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.
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).
A chipped ham and Velveeta cheese sandwich, ranch-flavored
Doritos, peanut M&Ms, hazelnut ice cream, cheese cake and soda.
"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."
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
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
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
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
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
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
Palmer: Hill Not Guilty; Says Partner Was No
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
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
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
Killer of two is executed; Palmer said he
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
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
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.
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
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
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
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.
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
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.
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.
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."
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
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
That would mean that we're only here to propagate
our species, and we are the only threat to the rest of life on
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
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
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
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
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
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!
Name: Donald L. Palmer, Jr. aka "Duke"
Date of Birth; February 11th, 1965
Education: H.S. Diploma/Technical training
Conviction; Agg Murder (x2) Agg. Robbery (x2)
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
Donald L. Palmer
878 Coitsville-Hubbard Rd
Youngstown, Ohio 44505
State v. Palmer, Not Reported in
N.E.2d, 1996 WL 495576 (Ohio App. 7 Dist. 1996). (Direct Appeal)
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
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
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
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).
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).
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 ...
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
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):  Purpose to cause the death of
another is an essential element of the crime of aggravated murder.
 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].  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. 
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.  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.  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
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.
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.
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.
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.
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.
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.
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
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)
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.
We affirm the district court's denial of
Palmer's petition for a writ of habeas corpus.
Donald "Duke" Palmer