State v. Jones

[Cite as State v. Jones, 90 Ohio St.3d 403, 2000-Ohio-187.]

THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.

[Cite as State v. Jones (2000), 90 Ohio St.3d 403.]

Criminal law — Aggravated murder — Death penalty upheld, when.

(No. 98-1891 — Submitted July 25, 2000 — Decided December 27, 2000.)

APPEAL from the Court of Appeals for Hamilton County, No. C-970043.

During the early afternoon of Friday, September 2, 1994, Elaine Schub and

Joe Kaplan checked in as guests at the Embassy Suites Hotel in Blue Ash. Schub

was in town to see her grandson’s bar mitzvah, which was to be held the following

day. Schub’s best friend, Rhoda Nathan, flew in from New Jersey later that

afternoon also to attend the event on Saturday. Schub and Nathan shared the

bedroom of the hotel suite, while Kaplan stayed in the front room using a foldout

bed.

On Saturday morning, September 3, Schub and Kaplan awoke early to meet

relatives at the complimentary breakfast served on the first floor of the hotel. As

she and Kaplan left the room at approximately 7:28 a.m., Schub told Nathan to go

back to sleep, since she did not need to be at the temple that morning as early as

the family. Kaplan had the only room key for the group and made sure the door

was locked when he and Schub left for breakfast.
 At approximately 8:08 a.m., Schub and Kaplan finished breakfast and

returned upstairs to their room. Kaplan unlocked the door and discovered Nathan

lying nude on the floor. Employees and hotel guests rushed up to Room 237,

where Schub was found screaming and shaking. A cardiologist, a respiratory

therapist, and a nurse happened to be at the hotel at the time, and they came to the

room to help resuscitate Nathan.

Initially, witnesses thought Nathan had had a fall, perhaps brought on by a

heart attack, since there seemed to be little blood on or around Nathan. However,

further investigation revealed that Nathan’s hair was soaked with blood and that

she had suffered severe trauma to her head. When Nathan’s head was moved,

witnesses found a tooth on the floor. Later, Schub asked for and was given her

purse, which she had left in the hotel room during breakfast. Upon opening her

wallet, which was inside the purse, Schub noticed that money was missing.

During the commotion, Schub noticed that Nathan no longer had the pendant

necklace that she had been wearing earlier and that she always wore. The pendant

was a one-of-a-kind piece of jewelry that Nathan’s late husband had made from his

mother’s wedding band. It consisted of several connected gold bars, one

containing diamonds. According to Nathan’s daughter-in-law, Nathan never took

the pendant off. Nathan died that afternoon as a result of multiple traumas to her

head and body. The coroner’s office determined that the death was a homicide.

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 Police quickly set up a command center in a banquet room on the second

floor near the murder scene in Room 237. Police canvassed the rooms at the hotel

and took statements from guests and hotel employees working that day. Police

then began to concentrate their investigation on three particular hotel employees

who had prior criminal histories. Police cleared two of the employees through

further investigation and narrowed their investigation to defendant-appellant,

Elwood “Butch” Jones. Police discovered from interviews with other hotel

employees that appellant had injured his hand on the day Nathan was killed. This

fact pointed to appellant as a suspect because the crime at the hotel involved a

violent assault. Appellant had filed a claim for workers’ compensation for medical

benefits. The police thereafter subpoenaed and received the medical records for

the treatment of appellant’s hand injury.

On September 12, 1994, Sgt. Robert Lilley of the Blue Ash Police

Department spoke with one of appellant’s treating physicians, Dr. John

McDonough. Lilley learned through another police investigator that Dr.

McDonough had classified appellant’s injury as a fist-to-mouth injury and that Dr.

McDonough had asked appellant if he received the injury by punching someone in

the mouth. That same day, police went to the residence of Earlene Metcalfe in

Loveland. Metcalfe worked at the hotel and was a girlfriend of appellant, in

addition to being listed as a witness to appellant’s hand injury on his workers’

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compensation claim form. Upon arriving at Metcalfe’s residence, police found

appellant there, and both he and Metcalfe voluntarily agreed to answer questions at

the Blue Ash Police station concerning the homicide at the hotel.

At the police station, appellant was advised of his Miranda rights and signed

a waiver form. During the interview with Sgt. Lilley and Blue Ash Police Officer

Larry Stokes, appellant stated that he and Metcalfe arrived at the hotel on

September 3 at approximately 5:00 a.m. At that time, appellant signed out a hotel

master key at the front desk as he did every day at work. Since appellant was not

due to clean the hotel banquet rooms until 10:00 a.m., he began to help Metcalfe

set up the complimentary breakfast area. Shortly after 6:00 a.m., appellant learned

that a coworker would not be in to work that morning, so he went to the second

floor of the hotel to begin cleaning the banquet rooms. Appellant stated that at

around that time, he slipped on steps outside the hotel and fell, cutting his left hand

while taking trash out to the hotel dumpster. He then finished cleaning the Maple

banquet room and went downstairs to help with the hotel’s complimentary

breakfast.

According to Lilley, appellant was forceful and almost defensive when he

claimed that he worked at the breakfast from approximately 6:30 a.m. to 8:00 a.m.

that day. Appellant further claimed that he was cleaning tables in the restaurant

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dining area when he heard screams from the second floor as well as a trouble call

over a coworker’s employer-provided walkie-talkie.

Appellant told Lilley that he again hurt his hand in a banquet room later that

day and that he really thought nothing more of the injury until it started bothering

him several days later on September 6. Appellant reiterated that he never left the

restaurant on September 3 between 6:30 and 8:00 a.m. and asserted that he was

never inside Room 237, since he had no reason to be in any of the guest rooms at

the hotel. Lilley asked if he was involved in the murder, and appellant declared

that he wanted to talk to an attorney before he answered any more questions. At

that point, the interview ceased.

The police secured Metcalfe’s consent to search her residence and also

obtained a warrant to search a vehicle owned by appellant, which was parked in

Metcalfe’s driveway in Loveland. In addition, police obtained a search warrant for

appellant’s residence on Morman Avenue in Cincinnati. While police seized many

items of apparel from the two residences, none of them yielded any trace evidence

of blood. However, the search of appellant’s car produced several items of

evidence. Inside the toolbox in the trunk of appellant’s car was the unique pendant

belonging to Nathan. Also recovered from the toolbox was a master key to the

hotel, which could open Room 237, where the murder took place. Police also

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recovered door security chains, which were later used in attempting to match

marks on Nathan’s body found on autopsy photos.

The last test results on the seized items came back in August 1995, and the

case was later submitted to the grand jury. On September 27, 1995, the grand jury

indicted appellant on two counts of aggravated felony-murder (during an

aggravated burglary and during an aggravated robbery), and separate counts of

aggravated burglary and aggravated robbery. Death-penalty specifications

attached to each aggravated murder count alleged that appellant was the principal

offender in the aggravated murder during a burglary and the principal offender in

the aggravated murder during a robbery or committed the offenses with prior

calculation and design. Ultimately the prosecution proceeded only on the first

alternative, that appellant was the principal offender. R.C. 2929.04(A)(7). Police

arrested appellant at his place of employment in downtown Cincinnati later that

day and took him to the District 1 police station for processing.

While at the District 1 headquarters, appellant was shown a copy of the

indictment and told he was under arrest for the murder of Rhoda Nathan, as well as

for burglary and the robbery involving her pendant necklace. At that point,

appellant inquired, “What necklace?” Sgt. Lilley then produced a photo sheet of

the pendant recovered from appellant’s car and placed it on the table. Appellant

then stated that he had never seen it before in his life. Sgt. Lilley told appellant

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that the pendant had been recovered from the trunk of his car. Appellant declared,

“Not in my fucking car.”

A jury trial was held wherein numerous witnesses were called by both the

prosecution and defense. Among the prosecution witnesses was Dr. John

McDonough, who was appellant’s physician during his hand surgery. Dr.

McDonough testified that he took a culture from the wound in appellant’s left hand

and that testing indicated a “mixed flora” of organisms. One of the organisms

detected was eikenella corrodens, an organism usually found in dental plaque,

which Dr. McDonough described as extremely rare in hand injuries. Dr.

McDonough testified that, within a reasonable degree of medical certainty, the

infection to appellant’s hand was caused by a fist-to-mouth injury because of the

presence of eikenella corrodens. This type of injury is sometimes referred to as a

“fight bite.” The defense put into evidence the testimony of an expert, Dr. Joseph

Solomkin, who questioned the likelihood of Dr. McDonough’s conclusion. Dr.

Solomkin testified that it was possible that the eikenella corrodens had come from

some source other than an assault victim’s mouth.

After deliberation, the jury found appellant guilty as charged.

At the mitigation hearing, appellant maintained his innocence and refused to

allow defense counsel to present any mitigation witnesses. Appellant permitted

counsel to argue only residual doubt on his behalf at the mitigation hearing. The

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trial judge specifically asked, “Mr. Jones, is that accurate, sir?” Appellant replied,

“Yes, it is, Your Honor.”

The defense requested an instruction on residual doubt, but the court refused

to instruct based on State v. Garner (1995), 74 Ohio St.3d 49, 56-57, 656 N.E.2d

623, 632, which held that a defendant is not entitled to an instruction identifying

residual doubt as a mitigating factor.

The jury recommended death, and the court adopted the jury’s death-

sentence recommendation. At his sentencing hearing, appellant indicated that he

twice refused to plead guilty to a charge of manslaughter and that he did not kill

Nathan.

Upon appeal, the court of appeals affirmed the convictions and death

sentence.

The cause is now before this court upon an appeal as of right.

__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W.

Springman, Jr., Assistant Prosecuting Attorney, for appellee.

Elizabeth E. Agar and Roxann H. Dieffenbach, for appellant.

__________________

ALICE ROBIE RESNICK, J. Appellant, Elwood Jones, has raised twenty-six

propositions of law. We have reviewed each and have determined that none

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justifies reversal of appellant’s conviction for aggravated murder. Pursuant to R.C.

2929.05(A), we have also independently weighed the aggravating circumstances

against the mitigation evidence, and reviewed the death penalty for appropriateness

and proportionality. For the reasons that follow, we affirm appellant’s conviction

and death sentence.

INEFFECTIVE ASSISTANCE

In his first four propositions of law, appellant contends that trial counsel

provided ineffective representation, thereby depriving him of a fair trial in both

phases. Reversal of a conviction for ineffective assistance requires that the

defendant show, first, that counsel’s performance was deficient and, second, that

the deficient performance prejudiced the defense so as to deprive the defendant of

a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674, 693. Accord State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373.

Failure to Assert Physician-Patient Privilege

In his first proposition of law, appellant argues that trial counsel were

ineffective in failing to object to or prevent testimony protected by the physician-

patient privilege of R.C. 2317.02(B). Appellant contends that his trial counsel

simply missed the issue of physician-patient privilege and that his trial counsel

never deliberately made a tactical decision not to raise the issue.

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 During trial, the prosecution called Dr. John McDonough to testify

concerning appellant’s hand injury. This testimony was incriminating to appellant,

since other evidence elicited at trial revealed that Nathan was struck in the face

with a “considerable amount of force” that broke her jaw. One of Nathan’s teeth

was found in her stomach during the autopsy. Another tooth was found under

Nathan’s head on the hotel room floor. Dr. McDonough concluded that appellant’s

injury to his hand was a fist-to-mouth injury due to the presence of the eikenella

corrodens organism found almost always in dental plaque. This evidence was a

key component of the state’s circumstantial case against appellant and pointed to

him as the killer. The other key component was the discovery of Nathan’s pendant

in the toolbox in the trunk of appellant’s car.

Although defense counsel lodged several objections during Dr.

McDonough’s testimony, none of these objections attempted to assert the

physician-patient privilege. Nor did defense counsel file a motion in limine to

prevent Dr. McDonough’s testimony or to prevent use of appellant’s medical

records. In addition, defense counsel did not file a motion to quash the subpoena

requesting appellant’s medical records. If defense counsel had used one of these

avenues to assert the physician-patient privilege, the issue would have been

directly before the trial court, and the trial court would have ruled on the

applicability of the privilege. Since no issue regarding the physician-patient

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privilege was raised at trial, we must consider the question in the context of

ineffective assistance of counsel.

We find that trial counsel were not ineffective in failing to raise the issue of

physician-patient privilege, because we determine that the privilege was

inapplicable in the circumstances of this case. For the following reasons, even if

counsel had objected to Dr. McDonough’s testimony, the trial court would have

been required to overrule the objection and allow Dr. McDonough to testify.

R.C. 2921.22(B) requires that physicians and certain others giving aid to an

injured person report to law enforcement personnel gunshot or stab wounds and

further requires reporting “any serious physical harm to persons that the physician

* * * knows or has reasonable cause to believe resulted from an offense of

violence.”

The statute applies here even though Dr. McDonough did not report the

injury. Dr. McDonough suspected that the injury was a fist-to-mouth injury when

tests revealed the presence of the eikenella corrodens, and he questioned

appellant’s version of how he received the injury. Dr. McDonough’s opinion of a

fist-to-mouth injury was substantiated when the police contacted him with the

information that appellant was a suspect in the murder investigation. At that point,

Dr. McDonough’s suspicions about the injury and the police information conveyed

to him coalesced to support his belief that the injury was caused by an offense of

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violence. If Dr. McDonough had learned that appellant was a suspect from a

source other than the police (e.g., a news report), he would have been required to

report the injury pursuant to R.C. 2921.22, given his personal suspicions about the

nature of the injury. As it was, he was already in contact with the police, so the

reporting was no longer required. The situation is no different than if Dr.

McDonough had reported appellant’s injury on his own initiative.

Appellant urges that, even assuming that Dr. McDonough had a duty to

report the injury under R.C. 2921.22(B), there is a further question of whether the

statute leads to waiver of the physician-patient privilege. Appellant argues that the

privilege remains intact even if the injury is reported to the police.

In State v. Antill (1964), 176 Ohio St. 61, 26 O.O.2d 366, 197 N.E.2d 548,

paragraph four of the syllabus, this court, in considering the predecessor statute to

R.C. 2921.22(B), held, “Where a physician is required by [the former statute] to

report to a law-enforcement officer a gunshot wound or wound inflicted by a

deadly weapon, the former may testify, without violating the physician-patient

privilege, as to the description of the wounded person, as to his name and address,

if known, and as to the description of the nature and location of such wound,

obtained by examination, observation and treatment of the victim.”

We see no reason to distinguish between a report of a “gunshot wound or

wound inflicted by a deadly weapon” as specified in Antill and a report of “serious

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physical harm” pursuant to R.C. 2921.22 at issue in the present case. The policies

implicated in the statutory duties to report are identical in the two situations. If the

details of the wound have already been reported, “[t]he only purpose that

sustaining the privilege can now serve is to obstruct the course of justice.” Antill,

176 Ohio St. at 65, 26 O.O.2d at 368, 197 N.E.2d at 552. We find that the holding

of Antill is applicable to the situation in the instant case.

Appellant argues that in State v. Smorgala (1990), 50 Ohio St.3d 222, 553

N.E.2d 672, this court established that there is no public policy exception to the

privilege statute regarding evidence sought by the state in criminal prosecutions.

Appellant’s citation of Smorgala is inapposite. In that case, this court held at

paragraph one of the syllabus that “[c]ourts may not create a public policy

limitation upon the physician-patient privilege in order to allow otherwise clearly

inadmissible evidence to be received in drunk driving cases.” The situation in the

case at bar, and in Antill, is different from that in Smorgala, where a judicially

created policy limiting the physician-patient privilege was found inapplicable

because it conflicted with the statute giving rise to the privilege, R.C. 2317.02(B).

At issue instead in the instant case, as in Antill, is the interplay of two statutes, the

physician-patient privilege statute, R.C. 2317.02(B), and the medical personnel

reporting statute, now R.C. 2921.22(B). In this case we are dealing with a statute,

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R.C. 2921.22, not judicially created policy; hence, the rule of Smorgala is not

implicated.

Our conclusion is bolstered by the Legislative Service Commission 1973

comment to Am.Sub.H.B. No. 511. The portion of R.C. 2921.22(B) at issue in this

case—the requirement that medical personnel report “serious physical harm” when

they know or have reasonable cause to believe the harm resulted from an offense

of violence—is essentially unchanged from the 1972 enactment of R.C.

2921.22(B). See Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1951. The 1973

comment to H.B. No. 511 provides:

“This section also requires doctors * * *, and others who give aid to the sick

or injured, to report gunshot and stab wounds, and other serious injuries which they

know or have reasonable cause to believe resulted from a crime of violence, such

as the ‘battered child syndrome.’ The reporting requirement under this part of the

section is absolute, i.e., no privilege attaches in the cases covered.”

Even if appellant’s counsel had raised the physician-patient privilege, they

would not have been successful. Appellant’s trial counsel, therefore, were not

deficient in failing to raise the physician-patient privilege as an issue. The

requirements of Strickland are not met. Appellant’s first proposition is overruled.

Failure to Object

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 Under his second proposition of law, appellant asserts ineffective assistance

where trial counsel failed to interpose a specific objection to the admission of

statements made to police after appellant invoked his right to counsel. In

particular, appellant complains that counsel failed to raise the issue of

“constructive interrogation” concerning statements he made at District 1

headquarters after his arrest.

This proposition lacks merit. Appellant concedes that counsel filed a motion

to suppress statements that he made to police on three different occasions. In fact,

a suppression hearing was held, at the close of which the court ruled that all

statements made by appellant, both before and after his arrest, were voluntary.

Even assuming counsel could have raised the issue of constructive interrogation

more specifically, there is no reasonable probability that the result of the trial

would have been different but for counsel’s errors. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373, paragraph three of the syllabus. There was no interrogation,

constructive or otherwise, after appellant was arrested and booked at District 1

headquarters. Moreover, the statements made by appellant were at worst only

marginally incriminating. See Rhode Island v. Innis (1980), 446 U.S. 291, 298-

302, 100 S.Ct. 1682, 1688-1690, 64 L.Ed.2d 297, 306-308, construing the meaning

of “interrogation” for purposes of Miranda v. Arizona (1966), 384 U.S. 436, 86

15
S.Ct. 1602, 16 L.Ed.2d 694. Accordingly, we find appellant’s second proposition

is not well taken.

Failure to Rehabilitate Jurors

In his third proposition of law, appellant contends that counsel failed to

attempt rehabilitation of jurors who opposed the death penalty during voir dire.

Appellant also asserts that counsel failed to challenge for cause a juror (Hamilton),

who admitted that he might be unable to put aside his experience as a police officer

and objectively consider the evidence presented. Appellant’s claims of ineffective

assistance in this context are unfounded.

Appellant cites six jurors whom counsel should have rehabilitated: Chavez,

Noe, Cripe, Baker, Brooks, and Cook. However, voir dire revealed that all were

unalterably opposed to the death penalty and that their strong views “would

prevent or substantially impair the performance” of their duties as jurors. See State

v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph

three of the syllabus. Moreover, the failure to probe views of jurors who were

excused for cause under death qualification, does not constitute ineffective

assistance, since trial counsel is in a better position to determine if jurors can be

rehabilitated. Bradley, 42 Ohio St.3d at 143, 538 N.E.2d at 381.

With respect to the failure to challenge Juror Hamilton for cause, the

transcript reveals no ground that counsel could have successfully asserted as a

16
challenge. Hamilton indicated that he would follow the law: “I may not agree

with it but it’s my job and I have to do it.” Therefore, we overrule appellant’s third

proposition.

Failure to Present Mitigating Evidence

In his fourth proposition of law, appellant alleges ineffective assistance

based on counsel’s failure to present available mitigation evidence. At the

beginning of the mitigation hearing, defense counsel informed the court that

appellant had always maintained he was innocent in the murder of Nathan and that

the only mitigation he wanted counsel to present was residual doubt. The trial

judge specifically asked appellant if that was accurate, and appellant replied, “Yes,

it is, Your Honor.” On the second day of the mitigation hearing, the court

informed the defense that it would not instruct the jury on residual doubt based on

the decision in Garner, 74 Ohio St.3d at 56-57, 656 N.E.2d at 632.

As we noted recently in State v. Ashworth (1999), 85 Ohio St.3d 56, 63, 706

N.E.2d 1231, 1238, even if the court attempted to require an attorney to present

mitigating evidence, it cannot force an unwilling defendant to provide that

evidence to his attorney. Moreover, where the defendant does not want to present

mitigating evidence, no societal interest counterbalances the defendant’s right to

control his own defense. State v. Tyler (1990), 50 Ohio St.3d 24, 28, 553 N.E.2d

576, 584.

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 Here, nothing suggests that appellant was not competent to forgo presenting

any mitigating evidence. Nor did appellant ever indicate a change of heart after the

court’s refusal to instruct on residual doubt. In fact, at his sentencing hearing

appellant again maintained his innocence and indicated that he had twice refused to

accept a plea bargain on manslaughter. In light of all the foregoing, counsel were

not ineffective for failing to present available mitigating evidence. We overrule

appellant’s fourth proposition.

VOIR DIRE/PRETRIAL ISSUES

Suppression Issues

In his eleventh proposition of law, appellant complains that the affidavit of

Officer Stokes in support of the warrant to search appellant’s vehicle contained

material misstatements of fact. Consequently, appellant submits that the warrant

was invalid and that evidence seized pursuant to the warrant should have been

suppressed. In particular, appellant contends that Stokes grossly misstated his

experience in the affidavit, because the Nathan murder case was his first homicide

investigation. In addition, appellant asserts that police “had no reason to believe

they would find bloody clothes or traces of blood on Defendant’s clothing or

possessions.”

In the affidavit supporting the request for a warrant, Officer Stokes stated:

18
 “The affiant is a trained and experienced police officer who knows through

his training and experience that when a victim is beaten as badly as Nathan was in

this offense, there will be a transfer of blood from the victim to the assailant, and a

transfer of that blood from the assailant to items in a vehicle or a residence that he

would come in contact with.”

Contrary to appellant’s assertions, the above paragraph does not constitute a

gross misstatement of fact for an officer with twenty years of police experience.

Simply because this was Stokes’s first homicide investigation does not mean that

he would be ignorant of the probability of trace evidence of blood on the clothing

or possessions of a murder suspect who allegedly committed a violent assault. In

fact, his years of experience would indicate otherwise.

In reviewing a similar claim, we noted that under Franks v. Delaware

(1978), 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682, an affidavit

supporting a warrant enjoys a presumption of validity. State v. Roberts (1980), 62

Ohio St.2d 170, 178, 16 O.O.3d 201, 206, 405 N.E.2d 247, 253. In order to

overcome the presumption, the defendant has “the task of supporting his

allegations by more than conclusional accusations, or the mere desire to cross-

examine.” Id. at 178, 16 O.O.3d at 206, 405 N.E.2d at 253. Although this was

Stokes’s first homicide investigation, appellant has not shown that Stokes lacked

experience in investigating assaults or other crimes where blood was transferred.

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In addition, appellant does not show that police suspected that trace blood would

not appear on appellant’s clothing or personal possessions. Appellant’s eleventh

proposition is not well taken.

In his twelfth proposition of law, appellant argues that statements he made

on the day he was arrested, after he invoked his right to counsel, should have been

suppressed.

During the suppression hearing, Officer Stokes testified that when appellant

was being booked at the District 1 headquarters in Cincinnati after his arrest,

appellant asked Sgt. Lilley: “What’s going on? What am I being charged with?”

Lilley responded: “You’re charged with aggravated murder of Rhoda Nathan, the

aggravated burglary of Rhoda Nathan’s room.” Appellant then asked Lilley:

“What burglary, what theft are you talking about?” Lilley then placed a photo of

the pendant on the desk in front of appellant. Appellant then asked: “What

necklace?” Appellant looked at the photo and claimed that he had never seen it

before in his life. Lilley then stated: “It was in the trunk of your car.” Appellant

then denied it had been in his car. The conversation between appellant and the

police ceased. The trial court ruled that appellant’s statements were voluntarily

given.

The police advised appellant of his Miranda rights during the voluntary

questioning on September 12, 1994, at the close of which he declared he wanted an

20
attorney, and on the day of his arrest on September 27, 1995. Sgt. Lilley

acknowledged at the suppression hearing that the police knew they could not

interrogate appellant on the day he was arrested, since he had previously invoked

his rights to remain silent and to obtain counsel a year earlier.

At a suppression hearing, the evaluation of evidence and the credibility of

witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357,

366, 582 N.E.2d 972, 982, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1

OBR 57, 58, 437 N.E.2d 583, 584. See, also, State v. DeHass (1967), 10 Ohio

St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus; State v.

DePew (1988), 38 Ohio St.3d 275, 277, 528 N.E.2d 542, 547. Here, appellant

initiated the conversation by asking the police what he was being charged with.

Appellant was not asked any questions. Therefore, the trial court could

legitimately conclude that appellant’s statements to police after he was arrested

were not the result of a police interrogation, but were voluntary and not elicited in

violation of his constitutional rights. See Oregon v. Bradshaw (1983), 462 U.S.

1039, 1045-1046, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405, 412-413 (plurality

opinion), construing Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378. Even assuming error in the admission of appellant’s statements, we

find that any error was harmless. See State v. Richey (1992), 64 Ohio St.3d 353,

361, 595 N.E.2d 915, 923. Appellant’s twelfth proposition is overruled.

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 Voir Dire Issues

In his nineteenth proposition of law, appellant contends that the systematic

exclusion of jurors opposed to the death penalty violated his right to a fair and

impartial jury. In his twentieth proposition of law, appellant argues that the

exclusion of jurors opposed to the death penalty resulted in a jury biased in favor

of guilt and of death.

Appellant’s arguments are not well taken. The voir dire transcript reveals

that the trial court used the correct standard for death qualification of jurors

established in Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d

841. See, e.g., State v. Wilson (1996), 74 Ohio St.3d 381, 388, 659 N.E.2d 292,

302. Moreover, the trial judge properly determined that the death-penalty views of

those excused “would prevent or substantially impair” their performance of their

duties as jurors. Rogers, 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984,

paragraph three of the syllabus. We overrule appellant’s nineteenth and twentieth

propositions of law.

TRIAL ISSUES

Admissibility Issues

In his ninth proposition of law, appellant asserts that he was prejudiced when

the trial court failed to exclude from evidence the portion of the police officer’s

notes where appellant invoked his right to counsel. Appellant submits that even

22
though the trial court issued a curative instruction, the danger remained that the

challenged portion attracted the jury’s attention to an improper inference that could

be drawn from its admission.

Clearly, it is improper for evidence to be admitted that a defendant invoked

his or her right to counsel. See Doyle v. Ohio (1976), 426 U.S. 610, 618-619, 96

S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98; State v. Chinn (1999), 85 Ohio St.3d 548,

560-561, 709 N.E.2d 1166, 1178. However, after the officer testified that

appellant wanted to talk to an attorney, the trial court immediately reminded the

jury that anyone has the right to invoke the right to counsel. In addition, the court

charged the jury that “[appellant] also has a constitutional right to stop talking to

the police and request counsel at any time. * * * The fact that he stopped talking to

the police and invoked his right to counsel must not be considered for any

purpose.”

Juries are presumed to follow the court’s instructions, including instructions

to disregard testimony. See State v. Zuern (1987), 32 Ohio St.3d 56, 61, 512

N.E.2d 585, 590; State v. Henderson (1988), 39 Ohio St.3d 24, 33, 528 N.E.2d

1237, 1246; State v. Loza (1994), 71 Ohio St.3d 61, 75, 641 N.E.2d 1082, 1100.

Any error was rendered harmless by the trial court’s curative instructions. We

reject appellant’s ninth proposition.

23
 In his tenth proposition of law, appellant raises two arguments concerning

the testimony of Dr. McDonough. In the first instance, appellant claims that it was

error for the trial court to allow Dr. McDonough to testify as an expert for the state

and to offer an expert opinion that appellant’s injury was caused by a fist-to-mouth

injury due to the presence of eikenella corrodens. However, the determination of

an expert’s qualifications to testify on a particular subject is within the sound

discretion of the trial court. State v. Awkal (1996), 76 Ohio St.3d 324, 331, 667

N.E.2d 960, 968. Accordingly, any question concerning the admission or

exclusion of expert testimony is measured by the abuse-of-discretion standard. See

State v. Bidinost (1994), 71 Ohio St.3d 449, 453, 644 N.E.2d 318, 322.

The trial court did not abuse its discretion by permitting Dr. McDonough to

testify as an expert on appellant’s injury. Dr. McDonough teaches a course at the

University of Cincinnati dealing with human bites and infections of the hand

caused by bite or fist-to-mouth injuries. While Dr. McDonough does not

specialize in infectious diseases, his expertise in the area of clenched-fist or bite

injuries to hands made him well qualified to testify on this subject. His lack of

expertise in infectious diseases would relate only to the weight of the evidence, not

its admissibility. State v. Jells (1990), 53 Ohio St.3d 22, 29, 559 N.E.2d 464, 471.

Moreover, we believe that such testimony is properly admitted where the expert

24
merely observed the medical procedure and testified as to its results. See State v.

Eley (1996), 77 Ohio St.3d 174, 181, 672 N.E.2d 640, 648-649.

In the second instance, appellant claims that the trial court erred in

overruling defense counsel’s objection to Dr. McDonough’s testimony derived

from appellant’s medical records. Under this argument, appellant asserts that since

Dr. Cherney prepared the medical records in issue, Dr. McDonough should not

have been allowed to testify as to their contents, since the records themselves were

never admitted into evidence and Dr. McDonough had no personal knowledge of

the matters discussed by Dr. Cherney with appellant. State v. Chapin (1981), 67

Ohio St.2d 437, 442, 21 O.O.3d 273, 277, 424 N.E.2d 317, 321. Although Dr.

Cherney prepared the medical reports, Dr. McDonough supervised the surgery of

appellant’s hand and signed the reports prepared by Dr. Cherney. Moreover, Dr.

McDonough was personally involved in the treatment and diagnosis of appellant’s

hand injury. The trial court did not err in permitting Dr. McDonough to testify as

to the contents of appellant’s medical reports, since the reports reflected matters

within his personal knowledge. Appellant’s tenth proposition is overruled.

Under his thirteenth proposition of law, appellant complains that the trial

court erred in admitting expert opinion testimony concerning the correlation

between wound patterns on the victim’s body and the shape of objects allegedly

used in the murder of Nathan. Appellant asserts that the expert opinion testimony

25
of FBI specialist William J. Stokes and Dr. William Oliver of the Armed Forces

Institute of Pathology was not based upon widely accepted knowledge, facts, and

principles, in violation of Evid.R. 702(C)(1).

In his video deposition, FBI specialist Stokes testified that he used a

“rectifying enlarger,” the only one he knew of being used for forensic

photography, to correct the plane of the reference scale on autopsy photos of

Rhoda Nathan. Stokes explained that the scale on the autopsy photos was not on

the same level as the wounds on the victim’s body. The rectifying enlarger

compensates for perspective by making the wounds on the different plane properly

match the scale that is on the autopsy photos. Stokes used State Exhibit 6, a

walkie-talkie available to appellant while he was working at the hotel, to help

establish the scale of the wounds on the autopsy photo. Stokes then opined that the

characteristics of the radio matched up with certain wounds on Nathan’s body

depicted on State Exhibit 5.

Lieutenant Colonel William Oliver, a medical doctor and forensic

pathologist with the Armed Forces Institute of Pathology, also testified in a video

deposition. Dr. Oliver was provided autopsy photos of Nathan to evaluate pattern

injuries on her body. He converted the photos to digital images to compare certain

wounds with physical evidence linked to the homicide, i.e., metal door chains

found in appellant’s toolbox and the walkie-talkie. Dr. Oliver opined that there

26
was “a correspondence in shape and scale” between the door chains and marks on

the victim’s body and that he could not rule out “a correspondence” with markings

on the victim and the walkie-talkie.

Because neither expert offered an opinion with any reasonable degree of

scientific certainty, appellant claims that the testimony should not have been

admitted as expert testimony.

Both Stokes and Dr. Oliver were presented as experts in their fields. The

standard for determining the admissibility of expert testimony is set forth in

Evid.R. 702: whether expert testimony is admissible depends on whether it will

assist the trier of fact to understand matters “beyond the knowledge or experience

possessed by lay persons.” See, generally, State v. Buell (1986), 22 Ohio St.3d

124, 129, 22 OBR 203, 207, 489 N.E.2d 795, 801. The state claims that in any

event, the opinions were nevertheless admissible, at least as lay witness testimony

under Evid.R. 701. See Jells, 53 Ohio St.3d at 28-29, 559 N.E.2d at 470-472. In

addition, the state cites State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 191, 616

N.E.2d 909, 915, where we held that experts could testify as to possibility rather

than only probability, and that such testimony becomes an issue of sufficiency and

not admissibility.

Agent Stokes’s testimony was admissible under Evid.R. 702(C). The

comparisons he made between the walkie-talkie and wounds on Nathan’s body

27
were similar to techniques used to compare shoeprints and fingerprints in other

cases. The reliability of the comparison in this case was in fact called into question

by defense counsel during cross-examination. The reliability of Dr. Oliver’s

conclusions was also effectively challenged on cross-examination when he

conceded that he could not say for certain that a walkie-talkie or hotel door chains

made the wound markings on Nathan’s body.

Since counsel was permitted to fully cross-examine the expert witnesses, and

since the trial court properly instructed the jury that they were to decide what

weight to give such testimony, no abuse of discretion by the trial court occurred.

Buell, 22 Ohio St.3d at 132-133, 22 OBR at 203, 489 N.E.2d at 803-804.

Accordingly, we overrule appellant’s thirteenth proposition.

Sufficiency of the Evidence

In his twenty-first proposition of law, appellant argues that the trial court

should have granted his motions for acquittal, pursuant to Crim.R. 29(A), because

the evidence presented was insufficient to support his convictions.

When reviewing a claim of insufficient evidence, the relevant inquiry is

whether any rational factfinder, viewing the evidence in a light most favorable to

the state, could have found the essential elements of the crime proven beyond a

reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d

28
492, paragraph two of the syllabus. The verdict will not be disturbed unless the

reviewing court finds that reasonable minds could not reach the conclusion reached

by the trier of fact. Id. at 273, 574 N.E.2d at 503.

In its brief before this court, the state sets forth nine facts that collectively

provide substantial evidence of appellant’s guilt. Four of the nine facts cited by the

state derive from Dr. McDonough’s testimony and medical records, which

revealed that appellant’s hand wound was infected by the eikenella corrodens

organism that is usually found in dental plaque. At the crime scene, a tooth of

Nathan’s was discovered lying under her head. Another tooth was recovered from

her stomach during the autopsy.

Looking at the remaining facts set forth by the state, appellant was working

at the hotel at the time of the murder. Appellant also had possession of a master

key that could open the hotel room where Nathan was murdered.

In addition, appellant’s statement as to his whereabouts at the time of the

murder could not be substantiated. Moreover, the wound markings on the victim

were consistent with objects issued to appellant by the hotel. Testimony at trial

noted a similarity between wound markings on Nathan’s body and the shape of

objects (walkie-talkie and hotel door chains) that appellant possessed or had access

to.

29
 Most damaging was the fact that the victim’s unique pendant was found in

the trunk of appellant’s car. This crucial piece of evidence plainly linked appellant

to the murder. Given all of the foregoing, sufficient evidence exists to support

appellant’s conviction under the test set forth in Jenks. Therefore, we overrule

appellant’s twenty-first proposition.

Jury Instructions

In his twenty-third proposition of law, appellant asserts that the court’s

instruction on reasonable doubt based on the definition in R.C. 2901.05(D)

constitutes reversible error. However, beginning with State v. Jenkins (1984), 15

Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph eight of the syllabus, we

have uniformly upheld use of the statutory definition of reasonable doubt in capital

case jury instructions. See, e.g., State v. Moore (1998), 81 Ohio St.3d 22, 37, 689

N.E.2d 1, 15. We overrule appellant’s twenty-third proposition.

SENTENCING ISSUES

Jury Instructions

In his fourteenth proposition of law, appellant asserts error in the trial court’s

failure to instruct on residual doubt, which led the state to argue that appellant had

forfeited any right to a weighing of aggravating circumstances against mitigating

factors, since no mitigating evidence was presented. Appellant further contends

30
that the trial court erred in repeatedly instructing the jury that their verdict was a

“recommendation.”

Both of these arguments lack merit. Residual doubt is not an acceptable

mitigating factor. State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112,

syllabus. In addition, use of the term “recommendation” does not diminish the

jury’s sense of responsibility, accurately reflects Ohio law, and does not constitute

error. State v. Woodard (1993), 68 Ohio St.3d 70, 77, 623 N.E.2d 75, 80-81. We

overrule appellant’s fourteenth proposition.

In his twenty-fourth proposition of law, appellant argues that the court erred

in using the statutory definition of reasonable doubt during penalty-phase

instructions. Admittedly, the trial court’s reference to the “truth of the charge” is

not the preferred language for a penalty-phase reasonable-doubt instruction.

Moore, 81 Ohio St.3d at 37, 689 N.E.2d at 15. However, any such error is

harmless where the trial court clearly instructs the jury that, before recommending

death, it must be convinced beyond a reasonable doubt that the aggravating

circumstances outweigh the mitigating factors, and that the prosecution has the

burden of proof on the issue. State v. Taylor (1997), 78 Ohio St.3d 15, 29-30, 676

N.E.2d 82, 96. Since the trial court clearly instructed the jury in this manner,

appellant’s twenty-fourth proposition is not well taken.

Proportionality Review

31
 In his sixteenth proposition of law, appellant claims that his sentence is

disproportionately severe in relation to the crime committed, and to sentences

imposed in similar cases, and thus violates the Eighth Amendment to the United

States Constitution. In his seventeenth proposition of law, appellant asserts that his

sentence is disproportionately severe when compared to other death penalty cases

in Ohio and Hamilton County. In his twenty-fifth proposition of law, appellant

contends that proportionality review as currently employed does not comport with

either federal or state constitutional law, nor does it follow the plain language of

R.C. 2929.05.

None of appellant’s propositions warrants a reversal. We have consistently

rejected these same arguments because (1) there is no federal constitutional

requirement for proportionality review in capital cases, see, e.g., Moore, 81 Ohio

St.3d at 41-42, 689 N.E.2d at 18; and (2) the statutorily required proportionality

review entails comparing only those cases where death is imposed. State v. Steffen

(1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the

syllabus. Proportionality review of appellant’s sentence will be accomplished as

part of our independent sentence review. We overrule appellant’s sixteenth,

seventeenth, and twenty-fifth propositions.

Failure to Merge Murder Counts

32
 In his eighteenth proposition of law, appellant contends that the submission

to the jury of two counts of aggravated murder, where only one conviction could

lawfully be entered, tainted the jury’s consideration of its sentencing

recommendation. Appellant submits that his death sentence must be set aside,

since it cannot be determined whether the inclusion of a second count of

aggravated murder affected the jury’s decision to recommend the death penalty.

Clearly, since both counts of aggravated murder involved the same victim,

the trial court should have merged these counts, State v. Huertas (1990), 51 Ohio

St.3d 22, 28, 553 N.E.2d 1058, 1066, instead of merely imposing “concurrent”

death sentences. We confronted this same argument in Moore, 81 Ohio St.3d at

39, 689 N.E.2d at 17, where we held that although imposing death sentences on

both counts constitutes error, the error is procedural and harmless beyond a

reasonable doubt. See State v. Brown (1988), 38 Ohio St.3d 305, 317-318, 528

N.E.2d 523, 538-539. Moreover, merger of the death sentences as part of our

independent assessment can readily cure any error that taints the jury’s sentencing

verdict. See State v. Cook (1992), 65 Ohio St.3d 516, 527, 605 N.E.2d 70, 82.

Accordingly, we reject appellant’s eighteenth proposition.

Consecutive Sentencing

In his twenty-second proposition of law, appellant claims that a trial court

cannot legally impose a term of imprisonment to be served consecutively to a death

33
sentence. However, the issue is rendered moot either by the execution of the death

sentence or by the failure to execute the death sentence. See, e.g., State v. Davie

(1997), 80 Ohio St.3d 311, 328, 686 N.E.2d 245, 262; Moore, 81 Ohio St.3d at 38,

689 N.E.2d at 16. Appellant’s twenty-second proposition is overruled.

Cumulative Error

Under his twenty-sixth proposition of law, appellant contends that individual

and collective errors, whether raised by counsel or not, necessitate reversal of his

conviction and death sentence. Nevertheless, appellant received a fair trial, and

any error is found to be nonprejudicial. “Such errors cannot become prejudicial by

sheer weight of numbers.” State v. Hill (1996), 75 Ohio St.3d 195, 212, 661

N.E.2d 1068, 1084. Accordingly, we overrule appellant’s twenty-sixth

proposition.

PROSECUTORIAL MISCONDUCT

In his fifth, sixth, seventh, and eighth propositions of law, appellant asserts a

number of instances of prosecutorial misconduct throughout trial. Appellant

argues that when the alleged misconduct is considered individually and

collectively, the result must be a reversal of his convictions and death sentence.

Appellant’s fifth proposition of law is essentially a summary introductory

argument of the other three propositions submitted by appellant.

34
 The test for prosecutorial misconduct is whether remarks were improper and,

if so, whether they prejudicially affected substantial rights of the accused. State v.

Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. The

touchstone of analysis “is the fairness of the trial, not the culpability of the

prosecutor.” Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71

L.Ed.2d 78, 87.

In the first group of comments cited by appellant under his sixth proposition,

he claims that the prosecutor improperly appealed to the jurors’ passions when he

criticized defense counsel for attempting to shift culpability for the murder to other

hotel employees: “It’s very unfortunate. Their names have been dragged through

the mud in front of the cameras, in front of the press, as being accused of murder.

A murder that Elwood Jones did.” Defense counsel objected, but the court simply

instructed the jury: “[Y]ou heard the evidence as well as I did. I’ll let you decide

what was said about McCall and Henry.” The prosecutor’s comment appears to be

a fair rebuttal to the defense strategy of shifting suspicion of the murder to others

who worked at the hotel, and can hardly be characterized as an improper appeal to

the jurors’ passions.

Appellant also complains that the prosecutor misstated the evidence in

asserting that only the banquet department had the kind of walkie-talkie used for

comparison to the victim’s wounds. Defense counsel’s objection was not ruled

35
upon, but one prosecution witness did in fact testify that State Exhibit 6, a walkie-

talkie of that kind, was one used by the banquet department, in which appellant

worked. Although one defense witness asserted that different departments at the

hotel had walkie-talkies of that kind, the prosecutor’s statement was harmless.

Appellant next cites comments where the prosecutor argued that the defense

“conceded that a radio made that mark” on the victim’s body, and where the

prosecutor asserted and further intimated that appellant’s girlfriend, Earlene

Metcalfe, lied for him. Both comments were objected to, and the trial court

sustained both objections. However, the prosecutor continued to claim that

Metcalfe lied, even though she never testified at trial. In addition, the prosecutor

argued that shoes found during the search of her residence belonged to appellant,

even though no evidence at trial supported that assertion. We agree with the court

of appeals that the comments concerning Metcalfe and the shoes were improper

because they alluded to facts not in evidence. However, these isolated comments

were not outcome-determinative and did not deprive appellant of a fair trial.

Appellant next argues under his seventh proposition of law that the

prosecutor denigrated the role and trial tactics of defense counsel, and suggested

that defense counsel were attempting to hide the truth. Here, appellant is referring

to the prosecutor’s remarks on defense counsel’s attempt to cast suspicion for the

murder on other hotel employees. During trial, defense counsel elicited testimony

36
from hotel employee Lisa Dietz that another hotel employee, Bill McCall, who left

the hotel on the day of the murder, had access to master keys and radios at the

hotel. After the defense rested, the state called Bill McCall as a rebuttal witness,

and he refuted the implication that he had been involved in the murder. During

closing argument, the prosecutor commented on defense counsel’s “search for

doubt, not a search for the truth.” This remark, not objected to, was not outcome-

determinative and did not deprive appellant of a fair trial.

In addition, appellant points to comments made during the prosecutor’s

closing argument concerning defense expert Dr. Solomkin’s testimony regarding

the nature of appellant’s hand injury. Defense counsel’s objection to the comments

was overruled. Appellant argues that the prosecutor’s comments improperly

implied that the defense expert would say whatever defense counsel wanted him to

say. However, these comments were made during argument. Given the substantial

evidence submitted in this case, we find that these isolated comments made during

argument were nonprejudicial.

Appellant also claims that the prosecutor misrepresented defense counsel’s

closing argument during the mitigation phase, and that the defense had “forfeited at

this stage of the trial. * * * They are asking you to fill in these blanks that are their

mitigation. There is none. They have presented none and now they want you to

basically fill in some things for them, to create evidence as it were.” However,

37
these comments constituted fair comment by the prosecutor and were neither

improper nor prejudicial. Appellant chose not to present any mitigation except for

residual doubt.

Under his eighth proposition of law, appellant asserts prosecutorial

misconduct in the prosecutor’s use of the nature and circumstances of the offense

as an aggravating circumstance. During the rebuttal closing argument at the

mitigation phase, the prosecutor said:

“What is worth more to him at that point, the life of this lady who has

absolutely done nothing to him or a trinket? He could have left her alive. What’s

his choice? Right here. (Indicating)

“And thankfully it was that greed that tripped him up in this case. Had he

left [sic] that go, maybe he would have never been caught but he decided at that

point and that’s the weighing process that he went through. That’s the value he put

on that lady’s life.

“I trust when you weigh that aggravating circumstance you will give Miss

Nathan’s life more worth than he did.”

Defense counsel’s objection that the prosecutor was arguing the nature and

circumstances of the offense as an aggravating circumstance was overruled. The

court of appeals found this statement to be improper and erroneous, but found the

comment to be nonprejudicial. This type of prosecutorial argument was directly

38
proscribed in State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311,

paragraph two of the syllabus:

“It is improper for prosecutors in the penalty phase of a capital trial to make

any comment before a jury that the nature and circumstances of the offense are

‘aggravating circumstances.’ “

Unlike Wogenstahl, the defense attorney did object immediately after the

comment was made. The comment violated the law enunciated in Wogenstahl.

But in view of the entire penalty-phase proceedings, we find the error was

harmless. See State v. Williams (1983), 6 Ohio St.3d 281, 6 OBR 345, 452 N.E.2d

1323.

In the foregoing consideration, we have found several instances of error that

were not outcome-determinative. A similar situation arose in State v. Lott (1990),

51 Ohio St.3d 160, 555 N.E.2d 293. In Lott, 51 Ohio St.3d at 166, 555 N.E.2d at

301, this court, quoting United States v. Hasting (1983), 461 U.S. 499, 508-509,

103 S.Ct. 1974, 1980, 76 L.Ed.2d 96, 106, observed that “ ‘given the myriad

safeguards provided to assure a fair trial, and taking into account the reality of the

human fallibility of the participants, there can be no such thing as an error-free,

perfect trial, and that the Constitution does not guarantee such a trial. * * *

[Citations omitted.] * * *

39
 “ ‘ * * * [I]t is the duty of a reviewing court to consider the trial record as a

whole and to ignore errors that are harmless including most constitutional

violations.’ ” In sum, we overrule appellant’s fifth, sixth, seventh, and eighth

propositions.

CONSTITUTIONALITY

In his fifteenth proposition of law, appellant challenges Ohio’s death penalty

scheme on numerous constitutional grounds. However, we have previously found

these arguments to lack merit. See, e.g., State v. Zuern (1987), 32 Ohio St.3d 56,

512 N.E.2d 585; Jenkins, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State

v. Watson (1991), 61 Ohio St.3d 1, 572 N.E.2d 97; State v. Coleman (1988), 37

Ohio St.3d 286, 525 N.E.2d 792; and Buell, 22 Ohio St.3d 124, 22 OBR 203, 489

N.E.2d 795. Therefore, these claims may be summarily rejected. State v.

Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. We summarily

overrule appellant’s fifteenth proposition.

INDEPENDENT REVIEW AND PROPORTIONALITY

Appellant was charged with and convicted of being the principal offender in

the aggravated murder of Rhoda Nathan during the course of an aggravated

burglary and aggravated robbery. R.C. 2929.04(A)(7). These counts are now

merged for sentencing purposes. See Moore, 81 Ohio St.3d at 39, 689 N.E.2d at

17.

40
 Nothing in the nature and circumstances appears mitigating. On the

morning of September 3, 1994, appellant was working at the Embassy Suites Hotel

in Blue Ash, when he used his master key to open the hotel room where Rhoda

Nathan was staying. Upon encountering Nathan, appellant beat her to death with

his hands, a walkie-talkie radio, and other items. Before leaving the scene of the

crime, he stole money out of Elaine Schub’s purse and stole the diamond pendant

necklace that Nathan always wore around her neck.

Since appellant chose not to present any mitigating evidence, there is little

evidence for us to review. Nothing about appellant’s history, character, or

background, as reflected in the record, suggests mitigating factors other than that

he was employed, and was married. Appellant maintained his innocence

throughout his trial, and claimed to have twice turned down offers to plead guilty

to a lesser offense. The only mitigating factor appellant has presented is residual

doubt, which is not an acceptable mitigating factor under R.C. 2929.04(B). See

McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus. Accordingly, we hold

that the merged aggravating circumstances outweigh any mitigating factors beyond

a reasonable doubt.

We find the death penalty in this case to be both appropriate and

proportionate when compared with similar capital cases combining murder with

aggravated burglary, see, e.g., Wogenstahl, 75 Ohio St.3d 344, 662 N.E.2d 311;

41
State v. Campbell (1994), 69 Ohio St.3d 38, 630 N.E.2d 339; and murder with

aggravated robbery, see, e.g., State v. Green (1993), 66 Ohio St.3d 141, 609

N.E.2d 1253; Davie, 80 Ohio St.3d 311, 686 N.E.2d 245.

Based on all the foregoing, we affirm appellant’s convictions and sentences,

including the death sentence.

Judgment affirmed.

DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., PFEIFER and COOK, JJ., concur separately.

_______________

COOK, J., concurring. I concur in the majority’s affirmance of the

conviction and death sentence. I disagree, however, with the resolution of Jones’s

first proposition of law, in which Jones argues that his trial lawyers performed

ineffectively in failing to object to Dr. McDonough’s testimony on grounds of

physician-patient privilege. See R.C. 2317.02(B). The majority finds no

ineffective assistance because the trial court “would have been required to

overrule” any objection to Dr. McDonough’s testimony. This conclusion stems

from the belief that Dr. McDonough could have disclosed Jones’s injury to the

authorities under R.C. 2921.22(B), thereby resulting in the loss of any evidentiary

privilege. I cannot join in the majority’s analysis because I view it as misapplying

the reporting and privilege statutes.

42
 R.C. 2317.02(B)(1) states that a physician shall not testify “concerning a

communication made to the physician * * * by a patient in that relation or the

physician’s * * * advice to a patient.” In turn, “communication” is broadly defined

to include “acquiring, recording, or transmitting any information, in any manner,

concerning any facts, opinions, or statements necessary to enable a physician * * *

to diagnose, treat, prescribe, or act for a patient.” R.C. 2317.02(B)(4)(a). Thus,

the privilege covers a patient’s mere exhibition of an injury to his physician as well

as any oral or written communications between patient and physician. Baker v.

Indus. Comm. (1939), 135 Ohio St. 491, 14 O.O. 392, 21 N.E.2d 593, paragraph

one of the syllabus. A physician-patient “communication” also includes records,

charts, laboratory results, and the physician’s diagnosis. R.C. 2317.02(B)(4)(a);

see, also, State v. Webb (1994), 70 Ohio St.3d 325, 334, 638 N.E.2d 1023, 1032.

This broad definition of the “communication” covered by the physician-patient

privilege encompasses much of the evidence and testimony elicited from Dr.

McDonough. The testimony and evidence about Jones suffering a hand injury, the

diagnosis of it, the surgery performed, and the laboratory results concerning the

eikenella corrodens organism were all protected by the privilege.

The majority decides that R.C. 2921.22(B) provides a statutory exception to

the physician-patient privilege and that the evidence and testimony obtained from

Dr. McDonough were therefore admissible. R.C. 2921.22(B) imposes a duty upon

43
physicians “to report to law enforcement authorities any gunshot or stab wound

treated or observed by the physician * * * or any serious physical harm to persons

that the physician * * * knows or has reasonable cause to believe resulted from an

offense of violence.” Because Dr. McDonough suspected that fist-to-mouth

contact caused Jones’s hand injury, the majority determines that R.C. 2921.22(B)

applies even though Dr. McDonough did not actually report the injury to law

enforcement authorities.1

In support of its conclusion, the majority relies on State v. Antill (1964), 176

Ohio St. 61, 26 O.O.2d 366, 197 N.E.2d 548, which interpreted the predecessor

statute to R.C. 2921.22(B) as permitting physician testimony without violating the

physician-patient privilege. In Antill, this court explained that the purpose of the

physician-patient privilege is to encourage patients to disclose fully all their

symptoms to their physicians “without fear that such matters will later become

public.” Antill, supra, 176 Ohio St. at 64-65, 26 O.O.2d at 368, 197 N.E.2d at 551.

The court noted, however, that this purpose has already been undermined when a

physician performs the statutory duty to disclose treatment of a person injured by a

deadly weapon. Id. at 65, 26 O.O.2d at 368, 197 N.E.2d at 552. Because the main

purpose of the privilege had already been compromised, “[t]he only purpose that

sustaining the privilege can now serve is to obstruct the course of justice.” Id. The

44
court thus found no reason to recognize the privilege as a basis for excluding a

physician’s testimony at trial.

The majority applies the Antill reasoning to this case despite the fact that Dr.

McDonough did not report Jones’s injury to police under R.C. 2921.22(B). But

Antill’s reasoning suggests only that the physician-patient privilege is lost when

there has been an actual report pursuant to the physician’s statutory duty. Indeed,

the Antill court emphasized that “[t]he publicity against which the privilege is

supposed to protect has already taken place” because the details of the wound

“must have been reported by the physician to a law-enforcement officer.”

(Emphasis added.) Antill, 176 Ohio St. at 65, 26 O.O.2d at 368, 197 N.E.2d at

552. In this case, however, because Dr. McDonough did not report Jones’s injury,

no “publicity” of it had yet taken place. The majority’s reasoning therefore

extends the Antill rationale to a situation where the purpose of the privilege could

have been, but was not actually, compromised by disclosure.

Even assuming that the majority’s extension of Antill is a logical one, Antill

is itself flawed and deserves reconsideration. The Antill court basically concluded

that the duty to disclose under R.C. 2921.22’s predecessor created an exception to

the physician-patient privilege in R.C. 2317.02. This view is unsupported by either

the disclosure statute or the privilege statute. R.C. 2317.02(B) provides a

testimonial privilege that allows a patient to prevent his or her doctor from

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testifying on certain matters arising out of the physician-patient relationship. It is

subject to numerous built-in exceptions, none of which is applicable here. See

R.C. 2317.02(B)(1)(a) to (c). In contrast, R.C. 2921.22(B) commands a doctor to

report patient information to law enforcement that would otherwise be confidential.

The disclosure statute does not, however, command the doctor to testify about

those matters in court. The extension of R.C. 2921.22(B)’s reporting duty into an

exception to the R.C. 2317.02(B) privilege mistakenly blurs the distinction

between the duty of confidentiality, which the duty of disclosure supersedes, and

an evidentiary privilege, which is unaffected by disclosure.2

What the Antill court created, and what the majority endorses today, is an

additional exception to the testimonial privilege (based on the public interest in

detecting crime) that the General Assembly has not specifically provided by

statute. But the General Assembly does not need judicial assistance in this regard.

Significantly, it has recognized exceptions to the physician-patient privilege in

situations involving a duty to disclose. For example, R.C. 2921.22(E)(5) expressly

states that “the physician-patient relationship is not a ground for excluding

evidence regarding a person’s burn injury or the cause of the burn injury in any

judicial proceeding” arising from the duty to report burn injuries under R.C.

2921.22(E). Similarly, R.C. 2921.22(F)(2) also states that “information regarding

the report” of domestic violence under R.C. 2921.22(F)(1) is admissible and shall

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not be excluded by the physician-patient privilege. Thus, the legislature apparently

recognizes that a duty to disclose does not necessarily destroy the physician-patient

testimonial privilege. Other states have likewise recognized the distinction

between a reporting duty and an evidentiary privilege, enacting statutes or

evidentiary rules that exempt information and testimony (such as that given by Dr.

McDonough in this case) from the physician-patient privilege. See, e.g.,

Kan.Stat.Ann. 60-427(e) (no privilege for information required to be reported by

physician or patient); Vt.R.Evid. 503(d)(6) (no privilege extends to medical

conditions required to be reported by statute); Alaska R.Evid. 504(d)(5) (no

privilege applies to information that physician, psychotherapist, or patient is

required to report) and 504(d)(7) (no physician-patient privilege applies in a

criminal proceeding); West’s Ann.Cal.Evid.Code 994 and 998 (no physician-

patient privilege in a criminal proceeding). While I do not necessarily disagree

with the Antill court’s balancing of the physician-patient privilege with the public

interest in criminal justice, the Constitution commits that balancing to the General

Assembly and not to this court. See State v. Smorgala (1990), 50 Ohio St.3d 222,

223-224, 553 N.E.2d 672, 674-675. Accordingly, I would hold that R.C.

2921.22(B) is not a statutory exception to the physician-patient privilege in R.C.

2317.02(B).

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 I therefore disagree with the majority that the trial court would have been

required to overrule an objection to Dr. McDonough’s testimony based on

physician-patient privilege. I also believe that Jones’s trial counsel performed

deficiently in failing to raise this objection. By failing to object, Jones’s trial

counsel in effect waived the privilege and allowed Dr. McDonough to offer a link

in the state’s circumstantial case. Dr. McDonough’s testimony about the presence

of the eikenella corrodens organism in Jones’s hand wound corroborated the

prosecution’s theory of a fist-to-mouth injury. This testimony and the medical

evidence along with it tied Jones to the fatal blows inflicted upon Nathan.

Nevertheless, I do not believe that, but for the deficient performance by trial

counsel in failing to raise the physician-patient privilege, there is a reasonable

probability that Jones would have been acquitted. Even if Jones’s trial counsel had

raised the objection, they would not have been successful in completely barring Dr.

McDonough from testifying. Dr. McDonough’s testimony that he treated Jones

was not privileged. See Jenkins v. Metro. Life Ins. Co. (1961), 171 Ohio St. 557,

562, 15 O.O.2d 14, 17, 173 N.E.2d 122, 125 (physician-patient privilege does not

bar testimony regarding the fact of professional consultation by a person on a

certain date). This fact of consultation, coupled with the police’s discovery from

hotel employees that Jones had injured his hand on the morning of Nathan’s

murder, provided circumstantial evidence of Jones’s identity as the killer. Further,

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there was evidence that Nathan’s wounds were inflicted by objects consistent with

door chains found in Jones’s car and a walkie-talkie that Jones used while working

at the hotel. Another key component of the state’s case was that Nathan’s missing

pendant was discovered in Jones’s car. Given all of the evidence against Jones, I

cannot conclude that exclusion of Dr. McDonough’s testimony about Jones’s

injury would have led to a different trial outcome. I would therefore reject the

appellant’s first proposition of law on that basis.

While expressing these reservations, I concur in the judgment of the

majority.

MOYER, C.J., and PFEIFER, J., concur in the foregoing concurring opinion.

FOOTNOTES:

1. The threshold requirement for triggering R.C. 2921.22(B)’s reporting

duty is the physician’s observation of any gunshot wound, stab wound, or serious

physical harm that the physician knows or believes to have resulted from an

offense of violence. As Jones had no gunshot or stab wounds, the only remaining

predicate for claiming a duty to report on the part of Dr. McDonough is serious

physical harm. Dr. McDonough arguably treated Jones for “serious physical

harm” within the statutory definition of that term; Jones was hospitalized and

underwent surgery for his hand injury. See R.C. 2901.01(A)(5)(a) and (c).

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 2. The majority cites the Legislative Service Commission’s Commentary

to Am.Sub.H.B. No. 511 (which enacted R.C. 2921.22[B]) to support its

conclusion that the disclosure statute codifies an exception to the physician-patient

testimonial privilege. The majority emphasizes the commission’s comment that

“[t]he reporting requirement under this part of the section is absolute, i.e., no

privilege attaches in the cases covered.”

While at first glance the phrase “no privilege attaches” seems compelling, it

becomes increasingly less so when examined in context. Indeed, the phrase comes

at the end of a sentence describing the nature of the reporting requirement. The

commission’s comment makes clear that no privilege applies when a doctor is

required to report to law enforcement under R.C. 2921.22(B). In other words,

there is no “privilege” to prevent a doctor from making the report required by R.C.

2921.22(B). Whether the testimonial privilege of R.C. 2317.02(B) remains,

however, is an entirely different matter. The majority’s view to the contrary

inappropriately elevates the commission’s comment from an explanation of R.C.

2921.22(B) to a codified exception to R.C. 2317.02(B). And no such exception

appears in the statutory language.

50