Executed April 18, 2012 10:42 a.m. by Lethal Injection in Ohio
14th murderer executed in U.S. in 2012
1291st murderer executed in U.S. since 1976
1st murderer executed in Ohio in 2012
47th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Mark Wayne Wiles
W / M / 22 - 49
W / M / 15
State v. Wiles, 59 Ohio St.3d 71, 571 N.E.2d 97 (Ohio 1991). (Direct Appeal)
State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Ohio App. 11 Dist. 1998). (PCR)
Wiles v. Bagley, 561 F.3d 636 (6th Cir. 2009). (Habeas)
A large pizza with pepperoni and extra cheese, hot sauce, a garden salad with ranch dressing, a large bag of Cheetos, a whole cheesecake, fresh strawberries, vanilla wafers and Sprite.
"Since this needs to be happening, truly I pray that my dying brings some solace and closure to the Klima family and their loved ones." He also thanked his family for their love and support. "Finally, the state of Ohio should not be in the business of killing its citizens. May God bless us all that fall short."
Ohio Department of Rehabilitation and Correction
Name: Mark Wayne Wiles
Number: CCI #A189-200
Date of Birth: 3/11/1963
Gender: Male Race: White
Date of Offense: 3/6/82
County of Conviction: Portage
Institution: Southern Ohio Correctional Facility
On April 18, 2012, Mark Wayne Wiles was executed for the 1985 aggravated murder of Mark Klima.
Ohio Department of Rehabilitation and Correction (Clemency Report)
IN RE: MARK WAYNE WILES, CCI #A189-200
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: MARCH 15, 2012
CRIME, CONVICTION: Aggravated Murder and Aggravated Burglary
DATE, PLACE OF CRIME: August 7, 1985 in Rootstown, Ohio
CASE NUMBER: 85CR0098
VICTIM: Mark Klima (age 15)
INDICTMENT: August 16, 1985 Aggravated Murder with two death penalty specifications; Aggravated Burglary (2 Counts)
VERDICT: Guilty as charged.
DATE OF SENTENCE: January 29, 1986
SENTENCE: DEATH; 15-25 Years
ADMITTED TO INSTITUTION: February 14, 1986
JAIL TIME CREDIT: n/a
TIME SERVED: 26 years, 1 month
AGE AT ADMISSION: 22 years old
CURRENT AGE: 49 years old
DATE OF BIRTH: March 11, 1963
JUDGES: Honorable George Martin, Joseph Kainrad, Robert Kent
PROSECUTING ATTORNEY: Kenneth N. Bailey
Cleveland Plain Dealer
"Ohio executes Mark Wiles for 1985 Portage County killing. (AP April 18, 2012, 12:17 PM)
LUCASVILLE, Ohio (AP) — Ohio on Wednesday executed a man for fatally stabbing the 15-year-old son of his former employers during a 1985 farmhouse burglary, marking the state's first execution in six months. Forty-nine-year-old Mark Wiles died by lethal injection at 10:42 a.m., ending an unofficial moratorium on the death penalty that occurred while the state and a federal judge wrangled over Ohio's lethal injection procedures. It was the 47th execution since Ohio resumed putting inmates to death in 1999.
Wiles, looking haggard with a sparse, cropped gray beard and shaven head, stared at witnesses for a few moments when he entered the death chamber. A few minutes later, strapped to the gurney and IV lines inserted into his arms, he raised his head and looked at witnesses again. "Since this needs to be happening, truly I pray that my dying brings some solace and closure to the Klima family and their loved ones," he said. He also thanked his family for their love and support. "Finally, the state of Ohio should not be in the business of killing its citizens," Wiles concluded, reading a statement that the warden held over his head. "May God bless us all that fall short."
Wiles' stomach rose and fell several times and his head moved slightly, then his mouth fell open and he lay still for several minutes before he was pronounced dead.
John Craig, a cousin of Wiles' victim Mark Klima and a witness of the execution, appeared briefly before reporters to respond to Wiles' last words. "It's my opinion that Mark Wiles gave up his citizenship to Ohio when he murdered my cousin and became an inmate, more or less a condemned man," Craig said.
Wiles, who dropped his final appeal last week, told the Ohio Parole Board that he wasn't sure he deserved mercy but he was requesting clemency because he had to. Both the parole board and Gov. John Kasich denied Wiles' request. Wiles' defense team had argued he should be spared because he confessed to the crime, showed remorse and had a good prison record.
Records show that Wiles surprised 15-year-old Mark Klima during a burglary at his family's farmhouse and stabbed him repeatedly with a kitchen knife until he stopped moving. Wiles could easily have escaped the farmhouse after Klima surprised him but instead chose to stab the teen repeatedly, Portage County Prosecutor Victor Vigluicci told the parole board.
A report to the parole board said Wiles had suffered a head injury in a bar 12 days before the slaying in Rootstown in northeast Ohio, and a doctor testified that tests indicate he may have an injury to part of the brain that regulates impulse control. Another doctor agreed that Wiles has a brain injury and said he also has a substance-abuse problem and personality disorder. The parole board earlier this month ruled unanimously that Wiles' execution should proceed because he exploited the kindness of the family, for whom Wiles had been a farmhand, and because his remorse doesn't outweigh the brutality of the crime.
Wiles paced back and forth and was emotional and anxious in his last minutes in his cell a few steps from the death chamber, prisons spokeswoman JoEllen Smith said. The inmate spent the night on the phone, listening to the radio and writing letters, Smith said. He and two sisters and a brother-in-law cried during emotional visits Wednesday morning, and he also said the rosary with his spiritual adviser, a Roman Catholic priest who works at Ohio's death row in Chillicothe.
Wiles did not sleep since arriving at the death house Tuesday morning about 9:45 a.m., Smith said. "He did have a few brief moments where he became emotional upon his arrival, but his overall demeanor has remained the same, which is respectful, cooperative and compliant with our staff," Smith said.
For his special meal Tuesday night, Wiles requested a large pizza with pepperoni and extra cheese, hot sauce, a garden salad with ranch dressing, a large bag of Cheetos, a whole cheesecake, fresh strawberries, vanilla wafers and Sprite, Smith said.
Ohio's most recent execution delays stem from inmates' lawsuits over how well executioners perform their duties. U.S. District Court Judge Gregory Frost sided with inmates last summer and postponed executions while the state updated its procedures. In November, Frost allowed Ohio to put Reginald Brooks to death for killing his three sons in 1982. In the process, executioners deviated slightly from their written execution plan. The changes were minor but angered Frost, who had made his impatience with even slight changes clear. He once again put executions on hold. Two weeks ago, after a weeklong trial over the latest procedures, Frost said the state had narrowly demonstrated it was serious about following its rules. He warned prison officials to get it right the next time.
The state has a review process in place that allows prisons director Gary Mohr to oversee the details and procedures of the execution policy. Before the execution, Mohr said he was "absolutely confident" in the state's ability to carry out the procedure properly. "We have more documentation on this than anything in my 38 years that I've been in this business," Mohr said. "It's the most documented execution in the United States of America
"Inmate apologizes to victim's family before execution." (Thu, April 19, 2012 @ 4:01 a.m.)
COLUMBUS - Mark Wiles apologized to the family of the Rootstown teen he knifed to death more than 25 years ago and spoke out against the death penalty in his final moments before succumbing to a lethal injection. “The state of Ohio should not be in the business of killing its citizens,” he said Wednesday, reading from statement while strapped to a table in the death house of the Southern Ohio Correctional Facility. “May God bless us all that fall short.”
But a cousin of the murder victim later countered Wiles’ words. “With no disrespect to the Wiles family, it is my opinion that Mark Wiles gave up his citizenship of Ohio when he murdered my cousin,” said John Craig, who watched the execution as the lone representative of Mark Klima’s family. “He became an inmate, more or less a condemned man.”
Wiles arrived at the Death House at the Southern Ohio Correctional Facility in Lucasville on Tuesday morning. Wednesday morning, he showered and visited with his sisters and attorneys at his cell front, and he said the rosary and took communion with his spiritual adviser, the Rev. Lawrence Hummer.
He arrived at the death chamber wearing a white shirt and blue pants with a stripe down the side, wearing glasses and with his head and facial hair closely trimmed. He lay motionless on the table as he was strapped down and as staff inserted shunts into veins in his arms that would deliver the lethal-injection drug. He asked for his glasses to be removed before he read his final statement, in which he thanked his family for their support and voiced remorse for his actions.
Akron Beacon Journal
"Man who killed Portage County teen during farmhouse burglary is executed," by Andrew Welsh-Huggins. (Associated Press Updated: April 18, 2012 - 11:16 PM)
LUCASVILLE: The state on Wednesday executed a man for fatally stabbing the 15-year-old son of his former employers during a 1985 farmhouse burglary in Portage County, marking Ohio’s first execution in six months and signaling a possible return to its status as one of the country’s busiest death penalty states.
Mark Wiles died by lethal injection at 10:42 a.m., ending an unofficial moratorium on the death penalty that occurred while the state and a federal judge wrangled over Ohio’s lethal injection procedures. It was the 47th execution since Ohio resumed putting inmates to death in 1999, and the state has 11 more executions scheduled, including June, July, September and November.
Wiles, 49, looking haggard with a sparse, cropped gray beard and shaven head, stared at witnesses for a few moments when he entered the death chamber. A few minutes later, strapped to the gurney and IV lines inserted into his arms, he raised his head and looked at witnesses again. “Since this needs to be happening, truly I pray that my dying brings some solace and closure to the Klima family and their loved ones,” he said. He also thanked his family for their love and support. “Finally, the state of Ohio should not be in the business of killing its citizens,” Wiles concluded, reading a statement that the warden held over his head. “May God bless us all that fall short.”
As the lethal sedative began flowing, Wiles nodded, appeared to be speaking, swallowed, spoke again, then gasped a few moments later. Wiles’ stomach rose and fell several times and his head moved slightly, then his mouth fell open and he lay still for several minutes before he was pronounced dead.
John Craig, a cousin of Wiles’ victim Mark Klima and a witness of the execution, appeared briefly before reporters to respond to Wiles’ last words. “It’s my opinion that Mark Wiles gave up his citizenship to Ohio when he murdered my cousin and became an inmate, more or less a condemned man,” Craig said.
Wiles, who dropped his final appeal last week, told the Ohio Parole Board he wasn’t sure he deserved mercy but he was requesting clemency because he had to. Both the parole board and Gov. John Kasich denied Wiles’ request. Wiles’ defense team had argued he should be spared because he confessed to the crime, showed remorse and had a good prison record.
Wiles was not “the worst of the worst,” and the parole board showed inconsistency in allowing his execution, his public defenders said in a statement. “Just as Mark Wiles accepted responsibility for the horrible murder he committed, Mark accepted the ultimate punishment with grace and dignity,” the statement said.
Records show that Wiles surprised 15-year-old Mark Klima during a burglary at his family’s Rootstown Township farmhouse and stabbed him repeatedly with a kitchen knife until he stopped moving. Wiles could easily have escaped the farmhouse after Klima surprised him but instead chose to stab the teen repeatedly, Portage County Prosecutor Victor Vigluicci told the parole board.
Ohio’s most recent execution delays stem from inmates’ lawsuits over how well executioners perform their duties. U.S. District Court Judge Gregory Frost sided with inmates last summer and postponed executions while the state updated its procedures. In November, Frost allowed Ohio to put Reginald Brooks to death for killing his three sons in 1982. In the process, executioners deviated slightly from their written execution plan. The changes were minor but angered Frost, who had made his impatience with even slight changes clear. He once again put executions on hold.
Two weeks ago, after a weeklong trial over the latest procedures, Frost said the state had narrowly demonstrated it was serious about following its rules. He warned prison officials to get it right the next time. The state has a review process in place that allows prisons director Gary Mohr to oversee the details and procedures of the execution policy. Before the execution, Mohr said he was “absolutely confident” in the state’s ability to carry out the procedure properly. “We have more documentation on this than anything in my 38 years that I’ve been in this business,” Mohr said. “It’s the most documented execution in the United States of America.”
"Ohio executes killer of teen; Mark Wiles stabbed boy 24 times in 1985," by Alan Johnson.
Wednesday April 18, 2012 12:03 PM
LUCASVILLE, Ohio -- More than 26 years after he brutally murdered a Rootstown, Ohio, teenager, Mark Wayne Wiles paid the ultimate price today. Wiles, 49, was executed at 10:42 a.m. at the Southern Ohio Correctional Facility near Lucasville. It was Ohio’s first execution in five months because of a legal battle about the state’s lethal-injection procedures.
Wiles, who looked nervous and haggard after entering the death chamber, reportedly had spent a sleepless night. As he lay on the gurney, a prison staff member removed his glasses at his request, so that he could read his last statement from a piece of paper held in front of his face. "The love and support of my family has sustained and supported me throughout the years," he said. "I love you all. "Since this needs to happen today, I hope my dying brings some solace and closure to the Klima family and their loved ones. "The state of Ohio should not be in the business of killing its citizens. "May God bless us all that fall short."
Wiles' federal public-defender attorneys issued a statement, saying he "accepted the ultimate punishment with grace and dignity." However, they said he was not the "worst of the worst" for whom Ohio's death penalty was intended.
Wiles was convicted and sentenced to be death for the fatal stabbing of Mark Klima, 15, on Aug. 7, 1985. Records show that Wiles, who was out of prison on an aggravated-robbery conviction, killed the 5-foot-tall, 100-pound Klima at the family’s Shakespeare Acres horse farm in Portage County where Wiles had once worked. The kitchen knife that Wiles used to stab Klima 24 times had been used the previous day to cut the cake at a family birthday party. Wiles fled to Savannah, Ga., but quickly turned himself in to police and confessed to the crime. During his original trial, Wiles did not want to be defended. His attorneys, in seeking clemency for him, said Wiles was very remorseful and could never forgive himself for killing Klima.
Courts at all levels rejected appeals filed for Wiles. Gov. John Kasich denied clemency for him last week, siding with the Ohio Parole Board’s 8-0 recommendation. At that point, Wiles ordered his attorneys to stop all legal appeals so his execution could proceed.
For his last meal, Wiles requested a large pepperoni pizza with extra cheese, a bottle of hot sauce, garden salad with ranch dressing, bag of Cheetos, strawberries, vanilla wafers, cheesecake and Sprite.
The execution was the 47th in Ohio since capital punishment resumed in 1999. Gary C. Mohr, director of the state Department of Rehabilitation and Correction, said this morning that because the Wiles case was being so closely watched by the courts, it was "the most documented execution in the United States."
"Ohio executes Mark Wiles for murder of teenage boy in 1985," by Kim Palmer. (Apr 18, 2012 12:28pm EDT)
(Reuters) - Ohio on Wednesday executed a 49-year-old farm hand who murdered a teenage boy after the man was caught stealing money from the youth's farmhouse in 1985. Mark Wiles was put to death by lethal injection at 10:42 a.m. local time at the Southern Ohio Correctional Facility in Lucasville. He is the 14th person executed in the United States this year.
He was sentenced to die for the August 7, 1985, murder of 15-year-old Mark Klima, a top student who aspired to be a doctor. Wiles stabbed the boy 24 times with a kitchen knife, according to an official clemency report. Wiles worked at the Klima family's horse farm in Rootstown in northern Ohio and had been stealing from the family for some time. At the time of the murder, Klima was the only one home, and Wiles was not supposed to be at the residence.
A panel of three judges convicted Wiles the following year, not persuaded by a doctor's testimony that Wiles had suffered a head injury 12 days before the murder that may have affected his impulse control. At his clemency hearing last month, Wiles said he "was not sure he was worthy of clemency." It was denied.
The execution was allowed to proceed after U.S. District Court Judge Gregory Frost lifted an order that had postponed two previously scheduled executions this year. On April 4, Frost denied Wiles' motion to delay his execution, ruling the state had fixed problems with its death penalty protocols.
Prison spokeswoman JoEllen Smith said Wiles requested for his final meal the night before the execution a pepperoni pizza, a bag of cheese puffs, strawberries, a salad with ranch dressing, cheesecake, and a vanilla wafer.
Ohio has executed 47 people since the state resumed executions in 1999. There were 43 executions in the United States in 2011.
In 1985, Mark Wayne Wiles burglarized the Klima family home and killed Mark Klima. In 1982, Wiles went to work as a part-time laborer for Charles and Carol Klima on their horse farm in Rootstown, where they lived with their son Mark. One day in early 1983, the family learned that $200 in cash was missing and the home had been ransacked. That same day, Wiles had reported for work and was the only other person on the farm that day, but he could not be found after the Klimas learned of the missing cash, and he did not return to collect his paycheck or for that matter return to work any longer on the farm.
In the spring of that year, Wiles began serving a 4-to-25 year sentence in an Ohio prison for an unrelated burglary he had committed the previous year. On August 7, 1985, after serving eighteen months of this sentence, Wiles returned to the Klima farm, entered the unlocked house while the family was gone and began to search the house for valuables. While he was still in the house, 15-year-old Mark Klima returned and confronted him. Wiles stabbed the boy 24 times with a 12-inch kitchen knife, stole approximately $260 and fled.
Carol Klima returned home to find her unconscious son lying on the floor with a knife buried in his back. Later that day, Mark Klima died in a hospital emergency room. Wiles initially fled from the authorities. Five days after the murder, however, he turned himself in to the police in Savannah, Georgia, telling them that he was wanted for murder in Ohio. After being informed of his rights, he told the police what he had done and signed a confession admitting that he had killed Mark.
A state grand jury indicted Wiles for aggravated murder and two counts of aggravated burglary—one for the 1985 home invasion, one for the 1983 $200 theft. He waived his right to a jury, and a three-judge panel heard his case. After the guilt phase of the proceedings, the court determined that there was insufficient evidence that he had committed the 1983 burglary but convicted him on the aggravated-murder and the other aggravated-burglary count. After a mitigation hearing, the court determined that neither Wiles' youth (he was 22-years old at the time of the murder) nor his confession outweighed the aggravating circumstances of his crime. The court imposed a death sentence, and the Ohio Court of Appeals and the Ohio Supreme Court affirmed his conviction and sentence. Mark Klima was a straight A student who was about to enter his sophomore year of high school.
UPDATE: The Ohio Parole Board has unanimously rejected a clemency request from Mark Wiles. In a statement, members of te board wrote, “While Wiles does express remorse and admits to committing the offense, that remorse and acceptance of responsibility does not mitigate nor outweigh the brutal attack on a defenseless young man who was beaten and stabbed repeatedly in his own home. Wiles’ remorse, acceptance of responsibility and good institutional conduct do not equate to a substantial enough reason to recommend clemency.” Wiles was uncooperative during an interview with the state parole board earlier this month, telling members that he didn’t deserve clemency and refusing to answer questions. According to documents, “Wiles was noticeably nervous, emotional and seemed overwhelmed by the process. Wiles left the interview room. The board remained several minutes to see if he would change his mind, but prison staff informed the board that Wiles had chosen to leave the building.” Wiles's attorneys had a taped apology from Wiles sent to the family of the murder victim — a move parole board members criticized as insensitive. Mark Klima’s parents turned the recording over to prosecutors without watching it.
Ohio Death Row: Mark Wiles News & Blog
Murdered by the State of Ohio; April 18, 2012
Several reasons why clemency should have been applied to this case:
•Acceptance of responsibility: Mark Wiles fully confessed and does not deny he alone murdered young Mark Klima, an innocent victim, of his selfish greed
•Good behavior in prison: Mark Wiles has been a model inmate. He also has helped a fellow inmate who had a stroke with that fellow’s hygiene and other daily needs.
•Sincere remorse and regret: Mark Wiles has had a gnawing distress from his guilt for the murder of Mark Klima. He has expressed this remorse and regret from the beginning. Mark Wiles would have pled guilty at trial had that been offered to him.
•Mark Wiles is not the “worst of the worst”
• His trial attorneys failed to uncover abuse in his childhood.
• His trial attorneys failed to uncover that he had been under the influence of barbiturates prior to entering the Klima’s house on the day of the murder.
• His attorneys failed to investigate a head injury he sustained twelve days prior to the murder.
Contact: Governor Kasich
Riffe Center, 30th Floor 77
South High Street
Columbus, OH 43215-6108
Phone: (614) 466-3555
Fax: (614) 466-9354
Ohio Attorney General - 2011 Capital Crimes Annual Report
Ohioans to Stop Executions
List of individuals executed in Ohio
A list of individuals convicted of murder that have been executed by the U.S. State of Ohio since 1976. All were executed by lethal injection.
1. Wilford Berry, Jr. (19 February 1999) Charles Mitroff
2. Jay D. Scott (14 June 2001) Vinnie M. Price
3. John William Byrd, Jr. (19 February 2002) Monte Tewksbury
4. Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
5. Robert Anthony Buell (24 September 2002) Krista Lea Harrison
6. Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
7. David M. Brewer (April 29, 2003) Sherry Byrne
8. Ernest Martin (June 18, 2003) Robert Robinson
9. Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
10. John Glenn Roe (3 February 2004) Donette Crawford
11. William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
12. William G. Zuern, Jr. (8 June 2004) Phillip Pence
13. Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
14. Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
15. Adremy Dennis (October 13, 2004) Kurt Kyle
16. William Smith (March 8, 2005) Mary Bradford
17. Herman Dale Ashworth (27 September 2005) Daniel L. Baker
18. William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
19. John R. Hicks (29 November 2005) Brandy Green
20. Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
21. Joseph L. Clark (4 May 2006) David Manning
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
41. Michael Benge (October 6, 2010) Judith Gabbard
42. Frank G. Spisak Jr. (February 17, 2011) Rev. Horace Rickerson, Timothy Sheehan, Brian Warford
43. Johnnie R. Baston (March 10, 2011) Chong Mah
44. Clarence Carter (April 12, 2011) Johnny Allen
45. Daniel Lee Bedford (May 17, 2011) Gwen Toepfert, John Smith
46. Reginald Brooks (November 15, 2011 Reginald Brooks Jr., Vaughn Brooks, Niarchos Brooks.
47. Mark Wayne Wiles (April 18, 2012) Mark Klima
State v. Wiles, 59 Ohio St.3d 71, 571 N.E.2d 97 (Ohio 1991). (Direct Appeal)
Defendant was convicted in the Portage County Common Pleas Court of aggravated murder and aggravated burglary and sentenced to death. Defendant appealed. The Eleventh District Court of Appeals affirmed the conviction and death sentence. Defendant appealed. The Supreme Court held that: (1) corrections officer's awareness of statements made by defendant during his confinement in jail that officer proposed to testify to was imputable to State, and prosecuting attorney accordingly was not in compliance with discovery order when he did not disclose identity of corrections officer as witness in response to defense discovery demand, although nothing in record indicated that prosecutor's office was aware of statements at time of pretrial conference, but admission of such evidence was not reversible error; (2) apparent irregularity in indictment which as originally transmitted to Supreme Court did not include portion of indictment containing grand jury foreman's signature did not warrant reversal of convictions, although it could not be determined when page containing signature became detached and misplaced; and (3) extreme violence employed in commission of murder and its perpetration in home of victim supported conclusion that aggravating circumstance outweighed mitigating factors beyond reasonable doubt in determining whether death penalty should be imposed. Affirmed. Wright, J., concurred in judgment only.
Charles and Carol Klima are owners of Shakespeare Acres, a horse farm in Rootstown, Ohio, where they have resided since 1969. On June 22, 1970, Mark, their only child, was born. Beginning in 1982, the Klimas employed defendant-appellant Mark W. Wiles as a part-time laborer on the farm. In late 1982 or early 1983, Wiles was discovered by Mrs. Klima departing from her home. When asked about his presence in the house, appellant informed Mrs. Klima that he was cold and had entered the home in order to get warm. He was thereafter instructed to turn up the heat in the tack room and use it for that purpose in the future. On another occasion, appellant was found in the garage of the house slumped below an open exterior window. On neither occasion had appellant been given permission to enter the residence.
On the morning of January 19, 1983, appellant reported for work at Shakespeare Acres. At approximately 1:30 p.m., Carol Klima returned to the residence after tending to the horses. When she entered the kitchen she felt a draft but was uncertain from where it originated. After eating lunch, she proceeded to her bedroom whereupon she discovered an open window and the screen thereto on the ground below. Moreover, the doors to the bedroom closet and the drawers to the dresser had been opened. Subsequent investigation revealed that approximately $200 in coin and currency were missing from the residence. Only Carol Klima and appellant were present on the grounds of the farm at the time of the thefts. Despite the fact that he was owed money for work he had performed for the Klimas, appellant never returned to the farm to collect his paycheck.
On August 5, 1985, Mark Klima remarked to his mother that he had seen appellant in the main barn of the estate. Mark Klima mentioned that he had spoken with appellant and that appellant asked Mark whether he recognized him. Mark Klima reportedly stated: “Yes, you're Mark Wiles.” When appellant stated that he wished to speak to Carol Klima, her son directed appellant to the residence. While appellant initially proceeded to the house, when the family dog began to bark he turned around and left.
At approximately 4:30 or 5:00 a.m. on August 7, 1985, appellant arrived at the Klima farm. While obscured in an adjacent field, appellant watched for any activity at the home. Carol, Charles and Mark Klima, Anne Marie O'Brien and Susie and Laura Kerper were present in the Klima residence. Anne Marie and the Kerper girls stayed on the farm to assist in the maintenance of the horses and to receive horseback riding lessons. At approximately 6:00 a.m., Charles Klima left for work. Early that morning, Ms. O'Brien also departed for her place of employment. The remaining members of the household rose around 8:00 a.m. and had breakfast. Thereafter, Susie and Laura left the residence to feed the horses. At approximately 10:15 a.m., Carol Klima also left the residence. Prior to departing, she instructed her son, who was in his bedroom, to close the windows in the house if it began to rain. The doors to the house were left unlocked. Mark Klima apparently left the house shortly thereafter. After appellant observed the Klimas, the Kerpers and O'Brien leave, he entered the house and locked the door. He thereupon rummaged through the bedroom closet and dresser of Carol and Charles Klima and a desk in the living room. As appellant continued searching a china cabinet in the living room for valuables, he was confronted by Mark Klima who had reentered the house. In an ensuing scuffle, appellant stabbed Mark Klima repeatedly with a kitchen knife. Thereafter, appellant departed the residence with approximately $260 and returned to his home.
Meanwhile, after leaving the residence, Carol Klima proceeded to an outdoor exercising area and began to provide horseback riding instruction to Judy Campbell, who had arrived for a lesson. When it began raining, the lesson was moved inside a barn. In the course of the instruction, Susie Kerper approached Carol Klima and informed her that her attempt to retrieve some raincoats from the house was unsuccessful because the house was locked. A short while later the rain ceased and the instruction continued outside. At this time, Susie and Laura Kerper were instructed to return to the house and prepare for an upcoming horse show. They were instructed where to find a key to the house. Shortly thereafter, Laura Kerper returned from the house and informed Carol Klima that Mark was unconscious on the floor covered in blood. Mrs. Klima ran to the house, called medics and attempted to administer artificial respiration to her son. In the course of her attempt to revive Mark, Carol Klima discovered a kitchen knife buried in his back. When the medics arrived, they pulled up Mark's shirt revealing multiple stab wounds in his back. It was later determined by the coroner that two of the twenty-four total wounds were lethal and another two were “possibly lethal.” Mark was transported to the emergency room where he was pronounced dead.
At approximately 4:00 p.m. on August 7, 1985, Chief Detective Duane Kaley and Detective Donald Doak of the Portage County Sheriff's office and Officer Larry Hanks of the Akron Police Department visited the house appellant shared with Gary Benden and Valerie Marshall. The police officers encountered Gary Benden outside the residence and asked to speak with appellant. Benden replied that appellant was inside the residence and, at the request of the officers, returned to the home to notify appellant of their presence. Appellant responded by requesting Benden to tell the officers that he was not home. When appellant was informed that the officers were already aware that he was inside the residence, appellant initially attempted to hide in the basement. At the urging of Benden, he eventually departed the house and approached the police officers. After being apprised of his rights, Wiles spoke with Chief Detective Kaley. During the course of this conversation, appellant denied that he had been to the Klima residence earlier in the day. Appellant remained outside with the officers for approximately forty-five minutes to one hour. At the conclusion of their discussion with appellant, the police officers departed. Shortly thereafter, appellant paid Benden $150 for rent and fled Akron.
On August 12, 1985, appellant contacted the Savannah, Georgia police department, announced that he was wanted for murder in Ohio and wished to surrender to authorities. At approximately 10:25 a.m., Officer Joe John son was dispatched to 35010 Ogeechee Road, whereupon he was approached by appellant who stated that he was the person for whom the officer was looking. Appellant thereafter identified himself. Once his identity was confirmed by the dispatcher, Officer Johnson resumed his conversation with appellant, who stated again that he wished to surrender to face charges for murder. Following this conversation, Officer Johnson requested proof of identification from appellant, who produced his driver's license. The information contained therein was relayed to the police dispatcher who confirmed that a warrant for appellant's arrest was outstanding. Appellant was informed of his rights, handcuffed and placed in the police cruiser for transportation to the station. No conversation occurred between Officer Johnson and appellant during the trip.
At approximately 11:48 a.m. on August 12, 1985, appellant was taken to a conference room at the police station and informed of his rights by Detective J.E. Brinson. Utilizing a form listing these rights, Detective Brinson placed a check mark next to each enumerated right as he read it to appellant and as appellant responded that he understood that right. Appellant then was asked again if he understood his rights and if, with those rights in mind, he still wished to answer questions. Appellant signified his affirmative response by placing check marks and his initials in the appropriate blanks, and then signing the form.
After initially denying any involvement, appellant thereafter described to Detective Brinson and Detective Everett Ragan his commission of the homicide and his activities before, during and after the act. He subsequently repeated his recollections in the presence of a stenographer who later prepared a transcript of the statement. This statement was reviewed by appellant, who acknowledged its accuracy by affixing his signature thereto. At approximately 7:40 p.m. on August 12, 1985, Portage County Detectives Kaley and Doak arrived in Savannah, where they were transported to the police station by Savannah Police Detective Bob Scott. Once at the station, the three officers proceeded to a police interview room in which appellant was waiting. Prior to any questioning, appellant was again advised of his rights. Moreover, appellant was presented with a form apprising him of his rights and he again indicated in writing that he understood them but nevertheless wished to speak with the detectives without presence of counsel. Appellant thereupon repeated the substance of his earlier statements implicating himself in the crime. The conversation between the detectives and appellant was taped and subsequently transcribed.
Appellant thereafter waived extradition and was returned to Ohio. On August 16, 1985, appellant was indicted by the Portage County Grand Jury on one count of aggravated murder and two counts of aggravated burglary. Count One, aggravated murder, contained the following two specifications: (1) appellant was the principal offender in the commission of the murder while committing aggravated burglary in violation of R.C. 2929.04(A)(7), and (2) appellant committed the murder on August 7, 1985 for the purpose of escaping detection, apprehension, trial or punishment for another crime. Count Two, aggravated burglary, contained a specification that appellant had been previously convicted of an aggravated felony. Count Three charged appellant with the commission of aggravated burglary on or about January 19, 1983.
On August 23, 1985, appellant filed a motion to sever Count Three of the indictment from the remaining counts. On September 27, 1985, appellant filed with the Portage County Common Pleas Court a motion to suppress any oral or written statements made by him. Contemporaneously therewith, a motion to increase the burden of proof to a “beyond all doubt” standard was filed by appellant. A hearing on the motion to suppress was held on October 23, 1985 wherein the motion was amended to encompass statements about which the defense had become aware since its filing.
On December 2, 1985, appellant filed a motion for waiver of jury trial. A three-judge panel was appointed by the Chief Justice on December 19, 1985. At a pretrial conference on December 30, 1985, the court inquired of the prosecutor whether discovery had been completed. In response, the prosecuting attorney replied: “There are—apparently there were some statements made by the defendant in jail within the last week or two which we're going to provide to them today.” Later in the colloquy between the prosecutor and the court, the following exchange took place: “THE COURT: It's then complete and you will not offer anything into evidence that has not been given to them as of today? “MR. PLOUGH: As far as I know, your Honor, unless we accidently [ sic ] overlooked something. “THE COURT: No, we're going to go along, we're going to say that as of today you tell me that you have given them discovery. “MR. PLOUGH: That is correct, your Honor. “THE COURT: I don't want you to find something as of tomorrow, because you won't be permitted to use it. That is why I'm asking what you've provided. “MR. PLOUGH: As far as I know, your Honor, we have provided them everything. They have seen everything. * * * ”
On January 2, 1986, the state filed a supplemental disclosure statement pursuant to Crim.R. 16 identifying evidence previously requested by appellant and a notice of intent to use such evidence at trial. Among the witnesses disclosed was Portage County Corrections Officer Keith Jirousek. Also on January 2, 1986, the trial court denied appellant's motion to suppress his pretrial statements, his motion to increase the burden of proof beyond all doubt and his motion to sever Count Three of the indictment.
On January 6, 1986, trial commenced before the three-judge panel of the Portage County Common Pleas Court. Carol Klima was called to testify on behalf of the state. In the course of her testimony, Mrs. Klima stated that two days before his death, her son had related to her how he had spoken to appellant and, in response to appellant's question, was able to identify appellant as Mark Wiles. No objection was interposed as to this testimony.
On January 8, 1986, the state sought to have Keith Jirousek testify as a prosecution witness. Appellant objected, claiming that the failure of the state to provide the name of Jirousek in response to defense requests prior to the December 30, 1985 deadline imposed by the trial court for completion of discovery barred the use of such testimony. Following deliberation by the panel, the objection was overruled and Officer Jirousek was permitted to take the stand. He testified that appellant, during his incarceration, remarked as follows: “ ‘I want transferred out of this fucking jail before I fucking kill someone else.’ ” Appellant objected to this testimony on the basis of relevancy. The objection was overruled. Officer Jirousek further testified that appellant also stated: “ ‘How come you're treating me like a kid or that? Is it because I killed one of your boys?’ ”
No objection was made to this testimony. After the state had completed its case, appellant advanced a motion to dismiss Count Three of the indictment ( i.e., the January 19, 1983 aggravated burglary charge) on the basis of insufficient evidence. This motion was granted by the court.
At the close of evidence, counsel for the respective parties proceeded to closing argument. In the course of his argument to the bench, the prosecuting attorney made the following comments: “I know that this has been a rather lengthy trial for a trial to Court and I ask you to bear with me for just a few more minutes, not for myself, but for Mark Klima, a 15 year old boy. A boy, a son that every parent would dream about having. A four-point student and an accomplished writer. A shy and quiet boy. A boy who liked computers, who hated violence. To sum it up, just an ordinary kid. “A child whose life was snuffed out by an ogre. Ogre. Just like the book he was reading, a man-eating monster, a hideous, brutish person who turned him from this (indicating exhibit), into this.”
Following submission of the case to the court on January 9, 1986, appellant was found guilty of Counts One and Two of the indictment and the specifications relative thereto. On January 27, 1986, the penalty phase of the present action commenced. Following the submission of mitigating evidence, the court, on January 29, 1986, rendered the following determinations: “The Court in accordance with Section 2929.03, Subsection F, makes the following specific findings: “A. We find that the Defendant has established the following mitigating factors: One, the youth of the offender, specifically 22 years of age: two, the confessions of the offender after he surrendered to police was [ sic ] mostly truthful and sincere. “We find that the defendant has not established as mitigating factors the following, paragraphs 1, 2, 3, 5, 6, as set forth in Revised Code Section 2929.04, paragraph B.
“The Court finds that it has been established beyond a reasonable doubt that the aggravating circumstances was [ sic ] that the defendant was the principal offender, and that he killed Mark Klima in the commission of an aggravated burglary of the Klima residence. The defendant killed Mark Klima for the purpose of escaping—escaping detection or apprehension or trial or punishment for the aggravated burglary of the Klima dwelling. “The Court has considered in accordance with 2929.04, Paragraph B, one, the nature and circumstances of the offense; two, the history, character, background of the offender; three, school records and conduct; four, the testimony of officials and records from the Ohio State Reformatory; five, church affiliations; six, drug and alcohol abuse; seven, evidence of remorse; eight, psychological evaluations and opinions; nine, cooperation of the defendant with law enforcement officials and confessions; ten, and all the factors specified in Subsection B(1) through B(7).
“The Court finds beyond a reasonable doubt that the aggravating circumstances of the offense far outweigh the mitigating factors for the following reasons: “One, we find the defendant was the principal offender; two, we find that the defendant entered the private home of the victim for the purpose of committing aggravated burglary; three, we find the defendant also planned the burglary and had planned the burglary for several days prior to making an unlawful entry and previously had made an attempt to commit the offense; four, the defendant stabbed the 15 year old victim repeatedly and brutally with the purpose to kill; five, the defendant killed the victim for the purpose of escaping detection and apprehension for the aggravated burglary; six, the defendant gave no aid or assistance to the victim, fled the residence with money stolen from the Klima residence; seven, the victim was only 15 years of age and in his own home at the time of the stabbing and killing and; eight, the defendant, while relatively youthful, had been previously convicted of aggravated burglary, refused drug and alcohol treatment, displayed defiance of authority and participated in other criminal activity for which he was not apprehended or convicted. “The defendant had been incarcerated in Mansfield Reformatory for approximately a year and a half.
“Nine, the defendant fled the jurisdiction using monies stolen in the burglary of the Klima residence; ten, the Court finds that while the defendant was only convicted of one previous felony, the nature of the felony makes it a significant criminal conviction.” The Eleventh District Court of Appeals conducted a mandatory independent review of the death sentence pursuant to R.C. 2929.05. While the appellate court concluded that the trial court had erred in not merging the two specifications relative to Count One of the indictment, it concluded that the error could be remedied by merger of the specifications prior to conducting its own independent weighing of aggravating and mitigating factors. Despite such merger, the court nevertheless concluded that the single aggravating circumstance outweighed the mitigating circumstances set forth by appellant. Accordingly, the court of appeals affirmed the conviction and sentence of death.
The cause is now before this court upon an appeal as of right.
David W. Norris, Pros. Atty., and Robert A. Durst, Ravenna, for appellee. Randall M. Dana, Ohio Public Defender, S. Adele Shank and Nathan A. Ray, Columbus, for appellant.
In his second proposition of law, appellant argues in essence that the trial court erred by denying his motion to sever Count Three of the indictment ( i.e., the 1983 burglary charge) prior to trial. It is his essential contention that joinder of the 1983 burglary charge with the 1985 offenses was improper.
At the outset it must be observed that “[t]he law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’ ” See State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, 298, quoting State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 314–315, 421 N.E.2d 1288, 1290. Where a defendant claims that joinder was improper he must affirmatively show prejudice. State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d 247, 251. Appellant maintains that there was insufficient evidence to support a conviction on Count Three of the indictment—a claim borne out by the subsequent dismissal of the charge by the three-judge panel at the conclusion of the state's case. It is appellant's further contention that the prosecution was aware of such deficiencies but employed Count Three as a vehicle for presenting to the court otherwise inadmissible evidence concerning the 1983 burglary.
In order to negate the claim that such joinder resulted in prejudice to appellant, the prosecution may demonstrate either (1) that evidence relative to the count subject to joinder would have been admissible in the trial of the remaining counts under the “other acts” portion of Evid.R. 404(B), or (2) that, irrespective of the admissibility of such evidence under Evid.R. 404(B), the evidence as to each count is “simple and direct.” See State v. Lott, supra, at 163, 555 N.E.2d at 298. The latter test focuses on whether the trier of fact is likely to consider “evidence of one [offense] as corroborative of the other * * *.” Dunaway v. United States (C.A.D.C.1953), 205 F.2d 23, 27.
The evidence presented in the case sub judice clearly supports the conclusion that evidence relative to the 1983 burglary played no role in appellant's convictions on the 1985 offenses. It was undisputed that appellant burglarized the Klima home and killed Mark Klima in 1985. Instead, the defense challenged the state's contention that such acts were purposeful. Thus, any evidence relative to the 1983 burglary lacked any nexus with the critical issue in dispute relative to Counts One and Two.
Similarly, the particular evidence adduced at trial was separate and distinct regarding incidents two years apart. The state, in seeking to obtain a conviction on the 1983 burglary charge, relied on the testimony of two former associates of appellant, Lewis Ripley and Christopher Beans. These individuals testified as to statements made by appellant regarding events in 1982 and 1983. In contrast, the evidence adduced to support convictions for the 1985 burglary and homicide was composed, in large part, of confessions given to police by appellant wherein he denied the commission of any prior burglaries.
The conclusion that evidence relative to the 1983 burglary played no role in appellant's conviction for the 1985 crimes is underscored by the disposition made of Count Three by the three-judge panel. Inasmuch as the court dismissed Count Three while convicting on the remaining counts, such disposition “demonstrated its ability to segregate the proof on each charge.” State v. Brooks (1989), 44 Ohio St.3d 185, 195, 542 N.E.2d 636, 645. Appellant's second proposition of law is overruled.
In his third proposition of law, appellant further contends that, while the 1983 burglary charge was dismissed by the three-judge panel, evidence relevant thereto was improperly considered in the sentencing determination. This argument must be rejected. In discounting the mitigating effect of appellant's youth (twenty-two years of age), the trial panel observed from the bench as follows: “ * * * [T]he defendant, while relatively youthful, had been previously convicted of aggravated burglary, refused drug and alcohol treatment, displayed defiance of authority and participated in other criminal activity for which he was not apprehended or convicted.”
While it is certainly arguable that the last reference encompasses the 1983 burglary charge which was subsequently dismissed by the court, consideration of evidence relating to that charge at the sentencing stage does not constitute reversible error. In United States v. Donelson (C.A.D.C.1982), 695 F.2d 583, the federal appellate court observed as follows: “ * * * It is well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted. * * * ” Id. at 590. See, also, United States v. Sweig (C.A.2, 1972), 454 F.2d 181, 184; United States v. Bernard (C.A.4, 1985), 757 F.2d 1439, 1444; United States v. Funt (C.A.11, 1990), 896 F.2d 1288, 1300; State v. Kelly (1979), 122 Ariz. 495, 498–499, 595 P.2d 1040, 1043–1044; State v. Huey (1986), 199 Conn. 121, 126, 505 A.2d 1242, 1245; State v. Frost (Minn.1981), 306 N.W.2d 803, 805–806; 3 LaFave & Israel, Criminal Procedure (1984) 119, Section 25.1; Campbell, Law of Sentencing (1978) 286–287, Section 90. Appellant's third proposition of law is overruled.
In his fourth proposition of law, appellant contends that the trial court abused its discretion in permitting Keith Jirousek to testify despite the failure of the prosecution to disclose the identity of this witness in response to the discovery demand of the defense prior to the December 30, 1985 deadline prescribed by the court for completion of discovery. Jirousek was a corrections officer for the Portage County Sheriff's Department. Over objection, he was permitted to testify regarding statements made by appellant during his period of confinement in the jail. These statements were made on December 10, 1985.
There is nothing in the record to indicate that the office of the prosecuting attorney was aware of these statements at the time of the pretrial conference (December 30, 1985) such as to suggest a willful violation of Crim.R. 16(B)(1)(e) and (D). Nevertheless, Jirousek was aware of these statements at the time they were made. Inasmuch as “[t]he police are a part of the state and its prosecutional machinery,” State v. Tomblin (1981), 3 Ohio App.3d 17, 18, 3 OBR 18, 20, 443 N.E.2d 529, 531, such knowledge on the part of a law enforcement officer must be imputed to the state. State v. Sandlin (1983), 11 Ohio App.3d 84, 89, 11 OBR 136, 141, 463 N.E.2d 85, 90–91. Accordingly, the prosecuting attorney was not in compliance with the December 30 discovery order.
However, Crim.R. 16(E)(3) vests in the trial court the discretion to determine the appropriate response for failure of a party to disclose material subject to a valid discovery request. In State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 453 N.E.2d 689, 691, this court observed that, under such circumstances, “the trial court is vested with a certain amount of discretion in determining the sanction to be imposed for a party's nondisclosure of discoverable material. The court is not bound to exclude such material at trial although it may do so at its option.” Reversible error exists only where the exercise of such authority by the trial court constitutes an abuse of discretion. State v. Parson, supra, at 445, 6 OBR at 487–488, 453 N.E.2d at 691; State v. Apanovitch (1987), 33 Ohio St.3d 19, 26, 514 N.E.2d 394, 402.
In Parson, supra, a tripartite test was set forth to determine whether a trial court abused its discretion in admitting undisclosed discoverable evidence. The syllabus to Parson provides as follows: “Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted.” See, also, State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026.
From a review of the record of the instant case, it is evident that appellant has failed to demonstrate that the violation of Crim.R. 16 by the state constitutes reversible error. While the knowledge of Jirousek of the statements made by appellant is imputable to the prosecution for purposes of determining whether the rule was violated, such imputed knowledge is not sufficient to constitute a willful violation thereof. Instead, the acts of the prosecution itself must be evaluated. Appellant contends that willful violation of the rule on the part of the prosecuting attorney may be inferred from the statements of the chief assistant prosecutor who, appellant claims, admitted at trial that such nondisclosure was for “tactical considerations * * *.” However, a close reading of the trial transcript reveals that the prosecution was referring to the decision to employ Jirousek as a witness for the state, not to a conscious attempt on its part to withhold discoverable material.
Moreover, the chief assistant prosecutor stated at trial that he had disclosed all information about which he was aware at the time of the pretrial conference. The trial court was apparently satisfied that the representation of the assistant prosecutor was worthy of belief. We have no reason to question this conclusion. That the state did not willfully fail to disclose such information is further supported by the efforts taken by the prosecution once the existence of appellant's statements had become known to it. Supplemental discovery was undertaken by the prosecution by the hand delivery of the information to the defense once its existence became apparent. Despite the failure to submit the material by December 30, its delivery to the defense on January 2, 1986 reveals due diligence on the part of the prosecution and a total absence of any tactical advantage obtained by the state as a result of a three-day delay in its production. Even with the delay, the information was provided four days before trial and six days prior to Jirousek's testimony.
Second, it cannot be confidently stated that foreknowledge by the defense of the existence of the statements by December 30 would have benefited its case. It is the contention of appellant that foreknowledge would have permitted the defense to more adequately attack the credibility of such statements. However, a bald assertion to this effect is insufficient to demonstrate that the trial court committed reversible error.
Appellant nevertheless maintains that the late disclosure precluded preparation for such testimony and materially prejudiced his defense. However, the only sanction urged of the trial court by appellant was the exclusion of Jirousek's testimony. Crim.R. 16(E)(3) provides as follows: “If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.” (Emphasis added.)
In State v. Edwards (1976), 49 Ohio St.2d 31, 42–43, 3 O.O.3d 18, 24–25, 358 N.E.2d 1051, 1059–1060, this court concluded that no prejudice to a criminal defendant results where an objection is made at trial to the admission of nondisclosed discoverable evidence on the basis of surprise but no motion for a continuance is advanced at that time. See, also, State v. Weind (1977), 50 Ohio St.2d 224, 235, 4 O.O.3d 413, 419, 364 N.E.2d 224, 232; State v. Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O.3d 448, 451, 383 N.E.2d 912, 915–916. In the instant case, appellant sought the most stringent sanction available for violation of Crim.R. 16 even though a continuance would have remedied any harm resulting therefrom. Since the record reveals that the violation of Crim.R. 16 was not willful, that there exists no demonstration that foreknowledge of the withheld information would have aided appellant's defense and that no prejudice resulted from its nondisclosure, the failure to exclude such testimony does not constitute reversible error. The fourth proposition of law advanced by appellant is therefore overruled.
Appellant contends in his fifth proposition of law that the testimony of Jirousek relative to statements made by appellant while in custody should have been excluded on the basis that they were “irrelevant and inflammatory.” Specifically, appellant maintains that his statements, as related by Jirousek, are too indefinite to be of any probative value. Evid.R. 401 is dispositive of this issue. It provides as follows: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Emphasis added.) The statements of appellant about which Jirousek testified clearly constitute “relevant evidence” as defined in Evid.R. 401. Such testimony need not be conclusive regarding a fact in question. Rather, such evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence * * * more probable * * * than it would be without the evidence.” Clearly, the role of appellant in the death of Mark Klima constitutes “a fact * * * of consequence to the determination of the action * * *.” Without question, the determination of that issue is crucial to the outcome of the case. Under such circumstances, it is apparent that the trial court did not abuse its discretion when it chose to admit the evidence. The testimony was undoubtedly probative of a fact in issue and cannot be considered inflammatory given its consideration in the context of a bench trial. Appellant's fifth proposition of law is overruled.
In his eighth proposition of law, appellant contends that the confessions elicited from him were involuntary and, consequently, should have been suppressed. At the outset, it must be observed that, in order for a confession to be considered involuntary and thus violative of the Due Process Clause, it must have been the product of state action. See Colorado v. Connelly (1986), 479 U.S. 157, 165, 107 S.Ct. 515, 520, 93 L.Ed.2d 473. In this regard, the Connelly court observed that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. at 167, 107 S.Ct. at 522.
Appellant cites two examples of allegedly coercive police activity. We turn first to his claim that the officers “badgered * * * [him] for ‘the truth.’ ” We do not share the view of appellant that such conduct rises to the level of coercive activity. In State v. Cooey (1989), 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908, this court clearly stated that admonitions to tell the truth directed at a suspect by police officers are not coercive in nature.
Second, appellant claims that the coercive nature of the police conduct is reflected in Detective Kaley's false representation on August 7, 1985 regarding the extent to which the authorities were aware of his prior activities. Specifically, Detective Kaley remarked that “it's not crazy” to suspect appellant because appellant had been “out there [Shakespeare Acres] earlier this week” when Wiles denied having visited the farm. Kaley remarked, “[y]ou know the only way I could have obtained that information was from Mark [Klima] himself.” Additionally, Kaley stated, “Mark told us that you had broken into there one time before, purposely, and you were let go * * *.” While the first of these statements is not technically false (the whereabouts of appellant were derived from remarks made by Mark Klima to his mother), both statements certainly implied that Mark spoke directly to the police. Such misrepresentations are sufficient to constitute state action.
It is therefore necessary to ascertain whether the confessions following these remarks were voluntary. A statement is voluntary if it is “the product of an essentially free and unconstrained choice by its maker [.] * * * ” Culombe v. Connecticut (1961), 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037. In evaluating the voluntary nature of a confession, the court must consider the totality of the circumstances. State v. Edwards, supra, at 40, 3 O.O.3d at 23, 358 N.E.2d at 1059.
Appellant places great emphasis upon the misleading nature of the police statements suggesting that Mark Klima had implicated appellant in the commission of the crime. Clearly, appellant is correct that deception is “a factor bearing on voluntariness. * * * ” Schmidt v. Hewitt (C.A.3, 1978), 573 F.2d 794, 801. However, this factor, standing alone, is not dispositive of the issue. Yet, appellant identifies no other indication of coercion.
Rather, the circumstances surrounding the August 7, 1985 interview lead to an opposite conclusion. The interview was conducted outside the home of appellant, not in a police interrogation room. A transcript of the interview reveals that no threats or promises were communicated to appellant by Kaley in order to obtain his cooperation. Accordingly, the statements made by appellant to authorities on August 7 must be considered voluntary in nature.
On August 12, 1985, Officer Joe Johnson of the Savannah Police Department, responding to a call from appellant, arrested appellant and transported him to police headquarters where he was questioned by Detective Brinson. While appellant initially denied commission of the murder, after breaking for lunch, he admitted it and gave a written statement. Later, appellant was questioned by Detectives Kaley and Doak. Appellant was questioned further by the detectives on the following day. Each interrogation was preceded by Miranda warnings. Officer Johnson provided warnings to appellant at the time of arrest. Detectives Brinson, Kaley and Doak prefaced each interrogation session with warnings. The cumulative effect of such warnings belies any suggestion that the statements which followed were involuntary in nature.
Moreover, appellant cannot contend that he was “worn down by * * * lengthy questioning. * * * ” Fare v. Michael C. (1979), 442 U.S. 707, 727, 99 S.Ct. 2560, 2573, 61 L.Ed.2d 197. To the contrary, the session with Brinson began at 11:48 a.m., was interrupted for lunch, resumed thereafter, and was completed by 2:01 p.m. Seven hours elapsed before his interview with Kaley and Doak commenced. This interrogation began at 9:00 p.m., was suspended for a meal break at 10:14 p.m., resumed at 10:54 p.m. and continued until 10:59 p.m. From 11:15 to 11:30 p.m., appellant composed a written confession in his own handwriting. The following day, in the late afternoon, appellant was questioned by Kaley and Doak for a period of one hour, twenty-six minutes. Taken together, the total interrogation time for both days encompassed five hours, thirteen minutes and was interspersed with long and frequent pauses.
The initiative taken by appellant in surrendering to police suggests that his subsequent confessions were as voluntary as his decision to submit to police custody. The police were attentive to appellant's requests for food and drink and the questioning was not accompanied by threats or promises. Appellant further argues that the absence of counsel supports his contention that his statements were involuntary in nature. While he makes no claim that his waiver of counsel was involuntary, appellant contends that the voluntariness of the waiver did not enhance his ability to resist coercive police interrogation. However, such waiver is indicative of his subjective belief that the presence of counsel was unnecessary.
Finally, appellant contends that a head injury suffered by him approximately a week before his interrogation in Savannah rendered him incapable of exercising his rights. However, there exists no evidence in the record suggesting that his volitional capacity was impaired. Under the totality of the circumstances, we conclude that the statements made to police by appellant were voluntary in nature. Appellant's eighth proposition of law is overruled.
In his sixth proposition of law, appellant urges this court to disapprove the use of custodial police interrogations where a suspect has not actually consulted counsel prior thereto. Appellant further contends that this result should obtain even where the accused has voluntarily waived his constitutional rights and has chosen to speak to authorities. This rule is necessary, appellant maintains, because “ Miranda has failed” to protect criminal defendants from coerced confessions. This argument is without merit. It has been the consistent view of the United States Supreme Court that the Fifth Amendment protects one accused of a crime from being coerced into testifying against himself. In order to assure that any statements made by a criminal defendant are voluntary, Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, requires that the accused be apprised of his rights prior to questioning. This court lacks the authority to interpret the Fifth Amendment more or less expansively than the United States Supreme Court.
However, appellant contends that Section 10, Article I of the Ohio Constitution affords protections independent of those embodied in the Fifth Amendment. Section 10, Article I provides that: “ * * * No person shall be compelled, in any criminal case, to be a witness against himself * * *.” Appellant cites no authority which supports his proposition that all inculpatory custodial statements are, by their very nature, compelled. Rather, the relevant provisions of the state and federal Constitutions require that such statements not be the product of coercion. These considerations are fully addressed in the course of determining whether the statements were voluntary in nature. (See discussion, supra.) Appellant's sixth proposition of law is overruled.
In his seventh proposition of law, appellant argues that his statements to Officer Joe Johnson of the Savannah police should have been suppressed. Officer Johnson was responding to a police dispatch occasioned by appellant's previous call to authorities. When Officer Johnson arrived at the location previously identified by appellant, appellant approached him and stated he wished “to turn * * * [himself] in.” When Officer Johnson asked “[f]or what,” appellant answered “[f]or murder.” After further conversation, appellant stated he had killed Mark Klima at Klima's home in Ohio within the last week. Following submission of appellant's name and Social Security number to the dispatcher, it was determined that an outstanding warrant for his arrest existed. Appellant was thereafter arrested by Johnson and transported to police headquarters.
Under the holding in Miranda v. Arizona, supra, warnings apprising a criminal defendant of his constitutional rights must precede any custodial interrogation. However, such warnings are required only where both custody and interrogation coincide. In the case at bar, the statements to Officer Johnson sought to be suppressed by appellant were not the product of a custodial interrogation. When Officer Johnson responded to the police dispatch generated by appellant's telephone call, it was appellant who approached Johnson. The conversation transpired on a public street, not in the confines of a police interrogation room. Formal arrest was not undertaken until after the information voluntarily conveyed by appellant could be independently verified. Accordingly, appellant was not in custody at the time the statements were made. The trial court did not err in refusing to suppress these statements.
Appellant further maintains that his statements of August 7, 1985 made to Detective Kaley should have been suppressed because there is no evidence that they were preceded by Miranda warnings, since part of the relevant portion of the tape recording had been accidentally erased. As an initial matter, this appears to be a misstatement of fact.
Detective Kaley testified that he had given appellant the warnings. This testimony is buttressed by a review of the transcript of the August 7 interview, which contains the warnings. Nevertheless, appellant contends that the inadvertent erasure of a portion of the warnings by the prosecutor should create a presumption that such warnings were not given. This argument must be rejected. The trial court, having had the opportunity to evaluate firsthand the testimony of the witnesses, determined that such warnings were, in fact, given. Moreover, appellant was not in custody when the conversation took place. Accordingly, no such warnings were required. Appellant's seventh proposition of law is therefore overruled.
In his seventeenth proposition of law, appellant contends that the trial court should have merged the two aggravating circumstances prior to weighing them against the mitigating factors. Appellant was convicted of one aggravating circumstance under R.C. 2929.04(A)(3) (murder to escape accountability for a crime) and another under R.C. 2929.04(A)(7) (murder during aggravated burglary). Both specifications were predicated upon the same aggravated burglary and thus “arose from the same acts and were committed with the same animus.” State v. Cooey, supra, at 39, 544 N.E.2d at 917. See, also, State v. Jenkins (1984), 15 Ohio St.3d 164, 197–198, 15 OBR 311, 340, 473 N.E.2d 264, 295. As conceded by the state, these specifications should have been merged.
However, in Jenkins, supra, at 198–200, 15 OBR at 340–342, 473 N.E.2d at 295–297, this court determined that the failure of the trial court to merge the specifications does not require that the sentence be set aside. Rather, a reviewing court may merge the duplicative aggravating circumstances in the course of conducting its independent weighing of aggravating and mitigating circumstances pursuant to R.C. 2929.05(A). Through this process, any error existing below would be remedied. In the case at bar, such merger was undertaken by the Eleventh District Court of Appeals below. Accordingly, appellant's seventeenth proposition of law is hereby overruled.
In his ninth proposition of law, appellant maintains that there exists insufficient evidence to support his conviction for aggravated murder and one of the death specifications. Any evaluation of this proposition of law must ascertain whether reasonable minds could find that all material elements of the offense and specification were proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184; Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
In support of his initial contention, appellant states that a conviction for aggravated murder under R.C. 2903.01(A) requires proof beyond a reasonable doubt that the accused “purposely * * * cause[d] the death of another.” In this regard, appellant maintains that the state has failed to prove “purpose.” A “purposeful act” is defined by R.C. 2901.22(A) as follows: “A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.” Appellant argues that the state has failed to prove that he purposely killed Mark Klima. He points to three factors which illustrate that purpose was not proven at trial: (1) he waited until he thought everyone had left the Klima house before he entered; (2) he locked the doors behind him to prevent anyone from entering while he was in the house; and (3) there is no evidence that he possessed a weapon when he entered the residence. However, there exists sufficient evidence from which the trier of fact could conclude that appellant acted in a purposeful manner. Appellant stabbed his victim at least ten times. Seven stab wounds were found in his chest and back. A rational factfinder could conclude from the number and location of these wounds that Wiles had a “purpose” to cause the death of Mark Klima.
Appellant also contends that the state has failed to prove that he killed Mark Klima “for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.” R.C. 2929.04(A)(3). It is undoubtedly correct, as appellant suggests, that R.C. 2929.04(A)(3) “[does not permit] an inference that every intended killing which follows another crime allows the death penalty to be imposed.” (Emphasis sic.) State v. Stumpf (1987), 32 Ohio St.3d 95, 103–104, 512 N.E.2d 598, 607. He contends, moreover, that there exists a dearth of evidence that he committed the offense for any of the purposes enumerated in the statute. Clearly, R.C. 2929.04(A)(3) envisions conviction thereunder where it is proven that the accused committed aggravated murder to avoid “detection.” We have previously held “that ‘detection’ anticipates a situation where the witness or witnesses are killed in an attempt to hide the commission of the crime.” State v. Jester (1987), 32 Ohio St.3d 147, 148–149, 512 N.E.2d 962, 965. Thus, in Jester, supra, this court alluded to the facts in Stumpf, supra, to illustrate a situation where the specification had been proven beyond a reasonable doubt: “ * * * [I]n State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, the defendant had shot the husband. Believing that he had killed the husband, Stumpf then killed the wife, the only witness besides defendant and his co-defendant, to avoid detection.” Jester, supra, at 149, 512 N.E.2d at 965.
In contrast, the facts in Jester were insufficient to establish the specification “ * * * because the shooting occurred in a crowded bank, [and] it is not possible to find that he was seeking to avoid detection.” Id. at 148, 512 N.E.2d at 965. Thus, no inference arises that a criminal defendant seeks to escape detection under circumstances where one of many potential witnesses is slain. However, where the accused attempts to kill the only witness to his commission of a crime, there exists sufficient circumstantial evidence that the act was undertaken for the purpose of avoiding detection. See State v. Stumpf, supra. In the case sub judice, Mark Klima was the sole witness to the burglary of the Klima residence. A rational trier of fact could conclude from this evidence that appellant killed Mark Klima for the purpose of escaping detection for the crime. Appellant's ninth proposition of law is therefore overruled.
In his tenth proposition of law, appellant contends that the testimony of Carol Klima relative to her prior conversation with her son was inadmissible hearsay. Carol Klima testified regarding the presence of appellant on her property on August 5, 1985, two days before the murder. Her testimony on this point consisted of the following: “He talked to my son. He asked my son if he recognized him. My son said, ‘Yes, you're Mark Wiles.’ And Mark Wiles told my son that he had amnesia and that he wanted to talk to me, and my son told him that I was up at the house and Mark Wiles started to walk towards the house and the dog started barking and he turned around and left.”
The aforementioned testimony was introduced by the state for the purpose of establishing that Mark Klima was capable of identifying appellant to the authorities. Such evidence would also tend to demonstrate that appellant was guilty of the specification under R.C. 2929.04(A)(3) inasmuch as the killing of Mark Klima would enable appellant to escape detection, apprehension, trial or punishment for another offense. Despite the relevancy of such evidence, appellant contends that the testimony constitutes inadmissible hearsay. The state essentially concedes that Carol Klima's recollection of the conversation with her son was offered to prove the truth of the matter asserted. It was therefore the intent of the prosecution to establish that appellant knew that Mark Klima could identify him. The statement is clearly hearsay within the meaning of Evid.R. 801(C) and does not satisfy the requirements for admissible hearsay under Evid.R. 803 or 804. Accordingly, it was inadmissible under the Rules of Evidence.
However, no objection to such testimony was interposed at trial. Appellant also failed to raise this issue before the court of appeals. Trial error not preserved by objection may be considered on appeal only if it constitutes plain error. The plain error test requires that, but for the existence of the error, the result of the trial would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 181, 372 N.E.2d 804, 808.
Assuming arguendo that the failure to exclude such testimony would have constituted reversible error if an objection thereto had been made, there exists sufficient evidence apart from the statements of Carol Klima to support the verdict with regard to the specification. (See Part IX, supra.) It cannot be said with any degree of confidence that appellant would have been acquitted of the specification but for the hearsay testimony. Accordingly, appellant's tenth proposition of law is overruled.
In his twelfth proposition of law, appellant argues that the state introduced improper evidence and engaged in inflammatory argument during the guilt phase of the trial. The evidence in question involved the testimony of Carol Klima, who described her son as “a wonderful boy” with a quiet disposition. She further discussed Mark's hobbies and grades in school. Moreover, the prosecuting attorney described the deceased in closing argument as follows: “A boy, a son that every parent would dream about having. A four-point student and an accomplished writer. A shy and quiet boy * * * who liked computers, who hated violence.” The prosecution also evoked the suffering of Charles and Carol Klima: “And the worst repayment of all was the mutilation and the snatching away of the life of their only child.”
Appellant correctly contends that this evidence and argument constituted an irrelevant appeal to the emotions. However, in reviewing a bench trial, an appellate court presumes that a trial court considered nothing but relevant and competent evidence in reaching its verdict. The presumption may be overcome only by an affirmative showing to the contrary by the appellant. State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759. Appellant has failed to identify anything in the record which would suggest that the trial court considered anything but competent, credible evidence in arriving at the verdict. Similarly, there is no indication from the trial court opinion to support the view that the personal qualities of the deceased or the grief suffered by his parents was considered in fixing sentence. See Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.
Appellant further objects to the characterization of him by the prosecutor as “an ogre * * *, a man-eating monster, a hideous, brutish person * * * ” and “an animal.” Such invective is highly unprofessional. See DeFoor, Prosecutional Misconduct in Closing Argument (1983), 7 Nova L.J. 443, 465. However, the prosecution is entitled to some latitude in summation. State v. Woodards (1966), 6 Ohio St.2d 14, 26, 35 O.O.2d 8, 14, 215 N.E.2d 568, 578. “ * * * Strong characterizations such as ‘beast,’ ‘cruel human vulture,’ and ‘vile creature’ have been allowed where there is support for them in the record. * * * ” DeFoor, supra, at 464–465. The language of the prosecuting attorney, while strong, is amply supported by the record. Mark Klima was stabbed at least ten times, mostly in the back, and sustained a total of twenty-four wounds. Moreover, no objection was interposed relative to the characterizations. Finally, such remarks were directed to a three-judge panel, which is presumed to have considered only relevant evidence in arriving at its decision. State v. Post, supra. Thus, there exists no basis for concluding that such remarks deprived appellant of a fair trial.
Appellant also challenges the reference made by the prosecution that he lied to the police on various occasions, including when he told police that the deceased had attacked him. He contends that his veracity was irrelevant to the issue of guilt or innocence. However, appellant had maintained as a crucial aspect of his defense that the homicide was not purposeful because he had killed in a moment of panic after he was attacked with a knife by Mark Klima. Inasmuch as appellant was the only surviving witness to the fatal encounter, it was clearly permissible for the state to argue that appellant's version of events was unworthy of belief because he had lied on other occasions. See State v. Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, 717.
The prosecution also argued that appellant had failed to “show concern” about the crime because of his threat to “kill again.” Appellant takes issue with these statements because he contends that they focus on “future dangerousness” and are thus irrelevant to the issue of guilt. However, the prosecution's argument sought not to establish appellant's future dangerousness but rather his total lack of remorse shortly after the commission of the crime. While under most circumstances such argument would be equally irrelevant to guilt or innocence, the subjective mental state of appellant during the period following the crime became an issue during the guilt phase of the trial as a result of the strategy employed by the defense. The defense had emphasized both on cross-examination and in closing argument that appellant had cooperated with police and had shown deep remorse “to the point that he even contemplated taking his own life * * *.” Such argument as was advanced by the state merely sought to rebut the defense contentions.
Appellant also objects to references by the prosecution regarding the youth of the victim. However, such argument is clearly relevant to answer the claim of appellant that he was attacked by Mark Klima. While it is certainly true that persons fifteen years of age have been known to commit homicide, the prosecution was certainly free to argue that it is much more likely that a twenty-two-year-old burglar would attack a fifteen-year-old boy than for the opposite to occur. Appellant's twelfth proposition of law is overruled.
In his fourteenth proposition of law, appellant challenges the use of inflammatory arguments by the prosecution during the penalty phase of the trial. Of particular significance is the contention of appellant that the prosecutor commented disparagingly about the exercise of his constitutional rights. In attempting to refute appellant's claim that he cooperated with police, the prosecutor remarked: “Did he cooperate with Duane Kaley when he went over to talk to him the afternoon of August Seventh? * * * He wouldn't give him a consent to search the car.” Appellant correctly notes that “courts disapprove of penalties imposed for exercising constitutional rights.” State v. Landrum, supra, at 110, 559 N.E.2d at 716. Prosecutorial comment that “cuts down on” a constitutional right “by making its assertion costly” is forbidden. Griffin v. California (1965), 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106.
Appellant clearly had a right to withhold consent to a warrantless police search of his car. The comment by the prosecution sought to penalize the assertion of this right. Just as prosecutors are barred from commenting upon the assertion by a criminal defendant of his Fifth Amendment right against self-incrimination, Griffin, supra, or upon his plea of not guilty, Landrum, supra, they may not comment on his exercise of his Fourth Amendment right against unreasonable searches. See United States v. Thame (C.A.3, 1988), 846 F.2d 200, 205–207; United States v. Taxe (C.A.9, 1976), 540 F.2d 961, 969. Nevertheless, the defense did not object to the comment by the prosecutor. This deficiency waives any claim of error except plain error under Crim.R. 52(B). As observed earlier, however, an error will not be found to be plain error where it is not outcome determinative. (See Part X, supra.) Given the presentation of such argument in the context of a bench trial, it must be presumed that the court disregarded an appeal by the prosecutor premised upon the assertion by appellant of his constitutional rights.
Appellant also objects that the prosecution commented on his refusal to testify on his own behalf. Remarks of this nature, if they occurred, would be clearly inappropriate. Griffin v. California, supra. However, no such comments were made by the prosecution. Rather the prosecutor said, “Mark Klima is also a witness, but he's not talking to you from his mouth, he's talking to you through the puncture wounds in his back and in his chest.” (Emphasis added.) This does not constitute comment upon appellant's refusal to testify.
Appellant also challenges the relevancy of comments by the prosecution relative to the character of the victim. The prosecutor described Mark Klima as a “quiet,” “peaceful and nonviolent” person who “backed away from fights.” However, such remarks were a valid attempt to refute the characterization of Mark Klima by appellant as the aggressor. Appellant further objects to the reference of the prosecutor to the suffering inflicted upon the victim. However, we have previously held that absent plain error, such comment does not constitute reversible error. State v. Cooey, supra, at 36, 544 N.E.2d at 915.
Appellant additionally cites comments made by the prosecutor about his character, which appellant argues were irrelevant and prejudicial. In particular, the prosecution remarked: “If you look at his history, his character and background, he's a drugger, a doper.” The prosecutor also alluded to appellant's affair with his cousin's wife. While such remarks border on irrelevancy, the Supreme Court has approved “open and far-ranging argument * * * ” and observed that “[s]o long as the evidence introduced and the arguments made at the pre-sentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. * * * ” Gregg v. Georgia (1976), 428 U.S. 153, 203–204, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (plurality opinion).
Appellant argues that the prosecution improperly referred to his alleged future dangerousness. In State v. Beuke (1988), 38 Ohio St.3d 29, 33, 526 N.E.2d 274, 280, this court specifically permitted such comment by the prosecution. Appellant further maintains that future dangerousness may not be considered because it is not a statutory aggravating circumstance, citing Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. However, Jurek merely concluded that states may constitutionally designate future dangerousness as a statutory aggravating circumstance. Id. at 274–276, 96 S.Ct. at 2957–58. As mentioned previously, however, evidence of appellant's future dangerousness was not admitted for the purpose of establishing a non-statutory aggravating circumstance but to refute his contention during both the guilt and penalty phases of the trial that he experienced remorse over the killing of Mark Klima.
During the course of closing argument at the mitigation hearing, the prosecution repeatedly referred to the emotional impact of Mark Klima's death on his parents. While such references are constitutionally impermissible, Booth v. Maryland, supra, there is no affirmative showing by appellant that they were considered by the trial court in imposing sentence, State v. Post, supra.
Appellant also objects to remarks made by the prosecutor relative to offenses for which appellant had not been charged or convicted. He therefore contends that such comment violated the presumption of innocence. However, such presumption does not obtain in sentencing proceedings. Consequently, no statutory or constitutional infirmity exists. See State v. Hutton (1990), 53 Ohio St.3d 36, 42–43, 559 N.E.2d 432, 441; State v. Cooey, supra, at 35, 544 N.E.2d at 914. Appellant also challenges the argument of the prosecutor that appellant left the scene of the crime with the money he had stolen, rather than obtaining medical assistance for the victim. This argument, appellant contends, is “irrelevant and ridiculous * * *.” However, such remarks were intended to refute appellant's claim that the killing of Mark Klima was unintentional. Clearly, a question arises regarding such protestations by appellant when no attempt was made to seek help for an “unintended victim.” Appellant's fourteenth proposition of law is overruled.
In his fifteenth proposition of law, appellant contends that the trial court improperly considered nonstatutory aggravating circumstances in imposing sentence. This argument is without merit. The trial court specifically and correctly identified the aggravating circumstances in its opinion. It further stated ten reasons why the aggravating circumstances outweighed the mitigating factors. Appellant, however, characterizes these reasons as nonstatutory aggravating circumstances. R.C. 2929.03(F) requires that a trial court state the reasons for its finding that the aggravating circumstances outweigh the mitigating factors. Moreover, in State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, this court held at paragraph one of the syllabus, that the “trial court * * * may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.”
Accordingly, where the court below correctly identifies the statutory aggravating circumstances pleaded and proven at trial, this court will infer that the trial court “understood the difference between statutory aggravating circumstances and facts describing the nature and circumstances of the offense.” State v. Sowell (1988), 39 Ohio St.3d 322, 328, 530 N.E.2d 1294, 1302. Clearly, such inference is appropriate in the case at bar. Appellant's fifteenth proposition of law is overruled.
Appellant claims in his sixteenth proposition of law that the trial court failed to consider relevant mitigating factors adduced by him at the sentencing hearing. The trial court determined that appellant had established two mitigating factors: his youth and his “mostly truthful and sincere” confessions. However, appellant contends that the trial court did not consider his deep remorse over the killing or the fact that the murder would not have been solved without his surrender to authorities and his subsequent confessions. This argument mischaracterizes the trial court decision. The court specifically mentioned that it had considered “[e]vidence of remorse” and “cooperation of the defendant with law enforcement officials and confessions.”
Moreover, appellant's contention that the trial court failed to take into account his history of drug and alcohol abuse is inaccurate. A review of the trial court opinion contradicts this assertion. Appellant further maintains that the trial court ignored mitigating evidence relative to his active involvement in church activities. This contention is also contradicted by the language of the trial court opinion. We similarly reject appellant's contentions that the trial court failed to consider the results of his psychological evlauation, his generally favorable record during a prior incarceration, his troubled family history, his history of nonviolence, or his efforts to avoid a confrontation during the burglary. The trial court opinion reveals that such evidence was in fact considered.
Appellant also maintains that the trial court failed to give due regard to his lack of a significant history of prior convictions as required by R.C. 2929.04(B)(5). However, the court merely concluded that the factor did not exist because it viewed appellant's prior burglary conviction as significant. Appellant likewise contends that the trial court did not consider that the victim induced the stabbing by attacking him and thus ignored mitigating circumstances to which it is required to accord weight pursuant to R.C. 2929.04(B)(1). A more plausible reading of the trial court decision yields the conclusion that the court simply did not believe appellant's version of his encounter with Mark Klima. Accordingly, it was the determination of the trial court that the statutory mitigating factor did not exist.
Assuming arguendo that such mitigating factors should have been more explicitly addressed by the trial court, any deficiency inherent therein can be cured by an independent reweighing of the factors by this court. State v. Lott, supra, at 171–173, 555 N.E.2d at 305–307. Appellant's sixteenth proposition of law is overruled.
In his twenty-third proposition of law, appellant contends that the trial court failed to adequately explain why the aggravating circumstances were sufficient to outweigh the mitigating factors. While appellant concedes that the trial court listed ten reasons why the aggravating circumstances prevailed, he nevertheless argues that the listings did not constitute a meaningful weighing. R.C. 2929.03(F) requires a trial court to “state * * * the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors * * *.” This function was fully performed by the trial court in the case at bar. Appellant's twenty-third proposition of law is overruled.
In his twenty-fifth proposition of law, appellant urges that the court of appeals improperly considered the circumstances of the offense as nonstatutory aggravating circumstances. However, a review of the court of appeals' opinion reveals that the appellate court correctly identified the aggravating circumstance upon which its decision was predicated. Appellant further contends that the appellate court failed to give sufficient weight to several of the mitigating factors which he presented at trial. However, the court is under no obligation to assign any particular weight to mitigating factors advanced by the defendant. See State v. Cooey, supra, at 39–40, 544 N.E.2d at 918. Appellant's twenty-fifth proposition of law is overruled.
In his twenty-eighth proposition of law, appellant objects to the admission of numerous gruesome autopsy photographs of the victim. The photographs are clearly gruesome and repetitive. State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. However, appellant failed to object to the admission of such exhibits at trial. Moreover, the probative value of such evidence is beyond question. The photographs reveal the number and location of the stab wounds and are thus relevant to the issue of intent. Accordingly, their admission cannot be considered plain error. Appellant's twenty-eighth proposition of law is overruled.
In his eleventh proposition of law, appellant maintains that the trial court should have provided for a stenographic record of its visit to the Klima residence to view the murder scene. However, appellant neither requested that a record be made at the time nor attempted to employ App.R. 9(C) or 9(E) “to reconstruct what was said or to establish its importance.” State v. Brewer (1990), 48 Ohio St.3d 50, 61, 549 N.E.2d 491, 502. Accordingly, any alleged error in failing to record the event has been waived for purposes of appellate review. Appellant's eleventh proposition of law is overruled.
In his twenty-seventh proposition of law, appellant contends that the indictment is invalid because it does not bear the signature of the grand jury foreman. During the course of these proceedings, the portion of the indictment originally transmitted to this court containing the foreman's signature was misplaced. This missing page has since been located. In the meantime, to remedy this apparent deficiency, the state was permitted to supplement the record by supplying a certified copy of the indictment. See 47 Ohio St.3d 702, 547 N.E.2d 988.
We are unable to determine when this page containing the signature became detached and misplaced. However, regardless of when the detachment occurred, we cannot agree that this apparent irregularity warrants reversal. If the signature was properly attached prior to trial, then the indictment did not lack a signature and no defect existed. If the signature page was misplaced before trial, appellant has failed to preserve any error by timely objection. Appellant may not withhold a timely objection at trial in the hopes of obtaining a favorable outcome on the merits and attempt to raise the error on review when the desired result fails to materialize. See Wainwright v. Sykes (1977), 433 U.S. 72, 89–90, 97 S.Ct. 2497, 2507–08, 53 L.Ed.2d 594. Appellant's twenty-seventh proposition of law is overruled.
In his twenty-second proposition of law, appellant contends that the mitigating factors set forth in R.C. 2929.04(B) are unconstitutionally vague because they “fail to adequately inform the trier of fact what may and may not be considered in mitigation.”
However, in Eddings v. Oklahoma (1982), 455 U.S. 104, 113–114, 102 S.Ct. 869, 876–77, 71 L.Ed.2d 1, the United States Supreme Court held that “the State may not by statute preclude the sentencer from considering any mitigating factor * * *.” Although irrelevant evidence may be excluded, Lockett v. Ohio (1978), 438 U.S. 586, 604, fn. 12, 98 S.Ct. 2954, 2965, fn. 12, 57 L.Ed.2d 973, any attempt to restrict what may be considered in mitigation would be violative of the Eighth and Fourteenth Amendments to the United States Constitution. While appellant cites Maynard v. Cartwright (1988), 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372, for the proposition that “sentencing guidelines” must be specific, the decision addressed an unconstitutionally vague aggravating circumstance, not a mitigating factor. Rather, any attempt to limit consideration of any mitigating factor on the basis of vagueness would run afoul of the constitutional imperatives recognized in Eddings v. Oklahoma, supra. Appellant's twenty-second proposition of law is overruled.
In his first proposition of law, appellant contends that R.C. 2929.04(A)(7) (the felony-murder aggravating circumstance) essentially replicates the elements of R.C. 2903.01(B) (the offense of aggravated murder) and is therefore unconstitutional. This argument was considered and rejected in State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of the syllabus. Appellant further argues that R.C. 2929.04(A)(7) is unconstitutionally vague because it does not define “principal offender.” We do not consider this term to be vague. In State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746, we held that “principal offender” denotes “the actual killer.” Appellant's first proposition of law is overruled.
In his thirteenth proposition of law, appellant urges this court to require that any convictions of a capital offense and any determination that death should be imposed be proven beyond all doubt. This proposition of law is overruled on authority of State v. Jenkins, supra, paragraph eight of the syllabus, and State v. Williams 1986), 23 Ohio St.3d 16, 22, 23 OBR 13, 19, 490 N.E.2d 906, 913.
In his eighteenth and twenty-sixth proposition of law, appellant argues that any proportionality review undertaken pursuant to R.C. 2929.05(A) must include consideration of cases where the death penalty was available but not imposed. This proposition of law is overruled on authority of State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus.
In his twenty-fourth proposition of law, appellant contends that the Ohio statutory framework for imposition of the death penalty is violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution. These arguments were considered and rejected by this court in State v. Jenkins, supra, at 167–179, 15 OBR at 314–324, 473 N.E.2d at 272–280. Appellant's twenty-fourth proposition of law is not well-taken.
In his twenty-ninth proposition of law, appellant contends that the errors previously alleged were cumulatively prejudicial and denied him a fair trial. However, we conclude that appellant's prior propositions either “fail to establish errors” or allege errors which are “not outcome determinative.” State v. Moreland (1990), 50 Ohio St.3d 58, 69, 552 N.E.2d 894, 905. Appellant's twenty-ninth proposition of law is overruled.
In his nineteenth, twentieth and twenty-first propositions of law, appellant contends that the independent review required of this court pursuant to R.C. 2929.05(A) must yield the conclusion that the aggravating circumstance does not outweigh the mitigating factors beyond a reasonable doubt and that imposition of the death sentence herein would be disproportionate to the sentences rendered in similar cases. Appellant was convicted of two aggravating circumstances pursuant to R.C. 2929.04(A)(3) (murder to escape detection, apprehension, trial or punishment for another offense) and R.C. 2929.04(A)(7) (felony murder). The court of appeals correctly concluded that these two specifications should have been merged for purposes of sentencing. See Part VIII, supra. Accordingly, there exists one aggravating circumstance. Several mitigating factors are advanced by appellant to overcome the aggravating circumstance.
As an initial matter, appellant claims that he exhibited remorse for the murder, surrendered to authorities and confessed to the crime. Without such confessions, appellant contends that the crime would never have been solved. Although “retrospective remorse is to be accorded little weight in mitigation * * *[,]” State v. Post, supra, at 394, 513 N.E.2d at 768, remorse which leads to surrender and confession is a more impressive factor. State v. Hicks (1989), 43 Ohio St.3d 72, 80, 538 N.E.2d 1030, 1039. Nevertheless, the remorse exhibited by appellant is offset to some degree by his other attempts to avoid responsibility. His cooperation was neither total nor immediate. When Detective Kaley visited his residence on August 7, 1985, the initial reaction of appellant was to ask his roommate to lie to the police so he could escape out the side door. In his subsequent conversation with Detective Kaley, appellant denied any participation in the crime. When Detective Kaley left, appellant fled the state. Despite his surrender to Georgia police authorities five days later, he initially represented to Detective Brinson that he did not commit the murder.
Appellant also claims in mitigation that he tried to avoid any confrontation with Mark Klima. In support of this contention, appellant states that he did not enter the house until he was convinced that the occupants (including Mark Klima) had left, he carried no weapon into the house with him and he locked the door behind him. Certainly, these facts are entitled to some weight in mitigation. Appellant also argues that Mark Klima approached him from behind with a knife and that the confrontation resulted in a panic-induced killing. However, other evidence tends to contradict appellant's characterization of his confrontation with Mark Klima. Of the ten or eleven stab wounds suffered by the victim, five were in the back. There is no evidence of a struggle in the living room. Moreover, it is highly improbable that a slightly built fifteen-year-old boy of peaceful disposition armed himself with a knife and attacked an older, stronger burglar.
Appellant further urges in mitigation that he was only twenty-two years of age when the crime was committed. While youth is clearly a mitigating factor under R.C. 2929.04(B)(4), it has not been afforded great weight by this court. See State v. Powell (1990), 49 Ohio St.3d 255, 263, 552 N.E.2d 191, 200 (nineteen-year-old defendant); State v. Benner (1988), 40 Ohio St.3d 301, 319, 533 N.E.2d 701, 719 (defendant was twenty-two and twenty-three at the time the murders were committed). Appellant also presented evidence of his redeeming personality traits. A family friend testified that appellant had been a quiet, sincere boy who had participated in church activities. His former minister, his mother and a second family friend testified that appellant does not have a violent nature. Consequently, appellant argues that his murder of Mark Klima was an aberration. Moreover, appellant's former supervisor at Mansfield State Reformatory testified that appellant was polite, quiet and caused no problems.
In contrast, appellant's former high school unit principal testified that appellant was prone to displays of anger and verbal abuse. Appellant was described by this witness as one of the most “belligerent individuals” he had met in his career. Other testimony also suggested that appellant was capable of acts of violence. Kathy Kelley testified that appellant, speaking about a previous burglary, had told her “that he was glad that he didn't have to hurt anybody in that burglary because he didn't know what he would have done if somebody had seen him * * *.” Testimony was also presented regarding his allegedly kind nature. Susan Hodge, a friend of the Wiles family, stated that appellant was “very good to my children.” She remarked that appellant had once offered to buy her son braces to correct his harelip and cleft palate. Evidence was submitted with respect to appellant's childhood. A psychologist testified that appellant's emotional development had been arrested between the ages of ten and twelve and that he has “an overabundance of conscience * * *.” Appellant had a poor relationship with his father, who was not close to him and gave him little positive reinforcement. Appellant was also extremely close with his older brother Randy, who died when appellant was in the tenth grade. While appellant had a history of drug and alcohol abuse, the record does not indicate that it contributed to the commission of the crime in question. Moreover, he was not under the influence of drugs or alcohol at the time he committed the crime, nor was the burglary undertaken to support a drug habit.
Appellant also contends that he lacked a significant history of prior convictions or delinquency adjudications. See R.C. 2929.04(B)(5). However, appellant did have a previous conviction for aggravated burglary. Inasmuch as that crime involved the same type of activity which forms the basis of the aggravating circumstance in the case sub judice, the conviction cannot be considered insignificant. Appellant contends that he maintained an excellent disciplinary record at the Mansfield Reformatory. Appellant's prison records show that he was disciplined three times in fifteen months. However, on one of these occasions, when appellant disobeyed the demand of a guard, compliance therewith would have constituted a violation of the orders of his supervisor. None of the infractions involved drugs, alcohol or violence. While describing such a record as “excellent” is an exaggeration, it is entitled to some weight in mitigation. Thus, appellant has clearly adduced a modicum of mitigating evidence. However, the extreme violence employed in the commission of the crime and its perpetration in the home of the victim lead us to conclude that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Appellant's nineteenth, twentieth and twenty-first propositions of law are therefore overruled.
In his twenty-sixth proposition of law, appellant contends that imposition of the death penalty in the instant case is disproportionate to sentences given in similar cases.
In determining, pursuant to R.C. 2929.05(A), whether the sentence imposed is disproportionate or excessive, this court must review the disposition of other capital cases reviewed by us where the criminal act involved similar circumstances. Several decisions by this court have approved the death sentence for persons who have committed aggravated murder in the course of aggravated burglary. See State v. Henderson, supra; State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831; State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v. Steffen, supra; and State v. Barnes (1986), 25 Ohio St.3d 203, 25 OBR 266, 495 N.E.2d 922.
Appellant contends, however, that all of the preceding cases involved other specifications in addition to aggravated burglary. Inasmuch as the two specifications charged in the case at bar must be merged, the aggravated burglary specification constitutes the only aggravating circumstance. However, since the filing of appellant's brief, this court has decided State v. Landrum, supra.
Despite the presence in Landrum of only one aggravating circumstance, the same one present herein (aggravated burglary), this court upheld the imposition of the death penalty in that case. Accordingly, the sentence rendered herein is not disproportionate to penalties imposed in similar cases. Appellant's twenty-sixth proposition of law is overruled. The judgment of the court of appeals is therefore affirmed.
MOYER, C.J., and SWEENEY, HOLMES, DOUGLAS, HERBERT R. BROWN and RESNICK, JJ., concur. WRIGHT, J., concurs in judgment only.
State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Ohio App. 11 Dist. 1998). (PCR)
Following final affirmance of his felony-murder conviction and sentence of death, 59 Ohio St.3d 71, 571 N.E.2d 97, petitioner sought post-conviction relief. The Portage County Court of Common Pleas dismissed petition without hearing, and petitioner appealed. The Court of Appeals, Nader, J., held that: (1) petitioner was entitled to have state's response to petition stricken as untimely; (2) erroneous denial of motion to strike was harmless; (3) post-conviction court did not abuse its discretion in impliedly denying petitioner discovery; (4) findings and conclusions in connection with summary dismissal of petition were insufficient and precluded effective appellate review; (5) petitioner's claim that his former attorney could be presumed to have shared with prosecutor's office information useable to defend against post-conviction petition was not barred by res judicata; (6) petitioner was entitled to hearing on such claim; and (7) petitioner's claim that statutory post-conviction relief procedure was not effective remedy for alleged violations of federal constitutional rights was not cognizable on direct appeal from dismissal of petition for post-conviction relief. Reversed and remanded with instructions. Christley, J., concurred with separate opinion. Ford, P.J., concurred in result only.
Wiles v. Bagley, 561 F.3d 636 (6th Cir. 2009). (Habeas)
Background: Following affirmance of aggravated murder conviction and sentence of death, 571 N.E.2d 97, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Ohio, Paul R. Matia, J., 2005 WL 1181859, denied the petition. Petitioner appealed.
Holdings: The Court of Appeals, Sutton, Circuit Judge, held that: (1) trial counsel's failure to uncover certain evidence while preparing for mitigation hearing did not prejudice petitioner, and (2) trial counsel's failure to adequately prepare psychologist for mitigation hearing did not prejudice defendant. Affirmed. Martin, Circuit Judge, filed opinion concurring.
SUTTON, Circuit Judge.
Mark Wiles murdered a fifteen-year-old boy with a kitchen knife during a botched burglary in 1985. After he waived his right to a jury trial, a panel of three Ohio judges convicted him of aggravated murder and aggravated burglary, then sentenced him to death. After exhausting his state-court appeals and post-conviction remedies, Wiles sought a writ of habeas corpus under 28 U.S.C. § 2254, arguing (among other things) that he was denied the effective assistance of counsel under the Sixth and Fourteenth Amendments. Because Wiles has not shown that he was prejudiced by his counsel's alleged shortcomings, we affirm.
In 1982, Wiles went to work as a part-time laborer for Charles and Carol Klima on their horse farm, where they lived with their son Mark. State v. Wiles, 59 Ohio St.3d 71, 571 N.E.2d 97, 103 (1991). One day in early 1983, the family learned that $200 in cash was missing. That same day, Wiles had reported for work, but he could not be found after the Klimas learned of the missing cash, and he did not return to collect his paycheck or for that matter return to work any longer on the farm. Id. at 103-04. In the spring of that year, Wiles began serving a 4-25 year sentence in an Ohio prison for an unrelated burglary he had committed the previous year.
On August 7, 1985, after serving eighteen months of this sentence, Wiles returned to the Klima farm, entered the unlocked house while the family was gone and began to search the house for valuables. Wiles, 571 N.E.2d at 104. While he was still in the house, Mark Klima returned and confronted him. Id. Wiles stabbed the boy 24 times with a kitchen knife, stole approximately $260 and fled. Id. Carol Klima returned home to find her unconscious son lying on the floor with a knife buried in his back. Id. Later that day, Mark Klima died in a hospital emergency room. Id. Wiles initially fled from the authorities. Five days after the murder, however, he turned himself in to the police in Savannah, Georgia, telling them that he was wanted for murder in Ohio. Id. at 105. After being informed of his rights, he told the police what he had done and signed a confession admitting that he had killed Klima. Id.
A state grand jury indicted Wiles for aggravated murder and two counts of aggravated burglary-one for the 1985 home invasion, one for the 1983 $200 theft. Id. at 105-06. He waived his right to a jury, and a three-judge panel heard his case. Id. at 106-07. After the guilt phase of the proceedings, the court determined that there was insufficient evidence that he had committed the 1983 burglary but convicted him on the aggravated-murder and the other aggravated-burglary count. Id. at 107. After a mitigation hearing, the court determined that neither Wiles' youth (he was 22-years old at the time of the murder) nor his confession outweighed the aggravating circumstances of his crime. Id. at 107-08. The court imposed a death sentence, and the Ohio Court of Appeals and the Ohio Supreme Court affirmed his conviction and sentence. Id. at 108, 125; State v. Wiles, No. 1675, 1988 WL 59838, at *10 (Ohio Ct.App. June 3, 1988).
Wiles filed a state post-conviction petition, which included a claim that his trial counsel had provided constitutionally inadequate assistance at the mitigation phase of the trial. The state trial and appellate courts rejected the petition. In rejecting his ineffective-assistance claim, the court of appeals concluded that Wiles “ha[d] failed to demonstrate ineffective assistance of his trial counsel at the ... penalty phase” and that “he [was] unable to demonstrate with a reasonable probability that the result at trial would have been different” if his counsel had not made the alleged errors. JA 918. The Ohio Supreme Court declined review. State v. Wiles, 93 Ohio St.3d 1412, 754 N.E.2d 260, 260 (2001). In 2002, Wiles filed a petition for a writ of habeas corpus in federal court, raising 36 claims. The district court denied the petition in 2005 and declined to issue a certificate of appealability on any of the claims. Wiles sought a COA from us, which we granted with respect to the claim that his attorneys failed him at the penalty phase of his trial.
To establish ineffective assistance of counsel, a claimant must show two things. He must establish that his attorneys' performance was “deficient,” which “requires showing that [they] made errors so serious that [they were] not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And he must show that “there is a reasonable probability that, but for counsel's [failure to investigate], the result of the [mitigation hearing] would have been different.” Id. at 694, 104 S.Ct. 2052. Like all claimants seeking federal habeas relief after 1996, Wiles faces another hurdle: the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. Under that legislation, we may grant the writ only if the state court of appeals' decision “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1).
In maintaining that his trial counsel did not adequately prepare for the mitigation hearing, Wiles claims that his attorneys failed (1) to uncover abuse in his childhood, (2) to uncover that he had taken barbiturates before entering the Klimas' house on the day of the murder and (3) to investigate a head injury he received twelve days before the murder. Even if we grant for the sake of argument that these claimed lapses meet the first prong of Strickland (ineffective assistance), they do not meet its second prong (prejudice). *639 See Poindexter v. Mitchell, 454 F.3d 564, 572 (6th Cir.2006). Wiles has not shown that “there is a reasonable probability” that, but for this alleged absence of investigation, “the result” of the mitigation hearing “would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Above all, the new evidence does not “differ[ ] markedly from the testimony and evidence the [three-judge panel] in fact considered.” Hill v. Mitchell, 400 F.3d 308, 332 (6th Cir.2005).
First, the new family-history evidence about Wiles' father and mother adds little to what was introduced at the mitigation hearing. As to his father: Counsel introduced evidence at the trial showing that his father was “stern,” JA 1037, that he was “less tolerant with [Wiles] than he was [with] the other[ ] [children]” and that he viewed Wiles as an “interference ... in [the family's] life” because “[Wiles] was not a planned child,” JA 1302-03. A counselor's report also described the following incident between Wiles and his father when Wiles was 17: Mark has been high everyday during the past week. Sat. 1-10 his father and him got into a fight. His father got rough w/ him. Mark got pushed down some steps. Mark[']s father called the police and had him charged w/ intoxication. Mark was placed in detention.... JA 981.
Most of the ostensibly new evidence represents variations on this same theme. For example: Wiles claims that the court should have heard that his father was emotionally distant-that he was “not one to touch much,” JA 783; that, after Wiles began serving time in prison for his first burglary in 1983, his father “washed [his] hands of him and did not visit him,” JA 744; that his father stated that he “never wanted that bastard anyway,” JA 746; that he told Wiles that he “would never amount to anything and that he did not want him,” id.; and that Wiles suffered “emotional[ ] and physical[ ] abuse” from his father, JA 747, though the affidavit to this effect (from his sister Jona) offers no details about any incidents of physical violence. All of this evidence adds little to the picture that counsel already had painted of Wiles' father: a man who did not like Wiles, who resented him as an unwanted addition to the family and who, on occasion, “got rough” with him, JA 981. This is precisely the “kind of cumulative evidence that does not show prejudice,” Brooks v. Bagley, 513 F.3d 618, 626 (6th Cir.2008), because it does not “differ in a substantial way-in strength [or in] subject matter-from the evidence actually presented at sentencing,” Hill, 400 F.3d at 319.
Wiles, however, does identify one new piece of evidence that was not covered at the trial-the allegation that his father was “sexually inappropriate with his sisters.” JA 754. According to Wiles' post-conviction psychological expert, Robert Smith, “Wiles reluctantly disclosed that his father was ‘sexually inappropriate’ with his sisters.” JA 754. New though this allegation may be, it is not corroborated: Neither Wiles' father, his sister, nor his mother mentions any such abuse in their affidavits. Even if we accept the allegation as credible, moreover, it still amounts to exceedingly weak mitigation evidence, because nothing shows that Wiles was aware of this abuse at the time of the murder, and there is no evidence that it caused him any psychological harm beyond what he had already experienced at the hands of a distant and sometimes abusive father. Confirming the point, Smith does not refer to these allegations in discussing Wiles' troubled relationships, his overall diagnostic impressions of Wiles or his impressions of Wiles' mental state at the time of the crime. Absent evidence that Wiles knew of the abuse or even evidence about how it might have affected his psychological profile, we see no tenable basis on which it could have altered the three-judge panel's sentence.
As to Wiles' mother: Counsel offered evidence at the mitigation hearing from a school psychologist who said that his “mother [was] ignoring” and that the family was “not close.” JA 1037. Wiles claims that his attorneys also should have introduced evidence that his mother “was quite depressed and cleaned the house all the time for [their] father.” JA 746. The expert witness, Smith, likewise spoke of the mother's “long-standing history of depression,” which prompted her to “spen[d] a considerable amount of time sleeping and withdrawing from the family and others.” JA 755. But this evidence adds little to what the three-judge panel heard. There is no indication that the depression affected Wiles in any way beyond causing his mother to “withdraw[ ]” from the family, id., and a similar theory was put before the three-judge court when it heard evidence that she “ignor[ed]” him, JA 1037.
Second, the ostensibly new evidence of drug use suffers from a similar flaw. Wiles argues that his counsel failed to introduce evidence about his “drug problems, which escalated after an industrial accident which caused the tragic death of his brother.” Br. at 20. Yet this evidence, once again, largely duplicates what the judges already heard. Wiles' attorneys presented ample evidence at the mitigation hearing of Wiles' history of drug and alcohol abuse, the death of his brother Randy and the impact these events had on him.
Here, too, there is an exception. Wiles argues that his prior attorneys should have discovered-and should have presented to the court-evidence that he ingested “3 or 4 barbiturates shortly before entering the Klima home,” which prevented him from thinking “clearly” at the time of the offense. Br. at 11-12. Even if we accept this new evidence as true, even if we accept that his counsel did not know about this fact and even if we overlook the conspicuous oddity that Wiles himself did not tell his counsel about this background information, there is no prejudice and indeed the omission of this evidence likely benefited Wiles. For one thing, this evidence directly contradicts his confession to the crime, in which he denied consuming drugs on the day of the murder or within the previous twelve days. The claim therefore was readily impeachable, making it unlikely to change the outcome of the hearing for that reason alone. See Owens v. Guida, 549 F.3d 399, 411 (6th Cir.2008). For another, Wiles' mitigation strategy emphasized, quite understandably, that he had confessed truthfully in all respects to the crime, see Wiles, 1988 WL 59838, at *8, but this evidence would have undercut that mitigation theme. For still another, it is hardly self-evident that getting high on barbiturates before stabbing someone to death is the kind of evidence that makes a capital defendant look better in the eyes of a court as opposed to “mak[ing] him look even worse.” Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir.2006). Wiles had little to gain from this new evidence and much to lose by introducing it. He thus cannot show prejudice by its omission.
Third, Wiles contends that his counsel failed him by not investigating a head injury he sustained twelve days before the murder. As Wiles tells it, a man named Joe Kelly “jumped [him] and hit [him] on the head with a tire iron” when he was leaving a bar, knocking him unconscious. Br. at 12-13. He arrived at the emergency room with cuts on his face and with his right eye “swollen shut,” JA 568, and an examination showed that he had “multiple facial bone [fractures],” id. After doctors cleaned and closed his wounds, Wiles left the hospital against medical advice, only to return five days later complaining of “dizziness, somnolence and difficulty walking.” Id. Notably absent from the record is any evidence that Wiles was still experiencing symptoms from his head injury on the day he murdered Mark Klima. Wiles argues only that investigation by his counsel prior to the mitigation hearing, including “retention of a neurologist and a follow up CAT SCAN, may have assisted counsel ... in explaining to the fact finders a causal ... connection between the head injury and [his] uncharacteristic violent behavior.” Br. at 13-14. But such “speculation” as to the effects still-further investigation might have on the outcome of this theory at the mitigation hearing does not by itself establish prejudice. See Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir.2006). This claim, too, necessarily fails. All of these arguments considered, the state court of appeals reasonably applied Strickland in concluding that Wiles failed to show prejudice from the failure to present this additional evidence.
Wiles separately argues that his attorneys did not adequately prepare Dr. Willis Carpenter Driscoll, a psychologist, for the mitigation hearing: They gave Driscoll too little time to prepare for the hearing because they hired him a week before the hearing; Driscoll interviewed Wiles for just two hours and never spoke to any of his family, friends or coworkers; and Driscoll never reviewed Wiles' educational records. Driscoll's inadequate preparation, according to Wiles, led him to testify in a way that failed to convey a useful mitigation theory to the three-judge panel. Even if we accept this theory of ineffective assistance for the sake of argument, Wiles again has failed to show prejudice.
Driscoll's inadequate preparation, Wiles urges, caused Driscoll to admit a damning fact on cross-examination, namely that “one of the many factors” that motivated Wiles to kill Klima was that the boy was “the only witness” to the burglary. JA 1421. But it is hard to see how this admission could have affected the death sentence. By this stage in the case, the three-judge panel already had determined that Wiles killed Klima “for the purpose of escaping detection, apprehension, trial or punishment for another crime.” Wiles, 571 N.E.2d at 106. Once the panel found that fact to be true beyond a reasonable doubt, defense counsel had every reason to accept, rather than challenge, that premise of the guilt determination and to work with, rather than reargue, the point during the mitigation hearing. A psychologist's “admission” of a fact at a mitigation hearing, one already established beyond a reasonable doubt at the liability hearing, does not establish prejudice.
Nor has Wiles succeeded in showing that a better-prepared expert would have given more useful testimony. As an example of what a well-prepared expert would have said, he offers the affidavit of Robert Smith, who has a Ph.D., a license in clinical psychology and extensive clinical experience in that field, and who has interviewed Wiles and reviewed the relevant records in this case. But Smith's submission, too, adds little to what the court heard at the hearing.
Smith opines that “the antisocial behaviors reported by Mr. Wiles are directly related to his substance dependence” and says that the murder was a “direct result” of Wiles ingestion of barbiturates. JA 765, 767. As explained, however, linking Wiles' conduct to drug abuse was already in front of the panel and linking the crime to the recent consumption of barbiturates was inconsistent with his confession and with the prevailing theme of his case for leniency. The other explanation Smith offers for the murder was that Wiles had “interpersonal difficulties,” in particular a poor relationship with his parents and a brother who died shortly before Wiles began high school. JA 767. But, as mentioned, the three-judge panel heard considerable testimony regarding Wiles' difficult family circumstances, including Driscoll's opinion that Wiles' “emotional development ha[d] been arrested at the age of 10[to] 12” due, in part, to the “dearth of warmth from his father,” JA 1399, and that Wiles' desire “to punish himself” due to an overabundance of guilt led him to kill Klima, JA 1424. In the end, Wiles has not shown that he was prejudiced by his counsel's preparation of and reliance on Driscoll or that the state court of appeals unreasonably concluded otherwise.
For these reasons, we affirm.
BOYCE F. MARTIN, JR., Circuit Judge, concurring.
I concur in the panel opinion. Wiles has not shown that his counsel was unconstitutionally ineffective during the mitigation phase of his trial. * * * Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir.2005) (Martin, J., dissenting). At the same time, the system's necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.
The system's deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, --- U.S. ----, 128 S.Ct. 1520, 1548-49, 170 L.Ed.2d 420 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities.FN1 Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.
FN1. Here, I will focus on the public costs of capital punishment. But it has significant, often overlooked private costs as well. See, e.g., Thomas P. Sullivan, Efforts to Improve the Illinois Capital Punishment System: Worth the Cost?, 41 U. Rich. L.Rev.. 935, 967 (2007) (noting “the psychological and often the financial injuries inflicted on victims' families,” upon the defendant's family, and upon the defendants themselves); Charles S. Lanier & James R. Acker, Capital Punishment, The Moratorium Movement, and Empirical Questions: Looking Beyond Innocence, Race, and Bad Lawyering in Death Penalty Cases, 10 Psych. Pub. Pol. & L.. 577, 603 (2004) (discussing the “host of secondary victims” affected by capital punishment). And, while this is a matter that would benefit from further study, FN2 the evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole.FN3 Surprising as that may seem, the reason for it is simple: “lawyers are more expensive than prison guards.” FN4
FN2. See, e.g., Susan S. Everingham, Rand Corp., Investigating the costs of the Death Penalty in California (2008) (discussing challenges in assessing the total costs of the death penalty), available at www. rand. org/ pubs/ testimonies/ CT 300/. One aspect of this problem that merits further attention is the relationship between the threat of a capital charge and plea bargain rates. Compare Kent S. Scheidegger, Criminal Justice Legal Foundation, The Death Penalty and Plea Bargaining to Life Sentences (2009) (arguing that the availability of the death penalty affects plea bargain rates), available at www. cjlf. org/ papers/ wpaper 09- 01. pdf, with Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment, 8 Am. L. & Econ. Rev. 116 (2006) (concluding that availability of a capital charge affects the terms of plea bargains but not their frequency). FN3. For data on the costs of state capital cases, see California Commission on the Fair Administration of Justice, Final Report 147 (2008) (estimating that a system of life without parole would save $121.2 million annually); John Roman, et al., Urban Institute, The Cost of the Death Penalty in Maryland 2 (2008) (finding that average lifetime cost of a capital case is $1.9 million more than the average non-capital case); Washington State Bar Association, Final Report of the Death Penalty Subcommittee of the Committee on Public Defense (2006) (finding that the cost of a capital trial and post-conviction proceedings is $467,000 more than life without parole); Mary E. Forsberg, New Jersey Policy Perspective, Money for Nothing? The Financial Cost of New Jersey's Death Penalty Y (2005) (finding capital punishment created $253 million in additional costs from 1983 to 2005, or $11 million per year); State of Kansas, Legislative Division of Post Audit, Costs Incurred for Death Penalty Cases: A K-Goal Audit of the Department of Corrections 10 (2003) (estimating the median cost of a capital case to be $1.2 million through execution-70% more than life without parole); Indiana Criminal Law Study Commission, Commission Report on Capital Sentencing (2002) (finding death penalty system is 35-38% more costly than one of life without parole); S.V. Date, The High Price of Killing Killers: Death Penalty Prosecutions Cost Taxpayers Millions Annually, Palm Beach Post, Jan. 4, 2000, at 1A (estimating that the death penalty costs Florida an additional $51 million annually); Philip J. Cook & Donna B. Slawson, The Costs of Processing Murder Cases in North Carolina 78 (1993) (“The extra cost per execution of prosecuting a case capitally is more than $2.16 million.”); Christy Hoppe, Executions Cost Texas Millions Study Finds It's Cheaper to Jail Killers for Life, Dallas Morning News, Mar. 8, 1992, at 1 A (reporting that the cost of an average capital case was $2.3 million-three times as much as a non-capital case imposing a 40-year sentence); Pamela Manson, Matter of Life or Death: Capital Punishment Costly Despite Public Perception, It's Cheaper to Keep Killers in Prison, Ariz. Republic, Aug. 23, 1993, at A1; Stephen Magagnini, Closing Death Row Would Save State $ 90 Million a Year, Sacramento Bee, Mar. 28, 1988, at A1; Robert Spangenberg & Elizabeth R. Walsh, Capital Punishment or Life Imprisonment? Some Cost Considerations, 23 Loyola L.A. L.Rev. 45 (1989); Margot Garey, Comment, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U.C. Davis L.Rev. 1221 (1985).
For trial cost data on the federal level, see Jon B. Gould & Lisa Greenman, Judicial Conference Committee on Defender Services, Update on the Cost, Quality, and Availability of Defense Representation in Federal Death Penalty Cases 24 (2008) (finding the median defense cost of authorized cases to be $353,185 as opposed to $44,809 in non-authorized cases), available at www. uscourts. gov/ defender services/ FDPC_ Contents. cfm. The report does not address the costs of prosecution or post-conviction costs. FN4. U.C. Berkeley Law Professor Franklin Zimring, quoted in Sam Howe Verhovek, Across the U.S., Executions are Neither Swift Nor Cheap, N.Y. TIMES, February 22, 1995, at A1. To begin, capital cases involve more pre-trial and trial costs than non-capital cases.FN5 Capital cases are far less likely to be resolved through plea bargain,FN6 and they generally require far greater time, support services, and expertise to prepare.FN7 And capital trials are generally longer and more complex that non-capital trials. Beyond more attorneys and attorney time, capital cases tend to involve more experts and related expenses from experts and support staff.FN8 They also require a “death-qualified” jury,FN9 and bring the added costs of the “second trial” conducted during the penalty phase.FN10 And, because both sides of a capital case are usually funded at public expense, these additional costs must be counted twice in calculating the added cost of a capital prosecution. FN11
FN5. See, e.g., Roman et al., supra note 3, at 30 (“The majority (70%) of the cost differential between a death notice and a non-death notice case occurs during the trial phase. This difference is due to a greater number of pre-trial motions, longer and more intensive voir dire, longer trials and a greater amount of general preparation time.”). FN6. Roughly 95% of state and federal felony cases are resolved through plea bargain. Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 Tul. L.Rev.. 1237, 1238 (2008). Most capital cases, on the other hand, proceed to trial. Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. . 1, 11 (1995) (“80% of capital cases go to trial.”); Gould & Greenman, supra note 3, at 18 (reporting that 65% of capital cases handled by federal defenders between 1998 and 2004 went to trial). FN7. See, e.g., American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 3 (rev. ed. 2003) (“[D]eath penalty cases have become so specialized that defense counsel have duties and functions definably different from those of counsel in ordinary criminal cases.”). The ABA Guidelines go on to outline these duties and functions in detail. FN8. Gould & Greenman, supra note 3, at 29 (“The use of experts has a substantial influence on case cost.... [E]xperts were utilized in both authorized and non-authorized cases. There is a significant difference, however, in the prevalence, and hence cost, of expert assistance between authorized and non-authorized cases.”).
FN9. As the 2006 Report by the Washington State Bar explains, “Since a very large number of potential jurors likely will be excused, it is not uncommon for the court to summon over 1,000 potential jurors.... In a non-capital case, fewer than 100 potential jurors are typically summoned.” Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, supra note 3, at 16. Capital cases also involve much more searching, individualized voir dire than non-capital cases. As a result, jury selection in a capital case can take a month instead of one or two days. Id. at 16-17. FN10. See generally American Bar Association, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008). FN11. “[V]ery few” capital defendants can afford to pay for their own defense, so they rely upon public defenders or counsel appointed by the court under the Criminal Justice Act. Gould & Greenman, supra note 3, at 16-17. Capital cases also involve a significantly longer post-conviction appeal process than non-capital cases. Unlike non-capital cases, capital cases almost invariably proceed through all avenues of post-conviction relief, including direct appeal, state post-conviction proceedings, at least one federal habeas petition, and multiple petitions for certiorari. Naturally, this is because capital defendants (and advocacy groups) have a much stronger motive to pursue post-conviction remedies. But that is their right. Plus, experience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases.FN12 However, the upshot of higher rates of collateral attack and reversal is that state and federal courts are packed with capital cases,FN13 and the cases themselves take decades to wind their way through the system.FN14 More appeals means more costs, regardless of why the appeals arise. And reversal means repeating all or part of the process and thus duplicating its time and expense.
FN12. A prominent study of state and federal capital cases between 1973 and 1995 fixed the overall error rate in capital cases at 68% (as opposed to 15% in non-capital cases). James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error Rates in Capital Cases 1973-1995 at 8-9 (2000), available at www2.law.columbia.edu/instructional services/liebman/. The study further found that 40% of the death sentences that were upheld on direct appeal and through state post-conviction were subsequently overturned during federal habeas proceedings. Id. at 6. FN13. Including Wiles, 118 of Ohio's 166 death row inmates (71%) have cases pending in federal court. Richard Cordray, Ohio Attorney General, Capital Crimes Annual Report: State and Federal Cases 2008 at 22 (2009). 28 more (17%) have cases pending in state court. Id. FN14. This case, involving a death sentence imposed in 1986 (when the law clerk assisting me on this case was three years old), is unexceptional in this regard. The average elapsed time from sentence to execution in 2007 was 153 months-twelve years and nine months. Tracy L. Snell, Bureau of Justice Statistics, Capital Punishment, 2007-Statistical Tables (2008), available at www. ojp. usdoj. gov/ bjs/ pub/ html/ cp/ 2007/ cp 07 st. htm. The median elapsed time since sentencing for inmates on death row at the end of 2007 was 133 months. Id. So, in almost every way, capital cases are more expensive than non-capital cases.FN15 And given the death penalty's exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use. This is especially so given what the public is getting for its money-little more than the time of lawyers and judges and the “illusion” of capital punishment.FN16 Moral objections aside, the death penalty simply does not justify its expense.
FN15. This is in spite of the fact that capital defense services continue to be underfunded, much to the prejudice of indigent capital defendants. See generally Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime, but for the Worst Lawyer, 103 Yale L.J. 1835 (1994); see also Aba Moratorium Implementation Project, State Death Penalty Assessments: Key Findings (2007) (finding, among other things, “[T]hat ... (4) Capital indigent defense systems, whether statewide or county-by-county, generally are significantly underfunded; (5) Many states are failing to provide for the appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators and mitigation specialists; (6) Many states are requiring only minimal training and experience for attorneys handling death penalty cases; and (7) The compensation paid to appointed capital defense attorneys is often woefully inadequate, dipping to well under $50 per hour in some cases”) (emphasis added). FN16. Kozinski & Gallagher, supra note 6, at 3. Only nine of the thirty-six states which retain the death penalty carried out executions in 2008, a year in which there was a total of thirty-seven executions nationwide. Snell, supra note 14. At the end of 2007, there were 3,220 prisoners on death row. Id. Whatever one's opinion of the intractable debate over deterrence, the empirical evidence is too inconclusive to warrant much weight. See generally John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L.Rev.. 791 (2005) (conducting an exhaustive review of the empirical literature on the death penalty and concluding, “Our estimates suggest not just ‘reasonable doubt’ about whether there is any deterrent effect of the death penalty, but profound uncertainty. We are confident that the effects are not large, but we remain unsure even of whether they are positive or negative”). Recent news reports indicate that the cost of the death penalty is becoming part of the public debate on capital punishment and has begun to influence policymaking.FN17 That strikes me as a very positive development. I hope it continues.
FN17. See, e.g., Opponents Focus on Cost in Death Penalty Debate (National Public Radio April 1, 2009); Judy Kerr, What Price Vengeance, San Francisco Chronicle, Mar. 13, 2009, at A15; Saving Lives and Money, The Economist, Mar. 12, 2009, available at www. economi st.com/world/unitedstates/displayStory.cfm?story_id=13279051; Michelle Millhollon, Economics of Executions, Advocate Capitol News, Mar. 8, 2009, at 1A; Deborah Hastings, In Hard Times, Executions Become a Question of Cost, Associated Press, March 7, 2009, available at ww w.usatoday.com/news/nation/2009-03-07-exepensive-to-execute_N.htm; Steve Mills, In Many States, Cost is Slowly Killing Death Penalty, Chicago Tribune, March 7, 2009, available at archives.chicagotribune.com/ 2009/mar/07/nation/chi-death-penalty-costsmar08; Abigail Goldman, Debating the Cost of the Death Penalty, Las Vegas Sun, March 4, 2009, available at ww w.lasvegassun.com/news/2009/mar/04/debating-cost-death-penalty/; Martha Bellisle, Nevada Bill Requires Moratorium, Study of Death Penalty Cost, Reno Gazette-Journal, March 3, 2009, available at www. rgj. com/ article/ 20090303/ NEWS 18/ 90303060; Ed Quillen, The Death Penalty's Costs, Denver Post, March 1, 2009, available at www. denverpost. com/ perspective/ ci_ 11795714; Ian Urbina, Citing Cost, States Consider End to Death Penalty, N.Y. Times, February 25, 2009, at A1. In addition to New Mexico, which abolished the death penalty on March 18, 2009, a number of states, including Colorado, Nevada, Montana, Nebraska, Kansas, Maryland, and New Hampshire are reconsidering their capital punishment policies, in part because the cost of the death penalty. Colorado, for example, is currently considering a bill (H.B.09-1274) that proposes to abolish the death penalty and instead spend the money saved on investigating cold cases.