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

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

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

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State v. Jalowiec, 91 Ohio St.3d 220, 2001-Ohio-26.]

THE STATE OF OHIO, APPELLEE, v. JALOWIEC, APPELLANT.
[Cite as State v. Jalowiec (2001), 91 Ohio St.3d 220.]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
(No. 98-1074 -- Submitted November 14, 2000 -- Decided April 4, 2001.)
APPEAL from the Court of Appeals for Lorain County, No. 96CA006445.
__________________

PFEIFER, J. On the morning of January 19, 1994, a partially clad male
body was found in Woodland Cemetery in Cleveland. Two weeks later, the body
was identified as that of Ronald Lally of Elyria. Over a year later, the grand jury
indicted defendant-appellant, Stanley E. Jalowiec, for aggravated murder, with
firearm and death-penalty specifications. The indictment alleged that Jalowiec
purposely killed Lally to prevent him from testifying in criminal proceedings,
which had been scheduled to begin on January 19, 1994. Subsequently, a jury
found Jalowiec guilty as charged, and he was sentenced to death.

In June 1993, Ron Lally contacted the Elyria police to volunteer as a
police informant. Lally signed an agreement to become a confidential informant
for the Elyria police and agreed to make controlled drug buys. On June 7, 1993,
with the assistance of Officer Scott Ashley and Detective Alan Leiby, Lally made
a controlled drug buy of crack cocaine from Danny Smith and his father Raymond
Smith while wired with a hidden monitoring device. As a result of the controlled
buy, police arrested both Raymond Smith and Danny Smith in August 1993 and
charged them with aggravated drug trafficking. Both cases were eventually set
for trial on January 19, 1994.

On January 18, 1994, the evening before the murder, Brian Howington
and Jalowiec went to several bars in downtown Elyria. (Howington knew
Jalowiec because Jalowiec used to visit Howington's aunt, Joann Corrine Fike,

SUPREME COURT OF OHIO
when Howington lived with her.) Jalowiec then asked Howington to accompany
him to a friend's house on Middle Avenue. There, Howington met Ron Lally and
his roommate, and the four of them smoked crack cocaine. Around 11:30 p.m.,
Jalowiec, Howington, and Lally went to Fike's house and "[s]hot pool, partied
some more."

About an hour later, Jalowiec got a page and asked Howington if he could
borrow Fike's car, a Chrysler LeBaron convertible. Though Howington was
hesitant, he relented after Jalowiec persisted. Around 1:00 a.m., Jalowiec and
Lally left Fike's house in the LeBaron. The next time Howington saw the car was
around 5:00 a.m. when Jalowiec and Raymond Smith returned it to Fike's
apartment. At that time, the car was covered with ice, and Jalowiec and Smith
told Howington that the car had been washed. Fike testified that Jalowiec told her
that he had washed the car because there was blood on it as a result of a fight he
had had with someone at Mom's Open Kitchen.

Sharon Hopkins testified that she was at Razzle's bar in Elyria one night
in January 1994 with her brother, Terry Hopkins, Raymond Smith, Danny Smith,
Michael Smith (another son of Raymond), and several others, including Jalowiec.
The group stayed at Razzle's until it closed and then, without Jalowiec, went to
eat at Mom's Open Kitchen until around 2:45-3:00 a.m.

After leaving Mom's, Sharon Hopkins rode in Danny Smith's car with
several people including Raymond, Danny, and Michael Smith. They traveled on
Middle Avenue past the railroad tracks just outside the Elyria city limits and
dropped Raymond and Michael Smith off by a wooded area. They drove back
over the tracks and pulled into a parking lot. Approximately five to ten minutes
later, a convertible drove over the tracks to where they had dropped off Raymond
and Michael Smith. Danny Smith said, "That is it."

Several minutes later, the convertible drove by again heading toward
town, and Danny Smith's car began to follow it. Shortly thereafter, Danny Smith
2

January Term, 2001
signaled the convertible to pull over and ducked down in the front passenger seat
while telling Sharon Hopkins to get out and ask the people in the convertible
whether they had picked up Michael Smith. Sharon Hopkins saw Jalowiec get out
of the driver's seat of the convertible. Jalowiec responded that Michael Smith
was in the car. Although Sharon Hopkins could not see the other occupants, she
could tell that there were four people inside the convertible. Danny Smith then
drove Sharon Hopkins home.

Later that morning, at around 3:30-4:00 a.m., Danny Smith arrived back at
his apartment. Terry Hopkins arrived a little later and noticed that Danny Smith
was "nervous and said he was feeling sick to his stomach." Danny Smith told
Hopkins that "they had done it, they did it." Hopkins then went back to his
sister's apartment across the street from Danny Smith's apartment. Later,
Hopkins visited Danny Smith again and also saw Jalowiec, Raymond Smith, and
Michael Smith. Jalowiec said, "They stomped him and ran him over with a car."
The others there indicated that "they shot him and cut him." According to
Hopkins, they were "[k]ind of like bragging about it." Danny Smith told Hopkins
they wanted this person killed because he had worn "a wire on him on a drug
sale."

At approximately 9:55 a.m. on January 19, 1994, Cleveland homicide
detective Michael Beaman was summoned to Woodland Cemetery. A male body
had been found on a cemetery roadway. Some of the victim's clothing was
nearby in a snow bank. There was no identification on or near the victim and
police did not learn the identity of the victim, Lally, until a few weeks later.

Dr. Heather Raaf, a forensic pathologist with the Cuyahoga County
Coroner's Office, performed the autopsy on Lally. Dr. Raaf testified that teeth in
Lally's mouth had been knocked out by a gunshot. Dr. Raaf estimated that Lally
had sustained at least eleven blows to his head and that his injuries were
consistent with being stomped or struck by a vehicle several times. Dr. Raaf
3

SUPREME COURT OF OHIO
determined that Lally's death resulted from a gunshot wound to the head and
multiple blunt impacts to the head.

The drug trafficking cases against Danny and Raymond Smith were
subsequently dismissed because Lally, the primary witness in both cases, was
dead.

After an extensive police investigation, the grand jury indicted Jalowiec
on March 8, 1995, for aggravated murder with a firearms specification. In
addition, a death-penalty specification alleged that Jalowiec purposely killed Lally
in order to prevent his testimony as a witness in a criminal proceeding.

At trial, the key witness for the prosecution was Michael Smith, son of
Raymond Smith1 and brother of Danny Smith. Michael Smith contacted
Detective Leiby in April 1994 because he was bothered about having witnessed
the Lally murder. During Raymond Smith's murder trial, Michael Smith had
been unavailable to testify, and the prosecution proffered testimony from him that
had been elicited in a deposition. State v. Smith (2000), 87 Ohio St.3d 424, 428,
721 N.E.2d 93, 102. However, at Jalowiec's trial, Michael Smith testified as a
prosecution witness.

Michael Smith testified that, purely by chance, he had met his father and
brother at Mom's Open Kitchen around 2:30 a.m. on the night of the murder.
Raymond Smith had made a phone call and indicated to Michael Smith that he
was going to leave. Michael agreed to go with his father and left with him and his
brother, Danny Smith. The Smiths and Danny Smith's girlfriend got in Danny
Smith's car and both Raymond and Michael Smith were dropped off on Middle
Avenue. Raymond and Michael waited outside in the cold, even though Michael
had no idea what they were waiting for. The LeBaron driven by Jalowiec with
Lally as a passenger pulled up to them and stopped. Raymond Smith told Lally to

1. We affirmed the death sentence of Raymond Smith in State v. Smith (2000), 87 Ohio St.3d 424,
721 N.E.2d 93.
4

January Term, 2001
get in the back seat, and Michael Smith got in the back seat on the driver's side.
Raymond Smith sat in the passenger side front seat and made introductions.

Shortly thereafter, Raymond Smith brandished a gun and told Lally,
"Don't make any sudden moves." The group stopped to buy gas, beer, and
cigarettes, then drove on Route 2 toward Cleveland. Raymond Smith asked Lally,
"Why did you set my son up?" Lally denied doing so, but appeared to be scared.
Smith then told Lally, "We are going to give you some money, get you a bus
ticket, you are going to get out of town."

During the trip into Cleveland, all four men were smoking crack cocaine.
Lally agreed to leave town, and they drove to East Cleveland to buy some crack
for Lally's trip. However, they saw police cars and fire trucks in the
neighborhood and decided to drive back towards downtown Cleveland. As they
drove, Raymond Smith directed Jalowiec to pull the LeBaron into a Cleveland
cemetery.

Inside the cemetery, Raymond Smith got out of the car, put the gun to
Lally's face, and ordered him out of the car. He then told Lally, "You will never
snitch on nobody again." Michael Smith heard a gunshot and then heard Lally
exclaim: "You shot me in my head, you shot me in my head." Raymond then told
Michael and Jalowiec to get out and assist him. Jalowiec got out of the car, but
Michael remained inside the car and did not look out. He heard "thumps like
hitting" and heard Lally plead, "I won't tell nobody, please don't kill me, please
don't kill me."

Michael Smith testified that after about two to five minutes of quiet, he
could tell that the trunk had been opened and that his father and Jalowiec were
trying to put something in the trunk. He heard someone say, "He ain't going to
fit, * * * he is too stiff," then he heard something drop. Then Raymond Smith and
Jalowiec got back in the car, and Jalowiec started the car and put it in reverse.
According to Michael Smith, when Lally's body stopped the car from going any
5

SUPREME COURT OF OHIO
further, Jalowiec drove forward a short distance and then put the car into reverse.
Michael Smith could feel the car hit something. Jalowiec did this three times and
then drove out of the cemetery.

As they drove from the cemetery, Raymond Smith began arguing with
Michael Smith: "This is for your brother, why didn't you get out and help?"
While driving back to Elyria, Raymond took his gun apart and threw it out the
window, piece by piece. Upon arriving in Elyria, they dropped Michael Smith off
at Danny Smith's apartment.

Linda Luke, a forensic serologist in the coroner's office, conducted tests
on stains found on the trunk liner of the Chrysler LeBaron. Luke testified that the
DNA in Lally's blood sample was consistent with the blood found on the trunk
liner.

After deliberation, the jury found Jalowiec guilty as charged.

At the mitigation hearing, Jalowiec made an unsworn statement. Other
witnesses also testified on Jalowiec's behalf, including his former live-in
girlfriend and several family members, including both of his parents. The
prosecution presented seven witnesses in rebuttal.

The jury recommended death, and the court sentenced Jalowiec to death.
The court of appeals affirmed the convictions and death sentence. The cause is
now before this court upon an appeal as of right.

Jalowiec has raised thirteen propositions of law. (See appendix.) We
have reviewed each and have determined that none justifies reversal of appellant's
conviction for aggravated murder. We have also independently weighed the
aggravating circumstance against the mitigating factors and reviewed the death
penalty for appropriateness and proportionality. For the reasons that follow, we
affirm appellant's convictions and death sentence.
VOIR DIRE ISSUES
6

January Term, 2001

Defendant in Shackles. In Proposition of Law IV, Jalowiec argues that his
conviction must be reversed because the trial court failed to remedy or address the
issue of prospective jurors' viewing him in shackles during voir dire. Jalowiec
relies on Holbrook v. Flynn (1986), 475 U.S. 560, 568-569, 106 S.Ct. 1340, 1345-
1346, 89 L.Ed.2d 525, 534, for the proposition that due process is violated when
jurors view restraints on a defendant absent some essential state interest. Jalowiec
further asserts that both the court and the prosecutor displayed a "cavalier
attitude" to the incident.

Defense counsel brought the matter to the court's attention at the
beginning of voir dire, stating, "[T]here were several potential jurors standing in
the hall going to and out of the restrooms and they did see Mr. Jalowiec
handcuffed." Defense counsel moved for a mistrial. The prosecutor suggested
that some sort of voir dire should take place before the court ruled on the motion.
The trial court overruled the mistrial motion and told defense counsel: "Certainly
you have the opportunity to inquire of the prospective jurors as to whether or not
they have been prejudiced because of this, okay?"

In his original brief to the court of appeals, Jalowiec did not raise this
issue. Subsequently, defense counsel filed a lengthier brief to proffer issues they
would have raised had the court granted their motion to exceed the page limit.
The court of appeals ordered it stricken. Within the stricken brief, Jalowiec raised
the issue that prospective jurors observed shackles on him. We conclude that this
issue was waived because it was not properly raised before the court of appeals.
State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364,
paragraph two of the syllabus.

Additionally, we conclude that Jalowiec has failed to demonstrate
prejudicial error. Defense counsel asserted that some prospective jurors saw
Jalowiec handcuffed, but never followed up on it. The court suggested that
7

SUPREME COURT OF OHIO
defense counsel use voir dire to discover any possible prejudice, but counsel
failed to do so. Thus, no prejudice is demonstrated on the record.

Even if some potential jurors saw Jalowiec handcuffed on the first day of
voir dire, the danger of prejudice to Jalowiec was slight, since the juror's view of
Jalowiec in custody was brief, inadvertent, and outside the courtroom. See State
v. Kidder (1987), 32 Ohio St.3d 279, 285-286, 513 N.E.2d 311, 318; and State v.
Landrum (1990), 53 Ohio St.3d 107, 118, 559 N.E.2d 710, 724. See, also, State v.
Richey (1992), 64 Ohio St.3d 353, 358, 595 N.E.2d 915, 921. Finally, nothing in
the record suggests that the court or prosecutor treated this matter with a
"cavalier attitude." Accordingly, we reject Proposition of Law IV.

Improper Exclusion of Jurors. In Proposition of Law VI, Jalowiec argues
that he was deprived of a fair trial and an impartial jury because several jurors
were improperly excused based on their views of the death penalty. Specifically,
Jalowiec claims that the court improperly excluded prospective jurors Porter,
Eubanks, Kowalski, Fobell, and Buck.

In the court of appeals, Jalowiec raised the issue of improper excusal only
for prospective jurors Porter and Eubanks. Therefore, Jalowiec has waived
claims of error concerning Kowalski, Fobell, and Buck. Williams, 51 Ohio St.2d
112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.

Prospective juror Porter questioned the ability of anyone to impose a death
sentence, based on the Bible. She first indicated that she could not consider death
as a sentencing option. Porter later said several times, unequivocally, that she
could vote for a death sentence but then said she could not sign a death warrant.
The trial court did not abuse its discretion in excusing Porter, since her views on
the death penalty would have substantially impaired her performance as a juror.
State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984,
paragraph three of the syllabus.
8

January Term, 2001

Prospective juror Eubanks initially indicated that he could "probably" sign
a death verdict. Upon further questioning, he equivocated, then indicated that his
death-penalty views would substantially impair his ability to fairly consider a
death sentence, then equivocated again. The excusal for cause of prospective
juror Eubanks was not an abuse of discretion.

Based on the foregoing, we reject Proposition of Law VI.
GUILT-PHASE ISSUES

Coconspirators' Extrajudicial Statements. In the first part of Proposition
of Law I, Jalowiec argues that under Bruton v. United States (1968), 391 U.S.
123, 88 S.Ct. 1620, 20 L.Ed.2d 476, he was prejudiced and denied his right to
confront and cross-examine witnesses when the prosecutor mentioned during
opening statement that Raymond Smith had implicated Jalowiec in the Lally
murder. While Jalowiec concedes that counsel failed to object to the statement,
he asserts that it was plain error under Bruton.

Jalowiec's failure to object waived all but plain error. See, e.g., State v.
Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916, 925. In addition, the
issue was not raised before the court of appeals. Williams, 51 Ohio St.2d 112, 5
O.O.3d 98, 364 N.E.2d 1364.

The prosecutor's brief reference to Raymond Smith's statement did not
constitute plain error. It does not appear that "but for the error, the outcome of the
trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91,
7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. The trial court
instructed the jury at the outset that opening statements are not evidence. Unlike
the situation in Bruton, the statement in issue was not elicited during testimony.
The remark, which was not even objected to, did not deny Jalowiec a fair trial.
See State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O 3d 362, 373 N.E.2d 1244,
paragraph one of the syllabus. Accordingly, we reject this portion of Proposition
of Law I.
9

SUPREME COURT OF OHIO

Under Proposition of Law II, Jalowiec asserts that the state failed to make
a prima facie case of a conspiracy in the Lally murder independent of out-of-court
statements by alleged coconspirators. Therefore, he contends that the court erred
in failing to exclude, over defense objections, several out-of-court statements
made by Danny Smith.

The trial court overruled Jalowiec's objections, based on Evid.R.
801(D)(2), which provides that hearsay does not include "a statement by a co-
conspirator of a party during the course and in furtherance of the conspiracy upon
independent proof of the conspiracy." We recognized in State v. Carter (1995),
72 Ohio St.3d 545, 651 N.E.2d 965, paragraph three of the syllabus, that "[t]he
statement of a co-conspirator is not admissible pursuant to Evid.R. 801(D)(2)(e)
until the proponent of the statement has made a prima facie showing of the
existence of the conspiracy by independent proof." See, also, State v. Lindsey
(2000), 87 Ohio St.3d 479, 481, 721 N.E.2d 995, 1000-1001.

Independent evidence established that a conspiracy to kill Lally existed on
the night of his murder based on the testimony of Michael Smith and on Sharon
Hopkins's and Howington's testimony that Jalowiec arranged to get Lally in the
car with Raymond Smith. Sharon Hopkins testified about events that occurred
within hours of the murder, including where she was with Raymond, Danny, and
Michael Smith, and that she heard from Jalowiec that Michael Smith was in the
LeBaron. Brian Howington testified that he was with Jalowiec and Lally on the
night of the murder, and that Jalowiec and Lally left in the LeBaron around 1:00
a.m. Michael Smith's testimony implicated Jalowiec, Raymond Smith, and
Danny Smith in the Lally murder. Michael Smith confirmed that Jalowiec,
Raymond Smith, and Danny Smith made arrangements to get Lally into the car,
before Lally would have a chance to testify against them.

Evidence at trial also indicated that the conspiracy began as early as
September 15, 1993. Lally told Elyria police officer Homoki at Mr. Hero's in
10

January Term, 2001
Elyria that both Jalowiec and Danny Smith had threatened him. This occurred a
month after Raymond Smith and Danny Smith had been arrested as a result of
Lally's controlled drug buy. While at Mr. Hero's, Lally told Officer Homoki that
"these individuals" had threatened his life because he was going to testify against
them. Danny Smith had also pointed to Lally at that time and said: "That snitch
will get his."

Accordingly, the following statements by Danny Smith were made in the
course of, and in furtherance of, the conspiracy. Lynne Altpater testified that
Danny Smith asked her, about a month before Lally's murder, for some poison for
someone who was "going to testify against him." Carl Hartman testified that in
November 1993, Danny Smith offered him a BMW and cash to make sure "Ron
didn't make it to the stand," but when Hartman refused, Danny Smith told him
that "Stanley and his dad" would do it for him.

Sandra Williams testified that Danny Smith told her that "it would be a
shame if anything happened to [Lally's] family" or to her. He also said that he
knew that Lally's family "lived in a trailer and it would be a shame if it got
blowed up." Testimony about threats is not hearsay. Evid.R. 801(C) and
Comment.

Terry Hopkins testified that on the morning of the murder, Danny Smith
told him "they did it" and that Jalowiec told him, "They stomped him and ran him
over with a car." Further, he testified that Jalowiec and Raymond and Danny
Smith were "[k]ind of like bragging about" murdering Lally and that Danny
Smith stated that he wanted the person killed because "he had wore a wire on him
on a drug sale." Testimony of bragging by the Smiths tended to implicate them,
not Jalowiec, and thus was harmless, even if not admissible as statements against
interest or statements of coconspirators.

We find that the prosecution established a prima facie case of conspiracy.
The early admission of statements that could have been deemed hearsay at the
11

SUPREME COURT OF OHIO
time they were elicited was rendered harmless, since independent proof of the
conspiracy was admitted into evidence before the case was submitted to the jury.
Carter, 72 Ohio St.3d at 550, 651 N.E.2d at 972; see, also, Smith, 87 Ohio St.3d
at 433-435, 721 N.E.2d at 106-107. We reject Proposition of Law II.

Sufficiency of Evidence. In Proposition of Law III, Jalowiec contends that
the trial court erred in failing to grant his motion for acquittal under Crim.R. 29.
Specifically, Jalowiec asserts that there was no evidence that any element of the
crime was committed in Lorain County and that venue in Lorain County was
therefore improper. Jalowiec also argues that there was insufficient evidence to
prove prior calculation and design.

When reviewing a claim of insufficient evidence, the relevant inquiry is
whether any rational factfinder, viewing the evidence in a light most favorable to
the state, could have found the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.E.2d 560, 573; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
492, paragraph two of the syllabus. The verdict will not be disturbed unless the
reviewing court finds that reasonable minds could not reach the conclusion
reached by the trier of fact. Id. at 273, 574 N.E.2d at 503.

With regard to Jalowiec's claim of improper venue, we held in State v.
Beuke (1988), 38 Ohio St.3d 29, 526 N.E.2d 274, paragraph one of the syllabus:
"When an offender commits offenses in different jurisdictions as part of a course
of criminal conduct, venue lies for all the offenses in any jurisdiction in which the
offender committed one of the offenses or any element thereof. (R.C.
2901.12[H].)" Venue is not a material element of any crime but is a fact that must
be proven beyond a reasonable doubt. State v. Headley (1983), 6 Ohio St.3d 475,
477, 6 OBR 526, 528, 453 N.E.2d 716, 718. However, R.C. 2901.12(G) provides:
"When it appears beyond a reasonable doubt that an offense or any element of an
offense was committed in any of two or more jurisdictions, but it cannot
12

January Term, 2001
reasonably be determined in which jurisdiction the offense or element was
committed, the offender may be tried in any such jurisdiction." (Emphasis
added.)

The testimony by Officer Homoki concerning the threats made to Lally by
Jalowiec and Danny Smith and the events culminating in Lally's being taken out
of Lorain County with Jalowiec and Raymond and Michael Smith indicate that a
conspiracy had been formed prior to the murder. The evidence shows that those
events were orchestrated and supports the prosecution's claim that prior
calculation and design occurred in Lorain County.

Michael Smith testified that after he and his father got in the LeBaron
driven by Jalowiec, Raymond Smith brandished a gun and told Lally not to make
any sudden moves. As they drove toward Cleveland, Raymond Smith repeatedly
asked Lally why he "set my son up."

Yet Michael Smith also testified that Smith told Lally that they were going
to put him on a bus to leave town and that "everything got a little more
comfortable" in the car while the four of them drank beer and smoked crack.
Michael Smith testified that they drove to East Cleveland to buy crack for Lally to
take on his trip. Although this evidence could be considered to somewhat negate
the state's argument that prior calculation and design was formed in Lorain
County, the trier of fact could have concluded that the conspirators were simply
engaged in a subterfuge to relax Lally.

Subsequently, Raymond Smith directed the car into Woodland Cemetery
in Cleveland and told Lally: "You will never snitch on nobody again." After
Raymond Smith shot Lally, Jalowiec got out of the car and helped him beat Lally.
After leaving Lally in the cemetery road, Jalowiec attempted to drive the LeBaron
over Lally's body several times.

In our view, the evidence at trial indicated that the whole sequence of
events leading up to Lally's murder, including prior calculation and design,
13

SUPREME COURT OF OHIO
occurred in both Lorain and Cuyahoga Counties. As was true in the case
involving Jalowiec's coconspirator, see State v. Smith, 87 Ohio St.3d at 435-436,
721 N.E.2d at 107-108, the jury could have reasonably found that prior
calculation and design by Jalowiec took place in Lorain County. As in Smith, the
jury could have reasonably concluded that getting Lally in the car ostensibly to
ride to Cleveland to buy crack, as well as the plan to have Lally take a bus out of
town, was merely a ruse to enable them to kill him in an area where his corpse
could not be identified. In sum, we find that the trial court did not err in denying
Jalowiec's Crim.R. 29 motion for acquittal on grounds of improper venue or in
failing to demonstrate prior calculation and design. Therefore, we reject
Proposition of Law III.
Gruesome
Photographs.

In Proposition of Law XI, Jalowiec asserts error
in the admission of gruesome, prejudicial, and cumulative photographs.

Under Evid.R. 403, the admission of photographs and similar evidence is
left to the sound discretion of the trial court. State v. Maurer (1984), 15 Ohio
St.3d 239, 264, 15 OBR 379, 401, 473 N.E.2d 768, 791. Nonrepetitive
photographs in capital cases, even if gruesome, are admissible if the probative
value of each photograph outweighs the danger of material prejudice to the
accused. Id. at paragraph seven of the syllabus.

Jalowiec does not specify that any particular photographs were
cumulative. He merely argues that since there was no dispute as to the cause of
death, the gruesome photographs, as a whole, were inadmissible. However, "[t]he
fact that appellant stipulated the cause of death does not automatically render the
photographs inadmissible." Maurer, 15 Ohio St.3d at 265, 15 OBR at 401, 473
N.E.2d at 792.

State exhibits 1-A through 1-Q are photographs of the crime scene where
Lally's body was discovered. Several were admitted into evidence without
objection. State exhibits 1-G and 1-I through 1-M were admitted over defense
14

January Term, 2001
objections. Any alleged error in the admission of the photographs that were not
objected to is waived.

Of the seventeen crime scene photographs, only three appear to be grisly.
Each of these photographs corroborated the testimony of Cleveland detective
Michael Beaman, who investigated the Lally homicide on the extremely cold
morning of January 19, 1994. These photographs also helped to establish the
intent of the killers and the "nature and circumstances of the crimes." State v.
Reynolds (1998), 80 Ohio St.3d 670, 677, 687 N.E.2d 1358, 1367. State exhibit
1-F shows the victim lying face down on the cemetery road with a wound to his
left shoulder. State exhibit 1-G, which the court warned the jury was gruesome,
shows the victim's face covered with blood and snow and a large wound on his
neck. State exhibit 1-H depicts Lally's chest covered with blood.

The other crime scene photographs show various items of evidence found
at the scene. State exhibits 1-L and 1-M depict tire tracks running through a large
bloodstain. The photographs also corroborate the testimony of Michael Smith,
who was a witness to the murder. Four photographs showing the body lying
across the road are repetitive but are not gruesome, so there is no prejudice. None
of the rest of these crime scene photographs is repetitive.

State exhibits 2-A through 2-CC are twenty-seven photographs taken
around the time of Lally's autopsy.2 Jalowiec objected to the admission of all
autopsy photographs because of their gruesome and repetitive nature. The trial
court overruled his objections and admitted them into evidence.

Admittedly, several of these photographs are gruesome. Each one
corroborates the testimony of Dr. Raaf, who performed the autopsy on Lally. The
cumulative effect of several repetitive autopsy photographs was harmless. In
addition, the photographs illustrated the extent of the beating that Lally sustained
and the attempts made by Jalowiec to run over his body with a car, and the
15

SUPREME COURT OF OHIO
photographs were relevant by illustrating witness testimony and forensic
evidence. Maurer, 15 Ohio St.3d at 265-266, 15 OBR at 401-402, 473 N.E.2d at
791-792. Accordingly, we overrule Proposition of Law XI.

Jury Instructions. In Proposition of Law XIII, Jalowiec argues that it was
impossible to reconcile the specific-intent requirement of former R.C.
2903.01(D), 139 Ohio Laws, Part I, 3-4, and the charge given to the jury. He
asserts that the overall jury charge was so confusing that one simply cannot find
that the jury was clearly instructed. However, Jalowiec's failure to object to the
instruction waived all but plain error.

The portion of the jury charge that Jalowiec claims is in conflict with
former R.C. 2903.01(D) provided:

" `Cause' is an essential element of the offense charged in Count One.

" `Cause' is an act, or a failure to act, which in the natural and continuous
sequence directly produces the death, and without which it would not have
occurred.

" `Cause' occurs when the death is the natural and foreseeable result of the
act, or the failure to act.

"The Defendant's responsibility is not limited to the immediate or most
obvious result of the Defendant's act, or failure to act.

"The Defendant is also responsible for the natural and foreseeable
consequences or results that follow, in the ordinary course of events, from the act
or failure to act."

We have stated that "[a] single instruction to a jury may not be judged in
artificial isolation but must be viewed in the context of the overall charge." State
v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph
four of the syllabus. Here, the overall charge indicated that the jury was required
to find specific intent to kill and prior calculation and design before it could

2. There are no photographs in the record marked state exhibits 2-D or 2-V.
16

January Term, 2001
convict Jalowiec of aggravated murder. The instruction on foreseeable
consequences does not constitute error, let alone plain error, since other
instructions given by the court limited any prejudicial effect. State v. Getsy
(1998), 84 Ohio St.3d 180, 196, 702 N.E.2d 866, 883. Accordingly, Proposition
of Law XIII is overruled.
SENTENCING ISSUES

Rebuttal Testimony. In Proposition of Law XII and in the second part of
Proposition of Law I, Jalowiec asserts that he was prejudiced by the state's
presentation of rebuttal witnesses during the mitigation phase. Jalowiec contends
that under the guise of rebuttal, the state presented numerous witnesses who
testified as to other crimes committed by Jalowiec. Jalowiec submits that this
testimony was essentially evidence of nonstatutory aggravating circumstances.

At the mitigation hearing, Jalowiec gave an unsworn statement, during
which he also responded to questions from defense counsel. During his unsworn
statement, Jalowiec chronicled his problems with rheumatoid arthritis, its effects
on him, and how it prevented him from holding a job for very long. He spoke
about the relationship he had with the children of his girlfriend and how he had
developed a father-son relationship with her son, Derrick. Jalowiec denied being
involved with threatening or wanting to kill Lally, stating, "I had nothing to do
with this." He also denied having a crack problem and asserted that there were no
pending drug cases against him.

At that point, away from the jury, the defense indicated that it was going
to rest if the trial court thought it had not opened the door for rebuttal by the
prosecution. The court overruled the defense motion to prevent rebuttal by the
state on the grounds that Jalowiec had brought out a character trait, that "[h]e is a
great guy," that could be rebutted under Evid.R. 404(A)(1), in particular with
evidence of prior crimes of violence.
17

SUPREME COURT OF OHIO

After this, the court permitted Jalowiec to continue with his unsworn
statement. Jalowiec then admitted that he had pending charges brought against
him for felonious assault, menacing, arson, aggravated drug trafficking, and
possessing drug paraphernalia. The first three charges related to bar fights in
which Jalowiec was involved, but he denied any guilt. With regard to the charges
of drug trafficking, Jalowiec claimed that he did not "know, really know, what
this is all about" and further claimed that the drug charges had been brought in an
attempt to compel him to testify against others in the homicide investigation.

The defense then called a number of other witnesses, including relatives,
who testified that Jalowiec was "great" with children, that he fainted at the sight
of blood, that he "loved kids," that he would not go hunting and "wouldn't kill a
thing," that he did not start the bar fight that led to the menacing charge or fight
back, and that he was a "fun loving kid" who "loved animals" and loved kids and
people.

In response, the state produced seven rebuttal witnesses who testified that
Jalowiec sold crack cocaine, that he had a crack pipe that fell out of his pants leg
when he was pulled over on a traffic stop, that he hit someone with a baseball bat
outside a bar, causing almost $20,000 in medical bills to the victim, that he
bragged about kicking the same bar-fight victim in the face, and that he caused
injuries to another victim of the same bar fight, resulting in hospitalization and
$10,000 worth of medical bills.
In
State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, syllabus,
we held that "counsel for the state at the penalty stage of the capital trial may
introduce * * * (3) evidence rebutting the existence of any statutorily defined or
other mitigating factors first asserted by the defendant." Accord State v. Raglin
(1998), 83 Ohio St.3d 253, 261, 699 N.E.2d 482, 490.
18

January Term, 2001

Here, Jalowiec denied knowledge of any legitimate basis as to why
particular drug trafficking charges had been brought against him. He called
several witnesses to testify about what a good person he was.

The trial court has discretion to determine what relevant evidence is
admissible as proper rebuttal. State v. Dunlap (1995), 73 Ohio St.3d 308, 316,
652 N.E.2d 988, 996. In discharging its burden to prove that the aggravating
circumstance outweighs the mitigating factors, the prosecution may rebut
mitigation evidence. State v. DePew (1988), 38 Ohio St.3d 275, 285-286, 528
N.E.2d 542, 554.

Similar to the situation in State v. McNeill (1998), 83 Ohio St.3d 438, 446-
447, 700 N.E.2d 596, 605-606, Jalowiec opened the door to rebuttal. This
rebuttal evidence tended to show that Jalowiec was capable of strenuous physical
activity, that he sold drugs, and that he severely beat victims in the bar fights that
led to the charges against him. The trial court did not err in permitting the
prosecution to rebut Jalowiec's unsworn statement or witnesses. The rebuttal
testimony did not amount to the introduction of nonstatutory aggravating
circumstances. See Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253, syllabus.

Jalowiec argues under the second part of Proposition of Law I that the out-
of-court statements of Raymond Smith, which were elicited during the rebuttal
testimony of Detective Alan Leiby in the mitigation phase, prejudiced him.
Jalowiec also contends that the trial court improperly admitted two taped
confessions of Smith, the second one implicating Jalowiec, at the mitigation
phase.

During his unsworn statement, Jalowiec testified, "I had no reason to kill
that man." He stated, "Detective Leiby specifically set me up and he made some
comments in the newspaper, to the Chronicle, and one of the comments was that it
was impossible for him to get 15 people to lie against us." Jalowiec also stated, "I
19

SUPREME COURT OF OHIO
really didn't have nothing to do with this, that it was a family thing and I am not
part of the Smith family."

In rebuttal, Detective Leiby testified that Raymond Smith told him on the
telephone that Jalowiec was involved in the Lally murder. Smith was trying to
help his son Danny Smith work out a deal to avoid six counts of drug trafficking.
Smith gave a taped statement at police headquarters describing the events leading
up to Lally's death at the cemetery. He claimed that Lally had the gun and that
Lally had kidnapped him. He did not mention Jalowiec's name at that time.
Later, Smith phoned Detective Leiby and told him that the other person in the
cemetery was Jalowiec.

Given the case law cited in our discussion of Proposition of Law XII,
DePew and McNeill, supra, Jalowiec's mitigation evidence, especially his denials
of involvement in the Lally murder, opened the door to this rebuttal evidence.

However, the admission of the two taped statements of coconspirator
Raymond Smith was erroneous, since both tapes constituted inadmissible hearsay.
Jalowiec's failure to object to their admission waived all but plain error. In this
instance, no plain error occurred, since the improper admission of the tapes was
not outcome-determinative in light of the abundant evidence presented against
Jalowiec. Any prejudicial impact this evidence may have had on the sentencing
phase can be cured by our independent review of the sentence. State v. Dennis
(1997), 79 Ohio St.3d 421, 432, 683 N.E.2d 1096, 1106. Therefore, we reject the
second part of Proposition of Law I.

Sentence Appropriateness. In Proposition of Law VII, Jalowiec
challenges the appropriateness of his death sentence. The appropriateness of this
sentence will be evaluated in connection with our independent sentence
evaluation.

Proportionality Review. In Proposition of Law VIII, Jalowiec argues that
the proportionality review that we conduct is not the one established in R.C.
20

January Term, 2001
2929.05 and is fatally flawed, since it does not include cases where a life sentence
was imposed. We disagree. Proportionality review entails comparing only cases
where a sentence death is imposed. State v. Steffen (1987), 31 Ohio St.3d 111,
123-124, 31 OBR 273, 284, 509 N.E.2d 383, 395. Accordingly, we reject
Proposition of Law VIII.
Jury
Instructions.

In Proposition of Law IX, Jalowiec criticizes the trial
court's penalty-phase jury instructions. Jalowiec essentially argues that the
following instruction required that the jury reject the death penalty before it
considered the life sentences, an instruction proscribed in State v. Brooks (1996),
75 Ohio St.3d 148, 160, 661 N.E.2d 1030, 1041:

"You should recommend the sentence of death if you unanimously, that is,
all twelve of you, find by proof beyond a reasonable doubt, that the aggravating
circumstances outweigh the mitigating factors.

"If you do not so find, you shall unanimously (all twelve) recommend
either a life sentence with parole eligibility after serving twenty years of
imprisonment, or a life sentence with parole eligibility after serving thirty years of
imprisonment."

Jalowiec's failure to object to this instruction waived all but plain error.
State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332,
syllabus. The instruction does not constitute plain error. See State v. Bey (1999),
85 Ohio St.3d 487, 498, 709 N.E.2d 484, 496; State v. Goff (1998), 82 Ohio St.3d
123, 128-129, 694 N.E.2d 916, 921-922; State v. Mitts (1998), 81 Ohio St.3d 223,
233, 690 N.E.2d 522, 531. Unlike in Brooks, 75 Ohio St.3d at 159, 661 N.E.2d at
1040, the jury in this case was not told that it had "to determine unanimously that
the death penalty was inappropriate before you can consider a life sentence."
Instead, "[t]he jury was free to consider a life sentence even if jurors had not
unanimously rejected the death penalty." State v. Taylor (1997), 78 Ohio St.3d
15, 29, 676 N.E.2d 82, 95.
21

SUPREME COURT OF OHIO

Jalowiec complains that the court referred to aggravating circumstances
(plural) when he was charged with only one aggravating circumstance. However,
the state moved the trial court to correct the transcript because the court reporter
had informed the prosecutor that "in computerized transcription, the word
circumstance is automatically typed in as circumstances." On June 24, 1997, the
trial court granted the state's motion to correct the record. But the transcript itself
was not corrected, and the plural appears throughout. The plural noun often has a
singular verb, however, corroborating the claim of error in transcription.
Moreover, the trial court instructed the jury on only one aggravating
circumstance, and the verdict forms set forth only one aggravating circumstance
for the jury to consider.

Jalowiec points out that the trial court erred in instructing the jury on all
statutory mitigating factors, including factors that were not relevant. See State v.
Hicks (1989), 43 Ohio St.3d 72, 77, 538 N.E.2d 1030, 1036, fn. 3, and State v.
DePew, 38 Ohio St.3d at 289, 528 N.E.2d at 557. This did not, however,
constitute plain error. See Bey, 85 Ohio St.3d at 498, 709 N.E.2d at 496.

Last, Jalowiec argues that the jury was provided no guidance on how to
proceed. Specifically, Jalowiec contends that the court's instruction on weighing
essentially compelled a death sentence. The trial court instructed:

"The Prosecutor has the burden to prove, beyond a reasonable doubt, that
the aggravating circumstances [sic] which the Defendant was found guilty of
outweighs the factors in mitigation of imposing the death sentence.

" `To outweigh' means to weigh more than, to be more important than.

"The existence of mitigating factors does not preclude or prevent the death
sentence if the aggravating circumstances [sic] outweighs the mitigating factors."

We conclude that the instruction complies with R.C. 2929.03. Based on
all the foregoing, we reject Proposition of Law IX.
22

January Term, 2001

Effective Assistance. In Proposition of Law V, Jalowiec claims that he
was denied effective assistance of trial counsel. To gain reversal of a conviction
for ineffective assistance, "[f]irst, the defendant must show that counsel's
performance was deficient. * * * Second, the defendant must show that the
deficient performance prejudiced the defense." Strickland v. Washington (1984),
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Accord State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

The record does not support a finding that Jalowiec was prejudiced, that is,
that there was "a reasonable probability that, were it not for counsel's errors, the
result of the trial would have been different." Id. at paragraph three of the
syllabus.

Jalowiec identifies five areas where counsel were allegedly deficient.

First, Jalowiec complains that "during voir dire counsel failed to
rehabilitate favorable jurors and failed to timely object to unfounded challenges
by the State." Although Jalowiec does not provide any specific examples or
citations to the record, he is apparently referring to the excused jurors mentioned
under Proposition of Law VI. As previously discussed, none of the juror excusals
challenged in that proposition was improper. Moreover, we have repeatedly held
that counsel is in a much better position to determine whether jurors could have
been rehabilitated than can a reviewing court. E.g., Phillips, 74 Ohio St.3d at 85-
86, 656 N.E.2d at 659; Bradley, 42 Ohio St.3d at 143, 538 N.E.2d at 381.

Second, Jalowiec claims that he was prejudiced because counsel failed to
object to the admission of his coconspirator's statements on tapes that implicated
him in the murder. Defense counsel specifically declined to object to this
evidence at the close of the mitigation phase. As discussed under Proposition of
Law XII, the admission of the two taped statements of Raymond Smith was
improper. Counsel should have objected to these tapes. However, their
23

SUPREME COURT OF OHIO
admission did not affect the outcome of Jalowiec's sentencing determination.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.

Third, Jalowiec argues that he was prejudiced by counsel's failure to
request an expert to assist them in determining the cause of death. The deputy
coroner, Dr. Heather Raaf, testified that Lally's injuries were consistent with
being stomped or struck by a vehicle several times. On cross-examination, Dr.
Raaf stated that she did not find any tire or boot tread markings on Lally's corpse.
Because of this, Jalowiec claims that counsel were deficient in failing to request
their own expert witness.

However, Dr. Raaf did not testify that there were no markings on Lally's
body; rather, she testified that there were no tread markings found on the body.
Had counsel requested an expert on cause of death, the request might not have
been granted. The appointment of defense experts is within the sound discretion
of the trial court. See State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d 264, paragraph four of the syllabus. Jalowiec has failed to
demonstrate how such an expert would have aided his defense or that there was a
basis for requesting an expert. See State v. Mason (1998), 82 Ohio St.3d 144,
150, 694 N.E.2d 932, 943-944. In sum, Jalowiec has not demonstrated how he
was prejudiced by counsel's failure to seek expert assistance.

Fourth, Jalowiec claims deficient representation because counsel (1) failed
to object to the instruction on all statutory mitigating factors, (2) failed to object
to the lack of a sympathy instruction, (3) failed to object to the instruction on
consideration of life sentences, (4) failed to request a definition of the term
"mitigation" at the penalty phase, and (5) failed to object to the guilt phase
instruction that the "Defendant is charged as a principal offender."

The decision not to request a sympathy instruction was appropriate, since
sympathy is irrelevant to sentencing and no instruction on it need be given. See
State v. Allen (1995), 73 Ohio St.3d 626, 638, 653 N.E.2d 675, 687. Counsel did
24

January Term, 2001
not err in failing to object to the instruction supposedly requiring consideration of
the death penalty before life sentences, because, as discussed under Proposition of
Law IX, the instruction did not violate Brooks, 75 Ohio St.3d at 160, 661 N.E.2d
at 1041.

The failure to request an instruction defining the term "mitigation" did not
prejudice Jalowiec. The absence of instructions on the concept of mitigation does
not violate the Eighth and Fourteenth Amendments to the United States
Constitution. Buchanan v. Angelone (1998), 522 U.S. 269, 275-277, 118 S.Ct.
757, 761-762, 139 L.Ed.2d 702, 709-710. The instructions here did not foreclose
the jury's consideration of any mitigating evidence, since the court directed the
jury to "consider all of the evidence." Id., 522 U.S. at 277, 118 S.Ct. at 762, 139
L.Ed.2d at 710; Goff, 82 Ohio St.3d at 131, 694 N.E.2d at 923.

Counsel's failure to object to the instruction on Jalowiec's being charged
as a principal offender was harmless. The court properly defined principal
offender as part of the complicity instruction. This case involved the specification
of killing to prevent testimony under R.C. 2929.04(A)(8); it did not involve the
felony-murder specification of R.C. 2929.04(A)(7), where determination of
principal-offender status may be critical. See State v. Taylor (1993), 66 Ohio
St.3d 295, 612 N.E.2d 316.

Fifth, Jalowiec contends that counsel were ineffective in permitting the
defendant to make an unsworn statement, which resulted in a ruling that the
prosecutor could rebut it. However, counsel's decision to have Jalowiec make an
unsworn statement did not fall "below an objective standard of reasonable
representation." Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of
the syllabus. Counsel's decision was in the nature of trial strategy. With little
mitigating evidence to offer, counsel decided to let Jalowiec speak to the jury in
the hope of avoiding the death penalty. We ordinarily refrain from second-
guessing strategic decisions made by counsel at trial, even where counsel's
25

SUPREME COURT OF OHIO
strategy was questionable, State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16
O.O.3d 35, 37, 402 N.E.2d 1189, 1192, and even though appellate counsel
essentially argue that they would have defended differently. Mason, 82 Ohio
St.3d at 169, 694 N.E.2d at 956.

Based on the foregoing, we reject Proposition of Law V.
Constitutionality.

In Proposition of Law X, Jalowiec argues that Ohio's
death-penalty scheme violates both the state and federal Constitutions on
numerous grounds. As we have before, we summarily reject these arguments.
State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. See
Jenkins, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State v. Sowell (1988),
39 Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; Steffen, 31 Ohio St.3d at 125, 31
OBR at 285-286, 509 N.E.2d at 396; State v. Grant (1993), 67 Ohio St.3d 465,
483, 620 N.E.2d 50, 69; Maurer, 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d
768, paragraph six of the syllabus; State v. Lewis (1993), 67 Ohio St.3d 200, 206,
616 N.E.2d 921, 926; State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489
N.E.2d 795; and State v. Coleman (1989), 45 Ohio St.3d 298, 308, 544 N.E.2d
622, 633.
INDEPENDENT REVIEW AND PROPORTIONALITY

In Proposition of Law VII, Jalowiec asserts that his death sentence should
be reversed as inappropriate, especially since during mitigation the state was able
to introduce evidence of other crimes of which he had been accused. As
discussed under Propositions of Law I and XII, Jalowiec opened the door to this
rebuttal testimony when he denied his guilt, denied having any drug charges
pending against him, and generally portrayed himself as a good person.

Among other evidence, the testimony that Jalowiec and Danny Smith
threatened Lally at the Mr. Hero's restaurant, that Danny Smith secured his father
and Jalowiec to ensure that "somebody didn't make it to the stand," and that
Jalowiec participated in the murder of Lally to prevent him from testifying in the
26

January Term, 2001
Smith drug trials, combined to prove the single aggravating circumstance beyond
a reasonable doubt. Upon independent assessment, we conclude that the evidence
supports beyond a reasonable doubt the aggravating circumstance of R.C.
2929.04(A)(8).

The nature and circumstances of the offense provide nothing in mitigation.
Jalowiec and Raymond Smith beat Ron Lally to death. That Smith participated
and shot Lally does not mitigate the appropriate punishment.

Jalowiec's history, character, and background provide some mitigating
features. Several witnesses testified on Jalowiec's behalf, including his parents,
sister, and grandfather, and a former girlfriend. Ray Pasterczyk told how
Jalowiec helped him do odd jobs around his house while he recuperated from
knee-replacement surgery. Jackie Chaffin, Jalowiec's former live-in girlfriend,
stated that Jalowiec was her oldest son Derrick's "best friend" and that Jalowiec
continued to give him presents and cards, even when she and Jalowiec were not
living together. Chaffin recounted how Jalowiec regularly took Chaffin's
youngest son, Cody, who had numerous medical problems, to therapy, and that he
would baby-sit Derrick too. Chaffin described Jalowiec as "great with my
children" and stated that he "never caused trouble for me."

Nancy Morrison, a friend of Jalowiec and his family, testified that
Jalowiec "loved kids" and was always courteous and nice to her. Jalowiec's
grandfather, Edward Jalowiec, recounted how Jalowiec worked at his golf course
and would help him do other chores. He stated that Jalowiec "wouldn't go
hunting with us. He wouldn't kill a thing * * *." He further noted Jalowiec's
problems with arthritis and hoped that the jury would spare his life.

Jalowiec's younger sister, Tammy Jalowiec, stated that she had a good
relationship with her brother and never had any problems with him. She also
spoke of Jalowiec's problems with arthritis and claimed that Jalowiec was the
27

SUPREME COURT OF OHIO
victim in the bar fight that resulted in criminal charges brought against him. She
pleaded with the jury not to sentence Jalowiec to death.

Jalowiec's father, Edward Jalowiec, testified that he got along "real good"
with his son. He denied his son's guilt in the arson charge that followed a bar
fight. Jalowiec's father also expressed disbelief that his son could have killed
anyone, since "he wouldn't even shoot a rabbit."

Jalowiec's mother, Sarah Jalowiec, described her son as someone who
always had been "a fun loving kid" and stated that he "loved animals." She
confirmed that Jalowiec's rheumatoid arthritis prevented him from holding down
a job. Mrs. Jalowiec stated that he "loves people" and asked the jury to spare her
son's life.

Jalowiec gave an unsworn statement in which he denied killing Lally and
claimed that he and Lally had been friends. He gave a brief life story that
included the chronology of his arthritis. He claimed that it prevented him from
writing continuously, and that, as a result, he had had to quit high school. He
admitted that other criminal charges had been brought against him, which were
still pending. In general, Jalowiec denied that he had committed the various
crimes alleged in the pending charges and cast himself as a victim who had acted
in self-defense.

With regard to the statutory mitigating factors of R.C. 2929.04(B), the fact
that the killers and victim were smoking crack cocaine prior to the murder did not
place Jalowiec under duress, coercion, or strong provocation under factor two.
Factor four, the youth of the offender, has little weight, since Jalowiec was
twenty-three years old at the time of the offense. Factor five is relevant, since
Jalowiec lacked a significant history of prior criminal convictions or delinquency
adjudications. Factor six is not implicated, since Jalowiec participated directly in
the killing when he and Raymond Smith beat Lally and when he attempted to
drive over Lally's body several times before fleeing the cemetery.
28

January Term, 2001

Under factor seven, the catchall factor, several aspects are worthy of
weight in mitigation. The love and support that Jalowiec enjoys from his family
is entitled to some weight. See, e.g., Mason, 82 Ohio St.3d at 170, 694 N.E.2d at
957. Jalowiec's chronic rheumatoid arthritis is worthy of slight weight in
mitigation. The fact that Jalowiec was under the influence of crack cocaine at the
time of the offense could also be considered mitigating under this factor. See
Sowell, 39 Ohio St.3d at 324-326, 530 N.E.2d at 1299-1300.

Upon independent weighing, we conclude that the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt. The
killing of a witness to prevent his testimony in another criminal proceeding strikes
at the heart of the criminal justice system. See State v. Keene (1998), 81 Ohio
St.3d 646, 671, 693 N.E.2d 246, 266-267.

The death penalty imposed in this case is both appropriate and
proportionate with the death sentence imposed on Jalowiec's fellow murderer,
Raymond Smith, in Smith, 87 Ohio St.3d 424, 721 N.E.2d 93, and the sentence
given in Coleman, 85 Ohio St.3d 129, 707 N.E.2d 476. Both cases involved the
single specification of murdering a witness to prevent his testimony in a criminal
proceeding. The sentence is also appropriate and proportionate to the sentence
imposed in cases with capital specifications in addition to the (A)(8) specification.
See State v. Lawson (1992), 64 Ohio St.3d 336, 595 N.E.2d 902; State v. Hooks
(1988), 39 Ohio St.3d 67, 529 N.E.2d 429. For these reasons, the judgment of the
court of appeals is hereby affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.

COOK, J., concurs in judgment.

LUNDBERG STRATTON, J., concurs in part and dissents in part.
__________________
29

SUPREME COURT OF OHIO

Lundberg Stratton, J., concurring in part and dissenting in part.
While I concur in the portion of the majority's opinion affirming defendant's
convictions, I dissent from the decision to uphold the sentence of death because I
do not believe that defendant's unsworn statement opened the door to all of the
prejudicial information presented by the prosecution in rebuttal.

At the mitigation hearing, defendant made an unsworn statement.
Defendant stated that he had a good grade school record and had perfect
attendance until he was diagnosed with rheumatoid arthritis when he was twelve
or thirteen years old. He told of several odd jobs that he held intermittently when
he was able to work.

Defendant told the jury that eventually he met a single mother with one
son, and the three moved in together. When defendant's arthritis became so
severe that he could no longer work, he stated, he stayed home and took care of
his girlfriend's son while she worked. He told the jury that he would clean the
house, go for walks with her son and the dog, and spend time with the child,
flying kites and doing other activities. Defendant and his girlfriend broke up for a
period of time, and she became pregnant while they were apart. Ultimately,
defendant and his girlfriend got back together, and he accepted her new baby and
helped raise the baby as well. For a short time, defendant went back to work in
order to help support both children. However, when it was discovered that the
baby was deaf, defendant stated, he quit his job in order to take the baby to
various therapy appointments. In general, defendant maintained his innocence of
the murder. Defendant stated that although Danny Smith "caught some drug
cases, you know, I didn't catch no drug cases."

Following defendant's unsworn statement, his attorney approached the
bench and stated that he was unsure how the court intended to proceed. Counsel
stated that if the court felt that he had not opened the door for rebuttal by the
prosecution, then that was all that counsel would present in mitigation. When the
30

January Term, 2001
trial court stated that the prosecutor was entitled to some rebuttal, the prosecuting
attorney said that he would rebut defendant's portrayal of himself as a "caring
individual who wanted to work, but could not, and cares for these kids." He
explained, "I think since he has chosen to put that trait into evidence, it is not a
404(B) or 404(A) problem as much as it is straight out rebuttal of an issue that he
chose to put in effect and not in the case in chief."

After the trial court ruled that defendant's unsworn statement could be
rebutted under Evid.R. 404(A)(1) and defense counsel knew that the prosecutor
would be allowed to bring in evidence of other crimes, counsel decided to put the
defendant back on the stand in an attempt to minimize the impact of the evidence
by allowing defendant to deliver some of the information himself.

Defendant took the stand for a second time and revealed that although he
had no prior criminal felony convictions as an adult, he had been charged with
other felonies. Defendant then described that he had been charged with felonious
assault in conjunction with a bar fight in 1994. Defendant explained the
circumstances of the bar fight and his involvement. He maintained his innocence,
stating that he was at a bar in Elyria with a group of people celebrating his sister's
friend's birthday when five men in the bar attempted to pick a fight. He claimed
that when the bar closed, he and his group left and were outside when he was
jumped and assaulted by the men who had bothered him earlier inside the bar. He
further opined that the only reason he had been charged was because of the
current homicide case.

Defendant further revealed that he had been charged with drug abuse,
possession of drug paraphernalia, and aggravated drug trafficking, and he
explained the nature of his involvement. Further, defendant stated that he had
been charged with menacing and arson. The menacing and arson charges resulted
from an incident in which defendant was shooting pool at a bar in Cleveland with
some friends. Defendant stated that he approached a young lady and offered to
31

SUPREME COURT OF OHIO
buy her a drink when her boyfriend grabbed him by the throat and choked him
until he passed out. Defendant's party was asked to leave, and defendant claims
that they went to another bar, where he was again assaulted on the street. A
police car pulled up, and the officers ran defendant's name through the computer.
They told defendant that someone had pressed charges against him that night for
menacing and arson. Defendant explained that the man who had choked him
earlier alleged that when he left the bar, he found his car on fire and accused
defendant of setting the fire. Defendant maintained his innocence relating to both
the menacing and the arson.

Before defendant left the stand, he asked the jurors not to consider these
alleged crimes in their deliberations. He pleaded with them that these were only
charged crimes and that the state had not proven that he had committed them. He
further reiterated his belief that the reason none of these charged crimes had been
brought to trial was that the state had been using the charges as leverage, waiting
to see if he would be convicted of the aggravated murder charges. At the
conclusion of his remarks, defendant asked the jury to spare his life.

Following defendant's statement, the defense called seven witnesses to
testify about defendant's childhood, medical problems, and relationships with the
witnesses. Several of the defense witnesses also asked the jury to spare
defendant's life. In particular, defendant's mother, father, sister, grandfather,
former girlfriend, friend, and former employer testified. Throughout the
testimony, the state was permitted to cross-examine the witnesses relentlessly
regarding their knowledge or lack thereof regarding the felonious assault, arson,
drug, and other charges.

After the extensive cross-examination, the state called seven witnesses in
rebuttal. Dennis Cavanaugh, the head of the Lorain County Drug Task Force,
testified at length regarding two alleged undercover sales of controlled drugs to
the defendant in 1994. Charges related to these sales had been filed against the
32

January Term, 2001
defendant but had not been brought to trial. Further, Scott Bohac, an informant,
testified that he had purchased crack cocaine from defendant in 1994. Detective
Scott Sargent testified that in 1994, he observed a crack pipe fall out of
defendant's pant leg when he was pulled over for a traffic stop.

Jeff Hicks testified at length about the bar incident that led to the felonious
assault charges against defendant. When asked how he knew defendant, Hicks
stated that defendant "is the one that took a baseball bat to my face." Hicks
testified that he had been hospitalized for three months with an infected jaw as a
result of injuries sustained during the bar fight and that his medical bills totaled
$20,000. Deanna Butler testified that she heard about the details of the alleged
bar fight from a cousin of Jeff Hicks (which was pure hearsay that should not
have been admitted), and that later that day she heard defendant bragging about
kicking Hicks. Kenneth Roland testified that he was also injured in the 1994
incident in which defendant was alleged to have picked a fight at an Elyria bar.
Roland testified that he was in the hospital for three days and sustained medical
bills of $10,000. Amazingly, Roland was permitted to testify regarding this
alleged incident even though he was unable to positively identify defendant as the
man who struck him.

Finally, Detective Alan Leiby testified about investigating the murder. In
particular, he testified about plea offers and witnesses. After defense counsel
suggested in cross-examination that these charges without convictions were not
relevant to the penalty phase and were highly prejudicial, the state on redirect
asked Detective Leiby, "Were what he calls the other acts or the mere allegations
even relevant until the Defendant took the stand and stated that he loves animals
and he hates blood, he is a great guy and he likes kids?" The detective answered,
"No." But he admitted on cross-examination that the felonious assault, the drug
possession, and the arson charges had nothing to do with the way defendant was
33

SUPREME COURT OF OHIO
alleged to have dealt with children and animals, since those charged crimes all
involved adults.

Further, defendant himself did not state that he was a good guy, could not
stand the sight of blood, or loved animals, the statements supposedly rebutted
with evidence of other charges. These statements came from mitigation witnesses
that the defense put on the stand only after the judge ruled that defendant had
opened the door to evidence of other crimes and the defense was forced to present
testimony regarding those pending charges.

The majority concludes that defendant opened the door to this rebuttal
testimony and that the rebuttal testimony did not amount to the introduction of
nonstatutory aggravating circumstances as proscribed in State v. Gumm (1995), 73
Ohio St.3d 413, 422, 653 N.E.2d 253, 263. Specifically, the majority agrees with
the trial court's assessment that this other-acts evidence regarding prior crimes of
violence was admissible under Evid.R. 404(A)(1) because defendant brought out
a character trait and, in the trial court's opinion, the defendant had portrayed
himself as a "great guy" even though defendant never used those words. I
strongly disagree.

Evid.R. 404(A)(1) provides:

"(A) Evidence of a person's character or a trait of his character is not
admissible for the purpose of proving that he acted in conformity therewith on a
particular occasion, subject to the following exceptions:

"(1) Character of accused. Evidence of a pertinent trait of his character
offered by an accused, or by the prosecution to rebut the same is admissible * *
*."

Because defendant initially stated that he had never had any drug charges,
I agree that the defense opened the door to evidence relating to the drug charges.
Further, the rebuttal testimony of Detective Leiby was admissible because it
primarily covered the murder investigation itself. But I fail to see how the trial
34

January Term, 2001
court could conclude that defendant had opened the door to the blatantly
prejudicial evidence of the felonious assault and arson charges simply by
portraying himself, in the court's words, as "a great guy."

I would find that the content of defendant's unsworn statement did not
warrant seven rebuttal witnesses testifying with virtually no limitation about
crimes of which defendant has never been convicted and which defendant hotly
contested. If portraying oneself as a good person can open the door to witness
after witness and page after page of such speculative and damaging testimony,
then I cannot imagine any case that would not open the door to such evidence.
Under the standard used in this case, almost any positive comment a defendant
could make about himself or herself would open the door to every possible or
even speculative misdeed he or she ever committed or was even alleged to have
committed.

The other-acts evidence relating to the felonious assault and arson charges
amounted to nothing more than a blatant attempt to discredit a person who up
until this point in his life was without a criminal record. In mitigation, defendant's
mother, father, grandfather, and sister all testified that they had good relationships
with the defendant. Defendant worked until his arthritis prohibited him from
doing so. Defendant had a relatively clean background before he was charged
with aggravated murder. Moreover, the family vendetta involved the Smiths, not
the defendant, and there was no evidence that the victim had ever snitched on
defendant. Rather than being an instigator, defendant appeared to have been
recruited for the crime. These are all mitigating factors.

Certainly I do not condone defendant's actions in the underlying case.
Obviously, he is still just as guilty of murder as Raymond Smith. Thus, he was
properly convicted of aggravated murder in the guilt phase of the trial. However,
in the mitigation phase of the trial, the jury weighs evidence relating to whether
the defendant's life is worth sparing or whether he deserves the death penalty.
35

SUPREME COURT OF OHIO
Therefore, every piece of evidence or testimony, either sympathetic or prejudicial,
affects the jury.

Again, while not excusing the murder itself, the fact that defendant was
not the leader in the murder could have an impact on the jury. In addition,
defendant had a relatively uneventful history prior to the murder. These factors
make the evidence of other criminal charges so prejudicial to this defendant. If
defendant's background prior to the murder had already seemed to mirror the
challenged testimony, the effect would not have been as great. But, in this case,
the prejudicial other-acts evidence may have influenced the jury to vote for the
death penalty. I would find that these trials within the trial were so prejudicial
that they probably affected the jury's decision regarding the sentence and tipped
the scale toward death.

None of the testimony rebutted defendant's work history or his claim of
inability to hold a job. The prosecution presented no evidence of a false workers'
compensation claim. No rebuttal witness testified that he was abusive to his
girlfriend or her children or otherwise disputed his caring nature toward his
girlfriend's children or his assistance to her deaf child. Other than testimony
relating to defendant's drug charges, none of the testimony was rebuttal at all--it
was all new "other acts" which were all only at a "charge" stage--none even
reduced to a conviction so as to lend them reliability.

If this type of testimony is allowed, I fear the protections of the
Constitution will be irreparably eroded. I respectfully dissent and would vacate
the sentence of death and remand to the trial court for a new mitigation hearing
that would exclude the testimony relating to the felonious assault and arson
charges.
__________________
APPENDIX
36

January Term, 2001

Proposition of Law I: Appellant Jalowiec's sixth, eight and fourteenth
amendment rights as guaranteed by U.S. CONST. were violated by the admission
at trial of a co-defendant's confession inculpating the defendant.

Proposition of Law II: Appellant Jalowiec was denied his fifth, sixth,
eighth and fourteenth amendment rights as guaranteed by the U.S. Constitution by
the admission of statements of a co-conspirator which did not meet the
requirements of 801(D)(2)(e) of the Ohio Rules of Evidence.

Proposition of Law III: U.S. CONST., amendments five, six, eight, and
fourteen and Article I, Sections 10 and 16 of the OHIO CONST. require that a
court grant a motion for judgment of acquittal when the evidence is insufficient to
sustain a conviction.

Proposition of Law IV: Jurors viewing a defendant in shackles is a
violation of the U.S. CONST., 14th amendments [sic] and Article I, Section 10 of
the OHIO CONST.

Proposition of Law V: The ineffective assistance of counsel provided to
Appellant violated his rights to a fair and impartial jury trial and sentence, as
guaranteed by the fifth, sixth, eighth and fourteenth amendments to the U.S.
CONST. and the OHIO CONST.

Proposition of Law VI: The 6th and 14th amend. to the U.S. CONST. and
Sections 10 and 16 of the OHIO CONST. guarantee an accused a fair trial and an
impartial jury. The improper exclusion for cause of potential jurors because of
their views on the death penalty denied appellant Jalowiec these constitutional
guarantees.

Proposition of Law VII: The death sentence in appellant Jalowiec's case
is unreliable and inappropriate under the 8th and 14th amend. to the U.S. CONST.
and Sections 9, 10, and 16, Article I of the OHIO CONST. and R.C. 2929.05.

Proposition of Law VIII: The proportionality review that this court must
conduct in the present capital case pursuant R.C. 2929.05 is fatally flawed and,
37

SUPREME COURT OF OHIO
therefore, the present death sentence must be vacated pursuant to the 5th, 8th, and
14th amend. to the U.S. CONST. and Sections 5 and 10, Article I of the OHIO
CONST. and R.C. 2929.05.

Proposition of Law IX: Improper penalty phase jury instructions violate
an individuals [sic] rights as guaranteed by the U.S. CONST., amend. 5, 6, 8, and
14 and Ohio Const. Article I Section 10.

Proposition of Law X: Ohio's death penalty law, OHIO REV. CODE
2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.04 and 2929.05 violate
U.S. CONST. amend.V, VI, VIII, and XIV and Article I, Sections 1, 2, 5, 9, 10
and 16.

Proposition of Law XI: Appellant Jalowiec was denied his 6th, 8th, and
14th amendment rights as guaranteed by the U.S. CONST. and Sections 8 and 10,
Article I of the OHIO CONST. to a fair trial, due process and a reliable
determination of his guilt and sentence when gruesome, prejudicial and
cumulative photographs were admitted into evidence even though their prejudicial
effect outweighed their probative value.

Proposition of Law XII: To allow evidence of nonstatutory aggravating
factors during the sentencing phase of appellant's trial violated his rights
guaranteed by the U.S. CONST. amend. 6, 8, and 14 and OHIO CONST. Article
I, Section 10.

Proposition of Law XIII: The trial court's jury instruction in the fact-
finding phase denied petitioner his rights to be free from cruel and unusual
punishment, to a fair trial, to the effective assistance of counsel, to a fair and
impartial jury and the due process of law under the Fifth, Sixth, Eighth and
Fourteenth Amend. to the U.S. CONST. and Article I, Section 10 of the OHIO
CONST.
__________________
38

January Term, 2001

Gregory White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Chief Counsel, Criminal Division, for appellee.

Patricia A. Millhoff and Nathan Ray, for appellant.
__________________
39