Citations:

State v. Smith, 97 Ohio St.3d 367, 780 N.E.2d 221 (Ohio 2002). (Direct Appeal)
Smith v. Bradshaw, 591 F.3d 517 (6th Cir. 2010). (Habeas)

Final/Special Meal:

Pizza, fried fish, chocolate ice cream and soda.

Final Words:

None.

Name: Steven T. Smith
DOC#: CCI A369-054
Date of Birth: 2/9/1967
Gender: Male
Race: White
County of Conviction: Richland County
Institution: Chillicothe Correctional Institution
Executed: 05/01/13

On May 1, 2013, Steven Smith was executed for the 1998 aggravated murder of Autumn Carter.

IN RE: STEVEN T. SMITH, CCI #A369-054
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: APRIL 2, 2013
CRIME, CONVICTION: Aggravated Murder
DATE, PLACE OF CRIME: SEPTEMBER 29, 1998 in Mansfield, Ohio,
COUNTY: Richland
CASE NUMBER: 98CR601
VICTIM: Autumn B. Carter

INDICTMENT: Aggravated Murder (2 cts)
VERDICT: Found guilty.
DATE OF SENTENCE: March 25, 1999
SENTENCE: DEATH.
ADMITTED TO INSTITUTION: March 26, 1999
JAIL TIME CREDIT: 1 day
TIME SERVED: 169 months
AGE AT ADMISSION: 32 years old
CURRENT AGE: 46 years old
DATE OF BIRTH: February 9, 1967

JUDGES: Honorable James DeWeese
PROSECUTING ATTORNEY: James Mayer

Ohio executes man who killed, raped 6-month-old in Mansfield

Cleveland.com

May 01, 2013

LUCASVILLE, Ohio — One family wept loudly and another family cheered today as a man was executed for killing a 6-month-old as he raped her. Steve Smith, 46, was executed by lethal injection at the state prison in Lucasville for the 1998 killing of his live-in girlfriend’s daughter, Autumn Carter, in Mansfield. Smith had recently tried to get his sentence reduced to life in prison, arguing that he was too drunk to realize that his assault was killing Autumn and that he didn’t mean to hurt her. The Ohio Parole Board and Gov. John Kasich turned him down unanimously.

In the 25 minutes between when Smith walked into the death chamber flanked by prison guards and when the lethal injection killed him, his only child, 21-year-old Brittney, and his niece sobbed and shook with grief. Smith declined to say any last words, then looked at Brittney sitting behind a pane of glass. “I love you,” Brittney said as she wept. Smith turned his head away and appeared to be struggling not to cry, his chin shaking. As the lethal injection began, Smith took several heavy breaths before he closed his eyes. He was pronounced dead at 10:29 a.m.

Less than 3 feet away from Brittney and separated by a wall, Autumn’s mother — Kesha Frye — watched Smith quietly. After he was dead, Frye’s sister pumped her fists in the air. “I’m glad he’s dead, and I hope he burns in hell,” Frye said surrounded by her family after the execution. Frye’s father and Autumn’s grandfather, Patrick Hicks, said Smith’s execution was too good for him. “Because of him, Autumn never had a chance to take her first step, she never had her first birthday or a first day of school,” he said. “It’s just unfortunate that this man gets to die a peaceful death after the torture he put Autumn through.”

Days before the execution, Brittney Smith said that she has never believed her father killed Autumn and that he had only admitted to it because he had given up hope. “I know my dad’s innocent,” she said. “I do not believe he did this, and you know, he raised all my cousins, my sister before I was even born, and he never did anything [sexually].”

After the execution, Smith’s attorney, Joseph Wilhelm, said that his client “felt great remorse for the tragic and shocking crime he committed.” “He was well-behaved and sober while in prison, causing no problems in the institution and living each day with the guilt and grief caused by his alcohol-fueled crime,” said Wilhelm, who also witnessed the execution. “While some may trumpet his execution as appropriate revenge for his crime, Ohio is no safer having executed Steven Smith than had he lived the remainder of his natural life in prison.”

Back on the night of Sept. 29, 1998, Frye was awoken by Smith, her live-in boyfriend of four months. Smith, who was drunk and naked, laid a naked and lifeless Autumn on Frye’s bed, according to court records. Frye rushed the baby and her other 2-year-old daughter to a neighbor’s house and called 9-1-1. Autumn was pronounced dead after doctors tried to revive her for more than an hour, and Smith was arrested. The baby was covered in bruises and welts and had severe injuries showing she had been brutally raped, though no semen was present.

At the home, there was no sign of forced entry, and police found a large amount of white cloth that came from Autumn’s diaper strewn about; police found the rest of the diaper in a garbage bin outside, along with 10 empty cans of beer. At the time, Smith told police that he “didn’t do anything.” “I’m not sick like that,” he said.

At trial, Smith didn’t testify in his own defense on the advice of his attorneys, even as prosecutors repeatedly referred to him as a “baby raper,” showed pictures of Autumn’s battered body and told jurors that her assault lasted up to a half-hour. Expert witnesses for Smith testified that he might have accidentally suffocated the girl within three to five minutes of the assault. The jury found Smith guilty of aggravated murder and sentenced him to die.

At an April 2 hearing in which Smith sought to have his death sentence reduced to life in prison, Smith told the Ohio Parole Board that he was sorry and wished he could ask Autumn for forgiveness. Smith spent his last night eating pizza, fried fish, chocolate ice cream and soda, listening to the Cincinnati Reds play the St. Louis Cardinals, mailing letters and visiting with his daughter and niece, prison officials said.

Smith became the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.

Kasich denies clemency for man who killed baby

By Andrew Welsh-Huggins - Dispatch.com

Thursday April 18, 2013

Gov. John Kasich yesterday rejected a plea for mercy by a condemned man who says he intended to rape his girlfriend’s 6-month-old daughter but didn’t mean to kill her. The decision by Kasich upheld a unanimous recommendation by the Ohio Parole Board on April 10 to deny clemency for Steven Smith, calling his crime “among the worst of the worst.” Kasich did not explain his decision as is his custom, except to note the parole board’s previous decision.

The board said some arguments for sparing Smith, such as his turbulent childhood, were far outweighed by the nature of the crime. “Smith took the life of an innocent 6-month-old infant while using the baby to sexually gratify himself,” the board said. “It is hard to fathom a crime more repulsive or reprehensible in character.” Smith’s crime was “clearly among the worst of the worst,” the board said, echoing language that proponents of Ohio’s 30-year-old capital punishment law used in pushing for the statute. The baby, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith’s attorneys argued in court filings with the parole board, which heard the case last week. And Ohio law is clear, they said: A death sentence requires an intent to kill the victim.

“The evidence suggests that Autumn’s death was a horrible accident,” Smith’s attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board. They continued: “Despite the shocking nature of this crime, Steve’s death sentence should be commuted because genuine doubts exist whether he even committed a capital offense.” The parole board rejected that argument, saying the “ferociousness” of the attack on the baby was proof of Smith’s intention to kill. It “stretches credulity to think that Smith had no intention to kill Autumn when he assaulted her in a manner that made death a virtual certainty,” the board said.

Smith’s attorneys declined to comment yesterday. Smith, 46, was never charged with rape, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say. However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and called Smith’s actions “the purposeful murder of a helpless baby girl.” Prosecutor James Mayer told the parole board in his written statement that the girl’s injuries were consistent with a homicide that contradicts Smith’s claim he didn’t intend to kill her. “The horrific attack upon Autumn Carter showed much more than Smith’s stated purpose,” Mayer said. Mayer said he didn’t know why Smith wasn’t charged with rape, but he said it wasn’t part of a trial strategy.

The attack happened early in the morning of Sept. 29, 1998, in the Mansfield apartment of the girl’s mother, Kaysha Frye, whom Smith had been dating for about six months. Frye was awakened after 3 a.m. by a naked Smith, who placed Autumn beside her in bed, according to records. Frye realized the girl wasn’t breathing, told Smith he’d killed her and then ran to a neighbor’s house for help. Smith, known to consume as many as 12 beers a day, had had several beers the previous evening and had a blood-alcohol content of 0.123, well above the legal limit for drivers, when he was tested almost eight hours later, records show. Smith had unsuccessfully tried to have sex with his girlfriend the evening before the attack, according to records. The prosecutor argued that Smith’s assault of the girl was revenge for his failure to perform with Frye. Smith’s attorneys dispute this, saying the girlfriend was not upset with him.

Prosecutors presented evidence at trial that Smith’s attack lasted as long as 30 minutes, during which time Smith beat the girl to death. Expert witnesses for Smith concluded he may have accidentally suffocated the girl within three to five minutes while he lay on top of her, according to his clemency petition. Smith is scheduled to die May 1. If executed, he would become the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute Smith and two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.

Steven Smith, Condemned Killer, Won't Get Mercy From Ohio Gov. John Kasich

By Andrew Welsh-Huggins - HuffingtonPost.com

April 17, 2013

COLUMBUS, Ohio -- Gov. John Kasich on Wednesday rejected a plea for mercy by a condemned man who says he intended to rape his girlfriend's 6-month-old daughter but didn't mean to kill her. The decision by Kasich, a Republican, upheld a unanimous recommendation by the Ohio Parole Board on April 10 to deny clemency for Steven Smith, calling his crime "among the worst of the worst." Kasich did not explain his decision as is his custom, except to note the parole board's previous decision.

The board said some arguments for sparing Smith, such as his turbulent childhood, were far outweighed by the nature of the crime. "Smith took the life of an innocent 6-month-old infant while using the baby to sexually gratify himself," the board said. "It is hard to fathom a crime more repulsive or reprehensible in character." Smith's crime was "clearly among the worst of the worst," the board said, echoing language that proponents of Ohio's 30-year-old capital punishment law used in pushing for the statute.

The baby, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith's attorneys argued in court filings with the parole board, which heard the case last week. And Ohio law is clear, they said: A death sentence requires an intent to kill the victim. "The evidence suggests that Autumn's death was a horrible accident," Smith's attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board. They continued: "Despite the shocking nature of this crime, Steve's death sentence should be commuted because genuine doubts exist whether he even committed a capital offense."

The parole board rejected that argument, saying the "ferociousness" of the attack on the baby was proof of Smith's intention to kill. It "stretches credulity to think that Smith had no intention to kill Autumn when he assaulted her in a manner that made death a virtual certainty," the board said. Smith's attorneys declined to comment Wednesday.

Smith, 46, was never charged with rape, meaning the jury's only choice was to convict or acquit him of aggravated murder, his attorneys say. However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime – such as burglary, robbery, arson or the killing of a police officer or child – is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and called Smith's actions "the purposeful murder of a helpless baby girl." Prosecutor James Mayer told the parole board in his written statement that the girl's injuries were consistent with a homicide that contradicts Smith's claim he didn't intend to kill her. "The horrific attack upon Autumn Carter showed much more than Smith's stated purpose," Mayer said. Mayer said he didn't know why Smith wasn't charged with rape, but he said it wasn't part of a trial strategy.

The attack happened early in the morning of Sept. 29, 1998, in the Mansfield apartment of the girl's mother, Kaysha Frye, whom Smith had been dating for about six months. Frye was awakened after 3 a.m. by a naked Smith, who placed Autumn beside her in bed, according to records. Frye realized the girl wasn't breathing, told Smith he'd killed her and then ran to a neighbor's house for help. Smith, known to consume as many as 12 beers a day, had had several beers the previous evening and had a blood-alcohol content of 0.123, well above the legal limit for drivers, when he was tested almost eight hours later, records show. Smith had unsuccessfully tried to have sex with his girlfriend the evening before the attack, according to records. The prosecutor argued that Smith's assault of the girl was revenge for his failure to perform with Frye. Smith's attorneys dispute this, saying the girlfriend was not upset with him. Prosecutors presented evidence at trial that Smith's attack lasted as long as 30 minutes, during which time Smith beat the girl to death. Expert witnesses for Smith concluded he may have accidentally suffocated the girl within three to five minutes while he lay on top of her, according to his clemency petition.

Smith is scheduled to die May 1. If executed, he would become the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute Smith and two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.

Steven Smith

ProDeathPenalty.com

In April 1998, Steven Smith met and started dating Keysha Frye. A short time later, Smith moved in with Frye and her two young daughters, Ashley, age two, and Autumn, six months. In the middle of September 1998, Frye asked Smith to move out due to his heavy drinking. However, Smith moved back in after he promised Frye that he would stop drinking. Around this same time, Smith was fired from his job and began watching Frye's children while she was at work. On September 28, 1998, Frye arrived home from work at 2:30 p.m. According to Frye's account of what occurred that afternoon and evening, she and Smith left the apartment with her two children. They ran some errands, ate dinner at Burger King, and visited one of Smith's friends, Brett Samples. While visiting Samples, Smith drank three beers and played pool. They left Samples's home at 7:30 p.m. On the way home, Smith purchased a twelve-pack of Busch Ice at a gas station and drank one of the beers in the car. Upon arriving home around 8:00 p.m., Frye locked the apartment's two outer doors. Smith changed Autumn's diaper, fed her, and dressed her in a pink sleeper. At around 10:15 p.m., Smith took Autumn upstairs and put her to sleep in her crib. Frye put Ashley to bed at 10:30 p.m.

Frye went back downstairs and watched television with Smith, who drank more beer. Shortly thereafter, she and Smith went upstairs. Smith removed his cutoff shorts and red underwear, and they had sexual intercourse. Smith did not ejaculate, but Frye stated that he did not seem upset. Frye and Smith then went back downstairs, watched more television, and Smith consumed more beer. Frye went upstairs to sleep at 11:00 p.m., while Smith remained downstairs watching television. Frye checked in on her children and brought Ashley into her bed to sleep with her. Frye left Autumn in her crib.

At around 3:22 a.m. on September 29, 1998, Frye was awakened by Smith, who was standing next to her bed, naked. Smith placed Autumn, who was also naked, down beside Frye in bed. Frye went to pick Autumn up and noticed that Autumn's head fell over her arm. She then placed her hand on Autumn's stomach and realized that the baby was not breathing. Frye told Smith that he had killed her baby. In response, Smith threw the alarm clock and said that the baby was not dead. Frye quickly left the apartment with Autumn and Ashley and went to the apartment of neighbors Mya Brooks and Jeff Pierce. Brooks testified that when she opened the door, Frye screamed, "He killed my baby, he killed my baby, Mya, help me." Frye entered the apartment with her children, and Brooks called 911. Before the ambulance arrived, Smith came to Brooks's door, asked what Frye was doing, and exclaimed that "he didn't do anything" and "why was she fucking lying." Brooks shut the door on Smith.

Emergency medical personnel arrived and discovered Autumn's nude, lifeless body lying on a blanket. They observed injuries on her head and bruising around her eyes. They began CPR, and Autumn was transported to the hospital. The emergency room doctor testified that upon her arrival, Autumn had no pulse and had suffered a retinal hemorrhage. In addition to her visible bruising, the physician also stated that Autumn had bruising around her rectum and that the opening of her vagina was ten times the normal size for a baby her age--injuries that are consistent with sexual abuse. After trying to resuscitate Autumn for close to an hour, medical personnel pronounced her dead.

In the meantime, shortly after EMS arrived at the scene, Pierce observed Smith throw a trash bag in a dumpster. He heard Smith say that he did not do anything and that he was leaving. Pierce told Smith to stay with him, which he agreed to do. Soon thereafter, the police arrived at the crime scene. Officers entered Frye's apartment and saw no signs of forcible entry. They found that the television had been left on and was extremely loud. Police also discovered the victim's pink baby sleeper under the coffee table and Smith's cutoffs and jeans near the couch. They also found whitish-colored material, later determined to be pieces of shredded diaper, scattered on the floor in the same area near the baby swing and sofa. Small piles of the victim's hair were found on the coffee table. The police also retrieved a garbage bag from the outside trash dumpster that contained a torn baby diaper, Smith's tee shirt, and ten empty cans of Busch Ice.

Officer Joseph Dean Petrecky approached Smith, who was standing outside the apartment. Before asking him any questions, Smith told the officer, "I didn't do it, I didn't do it." Smith smelled of alcohol, was disheveled, and swayed back and forth while speaking with the officer. The officer arrested Smith for public intoxication. Later that morning, at 11:00 a.m., Smith's blood-alcohol level was tested and found to be .123. At the police station, Detective Robert Burks interviewed Smith. He told the detective that he had drunk four beers during the entire day and night. He stated that he and Frye had gone to bed at midnight and that he was awakened by Frye, who was accusing him of killing her daughter.

On October 27, 1998, Smith gave police a second statement. In that statement, he changed his version of what had occurred. He told police that he had consumed three beers at Samples's house and six additional beers when he returned to the apartment. Smith said that later that evening, after they had returned home, they put Autumn to sleep in the baby swing and Ashley to sleep on the downstairs love seat. Smith also said they had had sexual intercourse on the living room couch while the two children were asleep in the same room. According to Smith, he woke up at 3:25 a.m. and, believing that something was wrong with Autumn, carried her upstairs while he yelled for Frye. At that point, Frye grabbed Autumn and accused him of killing her. On November 3, 1998, Smith signed and verified the October 27 statement. In answer to follow-up questions, Smith denied putting trash in the dumpster the morning of the crime and said that the cotton materials found on the living room floor were baby wipes put there by Ashley.

The grand jury indicted Smith on two counts of aggravated murder, with two death penalty specifications, murder during rape or attempted rape and purposely causing the death of someone under the age of 13. Each count also contained a sexual motivation specification and a sexually violent predator specification. At trial, in addition to the foregoing evidence, Dr. Marvin S. Platt, the coroner who performed the autopsy, displayed autopsy photographs and slides and testified that the victim died from compression asphyxia and blunt trauma to the head. Dr. Platt found that the injuries to the victim's head and the abrasions on her forehead, cheek, and chin indicated that the victim was lying on her abdomen and that her face had been forced into a pillow. Contusions to her buttocks indicated that they were subject to pressure from the weight of another person. Dr. Platt further testified that the victim suffered subarachnoid and retinal hemorrhages consistent with shaken baby syndrome, indicating that an attempt had been made to restrain the baby. Other bruising and abrasions revealed that the baby had resisted the attack. The victim was also missing hair from the back of her head, evidence consistent with someone grasping the back of her head. Furthermore, as attested by the emergency room physician, Dr. Platt found that the victim's clitoris was red, her vagina was enlarged, and there was a hemorrhage in her anus, all indicative of attempted penetration.

Forensic evidence revealed human blood on two seat cushions and on Autumn's pink sleeper. DNA tests excluded Smith as the source of the blood. However, DNA from the two couch cushions and the pink sleeper matched the baby's DNA. No semen was found.

In his defense, Smith offered the testimony of Robert Forney Jr., a board-certified forensic toxicologist, to support his theory that he was intoxicated when he committed the assault. Forney testified that Smith's blood-alcohol level would have been at least .36 and possibly as high as .60 at 11:30 p.m. on September 28. According to Forney, even an alcoholic with a .28 blood-alcohol level would be intoxicated. Smith called other witnesses on his behalf who testified that he was a heavy drinker who had blacked out in the past. In addition, his former girlfriend, with whom he had a child, and his sister testified that when he watched their children, he took good care of them.

The jury found Smith guilty as charged. After a penalty hearing, the jury recommended death on each aggravated murder charge. The state then dismissed the violent sexual predator specification. The trial court sentenced Smith to death on each aggravated murder count, finding that the two aggravating circumstances were not outweighed by any mitigating factors.

State v. Smith, 97 Ohio St.3d 367, 780 N.E.2d 221 (Ohio 2002). (Direct Appeal)

Defendant was convicted in the Court of Common Pleas, Richland County, of aggravated murder and was sentenced to death. He appealed. The Supreme Court, Francis E. Sweeney, Sr., J., held that: (1) defendant was not entitled to instruction on lesser included offense of voluntary manslaughter or on voluntary intoxication; (2) instruction that jury must impose life sentence if not all twelve jurors agreed to recommend death was not prejudicial error; (3) autopsy slides and photographs of victim's injuries were admissible; (4) admission of hearsay statement of victim's mother was harmless error; and (5) sentence of death was appropriate and was not disproportionate. Affirmed.

FRANCIS E. SWEENEY, SR., J.

In April 1998, defendant-appellant, Steven Smith, met and started dating Keysha Frye. A short time later, Smith moved in with Frye and her two young daughters, Ashley, age two, and Autumn, six months. In the middle of September 1998, Frye asked Smith to move out due to his heavy drinking. However, Smith moved back in after he promised Frye that he would stop drinking. Around this same time, Smith was fired from his job and began watching Frye's children while she was at work. On September 28, 1998, Frye arrived home from work at 2:30 p.m. According to Frye's account of what occurred that afternoon and evening, she and Smith left the apartment with her two children. They ran some errands, ate dinner at Burger King, and visited one of Smith's friends, Brett Samples. While visiting Samples, Smith drank three beers and played pool. They left Samples's home at 7:30 p.m. On the way home, Smith purchased a twelve-pack of Busch Ice at a gas station and drank one of the beers in the car.

Upon arriving home around 8:00 p.m., Frye locked the apartment's two outer doors. Smith changed Autumn's diaper, fed her, and dressed her in a pink sleeper. At around 10:15 p.m., Smith took Autumn upstairs and put her to sleep in her crib. Frye put Ashley to bed at 10:30 p.m. Frye went back downstairs and watched television with Smith, who drank more beer. Shortly thereafter, she and Smith went upstairs. Smith removed his cutoff shorts and red underwear, and they had sexual intercourse. Smith did not ejaculate, but Frye stated that he did not seem upset. Frye and Smith then went back downstairs, watched more television, and Smith consumed more beer. Frye went upstairs to sleep at 11:00 p.m., while Smith remained downstairs watching television. Frye checked in on her children and brought Ashley into her bed to sleep with her. Frye left Autumn in her crib. At around 3:22 a.m. on September 29, 1998, Frye was awakened by Smith, who was standing next to her bed, naked. Smith placed Autumn, who was also naked, down beside Frye in bed. Frye went to pick Autumn up and noticed that Autumn's head fell over her arm. She then placed her hand on Autumn's stomach and realized that the baby was not breathing. Frye told Smith that he had killed her baby. In response, Smith threw the alarm clock and said that the baby was not dead.

Frye quickly left the apartment with Autumn and Ashley and went to the apartment of neighbors Mya Brooks and Jeff Pierce. Brooks testified that when she opened the door, Frye screamed, “[H]e killed my baby, he killed my baby, Mya, help me.” Frye entered the apartment with her children, and Brooks called 911. Before the ambulance arrived, Smith came to Brooks's door, asked what Frye was doing, and exclaimed that “he didn't do anything” and “why was she fucking lying.” Brooks shut the door on Smith. Emergency medical personnel arrived and discovered Autumn's nude, lifeless body lying on a blanket. They observed injuries on her head and bruising around her eyes. They began CPR, and Autumn was transported to the hospital. The emergency room doctor testified that upon her arrival, Autumn had no pulse and had suffered a retinal hemorrhage. In addition to her visible bruising, the physician also stated that Autumn had bruising around her rectum and that the opening of her vagina was ten times the normal size for a baby her age—injuries that are consistent with sexual abuse. After trying to resuscitate Autumn for close to an hour, medical personnel pronounced her dead. In the meantime, shortly after EMS arrived at the scene, Pierce observed Smith throw a trash bag in a dumpster. He heard Smith say that he did not do anything and that he was leaving. Pierce told Smith to stay with him, which he agreed to do. Soon thereafter, the police arrived at the crime scene. Officers entered Frye's apartment and saw no signs of forcible entry. They found that the television had been left on and was extremely loud. Police also discovered the victim's pink baby sleeper under the coffee table and Smith's cutoffs and jeans near the couch. They also found whitish-colored material, later determined to be pieces of shredded diaper, scattered on the floor in the same area near the baby swing and sofa. Small piles of the victim's hair were found on the coffee table. The police also retrieved a garbage bag from the outside trash dumpster that contained a torn baby diaper, Smith's tee shirt, and ten empty cans of Busch Ice.

Officer Joseph Dean Petrecky approached Smith, who was standing outside the apartment. Before asking him any questions, Smith told the officer, “I didn't do it, I didn't do it.” Smith smelled of alcohol, was disheveled, and swayed back and forth while speaking with the officer. The officer arrested Smith for public intoxication. Later that morning, at 11:00 a.m., Smith's blood-alcohol level was tested and found to be .123. At the police station, Detective Robert Burks interviewed Smith. He told the detective that he had drunk four beers during the entire day and night. He stated that he and Frye had gone to bed at midnight and that he was awakened by Frye, who was accusing him of killing her daughter. On October 27, 1998, Smith gave police a second statement. In that statement, he changed his version of what had occurred. He told police that he had consumed three beers at Samples's house and six additional beers when he returned to the apartment. Smith said that later that evening, after they had returned home, they put Autumn to sleep in the baby swing and Ashley to sleep on the downstairs love seat. Smith also said they had had sexual intercourse on the living room couch while the two children were asleep in the same room. According to Smith, he woke up at 3:25 a.m. and, believing that something was wrong with Autumn, carried her upstairs while he yelled for Frye. At that point, Frye grabbed Autumn and accused him of killing her.

On November 3, 1998, Smith signed and verified the October 27 statement. In answer to followup questions, Smith denied putting trash in the dumpster the morning of the crime and said that the cotton materials found on the living room floor were baby wipes put there by Ashley. The grand jury indicted Smith on two counts of aggravated murder, with two death penalty specifications, under R.C. 2929.04(A)(7) (murder during rape or attempted rape) and R.C. 2929.04(A)(9) (purposely causing the death of someone under the age of 13). Each count also contained a sexual motivation specification and a sexually violent predator specification.

At trial, in addition to the foregoing evidence, Dr. Marvin S. Platt, the coroner who performed the autopsy, displayed autopsy photographs and slides and testified that the victim died from compression asphyxia and blunt trauma to the head. Dr. Platt found that the injuries to the victim's head and the abrasions on her forehead, cheek, and chin indicated that the victim was lying on her abdomen and that her face had been forced into a pillow. Contusions to her buttocks indicated that they were subject to pressure from the weight of another person. Dr. Platt further testified that the victim suffered subarachnoid and retinal hemorrhages consistent with shaken baby syndrome, indicating that an attempt had been made to restrain the baby. Other bruising and abrasions revealed that the baby had resisted the attack. The victim was also missing hair from the back of her head, evidence consistent with someone grasping the back of her head. Furthermore, as attested by the emergency room physician, Dr. Platt found that the victim's clitoris was red, her vagina was enlarged, and there was a hemorrhage in her anus, all indicative of attempted penetration. Forensic evidence revealed human blood on two seat cushions and on Autumn's pink sleeper. DNA tests excluded appellant as the source of the blood. However, DNA from the two couch cushions and the pink sleeper matched the victim's DNA. No semen was found.

In his defense, Smith offered the testimony of Robert Forney Jr., a board-certified forensic toxicologist, to support his theory that he was intoxicated when he committed the assault. Forney testified that Smith's blood-alcohol level would have been at least .36 and possibly as high as .60 at 11:30 p.m. on September 28. According to Forney, even an alcoholic with a .28 blood-alcohol level would be intoxicated. Smith called other witnesses on his behalf who testified that he was a heavy drinker who had blacked out in the past. In addition, his former girlfriend, with whom he had a child, and his sister testified that when he watched their children, he took good care of them.

The jury found Smith guilty as charged. After a penalty hearing, the jury recommended death on each aggravated murder charge. The state then dismissed the violent sexual predator specification. The trial court sentenced appellant to death on each aggravated murder count, finding that the two aggravating circumstances were not outweighed by any mitigating factors. Smith now appeals to this court as a matter of right. There are 19 propositions of law before us.FN1 We have repeatedly held that we need not discuss, in opinion form, every proposition of law raised in a death penalty appeal. We have fully considered each argument advanced and have reviewed the record in its entirety. We have also reviewed the penalty of death for appropriateness and proportionality. Upon review, and for the reasons that follow, we uphold Smith's convictions and sentence of death. FN1. Smith originally presented 20 propositions of law for our consideration. However proposition of law 20 has been withdrawn.

I Jury Instructions

A. Guilt Phase

In proposition of law one, Smith contends that the trial court erred by refusing to instruct the jury on the lesser included offense of involuntary manslaughter and on voluntary intoxication. Smith maintains that although he had the intent to commit a sexual assault, he lacked the intent necessary to support a finding of having a purpose to kill and that his intoxication prevented his realizing the severity of the injuries he was inflicting on Autumn. An instruction on a lesser included offense is “required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. We find no evidence to suggest that Smith lacked the purpose to kill the victim in this case.

Contrary to Smith's contention, he presented no evidence at trial indicating that he intended to sexually assault, rather than kill, Autumn. Instead, the evidence reveals that Smith purposely killed Autumn while raping or attempting to rape her. Medical testimony found that the weight and pressure of Smith's body on top of the sixteen-pound baby was one of the direct causes of her death. The violence of the attack, which was estimated by the coroner to have lasted between ten and thirty minutes, resulted in hemorrhages to her brain and retina and caused her to sustain brain contusions and other contusions on her body. Witnesses testified that these injuries showed intent to kill. Consequently, we reject Smith's argument that evidence of purpose was lacking. Accordingly, we find that the court did not err in denying Smith's request for an involuntary manslaughter instruction. See State v. Raglin (1998), 83 Ohio St.3d 253, 257–258, 699 N.E.2d 482; State v. Smith (2000), 89 Ohio St.3d 323, 331, 731 N.E.2d 645. We also find that the trial court acted properly in refusing to instruct the jury on voluntary intoxication. It is within the trial court's discretion “to determine whether the evidence presented at trial is sufficient to require a jury instruction on intoxication where the accused claims that his inebriated condition negated the mental state required as an element of the crime charged.” State v. Wolons (1989), 44 Ohio St.3d 64, 541 N.E.2d 443, paragraph two of the syllabus; State v. Nields (2001), 93 Ohio St.3d 6, 22–23, 752 N.E.2d 859.

Given the evidence presented, the court did not abuse its discretion. Smith's strongest evidence of intoxication was his expert's testimony, placing his blood-alcohol level between .26 and .6 at the time of the offense. However, a high blood-alcohol level does not compel an intoxication instruction ( State v. Mitts [1998], 81 Ohio St.3d 223, 229, 690 N.E.2d 522), since even severe intoxication can co-exist with purpose. State v. Hicks (1989), 43 Ohio St.3d 72, 74, 538 N.E.2d 1030. The evidence reveals that Smith understood what was occurring after the offenses were committed. He understood that Frye accused him of killing her child and consciously made the decision to throw evidence into a dumpster. Additional testimony from Smith's friends and relatives showed that although Smith was a heavy drunker, he was able to handle his alcohol well. This evidence supports the conclusion that Smith had the intent to murder Autumn. Accordingly, no instruction on voluntary intoxication was required. As for the remaining arguments regarding jury instructions, since Smith did not raise an objection, we apply a plain-error analysis. Crim.R. 30(A).

Smith challenges the court's instruction on an accused's right not to take the witness stand. In particular, Smith objects to that part of the instruction that said that a defendant has the constitutional right not to testify and “ is not called on to advance a theory that may explain something even if it will otherwise remain a mystery.” (Emphasis added.) Smith contends that the italicized language suggests that he could have explained the mystery surrounding the murder, which implied that he was guilty of the crimes charged. We disagree. The instruction taken as a whole emphasized appellant's right to remain silent. The court further charged the jurors that they “must not be influenced by the Defendant's failure to testify.” Although the language Smith complains of was unnecessary, it does not, when viewed in the context of the overall charge, violate his Fifth Amendment rights. We overrule proposition of law one. We summarily reject propositions of law 13 and 19, which address the court's failure to define “principal offender” and the court's use of the statutory definition of “reasonable doubt” as contained in R.C. 2901.05(D). We have repeatedly held that the failure to define “principal offender” does not constitute plain error. See State v. Chinn (1999), 85 Ohio St.3d 548, 559, 709 N.E.2d 1166. We have also upheld the statutory definition of “reasonable doubt.” See, e.g., State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph eight of the syllabus; State v. Moore (1998), 81 Ohio St.3d 22, 37–38, 689 N.E.2d 1.

B. Penalty Phase

In proposition of law five, Smith challenges the trial court's instruction regarding life imprisonment on the ground that it failed to comply with State v. Brooks (1996), 75 Ohio St.3d 148, 162, 661 N.E.2d 1030. In Brooks, we found that the court erred in instructing jurors that they must unanimously determine that the death penalty is inappropriate before they consider a life sentence. The instruction at hand differs from that of Brooks in that the trial court here never advised the jury that it had to unanimously reject the death penalty before considering a life sentence. Instead, the jury was told that it must impose a life sentence if not all twelve jurors agreed to recommend death. The jurors were implicitly told that a single juror could prevent the death penalty. The instructions were consistent with R.C. 2929.03(D)(2). See State v. Stallings (2000), 89 Ohio St.3d 280, 293, 731 N.E.2d 159. Although it is advisable for courts to explicitly instruct the jury that a single juror “may prevent a death penalty recommendation by finding that the aggravating circumstances * * * do not outweigh the mitigating factors” ( State v. Madrigal [2000], 87 Ohio St.3d 378, 393, 721 N.E.2d 52), the charge as given did not create prejudicial error. We overrule proposition of law five. We summarily reject proposition of law 16 regarding the court's refusal to instruct on residual doubt as a mitigating factor, on authority of State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus.

II Voir Dire

In proposition of law 12, Smith contends that the trial court erred in denying his challenge for cause against juror Paula Bryant based on Bryant's strong views in favor of the death penalty. The standard for determining whether a prospective juror may be excluded for cause based upon his or her views on the death penalty is whether those views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Emphasis omitted.) Wainwright v. Witt (1985), 469 U.S. 412, 420, 105 S.Ct. 844, 83 L.Ed.2d 841, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581. In this case, juror Bryant indicated that she favored the death penalty. However, she later stated that she would listen to all of the evidence and that she would not be predisposed to recommending the death penalty. Instead, she would make the state prove that the aggravating circumstances outweighed the mitigating factors. Since the juror agreed to follow the law, we find that the trial court did not abuse its discretion in denying Smith's challenge for cause. We overrule appellant's proposition of law 12.

III. Trial Issues

A. Gruesome Photographs

In his second proposition of law, Smith argues that his due process rights were violated when the trial court erroneously admitted, over defense objection, 18 gruesome and cumulative photographs and slides of the victim during the guilt and penalty phase of trial. Smith contends that the photographs were irrelevant and highly prejudicial. The admission of photographs is left to the sound discretion of the trial court. Evid.R. 403, 611(A). We have previously held that “[p]roperly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.” State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; See, also, State v. Morales (1987), 32 Ohio St.3d 252, 257–258, 513 N.E.2d 267; State v. Twyford (2002), 94 Ohio St.3d 340, 357–358, 763 N.E.2d 122. The photographs in question reveal marks and abrasions on the victim's face, torso, and buttocks as well as injuries to her lips, ears, scalp, chin, vagina, and rectum. The autopsy slides depict injuries to the victim's internal organs. Although the trial judge was at first reluctant to admit the autopsy slides, he was persuaded that their admission was appropriate because they could be used to assist the coroner in his testimony.

Upon review, we find no reversible error in the admission of the photographs and slides at either phase of trial. To begin with, although many photographs and slides were admitted, we note that number alone does not require reversal. As we have previously stated, “the mere fact that there are numerous photos will not be considered reversible error unless the defendant is prejudiced thereby. Absent gruesomeness or shock value, it is difficult to imagine how the sheer number of photographs admitted can result in prejudice requiring reversal.” State v. DePew (1988), 38 Ohio St.3d 275, 281, 528 N.E.2d 542. Although arguably gruesome, these photographs and slides were relevant in that they depicted the wounds inflicted on the victim, supported the coroner's testimony on cause of death, and helped prove appellant's intent. With respect to the autopsy slides, the trial court reduced the possibility of undue prejudice by refusing to allow the slides to be taken into the deliberation room.

Moreover, even if some of the photographs or slides were improperly admitted, we note that any prejudice was harmless considering the overwhelming evidence of Smith's guilt. In addition, any prejudicial impact is minimized by our independent review. See State v. Davie (1997), 80 Ohio St.3d 311, 318, 686 N.E.2d 245.4 For the foregoing reasons, we overrule proposition of law two.

B. Improper Expert and Lay Testimony

In proposition of law six, Smith contends that Dr. Platt, the coroner, and Dr. Battels, the emergency room physician, offered opinions outside their area of expertise. In particular, he objects to the fact that the two physicians were asked to give their opinions about the grid-like patterns on Autumn's face and whether a cushion taken from Frye's sofa could have caused the abrasions. Smith also objects to the physicians' testimony regarding Smith's intent and to the coroner's testimony that Autumn was crying during the attack. We find no merit in Smith's assertions. The doctors' comments on weave-pattern comparisons were not elicited as expert testimony but were instead made in their capacity as lay witnesses. Their testimony was therefore admissible under Evid.R. 701, since it was based upon their visual comparison of the cushion and the marks on Autumn's face. See, e.g., State v. Jells (1990), 53 Ohio St.3d 22, 28–29, 559 N.E.2d 464 (police officer's testimony on footprint comparisons admissible as lay opinion). Furthermore, the doctors' testimony that the victim was resisting and crying and that she was intentionally killed was admissible under Evid.R. 702 and 704. Such testimony was relevant to describing the circumstances of the victim's death and was proper expert testimony on the nature of the death—i.e., that it was not accidental. Proposition of law six is overruled.

C. Irrelevant and Repetitive Testimony

In proposition of law four, Smith argues that he was denied a fair trial because the jury was exposed to repetitive and inflammatory descriptions of the victim's injuries. Thirteen witnesses, including the victim's mother, neighbors at the crime scene, police officers, attending medical personnel, and the coroner, testified about some aspect of the victim's injuries. The non-medical witnesses' testimony was relevant since it helped to explain their actions at the scene and to substantiate that Autumn was severely beaten. The testimony by medical witnesses was likewise relevant in that it was used to establish the cause of death. However, even if the testimony had been repetitive, Smith failed to object at trial, and the admission of such testimony did not result in plain error. Therefore, we overrule proposition of law four. In proposition of law nine, Smith contends that the state introduced irrelevant evidence, including testimony about the victim's height and weight, Frye's work history, and Smith's failure to pay child support and to visit his daughter. No objection was made to such testimony. Upon review of the record, we find that the testimony complained of, even if improper, was not plain error. Consequently, we overrule proposition of law nine.

D. Hearsay

In proposition of law eight, Smith contends that Frye's statements asserting that “he killed my baby” were inadmissible hearsay. Smith maintains that these statements did not fall within the excited utterance exception to the hearsay rule or to any other hearsay exception. Evid.R. 803(2), the excited utterance exception to the hearsay rule, provides: “Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” One of the requisites necessary to invoke the excited utterance exception is the declarant's “opportunity to observe personally the matters asserted in his statement or declaration.” Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140, paragraph two of the syllabus. Since Frye did not personally observe appellant kill her daughter, her statements do not satisfy this requirement. However, even if erroneous, we find that this constitutes harmless error.

IV. Prosecutorial Misconduct

In proposition of law three, Smith alleges several instances of prosecutorial misconduct. The test for prosecutorial misconduct is whether the remarks made were improper and, if so, whether the rights of the accused were materially prejudiced. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 470 N.E.2d 883. Unless otherwise noted, the defense did not object to the purported acts of prosecutorial misconduct and thus waived all but plain error. State v. Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916.

First, Smith argues that the prosecutor made improper comments in his opening statement concerning the victim's physical appearance at birth (her height, weight, and hair and eye color) as well as information concerning Frye's life history. According to Smith, these comments constitute inappropriate victim-impact evidence. However, since the testimony merely elicited background information and was “not overly emotional or directed to the penalty to be imposed” ( State v. Reynolds [1998], 80 Ohio St.3d 670, 679, 687 N.E.2d 1358), the remarks do not constitute plain error. See, also, State v. Goodwin (1999), 84 Ohio St.3d 331, 339, 703 N.E.2d 1251. Second, Smith claims error in the prosecutor's reference to him in opening statement as a “baby murderer” and a “baby molester.” We have upheld similar remarks as “fair comment.” See, e.g., Nields, 93 Ohio St.3d at 37, 752 N.E.2d 859, where the prosecutor referred to the defendant as a “mean-spirited derelict.” Thus, since the evidence supports such characterization, we find no reversible error stemming from such remarks. Third, Smith argues that the prosecution asked leading questions of numerous witnesses and vouched for Frye's testimony by telling her she was doing a good job. Although there were in fact some leading questions, none of these questions resulted in prejudice to Smith. With respect to the prosecutor's comment to Frye, when read in context, it is clear that the prosecutor was simply reassuring Frye in the midst of her difficult testimony. Neither of these circumstances constitutes prosecutorial misconduct.

Smith next argues that the prosecutor improperly impeached the credibility of defense witness Kathy Foster during another defense witness's testimony. The prosecutor was merely pointing out inconsistencies in her testimony, which was proper cross-examination under Evid.R. 611(B). Smith also contends that it was wrong for the prosecutor to cross-examine defense witness Theresa Sauders about irrelevant issues such as whether Smith paid child support or visited his daughter and to cross-examine his sister, Karen Samples, about why she allowed Smith to watch her child, knowing that he consumed large amounts of alcohol. Defense counsel introduced these topics when Sauders testified on direct examination that Smith was a good father who took care of his daughter and when the witnesses testified that Smith babysat their children.

Smith next argues that prosecutorial misconduct occurred when the head and leg of a CPR doll came off as the coroner demonstrated the way in which the young victim was injured. No objection was made at the time of the incident, but defense counsel later moved for a mistrial, which the court denied. The record reflects that the incident was accidental and that the prosecutor in no way tried to inflame the passions of the jury. Cf. State v. Keenan (1993), 66 Ohio St.3d 402, 408, 613 N.E.2d 203 (stabbing knife into counsel's table). As the trial court noted, “the jury could clearly see the witness was embarrassed when the things fell off the baby, the mechanical dummy, and it is true that several of them were laughing audibly, so again, I don't think it inflamed them in any way. So it is sort of a klutz-type move.”

Smith also claims several instances of misconduct in the prosecutor's closing argument. We have reviewed each alleged instance and find that even where the comments were improper, they do not result in plain error. For instance, Smith claims misconduct when the prosecutor stated that the victim is “actually speaking to you through the evidence in the case. * * * Autumn Carter, she's crying out to you.” These comments, although emotional, were used to tie together the forensic evidence presented during trial that pertained to the victim, such as the clumps of her hair found on the coffee table, bloodstains discovered on the sofa, and diaper fabric found on the floor. Moreover, these comments fall within the wide latitude allowed by a prosecutor in closing argument. See State v. Bies (1996), 74 Ohio St.3d 320, 326, 658 N.E.2d 754. Furthermore, although the prosecutor's comment that Smith “gets joy or gets happiness out of molesting, raping a six-month old baby” is harsh, it was a comment addressing the sexual-motivation specification. Even if this comment is deemed improper, it does not represent plain error.

Smith also objects to the prosecutor's characterization of the crime as being a ten-to-thirty-minute beating. However, this characterization was not improper given the fact that Dr. Platt testified that the attack lasted this long. Smith also believes the prosecutor's statement that “Steven Smith, seated right over there next to his counsel” was prejudicial because it was used to denigrate him and his trial counsel. Likewise, Smith objects to the prosecutor's question, which asked, “Did he claim accident, that he didn't do this on purpose?” Smith believes the prosecutor was commenting on his failure to testify. Smith takes these remarks out of context. The prosecutor was merely pointing out the defendant to the jury as a means of emphasizing that it was he who committed these heinous crimes. Moreover, the prosecutor was not commenting on Smith's failure to testify but was instead showing how the evidence supports the fact that he purposely committed the crimes in question.

Smith next asserts that the prosecutor impermissibly argued “prior calculation and design” because they were not elements of the offenses charged. However, the jury was not misled by these remarks, since the prosecutor informed them that “prior calculation and design” were not issues in the case. Smith also objects to the prosecutor's suggestion that he was motivated by revenge when he committed the crimes in question. Although a prosecutor is “entitled to latitude as to what the evidence has shown and what inferences can reasonably be drawn from the evidence” ( State v. Smith [1997], 80 Ohio St.3d 89, 111, 684 N.E.2d 668), the prosecutor's revenge theory is a stretch, particularly given the fact that Frye herself testified that Smith was not upset when he did not ejaculate during sex. Nevertheless, even if these remarks were improper, they did not affect the fairness of the trial and are not plain error. Smith also claims prosecutorial misconduct occurred when the prosecutor told the jury there would be no instruction on intoxication. However, we find it was permissible for the prosecutor to point out to the jury that the evidence did not warrant such an instruction.

Smith also claims several instances of prosecutorial misconduct during the penalty phase. Upon review of the record, we find that no prosecutorial misconduct occurred that would have affected the fairness of the trial. First, Smith contends that the prosecutor's opening statement improperly shifted the burden of proof by stating “that there can be no mitigating facts which outweigh the aggravating circumstances.” Second, Smith argues that the prosecutor treated the nature and circumstances of the offense as an aggravating circumstance. While these statements were improper, the court's instructions as to the proper weighing process and its charge as to the precise aggravating circumstances cure any error. See State v. Stojetz (1999), 84 Ohio St.3d 452, 465, 705 N.E.2d 329; State v. Hill (1996), 75 Ohio St.3d 195, 202, 661 N.E.2d 1068. Third, Smith contends that the prosecutor committed misconduct by comparing him to others who have below-average intelligence and are alcoholics but who do not commit crimes of this magnitude. Such comment is fair rebuttal to defense claims that the jury should consider Smith's intellectual impairment and alcoholism as significant mitigating factors. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 178. Finally, Smith argues that the prosecutor offered his personal opinion by stating that the imposition of the death penalty is “the right decision” to make. While this does convey the prosecutor's personal opinion, the remark was an isolated comment that does not reach the level of plain error. Donnelly v. DeChristoforo (1974), 416 U.S. 637, 646–647, 94 S.Ct. 1868, 40 L.Ed.2d 431. We overrule proposition of law three.

V. Ineffective Assistance of Counsel

In proposition of law ten, Smith claims that he received ineffective assistance of counsel. In order to prevail on this claim, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense so that defendant was deprived of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.

Smith first complains that trial counsel was deficient by failing to properly request a penalty-phase jury instruction that complies with Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030. In proposition of law five, we found that no plain error arose from the instruction given. Thus, this argument lacks merit. Smith next argues that counsel was ineffective by agreeing to readmit all trial evidence during the penalty phase. In particular, Smith contends that certain evidence was irrelevant, such as the photographs and autopsy slides of the victim, certain testimony of emergency personnel, and medical testimony concerning the cause of death. Under Evid.R. 401, this evidence was relevant since it pertains to the nature and circumstances of the aggravating circumstances. State v. Jackson (2001), 92 Ohio St.3d 436, 447, 751 N.E.2d 946. Moreover, our independent sentence reassessment can cure any prejudice stemming from the readmission of this evidence. Smith also contends that his trial counsel's reference to certain irrelevant mitigating factors (victim inducement, victim provocation) during his opening statement in the penalty phase constituted ineffective assistance of counsel. Upon review of the record, it is clear that while counsel initially recited all of the statutory mitigating factors, he later focused in on those relevant factors in his closing. This does not render counsel ineffective. See State v. Durr (1991), 58 Ohio St.3d 86, 97, 568 N.E.2d 674. Smith further claims ineffective assistance by pointing to several instances where trial counsel failed to object to prejudicial evidence, improper jury instructions, judicial misconduct, and prosecutorial misconduct. Upon review, we find that none of these allegations, even if deficient, resulted in prejudicial error depriving Smith of a fair trial. Accordingly, we overrule proposition of law ten.

VI. Sentencing Issues

A. Victim-Impact Evidence

In proposition of law 15, Smith contends that the trial court committed reversible error by considering victim-impact evidence during sentencing. Prior to sentencing but after receiving the jury's recommendation, the trial court stated that it had received and considered a letter from the victim's father. In addition, the trial court allowed Frye to make a statement where she expressed her hatred toward Smith and her hope that he would be tortured and killed just as her daughter was killed. Because no objections were made to this victim-impact evidence, it must be examined under the plain-error standard. Reynolds (1998), 80 Ohio St.3d at 679, 687 N.E.2d 1358. Victim-impact evidence is permitted where it elicits the effect that the victim's death has had on family members. State v. Fautenberry (1995), 72 Ohio St.3d 435, 439, 650 N.E.2d 878. However, victim-impact evidence that expresses an opinion as to the appropriate sentence to be imposed is inappropriate. Id. Frye's opinion that Smith should receive the death penalty was improper victim-impact evidence. Nonetheless, the admission of these statements did not constitute outcome-determinative plain error. Nor does the sentencing opinion show that the trial court considered these statements when sentencing Smith. We overrule proposition of law 15.

B. Sentencing Opinion

In proposition of law 17, Smith argues that the trial court in its sentencing opinion failed to give sufficient weight to his long history of alcohol abuse. The weight, if any, to be given a mitigating factor is within the trial court's discretion. State v. Fox (1994), 69 Ohio St.3d 183, 193, 631 N.E.2d 124. The statute does not require that significant weight be afforded a defendant's alcohol abuse. Reynolds, 80 Ohio St.3d at 685, 687 N.E.2d 1358. The trial court did not abuse its discretion by failing to give substantial weight to this factor. Moreover, any error in the trial court's sentencing opinion may be cured by this court's independent review of Smith's death sentence. State v. Lott (1990), 51 Ohio St.3d 160, 171–172, 555 N.E.2d 293. We overrule proposition of law 17.

VII. Independent Sentence Review

Having considered Smith's propositions of law, we must now independently review the death sentence for appropriateness and proportionality.

A. Evidence at Penalty Hearing

In mitigation, five witnesses testified. Jane Mosier, Smith's mother, testified that Smith was the second of four children. Mosier said that Smith's biological father, William Haught, had no contact with him while he was growing up. Mosier later married an abusive man who drank, used drugs, and threatened to burn their house down. Mosier then married Kale Mosier, a “decent guy” whom Smith called dad. He died in 1998. Mosier described Smith as a “good boy” who “loved school,” “loved to work,” and got along with everybody. She said that Smith left home at seventeen to live and work on a farm. She was first aware that Smith had a drinking problem after he had obtained his driver's license and was convicted of drunk driving. Mosier has had little contact with Smith and for the last couple of years has seen him only once or twice a year.

Smith's first cousin, Judy Ann Rigsby, grew up with Smith. Rigsby testified that Mosier's first husband physically beat Smith by whipping him with a belt. She also stated that Kale Mosier was a “very nice man” who took care of Smith. Rigsby further stated that Smith's grandmother was his primary caregiver and that she had always been there for him. She described Smith as an average student. She never observed Smith using alcohol but heard about it from other people. Karen Sue Samples, Smith's sister, testified that Smith received little attention while growing up and that he started drinking alcohol at age nine or ten. She described Smith as a “good boy” who would not hurt anyone. She said the only problem he had was drinking. Samples asked the jury to spare her brother's life. Sergeant Helen Johnson, a corrections officer, testified that Smith committed two minor violations of inmate rules since being incarcerated. Otherwise, she stated that he was respectful towards correction officers.

Dr. Janice Ort, a clinical psychologist, interviewed and conducted psychological testing on Smith. Ort found that as a youth, both of his parents were absent from his life. Although his grandmother and aunt helped care for him, they were not a significant, continuous presence. Ort described Smith as an average student in high school who ranked 149 out of 162 students. Ort further noted that Smith's judgment was impaired by alcohol and that he was alcohol-dependent, probably in the middle to late stages of alcoholism. With respect to the crimes charged, Smith told Ort that he had no memory of what transpired other than that he had fallen asleep on the couch, had found Autumn asleep in the swing, and had wondered when he awoke how and why she was there.

The test results placed Smith's IQ of 80 in the low-average range of intelligence. In addition, Smith scored low on the information and vocabulary subjects of the Wechsler Adult Intelligence Scale Revised but did fine on basic arithmetic. He also scored low on tests measuring his social skills. The results of the Minnesota Multiphasic Personality Inventory 2 (“MMPI 2”) test were within normal limits, although results indicated possible problems with depression, alcohol abuse, and sensitivity to others. The Rorschach inkblot test indicated that Smith contains his emotions, has difficulty understanding and processing information, and has possible trouble with impulse control. Ort diagnosed Smith with a dysthymic disorder and substance abuse.

B. Sentence Evaluation

After independent assessment, the evidence proves beyond a reasonable doubt the aggravating circumstances charged against Smith. The jury found and the evidence demonstrates that Smith purposely killed Autumn Carter, a child under 13 years of age (R.C. 2929.04[A][9] ), while committing or attempting to commit rape (R.C. 2929.04[A][7] ).

We find nothing in the nature and circumstances of the offense to be mitigating. For ten to thirty minutes, Smith brutally raped and murdered Autumn Carter while her mother was asleep in the apartment. The violent nature of the attack was demonstrated by the fact that Autumn's hair was ripped out, her vagina and anus were seriously damaged, she was suffocated by the weight of Smith on her small body, and she suffered subarachnoid and retinal hemorrhages. This crime is nothing less than a horrific, senseless murder committed against a small, defenseless, six-month-old baby.

Smith's history and background provide only modest mitigating value. He was raised by a mother who paid little attention to his well-being, and he had little contact with his biological father. In addition, his mother's first husband was abusive. However, his stepfather, Kale Mosier, and his grandmother were positive influences in his life. Smith's use of alcohol provides little, if any, mitigation. The evidence showed that Smith was aware of what he was being accused of and that while emergency personnel were tending to the victim, Smith was coherent enough to hide physical evidence (including beer cans, a torn baby diaper, and a shirt) in a trash dumpster outside the building. Thus, we find that the use of alcohol by Smith should have little impact on the weighing process. See State v. Slagle (1992), 65 Ohio St.3d 597, 614, 605 N.E.2d 916.

Of the statutory mitigating factors, only R.C. 2929.04(B)(5) and (B)(7) are slightly applicable. The R.C. 2929.04(B)(5) mitigating factor, lack of a significant criminal record, is entitled to some weight, since Smith's criminal record consists of two DUI convictions and arrests for minor offenses. Under R.C. 2929.04(B)(7), other relevant factors, Dr. Ort testified that Smith suffers from a dysthymic disorder, a personality disorder, and alcoholism. She also said that alcohol had permanently impaired his judgment. Nevertheless, upon independent weighing, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The death penalty in this case is appropriate when compared to other rape cases, both of which involved victims over the age of 13. See State v. Mason (1998), 82 Ohio St.3d 144, 694 N.E.2d 932; State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112.

Accordingly, we affirm Smith's convictions and sentence of death. Judgment affirmed. MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and COOK, JJ., concur. LUNDBERG STRATTON, J., concurs and concurs separately.

LUNDBERG STRATTON, J., concurring.

While I agree with the majority's judgment affirming the convictions and sentence of death in this case, I disagree with the majority's resolution of the Evid.R. 803 issue. Generally, out-of-court statements offered to prove the truth of the matter asserted are inadmissible hearsay. Evid.R. 801(C) and 802. However, Evid.R. 803 provides numerous exceptions to the hearsay rule: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness. “ * * * “(2) Excited utterance “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Such a statement is admissible despite its hearsay nature if the following four conditions are satisfied: “ ‘(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, “ ‘(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, “ ‘(c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and “ ‘(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.’ ” (Emphasis added in part.) State v. Wallace (1988), 37 Ohio St.3d 87, 89, 524 N.E.2d 466, quoting Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140, paragraph two of the syllabus.

The majority concludes that since Frye did not personally observe Smith kill Autumn, Frye's statement does not satisfy this last requirement. I respectfully disagree. When Frye went to bed that evening around 11:00 p.m., her daughter Autumn, the victim in this case, was asleep in her crib in her own bedroom, wearing pajamas. Smith was downstairs, drinking beer and watching TV when Frye went to bed. At 3:22 a.m., Smith woke Frye by saying, “I'm laying the baby down beside you.” Frye picked up Autumn, and Autumn's head fell over Frye's arm. Frye then put her hand on Autumn's stomach and found that Autumn was not breathing. Frye said to Smith, “[You] killed my baby.” Smith replied, “No, I didn't,” and threw an alarm clock into the closet. Smith then picked up Autumn, and said that Autumn was breathing and not dead. Frye also noticed that both Smith and Autumn were totally naked.

Although Frye did not actually see Smith rape and kill her child, when Frye went to bed, Smith was the only one in the house with the baby who could have inflicted the injuries sustained. When Frye awoke, Smith was the one standing next to the bed with the lifeless baby. In addition, while the two were fully clothed at the time that Frye had gone to bed, both Smith and the baby were naked when Frye awoke to this nightmare. I would therefore find that Frye's statement, “[You] killed my baby,” falls under the excited utterance exception to the hearsay rule. Frye's waking to find her child dead was an occurrence startling enough to produce a nervous excitement in Frye. The statement was made contemporaneous with the event and related to the startling occurrence. Frye personally had observed Autumn sleeping in her crib in her pajamas at 11:00 p.m. and awoke at 3:22 a.m. to find the naked Smith standing beside the bed on which Autumn's limp, naked body lay. I would find that under these facts, Frye personally observed the matters asserted in her statement as required by Evid.R. 803(2).

Although the majority finds error in the admission of Frye's statement, the majority concludes, nonetheless, that the error was harmless. Therefore, while I disagree with the majority's rationale regarding the excited utterance, because I agree with the majority's ultimate resolution of this issue and because I would otherwise affirm the convictions and sentence of death, I concur.

APPENDIX

“Proposition of Law No. I: When a trial court refuses to instruct on relevant issues and makes improper suggestions in instructions given, a capital defendant is deprived of his rights to due process, a fair trial, and reliable determination of his guilt. Moreover, the refusal to instruct also deprives the defendant of his right to present a meaningful defense. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. I §§ 5, 16.

“Proposition of Law No. II: The admission of shocking and graphic photographs and slides into evidence at both phases of a capital trial violates the defendant's right to due process when the probative value of the slides and photographs is outweighed by the danger of prejudice to the defendant, and the slides and photographs are cumulative of other evidence and repetitive of other photographs. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

“Proposition of Law No. III: A capital defendant is denied his substantive and procedural due process rights to a fair trial when a prosecutor commits acts of misconduct during the trial and the sentencing phases of his capital trial. He is also denied his right to reliable sentencing. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I §§ 9, 16.

“Proposition of Law No. IV: Where inflammatory, repetitive evidence is admitted into evidence a capital defendant is denied his rights to a fair trial, due process and a reliable determination of his guilt and sentence. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I §§ 10, 16.

“Proposition of Law No. V: Instruction that a jury verdict must be unanimous as to a life sentence is contrary to O.R.C. § 2929.03(D)(2). Instruction that a jury verdict must be unanimous as to a life sentence misleads the jury as to its fundamental role in Ohio's capital sentencing scheme in violation of the Cruel and Unusual Punishment Clause and the Due Process Clause. U.S. Const. Amends VIII, XIV; Ohio Const. Art. I, §§ 9, 16.

“Proposition of Law No. VI: A capital appellant's right to due process is violated when the trial court admits improper expert testimony. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

“Proposition of Law No. VII: A capital appellant's right to due process is violated when the trial court admits improper lay opinion.

“Proposition of Law No. VIII: The accused's rights to confrontation and due process are violated when the state offers hearsay testimony on the ultimate issue of fact in a capital murder case and the out of court declarant did not personally observe the matter to which the witness testified. U.S. Const. Amends. XI, XIV; Ohio Const. Art. I, §§ 10, 16.

“Proposition of Law No. IX: Admission of irrelevant evidence during a capital defendant's trial deprives him of a fair trial and due process. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.

“Proposition of Law No. X: The accused's right to effective assistance of counsel is violated when counsel's performance is deficient and the accused is thereby prejudiced. U.S. Const. Amends. VI, XIV; Ohio Const. Art I, § 10.

“Proposition of Law No. XI: Steven Smith's sentence of death is inappropriate. His difficult childhood, history of alcoholism, intoxication at the time of the offense, as well as depression and limited intellectual capacity all favor a life sentence.

“Proposition of Law No. XII: The service of a juror at the penalty phase who is biased in favor of the death penalty violates a capital defendant's right to due process. U.S. Const. Amend. XIV; Ohio Const. Art. I § 16.

“Proposition of Law No. XIII: Where the trial court fails to instruct on an essential element of two aggravating circumstances that make the accused death eligible, a capital defendant is deprived of his rights to a jury trial, to due process, and to a reliable capital sentencing hearing. U.S. Const. Amends. VI, VIII, XIV; Ohio Const. Art. I §§ 5, 9, 16.

“Proposition of Law No. XIV: A capital defendant's right against cruel and unusual punishment and the defendant's right to due process are violated when the trial court implies that mitigating evidence deserves no weight. U.S. Const. Amends VIII and XIV; Ohio Const. Art. I §§ 9, 16.

“Proposition of Law No. XV: It is constitutional error for the trial court to consider victim impact evidence in capital sentencing in the form of an opinion by a victim's family member about the proper punishment for the defendant. U.S. Const. Amends. VIII and XIV.

“Proposition of Law No. XVI: A capital defendant's right against cruel and unusual punishment under the Eighth and Fourteenth Amendments is denied when the sentencer is precluded from considering residual doubt of guilt as a mitigating factor. The preclusion of residual doubt from a capital sentencing proceeding also violates the defendant's due process right to rebuttal under the Fourteenth Amendment. The preclusion of residual doubt may also infringe a capital defendant's right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. U.S. Const. Amends. VI, VIII, XIV; Ohio Const. Art. I §§ 9, 10, 16.

“Proposition of Law No. XVII: A capital defendant's rights against cruel and unusual punishment and to due process are violated when the sentencing court discounts relevant mitigation because it does not create an excuse for the substantive offense of aggravated murder. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I, §§ 9, 16.

“Proposition of Law No. XVIII: Ohio's death penalty law is unconstitutional. Ohio Rev.Code Ann. §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 (Anderson 1996), do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Steven Smith. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art. I, §§ 2, 9, 10, 16. Further, Ohio's death penalty statute violates the United States' obligations under international law.

“Proposition of Law No. XIX: A capital defendant's right to due process is violated when the state is permitted to convict upon a standard of proof below proof beyond a reasonable doubt. U.S. Const. Amend. XIV.

“Proposition of Law No. XX: When the trial court ignores the express language of Ohio Rev.Code Ann. § 2929.03(D)(1) (Anderson 1993) and sua sponte orders a pre-sentence investigation report which contains prejudicial content, a capital defendant's rights to a reliable death sentence and due process of law are violated. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art. I §§ 1, 2, 5, 9, 10, 16, 20.”

Smith v. Bradshaw, 591 F.3d 517 (6th Cir. 2010). (Habeas)

Background: Following affirmance of conviction and sentence of death for raping and murdering six-month-old baby, 97 Ohio St.3d 367, 780 N.E.2d 221, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Ohio, Kathleen McDonald O'Malley, J., 2007 WL 2840379, denied the petition. Petitioner appealed.

Holdings: The Court of Appeals, Boggs, Circuit Judge, held that: (1) petitioner's claim that prosecutor improperly commented on his failure to testify was procedurally defaulted; (2) defense counsel's failure to object to prosecutor's comment was not deficient; (3) counsel's failure to object to death penalty instruction during capital murder prosecution was not deficient; (4) state court's determination that evidence would not permit a jury rationally to find defendant guilty only of involuntary manslaughter was not contrary to or an unreasonably application of clearly established federal law; and (5) petitioner's evidence of intoxication was insufficient, under Ohio law, to negate intent to kill. Affirmed. Gilman, Circuit Judge, filed concurring opinion.

BOGGS, Circuit Judge.

Steven Smith is an Ohio inmate sentenced to death for raping and murdering a six-month-old baby. We affirm the district court's denial of a writ of habeas corpus.

I. Background

On September 28, 1998, Smith was living with his girlfriend, Keysha Frye, and her two young daughters, two-year-old Ashley and six-month-old Autumn. That evening, Smith drank three beers while he, Frye, and the children visited a friend. On the way home, Smith bought a twelve-pack of beer and drank one in the car. Once back at Frye's apartment, Smith and Frye put the children to bed, then watched television and had sex. Frye went to bed around 11:00 p.m., but Smith stayed up drinking. At approximately 3:22 a.m., Smith woke Frye by placing Autumn's naked body next to her. Frye realized that Autumn was not breathing and accused Smith of killing her; Smith threw an alarm clock and said that she was not dead. Frye quickly took Autumn's body and Ashley to a neighbor's apartment, screaming that Smith had killed her baby. Smith followed, exclaiming that he “didn't do anything” and asking “why was she fucking lying,” but the neighbor did not let him in. A short while later, another neighbor observed Smith throw a trash bag in the dumpster and heard Smith say that he did not do anything and that he was leaving. This neighbor convinced Smith not to leave. When the police arrived, they saw no signs of forcible entry in Frye's apartment, and they found the television on and extremely loud. They discovered Autumn's pink baby sleeper under the coffee table and Smith's cutoffs and jeans near the couch. They also found whitish-colored material, later determined to be pieces of shredded diaper, scattered on the floor in the same area, and piles of Autumn's hair were found on the coffee table. The police also retrieved a garbage bag from the outside trash dumpster that contained a torn baby diaper, Smith's t-shirt, and ten empty beer cans. When approached by an officer, Smith preemptively exclaimed, “I didn't do it, I didn't do it”; he smelled of alcohol and swayed back and forth while speaking. At the police station, Smith told detectives that he had drunk four beers that night. He stated that he and Frye had gone to bed at midnight and that he was awakened by Frye, who was accusing him of killing Autumn. A month later, Smith changed his story, telling police that he had consumed nine beers, and that he awoke downstairs at 3:25 a.m. and, believing that something was wrong with Autumn, carried her upstairs. He also denied putting trash in the dumpster.

Smith was charged with aggravated murder for raping and killing a child under the age of thirteen. At trial, the coroner who performed the autopsy testified extensively, using autopsy photographs and slides. He explained that Autumn died from compression asphyxia and blunt trauma to the head. The injuries to her head and the abrasions on her forehead, cheek, and chin indicated that she was lying on her abdomen and that her face had been forced into a pillow. Contusions to her buttocks indicated that they were subject to pressure from the weight of another person. Other bruising and abrasions revealed that Autumn had resisted the attack. She also suffered subarachnoid and retinal hemorrhages consistent with shaken baby impact syndrome, indicating that she had been restrained, and she was missing hair from the back of her head, suggesting that the attacker had forcefully grasped it. Furthermore, her clitoris was red, her vagina was ten times the normal size for a baby her age, and there was a hemorrhage in her anus, all indicative of attempted penetration. Additionally, Autumn's blood was found on two seat cushions and on her pink sleeper. No semen was found.

Smith offered the testimony of a board-certified forensic toxicologist to support his intoxication defense. The police tested Smith's blood-alcohol level at 11:00 a.m. on September 29, approximately seven hours after he was arrested, as 0.123%. The toxicologist testified that, based on this result, Smith's blood-alcohol level would have been at least 0.36% and possibly as high as 0.60% at 11:30 p.m. on September 28. Smith also offered evidence that he drank as many as fifteen beers that night, and that he was an alcoholic who drank heavily and frequently blacked out.

The jury found Smith guilty as charged and sentenced him to death. The Ohio Supreme Court affirmed Smith's conviction and sentence on direct appeal, State v. Smith, 97 Ohio St.3d 367, 780 N.E.2d 221 (2002), and the Ohio Court of Appeals denied his petition for postconviction review. The district court denied Smith's petition for a writ of habeas corpus. Smith appeals, having received a certificate of appealability on four claims: (1) that the prosecutor improperly commented on his failure to testify; (2) that the penalty-phase jury instructions were misleading; (3) that counsel was constitutionally ineffective for failing to object to the misleading penalty instructions and for not requesting clarifying instructions; and (4) that the trial court should have instructed the jury on the lesser included offense of involuntary manslaughter.

II. Standard of Review

When a state court has “adjudicated ... the merits” of a defendant's claim, we may only grant a writ of habeas corpus if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or “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). An adjudication on the merits is contrary to clearly established Supreme Court law if, for example, the “state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An adjudication on the merits unreasonably applies Supreme Court law if, for example, “the state court identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407, 120 S.Ct. 1495. The application must be “objectively unreasonable,” not merely incorrect. Id. at 409–10, 120 S.Ct. 1495. When a state court's adjudication on the merits is either contrary to or an unreasonable application of clearly established Supreme Court precedent, we “must then resolve the claim without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

III. Prosecutorial Misconduct

Smith's first claim is that the prosecutor improperly commented on his failure to testify during the guilt phase by telling the jurors to ask themselves, “[d]id [Smith] claim accident, that he didn't do this on purpose?” See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This claim is procedurally defaulted: counsel failed to object to the comment at trial, and the state court enforced the procedural bar by reviewing the claim only for plain error. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.2000). Smith asserts that we should not enforce his default. But his claim that the state courts do not regularly enforce Ohio's contemporaneous objection rule is “squarely foreclosed” by our precedent. Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir.2007) (holding that Ohio's state courts have not “applied its contemporaneous objection rule unevenly and inconsistently” with regard to prosecutorial misconduct claims). And he cannot excuse his default through the ineffectiveness of counsel because he cannot show that counsel's failure to object to this one comment—thereby drawing attention to it—was deficient. Lundgren v. Mitchell, 440 F.3d 754, 774–75 (6th Cir.2006) (“[A]ny single failure to object [to closing arguments] usually cannot be said to have been error.... [D]efense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.”).

IV. Misleading Jury Instructions

We address Smith's second and third claims together because both relate to the penalty-phase jury instructions. Smith's second claim is that the penalty instructions violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), because they “affirmatively misled [the jury] regarding its role in the sentencing process,” Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). Under Ohio law, the jury must unanimously recommend the death penalty; thus, “a solitary juror may prevent” it. State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030, 1042 (1996). Smith contends that the instructions wrongly suggested that the jury was required to reject the death penalty unanimously, rather than to choose it unanimously.

This claim is also procedurally defaulted. Counsel did not object to the instructions as given. Smith wrongly suggests that the state court did not enforce the procedural bar because it did not discuss this claim “in terms of ‘plain error.’ ” After reviewing the several jury-instruction claims that Smith had preserved for appeal, the court stated: “As for the remaining arguments regarding jury instructions, since Smith did not raise an objection, we apply a plain-error analysis”; it then rejected, inter alia, this claim. Thus, the court enforced the procedural bar, see Seymour, 224 F.3d at 557.

Smith's third claim is that his counsel was ineffective for failing to object to the penalty instructions as misleading and for not requesting an additional instruction explicitly stating that a solitary juror could prevent the death penalty. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although the state court rejected this claim on the merits, we review it de novo because Smith also argues that it excuses the default of his second claim. See Girts v. Yanai, 501 F.3d 743, 753 (6th Cir.2007). (“[C]ounsel cannot be ineffective for a failure to raise an issue that lacks merit.”). The instructions stated: “You shall impose the death sentence only if all 12 of you unanimously find [that the death penalty is appropriate]. You shall impose one of the life imprisonment verdicts if all 12 of you do not unanimously find [that the death penalty is appropriate]” (emphasis added). This unmistakably informed the jury that the death penalty must be endorsed by every juror, and thus that one juror could prevent it. Cf. Hartman v. Bagley, 492 F.3d 347, 362–65 (6th Cir.2007) (rejecting an identical claim about the instruction, “[I]f ... you cannot unanimously agree that the [death penalty is appropriate], ... you will then [impose a life sentence]”). No other aspect of the instructions or the verdict forms undermined this clarity.

Smith's counsel was also not ineffective for failing to request an additional “solitary juror” instruction, to which Smith was entitled under Ohio law, Brooks, 661 N.E.2d at 1042. Even if Smith's counsel was deficient for failing to request the additional instruction, Smith cannot show a reasonable probability that the instruction would have led to a different outcome: the instructions as given adequately informed the jury that a single juror could prevent the death penalty, and thus an additional instruction would not have told the jury anything it did not already know.

V. Lesser–Included–Offense Instruction

Smith's final claim is that the trial court erred in refusing to instruct the jury on involuntary manslaughter. In capital cases, Beck v. Alabama requires that the jury be instructed on a noncapital lesser-included offense if, and only if, “the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” 447 U.S. 625, 635, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (internal quotation marks omitted). Beck explained that “when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the ‘third option’ of convicting of a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.” Id. at 637, 100 S.Ct. 2382.

Under Ohio law, involuntary manslaughter is a lesser included offense of aggravated murder, distinguished by the lack of intent to kill. State v. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339, 349 (1994). Smith contends that the trial court should have instructed the jury on involuntary manslaughter because, while there was overwhelming evidence that Smith raped and killed Autumn, the evidence of his voluntary intoxication would allow a rational jury to reasonably doubt whether he intended to kill her. The state court denied this claim on the merits, carefully recounting Autumn's injuries and concluding that no reasonable juror could have found that Smith did not intend to kill her, given the brutality and duration of the crime. Smith contends that the state court's decision is both contrary to and an unreasonable application of Beck. He argues that the decision is contrary to Beck because the court did not, in fact, determine whether a rational jury reasonably could have doubted his intent to kill; rather, he maintains that the court rejected his claim only because he did not provide evidence of a specific intent to molest Autumn and because the evidence was sufficient to support the verdict. This argument fails. The court noted that Smith had not provided any evidence of an intent only to molest rather than to kill. Also, Smith never admitted that he molested her. And, while the state court's opinion is not ideal, it plainly did not review the verdict only for the sufficiency of the evidence: the court properly recited Beck's rule, it relied on three cases that properly applied Beck, and its analysis is consistent with Beck. Smith has failed to rebut the “presumption that state courts know and follow the law,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).

Smith's argument that the state court unreasonably applied Beck requires more analysis, but also fails.FN1 It is well established that a lesser-included-offense instruction is not required where the facts of a murder so strongly indicate intent to kill that the jury could not rationally have a reasonable doubt as to the defendant's intent. See, e.g., Hopper v. Evans, 456 U.S. 605, 613, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (denying a Beck claim where the defendant's testimony and evidence that he shot the victim in the back during an armed robbery “affirmatively negated any claim that he did not intend to kill the victim”); Campbell v. Coyle, 260 F.3d 531, 543–44 (6th Cir.2001) (holding that the defendant's Beck claim failed because the number and location of the victim's five stab wounds “compelled a reasonable jury to find that the [defendant] possessed the intent to kill,” despite evidence of a struggle); see also Slaughter v. Parker, 450 F.3d 224, 236–38 (6th Cir.2006) (rejecting a Beck claim in the alternative because the “facts [that the victim was bludgeoned in the head and stabbed five times] foreclose the conclusion that [the defendant] acted with any mental state other than intent”); Abdus–Samad v. Bell, 420 F.3d 614, 629 (6th Cir.2005) (rejecting a Beck claim in the alternative because “[t]he fact that [the defendant] shot the victim with a pistol five to six times makes it virtually impossible to find that the killing was accidental”).

FN1. Because we reject Smith's claim on the merits, we need not decide whether harmless error review can apply to Beck claims. Compare Hogan v. Gibson, 197 F.3d 1297, 1312 n. 13 (10th Cir.1999) (holding that it does not); Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.1988) (same), overruled on other grounds as recognized by Vanderbilt v. Collins, 994 F.2d 189, 195 (5th Cir.1993), with Gerlaugh v. Stewart, 129 F.3d 1027, 1031 (9th Cir.1997) (applying Brecht's harmless error standard to a Beck claim).

This case law reflects the sensible view that, as a general matter, repeated violent conduct conclusively proves intent to kill. Autumn's death reflects such conduct: for ten to thirty minutes, Smith violently raped a six-month-old baby, during which time the baby resisted the attack and Smith forcibly subdued her by forcing her face into a pillow, ripping out her hair, shaking her, and causing deadly blunt force trauma to her head. Compared to the overwhelming proof of intent from such directed and persistent brutality, Smith's intoxication evidence, which was not connected to any testimony that he was too drunk to form any intent, does not allow a juror rationally to acquit him of aggravated murder. Cf. Palmer v. Bagley, 330 Fed.Appx. 92, 99–100 (6th Cir.2009) (concluding “that a jury could not rationally have found that [the defendant] lacked the specific intent to kill each victim” where both were shot twice in the head at close range, “execution-style,” despite the defendant's evidence that he was severely intoxicated from alcohol and LSD, that there had been a struggle, and his testimony that he did not intend to kill the victims). Therefore, we cannot say the state court's decision was unreasonable.

Smith's case may be compared usefully with the cases cited in the previous two paragraphs. Smith's fundamental claim is that a jury could reasonably make the leap from his obvious intoxication to the conclusion that he did not intend to kill Autumn Frye. And, it is certainly not physically or logically impossible that he did not harbor such an intent, because the ultimate fact of intent can only be inferred, rather than ever known. However, what Smith seeks from a jury would be a leap of faith, not an inferential leap based on evidence. We note that Smith did not contend, through his own testimony or any other type of circumstantial evidence, that he intended only molestation, but not killing. His basic position was always that no molestation occurred. In the cases cited above, it was equally true that it was not physically or logically impossible that there was no intent to kill. In Hopper, it was not impossible that a gunman firing a shot that struck the victim in the back intended only to frighten or wound. In Campbell, it was not physically impossible that an assailant in a struggle might strike five wounds in the chest while intending only to disable but, as Judge Gilman's opinion there ably showed, a conclusion need not be impossible to be unreasonable. 260 F.3d at 543–44. Similarly, the wounds delivered in Slaughter and in Abdus–Samad could in principle have been inflicted by a flailing assailant intending only minatory action, but there was no evidence that this theoretically possible situation occurred, just as in our case there is no evidence from which a jury could reasonably draw the conclusion that Smith intended some outrage, but not killing. In particular, the evidence showed not only simple asphyxiation, which might in theory have been caused only by Smith's weight pressing on the baby in the course of a rape. Instead, the evidence directly showed blunt trauma to the head and shaken baby impact syndrome, indicative of lethal force purposefully applied.

And even if the state court's analysis under Beck were unreasonable, we would analyze Smith's claim under de novo review, Panetti, 551 U.S. at 953, 127 S.Ct. 2842, and reject it because his evidence of intoxication was insufficient as a matter of state law to negate intent to kill. A lesser-included-offense instruction is required only where “the facts of the case and the laws of the State warrant such an instruction.” Hill v. Black, 920 F.2d 249, 251 (5th Cir.1990) (emphasis added); cf. Hopkins v. Reeves, 524 U.S. 88, 95–99, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998) (holding that Beck requires instruction only on crimes that are lesser included offenses under state law); Spaziano v. Florida, 468 U.S. 447, 456–57, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (holding that a lesser-included-offense instruction was not required when the lesser offense's state-law statute of limitations had run). Under Montana v. Egelhoff, states may regulate when—or if—evidence of voluntary intoxication can negate specific intent. 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). We agree with our apparently unanimous sister circuits that, given Egelhoff, Beck claims based on voluntary intoxication that negates intent will fail unless the evidence of intoxication satisfies the state law requirements for negating intent. See, e.g., Spears v. Mullin, 343 F.3d 1215, 1244–45 (10th Cir.2003) (applying Oklahoma's rule that the defendant must be “so intoxicated that his mental abilities were overcome or that the intoxication prevented him from acting with malice”); Skipper v. Lee, 238 F.3d 414 (Table), 2000 WL 1853330, at *5 (4th Cir.2000) (applying North Carolina's rule that the defendant must produce “substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill”); Goodwin v. Johnson, 132 F.3d 162, 191–92 (5th Cir.1997) (holding that “the laws of [Texas] foreclose our finding a Beck violation on the basis [of] evidence of [the defendant's] voluntary intoxication” because Texas does not allow voluntary intoxication to negate intent); Clabourne v. Lewis, 64 F.3d 1373, 1379–81 (9th Cir.1995) (explaining that in evaluating Beck claims based on intoxication, the court must “first consider whether Arizona recognizes intoxication as a defense to the premeditation element of first-degree murder”).

At the time of Smith's conviction, Ohio law allowed voluntary intoxication to “create a reasonable doubt as to” the defendant's intent to kill “[o]nly where the defendant was so intoxicated as to be mentally unable to intend anything.” FN2 State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 720 (1996). Thus, even belief in a claim (not made here) that Smith only intended rape, but not murder, would not justify the instruction. The state court rejected Smith's request for a voluntary-intoxication instruction, concluding that the evidence demonstrated that he could “intend [some]thing” at the time of the murder. Smith's claim that this holding was error was not certified for appeal, and the state court's holding therefore forecloses his Beck claim: as a matter of state law, Smith's intoxication evidence could not create a reasonable doubt as to his intent to kill. FN2. Effective October 2000, Ohio eliminated voluntary intoxication as a defense to specific intent. See Ohio Rev.Code § 2901.21(C) ( “Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense.”).

Nonetheless, we note our agreement with the state court's conclusion. As we explained above, the facts of the crime demonstrate that Smith could “intend [some]thing.” So do his actions immediately before and after the murder. Smith apparently was aware enough to: turn up the volume on the television to drown out Autumn's cries; remove her baby sleeper and tear apart her diaper; carry her body upstairs to her mother; have conversations with the neighbors and the police, and deny responsibility for her death repeatedly; and clean up the evidence of the murder and throw it away. These are not the aimless and uncontrolled actions of an individual incapable of “intend[ing] anything.” Cf. Otte, 660 N.E.2d at 720–21 (finding that the defendant was not “so intoxicated as to be mentally unable to intend anything” because, inter alia, he turned up the volume of the television to drown out the victims' cries, he shot them in the head, and he left the crime scene); State v. Tillman, 2000 WL 1682, at *3 (Ohio App. Dec. 20, 1999) (rejecting a request for voluntary-intoxication instructions where the defendant was able to ride a bike and “complet[e] the physical acts necessary for his part in getting aboard and absconding with [the victim's] vehicle,” and where the defendant's assault of the victim indicated “the cognitive wherewithal to understand that the vehicle's owner stood as an impediment to getting away with the crime”); State v. Adkins, 1997 WL 66763, at *3 (Ohio App. Feb.11, 1997) (rejecting a request for voluntary-intoxication instructions because, although the defendant was too intoxicated to give a statement to police upon arrest, he had been able to drive a car, have a conversation, and retrieve a gun before the murder).

VI. Conclusion

We AFFIRM the district court's denial of habeas relief.

RONALD LEE GILMAN, Circuit Judge, concurring.

I concur in Parts III (prosecutorial misconduct) and IV (misleading jury instructions) of the lead opinion without reservation. Because Ohio state law at the time of Smith's conviction severely restricted the consideration of his intoxication evidence to the point of rendering it unhelpful to Smith, I also reluctantly join in Part V (the lesser-included-offense instruction). But I write separately to express my concerns regarding the Ohio Supreme Court's analysis of the issue of the lesser-included-offense jury instruction under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the Supreme Court held that the death penalty may not be imposed where the jury is “not permitted to consider a verdict of guilt of a lesser included non-capital offense, and [where] the evidence would have supported such a verdict.” 447 U.S. at 627, 100 S.Ct. 2382. The petitioner in that case, Gilbert Beck, participated in a robbery with an accomplice. Id. at 629–30, 100 S.Ct. 2382. Beck maintained that he never intended to kill the victim, and that his accomplice unexpectedly struck and killed the man after Beck had bound him to a chair. Id. The state charged Beck with intentional killing during the course of a robbery, and the trial judge was precluded by a state statute from instructing the jury as to the lesser-included offense of felony murder. Id. at 630, 100 S.Ct. 2382. After Beck was convicted and sentenced to death, his punishment was upheld by the Alabama Supreme Court. Id. at 632, 100 S.Ct. 2382. The United States Supreme Court reversed, identifying the need for a “procedural safeguard” that would “afford[ ] the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Id. at 633, 637, 100 S.Ct. 2382. In particular, the Court recognized that when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Id. at 637, 100 S.Ct. 2382.

Beck therefore identifies the need to provide jurors with this “third option” in order to avoid two polar-opposite results: convicting a defendant based on a “belief that the defendant is guilty of some serious crime and should be punished,” or acquitting a guilty defendant based on the belief that, “whatever his crime, the defendant does not deserve death.” Id. at 642–43, 100 S.Ct. 2382. And although both of these two outcomes are undesirable, the “fundamental concern” in Beck is “that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” Schad v. Arizona, 501 U.S. 624, 646, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). When evaluating Smith's appellate argument that he was entitled to an involuntary manslaughter instruction (which, unlike the charge of aggravated murder, does not require a showing of an intent to kill), the Ohio Supreme Court misapplied Beck in two respects. The Court first noted that, contrary to Smith's contention, “he presented no evidence at trial indicating that he intended to sexually assault, rather than kill, Autumn.” State v. Smith, 97 Ohio St.3d 367, 780 N.E.2d 221, 228 (2002). (The lead opinion echoes this assertion, stating that Smith did not present any evidence “that he intended only molestation.” (Lead Op. at 525)) Lack of proof from the defendant, however, is irrelevant under Beck because a reviewing court's analysis is limited to whether the evidence as a whole supports the giving of such an instruction. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Moreover, the defendant in a criminal case is never obligated to present any evidence. United States v. Hynes, 467 F.3d 951, 957 (6th Cir.2006) (approving the use of a jury instruction stating that the “[d]efendant has no burden to prove his innocence or to present any evidence or to testify”). The Ohio Supreme Court thus improperly implied that Smith bore the burden of providing exculpatory evidence regarding his intent, whereas Beck in fact imposes no such burden.

Second, the Ohio Supreme Court summarized Autumn's injuries and the testimony about those injuries in a scant few sentences to conclude that Smith had the intent to kill. Smith, 780 N.E.2d at 228. In doing so, the Court held that there was sufficient evidence to reach this conclusion. See id. (“Consequently, we reject Smith's argument that evidence of purpose was lacking.”). But a Beck analysis is not a sufficiency-of-the-evidence inquiry. Hyatt v. Branker, 569 F.3d 162, 174 (4th Cir.2009) (“A Beck challenge does not question whether the prosecutor presented evidence sufficient to sustain a conviction of a capital offense.”); Hogan v. Gibson, 197 F.3d 1297, 1305 (10th Cir.1999) (observing that Beck “requires a court to consider whether there is sufficient evidence to warrant instructing a jury on a lesser included offense, not whether there is sufficient evidence to warrant conviction on the greater offense”). The Ohio Supreme Court conducted no analysis to consider whether the evidence would permit a reasonable juror to find that Smith intended only to rape Autumn and not to kill her. Instead, the Court focused its attention solely on whether the evidence supported a finding that Smith intended to kill Autumn, thereby overlooking its duty to consider whether the evidence cast “some doubt” as to Smith's intent to kill. See Beck, 447 U.S. at 637, 100 S.Ct. 2382. And the evidence presented at trial, in my opinion, did exactly that. First, there was evidence that Smith was highly intoxicated, which in turn would have made him less aware of the consequences of his aggressive behavior on a six-month-old child. The proof indicates that, during the course of the evening, Smith consumed at least ten cans of beer. He had a blood-alcohol level of .123 when he was tested by the police more than seven hours after the incident. Based upon this evidence, a board-certified toxicologist testified at trial that Smith's blood-alcohol level would have been at least .36 and possibly as high as .60 shortly before midnight. Other witnesses testified that Smith was known to be a heavy drinker who had blacked out on several occasions in the past. Both Keysha Frye (Autumn's mother and Smith's girlfriend) and one of her neighbors testified that on the night of the incident and in the early morning hours the following day, Smith was “very drunk.” Moreover, officers reported that they observed Smith swaying back and forth while he was answering their questions shortly after they arrived at Frye's house. A reasonable juror could thus conclude from this evidence that Smith was too intoxicated to realize the fatal consequences of his actions.

In addition, there was no evidence to show that Smith had any motive to kill Autumn. Multiple witnesses, including Smith's sister and a former girlfriend with whom Smith had a child, testified that Smith had taken good care of children when he had been around them. Furthermore, Frye had on many occasions entrusted Smith to watch both Autumn and her two-year-old daughter, Ashley, while Frye was at work. The absence of any evidence as to why Smith would kill Autumn further calls into question the conclusion that he intended to kill her. Smith also made no effort to conceal Autumn's body after she died. Instead, Smith took Autumn's body upstairs to the bedroom he shared with Frye, and he placed Autumn's body next to Frye in the bed. Smith also denied that Autumn was dead. A reasonable juror could interpret these actions as indicating that Smith did not realize that he had killed Autumn, a conclusion that, by necessary implication, would indicate a lack of intent to kill. Finally, contrary to the Ohio Supreme Court's conclusion, Autumn's injuries are as consistent with Smith trying to keep her quiet as they are with any purported intent to take her life. Autumn suffered injuries to the side of her head and had bruising around her eyes. Dr. Marvin Platt, the coroner who performed the autopsy, testified at trial that Autumn died from asphyxia and blunt trauma to the head. Injuries to her head and abrasions on her forehead, cheek, and chin, he surmised, indicated that Autumn was lying on her stomach and that her face had been forced into a pillow. He also observed that Autumn suffered subarachnoid and retinal hemorrhages consistent with shaken-baby syndrome, which indicated that an effort had been made to restrain Autumn. Although one interpretation of this testimony is that Smith deliberately suffocated Autumn in a pillow, another reasonable interpretation is that Smith unintentionally crushed Autumn with the weight of his body and caused her asphyxiation during the course of the rape. The nature of Autumn's injuries thus do not necessitate a finding of deliberate intent to kill on the part of Smith.

I find particularly significant the fact that the jurors grappled with the issue of intent following the close of the evidence. During the penalty phase, the jury submitted the following question to the court: “If we feel [Smith] was not in his right mind, is that reason enough alone not to give him a death sentence according to the law”? This question indicates that the jurors, based on their weighing of the evidence presented at trial, had doubts as to whether Smith had the mental capacity to develop the intent to kill Autumn at the time of the rape. The lead opinion declines to view the evidence from this perspective, asserting that the facts of Autumn's murder “conclusively proves intent to kill” so as to preclude any juror's reasonable doubt as to Smith's intent. (Lead Op. at 524) But the cases that the lead opinion relies upon to support that assertion all present scenarios markedly different from the circumstances in the instant case. In Hopper v. Evans, 456 U.S. 605, 613, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), for example, the petitioner admitted to shooting the victim in the back during the course of an armed robbery. The petitioner in Campbell v. Coyle, 260 F.3d 531, 535, 543 (6th Cir.2001), stabbed his victim with a knife at least four times. Similarly, in Slaughter v. Parker, 450 F.3d 224, 237–38 (6th Cir.2006), the petitioner bludgeoned the victim in the head and stabbed her five times in the chest, “including a stab wound that penetrated five inches into her chest and pierced her heart.” (Citation omitted.) And in Abdus–Samad v. Bell, 420 F.3d 614, 629 (6th Cir.2005), the petitioner shot the victim five or six times. The above scenarios stand in sharp contrast to the circumstances of the present case, where there is no evidence conclusively demonstrating an intent to kill, such as repeated stabbings or shootings. There is in fact no indication that Smith used a weapon of any kind, unlike the petitioners in the cases relied upon by the lead opinion. In sum, I believe there is “some doubt,” see Beck, 447 U.S. at 637, 100 S.Ct. 2382, of Smith's intent to kill Autumn in light of his extreme intoxication, his lack of motive to kill Autumn, his taking Autumn's body to Frye after the incident, and the nature of Autumn's injuries.

Unfortunately for Smith, however, the above analysis is insufficient to grant Smith habeas relief because, as the lead opinion correctly notes, Ohio law at the time of his conviction effectively precluded Smith from relying on evidence of his intoxication to support the argument that he intended only to rape, and not kill, Autumn. See State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 720 (1996) (permitting a defendant to raise a voluntary-intoxication defense “only where the defendant was so intoxicated as to be mentally unable to intend anything” and thus “create a reasonable doubt as to his ability to form the specific intent essential to the charged felony.” (citation and internal quotation marks omitted)). The facts before us demonstrate that Smith, despite his intoxication, clearly intended something of a criminal nature. (Indeed, Smith concedes on appeal that he intended to rape Autumn.) And, as noted by the lead opinion, the Supreme Court has upheld similar state-law interpretations against due process challenges. See Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (holding that a Montana statute providing that voluntary intoxication could not be considered when determining a defendant's mental state did not violate due process); see also Goodwin v. Johnson, 132 F.3d 162, 191 (5th Cir.1997) (holding that, in light of Egelhoff, “the laws of the state foreclose our finding a Beck violation on the basis that evidence of Goodwin's voluntary intoxication could have allowed a reasonable jury to convict him of the lesser-included offense of murder”).

Without Smith's intoxication argument—the strongest, in my opinion, demonstrating his lack of intent to kill—the remaining evidence would not permit a reasonable juror to find that Smith intended only to rape Autumn. Therefore, despite my disagreement with the Ohio Supreme Court's analysis, I concur with the lead opinion's conclusion that Smith is not entitled to habeas relief.