Following his conviction for Burglary, Ferguson served time in a
drug treatment program and received a 2-day pass on December 21,
His murder spree began four days later on
Christmas Day in Dayton when he attacked and killed a disabled
relative, 61 year old Thomas King, with a kitchen knife. Ferguson
stole two televisions and a radio that he sold to buy crack cocaine.
The next day, Ferguson broke into the home of an
elderly couple who were his former neighbors, attacked them with a
kitchen knife, then beat and stomped them to death.
Ferguson waived his right to a jury, pled guilty
to all charges, and waived his right to presentation of any
mitigating evidence. A court-appointed clinical psychologist then
conducted an evaluation of the defendant and deemed him competent of
State v. Ferguson, 108 Ohio St.3d 451, 844 N.E.2d 806 (Ohio
2006). (Direct Appeal)
Three T-bone steaks cooked medium rare, two breaded chicken breasts
with a side of ranch dressing, chocolate ice cream and Mountain Dew.
"Mom, Dad, I love you both. I love you a lot. I wish you all the
best." Ferguson, who previously said he worshipped Satan, made a
sign that some consider to be a symbol of the devil as he died.
While he was on the lethal-injection table — with his left arm
extended palm up — he extended his index and little fingers to make
the sign and held that pose for several minutes before lapsing into
Ohio Department of
Reahabilitation and Correction
NAME: Darrell W. Ferguson
INMATE #: A456727
CRIME: Aggravated Murder, Escape, Aggravated Burglary, Robbery,
Aggravatyed Robbery, Tampering With Evidence
COUNTY: Montgomery County
Admission Date: 09/25/03
MEDIA ADVISORY - FOR IMMEDIATE RELEASE May 31,
2006 - Inmate Ferguson Execution
Media Instruction and Information Sheet
The Ohio Department of Rehabilitation and
Correction (DRC) Public Information Office will be accepting
credentials/identification information from media outlets that are
planning to cover the execution of inmate Darrell Ferguson,
Montgomery County. This information must be faxed to the DRC Public
Information Office no later than noon on Friday, July 14, 2006. The
fax number is (614) 752-1171. The execution is scheduled for 10:00
a.m. on Wednesday, July 26, 2006, at the Southern Ohio Correctional
Facility in Lucasville, Ohio.
There are two forms of identification that need
to be submitted (one picture ID) and a letter (on affiliate
letterhead) from the news organization you represent. This letter
should include your home address, as well as your work and home
telephone numbers. A list will be generated from the information
received and you will be cleared only after completing this process.
You must have the same credentials with you at the site. If you are
not pre-credentialed you will not gain access to the prison Media
Center. The Media Center is a secure area that is being provided
inside the prison. Non-credentialed media will be permitted to cover
the event from the prison parking lot.
The Media Center for credentialed media will be
activated at 4:30 p.m. the day prior to the execution. A media
briefing will be held at 4:45 p.m. that day. The Media Center will
reopen at 6:00 a.m. the day of the execution. There will be a
briefing at 7:45 a.m. the day of the execution. All media must
arrive at the Media Center by 8:30 a.m. in order to be allowed in
the center. No persons will be permitted to enter or leave the
center after 8:30 a.m. until the execution is carried out.
Media witnesses and pool reporters must report to the prison no later than
7:45 a.m. on the morning of the execution. The Media Center will
close at 1:00 p.m. At that time any remaining media will be escorted
out of the prison by the media teams.
There will be no access to other areas of the
prison. Movement will be limited to and from the Media Center. For
security purposes, photographs and taped video may not be taken
outside of the Media Center. Television and radio crews will be able
to bring their equipment into the center. Live remote shots must be
done outside due to security at the institution.
Immediately following the execution, the official
spokeswoman from DRC will make a formal announcement regarding the
time of death. Following that statement the pool reporters and media
witnesses will hold a briefing. A written transcript of the inmate’s
final statement will be provided at the conclusion of the briefing.
No further interviews with DRC staff will be conducted. No one will
be permitted to leave the center until the briefings have been
Each affiliate will be permitted two persons in
the Media Center. There will be reserved seating for major media
outlets. There will be 48 telephone lines available in the Media
Center, as well as a bank of pay phones for 800 numbers or calling
card use located outside. A mult-box will be provided. Each media
outlet should bring proper equipment. No microphones will be
permitted on the briefing podium. DRC will supply media witnesses to
the execution with paper, pens and pencils.
Per DRC’s media policy for the execution the Ohio
Legislative Correspondents Association will select a print reporter.
The Director of DRC will select a television pool reporter through a
lottery system comprised of the four major news affiliates from the
county of commitment. The radio station will be selected by the DRC
Public Information Office from the county of commitment
This information is subject to change. For
further information please contact the DRC Public Information Office
at (614) 752-1150.
Darrell Wayne "Gator" Ferguson
(January 30, 1978 - August 8, 2006) was executed by
the state of Ohio. He was the youngest inmate put to
death in Ohio since 1962. He spent 2 years and 10
months on death row and had waived all appeals after
his 2003 conviction for three counts of aggravated
On December 26, 2001, Ferguson
murdered 61-year-old Thomas S. King, Sr. at King's
home on the east side of Dayton. Ferguson broke into
King's home, grabbed a knife from the kitchen, and
stabbed King, who was disabled and used crutches,
repeatedly in the chest. He then stole televisions
and stereos from King's home and sold the items to
buy crack cocaine.
The next day, Ferguson murdered
68-year-old Arlie Fugate and his wife, 69-year-old
Mae Fugate. Ferguson broke into the Fugate home and
stabbed the couple with a knife from their kitchen.
Ferguson then proceeded to stomp on their bodies
with steel-toed boots. He later wrote a handwritten
letter in which he admitted that he intentionally
and maliciously murdered the victims.
Ferguson committed the murders
after getting a two-day pass from a drug treatment
program he had been ordered to attend following a
burglary conviction. The victims let Ferguson into
their homes in Dayton because they knew him.
Ferguson's mother had been married to King's brother,
and Ferguson's family had once lived near the
Although his attorneys maintained
that IQ tests revealed Ferguson was borderline
mentally retarded, Ohio courts found him competent
to stand trial for three murders under the standards
set forth by the United States Supreme Court in
Atkins v. Virginia. He taunted his victims'
families at the sentencing phase of his trial,
saying he took satisfaction and pleasure in killing
their loved ones. "I will never show any remorse,
even on the day I die", he said.
As he lay on the execution table
in Lucasville, Ferguson, who said he worshipped
Satan, told his parents he loved them and extended
the index and little fingers on his outstretched
left hand in a gesture known to some as il
cornuto or the sign of the devil. He held the
sign until he lapsed into unconsciousness. He was
pronounced dead at 10:21 a.m.
Remorseless killer executed at Lucasville
By Alan Johnson - Columbus Dispatch
Tuesday, August 8, 2006
LUCASVILLE, Ohio — Remorseless to the end,
Darrell Ferguson was executed today for the Christmastime murders of
three elderly, disabled Dayton residents in 2001. Ferguson, 28, died
by injection at the 10:21 a.m. at the Southern Ohio Correctional
Facility near Lucasville.
He did not look at the victim's family, six of
whom were observing from behind a glass wall. But he said to his
parents, watching from an adjoining room, “Mom and dad, I love you
both. I love you a lot. I wish you all the best.” His mother, Donna
Davis, was crying and praying as she watched her son die. At one
point she said, “I love you baby . . . you're in God's hands now.”
Ferguson, who previously said he worshipped Satan,
made a sign that some consider to be a symbol of the devil as he
died. While he was on the lethal-injection table — with his left arm
extended palm up — he extended his index and little fingers to make
the sign and held that pose for several minutes before lapsing into
unconsciousness. Afterward, there was as little sympathy for
Ferguson as he showed his victims, one of whom was on crutches,
another had cancer, and a third was in a wheelchair.
Immediately after the execution, a family friend
of one of the victims, Chris Purdue, said, "Goodnight. I hope he
stays in hell forever." Ferguson, a long-time drug user and high-school
wrestler — he now weighs 285 pounds — taunted his victims' families
at the sentencing phase of his trial two years ago when he said he
took satisfaction and pleasure in killing their loved ones. “I will
never show any remorse, even on the day I die.” He didn't.
Ferguson was convicted for stabbing and stomping
to death Thomas King, 61, on Christmas Day in 2001. The following
day, he killed Arlie Fugate, 68, and his wife, Mae, 69. Robbery was
the motive in all three murders, officials said. Ferguson used the
money to buy drugs.
Seeking a speedy execution, Ferguson waived what
would have been years of legal appeals to hasten his death. He was
the fourth Ohioan executed this year and the 23rd since the state
resumed capital punishment in 1999.
Ohio executes triple-murderer
who asked for death
Aug 8, 2006
COLUMBUS, Ohio (Reuters) - The state of Ohio on
Tuesday executed a triple murderer who stabbed and stomped his
elderly victims and later begged his trial judge to be put to death.
Darrell Ferguson, 28, was pronounced dead at 10:21 a.m. EDT (1421
GMT) following a lethal injection, said officials at the Southern
Ohio Correctional Facility in Lucasville. "Mom, Dad, I love you both.
I love you a lot. I wish you all the best," Ferguson said in his
Ferguson's murder spree began on Christmas Day in
2001 in Dayton, Ohio, where he attacked a relative, Thomas King, 61,
with a kitchen knife and stole two televisions and a radio that he
sold to buy crack cocaine. The next day, Ferguson robbed and
murdered an elderly couple who were his former neighbors.
Ferguson pleaded guilty and offered no evidence
in his own defense, pleading with a judge: "I is asking you in my
right state of mind, would you please find it in good will to give
me the death penalty." A state-ordered mental examination declared
him competent. "By his own words, Ferguson is a remorseless,
sadistic and incorrigible killer," Ohio Supreme Court Justice Alice
Resnick wrote in upholding the sentence.
For his last meal, Ferguson had three steaks, two
chicken breasts, chocolate milk and a soft drink.
The execution was Ohio's fourth this year and the
state's 23rd since 1999 when it resumed executions. It was the
1,038th execution in the United States since capital punishment was
restored in 1976.
State executes man who said he enjoyed slayings
By JoAnne Viviano - Akron Beacon Journal
Associated Press - Tue, Aug. 08, 2006
LUCASVILLE, Ohio - A man who called Satan his
lord and said he enjoyed killing three people was executed Tuesday,
keeping his promise to show the family of his victims no remorse for
stabbing and beating them and stomping on them with steel-toed boots.
Darrell Ferguson's mother said he made up the
Satan worshipping and the claim that he took pleasure in the
killings to ensure he was executed. "He didn't worship Satan. He
used Satan to be put to death because he didn't want to spend the
rest of his life in prison," said Donna Davis, who watched the
execution by injection at the Southern Ohio Correctional Facility. "He's
in God's hands now, and Satan is running." During the execution, he
made a fist and extended his index and pinky fingers, which some
people view as a sign of the devil. When asked about the symbol,
Davis said she doesn't know what it means.
Ferguson, 28, the youngest person put to death in
Ohio since 1962, asked for the death penalty at sentencing and chose
not to pursue appeals, which could have delayed his execution for
He was the second inmate executed using the
state's new lethal injection protocol, adopted after an execution in
May was delayed when prison staff struggled to find a useable vein
on that inmate, who asked them to find another way to kill him.
Prison staff gave Ferguson's veins more close examinations, and the
guidelines called for two injection sites to be prepared and a new
method of ensuring veins stay open.
Ferguson said nothing before he died to the
witnesses for the victims. He taunted the victims' family at his
sentencing in 2003, saying that if released from prison, he would
pick up where he left off. "I will never show any remorse, even on
the day I die," he said in court.
Ferguson's mother said he told her and other
family members on Monday that he was sorry. "He wasn't going to say
he was sorry to the victims' family because he was afraid that it
would stop his death," Davis said.
He pleaded guilty to three counts of aggravated
murder in the Christmas Day killing of Thomas King, 61, in 2001 and
the deaths the next day of Arlie Fugate, 68, and his wife Mae, 69.
King, was disabled and used crutches, Arlie Fugate had cancer and
Mae Fugate took meals to wheelchair-bound neighbors. The victims let
Ferguson into their homes in Dayton because they knew him.
Ferguson's mother had been married to King's brother, and Ferguson's
family had once lived near the Fugates. Ferguson committed the
murders after getting a two-day pass Dec. 21, 2001, to leave a
Cincinnati drug treatment program he had been ordered to attend
following a burglary conviction.
Ferguson, who grew up in Dayton, frequently
wandered the streets and spent nights in warehouses and alleys. He
said at age 9 he began huffing - inhaling chemical vapors to achieve
a feeling of euphoria. He started drinking at 15 and using crack
cocaine at 18. Davis said her son was mentally ill. A defense
psychiatrist who reviewed Ferguson's medical history reported to the
trial court that he had been treated for several psychiatric
disorders, including bipolar disorder. "Gov. Bob Taft ... had a
mentally ill person put to death, murdered," Davis said.
Ferguson's trial attorney Victor Hodge said IQ
tests showed Ferguson was borderline mentally retarded. But he
refused to cooperate with further evaluations recommended by his
attorneys, Hodge said. Kim Norris, spokeswoman for Ohio Attorney
General Jim Petro, said Ferguson was found to be competent in
evaluations ordered by the court. Ferguson did not ask Taft for
clemency, which the governor said Monday he would not grant.
Ferguson, whose arms were tattooed, wore black-rimmed
glasses and looked to the ceiling when he told his mother and father
he loved them just before he was injected. He then turned toward the
glass separating him from witnesses. Davis, who sat between
Ferguson's father and a stepfather, held the men's hands. As he died,
all three cried and Davis leaned toward the glass and sobbed. "No
more chains, baby. No more handcuffs," she said. "It's done."
When the curtain covering the window to the death
chamber was pulled closed, Ferguson's mother said, "Satan, you
aren't as strong as you thought you were. All you did was make
people suffer as you like to do. But you didn't get him, you didn't
get him. He had the power to change." Six witnesses for the victims
- five relatives and a friend of the King family - held hands and
were quiet throughout the execution.
Ferguson was the fourth inmate executed in Ohio
this year, the 23rd since the state resumed executions in 1999.
Adremy Dennis, also 28, was about two months older than Ferguson
when he was executed in 2004.
Ohio executes man who said he enjoyed slayings
By Jim Provance - Toledo Blade.com
Tuesday, August 8, 2006
LUCASVILLE - "I refute you, Satan,'' declared the
mother of Darrell W. Ferguson as her 28-year-old son was put to
death this morning for the brutal stabbing and stomping of three
elderly Dayton residents five years ago. "Satan, you're not as
strong as you thought you were,'' sobbed Donna Davis. "All you did
was make people suffer like you like to do. But you didn't get him.''
Ferguson took advantage of a two-day pass from a
Cincinnati drug abuse treatment program in 2001 to launch a murder
and robbery spree to fuel his crack cocaine and chemical-huffing
habit, sometimes leaving his victims alive and sometimes dead.
He brutally stabbed 61-year-old Thomas King Sr.
in his Dayton home on Dec. 23, 2001, and stomped and kicked him with
his steel-toed boots. A day later, he did the same to Arlie and Mae
Fugate, aged 68 and 69. He left bloody impressions of his boot on
the cheek of Mr. Fugate and on Mr. King's pants. DNA testing of his
boots found probable blood matches for all three victims.
Ferguson confessed to the crimes with graphic
detail after his arrest and personally requested the death penalty
in letters to the judge and prosecutor. "(W)hat I done is done and
if I could bring them back I wouldn't,'' his letter to the judge
read. "I have no Remorse for what I did.''
Ferguson was Ohio's sixth volunteer, prematurely
ending what could have been years of additional appeals to hasten
his death. He refused to participate in his own clemency hearing,
but could have stopped his execution at any time right up to the
point that the execution drugs began to flow.
He taunted the families of his victims during his
sentencing hearing and posted poems and essays about his crimes and
his Satanic beliefs on his personal web site. He made no comment to
members of the victims' families, but to his parents, he said, "Mom
and Dad, I love you both. I love you a lot. I wish you all the
After the execution, his mother denied that her
son was a Satanist, saying he used that to accelerate his execution
and avoid life in prison.
Killer's final words will be directed to his
Prison officials don't expect repeat of vile outburst given
by Satanist during trial for killing three people
By Tom Beyerlein - Dayton Daily News
August 8, 2006
LUCASVILLE — Condemned triple murderer Darrell
Wayne "Gator" Ferguson of Dayton said if he gives a final statement
on the execution table this morning, it will be directed at his
family, a prison spokeswoman said Monday. That may mean Ferguson, a
Satanist, isn't planning a repeat of the hateful diatribe he issued
against his victims at his 2003 sentencing. Regardless of what he
says, prison policy doesn't allow the warden to pull the microphone
plug. "We can't restrict the content or duration of his statement,"
spokeswoman Andrea Dean said. "We can't interfere with his freedom
Eight people, including the sons of Ferguson's
disabled and elderly victims, are to watch him die by lethal
injection at the Southern Ohio Correctional Facility. Ferguson's
mother, Donna Davis; stepfather, Paul Yates; and natural father,
Clarence Vela Sr., also are scheduled to be witnesses.
Late Monday, Ferguson, 28, gobbled a "special
meal" of three T-bone steaks cooked medium rare, two breaded chicken
breasts with a side of ranch dressing, chocolate ice cream and
Mountain Dew. He enjoyed a contact visit with relatives, listened to
radio and chatted with his executioners about life in Dayton.
Ferguson's family will donate his body to Wright
State University for biological study, Dean said. Ohio Gov. Bob Taft
declined to grant clemency Monday. The only thing that could stop
the execution is if Ferguson changes his mind and decides to
exercise his appeals, Dean said.
Ferguson pleaded guilty and asked for the death
penalty in the Christmastime 2001 stabbings of Arlie and Mae Fugate
and Thomas King Sr. in East Dayton. A drug addict, Ferguson was on
Christmas leave from a halfway house and used robbery proceeds to
Execution set Tuesday for man who wants to die
By James Hannah - Cincinnati Post
Associated Press - Monday, August 7, 2006
DAYTON - Darrell Ferguson wants to die for his
deeds. And he's done just about everything he can to make it happen.
Ferguson stabbed to death and stomped with steel-toed boots on a man
using crutches. And he killed an elderly couple the same way,
snuffing out the life of a man weak with cancer and a woman who took
meals to her wheelchair-bound neighbors. The 28-year-old Ferguson, a
230-pound former high school wrestler who says he worships Satan,
admitted to the crimes time and time again, put up no defense and
asked for the death penalty.
At his sentencing, he taunted the families of the
victims, saying he enjoyed the killings, had no remorse, and, if
released from prison, would pick up where he left off.
Ferguson, whose nickname is "Gator," is on death
row and scheduled to be executed Tuesday. "If we are going to have
the death penalty in Ohio, there is no other case and no defendant
who deserves the ultimate penalty more," said Montgomery County
Prosecutor Mat Heck Jr.
Defense attorney Victor Hodge believes Ferguson's
behavior may be a ploy to avoid spending the rest of his life in
prison by committing suicide. "He just pulled the right strings to
make sure the government does it," Hodge said.
Ferguson was convicted of aggravated murder in
the Christmas Day, 2001, death of Thomas King and the deaths of
Arlie Fugate, 68, and his wife, Mae, 69, the next day. The victims,
all of Dayton, knew Ferguson and let him into their homes.
Ferguson grew up in Dayton. He frequently
wandered the streets and spent nights in warehouses and alleys.
Ferguson said at age 9 he began huffing - inhaling chemical vapors
to achieve a feeling of euphoria. He started drinking at 15 and
using crack cocaine at 18. Ferguson left school in the 10th grade,
did some street boxing to earn money, and, at one point, worked for
a vinyl-siding company.
On Dec. 21, 2001, Ferguson got a two-day pass
from the drug-treatment program in Cincinnati he had been ordered to
attend as a result of a burglary conviction. He took to the streets
of Dayton, smoking crack and huffing. On Dec. 25, King let Ferguson
into his home. King was later found stabbed eight times and had a
bootprint-shaped bruise on his chest. After the killing, Ferguson
went to a bridge by the river to think. "I tried to put a bread bag
over my head and just do myself in because I knew what I did was
wrong," he later told police.
That same day, the Fugates were picked up by
their son, James Cornett, and taken to his nearby home. He rented a
western movie for his father, who loved westerns, and the couple
enjoyed a Christmas dinner prepared by Cornett before returning home.
Cornett returned to his parents' home Dec. 27 and found their bodies
lying side-by-side on the living-room floor. They had both been
stabbed, and the rings were missing from their fingers. Arlie Fugate
had an impression of a boot on his cheek.
Prosecutors said robbery was the motive for the
three killings. Stolen were a couple of televisions, some jewelry, a
boom box and some change from a water jug. The items were sold to
buy crack cocaine and paint for huffing.
Ferguson admitted the killings to police
investigators, to prosecutors and in a letter to the trial judge. "I
planned on killing other people, but I got caught too soon,"
Ferguson wrote. During a psychological exam to determine whether
Ferguson was competent to take charge of his case, waive a jury
trial and plead guilty, he told the psychologist he had killed eight
Dayton police Detective Doyle Burke investigated
Ferguson's claims and found them without merit. He said there were
no unsolved homicides or missing persons that matched up with what
Ferguson described. "I think he wanted to boost his numbers in the
serial-killer ranks," Burke said.
On Sept. 9, 2003, Ferguson appeared before a
three-judge panel in Montgomery County Common Pleas Court and
pleaded guilty. After prosecutors presented evidence and Ferguson
presented no mitigating evidence, the panel found Ferguson guilty
and sentenced him to death. In April, the Ohio Supreme Court
unanimously upheld Ferguson's conviction and sentence, ruling that
evidence supported the conclusion he was competent. On July 20, the
Ohio Adult Parole Authority recommended that clemency be denied,
saying there didn't seem to be any justifiable basis for mercy.
Just prior to sentencing by the trial court in
2003, Ferguson hurled a verbal dagger into the hearts of the victims'
families, reading a statement against the wishes of his attorneys.
"I took the satisfaction ... of killing your loved ones with
pleasure. And I enjoyed it," Ferguson said. "I will never show any
remorse, even on the day I die."
On 12/26/01, Darrell Ferguson murdered 61-year-old
Thomas King at Mr. King's home on the east side of Dayton. Ferguson
broke into Thomas King's home, grabbed a knife from the kitchen, and
stabbed Thomas repeatedly in the chest. Ferguson then stole
televisions and stereos from the home and sold the items in order to
buy crack cocaine.
On 12/27/01, Ferguson murdered 68-year-old Arlie
Fugate and his wife, 69-year-old Mae Fugate. Ferguson broke into the
couple's home and stabbed them with a knife from their kitchen.
Ferguson then proceeded to stomp on their bodies with steel-toed
boots. Ferguson later wrote a handwritten letter in which he
admitted to intentionally and maliciously murdering the victims.
Darrell Ferguson - Ohio - August 8, 2006
Do Not Execute Darrell Ferguson
Darrell Ferguson, a white male, was sentenced to
death after being convicted of the aggravated murders of Thomas
King, Arlie Fugate and Mae Fugate. In December 2001, Ferguson was
granted a two-day pass from a halfway house to visit his mother but
failed to return when his pass expired. Instead, he fatally stabbed
and beat three elderly victims, who were acquaintances of his, and
stole household items including television sets and wedding rings.
Ferguson admitted the killings to friends and was therefore
identified as the primary suspect.
Prior to his trial, Ferguson waived his right to
a jury, pled guilty to all charges, and waived his right to
presentation of any mitigating evidence. A court-appointed clinical
psychologist then conducted an evaluation of the defendant and
deemed him competent of standing trial.
However, Ferguson’s mental health history may
suggest otherwise. Medical records show that he had been receiving
treatment over several years for ADHD and other psychiatric
disorders, including bipolar disorder. Ferguson engaged in
activities frequently associated with brain damage, including a long
history of substance abuse. His medical records provide reasons to
believe that he may have brain dysfunction, but results of any
neuropsychological testing were never presented to a jury.
Ferguson has an IQ of 77, was enrolled in special
education, and demonstrated “significant elevations on the Mania,
Antisocial Features, and Aggression scales” through personality
testing. He has also been hospitalized due to suicide attempts.
Ferguson had been prescribed a mood stabilizing drug, an
antidepressant drug, a drug used to decrease agitation, and a drug
used to control aggressive behavior. However, he had refused to take
them for the two and a half months leading up to the time of the
The Ohio Supreme Court referred to Ferguson as a
“remorseless, sadistic, and incorrigible killer.” Although it is
true that this man has committed a senseless and brutal act, it is
also senseless and brutal to allow the State of Ohio to kill this
deeply troubled, mentally ill man.
Please write to Gov. Bob Taft on behalf of
State v. Ferguson,
108 Ohio St.3d 451, 844 N.E.2d 806 (Ohio 2006). (Direct Appeal)
Background: After waiving jury trial and
mitigation, defendant was convicted on guilty pleas in the Court of
Common Pleas, Montgomery County, No. 02-CR-0353, of capital murder
and related crimes, and sentenced to death. Defendant appealed.
Holdings: The Supreme Court, Alice Robie Resnick,
J., held that:
(1) licensed clinical psychologist was qualified to determine
defendant's competency to waive jury trial and to waive mitigation;
(2) determination that defendant was competent to waive jury trial
and waive mitigation prior to obtaining results of
neuropsychological testing was not plain error;
(3) psychologist's determination that defendant was competent to
waive jury trial and waive mitigation was not subject to greater
scrutiny simply because defendant was actively seeking death penalty;
(4) defendant was not entitled to reversal of convictions based on
claims of ineffective assistance of counsel;
(5) defendant who was represented by counsel did not have
constitutional right to file pro se motion to waive oral argument;
(6) evidence supported findings of aggravating circumstances, for
sentencing purposes; and
(7) aggravating circumstances outweighed mitigating circumstances
beyond reasonable doubt. Affirmed.
ALICE ROBIE RESNICK, J.
Darrell W. Ferguson, defendant-appellant, was
convicted of, and sentenced to death for, the aggravated murders of
Thomas King, Arlie Fugate, and Mae Fugate. Ferguson raises 16
propositions of law. Finding none meritorious, we affirm his
convictions. We have also independently weighed the aggravating
circumstances against the mitigating factors and have compared
Ferguson's sentences of death to those imposed in similar cases, as
R.C. 2929.05(A) requires. As a result, we affirm Ferguson's death
In July 1999, Ferguson was convicted of burglary
and sentenced to two years in prison. On November 8, 2001, Ferguson,
while on postrelease control, was ordered to complete a substance-abuse
treatment program at Talbert House in Cincinnati.
On December 20, 2001, Ferguson was granted a two-day
pass to visit his mother at her Dayton home. The pass was effective
from 9:00 a.m. on December 21 until 12:00 p.m. on December 23, when
he was required to return to Talbert House. Ferguson went to his
mother's Dayton home, but he did not return to Talbert House when
his pass expired.
Around 4:00 a.m. on December 23, 2001, Ferguson
broke into the Dayton apartment of James Nicholson, a double amputee
in a wheelchair, and William Ferrell. Once inside the apartment,
Ferguson knocked Nicholson to the ground, removed Nicholson's wallet
from his pants pocket, and took cash from the wallet. As he left,
Ferguson warned Nicholson and Ferrell that if they called the police,
he would return and kill them.
At some time on December 25, 2001, Ferguson went
to Thomas King's home in east Dayton. Ferguson knew the 61-year-old
King because Ferguson's mother had been married to King's brother.
King was disabled and could walk only with crutches.
Ferguson knocked on the door, and King, who was
alone, let Ferguson into the house. After Ferguson and King talked
for a time, Ferguson attacked King, repeatedly stabbed him with a
kitchen knife, and kicked and stomped King with his steel-toed boots.
Following the attack, Ferguson took a 13-inch television, a 19-inch
television, and a stereo “boom box” and fled.
According to his later confession, Ferguson then
went to a Meijer's store and purchased some gold spray paint to
“huff,” i.e., to inhale the paint vapors for a quick high. Ferguson
then went to an area underneath a bridge and “tried to put a bread
bag over [his] face to go ahead and just do [himself] in because
[he] knew what [he] did was wrong.”
On the evening of December 26, Ferguson went to
the home of 68-year-old Arlie Fugate and 69-year-old Mae Fugate in
east Dayton. Ferguson knew them because Ferguson's family had once
lived near the Fugate home.
Ferguson knocked on the Fugates' door and asked
to use their bathroom. The Fugates let Ferguson inside their house.
After Ferguson came out of the bathroom, he took a knife from the
kitchen and attacked the Fugates. Ferguson repeatedly stabbed,
stomped, and kicked both of them with his boots. Following the
attack, Ferguson stole Mae's wedding ring and other jewelry, Arlie's
wedding band, and loose change that was kept in jars and jugs in the
house. Ferguson then left the house.
After leaving the Fugate home, Ferguson walked to
Sid's Towing Service. Around 1:00 a.m. or 1:30 a.m. on December 27,
Ferguson approached Jeffrey Fleming Jr., an acquaintance who worked
at Sid's Towing. Ferguson asked Fleming for a ride to another
location in Dayton, and Fleming drove him there. Fleming noticed
blood on Ferguson's jeans, but Ferguson told Fleming that the blood
was from a fight.
After the murders, Ferguson traded several of the
stolen items to Vicki Miller for crack cocaine. Miller identified
Ferguson from a photo array as the man who had made the trade.
Police recovered this property from Miller's residence in Dayton,
from Miller's father, and from a Dayton pawn shop. The 13-inch
television was never recovered.
Around noon on December 27, Ferguson went to the
Dayton home of Ricky Webb, an acquaintance. Webb, Dwayne Abney, and
Willie Townsend were at the house when Ferguson arrived. Ferguson
said that he wanted to watch the noon headlines on television. The
group then watched news coverage of the three murders. Ferguson said
that he had killed the victims at both locations. In describing what
happened, Ferguson said “that one guy went to pull a weapon on him.
* * * He said he let him have it. And * * * that's what they * * *
had coming to them for trying to pull a weapon on him.”
While watching the news, Ferguson asked how to
get blood out of clothes. Townsend told him to soak the clothes in
cold water. Abney noticed that there were darkish brown stains on
the bottom of Ferguson's jeans and that Ferguson was wearing black,
Later on December 27, Ferguson went to the Dayton
home of Irma Hess, where he washed his pants to get the blood out.
Ferguson remained at the Hess home until he was arrested the next
Around 8:00 p.m. on December 26, police were
dispatched to the King home after a friend found King's body. Police
noticed that the rear door to the house was ajar, but found no signs
of forced entry.
King's body, found on the dining room floor, had
sustained multiple knife wounds and a severe beating to his face.
Two kitchen knives were found near King's body. The wall near King's
body was heavily covered with blood spatter. Police also found a
distinctive bloody footprint on King's pants, and similar bloody
footprints were found on the carpet near his body.
The dining room area had been rifled, but the
rest of the house showed no signs of being ransacked. Police later
determined that a 19-inch television had been stolen from the dining
room, a stereo “boom box” from the kitchen, and a 13-inch television
from the bedroom.
Around 9:00 a.m. on December 27, James Cornett,
the Fugates' son, discovered Arlie's and Mae's bodies on their
living room floor. Police arriving at the Fugate home found the
front door ajar, but found no signs of forced entry.
The bodies of Arlie and Mae were found next to
each other in the living room. Arlie and Mae sustained multiple stab
wounds and had been badly beaten. It appeared that the bodies had
been arranged in the center of the room, and that **811 Arlie had
been dragged by his shoulders to that position, because his pants
and underwear were pulled down to his hips. A bloodstained kitchen
knife was found near the bodies. Police also found bloodstains near
the front door, on living room furniture and carpeting, and on a
dining room chair and carpeting. A bloody foot impression was also
left on Arlie's face.
The living room had been ransacked. Arlie's
wallet was next to his feet, and its contents were scattered on the
floor. A fanny pack and Mae's wallet were lying next to Arlie's head,
and her wallet had been rifled through. After talking to Cornett,
police learned that Mae's rings and Arlie's wedding band had been
taken from their hands. Jugs and jars filled with coins were also
missing from the home.
As the investigation progressed, Ferguson was
identified as the primary suspect. On December 28, the police
obtained an arrest warrant for Ferguson for the Nicholson robbery
and learned that Ferguson was staying at the Hess home.
At 3:00 p.m. on December 28, Detectives Gary
Dunsky, Doyle Burke, and another uniformed police officer went to
the Hess home. When the police came to the door, Irma Hess confirmed
that Ferguson was inside. The police then entered the house, placed
Ferguson under arrest, and took him to the police station.
At the station, Det. Burke advised Ferguson of
his Miranda rights, and he waived those rights. Subsequently,
Ferguson provided the police with a detailed account of the murders
reflecting facts already described. Ferguson also gave a videotaped
Denise K. Rankin, a forensic scientist, conducted
DNA testing of bloodstains on Ferguson's boots. DNA testing of one
bloodstain showed “a mixture where Arlie Fugate and Thomas King * *
* are possible contributors.” DNA testing of another bloodstain on
the boots showed “a mixture where Arlie Fugate is a possible
contributor.” According to Rankin, the probability of an individual
contributing to the mixed profile of this second stain is one in
62,770,000 Caucasians, one in 43,220,000 African Americans, one in
40,210,000 Southeastern Hispanics, and one in 21,120,000
Southwestern Hispanics. Ferguson is a Caucasian.
Daniel Lee Bibby, an expert in trace analysis,
compared sole prints from Ferguson's boots with bloody impressions
found on the victims' bodies and at the King and Fugate homes. Bibby
concluded that the imprint left on Arlie's face was consistent with
Ferguson's right boot heel. Bibby also found that shoe impressions
on two carpet samples from King's home were consistent with the
tread pattern from Ferguson's right boot. Finally, Bibby found that
impressions from “red-brown material” on King's pants were similar
to an element in the tread pattern of Ferguson's boots.
Dr. Russell Uptegrove, Deputy Coroner for
Montgomery County, performed or supervised autopsies of all three
victims. Mae suffered numerous stab wounds and blunt-force injuries
to the head and face. She died as the result of “multiple stab
wounds of the back.” Arlie suffered numerous blunt-force facial
injuries that were consistent with being kicked or stomped. Arlie
died from “[m]ultiple stab wounds of the chest.” King also suffered
numerous blunt-force injuries to the head consistent with being
kicked or stomped with steel-toed boots. He suffered six stab wounds
in the chest caused by a single-edge knife. King died as the result
of multiple sharp and blunt-force injuries.
Before trial, Ferguson wrote letters to the judge
and the prosecutor. In a January 3, 2003 letter, Ferguson informed
the prosecutor, “I committed all 3 murders[,] burglarys, [and]
robberys.” (Sic.) Ferguson also wrote, “I wish to get this over with
as soon as possible. * * * I Darrell Wayne Ferguson wishes to seek
the Death penalty.” (Sic.)
In a January 7, 2003 letter, Ferguson wrote the
trial judge that when he went to King's home, he “hit [King] and
beat hime to death and then stabbed hime. [He] took the t.v. and
sold them.” (Sic.) As to the Fugate murders, Ferguson stated, “[I]
club[b]ed [Mae] in the forehead with a metal and wooden candle stick
holder. I beat her down untill she could not move. I beat arlie to
death as well and then stabbed both of them.” (Sic.) Ferguson wrote,
“[W]hat is done is done and if i could bring them back i wouldn't. I
have no Remorse for what i did.” (Sic.) He also wrote, “[I] * * * is
asking you in my right state of mind would you please Find it in
good will to give me the Death penalty.” (Sic.)
A grand jury indicted Ferguson on six counts of
aggravated murder. Count 6 charged Ferguson with the aggravated
murder of King while committing aggravated burglary, and Count 7
charged him with the aggravated murder of King while committing
aggravated robbery. Count 11 charged Ferguson with the aggravated
murder of Mae while committing aggravated burglary, and Count 12
charged him with the aggravated murder of Mae while committing
aggravated robbery. Count 13 charged Ferguson with the aggravated
murder of Arlie while committing aggravated burglary, and Count 14
charged him with the aggravated murder of Arlie while committing
The six counts of aggravated murder each
contained five identical death-penalty specifications: murder to
escape detection or apprehension, R.C. 2929.04(A)(3); murder while
at large after breaking detention, R.C. 2929.04(A)(4); murder as a
“course of conduct” in killing two or more people, R.C.
2929.04(A)(5); murder while committing or attempting to commit
aggravated burglary, R.C. 2929.04(A)(7); and murder while committing
or attempting to commit aggravated robbery, R.C. 2929.04(A)(7).
Ferguson was also indicted for escape in Count 1,
aggravated burglary of Nicholson's residence in Count 2, robbery of
Nicholson in Count 3, aggravated burglary of the King home in Count
4, and aggravated robbery of King in Count 5. Additionally, Ferguson
was charged with aggravated burglary of the Fugate home in Count 8,
aggravated robbery of Mae in Count 9, aggravated robbery of Arlie in
Count 10, and evidence tampering in Count 15.
Ferguson waived a jury trial and pleaded guilty
to all counts and specifications. After reviewing a court-ordered
competency evaluation and questioning Ferguson about his decisions,
the trial court ruled that Ferguson was competent to stand trial and
that he had knowingly, intelligently, and voluntarily waived his
right to a jury trial.
The three-judge panel accepted Ferguson's guilty
plea and found Ferguson guilty on all the noncapital counts, and the
state presented evidence of Ferguson's guilt on the capital counts
pursuant to R.C. 2945.06 and Crim.R. 11(C)(3)(c). See State v. Green
(1998), 81 Ohio St.3d 100, 104, 689 N.E.2d 556 (holding that in a
capital case, a three-judge panel accepting a guilty plea must hear
evidence to determine whether the defendant is guilty of aggravated
murder beyond a reasonable doubt). Having found Ferguson to be
competent, the three-judge panel found Ferguson guilty of all counts
and specifications. Ferguson waived the presentation of mitigating
evidence. After finding that Ferguson was competent to waive
mitigation, the three-judge panel sentenced Ferguson to death for
the murders and to prison for the remaining offenses.
Ferguson now appeals to this court as a matter of
Competency evaluation . In his first, second,
third, and fourth propositions of law, Ferguson challenges the
sufficiency of his competency evaluation. In his first proposition
of law, Ferguson claims that the psychologist who examined him was
not qualified to evaluate his competency, because Ferguson had been
prescribed psychotropic medications. Ferguson argues that only a
psychiatrist licensed to prescribe medication would be qualified to
render an opinion on his competence.
Before trial, Ferguson informed the court that he
wished to waive a jury trial, plead guilty, and waive mitigation.
The trial court, sua sponte, ordered an evaluation of Ferguson to
determine his “general competency and competency to waive mitigation.”
The defense then requested that a psychiatrist be appointed as one
of the examiners. On March 31, 2003, the trial court appointed Dr.
Barbra A. Bergman, a clinical psychologist, to conduct a competency
During April and May 2003, Dr. Bergman conducted
her competency evaluation of Ferguson. On May 21, 2003, Dr. Bergman
completed a written report finding that Ferguson was competent to
stand trial and competent to waive mitigation. The defense then
requested that a psychiatrist be appointed to provide a second
opinion on Ferguson's competency. However, the trial court denied
this request and thereafter found that Ferguson was competent.
R.C. 2945.371(A) provides that a competency
examination shall be conducted by an “examiner,” defined by R.C.
2945.37(A)(2)(a) as either a “psychiatrist or a licensed clinical
psychologist.” The appointment of Dr. Bergman, a licensed clinical
psychologist, met that criterion.
Dr. Bergman was fully qualified to evaluate
whether Ferguson's prescription medications would have affected his
competency. In a very similar case, State v. Mink, 101 Ohio St.3d
350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 34-35, this court held that
clinical psychologists appointed to conduct separate competency
examinations were qualified to evaluate the effects of
antidepressant medication in evaluating the defendant's competency.
Moreover, Dr. Bergman's report shows that before
concluding that Ferguson was competent, she was aware that Ferguson
was taking or had taken various prescription medications. Dr.
Bergman learned from Ferguson that he had been “prescribed Depakote
(a mood stabilizer), Effexor (an antidepressant), Ativan (to
decrease agitation), and Risperdal (to control aggressive
behavior).” Ferguson told Dr. Bergman that he had taken those
medications for 14 months but had refused to take them for the two
and a half months that he had been in jail. Ferguson said that
taking the medication had resulted in “drooling, acid reflux, and
‘feeling bad.’ ” He also said that “the doctors did not care about
the side effects, because the medication kept him from ‘killing
someone and going into black rages.’ ” However, Ferguson reported
that since he stopped taking these medications, “he is better able
to focus, feels more motivated, and feels better about himself.”
Dr. Bergman also conducted a mental-status
examination and other psychological tests to evaluate Ferguson's
mental state. When Ferguson was not taking his medication in jail,
he displayed “no symptomatic behaviors” and “no active symptoms of a
major mental disorder.” Dr. Bergman then made her primary diagnosis
that Ferguson had an antisocial-personality disorder. Thus, Dr.
Bergman was aware that Ferguson had been prescribed various
medications and that he had ceased taking those medications, and she
considered those factors before concluding that Ferguson was
Further, the defense had an alternative means of
bringing the effect of prescription medications to the court's
attention. Before the competency evaluation, Dr. Douglas Mossman, a
psychiatrist and defense consultant, examined Ferguson. Dr. Mossman
reviewed Ferguson's medical records and was aware of prescription
medications that Ferguson was taking or had taken. Thus, Dr. Mossman
was available to alert the defense to any issues regarding the
effects of prescription medication on Ferguson's competency. However,
the defense never mentioned to the court whether Dr. Mossman had any
concerns on that score.
Moreover, the court received Ferguson's own
assurances that his ability to understand the proceedings was not
adversely affected by any prescription medication. See State v.
Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 37.
After receiving Dr. Bergman's competency evaluation, the trial court
questioned Ferguson about taking prescription medications before
accepting his request to waive a jury trial. The trial court asked
Ferguson whether he was “under the influence of any alcohol, drugs,
or medication that would impair-stand in the way of-[his] ability to
understand [the court] here today and to think logically.” Ferguson
answered, “No, sir.”
The three-judge panel also questioned Ferguson
about taking prescription medications before accepting his guilty
plea. The panel asked Ferguson, “[Are] you[ ] under the influence of
any alcohol, drug, or medication that would impair - meaning, stand
in the way of - your ability to understand me or to think clearly[?]
Any medication that you're on or is there anything that's blocking
your ability to comprehend and dialogue with me here today?”
Ferguson replied, “No, sir.”
Finally, even if Ferguson had been taking
psychotropic medication, this fact alone would not have affected the
court's findings on competency. R.C. 2945.37(F) provides that a
“court shall not find a defendant incompetent to stand trial solely
because the defendant is * * * receiving or has received
psychotropic drugs or other medication.” See State v. Mink, 101 Ohio
St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 38. Indeed, a
defendant may be emotionally disturbed or even mentally ill and yet
competent to stand trial. Id. at ¶ 38, citing State v. Bock (1986),
28 Ohio St.3d 108, 110, 28 OBR 207, 502 N.E.2d 1016.
Based on the foregoing, we overrule Ferguson's
first proposition. In his second proposition of law, Ferguson argues
that the court erred in finding that he was competent before
previously ordered neuropsychological testing of Ferguson had been
In a pretrial motion, the defense requested funds
to conduct a thorough neuropsychological test battery, a sleep-deprived
electroencephalogram (“EEG”), a lumbar puncture, and a positron
emission tomographic (“PET”) study of Ferguson's brain. Dr. Mossman,
the defense psychiatric expert, submitted an affidavit stating that
such testing would assist in evaluating Ferguson's mental status and
whether he suffered from brain damage or mental retardation. In an
order dated February 25, 2003, the trial court approved the defense
The record is unclear whether the additional
neuropsychological testing on Ferguson was ever conducted. In a
pretrial hearing on March 13, 2003, Ferguson informed the court that
he intended to plead guilty and waive mitigation. The focus of the
trial proceedings then shifted to whether Ferguson was competent to
waive a jury trial, plead guilty, and waive mitigation. During the
remainder of the trial, the defense neither mentioned whether
neuropsychological testing was conducted nor disclosed the test
results if such testing had been completed.
Moreover, Ferguson failed to object at trial to
the competency evaluation based on claims that neuropsychological
testing was not completed or that test results were not considered.
Thus, Ferguson has waived all but plain error. See State v. Childs
(1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph
three of the syllabus; State v. Underwood (1983), 3 Ohio St.3d 12,
13-14, 3 OBR 360, 444 N.E.2d 1332.
There was no plain error. R.C. 2945.371(G)
requires the examiner to file a written report with the court that
shall include (1) the examiner's findings, (2) the facts on which
the findings are based, in reasonable detail, and (3) the findings
or recommendations applicable to the issue of the defendant's
competency to stand trial, i.e., whether the defendant is capable of
understanding the nature of the proceedings and of assisting in his
or her defense. Dr. Bergman's competency evaluation met these
Dr. Bergman clinically interviewed Ferguson for
nine and one-half hours over five days. During these interviews,
Ferguson provided Dr. Bergman with a detailed history of his family
background, his history of substance abuse, and his mental problems.
Dr. Bergman also administered various psychological tests, including
the Wechsler Adult Intelligence Scale-III, the Minnesota Multiphasic
Personality Inventory-2, and the Personality Assessment Inventory.
Additionally, Dr. Bergman reviewed Ferguson's medical records from
Dr. Robert Hardman, a pediatric neurologist, the Miami Valley
Hospital, Greene Memorial Hospital, and Talbert House. She also
considered police reports and other court documents relating to the
charged offenses. Thus, Dr. Bergman considered an abundance of
information about Ferguson's medical and psychiatric history.
Moreover, the defense controlled whether
additional neurological testing of Ferguson was completed and
whether the test results were provided to Dr. Bergman and the court.
Thus, Dr. Bergman could consider evidence of neurological testing
only if the defense disclosed the results of such testing. However,
this was not done.
Finally, Ferguson does not reveal how additional
neurological testing would have changed the results of his
competency evaluation. It is purely speculative whether additional
testing would have made any difference in the outcome of his
competency evaluation. See State v. Mink, 101 Ohio St.3d 350,
2004-Ohio-1580, 805 N.E.2d 1064, ¶ 94.
Based on the foregoing, we overrule Ferguson's
second proposition. In his third proposition of law, Ferguson argues
that the trial court's findings of competency were flawed because
the evaluations did not adequately address medical diagnoses
requiring psychotropic medication, his suicide attempts, and his
hospitalizations. However, this claim also lacks merit.
In the competency evaluation, Dr. Bergman
discussed Ferguson's medical diagnoses. After reviewing Ferguson's
medical records, Dr. Bergman informed the court that Ferguson “has
been given a number of different diagnoses since childhood. Some of
the diagnoses were apparently supplied by Mr. Ferguson (i.e.
Multiple Personality Disorder and Schizophrenia) and have not been
given by qualified mental health professionals. Dr. Robert Hardman,
M.D., a pediatric neurologist, treated Ferguson with medication for
ADHD [Attention Deficit Hyperactivity Disorder] and Bipolar
Disorder. He also diagnosed [a] Conduct Disorder. On two occasions,
during contacts at Miami Valley Hospital, Mr. Ferguson was diagnosed
with drug-induced psychotic reactions.” Dr. Bergman also reported
that Ferguson had a long history of substance abuse and treatment in
various substance-abuse programs.
Dr. Bergman's evaluation discussed various
prescription medications that Ferguson had taken. These included
Ritalin and Wellbutrin (an antidepressant) that Ferguson had been
prescribed as a child. Additionally, Dr. Bergman noted that his
prescription for Effexor was refilled when he was sent to Talbert
Dr. Bergman also reported medications that
Ferguson said had been prescribed for him, including “Depakote (a
mood stabilizer), Effexor (an antidepressant), Ativan (to decrease
agitation) and Risperdal (to control aggressive behavior).” Ferguson
said that he had taken these medications for 14 months, but he has
refused to take them while in jail, with the result that he feels
better, more motivated, and more focused.
Dr. Bergman's report also addressed Ferguson's
suicide attempts. Dr. Bergman reported that “when he was 19 years of
age (1997), he made a suicide attempt by eating rat poison and was
hospitalized in the psychiatric unit at Miami Valley Hospital for
three weeks. He indicated that he was hospitalized at Miami Valley
Hospital because of suicidal feelings several times in 1997. Then,
according to [Ferguson], he began getting into a lot of legal
trouble, so he ‘stopped feeling suicidal.’ ” Dr. Bergman also
reported that Ferguson “denied any current thoughts or impulses for
Finally, Dr. Bergman's report discussed
Ferguson's hospitalizations. He was treated at Miami Valley Hospital
in 1997 for two drug-induced psychotic episodes, an emergency-room
contact after a suicide attempt, and an emergency-room contact with
referral for outpatient substance-abuse treatment. Ferguson was also
evaluated at Greene Memorial Hospital. Dr. Bergman reported that,
after an intake evaluation, Ferguson was referred to a substance-abuse
treatment program, but he did not follow up on the referral.
Additionally, Dr. Bergman reported that while Ferguson was on parole
during 2001, he admitted himself into a drug-detoxification program
at the Kettering Medical Center to “avoid ‘getting slammed’ by his
Probation Officer for having a dirty urine.”
Thus, Dr. Bergman's report informed the court of
Ferguson's various diagnoses and prescription medications, his
suicide attempts, and his hospitalizations. After carefully taking
all these factors into consideration, Dr. Bergman found that
Ferguson was competent.
Ferguson does not explain how his competency
evaluation suffered from any lack of information about his
diagnoses, psychotropic medication, suicide attempts, or
hospitalizations. Nor does he claim that his medical or
mental-health records included information that would have changed
his competency determination. Thus, we reject Ferguson's claim that
his competency evaluation was flawed. See State v. Mink, 101 Ohio
St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 55.
Moreover, as discussed regarding Ferguson's first
proposition of law, Dr. Mossman, the defense psychiatric consultant,
was available to challenge Dr. Bergman's competency evaluation.
However, the defense chose not to challenge Dr. Bergman's findings
by calling Dr. Mossman as a witness.
Finally, in addition to Dr. Bergman's report, the
trial court had the opportunity to observe Ferguson's demeanor and
behavior in court. Both the trial court and the three-judge panel
questioned Ferguson extensively before finding that he was
competent. See State v. Ashworth (1999), 85 Ohio St.3d 56, 63, 706
N.E.2d 1231. We find that neither the trial court nor the
three-judge panel abused its discretion in finding Ferguson
competent, because reliable and credible evidence supported these
findings. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193,
790 N.E.2d 303, ¶ 33.
Based on the foregoing, we reject Ferguson's
third proposition. In his fourth proposition of law, Ferguson argues
that because he actively sought the death penalty, greater scrutiny
was required in determining his competency.
We have previously held that greater scrutiny is
not required in conducting a competency evaluation merely because
the defendant seeks the death penalty. See State v. Mink, 101 Ohio
St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, at ¶ 56-61. We find no
basis for overturning that ruling.
Ferguson argues that Mink is distinguishable
because two psychologists conducted separate competency evaluations
in that case and only one psychologist evaluated Ferguson. However,
we reject this argument. First, the trial court was not required to
appoint more than one examiner to conduct the competency evaluation.
See R.C. 2945.371(A). Second, Ferguson fails to show how the
appointment of a second examiner would have changed the outcome of
his competency evaluation. Moreover, Dr. Mossman, the defense
psychiatric consultant, evaluated Ferguson and was available to
challenge the findings of Dr. Bergman, but never did so. Thus, it is
purely speculative whether a second examiner would have made a
difference in the outcome of Ferguson's competency evaluation.
Furthermore, the trial court went to great
lengths before finding that Ferguson was competent. On its own
motion, the trial court ordered that Ferguson undergo a competency
evaluation. Thereafter, Dr. Bergman evaluated Ferguson and found
that he was competent. The trial court then thoroughly questioned
Ferguson before finding that he was competent to stand trial and
competent to waive his right to a jury trial.
After the three-judge panel assembled, the court
questioned Ferguson at length before finding that he was competent
to stand trial, to waive his right to a jury trial, and to plead
guilty. Moreover, before the penalty phase, the three-judge panel
questioned Ferguson again before finding that he was competent to
Based on the foregoing, Ferguson's fourth
proposition is overruled.
Ineffective assistance of counsel . In his sixth
proposition of law, Ferguson raises several claims of ineffective
assistance of counsel. Reversal of convictions for ineffective
assistance of counsel requires that the defendant show, first, that
counsel's performance was deficient, and second, that the deficient
performance prejudiced the defense in such a way as to deprive the
defendant of a fair trial. Strickland v. Washington (1984), 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord State v. Bradley
(1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the
First, Ferguson claims that his counsel were deficient in
failing to request a psychiatrist to conduct the evaluation.
However, the record shows that trial counsel did request the
appointment of a psychiatrist. Following Dr. Bergman's evaluation,
trial counsel requested that Dr. Douglas Lehrer, a psychiatrist,
provide a second opinion on Ferguson's competency. Moreover, after
the three-judge panel was assembled, trial counsel renewed their
request that a psychiatrist provide a second opinion on Ferguson's
competency. Thus, we find that this claim of ineffectiveness lacks
Second, Ferguson argues that his counsel were deficient in
failing to object to the competency evaluation because the examiner
completed it without the benefit of Ferguson's psychiatric records.
Dr. Bergman stated that she reviewed Ferguson's medical records from
Dr. Hardman, the Miami Valley Hospital, Greene Memorial Hospital,
and Talbert House. However, Ferguson does not identify other medical
records that Dr. Bergman failed to consider, and this claim is
therefore speculative. Thus, we also reject this ineffectiveness
Third, Ferguson asserts that his counsel were
ineffective by not objecting to the competency evaluation because it
failed to discuss the possible impact of medication on Ferguson's
original decision to request the death penalty. Dr. Bergman reviewed
Ferguson's medical records and considered the medications that he
was prescribed but no longer taking. As discussed regarding his
first proposition of law, Ferguson told Dr. Bergman that he stopped
taking his prescription medications during the two and one-half
months that he was in pretrial confinement. Ferguson reported that
after he stopped taking these medications, “he is better able to
focus, feels more motivated, and feels better about himself.”
Defense counsel could reasonably presume that the effects of
Ferguson's medications on his decision to request the death penalty
were not a concern. See State v. Mink, 101 Ohio St.3d 350,
2004-Ohio-1580, 805 N.E.2d 1064, ¶ 92. Accordingly, we find that
counsel were not deficient for failing to raise this objection.
Fourth, Ferguson contends that his counsel were
ineffective in failing to object to the competency evaluation
because it did not address the medical diagnoses that caused a
physician to prescribe psychotropic medications. He also claims that
his counsel were deficient by stipulating to Dr. Bergman's testimony
and thus giving up the opportunity to cross-examine her.
Ferguson does not explain how his counsel's
failure to object to the failure to link his prescription
medications to a specific medical diagnosis would have made a
difference in the outcome of his competency evaluation. Dr. Mossman,
the defense psychiatric consultant, was aware of Ferguson's
medications, reviewed his medical records, and was aware of his
medical diagnoses. Thus, counsel may have decided to forgo an
objection based upon information obtained through their own expert.
Given the “strong presumption” that counsel's performance
constituted reasonable assistance, we reject this allegation. State
v. Bradley, 42 Ohio St.3d at 144, 538 N.E.2d 373.
Moreover, counsel were not ineffective in
stipulating that Dr. Bergman “would be qualified as an expert and
she would testify in accordance with her report.” The state would
have likely called Dr. Bergman as a witness if the defense had not
agreed to stipulate. By stipulating, the defense avoided the danger
of reiterating the state's evidence and eliciting further expert
testimony that might be damaging. Thus, counsel's action was a
“legitimate tactical decision” that does not constitute ineffective
assistance of counsel. See State v. Foust, 105 Ohio St.3d 137,
2004-Ohio-7006, 823 N.E.2d 836, ¶ 90; State v. Hanna, 95 Ohio St.3d
285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 121-123.
Finally, Ferguson claims that his counsel were
deficient in failing to assert his rights under international law.
As discussed regarding Ferguson's seventh proposition, his rights
under international law were not violated by imposition of the death
penalty. Thus, we find that counsel were not deficient by failing to
assert these rights at trial. See State v. Mink, 101 Ohio St.3d 350,
2004-Ohio-1580, 805 N.E.2d 1064, ¶ 95.
Weighing of aggravating circumstances and
mitigating factors . In his fifth proposition of law, Ferguson
argues that the death penalties must be vacated because the
aggravating circumstances do not outweigh the mitigating factors of
substance abuse and mental problems beyond a reasonable doubt. We
will consider this argument during our independent sentence
Constitutional and international law challenges .
In his seventh through 16th propositions of law, Ferguson raises
various constitutional and treaty-related challenges against Ohio's
death-penalty statutes. However, Ferguson failed to raise these
claims at trial and thereby waived them. See State v. Awan (1986),
22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus. Moreover,
these challenges lack merit.
In his seventh proposition of law, Ferguson
contends that his execution will violate international law and
treaties to which the United States is a party. However, we have
rejected similar arguments. See State v. Issa (2001), 93 Ohio St.3d
49, 69, 752 N.E.2d 904; State v. Bey (1999), 85 Ohio St.3d 487, 502,
709 N.E.2d 484; State v. Phillips (1995), 74 Ohio St.3d 72, 103-104,
656 N.E.2d 643.
In his eighth proposition of law, Ferguson argues
that Ohio's death-penalty statutory scheme violates the United
States and Ohio constitutional prohibitions against arbitrary and
unequal punishment. However, these claims are without merit. See
State v. Jenkins (1984), 15 Ohio St.3d 164, 169-170, 15 OBR 311, 473
N.E.2d 264; State v. Steffen (1987), 31 Ohio St.3d 111, 124-125, 31
OBR 273, 509 N.E.2d 383.
In his ninth proposition of law, Ferguson claims
that Ohio's death-penalty scheme is unconstitutional because of
unreliable sentencing procedures. However, we have rejected these
arguments on previous occasions. See State v. Esparza (1988), 39
Ohio St.3d 8, 12-13, 529 N.E.2d 192; State v. Stumpf (1987), 32 Ohio
St.3d 95, 104, 512 N.E.2d 598; State v. Jenkins, 15 Ohio St.3d at
172-173, 15 OBR 311, 473 N.E.2d 264.
In his tenth proposition of law, Ferguson asserts
that Ohio's death-penalty statutes unconstitutionally fail to
provide individualized sentencing because they require proof of
aggravating circumstances during the guilt phase. This argument also
has no merit. See Lowenfield v. Phelps (1988), 484 U.S. 231, 108
S.Ct. 546, 98 L.Ed.2d 568; State v. Henderson (1988), 39 Ohio St.3d
24, 28-29, 528 N.E.2d 1237; State v. Jenkins, 15 Ohio St.3d at 178,
15 OBR 311, 473 N.E.2d 264.
In his 11th proposition of law, Ferguson contends
that Ohio's death-penalty scheme is unconstitutional because it
imposes an impermissible risk of death on capital defendants who
choose to exercise their right to a jury trial. We also reject this
argument. See State v. Buell (1986), 22 Ohio St.3d 124, 138, 22 OBR
203, 489 N.E.2d 795, citing State v. Nabozny (1978), 54 Ohio St.2d
195, 8 O.O.3d 181, 375 N.E.2d 784, paragraph one of the syllabus.
In his 12th proposition of law, Ferguson
challenges Ohio's death-penalty statutes because R.C. 2929.03(D)(1)
requires submission of defense-requested presentence investigations
(“PSIs”) and mental-health evaluations to the judge or jury.
However, this argument is inapplicable to Ferguson's case because he
declined a PSI and mental-health evaluation prior to sentencing.
Moreover, we have previously rejected these arguments. See State v.
Buell, 22 Ohio St.3d at 138, 22 OBR 203, 489 N.E.2d 795.
In his 13th proposition of law, Ferguson disputes
the constitutionality of R.C. 2929.04(A)(7), the felony-murder
aggravating circumstance, because it repeats the definition of
felony murder set forth in R.C. 2903.01(B). However, we rejected
similar arguments in State v. Jenkins, 15 Ohio St.3d at 178, 15 OBR
311, 473 N.E.2d 264; see, also, State v. Henderson, 39 Ohio St.3d at
28-29, 528 N.E.2d 1237; Coe v. Bell (C.A.6, 1998), 161 F.3d 320,
In his 14th proposition of law, Ferguson asserts
that language in R.C. 2929.03(D)(1) is unconstitutionally vague
because it gives the sentencer unfettered discretion to weigh a
statutory mitigating factor (see R.C. 2929.04(B): “the nature and
circumstances of the offense”) as an aggravator. We have also
previously overruled this claim. See State v. McNeill (1998), 83
Ohio St.3d 438, 453, 700 N.E.2d 596, citing Tuilaepa v. California
(1994), 512 U.S. 967, 973-980, 114 S.Ct. 2630, 129 L.Ed.2d 750.
In his 15th proposition of law, Ferguson
challenges the constitutionality of Ohio's death-penalty
proportionality review. We summarily reject this claim. See State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23;
State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383,
paragraph one of the syllabus.
Finally, in his 16th proposition of law, Ferguson
argues that his death sentences violate the Eighth Amendment of the
United States Constitution because the trial court did not consider
all of the evidence of mitigation in his case. However, Ferguson was
found competent to waive mitigation, and thus Ashworth, 85 Ohio St.3d
at 63, 706 N.E.2d 1231, applies. The court was not obliged to build
a mitigation case for him. Nevertheless, the three-judge panel
searched the record for mitigating evidence and considered such
mitigation before sentencing Ferguson to death. Thus, we reject this
claim. Ferguson is represented by counsel and has not requested to
relinquish counsel and represent himself. He filed this motion after
the case had already been briefed by his counsel and the state had
filed an answer brief. Moreover, Ferguson's counsel filed no motions
to waive oral argument.
Ferguson has no constitutional right to self-representation
in the appellate process on direct appeal. Martinez v. California
Court of Appeal, Fourth Appellate Dist. (2000), 528 U.S. 152, 163,
120 S.Ct. 684, 145 L.Ed.2d 597. Furthermore, “[a] defendant has no
right to a ‘hybrid’ form of representation wherein he is represented
by counsel, but also acts simultaneously as his own counsel.” State
v. Keenan (1998), 81 Ohio St.3d 133, 138, 689 N.E.2d 929, citing
McKaskle v. Wiggins (1984), 465 U.S. 168, 183, 104 S.Ct. 944, 79
We find that Ferguson's pro se motion lacks merit.
Moreover, we determined that oral argument would be helpful in
resolving the issues in this case and heard oral argument. Thus,
Ferguson's pro se request was denied.
Independent sentence evaluation
Having considered Ferguson's propositions of law
as required by R.C. 2929.05(A), we now independently review
Ferguson's death sentences for appropriateness and proportionality.
The evidence established beyond a reasonable doubt that Ferguson was
properly convicted of the aggravating circumstances, namely, murder
while under detention or while at large after having broken
detention, R.C. 2929.04(A)(4), a “course of conduct” in killing two
or more people, R.C. 2929.04(A)(5), and murder while committing or
attempting to commit aggravated burglary, R.C. 2929.04(A)(7). Before
the penalty phase, the three-judge panel merged the two (A)(7)
specifications and merged the (A)(3) (escaping detection)
specification with the (A)(5) and (A)(7) specifications.
We now weigh the aggravating circumstances
against the mitigating factors contained in R.C. 2929.04(B).
Ferguson presented no mitigating evidence during the penalty phase.
However, he elected to make a statement in allocution prior to being
sentenced. The three-judge panel also reviewed Dr. Bergman's
competency evaluation and scoured the record for mitigating evidence
before sentencing Ferguson to death.
The record reveals that Ferguson was born in
Phoenix, Arizona and moved with his family to Dayton when he was
three or four years old. His parents never married, and his father
never lived with the family. Ferguson reported that his father
visited him a few times during his childhood years, but he did not
see very much of him.
Ferguson's mother had a number of boyfriends and
married his stepfather when Ferguson was 17 or 18 years old.
Ferguson said that his mother and most of her boyfriends used
marijuana and alcohol. Ferguson's mother runs a business cleaning
houses, and his stepfather works for the city of Dayton. Ferguson
has a very close relationship with his mother, but does not get
along with his stepfather. Ferguson also has an older sister and an
older brother. He had another brother who committed suicide when
Ferguson was 20 years old.
Ferguson attended Dayton area schools. Ferguson
said that he was receiving As and Bs, but was in the
“developmentally handicapped (DH) class and was slow to learn.”
During the tenth grade, Ferguson was expelled from Dunbar High
School. Ferguson said that his expulsion was related to “positive
results on a drug test.”
Ferguson has been involved in two serious
relationships with women. His first relationship started when he was
15 years old and lasted four years. Ferguson physically abused her,
and the relationship ended when he “just left” because he could not
stand to be around her any longer. Ferguson had a daughter during
this relationship, but he has never had any contact with her.
Ferguson's second relationship began when he was
19 years old and lasted for two years. Ferguson said that his
girlfriend left the relationship because she was afraid of him.
According to Ferguson, “[s]he saw the type of rage that I am capable
of.” On one occasion, Ferguson admitted that he “threw his
girlfriend's ex-boyfriend through the window of a bus and then left
Ferguson had a son during this relationship but
has had no contact with the child since he was a baby. Ferguson
“believes that his son would benefit from a relationship with him
and also believes that if his son was with him, he would not have
committed the instant offenses, because he would have been doing
things for his son.”
Ferguson reported that after he left school, he
worked as a stripper and was a street fighter. Ferguson described
street fighting as an illegal, “underground” enterprise. According
to him, he had “a trainer and a promoter and was paid between eighty
and one hundred thousand dollars per fight, of which he actually
pocketed forty thousand dollars.” Ferguson said that he “engaged in
ten to fifteen fights per year and was never seriously hurt.”
Ferguson also said that he “enjoyed jumping a freight train and
riding somewhere.”He would sometimes be gone from four to six months
at a time and always had money in his pocket as a result of his
Ferguson said that he began using Toluene at the
age of 16, steroids at the age of 17, and crack cocaine at the age
of 20. Ferguson stated that he got addicted to crack and was using
one to three ounces every three to four days. He also sold crack
cocaine to cover his expenses and stated that he was “robbing the
‘dope boys'-beat them up and take it.”
Ferguson reported that he had no juvenile
criminal history. However, Ferguson said that when he was 19, he was
charged with numerous offenses, including several assaults, carrying
a concealed weapon, several thefts, grand theft, and child
endangering. He stated that he was placed on probation for these
offenses. In 1999, Ferguson was convicted of burglary and sentenced
to two years in prison.
Testing showed that Ferguson has below-average
intelligence. Ferguson's full-scale IQ was 77 on the Wechsler Adult
Intelligence Scale-III. Personality testing “showed significant
elevations on the Mania, Antisocial Features, and Aggression
scales.” According to Dr. Bergman, “[t]he antisocial features of the
profile appear to be most prominent and markedly elevated. An
individual with such personality characteristics is typically
unreliable and irresponsible, with little sustained success in
social or occupational realms.” Dr. Bergman also found that “the
aggression scale was also markedly elevated, indicative of an
individual who is easily provoked and who shows explosive anger when
frustrated.” However, Dr. Bergman found “no active symptoms of a
major mental disorder,” and her primary diagnosis was that Ferguson
had an antisocial personality disorder.
Ferguson's medical records show that he received
treatment over several years for ADHD. He has also received
treatment for “several psychiatric disorders, including bipolar
disorder.” Dr. Mossman reported that Ferguson “has engaged in
activities frequently associated with brain damage, and that past
medical records suggest the possibility of neurological
abnormalities.” Moreover, Dr. Mossman states that “a clinical
psychiatric examination and evaluation of Mr. Ferguson's medical
records provide strong reasons to believe that he has high
impulsivity and that he may have brain dysfunction.”
1 Before sentencing, counsel stated that Ferguson
wanted to read a letter to the court even though his lawyers advised
him not to do so. Ferguson made the following statement to the
“Today I stand before the Court to be judged and
sentenced for the crimes of murders of Thomas S. King, Sr., Arlie
Fugate, and Mae Fugate. I do understand that the victim's family and
the friends of the victim's family as well as others wants justice
served * * * on a platter to them for what I did * * * in December
* * *
“I, Darrell W. AKA Gator Ferguson, does not care
if you're here to get justice served to you or not. I, Darrell W.
AKA Gator Ferguson, does not care what you don't like about what I
did to your loved ones. And I, Darrell W. AKA Gator Ferguson, does
not care what you think about me, because who I am and what I am and
* * * [I] will always remain that way.
“When I killed Thomas S. King, Sr., and Arlie
Fugate and Mae Fugate, I did it intentionally, and the killings * *
* were malicious and hideous acts just as I intended them to be. I
took the satisfaction, Brenda King and James Cornett, of killing
your loved ones with pleasure. And I enjoyed it.
* * *
“I, Darrell W. Gator Ferguson, does not have no
remorse for either side of the victim's family nor do I have no
remorse for their slaughtered loved ones. I hate you and I hate you
and I hate you.
“I pray that Thomas S. King, Sr., Arlie Fugate,
and Mae Fugate are in hell right now in agonizing pain and torment.
They shall never rest, only burn for eternity.
“Brenda King and James Cornett, if I had the
power to bring your loved ones back, I, Darrell W. Gator Ferguson,
would not bring them back. I will never show any remorse even on
that day that I die.
“The only thing I want for Thomas S. King, Sr.,
Arlie Fugate, Mae Fugate, is to suffer, burn, and have agonizing
pain in hell.
“I sit in my cell every day for the past 21
months and * * * asked myself over and over where was your Jesus * *
* to save his poor, innocent lambs. Your God of false hope has
vanished into nothingness. * * * And if you consider my god, lord
Satan, a killer, then it is his blood that runs through my veins and
fills my heart full of hideous acts and hatred.
“ * * * Let's just say that if I was to be freed
to go back out in society, I'd pick up where I left off from and
take the pleasure of causing destruction. I'm not afraid of death
like some of you are. * * *
“ * * * I will pray night and day as I sit in
prison in my own darkness that for every one of you who are here to
see justice served that you and your precious loved ones are driving
down the road and the * * * car blows up and kills every one of you.
May death come over all of you.
“To my God, and to my family and friends, love.
And to my enemies, death. Hail, lord Satan. Done.”
Nothing in the nature and circumstances of the
offenses appears mitigating. On December 25, 2001, Ferguson murdered
King, an elderly and disabled man, and burglarized his home. On
December 26, 2001, Ferguson murdered Arlie and Mae Fugate, an
elderly couple, and burglarized their home. Ferguson committed all
three murders as part of a course of conduct while he was at large
after not returning to Talbert House.
We find that the statutory mitigating factors are
generally inapplicable, including R.C. 2929.04(B)(1) (victim
inducement), (B)(2) (duress, coercion, or strong provocation), and
(B)(6) (accomplice only).
We give little weight to the R.C. 2929.04(B)(4)
mitigating factor (youth of the offender) because Ferguson was 23
years old at the time of the offenses. See State v. Foust, 105 Ohio
St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 197; State v. Hartman
(2001), 93 Ohio St.3d 274, 306, 754 N.E.2d 1150; State v. Dunlap
(1995), 73 Ohio St.3d 308, 319, 652 N.E.2d 988.
We find the R.C. 2929.04(B)(5) mitigating factor
(lack of a significant history of prior criminal convictions) to be
inapplicable because of Ferguson's prior conviction for burglary.
The R.C. 2929.04(B)(3) mitigating factor is not
applicable, because there was no evidence that Ferguson, by reason
of a mental disease or defect, lacked substantial capacity to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law. However, under the catchall
provision, R.C. 2929.04(B)(7), we give weight to Ferguson's history
of mental health problems.
Ferguson suffers from ADHD and has received
treatment for a bipolar disorder. He also has a long history of drug
and alcohol abuse. Moreover, Dr. Mossman's evaluation suggests the
possibility that Ferguson may have a neurological abnormality. On
the other hand, Dr. Bergman's comprehensive evaluation of Ferguson
found “no active symptoms of a major mental disorder,” and she
diagnosed him with an antisocial-personality disorder.
We also give some weight under R.C. 2929.04(B)(7)
to Ferguson's cooperation with the police and his guilty pleas. See
State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064,
at ¶ 125; State v. Rojas (1992), 64 Ohio St.3d 131, 143, 592 N.E.2d
However, Ferguson expressed no remorse for his
crimes. Indeed, in his allocution statement, Ferguson stated in
graphic terms that he took great satisfaction in killing his victims,
felt no sorrow for his victims or their surviving family members,
and if he was ever free, he would “pick up where [he] left off * * *
and take the pleasure of causing destruction.” Thus, by his own
words, Ferguson is a remorseless, sadistic, and incorrigible killer.
We find that Ferguson's history and background
provide some mitigating value. Ferguson had a disruptive childhood
and was raised in a dysfunctional family. Otherwise, his character
offers no redeeming features.
After weighing the aggravating circumstances
against the mitigating factors, we find that the aggravating
circumstances as to each aggravated murder outweigh the mitigating
factors beyond a reasonable doubt. Ferguson's course of conduct in
murdering Thomas King and Arlie and Mae Fugate during the course of
an aggravated burglary and while he was at large after breaking
detention constitute grave aggravating circumstances. Ferguson's
mitigating evidence pales in comparison.
We reject Ferguson's argument, in his fifth
proposition of law, that the aggravating circumstances do not
outweigh the mitigating factors because of the severity of his
mental problems. Ferguson's primary diagnosis was an antisocial
personality, and he displayed no active symptoms of a major mental
We find that the death penalties imposed in this
case are both appropriate and proportionate when compared with other
“course of conduct” murders. See State v. Foust, 105 Ohio St.3d 137,
2004-Ohio-7006, 823 N.E.2d 836, at ¶ 203; State v. Gapen, 104 Ohio
St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 182; State v. Mink,
101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 130.
They are also appropriate and proportionate when
compared to sentences in other burglary-murder cases. State v.
Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, ¶
145; State v. Jones (2000), 90 Ohio St.3d 403, 423, 739 N.E.2d 300;
State v. Campbell (1994), 69 Ohio St.3d 38, 56, 630 N.E.2d 339.
Finally, the death sentences are appropriate and
proportionate to sentences in other murders committed while the
defendant was under detention or at large after breaking detention.
State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶
130; State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d
678, ¶ 172.
Accordingly, we affirm Ferguson's convictions and
sentences of death. We also dismiss Ferguson's pro se motion to
waive oral argument. Judgment affirmed.
MOYER, C.J., PFEIFER, LUNDBERG STRATTON, O'CONNOR,
O'DONNELL and LANZINGER, JJ., concur