Keene was the head of a self-proclaimed Downtown Posse of juveniles
and young adults in Dayton. Working with three young co-conspirators,
Keene murdered Joseph Wilkerson, 34, an acquaintance; Danita Gullette,
18, a stranger using a public telephone on the street; and Sarah
Abraham, 38, a clerk at a convenience store.
When he feared they would snitch on
him, Keene was involved in the silencing of two acquaintances who knew
too much: Wendy Cottrill, 16, and Marvin Washington, 18. Washington
was shot by co-conspirator DeMarcus Smith. Keene’s girlfriend, Laura
Taylor, killed a sixth victim, Richmond Maddox, 19.
The crimes spanned Dec. 24-26, 1992
and were known as the "Christmas Killings." Taylor and Smith were
juveniles at the time of the killings and thus ineligible for the
death penalty. Another defendant, Heather Matthews, was indicted on
two capital murder charges, but was granted a plea agreement in
exchange for her testimony against Keene and Taylor. Smith, Taylor and
Matthews all are serving prison sentences in excess of 100 years.
State v. Keene, 81 Ohio St.3d 646, 693 N.E.2d 246 (Ohio 1998).
Keene v. Mitchell, 525 F.3d 461 (6th Cir. 2008). (Habeas)
A Porterhouse steak with A-1 sauce, a pound of jumbo fried shrimp with
cocktail sauce, french fries and onion rings with ketchup, dinner
rolls and butter, two plums, a mango, a pound of seedless white
grapes, German chocolate cake, two bottles of Pepsi and two bottles of
A&W cream soda.
"I have no words."
Ohio Department of Rehabilitation
Inmate#: OSP #A286-363
Inmate: MARVALLOUS KEENE
DOB: July 5, 1973
County of Conviction: Montgomery County
Date of Offense: December 24-26, 1992
Date of Sentencing: December 10, 1993
Presiding Judge: Robert M. Brown, Lee A. Bixler, Robert D. Nichols
Prosecuting Attorney: Mathias H. Heck Jr.
Institution: Southern Ohio Correctional Facility
Convictions: Count 1: Aggravated Burglary (10-25 yrs), Counts 2, 5, 8,
9, 11, 13: Aggravated Murder (Death).
Ohio executes man for 1992
Christmas killing spree
By Matt Leingang - Associated Press
Jul 21, 2009
LUCASVILLE, Ohio — Ohio has executed a man
convicted in a 1992 Christmas holiday killing spree that left six
people dead and two wounded. Marvallous Keene died by lethal injection
at 10:36 a.m. Tuesday at the Southern Ohio Correctional Facility in
Lucasville, one week after the state's last execution.
The 36-year-old Keene and three accomplices went on
a three-day murder and robbery rampage in Dayton that began on
Christmas Eve 1992. The victims included an 18-year-old mother gunned
down at a pay phone, a convenience store clerk and two teenage
acquaintances whom Keene feared would tell police about his crimes.
Prosecutors say Keene was the triggerman in four of
the five deaths for which he was convicted. His three accomplices are
serving life sentences.
Dayton's Christmas killer set to
By Tom Beyerlein - Dayton Daily News
Tuesday, July 21, 2009
LUCASVILLE — Marvallous Keene’s last meal request
was almost as long as his list of victims. Keene, ringleader of
Dayton’s worst murder spree known as the 1992 “Christmas killings,”
was transferred to the death house at the state prison here Monday,
July 20. He is to die by lethal injection at 10 a.m. today at the
maximum-security Southern Ohio Correctional Facility.
Keene, 36, arrived at Lucasville at 9:43 a.m.
Monday from death row at the Ohio State Penitentiary in Youngstown.
Staff members gave him a medical evaluation and checked his veins to
be sure they could accept the intravenous lines containing a lethal
cocktail of three drugs. “He’s generally been calm,” said Julie
Walburn, spokeswoman for the Ohio Department of Rehabilitation and
Correction. “He’s pretty quiet right now.”
He received a “special meal” of his choice about 4
p.m. consisting of a porterhouse steak cooked medium with A-1 steak
sauce, a pound of deep-fried jumbo shrimp, fries, onion rings, dinner
rolls with strawberry preserves, two plums, a mango, a pound of white
seedless grapes, two bottles of Pepsi, two bottles of A&W cream soda
and German chocolate cake.
Keene, head of a self-proclaimed Downtown Posse of
juveniles and young adults, was convicted of aggravated murder in five
of the gang’s six killings. He did not fight efforts to execute him.
Keene did not request to meet with family members,
and no relatives are known to be attending the execution. Two
attorneys from the Ohio Public Defender’s Office are his chosen
Walburn said officials expect nine people from the
victims’ families to witness, as well. By Monday afternoon, Keene had
not decided whether he would make a final statement, Walburn said. He
spent most of the day watching television and writing what appeared to
be letters, she said.
The Christmas killings
Facts: Working with three young co-conspirators,
Keene murdered Joseph Wilkerson, 34; Danita Gullette, 18; and Sarah
Abraham, 38. When he feared they would snitch on him, Keene was
involved in the silencing of two acquaintances who knew too much:
Wendy Cottrill, 16, and Marvin Washington, 18. Washington was shot by
co-conspirator DeMarcus Smith. Keene’s girlfriend, Laura Taylor,
killed a sixth victim, Richmond Maddox, 19. The crimes spanned Dec.
Aftermath: Taylor and Smith were juveniles at the
time of the killings and thus ineligible for the death penalty.
Another defendant, Heather Matthews, was indicted on two capital
murder charges, but was granted a plea agreement in exchange for her
testimony against Keene and Taylor. Smith, Taylor and Matthews all are
serving prison sentences in excess of 100 years.
Killer of 5 leaves no words of
By Alan Johnson - Dispatch.com
Wednesday, July 22, 2009
LUCASVILLE, Ohio -- Marvallous Keene's death was
swift, silent, subdued. Just four minutes after being strapped down to
the lethal-injection table -- and two minutes after the chemicals
began flowing into his veins -- the Dayton "Christmas Killer" turned
his head slightly to the left, then closed his eyes for the last time.
The official time of Keene's death at the Southern Ohio Correctional
Facility near Lucasville was 10:36 a.m. But he seemed gone much
earlier: He didn't move, and his chest showed no sign that he was
Seven witnesses representing some of Keene's
victims were wrapped in their own silent thoughts as the man who had
taken away their loved ones slipped calmly into death, without saying
he was sorry or explaining what motivated him to kill. "I have no
words," Keene said when Warden Phillip E. Kerns put a microphone to
his mouth so he could make a final statement.
Keene, 36, became the second Ohioan to be executed
in a week. The Ohio Supreme Court subsequently changed its procedures
so that executions occur no closer than three weeks apart.
Keene ordered a large last meal of a Porterhouse
steak with A-1 sauce, a pound of jumbo fried shrimp with cocktail
sauce, french fries and onion rings with ketchup, dinner rolls and
butter, two plums, a mango, a pound of seedless white grapes, German
chocolate cake, two bottles of Pepsi and two bottles of A&W cream
He paid the ultimate price for a 1992 Christmastime
killing rampage in Dayton that left five people dead and a string of
broken lives and dreams. Keene took the lives of Joseph Wilkerson, 34;
Danita Gullette, 18; Sarah Abraham, 38; Wendy Cottrill, 16; and Marvin
Washington, 18. Several of Gullette's relatives witnessed the
execution. When it was over, Gary Gullette, the slain woman's uncle,
put his arm around Connie Gullette, her stepmother, and gently rubbed
her shoulders. None of the victims' family members spoke to the media
after the execution. Keene's public-defender attorneys, Kelly
Schneider and Rachel Troutman, likewise chose not to comment. Outside
the prison, 25 protesters sang Amazing Grace as a battered black
hearse carried Keene's body away.
Ohio puts to death second man in
7 days; Prisoner rejected appeal of sentence
July 22, 2009
LUCASVILLE, Ohio - A man whose 1992 Christmas
holiday killing spree left six people dead was executed yesterday. The
execution was Ohio's second in two weeks and the 1,000th lethal
injection in the United States since the death penalty was reinstated
in 1976. Marvallous Keene, 36, who was convicted in five of the
murders, chose not to file a late appeal of his death sentence.
He died at the Southern Ohio Correctional Facility
in Lucasville seven days after Ohio's last execution. The time lapse
was the shortest since the state executed two inmates in six days in
The Ohio Supreme Court, in denying a request last
month to delay Keene's ex- ecution, said that it would schedule
executions at least three weeks apart so public de- fenders will have
more time to prepare clemency cases for inmates who wish to pursue
them. Ohio has one execution a month scheduled through February.
Keene, 36, died at 10:36 a.m. "No, I have no words,"
he said when asked whether he had anything to say before the lethal
chemicals were administered. Within a couple of minutes, he appeared
to be unconscious. Seven witnesses for the victims silently watched
the execution from a room near the death chamber. None spoke afterward.
Outside, about 25 protestors sang "Amazing Grace" as the hearse
carrying Keene's body drove away.
Keene and three accomplices went on a three-day
murder and robbery rampage in Dayton that began on Christmas Eve,
1992. Victims included Sarah Abraham, 38, a convenience store clerk
shot in the head after handing over $30 from a cash register, and
Marvin Washington and Wendy Cottrill, two teenage acquaintances whom
Keene feared would tell police about his crimes.
According to the nonprofit Death Penalty
Information Center in Washington, Keene's was the 1,171st execution -
and the 1,000th by injection - since the United States reinstated the
death penalty. Ohio has executed 31 men since it reinstated the death
penalty in 1999.
Defense attorneys have said Keene, who was 19 at
the time of the slayings, was despondent over the shooting death of
his brother a year earlier. At his trial, Keene also told a three-judge
panel that a falling out with his father contributed to his troubled
Keene's accomplices are serving life sentences.
Marvallous Keene, was sentenced to death for the
aggravated murders of five victims. The offenses occurred on December
24 and 26, 1992.
In December 1992, Keene was consorting with a group
of people, including several juveniles, who at various times stayed at
Bill McIntire’s apartment at 159 Yuma Avenue, Dayton. This group
included Laura Taylor, DeMarcus Smith, Nicholas Woodson, Heather N.
Mathews, Wendy Cottrill, Marvin Washington, and Jeffrey Wright.
On December 24, 1992, Keene and Taylor enlisted
Mathews to help them rob Joseph Wilkerson, an acquaintance of Taylor’s.
Taylor told Mathews that she had arranged for the three of them to go
to Wilkerson’s house on the pretext of having an orgy with Wilkerson.
Mathews agreed to take part in the robbery. Keene, Taylor, and Mathews
walked to Wilkerson’s house. After a drink, Wilkerson and Taylor went
to the bedroom. After waiting briefly, Keene and Mathews followed them.
Wilkerson began to take his clothes off. Taylor and Mathews pretended
to do the same. Keene began to remove his own pants, then pulled them
back up and drew a gun. He ordered Wilkerson onto the bed, then
commanded Taylor and Mathews to tie Wilkerson’s hands to the bed.
While Keene watched Wilkerson, Taylor and Mathews went through the
house, looking for things to steal. They took a microwave oven, a TV,
a cordless phone, a curling iron, and a blow dryer, which they loaded
into Wilkerson’s Buick. Wilkerson told Keene that he kept a .32-caliber
derringer in the garage. Keene found it and brought it back to the
bedroom. Keene subsequently confessed that he shot Wilkerson in the
chest with the derringer, after covering him with blankets to muffle
the noise. Taylor and Mathews, hearing the shot, returned to the
bedroom and saw Keene holding the derringer. Wilkerson’s feet were
shaking. Keene handed the derringer to Taylor, but it would not fire
again. So Keene gave Taylor his own gun, and Taylor shot Wilkerson in
the head. Wilkerson stopped shaking. Keene and his accomplices then
left in the Buick. Keene warned his accomplices not to tell Cottrill
Later that evening, Keene, Taylor, and Smith went
walking. Keene and Smith were carrying guns. Keene later confessed to
police that, as they were walking, they saw Danita Gullette at a
public telephone. Smith and Keene drew their guns, and Smith forced
Gullette at gunpoint to take her shoes off. Smith and Keene then shot
Gullette. Smith took her shoes and jacket. When they returned to the
apartment, Taylor was wearing Gullette’s jacket and Smith was carrying
Gullette’s shoes. Later that night, Smith shot Mathews’s boyfriend,
Jeffrey Wright, outside 159 Yuma. Keene, Mathews, Taylor, and Smith
then left in Wilkerson’s Buick. On December 25, Keene returned to
Wilkerson’s house and stole more items, including Wilkerson’s other
car, a Pontiac.
Also on December 25, Taylor robbed and murdered her
former boyfriend, Richmond Maddox. Early in the morning of December
26, Mathews drove the Pontiac to a BP service station, where Keene and
Smith stole Kathie Henderson’s car at gunpoint. Keene and Smith drove
off in Henderson’s car; Mathews followed in the Pontiac. Later that
morning, Mathews drove the Pontiac to the Short Stop Mini-Mart, with
Keene, Smith, and Taylor in the car. Taylor went into the store, then
came back to report that there were only two people inside. Mathews
handed a .32-caliber revolver to Smith; Smith and Keene were also
carrying .25-caliber automatic pistols. Keene and Smith went into the
store. Sarah Abraham, whose family owned the store, was working behind
the cash register. Keene ordered her at gunpoint to open it. Abraham
did so and removed $40, which she handed to Keene. Keene shot Abraham
in the head. Several days later, Abraham died of her wound. Smith also
shot at two other people, Jones Pettus, a customer, wounding him, and
Edward Thompson, a helper, both of whom survived and testified against
Later that day, Taylor and Mathews discussed "jumping"
Cottrill because they "thought she was telling on us." According to
Mathews’s testimony, there was no discussion of shooting her. However,
in a subsequent conversation with Keene, Taylor, Mathews, and Woodson,
Smith said that "he was going to unload a clip in [Marvin Washington’s]
ass." According to Keene’s confession, Smith "thought that Wendy and
Marvin were going to snitch about [Smith] shooting Jeff Wright." The
group discussed picking Washington and Cottrill up and taking them "to
a park or something." The group drove to 159 Yuma and picked up
Washington and Cottrill. They dropped Woodson off at his home, then
drove to a gravel pit. At the gravel pit, Smith ordered Washington out
of the car, and Keene dragged Cottrill out. Washington and Cottrill
protested that they had not gone to the police or "snitched." Keene
and Smith forced them at gunpoint to walk behind a pile of gravel.
There, Keene shot Cottrill, and Smith shot Washington.
The grand jury indicted Keene on eight counts of
aggravated murder — two counts each for Wilkerson, Washington, and
Cottrill; one count each for Gullette and Abraham. The Wilkerson
counts each carried six death specifications (course of conduct,
escaping detection, two aggravated robbery, two aggravated burglary).
The Cottrill counts each carried four death specifications (course of
conduct, witness-murder, two kidnapping). The Washington counts each
carried three death specifications (course of conduct, witness murder,
kidnapping). The Gullette and Abraham counts each carried two death
specifications (course of conduct, aggravated robbery). The indictment
also included six counts of aggravated robbery, one count of
aggravated burglary, one count of burglary, two counts of kidnapping,
and two counts of attempted aggravated murder. All counts carried a
Waiving a jury, Keene was tried to a three-judge
panel, which found him guilty on all counts. The panel found four
death specifications as to Wilkerson’s aggravated murder counts (course
of conduct, escaping detection, aggravated robbery, aggravated
burglary); however, the panel merged the "escaping detection" and
felony-murder specifications. The panel found three death
specifications on the Cottrill murder (course of conduct, kidnapping-principal
offender, witness murder), three on the Washington murder (same), and
two on the Gullette and Abraham murders (course of conduct, aggravated
robbery). The Wilkerson, Washington, and Cottrill aggravated murder
counts were merged so that only one remained for each victim, a total
of five. After a mitigation hearing, the panel sentenced Keene to
death on each of the five counts. The court of appeals affirmed.
Lethal injection execution:
1,000th since ’76
1992 Christmas rampage left six people dead and two
July 21, 2009
LUCASVILLE, Ohio - A man who went on a 1992
Christmas holiday killing spree that left six people dead, including
an 18-year-old mother gunned down at a pay phone, was executed Tuesday,
the 1,000th execution by lethal injection in the U.S. since the death
penalty was reinstated in 1976.
Marvallous Keene, 36, who was convicted in five of
the murders, chose not to file a late appeal over his death sentence.
He died by lethal injection at the Southern Ohio Correctional Facility
in Lucasville — seven days after Ohio's last execution. It was the
fastest turnaround since the state executed two inmates in six days in
The European Union presidency, currently held by
Sweden, released a statement noting the 1,000th lethal injection
execution and calling on the U.S. to halt executions, pending the
abolition of the death penalty. "The European Union is opposed to the
use of capital punishment in all cases and under all circumstances,"
the statement said. "We believe that the abolition of the death
penalty is essential to protect human dignity, and to the progressive
development of human rights." The death penalty is abolished in the
European Union, and the United Nations General Assembly has called
upon all countries that use it to stop executions and end the practice.
More time between executions
The Ohio Supreme Court, in denying a request last
month to delay Keene's execution, said it would schedule future
executions at last three weeks apart so that public defenders will
have more time to prepare clemency cases for inmates who wish to
pursue it. Ohio has one execution scheduled per month through February
Keene and three accomplices went on a three-day
murder and robbery rampage in Dayton that began on Christmas Eve 1992.
Victims included Sarah Abraham, 38, a convenience store clerk shot in
the head after handing over $30 from a cash register, and Marvin
Washington and Wendy Cottrill, two teenage acquaintances who Keene
feared would tell police about his crimes.
Cottrill's mother, Donna Cottrill, stood when Keene
entered the death chamber, but he didn't acknowledge her or look
directly at anyone as he lay on the gurney. When the prison warden
asked Keene if he wanted to make a final statement, Keene replied,
"No, I have no words." He stared at the ceiling, then closed his eyes.
His chest slightly heaved as the drugs were administered.
Seven members of the victims' families who
witnessed the execution declined to speak to reporters afterward, as
did Keene's attorneys.
Didn't fight execution
According to the nonprofit Death Penalty
Information Center in Washington, D.C., Keene's was the 1,171st
execution — and the 1,000th by lethal injection — since the U.S.
reinstated the death penalty in 1976. Keene did not fight his
execution. At a June 17 clemency hearing, he directed his attorneys
not to present evidence on his behalf, saying he didn't want to cause
additional pain to his family or to the victims' families. Gov. Ted
Strickland last week denied clemency for Keene, who didn't request it.
Defense attorneys have said Keene, who was 19 at
the time of the slayings, was despondent over the death of his brother,
who was shot and killed a year earlier. At his trial, Keene also told
a three-judge panel that a falling out with his father contributed to
his troubled emotional state.
Prosecutors described Keene as the ringleader of a
group that called itself the Downtown Posse. The killings began with
34-year-old Joseph Wilkerson. Keene and his accomplices arrived at
Wilkerson's home under the pretext of wanting to participate in an
orgy, prosecutors said. They tied Wilkerson to his bed and ransacked
the house, and when Keene found a .32-caliber handgun in the garage,
he returned to the bedroom and shot Wilkerson twice.
Later Christmas Eve, Keene and accomplice DeMarcus
Smith approached 18-year-old Danita Gullette at a pay phone, took her
jacket and shoes and fatally shot the woman, prosecutors said.
Gullette was the mother of a 2-year-old girl. Washington, 18, and
Cottrill, 16, were acquaintances who sometimes stayed at Keene's
apartment and observed Keene returning with stolen items, prosecutors
said. They were shot and killed behind a gravel pit.
Keene's accomplices are serving life sentences.
Ohio has put 31 men to death since it reinstated
the death penalty in 1999. John Fautenberry, 45, a former Oregon truck
driver who went on a multistate killing spree in the early 1990s, was
executed last week.
10 years after Dayton's worst
Dec. 29, 2002
DAYTON - It began with a sudden impulse for
excitement and an itch for easy cash.
Before the Christmas weekend ended in 1992, six
people would be dead and two others wounded, the bloodiest murder
spree in Dayton's history.
And the ones who did it got little more than a
few dollars, some jewelry and a pair of gym shoes.
Marvallous Keene, 20, and his 16-year-old
girlfriend, Laura Taylor, had been inseparable for two weeks, ever
since they got drunk and spent that first night together.
Now, two days before Christmas, they had used up
their money for a night at a downtown hotel. Then Taylor came up
with an idea. She knew a man on Prescott Avenue who had a job at
General Motors, drove a nice car and always had money, especially
for sexual favors. He would let them in his house and they could rob
Let's do it, Keene said. He packed up his few
things, including two cheap .25-caliber automatic handguns, one
nickel-plated, the other black.
The night of Dec. 23, 1992, was clear and in the
bitter low 20s as the couple left the hotel. Without a car, they
walked the mile over the river to 159 Yuma Place, an apartment in
the Edgewood Court public housing complex where an older man named
Bill ran a crack-cocaine den. "Bill's" was where the loosely
connected gang that dubbed itself the Downtown Posse crashed and did
drugs after a night of drinking and panhandling on Courthouse
The nine youths were of different
races, different backgrounds, but all were rebellious, at odds with
their parents and shared the craving for a thrill.
Taylor, expelled from Meadowdale High School four
months before, hadn't seen her parents in nearly three weeks. Keene,
once a choir boy and regular churchgoer, had just returned to Dayton
after 18 months with his father in Los Angeles. His mother had hoped
the stay would help him overcome his rage at the murder of his
brother, fatally shot during a foiled robbery attempt the previous
Taylor was 5 feet tall, with long straightened
hair and a sweet, almost childlike face. Keene was big and flashy,
with a box haircut and a penchant for jewelry. But he could be
surprisingly polite, addressing those in authority with "yes, sir"
and "no, sir."
From Bill's apartment, Taylor called the man on
Prescott Avenue and promised him an orgy. Then she and Keene
recruited 20-year-old Heather Nicole Matthews, just out of prison in
October and reacquainting herself with crack cocaine.
Together, in the biting cold, the trio walked the
three miles up Salem Avenue to 34-year-old Joseph W. Wilkerson's
house in the 3300 block of Prescott Avenue. There, they robbed and
killed their first victim.
On Christmas Eve morning, Matthews' boyfriend,
17-year-old DeMarcus Maurice Smith, joined the spree. Smith was
wanted by police for parole violations. Another 48 hours would pass
before the killers' trail was picked up.
And for the families of the victims and the
investigators who labored to bring them to justice, Christmas would
never feel the same.
Christmas Eve Dec. 24,
At about 7 a.m., Keene, Taylor and
Matthews drove Wilkerson's red Buick back to Bill's, unloaded the
trunk and then slept at the apartment until noon. Then they got up,
went downtown and spent the afternoon hanging out at Courthouse
Square and the Arcade.
Later that evening, Taylor wanted to rob a trick.
Keene and Smith drove her to Main Street, where she lured one and
got into his car. Keene and Smith followed in the Buick. When the
car stopped on Neal Avenue, Smith got out of the Buick and shot out
the trick's back window, with Taylor still in the car.
The trick hightailed it for Main Street, over the
bridge downtown and into the parking lot of Dayton police
headquarters on Third Street.
Keene and Smith followed, but soon quit the chase.
The two drove around for a while until Smith decided to look for
Taylor. Keene left him out on Main Street. Smith was carrying his
Eventually, Keene, Taylor and Smith all returned
to Yuma Place, but left again that night in the Buick looking for
another victim. They found one at a public pay phone.
A brutal and baffling
When dispatchers contacted members
of the Dayton homicide squad at nearly 10:15 that night, Detective
Doyle Burke was at his aunt's house for Christmas dinner; Detectives
Wade and Tom Lawson - brothers who lived in Miamisburg - were with
their families, and Sgt. Larry Grossnickle was at an evening service
at the Happy Corner Church of the Brethren in Englewood.
The call was not unusual; squad members are on
call 24 hours a day, seven days a week. ("We're like King Kwik - we
never close," Burke said.) Christmas season was no exception.
The investigators found a brutal and baffling
scene at 517 Neal Ave. Blood and shell casings - nine in all - lay
spilled on the pavement near an open phone booth.
Uniformed officers told the homicide squad that
18-year-old Danita Gullette, who was on the phone when attacked, had
been removed to Grandview Hospital, where she was pronounced dead
soon after arrival.
Five bullets had pierced her body. Her shoes and
her jacket were all that seemed missing.
Witnesses said they had seen two black males
running from the scene into a long, dark red car.
"We had no idea why this lady was shot, or why so
many shots were fired," said Wade Lawson, who would be named lead
"Sometimes on this job, you can look at the scene
and get an idea of the `why,' '' Burke said. "But in some cases, and
this is a good example, there is no why. There is just no reason
Unknown to investigators, Gullette was the gang's
second victim. The first, Wilkerson, lay dead in his home on
The squad queried witnesses and
gathered evidence on Neal Avenue, including empty aluminum casings
from nine .25-caliber Blazer bullets.
Blazer wasn't rare ammunition, but it was cheap
and the casings couldn't be reloaded with new powder and a bullet,
and then reused. Most people used it for target practice, not for
Though seemingly unimportant at the time, the
casings would supply the one thread that would tie together the long
string of murders.
'We shot her! We shot her!'
Late that night, the apartment on Yuma was in
party mode. Bill wasn't there, but most of the gang was, including
Wendy Cottrill, 16, and her 18-year-old boyfriend, Marvin
Matthews was there, too, recovering from a fight
with her old boyfriend, 28-year-old Jeffrey Wright, who had just
Suddenly, Keene, Taylor and Smith came bursting
in. Taylor was holding Gullette's bag and clothing.
"We shot her! We shot her!" she excitedly told
Matthews. She and Smith went through her bag and clothing they had
taken. They found 50 cents.
"Yeah, we laid her out," Smith bragged.
He put on Gullette's Fila gym shoes and
discovered they fit. He kept them on.
Smith still had the black .25-caliber
automatic that Keene had given him, and liked to flash it. Taylor
now had a .32-caliber derringer stolen from Wilkerson's garage. The
apartment on Yuma contained other items stolen from Wilkerson's home
- including a portable color television and a microwave.
A half-hour before midnight, Wright returned to
the apartment looking for Matthews. He dragged her by the hair to a
bedroom. Smith followed and they battled over Matthews.
Smith chased Wright out of the upstairs apartment
and fired at him as he raced across an open field. As Wright hit the
ground and tried to play dead, Smith walked up and pulled the
trigger on the automatic until the gun emptied.
Shot four times in the legs, Wright got up and
ran for a neighbor's house, who helped him to the Fifth District
police station on Salem Avenue. He would get treatment and survive.
The incident must have gotten Taylor thinking
about one of her own former boyfriends, Richmond Maddox.
Maddox had money and a car.
Christmas Day, 1992
Having spent most of the night on
the Gullette case, the homicide squad members caught some fitful
daytime sleep and were trying to enjoy Christmas evening with their
families - until dispatchers called at 8:50 p.m.
The Lawson brothers were the first to arrive at
the scene in Dayton View, where a blue Chevy Caprice had smashed
into a tree in front of a house at 2256 Benton Ave. The driver's
body, a young black male, was slumped across the floor by the front
Nothing had appeared suspicious to uniformed
officers, but doctors at Good Samaritan Hospital found a .32-caliber
bullet in the skull of the driver, 19-year-old Maddox.
The Lawsons and other investigators talked to
neighbors and possible witnesses. One, John Scroggins, said he had
emerged from his house soon after hearing the crash. He said he saw
two black males standing next to the smashed car.
"He wrecked your car," the taller man said to the
shorter, Scroggins recalled.
When Scroggins shouted at the men that he had
called the police, the two calmly walked toward Salem Avenue. The
men were Keene and Smith; Matthews picked them up in the Buick.
To the Lawsons and the other investigators, it
was one more bizarre Christmas murder. And it didn't even hint at a
link to the brutal killing of Gullette. This time, the killer had
used .32-caliber ammunition, not .25-caliber.
And death was delivered with a single shot.
'I shot him in the head'
When Matthews picked up Taylor in the parking lot
of a Salem Avenue shopping center, Taylor was agitated, trying to
unjam her derringer. Matthews told her to calm down and tell her
"I shot him in the head," she said. "I shot him."
Taylor had lured Maddox from his parents' home by
promising to go with him to a hotel. When Maddox noticed a car
following, with Matthews, Keene and Smith inside, Taylor said they
were her cousins just making sure she "got to the hotel safe."
But Maddox, suspicious, stopped for a minute on
Benton Avenue, then hit the accelerator.
That's when Taylor put the derringer to his right
temple and pulled the trigger.
Taylor threw open the passenger door and rolled
out of the careening car just before it hit a tree. Her right leg
injured from the jump, she ran limping all the way to Salem Avenue.
Dec. 26, 1992
After the shooting of Wright on Yuma Place late
Christmas Eve, the gang changed its choice of hangout to elude the
police. Now they gathered at the Kumler Avenue home of Sandra Pinson,
the mother of another gang member, 16-year-old Deon, and the aunt of
yet another, 17-year-old Nicholas Woodson.
The youths talked about ways to get quick cash,
then took off in two cars, one following the other. But sometime
between 1 and 2 a.m., the cars separated.
Riding in the Buick, Matthews,
Taylor, Keene and Smith decided to drive to a bank on Salem Avenue
and rob someone using the ATM machine.
After a long wait, a driver finally pulled up to
the ATM, but suspicious of the other car in the lonely parking lot,
drove away without taking money
The gang moved on, and pulled into a BP station
on Salem Avenue, where they spotted a young woman pumping air into
Keene and Smith burst out of the car. Keene
pulled his silver automatic and Smith said, "Shoot her."
The woman ran without shots being fired, and
Keene and Smith got into her car, a black Dodge Shadow. Both cars
returned to Kumler Avenue.
They still had no cash.
Keene and Smith decided they should rob a store.
Taylor chose the target: A little place on West
Fifth Street, the Short Stop Mini Market, where just two people
worked. It was isolated and easy. Matthews gave Smith her gun and
drove the four of them there.
Taylor walked in first to case the place. The
plan was, if she didn't come out after several minutes, it meant the
coast was clear.
Taylor bought chewing gum, then
walked to the back of the store and took out a Chilly Willy fruit
juice from the refrigerator case. She asked how much the Chilly
Sarah Abraham, the clerk behind the counter and
the working mother of an 11-year-old girl, answered, "Thirty-five
Taylor was a nickel short, so she went up to
Jimmy Thompson, 71, a regular at the store who sometimes did errands
for Abraham and her assistant, Jones Pettus. Thompson gladly gave
the sweet-looking girl a nickel.
Then Keene and Smith entered the store.
Playing dead to live
After a long Christmas night working the Maddox
case, the homicide squad was called out a third time at 8 a.m. -
barely enough time for breakfast, shower and a shave.
The scene at the Short Stop Mini Mart was a
frightening mess, especially behind the counter where Abraham had
been shot. She had been removed to St. Elizabeth Medical Center,
clinging to life with two bullet wounds, one through her mouth, the
other into the top of her head. She would linger five days before
The gang had fled with $44.
But this time detectives had two excellent
witnesses. Pettus had been shot in the stomach but was still
conscious. Thompson had escaped injury by faking a hit and slumping
over the counter.
"We had good descriptions of both the suspects
and the getaway car," Wade Lawson said.
It was a blue Pontiac Grand Am,
the second of two cars stolen from Wilkerson, whom the squad still
had no idea was dead. No one had reported him missing.
And the killers left an intriguing clue - the
gunmen had used .25-caliber Blazer ammunition, the same caliber and
brand that had killed Gullette. But until the shells had undergone
ballistics tests, there was no way to be certain it was a match.
As more witnesses were interviewed, the killers'
descriptions began to overlap.
Burke left the Short Stop with a nagging feeling
they would be hearing from the same shooters again.
'We didn't snitch'
Back at Kumler Avenue, Keene and
Smith were getting scared. Too many people now knew too much, and
any one of them could snitch to police.
Keene and Smith moved the blue Grand Am to
Catalpa Drive, the next street over from Kumler, then switched
license plates between the stolen Dodge Shadow and Wilkerson's car
to try to throw off police.
But Smith still didn't feel safe, especially from
Cottrill and her boyfriend, Washington. "We ought to unload a clip
in Marvin. . ." Smith said. He was convinced that Washington had
told police he had shot Wright, Matthews' old boyfriend.
Five gang members - Keene, Smith, Taylor,
Matthews and now Nick Woodson - then crammed into the black Shadow
and drove to Bill's at Yuma Place. There they invited Cottrill and
Washington to drive around and get something to drink.
Behind Keene, who was driving, sat Woodson, with
Cottrill in the middle sitting on Washington's lap and Taylor by the
door. Cottrill was pregnant with Washington's child.
They drove first to a liquor drive-through, and
passed the drinks around the car.
Keene soon decided to visit his brother's grave,
and drove them over to the cemetery on Germantown Street.
Woodson, who sensed what would happen next, asked
to be taken home. Keene dropped him off on Limestone Avenue and the
remaining six drove around until Keene happened to see an open gate
at a city gravel storage area off Richley Drive. Keene pulled
through the gate and stopped the car.
Keene got out and drank some Wild Irish Rose.
Then Smith got out and drank his Thunderbird.
Keene told Cottrill to get out of the car. Smith
told Washington to do the same.
Keene pulled his gun first, then
"We didn't snitch," Cottrill pleaded. "We didn't
'Can you come in and talk?'
Tipsters' calls were flooding into the downtown
homicide office by that afternoon. Grossnickle, who like the rest of
the squad hadn't had a decent night's sleep in three days, was going
through a mountain of paperwork for the Abraham case when dispatch
sent through a call from a man named Nick Woodson.
After years of investigating homicides,
Grossnickle had developed an instinct about good tipsters: "Sometimes,
when you talk to people, there's just more clarity to their voice.
You know what I mean? This guy, I could tell he was in trouble, and
he knew it."
"What have you got for me?" Grossnickle asked.
Woodson said he was very scared of some people
who were trying to get him to help rob and kill people.
"Can you come in and talk?" Grossnickle asked.
Woodson said he couldn't.
Grossnickle took the information over the phone.
Woodson, it turned out, was for real. He
confirmed much of what the investigators already knew, and added
He gave Grossnickle the full name of DeMarcus
Smith and Matthew's first name, Heather, but could only describe
Keene and Taylor. He also said the gang had been driving several
cars in the past few days - a red Buick, a blue Grand Am and a black
Dodge Shadow. Woodson said he knew where there was yet another body
- a white man in a home off Salem Avenue.
The gang had taken Woodson there to party while
the man lay dead.
Grossnickle told Woodson that, for his own safety,
officers would bring him downtown for further questioning.
"You'd better be quick about it," Woodson said.
Grossnickle dispatched the Lawson brothers, who
were on Fifth Street finishing interviews in the Abraham case.
When the Lawsons got to Woodson's home on
Limestone Avenue, Woodson already had left for the downtown police
station. But a neighbor of Woodson's was talking.
Just before leaving, Woodson had told the woman
he was afraid some killers were coming to pick him up, most likely
in a black Dodge Shadow.
Dispatchers spread the information to patrol
units, with a reminder to use caution - the four suspects in the car
were clearly armed and dangerous.
'Suspect vehicle on the move'
In his downtime, Sgt. John Huber liked to drive
his cruiser along the streets of his northwest Dayton beat, checking
on businesses and homes and keeping an eye out for trouble and
At about 2:45 p.m. the day after Christmas, Huber
was driving along Cornell Drive when he glanced south down Kumler
Avenue and saw something that caught his eye - a black Dodge Shadow
he had never seen in the neighborhood before.
The car was in front of 726 Kumler. Huber called
in license number - FKO 727 - to see if it belonged to the stolen
Shadow. A check showed the plate belonged to a blue 1989 Pontiac
Grand Am - registered to Wilkerson. Huber, then a 16-year veteran of
the streets, quickly realized the suspects had switched the plates.
He turned down an alley in front of the Shadow,
where he intended to turn around and keep an eye on the car. But at
the end of the alley, he stumbled on another find - a blue 1989
Grand Am with no rear plate.
Huber got out, checked the front license plate -
FMB18 - and recognized it as that of the stolen Shadow reported
early that day.
Huber radioed the information to dispatchers and
called for more crews to assist in surveillance.
He was in the alley when he saw the black Dodge
Shadow take off.
Huber called on his hand radio as he raced to his
cruiser: "Suspect vehicle on the move. Repeat, suspect vehicle
When Huber reached Kumler in his cruiser, he was
surprised to find the Shadow had traveled just two blocks. Moments
later, the car stopped and one of the four suspects got out and ran.
Unknown to Huber, it was Smith, fleeing back to the Pinsons' house
on Kumler Avenue.
Huber focused on the Shadow and
the other three suspects.
By the time the Shadow turned east on Riverview
Avenue, backup units were closing in. Huber turned on his emergency
lights. At the same time, the Lawson brothers, in the area to pick
up Woodson, were traveling west on Riverview. They blocked the
Shadow with their unmarked car.
The Shadow stopped. Huber jumped from his cruiser
with his gun drawn, careful to stand behind his door.
An unmarked police van pulled up beside Huber.
Three plainclothes officers with riot shotguns emerged from its side
door. Three more backup units pulled up behind Huber.
Every officer had his gun pointed at the Shadow.
Shouts of "Get out of the car!" ricocheted through the air.
The suspects came out slowly and peaceably.
They found Keene's .25-caliber, nickel-plated
handgun under the driver's seat.
One of Wendy Cottrill's delicate gold necklaces
was around Keene's neck. He was wearing Danita Gullette's red-and-white
plaid jacket. In his pocket was a commemorative pocket knife that
matched knives Wilkerson gave to his male relatives.
Soon, a woman told Detective Terry Pearson where
the man who fled from the car had gone - the Pinson address on
Gym shoes and traffic tickets
Pearson and Detective Frank Nankivell arrived at
the Kumler address and asked Sandra Pinson if they could come in.
She said fine.
Pearson asked if anyone else was home.
"No," Pinson said.
But the detectives heard steps. Coming downstairs
was a young black male wearing a pair of green slacks, no shirt, no
"Who are you?" Pearson asked.
"Deon," he said. "I live here."
Sandra Pinson said nothing.
"Could we check the rest of the house?"
Sandra Pinson said they could.
Upstairs, they found Earl
Strickland, Sandra Pinson's boyfriend. Strickland told the officers
that the man in the green pants was not Sandra Pinson's son, Deon,
but the person they were looking for.
Pearson and Nankivell arrested the young man,
whom they later learned was Smith. Before they took him to
headquarters, the detectives had him get his clothes out of the
bedroom closet. Among the items there were Gullette's Fila gym shoes.
Sandra Pinson told the detectives that the gang
had been living in her home the last few days. She and Strickland
had been too afraid even to come downstairs because they all had
She said that her son, Deon, had been arrested on
traffic violations with a stolen car given him by Keene - a red 1974
Sandra Pinson showed them her son's traffic
Pearson called in the registration on the stolen
car. It belonged to Joseph W. Wilkerson, in the 3300 block of
Police converged on Wilkerson's home at about 3
p.m., and found no signs of forced entry. But the door was unlocked
and no one was answering.
In the living room, they saw furniture overturned
and items scattered. A TV set appeared to be missing, dust on an
empty stand the only clue. The kitchen in the back was an even
bigger mess: Cabinets open, their contents spilled. Silverware,
magazines and coins were strewn about. A small microwave appeared to
be missing from its niche.
Room after room had been ransacked.
In the back bedroom, Wilkerson's body lay on the
bed in the middle of the room. Arms spread-eagled, his wrists were
tied to bedposts with electrical cord, his face and chest covered
with bloody quilts. He had apparent gunshot wounds to the right eye,
another to the left chest.
In the bed's tangled sheets, Burke found what he
had feared - an aluminum casing for a .25-caliber Blazer bullet.
"That was the culmination of everything," Burke
said. "We realized what we had been dealing with all along."
'A cold-hearted girl'
The four suspects, now in custody
downtown, were interrogated in separate rooms.
Keene, Smith and Matthews volunteered nearly
everything - "nearly" because no one mentioned what had happened to
Cottrill and Washington at the city gravel storage area.
Then again, the investigators, who knew nothing
of those murders, hadn't asked.
Keene was cooperative, even respectful, answering
"yes, sir" and "no, sir" - a throwback, perhaps, to his choirboy
"It was hard to believe, with his demeanor, that
he was responsible for these murders," Wade Lawson said.
Matthews, who had never pulled a trigger but
often drove the getaway car, gave the most complete statement to
avoid a death sentence.
But Taylor, tight-mouthed and defiant, wanted a
"None of them showed any remorse, but at least
with the other three you got the impression that they realized the
consequences of their actions," Burke said. "But Laura (Taylor)
couldn't have cared less - or at least it seemed to me."
"A cold-hearted girl," Wade Lawson called Taylor.
It had been Taylor's idea to rob
the Short Stop Mini-Mart, police interviews would disclose. She
didn't shoot anyone there, but she had cased the place for Keene and
It had been Taylor's idea to entice Wilkerson
with sex, then rob him in his home. After Keene shot Wilkerson in
the chest, Taylor finished him with a second shot to his head, using
the derringer she found in his home.
It had been Taylor's idea to rob and kill her old
boyfriend, Richmond Maddox. She used the same derringer to put a
bullet in his head.
Perhaps most cold-blooded of all, Keene said
Taylor had watched as he put a gun into the mouth of her friend,
Cottrill, and fired.
But because of her age and her sex, and perhaps
her petite size, local civil rights activists viewed Taylor as an
unwilling accomplice. They pressed for her release, and she was
transferred to the youth detention center.
There she was counseled by the Rev. William Head,
chief investigator of the Dayton branch of the NAACP.
Soon after, Head would supply police with a final
word to complete the grisly case.
Dec. 27, 1992
At 4:45 p.m., Burke with his family in North
Dayton, sitting down to Christmas dinner, two days late. He felt
good that the four suspects were off the streets.
Then the phone rang. When he heard
the Rev. Head had paged him, his heart sank. The reverend never
bothered him at home unless it was urgent.
Two more bodies, Head said.
At about 5:30 p.m., investigators gathered at the
city gravel storage area south of Richley Drive. It was in a woods
across the street from Louise Troy School. The gate to the complex
Just beyond a large pile of dirt and gravel, two
Cottrill had been shot in the mouth and through
the ear. Her shoes were missing. She was on her back, her coat open
and the inside pockets pulled out. Above her head, a foot away, were
three spent .25-caliber Blazer casings.
Eight feet away was Washington's body, also on
his back, shot several times in his side and in the head. Seven .25-caliber
casings silhouetted his body.
Cottrill's mother identified her from a
photograph. She hadn't seen her 16-year-old daughter in three weeks.
Keene, Taylor, Matthews and Smith were convicted
of murder. The trial and sentencing went smoothly, thanks to a
strong investigation and willing witnesses.
Barring a miracle, none of the
four will ever see the outside of a jail cell.
Taylor and Matthews are in the Ohio Reformatory
for Women in Marysville. Taylor will be eligible for parole in 2098,
Matthews in 2132. Smith, at the Mansfield Correctional Institute,
won't be up for parole until 2123.
Keene is on death row at Mansfield.
Grossnickle called the investigation "a great one,"
in part because "of all the information we got from citizens."
A great investigation, but the worst crime the
investigators have seen in their careers.
Some might argue the dubious honor belongs to
Samuel Moreland, convicted in one of Dayton's bloodiest mass murders
after he killed two women and three children in a South Ardmore
Avenue home in 1985.
"But that was a one-time act," Grossnickle said.
"He didn't have time to think about it the next day, and then kill
another one, and think about it the next day and kill another, and
on and on."
Alton Coleman, another killer, comes to mind,
Burke said. He and his girlfriend, Debra Denise Brown, killed least
seven people in Ohio and Indiana during a multistate rampage of
rape, robbery and murder in 1984.
They assaulted two couples in Dayton but killed
no one here.
But the Christmas killers in Dayton did it
clearly for the thrill. And when it seemed their own friends might
turn them in, they killed them without mercy.
"This was a game. This was for fun,"
Burke said. "They had taken these people's lives just the way we
swat a fly. They wanted the violence, and everything else seemed
secondary." Grossnickle, 56, retired as head of the homicide squad
six years ago, soon after his own son, 25-year-old Officer Jason
Grossnickle, was shot and killed in the line of duty in 1996.
Grossnickle feels all four gang members deserve
the death penalty. But he also realizes that no punishment can bring
back the victims or satisfy their loved ones.
"I realize how hard it is for these people to go
on," he said.
State of Ohio, Appellee, v . Keene,
96-2455 — Submitted January 21, 1998 —
Decided May 13, 1998.)
from the Court of Appeals for Montgomery
County, No. 14375.
Marvallous Keene, was sentenced to death for
the aggravated murders of five victims. The
offenses occurred on December 24 and 26,
1992. He appeals his convictions and death
December 1992, appellant was consorting with
a group of people, including several
juveniles, who at various times stayed at
Bill McIntire’s apartment at 159 Yuma Avenue,
Dayton. This group included Laura Taylor,
DeMarcus Smith, Nicholas Woodson, Heather N.
Mathews, Wendy Cottrill, Marvin Washington,
and Jeffrey Wright.
December 24, 1992, appellant and Taylor
enlisted Mathews to help them rob Joseph
Wilkerson, an acquaintance of Taylor’s.
Taylor told Mathews that she had arranged
for the three of them to go to Wilkerson’s
house on the pretext of having an orgy with
Wilkerson. Mathews agreed to take part in
Taylor, and Mathews walked to Wilkerson’s
house. After a drink, Wilkerson and Taylor
went to the bedroom. After waiting briefly,
appellant and Mathews followed them.
Wilkerson began to take his clothes off.
Taylor and Mathews pretended to do the same.
began to remove his own pants, then pulled
them back up and drew a gun. He ordered
Wilkerson onto the bed, then commanded
Taylor and Mathews to tie Wilkerson’s hands
to the bed.
appellant watched Wilkerson, Taylor and
Mathews went through the house, looking for
things to steal. They took a microwave oven,
a TV, a cordless phone, a curling iron, and
a blow dryer, which they loaded into
Wilkerson’s Buick. Wilkerson told appellant
that he kept a .32-caliber derringer in the
garage. Appellant found it and brought it
back to the bedroom.
subsequently confessed that he shot
Wilkerson in the chest with the derringer,
after covering him with blankets to muffle
Mathews, hearing the shot, returned to the
bedroom and saw appellant holding the
derringer. Wilkerson’s feet were shaking.
Appellant handed the derringer to Taylor,
but it would not fire again. So appellant
gave Taylor his own gun, and Taylor shot
Wilkerson in the head. Wilkerson stopped
shaking. Appellant and his accomplices then
left in the Buick. Appellant warned his
accomplices not to tell Cottrill and
evening, appellant, Taylor, and Smith went
walking. Appellant and Smith were carrying
guns. Appellant later confessed to police
that, as they were walking, they saw Danita
Gullette at a public telephone. Smith and
appellant drew their guns, and Smith forced
Gullette at gunpoint to take her shoes off.
Smith and appellant then shot Gullette.
Smith took her shoes and jacket. When they
returned to the apartment, Taylor was
wearing Gullette’s jacket and Smith was
carrying Gullette’s shoes.
night, Smith shot Mathews’s boyfriend,
Jeffrey Wright, outside 159 Yuma. Appellant,
Mathews, Taylor, and Smith then left in
December 25, appellant returned to
Wilkerson’s house and stole more items,
including Wilkerson’s other car, a Pontiac.
Also on December 25, Taylor robbed and
murdered her former boyfriend, Richmond
the morning of December 26, Mathews drove
the Pontiac to a BP service station, where
appellant and Smith stole Kathie Henderson’s
car at gunpoint. Appellant and Smith drove
off in Henderson’s car; Mathews followed in
morning, Mathews drove the Pontiac to the
Short Stop Mini-Mart, with appellant, Smith,
and Taylor in the car. Taylor went into the
store, then came back to report that there
were only two people inside. Mathews handed
a .32-caliber revolver to Smith; Smith and
appellant were also carrying .25-caliber
automatic pistols. Appellant and Smith went
into the store.
Abraham, whose family owned the store, was
working behind the cash register. Appellant
ordered her at gunpoint to open it. Abraham
did so and removed $40, which she handed to
appellant. Appellant shot Abraham in the
head. Several days later, Abraham died of
her wound. Smith also shot at two other
people, Jones Pettus, a customer, wounding
him, and Edward Thompson, a helper, both of
whom survived and testified against
day, Taylor and Mathews discussed "jumping"
Cottrill because they "thought she was
telling on us." According to Mathews’s
testimony, there was no discussion of
shooting her. However, in a subsequent
conversation with appellant, Taylor, Mathews,
and Woodson, Smith said that "he was going
to unload a clip in [Marvin Washington’s]
ass." According to appellant’s confession,
Smith "thought that Wendy and Marvin were
going to snitch about [Smith] shooting Jeff
Wright." The group discussed picking
Washington and Cottrill up and taking them "to
a park or something."
drove to 159 Yuma and picked up Washington
and Cottrill. They dropped Woodson off at
his home, then drove to a gravel pit. At the
gravel pit, Smith ordered Washington out of
the car, and appellant dragged Cottrill out.
Washington and Cottrill protested that they
had not gone to the police or "snitched."
Appellant and Smith forced them at gunpoint
to walk behind a pile of gravel. There,
appellant shot Cottrill, and Smith shot
jury indicted appellant on eight counts of
aggravated murder — two counts each for
Wilkerson, Washington, and Cottrill; one
count each for Gullette and Abraham. The
Wilkerson counts each carried six death
specifications (course of conduct, escaping
detection, two aggravated robbery, two
aggravated burglary). The Cottrill counts
each carried four death specifications (course
of conduct, witness-murder, two kidnapping).
The Washington counts each carried three
death specifications (course of conduct,
witness murder, kidnapping). The Gullette
and Abraham counts each carried two death
specifications (course of conduct,
indictment also included six counts of
aggravated robbery, one count of aggravated
burglary, one count of burglary, two counts
of kidnapping, and two counts of attempted
aggravated murder. All counts carried a
jury, appellant was tried to a three-judge
panel, which found him guilty on all counts.
The panel found four death specifications as
to Wilkerson’s aggravated murder counts (course
of conduct, escaping detection, aggravated
robbery, aggravated burglary); however, the
panel merged the "escaping detection" and
found three death specifications on the
Cottrill murder (course of conduct,
kidnapping-principal offender, witness
murder), three on the Washington murder (same),
and two on the Gullette and Abraham murders
(course of conduct, aggravated robbery). The
Wilkerson, Washington, and Cottrill
aggravated murder counts were merged so that
only one remained for each victim, a total
of five. After a mitigation hearing, the
panel sentenced appellant to death on each
of the five counts. The court of appeals
ALICE ROBIE RESNICK, Justice.
Alice Robie Resnick, J. R.C. 2929.05(A) requires us
to undertake a three-part analysis of capital cases. First, we must
review the specific issues raised by the appellant with respect to the
proceedings below “in the same manner that [we] review other criminal
cases.” Second, we must independently weigh the aggravating
circumstances found by the trier of fact against the mitigating
factors existing in the case. Finally, we must consider whether the
sentence of death is disproportionate to penalties imposed in similar
In this appeal, appellant raises twenty-six
propositions of law. Finding that none of these claims affords a basis
for reversing appellant's convictions or sentences, we overrule all
twenty-six propositions of law. We have also independently reviewed
appellant's death sentences, as required by R.C. 2929.05(A). As a
result, we affirm the death sentences imposed herein.
I Discriminatory Prosecution
Appellant filed a motion in the trial court to
dismiss the death specifications from the indictment for
“discriminatory enforcement.” Appellant claimed that the Montgomery
County Prosecuting Attorney discriminates against black defendants in
exercising his discretion to seek the death penalty. The trial court
denied the motion to dismiss, and also denied appellant's requests for
discovery and an evidentiary hearing on his discriminatory-prosecution
In his first proposition of law, appellant claims
that the trial court should have afforded discovery and a hearing on
his discriminatory-prosecution claim. He relies on both Crim.R. 16 and
federal constitutional law. We begin by analyzing his Crim.R. 16 claim.
Crim.R. 16(B)(1)(f) requires the prosecutor to
disclose “all evidence * * * favorable to the defendant and material
either to guilt or punishment.” According to appellant, evidence that
the prosecuting attorney has discriminated against black defendants in
seeking the death penalty would be both “favorable” to him and
“material to * * * punishment.” Such evidence, appellant contends,
would be “favorable” because it would support his claim of
discriminatory prosecution. And it would be “material to * * *
punishment,” he contends, because it has to do with the prosecuting
attorney's charging practices in seeking the death penalty. Appellant
therefore contends that any evidence in the prosecutor's possession
that supports his claim of discrimination is discoverable under Crim.R.
However, the history of the rule's
language, “favorable to the defendant and material to guilt or
punishment,” suggests a different interpretation. That phrase comes
directly from Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct.
1194, 1196-1197, 10 L.Ed.2d 215, 218, which requires the state to
disclose “evidence favorable to an accused * * * where the evidence is
material either to guilt or to punishment.” We therefore conclude that
the terms “favorable” and “material” in Crim.R. 16(B)(1)(f) have the
same meaning as they do in Brady and its progeny.
Under Brady, “evidence favorable to an accused [and]
* * * material either to guilt or to punishment” is generally
construed to encompass only exculpatory, mitigating, and impeachment
evidence. “Thus the principles of Brady do not apply unless the
evidence is material to mitigation, exculpation or impeachment.”
Calley v. Callaway (C.A.5, 1975), 519 F.2d 184, 221.
Appellant's selective-prosecution claim does not
fall within those categories. “A selective-prosecution claim is not a
defense on the merits to the criminal charge itself, but an
independent assertion that the prosecutor has brought the charge for
reasons forbidden by the Constitution.” United States v. Armstrong
(1996), 517 U.S. 456, 463, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687, 689.
Similarly, appellant's selective-prosecution claim is not a “defense
on the merits” to the death penalty; that is, the claim goes neither
to appellant's eligibility for the death penalty nor to whether his
offenses merit death. Instead, his claim is that the death penalty may
not be applied because the prosecutor sought it “for reasons forbidden
by the Constitution.” Id.
We conclude that evidence relevant to a selective-prosecution
claim is not “favorable to an accused [and] * * * material either to
guilt or to punishment” within the meaning of Brady and Crim.R.
16(B)(1)(f); therefore, such evidence is not discoverable under the
Having rejected appellant's state-law claim, we
must assess appellant's claim that the trial judge had a
constitutional obligation to allow discovery.
In United States v. Armstrong, the court held that
a defendant, in order to obtain discovery on a selective-prosecution
claim, must “produce some evidence that similarly situated defendants
of other races could have been prosecuted, but were not * * *.” FN1
517 U.S. at 469, 116 S.Ct. at 1488, 134 L.Ed.2d at 701. The standard
is deliberately “rigorous,” 517 U.S. at 468, 116 S.Ct. at 1488, 134
L.Ed.2d at 701, because “the showing necessary to obtain discovery
should itself be a significant barrier to the litigation of
insubstantial claims.” Id. at 464, 116 S.Ct. at 1486, 134 L.Ed.2d at
FN1. Armstrong does not expressly state that the
right to discovery on a claim of racially discriminatory prosecution
is grounded in the Constitution (and hence applicable to state as well
as federal prosecutions). However, the parties to this case have
proceeded on the assumption that the discovery right is
constitutionally grounded. We think that assumption correct, since the
discovery right outlined in Armstrong derives from, and is meant to
enforce, the Fourteenth Amendment's prohibition of racially
Appellant failed to produce some evidence that
similarly situated defendants could have been prosecuted but were not.
Appellant points to the treatment of his white co-defendant,
Mathews. Mathews was indicted with death specifications, but the
prosecutor dropped the specifications in exchange for Mathews's
testimony against appellant. Why, appellant asks, did the prosecutor
not bargain with him and seek the death penalty for Mathews?
Appellant was the triggerman in four of the five
aggravated murders involved here. Mathews was charged with only two of
these murders. In neither case did Mathews pull the trigger. Indeed,
the record discloses no clear evidence that Mathews actually intended
the deaths of Wilkerson and Abraham. Mathews, therefore, is not a
“similarly situated” defendant.
Appellant also cites the case of three white
defendants who went on what appellant describes as a killing spree
involving the robbery, burglary, and murder of two victims. Appellant
alleges that “the same” death specifications could have been lodged,
yet the Montgomery County Prosecutor did not seek the death penalty.
However, the state contends that the evidence against these defendants
was significantly weaker than the evidence against appellant. Two of
the defendants received plea bargains and testified against the third;
in spite of this, the third defendant was acquitted of one of the two
Appellant claims that sixty-four percent of capital
indictments in Montgomery County since 1981 have been lodged against
black defendants, while the county's population was only seventeen
percent black. However, as the court of appeals noted, this statistic
creates no inference of discrimination by itself. Appellant did not
show the percentage of black and white defendants in potentially
capital cases who were indicted without capital specifications.
Without that, there can be no meaningful comparison.
Appellant's contrary argument appears to rest on a
presumption that, if seventeen percent of the county's population is
black, then blacks must have committed about seventeen (or, at any
rate, substantially less than sixty-four) percent of potentially
capital crimes. Appellant argues that even to question that
presumption would constitute forbidden racial stereotyping. However,
that cannot be correct, for the Armstrong court itself rejected a
presumption “ ‘that people of all races commit all types of crimes.’ ”
(Emphasis sic.) 517 U.S. at 469, 116 S.Ct. at 1488, 134 L.Ed.2d at
701, quoting United States v. Armstrong (C.A. 9, 1995), 48 F.3d 1508,
In any event, statistical evidence does not satisfy
Armstrong' s requirement that the defendant identify similarly
situated defendants who could have been prosecuted, but were not.
“[T]he general rule [is] that in cases involving discretionary
judgments ‘essential to the criminal justice process,’ statistical
evidence of racial disparity is insufficient to infer that prosecutors
in a particular case acted with a discriminatory purpose.” United
States v. Olvis (C.A.4, 1996), 97 F.3d 739, 746, quoting McCleskey v.
Kemp (1987), 481 U.S. 279, 297, 107 S.Ct. 1756, 1769-1770, 95 L.Ed.2d
262, 281. The state has no duty to explain such a statistical
disparity. Olvis, 97 F.3d at 746.
Appellant also points out that the Montgomery
County Prosecuting Attorney has never obtained a death sentence
against a white defendant. This is quite irrelevant, however, since
appellant claims discrimination in charging practices.
We conclude that appellant failed to show “some
evidence” that similarly situated defendants of other races could have
been charged with death penalty specifications but were not. Therefore,
he did not establish a constitutional right to discovery on his claim.
Appellant also claims that he was entitled to an
evidentiary hearing on his due-process claim. Again, he raises both a
federal constitutional claim and a state-law claim.
Citing United States v. Hazel (C.A.6, 1983), 696
F.2d 473, 475, appellant contends that due process entitled him to a
hearing because he presented sufficient facts to raise a reasonable
doubt as to the prosecutor's purpose. However, for the same reasons
that he was not entitled to discovery, he was not entitled to a
hearing. The facts he presented do not raise a reasonable doubt as to
the prosecutor's purpose.
Appellant further argues that Ohio law entitles a
defendant to a hearing on any pretrial motion that “states the
motion's legal and factual bases with sufficient particularity to
place the prosecutor and the court on notice of the issues to be
decided.” For this assertion, he cites Crim.R. 12(B) and State v.
Shindler (1994), 70 Ohio St.3d 54, 636 N.E.2d 319, syllabus.
However, Shindler involved a motion to suppress
evidence found in a warrantless search. In that situation, the
prosecutor bore the burden of proving the legality of the search. With
a selective-prosecution claim the burden is upon the defendant; the
prosecutor is presumed not to have discriminated. “In order to dispel
[that] presumption * * *, a criminal defendant must present ‘clear
evidence to the contrary.’ ” Armstrong, 517 U.S. at 465, 116 S.Ct. at
1486, 134 L.Ed.2d at 698-699, quoting United States v. Chem. Found.,
Inc. (1926), 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131, 143. We
agree with the court of appeals that Shindler is distinguishable.
Appellant's first proposition of law is overruled.
In his fourteenth proposition of law, appellant
argues that the evidence he submitted was by itself enough to show
racial bias on the part of the county prosecutor. Therefore, he
argues, his convictions should be reversed.FN2 Yet, appellant candidly
admits that he “did not prove that the prosecutor purposefully
intended to discriminate against him. Therefore, he has not met the
burden for this type of claim as enunciated in McCleskey v. Kemp * * *
FN2. Presumably, appellant means his death
sentences should be reversed; he makes no claim that the prosecutor's
decision to prosecute him in the first place was tainted by
This concession would seem fatal to appellant's
claim. However, appellant argues that-despite McCleskey-he was not
required to prove purposeful discrimination against him.
First, he argues that the state, by successfully
opposing his motion for discovery and a hearing, made it impossible to
establish discriminatory purpose. Thus, he argues, the prosecutor
“waived the McCleskey requirements.” But we can see no sense in
penalizing the prosecutor for successfully opposing appellant's motion.
Next, appellant tries to distinguish McCleskey on
its facts. But the requirement of proving purposeful discrimination
was not a novel creation of the McCleskey court and cannot be limited
to the specific facts of McCleskey. Rather, it is a basic and
generally applicable principle of Fourteenth Amendment equal
protection analysis that a party claiming an equal protection
violation has the burden of proving purposeful discrimination.
McCleskey, 481 U.S. at 292, 107 S.Ct. at 1767, 95 L.Ed.2d at 278,
quoting Whitus v. Georgia (1967), 385 U.S. 545, 550, 87 S.Ct. 643,
646, 17 L.Ed.2d 599, 603-604. See, also, Armstrong, 517 U.S. at 465,
116 S.Ct. at 1487, 134 L.Ed.2d at 699, quoting Wayte v. United States
(1985), 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547, 556.
Finally, appellant argues that we should construe
the Ohio Constitution to require a finding of racially biased charging
decisions in capital cases “upon a showing of disparate impact,
without a need to prove the prosecutor's subjective intent.” But
appellant offers no textual analysis of the state constitutional
provisions he purports to rely upon (Ohio Constitution, Article I,
Sections 1, 9, 10, 16, and 20), cites no precedent construing those
provisions as he suggests, and states no reason why we should so
Appellant concedes that he has not met his burden
of proving that the prosecutor purposely discriminated against him in
charging him with capital offenses, and he offers no persuasive reason
to relieve him of this burden. We therefore overrule his fourteenth
proposition of law.
II Evidentiary Sufficiency
In his sixth proposition of law,
appellant contends that the state failed to adduce sufficient evidence
to prove his guilt of certain death specifications.
A. Wendy Cottrill-Marvin Washington
Counts Sixteen, Seventeen, Nineteen, and Twenty
charged appellant with the aggravated murders of Cottrill and
Washington. Each count carried a death specification under R.C.
2929.04(A)(8), charging that appellant murdered the victims “to
prevent [their] testimony in any criminal proceeding.” Appellant
claims that the state failed to prove the (A)(8) specifications.
However, his claim is based on a patent misreading of R.C.
Under R.C. 2929.04(A)(8), it is an aggravating
circumstance that “[t]he victim * * * was a witness to an offense who
was purposely killed to prevent his testimony in any criminal
proceeding * * * or * * * in retaliation for his testimony in any
criminal proceeding.” (Emphasis added.)
The state's evidence showed that appellant murdered
Cottrill and Washington because they had seen Smith shoot Wright.
However, appellant claims that, if he killed the victims to prevent
their testimony against Smith, the (A)(8) specification does not apply.
According to appellant, the specification would apply only if he
killed them to prevent them from testifying against appellant.
Appellant's argument is inconsistent with the plain
language of the statute. R.C. 2929.04(A)(8) says “ any criminal
proceeding.” No language limits it to cases where the victim witnessed
a crime committed by his killer. Nor would such a limitation make
sense: appellant's reading of R.C. 2929.04(A)(8) would shield an
organized-crime assassin who murdered witnesses to protect his fellow
Appellant argues, “Under the State's logic, anyone
could be charged with a capital specification as long as the
individual they [ sic ] murdered, at one time, was a witness to a
crime.” That is incorrect. The (A)(8) specification applies only where
the murder was committed “ to prevent [the victim's] testimony * * *
or * * * in retaliation for his testimony.” (Emphasis added.)
The state adduced sufficient evidence to permit a
finding that appellant killed Cottrill and Washington to prevent them
from testifying against Smith. Therefore, the evidence supports
appellant's conviction on the (A)(8) specifications.
B. Joseph Wilkerson
Appellant contends that he was not proven to be the
principal offender in this murder because the coroner did not testify
that his bullet caused Wilkerson's death. Appellant appears to assume
that the state had to prove appellant's bullet was the sole cause of
death. We disagree. We have said that “principal offender” means “the
actual killer.” State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d
744, 746. However, we have never held that it means “the sole offender.”
There can be more than one actual killer-and thus more than one
principal offender-in an aggravated murder. See State v. Joseph
(1995), 73 Ohio St.3d 450, 469, 653 N.E.2d 285, 300 (Moyer, C.J.,
dissenting in part and concurring in part).
The coroner testified that Wilkerson died of
multiple gunshot wounds and that appellant's shot to Wilkerson's heart
would by itself have killed Wilkerson. Thus, the fact that Taylor
finished Wilkerson off does not alter appellant's role as a principal
C. Danita Gullette
Some evidence indicates that the
shots fired by appellant in this killing may not have been fatal by
themselves. Appellant said in his confession that he fired “not that
many” shots at Gullette. The two bullets recovered from Gullette's
body were fired from two different guns, which means appellant shot
her at least once, but it is unknown which gun he fired. The coroner
stated that only one of Gullette's wounds would have been immediately
fatal by itself.
Nonetheless, the coroner testified that Gullette
died of “multiple” gunshot wounds. His testimony supports an inference
that appellant's shots at least contributed to Gullette's death. Thus,
we hold that the evidence was sufficient to prove that appellant was a
principal offender in the Gullette murder. See Holsemback v. State (Ala.Crim.App.1983),
443 So.2d 1371, 1381-1382; Cox v. State (1991), 305 Ark. 244, 248-249,
808 S.W.2d 306, 309; People v. Bailey (1996), 451 Mich. 657, 676-678,
549 N.W.2d 325, 334.
D. Kathie Henderson
Finally, appellant contends that the state failed
to prove the attempted aggravated murder of Kathie Henderson. However,
appellant was never charged with that crime. Only Counts Twelve and
Fourteen of the indictment charged appellant with attempted aggravated
murder. The bill of particulars shows that those counts related to the
attempted aggravated murders of Pettus and Thompson, respectively. The
only count charging appellant with a crime against Henderson was Count
Eight, which charged aggravated robbery -not aggravated murder. We
overrule all aspects of appellant's sixth proposition of law.
III Suppression Issues
On December 26, 1992, appellant was arrested. At
the police station, he was taken to an interrogation room, where he
sat for about three hours, until Detectives Tom Lawson and Wade Lawson
arrived. Tom Lawson administered Miranda warnings. Appellant stated
orally that he understood his rights. After the warnings were
completed, appellant agreed to answer questions and signed a Dayton
Police Department waiver form to signify that he understood his rights
and was willing to answer questions. He answered questions for forty-five
minutes. After that, the detectives recorded appellant's statement on
videotape. The next day, the detectives re-advised appellant of his
rights and interviewed him again.
In his fifth proposition of law, appellant claims
that the trial court should have suppressed his confessions of
December 26 and 27, 1992, because the state did not prove that his
waiver of Miranda rights on December 26 was voluntary, knowing, and
Voluntariness is a legal question
for a reviewing court to determine independently. See, e.g., Beckwith
v. United States (1976), 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48
L.Ed.2d 1, 8. However, this court must defer to the trial court's
factual findings, if those are supported by the record. See, e.g.,
State v. Wilson (1996), 74 Ohio St.3d 381, 390, 659 N.E.2d 292, 303.
Appellant argues that police misconduct, combined
with his own intoxication and “psychological deficits,” rendered him
unable to voluntarily waive his rights. He claims that, on the day of
his arrest, he ingested two fifths of wine, eighty ounces of beer, and
several pills (Valium, Xanax, and Dalmane). He claims that, despite
his repeated requests, police denied him permission to use the
bathroom for seven hours on December 26, until they were through
As to police misconduct and intoxication,
appellant's claims are based wholly upon his own self-serving
testimony at the suppression hearing. However, appellant's testimony
was contradicted by several Dayton police officers. The trial court
accepted the police testimony as true and found that appellant's
testimony was not credible.
The court specifically rejected appellant's
testimony that he was intoxicated. The court noted that appellant had
displayed a “lucid memory” in his own testimony. Moreover, appellant
was driving Henderson's car when he was arrested. The trial court
pointed out that, if appellant “had ingested the amount of wine and
pills which he claims, * * * he would be unconscious and certainly not
able to operate a motor vehicle.”
Based on police testimony and appellant's
videotaped confession, the court found that appellant appeared
“normal, alert * * * lucid and oriented”; that he “was in full command
of his senses” and “aware of the seriousness of the charges”; and that
he showed no signs of intoxication.
Moreover, the trial court found, contrary to
appellant's testimony, that appellant was permitted, at his request,
to use the bathroom before the December 26 interrogation. This finding
was supported by the testimony of Detective Sergeant John Huber and
Patrolman Herb Rogers, who escorted appellant to the bathroom about
one-half hour after he was brought in. Also, Detective Wade Lawson
testified that he permitted appellant to use the bathroom during his
Since the hearing record supports the trial court's
findings of fact, we are bound thereby. Thus, to the extent
appellant's arguments rest on his own testimony, which the trial court
disbelieved, they are invalid. See State v. Otte (1996), 74 Ohio St.3d
555, 562, 660 N.E.2d 711, 719.
Appellant also claims that his waiver was not
knowing and intelligent. On this issue, appellant relies upon the
testimony of Dr. Eugene S. Cherry, a psychologist. Dr. Cherry felt
that appellant's waiver was not knowing and intelligent because the
Dayton Police waiver form contains only one signature line. By signing,
the suspect both acknowledges understanding of his rights and waives
them. Because appellant is a “passive, dependent” personality, Cherry
felt appellant could not be assumed to have understood his rights
unless someone “required [him] to actively assert his understanding *
* * .” To ensure that appellant really understood his rights instead
of just going along, Cherry felt the police should have had appellant
acknowledge his rights separately from waiving them.
Here again, however, the trial court rejected Dr.
Cherry's testimony. The court had ample grounds to do so; Cherry
admitted his opinion was “really not well established.” Moreover,
Cherry assumed that appellant's claim of intoxication was true; that
claim was ultimately rejected by the trial court. Since we cannot
second-guess the trial court's factual findings, appellant's reliance
on Cherry's testimony is misplaced. Appellant's fifth proposition of
law is overruled.
In his tenth proposition of law, appellant claims
the testimony of Henderson, identifying appellant as the man who
pointed a gun at her on December 26, was tainted by an improper
photographic lineup and should have been suppressed. See Neil v.
Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.
We note that, even if appellant were to prevail on
this issue, Henderson's testimony was relevant only to Count Eight,
which charged appellant with aggravated robbery for stealing
Henderson's car at gunpoint. Although appellant seems to contend
otherwise, this issue does not affect his death sentences.
Henderson had described her
assailant as having a “box” haircut. Appellant was the only suspect in
the photo lineup with such a haircut. Appellant argues, with some
persuasiveness, that it was unnecessarily suggestive to arrange a
lineup with only one distinctive box haircut in it.
The state argues that, even if the lineup was
suggestive, Henderson's identification of appellant was reliable under
the totality of the circumstances, and hence admissible.
We find reliability to be a close question on the
facts of this case. However, assuming that the identification was
erroneously admitted, the error was harmless. Appellant confessed that
he stole a car at the BP service station on the morning of December
26. Mathews testified that she saw him do it. Appellant was actually
in Henderson's car when he was arrested. Moreover, the plates on that
car belonged to Wilkerson's Pontiac, which appellant also admitted he
stole; the Pontiac, in turn, was found with one of Henderson's plates
on it. On this evidence, it is clear beyond a reasonable doubt that
appellant would have been convicted on Count Eight even without
Henderson's identification. Appellant's tenth proposition of law is
IV Jury Waiver
A waiver of a defendant's jury trial right must be
voluntary, knowing, and intelligent. State v. Ruppert (1978), 54 Ohio
St.2d 263, 271, 8 O.O.3d 232, 236, 375 N.E.2d 1250, 1255. In his ninth
proposition of law, appellant argues that his jury trial waiver was
invalid because of his “propensity to acquiesce to authority figures.”
The trial judge conducted the following colloquy
with appellant: “THE COURT: First of all, do you understand that you
are entitled to have your case tried to a jury of twelve people? “MR.
KEENE: Yes, sir. “THE COURT: Do you understand that in that event you
could not be convicted of any one or more of these charges unless all
twelve jurors were to agree on your guilt? “MR. KEENE: Yes, sir. “THE
COURT: Now, you have the right under the statutes and the Constitution
of the State of Ohio to waive or give up that right by jury [ sic ]
and have your case tried to a court consisting of three judges. Do you
understand that? “MR. KEENE: Yes, sir. “THE COURT: Now, after your
discussion with your attorneys, do you understand that this is a
constitutional as well as a statutory right to trial by jury? “MR.
KEENE: Yes, sir. “THE COURT: And * * * you fully understand this right?
“MR. KEENE: Yes, sir. “THE COURT: And you have discussed this with
your attorneys on more than one occasion, I'm sure. Is that right?
“MR. KEENE: Yes, sir. “THE COURT: And after giving careful
consideration to it, is it your desire to waive-and again by that I
mean give up your right to trial by jury and proceed before a three-judge
panel? “MR. KEENE: Yes, sir. “THE COURT: Do you understand that the
panel will consist of the Court-this Court * * * and two other judges
to be designated by the Chief Justice * * * ? “MR. KEENE: Yes, sir.”
Appellant signed a jury waiver in open court. The trial judge then
continued: “THE COURT: Before the Court accepts these waivers, Mr.
Keene, has anyone promised you anything in order to get you to give up
that right? “MR. KEENE: No, sir. “THE COURT: Has anyone threatened you
or otherwise brought pressure upon you, twisted your arm, to get you
to give up that right? “MR. KEENE: No, sir. “THE COURT: * * * I
understand, therefore, that it's under careful consideration,
consultation * * * with your attorneys that you feel it is in your
best interests to proceed in this manner? * * * “MR. KEENE: Yes, sir.”
Appellant claims that this colloquy, and the
written waiver that accompanied it, are insufficient to prove that he
voluntarily, knowingly, and intelligently waived his right to a jury
trial. Appellant bases this argument on Dr. Cherry's testimony from
the suppression hearing regarding appellant's “personality style.”
Cherry had testified that appellant was a “follower” and a “passive,
dependent type.” Therefore, Cherry believed, appellant could not be
assumed to have understood his rights unless someone “required [him]
to actively assert his understanding * * * .”
Based on Dr. Cherry's opinion, appellant argues
that the trial court should have conducted the colloquy so as to
require him to “actively assert his understanding” of his jury trial
right. Appellant claims that the trial court's “yes or no” questions
elicited mere “mechanical responses” that do not demonstrate a
genuinely knowing and intelligent decision on appellant's part.
Yet the trial court had already rejected Cherry's
testimony as ill-founded. Cherry's testimony, rejected by the trial
court, is simply not a sufficient basis for impeaching appellant's
Even if Cherry's opinion had been accepted,
appellant cites no precedent requiring a trial court to take a
defendant's individual “personality style” into account when inquiring
into the validity of his jury waiver. Indeed, a trial court may accept
a defendant's jury waiver without any such inquiry at all. “There is
no requirement for a trial court to interrogate a defendant in order
to determine whether he * * * is fully apprised of the right to a jury
trial.” State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464,
paragraph one of the syllabus. Accord United States v. Martin (C.A.6,
1983), 704 F.2d 267, 274. Appellant's ninth proposition of law is
V Evidentiary Issues
Appellant claims in his seventh proposition of law
that the state used “other acts” evidence to attack his character,
violating Evid.R. 404(B), which reads, “Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show that he acted in conformity therewith. It may,
however, be admissible for other purposes * * * .”
Appellant claims that the state erred by
introducing evidence involving Taylor's murder of Maddox. Appellant
had agreed to help Taylor rob Maddox, but there was no evidence that
he was involved in the murder, and he was not charged with any crimes
We agree that this uncharged crime was irrelevant.
However, we find the error harmless. Appellant confessed to the five
murders he was charged with. Evidence of his minor participation in
Taylor's scheme to rob Maddox could not have done much further damage
to appellant's character. Moreover, the prosecutor did not use the
evidence to show that appellant was a person of bad character. Finally,
the trier of fact was a three-judge panel. See State v. Post (1987),
32 Ohio St.3d 380, 513 N.E.2d 754.
Appellant also claims that evidence involving the
shooting of Wright was “other acts” evidence. But this crime was
clearly introduced for a valid purpose having nothing to do with
appellant's character. One of the death specifications for the
Cottrill-Washington murders alleged that the victims were killed
because they were witnesses to a crime-and Smith's shooting of Wright
was the crime they witnessed. Therefore, the state did not violate
Evid.R. 404(B) by proving that Smith shot Wright.
Woodson testified that he saw appellant shoot an
unidentified robbery victim, and that appellant told him about yet
another shooting. The defense did not object, so these issues are
waived. Appellant's seventh proposition of law is overruled.
Appellant's sixteenth proposition of law reargues
issues raised in his seventh proposition of law with regard to
Woodson's testimony. Appellant's sixteenth proposition of law is
In his eleventh proposition of law, appellant
argues that the state introduced “victim impact” evidence in the guilt
phase, where such evidence is inadmissible. See, e.g., State v. Tyler
(1990), 50 Ohio St.3d 24, 553 N.E.2d 576. However, appellant objected
to only one of the alleged errors.
Over objection, Gullette's friend, Angela Martin,
testified that she had a close relationship with Gullette and that
they borrowed each other's clothes. However, the panel properly
overruled the objection. Gullette had borrowed Martin's jacket the
night she was killed; that was the same jacket stolen from Gullette,
and Martin identified it. Martin's relationship with Gullette explains
how Martin could identify the jacket and why Gullette was wearing it.
Thus, it was relevant for a nonvictim-impact purpose.
As to other alleged “victim impact”
testimony, appellant did not object, so these issues are waived. We
overrule appellant's eleventh proposition of law.
In his seventeenth proposition of law, appellant
argues that Gullette's Fila sneakers should have been excluded due to
the state's failure to prove an unbroken chain of custody. However,
the state was not required to prove a perfect, unbroken chain of
custody. The break identified by appellant was minor. We find no error
in the admission of the sneakers. (The alleged error would be harmless
in any event. Appellant confessed to shooting Gullette while robbing
her, and specifically described to police how Smith stole Gullette's
sneakers after forcing her to take them off.) Appellant's seventeenth
proposition of law is overruled.
In capital cases, gruesome photographs are
inadmissible if their probative value is outweighed by the danger of
unfair prejudice, or the photos are repetitive or cumulative. See, e.g.,
State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267. Appellant
argues in his eighteenth proposition of law that State's Exhibits 117,
118, 119, 138, 139, 140, and 148, which are autopsy slides, were
unfairly prejudicial and/or cumulative. However, appellant did not
object to these slides at trial, so this issue is waived. We overrule
appellant's eighteenth proposition of law.
VI Sentencing Issues
A. Sentencing Opinion
In his second proposition of law, appellant argues
that the three-judge panel failed to conduct a proper sentencing
analysis. Appellant argues that the panel erred by referring to “the
cold and calculated plans that were developed, the deliberate
execution of those plans and the manner and means by which five people
were killed * * * .” Appellant claims that these were “non-statutory
aggravating circumstances” and are unconstitutionally vague under
Maynard v. Cartwright (1988), 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d
372, and Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64
However, the panel's opinion recited the specific
statutory aggravating circumstances of which appellant was convicted.
There is no indication that the panel believed the “calculated,”
“deliberate” nature of these murders or the “manner and means” of
their commission were aggravating circumstances. See, e.g., State v.
Moreland (1990), 50 Ohio St.3d 58, 69, 552 N.E.2d 894, 905. Rather,
the panel was explaining why the aggravating circumstances outweighed
the mitigating factors. See State v. Stumpf (1987), 32 Ohio St.3d 95,
512 N.E.2d 598, paragraph one of the syllabus.
Appellant also argues that the trial court weighed
a statutory aggravating circumstance, R.C. 2929.04(A)(3), “that did
not exist in this case.” Appellant was found guilty of an (A)(3)
“escaping detection” specification and an (A)(7) felony-murder
specification as to each of the Wilkerson aggravated murder counts.
However, the panel merged the (A)(3) specifications into the (A)(7)
Later in its opinion, the panel wrote, “The panel
having previously found the Defendant guilty of specifications under
R.C. 2929.04(A) (3), (5), (7) and (8), it is necessary to address all
mitigation circumstances developed by the evidence * * * .” (Emphasis
Appellant argues that this meant the panel was
weighing the (A)(3) specifications-which, having merged with the
(A)(7) specifications, should not have been weighed. We disagree. On
its face, the quoted sentence says nothing about weighing or
considering the (A)(3) specifications. Rather, the panel was simply
reciting the specifications of which it had found appellant guilty.
Only a few pages earlier, the panel had stated that the (A)(3)
specifications merged into the (A)(7) specifications. It cannot be
rationally believed that the panel forgot about that and weighed the
Appellant's Eighth Amendment vagueness claim lacks
merit. See Tuilaepa v. California (1994), 512 U.S. 967, 971-975, 114
S.Ct. 2630, 2634-2636, 129 L.Ed.2d 750, 759-761; State v. Gumm (1995),
73 Ohio St.3d 413, 417-418, 653 N.E.2d 253, 260.
In State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d
895, paragraph three of the syllabus, this court held, “Only the
aggravating circumstances related to a given count may be considered
in assessing the penalty for that count.” Appellant claims that the
panel weighed all the aggravating circumstances collectively against
the mitigating factors, rather than assessing the penalty for each
individual count separately as Cooey requires.
The sentencing opinion states, “In
conclusion, after fully and carefully considering all the evidence
presented, * * * we unanimously find * * * that the aggravating
circumstances found with respect to each aggravated murder count
outweigh the several mitigating factors * * * .” (Emphasis added.)
The “with respect to each” language suggests that
each count was evaluated separately. If any ambiguity remains, the
verdict forms clarify it. The panel signed a separate verdict for each
victim. The verdict on Count Four states, “We do find that the
aggravating circumstances in the aggravated murder of Joseph Wilkerson
outweigh the mitigating circumstances [ sic].” (Emphasis added.) The
same language is used with respect to Counts Six (Gullette), Ten
(Abraham), Seventeen (Cottrill), and Twenty (Washington). Thus, as to
each individual aggravated murder, the panel made a specific finding
that the aggravating circumstances present with respect to that
aggravated murder outweighed the mitigating factors.
Finally, as part of his second proposition of law,
as well as in his twenty-fifth proposition of law, appellant argues
that the panel incorrectly believed that the death penalty was
mandatory. The opinion states, “In conclusion * * * we unanimously
find beyond a reasonable doubt that the aggravating circumstances
found with respect to each aggravated murder count outweigh the
several mitigating factors established by a preponderance of the
evidence. Following these conclusions, the law of this State requires
the imposition of the death penalty * * * .” (Emphasis added.)
Clearly, the panel did not incorrectly believe that
the death penalty was mandatory. Rather, it correctly believed that,
having found aggravation to outweigh mitigation, it was required to
impose the death penalty. See State v. Lawson (1992), 64 Ohio St.3d
336, 349, 595 N.E.2d 902, 912. Appellant's second and twenty-fifth
propositions of law are overruled.
In his third proposition of law, appellant claims
that the death sentence should not have been imposed in this case.
Appellant argues that the mitigating factors outweigh the aggravating
circumstances so that the death penalty is inappropriate, and asks
this court to reverse the sentence of death. Our independent sentence
determination, infra, will resolve this issue.
B. Duplicative Aggravating Circumstances
In his fourth proposition of law, appellant argues
that Count Four was invalid because it charged him with murder during
a “burglary and/or robbery.” (Emphasis added.) However, he concedes
that he never raised this issue at trial. Consequently, it is waived.
There is no plain error, because appellant was separately convicted of
both aggravated burglary (Count One) and aggravated robbery (Count Two)
with respect to Wilkerson. Therefore, the outcome would not clearly
have been otherwise had the indictment been worded differently. See,
e.g., State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 197-198, 616 N.E.2d
Appellant argues that this alleged error is “plain
error per se,” and cannot be waived by lack of objection. We reject
this claim, which is inconsistent with our precedents holding that
similar alleged errors were waived.FN3 Appellant's fourth proposition
of law is overruled.
FN3. Appellant's claim is based on a misreading of
United States v. Beros (C.A.3, 1987), 833 F.2d 455, and State v.
Johnson (1989), 46 Ohio St.3d 96, 104, 545 N.E.2d 636, 644. In Beros,
the question of waiver and plain error never came up because “a
sufficient objection was made * * * to preserve [the duplicity] issue
for appeal.” 833 F.2d at 458, fn. 3; see, also, id. at 462-463.
Johnson does not discuss waiver or plain error at all with regard to
the duplicity issue. See 46 Ohio St.3d at 104-105, 545 N.E.2d at 644.
One of the specifications to Count Four alleged
murder during an aggravated burglary; another alleged murder during an
aggravated robbery. In appellant's thirteenth proposition of law, he
argues that if this court rejects his fourth proposition of law on the
ground that the aggravated robbery and aggravated burglary “were in
fact the same event,” then the aggravating circumstances based on them
should have merged into one. However, we have rejected appellant's
fourth proposition of law on other grounds. Consequently, appellant's
thirteenth proposition of law lacks merit.
C. Length of Deliberations
The record shows that the three-judge panel retired
to deliberate at 3:37 p.m. and returned with a sentencing decision at
4:55 p.m., one hour and eighteen minutes later. In his twenty-first
proposition of law, appellant claims that the panel completed its
deliberations too quickly. But he cites no authority for the
proposition that an appellate court may second-guess whether the trier
of fact deliberated long enough.
In his twenty-second proposition of
law, appellant claims that the panel actually returned at 4:40 p.m.,
not 4:55. It is undisputed that, pursuant to App.R. 9(E), appellant
filed a motion in the trial court to correct the record; in support,
he adduced an affidavit by trial counsel stating that the panel
returned at 4:40 p.m. The trial court denied the motion. Noting that
the record was made “contemporaneously,” the court declined to modify
it based on the year-old recollection of trial counsel. Appellant
argues that the trial court violated App.R. 9(E) by denying his motion.
App.R. 9(E) states in part, “If any difference
arises as to whether the record truly discloses what occurred in the
trial court, the difference shall be submitted to and settled by the
court and the record made to conform to the truth.” Thus, “it is
within the province of the trial court to resolve disputes about the
record on appeal.” State v. Schiebel (1990), 55 Ohio St.3d 71, 81, 564
N.E.2d 54, 66. Here, the trial court did resolve the dispute; it found
the year-old recollection of the former counsel for an interested
party insufficiently persuasive to impeach the stenographic record.
“Where it is supported by competent, reliable evidence, such ruling
will not be reversed by a reviewing court absent an abuse of
discretion.” Id. at 82, 564 N.E.2d at 67. Appellant's twenty-first and
twenty-second propositions of law are overruled.
In his eighth proposition of law, appellant claims
that Judge Robert Brown, who presided over the suppression hearing,
should have recused himself from the three-judge panel that tried the
During the suppression hearing, appellant testified
on his own behalf. On cross-examination, the prosecutor asked
appellant several questions relating to the facts of the charged
offenses. Judge Brown overruled a defense objection, noting that
appellant's testimony could not be used against him at trial. (See
Simmons v. United States , 390 U.S. 377, 394, 88 S.Ct. 967, 976,
19 L.Ed.2d 1247, 1259.) At one point defense counsel informed the
judge that “there is a potential of having a three-judge panel.” The
judge said, “In that event I'll remove myself.” Ultimately, the case
was indeed tried to a panel, but Judge Brown did not recuse himself
and sat on the panel.
Appellant never filed a motion for Judge Brown's
recusal. This failure alone would waive this issue. Furthermore,
appellant's written jury waiver, signed and filed while Judge Brown
was presiding, specifically states, “I * * * consent to be tried by a
Court to be composed of three Judges, consisting of the Judge
presiding at this time and two other Judges to be designated by the
Chief Justice * * * .” (Emphasis added.) We reject appellant's eighth
proposition of law.
VIII Prosecutorial Misconduct
In his fifteenth proposition of law, appellant
claims prosecutorial misconduct.
In guilt-phase closing arguments, the prosecutor
described the crimes as “brutal, heinous, violent,” and stated that
“only a person without regard for or concern for or appreciation of
the value of human life could commit” such crimes. But a prosecutor
may denounce the defendant's wrongdoing. See State v. Bissantz (1982),
3 Ohio App.3d 108, 113, 3 OBR 123, 129, 444 N.E.2d 92, 98.
The prosecutor described Edward Thompson as “one of
the best witnesses any of us has seen in quite awhile.” Appellant
claims the prosecutor was improperly “vouching” for Thompson's
credibility. However, the prosecutor's statement was not a voucher: it
neither implied knowledge of facts outside the record nor placed the
prosecutor's personal credibility in issue.
The prosecutor's allegedly improper
statement concerning Jones Pettus was not objected to, and any issue
was therefore waived.
Finally, the prosecutor stated that “we are left
here with those witnesses given to us by this defendant,” and the
prosecution “would have loved to have put on” Wilkerson, Gullette,
Abraham, and Cottrill as witnesses. We see nothing improper in this
Appellant further argues that the prosecutor
introduced “victim impact” evidence in the guilt phase. This claim,
which simply reargues appellant's eleventh proposition of law, was
waived at trial, and lacks merit.
Finally, appellant argues that the prosecutor made
improper comments during penalty-phase closing arguments. As appellant
did not object to any of the arguments to which he objects here, the
issue is waived. None of the alleged errors amounted to plain error.
Appellant is therefore not entitled to an adjudication on the merits
of his arguments in this regard.
In sum, appellant's fifteenth proposition of law is
IX Ineffective Counsel
In his nineteenth proposition of law, appellant
claims that his trial counsel rendered ineffective assistance. To
demonstrate ineffective assistance, an appellant must show that
counsel's performance fell “below an objective standard of reasonable
representation.” State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d
373, paragraph two of the syllabus. He must also demonstrate prejudice-
i.e., “a reasonable probability that, were it not for counsel's errors,
the result of the trial would have been different.” Id., paragraph
three of the syllabus. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland v.
Washington (1984), 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d
Appellant lists various objections he thinks his
counsel should have made at trial. However, he fails to show that any
of these omissions constituted ineffective assistance.
Appellant argues that his counsel should have moved
to dismiss Count Four, the felony-murder of Wilkerson, because the
averment was worded in the alternative (“[aggravated] burglary and/or
[aggravated] robbery”). However, failure to so move was nonprejudicial.
Appellant was also charged with murdering Wilkerson under Count Three
(prior calculation and design). Dismissal of Count Four would have
left Count Three intact, and the panel ultimately found appellant
guilty on that count. Thus, dismissal would have meant only that
appellant would have been sentenced on Count Three instead of on Count
Appellant also argues that counsel should have
requested the court not to consider Count Four in the penalty phase,
because of the “and/or” language. However, by then- after Count Three
had been merged into Count Four-it was too late to make such a request,
which would have provoked justifiable charges of “sandbagging.”
Appellant's other claims also fail. It was not
deficient for appellant's counsel to forgo a double jeopardy claim
that was inconsistent with binding precedent. See, e.g., State v. Moss
(1982), 69 Ohio St.2d 515, 23 O.O.3d 447, 433 N.E.2d 181, infra. Nor
was it deficient performance not to request Judge Brown's recusal just
because he presided over the suppression hearing. See State v. Gillard
(1988), 40 Ohio St.3d 226, 229, 533 N.E.2d 272, 276; cf. Withrow v.
Larkin (1975), 421 U.S. 35, 56, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712,
Declining to interrupt the
prosecutor's argument with objections, or failing to object to certain
evidence, was not deficient performance, especially in a bench trial.
“A trial is not a law-school examination. * * * [N]o one will reward
you for making every possible objection.” McElhaney, Clutter
(Mar.1991), 77 A.B.A.J. 73. See State v. Campbell (1994), 69 Ohio St.3d
38, 43-44 and 52-53, 630 N.E.2d 339, 347 and 352-353; State v.
Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831, 837. Nor do
such failures undermine one's confidence in a verdict supported by
extensive forensic evidence, eyewitness testimony, and appellant's
Failing to argue that the death penalty violates
international law is not ineffective assistance, given the dearth of
legal authority supporting that argument. (See discussion of twenty-fourth
proposition of law, infra.)
Appellant has shown neither deficient performance
nor prejudice with respect to any of his ineffective-assistance
allegations. Therefore, his nineteenth proposition of law is overruled.
X Settled Issues
In his twelfth proposition of law, appellant claims
it is double jeopardy to sentence him for both felony-murder and the
underlying felony, as the trial court did with respect to the
Wilkerson, Gullette, and Abraham murders. However, felony-murder under
R.C. 2903.01(B) is not an allied offense of similar import to the
underlying felony. See, e.g., State v. Moss (1982), 69 Ohio St.2d 515,
520, 23 O.O.3d 447, 450, 433 N.E.2d 181, 186; State v. Bickerstaff
(1984), 10 Ohio St.3d 62, 66, 10 OBR 352, 355-356, 461 N.E.2d 892,
895-896; State v. Henderson (1988), 39 Ohio St.3d 24, 28, 528 N.E.2d
1237, 1242. That being the case, R.C. 2941.25 authorizes punishment
for both crimes, and no double jeopardy violation occurs. See Moss at
521-522, 23 O.O.3d at 451, 433 N.E.2d at 186-187, and paragraph one of
the syllabus. Appellant's twelfth proposition of law is overruled.
In his twenty-third proposition of law, appellant
challenges the statutory definition of “reasonable doubt,” R.C.
2901.05(D). We have previously rejected his position, State v. Van
Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604, and reject it again
In his twenty-sixth proposition of law, appellant
raises constitutional challenges to the Ohio death penalty statutes.
We have repeatedly rejected each of appellant's arguments, and
summarily overrule them here. We also overrule appellant's twentieth
proposition of law, which reargues issues raised in his fourth and
sixth propositions of law, supra.
Appellant's twenty-fourth proposition of law raises
questions of international law, which appellant did not raise at trial.
They are thereby waived, and appellant's twenty-fourth proposition of
law is overruled.
XI Independent Sentence Review and
Having affirmed appellant's aggravated-murder
convictions, we now must independently determine whether the evidence
supports the aggravating circumstances, whether the aggravating
circumstances outweigh the mitigating factors beyond a reasonable
doubt with respect to each murder, and whether the death sentences are
proportionate to those affirmed in similar cases.
After merger, Wilkerson's murder had three
aggravating circumstances: course of conduct, aggravated robbery, and
aggravated burglary. Cottrill's murder and Washington's murder each
had three aggravating circumstances: course of conduct, kidnapping,
and witness murder. Gullette's murder and Abraham's murder each had
two aggravating circumstances: course of conduct and aggravated
We find that the evidence supports each of these
aggravating circumstances. All specifications were proven by
appellant's confession, by strong physical evidence, and by the
testimony of such eyewitnesses as Pettus, Thompson, Woodson, and
In weighing aggravation against mitigation, we note
that the penalty for each aggravated murder must be assessed
separately; the aggravating circumstances attached to a given count
may be considered only with respect to that count. Cooey, paragraph
three of the syllabus.
Appellant was nineteen years old at the time of the
murders and appears to have been relatively immature. His youth is
entitled to some weight under R.C. 2929.04(B)(4). The trial court
found that appellant lacked a significant history of criminal
convictions or delinquency adjudications. This factor is entitled to
weight under R.C. 2929.04(B)(5).
Dr. Robert Smith, a psychologist,
testified that appellant has a “passive-aggressive personality
disorder.” He also diagnosed appellant with post-traumatic stress
disorder (“PTSD”). Smith believed that appellant could adjust well to
prison with support and counseling. In the county jail, appellant had
a good disciplinary record and socialized with other inmates.
Under R.C. 2929.04(B)(3), a mitigating factor
exists if “at the time of committing the offense, the offender,
because 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 law.” Appellant claims his personality disorder
and his PTSD qualify under this factor. We disagree. A personality
disorder is not a “disease or defect.” However, we accord this factor
some weight, as the trial court did, under R.C. 2929.04(B)(7) (the
With respect to Cottrill and Washington, appellant
argues that R.C. 2929.04(B)(1) applies, “Whether the victim of the
offense induced or facilitated it.” Appellant states that “there was
evidence that both Wendy Cottrill and Marvin Washington were involved
in criminal activities.” Even if this was true, they were not involved
in any of the crimes in this case. (They witnessed the shooting of
Wright, but did not participate in that crime.) It is clear that
Cottrill and Washington in no way “induced or facilitated” their own
Appellant did not play the role of a follower with
respect to Wilkerson's murder. Even if Taylor suggested the robbery,
appellant was the leader during the robbery and murder. He was the
only one who brought a gun. He ordered Taylor and Mathews to tie
Wilkerson up. It was appellant who decided to kill Wilkerson-Taylor
and Mathews were not in the bedroom when he fired the first bullet at
point-blank range into Wilkerson's heart. Appellant handed Taylor his
gun to fire a second bullet. When that gun would not fire, appellant
handed her another. When appellant, Taylor, and Mathews left,
appellant drove the stolen car. He suggested taking the car to Detroit
to sell it, and he told the others not to say anything to Cottrill and
As for the other murders, it is true that appellant
did not instigate them. He did not begin shooting in the mini-mart
robbery until Smith did. Smith also suggested robbing Gullette. We
accord these circumstances some mitigating weight. However, appellant
overstates his case by claiming that he “was not the principal
offender in most of the murders.” He was in fact a principal, as we
have defined that term- i.e., the actual killer, not a mere accomplice-in
four of the five murders.
Appellant was born in 1973. On the day appellant's
mother was released from the hospital after giving birth to him,
appellant's father left home. Appellant's mother married three times.
Her second husband, James Douglas, habitually abandoned the family,
disappearing for months at a time. This upset appellant, who “had
really gathered a love [for] Douglas.” When appellant's mother finally
divorced her second husband (after he had been gone for a year),
appellant was devastated. Her third husband drank to excess, gambled,
and inflicted unspecified verbal and physical abuse on appellant's
mother and her children.
Appellant developed a close relationship with his
older brother, Maurice. However, Maurice was shot to death in 1991.
Appellant became depressed and withdrawn and began to fail
academically, although his grades had been better before.
After his brother was killed, appellant moved to
California to live with his father. However, their relationship soured
because appellant's father felt appellant was behaving irresponsibly.
Appellant's father ultimately threw appellant out of his house.
Appellant did display some remorse: he wept during
his confession. Retrospective remorse, however, is entitled to little
weight. Indeed, we are inclined to doubt the sincerity of appellant's
remorse, which slumbered while he murdered five people in succession,
and awoke only after his arrest.
We find that several mitigating factors exist here,
including appellant's youth, clean record, mental disorders, his
remorse and confession, and the repeated, traumatic loss of father
figures from his life.
Yet, we are faced with a defendant who murdered
five people in three days. The course of conduct specification is
common to all five murders, and it has great weight with respect to
each. And while his family life has been troubled, he has also had the
advantage of a hardworking, churchgoing mother and family. His mental
disorders are entitled to some weight, but they did not substantially
diminish his capacity to understand the criminality of his actions or
to choose between right and wrong.
The aggravating circumstances are strongest with
respect to the Cottrill-Washington murders. Murdering a witness to
prevent his or her testimony strikes at the heart of the criminal
justice system. Combined with the course of conduct and the kidnapping,
these crimes clearly merit the death penalty; beyond a reasonable
doubt, the aggravation outweighs the mitigation presented by appellant.
In the Wilkerson murder, the aggravating
circumstances are aggravated burglary, aggravated robbery, and course
of conduct. With respect to the two felony-murder factors, we find
especially noteworthy the cynical deception by which appellant and his
accomplices induced Wilkerson to allow them into his home. Moreover,
the mitigating factors with respect to Wilkerson's murder are weaker,
because appellant played the leading role in that crime. We find,
beyond a reasonable doubt, that the aggravating circumstances attached
to Wilkerson's murder outweigh the mitigating factors.
Gullette's murder combined aggravated robbery with
a course of conduct involving the murder of five people. In this case,
we conclude that these two aggravating circumstances outweigh the
mitigating factors beyond a reasonable doubt. Finally, Abraham's
murder has the same two aggravating circumstances as Gullette's. Again,
we find beyond a reasonable doubt that aggravation outweighs
Moreover, the death penalty for the Wilkerson,
Gullette, and Abraham murders is proportionate in comparison with
death sentences we have affirmed in cases combining multiple-murder
specifications with aggravated robbery and/or aggravated burglary
specifications. See, e.g., State v. Gillard (1997), 78 Ohio St.3d 548,
679 N.E.2d 276 (two victims); State v. Lorraine (1993), 66 Ohio St.3d
414, 613 N.E.2d 212 (nineteen-year-old defendant; two victims); State
v. Hawkins (1993), 66 Ohio St.3d 339, 612 N.E.2d 1227 (two victims);
State v. Montgomery (1991), 61 Ohio St.3d 410, 419, 575 N.E.2d 167,
174 (two victims; twenty-year-old defendant with “violent and unstable
family environment”); State v. Dickerson (1989), 45 Ohio St.3d 206,
543 N.E.2d 1250 (two victims; defendant proved diminished capacity).
Also, the death penalty for the Cottrill-Washington
murders is proportionate to State v. Lundgren (1995), 73 Ohio St.3d
474, 653 N.E.2d 304 (multiple murder and kidnapping). Indeed, we have
frequently affirmed death sentences in cases where multiple murder was
the sole death specification. See, e.g., State v. Williams (1997), 79
Ohio St.3d 1, 679 N.E.2d 646; State v. Kinley (1995), 72 Ohio St.3d
491, 651 N.E.2d 419; State v. Sowell (1988), 39 Ohio St.3d 322, 530
N.E.2d 1294 (one victim; one intended victim).FN4
FN4. This court did reject the death
sentence in the multiple-murder case of State v. Lawrence (1989), 44
Ohio St.3d 24, 541 N.E.2d 451. However, in Lawrence there were only
two murders, each aggravated murder count carried only one death
specification, and the mitigating factors were far stronger.
Accordingly, the judgment of the court of appeals
Keene v. Mitchell,
525 F.3d 461 (6th Cir. 2008). (Habeas)
Background: Following affirmance of multiple state
convictions, including aggravated murder and imposition of the death
penalty, 81 Ohio St.3d 646, 693 N.E.2d 246, defendant filed petition
for federal habeas relief. The United States District Court for the
Southern District of Ohio, Sandra S. Beckwith, Chief Judge, 2004 WL
3325797, denied petition, and appeal was taken.
Holdings: The Court of Appeals, Siler, Circuit
Judge, held that: (1) decision to pursue death penalty against African-American
defendant and not against white codefendant was not motivated by a
discriminatory purpose, and (2) even if pretrial identification of
defendant was unduly suggestive, the identification was reliable under
the totality of the circumstances. Affirmed.
SILER, Circuit Judge.
Marvallous Keene, an Ohio death row inmate, appeals
from the district court's denial of his petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254. Two issues were certified
for appeal: (1) whether Keene was denied equal protection when the
prosecutor allegedly selectively prosecuted him because he is African-American;
and (2) whether his due process rights were violated when a pretrial
identification procured by allegedly unduly suggestive procedures was
admitted into evidence at trial. We affirm the district court's denial
of Keene's habeas petition.
In 1992, Keene went on a crime spree and committed
multiple homicides. The details of his crime spree can be found at
State v. Keene, 81 Ohio St.3d 646, 693 N.E.2d 246, 250-52 (Ohio 1998).
He was indicted on eight counts of aggravated murder, six counts of
aggravated robbery, one count of aggravated burglary, one count of
burglary, two counts of kidnapping, and two counts of attempted
aggravated murder. Id. 81 Ohio St.3d 646, 693 N.E.2d at 251-52. The
first murder count carried six death specifications (course of conduct,
escaping detection, two aggravated robbery, two aggravated burglary),
the second murder count carried four death specifications (course of
conduct, witness-murder, two kidnapping), the third count carried
three death specifications (course of conduct, witness-murder,
kidnapping), and the fourth and fifth counts each carried two death
specifications (course of conduct, aggravated robbery). Id. All counts
carried a firearm specification. Id. 81 Ohio St.3d 646, 693 N.E.2d at
252. Keene waived his jury trial rights and a three-judge panel found
him guilty of all the charges. Id. Following the guilt phase, the
panel merged the aggravated murder charges and reduced the number of
those convictions to be considered in the sentencing phase to five. Id.
The panel imposed five sentences of death. Id. The convictions and
sentences were affirmed on direct appeal. State v. Keene, 1996 WL
531606, at *70 (Ohio Ct.App. Sept.20, 1996), aff'd, 81 Ohio St.3d 646,
693 N.E.2d at 267.
In 2000, Keene filed a petition for a writ of
habeas corpus in the district court pursuant to 28 U.S.C. § 2254. He
raised 30 claims of constitutional error, but the magistrate judge
reported that his arguments lacked merit and that his petition should
be denied. In 2005, the district court overruled Keene's objections
and adopted the magistrate judge's report and recommendations.
We review de novo the district court's denial of a
petition for a writ of habeas corpus. Cone v. Bell, 492 F.3d 743, 750
(6th Cir.2007). Keene's habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 because he filed
his petition after the effective date of the Act, April 24, 1996.
Whiting v. Burt, 395 F.3d 602, 609 (6th Cir.2005). An application for
a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d). Clearly
established Federal law refers to the holdings, as opposed to the
dicta, of the Supreme Court's decisions as of the time of the relevant
state-court decision. McCalvin v. Yukins, 444 F.3d 713, 719 (6th Cir.)
(citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000)), cert. denied, 549 U.S. 1002, 127 S.Ct. 510, 166
L.Ed.2d 381 (2006).
Equal Protection Claim
Keene first argues that his equal protection rights
were violated because the prosecutor for Montgomery County, Ohio,
sought the death penalty against him because he is African-American.
In support of this argument, he asserts that African-Americans
constitute 17 percent of the county's population but account for 64
percent of capital indictments. He points to a “factually similar
aggravated murder” case in which the prosecutor did not seek the death
penalty against three white males. He argues that the other adult
defendant in this case, Heather Matthews, who is a white female, was
similarly situated to him but was not charged with capital
specifications. The Ohio Supreme Court denied Keene relief on this
claim because it found that there was no evidence that similarly-situated
defendants could have been prosecuted but were not. Keene, 81 Ohio St.3d
646, 693 N.E.2d at 253. The Ohio Supreme Court did not violate clearly
established Federal law when it denied him relief on this claim
because he was unable to make a showing of bias under McCleskey v.
Kemp, 481 U.S. 279, 292-93, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); and
Coleman v. Mitchell, 268 F.3d 417, 441-42 (6th Cir.2001).
The Ohio Supreme Court stated that Keene's argument
regarding the racial disparity: appears to rest on a presumption that,
if seventeen percent of the county's population is black, then blacks
must have committed about seventeen (or, at any rate, substantially
less than sixty-four) percent of potentially capital crimes. Appellant
argues that even to question that presumption would constitute
forbidden racial stereotyping. However, that cannot be correct, for
the Armstrong court itself rejected a presumption “that people of all
races commit all types of crimes.” Keene, 693 N.E.2d at 254. We find
this reasoning persuasive. A defendant who alleges an equal protection
violation bears the burden of proving the existence of purposeful
discrimination. United States v. Armstrong, 517 U.S. 456, 465, 116
S.Ct. 1480, 134 L.Ed.2d 687 (1996); McCleskey, 481 U.S. at 292, 107
S.Ct. 1756. In McCleskey, the Supreme Court held that a study
indicating that the death penalty in Georgia was imposed more often on
black defendants and killers of white victims than on white defendants
and killers of black victims failed to establish that any of the
decision makers in the habeas petitioner's case acted with
discriminatory purpose in violation of the Equal Protection Clause.
481 U.S. at 292, 107 S.Ct. 1756. Each decision to impose the death
penalty is made by a jury “unique in its composition” and “the
Constitution requires that its decision rest on consideration of
innumerable factors that vary according to the characteristics of the
individual defendant and the facts of the particular capital offense.”
Id. at 294, 107 S.Ct. 1756. Thus, in Coleman, we rejected a habeas
petitioner's equal protection challenge based on a study that found a
racial discrepancy between the African-American population in Ohio (9
percent) and African-American representation on Ohio's death row (49
percent) because the petitioner could not make a showing of
discrimination specific to him under McCleskey. Coleman, 268 F.3d at
441. Like the habeas petitioner in McCleskey, Keene “offers no
evidence specific to his own case that would support an inference that
racial considerations played a part in his sentence.” 481 U.S. at
292-93, 107 S.Ct. 1756.
Keene's argument that the prosecutor did not seek
the death penalty against similarly-situated white defendants has no
merit. In addition to showing a discriminatory purpose, an equal
protection claimant must show that a prosecutorial policy had a
discriminatory effect. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480. To
establish a discriminatory effect in a race case, the claimant must
show that similarly-situated individuals of a different race were not
prosecuted. Id. There were significant differences between Keene's
prosecution and the allegedly similar case where the prosecution did
not seek the death penalty against three white defendants.
Three white men, Elofskey, Howe, and Polson, robbed
and murdered two men under the guise of providing sexual favors in
exchange for money. State v. Howe, 1994 WL 527612, at * 1-2 (Ohio
Ct.App. Sept.30, 1994). These defendants were accused of murdering two
individuals, while Keene had five murder convictions that the panel
considered at sentencing. Elofskey and Polson agreed to plead guilty
and cooperate with the prosecution by testifying against Howe. Id. at
* 1. Keene and Howe are not similarly situated because the evidence
against Howe was much weaker than the evidence against Keene. The jury
acquitted Howe for one of the two murders for which he was charged. Id.
at *3. Moreover, unlike Keene, Howe was acquitted of the firearm
specifications attached to all of the charges against him. Id. Thus,
Keene was not similarly situated to Elofskey, Polson, or Howe.
Keene argues that his co-defendant, Matthews, is
similarly situated to him and the prosecutor's decision not to seek
the death penalty against her shows the prosecutor's racial bias.
However, Mathews is not similarly situated because, unlike Keene, she
was not the triggerman for any of the murders. Keene, 693 N.E.2d at
254. She was charged with only two of the murders and, while she
participated in those murders, there was “no clear evidence” that she
“actually intended” the deaths of the two victims. Id. In contrast to
Mathew's relatively minor role in only two of the murders, Keene was
the triggerman in four out of the five aggravated murders. Id. 81 Ohio
St.3d 646, 693 N.E.2d at 253. Keene's equal protection rights were not
violated because he has not demonstrated that the prosecutor's
decision to pursue the death penalty against him was motivated by a
discriminatory purpose and he has not shown a discriminatory effect.
Keene argues that his due process rights were
violated when a pretrial identification procured by unduly suggestive
procedures was admitted into evidence at trial. From two sheets of
police photographs, Kathie Henderson identified Keene as the man who
stole her car from her at gunpoint. She testified that she did not
recall giving a description of the man to the police. She later
testified that she told the police that the man “had a hairstyle like
the boy in the movies-the box, squared hair, you know.” She picked
Keene from the photo sheets but no other person in the photo sheets
had a box haircut.
The Ohio Supreme Court and the district court found
that even if the identification procedure was unduly suggestive, any
error was harmless. We agree. The admission of the pretrial
identification did not violate clearly established Federal law. “The
Supreme Court has held that an identification violates a defendant's
right to due process where the identification procedure was so
unnecessarily suggestive as to run the risk of irreparable mistaken
identification.” Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir.2005)
(citing Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d
401 (1972)). However, we consider “the reliability of the
identification in determining its admissibility; if an identification
is reliable, it will be admissible even if the confrontation procedure
was suggestive.” Carter v. Bell, 218 F.3d 581, 605 (6th Cir.2000) (citing
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140
(1977)). We consider the totality of the circumstances to determine
whether an identification is reliable. Howard, 405 F.3d at 472. In
considering the totality of the circumstances, we pay special
attention to five factors. Id. First, we consider the opportunity of
the witness to view the defendant at the initial observation, second
we consider the witness' degree of attention, third we consider the
accuracy of the witness' prior description of the defendant, fourth we
consider the level of certainty shown by the witness at the pretrial
identification, and finally we consider the length of time between the
initial observation and the identification. Carter, 218 F.3d at 605 (citing
Biggers, 409 U.S. at 199-200, 93 S.Ct. 375). We must weigh these
factors against the corrupting effect of the suggestive identification.
Howard, 405 F.3d at 472.
Even if the identification was unduly suggestive,
it was reliable under the totality of the circumstances. First,
Henderson had ample opportunity to view Keene at the initial
observation. We are more likely to find an identification reliable
when the witness was able to view the assailant with a heightened
degree of attention, as compared with disinterested bystanders or
casual observers. See Haliym v. Mitchell, 492 F.3d 680, 705 (6th
Cir.2007). Henderson had ample opportunity to observe Keene because
they were separated only by the width of her vehicle as they stood
near a well-lit gas station. He asked her for a quarter and she looked
at him and informed him she did not have one. A few minutes later he
held her at gunpoint and stole her car, undoubtedly calling her
undivided attention to him. Second, she had reason to pay a high
degree of attention to him. After he asked for a quarter, Henderson
saw the man talking to a third person. The third person told the man
“If you're-do what you're going to do. If you're going to kill her,
come on.” The man who asked for the quarter walked back to Henderson's
car, pointed a gun at her, and said “You'll die today.” Henderson
looked at the man's face and paid special attention to his eyes. Third,
Henderson's prior description of Keene that she gave to the police was
accurate, although not very detailed. She testified that the man who
accosted her had a box style haircut, and Keene had such a haircut.
Fourth, she displayed a high degree of certainty at the pretrial
identification. Finally, the time period between the initial
observation and the identification was short. She identified Keene
from two sheets of photographs only two days after the incident.
Moreover, taking into consideration other
circumstances, Henderson's identification is reliable because there is
overwhelming evidence that Keene accosted Henderson at the gas station
and stole her car. Keene confessed to stealing a car at the gas
station on the morning in question. Keene, 693 N.E.2d at 258. Mathews
testified that she saw him do it. Id. Keene was in Henderson's car
when he was arrested. Id. Keene switched the plates on Henderson's car
with those of a car belonging to Joseph Wilkerson, whom Keene had
murdered. Id. When police found Wilkerson's car, it had Henderson's
plates on it. Id. Finally, we note that any error in admitting the
identification was harmless because the identification only related to
an armed robbery charge for stealing Henderson's car at gunpoint. Id.
The identification had no bearing on any of the counts for which Keene
received a death sentence. Id.
execution: 1,000th since ’76