{¶ 4} The facts taken in the light favorable to the state establish the following facts.

{¶ 5} Donna Roberts met Robert Fingerhut in Florida in 1983; they married, but were divorced soon thereafter. According to Roberts, the divorce was for financial and business reasons — i.e., that Fingerhut wanted to shelter and protect assets in case his business was sued or collapsed.

{¶ 6} The couple moved to Ohio and established a home on Fonderlac Drive in Howland Township, Warren, Ohio. Fingerhut bought two Greyhound bus terminals – one in Warren and one in Youngstown – and began operating them. Those assets and almost all others were listed in Roberts’s name.

{¶ 7} Despite the divorce, Fingerhut appears to have continued to treat Roberts as his wife, referring to her as such in many of his business dealings. Most people who dealt with Roberts and Fingerhut assumed that they were married. Roberts similarly maintains that, in her mind, she did not consider herself divorced because she and Fingerhut were a devout, loving couple.

{¶ 8} Notwithstanding her feelings for Fingerhut, at some point during that relationship, Roberts met Nathaniel Jackson and began an affair with him. The liaison was interrupted in 2001, when Jackson was incarcerated in the Lorain Correctional Institution. Upon his release, however, they were reunited.

{¶ 9} On December 6, 2001, Roberts reserved and paid for a Jacuzzi suite in Jackson’s name at the Wagon Wheel Motel in Boardman. Three days later, Jackson and Roberts spent the night in that room.

{¶ 10} Over the next several days, the pair were seen together at various places. A day or two before Fingerhut’s death, Frank Reynolds, then an employee of the Greyhound bus terminal in Youngstown, saw Roberts and Jackson kissing and talking with one another near the terminal before Fingerhut arrived for work. Earlier, Reynolds had overheard Roberts asking Fingerhut for $3,000. Fingerhut had refused. According to Reynolds, Roberts was nervous and shaking and gave Fingerhut “the dirtiest look.”

{¶ 11} On December 11, 2001, Greyhound bus driver Jim McCoy saw Fingerhut working at the Youngstown terminal at approximately 4:30 p.m. Fingerhut was the only person working that afternoon.

{¶ 12} Soon after seeing Fingerhut in the terminal, McCoy drove his bus to Warren. He saw Roberts and Jackson at the Warren terminal, and Jackson told McCoy, “[W]e’re trying to get out of here.” On December 11, a server at the Red Lobster restaurant in Niles waited on a couple she later identified as Roberts and Jackson. The two paid for their dinner at 6:43 p.m. and left the restaurant.

{¶ 13} Fingerhut left the Youngstown bus terminal around 9:00 p.m. on December 11, telling the security guard on duty that he was leaving early for the evening. Around 9:30 p.m., a neighbor observed Roberts driving her car very slowly on Old State Route 82 near their homes, even though no one else was on the road at the time.

{¶ 14} Later that night, Roberts went to the Days Inn in Boardman to reserve a room for the following week. She was alone and paced around the lobby. The room receipt indicates that she paid for the room at 11:33 p.m.

{¶ 15} At 12:01 a.m., December 12, 2001, Trumbull County authorities received a 911 call from Roberts, who was screaming hysterically that there was something wrong with her husband. Upon arriving at the home, police found Fingerhut’s body on the kitchen floor near the door to the garage.

{¶ 16} A Trumbull County forensic pathologist, Dr. Humphrey Germaniuk, observed Fingerhut’s body at the crime scene and later performed an autopsy. Fingerhut had sustained lacerations and abrasions to his left hand and head, as well as multiple gunshot wounds to his head, chest, and back. Dr. Germaniuk concluded that the gunshot to Fingerhut’s head was the cause of death.

{¶ 17} During the crime-scene search, police found a fully loaded .38- caliber revolver near Fingerhut’s body. A firearms expert with the Bureau of Criminal Identification and Investigation (“BCI”) later concluded that the bullets recovered from the home and Fingerhut’s body were fired from the same weapon, either a .38-caliber special or a .357 Magnum, but that none of the bullets had been fired from the revolver found near Fingerhut’s body.

{¶ 18} During the hours immediately following Roberts’s 911 call, police observed that her emotional state fluctuated. At times, she was calm and quiet, and at other times she was crying or screaming, “Oh, my Robert, my Robert.” Two detectives noticed that when police investigators talked extensively, they no longer heard Roberts shouting. When a detective checked on Roberts in her bedroom because she had been quiet, she began shouting again upon seeing him. One officer at the scene remarked that he “didn’t notice any tears coming from [Roberts’s] eyes” when she appeared to be crying.

{¶ 19} In this period of initial investigation, Roberts told police that she had left work at the Greyhound bus terminal in Warren at 5:30 that evening, had dined alone at a Red Lobster restaurant, and had then gone home. According to Roberts, Fingerhut called her and said he would be late coming home and suggested that she go shopping. Roberts said she had left her home at 9:00 p.m. and had gone to several stores. When she returned home shortly before midnight, she found Fingerhut lying on the floor, bleeding from the face. She also stated that her husband’s car was not at the house.

{¶ 20} Eventually, police arranged for Roberts’s brother to pick her up while they continued to secure the scene and collect evidence. Before Roberts left the house, Detective Sergeant Paul Monroe told Roberts that the house was a crime scene and that police needed to search the house and everything in it, including the garage and cars. Roberts allegedly replied, “Do whatever you have to do to catch the bastard.”

{¶ 21} At 3:38 a.m. that morning, police were still at the house investigating. The phone rang, and Detective Sergeant Monroe answered it. There was a pause, and then the caller hung up. Detective Monroe traced the call to Roberts’s cell phone.

{¶ 22} Around 10:00 a.m. that morning, Detective Monroe visited Roberts at her brother’s home. At that time, Roberts gave police written consent to continue searching the residence.

{¶ 23} Later, on the afternoon of December 12, Roberts met with Sergeant Frank Dillon and Detective Sergeant Monroe at the police station. Roberts described her “loving relationship” with Fingerhut but also stated that she and Fingerhut were a “cool couple” and that he “did his thing, she did hers.”

{¶ 24} She described Fingerhut as “go[ing] both ways” and said that he had a friend named “Bobby.” She recalled that about a week and a half before the murder, Fingerhut was acting kind of “nutty,” and she had thought the behavior was because of his relationship with Bobby.

{¶ 25} Roberts also stated that she had been having a sexual relationship with a man named Carlos for six months. She additionally indicated that she had a friend named Santiago whom she had tried to help, but that he had stolen money and a gun from her. When Detective Monroe asked Roberts whether she had relationships with anyone else, Roberts replied, “No, there’s nobody else. I told you everybody.”

{¶ 26} Monroe then asked her about a man named Nate Jackson, and Roberts said, “Yes, I forgot about him.” Roberts admitted that she had been dating Jackson for two years and that he had called her from prison and had exchanged letters with her. Roberts claimed that she had last seen Jackson on December 9, when she picked him up at Lorain Correctional Institution and had then left him in Youngstown at a house on Wirt Street. Roberts added that she had last spoken to Jackson over the telephone rather than in person on the morning of December 11.

{¶ 27} Detective Monroe asked Roberts whether she had a cell phone and whether he could look at it. Roberts searched her purse and said that she had left it at home. Monroe then told Roberts that a call originating from her cell phone had been placed tothe crime scene at 3:38 that morning. Roberts said, “Nate must have had the phone. He’s always borrowing it.”

{¶ 28} In the ensuing week and a half, police continued to investigate and learned that Jackson and Roberts had spent a night together at the Wagon Wheel Motel and that Roberts had registered at the Days Inn and had paid for one week’s rental.

{¶ 29} Police and a BCI agent located and retrieved evidence, including Jackson’s fingerprints, from the room at the Days Inn in which Jackson had stayed. Police also recovered a garbage bag in a dumpster at the motel that had come from Jackson’s room. That bag contained a bottle of peroxide, used bandages, and gauze with blood that was consistent with Jackson’s DNA profile.

{¶ 30} Police learned that Fingerhut had taken out two life insurance policies on his life, naming Roberts as sole beneficiary. The aggregate benefit of the policies amounted to $550,000.

{¶ 31} On December 12, police found Fingerhut’s abandoned vehicle in Youngstown, approximately three blocks from Wirt Street. A forensic specialist found blood on the driver’s side visor and on other areas inside the automobile. Subsequent scientific analysis determined that blood on the visor contained a mixture consistent with both Jackson’s and Fingerhut’s DNA profiles. Blood recovered from the trunk release inside the car contained a DNA mixture with a major profile that was consistent with Jackson’s DNA and a minor profile consistent with Fingerhut’s DNA. The frequency for Jackson’s DNA on the trunk release was one in 45 quintillion, 170 quadrillion in the Caucasian population, and one in 29 quadrillion, 860 trillion in the African-American population. Jackson is African-American.

{¶ 32} Cell-phone records indicated that a number of phone calls were made on December 11 between 9:45 p.m. and 11:44 p.m. from the cell phone that Roberts said Jackson had borrowed from her and a cell phone located in Roberts’s vehicle.

{¶ 33} Additional evidence implicated Roberts and Jackson in the murder. As noted previously, Roberts had admitted to police that she and Jackson had exchanged letters and telephone calls during his incarceration. During their initial search of the home, police discovered more than 140 letters and cards written by Jackson to Roberts, most of which were addressed to Roberts at a post office box in Warren.

{¶ 34} Police also found a brown paper bag with Jackson’s name on it in the trunk of Roberts’s car, which had been parked in the garage at their residence. The bag contained clothing and approximately 140 handwritten letters, dated between October and December 2001, sent by Roberts to Jackson.

{¶ 35} Passages from letters exchanged between Jackson and Roberts suggested strongly that there had been a plot to murder Fingerhut. Many of the letters described the couple’s physical relationship and plans for Jackson’s release, as well as references to how they would deal with Fingerhut once Jackson was out of prison.

{¶ 36} For example, in a letter from early October 2001, Jackson wrote Roberts:1 “[W]hy don’t you leave Robert an lets carry on with a world of our own? Or let me do what I was gonna do to him, because you know that – that was our little thing so you better not go an try to get know one else to do it, because I told you its getting done when I come home * * *.” Less than a week later, Jackson wrote Roberts: “Donna I got it already planned out on how we are gonna take care of the Robert situation? An baby its the best plan ever! Because Donna its now time that we really be together so that we can really see the true side of our love because I’m tired of not being able to be with you * * *.”

{¶ 37} Soon thereafter, Jackson again expressed his desire to be with Roberts and to be rid of Fingerhut: “Donna I don’t care what you say but Robert has to go! An I’m not gonna let you stop me this time. An Donna you know that I’ve always wanted to live my life with you an only you but everytime that I wanted to take care of the situation by myself you wouldn’t never let me. * * * Because you wouldn’t let me do what I wanted to do to make you happy an that was get rid of him! So Donna can I do this so that we can go on an live happy? An then maybe we can sell the house an move on to somewhere else in our own world. An I’m not gonna be happy until that happens!”

{¶ 38} Roberts responded to Jackson with her own letters. In one from mid-October 2001, she indicated her frustration over limits that Fingerhut apparently had imposed on her spending and her apparent agreement to Jackson’s plan for Fingerhut’s murder. She wrote, “You know you can always count on me — you always could. It’ll just be a little tougher now because he gives me $100 a week for everything and then makes me write checks to keep track of it all. And I haven’t been ALLOWED to use any of my 52 charge cards – emergency only. I am not used to living like this. I am used to having plenty of cash for whatever I want & buying everything I want. Maybe those days will return again soon. Do whatever you want to him ASAP. Amen.” Jackson replied, “An then after that you don’t ever have to worry about making know more excuses to him, because he will no longer be with us after 12-10-01 an then it’ll be me an you totally an completely * * *.” Within that same passage, Jackson drew a tombstone with the inscription, “Rest In Piss,” before continuing, “Hey Donna just think come 12-11- 01 you’ll be waking up to me or maybe we’ll give it a couple of days to let things look cool an then after the funeral baby when I come home I’m never leaving an we’re only doing it like that just to make it look good * * *. Alls I need is for my baby not to worry an leave everything else up to me.”

{¶ 39} Jackson’s subsequent letters further evinced the developing plan to deal with “the Robert problem.” Jackson wrote, “Yes I’m taking care of that the next night, because I told you I’m tired of living like this when I don’t have to. An after that will you get me a 2002 Cadillac Deville?” In that same letter, Jackson wrote: “An even if I gotta come to the house and shoot Robert in his fucking head you’re gonna be with me.”

{¶ 40} The letters also indicate a role for Roberts in the scheme. An October letter from Jackson reads, “Well I see now you know that I’m about my business when I get out as far as our little situation? An get me a size large leather gloves an see if you can find me a ski mask hat okay? An I need them handcuffs you have an its mandatory, so get them for me, because the way that I’m gonna do it is gonna be right okay?” About two weeks before the murder, Roberts wrote to Jackson: “I also went to 4 stores and finally found your ski mask & boxers & a pair of beautiful fleeced lined black leather gloves.”

{¶ 41} Though the words written in those letters were significant evidence of the planning of the murder, the state also marshaled the actual words spoken between Roberts and Jackson.

{¶ 42} Prison authorities at Lorain Correctional Institute routinely record telephone conversations of prisoners and maintain the recordings for at least six months. Eighteen phone calls between Roberts and Jackson were recorded electronically. Those recordings also reflect the plot to murder.

{¶ 43} For example, in a recorded conversation between Jackson and Roberts on October 25, 2001, the following colloquy took place:

{¶ 44} “[JACKSON]: I’ll be home to you. December 9th all the worries will be over baby.

{¶ 45} “* * *

{¶ 46} “[JACKSON]: The next day out, I’m goin to – I already got it in my mind, my mind made up. I’m goin to go ahead and do that the next day, okay. All right.

{¶ 47} “[ROBERTS]: Oh, I just wrote to you that I didn’t think that you really meant it.

{¶ 48} “[JACKSON]: What. My mind is made up. My mind made – I wrote it in my letters, you know what I’m saying, but you know, I don’t like to talk too much like that but when I come home, you know what I mean, it’s goin to be in full detail. Okay. I’m goin to let you know how I’m goin to do it and everything. I’m goin to do it for sure the next day.”

{¶ 49} In recorded phone conversations between Jackson and Roberts during November 2001, they continued to discuss what Jackson planned to do to Fingerhut. In a conversation on November 8, 2001, Jackson told Roberts that he wanted Fingerhut to see Roberts performing oral sex on Jackson before Fingerhut “goes away.”

{¶ 50} Two weeks later, Roberts worried about Jackson’s being apprehended for the murder of Fingerhut:

{¶ 51} “[JACKSON]: You know what I’m saying, the next day after. You know what I told you I wanted to do right?

{¶ 52} “[ROBERTS]: I’m afraid Nate.

{¶ 53} “[JACKSON]: What you, man.

{¶ 54} “[ROBERTS]: I can’t afford to lose you. * * * I can not lose you. Like I will kill myself.

{¶ 55} “* * *

{¶ 56} “[JACKSON]: Just forget about it man, * * * when a person, man, know what he’s doing, man, * * * that’s like jinxing, man. * * *

{¶ 57} “[ROBERTS]: But what was the story with the trunk and handcuffs, that’s too involved.

{¶ 58} “[JACKSON]: Just, just, just leave it alone, alright.

{¶ 59} “[ROBERTS]: It’s too much involved. Your gonna leave hair, your gonna leave prints, your gonna,

{¶ 60} “[JACKSON]: Leave it alone, man. Leave it alone, alright. * * * Come on man. This ain’t Perry Mason man.

{¶ 61} “[ROBERTS]: I don’t want to know anything about it ever.”

{¶ 62} On November 24, Jackson tried to reassure Roberts about his plan.

{¶ 63} “[JACKSON]: Man, we gonna * * * really talk when I come home, ok.

{¶ 64} “[ROBERTS]: OK.

{¶ 65} “[JACKSON]: Especially about our, that situation, man. You know.

{¶ 66} “[ROBERTS]: Yeah.

{¶ 67} “[JACKSON]: I mean, it just, you know, you get too nervous at times, that’s all the deal is.

{¶ 68} “[ROBERTS]: Yeah I know, it part of my nature.

{¶ 69} “[JACKSON]: And then you said DNA, the only way they can do a DNA is if they got the other, the person’s, you know what I’m saying. If they got the person and thehair cause they can’t just take no hair and say this is such and such hair. * * * [T]he laws that we got in the State of Ohio and the laws from everywhere else, * * * I mean they way different. * * *

{¶ 70} “[ROBERTS]: Really.

{¶ 71} “[JACKSON]: Hell yeah. We’ll, we’ll talk about it when I come home Donna. Ok, I don’t want to talk about it over the phone.”

{¶ 72} Around Thanksgiving 2001, Roberts and Jackson discussed DNA evidence, a “big 38” firearm, their reunification on the night after his release from prison and his stay in a hotel the week thereafter, and Roberts’s complete reliance on Jackson.

{¶ 73} On December 8, the day before Jackson was released from prison, Jackson and Roberts had one final recorded conversation. Roberts expressed misgivings about what Jackson was planning to do to Fingerhut, but Jackson told her, “I got to do this Donna. I got to.” Roberts told Jackson that she did not want to know about it. The following colloquy then took place:

{¶ 74} “[JACKSON]: Just consider it a done deal. Only thing I’m gonna need is one thing.

{¶ 75} “[ROBERTS]: What?

{¶ 76} “* * *

{¶ 77} “[JACKSON]: I just need to be in that house when he come home.

{¶ 78} “[ROBERTS]: Oh no.

{¶ 79} “* * *

{¶ 80} “[JACKSON]: Baby it ain’t gonna happen in the house. It ain’t gonna happen in the house man, I promise you.

{¶ 81} “* * *

{¶ 82} “[JACKSON]: I just need to be in there man. It ain’t gonna happen in the house man. I mean I ain’t gonna jeopardize that man.

{¶ 83} “[ROBERTS]: Well, let’s not talk about it now.

{¶ 84} “[JACKSON]: Ok. We’ll talk, we’ll, I’ll just wait until tomorrow.”

{¶ 85} In light of the accumulating inculpatory evidence and Roberts’s unpersuasive explanations for it, Jackson and Roberts became the prime suspects in Fingerhut’s murder. Detective Monroe then arranged for Roberts to call Jackson to ask him some prepared questions and for police to record the conversation. According to Detective Monroe, however, Roberts failed to ask Jackson the critical questions that police had instructed her to ask.

{¶ 86} On December 21, 2001, Roberts was arrested at her home for the murder of Robert Fingerhut. That same day, police raided a home on Wirt Street in Youngstown, and Jackson surrendered. At that time, Jackson had a bandage wrapped around his left index finger. A search of the Wirt Street home uncovered additional evidence. Included in that evidence was a pair of black leather gloves; the index finger of the left glove appeared to have been torn off, and there was a red substance on the glove near the tear.

{¶ 87} On December 28, 2001, a grand jury indicted Roberts on two counts of aggravated murder related to Fingerhut’s death. R.C. 2903.01(A) and (B). Both murder counts carried two death-penalty specifications: murder during an aggravated burglary and murder during an aggravated robbery. R.C. 2929.04(A)(7). The grand jury also indicted Roberts on separate counts of aggravated burglary and aggravated robbery, each carrying a firearm specification.

{¶ 88} At trial, the state presented numerous witnesses establishing the facts previously set forth. The defense presented no witnesses. The jury found Roberts guilty of aggravated murder and the other offenses as charged.

{¶ 89} At the mitigation hearing, Roberts waived the presentation of evidence except for a lengthy unsworn statement. The jury recommended – and the trial court imposed – the death penalty on Roberts.

Donna Roberts

Donna Roberts

Nathaniel Jackson