Ohio Supreme Court
THE STATE OF OHIO, APPELLEE,
[93 Ohio St.3d 49.]
Submitted March 27, 2001
Decided August 29, 2001
APPEAL from the Hamilton
County Court of Common Pleas, No. B-9709438.
At approximately 1:30 a.m. on
November 22, 1997, Andre Miles, armed with a
high-powered assault rifle, confronted brothers
Maher and Ziad Khriss in a parking lot in front
of Save-Way II Supermarket in Cincinnati, Ohio
("Save-Way") and demanded money. As Maher and
Ziad put money on the ground and pleaded for
their lives, Miles shot and killed them.
After investigating the
shootings, Cincinnati police concluded that
Miles had been hired to kill Maher. The police
theorized that Maher's wife, Linda Khriss, had
offered to pay defendant-appellant, Ahmad Fawzi
Issa, to kill Maher.
The police believed that
appellant then enlisted Miles to do the killing,
supplied him with the weapon, and arranged the
opportunity. Appellant, Miles, and Linda were
each charged with aggravated murder.
Prior to the murders, Maher
and Linda Khriss owned and operated Save- Way.
In addition to Maher and Linda, Renee Hayes,
Souhail Gammoh, and appellant worked at the
store. Bonnie Willis and her brother Joshua
Willis, who were both teenagers at the time of
the murders, lived with their mother
approximately one block from Save-Way. Because
they often shopped at Save- Way, they were
familiar with the store employees. Miles had
previously lived with the Willis family and was
a close friend of Bonnie and Joshua.
In the two weeks preceding
the murders, two witnesses saw appellant with a
rifle in his apartment. On November 14, Dwyane
Howard, Hayes's husband, went to appellant's
apartment to wake him for work. Appellant
invited Howard in and showed him a military-style
rifle. When Howard asked appellant what he was
going to do with the rifle, appellant's only
response was "a little sneer."
After the murders, appellant
called Howard and told him not to tell anyone
that he had seen appellant with a gun. At
appellant's trial, Howard identified the murder
weapon as being identical to the rifle appellant
had shown him. No more than two weeks before the
murders, appellant's coworker and friend, Gammoh,
while visiting at appellant's apartment, also
saw appellant with a rifle.
A few days before the murders,
Joshua went to Save-Way and saw Miles standing
out in front of the store. Joshua and Miles
started talking, and Miles told Joshua that
appellant was going to pay him to kill somebody.
Miles asked Joshua if he wanted to take part in
the crime for half of the money. Joshua did not
take Miles seriously and told him he was crazy.
On November 20, the Thursday
evening before the Saturday morning murders,
Joshua told Bonnie about his conversation with
Miles. Bonnie also did not believe that Miles
would actually kill someone, because Miles "had
a tendency to * * * talk big." That is, he
talked "about doing a lot of things and never
Linda, Maher, Gammoh, and
Hayes worked late at Save-Way on the evening of
November 21. At approximately 10:00 p.m., Miles
arrived at the store and asked for appellant.
Although appellant was scheduled to work at
10:00 p.m., he was not yet there. Linda drove to
appellant's apartment to wake him, and then she
returned to the store. Appellant arrived around
11:15 p.m. Miles was waiting at the store for
appellant, and when he arrived, appellant and
Miles went outside together to talk.
Around midnight, Maher left
Save-Way with a friend to check on another store
that Maher owned. Maher left his truck in the
Save-Way parking lot and instructed Linda and
appellant to put the keys to the truck near the
right front tire and that Maher would come back
later to get the truck.
At approximately 1:09 a.m.
the Save-Way employees closed the store for the
night. Appellant put the keys near Maher's truck
as he had been instructed.
Appellant's mother was
visiting from Jordan and was with appellant at
the store when it closed. Appellant, his mother,
and Gammoh left the store in appellant's car.
Appellant drove his mother to his apartment, and
then he drove Gammoh home. When appellant
dropped Gammoh off at approximately 1:20 a.m.,
he told Gammoh that he was going back home to
check on his mother but that he might come back
later and take Gammoh to a bar.
Approximately twenty-five to
thirty- five minutes later, appellant returned
to Gammoh's apartment, and they went to a bar
together. After Gammoh heard about the murders,
he asked appellant where he went before he
returned to Gammoh's apartment. Appellant told
Gammoh, "Don't tell the police. Tell them that
we were together all the time."
At approximately 1:26 a.m. on
November 22, Sherese Washington was driving near
Save-Way when she heard gunshots. Frightened,
she stopped her car and turned off the
headlights. She then saw a man run from the Save-Way
parking lot and down Iroll Street (the street on
which Bonnie and Joshua lived).
Sherese went home and called
911. Within four minutes of the shooting,
Cincinnati police officers arrived at Save-Way
and discovered Maher's and Ziad's bodies in the
parking lot. Medical personnel arrived shortly
thereafter but were unable to revive the Khriss
Near the bodies, crime-scene
investigators for the Cincinnati Police found
six 7.62 caliber rifle casings, a broken
beverage bottle, and several $1 bills. A small
crater in the blacktop near Ziad's body and a
fresh gouge in the dirt near Maher's body were
noted by officers as possibly having been made
Officers also documented that
three milk crates had been arranged like steps
behind a dumpster in the parking lot. The police
found this noteworthy because all the other
items behind the dumpster were in disarray, and
the police speculated that the perpetrator may
have arranged these milk crates.
Dr. Lawrence Schulz, a deputy
coroner for Hamilton County, performed autopsies
on Maher and Ziad and testified as to his
findings. Schulz found that a single bullet had
struck the palm of Maher's left hand and
traveled through the back of his hand and then
entered his chest. The bullet then perforated
Maher's lungs and his aorta, causing his death
within a few minutes. Ziad had been shot in the
palm of his right hand and twice in his left arm.
Each bullet that struck his arm traveled through
to his chest.
Joshua testified that around
5:00 p.m. on November 22, Miles called him and
told him that he had killed Maher and Ziad and
that he had put the gun in Bonnie and Joshua's
back yard in a white plastic bag. He told Joshua
not to touch the gun.
The following day, November
23, Miles came to the Willises' home.
Bonnie and Joshua both
testified regarding the conversation they had
Miles told them that
appellant was going to pay him $2,000 for
killing Maher but "[s]ince [Maher's] brother
also got killed that night he had to throw in an
extra $1,500." According to Miles, appellant had
not paid him yet. Miles told the Willises that,
on the night of the shooting, appellant gave
Miles the rifle, which Miles described as an
Miles then sat on milk crates
behind a dumpster outside the store and waited
for Maher to come back for his truck. When Maher
returned with Ziad, Miles confronted them and
demanded money. Maher and Ziad pulled money from
their pockets, dropped it on the ground and
pleaded with Miles not to shoot.
Miles said that when he
reached down for the money, the gun went off and
the beverage bottle that Maher was holding
shattered. Then Miles said he "got trigger happy.
He freaked. He shot them once. He might as well
kill them." While Maher was "still squirming,"
Miles said, he shot him in the head, and then
shot Ziad in the head.
After that, Miles picked up
the money they had thrown down, but said he left
two $100 bills on the ground. Miles said that
after the shooting he ran down Iroll Street, put
the rifle in the Willises' back yard, and then
met appellant in a nearby parking lot and
appellant drove him home.
Bonnie and Joshua noticed
that Miles was wearing new clothes "from head to
toe." Miles said that he "had bought the new
clothes with the money that he got from the two
victims." While describing the killings, Miles
showed "no remorse at all. He was actually
bragging." Miles also told Bonnie and Joshua, "If
anybody knows about this or tells, I'll kill
Miles reiterated that the
rifle was in a white plastic bag in their back
yard and that neither Bonnie nor Joshua should
touch it. Miles promised to come back and remove
the gun. Both Bonnie and Joshua saw an object
wrapped in a white bag in their back yard and
Joshua described it as "shaped like a gun."
A few days later, Joshua went
to Save-Way, and as soon as appellant saw him
appellant asked, "Does anybody know?" Joshua
said, "No, not that I know of." Joshua then told
appellant, "You're going to have to come and get
I don't want to put my family
in this type situation." Although Joshua did not
mention Miles, appellant replied, "Okay. I'll
talk to Andre [Miles] and if Andre don't come
and get it, I will." After a few days, Joshua
noticed the white bag was still in his yard.
Joshua again went to the store and confronted
appellant about it.
Appellant again promised
Joshua that either he or Miles would remove the
Bonnie also went to the store
and told appellant that the gun needed to be
removed from their yard. Appellant told her the
same thing he had told Joshua.
Appellant also told Bonnie to
"[t]ell [Miles] not to come around the store
because the police were investigating, that he
would get in touch with him." A few days later,
Miles removed the gun.
On November 25, while working
at Save-Way, Hayes saw Linda hand appellant two
$1,000 packets in cash and "some other money."
The state theorized that this represented at
least a partial payoff for the killing. The
defense, on the other hand, attempted to show
that this money was deposited in a Save-Way bank
account later that same day.
The bank deposit ticket
entered into evidence, however, indicated that
the money deposited in the Save-Way account on
that day did not include $2,000 in cash. The
defense suggested that Hayes had been mistaken
regarding the amount she saw Linda give
On December 4, police learned
that Miles had admitted to Bonnie and Joshua
that he had committed the murders. Police
arrested Miles that evening, and he confessed to
the crime and sketched a map depicting where he
had disposed of the murder weapon.
Following the map, police
recovered a MAK-90, 7.62 caliber, semiautomatic
rifle. Expert testimony established that the
rifle had fired the fatal bullet extracted from
Maher's body, thus confirming it was the murder
weapon. An attempt to determine who had
purchased the weapon was unsuccessful.
In the same vicinity as the
rifle, police found a banana-style magazine clip
that fit the murder weapon. The clip contained
twelve 7.62 caliber hollow-point rifle bullets.
The same foreign manufacturer made all of the
shells found at the crime scene and the bullets
in the clip. There were no fingerprints on the
rifle, the clip, or the ammunition.
On December 5, officers
executed a search warrant on appellant's
apartment and found a single live 7.62 caliber
bullet in a nightstand drawer in appellant's
bedroom. The manufacturer of this bullet was
different from the manufacturer of the bullets
found in the murder weapon's clip and from the
casings found at the crime scene.
A jury convicted appellant of
the aggravated murder of Maher with a death
penalty specification charging that the offense
was committed for hire.
R.C. 2903.01(A) and
2929.04(A)(2). After a penalty hearing, the jury
recommended the death penalty. The trial court
sentenced appellant to death and an additional
one-year term for a gun specification. This
matter is now before this court upon an appeal
as of right.
Appellant has raised fifteen
propositions of law. See Appendix. We have
reviewed each and have determined that none of
those propositions justifies reversal of
appellant's conviction for aggravated murder.
Pursuant to R.C. 2929.05(A), we have also
independently weighed the specified aggravating
circumstance against the mitigating evidence and
reviewed the death penalty for appropriateness
and proportionality. For the reasons that follow,
we affirm appellant's conviction and death
Vienna Convention on Consular Relations
Appellant, a Jordanian national, asserts in
his first proposition of law that his rights
guaranteed by the Vienna Convention on Consular
Relations ("VCCR") were violated when arresting
officers failed to inform him that as a foreign
national he had a right to meet with consular
officials from Jordan.1 Appellant did not raise
this issue at trial but now contends that this
alleged violation of his rights rendered his
postarrest statement inadmissible. Because
testimony was admitted regarding his postarrest
statement, appellant urges this court to reverse
his conviction and remand this cause for a new
The VCCR is a seventy-nine-article treaty to
which both the United States and Jordan are
signatories. The Vienna Convention on Consular
Relations, April 24, 1963, TIAS 6820, 21 U.S.T.
77, 596 U.N.T.S. 261. It was negotiated in 1963
and ratified by the United States in 1969.
Article 36 of the VCCR provides:
"1. With a view to facilitating the exercise
of consular functions relating to nationals of
the sending State:
"* * *
"(b) if he so requests, the competent
authorities of the receiving State shall,
without delay, inform the consular post of the
sending State if, within its consular district,
a national of that State is arrested or
committed to prison or to
The record does not reflect whether the
police advised appellant of his right to
consular access. For the purposes of this
appeal, we assume that he was not advised of
custody pending trial or is detained in any
other manner. Any communication addressed to the
consular post by the person arrested, in prison,
custody or detention shall also be forwarded by
the said authorities without delay. The said
authorities shall inform the person concerned
without delay of his rights under this sub-paragraph.
"* * *
"2. The rights referred to in paragraph 1 of
this Article shall be exercised in conformity
with the laws and regulations of the receiving
State, subject to the proviso, however, that the
said laws and regulations must enable full
effect to be given to the purposes for which the
rights accorded under this Article are intended."
Although the issue appellant raises regarding
VCCR rights is an issue of first impression in
this court, it has been raised and addressed in
various other courts. At least one court has
rejected the claim by holding that Article 36
does not create individually enforceable rights.
United States v. Li (C.A.1, 2000), 206 F.3d 56,
62-66. But, see, Breard v. Greene (1998), 523
U.S. 371, 376, 118 S.Ct. 1352, 1355, 140 L.Ed.2d
529, 538 (the VCCR "arguably confers on an
individual the right to consular assistance
following arrest"). Many other courts have held
that even if individuals can enforce the treaty
provisions, application of the exclusionary rule
is not an appropriate remedy for a violation.
See, e.g., United States v. Alvarado-Torres (S.D.Cal.1999),
45 F.Supp.2d 986, 993-994; United States v. Page
(C.A.6, 2000), 232 F.3d 536, 540; United States
v. Chaparro- Alcantara (C.A.7, 2000), 226 F.3d
616; United States v. Jimenez-Nava (C.A.5,
2001), 243 F.3d 192, 198-200; United States v.
Lombera-Camorlinga (C.A.9, 2000), 206 F.3d 882
For the purposes of this case, we assume,
without deciding, that upon his arrest appellant
had an individually enforceable right under
Article 36 to be informed of his right to
consular notification and that the appropriate
remedy for the violation of that right is the
suppression of appellant's postarrest statement.2
Even applying the foregoing assumptions, we
nevertheless reach the conclusion that appellant
is not entitled to the relief he seeks.
As stated previously, Article 36(2) of the
VCCR provides, "The rights referred to in
paragraph 1 of this Article shall be exercised
in conformity with the laws and regulations of
the receiving State * * *." Thus, claims of
error based on violations of the VCCR for
failure to notify a defendant of his right to
consular access can be procedurally defaulted if
not properly raised. Breard v. Greene, 523 U.S.
at 375-376, 118 S.Ct. at 1354-1355, 140 L.Ed.2d
This court has long held that failure to
raise an issue in the trial court or the court
of appeals waives all but plain error in our
review. State v. Long (1978), 53 Ohio St.2d 91,
7 O.O.3d 178, 372 N.E.2d 804; State v. Williams
(1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d
1364, paragraph one of the syllabus, vacated on
other grounds (1978), 438 U.S. 911, 98 S.Ct.
3137, 57 L.Ed.2d 1156. Thus, because appellant
failed to raise this issue in the trial court,
he has waived all but plain error.
Plain error exists when it can be said that
but for the error, the outcome of the trial
would clearly have been otherwise. State v.
Moreland (1990), 50 Ohio
We doubt whether suppression of evidence is
the appropriate remedy for a violation of the
VCCR. Rights of persons arising under a treaty
are regarded as if they arose under a statute of
this state. State v. Vanderpool (1883), 39 Ohio
St. 273, 276-277. Thus, as in the case of a
statutory violation, the exclusionary rule is
not an appropriate sanction, absent an
underlying constitutional violation, unless the
treaty expressly provides for that remedy.
Kettering v. Hollen (1980), 64 Ohio St.2d 232,
234, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600.
Nothing in the text of the VCCR requires
suppression of evidence, and "there is no
indication that the drafters of the Vienna
Convention had these `uniquely American rights
in mind, especially given the fact that even the
United States Supreme Court did not require
Fifth and Sixth Amendment post-arrest warnings
until it decided Miranda in 1966, three years
after the treaty was drafted.' " United States
v. Page (C.A.6, 2000), 232 F.3d 536, 541,
quoting United States v. Lombera-Camorlinga
(C.A.9, 2000), 206 F.3d 882, 886 (en banc).
Furthermore, "no other signatories to the Vienna
Convention have permitted suppression under
similar circumstances, and * * * two (Italy and
Australia) have specifically rejected it." Id.
at 888. St.3d 58, 62, 552 N.E.2d 894, 899. We
find that even if the trial court erred in
admitting testimony regarding appellant's
postarrest statement, that testimony did not
affect the outcome of the trial.
At trial, Officer David Feldhaus testified
regarding appellant's statement to police
officers after his arrest. Feldhaus testified
that after waiving his Miranda rights, appellant
denied any involvement in the murders.
police questioned appellant regarding his
actions around the time of the murders,
appellant said that after closing the store, he
placed the keys to Maher's truck near the
vehicle as instructed, drove his mother to his
apartment, and then went with Gammoh to a bar,
where he and Gammoh remained until closing.
If the jury believed Gammoh's testimony that
appellant had left Gammoh's company for twenty-five
to thirty-five minutes before they went to the
bar, then appellant's omission of this fact
could have been perceived by the jury as an
intent to deceive police regarding his
whereabouts at the time of the murders. However,
the jury heard evidence far more damaging in
this regard through Gammoh's testimony. Gammoh
testified that appellant told him not to tell
the police about the time they were apart and
instructed Gammoh to say that he and appellant
were together all night.
Whereas the jury could
have concluded that appellant's failure to
inform police of the time he was not with Gammoh
was simply the result of a lapse of memory or
the omission of a seemingly unimportant detail,
Gammoh's testimony clearly indicates appellant's
intent to deceive the police regarding his
actions. Hence, this portion of appellant's
postarrest statement was not damaging.
Appellant's postarrest admission that he knew
that Maher would be coming back to the store
later to get his truck may have led jurors to
Regardless of the appropriate remedy for
violations of its provisions, the VCCR is the
law of the land and police officers are required
to comply with its terms. Section 2, Article VI,
United States Constitution.
conclusion that appellant conveyed this
information to Miles. However, Officer
Feldhaus's testimony also made it clear that
Linda knew that her husband would be returning
to Save-Way to get his truck. Because the jurors
were aware of the state's theory that Linda was
behind the murder-for-hire scheme, Feldhaus's
testimony could have put doubt in their minds
regarding whether it was Linda or appellant who
had arranged for Miles to wait for Maher.
Regardless, the other evidence against appellant
is so strong that we cannot say that without
this testimony the outcome of the trial would
clearly have been otherwise. For the foregoing
reasons, appellant's first proposition of law is
Amicus curiae, the National Association of
Criminal Defense Lawyers, argues that if the
Jordanian Consulate had been advised of
appellant's arrest, it would have provided
assistance with certain aspects of the
mitigation portion of appellant's trial.
Specifically, amicus suggests that Jordanian
officials could have provided complete
transcripts of appellant's educational record
rather than just the certificates of completion
and good behavior that were presented in
In addition, one of appellant's
brothers was unable to obtain a visa and was
therefore unavailable to provide mitigation
testimony during the penalty phase of
appellant's trial. Amicus alleges that Jordanian
Consul could have assisted in obtaining a visa.
For these reasons, amicus urges us to order a
new "mitigation trial."
Even assuming that Jordanian consul would
have provided assistance to appellant's defense
in the manner suggested by amicus, that
assistance would not have affected the jury's
penalty recommendation. Appellant provided proof
that he had completed the schooling and that he
was well behaved in school. The transcripts
would not have added any additional weight to
the mitigating evidence.
With regard to a visa for appellant's brother,
appellant's attorney advised the trial court
that had appellant's brother been available, his
testimony would have been similar to the
testimony of Jamal Issa, also appellant's
brother, who did provide mitigation testimony.
Therefore, his testimony would have provided no
additional weight to the mitigating factors. For
the above reasons, we reject the amicus's
Admission of Accomplice's Pretrial
In his second proposition of law, appellant
asserts that the trial court erred in allowing
Bonnie and Joshua to testify regarding Miles's
confession. Appellant contends that the
admission of this evidence violated his right to
confront witnesses as guaranteed by the Sixth
Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution.
In addition, although not explicitly stated in
his second proposition of law, appellant argues
that the out-of-court statements should have
been excluded as inadmissible hearsay.
We first discuss appellant's hearsay argument.
The trial court admitted Bonnie's and Joshua's
testimony regarding Miles's statements under the
exception to the hearsay rule for statements
against interest pursuant to Evid.R. 804(B)(3).3
In order for a declarant's statement to qualify
as an Evid.R. 804 exception to hearsay, it must
first be shown that the declarant is unavailable
as a witness. Evid.R. 804(B). Appellant argues
that Evid.R. 804 was not applicable in this case
because the declarant, Miles, was not
unavailable as a witness.
"Unavailability" is defined in Evid.R.
" `Unavailability as a witness' includes
situations in which the declarant:
Evid.R. 804(B)(3) provides:
"Hearsay exceptions. The following are not
excluded by the hearsay rule if the declarant is
unavailable as a witness:
"* * * "(3) Statement against interest. A
statement that * * * at the time of its making *
* * so far tended to subject the declarant to
civil or criminal liability * * * that a
reasonable person in the declarant's position
would not have made the statement unless the
declarant believed it to be true.
A statement tending to expose the declarant
to criminal liability, whether offered to
"* * *
"(2) persists in refusing to testify
concerning the subject matter of the declarant's
statement despite an order of the court to do
so." (Emphasis added.)
Appellant argues that Miles did not satisfy
the definition of unavailable because "the Court
did not order Miles to testify." (Emphasis added.)
Contrary to appellant's assertion, we find that
the record clearly establishes that Miles was
unavailable as a witness before the trial court.
Our finding is based on the following discussion
between the court and Miles after Miles was
sworn in and refused to testify:
"THE COURT: All right.
"Mr. Miles, let me make this statement to you.
You're here under subpoena to testify as a
witness in this case. You do have an obligation
to testify if subpoenaed and you have been
"I want to advise you, though, that you do
not have to testify as to anything that my [sic]
tend to incriminate yourself if called to the
witness stand to testify. Okay?
"Now, with that caution in mind, I want to
ask you again are you going to testify in this
"MR. MILES: I'm not going to testify.
"THE COURT: Why not?
"MR. MILES: Because I'm not going to testify.
"THE COURT: All right. You just simply are
refusing to testify, even though I'm informing
you you do have an obligation to testify, except
to those things that might incriminate yourself?
"MR. MILES: Yes."
inculpate the accused, is not admissible
unless corroborating circumstances clearly
indicate the trustworthiness of the statement."
The subpoena issued to Miles, to which the
court referred, stated: "You are required * * *
to testify * * * in the case of State of Ohio
versus Ahmed Fawzi Issa * * *. Fail not under
penalty of the law." (Emphasis sic.) We find
that the court's repeated statements to Miles
that he had an obligation to testify, combined
with the court's reference to the subpoena (which
clearly subjected Miles to criminal penalty for
failure to testify), satisfied the requirements
of Evid.R. 804(A)(2).
We further note that the 1980 Staff Note to
Evid.R. 804(A)(2) provides that to be
unavailable, a witness must refuse to testify "despite
all efforts by the court to compel him to do
so." Although the judge did not explicitly order
Miles to testify, he did attempt to compel him.
Furthermore, even if the court had expressly
threatened contempt proceedings for refusal to
obey a court order, the threat would undoubtedly
have been unavailing, as Miles was soon to be
tried for murder and the state had strong
evidence against him. For the foregoing reasons,
we find that appellant's assertion with regard
to Evid.R. 804(A) is without merit.
We now turn to appellant's contention that
the admission of Bonnie and Joshua's testimony
regarding Miles's confession violated his right
to confront the witnesses against him as
guaranteed by the United States and Ohio
Constitutions.4 " `The central concern of the
Confrontation Clause is to ensure the
reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing
in the context of an adversary proceeding before
the trier of fact.' " State v. Madrigal (2000),
87 Ohio St.3d 378, 384, 721 N.E.2d 52, 61,
quoting Maryland v. Craig (1990), 497 U.S. 836,
845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678.
The Confrontation Clause of the Sixth
Amendment to the United States Constitution,
made applicable to the states through the
Fourteenth Amendment, provides:
"In all criminal prosecutions, the accused
shall enjoy the right * * * to be confronted
with the witnesses against him."
Section 10, Article I of the Ohio
"In any trial, in any court, the party
accused shall be allowed * * * to meet the
witnesses face to face * * *."
Although the hearsay rules and the
Confrontation Clause are generally designed to
protect similar ideals, the two are not
equivalent. Idaho v. Wright (1990), 497 U.S.
805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638,
651. In other words, the Confrontation Clause
may bar the admission of evidence that would
otherwise be admissible under an exception to
the hearsay rule. Id. Consequently, although
testimony concerning Miles's confession
qualified as an exception to the hearsay rule,
the admission of the testimony could
nevertheless have violated appellant's right to
confront witnesses against him.
In Lilly v. Virginia (1999), 527 U.S. 116,
119 S.Ct. 1887, 144 L.Ed.2d 117 (plurality
opinion), the lead opinion recognized that the
type of hearsay statement challenged herein, i.e.,
an out-of-court statement made by an accomplice
that incriminates the defendant, is often made
under circumstances that render the statement
inherently unreliable. For example, when a
declarant makes such a statement to officers
while he is in police custody, the declarant has
an interest in inculpating another so as to
shift the blame away from himself.
situation, a declarant will often admit to
committing a lesser crime and point to an
accomplice (the defendant) as the culprit in a
more serious crime. While the statement is
technically against the declarant's penal
interest, it is also self-serving and, for that
reason, particularly deserving of cross-examination
when used as evidence against the defendant. Id.
at 131-132 and 138, 119 S.Ct. at 1897-1898 and
1901, 144 L.Ed.2d at 131 and 135.
type of statement is inherently unreliable, the
lead opinion stated that, in order to satisfy
the Sixth Amendment, the circumstances
surrounding the making of the statement must
make the declarant's truthfulness so clear that
" `the test of cross-examination would be of
marginal utility.' " Id. at 136, 119 S.Ct. at
1900, 144 L.Ed.2d at 134, quoting Idaho v.
Wright, 497 U.S. at 820, 110 S.Ct. at 3149, 111
L.Ed.2d at 655.
This court followed Lilly in State v.
Madrigal, 87 Ohio St.3d 378, 721 N.E.2d 52. In
Madrigal, we held that "[o]ut-of-court
statements made by an accomplice that
incriminate the defendant may be admitted as
evidence if the statement" contains "adequate
indicia of reliability." Id. at paragraphs one
and three of the syllabus. The relevant
circumstances in measuring the degree of
reliability include " `only those that surround
the making of the statement' " and "do not
include those that may be added using hindsight."
(Emphasis sic.) Id. at 387, 721 N.E.2d at 63,
quoting Wright, 497 U.S. at 819, 110 S.Ct. at
3148, 111 L.Ed.2d at 655. Thus, the fact that
other evidence corroborates the statement is
irrelevant in a Confrontation Clause analysis.
Madrigal, 87 Ohio St.3d at 387, 721 N.E.2d at
63, citing Lilly, 527 U.S. at 138, 119 S.Ct. at
1900-1901, 144 L.Ed.2d at 135.
Applying Lilly and Madrigal to this case, it
is clear that in order to determine whether the
admission of evidence concerning Miles's
confession violated appellant's confrontation
rights, we must examine the circumstances under
which the confession was made. Unlike the
declarants in Lilly and Madrigal, Miles was not
talking to police as a suspect when he made the
out-of- court statement. Miles's confession was
made spontaneously and voluntarily to his
friends in their home.
Moreover, Miles had
nothing to gain from inculpating appellant in
the crime. In fact, by stating that appellant
had hired him to kill Maher, Miles was admitting
a capital crime, i.e., murder for hire.
Furthermore, Miles's statement was clearly not
an attempt to shift blame from himself because
he was bragging about his role as the shooter in
the double homicide.
We therefore find that the circumstances
surrounding the confession did " `render the
declarant [Miles] particularly worthy of belief.'
" Madrigal, 87 Ohio St.3d at 387, 721 N.E.2d at
63, quoting Wright, 497 U.S. at 819, 110 S.Ct.
at 3148, 111 L.Ed.2d at 655. Our decision herein
is buttressed by Chief Justice Rehnquist's
separate opinion in Lilly, in which he noted
that in a prior case, the court "recognized that
statements to fellow prisoners, like confessions
to family members or friends, bear sufficient
indicia of reliability to be placed before a
jury without confrontation of the declarant." (Emphasis
added.) Id., 527 U.S. at 147, 119 S.Ct. at 1905,
144 L.Ed.2d at 141 (Rehnquist, C.J., concurring
Accordingly, we hold that the admission of
Bonnie's and Joshua's testimony concerning
Miles's confession did not violate the
For the foregoing reasons, we overrule
appellant's second proposition of law.
Grand Jury Issues
In his fifth proposition of law, appellant
argues that he was indicted "by an improperly
constituted grand jury and upon inadequately
presented evidence" in violation of his
constitutional rights. Appellant failed to raise
these issues in the trial court, and therefore
he has waived them. Williams, 51 Ohio St.2d 112,
5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of
the syllabus. See, e.g., State v. Joseph (1995),
73 Ohio St.3d 450, 455, 653 N.E.2d 285, 291;
State v. Taylor (1997), 78 Ohio St.3d 15, 23,
676 N.E.2d 82, 91.
Appellant's argument that he was indicted by
an improperly constituted grand jury would fail
even if it were properly before this court.
Appellant claims that Hamilton County uses only
voter registration lists to select grand jurors
and that when appellant was tried "the
percentages of African-Americans and other
minorities registered to vote in Hamilton County
was less than the percentage of racial
minorities composing the voting age population
of Hamilton County."
The record does not support
these assertions. Moreover, "not every grand
jury has to represent a `fair cross-section,' so
long as the selection process is
nondiscriminatory." State v. Williams (1997), 79
Ohio St.3d 1, 17, 679 N.E.2d 646, 660. In State
v. Moore (1998), 81 Ohio St.3d 22, 28, 689 N.E.2d
1, 9, we held that "[t]he use of voter
registration rolls as exclusive sources for
[petit] jury selection is constitutional" and
does not systematically or intentionally exclude
any racial group of the community. We see no
reason to apply a different principle to the
selection of grand jurors.
Likewise, appellant's argument that he was
indicted upon inadequate evidence would fail
even if it had been properly preserved. It is
not clear from the record what evidence was
presented before the grand jury. Hence, whether
the indictment was based on inadequate evidence
cannot be evaluated. In addition, " `an
indictment valid on its face is not subject to
challenge on the ground that the grand jury
acted on the basis of inadequate or incompetent
evidence * * *.' " State v. Davis (1988), 38
Ohio St.3d 361, 365, 528 N.E.2d 925, 929,
quoting United States v. Calandra (1974), 414
U.S. 338, 344-345, 94 S.Ct. 613, 618-619, 38
L.Ed.2d 561, 569.
For the foregoing reasons, appellant's fifth
proposition of law is not well taken.
In his eighth proposition of law, appellant
argues that the "process used in Hamilton County
to select foremen of grand juries that return
capital indictments is biased geographically,
racially, culturally, and socio-economically."
Appellant failed to raise this issue below and
thereby waived it. Williams, 51 Ohio St.2d 112,
5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of
the syllabus. Moreover, the record contains no
evidence of how grand jury foremen were selected
in Hamilton County, and appellant has failed to
cite statistical or other evidence to suggest
that the method was biased. Accordingly,
appellant's eighth proposition of law is
In his sixth proposition of law, appellant
argues that prejudicial publicity, "which
occurred throughout appellant Issa's trial,
deprived him of his right to a fair trial and a
fair and reliable sentencing determination."
However, appellant waived this issue by failing
to request a change of venue. State v. Campbell
(2000), 90 Ohio St.3d 320, 336, 738 N.E.2d 1178,
In addition, we have reviewed the entire
record in this case, and there is nothing before
us that supports appellant's claim that he was
denied a fair and impartial trial because of the
alleged publicity. This court has long held that
voir dire examination provides the best test as
to whether adverse publicity necessitates a
change of venue. State v. Swiger (1966), 5 Ohio
St.2d 151, 34 O.O.2d 270, 214 N.E.2d 417,
paragraph one of the syllabus; State v.
Montgomery (1991), 61 Ohio St.3d 410, 413, 575
N.E.2d 167, 170-171.
During voir dire, only one juror recalled
learning specific details of the case from
pretrial publicity, and he indicated that he
could put that information out of his mind and
not let it influence his judgment in this case.
Moreover, the trial judge repeatedly advised
prospective jurors during voir dire and seated
jurors throughout both phases of appellant's
trial to avoid exposure to information about the
case outside of the courtroom and to advise the
court of any incidents of exposure. State v.
Landrum (1990), 53 Ohio St.3d 107, 117, 559 N.E.2d
710, 722-723. No incidents were reported.
For the foregoing reasons, appellant's sixth
proposition of law is not well taken.
In his ninth proposition of law, appellant
argues that he was unable to adequately defend
himself because a lack of funds prevented him
from hiring a crime-scene investigator, a
general investigator, and a forensic pathologist.
Appellant alleges that he was denied a fair
trial because these experts were not provided to
him at state expense.
The court granted various defense requests
for funds throughout the trial.
For example, the court granted appellant's
motions for a mitigation specialist, travel and
housing expenses for appellant's family members
from Jordan to testify in the penalty phase, a
translator, transcripts of Linda Khriss's trial,
and additional attorney fees. However, appellant
did not move for funds for the experts that he
now argues were necessary for a fair trial. The
court need not consider an error when the
complaining party did not call the matter to the
trial court's attention. Williams, 51 Ohio St.2d
112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one
of the syllabus.
Moreover, in State v. Mason (1998), 82 Ohio
St.3d 144, 694 N.E.2d 932, syllabus, we held
that due process "requires that an indigent
criminal defendant be provided funds to obtain
expert assistance at state expense only where
the trial court finds, in the exercise of sound
discretion, that the defendant has made a
particularized showing (1) of a reasonable
probability that the requested expert would aid
in his defense, and (2) that denial of the
requested expert assistance would result in an
unfair trial." The circumstances surrounding
this case do not support appellant's assertion
that the lack of these experts resulted in an
The cause of Maher's death was clear, and the
crime scene evidence did not suggest justifiable
homicide. In addition, the fact that Miles was
the actual killer was not in question. Moreover,
the record reveals a thorough, professional, and
well-documented autopsy and police investigation.
For these reasons, appellant would have been
unable to make the particularized showing
required by Mason. Thus, if appellant had filed
a motion for funds for these experts the trial
court would have been justified in denying it.
For the foregoing reasons, appellant's ninth
proposition of law is overruled.
Denial of Bond
In his eleventh proposition of law, appellant
argues that the trial court failed to set a
reasonable bail. We disagree.
Section 9, Article I of the Ohio Constitution
"All persons shall be bailable by sufficient
sureties, except for a person who is charged
with a capital offense where the proof is
evident or the presumption great * * *."
The trial court set appellant's bail at
$1,000,000. In essence, appellant argues that
this was excessive and, in effect, rendered him
not bailable. Appellant complains that the trial
court erred in failing to hold an evidentiary
hearing to determine whether the proof was
evident or the presumption great before setting
bail. However, appellant did not request such a
hearing and thereby waived this issue. Williams,
51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364,
paragraph one of the syllabus.
Furthermore, if the court had held a hearing
on the matter, it is unlikely that a lower bail
would have been set. The jury convicted
appellant of Maher's murder largely on the basis
of evidence available by December 5, 1997.
Therefore, when appellant was arraigned on
December 18, 1997, the proof was evident and the
For the foregoing reasons, appellant's
eleventh proposition of law is not well taken.
In his twelfth proposition of law, appellant
alleges that the "trial court erred in admitting
into evidence gruesome and cumulative
photographs of the victim." We have consistently
held that "photographs, even if gruesome, are
admissible in a capital prosecution if relevant
and of probative value in assisting the trier of
fact to determine the issues or are illustrative
of testimony and other evidence, as long as the
danger of material prejudice to a defendant is
outweighed by their probative value and the
photographs are not repetitive or cumulative in
number." State v. Maurer (1984), 15 Ohio St.3d
239, 15 OBR 379, 473 N.E.2d 768, paragraph seven
of the syllabus.
The trial court has broad
discretion in the admission of evidence, and
unless it has clearly abused its discretion and
the defendant has been materially prejudiced
thereby, an appellate court should not disturb
the decision of the trial court. Id. at 265, 15
OBR at 401, 473 N.E.2d at 791.
We have reviewed the nine photographs of the
murder victims that the state introduced into
evidence. All were taken at the crime scene and
show the victims lying on their backs in the
Save-Way parking lot. Medical personnel had cut
the clothing on the victims' upper bodies and
the victims' bare chests are visible in the
photos. Six of the photographs, exhibits 3, 4,
5, 6, 30, and 31, each show both victims from
several feet away. Although blood is visible on
the brothers' chests and clothing, these
photographs are not gruesome. Moreover, these
photographs illustrate witness testimony
describing the crime scene.
Exhibit 29 is a duplicate of exhibit 5, and,
therefore, the trial court erred in admitting it.
However, we find that the repetition of this
single photograph did not prejudice appellant,
and, therefore, the error was harmless.
The remaining two photographs, exhibits 7 and
8, are close views of Maher's body. Exhibit 7
shows the wound to Maher's left hand described
in the coroner's testimony. This wound is not
visible in any other photograph. Exhibit 8 shows
the fatal wound to Maher's chest. This
photograph is illustrative of the coroner's
testimony and assists the finder of fact in
evaluating the defense theory that the location
of Maher's fatal wound shows that the shooter
was not intent on killing him.5
The photographs are not cumulative, and, with
the exception of exhibit 29, discussed
previously, the photographs are not repetitive.
We further find that the
During closing arguments of the guilt phase
of his trial, appellant's attorney stated:
"I want to take a look at the pictures. I
want you to take a good look and pass it around
of the body of Maher Khriss as it was found at
the scene. Take a look where the bullet hole is
in that body. Remember the testimony Dr. Schulz
that this is the only bullet hole, this is the
only bullet that struck Maher Khriss. The one
you see is there, which went through his hand
into his shoulder. You can look at that. I am
not exaggerating. That bullet hole is in his
"You tell me if his only purpose was to kill
Maher Khriss, and the only way you're going to
get paid, would you rely on that to get the job
"Take a look at that shot. Would you rely on
one bullet hole in the shoulder to kill a person?
Look at that shot. I would never have guessed
that that would be the fatal shot, looking at
probative value of the photographs outweighed
any danger of material prejudice to appellant.
Maurer, paragraph seven of the syllabus.
Appellant also contends that "the
prosecutor's closing argument, combined with the
gruesome photographs, rendered Mr. Issa's trial
unfair." Appellant fails to specify what
portions of the closing arguments he is
challenging. Nevertheless, the prosecutors made
only a few references to the photographs of the
victims in their closing argument, and those
For the foregoing reasons, we reject
appellant's twelfth proposition of law.
Sufficiency and Weight of Evidence
In his tenth proposition of law, appellant
challenges the sufficiency of the evidence to
support his guilt of aggravated murder and
argues that the judgment is against the manifest
weight of the evidence. In reviewing a record
for sufficiency, "[t]he relevant inquiry is
whether, after viewing the evidence in a light
most favorable to the prosecution, any rational
trier of fact could have found the essential
elements of the crime proven beyond a reasonable
doubt." State v. Jenks (1991), 61 Ohio St.3d
259, 574 N.E.2d 492, paragraph two of the
During closing argument, in response to
appellant's counsel's argument that the location
of Maher's wound indicated that the shooter was
not intent on killing him (see footnote 5), the
prosecutor referred to the picture of Maher and
"In regards to the bullets and the shots that
were in Maher Khriss's body, well, you look at
the pictures. There is a hole. It's that big (indicating).
Do you think that would not kill someone? When
you see the bullets, they are like torpedoes.
"Why would you think that one shot couldn't
or wouldn't kill someone?"
The only other reference to the pictures of
the victims made by the prosecution during
closing arguments was as follows:
"I think you can believe that Andre Miles
thought he did shoot them in the head when you
look at one of those photos. Here is State's
Exhibit Number 31. It's a little extreme; but
when you look at it later, you will see that it
sure looks like Ziad got shot in the eye. It
really looks like he was shot in the eye--Hardly
blame Miles for thinking he did shoot him in the
That wasn't what the Coroner said. I think
we'd all believe this guy got it in the head;
but the coroner said, `No, he wasn't shot in the
head.' We have to accept that from all
appearances that's what it looks like it is."
following Jackson v. Virginia (1979), 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
The following evidence was presented to the
jury in this case. Gammoh and Howard saw
appellant with a rifle in his apartment within a
two-week period preceding the murders. Howard
identified the murder weapon as the rifle he saw
in appellant's possession. After the murders,
appellant attempted to persuade Howard not to
tell anyone about seeing him with the weapon.
Before the murders, Miles told Joshua that
appellant hired him "to kill somebody for some
money." Less than four hours before Maher and
Ziad were killed, Miles went to Save-Way and met
with appellant. Then, Miles waited outside the
store with a rifle for Maher to return. When
Maher returned, Miles shot him and his brother
Miles's identity as the shooter was not
questioned, because he confessed to the crime,
told the police the exact location of the murder
weapon, and knew details of the crime that the
killer would be expected to know, i.e., the type
of weapon used, the stacked milk crates near the
dumpster, the location of money and a shattered
beverage bottle on the ground near the bodies,
and the manner and direction in which the
The day after the murder, Miles told both
Bonnie and Joshua that he had shot and killed
Maher and Ziad and related details of the
murders. Miles told them that appellant had
hired him to kill Maher and that appellant had
supplied the rifle and drove him home after the
murders. He also told them that he had left the
murder weapon in their back yard in a white bag.
Both Bonnie and Joshua saw a white bag in their
back yard, and Joshua testified that it was
shaped like a gun.
Bonnie and Joshua independently went to
appellant after the murders and told him that
they wanted the rifle removed from their yard.
Appellant responded to each of them that if
Miles did not remove the rifle, he would.
Appellant also told Bonnie to tell Miles not to
come around the store because the police were
investigating and that appellant would get in
touch with Miles.
Three days after the murders, Hayes saw Linda
hand appellant $2,000 in cash along with some
other money. Although the defense argued that
this money was later deposited in the store's
account, the defense failed to produce evidence
of such a deposit.
Gammoh testified that appellant asked him to
tell police that he was with appellant around
the time of the murders. Trying to create a
false alibi "strongly indicates consciousness of
guilt." State v. Campbell (1994), 69 Ohio St.3d
38, 47, 630 N.E.2d 339, 349.
When police searched appellant's apartment
they recovered a 7.62 caliber rifle shell from a
nightstand in his bedroom. This was the same
caliber ammunition as that used to kill Maher
We find that the foregoing evidence was
sufficient to establish, beyond a reasonable
doubt, that appellant was guilty of the
aggravated murder of Maher and that the murder
was committed for hire. R.C. 2903.01(A) and
As to the weight of the evidence, the issue
is whether the jury created a manifest
miscarriage of justice in resolving conflicting
evidence, even though the evidence of guilt was
legally sufficient. State v. Thompkins (1997),
78 Ohio St.3d 380, 387, 678 N.E.2d 541, 545-546.
After reviewing the entire record, weighing all
the evidence and all reasonable inferences drawn
therefrom, and considering the credibility of
the witnesses, we conclude that appellant's
conviction was not against the manifest weight
of the evidence. Accordingly, we overrule
appellant's tenth proposition of law.
Ineffective Assistance of Counsel
In his third proposition of law, appellant
argues that his counsel provided ineffective
assistance. Reversal of a conviction for
ineffective assistance of counsel requires that
the defendant show, first, that counsel's
performance was deficient and, second, that the
deficient performance prejudiced the defense so
as to deprive the defendant of a fair trial.
Strickland v. Washington (1984), 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.
Accord State v. Bradley (1989), 42 Ohio St.3d
136, 538 N.E.2d 373.
Appellant alleges that his trial counsel were
deficient in three separate instances. First,
appellant argues that his trial counsel should
have raised the issue of appellant's "cultural
competency" to stand trial. Contrary to
appellant's assertion, the fact that he is a
foreign national and that English is not his
first language does not suggest that he lacked
competency to be tried. Appellant's unsworn
statement demonstrated that he understood and
could speak English well.
In addition, because
he immigrated to the United States in 1990, our
customs and culture were not mysterious to him.
Furthermore, appellant was clearly intelligent,
having completed two years of college in Jordan
before emigrating to the United States. For
these reasons, appellant was clearly capable of
understanding the nature and objective of the
proceedings against him and assisting in his own
defense. Thus, he was competent to stand trial.
R.C. 2945.37(G). Counsel is certainly not
deficient for failing to raise a meritless issue.
State v. Taylor (1997), 78 Ohio St.3d 15, 31,
676 N.E.2d 82, 97.
Second, appellant argues that his trial
counsel were deficient because they failed to
request funds to hire investigators and a
firearms expert to assist the defense. We reject
appellant's argument for the reasons set forth
previously in the section entitled "Indigency."
That is, such a motion would have been properly
denied by the trial court because appellant
would have been unable to make "a particularized
showing (1) of a reasonable probability that the
requested expert would aid in his defense, and
(2) that denial of the requested expert
assistance would result in an unfair trial."
Mason, 82 Ohio St.3d 144, 694 N.E.2d 932,
Third, appellant contends that his trial
counsel should have filed a motion to suppress
the evidence of the 7.62 caliber bullet
discovered during a search of his apartment.
Appellant gives no reason to suspect that the
search warrant that authorized this search could
have been legitimately challenged.
trial counsel did not file a motion to suppress,
the record is silent as to the basis for the
search warrant. However, when police executed
the search of appellant's apartment on December
5, they had probable cause to do so. By that
time, police had talked to Bonnie and Joshua
regarding Miles's confession implicating
appellant, arrested Miles and obtained his
confession, and recovered the murder weapon and
Furthermore, the outcome of appellant's trial
would have been the same even if the bullet
found in appellant's apartment had not been
introduced as evidence, as more compelling
evidence linked appellant to the murder weapon,
for example, Howard's testimony that he saw
appellant with the murder weapon shortly before
the murders and Bonnie's and Joshua's testimony
that Miles told them that appellant supplied him
with the rifle.
For the foregoing reasons, we overrule
appellant's third proposition of law.
In his fourth proposition of law, appellant
challenges the constitutionality of the
provision of the Ohio Constitution that requires
a direct appeal of capital cases from the trial
court to this court. We reject this argument on
the authority of State v. Smith (1997), 80 Ohio
St.3d 89, 684 N.E.2d 668.
In his thirteenth proposition of law,
appellant argues that requiring that mitigating
factors be proven by a preponderance of the
evidence violates the Eighth, Ninth, and
Fourteenth Amendments to the United States
Constitution. We summarily reject this argument
on the authority of Delo v. Lashley (1993), 507
U.S. 272, 275-276, 113 S.Ct. 1222, 1224, 122
L.Ed.2d 620, 626; Walton v. - 27 - Arizona
(1990), 497 U.S. 639, 650, 110 S.Ct. 3047, 3055,
111 L.Ed.2d 511, 526 (plurality); State v.
Jenkins (1984), 15 Ohio St.3d 164, 171, 15 OBR
311, 317, 473 N.E.2d 264, 275. Moreover,
appellant failed to object to this procedure at
trial and thereby waived the issue. State v.
Combs (1991), 62 Ohio St.3d 278, 291, 581 N.E.2d
1071, 1082; State v. Awan (1986), 22 Ohio St.3d
120, 22 OBR 199, 489 N.E.2d 277, syllabus.
In his fourteenth proposition of law,
appellant argues that Ohio's statutory
definition of reasonable doubt is
unconstitutional when applied to the penalty
phase of a capital case. We reject this argument
on the authority of State v. Goff (1998), 82
Ohio St.3d 123, 131-132, 694 N.E.2d 916,
In his fifteenth proposition of law,
appellant raises constitutional challenges to
Ohio's death penalty statutes. Each of
appellant's arguments has been rejected in
previous decisions issued by this court, and we
summarily overrule them here. State v. Carter
(2000), 89 Ohio St.3d 593, 607, 734 N.E.2d 345,
357-358; State v. Clemons (1998), 82 Ohio St.3d
438, 454, 696 N.E.2d 1009, 1023; State v.
Jenkins, 15 Ohio St.3d at 168-177, 15 OBR at
314-322, 473 N.E.2d at 272-279; State v. Seiber
(1990), 56 Ohio St.3d 4, 16, 564 N.E.2d 408,
421; State v. Weind (1977), 50 Ohio St.2d 224,
227-229, 4 O.O.3d 413, 415-416, 364 N.E.2d 224,
228-229, vacated in part and remanded (1978),
438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156;
State v. Bradley (1989), 42 Ohio St.3d 136, 147,
538 N.E.2d 373, 384; State v. Buell (1986), 22
Ohio St.3d 124, 138-139, 22 OBR 203, 215-216,
489 N.E.2d 795, 807-809; State v. Stallings
(2000), 89 Ohio St.3d 280, 297-298, 731 N.E.2d
159, 177; State v. Raglin (1998), 83 Ohio St.3d
253, 261 and 276-277, 699 N.E.2d 482, 490 and
500-501; State v. Henderson (1988), 39 Ohio St.3d
24, 528 N.E.2d 1237, paragraph two of the
syllabus; State v. Chinn (1999), 85 Ohio St.3d
548, 567-568, 709 N.E.2d 1166, 1183; State v.
Bays (1999), 87 Ohio St.3d 15, 32, 716 N.E.2d
1126, 1143-1144; State v. Smith (1997), Ohio St.3d
89, 684 N.E.2d 668; State v. Poindexter (1988),
36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.
Appellant also contends that Ohio's death
penalty statute violates the American
Declaration of the Rights and Duties of Man,
which appellant claims binds the United States
via the Charter of the Organization of American
We reject this argument on the authority of
State v. Phillips (1995), 74 Ohio St.3d 72,
103-104, 656 N.E.2d 643, 671. Moreover,
appellant failed to raise this claim at trial
and thereby waived it. See State v. Keene
(1998), 81 Ohio St.3d 646, 669, 693 N.E.2d 246,
Independent Sentence Evaluation
In accordance with R.C. 2929.05(A), we now
independently determine whether the aggravating
circumstance outweighs the mitigating factors in
this case and whether appellant's sentence is
excessive or disproportionate to sentences in
similar cases. R.C. 2929.05(A). We begin by
considering whether the aggravating circumstance
charged against appellant, R.C. 2929.04(A)(2),
murder for hire, was proven beyond a reasonable
doubt. We find that it was.
Against this aggravating circumstance, we
weigh the nature and circumstances of the
offense, the history, character, and background
of the offender, and any applicable mitigating
factors enumerated in R.C. 2929.04(B)(1) through
(7). The nature and circumstances of the offense
offer no mitigating value. Appellant offered
Miles money to kill Maher. Appellant supplied
the murder weapon and provided Miles with
transportation immediately after the murder.
Appellant's mother, Sara Abdel Satchsaad, and
one of his brothers, Jamal Issa, provided
mitigation testimony. Jamal testified that
appellant has four brothers and two sisters and
that the family members are Jordanian citizens.
When appellant was born, the family lived in
Kuwait. In 1977, appellant moved with his mother
and siblings back to Jordan, but his father
stayed in Kuwait to work and visited the family
in Jordan for one month each year.
With his father's financial assistance,
appellant studied engineering in college from
1988 through 1990 in Jordan. In 1990, appellant
immigrated to the United States to continue his
studies. However, appellant's father died, and
for financial reasons appellant was unable to
continue his education. He then had to work to
support himself and to help support his family
in Jordan. Jamal described his brother as a "quiet
person. Gentle. Loving to people." He could not
believe that his brother committed the offense
charged. Jamal does not want his brother to be
Sara testified that appellant was born in
1969. She corroborated the family history given
by Jamal. She testified that appellant sent
money to his family from time to time before he
was arrested. Prior to the murders, Sara
traveled from Jordan to the United States to
visit appellant. She was surprised to hear of
the charges against her son because he "was of
good character and quiet" and was not the sort
of man to do such things. She suffers because of
her son's situation and does not want him to be
In an unsworn statement, appellant reiterated
his family history and noted that he came to the
United States in 1990 to continue his college
studies. Because of his father's death, he went
to work while living in New York and Chicago. In
1992, he moved to Cincinnati and got married,
but the marriage did not work out.
He worked at two other stores before he
started working for Maher. Maher gave him the
job at his store when appellant was having
difficulty finding a job.
Appellant said that he liked both Maher and
Ziad and that he had a good relationship with
them and their families. Appellant stated that
Maher and Ziad were like brothers to him and
that Ziad and he had been roommates. Appellant
also stated that Maher frequently permitted him
to use his car, and appellant thought Maher was
a "very, very, very nice person." Appellant said
that he felt sorry for Maher and Ziad's family
for what happened but that he had "nothing to do
with" the murders and he was shocked when he
heard about it.
Appellant's "history, character, and
background" provide some mitigating weight. As a
child and young man, appellant lacked his
father's guidance after they moved to Jordan, as
his father could visit the family for only one
month out of each year. Appellant attended two
years of college in Jordan and then moved to the
United States to continue his studies, but his
father's death prevented him from pursuing his
education and he undertook employment to support
himself and to help his family financially.
In addition, the record suggests that
appellant remained steadily employed while in
the United States. This is entitled to some
mitigating weight. See State v. Fox (1994), 69
Ohio St.3d 183, 194, 631 N.E.2d 124, 133.
Appellant's mother and brother both described
appellant as being of good character. They love
him and do not want him executed. This also
provides some mitigating weight. State v. Mason,
82 Ohio St.3d at 170, 694 N.E.2d at 957.
Appellant also offered the fact that he was
not the principal offender in the offense as a
mitigating factor to consider. R.C.
2929.04(B)(6) provides one of the enumerated
mitigating factors to consider and weigh against
the aggravating circumstance: "If the offender
was a participant in the offense but not the
principal offender, the degree of the offender's
participation in the offense and the degree of
the offender's participation in the acts that
led to the death of the victim."
After reviewing the facts of this case, we
give no weight to this mitigating factor.
Although appellant was not the actual killer,
State v. Penix (1987), 32 Ohio St.3d 369, 371,
513 N.E.2d 744, 746, he was nevertheless a
crucial participant in Maher's murder. Appellant
offered to pay Miles to kill Maher. He then
supplied the weapon and assisted in Miles's
escape after the murder. But for appellant's
involvement, Miles would not have killed Maher.
No evidence suggests that the remaining
statutory mitigating factors are applicable here:
R.C. 2929.04(B)(1) (inducement by the victim),
(B)(2) (duress, coercion, or strong provocation),
(B)(3) (mental disease or defect), (B)(4) (youth
of the offender), (B)(5) (lack of criminal
record), or (B)(7) (other factors).
Overall, we find, beyond a reasonable doubt,
that the aggravating circumstance outweighs the
mitigating factors. We must now determine
whether appellant's sentence is excessive or
disproportionate to sentences in similar cases.
Appellant argues, in his seventh proposition
of law, that his death sentence is excessive and
disproportionate to penalties in similar cases.
In support of this assertion appellant points to
the disparity between the outcome of his trial
and the outcomes of Linda's and Miles's trials.
Appellant states that Linda was acquitted of the
charges against her in relation to this crime
and Miles received life imprisonment without the
possibility of parole.
We have held, however, that "[d]isparity of
sentence does not justify reversal when the
sentence is neither illegal nor an abuse of
discretion." State v. Jamison (1990), 49 Ohio St.3d
182, 191, 552 N.E.2d 180, 188. Moreover, "[t]he
proportionality review required by R.C.
2929.05(A) is satisfied by a review of those
cases already decided by the reviewing court in
which the death penalty has been imposed." State
v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR
273, 509 N.E.2d 383, syllabus. Neither Linda nor
Miles received a death sentence, and their trial
records are not before this court; thus we
refuse to include a review of those cases in our
analysis. State v. Smith (1997), 80 Ohio St.3d
89, 118, 684 N.E.2d 668, 694; State v. Green
(1993), 66 Ohio St.3d 141, 151, 609 N.E.2d 1253,
We find that the penalty imposed in this case
is neither excessive nor disproportionate when
compared with other capital cases in which an
aggravated murder was committed for hire. See,
e.g., State v. Williams (1988), 38 Ohio St.3d
346, 528 N.E.2d 910; State v. Getsy (1998), 84
Ohio St.3d 180, 702 N.E.2d 866.
For the foregoing reasons, we affirm
appellant's conviction and death sentence.
MOYER, C.J., RESNICK and F.E. SWEENEY, JJ.,
COOK, J., concurs separately.
PFEIFER, J., concurs in part and dissents in
LUNDBERG STRATTON, J., dissents.
COOK, J., concurring. Like the majority, I
find no plain error in admitting the appellant's
postarrest statements, notwithstanding the
provisions of Article 36 of the Vienna
Convention on Consular Relations. I arrive at
this conclusion, however, by applying the plain-error
analytic framework described in United States v.
Olano (1993), 507 U.S. 725, 113 S.Ct. 1770, 123
Applying an Olano analysis, I would find that
the error Issa complains of in his first
proposition of law was not "plain," and
therefore cannot constitute reversible error.
See State v. Hill (2001), 92 Ohio St.3d 191,
205, 749 N.E.2d 274, 286-287 (Cook, J.,
concurring in judgment); State v. McKee (2001),
91 Ohio St.3d 292, 300-301, 744 N.E.2d 737, 744
(Cook, J., dissenting). At present, the question
whether Article 36(1)(b) of the Vienna
Convention creates individual rights that are
enforceable in American courts remains open. See
Breard v. Greene (1998), 523 U.S. 371, 376, 118
S.Ct. 1352, 1355, 140 L.Ed.2d 529, 538 (per
curiam) (noting, without deciding, that the
Vienna Convention "arguably" confers individual
right to consular assistance following arrest);
see, also, United States v. Page (C.A.6, 2000),
232 F.3d 536, 540. I concur in the majority
opinion in all other respects.
I also write separately to respond to the
view, advocated by Justice Lundberg Stratton,
that the failure to inform Issa of any rights he
had to consular access under Article 36 of the
Vienna Convention constitutes "structural error"
warranting automatic reversal. Although Justice
Lundberg Stratton voices the legitimate position
that the states must follow international
treaties made under authority of the United
States, there is simply no legal basis upon
which to conclude that the "structural error"
doctrine should apply here.
Treaties of the United States are on the "same
footing" with federal statutes under the United
States Constitution. Whitney v. Robertson
(1888), 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31
L.Ed. 386, 388. Thus, violation of a treaty is
treated just like a violation of a federal
statute. We do not necessarily treat a violation
of either, however, as a violation of one's
constitutional rights. As the United States
Court of Appeals for the Fourth Circuit observed:
"Although states may have an obligation under
the Supremacy Clause [Article VI, United States
Constitution] to comply with the provisions of
the Vienna Convention, the Supremacy Clause does
not convert violations of treaty provisions (regardless
whether those provisions can be said to create
individual rights) into violations of
constitutional rights. Just as a state does not
violate a constitutional right merely by
violating a federal statute, it does not violate
a constitutional right merely by violating a
treaty." (Emphasis sic.) Murphy v. Netherland
(C.A.4, 1997), 116 F.3d 97, 100.
Accordingly, because the failure to advise an
accused of his or her rights under Article 36 of
the Vienna Convention does not rise to the level
of a constitutional error, suppression of an
accused's postarrest statements is not an
appropriate remedy for a violation. United
States v. Page, 232 F.3d at 540-541; United
States v. Li (C.A.1, 2000), 206 F.3d 56, 61;
United States v. Lombera- Camorlinga (C.A.9,
2000), 206 F.3d 882, 885-886 (en banc). We
ordinarily do not suppress evidence as a remedy
for a statutory violation absent a violation of
an underlying constitutional right. State v.
Droste (1998), 83 Ohio St.3d 36, 40, 697 N.E.2d
620, 623; see, also, United States v. Thompson
(C.A.11, 1991), 936 F.2d 1249, 1251.
Justice Lundberg Stratton does not contend
that suppression is the appropriate remedy for
violation of any rights Issa may have had under
Article 36 of the Vienna Convention. Rather, she
argues that "the failure to inform the defendant
of his rights under the Vienna Convention
constitutes structural error" warranting
reversal. But this conclusion cannot possibly be
correct under the existing doctrine of
structural error. "Structural" errors are a
category of fundamental constitutional errors
that "are so intrinsically harmful as to require
automatic reversal * * * without regard to their
effect on the outcome." Neder v. United States
(1999), 527 U.S. 1, 7, 119 S.Ct. 1827, 1833, 144
L.Ed.2d 35, 46.7
Thus, a "structural error" necessarily
involves the deprivation of a constitutional
right. See Brecht v. Abrahamson (1993), 507 U.S.
619, 629-630, 113 S.Ct. 1710, 1717, 123 L.Ed.2d
353, 367 (describing structural errors as a
category of constitutional error defying
harmless-error analysis); Arizona v. Fulminante
(1991), 499 U.S. 279, 310, 111 S.Ct. 1246, 1265,
113 L.Ed.2d 302, 331 (describing structural
errors as "constitutional deprivations * * *
affecting the framework within which the trial
proceeds, rather than simply an error in the
trial process"); Sullivan v. Louisiana (1993),
508 U.S. 275, 282, 113 S.Ct. 2078, 2083, 124
L.Ed.2d 182, 191 (Rehnquist, C.J., concurring) (noting
that Fulminante "divided the class of
constitutional violations that may occur during
the course of a criminal proceeding" into "trial
error[s]," which are amenable to harmless-error
analysis and "structural defects," which are not).
Without some error affecting a criminal
defendant's constitutional rights, however, the
structural-error doctrine is simply not
implicated. And because a violation of the
Vienna Convention is not a
7. The United States Supreme Court has
recognized only a very limited category of
errors as "structural." These include the
complete denial of counsel, a biased trial judge,
racial discrimination in jury selection, denial
of the right to self-representation at trial,
denial of a public trial, and a defective
reasonable-doubt instruction. Neder v. United
States, 527 U.S. at 8, 119 S.Ct. at 1833, 144
L.Ed.2d at 46 (collecting cases).
constitutional error, see Murphy, 116 F.3d at
100, it therefore cannot be deemed "structural
error." Accord Garcia v. State (Nev.2001), 17
P.3d 994, 997.
Moreover, it is worth noting that the United
States Supreme Court has already undermined the
notion that a violation of Article 36 of the
Vienna Convention can be deemed structural
error. In Breard v. Greene, the Supreme Court
addressed Article 36 of the Vienna Convention in
the context of a federal habeas corpus action.
The defendant in Breard, a citizen of Paraguay
who was convicted of capital murder in a
Virginia court, filed a motion for habeas relief
in which he argued, for the first time, that
arresting authorities never informed him of his
right to contact the Paraguayan Consulate.
Breard, 523 U.S. at 373, 118 S.Ct. at 1354, 140
L.Ed.2d at 536.
The Supreme Court held that
Breard had procedurally defaulted his Vienna
Convention claim by failing to raise it in state
court. Id., 523 U.S. at 375, 118 S.Ct. at 1354,
140 L.Ed.2d at 537. The court rejected as "plainly
incorrect" the claim that the Vienna Convention
was "the `supreme law of the land' and thus
trump[ed] the procedural default doctrine." Id.
Significantly, the court also noted that,
even if Breard had properly raised his Vienna
Convention claim in state court, "it is
extremely doubtful that the violation should
result in the overturning of a final judgment of
conviction without some showing that the
violation had an effect on the trial." (Emphasis
added.) Id., 523 U.S. at 377, 118 S.Ct. at 1355,
140 L.Ed.2d at 538, citing Fulminante, 499 U.S.
279, 111 S.Ct. 1246, 113 L.Ed.2d 302.
that Breard would be unlikely to demonstrate
prejudice, the Supreme Court implicitly rejected
the notion that a proven violation of Article 36
of the Vienna Convention amounts to structural
error; by definition, a structural error
obviates any requirement of demonstrating
prejudice. See Neder, 527 U.S. at 7, 119 S.Ct.
at 1833, 144 L.Ed.2d at 45-46; see, also,
Lambright v. Stewart (C.A.9, 1999), 191 F.3d
1181, 1191-1192 (structural error does not
require showing of prejudice, even on federal
habeas corpus review).
For these reasons, I see no constitutional
barrier to this court utilizing a plain-error
analysis in disposing of Issa's arguments
concerning Article 36 of the Vienna Convention.
PFEIFER, J., concurring in
part and dissenting in part. As I stated in
dissent in State v. Murphy (2001), 91 Ohio St.3d
516, 562, 747 N.E.2d 765, 813, restricting the
universe of cases this court reviews when
conducting proportionality review "continually
lower[s] the bar of proportionality." This case
then will enable prosecutors to go where they
have never been before. For in this case, after
conducting proportionality review, a majority of
this court has upheld a sentence of death even
though the defendant was not the principal
offender, even though the principal offender did
not receive the death penalty, even though the
defendant was not present when the murder took
place, and even though the murder victim's wife,
who allegedly initiated the murder by paying the
defendant to get a gun, was acquitted.
None of this is to suggest
that Issa is not culpable for the murder. He is,
and I vote to affirm his convictions. He was an
active participant in the planning of the murder
and the murder almost certainly would not have
occurred without him. However, the facts remain:
Issa did not kill; Issa was not present during
the killing; the actual killer did not receive
the death penalty. If ever a sentence of death
deserved to be vacated because of
proportionality, this is it. But of course, we
cannot consider the case in which Issa's
accomplice received a life sentence because he
received a life sentence, and we cannot consider
the case in which the victim's wife was
acquitted because she was acquitted.
Never mind that the facts are
exactly the same; never mind that Issa was not
the trigger man, he was eligible to be charged
with capital murder, he was convicted of capital
murder, and he was sentenced to death. All the
rest, according to the majority, is irrelevant.
I beg to differ.
R.C. 2929.021 requires clerks
of courts to file with this court certain basic
information concerning each case in which a
capital indictment is filed. R.C. 2929.03(F)
requires trial courts to file a separate opinion
here when they impose a life sentence under R.C.
2929.03(D). This information would be helpful to
this court but it is seriously incomplete. We
should also receive information on every case in
which a capital indictment could have been
sought. We also should be informed of the
ultimate resolution of each potential or actual
Without this information, our
ability to conduct serious and thorough
proportionality review is significantly
Issa's death sentence should
be reversed because it is disproportionate to
those received by his accomplices. He should be
sentenced to life in prison. I dissent.
LUNDBERG STRATTON, J.,
dissenting. I respectfully dissent from the
majority's decision to affirm the defendant's
convictions and sentence of death.
The defendant was not
properly advised of his consular rights under
the Vienna Convention, Article 36, and,
therefore, I would reverse the judgment of the
trial court and remand for a new trial.
The Vienna Convention on
Consular Relations was created in 1963, and
today, more than one hundred sixty countries
have ratified the treaty. See State Department,
Pub. No. 10518, Consular Notification and
Access, January 1998: Instructions for Federal,
State, and Other Local Law Enforcement and Other
Officials Regarding Foreign Nationals in the
United States and the Rights of Consular
Officials to Assist Them (1998) at 42. The
United States signed the Vienna Convention on
April 24, 1963, and it became effective with
respect to the United States on December 24,
1969. 21 U.S.T. 77.
Article 36 sets forth the
framework for communication between foreign
nationals and their consuls and imposes
obligations on United States law enforcement:
"1. With a view to
facilitating the exercise of consular functions
relating to nationals of the sending State:
"* * *
"(b) if he so requests, the
competent authorities of the receiving State
shall, without delay, inform the consular post
of the sending State if, within its consular
district, a national of that State is arrested
or committed to prison or to custody pending
trial or is detained in any other manner. Any
communication addressed to any consular post by
the person arrested, in prison, custody or
detention shall also be forwarded by the said
authorities without delay. The said authorities
shall inform the person concerned without delay
of his rights under this sub-paragraph." (Emphasis
"Consular access serves two
functions. It serves the needs of foreign
nationals who benefit from prompt communication
with consular officials, as well as their
intervention during legal proceedings; at a
minimum, it provides a cultural bridge for
detained nationals who must otherwise navigate
through an unfamiliar and often hostile legal
system. It also enables governments to monitor
the safety and fair treatment of their nationals
abroad, to reassure relatives and friends at
home, to promote respect for human rights, and
to avoid disruptions in foreign relations that
could result from the mistreatment of detained
persons." Aceves, International Decisions:
Murphy v. Netherland (1997), 116 F.3d 97 (1998),
92 Am.J.Internatl.L. 87, 89-90.
In October 1973, the United
States Department of State concluded, "In the
Department's view, Article 36 of the Vienna
Convention contains obligations of the highest
order and should not be dealt with lightly."
Quoted in Aceves, The Vienna Convention on
Consular Relations: A Study of Rights, Wrongs,
and Remedies (1998), 31 Vand.J.Transnatl.L. 257,
270. Although the United States vigorously
insists on consular notification for its own
nationals, we often fail to comply with the
treaty regarding foreign nationals in our
country. Of the eighty- three foreign nationals
currently on death row in the United States, the
vast majority were not alerted to their right to
consular notification under the Vienna
Convention. Henry, Overcoming Federalism in
Internationalized Death Penalty Cases (2000), 35
Tex.Internatl.L.J. 459, 459-460, citing The
International Bannister Foundation, Reported
Nationals on Death Row in the United States, at
a now inaccessible web address; see related
Moreover, attempts to raise this issue have not
been successful. At least two thirds of foreign
nationals executed since reinstatement of the
death penalty in 1976 unsuccessfully raised the
Id. at 460.
Today, the majority follows
the trend by failing to recognize the
significance of defendant's rights under the
Vienna Convention. The majority concludes that
because defense counsel failed to raise
defendant's Vienna Convention claim in the trial
court, he has waived all but plain error, and
the majority goes on to find no plain error on
In my view, however, the
failure to inform the defendant of his rights
under the Vienna Convention constitutes
structural error, affecting " `the entire
conduct of the trial from beginning to end" as
well as the "framework within which the trial
proceeds.' " State v. Esparza (1996), 74 Ohio St.3d
660, 661, 660 N.E.2d 1194, 1196, quoting Arizona
v. Fulminante (1991), 499 U.S. 279, 309- 310,
111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331. I
agree with the majority that suppression is not
the remedy, however. Because the right to be
advised of consulate access rights affects every
aspect of a trial, I believe that the treaty's
provisions can be enforced only by starting anew.
Therefore, I believe that a new trial is the
On June 27, 2001, the
International Court of Justice agreed. The court,
which is the principal judicial organ of the
United Nations, delivered its judgment in the
LaGrand case, holding that the United States, in
arresting, detaining, trying, convicting, and
sentencing Karl and Walter LaGrand, violated its
international legal obligations to Germany, in
its own right and in its right of diplomatic
protection of its nationals, as provided by
Articles 5 and 36 of the Vienna Convention. See
Germany v. United States of Am. (2001), http://www.icj-
view the LaGrand case, ftp://ftp.sconet.state.oh.us\Opinions\2001\982449.pdf.)
The LaGrand brothers, born in Germany in 1962
and 1963 respectively, were arrested in 1982 in
Arizona and convicted of first degree murder,
attempted first degree murder, attempted armed
robbery, and two counts of kidnapping. Both
brothers were sentenced to death in 1984 for
The German consulate was made
aware of the case only in June 1992 by the
LaGrands themselves, who had learned of their
rights from other resources, and not from the
Arizona authorities. On December 21, 1998, the
LaGrands were formally notified by the United
States authorities of their right to consular
After the brothers' execution
dates were set for 1999, Germany intervened in
an attempt to prevent the execution of the
LaGrands. Although Germany sought on several
levels to prevent the execution of the LaGrands,
both were executed in 1999.
The International Court of
Justice noted that the United States conceded
that United States authorities failed to advise
the LaGrand brothers of their consular rights
under the Vienna Convention on Consular
Relations. The court held in a fourteen-to-one
decision that "by not informing Karl and Walter
LaGrand without delay following their arrest of
their rights under Article 36, paragraph 1(b),
of the Convention, and by thereby depriving the
Federal Republic of Germany of the possibility,
in a timely fashion, to render the assistance
provided for by the Convention to the
individuals concerned, the United States of
America breached its obligations to the Federal
Republic of Germany and to the LaGrand brothers
under Article 36, paragraph 1." Id. at paragraph
Moreover, the court held that
"by not permitting the review and
reconsideration, in the light of the rights set
forth in the Convention, of the convictions and
sentences of the LaGrand brothers after the
violations referred to in paragraph (3) above
had been established, the United States of
America breached its obligation to the Federal
Republic of Germany and to the LaGrand brothers
under Article 36, paragraph 2, of the Convention."
Id. at paragraph 128(4).
Further, the court held
that "by failing to take all measures at its
disposal to ensure that Walter LaGrand was not
executed pending the final decision of the
International Court of Justice in the case, the
United States of America breached the obligation
incumbent upon it under the Order indicating
provisional measures issued by the Court on 3
March 1999." Id. at paragraph 128(5).
court held that "should nationals of the Federal
Republic of Germany nonetheless be sentenced to
severe penalties, without their rights under
Article 36, paragraph 1 (b), of the Convention
having been respected, the United States of
America, by means of its own choosing, shall
allow the review and reconsideration of the
conviction and sentence by taking account of the
violation of the rights set forth in that
Convention." Id. at paragraph 128(7).
The LaGrand decision makes
clear that the United States must not take
lightly the provisions of the Vienna Convention
on Consular Relations. Today the majority does
that which the International Court of Justice
and even our Constitution warn against.
The Supremacy Clause, Section
2, Article VI of the United States Constitution
provides: "This Constitution, and the Laws of
the United States * * * and all Treaties made,
or which shall be made, * * * shall be the
supreme Law of the Land; and the Judges in every
State shall be bound * * *." (Emphasis added.)
This very court has held in
the past that the protections of treaties are on
par with the Constitution. In State v.
Vanderpool (1883), 39 Ohio St. 273, this court
reviewed the provisions of the Ashburton Treaty,
which provided for extradition, and held, "The
provisions of this treaty are part of the law of
the land, enforceable by the judicial tribunals
of this state, in behalf of a person so detained
and prosecuted." Id., paragraph two of the
syllabus. The court continued, "This treaty is
therefore the law of the land, and the judges of
every state are as much bound thereby as they
are by the constitution and laws of the Federal
or State governments. It is therefore the
imperative duty of the judicial tribunals of
Ohio to take cognizance of the rights of persons
arising under a treaty to the same extent as if
they arose under a statute of the state itself."
Id. at 276-277.
Thus, in addition to the
Supremacy Clause, this court in Vanderpool
clearly held that treaties are on par with the
Constitution, and we are bound by both.
Therefore, I would find that the failure to
advise the defendant of his rights under the
Vienna Convention is akin to the failure to
advise a defendant of his Sixth Amendment right
to counsel. See Gideon v. Wainwright (1963), 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
The majority finds that, as
in the case of a statutory violation, the
exclusionary rule is not an appropriate sanction,
absent an underlying constitutional violation,
unless the treaty expressly provides for that
remedy. I agree with the majority that exclusion
is not the remedy, but I would distinguish
Kettering v. Hollen (1980), 64 Ohio St.2d 232,
18 O.O.3d 435, 416 N.E.2d 598, in that it deals
with a statutory violation, not a treaty
violation. As noted above, I would find that the
failure to advise defendant of his rights under
the Vienna Convention equates to the failure to
advise him of his Sixth Amendment right to
effective assistance of counsel. See Vanderpool.
Therefore, as noted above, I would reverse and
remand to the trial court for a new trial.
The Vienna Convention offers
foreign nationals, who often have both cultural
and language barriers, the opportunity to obtain
information from their consul about the legal
system in which they are detained and how it may
differ from the legal system in the defendant's
home country. Particularly with foreign
nationals with language barriers, cultural
differences, and scarce resources, the Vienna
Convention can greatly enhance their ability to
defend themselves; likewise, our nationals in
foreign countries equally need such assistance.
Having grown up abroad and
having lived in three different foreign
countries, I have seen first-hand the vastly
different foreign legal systems and how our
nationals are often treated in a foreign land.
Article 36 of the Vienna Convention may provide
our nationals their only safeguard against a
hostile legal system.
The Vienna Convention offers
Americans abroad the comfort of reciprocity.
Under starkly different legal systems, where
rights we take for granted, such as the right to
counsel, a jury, discovery, cross-examination,
and open trials, are routinely not afforded by
other countries, how could our nationals
possibly prove that they did not waive their
consulate rights? With the closed trials and
secrecy of many legal systems, how could our
nationals overcome foreign legal barriers to
prove that the failure to provide access to a
consul resulted in an error at trial? Our best
way to ensure that other nations honor the
treaty by providing consular access to our
nationals is to demand strict adherence to the
right to consular access for foreigners in our
country. In that way, our nationals will be
provided an advocate to try to safeguard the
minimal protections we take for granted in the
When we excuse our failure to
advise the defendant of his consulate rights on
the ground that there was "no plain error," we
provide the very words and tools to other
countries to use to excuse their denial of
rights to our nationals, and the protections of
the treaty become meaningless. "If the right
under the treaty * * * can only be enforced by
the surrendering nation by protest or otherwise
against the one making the demand, that is, if
it is a question not cognizable in the courts,
it is of little value under our system of
Federal and state governments." Vanderpool, 39
Ohio St. at 277.
If the United States fails in
its responsibilities under the convention, then
other member countries may choose to do unto us
as we have done unto them.
Oliver Wendell Holmes said,
"Legal obligations that exist but cannot be
enforced are ghosts that are seen in the law but
that are elusive to the grasp." The Western Maid
(1922), 257 U.S. 419, 433, 42 S.Ct. 159, 161, 66
L.Ed. 299, 303. If we are to expect that our
nationals will be afforded the rights guaranteed
them under the treaty, we must guard the rights
of foreign nationals in our country as well. I
respectfully dissent and would reverse the
judgment of the trial court and remand the cause
for a new trial.
Proposition of Law No. I. A
treaty signed by the United States government is
the law of the land. Therefore, under the Vienna
Convention, Issa's rights were violated by the
police's and court's failure to inform him of
his right to meet with Jordan counsel.
Proposition of Law No. II.
The trial court allowing in hearsay statements
of Andre Miles as to Issa's alleged role in the
murders violated Issa's right to confront
witnesses, as mandated by the United States and
Proposition of Law No. III. A
defendant is denied effective assistance of
counsel as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments of the United States
Constitution and Sections 10 and 16, Article I,
of the Ohio Constitution, when defense counsel
fails to raise the issue of defendant's cultural
competency to stand trial, fails to have an
independent firearms expert, investigation or
crime scene experts.
Proposition of Law No. IV. A
change in the Ohio Constitution, which provides
less review to capital appellants (whose crimes
were committed on or after January 1, 1995)
violates the Fourteenth Amendment and fails to
provide the meaningful appellate review mandated
by the Eighth Amendment.
Proposition of Law No. V.
Appellant's indictment was returned by an
improperly constituted grand jury and upon
inadequately presented evidence in violation of
the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
Proposition of Law No. VI.
The prejudicial publicity, which occurred
throughout appellant Issa's trial, deprived him
of his right to a fair trial and a fair and
reliable sentencing determination as guaranteed
by the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
Proposition of Law No. VII.
Appellant's death sentence is excessive and
disproportionate to sentences in similar cases,
thereby depriving Mr. Issa of his rights under
the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, as
well as Sections 9 and 16, Article I of the Ohio
Proposition of Law No. VIII.
The process used to select the foremen of grand
juries which return capital indictments in
Hamilton County is biased. As a result,
appellant's rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United
States Constitution were violated.
Proposition of Law No. IX.
The defendant-appellant was prejudiced by a lack
of funds to adequately defend himself in this
litigation. As a result, Issa was deprived of
his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States
Proposition of Law No. X. The
judgment of conviction on the aggravated murder
counts [sic] is unsupported by legally
sufficient evidence and is contrary to the
manifest weight of the evidence, and as a result,
appellant's rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United
States Constitution were violated.
Proposition of Law No. XI.
Appellant was denied reasonable bond in
violation of his rights under the Fifth, Sixth,
Eighth, Ninth and Fourteenth Amendments to the
United States Constitution, as well as Article
I, Section 9, of the Ohio Constitution.
Proposition of Law No. XII.
The admission of gruesome and otherwise
prejudicial photographs which were cumulative of
each other as well as other evidence violated
appellant Issa's rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments.
Proposition of Law No. XIII.
Requiring that mitigating factors be proven by a
preponderance of the evidence violates the
Eighth, Ninth and Fourteenth Amendments to the
United States Constitution.
Proposition of Law No. XIV.
The trial court's application of Ohio's
statutory definition of reasonable doubt in the
mitigation phase of appellant's capital trial
deprived him of his rights under the Fifth,
Sixth, Eighth and Fourteenth Amendments to the
United States Constitution.
Proposition of Law No. XV.
Ohio's death penalty law is unconstitutional.
The Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States
Constitution and §§ 2, 9, 10 and 16, Article I
of the Ohio Constitution establish the
requirements for a valid death penalty scheme.
Ohio Revised Code §§ 2903.01, 2929.02, 2929.021,
2929.022, 2929.023, 2929.03, 2929.04 and
2929.05, do not meet the prescribed
constitutional requirements and are
unconstitutional on their face and as applied to
Ahmad Fawzi Issa.