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

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THE STATE OF OHIO, APPELLEE, v. RAGLIN, APPELLANT.
[Cite as State v. Raglin (1998), ___ Ohio St.3d ___.]
Criminal law -- Aggravated murder -- Appeals in cases in which sentence of
death has been imposed for an offense committed on or after January 1,
1995 shall be made directly from the trial court to the Supreme Court of
Ohio -- Death penalty upheld, when.
(Nos. 96-2872 and 97-141 -- Submitted July 15, 1998 -- Decided September 30,
1998.)
APPEAL from the Common Pleas Court of Hamilton County, No. B-96000135.
APPEAL from the Court of Appeals for Hamilton County, No. C-970009.

During the early morning hours of December 29, 1995, appellant, Walter
Raglin, and appellant's friend, Darnell "Bubba" Lowery, were looking for
someone to rob. Appellant was wearing dark clothes and a black ski mask and
was armed with a .380 semiautomatic pistol he had obtained from Lowery. The
two men considered robbing a "dope boy," i.e., a drug dealer, but decided against
it for fear that such a person could be armed. They also discussed the possibility
of robbing a taxicab driver, but appellant suggested that it might be safer for the
two men to rob a more vulnerable victim.

Meanwhile, at approximately 1:30 a.m., Michael Bany,1 a musician,
concluded an engagement at a bar on Main Street in Cincinnati. At approximately
1:45 a.m., Bany left the bar carrying a bass guitar and a black bag or suitcase with
music equipment and headed toward the parking lot where he had parked his car.
Appellant and Lowery saw Bany and decided to rob him. While Bany was
attempting to unlock the door to his vehicle, appellant approached him from
behind, pulled out the .380 semiautomatic pistol, and demanded Bany's money.
Bany handed appellant three $20 bills. Appellant then asked Bany whether Bany's

car had an automatic or manual transmission since appellant planned to steal the
car if it was an automatic. Bany did not reply to appellant's question. Appellant
repeated the question, but Bany remained silent. At some point, Bany bent down
to pick up his guitar case and/or his music equipment and turned to face appellant.
While appellant and Bany were looking at each other, appellant shot Bany once in
the side of the neck, killing him. The projectile entered through the left side of
Bany's neck, just below the earlobe, and exited through the right side. The path of
the projectile indicated that appellant and Bany were not standing face-to-face at
the time of the shooting. Additionally, the record indicates that the shot was fired
at the victim from a distance of more than three feet.

Following the killing, appellant and Lowery ran to a house several blocks
away from the scene of the murder. There, appellant cleaned the pistol of
fingerprints and gave it to Lowery. Appellant told Lowery that he (appellant) had
received only $20 from the victim. Later, appellant spent the $60 he had taken
from Bany to purchase marijuana.

On January 3, 1996, Cincinnati police received an anonymous telephone
call identifying appellant as a suspect in the murder. Appellant was apprehended
by police and was taken to an interview room for questioning. There, appellant
voluntarily agreed to speak with police after being advised of his Miranda rights.
See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

During questioning, appellant lied to the police and denied any involvement
in the murder. When police informed appellant that they had received telephone
calls naming appellant as a suspect, appellant changed his story and admitted that
he had been at the scene of the murder. Appellant told police that he had been
paid $25 for being a lookout for Lowery, and that Lowery had robbed and killed
Bany. The police officers then left the interview room. A short time later,

2

appellant summoned an officer back to the room and admitted that he had shot
Bany. Appellant then confessed to robbing and killing Bany and gave police a
detailed account of the murder.

After giving a full confession to police, appellant agreed to repeat his
statement on tape. Appellant was once again advised of his Miranda rights. At
that time, appellant indicated that he wanted to speak to an attorney. Therefore,
police stopped the recorder, ceased their interrogation of appellant, and offered to
bring appellant a telephone book and to assist him in obtaining counsel. Appellant
stated that he did not want to inconvenience the officers, but police assured him
that his request for counsel was not an inconvenience. Nevertheless, despite these
assurances, appellant told police that he had changed his mind concerning his
request for counsel and that he wished to continue with his statement. At that
point, police resumed the interview and once again advised appellant of his rights.
After ensuring that appellant fully understood his right to counsel and had freely
and intelligently abandoned his known rights, police resumed the interrogation
and tape recording of appellant's statement, and appellant reiterated the details of
the robbery and killing.

In January 1996, appellant was indicted by the Hamilton County Grand Jury
for the aggravated murder of Bany. Count Four of the indictment charged
appellant with purposely causing the death of Bany during the commission of an
aggravated robbery. Count Four of the indictment also carried an R.C.
2929.04(A)(7) death penalty specification. Count Three of the indictment charged
appellant with the aggravated robbery of Bany. Counts One and Two of the
indictment charged appellant with certain offenses that were unrelated to the
robbery and killing of Bany. Counts Two, Three, and Four carried a firearm
specification. Appellant eventually entered a plea of no contest to the charge set

3

forth in Count One of the indictment and the specification in connection with that
count. Additionally, the state of Ohio eventually dismissed Count Two.

The charges and specifications relating to the aggravated robbery and
aggravated murder of Bany (i.e., Counts Three and Four and related
specifications) proceeded to trial by jury. The jury found appellant guilty of these
charges and specifications. With regard to the R.C. 2929.04(A)(7) death penalty
specification, the jury found that appellant was the principal offender in the
commission of the aggravated murder. Following a mitigation hearing, the jury
recommended that appellant be sentenced to death for the aggravated murder of
Bany. The trial court accepted the jury's recommendation and imposed the
sentence of death. For the aggravated robbery of Bany (Count Three), for the
matter to which appellant had pled no contest (Count One), and for the firearm
specification in connection with Count Three, the trial court sentenced appellant in
accordance with law.

In case No. 96-2872, appellant directly appeals his convictions and
sentences for aggravated murder and aggravated robbery (and for the associated
firearm specifications) from the trial court to this court pursuant to Section
2(B)(2)(c), Article IV of the Ohio Constitution, as amended in 1994. See, also,
R.C. 2953.02. Appellant also filed a notice of appeal in the court of appeals.
However, the court of appeals issued an entry striking the notice of appeal because
the appellate court lacked jurisdiction to consider appellant's appeal from the
imposition of the death penalty. See Sections 2(B)(2)(c) and 3(B)(2), Article IV of
the Ohio Constitution, and R.C. 2953.02. In case No. 97-141, appellant appeals
from the court of appeals' decision striking the notice of appeal. Upon motion, we
consolidated the two cases.
__________________

4

Joseph T. Deters, Hamilton County Prosecuting Attorney, Steven W. Rakow
and Ronald W. Springman, Assistant Prosecuting Attorneys, for appellee.

H. Fred Hoefle and David J. Boyd, for appellant.
__________________

DOUGLAS, J. Appellant presents twenty-one propositions of law for our
consideration. (See Appendix, infra.) We have considered each of appellant's
propositions of law and have reviewed the death penalty for appropriateness and
proportionality. Upon review, and for the reasons that follow, we uphold
appellant's convictions and sentences, including the sentence of death.
I

We have held, time and again, that this court is not required to address and
discuss, in opinion form, each and every proposition of law raised by the parties in
a death penalty appeal. We continue to adhere to that position today. We
recognize that the case at bar is among the first of the death penalty appeals that
have come to this court on direct appeal from the trial courts of this state.
However, in this case, as in all other death penalty cases, we have carefully
considered all of the propositions of law and allegations of error and have
thoroughly reviewed the record in its entirety. Most of the issues raised by
appellant have been addressed and rejected by this court under analogous
circumstances in a number of our prior cases. Therefore, these issues require little,
if any, discussion. Additionally, a number of appellant's arguments have been
waived. Upon a careful review of the record and the governing law, we fail to
detect any errors requiring reversal of appellant's convictions and sentences. We
have found nothing in the record or in the arguments advanced by appellant that
would, in any way, undermine our confidence in the integrity and reliability of the
trial court's findings. Accordingly, we see no reason to deviate from our prior

5

procedures in death penalty appeals. We address and discuss, in detail, only those
issues that merit analysis.
II
Proposition of Law No. 1

The trial court, in its sentencing opinion, considered and weighed an R.C.
2929.04(A)(3) aggravating circumstance even though appellant was neither
charged with nor convicted of an R.C. 2929.04(A)(3) death penalty specification.
However, this error in the trial court's sentencing opinion, and all other allegations
of error raised by appellant in Proposition of Law No. 1, can be readily cured by
our independent review of appellant's death sentence. See, generally, State v. Lott
(1990), 51 Ohio St.3d 160, 170-173, 555 N.E.2d 293, 304-307. See, also, State v.
Reynolds (1998), 80 Ohio St.3d 670, 684-685, 687 N.E.2d 1358, 1373; State v.
Gumm (1995), 73 Ohio St.3d 413, 424, 653 N.E.2d 253, 265; and State v. Fox
(1994), 69 Ohio St.3d 183, 191-192, 631 N.E.2d 124, 131.
III
Proposition of Law No. 2

Appellant contends that the trial court erred by refusing to instruct the jury
on involuntary manslaughter as a lesser included offense of aggravated murder.
We disagree. We have considered similar issues in a number of prior cases and
have discussed those issues to exhaustion. The applicable rule is that "[e]ven
though an offense may be statutorily defined as a lesser included offense of
another, a charge on such lesser included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the
crime charged and a conviction upon the lesser included offense." State v.
Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the

6

syllabus. We find no evidence in this case to reasonably suggest that appellant
lacked the purpose to kill his victim.

The facts of this case are clear. Appellant and his accomplice, Darnell
Lowery, wandered the streets of Cincinnati looking for a victim to rob. Appellant
was carrying a loaded .380 caliber semiautomatic pistol. The men considered two
potential classes of victims to rob, but decided to search for easier prey. While
appellant and Lowery were searching for a defenseless person to rob, appellant's
unfortunate victim, Michael Bany, arrived on the scene. Appellant approached
Bany and demanded money. Bany complied with appellant's demands. The
record clearly indicates that Bany presented no threat to appellant and that
appellant and Bany never argued. Bany never spoke a single word to appellant.
While appellant was asking questions concerning Bany's car, Bany bent down and
picked up what appellant referred to as a "suitcase," i.e., either the guitar case or
the case containing Bany's music equipment. Bany turned to look at appellant,
and appellant looked at Bany. Appellant then pointed the pistol at Bany and shot
him in the neck in a manner that was certain to (and did) cause Bany's death.

Appellant told police, "I, I fired the gun at [Bany]. I didn't know where I hit
[him] at. I wasn'[t] tryin' to kill [him]." Appellant also claimed to have
"panicked" at the time he shot and killed Bany. Appellant told police that he had
been "scared" by Bany's movements because appellant "didn'[t] know what * * *
was in the suitcase." However, appellant never claimed that the shot had been
accidentally or unintentionally fired, and the evidence clearly establishes that the
shooting was not accidental or unintentional. Appellant's claims of panic and
fright are not reasonably supported by the evidence. Appellant had a loaded
weapon, he was pointing that weapon at Bany, and he fired that weapon into the
neck of his defenseless victim. Appellant told police that he had fired the weapon

7

directly at Bany. He told police that Bany was not trying to "fiddle" with the
suitcase or anything of that nature and that Bany had simply "picked it up."
Appellant also admitted to police, "I didn'[t] have to shoot that man." The direct
and circumstantial evidence in this case, and all reasonable inferences to be drawn
therefrom, lead to one inescapable conclusion, to wit, appellant purposely killed
Bany during the commission of an aggravated robbery when he pointed the gun at
Bany and pulled the trigger.

Under any reasonable view of the evidence, the killing of Bany was
purposeful. Thus, we find that the evidence adduced at trial could not have
reasonably supported both an acquittal on aggravated murder and a conviction on
the charge of involuntary manslaughter. Accordingly, we hold that the trial court
properly rejected appellant's request for an involuntary manslaughter instruction.
IV
Proposition of Law No. 3

Appellant argues that the evidence at trial was legally insufficient to sustain
his conviction for aggravated murder. Specifically, appellant claims that the
evidence was insufficient to show that he purposely caused the death of the victim.
We disagree. The evidence in this case sufficiently, undoubtedly, and
overwhelmingly supported the finding that appellant purposely killed his victim.
V
Proposition of Law No. 4

Similarly, appellant also argues that his conviction for aggravated murder is
against the manifest weight of the evidence, since, according to appellant, he did
not purposely kill his victim. Again, we have reviewed the evidence in its
entirety. Appellant's conviction for aggravated murder is not against the manifest
weight of the evidence.

8

VI
Proposition of Law No. 5

Appellant raises claims of prosecutorial misconduct, but many of
appellant's arguments have been waived. Additionally, many of appellant's
claims of prosecutorial misconduct are simply not supported by a fair and
impartial review of the record, such as appellant's various attempts to persuade us
that the arguments by the prosecution essentially converted the nature and
circumstances of the offense into "a grossly prejudicial nonstatutory aggravating
factor." We have carefully reviewed the record in its entirety and have considered
all of appellant's claims of prosecutorial misconduct. We have found no instance
of prosecutorial misconduct that would rise to the level of reversible error. The
instances of alleged misconduct, taken singly or together, did not substantially
prejudice appellant or deny him a fair trial.
VII
Proposition of Law No. 6

The matter raised in appellant's Proposition of Law No. 6 is rejected on
authority of State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542,
552.
VIII
Proposition of Law No. 7

R.C. 2929.03 was amended as part of Am.Sub.S.B. No. 2 (146 Ohio Laws,
Part IV, 7136, 7454-7456) and Am.Sub.S.B. No. 269 (146 Ohio Laws, Part VI,
10752, 10926-10927) to allow a jury in a capital case to consider the sentencing
alternative of life imprisonment without parole. The effective date of the
amendment was July 1, 1996. Appellant committed the aggravated murder offense
prior to the effective date of the amendment, but he was not sentenced until after

9

July 1, 1996. Nevertheless, appellant contends that the trial court was required to
instruct the jury, in the penalty phase, to consider the new sentencing alternative of
life imprisonment without parole. However, the sentencing provisions of
Am.Sub.S.B. No. 2 apply only to those crimes committed on or after July 1, 1996.
See State v. Rush (1998), 83 Ohio St.3d 53, 697 N.E.2d 634. Therefore, contrary
to appellant's arguments, the trial court did not err by refusing to instruct the jury
to consider the sentencing alternative of life imprisonment without parole.
IX
Proposition of Law No. 8

The matter raised in appellant's Proposition of Law No. 8 has been
addressed and rejected under analogous circumstances in a number of our prior
cases. See, e.g., State v. Phillips (1995), 74 Ohio St.3d 72, 101, 656 N.E.2d 643,
669, and State v. Woodard (1993), 68 Ohio St.3d 70, 77, 623 N.E.2d 75, 80-81.
We have not altered our position on the issue.
X
Proposition of Law No. 9

In Proposition of Law No. 9, appellant questions the trial court's penalty
phase jury instructions. We have reviewed the jury instructions as a whole and
find appellant's objections not persuasive.
XI
Proposition of Law No. 10

The matter raised in appellant's Proposition of Law No. 10 is rejected on
authority of State v. Greer (1988), 39 Ohio St.3d 236, 244-246, 530 N.E.2d 382,
394-396; State v. Carter (1995), 72 Ohio St.3d 545, 555-556, 651 N.E.2d 965,
975; and State v. Garner (1995), 74 Ohio St.3d 49, 63-64, 656 N.E.2d 623, 637.
XII
10

Proposition of Law No. 11

During the penalty phase, after the defense had rested, the trial court, over
defense objections, permitted the state to present the testimony of two corrections
officers as rebuttal witnesses. Officer Timothy Higgs testified that appellant,
while in jail, had become belligerent on one occasion and had threatened to kill
Higgs. Officer Byron Brown testified that appellant, while incarcerated, had
attempted to escape from the fifth floor of the Hamilton County Justice Center by
jumping out of a window that had been temporarily removed by workers. The
prosecution asserted that this evidence was intended to rebut defense evidence that
appellant (1) felt remorse for his crimes, and (2) would adjust to incarceration and
could benefit others in prison.

Appellant contends that he was unfairly prejudiced by the state's
presentation of the rebuttal witnesses and that testimony of the corrections officers
"injected evidence of a nonstatutory aggravating circumstance, future
dangerousness," into the penalty phase. We disagree. The prosecution was
entitled to introduce relevant evidence rebutting the existence of any statutorily
defined or other mitigating factor first asserted by the defense. Gumm, 73 Ohio
St.3d 413, 653 N.E.2d 253, syllabus. Here, that is precisely what occurred. The
testimony of the state's rebuttal witnesses was indeed relevant to rebut mitigating
evidence that had been offered by the defense that appellant was remorseful for
the killing, that he would help or benefit others while serving a term of life
imprisonment, and that his life should therefore be spared. The testimony of the
state's rebuttal witnesses was not unfairly prejudicial to appellant, was not offered
for an improper purpose, and did not inject a "nonstatutory aggravating factor"
into the mix.
XIII
11

Proposition of Law No. 12

We have held, time and again, that Ohio's death penalty statutes are
constitutional. To appellant's credit, he acknowledges that the arguments
advanced under subsections (A) through (G) of Proposition of Law No. 12 have
been raised here for the sole purpose of preserving those issues for federal appeal.
The argument advanced in subsection (H) of Proposition of Law No. 12 is that this
court's decision in Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253, coupled with our
decision in State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311,
renders Ohio's death penalty scheme unconstitutional. According to appellant,
those decisions, taken together, encourage the arbitrary and capricious imposition
of the death penalty. However, our decisions in those two cases do no such thing.
The arguments advanced under subsection (I) of Proposition of Law No. 12 are
resolved by State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.
XIV
Proposition of Law No. 13

Appellant contends that he should have been allowed to challenge his
convictions for aggravated murder and aggravated robbery in the court of appeals.
However, as we held in Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, paragraphs one
and two of the syllabus:

"1. The amendments to Section 2(B)(2)(c) and Section 3(B)(2), Article IV,
Ohio Constitution, and the implementing statute, R.C. 2953.02, are constitutional.

"2. The courts of appeals shall not accept jurisdiction of any case in which
the sentence of death has been imposed for an offense committed on or after
January 1, 1995. Appeals in such cases shall be made directly from the trial court
to the Supreme Court of Ohio."
12

Thus, the court of appeals was correct to have issued the entry striking the
notice of appeal that appellant had filed with that court. Accordingly, we affirm
the judgment of the court of appeals in case No. 97-141.
XV
Proposition of Law No. 14

In Proposition of Law No. 14, appellant contends that his confession was
involuntary and that his right to counsel and right against self-incrimination were
violated because, according to appellant, police should have informed him before
questioning that "the statement he was about to give could be (and would be) used
against him in an effort to exterminate him in the electric chair." This court has
addressed and rejected similar contentions in a number of our prior cases. See,
generally, State v. Bell (1976), 48 Ohio St.2d 270, 278, 2 O.O.3d 427, 431, 358
N.E.2d 556, 562, reversed on other grounds (1978), 438 U.S. 637, 98 S.Ct. 2977,
57 L.Ed.2d 1010; and Garner, 74 Ohio St.3d 49, 60-61, 656 N.E.2d 623, 635.
Today, we likewise reject appellant's contentions that his confession was
involuntary simply because he was not informed by police of the gravity of the
possible punishment for the aggravated (felony) murder of Bany.

The second (and far more significant) issue raised by appellant is whether
he effectuated a valid -- i.e., voluntary, knowing, and intelligent -- waiver of his
rights under the Fifth and Fourteenth Amendments to have counsel present during
custodial interrogation. Specifically, appellant contends that the audiotaped
confession should have been suppressed and held inadmissible under the rule of
Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. We
disagree.

Edwards holds that once an accused undergoing custodial interrogation
invokes his right to have counsel present during questioning, all further
13

interrogation must cease, and the accused "is not subject to further interrogation
by the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police." (Emphasis added.) Id. at 484-485, 101 S.Ct. at 1885, 68 L.Ed.2d at 386.
We find no violation of Edwards here.

Appellant was advised of his Miranda rights before any questioning by
police. He voluntarily agreed to speak with police and signed a written waiver of
his Miranda rights. He then gave a full confession to police, but that confession
was not recorded on tape. When asked to repeat his statement on tape, appellant
agreed and was once again advised of his Miranda rights. However, at that point,
appellant informed police that he wished to speak to an attorney before proceeding
further. Therefore, police ceased questioning appellant and turned the recorder
off. The record indicates that police offered to get appellant a telephone book and
to assist him in obtaining counsel. Appellant told police that he did not want to
"put [the police officers] to any trouble," but the officers assured him that his
request for counsel was no trouble. Appellant then told police that he had changed
his mind concerning counsel and that he wanted to "put it [his confession] on
tape," and "get it off his chest." There is no evidence whatsoever that police said
or did anything to change appellant's mind, and appellant changed his mind after
only two or three minutes. Police then turned the recorder on and proceeded to
ask appellant a series of questions regarding his waiver of the right to counsel. In
response to these questions, appellant indicated that he fully understood his rights,
that no threats or promises had been made to induce or coerce him into confessing,
and that he wanted to put his confession on tape without talking to an attorney or
having one present during questioning. The record in this case clearly reveals that
it was appellant himself who, after invoking the right to counsel, initiated further
14

conversations or communications with police concerning his wish to confess, and
that appellant fully understood his right to counsel and voluntarily, knowingly,
and intelligently abandoned that right before the custodial interrogation resumed.

The trial court, in denying appellant's pretrial motion to suppress, implicitly
determined that appellant's confessions to police were voluntarily given and that
appellant had effectuated a voluntary, knowing, and intelligent waiver of his
Miranda rights before his initial (unrecorded) confession to police, and again
when he voluntarily confessed on tape after rescinding a request for counsel. The
record before us supports the trial court's conclusions in this regard, and we find
no error in that court's decision denying the motion to suppress. Accordingly, we
reject appellant's fourteenth proposition of law.2
XVI
Proposition of Law No. 15

The matter concerning the appropriateness of appellant's death sentence is
addressed in our discussion in Part XXIII, infra.
XVII
Proposition of Law No. 16

Appellant argues in Proposition of Law No. 16 that the prosecutor
improperly referred to facts not in evidence during closing argument in the guilt
phase. However, as appellant acknowledges, defense objections to these alleged
incidents of prosecutorial misconduct were sustained. The prosecution was
admonished by the court, and the jury was instructed to disregard the prosecutor's
remarks. The jury is presumed to have followed the court's instructions. State v.
Goff (1998), 82 Ohio St.3d 123, 135, 694 N.E.2d 916, 926. Appellant's argument
is rejected.
XVIII
15

Proposition of Law No. 17

Appellant contends that the trial court's instructions to the jury in the guilt
phase that defined "causation" in terms of foreseeability permitted a conviction for
aggravated murder without proof of purpose to kill. Appellant makes a similar
argument with respect to the trial court's instruction to the jury that "[i]f a wound
is inflicted upon a person with a deadly weapon in a manner calculated to destroy
life, the purpose to cause the death may be inferred from the use of the weapon."
Appellant's arguments are not persuasive. The trial court's instructions to the
jury, viewed as a whole, made it clear that a finding of purpose (and specific
intent) to kill was necessary in order to convict appellant on the charge of
aggravated murder. The jury in this case returned its verdicts in accordance with
the overwhelming evidence on the issue. Accordingly, we find no reversible error
here.
XIX
Proposition of Law No. 18

We have no reason to question the trial court's decision to excuse
prospective juror Solomon for cause. Her removal was warranted, since she
clearly and unequivocally stated to the court that she would be unable to perform
her duties as a juror. See, generally, State v. Moore (1998), 81 Ohio St.3d 22, 27,
689 N.E.2d 1, 8; State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478
N.E.2d 984, paragraph three of the syllabus, vacated and remanded on different
grounds (1985), 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452.
XX
Proposition of Law No. 19

Appellant contends that the prosecutor exercised two peremptory challenges
in a racially discriminatory manner. Appellant relies on Batson v. Kentucky
16

(1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, wherein the United States
Supreme Court recognized that the Equal Protection Clause of the United States
Constitution precludes purposeful discrimination by the state in the exercise of its
peremptory challenges so as to exclude members of minority groups from service
on petit juries. Id. at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 82-83. See, also, State
v. Hernandez (1992), 63 Ohio St.3d 577, 581, 589 N.E.2d 1310, 1313. To make a
prima facie case of purposeful discrimination, the defendant must demonstrate (1)
that members of a cognizable racial group were peremptorily challenged, and (2)
that the facts and any other relevant circumstances raise an inference that the
prosecutor used the preemptory challenges to exclude jurors on account of their
race. State v. Hill (1995), 73 Ohio St.3d 433, 444-445, 653 N.E.2d 271, 282. If
the defendant makes a prima facie case of discrimination, the state must then come
forward with a race-neutral explanation. Id. at 445, 653 N.E.2d at 282. A trial
court's finding of no discriminatory intent will not be reversed on appeal absent a
determination that it was clearly erroneous. Id. See, also, Hernandez at 583, 589
N.E.2d at 1314.

Here, the prosecution exercised one of its peremptory challenges against
prospective juror Denson, an African-American woman. The defense raised a
Batson claim to the prosecution's use of the peremptory challenge. While it is not
clear that the defense had met its burden of demonstrating a prima facie case of
discrimination, the trial court nevertheless asked the prosecutor to explain or
justify the peremptory challenge against Denson. The prosecutor responded:
"Judge, her brother-in-law was prosecuted by our office for murder and was
convicted. We feel a little uncomfortable with that." The trial court accepted this
explanation. The prosecutor later stated on the record that he was not challenging
17

prospective juror Stutson, another African-American woman, in order to purposely
leave her on the jury panel. Stutson was, in fact, seated as a juror in this case.

After the jury was seated, the prosecution exercised a peremptory challenge
against prospective alternate juror Slade, another African-American woman. The
defense raised another Batson objection, and the trial judge asked the state to
justify its challenge. The prosecutor stated that during the preliminary questioning
of the entire venire, Slade had raised her hand to indicate that she would have a
problem dealing with gruesome testimony and photographs, and that she might
have a problem with the death penalty. The prosecutor explained: "Later on in
the questioning [during individual voir dire] she changed that and was able to pass
for cause. But for those reasons we feel that she's indicated at least at one point
some problem sitting on this case." The trial court accepted this explanation.
Additionally, as it eventually turned out, the alternates were never required to
serve on the jury panel.

As to both Batson objections, the trial court required the state to respond
and accepted the prosecution's race-neutral explanations for the use of the
peremptory challenges. With respect to each Batson objection, we question
whether appellant ever demonstrated a prima facie case of purposeful
discrimination that would have necessitated a response by the prosecution. In any
event, the explanations provided by the prosecution were specific and race-neutral,
and the trial court's acceptance of the justifications was not erroneous.
Considering the relevant circumstances surrounding the Batson issues, the trial
court's apparent finding of no discriminatory intent was not clearly erroneous.
Indeed, it appears to us that the trial court's actions in permitting the use of the
peremptory challenges was reasonable and proper. Thus, appellant's claims that
18

the trial court erred in permitting the use of the peremptory challenges are not well
taken.
XXI
Proposition of Law No. 20

We reject appellant's Proposition of Law No. 20 on authority of State v.
Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of
the syllabus.
XXII
Proposition of Law No. 21

Appellant argues that the cumulative effect of errors at the trial court level
deprived him of a fair trial and a fair and reliable sentencing determination. We
reject appellant's argument in this regard. We find that appellant received a fair
trial and a fair and reliable sentencing determination.
XXIII

Having considered appellant's propositions of law, we must now
independently review the death sentence for appropriateness (also raised in
appellant's Proposition of Law No. 15) and proportionality. We find that the
aggravating circumstance appellant was found guilty of committing (R.C.
2929.04[A][7]) was proven beyond a reasonable doubt.

In mitigation, appellant's two sisters, Tabatha and LaSonya Raglin, and his
father, Walter Raglin, Sr., testified concerning the difficult circumstances of
appellant's youth.

Testimony established that appellant was born into a stable home
environment. However, when appellant was approximately two or three years old,
his parents began living apart. Following the separation, appellant and his two
older sisters, Tabatha and LaSonya Raglin, lived with their mother during a series
19

of peripatetic moves and travels. Apparently, things remained relatively stable for
a brief period of time following the separation, but the mother then began
carousing with male acquaintances and using crack cocaine. The mother
eventually became heavily involved in a life of drug and alcohol abuse, and
appellant's father became involved in a life of crime. On one occasion, the
children witnessed an incident where their mother shot and wounded their father
during a domestic dispute. During appellant's childhood, his father was
incarcerated on several occasions for drug-related offenses. The father was also
incarcerated at the time of appellant's trial and testified in the penalty phase (on
videotape) from a Kentucky prison where he was serving a twenty-year sentence
for possession of cocaine.

Testimony established that during appellant's childhood appellant and his
siblings moved with their mother from place to place. The mother had numerous
boyfriends and gave birth to two additional children (appellant's younger half-
brothers) from liaisons with different men. The housing in which the mother and
children lived was deplorable. The homes were characterized by extreme filth and
inadequate facilities. Some of the places were infested with mice and insects.
When the mother began dating workers at racetracks in Kentucky, she lived with
appellant and some of appellant's siblings in tack rooms near the horse stables.
The tack rooms were very small and there was no kitchen, electricity, plumbing, or
privacy. LaSonya recalled finding the mother in the bathroom at one residence
"shooting up" drugs intravenously, causing blood to spatter all over the room,
including the ceiling. LaSonya also recalled having attempted to clean the
bathroom so that her younger brothers would not be exposed to what their mother
had done. Additionally, the mother would often abandon the children for days or a
week at a time and spent some nights in jail for prostitution. While the mother
20

was out "[r]unning the streets and getting high," Tabatha and LaSonya were
attempting to raise the younger children, none of whom regularly attended school.
When appellant was approximately nine years old, the mother allowed him to
drink alcohol and smoke cigarettes, and appellant began stealing money at his
mother's command. The mother would use the money to support her drug habit.
On one occasion, someone fired shots at the family home after appellant, at his
mother's direction, stole $700 or $800 from a drug dealer that LaSonya had been
dating. The mother also engaged in prostitution and used her monthly ADC
checks to purchase drugs. Apparently, during his preteen years, appellant would
accompany the mother to drug deals as a form of protection for his mother.

Tabatha, at the age of twenty or twenty-one, obtained custody of appellant,
who, at the time, was either twelve or thirteen years old. Tabatha also obtained
custody of the two younger boys. However, Tabatha testified, "I was just a sister.
He [appellant] was already taller than I was. He never disrespected me, but he just
did what he wanted to do." Tabatha also testified, "Whatever I told Walter to do
she [the mother] would tell the opposite." Tabatha testified further: "He
[appellant] never had nobody to show him the right way. Nobody. My mother
always showed him the wrong way." LaSonya and Tabatha also recounted several
instances where appellant, as a child, had engaged in self-destructive behavior,
including jumping out of windows, putting firecrackers in his shoes, and shooting
himself in the leg. On one occasion, when appellant was eleven or twelve years
old, he was drunk and put his hand through a glass window. Appellant also spent
time in several juvenile facilities in Kentucky and, on one occasion, underwent
psychiatric evaluation.

After Tabatha had obtained custody of the children, appellant got in trouble
for not attending school and was once again placed in a juvenile facility in
21

Lexington, Kentucky. There, appellant's mother visited appellant and, without
permission and unbeknownst to either Tabatha or the authorities, took appellant
out of the facility and out of the state. When Tabatha and the authorities
discovered that appellant was missing, they assumed that appellant had simply
walked away from the facility. The mother then brought appellant to Cincinnati,
Ohio, and Tabatha and the authorities did not know of appellant's whereabouts.
While in Cincinnati, appellant, who was approximately thirteen or fourteen years
old at the time, lived with the mother and her boyfriend. The boyfriend, who was
also the mother's former pimp, sometimes would not permit appellant to live in the
house. Thus, appellant would occasionally be forced to live and sleep in a
junkyard owned by the boyfriend. It was not until a year later that Tabatha found
out where appellant was living.

Appellant also presented the testimony of John Hale, a Kentucky law
enforcement officer and a former social worker. Hale first met appellant when
appellant was approximately twelve or thirteen years old. At that time, Hale was a
social worker in Kentucky and had received a referral concerning appellant from
appellant's school or from a state social worker. Hale testified that when he
conducted the first home visit at Tabatha's residence, several people were seated
around a table smoking marijuana. According to Hale, Tabatha's having custody
of appellant was like "a child raising a child." Hale also testified that he was able
to form a bond with appellant during appellant's childhood. However, according
to Hale, the "lure of the streets" and appellant's "street savvy" caused him to opt
for the streets rather than to accept the services that Hale could provide.
Nevertheless, Hale testified that "Walter probably has more potential and value
tha[n] anybody I ever seen." Hale testified further: "He just never was challenged
and never believed that he was worth something because one of the greatest needs
22

that we have in life is [the] need to be loved. And I don't think he got the proper
love or somebody really to love him for who he is. Not for how tall he was or how
smart he was or how street savvy he was. He got fed the wrong information and
his behavior just escalated and channeled in the wrong direction." Hale had also
promised appellant, during his childhood, that he (Hale) would always be
available to appellant whenever he needed help. However, appellant apparently
never took full advantage of that offer until after he robbed and killed Bany.

During the mitigation phase, appellant gave an unsworn statement in which
he expressed sorrow for the pain and grief he had caused to Bany's family, to
society, and to his own family. Additionally, he stated, "[K]nowing that I took a
person's life * * * haunts me every second and every minute of my life. It's going
to be with me forever." Appellant also stated, "I don't think I deserve the death
penalty. I think I deserve a life sentence." Appellant then repeated that he was
sorry for what he had done and for putting everyone "in this situation like this,
especially the [Bany] family."

Dr. Kathleen J. Burch, appellant's court-appointed psychologist, testified in
mitigation. Burch, a clinical psychologist, first met with appellant in March 1996.
Between that time and the time of the mitigation hearing, Burch met with
appellant on a number of occasions, performed psychological testing, interviewed
Tabatha and LaSonya Raglin, and reviewed records and other information
concerning appellant. Burch noted that appellant had grown up in an "extremely
impoverished, extremely frightening, unsupportive and chaotic environment." She
also noted that "some of the conditions under which he lived as a young child are
sort of like the things you read about going on in Rio [de Janeiro] or Calcutta, so
it's pretty extreme circumstances." Burch described appellant as having a very
problematic and very insecure relationship with his mother. Burch stated that the
23

major bonding between appellant and the mother during his childhood years
centered around alcohol and drug use. Burch also stated that, according to
appellant and his sisters, the mother had begun furnishing him with alcohol when
he was just nine years old. Burch testified that "according to [appellant] he and
his mother would be together [and] she would do her drugs and he would do his."
Burch also testified that the relationship between appellant and the mother was
obviously very conflicted and unhealthy and that he lacked appropriate parental
support, guidance, and nurturing during his formative years.

Dr. Burch performed psychological and neuropsychological testing of
appellant. Burch testified that she was able to obtain valid test data despite the
fact that, among other things, appellant had initially lied to her to make himself
appear less responsible. Burch testified that the results of the psychological
testing were consistent with the profile of a person who lacks a well-developed
sense of self, who is prone to "problems with impulse control and his thinking that
are greatly in excess of those that other people experience," and who has "real
difficulties with his mood." Burch also testified that appellant has an overall IQ of
eighty-one which, according to Burch, "is at the low end of the low average range
and compared to others his age this means that 90 percent of people his age would
earn better scores than he would on this test." Burch testified further that the
neuropsychological testing yielded results that were consistent with a finding of
"some mild deficits in the integrity and functioning" of appellant's brain. Burch
stated that this mild brain damage may have been caused by a series of closed-
head injuries, such as the "repeated insults to [appellant's] brain over a number of
years from automobile accidents which he described to me, from fits, from falls
and also very heavy alcohol use."
24

Burch diagnosed appellant as suffering from adjustment disorder with
depressed mood, cognitive disorder, alcohol-related disorder, cannabis-related
disorder, borderline personality disorder, and antisocial personality disorder.
Burch was asked the following questions, and gave the following responses,
concerning the existence of the R.C. 2929.04(B)(3) mitigating factor:

"Q. Does Walter have a mental disease or defect?

"A. Yes, he does.

" * * *

"Q. Which do we have?

"A. Well, he actually is at least moderately impaired at this time both by
the adjustment disorder diagnosis and the cognitive disorder as well as the
personality disorder diagnoses. He is a person who has very significant, ongoing
difficulty with managing himself and dealing with the environment.

"Q. At the time of the offense for which Walter has been convicted, did
the symptoms of his mental defect substantially impair his capacity to appreciate
the criminality of his conduct?

"A. I don't believe so.

"Q. Is that opinion offered within a reasonable degree of psychological
certainty?
"A.
Yes.

" * * *

"Q. Okay. Mitigating factors [i.e., the R.C. 2929.04(B)(3) mitigating
factor] talking about lacking substantial capacity to appreciate the criminality or to
conform [sic]?

"A. Or to conform. I think that's the critical issue with Walter. Because I
do believe that with his marked impairments of impulse control that are
25

substantiated in his history and in the psychological testing results and neuro-
psychological test results he has much more difficulty than your average person in
withstanding impulses, in controlling impulses and controlling his behaviors.

"Q. So * * * would [it] be your opinion that his mental disease or defect
impairs his capacity to conform his conduct to the requirement of the law?
"A.
Yes.

" * * *

"Q. With all the clarification then, Doctor, maybe we can better
appreciate the composite picture, the overall of your diagnostic impression. If you
could just briefly highlight the most important features of your diagnosis.

"A. Okay. I believe that Walter has some acute psycho-pathology
meaning the adjustment disorder. He has this underlying depression and this
vulnerability to depression * * *. He also has from the neuro-psychological
evaluation evidence of some real impairment of his brain from repeated injuries
and the repeated assaults of the substance abuse which impair his ability to
thoughtfully and reasonably and adaptively plan and organize and conduct his
behavior.

"He also has the substance abuse diagnoses. They're not operative right
now except for the residual effects, and then he also qualifies for two personality
diagnoses, personality disorder diagnoses borderline and anti-social. Is that what
you wanted?

"Q. Yeah. And then again as a result of that diagnosis you feel that he
lacked substantial capacity to conform his conduct?

"A. Yes, I do."

Burch also testified about a variety of other matters concerning appellant's
history, background, and psychological composition. Additionally, Burch testified
26

that appellant had stated to her that he never intended to kill the victim. Burch
testified further that appellant had expressed regret over the killing.

On cross-examination, the prosecutor questioned the validity and legitimacy
of the psychological and neuropsychological test results and questioned Burch's
various conclusions regarding appellant's psychological conditions. Additionally,
the prosecutor pointed out to Burch that appellant had spoken to friends
immediately after the killing and had laughed and bragged about the murder.
Burch explained that appellant's behavior in bragging about the murder was not
surprising and was consistent with appellant's background and psychological
makeup. In response to further questioning, Burch indicated that appellant had
admitted to her that the shooting was intentional. With respect to the R.C.
2929.04(B)(3) mitigating factor, the prosecutor questioned Burch as follows:

"Q. You're saying he did know what he did was wrong?
"A.
Correct.

"Q. Are you saying that he could not prevent himself from doing that
though?

"A. No. What I said was that I believe that compared to the average
person his ability to conform his behavior to the requirements of the law in that
case was substantially impaired.

"Q. And that's because of this Anti-Social Personality Disorder that says
he has a disregard for the rights of other people?

"A. No. I believe that that's due to the other personality disorder aspects
of impaired impulse control in combination with the evidence of neuro-
psychological deficit impacting the frontal lobe functions. And also you would
have to say if indeed he was strongly intoxicated at the time, the impact of that, of
the substances.
27

"Q. You were assuming that he was strongly intoxicated?

"A. That's what I was told. That's [what] I was told. It would not be
inconsistent with his history.

"Q. The plan that he carried out that night, and again from his statement I
believe you can see that he wore a mask, he had a weapon, that he wiped his prints
off immediately afterwards --
"A.
Yes.

"Q. -- he waited, he apparently bypassed a couple of targets: a cabdriver
and a drug boy?
"A.
Um-hum.

"Q. Is that consistent with someone that's acting on impulse?

"A. Well, not that aspect of it."

Following the presentation of the defense witnesses, the state presented the
testimony of two witnesses in rebuttal. See our discussion in Part XII, supra.

Upon a review of the evidence in mitigation, it is clear to us that appellant
had an extremely difficult and troubled childhood. He lacked appropriate parental
support and guidance, his family life was chaotic, the conduct of his mother was
reprehensible, and the resulting situations appellant was subjected to during his
formative years are nothing short of atrocious. We find that appellant's troubled
childhood, history, and family background are entitled to some meaningful weight
in mitigation.

The nature and circumstances of the offense reveal nothing of any
mitigating value. The R.C. 2929.04(B)(1), (2), (5), and (6) mitigating factors are
not applicable on the record before us.
28

Appellant was eighteen years old at the time of the offense. We find that
this R.C. 2929.04(B)(4) mitigating factor (youth of the offender) is entitled to
some weight in mitigation.

The mitigating factor set forth in R.C. 2929.04(B)(3) is "[w]hether, at the
time of committing the offense, the offender, because of a mental disease or
defect, lacked substantial capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law." Here, there is no question
that appellant did appreciate the criminality of his conduct. However, Dr. Burch
clearly testified in mitigation that, in her opinion, appellant suffers from a mental
disease or defect. She also clearly testified that, because of appellant's
psychological and neuropsychological conditions and lack of impulse control,
appellant lacked substantial capacity to conform his conduct to the requirements of
the law. Nevertheless, we have serious reservations whether appellant established
the R.C. 2929.04(B)(3) mitigating factor by a preponderance of the evidence.
First, we note that there is no medical evidence of appellant's impaired brain
function, although we acknowledge that medical testing might be incapable of
confirming the type of mild brain deficit that Burch's testing revealed. Second,
Burch apparently relied on appellant's statements that he had suffered from
repeated head injuries. However, on cross-examination, the prosecutor pointed
out that during a medical evaluation on December 29, 1994, i.e., one year before
the killing, appellant denied that he had ever suffered a head injury. Third, it
appears from Burch's testimony on cross-examination that she had assumed for
purposes of her opinion that appellant was "strongly" intoxicated at the time of the
shooting. While there is some evidence of the fact that appellant may have
consumed alcohol and smoked marijuana prior to the murder, we find no credible
evidence that appellant was intoxicated. Fourth, and perhaps most important, we
29

find no credible evidence that reasonably suggests that appellant acted impulsively
and, thus, was substantially unable to control his behavior at the time of the
murder. In our judgment, the nature and circumstances of the offense clearly
indicate a lack of impulsive behavior in the planning and execution of the robbery,
in the killing that occurred during the robbery, or in appellant's actions
immediately following the robbery and killing. In any event, assuming that the
R.C. 2929.04(B)(3) mitigating factor was established in this case, we assign this
factor, and the testimony concerning appellant's various psychological conditions,
limited weight in mitigation.

We have also considered appellant's cooperation with police and his
expressions of remorse and sorrow. We assign these matters some, but very little,
weight in mitigation. (R.C. 2929.04[B][7].)

During the course of the robbery, Bany fully complied with the demands
appellant made of him, offered no resistance, and presented no threat. However,
appellant did not simply walk away from the robbery after having taken Bany's
money. He also took Bany's life. In his confession to police, appellant said, "I
didn'[t] have to shoot that man." There is no question about it -- appellant did not
need to shoot and kill Bany. Nevertheless, appellant did purposely kill Bany
during the course of the aggravated robbery, and the killing was senseless, tragic,
and wholly avoidable. The combined mitigating factors in this case (including
appellant's pathetic family background) are stronger than the mitigation we
typically see in some appeals involving the death penalty. However, the
mitigating factors in this case are heavily counterbalanced by the R.C.
2929.04(A)(7) specification of the aggravating circumstance appellant was found
guilty of committing.
30

Weighing the evidence presented in mitigation against the single R.C.
2929.04(A)(7) aggravating circumstance, we find that the aggravating
circumstance outweighs the mitigating factors. We find this beyond a reasonable
doubt.

As a final matter, we have undertaken a comparison of the sentence imposed
in this case to those in which we have previously imposed the death penalty.
Appellant's death sentence is neither excessive nor disproportionate in comparison
to the penalty imposed in similar cases. See, e.g., State v. Spivey (1998), 81 Ohio
St.3d 405, 692 N.E.2d 151.

Accordingly, for the foregoing reasons, we affirm appellant's convictions
and sentences, including the sentence of death, in case No. 96-2872. We affirm
the judgment of the court of appeals in case No. 97-141.
Judgments affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
FOOTNOTES:
1.
There is some confusion in the record concerning the spelling of the
victim's last name. The printed transcript uses the spelling "Baney," whereas
other portions of the record (including the indictment) reflect that the spelling is
"Bany." We have been forced to elect between the alternate spellings for purposes
of our opinion in this case. If the spelling we have chosen is incorrect, we extend
our deepest apologies to anyone who may take issue with that matter. We
certainly intend no disrespect for the memory of the decedent.
2.
We also note, in passing, that appellant apparently claims that he had a Sixth
Amendment right to counsel during the January 3, 1996 custodial interrogation.
However, we find that the Sixth Amendment was not applicable in this instance.
31

The right to counsel that appellant invoked (but later chose to rescind) derives
from the Fifth and Fourteenth Amendments to the United States Constitution as
those amendments were interpreted in Miranda. See Miranda v. Arizona (1966),
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See, also, Edwards v. Arizona
(1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378.
APPENDIX

"Proposition of Law No. 1: Where, in a capital case, the sentencing court
considers and weighs invalid or improper aggravating circumstances; fails to
consider and weigh valid mitigating factors presented by the defense; and fails to
specify the reasons why aggravation outweighs mitigation beyond a reasonable
doubt, the death sentence offends the Eighth Amendment to the Constitution of the
United States, and the right to due process under the Fourteenth Amendment, and
their counterparts in the Ohio Constitution, and must be reversed.

"Proposition of Law No. 2: Involuntary manslaughter is always a lesser
included offense of aggravated murder, and where the accused has denied a
purposeful killing, he is entitled by due process to an instruction on the lesser
offense, and denial of a proper request for an instruction on the lesser offense
violates the Due Process Clause of the U.S. and Ohio Constitutions, rendering the
conviction of capital murder unconstitutional, and the death sentence void.

"Proposition of Law No. 3: Where the state fails to prove beyond a
reasonable doubt the essential element of purpose to kill, convictions for
aggravated murder must be reversed as contrary to the right of the accused to due
process of law under the Ohio and federal Constitutions.

"Proposition of Law No. 4: Convictions for aggravated murder which are
contrary to the manifest weight of the evidence must be reversed, as contrary to
32

the right of the accused to due process of law under the Ohio and federal
Constitutions.

"Proposition of Law No. 5: Egregious misconduct by the prosecutor in the
penalty phase of capital proceedings requires reversal, and where the prosecutor's
final argument for death argues nonstatutory aggravating factors, argues `facts'
outside the evidence, attacks the relevance of evidence admitted by the court,
contains inflammatory remarks and invective against the accused and his counsel,
a death sentence based on a jury verdict following such arguments violates due
process and the Eighth Amendment of the United States Constitution, and their
counterparts in the Ohio Constitution, requiring reversal of the death sentence.

"Proposition of Law No. 6: A death sentence is imposed in violation of the
Eighth and Fourteenth Amendments to the U.S. Constitution, and Art. I. Sec[tions]
9 and 16 of the Ohio Constitution, following a penalty trial in which the trial court
denies a defense motion to limit the state to presentation of evidence of the
aggravating circumstances, and permits the state to reintroduce all evidence it
presented at the trial phase, including inflammatory irrelevant evidence about the
nature and circumstances of the killing itself.

"Proposition of Law No. 7: One who commits aggravated murder prior to
January 1, 1996, but is sentenced thereafter, is entitled to the benefit of an
instruction permitting the jury to consider the sentencing alternative of life without
parole, and the denial of a defense motion that the jury be permitted to consider
that alternative violates the rights of the defendant under R.C. 1.58(B), [Ohio]
Const. Art. II, Sec[tion] 15(D), the Fourteenth Amendment right to due process of
law, the Eighth Amendment prohibition against cruel and unusual punishment, and
their counterparts in the Ohio Constitution, Art. I. Sec[tions] 9 and 16.
33

"Proposition of Law No. 8: It is impermissible under the Eighth and
Fourteenth Amendments to the U.S. Constitution and Art. I. Sec[tions] 9 and 16 of
the Ohio Constitution for the trial court to instruct the jury that their verdict is
merely a recommendation, as such an instruction impermissibly attenuates the
jury's sense of responsibility for its decision, and a death sentence imposed
following such an instruction is constitutionally infirm.

"Proposition of Law No. 9: Where jury instructions at the penalty phase of
capital proceedings misstate the law to the jury, fail to define mitigating factors,
exclude relevant mitigation, and is [sic] otherwise erroneous and misleads [sic] the
jury, the resulting death sentence violates the Eighth and Fourteenth Amendments
[to the United States Constitution], and Art. I. Sec[tions] 9 and 16 of the Ohio
Constitution, and must be reversed.

"Proposition of Law No. 10: The increased need for reliability required in
capital cases by the Ohio and federal Constitutions mandates the granting to the
defense more than six peremptory challenges.

"Proposition of Law No. 11: It is error prejudicial to the right of the
accused to a fair[,] reliable, and impartial capital sentencing process, secured to
him by the Eighth and Fourteenth Amendments to the U.S. Constitution and
[Ohio] Const. [Article I] Sec[tions] 9 and 16, for the trial court to permit the state
to present evidence of other bad acts and statements of the accused not related to
the offense in question, ostensibly to rebut statements of the accused that he feels
remorse for taking the life of the victim in the case in which he is being sentenced.

"Proposition of Law No. 12: The Ohio death penalty statutes are
unconstitutional, violating the Eighth Amendment proscription of cruel and
unusual punishments, the Fourteenth Amendment guarantees to due process of law
34

and to the equal protection of the laws, and also violating the concomitant
provisions of the Ohio Constitution.
"[Sub-Proposition of Law 12(A):] The death penalty is so totally without
penological justification that it results in the gratuitous infliction of suffering, and
that consequently, there is no rational state interest served by the ultimate
sanction.
"[Sub-Proposition of Law 12(B):] Both locally, statewide and nationally,
the death penalty is inflicted disproportionately upon those who kill whites as
opposed to those who kill blacks, and even within Hamilton County, the death
penalty is selectively imposed, rendering the penalty as applied in Hamilton
County arbitrary and capricious on the one hand, and the product of racial
discrimination on the other.
"[Sub-Proposition of Law 12(C):] The use of the same operative fact to first
elevate what would be `ordinary' murder to aggravated murder, and then to
capital, death-eligible aggravated murder permits the state (1) to obtain a death
sentence upon less proof in a felony murder case than in a case involving prior
calculation and design, although both crimes are ostensibly equally culpable under
the Revised Code, and (2) fails to narrow the capital class to those murderers for
whom the death penalty is constitutionally appropriate [sic].
"[Sub-Proposition of Law 12(D):] The requirement that a jury must
recommend death upon proof beyond a reasonable doubt that the aggravating
circumstances outweigh only to the slightest degree the mitigating circumstances
renders the Ohio capital statutes quasi-mandatory and permits the execution of an
offender even though the mitigating evidence falls just short of equipoise with the
aggravating factors, with the result that the risk of putting someone to death when
it is practically as likely as not that he deserves to live renders the Ohio capital
35

process arbitrary and capricious, and, in the absence of a requirement that, before
death may be imposed, aggravating factors must substantially outweigh mitigating
factors, unconstitutional.
"[Sub-Proposition of Law 12(E):] The Ohio capital statutes are
constitutionally infirm in that they do not permit the extension of mercy by the
jury even though aggravating factors may only slightly outweigh mitigating
factors.
"[Sub-Proposition of Law 12(F):] The provisions of Crim.R. 11(C)(3)
permitting a trial court to dismiss specifications upon a guilty plea only under the
nebulous and undefined concept `in the interests of justice' (1) needlessly
encourages guilty pleas and the concomitant waiver of the right to jury, to
compulsory process and to confrontation and (2) reintroduces the possibility that
the death sentence will be imposed arbitrarily and capriciously.
"[Sub-Proposition of Law 12(G):] The Ohio capital sentencing scheme is
unconstitutional because it provides no standards for sentencing or review at
several significant stages of the process and consequently death sentences are
imposed, and reviewed, without significant statutory guidance to juries, trial courts
and reviewing courts to prevent the unconstitutional arbitrary and capricious
infliction of the death penalty.
"[Sub-Proposition of Law 12(H):] The decision[s] of the Supreme Court of
Ohio in [State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, and State v.
Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311] [have] rendered the Ohio
capital statutes unconstitutional in that they encourage, rather than prevent, the
arbitrary and capricious imposition of the penalty of death.
"[Sub-Proposition of Law 12(I):] The amendments to the Ohio Constitution
occasioned by the passage of Issue One, and the amendments to the Ohio Revised
36

Code enacted by the General Assembly to facilitate the changes in the Ohio
Constitution governing capital cases, violate the right of capital defendants to be
free from cruel and unusual punishments, secured to them by the Eighth
Amendment to the U.S. Constitution, and to due process of law and the equal
protection of the laws secured to them by the Fourteenth Amendment to the U.S.
Constitution. The Amendment to R.C. 2953.02, purporting to enable the [Ohio]
Supreme Court to weigh evidence in a capital case violates the Ohio Constitution.

"Proposition of Law No. 13: The rejection by the court of appeals of a
capital defendant's notice of appeal to that court pursuant to Issue One deprives
the defendant of due process of law and the equal protection of the laws under the
Fourteenth Amendment to the Constitution of the United States, and also of his
rights under the Eighth Amendment where he has been sentenced to death in the
trial court.

"Proposition of Law No. 14: The admission of involuntary, incriminating
statements, or those given without a valid waiver of the suspect's privilege against
self-incrimination, violates that privilege, guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the Constitution of the United States, and Art. I.,
Sec[tion] 10 of the Ohio Constitution.

"Proposition of Law No. 15: Where the state fails to prove beyond a
reasonable doubt at the penalty phase of a capital prosecution that the aggravating
circumstances of which the offender was convicted outweigh the mitigating
factors established by the evidence, a death sentence imposed violates the rights of
the accused under the Eighth and the Fourteenth Amendment[s] to the
Constitution of the United States, and Art. I. [Sections] 9 and 16 of the Ohio
Constitution, as well as rights secured to the offender by the Revised Code.
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"Proposition of Law No. 16: A prosecutor's argument which goes beyond
the facts in evidence is improper and, even where defense objections are sustained,
violates the right of the accused to due process under the U.S. and Ohio
Constitutions.

"Proposition of Law No. 17: Where, in a capital case, the guilt phase jury
instructions, over defense objections, state (1) that the essential element of cause
as being where the death is [sic] the foreseeable result of the act, and (2) that
purpose may be inferred from the use of a deadly weapon, the right of the accused
to due process of law under the Fourteenth Amendment to the U.S. Constitution
has been violated, requiring reversal of his conviction.

"Proposition of Law No. 18: A death sentence recommended by a jury from
service on which one or more veniremen were excused because of their views
concerning capital punishment cannot stand unless it affirmatively appears on the
record that each such veniremen [sic] excused for cause unequivocally indicates
that his scruples against capital punishment will automatically prevent him from
recommending the death penalty and/or that such views will render him unable to
return a verdict of guilty no matter what the evidence, and that he is prevented by
his scruples from following the instructions of the court and considering fairly the
imposition of the death sentence.

"Proposition of Law No. 19: It is constitutionally impermissible under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment to the
U.S. Constitution for the state, in a capital prosecution, to exclude from the jury
prospective jurors solely on the basis of their race.

"Proposition of Law No. 20: To comport with due process under the United
States and Ohio Constitutions, and the Ohio capital statutes, for purposes of
proportionality review, death sentences must be compared with all other cases
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within the jurisdiction in which the death sentence was imposed, as well as those
capital cases in which it was not imposed.

"Proposition of Law No. 21: Where, during a criminal trial, there are
multiple instances of error, and the cumulative effect of such errors deprives the
accused of a fair trial and undermines the reliability of the conviction and the
sentence of death imposed upon a jury verdict, the rights of the accused to due
process and to be free from cruel and unusual punishment, under the Fourteenth
and Eighth Amendments, respectively, of the United States Constitution, and their
corollaries in the Ohio Constitution, have been violated, requiring reversal."
(Emphasis sic.)
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