State v. Campbell , 90 Ohio St. 3d 320 ( 2000 )

[Cite as State v. Campbell, 90 Ohio St. 3d 320, 2000-Ohio-183.]
THE STATE OF OHIO, APPELLEE, v. CAMPBELL, APPELLANT.
[Cite as State v. Campbell (2000), 90 Ohio St. 3d 320.]
Criminal law — Aggravated murder — Death penalty vacated and cause
remanded to trial court for further proceedings when trial court fails to
comply with Crim.R. 32(A)(1) — When imposing sentence, trial court must
address defendant personally and ask whether he or she wishes to make a
statement in his or her own behalf or present any information in mitigation
of punishment — Crim.R. 32(A)(1) applies to capital and noncapital cases
— When trial court imposes sentence without first asking defendant
whether he or she wishes to exercise right of allocution created by Crim.R.
32(A), resentencing is required unless error is invited or harmless error.
1. Pursuant to Crim.R. 32(A)(1), before imposing sentence, a trial court must
address the defendant personally and ask whether he or she wishes to make a
statement in his or her own behalf or present any information in mitigation
of punishment.
2. Crim.R. 32(A)(1) applies to capital cases and noncapital cases.
3. In a case in which the trial court has imposed sentence without first asking the
defendant whether he or she wishes to exercise the right of allocution
created by Crim.R. 32(A), resentencing is required unless the error is invited
error or harmless error.
(No. 98-980 — Submitted May 24, 2000 — Decided December 20, 2000.)
APPEAL from the Court of Common Pleas of Franklin County, No. 97CR-04-2020.
Appellant, Alva E. Campbell, Jr., appeals his conviction of, and death
sentence for, the aggravated murder of Charles Dials.
In 1972, Campbell was convicted of murder in the first degree under former
R.C. 2901.01 and sentenced to life imprisonment. Twenty years later, he was
paroled. In 1997, Campbell was arrested in Franklin County on a charge of
aggravated robbery. He was held at the Jackson Pike Jail pending arraignment.
On April 2, 1997, Deputy Sheriff Teresa Harrison was assigned to take
Campbell to court, a task complicated by Campbell’s confinement to a wheelchair.
Two weeks before, jail doctors had wrongly diagnosed Campbell as having
“hysterical paralysis”; in fact, he was faking. Not knowing this, however, Harrison
placed Campbell in a van and drove him into downtown Columbus.
Around 12:30 p.m., Charles Dials was paying a ticket at the traffic bureau of
the Franklin County Municipal Court.
At about the same time, Deputy Harrison was parking the van in a loading
dock at the courthouse. Harrison got out of the van and began to assist Campbell.
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Suddenly, Campbell attacked her. He beat her severely, stole her service pistol,
and fled.
Charles Dials had just left the traffic bureau and was driving west on Fulton
Street when Campbell ran outside. Campbell dashed into the street, stopped
Dials’s truck, and pulled open the driver’s door. He told Dials, “I don’t want to
hurt you; just move over.” And Campbell drove off, with Dials his prisoner.
Campbell drove to a K-Mart at Williams Road and South High Street. He
parked there and talked with Dials, telling him not to be nervous. Then he drove
back to Central Avenue, turned onto a side street, and parked near a factory.
There, Campbell took Dials’s money and made Dials exchange clothes with him.
Next Campbell drove back to High Street, where he bought a forty-ounce
bottle of beer at a drive-through. He then returned to the K-Mart. There he sat
talking with Dials “probably a good 2 hours,” according to his confession.
When a helicopter circled overhead, Campbell became nervous and turned
on the radio to hear the news. An announcer reporting on the escape mentioned
that Campbell had commandeered a red truck. Dials said, “That’s you, ain’t it?”
Campbell admitted it was, and they talked a while longer.
Campbell then moved the truck behind the K-Mart, driving around the back
lot three times before he finally chose a parking space. He said, “Charlie, I got to
get another car.” Then he told Dials to “get on the floor board of his truck.” Dials
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obeyed, and Campbell shot him twice: once in the face and once in the neck. The
shots were fired from at least six inches away, but no more than two or three feet.
Campbell tried to cover the corpse with Dials’s coat.
Campbell then drove around to K-Mart’s main lot and waited. While he sat
waiting, Katie Workman drove in. She parked near the truck and began to get out
of her car. As she opened her door, Campbell ran up to her car and put the gun to
her head. “Move over * * *,” he said. “I’ve just killed one man.” Workman
moved over, and Campbell screamed, “Give me your money, your keys.”
Workman threw her wallet and keys at Campbell and jumped out of the car.
Campbell immediately drove away and went to the nearby Great Southern
Shopping Center.
Around 3:20 or 3:30 p.m., James Gilliam was parked outside the Body Fit
gym at the Great Southern, waiting for someone. When Campbell arrived, Gilliam
was sitting in his car with the door open. Campbell forced his way into the space
between Gilliam’s car and another car.
Suddenly, Gilliam felt the car door pressing against his legs. Then he felt a
gun against his head and heard a man say: “[D]o you want to die? Get in the car
and move over.” Gilliam looked up and saw a man he later identified as Campbell.
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Gilliam pushed the door back at Campbell and stood up. Campbell said,
“Get in the car and move over. I’ve done killed two people, and I’m not afraid to
do it again.” Gilliam backed away, then turned and ran.
Gilliam’s keys weren’t in the ignition, so Campbell jumped back into
Workman’s car. He drove around for a while, at one point buying another forty-
ounce beer at a drive-through. Campbell drove off in haste, then abandoned the
car in an alley and fled on foot. Campbell hid in a tree, but the tree’s owner saw
and reported him. Police soon surrounded the tree.
Seeing now that he was cornered, Campbell dropped the gun and
surrendered. At 9:00 p.m., detectives from the Columbus Police Department and
the Franklin County Sheriff’s Office interrogated him on videotape. He gave the
detectives a lengthy and detailed confession.
Campbell was indicted on four counts of aggravated murder. Count One
charged aggravated murder under R.C. 2903.01(A) (prior calculation and design).
Counts Two through Four charged aggravated murder under R.C. 2903.01(B)
(felony-murder): Count Two was predicated on murder during an aggravated
robbery, Count Three on murder during a kidnapping, and Count Four on murder
during an escape. Each aggravated murder count carried four death specifications:
murder to escape detection, R.C. 2929.04(A)(3); felony-murder predicated on
aggravated robbery, R.C. 2929.04(A)(7); felony-murder predicated on kidnapping,
5
R.C. 2929.04(A)(7); and having a prior murder conviction, R.C. 2929.04(A)(5).
The indictment contained ten other counts: four counts of aggravated robbery, two
counts of attempted kidnapping, and one count each of kidnapping, felonious
assault, escape, and having a weapon under disability.
Campbell was convicted of all counts and specifications, but the trial judge
merged the (A)(3) specifications into the felony-murder specifications. Thus, only
three specifications were presented to the jury in the penalty phase. After a
mitigation hearing, the jury recommended death. The trial judge merged the
aggravated murder counts and sentenced Campbell to death on Count Three.
This cause is now before this court upon an appeal as of right.
__________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,
Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate
Supervisor, Death Penalty Division, and Kelly Culshaw, Assistant State Public
Defender, for appellant.
__________________
MOYER, C.J. Campbell raises twenty-three propositions of law for our
consideration. Finding no infirmity attaching to his conviction, we affirm it.
6
However, a procedural error in Campbell’s sentencing requires correction. We
must therefore remand this cause to the trial court for resentencing.
I. Failure to Advise of Right to Allocution
In his first proposition of law, Campbell contends that the trial court violated
Crim.R. 32(A)(1) by sentencing him for aggravated murder without advising him
of his right to allocution. This proposition has merit.
After the penalty phase, the trial court heard arguments from counsel, set a
sentencing date, and discussed procedures. The judge said: “I’ll * * * render my
decision and then I assume, once I’ve rendered my decision on [the aggravated
murder counts], then there will be a sentencing where you will be able to make
statements * * *.” (Emphasis added.) The prosecutor asked whether Campbell
would “have an allocution right before the Court announces its sentencing
decision.” Defense counsel stated: “After you’ve made your decision on Counts
One through Four, then I think we have a right to make a statement in allocution as
to the sentences on the other offenses.” (Emphasis added.)
On April 3, 1998, the trial court sentenced Campbell to death on Count
Three. On that date, Crim.R. 32(A)(1) provided: “Before imposing sentence the
court shall afford counsel an opportunity to speak on behalf of the defendant and
also shall address the defendant personally and ask if he or she wishes to make a
statement in his or her own behalf or present any information in mitigation of
7
punishment.”1 The trial court did not ask Campbell if he wished to make a
statement or present further information before sentencing him on Count Three.
This omission clearly violated the requirements of Crim.R. 32(A)(1).
Pursuant to Crim.R. 32(A)(1), before imposing sentence, a trial court must address
the defendant personally and ask whether he or she wishes to make a statement in
his or her own behalf or present any information in mitigation of punishment.
Crim.R. 32(A)(1) applies to capital cases and noncapital cases. State v. Reynolds
(1998), 80 Ohio St. 3d 670, 684, 687 N.E.2d 1358, 1372-1373.
The state invokes the doctrines of invited error, waiver, and harmless error.
We examine each in turn.
Invited Error
The doctrine of invited error holds that a litigant may not “take advantage of
an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v.
Ford Motor Co. (1986), 28 Ohio St. 3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph
one of the syllabus. The state contends that Campbell’s counsel invited the error
by stating: “After you’ve made your decision on [the capital counts], then I think
we have a right to make a statement in allocution as to the sentences on the other
offenses.”
However, the record does not show that defense counsel “induced” or “was
actively responsible” for the trial court’s error. State v. Kollar (1915), 93 Ohio St.
8
89, 91, 112 N.E. 196, 197. This court has found invited error when a party has
asked the court to take some action later claimed to be erroneous, or affirmatively
consented to a procedure the trial judge proposed. See, e.g., Hal Artz, 28 Ohio
St.3d at 28, 28 OBR at 89, 502 N.E.2d at 596, fn. 16; State ex rel. Lowery v.
Cleveland (1993), 67 Ohio St. 3d 126, 128, 616 N.E.2d 233, 234; State v.
Wigglesworth (1969), 18 Ohio St. 2d 171, 180-181, 47 O.O.2d 388, 393, 248
N.E.2d 607, 614.
But defense counsel did not suggest, request, or affirmatively consent to this
procedure. It was the judge who first said he would sentence on the capital counts
before any allocution. At worst, counsel acquiesced. But invited error must be
more than mere “acquiescence in the trial judge’s erroneous conclusion.”
Carrothers v. Hunter (1970), 23 Ohio St. 2d 99, 103, 52 O.O.2d 392, 394, 262
N.E.2d 867, 869.
Waiver
Alternatively, the state contends that Campbell’s failure to object at the
sentencing hearing waived the issue, which means that an error would be
cognizable only if it amounted to plain error. Ordinarily, a defendant does waive
an error if he has not objected to it at trial. See, e.g., State v. Williams (1977), 51
Ohio St. 2d 112, 116-117, 5 O.O.3d 98, 101, 364 N.E.2d 1364, 1367; State v.
Campbell (1994), 69 Ohio St. 3d 38, 40-41, 630 N.E.2d 339, 344-345.
9
However, in this context, we find the doctrine of waiver inapplicable.
Crim.R. 32(A)(1) specifically provides that before imposing sentence, “the court
shall * * * address the defendant personally” and inquire as to whether the
defendant wishes to exercise his or her right to allocution. The rule does not
merely give the defendant a right to allocution; it imposes an affirmative
requirement on the trial court to “ask if he or she wishes to” exercise that right.
This court has “consistently required strict compliance with Ohio statutes
when reviewing the procedures in capital cases.” State v. Filiaggi (1999), 86 Ohio
St.3d 230, 240, 714 N.E.2d 867, 877, citing State v. Pless (1996), 74 Ohio St. 3d
333, 658 N.E.2d 766, paragraph one of the syllabus. Moreover, “[w]e have
repeatedly recognized that use of the term ‘shall’ in a statute or rule connotes the
imposition of a mandatory obligation unless other language is included that
evidences a clear and unequivocal intent to the contrary.” State v. Golphin (1998),
81 Ohio St. 3d 543, 545-546, 692 N.E.2d 608, 611.
Of course, once the trial court has asked the defendant if he or she wishes to
speak in allocution, he or she may waive the right to do so. But in the case at bar,
no evidence exists that the defendant knew he had a right to personally address the
court prior to sentencing. Had the trial court strictly complied with Crim.R.
32(A)(1), the record would affirmatively show that Campbell had indeed known of
that right, thereby allowing him to choose whether to exercise it or not. But were
10
we to find waiver in this case, where the record of the sentencing hearing is silent
as to the right of allocution, we would in effect be sanctioning a finding of waiver
in every case in which the trial court failed to comply with the duty imposed by the
rule. We would thereby render Crim.R. 32(A)(1) merely advisory, in direct
contradiction to its express language.
Harmless Error
We have recognized that a trial court’s failure to address the defendant at
sentencing is not prejudicial in every case. In State v. Reynolds, supra, we found
such an omission to be harmless error because the defendant had made an unsworn
statement to the jury and sent a letter to the judge, and defense counsel had made a
statement to the judge on the defendant’s behalf. 80 Ohio St. 3d at 684, 687 N.E.2d
at 1372.
Citing Reynolds, the state contends that the trial court’s noncompliance with
Crim.R. 32(A)(1) here is also harmless. The state observes that the trial court had
already heard Campbell’s confession (in which Campbell had displayed some
remorse for killing Dials), Dr. Jeffrey Smalldon’s mitigation testimony (in which
Smalldon repeated some things Campbell had told him), and the penalty-phase
arguments of defense counsel. Moreover, the trial court held a special hearing a
week before imposing sentence at which defense counsel argued to the judge for
Campbell’s life.
11
Here, as in Reynolds, defense counsel did speak on Campbell’s behalf.
Unlike the defendant in Reynolds, however, Campbell made no unsworn statement.
Thus, the judge never heard Campbell personally appeal for his life. His
videotaped confession was no substitute for a personal appeal to the judge. When
he confessed, Campbell was not speaking to a tribunal about to decide whether he
was to live or die.
Nor was Dr. Smalldon’s repetition of facts Campbell had told him the equal
of Campbell’s personal plea. We have no basis for assuming that Campbell would
have said the same things to the judge that he said to the doctor. In any case,
Campbell’s words filtered through Smalldon could never have the same impact as
a plea from Campbell himself. Hence, this case is unlike Reynolds, and we reject
the state’s harmless-error claim. Campbell’s first proposition of law is sustained.
In a case in which the trial court has imposed sentence without first asking
the defendant whether he or she wishes to exercise the right of allocution created
by Crim.R. 32(A), resentencing is required unless the error is invited error or
harmless error. Therefore, we remand this cause to the Franklin County Court of
Common Pleas with instructions to resentence Campbell on Count Three after
directly asking him “if he * * * wishes to make a statement in his * * * own behalf
or present any information in mitigation of punishment.” Crim.R. 32(A)(1).
12
We therefore hold that pursuant to Crim.R. 32(A)(1), before imposing
sentence, a trial court must address the defendant personally and ask whether he or
she wishes to make a statement in his or her own behalf or present any information
in mitigation of punishment, and that Crim.R. 32(A)(1) applies to capital cases as
well as noncapital cases. We further hold that in a case in which the trial court has
imposed sentence without first asking the defendant whether he or she wishes to
exercise the right of allocution created by Crim.R. 32(A), resentencing is required
unless the error is invited error or harmless error.
II. Failure to Advise of Right to Unsworn Statement
R.C. 2929.03(D)(1) permits a capital defendant to make a penalty-phase
statement without oath or cross-examination. In his second proposition of law,
Campbell contends that the trial court had a legal obligation to inform him of that
right.
No authority requires a trial court to inform a capital defendant of his right
to make an unsworn, penalty-phase statement. Crim.R. 32(A)(1) does not apply,
because an unsworn statement under R.C. 2929.03(D)(1) is not an allocution under
the rule. See Reynolds, 80 Ohio St.3d at 684, 687 N.E.2d at 1372.
Nor do existing legal principles require the adoption of Campbell’s novel
theory. We have rejected the notion that a trial court must personally address a
capital defendant to determine whether he knowingly, intelligently, and voluntarily
13
waived his right to present mitigating evidence. State v. Keith (1997), 79 Ohio
St.3d 514, 530, 684 N.E.2d 47, 62-63. (Such an inquiry is required when a
defendant seeks to waive the presentation of all mitigating evidence, State v.
Ashworth [1999], 85 Ohio St. 3d 56, 706 N.E.2d 1231, but Campbell did not do
that.) We have also rejected the claim that a trial court must inform the defendant
of his right to testify at trial. State v. Bey (1999), 85 Ohio St. 3d 487, 499, 709
N.E.2d 484, 497. Campbell’s claim is not supported by Keith or Bey. Campbell’s
second proposition of law is overruled.
III. Preclusion of Mitigating Factors
In his third proposition of law, Campbell contends that the trial judge
precluded him from presenting evidence of two mitigating factors: (1) shortened
life expectancy due to physical illness and (2) voluntary intoxication.
Shortened Life Expectancy
On February 13, 1998, Campbell filed a motion in the trial court requesting
that he be taken to a medical facility for a “chest CT.” (“CT” is an abbreviation for
“computed tomography.” Stedman’s Medical Dictionary [26 Ed.1995] 418.) He
attached to his motion a brief medical report dated October 9, 1997, signed by Dr.
Jeffrey L. Bory of the Corrections Medical Center, Columbus. Dr. Bory’s report
stated that X-rays of Campbell’s chest showed a “density” in the region of his right
lung and “faint nodular densities” in the left, and that “[t]he possibility of a
14
malignant process cannot be excluded.” Dr. Bory recommended “[c]omparison to
a previous study if it exists”; failing that, he recommended that a chest CT be
performed on Campbell “for further evaluation of these findings.”
The trial court held a hearing the same day the motion was filed. Campbell
argued that the CT was needed to determine the possible existence of a mitigating
factor, i.e., that Campbell was suffering from an illness that might shorten his life.
(Although the state contends that this is not a mitigating factor at all, we have
recognized that “consideration should be given under R.C. 2929.04[B][7] to the
probability that appellant will never be released from prison if sentenced to life in
prison.” State v. Bradley [1989], 42 Ohio St. 3d 136, 149, 538 N.E.2d 373, 385.)
After hearing argument, the trial court denied the motion. Campbell contends that,
by denying him the requested examination, the court precluded him from placing a
mitigating factor before the jury.
Due process may require that a defendant be provided with expert assistance
when necessary to present an adequate defense. State v. Mason (1998), 82 Ohio
St.3d 144, 149, 694 N.E.2d 932, 943, citing Ake v. Oklahoma (1985), 470 U.S. 68,
105 S. Ct. 1087, 84 L. Ed. 2d 53. However, to show entitlement to such assistance,
the defense must make “a particularized showing (1) of a reasonable probability
that the requested expert would aid in his defense, and (2) that denial of the
requested expert assistance would result in an unfair trial.” Mason, syllabus. In
15
making this determination, the court must consider “(1) the effect on the
defendant’s private interest in the accuracy of the trial if the requested service is
not provided, (2) the burden on the government’s interest if the service is provided,
and (3) the probable value of the additional service and the risk of error in the
proceeding if the assistance is not provided.” Mason, 82 Ohio St. 3d at 149, 694
N.E.2d at 943.
Here, Campbell submitted nothing to indicate that the results of a CT would
be likely to aid in his defense. Dr. Bory’s report showed nothing more than a
possibility that the growths on Campbell’s lung could be malignant. The mere
possibility that the CT could have had some value to the defense was not enough.
Mason, 82 Ohio St. 3d at 150, 694 N.E.2d at 943; State v. Broom (1988), 40 Ohio
St.3d 277, 283, 533 N.E.2d 682, 691. The defense submission presented the trial
court with nothing more than speculation as to the likely value of the CT. This did
not amount to the “particularized showing” we spoke of in Mason.
Campbell also failed to show that his physical health was likely to be a
critical issue in the penalty phase. The defense apparently hoped to alleviate the
jury’s possible fears concerning Campbell’s future dangerousness by showing that
Campbell would likely die in prison. But the jury had the power to ensure that
Campbell would die in prison, simply by sentencing him to life without possibility
of parole. Thus, the argument that Campbell would die in prison was available to
16
the defense even without the CT. A court determining whether to grant a request
for expert assistance must consider “the availability of alternative devices that
would fulfill the same functions.” State v. Jenkins (1984), 15 Ohio St. 3d 164, 15
OBR 311, 473 N.E.2d 264, paragraph four of the syllabus; Mason, supra, 82 Ohio
St.3d at 150, 694 N.E.2d at 943.
Moreover, the state did not raise the issue of future dangerousness. Rather,
the defense raised lack of future dangerousness as a mitigating factor. Hence, this
case does not involve the “requirement that a defendant not be sentenced to death
‘on the basis of information which he had no opportunity to deny or explain.’ “
Skipper v. South Carolina (1986), 476 U.S. 1, 5, 106 S. Ct. 1669, 1671, 90 L. Ed. 2d
1, 7, fn. 1, quoting Gardner v. Florida (1977), 430 U.S. 349, 362, 97 S. Ct. 1197,
1207, 51 L. Ed. 2d 393, 404 (plurality opinion).
Nor did denial of the CT appreciably increase the risk that the jury would err
in recommending the penalty. Without the CT, Campbell was still able to present
an impressive and substantial case in mitigation. Denial of the CT, therefore, did
not deprive Campbell of “the basic and integral tools necessary to ensure a fair
trial.” Mason, 82 Ohio St. 3d at 149, 694 N.E.2d at 943.
Moreover, even though the defense filed its motion a mere eleven days
before trial began, this motion was completely silent as to whether a CT would
delay the trial. The trial court was not informed regarding the time required to
17
receive a CT report and whether a CT would suffice or whether further testing
might be necessary to permit a diagnosis and estimate of life expectancy.
Applying Ake and Mason, we conclude that Campbell failed to make the
required showing that a reasonable probability existed that the requested chest CT
would aid in his defense and that deprivation of the requested assistance would
result in an unfair trial. We therefore reject Campbell’s claim that he had a
constitutional entitlement to have the CT performed.
Voluntary Intoxication
Campbell asked the trial court to instruct the jury in the penalty phase that
voluntary intoxication is a potential mitigating factor. See State v. Sowell (1988),
39 Ohio St. 3d 322, 325, 530 N.E.2d 1294, 1300. The judge refused because he did
not find sufficient evidence of voluntary intoxication to raise a jury issue.
We disagree with the trial judge’s reasoning. There was evidence that
Campbell drank forty ounces of beer during the offense. Whether or not he was
intoxicated according to any particular definition is beside the point. The fact that
he had a substantial amount of alcohol in his system was a circumstance of the
offense and was relevant to mitigation under both Lockett, infra, and R.C.
2929.04(B).
However, a trial court is not required to instruct on specific nonstatutory
mitigating factors. See, e.g., State v. Goff (1998), 82 Ohio St. 3d 123, 130-131, 694
18
N.E.2d 916, 922-923; State v. Landrum (1990), 53 Ohio St. 3d 107, 122, 559
N.E.2d 710, 727-728. Certainly nothing in the penalty-phase instructions
precluded the jury from considering appellant’s alcohol consumption. In fact, the
trial court instructed the jury to consider, without limitation, “any other factors that
are relevant to the issue of whether the offender should be sentenced to death” as
mitigating factors. We have held repeatedly that such an instruction is sufficient to
allow the jury to consider all the mitigating evidence before it. Goff, supra;
Landrum, supra; State v. Scott (1986), 26 Ohio St. 3d 92, 102, 26 OBR 79, 87-88,
497 N.E.2d 55, 64. Thus, the trial judge was correct in refusing to instruct
specifically on voluntary intoxication, even though “erroneous reasons were
assigned as the basis” for that refusal. Agricultural Ins. Co. v. Constantine (1944),
144 Ohio St. 275, 284, 29 Ohio Op. 426, 430, 58 N.E.2d 658, 663.
We reject both claims advanced under Campbell’s third proposition of law,
which is therefore overruled.
IV. Sufficiency of Evidence
Campbell’s eighth proposition claims that the state’s evidence was legally
insufficient to support convictions on Count One.
In reviewing a record for sufficiency, “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
19
reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319,
99 S. Ct. 2781, 2788-2789, 61 L. Ed. 2d 560, 573; accord State v. Jenks (1991), 61
Ohio St. 3d 259, 273, 574 N.E.2d 492, 503.
Campbell argues that the state failed to prove aggravated murder under R.C.
2903.01(A) as charged in Count One of the indictment. Specifically, Campbell
contends that the state failed to prove prior calculation and design.
We conclude that the jury could reasonably find that Campbell killed
Charles Dials with prior calculation and design. Two items of evidence in
particular lead to this conclusion.
First, Campbell admitted to his interrogators that he “lied to” Dials at the
outset of the kidnapping when he told Dials he did not want to hurt him. Thus, the
jury could reasonably infer that Campbell had already decided to kill Dials at the
very beginning of the crime.
Campbell offers a different interpretation of this statement. He argues that
he meant only that “in retrospect, his statement to Dials became a lie after he shot
him.” Suffice it to say that the jury was free to reject this interpretation.
Second, Campbell told Dials to get down on the floorboard of the truck, then
shot him twice at close range in the face and neck. This bespeaks a calculated,
execution-style murder. See State v. Palmer (1997), 80 Ohio St. 3d 543, 570, 687
N.E.2d 685, 707-708.
20
In two recent cases, the firing of shots into a victim’s head at close range
was crucial evidence on the basis of which we affirmed jury findings of prior
calculation and design. Palmer, supra; State v. Goodwin (1999), 84 Ohio St. 3d
331, 344, 703 N.E.2d 1251, 1263. And in State v. Keenan (1998), 81 Ohio St. 3d
133, 689 N.E.2d 929, after kidnapping his victim and driving around holding him
at knifepoint, the defendant drove him to a remote area and ordered him to “tilt his
head back” before cutting his throat. “This sequence of events,” we held, “simply
is not consistent with a spur-of-the-moment killing.” 81 Ohio St. 3d at 140, 689
N.E.2d at 939.
Other factors also support a finding of prior calculation and design.
Campbell armed himself with Deputy Harrison’s pistol before he commandeered
Dials’s truck; the likelihood of violence in the kidnapping was commensurately
high. He carefully chose the site of the murder: his confession states that he
“drove around” the rear of the K-Mart “about three different times” before parking.
Nor was this the sort of brief, explosive situation in which courts usually
find evidence of prior calculation and design to be insufficient. See, e.g., State v.
Reed (1981), 65 Ohio St. 2d 117, 19 O.O.3d 311, 418 N.E.2d 1359; State v. Mulkey
(1994), 98 Ohio App. 3d 773, 649 N.E.2d 897; State v. Davis (1982), 8 Ohio
App.3d 205, 8 OBR 276, 456 N.E.2d 1256. Dials did not frighten or provoke
Campbell. This was no “instantaneous eruption,” State v. Jenkins (1976), 48 Ohio
21
App.2d 99, 102, 2 O.O.3d 73, 75, 355 N.E.2d 825, 828. The murder of Charles
Dials culminated a kidnapping that lasted over two hours. Cf. Keenan, supra;
State v. D’Ambrosio (1993), 67 Ohio St. 3d 185, 196, 616 N.E.2d 909, 918.
We conclude that the record contains evidence sufficient to support the
jury’s finding of prior calculation and design. We therefore reject Campbell’s
claim of insufficient evidence.
Under this proposition of law, Campbell also claims that the jury’s verdict of
guilty was against the manifest weight of the evidence. See R.C. 2953.02.
However, his arguments regarding prior calculation and design are no more
persuasive in this context than they were in the context of his insufficiency claim.
This simply is not a case where “the jury clearly lost its way” and “the evidence
weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App. 3d
172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721.
Campbell’s eighth proposition of law is overruled.
V. Firearm Specification
In his twenty-third proposition, Campbell contends that the state failed to
prove his guilt of the firearm specification to Count Seven (aggravated robbery of
Deputy Harrison).
R.C. 2941.145 provides that “[i]mposition of a three-year mandatory prison
term upon an offender under division (D)(1)(a) of section 2929.14 of the Revised
22
Code is precluded unless the indictment, count in the indictment, or information
charging the offense specifies that the offender had a firearm on or about the
offender’s person or under the offender’s control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the offender possessed
the firearm, or used it to facilitate the offense.”
Campbell raises an issue of statutory construction. The theft offense that is
the basis of the Count Seven aggravated robbery charge was the theft of Harrison’s
service pistol. But Harrison’s pistol is also the firearm whose possession by
Campbell supports his conviction of the R.C. 2941.145 specification. Campbell
argues that the firearm specification “never applies when the firearm used for the
specification is the object of the theft itself, and when the stolen firearm is the only
firearm involved.”
Campbell contends that when he stole Harrison’s gun, he did not have a
firearm on his person or under his control. That is clearly wrong. At the time he
took the gun, he was committing a theft, and he obviously had the gun “on or about
[his] person or under [his] control.”
However, the R.C. 2941.145 specification also requires that the offender
must have “displayed” the firearm, “brandished” it, “indicated that [he] possessed”
it, “or used it to facilitate the offense.” Campbell did not use the gun “to facilitate”
the theft.
23
However, “the offense”—i.e., the aggravated robbery—includes the flight
immediately after the theft. Aggravated robbery does not consist solely of
committing or attempting a theft offense while doing one of the acts listed in R.C.
2911.01(A)(1) through (3); it includes “fleeing immediately after the attempt or
offense” while committing one of those acts. R.C. 2911.01(A). Thus, if Campbell
did “display,” “brandish,” “use,” or “indicate that [he] possesse[d]” a “deadly
weapon” while fleeing immediately after he stole it from Harrison, he was engaged
in aggravated robbery during his flight. R.C. 2911.01(A)(1). And if that deadly
weapon was also a firearm for purposes of R.C. 2941.145, and Campbell used it
“to facilitate the offense”—which includes his flight—then it follows that he was
guilty of the firearm specification.
The jury could infer that Campbell used the gun to commit the carjacking.
That means he used it to facilitate his flight immediately after the theft, which in
turn means he used it to facilitate the aggravated robbery. Therefore, he was
properly convicted of the firearm specification set forth in R.C. 2941.145. His
twenty-third proposition is overruled.
VI. Admissibility of Confession
In his fourth proposition of law, Campbell claims that his confession was
involuntary, primarily because police abused him during his arrest. The trial court
24
heard his motion to suppress the confession and denied it; Campbell contends that
the denial was erroneous.
“In deciding whether a defendant’s confession is involuntarily induced, the
court should consider the totality of the circumstances * * *.” State v. Edwards
(1976), 49 Ohio St. 2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph two of the
syllabus. However, “ ‘police overreaching’ is a prerequisite to a finding of
involuntariness. Evidence of use by the interrogators of an inherently coercive
tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or
sleep) will trigger the totality-of-the-circumstances analysis.” State v. Clark
(1988), 38 Ohio St. 3d 252, 261, 527 N.E.2d 844, 854, quoting Colorado v.
Connelly (1986), 479 U.S. 157, 163, 107 S. Ct. 515, 520, 93 L. Ed. 2d 473, 482.
The totality of the circumstances includes “the age, mentality, and prior
criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the
existence of threat or inducement.” Edwards, supra, 49 Ohio St. 2d 31, 3 O.O.3d
18, 358 N.E.2d 1051, paragraph two of the syllabus.
In his confession, Campbell told detectives that when he was arrested, a
police officer sprayed Mace into his face, even though Campbell was helpless and
making no attempt to resist. According to Campbell, the same officer told him,
“When you go back to the Workhouse, you’re dead.” Moreover, Campbell told the
25
detectives, another officer struck him three times in the head as he was being
transported to jail, then said, “If I wasn’t getting out of this van going back to my
car I’d whip your a* * in this van, what could you do about it?”
During interrogation detectives tried to allay Campbell’s fears by pointing
out that police brutality is investigated by the internal affairs bureau, that there are
cameras in jails, and that officers “can’t do the sort of things that was done back 25
years ago.” They promised to keep him as safe as they could and pointed out that
“it looks bad for us” to have prisoners beaten.
During the suppression hearing, Campbell introduced no evidence to
corroborate his videotaped accusations of police misconduct.
The trial court made no express finding as to whether Campbell told the
truth about being mistreated during his arrest. However, the court did find that all
of the Edwards factors were in the state’s favor, specifically including “the
existence of physical deprivation or mistreatment.” Moreover, the trial court found
that Campbell “was more than willing” to confess, and that no pressure was put on
him to do so. We think it evident that the trial judge simply did not believe
Campbell’s assertions and did not believe any physical deprivation or mistreatment
occurred.
Credibility determinations are made by the trier of fact, as much in a
suppression hearing as in the trial itself. State v. Fanning (1982), 1 Ohio St. 3d 19,
26
20, 1 OBR 57, 58, 437 N.E.2d 583, 584. Nothing in the record provides any basis
for overruling the trial judge’s credibility determination here. Nothing
corroborates Campbell’s claim of mistreatment.
The trial court found that Campbell “was not intoxicated * * *, having only
had one 40 oz. beer three hours prior” to the interrogation. This finding was based
both on Campbell’s statement and on the trial court’s viewing of the videotape,
which showed “no indication whatsoever” of intoxication.
Campbell was interviewed at 9:00 p.m., more than five and one-half hours
after the latest time he could have consumed any beer. (The empty bottle was left
in Dials’s truck, which Campbell abandoned sometime between 2:30 and 3:30.)
Campbell argues that he may have had more than the single forty-ounce beer
mentioned in his confession, because two empty bottles were found in the truck.
But, in his highly detailed confession, Campbell said that he drank only one bottle;
he never mentioned drinking a second, and there is no evidence that he did.
(Campbell did say that he bought a second bottle of beer after killing Dials, but he
said he had no time to drink it. That bottle was later found in Katie Workman’s
car. It was unopened.) Thus, the record supports the trial court’s finding that
Campbell was not intoxicated.
The court further found that Campbell “was aware of his Miranda Rights”
and that the interrogation was “moderate” in length and intensity and “friendly”
27
and “congenial” in tone. Moreover, the trial court found that “there were no
threats or inducements whatsoever to the Defendant to make his statements.”
The record supports the trial court’s findings and compels the conclusion
that police used no coercive tactics to obtain Campbell’s confession. Campbell’s
fourth proposition is therefore overruled.
VII. Prosecutorial Misconduct
In his ninth proposition, Campbell raises numerous allegations of
prosecutorial misconduct.
Voir Dire
In voir dire, the prosecutor stated that aggravating circumstances were the
kinds of things that might make jurors feel that death was the appropriate penalty.
Campbell contends that the prosecutor thereby exposed the jury to nonstatutory
aggravating circumstances. But, see, State v. Tyler (1990), 50 Ohio St. 3d 24, 32,
553 N.E.2d 576, 588. However, Campbell did not object, so the point is waived.
The prosecutor did err slightly by stating that the aggravating circumstances
were “very similar” to the specifications. As Campbell notes, the R.C. 2929.04(A)
death specifications set forth in the indictment are the aggravating circumstances.
However, Campbell did not object to this misstatement at the time. Absent plain
error, this issue is also waived.
28
We find no plain error. The penalty-phase instructions correctly identified
the specific aggravating circumstances that the jury was required to weigh. The
prosecutor’s misstatement several days earlier in voir dire cannot be said to have
clearly determined the outcome of the penalty phase. See State v. Campbell,
supra, 69 Ohio St.3d at 51, 630 N.E.2d at 352.
In death-qualifying the jury, the prosecutor asked veniremen whether they
would be able to impose death in this particular case if the state proved that
aggravation outweighed mitigation. We disagree with Campbell’s claim that this
was error. See State v. Rogers (1985), 17 Ohio St. 3d 174, 178, 17 OBR 414, 418,
478 N.E.2d 984, 990; Tyler, 50 Ohio St. 3d at 32, 553 N.E.2d at 588.
Guilt-Phase Evidence
Prosecution witness Ken Gangloff was the municipal court cashier to whom
Dials paid his fine. In his testimony, Gangloff read Dials’s height, weight, and
birthdate from Dials’s ticket. He quoted Dials as saying that he paid late because
he “just now got the money together.” He also characterized Dials as “a very well-
mannered, nice young man.” Appellant contends that this testimony was victim-
impact evidence improperly adduced in the guilt phase. See Tyler, supra, 50 Ohio
St.3d at 35-36, 553 N.E.2d at 591.
However, at trial Campbell objected only to Gangloff’s statement that Dials
was a nice, well-mannered young man. The trial court sustained that objection and
29
told the jury, “It’s not relevant.” Thus, the error was cured. Campbell did not
object to, and hence waived any objection to, Gangloff’s other testimony.
Guilt-Phase Arguments
Campbell identifies four instances of alleged prosecutorial misconduct in the
guilt-phase closing argument. However, he did not object at trial to any of the
arguments he complains of now and thus cannot prevail absent plain error. None
of the instances of alleged misconduct, either singly or cumulatively, was serious
enough to show that the verdict clearly would have been otherwise but for the
error.
Penalty-Phase Cross-Examination
Campbell contends that the state improperly cross-examined his
psychological expert, Dr. Jeffrey Smalldon, by eliciting (over defense objections)
facts about the murder of Dials, including crimes against Katie Workman, and
about a 1967 conviction resulting from Campbell’s shooting a state trooper.
However, Smalldon’s direct examination discussed the facts of the Dials
murder and the shooting of the trooper. In fact, Smalldon repeated Campbell’s
claim that he had not shot the trooper. The court therefore properly overruled
Campbell’s objections to the cross-examination.
Campbell complains that the state diminished the mitigating value of his
antisocial personality disorder by eliciting Smalldon’s testimony that many people
30
suffer from antisocial personality disorder yet do not commit crimes. However,
since the defense had raised the disorder as a mitigating factor, the prosecutor
could explore what mitigating value the disorder might have, and his question
related to that issue.
Finally, Campbell complains that the state elicited that Campbell was
currently ineligible for parole (that is, on his life sentence for the prior murder)
until 2085. Campbell argues that this was improper because it suggested that a life
sentence would not be any additional punishment in this case. Campbell does not
explain why that is improper, however.
Penalty-Phase Closing Arguments
The defense introduced evidence of Campbell’s good behavior in prison and
argued to the jury that it was mitigating. The state countered by arguing that
Campbell’s main concern was to get out of prison, that Campbell had behaved well
because he hoped for parole but could not be counted on to do so if facing a life
sentence with little likelihood of parole.
In making this point, the prosecutor reminded the jury that Campbell already
had a life sentence with a parole-eligibility date of 2085 (assuming revocation of
his current parole). The state argued that since Campbell would have no hope of
parole, he was unlikely to adjust well to prison life, regardless of what he had done
during his earlier incarceration.
31
Campbell contends that the state’s argument improperly “converted
Campbell’s good behavior in prison against him.” We disagree. This is a dispute
about what inferences the jury should draw from the facts adduced at the
mitigation hearing. The defense asked the jury to infer that Campbell’s previous
good prison conduct said something good about his character. The state had an
equal right to argue that it did not, but simply represented an effort to win his
freedom.
Campbell waived nearly all of the errors alleged in this proposition of law.
Those preserved at trial lack merit. Accordingly, Campbell’s ninth proposition is
overruled.
VIII. Change of Venue
In his fifth proposition, Campbell contends that pretrial publicity so
pervaded the community that a fair trial was impossible; therefore, the trial court
should have ordered a change of venue sua sponte. However, Campbell waived
this issue by failing to request a change of venue. State v. Chandler (1984), 19
Ohio App. 3d 109, 112, 19 OBR 197, 200, 483 N.E.2d 192, 196. See, generally,
State v. Williams, supra, 51 Ohio St. 2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.
IX. Ineffective Assistance of Counsel
In his sixth proposition of law, Campbell contends that his trial counsel
rendered ineffective assistance. To prevail, he must show deficient performance,
32
i.e., performance falling below an objective standard of reasonable representation,
and prejudice, i.e., a reasonable probability that but for counsel’s errors, the result
of the proceeding would have been different. Strickland v. Washington (1984),
466 U.S. 668, 687-688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693,
698. See, also, Williams v. Taylor (2000), 529 U.S. 362, ___, 120 S. Ct. 1495,
1511-1512, 146 L. Ed. 2d 389, 416; State v. Bradley (1989), 42 Ohio St. 3d 136, 538
N.E.2d 373.
Campbell contends that his attorneys were deficient in failing to move for
change of venue. However, the record before us does not show the pervasive
publicity about which Campbell complains. (The appendix to Campbell’s brief
includes newspaper stories concerning the crime. These are outside the record, and
we cannot consider them. See State v. Phillips [1995], 74 Ohio St. 3d 72, 80, 656
N.E.2d 643, 655, quoting State v. Ishmail [1978], 54 Ohio St. 2d 402, 8 O.O.3d
405, 377 N.E.2d 500, paragraph one of the syllabus.) Hence, on direct appeal, we
can evaluate neither the performance of Campbell’s attorneys nor the prejudice that
may have resulted from their failure to request a change of venue.
Campbell accuses his counsel of “disparaging” him by placing “undue
emphasis on the aggravated murder” at voir dire and describing it in such terms as
“terrible,” “horrendous,” “gruesome,” “senseless.” However, it is difficult to
discuss this crime without using such words. Even Campbell’s present counsel, in
33
their brief, call it “infamous,” “sordid,” and “horrible.” Campbell’s counsel may
have sought to impress the jury with their candor, hardly an unreasonable tactic.
The defense strategy throughout was to offer no defense and concentrate on
saving Campbell’s life. A number of Campbell’s complaints about counsel’s
performance stem from this strategy. Thus, its rationality must be evaluated.
“Concessions of guilt, in any form, are among the most troublesome actions
a defense counsel can [t]ake * * *.” State v. Goodwin (1999), 84 Ohio St. 3d 331,
336, 703 N.E.2d 1251, 1258. Nevertheless, such concessions are not per se
ineffective but must be analyzed under Strickland for deficiency and prejudice.
See Goodwin at 336-339, 703 N.E.2d at 1258-1260.
Campbell’s guilt was clear. He confessed at length; defense counsel tried to
suppress that confession, but failed. Corroborating evidence sealed his guilt. Dials
was shot with the same gun Campbell had stolen from Harrison less than three
hours before. Campbell’s palm print was found in Dials’s truck. Campbell told
Katie Workman that he had “just killed one man.”
Campbell’s counsel stated that he had discussed the trial strategy with
Campbell, and that Campbell would have pleaded guilty had the law allowed him
to try the penalty phase to a jury after such a plea. Since Campbell had to undergo
a jury trial on guilt to get one on penalty, counsel tried “to maintain * * *
credibility with this jury” by “let[ting] them know that we’re not contesting the
34
charges.” In closing argument, counsel emphasized that Campbell “accepts
responsibility for what he did.”
However, Campbell contends that his lawyers abandoned available defenses.
First, he contends that they should have contested the issue of prior calculation and
design. Although counsel did not expressly concede the existence of prior
calculation and design, nor did they argue that the state had failed to prove it.
(They did ask for an instruction on murder as a lesser included offense, but it was
refused.) Campbell contends that had counsel contested prior calculation and
design, he might have been acquitted of aggravated murder on Count One.
To the contrary, however, we conclude that it would have been difficult to
raise a reasonable doubt as to prior calculation and design. Campbell confessed
that he “lied to” Dials when he said he would not hurt him. Moreover, he told
Dials to get on the floorboard before shooting him twice in the head at close range.
But even had the suggested strategy had any chance of prevailing as to
Count One, it would have done no good at all on the three felony-murder counts,
for prior calculation and design was not an element of those counts. Thus,
counsel’s strategy was rational. Moreover, counsel discussed in advance with
Campbell the strategy of not contesting guilt. Even where counsel admits his
client’s guilt, the client “can hardly complain that his counsel was ineffective if he
35
freely and knowingly consented to the trial strategy.” Wiley v. Sowders (C.A.6,
1982), 669 F.2d 386, 389.
In addition to showing that his counsel pursued a professionally
unreasonable strategy, Campbell must show that the errors of his counsel
prejudiced him. That he cannot do. Count One was merged into the felony-
murder counts, and thus cannot be a source of prejudice. Prior calculation and
design was not an issue as to the felony-murder counts, so the failure to contest it
was not prejudicial as to them.
Campbell also contends that his counsel could have argued voluntary
intoxication because Campbell drank a forty-ounce beer before shooting Dials.
But voluntary intoxication negates intent only where it renders the defendant
unable to form intent. State v. Fox (1981), 68 Ohio St. 2d 53, 54-55, 22 O.O.3d
259, 260, 428 N.E.2d 410, 411-412; see, also, State v. Jackson (1972), 32 Ohio
St.2d 203, 206, 61 O.O.2d 433, 434, 291 N.E.2d 432, 433, quoting Wertheimer,
The Diminished Capacity Defense to Felony-Murder (1971), 23 Stanford L.Rev.
799, 805. The guilt-phase evidence leaves no room for doubt that this was an
intentional killing. Moreover, Campbell never claimed in his confession that he
was drunk during the crime, and nothing in the record supports his present claim
that he “may have consumed more than one” bottle of beer. The record does not
36
show that counsel either performed deficiently or prejudiced Campbell by failing
to pursue a voluntary-intoxication defense.
Campbell contends that counsel’s voir dire statements prejudged his guilt.
Yet the statements were consistent with counsel’s strategy of conceding guilt and
trying to save Campbell’s life, and were not prejudicial.
Campbell also contends that it was ineffective assistance for his counsel to
try the R.C. 2929.04(A)(5) specification (prior murder conviction) to the jury
instead of the judge.2 But that too was consistent with counsel’s strategy. Since
guilt was not contested, jury knowledge of the prior murder could not harm
Campbell in the guilt phase.
Campbell complains that his trial counsel failed to cross-examine several
witnesses. But “[t]rial counsel need not cross-examine every witness * * *. The
strategic decision not to cross-examine witnesses is firmly committed to trial
counsel’s judgment * * *.” State v. Otte (1996), 74 Ohio St. 3d 555, 565, 660
N.E.2d 711, 721.
In particular, Campbell complains that his counsel did not cross-examine Dr.
Fardal, the coroner, on his “inconsistent” testimony that Dials died of two gunshot
wounds even though one of the wounds “by itself would not be considered a fatal
wound.” But Fardal’s testimony was not inconsistent: he attributed Dials’s death
to both gunshot wounds but noted that one of them (though “a potential fatal
37
injury”) would not have been immediately fatal by itself, while the other one would
have been. Nor does Campbell explain how exploring this “inconsistent”
testimony would have helped his case. Since Campbell fired both shots, it made
no difference which one was fatal.
Campbell contends that his counsel were ineffective because they failed to
object to alleged prosecutorial misconduct and instructional errors. However, in
one instance counsel did object. As for the others, no valid objections were
available under existing law.
Campbell contends that his counsel should have objected to the prosecutor’s
argument. However, a reasonable attorney may decide not to interrupt his
opponent’s closing argument. See State v. Keene (1998), 81 Ohio St. 3d 646, 668,
693 N.E.2d 246, 264.
Campbell contends that his counsel should not have discussed penalty in
their guilt-phase closing argument. Although punishment is not the issue in the
guilt phase, the argument was not an error by counsel but part of a consciously
adopted, rational strategy to concentrate on saving Campbell’s life.
Campbell contends that counsel pursued a counterproductive penalty-phase
strategy. He cites their introduction of Defense Exhibit B, a videotape showing the
precautions the Franklin County Jail was taking to prevent another escape.
According to Campbell, the video raised the issue of future dangerousness.
38
However, given the facts, counsel could reasonably fear that future dangerousness
would be on the jurors’ minds no matter what. Hence, it was logical to try to allay
that concern by showing that precautions can be taken to prevent Campbell from
making another escape.
Next, he argues that the defense should not have introduced Campbell’s
prison records. However, Dr. Smalldon consulted and relied upon those records in
diagnosing Campbell. Campbell does not contend that the defense should have
dispensed with Smalldon’s testimony, which was critical to the case for life, just to
keep his prison records out of the trial.
Next, he argues that no rational attorney would attempt to present good
behavior in prison as a mitigating factor in a case like this, where the murder was
committed after the defendant’s escape from jail. We disagree. Reasonable
attorneys could easily conclude that no legitimate mitigating factor should be
withheld from the jury.
Next, he argues that counsel’s attempt to shift blame to Deputy Harrison
alienated the jury. This speculative argument does not establish prejudice.
Next, he claims that defense counsel failed to prepare Dr. Smalldon
adequately as a witness. Smalldon admitted that he diagnosed Campbell’s
personality disorder before he had reviewed all pertinent records. But it is not
clear that this was counsel’s fault. Smalldon was the expert psychologist, and he,
39
not counsel, was qualified to decide when he had adequate information to make a
diagnosis.
Next, Campbell claims that the record does not show that counsel advised
him to make an unsworn statement. But neither does it show that they failed to. It
is Campbell’s burden to “show that counsel’s performance was deficient.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed. 2d at 693. Moreover, we
cannot say that it is always best for a defendant to make an unsworn statement, and
Campbell fails to explain why his counsel should have advised him to do so here.
Finally, Campbell complains that his counsel failed to correct the trial
court’s misapprehension that Campbell had no right to allocution on the capital
counts. Our disposition of his first proposition of law negates any prejudice from
this error.
Campbell’s sixth proposition of law is overruled.
X. Guilt-Phase Instructions
In his sixteenth proposition, Campbell asserts that the trial court erred by
refusing to instruct on murder as a lesser included offense of Count One,
aggravated murder with prior calculation and design.
R.C. 2903.02, murder, is a lesser included offense of R.C. 2903.01(A),
aggravated murder with prior calculation and design. State v. Spirko (1991), 59
Ohio St. 3d 1, 33, 570 N.E.2d 229, 263. But a court must charge on a lesser
40
included offense “only where the evidence presented at trial would reasonably
support both an acquittal on the crime charged and a conviction upon the lesser
included offense.” State v. Thomas (1988), 40 Ohio St. 3d 213, 533 N.E.2d 286,
paragraph two of the syllabus. Given that there is sufficient evidence to prove that
Campbell killed Dials with prior calculation and design, it was not error to deny a
jury instruction on the lesser included offense of murder. Campbell’s sixteenth
proposition, therefore, is overruled.
In his tenth proposition of law, Campbell contends that the trial court’s
instruction on aggravated murder was circular because the instruction defined prior
calculation and design in terms of purpose. Campbell contends that, in effect, this
instruction told the jury to convict him of aggravated murder if it found that he
killed purposefully.
Campbell’s argument is incorrect. The instruction cannot be reasonably
understood as equating prior calculation and design with purpose. The instructions
made it clear that “prior calculation and design” is more than simply purpose, with
language such as this:
“A person acts with prior calculation and design when by engaging in a
definite process of reasoning he forms a purpose to kill and plans the method he
intends to use to cause death.
41
“The circumstances surrounding the homicide must show a scheme designed
to carry out the calculated decision to cause the death. No definite period of time
must elapse and no particular amount of consideration need be given, but acting on
the spur of the moment or after momentary consideration of the purpose to cause
death is not sufficient.” (Emphasis added.)
These instructions make clear to any reasonable juror that purpose to kill is
not the same thing as prior calculation and design and does not by itself satisfy the
mens rea element of R.C. 2903.01(A). Therefore, Campbell’s tenth proposition is
overruled.
In the guilt phase, the trial court instructed the jury: “You may not discuss or
consider the subject of punishment. Your duty is confined to the determination of
the guilt or innocence of the Defendant.” (Emphasis added.) In his fifteenth
proposition, Campbell contends that this instruction asked the jury to determine
whether Campbell was innocent, when it should have been considering only
whether the state had proved him guilty. According to Campbell, this shifted the
burden of proof from the state to him. However, Campbell did not object at trial.
This waived the alleged error. See, generally, State v. Long (1978), 53 Ohio St. 2d
91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph one of the syllabus.
42
No plain error exists here. An instruction “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.
The trial court instructed that Campbell was “presumed innocent unless and
until his guilt is established beyond a reasonable doubt,” and “must be acquitted *
* * unless the State produces evidence which convinces you beyond a reasonable
doubt of every essential element of the offense.” (Emphasis added.) Further, the
trial court instructed the jury, as to each individual offense and each specification,
to convict if it found that “the State of Ohio has proved beyond a reasonable doubt
all of the elements of the offense,” and to acquit if it found that “the State of Ohio
has failed to prove beyond a reasonable doubt any of the elements of the offense.”
In explaining the verdict forms, too, the trial court repeatedly told the jury that it
must find that the state had proved Campbell’s guilt in order to convict and must
return a verdict of not guilty if the state failed to prove any element.
The jury must be presumed to have followed these instructions. Hence,
Campbell cannot show that the jury’s verdict clearly would have been different but
for the alleged error. As a result, plain error does not exist. Long, supra, at
paragraph three of the syllabus. Campbell’s fifteenth proposition is therefore
overruled.
43
The trial court instructed that purpose to kill “may be inferred from the use
of” a deadly weapon. In his seventeenth proposition, Campbell contends that
former R.C. 2903.01(D) required the trial court to tell the jury specifically that this
inference was nonconclusive. That statute provided:
“If a jury in an aggravated murder case is instructed that a person who
commits or attempts to commit any offense listed in division (B) of this section
may be inferred, * * * because the offense and the manner of its commission would
be likely to produce death * * *, to have intended to cause the death of any person
who is killed * * * during the commission of, attempt to commit, or flight from the
commission of or attempt to commit the offense, the jury also shall be instructed
that the inference is nonconclusive * * *.” (Emphasis added.) Am.Sub.S.B. No.
239, 146 Ohio Laws, Part VI, 10425.
Former R.C. 2903.01(D) does not apply, since the trial court never instructed
that the jury could infer purpose to kill from the commission of an underlying
felony in a manner likely to produce death. See State v. Phillips (1995), 74 Ohio
St.3d 72, 100, 656 N.E.2d 643, 668.
Moreover, Campbell never requested such an instruction or called the
alleged error to the trial court’s attention. Hence, any error is waived. Finding no
plain error, we therefore overrule Campbell’s seventeenth proposition of law.
XI. Penalty-Phase Instructions
44
In its penalty-phase instructions, the trial court listed the nature and
circumstances of the offense among the mitigating factors that the jury could
consider. In his twentieth proposition, Campbell contends that the instruction was
erroneous because he had not claimed that the nature and circumstances of the
offense were mitigating factors in this case. According to Campbell, Lockett v.
Ohio (1978), 438 U.S. 586, 604-605, 98 S. Ct. 2954, 2964-2965, 57 L. Ed. 2d 973,
990, forbids the sentencer to consider any mitigating factor other than those the
defendant chooses to proffer.
Campbell did not object to the instruction. Hence, he has waived this issue.
State v. Long (1978), 53 Ohio St. 2d 91, 7 O.O.3d 178, 372 N.E.2d 804. This
proposition of law must therefore be overruled.
In his eighteenth proposition, Campbell argues that the trial court denied him
due process and violated the Eighth Amendment by instructing the jury to consider
in the penalty phase “any evidence relevant to the aggravating circumstance raised
at trial.”
Although we have recognized that R.C. 2929.03(D)(1) permits
reintroduction of much or all of the guilt-phase evidence, State v. Woodard (1993),
68 Ohio St. 3d 70, 78, 623 N.E.2d 75, 81, we have also recognized that some guilt-
phase evidence should be excluded as irrelevant to the penalty determination.
State v. Getsy (1998), 84 Ohio St. 3d 180, 201, 702 N.E.2d 866, 887. Thus, a trial
45
court’s admission of all guilt-phase evidence en bloc is error, for “it is the trial
court’s responsibility, during the penalty phase, to identify and admit only the
evidence relevant to that phase.” State v. Lindsey (2000), 87 Ohio St. 3d 479, 485,
721 N.E.2d 995, 1003.
However, during the penalty phase, Campbell specifically objected only to
the photos of the truck with Dials’s body in it. Thus, he waived any objection to
the readmission of other guilt-phase evidence.
We find that the photos were relevant to the felony-murder aggravating
circumstances. Therefore, “[w]hile the trial court should have exercised its
responsibility to determine the relevance of the evidence admitted, the evidence
contested was neither irrelevant nor prejudicial to the penalty phase.” Id.
Campbell’s eighteenth proposition is overruled.
XII. Sentencing Opinion
In his nineteenth proposition, Campbell contends that his death sentence
should be reversed because of flaws in the trial court’s sentencing opinion.
The trial court noted that Campbell’s siblings, who survived the same
abusive environment he did, grew up to be law-abiding citizens. Also, the court
noted that many people who, like Campbell, have an antisocial personality disorder
do not become criminals and can function in society. Campbell argues that such
comparisons are improper. We disagree. See State v. White (1999), 85 Ohio St. 3d
46
433, 450, 709 N.E.2d 140, 157; State v. Waddy (1992), 63 Ohio St. 3d 424, 452,
588 N.E.2d 819, 839.
The trial court stated that Campbell “has now taken the life of a second
individual in cold blood, and this Court shall not give the Defendant the
opportunity to take a third.” Campbell claims that this improperly gave
aggravating weight to future dangerousness, which is not a statutory aggravating
circumstance and therefore cannot be weighed against a defendant. We think he
misreads the sentencing opinion. The trial court’s statement referred to
Campbell’s prior murder conviction. That conviction is a statutory aggravating
circumstance, and one that the state pleaded and proved in this case. Moreover,
Campbell’s mitigation case rested largely on the likelihood of his making a good
adjustment to prison life, and the court’s statement was also relevant as the
negation of that mitigating factor.
The trial court noted that Campbell “could offer no justification for shooting
Charles Dials.” Campbell points out that mitigating circumstances do not concern
culpability or legal justification; indeed, an act committed with legal justification is
not a crime. However, the sentencing opinion as a whole does not give the
impression that the court believed Campbell’s proffered mitigation deserved
weight only if it constituted a legal justification for killing Dials. Cf. Eddings v.
47
Oklahoma (1982), 455 U.S. 104, 112-113, 102 S. Ct. 869, 876, 71 L. Ed. 2d 1, 9-10.
To the contrary, the opinion carefully considered Campbell’s proffered mitigation.
The trial court did err in using the word “justification.” For clarity’s sake,
trial courts should avoid the word “justify” and its derivatives when discussing
mitigating evidence in capital sentencing opinions. However, our independent
reweighing of aggravation and mitigation can cure this verbal error.
In considering Campbell’s claim that alcohol was a factor in the murder, the
trial court stated that Campbell “only consumed one forty-ounce (40 oz.) bottle of
beer over several hours.” Campbell interprets this as a finding that he “slowly
sipped a single beer over a matter of hours” and contends that there is no evidence
to this effect.
However, the trial court did not say Campbell “slowly sipped” the beer.
Moreover, what the court did say has support in the record. Campbell said that,
after buying the beer, he sat in the K-Mart parking lot “a good 2 hours” before
killing Dials.
Campbell contends that the trial court considered nonstatutory aggravating
circumstances: the assault on Deputy Harrison, the deliberate faking of paralysis,
and the “cold-blooded, senseless” nature of Dials’s murder.
The assault on Harrison was part of Campbell’s escape, which was charged
as an aggravating circumstance. R.C. 2929.04(A)(3). However, the trial court
48
chose to merge the (A)(3) specification into the two felony-murder specifications.
Campbell contends that the assault on Harrison and faking of paralysis thus
became irrelevant. However, both facts remained relevant, because they tended to
refute the defense contention that Campbell was capable of making a good
adjustment to prison.
As for the “cold-blooded, senseless” nature of the murder, the murder is part
of the felony-murder aggravating circumstance. Hence, the nature of the murder
goes to the nature and circumstances of the (A)(7) aggravating circumstance.
Campbell contends that the trial court “improperly converted evidence of
Campbell’s good prison behavior against him.” We disagree. The judge was
explaining why he did not find that behavior impressive as a mitigating factor.
Campbell’s nineteenth proposition is overruled.
XIII. Gruesome Photographs
In his fourteenth proposition, Campbell contends that the state improperly
introduced gruesome photographs at trial. In capital cases, such photographs are
inadmissible unless their probative value outweighs the danger of unfair prejudice,
or the photographs are repetitive or cumulative. See, e.g., State v. Morales (1987),
32 Ohio St. 3d 252, 258, 513 N.E.2d 267, 274. However, whether to admit
photographs alleged to be gruesome is within the trial court’s discretion; hence, we
will not reverse the trial court’s decision unless it amounts to an abuse of that
49
discretion. State v. Maurer (1984), 15 Ohio St. 3d 239, 265, 15 OBR 379, 401, 473
N.E.2d 768, 791.
Campbell cites six photos as improper: State’s Exhibits 17A, 17C, and 17D
(crime scene) and 25A, 25B, and 25C (autopsy). Exhibit 17A, taken from the
driver’s side of the truck, shows Dials’s body. His back is to the camera. The
photo shows no wounds and little blood. It is not gruesome. Nor is 17D, which
shows a few droplets of blood on the truck window. Exhibit 17C is somewhat
gruesome, but not cumulative. It shows Dials’s body from the passenger side; a
large amount of blood is visible, but no wounds can be seen. Exhibit 17C also
shows a coat draped over part of Dials’s body, which corroborates the confession
and is not clearly shown in 17A.
Exhibit 25A is gruesome, but it is the only one showing the entrance wound
in Dials’s neck. Both 25B and 25C show the wound below Dials’s right eye.
Exhibit 25B shows Dials’s face as it came to the morgue, covered with blood. It is
gruesome, but gives the clearest idea of the severity of the wound, and it is the only
photo of Dials’s face with blood on it. Exhibit 25C shows Dials’s face after the
blood was washed off; unlike 25B, it clearly depicts the stippling near the wound
that indicates a shot fired at close range. Exhibits 25B and 25C were not
cumulative or repetitive: each shows something the other does not.
50
Campbell contends that his offer to stipulate to the victim’s identity and
cause of death stripped the photographs of probative value. He is wrong. Maurer,
supra, 15 Ohio St.3d at 265, 15 OBR at 401-402, 473 N.E.2d at 792.
The trial court did not abuse its discretion in admitting the photos at issue
here. Each photo had sufficient probative value to outweigh its prejudicial effect,
and they were not repetitive or cumulative. Therefore, we overrule Campbell’s
fourteenth proposition.
XIV. Proceedings in Defendant’s Absence
In his twelfth proposition, Campbell asserts that his due process right to be
present at all critical stages of trial was violated when the trial court answered a
question from the jury in Campbell’s absence.
A note from the jury asked for clarification of a term in Count Seven,
aggravated robbery. The judge discussed the question with counsel for both
parties, determined the answer, and answered the question by return note.
Campbell’s attorney consented to this being done without Campbell returning to
court.
A defendant has a Fourteenth Amendment due process right to be present at
every critical stage of his trial. Snyder v. Massachusetts (1934), 291 U.S. 97, 54
S. Ct. 330, 78 L. Ed. 674. The question is whether “his presence has a relation,
51
reasonably substantial, to the fulness of his opportunity to defend against the
charge.” Id. at 105-106, 54 S.Ct. at 332, 78 L. Ed. at 678.
Campbell had no right to be present at the legal discussion of how the
question should be answered. United States v. Moore (C.A.7, 1991), 936 F.2d
1508, 1523. Nor did he have a right to be present when the judge sent the note to
the jury room. Although the oral delivery of jury instructions in open court is a
critical stage of trial, see Wade v. United States (C.A.D.C.1971), 441 F.2d 1046,
the trial court here did not instruct the jury in open court; instead, he sent a note. A
defendant benefits from his presence, and may be harmed by his absence, when
instructions are given in open court. See id. at 1050. But these potential benefits
and harms do not exist when the judge merely sends a note to the jury room. We
therefore hold that the sending of the note was not a critical stage of the trial.
Campbell’s twelfth proposition is overruled.
XV. Vagueness Challenge
In his eleventh proposition, Campbell argues that the term “serious physical
harm,” as defined by R.C. 2901.01(A)(5)(a), is unconstitutionally vague, because it
includes “any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment.” The guilt-phase instruction
defining “serious physical harm” included this allegedly vague definition. Since
the jury was instructed that serious physical harm is an element of kidnapping,
52
aggravated robbery, and felonious assault, Campbell contends that his convictions
must be reversed as to all felonious assault, kidnapping, and aggravated robbery
counts, and all felony-murder counts and specifications based on aggravated
robbery and kidnapping.
However, Campbell did not challenge the alleged vagueness and
overbreadth of the statute at trial. Hence, the issue was waived. Campbell’s
eleventh proposition is overruled.
XVI. Settled Issues
In his thirteenth proposition, Campbell contends that double jeopardy
principles preclude punishing him for both felony-murder and the underlying
kidnapping, where the state relies upon the victim’s murder to satisfy the “serious
physical harm” element of kidnapping. However, it is well established that
“felony-murder under R.C. 2903.01(B) is not an allied offense of similar import to
the underlying felony. * * * That being the case, R.C. 2941.25 authorizes
punishment for both crimes, and no double jeopardy violation occurs.” State v.
Keene (1998), 81 Ohio St. 3d 646, 668, 693 N.E.2d 246, 265; see, also, State v.
Logan (1979), 60 Ohio St. 2d 126, 135, 14 O.O.3d 373, 379, 397 N.E.2d 1345,
1352.
We summarily overrule Campbell’s twenty-first proposition of law on
authority of State v. Van Gundy (1992), 64 Ohio St. 3d 230, 594 N.E.2d 604.
53
Campbell’s twenty-second proposition consists of well-worn challenges to
the constitutionality of the death penalty. Campbell waived these claims by failing
to raise them at trial. See State v. Awan (1986), 22 Ohio St. 3d 120, 22 OBR 199,
489 N.E.2d 277, syllabus.
XVII. Independent Sentence Review
In his seventh proposition of law, Campbell contends that the aggravating
circumstances present in this case do not outweigh the mitigating factors beyond a
reasonable doubt and that death is thus not the appropriate sentence. However,
because we are remanding this cause to the trial court for further consideration of
the death sentence, it is premature for us to independently review the
appropriateness of that sentence at this time.
Conclusion
We overrule Campbell’s second through twenty-third propositions of law
(except his seventh) and affirm his convictions. However, we sustain Campbell’s
first proposition of law. Accordingly, we vacate the sentence of death and remand
this cause to the Franklin County Court of Common Pleas for further sentencing
proceedings consistent with this opinion.
Judgment accordingly.
F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS and RESNICK, JJ., concur in part and dissent in part.
54
FOOTNOTES:
1. The 1998 amendments to Crim. R. 32(A) did not affect the substance
of this provision.
2. Under R.C. 2929.022(A), “the defendant may elect to have * * * the
trial judge, if he is tried by jury, determine the existence of [the] aggravating
circumstance [of (A)(5)] at the sentencing hearing.”
__________________
ALICE ROBIE RESNICK, J., concurring in part and dissenting in part. I
concur in the affirmance of the conviction, but I disagree with the majority’s
conclusion that this case must be remanded for resentencing, and would affirm
Campbell’s death sentence. Once again, as in State v. Green (2000), 90 Ohio St. 3d
352, 738 N.E.2d 1208, a majority of this court applies an overly mechanistic
interpretation of Crim.R. 32(A)(1) to a specific set of facts to reach the
unwarranted conclusion that a defendant’s right of allocution was sufficiently
violated to taint the sentencing.
As in Green, I have little disagreement with the general statements made by
the majority about the right of allocution. However, when the proceedings below
are examined for compliance with the specifics of that right, reversal is
unwarranted.
55
The tenor of the majority opinion appears to acquiesce in Campbell’s view,
set forth in his appellate brief, that his trial counsel played a role in causing the trial
judge to erroneously conclude that the allocution right applied only to sentencing
on the noncapital counts, and not to sentencing on the capital counts.
Campbell’s brief states that “[o]n March 27, 1998, the trial court heard
arguments on the mitigating factors. After hearing the arguments of defense
counsel on the mitigating factors, the trial court set the date for sentencing. The
prosecutor then correctly noted that Campbell was entitled to allocution before
sentencing. Defense counsel improperly stated, however, that Campbell was
entitled to allocution on the noncapital counts only. The trial court agreed with
defense counsel.”
At the sentencing on April 3, 1998, the trial court first allowed the state to
select which capital count Campbell would be sentenced on. The state selected
Count Three, so the trial court then merged the other capital counts into Count
Three. The trial court then proceeded directly to deliver its sentencing opinion in
its entirety, accepting the recommendation of the jury and sentencing Campbell to
death. After dealing with matters related to Campbell’s appeal, the trial court
entertained several victim-impact statements, and then, before sentencing on the
noncapital counts, asked both of Campbell’s attorneys whether they had anything
to say. After a short reply, the trial court explicitly said, “Mr. Campbell, do you
56
have anything you want to say to the Court?’ Campbell responded, “No, I don’t,
your Honor.” At that point, the trial court proceeded to sentence Campbell on the
noncapital counts.
I believe that the concepts of invited error, waiver, and harmless error and
lack of prejudice all apply to the circumstances here.
Invited Error
The majority determines that invited error is not present because defense
counsel did not “induce” the error, was not “actively responsible” for it, and “at
worst” acquiesced in it. I disagree. It is necessary for a complete understanding of
the proceedings involved to set out in full the relevant discourse between the trial
court, the prosecutors, and Campbell’s attorneys at the March 27, 1998 hearing,
beginning at the point in the hearing where the parties had concluded their
additional arguments on whether death was the appropriate sentence:
“THE COURT: Thank you very much. I’ll render my decision a week from
today.
“MR. STEAD [assistant prosecutor]: What time was that on the 3rd?
“THE COURT: Let’s say 10 o’clock.
“MR. O’BRIEN [prosecutor]: Thank you, your Honor.
“MR. LUTHER [defense counsel]: Your Honor, at that time there will be no
discussion by counsel. The Court will just come out and render the—
57
“THE COURT: Right. I’ll come out and render my decision and then I
assume, once I’ve rendered my decision on counts One, Two, Three, and Four,
then there will be a sentencing where you will be able to make statements and, of
course, the—I assume the—at that point I can take statements on the—
“MR. LUTHER: On victim impact.
“THE COURT: Mr. Stead, you are looking kind of—
“MR. STEAD: I’m listening to—
“MR. O’BRIEN: I’m just saying that would the Defendant have an
allocution right before the Court announces its sentencing decision on the 3rd[?]
“THE COURT: Yeah.
“MR. LUTHER: Yeah. After you’ve made your decision on Counts One
through Four, then I think we have a right to make a statement in allocution as to
the sentences on the other offenses.
“THE COURT: Right.
“MR. O’BRIEN: And we would have victim impact statements on the other
sentences too.
“THE COURT: That’s what I was just saying. After I render, on One
through Four, then on the second, Counts Five through Fourteen, at that point I will
take statements and there will be a separate sentencing process that would go along
afterwards.
58
“MR. LUTHER: Then you will go ahead and impose the sentence on the
case.
“THE COURT: And I’ll impose the sentence on the other charges also.
Okay. Does that sound all right with everyone?”
I believe that defense counsel’s statement “After you’ve made your decision
on Counts One through Four, then I think we have a right to make a statement in
allocution as to the sentences on the other offenses” could plausibly be viewed as
an affirmative statement that Campbell did not wish to exercise his right to
allocution prior to sentencing on the capital count. It is not clear that Campbell’s
trial counsel was proceeding under the erroneous impression that Crim.R. 32(A)(1)
does not apply to capital cases, and I disagree with the majority’s ready acceptance
of the view of Campbell’s present attorneys on appeal regarding the statement
made by trial counsel. Since the phrasing of Crim.R. 32(A) does not distinguish
between capital cases and noncapital cases, it seems beyond question that the rule
on its face must apply to all criminal cases, and I do not believe that defendant’s
trial counsel was indicating anything otherwise with his statement.
Instead, I read defense counsel’s statement as subject to an interpretation
that his client did not wish to make a statement prior to sentencing on the capital
offenses, but perhaps would wish to make a statement prior to sentencing on the
noncapital offenses. To the extent that there might be some error in the trial
59
court’s failure to address Campbell personally on his right of allocution prior to
sentencing on Count Three, I would find that the error was invited by Campbell’s
trial counsel.
Waiver
Consistent with my view that Campbell invited any error that may have
occurred, I also believe that Campbell’s failure to object in these specific
circumstances waived any claims of error he may have. See State v. Williams
(1977), 51 Ohio St. 2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the
syllabus. Imposing an obligation on the trial court to address the defendant
personally in every circumstance prior to sentencing, even when the defendant has
already expressed a desire not to speak, unnecessarily extends the requirements of
Crim.R. 32(A)(1). That is especially true in this situation, where the trial court
made sure to address the defendant personally before sentencing on the noncapital
counts, and Campbell declined to speak. In State v. Reynolds (1998), 80 Ohio
St.3d 670, 687 N.E.2d 1358, this court in essence adopted a substantial-compliance
approach to this aspect of Crim.R. 32(A)(1). Although the majority states that this
court has “recognized that a trial court’s failure to address the defendant at
sentencing is not prejudicial in every case,” the majority in this case seems to adopt
an absolutist interpretation of the rule that is actually at odds with Reynolds.
Harmless Error/Lack of Prejudice
60
The majority’s conclusion that this case is distinguishable from Reynolds is
unconvincing. In Reynolds, 80 Ohio St.3d at 684, 687 N.E.2d at 1372, this court
focused on several factors to find that the defendant was not prejudiced, stating, “A
court’s error in failing to ask a defendant if he wants to make a statement prior to
sentencing is not prejudicial where, as here, the defendant makes an unsworn
statement in the penalty phase, sends a letter to the trial court, and where defense
counsel makes a statement on behalf of the defendant.”
Obviously, the list of factors in Reynolds is not an exhaustive one, and that
case illustrates that prejudice on this issue must be determined on a case-by-case
basis. One of the Reynolds factors is present in this case, and appears to be even
stronger than in Reynolds, in that defense counsel spoke extensively on Campbell’s
behalf, both in penalty-phase arguments and at the March 27, 1998 hearing, and
were also offered an opportunity to speak at the April 3, 1998 sentencing.
The letter to the judge that the defendant sent in Reynolds is a factor not
present in this case, but I believe that two other factors more than make up for that
one—that Dr. Jeffrey Smalldon’s mitigation testimony repeated statements
Campbell had made to him, and that Campbell was given an opportunity to make a
statement before being sentenced on the noncapital offenses. On balance, I see this
case as quite comparable to Reynolds, with roughly the same degree of prejudice, if
61
not less. I would apply the precedent established in Reynolds to this case and find
harmless error in these circumstances.
Additionally, had Campbell exercised his allocution right at the time he was
addressed personally prior to sentencing on the noncapital counts, he would
potentially have been commenting on Count Three as well. All of the noncapital
counts at trial arose from the same series of events that gave rise to Count Three.
Anything Campbell could have said would have applied to all of the charges
against him, and he could have made “a statement in his * * * own behalf” at that
time. See Crim.R. 32(A)(1).
Finally, had Campbell made such a statement at that time, nothing would
have prevented the trial judge from relying on the statement to reconsider his
earlier sentencing decision on Count Three, since the sentence on Count Three was
subject to modification until it was journalized.
In Reynolds, 80 Ohio St.3d at 684, 687 N.E.2d at 1372-1373, this court
remarked that “[f]ailure to provide a defendant the right of allocution could
constitute reversible error in a future case.” I do not disagree with the general
import of that statement; however, based on the record before us, this case is not
the appropriate future case to fulfill the terms of the Reynolds remark. Since the
majority finds reversible error where it should not be found, I dissent.
DOUGLAS, J., concurs in the foregoing opinion.
62