Summary:

Loretta Mae Foster was a 67-year-old widow who baby-sat children in her neighborhood and lived three doors down from Reynolds in Cuyahoga Falls near Akron. Reynolds was an alcoholic who was out of work and needed money for booze. He forced his way into Foster's house, strangled her with rope and left with $40 in cash and a blank check from her purse. She was later discovered beaten, tied up, and almost naked in the living room of her home. Bloodstained clothing and the blank check was later recovered from his bedroom.

On the evening of the murder, Reynolds bragged to friends about killing Foster and even took his brother to the home before the body was discovered. About a month before her murder, Foster hired Reynolds to paint her basement. Reynolds claimed he was promised $300 but only got $100. Reynolds harassed the widow for weeks — knocking on her door after dark, hiding outside and jumping out to scare her.

Citations:

State v. Reynolds, 80 Ohio St.3d 670, 687 N.E.2d 1358 (Ohio 1998). (Direct Appeal)
Reynolds v. Bagley, 498 F.3d 549 (6th Cir. 2007). (Habeas)

Final/Special Meal:

A porterhouse steak with A1 sauce, pork chops with barbecue sauce, jumbo fried shrimp with cocktail sauce, fried mozzarella sticks, french fries, onion rings, fried mushrooms, chocolate fudge, black cherries, black walnuts and a Dr Pepper.

Final Words:

"I came in like a lion and go out like a lamb." Addressing two women he didn't identify, he said, "Erin and Emma will forever and always hold the heart of the lion. To my brothers, I hope they will never have to walk these 15 steps I walked today. I have tried to bring attention to the futility and flagrantly flawed system we have today. Stop the madness." In the witness room, the murder victim's niece, replied, "It's going to stop right now."

ClarkProsecutor.org

Ohio Department of Rehabilitation and Correction

Inmate#: OSP #A296-121
Inmate: Lawrence Reynolds Jr.
DOB: June 2, 1966
County of Conviction: Summit County
Date of Offense: January 11, 1994
Case Number: C94-01-0158
Date of Sentencing: June 15, 1994
Presiding Judge: Ted Schneiderman
Prosecuting Attorney: Michael Carroll
Institution: Southern Ohio Correctional Facility
Convictions: Count 1: Aggravated Murder (Death), Count 2 Aggravated Robbery (10-25 years, Count 3 Kidnapping (10-25 years), Count 4 (10-25 years) Aggravated Burglary, Count 5 Attempted Rape ((8-15 years), all to run consecutively.

Murderer’s last words: ‘Stop the madness'

By Alan Johnson - DispatchPolitics.com

March 17, 2010

LUCASVILLE, Ohio - When it was time for Lawrence Reynolds to speak his last words, he could have expressed remorse for snuffing out the life of a family friend, an elderly widow who had been his siblings' baby sitter. But the words would not come, as was often the case with the introverted Reynolds. Instead, he lashed out at the "flagrantly flawed system we have today. Stop the madness!"

About 10 feet away in the Death House, separated from the condemned man by a pane of glass, the niece of murder victim Loretta Foster reacted angrily. "Yeah, yeah. It's gonna stop now, right now," Denise Turchiano said.

It did. At 10:27 a.m. yesterday, Reynolds, 43, was pronounced dead at the Southern Ohio Correctional Facility near Lucasville. He was given a large, lethal dose of thiopental sodium, a powerful anesthetic. Thus ended a 16-year saga that began on Jan. 11, 1994, when Reynolds entered the 67-year-old woman's home in Cuyahoga Falls in Summit County, robbed her, beat her with a wooden tent pole, and strangled her with a rope.

The Rev. Ernie Sanders, Reynolds' spiritual adviser, said yesterday that Reynolds told him he planned to tell Foster's family he was sorry for what he had done. "He wanted to express remorse," Sanders said. "It's hard to understand, but he just didn't know how."

Sanders said Reynolds was disappointed that his March7 suicide attempt by an overdose of a prescription medication was unsuccessful. "He didn't ever want to be the center of attention," he said. "He didn't want his last act to be part of what he considered to be a sideshow or a circus. He just kind of wanted to die all alone."

During his 24 hours at the Lucasville prison, Reynolds asked for and was given anti-anxiety medication on three occasions. As prison medical technicians connected IV lines to his right and left arms, Reynolds lay motionless, staring at the ceiling. He was wobbly when he got to his feet and needed help to make the 17-step walk to the Death Chamber. The drug began flowing into his veins at 10:19 a.m. Within two minutes, Reynolds' eyes closed and shortly after that he lay motionless on the lethal-injection table.

Patty Solomon, Foster's granddaughter, read a statement afterward that said, in part, "The law has been upheld and justice has been served. ... It is time to put this behind us and move on with our lives. "It is now our time to heal."

Man executed for ’94 murder wanted to die alone, adviser says

By Marc Kovac - Vindy.com

March 17, 2010.

LUCASVILLE — Lawrence Reynolds was an introvert who was sorry for what he did and wanted to die alone, his spiritual adviser said Tuesday after Reynold’s execution. “He was sorry for his crime. It was something that he had done under the influence, as he said, of ignorant oil,” said Ernie Sanders, addressing reporters after Tuesday’s execution. “He wished that he had never done it.”

But the 43-year-old Summit County man, sentenced to death for the 1994 murder of an elderly Cuyahoga Falls neighbor, couldn’t find the words to express his remorse to the family of the woman he killed, using his final moments instead to urge the state to stop capital punishment. “The law has been upheld, and justice has been served,” Patty Solomon, granddaughter of Reynolds’ murder victim, later told reporters.

Reynolds was pronounced dead at 10:27 a.m., about 10 minutes after being strapped to the table in the execution chamber at the Southern Ohio Correctional Facility. He was the 36th inmate put to death since the state resumed capital punishment in 1999 and the fourth executed under the state’s new single-drug protocol.

In January 1994, Reynolds conned his way into the home of Foster, a 67-year-old neighbor. He beat her with a tent pole, tied her up with a telephone cord and strangled her. Reynolds took about $40 in cash and a blank check belonging to the victim; Foster’s nude body was later found on the floor of her house, after Reynolds bragged to friends about the killing. He was convicted for murder, kidnapping, burglary and attempted rape and sentenced to death.

Reynolds was supposed to be executed a week ago but was found unconscious in his cell at the Ohio State Penitentiary in Youngstown just hours before he was to be transported to Lucasville. He later admitted to prison staff that he was attempting suicide using prescription medicine. Reynolds was returned to the Youngstown prison two days after the overdose and placed under a suicide watch, meaning round-the-clock observation and limited privileges.

He was transferred to the Southern Ohio Correctional Facility early Monday.

Ohio executes inmate who killed neighbor in 1994

By Matt Leingang - Associated Press

LUCASVILLE, Ohio — A death row inmate who tried to kill himself last week by overdosing on pills as his legal challenges dried up was executed Tuesday for robbing and strangling his neighbor in 1994. Lawrence Reynolds Jr., 43, was executed by lethal injection at the Southern Ohio Correctional Facility nine days after prison guards found him unconscious in his cell.

Ernie Sanders, a spiritual adviser who met with Reynolds in prison, said Reynolds wanted to die alone, not in the state's death chamber. "He just didn't want his last act of life to be what he considered to be a sideshow or a circus," Sanders said.

Reynolds became the fourth inmate to die by Ohio's new lethal injection procedure, which uses one drug instead of three. Like the others, his death came quickly.

Reynolds was convicted of killing Loretta Foster, a 67-year-old widow who baby-sat children in her neighborhood and lived three doors down from him in Cuyahoga Falls near Akron. Prosecutors said Reynolds was an alcoholic who was out of work and needed money for booze. He forced his way into Foster's house, strangled her with rope and left with $40 in cash and a blank check from her purse.

"I came in like a lion and go out like a lamb," Reynolds said in a brief final statement while lying on the gurney. Addressing two women he didn't identify, he said, "Erin and Emma will forever and always hold the heart of the lion." Reynolds then addressed other inmates on death row and his unsuccessful legal challenge of Ohio's new execution method. "To my brothers, I hope they will never have to walk these 15 steps I walked today," he said. "I have tried to bring attention to the futility and flagrantly flawed system we have today. Stop the madness."

In the witness room, Denise Turchiano, Foster's niece, replied, "It's going to stop right now."

Reynolds had sued the state, saying it hasn't corrected problems with accessing inmates' veins before the single drug is injected. He lost his final court battle Monday when the U.S. Supreme Court declined to intervene.

Prison officials have released few details about his suicide attempt. It's unclear if Reynolds had visitors before the overdose or stockpiled medication prescribed for him. Authorities have not identified the drug he took. Reynolds' crime shattered the victim's family and tore apart his own.

Foster was like a grandmother to kids in the neighborhood and even baby-sat for Reynolds' three younger siblings. Reynolds had few family visits while in prison, and his parents wanted nothing to do with his request for clemency last summer.

Patty Solomon, Foster's granddaughter, said after the execution that justice had been served. "It is time to put this behind us and move on with our lives," she said. "Our hearts are as broken today as they were 16 years ago."

Reynolds' childhood was marred by alcohol abuse, according to prison records. He graduated from high school and then spent six years in the Army. When he returned home, he couldn't hold down a job because of late-night drinking binges.

About a month before her murder, Foster hired Reynolds to paint her basement. Reynolds claimed he was promised $300 but only got $100, prosecutors said. Reynolds harassed the widow for weeks — knocking on her door after dark, hiding outside and jumping out to scare her.

He went to the widow's house on Jan. 11, 1994, this time wearing camouflage clothing and carrying a wooden tent pole, which he used to beat Foster when she reached for a phone and tried to call for help, prosecutors said. Then he strangled her and removed her clothes.

At a bar later that night, Reynolds told a group of friends what happened. Unsure whether to believe him, the group went to Foster's house and saw her body lying on the floor. Two of the friends went to police.

Reynolds had expressed remorse for the killing while in prison, Sanders said. "It was something he had done under the influence, as he said it, of 'ignorant oil'" Sanders said. "He wished that he had never done it."

At the trial, Reynolds' defense team didn't deny that Reynolds was responsible for the murder but attempted to show that he was drunk and had not gone to Foster's house intending to kill her. He was convicted of aggravated murder, aggravated robbery and attempted rape.

Lawrence Raymond Reynolds, Jr.

ProDeathPenalty.com

In early January 1994, Loretta Mae Foster, 67, complained to her son Michael that a neighbor, Lawrence Raymond Reynolds, Jr., had been knocking on her door after dark. Reynolds had recently painted Loretta's basement and claimed that he needed to put a paint can in the basement. Loretta told her son that she was scared of Reynolds.

On January 11, Loretta's sister-in-law Norma took her to a doctor's appointment and Loretta told Norma that a neighbor had been acting "weird"; that is he would knock on the door, hide, and then jump out at her. Loretta told her doctor and her doctor's office manager about Reynolds in an effort to explain why her blood pressure was elevated. After the visit to the doctor, Loretta stopped at her credit union and withdrew $50. Norma dropped Loretta off at home around 3 pm.

In the late afternoon or early evening of January 11, 1994, Lawrence Reynolds assaulted, robbed, and killed his neighbor, Loretta Foster, in her home. He took $40 in cash and a blank check from her purse, and left her almost-nude body lying on the living room floor. Around 7:30 that evening, Reynolds and his brother Jason went to a bowling alley to shoot pool with some friends. Upon arriving, Reynolds told two friends, Brian and Jim, that this would be his last night to party with them because he had killed someone and was leaving town the next day. Reynolds told them that he had knocked on Loretta's door and told her that he had a letter to give her from his sister, showing her an envelope. He had rope and a tent pole with him. Loretta Foster opened the door and Reynolds forced his way in and a struggle began. Reynolds hit Loretta and she fell to the floor. A clump of hair was ripped from Loretta's head. He began to rummage through her purse. When he realized she was attempting to reach for the phone, he cut the phone line, tied her up, and hit her once or twice with the tent pole. He tried to strangle her with his hands but was unsuccessful. At some point during the struggle, Reynolds received a rope burn on his hand, which he showed his listeners.

Reynolds told them he had left Foster lying naked in the living room and that he had taken $40 in cash and a blank check from her checkbook before leaving through a back door. The group proceeded to the Rainbow Bar where Reynolds continued to discuss how he had killed Loretta. Uncertain whether to believe him, the two friends left the bar and went to Loretta’s home, looked through the living-room window, and saw Loretta's nude body lying on the floor. Reynolds and his brother Jason also went to Loretta's house after leaving the Rainbow Bar. Jason was stunned to see Loretta's body. Reynolds picked up a glove and a tent stake that he had left and attempted to brush off the purse. A milk jug of water was used to rinse the blood from the area around the body. Then they returned to their home.

Brian and Jim went to a friend's house because they knew that his father was a police officer. They told the officer what Reynolds had told them and described what they had seen at Loretta's house. They later went to the police station and made a statement. Police officers were dispatched to investigate. They found Loretta's body in her living room. She had been beaten about the head and strangled. Her bra was cut in the front and the bra and her t-shirt were above her breasts. Her pants and pantyhose were laying near the body, in a rolled down position. By the rear door of the house, there was a quantity of blood and a large clump of hair. Broken eye glasses and one earring were found in the kitchen and the other earring and Loretta's purse were found in the dining room as was her checkbook which was removed from her purse.

After finding Loretta's body, the police initiated a homicide investigation and obtained an arrest warrant for Lawrence Reynolds, Jr. They went to the Reynolds home and arrested Reynolds. While they were there, Lawrence Reynolds, Sr., Reynold’s father, consented, verbally and in writing, to a search of the house, and specifically to his son’s bedroom and the basement. (Reynolds was twenty-seven years old at the time of his acts, and continued to live at home.) The search revealed several items of physical evidence later used against Reynolds at trial: (1) gloves and a camouflage jumpsuit, both smeared with blood of the same type as Loretta’s and containing fibers matching those from a red jacket found in her bedroom; (2) a piece of rope identical to that used on Loretta, stained with blood of her type and containing human hair matching her own; (3) a section of a tent pole, in keeping with what Reynolds had told his friends he brought to Loretta’s house; and (4) a blank check drawn on Loretta’s account.

An autopsy concluded that Loretta had died from strangulation. She had also been subjected to blunt force trauma. Based on the color of the bruises on her wrists, the coroner testified that Loretta had been alive when tied up. The coroner was unable to find any physical evidence of sexual conduct.

While in jail, Reynolds told a fellow inmate essentially the same story as he had told his friends, but with more, at times conflicting, details. For example, Reynolds stated to the inmate that he had taken off Loretta's blouse to enable him to see her hands at all times. The inmate asked him about news reports that the victim was found with her pants off. Initially, Reynolds claimed that her pants had come off in the struggle, but he later told the inmate that he had “tried to stick his meat in her,” and yet when the inmate questioned Reynolds specifically on the matter, he denied trying to rape her.

During the trial, Jason Reynolds avoided eye contact with his brother as he told the jury how he went to the Foster home with his brother about 1:30 a.m. Jan. 12 to check out the story his brother had told during a night of drinking. "I went in, me and my brother," Jason Reynolds said. "I saw her lying there. That's all I needed to see."

An Ohio jury needed only an hour and a half to decide that Reynolds was guilty of aggravated robbery, aggravated burglary, kidnapping, and attempted rape, as well as aggravated murder (of the felony-murder type) with four death penalty specifications attached. He was sentenced to 38-to-90 years’ imprisonment and death. While confined on death row, he sent a letter threatening sexual violence and murder if his demands for naked pictures were unmet. A separate obscene letter was sent to the victim of his prior telephone harassment similarly requesting naked photographs.

Kelly Redfern, Dona Papp, Patty Solomon and Gail Hand, great-nieces and granddaughters of Loretta Foster, testified at a clemency hearing for Reynolds. Each shared their memories of Loretta Foster and the exceptional kindness and generosity she shared with both family and neighbors. Each was nurtured by Loretta Foster and attribute to her many positive influences that have shaped their lives and the lives of their children. Dona Papp said, ''That was 15 years ago. He is still guilty. My aunt is still dead." The parole board declined to recommend clemency for Reynolds by a vote of 6 to 0. Reynolds originally had an execution date set for March 9, 2010 however he attempted to kill himself by overdosing on prescription medication so the execution was delayed by one week.

Death Row Inmate Overdose Delays Lethal Injection

By Matt Leingang - HuffingtonPost.com

March 8, 2010

COLUMBUS, Ohio — Gov. Ted Strickland on Monday postponed the execution of a convicted killer who managed to take an overdose of pills in his death row cell and was found unconscious just hours before he was to be driven to his execution.

Lawrence Reynolds Jr., 43, who was sentenced to die for killing his neighbor in 1994, was found unconscious around 11:30 p.m. Sunday at the Ohio State Penitentiary in Youngstown, prisons spokeswoman Julie Walburn said.

Reynolds, who was scheduled to die by lethal injection Tuesday, was showing signs of consciousness Monday at a Youngstown hospital, but medical staff weren't prepared to release him, Walburn said. He was upgraded from serious to stable condition. The inmate took the pills despite being under a 72-hour watch – routine for inmates approaching an execution date – that includes monitoring by prison guards outside the cell, Walburn said.

Guards are supposed to keep inmates under constant observation, making log entries every 30 minutes, she said. Death row inmates have access to a recreation area and, if approved, are allowed interaction with other inmates. Walburn did not say what kind of pills Reynolds took or how he got them, and an investigation is under way. Reynolds' injuries were self-imposed, she said, but declined to call it a suicide attempt.

Strickland issued a seven-day reprieve and rescheduled the execution for March 16. No further details about Reynolds' activities Sunday were released. He had been scheduled to leave at 3 a.m. Monday for the Southern Ohio Correctional Facility in Lucasville, which houses the state's death chamber.

Reynolds has been challenging Ohio's new lethal injection procedure, which uses a one-drug system instead of three drugs. As expected, his attorneys filed an appeal Monday with the U.S. Supreme Court seeking to postpone the execution.

The Ohio public defender's office, which is representing Reynolds, declined to comment on the overdose until attorneys gathered more information, spokeswoman Amy Borror said.

This appears to be the first time since Ohio reinstated the death penalty in 1999 that an inmate scheduled for execution "has been found unresponsive mere hours from being transported" to the state death chamber, Walburn said. It's rare, but not unheard of, for condemned inmates to attempt suicide as they approach execution dates, said Richard Dieter, executive director of the Death Penalty Information Center, a group opposed to capital punishment.

California has executed 13 inmates since capital punishment was reinstated in 1978 – a period during which 17 condemned inmates committed suicide. Nine condemned inmates in Texas have committed suicide since death row reopened there in 1974. The last, William Robinson, 49, used a sheet to hang himself in his cell at a psychiatric center in February 2008.

Reynolds was sentenced to die for strangling his 67-year-old neighbor in her Cuyahoga Falls home to get money for alcohol.

Tuesday would have been the second time the state has tried to execute Reynolds. He was scheduled to die in October, but Strickland delayed the execution so the state could review its lethal injection procedure. Since then, Ohio has switched from a three-drug process, which opponents said could cause severe pain, to the one-drug system. Reynolds lost a bid to have the execution delayed so he could challenge the new system when federal appeals court on Friday denied his request.

Three inmates have been executed with the state's new, one-drug new method, and in each case death came in just a few minutes. Washington last week became the second state to adopt the procedure.

State v. Reynolds, 80 Ohio St.3d 670, 687 N.E.2d 1358 (Ohio 1998). (Direct Appeal)

Defendant was convicted in the Court of Common Pleas, Summit County, of aggravated murder, and was sentenced to death. Defendant appealed. The Court of Appeals affirmed. Defendant appealed as of right. The Supreme Court, Pfeifer, J., held that: (1) defendant was not denied effective assistance of counsel; (2) defendant's father had common authority over defendant's bedroom, and thus could consent to search of bedroom; (3) prospective juror's comments during general voir dire did not taint the other jurors; and (4) trial court did not abuse its discretion in admitting photographs of murder scene. Affirmed. Resnick, J., concurred in judgment only.

Appellant, Lawrence Reynolds, Jr. (“Reynolds”), was convicted of the aggravated murder of Loretta Foster. He appeals his convictions and death sentence.

In early January 1994, Foster complained to her son that a neighbor, Reynolds, had been knocking on her door after dark. Reynolds had recently painted Foster's basement and claimed that he needed to put a paint can in the basement. Foster told her son that she was scared of Reynolds.

On January 11, 1994, Foster's sister-in-law, Norma Haubert, took her to a doctor's appointment. Foster told Haubert that a neighbor had been acting “weird”; that is, he would knock on the door, hide, and then jump out at her. Foster told her doctor and her doctor's office manager about Reynolds in an effort to explain why her blood pressure was elevated. After the visit to the doctor, Foster stopped at her credit union and withdrew fifty dollars. Haubert dropped Foster off at home around 3:00 p.m.

Around 7:30 p.m. that evening, Reynolds and his brother Jason went to Northgate Lanes to shoot pool with Jason's friend Joseph Hindel. Upon arriving, Reynolds told Brian Baker and Jim Ferrando that that would be his last night to party with them because he had killed someone and was leaving town the next day.

Reynolds told them that he had knocked on Foster's door and told her that he had something to give her from his sister. He had rope and a tent pole with him. Foster opened the door and a struggle began. Reynolds hit Foster and she fell to the floor. He began to rummage through her purse. When he realized she was attempting to reach for the phone, he cut the phone line, “tied her up,” and hit her once or twice with the tent pole. He tried to strangle her with his hands, but was unsuccessful.

At some point during the struggle, Reynolds received a rope burn on his hand, which he showed his listeners. Reynolds told them that he had left Foster lying naked in the living room, and that he had taken forty dollars in cash and a blank check from her checkbook before leaving through the back door.

The group proceeded to the Rainbow Bar where Reynolds continued to discuss how he had killed Foster. Baker and Ferrando did not know whether to believe Reynolds, so they left the bar and went to Foster's house. They looked into the living room window and saw Foster's nude body lying on the floor.

Reynolds and Jason also went to Foster's house after leaving the Rainbow Bar. Jason was stunned to see Foster's body. Reynolds picked up a glove and a tent stake that he had left and attempted to brush off the purse. Then they returned to their home.

Baker and Ferrando went to a friend's house because they knew his father was a police officer. They told Officer Joe Orsine what Reynolds had told them and described what they had seen at Foster's house. They later went to the police station and made a statement. Police officers were dispatched to investigate. After finding the victim's body, the police initiated a homicide investigation and obtained an arrest warrant for Lawrence Reynolds, Jr.

Officers went to the Reynolds home and arrested Reynolds. While the officers were there, Lawrence Reynolds, Sr. consented, verbally and in writing, to a search of the house. He specifically consented to a search of Reynolds's bedroom and the basement. Police seized a camouflage outfit, gloves, a tent pole, white rope, a knife, and a blank check.

Forensic tests revealed that the rope found in Reynolds's bedroom matched the rope used to tie up Foster. Human hair on the rope matched a hair sample taken from Foster. Blood found on the camouflage overalls was of the same type as Foster's.

On January 20, 1994, the Summit County Grand Jury indicted Lawrence Reynolds, Jr. for one count of aggravated murder committed during the course of a robbery and/or burglary and/or kidnapping and/or attempted rape. Four separate aggravating circumstances, pursuant to R.C. 2929.04(A)(7), were alleged, i.e., murder during an aggravated robbery, murder during an aggravated burglary, murder during a kidnapping, and murder during an attempted rape. Reynolds was also charged with four separate felonies-aggravated robbery, aggravated burglary, kidnapping, and attempted rape.

While awaiting trial in the Summit County Jail, Reynolds told an inmate, Neil Webster, the same story he had told his friends. Reynolds also stated that he had taken off Foster's blouse to enable him to see her hands at all times. Webster questioned him concerning a newspaper article that asserted that the victim was found with her pants off. Initially, Reynolds claimed that Foster's pants had come off in the struggle, but he later told Webster that “he tried to stick his meat in her.” When Webster specifically questioned him, Reynolds denied trying to rape Foster.

The autopsy showed that Foster had been strangled. She had also been subjected to blunt force trauma. No evidence of spermatozoa was found in her vagina or rectum, and there was no physical evidence of sexual conduct.

At trial, the defense did not deny that Reynolds was responsible for Foster's death. Instead, the defense attacked various elements of the offenses charged and attempted to show that Reynolds had been drunk and had not gone to Foster's house intending to kill her.

Reynolds was twenty-seven years old when the crime was committed and had been drinking alcohol since he was approximately fourteen years old. During his high school years, he drank as many as twelve cans of beer a day. Despite this drinking, Reynolds apparently had a normal childhood in a middle class family. After high school, he enlisted in the Army for four years and then re-enlisted for two more years. He served in Korea for eighteen months and was often drunk when he telephoned home.

When he got out of the Army, he became depressed because his girlfriend and the son he had fathered with her did not come to Ohio with him. His aunt and uncle helped him get a job with a replacement window company. He worked there for about two years before being fired because of alcohol-related chronic tardiness and absenteeism.

Approximately two years before the murder, Reynolds had been arrested for driving under the influence and failing to comply with a police officer's order. He moved in with his parents and completed an alcohol treatment program. Even so, he continued to drink. He paid rent to his parents when he first moved home, but had not given them any rent for about four months prior to Foster's death. He had been unable to find a job and sold personal items to support his drinking habit. When he had nothing left to sell, he apparently decided to steal money from Foster.

The jury found Reynolds guilty of all charges and recommended the death penalty. The trial court adopted the jury's recommendation and sentenced Reynolds to death. The court of appeals affirmed the convictions and sentences. The cause is now before this court upon an appeal as of right.

PFEIFER, Justice.

Pfeifer, J. In this appeal, Reynolds advances nineteen propositions of law. For the reasons that follow, we reject all his propositions of law and affirm each conviction and the death sentence.

Ineffective Assistance of Counsel

In his first proposition of law, Reynolds contends that he was denied the effective assistance of counsel because his lead attorney was appointed to represent him only two weeks prior to trial. Sup.R. 20 (formerly C.P.Sup.R. 65) provides that two attorneys, certified pursuant to the rule, must be appointed to represent indigent persons charged with a capital crime. One attorney is designated lead counsel and the other is designated co-counsel. The Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases certifies attorneys as either lead or co-counsel, based on training and experience. One of the attorneys appointed to an indigent capital defendant must be certified as lead counsel.

Attorneys George Keith and George Pappas were appointed to represent Reynolds. After pretrial motion hearings, but before the trial began, the trial court discovered that neither attorney was certified as lead counsel. Keith moved to withdraw from the case and requested that an attorney certified as lead counsel be appointed. The trial court appointed Kerry O'Brien, a lead-counsel certified attorney. Voir dire began two and a half weeks later.

Reynolds contends he was denied the effective assistance of counsel because it is unreasonable to expect counsel to prepare for a capital trial in two weeks. The record reflects that the trial court questioned O'Brien extensively concerning his ability to prepare for trial in the short period of time available to him. O'Brien stated that he could be adequately prepared. The court also asked Reynolds and Pappas whether they were comfortable with the timetable. Reynolds and Pappas expressed their agreement with the new arrangement.

O'Brien prepared for the trial by reviewing materials that had been prepared by Pappas and Keith. Pappas remained on the case and provided continuity of representation to Reynolds. The trial court indicated, by journal entry, that new counsel would be granted time to file additional motions and to request a delay if necessary.

At oral argument, Reynolds's counsel invited this court to adopt a per se rule that appointed counsel cannot be required to begin a capital trial within such a short period of time. We decline the invitation. Instead, we examine counsel's performance under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to prevail on a claim of ineffective assistance of counsel, Reynolds must show that counsel's performance fell below an objective standard of reasonableness and that prejudice arose from counsel's performance. See Strickland at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.

Reynolds has not demonstrated that he was prejudiced by lead counsel's belated appointment. We also find no evidence in the record that O'Brien was hampered by his late appointment. O'Brien, separately or together with Pappas, filed motions in addition to those filed by Keith and Pappas, questioned jurors during voir dire, cross-examined the state's witnesses in the trial phase, conducted direct examination in the penalty phase, and gave closing arguments in both phases. We conclude that Reynolds was not prejudiced by the appointment of O'Brien two weeks prior to trial, and accordingly reject the first proposition of law.

Pretrial Suppression Issues

In his second proposition of law, Reynolds argues that the evidence obtained from his bedroom should have been suppressed because his father did not have authority to consent to a search. Lawrence Reynolds, Sr. gave permission to police officers to enter his home. Once inside, the officers established that Reynolds, Sr. owned the home and that Reynolds had not paid rent in the past four months. They also determined that Reynolds and Reynolds, Sr. had no agreement about whether Reynolds's bedroom was off limits and that Reynolds did not have any locked compartments in his bedroom. Detective Michael Gay obtained verbal and written consent to search the house and Reynolds's bedroom from Reynolds, Sr. Reynolds, Sr. also provided a taped statement of consent after the search had been completed.

While the Fourth Amendment prohibits warrantless searches, there are exceptions to this general rule. For instance, searches may be conducted when the owner of the property or a person with common authority over the property voluntarily consents to a search. United States v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242; State v. Sneed (1992), 63 Ohio St.3d 3, 7, 584 N.E.2d 1160, 1165. The state has the burden of establishing that Reynolds's father had the required common authority to consent to a search. Illinois v. Rodriguez (1990), 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148, 156.

Parents may consent to a search of premises owned by them. See State v. McCarthy (1971), 26 Ohio St.2d 87, 92, 55 O.O.2d 161, 164, 269 N.E.2d 424, 427; State v. Carder (1966), 9 Ohio St.2d 1, 10, 38 O.O.2d 1, 6, 222 N.E.2d 620, 627. Reynolds, Sr. owned the house that was searched and there was no agreement between him and Reynolds concerning the privacy of Reynolds's bedroom. See United States v. Evans (C.A.7, 1994), 27 F.3d 1219, 1230; United States v. Roark (C.A.6, 1994), 36 F.3d 14, 17; State v. Chapman (1994), 97 Ohio App.3d 687, 691-692, 647 N.E.2d 504, 507; State v. Gavin (1977), 51 Ohio App.2d 49, 53, 5 O.O.3d 168, 170, 365 N.E.2d 1263, 1265. Reynolds had not been paying rent, which would have given him a claim that he had a proprietary interest in his bedroom. For these reasons, we conclude that the investigating officers received constitutionally adequate consent from Reynolds, Sr. We reject Reynolds's second proposition of law.

In his third proposition of law, Reynolds challenges the trial court's denial of his motion to suppress statements. One particular statement that Reynolds moved to suppress was ruled admissible though never introduced at trial. Pursuant to Crim.R. 52(A), a court should disregard any error “which does not affect substantial rights.” If any error existed in denying the motion to suppress the statement, it was harmless beyond a reasonable doubt. Reynolds's third proposition of law is rejected.

Voir Dire Issues

Reynolds asserts in his fourth proposition of law that the trial court erred when it overruled his motion to prohibit the use of peremptory challenges to exclude jurors who expressed concerns about capital punishment. In State v. Esparza (1988), 39 Ohio St.3d 8, 13, 529 N.E.2d 192, 198, we held that the use of peremptory challenges against prospective jurors opposed to the death penalty was not improper. Prosecutors can exercise peremptory challenges for any reason, without inquiry, and without a court's control, except that jurors cannot be excluded on the basis of race or gender. State v. Seiber, 56 Ohio St.3d 4, 13, 564 N.E.2d 408, 419; J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89. Thus, it was not error for the trial court to allow the challenged peremptory challenges. The fourth proposition of law is rejected.

In his fifth proposition of law, Reynolds argues that the jury panel was tainted because the trial court erred by delaying an excusal for cause. Prospective juror John Vanhyning was a part-time police officer for the city of Rittman and had been involved in law enforcement for forty years. Defense counsel moved to exclude Vanhyning for cause based on his answers during individual voir dire. The trial court “noted” the objection, but allowed the prospective juror to proceed into general voir dire.

During general voir dire, Vanhyning disclosed that he knew many of the state's witnesses, such as the coroner, Bureau of Criminal Investigation investigators, and police officers. Vanhyning knew the county prosecutor personally and had previously worked with Michael Carroll, one of the assistant prosecutors in this case. Vanhyning also indicated that he had always found “the gentleman that I knew,” presumably Detective Michael Gay (one of the state's witnesses), to be truthful. After these comments, the court called the prospective juror and counsel to sidebar where the court and counsel further questioned Vanhyning. The trial court then, sua sponte, excused Vanhyning for cause.

As Vanhyning was excused for cause and did not sit on Reynolds's jury, the only issue is whether Vanhyning's comments during general voir dire tainted the remaining jurors. Vanhyning's comments about Gay's truthfulness were potentially prejudicial. However, these remarks were tempered by the prosecutor's response that the other jurors did not know the detective and would have to evaluate his testimony based on what he said in court. Vanhyning also commented that his experience indicated that prosecutor Carroll was efficient. This comment was also tempered by the prosecutor, who replied that what happened in the past was in the past and this case would have to be decided based on evidence presented in this courtroom. The trial court instructed the jury on what evidence could properly be considered, and further instructed that they would have to decide the case for themselves. No evidence in the record suggests that the jury that was seated in this case was not a fair and impartial jury as mandated by the Constitution. We reject the fifth proposition of law.

Trial Phase Errors

In his sixth proposition of law, Reynolds argues that the trial court erred in admitting gruesome photographs. Seven photographs taken at the crime scene were admitted into evidence and fourteen slides were used by the coroner during his testimony. Reynolds argues that the photographs duplicated the coroner's slides and that the readmission of two of the seven photographs (State's Exhibits 23 and 24) in the penalty phase was error.

Each photograph admitted had significant probative value for the prosecution. The admitted photographs illustrated the testimony of the state's witnesses concerning evidence found at the murder scene and the condition of Foster's body. We conclude that the trial court did not abuse its discretion in admitting the photographs because they were relevant and of probative value. See State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus, and State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267, 273-274.

The coroner's slides served a wholly different purpose than the crime scene photographs. The slides illustrated the coroner's testimony concerning the injuries sustained by Foster and the cause of her death. The photographs showed how the body was found at the crime scene as well as other items found at the scene, such as the phone ripped out of the wall and a jug containing one inch of water that had possibly been used to dilute blood stains. The photographs thus gave the jury an “appreciation of the nature and circumstances of the crimes.” State v. Evans (1992), 63 Ohio St.3d 231, 251, 586 N.E.2d 1042, 1058; State v. Allen (1995), 73 Ohio St.3d 626, 636, 653 N.E.2d 675, 686. We conclude that the coroner's slides and the crime scene photographs were not cumulative.

The two crime scene photographs readmitted in the penalty phase (State's Exhibits 23 and 24) were used to illustrate the aggravating circumstances of the case. We conclude that the photographs were not cumulative because they served a different purpose during the penalty phase. See State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542, 551-552. We reject Reynolds's sixth proposition of law.

In his seventh proposition of law, Reynolds argues that the trial court gave an impermissible “acquittal first” instruction on the aggravated murder and aggravated burglary charges. No objection was raised to either instruction at trial and no error was assigned in the court of appeals. Therefore this issue is waived and must fail absent plain error. State v. Campbell (1994), 69 Ohio St.3d 38, 40-41, 630 N.E.2d 339, 344-345. See Crim.R. 52(B).

“An alleged error ‘does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise.’ ” Campbell at 41, 630 N.E.2d at 345, citing State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. The trial court did not err because the instructions given were consistent with those approved by this court in State v. Thomas (1988), 40 Ohio St.3d 213, 218-221, 533 N.E.2d 286, 291-293, and paragraph three of the syllabus. We reject the seventh proposition of law.

In his eighth proposition of law, Reynolds contends that statements made by Foster to three persons prior to her death were hearsay and improperly admitted. Defense counsel did not object to these statements at trial and the issue was not assigned as error in the court of appeals. Therefore, this issue was waived and must fail absent plain error. Campbell, 69 Ohio St.3d at 40-41, 630 N.E.2d at 344-345.

Foster's statements to her son and sister-in-law that she was “fearful” or “concerned” were admissible under Evid.R. 803(3), which permits admission of a “statement of the declarant's then existing state of mind, emotion, [or] sensation * * *.” See State v. Apanovitch (1987), 33 Ohio St.3d 19, 21, 514 N.E.2d 394, 397; State v. Simko (1994), 71 Ohio St.3d 483, 491, 644 N.E.2d 345, 352-353; and State v. Frazier (1995), 73 Ohio St.3d 323, 338, 652 N.E.2d 1000, 1013.

Foster's statements concerning Reynolds's actions in the days before the murder and her statements explaining the reasons why she was scared were clearly hearsay and not admissible under any of the recognized exceptions to the rule. Apanovitch at 21, 514 N.E.2d at 397-398. Since the defense failed to object, we must determine whether the admission of these statements affected the outcome of the trial. We conclude that it did not, primarily because Reynolds did not deny his involvement in the murder and because he told a number of witnesses on the night of the murder what he had done. There was no plain error with respect to these hearsay statements.

Denise Feist, who worked for Foster's doctor, testified that Foster stated that her blood pressure was probably high because Foster was nervous about her neighbor (Reynolds). Feist testified that Foster had stated that the neighbor had knocked on her door after dark and that she was afraid because she did not know what he wanted. Feist identified State's Exhibit 69 as a page from Foster's medical records in which the doctor had written down her blood pressure and noted she was “[a]nxious about young neighbor that keeps coming over.” The statements concerning the fact that Foster was nervous or fearful are admissible under Evid.R. 803(3). See discussion supra. The statements concerning her high blood pressure are also admissible under Evid.R. 803(4), which creates an exception to the hearsay evidence rule for statements made for purposes of medical diagnosis or treatment. State v. Boston (1989), 46 Ohio St.3d 108, 120-121, 545 N.E.2d 1220, 1233. While the remaining statements should have been excluded as hearsay, no objection was raised and plain error is not evident. We reject Reynolds's eighth proposition of law.

Sentencing Phase Issues

The state opened the penalty phase by calling Foster's son, Michael Foster, as a “victim-impact witness.” Foster testified that he was an only child and that his father had passed away many years earlier, that his mother was from a large family and her house had been the gathering place for the family, and that his mother had touched “everyone's life” and been a special part of their lives. When the prosecutor asked him to describe the effect his mother's death had had on him, Michael became distraught and was unable to answer. He indicated that one of his daughters was getting married in July and that his mother had been looking forward to the wedding. Michael's other daughter had once lived with Foster for a period of time. He testified that both granddaughters missed their grandmother very much.

The prosecutor incorporated the victim-impact testimony into his closing argument: “He told you as best he can the effect this crime has had on himself and his family, and it is an extended family of Mrs. Foster. Considerations of the effect of a crime upon the victim, the victim's family, are things you can think about in making a decision here. And I urge you to do that.” (Emphasis added.)

Reynolds presents four propositions of law concerning this victim-impact evidence which we will address in turn.

In his tenth proposition of law, Reynolds argues that the admission of victim-impact testimony was error. Counsel did not object. Accordingly, the allowance of the victim-impact testimony must be examined under the plain-error standard. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339. Given the four aggravating circumstances and the fact that the statement was not overly emotional or directed to the penalty to be imposed, it cannot be said that the sentence would clearly have been otherwise but for the victim-impact evidence. See State v. Taylor (1997), 78 Ohio St.3d 15, 27, 676 N.E.2d 82, 94; State v. Allard (1996), 75 Ohio St.3d 482, 499-500, 663 N.E.2d 1277, 1292; State v. Wilson, 74 Ohio St.3d 381, 399, 659 N.E.2d 292, 309-310; State v. Fautenberry (1995), 72 Ohio St.3d 435, 438-439, 650 N.E.2d 878, 882; State v. Lorraine (1993), 66 Ohio St.3d 414, 421, 613 N.E.2d 212, 219; State v. Slagle (1992), 65 Ohio St.3d 597, 611-612, 605 N.E.2d 916, 929-930; and State v. Evans, 63 Ohio St.3d at 238, 586 N.E.2d at 1050. See, also, Payne v. Tennessee (1991), 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736. We find no plain error and therefore reject the tenth proposition of law.

In his eleventh proposition of law, Reynolds contends that the prosecutor's statement cited above amounted to misconduct. We agree that the prosecutor's remarks imploring the jury to consider the effect of the crime on Foster and her family were likely improper. It is impossible to determine the weight given the victim-impact evidence by the jury. We conclude that the outcome of the penalty phase would not clearly have been otherwise but for the imploring of the prosecutor. See Long, 53 Ohio St.2d at 96-97, 7 O.O.3d at 181, 372 N.E.2d at 808. We reject the eleventh proposition of law.

In his fifteenth proposition of law, Reynolds contends that the trial court's consideration of the victim-impact testimony was error. There is no indication that the trial court considered or weighed this evidence in making its determination. We reject the fifteenth proposition of law.

In his first proposition of law, Reynolds contends that counsel's failure to object to the victim-impact evidence or the prosecutor's use of it constituted ineffective assistance of counsel. Even though counsel should have objected, Reynolds is unable to show prejudice. There is no reasonable probability that the outcome would have been different. Accordingly, counsel's failure to object to the victim-impact testimony does not rise to the level of ineffective assistance of counsel. We reject that portion of the first proposition of law.

After Michael Foster testified, the state called Reynolds's brother, Jason, as a witness. Defense counsel objected. The prosecutor stated that Jason would testify about Reynolds's state of mind when he and Reynolds went to Foster's residence, only hours after the murder was committed. The trial court did not allow the state to call Jason at that time. Later in the penalty phase, the court permitted the state to call Jason as a rebuttal witness. In his ninth proposition of law, Reynolds challenges the admission of his brother's testimony.

Immediately after the state's direct examination of Jason, defense counsel moved to strike Jason's testimony, arguing that it was improper rebuttal evidence. The prosecutor claimed that Jason had been called as a witness to rebut a statement made by defense counsel in his opening statement of the trial phase that Reynolds had not attempted to conceal himself. The trial court denied the motion to strike.

Reynolds now argues that the admission of this testimony was error because it was improper and prejudicial rebuttal evidence. In construing R.C. 2929.03(D), we have held that the state may introduce evidence to rebut the existence of any statutorily defined or other mitigating factors first asserted by the defendant. DePew, 38 Ohio St.3d at 286-287, 528 N.E.2d at 555; State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, syllabus. Jason's testimony rebutted defense penalty phase evidence. In his unsworn statement, Reynolds claimed that he had been so intoxicated on the night of the murder that he hadn't been able to control what he was doing. Jason testified that when he saw Reynolds at 6:00 p.m. on the night of the murder, he could tell that Reynolds had been drinking, but did not think Reynolds was drunk. The defense attempted to portray the murder as impulsive, brought on by Reynolds's ingestion of alcohol. Jason's testimony rebutted this evidence and suggested that the crime was part of a calculated plan. Accordingly, we conclude that the testimony offered by Jason was not improper or prejudicial.

Reynolds also argues that the admission of Jason's testimony allowed the jury to infer that Jason was in favor of imposing the death sentence on his brother. This argument is speculative. Jason expressed no opinion on the death penalty, his feelings about what his brother had done, or what punishment his brother should receive. Additionally, defense counsel had the opportunity, through cross-examination, to clarify for the jury that Jason did not wish his brother to be executed. We conclude that Jason's testimony did not allow the jury to draw an improper inference. We reject the ninth proposition of law.

In his eleventh proposition of law, Reynolds contends that two of the prosecutor's comments during the penalty phase were personal opinions and therefore improper. In his opening statement, the prosecutor stated, “And I tell you that the evidence in this case will prove beyond a reasonable doubt that the aggravating circumstances do outweigh the mitigating factors.” (Emphasis added.) The prosecutor used the same language in his penalty phase closing argument.

The general rule is that “where personal opinions of guilt are predicated upon the evidence, though frowned upon, they are not deemed to be prejudicially erroneous.” State v. Stephens (1970), 24 Ohio St.2d 76, 83, 53 O.O.2d 182, 186, 263 N.E.2d 773, 777. It is difficult for prosecutors to argue vigorously for the death penalty without making statements that can be arguably construed as statements of personal opinion. State v. Tyler (1990), 50 Ohio St.3d 24, 41, 553 N.E.2d 576, 595. We conclude that the statements made by the prosecutor were permissible argument. We reject Reynolds's eleventh proposition of law.

Reynolds was charged, convicted, and sentenced for four separate felonies: aggravated burglary, aggravated robbery, kidnapping, and attempted rape. In his seventeenth proposition of law, Reynolds argues that the four felony counts should have been “merged” for sentencing. Reynolds argues, as did defense counsel during the sentencing hearing, that since “all of the conduct of which Defendant was convicted occurred within a relatively short period of time, during the same evening, in the same flow and course of conduct,” the offenses should merge.

R.C. 2941.25(A) provides that where the conduct of a defendant can be construed as constituting two or more allied offenses of similar import, the indictment may contain counts for all such offenses, but the defendant may be convicted of only one. See Newark v. Vazirani (1990), 48 Ohio St.3d 81, 549 N.E.2d 520, syllabus. Offenses are of similar import when their elements “correspond to such a degree that commission of one offense constitutes commission of the other offense.” State v. Bickerstaff (1984), 10 Ohio St.3d 62, 66, 10 OBR 352, 356, 461 N.E.2d 892, 896.

Aggravated robbery and aggravated murder are not allied offenses of similar import. Bickerstaff, 10 Ohio St.3d at 66, 10 OBR at 356, 461 N.E.2d at 895-896. Aggravated burglary and aggravated murder are not allied offenses of similar import. State v. Henderson (1988), 39 Ohio St.3d 24, 28, 528 N.E.2d 1237, 1242; Frazier, 73 Ohio St.3d at 342-343, 652 N.E.2d at 1016.

Reynolds committed aggravated burglary when he used deception to obtain entry into Foster's home and used force to complete that entry in order to take her property. Reynolds committed aggravated robbery when he subjected Foster to further injury in order to take her property. We conclude that the offenses were committed separately and with a separate animus. See State v. Frazier (1979), 58 Ohio St.2d 253, 256, 12 O.O.3d 263, 264-265, 389 N.E.2d 1118, 1120. In this case, aggravated burglary and aggravated robbery were not allied offenses of similar import.

The facts indicate that the defendant had an animus to rape Foster. This animus was separate from the animus to commit burglary, robbery, kidnapping, and murder. State v. Williams (1996), 74 Ohio St.3d 569, 580, 660 N.E.2d 724, 734. Accordingly, the attempted rape charge should not merge into any of the other felonies.

Restraint, an essential element of kidnapping, is often necessary to facilitate other crimes, such as rape, robbery, and murder. State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345. We have held that kidnapping and another offense are committed with a separate animus when the “restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime * * *.” Logan at paragraph (b) of the syllabus.

Reynolds was in the process of robbing Foster when he noticed she was attempting to use the phone and struck her. At that time, he tied Foster's hands behind her back, restraining her. Only after Reynolds had restrained Foster for a period of time did he kill her. At some point, he attempted to rape her. It is apparent to us that the kidnapping in this case constituted a separate offense from the murder, State v. Jells (1990), 53 Ohio St.3d 22, 33, 559 N.E.2d 464, 475, from the attempted rape, State v. Powell (1990), 49 Ohio St.3d 255, 262, 552 N.E.2d 191, 199, and from the robbery, State v. Jenkins (1984), 15 Ohio St.3d 164, 197-198, 15 OBR 311, 339-340, 473 N.E.2d 264, 295; State v. Perkins (1994), 93 Ohio App.3d 672, 684, 639 N.E.2d 833, 841.

Unlike robbery or rape, burglary does not definitionally require the victim's restraint, State v. Waddy (1992), 63 Ohio St.3d 424, 448, 588 N.E.2d 819, 837, because the infliction of physical harm, an essential element of aggravated burglary under R.C. 2911.11(A)(1), does not require a victim to be restrained. Even if it did, Reynolds imposed further restraint on the victim by tying her up. Thus, aggravated burglary under either R.C. 2911.11(A)(1) or (3) and kidnapping are not allied offenses of similar import. We conclude that none of the felonies in this case were allied offenses of similar import. The seventeenth proposition of law is rejected.

The four separate felonies of which Reynolds was convicted were used to allege four separate aggravating circumstances under R.C. 2929.04(A)(7). Defense counsel moved to merge the specifications prior to the start of the penalty phase. The trial court denied the motion. In his sixteenth proposition of law, Reynolds argues that the trial court erred. Defendant relies on State v. Jenkins, paragraph five of the syllabus, where this court stated, “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.” Only aggravating circumstances that are allied offenses of similar import are “duplicative” within the meaning of Jenkins. See Waddy, 63 Ohio St.3d at 448, 588 N.E.2d at 837. We have already determined that none of the separate felonies constituted allied offenses of similar import. We conclude that the trial court did not abuse its discretion in refusing to merge the capital specifications. Reynolds's sixteenth proposition of law is rejected.

Sentencing Hearing

After the jury recommended the death penalty, the trial court scheduled the sentencing hearing for 8:45 a.m. on June 9, 1994. At that hearing, the trial court addressed defendant's convictions for aggravated robbery, aggravated burglary, kidnapping, and attempted rape. After permitting counsel for both parties to speak about those convictions, the judge asked Reynolds if he had anything to say before the court pronounced sentence for those crimes. Reynolds indicated he had nothing to say.

After sentencing Reynolds for aggravated robbery, aggravated burglary, kidnapping, and attempted rape, the judge addressed the aggravated murder count, stating, “This Court's written decision has been prepared. It is now being filed, and copies will soon be available to counsel.” The record indicates that the opinion was filed at 9:05 a.m.

The trial court then asked counsel for both parties if they wished to address the court concerning the aggravated murder count. The state urged the trial court to impose the death penalty; defense counsel argued against imposition of the death penalty. The trial court did not ask Reynolds if he wished to address the court concerning the aggravated murder count. Defendant's lead counsel stated during his presentation that defendant had “addressed the Court previously by way of a letter.” The trial court proceeded to sentence defendant to death. The hearing was concluded at 9:21 a.m.

In his eighteenth proposition of law, Reynolds argues that the sentencing hearing was “a mockery” because the trial court filed its sentencing opinion before the conclusion of the sentencing hearing. He argues that the trial court also erred in failing to ask Reynolds if he desired to make a statement before sentence was imposed on the aggravated murder count.

The state concedes that the trial court acted prematurely in filing its sentencing order prior to the completion of the sentencing hearing. We agree that the trial court should have waited until the sentencing hearing was completed to file its sentencing order. However, it is apparent to us that Reynolds was not prejudiced by the court's premature filing.

The trial court sat through the trial and penalty phases of the case and had listened to the evidence presented as to the aggravating circumstances and mitigating factors. The court had from May 31st until June 9th to consider the evidence presented by both sides. Counsel's arguments for Reynolds during the sentencing hearing were substantially the same as the arguments advanced during the penalty phase. Had new evidence or information been presented during the sentencing hearing, the trial court could have modified its sentencing order. We conclude that the premature filing was not prejudicial error.

Crim.R. 32(A) provides that “[b]efore imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and also shall address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.” Thus, the failure of the court to ask Reynolds if he wanted to make a statement before imposition of sentence on the aggravated murder court was error.

Defense counsel spoke on his client's behalf and stated that “Reynolds has addressed the court previously by way of a letter.” The purpose of allocution is to permit the defendant to speak on his own behalf or present any information in mitigation of punishment. Reynolds had this opportunity in the penalty phase of the case when he presented evidence and made an unsworn statement. A court's error in failing to ask a defendant if he wants to make a statement prior to sentencing is not prejudicial where, as here, the defendant makes an unsworn statement in the penalty phase, sends a letter to the trial court, and where defense counsel makes a statement on behalf of the defendant. The eighteenth proposition of law is rejected.

The penalty phase in a capital case is not a substitute for a defendant's right of allocution. Failure to provide a defendant the right of allocution could constitute reversible error in a future case.

Trial Court Opinion

In his twelfth proposition of law, Reynolds contends that the trial court erred in its written sentencing opinion by (1) failing to state why the aggravating circumstances outweighed the mitigating factors, (2) considering nonstatutory factors, and (3) failing to assign weight to the mitigating factor of alcoholism.

Whether the trial court properly stated why the aggravating circumstances outweighed the mitigating factors is arguable. This court's independent sentence review of the aggravating circumstances and mitigating factors will correct this deficiency, if indeed it is a deficiency. State v. Lott (1990), 51 Ohio St.3d 160, 170-173, 555 N.E.2d 293, 304-307. We conclude that the trial court's failure to unambiguously explain why the aggravating circumstances outweighed the mitigating factors is not prejudicial error.

While the trial court discussed the facts surrounding the crime (a nonstatutory factor) in its opinion, it did not weigh those facts as aggravating circumstances. Instead the court reviewed the nature and circumstances of the crime, as it was required to do pursuant to R.C. 2929.03. State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus; Lott, 51 Ohio St.3d at 171, 555 N.E.2d at 304-305. We conclude that the trial court did not consider non-statutory factors.

Reynolds argues that the trial court did not give “significant” weight to his alcoholism. The statute does not require that significant weight be accorded. The weight, if any, given to a mitigating factor is a matter for the discretion of the individual decision-maker. State v. Fox (1994), 69 Ohio St.3d 183, 193, 631 N.E.2d 124, 132; State v. Mills (1992), 62 Ohio St.3d 357, 376, 582 N.E.2d 972, 988. We conclude that the trial court properly weighed the mitigating factor of alcoholism.

We note, sua sponte, that the trial court did not correctly weigh the aggravating circumstances and mitigating factors. The court weighed each aggravating circumstance separately against the mitigating factors instead of weighing all the aggravating circumstances against all the mitigating factors. See State v. Cooey (1989), 46 Ohio St.3d 20, 38-39, 544 N.E.2d 895, 916-917. The trial court stated in its opinion that “the state of Ohio has proved beyond a reasonable doubt that each aggravating circumstance for which he was found guilty outweighed all the mitigating factors.” Although this issue was not raised by Reynolds, our independent review will cure the error. Fox, 69 Ohio St.3d at 191, 631 N.E.2d at 131.

We note, sua sponte, that the court's journal entry imposes the sentence of death five times-one for the aggravated murder charge and one for each aggravating circumstance. Although this issue was not raised by the parties, our independent review will cure the error. We reject the twelfth proposition of law.

Constitutional Challenges

In his fourteenth proposition of law, Reynolds argues that the death penalty review procedures are flawed because this court reviews only death penalty cases when conducting its statutorily mandated proportionality review. We summarily reject this argument on the authority of State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus.

Reynolds argues that Ohio's capital sentencing scheme violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution. We summarily reject this argument on the authority of State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus; Jenkins at paragraph one of the syllabus; State v. Sowell (1988), 39 Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; Steffen, 31 Ohio St.3d at 125, 31 OBR at 285-286, 509 N.E.2d at 396; State v. Grant (1993), 67 Ohio St.3d 465, 483, 620 N.E.2d 50, 69; Maurer at paragraph one of the syllabus; and State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795.

Independent Sentence Review

This court is required by R.C. 2929.05 to independently review this case and conduct an appropriateness and proportionality evaluation as to the death sentence. We conclude that the evidence in the record supports a finding that Lawrence Reynolds, Jr. committed the aggravated murder of Loretta Foster while committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated robbery, and aggravated burglary. Moreover, the evidence establishes that Reynolds was the principal offender in the commission of the aggravated murder.

The nature and circumstances of the crime offer nothing in mitigation for Reynolds. His history, character, and background suggest some mitigating factors. Reynolds was raised in a middle class home by both parents. He began drinking alcohol in his early teens. After graduating from high school, he served in the Army for six years before being honorably discharged. Upon discharge, he moved in with his parents. He eventually found employment and moved into his own apartment. Throughout this time, the use of alcohol continually plagued his life.

As his alcohol usage increased, it affected his employment, leading to his termination from his job. In January 1992, he was arrested for driving under the influence and failing to comply with a police officer's signal or order. He moved back in with his parents and completed alcohol treatment as part of his probation, but soon began drinking again. He appears to have been employed, or earning some money, until about four months prior to the crimes. He then began to sell his personal belongings to support his drinking habit. By the time of the murder, he had become desperate because he had nothing more to sell.

Dr. Joseph Bendo, a psychologist, diagnosed Reynolds as having an adjustment disorder, which caused him to react more strongly than the stressors or the environment in his life might warrant. Dr. Bendo concluded that Reynolds had an antisocial personality type with addictive-proneness to alcohol and drugs. His drinking was a product of his inability to relate effectively with people. While this proclivity does not meet the mitigating factor standard of R.C. 2929.04(B)(3), we will consider it under R.C. 2929.04(B)(7).

In an unsworn statement, Reynolds expressed his remorse to the victim's family and to his own family and asked the jury to spare his life.

We weigh the aggravating circumstances against the following mitigating factors: lack of a substantial criminal record (R.C. 2929.04[B][5] ), honorable military service to his country, alcoholism, emotional problems, and remorse for the crime. The lack of a substantial criminal record is entitled to relatively significant weight. The remaining factors, such as his military service, are entitled to some weight. Another factor to consider is the prosecutor's “overzealous” application of the aggravating circumstances “to the same act or indivisible course of conduct,” which was criticized in Jenkins, 15 Ohio St.3d at 197, 15 OBR at 339, 473 N.E.2d at 294.

We conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. While this court has not had any prior cases with the same four aggravating circumstances, we will review comparable cases for proportionality comparison.

In State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674, Durr was found guilty and sentenced to death for aggravated murder during the course of a kidnapping, aggravated robbery, and rape. The mitigating evidence was minimal, Durr came from a broken home, and his common-law wife was pregnant. Durr exhibited no remorse for his crimes. The court found the death penalty appropriate in Durr.

In State v. Rojas (1992), 64 Ohio St.3d 131, 592 N.E.2d 1376, Rojas was found guilty and sentenced to death for aggravated murder during the course of a rape, aggravated burglary, and aggravated robbery. Rojas suffered from a mental disease which was not strong enough to be considered under R.C. 2929.04(B)(3). Rojas was the same age when the crime was committed as Reynolds. Rojas had a much lower intelligence level than Reynolds. Rojas exhibited remorse for his crimes. The court found the death penalty appropriate in Rojas. State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831, and State v. Murphy (1992), 65 Ohio St.3d 554, 605 N.E.2d 884, are also comparable to the case before us. Holloway and Murphy broke into the homes of elderly female neighbors to rob them. The mitigating evidence presented in Holloway (mild mental retardation, personality disorder, physical deformity, and abuse) and Murphy (mental impairment, impoverished background, alcoholic father, victimization by verbal, physical, and sexual abuse) was more compelling than that presented herein. This court found the death penalty appropriate in those cases. We conclude that the death sentence in the case before us is not disproportionate to the death sentences imposed in similar death penalty cases.

Finding the death penalty appropriate and proportionate, we affirm the sentence of death. The judgment of the court of appeals is hereby affirmed.

MOYER, C.J., and DOUGLAS, FRANCIS E. SWEENEY, Sr., COOK and LUNDBERG STRATTON, JJ., concur. RESNICK, J., concurs in judgment only.

Reynolds v. Bagley, 498 F.3d 549 (6th Cir. 2007). (Habeas)

Background: Following affirmance of state murder conviction and death sentence, 80 Ohio St.3d 670, 687 N.E.2d 1358, petition for writ of certiorari was filed. The United States District Court for the Northern District of Ohio, David D. Dowd, Jr., Senior District Judge, denied the petition and petitioner appealed.

Holdings: The Court of Appeals, Boyce F. Martin, Jr., Circuit Judge, held that: (1) habeas petitioner was not entitled to evidentiary hearing; (2) prospective juror's comments during voir dire did not unconstitutionally taint jury venire; (3) defense counsel was not deficient for failing to retain forensic psychologist; (4) defense counsel's failure to retain an alcoholism expert did not prejudice petitioner; (5) error in filing sentencing order prior to completion of sentencing hearing was harmless; and (6) state Supreme Court's independent review of aggravating circumstances and mitigating factors was not an unreasonable application of federal law. Affirmed.

BOYCE F. MARTIN, JR., Circuit Judge.

Petitioner Lawrence Reynolds was convicted and sentenced to death by an Ohio jury for the 1994 murder of Loretta Foster. After exhausting his state court appeals, both direct and collateral, he filed a petition for habeas corpus in federal district court. The district court denied Reynolds's petition, and we now AFFIRM the district court.

I

In the late afternoon or early evening of January 11, 1994, Lawrence Reynolds assaulted, robbed, and killed his neighbor, Loretta Foster, in her home. He took forty dollars in cash and a blank check from her purse, and left her almost-nude body lying on the living room floor. Later that same night, Reynolds told two friends much of what he had done. Uncertain whether to believe him, the two went to Foster's home, looked through the living-room window, and saw the body. They alerted the police, who arrested Reynolds early the next morning.

Reynolds's father consented to a search of his son's bedroom. (Reynolds was twenty-seven years old at the time of his acts, and continued to live at home.) The search revealed several items of physical evidence later used against Reynolds at trial: (1) gloves and a camouflage jumpsuit, both smeared with blood of the same type as Foster's and containing fibers matching those from a red jacket found in her bedroom; (2) a piece of rope identical to that used on Foster, stained with blood of her type and containing human hair matching her own; (3) a section of a tent pole, in keeping with what Reynolds had told his friends he brought to Foster's house; and (4) a blank check drawn on Foster's account. An autopsy concluded that Foster had died from strangulation. Based on the color of the bruises on her wrists, the coroner testified that Foster had been alive when tied up. The coroner was unable to find any physical evidence of sexual conduct.

While in jail, Reynolds told a fellow inmate essentially the same story as he had told his friends, but with more, at times conflicting, details. For example, Reynolds stated to the inmate that he had “tried to stick his meat in her,” and yet when the inmate questioned Reynolds specifically on the matter, he denied trying to rape her.

An Ohio jury convicted Reynolds of aggravated robbery, aggravated burglary, kidnaping, and attempted rape, as well as aggravated murder (of the felony-murder type) with four death-penalty specifications attached. He was sentenced to 38-to-90 years' imprisonment and death. He unsuccessfully sought relief via direct appeal. State v. Reynolds, No. 16845, 1996 WL 385607 (Ohio Ct.App. July 10, 1996), aff'd, 80 Ohio St.3d 670, 687 N.E.2d 1358 (Ohio), cert. denied, 524 U.S. 930, 118 S.Ct. 2328, 141 L.Ed.2d 702 (1998). He was also unsuccessful in obtaining state post-conviction relief and was denied an evidentiary hearing, which he sought in order to buttress his post-conviction claims. State v. Reynolds, No. 94-01-0158 (Summit County Ct. Com. Pl. Mar. 27 & Apr. 8, 1998), aff'd, No. 19062, 1999 WL 980568 (Ohio Ct.App. Oct. 27, 1999), juris. denied, 88 Ohio St.3d 1425, 723 N.E.2d 1113 (2000). Reynolds did not file a Murnahan motion, which is Ohio's vehicle for raising ineffective assistance of appellate counsel claims. See State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, syllabus ¶ 2 (1992).

On February 1, 2001, Reynolds filed a federal habeas corpus petition raising 19 claims. The petition was denied, and he now appeals this ruling, citing five issues for review. A certificate of appealability was granted on each of the five issues.

II

Reynolds's federal habeas petition was filed subsequent to the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996, and thus its provisions govern this court's review. Under AEDPA, a federal court may not grant habeas relief unless the state court's adjudication of the claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

Under the “unreasonable application” prong of this section, the prong most relevant to the instant case, “[a] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.” Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). Rather, “[i]n order for a federal court to find a state court's application ... ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous[;] [it] must have been ‘objectively unreasonable.’ ” Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As this court has stated, “a federal habeas court must ask whether the state court's application of clearly established federal law was objectively reasonable. If the federal court finds that, viewed objectively, the state court has correctly identified the governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the prisoner's case, it may grant the writ.” Millender v. Adams, 376 F.3d 520, 523 (6th Cir.2004).

In considering a district court's decision to deny an evidentiary hearing, which we normally review for abuse of discretion, see White v. Mitchell, 431 F.3d 517, 532 (6th Cir.2005), we must also keep the precepts of AEDPA deference in mind. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (“Because the deferential standards prescribed by [28 U.S.C.] § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.”).

A. Denial of Evidentiary Hearing

Reynolds's principal argument on appeal is that he was improperly denied an evidentiary hearing, during both state and federal habeas proceedings, to adduce evidence in support of his ineffective assistance of trial counsel claim and his claim regarding deficiencies in the trial court's sentencing opinion. He relies primarily on two cases from outside this circuit in support: Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir.1994) (“In a capital case, a habeas petitioner who asserts a colorable claim to relief, and who has never been given the opportunity to develop the factual record on that claim, is entitled to an evidentiary hearing in federal court.”); and Buenoano v. Singletary, 963 F.2d 1433, 1439 (11th Cir.1992) (“A federal court must hold an evidentiary hearing if the [habeas] petitioner did not receive a full and fair hearing in the state courts.”). The evidentiary hearing was required, Reynolds maintains, because “[i]n order for a reviewing court to determine whether trial counsel's decisions were a result of a reasoned strategic decision not to present expert testimony or other mitigating evidence to the jury, the court must review trial counsel's reasons for their failures,” and “[t]he only way to obtain this information is through discovery or an evidentiary hearing.” Appellant's Br. at 14.

A peculiar procedural twist seems at first blush to favor Reynolds. The trial judge who presided over both the guilt and penalty phases of Reynolds's trial, Judge Schneiderman, was also assigned to Reynolds's post-conviction proceedings. Judge Schneiderman scheduled an evidentiary hearing for March 30, 1998. In anticipation of the hearing, Reynolds issued almost twenty subpoenas to various individuals and entities, such as the Cuyohoga Falls Police Department, Cuyohoga Falls General Hospital, and even Judge Schneiderman himself (based on Reynolds's allegations of improprieties in the preparation of the judge's sentencing opinion). Joint App'x at 1060-1102. Judge Schneiderman became a potential witness by virtue of this subpoena, and thus he voluntarily recused himself from further proceedings and post-conviction matters were reassigned to a different judge, Judge Hayes. Judge Hayes denied the evidentiary hearing that had been granted by his predecessor, and subsequently dismissed Reynolds's petition for post-conviction relief. Judge Hayes's denial of the evidentiary hearing was based on his finding that Reynolds had been given “ample time,” id. at 1119, to develop a factual basis for his ineffective assistance claims-be it in respect to how his alcoholism was handled at trial and mitigation, id. at 1118-1121, what further mitigating evidence generally might have been presented, id. at 1121-22, or what further neurological testing could have been conducted on Reynolds, id. at 1129-30-and yet had come up with precious little to justify a hearing. Reynolds now maintains that Judge Hayes's decision was in error because [p]ost-conviction counsel had conducted extensive investigation in preparation for the hearing and was prepared to present a number of witnesses and experts, including a psychologist and neuropsychologist, to factually develop Reynolds' claims.... Had an evidentiary hearing been granted testimony would have been presented of serious incidents of abuse in the Reynolds' home and of Reynolds' father's serious alcohol problem. Appellant's Br. at 15.

Judge Hayes's decision not to conduct an evidentiary hearing was reviewed by the Ohio Court of Appeals. State v. Reynolds, No. 19062, 1999 WL 980568 (Ohio Ct.App. Oct. 27, 1999) (unpublished). The appeals court noted that “[w]hen a new judge has been appointed after the recusal of the trial judge in a post-conviction petition, it is incumbent on the new judge to consider all motions de novo.” Id. at *11 (citing State v. Perdue, 2 Ohio App.3d 285, 441 N.E.2d 827, 829 (1981)). In other words, the appeals court held, the mere fact that Judge Schneiderman had originally scheduled an evidentiary hearing did not preclude Judge Hayes from making an independent determination that such a hearing was not ultimately required. As to the merits of Judge Hayes's decision, the appeals court held that under Ohio Rev.Code § 2953.21(C), a petitioner is only entitled to an evidentiary hearing if he can show, in the first instance, “substantive grounds for relief.” See State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819, 822 (1980) (“Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness.”) (emphasis added). Because Reynolds had made no threshold showing of these substantive grounds for relief nor had he come forward with any showing that his trial counsel's actions materially prejudiced the outcome of the case, the appeals court concluded that Judge Hayes did not err in denying his request for an evidentiary hearing.

We now hold that Reynolds is precluded from relief on his evidentiary hearing claim. First, as articulated by the Ohio Court of Appeals, under Ohio's collateral review procedures, specifically Ohio Rev.Code § 2953.21(C), Reynolds is not guaranteed an evidentiary hearing; rather, he is only entitled to one upon a showing that he has substantive grounds for relief. Jackson, 413 N.E.2d at 822; see also State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823, 826 (1983). Reynolds puts the cart before the horse by arguing that evidence obtained from the people he intended to subpoena would have provided exactly such grounds for relief. The point is that he must make an initial evidentiary showing-through affidavits and the like-that he has grounds for relief. And here, the state judge determined that this initial showing was insufficient, especially in light of the fact that Reynolds had been given ample discovery time since the termination of his direct appeal to make the showing.

Reynolds's argument, at least with respect to the ineffective assistance claims, also fails for a second reason. Judge Hayes noted during state post-conviction proceedings that “[e]vidence outside the record ... will not guarantee a hearing, if the petition does not allege facts to show that the issue could not have been brought on direct appeal.” Joint App'x at 1116; see also State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, 109 (1967) (“Our statutes do not contemplate relitigation of those claims in postconviction proceedings where there are no allegations to show that they could not have been fully adjudicated by the judgment of conviction and an appeal therefrom.”). In this case, Reynolds was represented by different counsel from his trial counsel when he sought direct appeal. As such, he had the duty to bring the instant ineffective assistance claims at that juncture, State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784, 786 (1994), and he fails to explain now why these claims were not already properly resolved, or why any new evidence he now hopes to use could not have been discovered at the time of his direct appeal. Reynolds could have argued that his state appellate counsel was ineffective for not adequately investigating/discovering evidence of his trial counsel's inadequate performance, but he is procedurally defaulted from making such a claim because he failed to file a Murnahan motion in state court, as noted in the procedural history above.

Finally, Reynolds's claim fails due to the strictures of AEDPA, as recently applied to the evidentiary hearing context in Schriro. While it is true that a district court, sitting in federal habeas, has the power independently to grant an evidentiary hearing, the federal court's decision owes considerable deference to that of the state courts on the same issue. 127 S.Ct. at 1940. Here, it does not appear that Reynolds is asking for an evidentiary hearing to present evidence any different from what he hoped to present to Judge Hayes almost a decade ago. Since we do not find that Judge Hayes unreasonably denied the evidentiary hearing back then, it almost goes without saying that the district court did not abuse its discretion in denying effectively the same evidentiary hearing now. Even at the federal district court level, having had even more time to put on a case, Reynolds appears unable to have marshaled evidence to convince the district court that an evidentiary hearing would be necessary, or that the state courts' resolution of the matter had been unreasonable. He continues to assert that he needs the evidentiary hearing to factually develop his constitutional claims, but he has failed at every level to make a factual showing (as opposed to conclusory statements) as to why those claims merit development through the crucible of an official hearing.

At bottom, Reynolds is asking us to accept the generalized proposition that a defendant sentenced to death should always be entitled to an evidentiary hearing on post-conviction review: that is, if he is denied one at the state level, then he must be granted one at the federal level. Yet Schriro expressly refutes this proposition. Id. (“[A] district court is not required to hold an evidentiary hearing.”). We might be inclined to agree with Reynolds if it were true that an evidentiary hearing were the sine qua non of evidence-gathering and evidence-presenting. But of course, there are other ways to present evidence, and as discussed above, an evidentiary hearing was decidedly not required for Reynolds to be able to make an initial factual showing of his counsel's deficiencies; instead, affidavits and other readily-obtainable forms of evidence would have sufficed.

We therefore affirm the district court's denial of Reynolds's request for an evidentiary hearing.

B. Failure to Timely Dismiss Prospective Juror for Cause

In his second claim, Reynolds argues that statements made by Officer John Vanhyning, an Ohio police officer, unconstitutionally tainted the jury venire. Officer Vanhyning was himself on the jury venire. He revealed during voir dire that he knew several of the police officers involved in Reynolds's case, including at least one, Detective Gay, who would be testifying against Reynolds. When asked by the prosecutor whether he would be able to objectively evaluate Gay's testimony even though he knew Gay, Vanhyning did not directly answer the question, but rather said: “I have always found him to be completely truthful.” Later, when the prosecutor asked Vanhyning if he thought it was problematic that he had worked with the prosecutor on previous occasions, Vanhyning stated that he could remain objective-but prior to doing so noted how “efficient” the prosecutor was, and how the prosecutor demanded a lot from police officers before “moving forward” with a prosecution. After hearing more about the relationship between Officer Vanhyning and some of the members of the prosecution, the trial court excused him from the jury venire, noting:

Well, you know, Officer Vanhyning, I think I am going to take the bull by the horn. I am going to excuse you. And I hope I don't insult your integrity in any way, I don't mean to do that. But you are pretty close to it, not because you are close to this case, but you are close to law enforcement, and it has been your whole life. Joint App'x at 1667.

Reynolds now claims that this dismissal came too late. He argues that Vanhyning's statements, which were made in the presence of the entire jury venire, cast a sheen of credibility on the prosecutor by indicating how “efficient” he was and how “completely truthful” some of his testifying officers would be. Reynolds points out that his defense counsel had previously moved to strike Vanhyning for cause, but the court had denied the motion, and then during the subsequent voir dire Vanhyning's pro-prosecution statements were heard by the entire jury venire. Reynolds's counsel did not, however, move to strike the entire venire based on those statements.

Reynolds's claim rests on a very tenuous theory, one which the district court labeled as a “sub silentio argument [ ] that the trial court has a sua sponte duty to discharge the entire jury panel, even in the absence of a defense motion to that effect.” D. Ct. Op., 1/13/2003, at 20. We are inclined to agree. Although Vanhyning's statements could theoretically have biased ultimately-seated jurors in favor of the prosecution and its witnesses, Reynolds has failed to show that there was any actual bias, especially given the trial judge's subsequent curative instruction that jurors would have to decide the case for themselves. See Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (noting that a trial judge's determination of actual bias “is essentially one of credibility, and therefore largely one of demeanor,” and, as such, is entitled to special deference). Nor is this a case in which the jury venire appears to have been predisposed to convict Reynolds, so that Vanhyning's comments might have only heightened their predisposition, the trial judge's curative instructions notwithstanding. Cf. Foley v. Parker, 488 F.3d 377, 394-96 (6th Cir.2007) (Martin, J., dissenting). Thus while we can conceive of a hypothetical in which a single veniremember's comments, prior to his dismissal, might irreparably prejudice the remaining veniremembers against the defendant, the instant case does not approach that hypothetical. Therefore we reject Reynolds's second claim.

C./D. Ineffective Assistance of Trial Counsel for Failure to Obtain Proper Expert Assistance during Trial and Mitigation

Reynolds claims that he was unconstitutionally denied effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because his trial counsel failed to request: (1) “the assistance of an independent pharmacologist, toxicologist, or alcohol expert,” (2) “the assistance of a forensic psychologist to properly investigate, obtain and prepare information to be presented to the jury,” and (3) “the assistance of a competent neurological expert to examine Reynolds to determine if his thought processes were impaired as a result of multiple head injuries he suffered as a child or as a result of his long-term alcohol abuse.” Appellant's Br. at 35.

Reynolds does not argue that his counsel failed entirely to retain and present experts. Prior to trial, for example, Dr. Levkowitz performed a neurological examination of Reynolds. The examination was cursory (lasting approximately 5 minutes), and no CAT scan was performed, but neither did it reveal any neurological problems. Joint App'x at 1019 (Pappas Aff.). And during the mitigation phase, Reynolds's counsel presented the testimony of Dr. Bendo, a psychologist. Dr. Bendo opined that the “primary problem” throughout Reynolds's life was likely a combination of his alcoholism and “antisocial personality,” i.e., the fact that he was “pretty much alone in the world.” Id. at 1882 (Bendo Test.). When asked whether Reynolds's conduct on the night of the murder was mitigated by his psychological condition, Dr. Bendo responded:

I think it was mitigated by his psychological condition, certainly, in terms of use of poor judgment, some of the impulsivity that goes with that.... What's confusing is that this type of person doesn't commit this type of crime, it is a low probability.... They could commit crimes like DUI, or petty offenses or those kinds of things. I think Larry [Reynolds] shows some of that in his history. But it is not the kind of profile that is seen commonly in this particular kind of case. Id. at 1880-81.

Reynolds's contention is that Levkowitz's examination was not thorough enough and Bendo's testimony was “deficient,” both because he was relatively inexperienced as a mitigation expert and because he was a general psychologist, not a forensic psychologist. At bottom, Reynolds is claiming that Levkowitz and Bendo were not the “best” experts. While this may or may not be true, it is not enough to clear the Strickland prejudice hurdle, let alone the Strickland performance hurdle. See Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir.2000) (noting that a habeas petitioner is not entitled to relief simply because the petitioner's expert “did not testify as favorably as the petitioner had hoped”); accord Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir.2006).

As to Reynolds's claims regarding an alcohol expert, the question is arguably closer because on this issue no expert was presented at all. To be sure, numerous references were made by trial counsel (and by witnesses) regarding Reynolds's chronic alcoholism and his state of drunkenness at the time of the murder. But Reynolds maintains that the jury was given only “generic” information about his alcoholism, and thus jurors were left to draw only from personal experience how alcohol might have affected Reynolds on the day of the murder. Appellant's Br. at 39. What was missing, claims Reynolds, was testimony to the effect that “alcohol dependence is universally accepted by the medical profession as being a disease.” Id. at 38 (emphasis added). And because trial counsel conceded in his opening statement that Reynolds was guilty of the murder of Ms. Foster, Reynolds now maintains that the alcoholism defense was practically his only hope of mitigation during the guilt phase. As such, hindsight leads us to wonder whether trial counsel exercised sound judgment in relying exclusively on the presentation of lay testimony regarding Reynolds's alcoholism and its effect on his behavior. Wonder as we might, however, we cannot say that the Ohio state courts were unreasonable in viewing trial counsel's strategy not to present an alcohol expert-whether this was indeed “strategic” or not-as not prejudicial to the outcome of Reynolds's case. For example, as the Ohio Court of Appeals concluded:

Reynolds claims that he was prejudiced by defense counsel's failure to request, and thus the trial court's failure to appoint, certain experts to assist in the presentation of Reynolds' alcoholism as a mitigating factor and a defense as to the requisite mens rea of the offenses charged. His claim is supported by the affidavit of Dr. James Eisenberg, a forensic psychologist, in which he stated, “a toxicologist, pharmacologist, and/or alcohol evaluation should have been suggested by [mitigation witness] Dr. Bendo.”

This Court has stated that, “a postconviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used at trial.” State v. White (Jun. 16, 1999), Summit App. No. 19040, unreported, at 12 [1999 WL 394938], quoting State v. Combs (1994), 100 Ohio App.3d 90, 103, 652 N.E.2d 205, judgment affirmed (1994), 69 Ohio St.3d 1480, 634 N.E.2d 1027 and certiorari denied (1995), 513 U.S. 1167, 115 S.Ct. 1137, 130 L.Ed.2d 1097. Furthermore, Reynolds offers no evidence that there is a reasonable probability that the addition of expert witnesses would have changed the outcome of the guilt or the sentencing phase of his trial. Thus he does not offer evidence of sufficient operative facts to demonstrate substantive grounds for relief. 1999 WL 980568, at *4.

We note also that this court has recently rejected a habeas petitioner's similar claim that his counsel was deficient for not having retained the “proper” expert to testify to his alcoholism and its causal connection to the murder he committed. See Nields v. Bradshaw, 482 F.3d 442, 455-57 (6th Cir.2007) (suggesting that counsel's alleged failure to elicit “causal relationship” testimony from mitigation witnesses-i.e., testimony that the defendant's alcoholism necessarily caused his violent conduct-likely says less about counsel's inadequacy than about the fact that no such relationship actually existed). Ultimately, Reynolds's claim with regard to expert testimony fails for similar reasons to what we have discussed regarding his request for an evidentiary hearing. He has failed to convince us-or any other court, state or federal-through presentation of affidavits or other evidence, that testimony from different experts, or new experts, would have in any way altered the outcome of his trial.

E. Due Process Violations Flowing from the Sentencing Opinion

Reynolds's final claim of error is that his sentencing proceedings were fundamentally unfair for two reasons: first, because the trial court filed its sentencing opinion during the sentencing proceeding itself, suggesting that the judge's mind had been made up and his opinion a fait accompli, regardless of anything that might have transpired during the sentencing hearing; and second, because the trial court's opinion failed to properly state how the court had weighed aggravating and mitigating factors.

The penalty phase of Reynolds's trial ended on June 1, 1994, when the jury recommended that Reynolds be put to death. The sentencing hearing was held eight days later, early in the morning of June 9, 1994. At that hearing, the court sentenced Reynolds on the non-capital counts (after first allowing counsel for both parties to speak and offering Reynolds the opportunity to speak), then proceeded to address the sentence for the aggravated-murder conviction. The written death sentence appears to have been filed roughly midway through the hearing. Before pronouncing the sentence of death orally, however, the trial judge made this announcement: “This Court's written decision has been prepared. It is now being filed, and copies will soon be available to counsel.” The trial judge then gave counsel for both parties an opportunity to argue what Reynolds's sentence should be. Next, and without giving Reynolds the opportunity to make a final statement, the trial judge orally sentenced Reynolds to death.

Reynolds appealed what he viewed as a gross procedural error on the part of the trial court. The Ohio Supreme Court agreed with him that the trial court had erred, but held that the error was harmless because, among other considerations: (a) the trial court had already heard all of the evidence, and (b) the arguments that defense counsel advanced at the hearing were substantially the same as those that counsel had already advanced during the penalty phase. 687 N.E.2d at 1372. The district court found that the timing of the filing of the sentencing opinion, “whether before or after the pronouncement of the sentence, does not give rise to the violation of a constitutional right.” D. Ct. Op., 1/13/03, at 63. We conclude that the Ohio Supreme Court's resolution of this issue was a reasonable one, because Reynolds has been unable to make a showing that he presented any new arguments to the trial court after the court filed its written opinion. The trial court's actions were ill-advised, to be sure, but in the final analysis they did not deprive Reynolds of a constitutional right.

We also reject Reynolds's second argument, involving what he contends were the trial court's missteps in treating aggravating and mitigating factors in its opinion. The Ohio Supreme Court analyzed this claim on direct review: We conclude that the trial court's failure to unambiguously explain why the aggravating circumstances outweighed the mitigating factors is not prejudicial error.

While the trial court discussed the facts surrounding the crime (a nonstatutory factor) in its opinion, it did not weigh those facts as aggravating circumstances. Instead the court reviewed the nature and circumstances of the crime, as it was required to do pursuant to R.C. 2929.03. We conclude that the trial court did not consider non-statutory factors.

Reynolds argues that the trial court did not give “significant” weight to his alcoholism. The statute does not require that significant weight be accorded. The weight, if any, given to a mitigating factor is a matter for the discretion of the individual decision-maker. We conclude that the trial court properly weighed the mitigating factor of alcoholism.

We note, sua sponte, that the trial court did not correctly weigh the aggravating circumstances and mitigating factors. The court weighed each aggravating circumstance separately against the mitigating factors instead of weighing all the aggravating circumstances against all the mitigating factors. The trial court stated in its opinion that “the state of Ohio has proved beyond a reasonable doubt that each aggravating circumstance for which he was found guilty outweighed all the mitigating factors.” Although this issue was not raised by Reynolds, our independent review will cure the error.

This court is required by R.C. 2929.05 to independently review this case and conduct an appropriateness and proportionality evaluation as to the death sentence. We conclude that the evidence in the record supports a finding that Lawrence Reynolds, Jr. committed the aggravated murder of Loretta Foster while committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated robbery, and aggravated burglary. Moreover, the evidence establishes that Reynolds was the principal offender in the commission of the aggravated murder.

The nature and circumstances of the crime offer nothing in mitigation for Reynolds. His history, character, and background suggest some mitigating factors. Reynolds was raised in a middle class home by both parents. He began drinking alcohol in his early teens. After graduating from high school, he served in the Army for six years before being honorably discharged. Upon discharge, he moved in with his parents. He eventually found employment and moved into his own apartment. Throughout this time, the use of alcohol continually plagued his life.

As his alcohol usage increased, it affected his employment, leading to his termination from his job. In January 1992, he was arrested for driving under the influence and failing to comply with a police officer's signal or order. He moved back in with his parents and completed alcohol treatment as part of his probation, but soon began drinking again. He appears to have been employed, or earning some money, until about four months prior to the crimes. He then began to sell his personal belongings to support his drinking habit. By the time of the murder, he had become desperate because he had nothing more to sell.

Dr. Joseph Bendo, a psychologist, diagnosed Reynolds as having an adjustment disorder, which caused him to react more strongly than the stressors or the environment in his life might warrant. Dr. Bendo concluded that Reynolds had an antisocial personality type with addictive-proneness to alcohol and drugs. His drinking was a product of his inability to relate effectively with people. While this proclivity does not meet the mitigating factor standard of R.C. 2929.04(B)(3), we will consider it under R.C. 2929.04(B)(7).

In an unsworn statement, Reynolds expressed his remorse to the victim's family and to his own family and asked the jury to spare his life.

We weigh the aggravating circumstances against the following mitigating factors: lack of a substantial criminal record (R.C. 2929.04[B][5] ), honorable military service to his country, alcoholism, emotional problems, and remorse for the crime. The lack of a substantial criminal record is entitled to relatively significant weight. The remaining factors, such as his military service, are entitled to some weight. Another factor to consider is the prosecutor's “overzealous” application of the aggravating circumstances “to the same act or indivisible course of conduct,” which was criticized in [State v.] Jenkins [15 Ohio St.3d 164, 473 N.E.2d 264 (1984) ].

We conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. 687 N.E.2d at 1373-74 (citations omitted and emphasis added).

The Ohio Supreme Court thus employed the practice of “appellate reweighing” specifically authorized under Clemons v. Mississippi, 494 U.S. 738, 748, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Reynolds presents no evidence that the state supreme court considered an unconstitutional or unsubstantiated aggravating circumstance. Nor does he allege that the court failed to consider any mitigating factors for which evidence was presented. We do not find the Ohio Supreme Court's appellate reweighing to have been contrary to, or an unreasonable application of, clearly established federal law, and thus we deny Reynolds's final habeas claim.

III

For all of the reasons stated above, we deny Reynolds's habeas petition, thereby AFFIRMING the judgment of the district court.

  

The victim

Loretta Mae Foster was a 67-year-old widow who baby-sat children in her neighborhood and lived three doors down from Reynolds in Cuyahoga Falls near Akron.