Summary:

Wilson killed Lutz after she drove him home from a bar in Elyria. Somehow — Wilson said he didn't know how — Lutz ended up in the trunk of her black Oldsmobile Cutlass after they left the bar and went to Wilson's house. Wilson let Lutz out briefly after she begged to use the restroom, but forced her back into the trunk even though she promised to forget the ordeal if he ran away. Wilson then set the punctured gas tank on fire and walked off while Lutz burned to death. Wilson claimed he was too intoxicated to remember all the details, but told police he remembered this much.

Citations:

Wilson v. Strickland, Slip Copy, 2009 WL 1477248 (6th Cir. 2009) (Sec. 1983 Stay)
Wilson v. Mitchell, 498 F.3d 491 (6th Cir. 2007) (Habeas)
State v. Wilson, 74 Ohio St.3d 381, 659 N.E.2d 292 (Ohio 1996). (Direct Appeal)

Final/Special Meal:

A well-done porter house steak with steak sauce, a baked potato with sour cream and bacon bits, salad with lettuce, cucumbers, tomatoes, radishes, green peppers, carrots and French dressing, corn on the cob with butter, grapes, macaroni and cheese, dinner rolls and Cool Ranch Doritos with a jar of salsa, strawberry ice cream and strawberry cheesecake--both with real strawberries, a 2-liter of Dr. Pepper with ice and one tea bag.

Final Words:

"I want to say to the Lutz family that I'm very sorry for what I did to Carol. I want to say to my family that I'm sorry for how things turned out. I love you. I believe in Jesus. He's my Lord and Savior. I'm going home. . ."

ClarkProsecutor.org

Ohio Department of Rehabilitation and Correction

Inmate#: OSP #A260-074
Inmate: DANIEL E. WILSON
DOB: September 10, 1969
County of Conviction: Lorain County
Date of Offense: 05-04-91
Date of Sentencing: 05-08-92
Presiding Judge: Lynett McGough
Prosecuting Attorney: Gregory A. White
Gender: Male
Race: White
Institution: Southern Ohio Correctional Facility
Convictions: Count 1: Aggravated Murder (Death), Count 4: Kidnapping (10-25 yrs), Count 5: Aggravated Arson (10-25 yrs)

Ohio executes man who burned woman alive

ToledoBlade.com

AP - June 03, 2009

LUCASVILLE, Ohio — A man who burned a woman alive in the trunk of her car was executed on Wednesday in Ohio's first death by lethal injection since the state revised its protocol on the procedure. Daniel Wilson, 39, was sentenced to death for the 1991 slaying of acquaintance Carol Lutz, 24. He locked Lutz in the trunk of her car and set it on fire after they spent several hours drinking together at a bar near Cleveland.

"I'm very sorry for what I did to Carol, and to my family, I'm sorry things turned out this way," Wilson said in a final statement. "I believe in Jesus. He's my lord and savior, and I'm coming home." He was pronounced dead at 10:33 a.m. at the Southern Ohio Correctional Facility.

Carol Lutz's mother, Martha Lutz, said the execution ended a long, hard road for her family. "We have waited 18 years 29 days for this to happen. It finally has come and we thank God," she said, standing with her husband, son and daughter-in-law after the execution. "People may think we're cruel, but the cruel part of this is not being able to have Christmas with Carol ever again."

The state's revised protocol allows executioners to give an additional dose of sedative if needed to ensure an inmate is unconscious before lethal drugs are administered. Roughly nine minutes before Wilson was pronounced dead, the warden stood by his right side, shook his shoulder, pinched his arm, and called Wilson's name to make sure the sedative had taken effect before going ahead with the second drug of a three-drug procedure. It was the first Ohio execution to use that precaution.

Wilson was calm during the execution process, and family members of Lutz, as well as a witnesses for Wilson, were silent and motionless as they watched. Wilson's attorneys had sought to avoid his execution, telling the Ohio Parole Board he was beaten as a child by an alcoholic father who would handcuff him to a chair.

"There are millions of people who have rough childhoods and lives, and people don't do what he did." Martha Lutz said. "I know today his death was nothing, nothing like Carol's. There was no suffering, no pain, just him going off to sleep." Wilson was denied clemency Monday, and the U.S. Supreme Court rejected his final appeals Tuesday.

His spiritual adviser, the Rev. Neil Kookoothe, said Wilson was baptized as a Roman Catholic last week and had received communion this morning. "Dan wanted to make sure his sorrow for the Lutz family and his remorse for taking Carol's life is sincere," Kookoothe said. "He wanted people to know that."

Wilson killed Lutz after she drove him home from the bar in Elyria. Somehow — Wilson said he didn't know how — Lutz ended up in the trunk of her black Oldsmobile Cutlass after they left the bar and went to Wilson's house. Wilson let Lutz out briefly after she begged to use the restroom, but forced her back into the trunk even though she promised to forget the ordeal if he ran away. Wilson then set the punctured gas tank on fire and walked off while Lutz burned to death.

Wilson spent his final day visiting with family, friends and a priest and called his mother several times overnight. He had a special meal that included a well-done porterhouse steak, baked potato, corn on the cob, salad, strawberry cheesecake and Dr Pepper.

Wilson is the first inmate executed in Ohio since Nov. 19. Ohio has put 29 men to death since it reinstated the death penalty in 1999.

Daniel Wilson executed by lethal injection for burning Carol Lutz alive

Comment-blog.advanced.net

June 03, 2009

LUCASVILLE — Beads of sweat glistened on Daniel Wilson's brow in the dim light of the execution chamber Wednesday morning. But his face wore the calm, stoic look of resignation, as a lethal cocktail of chemicals snaked through tubes toward the shunts in his arms.

The family of Carol Lutz -- who Wilson locked in a car trunk and torched alive 18 years ago -- watched unflinchingly beyond a glass partition. Wilson's brief, composed apology hovered in the five feet that stretched between them, along with the recognition that he was about to die more peacefully, more mercifully than Lutz did.

After 17 years on death row, Wilson, 39, died by lethal injection at the Lucasville prison -- becoming the 29th person to be executed since Ohio reinstated the death penalty in 1999.

Shortly after 10 a.m., a closed-circuit monitor flickered on, displaying a bird's-eye view of prison medical technicians preparing Wilson for execution. Wilson remained motionless on the gurney for nearly 15 minutes, even as techs struggled to place a shunt in his right arm, saturating a paper towel with blood that oozed from the inmate's punctured vein. Wilson entered the death chamber at 10:16 a.m. and calmly climbed onto the gurney. As officers strapped down his shunted arms, Wilson raised his head to see his two cousins, an attorney and the Rev. Neil Kookoothe, his spiritual adviser, gathered on the other side of the glass.

Kookoothe raised a hand to comfort Wilson. At 10:20, Wilson, his eyes fixated on the ceiling, uttered his final words: "I want to say to the Lutz family that I'm very sorry for what I did to Carol. I want to say to my family that I'm sorry for how things turned out. I love you. I believe in Jesus. He's my Lord and savior. I'm going home." Wilson's eyes fluttered closed, as a dose of the sedative sodium pentothal took hold. His chest and stomach heaved several times and his breathing became erratic, then gradually more shallow with each inhalation.

Prison Warden Phillip Kerns called Wilson's name and pinched his arm -- part of the prison's new procedure to test for unconsciousness before administering the final two drugs that stop breathing and heartbeat. The lethal chemicals that followed -- pancuronium bromide to seize the lungs and potassium chloride to stop the heartbeat -- overtook Wilson quietly. He died at 10:33 a.m.

Prison spokeswoman Andrea Carson said Wilson remained calm and compliant on the eve of his execution. His cousins, attorneys and Kookoothe visited him in the early evening Tuesday, as he dined on a veritable buffet of food he selected as his last meal. He hardly slept, opting instead to spend the night on the phone with friends and his mother, whom he called several times before dawn, Carson said. He left his breakfast untouched and drank only tea in his final hours, Carson said. Gov. Ted Strickland denied Wilson clemency on Monday. And his appeals ran out Tuesday when the U.S. Supreme Court denied his last effort.

During a news conference after the execution, Kookoothe emphasized the sincerity of Wilson's remorse and said the inmate had faced death with courage and dignity. The Catholic priest criticized Strickland for preparing his clemency rejection letter so hastily that it cited the wrong inmate's number beneath Wilson's name. He also condemned the death penalty. "This situation began with death, and it ends with death," Kookoothe said. "There's death along the whole spectrum. Nothing was achieved."

Lutz's family, who said they have waited 18 years and 29 days to watch Wilson die, disagreed. "People think we're cruel," said Martha Lutz, who witnessed the execution with her husband Jerry and son Doug. "But the cruel part of this is never to have Carol with us ever again."

During the night before Lutz's death in May 1991, Wilson had been drinking at a local bar with some friends and Lutz when she offered Wilson a ride home. Wilson's memory of the events that followed is hazy. But in his confession to police, he said he awoke in the morning in a parking lot, behind the wheel of Lutz's 1986 Oldsmobile Cutlass. Lutz was locked in the trunk.

Wilson said he drove around town, took a walk in a park, and wondered what to do next. Finally, he parked the car behind a school, stuffed a rag in the neck of the open gas tank and tried to use it as a wick. The flame fizzled. By then, Lutz was begging for a bathroom break. Wilson released her momentarily, but then forced her back into the trunk. She sat for a while in the trunk with the lid open, smoked a cigarette with Wilson and bargained for her release. She tried to convince Wilson that she would turn her back and he would never hear from her again. But that was too risky, he concluded, and locked her back in the trunk. He then punctured the gas tank with a tire iron, reset the wick and lit the car ablaze.

Later that afternoon, passersby reported a car fire. When firefighters extinguished the flames, they found Lutz's body in the trunk. Her clothing and hair had mostly burned off, and portions of her skin had burst open as heat built up in her tissues. Arson investigators estimated temperatures in the trunk topped 550 degrees.

At trial, Wilson claimed he was too intoxicated when he committed the crime to understand the gravity of his actions. But a Lorain County jury convicted him of aggravated murder, kidnapping and aggravated arson, and he was sentenced to death in April 1992. He later appealed his guilty verdict, arguing that the burden of proof should have been on the state, not on him to prove his innocence.

Wilson's clemency request in April highlighted his tortured childhood with an abusive father and alcoholic foster parents. But prosecutors countered Wilson's argument with examples of vicious crimes from his adolescence. At the age of 14, Wilson broke into the house of an 82-year-old neighbor and ransacked the home. Wilson ripped the telephone cord out of the wall when confronted with the old man, who broke a hip in the struggle and later died of pneumonia.

Wilson was convicted of involuntary manslaughter and served two years in a detention center for youths. But in his request for clemency, he explained that his father deprived him and his brother of food, and he had to rob neighbors to survive.

In a written statement to the Adult Parole Authority, Wilson apologized to the families he destroyed on account of his crimes. He said he is a changed man and begged for mercy. Martha Lutz said today that even without clemency, Wilson received more mercy than he deserved, more compassion than he showed her daughter. "His death was nothing like Carol's," she said. "All he ever cared about was saving himself. But he should have thought of that before he closed the lid, set the car on fire and walked away."

Daniel Wilson gets last meal, prepares for execution

June 02, 2009

LUCASVILLE, Ohio — A man who locked a woman in the trunk of her car, punctured the gas tank and burned her alive was delivered to the Ohio death house this morning, where he will spend his final 24-hours before he is executed. Daniel Wilson, 39, was calm and compliant on his journey from death row at the Ohio State Penitentiary in Youngstown to the Southern Ohio Correctional Facility in Lucasville, said prisons spokeswoman Andrea Carson.

Wilson is scheduled to die by lethal injection at 10 a.m. Wednesday for the May 4, 1991, murder of 24-year-old Carol Lutz. He was expected to receive friends and family between 4:30 and 7:30 p.m. Tuesday, while he dines on the extensive assortment of foods he selected as his last meal.

His menu includes a well-done porter house steak with steak sauce, a baked potato with sour cream and bacon bits, salad with lettuce, cucumbers, tomatoes, radishes, green peppers, carrots and French dressing, corn on the cob with butter, grapes, macaroni and cheese, dinner rolls and Cool Ranch Doritos with a jar of salsa. For dessert, Wilson will have strawberry ice cream and strawberry cheesecake -- both with real strawberries -- and he'll wash it all down with a 2-liter of Dr. Pepper with ice. He has also requested one tea bag.

Gov. Ted Strickland denied Wilson's plea for clemency Monday. In a written statement, Strickland said he made his decision after reviewing evidence and testimony presented at Wilson's clemency hearing in April before the Ohio Adult Parole Authority. Wilson argued at the hearing that his mother abandoned him at a young age and that his childhood was marred by his father's consistent abuse and torture.

Prosecutors countered that Wilson had ample opportunities to release his victim before torching the car with Carol Lutz inside.

Lutz's parents, Martha and Jerry Lutz, and her brother, Doug Lutz, will witness Wilson's execution Wednesday, Carson said. Also present will be Wilson's cousin Rodney Mele, friend Brent Mowry and Wilson's attorney, Alan Rossman.

Daniel E. Wilson

ProDeathPenalty.Com

On 5/4/91, Daniel E. Wilson, 21, murdered his 24-year-old acquaintance, Carol Lutz, in Elyria. Carol had offered Wilson a ride home from a bar. Wilson locked Carol in the trunk of her car and drove around for several hours. Wilson later punctured the car's gas tank, stuffed a rag into the tank and set the car on fire. Carol died of third degree burns and carbon monoxide poisoning in the car's trunk, which reached an estimated 550 degrees. Wilson later confessed to police.

When Wilson was 14 years old, he broke into an elderly man's home, assaulted the man resulting in a broken hip, ripped out the phone and left the man for dead. The victim was unable to call for help and died as a result of his injuries. Wilson was found delinquent by reason of involuntary homicide and served a year in a juvenile facility before being transferred to a halfway house.

State v. Wilson, 74 Ohio St.3d 381, 659 N.E.2d 292 (Ohio 1996). (Direct Appeal)

Defendant was convicted in the Court of Common Pleas, Lorain County, of aggravated murder, kidnapping, and aggravated arson, and he was sentenced to death. Defendant appealed. The Court of Appeals affirmed, 1994 WL 558568, and defendant appealed as of right. The Supreme Court, Wright, J., held that: (1) defendant was not entitled to individually voir dire prospective jurors about specific mitigating factors; (2) prosecutor did not attempt to commit jurors to impose death penalty during voir dire; (3) prosecutor's use of peremptory challenge was not discriminatory; (4) defendant's confession was voluntary; (5) any instructional error did not prejudice defendant; (6) appellate reweighing of aggravating and mitigating circumstances was appropriate following determination that defendant's juvenile record was improperly considered below during weighing process; and (7) death sentence was properly imposed. Affirmed. Douglas, J., concurred in judgment only.

In Elyria, on Saturday, May 4, 1991, around 1:30 p.m., defendant-appellant, Daniel Wilson, killed Carol Lutz by locking her in the trunk of her car, puncturing the gas tank, and setting the car on fire. Wilson then walked away, allowing Carol Lutz to be baked alive.

On the previous afternoon, Wilson was drinking at the Empire Tavern, a bar he frequented. Between 5:00 and 6:00 p.m., he went to the home of Angie Shelton, a girl he dated. As they argued, Wilson got mad, “slammed” her “against the wall,” threw her on the bed, and “went to hit” her. Shelton told him that if he hit her, she “would be the last person that he hit.” Wilson then left, and later returned to the Empire Tavern.

That evening, Carol Lutz drove her 1986 Oldsmobile Cutlass to the Empire Tavern to meet Douglas Pritt, an old boyfriend, and Wilson, apparently a new friend. Pritt, Lutz and Wilson played pool and drank together. Pritt left the bar sometime between 12:30 a.m. and 1:00 a.m. Lutz left close to 2:30 a.m., and Wilson left right after she did. According to Wilson's confession, Lutz offered him a ride home. She drove with him to the trailer where he lived. Once there, they drank one or two beers. Wilson vaguely recalled driving to Lorain to search for a party, and stopping at his father's house.

Darlene DeBolt, a service station cashier in Stow, stated that Wilson stopped at the station around 5:55 a.m. on May 4. He was driving a black Oldsmobile Cutlass and appeared to be alone. DeBolt did not hear any noise coming from the Oldsmobile. Wilson told DeBolt, an old friend, that the car was his, that he had just driven from Canada, and that he “stopped a few states back for a few beers.” DeBolt smelled alcohol on him. Wilson tried to get DeBolt to go out with him and was “persistent and pushy.” DeBolt refused to leave work and after sixty or ninety minutes, Wilson left.

When Wilson woke up on May 4, around 7:30-8:00 a.m., he was in a parking lot, sitting in the driver's seat of Lutz's Oldsmobile. Lutz, who was locked in the trunk, asked him to let her out, but he did not. Wilson could not recall how she got there. He drove to various places including a park where he took a walk. He remembers thinking, “How am I going to get out of this?” Throughout this time, Lutz remained locked in the trunk.

Later that morning, Wilson drove to a school and parked the Oldsmobile. After awhile he took off the gas cap, stuffed a rag in the open neck of the gas tank and lit the rag. This time, the fire burned out. Lutz told him “she really had to go to the bathroom.” He “took the rag back out” of the gas tank and “let her [out to] go to the bathroom.”

When he “told her to get back” in the trunk, “she stood there-she begged and pleaded with me. She begged-she'd turn around for 30 seconds and let me run like hell.” Lutz told Wilson, “she'd go home and forget about it.” Wilson didn't believe her and thought to himself, “How can you forget about being locked in a trunk?” Wilson stated that he did not just leave her in the trunk because he “figured somebody would find her * * *. She'd get out and tell who I was.”

When Wilson told her to get back in the trunk a second time, she complied. She sat in the trunk for fifteen to twenty minutes with the lid up. They talked, and “[s]he asked me why don't I just let her go?” He “even gave her a cigarette.” Then he closed the trunk lid, “poked a hole in the gas tank,” stuffed a towel or blanket into the gas tank, “let it soak with gas * * * and * * * lit it.” Then he “walked away from the car” and went to a nearby park.

While out driving that day, Janette Patton and her mother noticed smoke and saw Lutz's Oldsmobile enveloped in fire. Within a short time, an ambulance arrived. A paramedic opened a door to check for people and saw that there were none in the passenger compartment.

At 1:34 p.m., the Elyria Fire Department responded to reports of a car fire. Firemen extinguished the fire and forced open the trunk of the Oldsmobile. Steam and smoke poured from the opened trunk obscuring their view. When firemen extinguished the remaining flames, they found Lutz's body.

An arson investigator estimated that the flames could have heated the trunk to over 550 degrees, which could cause combustibles there to ignite and catch fire. There were no holes in the trunk, but there was a puncture in the gas tank. Investigators found a gas cap under the driver's seat and a tire iron and cross bar in the back seat. Several samples of materials taken from inside the car tested positive for kerosene.

Police detective Ray Riley traced the car to Carol Lutz and learned that she had last been seen with Wilson at the Empire Tavern. On May 9, police took Wilson into custody. Riley interviewed Wilson after advising him of his Miranda rights. Wilson waived his rights and agreed to talk with the police. Riley tape-recorded the interview. Wilson confessed to keeping Lutz locked in the trunk of the Oldsmobile intermittently from 7:30 a.m. on May 4 until the time of her death. It appears that around 1:30 p.m., he killed her by setting the Oldsmobile on fire.

The grand jury indicted Wilson on three aggravated murder counts. Count I charged aggravated murder by prior calculation and design; Count II charged felony-murder (kidnapping); and Count III, as amended, charged felony-murder (aggravated arson). Each murder count had three death specifications. Specification one charged murder to escape “detection, apprehension, trial, or punishment” for kidnapping, specification two charged murder during kidnapping, and specification three charged murder during an aggravated arson. Wilson was also indicted for kidnapping (Count IV) and aggravated arson (Count V).

Wilson defended himself at trial by claiming intoxication and lack of prior calculation and design. The jury found Wilson guilty on all counts.

Penalty Phase

At the penalty phase, the prosecutor elected to proceed to sentencing only on Count I, prior calculation and design, and specification one, evading detection or punishment for another offense in violation of R.C. 2929.04(A)(3). Accordingly, neither the court nor jury considered the other two murder counts or the felony-murder death penalty specifications in assessing the penalty.

At the outset of the defense's case, a forensic toxicologist explained the effect that alcoholism has on a person's body, mind, and behavior. Linda Wilson, Wilson's mother, David Wilson, his younger brother, and Wilson's grandfather and aunt testified as to his childhood. Wilson's parents had two other sons, Donald and David; Wilson was the middle child.

Wilson's alcoholic father brutalized his wife and three sons throughout Wilson's childhood. Wilson's father would lock his sons in their bedroom at night and refuse to let them out, even to go to the bathroom. The father teased and belittled his sons. In drunken rages, Wilson's father would call his sons, “liars, cheats, and thieves,” accuse them of stealing things he could not find, and hit them on their bare backsides with a leather belt. Linda Wilson testified that her husband frequently slapped and terrorized her. When Wilson was twelve, he was arrested for the vandalism of a friend's house. A year or so later, his mother moved out of the family home. She took Donald with her, and left Wilson and David with their father.

Wilson's father did not properly care for his sons, omitting even to buy food. Wilson and David were forced to steal to survive. They regularly broke into neighbors' homes to steal food or money. When he was fourteen, Wilson broke into a neighbor's house. When the neighbor surprised him, Wilson struck the elderly man, causing him to fall and break his hip. Wilson then ripped the phone cord out of the wall and left. The neighbor was not found for two days and died as a result of his injuries and the passage of time.

A juvenile court adjudged Wilson delinquent by reason of involuntary manslaughter and remanded him to the custody of the Department of Youth Services. Wilson spent one year in a state facility for serious offenders, and then went to a halfway house. He fared well at both facilities. Although Wilson was initially reluctant to accept responsibility for his neighbor's death, he did so eventually.

Days before reaching the age of seventeen, Wilson went to live with Shirley Spinney, a foster parent. Wilson adjusted well to living with Spinney. He graduated from high school, with a B average, and worked part-time while in school. After high school, Wilson continued to live with Spinney even after released from the custody of Youth Services. Wilson attended college for two semesters while continuing to work. Spinney described Wilson as incredibly compassionate, sensitive and considerate. Ultimately, Spinney discovered Wilson had a serious drinking problem. At times, he got very drunk and would call her, and she would get him and take him home.

In 1988, Spinney's other foster child, Mark, was killed in an accident. Wilson was devastated by Mark's death and he began to drink more heavily. His girlfriend noted that Mark's death had a strong impact on Wilson and that he seemed like a different person when he was drinking. The next year, Wilson left Spinney's home to live with friends. He next moved in with his mother and grandfather, sleeping in a camper behind their house. While there, he attempted to expunge his juvenile record and made plans to join the Navy.

In an unsworn statement, Wilson asserted that his father “could do no wrong” in his eyes. In spite of all the terrible things his father had done, he liked and spent a lot of time with him. Wilson described his juvenile arrest and his incarceration. He also described the positive influence of Spinney and the progress he made while living with her. Wilson stated that after Mark died, he gave up on life. He denied that he “intended to hurt” Lutz, and said, “I still do not know why I reacted the way I did.” He “would like to say to her family [he is] sorry.” Wilson said he did not want to die, and asked for another chance at life.

Dr. James Eisenberg, a psychologist, examined Wilson and made the following findings. Wilson is above average in intelligence and has difficulty becoming emotionally involved with others. Wilson's lifestyle was marked by “strong dependency needs, maladjustment and chaos.” He suffered from alcohol dependence and a “mixed personality disorder with borderline and antisocial features.” Wilson was the product of a “classic dysfunctional family marked by physical, emotional and psychological abuse,” but he still identified with his father, not his “battered” mother. Wilson knew right from wrong, and his ability to conform to the law was not impaired. Wilson could adjust and function in an institutional setting.

In rebuttal, Martha Lutz, Carol's mother, testified about the devastating impact of Carol's death on the family. They had been very close and had done many things together, including shopping together frequently. Martha stated that she has a “broken heart that's never going to heal” and misses Carol a lot, since “[s]he was our only daughter.”

The jury recommended the death penalty. The trial court agreed and sentenced Wilson to death for aggravated murder and imprisonment for the kidnapping and aggravated arson. The court of appeals affirmed the convictions and death sentence.

The cause is now before this court upon an appeal as of right.

WRIGHT, Justice.

Wright, J. We are required by R.C. 2929.04(A) to review Wilson's twenty-eight propositions of law. Many of these legal issues have been decided in prior cases and will be handled summarily. State v. Poindexter (1986), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570. We must also make an independent review of the record to determine whether the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Finally, we must decide whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.

For the reasons set forth below, we affirm the convictions and sentence of death. I Voir Dire/Jury Issues

In his first proposition of law, Wilson argues that the trial court denied him due process by not allowing him to individually voir dire prospective jurors about specific mitigating factors. Wilson argues he should have been allowed to ask what each prospective juror thought about each of several statutory mitigating factors (R.C. 2929.04[B][1]-[4] ) as well as fourteen individually tailored “other factors.”

Wilson relies strongly on Morgan v. Illinois (1992), 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492. In Morgan, the United States Supreme Court held that the trial court, at an accused's request, must ask prospective jurors about their views on capital punishment in an attempt to ascertain whether any of them would automatically vote for the death penalty regardless of the circumstances. The court held that the voir dire was inadequate to detect such jurors and reversed the death sentence. An earlier United States Supreme Court decision had held that asking jurors whether they were opposed to the death penalty did not violate an accused's constitutional rights. Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137.

In a recent case the United States Supreme Court held that a trial judge's refusal to voir dire individual jurors about the contents of news reports each juror had read did not violate the Constitution. Mu'Min v. Virginia (1991), 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493. The court stated that a trial court has “great latitude in deciding what questions should be asked on voir dire.” Mu'Min, 500 U.S. at 424, 111 S.Ct. at 1904, 114 L.Ed.2d at 505. See Annotation (1994), 114 L.Ed.2d 763. Deciding “issues raised in voir dire in criminal cases has long been held to be within the discretion of the trial judge.” State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285. See Rosales-Lopez v. United States (1981), 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22.

We find no abuse of discretion in this case. Here, the trial court allowed individual voir dire in the death-qualification process. The trial judge asked the prospective jurors approximately twenty questions about their views on capital punishment, the basis of those views, their willingness to consider mitigating evidence, the death penalty, and their commitment to follow instructions as given. The trial court also allowed counsel to inquire into these matters.

Morgan does not require judges to allow individual voir dire on separate mitigating factors. The detailed questioning that occurred in this case was adequate to expose faults that would render a juror ineligible. See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus. Morgan imposes no further requirements on voir dire.

Moreover, we have rejected past efforts to find an abuse of discretion in similar circumstances. See State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913, 920. “Jurors weigh mitigating factors together, not singly, and do so collectively as a jury in the context of a penalty hearing. Realistically, jurors cannot be asked to weigh specific factors until they have heard all the evidence and been fully instructed on the applicable law.” State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304, 315. Further, a juror need not give any weight to any particular mitigating factor although instructed to consider such factors. “[E]vidence of an offender's history, background and character” not found mitigating “need be given little or no weight against the aggravating circumstances.” State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus. See State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph two of the syllabus. We find that Wilson's first proposition of law lacks merit.

In his fourth proposition of law, Wilson argues that the trial court erred in allowing the prosecutor to ask questions about “victim's rights” during general voir dire. At various times, the prosecutor asked jurors about their “perceptions” of the criminal justice system. He followed up by asking whether any jurors had heard or thought about “victim's rights” and what their thoughts were on that subject. The prosecutor's questions were deliberately brief, open-ended, and nonjudgmental. He did not attempt to explain “victim's rights,” indoctrinate the jurors, inflame the jurors, or improperly appeal to community sentiment.

We do not find these limited voir dire questions to be improper. Newspapers and other media frequently discuss the criminal justice system and “victim's rights.” Such limited, open-ended questions could uncover biased or unsuitable jurors. Trial judges have discretion over voir dire and are not required to exclude all possibly controversial topics. State v. Bedford, 39 Ohio St.3d at 129, 529 N.E.2d at 920; Rosales-Lopez v. United States, supra. The trial court did not abuse its discretion by allowing the prosecutor's limited questioning about the criminal justice system or “victim's rights.”

In his tenth proposition of law, Wilson argues that the prosecutor “destroyed the presumption of innocence” and “asked the jurors during voir dire to commit themselves to the * * * death penalty.” Viewed in the context of the entire voir dire, the prosecutor's questions were not an attempt to destroy Wilson's presumption of innocence. Instead, the prosecutor tried to determine whether jurors could recommend the death penalty if the accused were convicted as charged, and if the aggravating circumstance were found to outweigh the mitigating factors. Although the prosecutor inartfully used the terms “presume” and “presuming” in connection with guilt, Wilson did not object and therefore waived that issue. Moreover, the context shows that the prosecutor meant “assume” and “assuming,” not “presume” and “presuming.” The trial court fully instructed the jury on the accused's presumption of innocence. The state's imprecise language did not affect that presumption.

The prosecutor did not wrongfully attempt to commit jurors to imposing the death penalty. Instead, the prosecutor attempted to discover whether a juror could, in an actual case and not on an abstract level, sign a death penalty verdict if that juror found that the aggravating circumstance outweighed the mitigating factors. As the trial court noted, “the point * * * is can jurors distinguish between that which is philosophical and abstract and that which is real.” Such questions are proper; thus, we reject Wilson's tenth proposition of law. State v. Lorraine (1993), 66 Ohio St.3d 414, 424-425, 613 N.E.2d 212, 221; State v. Evans (1992), 63 Ohio St.3d 231, 249-250, 586 N.E.2d 1042, 1057-1058.

In his ninth proposition of law, Wilson argues that the trial court erred in not granting a change of venue or allowing sufficient voir dire to identify biased jurors. Yet, Wilson failed to show any basis for a change in venue. Moreover, the trial court adequately and individually questioned jurors on pretrial publicity, and Wilson's counsel had ample opportunity to inquire further. Of the jurors that sat, only three had read or heard anything beyond headlines or TV reports, and none had an opinion about the accused's guilt. Finally, “[a]ny decision on changing venue rests largely in the discretion of the trial court.” State v. Landrum (1990), 53 Ohio St.3d 107, 116, 559 N.E.2d 710, 722. Thus, we find Wilson's ninth proposition of law lacks merit.FN1

FN1. All jurors denied knowledge of the events at issue in the trial, except as indicated. Beere, “headlines,” only; Edwards, heard and saw “something about it”; Schlegelmilch, “read a little bit,” but had no opinion; Schuller, “read some articles,” but had no opinion; Perez, “haven't followed it much”; Barnes, recalled hearing about it “[a] long time ago.”

In his eleventh proposition of law, Wilson contends that the trial court improperly used the Wainwright constitutional standard to death-qualify the jury. Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841. However, the trial court correctly used the Wainwright standard. See State v. Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, 586; State v. Scott (1986), 26 Ohio St.3d 92, 96-97, 26 OBR 79, 83, 497 N.E.2d 55, 59-60; State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus.

In his twelfth proposition of law, Wilson argues that the trial court erred in rejecting challenges to prospective jurors Sibley and Clutter and juror Edwards. The standard of review in this respect is that “ ‘[d]eference must be paid to the trial judge who sees and hears the juror.’ * * * We will not overrule his decision absent an abuse of discretion.” State v. Tyler, 50 Ohio St.3d at 30, 553 N.E.2d at 586. We have reviewed the transcript and find no abuse of discretion.FN2

FN2. Wilson's counsel asked Sibley what factors he would like to know about an accused before deciding on the sentence. Sibley replied he would “like to know about the crime” and that “would be the deciding factor” or “main thing.” It isn't possible for a prospective juror to know what, if any, mitigating factors are to be considered before being accepted as a juror. Sibley stated he would follow the court's instructions and not his personal views, would fairly consider mitigating factors, and would consider penalties other than death if the evidence warranted. We find that no basis for challenge existed.

Wilson's counsel objects to Clutter because Clutter had read about the case, and at some point became “too disgusted” to read further. Clutter stated she could not understand “why in the world anybody would burn anybody.” Clutter also stated that she had “no idea what happened” and thus had no opinion as to the guilt or innocence of Wilson. She stated that she would not “judge anybody until” she “hear[s] everything.” She agreed to set aside any feelings of disgust, to follow the court's instructions, and to consider mitigating evidence and penalties other than the death penalty. The court did not abuse its discretion in rejecting Wilson's challenge to Clutter.

Edwards expressed concern over her absence from a family business in the event she was sequestered for “a week or something.” She said, “[I]f it's more than a couple of days, it's going to be a problem.” She also stated, “As long as I go home at night that's okay.” She promised not to think about her business “in this courtroom” and to “give this case” her “full attention.” She promised to “be here and listening” during all court sessions. Again, the court did not abuse its discretion by rejecting this challenge.

In his thirteenth proposition of law, Wilson argues that the prosecutor peremptorily excused prospective juror Bruce on racial grounds. Obviously, jurors cannot be excused based on racial considerations. Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. However, the prosecutor explained in race-neutral terms that he challenged Bruce based on Bruce's equivocation about the death penalty. The record supports the state's claim. When asked if he would fairly consider that penalty, Bruce said, “Yes, I guess. I'm not sure about that.” When asked whether he could sign a death verdict, Bruce replied, “I really don't know.” In response to the same line of questioning he said, “I think so” and “I can't say I can. I guess if I have the evidence and listen to the evidence, I could.” In the face of such responses, the prosecutor's peremptory challenge was appropriate. Wilson's thirteenth proposition of law lacks merit. See State v. Hernandez (1992), 63 Ohio St.3d 577, 589 N.E.2d 1310.

In proposition of law fourteen, Wilson argues that the trial court erred when the court passed out notebooks and told jurors they could take notes during the trial. Wilson did not object to the notetaking or the jury instructions on notetaking thereby waiving all but plain error. A trial court can exercise its discretion and allow jurors to take notes. See State v. Loza (1994), 71 Ohio St.3d 61, 74, 641 N.E.2d 1082, 1099; State v. Williams (1992), 80 Ohio App.3d 648, 610 N.E.2d 545. The court adequately instructed the jury and emphasized that notes were to assist the jury, not a primary objective; that taking notes should not distract the juror from paying close attention to the ongoing testimony; and that “[y]our primary objective is to hear evidence and testimony as it comes to you from the witness stand.” Thus, we find no plain error with respect to the notetaking by the jurors and reject Wilson's proposition of law fourteen.

II Evidence Issues

In his eighth proposition of law, Wilson argues that the trial court erred by not suppressing his confession. He claims that he asked for an attorney and didn't receive one, that his confession was involuntary, and that his mental faculties were impaired at the time of his confession. The recorded interviews indicate that Detective Riley advised Wilson of his Miranda rights and that Wilson waived those rights and agreed to talk with the police. Wilson claims that he asked for a lawyer when the recorder was turned off, that Riley promised to help him if he confessed, and that Riley threatened Wilson with the “electric chair” if he did not confess. Riley denied all of these claims. Wilson said he had had a beer and smoked two marijuana cigarettes earlier that afternoon, but Riley found Wilson alert and in control of his mental faculties.

“[T]he weight of the evidence and credibility of witnesses are primarily for the trier of the facts. * * * This principle is applicable to suppression hearings as well as trials.” State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584. The trial court specifically found in its entry denying Wilson's motion to suppress that Wilson “knowingly and intelligently waived his right against self-incrimination” and that his statements “were voluntarily made.” Further, the accused's asserted intake of one beer and “two joints” did not prevent him from being able to make “a knowing, voluntary and intelligent waiver of his rights.” Further, the trial court found that Wilson never invoked his right to counsel “[d]ue to the inconsistencies” in his testimony. The taped interviews and testimony support those findings. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 982; State v. Smith (1991), 61 Ohio St.3d 284, 288, 574 N.E.2d 510, 515. Accordingly, we reject Wilson's eighth proposition of law.

In proposition of law fifteen, Wilson argues that the trial court erred in admitting prejudicial “other acts” testimony from Angie Shelton and Darlene DeBolt. On the evening of May 3, Wilson had argued with Shelton, his girlfriend, and threatened to hit her. On May 4, around 6:00 a.m., Wilson dropped by the gas station where DeBolt worked and tried to get her to go out with him. We find no prejudicial error in the trial court's decision to allow the testimony of these witnesses.

The state contended that Wilson's motive in kidnapping Lutz was, at least in part, his inability to deal with female rejection. The fact that, just before meeting Lutz, Wilson had argued with Shelton and threatened to hit her after she rejected him arguably supports that claimed motive. Under Evid.R. 404(B), evidence of other acts, though criminal, may be admissible as “proof of motive.” See State v. Woodard (1993), 68 Ohio St.3d 70, 73, 623 N.E.2d 75, 78.

DeBolt's testimony was clearly admissible. DeBolt placed Wilson in Lutz's Oldsmobile between 6:00 a.m. and 7:00 a.m. on May 4, corroborating that part of Wilson's confession. DeBolt describes Wilson as “persistent” and “pushy” and thus never raises an “other acts” issue. In view of the overwhelming evidence of Wilson's guilt, especially his voluntary confession, the testimony of neither witness materially prejudiced Wilson. Thus, we reject his fifteenth proposition of law.

In proposition of law sixteen, Wilson argues that the trial court erred by admitting “cumulative, gruesome and inflammatory” photographs of the victim and crime scene. These photos were also reproduced and shown as slides. Under Evid.R. 403 and 611(A), the admission of photographs is left to the trial court's sound discretion. State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916, 923. Nonrepetitive photographs in capital cases, even if gruesome, are admissible as long as the probative value of each photograph outweighs the danger of material prejudice to an accused. See State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273.

The trial court properly admitted these photographs and slides. The two photographs of Lutz's body illustrate the coroner's testimony, are nonrepetitive, and each has probative value greater than any prejudicial effect. Two other photographs, also admissible, show Lutz's body at the scene after the fire was extinguished. Both photographs illustrate testimony and help to demonstrate Wilson's intent and the extent of Lutz's injuries. The remaining photographs under objection are relevant, nonobjectionable, and not even gruesome, since they do not contain a body. See State v. DePew (1988), 38 Ohio St.3d 275, 281, 528 N.E.2d 542, 550-551. Thus, we find that proposition of law sixteen lacks merit.

In proposition of law seventeen, Wilson argues plain error, contesting the admission of testimony from the coroner and three witnesses who were at the scene of the burning car. The coroner testified about Lutz's injuries and confirmed that carbon monoxide and third degree burns had caused her death. Patton described the fire and the pictures she had taken of the burning car, helping to confirm the fire's origin and intensity. The paramedic described the fire and his confirmation at the scene that no one was in the passenger compartment of the car. A fire department captain described the fire fighting efforts, the car's damage, and the body in the trunk.

Wilson did not object to these witnesses at trial, thereby waiving this issue absent plain error. The testimony from these witnesses was relatively brief, relevant, and not unfairly prejudicial to the accused under Evid.R. 403(A), which states that even relevant evidence must be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice * * *.” The overwhelming evidence of Wilson's guilt, including his confession, precluded any material prejudice from this factual testimony. Wilson did object to the photos and a few questions that were asked of the coroner, but those objections lack merit.

Wilson offered, at the last moment, to stipulate to the victim's identity; the state did not agree to the stipulation. Testimony from two dentists establishing Lutz's identity was proper, nonprejudicial, and not inflammatory. Thus, we find Wilson's claim of error, with respect to these witnesses, lacks merit.

III Guilt Phase Instructions

In propositions of law eighteen, nineteen, twenty, twenty-one, and twenty-five, Wilson argues that the trial court erred in giving guilt phase instructions. Wilson failed to object at trial to the instructions he now contests in propositions of law eighteen and nineteen. He also failed to object with specificity to the instruction contested in proposition of law twenty-five. Thus, he waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. We find no plain error as to those issues. As to proposition twenty, Wilson argues correctly that the trial court erred in shifting the burden of proof as to “knowledge.” Except on that point, Wilson's propositions twenty and twenty-one also lack merit.

In proposition of law eighteen, Wilson argues plain error because the trial court instructed, “[t]he purpose with which a person does an act or brings about a result is determined from the manner in which it is done, the means used and all of the other facts and circumstances in evidence.” We reject Wilson's claim that these words relieved the prosecutor of his burden of proof or created a mandatory presumption. State v. Montgomery (1991), 61 Ohio St.3d 410, 414-415, 575 N.E.2d 167, 171-172; State v. Price (1979), 60 Ohio St.2d 136, 141, 14 O.O.3d 379, 382, 398 N.E.2d 772, 775.

The court further instructed that no one “may be convicted of Aggravated Murder unless he's specifically found to have intended to cause the death of another.” The instructions on prior calculation and design also amplified the court's instructions on “purpose.” When the instructions are viewed in context, Wilson's claim of error, plain or otherwise, lacks merit.

In proposition of law nineteen, Wilson argues plain error because of the trial court's following definitions of “purpose” which Wilson contends are “incongruous”: “A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the Defendant a specific intention to cause the death of another. * * * A person acts purposely, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, if it is his specific intention to engage in conduct of that nature.”

Admittedly, the “gist of the offense” language is confusing in a murder prosecution which requires “purpose.” See State v. Carter (1995), 72 Ohio St.3d 545, 552-553, 651 N.E.2d 965, 973-974; R.C. 2901.22(A); 4 Ohio Jury Instructions (1995) 52, 409.01(3)(Comment). In the context of all the instructions given the jury, the court provided adequate instructions on the element of specific intent to kill. State v. Price, 60 Ohio St.2d at 140-141, 14 O.O.3d at 381-382, 398 N.E.2d at 775; State v. Martens (1993), 90 Ohio App.3d 338, 349-350, 629 N.E.2d 462, 469-470. Given the evidence, including Wilson's confession, the jury could not have based its decision on the “gist of the offense” language. No “outcome-determinative” plain error occurred. We, therefore, reject proposition of law nineteen.

In proposition of law twenty, Wilson first argues that the trial court erred in refusing his request to instruct the jury on intoxication as it relates to aggravated murder and arson. Whether to instruct on intoxication as a defense rests within a trial court's sound discretion. State v. Wolons (1989), 44 Ohio St.3d 64, 541 N.E.2d 443, paragraph two of the syllabus; State v. Fox (1981), 68 Ohio St.2d 53, 22 O.O.3d 259, 428 N.E.2d 410; Nichols v. State (1858), 8 Ohio St. 435, paragraph two of the syllabus. Such an instruction is not required, since “[i]ntoxication is easily simulated” and is “often voluntarily induced for the sole purpose of nerving a wicked heart[.]” Nichols, 8 Ohio St. at 439. As discussed infra, the court did instruct on intoxication as to the kidnapping offense and specifications.

Moreover, the evidence does not reasonably raise the intoxication issue as to the aggravated murder or arson. Wilson cites much evidence from the trial to show how much alcohol he drank up to 2:30 a.m. on May 4. However, aside from one or two beers at his trailer around 3:00 a.m., there was no evidence at trial that indicated Wilson drank anything after that time. The murder occurred around 1:30 p.m., eleven hours after the Empire Tavern closed and at least eight hours after Wilson's last beer. During this time, Wilson walked, slept, drove to various places, and talked with DeBolt at 6:00 a.m. in Stow for sixty to ninety minutes. His own confession reflects that he knew exactly what he was doing after 7:30 a.m. Lacking evidence of intoxication, the court did not err in declining to instruct on intoxication as to the events that directly preceded Lutz's death. See State v. Hicks (1989), 43 Ohio St.3d 72, 538 N.E.2d 1030, syllabus.

In proposition of law twenty, Wilson further argues that the trial court erred in instructing the jury, over objection, that he had the burden of proof to establish that his intoxication negated the “knowledge” element in the kidnapping. This contention relates solely to the kidnapping conviction. Wilson makes no claim that any error affects the remaining charges or the death penalty.

The court instructed: “Intoxication is not an excuse * * *, [but] such evidence is admissible for the purpose of showing that the Defendant was so intoxicated that he was incapable of having the knowledge to commit the offense of Kidnapping. Knowledge is the element of this offense; and intoxication * * * can co-exist with knowledge. * * * On this issue, the burden of proof is upon the Defendant to establish by a preponderance or greater weight of the evidence that at the time in question he was so influenced by alcohol that he was incapable of having the knowledge to commit the offense. If you find by a preponderance or greater weight of the evidence that the Defendant was incapable of having the knowledge to commit the offense, then you must find the Defendant was not guilty of the offense of Kidnapping because Knowledge is an essential element of the offense[,] as I have previously instructed you.” (Emphasis added.)

As the court instructed, “knowledge” is an element of kidnapping. Due process requires the prosecution to prove, beyond a reasonable doubt, every element of the crime charged. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Due process prohibits requiring an accused to disprove an element of the crime charged. Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. This instruction is unconstitutional under Winship because it required Wilson to disprove “knowledge,” which is an element of the offense of kidnapping. R.C. 2905.01(B). The burden of proof cannot be placed on a defendant to disprove an element of an offense. Mullaney, supra. Nevertheless, we find the error to be harmless under the facts of this case, since the kidnapping of Lutz continued into the late morning and early afternoon. At that point, he clearly knew what he was doing and intoxication would not reasonably be available as a defense to negate “knowledge.”

No other offenses are affected by this instructional deficiency, since this instruction on intoxication involved only the kidnapping. The felony-murder counts and kidnapping penalty specifications played no role at all in the penalty phase. The death penalty was imposed solely on Count I and specification one.

In proposition of law twenty-one, Wilson argues that the trial court erred in refusing his request to instruct on murder as a lesser included offense. However, a charge 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. Here the evidence did not reasonably raise murder as a lesser included offense.

No evidence exists that indicates that Wilson had anything to drink after approximately 2:30 a.m. Wilson knew Lutz was locked in the trunk at 7:30 a.m. In the hours after that, he drove and walked around, kept Lutz locked in the trunk, and thought about what he was going to do. It appears that by 1:00 p.m., he had decided to kill her and to that end set fire to a rag stuffed into the gas tank. That time, the fire went out. He next let Lutz out of the trunk and talked with her for fifteen to twenty minutes before forcing her back in the car trunk. This time he punctured the gas tank before lighting the rag. The fire caught and Lutz was burned to death. Evidence of prior calculation and design is overwhelming, and a jury could not reasonably find him guilty of murder but not guilty of aggravated murder. Thus, the trial judge did not err in refusing to instruct on murder as a lesser included offense. See State v. Evans, 63 Ohio St.3d at 245, 586 N.E.2d at 1054-1055; State v. Tyler, 50 Ohio St.3d at 36, 553 N.E.2d at 591.

We summarily reject Wilson's proposition of law twenty-five, which challenges Ohio's statutory reasonable doubt instruction used at the guilt and penalty phases. State v. Van Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604; State v. Nabozny (1978), 54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E.2d 784, paragraph two of the syllabus. Moreover, it should be noted that Wilson failed to object and waived the issue. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; Crim.R. 30(A). IV Effective Assistance of Counsel

In proposition of law twenty-four, Wilson argues that he was denied his right to the effective assistance of counsel at trial. Wilson did not raise this claim before the court of appeals and thus waived this issue. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. Moreover, reversal of convictions on ineffective assistance requires that the defendant show, first, “that counsel's performance was deficient” and, second, “that the deficient performance prejudiced the defense * * * so * * * as to deprive the defendant of a fair trial.” Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

Wilson challenges his counsel's decisions on numerous issues. We find that each of those decisions was the product of reasonable professional judgment. Additionally, as to all of these issues, Wilson has not established prejudice, i.e., “a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.” Bradley, paragraph three of the syllabus. Thus, we find that proposition of law twenty-four lacks merit.

V Constitutional Issues

Proposition of law twenty-two challenges the death-penalty felony-murder provisions, but it lacks both merit and relevance. State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of the syllabus. Wilson's arguments in proposition of law twenty-seven challenging Ohio's proportionality review lack merit. State v. Green (1993), 66 Ohio St.3d 141, 151, 609 N.E.2d 1253, 1261; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus. We summarily reject Wilson's constitutional arguments in propositions of law twenty-two, twenty-seven and twenty-eight. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.

VI Sentence Issues

In his second proposition of law, Wilson challenges the constitutionality of appellate sentence reweighing in death penalty cases and seeks to sharply restrict the use of appellate reweighing to determine sentence appropriateness. Wilson further argues that appellate reweighing is speculative and improper when an error is based upon inadmissible evidence. However, we find Wilson's second proposition of law lacks merit.

At the sentencing proceedings, the jury and judge became aware that Wilson had been earlier adjudged a delinquent child for an involuntary manslaughter. Wilson starts his arguments against reweighing with the erroneous assumption that the court improperly admitted evidence of his juvenile criminal history. The trial transcript demonstrates that Wilson mentioned his juvenile record and introduced evidence of that record at sentencing. Having invited any error, he cannot now complain. Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310, 31 OBR 587, 511 N.E.2d 106. The trial jury properly considered the defense evidence. See discussion of Wilson's fifth proposition of law, infra.

However, we agree that the trial court in its sentencing opinion improperly injected Wilson's juvenile record into the weighing process as a nonstatutory aggravating circumstance. In justifying the death penalty, and explaining why the aggravating circumstance outweighed mitigating factors, the trial court stated: “Defendant's total disregard for the suffering of his victim(s) in the present case and in his juvenile adjudication finding him delinquent by reason of involuntary manslaughter. * * * Defendant's actions in both cases support the aggravating circumstance in that defendant acted in order to prevent the victim from seeking assistance in order to avoid detection, apprehension, trial or punishment.” The court of appeals recognized the trial court's error and took appropriate corrective action by independently reassessing the sentence.

Wilson now challenges the authority of the court of appeals to reassess the sentence under the circumstances. Wilson argues that appellate reweighing is limited to situations where an aggravating circumstance has been subsequently ruled invalid under the Eighth Amendment. His argument lacks logic and is not based on precedent. “The independent weighing process at each appellate level * * * provides a procedural safeguard against the arbitrary imposition of the death penalty.” State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831, paragraph two of the syllabus. We have upheld appellate reweighing in varied situations. See State v. Combs (1991), 62 Ohio St.3d 278, 286, 581 N.E.2d 1071, 1079; State v. Landrum, 53 Ohio St.3d at 124, 559 N.E.2d at 729. This court has specifically used appellate reweighing to correct errors in a trial court's sentencing opinion. See State v. Fox (1994), 69 Ohio St.3d 183, at 190-192, 631 N.E.2d 124, at 130-131; State v. Lewis (1993), 67 Ohio St.3d 200, 204, 616 N.E.2d 921, 925; State v. Lott (1990), 51 Ohio St.3d 160, 169-170, 555 N.E.2d 293, 303-304; State v. Maurer, 15 Ohio St.3d at 246-247, 15 OBR at 385-386, 473 N.E.2d at 777-778. Thus, we reject Wilson's second proposition of law.

In his third proposition of law, Wilson argues that the trial court erred in instructing the jury, over objection, that “[m]itigating factors are factors that, while they do not justify or excuse the crime * * *, may be considered by you as extenuating, lessening, weakening, excusing to some extent, or reducing the degree of the Defendant's blame or culpability.” (Emphasis added.)

We agree that the trial court erred in referring to only “blame or culpability” when explaining mitigating factors. As State v. Holloway held at paragraph one of the syllabus, “Mitigating factors * * * are not necessarily related to a defendant's culpability but, rather, are those factors that are relevant to the issue of whether an offender convicted under R.C. 2903.01 should be sentenced to death.” However, instructions must be considered as a whole, not in isolation. State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772. When considered in context, the trial court's instructions adequately informed the jury as to the relevant mitigating factors it must consider. The court told the jury that the “mitigating factors which you are to weigh include but are not limited to the youth of the offender; any other factor raised by the Defendant which may include, but is not limited to, that the Defendant is the product of a dysfunctional family; alcoholism; ability to adjust to a structural environment in an institutional setting; the Defendant's confession.

“Likewise, the existence of any of the mitigating factors does not preclude or prevent the imposition of a sentence of death if you find that the aggravating circumstance still outweighs the mitigating factors by proof beyond a reasonable doubt. “If, after a full and impartial consideration of all the relevant evidence * * * you are firmly convinced that the aggravating circumstance * * * outweighs the factors in mitigation, beyond a reasonable doubt, then the state has met its burden of proof * * *. “If, on the other hand, you are not firmly convinced that the aggravating circumstance * * * outweighs the factors in mitigation, beyond a reasonable doubt, then the State has not met its burden of proof and the sentence of death shall not be imposed.”

Under the circumstances, we find no material prejudice resulted from use of the words “blame” or “culpability.” Taken as a whole, the jury instructions indicate that the penalty phase was to determine Wilson's punishment, not just to assess his blame or culpability. See State v. Woodard, 68 Ohio St.3d at 77, 623 N.E.2d at 80. The arguments of counsel reflected that view. Additionally, our independent sentence reassessment eliminates the effect of this error. See State v. Landrum, 53 Ohio St.3d at 124, 559 N.E.2d at 729; State v. Holloway, 38 Ohio St.3d at 242, 527 N.E.2d at 835. Contrary to Wilson's arguments in proposition of law twenty-three, the trial court did not err in refusing to instruct on mercy. State v. Lorraine, 66 Ohio St.3d at 417, 613 N.E.2d at 216; State v. Landrum, 53 Ohio St.3d at 123, 559 N.E.2d at 728.

In his fifth proposition of law, Wilson argues that prosecutorial misconduct denied him a fair penalty determination. First, Wilson argues that the prosecutor improperly introduced Wilson's juvenile record into evidence and improperly cross-examined defense witnesses about that record. Wilson's argument obscures what occurred at trial.

Before trial, the prosecutor stated that he might use Wilson's prior juvenile record “to cross-examine them [defense witnesses] regarding their knowledge of his record.” Such a comment in a pretrial conference does not constitute use of the evidence before the jury. In fact, the record is clear that Wilson, as part of a reasoned defense strategy, disclosed his juvenile record in his opening statement at the sentencing proceedings and questioned his own witnesses about that juvenile record.

Wilson's mitigation strategy involved numerous witnesses' testifying about his childhood. His juvenile record featured prominently in his mitigation case. Wilson was incarcerated at age fourteen, spent two years in institutions, and then lived in a foster home. Wilson's “personality disorder” diagnosis depended upon a juvenile record. According to Wilson, his father's alcoholism and neglect directly caused his juvenile record.

Having introduced the evidence himself, Wilson cannot now complain because the prosecutor cross-examined witnesses about his juvenile record or mentioned it in argument. See State v. Montgomery, 61 Ohio St.3d at 418, 575 N.E.2d at 173. “A party cannot take advantage of an error he invited or induced.” State v. Seiber (1990), 56 Ohio St.3d 4, 17, 564 N.E.2d 408, 422.

Wilson's remaining prosecutorial misconduct arguments also lack merit. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. “[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.” United States v. Hasting (1983), 461 U.S. 499, 508-509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96, 106.

The prosecutor's cross-examination about people who kill strangers and Wilson's possible future conduct was not improper given Wilson's attempt to present himself as not dangerous when he was off alcohol. Wilson also did not always object so as to preserve any error. The prosecutor could discredit favorable defense childhood testimony by cross-examining witnesses about Wilson's childhood vandalism.

Since Wilson first presented evidence that he adjusted well to imprisonment, the prosecution could properly cross-examine a defense witness about Wilson's attempt to escape from custody. The limited victim-impact testimony of Lutz's mother did not violate constitutional guarantees. Mrs. Lutz expressed no opinion about the penalty. Payne v. Tennessee (1991), 501 U.S. 808, 830, 111 S.Ct. 2597, 2611, 115 L.Ed.2d 720, 739, at fn. 2; State v. Fautenberry (1995), 72 Ohio St.3d 435, 438, 650 N.E.2d 878, 881-882; see State v. Lorraine, 66 Ohio St.3d at 420-421, 613 N.E.2d at 218-219.

Prosecutorial characterization of Wilson as a “walking time bomb” was not unreasonable under the testimony given. Prosecutors can be “colorful or creative.” State v. Brown (1988), 38 Ohio St.3d 305, 317, 528 N.E.2d 523, 538. Prosecutors can urge the merits of their cause and legitimately argue that defense mitigation evidence is worthy of little or no weight. The prosecutor did not err by arguing that others with deprived childhoods do not necessarily commit such crimes. See State v. Murphy (1992), 65 Ohio St.3d 554, 570-571, 605 N.E.2d 884, 899; State v. Richey (1992), 64 Ohio St.3d 353, 370, 595 N.E.2d 915, 929. The trial court's sentencing instructions cured any asserted prosecutorial misstatements of law. State v. Greer (1988), 39 Ohio St.3d 236, 251, 530 N.E.2d 382, 400.

With respect to Wilson's allegations about prosecutorial misconduct, we find that such misconduct did not permeate the trial, and that Wilson received a fair trial, if not a perfect one. Compare State v. Landrum, 53 Ohio St.3d at 110-112, 559 N.E.2d at 716-718; State v. Johnson (1989), 46 Ohio St.3d 96, 101-103, 545 N.E.2d 636, 642-643. We therefore reject Wilson's fifth proposition of law.

In his seventh proposition of law, Wilson argues that the trial court erred in failing “to consider and give effect to his relevant mitigating evidence.” Wilson argues that the trial court's sentencing opinion did not give appropriate mitigating weight to his alcoholism, confession, adaptation to incarceration, and youth. However, the sentencing opinion shows that the court did consider all asserted mitigating factors. “[T]he assessment and weight to be given mitigating evidence are matters for the trial court's determination.” State v. Lott, 51 Ohio St.3d at 171, 555 N.E.2d at 305. “[E]vidence of an offender's history, background and character which the * * * trial court * * * considered, but did not find to be mitigating, need be given little or no weight against the aggravating circumstances.” State v. Stumpf, 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus. See, also, State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph two of the syllabus.

The trial court's sentencing opinion indicates that the court correctly understood the weighing process and the prosecution's burden of proof. The court of appeals had earlier recognized and corrected the only notable error. Any imprecision in the trial court's opinion, as well as the minor mistake regarding the accused's age, was inconsequential. Also, our independent reassessment of the sentence cures any arguable error. State v. Lott, supra. Thus, we reject Wilson's proposition of law seven.

Wilson, in proposition of law twenty-six, argues that the trial court erred in imposing prison sentences along with the death penalty. That claim lacks merit. State v. Campbell (1994), 69 Ohio St.3d 38, 52, 630 N.E.2d 339, 352. In addition, Wilson cannot now complain since he failed to object at trial. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.

VII INDEPENDENT SENTENCE ASSESSMENT

In proposition of law six, Wilson argues that the death sentence is inappropriate for him. After independent assessment, we find that the evidence proves, beyond a reasonable doubt, the aggravating circumstance charged against Wilson, i.e., that he killed Lutz “for the purpose of escaping detection, apprehension, trial, or punishment” for kidnapping Lutz. R.C. 2929.04(A)(3). We find nothing in the nature and circumstances of the crimes themselves to be mitigating.

Wilson's history and background do provide some mitigating features. Until he was fourteen, Wilson suffered at the hands of a tyrannical, alcoholic father, who alternatively teased, beat, and neglected his sons. His mother could do little and ultimately abandoned him to his father. At fourteen, Wilson was adjudged delinquent, spent two years in an institutional setting, and then lived successfully in a foster home for four years. Undoubtedly, Wilson's “personality disorders” resulted in part from that deprived childhood. We find all of this entitled to some weight. However, its significance is undercut by the fact that, at about age seventeen, Wilson had an opportunity for a fresh start in life, in a loving home, and he failed to follow through successfully. We find nothing in Wilson's character to be mitigating.

We accord appropriate weight to the statutory mitigating factor of age. See R.C. 2929.04(B)(4). Wilson was twenty-one at the time of the offense. No other statutory mitigating factor in R.C. 2929.04(B)(1)-(3), (B)(5), or (B)(6) is raised by the evidence or applicable. As to R.C. 2929.04(B)(7), “other factors,” Wilson's anti-social and borderline personality disorders, his alcoholism, his confession, and his adaptation to confinement collectively deserve some weight. However, Wilson confessed only after he was identified and taken into custody, and thus his confession is entitled to little weight. Personality disorders are often accorded little weight because they are so common in murder cases. Alcoholism is of little mitigating value here because, as we have previously discussed, Wilson's claim that he was drunk when he killed Lutz does not hold up under examination.

In this case, the aggravating circumstance outweighs the combined mitigating factors beyond a reasonable doubt. Wilson acted in the full light of the afternoon, hours after waking up and thinking about his options. When weighed against this aggravating circumstance, the mitigating factors-his history, background, youth, alcoholism, and the “other factors” cited-are of minor consequence.

The death penalty is both appropriate and proportionate when compared with similar capital cases. State v. Lawson (1992), 64 Ohio St.3d 336, 595 N.E.2d 902; State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491; State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598.

The judgment of the court of appeals is affirmed.

State v. Wilson, Slip Copy, 2009 WL 1410733 (Ohio App. 9 Dist. 2009) (PCR)

MOORE, Presiding Judge. *1 {¶ 1} Appellant, Daniel Wilson, appeals from the judgment of the Lorain County Court of Common Pleas. This Court affirms.

I.

{¶ 2} The procedural history of this case is long and complicated. The following facts provide an overview of the factual and procedural history necessary to understand the discussion of the narrow issues that follow.

{¶ 3} Appellant, “Daniel Wilson, killed Carol Lutz by locking her in the trunk of her car, puncturing the gas tank, and setting the car on fire. Wilson then walked away, allowing Carol Lutz to be baked alive.” State v. Wilson (1996), 74 Ohio St.3d 381, 381. Wilson was indicted on three aggravated murder counts: aggravated murder by prior calculation and design; felony-murder (kidnapping); and felony-murder (aggravated arson). Each aggravated murder count had three death specifications. Specification one charged murder to escape “detection, apprehension, trial, or punishment” for kidnapping; specification two charged murder during kidnapping; and specification three charged murder during an aggravated arson. Wilson was also indicted for kidnapping and aggravated arson. Id. at 383.

{¶ 4} At trial, Wilson claimed intoxication as a defense. The jury found Wilson guilty on all counts. At the penalty phase, the State elected to proceed to sentencing only on the prior calculation and design count and only on the first death specification, evading detection or punishment for another offense in violation of R.C. 2929.04(A)(3). For purposes of sentencing, neither the trial court nor the jury considered the other aggravated murder counts or death specifications. Id. at 383. Following the penalty phase, Wilson was sentenced to death.

{¶ 4} Wilson appealed to this Court, which affirmed, State v. Wilson (Oct. 12, 1994), Lorain App.No. 92CA005396, and to the Ohio Supreme Court, which also affirmed. Wilson (1996), 74 Ohio St.3d 381. Relevant to the matter currently before this Court, the Ohio Supreme Court held that the trial court improperly instructed the jury during the guilt phase of the trial because the instruction on intoxication shifted the burden of proof from the State to Wilson. Id. at 394. The Supreme Court, however, found the error to be harmless. Id.

{¶ 5} Wilson then pursued other remedies. This Court affirmed the trial court's denial of his petition for postconviction relief. State v. Wilson (1998), Lorain App.No. 97CA006683. This Court also denied Wilson's motion to reopen his direct appeal. Wilson then sought federal habeas corpus relief.

{¶ 6} The United States District Court denied Wilson's petition for writ of habeas corpus. The Sixth Circuit Court of Appeals affirmed the District Court's judgment. Wilson v. Mitchell (C.A. 6 2007), 498 F.3d 491. The Sixth Circuit reviewed a number of claims, but its analysis of the jury instruction claim prompted Wilson to return to state court to again seek postconviction relief and to move for resentencing.

{¶ 8} In his federal habeas corpus action, Wilson argued that the intoxication jury instruction improperly shifted the burden of proof to him and that this error was not harmless. Id. at 499. The Sixth Circuit reviewed the instruction and the Ohio Supreme Court's analysis of it in Wilson's direct state appeal. Id. at 499-502. The Sixth Circuit considered this argument as it related not only to the guilt-phase instruction-as reviewed by the Ohio Supreme Court-but also as it related to the penalty-phase. Id. at 499. One sentence of the Sixth Circuit's decision forms the basis of Wilson's claims: “Instead, we assume that the instruction was erroneous with regard to the evading-kidnapping specification and address whether it was harmless .” Id. at 501.

{¶ 9} In his petition for postconviction relief, and on appeal to this Court, Wilson argues that the Sixth Circuit's decision invalidated the only aggravating circumstance presented to the sentencing jury and, therefore, he is no longer eligible for the death penalty. Wilson further argues that the Sixth Circuit's decision is a new “fact” that he was unavoidably presented from discovering so that he may be permitted to file a successive, untimely petition for postconviction relief. R.C. 2953.23(A)(1)(a).

{¶ 10} Wilson also moved for resentencing. The trial court combined the motion for resentencing and petition for postconviction relief and considered them as one petition for postconviction relief. Wilson's resentencing argument, however, was that the Sixth Circuit invalidated the sole aggravating circumstance the jury considered so that he is no longer eligible for the death penalty. Wilson argued that he is now subject to a void sentence and the trial court always has jurisdiction to correct a void sentence.

{¶ 11} The trial court denied Wilson's petition and motion. Wilson filed two separate appeals, one challenging the denial of his petition for postconviction relief and another challenging the trial court's failure to resentence him. This Court consolidated the appeals. We first address the denial of the petition for postconviction relief and then consider the motion for resentencing.

II.

A. Postconviction Relief Appeal

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY DISMISSING THE APPELLANT'S SUCCESSOR PETITION FOR POSTCONVICTION RELIEF PURSUANT TO R.C. 2953.21 AS WILSON MET THE GATEWAY REQUIREMENTS OF R.C. 2953.23(A)(1).

{¶ 12} Wilson argues that he met the requirements to file a successor postconviction relief petition. We do not agree.

{¶ 13} R.C. 2953.21 authorizes a person convicted of a criminal offense to petition the trial court to set aside the judgment or sentence. R.C. 2953.23 imposes limitations on a person's ability to seek postconviction relief:

“(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:

“(1) Both of the following apply: “(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, * * *. “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.”

Wilson acknowledges that he filed a successive petition for postconviction relief. He further recognizes that he must meet the requirements of R.C. 2953.23(A)(1) to proceed or the trial court could not consider the petition.

{¶ 14} Wilson argues that the Sixth Circuit's decision is a new “fact” upon which he relies to present his claim for relief. According to Wilson, therefore, he falls under R.C. 2953.23(A)(1)(a) to allow the trial court to consider his successive petition.

{¶ 15} The Sixth Circuit's decision is not a “fact” within the meaning of R.C. 2953.23(A)(1)(a). The court did not make a factual finding in deciding his appeal. Rather, the Sixth Circuit's decision is based on facts that were available to Wilson and that Wilson argued in his initial state appeals. While the Sixth Circuit may have analyzed those facts in a different way than the Ohio Supreme Court, that does not mean that Wilson was unavoidably prevented from discovering the facts upon which he relies.

{¶ 16} Furthermore, we question Wilson's reading of the Sixth Circuit's decision. Wilson cited to the last sentence of a paragraph to support his argument in the trial court and in this Court. Reviewing the entire paragraph, however, puts the last sentence in context:

“We are not certain that an error regarding the knowledge element of a kidnapping offense necessarily translates into an error regarding the knowledge element of an evading-kidnapping specification. In other words, one might say it is conceivable that a person could lack the requisite knowledge to commit kidnapping, yet have the requisite knowledge to commit murder to evade detection for kidnapping-for example, where the person believes he has committed kidnapping (but actually has not, perhaps because of earlier intoxication), and then commits murder to evade detection for the kidnapping he (erroneously) believes took place. But we do not decide this question. Instead, we assume that the instruction was erroneous with regard to the evading-kidnapping specification and address whether it was harmless.” (Emphasis sic.) Wilson, 498 F.3d at 501.

This paragraph begins with the Sixth Circuit's recognition of its uncertainty that there even was an error that affected the specification. The paragraph concludes by assuming there was an error in order to address whether that assumed-error was harmless. Assuming the existence of an error for purposes of harmless error review is not the same as deciding, as a factual matter, that the instruction was erroneous and that Wilson's constitutional rights were violated. Assuming the existence of an error does not create a “fact” and it is not tantamount to a finding of fact. The Sixth Circuit reached a legal conclusion-that the assumed error was harmless-based on facts that were available in the record from the time of the trial.

{¶ 17} Wilson cannot show that he was unavoidably prevented from discovery of facts upon which he must rely to present the claim for relief, as required by R.C. 2953.23(A)(1)(a). Thus, he failed to meet the requirements of R.C. 2953.23(A)(1) to file a successive petition. The trial court properly denied the petition for postconviction relief. The assignment of error is overruled.

B. Motion for Resentencing Appeal

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY FAILING TO RESENTENCE THE APELLANT FOR A CONVICTION OF AGGRAVATED MURDER WITHOUT A CAPITAL SPECIFICATION.

{¶ 18} Wilson argues that the trial court erred because it failed to resentence him. We do not agree.

{¶ 19} Wilson moved for resentencing because, according to his argument, the Sixth Circuit held that the sole aggravating specification was invalid, making his death sentence void. Following a hearing on the motion to resentence in the Common Pleas Court, Wilson petitioned for postconviction relief, as the trial court had suggested. Following a second hearing on both the motion and the petition, the Common Pleas Court issued one journal entry that addressed the motion and petition together. As noted earlier, Wilson filed two separate appeals, one challenging the trial court's decision on the postconviction petition addressed above, and one challenging the trial court's ruling on his motion for resentencing, which we address now.

{¶ 20} Wilson succinctly stated his position in an overview of his argument: “Ohio trial courts have always maintained jurisdiction to correct an illegal sentence. If the burden-switching instruction was constitutional error, the capital specification was invalid. Without a valid statutory aggravating factor, the death penalty is no longer a legal sentence. Thus, the trial court maintains the inherent jurisdiction to correct the sentence.” (Wilson's Brief at 7-8).

{¶ 21} We agree with Wilson's legal premise. The Ohio Supreme Court has held that “[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” State v. Beasley (1984), 14 Ohio St.3d 74, 75. The Supreme Court has applied this standard a number of times in recent years. See, e.g., State v. Boswell, Slip Op.No.2009-Ohio-1577; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197; and State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642.

{¶ 22} Although we agree with Wilson's statement of the law about void sentences, we disagree with its application in this case. As we discussed when reviewing his postconviction appeal, we do not agree with Wilson's argument that the Sixth Circuit Court of Appeals invalidated the aggravating circumstance that supported imposition of the death penalty. The Sixth Circuit assumed, for purposes of harmless error analysis, that there was error, but it did not decide-either as a matter of fact or as a matter of law-that there was error.

{¶ 23} The Sixth Circuit did not decide that Wilson's sentence was void because of an invalid aggravating circumstance. As that was the sole basis of his argument, Wilson failed to demonstrate that his sentence is void. Accordingly, the trial court lacked jurisdiction to consider his motion for resentencing. The assignment of error is overruled.

III.

{¶ 24} Wilson's assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

WHITMORE, J. and BELFANCE, J., concur.

Wilson v. Mitchell, 498 F.3d 491 (6th Cir. 2007) (Habeas)

Background: Following affirmance on appeal of defendant's conviction for murder, kidnapping, and aggravated arson, and imposition of death penalty, 74 Ohio St.3d 381, 659 N.E.2d 292, defendant filed petition for writ of habeas corpus. The United States District Court for the Northern District of Ohio, David D. Dowd, Jr., J., denied petition, and appeal was taken.

Holdings: The Court of Appeals, R. Guy Cole, Jr., Circuit Judge, held that: (1) trial court's error, if any, in giving instruction regarding intoxication defense, shifting to defendant the burden to disprove the knowledge element of the evading-kidnapping aggravator, was harmless; (2) state's alleged failure to disclose a psychological report by department of youth services psychologist until defendant's expert witness was on the stand was not material; and (3) jury instruction during the penalty phase of capital murder trial that defendant's unsworn statement was not evidence did not violate due process. Affirmed.

R. GUY COLE, JR., Circuit Judge.

Petitioner-Appellant Daniel Wilson seeks habeas relief from his conviction and death sentence for the murder of Carol Lutz. After a night of drinking, Wilson put Lutz into the trunk of her car and eventually set the car on fire, killing her. The jury convicted Wilson and found three capital specifications making him eligible for the death penalty: (1) murder committed to escape detection for kidnapping; (2) murder during kidnapping; and (3) murder during aggravated arson. The prosecution proceeded to the penalty phase relying on only the first (evading-kidnapping) specification as an aggravator, and the jury sentenced Wilson to death. Wilson now raises five claims for habeas relief; the strongest is his claim that the trial court's instruction regarding his intoxication defense improperly shifted to Wilson the burden to disprove the knowledge element of the evading-kidnapping aggravator. We conclude, for reasons other than those relied on by the district court, that any error in this regard was harmless. We further conclude that Wilson's remaining claims are without merit. Accordingly, we AFFIRM the district court's denial of habeas relief.

I. BACKGROUND

A. Facts

In Elyria, Ohio, on Saturday, May 4, 1991, around 1:30 p.m., Wilson killed Carol Lutz by locking her in the trunk of her car, puncturing the gas tank, and setting the car on fire.FN1 Wilson then walked away, allowing Lutz to burn to death.

On the previous afternoon, Wilson was drinking at the Empire Tavern, a bar he frequented. Between 5:00 and 6:00 p.m., he went to the home of Angie Shelton, a girl he dated, and an argument ensued. As they argued, Wilson got angry, slammed her against the wall, threw her on the bed, and went to hit her. Shelton told him that if he hit her, she “would be the last person that he hit.” Wilson then left, and later returned to the Empire Tavern.

That evening, Carol Lutz drove her 1986 Oldsmobile Cutlass to the Empire Tavern to meet Douglas Pritt, an old boyfriend, and Wilson, apparently a new friend. Pritt, Lutz, and Wilson played pool and drank together. Pritt left the bar sometime between 12:30 a.m. and 1:00 a.m. Lutz and Wilson left close to 2:30 a.m. According to Wilson's confession, Lutz offered him a ride home. She drove with him to the trailer where he lived. Once there, she came in with him and they drank a couple of beers. Wilson vaguely recalled driving to Lorain, Ohio, to search for a party and stopping at his father's house.

Darlene DeBolt, a service-station cashier in Stow, Ohio, stated that Wilson stopped at the station around 5:55 a.m. on May 4. He was driving a black Oldsmobile Cutlass and appeared to be alone. DeBolt did not hear any suspicious noise coming from the Oldsmobile. Wilson told DeBolt, an old friend, that the car was his, that he had just driven from Canada, and that he “stopped a few states back for a few beers.” DeBolt smelled alcohol on him. Wilson tried to get DeBolt to go out with him and was “persistent and pushy.” DeBolt refused to leave work and, after sixty or ninety minutes, Wilson left.

When Wilson woke up later that morning, around 7:30 or 8:00 a.m., he was in a parking lot, sitting in the driver's seat of Lutz's Oldsmobile. Lutz, who was locked in the trunk, asked him to let her out, but he refused. Wilson could not recall how she got there. He drove to various places, including a park where he took a walk. Wilson stated that he remembered thinking, “How am I going to get out of this?” Throughout this time, Lutz remained locked in the trunk.

Still later that morning, Wilson drove to a school and parked the Oldsmobile. After a while he took off the gas cap, stuffed a rag in the open neck of the gas tank, and lit the rag, but the fire burned out. Lutz told him “she really had to go to the bathroom.” He “took the rag back out” of the gas tank and “let her [out to] go to the bathroom.”

When he “told her to get back” in the trunk, “she stood there-she begged and pleaded with [Wilson]. She begged-she'd turn around for 30 seconds and let [Wilson] run like hell.” Lutz told Wilson, “she'd go home and forget about it.” Wilson did not believe her and thought to himself, “How can you forget about being locked in a trunk?” Wilson stated that he did not leave her in the trunk because he “figured somebody would find her.... She'd get out and tell who I was.”

When Wilson told her to get back in the trunk a second time, she complied. She sat in the trunk for fifteen to twenty minutes with the lid up. They talked, and Wilson said “she asked me why don't I just let her go?” He “even gave her a cigarette.” Then he closed the trunk lid, “poked a hole in the gas tank,” stuffed a towel or blanket into the gas tank, “let it soak with gas ... and ... lit it.” Then he “walked away from the car” and went to a nearby park.

While out driving that day, Janette Patton and her mother noticed smoke and saw Lutz's Oldsmobile enveloped in fire. After fire personnel extinguished the fire, they forced open the Oldsmobile's trunk, revealing Lutz's body. She died from third-degree burns and carbon monoxide poisoning. An arson investigator estimated that the flames could have heated the trunk to over 550 degrees, which could cause combustibles there to ignite and catch fire. There were no holes in the trunk, but there was a puncture in the gas tank. Investigators found a gas cap under the driver's seat and a tire iron and cross bar in the back seat. Several samples of materials taken from inside the car tested positive for kerosene.

Police detective Ray Riley traced the car to Carol Lutz and learned that she had last been seen with Wilson at the Empire Tavern. On May 9, police took Wilson into custody. Riley interviewed Wilson after advising him of his Miranda rights. Wilson waived his rights and agreed to talk with the police. Riley tape recorded the interview. Wilson confessed to locking Lutz in the Oldsmobile's trunk intermittently from 7:30 a.m. on May 4 until the time of her death. And he admitted that at approximately 1:30 p.m., he killed her by setting the Oldsmobile ablaze.

The grand jury indicted Wilson on three aggravated-murder counts. Count I charged aggravated murder by prior calculation and design; Count II charged felony murder, predicated on kidnapping; and Count III, as amended, charged felony murder, predicated on aggravated arson. Each murder count had three death specifications, which if found by the jury would make Wilson eligible for the death penalty.FN2 Specification one charged murder to escape “detection, apprehension, trial, or punishment” for kidnapping; specification two charged murder during kidnapping; and specification three charged murder during an aggravated arson. Wilson was also indicted for kidnapping (Count IV) and aggravated arson (Count V).

FN2. The Ohio Supreme Court refers to the death “specifications” when discussing both (1) eligibility factors (the factors a jury must find to make the defendant eligible for the death sentence); and (2) aggravating factors (the factors the jury must weigh during the penalty phase to determine whether the defendant should actually receive the death sentence).

Wilson defended himself at trial by claiming intoxication and lack of prior calculation and design. The jury found Wilson guilty on all counts.

At the penalty phase, the prosecutor elected to proceed to sentencing on only Count I (aggravated murder by prior calculation and design) and specification one (evading detection or punishment for another offense (kidnapping) in violation of Ohio Revised Code (O.R.C.) § 2929.04(A)(3)). Accordingly, neither the court nor jury considered the other two murder counts or the felony-murder death-penalty specifications in assessing the penalty.

At the outset of the defense's penalty-phase case, a forensic toxicologist explained the effect that alcoholism has on a person's body, mind, and behavior. Wilson's mother, younger brother, grandfather, and aunt testified as to Wilson's childhood.

The witnesses explained that Wilson's alcoholic father brutalized his wife and three sons throughout Wilson's childhood. Wilson's father would lock his sons in their bedroom at night and refuse to let them out, even to go to the bathroom. The father teased and belittled his sons. In drunken rages, Wilson's father would call his sons, “liars, cheats, and thieves,” accuse them of stealing things he could not find, and hit them on their bare backsides with a leather belt. Wilson's mother, Linda Wilson, testified that her husband frequently slapped and terrorized her. When Wilson was twelve, he was arrested for vandalizing a friend's house. A year or so later, his mother moved out of the family home. She took Wilson's younger brother Donald with her, and left Wilson and his other brother David with their father.

Wilson's father did not properly care for his sons, even failing to buy food. Wilson and David were forced to steal to survive. They regularly broke into neighbors' homes to steal food or money. When he was fourteen years old, Wilson broke into an elderly neighbor's home. When the neighbor surprised him, Wilson struck the elderly man, causing him to fall and break his hip. Wilson then ripped the phone cord out of the wall and left. The neighbor was not found for two days and died as a result of his injuries and the lack of medical attention.

A juvenile court adjudged Wilson delinquent by reason of involuntary manslaughter and remanded him to the custody of the Ohio Department of Youth Services. Wilson spent one year in a state facility for serious offenders, and then was sent to a halfway house. He fared well at both facilities. Although Wilson was initially reluctant to accept responsibility for his neighbor's death, he eventually did.

Days before turning seventeen years old, Wilson went to live with Shirley Spinney, a foster parent. Wilson adjusted well to living with Spinney. He graduated from high school, with a B average, and worked part-time while in school. After high school, Wilson continued to live with Spinney even after his release from the custody of Youth Services. Wilson attended college for two semesters while continuing to work. Spinney described Wilson as incredibly compassionate, sensitive, and considerate. Ultimately, Spinney discovered that Wilson had a serious drinking problem. At times, he went out and got very drunk, would telephone her, and she would pick him up and take him home.

In 1988, Spinney's other foster child, Mark, was killed in an accident. Wilson was devastated by Mark's death and he began to drink more heavily. Wilson's girlfriend noted that Mark's death had a strong impact on Wilson and that he seemed like a different person when he was drinking. The next year, Wilson left Spinney's home to live with friends. He next moved in with his mother and grandfather, sleeping in a camper behind their house. While there, he attempted to expunge his juvenile record and made plans to join the Navy.

In an unsworn statement presented at trial, Wilson asserted that his father “could do no wrong” in Wilson's eyes. In spite of all the terrible things his father had done, he liked his father and spent a lot of time with him. Wilson described his juvenile arrest and his incarceration. He also described Spinney's positive influence and the progress he made while living with her. Wilson stated that after Mark died, Wilson gave up on life. He denied that he “intended to hurt” Lutz, and said, “I still do not know why I reacted the way I did.” He “would like to say to her family [he is] sorry.” Wilson said he did not want to die, and asked for another chance at life.

Wilson's expert witness, psychologist James Eisenberg, examined Wilson and concluded that Wilson is above average in intelligence and has difficulty becoming emotionally involved with others. Further, Wilson's lifestyle was marked by “strong dependency needs, maladjustment, and chaos.” He suffered from alcohol dependence and a “mixed personality disorder with borderline and antisocial features.” According to Eisenberg, Wilson was the product of a “classic dysfunctional family marked by physical, emotional and psychological abuse,” but he still identified with his father, not his battered mother. Wilson knew right from wrong, his ability to conform to the law was not impaired, and he could adjust and function in an institutional setting.

In rebuttal, Martha Lutz, Carol's mother, testified about the devastating impact of Carol's death on the family. They had been very close and had done many things together, including shopping together frequently. Martha stated that she has a “broken heart that's never going to heal” and misses Carol a lot, since “she was [her] only daughter.”

The jury recommended the death penalty. The trial court agreed and sentenced Wilson to death for aggravated murder (based on the evading-kidnapping aggravator) and to imprisonment for the kidnapping and aggravated arson.

B. Procedural History

On October 12, 1994, the state court of appeals on direct appeal affirmed, Wilson's convictions and death sentence. Wilson v. Mitchell, No. 1:99-cv-0007, slip. op. at 5 (N.D.Ohio Jan. 14, 2003) (discussing state appeals). On January 24, 1996, the Ohio Supreme Court affirmed. Id. at 13.

On January 3, 1997, the trial court rejected Wilson's petition for postconviction relief. Id. at 18. On June 24, 1998, the court of appeals affirmed. Id. at 20. On November 4, 1998, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question. Id. at 22.

After filing his petition for postconviction relief on September 20, 1996, Wilson filed a motion to reopen his appeal ( Murnahan application) on December 12, 1996. Id. at 22. The court of appeals denied this application as untimely on January 19, 1997. On October 22, 1997, the Ohio Supreme Court affirmed.

On July 2, 1999, Wilson filed a petition for habeas corpus relief in the district court. Id. at 27. On January 14, 2003, the district court denied relief. Id. at 121. The district court also granted a certificate of appealability as to one of Wilson's claims (Claim 10: improper burden shifting on voluntary-intoxication defense). Id. On February 12, 2003, the district court partially granted Wilson's motion to alter or amend judgment and issued a certificate of appealability as to four additional claims. On April 4, 2005, we partially granted Wilson's motion for a certificate of appealability, granting the certificate as to a portion of one additional claim. Thus, Wilson was granted a certificate of appealability as to six issues, and he now raises five of them.

II. DISCUSSION

A. Standard of Review

We review de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir.2006) (citing Burton v. Renico, 391 F.3d 764, 770 (6th Cir.2004)). Because Wilson filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), its provisions apply to his case. Id. (citing Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), and Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).

Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a “claim that was adjudicated on the merits in State court proceedings” if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A habeas petition may also be granted if the state court's decision “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)(2). A state-court decision is contrary to clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision is an unreasonable application of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case,” id. at 407-08, 120 S.Ct. 1495 or if it “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir.2000).

B. Procedural Considerations

A petitioner seeking a writ of habeas corpus must meet certain procedural requirements to permit federal review of his habeas claims. Smith v. Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 431 (6th Cir.2006). The petitioner must first exhaust the remedies available in state court by fairly presenting his federal claims to the state courts; unexhausted claims will not be reviewed by a federal court. Id. (citing Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004), and Lott v. Coyle, 261 F.3d 594, 601 (6th Cir.2001)). The exhaustion “requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's claims.” Lott, 261 F.3d at 608 (internal quotation marks and citation omitted). A federal court will not review claims that were not entertained by the state court due to the petitioner's failure to (1) raise those claims in the state courts while state remedies were available, or (2) comply with a state procedural rule that prevented the state courts from reaching the merits of the claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.2006).

For noncompliance with a state procedure to serve as a bar to habeas review, the state procedure must satisfy the standards set forth in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Smith v. Ohio Dep't, 463 F.3d at 431. First, there must be a state procedure in place that the petitioner failed to follow. Maupin, 785 F.2d at 138. Second, the state court must have actually denied consideration of the petitioner's claim on the ground of the state procedural default. Id. Third, the state procedural rule must be an “adequate and independent state ground” to preclude habeas review. Id. This inquiry “generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Id. A state procedural rule must be “ ‘firmly established and regularly followed’ ” to constitute an adequate basis for foreclosing habeas review. Deitz, 391 F.3d at 808 (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). A state procedural rule is an independent ground when it does not rely on federal law. Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If these three factors are satisfied, the petitioner can overcome the procedural default by either “demonstrat[ing] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrat[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750, 111 S.Ct. 2546.

C. Wilson's Claims

Wilson raises five claims: (1) the erroneous instruction regarding voluntary intoxication was not harmless error; (2) the prosecution violated Brady v. Maryland by failing to disclose a Youth Services report to Wilson's expert, Dr. Eisenberg, until Dr. Eisenberg was on the stand; (3) a juror was improperly excluded; (4) the trial court improperly instructed the jury regarding Wilson's unsworn statement; and (5) Wilson's appellate counsel was ineffective for failing to raise the Brady claim on direct appeal. We discuss each of these claims in turn.

1. Impermissible Burden Shifting on Voluntary-Intoxication Defense

The capital specification used against Wilson in the penalty phase of his trial alleged that he killed to avoid apprehension or detection and future trial for the offense of kidnapping. The Ohio Supreme Court concluded that the trial court-in the guilt phase-improperly shifted the burden to Wilson to prove that he lacked the specific intent, due to intoxication, to commit kidnapping. The Ohio Supreme Court held, however, that this error was harmless. The Ohio Supreme Court conducted harmless-error analysis with respect to the kidnapping charge only; it did not conduct any harmless-error review of the evading-kidnapping death specification, which incorporated the identical burden-shifting instruction of the kidnapping charge from the guilt phase. The district court also concluded, for different reasons, that the error was harmless. Wilson challenges these rulings, and the State admits that Wilson properly preserved this claim for habeas review.

As mentioned, at the penalty phase of the trial, the State elected to proceed only on Count I (murder by prior calculation and design) and specification one (evading detection or punishment for kidnapping). The trial court instructed the jury to refer to the definition of kidnapping in the instructions regarding the kidnapping count when determining whether this capital specification existed. (Joint Appendix (“JA”) 1268 (explaining that, as to specification one to count one, “[t]he offense of kidnapping is defined for you in Count Four [kidnapping] of this charge”).) Those instructions, in turn, included instructions regarding the voluntary-intoxication defense:

For purposes of Count Four [kidnapping], and any count or specification where Kidnapping is an element, and only for Count Four, or any count or specification where Kidnapping is an element, you may consider the defense of voluntary intoxication. Intoxication exists when a person consumes a quantity of intoxicating beverage containing alcohol sufficient to advers[e]ly affect his mental processes and to deprive him of that clearness of intellect that he would otherwise have possessed.

Intoxication is not an excuse for an offense. However, such evidence is admissible for the purpose of showing that the Defendant was so intoxicated that he was incapable of having the knowledge to commit the offense of Kidnapping. Knowledge is the element of this offense; and intoxication, even severe intoxication[,] can co-exist with knowledge.

On this issue, the burden of proof is upon the Defendant to establish by a preponderance or greater weight of the evidence that at the time in question he was so influenced by alcohol that he was incapable of having the knowledge to commit the offense.

If you find by a preponderance or greater weight of the evidence that the Defendant was incapable of having the knowledge to commit the offense, then you must find that the Defendant was not guilty of the offense of Kidnapping because knowledge is an essential element of the offense as I have previously instructed you. (JA 1269-72 (emphasis added).)

Wilson contends that this instruction was erroneous and that the error was not harmless.

a. Whether the Instruction Was Erroneous

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Additionally, due process prohibits requiring an accused to disprove an element of the crime charged. See Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The Ohio Supreme Court concluded that the instruction here violated this prohibition by requiring Wilson to disprove knowledge, an element of the kidnapping offense. State v. Wilson, 659 N.E.2d at 306 (“This instruction is unconstitutional under Winship because it required Wilson to disprove ‘knowledge,’ which is an element of the offense of kidnapping.”). The Ohio Supreme Court also explained, however, that Wilson made no claim that any error in this regard affected the death sentence in his case. Id. Yet the district court concluded that Wilson did claim that this same error affected the death sentence because it was incorporated in the evading-kidnapping specification. The district court further held that, though one could argue that the confusing instruction was not technically improper because the burden shifting occurred in the context of an affirmative defense, the Ohio Supreme Court properly determined that the instruction was unconstitutional (as to the kidnapping charge). Wilson, slip op. at 95 n. 69. The district court accordingly concluded that the instruction was unconstitutional as to the evading-kidnapping specification.

We are not certain that an error regarding the knowledge element of a kidnapping offense necessarily translates into an error regarding the knowledge element of an evading-kidnapping specification. In other words, one might say it is conceivable that a person could lack the requisite knowledge to commit kidnapping, yet have the requisite knowledge to commit murder to evade detection for kidnapping-for example, where the person believes he has committed kidnapping (but actually has not, perhaps because of earlier intoxication), and then commits murder to evade detection for the kidnapping he (erroneously) believes took place. But we do not decide this question. Instead, we assume that the instruction was erroneous with regard to the evading-kidnapping specification and address whether it was harmless.

b. The Error Was Harmless

In assessing whether this error was harmless, we first provide a brief overview of the Ohio Supreme Court's and district court's different analyses, then provide a discussion of the applicable law regarding harmless-error review in this context, and, finally, apply that law to Wilson's case.

i. Ohio Supreme Court's and District Court's Harmless-Error Rulings

The Ohio Supreme Court concluded that the burden-shifting error was harmless in the context of the kidnapping charge: “[W]e find the error to be harmless under the facts of this case since the kidnapping of Lutz continued into the late morning and early afternoon. At that point, he clearly knew what he was doing and intoxication would not reasonably be available as a defense to negate ‘knowledge.’ ” State v. Wilson, 659 N.E.2d at 306. As mentioned, the Ohio Supreme Court did not undertake harmless-error analysis with regard to the evading-kidnapping death specification; the court concluded that Wilson made no argument to that specific point.

The district court disagreed with the Ohio Supreme Court's reasoning. The district court concluded that Wilson met the standard under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), to show that this error affected the outcome of the trial: “Clearly, this trial error [,] which permitted the jury to find Wilson guilty of kidnapping and the single aggravating circumstance to Count One even if the State had not sustained its burden with respect to the knowledge element, had ‘a substantial and injurious effect or influence in determining the jury's verdict.’ ” Id. (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710). The district court explained further: “Had the jury been more clearly instructed as regards the burden of proof, it is possible that it might have concluded, in the face of all of the testimony and Wilson's assertion of intoxication, that the State could not prove beyond a reasonable doubt that Wilson had the requisite knowledge for either the kidnapping charge of the indictment or the kidnapping specification to the aggravated murder charge.” Id. at 96-97. Therefore, had “the kidnapping specification been the only specification for which Wilson had been found guilty,” the district court stated that it “would probably be inclined to grant the writ on this claim because, finding a constitutional error, [the district court] would be left with the ‘grave doubt’ ” described in O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), about whether that error is harmless. Id. at 98.

The district court ultimately denied relief, however, because it concluded that there was an independent reason to deem the error harmless. The court explained that Wilson was found guilty of two capital specifications (which, as mentioned, establish eligibility for the death penalty) in addition to the evading-kidnapping specification: (1) committing the offense during kidnapping, and (2) committing the offense during an aggravated arson.

The district court further noted that, during the penalty phase of a trial, “where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing.” Id. at 99 (quoting State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984) (¶ 5 of syllabus)). The state trial court noted that, based on this law, the State viewed these two additional specifications as merging with the first specification (murder to evade kidnapping), and the State therefore chose to proceed on only the first specification. Id. at 99-100. The district court concluded that “[h]ad the State proceeded instead on the third specification relating to aggravated arson, for which there is no challenge as to the jury instructions and no challenge as to the sufficiency of evidence, undoubtedly the jury would have recommended the death penalty.” Id. at 100. “Therefore,” the district court continued, “the result would have been no different, that is, there is no ‘actual prejudice.’ ” Id. Concluding that the error regarding the burden-shifting with respect to the first specification was harmless in this way, the district court denied habeas relief on this claim. Id.

ii. Applicable Law Regarding Harmless-Error Review of Capital-Sentencing Error

To assess properly the Ohio Supreme Court and district court's analyses here, we must consider the proper standard for applying harmless-error review, the doctrine's emphasis on the error's actual (not hypothetical) impact, and the doctrine's application where the error occurs in the unique context of capital sentencing. This subsection addresses those points.

(a) Overview of Harmless-Error Standard

Before the enactment of AEDPA, the Supreme Court articulated two harmless-error standards. Eddleman v. McKee, 471 F.3d 576, 582 (6th Cir.2006). On direct review, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On collateral review, however, the State's burden is lessened: In those proceedings, courts should deem an error harmless unless the error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710.

“When Congress enacted AEDPA, it complicated this dichotomy” because AEDPA provides that habeas relief shall not be granted unless the state-court decision was either (1) “contrary to,” or involved an “unreasonable application of,” clearly established federal law as determined by the Supreme Court; or (2) based on an “unreasonable determination of the facts.” Eddleman, 471 F.3d at 582 (citing 28 U.S.C. § 2254(d)). We nonetheless continued to apply only the Brecht “substantial-and-injurious-effect” standard after AEDPA's enactment because we concluded that if a petitioner meets that standard, “he will surely have demonstrated that the state court's finding that the error was harmless beyond a reasonable doubt-the Chapman standard-resulted from ... an unreasonable application of Chapman.” Id. (quoting Nevers v. Killinger, 169 F.3d 352, 355 (6th Cir.1999)). In light of the Supreme Court's decision in Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003), however, we reconsidered this position in Eddleman and held that “AEDPA replaced the Brecht standard with the standard of Chapman plus AEDPA deference when, as here, a state court made a harmless-error determination.” Eddleman, 471 F.3d at 583. In other words, when assessing a state court's harmless-error review, we asked whether that review was “contrary to,” or an “unreasonable application of,” Chapman. See id. at 585 (“We now must determine whether the [state-court] decision that admitting Eddleman's confession was harmless error was contrary to, or an unreasonable application of, Chapman.”).

While Wilson's appeal was pending, the United States Supreme Court rejected this approach. In Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), the Court unanimously concluded that regardless whether a state court applied Chapman's harmless-error standard on direct review (i.e., that the state must prove that the error was harmless beyond a reasonable doubt), a federal habeas court applies the stricter (more state-deferential) Brecht standard (i.e., harmless unless the error had substantial and injurious effect on the outcome). In so holding, the Court explained that AEDPA did not replace the Brecht standard. Id. at 2326-27. The petitioner in Fry argued (just as the Eddleman court concluded) that, because of AEDPA, a federal habeas court conducting harmless-error review had to ask whether the state court “unreasonably applied” Chapman to determine whether habeas relief was warranted. Id. The Supreme Court explained, however, that “it is implausible that, without saying so, AEDPA replaced the Brecht standard of ‘actual prejudice,’ with the more liberal AEDPA/ Chapman standard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable.” Id. at 2327 (citations and internal quotation marks omitted). “That said,” the Court continued, “it certainly makes no sense to require formal application of both tests (AEDPA/ Chapman and Brecht ) when the latter obviously subsumes the former.” Id. In other words, a federal habeas court technically applies Brecht in light of AEDPA, but because the Brecht test is stricter (i.e., tougher on the petitioner) than AEDPA/ Chapman, any petitioner that meets the Brecht standard will necessarily meet the AEDPA/ Chapman standard. Thus, when conducting harmless-error review, we simply apply the Brecht standard and ask whether Wilson has shown that the error had substantial and injurious effect in determining the jury's verdict.

(b) Harmless-Error Review Looks to Actual, Not Hypothetical, Impact

Characterizing an error as harmless might have either of two meanings. On the one hand, an error might be deemed harmless if it played such an inconsequential role in the actual trial in which it occurred that it assuredly had no impact on the trial's verdict. 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice & Procedure § 31.4d (5th ed.2005). On the other hand, an error might be deemed harmless-even if it played an important role in the actual trial-if a hypothetical new trial absent the error would likely produce the same outcome as did the actual trial. Id.

The Supreme Court has indicated that of these two meanings the proper one is the first (i.e., whether the error had an actual impact on the outcome), and not the second (i.e., whether a hypothetical new trial would likely produce the same result):

Consistent with the jury-trial guarantee, the question ... the reviewing court [is] to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. Harmless-error review looks, we have said, to the basis on which “the jury actually rested its verdict.” The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered-no matter how inescapable the findings to support that verdict might be-would violate the jury-trial guarantee. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citations omitted) (quoting Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991)). Likewise, as the Brecht Court explained, “[t]he standard for determining whether habeas relief must be granted is whether ... the ... error ‘had substantial and injurious effect or influence in determining the jury's verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (emphasis added)).

(c) Harmless Error in Capital Sentencing

Crucial to this appeal is how the harmless-error principles discussed above apply in the capital-sentencing context when, as here, the jury considers an invalid aggravating factor when imposing a death sentence. One question is whether federal habeas courts can even conduct harmless-error review in that situation. The Supreme Court's recent opinion in Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006), casts some doubt on our current view that federal courts can do so. To fully assess these issues, one must first consider the development of the law in this area, including the Supreme Court's past reliance on the distinction between so-called “weighing States” and “non-weighing States.”

Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), the Supreme Court has required States to limit the class of murderers to which the death penalty may be applied. Sanders, 546 U.S. at 216, 126 S.Ct. 884. This narrowing requirement is usually met when the trier of fact finds at least one statutorily defined eligibility factor at either the guilt or penalty phase. Id. (citation omitted). Once the narrowing requirement has been satisfied, the sentencer is called upon to determine whether a defendant found eligible for the death penalty should receive it. Id. Most States channel this function by specifying the aggravating factors (sometimes identical to the eligibility factors) that are to be weighed against mitigating considerations. Id. The question facing courts in cases like the present one is what happens when the sentencer imposes the death penalty after at least one valid eligibility factor has been found, but under a scheme in which an eligibility factor or a specified aggravating factor is later held to be invalid. Id.

To answer that question, the Supreme Court has distinguished between so-called weighing and non-weighing States. Id. This terminology is somewhat misleading because the Court has held that in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably justify a death sentence against the defendant's evidence. Id. at 217-18, 125 S.Ct. 2384 (citing Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)).

The Court identified as weighing States those in which the only aggravating factors permitted to be considered by the sentencer were the specified eligibility factors. Id. (citations omitted). Ohio is such a weighing state. See, e.g., Lundgren, 440 F.3d at 770. Because the eligibility factors by definition identify distinct and particular aggravating features, if one of them is invalid then the jury cannot consider the facts and circumstances relevant to that factor as aggravating in some other capacity. Sanders, 546 U.S. at 218, 126 S.Ct. 884. In a weighing State, therefore, the sentencer's consideration of an invalid eligibility factor necessarily skews its balancing of aggravators with mitigators. Id. (citation omitted).

By contrast, a non-weighing State permits the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors. Id. (It would be clearer to call these States “complete weighing States,” because the jury can weigh everything that is properly admissible. See id. at 229-30, 126 S.Ct. 884 (Stevens, J., dissenting)). Because the sentencer can consider aggravating factors that are different from the eligibility factors, an invalid eligibility factor does not automatically skew the sentence as it does in a weighing state. Id. at 217, 126 S.Ct. 884.

The question here is a reviewing court's role when an invalid eligibility factor (i.e., evading kidnapping), in a weighing State like Ohio, skews the jury's balance of mitigating circumstances against that aggravating factor. Supreme Court decisions provide some reason to believe that a federal habeas court is simply not permitted to conduct harmless-error review-only a state court can do so.

In Stringer v. Black, for example, the Supreme Court explained that an invalid aggravating factor “in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system.” 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (emphasis added). Additionally, in Richmond v. Lewis, the Court stated, “Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus.” 506 U.S. 40, 49, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (emphasis added).

We relied on these decisions when deciding cases involving invalid aggravating factors in weighing States, requiring States to conduct the new sentencing calculus. For example, in Houston v. Dutton, 50 F.3d 381 (6th Cir.1995), a Tennessee (weighing State) jury sentenced the defendant after finding that the State established the “heinous, atrocious, or cruel” aggravator. Id. at 387. The State admitted on appeal that the aggravator was invalid because of an overly vague instruction. Id. Relying on Richmond's language quoted above, we explained that habeas relief was properly granted because the Tennessee courts did not conclude that the instruction was erroneous and therefore had not performed “a new sentencing calculus.” Id. (emphasis added); accord Cone v. Bell, 492 F.3d 743, 752 (6th Cir.2007) (“Cone is not entitled to a new sentence unless the Tennessee Supreme Court did not (1) conduct a proper harmless error analysis; or (2) reweigh the mitigating and aggravating factors in examining his sentence.” (citing Stringer, 503 U.S. at 230, 112 S.Ct. 1130)).

In Coe v. Bell, 161 F.3d 320 (6th Cir.1998), however, we held that, although we “may not perform reweighing” when a jury considers an invalid aggravator in a weighing state, we may “engage in harmless-error analysis.” Id. at 334. “In reweighing,” we explained, “a state court effectively vacates the original sentence and resentences the defendant; this process is hardly appropriate in the course of collateral review by a federal court.” Id. “In harmless-error analysis, by contrast, a court determines that the original sentence is not constitutionally infirm in the first place, a process that is quite appropriately performed on federal collateral review.” Id.

The Coe decision explained that in Houston we did not address the harmless-error question; rather, we held only that reweighing must be performed by a state court. Id. at 335. Further, the Coe decision explained that conducting harmless-error analysis as a federal habeas court was consistent with the Supreme Court's statement in Richmond that state reweighing is required when “the death sentence has been infected by a constitutionally ... invalid aggravating factor” because, “by definition, ... an error that is harmless does not ‘infect’ the sentence and does not require reweighing by the state.” Id. Finally, Coe reconciled Stringer's language requiring “constitutional harmless-error analysis or reweighing in the state judicial system” by concluding that “the phrase ‘state judicial system’ modifies ‘reweighing’ only, and not ‘harmless-error analysis.’ ” Id. (emphasis added). Coe then concluded that the instructional error there-an overly vague instruction regarding the “heinous, atrocious, or cruel” aggravator-was harmless (under the Brecht standard) because the jury ignored the problematic aspect of the instruction. Id. at 336.

Coe's holding-that a federal habeas court can conduct harmless-error review where a jury considers an invalid aggravator in a weighing State-continued as the law in this Circuit. See, e.g., Cone v. Bell, 359 F.3d 785, 798 (6th Cir.2004) (conducting such a harmless-error analysis after noting that Coe “drew a distinction between re-weighing and harmless error analysis and held that a federal habeas court is permitted to undertake the latter”), rev'd on other grounds by Bell v. Cone, 543 U.S. 447, 459-60, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (holding that we erred in concluding that state court failed to cure faulty “heinous, atrocious, or cruel” aggravator instruction); see also Jennings v. McDonough, 490 F.3d 1230, 1252 (7th Cir.2007) (noting that the Seventh Circuit had “yet to endorse federal harmless error review of death sentences based on invalid sentencing factors when the state appellate court has not performed its own harmless error analysis” and joining the “five circuit courts of appeals [that] have authorized such an approach”) (citing Coe, 161 F.3d 320).

Our holding in Coe is more questionable in light of the Supreme Court's 2006 decision in Sanders. To be sure, the Sanders Court was faced with harmless-error in the context of a non-weighing State. The Court explained that the “weighing/non-weighing scheme is accurate as far as it goes, but it now seems ... needlessly complex....” Sanders, 546 U.S at 219, 126 S.Ct. 884. “We think it will clarify the analysis,” the Court continued, “and simplify the sentence-invalidating factors we have hitherto applied to non-weighing States, if we are henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” Id. at 220, 126 S.Ct. 884 (citation and footnote omitted) (first emphasis added). In other words, “[i]f all the evidence was properly admitted and if the jury can use that evidence when it considers other aggravating factors, any error ... must be harmless.” Id. at 239, 126 S.Ct. 884 (Stevens, J., dissenting). This rule apparently modifies the analysis for non-weighing States, but leaves intact the Court's prior jurisprudence regarding weighing states. See Hertz & Liebman, § 31.3 (6th ed. Supp.2006) (noting that “the pre- Sanders jurisprudence for ‘weighing states' ... apparently remains intact” but that Sanders “reshaped the analysis ... [it had] hitherto applied to non-weighing States”) (internal quotation marks and citations omitted); Adams v. Bradshaw, 484 F.Supp.2d 753, 787 n. 6 (N.D.Ohio 2007) (noting that Sanders “does not apply” to invalid-aggravator claim under Ohio law because Sanders “involves a non-weighing state”).

When discussing weighing States, however, the Supreme Court in Sanders made a statement that might be taken to undercut Coe's holding that a federal, not state, court may conduct harmless-error review where a jury considers an invalid aggravator. The Supreme Court first noted, as we did in Coe, that “[i]n a weighing State ... the sentencer's consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators.” Sanders, 546 U.S. at 217, 126 S.Ct. 884 (citing Stringer, 503 U.S. at 232, 112 S.Ct. 1130). The Supreme Court then stated that, under Stringer, this skewing “required reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors).” Id. (citing Stringer, 503 U.S. at 232, 112 S.Ct. 1130) (emphasis added). This reading of Stringer implicitly rejects the Coe Court's interpretation that Stringer's language requiring “constitutional harmless-error analysis or reweighing in the state judicial system” allows a federal habeas court to conduct harmless-error review and merely limits reweighing to states. See Coe, 161 F.3d at 335 (noting that the phrase “state judicial system” in Stringer “modifies ‘reweighing’ only, and not ‘harmless-error analysis' ”); cf. Adams, 484 F.Supp.2d at 788(“Recently the Supreme Court [in Sanders ] noted that in a weighing state, the sentencer's consideration of an invalid eligibility factor necessarily upsets its balancing of the aggravating circumstances with the mitigating factors requiring reversal of the sentence unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors.”) (citation omitted) (emphasis added). Leading commentators appear to share this view: “[I]n a weighing State, when an eligibility or aggravating factor is found to have been invalid, the federal courts may not themselves engage in either a reweighing or in harmless error analysis; the condemned individual has a constitutional right to have either the state courts or the original sentencer reweigh the valid aggravating and mitigating factors.” Hertz & Liebman § 31.3 (6th ed. Supp.2006) (discussing Sanders and citing cases such as Richmond ).

Although Sanders's statements imply that only a state court may conduct harmless-error review in this situation, those statements are dicta, see Jennings, 490 F.3d at 1252 (noting that none of the Supreme Court decisions regarding this issue “squarely addresses the issue of federal district courts conducting harmless error review in place of state courts”), and do not demand that we change our current state of the law. Indeed, the Seventh Circuit's recent endorsement of our view in Coe (that federal courts may conduct harmless-error review in this context) considered Sanders. See id. In light of these considerations, we continue to hold that federal courts may conduct harmless-error review of invalid aggravating factors even where the state court has not done so. Though a contrary holding would be plausible in light of Sanders's language, cf. Eddleman, 471 F.3d at 583 (“Today, we reconsider our position in light of the Supreme Court's decision in Mitchell v. Esparza, which strongly implied that courts should apply only the Chapman plus AEDPA deference standard of review.” (emphasis added)), we believe that should arise only from a clear statement from our en banc court or the United States Supreme Court.FN3

FN3. Judge Rogers's concurring opinion contends that resolution of this issue is unnecessary because Coe and Sanders address harmless-error analysis in the context of remaining, valid aggravating factors-something not applicable to this case, which involves the harmlessness of a single aggravating factor. We are still assessing, however, whether the error embedded in that single aggravating factor was harmless in the context of a jury's capital-sentencing decision, which requires balancing that aggravating factor against mitigating circumstances-and this invalid aggravating factor skews that balance. See Sanders, 546 U.S. at 217, 126 S.Ct. 884 (“In a weighing State ... the sentencer's consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators.”) (emphasis added). We believe cases such as Coe and Sanders inform whether that skewing is harmless, even where there are no other aggravating factors. See, e.g., Coe, 161 F.3d at 336 (holding that instructional error regarding a single aggravating factor was harmless-not because other aggravating factors remained (though they did)-but because the jury ignored the problematic aspect of the instruction). Moreover, although we agree with the concurrence that the Ohio Supreme Court likely would apply the same harmless-error analysis from the kidnapping-charge context to the evading-kidnapping aggravator, we are reluctant to uphold a state court's harmless-error review of capital sentencing factors that did not actually occur.

iii. Application to Wilson's Appeal

Having concluded that the Ohio Supreme Court did not conduct a harmless-error review of the (presumed) invalid evading-kidnapping aggravating factor, and having concluded that we may nonetheless conduct harmless-error review, we determine that any improper-burden shifting in this regard was harmless.

The only element of the kidnapping charge and specification at issue is the knowledge element. The trial court instructed the jury that “[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result. A person has knowledge of circumstances when he is aware that such circumstances probably exist.” (JA 1270-71.) The court continued, “Knowingly means that a person is aware of the existence of the facts and that his acts will probably cause a certain result.” (JA 1271.)

After these instructions, the trial court provided the voluntary-intoxication instructions referred to above. To recap, those instructions provided that “[i]ntoxication exists when a person consumes a quantity of intoxicating beverage containing alcohol sufficient to advers[e]ly affect his mental processes and to deprive him of that clearness of intellect that he would otherwise have possessed.” (JA 1271.) The trial court further instructed that “[i]ntoxication is not an excuse for an offense,” but that “such evidence is admissible for the purpose of showing that the Defendant was so intoxicated that he was incapable of having the knowledge to commit the offense of Kidnapping. Knowledge is the element of this offense; and intoxication, even severe intoxication[,] can co-exist with knowledge.” (JA 1271.) At this point, the trial court provided the (presumed) improper burden-shifting instruction (placing the burden on Wilson to establish that he was so intoxicated that he was incapable of having the knowledge to commit the offense). (JA 1272.)

The district court explained that the record reveals the following testimony with respect to Wilson's drinking:

1. Bonnie Menges, who managed and bartended at the Empire Tavern, testified that on May 3, 1991, she worked from 3:00 p.m. to 7:00 p.m. When she arrived shortly before her shift, Wilson was already there, and when she left he was still there. He was drinking vodka and orange juice. Although Menges did not believe Wilson was intoxicated, he “was putting them down pretty good that day [,]” “faster than he normally does.” Wilson, slip. op. at 96 n. 71.

2. Doug Pritt, Lutz's good friend whose band played at the Empire Tavern, testified that he arrived there around 9:30 p.m. on May 3, 1991. According to Pritt, Wilson did not arrive until around 10:30 p.m. Pritt left the bar at 1:00 a.m. on May 4, 1991; Lutz walked out with him to say goodbye and then returned to the bar. Pritt testified that Lutz was drinking beer and he saw her offer to buy Wilson a drink, but he did not know what kind. Id.

3. Gregory McKinney, who worked at the Empire Tavern and had the 7:00 p.m. to 3:00 a.m. shift on May 3-4, 1991, testified that he was not sure when Wilson came into the Tavern, but estimated it was about 9:00 or 10:00 p.m. On cross-examination, McKinney admitted that Wilson could have been there when he arrived for his shift, but was not sure. Wilson was drinking beer and vodka and orange juice and shooting pool with Lutz and her friend, Doug Pritt. After Pritt left at about 12:30 a.m., Lutz remained. Although Lutz and Wilson were still drinking beer and, in addition, “had a few shots of Jack Daniels,” McKinney did not believe they were drunk. Id.

4. Darlene DeBolt, Wilson's good friend, testified that she saw him a few minutes before 6:00 a.m. on May 4, 1991, as she was opening the Gastown business where she worked. She “asked him if he had been drinking all night because [she] smelled alcoholic beverages on him.” He said that he had a few beers. He did not appear intoxicated to her. Id. at 96-97 n. 71.

5. Rodney “Lee” Mele, Wilson's cousin, testified that he first saw Wilson around 9:30 or 10:00 p.m. on May 3, 1991 “sitting on his car out in the street.” Around 10:30 p.m., the two of them walked to a local Convenient store where Wilson bought a six-pack of beer. Id. at 97 n. 71.

6. Additionally, there were apparently tapes played for the jury of the interview conducted by Detective Riley in which Wilson stated that he had spent approximately $25 to $30 on alcohol on the afternoon of May 3, 1991, and the same amount in the evening. He further stated that he and Lutz had consumed more beer at his trailer after they left the bar when it closed in the early morning hours of May 4, 1991. Id.

During the penalty phase, defense expert Dr. Robert Forney, a forensic toxicologist, testified on cross-examination that, although an alcoholic drink that a person had at 2:30 a.m. (the approximate time that Wilson left the bar with Lutz) would be completely gone from his or her system by 1:30 p.m. (the time the fire department was called to the scene of the car fire), if that person were an alcoholic, or a heavy chronic drinker, “there is residual damage to the brain and nervous system which may remain even when the alcohol is gone.” Id. at 97 n. 72. Therefore, it was “not [his] opinion that judgment ... would be unaffected or that the brain would be unaffected during periods when alcohol was absent....” Id. Evidence suggested that Wilson was an alcoholic. Id. (noting, for example, testimony that Wilson “never went a single day without drinking”).

Countering this general evidence was specific, and strong, evidence that Wilson had the requisite knowledge for the evading kidnapping-aggravator, that is, that he committed the murder to evade detection for kidnapping Lutz. The Ohio Supreme Court referred to portions of Wilson's statement to the police in which he stated that he recalled thinking, when Lutz was locked in the trunk, “How am I going to get out of this?” State v. Wilson, 659 N.E.2d at 292 (syllabus). In this statement, Wilson also explained that after he let Lutz out to go to the bathroom, she said that “she'd go home and forget about it,” but that Wilson “didn't believe her and thought to himself, ‘How can you forget about being locked in a trunk?’ ” Id. When asked why he did not simply leave her in the trunk, Wilson replied that he “figured ... eventually somebody would find her. She'd get out and tell who [he] was.” Id. (emphasis added).

The district court concluded that the error was not harmless. The district court explained that the Ohio Supreme Court “made no factual findings” and “merely made the conclusory statement that ... the error was ‘harmless under the facts of this case [in the context of the kidnapping charge], since the kidnapping of Lutz continued into the late morning and early afternoon [when Wilson] ... clearly knew what he was doing....” Wilson, slip op. at 90 (quoting Wilson, 659 N.E.2d at 306). “Had the jury been more clearly instructed as regards the burden of proof,” the district court explained, “it is possible that it might have concluded, in the face of all of the testimony and Wilson's assertion of intoxication, that the State could not prove beyond a reasonable doubt that Wilson had the requisite knowledge for either the kidnapping charge of the indictment or the kidnapping specification to the aggravated murder charge.” Id. at 97.

Although “it is possible” that the jury might not have found the evading-kidnapping specification beyond a reasonable doubt, we cannot say, as we must to grant relief under Brecht, that the burden-shifting error had substantial and injurious effect on the verdict. Crucial to our conclusion are Wilson's own statements. Although the Ohio Supreme Court did not reference those statements in the specific portion of its opinion addressing the burden-shifting error on the kidnapping charge, the court nonetheless relied on them, explaining, for example, that Wilson did not simply leave Lutz in the trunk of his car because “[s]he'd get out and tell who [he] was.” State v. Wilson, 659 N.E.2d at 292 (syllabus); cf. Cone, 492 F.3d at 752 (assessing harmless-error review and relying on Tennessee Supreme Court's discussion of penalty-phase evidence “in a section immediately preceding a discussion of the claims ... raised on appeal”). We cannot discern what Wilson's statements such as this one could mean, if not that Wilson knew his actions could lead to kidnapping charges and he therefore committed the crime to escape detection. Moreover, after receiving this erroneous instruction, the jury was properly instructed that the State must prove, beyond a reasonable doubt, “all of the essential elements of the offense of Kidnapping” to reach a guilty verdict on that count. (JA 1273.) In sum, the error did not “ha[ve] substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (citation and internal quotation marks omitted). Wilson is therefore not entitled to habeas relief on this claim.

Before addressing Wilson's remaining claims, we note briefly a concern with the district court's analysis. As mentioned, the district court concluded that, although the Ohio Supreme Court's harmless-error analysis regarding the burden shifting was incorrect, the error at issue was harmless for an independent reason: Had the prosecution gone forward with the arson aggravator at sentencing, the district court said, the jury surely would have relied on that aggravator to impose death.

This analysis appears to posit improperly a hypothetical scenario forbidden by Supreme Court precedent when determining whether a state court properly deemed an error harmless. As discussed above, Sullivan explains that “to hypothesize a guilty verdict that was never in fact rendered-no matter how inescapable the findings to support that verdict might be-would violate the jury-trial guarantee”. Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. Similarly, for the district court to hypothesize a sentencing outcome, based solely on the arson aggravator, that was never in fact rendered-no matter how inescapable the findings to support that sentence might be-would seem to violate the jury-trial guarantee. “The question is ... not [whether the jurors] were ... right in their judgment, regardless of the error or its effect upon the verdict [or sentence].” Kotteakos, 328 U.S. at 764, 66 S.Ct. 1239. “It is rather what effect the error had or reasonably may be taken to have had upon the jury's decision.” Id. Simply put, “harmless-error review looks ... to the basis on which ‘the jury actually rested its verdict,’ ” Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 (citation omitted), and Wilson's jury did not actually rest his death sentence on the arson aggravator-they never even considered it.

This is true even though the arson specification and the evading-kidnapping specification involve substantially the same course of conduct and therefore merged at sentencing. The jury indeed concluded-at the eligibility phase-that Wilson committed the killing during an aggravated arson. But the prosecution chose to proceed at sentencing with the evading-kidnapping specification, and that is the sole aggravator the jury placed on death's side of the scale. The jury never considered how the arson aggravator would tip that same balance. To hypothesize about that-“no matter how inescapable the findings to support that [death sentence] might be”-appears to improperly remove the question from the jury. See Sullivan, 508 U.S. at 279, 113 S.Ct. 2078.

2. Failure to Disclose Youth Services Report Under Brady v. Maryland Wilson next contends that the State failed to disclose Wilson's records from the Ohio Department of Youth Services (“DYS”), in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Wilson explains that he requested the DYS records before trial and that the prosecution denied ever having them. During the mitigation phase of the trial, however, the prosecutor used the records-in particular, a psychological report by DYS employee Hugh Turner-to impeach Dr. Eisenberg's testimony. Wilson argues that the records were material because they were critical for the preparation of Wilson's mitigation phase presentation. In particular, Wilson states that the records were necessary for use by Dr. Eisenberg in his preparation of Wilson's psychological evaluation and mental-health assessment, and that, without the records, Dr. Eisenberg's expert testimony was unprepared and incompetent.

This claim, although not raised on direct appeal, is nonetheless preserved because the procedural rule upon which the state court relied was not firmly established and regularly followed. Wilson correctly notes that the Ohio Supreme Court repeatedly ignored the ninety-day time limit under Ohio Rule of Appellate Procedure 26(B) required for filing a Murnahan application, in which he raised this claim. In Franklin v. Anderson, 434 F.3d 412 (6th Cir.2006), we concluded that Rule 26(B) did not satisfy the Maupin test because (1) the rule was not “firmly established and regularly followed” and therefore it was not an “adequate and independent state ground for foreclosing review” (the third prong of the Maupin test), and (2) the rule was not consistently enforced by the Ohio Supreme Court (the second prong of the Maupin test). Id. at 420 (internal quotation marks omitted). Accordingly, Wilson's claim is not procedurally defaulted.

In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. The duty to disclose Brady evidence encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Norris v. Schotten, 146 F.3d 314, 334 (6th Cir.1998). We explained in United States v. Bencs that “[m]ateriality pertains to the issue of guilt or innocence, and not to the defendant's ability to prepare for trial.” 28 F.3d 555, 560 (6th Cir.1994) (citing United States v. Agurs, 427 U.S. 97, 112 n. 20, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). In particular, “[e]vidence is material ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” United States v. Phillip, 948 F.2d 241, 249 (6th Cir.1991) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)). Further, “ Brady generally does not apply to delayed disclosure of exculpatory information, but only to complete failure to disclose.” Id. Lastly, “[d]elay ... violates Brady [only] when the delay itself causes prejudice.” United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir.1992).

During cross-examination, Dr. Eisenberg testified first that he had an opportunity to review the Turner report, and second that “the report is consistent with what [he] ha[d] been saying....” (JA 1347.) The report was only two pages long, and Dr. Eisenberg did not indicate that he needed more time, apart from the time he was given by the court, to review it. Further, Dr. Eisenberg stated that he generally agreed with the conclusions in the report. (JA 1347 (“I think the report is consistent with what I have been saying.”); JA 1348 (stating that he agreed with the report's conclusion that Wilson had a “narcissistic frame of reference”); JA 1350-51 (agreeing with the report's observation about Wilson's lack of trust and agreeing with the report's conclusion that Wilson's interpersonal conflicts could lead to hostile, aggressive behavior).) Lastly, Dr. Eisenberg testified, in an attempt to discredit the report, that Turner was not licensed as a psychologist at that time.

Given that Dr. Eisenberg's testimony indicated that he agreed with much of the Turner report, Wilson has not established how Dr. Eisenberg's testimony would have been any different if the report had been disclosed earlier, or how earlier disclosure of the report would have altered the outcome of the penalty phase. Thus, although Wilson may be able to establish that the records were suppressed by the State despite Wilson's repeated requests to obtain the records, Wilson has not demonstrated that even if the State had timely disclosed the records that there is a reasonable probability that the outcome of the proceeding would have been different. Accordingly, we conclude that Wilson's Brady claim lacks merit and therefore does not warrant habeas relief.

3. Improper Juror Dismissal

Wilson next argues that the trial judge improperly dismissed a potential juror for cause because her statements regarding her inability to impose a death sentence were equivocal. The State concedes that Wilson has preserved this argument. He contends that O.R.C. § 2945.25(C) incorporates the standard set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), for the dismissal of a juror unable to impose a death sentence. Wilson claims that by applying the standard announced in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Ohio Supreme Court erred in two ways: (1) applying the more lenient Witt standard violated Wilson's liberty interest in the stricter Witherspoon standard, and (2) by applying the Witt standard the Ohio Supreme Court violated the Separation of Powers doctrine by overruling the Ohio legislature.

In Witt, the Supreme Court explained that a prospective juror may be excluded for cause because of his or her views on capital punishment when “the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 469 U.S. at 424, 105 S.Ct. 844 (internal quotation marks omitted). The Court elaborated that “this standard ... does not require that a juror's bias be proved with unmistakable clarity.” Id. (internal quotation marks omitted). Further, the Court noted that “deference must be paid to the trial judge who sees and hears the juror.” Id. at 426, 105 S.Ct. 844. The Court in Witt made clear, however, that it was merely clarifying its previous Witherspoon decision. Id. at 424, 105 S.Ct. 844. (“We therefore take this opportunity to clarify our decision in Witherspoon ....”).

Moreover, we have explained that a petitioner must show that the selected jury was biased to succeed on this claim:

When reviewing a trial court's dismissal of potential jurors for cause, this court must determine whether the trial court's decision prevented the empaneling of an impartial jury. It is not enough for the defendant to show that the decision to exclude the two jurors was improper. He also must show that the jury selected was biased. Hill v. Brigano, 199 F.3d 833, 844 (6th Cir.1999).

Wilson has made no claim that the jury empaneled was biased. Without a showing that his jury was biased, merely arguing that the trial court erred in dismissing a prospective juror for cause is insufficient to warrant habeas relief. Hill, 199 F.3d at 844-45. This claim is without merit.

4. Erroneous Instruction Regarding Wilson's Unsworn Statement

Wilson next contends that the trial court improperly instructed the jury during the penalty phase that his unsworn statement was not evidence, and that this limited the jury's consideration of relevant mitigating evidence. Wilson's unsworn statement included evidence of his youth, his alcoholism, and his remorse for the offense. The trial court instructed the jury as follows regarding the statement:

In this phase, the Defendant made a statement, but he did not testify under oath and was not subject to cross-examination. It is his right under Ohio law to make such a statement and this statement of the Defendant, although not considered evidence, may be considered by you for whatever purpose you would assign. (JA 1412-13 (emphasis added).)

Assuming that this argument is properly preserved, it is without merit. “Under the Eighth Amendment, the jury in a capital case may ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” Mason v. Mitchell, 320 F.3d 604, 618 (6th Cir.2003) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). “[A] jury instruction violates Lockett when there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Gall v. Parker, 231 F.3d 265, 324 (6th Cir.2000) (citing Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). Wilson is entitled to habeas relief on this claim if the instruction “by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citation omitted).

Although the trial court instructed that Wilson's statement was not evidence, the court also instructed that the jury may consider it for whatever purpose it would assign. In short, there is no reasonable likelihood that the instructions prevented the jury's consideration of the statement. Additionally, even assuming that the instructions were problematic, the jury considered similar mitigating evidence from other witnesses at sentencing, so the instructions regarding his statement could not have so infected the entire trial as to violate due process. This claim is therefore without merit.

5. Ineffective Assistance of Appellate Counsel for Failure to Raise Brady Claim

Wilson contends that appellate counsel were ineffective on direct appeal for failure to raise the Brady claim discussed above. Because the Brady claim is without merit, Wilson cannot demonstrate that appellate counsel's failure to raise this non-meritorious claim constituted ineffective assistance under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the denial of Wilson's petition for a writ of habeas corpus.

Wilson v. Strickland, Slip Copy, 2009 WL 1477248 (6th Cir. 2009) (Sec. 1983 Stay)

PER CURIAM.

The State of Ohio has scheduled the execution of Daniel Wilson for 10:00 a.m. on Wednesday, June 3, 2009. On April 8, 2009, Wilson filed an action under 42 U.S.C. § 1983 in the federal district court for the Southern District of Ohio alleging that Defendants intend to violate his constitutional rights by executing him without providing the necessary safeguards to prevent the maladministration of the lethal injection protocol. On May 13, 2009, the district court issued an order granting the Defendants' motion to dismiss Wilson's § 1983 action as time-barred under this Court's decision in Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007) (“Cooey II”) and denying as moot Wilson's motion for a preliminary injunction. See Opinion and Order, Wilson v. Strickland, No. 2:09-cv-271 (S.D.Ohio May 13, 2009) (Doc. No. 15). Wilson timely appeals from that decision. For the following reasons, we AFFIRM the decision of the district court.

I. BACKGROUND

In 1992, Wilson was convicted of aggravated murder, kidnapping, and arson, and sentenced to death. See State v. Wilson, 659 N.E .2d 292, 300 (Ohio 1996). Following the affirmance of his death sentence by the state court of appeals and the Ohio supreme court, Wilson sought and was denied state post-conviction relief. See State v. Wilson, 684 N.E.2d 1221, 1222 (Ohio 1997); State v. Wilson, C.A. No. 97CA006683, 1998 WL 332940, at (Ohio Ct.App. June 24, 1998); State v. Wilson, Nos. 09CA009559, 09CA009562, 2009 WL 1410733 (Ohio Ct.App. May 21, 2009). Wilson filed a motion to reopen his appeal on December 12, 1996. See Wilson v. Mitchell, No. 1:99-cv-0007, slip op. at (Ohio Ct.App. Jan. 14, 2003). The court of appeals denied the motion as untimely in January 1997, and on October 22, 1997, the Supreme Court affirmed. Id.

On July 2, 1999, Wilson filed a petition for habeas corpus relief, which the district court denied. Opinion and Order, Wilson v. Mitchell, No. 1:99-cv-0007 (N.D.Ohio Jan. 14, 2000) (Doc. No. 157). The district court granted a certificate of appealability (“COA”) as to five of Wilson's claims. In April 2005, we granted the certificate as to a portion of one additional claim. See Order Granting COA in Part, Wilson v. Mitchell, No. 03-3362 (6th Cir. Apr. 4, 2005). Subsequently, we affirmed the denial of Wilson's habeas petition in full. See Wilson v. Mitchell, 498 F.3d 491 (6th Cir.2007).

In July 2007, Wilson moved to intervene in a lawsuit filed by Richard Cooey alleging that Ohio's lethal-injection protocol constituted cruel and unusual punishment in violation of the Eighth Amendment. Motion to Intervene, Cooey v. Strickland, No. 2:04-cv-01156 (S.D.Ohio July 31, 2007) (Doc. No. 218). The district court granted Wilson's motion but ultimately dismissed Wilson's Intervenor Complaint as barred by the statute of limitations under Cooey II. Order Granting Mot. to Dismiss, Cooey v. Strickland, No. 2:04-cv-1156 (S.D.Ohio Aug. 25, 2008) (Doc. No. 353).

In April 2009, Wilson filed the instant § 1983 action in district court claiming that the Defendants' likely maladministration of the protocol is violative of his Eighth and Fourteenth Amendment rights. Complaint, Wilson v. Strickland, No. 2:09-cv-271 (S.D.Ohio Apr. 10, 2009) (Doc. No. 6). Specifically, he claims that recent evidentiary hearings in Biros v. Strickland, No. 2:04-cv-1156 (S .D.Ohio May 11, 2009), revealed for the first time that the personnel charged with implementing Ohio's execution protocol lack the necessary knowledge and training to carry out the execution “without exposing him to a substantial risk of pain.” (Merit Brief of the Appellant (“Wilson Br.”) 20.) Wilson also moved to enjoin preliminarily his execution. Wilson v. Strickland, No. 2:09-cv-271 (S.D.Ohio Apr. 8, 2009) (Doc. No. 2). On April 22, 2009, Defendants moved to dismiss Wilson's complaint and deny the preliminary injunction, arguing that his claim is barred by res judicata and, alternatively, by the two-year statute of limitations applicable to § 1983 challenges to Ohio's execution protocol under Cooey II.

The district court dismissed Wilson's complaint as time-barred under Cooey II and expressly declined to consider whether his claims would also be barred by res judicata. Wilson v. Strickland, No. 09-cv-271, slip op. at (S.D.Ohio, May 15, 2009) (Doc. No. 15). The court explained that despite Wilson's assertion that his April 2009 complaint challenged only the administration of the protocol rather than the constitutionality of the protocol itself, “his action remains ultimately focused on the same form of constitutional violation that he should have brought within the limitations period.” Id. at *6. The court then dismissed as moot Wilson's motion for a preliminary injunction. Id .

II. ANALYSIS

We review de novo a district court's dismissal of a complaint for failure to state a claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Benzon v. Morgan Stanley, 420 F.3d 598, 605 (6th Cir.2005). In considering a motion to dismiss under Rule 12(b)(6), we “must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff.” Id. (citing Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002)). Dismissal is appropriate “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir.2003) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

Although the district court dismissed Wilson's complaint as barred by the applicable two-year statute of limitations, we conclude that the complaint is barred by the doctrine of res judicata. See U.S. Postal Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir.2003) (“We may affirm a decision of the district court if correct for any reason, including one not considered below.”). Under the doctrine of res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” See Montana v. United States, 440 U.S. 147, 153 (1979). For res judicata to apply, the following four elements must be present:

(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their “privies”; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action. Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir.1997) (emphasis omitted).

Here, given that the district court's 2008 dismissal of Wilson's Intervenor Complaint constitutes a final decision, and that the two actions involve identical parties, only the final two elements of the inquiry are at issue. See Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir.1981) (holding that dismissal based on statute of limitations is a final judgment on the merits). We have explained that “[i]n order for the third and fourth elements to be satisfied, ‘there must be an identity of the causes of action[,] that is, an identity of the facts creating the right of action and of the evidence necessary to sustain each action.’ “ See Holder v. City of Cleveland, 287 F. App'x 468, 470-71 (6th Cir.2008) (quoting Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981)). “Where the two causes of action arise from the ‘same transaction, or series of transactions,’ the plaintiff should have litigated both causes in the first action and may not litigate the second issue later.” Id. (quoting Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir.2006)).

Wilson asserts that his current complaint differs from his previously dismissed Intervenor Complaint because it challenges the administration of the protocol rather than the protocol itself, and because it is based upon a different set of facts that “came about only in light of testimony in the Biros hearing on March 23-27, 2009.” (Reply Merit Brief of the Appellant (“Pl.Reply”) 1.) However, Wilson's argument is belied by the plain language of his Intervenor Complaint, which sets forth a comprehensive challenge to the “procedures, practices, policies, protocols and/or means for accomplishing” his execution. The Intervenor Complaint states, in relevant part:

Defendants have created, maintained and implemented a method of execution (i.e. lethal injection), and procedures, practices, policies, protocols and/or means for accomplishing that method of execution, which if utilized in Plaintiff's case, will subject Plaintiff to an unlawful deprivation of his constitutional rights, including his right to be free from cruel and unusual punishment.

Specifically included within this complaint is a constitutional challenge under § 1983 to the Defendant's adoption and anticipated use of DRC Policy No. 01-COM-11 ... and any other procedures, practices, policies, protocols and/or means for accomplishing Plaintiff's execution by lethal injection that are or might be adopted ... which are the same as or similar to the DRC Execution protocol in those respects challenged herein.

Defendants ... have failed ... to create, maintain, and implement procedures, practices, policies, protocols and/or means for carrying out an execution by lethal injection that would allow for Plaintiff's execution by lethal injection to occur in a manner and by means that would not violate his constitutional rights.

The use of [the] three drugs specified in the DRC Execution Protocol ... and the manner in which those drugs are to be administered, create an undue risk that Plaintiff will be subjected to extreme, excruciating and unnecessary pain and suffering....

The Defendants have failed to incorporate into the DRC Execution Protocol a requirement that the personnel assigned to establish and maintain the intravenous lines are properly trained. Further Defendants have made insufficient preparation for the real possibility, encountered, for example, in the execution of Joseph Clark on May 2, 2006, that access to Plaintiff's veins cannot be successfully established or maintained....

The DRC Execution Protocol does not disclose all of the material details surrounding the process by which an inmate sentenced to die will be executed pursuant to lethal injection; nor have the Defendants disclosed the details surrounding the qualifications and training of the personnel involved in the administration of lethal injection. Accordingly, as more information about the process is made available to Plaintiff through discovery in this litigation or otherwise, Plaintiff reserves the right to make additional constitutional challenges to the DRC Executive Protocol and to any other procedures, practices, policies, protocols, and/or means Defendants intend to employ in carrying out Plaintiff's execution....

Likewise, the DRC Execution Protocol does not require that a person with adequate medical training administer and monitor the execution so as to detect whether a condemned inmate is suffering pain and if so to determine whether and what appropriate medical steps may be taken to alleviate the pain. See Proposed Intervenor Complaint, Wilson v. Strickland, 2:04-cv-01156-GLF-MRA, ¶¶ 21-26, 27, 29 (Doc. 218-2) (July 21, 2007) (emphasis added).

Despite Wilson's arguments to the contrary, his two complaints raise the same basic challenge-that the Defendants' personnel are not adequately qualified or prepared to execute him within the parameters permitted by the Constitution. For instance, the Intervenor Complaint challenged the training of the individuals “assigned to establish and maintain the intravenous lines” that will be used to execute him, and the “manner in which [the] drugs are to be administered.” (See Intervenor Complaint ¶ 26). In addition, his earlier complaint cited Defendants' poor administration of the execution protocol in the execution of Joseph Clark-a claim that is repeated in the current complaint. (See Intervenor Complaint ¶ 26; Complaint ¶ 33(d)). Further, although Wilson claims that his current complaint is “predicated on information revealed publicly for the first time during the [Biros] evidentiary hearing” (Complaint ¶ 34), we have virtually no evidence indicating that the same information would not have been available through discovery in his prior suit. Accordingly, Wilson's argument that his prior suit challenged “the constitutionality of the protocol” while his current suit targets the State's ability to adhere to and properly administer the protocol is merely a matter of semantics rather than a substantive distinction.

The fourth element of res judicata is also met. Wilson's current complaint is based on the same assertion as was set forth in his intervenor complaint-that the manner in which the Defendants intend to execute him could result in a painful death in violation of his constitutional rights. Wilson may not re-litigate a claim that the lower court has already dismissed in a previous case (and that he declined to appeal). Therefore, because all four requirements of res judicata are met, Wilson's claim is barred, and we need not reach his argument that the district court erred in finding his complaint time-barred under Cooey II.

We must also consider Wilson's motion to stay his execution. “[A] stay of execution is an equitable remedy.” Hill v. McDonough, 547 U.S. 573, 584 (2006). We analyze the following factors in deciding whether to grant Wilson a stay of execution:

(1) whether there is a likelihood he will succeed on the merits of the appeal; (2) whether there is a likelihood he will suffer irreparable harm absent a stay; (3) whether the stay will cause substantial harm to others; and (4) whether the injunction would serve the public interest. See Workman v. Bell, 484 F.3d 837, 839 (6th Cir.2007) (citing Capobianco v. Summers, 377 F.3d 559, 561 (6th Cir.2004)). A stay “is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill, 547 U.S. at 584. Thus, Wilson “must show a ‘significant possibility of success on the merits' ... to obtain a stay.” Workman v. Bell, 484 F.3d 837, 839 (6th Cir.2007) (quoting Hill, 547 U.S. at 584). Given our conclusion that the district court properly dismissed Wilson's complaint, he has not met his burden to show a significant possibility of success on the merits. Therefore, his motion to stay the execution is denied.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court granting Defendants' motion to dismiss and DENY Wilson's motion to stay his execution.

Daniel Wilson