facie showing of the existence of the conspiracy by
independent proof. Inclusion of the phrase "upon independent
proof of the conspiracy" in Evid.R. 801(D)(2)(e) distinguishes
Ohio practice from practice under the Federal Rules of
Evidence, and precludes a finding that the statement itself may
be used to establish the existence of the conspiracy. See
Giannelli, Ohio Rules of Evidence Handbook (5 Ed. 1994) 211,
214. The record in the case at bar reflects that at the time
Horton testified, the state had barely established that any
relationship whatsoever existed between Carter and Hill, let
alone that they were co-conspirators in a scheme to commit
robberies. Thus, at the time Horton's testimony was elicited,
the requisite foundational prima facie showing of the existence
of a conspiracy between Carter and Hill by independent proof
had not been made by the state as required by Evid.R.
801(D)(2)(e), even though "independent proof of the conspiracy"
was subsequently provided by the state through introduction
into evidence of the defendant's tape-recorded statement to
police. Cf. State v. Milo (1982), 6 Ohio App.3d 19, 22?23, 6
OBR 44, 47, 451 N.E.2d 1253, 1257; State v. Jurek (1989), 52
Ohio App.3d 30, 35-36, 556 N.E.2d 1191, 1197. Any error in
allowing Horton's testimony pursuant to the co-conspirator rule
is, however, harmless on this record. At trial the state
introduced evidence of Carter's taped confession and appellant
fully admitted his involvement in the commission of the UDF
robbery and other robberies on the night of the murder. Cf:
Milo, supra. Error in admitting hearsay does not justify
reversal where it is harmless. See State v. Sage (1987), 31
Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343.

C
Police Specialist Feldhaus' Testimony

Statements made by a co-conspirator after the conspiracy
has been abandoned do not fall within the scope of Evid.R.

801(D)(2(e), and may not be deemed admissible pursuant to that
rule. State v. Duerr (1982), 8 Ohio App.3d 396, 8 OBR 511, 457
N.E.2d 834, certiorari denied (1983), 464 U.S. 816, 104 S.Ct.
74, 78 L.Ed.2d 86. A confession to police by one
co-conspirator implicating a second co-conspirator is not made
"during the course and in furtherance of the conspiracy" within
the scope of Evid.R. 801(D)(2)(e), as such a statement is made
at a point in time when the confessor is no longer attempting
to conceal the crime and has abandoned the conspiracy. In the
instant case Hill turned himself in and confessed his
involvement in the crime the day after Messinger was murdered.
Since at that point Hill clearly had given up any attempt to
"furthe[r] *** the conspiracy" between himself, the appellant
and Sims, his statements to Feldhaus did not fall within the
scope of Evid.R. 801(D)(2)(e) and that rule did not justify the
admission of Hill's hearsay statements. Again, however, any
error committed thereby is harmless, as Hill's account of the
facts of the robbery as testified to by Feldhaus is in accord
with those subsequently made by the appellant himself during
his confession and at trial. Sage, supra.

II

Miranda Issues
Carter claims that the trial court erred in allowing his
confession into evidence in that the state provided
insufficient evidence at a pretrial suppression hearing that
Carter knowingly, intelligently and voluntarily waived his
Fifth Amendment rights.
At the suppression hearing held in this case the defendant
testified that he was half-asleep and under the influence of
crack cocaine and alcohol when he signed the Miranda waiver and
gave his confession after being taken into custody in the
middle of the night. Carter also testified that the police
induced him to make a statement by threatening that if he
didn't tell them the truth that they (the police) would kill
him. Appellant argues that this testimony should be accepted
and interpreted as a promise to Carter that if he cooperated,
he would not be faced with the death penalty. Appellant claims
that his age (nineteen) and lack of formal, consistent
education beyond the eighth grade reinforce his claim that his
waiver was not knowing.
The state relies on the testimony of the interviewing
officers that full warnings were given, and on the defendant's
confirmation on the audio tape that he understood his rights
and had signed the waiver form while the tape recorder was
turned off. The officers testified that Carter was read his
rights no less than three times, including immediately upon his
being taken into custody; that he appeared coherent and not
intoxicated; and that an officer read each line of the waiver
form aloud, and asked Carter after reading each line to confirm
that he understood. The officers denied making any threats.
At a suppression hearing, the evaluation of evidence and
credibility of witnesses are issues for the trier of fact.
State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972,
982. Carter's Miranda arguments are unconvincing. It is clear
that the court believed the officers' version of how Carter's

statement was obtained, and rejected the defendant's version.
Our evaluation of the audiotape of Carter's statement
reinforces the conclusion that Carter was neither intoxicated
nor otherwise incompetent. A reversal of the trial court's
finding of a knowing, intelligent and voluntary waiver is not
justified on this record.
We similarly reject Carter's contention that "it should be
required that an individual be permitted to talk to an attorney
even though he supposedly states that he does not want one."
To so hold would be "to imprison a man in his privileges and
call it the Constitution." Adams v. United States ex rel.
McCann (1942), 317 U.S. 269, 280, 87 L.Ed. 268, 275, 63 S. Ct.
236, 242. In a recent case, the United States Supreme Court
noted that "[n]othing in Edwards [v. Arizona (1981), 451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378] requires the provision of
counsel to a suspect who consents to answer questions without
the assistance of a lawyer." Davis v. United States (1994),
512 U.S. , 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362, 372,
citing Miranda's rejection of the proposition that "'each
police station must have a "station house lawyer" present at
all times to advise prisoners.'" See, also, Michigan v. Mosley
(1975), 423 U.S. 96, 108-109, 96 S.Ct. 321, 328-329, 46 L.Ed.2d
313, 324-325 (White, J., concurring).

III

Jury Question

The trial court provided the jury with a written copy of
its instructions, which included a definition of "purpose"
based on R.C. 2901.22(A).2 The jury sent the following note to
the court while deliberating in the guilt phase:
"We would like a further explanation of a particular
sentence in the fifth paragraph under Count I [of the jury
instructions]. The sentence: A person acts purposely when the
gist of the offense is a prohibition against the [sic] conduct
of a certain nature, regardless of what the offender attempts
to accomplish thereby, if it is his specific intention to
engage in conduct of that nature."
The judge responded by refusing to instruct further, and
by telling the jury that it had all the instructions it
needed. Carter contends that the trial court had an
affirmative duty to issue a supplemental instruction upon
receipt of this note pursuant to Cincinnati v. Epperson (1969),
20 Ohio St. 2d 59, 49 O.O. 2d 342, 253 N.E.2d 785. Paragraph
three of the syllabus in Epperson provides that "[t]he failure
by the trial court in a criminal case to answer a question of
law relating to a defense presented, which is submitted to the
court by the jury after they had retired to deliberate, is
error prejudicial to defendant's substantial rights."
Both the First and Sixth Ohio Appellate Districts have
held that Epperson no longer constitutes binding precedent in
that former R.C. 2315.06 (upon which Epperson was based) was
later repealed by the General Assembly effective in 1971. 133
Ohio Laws, Book III, 3019-3020. State v. Gleason (1989), 65
Ohio App.3d 206, 583 N.E.2d 975; State v. Robinson (June 13,

1986), Lucas App. No. L-85-278, unreported, 1986, WL, 6699.
These courts substituted an abuse-of-discretion standard to be
used when a jury asks a question of law of the court during
deliberations. We agree. We today expressly overrule the
third paragraph of the syllabus of Cincinnati v. Epperson,
supra, and hold that where, during the course of its
deliberations, a jury requests further instruction, or
clarification of instructions previously given, a trial court
has discretion to determine its response to that request. A
reversal of a conviction based upon a trial court's response to
such a request requires a showing that the trial court abused
its discretion. In the case at bar, defense counsel raised no
objection to the trial court's response to the jury question,
and the court acted within the scope of its discretion in view
of the nature of the instructions previously given.

IV

Sufficiency of Evidence

The crime of aggravated felony murder requires proof that
the accused "purposely cause[d] the death of another." R.C.
2903.01(B). In addition, the defendant must be "specifically
found to have intended to cause the death of another." R.C.
2903.01(D).
Carter essentially argues that the state's evidence was
insufficient to satisfy these two statutory elements of the
crime of aggravated murder and that the trial court erred in
denying his Crim.R. 29 motion for acquittal. We disagree. In
analyzing issues of sufficiency of evidence, a reviewing court
must view the evidence "in the light most favorable to the
prosecution," and ask whether "any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia (1979), 443 U.S. 307,
319, 99 S.Ct 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus.
In this case, the defendant testified that he shot "to
scare" Messinger, that he was unfamiliar with guns, and that he
never intended to shoot Messinger. The jury was under no
obligation to accept this testimony as truthful. See, e.g.,
State v. Jackson (1991), 57 Ohio St.3d 29, 34, 565 N.E.2d 549,
555. The jury could quite easily and reasonably have found
purpose to kill beyond a reasonable doubt despite this
testimony. A person is presumed to intend the natural,
reasonable and probable consequences of his voluntary acts,
State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564 N.E.2d 408,
419; State v. Thomas (1988), 40 Ohio St. 3d 213, 217, 533
N.E.2d 286, 290, and intent can be determined from the
surrounding facts and circumstances, see State v. Johnson
(1978), 56 Ohio St. 2d 35, 38, 10 O.O. 3d 78, 80, 381 N.E.2d
637, 640; State v. Robinson (1954), 161 Ohio St. 213, 53 O.O.
96, 118 N.E.2d 517, paragraph five of the syllabus. Based on
the eyewitness testimony of Carol Blum, the jury could have
concluded that Messinger was shot before the robbers turned to
flee, at a point in time when the gun held by Carter was in
close proximity to the victim. The jury had before it

additional evidence that Messinger was killed by a bullet which
entered the middle of her forehead. It was undisputed that the
gun used in the robbery required the shooter to separately cock
the hammer each time before refiring, justifying the conclusion
that Carter intentionally prepared his gun to fire a second
shot after first firing into the cigarette cabinet behind the
cash register. Sufficient evidence existed to support the
finding that Carter possessed purpose to cause Messinger's
death as contemplated by R.C. 2903.01(B) and (D). The offense
of aggravated robbery, when committed with a loaded gun, is
"likely to produce death." State v. Widner (1982), 69 Ohio
St. 2d 267, 270, 23 O.O. 3d 265, 266, 431 N.E.2d 1025, 1028;
State v. Clark (1978), 55 Ohio St. 2d 257, 9 O.O. 3d 257, 379
N.E.2d 597.
Carter's contentions that his convictions were not based
on sufficient evidence and that a motion to acquit should have
been granted at the close of the state's case have no merit.

V

Voir Dire

Carter has raised several issues challenging the trial
court's procedures in conducting voir dire.

A
Jury Sequestration

Carter asserts that the trial court erred in denying his
motion to examine prospective jurors separately and out of the
hearing of other prospective jurors. Carter's argument is
foreclosed by our holding in State v. Mapes (1985), 19 Ohio
St.3d 108, 19 OBR 318, 484 N.E.2d 140, that "[t]he
determination of whether a voir dire in a capital case should
be conducted in sequestration is a matter of discretion within
the province of the trial judge." Id. at paragraph three of
the syllabus. See, also, State v. Brown (1988), 38 Ohio St. 3d
305, 528 N.E.2d 523, paragraph two of the syllabus. Carter has
neither recited facts showing abuse of discretion nor
demonstrated prejudice resulting from the court's refusal to
conduct a sequestered voir dire.
Carter argues that the trial court abused its discretion
in that the "sheer repetition" of the same questions being
asked of others on the panel, in combination with the effect of
being influenced by the opinions expressed by prior veniremen,
is enough to prejudice the group. This argument assumes that
group voir dire is inherently prejudicial, and as such
challenges the validity of the court's prior holdings in Mapes
and Brown. We decline to modify those holdings.

B
Defense-proffered Jury Questionnaire

Carter asserts error in the trial court's refusal to
submit his proposed questionnaire to the venire prior to voir
dire. The argument lacks merit. See State v. Mills, supra, 62
Ohio St.3d at 365, 582 N.E.2d at 981; State v. Loza (1994), 71

Ohio St. 3d 61, 73, 641 N.E.2d 1082, 1098-1099. In this case
defense counsel did not dispute that the court's standard
questionnaire, which was given to the jurors, was similar to
the one defense counsel proffered. Further, the trial court
specifically informed counsel that he was free to ask
additional questions during the voir dire itself. The
defendant was accorded his right to meaningfully examine
prospective jurors.

C

Refusal to Allow Twelve Peremptory Challenges

Crim. R. 24(C) provides each party with six peremptory
challenges. Carter argues that allowance of more than six
peremptory challenges is constitutionally required in order to
assure a qualified and unbiased jury. Although we acknowledge
the importance of the availability of peremptory challenges to
both prosecutors and defendants, neither the United States
Constitution nor the Ohio Constitution accords a party a right
to any particular number of peremptory challenges. United
States v. Turner (C.A. 9, 1977), 558 F.2d 535, 538. See, also,
Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d
759. In addition, this court has previously rejected similar
arguments that a capital defendant is entitled to more than six
peremptory challenges. See State v. Mills, supra, 62 Ohio St.3d
at 365, 582 N.E.2d at 981; State v. Greer (1988), 39 Ohio St.3d
236, 244?246, 530 N.E.2d 382, 394?396. We today adhere to that
precedent.

VI

Venue

Carter argues that the trial court erred in refusing to
change the venue of his trial, in that pretrial publicity in
Hamilton County precluded a fair trial in that county. In
reviewing this contention we are guided by established
principles that "'[a]ny decision on changing venue rests
largely in the discretion of the trial court. Absent a clear
showing of an abuse of discretion, the trial court's decision
controls.' [Citations omitted.] Moreover, the interests of
judicial economy, convenience, and reduction of public expenses
necessitate that judges make a good faith effort to seat a jury
before granting a change in venue. [Citations omitted.] 'It
has long been the rule in Ohio that "the examination of jurors
on their voir dire affords the best test as to whether
prejudice exists in the community ***"' [Citations
omitted.]." State v. Fox (1994), 69 Ohio St.3d 183, 189, 631
N.E.2d 124, 129-130.
Carter does not allege specific facts tending to show that
the trial court abused its discretion in failing to order a
change of venue, but argues that the trial court should have
ordered a change of venue because there was a reasonable
likelihood of prejudicial, pretrial publicity. We disagree.
"[W]here the record on voir dire establishes that prospective
veniremen have been exposed to pretrial publicity but affirmed

they would judge the defendant solely on the law and evidence
presented at trial, it is not error to empanel such
veniremen." State v. Maurer (1984), 15 Ohio St.3d 239, 252, 15
OBR 379, 390, 473 N.E.2d 768, 781. See, also State v. Spirko
(1991), 59 Ohio St.3d 1, 23, 570 N.E.2d 229, 253?254. The
record reflects that jurors seated in this case made such
affirmations. Carter has failed to demonstrate that the trial
court abused its discretion in refusing to change the venue of
his trial.

VII

Alleged Evidentiary Error

The trial court allowed Police Specialist Feldhaus to
testify on cross-examination that Carter's co-conspirators Sims
and Hill were charged with complicity to aggravated murder, a
noncapital offense. When defense counsel attempted to elicit
testimony from Feldhaus as to why Sims and Hill were charged
with lesser crimes than Carter, the state objected, claiming
that the question called for a legal conclusion. Feldhaus
could not have had personal or firsthand knowledge to answer,
even if the information sought were deemed relevant (which we
do not here decide) as "[a] witness may not testify to a matter
unless evidence is introduced sufficient to support a finding
that he has personal knowledge of the matter." Evid.R. 602.
The grand jury itself rather than the police was responsible
for the indictments of Carter, Hill and Sims, and deliberations
of a grand jury are conducted secretly. Crim.R. 6(D) and (E).
The trial court did not err in refusing to allow this line of
questioning.

VIII

Prosecutorial Misconduct

The conduct of a prosecuting attorney during trial does
not constitute a ground of error unless the conduct deprives
the defendant of a fair trial. State v. Apanovitch (1987), 33
Ohio St.3d 19, 24, 514 N.E.2d 394, 400; State v. Keenan (1993),
66 Ohio St. 3d 402, 613 N.E.2d 203. A prosecutor is not
precluded from referring to the nature and circumstances
surrounding a capital offense to explain why the specified
aggravating circumstance or circumstances outweigh any
mitigating factors. State v. Combs (1991), 62 Ohio St.3d 278,
283, 581 N.E.2d 1071, 1077; State v. Stumpf (1987), 32 Ohio
St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus; State
v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d 293, 305.
In this case Carter correctly points out that the prosecutor in
the heat of argument misstated certain aspects of the law
(e.g., "You already know what aggravating circumstances are.
*** They are everything that surrounds the facts of this
particular case." [Emphasis added].) No objection was made to
these comments. While defense counsel did object when the
prosecutor stated, "There is no dispute as to [Carter's]
convictions. But criminal history deals with a lot of
suspicious conduct" (emphasis added), we note that the trial

court adequately instructed the jury as to both the definitions
of "aggravating circumstances" and mitigating factors as well
as the process by which the jury was to weigh the aggravating
circumstance against the mitigating factors. We have reviewed
the record and find that, when read as a whole, it supports the
conclusion that defendant was fairly tried. The conduct of the
prosecutor in this case, although worthy of criticism, does not
rise to the level of reversible error.

IX

Ineffective Assistance of Counsel

The standard by which we review claims of ineffective
assistance of counsel is well established. Pursuant to
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674, 693, in order to prevail on such a
claim, the appellant must demonstrate both (1) deficient
performance, and (2) resulting prejudice, i.e., errors on the
part of counsel of a nature so serious that there exists a
reasonable probability that, in the absence of those errors,
the result of the trial would have been different. Accord
State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373;
State v. Combs, supra. Judicial scrutiny of counsel's
performance is to be highly deferential, and reviewing courts
must refrain from second-guessing the strategic decisions of
trial counsel. To justify a finding of ineffective assistance
of counsel, the appellant must overcome a strong presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland at 689, 104 S.Ct.
at 2065, 80 L.Ed. 2d at 694-695; State v. Wickline (1990), 50
Ohio St.3d 114, 126, 552 N.E.2d 913, 925. Prejudice from
defective representation sufficient to justify reversal of a
conviction exists only where the result of a trial was
unreliable or the proceeding fundamentally unfair because of
the performance of trial counsel. Lockhart v. Fretwell (1993),
506 U.S. , 113 S. Ct. 838, 842-843, 122 L.Ed.2d 180, 189-191.
Carter claims that ineffective assistance of his trial
counsel is demonstrated by (1) counsel's failure to file a
Crim.R. 13 motion to consolidate his trial with that of Hill
and Sims, and to subpoena Hill to testify; (2) counsel's
failure to obtain a firearms expert to provide testimony
reinforcing Carter's contention that he lacked intent to kill;
(3) counsel's presentation of a clinical psychologist during
the mitigation hearing whose testimony was mixed in nature and
included recitation of facts prejudicial to Carter; and (4)
counsel's failure to call Carter's mother to testify during the
mitigation hearing. None of these alleged deficiencies rises
to the level of prejudicial deficient performance, nor
otherwise meets the ineffective assistance of counsel criteria
set forth above.

X

Alleged Instructional Error

Carter contends that the trial court erroneously

instructed the jury on statutory mitigating factors of R.C.
2929.04(B) not raised by the evidence, and thereby transformed
their absence into nonstatutory aggravating circumstances. His
argument is not supported by the record. The trial court
properly instructed the jury as to the mitigating factors
argued by the defense, i.e., Carter acted under duress,
coercion or strong provocation (R.C. 2929.04[B][2]); Carter
lacked the substantial capacity to appreciate the criminality
of his conduct (R.C. 2929.04[B][3]); Carter's youth (age
nineteen at time of murder) (R.C. 2929.04[B][4]); Carter's lack
of a significant history of prior criminal convictions or
delinquency adjudications (R.C. 2929.04[B][5]); and other
mitigating evidence, e.g., Carter's personality, childhood
history, and cocaine dependence (R.C. 2929.04[B][7]). The
trial court included no instructions as to the two remaining
statutory factors not raised by Carter, i.e., R.C.
2929.04(B)(1) (victim induced or facilitated offense); or
(B)(6) (defendant is an aider or abettor but not a principal
offender). The trial court did not otherwise infer that the
absence of statutory mitigating factors should be transformed
into extra statutory aggravating circumstances.
Nor is error demonstrated by the fact that the trial court
instructed the jury that it was called upon to "recommend" a
non-binding sentence of death if it found the aggravating
circumstance to outweigh the mitigating factors. The argument
that such an instruction impermissibly reduces the jury's sense
of responsibility in recommending death has been consistently
rejected by this court. See State v. Bradley, supra, 42 Ohio
Sts.3d at 147, 538 N.E. 2d at 384, citing State v. Buell
(1986), 22 Ohio St. 3d 124, 22 OBR 203, 489 N.E.2d 795; State
v. Rogers (1986), 28 Ohio St. 3d 427, 28 OBR 480, 504 N.E.2d
52; State v. Steffen (1987), 31 Ohio St.3d 111, 509 N.E.2d
383. See, also, State v. Jackson, supra, 57 Ohio St.3d at 40,
565 N.E.2d at 561; State v. Grant (1993), 67 Ohio St. 3d 465,
472, 620 N.E.2d 50, 61. Similarly, no error was committed in
providing the jury with a verdict form which included the words
"we *** recommend" a sentence of death. We do, however,
restate our preference that courts trying capital cases include
in jury instructions a statement similar to that commended in
State v. Mills, supra, 62 Ohio St.3d at 375, 582 N.E.2d at 988,
that, "'[s]imply put, you should recommend the appropriate
sentence as though your recommendation will, in fact, be
carried out.'"
As a final example of instructional error, Carter claims
that the trial court should have instructed the jury as to the
minimum length of time defendant would be incarcerated before
becoming eligible for parole were he given a life sentence.
Trial counsel did not proffer such an instruction, and error,
if any, in its omission has been waived. State v. Jackson,
supra, 57 Ohio St.3d at 41, 565 N.E. 2d at 562 (failure to
object to a jury instruction is waived "'unless, but for the
error, the outcome of the trial clearly would have been
otherwise'"). See, also, Crim. R. 52(B). We do not believe
that the jury clearly would have returned a different verdict
had this instruction been given, particularly in light of the
fact that the jury was otherwise instructed that a life
sentence would involve parole eligibility after twenty or

thirty full years of imprisonment.

XI

Miscellaneous Penalty Phase Issues

A
Separate Juries

Contrary to Carter's assertions, separate juries need not
be seated for the penalty and guilt phases of a capital trial.
Indeed, in Ohio the same jury which found the capital defendant
guilty of aggravated murder and the death specification must
also return the recommendation of life or death following the
mitigation hearing. See State v. Penix (1987), 32 Ohio St. 3d
369, 372, 513 N.E.2d 744, 747-748 ("There is no statutory
provision for a second jury to be impaneled and make a
recommendation on the death penalty at resentencing. *** [T]he
sentencing recommendation must be made by the same jury that
convicted the offender at the guilt phase of this bifurcated
proceeding.").

B
Failure to Provide Transcript of Psychologist Testimony

On the second day of its deliberations concerning the
penalty recommendation, the jury requested that it be provided
with a transcript of the testimony of the psychologist who
testified in Carter's behalf at the mitigation hearing. The
trial court refused to provide such a transcript. We are called
upon to review this refusal pursuant to an abuse-of-discretion
analysis. See State v. Berry (1971), 25 Ohio St.2d 255, 54
O.O.2d 374, 267 N.E.2d 775, paragraph four of the syllabus
("After jurors retire to deliberate, upon request from the
jury, a court in the exercise of sound discretion may cause to
be read all or part of the testimony of any witness ***.").
See, also, State v. Davis, supra, 62 Ohio St.3d at 340, 581
N.E.2d at 1375. Because defense counsel did not object to the
trial court's refusal to provide the transcript, reversal on
the basis of this proposition would require a finding of plain
error.
We do not find on this record that the trial court abused
its discretion in refusing to provide a copy of the transcript,
and certainly do not find plain error. Carter argues that the
court's refusal prejudiced him in that it was likely that the
jury remembered only the vivid and negative aspects of the
psychologist's testimony, e.g., that the defendant's history
included sadistic behavior, and that the jury asked for the
transcript so that it might have an opportunity to review the
more technical, and favorable, portions of the psychologist's
testimony. This contention is purely speculative, and
constitutes much too thin a reed to support reversal of
Carter's death sentence.

C

Alleged Unconstitutionality of Ohio's Death Penalty Statutes

We reject Carter's argument that Ohio's death penalty
statutory framework is unconstitutional. "*** [W]e have
consistently held that Ohio's death penalty scheme is
constitutional and we continue to adhere to that position."
State v. Woodard (1993) 68 Ohio St.3d 70, 79, 623 N.E.2d 75,
82. See, also, e.g., State v. Beuke (1988), 38 Ohio St.3d 29,
38-39, 526 N.E.2d 274, 285; State v. Bedford (1988), 39 Ohio
St.3d 122, 132, 529 N.E.2d 913, 923; State v. Sowell (1988), 39
Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; State v. Bradley,
supra, 42 Ohio St.3d at 148, 538 N.E.2d at 385.

XII

Independent Review

The evidence shows beyond a reasonable doubt that the
defendant was the principal offender in a felony-murder based
on attempted aggravated robbery. R.C. 2929.04(A)(7). Against
this sole specification, the appellant asks us to weigh
Carter's age (nineteen), the coercive influence of Hill (who
was not charged with a death-penalty crime), Carter's
relatively clean record (only two misdemeanor convictions), the
fact that Carter was of low intellect, and that he had been
raised in a less-than-ideal environment. The defense also
urges this court to include in its weighing any residual doubt
it may have that Carter possessed the required element of
specific intent to kill based on Carter's contention that he
never meant to shoot Messinger.

A
Youth of Offender

Where a defendant kills at the age of eighteen or nineteen
this court has on several occasions held that the element of
youth is entitled to little weight. See State v. Slagle
(1992), 65 Ohio St.3d 597, 613, 605 N.E.2d 916, 931; State v.
Hill (1992), 64 Ohio St. 3d 313, 335, 595 N.E.2d 884, 901;
State v. Byrd (1987), 32 Ohio St.3d 79, 93, 512 N.E.2d 611,
625; State v. Powell (1990), 49 Ohio St. 3d 255, 264, 552
N.E.2d 191, 201; State v. Cooey (1989), 46 Ohio St. 3d 20, 544
N.E.2d 895.

B
Poor Childhood

We find that mitigating value does exist based on negative
aspects of Carter's childhood, and accord it the little weight
to which it is entitled.

C

Influence of Cocaine Intoxication/Loss of Impulse Control

In State v. Benner (1988), 40 Ohio St.3d 301, 319, 533
N.E.2d 701, 719, a defense expert testified as to the
defendant's potential for drug-induced behavior, lack of anger

control and mood instability. This court acknowledged that the
testimony was worthy of consideration, but "not entitled to
much weight." See, also, State v. Lewis (1993), 67 Ohio St.3d
200, 209, 616 N.E.2d 921, 928. Similarly, we have considered
the evidence of cocaine and other drug intoxication presented
by Carter and have accorded it the little value it merits.

D
Residual Doubt
The trial court, which observed the witnesses and their
credibility, was firmly convinced that Carter possessed the
intent required of both the crime of aggravated murder and the
death specification. Although we have before us a cold record,
the jury's recommendation and trial court's sentence are
supported by ample evidence. We have fully considered the
degree of residual doubt inherent in this record, and have
accorded it the small weight we believe it is due.

E
"Coercion" from Kenny Hill

Where proven, the fact that a capital defendant was under
"strong *** domination" by another so as to cause him to act
other than he ordinarily would is mitigating in nature. See
State v. Woods (1976), 48 Ohio St. 2d 127, 137, 2 O.O.3d 289,
357 N.E.2d 1059, 1066. Low intelligence of the defendant and
susceptibility to the influences of others are relevant to a
determination of the existence of coercion. See State v.
Powell, supra, 49 Ohio St.3d at 263, 552 N.E.2d at 200; State
v. Hooks (1988), 39 Ohio St. 3d 67, 69-70, 529 N.E.2d 429,
432. However, we find that Carter has not demonstrated that
Hill exerted a level of "coercive" influence sufficient to
justify us in attributing great weight to this mitigating
evidence. Although Hill may well have been the primary
instigator behind the attempted robbery, we find nothing to
support Carter's implied assertion that "Hill made me do it."
Rather we find that the evidence instead leads to the
conclusion that Carter willingly participated in the events of
April 6.

F
Disparate Sentencing of More Culpable Co-Conspirator

In this case we do not find mitigating value in the fact
that the two other participants in the robbery, Hill and Sims,
were indicted on lesser charges than was Carter, and were not
put in jeopardy of a death sentence. These individuals did not
shoot and kill Messinger. The fact that Carter pulled the
trigger, thereby performing the act which resulted in
Messinger's death, is justification enough for his being
treated more harshly than his co-conspirators. Cf: State v.
Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.E.2d 180, 188
(disparity of sentence does not justify reversal when the
sentence is neither illegal nor an abuse of discretion).
Having accorded each mitigating factor the degree of
weight to which we feel it is entitled, we independently
determine that the aggravating circumstance outweighs the

combined weight of the mitigating factors beyond a reasonable
doubt.

XIII

Proportionality Review

Carter argues that he may not constitutionally be
sentenced to death, in that the death penalty is historically
imposed disproportionately in cases where, as here, a white
person was murdered. This argument is foreclosed by existing
precedent. See McCleskey v. Kemp (1987), 481 U.S. 279, 107 S.
Ct. 1756, 95 L.Ed.2d 262; State v. Steffen, supra, at 124, 31
obr 284-285, 509 N.E.2d at 395; State v. Zuern (1987), 32 Ohio
St. 3d 56, 64, 512 N.E.2d 585, 593; and State v. Byrd, supra,
32 Ohio St,3d at 86, 512 N.E.2d at 619.
In terms of the statutory analysis of appropriateness and
proportionality required by R.C. 2929.05(A), we find that this
court has consistently upheld the imposition of death stemming
solely from murder in the commission of aggravated robbery in
cases whose facts are no more heinous or egregious in nature
than are the facts of the case at bar. See, e.g., State v.
Jamison, supra; State v. Scott (1986), 26 Ohio St.3d 92, 26 OBR
79, 497 N.E.2d 55; State v. Stumpf, supra. See, also, State v.
Campbell (1994), 69 Ohio St.3d 38, 630 N.E.2d 339 (aggravated
burglary); State v. Lewis, supra. Imposition of a death
sentence upon Cedric Carter is consistent with the
proportionality analysis we are statutorily required to
undergo.
Accordingly, appellant's convictions and sentences are
affirmed.
Judgment affirmed.
Douglas, Wright, F.E. Sweeney, Pfeifer and Cook, JJ.,
concur.
Resnick, J., concurs in judgment only.

FOOTNOTES:
1 Evid R. 802 contains the general prohibition against
the admission of hearsay. It provides:
"Hearsay is not admissible except as otherwise provided by
the Constitution of the United States, by the Constitution of
the State of Ohio, by statute enacted by the General Assembly
not in conflict with a rule of the Supreme Court of Ohio, by
these rules, or by other rules prescribed by the Supreme Court
of Ohio."
2 R.C. 2901.22(A) provides: "A person acts purposely
when it is his specific intention to cause a certain result,
or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is his specific intention to
engage in conduct of that nature."