IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee,

-vs- Case No. 2004-0485

DONALD KETTERER,

Appellant. Death Penalty Case

On Appeal From The Court Of Common Pleas Of Butler County, Case No. 2003 CR-03-0309

APPLICATION FOR REOPENING PURSUANT TO S.CT. PRAC. R. XI, SECTION 6

ROBIN N. PIPER #0023205 DAVID H. BODIKER Prosecuting Attorney Ohio Public Defender

DANIEL G. EICHEL #0008259 RANDALL L. PORTER #0005835 First Assistant Prosecuting Attorney Assistant State Public Defender Counsel of Record MICHAEL A. OSTER, JR. #0076491 Assistant Prosecuting Attorney Office of the Ohio Public Defender 8 East Long Street, 11th Floor Butler County Prosecutor's Office Columbus, Ohio 43215 Government Services Center (614) 466-5394 315 High Street, 11th Floor Fax: (614) 644-0703 Hamilton, Ohio 45011 porterrCcvond. state.oh.us (513) 887-3474

COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT

LE JAN 2 3 2007 MARCIA J MENGEL, CLERK SUPREME COURT OE OHIO IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ) ) Appellee, ) Case No. 2004-0485 ) -vs- ) ) Butler C.P. CR 2003-03-0309 DONALD KETTERER ) ) Appellant. )

APPLICATION FOR REOPENING PURSUANT TO S.CT. PRAC. R. XI, SECTION 6

Appellant Donald Ketterer moves this Court, pursuant to S.Ct. Prac. R. XI,

Section 6, to reopen his direct appeal to this Court because he was denied his constitutional right to effective assistance of counsel during that appeal. A Memorandum in Support is attached and incorporated by reference.

ffice of the Ohio Publid47efender 8 E. Long Street, 11th Floor Columbus, Ohio 43215-2998 (614) 466-5394 (Voice) Fax: (614) 644-0703 (Facsimile) porteiT^?opd. state.oh.us

COUNSEL FOR APPELLANT

1 MEMORANDUM IN SUPPORT

1. INTRODUCTION This Court, in State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (1992), and its subsequent enactment of S.Ct. Prac. R. XI, Section 6, established the procedure for raising claims of ineffective assistance of appellate counsel arising on appeals of right to this

Court. For the reasons identified herein, this Court should order that Appellant's direct appeal be reopened.

II. PROCEDURAL POSTURE

On March 4, 2003, the Butler County Grand Jury issued a five-count indictment charging Donald Ketterer with the aggravated murder, aggravated robbery of Lawrence Sanders on February 24, 2003, the theft of Sanders' motor vehicle and the burglary and aggravated burglary of his residence [Exhibit 3]. The aggravated murder count contained three capital specifications [Id.].

On January 27, 2004, on advice of defense counsel, Detective Ketterer waived his right to a jury trial and pled guilty to the entire indictment [Exhibits 4 and 5]. On January 28, and

29, 2004 a three judge panel conducted an evidentiary hearing as to the sufficiency of the evidence to convict Appellant. At close of the hearing the three judge panel found Appellant guilty of all counts and specifications. [01/29/04, Tr. 222; Exhibit 6].

On Febniary 2-4, 2004, the three judge panel conducted the sentencing hearing.

At the conclusion of that hearing the panel found that the aggravating circumstances outweighed the mitigating factors by proof beyond a reasonable doubt [Exhibit 7]. On Count 1, the panel sentenced Appellant to death and imposed the following sentences as to the other charges:

Count Two, a sentence of nine years and a $2,000 fine; Count Three, a consecutive sentence of

2 nine years and a $2,000 fine; Count Four, a sentence of seventeen months to be served

concurrent to the terms of imprisonment imposed on Counts Two and Three; and Count Five, a

sentence of four years to be served consecutive to the other charges and a $1,000 fine [Exhibit

8].

On March 19, 2004, Donald Ketterer filed his Notice of Appeal with this Court.

On October 25, 2006, this Court affirmed Appellant's convictions and sentences. State v.

Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283 [Exhibit 2]

III. APPELLATE COUNSEL FAILED TO RAISE MERITORIOUS ISSUES

The Due Process Clause of the Fourteenth Amendment guarantees a defendant the right to effective assistance of counsel on a criminal appeal of right. Evitts v. Lucey, 469 U.S.

387, 396 (1985). If direct appeal counsel in the in the present appeal had raised the following six propositions of law to this Court, there is a reasonable probability that the outcome of this appeal would have been different. With respect to those issues that trial counsel failed to adequately preserve for appellate review, direct appeal counsel should have raised the issues both in terms of plain error and ineffectiveness of trial counsel.

PROPOSITION OF LAW NO. I

AN INDIVIDUAL'S CONSENT TO THE SEARCH OF HIS PERSONAL IS ONLY CONSTITUTIONALLY FIRM IF IT IS AN VOLUNTARY, KNOWING AND INTELLIGENT DECISION. Fourth and Fourteenth Amendments.

On February 25, 2003 at 7:30 p.m. the investigating officer arrested Appellant

[4.03.03, Tr. 93-94]. At the time of his arrest, he was highly intoxicated. He had been drinking at a bar from at least 4:00 p.m. unti17:00 p.m. [1.28.04, Tr. 29-30, 40, 65]. Officer Cifuentes and

Detective Collins both testified that Appellant was intoxicated at the time of his arrest and interrogation. [4.03.03, Tr. 359-61; 4.03.03, Tr. 41].

3 Detective Rogers testified that when Appellant was approached by the arresting

officers, he was talking about crack-cocaine. [Id. at 134]. Appellant suffers from bipolar

disorder. [2.02.04, Tr. 17]. Appellant told the interrogating officers that he consumed his

prescribed medication (Klonopin)with alcohol. [4.03.03 Tr. 165; State's Hearing Exhibit 7].

Afler the detectives arrested him, Appellant executed two consent forms giving

the officers permission to search his coat, bag and his residence. [4.03.03, Tr. 9]. A consent to

search is only valid if it was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973). As a result of his intellectual limitations, intoxication and mental illnesses,

Appellant suffers from an inability to appreciate the implications of his actions and an inability

to understand and appreciate the significance of any waiver of his constitutional rights.

Consequently, Appellant did not knowingly and intelligently wiave his rights as guaranteed by the Fourth and Fourteenth Amendments.

PROPOSITION OF LAW NO. II

AN INDICTMENT MUST CONTAIN ALL OF THE ELEMENTS OF THE OFFENSES CONTAINED THEREIN. Fifth, Sixth and Fourteenth Amendments.

The indictment charged Appellant with the substantive offense of Aggravated

Burglary and that offense also served as one of the capital specifications. [Exhibit 3]. For the indictment to properly charge the offense of Aggravated Burglary, it needed to allege that

Appellant had inflicted, attempted to inflict or threatened to inflict serious physical harm. O.R.C.

2911.01 (A)(3). The indictment only alleged physical harm. [Exhibit 3]

Appellate counsel failed to raise this issue in their initial briefing. [Exhibit 9].

Counsel recognized their error and requested leave to submit briefing on this issue. [Exhibit 10].

This Court denied that motion. [Exhibit 11]. As a result, this Court did not address this issue.

4 The error in the indictment did not provide Appellaut with the proper notice. In re Oliver, 333

U.S. 257, 273; Cole v. Arkansas, 333 U.S. 196, 201 (1948). In addition the error deprived

appellant of his right to have the trier of fact convict him of every essential element of the offense and specification by proof beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979).

PROPOSITION OF LAW NO. III

A DEFENDANT IS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE ATTORNEY WHO REPRESENTS HIM ALSO REPRESENTS A CRUCIAL DEFENSE WITNESS. Sixth, Eighth and Fourteenth Amendments.

One of the two attorneys that represented Appellant at trial, Gregory Howard, had previously been appointed to represent Tim Engle. State v. Engle, Butler C.P. No. CR 2002-11-

1985 [Exhibit 12]. Through out his representation of Appellant in this capital case, Attorney

Howard continued to represent Tim Engle pursuant to that appointment.

Prior to trial defense counsel submitted, for purposes of DNA testing, the hairs that were found in both hands of the victim and buccal swabs taken from Appellant . Celhnark

Laboratory determined that the hairs found in the liands of the victim did not belong to

Appellant. [Exhibit 13]. On January 26, 2004, the prosecution provided notice that Tim Engle would testify against Appellant. [Exhibit 14]. Defense counsel subsequently chose not to place the DNA test results into evidence because the prosecutor intended to call Inmates Engle and

Jasper to rebut the DNA results. [Tr. 229-230].

The Sixth An-iendment guarantees the accused the right to counsel. Powell v.

Alabama, 287 U.S. 45, 58 (1932). This guarantee includes representation that is free of conflicts of interest. Glasser v. United States, 315 U.S. 607 (1942). Attomey Howard suffered a conflict because his assessment of his other client's credibility impacted on the decision of whether to

5 place the DNA results into evidence. Attorney Howard could not have cross examined his other client, Tim Engle. That conflict was imputed to co-counsel Chris Pagan. After the three judge panel sentenced Appellant to die, Attorney Howard did withdraw from his representation of Mr.

Engle because "a conflict of interest has developed whereby he is unable to continue in his representation of the defendant". [Exhibit 15]. By that time it was too late to withdraw, at least with respect to Appellant.

PROPOSITION OF LAW NO. IV

A PROSECUTOR IS REQUIRED TO DISCLOSE IN A TIMELY MANNER PRIOR TO TRIAL, ALL EXCULPATORY EVIDENCE, INCLUDING EVIDENCE THAT IMPEACHES HIS WITNESSES. Fifth, Sixth, Eighth and Fourteenth Amendments.

Defense counsel filed five pleadings requesting discovery. The prosecution in all of its initial and supplemental discovery responses, never acknowledged that it possessed any exculpatory infor-mation.

Seven of the prosecution's witnesses had critical infonnation concerning

Appellant's severe drug and alcohol intoxication state at the time of his arrest. [See 4.03.03, Tr.

29-32, 39-42, 293, 358-361.] The prosecution in discovery never provided this information.

The prosecution alleged that Appellant purchased crack cocaine from Mary

Gabbard at 706 East Avenue just subsequent to the homicide [04.03.03, Tr. 258-273]. Donald

Williams was purchasing the property at 706 East Avenue. [Id., Tr. 260]. Both Gabbard and

Williams were charged as a result of the raid on the East Avenue premises. Both Williams and

Gabbard testified against Appellant [Id. Tr. 242, 297-298]. The prosecutor provided no discovery as to the raid at 706 East Avenue. When defense counsel attempted to broach the issue, the three judge panel repeatedly sustained the prosecutor's objections. [04.03.03, Tr. 246-247, 251-254].

6 While the Aggravated Murder charges were pending against Appellant, the

Hamilton Police Department instituted yet other unrelated felony charges against Williams.

[1.20.04, Tr. 67-68]. Those charges were reduced [Id.]. The prosecution did not provide any information concerning these charges.

Williams had a history of informing for the Hamilton Police Department [4.03.03,

Tr. 142]. The prosecutor did not provide any information concerning Williams' history.

A prosecutor is required to disclose favorable evidence to an accused in a criminal proceeding. Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty of disclosure extends to impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667,

676 (1985). The prosecutor violated that duty in the present case.

PROPOSITION OF LAW NO. V

A DEFENDANT IS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE ATTORNEYS WHO REPRESENT HIM FAIL TO PRESERVE THE RECORD FOR APPELLATE REVIEW AND ENTER INTO INACCURATE STIPULATIONS. Sixth and Fourteenth Amendments.

Appellate counsel filed a motion with this Court to supplement the record with the pretrial statements of two wituesses, Donald Williams and Mary Gabbard and certain grand jury testimony. [Exhibit 18]. Appellate counsel did not file the motion until after they had submitted their briefing. [Exhibits 9 and 18]. This Court granted the Motion. [Exhibit 19]. The trial court was unable to locate the grand jury testimony in question. [Exhibit 20]. As a result, the transcripts were not submitted into the record. [Id.].

Appellate counsel did not raise defense counsel's failure to preserve the grand jury issue for appeal, by insuring that the transcripts in question were properly made part of the

7 record. Because appellate counsel tardily filed their motion to supplement the record, they were not able to include the issue in their Merit Brief They also did not raise defense counsel's ineffectiveness for failing to submit the record with the results of the DNA testing. [Exhibit 13].

Appellate counsel should have also requested that the report be supplemented into the appellate record since it was discussed in the proceedings in the court below.

Appellate counsel determined that as to the witness statements which were supplemented into the record pursuant to this Court's order [Exhibit 20], defense counsel had inaccurately stipulated that the statements were consistent with the testimony of the two witnesses in question, when in fact that the statements were inconsistent. [Exhibit 21]. Appellate counsel realized their error and requested leave to submit supplemental briefing. [Id.]. This

Court denied the motion. [Exhibit 22]. As a result, this Court never addressed the ineffectiveness of trial counsel in failing to cross examine Mary Gabbard and Donald Williams as to their prior statements and instead stipulating that the statements were consistent.

PROPOSITION OF LAW NO. VI

A DEFENDANT WHO IS SENTENCED PURSUANT TO THE PROCEDURES THAT THIS COURT FOUND INFIRM IN STATE V. FOSTER IS ENTITLED TO BE RE-SENTENCED. Sixth and Fourteenth Amendments.

The procedures that the trial court employed to sentence Appellant on the non- capital charges were constitutionally infirm. State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856.

Appellate counsel failed to raise this issue in their initial briefing. [Exhibit 9]. Counsel recognized their error and requested leave to submit briefing on this issue. [Exhibit 23]. This

Court denied the motion. [Exhibit 24]. In capital cases in which the appellant has properly raised the issue, this Court has granted relief. State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶¶

130-140.

8 CONCLUSION

Appellant Donald Ketterer, has demonstrated that there are genuine issues regarding whether he was deprived of effective assistance of counsel on direct appeal. Appellant requests that this Court grant this Application and reopen his direct appeal. In the alternative, he requests that this Court to refer the matter to special magistrate for purposes of factual development.

Respectfully submitted,

L. )RTE)'i (Ob9-5835) MsiYtant State P lie efender ounsel of Reco

Office of the Ohio Public Defender 8 East Long Street, l lth Floor Columbus, Ohio 43215 (614) 466-5394 (614) 644-0703 - Fax

COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Application for Reopening Pursuant To S.Ct. Prac. R. XI, Section 6 was forwarded by first-class, postage prepaid U.S. Mail to D iel G. Eichel, First Assistant Butler County Prosecuting Attorney^ and Michael A. Oster Jr A sistant Butler County Prosecutor, Government Services Cenf^r,^315 High Street, Ha rlt Ohio 45011, on this 23rd day of January, 2007.

COUNSEL FOR APPELLANT

9 IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ) ) Appellee, ) Case No. 2004-0485 ) -vs- ) ) Butler C.P. CR 2003-03-0309 DONALD KETTERER ) ) Appellant.

AFFIDAVIT OF RANDALL L. PORTER

STATE OF OHIO ) ) ss: COUNTY OF FRANKLIN )

I, Randall L. Porter, after being duly sworn, hereby state as follows:

I am an attorney licensed to practice law in the state of Ohio since 1977. I have been an Assistant State Public Defender in Ohio since 1985. My primary area of practice is capital litigation. I am certified under Sup. R. 20 as lead counsel at trial and appellate counsel in capital cases.

2. Due to my focused practice of law and niy attendance at death-penalty seminars, I am aware of the standards of practice involved in the appeal of a case in which the death sentence was imposed or recommended.

3. The Due Process Clause of the Fourteenth Amendment guarantees effective assistance of counsel on an appeal as of right. Evitts v. Lucey, 469 U.S. 587 (1985).

4. The initial responsibility of appellate counsel, once the transcript is filed, is to ensure that the entire record has been filed with this Court. Appellate counsel has a fundamental duty in every criminal case to ensure that the entire record is before the reviewing courts on appeal. Ohio R. App. P. 9(B); Ohio Rev. Code Ann. § 2929.05 (Anderson 1995); State ex rel. Spirko v. Judges of the Court of Appeals, Third Appellate District, 27 Ohio St. 3d 13, 501 N.E. 2d 625 (1986).

EXHIBIT ^ ^ After ensuring that the transcript is complete, counsel must then review the record for purposes of issue identification. This review of the record not only includes the transcript, but also the pleadings and exhibits.

For counsel to properly identify issues, they must have a good knowledge of criminal law in general. Most trial issues in capital cases will be decided by criminal law that is applicable to non-capital cases. As a result, appellate counsel must be informed about the recent developments in criminal law when identifying potential issues to raise on appeal. Counsel must remain knowledgeable about recent developments in the law after the merit brief is filed.

7. Since the reintroduction of capital punishment in response to the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972), the area of capital litigation has become a recognized specialty in the practice of criminal law. Numerous substantive and procedural areas unique to capital litigation have been carved out by the United States Supreme Court. As a result, anyone who litigates in the area of capital punishment must be familiar with these issues in order to raise and preserve them for appellate and post-conviction review.

8. Appellate representation of a death-sentenced client requires recognizing that the case will most likely proceed to the federal courts at least twice: first on petition for Writ of Certiorari in the United States Supreme Court, and again on petition for Writ of Habeas Corpus filed in a federal district court. Appellate counsel must preserve all issues throughout the state court proceedings on the assumption that relief is likely to be sought in federal court. The issues that must be preserved are not only issues unique to capital litigation, but also case-and fact-related issues, unique to the case, that impinge on federal constitutional rights.

9. It is a basic principle of appellate practice that to preserve an issue for federal review, the issue must be exhausted in the state courts. To exhaust an issue, the issue must be presented to the state courts in such a manner that a reasonable jurist would have been alerted to the existence of a violation of the United States Constitution. The better practice to exhaust an issue is to cite directly to the relevant provisions of the United States Constitution in each proposition of law and in each assignment of error to avoid any exhaustion problems in the federal courts.

10. It is important that appellate counsel realize that the capital reversal rate in the state of Ohio is eleven percent on direct appeal and less than one percent in post- conviction. It is my understanding that forty to sixty percent (depending on which of several studies is relied upon) of all habeas corpus petitions are granted. Therefore, appellate counsel must realize that in Ohio, a capital case is very likely to reach federal court and, therefore, the real audience of the direct appeal is the federal court. 11. Based on the foregoing standards, I have identified eight propositions of law that should have been presented to this Court by appellate counsel. The propositions of law identified in this application for reopening were not presented to this Court.

12. Based on my evaluation of the record and understanding of the law, I believe that if these propositions of law had been properly presented for review, this Court would have granted relief. Also, those errors would have been preserved for federal review.

13. Therefore, Donald Ketterer, was prejudiced as a direesult of the deficient performance of his appellate counsel on his direct app to this Court.

Further Affiant sayeth naught.

^ Sworn to and subscribed in my preserlt^e this Za wday of January, 2007.

NOTARY PUBLIC

T,a?i SLACK ..:;JC, STATE OFOHIO Y Cu[miml,4il L%fIRESf3RIL 9, 20-0 [Cite as State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283.1

THE STATE OF OHIO, APPELLEE, V. KETTERER, APPELLANT.

[Cite as State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283.] Criminal law - Aggravated murder - Death penalty upheld. (No. 2004-0485 - Submitted February 7, 2006 - Decided October 25, 2006.)

APPEAL from the Court of Common Pleas of Butler County, No. CR 2003-03-0309.

MOYER, C.J. {¶ 1} In the late afternoon on February 24, 2003, defendant-appellant, 53-year-old Donald Ketterer, beat and stabbed 85-year-old Lawrence Sanders to death in IIamilton, Ohio. Ketterer then stole money and other property and drove Sanders's car away. Ketterer pleaded guilty to burglary, aggravated burglary, aggravated robbery, grand theft of a motor vehicle, and aggravated murder and was sentenced to death.

{¶ 2} According to his confession, Ketterer went to Sanders's home on Shuler Avenue in Hamilton, Ohio on February 24, 2003, to borrow $200 so he could pay a court fine. Ketterer claimed that Sanders "swore up and down to

[him] that he did not have the money" and asked Ketterer to leave. Ketterer felt that Sanders "was being very disrespectful," and he hit Sanders in the head with a skillet three times. Ketterer remembered thinking, "[I]f I just knocked him out, he would know who did it, so I thought I should stab him," which Ketterer did. Ketterer further stated that after Sanders "quit moving," Ketterer took $60 to $70 out of Sanders's wallet, searched the house for more money, and found loose and rolled coins. Then he drove away in Sanders's 1995 Pontiac Grand Am.

{¶ 3} Mary Gabbard, a friend of Ketterer's, said that Ketterer was at her East Avenue residence on the evening of February 24, wearing yellow gloves that

EXHIBIT

^ 2- SUPREME COUR7' OF OHIO

appeared to liave blood on them. Wlien Gabbard asked about the blood, Ketterer said that he had been in a fight. According to Gabbard, latcx gloves that police found at her residence were similar to those that Ketterer had worn on February 24. A forensic scientist concluded that DNA extracted from blood on these gloves contained a mixture of DNA that belonged to Sanders and Ketterer. {¶ 4} Gabbard also reported that around 11:30 p.m. on February 24,

Ketterer again stopped by her residence. Both Gabbard and Ketterer used drugs, often together, and Gabbard had supplied drugs to Ketterer. At that time, Ketterer told Gabbard that "he had some stuff that he had stolen," including "crosses, rosaries, costume jewelry" and "a couple hundred dollars worth of change." Ketterer wanted "to trade [these items] for crack cocaine." Ketterer also explained that "he wanted to go back over there [to Shuler Avenue] because he had [by mistake] * * * gotten the woman's stuff and he wanted the man's stuff" The evening before, Gabbard had left her home and had bought cocaine for

Ketterer, using $40 that he had given her. When Gabbard woke up around 5:30 a.m. on February 25, Ketterer left her residence. In his confession, Ketterer admitted that at around 4:00 p.m. on Februaiy 25, he had returned to Sanders's house for an hour and a half and had stolen silverware and other items. {¶ 5} Around 7:00 p.m. on February 25, Hamilton police officer Christy Collins inipounded Sanders's abandoned 1995 Pontiac Grand Am, which had struck a garage near East Avenue, where Gabbard lived. After Officer Collins traced the car, she went to Sanders's home, but got no response. At about that same time, Lisa Lawson, a bartender, saw Ketterer at Cindy's Pub. When Ketterer got up to leave, he dropped a bag, and "stuff [was] laying all over the floor," including coins. Lawson helped Ketterer put the items into another bag, and Ketterer told her, "I've got to get out of here. I have heat on me." A cab driver then drove Ketterer over to East Avenue.

2 January Term, 2006

{¶ 6} Shortly after 7:00 p.m. that same evening, police officers seeking to interview Ketterer about an unrelated matter found him outside Gabbard's home and asked him to voluntarily come to the station. Ketterer was carrying a plastic bag, which he brought to the station. Around 8:30 p.m., police advised

Ketterer of his Miranda iights, which he waived. Ketterer consented in writing to a search of his person and the plastic bag he carried. Police found a large quantity of loose change and rolled coins in Ketterer's possession, as well as papers that mentioned Sanders.

{¶ 7} That evening, police went to Sanders's home and discovered his mutilated body inside. The contents of drawers had been dumped on the floor, and Sanders's pants pockets were inside out. The back of Sanders's wristwatch case was loose, and his watch had stopped at 5:18 or 5:20. A broken skillet was found in the kitchen. In the alley behind Sanders's house, police found silverware that Ketterer had dropped.

{¶ 8} Dr. James Swinehart, a pathologist, concluded after an autopsy that Sanders had died of "multiple traumatic injuries," including "a severe craniocerebral injury with extensive skull fractures," nine distinct "stab wounds with penetration * * * of the left lung," and °multiple bilateral rib fractures." In addition, "two forks, a knife, and a pair of scissors" had been stuck in Sanders's face. Dr. Swinehart also discovered multiple defensive wounds on Sanders's hands and arms,

{¶ 9} Around 12:30 a.m., on Febmary 26, after Sanders's body had been found, police retumed to the police station. Police again advised Ketterer of his

Miranda rights, which he waived. Ketterer initially denied recollection of Sanders's death. But during a later inteview that morning, Ketterer orally confessed and then signed a written confession. At 5:05 a.m., Ketterer signed another statement admitting that he killed Sanders. Charges and Verdict

3 SUPREME COUR'I' OF OFI1O

{T 101 The grand jury indicted Ketterer in Count One for the aggravated murder of Sanders in the course of an aggravated robbery. Count One included three death specifications: specification one, R.C. 2929.04(A)(3) (murder to escape detection or apprehension), specification two, R.C. 2929.04(A)(7) (murder during an aggravated robbery), and specification three, R.C. 2929.04(A)(7) (murder during an aggravated burglary). The grand jury also indicted Ketterer for aggravated robbery in Count Two, aggravated burglary in Count Three, grand theft of a niotor vehicle in Count Four, and burglary in Count Five. Count Five reflected Ketterer's return to the crime scene on February 25, the day after the murder. Ketterer waived a jury and pleaded guilty, as charged, before a three- judge panel. Following the state's presentation of evidence, the panel found Ketterer guilty as charged.

{¶ 11} After a penalty-phase hearing, the three-judge panel sentenced Ketterer to death for the aggravated murder of Sanders and to prison terms, as well as fines, for the other felonies.

{¶ 12} The case is now on direct appeal to our court, and Ketterer presents 15 propositions of law for our consideration. We find no merit in any of his propositions. Flence, we affirm the findings of guilt. We have independently weighed the aggravating circumstances against the mitigating factors and have considered the appropriateness of the dcath sentence. For the reasons that follow, we affirm the judgment of the trial court, including the death sentence. Jury Waiver and Guilty Plea (II) {¶ 13} In proposition II, Ketterer argues that he did not "knowingly, intelligently, and voluntarily" waive a jury trial and enter a guilty plea. Ketterer further argues that the trial court did not adequately inform him of his rights, particularly in view of his mental illness and medication.

{¶ 14) Contrary to Ketterer's claims, the record establishes that Ketterer consulted with his lawyers and was competent to be tried, plead guilty, make

4 January Term, 2006

decisions about his case, and communicate with his attorneys. Further, the record is clear that Ketterer understood what he was doing by waiving a jury trial and pleading guilty as charged to the indictment. The following transcript of the proceedings at the trial couit supports these conclusions: {¶ 151 "JUDGE ONEY: Mr Ketterer, I have in front of me where you have signed a jury waiver. (¶ 16) "THE DEFENDANT: Yes, ma'am. {¶ 171 "JUDGE ONEY: And have you consulted with your attomeys on this procedure? {¶ 18) "THE DEFENDANT: Yes, ma'am, I have. {¶ 19) "JUDGE ONEY: And you talked with them several times leading up to also talking with them last night and talking with them this morning; is that correct? {¶ 201 "THE DEFENDANT: That's correct. {¶ 211 "JUDGE ONEY: And *** did you receive advice from your attorneys in regard to the procedure? {¶ 22) "THE DEFENDANT: Yes, ma'am. {¶ 231 "JUDGE ONEY: And you understand that-what the function of the jury would be that you have a potential to go to a jury, and they would be making a decision as to guilt or innocence on the charges. Do you understand that? 11241 "THE DEFENDANT: Yes, ma'am. {¶ 25} "JUDGE ONEY: And then if they found [you] guilty on the Count One, the aggravated murder, then they would also be making a decision as to the proper sentence to impose. Do you understand that? {¶ 26) "THE DEFENDANT: Yes, ma'am." {¶ 27} "* * *

5 SUPREME COURT OF OHIO

{¶ 28} "JUDGE ONEY: And witli these discussions with your attorneys, are you satisfied with their advice?

{¶ 29} "THE DEFENDANT: Yes, ma'am. {¶ 30} "JUDGE ONEY: And are you satisfied with their preparation on their case on your behalt7 {¶ 31} "THE DEFENDANT: Yes, ma'am, I am. {¶ 32} "JUDGE ONEY: When you discussed with the attorneys, the pros and cons-did you discuss the pros and cons of going to a jury or going to a three-judge panel? {¶ 33) "THE DEFENDANT: Yes, we did. {¶ 34} "JUDGE ONEY: And did you discuss *** with your attorneys that if you waived the jury, that there is a three-judge panel, and the matter could be even tried to the three-judge panel. Do you understand that? 11351 "THE DEFENDANT: Yes, ma'am. {¶ 36) "JUDGE ONEY: Or a guilty plea could be entered? {¶ 371 "THE DEFENDANT: Yes, ma'am. {T 381 "JUDGE ONEY: And if a guilty plea was entered or if and there was a trial and the three-judge panel found that you were guilty of aggravated murder, there would be a second trial phase on the aggravating factors and mitigating circumstances, do you understand that? (¶ 39) "THE DEFENDANT: Yes, ma'am. {¶ 40) "JUDGE ONEY: And it is your intention then to *** continue with your jury waiver and go with a three judge panel? {¶ 41} "THE DEFENDANT: Yes, it is." {¶ 42} "* * *

{¶ 43} "JUDGE ONEY: Mr. Ketterer, can you read and write?

{¶ 44} "TI-IE DEFENDANT: Yes, ma'am. {¶ 45} "JIIDGE ONEY: I have here a jury waiver, did you read tliis?

6 January Tcrm, 2006

{¶ 46} "THE DEFENDANT: I just signed it about ten niinutes ago. {¶ 47} "JUDGE ONEY: Did you read it beforehand though? {¶ 481 "THE DEFENDANT: Yes, ma'am. (¶ 49) "JUDGE ONEY: And did you discuss this with your attorne)? {¶ 501 "THE DEFENDANT: Yes, ma'am. {¶ 511 "JUDGE ONEY: And did you understand that you are waiving the right to have this niatter go to trial by the jury that is upstairs? {¶ 52} "THE DEFENDANT: Yes, ma'am. {¶ 53} "JUDGE ONEY: Are you entering - doing this waiver voluntarily? Have any threats been made to you to get you to do this? {¶ 541 "THE DEFENDANT: No. {¶ 55) "JUDGE ONEY: I-Iave any promises been made to you to get you to do this? {¶ 56} "THE DEFENDANT: No, ma'am. {¶ 57) "JUDGE ONEY: Do you have any problems with the English language? Do you understand this? {¶ 58) "THE DEFENDANT: I understand it perfectly. {¶ 59) "JUDGE ONEY: Are you * * * knowingly and intelligently and voluntaiily waving your right to a jury trial? {¶ 601 "THE DEFENDANT: Yes, ma'am, I am." {T 61} Further, Ketterer personally acknowledged that he understood that the three-judge panel would decide the sentence if he waived a jury trial. {T 62} "JUDGE ONEY: You understand that if [this case] goes to a three-judge panel, not only will they be determining guilt, but they will also be determining the sentence that would be involved? {¶ 63} "THE DEFENDANT: Yes, ma'am, I do." {¶ 64} Later that afternoon, before accepting his guilty plea, the court conducted a further inquiiy of Ketterer to ensure he understood his jury-trial

7 SUPREME COURT OF OHIO

waiver, how the case would proceed before a tliree-judge panel, and the ramifications of a guilty plea.

{¶ 651 Jury waiver. Ketterer's complaint about the extent of the court's inquiry into his jury-trial waiver lacks merit. In State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464, paragraph one of the syllabus, we held: "There is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fidly apprised of the right to a jury trial." Further, "[t]he Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel." Id. at 26, 559 N.E.2d 464. Accord State v.

Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 53; State v. Baston (1999), 85 Ohio St.3d 418, 421, 709 N.E.2d 128; State v. Spivey (1998), 81 Ohio St.3d 405, 408-409, 692 N.E.2d 151.

(¶ 66) Moreover, in State v. Turner, 105 Ohio St.3d 331, 2005-Ohio- 1938, 826 N.E.2d 266, 1125, we held, "[A] written jury waiver is presumed to have been voluntary, knowing, and intelligent," citing United States v. Sammons (C.A.6, 1990), 918 F.2d 592, 597. Accord State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927,1[ 41. {¶ 67) In this case, Ketterer has presented no basis to rebut that presumption. The inquiry previously quoted reflects that Ketterer's decision to waive a jury was a knowing, intelligent, and voluntary decision. In addition, Dr. Bobbie Ilopes, a clinical psychologist, concluded on January 16, 2004, 11 days before the jury waiver, that Ketterer was competent to stand trial and make decisions about his case. On January 20, the trial court found Ketterer competent to stand tiial. {¶ 68) Contrary to Ketterer's claim, the trial court was not required to specifically advise Ketterer on the need for juror unanimity. We rejected similar claims in State v Bays (1999), 87 Ohio St.3d 15, 19-21, 716 N.E.2d 1126, citing

8 January Term, 2006

United States v. Martiri (C.A.6, 1983), 704 F.2d 267. In Bays, we noted that "a defendant need not have a complete or teclinical understanding of the jury trial right in order to knowingly and intelligently waive it." Id. at 20, 716 N.E.2d 1126. Nor is the trial court "required to inform the defendant of all the possible in-iplications of waiver." Id. Accord Sowell v. Bradshaw (C.A.6, 2004), 372 F.3d 821, 833-836; State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 24-25; Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 44-46 (accused need not be told of jury unanimity to convict and to impose sentence).

{¶ 69) Thus, the trial court need not explain a wide variety of legal concepts, such as reasonable doubt, to secure a valid jury waiver. As the United

States Supreme Court has noted, "the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances-even though the defendant may not know the specific detailed consequences of invoking it." (Emphasis sic.) United States v. Ruiz (2002), 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586.

{¶ 70} Moreover, "[s]ince Jells holds that no inquiry is required, the trial court's failure to make specific inquiries of the defendant cannot be error." State v. Filiaggi (1999), 86 Ohio St.3d 230, 238, 714 N.E.2d 867; Baston, 85 Ohio St.3d at 422, 709 N.E.2d 128 (colloquy on the standard of review on appeal not needed). Further, the court's reference to a jury's deciding "guilt or innocence" was not misleading, but reflected simply a shorthand explanation.

11171) Ketterer also challenges his juiy waiver on the grounds that the trial court did not adequately inquire into medication that he was taking.

However, we hold that the trial court did conduct an adequate inquiry into Ketterer's medication and determined that it did not affect Ketterer's understanding of the proceedings or his decision-making ability. The fact that a

9 SUPREME (:OURT OF 01110

defendant is taking antidepressant medication or presciibed psychotropic drugs

does not negate his competence to stand trial. See Fitzpatrick, 102 Ohio St.3d

321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 36-39; State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 38.

{¶ 72} Further, Dr. Hopes had found Ketterer competent in this case and noted at the time of the evaluation that Ketterer "was receiving psychotropic

medication, which may have been controlling many symptoms of mental illness, but he continued to exhibit residual symptoms." The trial court had found Ketterer competent, and the court could rely upon its own observations because Ketterer had appeared before the court on several occasions. Also, Ketterer's counsel never challenged their client's ability to understand the jury-waiver or guilty-plea process.

{¶ 73} The fact is that "nobody on the spot thought [defendant's] behavior raised any question as to his competence." (Emphasis sic.) State v. Cowans

(1999), 87 Ohio St.3d 68, 84, 717 N.E.2d 298. Cf. State v. Thornas, 97 Ohio

St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 39; State v. Vi-abel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 27-34. "[F]actual determinations

are best left to those who see and hear what goes on in the courtroom." Cowans, 87 Ohio St.3d at 84, 717 N.E.2d 298.

{¶ 74} Ketterer voluntarily signed his waiver, and his signed waiver is in the case file. "Pursuant to Jells, no more was required." Filiaggi, 86 Ohio St.3d at 238, 714 N.E.2d 867. Accord Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio- 3167, 810 N.E.2d 927, ¶ 43; State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio- 6624, 779 N.E.2d 1017, ¶ 26.

{¶75} Guilty plea. In challenging the voluntariness of his guilty plea, Ketterer again challenges the sufficiency of the trial court's inquiry into the medication he was taking. Again, we find no error. Ketterer also asserts deficiencies in his understanding of the legal process based on the pretrial

10 January Term, 2006

competency report. But that report was issued 11 days before Ketterer pleaded guilty. Thus, that report was issued before counsel had lengthy discussions with

Ketterer and before the trial court's inquiry on his jury waiver and guilty plea. {¶ 76} Here, the trial court fiilly complied with the requirements to accept a guilty plea. See State v. Tairner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 33-34; State v. Ballard (1981), 66 Ohio St.2d 473, 20 0.O.3d 397, 423 N.E.2d 115, paragraph one of the syllabus; Crim.R. 11(C)(2)(c). We hold that the inquiry was adequate. Cf. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio- 3167, 810 N.E.2d 927, ¶ 57 (aside from specific duties of the court delineated in Crim.R. 11(C), if counsel has infonned a defendant of the statutory and constitutional rights that a guilty plea would forgo, the court need not); State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 62-85. {¶ 77} In this case, the trial court conducted a tliorough inquiry in open court to ensure that Ketterer's guilty plea was made knowingly, intelligently, and voluntarily. The court informed Ketterer at length of the possible sentences that could be imposed on the aggravated murder charge as well as the other charges, that a separate hearing would be held to determine the penalty on the aggravated- murder charge, and that the three-judge panel would determine, after hearing evidence, what penalty to impose.

{¶ 78} Ketterer agreed that no threats or promises had been made to induce his plea. Further, Ketterer acknowledged that he understood that he was waiving his right to require the state to prove his guilt beyond a reasonable doubt, his right to confront witnesses, his right to subpoena witnesses, and his right to remain silent or to testify, as he chose. He further asked that the court accept his guilty plea to all charges and specifications.

{¶ 79} Ketterer acknowledged that he had discussed his jury waiver and guilty pleas with his attoi-neys and was satisfied with their advice and "with the efforts that they have made in representing" him. Further, when asked whether he

tt SUPREME COURT OF OHIO

had any questions about the plea or needed to talk with his lawyers more, Ketterer responded, "No, we talked it over last night for quite a bit and talked it over today quite a bit. And I wish to go on with it." Ketterer also signed written guilty pleas that fiilly acknowledged his rights. For the foregoing reasons, we reject proposition II.

Ineffective Assistance of Counsel-Guilty Plea (I)

{¶ 80} In proposition I, Ketterer contends that when defense counsel advise their client to plead guilty to a capital offense without first securing an agreement that a life sentence be imposed, they are per se ineffective. {¶ 81} Reversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. The United States Supreme Court has recognized that the "two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart (1985), 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203. Accord State v. Bird (1998), 81 Ohio St.3d 582, 585, 692 N.E.2d 1013. {¶ 82} Ketterer claims that counsel were ineffective because they advised him to plead guilty without attempting to negotiate a life sentence. But the record does not reflect whether Ketterer, through counsel, attempted to exchange a guilty plea for a life sentence. Further, nothing in the record supports Ketterer's claim that his counsel instructed Ketterer to plead guilty.

{¶ 83} In addition, the record contradicts Ketterer's claim that counsel "did not talk with their client" about proceeding with a guilty plea after the court ruled that a guilty plea before a panel precluded jury sentencing. In addition to the dialogue quoted earlier, the record contains the following additional dialogue:

12 January Term, 2006

{j[ 84} "[Defense counsel] MR. HOWARD: It's our intcntion, Judge, to present or enter our guilty plea to a three-judge panel, and we have discussed that witli Mr. Ketterer. We discussed that with hini yesterday afternoon and quite lengthy discussion at the jail, and we discussed it with him here again this moming. * * * [I]f he does waive the right to have a jury hear the trial phase, then he also waives that right to have the jury * * * hear the sentencing phase, and he is aware then that if he pleads to a three judge panel that the niitigation evidence will also be presented to the three judge panel ***."

{¶ 85} Second, even assuming that Ketterer's counsel had advised their client to plead guilty, a fact not established, that advice does not reflect ineffective assistance of counsel per se. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord Bird, 81 Ohio St.3d at 585, 692 N.E.2d 1013 (judicial scrutiny of counsel's tactical decisions, including recommending to the client a no-contest plea, must be highly deferential). {¶ 86} Counsel may have reasonably believed that a guilty plea could minimize the effect of gruesome facts and a brutal murder, especially before a three-judge panel. By pleading guilty before a three-judge panel, counsel obtained the benefit of substantial mitigation evidence, namely remorse and a plea of guilty. See, e.g., State v. Ashworth (1999), 85 Ohio St.3d 56, 72, 706 N.E.2d 1231 ("guilty pleas are traditionally accorded substantial weight in imposing a sentence"). Further, there was overwhelming evidence of Ketterer's guilt. Forensic evidence linked Ketterer to the crime, and he confessed, was found in possession of the victim's personal property, and admitted the crime to Gabbard. {¶ 87} Counsel's advice therefore reflects reasonable representation under Strickland. In Shaw v. Martin (C.A.4, 1984), 733 F.2d 304, 316, the Fourth

Circuit Court of Appeals held that counsel's recommendation of a guilty plea in a

13 SUPREME COURTOF OHIO

capital case "was the product of their sound deliberation and judgment that [the defendant's] prospects were better with the sentencing judge than with a jmy, especially considering the brutal and utterly sadistic facts of the case." See, also,

Reid v. True (C.A.4, 2003), 349 F.3d 788 (counsel's deficient performance not shown in guilty plea to capital offense); Carpenter v. State (Okla.Crim. 1996), 929 P.2d 988, 999 (counsel not ineffective when accused pleaded no contest in capital case).

{¶ 88} In Wilson v. State (1983), 99 Nev. 362, 372, 664 P.2d 328, the Nevada Supreme Court noted that counsel "encouraged [their clients] to plead guilty [to capital murder] so that they would be sentenced by a three judge panel rather than be exposed to a jury." The Nevada court held that such "advice and recommendation * * * are largely tactical decisions. We *** will not second guess such matters when they relate to trial strategy."

{¶ 89} Third, the record does not demonstrate that Ketterer pleaded guilty based on any deficient advice from counsel. In ineffective-assistance claims in guilty-plea cases, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Lockhart, 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d 203. Cf. Bird, 81 Ohio St.3d at 585, 692 N.E.2d 1013 (no prejudice shown by guilty plea); State v. Xie (1992), 62 Ohio St.3d 521, 525, 584 N.E.2d 715 (defendant failed to prove he would not have pleaded guilty if attorney's advice had been correct); State v. Brooks (Iowa 1996), 555 N.W.2d 446, 448 ("where a factual basis exists for the plea, counsel usually will not be found ineffective for allowing the defendant to plead guilty").

{¶ 90} Moreover, as the Supreme Court recognized, "[i]n many guilty plea cases, the `prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial." Lockhart, 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d 203. In view of the

14 January Term, 2006

compelling evidence of Ketterer's guilt, any rational jury or panel of three judges would have convicted him whatever his plea. Thus, Ketterer has failed to

establisli "a reasonable probability that, were it not for counsel's en•ors, the result

of the trial would have been different." Brarlley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Accordingly, we reject proposition I.

Sufficiency of Evidence (III) {¶ 91) In proposition III, Ketterer argues that the evidence was insufficient to prove his guilt as to the R.C. 2929.04(A)(3) (murder to escape detection, apprehension, or punishment) death-penalty specification. Hence, he argues that because the state did not prove the (A)(3) death-penalty specification, the three-judge panel considered an invalid aggravating circumstance, a flaw that renders his death sentence invalid.

{192} Under Crim.R. II(B)(1), "[t]he plea of guilty is a complete

admission of the defendant's guilt." Accord State v. Wilson (1979), 58 Ohio St.2d 52, 12 0.O.3d 51, 388 N.E.2d 745, paragraph one of the syllabus ("a counseled plea of guilty is an admission of factual guilt which removes issues of factual guilt from the case * * * ").

{¶ 93) Nonetheless, when the offense charged is a capital offense, R.C. 2945.06 and Crim.R. 11(C)(3) require the state to prove guilt of an aggravated- murder charge with death specifications even when an accused pleads guilty. See

State v. Green (1998), 81 Ohio St.3d 100, 689 N.E.2d 556, syllabus. Hence, in Ohio, "[c]hallenges to the sufficiency of the evidence are therefore expressly permitted on aggravated murder charges" even when the accused pleads guilty.

Carpenter v. Mohr (C.A.6, 1998), 163 F.3d 938, 946, reversed on other grounds, Edwards v. Carpenter (2000), 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518. Accord State v. Taylor (1972), 30 Ohio App.2d 252, 258-259, 59 0.O.2d 398, 285 N.E.2d 89 (sufficiency challenges permitted in guilty-plea aggravated-murder

15 SUPREME COURT OF OHIO

cases); State v. Wright (Apr. 30, 2001), Allen App. No. 1-2000-71, 2001 WL 454670, *2, following Taylor.

(194) We hold that the evidence was sufficient to establish Ketterer's guilt of the R.C. 2929.04(A)(3) specification. In reviewing a record for sufficiency, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259-260, 574 N.E.2d 492, paragraph two of the syllabus. We will not disturb a verdict on appeal on sufficiency grounds unless "reasonable minds could not reach the conclusion reached by the trier-of-fact." State v. Dennis (1997), 79 Ohio St.3d 421, 430, 683 N.E.2d 1096.

{¶ 95} In this case, the trial court had ample evidence from which to find that Ketterer had struck Sanders, thereby committing a felonious assault, and that Ketterer then had decided to kill Sanders so that Sanders did not live to identify

Ketterer as his assailant. In his pretrial confession, Ketterer recalled, "I remember then when I hit him with the skillet I was thinking if I just knocked him out, he would know who did it, so I thought I should stab him. And I don't think he moved anymore after I stabbed him." {¶ 96} Moreover, Ketterer admitted that he had assaulted Sanders because he felt that Sanders "was being very disrespectful" to him. Then Ketterer repeatedly used considerable force to ensure that Sanders did not live to identify him. Dr. Swinehart, the pathologist, noted that Sanders had a "cranial cerebral injury of significant nature" with numerous lacerations and contusions, skull fractures at the top and base of the skull, and extensive brain hemorrhages under the skull fractures. Sanders also suffered from "nine distinct stab wounds," and in addition, "two forks, a knife, and a pair of scissors" were stuck in his face. Sanders also had multiple rib fractures.

16 January Term, 2006

{¶ 97} Further, Ketterer's assault on Sanders was not a single act. In fact, the multiple blows witli the skillet, nine distinct stab wounds to the chest, four distinct objects stuck in Sanders's face, and multiple rib fractures establish that

Ketterer systeniatically and repeatedly assaulted Sanders. {¶ 98} In view of Ketterer's admission that he killed Sanders in order to silence him as a witness, as well as the evidence of Sanders's injuries, we hold the evidence sufficient to prove the R.C. 2929.04(A)(3) violation. In other cases, we have found similar evidence sufficient to prove a R.C. 2929.04(A)(3) violation.

See, e.g., State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 94 (jury could infer defendant killed victim "to eliminate the only witness against him"); State v. Smith (1997), 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (defendants decided to kill the robbery victims because they "didn't want [the victims] to tell on them"); State v. Cooey (1989), 46 Ohio St.3d 20, 24, 544 N.E.2d 895 (victim discovered name of accomplice during crime and was killed for that reason).

{¶ 99} Because the evidence proved the R.C. 2929.04(A)(3) death-penalty specification, we reject Ketterer's claim that the death penalty rests upon an invalid aggravating circumstance. We further hold that the (A)(3) specification represented a separate and distinct aggravating circumstance from the (A)(7) specifications alleging murder during a burglary and robbery. See State v. Noling,

98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 81. Ineffective Assistance in General (IV) {¶ 100} In proposition IV, Ketterer claims that his attorneys provided ineffective assistance in maintaining the attorney-client relationship and in failing to secure the suppression of evidence, obtain DNA testing, object to death specifications, and assist effectively in presenting mitigation evidence. We will discuss these ineffective-assistance claims separately.

11101) Essential attorney-client relationship. Ketterer claims that his attorneys were ineffective "for failing to establish the essential attorney-client

17 SUPREME C,OURT OF OHIO

relationship" because his lawyers failed to earn his trust or keep in close contact. However, the "Sixth Amendnient does not guarantee `rapport' or a`meaningful relationslrip' between client and counsel." State v. Henness (1997), 79 Ohio St.3d 53, 65, 679 N.E.2d 686, quoting Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610. Instead, "[t]here is only a right to professionally competent, effective representation." State v. McNeill (1998), 83 Ohio St.3d 438, 452, 700 N.E.2d 596. In this case, the record does not establish deficient representation or prejudice. {¶ 102} Ketterer, a difficult client, fixated on pleading not guilty by reason of insanity ("NGRI") and complained that his lawyers did not spend time with him or follow his advice on how to proceed. According to Dr. Bobbie

Hopes, Ketterer "tended to jump to incorrect conclusions and to make poor decisions, due to impaired judgment and reasoning ability." Ketterer also solicited legal advice from fellow prisoners, conduct that caused problems.

According to Dr. Hopes, Ketterer also misinterpreted efforts by his lawyers to represent him. We find, however, no credible evidence that counsel spent insufficient time with their client, failed to expend appropiiate effort to communicate with or advise their client, or provided deficient representation. In fact, at several points during Ketterer's jury waiver and guilty plea, Ketterer asserted that he had talked with his lawyers at length and was satisfied with his attorneys and with their efforts to assist him. Further, Ketterer has not demonstrated that "a reasonable probability [exists] that, were it not for counsel's errors, the result of the trial would have been different." Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. We reject Ketterer's claims that the trial court should have replaced his counsel, as we discuss later in connection with proposition VII.

{¶ 103} Ineflective assistance relating to suppression motion. We also reject Ketterer's contention that his trial counsel provided ineffective

18 January Term, 2006

representation when counsel argued that Ketterer's pretrial statements to police should have been suppressed. {¶ 104} First, Ketterer's guilty plea waived any complaint as to claims of constitutional violations not related to the entry of the guilty plea. See

Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78; State v. Spates (1992), 64 Ohio St.3d 269, 595 N.E.2d 351, paragraph two of the syllabus (guilty plea waives dcfendant's right to challenge deprivation of counsel at preliminary heaiing stage); State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658, paragraph two of the syllabus (a plea of guilty °effectively waives all appealable errors" at trial unrelated to the entry of the plea).

{¶ 105} Second, Ketterer has failed to show deficient performance from the lack of testimony from a substance-abuse expert at the suppression hearing.

"[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Further, Ketterer's claim that he was prejudiced by the lack of such testimony is entirely speculative. Ketterer has no proffer in the record to support that claim. See Clark v. Mitchell (C.A.6, 2005), 425 F.3d 270, 283 (neither deficient performance nor prejudice established although counsel did not secure services of neuropsychologist or pharmacology expert at pretrial suppression hearing).

{¶ 106} Third, even if counsel had used different tactics in pursuing the suppression motion, such as objecting to hearsay or pointing out that Ketterer had lied in his pretrial statements, no evidence exists that a different result would have occurred. Thus, Ketterer has not established prejudice, which Strickland requires.

{I[ 107} DNA testing. Counsel's decision not to more vigorously pursue DNA testing of hairs allegedly found in the victim's hands also reflected a reasoned tactical judgment and reasonable professional judgment. Ketterer confessed to the crime and pleaded guilty. Moreover, Ketterer cannot establish

19 SUPREME COURT' OF OHIO

prejudice on this claim, as counsel concedes, because the rccord does not reflect the DNA results. Cf. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823

N.E.2d 836, ¶ 98-99; State v. Hartman (2001), 93 Ohio St.3d 274, 298-299, 754 N.E.2d 1150.

{¶ 108} Objections to specifcations. Ketterer claims that his counsel were ineffective for failing to object to the death-penalty specifications. Here,

Ketterer recasts meritless arguments that we have rejected elsewhere. As we discuss in connection with proposition VI, murder during a robbery and murder during a burglary are not duplicative death specifications. Further, the evidence proved Ketterer's guilt of the R.C. 2929.04(A)(3) death-penalty specification, as we discussed in connection with proposition III. Thus, Ketterer has shown neither deficient performance nor prejudice pursuant to Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶ 109} Ineffective assistance in mitigation. Ketterer claims that his counsel provided ineffective representation in the mitigation phase by failing to present testimony from a substance-abuse expert, by allowing their client to admit he deserved the death penalty, by failing to argue the contributory roles of others in Sanders's death, and by not objecting to prosecutorial misconduct. However, we reject Ketterer's claims because Ketterer establishes neither deficient performance nor prejudice.

{¶ 110} First, we find no evidence in the record as to what a substance- abuse expeit would have said in the penalty phase. Thus, Ketterer has not demonstrated prejudice from missing such testimony. Further, Ketterer had available two psychologists who were competent to testify about Ketterer's extensive drug-abuse problems and did so.

{¶ 1111 Second, Ketterer claims that counsel were ineffective because Ketterer, in reading his written unswom statement, said, "I know I should be put to death." But the record does not show that counsel coached or agreed to what

20 January Tenn,2006

Ketterer said. Moreover, Ketterer's personal and genuine remorse, as well as his honest recognition of the severity of his own crimes, may reflect an astute tactical move by counsel before a three-judge panel. "Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Strickland, 466 U.S. at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674. {¶ 112} Third, Ketterer claims that counsel should have presented evidence and argument conceming "Butler County's and Donald Williams's contributory roles in events leading to the victim's death." According to evidence at the suppression hearing, Donald Williams was a drug dealer, the owner of pren-iises where Gabbard stayed, and an alleged police informant. Nonetheless, defense counsel's decision not to attempt to blame others for crimes that Ketterer confessed to committing alone clearly fell "within the wide range of reasonable professional assistance." Id. at 689, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, we find no basis to believe that such an approach would have produced different results.

{¶ 113} Fourth, we reject Ketterer's claim that counsel failed to make appropriate objections. As we discuss in connection with propositions VII and IX, these claims have no merit.

{¶ 114} Finally, we reject Ketterer's claim that the "cumulative effect of defense counsel's errors establishes ineffective assistance." Ketterer's counsel provided competent advice and representation. Moreover, compelling evidence of guilt left counsel no reasonable opportunity to contest guilt, other than by a motion to suppress, wliich counsel filed and vigorously pursued. As to mitigation, we find no particular deficiencies in counsel's performance. In sum, counsel did the best they could with what they had. Cf. State v. Ballew (1996), 76 Ohio St.3d 244, 256, 667 N.E.2d 369. Ketterer has not established either deficient performance or prejudice, both of which Strickland requires in order to

21 SUPREME COUR'f' OF OHIO

demonstrate ineffective assistance of counsel. For the foregoing reasons, we ovefrule proposition IV.

Suppression Issues (V, XII)

{¶ 115} In proposition V, Ketterer argues that the trial court erred "by denying defense counsel's pretrial niotion to suppress Ketterer's involuntary and coerced statements to the police." In proposition XII, Ketterer argues that the

police failed to honor Ketterer's rights by not clarifying his comment about counsel before continuing to question him.

{¶ 116} At the outset, we reject propositions V and XII because Ketterer's guilty plea waived his right to contest these issues on appeal. "[A]

defendant who * * * voluntarily, knowingly, and intelligently enters a guilty plea

with the assistance of counsel `may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry

of the guilty plea.' " Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810

N.E.2d 927, ¶ 78, quoting Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235. In Fitzpatrick, we applied this principle to preclude challenges to rulings on various pretrial motions. 102 Ohio St.3d 321, 2004-

Ohio-3167, 810 N.E.2d 927, ¶ 79. Accord Spates, 64 Ohio St.3d 269, 595 N.E.2d 351, paragrapli two of the syllabus (guilty plea waives defendant's right to

challenge deprivation of counsel at preliminary-hearing stage); Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658, paragraph two of the syllabus (a plea of guilty "effectively waives all appealable errors" at trial unrelated to the entry of the plea).

Duplicative Counts and Circumstances (VI) {¶ 117} In proposition VI, Ketterer argues that aggravated robbery (Count Two) and aggravated burglary (Count Three), as well as the death specifications charging aggravated murder in the course of aggravated robbery

(specification two) and aggravated burglary (specification three) are duplicative

22 January Terni, 2006

counts and specifications. Thus, Ketterer argues that these offenses and specifications reflect an indivisible course of conduct and are allied offenses of

similar iniport pursuant to R.C. 2941.25(A) (multiple counts); See, e.g., State v. Mitchell (1983), 6 Ohio St.3d 416, 417-418, 6 OBR 463, 453 N.E.2d 593.

111181 However, we have consistently held that "[a]ggravated burglary and aggravated robbery are separate offenses and constitute separate aggravating circumstances because they do not arise from the same act." State v. Williams (1996), 74 Ohio St.3d 569, 580, 660 N.E.2d 724. See, also, State v. Fears (1999),

86 Ohio St.3d 329, 344, 715 N.E.2d 136; State v. Reynolds (1998), 80 Ohio St.3d 670, 681, 687 N.E.2d 1358; State v. Muiphy (1992), 65 Ohio St.3d 554, 577-578,

605 N.E.2d 884; State v. Barnes (1986), 25 Ohio St.3d 203, 207, 25 OBR 266, 495 N.E.2d 922; State v. Frazier (1979), 58 Ohio St.2d 253, 256, 12 0.O.3d 263, 389 N.E.2d 1118.

{¶ 119} As we recently held in State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 68, "[t]he aggravated-burglary and aggravated-robbery specifications were also not subject to merger, since they were committed with separate animus. The burglaiy was complete as soon as [the defendant] entered the apartment by deception with the intent to commit a theft offense. [The defendant] then attempted to rob [the victims]. * * * Thus, the aggravated burglary and aggravated robbery were separate offenses and constituted separate aggravating circumstances because they did not arise from the same act." Accordingly, we reject proposition VI.

Miscellaneous Trial Issues (VII)

{¶ 120} In proposition VII, Ketterer cites various constitutional provisions and raises eight separate challenges to his conviction and death sentence. However, we reject each of these challenges.

{¶ 121} Separate penalty-phase ju?y. Ketterer first argues that the trial court denied his constitutional right to have a jury determine the penalty to be

23 SUPREME COURT OF OIilO

imposed. See, e.g., Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, interpreting Apprendi v. Netiv Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, which reiterates a defendant's right to have a jury find the facts relevant to sentencing.

11122) However, we reject Ketterer's argument because Ketterer knowingly, intelligently, and voluntarily waived his right to a jury trial. Later, he knowingly, intelligently, and voluntarily pleaded guilty as charged. On both occasions, Ketterer acknowledged that he was waiving any right to have a jury decide what penalty to impose for the aggravated murder. Having freely relinquished his right, he cannot now argue that the trial court denied that right. "When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees." Ruiz, 536 U.S. at 628, 122 S.Ct. 2450, 153 L.Ed.2d 586, citing Boykin v. Alabama (1969), 395 U.S. 238,

243, 89 S.Ct. 1709, 23 L.Ed.2d 274. Accord United States v. Bradley (C.A.6, 2005), 400 F.3d 459, 463 (a plea agreement "most pertinently [waives] the right to a trial by jury").

{¶ 123) Further, the applicable statute, R.C. 2945.06, as well as Crim.R. 11(C)(3), contains no provisions permitting an accused charged with aggravated murder to waive a jury, request that three judges determine guilt upon a plea of guilty, and then liave a jury decide the penalty. Instead, R.C. 2945.06 directs, "If the accused pleads guilty of aggravated murder, a court conzpos•ed of three jzedges shall examine the witnesses * * * [and determine guilt] and pronounce sentence accordingly." (Emphasis added.)

{¶ 124) Moreover, in State ex rel. Mason v. Griffan, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644, we issued a writ of prohibition against a trial judge who had created "a hybrid procedure-a jury sentencing hearing to make certain findings upon which [the trial judge] would base his sentencing decision." Id. at ¶ 17. We held that by creating a nonstatutory procedure to convene a jury,

24 January Term,2006

the trial court "proceeded in a manner in which he patently and unambiguously lacked jurisdiction to act." ld. For the foregoing rcasons, we reject Ketterer's complaint about the failure of the trial court to convene a sentencing jury.

{¶ 125} Evidence at plea hearing. Ketterer asserts that in view of his guilty plea, the trial court erred to his prejudice in admitting the following at the plea hearing: (a) evidence that a knife, two forks, and a scissors had been stuck in

Sanders's face, (b) blood and DNA evidence, and (c) evidence of other acts committed by Ketterer reflected in his pretrial confession.

{¶ 126} However, as we noted earlier, when a defendant pleads guilty to aggravated murder in a capital case, a three-judge panel must receive evidence in order to make a Crim.R. 11 determination as to the guilt of the defendant. Green, 81 Ohio St.3d 100, 689 N.E.2d 556, syllabus. Moreover, "[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court."

State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.

{¶ 127} Here the trial court did not abuse its discretion in admitting, over objection, evidence that a knife, two forks, and a scissors had been stuck in Sanders's face. Evidence of the victim's wounds was relevant to establish

Ketterer's intent to kill, an essential element of the offense. Also, the state was required to prove the facts and circumstances of the offenses, including the victim's injuries. Further, the trial panel was required to examine the nature and circumstances of the aggravated murder to deter-mine whether any mitigating facts exist. See State v. Wogenstahl (1996), 75 Ohio St.3d 344, 354, 662 N.E.2d 311 ("the court is required to review this factor"); R.C 2929.04(B).

{¶ 128} Nor did the trial court abuse its discretion in admitting evidence of blood and DNA analysis that linked Ketterer to the killing of Sanders. The state was required to establisli Ketterer's identity as the killer, and the blood and DNA evidence helped to prove that fact. Evid. R. 401.

25 SUPREME COURT OF OHIO

{¶ 129} Ketterer also complains that the state, over objection, introduced improper evidence of other acts that Ketterer briefly mentioned in his second pretrial confession to police. But the statement in question contained Ketterer's admission that he had killed Sanders. Moreover, the trial court specifically noted, "We will admit the exhibit and we will not consider anything that is irrelevant to the proceedings and consider it as [redacted]." Thus, no prejudice occurred. A three-judge panel "is presumed to consider only relevant, competent and admissible evidence in its deliberations." State v. Davis ( 1992), 63 Ohio St.3d 44, 48, 584 N.E.2d 1192; State v. Post ( 1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754.

{¶ 130} Finally, Ketterer cannot realistically argue that this evidence prejudiced his plea hearing, for he pleaded guilty. See Wilson, 58 Ohio St.2d 52, 12 0.O.3d 51, 388 N.E.2d 745, paragraph one of the syllabus ("counseled plea of guilty is an admission of factual guilt which removes issues of factual guilt from the case").

{¶ 131} Evidence at penalty hearing. Ketterer also asserts that the trial court erred in permitting the state to reintroduce at the penalty phase all of the trial-phase evidence. Ketterer claims this evidence was inadmissible because it did not relate to the charged aggravating circumstances. However, counsel did not object and thereby waived all but plain error. State v. Williams (1977), 51 Ohio St.2d 112, 5 0.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus; Crim.R. 52(B).

{¶ 132} No error, plain or otherwise, occurred. A capital penalty-phase hearing is not limited to evidence that pertains only to the aggravating circumstances. See State v. Wogenstahl, 75 Ohio St.3d at 352-354, 662 N.E.2d 311; State v. Guinns (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, syllabus.

Further, "[a] trial court may properly allow repetition of much or all that occuiTed in the guilt phase pursuant to R.C. 2929.03(D)(1)." State v. Vrabel, 99 Ohio St.3d

26 January'fem, 2006

184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 73. Accord State v. DePetiv (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542 (Revised Code "appears to permit repetition of much or all that occurred during the guilt stage").

{¶ 133} Finally, Ketterer has not established prejudice. A panel ofjudges is presumed to "consider only relevant, competent and admissible evidence in its deliberations." Davis, 63 Ohio St.3d at 48, 584 N.E.2d 1192; Post, 32 Ohio St3d at 384, 513 N.E.2d 754. Accordingly, we reject Ketterer's complaints.

{¶ 134} Gra esome photo.s. Ketterer argues the trial court erred by admitting gruesome photographs that prejudiced both the trial and penalty phases. Ketterer's arguments lack merit.

{¶ 135} Guilt phase. In view of Ketterer's guilty plea, the admission of gruesome crime-scene or autopsy photographs could not have affected the guilty verdict. Also, Ketterer's guilty plea waived all appealable errors at trial unrelated to the entry of the plea. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658, paragraph two of syllabus; Crim.R. 11(B)(1).

{¶ 136} Penalty phase. Ketterer did not object to the reintroduction of the crime scene or autopsy photographs at the penalty phase, and thus waived all but plain error. Williams, 51 Ohio St.2d 112, 5 0.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus; Crim.R. 52(B).

{T 137} Here, the trial court did not create plain error by readmitting the photographs in the penalty phase. The crime-scene photographs as well as the photographs taken of Sanders's body on a gurney are not repetitive or cumulative and portrayed the nature and circumstances of the crime. Cf. State v. Issa (2001),

93 Ohio St.3d 49, 64-65, 752 N.E.2d 904; State v. Tibbetts (2001), 92 Ohio St.3d 146, 155-157, 749 N.E.2d 226; State v. Biros (1997), 78 Ohio St.3d 426, 443-446, 678 N.E.2d 891. Finally, the panel is presumed to "consider only relevant, competent and admissible evidence in its deliberations." Davis, 63 Ohio St.3d at

27 SUPREME COURT OF OHIO

48, 584 N.E.2d 1192. Accord State v. Fitzpatrick, 102 Ohio St.3d 321, 2004- Ohio-3167, 810 N.E.2d 927,1166.

{¶ 138} Hearing on counsel. In proposition VII, Ketterer further argues that the "trial court erred by failing to hold a liearing when Ketterer announced in court that he wanted to `fire' his lead counsel." Ketterer relies upon State v. Deal (1969), 17 Ohio St.2d 17, 46 0.O.2d 154, 244 N.E.2d 742, syllabus, wherein this court held that when "an indigent accused questions the effectiveness and adequacy of assigned counsel, * * * it is the duty of the trial judge to inquire into the complaint and make such inquiry a pait of the record." See, also, State v. King (1995), 104 Ohio App.3d 434, 437, 662 N.E.2d 389 ("inquiry may be brief and minimal, but it must be made"); State v. Prater (1990), 71 Ohio App.3d 78, 83, 593 N.E.2d 44 (on particular facts, "the trial court breached its duty to inquire").

{¶ 139} However, the record of the December 9, 2003 hearing, when this issue arose, shows that the trial court knew about the conflict between client and counsel over the NGRI plea, and further inquiry was unnecessary.

{¶ 140} At the December 9, 2003 hearing, Ketterer complained that his attorney, J. Gregory Howard, had disregarded Ketterer's desire to enter an NGRI plea. Ketterer then stated, "I wish, for the record, to change my plea today to what I originally wanted it to be, not guilty by reason of insanity." Ketterer also claimed that his lawyers had not spent enough time with him and that his bond had not been reduced.

{¶ 141} The ttial court advised Ketterer that he had the best attorney in the county for the case and that clients do not always like their attorneys because they tell them what the clients do not want to hear. Ketterer responded by discussing the medication he had taken at the time of the crime and by saying that he had known the victim, Sanders, since he was nine years old and did not

28 January Term, 2006

remember killing hini. At that point, the trial court advised Ketterer not to talk fmthcr about his case, bid to discuss these issues with his attorney.

{¶ 142} Defense counsel then advised the court that counsel had reviewed medical records from VA facilities throughout the country where

Ketterer has been treated. Counsel assured the court, "Based upon our investigation in the case as well as other things, it [NGRI] is not a viable option at this point in time. * * * I'm not going to file it just to be filing it if I don't have a reason to back it up." Ketterer then declared to Howard, "You're fired." But the context reflects that the court and counsel did not question Ketterer further at the time because of concern about Ketterer's tendency to discuss the facts of his crimes on the record.

{¶ 143} At a further hearing on January 5, 2004, the trial court, respecting Ketterer's pro se request, ordered a competency evaluation and a report on an NGRI plea. The court also rejected Ketterer's request that his counsel,

Howard, be fired. By tlien, Ketterer had changed his mind and told the court: "I would like to personally apologize to Mr. Howard for saying what I said last week or whatever that was, about firing him." Ketterer was satisfied because his NGRI plea was being explored.

{¶ 144} At the plea hearings, Ketterer stated that he was satisfied with his attorneys and that he had had numerous discussions with counsel. Then Ketterer acknowledged that certain pro se filings in the court of appeals were a mistake. {¶ 145} Finally, because the differences between Ketterer and his counsel involved whether to enter an insanity plea, no basis existed to find a conflict between counsel and client. The trial court had approved the appointment of Dr.

Jeffrey Smalldon, a psychologist, to assist Ketterer's defense. Thus, counsel's tactical decision not to pursue an NGRI defense was an informed decision, and no such plea was pursued at trial. "Decisions about `the viability of certain defenses' are 'within the exclusive province of defense counsel to make after consultation

29 SUPREME COURT OF OHIO

with his client.' " State v. Murphy (2001), 91 Ohio St.3d 516, 524, 747 N.E.2d 765, quoting Lewis v. Alexander (C.A.6, 1993), 11 F.3d 1349, 1354. {¶ 146} In view of Ketterer's withdrawal of his request to fire Howard, we hold that no prejudicial error resulted from the trial court's decision not to further inquire into the relationship between Ketterer and his counsel in December 2003.

{¶ 147} Failtrre to provide new counsel. Ketterer also argues that the "trial court eired when it denied Ketterer's request to remove appointed lead defense counsel and replace him with new counsel." However, we reject Ketterer's complaint for the following reasons.

{¶ 148} In State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph four of the syllabus, we held: "To disclrarge a court-appointed attorney, the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel." Accord State v. Henness, 79 Ohio St.3d at 65, 679 N.E.2d 686. Moreover, °'[a]n indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate 'good cause' to warrant substitution of counsel.' " Cowans, 87 Ohio St.3d at 72, 717 N.E.2d 298, quoting United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130.

{J[ 149} Furthcr, we review the trial court's decision as to replacement of counsel "`under an abuse-of-discretion standard.' " Murphy, 91 Ohio St.3d at 523, 747 N.E.2d 765, quoting Cowans, 87 Ohio St.3d at 73, 717 N.E.2d 298. If the complaint is unreasonable, the trial court may "require the trial to proceed with assigned counsel participating." Deal, 17 Ohio St.2d 17, 46 0.O.2d 154, 244 N.E.2d 742, syllabus. Accord Murphy, 91 Ohio St.3d at 523, 747 N.E.2d 765. "Disagreement[s] between the attomey and client over trial tactics or approach also do not warrant a substitution of counsel." State v. Evans, 153 Oliio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 32.

30 January Temi, 2006

{¶ 150} In this case, Ketterer's priniary complaint, that his counsel failed to pursue an NGRI plea, was unreasonable because Ketterer offers no evidence that an NGRI plea was credible. Moreover, the testimony of Dr. Hopes and Dr. Smalldon during the mitigation phase, as well as Dr. Hopes's competency report, does not reveal any basis for an NGRI plea. As we held in Cowans, " `"A lawyer has a duty to give the accused an honest appraisal of his case. * * * Counsel has a duty to be candid; hc has no duty to be optimistic when the facts do not warrant optimism." ' Brown v. United States (C.A.D.C.1959), 264 F.2d 363, 369 (en banc), quoted in McKee v. Harris (C.A.2, 1981), 649 F.2d 927, 932. "`If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice." '" Cowans, 87 Ohio St.3d at 73, 717 N.E.2d

298, quoting McKee, 649 F.2d at 932, quoting McKee v. Harris (S.D.N.Y. 1980), 485 F.Supp. 866, 869.

{¶ 151} Ketterer also argues that a total breakdown in communication existed between himself and counsel. To make this claim, Ketterer cites his letters of December 4, 2003, December 26, 2003, and January 13, 2004.

However, we find no support in the record for this claim. While the letters reflect Ketterer's obsession with an NGRI plea, they do not reflect a total breakdown in communications.

111521 By January 5, 2004, Ketterer had changed his mind about Howard. At the January 5 hearing, Ketterer apologized for attenipting to fire counsel and offered no further complaints. Ketterer later stated that he had talked at length with his attonieys and was satisfied with their efforts.

{¶ 153} Therefore, we hold that any lack of communication between counsel and Ketterer was temporary, and no complete breakdown in comntunications occurred. See Cowans, 87 Ohio St.3d at 73, 717 N.E.2d 298 (trial court did not abuse its discretion in rejecting substitution of counsel when any breakdown in communications was temporary); State v. Ahmed, 103 Ohio

31 SUPREME COURT OF 0I110

St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 35 ("thc record reflects niany instances where appellant continued to confer with counsel throughout the proceedings, thus belying his claim that there was a total breakdown in the attorney-client relationship"). For the foregoing reasons, we reject Ketterer's claim of error for failing to replace counsel. {¶ 154) Release afgrand jury transcripts. In proposition VII, Ketterer also argues that the trial court erred when it refused to disclose a grand-jury transcript relating to a criminal case against a prosecution witness, Donald Williams, whom the grand jury declined to indict after Williams assisted law enforcement in this case. Defense counsel wanted the transcript in an effort to impeach Williams.

{¶ 1551 However, Ketterer pleaded guilty as charged and thereby waived any basis to complain about the pretrial refusal to release a grand-jury transcript. See Spates, 64 Ohio St.3d 269, 595 N.E.2d 351, paragraphs one and two of the syllabus.

{¶ 156) Record of proceedings. In proposition VII, Ketterer refers to seven unrecorded side-bar conveisations and argues prejudicial error because the "trial court failed to keep a complete record of all proceedings." {¶ 157) Crim.R. 22 specifies that for serious offenses, "all proceedings shall be recorded." Moreover, R.C. 2929.03(G)(1) and (2) and 2929.05 mandate a complete record in capital cases. State ex reL Spirko v. Judges of the Court of Appeals, Third Appellate Dist. (1986), 27 Ohio St.3d 13, 18, 27 OBR 432, 501 N.E.2d 625. However, we have recognized that this foregoing requirement "does not mean that the trial record must be perfect for purposes of appellate review."

State v. Palmer (1997), 80 Ohio St.3d 543, 687 N.E.2d 685, syllabus. Accord State v. Spirko (1991), 59 Ohio St.3d 1, 15-16, 570 N.E.2d 229.

{¶ 1581 In this case, the record is adequate for appellate review. Five of the conferences occurred during the pretrial suppression hearing, and Ketterer's

32 January Term, 2006

guilty plea waived any issue about that suppression hearing. The sixth occurred during juror excusals. Ketterer's jury waiver and guilty plea waived any issue as to that conference. See Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 79, fn.1. The last conference that Ketterer cites appears from context to concern a five-minute recess.

{¶ 159} In any event, counsel never requested that the unrecorded bench conferences be recorded. Nor has Ketterer attempted to reconstruct these conferences or to establish their importance or that material prejudice resulted. Palmer, 80 Ohio St.3d at 554, 687 N.E.2d 685. We have repeatedly refused to reverse convictions or sentences on the basis of unrecorded conferences when a defendant has not taken these steps. Id. Accord State v. Leonard, 104 Ohio St.3d

54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 182-184; State v. Nields (2001), 93 Ohio St.3d 6, 27, 752 N.E.2d 859; State v. Goodwin (1999), 84 Ohio St.3d 331, 340, 703 N.E.2d 1251.

Proportionality F.vidence (VIII) {¶ 160} In proposition VIII, Ketterer claims that his right to a fair sentencing hearing was compromised when the trial court excluded relevant sentencing evidence, namely testimony on proportionality in capital sentencing.

A witness from the State Public Defender's Office would have testified that in only nine percent of capital indictments was a death sentence actually imposed. {l[ 161} Under the Eighth Amendment, an accused is entitled to individualized sentencing in determining whether the death penalty is imposed. See Lockett v. Ohio (1978), 438 U.S. 586, 601 98 S.Ct. 2954, 57 L.Ed.2d 973;

Woodson v. North Carolina (1976), 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944. "In Eighth Amendment jurisprudence, mitigating factors are facts about the defendant's character, background, or record, or the circumstances of the offense, that may call for a penalty less than death." State v. GVhite (1999), 85 Ohio St.3d

433, 448, 709 N.E.2d 140, citing Franklin v. Lynaugh (1988), 487 U.S. 164, 108

33 SUPREME COURT OF 01110

S.Ct. 2320, 101 L.Ed.2d 155. Moreover, R.C. 2929.04(C) grants great latitude to the defendant in the presentation of mitigating evidence during penalty-phase proceedings. See, e.g_, State v. Landrurn (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (hearsay statement of accomplice wrongfully excluded).

{¶ 162} Nonetheless, we hold that the trial court did not err, because "[t]he proportionality review mandated by R.C. 2929.05 is reserved for appellate

courts." State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 68, which upheld the trial court's refusal to allow comparison evidence relating to other capital offenses. See, also, State v. Roe (1989), 41 Ohio St.3d 18, 25, 535 N.E.2d 1351 (evidence of disposition of other capital cases in county not relevant to sentencing decision); State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273,

509 N.E.2d 383, paragraph one of the syllabus; State v. Glenn (1986), 28 Ohio St.3d 451, 458, 28 OBR 501, 504 N.E.2d 701 (newspaper articles debating the death penalty not relevant); State v. Jenkins (1984), 15 Ohio St.3d 164, 189-190, 15 OBR 311, 473 N.E.2d 264 (testimony of defense witnesses on capital- punishment statistics was "clearly irrelevant"). Therefore, we reject proposition VIII.

Prosecutorial Misconduct (IX) {¶ 163} In proposition IX, Ketterer contends that the prosecutor's misconduct in making improper arguments relative to mitigation proceedings violated his constitutional rights. Wliether a prosecutor's remarks constitute misconduct depends upon (1) whether the remarks were improper and, (2) if so, whether the remarks prejudicially affected an accused's substantial rights. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 470 N.E.2d 883. Accord State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293. The touchstone of this analysis "is the faimess of the trial, not the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78.

34 January Tem, 2006

{¶ 164} Nature and circumstances of the o(fens•e. Ketterer first argues that the prosecutor improperly argued the nature and circumstances of the offense as an uncharged aggravating circumstance. Admittedly, "[i]t is improper for prosecutors in the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are `aggravating circumstances.' " State v. Wogenstahl, 75 Ohio St.3d 344, 662 N.E.2d 311, paragraph two of the syllabus.

{¶ 165} Nonetheless, "it is perfectly acceptable for the state to present arguments concening the nature and circumstances of the offense." Id. at 355,

662 N.E.2d 311. Moreover, Wogenstahl noted, "R.C. 2929.04(B) specifically provides that the * * * three-judge panel 'shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense * **.' (Emphasis added.)" Id. See, also, State v. Stumpf(1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus.

{¶ 166} Viewed in the light of these controlling principles, the prosecutor committed no misconduct by refen-ing to "the nature and the circumstances of this aggravated robbery, and this aggravated murder"; or "the nature and circumstances of a robbery[,] burglary and a murder." See Wogenstahl, 75 Ohio St.3d at 356, 662 N.E.2d 311. Moreover, Ketterer did not object to the prosecutor's references to the physical details of the crime duiing the penalty phase, and no plain error occurred. Crim.R. 52(A) and (B).

{¶ 167} Further, the context of the prosecutor's remarks demonstrates that the prosecutor was not trying to argue that the facts were an aggravating circumstance, but was attempting to challenge Ketterer's claimed mental status as a R.C. 2929.04(B)(3) mitigating factor. "A prosecutor can respond to issues raised by an accused." State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 101.

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{¶ 168} Finally, the three jttdge panel is presunied to have "`considered only the relevant, material, and competcnt evidence in arriving at its judgment unless it affirmatively appears to the contrary.' " Pos•t, 32 Ohio St.3d at 384, 513

N.E.2d 754, quoting State v. White (1968), 15 Ohio St.2d 146, 151, 44 0.O.2d

132, 239 N.E.2d 65. 111691 Misstatement as to record. Ketterer also argues that the prosecutor misstated the record when he asserted: "There is no evidence before this panel that this violent act or acts were produced by mental illness. No evidence that the cause of the aggravated robbery, the cause of the aggravated burglaiy and the fact that this gentleman * * * was killed in his own home to escape apprehension, detection, trial or punishment was a direct result of any mental illness." {¶ 170} Ketterer claims that the prosecutor misstated the evidence because Dr. Jeffrey Smalldon tied Ketterer's criminal acts directly to his mental status. However, Ketterer failed to object to the prosecutor's comment and thereby waived all but plain error. Williams, 51 Ohio St.2d at 117, 5 0.O.3d 98, 364 N.E.2d 1364. We find no plain error. {¶ 171} Both Dr. Hopes and Dr. Smalldon testified during the mitigation hearing that Ketterer suffered from bipolar disorder. Dr. Smalldon called it "one of the most severe kinds of mental illness." Further, according to Dr. Smalldon, Ketterer "because of his bipolar disorder lacked substantial capacity at the time * * * this offense was committed to conform his conduct to the requirements of the law." But neither Dr. Smalldon nor Dr. Hopes testified specifically that the crimes were "a direct result of any mental illness" or that mental illness caused Ketterer to commit the crimes. {¶ 172} The prosecutor was entitled to argue the state's interpretation of the evidence. "Prosecutors are entitled to latitude as to what the evidence has shown and what inferences can reasonably be drawn from the evidence." Srnith,

36 January Tenn, 2006

80 Ohio St.3d at 111, 684 N.E.2d 668. Accord State v. Richey (1992), 64 Ohio St.3d 353, 362, 595 N.E.2d 915.

11173) Inflaming the passions of the court. Also in proposition IX, Ketterer argues that the prosecutor sought to "inflame the passions of the trial panel." As an example, Ketterer refers to the prosecutor's comment that "some of the [crime-scene] photographs are gory and some of the photographs are giuesome but so, too, were the acts of the defendant in this case." {¶ 174} We reject Ketterer's claim of prejudicial error. Ketterer "received a fair trial before trained jurists" notwithstanding claims of prosecutorial misconduct. Lott, 51 Ohio St.3d at 167, 555 N.E.2d 293. The three- judge panel is presumed to have "`considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.' " Post, 32 Ohio St.3d at 384, 513 N.E.2d 754, quoting White, 15 Ohio St.2d at 151, 44 0.O.2d 132, 239 N.E.2d 65. For the foregoing reasons, we reject proposition IX.

Execution of the Mentally Ill (XIII) {¶ 175} In proposition XIII, Ketterer argues that the execution of a severely mentally ill person is cruel and unusual punishment and is thus constitutionally prohibited. However, we reject proposition XIII on the basis of our decision in State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 154-158.

Cumulative Error (XV)

{¶ 176} In proposition XV, Ketterer makes a generalized claim that the cumulative effect of errors in his trial necessitates reversal of lris conviction and death sentence. However, Ketterer received a fair trial and a fair sentencing determination, and no errors occurred that prejudiced his substantial rights.

Moreover, "[s]uch errors cannot become prejudicial by sheer weight of numbers."

37 SUPREME COUR"P OF OHIO

State v. Hill (1996), 75 Ohio St.3d 195, 212, 661 N.E.2d 1068; see, also, State v. Hooks (2001), 92 Ohio St.3d 83, 85, 748 N.E.2d 528. Settled Issues (X, XIV) {¶ 177} Proportionality. We summarily reject Kctterer's proposition X, which challenges Ohio's system of proportionality review. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23; State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus; State v. Poindexter ( 1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. {¶ 178} Constitutionality. We also summarily reject Ketterer's proposition XIV, whiclr challenges the constitutionality of Ohio's death-penalty statute. State v. Carter (2000), 89 Ohio St.3d 593, 606-608, 734 N.E.2d 345;

State v. Clemons ( 1998), 82 Ohio St.3d 438, 454, 696 N.E.2d 1009; State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. Finally, we reject Ketterer's intemational-law challenge. See State v. Bey (1999), 85 Ohio St.3d

487, 502, 709 N.E.2d 484; State v. Phillips ( 1995), 74 Ohio St.3d 72, 103-104,

656 N.E.2d 643. Sentence Appropriateness (XI)

{¶ 179} In proposition XI, Ketterer argues that the aggravating circumstances do not outweigh significant mitigating evidence, particularly his mental problems. We will consider this claim during our independent sentence evaluation. INDEPENDENT SENTENCE EVALUATION Penalty-Phase Evidence {¶ 180} At the penalty phase, the defense presented a variety of witnesses and documentary evidence to establish various mitigating factors. {¶ 181} Dr. Bobbie Hopes, a clinical psychologist, evaluated and tested Ketterer to determine his competency to stand trial and to evaluate a possible plea of not guilty by reason of insanity. Dr. Hopes also described Ketterer's history

38 January Term, 2006

and background. Kcttcrer, born in May 1949 in I-Iamilton, Oliio, was raised by

his parents, along witli tlu•ee brothers. As a youth, Ketterer developed rheumatic

fever and was fi•equently hospitalized during his first 12 years. His father, who physically abused hini, died when Ketterer was 13 years old. Ketterer did poorly

in school and quit in the 11th grade. {¶ 182) Ketterer entered the Army in 1968 and was honorably discharged

in 1971. In 1973, he was sentenced to prison for three years for an armed robbery involving a toy pistol. For over 20 years, Ketterer lived and worked as an itinerant house painter in various parts of the country. In 1996, while living in California, a van struck Ketterer, and he has since suffered from seiious neck and back pain despite hospitalization and therapy.

{¶ 183) According to Dr. Hopes, Ketterer's extensive psychological history extends back to 1979, with treatment and hospitalizations in Veterans Administration facilities throughout the country, including Califomia, Arizona,

Oklahoma, Tennessee, and Ohio. His treatment has included at least three in- house drug-treatment programs. Over the years, physicians and psychologists have diagnosed Ketterer as suffering from alcohol dependency, polysubstance dependency (amphetamines, cocaine, opiates, and other substances), chronic depression, major depressive disorders, and bipolar disorder. Ketterer also has a personality disorder with antisocial and borderline traits and an extensive history of suicide attempts and gestures.

{¶ 184) In Dr. Hopes's view, Ketterer does have a "severe mental disease or defect. I-Ie suffers from bipolar disorder, and he has symptoms of both manic and depressive disorders * * * [and] features of personality disorders." His mental disease or defect has "psychotic features" in that he has "auditory hallucinations" and is "paranoid." According to Dr. Hopes, a genetic component exists as to Ketterer's mental status in that Ketterer's family is "filled with people with depression, bipolar disorder, and suicides."

39 SUPREME COURT OF OHIO

11185) Mary Johnson, a drug addict, had known Ketterer for 27 years, and he befriended her many times, tried to get her to stop using drugs, and provided food and shelter for her when she was living on the street and committing prostitution. Johnson testified that she loves and wants to marry Ketterer, who "was very good to [lier], nice, gentle, kind." {¶ 186} Jacklyn Lutes, another drug addict, testified that she has been

Ketterer's friend for 21 years and that she is like a sister to him. At various times, when Lutes was living on the street, Ketterer provided housing and food and discouraged her from using drugs. In 1997 and 1998, they both attended Alcoholics Anonymous meetings, but when she started using drugs again, she would lose contact with Ketterer. At times, Ketterer was sober and did not use drugs, but he often relapsed. Lutes described Ketterer as a nice guy, whom she loves like a brother. {¶ 187} Norman Lewis, the county jail warden, testified that Ketterer was never a problem inmate, and Lewis never received any complaints against

Ketterer. {¶ 188} Thomas Ketterer, the defendant's younger brother, testified that he is on a variety of medications and has a depression/anxiety disorder. The defendant has two other brothers, George and Michael, both of whom also have mental problems. George was in Lima State Hospital for the criminally insane for a few years. When the Ketterer brothers were being raised, their father regularly beat his three older sons witlr a razor strap, sometimes for no reason. Thomas loves his brother Donald, and he does not want him to receive the death penalty.

{¶ 189} Dr. Jeffrey Smalldon, a board-certified forensic psychologist, evaluated Ketterer and administered a batteiy of psychological tests. Dr. Smalldon also reviewed other relevant records, including records of 13 different psychiatric hospitalizations of Ketterer between 1995 and 2002. Common themes of diagnosis at different facilities show a prominent mood disorder, namely

40 January Term, 2006

depression or bipolar disorder, a long-standing history of alcoholism, a chronic history of polysubstance dependence, and a personality disorder with borderline and anti-social features.

{¶ 190} Ketterer began drinking when he was 14 years old and drank more heavily after joining the Army when he was 19 years old. He also began to use methamphetamines. For 30 years, Ketterer has been a chronic alcoholic, and he has used different drugs, including marijuana, amphetamines, cocaine, and barbiturates. During his life, he has tried at times to remain drug- and alcohol- free and has periodically succeeded, once for four and one-half years. {¶ 191} Dr. Smalldon tested Ketterer's IQ at 72, or borderline, while Dr. Hopes tested Ketterer's IQ at 84. Dr. Smalldon noted, however, that Dr. Hopes did not conduct one particular subtest on which Ketterer perfonned very poorly, and a low-70s IQ would be more accurate. School records reflected Ketterer's IQ as 80 when he was 11 years old, and a later test at age 15 showed a verbal IQ of 74 with a vocabulary IQ of 62.

{J[ 192} In Dr. Smalldon's view, Ketterer has a severe bipolar disorder,

"one of the most severe kinds of mental ilhzess." At times, Ketterer's disease manifests in major depression, at "other times manifesting in a manic episode or highly elevated energy and extreme problems [in] self-regulation and impulse control." Dr. Smalldon concluded that Ketterer "because of his bipolar disorder lacked substantial capacity at * * * the time this offense was comniitted to conform his conduct to the requirements of the law." Smalldon agreed, however, that a viable defense of not guilty by reason of insanity did not exist and that Ketterer was competent to be tried.

{¶ 193} In an unsworn statement, Ketterer lamented, "I stand before you as a shamed and saddened man having to deal with all the bad terrible things that I have done because of my mental illness and alcohol and drug abuse." According to Ketterer, Sanders treated him as a "real father." I-Ie said, "[Sanders] never beat

41 SUPREME COURT OF OHIO

nic, always had patience for me and treated me like a son and took ine fishing and played ball with me and listened to my problems like a father should be."

Because of Sanders, Ketterer "was clean and sober for 40 some months."

{¶ 194} Ketterer expressed strong regrets to the trial panel: "I'm so sorry, so sorry[,] * * * please forgive me." He added, °[A]Il I can ask is that the Lord please forgive me, that the Court try to show some kind of mercy." He asked forgiveness from the family and friends of Sanders and prayed that at least one judge would vote for life imprisonment.

{¶ 195} The defense also offered several exhibits into evidence, including Ketterer's school records, a military-discharge form reflecting his Army service from October 1968 until his honorable discharge in June 1971, and extensive medical-treatment records from psychiatric facilities. These exhibits provide detail on Ketterer's background and psychiatric history and support testimony from Dr. Hopes and Dr. Smalldon. Sentence Evaluation {¶ 196} After independent assessment, we hold that the evidence proves the aggravating circumstances-i.e., that Ketterer killed Sanders in the course of an aggravated burglary, R.C. 2929.04(A)(7), duiing an aggravated robbery, R.C. 2929.04(A)(7), and to escape detection or apprehension, R.C. 2929.04(A)(3). {¶ 197} As to mitigation, we hold that the nature and circumstances of the offense offer no mitigating features. In the course of an aggravated burglary and aggravated robbery, Ketterer murdered his 85-year-old friend, Sanders, by beating and stabbing him to death. Then Ketterer looted Sanders's home and stole his car.

{¶ 198} In contrast, Ketterer's history and background do provide modest mitigating features, although his character offers nothing mitigating. When

Ketterer and his threc brothers were being raised, their father beat them with a razor strap, and all of the brothers suffered from various mental problems.

42 January Term, 2006

Ketterer's father died when he was 13 years old. When Ketterer was 14 years old, he began drinking and later dropped out of high school. We accord some

mitigating weiglit to evidence of his deprived childhood and dysfunctional family upbringing.

{J( 199} As to Ketterer's background, we also accord mitigating weight to his service in the United States Army from 1968 until 1971 and his honorable

discharge. See State v. He.ssler• (2000), 90 Ohio St.3d 108, 130, 734 N.E.2d 1237. We accord only minimal mitigating weight to his sporadic history of employment

as an itinerant painter from 1976 until his arrest. Cf. State v. Fox (1994), 69 Ohio St.3d 183, 194, 631 N.E.2d 124. As to "other factors," R.C. 2929.04(B)(7), we accord minimal mitigating weight to his friendship with and assistance to two

women in distress who think highly of him. We also recognize as mitigating that Ketterer lias not been a disciplinary problem while incarcerated and that he

expressed remorse in his unsworn statement. Cf. State v. Rojas (1992), 64 Ohio St.3d 131, 143, 592 N.E.2d 1376. Further, we regard Ketterer's assistance to police, and particularly his guilty plea, as a significant mitigating factor. See Ashwor•th, 85 Ohio St.3d at 72, 706 N.E.2d 1231.

{¶ 200} In evaluating this case, we note that Ketterer has been a chronic alcoholic and drug abuser for over 30 years. At times, he maintained sobriety and then relapsed. Considering his ability at times to remain sober and drug-free, we accord only minimal weight for his status as an alcoholic and chronic drug user. {¶201} We regard evidence of Ketterer's severe mental problems as a significant mitigating factor under R.C. 2929.04(B)(3). Both Dr. Smalldon and Dr. Hopes diagnosed Ketterer as suffering from a bipolar disorder, which was described as "one of the most severe kinds of mental illness." From 1995 to late 2002, Ketterer was hospitalized for his psychiatric problems on 13 occasions in

Tennessee, Texas, Oklahoma, Ohio, Arizona, and California, and his psychiatric records corroborate their diagnosis. In addition to alcoholism, polysubstance

43 SUPREME COURT OF OFIIO

dependence, and the bipolar disorder, Ketterer has a personality disorder with prominent borderline and antisocial features. Further, Ketterer has a limited IQ, which has been tested between 72 and 84, and we accord that factor weight in mitigation. Cf. State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 115-119.

{¶ 202} In Dr. Smalldon's view, Ketterer "because of his bipolar disorder lacked substantial capacity at the time * * * this offense was committed to conform his conduct to the requirements of the law." Although Dr. Hopes did not specifically confirm this finding, her testimony was consistent with finding this R.C. 2929.04(B)(3) factor. No evidence contradicted this finding. Thus, we regard the R.C. 2929.04(B)(3) factor as proved by a preponderance of the evidence. {¶ 203} As to other statutory mitigating factors, Sanders did not induce or facilitate the offense, R.C. 2929.04(B)(1), nor did Ketterer act under "duress, coercion, or strong provocation," R.C. 2929.04(B)(2). Ketterer cannot claim tender years, R.C. 2929.04(B)(4), or lack of a criminal record, R.C.

2929.04(B)(5), or accomplice status, R.C. 2929.04(B)(6). Under R.C. 2929.04(B)(7), we consider as mitigating factors Ketterer's remorse, his assistance to others, his adaptability to a structured environment, his assistance to police, and his guilty plea to the offenses charged against him.

{J[ 2041 After weighing the aggravating circumstances against the mitigating evidence, we conclude that the aggravating circumstances outweigh the collective mitigating factors. In the course of an aggravated robbery and aggravated burglary, Ketterer savagely beat and stabbed his fiiend, an 85-year-old man. Although Ketterer suffers from a major mental illness, his condition is "one of the most treatable of the major mental illnesses."

44 January Term,2006

{¶ 205} Further, Ketterer has received extensive medical treatment, the benefit of many liospitalizations, and many opportunities to take control of his life. He has repeatedly failed to do so.

{¶ 206} Further, we hold that the death penalty is proportionate when compared with other aggravated murders committed during the course of an aggravated burglary and an aggravated robbery. See, e.g., State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 151; State v. Jones (2000), 90 Ohio St.3d 403, 423, 739 N.E.2d 300; State v. Stallings (2000), 89 Ohio St.3d 280, 301, 731 N.E.2d 159; State v. Spivey (1998), 81 Ohio St.3d 405, 424, 429, 692 N.E.2d 151; State v. Berry (1995), 72 Ohio St.3d 354, 366-367, 650 N.E.2d

433; State v. Slagle (1992), 65 Ohio St.3d 597, 614, 605 N.E.2d 916; State v. Murphy, 65 Ohio St.3d 554, 586, 605 N.E.2d 884; State v. Lott, 51 Ohio St.3d

160, 177, 555 N.E.2d 293; and State v. Barnes, 25 Ohio St.3d 203, 213, 25 OBR 266, 495 N.E.2d 922.

{¶ 207) We also conclude that the death penalty is proportionate when compared with cases involving killings to escape detection. See, e.g., State v. Sheppard (1998), 84 Ohio St.3d 230, 232, 241, 703 N.E.2d 286; State v. Burke (1995), 73 Ohio St.3d 399, 407, 653 N.E.2d 242.

{¶ 208) Accordingly, we affirm the judginent of the common pleas coutt.

Judgment affirmed.

RESNICK, O'CONNOR, O'DONNFLL, and LANZINGER, JJ., concur.

1'FFIFER and LUNDBERG STRATTON, JJ., concur separately.

LUNDBERG STRATTON, J., concurring.

{¶ 2091 Ketterer is not a sympathetic defendant. He brutally murdered a family friend because he felt that his friend had been disrespectful to him when Ketterer asked to borrow some money. After the ruthless murder, Ketterer stole whatever he could find and traded the ill-gotten goods for cocaine.

45 SUPREME COUR7' OF OHIO

{¶ 210} However, there are other facts also vital to understanding this apparently senseless murder. Ketterer is a person with a serious mental illness.

His family also has had a long history of mental illness and suicide attempts.

Ketterer himself was hospitalized repeatedly and attempted suicide several times. His mental ilhiess was fueled by drug and alcoliol abuse. Two psychologists testified that Ketterer had a serious mental illness, known as bipolar disorder, which makes it difficult for him to control impulses normally. Not even the state disputed that he was seriously mentally ill. But the state argued that Ketterer could have controlled his behavior. The three-judge panel accepted the state's position. Ketterer has now been sentenced to death.

{¶ 211} Ketterer did not meet the standard for being found not guilty by reason of insanity. Under our cuiTent law, the evidence supported a finding of guilt. However, we can never truly know whether Ketterer would have committed this senseless crime against a long-time friend had he not been seriously mentally ill. The undisputed testimony regarding Ketterer's serious mental illness places him in a very different category from persons without a mental illness. One expert clearly testified that Ketterer was not able to control his impulses. The facts of the ciime seem to show that Ketterer had the ability to plan and act. But how can we truly judge the effect of this terrible illness? {T 212} 1 believe that the time has come to reexamine whether we, as a society, should administer the death penalty to a person witli a serious mental illness. {¶ 213} Although the majority opinion deals mostly with guilt-phase issues, the court does acknowledge that Ketterer suffers from an undisputedly serious mental illness. However, a deeper exploration of the facts yields greater insight on this issue.

{¶ 214} The defense presented solid, unrefuted evidence at trial that

Ketterer had been afflicted by lifelong mental illness. Dr. Bobbie Hopes, a

46 January Tertn, 2006

clinical psychologist testifying for the defense, con-ipleted a forensic evaluation of

Ketterer's competency. At trial, she testified, "As a child, [Ketterer] was severely

physically abused by his father. His two older brothers and his mother were also physically abused. His father died when Ketterer was 13 years old, and despite

years of physical abuse, Ketterer found this death very traumatic. And he started hearing voices, his father's voice, witliin about a year after his father died, so around age 15 he started hearing his father's voice. Primarily what he would hear would be his father threatening to beat him or telling him to assume the position for a beating."

{¶ 215} In preparing for her evaluation, Dr. Hopes reviewed psychiatric records from at least 13 different cities and hospitals where Ketterer had been adinitted. He had had at least one hospitalization in each in these facilities and some private hospitalizations. According to Dr. Hopes, Ketterer's history of mental illness dates to 1979, with treatment and hospitalizations in Veterans

Administration ("VA") hospitals in at least five states. In addition, his treatment included at least three in-house drug-treatment programs.

{¶ 216} Dr. Hopes testified that Ketterer has had different diagnoses throughout his life. For many years, the primary diagnosis was major depressive disorder. More recently, from about 1997 on, the more common diagnosis has been bipolar disorder. In addition, various reports refer to personality-disorder, antisocial, and borderline-personality traits.

{¶ 217} Dr. Hopes testified that Ketterer also has a long history of chemical abuse. His voluminous hospital records refer to a long history of drug and alcohol dependency and "multi-drug abuse," including abuse of marijuana, amphetamines, cocaine, and narcotics. Narcotics abuse followed his 1996 spinal injury.

(12181 According to Dr. Hopes, in the months preceding the crimes, Ketterer had deteriorated so much that he attempted suicide after his landlord

47 SUPREME COURT OF OHtO

would not fix the windows immediately. Iie drank half a bottle of whiskey aud took his entire month's supply of Klonopin, an antianxiety divg, and Elavil, an antidepressant. In the opinion of Dr. Hopes, Ketterer was so embarrassed by his relapse that he did not tell his psychiatrist at the VA hospital about his relapse, so he went for a month without his medicine, deteriorated further, began another drinking binge, started using cocaine, and was again mixing Klonopin with alcohol.

{¶ 219} In Dr. Hopes's opinion, Ketterer suffers from bipolar disorder, a severe mental disease or defect, with symptoms of both manic and depressive disorders and features of personality disorders. Dr. Hopes opined that Ketterer's mental illness includes psychotic features, including auditory hallucinations and paranoia.

{¶ 220} Dr. Hopes testified that when she inteiviewed Ketterer, he was expeiiencing five symptoms of depression: crying, lack of appetite, insomnia, fatigue, and diminished ability to concentrate. He was distracted by his own thoughts and could not concentrate on any one topic. Dr. Hopes testified that it normally takes her two hours to do a competency evaluation, but in Ketterer's case, it took her three hours, and she obtained less information from him than she obtains in two hours during the usual evaluation.

{¶ 221} Dr. Hopes noted that the primary characteristics of mania are poor impulse control and impaired judgment. "People with this disorder tend to do things that are inappropriate, unethical and illegal, and things that they wouldn't normally do if they weren't in a manic phase." Moreover, Ketterer's use of alcohol and illicit drugs seriously intensified his mental illness and accelerated his poor judgnient and lack of impulse control.

{¶ 222} Dr. Hopes also noted that Ketterer fell into the category of about 20 to 30 percent of people with bipolar disorder who have residual symptoms that never go away. Dr. Hopes testified that there is a genetic component to mental

48 Januaiy Term, 2006

illness and that many of Ketterer's family members suffer from depression and bipolar disorder. Ketterer's brother was diagnosed with and treated for major

depressive disorder for many years, and more recently, he has been treated for bipolar disorder. Another brother was hospitalized at a state mental hospital, and a cousin was treated for depression. A cousin and an uncle both committed suicide.

{¶ 223} Dr. Jeffrey Smalldon, a respected board-certified forensic psychologist, also interviewed Donald Ketterer and testified for the defense. In addition to his clinical evaluation, Dr. Smalldon administered IQ tests. Ketterer's verbal IQ estimate was 76, his performance IQ estimate was 73, and his full-scale IQ estimate was 72. According to Dr. Smalldon, 72 falls within "the borderline range of IQ. And what that means is that typically IQs 70 and below are associated with diagnosis of mental retardation. * * * So [Ketterer] falls toward the bottom of that borderline range that comes between mild and mental retardation and low average." Although Dr. Hopes estimated a verbal IQ of 84,

Dr. Smalldon noted that Dr. Hopes failed to administer the "vocabulary subtest, which was one of the verbal subtests on which Ketterer obtained his lowest score. Had she administered that subtest, that would have significantly lowered his verbal IQ estimate from 84 to somewhere within the 70s."

{¶ 224} Dr. Smalldon counted 13 different psychiatric hospitalizations between 1995 and 2002. Dr. Smalldon testified that Ketterer suffers from a major mental illness: "Certainly in my diagnostic impression, the most severe, the most significant mental illness is bipolar disorder mixed meaning at various times manifesting periods of major depression and other times manifesting in a manic episode or highly elevated, energy and extreme problems in self-regulation and impulse control. Certainly the bipolar mixed with at least fluctuating psychotic symptoms over time is the most signifieant mental health problem that I have diagnosed him as having."

49 SIJPREME COURT OF OHIO

{¶ 225} As for Ketterer's substance-abuse problems, Dr. Snialldon testified that Ketterer's mother told Ketterer that his alcoholic father had put

alcohol in his baby bottle to make him sleep. Ketterer began drinking by choice

at around age 14, sliortly after his father's death. He continued to drink throughout his adolescence. When he entered the Army at age 19, he began drinking more heavily and using speed more heavily. For over 30 years, he was

chronically alcohol dependent and abused a wide variety of substances, such as marijuana, speed, barbiturates, and cocaine.

{¶ 226} Dr. Smalldon testified that because of Ketterer's bipolar disorder, Ketterer "lacked substantial capacity at the time or around the time this offense was committed to conform his conduct to the requirements of the law."

{¶ 227} The defense testimony regarding Ketterer's severe mental illness was unrefuted. Even the majority acknowledges that no evidence contradicted these findings, and it gave his mental illness weight in mitigation. See R.C.

2929.04(B)(3). However, the majority relied on Dr. Smalldon's description of bipolar disorder as "one of the most treatable of the major mental illnesses," despite Dr. Hopes's conclusion that Ketterer was in the category of persons with bipolar disorder whose recurrent symptoms never go away. {li 228} The issue here is not Ketterer's guilt. 7'he three-judge panel had

sufficient evidence for its finding. In light of the evidence presented, the panel could choose to discount the expert's testimony regarding Ketterer's lack of substantial capacity to conform his conduct to the law, even though no professional refuted that testimony. And under our current law, the court's sentence of death is also supported. It is, however, the current law, I believe, that we as a society should reexamine.

{¶ 229} Our law requires "a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual." Eddings v. Oklahoma (1982), 455 U.S. 104, 110, 102 S.Ct. 869, 71

50 January Tern-i, 2006

L.Ed.2d 1. In Atkins v. Virginia (2002), 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335, the United States Supreme Court concluded that executing mentally retarded offenders constituted cruel and unusual punishment forbidden by the

Eighth Aniendment to the United States Constitution. The court determined that

"evolving standards of decency" dictated that conclusion. Id., quoting Ford v. Wainwright (1986), 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335.

{¶ 230} Atkins identified " 'retribution and deterrence of capital crimes by prospective offenders' " as the social purposes served by the death penalty. Id. at 319, 122 S.Ct. 2242, 153 L.Ed.2d 335, quoting Gregg v. Georgia (1976), 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859. Atkins noted that there was a serious question as to whether either justification applied to mentally retarded offenders. Id. at 321, 122 S.Ct. 2242, 153 L.Ed.2d 335. I too question whether either justification applies to severely mentally ill offenders. {¶ 231} Deterrence is of little value as a rationale for executing offenders with severe mental illness when they have diminished impulse control and planning abilities. As for retribution, capital punishment still enjoys wide public support among Americans, but a Gallup Poll conducted in October 2003 found that while almost two thirds of Americans surveyed support the death penalty, 75 percent of those surveyed in 2002 opposed executing the mentally ill. Kevin Drew, Arkansas Prepares to Execute Mentally Ill Inmate, CNN.com, Jan. 5, 2004, at http://www.cnn.com/2004/LAW/01 /05/singleton.death.row/index.html. {¶ 232} Society's discomfort with executing the severely mentally ill among us is further evidenced by the American Bar Association's formation of a task force in 2003 to consider mental disability and the death penalty. After studying the issue, the task force made reconimendations that were adopted by the ABA House of Delegates in August 2006:

{¶ 233} "RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction

51 SUPREME COURT OF OHIO

that imposes capital punishment to iniplement the following policies and procedures:

{¶ 234} "l. Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.

{¶ 235} "2. Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences, or wrongfulness of their conduct; (b) to exercise rational judgment in relation to conduct; or (c) to conform their conduct to the requirements of the law." See ABA Repott with Recommendation No. 122A, Adopted August 2006, at http: //www.abanet. org/leadership/2006/annual/dailyjournal/hundredtwentytwoa.d oc. See, also, Symposium: The Death Penalty and Mental Illness, Recommendations of the American Bar Association Section of Individual Rights & Responsibilities Task Force on Mental Disability and the Death Penalty (2005), 54 Cath.U.L.Rev. 1115.

{¶ 236} 1'he National Alliance on Mental Illness ("NAMI") adopted both of these recommendations as part of its public policy platform. Public Policy Platform of NAMI (7th Ed.Rev.) Sections 9.6.1.1 and 9.6.1.2. The American Psychological Association adopted both recomniendations, and the American Psychiatric Association adopted the second recommendation. Tabak, Overview of Task Force Proposal on Mental Disability and the Death Penalty (2005), 54 Cath.U.L.Rev. 1123, 1125-1126, fn. 11 and 12.1

1. This information was obtained prior to the final adoption of ABA Recommendation No. 122A by the ABA House of Delegates in August 2006; presumably, these groups will also now adopt the final recommendations.

52 January 1'erm, 2006

{¶ 2371 Over the past 30 years, the number of people on deatli row with mental illness and other disabilities has steadily increased. Although precise

statistics are not available, it is estimated that five to ten percent of people on death row have a serious mental illness. National Mental Health Association,

Death Penalty & People with Mental Illnesses (2006), http://www.nmha.org /posi tion/deathP enalty/deathpenalty. c fm.

{¶ 238} Moreover, Ketterer suffers from co-occurring disorders: a serious mental illness and substance-abuse issues. Research has shown that co-occurring

disorders are very common. The NAMI website cites reports published in the Journal of the American Medical Association, finding, "Roughly 50 percent of individuals with severe mental disorders are affected by substance abuse."

http: //www. nami. org/Templ ate.cfm? S ection=Byll ln es s&template=/ContentMana gement/ContentDisplay. cfm&ContentlD=10333.

{¶ 239} Further, NAMI cites two suiveys as the best data available on the prevalence of co-occurring disorders: the Epidemiologic Catchment Area ("ECA") Survey, administered between 1980 and 1984, and the National

Comorbidity Survey ("NCS"), administered between 1990 and 1992. Id. "Results of the NCS and the ECA Survey indicate high prevalence rates for co- occurring substance abuse disorders and mental disorders, as well as the increased risk for people with either a substance abuse disorder or mental disorder for developing a co-occurring disorder. For example, the NCS found that:

{¶ 2401 "• 42.7 percent of individuals with a 12-month addictive disorder had at least one 12-month mental disorder.

{¶ 241} "• 14.7 percent of individuals with a 12-month mental disorder had at least one 12-month addictive disorder," Id.

{¶ 242} In addition, "[t]he ECA Survey found that individuals with severe mental disorders were at significant risk for developing a substance use disorder during their lifetime. Specifically:

53 SUPREME COURT OF OHIO

{¶ 243} "• 47 percent of individuals with schizophrenia also had a substance abuse disorder (more than four times as likely as the general population).

{¶ 244} "• 61 percent of individuals with bipolar disorder also had a substance abuse disorder (niore than five times as likely as the general population)." (Emphasis added.) Id.

{¶ 245} Justice John Paul Stevens, writing for the Supreme Court majority in Atkins, concluded, "Mentally retarded persons* * * have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan* **. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability." Atkins, 536 U.S. at 318, 122 S.Ct. 2242, 153 L.Ed.2d 335. There seems to be little distinction between executing offenders with mental retardation and offenders with severe mental illness, as they share many of the same characteristics.

{¶ 246} I-Iowever, mental illness is not as easily quantified as mental retardation. Mental retardation is a fixed condition with more objective symptoms. Mental illness is a much broader category, with wide ranges of diagnoses and periods of decompensation and remission. Treatment options vary widely, including counseling, behavior modifications, group therapy, and medication. Some treatments and medications are controversial as to effectiveness and side effects. Mental illness as a defense is a difficult issue to quantify in a court of law.

{¶ 247} However, we have made enoi-mous medical and scientific advances in both diagnosis and treatment that are now supported by solid

54 January Term,2006

research. Therefore, while I personally believe that the time has come for our

society to add persons with severe mental illness to the categoiy of those excluded

from application of the death penalty, I believe that the line should be drawn by the General Assembly, not by a court. Some would argue that Atkins was the product of an activist court in basing its decision on "evolving standards of decency." Trop v. Dulles ( 1958), 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. However, nothing prevents the legislature from examining and using those same evolving standards. In fact, it is the legislature's role to do so. Therefore, I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vaiy widely in severity. The General

Assembly would be the proper body to examine these variations, take public testimony, hear from experts in the field, and fashion criteria for the judicial system to apply.

{¶ 248} "`[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.' " Furman v. Georgia (1972), 408 U.S. 238, 409, 92 S.Ct. 2726, 33 L.Ed.2d 346, fii. 7, quoting Letter to Samuel Kercheval, July 12, 1816, 15 The Writings of Thomas Jefferson 40-42 (Memorial Ed.1904). {¶ 249} T'he time has come for our society to reexamine the execution of persons with severe mental illness. Until the General Assembly does so, under our current law, they will continue to be executed. As I am bound to follow the law as it stands today, I reluctantly concur in the affirmance of Ketterer's sentence of death.

PFEIFER, J., concurs in the foregoing opinion.

55 SUPREME COLIRT OF OHIO

Robin N. Piper, Butler County Prosecuting Attorney, Daniel G.

Eichel, First Assistant Prosecuting Attorney and Chief, Appellate Division, and Michael A. Oster Jr., Assistant Prosecuting Attorney, for appellee. David H. Bodiker, Ohio Public Defender, and Rutli L. Tkacz and Timothy R. Payne, Assistant Public Defenders, for appellant.

56 IN THE COURT OF COMMON PLEAS 'Tlt1T4FR,COUNTY, OHIO

?003 MAR -4 PM^13: 27 STATE OF OHIO CASE NO. CR2003-03-0309 ..:n^1 i:,•.^^ :-,^^Ct( (Page 1 of 2) Plaintiff CLERPLtJF CQURTS vs. INDICTMENT FOR:

DONALD J. KETTERER AGGRAVATED MURDER with SPECIFICATIONS 1, 2 & 3, Defendant AGGRAVATED ROBBERY, AGGRAVATED BURGLARY, GRAND THEFT OF A MOTOR VEHICLE, and BURGLARY

STATE OF OHIO, COUNTY OF BUTLER, SS:

Of the Term January in the year two thousand and three.

THE JURORS OF THE GRAND JURY OF THE STATE OF OHIO, within andfor the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do ftnd and present that

COUNT ONE On or about the 24'" day of February, 2003, at Butler County, Ohio, DONALD J. KETTERER did purposely cause the death of Lawrence Sanders while the said DONALD J. KETTERER was committing or attempting to commit the offense of aggravated robbery, in violation ofthe Ohio Revised Code, Title AGGRAVATED MURDER, Section 2903.01(8), and against the peace and dignity of the State of Ohio.

SPECIFICATION 1 TO COUNT ONE: The Grand Jurors further find and specify pursuant to Revised Code Section 2929.04(A)(3) that the offense at bar.in Count One was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the•said DONALD J. KETTERER, to wit: felonious assault committed against Lawrence Sanders.

SPECIFICATION 2 TO COUNT ONE: The Grand Jurors further find and specify pursuant to Revised Code Section 2929.04(A)(7) that the offense at bar in Count One was committed while the said DONALD J. KETTERER was committing or attempting to commit the offense of aggravated robbery, and that the said DONALD J. KETTERER was the principal offender in the commission of the aggravated murder.

SPECIFICATION 3 TO COUNT ONE: The Grand lurors further find and specify pursuant to Revised Code Section 2929.04(A)(7) that the offense at bar in Count One was committed while the said DONALD J. KETTERER was committing or attempting to commit the offense of aggravated burglary, and that the said DONALD J. KETTERER was the principal offender in the commission of the aggravated murder. (Page 2 of 2)

COUNTTWO On or about the 240 day of February, 2003, at Butler County, Ohio, DONALD J. KETTERER, in attempting or committing a theft offense, to wit: attempting to knowingly obtain money from Lawrence Sanders with purpose to deprive him of said money by threat or intimidation, did fntlict, attempt to Inflict, or threaten to inflict physical harm on Lawrence Sanders, which offense is a felony of the first degree, in violation of the Ohio Revised Code, 77tleAGGRAVATED ROBBERY, Section 2911.01(A)(3), and against the peace and dignity of the State of Ohio.

COUNT THREE On or about the 24th day of February, 2003, at ButierCounty, Ohio, DONALD J. KETTERER, byforce, stealth or deception, trespassed in an occupied structure, to wit: the house of Lawrence Sanders maintained and occupied as his permanent habitation at 1104 ShulerAvenue, Hamilton, Ohio, with purpose to commit in said structure any criminal offense, and at the time the said DONALD J. KETTERER did inflict, attempt to inflict, or threaten to inflict physical harm on Lawrence Sanders, which offense is a felony of the first degree, in violation of the Ohio Revised Code, Title AGGRAVATED BURGLARY, Section 2911. 11 (A) (1), and against the peace and dignity of the State of Ohio.

COUNTFOUR On or about the 240 day of February, 2003, at Butler County, Ohio, DONALD J. KETTERER, with purpose to deprive Lawrence Sanders of his property, to wit: a 1995 Pontiac Grand Am four-door sedan, did knowingly obtain the said motorvehicle without the consent of the said Lawrence Sanders, which offense is a felony of the fourth degree, in violation of the Ohio Revised Code, Title GRAND THEFT OF A MOTOR VEHICLE, Section 2913.02(A)(1), and against the peace and dignity of the State of Ohio. COUNT FlVE On or about the 25"' day of February, 2003, at Butler County, Ohio, DONALD J. KETTERER, by force, stealth or deception, trespassed in an occupied structure, to wit: the house of Lawrence Sanders maintained and occupied as his permanent habitation at 1104 ShulerAvenue, Hamilton, Ohio, with purpose to commit in said structure any criminal offense, which offense is a felony of the third degree, in violation of the Ohio Revised Code, Title BURGLARY, Section 2911.12(A)(3), and against the peace and dignity of the State of Ohio.

Filed . 2003 ROBIN N. PIPER 23205) Defendant arraigned, and pleads PROSECUTING ATT RNEY ,

Guilty to this indictment. AS$i6fANT PROSECUTING ATTORNEY by CINDY CARPENTER A TRUE BILL CLERK OF COURTS by Deputy FOREPERSON, GRAND JURY COURT OF CDMMOlIPLFA4, 8U'71ER CaUN1Y, OHIO •

STATE OF OF9O . . _ . -, CASENO.CR

PtaNtM ;;•!,,1.MI?9 PLEA OF GUILIY AND JURY WANER ^^ON'fil-D

Oa(u,danc

I withdraw my farmer nat guilty plea and enter a plea*ai guUty W the foUowfng ofFenae(sJ:

Caunt or Otfensa/9osdtlcatlon . . ORCSee7fon SneciAoatlon Leval ' /^ ,^^p ^1 y4. B- L G C Z D-. E-

Maxlmum PenaNv: I understand that the maidmum penalty as 5a eadi munt le as foUaws

Ortensa! Maidmum Ala:dmum '^ Ma +l^o^. I eeme Prfson Tatm Prison Term Soeeillcation Stated Prison Fine F!-ne- • Susnenalon Is MandaEtibrv( Is Pmsiatied ]'erm (Vn/ma+) Canxc+rtlve Noqp sa Ali a00 a -^ 5 B $ 9 C-_ 8 9 D- S $ E- 5 S

My munsef has advfsad me of, and l fiilly understand, the fdlawing: ^

By this pleadUig GUILTY, I undantand Ihe CaurtwAl dedde my guUt based upon a stab9ment by the prosewinr ahout the euidanae whlch would have bean praserned at trlal. The Judge vAll accept the statement of eWdence as 4ue.

Prison tanne for mul9ple rharges may be Imposed mnsaeJ@vely by the CauA, even If mosecuflve santeneee am not manda+ary. If I am naw on felony pra6atlon. Perde, under a mrnmunity mntrW sanarlan, or under paet•refame mnad from pdsan, this plea may result In revocation pmaoadhtge and aay new senOence aoadd be Imposed mneewtNety.

Court mstr, msUWllon and ather flnandai sancCans indudiag flnea, day ftnea, and relmbunsement (or Mx met of any santltcrro may a4so be Impoeed:

Any prhan Oerm that I reaeiva as a result of this plea will be nened wi@vout goad time aedlL

In an, a pe^ af wP by the ' arola rel ham Prisan Is ( ry/a imly N senlen prlean feca ony 1 mY pdaan rei I vAU . yaersunder etertn Bosid. I am d n a 3cr ch Irnrdved g oc I Narr4 al I wUl have 3 ye:ae' a senfenae pmwn Tor fWany 3, 1 be gMen up . to 3 of contral, . . 61 vI ost re seco n leor n,lcan am atiYO'S8 on whp un er post releas canhol nd in ed ' n af s ' lon or up to mum If Ca ammns of supeM on whll under re ccnpvk e role Board- n:tum me pnne pnl or aoh viofatian^Lp to a aWm af'. my rigirysf'sta pri evenfftou I h al rved pdsan drm im u rt^cbyth^' yGrt If tlonis n felony d apriso of 9teeteh . of on year ol remainlna'o post qntrcl, > dmon to y othec san ffirm I posed6 the new o6en

Com lli^'L^I•T'.i k g.^a Court iot qgW 6y law pose A#O comm contral see e or ,^nctlan pon m ff5oate the ^n a eced'iQltlor(s6f a wnufi^ii ' contrql l , th urt ry the ^farlis 6 Intpase a Qmr afive aUo ^ep n e e st which I guiRy. un ^ir6baBon 1ee and Ih* do so r ra n . ernnmu aantrWl

I underetand the nature of these dia(ges and the possible defeneea I mlght have. I em sdLsfied wllh my a6ameys advkm and competenae. I am not under the inguence of drugs or alcohol. No threah have been made to me. No pramtses have been made except as part of ffile ptea agfeament stated antfrely as folfowa_ I'l$'"iUG

I undemland by pleading 6IJILTY, I give up my dght to-a jury tdsl or court hial, where I couW catBont and have my aftomey ques6an wltnesees agalnst me, and where I could use the power of the oaurt to catl wihiesses. ta testify for me. I know at trial I would not have to take the wftne.se stand end could not be fonad to tes6fy agenst myself and that no one aould aomment If I chose not tn testlfy. 1 understand I walve my dght to heve the pmseeutar, pmJe my gu6t beyond a n:asonabfe doubt on every element of eadt charge. I know that the jury verdktwouW have to be unan(moua bstore fhe jury eald find me guilty of any offense: . . . .

I understend my right to appeel a matdmum sentence, my ather Ilmited 'appellate^ dghts and +7ret any appeal • must Ite f0ed withhi thlrty (30) days of my seniencx. I undenst•and the ^osequenees of a oxwlc6on upon me H I am not aU.S. dttzen. I enter thls plea voluntarily. // fl ^„a ^,.^

The Court finds that this day the delendan),`(n-ap6n oourt, was advised of aff appffcable ConsBtutlanat rfghb and mede a knawtng. Intolligent, and vducdary vreNer of those nghts pursuent ta Com. R. 11. Tha ptea Is axapted and Is ortJered $ed. The Court flndsthe defendant gulty of each offense to which defendant has ente'ed thle ptae. A sentandng hearing Is schedded an at Band ls

oea

aAJ. fenn nnt nrr{nrr>ef ,.^. COURT OF COMMON:Pt.EAS, BUTLER COUNTY, OHIO

STATEOFOF110. CASENO.CR2j-P^'O^f

PfeGftlR

va. PLEA OF GUILTYAND JURY WANER I,^JN'n'^D 1^6?IZf^C^ . Dahndant

1wiHdrawmytonnernotguatypleeandenlerap+eao(gulitybthefollovringaffeqee(ek .^^..,.

CnantQr OtfernalSOecMcatlon ORCSeotlon Soe¢i(kaHan Lavel

A- B-- ^ C- D- E- 7

Ma:dmum PenaNr. I understand that the maximum penelty as (oeedi count Is as fo0oiww

Otfensa( IMa3dmum I+Ivdmum MandaWnr . Lk nse Prlaai Tann Prison Tann Susoenslon Sueet(taatlon. StatadPrlaon EQg Ane Is MandeCorv!' Is Presuned Tann (vralmaaV ' CansaanNe N A- 2 ?'l 1 5;1aiTe. s Y N D B.-- ^- o^ 5 $. so tzv $ t. ^o No G-^ c^ rwS s .5" s n0 ,UTI ti0 E^ h ^ sA^-00 s ^ Ny Nb) A) I/ ^ s s

My oounsel has advised me of, and I Nlty understand, the (otlnwing: •

By this pleading GtllLTY, I undamtand Mie Courtwll dedde my gupt based upon a statement by the prosenor about the evidence whkh woutdhave been p2sented at htal. The Judge will accept the s(etement of evidence as tfue.

Pdsan teime'(or muttlple drerges may be Imposed corweeutively by the Court; even If oonsawWe sentenms are not mandatary. If I am now on felany prabadon, pearde, under a wnununity eontrW senetlon, or under past•ndeese wntrd (rom pdson, this plea nmy reauR In revacaaan pnxeedinge and any new sentence coWd be Mpased consecuBvely.

Court costs, teadtutton and other 8nandal sanctions induding 8nes, day flnea, and teimbursemem (ar tha ooat of any sandlooe may also be Impaaed.

Any pdaan Idm that I re

prison Is ndabo optlo N this gail to prtl (ar.,a (e4 pdsan I have etury rel co 5 years ndenaond deEe ty I( I n ta p Por a . 2 felany 3 htch I ed wusing's man tary rel . oonovl yea ^I( I nxs a se ' m prlson r a Tel a, or,6:^ 1 rnay. be,&tven up to af co , .

I jc^ Hlvl ^rate any pos ease trol tule dltlan celve aAt6re attve n whii am under post releas controi and duratlo pervis or nttvi up^ th axim KI ' ^ tlans af supervj an while u er ease ' , theor^ . le^o Car)-retunt to in for to s for, aah vlalation p to a m s pdao n rtn.,eGen th hLWA ave alreal 'sfated pdeon nnimpos e violatlo 'r3 ewfelo uld ^pri tenn otth^ greater of on year or th e re{Rfiining on 'L'^i Felease co n addhion any othar term Impased fqf the new offense.

o rf C ¢ If^ Court' nat mqu^y law to-FrOcs'e a p sanctlo Im p6mmunity conaal sanetl ns or nof^Pdso opS^tfpon msr d If I vi e eond co KO cantrnl san an, theiCourt ay ex6f¢Kthe ttrrre fq/whicb•'7'atp'subje4'to Xe s^ap'up ta impose a d{ctlve anatlbn,/df IlflpnSOn e laf up tPr me of whlah I a foun uiNy. ys I huGytfeen ord*Rd'ta pay Zf.M montly,*batlan "arA thet rdure to do ao ,e.9ta re of inunity cdrtfrdlprobetlon. I understand the nature of fhese dtargas and the possible detenees I might have. I em sa5sfled wtih my athmsy's advide and competence. I am not under the Influence of drugs or alcohol. No threefs have been made to me. No pramises have been made exaept as part of this plea agreement stated entinNy as fallows:

I understand by pleading GUILTY, I give up my right toa jury 4ia1 or court trial, where I awld aafivnt and have my attomey questlan witrtesses against me, and where I could use the power af the aburt to rsil wlbumesto testlfy for me. I Imow at tdal 1 would not have to take the witness stand and could not be foned to testtfy agaiiat myself and that no one eouid commem if 1 chose not ta testtfy: 1 understand I wa'rve my dght to heve the praseeutar. prove my guilt beyond a nmonable doubt an every element of eeah charge. I know that the jury•verdid would have ta be unanimous befofa the Jury cold find me gu0ty af, any affense^

I underatand my dght to appeal a ma)dmum sentanae, my oUter IlmMed appe8atedghte and Cmt any appeai must be filed wifhid thtrty (30) days of my sentenae. I understand the qxsequencea of a aonvlctlon upon me i( I am not a U.S. dHm. I enter thid plea voluntargy.

Y OFGUILTY

The Court flnde that tMs day the defendpen eaurt, was advised of all appliwble Consfhutlanal dghts and made a knowing. Intelligent, and valutrtary wa'rver of those rights pursuant to Crim. R. 11. The plea is accepted and is ordered filed. The Court finds the defendant gugty af each affense to whlch defendant has enlensi this plee. A sentenaing hear[ng ls scheduied on at Bond Is

Date

P.C1 Icfic nn1 nrrfarnri e.^. STATE OF OHIO CASE NO. CR03-03-0309

Plaintiff STATE OF OHIO COUNTY OF BUTLER vs. COURT OF COMMON PLEAS

DONALD KETTERER F7LEDLnComm6nPfeosCo^ ENTRY OF FINDINGS BUTLER COUNTy, OHiO Defendant . JAN302ppq uNUY CARPFNItR • . • This 28`" and 29'" dayOS^ES&aFjQd7094, came the Prosecuting Attorney into Court and the defendant personally appearing and with his counsels, Greg Howard and Christopher Pagan, and the defendant having entered a plea of GUILTY, to the charges contained in the Indictment, to wit: • Aggravated Murder with Specifications 1,2,and 3, as to Count One, as charged in the Indictment, which offense is a felony, contrary to Section 2903.03(8), of the Ohio Revised Code. • Aggravated Robbery, as to Count Two, as charged in the Indictment, which offense is a felony of the first degree, contrary to Section 2911.01(A)(3), of the Ohio Revised Code. • Aggravated Burglary, as to Count Three, as charged in the Indictment, which offense is a felony of the first degree, contrary to Section 2911.11(A)111, of the Ohio Revised Code. • Grand Theft of a Motor Vehicle, as to Count Four, as charged in the Indictment, which offense is a felony of the fourth degree, contrary to Section 2913.02(A)(1), of the Ohio Revised Code. • Burglary, as to Count Five, as charged in the Indictment, which offense is a felony of the third degree, contrary to Section 2911.121A)(3), of the Ohio Revised Code. WHEREFORE an examination of witnesses began pursuant to R.C.42945.08 and Criminal Rule 11(C)(3) and after having heard all the testimony adduced by both parties and reviewing the evidence which was admitted, the COURT in writing made its FINDINGS, to wit: OPFICEOF PP03EC'IIfINQATlOFNEY BYlLEN COYNIYl ONIO GUILTY, as to:

NO&XPIPEF PNO9EC'UtINO •rrORNEY

s,xunmy,o n^m^ DONALD KETTERER CR03-03-0309

• Aggravated Murder with Specifications 1,2,and 3, as to Count One, as charged in the Indictment, which offense is a felony, contrary to Section 2903.03(B), of the Ohio Revised Code.

• Aggravated Robbery, as to Count Two, as charged in the Indictment, which offense is a felony of the first degree, contrary to Section 2911.01(A)(3), of the Ohio Revised Code.

• Aggravated Burglary, as to Count Three, as charged in the Indictment, which offense is a felony of the first degree, contrary to Section 2911.111A1(11, of the Ohio Revised Code.

• Grand Theft of a Motor Vehicle, as to Count Four, as charged in the Indictment, which offense is a felony of the fourth degree, contrary to Section 2913.02(A)(1), of the Ohio Revised Code.

• Burglary, as to Count Five, as charged in the Indictment, which offense is a felony of the third degree, contrary to Section 2911.12(A)(3), of the Ohio Revised Code. It is FURTHER ORDERED that the mitigation phase of this matter is set for February 2, 2004 at 10:00 a.m. Pursuant to motion of defense counsel, no pre-sentence investigation report is ordered. APPROVED AS TO FORM: ENTER ROBIN PIPER PROSECUTING ATTORNEY BUTLER COUNTY, OHIO

TRICIA ONEY, J

AE"AGE; JUDG

MATT

OFFlClO/ PBG6EGUnNBRiORNEY RNP/CDH/mml BURERODUNTY.ONI0 January 29, 2004 R061NPIPlR PR06ECURNOA,TTORMEY

WM ^NMim rtPP,imiPaxnn IN THE COMMON PLEAS COURT, BUTLER COUNTY, OHIO

STATE OF OHIO Plaintiff CASE NO.CR2003-03-0309 FII.SD BUTLER C0. COMMON PLEAS COURT vs VF.RDICT FEB 04 2004 Defendant Donald Ketterer CINUr c;AKPrs1TER CLERK Of COIkE'IS

We, the panet of Judges having been empaneled to hear this cause find the aggravating circumstances that the defendant was found guilty of committing, outweighs the mitigating factors presented in this case by proof beyond a reasonable doubt and hereby sentences

Donald Ketterer to death.

1 EXHIBIT7 PRIORITY

STATE OF OHIO C^SE NO. CR 2003-03-0309

Plaintiff STATE OF OHIO u i ;. (, I; ^}COUNTY OF BUTLER vs. ^ ;^OURTOFCOMMONPLEAS ney, P.J.; Sage and Crehan, JJ. DONALD J. KETTERER P R 10 R 1 T Y JUDGMENT OF CONVICTION ENTRY Defendant [Thls is a Anal Appeafable Order.]

This 2n° - 4'^ days of February, 2004, came the ProsecuUng Attorney into Court and the Defendant personally appeadng with his counsel, J. Gregory Howard and Chdstopher J. Pagan, and the charges, plea of guilty, and findings of the three-judge panel being set forth in the previous Entries of the Court filed January 30, 2004, and February 4, 2004, which are expressly included herein by reference. Wherefore, the Defendant being informed that he stands convicted of AGGRAVATED MURDER contrary to R.C. 2903.01(B) with Specification 1 to Count One pursuant to R.C. 2929.04(A)(3), SpeciBcation 2 to Count One pursuant to R.C. 2929.04(A)(7), and Specification 3 to Count One pursuant to R.C. 2929.04(A)(7), as charged in Count One of the Indictment; AGGRAVATED ROBBERY contrary to R.C. 2911.01(A)(3), a felony of the first degree as charged in Count Two of the Indictment; AGGRAVATED BURGLARY contrary to R.C. 2911.11(A)(1), a felony of the first degree as charged in Count Three of the Indictment, GRAND THEFT OF A MOTOR VEHICLE, a felony of the.fourthdegree contrary to R.C. 2913.02(A)(1) as charged in Count Four of the Indictment, and BURGLARY contrary to R.C. 2911.12(A)(3); a felony of the third degree as charged in Count Fve ofthe Indictment, and after having heard all the facts adduced by both parties, the panel of three judges having engaged in a determination of sentence for Count One pursuant to the requirements of R.C. 2929.03(D)(1)-(3) and having unanimously found that tlle aggravating circumstances the Defendant was found guilty of committing outweigh the mitigating factors presented by proof beyond a reasonable doubt, the Courtafforded counsel an opportunity to speak on behalf of the Defendant, and the Court addressed the defendant personally and asked if he wished to make a statement in his own behalf or present any information in mitigation of punishment, and nothing being shown as to why sentence shnutd not now be pronounced, It is ORDERED as to Count One that the Defendant shall suffer death, which sentence is imposed pursuant to R.C. 2929.02(A) and 2929.03-.04. Pursuant to R.C. 2949-21-.22, a Writ for OfqCEOF PROSECVfING NTIDRNEY the execution of the death penalty shall be Issued, directed to the Sheriff, requidng that the Defendant &IILERCOUNTY.ONIO

RO6INpIPER be conveyed to the custody of the Ohio Department of Rehabilitation and Correction and PROSECCIINGkYTONNEY mNwexruTVfamA

w•w•AYG^]^u„ Page 1 of 3 State v Donatd J. Ketterer, Case No. CR2003-03-0309 Judgment of Conviction Entry -- Page 2

that the Defendant be assigned to the appropriate correctional institution and kept until the execudon of his sentence. This death sentence shall be executed by lethal injection in accordance with the provisions of R.C. 2949.22, within the walls of the state correcYGonal institution designated by the Director of the Rehabilitation and Correction as the locatlon for executions, and within an enclosure to be prepared for such purpose that shall exclude public view, under the direction of the Warden of such instituUon or, in his absence, a deputywarden, on the 24" day of June, 2004, ordate otherwise designated by a court In the course of any appellate or postconviction proceedings. It is FURTHER ORDERED as to Count othattheDefendantbesentencedtobeimpnsoned for a stated prison term of nine (9) years and pay a fine of two thousand ($2,000.00) dotlars. It is FURTHER ORDERED as to Count Three that the Defendant be sentenced to be imprisoned for a stated prison term of nine (9) years, which term of impdsonment shall be served conseeutivetywith the term of impdsonment heretofore Imposed as to Count Two, and pay a fine of two thousand ($2,000.00) dollars. It is FURTHER ORDERED as to Count Four that the Defendant be sentenced to be imprisoned for a stated prison term of seventeen (17) months, which term of imprisonment shall be served concurrentiy with the terms of imprisonment heretofore imposed as to Counts Two and Three. The Court has considered the factors under R.C. 2929.13(B) and finds the following: • physical harm to a person; • attempt or threat with a weapon; • previous prison temi served.

For reasons stated on the record, and after consideration of the factors under R.C. 2929.12, the Court also finds that prison is consistent with the purposes of R.C. 2929.11 and that the defendant is not amenable to an available community control sanction. It is FURTHER ORDERED as to Count Five that the Defendant be sentenced to be imprisoned for a stated prtson term of four (4) years, which term of imprisonment shall be sewed consecutivety with the terms otimprisonment heretofore imposed as to Counts Two and Three, and pay a fine of one thousand ($1,000.00) dollars. Wth regard to sentences imposed herein as to Counts Two, Three and Five, pursuant to

OFFICEUF Revised Code Section 2929.14(E), the Court finds for the reasons stated on the record that: PXUSECUIINOATrORNEY BMFBCOUNFY.ONIO _ • Consecutive sentences are necessary to protect the public from future crime or to punish PpBM%PER PBOBECUTIXBATiONNEY the defendant and not disproportionate to the seriousness of the defendant's conduct and the danger the defendant posses to the public. „^^^•y,.^"

Page 2 of 3 State v. Donald J. Ketterer, Case No. CR2003-03-0309 Judgment ofConvfction £ntry -- Page 3

The Court also finds that:

• The harm caused by the defendant was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the defendant's conduct. • The defendant's history of cdminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.

Therefore, the sentences as to Counts Two, Three and Five are to be seived consecutively. Defendant Is hereby further advised of all of his rights pursuant to Criminal Rule 32, including his ri@it to appeal the judgment, his right to appointed counsel at no cost, his right to have court documents provided to him at no cost, and his nght to have a notice of appeal filed on his behalf. Defendant is therefore ORDERED conveyed to the custody of the Ohio Department of Rehabilitation and Correction. Credit for 347 days is granted as of this date of sentencing along with future custody days in the Butler County Jail while Defendant awaits transportation to the appropriate state institution, to be certified by the Sheriff. Defendant is ORDERED to pay all costs of prosecution.

Approved as to Form:

ROBIN N. PIPER (0023205) PROSECUTING ATTORNEY

OPFlCE OF BUTLER COUNTY, OHIO PN09ECUlING ATtONNEY 6UfLENCOUNry,O1C0 CDH/DGFJmmi 2/06/2004 p0lIN PIPER PROSECIRINO AiTONNEY

Page 3 of 3 URIGiirHL

IN THE SUPREME COURT OF OHIO ON COMPUTER-ALM STATE OF OHIO,

Appellee, Case No. 04-0485

-vs-

DONALD KETTERER,

Appellant. This is a death penalty case.

ON APPEAL FROM THE COURT OF COMMON PLEAS OF BUTLER COUNTY CASE NO. CR 2003-03-0309

MERIT BRIEF OF APPELLANT DONALD KETTERER

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defender Counsel of Record

ROBIN N. PIPER TIMOTHY R. PAYNE (0069329) Prosecuting Attorney Assistant State Public Defender

Butler County Prosecutor's Office Office of the Ohio Public Defender Govemment Services Center 8 East Long Street, 11th Floor 315 High Street, 11 th Floor Columbus, Ohio 43215 Hamilton, Ohio 45011 (614) 466-5394 (513) 887-3474 Fax: (614) 644-0703

COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT

EXHIBIT I I PROPOSITION OF LAW NO. 11 ...... 112

Appellant Donald Ketterer's death sentence must be vacated by this court as inappropriate because the evidence in mitigation was not outweighed by the aggravating circumstances. U.S. Const. Amends. VIII, XIV ...... 112

PROPOSITION OF LA W NO. 12 ...... 1 18

During a custodial interrogation, when a suspect indicates that he needs an attomey, the police fail to honor his Fifth Amendment right to remain silent when they do not seek clarification of the suspect's request before continuing with the interrogation. U.S. Const. Amends. V, XIV ...... 118

PROPOSITION LA W No. 13 ...... 121

The execution of a severely mentally ill person is cruel and unusual punishment. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I, § 9 ...... 121

PROPOSITION OF LAW NO. 14 ...... 125

Ohio's death penalty law is unconstitutional. Ohio Rev. Code Ann. §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Donald Ketterer. U.S. Const. Amends. V, VI, VIII, and XIV; Ohio Const. Art. I, §§ 2, 9, 10, and 16. Further, Ohio's death penalty statute violates the United States' obligations under international law ...... 125

PROPOSITION OF LA W N0. 15 ...... 145

Considered together, the cumulative errors set forth in appellant's brief inerit reversal ...... 145

CONCLUSION ...... :...... 146 a CERTIFICATE OF SERVICE ...... 147

w

a

a

lll PROPOSITION OF LA W No. 6 ...... 68

Where the trial court does not merge duplicative aggravating circumstances and duplicative counts in an indictment, the sentences that result are void. Furthermore, the death sentence must be vacated because the weighing process is tainted with the consideration of improper aggravating circumstances. U.S. Const. Amends. VI, VIII, XIV ...... 68

PROPOSITION OF LAW No. 7 ...... 73

A trial court violates a capital defendant's rights to due process and a fair and reliable determination of guilt and punishment when, after the defendant enters a guilty plea, the court does not permit the penalty phase to be presented to a jury; admits gruesome crime-scene and autopsy photographs at the plea and sentencing hearings; fails to hold a hearing on the defendalit's request for new counsel; fails to grant defendant's request for new counsel; denies the release to the defense of grand jury transcripts relating to a key witness for the state; does not limit the state's evidence in a plea hearing to the aggravated murder and aggravating circumstances; limits the mitigation evidence the defense intends to present; and fails to keep a complete record of all court proceedings. U.S. Const. Amends. VI, VIII, XIV ...... 73

PROPOSITION OF LA W No. 8 ...... 96

When the trial court precludes a capital defendant from presenting relevant mitigation evidence, the defendant's rights to a fair sentencing proceeding, individualized sentencing, and due process guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, §§ 9 and 16, of the Ohio Constitution are violated ...... 96

PROPOSITION OF LA W No. 9 ...... 98

The prosecutor's misconduct in making improper arguments relative to mitigation proceedings violated appellant Ketterer's constitutional rights. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I, §§ 9 and 16 ...... 98

PROPOSITION OF LAW No. 10 ...... 106

A capital appellant, challenging his death sentence as disproportionate to cases in which the same or similar crimes were committed, is denied due process and equal protection when the reviewing court limits the pool of cases for comparison to only those in which the death penalty was imposed, thus failing to engage in a meaningful review. U.S. Const. Amends. VIII, XIV ...... 106

„ ii TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... xiv

STATEMENT OF THE CASE ...... 1

STATEMENT OF FACTS ...... 2

PROPOSITION OF LAW No. 1 ...... 10

When defense counsel advise their client to enter guilty pleas to all counts and specifications in a capital indictment without securing an agreement from the state that a life sentence be imposed, and the defendant is thereafter sentenced to death, counsel renders ineffective assistance and deprives the capital defendant of due process of law. U.S. Const. Amends. VI, VIII, XIV ...... 10

PROPOSITION OF LAW No. 2 ...... 16

A jury waiver and guilty plea are not made knowingly, intelligently, and voluntarily when the capital defendant is not adequately informed of his rights and the applicable law, and when he suffers from mental illness and is medicated at the time he waives his rights. Thus, a trial court errs by accepting a plea without first determining whether the capital defendant is competent to relinquish his constitutional rights. U.S. Const. Amends. VI, VIII, XIV ...... 16

PROPOSITION OF LAW No. 3 ...... 29

The finding of guilt ori death specification one to count one was not supported by the evidence. Further, when the trial court considers an invalid aggravating circumstance during the sentencing phase, a death sentence is rendered invalid. U.S. Const. Amends. VI, VIII, XIV ...... 29

PROPOSITION OF LAW NO. 4 ...... 34

Defense counsel provided ineffective assistance of counsel throughout their representation of appellant Ketterer in violation of his constitutional rights. U.S. Const. Amends V, VI, VIII and XIV; Ohio Const. Art. I. §§ 1, 2, 5, 9, 10, 16 and 20 ...... 34

PROPOSITION OF LAW No. 5 ...... 60

The trial court violated appellant Ketterer's constitutional rights by denying defense counsel's pretrial motion to suppress Ketterer's involuntary and coerced statements to the police. U.S. Const. Amends. V, VIII, XIV; Ohio Const. Art. I, §§ 9 and 16 ...... 60

i IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee, Case No. 04-0485

-vs-

DONALD KETTERER,

Appellant. This is a death penalty case.

ON APPEAL FROM THE BUTLER COUNTY COURT OF COMMON PLEAS HAMILTON, OHIO CASE NO. 2003-03-0309

APPELLANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING

DAVID H. BODIKER ROBIN N. PIPER Ohio Public Defender Prosecuting Attorney RUTH L. TKACZ (0061508) DANIEL G. EICHEL Assistant State Public Defender First Assistant Prosecuting Attomey Counsel of Record

MICHAEL A. OSTER, JR. TIMOTHY R. PAYNE (D069329) Assistant Prosecuting Attomey Assistant State Public Defender

Butler County Prosecutor's Office Office of the Ohio Public Defender Govenunent Services Center 8 East Long Street, l lth Floor 315 High Street, 11 th Floor Columbus, Ohio 43215 Hamilton, Ohio 45011 (614) 466-5394 (513) 887-3474 Fax: (614) 644-0703 COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No. 04-0485

Appellee,

-vs- . Appeal taken from Butler County Court of Common Pleas DONALD KETTERER, . Case No. CR 2003-03-0309

Appellant. . This is a death penalty case.

APPELLANT'S MOTION FOR LEAVE TO FILE SUPPLENIENTAL BRIEFING

Appellant Donald Ketterer hereby requests leave of this Court to supplement his merit brief, which was filed on October 29, 2004, to include an issue that was not previously discovered, so that this Court has the opportunity to fully consider all issues in this capital case. A memorandum in support is attached.

Respectfully submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defender Counsel of Record

TIMOTHY R. PAYNE (0069329) Assistant State Public Defender

Office of the Ohio Public Defender 8 E. Long Street, 11"' Floor Columbus, Ohio 43215 (614) 466-5394 COUNSEL FOR APPELLANT

2 MEMORANDUM IN SUPPORT

Appellant Donald Ketterer filed a merit brief with this Court on October 29, 2004. The state filed its brief on February 16, 2005. Ketterer filed a reply brief on March 8, 2005. This

Court has set oral argument for February 7, 2006.

In preparing for oral argument, direct appeal counsel has discovered an issue not previously brought to this Court's attention. The indictment that charged Ketterer with aggravated robbery as an independent comnt and as a death specification was faulty. The state's indictment failed to provide notice to Ketterer that the offense of aggravated robbery requires the infliction, or attempted infliction, of "serious" physical harm. O.R.C. § 2911.01(A)(3). Cf

O.R.C. § 2911.02(A)(2). The March 4, 2003 indictment read only that Ketterer "did inflict, attempt to inflict, or threaten to inflict physical harm on Lawrence Sanders." (Emphasis added.)

Defense counsel failed to move the trial court to dismiss the aggravated robbery charge. Thus,

Ketterer pled guilty to a charge of aggravated robbery and a death specification that do not exist under Ohio law. Ketterer requests the opportunity to develop the issue for this Court's review.

For appellate counsel to completely present, and for this Court to accurately determine, the etrors that occurred during Ketterer's trial proceedings, counsel must be permitted to raise errors in the Merit Brief arising froni the record. Without the ability to raise all relevant issues, counsel cannot provide effective representation to Ketterer on this first appeal as of right. See

State v. Buell, 70 Ohio St.3d 1211, 639 N.E.2d 110 (1994); Evitts v. Lucev, 469 U.S. 387

(1985). Siniply put, more process is due in a capital case because of the extreme finality of the punishment. See Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

In other cases, this Court has sa a sponte ordered supplemental briefing, even long after the initial briefs have been filed. See, e.g., State v. Drummond, Case No. 2004-0586; State v.

3 Yarbroueh, Case No. 2000-2119. This Court also has granted appellants' motions requesting supplemental briefing. See, e.e., State v. Elmore, Case No. 2004-0041; State v. Barton, Case No.

2003-2036; State v. Jackson, Case No. 2002-1604; State v. Cunninghain, Case No. 2002-1377.

If this Court does not allow suppleniental briefing, the indictment issue will likely be raised in an Application for Reopening under Ohio Sup. Ct. Prac. R. XI, § 5, and State v.

Murnahan, 63 Ohio St. 3d 60 (1992). Thus, it would be efficient for this Court to consider the issue on Ketterer's appeal as of right, rather than in a later case filing.

Accordingly, direct appeal counsel respectfully request leave of this Court to file supplemental briefing. Should this Court grant this motion, Appellant Ketterer would supplement his brief with an additional argument under Proposition of Law No. 4 (ineffective assistance of counsel)-new section no. 6-and by adding new Proposition of Law No. 16

(violation of Ketterer's Fifth and Fourteenth Amendment right to due process).

Respectfully submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defender

TIMOTHY R. PAYNE (0069329) Assistant State Public Defender

Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, Ohio 43215-2998 (614) 466-5394 Fax: (614) 644-0703 COUNSEL FOR APPELLANT

4 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing motion for supplemental briefing was forwarded by regular U.S. mail to counsel of record, Daniel G. Eichel, First Assistant Butler

County Prosecuting Attorney, 315 High Street, Hamilton, Ohio 45011, on the Al;^'day of

December, 2005.

Ruth L. Tkacz Counsel for Appellant

5 o^ coc^+^ "; ^^ ^^xr.ettt.e ^ ^ JANa^xr# 2af (05t^a 2006 ^^ LED MARCIA J. MENGEL, CLERK 1Q3 -039 SUPREME COURT OF OHIO State of Ohio Case No. 04-485 V. ENTRY Donald J. Ketterer

This cause is pending before the Court as an appeal from the Court of Common Pleas for Butler County. Upon consideration of appellant's motion for leave to file a supplemental brief,

IT IS ORDERED by the Court that the motion for leave is denied.

(Butler County Court of Appeals; No. CR200 030309)

Ti IOM S . MOYER Chief usttce MOTION, ENTRY, AND CERTIFICATION FOR APPOINTED COUNSEL FEES

in the Common Pleas Court of Butler County Ohio Plaintiff: State of Ohio Current Case No. CR02-11-1895 V. Reference Case No. (if app.) Timothy Engle ^ Capital Offense Case (check if this is a Capital Offense case) Defendant / Party Represented Guardian Ad Litem (check if appointed as GAL) In re: Judge Charles Pater

MOTION FOR APPROVAL OF PAYMENT OF APPOINTED COUNSEL FEES AND EXPENSES The undersigned having been appointed counsel for the party represented moves this Court for an order approving payment of fees and expenses as indicated in the itemized statement herein. I certify that I have received no compensation in connecGon with providing representation in this case olher than that described in this motion or which has been approved by the Court in a previous motioh, nor have any fees and expenses in this motion been duplicated on any other motion. I, or an attorney under my supervision, have performed all legal services itemized in this motion. q Periodic Billing (check if this is a periodic bifl)

As attorney/guardian ad litem of record, I was appointed on November 20, 2002

disposed of on July 8, 2003 I am submitting this applicatfon on

Name Gregory J. Howard Signature Address 723 Dayton Street, Hamilton, OH, 45011 axlD 1 416-72-1950 Address City/State/Zip Reg.No. '-/ 0038510 SUMMARY OF CHARGES, HOURS, EXPENSES, AND BILLING OFFENSEiCHARGEIMATTER ORC/CITY CODE DEGREE DISPOSITION .) Felonious Assault 2903.11 F2 Other 2.) Attempt 2923.02 Fl Other 3.) Rape 2907.02 F1 Other 'List only the three most serious charges bcginning with fhe one of the greatest severiry and continuing in descending order.

IN-COURT PRE•TRIAL ALL OTHER Grand Total OUT-OF-COURT HEARINGS IN-COURT IN-COURT TOTAL GRAND TOTAL Hours 23.90 5.60 1.60 7.20 31.10 From Other Side:

q Flat Fee Hrs:ln 7.20 X Rate $50.00 = S360.00 Tolal Fees $1,316.00 q Min. Fee Hrs:Out 23.90 X Rate $40.00 = $956.00 Expenses $140.45 Total $1,456.45

JUDGMENT ENTRY The Court finds that counsel performed the legal services set forth on the itemized statement on the reverse hereof, and that the fees and oxpenses set fodh on this statement are reasonable, and are in accordance with the resolufion of the Board of County Commissioners of Butler County, Ohio relating to payment of appointed counsel, that all rules and standards of the Ohio Public Defender Commission and State Public Defender have been met. fJ i IT IS THEREFORE ORDERED that counsel fees and expenses be, and are hereby approved, in the amount of It is further ordered that the said amount be, and hereby is, certified by the Co e the C unty Auditor for payme

F-]Extraordinary fees granted (copy ofjournaf entry attached) dg

CERTIFICA7TO The County Auditor, in executing this certification, attests to the accurac^elthe figures containe&h^r,^in. A subsequent audit by the Ohio Public Defender Commission and/or Auditor of the State which reveals unallowable or excessive costs may result in future adjustments against reimbursement or repayment of audit exceptions to the Ohio Public Defender Commission. County Number 9 Warrant Number

County Auditor EXHIBIT 1 20 I 0 RI:IIII) C[LLM r\f:f; 2600 Sternnions Freev:ay Suite 133 Dallas,TR 75207 214.631.8I52 800.752.2773 214.634.3322 Fax

LABOILATORti- I2EI'OI2T - FORENSIC IDENTITY - JIITOCIIONDRIAL ANALYSIS CASE DAT.\: Referring Agency: Ohio Attomey General - BCI Cellmark Case #: FOR 4063 Agency Referencen: 03-109SS Agency Contact: Jim Petro \'ictim's Name: Lawrence Sanders Suspect's \anie: Donald Ketterer Report Date: Febnmrv 1, 2004

1. Evidence Received: Accession 9 Sample Description Receipt DateJ Dlethod of Delivery 4063-001 Reference hairs - Donald Ket[erer 0I/l9/04 - FedEx 4063-002 Reference buccal swabs -Donald Ketterer 4063-003 Hairs froin victim's right hand (425.I, 625.2). paper bag, and debris 4063-004 Hairs from victim's left hand (426.1, K26.2), paperbag, and debris

Results: Mitochondrial DNA (mtDNA) from the buccal swab (4063-002) and hair from the victim's hands (4063-003 and 4063-004) were amplifled and sequenced a[ Hypervariable Regions I and II of the Mitochondrial Control Reoion. Sequence data are presented as variations from the Rrvised Cambrid=e Reference Sequence (rCRS). Bases not speciticallv listed are consistent with rCRS.

IIVI 16024-16365 ^ IG?56 16370 16293 4063-002 T T G 4063-003-1B 16024-163651NC 4063-003-2B 16024-16365INC 4063-004-2B 16024-16365INC rCRS C C A INC: inconclusive

IIVII73-3J0 73 152 153 263 315.1 4063-002 G T A G C 4063-003-IB G C G G C 4063-003-2B G C G 0 C 4063-004-2B G C G G C rCRS A T A A -

Sequences were obtained using standard mtDNA analysis techniques. Procedures used in the analysis of this case adhere to the standards adopted by the DNA Advisory Board on DNA analysis methods.

3. Conclusions: The mtDNA profiles obtained from the hairs from the victim's hands (4063-003 and 4063-004) were not consistent with the mtDNA proCile obtained from the reference swab of Donald Ketterer (4063-002). Donald Ketterer, as well as any individuals matemally related to Donald Ketterer, are excluded as possible contributors of the hairs found in the victim's EXHIBIT I 13 Acnedirrd hy rAe.+merican 5oc.'er.r oi Crime Lobo)erory Directors LahomroryACaedde!ron Board A. Disposition of Gs'idence: All evidence received in this case will be retumed to the submitting anency. Orchid Cellmark has ntaintained complete chain of custody documentation from receipt oFecidence to disposition.

5. Case Reciew: The individuals belowhave reNicwed thc results and conclusions described in this report.

VU (N. qe^--6 Joseph `N'arreq Rick W. Staub, Ph.D. Forensic Supervisor Director of Operations

:Qjv-^' Cassie Johnson Forensic Analvst

S I G\ I: D under uath befure nle tbis Jth daNor February, 2004.

rJi ^d Z!wl^ Notary hublic

(_l F C II I D FOR 1063 CELLMA RK Page2of2 .kue.:nr_ ^r:na na Sccr:I oi Crlme LaDorarory Gneeors. Lboraeop Acartltanon 8oerd Gaoas.'Y - Grrnaettr- nND - ^lanhrneTN ;; :,^r•r TATE OF OHIO CASE NO. CR03-03-0309

Plaintiff STATE OF OHIO COUNTY OF BUTLER s. COURT OF COMMON PLEAS

SUPPLEMENTAL DISCOVERY DONALD KETTERER

Defendant

L Novvcomes the Prosecuting Attorney, by and through the undersigned, and upplementing its previous discovery, states as follows:

WITNESSES' NAMES AND ADDRESSES, Criminal Rule 16(B)(1)(e): The Prosecuting Attorney intends to call the following at trial: Tim Engle, Correctional Reception Center, Orient, Ohio

Respectfully submitted,

CRP^IG_D. HEDRIC (Sup. Ct. # 034416) ASSISTANT PROSECUTING ATTORNEY BUTLER COUNTY, OHIO 315 High Street, 11T" Floor Hamilton, Ohio 45011 Telephone: (513) 887-3474

CERTIFICATE OF SERVICE

This is to oertifythat a copyoftheforegoing was sent byfax and regular U.S. Mail o Greg Howard attorney for defendant, on this 26"' day of January, 20

CRAIG D. HEDRIC

OFFICE OF ASSISTANT PROSECUTING ATTORNEY PROSECUTING ATTORNEY BUTLER COUNTY, OHIO BUTLER COUNTY, OHIO ROBIN PIPEA EXHIBIT PROSECUTING ATTORNEY

GONERNMENT SERNICES CENTER vs H;cn ST. - 111X FLOOR FGeOps s N,wL1ON.OMm1.1t I ly

KETTER C.P. FILE 716 li`I THM CO1\fiVION PLEAS COURT BUTLER COUNTY, OHIO

STATE OF OHIO CASE VO. CR02-1171395

itPlaintiff .

vs. iyfOTiOV .aYD ENTRY TO WIT HDRaW AS COUNSEL TL'vl ENGLE

Defendant . SL'DGE PATER

Now comes, J. Gregory Howard, counsel of record for the defendant, and hereby move this Court for an order allowing him to withdraw as counsel for the defendant.

Counsel represents to the Court that ba,.°ed upon information he has received, a conflict of interest has developed whereby he is unable to continue in his representation of the defendant.

Therefore, counsel would respectfully request permission to withdraw.

A copy of said motion has been forwarded to the defendant.

regory Ho 4JOmey at La Supreme Court #U038510 723 Dayton Street Hatnilton, OH 45011 Tel: 513-868-3663 Fax: 513-868-4848 e-mail: jgregoryhowardCcinci.rr.com J. GREGORY HOWARD ercafrAruw 723 CAYTCN STRE' NRUILiON,ONIO+5Jt1 (5I7) 868-5661 EXHIBIT FAX (5131 868.98W

15000 Eir'CRY

Upon application of counsel and for ggood cause show-n,

IT IS HEREBY ORDERED THAT J. Gregory Howard be allowed to withdraw as counsel of record for the defendant and that new counsel be appointed.

C/,;!.. C 't:^^ PATER, J.

CERTIFICA OF SF-R'v-r(:E

I hereby certin' that a copy of the foregoing Motion was served by ordinary U. S. 11 Mail upon the Prosecuting AGorney for Butler County, Ilth Floor, Government Sere; Center, 31 5 High Street, Hamilton, OH 45011, this 17(h da)^oflune, 2003.

GREGOFYHOWAflD •rOaNEr ai uw 7:3:AYCN STPCCT 1AMIGCN, OHIO Y011 j519) 088.7E67 FA%(SI])8aa•961d EiNTR

Upon application ofcounsel and for good cause shown,

IT IS HEREBY ORDERED THAT J. Gregory Howard be allowed to withdraw as counsel of record for the defendant and that new counsel be appointed.

PATER, J.

CERTTFTCATE OF SERVICE

I hereby certify that a copy of the foregoing hiotion was served by ordinary U. S. ivtail upon the Prosecutina. Attorney for Butler County, 11 th Floor, Govemment Servi Center, 315 High Street, Hamilton, OH 45011, this 170 day-of June, 2003.

i iI

GREGORY HOWARD

ATiCNFG} A} yW

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6. S. Second St., Suite #815 KeyBank Building, Hamiltun, OH 45011 Tel: (513) 844-8440 Fux(513)844-2420

COMPETENCY REPORT

DEFENDANT: Donald Ketterer EXAMINER: Bobbie G. Hopes, Ph.D. DOB: 5 -31 -49 (Age 54) CASE#: CR03-03-03i!g- ,, CHARGES: Aggravated Murder w/Specs. o3O'1 Agg. Robbery, Agg. Burglary, Grand Theft/Motor Vehicle, Burglary EVALUATION: 1-11-04 REPORT: 1-16-04 JUDGE: Patricia Oney COURT: Butler County Common Pleas Court

Donald Ketterer was referred for a psychological evaluation to assist the Court in determining whether the defendant is Competent to Stand Trial, in accord with Section 2945.371(G)(3) of the Ohio Revised Code. He was informed of the purposes and nonconfidential nature of the evaluation, and he agreed to participate in the evaluation. He was interviewed at the Butler County Jail on January 11, 2004, for three hours.

5ources of collateral information included the following; 1. Mr. Ketterer's medical and psychiatric records from the Department of Veterans Affairs, including records from facilities in Tucson, Phoenix (Arizona); Tennessee; Long Beach, Prescott, Brentwood, Los Angeles, San Francisco (California); Oklahorila City (Oklahoma); and Dayton (Ohio). 2. Hamilton Police Department investigative reports regarding this case, 3. Mr. Ketterer's psychiatric records Fort Hamilton Hughes Hospital, November 4, 2002, 4. Georgia Court Competency Tests - Revised, 4. Verbal Subtests of the Wechsler Adult Intelligence Scale - III, 5. Minnesota Multiphasic Personality Inventory -2 (MMPI-2).

COLLATERAL INFORMATION

Mr. Ketterer has an extensive medical and psychiatric history, and he has received outpatient treatment and hospitalizations throughout the country, over a period of several years. He has received treatment from V.A. and private facilities in Tucson, Phoenix (Arizona); Tennessee; Long Beach, Prescott, Brentwood, Los Angeles, San Francisco (California); Ok (Oklahoma); Dayton, Middletown, Hamilton, and Cincinnati (Ohio). Records indicat EXHIBIT CONFIDENTIAL Competency Report Donald Ketterer Page 2 also received treatment at Amarillo VAMC, Northern Arizona, Southern Arizona, and New Mexico, and Lexington. These records follow his outpatient treatment and hospitalizations between 1991 and 2003. His primary psychiatric problems include chronic depression, anxiety, alcohol dependence, polysubstance dependence (alcohol, narcotic medication, cocaine, marijuana, "speed"), spinal injury, pain management, and repeated self-inflicted injuries and suicide attempts (by cutting and ov+srdose). Some reports have noted problems with concentration, "compulsive shoplifting," and certain psychotic symptoms, such as paranoia, auditory hallucinations, and tangential thought processes. He has received various diagnoses, including personality disorders (with antisocial and borderline features), Bipolar Disorder, Major Depression, and Organic Mood Disorder. He has been treated with a variety of different medications, including several different antipsychotic, antidepressant, and anti- anxiety drugs.

In addition to his treatment at many different V.A. facilities, he was also treated at Fort Hamilton Hughes Hospital, where he was admitted on October 31, 2002, after an overdose of Klonopin and amitriptyline (Elavil). He had been sober for 42 months, until five days before this hospital admission. He reported that he had a verbal altercation with his psychiatrist at the Dayton VAMC and an argument with his brother who threw him out. He had problems with his landlord and threw bricks threw his window. He had overdosed on almost a month's worth of medication, then he called 911 after a half hour. He was evaluated on November 4, 2002, to the Intensive Care Unit by psychiatrist, Kenneth Tepe, M.D., who diagnosed him with "Bipolar, Depressed" and "Delirium due to polydrug overdose and alcohol dependency." Lab work dated October 31, 2002, indicated that he also tested positive for cocaine. Most recently, he has been.treated at the Dayton Veterans Administration Medical Center (VAMC), where his psychiatrist is Paul Jeffrey Schwartz, M.D.

BACKGROUNDINFORMATION

The following social history was provided primarily by the defendant, Donald Ketterer.

Family of Origin

Donald Ketterer was born in Hamilton, Ohio, and raised by both biological parents, along with three brothers. He grew up in Hamilton, Ohio, along with three brothers. He was diagnosed and hospitalized for rheumatic fever as a child. His father worked as a construction foreman, and he was physically abusive toward Donald, his two older brothers, and Donald's mother. His father died, when Donald was 13 or 14 years old. Despite being physically abused by his CONFIDENTIAL Competency Report Donald Ketterer Page 3 father, Donald was devastated by his father's death, and he dates all of his psychological problems back to that point in his life. His mother died in a nursing home in 1997 or 1998.

Education

Because Mr. Ketterer had rheumatic fever as a child, he spent a significant amount of time in hospitals, and he was frequently absent from school. When he returned to class, he required special tutors. He said that, for a long time, teachers believed that he was retarded and placed him in special classes. He also required speech therapy, because articulation problems developed as a result of the rheumatic fever. He completed the tenth grade, which was the year that his father died. He attended school for only a few months in the eleventh grade, then he quit school and got a job to help support his family. He has never received a G.E.D.

Employment

He was in the U.S. Army between 1968 and 1971. Records indicate that he was demoted from E-4 to E-1 for punching a corporal, but he regained that rank prior to his honorable discharge. He said he was a house painter, on and off, for approximately 25 years. Records indicate that he had an accident while on his bicycle and injured his spine. 5ince then, he has received a V.A. (non-service-connected) pension. He has lived and worked all over the country, which he explained as, "Just hoping things would be different, I guess, hoping I would meet the right woman."

Marriage

Mr. Ketterer said that he was married in 1973, for six months (records indicate it was for a year). He divorced after he was sent to prison for a robbery. He has no children, and he has had no other long-term relationships. Rather, he described himself as wanting companionship, but instead being a loner and feeling lonely most of his life.

Legal

A 1999 VAMC report indicated that he stabbed someone in self-defense, when he was 18 years old. He said that the judge gave him the choice of incarceration or military service, so he enlisted in the Army. He also reported a 1984 conviction for Theft of money from a rehabilitation facility. CONFIDENTIAL Competency Report Donald Ketterer Page 4

According to a 1997 Phoenix V.A. Medical Center report, Mr. Ketterer was in prison in 1974 for three and one-half years for Armed Robbery and Breaking and Entering. According to a September 1998, Tennessee VAMC report, he reported incarcerations for DUI and Theft. A Dayton VAMC report dated December 22, 1999, indicated that he had been to prison twice and he had a DUI hearing pending in federal court in Cincinnati at that time, due to an incident when he was hospitalized in Tennessee for cutting his wrist while inebriated.

According to a Dayton V.A. psychiatrist, Dr. 5chwartz (February 11, 2003), in 1973, Mr. Ketterer held up pharmacy with a squirt gun and was convicted of armed robbery. In another report (1999 OK), he said that there were no bullets in his gun and that he was stealing speed and sold the other drugs. He said that he was addicted to stimulants at the time. An entry by Dayton V.A. psychiatrist, Dr. Schwartz, indicates that Mr. Ketterer reported that he was convicted of holding up a convenient store with a water pistol and spent three years in prison. He also reported a conviction for shoplifting at a supermarket.

Chemical Abuse

Mr. Ketterer has a history of chronic and severe drug and alcohol dependency, for which he has received treatment for many years. According to his 1997 Phoenix V.A. Medical Center records, he had a "long and heavy use of ETOH (alcohol)." At that time, he had been drinking for 33 years, although he had been sober for several months, prior to that hospitalization. He also had a history of using a variety of street drugs, including marijuana, "speed;" and cocaine, as well as prescription narcotic medication (Tylenol #3 with codeine). He was diagnosed with Depressive Disorder NOS (Not Otherwise Specified) and Polysubstance Abuse, chronic. Reports indicate that he had also been treated at various VAMC and private facilities for alcohol and drug abuse, including facilities in California, Tennessee, Oklahoma, Arizona, and Ohio.

Medical

Donald Ketterer had rheumatic fever as a child, and he was frequently hospitalized until he was twelve years old. He also had a heart murmur. He had surgery for "hernia repair" in 1981 and again in 1995. A Dayton VAMC report dated December 22, 1999, indicated that he had a history that also includes being stabbed and shot.

A report by Dr. Paul Matz, Department of Neurosurgery, San Francisco, California, dated December 17, 1997, indicated that in June 1996, when he was struck by a van, while riding a CONFIDENTIAL Competency Report Donald Ketterer Page 5 bicycle. The report further indicates that, "Since that time, he has had severe pain," as well as muscle weakness. According to his 1997 Phoenix V.A. Medical Center reports, the accident injured his cervical and thoracic spines. He has had chronic pain ever since and has been taking prescribed medication. When the medication did not work very well, he started drinking again. He has received treatment for these problems at several different facilities. At BCJ, he has been taking a"stomach pill," along with Fsychotropic medication.

Mental Health Treatment

Records indicate that Mr. Ketterer has a well-established history of treatment for depression and anxiety throughout the last several years of his life, dated back to at least 1991. He has had many hospital admissions due to severe depression and suicide thoughts or attempts. While some of his suicide gestures have been superficial, others appear to have been serious and life-threatening.

According to Mr. Ketterer, 8ipolar Disorder was first diagnosed six years ago. Several VAMC reports, as well as a more recent report by Dr. Ken Tepe from Fort Hamilton Hughes Hospital, diagnosed him with Bipolar Disorder or Major Depression, and he has a history of being prescribed Lithium and Klonopin, which are medications commonly used in the treatment of severe depressive disorders.

Mr. Ketterer was treated by Dr. Kenneth Tepe at Fort Hamilton Hughes Hospital in November 2003, after he overdosed on almost a month's worth of his psychotropic medication, Klonopin and a sleep medicaticn, Elavil. He was held on a psychiatric unit for a 72- hour hold, then discharged with one week's worth of inedication, until he could return to his V.A. psychiatrist. However, Mr. Ketterer said that he felt "the shame and guilt of relapsing;" so he did not return to his physician, as he should have done. (The offense occurred several weeks after this hospital discharge.)

Mr. Ketterer's self-report and medical records indicate that he has suffered from a severe and chronic depressive disorder throughout most of his life. He reported that happy times were rare in his life. He has had periods when he went without sleep for one or two nights, but that was due to depression following the loss of a relationship, rather than mania. He explained that, when coffee could no longer help him stay awake, he was fatigued and fell asleep. He added, "I was completely out of tears, just sad. I think most of my life has been sad." Since being at BCJ, he has been treated by the jail psychiatrist, Dr. Tepe, and by the forensic nurse, Susan Clority. CONFIDENTIAL Competency Report Donald Ketterer Page 6

PSYCHOLOGICAL TESTING RESULTS

Minnesota Multiphasic Personality Inventory - 2

Donald Ketterer was administered the Minnesota Multiphasic Personality Inventory - 2 (MMPI-2). His test results showed signs of confusion and haphazard responding. Therefore, the results were considered invalid.

Wechsler Adult Intelligence 5cale - III

Donald Ketterer was administered the five of the six Verbal Subtests of the Wechsler Adult Intelligence Scale - III (WAIS-III). He earned a prorated Verbal IQ score of 84 which is within the Low Average range of intellectual functioning and falls at the 14th percentile, as compared with others his age.

MENTAL5TATU5 EXAMINATION

Appearance

Donald Ketterer is a 54-year-old, White man with white and gray hair with a receding hairline, mustache, and beard. He wore dark eyeglasses. He said that he was 5' 11" tall and weighed approximately 210 pounds. He was dressed in a jail uniform, and his hygiene was adequate for the circumstances. He said that he has several tattoos on his arms, but only the tattoos on the backs cf his hands were seen.

Behavior

Mr. Ketterer answered questions and followed instructions, and he was cooperative with this evaluation. His movements were not unusually slow or rapid, and he showed no signs of lethargy or hyperactivity. He maintained intermittent eye contact. His behavior was not highly unusual or bizarre.

Orientation and Memory

His was aware of the time, place, and general circumstances for the present evaluation. His immediate memory was good, as demonstrated by his recall of newly presented information. For example, he repeated six, sometimes seven, numbers forward, which is above average CONFIDENTIAL Competency Report Donald Ketterer Page 7 performance on this task. However, his concentration was impaired. For example, he could not consistently recall even three numbers backward, although four or five numbers backward is average performance on this task. He said that since his incarceration at BCJ, his concentration has been a"3" or "4" on a scale from one to ten, with "10" being good concentration.

Speech and Verbal Ability

He read an Informed Participation Statement aloud, and he showed adequate understanding of the Statement by rephrasing it in his own words and by answering questions about it. He spoke in a normal tone of voice and at a normal pace. However, he is very talkative, and his speech is rambling, digressive, and tangential. His vocabulary, sentence structure, grammar, and use of abstract verbal concepts were within approximately low average range.

Mood/Affect (Observable signs of Emotions)

He described his recent mood as sad, frustrated, worried, and anxious. He said that these feelings have been increasing in intensity as his trial approaches. Significant changes in vegetative signs (e.g., sleep, appetite, energy) are commonly associated with the presence of a mood disorder. Mr. Ketterer said that he has had frequent crying spells, mostly at night when he is alone in his cell. He had been having difficulty sleeping, until recently, when the jail psychiatrist, Dr. Kenneth Tepe, increased one of his medications. Although he initially put on weight following his incarceration at BCJ, he said that he has had decreased appetite through the past month, as his trial approaches, which he attributed to "nerves" He also reported decreased energy and increased social isolation. He sometimes plays poker with other inmates, and he said that his concentration is good enough that he sometimes wins. However, he has not been playing recently, because the games often end up with some of the other inmates arguing. Despite his moderate levels of depression and anxiety, he sometimes displayed an appropriate sense of humor, and he was able to laugh at himself, when he did not know an answer during the intelligence testing.

Perception (Hallucinations)

Previous hospital reports indicate that he has been experiencing auditory hallucinations in the past, and he reported that, when he drinks, voices tell him to cut himself. buring the current evaluation, Mr. Ketterer said, "I've heard voices in my head for years, and I have conversations with my father, even though he beat me and my two oldest brothers." He said CONFIDENTIAL Competency Report Donald Ketterer Page 8 that he also hears the voices of his mother and a friend who died several years ago. The voices are heard inside his head, rather than in the room beside him. These voices never tell him to do anything wrong. However, he said that his father's voice sometimes telling him, "You know the position," or "Bend over and drop your pants," indicating that he was about to get a beating. He does not feel compelled to obey these voices. He said that the first time that he heard a voice was within a year after his father died, when Mr. Ketterer was approximately 14 years old. The last time was a couple nights ago, when he heard his deceased friend. He did not appear to be responding to hallucinations during this evaluation (e.g., conversation, nods, unusual pauses in conversation, glances, etc.).

Thought Content

He has experienced chronic feelings of loneliness, emptiness, and depression, and he has made at least four serious suicide attempts in his lifetime, plus other more superficial and manipulative suicide gestures (primarily to gain admission to psychiatric hospitals). His first suicide attempt was in 1978 or 1979, when he cut his wrist, while living in Prescott, Arizona. He went to the V.A. Hospital, where his cuts were stitched. He said that his last suicide attempt was in November 2002, when he overdosed on many Klonopin and a sleeping pill, along with a bottle of whiskey. He was treated at Fort Hamilton Hughes Hospital on a 72-hour hold, then released. Regarding his other suicide attempts, he said that he was "tired of, I had a few lady friends, but it never lasted.' Loneliness." He said that at other times, he made more superficial cuts, to gain admission to hospitals. He stated, "Sometimes I thought that would be the only way they'd treat me. There probably have been more than four." He said that he has had suicide thoughts since his incarceration, but none within the past couple weeks of more.

He revealed no grossly delusional or illogical thinking during this evaluation, and he reported no bizarre beliefs such as mind control or thought insertion. Although he is not delusional, he exhibited signs of paranoid thinking, such as the tendency to misunderstand and misinterpret other peop(e and events and to real malevolent motives into neutral situations (e.g., some of his comments about his attorney, Greg Howard). He takes offense easily and is suspicious of the motives of others (e.g., suggesting that the judge is "in cahoats" with the prosecutor). To determine the tenacity of these misconceptions or beliefs, an attempt was made to offer an alternative explanation to Mr. Ketterer's belief that Mr. Howard had called him a "beast" (based upon a comment in a newspaper article). The meaning of what Mr. Howard had said was explained to Mr. Ketterer several times, before he began to accept the possibility that his CONF7DENTIAL Competency Report Donald Ketterer Page 9 attorney did not call Mr. Ketterer a "beast," although he continued to treat my explanation with skepticism.

Thought Processes

Mr. Ketterer had difficulty maintaining focus on any one topic, and he frequently went off on rambling tangents. He jumped around a lot, starting on one topic, then quickly ending up talking in excessive detail about something else, without awareness that he had changed topics (referred to as "loose associations"). However, he responded politely and he was not offended by being interrupted and brought back to the topic at hand. When questions were highly structured, rather than open-ended, he did a little better, but even then, he usually had to be interrupted and brought back to the original topic several times. Based upon his response to intelligence test questions and his social history, he has impaired judgment and reasoning ability. (He received his lowest scores on subtests of the intelligence test that relied heavily upon judgment and reasoning ability.) Although he demonstrated adequate factual information regarding court and everyday life, he tended to jump to incorrect conclusions and to make poor decisions, due to his impaired judgment and reasoning ability.

Mental Status Opinion

Donald Ketterer has a well documented, long history of mental illness. Records and his self- report indicate that he has experienced recurrent episodes of depression. Although he has received various diagnoses, most of his diagnoses have been some form of a depressive disorder. Over the past several years, he has more consistently been diagnosed with Bipolar Disorder. His reported symptoms include a history of suicide attempts, depressed mood, and vegetative signs. In nddition, his current symptom also include rambling, digressive, and tangential speech and impaired judgment and reasoning ability. He also reported and exhibited psychotic symptoms, including auditory hallucinations and loose associations.

At the time of this evaluation, he was receiving psychotropic medication, which may have been controlling many symptoms of mental illness, but he continued to exhibit residual symptoms. He also exhibits characterological symptonis that are consistent with a personality disorder with both antisocial and borderline traits. Intellectually, he is estimated to function within the Low Average range, although his functioning in the areas of judgment, reasoning ability, and concentration are below his overall verbal intelligence. He also has a history of chronic and severe alcohol and drug abuse, with long periods of remission, followed by relapses. CONFIDENTIAL Competency Report Donald Ketterer Page 10

UNDERSTANDING OF COURT,OBJECTIVES AND PROCEDURES

Understanding of His Charge

When asked the names of the charges against him, Mr. Ketterer replied, "Murder, Robbery. Why they made it Burglary, I don't know, because Mr. Sanders let me in." He said that he had no idea what was meant by Aggravated Murder, adding, "I thought murder was just murder, when you kill someone, take someone's life." He said that Robbery means "Stealing," but that Robbery is worse than Theft, possibly because it "could be someone got harmed." He said that Burglary means, "Breaking in a place." When directed back to the question, he was asked how Burglary was different from Breaking and Entering. He answered, "Breaking in a place and stealing. I guess the Theft made it Burglary."

He knew that if found guilty, he could face serious penalties. However, he appears to have been relying heavily upon the advice of "jailhouse lawyers" for information and advice about how to handle his case. For example, he stated, "This law changed about 18 or 19 months ago, saying anyone with a mental illness or mental retardation cannot be sentenced to death row, because it's unconstitutional ." He said that he learned that from another inmate, who frequently read law books. When asked about the maximum sentence he could receive, he answered, "Since my lawyers aren't trying to get anything broke down, if I stay charged as I'm charged and I'm found guilty on all counts, from what I'm told by one of the guys in here, I could be facing 45 years to life. You asked me the worse or the least? He told me ... 20 to life."

Understanding of Pleas

He was aware of the pleas he could make, and he offered a basic definition of each. He said that "guilty" means "You're just straight out saying, 'Yes, I did it."' He said that "not guilty" means "You didn't do it," and "Not guilty by reason of insanity" means "Someone's insane at the time of doing the crime (?) Means you're not in your right mind at the time of, you're insane." The NGRI plea was then explained to him in simple, concrete terms. This was explained and rephrased several times, until he said that he understood it. He was eventually able to paraphrase what he was told and to answer questions about it. CONFZDENTIAL Competency Report Donald Ketterer Page 12 including treatment records that were three feet high. However, he complained that Mr. Howard said that he was abusing drugs, diet pills, and alcohol, which made.Mr. Ketterer look bad.

He stated, "I think Chris is good and he's helping me. I tried to fire Howard. I fee! he's right in cahoots with the prosecutor." (Why?) "How about, I been here 11 months, and I think he's spent 15 minutes with me." He said that Pagan had spent approximately 45 minutes with him, but he added, "Just the way I seen him work them detectives, when he was cross-examining them and stuff. I think Mr. Howard spoke maybe 30 minutes, Chris Pagan did the other 12 and one-half hours of it. I'm not saying that makes Mr. Howard a bad attorney. He might be a good attorney, but I can't tell. I've called him several times." Mr. Ketterer also pointed out a portion of the newspaper article that indicated that Greg Howard said something about defendant's filing their own motions was just the "nature of the beast." Misinterpreting what Mr. Howard meant by that, Mr. Ketterer complained, "Why would you want to say something like that about your client, calling him a beast?"

Regarding his pro se motion to plead NGRI, Mr. Ketterer stated, "When you ask your lawyer from day one to plead insanity, and he says, 'Why?' Since then, Sherry Corbett's been killed, and that lady was found NGRI. All he done now is make me look like a copy cat, pleading that way 11 manths later." He also complained that he has been pleading with his attorney to subpoena his two psychiatrists from the Dayton V.A. Medical Center (VAMC), and Mr. Howard continues to refuse to do that, but he has not offered a sufficient explanation for the refusal.

Ability to Work With His Attorney

Mr. Ketterer voiced many complaints about one of his attorneys, Greg Howard, and he insisted that he wants to fire him, although his complaints appears to be primarily the result of his misunderstandings and misinterpretations of things that his attorney has said or done. Mr. Ketterer is hypersensitive to criticism and easily takes offense, when he inaccurately perceives that he has been slighted or disrespected.

Mr. Ketterer was asked a hypothetical question that presumed that his attorneys warned him that he could not win an insanity defense and advised him not to enter an insanity plea. He initially said that he would refuse to accept their advice because "I've got a no win situation anyway." However, after the insanity plea was explained to him in greater detail, he said that he did not know what he would do, if advised not to plead NGRI. He said that he would have CONFIDENTIAL Competency Report Donald Ketterer Page 13 to think about it. He added, "Based on what they've done in the past 11 months; I could not say right now. If I was talking to Chris, if Greg was out of the picture. I think I respect him. I really can't tell. Seems like every time I turn around, Chris is making me look good, then Greg shoots it down. I got one good Iawyer here, and the other one might as well be over there with the prosecutor, and I don't believe Judge Oney can stop me from firing him."

When asked about the possibility of pleading "not guilty;" he said that there might be some evidence to support that plea. He explained that a hair was found in the victim's hand, and it was sent to Texas for analysis, but no one seems to know where it is now. Mr. Ketterer believes that the hair belongs to someone else and could potentially exonerate him.

Mr. Ketterer said that his attorneys have warned him not to talk to others about his case. Although he has consulted with "jailhouse lawyers," he said that he has not discussed the details of the case with them. He only talks to them about what goes on in court and how he should proceed with the case. He does not fully appreciate that these "jailhouse lawyers" cannot give him sound legal advice without knowing the details of the case.

When asked if his attorney would be allowed to repeat somerhing Donald Ketterer told them in private, he said, "I don't think so. I think that's some kind of lawyer and client privilege thing." When asked how he would react, if a witness told a lie about him during court, he answered, "There was several of them already told by the Hamilton homicide detectives. I just sat there."

Ability to Disclose Pertinent Facts About Alleged Offenses

Donald Ketterer provided an adequately detailed account of the events that may have led to his arrest for the alleged offense. Although he frequently jumped from one topic to another, without completing the initial topic, it was not difficult to structure the interview enough to minimize these tangents and to redirect him back to the original topic. He is able to tolerate the stress of a trial, and he is motivated toward defending himself.

Georgia Court Competency Test - Mississippi State Hospital

A person who earns a score of 70 or more out of 100 on the Georgia Court Competency Test - Mississippi State Hospital Version is generally considered Competent to Stand Trial. Donald Ketterer earned a score of 86. However, this test relies heavily upon a defendant's factual CONFIDENTIAL Competency Report Donald Ketterer Page 14

knowledge of the case and of how court works, rather than upon the reasoning ability and judgment that are required to assist his attorney in his defense.

SUMMARY AND OPINION

Donald Ketterer was referred for a psychological evaluation to assist the Court in determining the defendant's current Competency to Stand Trial in accord with Section 2945.371(G)(3) of the Ohio Revised Code. It is my opinion that at the time of this evaluation, Mr. Ketterer was not mentally retarded, but he was suffering frdm a mental illness. Although most of the symptoms of that mental illness were controlled by his medication, he continues to exhibit symptoms that include depressed mood, impaired reasoning and judgment, paranoid thinking, loose associations, auditory hallucinations, rambling and digressive speech, and tangential thought processes.

Despite his mental illness and the symptoms listed above, Mr. Ketterer currently demonstrates an adequate factual understanding of the nature and possible consequences of his charges and of the roles of the major court participants, and he is intellectually capable of learning what he does not already know. However, because of his impaired judgment and reasoning ability, he sometimes jumps to incorrect conclusions on the basis of partial or misinterpreted information and makes poor decisions. As a result, when he makes decisions without the benefit of adequate preparation and advice from his attorneys, his actions can be detrimental to his defense.

While these problems do not render him incapable of working with an attorney in a rational and reasonabie manner, he will present special problems for his attorneys. Working with Mr. Ketterer will require more time and patience than is required with most other defendants. Mr. Ketterer is likely to respond most positively to his legal advice, when he is allowed ample opportunity to explain his own point of view before making a decision, especially if his attorney's advice is different from Mr. Ketterer's initial inclinations. However, because of his mental illness, he is very talkative, and his speech is rambling, digressive, and tangential, which will require that increased time be allotted for these consultations.

In summary, it is my opinion within a reasonable degree of psychological certainty, that Donald Ketterer has an adequate understanding of the nature and objectives of the proceedings against him and of presently assisting in his defense, and he is Competent to Stand Trial. However, in order to maintain his Competency throughout the trial process, his attorneys CONFIDENTIAL Competency Report Donald Ketterer Page 15 should be prepared to make special accommodations for dealing with the symptoms of Mr. Ketterer's current mental condition.

6.a.G.:. G. //?-•r 16

_ _ Ae G. Hopes, Ph.b. Clinical/Forensic Psychologist ORIGINAL ON GUMPUTER - HCG IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee, Case No. 04-0485

-vs-

DONALD KETTERER,

Appellant. This is a death penalty case.

ON APPEAL FROM THE BUTLER COUNTY COURT OF COMMON PLEAS HAMILTON, OHIO CASE NO. 2003-03-0309

APPELLANT'S SECOND MOTION TO SUPPLEMENT THE RECORD ON APPEAL UNDER S. CT. PRAC. R. XIX, § 3(D)

DAVID H. BODIKER ROBIN N. PIPER Ohio Public Defender Prosecuting Attorney RUTH L. TKACZ (0061508) DANIEL G. EICHEL Assistant State Publie Defender First Assistant Prosecuting Attorney Counsel of Record

MICHAEL A. OSTER, JR. TIMOTHY R. PAYNE ( 0069329) Assistant Prosecuting Attorney Assistant State Public Defender

Butler County Prosecutor's Office Office of the Ohio Public Defender Government Services Center 8 East Long Street, l lth Floor 315 High Street, 11th Floor Columbus, Ohio 43215 Hamilton, Ohio 45011 (614) 466-5394 (513) 887-3474 Fax: (614) 644-0703 COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT

MARCIf;,i. lvitivuEL,^. GI- SUPREME CDURT 0F OHIO IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No. 04-0485

Appellee,

-vs- . Appeal taken from Butler County Court of Common Pleas DONALD KETTERER, . Case No. CR 2003-03-0309

Appellant. . This is a death penalty case.

MOTION TO SUPPLEMENT THE RECORD

Appellant Donald Ketterer hereby moves this Court to order the Clerk of the Butler County

Court of Common Pleas to locate, certify, and transmit the witness statements provided to defense

counsel under Ohio R. Crim. P. 16(B)(1)(f) & (g) and the transcript of the grand jury proceedings prepared in this case to this Court. Ohio Rev. Code Ann. § 2929.05 mandates appellate review of the entire record in the direct appeal. Supplementation of the record is therefore necessary to comply with this statutory mandate. Also, appellate counsel cannot fulfill their role as zealous advocates for Mr. Ketterer without the benefit of a complete record. A memorandum is attached.

Respectfully submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defender

r-- ^

TIMOTHY R: AYNE (00 9329) Assistant State Public Defender

COUNSEL FOR APPELLANT

2 MEMORANDUM IN SUPPORT

Appellant Donald Ketterer pled guilty to aggravated murder and was sentenced to death by a three-judge panel of the Butler County Court of Common Pleas. He is currently before this Court on an appeal as of right. Under Article I, § 16, of the Ohio Constitution, he is entitled to a

"complete, full, and unabridged transcript of all proceedings against him so that he may prosecute an effective appeal." State ex. rel. Spirko v. Court of Anpeals Third Appellate Dist.,

27 Ohio St. 3d 13, 18, 501 N.E.2d 625, 629 (1986). The record before this Court is not complete.

WITNESS STATEMENTS

At the hearing on Donald Ketterer's guilty plea, the state presented testimony from Mary

Gabbard. On direct examination, Gabbard testified that Ketterer showed up at Donald

Williams's auto repair shop on East Avenue (where Gabbard had been staying) the day before his arrest with items he wanted to trade for crack-cocaine. (Jan. 28, 2004 Plea Hrg., Vol. 1, pp.

44-45) She said that Ketterer wore bloody gloves, which Ketterer attributed to a fight he had with a "Mexican" who tried to steal his bike. (Id. at 47-48) Gabbard's testimony linked Ketterer to personal property taken from the victim, Lawrence Sanders's, residence and, thus, to the homicide.

The police took a pretrial statement from Gabbard. Upon motion of defense counsel under Ohio R. Crim. P. 16(B)(1)(f) & (g), the state provided a sealed copy of witness statements to the trial court. (Jan. 20, 2004 Pretrial, pp. 73-74) After Gabbard's direct testimony at the plea hearing, the court, along with defense counsel, reviewed a copy of her pretrial statement. The court and defense counsel concluded that the statement was not inconsistent with Gabbard's

3 testimony; therefore, defense counsel did not use the statement in cross-examination. (Jan. 28,

2004 Plea Hrg., Vol. 1, p. 51)

All parties at the plea hearing, as well as the three-judge panel, had access to Gabbard's

police statement. The court's and defense counsel's conclusion that the statement did not

contain conflicting information is subject to review by appellate counsel and this Court.

Gabbard's statement is particularly important, because Ketterer told police that he did not act

alone; that others were involved in the death of Mr. Sanders. (Supp. Hrg., April 3, 2003, Vol. 1,

p. 73)

Moreover, on February 28, 2003, Ketterer told police that Donald Williams drove

Ketterer and "Mary Gadd"t [sic] to Mr. Sanders's residence, where Ketterer and Gabbard

("Gadd") proceeded to look through the residence for items to take. Ketterer hit Sanders with a

skillet. Ketterer went to the garage to get Mr. Sanders's car, leaving Gabbard with Sanders, who,

according to Ketterer, was still breathing. Ketterer and Gabbard returned to East Avenue. Later,

Mr. Sanders was found dead. (State's Answer to Defendant's Request for Discovery, filed

March 12, 2003)

Hairs found in Mr. Sanders's hands were tested. There is a discussion on the record by counsel regarding a possible stipulation to the testing results. (Mitigation Hrg., VoL 2, pp. 229-

30 ) The comments imply that the test results were favorable to Ketterer-i.e., the hairs found in

Sanders's hands were not Ketterer's hairs. (Id.) The hair evidence suggests that someone else may have been involved in the murder of Lawrence Sanders.

' Appellant Ketterer's oral statement was transcribed by either Butler County law enforcement or the prosecutor and was provided to dcfcnse counsel in pretrial discovery as reqtiired under Ohio R. Crim. P. 16(B)(1)(a). The February 28, 2003 statement identifies "Mary Gadd" as an accomplice in the robbery, and presumably the aggravated murder, of Lawrence Sanders. Appellant believes that "Gadd" is Gabbard.

4 A staff member of the Office of the Ohio Public Defender has examined the record before this Court. The pretrial witness statements are not before this Court. Ketterer requests that all statements of Mary Gabbard reviewed by defense counsel at the plea hearing be made part of the record of this case on appeal. Further, Ketterer requests that all pretrial statements of

Donald Williams, who testified at the hearing on the defense's motion to suppress, be made part of the record before this Court.z Williams's statement(s) are equally important because he implicated Ketterer in the crime. At the suppression hearing, Williams said that Ketterer told him that he had robbed and killed someone. (Supp. Hrg., Vol. 1, pp. 292, 296-97) Williams's own possible involvement in the crimes puts his statements at issue.

At the hearing on Ketterer's guilty plea, the state also called Lisa Lawson, a bartender who said that she saw Ketterer at a bar on Febntary 25, 2003, where he dropped a bag of coins on the floor. (Jan. 28, 2004 Plea Hrg., Vol. 1, pp. 29-32) After direct examination, defense counsel reviewed Lawson's pretrial statement and concluded that it showed no inconsistencies with her testimony. (Id. at 37) The state later called Charles Farthing as a witness, a cab drivcr who picked up Ketterer at the bar and drove him to East Avenue. (Id. at 65-68) Defense counsel noted that Farthing's pretrial statement was consistent with his testimony. Counsel did not cross- examine the witness. (Id. at 69) Appellant Ketterer requests that all pretrial witness statements be made part of the record of this appeal.

Z A staiement from Donald Williams as recounted by Detective Steve Rogers in his Affidavit for Search Warrant was provided to defense counsel and used at the hearing on the defense's motion to suppress; the Affidavit is in the record. (See Defendant's Suppression Hearing Exhibit B.) Appellant does not know if that statement was the only statement obtained from Williams. If there are additional statements, Appellant asks that they be made part of the record.

5 GRAND JURY TRANSCRIPT

On April 14, 2003, defense counsel filed a motion with the trial court asking for a copy of the transcript of the grand jury proceedings in Ketterer's case. Counsel also asked that the transcript be prepared, "sealed and held by the court" pending the court's ruling on their motion for access to the transcript. (Pretrial, June 13, 2003, p. 44) The court granted defense counsel's motion to transcribe the grand jury proceedings prior to trial. The court placed the grand jury transcript "under seal" to be held by the trial judge in her office. (Id, at 45) Subsequently, the court denied counsel's motion to be provided with a copy of the transcript. (Entry filed Sept. 18,

2003.)

If Mary Gabbard and Donald Williams testified before the grand jury,3 their testimony could shed light on their veracity and whether they were involved in the robbery and aggravated murder of Lawrence Sanders, as Ketterer's February 28, 2003 oral statement indicates. This information is important because it affects defense counsel's decision to have Ketterer plead guilty rather than exercise his constitutional right to a jury trial. It could raise reasonable doubt as to Ketterer's role in Mr. Sanders's death. Furthermore, lack of consistency among Williams's and Gabbard's police statements, grand jury testimony, and respective suppression hearing and plea hearing testimony is a basis for impeaching the witnesses.

The grand jury transcript is not before this Court. It should be made part of the record for appellate review.

' In an entry filed Sept. 18, 2003 (amending an entry of Aug. 26, 2003), the trial court denied defense counsel's motion to disclose the names of the grand jury witnesses.

6 CONCLUSION

WHEREFORE, Appellant Donald Ketterer requests that this Court order the Clerk of the

Butler County Court of Common Pleas to locate and transmit to this Court the transcripts of all the grand jury proceedings and all pretrial witness statements, including the statements of Mary

Gabbard and Donald Williams. If needed, this Court should order the trial court or the Butler

County Prosecuting Attomey to provide the sealed grand jury transcript and witness statements to the common pleas court clerk for transmittal to this Court.

Respectfully submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Dcfender Counsel of Record

TIMOTHY R. P YNE (0069 29) Assistant State.Public Defender

Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, Ohio 43215-2998 (614) 466-5394 Fax: (614) 644-0703 COUNSEL FOR APPELLANT

7 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing SECOND MOTION TO SUPPLEMENT

THE RECORD was forwarded by regular U.S. mail to counsel to record, Daniel G. Eichel, First

Assistant Butler County Prosecuting Attomey, 315 High Street, Hamilton, Ohio 45011, on the

I`l: day of June, 2005.

Ruth L. Tkacz Counsel for Appellant

8 OMpUTER._^R ^. ® e00e^ ED ON c 4e Aa4 ^^^^e 41 oixtt of 4 JUL 0 5 2005 MARCIA J. MENGEL, CLERK SUPREME COURT OF OHIO State of Ohio Case No. 04-485 V. ENTRY Donald J. Ketterer

This cause is pending before the Court as a death penalty appeal from the Court of Comnion Pleas of Butler County. Upon consideration of appellant's second motion to supplement the record,

IT IS ORDERED by the Court that the motion is granted and that the Clerk of Butler County Court of Common Pleas certify and transmit all pretrial witness statements provided to defense counsel, and the transcript of the grand jury proceedings, within thirty days of the date of this entry.

(Butler County Court of Common Pleas; No. CR2003030309)

f11O1v1AS J. MOYER Chief Justice ON CGMIPUTER-VIC

g4$ ^^1mm$ ^Onrt Qf 04to NOV 09 2005 MARCIA J. MtNGEL, CLERK yUPREME COURT OF OHIO

State of Ohio 1n2-=5U8 Case No. 04-485 V. ENTRY Donald J. Ketterer

This cause is pending before the Court as a death penalty appeal from the Court of Common Pleas of Butler County. Upon consideration of appellant's motions for supplemental briefing and to enforce order to supplement the record,

IT IS ORDERED by the Court that the motions are denied.

IT IS FURTHER ORDERED by the Court, sua sponte, that this Court's previous order of July 5, 2005, be modified as follows: In order to preserve the secrecy of grand jury proceedings, the Clerk of the Butler County Court of Common Pleas need not forward the grand jury transcript to this Court.

(Butler County Court of Common Pleas: No. CR2003030309)

THOMAS J. NMYER Chief Justice ^^^^tER-KMR ^- ® ^ "° ® ^ ^ ^^^ED q kt 0001 ^^MJt (4) .^ rtf Of 04'^J JUL 0 5 2005 MARCIAJ. MENGEL, CLERK SUPREME COURT OF OHIO State of Ohio Case No. 04-485 V. ENTRY Donald J. Ketterer

This cause is pending before the Court as a death penalty appeal from the Court of Common Pleas of Butler County. Upon consideration of appellant's second motion to supplement the record,

IT IS ORDERED by the Court that the motion is granted and that the Clerk of Butler County Court of Common Pleas certify and transmit all pretrial witness statements provided to defense counsel, and the transcript of the grand jury proceedings, within thirty days of the date of this entry.

(Butler County Court of Common Pleas; No. CR2003030309)

THOlvtAS J. MOYER Chief Justice

EXHIBIT 1 9 ► ON CCP^'PCTER-V1C '^qI4,e ^SnVrr.ent.e ^aixrt .af 04i.a NOV 0 9 2005 MARCIA J. MENGEL, CLERX SUPREME COURT OF OHIO

State of Ohio 102 ^ 5 0 $ Case No. 04-485 V. ENTRY Donald J. Ketterer

This cause is pending before the Court as a death penalty appeal from the Court of Common Pleas of Butler County. Upon consideration of appellant's motions for supplemental briefing and to enforce order to supplement the record,

IT IS ORDERED by the Court that the motions are denied.

IT IS FURTHER ORDERED by the Court, sua .sponte, that this Court's previous order of July 5, 2005, be modified as follows: In order to preserve the secrecy of grand jury proceedings, the Clerk of the Butler County Court of Common Pleas need not forward the grand jury transcript to this Court.

(Butler County Court of Common Pleas: No. CR2003030309)

THOMAS J. NZOYER Chief Justice

EXHIBIT I Zo IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee, . Case No. 04-0485

-vs-

DONALD KETTERER,

Appellant. This is a death penalty case.

ON APPEAL FROM THE BUTLER COUNTY COURT OF COMMON PLEAS HAMILTON, OHIO CASE NO. 2003-03-0309

APPELLANT'S MOTION FOR SUPPLEMENTAL BRIEFING

DAVID H. BODIKER ROBIN N. PIPER Ohio Public Defender Prosecuting Attorney RUTH L. TKACZ (0061508) DANIEL G. EICHEL Assistant State Public Defender First Assistant Prosecuting Attomey Counsel of Record

MICHAEL A. OSTER, JR. TIMOTHY R. PAYNE (0069329) Assistant Prosecuting Attomey Assistant State Public Defender

Butler County Prosecutor's Office Office of the Ohio Public Defender Govemment Services Center 8 East Long Street, 11th Floor 315 High Street,ltth Floor Columbus, Ohio 43215 Hamilton, Ohio 45011 (614) 466-5394 (513) 887-3474 Fax: (614) 644-0703 COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT

SEP 0 2 2005

j ftiiA.!:UA., iV°:^:.iVuh.L r I r '.,,. ^iiCr„\t ^... ^i!" r IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No. 04-0485

Appellee,

-vs- . Appeal taken from Butler County Court of Common Pleas DONALD KETTERER, Case No. CR 2003-03-0309

Appellant. . This is a death penalty case.

APPELLANT'S MOTION FOR SUPPLEMENTAL BRIEFING

Appellant Donald Ketterer hereby requests that he be permitted to supplement his merit brief, which was filed on October 29, 2004, to include issues arising from documents that were recently added to the record of this case. A memorandum in support is attached.

Respectfully submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defender_

TIMOTHY R. PAYNE (0069329) Assistant State Public Defender

Office of the Ohio Public Defender 8 E. Long Street, 11`h Floor Columbus, Ohio 43215 (614) 466-5394 COUNSEL FOR APPELLANT

2 MEMORANDUM IN SUPPORT

Appellant Donald Ketterer filed a merit brief with this Court on October 29, 2004, raising issues that arose from the record of his case as it existed at that time. The state filed its brief on

February 16, 2005. Appellant filed a reply brief on March 8, 2005. On June 17, 2005, Appellant filed a motion to supplement the record on appeal with the witness statements provided to defense counsel at trial and the transcript of the grand jury proceedings that had been prepared.

On July 5, 2005, this Court granted Appellant's motion. On August 22, 2005, the Clerk of the

Butler County Court of Common Pleas transmitted the witness statements provided to defense counsel under Ohio R. Crim. P. 16(B)(1)(f) & (g) to this Court. Upon review of those witness statements, counsel for Appellant has identified issues that should be added to this appeal. t

The pretrial police statements of state's witnesses Mary Gabbard and Donald Williams contain inconsistencies-contrary to defense counsel's stipulation regarding Gabbard's witness statement at the plea hearing-that undercut trial counsel's so-called strategy to have Appellant waive his rights and plead guilty rather than proceed to a jury trial. The statements raise questions about the witnesses' veracity, and, thus, Appellant's role in the death of Lawrence

Sanders. Appellant requests the opportunity to develop these issues for this Court's review.

For appellate counsel to completely present, and for this Court to accurately determine, the errors that occurred during Appellant's trial proceedings, counsel must be permitted to raise errors in his Merit Brief arising from the supplemented record. Without the ability to raise such issues, counsel cannot provide effective representation to Appellant on this first appeal as of right. See State v. Buell, 70 Ohio St.3d 1211, 639 N.E.2d 110 (1994); Evitts v. Lucey, 469 U.S.

' At this time, the trial court clerk has not yet certified and transmitted the transcript of the grand jury proceedings to this Court. After the grand jury transcript is supplemented into the rccord of this case, and appellate counsel has had an oppornmity to review it, counsel may again ask this Court for leave to supplement Appellant's merit brief with appellate issues that arise from the grandjury proceedings, if such issues exist.

3 387 (1985). Simply put, more process is due in a capital case due to the extreme finality of the punishment. See Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

Accordingly, counsel requests leave of this Court to file supplemental briefing.

Appellant requests at least 10 days from the date of this Court's order granting Appellant's motion to file his supplemental briefing.

Respectfully submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defende Counsel of Record

TIMOTHY R. PAYNE (0069329) Assistant State Public Defender

Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, Ohio 43215-2998 (614) 466-5394 Fax: (614) 644-0703 COUNSEL FOR APPELLANT

4 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing MOTION FOR SUPPLEMENTAL

BRIEFING was forwarded by regular U.S. mail to counsel of record, Daniel G. Eichel, First

Assistant Butler County Prosecuting Attorney, 315 High Street, Hamilton, Ohio 45011, on the

^ day of September, 2005.

Ruth L. Tkacz Counsel for Appellant

5 "n 4UNIPIiTER-VJC HLED

"f'4$ $lY1tr$mE ^iYnrt jaf (04t.or WoV o9 2oos MARCIA J. MENGEI, CLERK SUPREME COURT OF OHIO

State of Ohio 102 r5os .£ Case No. 04-485 V. ,.. ENTRY Donald J. Ketterer

This cause is pending before the Court as a death penalty appeal from the Court of Common Pleas of Butler County. Upon consideration of appellant's motions for supplemental briefing and to enforce order to supplement the record,

IT IS ORDERED by the Court that the motions are denied.

IT IS FURTHER ORDERED by the Court, sua sponte, that this Court's prcviotu order of July 5, 2005, be modified as follows: In order to pre,serve the secrecy of grand jury proceedings, the Clerk of the Butler County Court of Common Pleas need not forward the grand jury transcript to this Court.

(Butler County Court of Common Pleas; No. CR2003030309)

EXHIBIT I ZZ IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee, . Case No. 04-0485

-vs-

DONALD KETTERER,

Appellant. This is a death penalty case.

ON APPEAL FROM THE BUTLER COUNTY COURT OF COMMON PLEAS HAMILTON, OHIO CASE NO. 2003-03-0309

APPELLANT'S MOTION FOR LEAVF. TO FILE SUPPLEMENTAL BRIEFING TO ADDRESS SENTENCING ISSUES ARISING FROM S"('ATE V. FOSTER

DAVID H. BODIKER ROBIN N. PIPER Ohio Public Defender Prosecuting Attorney RUTH L. TKACZ (0061508) DANIEL G. EICHEL Assistant State Public Defender First Assistant Prosecuting Attomey Counsel of Record

MICHAEL A. OSTER, JR. TIMOTHY R. PAYNE (0069329) Assistant Prosecuting Attorney Assistant State Public Defender

Butler County Prosecutor's Office Office of the Ohio Public Defender Govemnient Services Center 8 East Long Street, l l th Floor 315 High Street, 1 lth Floor Columbus, Ohio 43215 Hamilton, Ohio 45011 (614) 466-5394 (513) 887-3474 Fax: (614) 644-0703 COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT IN TIiE SUPREME COURT OF OHIO

STATE OF OHIO, . Case No. 04-0485

Appellce,

-vs- Appeal taken froni Butler County Court of Common Pleas DONALD KETTERER, Case No. CR 2003-03-0309

Appellant. This is a death penalty case.

APPELLANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING TO ADDRL'SS SENTENCING ISSUES ARISING FROM STATE V. FOSTER

Appellant Donald Ketterer hereby requests leave of this Court to supplenient his merit brief, which was filed on October 29, 2004, to include an issue that was not ripe at the titne his merit btief was filed. This Coutt's recent decision in State v. Foster, Ohio St. 3d 12006 Ohio 856

(Fcb. 27, 2006), contpels the tteed for sttppleniental briefing in this case. A memorandum in support is attaclied.

Respectfully submitted,

DAVID H. BODIKER Ohio Pttblic Defender

, RUTH L. TKACZ (0061508) Assistant State Public Defender Counsel of Record

TIMOTHY R. PAYNE (0069329) Assistant State Public Defender

Office of the Ohio Public Defender 8 E. Long Street, 1 I`h Floor Colunibus, Ohio 43215 (614) 466-5394 COUNSEL FOR APPELLANT

2 MEMORANDUM IN SUPPORT

Appellant Donald Ketterer filed a merit brief with this Cottrt on October 29, 2004. The state filed its brief on February 16, 2005. Ketterer filed a reply brief on March 8, 2005. Oral argument was held on February 7, 2006.

A. Facts.

On March 4, 2003, a Butler Cottnty Grand Jury issued a five-count indictment against

Donald Ketterer, charging him as follows

Count 1: Aggravated Murder while committing or attempting to commit aggravated robbery under R.C. 2903.01(B).

• Specification 1: Ttic offense was comniitted for the purpose of escaping detection, apprehension, trial, or punishment for felonious assault under R.C. 2929.04(A)(3);

• Specification 2: The offense was comnlitted while committing or attempting to conimit aggravated robbery and Ketterer was the principal offender in the aggravated murder tmder R.C. 2929.04(A)(7);

• Speci6cation 3: The offense was cotnmitted while committing or attempting to coniniit aggravated burglary and Ketterer was the principal offender in the aggravated murder under R.C. 2929.04(A)(7).

Count 2: Aggravated Robbery under R.C. 2911.01(A)(3); while committing or attempting to coniniit a theft offense, Ketterer inflicted, attenipted to inflict, or threatened to inflict physical harm.

Count 3: Aggravated Burglary under R.C. 2911.11(A)(1); trespassed in an occupied stntcture by force, stealth, or deception with purpose to commit any criminal offense and did inflict, attempt to inflict, or threaten to inflict physical harm.

Count 4: Grand Theft of a Motor Vehicle under R.C. 2913.02(A)(1).

Count 5: Burglary under R.C. 2911.12(A)(3); trespassed in an occupied structure by force, stealth, or deception with purpose to commtt any criniinal offense.

3 On January 27, 2004, on advice of defense counsel, Ketterer pled guilty to the whole

indictment. After a plea hearing and a mitigation-phase presentation, a three-judge panel, on

Febntary 4, 2004, sentenced Ketterer to death on Count One, aggravated murder. The chart below shows the sentences the trial court imposed for the non-capital felony counts.

Offense Statutory Range Sentence Imposed

Count 2: Agg. Robbery 3, 4, 5, 6, 7, 8, 9, or 10 years; 9 years, $2,000 6ne R.C. 2911.01(A)(3) $20,000 maximum fine F-1 Cottnt 3: Agg. Burglary 3, 4, 5, 6, 7, 8, 9, or 10 years; 9 years, $2,000 fne R.C. 2911.11(A)(1) $20,000 maximum fine Consecutive to Count 2 F-I Count 4: Grand Theft of a 6, 7, 8, 9, 10, 11, 12, 13, 14, 17 months Motor Vehicle 15, 16, 17, or 18 months; Concurrent to Counts 2 & 3 R.C. 2913.02(A)(1) $5,000 niaximum fine F-4 Coutit 5: Burglary 1, 2, 3, 4, or 5 years; $10,000 4 years, $1,000 fine R.C. 2911.12(A)(3) niaximtim fine Consecutive to Counts 2 & 3 F-3

B. Foster conrpels supplemental briefing and requires that Appellant Ketterer's non- capital sentences be reversed and his case remanded to the trial court for re- sentencing.

Since Ketterer's case lias been briefed and argued this Court has decided State v. Foster,

Ohio St. 3d , 2006 Ohio 856 (Feb. 27, 2006). Foster drastically alters Ohio's sentencing scheme. Relevant to Ketterer's appeal is this Court's holding that O.R.C. §§

2929.14(B) and (E)(4) do not comply with Blakely v. Washington, 542 U.S. 296 (2004). The trial court made fact 5ndings under the statutes and then imposed on Ketterer consecutive sentences above the statutory minimum. See Common Pleas Court Feb. 9, 2004 Judgment of

Conviction Entry. Blakelv was decided after Ketterer was sentenced in February 2004.

The sentencing statutes at issue are uncaistitutional. Id. at , 2006 Ohio 856 at ¶ 97.

Thus, Ketterer's sentences on his non-capital felonies are rendered void. Therefore this Court

4 should allow Ketterer to brief the issue as it pertains to his case. The ordinary result for a void sentence is to vacate the sentence and remand for a new sentencing hearing. Id. Cases "pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent witli this opinion." Id. at , 2006 Ohio 856 at ¶ 104. While this Court recognized that such a remand may cause disruption in a case pending on appeal, it "must follow the dictates of the

United States Supreme Court." Id.

In light of Foster, Appellant Ketterer requests leave to supplement his merit brief with a new proposition of law that would address the sentencing of his non-capital felony counts.

Alteniatively, Ketterer reqttests that the direct appeal of his case be stayed and any decision on the propositions of law raised in his merit brief held in abeyance, and his non-capital sentences reversed and remanded to the trial court for resentcncing on Counts 2, 3, 4, and 5 under Foster.[

Respectfitlly submitted,

DAVID H. BODIKER Ohio Public Defender

RUTH L. TKACZ (0061508) Assistant State Public Defender

TIMOTHY R. PAYNE (0069324) Assistant State Public Defender

Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, Ohio 43215-2998 (614) 466-5394 Fax: (614) 644-0703 COUNSEL FOR APPELLANT

' By asking for remand Ketterer does uot waive any constitutional challenges to the reniedy ordered by this Court in Foster. Ketterer incorporates by reference the challenges to that remedy raised in Foster's Motion for Reconsideration and the brief of Amicus Curiae Cuyahooa County Public Defender in Support of Reconsideration for Appellant Foster, Case no. 04-1568, attached as Exhibits A and B to this ntotion. But Ketterer recognizes the remedy ordered by this CotuY and presumes that it will not be altered in response to the Motion for Reconsideration.

5 CERTIFICATE OF SERVICE

I hereby certify that a tme copy of the foregoing motion for supplemental biiefing was forwarded by regular U.S. mail to counsel of record, Daniel G. Eichel, First Assistant Butler

County Prosecuting Attomey, 315 High Street, Hamilton, Ohio 45011, on the 0^day of

April, 2006.

e4"'. A^ -s- . Rutli L. Tkacz Counsel for Appellant

6 IN THE SLIPRENIE COURT OF OHIO

STATE OF 01110, Case No. 04-1568

PlaintifFAppeltee, On Appeal from the Licking County Court of Appeals, Fifth Appellate District ANDREW FOSTER, Court of Appeals De fendant-Appel l ant. Case No. 03CA-95

Expedited Review Requested

APPELLANT ANDREW FOSTER'S MOTION FOR RECONSIDERATION

Robert L. Becker (0010188) David H. Bodiker (0016590) Licking County Prosecutor Ohio Public Defender Kenneth Oswalt* (0037208) Theresa G. Haire* (0020012) Assistant Licking County Prosecutor Assistant State Public Defender *Counsel of Record *Counsel of Record

Adniinistration Building Office of the Ohio Public Defender 20 S. 2nd Street 8 East Long Street - I 1`h Floor Newark, Ohio 43055 Columbus, Ohio 43215 (740) 349-6195; (740) 349-6179 [fax] (614) 466-5394; (614) 752-5167 [fax] hairetenopd. state.oh. us Counsel For Appellee, State Of Ohio Couirsel For,{ppellmu, Andretiv Foster

Jim Petro (0022096) Robert T. Tobik (0029286) Attorney General of Ohio Cuyahoga County Public Defender Douglas R. Cole (0070665) John T. Martin (0020606) State Solicitor Assistant County Public Defender Diane Richards Brey* (0040328) 1200 West Third Street Franklin E. Craivford (0076280) Cleveland, Ohio 44113 Deputy Solicitors (216) 443-7580; (216) 443-3632 [fax]; and, *Counsel of Record 30 East Broad Street, 17'h Floor Columbus, Ohio 43215 (614) 466-8980: (614) 466-5087 [fax] Couursel for Amicus Cnrrae, ;tttornet• Ge reral Jim Pctro

EXHIBIT A $ Ron O'Brien (0017245) Jason i'vIacke(0069870) Franklin County Prosecutor Attomey at Law Steven L. Taylor* (0043876) 400 S. Fifth Street Seth L. Gilbert (0072929) Columbus, Ohio 43215 Assistant Prosecuting Attomeys (614) 464-0011 *Counsel of Record Comtsel for An ici Curiae, Ohio Association of Crind ral Defeifse Lativyers and Cuyakoga 373 South High Street, 13'" Floor Comtty Public Defeirder Columbus, Ohio 43215 (614)462-3555;(614)462-6103[fax] Jeffrey M. Gamso (0043869) Max WohI Civil Liberties Center Comtsel for Amicus Curiae, Ohio Proseciuittg 4506 Chester Avenue Attorneys As•sociatiotr Cleveland, Ohio 44103-3621 (216) 472-2220; (216) 472-2210 [fax]

Cowisel for Atnicus Curiae, American Civil Liberties Utiion of Ohio Fotuidatiwi, Iac. APPELLANT ANDREW FOSTER'S MOTION FOR RECONSIDERATION AND hiEiVIORANDUivi IN SUPPORT

Gurorluction

On February 27, 2006, this Court entered a decision finding portions of R.C. 2929.14,

2929.19 and 2929.41 to be unconstitutional. Sterte v. Foster, Ohio St.3d -, 2006-Ohio-

856, syllabus paragraphs I, 3 and S. To remedy the constitutional violations, the Court severed those portions of the statutes declared to be unconstitutional. Id. at syllabus paragraphs 2, 4 and

6. Additionally, the Court found that R.C. 2953.08(G), providing for appellate review of consecutive sentences, no longer applied. Id. at ¶97.

The Court's remedy, as it pertains to Foster and to the hundreds of cases awaiting sentencing and those already on direct appeal, is unconstitutional because it effectively raises the presumptive sentences for first-time offenders and those convicted of fourth and fifth degree felonies to the statutory maximum. jbliller v. Florida (1987), 482 U.S. 423, 432, 107 S. Ct.

2446, 96 L. Ed. 2d 351. As a result, the Court's remedy violates the Ex Post Facto and Due

Process Clauses of the United States Constitution. The Foster remedy also directly conflicts with the Legislature's intent when it enacted the "truth-in-sentencing" reforms embodied in the severed statutes.

Since the Court did not analyze whether application of the Foster remedy to Foster and other defendants impacted by the decision implicates ex post facto and due process concerns,

Foster moves this Court to reconsider its decision to sever the unconstitutional statutes. S.Ct.

Prac. R. XI, Section 2(4).

I The Booker severance remedv maintained sigidfrcant serrterzciirg eleineiits of the federal sentencing statutes tlrat this Court's severance renzedv conrpletelv rentoved in the correspondi rg Ohio statates.

Foster suggests that the severance remedy adopted by the United States Supreme Court

in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, served as the

blueprint for the remedy ultimately adopted by the Court. Foster at 1190. While the Booker

majority did sever a portion of the sentencing statute, the severance was limited and maintained

the significant parts of the statute designed to effect Congressional intent. As Foster notes, the

United States Supreme Court severed the subsection that required a trial court to impose a

sentence within the applicable guidelines and the subsection setting forth the standards of

review on appeal. Id., n. 97. What is noticeably absent from the Foster opinion, however, is

what remains in the federal sentencing statutes to insure that the intent of the statute was preserved.

Booker still demands that a trial court consider the guideline ranges established for a particular offense category as applied to a particular category of defendant to accomplish the congressional goal of uniformity. Uaited States v. Booker, 543 U.S. at 259-260. Significantly, the United States Supreme Court did not sever 18 U.S.C. §3553(c)(2), which mandates that a trial court state its reasons for departing from the guidelines. Consequently, althouglP the four separate standards of appellate review were severed, the statute as amended allows appellate review by either party to determine the reasonableness of the trial court's sentence. United

States v. Booker, 543 U.S. at 260, 261.

By contrast, the severance employed in Foster cuts a wide swath through the sentencing statutes, eliminating presumptions, save those favorin, incarceration, eliminating a trial court's duty to explain reasons for departing from the guidelines, thus effectively eliminating the ability of an appellate court to effectively review a sentence, and essentially eliminating any real

chance of accomplishing the Legislature's goal of establishing uniformity and proportionality in

Ohio's criminal sentencing. Because the Foster remedy will substantially disadvantage the

hundreds of defendants affected by the decision, the remedy violates the Ex Post Facto and Due

Process Clauses of the United States Constitution.

The Due Process Clause of the United States Coastitutiote bars retroactive application of the severance reinedy crdopterl in State v. Fos•ter.

Severance operates as an ex post facto law.

It is well-established that due process prohibits retroactive application of any judicial

construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue. Boaie v. 04, of Columbia (1964), 378

U.S. 347, 354, 12 L. Ed. 2d 894, 84 S. Ct. 1697. As this Court has recognized, "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law ***," and thus violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. State v. Garner, 74 Ohio St.3d 49,

57, 656 N.E.2d 623, quoting Boaie v. Cokmtbia, 378 U.S. at 353 (intemal citations omitted).

Accordingly, although the constitutional prohibition against ex post facto laws is applicable only to legislative enactments, judicial enlargement of a statute implicates the same concerrts expressed by the Ex Post Facto Clause. State v. Garrter, 74 Ohio St. 3d at 57. The

Clause provides simply that "no State shall ... pass any ... ex post facto Law." Art. 1, § 10.

The scope of the Ex Post Facto Clause's protection includes "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull. 3 U.S. 386. 3 Dallas 3S6, 390, 1 L. Ed. 648, 3 Dall. 386 (1798)

(seriatini opinion of Chase, J.).

3 Based upon these basic constitutional concems, the United States Supreme Court

vacated a state prisoner's sentence because a state's revised sentencing guidelines, as applied to

a defendant whose crimes occurred before the revisions took effect, violated the Ex Post Facto

Clause and thus violated the prisoner's right to due process. iL/iller v. Florida (1987), 482 U.S.

423, 432, 107 S. Ct. 2446, 96 L. Ed. 2d 351. In Miller, revisions to Florida's state's sentencing

guidelines after the defendant's offense transpired raised the "presumptive" sentence that the defendant could receive when he was finally sentenced. Florida's revision of its sentencing guidelines fell within the ex post facto prohibition because it met two critical elements: first, the law was retrospective, applying to events occurring before its enactment; and second, it disadvantaged the offender affected by it. Miller at 430. A law is retrospective if it "changes the legal consequences of acts completed before its effective date." Miller at 431, citing

1Vcaver v. Graham (1981), 450 U.S. 24, 31, 101 S. Ct. 960, 67 L. Ed. 2d 17. As to the second element, the Court observed that it is "axiomatic that for a law to be e.r post Jacto it must be more onerous than the prior law." Id. (intemal citation omitted).

This Court's severance of the unconstitutional statutes will operate retrospectively and disadvantage the hundreds of defendants awaiting sentencing or on direct appeal. Foster's situation perfectly illustrates why the Court's remedy will subject him to an ex post facto change in the law.

Foster pled no contest to all twenty-six counts contained within his indictment. All counts were fourth and fifth degree felonies except for one second degree felony which was premised upon all the other counts in the indictment. Foster had no record. His crimes were nonviolent property offenses. Under the sentencing statutes in effect at his sentencing. there

4 was a presumption that he would be sentenced to minimum concurrent sentences, or two years.

R.C. 2929.14(A)-(E).

By severing the statute, this Court has eliminated presumptive sentences and increased

the potential total sentence to beyond the nine years imposed by the trial court. Indeed,

although the state has defended the trial judge's sentence as reasonable, based upon all the

factors known to the trial judge at the time of sentencing, the state is now free to ask for higher sentences and the trial court is apparently free to sentence Foster to more time. Foster at 11105.

This "remedy" allows the Court to effect the very result that it deemed to be a unconstitutional violation of Blakely v. 6Yashingtar (2004), 530 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

In addition, as in Afiller, severance presents another disadvantage by virtue of its application to Foster. By eliminating the presumptive sentencing levels contained within the severed statutes and the judicial fact-finding that attended sentences exceeding the presumptive range, the Court has effectively foreclosed appellate review. In Miller, the Supreme Court found that eliminating appellate review was a second reason to find that the defendant had been

"substantially disadvantaged" by the retrospective application of the revised guidelines to his crime. tifiller at 433.

The retroactive application of sentencing statutes, as amended by this Court, changes the punishment Foster may stiffer and compromises his ability to appeal his sentence. Accordingly, the Court's remedy as applied to Foster will violate the Ex Post Facto Clause and thereby deny

Foster due process.

2. The Court's remedy was unforeseeable and indefensible in light of the law expressed by this Court prior to Foster.

In Boure v. Sourh Caroli ra, the United States Supreme Court observed that due process demands that a defendant ha%e fair warning of what constitutei a crime. Id. at 350. Fair

5 waming is denied, however, when there is an unforeseeable and retroactive judicial expansion

of statutory language that appears narrow and precise on its face. Id. at 352. Consequently, the

Court determined that if a judicial construction of a criminal statute is "'unexpected and

indefensible by reference to the law which had been expressed prior to the conduct in issue,'

[the construction] must not be given retroactive effect." Id. at 354 (citation omitted).

When Foster entered his plea in Licking County Common Pleas Court, he could not

have foreseen that this Court would sever the portions of Senate Bill 2 that replaced a trial

court's "guided discretion" with unfettered, unreviewable discretion. Foster at 1[89. Even after

Blakely v. 6Vashi igtori, (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, defendants

could not have foreseen severance, given this Court's instruction in State es rel. Nfasort v.

Grin, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644, at 1117, that if the statutes were

found to be unconstitutional (after Blakelv), a trial court "should apply the pertinent sentencing statutes without any enhancement provisions found to be unconstitutional[.]"

The Court's severance remedy is also indefensible by reference to prior law goveming the sentencing scheme. The enabling statute, R.C. 181.24, clearly intended for the statutes enacted to provide uniformity, proportionality, "with increased penalties for offenses based upon the seriousness of the offense and the criminal history of the offender," with- judicial discretion to be limited by those goals. R.C. 181.24(B)(l)-(3). Those goals were embodied in the statutes ultimately enacted and subsequently reviewed by this Court. The Court expressly stated that the purposes and intent of Senate Bill 2 was to reserve consecutive sentences for the worst offenses and offenders. State r. Comer, 99 Ohio St. 3d 463, 2003 Ohio 4165, 793 N.E.2d

473, at ¶21, citin, State r. Bola rd (2002), 147 Ohio App. 3d t51, 162, 2002-Ohio-1163, 768

N.E.2d 1250. "Consistency and proportionality are hallmarks of the new sentencing law." Id.,

6 citing Griffin & Katz, Sentencing Consistency: Basic Principles Instead of Numerical Grids:

The Ohio Plan (2002), 53 Case W.Res,L.Rev. 1, 12. And while consecutive sentences were

permitted, imposition of consecutive sentences required that "findings and reasons must be

articulated by the trial court so an appellate court can conduct a meaningful review of the

sentencing decision." Griffin & Katz, Ohio Felony Sentencing Law, at 458-459, Section 1.21.

These laudable goals are now history, replaced by a judicially enacted scheme that

requires findings only when a trial court seeks to give a "downward departure" pursuant to R.C.

2929.20(H). State v. A9atlris, _ Ohio St.3d _, 2006-Ohio-855, syllabus, paragraph 1. Given

the Court's prior pronouncements on the laudable goals inherent in Senate Bill 2, the severance remedy was indefensible by reference to prior law.

Conclusion

Foster's severance remedy eliminates guided discretion, eliminates effective appellate review, and encourages increased sentences to those defendants with the temerity to demand a new hearing pursuant to Foster. Retroactive application of the remedy to Foster and all other defendants whose sentences may be revisited pursuant to this Court's decision violates the

Constitution's prohibition against ex post facto laws and thus violates due process.

Accordingly, Appellant Andrew Foster moves the Court to reconsider the application of the remedy imposed in State v. Foster to him at his resentencing.

Respectfully submitted,

DAVID H. BODIKER #0016590 Ohio Public Defender

TFIERESA G. FIAIRE r0020012 Assistant State Public Defender COUNSEL OF RECORD

7 Office of the Ohio Public Defender 8 East Long Street - I 1'h Floor Columbus, Ohio 43215 (614)466-5394 (614) 752-5167 - FAX hairet_ t ond.state.oh.us

COUNSEL FOR APPELLANT

CERTIFICATION OF SERVICE

This is to certify that a copy of the foregoing APPELLANT ANDREW FOSTER'S

NIOTION FOR RECONSIDERATION was forwarded by regular U.S. Mail, postage prepaid to the office of Kenneth Oswalt, Assistant Licking County Prosecutor, Administration Building,

20 S. 2°d Street, Newark, Ohio 43055; Diane Richards Brey, Deputy Solicitor, Ohio Attorney

General's Office, 30 East Broad Street, 17`h Floor, Columbus, Ohio 43215; Steven L. Taylor,

Franklin County Assistant Prosecutor, 373 South High Street, 13'h Floor, Columbus, Ohio

43215; John T. Martin, Cuyahoga County Assistant Public Defender, 1200 West Third Street,

Cleveland, Ohio 44113; Jason Macke, Attomey at Law, 400 S. Fifth Street, Columbus, Ohio

43215; Jeffrey M. Gamso, Esq., Max Wohl Civil Liberties Center, 4506 Chester Avenue,

Cleveland, Ohio 44103 this 8th day of March, 2006.

TFIERESA G. HAIRE #0020012 Assistant State Public Defender COUNSEL OF RECORD

COUNSEL FOR APPELLANT

8 IN THE SUPREME COURT OF OHIO Case No. 04-1568

STATE OF OHIO,

Plaintiff EXPEDITED CONSIDERATION -vs- REQUESTED

ANDREW FOSTER, et al.

Defendants

BRIEF OF AMICUS CURIAE CUYAHOGA COUNTY PUBLIC DEFENDER IN SUPPORT OF MOTION FOR RECONSIDERATION OF APPELLANT FOSTER

DAVID H. BODIKER ROBERT L. BECKER State Public Defender Licking County Prosecutor

THERESA G. HAIRE KENNETH OS WALT Assistant State Public Defender Assistant Licking County Prosecutor (Counsel of Record) (Counsel of Record)

8 East Long St., I 1'h Floor Administration Building Columbus, Ohio 43215 20 S. 2"d Street (614) 466-5394 Newark, Ohio 43055 FAX (614) 752-51667 (740)349-6195 FAX (740)349-6170

COUNSEL FOR APPELLEE JASON QUINONES: COUNSEL FOR APPELLANT/APPELLEE MICHAEL T. FISHER STATE OF OHIO: WILLIAM D. MASON 55 Public Square, Suite 1010 Cuyahoga County Prosecuting Attomey Cleveland, OH 44113 LISA REITZ WILLIAMSON JON W. OEBKER COLNSEL FOR APPELLANT ROBERT Assistant Prosecuting Attomeys ADAMS: R. PAUL LAPLANTE The Justice Center-9'h Floor Lake County Public Defender 1200 Ontario Street Cleveland, OH 44113 VANESSA R. CLAPP Assistant Public Defender

EXHIBIT ^ B 8 s ^--- CHARLES E. COLSON 125 East Erie St. Lake County Prosecuting Attorney Painesville, OH 44077 ALANA R. REZAEE Assistant Prosecuting Attomey COUNSEL FOR APPELLANT JEANNETT HORN: 105 Main Street DAVID H. BODIKER P.O. Box 490 State Public Defender Painesville, OH 44077

CHARLES B. CLOVIS Assistant State Public Defender COUNSEL FOR AMICUS CURIAE OHIO PROSECUTING ATTORNEYS 8 East Long St., 11'h Floor ASSOCIATION: Columbus, Ohio 43215 RON O'BRIEN Franklin County Prosecuting Attomey COUNSEL FOR AMICUS CURIAE CUYAHOGA COUNTY PUBLIC DEFENDER: STEVEN L. TAYLOR SETH L. GILBERT ROBERT L. TOBIK, ESQ. Assistant Prosecuting Attomeys Cuyahoga County Public Defender 373 South Iligh Street - 13'h Floor JOFIN T. MARTIN Columbus OFI 43215 CULLEN SWEENEY Assistant Public Defenders COUNSEL FOR AMICUS CURIAE, ATTORNEY GENERAL JIM PETRO: 1200 West Third Street Cleveland Ohio 44113 JIM PETRO 216-443-7583 Attomey General

DOUGLAS R. COLE COUNSEL FOR AMICUS CURIAE OHIO State Solicitor ASSOCIATION OF CRIMINAL DEFENSE LAWYERS DIANE RICHARDS BREY Deputy Solicitor JASON MACKE 400 South 5'h Street Office of the Attomey General of Ohio Columbus OH 43215 30 East Broad, 17'h Floor Columbus, Ohio 43215 COUNSEL FOR ANIICUS CURIAE AMERICAN CIVIL LIBERTIES UNION JEFFREY GAMSO Max Wohl Civil Liberties Center 4506 Chester Avenue Cleveland OII 44103-3621 IN THE SUPREME COURT OF OHIO Case No. 04-1568

STATE OF OHIO

Appellee EXPEDITED -vs- CONSIDERATION REQUESTED ANDREW FOSTER, et al.

Appellant

BRIEF OF AMICUS CURIAE CUYAHOGA COUNTY PUBLIC DEFENDER IN SUPPORT OF bIOTION FOR RECONSIDERATION OF APPELLANT FOSTER

Comes now, Amicus Curiae Cuyahoga County Public Defender, in support of Andrew

Foster's motion for reconsideration pursuant to S.Ct. R. XI, Sec. 2, and requests that this Honorable

Court reconsider the retroactive application of the remedy established in its February 27, 2006 decision, for the reasons set forth in the accompanying memorandum of law.

Respectfully submitted,

JOHN T. MARTIN, ESQ. (0020606) -

CULLEN SWEENEY, ESQ. (0077187)

Assistant Public Defenders, Cuyahoga County Ohio 1200 West Third Street, Suite 100 Cleveland, Ohio 44113 Counsel for Amicus Curiae Cuyahoga County Public Defender MEMORANDUM IN SUPPORT OF RECON'SIDER4TIOY

Summary of Argument

The retroactive application of this case's remedy to persons who committed their criminal

offenses prior to the release of the Opinion,1 violates clearly established United States Supreme

Court precedent regarding ex post facto and due process. Before the Opinion forms the basis for

hundreds of decisions in this reaard, this Court must reconsider. The retroactive application of

this Court's remedy, discussed in the Opinion at ¶¶ 103-106, is the only aspect of this Court's

Opinion for which your amicus now prays for reconsideration.

Reconsideration at this time, while a remedy that this Court infrequently applies, is the only remedy that will prevent an onslaught of litigation, beginning at the trial court level when resentencings occur, through the courts of appeals, back to this Court, and then, if necessary, to federal venues. Indeed, every case that now cites to Blczkely v. 6Yashinglon (2004), 542 U.S. 296, will soon cite to Miller v. Florida (1987), 482 U.S. 423, for the proposition that retroactive application of this Court's remedy will violate the ex post facto considerations that apply to hundreds of criminal defendants in Ohio via the Due Process Clause.

Your amicus' argttment against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the

'The term "Opinion" is used throu,hout this memorandum when citing to this Court's opinion in the instant case, Stute v_ Foster _ Ohio St.3d _, 2006-Ohio-356.

1 statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely.

In its opinion in the instant case at "Part V. Remedy," 4,11 84-102, this Court has eliminated the

presuniptive sentence, thus relieving the trial judge of having to make any findings whatsoever

before imposing a sentence at any point in the statutory range and before ordering terms of

imprisonment to be served consecutively to one another.

Applied prospectively, this Court's employment of severance to save the statutory

scheme from an unconstitutional interpretation, as a general matter,2 does not violate ex post

facto and the due process considerations attendant thereto. However, when applied to those

persons whose crimes were already committed, this Court's remedy unconstitutionally changes

the rules to the defendant's detriment by stripping defendants of the protections of the

presumptions discussed above. Just as the General Assembly could not amend the statutory

scheme in this manner and legislate that the new scheme apply to those whose crimes have

already been committed, this Court is precluded from doing the same.

Although your amicus is writing in support of Mr. Foster's motion for reconsideration, the arguments concerning ex post facto apply to all named parties in this consolidated opinion. Your aniicus notes that it is not addressing the specifics of this Court's remedy, even prospectively, regarding the iVtajor Drug Offender or Repeat Violent Offender provisions, Opinion at ¶ 99, which do not apply to Messrs. Foster and Quinones but do apply to defendants Hom and Adams. respectively.

2 ARGUMENT

A. The Need for [nimediate Reconsideration

As this Court recognizes, the instant case affects hundreds of defendants who now must

be resentenced, and also applies to all future sentencing. See, Opinion at!j¶ 29, 100, 103-06. This

Court, in applying its remedy to all persons whose cases are currently on direct appeal, expressed

concem about the burden being placed on lower courts, but concluded that the Sixth Amendment

required resentencings. Opinion, at!jj 103-04.

If Mr. Foster and your amicus are correct that this Court's remedy cannot be applied to

these resentencings, then the resentencings will not accomplish anything and will exacerbate the burden on lower courts. Every resentencing will be accompanied by a defense motion that only minimum and concurrent terms of imprisonment be imposed because this Court's decision in the instant case has established that sentences that go beyond minimum and concurrent terms on the basis ofjudicial findings violate Blakely. The defense motion will then argue that application of the remedy set forth in the instant case cannot be applied to a defendant whose crimes were committed prior to the release of the instant case, for the reasons set forth below. Defendants will be asking lower courts to sever the portion of this Court's opinion that has found the statutory scheme to be unconstitutional from the portion of this Court's opinion that sets foith retroactive application of this Court's severance remedy. Moreover, because lower courts are bound by principles of stare decisis to follow the United States Supreme Court's precedent on the federal constitutional issues raised below, and because this Court has not explicitly addressed these issues in its opinion, trial courts and appellate courts may well conclude that this Court's remedy cannot apply retroactively.

3 The end result will be a logjam of litigation akin to that which the opinion in the instant

case intends to break. Principles ofjudicial economy dictate that this Court act now, before the

problem is exacerbated.

B. This Court's Opinion Holds That Its Reniedy is Retroactive

This Court correctly held that sentences that exceed minimum and concurrent terms of

imprisonment violated Blakely. Opinion at Jj¶ 61, 64, 67. This Court also correctly recognized

that the remedy to be applied lay in one of three directions: jury determination of the required

sentencing findings, imposition of minimum and concurrent terms, or severing the requirement

of findings from the statutory scheme. Opinion at !j 85. This Court chose the last option,

accepting the invitation of the State of Ohio in Foster and the State's amici to employ severance

pursuant to R.C. 1.50. Opinion at 111192, 96-97. In so doing this Court overruled the remedy it

prescribed in State ex rel. rLlasoar v. GriJ^n (2004), 104 Ohio St.3d 279, 282 ( "Moreover, insofar as Judge Griffin determined that Blakely might render these statutes unconstitutional, he should apply the pertinent sentencing statutes without any enhancement provisions found to be unconstitutional by him.").

As a matter of due process and ex post facto, your amicus does not challenge herein the

Court's new remedy when applied to persons who committed their offenses since the Opinion was announced. However, this Court applied this remedy not just prospectively but to all cases in which sentencings will occur in the future, going so far as to hold that sentences already imposed and currently on appeal would have to be resentenced under the newly-severed provisions.

Opinion at!j¶ 103-106. In this regard, this Court did not address the principles set forth below.

4 C. The Due Process Clause Precludes the Retroactive Application of This Court's Remedy in the Instant Case.

Although this Court's remedial decision can, as a constitutional matter, be applied to

cases in which the criminal conduct occurred after the Opinion, this Court is precluded by the

Due Process Clause from applying it to defendants whose criminal conduct pre-dated the release

of the Opinion.

Basic Principles of Ex Post Facto and Due Process

The Ex Post Facto Clause of Article I, Section 10 of the United States Constitution

prohibits, among other things, any legislation that "changes the punishment, and inflicts greater

punishnient, than the law annexed to the crime, when committed." Miller, 482 U.S. at 429,

quoting Colder v. & ll (1798), 3 Dall. 386, 390. The Ex Post Facto clause "looks to the

stmt(lard ofptufishntent proscribed by the statute, rather than to the sentence actually imposed."

Lindsey v. {Ycrslungtoir (1937), 301 U.S. 397, 401. Regardless of whether the change

"technically" increased the punishment for the crime, the legislative enactment falls within the er post facto prohibition if it: 1) is retrospective; and 2) disadvantages the offender affected by it.

Miller, 482 U.S. at 430-32.

Although the Ex Post Facto Clause "does not of its own force apply to the Judicial

Branch of govemment," the United States Supreme Court has recognized "that limitations on e.r post facto judicial decisionmaking are inherent in the notion of due process." Rogers v.

Tenriessee (2001), 532 U.S. 451, 456. In Bouie v. Sou1h Carolina (1964), 378 U.S. 347, 356, the

United States Supreme Court held that the South Carolina Supreme Court's retroactive application of its construction of the State's criminal trespass statute violated due process. The

Court explained that "an unforeseeable judicial enlargement of criminal statute, applied retroactively. operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution

5 forbids." Id. at 353. Given the similar impact ofjudicial decisionmaking and legislation on the

rights of criminal defendants, the fundamental principle that "the required criminal law must

have existed when the conduct in issue occurred" must be applied to restrict the retroactive

application of both. Id. at 354. In short, the Court explained:

If a state legislature is barred by the Ex Post Facto Clause from passing [a retroactive law], it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result byjudicial construction.

Id. at 353. The Supreme Court emphasized that the petitioners lacked fair warning of the new

interpretation afforded the criminal trespass statute as it was "clearly at variance with the statutory language" and it did not have "the slightest support in prior South Carolina decisions."

Id. at 356. Although Bouie involved a judicial attempt to expand the reach of a criminal statute, subsequent courts have held that the due process clause likewise proscribes "judicial enforced changes in interpretations of the law that unforeseeably expand the punishment accompanying a conviction beyond that which an actor could have anticipated at the time of committing a criminal act" Dale, 878 F.2d at 934; see also Devine v. Neiv iLlerico Dcp't of Corrections (C.A.

10 1989), 866 F.2d 339, 344-45.

2. Retroactive Application of this Court's Remedy Violates the Basic Principles of Ex Post Facto and Due Process

As there can be no dispute that the application of the remedial portion of Foster to criminal defendants' resentencing hearings is retroactive within the meaning of the Ex Post Facto and Due Process Clauses, the ensuing discussion focuses on hoxv the remedy constitutes a marked departure from Ohio's prior sentencing law operating to the disadvantage of criminal defendants,

6 a. Comparison of Pre- mrd Post-Foster Se ite iciiig Regimes

As this Court recognized, prior to the Opinion, criminal defendants enjoyed a

presumption of a minimum and concurrent sentence pursuant to R.C. 2929.14(B), 2929.14(C),

and R.C. 2929.14(E)(2). See, e.g., Opinion, at j11 60, 64, 97, 102. The trial court could only

impose "more than minimum," maximum, and/or consecutive sentences if it found certain

factors had been established. R.C. 2929.14(B), 2929.14(C), R.C. 2929.14(E)(2). Moreover,

because, prior to the release of the decision in the instant case, Ohio's sentencing law

"provide[d] precise guidance for criminal sentencing within clearly defined constraints" and

required trial courts to follow "an articulated process when determining a sentence," it

"accord[ed] meaningful review of these sentencing decisions by the appellate courts." State v.

Conter (2003) 99 Ohio St. 3d 463, 465-66. A trial court could only impose a sentence that

exceeded the presumption if it made the statutorily required findings, gave reasons for those

findings, and "clearly align[ed]" its reasons with the findings they purport to justify. Id. at 467-

68; see also State v. Ednro son (1999), 86 Ohio St. 3d 324, 325 and 328-29. If the trial court

failed to precisely follow the articulated process provided by the statute or if its findings and/or

reasons were insufficient, the sentence would be vacated and reversed on appeal. The

requirement of findings, and the further requirement of reasons in support of 6ndings for

imposing maximum and consecutive terms, thus (a) limited the discretion of the trial court and,

(b) as this Court explained in Conier, provided a basis for "an appellate court [to] conduct a

meaningful review of the sentencing decision." 99 Ohio St. 3d at 468.

By permitting the retroactive application of the remedy in the instant case to resentencing

hearings as well as to new sentencing hearings for pre-Opinion crimes, criminal defendants are substantiallv disadvantaged in each of these th^o critical respects. First and foreniost, they are

7 divested of the presumption of minimum and concurrent terms of imprisonment when facing

their sentencing judges at the trial court. Second, they lose the meaningful appellate rights that

existed prior to the Opinion. Before the Opinion, a defendant enjoyed a presumptive minimum-

and-concurrent sentence, and, if he received a sentence greater than the presumption, he could be

assured a new sentencing hearing if the trial court failed to make the necessary findings, made

erroneous findings or failed to provide reasons for those findings made in support of maximum

or consecutive terms. See State v. L1alhis (2006), 2006-Ohio-855, !j¶ 34, 37 (explaining that

"pre-Foster, R.C. 2953.08(G)(l) provided an opportunity for remand to the trial court if required

findings were missing" for a de novo sentencing hearing). If the Opinion's remedy is retroactively applied to resentencings, these important rights, quite unexpectedly, will be lost.

b. Due Process Precludes the Retroactive Applrcatiort of the Severarrce Remedv

By abolishing the statutory presumptions and eliminating critical appellate rights, this

Court has radically revised Ohio's sentencing law to the disadvantage of criminal defendants.

Due process prevents the retroactive application of this detrimental revision.

Although it involved state legislation rather than judicial decisionmaking, the United

States Supreme Court's opinion in Miller illustrates the fundamental problem with the retroactive application of this Court's severance remedy. In jVfiller, the Supreme Court addressed a Florida law that altered the presumptive sentencing range for particular offenses. 482 U.S. 423, 424. At the time the defendant committed the crime for which he was convicted, Florida's sentencing guidelines resulted in a presumptive sentence of 3 1/2 to 4 1/2 years of imprisonment. Id. The sentencing judge "had discretion to sentence an offender anywhere within the presumptive range without the requirement of a written explanation. Id. at 426. If, however, the sentencing judge wished to depart outside of the range, he or she must "gice clear and conmincim_ reasons in

8 writing for doing so." Id. By the time the defendant in Miller was sentenced, the Florida

legislature had revised the sentencing guidelines such that the defendant's presumptive sentence

would have been 5 1/2 to 7 years. Id. Rejecting the defendant's ex post facto argument, the

sentencing judge applied the revised guidelines in effect at the time of sentencing and imposed a

sentence of 7 years. Id. at 428. The Supreme Court of Florida affirmed the trial court, finding

the modification of the sentencing guidelines did not implicate the ex post facto clause.

In a unanimous decision, the United States Supreme Court reversed the Florida Supreme

Court. Id. at 429. The Court began by noting that central to the ex post facto prohibition is a

concern for "the lack of fair notice and govemmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated." Id. at 430 (quoting

6Veaver v. Graham (1981), 450 U.S. 24, 28-29). Finding immaterial the claim that the defendant

could not de6nitively show he would have got a lesser sentence under the old guidelines, the

Supreme Court concluded that petitioner has been "substantially disadvantaged" by the

retroactive application of the revised guidelines, which allowed the judge to impose a higher

sentence than previously contemplated, without having to fumish reasons in support of that

higher sentence. Id. at 431-33.

For the reasons expressed in Aliller, the Ex Post Facto Clause would prohibif the Ohio

General Assembly from eliminating the statutory presumptions in Ohio's felony sentencing law and applying that change retroactively. As in Miller, Ohio defendants had the expectation of presumptive (niinimum and concurrent) sentence that could only be overcome by judicial findings, and of appellate rights which would ensure that any enhanced sentence rested squarely on a permissible basis. The elimination of any presumptive sentence and the corresponding diminished ability to challenge on appeal a departure from that presumptive sentence

9 substantially disadvantages criminal defendants. Accordingly, such legislation could not be

retroactively applied to defendants whose offense conduct pre-dated the legislation.

In the instant case, the Ohio Supreme Court has attempted to do by judicial fiat that

which the Ohio General Assembly is precluded hom doing by the Ex Post Facto Clause. As

explained in Bouie and Dcrle, the Due Process Clause can not countenance such a result. For

defendants whose criminal conduct pre-dates February 27, 2006, the severance remedy is

unavailable as a matter of constitutional law. As the opinion in the instant case recognizes, the

decision to abolish sentencing presumptions for criminal defendants constitutes a marked and

unpredictable departure from the law passed by the General Assembly. See, Foster, at ¶ 87

(explaining that "[t]he General Assembly undoubtedly never anticipated that the judicial-finding

requirements contained within S.B. 2 would be held unconstitutional"). Given this unexpected

and detrimental departure, due process precludes the retroactive application of the now-severed

provisions to defendants whose offense conduct pre-dates the release of the opinion in the instant

case.

c. Rogers v. Teruressee is Factually and Legally Distinguishceble

Your amicus anticipates that the State may argue that this Court's retroactive application of the severance remedy is consistent with due process in light of Rogers v. Terrr"esse"e, (2001)

532 U.S. 451, 458-62. Reliance on Rogers would be misplaced because its holding is limited to routine exercises of common law decisionmaking which do not constitute marked departures from priorjudicial precedent.

In Rogers v. Teres.ree, the United States Supreme Court expressed a reluctance to read

Bouie too expansively in the context of "common law judging." Id. at 458-62. In a closely divided 5-4 opinion, the United States Supreme Court held that Tennessee Supreme Court's

10 retroactive abolition of the common law "year and a day rule," precluding a conviction for

murder when the victim of an assault lived for more than one year, did not constitute a violation

of defendant's due process rights. Drawing a distinction between the "interpretation of a statute"

and an "act of common lawjudging;" the Supreme Court explained that °a judicial alteration of a

common law doctrine" may not be given retroactive effect "only where it is "unexpected and

indefensible to the law which had been expressed prior to the conduct at issue." Id. at 461-62.

Noting the "year and a day rule is widely viewed as an outdated relic of the common law," that it

"did not exist as part of Tennessee's statutory criminal code," and that it had been mentioned

only three times, each time in dicta, in all the reported cases in Tennessee, the United States

Supreme Court concluded that the court's decision abolishing the year and a day rule did not

constitute a°marked and unpredictable departure from prior precedent." Id. at 462, 464, and

466-67. On the contrary, the United State Supreme Court viewed the Tennessee Supreme

Court's decision as "a routine exercise of common law decisionmaking in which the court

brought the law into conformity with reason and common sense [by] laying to rest an archaic and

outdated rule that had never been relied upon as a ground of decision in any reported Tennessee

case." Id. at 467. Accordingly, the United States Supreme Court held that no due process

violation occurred.' Id. at 466-67.

Unlike the abolition of some archaic rule of common law that had never previously been

explicitly applied, this Court's remedy in the instant case involves the severance of portions of

Ohio's post-S.B. 2 sentencing provisions that applied to every defendant and which formed the

' In dissent, Justice Scalia, joined by Justices Stevens and Thomas, and Justice Breyer in part, rejected as cramped the majority's reading of Borrie and the majority's interpretation of the due process clause. Id. at 467-81. In that two members of the Rogers majority are no longer on the Court, it is fair to say that a majority of the seven remaining members of the Court disfavor Roger.r.

II settled expectations of those defendants. This Court's decision to abolish sentencing

presumptions to the disadvantage of criminal defendants constitutes a marked and unpredictable

departure from the law passed by Ohio's legislature. Given this unexpected and detrimental

departure, defendants whose criminal conduct pre-dated February 27, 2006 cannot be subjected

to the remedy in the instant case.

d. Post-Booker Circuit Decisions Are bmpposite

Although this Court suggested that it was "applying the Booker remedy" to address the

Sixth Amendment violations contained within Ohio's felony sentencing code, Foster, at lj¶ 90-

93, the only similarity behveen the two remedies is the manner in which they were applied (i.e.

severance of an offending statutory provision). Beyond this similarity the Booker and Foster

remedies are, as a matter of substance, radically different in their respective effects on criminal

defendants.

By simply changing the Federal Sentencing Guidelines from mandatory to advisory, the

Booker remedy did not radically alter the expectations of criminal defendants or abolish their

anticipated sentence. Before and after Booker, trial courts are required to consider the Federal

Sentencing Guidelines - federal trial courts still begin at'the same base offense level and must

still determine whether certain upward adjustments are warranted. Booker, 125 'S.Ct. at 767

(explaining that °[t]he district courts, while not bound to apply the Guidelines, must consult

those Guidelines and take them into account when sentencing.") Before and after Booker,

criminal defendants still have the same ability to challenge the propriety of a particular upward

adjustment at the trial court and even on appeal. The sole difference for federal criminal

defendants is that pre-Booker sentences within the Federal Sentencing Guidelines range, absent a departure, were mandatory, and post-Booker sentences within the Guidelines range are

12 presumptively reasonable. See U uterl States v. Williams (C.A.6 2006), F.3d _, 2006

FED App. 0043P, *3.

The remedy in the instant case constitutes a significantly more severe departure from

Ohio's previous sentencing regime and the settled expectations of criminal defendants. Before

last week, Ohio trial courts started with a presumption of minimum and concurrent terms (Ohio's

equivalent of the "base offense level" found in the Federal Sentencing Guidelines) and could

only enhance the sentence if they found the presence of certain statutory factors (Ohio's

equivalent of the "upward adjustments" found in the Federal Sentencing Guidelines). After the

decision in the instant case, there is no presumptive base level -- trial courts do not need to make

any findings to impose a sentence above the minimum. This Court has excised Ohio's version of

the "base offense level," its version of "upward adjustments," and any requirement that trial

court demonstrate a consideration of either. Had the United States Supreme Court in Booker

applied a remedy akin to the remedy applied in the Opinion, there would be no Federal

Sentencing Guidelines in existence today.

Given the significant differences between the tangible effects of the Foster and Booker

remedies on criminal defendants, federal case law concluding that Booker does not violate the ex

post facto principles inherent in the due process clause,° is inapposite.5

' E.g., United States v. Duttcan (C.A.I 1 2005). 400 F.3d 1297, 1306-1308; United States v. Scroggiirs (C.A.5 2005), 411 F.3d 572, 575-77; U rited States v. Lata, 415 F.3d at 110-12, Uitited Statcs v. Janrison (C.A.7, 2005), 416 F.3d 538, 539, Uirited States v. Dapas (C.A. 9 2005), 419 F.3d 916, 919-21, Uniterl States v. Rines (C.A.10, 2005), 419 F.3d 1104, 1106-1107; United States v. Vaughn (C.A.2 2005), 430 F.3d 518, 524-25, United States v. Wade (C.A. 8 2006), 435 F. 3d 829, United States v. Al.rton-Grares (C.A. D.C. 2006). 2006 U.S. App. LEXIS 2001, *31- 35, Uitited States v. Greeir (C.A.4 2006), 2006 U.S. App. LEXIS, *2, Uaiterl States v. Ediger, 2006 U.S. App. LEXIS 3716, * 17-18.

` Moreover, it is quite possible that the United States Supreme Court, when eventually confronted with the ex post facto/due process issue, will find that its Booker remedy cannot be applied

13 CONCLUSION

Wherefore, your amicus prays that this Court reconsider its decision.

Respectfully submitted,

JOHN T. MARTIN, ESQ. (0020606)

CULLEN SWEENEY, ESQ. (0077187)

Assistant Public Defenders, Cuyahoga County Ohio 1200 West Third Street, Suite 100 Cleveland, Ohio 44113

Counsel for Amicus Curiae The Cuyahoga County Public Defender

retroactively. The recent replacement on the Court of two members of the Bookcr-remedy majority, who were also members of the Rogers majority, underrnines the credibility of any prediction that the Supreme Court will eventually affirm the federal circuits' ex post facto/due process holdings.

14 CERTIFICATE OF SERVICE

A copy of the foregoing Amicus Brief in Support of Appellant's Motion for Reconsideration

was mailed on this - day of March, 2006 to the following:

THERESA G. HAIRE Assistant State Public Defender 8 East Long St., 11 `s Floor Columbus, Ohio 43215

CHARLES B. CLOVIS Assistant State Public Defender 8 East Long St., I 1'h Floor Columbus, Ohio 43215

MICHAEL T. FISHER 55 Public Square, Suite 1010 Cleveland, OH 44113

R. PAUL LAPLANTE Lake County Public Defender 125 East Erie St. Painesville, 011 44077

JASON MACKE 400 South 5'h Street Columbus OH 43215

JEFFREY GAMSO Max Wohl Civil Liberties Center 4506 Chester Avenue Cleveland OH 44103-3621

ROBERT L. BECKER Licking County Prosecutor Administration Building 20 S. 2"d Street Newark, Ohio 43055

WILLIAM D. MASON Cuyahoga County Prosecuting Attorney The Justice Center-9'h Floor 1200 Ontario Street Cleveland, OH 44113

15 CHARLES E. COLSON Lake County Prosecuting Attorney 105 Main Street P.O. Box 490 Painesville, OH 44077

RON O'BRIEN Franklin County Prosecuting Attomey 373 South High Street - 13'' Floor Columbus OH 43215

JIM PETRO Attomey General 30 East Broad, 17'h Floor Columbus, Ohio 43215

JOHN T. MARTIN, ESQ. Assistant Public Defender Counsel for Amicus Curiae Cuyahoga County Public Defender

16 JCC L C pu'y 1999 TERM i.loraci. CI^S'ri State of Ohio, ..i,.. ^CC4_ „c nF•^`.. Appellee, Case No. 99-905

V. E N T R Y

Steven T. Smith, Appellant.

This cause is pending before the Court as an appeal of right from the Court of Common Pleas of Richland County. Upon consideration of appellant's motion to remand to the trial court for correction of record,

IT IS ORDERED by the Court that the cause be remanded to the trial court for a period of thirty days for an election of which aggravated murder count the appellant is sentenced on and to correct the record accordingly.

IT IS FLRTHER ORDERED by the Court that the briefing schedule be held in abeyance for the thirty dav period.

IT IS FURTHER ORDERED by the Court that the appellant's request to remand this case for any further proceedings on the sexual motivation specification be denied.

(Richland County Court of Common Pleas; No. 98CR601D)

- EXHIBIT C o027r12zz99 oN comriFM ^:c

^^^ ^^^^^^^ ^^^^^ ^^ ^^^ja JUN 072006

MARCIA J. MENGEL, CLERK COURi OF OHIO 103-802 SUPREME

State of Ohio Case No. 04-485 V. ENTRY Donald J. Ketterer

This cause is pending before the Court as a death penalty appeal trom the Court of Common Pleas for Butler County. Upon consideration of appellant's motion for leave to file supplemental briefing to address sentencing issues,

IT IS ORDERED by the Court that the motion is denied.

(Butler County Court of Common Pleas; No. CR2003030309)

EXHIBIT I -^j TRANSCRIPT PAGES Apri13, 2003 Hearing 9

1 A: Yes, it does. 1 Q. okay. And what was the consent to search 3 for? 4 A. This consent was for a black leather coat to 5 search in a coat and also the contents of a plastic old 6 Navy bag. 7 Q. And did he -- now, about the same time, did x he execute another consent to search which is State's 9 Exhibit 3? 10 A. Yes, within minutes of the signature on that 11 consent, we discussed the consent to search his home at 11 1041 Fairview and read the consent to him, and he signed 13 it and gave us authorization to search the home. 14 Q. Now, when you spoke to him, did he appear to 15 understand what you were talking about?

1b A. Yes, he did. 17 Q. were his answers and responses to your 18 statements or questions logical and coherent? 19 A. Yes, they were.

LU Q. And did they make sense?

21 A. Yes. 22 Q. Did he question anything about the consent 23 to search? 24 A. when I read the first consent to search to 15 him --

^ Butler county official court Reporter Linda M. Tuttle, RMR, ( 513) 785-6532 29

1 continued your interview after obtaining consent, the 2 search forms, is that what happened?

3 A. No.

4 Q. No? 5 A. No. 6 Q. You stopped right then? 7 A. Yes. 8 Q. why did you abruptly stop at that particular 9 poi nt? 10 A. Detective Rogers witnessed the consents, and 11 then we went to look at the property, the bag, the 12 clothing or the coat.

13 Q. okay. And so you left the interview room? 14 A. Yes.

15 Q. And let Mr. Ketterer there? 16 A. Yes.

17 Q. Let me ask you this, was he handcuffed? 18 A. No.

19 Q. was the door closed? 20 A. Yes.

21 Q. And was it a secured door? 22 A. No.

23 Q. And he would have got up and walked? 24 A. Yes.

25 Q. And at this point in time, the investigation

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 30

he's a suspect in a homicide, and he's not going anywhere, correct? A. No, if he wanted to leave, push came to shove, he could have left. Q. He could have left through the five armed detectives and out the locked door? A. we had no reason to -- we had reason to want to talk to him, but we had no probable cause to charge him at that point. Q. Did you tell him -- you said you had no probable cause at that time? A. To charge him, correct. Q. Did you ever tell him that he could go? A. No, i did not. Q. Did you witness whether any officers told him he could go?

A. No. Q. so you left and you went to go examine the property personal property?

A. Yes.

Q. where did you do that at? A. In the detective section.

Q. And who was present with you? A. Detective Rogers was there. He's the only one that I recall being there, but there were other

autler county official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 31

detectives there as well. Q. And what was the item of property that you examined first? A. I stood back and watched as Detective Rogers went through the property. Q. Did he go through the bag or the jacket first? A. The coat was first. Q. And what was found in the coat? A. He pulled out stuff and laid it on the countertop. Q. specifically what? A. i don't remember what was taken out of the pockets. Q. Did anybody -- was anybody compiling an evidence log so that we could discern what was taken from the coat? A. Not at that point, no. Q. Were you taking notes at this point in time? A. No, just standing there watching what was taken out. Q. But you can't recollect what was taken out of the coat?

A. No.

Q. Nothing of significance then because it

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 32

would strike your mind if there was? A. The only thing significant was a small box with a name and address of a lady, Rosemary, or Rose Sanders at 1104 Schuller Avenue. And there was a set of glasses that had a name, too. Q. And what did the name say? A. The glasi^es were Larry sanders. Q. okay. And so those two items. Anything else come to mind? A. Not to me, no. Q. And the Navy bag, old Navy bag was examined; is that correct? A. The stuff I just explained, I believe, was in the old Navy bag, everything was dumped out and looked through. Q. so the glasses, the two pairs of glasses weren't found in the coat -- A. The only thing that I can recall of significance, like I said, was the glasses and the box with the address of Rosemary sanders, 1104 Schuller Avenue. whether that came out of the box, the bag, or the coat, I don't know what that came out of. It was property that he brought with him. Q. This box that you're talking about came out of the pockets of the jacket or separate item, do you

autler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 39

1 with the Miranda rights? 2 A. Yes. 3 Q. And at that point in time you had information that he didn't read very well, correct? A. Said he didn't read very well, correct, but he could read. Q. Did you take any effort or time to investigate further his ability to read or write or did you just go into reading the Miranda card to him? A. I read the consent to him, and as he looked at it himself, the Miranda rights, i read it to him. Q. You read him -- did he have the card when you did that? A. He had the .--ard to look at, but he didn't look at it himself or reread it after i read it to him. Q. He was having eye contact with you when you read him the Miranda rights?

A. Yes. Q. Did he stop you during your discussion of the Miranda rights at any point in time to ask questions about words or any particular phrases? A. No, he did not. Q. At that point in time, at 8:25, you had already received information that he had been in a bar earlier day at Chasting's, correct?

autler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 40

1 A. Yes. 2 Q. And did you inquire as to whether or not he 3 had had any intoxicants, drugs, alcohol, prior to his 4 being transported to the Hamilton police division? 5 A. Yes, i did. 6 Q. And what did he relate to you? 7 A. He told me he had two beers and one shot at 8 Chasting's Bar. 9 Q. Prior to 8:49?

10 A. Yes. 11 Q. You did patrol?

1L A. Yes, sir. 13 Q. And he had -- you had prior experience with 14 people that were intoxicated?

15 A. Yes, I have. 16 Q. And you made arrests for DC intox?

17 A. Yes. 18 Q. Maybe hundreds of them? 19 A. I wouldn't say hundreds, but maybe a 20 h un d red . 21 Q. A hundred. So you have an experience with 22 making determinations as to whether or not somebody is 23 under the influence?

24 A. Yes. 25 Q. Plus you have had DUI arrests probably, too,

autler County official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 41

haven't you? A. Yes. Q. And did you notice any characteristics of Mr. Ketterer that would have suggested to you that he was under the influence of drugs or alcohol at 8:25 on 2/25/03? A. i could smell an alcoholic beverage on him as we spoke. Q. were his eyes glassy? A. I don't recall his eyes being glassy. Q. was his face ruddy? A. No, pale. Q. And did you notice at any time -- did you notice him up out of his seat and having difficulty and maneuvering about? A. I just -- seemed to be fine a little slow, but he wasn't falling down or tripping or swaying from side to side or anything like that.

Q. Did he slur his words? A. Yes, he did.

Q. was that a red flag for you to stop and inquire whether or not he had ability to waive his Miranda rights? A. That was one of the reasons why I asked him how much he had to drink because he had severe cotton

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 42

mouth. Q. okay. A. I knew he was at the bar and drinking, and so I didn't inquire as to how much he had to drink. Q. Did you attribute somebody that had cotton mouth as to somebody that had been drinking or not? MR. HEDRIC: Objection.

THE COURT: Overruled. A. It is one side that I had seen before. Q. so you smelled alcohol and he told you he had been drinking and he had cotton mouth and he had slow dexterity and glassy eyes?

A. No. Q. something you just saici? A. No. I don't recall his eyes being glassy and his dexterity was fine. Like I said, he wasn't tripping or falling. He didn't move very fast, but I wouldn't attribute that to being a sign of intoxication. Q. Did you give him a BAC datamaster test? A. No, I did not. Q. Anybody? A. No. Q. was that available to you at the Hamilton police division?

A. Yes, it is.

autler county official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 39

with the Miranda rights?

A. Yes. Q. And at that point in time you had information that he didn't read very well, correct? A. said he didn't read very well, correct, but he could read. Q. Did you take any effort or time to investigate further his ability to read or write or did you just go into reading the Miranda card to him? A. I read the consent to him, and as he looked at it himself, the Miranda rights, i read it to him. Q. You read him -- did he have the card when you did that? A. He had the --ard to look at, but he didn't look at it himself or reread it after I read it to him. Q. He was having eye contact with you when you read him the Miranda rights?

A. Yes. Q. Did he stop you during your discussion of the Miranda rights at any point in time to ask questions about words or any particular phrases? A. No, he did not. Q. At that point in time, at 8:25, you had already received information that he had been in a bar earlier day at chasting's, correct?

autler county official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 40

A. Yes. Q. And did you inquire as to whether or not he had had any intoxicants, drugs, alcohol, prior to his being transported to the Hamilton police division? A. Yes, i did. Q. And what did he relate to you? A. He told me he had two beers and one shot at Chasting's ear.

Q. Prior to 8:49? A. Yes.

Q. You did patrol? A. Yes, sir. Q. And he had -- you had prior experience with people that were intoxicated? A. Yes, I have.

Q. And you made arrests for DC intox? A. Yes.

Q. Maybe hundreds of them? A. I wouldn't say hundreds, but maybe a hundred.

Q. A hundred. So you have an experience with making determinations as to whether or not somebody is under the influence?

A. Yes. Q. Plus you have had DUI arrests probably, too,

sutler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 41

1 haven't you?

1 A. Yes. 3 Q. And did you notice any characteristics of 4 Mr. Ketterer that would have suggested to you that he was under the influence of drugs or alcohol at 8:25 on 2/25/03? A. I could smell an alcoholic beverage on him as we spoke. Q. were his eyes glassy? A. i don't recall his eyes being glassy. Q. was his face ruddy? A. No, pale.

Q. And did you notice at any time -- did you notice him up out of his seat and having difficulty and maneuvering about? A. I just -- seemed to be fine a little slow, but he wasn't falling down or tripping or swaying from side to side or anything like that. Q. Did he slur his words? A. Yes, he did. Q. was that a red flag for you to stop and inquire whether or not he had ability to waive his Miranda rights? A. That was one of the reasons why i asked him how much he had to drink because he had severe cotton

Butler County official court Reporter Linda M. Tuttle, RMR, ( 513) 785-6532 42

mouth. Q. okay. A. I knew he was at the bar and drinking, and so i didn't inquire as to how much he had to drink. Q. Did you attribute somebody that had cotton mouth as to somebody that had been drinking or not? MR. HEDRIC: Objection,

THE COURT: Overruled. A. it is one side that I had seen before. Q. so you smelled alcohol and he told you he had been drinking and he had cotton mouth and he had slow dexterity and glassy eyes?

A. No. Q. something you just said? A. No. I don't recall his eyes being glassy and his dexterity was fine. Like I said, he wasn't tripping or falling. He didn't move very fast, but I wouldn't attribute that to being a sign of intoxication. Q. Did you give him a BAC datamaster test? A. No, i did not. Q. Anybody? A. No. Q. was that available to you at the Hamilton police division?

A. Yes, it is.

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 93

know, we can use that in the warrant. we were still looking for Joe Bob and strictly for Harmon Avenue. Q. okay. So when you say you are sitting at 4 the house, that means just waiting to see whether he 5 comes or goes, "he" being Donald Ketterer? 6 A. Detective cifuentes and myself watching the front of the house hoping basically he would come home. In the meantime, we had told Donny Williams and gave him Detective Cifuentes cell phone number. If he shows up there again, you call us right away and we will go there. So there was that pattern he had been there Monday night. He had been there Tuesday afternoon, and so as far as we knew, he may show up there again. so we gave him our cell phone number. so about ten minutes until seven, around 7:00 p.m. Detective cifuentes received the phone call from Donny Williams saying Joe aob is at my back door. So myself and him, we were in separate cars, we took off down there. And as quickly as we could get there, and I came up from the back and Detective Cifuentes came up from East Avenue. And I came down from Hanover Street and I saw him knocking on the back door, 7oe Bob. And I approached him and identified myself. I was in a police rag jacket, that says "police" on the front and back and identified myself and said, you know,

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 94

we need to talk to you. And I had him put his hands up on the wall. He was standing there walking. As I went to Pat him down he had this big long leather jacket. As I patted him down I could tell it was very heavy. Didn't know what was in the pockets and I asked if it was okay if I took it off. There was too much weight on the jacket. And I'm patting him down for my safety just for weapons. There was too much weight in the jacket to be normal keys or something, and I don't know what might be in it. I asked him if he could remove the jacket because it was so thick and heavy. Q. what did he say? A. He said no problem. And basically I padded the outside of the pockets, and it was just money, just change on both sides. And that is what was making it so heavy. so I laid it on my car, patted him down and he was holding an old Navy plastic bag. And I said, could I see what's in that bag? And he said, no, that's my bag. And I said, that's fine. And so by that time Detective Cifuentes had approached, and I think Detective cifuentes had known him from the past and started some conversation, you know, me and you have talked before, we need you to come up to the police department to talk to you. And he said, that's no problem, he would do that. And he asked, again, he asked

autler County official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 134

long-sleeved shirt or something else, but I patted him completely down, pockets down, just to make sure he did not have anything else concealed anywhere. 4 Q. And after you got the coat off of him, did 5 you feel anything on his person that suggested to you 6 that he had a weapon on his person?

A. No. Q. All right. was he saying anything to you during this period of time? A. Yes, he was. He was talking about something. I don't recall what it was. It was about another incident. I do remember he kept saying something. If this is about something, but I don't remember what he was saying. Q. okay. And did what he was saying to you strike you as strange? A. I wasn't familiar with what he was talking about. Q. Was it babble or was it -- A. No, it was coherent. He was asking if this is about crack or a theft or something, he was talking about a crime. He was saying if this is about that, you know, I didn't do it or something like that. But he wasn't talking about the homicide. He wasn't talking babbling. He was talking about a specific incident that

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 142

numbers are included in the return, they were the ones that performed the search of the premises, correct? A. That's correct. Q. And you went back and conducted the interview that occurred about 12:30?

A. Yes. Q. If you could take a moment and read the affidavit in full, and once you are done, I'm going to ask you whether or not it contains all accurate information. A. I have read it several times. This is everything that I remember, yes. Q. We can agree that, again, turning your attention to State's 5, which is the search warrant, and the affidavit attached to it for the Fairview Avenue premises, we can agree that you relied heavily on the statement given to you by Donald Williams?

A. Yes. Q. Had you had contact with Donald Williams in the past?

A. No. Q. Have your brother officers had contact with him in the past? A. As far as I know, the Butler County sheriff's office had.

sutler county official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 165

1 A. I do that when I am interviewing someone 2 that I believe is a suspect. 3 Q. okay. And he was the suspect at that point 4 in time? 5 A. He was a suspect, yes. 6 Q. And the focus of the investigation was centered on him? A. He was a suspect. Q. Fair enough. The door to the interview room was closed?

A. Yes. Q. And is locked?

A. No. Q. Did you take any efforts to inquire as to whether or not he was on medication prior to getting the interview? A. He mentioned that he took medication. Q. And did you explore that -- what time did he do that? A. I don't recall. i remember him saying that he took some -- I asked him how often he took it, and he said, well, it just depends. He didn't have -- he couldn't answer me whether he took it regularly. So I just kind of left it at that. Q. okay. Did you ask what medication he was

Butler county official court Reporter Linda M. Tuttle, RMR, ( 513) 785-6532 242

Rogers. So my question is -- I guess my first question, is that true, did you bring a Donald William to the Hamilton Police Department with an interview with Detective Steve Rogers? A. i brought an confidential informant. Q. And if the name Donald williams is listed in this affidavit, would that have been then the same confidential informant that you brought to the Hamilton Police Department? A. Again, my role in this was I was contacted by a confidential informant, and I released that confidential informant to the Hamilton Police Department. Q. What time of day did the confidential informant contact you? A. Morning hours. i don't recall. Q. Sometime before noon on the 25th? A. Again, since I didn't take notes on anything in regards to it, I couldn't recall what time of the day it was. Q. And can you tell me how it is that this confidential information contacted you on the 25th? A. I believe it was by phone. Q. And did he call you there at the Butler county Sheriff's office or did he contact you at home or in some other manner?

autler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 246

1 directly relevant. 1 THE COURT: Rephrase the question. How long has he been providing you reliable information? MR. HOWARD: Well, I don't know that he has ever provided relevant information.

THE COURT: Ask that question then. Q. (Mr. Howard) Has this informant in the past, prior to February 25th of 2003, provided reliable, what you deem to be reliable information, to you or other members of the drug and vice unit?

A. Yes. Q. And on how many Qccasions? A. I can't reveal that for the safety of the informant. Q. one time? You can't even tell one time, can you? A. At least one time, yes. Q. Two times? A. At least one time. Q. one time? MR. HEDRIC: No, Judge, objection. Improper characterization of the testimony. The agent said at least one time. Q. (Mr. Howard) And you have been involved in drug and vice how long overall?

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A. Five years. Q. okay. And so it's safe to say that you used this informant and other informants on more than one occasion? A. Yes. Q. And you can only testify under oath here today that this informant on at least one occasion provided reliable information? A. Again, I don't need word getting out on the street by the defendant that, again, a confidential information has done this many buys because that puts more risk on that confidential informant, so the answer to your question is that informant has offered at least on one occasion that has led to an arrest. Q. Did that also result in a conviction for that person if the information is gathered? A. There has not been a conviction yet. Q. And you can't testify here under oath that this person has provided numerous occasions or has on numerous occasions provided accurate and reliable information?

A. At least once. Q. And this individual contacted you sometime in the morning of the 25th on your cell phone; is that correct?

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THE COURT: Did you want to say something?

MR. PAGAN: He said what I was going to say.

THE COURT: Sustained. MR. PAGAN: Let me put on the record that it's our decision that you can suppress all fruits of the search warrant if you find that the police department provided inaccurate information in tha-` affidavit. And I think what Mr. Howard is getting at is whether or not the information that the police authorities had was accurate at all as it was reflected in the affidavit. That's the basis. THE COURT: Everything in the affidavit is based on what was told to the Hamilton Police 14 Department, not what was told to him. MR. HOWARD: That's correct. And I'm trying to find out if this information that he provided on this occasion to this detective is actually reliable based upon what is in the affidavit and based upon what was told to Detective Rogers. MR. HEDRIC: This gentleman was not involved in the search warrant process. it's a discovery fishing expedition we are on. It's not suppressible. He wasn't involved in it. MR. HOWARD: Goes to the issue of whether or not this person has provided reliable and accurate

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information. MR. Hedric: As to what this witness or this informant told someone from the Hamilton Police Department, not what he told Agent Lambert. 5 MR. PAGAN: if he told Agent Lambert one thing, and the Hamilton PD another, then it is inaccurate information that you can use to kick a search warrant, and that's why it is relevant.

THE COURT: what was your question again?

MR. HOWARD: what did -- THE COURT: You read off the search warrant. MR. HOWARD: My question to Detective Lambert was what did this confidential informant tell you when he called you on your cell phone that

morning?

THE COURT: where is that search warrant,

EXhibit B.

THE HEDRIC: Exhibit B.

THE COURT: And you're talking about --

MR. HEDRIC: Second sentence, during this

investigation.

THE COURT: Which paragraph?

MR. HOWARD: There is only one paragraph.

THE COURT: During the investigation,

affiant's belief?

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MR. HOWARD: Yes. THE COURT: Second sentence. show officer Lambert that, and ask him if he had anything to do with that. MR. HEDRIC: what are you showing him? THE COURT: Affidavit part. Q. (Mr. Howard) showing you what's been marked as Defendant's Exhib-it B, which I will tell you is a copy of the search warrant by Detective Rogers in regard to Mr. Hedric's case, okay? You have seen a search warrant before? A. I have not seen -- Q. Not this one, but a search warrant? A. Yes. Q. would you please read for me to yourself the -- where it says affiant's belief is based on the following facts and read through that? A. (Witness reading document). Q. Have you read the whole thing? A. Yes. Q. would you go over the second page as well? A. (witness reading document). Q. If you're at least halfway down the page, you can stop reading, because you then are getting into things that the officer said; is that correct?

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A. Yes. Q. And you have had an opportunity to review that then; is that correct? A. Yes. Q. And have you seen in there the statements that have been attributable to a Donald Williams in this case; is that correct? A. Yes. Q. And is that information, which is contained in the affidavit, substantially similar to the information that was provided to you by your confidential informant?

MR. HEDRIC: Again, I'm going to object, 7udge. MR. HOWARD: I'm assuming that's why you had me show him that.

THE COURT: That's different. Q. (Mr. Howard) Is it different than the information provided to you -- the information contained in the affidavit, is that different than the information provided to you by your confidential informant? A. There is a lot more information revealed in the affidavit than I allowed the informant to reveal. Q. okay. THE COURT: That concludes your questioning.

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1 A. I believe so. 2 Q. Since providing you this information on February the 25th, in relation to the case for which we are here today, have you had contact with the confidential informant since that date in regard to any other information on this case?

A. No. MR. HOWARD: If I could have just a second, 7udge. That's all we have. MR. HEDRIC: No other questions, 3udge.

THE COURT: Is he excused?

MR. HOWARD: Yes.

THE COURT: You are excused. watch your step.

MARY SUE GABBARD having been first duly sworn, was examined and testified under oath as follows:

DIRECT EXAMINATION

BY MR. HOWARD: Q. Ma'am, would you state your name, please?

A. Mary Sue Gabbard.

Q. what's your address, Ms. Gabbard? A. 706 East Avenue.

Q. How long have you resided there? A. About five months.

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Q. And describe the premises for me, if you would, please. A. It's a big building connected to a garage. it's being remodeled into an apartment in front.

MR. HEDRIC: I'm sorry. I am having a tough

time hearing you.

THE COURT: You've got to keep your voice up. A. I apologize. on the building on the corner of East Avenue, there used to be two parts to it. There used to be a radio shop in the back, and now it's a garage, and they work on cars in the front. Q. And you rent an apartment there; is that correct? A. Yes, sir. Q. And can you tell me what you have there in your apartment? Do you have a living room, bedroom? A. It's like a small kitchen that's being remodeled. It's three rooms, a living room and a bedroom.

Q. okay. A. And it's having two rooms added onto it.

Q. Do you pay rent there? A. No, not exactly.

Q. Do you live there for free?

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A. Yes. Q. And who is your landlord that provides you the free room and board? A. A friend of mine, Donald Williams. Q. How long have you known Mr. Williams? A. Four years. Q. And you Pave been living there, you said, four months? A. About four months. Q. where did you live prior to that? A. Southgate Apartments in Fairfield. Q. And can you give me your date of birth? A. 2/19/56. Q. Can you give me your social security number? A. (stricken from this record and provided under seal.) MR. HEDRIC: Your Honor, I'm going to object and be stricken. I don't know what relevance this has to -- I am going to ask that it be stricken. MR. HOWARD: Judge, we believe she has prior criminal convictions which have not been provided to us in discovery, and I want to find out what she has on later on in this case that none of the witnesses listed above have any known felony record of conviction. And I don't believe that to

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be true because I have got 20, 25 pages of documents from the Hamilton Municipal Court showing convictions. And I just want to confirm here who we have got here as a witness. 5 THE COURT: Do you have the social security 6 number on that?

MR. HOWARD: No. MR. HEDRIC: Judge, the only way that a social security number is helpful to these gentlemen if they would run an NCIC or some sort of computerized search, if they don't have them already. That would be highly illegal like Mr. Kristoff, their investigator, to do. And I know we had had issues in the past running NCICS with this detective, and that's why I am worried. If you remember, he did that a few years ago.

MR. HOWARD: At the direction of the prosecutor's office. MR. HEDRIC: I don't know who he did it for, he just did it. He admitted he did it. MR. HOWARD: I think that is when he was working for the prosecutor's office. i'm just trying to find their social security numbers. I know Hamilton Municipal Court cross references through their references social

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security numbers. social security numbers come up on individuals. And I take court-appointed cases out of that court and they provided me with date of birth and social security number, on all of my clients. And it's a way to reference and go down their prior records. THE COURT: Do you have her records there? MR. HOWARD: I got records of arrests from Hamilton Municipal Court, and going all the way back to 1980. MR. HEDRIC: Judge, I'll be honest, I have not provided criminal histories on the witnesses because I haven't had a chance to. If you remember, this court requested I get this discovery forthwith, and I gave them what I had. and as you know, I have a continuing obligation to divulge. Detective Rogers will run those through legal means, and we will provide that, but as you recall, I had a very short time to get discovery to these defense counsel, and I did that. THE COURT: Ask if she has ever been convicted of a state or federal offense. Q. (Mr. Howard) Have you ever been convicted -- MR. HEDRIC: Judge, again, is that a suppressible issue or is that something proper for

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cross-examination or direct examination at trial? THE COURT: Once that question is answered, do you have any other questions in regard to this witness?

MR. HOWARD: Yes.

THE COURT: As in regards to what happened? MR. HOWARD: Yes.

THE COURT: That's one question.

MR. HOWARD: Which one? THE COURT: Have you ever been convicted of a state or federal offense, and move onto the issues of suppression, search, arrests, ID. Q. (Mr. Howard) Have you ever been convicted of any state or federal offense, ma'am? A. I don't know exactly what that means, state or federal. Q. Have you ever been convicted of any crime in state court, either in Hamilton Municipal Court or Butler County Common Pleas Court?

A. Yes, sir. Q. And have you ever been convicted of any federal offense in any federal court?

A. No.

Q. No?

A. No.

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Q. Now, do you know oonald Ketterer?

A. Yes, sir, I do.

Q. And do you see Mr. Ketterer in the courtroom today?

A. Yes, I do. Q. And did you have contact with Mr. Ketterer on or about February the 24th of this yearT

A. Yes, sir. Q. And can you tell me what the nature of that contact was? A. i had contact with him several times. I don't know exactly the date. Q. How long have you known him? A. I met him several months ago. And I have had contact with him on and off ever since. Q. where did you meet him several months ago? A. The first time I ever met him, he stopped and was talking to me by the drive-thru on East Avenue. Q. And on other occasions have you had him over to your apartment there at 706 East Avenue?

A. Yes. Q. And has he ever spent the night at your apartment? A. You mean went to bed there and slept there, no.

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1 Q. Has he been at your apartment smoking crack 2 with you?

3 A. Yes, sir, he has.

4 Q. And on about how many occasions? 5 A. Several. 6 Q. And do you know Donald Williams, your 7 landlord?

K A. Yes. 9 Q. And has he been there on those occasions as well smoking crack? MR. HEDRIC: Objection, 7udge, not suppressible whether this witness or anyone smokes crack at someone's house, no way a constitutional issue.

THE WITNESS: Can I answer that?

MR. HEDRIC: No, you can't, not until the

7udge says you can.

MR. PAGAN: )udge, if I can respond? MR. HEDRIC: 7udge, I have been real lenient with the tag team here. Mr. Howard is extremely qualified. MR. HOWARD: I want that on the record. An issue came up earlier with regard to whether or not Mr. Ketterer had the right to object or standing to object to any search to the property

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seized from the 706 East Avenue Address. I am trying to find out her relationship with Mr. Ketterer and how long she has known him and whether or not once I follow up with other questions whether or not he has any reasonable basis through the testimony of this witness to object to any search that would have occurred at that address. THE COURT: what does that have to do with Donald Williams?

MR. HEDRIC: Thank you.

Q. (Mr. Howard) To your knowledge, has Mr. Williams allowed Mr. Ketterer to be at the 706 East Avenue address? A. Yes, he has been there. Q. And prior to February the 24th, when was the last time that Mr. Ketterer was at that residence or address? A. i'm sorry. i do not know dates. Is there a special thing from February 24th? I am not remembering it. Q. Do you know Lawrence sanders?

A. who? Q. Lawrence sanders? A. No.

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1 Q. Do you know anything about a murder, which 2 occurred over on 1104 Schuller Avenue? A. Yes, I do. Q. And what can you tell me about that, that you know? MR. HEDRIC: Objection, Your Honor. Again, 7 fishing expedition, trying to get discovery what this witness knows, and that is not suppressible. MR. HOWARD: says she wasn't familiar with the dates, Judge, and I'm trying to refresh her recollection with regard to a date trying to provide her information. MR. HEDRIC: The question was, what do you know about a murder? THE COURT: You were asking how many times was he over there, how many times was he over there prior to the murder on Schuller Avenue that she knows about, and she doesn't know dates. Q. Do you know what i'm talking about, about the murder? A. Yes, I realize what date you are trying to get at. Q. Prior to that date, can you tell me how many times Mr. Ketterer would have been at the address at 706 East Avenue?

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1 A. Probably I'm guessing, 10, 15 or 20 times. 2 Q. And after February 24th, can you tell me how 3 many times he was over at that address? A. if that's the date I'm thinking about, he was there the same day and then the next day. Q. And did Mr. Ketterer have any items of personal property at that address? A. He brought some on him on that date. Q. And on which date? A. I guess the February 24th day. Q. And can you tell me which items of personal property he brought over to that address and left? A. No, I can't tell you what they were. It was a box of different pieces of jewelry; rosaries, that type of thing. Q. And can you tell me when he left those items?

MR. HEDRIC: objection. Again, Judge, this is not suppressible.

MR. HOWARD: Let me ask it this way. Q. Can you tell me why he left those items there? A. why he left them there?

MR. HEDRIC: Again, objection.

THE COURT: what about who is he living

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1 with? 2 MR. HEDRIC: She already testified he never spent the night there. MR. HOWARD: I asked if he left any property there, which went unobjected to. And she said, yes. And I'm just trying to find out under what circumstances he left that property there.

MR. HEDRIC: And I'm saying that's not

permissible for a motion to suppress; no

constitutional basis. MR. HOWARD: Judge, if he left it there because he forgot it or he left it there on purpose for safekeeping or he left things there, it does give him a basis, and does become a constitutional issue. THE COURT: Doesn't live there and left it there, and the other person gave consent to the search -- MR. PAGAN: would you allow a tag team? Minnesota v Olson stands for a proposition that a guest has the standing to object to a search, and I think that is what Mr. Howard is getting to. MR. HEDRIC: He has never spent the night there, Judge. He may have smoked some crack there, period. But that's what he has testified to. All

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1 they are doing is fishing, Judge. 2 MR. PAGAN: We are asking the witness to 3 develop a record on the particular issue we have 4 an issue to get into, and if we get objected to, 5 we can't develop that record. 6 THE COURT: Ask questions that would go to 7 whether he lived there. 8 Q. (Mr. Hovvard) You are saying that Mr. 9 Ketterer never spent the night there? 10 A. No, he never slept there. 11 Q. Never slept there?

12 A. N0.

13 Q. Did he have any items of personal property 14 there? 15 A. He didn't keep items of personal property lb there, but on occasion he did Teave some, yes. 17 Q. something such as? 18 A. whatever -- I don't even know what was in 19 that box. In fact, I didn't look through it. I seen 20 some of the stuff that he had, but I didn't -- I was 21 busy. 22 Q. And on that date, then, is that the only 23 date that he has left items of personal property at the 24 house or your residence? 25 A. No, one other time he brought over a few

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things that he said he didn't want anymore. one of them was a little hula doll, and I don't know, a skull gear shift, and there was a couple other things that he 4 brought from his home. And he had tried to get me to 5 come over and see if I wanted anything out of his home, 6 and i've never been to his home. Q. And c!id he ever come back and retrieve those items that he left, the hula doll? A. No, I still have it. Q. Did he ever leave a toothbrush there? A. No. Q. Did he ever receive any mail there? A. No. Q. Did he ever receive any visitors there? A. No. Q. Did he ever eat any meals there?

A. No. Q. Any articles of clothing there? A. No. Q. Did you have any conversation with Mr. Ketterer about any of the circumstances which occurred at 1104 Schuller Avenue? MR. HEDRIC: objection, again, that's not suppressible. MR. HOWARD: Just a yes or no question.

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MR. HEDRIC: I don't care, it's not suppressible. That's not the purpose of why we are here today. Q. Did you provide any information to the sheriff's office or Hamilton Police Department in regard to any of these circumstances that occurred on 1104 Schuller Avenue? MR. HEDRIC: Objection, same basis. MR. HOWARD: Trying to find if she provided information, 7udge.

MR. HEDRIC: Objection.

THE COURT: I will allow a yes or no answer,

but not going into it.

MR. HEDRIC: But what?

THE COURT: But not going into it. Q. (Mr. Howard) Did you provide information to the sheriff's office based upon any information that Mr. Ketterer would have told you surrounding the circumstances at 1104 Schuller Avenue? A. Not that he would have told me. Q. Were you present at 706 East Avenue on the 25th of February when Mr. Ketterer was taken into custody by the Hamilton Police Department?

A. Yes. Q. And were you involved in making any of the

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1 phone calls relative to what -- to the reason why Mr. 2 Ketterer was there?

MR. HEDRIC: objection.

THE COURT: sustained.

MR. HEDRIC: Thank you. Q. Can you tell me what you observed when Mr. Ketterer was approached by the officers of the Hamilton Police Department? A. Yes, I heard some noise in the back. I went to the back of the garage, and I heard him asking me his name through the garage door. I was inside the building. Q. And anything else? A. I heard him arrest him. That was it. Q. Did you see anything? A. No, I was inside the building. There was no window. Q. You said you had contact with him on February 24th; is that correct?

A. Yes.

Q. "Him" being Mr. Ketterer?

A. Yes. Q. Can you tell me what time you had that contact with him? A. Earlier in the afternoon he came by, and he came back by a second time that day. And i don't know

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the news program? A. I believe so. Q. And what did you tell them? A. I just told them that Joe Bob had came to my place the night before, and he came in and knocked on the door. And I let him in. And he was carrying a bag like a sheet, ind had a bunch of stuff wrapped inside of it. And he had on some gloves that had blood on them. And he came in, and I asked him, asked him what's going on. And he told me that he had robbed somebody and killed them. And I didn't really believe him because he had been drinking a lot. And the next day when I saw the news it made me believe otherwise, of course. And that's basically it. Q. That's all you said, nothing more, nothing less? A. Might have said more or less. I don't recall. Q. I'm going to hand you what's been labeled Defendant's Exhibit B, and I'm going to tell you that's a search warrant that contains information that you purportedly supplied to Hamilton PD, and I want you to start reading there, and then stop about halfway down on that page, and tell me when you are done.

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1 Q. Is that because you didn't believe he was 2 the man that actually did it? A. Pardon me? Q. is that because you didn't believe he was involved, right? A. At that point i did believe it, yes. Q. But you weren't afraid to get in a car with him?

A. No. Q. what car was that? A. It was my car. It was a green Pontiac. Q. what did he say to you?

MR. HEDRIC: Objection.

THE COURT: sustained.

Q. what did you ask him? A. I directly asked him, I said, Joe Bob, I said, I want to ask you a question, and i want you to tell me the truth. And he said, okay. And I said, did you really kill somebody? And he said, yes, I did. And then he -- I said, but 7oe Bob, I said, I seen the news and there was two people killed. And he didn't make any comment on that. He told me that he only killed one old man. And he told me the details how he did it. Q. Did you tell the police the details? A. Yes.

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1 Q. what did he say? 2 MR. HEDRIC: objection, in the affidavit. MR. PAGAN: Goes to the information that the Hamilton Police supplied to the court. I don't think that the details are in the affidavit. So it creates a question as to whether or not it's reliable.

THE COURT: overruled. Q. what details did he tell the Hamilton PD? A. He told me that he hit him in the head with a frying pan, and stabbed him in the neck with a pair of scissors, I believe, he said he used. And he still wasn't dead, so he put his foot in his chest until he stopped breathing. Q. Did he say anything else? A. That was it. Q. Did he say that anybody else was involved? A. No, he didn't. Q. And this contact you that had with him on the 24th when you made observations, what time was it? A. Pardon? Q. on the 24th the day before you saw the news program when you saw -- A. when 7oe Bob first came to my place with the bag of stuff?

autler county official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 TRANSCRIPT PAGES April 4, 2003 Hearing 358

Q. was it your belief that the interview was going badly? MR. HEDRIC: objection.

THE COURT: sustained. Q. Was it your impression from what information you got from Detective smith that the interview was going badly? MR. HEDRIC: objection.

THE COURT: 5ustained. Q. when you went in, what was the first thing to occur? A. Ask me again. I was coughing. Q. when you went in, what was the first thing that you observed to occur? A. Detective Rogers was talking to Don Ketterer. Q. okay. And had you been in the Hamilton police division long enough to know how long Mr. Ketterer was in that interview room? A. Yes, because i actually brought him to headquarters somewhere around 7:30 p.m. on, I guess, the day before the 25th. And I wasn't there the whole time. I left shortly after that. And when I left, he was in the interview room. And when i came back out, he was in the interview room.

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1 Q. so we are talking seven hours later he was 2 still there? 3 A. I believe so. 4 Q. And you were involved in, and I'm -- I don't 5 mean to use legalese here, but you were involved in his 6 apprehension at 706 East Avenue on the 25th? 7 A. Didn't apprehend him. 8 Q. when he was transported from 706 East Avenue 9 to the police division? 10 A. I transported him, yes, sir. 11 Q. And you and Detective Rogers were the first 12 officers to make contact with him there? 13 A. That's correct. 14 Q. And when you first made contact with him, 15 were you able to observe his demeanor?

16 A. Yes. 17 Q. And did you believe him to be under the 18 influence of toxicants at that time? 19 A. I smelled the odor of alcohol, and his 20 speech was somewhat on the slurred side, but he was 21 standing erect, and wasn't leaning onto the building that 22 he was next to. He wasn't swaying in the breeze, so to 23 speak. He was drinking, but he seemed to have control of 24 him se lf . 25 Q. Did he have bloodshot eyes?

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1 A. He had glasses on, the same ones he has now. 2 I couldn't really see his eyes. Q. Did he have a ruddy complexion? A. i think he pretty much always has a ruddy complexion. Q. You were a street officer prior to being a detective? A. Yes, sir. Q. You have had arrests for DC intoxication? A. Yes. Q. More than one? A. Yes. Q. More than ten? A. Yes. Q. More than 100? A. Probably. Q. okay. How about DUI arrests, have you ever been involved in any of those? A. Yes. Q. And you have -- besides that, and investigating crimes and just being on the street, do you have experience with relating to intoxicated people?

A. Yes. Q. And have you used intoxicants on your own in the past alcohol, for example?

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1 A. Yes. 2 Q. And based upon those experiences, did you 3 have an opinion about whether or not Donald Ketterer was intoxicated on 2/25/2003?

A. Yes, I do. Q. And what is that opinion? A. i think that when I first approached him, I felt that he was intoxicated. Q. HOW was it that you were able to get him from 706 East Avenue into your cruiser or to your unmarked car, whatever it was? A. I asked him to come to headquarters with me so I could talk to him about something. Q. Did you observe him to be patted down? A. Yes, because we asked him if we could pat him down to make sure he didn't have weapons on his person, and he consented. Q. Who did the pat down? A. Both Detective Rogers and myself, I believe. Q. And when was he asked about his willingness to go to Hamilton PD, at what point in this encounter? A. we approached him at the back door and basically introduced ourselves, and told him we would like to talk to him about something. And so it's almost pretty immediate -- he was hesitant to come up, if we

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1 And because I'm not going to -- I'm not one for 2 words, but let's see, Your Honor -- I'm sorry. I go

3 blank sometimes. I thought that's why I haven't 4 understood a word -- with all due respect, i haven't 5 understood a word you all have said this morning. 6 Actually, about the past nine months or so, I haven't -- I've just picked up on little bits and pieces. Also, in the past nine months -- I think I just jumped the tracks again on where I was, but if -- I'm pretty sure they document or however you put that when your lawyers come to see you at the county jail. And between my two lawyers put together, they haven't spent one hour with nie over there on my defense. I don't know if you got a copy of the letter. I finally found out if

you are to address the .7udge, you are to go through Clerk of Courts. I found out that was the chain of command, so that's what I did. And I got a copy of the

letter here. I spoke to Chris Pagan. I'm not even going to go into the conversation we had over the phone. My understanding was eight or nine months ago my worse scenario would be 30 to life or something. And my best scenario would be not guilty by reason of insanity, and

I'd spend 10 or 15 years until they fix whatever is broke.

TRACY D. GREENE, RMR (513)785-6540 7

1 Then I don't see Mr. Pagan for three months or so. 2 I think i've only seen Mr. Howard one time over at the 3 county in over nine months. I could be mistaken, but 4 they got it documented over there. I'm pretty sure I've 5 seen him one time, and that was with Chris Pagan. And 6 he kept asking me if I had a problem with him. I felt 7 -- I felt kind of threatened. of course, I didn't feel 8 he was going to jump out of his seat and hit me. 9 The reason he said that is because I was 10 communicating with Chris -- Mr. Pagan. I probably 11 jumped track again, but I was communicating with Chris 12 -- Mr. Pagan because I felt we were communicating 13 better. 14 And yes, I do have a problem with Mr. Howard 15 because I felt this plea should have been changed way, 16 way before now because there ain't no one can tell me 17 any different that with what went on in the media, I was 18 the number one suspect on the double homicide on Harmon, 19 which I've been cleared of. That's probably 20 irrelative (sic). I think once someone sees that or 21 hears it for six months, it is somewhere still back in 22 that mind. 23 And now for me to change my plea to the way I 24 originally wanted it, nine months and three days 25 later -- you set a $4 million bail. At no time did they

TRACY D. GREENE, RMR (513)785-6540 TRANSCRIPT PAGES January 5, 2004 Hearing 7

1 depending on what day we get the report, but 2 certainly within 48 hours. 3 THE COURT: And you need to tell Dr. Hopes 4 the problem with the time. we are set to start the last week in January, so that's not very far away. And Dr. Hopes does do the interview and makes the report on a rapid basis I have seen in the past. MR. PAGAN: we promise to keep the Court and the prosecutor apprised of time schedules so that nobody is surprised.

MR. HEDRIC: Judge, obviously I will get a

copy of the competency report. THE COURT: You will get a copy of the competency report, yes. Need to tell Dr. Hopes that the issue on not guilty by reason of insanity is to be sealed and delivered to the Court copied to you.

MR. HOWARD: Do you want us to do the entry?

MR. HEDRIC: I'm not going to have a chance.

THE HOWARD: we will do the entry, Judge.

THE COURT: One other issue was Mr. Ketterer asked to fire Greg Howard, and the Court is going to overrule that.

MR. HOWARD: Judge, I do have one other

Butler County official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 TRANSCRIPT PAGES January 20, 2004 Hearing 67

1 transcripts of the grand jury proceedings

2 under case No. CR 03-06-0824.

3 THE COURT: But it was not this case;

4 is that correct?

5 MR. HOWARD: Not this case, 7udge.

6 That deals with Donald Williams who was a

witness in this case, a potential witness in

this case.

MR. PAGAN: Could we take a two-minute

break? We had a 3:00 hearing on another

capital case.

JUDGE SPAETH: Is it possible that

they we could take a break? I'm in the middle

of a jury trial. if they don't use this

window, now it's not going to get

accomplished. Maybe ten minutes.

THE COURT: Ten minutes.

(Thereupon a recess was taken.)

THE COURT: Some motion somebody was

going to give you a copy of.

MR. HOWARD: Well, I'll give you my

copy, Judge. As I was saying before, we're asking for the grand jury transcripts of case numbers CR 03-06-0824, which is a case that was filed BUTLER COURT OF COMMON PLEAS Katherine H. Depperman, RPR (513)785-6596 68

1 on Donald Williams. This case is bound over

2 from the Hamilton Municipal Court back in

3 April of this year on charges of carrying a

4 concealed weapon as well as improper handling

5 of a firearm in a motor vehicle. And the case

6 was presented to the grand jury, and after

presentation, the felony charge of carrying a

concealed weapon was no billed and the

misdemeanor charge is certified back to the

Hamilton Municipal Court for prosecution

there.

As this Court may recall, Mr. Williams

is a material witness in this case, a very

important witness in this case we feel for the

State of Ohio, because he is the person that

allegedly gave information to Agent Lambert

from the Butler County sheriff's office in

regard to the death of Mr. sanders, as well as

the items which were supposedly taken from his

home. At that time, as this case was pending and at the time he provided that information to Agent Lambert, Mr. Williams also had pending felony charges in the Hamilton Municipal court as a result of a search BUTLER COURT OF COMMON PLEAS Katherine H. Depperman, RPR (513)785-6596 TRANSCRIPT PAGES January 28, 2004 Hearing 29

BY MR. HEDRIC: Q. Good morning, ma'am. if you could state your name and address. A. Lisa Lawson, 1285 Shuller Avenue. Q. City of Hamilton?

6 A. Yes. Q. And I want to take you back to February of this year of 2003, excuse me, and ask -- or on the 24th, 25th of February, were you working at Cindy's Pub?

A. Yes. Q. And what was your job at cindy's Pub? A. Bartender. Q. And did you have occasion to see someone by the name of ]oe Bob or Grasshopper?

MR. PAGAN: stipulate to identification.

MR. HEDRIC: Thank you, counsel. Q. Did you happen to see the gentleman seated next to counsel in the bar on that occasion, 25th of February? A. Yes, I did. Q. okay. And when was the first time you saw that witness or that defendant? A. Around 4:00. Q. okay. And were you working at that time? A. No, I was not.

autler County official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 30

Q. And what were you doing at the bar if you weren't working? A. I walked the girl that lives downstairs from me to work. Q. so you were just in there socializing? A. Yes. Q. And did you see the defendant at that time? A. Yes, I did. Q. And could you tell me what he was wearing? A. He had on a long black leather coat and toboggan and blue glasses and --

Q. similar to the ones he's wearing today? A. Yes.

Q. And at some point in time, did you leave the bar that afternoon? A. Yes. Q. Did you ever come back? A. Yes, I came back at 7:00 to go to work. Q. okay. And was this defendant still there? A. Yes, he was. Q. And, again, this is on Tuesday the 25th? A. Yes. Q. And at some point in time, did anything unusual happen in regard to this defendant and that -- when you were working at the bar?

Butler County official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 40

1 Q. And when you came back, this was three hours 1 later?

3 A. Yes. 4 Q. He was at the same place? 5 A. Yes. 6 Q. And sitting there at the bar? 7 A. Yes.

Q. And at that point in time, did you have or 9 render a different opinion about his level of 10 intoxication?

11 A. Yes. 12 Q. And what was that opinion? 13 A. i would not have served him. 14 Q. He was that intoxicated?

15 A. Yes. 16 Q. And this was 7:00 on 2/25?

17 A. Yes. 18 Q. And, in fact, he was so intoxicated that it 19 was required for him to get a cab out of there?

LU A. Yes. 21 Q. And he fumbled with the belongings that he 22 had to the extent that he fell on the floor?

23 A. Yes. 24 Q. And you would agree with me that that is 25 indicative of intoxication as well?

Butler County official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 a 65

under oath as follows:

DIRECT EXAMINATION

BY MR. HEDRIC: 4 Q. okay. Sir, again, as the bailiff said, 5 please keep your voice up so the judges can hear you. 6 Sir, state your name and your address. A. My name is Charles Farthing. I live at 63 Highland Avenue, New Miami.

JUDGE ONEY: Spell that last name, please.

THE WITNESS: F-a-r-t-h-i-n-g. JUDGE ONEY: Thank you. Q. And how old are you, sir? A. I'm 23. Q. And I'm going to take you back to on or about February 25th of the last year of 2003, and ask if you were driving a cab?

A. Yes, I was. Q. And who were you driving for? A. All Around Cab. Q. In the early evening hours of February 25th, did you have occasion to go to Cindy's Pub and pick up a fare? A. Yes, I did. Q. And did you go there in your capacity as a cab driver?

Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532 TRANSCRIPT PAGES January 29, 2004 Hearing 222

see what time we will reconvene. MR. HOWARD: Thank you, Your Honors.

MR. HEDRIC: Thank you, Your honors. (Recess was taken from 10:18 to 11:39)

JUDGE ONEY: The court has deliberated and reviewed the evidence and pursuant to the guidelines of Criminal Rule 11 and ohio Revised Code 2945.06 and under the direction of the State of Ohio y steffan 31 Ohio State, 3rd, 111, 1987 and State V Holloway, 38 Ohio state, 3rd, 239, 1988, has reached the unanimous decision that we find that the state's evidence proved beyond a reasonable doubt all the elements in Count one of aggravated murder purposely causing the death of Lawrence sanders while committing or attempting to commit the offense of aggravated robbery in 17 violation of 2903.01(B) proof beyond a reasonable 18 doubt specification One, Two, Count one that the 19 offense of -- in count one was committed for the 20 purpose of escaping detention, apprehension, 21 trial, punishment while committed, and while 22 another offense was committed, to wit, felonious 23 assault and being committed against Lawrence 24 Sanders. And we also find that the evidence 25 proved beyond a reasonable doubt specification Two

autler county official Court Reporter Linda M. Tuttle, RMR, (513) 785-6532 TRANSCRIPT PAGES February 2, 2004 Hearing 17

in the weeks proceeding the homicide, but what I would like to go to now is mental illness. Dr. Hopes, based upon the history that you described to this court, the clinical interview, collateral sources that you have viewed, the testing you performed and based upon your 6 education, training and experience, have you rendered an opinion as to whether or not Mr. Ketterer suffered from a mental illness or defect?

A. Yes. Q. Is that opinion based upon a reasonable degree of psychological certainty?

A. Yes. Q. would you state to the panel what your opinion is? A. It's my opinion that he does have a severe mental disease or defect. He suffers from bipolar disorder, and he has symptoms of both manic and depressive disorders. He also has features of personality disorders. Q. We will get to the personality disorders in a little bit. Let's focus on the mental orders first. You have diagnosed or given an opinion that he suffers from bipolar disorder. Does it have any associated features with it or not? A. Yes, I believe that he suffers from bipolar

Y Butler county official court Reporter Linda M. Tuttle, RMR, (513) 785-6532