Filiaggi and Lisa Huff married in December 1991. Lisa filed for
divorce nine months later. The divorce was granted in February 1993.
A few months later, Lisa became engaged. Shortly
thereafter, she and her finace became repeated victims of telephone
harassment and vandalism. Filiaggi was charged with felony assault
upon Lisa's fiance when their two daughters were exchanged for
visitation. He was later charged with Intimidation and Vandalism to
Two days later, Filiaggi purchased a 9mm Luger
pistol, and took a $1,000 cash advance on his Visa card. He left six
to seven hundred dollars with his girlfriend, Tracey.
At 10:45 p.m., the Lorain Police Department
dispatcher received a call from Lisa stating that Filiaggi was at
her back door and was breaking into her house. Filiaggi broke down
the door and entered the house. Still carrying the telephone, Lisa
fled out the front door and into a neighbors house.
Filiaggi broke down his door as well, found Lisa
in a closet, told her "This will teach you to fuck with me," then
shot her twice. Wounded, Lisa ran to a bedroom, where she was shot
twice more, killing her.
Filiaggi fled to Lisa's stepfather's house and
attempted to shoot him as well.
State v. Filiaggi, 86 Ohio St.3d 230, 714 N.E.2d 867 (Ohio
1999). (Direct Appeal)
Steak, potato and cheese pirogies (stuffed dumplings), a baked
potato, dinner rolls, fresh vegetables, strawberry cheesecake and
"I know I flipped some worlds upside down. For me, it's fine, but
the state needs to learn this ain't the answer. This is no deterrent
to crime. Some are falsely convicted, railroaded. The state needs to
wake up. Maybe they will follow the Europeans. God is the only one
Ohio Department of Rehabilitation and
NAME: James J. Filiaggi
INMATE #: A311-180
CRIME: Aggravated Murder
COUNTY: Lorain County
December 13, 2006 - NEWS RELEASE
CLEMENCY HEARING SCHEDULED FOR DEATH ROW INMATE JAMES FILIAGGI
(Columbus) – The Ohio Parole Board will conduct a
death penalty clemency hearing for inmate James Filiaggi, # 311180,
on Thursday, January 25, 2007. The hearing will be held at the Adult
Parole Authority Office located at 1030 Alum Creek Drive, Columbus,
Ohio at 10:00 a.m.
Any media wishing to attend this hearing should
contact the Department of Rehabilitation and Correction (DRC) Public
Information Office no later than Friday, January 19, 2007, to
confirm attendance. Media attending the hearing should arrive at the
site no later than 9:45 a.m.
Inmate James Filiaggi was sentenced to death out
of Lorain County for the aggravated murder of Lisa Filiaggi. His
execution is scheduled for Tuesday, February 13, 2007 at the
Southern Ohio Correctional Facility in Lucasville, Ohio at 10:00
Ohio executes man who changed mind on appeals
By Jim Leckrone - Reuters News
Tue Apr 24, 2007
COLUMBUS, Ohio (Reuters) - A convicted murderer
who stopped appealing his death sentence but then changed his mind
and went to court five days ago was executed in Ohio on Tuesday
after the U.S. Supreme Court refused to step in. Officials at the
Southern Ohio Correctional Facility in Lucasville said James
Filiaggi, 41, was pronounced dead at 11:23 a.m. EDT 1523 GMT after
an injection of lethal chemicals.
In his final words, Filiaggi said goodbye to his
family and attacked capital punishment, saying "The state needs to
find out this is not the answer, this is no deterrent to crime. Some
are falsely convicted, railroaded. The state needs to wake up. Maybe
they will follow the Europeans. God is the only one who knows."
Filiaggi was convicted of killing his ex-wife,
Lisa, in January 1994. Police said he went to her home in Lorain,
Ohio, chased her into a neighbor's house, found her hiding in a
closet and shot her three times as she tried to flee again.
He had pleaded innocent by reason of insanity,
citing a bipolar disorder. In April 2006, a three-judge federal
appeals court panel upheld his conviction and death sentence and he
gave up further appeals. But last Friday he asked for a stay so he
could be included in litigation in Ohio which is challenging lethal
injection as cruel and unusual punishment as proscribed by the U.S.
His appeal was rejected by several lower courts
but his execution was then put on hold pending a ruling by the U.S.
Supreme Court. The high court issued a one-sentence denial on Monday
without comment, about 20 minutes after the execution was supposed
to have taken place. He died about an hour later.
It was the 14th execution in the United States
this year and the 1,071st since capital punishment was restored in
Filiaggi was given a meal of his choice Monday
night, choosing steak, potato and cheese pirogies (stuffed dumplings),
a baked potato, dinner rolls, fresh vegetables, strawberry
cheesecake and milk.
Murderer dies amid lethal-injection debate
By Alan Johnson - Columbus Dispatch
Wednesday, April 25, 2007
LUCASVILLE, Ohio -- It is impossible to know what
James J. Filiaggi felt as he was executed yesterday. But it's clear
that his seemingly peaceful death was unlike the sheer terror his
ex-wife faced 13 years ago as he dragged her into a neighbor's
bathroom and shot her execution-style with a 9 mm Luger pistol.
Filiaggi, 41, of Lorain, was declared dead at
11:30 a.m. at the Southern Ohio Correctional Facility near
Lucasville. But the fierce debate over the humaneness and
constitutionality of lethal injection lives on. "I know I flipped
some worlds upside down," Filiaggi said as he lay strapped to the
lethal-injection table in the small, windowless Death Chamber, where
a large clock on the wall is the dominant feature. "For me, it's
fine," he said. "But the state needs to learn this ain't the answer."
It was the answer for Ellen Jane Harris, who has
wanted Filiaggi dead since he killed her daughter, Lisa, on Jan. 24,
1994. "He was an animal going after his prey," Harris told reporters
after witnessing the execution. "I realize his death will not bring
my daughter back, but he has caused harm and pain to so many other
people over the years, both physical and emotional." Harris
acknowledged that while some people believe that lethal injection is
cruel, "I wish Lisa would have gone in such a peaceful manner."
Filiaggi's attorneys argued that the lethal
combination of three drugs masks but does not eliminate excruciating
pain, essentially torturing an inmate in the moments before death. A
national study released Monday was critical of the fact that most
states, including Ohio, do not adjust the amount of drugs
administered based on the size and weight of prisoners. Filiaggi was
6 feet tall and weighed 225 pounds.
The execution was set for 10 a.m. but was delayed
an hour for word on a final appeal to the U.S. Supreme Court, which
was rejected shortly before 11 a.m. Filiaggi was the first person
executed in Ohio during Gov. Ted Strickland's term. The 24 previous
executions, going back to 1999 when Ohio started enforcing the death
penalty again, occurred when Bob Taft was governor.
Described as "calm and compliant," the condemned
man did not sleep Monday night. He spent his final hours meeting
with family and friends at his cell-side or talking with them on the
phone. He rambled during his final two-minute statement, expressing
love for his two teenage daughters (who refused to attend the
execution) as well as three friends who watched him die.
Jeffrey Gamso, one of Filiaggi's attorneys and
the legal director of the American Civil Liberties Union of Ohio,
described the execution as "aggravated murder." He said the
execution was arbitrary and dependent on timing. Had Filiaggi
decided earlier to pursue his appeal, he would have joined nine
other inmates in a lawsuit challenging lethal injection, "and he'd
be alive right now."
Filiaggi was known as a "volunteer" because he
chose to waive some of his late-stage appeals. However, late last
week, he changed his mind and authorized Gamso to challenge
injection as unconstitutional cruel and unusual punishment. In a 96-hour
flurry, Filiaggi's appeals were rejected by four courts. Strickland
turned down two clemency requests, one of them on Monday.
Log records condemned inmate's last hours
Cleveland Plain Dealer
April 26, 2007
(AP) — The Ohio Department of Rehabilitation and
Correction has kept logs documenting condemned inmates' last hours
since resuming executions in 1999.
Some excerpts from the log for James Filiaggi,
executed Tuesday for the shooting death of his ex-wife ("I/M" is
prison shorthand for inmate):
9:31 a.m.: "2 team members and I/M Filiaggi
arrive at Death house."
11:20 a.m.: "Revision to special meal request: If
pierogies are approved, Inmate Filiaggi would like chopped onions on
top of them."
12:22 p.m.: "Warden telling him how visits will
4:37 p.m.: "I/M given clean pants and a smock for
his visitation period."
7:50 p.m.: "Visits are very emotional."
8:24 p.m.: "Visits have concluded for the day and
will resume in the morning."
10:59 p.m.: "I/M setting in chair talking on
6:21 a.m.: "Visits to begin."
6:58 a.m.: "Visit very quiet, very emotional."
7:11 a.m.: "All 3 laughing loudly."
8:04 a.m.: "Mom tells him she loves him."
8:51 a.m.: "I/M and visitors praying."
10:07 a.m.: "I/M continues to sit and write
10:23 a.m.: "Team Leader explains to I/M that U.S.
Supreme Court denied his stay."
11:01 a.m.: "Warden is approaching cell front to
read the death warrant."
11:10 a.m.: "Team is escorting I/M to death
11:23 a.m.: "Warden announces time of death."
11:28 a.m.: "Rev. Sims has entered chamber to
annoint body & pray."
11:40 a.m.: "Funeral director has possession of
Filiaggi sentenced to death
By Stephen Hudak - Cleveland Plain Dealer
Wednesday, August 2, 1995
James J. Filiaggi was sentenced yesterday to die
in the electric chair by the three-judge panel who found him guilty
of murdering his ex-wife on Jan. 24, 1994. He stared wide-eyed at
Judge Edward M. Zaleski who read the panel's verdict while his
family wept and clutched one another in a row behind him. Filiaggi,
30, said nothing.
Jane Yepko, the mother of murder victim, Lisa
Filiaggi, squeezed her husband, Delbert, so tightly his face turned
as red as a third-degree sunburn. Filiaggi's father, James, shouted
at her as she left the courtroom. "Now you put the children through
it again, Jane," he said, apparently referring to his granddaughters
who lost their mother and their custodial aunt, Anissa Huff, in a
matter of months. Huff was killed in a car accident last year.
Approached outside the courtroom, the elder
Filiaggi waved off reporters who were seeking an explanation, saying
he needed a few days to think. His family and his son's girlfriend,
Tracey Jones, left the courthouse on a fire escape, trailed by a
wake of reporters and photographers.
Defense lawyer James Burge said he suspected
frustration led to the father's outburst. "I'm sure he feels, as I
do, his son is truly ill," Burge said.
But Jane Yepko said justice finally had been
done. She also said she had done nothing to harm her grandchildren,
Alexis and Jasmin, who have been in the custody of their father's
parents for more than a year. "It was their son who murdered my
daughter. I did not pull the trigger," said Yepko, who did not
address the judges. "I did not raise their son."
Jonathan E. Rosenbaum, chief assistant prosecutor,
implored the panel to impose the death penalty, calling Filiaggi's
crime heinous and calculated. "He desired one thing and that was
revenge," Rosenbaum said.
Judges Zaleski, Frank J. Horvath and Kosma J.
Glavas were unmoved by a plea for mercy by Burge, who argued
Filiaggi was too ill to stop his rampage. They deliberated about two
Burge said Filiaggi lacked the chemical balance
to shake thoughts of Lisa sleeping with another man and his
daughters calling somebody else "Dad." Burge said on Mother's Day
1994, a psychiatrist finally prescribed an anti-depressant that
enabled Filiaggi to control his explosive moods.
The defense called jail nurses, a social worker
and a priest who testified that they noticed a calmer, gentler
Filiaggi emerge after taking the medication. Burge asked the judges
to spare Filiaggi the electric chair. "I can ask the court for mercy.
Mercy, I suggest, for Jim Filiaggi's children but probably selfishly
mercy also for me," the defense lawyer said.
Burge told the panel "I don't know if I could
survive" if Filiaggi were put to death and the defense's medical
theory was one day proved to be fact. If sentenced to prison,
Filiaggi, 30, would have to serve 71 years behind bars before he
made his first appearance before the state parole board. "It goes
without saying he is going to die in prison," Burge said of Filiaggi.
"The question is whether he is going to die in prison by your will
or, as with most of us, by the will of another."
Rosenbaum, however, told the judges they ought to
reject the defense's unproven medical theory and pick a punishment
that fit the crime. "I submit to you, respectfully, that your duty
is clear," he said.
Although the judges set an execution date, it is
largely symbolic because of automatic appeals that will be taken up
by the state's public defender. The date is Jan. 24, 1996, two years
from the day that Filiaggi chased his wife to a neighbor's house and
shot her twice at close range.
Sheriff's deputies said Filiaggi would be
transported today from the County Jail to the Lorain Correctional
Institution, an inmate reception center in Grafton. He is expected
to join Ronald Post, John Simko Jr., Daniel Wilson and Freddie
McNeill as the other Lorain County residents on death row at the
Mansfield Correctional Institution.
THE OTHER VICTIMS: Filiaggi shattered lives
By Stephen Hudak - Cleveland Plain Dealer
July 24, 1995
Every morning, when Eric Beiswenger brushes his
teeth, he sees the love note Lisa Filiaggi taped inside his medicine
cabinet two years ago. "I don't want to leave," Lisa, 27, scribbled
before hurrying off to work while he slept, "but always remember
that I love you very much!!"
Beiswenger can't bring himself to take it down or
pack away her toothbrush and clothes or remove her photographs from
his mantle or throw away the notebook in which she was planning
their wedding. More than 18 months after Lisa's life was taken by
her ex-husband, James J. Filiaggi, Beiswenger, 30, is struggling to
get on with his own. "I lost my future. All my plans, all my dreams
were shattered, and Lisa's too," he said on his front porch, their
portrait cradled in his arms.
Filiaggi, 30, was convicted Wednesday by a three-judge
panel of a series of felonies, the most serious of which was the
slaying of his ex-wife on Jan. 24, 1994. Beiswenger said justice
prevailed over the man who ruined his life.
Beiswenger and Lisa Filiaggi met in 1989 and
became reacquainted in the summer of 1992 when Beiswenger walked
into the Amherst salon where Lisa worked, and she cut his hair. She
was pregnant with her second child but unhappy, telling him she was
getting a divorce. He asked her if she might like to go out sometime.
They began dating in November 1992, shortly after
the birth of her second child and about three months before her
divorce was final. But it seemed Filiaggi was never far away. On the
phone, in the parking lot, in the driveway. "But she was the right
person, definitely the right person for me," Beiswenger said. "She
was always smiling. Never, not even once, when he was hassling her,
did she take anything out on me, and she could still smile."
They went kayaking in Cancun, canoeing on the
Mohican River. They took Lisa's girls to the park, to the zoo, to
Sea World. Beiswenger said he wanted to adopt them. Beiswenger, a
chemical operator at the B.F. Goodrich Co. in Avon Lake, asked Lisa
and the girls to move in with him, and she began to make wedding
But there were hang-up phone calls, glue in the
door locks and bottles, rocks and jars of motor oil thrown through
the window of their home in Lorain. Beiswenger suspected Filiaggi
was to blame for it all, and rigged two video cameras to spy on the
house from 10 p.m. to 4 a.m. and to catch him.
In December 1993, Beiswenger ended up in the
emergency room with a broken cheekbone and plum-colored eye when he
dragged Filiaggi off Lisa. About a month later, he had proof. One of
the cameras caught Filiaggi on videotape throwing a bottle at the
front window. Police planned to file charges. But, less than a week
later, Filiaggi shot Lisa.
Beiswenger had bought her an engagement ring and
a wedding band. "I wasn't going to take it back," he said. "I bought
it for her. It was going to be on her hand one way or another." She
was buried with it. "I date every now and then. But after Lisa died,
I felt guilty about that. I don't know why. It's not like I'm
cheating on her," Beiswenger said. "I think about Lisa every day.
Her smile. It doesn't bother me. The thoughts are just there. Like
her clothes, her pictures and the wedding stuff are just there."
He sees Lisa's daughters, Alexis and Jasmin, when
they visit their maternal grandmother, Jane Yepko. He doesn't send
letters because they live with Filiaggi's parents. "They run and
jump all over me," Beiswenger said. "I miss them like I miss Lisa.
Alexis told me once, "I'm glad you didn't die like mommy did." "
He said he would return to work today, leaning on
his friends and his parents, who attended every day of Filiaggi's
two-week, aggravated murder trial. "My life's going on," he said.
"Slowly but surely, it's going on."
Meanwhile, a city away, the same bullet that
killed Lisa broke Tracey Jones' heart. She was Filiaggi's girlfriend
and hoped he would marry her. "I've asked him, "Why, honey, why, why,
why, why, why," said Jones, 27. "He made me the happiest I had ever
been in my life, and at the same time, he tore my world apart."
Jones met Filiaggi about seven years ago when she
was a waitress and he was a bouncer at The Warehouse, a night club
on Broad St. in Elyria. They became reacquainted in January, 1993,
one month before his divorce was final and after she and her son,
Jeremy, and daughter, Amanda, fled home from Houston and an abusive
boyfriend. "We just clicked," Jones said. "I thought I'd found the
She said they began dating frequently, and
Filiaggi, who was living in the basement of his parents' home, often
stayed the night at her house in Elyria. He had a good job as an
accountant, did laundry and vacuumed. He took her 10-year-old son to
wrestling practice twice a week and to wrestling tournaments on the
Jones, a nurse at a rehabilitation center in
North Olmsted, said she never saw the brutal side of Filiaggi, who
claimed to have been in 100 fights. She said he was rough with her
only once, shoving her head against a car door in the Flats. She
insisted she deserved it because she kicked papers in his car. Jones
said Filiaggi was agitated by the thought of somebody adopting his
children and believed Lisa unfairly limited his right to be with the
But she never suspected he would hurt Lisa. Three
hours before the murder, Jones was in bed with Filiaggi. She said
she rolled over and began to cry. "I could tell something was wrong,"
she said. "I told him, "Please, don't ever leave me." He said, "I'll
always be with you in spirit." Then he got up, got dressed and left."
Since Filiaggi's arrest 18 months ago, Jones has
stood closest to him. He calls her collect from the jail every night
to talk for 20 minutes. Her phone bill is $80 a month.
He sends her children letters stenciled with
Disney characters. He includes riddles and jokes. He sends Jeremy
math problems the boy sends back for Filiaggi to grade. "I feel bad
because all the kids are victims, too. His kids, my kids," Jones
said. "My son wanted him to adopt him, both before the murder and
after the murder. [Jeremy] said he didn't care what Jim did."
Jones, who has been hospitalized for stress, said
she stood by Filiaggi, not because she thought he was innocent but
because she loved him. "A lot of people think I'm bad, too. I'm not
bad," she said. "I haven't done anything wrong. The only thing I'm
guilty of is loving him."
Jones prays the judges will spare Filiaggi's life
Aug. 1 when they must choose the electric chair or life in prison
with parole possible after 20 years. "What he did was terrible, but
I don't think the death penalty's right. Two wrongs don't make a
right," she said. "I don't think you should play God."
But Beiswenger views Filiaggi as a menace to
society. "He deserves every volt and every amp he gets," Beiswenger
Filiaggi's reign of terror
Kavanaugh - Cleveland Plain Dealer
Thursday, January 27, 1994
Plain Dealer ReporterLast weekend, Lisa Filiaggi
and her family celebrated. For six months they had been trying to
get proof that Lisa's ex-husband was responsible for repeated
vandalism at her Lorain house and her parents' house in Amherst
Township. Lisa finally had captured him on videotape vandalizing her
house, and police had issued a warrant for his arrest on Friday.
Her sister, Anissa Huff, sent Lisa flowers and a
note congratulating her for making the front page of The Morning
Journal on Saturday, when it ran a story about the videotaping.
Lisa's mother, Jane Yepko, was contacted in Florida, where she was
visiting her ailing mother. "The police wanted proof," Yepko said. "We
But the celebration ended Monday night when,
police say, Lisa was fatally shot by her ex-husband. James Filiaggi,
28, is wanted by police in connection with Lisa's killing and an
attack against her stepfather, Delbert Yepko.
Filiaggi was last seen with some friends Tuesday
afternoon in Athens, O., said Lt. Jerry Elgin, a detective in the
Athens Police Department. Athens police, who had prior run-ins with
Filiaggi at Ohio University's annual Halloween parties in 1988 and
1993, knew him and were watching for him. "But we missed him ... by
less than 30 minutes," Elgin said.
Yepko said the police should have picked up
Filiaggi on the intimidation warrant prompted by the videotape
before Filiaggi read about it in the paper.
But Lorain Capt. Celestino Rivera said the
department had 1,300 outstanding warrants and the Friday warrant was
probably not even processed until Monday. Rivera said the complaint
was a public record, and they are required to release it. Rivera
said that Lorain police had only one complaint from Lisa, the one
captured on videotape last week. The prosecutor decided to charge
Filiaggi with intimidation, a felony, rather than stalking, which is
a misdemeanor the first time, Rivera said.
But Yepko said Lorain police and other law
enforcement agencies did not take the threats against Lisa and the
Yepkos seriously. The incident Lisa videotaped last week followed at
least two other incidents at her home, Yepko said. The front picture
window of Lisa's house was shattered twice, once by a jar full of
used motor oil, the second time by rocks.
Lisa moved the television into another room so
her two children would not be harmed and replaced the window with
shatterproof plastic. When another bottle was thrown against the
window, it didn't shatter, but the video camera recorded Filiaggi
throwing the bottle.
Lisa also bought a gun and went to a shooting
range to practice. In the past few weeks, Lisa walked around the
house with a gun in one hand, a portable phone in the other, her
sister said. But when Filiaggi broke down the back door of her house
Monday night, police said, Lisa ran out the front door with only the
phone in hand.
Last month Filiaggi was charged with assaulting
Lisa and her fiance. An Elyria judge issued a protective order,
ordering Filiaggi not to have any contact with Lisa. Lorain police
were not aware of the order against Filiaggi or the pending charges,
Two domestic violence complaints, one family
dispute, one aggravated burglary and four criminal damaging
complaints from either Lisa or the Yepkos were investigated by the
Lorain County Sheriff's Department since September 1992, soon after
Lisa filed for divorce.
But either the family did not pursue charges or
the Sheriff's Department had no evidence to link Filiaggi to the
complaints, said sheriff's Capt. Joe Bell. "What we got here is the
beginning of a divorce process, and things started to heighten,"
Bell said. "That is not uncommon in a divorce situation."
Bell said that the family never mentioned to
detectives that Filiaggi always carried a .357-caliber Magnum
pistol. "If they had told officers that, they would have put it in
the report. They look at that real seriously," Bell said.
Lisa was pregnant when she and Filiaggi were
married in December 1990. She lived in a mobile home next door to
her mother while Filiaggi lived in Athens, where he attended Ohio
During their 1-year marriage, Lisa's mother would
see bruises on her daughter or occasionally hear her talk of
Filiaggi's threats, including putting a gun to her head. "She was
too afraid to say anything, and she loved him," Yepko said. But she
finally decided she had had enough and told him she was leaving in
mid-1992. "As soon as they broke up, he was obsessed with her," Huff
said. He sprayed tear gas all over her car, ordered magazines and
sent them, along with the bill, to her house and retrieved messages
from her answering machine, family members said.
Included in Lisa's divorce decree was a
restraining order, which has only limited effect. Even if Filiaggi
had been found in contempt of court, he would have probably spent
less than 30 days in jail, said Lorain County Domestic Relations
Judge Joseph Zieba.
Filiaggi was scheduled to appear in Lorain County
Domestic Relations Court today on charges related to a property
dispute involving the divorce. The reports of Filiaggi's violence
had reached the court, said Zieba, and he had arranged to have a
police officer in the courtroom. "I assumed we were going to have a
problem," Zieba said.
Lisa seemed to assume the worst, too, family
members said. She had bought a dress for her wedding in September,
but told her fiance if something happened to her, she wanted to be
buried in the dress. "What's it going to take for them to believe us,"
Lisa often said to her family about her frustrations with the police.
"One of us dead?"
Man executed for killing ex-wife had record
number of visitors
By Andrew Walsh-Huggins - Cleveland Plain Dealer
April 26, 2007 - Associated Press
COLUMBUS, Ohio (AP) — A man executed for chasing
down and killing his ex-wife received the highest number of death
house visitors — 24 — since Ohio resumed putting inmates to death in
1999, records show.
James Filiaggi met with his mother and father,
sisters, brother, a Roman Catholic priest and numerous friends, most
from Ohio University where Filiaggi attended college, before he was
executed on Tuesday, according to a prison log of Filiaggi's last 26
hours reviewed by The Associated Press.
Filiaggi had twice as many visitors as the inmate
with the next highest tally, Willie Williams, who received 12
visitors before his 2005 execution for killing four people in
Youngstown. The log also revealed a little known fact about post-execution
procedures in Ohio: Filiaggi was the seventh inmate whose body was
anointed in oil and prayed over in a short religious ceremony by the
prison system's chaplain.
Filiaggi, 41, was the 25th person executed in
Ohio, the nation's second-busiest death penalty state, since 1999.
Another execution is scheduled for next month.
College roommate Sean Recchi said Filiaggi was
passionate about friends, regularly sending Christmas, birthday and
anniversary cards from prison. "The reason everyone came around is
because he always had everybody else's back," said Recchi, 38, a
1993 Ohio grad who now runs a bar in Lancaster in central Ohio. "If
you ever needed anything, he'd be there for you."
Other visitors included students who lived near
Filiaggi at the university and fellow members of the college rugby
On the night of Jan. 24, 1994, Filiaggi hunted
down his ex-wife, Lisa Huff Filiaggi, forcing his way into a
neighbor's home where he found her hiding. She tried to get away,
but he shot her in the head.
Dennis Ray, Lisa Huff Filiaggi's second cousin,
said he didn't know Filiaggi and couldn't speak to the type of
person he was. "I'm glad that he had some loyal friends that would
do that for him," Ray, 51, a Chillicothe high school teacher, said
Thursday. "I don't think it changes what he did and the price our
society says he has to pay for that."
The extra visitors did not cause any problems,
said prisons spokeswoman Andrea Dean. The prison permitted them to
visit in pairs; visits lasted about 20 minutes each, according to
Filiaggi napped almost two hours Monday afternoon
before visits began at 4:48 p.m., the log said. They lasted until
8:24 p.m., then resumed at 6:23 a.m. Tuesday and lasted until 8:57
a.m. He was executed at 11:23 a.m "If Jim Filiaggi loved you and you
were his friend and you were someone he loved, he never forgot it,
and you were solid with him," said Rev. Neil Kookoothe, a Roman
Catholic priest in suburban Cleveland who visited Filiaggi for years
on death row and witnessed the execution. "To have that many people
down there is no surprise at all to me."
Filiaggi was particular about his final meals,
according to the log. At 11:20 a.m. Monday, he revised his special
meal request by asking for chopped onions on top of the pirogues
he'd already requested.
The request was granted, but after the meal was
delivered, Filiaggi asked for extra sour cream. That request also
was granted. He also asked for a toothpick but was told there
weren't any. Later Monday he asked for a soda, changed his mind and
asked for a cup of iced water. Later, he asked for a cup of coffee.
Filiaggi was anointed by Rev. Gary Sims, the
prison system's religious services administrator, who also read a
Bible verse and recited the Lord's prayer. The anointing was not
disclosed previously because Sims considered the act a private
matter, Dean said. It was on Filiaggi's log because the execution
team member recording the execution decided to note everything.
Ohio executes man who gunned down ex-wife
By John McCarthy - Akron Beacon Journal
AP - Apr. 24, 2007
LUCASVILLE, Ohio - A killer who decided in his
final days to fight his death sentence was executed Tuesday for
hunting down his ex-wife and shooting her in head.
James Filiaggi, 41, had given up his appeals in
2006 to speed up his sentence. He reconsidered late last week and
tried unsuccessfully to get the courts to give him an emergency
delay. Before he died by the injection that he argued amounted to
torture, Filiaggi criticized the death penalty in his final
statement, saying many innocent inmates are on death row. "For me -
it's fine," he said.
The 11:23 a.m. execution happened about an hour
and a half later than scheduled at the Southern Ohio Correctional
Facility because prison officials waited for a ruling from the U.S.
Supreme Court. The high court joined three other courts that
rejected a delay for Filiaggi this week.
Filiaggi had hurt and threatened his ex-wife Lisa
Huff Filiaggi before she was killed 13 years ago. They married in
1991, and she filed for divorce nine months later and received
custody of their two young girls when the divorce was granted.
On the night of Jan. 24, 1994, she ran out her
front door in Lorain as Filiaggi bashed through the back door. She
hid in a neighbor's linen closet, but Filiaggi forced his way into
that home and dragged her out, shooting her in the shoulder. She
tried to get away, but he shot her in the head. "He was an animal
out to get his prey," said Lisa Filiaggi's mother, Jane Harris,
after she watched James Filiaggi die. "I wish Lisa would have gone
in such a peaceful manner."
Attorneys for Filiaggi entered a plea of not
guilty by reason of insanity, arguing that a brain disorder made him
unable to control anger-filled outbursts. Prosecutors said he knew
right from wrong. A three-judge panel in Lorain County convicted him
of aggravated murder and other charges in 1995.
Filiaggi had sought to join other Ohio inmates in
a lawsuit over the constitutionality of the state's lethal
injections, contending that the method constitutes cruel and unusual
punishment. His attorneys said after the execution that he thought
joining the lawsuit would help other inmates more than himself and
that the challenge would have a better chance if he added to the
number of plaintiffs.
Legal challenges of lethal injection have been
filed in several states with mixed results. Last month, the U.S.
Supreme Court delayed the execution of another inmate in Ohio after
he joined the same lawsuit. Other executions in Ohio have been
delayed in the past year because of the suit, although a former cult
leader was put to death despite his appeal.
Filiaggi gave a thumbs up to his spiritual
adviser when he walked into the death chamber, then repeated the
gesture to three friends when he was strapped to a table.
The Filiaggis' daughters, now 16 and 14, are
being raised by James Filiaggi's younger brother, Anthony, in Elyria.
In a note to the Ohio Parole Board, 14-year-old Jasmin Filiaggi
wrote that she had no sympathy for her father.
This was the first execution carried out under
Democratic Gov. Ted Strickland, who took office in January.
Strickland denied clemency last week, even though Filiaggi hadn't
asked for his life to be spared. On Monday, Strickland refused
Filiaggi's request for a reprieve to allow Filiaggi to pursue
joining the lethal injection lawsuit.
Filiaggi was the 25th inmate that Ohio put to
death since resuming executions in 1999. The others all were
executed under former Gov. Bob Taft, a Republican.
Ohio Adult Parole Authority
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: January 25, 2007
Minutes of the SPECIAL MEETING of the Adult Parole Authority held at
1030 Alum Creek Drive, Columbus, Ohio 43205 on the above date.
James J Filiaggi A311-180
Death Penalty Clemency Report
The Ohio Parole Board with eight (8) members participating, by a
vote of eight (8) to zero (0) recommends to the Honorable Ted
Strickland, Governor of the State of Ohio, that Executive Clemency
be denied in the case of James J. Filiaggi.
James Filiaggi and Lisa Huff married in December
1991. There were two daughters born during the marriage. Lisa filed
for divorce in August 1992, and the divorce was granted in February
1993. Lisa received custody of the children, although Filiaggi had
visitation rights. Filiaggi was required to pay child support.
Relations between Filiaggi and Lisa were strained.
In the spring of 1993, Lisa and the two children
moved into the home of Eric Beiswenger. In the fall of 1993, Lisa
and Eric became engaged, and shortly thereafter, became the victims
of telephone harassment and vandalism. Eric and Lisa suspected that
Filiaggi was responsible for the acts, and set up video cameras
hoping to capture him on tape. Lisa also carried a tape recorder
In the fall of 1993, Lisa and Eric recorded a
phone conversation in which Filiaggi told Lisa that there are going
to be "more headaches and heartaches if she tries to get more money
out of him." Lisa Filiaggi had wondered aloud to her family about
when authorities would take her complaints seriously. "What's it
going to take?" she asked her sister. "One of us dead?" The 27-year-old
mother of two tried for months to stop an obsessive ex-husband from
harassing her. She told police that he sprayed tear gas on her car
and threw a can of motor oil and rocks through her front window. But
there was never enough evidence to prosecute.
On December 19, 1993, Lisa and Eric went to the
home of Filiaggi’s parents to pick up the children after a visit.
Lisa carried a tape recorder in her pocket, which recorded the
incident. Filiaggi and Lisa were arguing while Filiaggi put one
child in a car seat in the back seat of the vehicle.
After putting the child in the seat, Filiaggi
grabbed Lisa around the neck and she began screaming. Eric, who was
outside the vehicle, grabbed Filiaggi by the waist and pulled him
off her. Filiaggi turned around and struck Eric in the face numerous
times. Eric suffered multiple broken bones in his face. The assault
ended when Filiaggi’s mother came out, grabbed Filiaggi, and yelled
at him to stop.
The recording of the incident was admitted into
evidence. Eric and Lisa pressed charges against Filiaggi, and he was
arrested and indicted for felonious assault and domestic violence.
He was released on bond awaiting trial.
The picture window to Eric’s house was also
broken on numerous occasions. On January 20, 1994, the last time
there was an attempt to break the window, the video camera recorded
the incident and clearly showed Filiaggi as the person throwing a
bottle at the window. Charges were filed against Filiaggi for
attempted vandalism, criminal trespassing, and intimidation of a
Two days later, Filiaggi purchased a 9mm Luger
pistol, which had two clips for ammunition. He also purchased
ammunition for the weapon, despite the fact that he already
possessed another gun. According to the defense theory, he intended
to go to Lisa’s house and kill himself in front of her. On January
24, 1994, Filiaggi took a $1,000 cash advance on his Visa card. He
left six to seven hundred dollars with his girlfriend, Tracey.
At approximately 10:45 p.m., the Lorain Police
Department dispatcher received a call from Lisa. The call was tape-recorded.
Lisa told the dispatcher that her ex-husband, Filiaggi, was at her
back door and was breaking into her house. Filiaggi broke down the
door and entered the house. Still carrying the telephone, Lisa fled
out the front door.
A neighbor named Robert who lived two doors away
saw Lisa standing in the yard of the intervening neighbor and
frantically looking around. Another neighbor was awakened by someone
screaming, "God help me, someone, please, help me, he’s going to
kill me." Lisa saw Robert looking out the window and ran towards his
front door. He let her in, and Lisa told him that her ex-husband was
after her with a gun. She looked petrified and ran past him while
Robert locked the door behind her.
Moments later, Robert heard a couple of bangs on
the door and the door came crashing in. Filiaggi had a gun in his
hand and asked Robert where she went. Robert said he did not know,
and Filiaggi told Robert to help find her. They both started down
the hallway. When they came to a linen closet, with the door
partially open, Filiaggi opened the door and found Lisa. Filiaggi
was very angry and pulled Lisa from the closet by the arm and swung
her into the bathroom, which was across the hall from the closet.
There was a struggle. Robert heard Filiaggi tell Lisa, "This will
teach you to f*ck with me," and then heard two shots fired.
Although shot in the shoulder, Lisa was able to
get away and run across the hallway into one of the bedrooms. Robert,
standing partially in one of the bedrooms, was pleading with
Filiaggi not to shoot her. Robert was in another bedroom and
Filiaggi told Robert to close the bedroom door and stay out.
Robert again heard Filiaggi tell Lisa, "This will
teach you not to f*ck with me" and heard two more shots. Robert then
heard footsteps down the hallway. Robert came out of the bedroom and
saw Lisa slumped against the wall. She had been shot in the head.
Robert attempted to call 911, but noticed a policeman coming through
his front door.
About twenty minutes away, in Amherst Township,
Lisa’s stepfather Delbert, was watching the news. At 11:15 p.m., he
heard pounding at the front door. While he had a motion detector
light on the side of the trailer, it was not on and the area outside
the door was dark. He was home alone and had previously been
vandalized, so he picked up a can of red pepper spray and went to
He opened the door about three inches and saw
Filiaggi. Filiaggi then bashed the door in. Filiaggi came in the
house and said, "Are you ready to die?" Delbert saw a gun in
Filiaggi’s right hand. Filiaggi brought the gun up to shoot Delbert
and said, "I’m going to kill you." Delbert sprayed Filiaggi in the
face with the pepper spray, and Filiaggi shot at him twice, but did
not hit him.
Delbert managed to get out of the trailer,
without a coat or shoes. He ran to four separate trailers, knocking
on doors, finally gaining admittance to the fourth one where he was
able to call 911. He tried to call Lisa, but was shaking too badly.
On the morning of January 25, 1994, between 8:00
a.m. and 9:00 a.m., Filiaggi arrived at the home of a college friend.
Filiaggi asked if he could "crash," and he laid down on the couch.
The college friend took his girlfriend to work later that morning.
His girlfriend later called him and told him that Filiaggi had
killed Lisa. The man confronted Filiaggi about it. Filiaggi got up
off the couch and a gun fell to the floor. Filiaggi then left the
On January 27, 1994, Filiaggi took another $1,000
cash advance. Filiaggi fled the state, but returned to Lorain, when
he discovered that his parents may lose their house which had been
put up for his bond on the previous charges. Filiaggi had rented a
car at the Pittsburgh Airport that was later recovered in an area
near Filiaggi’s parents’ home. The car contained the rental
agreement as well as several rounds of 9 mm ammunition. The murder
weapon was never found.
Filiaggi entered a plea of not guilty by reason
of insanity, claiming a poor diet was what caused him to react
violently; the so-called "Twinkie defense." He also waived his right
to be tried by a jury. A three-judge panel heard the evidence
presented on all charges.
The three-judge panel entered its verdict on the
aggravated murder charge, but only the presiding judge entered a
verdict on the remaining charges. The three-judge panel found
Filiaggi guilty of aggravated murder and the three capital
specifications: the offense was committed for the purpose of
escaping detection, apprehension, trial, or punishment for another
offense committed by Filiaggi; the offense was part of a course of
conduct involving the purposeful killing of or attempt to kill two
or more persons by Filiaggi; and the victim of the offense was a
witness to prior offenses by Filiaggi and was purposely killed to
prevent her testimony in a criminal proceeding concerning those
prior offenses. The case proceeded to the penalty phase and the
panel sentenced Filiaggi to death.
UPDATE: A condemned murderer who had hinged his
appeals on a challenge to the execution procedure was executed by
lethal injection at 11:23 am in Ohio. The execution was delayed by
about 90 minutes while officials awaited a Supreme Court ruling in
the case. James Filiaggi, 41, had given up his appeals in 2006 and
asked to speed up his execution, but then reconsidered late last
week and tried without success to delay his execution. The high
court, as well as three other courts, ruled against Filiaggi during
the final day before his scheduled execution.
In a final statement, Filiaggi suggested that
there are many innocent inmates on death row. "For me - it's fine,"
he said. "I want to say thanks to my family for all the support," he
said. "I'm sorry I flipped up the world."
State v. Filiaggi, 86 Ohio St.3d 230,
714 N.E.2d 867 (Ohio 1999). (Direct Appeal)
Defendant was convicted in the Court of Common
Pleas, Lorain County, of aggravated murder of his ex-wife and other
offenses, and he was sentenced to death. Defendant appealed. The
Court of Appeals affirmed. Defendant appealed. The Supreme Court,
Lundberg Stratton, J., held that: (1) defendant did not prove he was
incompetent to stand trial; (2) court was not required to advise
defendant, before accepting his jury waiver, of presumption of
correctness attached to findings of three-judge panel; (3) record
did not support defendant's claim that his jury waiver was not
knowing, intelligent and voluntary; (4) three-judge panel should
have determined non-capital charges and capital charge; (5) court
properly refused to admit reports of defense experts; (6) evidence
showed that defendant did not qualify for insanity defense; (7)
evidence supported finding of two aggravating circumstances; (8)
aggravating circumstances outweighed mitigating factors; and (9)
death sentence was not disproportionate. Judgment affirmed in part,
reversed in part, and cause remanded. Pfeifer, J., concurred in
judgment only. Cook, J., concurred in part and dissented in part
This appeal involves charges from two separate
incidents concerning the defendant-appellant, James J. Filiaggi, and
his ex-wife, Lisa Huff Filiaggi. The first incident resulted in
charges of felonious assault and domestic violence; the second
incident resulted in charges of aggravated murder, attempted
aggravated murder, aggravated burglary, and kidnapping. A three-judge
panel convicted defendant and sentenced him to death for the
aggravated murder of Lisa Huff Filiaggi (“Ms. Filiaggi”).
Defendant and Ms. Filiaggi married in December
1991. There were two children born during the marriage. Ms. Filiaggi
filed for divorce in August 1992, and the divorce was granted in
February 1993. Ms. Filiaggi received custody of the children,
although defendant had visitation rights. Defendant was required to
pay child support. Relations between defendant and Ms. Filiaggi were
In the spring of 1993, Ms. Filiaggi and the two
children moved into the home of Eric Beiswenger. In the fall of
1993, Ms. Filiaggi and Beiswenger became engaged, and shortly
thereafter, became the victims of telephone harassment and vandalism.
Beiswenger and Ms. Filiaggi suspected that defendant was responsible
for the acts, and set up video cameras hoping to capture him on
tape. Ms. Filiaggi also carried a tape recorder with her.
In the fall of 1993, Ms. Filiaggi and Beiswenger
recorded a phone conversation in which defendant told Ms. Filiaggi
that there are going to be “more headaches and heartaches if she
tries to get more money out of him.”
On December 19, 1993, Ms. Filiaggi and Beiswenger
went to the home of defendant's parents to pick up the children
after a visit. Ms. Filiaggi carried a tape recorder in her pocket,
which recorded the incident. Defendant and Ms. Filiaggi were arguing
while defendant put one child in a car seat in the back seat of the
After putting the child in the seat, defendant
grabbed Ms. Filiaggi around the neck and she began screaming.
Beiswenger, who was outside the vehicle, grabbed defendant by the
waist and pulled him off her. Defendant turned around and struck
Beiswenger in the face numerous times. Beiswenger suffered multiple
broken bones in his face. The assault ended when defendant's mother
came out, grabbed defendant, and yelled at him to stop. The
recording of the incident was admitted into evidence.
Beiswenger and Ms. Filiaggi pressed charges
against defendant, and he was arrested and indicted for felonious
assault and domestic violence. He was released on bond awaiting
The picture window of Beiswenger's house was also
broken on numerous occasions. On January 20, 1994, the last time
there was an attempt to break the window, the video camera recorded
the incident and clearly showed defendant as the person throwing a
bottle at the window. Charges were filed against defendant for
attempted vandalism, criminal trespassing, and intimidation of a
Two days later, defendant purchased a 9 mm Luger
pistol, which had two clips for ammunition. He also purchased
ammunition for the weapon, despite the fact that he already
possessed another gun. According to the defense theory, he intended
to go to Ms. Filiaggi's house and kill himself in front of her.
On January 24, 1994, defendant took a $1,000 cash
advance on his Visa card. He left $600 to $700 with his girlfriend,
Tracey Jones. At approximately 10:45 p.m., the Lorain Police
Department dispatcher received a call from Ms. Filiaggi. The call
was tape-recorded. Ms. Filiaggi told the dispatcher that her ex-husband,
defendant, was at her back door and was breaking into her house.
Defendant broke down the door and entered the
house. Still carrying the telephone, Ms. Filiaggi fled out the front
door. A neighbor, Robert Mutnansky, who lived two doors away, saw Ms.
Filiaggi standing in the yard of the intervening neighbor and
frantically looking around. Another neighbor was awakened by someone
screaming, “God help me, someone, please, help me, he's going to
kill me.” Ms. Filiaggi saw Mutnansky looking out the window and ran
towards his front door. He let her in, and Ms. Filiaggi told him
that her ex-husband was after her with a gun. She looked petrified
and ran past him while Mutnansky locked the door behind her.
Moments later, Mutnansky heard a couple of bangs
on the door and the door came crashing in. Defendant had a gun in
his hand and asked Mutnansky where she went. Mutnansky said he did
not know, and defendant told Mutnansky to help find her. They both
started down the hallway. When they came to a linen closet, with the
door partially open, defendant opened the door and found Ms.
Filiaggi. Defendant was very angry and pulled Ms. Filiaggi from the
closet by the arm and swung her into the bathroom, which was across
the hall from the closet. There was a struggle. Mutnansky heard
defendant tell Ms. Filiaggi, “This will teach you to fuck with me,”
and then heard two shots fired.
Although shot in the shoulder, Ms. Filiaggi was
able to get away and run across the hallway into one of the bedrooms.
Mutnansky, standing partially in one of the bedrooms, was pleading
with defendant not to shoot her. Mutnansky was in another bedroom
and defendant told Mutnansky to close the bedroom door and stay out.
Mutnansky again heard defendant tell Ms. Filiaggi, “This will teach
you not to fuck with me” and heard two more shots. Mutnansky then
heard footsteps down the hallway. Mutnansky came out of the bedroom
and saw Ms. Filiaggi slumped against the wall. She had been shot in
the head. Mutnansky attempted to call 911, but noticed a policeman
coming through his front door.
About twenty minutes away, in Amherst Township,
Delbert Yepko, Ms. Filiaggi's stepfather, was watching the news. At
11:15 p.m., he heard pounding at the front door. While he had a
motion detector light on the side of the trailer, it was not on and
the area outside the door was dark. He was home alone, and his house
had previously been vandalized, so he picked up a can of red pepper
spray and went to the door. He opened the door about three inches
and saw defendant. Defendant then bashed the door in.
Defendant came in the house and said, “Are you
ready to die?” Yepko saw a gun in defendant's right hand. Defendant
brought the gun up to shoot Yepko and said, “I'm going to kill you.”
Yepko sprayed defendant in the face with the pepper spray, and
defendant shot at him, but did not hit him. Yepko managed to get out
of the trailer, without a coat or shoes. He ran to four separate
trailers, knocking on doors, finally gaining admittance to the
fourth one, where he was able to call 911. He tried to call Ms.
Filiaggi, but was shaking too badly.
On the morning of January 25, 1994, between 8:00
and 9:00 a.m., defendant arrived at the home of Howard R. Matlack, a
college friend. Defendant asked Matlack if he could “crash,” and he
lay down on the couch. Matlack took his girlfriend to work later
that morning. His girlfriend later called Matlack and told him that
defendant had killed Ms. Filiaggi. Matlack confronted defendant
about it. Defendant got up off the couch and a gun fell to the floor.
Defendant then left Matlack's house.
On January 27, 1994, defendant took another
$1,000 cash advance. Defendant fled the state, but returned to
Lorain, when he discovered that his parents might lose their house,
which had been put up for his bond on the previous charges.
Defendant had rented a car at the Pittsburgh Airport that was later
recovered in an area near defendant's parents' home. The car
contained the rental agreement as well as several rounds of 9 mm
ammunition. The murder weapon was never found.
Defendant entered a plea of not guilty by reason
of insanity. He also waived his right to be tried by a jury. A three-judge
panel heard the evidence presented on all charges. The three-judge
panel entered its verdict on the aggravated murder charge, but only
the presiding judge entered a verdict on the remaining charges.
The three-judge panel found defendant guilty of
aggravated murder and the three capital specifications: the offense
was committed for the purpose of escaping detection, apprehension,
trial, or punishment for another offense committed by defendant (R.C.
2929.04[A] ); the offense was part of a course of conduct
involving the purposeful killing of or attempt to kill two or more
persons by defendant (R.C. 2929.04[A] ); and the victim of the
offense was a witness to prior offenses by defendant and was
purposely killed to prevent her testimony in a criminal proceeding
concerning those prior offenses (R.C. 2929.04[A] ). The case
proceeded to the penalty phase and the panel sentenced defendant to
death. The court of appeals affirmed the convictions and death
The cause is now before this court upon an appeal
as of right.
Gregory A. White, Lorain County Prosecuting
Attorney, and Jonathan E. Rosenbaum, Assistant Prosecuting Attorney,
for appellee. Jack W. Bradley, Lorain, and Renee W. Green, Akron,
LUNDBERG STRATTON, J.
In this appeal, defendant raises twelve propositions of law. We
sustain defendant's fourth proposition of law and remand the cause
to the trial court. We affirm defendant's aggravated-murder
conviction, and after independently reviewing the record, weighing
the aggravating circumstances against the mitigating factors, and
examining the proportionality of the death sentence in this case to
the penalty imposed in similar cases, we affirm defendant's sentence
Competency to Stand Trial
The trial proceedings were set to begin on July
11, 1995. Defendant had entered a plea of not guilty by reason of
insanity; however, the question of competency had not been raised.
On the way to the courthouse for the start of the trial, officers
shackled defendant and placed a stun belt on him for security
purposes. En route, defendant was accidentally shocked by the stun
belt. As a result, he was shaken up, and evidence indicated that he
might have been placed on Valium. The court recessed until that
afternoon. When court resumed, defendant, with his three attorneys
present, waived his right to trial by jury. After opening arguments,
eight state's witnesses testified. Court then recessed for the day.
The next morning, July 12, 1995, defense counsel
told the trial court that in the opinion of all three defense
counsel, defendant was not competent to stand trial, i.e., to
understand the nature of the charges against him or to assist in his
defense. The court contacted the local forensics center and
requested that the defendant be examined to determine if he was
competent. The forensics center immediately accommodated the court's
request, and court recessed for the day.
On July 13, 1995, the court held a competency
hearing. Defendant gave counsel permission to proceed without him.
Dr. Thomas Haglund, who had examined defendant on July 12, testified
that he had interviewed defendant for about forty-five minutes. He
related that defendant believed that he was still receiving shocks
from the stun belt. Dr. Haglund indicated that defendant was quite
tense and agitated during the interview. At one point during the
interview, defendant began to lose control, breathed more rapidly,
and his legs and feet began to shake.
On cross-examination, Dr. Haglund testified that
he did not think that defendant was malingering. It was his opinion
that given the state that defendant was in as a result of the stun
belt incident, he was concerned about defendant's mental condition
and did not think defendant was able to continue with the trial.
Although Dr. Haglund had not talked with defendant on the day of the
competency hearing, he testified that he believed the defendant's
emotional state could be turned around quickly and was on a day-to-day
Dr. Haglund also testified that during the
interview, defendant was mentally alert, oriented, and able to
answer questions. When questioned, defendant was able to tell Dr.
Haglund what he had been charged with and who his attorneys were, as
well as give a brief description of the testimony from the day
before. Defendant understood that he was under a doctor's care, and
identified his doctor and the medications he was currently receiving.
Defendant also knew why he was on the medications.
In response to the prosecutor's questions, Dr.
Haglund stated that defendant understood the proceedings against
him, and was able to consult with his attorneys and to assist in
preparing his defense. Again, on cross-examination, Dr. Haglund
testified that he believed defendant to be able to assist in his own
defense and to consult with counsel and understand the court
proceedings. Defense counsel declined to call any witnesses, nor did
counsel offer any testimony to contradict Dr. Haglund's findings or
his report that the defendant had slept well and was in acceptable
physical condition at the time of the examination.
The court determined that defendant was competent
to stand trial, and that the trial would proceed. Defense counsel
requested that Dr. Haglund be given the opportunity to examine
defendant again, and also requested that defendant's own treating
psychiatrist be given the opportunity to examine him. The court
determined that other evidence concerning defendant's medical
condition was not relevant on this point. Defense counsel's motion
for a mistrial was overruled.
After one state's witness testified, defense
counsel put the following matters on the record: that defendant was
brought into court in a wheelchair with handcuffs, leg irons and a
body belt; that in defense counsel's opinion, defendant was
incoherent; that he was not following the proceedings and could not
communicate or assist defense counsel; that defense counsel did not
believe that defendant was malingering; and that his pulse rate was
one hundred twenty. Defense counsel again requested a mistrial. The
prosecutor responded that defense counsel had several opportunities
to speak with defendant throughout the day and never mentioned to
the court that defendant was incoherent before the deputies
transported defendant to court. The prosecutor stated that, in his
opinion, defendant was malingering. The motion for mistrial was
When the trial resumed on July 14, defense
counsel again indicated that he did not think that defendant was
competent to proceed. However, defense counsel did not file any
additional information to support these allegations. Further, a
deputy who guarded the defendant during the noon recess testified
that defendant was doing stretching exercises, seemed to be fine,
was not shaking, was in control of himself, and was conversing in a
normal tone with his lawyers. The court overruled the motion, as
well as defense counsel's motion for a mistrial.
Defense counsel made similar motions concerning
defendant's competence and requested a mistrial throughout the
course of the trial. Again, these motions were unsupported and
consequently were denied.
After defendant was convicted and sentenced to
death, defense counsel filed a motion for new trial on the grounds
that defendant was not competent to stand trial. Attached to the
motion were affidavits by his counsel and a physician, and a report
by the psychiatrist who had been treating defendant before and
during trial. The defendant also attached a report of a radiology
examination that was performed on July 21, 1995 (after the date of
conviction but before the sentencing phase), which indicated that
there had been some change in defendant's brain since a prior
examination on March 25, 1995. The affidavits and report described
some physiological observations of defendant during the course of
trial, which included increased respiration, elevated pulse,
sweating, shaking, and stammering. The trial court denied the motion
for new trial.
Former R.C. 2945.37, in effect at the time of
defendant's trial, provided: “(A) In a criminal action in a court of
common pleas or municipal court, the court, prosecutor, or defense
may raise the issue of the defendant's competence to stand trial. *
* * If the issue is raised after trial has begun, the court shall
hold a hearing on the issue only for good cause shown. “A defendant
is presumed competent to stand trial, unless it is proved by a
preponderance of the evidence in a hearing under this section that
because of his present mental condition he is incapable of
understanding the nature and objective of the proceedings against
him or of presently assisting in his defense. “ * * * “The
prosecutor and defense counsel may submit evidence on the issue of
the defendant's competence to stand trial.”
When the question of competency arose, the court,
having determined that there was good cause, ordered that defendant
be examined. A hearing was held the day after the evaluation.
Pursuant to R.C. 2945.37, the defense had the burden of proving that
defendant was incompetent. The only witness called during the
hearing was Dr. Haglund.
As stated, Dr. Haglund testified that defendant
was competent to stand trial. Dr. Haglund wavered only on the issue
of whether defendant was capable of going forward with the trial due
to his mental/emotional state. However, this had more to do with the
stun belt incident and some follow-up incidents where correction
officers attempted to restrain him before transport. These events
served as the basis for Dr. Haglund's desire to reexamine defendant,
not that defendant had somehow become incompetent from the previous
At the time the trial court was called upon to
decide defendant's competence, the information indicated that
although shaken from the stun belt incident, defendant had come to
trial that afternoon, July 11, waived his right to a jury trial, and
sat through a half a day of testimony. The court based its
determination of competence on those factors, in combination with
Dr. Haglund's opinion and the court's own observations of the
defendant's behavior. Defendant did not carry his burden of proving
After the trial court found defendant competent,
defense counsel persisted in their efforts to obtain an additional
evaluation of competence. Their requests were based on their own
observations of defendant during the trial proceedings. Even though
defendant was being treated by a psychiatrist who examined him four
days after the stun belt incident, an affidavit by the doctor was
not presented until the new trial motion was filed. Based on the
evidence presented at the time of the hearing, the trial court's
decision was proper.
The record indicates that defense counsel raised
concerns about defendant's mental state during the course of the
trial. Given that defense counsel are officers of the court, their
assertions cannot be dismissed. However, in State v. Chapin (1981),
67 Ohio St.2d 437, 21 O.O.3d 273, 424 N.E.2d 317, we held: “An
unqualified suggestion of defendant's incompetency to stand trial by
defense counsel during trial without additional objective
indications such as, but not limited to, supplemental medical
reports, defendant's conduct at trial or specific reference to
defendant's irrational behavior or the like does not meet the ‘good
cause shown’ standard of R.C. 2945.37.” Id., paragraph one of the
During the course of the trial, defense counsel
filed no additional information to support their allegations of
incompetency. Further, defense counsel's statements must be balanced
against the court's own observations, as well as the statements of
the deputy sheriffs who also observed defendant (although such
statements were not under oath). Considering the totality of the
evidence, the trial court did not abuse its discretion in denying
the motions for additional evaluation and mistrial.
While defendant did file additional information
with his motion for new trial, the standard of review remains
whether the trial court abused its discretion. State v. Schiebel
(1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the
syllabus; State v. Williams (1975), 43 Ohio St.2d 88, 72 O.O.2d 49,
330 N.E.2d 891. In the entry denying the new trial motion, the
presiding judge considered the additional medical evidence, and
still determined that defendant was competent to stand trial. That
determination was based on the court's own observations, as well as
unrefuted representations of correctional officers who observed
defendant showering, eating meals, and conversing with other inmates,
correctional officers and, upon request, with his attorneys. The
detailed entry of the trial court fails to support defendant's claim
that the court's decision was unreasonable, arbitrary, or
unconscionable. Thus, we find no abuse of discretion. State v. Adams
(1980), 62 Ohio St.2d 151, 158, 16 O.O.3d 169, 173, 404 N.E.2d 144,
149. Accordingly, we overrule defendant's first and second
propositions of law.
Jury Waiver Colloquy
In his third proposition of law, defendant makes
two specific arguments concerning his jury waiver on July 11. First,
he argues that a jury waiver in a capital case is not made knowingly,
intelligently, and voluntarily unless the defendant is aware of all
the implications of the waiver. Second, he argues that because he
was accidentally shocked with the stun belt on the morning of trial,
and was on Valium as a result, his waiver was not knowing, voluntary,
Defendant first asserts that this court's
decision in State v. Post (1987), 32 Ohio St.3d 380, 513 N.E.2d 754,
is inconsistent with State v. Jells (1990), 53 Ohio St.3d 22, 559
N.E.2d 464, paragraph one of the syllabus. We held in Post, “[T]his
court indulges ‘ * * * in the usual presumption that in a bench
trial in a criminal case the court considered only the relevant,
material, and competent evidence in arriving at its judgment unless
it affirmatively appears to the contrary.’ ” Id., 32 Ohio St.3d at
384, 513 N.E.2d at 759, quoting State v. White (1968), 15 Ohio St.2d
146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70. In Jells, we held
that there is no requirement for a trial court to interrogate a
defendant in order to determine whether he or she is fully apprised
of the right to a jury trial. Defendant now argues that after this
court's decision in Post, the defendant must be advised of the
presumption of correctness that will attach to the findings of the
Since Jells holds that no inquiry is required,
the trial court's failure to make specific inquiries of the
defendant cannot be error. “While it may be better practice for the
trial judge to enumerate all the possible implications of a waiver
of a jury, there is no error in failing to do so.” Id., 53 Ohio St.3d
at 26, 559 N.E.2d at 468. Here, the trial judge read the waiver
aloud, and asked defendant if “this [was] your desire?” Defendant
answered in the affirmative. Pursuant to Jells, no more was required.
Defendant also argues that his waiver was not
knowing, intelligent, and voluntary because “the waivers were signed
at a time shortly after appellant had been administered the shock of
50,000 volts of electricity from a stun belt he was wearing * * * [and]
had just been placed under the influence of Valium.” The record
supports defendant's claim that he was shocked by the stun belt;
however, the record does not indicate the voltage level. The record
also indicates that the trial judge stated: “The defendant is shaken,
and he may be on Valium.” The court took a recess directly after
this incident for the remainder of the morning, and the court then
reconvened at 1:30 p.m. Immediately upon reconvening, the parties
addressed the subject of the waivers and made opening statements.
Nothing indicates that defendant was unable to make a decision
concerning the jury waiver. Defendant was represented by three
attorneys, one of whom was a physician, and they never indicated
that defendant would not be able to waive his right to a jury.
Further, while defense counsel requested a mistrial and additional
evaluations of defendant during the course of the trial alleging
incompetence, they never asked the court to revisit the jury waiver
issue. The record does not support defendant's claim that his waiver
was not knowing, intelligent, and voluntary. Therefore, we overrule
this proposition of law.
Determination of the Charges by One versus
The presiding judge consolidated defendant's
cases. The first case (No. 93CR044726) included charges of felonious
assault and domestic violence after an altercation by defendant with
Ms. Filiaggi and Beiswenger in December 1993. The second case (No.
94CR044866) involved charges of aggravated murder, attempted
aggravated murder, aggravated burglary, and kidnapping on January
24, 1994. Defendant filed a motion to consolidate the cases for
trial, which was granted. Defendant waived his right to be tried by
a jury in both cases. However, in the second case, the three-judge
panel decided only the aggravated murder count and the accompanying
specifications. The presiding judge alone determined all the
remaining charges (attempted aggravated murder, aggravated burglary,
and kidnapping) connected to the death penalty case. In his fourth
proposition of law, defendant challenges that procedure. Defendant
does not challenge the convictions for felonious assault and
domestic violence (No. 93CR044726), the consolidated case.
It is clear from the jury waiver colloquy that
the presiding judge thought that defendant was entitled to a three-judge
panel only on the aggravated murder charge, and that he alone should
determine guilt on the remaining counts. Defendant signed the
waivers. The three trial judges sat and collectively listened to all
the testimony as to all the charges, but the panel entered its
verdicts only on the aggravated murder charge and specifications.
The presiding judge decided the remaining charges.FN1
FN1. The presiding judge found defendant not
guilty of the kidnapping charges. The state contends that defendant
consented to the procedure and therefore waived any error. However,
we conclude that this jurisdictional matter cannot be waived.
R.C. 2945.06 provides: “If the accused is charged
with an offense punishable with death, he shall be tried by a court
to be composed of three judges, consisting of the judge presiding at
the time in the trial of criminal cases and two other judges to be
designated by the presiding judge or chief justice of that court,
and in case there is neither a presiding judge nor a chief justice,
by the chief justice of the supreme court. The judges or a majority
of them may decide all questions of fact and law arising upon the
trial; however, the accused shall not be found guilty or not guilty
of any offense unless the judges unanimously find the accused guilty
or not guilty.” (Emphasis added.)
In State v. Smith (1997), 80 Ohio St.3d 89, 104,
684 N.E.2d 668, 684-685, the defendant argued that even though all
charges were present in the same indictment, his noncapital offenses
were separate from the capital offenses, and thus he should be
allowed to appeal the noncapital offenses to the court of appeals.
We held, however, that we had jurisdiction over the entire case, and
not just certain counts, charges, or sentences. Here, the statute
makes no provision for trying the noncapital counts by a single
judge when a three-judge panel tries the capital offenses. In the
thirty-eight previous three-judge panel cases reviewed by this court,
no previous trial court has interpreted R.C. 2945.06 as did the
presiding judge (and the court of appeals) in this case.
We find persuasive the cogent reasoning of
another state court that faced a similar situation: “[W]here it is
apparent from the allegations that the matter alleged is within the
class of cases in which a particular court has been empowered to act,
jurisdiction is present. Any subsequent error in the proceedings is
only error in the ‘exercise of jurisdiction,’ as distinguished from
the want of jurisdiction in the first instance. * * * “ ‘[I]n cases
where the court has undoubted jurisdiction of the subject matter,
and of the parties, the action of the trial court, though involving
an erroneous exercise of jurisdiction, which might be taken
advantage of by direct appeal, or by direct attack, yet the judgment
or decree is not void though it might be set aside for the irregular
or erroneous exercise of jurisdiction if appealed from . It may not
be called into question collaterally.’ ” (Emphasis sic.) In re Waite
(1991), 188 Mich.App. 189, 200, 468 N.W.2d 912, 917, quoting Jackson
City Bank & Trust Co. v. Fredrick (1935), 271 Mich. 538, 544-546,
260 N.W. 908, 909.
We have consistently required strict compliance
with Ohio statutes when reviewing the procedures in capital cases.
See State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766,
paragraph one of the syllabus.
Since R.C. 2945.06 mandates that “the accused
shall not be found guilty or not guilty of any offense unless the
judges unanimously find the accused guilty or not guilty,” the
presiding judge did not have sole authority to enter a verdict on
the noncapital charges. Thus, the trial is still incomplete because
outstanding charges remain to be decided by the three-judge panel.
See State v. Green (1998), 81 Ohio St.3d 100, 689 N.E.2d 556,
Therefore, we reverse and remand to the trial
panel the verdicts on the non-capital offenses, attempted aggravated
murder, aggravated burglary, and kidnapping. Upon remand, the trial
panel is required to proceed from the point at which the error
occurred. Montgomery Cty. Commrs. v. Carey (1853), 1 Ohio St. 463,
paragraph one of the syllabus; State ex rel. Stevenson v. Murray
(1982), 69 Ohio St.2d 112, 113, 23 O.O.3d 160, 160-161, 431 N.E.2d
324, 325. Thus, the three-judge panel, having already heard all of
the evidence, should reconstitute itself and deliberate anew on the
charges of attempted aggravated murder, aggravated burglary, and
kidnapping. The three-judge panel, as a whole, considered the
aggravated murder charge, specifications, and penalty, as required
by the statute; therefore, the verdicts on that charge are not
Inquiry on Waiver of Right to Testify
In his fifth proposition of law, defendant argues
that he was deprived of due process rights because the trial court
did not, sua sponte, inquire as to whether his “failure to testify
was a result of his own thinking.”
We recently addressed this issue for the first
time in State v. Bey (1999), 85 Ohio St.3d 487, 499, 709 N.E.2d 484,
497, and held that “a trial court is not required to conduct an
inquiry with the defendant concerning the decision whether to
testify in his defense.” (Emphasis added.)
In this case, nothing in the record suggests that
defendant was unaware of his right to testify or that defendant's
counsel failed to advise him of his right. Nothing suggests that
defendant wanted to testify or was denied the opportunity to do so.
Accordingly, we overrule defendant's fifth proposition of law.
Failure to Admit Psychological Reports
Defendant presented a clinical psychologist and
three psychiatrists as experts during the defense case. The state
called one forensic psychiatrist to testify in rebuttal. At the
close of the rebuttal case, the state moved for the admission of the
report that its expert had prepared. Defense counsel objected,
arguing that the court heard the testimony, but the court admitted
the report. At that point, defense counsel asked the court to admit
his experts' reports. The prosecutor objected, arguing, “[T]hey had
their chance, it's not their case.” The trial court denied the
defense's request. In his sixth proposition of law, defendant argues
that the trial court erred in refusing to permit the admission of
the defense experts' reports.
R.C. 2945.10(C) specifies the order of
proceedings at trial: “The state must first produce its evidence and
the defendant shall then produce his evidence.” “The state will then
be confined to rebutting evidence, but the court, for good reason,
in furtherance of justice, may permit evidence to be offered by
either side out of its order.” R.C. 2945.10(D). Moreover, this court
has held that “[t]he admission or exclusion of relevant evidence
rests within the sound discretion of the trial court.” State v. Sage
(1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two
of the syllabus.
The appropriate time for defense counsel to have
requested admission of the reports of the defense experts was during
the defense's case. While it certainly was within the court's
discretion to have admitted the reports at the close of the rebuttal
case, the court's refusal to admit the reports does not constitute
an abuse of discretion, which would be “more than an error of law or
of judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d
151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. Defendant has not
met that burden here.
Further, even if the trial court erred in
excluding the reports, the error was harmless. The court had the
opportunity to hear all the witnesses testify in person and,
therefore, the information given by the experts was conveyed to the
trial court and the reports were merely cumulative. Accordingly, we
overrule this proposition of law.
Failure to Find Defendant Not Guilty by Reason
Defendant entered a plea of not guilty by reason
of insanity. A plea of not guilty by reason of insanity is an
affirmative defense that must be proven by a preponderance of the
evidence. State v. Brown (1983), 5 Ohio St.3d 133, 5 OBR 266, 449
N.E.2d 449. A person is not guilty by reason of insanity only if he
or she proves that “at the time of the commission of the offense, he
did not know, as a result of a severe mental disease or defect, the
wrongfulness of his acts.” Former R.C. 2901.01(N); 2901.05.
Four experts testified for the defense, and one
for the state. In his seventh proposition of law, defendant argues
that the panel “simply lost its way in the thicket of expertise.”
Defendant appears to be arguing that he met his burden of proving
the defense of not guilty by reason of insanity by a preponderance
of the evidence and that the trial court's finding to the contrary
was against the weight of the evidence.
Defendant offered the testimony of a clinical
psychologist (Dr. Marc Robert Pagano) and three psychiatrists (Drs.
J. Alexander Bodkin, Paul Jay Markovitz, and Emil F. Coccaro). None
of the defense experts was qualified in the field of forensics. The
rebuttal expert called by the state was a forensic psychiatrist (Dr.
Dr. Pagano examined defendant and diagnosed him
as suffering from intermittent explosive disorder and bipolar
disorder at the time the offenses were committed. Dr. Pagano relied
on accounts by defendant, his family, and defense counsel, and did
nothing to verify the accuracy of the information. He specifically
stated that he was not giving an opinion on the question of legal
Dr. Bodkin also examined defendant and determined
that he suffered from bipolar disorder and intermittent explosive
disorder. He opined that defendant, because of these diseases, did
not know the wrongfulness of his conduct at the time of the murder
and attempted murder. Dr. Bodkin also received all of his
information used to evaluate defendant from the defendant himself,
the defendant's family, and the defense team. He did not believe
that defendant was being untruthful or malingering.
Dr. Markovitz also diagnosed defendant as having
bipolar disorder, intermittent explosive disorder, and attention
deficit disorder. He testified that, based on defendant's conduct,
if he had been treating defendant in the two weeks preceding the
murder, he would have hospitalized him as suicidal. He further
opined that on the day of the incident with Beiswenger, and on the
day of the murder, defendant did not know right from wrong. He based
his analysis on the facts of the case, his interview with defendant,
defendant's lifelong behavior patterns, biochemical studies, and
overview of his life. He also did nothing to verify the information
provided by the defense.
Dr. Coccaro did not examine defendant, but
examined his medical and chemical test results. He concluded that
defendant suffered from bipolar disorder and intermittent explosive
disorder. His testimony echoed the other doctors' testimony
concerning defendant's chemical imbalance. However, Dr. Cocarro
conceded that it was possible for a person with a history of
impulsive aggressive behavior to plan a premeditated, intentional
crime that the person knows is wrong.
Dr. Resnick was the forensic psychiatrist who
testified on behalf of the prosecution. Dr. Resnick explained that a
forensic psychiatrist evaluates people who are in some form of
litigation, either civil or criminal, and the person being evaluated
is in the human sense trying to manage the impression he creates,
whether it is to look disabled, more insane, etc. Therefore, the
forensic psychiatrist, unlike the clinical psychiatrist, does not
take at face value what the evaluee reports, but relies more heavily
on objective evidence, such as police reports, witnesses' reports,
employer reports, and school reports, and does not assume that
everything being said is truthful.
In preparing for his testimony, Dr. Resnick spent
five and a half hours with defendant and another two and three-quarter
hours with him another day. Dr. Resnick interviewed defendant's
mother, father, and girlfriend. He reviewed detailed police reports,
witnesses' reports, police records regarding earlier charges, and
deputies' accounts of assaults made by defendant. He reviewed a
response to a motion to compel the production of records, the
indictment, reports of Drs. Bodkin, Markovitz, Pagano, and Coccaro,
reports of the hospital dietician, and various other medical reports.
Dr. Resnick diagnosed defendant as having
antisocial personality disorder, alcohol abuse, and attention
deficit/hyperactivity disorder of childhood. He further stated that
defendant did not suffer from any mental diseases on the day of the
killing that would meet the Ohio legal test (for insanity) and that
defendant knew the wrongfulness of his conduct. His opinion was that
defendant committed the crimes out of vengeance. Defendant expected
to go to prison, he expected to lose his job, and the court had
already told him that he was not allowed to see his children. Dr.
Resnick stated that while defendant was contemplating suicide, he
decided, in Dr. Resnick's opinion, to kill Ms. Filiaggi.
“The weight to be given the evidence and the
credibility of the witnesses concerning the establishment of the
defense of insanity in a criminal proceeding are primarily for the
trier of the facts.” State v. Thomas (1982), 70 Ohio St.2d 79, 24
O.O.3d 150, 434 N.E.2d 1356, syllabus. The trial panel clearly
expressed what its responsibilities were regarding the findings it
needed to make. The court found that “the defendant has failed to
prove by a preponderance of evidence his claim of insanity at the
time of the acts involved. This Court specifically finds that the
defendant knew of the wrongfulness of his acts in this case.”
Even if the defense experts' diagnoses are taken
as true, Dr. Resnick's testimony (as well as that of lay witnesses)
concerning the defendant's state of mind at the time of the crime,
as well as steps defendant took to evade capture by the police,
indicates that defendant knew the wrongfulness of his conduct.
Dr. Resnick testified that there was no evidence
that defendant was confused at the time of the killing. He parked
around the corner from his ex-wife's house to keep from being seen.
He went to the back door because he knew there was a light by the
front door. He pursued Ms. Filiaggi into the home of a neighbor,
Mutnansky. When in Mutnansky's home, defendant told Mutnansky to
stay in the other bedroom and close the door. Dr. Resnick noted that
this showed that defendant did not want anyone to witness the
killing. This was also evidence that defendant's actions were not an
uncontrolled rage, but a plan aimed at Ms. Filiaggi.
Dr. Resnick indicated that information
contributed by the family could be used to help the clinical experts
to determine whether defendant was suffering from a severe mental
disease, but the issue of whether defendant knew the wrongfulness of
his act would depend in part on his answers regarding his conduct
and other objective police data. From the police reports, Dr.
Resnick obtained additional information not available to the other
experts, indicating the charges against defendant, his checking into
a hotel under a false name, and his changing license plates, etc.
This evidence demonstrates that defendant knew the wrongfulness of
his conduct. In addition, through a telephone call, defendant
learned that the police were tracing his whereabouts by his use of a
money machine card, so he stopped using that card. Dr. Resnick
pointed to this as an example of clear, logical thinking.
Defendant reported no delusions, hallucinations,
or false beliefs that caused him to think that killing Ms. Filiaggi
was the right thing to do. In fact, Dr. Resnick testified that
defendant volunteered to him the statement, “I know right from wrong.”
Defendant expressed no remorse and Dr. Resnick opined that defendant
had revenge for a motive, and not a psychotic motive.
All the defense experts conceded that a person
with the mental conditions that they identified in defendant could
commit a premeditated murder with the knowledge that it was wrong.
We conclude that the evidence clearly showed that defendant did not
suffer from any mental diseases that would qualify for the insanity
defense under Ohio law and that the defendant knew the wrongfulness
of his conduct. Accordingly, we overrule defendant's seventh
proposition of law.
Trial Panel's Opinion
When a sentence of death is imposed, R.C.
2929.03(F) requires that the court or the three-judge panel issue a
separate opinion weighing the mitigating factors and aggravating
circumstances in the case, and stating why the aggravating
circumstances were sufficient to outweigh the mitigating factors. In
his eighth proposition of law, defendant makes generalized
complaints concerning the panel's opinion. But none of defendant's
complaints has merit.
First, defendant argues that the panel, although
making a “generic statement” that the death penalty specifications
charged in the indictment were proven beyond a reasonable doubt,
made the more specific finding that they were supported by
“substantial, credible evidence.” In the trial phase of the case,
the panel found defendant guilty of the three aggravating
circumstances beyond a reasonable doubt. The panel's opinion
specifically states: “The panel finds that the Defendant was found
guilty beyond a reasonable doubt of committing the following
aggravating circumstances: * * *.” (Emphasis added.) The panel then
lists each circumstance and sets forth that there was “substantial
and credible evidence” presented to prove each one. Defendant argues
that this constitutes error because substantial, credible evidence
is not equivalent to proof beyond a reasonable doubt. We do not
agree that the panel's use of the term “substantial, credible
evidence” undermines its specific finding that appellant was guilty
beyond a reasonable doubt.FN2
FN2. The trial court erred in not merging two of
the aggravating circumstances (R.C. 2929.04[A] and [A] );
however, the court of appeals merged them in conducting its
Second, defendant argues that the panel failed to
indicate with sufficient specificity how it determined the weight to
be given each mitigating factor and how it balanced those factors
against the aggravating circumstances. Pursuant to R.C. 2929.03(F),
the trial court was required to state its specific findings as to
the existence of any of the statutory mitigating factors as well as
any other mitigating factors. This is exactly what the panel did.
The panel examined the statutory factors listed in R.C. 2929.04(B),
and defendant's history, character, and background. The panel
assigned weight to the factors it found present in defendant's case.
Defendant's complaint is that the panel did not
explain how it determined the weight given to the factors considered.
However, there is no requirement that the panel explain how it
decides how much weight to give to any one factor. The weight, if
any, given to a mitigating factor is a matter for the discretion of
the individual decisionmaker. State v. Fox (1994), 69 Ohio St.3d
183, 193-194, 631 N.E.2d 124, 132; State v. Mills (1992), 62 Ohio St.3d
357, 376, 582 N.E.2d 972, 988.
Finally, defendant argues that the panel
incorrectly treated its conclusion that the offense was planned and
calculated as a nonstatutory aggravating circumstance. Defendant
reaches this conclusion by citing the portion of the opinion in
which the panel sets forth the reasons why the aggravating
circumstances outweigh the mitigating factors: “The evidence showed
that the Defendant's actions were planned and calculated.” The
panel's conclusion came at the end of a lengthy recitation of the
facts of the case. Indeed, the evidence did show that defendant's
actions were planned and calculated. But, given the context of the
sentence in the whole of the opinion, nothing leads us to believe
that the panel weighed this as an additional aggravating
In Fox, 69 Ohio St.3d at 192, 631 N.E.2d at 131,
this court specifically admonished trial courts to “carefully comply
with every specific statutory requirement of R.C. 2929.03(F).” Here,
the panel did. Based on all the foregoing, we overrule this
proposition of law.
Scope of Proportionality Review
In his ninth, tenth, and eleventh propositions,
defendant asks the court to revisit State v. Steffen (1987), 31 Ohio
St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus,
concerning the universe of cases to be considered by an appellate
court when conducting the proportionality review required by R.C.
2929.05(A). Defendant presents no new arguments concerning this
issue and, therefore, based upon Steffen, these propositions are
overruled. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d
Constitutionality of the Death Penalty
Defendant argues that Ohio's capital sentencing
scheme violates various provisions of the United States and Ohio
Constitutions. This court has examined and disposed of these same
issues in numerous cases. See State v. Jenkins (1984), 15 Ohio St.3d
164, 15 OBR 311, 473 N.E.2d 264; State v. Sowell (1988), 39 Ohio St.3d
322, 336, 530 N.E.2d 1294, 1309; State v. Steffen, supra; State v.
Grant (1993), 67 Ohio St.3d 465, 483, 620 N.E.2d 50, 69; State v.
Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768,
paragraph six of the syllabus; State v. Lewis (1993), 67 Ohio St.3d
200, 206, 616 N.E.2d 921, 926; State v. Buell (1986), 22 Ohio St.3d
124, 22 OBR 203, 489 N.E.2d 795; State v. Phillips (1995), 74 Ohio
St.3d 72, 656 N.E.2d 643; State v. Coleman (1989), 45 Ohio St.3d
298, 308, 544 N.E.2d 622, 633; State v. Smith, supra. Thus, we
overrule defendant's twelfth proposition of law.
INDEPENDENT SENTENCE REVIEW
Defendant was convicted of aggravated murder
committed with prior calculation and design. He was also convicted
of three separate aggravating circumstances: (1) that the offense
was committed for the purpose of escaping detection, apprehension,
trial, or punishment for another offense committed by defendant (R.C.
2929.04[A] ); (2) that the offense was part of a course of
conduct involving the purposeful killing of or attempt to kill two
or more persons by defendant (R.C. 2929.04[A] ); and (3) that the
victim of the offense was a witness to prior offenses by defendant
and was purposely killed to prevent her testimony in a criminal
proceeding concerning those prior offenses (R.C. 2929.04[A] ).
The court of appeals merged the R.C. 2929.04(A)(3) and (A)(8)
factors, leaving the 2929.04(A)(5) and (A)(8) factors.
This court, as part of the independent review
mandated by R.C. 2929.05(A), must determine whether the evidence
supports the trial court's findings of the aggravating circumstances
of which the defendant was found guilty. We find that the state
clearly met its burden on both aggravating circumstances.
Both the state and federal Constitutions prohibit
conviction of any person except upon proof of guilt beyond a
reasonable doubt. In examining claims based upon insufficient
evidence, a reviewing court will ask whether after viewing the
probative evidence and inferences reasonably drawn therefrom in the
light most favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the offense beyond a
reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
492; State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d
132. The test is whether there is “substantial evidence upon which a
[factfinder] could reasonably conclude that all the elements of an
offense have been proven beyond a reasonable doubt.” Eley at
R.C. 2929.04(A)(8) specifically provides that the
“victim of the aggravated murder was a witness to an offense who was
purposely killed to prevent the victim's testimony in any criminal
proceeding * * * [or] was purposely killed in retaliation for the
victim's testimony in any criminal proceeding.” (Emphasis added.)
While there had been ongoing hostility between
defendant and Ms. Filiaggi, defendant did not kill Ms. Filiaggi
until she and her fiancé, Eric Beiswenger, filed charges against
defendant. Defendant assaulted both of them on December 19, 1993,
and Ms. Filiaggi and Beiswenger had audio-recorded the assault. Ms.
Filiaggi brought a complaint for domestic violence and Beiswenger
brought a complaint for felonious assault. Ms. Filiaggi had
witnessed the felonious assault against her fiancé and the domestic
violence against her by defendant. A grand jury indicted defendant
for both crimes on December 28, 1993. Further, Ms. Filiaggi and
Beiswenger brought a complaint against defendant for attempted
vandalism, criminal trespassing, and intimidation after an incident
on January 20, 1994, when defendant threw a bottle at their living
room window. Ms. Filiaggi had also videotaped the defendant throwing
the bottle at her house. Similarly, the state could have called Ms.
Filiaggi as a witness at defendant's trial on these charges. Two
days after the bottle-throwing incident, defendant purchased a
semiautomatic pistol. Two days after that, defendant murdered Ms.
Filiaggi on January 24, 1994.
Defense counsel attempted to portray defendant as
suicidal, claiming that he did not intend to kill Ms. Filiaggi, but
only to take his own life in front of her. We find that defendant's
actions belie that theory. On January 24, 1994, defendant took out a
$1,000 cash advance on his Visa card. Defendant left $600 or $700
with his girlfriend, Tracey Jones. The record does not show what the
defendant did with the balance of the cash advance. After he
murdered his ex-wife, defendant attempted to kill his ex-father-in-law
and then fled. Defendant took another $1,000 cash advance on his
Visa, switched license plates with a stolen car, rented a car at an
airport, and registered at a hotel under a false name. We conclude
that this evidenced defendant's plan to flee the jurisdiction after
murdering the key witness, Ms. Filiaggi.
We find that the state presented sufficient
evidence to prove that the filing of these complaints was one of the
reasons that defendant killed Ms. Filiaggi. The law does not require
it to be the sole reason. Despite the long history of hostilities,
there was never any physical attempt on Ms. Filiaggi's life until
after she brought the charges. In addition, defendant stated twice
to Ms. Filiaggi at the time of the shootings that “[t]his will teach
you * * * to fuck with me.” This evidence, along with the closeness
in time to the filing of the complaints, creates a strong inference
that supports the state's theory of an attempt to avoid criminal
responsibility by killing a witness. In addition, the evidence also
supports the theory that defendant killed Ms. Filiaggi in
retaliation for her testimony in a criminal proceeding, i.e., the
bringing of the complaint. Before he murdered Ms. Filiaggi, he told
her twice, “This will teach you * * * to fuck with me.” Consequently,
we find that the state proved this aggravating circumstance beyond a
We now examine the evidence supporting the
aggravating circumstance that Ms. Filiaggi's murder was part of a
course of conduct. The evidence clearly shows that defendant
purposely killed Ms. Filiaggi and then proceeded to the home of Ms.
Filiaggi's parents. Ms. Filiaggi's stepfather, Delbert Yepko,
answered the door. Defendant asked him if he was ready to die, said,
“I'm going to kill you,” and then aimed the gun at him. Had Yepko
not used the pepper spray against defendant, Yepko would most likely
have also been killed. This aggravating circumstance is also
supported by sufficient evidence to make defendant death-eligible.
Nothing in the nature and circumstances of the
offense is mitigating. Defendant was angry at Ms. Filiaggi for the
trouble she was allegedly causing him. He perceived that she was
antagonizing him, using his children to punish him, and always
trying to get more money out of him. Moreover, Ms. Filiaggi had just
pressed charges against defendant twice and would likely have been a
witness at his trials on these charges. However, Ms. Filiaggi did
nothing to provoke defendant at the time of the murder.
Some mitigating factors are present in
defendant's history, character, and background under R.C.
2929.04(B)(7). His mother and sister testified that when his sister
was ill as a child, defendant stayed by her side and helped to take
care of her. Defendant spent four years in the Army and achieved the
rank of sergeant. He saved money while in the Army, went to college
on the GI Bill, and graduated cum laude. Defendant married Ms.
Filiaggi while still in college, and after the children were born,
he was described as a loving father to them. Throughout college,
defendant supported his family. Defendant maintained fairly steady
employment and paid his child support at the time the crime occurred.
These factors are entitled to some weight. See, generally, State v.
Reynolds (1998), 80 Ohio St.3d 670, 686-687, 687 N.E.2d 1358, 1374;
State v. Getsy (1998), 84 Ohio St.3d 180, 207, 702 N.E.2d 866, 891;
State v. Mitts (1998), 81 Ohio St.3d 223, 236, 690 N.E.2d 522, 533.
We must now determine under R.C. 2929.04(B)(3),
whether at the time of committing the offense, defendant, 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 the law. The defense experts during the trial
phase claimed that defendant suffered from bipolar disorder and
intermittent explosive disorder. This diagnosis was based on
testimony of family members who related incidents in defendant's
past concerning his allegedly uncontrollable temper and his
propensity for violence. From the age of five, defendant would act
aggressively with very little provocation. When defendant was in the
second grade, he hit his teacher. He then began counseling, which
continued for a three-year period, with very little improvement. The
court heard about other incidents concerning altercations he was
involved in throughout the course of his life.
Defendant's parents testified that he would
always express remorse and take responsibility for these rages after
they had occurred, but he did not seem able to control himself at
the time. His brother indicated that defendant would not incite
fights, but it would not take much to get him fighting.
While the defense witnesses portrayed the
defendant's anger problems as uncontrollable, Dr. Phillip Resnick
testified that defendant has the ability to control his aggression
if it benefits him, or use violence to achieve a purpose. Dr.
Resnick explained that defendant engaged in two types of aggression:
impulsive aggression and controlled aggression. The impulsive
aggression was evidenced by defendant going into a rage and losing
However, there were numerous examples of
defendant's ability to control his aggression. For example,
defendant's mother relayed to Dr. Resnick that when defendant was a
child, if he wanted the remote control for the TV and one of his
sisters would not give it to him, he would punch her and take it.
Dr. Resnick explained that this behavior is not rage, but using
aggression to accomplish a purpose.
Another example of defendant's ability to control
his aggression is his history in the military. Dr. Resnick indicated
that the defendant told him that because of the consequences, he
would walk away from many fights because the military is a more
controlled society with regard to consequences. Dr. Resnick
testified that defendant behaved similarly while on the job, i.e.,
did not get into fights, because he knew that there would be serious
consequences. Therefore, when defendant was more likely to “get away
with it,” he was more likely to act on impulse. However, if he was
fearful of facing the consequences, he was able to control his
As mentioned previously, four experts testified
for the defense regarding defendant's mental condition at the time
of the crimes. Dr. Pagano diagnosed defendant with bipolar disorder
and intermittent explosive disorder. First, Dr. Pagano testified
that in the manic phase of bipolar disorder, defendant would be more
impulsive and more easily provoked. Again, as mentioned above, Dr.
Pagano also testified that he did not read any police reports, and
that he relied on the accounts by the defendant, his family, and
defense counsel. In addition, he did nothing to verify the accuracy
of this information.
Second, Dr. Bodkin also testified that he
believed that defendant suffered from bipolar disorder and
intermittent explosive disorder. In addition, Dr. Bodkin believed
that defendant suffered from attention deficit disorder. Again, Dr.
Bodkin received all of his information used to evaluate defendant
from the defendant himself, the defendant's family, and the defense
Third, Dr. Markovitz testified that at the time
of the offenses, defendant suffered from bipolar disorder, attention
deficit disorder, and intermittent explosive disorder. Dr. Markovitz
testified that he did not believe that defendant was aware of or had
the ability to reflect on what he was doing at the time he murdered
Finally, Dr. Coccaro also concluded that
defendant suffered from intermittent explosive disorder and bipolar
disorder. Again, as noted above, Dr. Coccaro testified that he also
had done nothing to independently verify the information he reviewed.
Instead, he relied on the reports of Drs. Markovitz and Bodkin.
Significantly, Dr. Coccaro conceded that it was possible for a
person with a history of impulsive aggressive behavior to plan a
premeditated, intentional crime that the person knows is wrong.
Dr. Resnick, the only forensic psychiatrist to
testify at the trial, testified on behalf of the prosecution. Based
on his interviews, reviews of police records, witness reports,
deputy accounts, and other documents mentioned above, Dr. Resnick
made three diagnoses: antisocial personality disorder, alcohol
abuse, and attention deficit/hyperactivity disorder of childhood.
Dr. Resnick disagreed with the conclusion that
defendant suffered from intermittent explosive disorder. Instead,
Dr. Resnick believed that defendant suffered from antisocial
personality disorder. Dr. Resnick explained that there is a specific
statement under the criteria for intermittent explosive disorder in
the DSM IV manual that says that if the violence can be explained by
another disease, such as antisocial personality, then the diagnosis
of intermittent explosive disorder may not be made. “It's [intermittent
explosive disorder] a weaker diagnosis. It's only if someone does
not have others, or antisocial personality.”
Dr. Resnick explained to the court that with
intermittent explosive disorder, the outbursts are out of proportion
to the stimulation. Continual physical fights are much more
characteristic of antisocial personality disorder, and not
characteristic of intermittent explosive disorder. Because defendant
had numerous examples of controlled aggression, he met the category
of antisocial personality disorder, rather than intermittent
Dr. Resnick arrived at his diagnosis of
antisocial personality disorder by evaluating defendant against the
criteria in the DSM IV. Dr. Resnick testified that the evidence went
beyond that recommended by the manual necessary to make the
diagnosis. For example, Dr. Resnick related specific evidence of
defendant's antisocial personality. This included defendant's
conduct disorder as a child, which was evidenced by his “initiation
of physical fights, being physically cruel to people, vandalism,
shoplifting, running away from home, truancy, bullying, use of a
weapon (knife), and deliberate destruction of property.”
Further evidence of antisocial personality
included defendant's adult unlawful behavior, impulsivity,
aggressiveness, indicated by his approximately one hundred physical
fights, reckless driving, and lack of remorse, as indicated by
rationalizing his behavior and by his mother saying that he had no
remorse after getting into physical fights.
In addition, Dr. Resnick testified that the
defendant's mother told him that several times she heard defendant
on the phone with his ex-wife, Ms. Filiaggi, and, one time, after
concluding the call, he said, “I'm going to kill her one of these
days.” Dr. Resnick noted the vengeance of defendant when he said to
Ms. Filiaggi before he shot her, “This will teach you * * * to fuck
with me.” Dr. Resnick stated that it was his belief that this showed
that defendant had a rational motive rather than a psychotic motive.
Dr. Resnick noted that defendant had admitted to
Dr. Pagano that while he was feeling suicidal before the act, he
thought about taking out others with whom he had grievances and “had
done him wrong.” That included judges, in an earlier case, and
police officers with whom he had trouble in the past. Dr. Resnick
noted that on the day of the murder, although defendant had one gun
available to him, before leaving for Ms. Filiaggi's home he insisted
on taking a second gun with him. Dr. Resnick opined that this did
not mesh with the suicide theory.
Dr. Resnick testified that there was no evidence
that defendant was confused or suffering from delusions or
hallucinations that suggested to him that killing Ms. Filiaggi was
the right thing to do. At the time of the killing, his activities
were goal-directed and effective. He parked his car not in front of
Ms. Filiaggi's house, but around the corner to keep from being seen.
He went to the back door because there was a light by the front door.
He chased Ms. Filiaggi into the neighbor's house, suggesting that he
was pursuing her, which is goal-directed rather than impulsive
behavior. As mentioned above, defendant told the neighbor to stay in
the other bedroom and close the door. Again, this demonstrates
defendant's ability to control the situation and to control anger.
Dr. Resnick noted that when defendant drove to
his father-in-law's home after shooting Ms. Filiaggi, it showed
premeditation, rather than impulsivity, because he actually drove a
distance for that purpose. Further, his steps taken after the
murders also suggested that defendant knew he was committing illegal
and wrongful acts. Dr. Resnick pointed to the acts of avoiding
police, switching license plates with stolen ones, renting a car at
an airport, registering in a hotel under a false name, and keeping
his calls to his parents' home short because he believed their phone
Dr. Resnick found the defendant to be an above
average, intelligent man. He testified that defendant had already
spent time in jail for past crimes, knew he was violating a
restraining order, lied to obtain a 9 mm gun, and volunteered to Dr.
Resnick that he knew right from wrong.
Defense counsel pressed Dr. Resnick again about
the antisocial personality disorder issue. Defense counsel noted
that defendant had set and met goals such as graduating from college
with honors, marrying, and supporting his family. Defense counsel
challenged that these behavior traits are inconsistent with a
sociopathic personality. Dr. Resnick disagreed and noted that the
fact that a person succeeds does not imply that he or she is not
sociopathic. Dr. Resnick continued to disagree with the prior
diagnoses of bipolar disorder and intermittent explosive disorder.
Dr. Resnick completely disagreed with the defense
proposition that if a person suffers from intermittent explosive
disorder and bipolar disorder, he or she may not know right from
wrong. In fact, Dr. Resnick interviewed defendant, and then after
reviewing the medical reports of the defense experts, he went back
and systematically asked specific, detailed questions of defendant,
his parents, and his girlfriend regarding issues like bipolar
disorder, depression, attention deficit disorder, and explored the
criteria for those conditions. Dr. Resnick also testified that the
diagnostic criteria for attention deficit disorder do not include
There was testimony by the defense experts that
defendant had a chemical imbalance in his brain. Specifically, some
of the defense experts testified that defendant possessed low
seratonin levels. Seratonin is a neurotransmitter in the brain that
functions as a behavioral inhibitor. One defense expert testified
that if seratonin is low and people have impulsive aggressive
problems, it would stand to reason, that if you enhance their
seratonin activity, it should make them less impulsive and
However, Dr. Resnick testified that whether it
was impulsive or premeditated, defendant could still know the
wrongfulness of his conduct, whatever the diagnosis (bipolar,
intermittent explosive, or antisocial personality disorder). In fact,
as the court of appeals noted, all of the defense experts conceded
that a person with the mental conditions that they identified in
defendant could commit a premeditated murder with the knowledge that
it was wrong.
Under R.C. 2929.04(B)(3), defendant was required
to prove that “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 the law.”
All of the defense experts conceded, as the court
of appeals noted, that a person with the mental conditions that they
identified in defendant could commit a premeditated murder with the
knowledge that it was wrong. In addition, we agree with the court of
appeals that the claims that defendant had successfully completed
college, served in the military, maintained employment, and cared
for his children contradict the claim that he had a mental disease
or defect so severe that it rendered him unable to control himself
or unable to conform his conduct to the law. Accordingly, we give
this factor slight weight under R.C. 2929.04(B)(3).
Considering the mitigating factors set forth
above, we find that the aggravating circumstances outweigh, beyond a
reasonable doubt, the factors in mitigation of the death sentence.
As a part of the appropriateness determination, we must compare this
case to other cases reviewed by this court containing the course-of-conduct
specification to determine if the death sentence in this case is
In State v. Allard (1996), 75 Ohio St.3d 482,
501-502, 663 N.E.2d 1277, 1293-1294, the defendant was convicted of
killing his ex-wife and one of his children. Allard presented
evidence that he was raised in foster homes and was sexually abused
as a child. Allard was remorseful and there was evidence he would
adapt well in prison. Like defendant, he also presented evidence
that he suffered from bipolar disorder. The court affirmed the death
In State v. Awkal (1996), 76 Ohio St.3d 324,
338-339, 667 N.E.2d 960, 972-973, the defendant killed his wife and
brother-in-law. There was mitigating evidence that Awkal was raised
in a poor background and did not finish school. Awkal's father was
physically abusive. Awkal was gainfully employed, had no prior
criminal history, and expressed remorse for the killing. Further,
Awkal was suffering from psychological disorders. The court affirmed
the death sentence.
In State v. Sowell, 39 Ohio St.3d at 336-337, 530
N.E.2d at 1309-1310, the defendant killed one person and attempted
to kill a second. Sowell presented mitigating evidence that the
killing was the result of provocation and that he was intoxicated
when it occurred. The court affirmed the death sentence.
State v. Claytor (1991), 61 Ohio St.3d 234,
245-246, 574 N.E.2d 472, 481-482, involved the killing of two
hospital guards. Claytor had no criminal convictions. The compelling
factor in that case was the existence of the R.C. 2929.04(B)(3)
factor, that Claytor, because of a mental disease or defect, lacked
the substantial capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law.
The court reversed Claytor's death sentence.
This case is more similar in facts to Allard,
Awkal, and Sowell. The mental disorders present in this case are not
the severe mental defects found in Claytor. As such, we find that
the death sentence in this case is not disproportionate when
compared to similar cases.
For the reasons stated herein, we affirm
defendant's conviction for aggravated murder and his sentence of
death. We also affirm his convictions and sentences for felonious
assault and domestic violence in Lorain Common Pleas case No.
93CR044726. However, we reverse the judgment of the trial court in
case No. 94CR044866 and the verdicts and/or the sentences imposed
for attempted aggravated murder, aggravated burglary, and kidnapping,
and remand the cause to the three-judge panel for final resolution
consistent with our opinion, supra, in defendant's fourth
proposition of law.
Judgment affirmed in part, reversed in part and
MOYER, C.J., DOUGLAS, RESNICK and FRANCIS E.
SWEENEY, Sr., JJ., concur. PFEIFER, J., concurs in judgment only.
COOK, J., concurs in part and dissents in part.
Filiaggi v. Bagley, 445 F.3d 851 (6th
Cir. 2006). (Habeas)
Background: Following affirmance on direct appeal
of petitioner's state court conviction for aggravated murder and
death sentence, 86 Ohio St.3d 230, 714 N.E.2d 867, he filed petition
for writ of habeas corpus. The United States District Court for the
Northern District of Ohio, Solomon Oliver, Jr., J., denied petition.
Holdings: The Court of Appeals, Alice M.
Batchelder, Circuit Judge, held that: (1) waiver of a jury trial was
not rendered unknowing, involuntary, or unintelligent by fact that
petitioner was accidentally shocked with stun belt and was on
medication as a result, and (2) petitioner failed to establish that
he was incompetent to stand trial. Affirmed. Cole, Circuit Judge,
filed dissenting opinion.
ALICE M. BATCHELDER, Circuit Judge.
Petitioner James J. Filiaggi, an Ohio death-row prisoner, appeals a
district court order denying his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. The district court granted a
certificate of appealability (“COA”) on two claims. In his first
claim, Filiaggi argues that his jury waiver was invalid because he
was incompetent at the time it was made and because the trial court
did not engage him in an adequate colloquy. Second, Filiaggi argues
that the trial court should have found him incompetent during his
trial. Because we conclude that the Ohio Supreme Court reasonably
interpreted the facts of the case and reasonably applied clearly
established federal law, we AFFIRM the district court's denial of
Filiaggi's petition for a writ of habeas corpus.
The story of Filiaggi's crime, which is not
relevant to his petition, is set forth in the Ohio Supreme Court's
opinion, State v. Filiaggi, 86 Ohio St.3d 230, 714 N.E.2d 867,
870-72 (1999). Our account begins with Filiaggi's first appearance
On the first day of Filiaggi's trial, the stun
belt used to restrain him as he was being transported to court
misfired, resulting in what Filiaggi refers to as his “electrocution.”
Inasmuch as Filiaggi remains among the living, we will refer to the
incident as an electrical shock. Afterward, Filiaggi was visibly
shaken, his back was burned, and he suffered muscle spasms.
The jail physician gave him ten milligrams of
valium to ease his pain and to relax his muscles. Because of this
incident, the court delayed the start of his trial until the
afternoon. During the afternoon session, Filiaggi waived his right
to a jury trial and elected instead to be tried to a three-judge
The next day, at the behest of defense counsel,
the trial court ordered an evaluation of Filiaggi's competence to
stand trial. Dr. Thomas Haglund examined Filiaggi that afternoon.
The court held a competency hearing the following day, and Dr.
Haglund testified, albeit it somewhat hesitantly, that Filiaggi
understood the proceedings against him, and was able to consult with
his counsel and to assist them in preparing his defense. The court
therefore held that Filiaggi was competent to stand trial.
Filiaggi's counsel disagreed and requested reevaluation. The court
refused the request and the trial proceeded. The panel eventually
found Filiaggi guilty and sentenced him to death.
After procedurally exhausting his direct appeal
and post-conviction claims in the State of Ohio, Filiaggi filed a
petition for writ of certiorari in the United States Supreme Court.
The petition was denied. Filiaggi v. State, 528 U.S. 923, 120 S.Ct.
287, 145 L.Ed.2d 240 (1999). In January 2001, Filiaggi filed this
petition in the district court for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, asserting ten constitutional violations. The
district court denied the writ but granted a COA on Filiaggi's first
two claims: whether he had knowingly, voluntarily and intelligently
waived his right to a jury trial and whether he had been competent
at the time of his trial. Filiaggi did not attempt to expand the COA
in this court, and he appeals only the two claims for which the
district court granted a certificate.
II. Jury Waiver
Filiaggi argues that his waiver of a jury trial
was not knowing, voluntary or intelligent. Specifically, he asserts
that, due to the electrical shock, he was not competent at the time
of the waiver. He also asserts that his attorneys did not inform him
that the waiver would make certain errors, such as evidentiary
errors, essentially unreviewable on appeal. Finally, he argues that
the trial court did not engage him in a sufficient colloquy.
Because the right to a jury trial is fundamental,
Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d
491 (1968), Filiaggi's waiver of that right-to be valid-must have
been knowingly, intelligently and voluntarily made. Edwards v.
Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
The clearly established Supreme Court precedent
at the time that Filiaggi waived his right to a jury trial, as well
as at the time that the Ohio Supreme Court held that his waiver was
valid, required only that the waiver be consented to by the
government and sanctioned by the court, and that it *855 reflect the
“express and intelligent consent of the defendant.” Patton v. United
States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930). As the
Court explained a decade later:
The Patton decision left no room for doubt that a
determination of guilt by a court after waiver of jury trial could
not be set aside and a new trial ordered except upon a plain showing
that such waiver was not freely and intelligently made. If the
result of the adjudicatory process is not to be set at naught, it is
not asking too much that the burden of showing essential unfairness
be sustained by him who claims such injustice and seeks to have the
result set aside, and that it be sustained not as a matter of
speculation but as a demonstrable reality.
Adams v. United States ex rel. McCann, 317 U.S.
269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Filiaggi therefore has
the burden of demonstrating that he did not expressly and
intelligently consent to waive a jury trial and that the Ohio
Supreme Court's judgment to the contrary is either an unreasonable
application of clearly established Supreme Court precedent or
contrary to that precedent, or resulted from an unreasonable
interpretation of the evidence presented to the state courts.
The Ohio Supreme Court held in State v. Filiaggi,
86 Ohio St.3d 230, 714 N.E.2d 867 (1999), that Filiaggi's claims
that his waiver was not valid were meritless. The court first held
that there was no requirement that a trial court “interrogate a
defendant in order to determine whether he or she is fully apprised
of the right to a jury trial;” that the trial court's failure to
make inquiry of Filiaggi as to whether he understood the presumption
of correctness that attached to the findings of the three-judge
panel was therefore not error; and that the trial court's reading
aloud of the written waiver and ensuring that it reflected
Filiaggi's desire, was all that was required. Id. at 875. The court
went on to hold that:
The record supports defendant's claim that he was
shocked by the stun belt; however, the record does not indicate the
voltage level. The record also indicates that the trial judge stated:
“The defendant is shaken, and he may be on Valium.” The court took a
recess directly after this incident for the remainder of the morning,
and the court then reconvened at 1:30 p.m. Immediately upon
reconvening, the parties addressed the subject of the waivers and
made opening statements. Nothing indicates that defendant was unable
to make a decision concerning the jury waiver.
Defendant was represented by three attorneys, one
of whom was a physician, and they never indicated that defendant
would not be able to waive his right to a jury. Further, while
defense counsel requested a mistrial and additional evaluations of
defendant during the course of the trial alleging incompetence, they
never asked the court to revisit the jury waiver issue. The record
does not support defendant's claim that his waiver was not knowing,
intelligent, and voluntary. Therefore, we overrule this proposition
of law. Id. Filiaggi makes three arguments to the contrary.
Filiaggi first argues that the electrical shock
left him too disoriented to make a valid waiver of his right to a
trial by jury. He cites two items in evidence: the trial court's
observation that he appeared shaken and had taken Valium following
the stun belt incident, and his own affidavit, made nearly a year
after the stun-belt incident, which states that he was “severely
disoriented” at the time of the waiver.
The affidavit also states, “Had I been conscious
of what I was doing at the time, I would have wanted further
clarification from the Court of the consequences of my jury waiver.”
The record, however, supports the court's findings, and Filiaggi has
not rebutted them by clear and convincing evidence.
Filiaggi next argues that his waiver was not
intelligent and voluntary because his counsel failed to discuss with
him the appellate consequences of waiving a jury trial. Specifically,
he points to an affidavit of attorney James Burge, in which Burge
stated that he did not explain to Filiaggi that “certain errors
which might be deemed prejudicial by an appellate court if they
occurred before a jury would be deemed harmless when they occur
before a judge or a panel of three judges.” Burge also stated that,
to the best of his knowledge, none of Filiaggi's other attorneys had
explained this point to Filiaggi.
We are aware of no Supreme Court precedent-and
Filiaggi points to none-that conditions the validity of a jury
waiver upon a defendant's understanding of the appellate process.
Furthermore, Filiaggi has produced no evidence to suggest that he
did not understand the basic workings of a jury trial. He does not
allege that he was unaware of the substantive and procedural
difference between a bench trial and jury trial when he gave his
Furthermore, the evidence that he points tohis
own affidavit and the affidavit of his attorney, James Burge-prove
only that Filiaggi was unaware of the harmless error doctrine.
Because evidentiary errors affected by the doctrine are, by
definition, harmless, Filiaggi's lack of familiarity with the
doctrine does not affect the validity of his waiver.
Finally, Filiaggi argues that the trial court did
not engage him in a sufficient colloquy during the waiver proceeding.
We have held, under the less-deferential pre-AEDPA standard, that
“[t]here is no constitutional requirement that a court conduct an on
the record colloquy with the defendant prior to the jury trial
waiver.” United States v. Martin, 704 F.2d 267, 274 (6th Cir.1983).
In the case at hand, the trial court engaged in the following
colloquy with Filiaggi:
Court: And you waive your constitutional right to
a jury trial?
Court: I have the same entry, “I, James J.
Filiaggi, defendant in the above captioned cause, hereby voluntarily
waive and relinquish my right to a trial by jury and would elect to
be tried by a Judge of the Court in which said cause may be pending.
I fully understand that under the laws of this State I have a
Constitutional right to a trial by jury.” And your signature appears
there. Is that your signature?
Defendant: Yes, sir.
Court: Is it your desire to have the aggravated
murder tried by three judges, Judge Kosmas [sic] Glavas and Judge
Frank Horvath and myself, and it will require three judges to render
a verdict in this matter and that is the one count. Is this your
Filiaggi points to no Supreme Court precedent-clearly
established at the time the Ohio Supreme Court ruled that his waiver
was valid or, for that matter, today-requiring any colloquy, much
less more explicit colloquy than was conducted here. Filiaggi argues
only that he was unaware of the consequences of his waiver on
appeal; he does not claim that he did not understand that he was
giving up the right to be tried by a jury.
The Ohio Supreme Court concluded that Filiaggi's
waiver of his right to trial by jury was knowing, voluntary and
intelligent. Filiaggi has failed to demonstrate that the court's
judgment is contrary to or an unreasonable application of Supreme
Court precedent that was clearly established*857 at the time that
judgment was entered, or that the Ohio Supreme Court's judgment was
based on an unreasonable interpretation of the evidence presented in
the state court proceedings. Accordingly, we affirm the district
court's denial of habeas relief on this ground.
Having concluded that the State did not err in
finding Filiaggi's jury waiver constitutionally sufficient, we now
turn to the question of whether Filiaggi was competent to stand
trial. Filiaggi argues that continued medical and psychological
trauma from the stun belt shock required the trial court to conduct
multiple evaluations of his competency.
Dr. Haglund, a clinical psychologist, evaluated
Filiaggi's competence on the day following the stun belt incident.
Filiaggi and Dr. Haglund discussed the stun belt incident,
Filiaggi's incarceration, his court proceedings and his treatment
for mental disorders. During that interview, Filiaggi was “mentally
alert” and “oriented.” Filiaggi, 714 N.E.2d at 873. In addition, Dr.
Haglund testified that Filiaggi was able to understand the nature
and object of the proceedings against him, to consult with his
lawyers and to assist in preparing and presenting his defense. As a
result, the trial court concluded that Filiaggi was competent to
Although Filiaggi's counsel challenged his
competence a number of other times during the trial, they presented
no additional information regarding his behavior until they filed a
motion for a new trial. Filiaggi, 714 N.E.2d at 874-75. In an
affidavit filed with that motion, a psychiatrist who examined
Filiaggi four days after the stun-belt incident stated that it was
his “unequivocal opinion” that Filiaggi was incapable of
participating in his own defense “for at least two days” following
his the shock. The psychiatrist described Filiaggi as “aggressive,
confused, disoriented, and often nonresponsive to simple verbal
Filiaggi also submitted affidavits of two of his
three attorneys stating that he was “foaming at the mouth” and often
in “an agitated, catatonic stupor.” The trial court gave little
weight to the submissions and noted that at the time of his jury
waiver, Filiaggi “was functioning with all of his faculties and with
the blessing of all three of his lawyers.” Order Denying Motion for
a New Trial, January 17, 1996, at 2. Noting that defense counsel had
repeatedly claimed that Filiaggi was incompetent to stand trial but
had never brought to the court any evidence to support those claims,
the court reviewed the evidence and found that Filiaggi was
During [the second day of the trial] the State
represented that the defendant attended the trial the day before,
was functioning normally, and had his breakfast. The state argued
that there was no representation from the defense that the defendant
was not able to understand the conversations he had with Mr. Burge
regarding coming to court or voluntarily waiving his absence.
The State argued on the record that the defendant
was able to visit with and confer with his minister, and that the
defendant was functioning normally until it was time to come to
court. The State related that the defendant ate at the appropriate
time, and at 10:00 p.m., the night before requested an attorney call
and engaged in a very lengthy conversation with his lawyer. Again,
the defense did not refute these claims ....
The court took testimony from a deputy that was
guarding the defendant during the noon recess. The deputy informed
the court that the defendant was doing stretching exercises, seemed
to be fine, wasn't shaking, was in control of himself, and was
conversing in a normal tone with his lawyers.
The State of Ohio informed the panel at other
occasions during the trial that the defendant was observed by
corrections officers to normally partake in meals, showering,
conversations with other inmates, conversations with other
corrections officers, and request calls to, and converse with his
attorney. Again these representations went unrefuted. The defendant
needed a wheelchair at no time other than coming to court and being
The Ohio Supreme Court, reviewing Filiaggi's
claim as a matter of state law, noted Ohio's standard:
An unqualified suggestion of defendant's
incompetency to stand trial by defense counsel during trial, without
additional objective indications such as, but not limited to,
supplemental medical reports, defendant's conduct at trial or
specific reference to defendant's irrational behavior or the like
does not meet the “good cause shown” standard of R.C. 2945.37.
Filiaggi, 714 N.E.2d at 874 (quoting State v. Chapin, 67 Ohio St.2d
437, 424 N.E.2d 317, 318 (1981)). The court went on to conclude that
the trial court had considered the totality of the evidence in
determining that no new evaluation or hearing on competency was
required, and that the trial court's conclusion was not
“unreasonable, arbitrary, or unconscionable.” Id. at 875.
The due-process right to a fair trial is violated
by a court's failure to hold a proper competency hearing where there
is substantial evidence that a defendant is incompetent. Pate v.
Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
To be adjudged competent, a defendant must have “sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding” and “a rational as well as factual
understanding of the proceedings against him.” Dusky v. U.S., 362
U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam).
Finally, as we noted long ago in Williams v.
Bordenkircher, 696 F.2d 464, 466 (6th Cir.1983), “the [ Pate ] Court
did not prescribe a general standard for determining whether the
trial court should resort to evidentiary proceedings.” We stated the
test as requiring us to determine “whether a reasonable judge,
situated as was the trial court judge whose failure to conduct an
evidentiary hearing is being reviewed, should have experienced doubt
with respect to competency to stand trial.” Id. at 467.
A determination of competence is a factual
finding, to which deference must be paid. Thompson v. Keohane, 516
U.S. 99, 110-11, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). “[E]vidence
of a defendant's irrational behavior, his demeanor at trial, and any
prior medical opinion on competence to stand trial are all relevant
in determining whether further inquiry is required, but ... even one
of these factors standing alone may, in some circumstances, be
sufficient.” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43
L.Ed.2d 103 (1975). “[R]egardless of whether we would reach a
different conclusion were we reviewing the case de novo, the
findings of the state court must be upheld unless there is clear and
convincing evidence to the contrary.” Clark v. O'Dea, 257 F.3d 498,
506 (6th Cir.2001).
After carefully reviewing the record and the
applicable law, we conclude that the Ohio Supreme Court's finding
that Filiaggi was competent during his trial, although the result of
an analysis of Ohio law rather than a constitutional due process
claim, does not result in a judgment that is either contrary to or
an unreasonable application of Supreme Court precedent clearly
established at the time. The judgment does not unreasonably
determine the facts in evidence, and Filiaggi has not rebutted the
factual findings by clear and convincing evidence. See 28 U.S.C. §§
The trial court clearly considered the factors
set out in Drope when it refused to grant Filiaggi an additional
competency hearing and, later, a new trial. Although the evidence
before the court was mixed, evidence in favor of finding Filiaggi
incompetent came solely from Filiaggi's attorneys. Testimony from
persons having custody of Filiaggi indicated that he was competent.
Furthermore, Dr. Haglund's testimony regarding
Filiaggi's mental state was sufficient to satisfy the requirements
enumerated in Dusky. The Ohio Supreme Court considered-albeit not
explicitly-the Drope factors as well as the standard for competence
set out in Dusky, and concluded that Filiaggi had not carried his
burden of demonstrating that he was not competent or that he was
entitled to additional evaluations or hearings.
We cannot say that a reasonable judge,
considering all of the evidence that was before the trial court here
relative to Filiaggi's claims of incompetence, “should have
experienced doubt with respect to competency to stand trial,”
Bordenkircher, 696 F.2d at 467, and we therefore must affirm the
district court's denial of habeas relief on this issue.
For the foregoing reasons, we AFFIRM the judgment
of the district court denying the petition for a writ of habeas