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Donald L. PALMER

 
 
 
 
 

 

 

 

 


A.K.A.: "Duke"
 
Classification: Murderer
Characteristics: Argument - Robbery
Number of victims: 2
Date of murders: May 8, 1989
Date of arrest: May 23, 1989
Date of birth: February 11, 1965
Victims profile: Charles W. Sponhaltz, 43, and Steven R. Vargo, 41
Method of murder: Shooting
Location: Belmont County, Ohio, USA
Status: Sentenced to death on October 26, 1999. Executed by lethal injection in Ohio on September 20, 2012
 
 

 

State of Ohio
Adult Parole Authority

 
Clemency Report
 
 

 
 

Summary:

Palmer and accomplice Edward Hill were staking out the home of a man who once dated Palmer's ex-wife. As they were driving back and forth in front of the home, 43 year old Charles Sponhaltz, who was keeping an eye on the house, slowed his vehicle and was struck by the vehicle driven by Hill. Sponhaltz yelled, “What in the hell are you trying to prove?” Palmer then shot Sponhaltz twice in the head. Steven Vargo, a passing driver, stopped and asked “What the hell did you guys do?” Palmer then shot Vargo twice in the head. Sponhaltz’s body was dumped in a field; Vargo’s was left on the road. Upon arrest, Palmer confessed to police. Accomplice Hill was also convicted and sentenced to 35 years to life in prison.

Citations:

State v. Palmer
, Not Reported in N.E.2d, 1996 WL 495576 (Ohio App. 7 Dist. 1996). (Direct Appeal)
Palmer v. Bagley, 330 Fed.Appx. 92 (6th Cir. 2009). (Habeas)

Final/Special Meal:

A chipped ham and Velveeta cheese sandwich, ranch-flavored Doritos, peanut M&Ms, hazelnut ice cream, cheese cake and soda.

Final Words:

"I want you to know I've carried you in my heart for years and years," Palmer told six women in the room who are the widows, daughters and a niece of the men he killed. "I'm so sorry for what I took from you . . . I hope your pain and hurt die with me today." Palmer also told the women that he wished his execution could bring their loved ones back, and that he knows the pain of losing a parent, sibling and child. "I know it can't," he said. "I pray that you have good lives now. I'm sorry."

ClarkProsecutor.org


Ohio Department of Rehabilitation and Correction

IN RE: DONALD PALMER, CCI #A215-600
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: AUGUST 16, 2012
CRIME, CONVICTION: Aggravated Murder and Aggravated Robbery
DATE, PLACE OF CRIME: May 8, 1989 Mt. Pleasant, Ohio
COUNTY: Belmont
CASE NUMBER: 89CR038
VICTIM: Steven Vargo (age 41); Charles Sponhaltz (age 43)

INDICTMENT: Aggravated Murder with death penalty specifications; Aggravated Robbery, Aggravated Murder with Death Penalty Specifications, Aggravated Robbery, Aggravated Murder with Death Penalty Specifications.
DATE OF INDICTMENT: August 16, 1985
VERDICT: Guilty as charged.
DATE OF SENTENCE: October 26, 1989
SENTENCE: DEATH
ADMITTED TO INSTITUTION: November 1, 1989
JAIL TIME CREDIT: 168 days
TIME SERVED: 22 years, 9 months
AGE AT ADMISSION: 24 years old
CURRENT AGE: 47 years old
DATE OF BIRTH: February 11, 1965

JUDGES: Honorable Charles F. Knapp
PROSECUTING ATTORNEY: Frank Pierce


Ohio executes Donald Palmer

UPI.com

Sept. 20, 2012

LUCASVILLE, Ohio, Sept. 20 (UPI) -- Ohio Thursday executed Donald Palmer for the 1989 slaying of two men on a rural road in Belmont County. Palmer, 47, the second person to be executed this year in Ohio, died by lethal injection at 10:35 a.m.

He said in an interview last week he deserved to be executed for killing Charles Sponhaltz and Steven Vargo in what he called his "postal moment," The Columbus Dispatch Reported. "I killed two people. I've always accepted responsibility for the taking of their lives," Palmer said. "I believe in justice and I believe that the victims, their hatred, their anger, they need to have justice."

Before he was put to death Thursday -- in the presence of the widows of his victims, along with two of Sponhaltz's daughters, a niece and a friend of Vargo's -- Palmer said: "I want you to know I've carried you in my heart for years now. I am so sorry. I wish this could bring him back to you, but it can't. I only hope you let the pain and hurt die with me today."

Tiffany Nameth, who was married to Sponhaltz, said the apology "should have come a long time ago," the newspaper said. "When you murder somebody what good does an apology do?" she said. Vargo's window, Valerie Vargo-Jolliffe, said, "I'm glad this is finally over and justice is served for my late husband."

Palmer said he had been drinking and using drugs, and had been firing his gun out the window of a friend's car before the collision. He said he went to the pickup truck and, without provocation, shot Sponhaltz twice in the head -- and then shot Vargo shortly afterward when Vargo pulled over on the road. "I didn't kill him because I thought he was a witness. I killed him because he was there," Palmer said.


Palmer execution brings closure

By Fred Connors - TimesLeaderOnline.com

September 21, 2012

LUCASVILLE, Ohio - As Donald Palmer prepared to die Thursday morning by lethal injection, he turned his head toward the witnesses in the adjoining room and offered these final words: "To the Vargo and Sponhaltz families, I want you to know I have carried you in my heart for years and years. I'm sorry for what I took from you. The Lord has taken from me what I took from you. I know what it is like to lose a parent, sibling and child. I wish I could bring it back to you, but I can't. I hope the pain and hurt die with me here today. May God bless you and give you good lives. I'm sorry."

The state of Ohio executed Palmer at 10:35 a.m. Thursday for the May 8, 1989, murders of Stephen Vargo and Charles Sponhaltz. Members of both victims' families attended the execution at the Southeastern Correctional Facility in Lucasville and watched Palmer enter the death chamber shortly after 10 a.m. Thursday. Palmer positioned himself on the table before corrections officers strapped his body to the table with his arms outstretched on either side.

Sponhaltz's widow, two daughters and a niece looked on, as did Vargo's widow and a family friend. On the other side of a partition separating the viewing room into two sections, two clergymen and Palmer's attorney witnessed on his behalf. Media witnesses and penitentiary officials lined the wall at the rear of the room. Once Palmer was secured to the table, a curtain closed across the window and witnesses watched through a video monitor as the execution team inserted needles into Palmer's arms.

Tiffany Nameth, Sponhaltz's widow, remarked that she did not recognize Palmer when he walked in. She said later that the last time she saw him he was smaller and had long hair, unlike the much heavier and buzzed-cut Palmer she saw on Thursday. With the needles in place, the curtain opened and an attendant held a microphone near Palmer's mouth and asked if there were any last words. Palmer then offered his final remarks. He then turned away and the injection started. Some witnesses wiped tears as the process continued until a medic pronounced his death at 10:35 a.m.

Following the execution, Tiffany Sponhaltz Pugh, Sponhaltz's daughter, said, "I have been told over and over again from both family and friends that seeing the execution is something that I didn't want to do. They said that it would be an image that stayed in my mind forever. However, I have expressed to them that it would be much better than the image that I currently see in my mind when I think of my father's murder. In my mind I see my father's body tossed into the back of his truck lifeless and his cold dead eyes staring off into the distance.

CAUSE OF DEATH

A spokesman for the Scioto County coroner's office said the manner of death to be recorded on Donald Palmer's death certificate is homicide and the cause of death is lethal injection as per the execution protocol of the state of Ohio due to court-ordered execution.

"However, knowing that Mr. Palmer stated in court that the only thing that he saw when he closed his eyes at night in his cell was the eyes of my father, that makes me feel good in a way knowing that the actions that he took that night haunted him in such a way that he wasn't able to close his eyes and rest. Along with his last words, I believe that he regrets what was done. I do feel differently because he is dead. I feel that a big weight has been taken off my shoulders. The man I hated for so many years is gone. The closure is there; however, now I must walk the road to forgiveness and learn how to forgive him."

In a brief meeting with reporters after the execution, the families agreed that justice has been served.

Ohio Department of Rehabilitation and Corrections spokeswoman JoEllen Smith said Palmer arrived at Lucasville from the Chillicothe Correctional Institute shortly after 10 a.m. Wednesday. She said he spent his last hours visiting with his children, former wife, attorney and spiritual adviser. He watched television, listened to the radio and talked on the phone with friends and family members. He also wrote in a journal later given to his daughter, and he wrote some letters. "He was cooperative with staff members and his demeanor remained calm," she said. Smith said Palmer's last meal request included chipped ham and cheese with fresh tomatoes, a loaf of wheat bread, a bag of nacho chips, some peanut candy snacks, hazelnut ice cream, cheesecake and a cola.

ODRC Director Gary Mohr talked to reporters just prior to the execution. "This the most solemn task that we have," he said, "but it is a job we have to do. I must be involved with it to make sure it is a humane process and that we are in compliance with all policy issues." Smith said Palmer's body will be cremated at state expense and the ashes will be given to his family.


Palmer: Hill Not Guilty; Says Partner Was No Killer

By Fred Connors - TheIntelligencer.net

August 26, 2012

COLUMBUS, Ohio - Donald "Duke" Palmer does not want to carry guilt about his co-defendant Edward Hill's murder convictions into Ohio's death chamber. Palmer, 47, faces lethal injection on Sept. 20 for the May 8, 1989, murders of Steven R. Vargo, 41, and Charles W. Sponhaltz, 43, along Belmont County Road 2 near the Jefferson County line.

In a July 27 sworn declaration to the Ohio Parole Board, Palmer said Hill is another victim in the case who did not kill anybody. Following his Jan. 23, 1990 conviction, Belmont County Common Pleas Judge Jennifer Sargus sentenced Hill on Feb. 6, 1990 to life in prison with parole possible after 30 years for the aggravated murder of Vargo, 15 years to life for the murder of Sponhaltz, two terms of 10-25 years for the aggravated robberies of both men, and two three-year terms for firearm specifications.

Former Belmont County Prosecutor estimated Hill, 46, would not be eligible for parole until 2061 when he will be 95 years old. In his plea to the parole board, Palmer wrote, "I have lived with the knowledge that I've taken the lives of two men, made widows of their wives, and left their families to struggle without them. "There is nothing I can do or say to undo the pain I have caused. Nothing! I have lived a lot of regrets. "The families of Mr. Sponhalz and Mr. Vargo deserve peace and justice. (They) deserve to be given exactly what they ask of the State of Ohio. I know that my life should be forfeited. "There is, however, another victim in this case - Eddie Hill, my so-called co-defendant."

Palmer said Hill did not know, nor could he have anticipated, that Palmer would kill either man and that Hill was not on the road when he killed Vargo. "Eddie Hill was in so much shock from seeing me shoot Charles Sponhaltz in his presence, that he jumped over the hill on the side of the road and tried to hide from the reality of what I had done," Palmer wrote. "He was not present and could not have seen my encounter with Mr. Vargo and the second shooting. (Hill's) only crime that day happened after both men were shot dead. He made a poor choice of answering my pleas for help."

He told the board he filled with shame and remorse and regrets the harm he caused to the victims' families and to Hill and his family. He wrote, "As this board administers its justice in the recommendation to be made to the Governor on the justice deserved by the Sponhaltz and Vargo families, it should also make a recommendation for justice and some type of clemency for Eddie Hill. "My sole request of this board is to please do not let me die with the guilt of Eddie Hill's murder convictions. He is not in any way guilty of any kind of homicide. It was all my doing."

Palmer said he met with Hill's attorneys prior to Hill's trial, provided a tape-recorded statement, and offered to testify at trial to the facts of the case. "I deeply regret letting my new appeals attorney talk me out of my agreement to testify on behalf of Eddie Hill," he wrote. "I was more concerned about the repercussions for my own case that I was for seeing Justice done for (Hill). "I reluctantly followed my appeals attorney's advice and declared that I would refuse to testify under the Fifth Amendment if called to testify as a defense witness for (Hill). As a result, I was not called as a witness and the jury in Eddie Hill's trial never heard the full facts of what happened that day."

Hill's attorney, Barry Wilford of Columbus, said he plans to file a commutation of sentence petition with the parole board based partly on Palmer declaration and partly on Hill's prison record. "We will be seeking to modify the murder and aggravated murder convictions," Wilford said. "In support of his application, Eddie Hill will bring forward 23 years of a very positive institutional record. He has performed valuable community service, has a superior work history at the institution, and has strong family and community support."

He said he does not expect the parole board or the governor to accept Palmer's declaration at face value. "We will be showing other evidence that supports what Palmer said, but we don't believe his declaration should be a get of prison free card," Wilford said.

Belmont County Prosecutor Chris Berhalter said he does not want an innocent man sitting in prison, but he questions if Palmer can be believed. He said, "The real questions here are can Mr. Palmer be believed and is (Hill) innocent? He was convicted by a jury based upon evidence, and this evidence did not include testimony from Mr. Palmer. Mr. Hill declined to call him as a witness. "If Mr. Hill is innocent, what kind of man would allow him to sit in prison for 23 years of a life sentence? "We also cannot forget that Mr. Palmer has previously told completely different versions of what happened on May 8, 1989 when he brutally murdered his two victims. Therefore, how can we believe him now?"


Killer of two is executed; Palmer said he deserved death

By Alan Johnson - Dispatch.com

September 20, 2012

LUCASVILLE, Ohio - He deserved to die, Donald Palmer said. And so he did, this morning at 10:35. Palmer, 47, was lethally injected today for the May 8, 1989, gun slayings of Charles Sponhaltz and Steven Vargo on a rural Belmont County road. He was the second Ohioan executed this year.

The small witness room in the prison Death House was crowded. The widows of Palmer’s victims, Tiffany Nameth and Valerie Vargo Jolliffe, watched his execution, along with two of Sponhaltz’s daughters, a niece and a friend of Vargo’s. “I want you to know I’ve carried you in my heart for years now,” Palmer said in his last statement. “I am so sorry. I wish this could bring him back to you, but it can’t. I only hope you let the pain and hurt die with me today.”

After the exectution, Tiffany Nameth, widow of Charles Sponhaltz, “I feel today this comes to an end . . . I figure his apology should have come a long time ago. When you murder somebody what good does an apology do?” Valerie Vargo-Jolliffe, widow of Steven Vargo, said, ”I’m glad this is finally over and justice is served for my late husband.”

Palmer was unusual among the 48 men who have been executed in Ohio since 1999 because he acknowledged committing the murders and said he deserved the death penalty for his crimes. He refused to participate in the gubernatorial clemency process because he said he didn’t deserve mercy. “I killed two people. I've always accepted responsibility for the taking of their lives,” Palmer said in an interview last week. “I believe in justice and I believe that the victims, their hatred, their anger, they need to have justice.”

Palmer was a passenger in a friend’s Dodge Charger on May 8, 1989, when the vehicle rear-ended Sponhaltz’s pickup truck, which was stopped in the middle of the road. Palmer admitted he was drunk and high on drugs and had been firing his gun out the window of the car prior to the accident. Without provocation, Palmer shot Sponhaltz twice in the head. Minutes later, Vargo drove by and pulled over to see if he could help. “When I turned around, I ran almost dead into him,” Palmer recalled. “He said, ‘What the hell?’...That's all he got to say and I shot him. I mean that could have been anyone. That could have been my own mother.” Palmer offered no explanation. “I didn't kill him because I thought he was a witness. I killed him because he was there,” he said. He refers to the murders as his “postal moment.”

Palmer said in the interview that he was “searching for God and I found him in 2007.” He said he has been forgiven for his sins. No family members watched Palmer’s execution. His witnesses were two clergy members and a friend. For his last meal, Palmer chose chipped ham, Velveeta cheese, wheat bread and mayonnaise, Ranch Doritos, peanut M&M's, hazelnut ice cream, a slice of cheesecake and a Coke.


Ohio executes Donald Palmer for killing 2 strangers in 1989

Cleveland.com

September 20, 2012

LUCASVILLE, Ohio — An Ohio death-row inmate used his last words today to repeatedly apologize to the family members of his two victims, telling them that he hopes they can let their pain die with him.

Donald Palmer, 47, was executed at the state prison in Lucasville in southern Ohio about 23 years after he shot and killed two men he didn’t know along a rural Ohio road in 1989.

“I want you to know I’ve carried you in my heart for years and years,” Palmer told six women in the room who are the widows, daughters and a niece of the men he killed. “I’m so sorry for what I took from you ...I hope your pain and hurt die with me today.”

Palmer also told the women that he knows the pain of losing a parent, a sibling and a child, and that he wished his execution could bring their loved ones back to them.

“I know it can’t,” he said. “I pray that you have good lives now. I’m sorry.”

His time of death was 10:35 a.m.

Palmer was convicted of fatally shooting Charles Sponhaltz and Steven Vargo in the head along a Belmont County road in eastern Ohio on May 8, 1989.

Palmer didn’t know the men, who were both married fathers.

Palmer’s Columbus attorney, David Stebbins, said Wednesday that Palmer was sorry for the murders and never got the chance to apologize to the men’s families.

“He has always accepted responsibility for this and wants the families of his victims to have justice,” said Stebbins, who had planned to be among the witnesses to the execution.

Palmer had decided not to request mercy from the Ohio Parole Board, which can recommend clemency for a condemned inmate to the governor.

Belmont County prosecutor Christopher Berhalter told the board the execution should proceed because Palmer’s guilt is undisputed and because of the brutality of the crimes.

According to court records, Palmer told police that he and co-defendant Edward Hill were driving from Columbus to the Belmont County home of a man who had dated Palmer’s ex-wife and Hill’s sister.

As they were driving back and forth in front of the home, Sponhaltz — who was keeping an eye on the house — lightly hit the back of their pickup with his own truck and yelled at them: “What in the hell are you trying to prove?” according to the records.

Palmer then shot Sponhaltz twice in the head.

Vargo, a passing driver, stopped and asked “What the hell did you guys do,” Palmer told police, according to the records. Palmer then shot Vargo twice in the head.

Sponhaltz’s body was dumped in a field; Vargo’s was left on the road.

Hill, 46, was convicted for his role in the crimes and sentenced to 35 years to life in prison.

Valerie Vargo Jolliffee, 51, Vargo’s widow, told The Associated Press that she was planning to attend Palmer’s execution because he ruined her life.

She said that she and Vargo fell in love at first sight and had been married just two months when he was killed.

“I was looking forward to growing old with him,” she said. “I just can’t wait until it’s over. And it won’t be over until they put him to death.”

Sponholtz’s widow, two daughters and his brother also were expected to watch the execution.

Corrections officials say that Palmer asked that his last meal include a chipped ham and Velveeta cheese sandwich, ranch-flavored Doritos, peanut M&Ms, hazelnut ice cream, cheese cake and soda.

Ten Ohio inmates, including Palmer, are scheduled for execution through March 2014. Palmer will be the second this year if the execution goes forward.


Donald Palmer

ProDeathPenalty.com

On May 8, 1989, Steven Vargo and Charles Sponhaltz were found dead on a rural road in Belmont County, Ohio. During the investigation of this crime, the police uncovered significant evidence linking Edward Alan Hill and his friend, Donald L. Palmer, to the crime scene. They had been seen in the general vicinity of the crime scene both prior to and after the homicides occurred.

Early in the morning on the day of the homicides, Hill, who was driving a brown Dodge Charger, was stopped in the vicinity by the police. A brown Dodge Charger was seen leaving the scene of the crime in a reckless and hurried manner. The police also were contacted by a gas station attendant who had observed Hill on two occasions on the day of the murder. Hill’s mannerism were so suspicious that two attendants felt the need to copy Hill’s license plate number.

Later, the police also discovered physical evidence linking Hill to the crime scene -- finger and shoe prints on Charles Sponhaltz’s truck bed were determined to belong to Hill. On May 15, 1989, Donald Palmer contacted Columbus police officer Fred Thompson to inquire whether he was a suspect in the homicides. Palmer informed the officer that he and Hill had been in Belmont County on May 7 and 8 traveling in Hill’s brown Dodge Charger. He also stated that he was missing a .22 caliber pistol, the same caliber as used in the shooting. At the end of the conversation, Palmer gave the officer Hill’s telephone number. The officer contacted Hill and arranged a meeting. Prior to that meeting, the police located Hill, Palmer, and Hill’s vehicle and asked the men to accompanying the officers to the police station. The police also obtained Hill’s permission to impound his vehicle.

Hill, after being advised of his rights, did give a statement to police which placed him in the vicinity of the crime; however, when advised he was a suspect, Hill asserted his Fifth Amendment rights and refused to speak with the officers about the crime. Palmer, who was questioned next, confessed to the crimes and provided the police with information about Hill’s role in these crimes. Hill, who was advised of Palmer’s statement, was questioned briefly but again refused to speak about the crime. The next morning, Hill was taken to a hearing in the Franklin County court where he was represented by a public defender. The purpose of that hearing was to clear his transfer to Belmont County, Ohio where the crimes had occurred. On the ride between Franklin County and Belmont County he was encouraged by the transporting officer to tell what had happened but refused to speak. At Hill’s initial appearance, two days after he was arrested, Hill was appointed counsel by the court. Immediately following this initial appearance and prior to speaking with counsel, Hill and Palmer, for whom counsel also had been appointed, were transported back to the Belmont County jail. During this trip, Palmer asked the police whether they had found certain evidence about which Palmer had told them. The officer responded no, they had not. Hill then stated that he knew the location of the evidence. Upon arriving at the jail, Hill agreed to take the officers to this location.

The officers videotaped Hill’s statements that he was willing to lead police to the location of the evidence and that he understood his rights, including his right to have counsel present. Hill led the officers to the discovery of the victims’ wallets and personal items and spent shell casings. Prior to the introduction of evidence, defense counsel filed a motion to suppress all the evidence and statements obtained from Hill after his initial appearance. The court held a suppression hearing at which the officers and Hill testified. The trial judge found that Hill had initiated the conversation and validly waived his rights and consented to speak with the police; thus, she permitted the prosecution to introduce this evidence at trial.

Hill was indicted on six counts in association with the homicides of Sponhaltz and Vargo. Prior to his trial, Hill’s accomplice, Donald Palmer, was tried separately, was found guilty and sentenced to death. The press covered Palmer’s trial and reported Palmer’s testimony. Palmer had testified that he and Hill had intended to check out George Goolie’s home and do some target practice at a range near Goolie’s home. Sponhaltz was driving in front of Hill's vehicle on County Road 2. Both vehicles drove past George Goolie's residence at the corner of County Road 2 and Glen Robbins Road. After the vehicles had passed Goolie's residence, Sponhaltz suddenly slowed down or stopped in the roadway. Hill's vehicle struck the rear of Sponhaltz's pickup truck. The record is unclear why Sponhaltz would have slowed down or stopped in the roadway. However, when Palmer confessed to the murders, he told police that he was "almost positive" that Sponhaltz had purposely caused the collision. Following the accident, Sponhaltz and Hill got out of their vehicles and, according to Palmer, Sponhaltz started an argument with Hill. Palmer then got out of Hill's car with a loaded .22 caliber single-action revolver. Palmer said he attempted to intervene and, not thinking about the gun he was holding, hit Sponhaltz. The gun discharged and Sponhaltz fell to the ground. Hill yelled “Kill him, Kill him” and Palmer shot Sponhaltz two more times.

The evidence at trial was sufficient to show that the type of weapon used by Palmer could not have been fired unless the hammer mechanism was first pulled back and cocked. Palmer conceded that the gun must have been cocked and ready to fire when he allegedly struck Sponhaltz. He also testified that he had no idea that the gun was in his hand when he got out of the car. Palmer claimed that he ultimately shot Sponhaltz once by mistake and a second time as a result of confusion. Palmer's confession to police and his trial testimony indicate that a total of three shots may have been fired at Sponhaltz. The evidence at trial demonstrates that Sponhaltz was shot twice in the head. Thus, if three shots were fired, one of the shots obviously missed Sponhaltz, and the missed shot could have been either the first, second or the third shot fired. For each round fired, Palmer had to pull back and cock the hammer mechanism, and then pull the trigger. Additionally, if three shots were fired at Sponhaltz, it is reasonable to assume that Sponhaltz was shot once while he was standing and once after he fell to the ground or, alternatively, that Palmer fired both shots into Sponhaltz's head after Sponhaltz fell to the ground. During his confession, Palmer told police that he shot Sponhaltz twice after Sponhaltz fell to the ground and that he knew the shots would kill Sponhaltz.

Evidence was also presented that Palmer told Special Deputy David Taylor that he shot Sponhaltz and that he then "shot him again to make sure he was dead." Then Palmer turned and encountered Steven Vargo, a motorist who had come on the scene. Palmer also shot Vargo two times. Palmer testified that, without thinking, he simply "pulled the trigger" and Vargo was dead. However, during his confession, Palmer told police a different story. Palmer told police that after shooting Sponhaltz, Palmer went back to Hill's vehicle. Hill then asked Palmer to help load Sponhaltz's body into the bed of the pickup truck. While Palmer and Hill were loading Sponhaltz's body into the bed of the truck, Vargo pulled up to the scene, backed up, and parked his vehicle behind Hill's vehicle. Palmer then walked to the back of Hill's vehicle and shot Vargo in the head. Palmer admitted killing Vargo because Palmer had feared that Vargo may have witnessed the first shooting. Palmer's trial testimony that he backed away from Sponhaltz's body, turned, and ran directly into Vargo is also entirely inconsistent with the physical evidence at the scene of the homicides. Vargo's body was found approximately fifty feet from the location where Sponhaltz had apparently been shot. Therefore, unless Palmer backed away from Sponhaltz's body for some fifty feet before he allegedly turned and ran directly into Vargo, Palmer's story at trial was suspect and could have been disregarded by any rational trier of fact.

Further, Palmer's claim at trial that he simply "pulled the trigger" in order to kill Vargo was inconsistent with the evidence concerning the type of weapon Palmer used to kill his victims. The evidence at trial concerning the type of weapon used by Palmer would have made it impossible for him to have simply "pulled the trigger" to kill Vargo. Rather, Palmer would have had to pull back and cock the hammer mechanism, and then pull the trigger, for each shot fired. Moreover, Vargo was shot in an execution-style manner. He was shot once in the left side of head in the temple, and once in the right side of the head in the temple. The shot fired into the right side of Vargo's head had been fired from point-blank range. Palmer stated that Hill was by the car crying and holding Sponhaltz’s legs. Hill asked Palmer to help him place the body in the bed of Sponhaltz’s truck and Hill drove Sponhaltz’s truck away from the scene. Sponhaltz’s truck was found parked in a field about a mile from Vargo’s body. Palmer also testified that Hill took the wallets of the victims and hid them so that the victims could not be identified immediately. Hill, now 46, was sentenced to a term of 35 years to life.

UDPATE:

Donald Palmer's last statement was an apology to the family members of the victims. Witnesses included the widow of Charles Sponhaltz, Tiffany Nameth and his two daughters, Charlene Farkas and Tiffany Sponhaltz-Pugh. Steven Vargo's widow, Valerie Vargo Jolliffee, and niece were also in attendance. “I want you to know I’ve carried you in my heart for years and years,” Palmer said. “I’m so sorry for what I took from you ... I hope your pain and hurt die with me today.” Palmer said that he knows the pain of losing a parent, a sibling and a child, and that he wished his execution could bring their loved ones back to them. “I know it can’t,” he said. “I pray that you have good lives now. I’m sorry.”

Some of the victim witnesses spoke to the media following the execution, expressing their feelings that the apology was sincere, but not very impactful. Tiffany Sponhaltz-Pugh said, “We finally have closure to this situation after 23 years, but there’s nothing that can bring back my father.” Vargo's widow Valerie told reporters that Palmer ruined her life. She had Steven Vargo had only been married for two months when he was murdered. She said it was love at first sight for both of them and she was looking forward to growing old with him. In a letter to the parole board opposing clemency, Valerie wrote that Steven "was a loving man and always helped people. That led to his death. Palmer gave no leniency and deserves no leniency." Tiffany Nameth said, I'll never forget having to tell my children that their daddy would not be coming home." Her daughter Tiffany Pugh said of Palmer, "He not only took my father's life, he broke my family apart. He missed my softball games, graduation and wedding. He never got to see his three grandchildren. My father deserves justice."


Donald "Duke" Palmer - Death Row Ohio

My name is Donald Palmer and I've been on death row in the state of Ohio for more than 14 years.

I grew up moving from place to place, often going back to the town I was born in; Martins Ferry, Ohio.

I changed schools 21 times before graduating from Martins Ferry High School. I've lived in Ohio, Pennsylvania, Missouri, Connecticut, West Virginia, Kansas and Florida before being arrested. I've lived in more than 2 dozen places in those 7 states.

I grew up mostly as a poor kid, but did have a few years of wealth between the ages of 8-12, due to my mother's 3rd, and last marriage... which ended as a separation since 1978 until her death; Sept. '03.

I went to church (Protestant) off and on throughout my childhood. I believe in God, and I choose to believe in Christ.

I once read a quote which said, "God is too big to fit into one religion." I do not believe in "One True Religion".

I do not believe life is all there is all there is to our existence... simply because, if it is, there's no point to it!

That would mean that we're only here to propagate our species, and we are the only threat to the rest of life on this planet!

I believe the universe is of intelligent design. I believe man was made in the image of his Creator.

If Jesus was "God in the flesh", and He said, "Even the least among you can do all that I have done, and even greater things", then being made in His image also makes us "God". "God is love"... we've all heard that at some point in our lives.

So, when we love, we act as God. Love, in its purest sense, is not selfish. Yet, when we do a great kindness for a complete stranger, the reward is felt within us, and it does feel good, and I do it because it feels good. So, love can be selfserving, even if we end up helping someone in the process. Perhaps loves is selfish. Perhaps God is selfish in His love for His creation.

I believe in God because life has no meaning without something more than the life we live.

Being a death row inmate has given me an unique advantage over most people.

The death penalty exists because the majority of voters support it, so (in essense) I'm not fit to live among the majority. Being hated by the majority of society has freed me from the social makes that we all wear.

Suddenly, being anti-social seems to be a virtue, instead of a mental dysfunction. Why would I want to make a good impression for those who support "LEGAL" murder?

So, freed from what other people think of me, I have no need to put on any pretense.

I can be myself, and what other people think of me is none of my concern.

Secondly, I've been forced to deal with my mortality! Unless something changes, I'm going to be executed by the State of Ohio, on behalf of its citizens!

Once I had accepted the fact that I'm going to die. I've learned to live life.

I have no responsibilities; no bills, no job, no car... NOTHING!

It made me realize how much of our lives is wasted on "Things to do...".

At the end of life, when we're about to die, all we have to comfort us is our memories.

The tme we spend, needlessly, to acquire wealth is time we could've spent with loved ones.

So, this is my belief about life; Life is a journey. Every action we make in our lives begins with a thought. No one can place a thought in our minds... only we can put a thought there. We are the sole authors of what is in our minds, and therefore responsible for every action we make in life. If we think life sucks, it will. If we think life is good, it is. However you perceive life, that is how it will be for your. It is a choice, because the thought is yours... you put that thought into your mind, because you chose to see life that way. How you see life, at the end of your life, is how you chose to live it... and it's how you WILL see it.

I choose to spend my life with friends and family. Loving them, being loved by them, sharing the journey through its pain and troubles, and its pleasure and glory.

"I think, therefore I am"...

I've spent my 14 years on the row writing to penpals. I pick a handful of people who are "real", and I allow them to see all that I am.

Because I have no worries about whether people like me or not, I know that the ones who do bond with me like me for who I am. It allows me to weed through all the false pretenses and fake personalities.

And, I've found that people really do want to be known for who they are on the inside, but most are too frightened of what other people will think.

If only they would realise that what other people think of them has no effect on who they are.

It is what one thinks of oneself that makes us who we are.

Let's face it... I have nothing to lose, and nothing to gain. It'd be easy to be what people think I am; the worst Ohio has to offer, scum of the earth, unfit to live, murderer, etc etc. I could be bitter. I could hate the majority of society. But, I am not anything I've ever done, anything people say I am, anything I've been taught, anything I've been judged and convicted of being! I am who I choose to be! I don't hate the people who want to see me executed... I pity them.

The people who judge me don't define who I am, they define themselves as people who judge others. Only I know the thoughts in my mind, and I know I'm not anything people say I am. I am only who I think I am, and I have the power to be whoever I want to be,
simply by putting the thoughts in my mind, and by the actions those thoughts create.

Whether oone chooses to believe in God, or not... either way, you'll be right.

As for heaven and/or hell... I'll leave that to those no longer living.

As for me, I believe God is like the ocean, and we are but drops of water that inevitably will return to its source.

We ARE God, and will return to Him when our vessels can no longer contain Him.

How we exercise the God within us is all that matters.

I'm a death row inmate, and I'm a good person, and I'm glad to have lived this day.

That FACT pisses off the majority of our society, and I really don't find it to be any of my concern!

Live and let live!

Personal facts

Name: Donald L. Palmer, Jr. aka "Duke"
Date of Birth; February 11th, 1965
Height; 6'1"
Weight 220
Education: H.S. Diploma/Technical training
Conviction; Agg Murder (x2) Agg. Robbery (x2)
Sentence: Death
Years on Death Row; 14+
Hobbies; Writing, drawing, painting, reading, working out, introspection, poetry, singing and listening to music.
Goals: Enjoy life, no matter the circumstances, and die a better man.

Donald L. Palmer
#A215-600
878 Coitsville-Hubbard Rd
Youngstown, Ohio 44505

Ccadp.org


State v. Palmer, Not Reported in N.E.2d, 1996 WL 495576 (Ohio App. 7 Dist. 1996). (Direct Appeal)

COX, Judge.

This matter presents a timely appeal from a jury verdict and judgment upon such verdict rendered by the Belmont County Common Pleas Court, finding defendant-appellant, Donald L. Palmer, Jr., guilty on two counts of aggravated murder in violation of R.C. 2903.01(A), along with firearm and aggravating circumstances specifications; two counts of aggravated robbery in violation of R.C. 2911.01(A)(2), along with firearm specifications; and, two counts of aggravated murder in violation of R.C. 2903.01(B), along with firearm and aggravating circumstances specifications. This appeal also encompasses the death sentence recommended by the jury and imposed upon appellant by the trial court.

On May 7, 1989, appellant, along with his sister and the co-defendant in this matter, Edward Alan Hill, left Columbus, Ohio for Martins Ferry, Belmont County, Ohio. (Tr. 1074). Appellant contended that he made the trip to Martins Ferry for the purpose of picking up his sister's social security disability check. (Tr. 1074). On the following day, May 8, 1989, appellant and Hill took appellant's sister to cash her social security disability check, after which they dropped her off. Appellant and Hill thereafter drove in the vicinity of George Goolie's residence in Hill's vehicle, with Hill driving same. George Goolie had been dating appellant's ex-wife, Cammy Palmer. It is uncertain as to why appellant was in said location.

While appellant and Hill were driving past Mr. Goolie's residence, allegedly in preparation of a robbery, they came upon a white pickup truck which had either stopped or was going very slow, and which was being driven by Charles Sponhaltz. (Tr. 814). Appellant claimed at trial that the automobile in which he and Hill were riding struck the rear of said pickup truck. (Tr. 1093). Hill and Sponhaltz exited their vehicles and soon after an argument ensued. Sponhaltz apparently grabbed Hill, and appellant, who had gotten out of the vehicle by this time, shot Sponhaltz. After the first shot, appellant fired his gun at Sponhaltz once more, allegedly after hearing Hill say, “Shoot him again.” (Tr. 815). Both gunshots hit Sponhaltz in the left side of the head, causing his death. (Tr. 770). After shooting Sponhaltz, appellant took his wallet. (Tr. 816-817).

Immediately following the death of Sponhaltz, Steven Vargo appeared on the scene, pulling up behind Hill's vehicle. As appellant was returning to Hill's vehicle, he came upon Vargo. Appellant maintained that Vargo either went to grab him or put his arms up to prevent appellant from running into him. (Tr. 1097). At this point, appellant shot Vargo twice. (Tr. 1097-1099). One of the bullets entered the left side of Vargo's head, and the other entered the right side. (Tr. 780).

Steven Vargo and Charles Sponhaltz were found deceased on a rural road in Belmont County, Ohio, approximately one mile from each other. Vargo's body was in the roadway and Sponhaltz's body was found in the bed of his pickup truck. Both victims had money when last seen alive and when their wallets and other personal effects were eventually recovered, no money was found. Appellant and Hill returned to Columbus, Ohio and it was there, in the immediate vicinity of the Hoover Reservoir, that appellant reportedly threw his gun. (Tr. 816).

Prior to the homicides, in the early hours of May 8, 1989, Sergeant Jon Hawthorne of the Belmont County Sheriff's Department stopped Hill and appellant near the parking lot of a Knight's Inn. Hill's car apparently looked suspicious with its parking lights on and since there had been some recent thefts in the area, Sergeant Hawthorne decided to investigate the situation. He ran the license plates of the vehicle and subsequently discovered that it was registered to Edward Alan Hill. (Tr. 933). After determining that appellant and Hill were not currently engaged in any illegal activity, Sergeant Hawthorne let them go on their way. Later in the day, Sergeant Hawthorne made a connection between appellant and the homicides as Hill's vehicle fit a description of the vehicle spotted at the homicide scene. (Tr. 936).

After the discovery of the victims' bodies, Fred Thompson, an investigator with the Belmont County Sheriff's Department, commenced an investigation into the homicides. Based on Sergeant Hawthorne's connection between Hill's vehicle and the vehicle which was reportedly spotted at the homicide scene, Mr. Thompson began looking for a brown Charger with license plate number 546 STC. (Tr. 799-800).

On May 15, 1989, Mr. Thompson returned a telephone call which he had received from appellant. (Tr. 800-801). During the conversation, appellant asked Mr. Thompson whether or not he was a suspect in the homicides in question herein. Appellant then proceeded to tell Mr. Thompson that he and Hill were in Belmont County at the time of the homicides. It was at this time Mr. Thompson suspected that appellant and Hill were involved in the crimes. On May 16, 1989, Mr. Thompson drove to Columbus, Ohio where he located appellant and Hill at appellant's residence. Mr. Thompson subsequently took them to the local Columbus police station. (Tr. 805). It was there that appellant recounted the events of May 8, 1989. Appellant also advised Mr. Thompson as to the caliber of handgun used in the homicides. (Tr. 816).

On May 23, 1989, the Belmont County Grand Jury indicted appellant on four counts of aggravated murder in the deaths of Charles Sponhaltz and Steven Vargo with firearm and aggravating circumstances specifications, and two counts of aggravated robbery with firearm specifications. On May 30, 1989, appellant appeared in open court for arraignment and the trial court determined that he was indigent, thereby appointing counsel to represent him in this matter. Appellant then entered his not guilty plea on the record.

The record reflects that numerous motions and/or pleadings were filed herein, and all were heard and ruled upon by the trial court in due course. This matter proceeded to jury trial with plaintiff-appellee, State of Ohio, commencing its case on October 5, 1989. At trial, appellant alleged that he did not intend to cause the deaths of the within victims. (Tr. 1060). Appellant stated that as he went to strike Sponhaltz, who had physically grabbed Hill after the traffic accident, his gun accidentally discharged. (Tr. 1095).

Testimony offered by Belmont County Sheriff Thomas McCort refuted appellant's claim that his gun fired accidentally. (Tr. 993-994). Sheriff McCort stated that the type of gun used by appellant herein had a single action spur trigger, and that the hammer had to be pulled back before the gun could fire. In short, Sheriff McCort testified that it was impossible for appellant's weapon to have accidentally discharged without the hammer having first been pulled back. (Tr. 993-994).

Appellant claimed that the second shot fired at Sponhaltz was the result of mass confusion brought about by the situation. (Tr. 1095). This claim was likewise refuted by the testimony presented at trial. David Taylor, a deputy sheriff assigned to a suicide watch of appellant during his incarceration, testified that appellant told him he shot Sponhaltz again to make sure he was dead. (Tr. 1013-1014). With regards to Vargo's death, appellant claimed that everything happened so fast, he did not realize what he was doing. (Tr. 1097-1098). This claim was refuted at trial. Sheriff's deputies, David Taylor and William Hatzer, testified that while appellant was incarcerated, he informed them that he had shot Vargo because he feared Vargo had witnessed Sponhaltz's killing. (Tr. 1014, 1034).

On October 13, 1989, upon due deliberation of all evidence presented and testimony offered at trial, the jury returned a guilty verdict on all counts and specifications set forth in the indictment against appellant. (Tr. 1248-1257). During the mitigation phase of appellant's trial, which commenced on October 18, 1989, defense counsel presented evidence concerning appellant's youth, his lack of a significant criminal record, his intoxication, and the sequence of events in his life. Once all evidence was presented, the jury deliberated and concluded that the aggravating circumstances outweighed the mitigating circumstances, thereby recommending that appellant be sentenced to death. (Mitigation Tr. 165-166). The trial court subsequently accepted the jury's recommendation and sentenced appellant to death. (Mitigation Tr. 175). On November 28, 1989, appellant filed his notice of appeal.

Appellant sets forth twenty-four assignments of error on appeal. Appellant's first assignment of error alleges: “Appellant's conviction and death sentence must be set aside and a new trial ordered where the record on appeal is incomplete and where the record on appeal cannot be sufficiently completed, pursuant to App.R. 9, to ensure a meaningful appellate review as required by law, constitutional provisions, and by constitutional guarantees to due process, equal protection and against cruel and unusual punishment.” Appellant urges that because numerous proceedings at his trial were not recorded, ostensibly making a meaningful appellate review impossible, he is entitled to have his death sentence set aside and a new trial ordered. Specifically, appellant complains that proceedings such as side bar conversations, discussions which took place in chambers between the trial judge and counsel for both parties herein and many other conversations relevant to this case, were not recorded.

Crim.R. 22 clearly mandates: “In serious offense cases all proceedings shall be recorded.” In order to effectively claim his conviction should be reversed on the basis that the record on review is incomplete, appellant must show he made a request to have off-the-record proceedings recorded; made an effort to reconstruct the record; and, that he was prejudiced by the failure to record the proceedings in question. State v. Grant (1993), 67 Ohio St.3d 465.

Appellant maintains that he made an effort to complete and correct the record pursuant to App.R. 9. However, the record does not indicate appellant requested that any of the off-the-record proceedings be recorded. Further, and most importantly, appellant has failed to demonstrate how he was prejudiced herein. An appellant must prove the prejudice he believes he has suffered and where there is no proof of such prejudice, but only allegations, there are no grounds for reversal. State v. Spirko (1991), 59 Ohio St.3d 1. In Spirko, supra, the defendant-appellant claimed that without a complete transcript, he could not obtain meaningful appellate review. However, said defendant-appellant failed to explain how the alleged incomplete record precluded him from receiving such meaningful review. The Ohio Supreme Court stated: “Upon reviewing all the instances defendant claims were improperly recorded, we find that defendant has failed to demonstrate how he was prejudiced.” Spirko, supra.

Appellant argues that pursuant to R.C. 2929.05, a meaningful review is impossible without a complete record. R.C. 2929.05 provides, in pertinent part: “(A) * * * The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed * * * in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances * * * outweigh the mitigating factors in the case, * * *.”

Appellant interprets R.C. 2929.05 in such a way as to suggest that where there is not an absolutely complete record, a meaningful review is impossible. This is not what R.C. 2929.05 says. R.C. 2929.05 requires only that the reviewing court be persuaded from the record that the aggravating circumstances outweigh the mitigating factors present in a particular case. In the case at bar, the record is clearly sufficient to allow such a determination.

Though appellant's record is not absolutely complete, appellant did not request that the off-the-record proceedings be recorded, and did not demonstrate to this court how he was prejudiced by the lack of such proceedings in the record on review. Appellant's first assignment of error is found to be without merit.

Appellant's second assignment of error alleges: “The trial court erred by giving an incomplete and erroneous jury instruction on inferences and thereby deprived appellant of his rights to due process of law and against cruel and unusual punishment as guaranteed by the Constitution of the United States and the State of Ohio.” Appellant claims that the trial court's jury instructions concerning inferences were insufficient and erroneous as it failed to specifically instruct the jury that an inference could not be based upon another inference regarding intent. Therefore, appellant believes that he is entitled to have his death sentence set aside and a new trial ordered.

Crim.R. 30(A) reads, in pertinent part: “On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.”

As appellant did not object to the jury instructions at the time they were given, he is precluded from assigning this issue as error on appeal. State v. Underwood (1983), 3 Ohio St.3d 12. The only exception to this rule is in a case of plain error. We find no plain error in the case at bar. Had an additional or special jury instruction been given on inferences, the outcome of appellant's trial would not have been otherwise. The weight of the evidence, both circumstantial and direct, overwhelmingly demonstrated appellant's guilt.

The jury instruction in question, despite appellant's claim to the contrary, clearly articulated how inferences were to be drawn and set forth as follows: “To infer or to make an inference is to reach a reasonable conclusion of fact which you may make but are not required to make from other facts which you find have been established by direct evidence. (Emphasis added) (Tr. 1231).

Appellant contends that an inference cannot be drawn from an inference however, he is only partially correct. Though an inference cannot be drawn solely from another inference, it can be drawn from an inference combined with underlying evidentiary facts. State v. Ebright (1983), 11 Ohio App.3d 97, 99, citing Hurt v. Charles J. Transportation Co. (1955), 164 Ohio St. 329.

Appellant submits that the jury drew upon one inference after another to determine that he intended to kill his victims. We do not believe that this alone led the jury to its conclusion concerning appellant's intentions, as there was also sufficient direct evidence presented at trial upon which the jury could rely. It was the totality of the evidence, including statements which appellant made to deputy sheriffs during his incarceration to the effect that he shot Sponhaltz “to make sure he was dead” (Tr. 1014), and that he shot Vargo because he “might have witnessed the first shooting” (Tr. 1034), which led the jury to its findings. Appellant's second assignment of error is found to be without merit.

Appellant's third assignment of error alleges: “The trial court erred by permitting the admission of evidence of and argument about irrelevant and highly prejudicial ‘other acts' which appellant allegedly committed against a person not named in the indictments in the present case and thereby deprived appellant of his rights to due process of law and against cruel and unusual punishment.” Appellant alleges that “other acts” evidence was prejudicially admitted at trial, thereby denying him the right to due process of law. Appellant's contentions are based on statements and testimony regarding his alleged whereabouts, intentions and state of mind immediately prior to the within homicides. Appellant argues that said statements and testimony were improperly admitted under Evid.R. 404(B), which states: “(B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The testimony and statements in question herein did not concern any other crimes, wrongs or acts committed by appellant as set forth in Evid.R. 404(B). Therefore, the statements and testimony for which appellant complains do not fall under the purview of the “other acts” doctrine. Each case cited by appellant regarding “other acts” evidence is clearly distinguishable from the case at bar. In all such cases, the testimony in question dealt with actual crimes, wrongs, or acts committed by the defendants, not said defendants' whereabouts, intentions or state of mind, such as in the present case. (See, e.g. State v. Broom (1988), 40 Ohio St.3d 277).

Appellant additionally complains about certain testimony offered by George Goolie. Mr. Goolie testified that on the day of the within homicides, appellant called him on the telephone and referred to performing sexual acts with him and killing him afterwards. (Tr. 972). Appellant's complaint regarding this testimony is moot given the fact that prior to jury deliberations, the trial court ordered same be stricken from the record. (Tr. 1054). Appellant's third assignment of error is found to be without merit.

Appellant's fourth assignment of error alleges: “The admission of testimony which created the innuendo of ‘other acts' deprived appellant of his right to due process of law and violated his right against cruel and unusual punishment.” Appellant maintains that testimony concerning events leading up to the homicides was prejudicially admitted. Appellant contends such testimony created the innuendo that he committed other criminal acts and led the jury to convict him, not upon the basis of credible evidence but rather, upon inference.

Much of the testimony for which appellant complains concerns statements made by various individuals regarding suspicious behavior exhibited by appellant and Hill prior to the within homicides. Appellant points out that the testimony of two gas station attendants was admitted into evidence concerning two suspicious visits by appellant and Hill to their gas station just hours before the homicides. The attendants testified that appellant and Hill looked as if they were about to rob the place. (Tr. 948, 956-957). Appellant further believes that the testimony offered by Sergeant Hawthorne was prejudicially admitted into evidence. Sergeant Hawthorne was the police officer who stopped appellant and Hill in the parking lot of Knight's Inn and who later connected them with the description of the vehicle spotted at the homicide scene.

Appellant contends that inferences were drawn from the testimony in question which ultimately led to his conviction. This is not the case. We find that it was the totality of the evidence, not the testimony complained of herein, which led to appellant's conviction. A trial court has broad discretion with regards to the admission of evidence and unless it has abused its discretion, thereby causing a defendant to be materially prejudiced, an appellate court will not disturb the trial court's decision on appeal. State v. Joseph (1995), 73 Ohio St.3d 450. The term abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. A careful review of the testimony in question does not reveal that the trial court abused its discretion in admitting same into evidence.

Furthermore, a reversal of appellant's conviction would only be warranted in the event of plain error, which we do not find in the case at bar. Any error which may have occurred herein was harmless, not prejudicial. Had the testimony for which appellant complains been stricken from the record, the outcome of his trial would not have been otherwise. Appellee presented overwhelming evidence, including statements made by appellant himself, to demonstrate appellant's guilt in this case. Appellant's fourth assignment of error is found to be without merit.

Appellant's fifth assignment of error alleges: “The trial court erred by denying appellant's request for an instruction on the lesser included offense of involuntary manslaughter and thereby deprived appellant of his right to due process of law and against cruel and unusual punishment as guaranteed by the Constitution of the State of Ohio and the United States.” Appellant believes that he was denied due process of law when the trial court refused, over his objection, to instruct the jury on a charge of involuntary manslaughter, a lesser included offense of aggravated murder.

A two step process is required to determine if a jury instruction on a lesser included offense should be given. First, the trial court must determine whether the one offense is a lesser included offense of the other. If so, the trial court must then consider whether, under the particular facts of the present case, it is obligated to instruct the jury on a lesser included offense. (See State v. Clark (1988), 38 Ohio St.3d 252.) The Ohio Supreme Court in State v. Deem (1988), 40 Ohio St.3d 205, held that an offense may be a lesser included offense of another if: (1) the offense carries a lesser penalty than the other offense; (2) if the greater offense, as statutorily defined, cannot ever be committed without the lesser offense, as statutorily defined, also being committed; and (3) if some element of the greater offense is not required to prove commission of the lesser offense.

Since involuntary manslaughter is a lesser included offense of aggravated murder, it is necessary to determine if the trial court was obligated to instruct the jury on a charge of involuntary manslaughter. In State v. Thomas (1988), 40 Ohio St.3d 213, the Ohio Supreme Court held that a charge on a lesser included offense is required where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser included offense. We find that in the case at bar, the evidence adduced at trial could not reasonably have supported both an acquittal on aggravated murder and a conviction on a charge of involuntary manslaughter. The trial court's denial of appellant's request for such a jury instruction on involuntary manslaughter did not deprive him of his right to due process of law. Appellant's fifth assignment of error is found to be without merit.

Appellant's sixth assignment of error alleges: “The trial court erred by denying appellant's request for a jury instruction on the defense of self-defense and thereby denied appellant his right to due process of law against cruel and unusual punishment as guaranteed by the Constitution of the United States and the State of Ohio.”

Appellant urges that his death sentence be set aside and a new trial ordered due to the fact that the trial court failed to instruct the jury on self-defense. Where a defense has been raised and is supported by evidence, a trial court errs in refusing to instruct the jury on that defense. However, it is not error for a trial court to omit instructing the jury on a defense for which the evidence is insufficient. State v. Robinson (1976), 47 Ohio State 2d 103. In the case at bar, appellant's claim of self-defense was not supported by the evidence presented. Therefore, the trial court did not err in refusing to instruct the jury on such defense.

To sufficiently raise a claim of self-defense, a defendant must show the following: (1) that he was not at fault in creating the situation which gave rise to the affray; (2) that he had a bona fide belief he was in imminent danger of death or great bodily harm and his only means of escape from such danger was in the use of force; and (3) that he did not violate any duty to retreat or avoid the danger. State v. Robbins (1979), 58 Ohio St.2d 74. Appellant produced no evidence to establish that the three requirements as set forth in Robbins, supra were satisfied . Pursuant to R.C. 2901.05(A), the burden of proof was on appellant and due to the fact he failed to demonstrate that a self-defense instruction was warranted, the trial court did not err by refusing to so instruct the jury.

Appellant was apparently unable to demonstrate that he was entitled to use deadly force in defending himself. Therefore, he claimed instead that he was entitled to an instruction on self-defense involving less than deadly force. Appellant believes he was entitled to such an instruction given that he only went to strike Sponhaltz, not kill him, and therefore, his death was the result of an accidental discharge resulting from appellant's alleged proper use of non-deadly force.

We find that appellant was likewise not entitled to this type of jury instruction as same is only warranted when some force in self-defense, not likely to cause death or great bodily harm, is used to necessarily defend oneself. State v. Perez (1991), 72 Ohio App.3d 468, 472. The force used by appellant was not only likely to cause death or great bodily harm, it did cause great bodily harm and in fact, death. Even if appellant was initially entitled to use non-deadly force to strike at Sponhaltz, who had apparently grabbed Hill, he was not entitled to use the subsequent force which ultimately caused the deaths of both victims. Appellant addresses only the first shot at Sponhaltz herein and does not mention the additional three shots which he fired (at Sponhaltz and Vargo). In reviewing the totality of the events which transpired on May 8, 1989, it is obvious that appellant was not entitled to a jury instruction on either self-defense using deadly force or self-defense using less than deadly force. Appellant's sixth assignment of error is found to be without merit.

Appellant's seventh assignment of error alleges: “The trial court committed plain error by giving an erroneous and misleading jury instruction on the culpable mental state purposely and thereby deprived appellant of his right to due process of law and against cruel and unusual punishment.” Appellant alleges that he was deprived of his right to due process of law because the jury was given an erroneous and misleading instruction regarding the mental state “purposely.”

As was the case under appellant's second assignment of error, his claim of an erroneous and misleading jury instruction must fail since he failed to raise an objection during trial pursuant to Crim.R. 30(A). Underwood, supra. Absent plain error, the failure to object to alleged improprieties in jury instructions constitutes a waiver of such issue on appeal. Underwood, supra. Appellant contends that plain error was committed. However, the record does not support this assertion. To rise to the level of plain error, it must appear on the face of the record not only that the error was committed, but that except for the error, the result of the trial clearly would have been otherwise and not to consider the error would result in a clear miscarriage of justice. State v. Watson (1991), 61 Ohio St.3d 1. The outcome of appellant's trial herein clearly would not have been otherwise. Any error that may have been committed was harmless, not plain. Plain error is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Watson, supra. Appellant's seventh assignment of error is found to be without merit.

Appellant's eighth assignment of Error alleges: “The trial court committed plain error by failing to give a limiting instruction on ‘other acts' and thereby deprived appellant of his right to due process of law and violated appellant's right against cruel and unusual punishment.”

Appellant acknowledges that defense counsel did not object to the trial court's failure to give a limiting instruction regarding “other acts” testimony and thus, this court must review this issue only for plain error. Appellant states that plain error was committed by the trial court in failing to give such limiting instruction.

As previously discussed under appellant's third assignment of error, the testimony for which he complains was not that of “other acts” falling under the purview of Evid.R. 404(B). Furthermore, any error which may have been committed was harmless, not plain, and would not thereby warrant a reversal of appellant's conviction herein. (See, Joseph, supra.) Appellant's eighth assignment of error is found to be without merit.

Appellant's ninth assignment of Error alleges: “The trial court erred by allowing the admission of a handgun which was not properly authenticated and was irrelevant, confusing and misleading, in derogation of the appellant's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16 Article I, and Section 26, Article II of the Ohio Constitution.”

Appellant believes his death sentence should be set aside and a new trial ordered due to the fact that a .22 caliber pistol, which was not the actual weapon used in the commission of the within crimes, was admitted into evidence without being properly authenticated pursuant to Evid.R. 901(A). Appellant expends much effort in his attempt to convince this court that there has been a violation of Evid.R. 901(A) however, Evid.R. 901(A) is irrelevant to appellant's claim hereunder. Had the prosecuting attorney claimed that the .22 caliber pistol in question was the weapon used by appellant in the commission of the within homicides, authentication pursuant to Evid.R. 901(A) would have been required. However, this is not what the prosecuting attorney attempted to do. Appellant concedes that the prosecuting attorney made no attempt to demonstrate any nexus between the weapon in question and the offenses with which appellant was charged in the indictment.

The purpose of authentication is to establish that the matter in question is what its proponents claim that it is. (See Evid.R. 901.) Because the prosecuting attorney never claimed that the .22 caliber pistol in question was the weapon used in the within homicides, it was not necessary to authenticate same. The prosecuting attorney properly identified the weapon herein as being only a model and never suggested to the trial court or the jury that it was anything but a model. In addition, appellant testified that the actual weapon and the exhibit in question were similar and required the same process in order to be discharged. (Tr. 1112-1113).

The trial court properly admitted the .22 caliber pistol into evidence as it was used solely demonstratively to refute appellant's claim that his weapon fired accidentally. Further, the trial court specifically instructed the jury that the pistol was used only to demonstrate what had to be done in order to fire a gun similar to that which appellant had in his possession during the commission of the within crimes. (Tr. 1144-1145). The admission of demonstrative evidence is largely a matter within the discretion of the trial court. (See, Joseph, supra.) Thus, it is within the trial court's discretion to allow or disallow a given exhibit and its decision will not be disturbed unless a clear abuse has been shown to materially prejudice a defendant. Joseph, supra.

In the case at bar, appellant submits that the trial court's admission of the .22 caliber pistol into evidence was prejudicial to him however, he fails to support such allegation and makes no showing that the trial court abused its discretion. Appellant simply states that admitting the pistol into evidence confused and misled the jury. We find that appellant has failed to demonstrate that he was prejudiced by the admission of the .22 caliber pistol into evidence, a necessary step towards finding that the trial court abused its discretion. Appellant's ninth assignment of error is found to be without merit.

Appellant's tenth assignment of error alleges: “The trial court erred by allowing the admission of the unsworn testimony of a witness and thereby violated appellant's constitutional right to due process of law and Article I, Section 7 of the Constitution of Ohio.”

Sheriff Thomas McCort testified at trial that it was impossible for the type of pistol appellant used in the commission of the within homicides to fire without the hammer first having been pulled back. (Tr. 994). This testimony was important in that it refuted appellant's assertion that Sponhaltz was shot accidentally. Appellant seeks reversal of his conviction on the grounds that Sheriff McCort was not sworn prior to his testimony. According to appellant, this violated his right to due process of law. Appellant discusses the importance of oaths and cites various cases wherein convictions were reversed in the absence of oaths however, he leaves out one very important point-a reversal will not be granted where no objection was made to the alleged unsworn testimony at the time of trial.

The rule is well established that a party may not, on appeal, raise a claim that the oath of a witness was omitted unless objection thereto was made at trial since, if no objection was made, any alleged error is considered waived. State v. Rosa (1988), 47 Ohio App.3d 172, citing Stores Realty Co. v. Cleveland Board of Building Standards and Building Appeals (1975), 41 Ohio St.2d 41. A thorough review of the record herein fails to indicate appellant timely objected to the proposition that Sheriff McCort may not have properly been administered an oath. Appellant's tenth assignment of error is found to be without merit.

Appellant's eleventh assignment of error alleges: “The prosecutor's misconduct during voir dire denied appellant his due process right to a fair trial.” Appellant alleges that he was denied a fair trial since during voir dire, the prosecuting attorney repeatedly asked prospective jurors if they could consider imposing the death penalty against appellant, in particular. The law regarding questions asked of veniremen is clear. The prosecuting attorney may ask prospective jurors if they could consider imposing the death penalty “in this case”, “on this defendant”, on “this particular defendant” and by using words of similar import. State v. Lorraine (1993), 66 Ohio St.3d 414. Appellant's eleventh assignment of error is found to be without merit.

Appellant's twelfth assignment of error alleges: “Prosecutorial misconduct during the guilt phase of appellant's trial deprived appellant of his right to due process of law and against cruel and unusual punishment.”

Appellant maintains that various parts of the prosecuting attorney's closing argument prejudiced and deprived him of his right to due process of law. Among the parts of said closing argument for which appellant complains are: alleged misstatements of law, a discussion of alleged “other acts” and certain alleged pleas to the jury to convict appellant as part of their duty to society. During closing argument, the prosecuting attorney informed the jury that to convict for aggravated murder, prior calculation and design, “there is no legally required period of time [for contemplating murder]” which is necessary for a finding of guilt. (Tr. 1154). The prosecuting attorney pointed out that appellant testified the whole incident happened within ten to fifteen seconds, thereby suggesting, according to appellant, that ten to fifteen seconds was sufficient. (Tr. 1154).

The Ohio Supreme Court set forth the interpretation of the phrase “prior calculation and design” in State v. Reed (1981), 65 Ohio St.2d 117, quoting State v. Cotton (1978), 56 Ohio St.2d 8, as follows: “ * * * The apparent intention of the General Assembly in employing this phrase was to require more than the few moments of deliberation permitted in common law interpretations of the former murder statute, and to require a scheme designed to implement the calculated decision to kill. Thus, instantaneous deliberation is not sufficient to constitute ‘prior calculation and design.’ ” The prosecuting attorney does not instruct the jury on the law, the trial judge does. Although the prosecuting attorney misstated the law with regard to the issue of prior calculation and design, the trial judge correctly instructed the jury concerning same. (Tr. 1208).

The prosecuting attorney's comment concerning “prior calculation and design” was not objected to at trial and thus, all but plain error is waived. State v. Johnson (1989), 46 Ohio St.3d 96, 102. In accordance with Crim.R. 52 and the standards set forth in United States v. Hastings (1983), 461 U.S. 499, 510-511 and State v. Smith (1984), 14 Ohio St.3d 13, 15, a reviewing court must ask: Absent the prosecuting attorney's alleged misconduct, is it clear beyond a reasonable doubt that the jury would have returned a guilty verdict? We answer in the affirmative. As nothing in the record suggests that but for the prosecuting attorney's comment, the outcome of the within trial would have been otherwise, we find the alleged error to be harmless.

Appellant urges that the prosecuting attorney misstated the law in other ways as well. Appellant argues that the prosecuting attorney suggested to the jurors that they could draw inference upon inference, and that a finding of guilt upon the felony murder charges meant a finding of guilt on the felony specifications. We have previously discussed the issue concerning inferences under appellant's second assignment of error. With regards to the allegation that a finding of guilt upon the felony murder charges meant a finding of guilt on the felony specifications, we find that the prosecuting attorney was only comparing the two concepts as a means to simplify what had to be proven.

Appellant further contends he was deprived a fair trial as a result of the prosecuting attorney's discussion during closing argument concerning “other acts,” and due to the prosecuting attorney's alleged pleas to the jury to convict based on their duty to society. We have previously addressed the “other acts” issue under appellant's third assignment of error. We further find that the prosecuting attorney did not improperly suggest to the jury to convict appellant regardless of the evidence. He suggested that if they believed, based on all the evidence presented, that appellant was guilty, then it was their duty to convict. (Tr. 1200). The prosecuting attorney did not suggest that a conviction was warranted in the absence of probative evidence. Appellant's twelfth assignment of error is found to be without merit.

Appellant's thirteenth assignment of error alleges: “There is constitutionally insufficient evidence to sustain appellant's convictions for four counts of aggravated murder and two counts of robbery.”

The 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. An appellate court may only weigh evidence to determine if it is sufficient to support a finding of guilt. State v. Tyler (1990), 50 Ohio St.3d 24, 33. Further, we are mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. Wilson (1996), 74 Ohio St.3d 381.

Appellant claims that there was insufficient evidence to sustain his conviction on the four counts of aggravated murder and two counts of aggravated robbery. Appellant was convicted on two separate counts of aggravated murder, prior calculation and design. We have previously set forth, under appellant's twelfth assignment of error, the meaning of prior calculation and design as interpreted by the Ohio Supreme Court in Reed, supra. Based upon a thorough review of the record, we are convinced that a rational trier of fact could have found all elements of appellant's two charges for aggravated murder, prior calculation and design, proven beyond a reasonable doubt.

With regards to the two felony murder charges, one charge against appellant was for the killing of Charles Sponhaltz. After appellant shot Sponhaltz, he took his wallet and appellee successfully argued that this was the underlying felony for said felony murder charge. To obtain a conviction for aggravated murder (felony murder), appellee had to demonstrate that the death of the victim was purposely caused while appellant was committing, attempting to commit, or fleeing immediately after committing or attempting to commit, aggravated robbery. R.C. 2903.01(B). The evidence presented at trial indicated that appellant intended to rob and kill Sponhaltz. The fact that Sponhaltz was dead before appellant removed his wallet is not persuasive. The felony murder charge against appellant for the killing of Steven Vargo was brought as a result of the killing of Sponhaltz. We find that there was sufficient evidence to support a guilty verdict on all charges herein. Appellant's thirteenth assignment of error is found to be without merit.

Appellant's fourteenth assignment of error alleges: “The trial court erred and deprived appellant of his constitutional right to due process of law and against cruel and unusual punishment by failing to order the election of counts prior to the sentencing phase of appellant's trial.” Appellant claims that the trial court failed to order the election of counts and thereby deprived him of his right to due process of law.

Pursuant to R.C. 2941.25(B), a defendant may be charged with multiple counts. The Ohio Supreme Court has held that although it is error for a trial court to sentence a defendant on two aggravated murder counts, such error is harmless as it is merely procedural in nature and does not affect any substantial right of a defendant. State v. Cook (1992), 65 Ohio St.3d 516, 527. Although appellant was charged with and convicted on two counts of aggravated murder for each victim, just as in Cook, supra, the trial judge imposed only a single death penalty and therefore, only one judgment of conviction. As a result, appellant suffered no prejudice from having been sentenced to death based on having been found guilty of both aggravated murder counts for each victim herein. Appellant's fourteenth assignment of error is found to be without merit.

Appellant's fifteenth assignment of error alleges: “The trial court erred by excluding relevant mitigation evidence at the penalty phase of Mr. Palmer's capital trial, in violation of his rights to an informed, individualized determination of the appropriate penalty and to his constitutional rights to due process and against cruel and unusual punishment.”

During the penalty phase of appellant's trial, he sought to admit the testimony of Reverend Bush to mitigate the aggravating circumstances herein. The trial court refused to admit such testimony but permitted defense counsel an opportunity to proffer same into evidence.

In State v. Gilmore (1986), 28 Ohio St.3d 190, 191, the Ohio Supreme Court held: “A party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked.” Appellant failed to proffer Reverend Bush's testimony into evidence and it is not readily apparent from the context of the transcript what Reverend Bush's testimony would have been. Consequently, appellant cannot now complain. Appellant's fifteenth assignment of error is found to be without merit.

Appellant's sixteenth assignment of error alleges: “Prosecutorial misconduct during the penalty phase of appellant's trial deprived appellant of his right to due process of law and against cruel and unusual punishment.”

Appellant maintains that during the penalty phase of his trial the aggravating circumstances were grouped together to mislead the jury that there were more of them than there actually were; the prosecuting attorney led the jury to believe the burden was on appellant to prove that the mitigating circumstances outweighed the aggravating circumstances; the prosecuting attorney improperly stated that the word “mitigation” was not synonymous with the word “explanation”; and, the prosecuting attorney improperly told the jury they could not consider intoxication as a mitigating circumstance. Appellant states that as a result of this misconduct, he was denied his right to due process of law.

During opening statements to the jury, the prosecuting attorney told the jury that “ * * * you have already found * * * that the defendant is guilty of three aggravating circumstances in the case.” (Mitigation Tr. 14). In the charges against appellant for the killing of Sponhaltz, there were only two aggravating circumstances. Appellant alleges that the prosecuting attorney's statement led the jury to believe there were three aggravating circumstances for said charge. Though the prosecuting attorney's statement may have been misleading, what aggravating circumstances there were, and how many per charge, was specifically outlined in the jury instructions, hence correcting any ambiguity the jury may have had. Further, even if there were any error, the error is harmless.

Appellant's next claim is that the burden of proving that the mitigating factors outweighed the aggravating circumstances was prejudicially shifted to him. The instructions given to the jury cleared any ambiguity as to who had the burden of proof. (Mitigation Tr. 161).

Next, appellant alleges that the prosecuting attorney misled the jury when he said that the word “mitigation” was not synonymous with the word “explanation.” Any error resulting from the prosecuting attorney's statement regarding “mitigation” and “explanation” was harmless.

Finally, appellant asserts that to his prejudice the prosecuting attorney informed the jury that it could not consider intoxication as a mitigating circumstance. However, we find that the prosecuting attorney merely stated that he did not believe intoxication should be considered as a mitigating factor. (Mitigation Tr. 144). The jury was free to consider intoxication if it chose to do so.

Appellant claims that numerous errors were made during the penalty phase of his trial however, he failed to object to these alleged errors when they supposedly occurred. Absent plain error, which does not exist in the present case, a failure to object to alleged improprieties at their occurrence, prevents same from later being assigned as error upon appeal. State v. Phillips (1995), 74 Ohio St.3d 72, 83. Appellant's sixteenth assignment of error is found to be without merit.

Appellant's seventeenth assignment of error alleges: “The trial court's instruction at the sentencing phase of Mr. Palmer's trial which required the jury to be unanimous in their decision that the defendant was to receive a life sentence violated the Eighth and Fourteenth Amendments to the United States Constitution.”

During the sentencing phase of appellant's trial, the following jury instruction was given: “You shall recommend the death sentence, if you unanimously find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. If you do not so find as to any one or all of the four counts of the indictment, you shall unanimously recommend either life sentence with parole eligibility after serving 20 years of imprisonment or life sentence with eligibility after serving 30 years of imprisonment.” (Mitigation Tr. 162).

Appellant contends said jury instruction was unconstitutional and misleading as it suggested to jurors that the only way they could impose a sentence less than death was if they unanimously agreed. The Ohio Supreme Court has held that such jury instructions are correct and appropriate. State v. Williams (1986), 23 Ohio St.3d 16. Additionally, appellant did not raise any objection to the jury instructions at the time of sentencing. Absent plain error, which does not exist herein, failure to timely object waives any future right which appellant may have had to bring this issue on appeal. Underwood, supra. Appellant's seventeenth assignment of error is found to be without merit.

Appellant's eighteenth assignment of error alleges: “The trial court erred by allowing the jury to consider multiple specifications which arose from an indivisible course of conduct and thereby deprived appellant of his right to due process of law and against cruel and unusual punishment.”

Appellant alleges that he was deprived due process of law because the jury was allowed to consider multiple specifications which arose from an indivisible course of conduct. Appellant asserts that the specifications should have been merged, and since they were not, the aggravating circumstances herein were artificially inflated and the death penalty was arbitrarily imposed against him.

Appellant's claim fails for two reasons. First, appellant did not request that the specifications be merged. Second, even if the specifications should have been merged, a trial court's failure to do so is not in and of itself automatic grounds for reversal. Because appellant did not request a merger of the specifications, he waived any future right which he may have had to bring this issue on appeal. Cook, supra. In the event that the specifications should have been merged, an appellate court does not necessarily have to reverse the case for a new trial or resentencing, as it may merge the specifications as part of its own independent weighing process. State v. Jenkins (1984), 15 Ohio St.3d 164. Appellant's eighteenth assignment of error is found to be without merit.

Appellant's nineteenth assignment of error alleges: “The trial court erred by failing to instruct the jury during the penalty phase that they were required to consider each count of aggravated murder separately and that only the aggravating circumstances proven in the individual counts should be weighed against the mitigating circumstances.” Appellant argues that the aggravating circumstances specifications of all the aggravated murder counts were combined for each individual count and weighed against the mitigating factors, hence depriving him of a fair weighing process.

The trial court specifically instructed the jury that only the aggravating circumstances of each count were to be weighed against the mitigating factors. (Mitigation Tr. 159-162.) Further, the verdict forms for each conviction specifically stated that only the proven aggravated circumstances of each count were to be weighed against the mitigating factors. Because appellant failed to request additional instructions, he cannot complain of any alleged error now. State v. Underwood (1983), 3 Ohio St.3d 12. If any error does exist, it can be cured during this court's independent weighing process as an error of this nature does not constitute automatic grounds for reversal. (See State v. Combs (1991), 62 Ohio St.3d 278, 289). Appellant's nineteenth assignment of error is found to be without merit.

Appellant's twentieth assignment of error alleges: “The ineffective assistance of counsel provided by trial counsel violated appellant's rights, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10 and 16 of the Ohio Constitution.” The benchmark for judging a claim of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington (1984), 466 U.S. 668. To prevail, an appellant must show that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, when considering the totality of the evidence that was before the court. Strickland, supra.

Appellant alleges that his counsel committed the following errors, thereby depriving him of his right to effective assistance of counsel: defense counsel failed to obtain a ruling from the trial court on his motion regarding the cumulative effect of the victims' photographs on the jury; defense counsel failed to insure the recording of the jury view, numerous bench conferences, conferences in the trial judge's chambers and discussions between the prosecuting attorney and himself; defense counsel failed to object to the introduction of “other acts” testimony, prosecutorial misconduct, jury instructions regarding “other acts” and inferences and the unsworn testimony of Sheriff McCort; and, defense counsel failed to be adequately prepared for trial, including the penalty phase.

We find that appellant has failed to demonstrate he received ineffective assistance of counsel. Defense counsel's errors, if any, were not so egregious as to render the results of appellant's trial unreliable. It cannot be said that but for defense counsel's errors, the result of the proceedings herein would have been different. We believe defense counsel's conduct fell within the range of reasonable, professional assistance. Appellant's twentieth assignment of error is found to be without merit.

Appellant's twenty-first assignment of error alleges: “The independent weighing process conducted by the trial court pursuant to R.C. 2929.03(D)(3) and (F) was faulty and resulted in a death verdict which was contrary to the weight of evidence and in violation of appellant's right against cruel and unusual punishment.”

Appellant's claim that the independent weighing process conducted by the trial court was faulty cannot be ascertained from the record. Pursuant to R.C. 2929.03(F), when a sentence of death is imposed, the trial court must issue a separate opinion explaining why the aggravating circumstances, which the offender was found guilty of committing, were sufficient to outweigh the mitigating circumstances. In the trial court's opinion imposing a death sentence on appellant herein, no reasoning, as required by R.C. 2929.03(F), was given.

Though the trial court gave no reasons concerning why the aggravating circumstances outweighed the mitigating circumstances in the case at bar, this is not, in and of itself, grounds for reversal. (See State v. Johnston (1988), 39 Ohio St.3d 48.) This court must perform its own independent weighing process pursuant to R.C. 2929.03 and must independently determine whether the aggravating circumstances outweighed the mitigating circumstances. Appellant's twenty-first assignment of error is found to be without merit.

Appellant's twenty-second assignment of error alleges: “The proportionality review that this court must conduct in the present case pursuant to R.C. 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05.”

Pursuant to R.C. 2929.05, this court must conduct a proportionality review to determine if the death sentence was an appropriate punishment herein. To determine if the given punishment was proportional to the within crimes, this court must look at other capital cases and make comparisons. Appellant believes that such process is fatally flawed because only cases where a death sentence was imposed, not those wherein a life sentence was imposed, are compared.

There is no federal constitutional right to a proportionality review. Pulley v. Harris (1984), 465 U.S. 37. More importantly, the Ohio Supreme Court has held that the proportionality review mandated 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. Appellant alleges the review is biased, but the same review is conducted for all defendants sentenced to death. Appellant's twenty-second assignment of error is found to be without merit.

Appellant's twenty-third assignment of error alleges: “The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio statutory provisions governing the imposition of the death penalty, contained in Revised Code 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, do not meet the prescribed requirements and thus are unconstitutional, both on their face and as applied.”

Appellant asserts that Ohio's death penalty statute is unconstitutional. Ohio's statutory framework for the imposition of capital punishment does not violate the United States Constitution. Jenkins, supra. Appellant's twenty-third assignment of error is found to be without merit.

Appellant's twenty-fourth assignment of error alleges: “Appellant was deprived his right to a fair trial by the cumulative affect of errors occurring at trial, in contravention of the Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution.” The errors, if any, for which appellant complains were harmless and did not have the cumulative affect of depriving him of a fair trial. Appellant's twenty-fourth assignment of error is found to be without merit.

INDEPENDENT REVIEW

As required by R.C. 2929.05(A), we now independently review the within death sentence to ascertain whether the imposition of same was appropriate. This constitutes a three-part test. First, we must determine whether the aggravating circumstances were supported by the evidence. We are then required to independently weigh all of the evidence to determine whether the aggravating circumstances outweighed the mitigating factors. Finally, we must decide whether the sentence imposed herein was proportionate to the penalty imposed in similar cases.

Specifically, this court finds that the following aggravating circumstances were established beyond a reasonable doubt by the evidence presented: (1) as to counts I and IV, aggravated murder was committed while appellant was involved in conduct causing the purposeful killing of two or more persons and was committed while appellant was committing, attempting to commit, fleeing immediately after committing or attempting to commit aggravated robbery while either the principal offender in the aggravated murder or having committed the aggravated murder with prior calculation and design; (2) as to counts III and VI, aggravated murder while committing a felony was committed by appellant while involved in conduct which caused the purposeful killing of two or more persons and was committed while appellant was committing, attempting to commit, fleeing immediately after committing or attempting to commit aggravated robbery while either the principal offender in the aggravated murder or having committed the aggravated murder with prior calculation and design; and (3) additionally, with regards to count VI, appellant committed the offense for the purpose of escaping detection, apprehension, trial and punishment for another offense committed by him.

There was never a denial in any respect that appellant was the principal perpetrator in the deaths of Charles Sponhaltz and Steven Vargo. The statements offered by appellant to various police officials, along with appellant's testimony and that of Fred Thompson, Sheriff Thomas McCort and additional deputy sheriffs assigned to watch appellant during his incarceration, clearly proved the foregoing aggravating circumstances.

We are now required to determine whether the aggravating circumstances outweigh the mitigating factors. R.C. 2929.04(B) provides that the aggravating circumstances in a particular case must be measured against the nature and circumstances of the offense; the history, character and background of the offender; and, any of the following mitigating factors: “(1) Whether the victim of the offense induced or facilitated it; “(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; “(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; “(4) The youth of the offender; “(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; “(6) 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; “(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”

Appellant requested that the trial court charge the jury on only three mitigating factors: his youth, his lack of a significant history of prior criminal convictions and/or delinquency adjudications and any other factors relevant to the issue of whether he should be sentenced to death. However, we will examine the evidence and testimony presented during the mitigation phase of appellant's trial in conjunction with all possible mitigating factors herein. R.C. 2929.04(B), R.C. 2929.05(A). We find no evidence to suggest that either of the within victims induced or facilitated the offenses committed by appellant in any respect. Accordingly, this mitigating factor shall be given no weight. Additionally, we find no evidence which would suggest that appellant was under duress, coercion or strong provocation at the time of the within offenses thereby, this mitigating factor shall likewise be given no weight.

There was no evidence presented to indicate that appellant suffered from a mental disease or defect or lacked a substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. In fact, defense witness, Dr. Newton L.P. Jackson, Jr., testified during mitigation to the contrary. However, Dr. Jackson did state that appellant suffered from a borderline personality disorder which caused him to be subject to intense emotional feelings, including sudden bursts of anger. (Mitigation Tr. 85). Although appellant did not suffer from a mental disease or defect which would impede his ability to understand the nature of his wrongdoing or prevent him from conforming his actions within the bounds of the law, the fact that he was diagnosed as suffering from the foregoing personality disorder is entitled to some weight in mitigation of the within aggravating circumstances.

We further find that at the time of the within homicides, appellant was 24 years of age. There was no evidence presented to indicate that he was a youthful offender or that his age was a factor which should have been taken into consideration in this matter. Additionally, although appellant did not have a prior criminal record and/or delinquency adjudications, there was testimony offered during mitigation to the effect that he was a cocaine dealer. Therefore, these mitigating factors shall be given little, if any, weight.

As previously stated, appellant was the principal perpetrator in the deaths of the victims herein since he alone fired the gunshots which killed them. He is therefore not entitled to any mitigating weight concerning his participation in the within homicides. With regards to appellant's history, character and background, the testimony offered during mitigation established that appellant's childhood was less then desirable. He lacked the love and support of a stable father figure, his mother suffered three unsuccessful marriages and an addiction to prescription drugs and appellant himself used drugs at an early age and had an unsuccessful marriage.

While appellant's childhood and family background are perhaps entitled to some mitigating weight, they do not outweigh the aggravating circumstances herein. Dr. Jackson testified that appellant was of average intelligence and was thereby able to understand and appreciate the criminality of his conduct. Upon a thorough review of all evidence and testimony presented in this matter, along with a careful and complete consideration of all possible mitigating factors, we find that the aggravating circumstances for which appellant was found guilty outweigh all mitigating factors beyond a reasonable doubt.

Finally, we are required to determine whether the sentence of death was appropriate in the case at bar. As part of the determination, this court is required to “consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.” R.C. 2929.05(A). As we previously stated under appellant's twenty-second assignment of error, the Ohio Supreme Court has held that the review mandated 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 was imposed. Steffen, supra.

This court has rendered decisions in four capital cases. Most recently, in State v. John Jeffrey Eley (Dec. 20, 1995), Mahoning App. No. 87 C.A. 122, unreported, this court affirmed the conviction and death sentence of a man convicted of the aggravated murder of a store owner during the course of committing an aggravated robbery.

In State v. Rosalie Grant (Nov. 9, 1990), Mahoning App. No. 83 C.A. 144, unreported, this court affirmed the conviction and death sentence of a woman convicted of the purposeful killing of her two children during an aggravated arson. In State v. Hudson (May 28, 1993), Jefferson App. No. 88-J-40, unreported, Hudson had been convicted of the kidnapping and the purposeful killing of another man, along with specifications. The facts indicated that Hudson and three other men lured the victim from his home by telling him that a friend needed his help, then drove the victim to a remote area where he was beaten, stabbed and shot. On appeal, this court reversed Hudson's death sentence on the basis that the State had failed to present evidence to prove that Hudson had committed the crime of aggravated robbery.

In State v. Raymond A. Twyford, III (Oct. 6, 1995), Jefferson App. No. 93-J-13, unreported, Twyford and another man were convicted of the kidnapping, robbery and murder of another man whom they had deceived into believing that he was going hunting. The defendants mutilated the body of the victim before disposing of it. This court affirmed Twyford's death sentence.

We find that the case at bar is most similar, as that term is used in R.C. 2929.05, to Eley, supra and therefore, further look to similar cases decided by the Ohio Supreme Court. In State v. Jamison (1990), 49 Ohio St.3d 182, U.S. certiorari denied (1990), 498 U.S. 881-882; State v. Esparza (1988), 39 Ohio St.3d 8, U.S. certiorari denied (1989), 490 U.S. 1012; and, State v. Martin (1985), 19 Ohio St.3d 122, U.S. certiorari denied (1986), 474 U.S. 1073, the defendants were convicted of aggravated murder committed during the course of an aggravated robbery and were sentenced to death. While all three defendants submitted mitigating evidence similar to that submitted by appellant herein, i.e., troubled or abusive childhoods, problems with drugs and/or alcohol, etc., the death sentences were upheld by the Ohio Supreme Court.

Based upon the foregoing, we find that pursuant to R.C. 2929.05, the death sentence imposed upon appellant in the case at bar is not disproportionate to the penalty imposed in similar cases. Accordingly, the judgment of the trial court is hereby affirmed. O'NEILL, P.J., concurs. DONOFRIO, J., concurs.


Palmer v. Bagley, 330 Fed.Appx. 92 (6th Cir. 2009). (Habeas)

Background: After conviction and death sentence for capital murder were affirmed on direct appeal, 80 Ohio St.3d 543, 687 N.E.2d 685, and denial of postconviction motions were affirmed, 1999 WL 979228 and 92 Ohio St.3d 241, 749 N.E.2d 749, petitioner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Ohio denied petition, 2006 WL 1027733, and granted certificate of appealability (COA). Petitioner appealed.

Holdings: The Court of Appeals, Griffin, Circuit Judge, held that: (1) Court of Appeals would not consider any issue raised by petitioner arising from denial of writ of habeas corpus for which COA was not granted; (2) state trial court's refusal to instruct jury on involuntary manslaughter as lesser included offense of capital murder did not violate due process; (3) any such error in jury instruction that allowed it to convict without finding he had specific intent to kill was harmless; (4) district court did not abuse its discretion in raising issue of whether state death-sentenced petitioner's challenge to prosecutor's comment during closing argument was procedurally defaulted; (5) petitioner's challenge to prosecutor's comment during closing argument was procedurally defaulted; (6) prosecutor's comments during closing argument regarding period of time in which petitioner could have calculated and designed plan to kill was correct statement of Ohio law; and (7) State was permitted to admit evidence regarding petitioner's failure to pay child support and sexual abuse of his children in sentencing phase of capital murder trial. Affirmed.

GRIFFIN, Circuit Judge.

Donald L. Palmer, an Ohio death-row prisoner, appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted a certificate of appealability (“COA”) on two claims alleging erroneous jury instructions and three claims alleging prosecutorial misconduct. After careful consideration of the issues raised and for the reasons that follow, we affirm the district court's denial of relief. I. In October 1989, an Ohio jury convicted Palmer of the May 1989 aggravated murders of Charles Sponhaltz and Steven Vargo, and he was thereafter sentenced to death. State v. Palmer, 80 Ohio St.3d 543, 687 N.E.2d 685, 694-95 (1997).FN1

On direct appeal, the Ohio Court of Appeals and the Supreme Court of Ohio unanimously affirmed, and the United States Supreme Court denied certiorari. State v. Palmer, No. 89-B-28, 1996 WL 495576, at *22 (Ohio Ct.App. Aug. 29, 1996) (unpublished), aff'd, 687 N.E.2d at 695, 713, cert. denied, 525 U.S. 837, 119 S.Ct. 96, 142 L.Ed.2d 76 (1998). Ohio's courts subsequently denied Palmer's requests for post-conviction relief. State v. Palmer, No. 96 BA 70, 1999 WL 979228 (Ohio Ct.App. Oct. 20, 1999) (unpublished), appeal not allowed, 88 Ohio St.3d 1424, 723 N.E.2d 1113 (2000); State v. Palmer, No. 89-B-28 (Ohio Ct.App. Oct. 25, 2000) (unpublished), aff'd, 92 Ohio St.3d 241, 749 N.E.2d 749 (2001) (per curiam).

FN1. A detailed recitation of the evidence was articulated by the Supreme Court of Ohio in Palmer, 687 N.E.2d at 685-95.

Palmer then filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, asserting eighteen errors. The district court denied the petition, adopting the chief magistrate judge's report and recommendation (“R & R”) in its entirety. Palmer v. Bagley, No. 1:00-CV-882, 2005 WL 3965400 (S.D.Ohio Dec. 16, 2005) (unpublished), adopted by, 2006 WL 1027733 (S.D.Ohio Apr. 17, 2006) (unpublished). Thereafter, the district court granted a certificate of appealability (“COA”) on the following claims alleging erroneous jury instructions and prosecutorial misconduct: (1) whether the trial court erred by refusing to instruct the jury on involuntary manslaughter, a lesser included offense of aggravated murder; (2) whether the trial court erroneously instructed the jury that it could convict Palmer of aggravated murder without specifically finding that he intended to kill; and (3) whether Palmer was denied a fair trial because of alleged prosecutorial misconduct arising from the prosecutor's (a) misleading argument to the jury that the “prior calculation and design” necessary to convict him of aggravated murder could occur in ten to fifteen seconds and (b) introduction of evidence in the penalty phase that Palmer (i) failed to pay child support and (ii) sexually abused his children. Palmer v. Bagley, No. 1:00-CV-882, 2006 WL 3591963 (S.D.Ohio Dec. 11, 2006) (unpublished). We denied Palmer's motions to expand the COA and to reconsider that determination.

II.

Because Palmer filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), AEDPA governs our review. Cornwell v. Bradshaw, 559 F.3d 398, 404 (6th Cir.2009). Under AEDPA, we are statutorily prohibited from granting Palmer habeas relief on any claim adjudicated on the merits by Ohio's courts unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1) & (2). See Cornwell, 559 F.3d at 404.

In assessing whether a state court decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, a federal court may look only to the holdings, not the dicta, of the Supreme Court's decisions. Cornwell, 559 F.3d at 404-05 (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Only if the state court's reasoning or ruling contradicts those holdings is the decision “contrary to” clearly established Supreme Court precedent. Cornwell, 559 F.3d at 405 (citing Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002)).

A state court decision “involves an unreasonable application of” Supreme Court precedent if it is “objectively unreasonable,” not simply erroneous or incorrect. Williams, 529 U.S. at 409-11, 120 S.Ct. 1495. Indeed, “[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A federal court may grant relief under the “unreasonable application” clause of § 2254(d)(1) “if the state court decision (a) identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies it to the facts, or (b) either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context.” Cornwell, 559 F.3d at 405 (citing Williams, 529 U.S. at 407-08, 120 S.Ct. 1495). A state court's incorrect application of clearly established law will be held to be reasonable and not warrant the writ unless “thorough analysis by a federal court produces a firm conviction that that judgment is infected by constitutional error.” Williams, 529 U.S. at 389, 120 S.Ct. 1495.

In deciding whether a state court decision involved “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” under § 2254(d)(2), determinations of fact are “presumed to be correct” unless rebutted “by clear and convincing evidence.” § 2254(e)(1). When the petitioner properly raised a habeas claim in state court but the state court did not adjudicate the claim on its merits, the deference owed to the state courts under AEDPA does not apply, and we review questions of law and mixed questions of law and fact de novo. See Cornwell, 559 F.3d at 405; Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). Harmless errors are disregarded. Calderon v. Coleman, 525 U.S. 141, 145-47, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998).

A.

Palmer devotes almost half of his appellate brief to advancing his argument that we should expand the COA to consider other alleged errors in the proceedings below. However, we have twice carefully considered and denied Palmer's request to expand the COA, first when we denied his motion to expand the COA, and second when we denied his subsequent petition to reconsider that determination. Accordingly, we do not now consider any issue for which a COA was not granted. See Cooey v. Coyle, 289 F.3d 882, 887 (6th Cir.2002).

B.

Palmer contends that he was denied due process when, during the guilt phase of his trial, the state trial court refused to provide the jury with an instruction on involuntary manslaughter, a lesser included offense of aggravated murder. See State v. Lynch, 98 Ohio St.3d 514, 787 N.E.2d 1185, 1202 ¶ 79 (2003) (citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, 290 (1988)). He argues that because there was “some evidence” that he lacked specific intent to kill the victims, the trial court should have provided the jury with the option of finding him guilty of involuntary manslaughter in lieu of aggravated murder. The Supreme Court of Ohio denied this claim on its merits, ruling that under any reasonable view of the evidence, Palmer intended to kill his victims. Palmer, 687 N.E.2d at 702-03. The district court held that the Supreme Court of Ohio's decision was not an objectively unreasonable application of clearly established Supreme Court precedent.FN2 Palmer, 2005 WL 3965400, at *34.

FN2. The district court erroneously based its ruling on the “unreasonable application” clause of § 2254(d)(1). That clause applies to unreasonable applications of clearly established federal law, as determined by the Supreme Court of the United States. § 2254(d)(1). The Supreme Court of Ohio's analysis relied upon Thomas, a state court decision. Hence, it is the “contrary to” clause in § 2254(d)(1) that controls. See Early, 537 U.S. at 8, 123 S.Ct. 362 (holding that the state court need not cite or even be aware of the relevant United States Supreme Court cases, “so long as neither the reasoning nor the result ... contradicts them”).

In urging reversal, Palmer relies upon the Supreme Court's decisions in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Beck held that “the jury must be permitted to consider a verdict of guilt of a noncapital offense ‘in every case’ in which ‘the evidence would have supported such a verdict.’ ” Hopper, 456 U.S. at 610, 102 S.Ct. 2049 (articulating Beck 's holding). The Hopper Court explained the rationale underlying Beck 's holding as follows:

The Beck opinion considered the alternatives open to a jury which is [precluded by state law from convicting] a defendant of a lesser included offense when there was evidence which, if believed, could reasonably have led to a verdict of guilt of a lesser offense. In such a situation, we concluded, a jury might convict a defendant of a capital offense because it found that the defendant was guilty of a serious crime. Or a jury might acquit because it does not think the crime warrants death, even if it concludes that the defendant is guilty of a lesser offense. While in some cases a defendant might profit from the preclusion clause, we concluded that “in every case [it] [introduces] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.” Id. at 610, 102 S.Ct. 2049 (internal citations omitted). Placing Beck within the context of its prior decisions, the Court explained that “[o]ur holding in Beck, like our other Eighth Amendment decisions in the past decade, was concerned with insuring that sentencing discretion in capital cases is channelled so that arbitrary and capricious results are avoided.” Id. at 611, 102 S.Ct. 2049.

Hopper clarified that “due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.” Id. In other words, “[t]he federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’ ” Id. at 612, 102 S.Ct. 2049 (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). In Hopper, the Court determined that no lesser included offense instruction was required where the evidence not only supported the claim that the defendant intended to kill the victim, but affirmatively negated any claim that he did not intend to do so. Hopper, 456 U.S. at 613, 102 S.Ct. 2049.

Palmer asserts that a jury could rationally have found that he did not intend to kill the victims, thereby entitling him to an involuntary manslaughter instruction, because at the time of the shootings, or immediately prior, he was under the influence of alcohol or LSD; the victims were strangers; Sponhaltz and Hill (Palmer's companion) were involved in an altercation over which he had no control; he thought he shot Hill rather than Sponhaltz; he did not remember pulling the trigger; he was in a state of “mass confusion”; Vargo, the second victim, “threw his arms up either to keep [Palmer] from running into [Vargo] or to grab Palmer” and “[i]n his state of confusion and with no time to think, his gun fired again”; he denied any intent to kill or rob the victims; there were no other witnesses with personal knowledge who testified about the shootings; and the evidence regarding his intent was circumstantial. Palmer's reliance on Hopper and Beck is misplaced.

Palmer fails to acknowledge the Supreme Court's later decision in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). Schad clarified that the central concern remedied by the holding in Beck was forcing the jury into the conundrum of an “all-or-nothing choice between the offense of conviction (capital murder) and innocence.” Id. at 646-47, 111 S.Ct. 2491. See also Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (“[T]he absence of a lesser included offense instruction [in a capital case] increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free.”). In Schad, the Court determined that this concern was not present because the jury was given a “third option”-second-degree murder. Id. at 647-48, 111 S.Ct. 2491. The Schad Court also held that the trial court's second-degree murder instruction, in lieu of the defendant's requested robbery instruction, did not “diminish the reliability of the jury's capital murder verdict.” Id. at 647, 111 S.Ct. 2491. The Court explained that to accept the defendant's argument, it “would have to assume that a jury unconvinced that petitioner was guilty of either capital or second-degree murder, but loath to acquit him completely (because it was convinced he was guilty of robbery), might choose capital murder rather than second-degree murder as its means of keeping him off the streets.” Id. at 647, 111 S.Ct. 2491. The Court refused to “assume such irrationality.” Id. Finally, although the Schad Court clarified that Beck would not “be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence,” it determined that the second-degree murder instruction was “adequate to indicate that the verdict of capital murder represented no impermissible choice” because “petitioner concede[d] that the evidence would have supported a second-degree murder conviction.” Id. at 648, 111 S.Ct. 2491.

Here, as in Schad, petitioner's due process rights were not violated because the trial court did not confine the jury to an all-or-nothing choice between capital murder and acquittal. Regarding each victim, the court gave the jury the additional options of convicting Palmer of murder, a lesser included offense of aggravated murder distinguishable by the absence of “prior calculation and design,” see Ohio Rev.Code Ann. §§ 2903.02(A) (murder) & 2929.02(A)(B)(1) (penalties for aggravated murder and murder); State v. Monroe, 105 Ohio St.3d 384, 827 N.E.2d 285, 294-95 ¶ 36 (2005); State v. Tyler, 50 Ohio St.3d 24, 553 N.E.2d 576, 591 (1990) (per curiam), and aggravated robbery. Had the jury simply wanted to “keep Palmer off the streets,” it could have accomplished that goal by convicting him of these other serious, but non-capital, crimes. That the jury convicted him of both aggravated murder (rather than murder) and aggravated robbery rendered its verdicts reliable and avoided the “arbitrary and capricious” results in capital cases against which the Supreme Court has cautioned.

Moreover, the Supreme Court of Ohio's reliance upon its decision in Thomas to support its ruling that Palmer was not entitled to an involuntary manslaughter instruction was not contrary to Beck, Hopper, or any other clearly established Supreme Court precedent. Beck and Hopper, like Thomas, would only require such an instruction if the evidence permitted the jury rationally to find Palmer guilty of involuntary manslaughter and acquit him of aggravated murder. Rejecting that possibility, the Supreme Court of Ohio explained:

Here, under any reasonable view of the evidence, the killing of both Sponhaltz and Vargo was purposeful. Appellant fired two shots into the left side of Sponhaltz's head. He shot Vargo in the right side and in the left side of the head, with one of the shots having been fired from point-blank range.

At trial, appellant claimed that he did not know he was carrying the pistol until it accidentally discharged when appellant attempted to strike Sponhaltz with a hand or fist. Appellant also claimed that he killed Sponhaltz and Vargo in the “panic” and “mass confusion” that followed the first “accidental” shot. However, the placement of the shots fired into Sponhaltz's head, and the paths of the projectiles through Sponhaltz's brain, clearly show the absence of any accident or mistake. Moreover, the alleged accidental shot and appellant's alleged intoxication do not even begin to explain the second shot fired into Sponhaltz's head, which was fired with unmitigated accuracy. Appellant's claims of panic and confusion are thoroughly refuted by the location and placement of the shots fired into Sponhaltz's head, and the location and placement of the shots fired into the left and into the right side of Vargo's head. Both victims were killed execution-style with a single-action revolver. The evidence concerning the type of weapon used by appellant demonstrated that the hammer mechanism had to be pulled back and cocked, and the trigger then pulled, for each round fired. Appellant's claims of accident, panic, and confusion are wholly inconsistent with the evidence. Additionally, contrary to appellant's assertions, no reasonable juror could have believed that these killings were the accidental byproduct of an aggravated robbery gone wrong. The number and location of the victims' wounds would lead any reasonable trier of fact to conclude that appellant acted purposefully in causing the death of each victim.

We find that the evidence adduced at trial could not have reasonably supported both an acquittal on aggravated murder and a conviction on the charge of involuntary manslaughter. Therefore, the trial court correctly rejected appellant's request for an involuntary manslaughter instruction. Palmer, 687 N.E.2d at 702-03. The district court characterized the evidence in similar fashion: Palmer testified that he exited Hill's automobile with a loaded and cocked firearm in his hand. Each of Palmer's victims were shot twice in the head, arguably the most lethal location on the body in which to shoot a person. By his own testimony, Palmer admits that he shot Sponhaltz the second time after Hill shouted “kill him, kill him!” Vargo's body was found approximately fifty feet from where Sponhaltz was murdered, which contradicts Palmer's testimony that he came face-to-face with Vargo as soon as he turned away from Sponhaltz after shooting him. Palmer cocked and pulled back the hammer of the weapon between each of the four shots he fired. Such evidence, especially coming from Palmer's own mouth, negates his claim that he did not intend to kill Sponhaltz and Vargo. As such, the Ohio Supreme Court's conclusion that the trial court did not err in denying Palmer's request for an instruction on the lesser included offense of involuntary manslaughter was not objectively unreasonable. Palmer, 2005 WL 3965400, at *35 (internal citations omitted).

For the same reasons articulated by the Supreme Court of Ohio and the district court, we agree that a jury could not rationally have found that Palmer lacked the specific intent to kill each victim. We add that several law enforcement officers testified at trial that Palmer confessed to them that “he shot the man again to make sure he was dead” and shot “the second guy” because he believed he had witnessed the first killing. In addition, one officer testified that Palmer showed no remorse when describing how he “popped” the victims.

For these reasons, the state trial court's refusal to give an involuntary manslaughter instruction was not contrary to clearly established Supreme Court precedent, and petitioner is not entitled to relief.FN3

FN3. We also note that in his concurrence, Justice Pfeifer voted to affirm the convictions and death sentence, despite his belief that the prosecution failed to prove that the killings of Sponhaltz and Vargo, whom he characterized as “total strangers” shot in the “spur of the moment,” were “the product of prior calculation and design.” Palmer, 687 N.E.2d at 715 (Pfeifer, J., concurring). Justice Pfeifer concluded that dismissal of those counts would not affect the felony-murder convictions which he alternatively concluded justified the death penalty. Id.

C.

Palmer contends that the trial court erroneously instructed the jury that it could convict him of aggravated murder without finding that he intended to kill. On direct appeal, the state court of appeals held that Palmer forfeited the issue by not raising an objection during trial and, finding no plain error, rejected the claim. Palmer, 1996 WL 495576, at *9. The Supreme Court of Ohio affirmed without discussion. Palmer, 687 N.E.2d at 695-96. The district court noted that the Warden failed to argue that the issue was procedurally defaulted and thus denied the claim on its merits. Palmer, 2005 WL 3965400, at *36.

In this appeal, the Warden concedes that she failed to raise procedural default in the district court but argues that we should, in our discretion, hold the claim procedurally defaulted. Palmer counters that the Warden's procedural default argument is untimely and that we should deny the Warden's invitation to consider it because of the “serious consequences facing” him.

We hold that the claim is procedurally defaulted. The procedural default bar, as applied in the habeas context, “precludes federal courts from reviewing claims that a state court has declined to address, because of a petitioner's noncompliance with a state procedural requirement.” Howard v. Bouchard, 405 F.3d 459, 475 (6th Cir.2005). See also Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We have held that “Ohio's contemporaneous objection rule constitutes an adequate and independent state ground that bars federal habeas review absent a showing of cause and prejudice.” Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.2001). When a state appellate court reviews an issue for plain error, we view it as the state's enforcement of a procedural default. Id. “In determining whether state courts have relied on a procedural rule to bar review of a claim, we look to the last reasoned opinion of the state courts and presume that later courts enforced the bar instead of rejecting the defaulted claim on its merits.” Id.

In this case, the Ohio Court of Appeals, which issued the last comprehensive opinion reviewing the instant claim, unambiguously enforced Ohio's contemporaneous objection rule. The court stated: As was the case under appellant's second assignment of error, his claim of an erroneous and misleading jury instruction must fail since he failed to raise an objection during trial pursuant to [Ohio] Crim. R. 30(A).[[FN4] Absent plain error, the failure to object to alleged improprieties in jury instructions constitutes a waiver of such issue on appeal.

FN4. Rule 30(A) provides, in pertinent part: “On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.” Palmer, 1996 WL 495576, at *9 (internal citations omitted). The court then rejected Palmer's contention that the trial court plainly erred, ruling instead that any error was harmless. Id.

That the Warden failed to argue procedural default in the district court does not entitle a habeas petitioner to a merits-based review of his claim. In Elzy v. United States, 205 F.3d 882 (6th Cir.2000), we explained that we are not required to review the merits of defaulted claims simply because the Government has failed to raise the issue. While procedural default is not a jurisdictional bar to review of such a claim, and the Government's failure to raise the default may operate as a forfeiture of its right to defend on that ground, we nonetheless may raise these issues sua sponte. Id. at 886. We make no exception for capital cases. See White v. Mitchell, 431 F.3d 517, 524 (6th Cir.2005) (holding a claim procedurally defaulted in a capital case because “[w]e are ... permitted to consider the procedural default issue even when raised for the first time on appeal if we so choose”).

Because we hold that this claim is procedurally defaulted, Palmer “waived the right to federal habeas review unless [he] can demonstrate cause for noncompliance and actual prejudice arising from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice.” Hinkle, 271 F.3d at 244-45 (quoting Simpson v. Jones, 238 F.3d 399, 406 (6th Cir.2000) (internal quotation marks omitted)). Because Palmer makes no attempt to show cause, prejudice, or a miscarriage of justice that would excuse the procedural default, we deny relief on this claim. See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (“It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.”).

Assuming arguendo that Palmer did not forfeit the claim, we alternatively deny it on its merits. The trial court instructed the jury as follows (the allegedly erroneous instruction is in italics): [1] Purpose to cause the death of another is an essential element of the crime of aggravated murder. [2] A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the defendant a specific intention to cause the death of [the victims]. [3] A person acts purposely when the gist of the offense is a prohibition against conduct of a certain nature regardless of what the offender intends to accomplish thereby, if it is his specific intention to engage in conduct of that nature. [4] Purpose is a decision of the mind to do an act with a conscious objective of producing a specific result. To do an act purposely is to do it intentionally and not accidentally. Purpose and intent mean the same thing. The purpose with which a person does an act is known only to himself unless he expresses it to others or indicates it by his conduct. [5] The purpose with which a person brings about a result is determined from the manner in which it is done, the weapon used, and all other facts and circumstances in evidence. [6] No person shall be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another. Palmer, 2005 WL 3965400, at *36 (emphasis added).

Palmer argues that the third paragraph “allowed the jury to convict [him] of aggravated murder if it believed that he specifically intended to engage in certain conduct other than purposely killing the victims,” such as waving his gun at Sponhaltz, cocking the pistol and firing it in the direction of the victims, or becoming intoxicated, and that the trial court “exacerbated the problem ... by repeating [the erroneous instruction] with respect to each of the aggravated murder charges.” The district court ruled that the offensive paragraph, when considered with the trial court's remaining instructions, adequately conveyed to the jury that it had to find that Palmer specifically intended to kill before it could convict him of aggravated murder. Palmer, 2005 WL 3965400, at *37. It also ruled that the error was harmless in light of the strong evidence that Palmer intended to kill. Id.

“To warrant habeas relief, jury instructions must not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair.” Doan v. Carter, 548 F.3d 449, 455 (6th Cir.2008) (quoting Austin v. Bell, 126 F.3d 843, 846-47 (6th Cir.1997) (internal quotation marks omitted)) (emphasis added); Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). “When a court makes an error in instructing the jury, the proper inquiry is ‘whether there is a reasonable likelihood that the jury’ applied the instruction ‘in an unconstitutional manner.’ ” Doan, 548 F.3d at 455 (quoting Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)).

The trial court erred in giving the “gist of the offense” paragraph. The Supreme Court of Ohio has stated that such language “is confusing in a murder prosecution which requires ‘purpose.’ ” State v. Wilson, 74 Ohio St.3d 381, 659 N.E.2d 292, 305 (1996) (citing 4 OHIO JURY INSTRS. § 409.01(3) cmt. (1995)) (“The trial bench has been giving both § 2 [purpose and specific intent] and § 3 [gist of the offense] in ‘result’ situations (aggravated murder) and it is both incorrect and confusing”). The comments state that “gist of the offense” is intended to be given “in rare cases where conduct is prohibited, e.g., Corruption of a minor.” 4 Ohio Jury Instrs. § 409.01(3) cmt. (1995). In granting the COA on this issue, the district court acknowledged that the “gist of the offense” instruction was “not relevant to the charges made in this case.”

Nevertheless, we conclude that there was no reasonable likelihood that the jury interpreted the “gist of the offense” paragraph as authorizing it to convict Palmer of aggravated murder without finding that he intended to kill. Particularly on the facts in this case, the meaning of the “gist of the offense” paragraph would have been unclear to the jury. Because the paragraph was so vaguely worded, it is likely that the jury simply gave that portion of the aggravated murder instruction little attention. Even if the jury dwelled upon it, nowhere did the paragraph authorize the jury to presume specific intent or convict Palmer of aggravated murder if it found that he did not intend to kill the victims.FN5

FN5. Because the aggravated murder instruction neither created a presumption that Palmer intended to kill nor withheld from the jury's consideration the question of his intent, Palmer erroneously relies upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (respectively holding that a jury instruction authorizing the jury to “presume” the defendant's intent in an intentional homicide case and the trial court's refusal to allow the jury to decide whether the defendant's statements were “material” in a prosecution for making false statements under 18 U.S.C. § 1001 deprived both defendants of their due process rights by relieving the state of its burden of proving every element of the charged offenses).

Significantly, the remaining five paragraphs in which the objectionable language was nested repeatedly, unambiguously, and correctly instructed the jury that it had to find that Palmer acted with “purpose” and “intent” to kill in order to convict him of aggravated murder. The first paragraph instructed that “[p]urpose to cause the death of another is an essential element of the crime of aggravated murder.” The second paragraph then defined “purpose” as having specific intent to kill: “It must be established in this case that at the time in question there was present in the mind of the defendant a specific intention to cause the death of [the victims].” After paragraphs four and five further defined “purpose,” the sixth paragraph left no doubt in jurors' minds that they had to find that Palmer specifically intended to kill: “No person shall be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another.” Our law presumes that the jury followed these clear instructions. United States v. Tines, 70 F.3d 891, 898 (6th Cir.1995) (citing Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)).

Assuming arguendo that the “gist of the offense” paragraph created a reasonable likelihood that the jury applied the aggravated murder instruction in an unconstitutional manner, for the same reasons articulated in subsection B of this opinion about why an involuntary manslaughter instruction was inappropriate, we alternatively hold that the error was harmless. See Neder v. United States, 527 U.S. 1, 9-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (surveying cases holding that an improper jury instruction on a single element of an offense-whether the erroneous instruction is an omission or a “misdescription” of the element-is not a structural error defying harmless-error review).FN6 Even if the offending instruction were excised, see Kibbe, 431 U.S. at 154, 97 S.Ct. 1730 (“An appraisal of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given.”), no jury could rationally have found that Palmer lacked the specific intent to kill each victim in light of the overwhelming evidence.

FN6. Palmer's reliance upon Neder is puzzling because it authorized harmless-error review of erroneous jury instructions. Accordingly, we alternatively hold this claim forfeited and meritless under our de novo review.

D.

Palmer contends that he was denied a fair trial because of alleged prosecutorial misconduct arising from the prosecutor's (1) allegedly misleading closing argument to the jury that the “prior calculation and design” necessary to convict him of aggravated murder could occur in ten to fifteen seconds and (2) introduction of evidence in the penalty phase that Palmer (a) failed to pay child support and (b) sexually abused his children.

1.

Regarding the first alleged instance of misconduct, the prosecutor remarked in his closing argument during the guilt phase: Although it's true that we have to show the defendant had a specific intent to kill this man, and it's true we have to show that he had some degree of forethought that he thought about it for some period of time, there is no legally required period of time. The defendant testified the whole thing happened in 10 to 15 seconds. If in those 10 to 15 seconds, if that's true-and we submit the evidence will show that that length of time is virtually impossible-but even if that were true, it is legally possible for the defendant to have in his mind sufficient prior calculation and design in that period of time.

Although the Ohio Court of Appeals characterized the prosecutor's argument as a misstatement of the law, it held that Palmer forfeited the issue by not objecting and reviewed for plain error but found none. Palmer, 1996 WL 495576, at *12. The Supreme Court of Ohio affirmed without discussion. Palmer, 687 N.E.2d at 695-96. The district court ruled that the claim was forfeited and alternatively meritless, holding that the prosecutor accurately stated the law and suggesting that the state appellate court erred in concluding that he did not. Palmer, 2005 WL 3965400, at *20-*21.

Acknowledging his possible procedural default of this claim, Palmer attempts to circumvent that result by arguing that procedural irregularities occurred in the district court that justify review of his claim and, alternatively, that he is actually innocent of the specific intent to kill. However, for the reasons stated below, none of these contentions entitles Palmer to a merits-based review.

a.

Palmer explains that he filed a motion for summary judgment in the district court on all procedural-default defenses asserted by the Warden. He contends that he argued in his motion the Warden's failure to raise procedural default regarding this claim. Thereafter, the chief magistrate judge entered an R & R identifying those claims for which the Warden raised procedural default. The instant claim was not one of them.FN7 The Warden failed to object to the R & R's exclusion of the claim as one that was subject to procedural default, and the chief magistrate judge then issued a supplemental R & R reaffirming his findings. Thereafter, the district court adopted both the initial and supplemental R & Rs.

FN7. In his reply brief, Palmer acknowledges that he mistakenly represented in his initial brief that the magistrate judge found that no procedural default defense had been raised with respect to the child support and sexual abuse claims.

Palmer complains that in his subsequent R & R on the merits, adopted by the district court, the chief magistrate judge improperly reversed his prior determinations that the procedural default defense was inapplicable by holding that it was indeed procedurally defaulted. According to Palmer, this was error because the defense was waived and the chief magistrate and district judges exceeded their authority by raising the defense sua sponte without a showing of newly discovered facts a or change in the law and without giving him the opportunity to brief it, ignored Rules 56 and 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636, and misapplied our decisions in Lorraine v. Coyle, 291 F.3d 416 (6th Cir.2002) and Sowell v. Bradshaw, 372 F.3d 821 (6th Cir.2004), where we explained that a court could raise procedural default sua sponte but declined to do so.

Palmer's contentions are unavailing for several reasons. First, the district court's summary judgment order was only a partial grant of summary judgment regarding the applicability of the procedural default defense on the various claims. As such, the order was a non-final order entered prior to the court's entry of final judgment denying the habeas petition and terminating the case. Therefore, the district court could revise the order at any time prior to final judgment. See Fed.R.Civ.P. 54(b) (providing that the district court may direct entry of a final judgment as to one or more, but fewer than all, claims “only if the court expressly determines that there is no just reason for delay” but that “[o]therwise, any order or other decision, however designated, that adjudicates fewer than all the claims ... does not end the action as to any of the claims ... and may be revised at any time before the entry of a judgment adjudicating all the claims .... ”) (emphasis added).

Second, contrary to Palmer's argument, he was afforded the opportunity to object to the chief magistrate judge's later recommendation that the claim be deemed procedurally defaulted, and he did, in fact, object; the district judge simply overruled the objection and adopted the chief magistrate judge's recommendation. Because Palmer was given a fair opportunity to advance his argument before the district court entered its ruling, the court did not abuse its discretion in sua sponte raising procedural default. See Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir.1998) (holding that district court did not abuse its discretion in raising procedural default problem sua sponte because the petitioner had an opportunity to respond).

Third, Palmer mis-characterizes the chief magistrate judge's recommendation that the claim be deemed procedurally defaulted as an impermissible reversal of the district judge's prior orders. Contrary to the interpretation Palmer urges us to adopt, the chief magistrate judge's recommendation was just that-a recommendation. It is the district judge who determines whether to reject or adopt a magistrate judge's recommendation and who is authorized to make a fresh determination even when no objection was made. See Delgado v. Bowen, 782 F.2d 79, 81-82 (7th Cir.1986) (holding that the district judge may, under 28 U.S.C. § 636(b)(1)(C), reject or modify the magistrate judge's recommendations even when no objection was made because “[t]he order of the [district] judge is the final and authoritative word in the district court”). Neither Rule 56 nor Rule 72 of the Federal Rules of Civil Procedure, which Palmer cites, provides to the contrary. FN8. Rule 56 is the summary judgment rule, and Rule 72(a) prohibits a party, not the court, from “assign[ing] as error a defect in the [R & R] not timely objected to.”

Finally, Palmer's attempt to distinguish Coyle and Bradshaw is misplaced. In both of those cases, we acknowledged that a court may, in its discretion, raise procedural default sua sponte despite the government's failure to defend on that ground. See Coyle, 291 F.3d at 427 (stating that “[i]t would ... not be improper for us to decline review of these claims, since the state courts did not have the opportunity to address them”); Bradshaw, 372 F.3d at 830 (acknowledging that “this court may consider a newly-raised default argument, if it so wishes”). However, we declined to consider procedural default in both of those cases because of “the somewhat oblique manner in which Respondent raised the defense,” see Coyle, 291 F.3d at 427, and “[i]n light of the resources that have been expended by the district court and the serious consequences ..., and because the Warden did not make this argument to the district court.” Bradshaw, 372 F.3d at 830. Here, unlike Coyle and Bradshaw, the defense was not raised in an “oblique” manner, and the district court ruled on the defense after Palmer responded. Accordingly, we hold that the district court did not abuse its discretion in sua sponte raising procedural default and affirm its ruling on that issue.

b.

Palmer alternatively contends that his procedural default is excused because he is actually innocent of the prior calculation and design and purposeful killing death specifications. However, that argument fails for two reasons. First, Palmer forfeited the issue by not raising it in his objections to the chief magistrate judge's recommendation that the claim be deemed procedurally defaulted. See United States v. Campbell, 261 F.3d 628, 632 (6th Cir.2001) (holding that a party waives on appeal any issue in the R & R to which it has failed to object). Second, the argument is meritless. The United States Supreme Court has stated that [t]he miscarriage of justice exception is concerned with actual as compared to legal innocence. We have often emphasized the narrow scope of the exception. To be credible, a claim of actual innocence must be based on reliable evidence not presented at trial. Given the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected. Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (internal citations and quotation marks omitted). Palmer does not contend that there is “reliable evidence not presented at trial” establishing his actual innocence. Because Palmer's claim of actual innocence is both forfeited and meritless, it does not excuse his procedural default on his prosecutorial misconduct claim of improper argument.

c.

Even if the claim were not procedurally defaulted, we agree with the district court that Palmer would not be entitled to relief on the merits. To warrant a writ on grounds of prosecutorial misconduct, the habeas petitioner bears a heavy burden. He must show that the prosecutor's statements “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The focus is on “the fairness of the trial, not the culpability of the prosecutor,” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and “[r]eversal is required only if the prosecutor's misconduct is ‘so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant.’ ” Lundgren v. Mitchell, 440 F.3d 754, 778 (6th Cir.2006) (quoting Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997)).

Our two-part test for assessing whether the alleged misconduct satisfies this standard requires that we examine (1) whether the prosecutor's remarks were indeed improper and, if so, (2) whether they were flagrant. Macias v. Makowski, 291 F.3d 447, 452 (6th Cir.2002). Harmless errors are disregarded. Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir.2003). The prosecutor's remarks were not improper because they did not misstate the law. In State v. Taylor, 78 Ohio St.3d 15, 676 N.E.2d 82 (1997), the Supreme Court of Ohio stated that it is “not possible to formulate a bright-line test that emphatically distinguishes between the presence or absence of ‘prior calculation and design.’ Instead, each case turns on the particular facts and evidence presented at trial.” Id. at 89. While the court has stated that “ ‘momentary deliberation’ is insufficient” to support “prior calculation and design,” it has also held that “[n]either the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves.” State v. D'Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909, 918 (1993) (quoting State v. Pierce, 64 Ohio St.2d 281, 414 N.E.2d 1038, 1042 (1980)) (internal quotation marks omitted). See also 1974 Committee Comment to Ohio Revised Code Annotated § 2903.01 (same).

Consistent with these decisions, the Supreme Court of Ohio acknowledged in Taylor that “[t]his court has upheld findings of prior calculation and design in some short-lived emotional situations other than the Technical Committee's ‘classic’ concept of the ‘planned, cold-blooded killing.’ ” Taylor, 676 N.E.2d at 89. See, e.g., State v. Conway, 108 Ohio St.3d 214, 842 N.E.2d 996, 1013 ¶ 46 (2006) (holding that the “two to two and a half minutes” between the stabbing of defendant's brother and defendant's first retaliatory shot was sufficient to establish “prior calculation and design”); Ohio's appellate courts have similarly held. See, e.g., State v. Williams, No. 03AP-24, 2003 WL 22434597, at *11-*12 ¶ 15 (Ohio Ct.App. Oct. 28, 2003) (unpublished) (holding that “prior calculation and design” was established where defendant shot unfamiliar victims several times after a confrontation that “only lasted a few minutes”).

The absence of a “bright-line test” was fertile ground for legal argument. The prosecutor's remarks that “we have to show that he had some degree of forethought that he thought about it for some period of time, [but that] there is no legally required period of time” and that “it is legally possible for the defendant to have in his mind sufficient prior calculation and design in [10 to 15 seconds]” were neither erroneous nor improper.

Moreover, the court, not the prosecutor, instructs the jury on the applicable law. Palmer does not contend that the court's instructions on “prior calculation and design” were erroneous, and we presume that the jury followed the court's instructions on the law. Tines, 70 F.3d at 898. For these reasons, we alternatively hold Palmer's claim of prosecutorial misconduct arising from the prosecutor's allegedly misleading argument about “prior calculation and design” both forfeited and meritless.

2.

Regarding the remaining two claims of alleged prosecutorial misconduct-the introduction of evidence in the penalty phase that Palmer failed to pay child support and sexually abused his children-the district court held them procedurally defaulted because they “were not raised in the state courts as errors occurring in the penalty phase of the trial” and alternatively meritless because the evidence was “fair rebuttal” to Palmer's evidence of “his kind and considerate nature” and his testimony that “he was upset by his loss of his children in his divorce.” Palmer, 2005 WL 3965400, at *32. The court also found it unlikely that the alleged failure to pay child support “was the proverbial ‘straw that broke the camel's back’ ” because of the “substantial evidence against him respecting the aggravating circumstances of the murders.” Id. Regarding the sexual abuse evidence, the court noted that Palmer's wife “vacillated and equivocated about the truth” of this divorce petition allegation and “testified that the allegation may have been suggested to her daughter by her family members.” Id. The court concluded that “the complained-of evidence was unlikely to have impacted the outcome of Palmer's sentencing hearing given the strong evidence against him.” Id.

Palmer contends that the district court erred in ruling that these claims were procedurally defaulted and meritless. Regarding procedural default, he asserts that: he raised the issues in his direct appeal, although he referred to them as “other acts” in the guilt phase of his trial; he was not required to raise the claims as “mitigation phase claims” to properly preserve them; neither the state appeals court nor the Supreme Court of Ohio relied on a procedural bar when reviewing the claims; and the state reviewing courts were required to review the “cumulative effect of improper comments made during the course of the entire trial.”

We need not address whether the claims were procedurally defaulted because they are meritless. Although Palmer contends that the district court erred in ruling that he “opened the door” to this evidence, the admission of the evidence did not violate clearly established Supreme Court precedent because the Constitution permits the states to admit all other-acts evidence in the penalty phase of a capital case: Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment. Indeed, the sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty. Tuilaepa v. California, 512 U.S. 967, 979-80, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (internal citations, quotation marks, and ellipses omitted) (emphasis added).

Even if that were not the case, we, like the district court, are confident that the admission of the complained-of evidence did not so infect the trial with unfairness as to make the resulting death sentence a denial of due process because of the overwhelming evidence of defendant's guilt. Accordingly, petitioner is not entitled to relief on these claims. FN9. Palmer's claims of prosecutorial misconduct regarding additional other-acts evidence are not properly before us because they were not certified for review, and we do not consider them. Cooey, 289 F.3d at 887.

III.

We affirm the district court's denial of Palmer's petition for a writ of habeas corpus.



Donald "Duke" Palmer

 

 

 
 
 
 
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