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[Cite as State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276.]

THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
[Cite as State v. Johnson (2000), 88 Ohio St.3d 95.]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
(No. 98-1333 -- Submitted November 2, 1999 -- Decided March 1, 2000.)
APPEAL from the Court of Common Pleas of Hamilton County, No. B-9708745.

This case concerns offenses committed by appellant, Rayshawn Johnson,
against two individuals. The offenses were charged in the same indictment and
consolidated for purposes of trial.

In June 1997, Nicole Sroufe moved into the Colony of Springdale apartment
complex. During the July 4 weekend, appellant and his girlfriend moved into the
complex. The patios of the apartments were located about ten to fifteen feet apart.
The first time that Sroufe noticed appellant was after she had been awakened by
the sound of a dog crying. From her living room, she could see that appellant had
a puppy suspended by the collar with one hand and was beating it with his other
hand, and yelling at it. Sroufe also saw appellant when she would walk to her car
in the morning to go to work and he would be letting his dogs outside.

On September 8, 1997, around 9:45 a.m., Sroufe left her apartment and
walked to the parking area of the complex. When she was almost to her car, she
heard rapid approaching footsteps behind her. Sroufe glanced around and saw
appellant coming toward her. He grabbed her from behind. He put one hand over
her mouth, his other hand around her waist, and told her, "C'mon, you're coming
with me. We're going back inside. Let's go." Appellant then started to drag her
backwards. Sroufe was able to struggle free. Appellant asked Sroufe for money
and he told her that he had been fighting with his girlfriend and needed money to
get out of town. Sroufe said that she did not have any money, and she also
mentioned that she was a social worker and worked in the justice system. At that

point, appellant started to apologize, and he had asked her to keep this incident
between them. He also asked Sroufe whether she could come over that night and
help with his girlfriend. He said that he was "tripping," did not know what he was
doing, and asked her forgiveness.

Sroufe immediately drove to the rental office and reported the incident. She
went to the police station, filed a report, and went to work. During the day, she
periodically checked with the police to see if appellant had been apprehended. By
5:00 p.m. he had not been arrested; Sroufe then contacted a friend to meet with her
and go to her (Sroufe's) apartment.

Shortly after arriving at her apartment, Sroufe saw appellant and his
girlfriend enter their apartment. Sroufe then contacted the police. The police
arrived and knocked on the door to appellant's apartment. Abby Glenn,
appellant's girlfriend, answered the door and told them that appellant was not there
and that she was not going to let them in. The police were eventually allowed to
enter the apartment and they found appellant in a closet in a rear bedroom hiding
under some boxes. Appellant was removed from the closet and arrested.

After being advised of his Miranda rights, appellant told police that he had
asked Sroufe for money, but he denied touching her. He attempted to explain
markings on her neck as self-inflicted. He was later released on bond.

Following this incident, appellant and Glenn moved into his grandmother's
house located on Fairfield Avenue in East Walnut Hills. The garage to the house
was contiguous to the back yard of property owned by Shanon and Norman Marks.
The Markses' home was located on Dexter Avenue. A privacy fence separated the
yards. From an upper floor window in the Fairfield Avenue house, one could see
into the Markses' yard and house, including the bathroom on the second floor of
the Markses' home.

On Wednesday, November 12, 1997, Norman Marks awoke at 5:45 a.m.,

2

showered, shaved, dressed, and prepared for his work day. He woke Shanon
around 6:50 a.m. before he left for work. Shanon's routine in the morning was to
shower, put on her robe, wrap a towel around her hair, and put on her makeup.
When Norman left that morning, he did not lock the back door or set the house
alarm. Norman and Shanon would usually call each other during the day. Around
noon, Norman left a voice mail message with Shanon at her workplace, but he did
not talk with her that day.

Norman stated that they would routinely withdraw $200 on the weekend and
that Shanon would take $50 for her weekly expenses. On the Sunday before
November 12, 1997, Shanon told him that she still had $50 and did not need
money for the week.

Norman was not expecting Shanon home from work on November 12 until
around 8:00 p.m. When he arrived home at approximately that time, he noticed
that her car was already parked in the driveway. The door to the house was
unlocked and the lights were off in the kitchen. He entered the living room, turned
on the television, at which time he heard that the upstairs television was also on.

Norman went upstairs and saw Shanon lying facedown in the bathroom. He
tried to "wake her up" and "get her to react," but she did not respond. He then
went into the bedroom and dialed 911. He noticed the contents of Shanon's purse
strewn on the bed. He carried the phone into the bathroom and dialed for help.
Shanon was cold and hard to the touch. The 911 operator told him to calm down
and attempt CPR.

Within a short time, firemen arrived at the Markses' home. Fireman Marty
Overmeyer was met at the door by Norman, who was extremely distraught.
Norman had blood on his shirt and face. He kept saying that his wife was dead.
Overmeyer went up to the bathroom and saw Shanon on the floor. Overmeyer
determined that she was dead and he instructed the rest of the firemen not to touch

3

anything.

Criminalist Selma West was called to the scene. She found several
identifiable prints in the home that were matched to the Markses'. She also
examined the contents of Shanon's purse. There was some change on the bed, but
no dollar bills. There were no identifiable fingerprints on the purse or its contents.
The next day, a shoe print was lifted from the bathroom doorway area and from a
railroad tie in the Markses' backyard.

An autopsy performed on Shanon indicated that she had defensive wounds
to her left forearm, some knuckles, and fingers. Her forearm had been broken and
the knuckles and fingers had scrapes and bruises. She also had massive head
injuries, consistent with being hit multiple times in the head with a ball bat. The
coroner indicated that someone would have had to swing a ball bat as hard as he
could to have caused the injuries. Shanon died of lacerations to the brain caused
by blunt impacts to her head.

On November 13, 1997, the police began a canvass of the neighborhood.
Several neighbors said that they had neither seen nor heard anything. During the
course of the day, local television stations aired interviews with appellant. He told
the media about hearing his dog bark on the morning of the murder and how
fearful he was that something like that had occurred in his neighborhood.

Police obtained appellant's name from the media and went to the house on
Fairfield Avenue to interview him. Appellant and his girlfriend resided on the
third floor of the home. Appellant took Officer Greg Ventre up to the third-floor
landing of the house and explained to Ventre that from a window he had watched
police take pictures in the bathroom of the Markses' home. He then took Ventre to
his third-floor bedroom. Appellant told Ventre that on the morning of the murder
he had heard his dog barking. Next to the shoes appellant stated that he had worn
on November 12 was a pair of Nike Air Jordans. Ventre looked at the bottom of

4

the shoes. He noticed that the pattern on the bottom of the shoes resembled the
shoe print taken earlier from the railroad tie. As Ventre and appellant left his
bedroom, appellant told Ventre that he was familiar with the inside of the Markses'
home, since he and his brother had helped the previous residents remodel it.
Appellant also knew that the house had an alarm system.

During the canvass of the neighborhood, Ventre had stopped an African-
American male, approximately ten years old, who said that he saw a man in the
neighborhood, around 10:15 a.m. on November 12, known as "Dante." When
Ventre asked appellant if he knew a man named Dante, he said that he did not.

Subsequently, Ventre went to Cohen Sportswear to obtain a pair of Air
Jordans in order to make a comparison between them and the shoes owned by
appellant. He learned that a new Air Jordan shoe was issued every year and that
the latest model was sold for the first time on November 1, 1997. The bottoms of
Air Jordan shoes are patented. Also that same day, Ventre received a call from
Nicole Sroufe. She had seen the media reports of the murder. She related her
altercation with appellant and expressed her concern that he was out on bond. At
that point, appellant became a suspect in the murder of Shanon.

Thereafter, Abby Glenn, appellant's brother Ronnie Johnson, and appellant
went to the police station for questioning. At the station, appellant signed a
Miranda rights form and the police questioned him. Appellant recounted his
whereabouts on the morning of the murder. His statement was then compared to
that of his brother and girlfriend for discrepancies.

Appellant talked with police and taped statements were made. Appellant
confessed to killing Shanon. He described what had occurred on that day and the
events leading up to the murder.

In his initial taped statement to police, appellant stated that he woke up
around 6:00 a.m. and dressed, putting on his Air Jordans. Appellant then went

5

down to the basement, grabbed a ball bat, which he stuffed under his jacket, and
left the basement. Appellant also put on gloves. He went into the garage, closed
the door, crawled through the back window, and dropped over a fence into the
Markses' back yard. He then entered the back door of the Markses' house.
Appellant stated that the door was open and "[i]f it wasn't opened, I was gonna do
it to somebody else, I guess." While inside, he walked through the kitchen and up
a staircase, which led to the bathroom where Shanon was located. At the time,
Shanon was looking out the bathroom window. Appellant stated that he hit her
two times in the back of the head and shoulder area, that she fell to the floor, and
that he hit her one more time. Appellant told the police that he could not
remember whether he hit her more than three times. He then entered a nearby
bedroom, found Shanon's purse on a bed, and, according to appellant, he emptied
the contents "to make it look like a robbery." As he was leaving, appellant heard
Shanon crying for help.

When he was in his garage, he took off his gloves and wrapped them in
newspaper. He threw the gloves in the garbage, which was due to be picked up
later that day. He took the bat and broke it with a brick. According to appellant,
he then borrowed a car from a friend named Dante and took the bat to Eden Park
and threw it away. He returned to the house on Fairfield Avenue, changed his
clothes, and left for the day. Appellant stated that he did not know why he
murdered Shanon. He said that he was not in his right mind at the time, that he had
smoked some "weed" that morning, and that he felt stressed and was just feeling
crazy.

Approximately forty minutes later, on a second tape, appellant told police
that he thought he had seen Shanon leave the house jogging. According to
appellant, he then grabbed a bat and went into the Markses' house to get money so
that he could move out of his grandmother's house because she had been

6

pressuring him to leave. Prior to making this statement, appellant acknowledged
that this taped statement was a followup or continuation of the first taped
statement, and that he was fully aware and understood his Miranda rights.

After appellant made these statements, he was arrested. Later that day,
appellant called his house. Glenn, his brother, and his grandmother were all on the
phone line. Glenn asked appellant if he had committed this crime, and he said
"yes."

The Air Jordans were seized from appellant's bedroom. Criminalist Mike
Trimpe compared the Air Jordans to the shoe print taken from the bathroom and
the railroad tie. The prints were consistent with each other, but he could not state
with certainty that the shoe had made the print.

When the police were unable to find the bat, they questioned appellant
again. He told police that he had further information that he had neglected to
provide to them earlier. Appellant was again given his Miranda rights and he also
signed another waiver form.

In this statement, appellant stated that on the day before the murder he was
at his mother's house with his girlfriend, his son, and two other males. His mother
made a call for him so that he and another individual could get some marijuana.
After picking up the marijuana, they saw Dante driving a Cadillac. According to
appellant, he knew Dante from school and they agreed to meet the next day around
7:00 a.m.

Appellant told the police that on November 12 he went down to the
basement to wash some clothes. He never washed any clothes, but while he was in
the basement he picked up a bat. Appellant stated that he then met Dante, they got
into Dante's car, Dante melted something onto some marijuana, and they drove
around and smoked it. According to appellant, he thought that he saw Shanon
jogging and he asked Dante if he wanted to go into her house to get some money.

7

Dante offered to let him sell drugs if he needed money, but appellant said no.
Appellant stated that they agreed to enter the house and that Dante entered the
home through the front and he entered through the back.

Appellant told police that they both went up the steps in the Markses' home
and that he (appellant) noticed a lady standing in the bathroom. According to
appellant, he hit Shanon three times in the neck area and she fell to the ground.
Appellant stated that he ran out of the bathroom and yelled, "Dante, I hit the lady,"
and that Dante asked appellant if she was dead. According to appellant, after he
told Dante that Shanon was not dead, he (appellant) went into the bedroom and
emptied the contents of her purse on the bed and Dante went into the bathroom and
began hitting Shanon across the face with a gun. Appellant stated that Dante told
him that she was not dead and that he (Dante) hit her to make sure that she could
not identify them.

Appellant also stated that he then returned to his house, acted like everything
was normal, went out to walk the dog, broke the bat with a brick from the
neighbor's yard, put the broken bat in his coat, and met Dante. Appellant told the
police that he gave Dante $10 to let him drive and that they drove to Eden Park to
get rid of the bat. Appellant stated that he then went home and got his dog and
brought it into the house to make it appear as if he had just returned from walking
it. Appellant ended the statement by describing how he was messed up and needed
to see a psychiatrist because he was having weird experiences.

During the canvass of the neighborhood, the police had also heard the name
Dante, so they thought that there might be another suspect. Since appellant had
connected Dante to his mother, they went to her apartment. She told police that
she had never heard of anyone by that name. Later, the police received a call from
a man who stated that he was Dante Williams. This person told them that the
"Dante" they were looking for lived on Fairfield Avenue. Police investigated the

8

matter, but were unable to locate any person by the name of Dante Williams.

Appellant was indicted by the Hamilton County Grand Jury for the
aggravated murder of Shanon. Count One of the indictment charged that appellant
purposely, and with prior calculation and design, caused the death of Shanon in
violation of R.C. 2903.01(A). Count Two of the indictment charged appellant with
the purposeful killing of Shanon during the commission of an aggravated burglary
and/or robbery in violation of R.C. 2903.01(B). These counts each carried two
R.C. 2929.04(A)(7) death penalty specifications, alleging that the murder was
committed during the course of an aggravated burglary and aggravated robbery and
that appellant was the principal offender or that he committed the offense with
prior calculation and design. Appellant was also indicted, in Counts Three and
Four, for the aggravated burglary and aggravated robbery of Shanon. In addition,
with respect to the offenses committed against Sroufe, appellant was indicted on
one count of kidnapping and one count of robbery.

Prior to trial, the state dismissed Count One of the indictment and the
specifications thereto. The remaining counts were then renumbered accordingly.

Appellant was tried before a jury. The jury found appellant guilty of all
charges and specifications. Following a mitigation hearing, the jury recommended
that appellant be sentenced to death for the aggravated murder of Shanon. The trial
court accepted the jury's recommendation and imposed the sentence of death. In
addition, the trial court sentenced appellant for the aggravated burglary and
aggravated robbery of Shanon, pursuant to Counts Two and Three, and the court
sentenced appellant, pursuant to Counts Four and Five, with regard to Sroufe.

The cause is now before us upon an appeal as of right.
__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.

9

H. Fred Hoefle and Perry L. Ancona, for appellant.
__________________

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

It is well settled that this court is not required to address and discuss, in
opinion form, each and every contention raised by the parties in a death penalty
appeal. See, e.g., State v. Scudder (1994), 71 Ohio St.3d 263, 267, 643 N.E.2d
524, 528; and State v. Wogenstahl (1996), 75 Ohio St.3d 344, 351, 662 N.E.2d
311, 318. We continue to follow that position today. Several issues raised by
appellant have been addressed and rejected under similar circumstances in a
number of our previous cases. Thus, these issues require little, if any, discussion.
Further, some of appellant's arguments have been waived. Upon careful review of
the record and the applicable law, we fail to detect any errors requiring reversal of
appellant's convictions and death sentence. We are convinced that appellant
received a fair trial, a fair and reliable sentencing determination, and competent
representation during his trial. Accordingly, we address and discuss, in detail, only
those matters that merit some discussion.
II

At trial, appellant gave defense counsel a note indicating that from his jail
window he had observed that a juror was given a ride by someone who he believed
to be court personnel. Defense counsel brought the note to the trial court's
attention. Thereafter, the following discussion occurred between the prosecutors,
appellant, counsel for appellant, and the court:
10

"THE COURT [Judge Robert P. Ruehlman]: Yeah. That was juror No. --
It was Janet Miller, Juror No. 7.

"Last night, it was about -- oh, what time was it? I think it was after 6
o'clock. I think it was after 6.

"THE DEFENDANT: It was before 6. I was looking out the window. I got
back up to the pod unit -- it was like 5, 5:30, and went straight to the window,
because I was writing a letter to my girlfriend, and looked out the window and
happened to see her coming from this side of Court Street. And I seen her. She
went to a bench to go catch her bus. She was sitting there for a minute. I was like:
That's one of my jurors. You know what I'm saying? I had seen her Monday.

"THE COURT: Right. She missed her bus. She missed her bus.

"THE DEFENDANT: She walked to the bus stop. She backed up. And he
parked. And he was talking to her. And she waved her hand off like: No, I want
to catch my bus. My bus haven't came [sic] yet.

"She waved her hand up. The bus came. She walked to the bus and stood
there and didn't get on. And she took a ride with the dude.

"THE COURT: What happened -- she went back to the bus, and the bus
driver said there's no more rides back out to where she lives.

"At that point she was downtown by herself, and there was bad storms
coming up, with clouds, within ten minutes. It was really bad rainstorm, bad
thunderstorm. And so I gave her a lift back to the Park and Ride. So it's as simple
as that. We didn't talk about the case.

"MR. PIEPMEIER [prosecution]: You were the one that took the --

"THE COURT: Yeah, She was parked at the Park and Ride. There was no
buses out there, going out there. So that's why she went back to the bus.

"And she said: My God, I missed the bus.

"I said -- well, because I was wondering what she was doing sitting on the
11

bench all by herself, because it's not a great part of town to live in, and there's a lot
of crime down here and she's the only woman sitting all by herself on the bench.

"So the bus came. I told her to check. She checked. The bus driver said:
No more buses going your way.

"So I said: Get in, and we won't talk about the case.

"And I gave her a lift out.

"MR. PIEPMEIER: Okay.

"THE COURT: If you want me to take her off, I can always take her off the
jury. She's a fairly reasonable juror. I think she's actually kind of -- kind of one
of those noncommittal jurors as far as the death penalty. If I were a defense
attorney, I'd want her on the jury, you know, but it's up to you.

"MR. PANDILIDIS [defense counsel]: If we may have just like a minute or
so to consult with our client at the table, and then we'll let you know.

"THE COURT: Sure. We didn't talk about the case at all. But my staff
transports these people around. You know, they transport them to the scene and
everything else. And they all work for me. So it's -- whether I take her or
somebody from the staff takes her, there was nobody from my staff around, and
she was stuck down there.

" * * *

"THE COURT: You want to question the juror?

"MR. PANDILIDIS: No. I don't want to make a big deal --

"THE COURT: You have the right to question the juror, if you want to ask
what we talked about.

"MR. PANDILIDIS: You gave me the opportunity to consult with my client
after we brought this to your attention a few minutes ago.

"THE COURT: Okay.

"MR. PANDILIDIS: The client indicates to me he wants her off the jury.
12

That is what I'm conveying to the Court now, to have her removed and replace her
with the first alternate.

"MR. DETERS [prosecution]: Judge, you have access to these jurors all the
time.

"THE COURT: Oh, sure. We tell them where to go. We talk to them.

"MR. LONGANO [prosecution]: The bailiff is with them 24 hours a day
when we sequester them.

"MR. DETERS: If the trial judge in any case cannot be believed when he
said he didn't talk to a juror --

"THE COURT: I've given him an opportunity to talk to this juror with his
client present. He can talk to this juror and ask her. And he doesn't want to talk to
her. So I'm going to overrule the motion.

"MR. PANDILIDIS: If you want -- okay. I will question her, but I --

" * * *

"THE COURT: Let's bring her in.

" * * *

"MR. BREYER [prosecution]: I think the bottom line here is that the Court
is a neutral party here. Since the Court is not one of the parties, he's not an
adversary here. It's the Court's function to look out for the jury and to supervise
the jury and for the Court.

"THE COURT: Exactly.

"MR. BREYER: -- In the face of a juror who is in that strange part of town
who needs a ride --

"THE COURT: I think it's important to establish we didn't talk about
anything."

Thereafter, the following discussion took place in the judge's chambers:

"MR. DETERS: Ma'am, why don't you sit right there?
13

" * * *

"THE COURT: * * *

"Last night she was waiting for a bus and I saw her. I don't know what time
it was. 5:30, quarter to 6. It was getting late. It's not a nice part of town. And I
stopped and asked her what was going on.

"And about that time another bus came up, and she talked to the bus driver,
and evidently found out there was no more buses going out to the place where she
had to park and ride. She parks her car and then takes a bus.

"So a thunderstorm was coming, and it was actually a very bad
thunderstorm. There [were] tornado storm warnings and everything out. This --
there was actually a funnel cloud.

"So I -- actually, what I did, I put her in my car and I gave her a ride to the
Park and Ride. And the first thing I said to her was: `We can't talk about the case
or anything.'

"Did we talk about the case?

"JUROR NO. 7: No.

"THE COURT: Say anything about the case?

"JUROR NO. 7: No, not at all.

"THE COURT: Okay. Good.

"I'm saying as an officer of the Court I didn't talk about the case. She's
indicating that too.

"Did you want to ask anything?

"MR. PANDILIDIS: Mr. Dixon will inquire. Just a few questions, your
Honor.

"MR. DIXON [defense counsel]: Ms. Miller, what time was this? Do you
recall?

"JUROR NO. 7: It was around like 20 till 6 or something like that.
14

"MR. DIXON: Is that immediately after we got out of court last night?

"JUROR NO. 7: It was a little after that. I mean -- well, when I --

"THE COURT: It was a lot after that.

"JUROR NO. 7: Yeah, because I was trying to get the bus.

"MR. DIXON: Was anybody else in the car?

"JUROR NO. 7: Excuse me?

"MR. DIXON: It was just you and the Judge?

"JUROR NO. 7: Yes.

"MR. DIXON: How long of a ride was it?

"JUROR NO. 7: Well, from here to Loveland. I'm guessing -- what?

"THE COURT: Twenty-five minutes.

"JUROR NO. 7: I was going to say twenty minutes.

"THE COURT: Nothing was said about anything dealing with this
particular case?

"JUROR NO. 7: No. As a matter of fact, I didn't say anything to anybody
about anything.

"MR. DIXON: I have nothing further.

"JUROR NO. 7: Family or no one.

"THE COURT: All right.

"MR. PIEPMEIER: We have no questions.

"THE COURT: You guys all know -- you can check with the weather
service. They had a tornado warning out last night.

"MR. DETERS: I don't think a common act of courtesy is any problem at
all.

"THE COURT: I don't either, as long as we're not talking about the case.
I'm not going to let her stay in a bad part of town, especially with a thunderstorm.

"MR. PANDILIDIS: I would just ask Mrs. Miller not discuss it with the
15

other jurors.

"JUROR NO. 7: I didn't say anything. I absolutely said nothing to no one,
no family, nothing."

In propositions of law one through four, appellant raises various arguments
predicated on the fact that Judge Ruehlman gave juror Miller a ride to her car after
realizing that she had missed her bus. Appellant contends that the contact between
Judge Ruehlman and Miller was "presumptively prejudicial," that the state failed
to demonstrate that the contact was not prejudicial, that the judge should not have
presided over the in-chambers hearing, and that he improperly influenced the
responses given by Miller. Appellant also maintains that his counsel provided
ineffective assistance of counsel in the manner in which Miller was questioned.

Although Judge Ruehlman was clearly performing an act of kindness by
trying to protect one of the jurors, his actions also, unfortunately, created the
appearance of impropriety. Even if no discussion occurred between Miller and
Judge Ruehlman regarding the case, the fact that Miller got into the judge's car
was sufficient to raise a question of bias or collusion in the mind of appellant.
Canon 1 of the Code of Judicial Conduct states, "An independent and honorable
judiciary is indispensable to justice in our society." (Emphasis added.) Thus,
Judge Ruehlman should have taken some alternate action when faced with the
situation that confronted Miller. Moreover, the appearance of impropriety was
compounded further by the fact that it was appellant and not Judge Ruehlman who
first brought the incident to the attention of the parties when court convened the
following morning.

Appellant requested that the court remove Miller from the panel, which
Judge Ruehlman had originally offered as an option. Judge Ruehlman ultimately
denied appellant's request. The defense then requested and was granted the
opportunity to question Miller. At the in-chambers hearing, Judge Ruehlman again
16

stated what had transpired at the bus stop the previous day. Miller agreed with
Judge Ruehlman, and she stated emphatically that they both never discussed the
ongoing case.
In
State v. Phillips (1995), 74 Ohio St.3d 72, 656 N.E.2d 643, this court set
forth the procedure and applicable law a court must follow when an allegation is
made that an improper communication has occurred with a juror. In Phillips, we
held:

"When a trial court learns of an improper outside communication with a
juror, it must hold a hearing to determine whether the communication biased the
juror. Smith v. Phillips (1982), 455 U.S. 209, 215-216, 102 S.Ct. 940, 945, 71
L.Ed.2d 78, 84; Remmer v. United States (1954), 347 U.S. 227, 229-230, 74 S.Ct.
450, 451, 98 L.Ed. 654, 656. `In a criminal case, any private communication * * *
with a juror during a trial about the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial * * *. [T]he burden rests heavily upon
the Government to establish, after notice to and hearing of the defendant, that such
contact with the juror was harmless to the defendant.' Id. The Sixth Circuit,
however, has held that the defense must prove that the juror has been biased.
United States v. Zelinka (C.A.6, 1988), 862 F.2d 92, 95, citing Smith v. Phillips,
supra; contra United States v. Littlefield (C.A.9, 1985), 752 F.2d 1429, 1431. In
cases involving outside influences on jurors, trial courts are granted broad
discretion in dealing with the contact and determining whether to declare a mistrial
or to replace an affected juror. See United States v. Daniels (C.A.6, 1976), 528
F.2d 705, 709-710; United States v. Williams (C.A.D.C.1987), 822 F.2d 1174,
1189." Phillips, 74 Ohio St.3d at 88-89, 656 N.E.2d at 660-661.

Judge Ruehlman's presiding over the hearing did not amount to reversible
error. Although the better practice in a case such as this would have been to have
another judge preside over the hearing, the record does not indicate that Judge
17

Ruehlman's conduct and involvement in the hearing were such that he improperly
influenced the proceedings, thereby prejudicing appellant. At the hearing, Judge
Ruehlman insisted that he and Miller did not discuss the case. He then questioned
Miller and, without hesitation, she agreed with Judge Ruehlman as to what had
occurred. Thereafter, defense counsel was given the opportunity to question
Miller. Upon questioning by defense counsel, she repeatedly and forcefully
expressed that she and Judge Ruehlman had not discussed the case. In fact, she
stated that she had not discussed the case with anyone. Thus, although the contact
between Judge Ruehlman and Miller should not have occurred, it was, under the
circumstances, harmless. Equally important, appellant has presented no evidence
that he has been biased in any respect because of the contact.

Appellant also contends that he was provided ineffective representation
because defense counsel did not question Miller with "sufficient vigor," and
because counsel did not object to her remaining on the jury. However, in order to
prevail on a claim of ineffective assistance of counsel, appellant is required to
show that, in light of all circumstances, counsel's performance fell below an
objective standard of reasonableness. He must also show that prejudice arose from
counsel's performance -- that is, there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the trial would have been different.
See Strickland v. Washington (1984), 466 U.S. 668, 687-694, 104 S.Ct. 2052,
2064-2068, 80 L.Ed.2d 674, 693-698; and State v. Bradley (1989), 42 Ohio St.3d
136, 538 N.E.2d 373, paragraphs two and three of the syllabus.

The questioning of Miller by appellant's counsel was adequate in all
respects. Counsel could have asked Miller and Judge Reuhlman what they had
talked about, if anything, during the car ride to where Miller's car was parked.
However, if defense counsel had vigorously questioned Miller, as suggested by
appellant, and Miller remained on the panel, counsel would have risked alienating
18

the juror. Following the hearing, defense counsel could have again requested that
Miller be replaced. However, defense counsel was obviously convinced, and so
are we, that the contact between Judge Ruehlman and Miller was not prejudicial to
appellant.

Appellant has failed to demonstrate that the trial judge in this case abused
his discretion in proceeding with the trial and retaining Miller on the jury. Phillips,
74 Ohio St.3d at 89, 656 N.E.2d at 661. Judge Ruehlman and Miller both stated
repeatedly, and convincingly, that they did not talk about the case. There is no
evidence that Judge Ruehlman's or Miller's obligation to be impartial has been
compromised in any manner. Appellant was not prejudiced by the innocent
contact between the judge and juror and no constitutional rights have been
deprived. Accordingly, we reject appellant's propositions of law one through four.
III

The offenses involving Nicole Sroufe and Shanon Marks were charged in
the same indictment, resulting in a single trial. Appellant filed a motion to "grant
him relief from prejudicial joinder." Specifically, appellant requested that the trial
court grant "him a seperate [sic] trial on all Counts dealing with allegations
pertaining to alleged acts on different dates than the date of the homicide." He also
moved to prohibit the state from admitting evidence of any "other acts" allegedly
committed by him.

The trial court overruled both motions and held:

"Then on the motion for relief from prejudicial joinder, I find that both cases
are -- I mean, they're chillingly similar of young women. He lives close to them.
He has a view of their house. It happened during the daytime. They were both
violent attacks. And clearly I think there was a motive of robbery. * * *

"So under [Crim.R.] 8, two or more offenses may be charged if the offenses
are of the same or similar character, which I feel they are, and they're part of a
19

common scheme or plan. And under [Evid.R.] 404(B), * * * the prosecutor can
use evidence from the prior case in Springdale [Sroufe incident] to show the
motive here to be robbery."

In his thirteenth proposition of law, appellant contends that the trial court
abused its discretion by refusing to grant separate trials for the Sroufe offenses and
for the aggravated murder of Shanon. Appellant also asserts that the consolidated
trial resulted in the admission of "other acts" evidence that was prejudicial to him.
We disagree.

"The law favors joining multiple criminal offenses in a single trial under
Crim.R. 8(A). State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, 298.
Two or more offenses can be joined if they are of the same or similar character.
State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 314-315, 421
N.E.2d 1288, 1290. An accused may move to sever under Crim.R. 14 if he can
establish prejudice to his rights. State v. Lott, 51 Ohio St.3d at 163, 555 N.E.2d at
298; State v. Wiles (1991), 59 Ohio St.3d 71, 76, 571 N.E.2d 97, 108. For the
appellate court to reverse a trial court ruling that denies severance, the accused
must show that the trial court abused its discretion. State v. Lott, 51 Ohio St.3d at
163, 555 N.E.2d at 298; State v. Torres, supra, at syllabus.

"The prosecutor may counter the claim of prejudice in two ways. State v.
Lott, 51 Ohio St.3d at 163, 555 N.E.2d at 298. The first is the `other acts' test,
where the state can argue that it could have introduced evidence of one offense in
the trial of the other, severed offense under the `other acts' portion of Evid.R.
404(B). Id.; see, also, Bradley v. United States (C.A.D.C.1969), 433 F.2d 1113,
1118-1119. The second is the `joinder' test, where the state is merely required to
show that evidence of each of the crimes joined at trial is simple and direct. State
v. Lott, supra; State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201,
204, 405 N.E.2d 247, 251; State v. Torres, 66 Ohio St.2d at 343-344, 20 O.O.3d at
20

315, 421 N.E.2d at 1291. If the state can meet the joinder test, it need not meet the
stricter `other acts' test. Thus, an accused is not prejudiced by joinder when simple
and direct evidence exists, regardless of the admissibility of evidence of other
crimes under Evid.R. 404(B). State v. Lott, supra; State v. Roberts, supra; State v.
Torres, supra." State v. Franklin (1991), 62 Ohio St.3d 118, 122, 580 N.E.2d 1, 5-
6.

The crimes against the two victims were not the same. However, the two
crimes had similar characteristics. Both incidents involved female victims who
lived in close proximity to appellant, and both involved violent theft offenses. In
any event, regardless of the admissibility of evidence of other crimes in accordance
with Evid.R. 404(B), the joinder test is easily met in this case.

The evidence with respect to the offenses against the two victims was simple
and direct. The jury could easily segregate the evidence. The first two witnesses
called in the state's case-in-chief (Sroufe and Sergeant Thomas Wells) testified
regarding the charges against appellant for the acts committed against Sroufe. The
remainder of the testimony focused on the murder of Shanon. The only other
connection at trial between the two victims occurred when Officer Ventre testified
that during the course of the murder investigation he received a call from Sroufe,
who had seen appellant interviewed by the local media. In this regard, we believe
that it is very unlikely that the jury would have confused the evidence proving the
separate offenses charged against appellant.

Moreover, appellant has not attempted to argue that he would have defended
either case differently if the charges had not been joined. Franklin, 62 Ohio St.3d
at 123, 580 N.E.2d at 6. Under these circumstances, the trial court did not err in
joining the offenses under Crim.R. 8(A) and subjecting appellant to a single trial.
Thus, we find appellant's thirteenth proposition of law not well taken.
IV
21

Appellant told police that a man named Dante was involved in the murder.
The police asked appellant how they could find or who could identify that person.
Appellant told them that his mother and Dante had lived on the same street, that his
mother knew Dante, and that she could assist them in identifying him. Officer
Robert Randolph testified that appellant's mother told him that she did not know
anyone named Dante and had never heard of anyone by that name. Randolph was
then asked by the prosecution whether, based on the investigation, he believed that
"there was a second person that participated in this homicide with the defendant."
He answered, "I don't believe there was a second person involved in this, no, sir."

In his fourteenth proposition of law, appellant argues that it was error to
allow Randolph to state his opinion that no other person was involved in the crime.
However, appellant failed to object at trial and, thus, he has waived all but plain
error with respect to this testimony.
In
State v. Webb (1994), 70 Ohio St.3d 325, 638 N.E.2d 1023, this court
considered a similar issue. In Webb, the court held that a police officer's opinion
testimony was inadmissible under Evid.R. 701 because the rule "limits lay opinion
testimony to `opinions and inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of his testimony
or the determination of a fact in issue.' " Id. at 333, 638 N.E.2d at 1031.
Therefore, because the officer's opinion "was not based wholly on his perceptions,
but at least partly on information from * * * others," it was inadmissible. Id. at
333, 638 N.E.2d at 1031-1032.
As
in
Webb, the officer's opinion here was based partly upon the work of
other investigators. The state's argument that the testimony was solicited to
explain the focus of the police investigation is not fully supported by the evidence.
Given the context of the questioning, the purpose of Randolph's testimony was
clearly to discredit any theory of a second perpetrator.
22

Nevertheless, we find no plain error. The evidence in this case clearly
shows that appellant acted alone in this crime. Indeed, upon a careful review of the
record before us, we find that appellant's statement concerning the involvement of
a second person named Dante is simply not believable. Accordingly, appellant's
fourteenth proposition of law is not persuasive.
V

In his fifteenth proposition of law, appellant alleges that the trial court
allowed into evidence testimony from two police officers that constituted
prejudicial hearsay. Specifically, appellant points to (1) testimony by Officer
Couch concerning discrepancies in statements given by appellant and statements
from others regarding appellant's conduct on the morning of the murder, (2)
testimony by Officer Randolph concerning statements from others as to what they
observed in the area of the murder scene on the morning of the murder, and (3)
testimony by Randolph concerning statements appellant's mother made to
Randolph when he questioned her about whether she knew an individual by the
name of Dante.

Appellant failed to object to the testimony at trial and, thus, has waived all
but plain error with respect to these matters. Much of the testimony at issue was
offered by the state to show inconsistencies in statements given by appellant to
police. However, even assuming that some of the challenged testimony was
hearsay, appellant has failed to demonstrate plain error, i.e., that but for the alleged
errors, the outcome of the trial would have been otherwise. See State v. Chinn
(1999), 85 Ohio St.3d 548, 562, 709 N.E.2d 1166, 1179. The testimony of Couch
and Randolph clearly did not prejudice appellant and deny him a fair trial.
Therefore, we find appellant's fifteenth proposition of law not well taken.
VI

In his seventeenth and eighteenth propositions of law, appellant challenges
23

the sufficiency and weight of the evidence as it relates to the Sroufe offenses. In
his nineteenth and twentieth propositions of law, appellant challenges the
sufficiency and weight of the evidence as it relates to the felony-murder of Shanon.

When a defendant challenges the sufficiency of evidence, "the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." (Emphasis sic.) Jackson v. Virginia (1979),
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. Moreover, in State
v. Fears (1999), 86 Ohio St.3d 329, 342, 715 N.E.2d 136, 150, we stated that "[i]n
capital cases, this court has the power to determine whether the weight of the
evidence supports the judgment. State v. Smith (1997), 80 Ohio St.3d 89, 102-103,
684 N.E.2d 668, 683-684. A verdict can be against the manifest weight of the
evidence even though legally sufficient evidence supports it. State v. Robinson
(1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148." See, also, R.C. 2953.02
("The supreme court in criminal cases shall not be required to determine as to the
weight of the evidence, except that, in cases in which a sentence of death is
imposed for an offense committed on or after January 1, 1995, and in which the
question of the weight of the evidence to support the judgment has been raised on
appeal, the supreme court shall determine as to the weight of the evidence to
support the judgment and shall determine as to the weight of the evidence to
support the sentence of death as provided in section 2929.05 of the Revised
Code.").

"Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as
a matter of law to support the jury verdict, State v. Thompkins (1997), 78 Ohio
St.3d 380, 386, 678 N.E.2d 541, 546, whereas the `[w]eight of the evidence
concerns the "inclination of the greater amount of credible evidence, offered in a
24

trial, to support one side of the issue rather than the other." ' " (Emphasis sic.) Id.
at 387, 678 N.E.2d at 546." Smith, 80 Ohio St.3d at 113, 684 N.E.2d at 691.
A

Upon a thorough review of the record, we are convinced that the evidence
advanced by the state at trial was more than sufficient to prove the Sroufe offenses.
In order to prove kidnapping, the state was required to establish that appellant "by
force, threat, or deception * * * remove[d] another from the place where the person
is found or restrain[ed] the liberty of another person" to "facilitate the commission
of any felony or flight thereafter." R.C. 2905.01(A)(2). In addition, with respect
to the robbery charge, the trial court instructed the jury under R.C. 2911.02(A)(3),
which provides that "[n]o person, in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense," shall "[u]se or threaten the
immediate use of force against another."

Here, the state easily met its burden regarding both charges. At trial, Sroufe
identified appellant as the assailant. She testified that appellant approached her
suddenly, grabbed her from behind, put one hand over her mouth, and his other
hand around her waist. He then told her, "C'mon, you're coming with me. We're
going back inside. Let's go." He started to drag her backwards. After she broke
free, he asked her for money. Sroufe had marks on her neck from the incident.
The trial testimony of Sroufe was believable and sufficient to establish appellant's
guilt of the offenses beyond a reasonable doubt.
Appellant
also
contends
that, in accordance with State v. Logan (1979), 60
Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, his kidnapping conviction
should be reversed because there was no separate animus sufficient to sustain the
charge. In Logan, syllabus, this court held:

"In establishing whether kidnapping and another offense of the same or
similar kind are committed with a separate animus as to each pursuant to R.C.
25

2941.25(B), this court adopts the following guidelines:

"(a) Where the restraint or movement of the victim is merely incidental to a
separate underlying crime, there exists no separate animus sufficient to sustain
separate convictions; however, where the restraint is prolonged, the confinement is
secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to each offense
sufficient to support separate convictions;

"(b) Where the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each offense sufficient to
support separate convictions."

The guidelines set forth in Logan establish that a separate offense of
kidnapping can occur if there is a prolonged restraint, a secretive confinement, or
substantial movement of the victim. The offense can also occur if the asportation
or restraint of the victim subjects the victim to a substantial increase in risk of harm
separate and apart from that involved in the underlying crime. See, also, State v.
Simko (1994), 71 Ohio St.3d 483, 488, 644 N.E.2d 345, 351, citing Logan, 60 Ohio
St.2d at 135, 14 O.O.3d at 378, 397 N.E.2d at 1351 ("the test to determine whether
the kidnapping was committed with a separate animus and thus amounts to a
separate offense is `whether the restraint or movement of the victim is merely
incidental to a separate underlying crime, or instead, whether it has a significance
independent of the other offense' ").
In
State v. Seiber (1990), 56 Ohio St.3d 4, 14-15, 564 N.E.2d 408, 420, this
court found kidnapping where the defendant repeatedly ordered bar patrons to lie
on the floor while the defendant brandished his gun and threatened patrons with
death. An accomplice of the defendant posted himself at the door, armed with a
shotgun, and barred anyone from leaving. When one of the patrons refused to
26

comply with the defendant's demands to lie on the floor, the defendant shot and
killed him. Under these circumstances, the court held that it was reasonable for a
jury to conclude that the defendant had restrained the victim of his liberty and that
this evidence was sufficient to support the kidnapping charge and specification.
Applying
Logan, we believe that the record supports a finding that appellant's
kidnapping conviction was proper. Further, the evidence of kidnapping here is as
compelling as the facts and circumstances found sufficient to support a kidnapping
conviction in Seiber. Again, the evidence set forth at trial established that
appellant charged Sroufe. He attacked her from behind, grabbing her around the
face and waist. The attack left marks on Sroufe. He then began to drag her away
from her car. And, as he was dragging her, he stated, "C'mon, you're coming with
me. We're going back inside. Let's go." After she was able to struggle free,
appellant asked Sroufe for money. In this regard, the evidence indicates that
appellant committed the offenses, each with a separate animus, and this evidence
was both sufficient and substantial.

Accordingly, appellant's seventeenth and eighteenth propositions of law are
not well taken.
B

With respect to the felony-murder of Shanon Marks, appellant claims that
the evidence was insufficient to sustain his convictions on the charge of aggravated
murder, the counts of aggravated burglary and aggravated robbery, and the R.C.
2929.04(A)(7) specifications of aggravating circumstances premised upon
aggravated burglary and aggravated robbery. Appellant also claims that his
convictions are against the manifest weight of the evidence. We strongly disagree.
Clearly, the evidence presented at trial relating to these offenses was sufficient and
substantial.

In order to commit a theft offense in the Markses' home, appellant, using
27

stealth, entered the home through the back door, wearing gloves and armed with a
ball bat. He knew that the house was occupied, since he could see into the
bathroom of the Markses' home. While in the home, he beat Shanon with a ball
bat, causing her death. He then proceeded to a bedroom, where he found Shanon's
purse on a bed. He emptied the contents of the purse and took her money. These
facts clearly support his convictions. See R.C. 2903.01(B) (aggravated felony
murder), 2911.11(A)(1) (aggravated burglary), 2911.01(A)(3) (aggravated
robbery), and 2929.04(A)(7) (capital specifications of felony murder during an
aggravated burglary and an aggravated robbery as the principal offender in the
aggravated murder).

Appellant also argues that "[e]ither the underlying felonies were allied
offenses of similar import, or they were sufficiently separate and distinct that the
killing did not occur `while' * * * [he] was committing those felonies." Again, we
disagree.

The aggravated murder, aggravated robbery, and aggravated burglary
charges are not allied offenses of similar import. Accord State v. Reynolds (1998),
80 Ohio St.3d 670, 681, 687 N.E.2d 1358, 1371. Appellant committed aggravated
burglary when he entered the home occupied by Shanon with the intent to commit
a crime, carrying a ball bat as a weapon. He committed aggravated robbery when
he viciously beat Shanon with the bat and took money from her purse. He
committed aggravated murder when he killed Shanon. As a result, the offenses at
issue were committed separately and with a separate animus.

Additionally, this court has held that the actual robbery need not take place
while the victim was still alive in order to convict for felony murder. See State v.
Rojas (1992), 64 Ohio St.3d 131, 139, 592 N.E.2d 1376, 1384. Specifically, we
have held that " `[t]he term "while" does not indicate * * * that the killing must
occur at the same instant as the [underlying felony], or that the killing must have
28

been caused by [it], but, rather, indicates that the killing must be directly associated
with the [underlying felony] as part of one continuous occurrence * * *.' " State v.
Cooey (1989), 46 Ohio St.3d 20, 23, 544 N.E.2d 895, 903, quoting State v. Cooper
(1977), 52 Ohio St.2d 163, 179-180, 6 O.O.3d 377, 386, 370 N.E.2d 725, 736.
See, also, State v. Biros (1997), 78 Ohio St.3d 426, 450, 678 N.E.2d 891, 911.

Accordingly, we find appellant's nineteenth and twentieth propositions of
law not well taken.
VII

In his sixth and twenty-first propositions of law, appellant complains of
several instances of alleged prosecutorial misconduct which, according to
appellant, deprived him of a fair trial. Specifically, appellant alleges misconduct
that occurred during both the guilt and penalty phases of the trial. We have
carefully reviewed the record pertaining to these matters and have considered all of
appellant's claims of prosecutorial misconduct. We have found no instance of
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 and reliable sentencing determination. Appellant's sixth and
twenty-first propositions of law are overruled.
VIII

In his twenty-second proposition of law, appellant contends that the
prosecution peremptorily excused the only potential African-American juror on the
basis of her race. In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69, 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,
29

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 peremptory
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 provide a race-neutral explanation. Id.
at 445, 653 N.E.2d at 282. A trial court's findings of no discriminatory intent will
not be reversed on appeal absent a determination that it was clearly erroneous. Id.
See, also, Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314.

In the case at bar, the prosecution exercised a peremptory challenge against
prospective juror Arthella Bray, an African-American woman. The defense raised
a Batson claim to the prosecution's use of the peremptory challenge. The trial
court then asked the prosecution to explain the challenge. The prosecution
responded that Bray had expressed reservations about the death penalty, that she
had a son the same age as appellant, that she had made plans (she was closing on a
house and had tickets for a trip to Las Vegas where she was to get married), that
she had a brother who had been prosecuted by the Hamilton County Prosecutor's
Office, and that she felt that there was a race problem between the police and
African-American men.

With respect to the Batson objection, the trial court required the state to
respond and accepted the prosecution's race-neutral explanations for the use of the
peremptory challenge. However, we question whether appellant ever demonstrated
a prima facie case of purposeful discrimination that would have initially required a
response by the prosecution. In any event, the prosecution set forth specific and
race-neutral explanations. Clearly, the trial court's acceptance of the explanations
and finding of no discriminatory intent were not erroneous.
30

Appellant also claims that, because there were only four African-Americans
out of a jury pool of fifty-two, he was denied a fair cross-section of jurors from the
community. Appellant argues that only four African-American jurors out of a pool
of this size is de facto exclusion.
In
Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690,
the United States Supreme Court indicated that the Sixth Amendment guarantee of
a jury trial "contemplates a jury drawn from a fair cross-section of the
community." Id. at 527, 95 S.Ct. at 696, 42 L.Ed.2d at 696. However, the court
held that there is "no requirement that petit juries actually chosen must mirror the
community and reflect the various distinctive groups in the population.

Defendants are not entitled to a jury of any particular composition, but the jury
wheels, pools of names, panels, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and thereby fail to be
reasonably representative thereof." (Citations omitted.) Id. at 538, 95 S.Ct. at 702,
42 L.Ed.2d at 700.

Appellant has failed to show either a Batson violation or that his jury was
not a fair cross-section of the community as required by Taylor. Therefore, we
reject appellant's twenty-second proposition of law.
IX

In his twenty-fourth proposition of law, appellant contends that the trial
court erred in admitting into evidence gruesome photographs. The crime-scene
photos admitted into evidence depict where Shanon was found and that portions of
her head and other parts of her body had been severely beaten. The coroner's
photos depict Shanon's head and bodily injuries, with color photographs showing
her head with the scalp pulled down to illustrate the damage that occurred to her
skull.

In accordance with Evid.R. 403 and 611(A), the admission of photographs is
31

left to the sound discretion of the trial court. State v. Landrum, 53 Ohio St.3d at
121, 559 N.E.2d at 726. In State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR
379, 473 N.E.2d 768, paragraph seven of the syllabus, we held that "[p]roperly
authenticated photographs, even if gruesome, are admissible in a capital
prosecution if relevant and of probative value in assisting the trier of fact to
determine the issues or are illustrative of testimony and other evidence, as long as
the danger of material prejudice to a defendant is outweighed by their probative
value and the photographs are not repetitive or cumulative in number." See, also,
State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267, 273-274.

Here, the trial court meticulously went through each photograph proffered
into evidence and excluded many of them. The photographs admitted into
evidence are neither cumulative nor repetitive. The crime-scene photographs
illustrate the testimony of witnesses regarding how the body was found and that
Shanon had been severely beaten. The coroner's photographs were used to
illustrate the testimony that Shanon suffered massive head and other bodily
injuries. The photographs were particularly probative not only of intent and
purpose but also of "the cause, manner and circumstances of the victim's death."
Biros, 78 Ohio St.3d at 445, 678 N.E.2d at 908. Furthermore, the coroner's
photographs were also probative in that they rebutted appellant's statements that he
had hit Shanon only three times and that a second person had struck her across the
face with a gun.

Although many photographs of Shanon's body were indeed gruesome, the
evidence was highly probative. The value of that evidence clearly outweighed the
danger of any unfair prejudice. Accordingly, we find appellant's twenty-fourth
proposition of law not well taken.
X

In his fifth proposition of law, appellant asserts that it was error for the trial
32

court to readmit the photographs of the victim during the penalty phase. This
proposition can be summarily rejected on the authority of State v. DePew (1988),
38 Ohio St.3d 275, 282-283, 528 N.E.2d 542, 552.
XI

In his twenty-fifth proposition of law, appellant contends that, due to adverse
pretrial publicity, he could not, and did not, receive a fair trial in Hamilton County.
On that basis, appellant claims that the trial court erred in not granting him a
change of venue. In support, appellant points to the May 11, 1998 lead article in
the Cincinnati Enquirer entitled "Taped confession details fatal attack." He also
argues that tapes of statements made by him had been released to and played by the
media. Appellant describes the media coverage as "incessant and exploitative."

" `[A] careful and searching voir dire provides the best test of whether
prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from
the locality.' " (Emphasis sic.) Landrum, 53 Ohio St.3d at 117, 559 N.E.2d at
722, quoting State v. Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 262, 357
N.E.2d 1035, 1051. See, also, State v. Swiger (1966), 5 Ohio St.2d 151, 34 O.O.2d
270, 214 N.E.2d 417, paragraph one of the syllabus; and State v. Lundgren (1995),
73 Ohio St.3d 474, 479, 653 N.E.2d 304, 313-314. A trial court can change venue
"when it appears that a fair and impartial trial cannot be held in the court in which
the action is pending." Crim.R. 18(B). However, " `[a] change of venue rests
largely in the discretion of the trial court, and * * * appellate courts should not
disturb the trial court's [venue] ruling * * * unless it is clearly shown that the trial
court had abused its discretion.' " State v. Maurer, supra, 15 Ohio St.3d at 250, 15
OBR at 388-389, 473 N.E.2d at 780, quoting State v. Fairbanks (1972), 32 Ohio
St.2d 34, 37, 61 O.O.2d 241, 243, 289 N.E.2d 352, 355.

We have reviewed the entire record in this case and there is nothing before
us that supports appellant's allegations that he was denied a fair and impartial trial
33

because of the alleged pretrial publicity. The record indicates that many
prospective jurors who were questioned had obtained some information regarding
the crimes committed by appellant. However, a "careful and searching voir dire,"
Landrum, supra, 53 Ohio St.3d at 117, 559 N.E.2d at 722, was conducted in this
case and supports the conclusion that any pretrial publicity did not lead to an unfair
trial. Appellant has presented no persuasive claim or evidence to disturb the trial
court's conclusion that the impartiality of the members of the jury ultimately
selected was not compromised by any pretrial publicity. In this regard, appellant
has failed to demonstrate that the trial court abused its discretion in denying his
request for a change in venue. Thus, appellant's twenty-fifth proposition of law is
not well taken.
XII

Appellant gave separate tape-recorded statements to the police. Appellant
confessed to killing Shanon, and he also attempted to implicate a second individual
by the name of "Dante." Appellant moved to suppress incriminating statements.
The trial court denied the motion. In his twenty-sixth and twenty-seventh
propositions of law, appellant argues that these statements violated his privilege
against self-incrimination and his right to counsel.

Appellant's claims that his Fifth and Sixth Amendment rights were violated
clearly lack merit. The police fully advised appellant of his Miranda rights and
secured a waiver of those rights prior to obtaining the incriminating statements.
The trial court correctly denied appellant's pretrial motion to suppress, finding that
his statements were voluntarily given and that appellant had effectuated a
voluntary, knowing, and intelligent waiver of his Miranda rights before giving
taped statements to the police.

In addition, we also reject appellant's contention that, because he had been
formally charged and had secured counsel with respect to the offenses committed
34

by him against Sroufe, the police were prevented from questioning him regarding
the murder of Shanon. A similar argument was raised and rejected by this court in
Hill, 73 Ohio St.3d at 446, 653 N.E.2d at 283. Specifically, in Hill, citing McNeil
v. Wisconsin (1991), 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158, we held that
"an accused's Sixth Amendment right is offense-specific. Thus, under McNeil,
appointment of counsel with respect to one offense does not bar police questioning
as to a second uncharged offense." Hill, 73 Ohio St.3d at 446, 653 N.E.2d at 283.

The evidence supports the trial court's decision to admit appellant's
confessions as freely and voluntarily made. Further, the trial court's determination
was lawful in all respects. See DePew, 38 Ohio St.3d at 277, 528 N.E.2d at 547.
XIII

In his twenty-eighth proposition of law, appellant challenges the death-
qualification process used during jury selection. Appellant argues that the trial
court improperly used the standard set forth in Wainwright v. Witt (1985), 469 U.S.
412, 105 S.Ct. 844, 83 L.Ed.2d 841, to death-qualify the jury. Appellant's
argument is misplaced.
In
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 other grounds (1985),
474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452, this court held that, in accordance
with Witt, "[t]he proper standard for determining when a prospective juror may be
excluded for cause based on his views on capital punishment is whether the juror's
views would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and oath."

Furthermore, we have no reason to question the trial court's decision to
excuse prospective jurors Michael Kelly, Joyce Radford, Judith Jump, and Gloria
Gosser. Their removal was warranted, since they clearly and unequivocally stated
to the court that they would be unable to perform their duties as jurors. See,
35

generally, State v. Moore (1998), 81 Ohio St.3d 22, 27, 689 N.E.2d 1, 8; Rogers,
supra, paragraph three of the syllabus. Appellant's twenty-eighth proposition of
law is overruled.
XIV

In his twenty-third proposition of law, appellant complains of various
instances of alleged ineffectiveness of counsel which, according to appellant,
occurred during the guilt and penalty phases of the trial court proceedings. We
have considered all instances of alleged ineffectiveness of trial counsel alleged by
appellant, and we find that appellant has failed to satisfy his burden of establishing
ineffective assistance under the standards set forth in Strickland, supra, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Appellant's twenty-third proposition of law
is not well taken.
XV

In his seventh and eighth propositions of law, appellant challenges aspects of
the trial court's penalty-phase jury instructions. However, we have reviewed the
jury instructions as a whole and find appellant's objections not persuasive.
Accordingly, we reject appellant's seventh and eighth propositions of law.
XVI

In his eleventh proposition of law, appellant argues that the trial court erred
in its written sentencing opinion. However, any errors in the trial court's
sentencing opinion can be readily cured by our independent review of appellant's
death sentence. See, generally, Lott, 51 Ohio St.3d at 170-173, 555 N.E.2d at 304-
307. See, also, Reynolds, 80 Ohio St.3d at 684-685, 687 N.E.2d at 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. Appellant's eleventh
proposition of law is without merit.
36

XVII

In his twenty-ninth proposition of law, appellant argues that the cumulative
effect of errors at the trial court level deprived him of a fair trial and reliable
sentencing determination. We reject appellant's contention in this regard.
Appellant received a fair trial and a fair and reliable sentencing determination, and
appellant's twenty-ninth proposition of law is not well taken.
XVIII

In his ninth proposition of law, Johnson argues that Ohio's capital
sentencing scheme violates the United States Constitution and that procedures that
allow direct appeal to this court should be reexamined. This court has examined
and disposed of similar issues presented by appellant here. See State v. Raglin
(1998), 83 Ohio St.3d 253, 261-262, 699 N.E.2d 482, 490. Thus, we summarily
reject appellant's ninth proposition of law, including the arguments advanced
under subsections (A) through (I).
XIX

In his tenth proposition of law, appellant argues that he should be entitled to
twelve rather than six peremptory challenges. This proposition can be summarily
rejected. 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.
XX

We further reject appellant's twelfth proposition of law (see Appendix) on
the authority of State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509
N.E.2d 383, paragraph one of the syllabus. In addition, the matter set forth in
appellant's sixteenth proposition of law concerning the appropriateness of his
death sentence is addressed in our discussion in Part XXI, infra.
XXI

Having considered appellant's propositions of law, we must now
37

independently review the death sentence for appropriateness and proportionality.
The record clearly supports the finding that appellant was the principal and sole
offender in the commission of this aggravated murder while committing an
aggravated burglary and aggravated robbery.

In mitigation, appellant presented the testimony of his grandmother and
other witnesses. Appellant presented evidence that his parents never married, that
they lived apart, that his mother became addicted to drugs as early as age nine, and
that she gave birth to appellant when she was just fifteen years old. Because
appellant's mother did not take care of him, and because she continued to pursue
her drug habit, appellant lived most of his childhood with his grandmother. When
appellant was three years old, he spent approximately a year in a foster home. Like
his mother, appellant's father was also a drug addict. Appellant's mother and
father both spent time in prison. Appellant never had a male role model and his
environment was not nurturing. Appellant had some contact with his mother, but
mostly she would promise to visit him and not show up. She has never functioned
as a mother and at the time of trial was still involved with drugs.

Testimony also revealed that appellant had trouble in the school setting. He
was unable to sit still and was placed on Ritalin for a time. He was eventually put
into a slow learners' class and he did not finish high school.

During his childhood, appellant committed numerous criminal offenses. He
was eventually placed with the Department of Youth Services. Various attempts
were made by persons to help appellant, including the Big Brothers Program, his
grandmother, and others. A psychologist told appellant's grandmother that
appellant would do mean things because he loved his mother but failed to get
motherly love in return. Appellant's grandmother asked that his life be spared.

Dr. Hawkins, a court-appointed psychiatrist, also testified in mitigation.
Hawkins stated that during his interviews with appellant, appellant was concerned
38

about protecting someone named Dante. Appellant maintained his innocence and
was not remorseful. The testing performed by Hawkins indicated that appellant
thinks very highly of himself and that his self-image is based on his success in
conning the world around him. He has a full-scale IQ of eighty-three, which is in
the low average range. Hawkins diagnosed appellant as having a chronic drug
abuse problem and an antisocial personality disorder. Hawkins stated that
appellant was not insane and that nothing indicated that he had any brain
abnormality.

Appellant gave an unsworn statement to the jury. He stated that he was
sorry for what had happened and he expressed sympathy for Shanon's family. He
asked that his life be spared so that he could be a "daddy" to his son, who was born
just prior to this incident.

Upon a review of the evidence in mitigation, it appears that appellant had a
chaotic and troubled childhood. We find that appellant's history, character, and
background, and, specifically, his personality disorder and drug dependence, are
entitled to some, but very little, weight in mitigation. We have also considered the
youth of the offender (appellant was nineteen years old at the time of the offense),
the fact that he expressed some remorse, and, in addition, the nature and
circumstances of the offenses. These factors are all entitled to some weight in
mitigation.

On the other side of the scale we weigh the two specifications of aggravating
circumstances, proven beyond a reasonable doubt, that appellant was found guilty
of committing. During the course of an aggravated murder, appellant committed
an aggravated burglary and an aggravated robbery. After deep thought and review,
we find that the aggravating circumstances easily outweigh the mitigating factors
beyond a reasonable doubt. The mitigating factors presented simply do not
approach any level of significance when compared to the aggravating
39

circumstances in this case.

Finally, we have undertaken a comparison of the sentence imposed in this
case to those in which we have previously affirmed the death penalty. We find that
appellant's death sentence is neither excessive nor disproportionate to the penalty
imposed in similar cases. See, e.g., State v. Holloway (1988), 38 Ohio St.3d 239,
527 N.E.2d 831; State v. Murphy (1992), 65 Ohio St.3d 554, 605 N.E.2d 884; State
v. Slagle (1992), 65 Ohio St.3d 597, 605 N.E.2d 916; and State v. Spivey (1998),
81 Ohio St.3d 405, 692 N.E.2d 151. Indeed, this senseless, brutal, and
incomprehensible act of inhumanity defies the imagination and is unquestionably
the type of crime for which the General Assembly intended that a sentence of death
could be invoked.

For all the foregoing reasons, the judgment of the court of common pleas is
affirmed. We affirm appellant's convictions and sentences, including the sentence
of death.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.

MOYER, C.J., and LUNDBERG STRATTON, J., concur separately.

COOK, J., concurs in judgment.
__________________

MOYER, C.J., concurring. I concur in the decision and the opinion of the
majority. I write separately to bring into sharper focus certain aspects of the trial
judge's conduct that were inappropriate. The purpose of this concurrence is to
dispel any impression that, because we have held that the trial court's conduct was
nonprejudicial in this case where the evidence of guilt was overwhelming, such
conduct in another case may not be prejudicial.
40

The foundation of a fair trial is that the court conducts itself in a fair and
impartial manner. As the majority observed, " `[a]n independent and honorable
judiciary is indispensable to justice in our society.' " (Quoting Canon 1 of the
Code of Judicial Conduct.) Judges must not only be fair and impartial, they must
also avoid conduct that would create the perception that they are not fair and
impartial. I agree with the majority that the trial judge's conduct here did not
prejudice the defendant, but that the judge allowed his impartiality to be
questioned.

No one would doubt that the trial judge was acting from a sense of
responsibility and perhaps kindness when he drove juror Miller to her car. There
also can be no question that there were alternate means by which the trial judge
could have and should have demonstrated his concern for the well-being of juror
Miller.

I agree with the majority opinion that the trial judge's conduct was improper
in the following respects: (1) he drove the juror to her car, rather than providing an
alternate means for her to safely arrive at her destination; (2) he failed to inform
counsel the following morning of his conduct the prior evening; (3) he offered to
remove the juror if defense counsel requested it, and then denied defense counsel's
motion to remove the juror; and (4) when defense counsel requested a hearing to
examine the juror, the trial judge presided over the hearing at which his conduct
was in question.

It is the fourth aspect of the trial judge's conduct that I believe should be
more forcefully and unequivocally disapproved than the majority does in its
opinion. When defense counsel requested a hearing to determine whether there
had been any discussion between the trial judge and juror Miller during their ride
in the trial judge's car, the trial judge should have either remained outside his
chambers or should have requested another judge of the Hamilton County
41

Common Pleas Court to conduct the brief hearing. No juror should be placed in
the position that juror Miller was placed by the trial judge. As the transcript
reflects, the trial court began the hearing by explaining the circumstances of his
offer of a ride. He then asked the juror to agree with him that they did not talk
about the case. When defense counsel had his opportunity to inquire of the juror,
the trial judge answered three questions for her and expanded upon two of her
answers, thereby testing the presumption that a trial judge conducts himself or
herself pursuant to the rule and the law.

The cases cited by the majority setting forth the procedure and applicable
law that a court is to follow when an allegation is made that an improper
communication has occurred with a juror all derive from contact with a juror by
someone other than the judge who is conducting the trial. Whether one follows the
rule that the burden is upon the state to prove juror prejudice or to deny a
presumption of prejudice, surely a hearing, however brief, to determine the
circumstances of extended private contact between a judge and juror should be
conducted by someone other than the judge whose conduct resulted in the
circumstance being questioned. We should state such a rule of law in the syllabus
of this case.

LUNDBERG STRATTON, J., concurs in the foregoing concurring opinion.
APPENDIX

"Proposition of Law No. 1: It is inimical to the rights of the accused in a
capital case for the trial judge, during the guilt/innocence phase of the proceedings,
to have deliberate, private, personal contact with one of the jurors, not in the
presence of the accused or counsel for both parties, in violation of the right of the
accused to due process of law under the Fourteenth Amendment to the Constitution
of the United States and Art. I Sec[tion] 16 of the Ohio Constitution, and, where
the death sentence is ultimately imposed by that juror, and by that judge, such
42

improper contact between judge and juror also violates the Eighth Amendment of
the United States Constitution and Art. I Sec[tion] 9 of the Ohio Constitution.

"Proposition of Law No. 2: Where, in the middle of a capital trial, a
question arises as to whether the trial court and/or a juror has committed
misconduct, it is reversible error and a denial of due process of law, secured to the
accused by the Fourteenth Amendment to the United States Constitution and by
Art. I Sec[tion] 16 of the Ohio Constitution, for the trial court whose possible
misconduct is the issue, to itself preside over the proceedings required by law to
determine whether such misconduct has occurred, and, if so, whether it has been
prejudicial to the accused.

"Proposition of Law No. 3: Where, in the middle of a capital trial, a
question arises as to whether the trial court and/or a juror has committed
misconduct, it is a denial of due process under the Fourteenth Amendment to the
Constitution of the United States, and Art. I Sec[tion] 16 of the Ohio Constitution,
for the trial judge, whose possible misconduct is the issue, conducting an inquiry as
to such matters, to conduct that inquiry in such a manner that the juror is
essentially informed by the trial court as to the answers that will insulate them both
from a finding of misconduct, and which hearing does not establish whether the
accused has been prejudiced by the improper private contact between his judge and
one of his jurors.

"Proposition of Law No. 4: Where, during a hearing in the middle of a
capital trial concerning whether the trial court and/or a juror had committed
misconduct, presided over by the trial court, counsel for the accused does not
interrogate the juror with sufficient vigor so as to demonstrate each and every
conversation occurring between the trial court and the juror during their prolonged
personal contact, so as to either confirm or dispel whether or not the misconduct
was prejudicial to the accused, the accused has been denied the right to the
43

effective assistance of counsel under the 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. 5: In a capital prosecution for aggravated murder,
the killing itself is not an aggravating circumstance, and it is error inimical to the
right to due process of law under the Fourteenth Amendment to the U[nited]
S[tates] Constitution and Art. I Sec[tion] 16 of the Ohio Constitution, as well as the
Eighth Amendment to the U[nited] S[tates] Constitution and Art. I Sec[tion] 9 of
the Ohio Constitution, for the trial court to admit, at the penalty phase of the trial,
evidence including gruesome photographs of the deceased, under the pretext that
the killing itself, admittedly not an aggravating circumstance, is nevertheless an
essential element of the felony-murder aggravating circumstances of which the
offender was convicted.

"Proposition of Law No. 6: 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, contains
inflammatory remarks and invective against the accused and his counsel, a death
sentence based on a jury verdict following such arguments is plain error and
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. 7: Where a death sentence is imposed after the trial
court initially gives a correct instruction as to the definition of mitigating factors,
but, after the conclusion of the instructions, thereafter at the request of the state,
expressly instructs the jury that the terms `fairness' and `mercy' are to be excised
from the definition of mitigating factors, over defense objections, the Eighth
Amendment rights of the accused, as well as his Fourteenth Amendment right to
due process of law, have been violated, requiring reversal of the death sentence.
44

"Proposition of Law No. 8: An instruction to a jury in the penalty phase of a
capital trial to the effect that it must consider the death sentence before considering
any life sentence option renders the death sentence imposed in violation of the
Eighth Amendment rights of the accused, as well as the rights secured to him by
O[hio] Const[itution] Art. I Sec[tion] 9.

"Proposition of Law No. 9: 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
and to the equal protection of the laws, and also violating the concomitant
provisions of the Ohio Constitution.
"[Sub-Proposition of Law 9(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 9(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 9(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 ostensible [sic] 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.
"[Sub-Proposition of Law 9(D):] The requirement that a jury must
45

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
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. [Emphasis sic.]
"[Sub-Proposition of Law 9(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 9(F):] The provisions [sic] 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 9(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 sufficient 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 9(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
46

capital statutes unconstitutional in that they encourage, rather than prevent, the
arbitrary and capricious imposition of the penalty o[f] death.
"[Sub-Proposition of Law 9(I):] The amendments to the Ohio Constitution
occasioned by the passage of Issue One, and the amendments to the Revised 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[nited] S[tates] Constitution, and to due process of law and the equal protection
of the laws secured to them by the Fourteenth Amendment to the U[nited] S[tates]
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. 10: The increased need for reliability required in
capital cases by the Ohio and federal Constitutions mandates the granting to the
defense [of] more than six peremptory challenges.

"Proposition of Law No. 11: The Eighth Amendment requirement of
reliability in capital sentencing is violated where the sentencing opinion of the trial
court fails to state the reasons why aggravation outweighs mitigation, and relies
upon the nature and circumstances of the offense as an aggravating circumstance,
as well as other nonstatutory aggravating circumstances.

"Proposition of Law No. 12: Under the Ohio capital statutes, for purposes of
proportionality review, death sentences must be compared with all other cases
within the jurisdiction in which the death sentence was imposed, as well as those
capital cases in which it was not imposed.

"Proposition of Law No. 13: It is reversible error inimical to the right to the
fundamentally fair trial guaranteed by the Due Process Clauses of the Fourteenth
Amendment to the U[nited] S[tates] Constitution and Art. I Sec[tion] 16 of the
Ohio Constitution for the trial court to deny a motion for separate trials for two
47

series of offenses where prejudicial evidence as to one series of offenses is not
admissible in the trial of the other series of offenses.

"Proposition of Law No. 14: The admission of opinion evidence by police
officers to the effect that suspects other than the defendant are not guilty of the
offense being tried is prejudicial plain error violative of the defendant's right to
due process of law under the Fourteenth Amendment to the U[nited] S[tates]
Constitution, and Art. I Sec[tion] 16 of the Ohio Constitution.

"Proposition of Law No. 15: It is prejudicial, plain error for a trial court to
permit prejudicial hearsay evidence in a capital trial, in violation of Ohio
evidentiary rules and in violation of the right of confrontation secured to the
accused by the Sixth and Fourteenth Amendments to the U[nited] S[tates]
Constitution, and Art. I Sec[tion] 10 of the Ohio Constitution.

"Proposition of Law No. 16: Where the state fails to establish beyond a
reasonable doubt that aggravation outweighs mitigation beyond a reasonable
doubt, the death penalty is absolutely precluded, and the imposition of the death
sentence under such circumstances constitutes a violation of the offender's
constitutional right to be free of cruel and unusual punishment and also his right to
due process of law.

"Proposition of Law No. 17: Where there is slight asportation, which is
merely incidental to the underlying crime, and committed without a separate
animus, a conviction of kidnapping is contrary to law and violates the Due Process
Clause of the Fourteenth Amendment and Art. I Sec[tion] 16 of the Ohio
Constitution.

"Proposition of Law No. 18: Proof that the defendant grabbed the victim
momentarily, and dragged her a few feet, and asked her for money only after her
release from his grasp, is legally insufficient to support convictions for robbery and
kidnapping, but support, at most, a misdemeanor assault conviction.
48

"Proposition of Law No. 19: Where the state fails to prove beyond a
reasonable doubt the essential elements of aggravated murder, aggravated robbery,
and aggravated burglary, or where there is no separate animus to the burglary and
robbery charge, the defendant's conviction for felony specifications to aggravated
murder, as well as the underlying felonies of aggravated robbery and aggravated
burglary 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. 20: Convictions for aggravated murder, aggravated
burglary and aggravated robbery which are contrary to the manifest weight of the
evidence must be reversed, as contrary to the right of the accused to due process of
law under the Ohio and federal Constitutions.

"Proposition of Law No. 21: Egregious prosecutorial misconduct during the
guilt phase of a capital prosecution prejudices the due process right of the accused
to a fair trial under the Fourteenth Amendment to the U[nited] S[tates]
Constitution, and Art. I Sec[tion] 16 of the Ohio Constitution, requiring reversal of
his conviction and a new trial.

"Proposition of Law No. 22: It is constitutionally impermissible under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment to the
U[nited] S[tates] 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. 23: Where the defendant in a capital murder trial is
deprived of the effective assistance of counsel at both the guilt/innocence and
penalty phases of his trial, his conviction and death sentence offend the Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, and their
counterparts in the Ohio Constitution, and must be reversed, and a new trial
granted.

"Proposition of Law No. 24: A conviction and death sentence for
49

aggravated murder must be reversed as violations of the fundamental fairness
required by the Due Process Clause of the Fourteenth Amendment, and the Sixth
Amendment of the right to trial before a fair and impartial jury, as well as the
Eighth Amendment prohibition against cruel and unusual punishment, where the
conviction and death sentence were obtained through use of repetitive, cumulative
photographs of the corpse of the deceased, the net prejudicial effect of which far
outweighed their probative value.

"Proposition of Law No. 25: Where the right of a defendant in a capital
criminal case to a fair trial is prejudiced by excessive and grossly prejudicial
new[s] media accounts, the Due Process Clause of the Fourteenth Amendment
requires reversal, and, where the sentence imposed by the jury is death, the Eighth
Amendment rights of the accused have been violated as well.

"Proposition of Law No. 26: Convictions obtained through the use of
statements obtained in violation of the defendant's privilege against self-
incrimination, secured to him by the Fifth and Fourteenth Amendments to the
Constitution of the United States, and Art. I Sec[tion] 10 of the Ohio Constitution,
must be reversed and remanded for new trials at which such statements are
excluded from evidence.

"Proposition of Law No. 27: Convictions obtained through the use of
statements obtained in violation of the defendant's right to counsel secured to him
by the Sixth and Fourteenth Amendments to the Constitution of the United States,
and Art. I Sec[tion] 10 of the Ohio Constitution, must be reversed and remanded
for new trials at which such statements are excluded from evidence.

"Proposition of Law No. 28: 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
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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. 29: 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."
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