State v. Foust ( 2004 )

[Cite as State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006.]
THE STATE OF OHIO, APPELLEE, v. FOUST, APPELLANT.
[Cite as State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006.]
Criminal law — Aggravated murder — Death penalty upheld, when.
(No. 2002-1350 — Submitted October 12, 2004 — Decided December 29, 2004.)
APPEAL from the Court of Common Pleas of Cuyahoga County, No. CR-406021.
__________________
O’DONNELL, J.
{¶ 1} In this appeal, defendant-appellant, Kelly Foust, raises 13
propositions of law. Finding none meritorious, we affirm his convictions. We
have independently weighed the aggravating circumstances against the mitigating
factors and have compared his sentence to those imposed in similar cases, as R.C.
2929.05(A) requires. As a result, we affirm Foust’s sentence of death.
{¶ 2} During the early morning of March 31, 2001, Foust broke into the
home of 54-year-old Jose Coreano in Cleveland. Foust entered Jose’s first-floor
bedroom and killed him with a hammer blow to the head. Foust then went
upstairs and repeatedly raped Jose’s 17-year-old daughter, Damaris Coreano.
After stealing items from the house, Foust tied Damaris to the bathtub and set the
house on fire; despite her situation, Damaris managed to escape.
{¶ 3} A three-judge panel convicted Foust of the aggravated murder of
Jose, the kidnapping, rape, gross sexual imposition, and attempted murder of
Damaris, and aggravated burglary, aggravated robbery, and aggravated arson.
Foust was sentenced to death. To establish Foust’s guilt, the state introduced
Foust’s pretrial confession, testimony from Damaris identifying Foust as her
assailant, and the murder weapon containing Foust’s DNA.
SUPREME COURT OF OHIO
State’s case
{¶ 4} Foust was distraught after his relationship with his girlfriend,
Janira Acevedo, came to an end. Damaris and her sister, Cheyla Coreano, were
friends with Acevedo. After Foust and Acevedo broke up, Acevedo began
staying at the Coreano home.
{¶ 5} Sometime before March 28, 2001, Foust broke into the Coreano
home. On March 28, Jose, Cheyla, and Acevedo went to the police, seeking a
restraining order against Foust. They did not receive a restraining order, but the
police offered to send a patrol car to their residence. Jose, however, refused this
offer.
{¶ 6} During the early morning hours of March 31, Foust had been
drinking beer and wine and “getting pretty wasted.” At some point, Foust went
looking for Acevedo at a home on Sackett Avenue, where he thought she was
staying. Foust peeked into a window of that home and realized that Acevedo was
not there. Foust later explained, “I got really mad because [Acevedo] told me she
stays there every night and doesn’t go anywhere.”
{¶ 7} Foust then went to the Coreano home and gained entry through an
open basement window. Foust found Damaris sleeping upstairs but did not locate
Cheyla or Acevedo. Foust then went to Jose’s bedroom on the first floor and
struck Jose on the head with a claw hammer.
{¶ 8} Foust returned to the second-floor bedroom where Damaris was
sleeping and got on top of her. When she awakened, Foust put a knife to her
neck, shoved her face into the pillow, and ordered her to lie on her stomach. She
tried to grab the knife, but Foust told her not to be a hero because “in reality
heroes die.” Foust asked Damaris for “the money,” and she said, “[W]hat
money?” Foust threatened to kill her if she did not tell him where the money was,
and as a result, she said that she had a dollar and told him where he could find it.
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{¶ 9} Foust asked Damaris if she was a virgin. Damaris told Foust that
she was not, hoping that he would leave her alone. Foust removed Damaris’s
clothing and tied her hands behind her back. Foust then ordered her to perform
oral sex. When she refused, he pointed his knife at her neck and asked her if she
wanted her father to live. Damaris then performed oral sex on him.
{¶ 10} After this, Foust untied her hands and ordered her to lie on her
back. He vaginally raped her multiple times and also touched her breasts and put
his fingers on her vagina. She saw his face during these rapes. When he finished,
he ordered her not to move and left the bedroom.
{¶ 11} Shortly thereafter, Foust returned to the bedroom and vaginally
raped her again. Damaris asked why he was “doing this to a Christian,” and he
replied that if she was a real Christian, she would forgive him. Foust then ordered
her to get on her knees and pray out loud for him. While on her knees, Damaris
prayed that God would help him realize what he was doing. Foust told Damaris
to shut up, put her back on the bed, and raped her again.
{¶ 12} After that, Foust took Damaris into her sister’s bedroom. Although
Foust had placed a shirt over her head, Damaris saw Foust take several things
from her sister’s room. Foust then forced Damaris into the bathroom and tied her
hands and feet together with shoestrings. He then tied Damaris to the bathtub leg
with a chain belt, told her not to move, and left the bathroom.
{¶ 13} Later, Foust returned to the bathroom and accused her of moving
around. He said, “[Y]ou think I’m playing with you,” and cut one of her braids
off. Foust also touched her vagina with his knife and threatened to slice her open
if she moved.
{¶ 14} While Damaris was tied up in the bathroom, Foust started fires in
Jose’s downstairs bedroom and in the upstairs bedrooms of Cheyla and Damaris.
Afterwards, he took Jose’s car keys, left the house, and drove Jose’s car about two
blocks, parked it on the street, and walked to a friend’s house.
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{¶ 15} While tied up in the bathroom, Damaris smelled smoke, managed
to move the shirt from her face, and saw that the house was on fire. She freed
herself by wiggling the belt loose from the bathtub leg. She then crawled into her
bedroom, maneuvered herself onto her bed, and let the fire on her mattress burn
the shoelaces off her ankles and wrists. Damaris put the fire out in her room and
went downstairs to look for her father but could not find him. She then left the
smoke-filled house and ran to a neighbor’s home for help.
{¶ 16} Police and firefighters arriving at the scene found the home
engulfed in flames. Jose’s body, burned beyond recognition, was found on his
bed. Damaris told Patrolman William Hyland that “Kelly” had attacked her and
started the fire. Although she was unsure of his last name, she thought it was
“Foster or something like that.” Hyland noticed that Damaris had shoelaces tied
to her wrists.
{¶ 17} After the fire was extinguished, police and fire personnel began
collecting evidence from the house. Lt. Victor Gill, an arson investigator,
determined that the fire had originated in the first-floor bedroom and the two
second-floor bedrooms. Investigations revealed two spent matches: one next to a
box of matches on the kitchen floor and another on the carpet next to Damaris’s
bed. Lt. Gill concluded that “there were at least three fires and each [had been]
separately and intentionally set.”
{¶ 18} In the basement, police found Foust’s left thumbprint on a water
pipe near the basement window. During a search of the house on April 6, 2001,
police found a claw hammer underneath Damaris’s bed.
{¶ 19} After identifying Foust as the primary suspect, police began
searching for him. On April 7, 2001, the police arrested Foust, and around 10:30
a.m., Detectives Denise Kovach and Michael Cipo interviewed Foust at the police
station. After waiving his Miranda rights, Foust confessed to breaking into the
home, hitting Jose, and raping Damaris. However, Foust claimed that he “didn’t
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intentionally want to do any harm” and said, “I really don’t know what I was
doing, just trying to find out where Janita [sic, Janira] was.”
{¶ 20} At trial, Julie Heinig, a DNA analyst, testified that a preliminary
examination of the hammer revealed blood on the hammer claw. According to
Heinig, “The DNA profile obtained from the blood on the hammer matched the
DNA profile of Jose Coreano.” The handle of the hammer was also tested and
revealed a DNA mixture to which Foust could not be excluded as a contributor.
{¶ 21} Joseph Serowik, a scientific examiner for the Cleveland Police
Department, examined a rape kit containing blood, hair, and swab samples
obtained from Damaris. Examination of the vaginal swab sample revealed sperm
cells and seminal fluid. Testing of rectal swabs showed the presence of seminal
fluid and blood. Due to administrative problems at the lab, however, DNA testing
was not conducted on this evidence.
{¶ 22} Dr. William Bligh-Glover, a deputy coroner for Cuyahoga County,
performed an autopsy on Jose Coreano and concluded that Jose had fourth-degree
burns over 100 percent of his body and had “suffered blunt force trauma to his
head with soft tissue skull and brain injuries.” He further testified that the
hammer found in Damaris’s bedroom could have caused the circular fracture on
Jose’s skull. Dr. Bligh-Glover concluded that Jose’s death was caused by the
blunt impact to the head and that the burns occurred after death. He reached this
conclusion because no carbon monoxide had been found in Jose’s blood, and high
levels of carbon monoxide would normally be found in the blood of a person who
had died from smoke inhalation. Also, he found no soot in Jose’s lungs.
{¶ 23} The defense presented no evidence during the guilt phase of trial.
Trial result
{¶ 24} The state charged Foust with one count of aggravated murder,
alleging he had caused Coreano’s death with prior calculation and design, five
counts of aggravated murder, alleging he had caused Coreano’s death while
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committing a felony, and 20 related felony counts. Foust waived his right to a
jury trial, and a three-judge panel heard his case. He pleaded not guilty to all
charges. The following chart summarizes the charges and the court’s findings and
sentence:
Count Specifications Verdicts Sentence
(count and
specifications)
1. Aggravated R.C. 2929.04(A)(5), Not guilty of 15 years to
murder of Coreano course of conduct, and aggravated life
(murder committed five (A)(7) murder; guilty
with prior specifications: of lesser
calculation and aggravated burglary, included
design) aggravated robbery, offense of
kidnapping, rape, and murder
aggravated arson
2. Aggravated R.C. 2929.04(A)(5), Guilty Death
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
aggravated specifications:
burglary) aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
3. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
aggravated robbery) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
4. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
kidnapping) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
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5. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
rape) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
6. Aggravated R.C. 2929.04(A)(5), Guilty
murder of Coreano course of conduct, and
(felony murder— five (A)(7)
aggravated arson) specifications:
aggravated burglary,
aggravated robbery,
kidnapping, rape, and
aggravated arson
7. Attempted Guilty 10 years
murder of Damaris
Coreano
8. Aggravated Guilty 10 years
burglary
9. Aggravated Not Guilty
robbery
10. Aggravated Guilty 10 years
robbery
11. Kidnapping Guilty 10 years *
(Damaris Coreano)
12. Rape (Damaris Guilty 10 years **
Coreano)
13. Rape (Damaris Guilty 10 years **
Coreano)
14. Rape (Damaris Guilty 10 years **
Coreano)
15. Rape (Damaris Guilty 10 years **
Coreano)
16. Rape (Damaris Guilty 10 years **
Coreano)
17. Rape (Damaris Not Guilty
Coreano)
18. Rape (Damaris Not Guilty
Coreano)
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19. Rape (Damaris Not Guilty
Coreano)
20. Gross sexual Guilty 1 year **
imposition
(Damaris Coreano)
21. Gross sexual Guilty 1 year **
imposition
(Damaris Coreano)
22. Gross sexual Guilty 1 year **
imposition
(Damaris Coreano)
23. Aggravated Not Guilty
arson (risk of harm
to Jose Coreano)
24. Aggravated Guilty 10 years
arson (risk of harm
to Damaris
Coreano)
25. Aggravated Not Guilty
arson (risk of harm
to fireman)
26. Aggravated Guilty 10 years
arson (physical
harm to occupied
dwelling)
Various sexual- Not Guilty
motivation and
sexual-predator
specifications
* Sentence for kidnapping (Count 11) to be served consecutively with sentences
for rape (Counts 12-16), gross sexual imposition (Counts 20-22), and attempted
murder (Count 7).
** Sentences for rape (Counts 12-16) and gross sexual imposition (Counts 20-
22) to be served concurrently with one another.
{¶ 25} Foust now appeals to this court as a matter of right.
Pretrial issues
{¶ 26} Missing elements in the indictment. In proposition of law II,
Foust argues that the indictment is defective because the felony-murder counts
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and the R.C. 2929.04(A)(7) specifications do not set forth every element of the
charged offenses.1 Foust also claims that his indictment for aggravated burglary
in Count 8 is defective because the count fails to specify the offense that Foust
intended to commit inside the house.
{¶ 27} Foust never challenged the sufficiency of the indictment before or
during trial. Under Crim.R. 12(C), “[d]efenses and objections based on defects in
the indictment” must be raised before trial. As stated in Crim.R. 12(H), “[f]ailure
by the defendant to raise defenses or objections” within the time required “shall
constitute waiver of the defenses or objections,” although the court may grant
relief from the waiver. Accord State v. Williams (1977), 51 Ohio St. 2d 112, 117,
5 O.O.3d 98, 364 N.E.2d 1364; State v. Carter (2000), 89 Ohio St. 3d 593, 598,
734 N.E.2d 345.
{¶ 28} No reason exists to grant Foust relief from his failure to object. In
fact, no deficiency in the indictment exists. Under Crim.R. 7(B), an indictment
“may be made in ordinary and concise language without technical averments or
allegations not essential to be proved. The statement may be in the words of the
applicable section of the statute, provided the words of that statute charge an
offense, or in words sufficient to give the defendant notice of all the elements of
the offense with which the defendant is charged.” See, also, State v. Childs
(2000), 88 Ohio St. 3d 558, 564, 728 N.E.2d 379.
{¶ 29} Felony-murder counts. The indictment language for the
aggravated felony-murder counts follows the wording of R.C. 2903.01(B), the
felony-murder provisions of the aggravated-murder statute. Thus, these counts
were properly worded in the indictment. See State v. Murphy (1992), 65 Ohio
St.3d 554, 583, 605 N.E.2d 884; State v. Landrum (1990), 53 Ohio St. 3d 107,
119, 559 N.E.2d 710. Moreover, the indictment included separate counts for the
1. Foust concedes that the R.C. 2929.04(A)(5) course-of-conduct specifications are correctly
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underlying felonies – Counts 8 through 19 and Counts 23 through 26 – and these
counts set forth the elements for these offenses. Reading the felony-murder
counts in pari materia with the related felony counts provided ample notification
of the elements of the underlying felonies—aggravated burglary, aggravated
robbery, rape, kidnapping, and aggravated arson—that the state had to prove. See
State v. D’Ambrosio (1993), 67 Ohio St. 3d 185, 197, 616 N.E.2d 909.
{¶ 30} R.C. 2929.04 specifications. R.C. 2941.14(C) governs the form of
death-penalty specifications in indictments and provides that “[t]he aggravating
circumstance may be stated in the words of the subdivision in which it appears or
in words sufficient to give the accused notice of the same.” Here, the R.C.
2929.04(A)(7) specifications in the indictment tracked the language of R.C.
2929.04(A)(7), and each of the specifications named the underlying felonies that
Foust allegedly committed. See State v. Joseph (1995), 73 Ohio St. 3d 450, 456,
653 N.E.2d 285 (R.C. 2941.14[C] “clearly provides that the specification is
sufficient if the accused knows which subsection, or which aggravating
circumstance * * * listed in R.C. 2929.04[A] has been alleged”). Thus, we find
no defect in the R.C. 2929.04(A)(7) specifications.
{¶ 31} Aggravated-burglary count. The state also correctly presented
the aggravated-burglary charge in the indictment—Count 8. The wording of the
indictment tracked the language for aggravated burglary in R.C. 2911.11 and did
not need to allege the particular felony that Foust had intended to commit. See
State v. Frazier (1995), 73 Ohio St. 3d 323, 331, 652 N.E.2d 1000; State v.
Waszily (1995), 105 Ohio App. 3d 510, 516, 664 N.E.2d 600, abrogated in part on
other grounds by State v. Fontes (2000), 87 Ohio St. 3d 527, 721 N.E.2d 1037.
{¶ 32} We also reject Foust’s constitutional arguments. An indictment
meets constitutional requirements if it, “first, contains the elements of the offense
charged in the indictment.
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January Term, 2004
charged and fairly informs a defendant of the charge against which he must
defend, and second, enables him to plead an acquittal or conviction in bar of
future prosecutions for the same offense. * * * ‘Undoubtedly the language of the
statute may be used in the general description of an offence, but it must be
accompanied with such a statement of the facts and circumstances as will inform
the accused of the specific offence, coming under the general description, with
which he is charged.’ ” (Emphasis added.) Hamling v. United States (1974), 418
U.S. 87, 117-118, 94 S. Ct. 2887, 41 L. Ed. 2d 590, quoting United States v. Hess
(1888), 124 U.S. 483, 487, 8 S. Ct. 571, 31 L. Ed. 516. Review of Foust’s
indictment shows that the aggravated-murder counts, the R.C. 2929.04(A)(7)
specifications, and the aggravated-burglary count met these criteria.
{¶ 33} Nevertheless, Foust argues that Ring v. Arizona (2002), 536 U.S.
584, 122 S. Ct. 2428, 153 L. Ed. 2d 556, and Apprendi v. New Jersey (2000), 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435, require that every element of an
offense be set forth in the indictment. In Apprendi, the Supreme Court held that
the Sixth Amendment does not permit a defendant to be “expose[d] * * * to a
penalty exceeding the maximum he would receive if punished according to the
facts reflected in the jury verdict alone.” (Emphasis sic.) Id. at 483, 120 S. Ct.
2348, 147 L. Ed. 2d 435. In Ring, a capital case, the Supreme Court held that a
trial judge may not make findings of fact on an aggravating circumstance
necessary to impose the death penalty, as this determination is within the province
of the jury. Ring, 536 U.S. at 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556. However,
neither case stands for the proposition that there is a constitutional requirement
that every element of a criminal offense must be set forth in an indictment.
{¶ 34} Foust also argues – citing Esparza v. Mitchell (C.A.6, 2002), 310
F.3d 414 – that an indictment of a capital specification must include all the
essential elements necessary to establish the specification. In Esparza, the grand
jury returned an indictment on an R.C. 2929.04(A)(7) specification that failed to
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allege that he was the principal offender or, if not the principal offender, that he
had acted with prior calculation and design. However, in Mitchell v. Esparza
(2003), 540 U.S. 12, 124 S. Ct. 7, 157 L. Ed. 2d 263, the Supreme Court held that
the failure to allege that the defendant acted as the principal offender did not
constitute a fatal error.
{¶ 35} Based on the foregoing, we reject Foust’s argument that there is a
constitutional requirement that the indictment specify every element of the
offense in either the felony-murder counts or the R.C. 2929.04(A)(7)
specifications.
{¶ 36} Finally, Foust has not shown that he was prejudiced in the defense
of his case or that he would have proceeded differently if each of the felony-
murder counts, the R.C. 2929.04(A)(7) specifications, and the aggravated-
burglary count had been worded differently. See State v. Joseph, 73 Ohio St. 3d at
457, 653 N.E.2d 285.
{¶ 37} In summary, we find that the issue was waived and there was no
plain error because the wording of the felony-murder counts, the R.C.
2929.04(A)(7) specifications, and the aggravated-burglary count in the indictment
were not defective. Thus, we overrule proposition II.
{¶ 38} Jury waiver. In proposition of law I, Foust contends that his
waiver of a jury trial was not voluntary and intelligent, and was hence invalid,
because the trial court did not inform him that (1) if he was tried by a jury and
found guilty of a capital crime, the jury would recommend his sentence, (2) a
jury’s vote for a death sentence must be unanimous, and (3) the waiver would be
valid for both the guilt phase and the penalty phase of trial.
{¶ 39} Foust signed a jury waiver, which was filed and journalized and is
in the record. The written waiver contains the following acknowledgment: “I,
Kelly Foust, the defendant in the above cause, hereby voluntarily and knowingly
waive and relinquish my right to a trial by jury, and elect to be tried by a panel of
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January Term, 2004
three judges of the court in which said cause may be pending. I fully understand
that under the laws of this state I have a constitutional right to a trial by jury.”
{¶ 40} After Foust signed the jury waiver, the trial court conducted the
following colloquy with him:
{¶ 41} “The Court: Mr. Foust, this is your signature on this jury waiver;
correct?
{¶ 42} “The Defendant: Yes, sir.
{¶ 43} “The Court: Okay. Your attorneys have advised you that you
have a right to a jury of 12 men and women; correct?
{¶ 44} “The Defendant: Yes, sir.
{¶ 45} “The Court: And obviously, then, they advised you that you can
waive that right and have your case tried by three judges instead of a jury. You
understand that, sir?
{¶ 46} “The Defendant: Yes, sir.
{¶ 47} “The Court: Okay. Did anybody put any pressure on you to give
up your jury right and have this tried by three judges instead of a jury?
{¶ 48} “The Defendant: No.
{¶ 49} “The Court: Okay. Was this your own free-will decision to
do that?
{¶ 50} “The Defendant: Yes.”
{¶ 51} Following this colloquy, the trial court found that Foust’s waiver
was knowingly, intelligently, and voluntarily made.
{¶ 52} A jury waiver must be voluntary, knowing, and intelligent. State v.
Ruppert (1978), 54 Ohio St. 2d 263, 271, 8 O.O.3d 232, 375 N.E.2d 1250. Waiver
may not be presumed from a silent record. However, if the record shows a jury
waiver, the conviction will not be set aside except on a plain showing that the
defendant’s waiver was not freely and intelligently made. State v. Fitzpatrick, 102
Ohio St. 3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 37, citing Adams v. United
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States ex rel. McCann (1942), 317 U.S. 269, 281, 63 S. Ct. 236, 87 L. Ed. 268.
Moreover, a written waiver is presumptively voluntary, knowing, and intelligent.
United States v. Sammons (C.A.6, 1990), 918 F.2d 592, 597; State v. Bays (1999),
87 Ohio St. 3d 15, 19, 716 N.E.2d 1126.
{¶ 53} Although the trial court did not fully advise Foust of all the
implications of his jury waiver, “[t]here is no requirement for a trial court to
interrogate a defendant in order to determine whether he or she is fully apprised of
the right to a jury trial.” State v. Jells (1990), 53 Ohio St. 3d 22, 559 N.E.2d 464,
paragraph one of the syllabus. “The 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.
While it may be better practice for the trial judge to enumerate all the possible
implications of a waiver of a jury, there is no error in failing to do so.” (Citation
omitted.) Id. at 26, 559 N.E.2d 464; see, also, State v. Thomas, 97 Ohio St. 3d
309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 26; State v. Bays, 87 Ohio St. 3d at 20,
716 N.E.2d 1126 (trial court’s failure to explain that a single juror can block a
death recommendation did not invalidate a jury waiver).
{¶ 54} We also reject Foust’s claim that his jury waiver was invalid
because the trial court failed to advise him that the waiver applied to both the guilt
and the penalty phases of trial. The waiver of the right to trial by jury in a capital
case applies to both the guilt phase and the penalty phase of the trial. Contrary to
Foust’s contentions, the record demonstrates that he knew that his waiver applied
to both phases of trial: during a colloquy with counsel after accepting Foust’s
waiver, the court stated, “[W]e will leave the date for December 12th before a
panel of three judges. You should all be aware, in the event any discussions about
a plea to reduced charges should be done, that we still have to convene the three-
judge court in order to take that plea and impose a sentence.” (Emphasis added.)
Thus, the record reflects that all were aware—including Foust—that his waiver of
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a jury trial meant that the three-judge panel would impose sentence during the
penalty phase.
{¶ 55} Further, nothing in the record suggests that Foust’s jury waiver was
not knowingly, intelligently, and voluntarily made. When the trial court accepted
Foust’s written waiver, Foust affirmed that his decision was voluntary. Moreover,
his trial counsel did not request that the trial court ask any further questions or
clarify any of the other rights associated with Foust’s waiver.
{¶ 56} Based on the foregoing, we overrule proposition I.
{¶ 57} Admissibility of confession. In proposition of law IV, Foust
argues an inadequate Miranda advisement because he asserts police did not
advise him that he could request counsel at any time during the interrogation and
that police questioning would stop if he requested counsel. Because of this
alleged failure, Foust contends that his Miranda waiver was not knowingly and
intelligently made and thus his confession should not have been admitted into
evidence.
{¶ 58} However, Foust did not raise these specific issues in the trial court.
Instead, Foust filed a motion to suppress challenging the voluntariness of his
confession based on his youth and his being intimidated by police. Because Foust
did not attack the adequacy of the Miranda warnings before the trial court, he has
waived that issue absent plain error. State v. Peagler (1996), 76 Ohio St. 3d 496,
499-501, 668 N.E.2d 489 (on appeal, a defendant cannot introduce a new basis for
a challenge made at trial). Moreover, no plain error exists because the police
properly apprised Foust of his Miranda rights.
{¶ 59} The record reveals that on April 7, 2001, the police arrested Foust,
and, at that time, Detective Frank Costanzo advised Foust of his Miranda rights.
Foust stated that he understood those rights.
{¶ 60} Around 10:00 a.m. on April 7, at the police station, Detectives
Michael Cipo and Denise Kovach interviewed Foust. Before the interview,
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Detective Cipo again advised Foust of his Miranda rights. Using an advisement-
of-rights card issued by the police department, Detective Cipo advised Foust:
{¶ 61} “You have a right to remain silent. Anything you say can and will
be used against you in Court. You have a right to consult with a lawyer before
answering any questions and to have a lawyer with you during any questioning.
If you cannot afford a lawyer, one will be provided for you free of cost.”
{¶ 62} According to Detective Cipo, there was also a large placard with
these same warnings posted on the wall in the interview room. After being
advised of his Miranda rights, Foust said that he understood his rights and did not
need a lawyer, and then he talked with the police and confessed to the crimes.
{¶ 63} After his oral confession, Foust agreed to provide a written
statement. After the written statement was prepared, but before Foust signed it,
Detective Kovach again read Foust his Miranda rights, using the preprinted
advisement of rights on the first page of the statement. Detective Kovach advised
Foust:
{¶ 64} “Before making any written statement that may be used against
you at the time of your trial, we wish to repeat the instructions issued prior to oral
interrogation; that you have the right to counsel, appointed or retained, before
interrogation, that you have the right to remain silent, and that anything you say
may be used against you. You have the right to have an attorney present while
making this statement.”
{¶ 65} Following this advisement of rights, Foust was asked, “Do you
understand your rights as stated above?” and “Do you care to make any written
statement?” Foust answered yes to both questions, marked his agreement on the
form, and signed his name underneath the advisement of rights. Foust then signed
each page of his written statement. On the last page of his statement, Foust
answered no to the question “Did anyone threaten you or promise you anything to
make this statement?” He answered yes to the question “Having read your
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statement, do you find it to be true?” Foust then signed the last page of his
confession.
{¶ 66} Adequacy of the Miranda warnings. Foust claims that the police
provided him inadequate Miranda warnings because they did not tell him he could
ask for an attorney at any time, including after the questioning began, and that if
he asked for an attorney once the questioning had started, all questioning would
stop.
{¶ 67} Miranda v. Arizona (1966), 384 U.S. 436, 478-479, 86 S. Ct. 1602,
16 L. Ed. 2d 694, requires that before questioning a suspect in custody, law-
enforcement officials must inform the suspect (1) that he or she has the right to
remain silent, (2) that his or her statements may be used against him or her at trial,
(3) that he or she has the right to have an attorney present during questioning, and
(4) that if he or she cannot afford an attorney, one will be appointed.
{¶ 68} The Supreme Court has never insisted that Miranda warnings be
given in the exact form described in that decision. Instead, the court has stated
that “ ‘the “rigidity” of Miranda [does not] exten[d] to the precise formulation of
the warnings given a criminal defendant,’ and that ‘no talismanic incantation [is]
required to satisfy its strictures.’ ” Duckworth v. Eagan (1989), 492 U.S. 195,
202-203, 109 S. Ct. 2875, 106 L. Ed. 2d 166, quoting California v. Prysock (1981),
453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696. “Reviewing courts therefore
need not examine Miranda warnings as if construing a will or defining the terms
of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y]
to [a suspect] his rights as required by Miranda.’ ” Duckworth at 203, 109 S. Ct.
2875, 106 L. Ed. 2d 166, quoting Prysock at 361, 101 S. Ct. 2806, 69 L. Ed. 2d 696.
{¶ 69} Police do not have to provide additional warnings to a suspect
beyond what Miranda requires. Indeed, in State v. Edwards (1976), 49 Ohio
St.2d 31, 39-41, 3 O.O.3d 18, 358 N.E.2d 1051, we found that Miranda warnings
were adequate even though the defendant was not explicitly asked whether he
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wanted an attorney. Similarly, in State v. Dailey (1990), 53 Ohio St. 3d 88, 90-91,
559 N.E.2d 459, Miranda warnings were deemed adequate even though they did
not explicitly refer to “appointment of counsel.”
{¶ 70} Federal courts have also rejected challenges to the adequacy of
Miranda warnings based on the absence of additional warnings. See, e.g., United
States v. Ricks (C.A.6, 1993), 989 F.2d 501, unpublished opinion, 1993 WL
78781 (suspect need not be informed that he has the right to stop answering
questions at any time); United States v. Lares-Valdez (C.A.9, 1991), 939 F.2d 688
(suspect need not be advised of the right to have questioning stopped at any time,
of the option to answer some questions but not others, or that some questions may
call for incriminating responses); United States v. Caldwell (C.A.8, 1992), 954
F.2d 496, 501-504 (suspect need not be explicitly advised of his right to counsel
before and during questioning); United States v. DiGiacomo (C.A.10, 1978), 579
F.2d 1211, 1214 (no express requirement under Miranda to advise suspects of the
right to terminate questioning).
{¶ 71} In this case, the police fully advised Foust of his rights as required
by Miranda. Foust was advised of (1) his right to remain silent (and was warned
that any statement he made could and would be used against him in court), (2) his
right to have a lawyer present prior to and during interrogation, and (3) his right to
have a lawyer appointed at no cost if he could not afford one. However, police
were not required to also advise Foust of his right to ask for a lawyer and stop
questioning at any time after the interrogation was underway. Indeed, “[t]here are
numerous circumstances and ways in which the right to silence may be invoked
and officers could not possibly warn of all of them. Having advised of the
essential rights, the officers are not obliged to warn of any or all of the
circumstances or manners in which the right may be invoked.” United States v.
Alba (D.Conn.1990), 732 F. Supp. 306, 310. Moreover, when he was advised of
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January Term, 2004
his Miranda rights, Foust never asked for a further explanation of them. Thus, the
Miranda warnings Foust received were proper.
{¶ 72} Voluntariness. The “totality of the circumstances” surrounding
Foust’s confession also shows that Foust voluntarily waived his Miranda rights
and that his confession was knowingly, intelligently, and voluntarily made. See
Moran v. Burbine (1986), 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410.
First, the police never subjected Foust to threats or physical abuse or deprived him
of food, sleep, or medical treatment. Nor did the police make any promises to
Foust in return for his cooperation. Foust was in police custody for only two and
one-half hours prior to being interviewed. Furthermore, the interview lasted only
two hours.
{¶ 73} Second, Foust appeared to be mentally alert and not under the
influence of drugs or alcohol at the time of the interview. During the police
interview, Foust stated that he had completed a GED course and had the highest
score in his class. Thus, we find no evidence of police coercion or overreaching
showing that Foust’s confession was involuntary. See State v. Eley (1996), 77
Ohio St. 3d 174, 178-179, 672 N.E.2d 640.
{¶ 74} Based on the foregoing, we overrule proposition IV.
Guilt-phase issues
{¶ 75} Ineffective assistance of counsel. In proposition of law III, Foust
argues that he received ineffective assistance of counsel. Reversal of a conviction
for ineffective assistance of counsel 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; State v.
Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373.
{¶ 76} Failure to challenge Heinig’s expert qualifications. Foust
argues that his counsel provided ineffective assistance by failing to object to Julie
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Heinig’s testifying as a DNA expert. Heinig, a forensic DNA analyst with the
Cuyahoga County Coroner’s Office, conducted DNA analysis of blood found on
the suspected murder weapon, the hammer found underneath Damaris’s bed.
Heinig testified that DNA from the blood matched the DNA of Jose Coreano.
She also testified that a DNA analysis of a swab used to collect matter from the
hammer’s handle showed a “mixture” of DNA from more than one person and
that Foust’s DNA profile was “visible” within this mixture.
{¶ 77} Evid.R. 702(B) provides that a witness may qualify as an expert by
reason of his or her “specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony.” Neither special
education nor certification is necessary to confer expert status upon a witness.
“The individual offered as an expert need not have complete knowledge of the
field in question, as long as the knowledge he or she possesses will aid the trier of
fact in performing its fact-finding function.” State v. Hartman (2001), 93 Ohio
St.3d 274, 285, 754 N.E.2d 1150; State v. Baston (1999), 85 Ohio St. 3d 418, 423,
709 N.E.2d 128.
{¶ 78} Contrary to Foust’s assertions, Heinig qualified to testify as an
expert in DNA analysis. She holds a bachelor of science degree in biology, a
master’s degree in zoology, and a Ph.D. degree in anatomy and cell biology.
Heinig also received six months of training on various testing procedures
involving DNA analysis and has testified as a DNA expert on other occasions.
See State v. Bryan, 101 Ohio St. 3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 32
(Heinig testified that the defendant’s DNA was found in the getaway vehicle);
State v. Fluellen, Cuyahoga App. No. 78532, 2002-Ohio-3262, 2002 WL
1397128, ¶ 14 (Heinig found “well-qualified to serve as an expert in the area of
forensic DNA analysis”). Thus, Heinig possessed the necessary qualifications to
provide expert testimony at Foust’s trial.
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January Term, 2004
{¶ 79} Given the strong presumption that counsel’s performance
constituted reasonable assistance, we find that his defense counsel were not
ineffective for failing to challenge Heinig’s qualifications as an expert witness.
See State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 51;
State v. Hartman, 93 Ohio St. 3d at 297, 754 N.E.2d 1150.
{¶ 80} Failure to object to Heinig’s testimony. Foust contends that his
counsel provided ineffective assistance by failing to object to Heinig’s testimony
because she allegedly did not adequately establish the scientific method used to
conduct DNA testing of the hammer. Heinig testified that DNA material from the
hammer was tested using the Short Tandem Repeat (“STR”) method. Heinig
explained that the STR method examines “13 different regions of DNA” to obtain
a person’s DNA profile. Using the STR method, Heinig found that “each of the
13 loci” from Foust’s DNA was visible in the mixture on the hammer.
{¶ 81} Thus, contrary to Foust’s claims, Heinig explained the scientific
method used in conducting DNA analysis in this case. Moreover, we recognized
in State v. Pierce (1992), 64 Ohio St. 3d 490, 497, 597 N.E.2d 107, that “the
theory and procedures used in DNA typing are generally accepted within the
scientific community.” Accordingly, “the failure to challenge the admissibility of
such evidence cannot be considered ineffective assistance of counsel.” State v.
Nicholas (1993), 66 Ohio St. 3d 431, 437, 613 N.E.2d 225.
{¶ 82} Foust also claims that his counsel provided ineffective assistance
by failing to object to Heinig’s testimony because she did not actually perform the
DNA testing herself. During her direct examination, Heinig said, “For the most
part another analyst did the testing and I did the DNA typing at the end of the
analysis.”
{¶ 83} The defense counsel’s failure to object to Heinig’s testimony as
hearsay was a tactical decision. By not objecting to Heinig’s testimony, the
defense counsel avoided forcing the prosecution to call the other DNA analyst as
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a witness. The other DNA analyst would likely have elaborated upon Heinig’s
findings and bolstered the prosecution’s case. Thus, we find that counsel’s failure
to object to Heinig’s testimony did not constitute ineffective assistance. See State
v. Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373; cf. State v. Thomas, 97 Ohio
St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, at ¶ 51.
{¶ 84} Finally, Foust argues that his counsel provided ineffective
assistance by failing to challenge the foundation for Heinig’s testimony on the
statistical probability that the DNA profile of the blood that matched Jose
Coreano’s DNA profile would match another person’s DNA profile. Heinig
testified that the probability that another person’s DNA profile would match the
DNA profile obtained from the blood on the hammer was one in 140 trillion for
southwestern Hispanics, one in 980 trillion for southeastern Hispanics, and one in
four quadrillion for Caucasians.
{¶ 85} DNA evidence expressed in terms of population frequency is
admissible if it is relevant. Questions regarding the reliability of DNA evidence
in a given case, including DNA statistics on population frequency, go to the
weight of the evidence rather than its admissibility. See State v. Pierce, 64 Ohio
St.3d 490, 597 N.E.2d 107, paragraph two of the syllabus. Moreover, expert
witnesses are allowed to testify to statistical conclusions about DNA evidence
without being experts in statistical analysis. See State v. Rowe (Dec. 26, 2001),
Hamilton App. No. C-000727, 2001 WL 1887770; State v. Martin (Aug. 14,
2000), Brown App. No. CA99-09-026, 2000 WL 1145465. Thus, we find that the
defense counsel were not ineffective for failing to object to Heinig’s testimony
about DNA frequency statistics.
{¶ 86} Adequacy of cross-examination of Heinig. Foust asserts
ineffective assistance of counsel in their cross-examining of Heinig on her DNA
findings.
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January Term, 2004
{¶ 87} This court has recognized that “ ‘[t]rial counsel need not cross-
examine every witness * * *. The strategic decision not to cross-examine
witnesses is firmly committed to trial counsel’s judgment.’ ” State v. Campbell
(2000), 90 Ohio St. 3d 320, 339, 738 N.E.2d 1178, quoting State v. Otte (1996), 74
Ohio St. 3d 555, 565, 660 N.E.2d 711.
{¶ 88} Foust claims that counsel did not properly prepare to cross-
examine Heinig, because they did not understand DNA terminology. According
to Foust, counsel’s inadequacy is exemplified by the following cross-examination
question: “Is it possible that at that first stage of his alleles, whatever you’re
calling it, someone could have a 17, too?”
{¶ 89} Foust’s claim that his counsel did not understand DNA
terminology and rendered ineffective assistance in cross-examining Heinig about
her findings is purely speculative. Given the “strong presumption” that counsel’s
performance constituted reasonable assistance, we reject this allegation. State v.
Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373.
{¶ 90} Foust also fails to explain how further cross-examination of Heinig
would have made a difference in his case. If challenged, Heinig would likely
have elaborated on the reliability of DNA testing procedures and clarified her
testimony. However, such clarification may not have worked in Foust’s favor.
Thus, counsel may have decided to forgo further cross-examination to avoid the
danger of reiterating the state’s evidence and clarifying expert testimony that
might not come out in Foust’s favor. We find that counsel made a legitimate
“tactical decision” and were not ineffective. See State v. Hanna, 95 Ohio St. 3d
285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 121-123.
{¶ 91} Failure to object to fingerprint evidence. Foust also claims that
his counsel provided ineffective assistance by failing to challenge the reliability of
fingerprint evidence or object to testimony that his fingerprint matched the
fingerprint found in the basement. Foust also claims that his counsel should have
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objected to the admissibility of the lab report based on discovery violations and
the report’s inadmissibility as a public record.
{¶ 92} At trial, Jill Ryan, a fingerprint examiner with the Cleveland Police
Department, testified that Foust’s left thumbprint matched a print found on a
basement water pipe in the Coreano home.
{¶ 93} Counsel’s failure to object to the fingerprint evidence falls within
legitimate trial strategy. Foust confessed to entering the Coreano home on the
night of the murder through a basement window. Thus, fingerprint evidence of
Foust’s thumbprint found in the basement is not critical. Furthermore, the
reliability of fingerprint evidence is well established. See State v. Payne, Franklin
App. Nos. 02AP-723 and 02AP-725, 2003-Ohio-4891, 2003 WL 22128810, ¶ 54-
55; State v. Hamilton (Apr. 12, 2002), Lake App. No. 200-L-003, 2002 WL
549841; see, also, 1 Giannelli & Snyder, Evidence (2d Ed.2001) Section 702.27.
Here, then, counsel could have reasonably determined it unwise to challenge
fingerprint evidence and unnecessary to object to the lab report. State v.
Hartman, 93 Ohio St. 3d at 300, 754 N.E.2d 1150 (failure to challenge bloodstain
evidence was a legitimate trial strategy because the defendant admitted that police
would find the victim’s blood on his boots). Accordingly, we have concluded that
Foust has not demonstrated ineffective assistance of counsel in their failure to
challenge fingerprint evidence in this case.
{¶ 94} Failure to request defense experts. In addition, Foust argues that
his counsel provided ineffective assistance by failing to request funds for a DNA
expert, an alcohol- and substance-abuse expert, a fingerprint expert, and an arson
expert.
{¶ 95} DNA expert. Foust claims that he needed a defense DNA expert
to challenge DNA testing procedures, to demonstrate the unreliability of DNA
evidence, and to assist counsel in challenging the state’s DNA evidence.
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January Term, 2004
{¶ 96} Foust claims that a DNA expert was crucial to his defense because
he never admitted striking Coreano with a hammer. Nevertheless, in his
confession, Foust admitted “pick[ing] up something by the door and hit[ting
Coreano] with it.” Moreover, the coroner testified that the circular fracture on the
top of Coreano’s skull was consistent with Coreano’s having been hit by the
round striking face of a hammer.
{¶ 97} As an initial matter, “the failure to call an expert and instead rely
on cross-examination does not constitute ineffective assistance of counsel.” State
v. Nicholas, 66 Ohio St. 3d at 436, 613 N.E.2d 225, citing State v. Thompson
(1987), 33 Ohio St. 3d 1, 10-11, 514 N.E.2d 407. Here, the record reveals that
trial counsel’s decision to rely on cross-examination appears to have been a
legitimate “tactical decision,” particularly since the results of defense DNA
testing might not have turned out to be favorable to the defense. See State v.
Hartman, 93 Ohio St. 3d at 299, 754 N.E.2d 1150.
{¶ 98} Moreover, Foust’s argument that his counsel needed a DNA expert
to adequately prepare for trial is purely speculative. Despite Foust’s assertions,
the record does not establish a deficiency in his counsel’s knowledge about DNA
terminology and procedures.
{¶ 99} For the foregoing reasons, we reject Foust’s claim that his counsel
were ineffective by failing to utilize a DNA expert.
{¶ 100} Alcohol- and substance-abuse expert. Foust asserts that his
counsel should have challenged the constitutionality of R.C. 2901.21(C)2 and
claims that his counsel provided ineffective assistance by failing to retain an
alcohol- and substance-abuse expert to challenge the statute. Foust also claims
that counsel’s failure to present expert testimony on alcohol and substance abuse
deprived him of relevant mitigation evidence.
2. R.C. 2901.21(C) states: “Voluntary intoxication may not be taken into consideration in
determining the existence of a mental state that is an element of a criminal offense.”
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{¶ 101} In his confession, Foust claimed that he had been drinking beer
and wine for a couple of hours before breaking into the Coreano home and was
“getting pretty wasted.” He claimed, “I didn’t mean to hurt anybody, my mind
was just messed up.” Damaris testified that she had smelled alcohol on Foust’s
breath while he was raping her.
{¶ 102} Counsel’s decision not to challenge the constitutionality of R.C.
2901.21(C) was a legitimate tactical decision. Cf. State v. Cornwell (1999), 86
Ohio St. 3d 560, 569, 715 N.E.2d 1144 (not ineffective assistance of counsel to
forgo challenging the constitutionality of Ohio’s death-penalty statute). Thus,
counsel were not ineffective for failing to challenge the constitutionality of R.C.
2901.21(C). And Foust failed to explain how expert testimony on alcohol and
substance abuse would have aided such a challenge.
{¶ 103} Second, we reject Foust’s claim that counsel’s failure to call a
substance-abuse expert deprived him of mitigating evidence. Dr. James
Karpawich, a clinical psychologist, testified as a mitigation witness, and the
defense introduced his written evaluation into evidence. Dr. Karpawich testified
that Foust was diagnosed with “alcohol dependence.” In his written evaluation,
Dr. Karpawich’s reviewed Foust’s history of alcohol and marijuana abuse and
mentioned that Foust reported “abusing alcohol heavily around the time of the
present offenses.” Thus, the defense presented “alternative devices that * * *
fulfill[ed] the same functions as the expert assistance sought.” State v. Jenkins
(1984), 15 Ohio St. 3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph four of the
syllabus; State v. Nields (2001), 93 Ohio St. 3d 6, 12-13, 752 N.E.2d 859.
{¶ 104} Fingerprint expert. As discussed, counsel were not ineffective
for failing to object to the state’s fingerprint evidence, because Foust admitted
entering the Coreano home through the basement window. Thus, counsel were
not ineffective for failing to obtain a defense expert to contest this evidence.
26
January Term, 2004
{¶ 105} Arson expert. Foust also claims that his counsel provided
ineffective assistance by failing to request a defense arson expert to assist them in
challenging the state’s arson expert.
{¶ 106} Lt. Victor Gill, a fire investigator, investigated the cause of the
fire at the Coreano home. He concluded that there were “at least three fires and
each [had been] separately and intentionally set.” Investigators located a box of
matches and a spent match on the kitchen floor and another spent match on the
carpet near the point of origin of the upstairs-bedroom fire. Moreover, Foust
confessed that he had been striking matches and “throwing them down” in the
house.
{¶ 107} In view of overwhelming evidence that Foust started the fires at
the Coreano home, counsel could have determined it unnecessary to hire a
defense arson expert to challenge Lt. Gill’s findings. Thus, counsel exercised
professional judgment in refraining from requesting a defense arson expert. See
State v. Hartman, 93 Ohio St. 3d at 300, 754 N.E.2d 1150. As we have noted, “
‘[a]ttorneys need not pursue every conceivable avenue; they are entitled to be
selective.’ ” State v. Murphy (2001), 91 Ohio St. 3d 516, 542, 747 N.E.2d 765,
quoting United States v. Davenport (C.A.7, 1993), 986 F.2d 1047, 1049.
{¶ 108} Finally, resolving this issue in Foust’s favor would be purely
speculative. Foust does not indicate how the testimony of a defense arson expert
would have made any difference in the outcome of the case.
{¶ 109} Cumulative error. Foust argues that even if individually his
counsel’s errors did not rise to the level of ineffective assistance of counsel, the
cumulative effect of those errors necessitates reversal. Foust received a fair trial,
no error occurred, and the “cumulative error” argument is rejected. Based on the
foregoing, we reject proposition III.
{¶ 110} In proposition of law V, Foust asserts that his counsel provided
ineffective assistance by failing to effectively advocate the motion to suppress his
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confession. He also claims that counsel were ineffective in that they failed to
object to Judge Robert Glickman’s presence on the three-judge panel because he
had recently served as a prosecutor.
{¶ 111} Adequacy of the motion to suppress. In a pretrial motion,
defense counsel filed a motion to suppress Foust’s confession “on the grounds
that Defendant did not knowingly, voluntarily, and intelligently waived [sic] his
rights before making such oral statements.” During the presentation of the state’s
evidence on the motion, Detective Michael Cipo testified that Foust was advised
of his Miranda rights prior to making a statement. Foust then waived his
Miranda rights and agreed to provide a statement. According to Detective Cipo,
Foust did not appear to be under the influence of alcohol or drugs and provided
coherent responses to police questioning. Moreover, Foust never informed the
police during the interview that he wanted to talk to a lawyer.
{¶ 112} Foust argues that his counsel were deficient in failing to
introduce any evidence to support their assertion that he had asked the police to
let him speak to an attorney. However, the record supports the voluntary element
of Foust’s confession. Thus, it would be highly speculative to conclude that other
evidence could have been presented to show that Foust’s confession was
involuntary or that he had asked for a lawyer. See State v. Hartman, 93 Ohio
St.3d at 299, 754 N.E.2d 1150. Moreover, Foust’s contention of ineffective
assistance of counsel in not calling him as a witness to support the motion is not
well taken. Counsel’s decision “fell within the realm of trial strategy.” State v.
Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 121.
{¶ 113} Foust also claims that his counsel were deficient by failing to
cross-examine Detective Denise Kovach about the voluntariness of Foust’s
confession. During the state’s case-in-chief, the prosecution introduced Foust’s
confession through Detective Kovach’s testimony. Detective Kovach, who had
not testified at the hearing on the motion to suppress, testified that police had
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January Term, 2004
advised Foust of his Miranda rights and that he had waived those rights prior to
making his confession. At the conclusion of the state’s case, defense counsel
renewed the motion to suppress the confession, which the court overruled.
{¶ 114} Foust argues that his counsel provided ineffective assistance by
failing to ask Detective Kovach during cross-examination whether Foust had
requested a lawyer before making his confession. However, Foust’s confession
was determined to be admissible evidence before Detective Kovach testified.
Both Detective Cipo’s testimony and Foust’s written waiver of his Miranda rights
had earlier established that Foust had waived his right to a lawyer prior to
confessing. Given the strong presumption that counsel’s performance constituted
reasonable assistance, the decision to forgo further cross-examination on this
issue represented a valid “tactical decision.” See State v. Thomas, 97 Ohio St. 3d
309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 51; State v. Hartman, 93 Ohio St. 3d at
297, 754 N.E.2d 1150.
{¶ 115} Finally, it is highly speculative whether further cross-
examination of Detective Kovach would have made any difference in the outcome
of the reasserted motion to suppress. Indeed, counsel may have decided to forgo
further cross-examination of Detective Kovach to avoid eliciting testimony that
might not come out in Foust’s favor. See State v. Hanna, 95 Ohio St. 3d 285,
2002-Ohio-2221, 767 N.E.2d 678, ¶ 123. Moreover, Foust’s counsel had no duty
to cross-examine Detective Kovach about the voluntariness of Foust’s confession
solely because they had reasserted the motion to suppress at the end of the state’s
case.
{¶ 116} Failure to object to Judge Glickman. Foust claims that his
counsel provided ineffective assistance by failing to object to Judge Glickman’s
presence on the three-judge panel. Foust also claims counsel deficiency in their
failing to consult with him on the record before informing the court that the
defense had no objection to Judge Glickman’s presence.
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SUPREME COURT OF OHIO
{¶ 117} During pretrial motions, the trial court informed the parties that
Judge Glickman had recently been appointed to the bench after serving as an
assistant Cuyahoga County prosecutor. The trial court stated, “Counsel have
advised me that the mere association with Judge Glickman and his prior
experience with the Prosecutor’s Office * * * would not in and of itself be a
matter of concern provided that Judge Glickman had not had any involvement in
any prior actions involving Mr. Foust.”
{¶ 118} After opening statements, Judge Glickman disclosed his former
position as an assistant county prosecutor “assigned to the major trial unit, but at *
* * no time * * * ever assigned any case regarding this particular defendant.”
Further, Judge Glickman stated that he could never recall talking with Mr. Del
Balso, the prosecutor, about Foust’s case. In response, Foust’s trial counsel
stated, “We’re satisfied that the Court has made a complete inquiry into that
situation and we have no objection.”
{¶ 119} After the second witness testified, Judge Glickman reiterated that
he did not know anything about this particular case from his time at the
prosecutor’s office but felt he should disclose that he had worked with Dr. Bligh-
Glover (the deputy coroner who testified in this case) in previous cases, that he
had helped train several members of the coroner’s DNA lab – although not Ms.
Heinig, and that he had worked with Detectives Cipo and Kovach on a number of
homicide cases. Again, Foust’s trial counsel agreed that there was “no problem.”
{¶ 120} “The prior professional activities of a judge are not grounds for
disqualification where the record fails to demonstrate the existence of a
relationship or interest that clearly and adversely impacts on a party’s ability to
obtain a fair and impartial trial.” In re Disqualification of Cross (1991), 74 Ohio
St.3d 1228, 657 N.E.2d 1338. Because Judge Glickman had no prior involvement
with Foust’s case as a prosecutor, counsel had no basis for objecting to his
presence on the three-judge panel. Thus, counsel cannot be deficient for failing to
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January Term, 2004
object to Judge Glickman’s presence on the panel or in failing to file an affidavit
of disqualification against him. See R.C. 2701.03. Moreover, counsel did not
need to consult with Foust on the record about not objecting to Judge Glickman.
{¶ 121} Based on the foregoing, we overrule proposition V.
{¶ 122} In proposition of law VI, Foust argues ineffective assistance of
counsel for failing to raise various guilt-phase issues.
{¶ 123} Failure to cross-examine Serowik. Foust contends his counsel
failed to cross-examine Joseph Serowik, a scientific examiner for the Cleveland
Police Department, as to why no DNA analysis was performed on the rape-kit
swabs. Serowik testified that he had examined swabbings taken from the victim’s
oral, rectal, and vaginal cavities. Microscopic examination of the vaginal swab
revealed sperm cells and seminal fluid, and testing of the rectal swab showed
seminal fluid.
{¶ 124} Serowik testified that “DNA analysis was started,” but “due to
various issues it was unable to be completed.” Serowik explained that DNA
analysis was not completed because the senior DNA analyst went on maternity
leave on the day the evidence was submitted to the lab. Additionally, the lab was
“unable to obtain a reagent necessary for DNA analysis.”
{¶ 125} Because Serowik demonstrated why DNA analysis had not been
conducted on the swabs, counsel may have concluded it was futile to question
further on this issue. Moreover, whether further questioning would have
unearthed any useful information is a matter for speculation only. Indeed, the
lack of DNA testing on the swabs was more favorable to the defense than the
reasons why such tests were not completed – particularly when the reasons
involved administrative miscues. Thus, counsel’s decision to forgo cross-
examination of Serowik on the reasons why the state did not conduct DNA
analysis on the swabs constituted a legitimate “tactical decision.” See State v.
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Hanna, 95 Ohio St. 3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 123; State v.
Campbell, 90 Ohio St. 3d at 339, 738 N.E.2d 1178.
{¶ 126} Adequacy of cross-examination. Foust also asserts that his
counsel provided ineffective assistance by eliciting testimony concerning other
acts that Foust had committed.
{¶ 127} First, Foust complains that counsel elicited information from
Damaris that Foust had been physically violent and that Damaris had seen Foust
hit Acevedo. During cross-examination, defense counsel asked Damaris whether
she had told Acevedo that she should stop going out with Foust. Damaris’s
response, “He was physically violent,” was nonresponsive to counsel’s question.
Counsel then asked, “Did you see any incidence of that?” and Damaris said, “I
seen him hit her.”
{¶ 128} This cross-examination of Damaris was intended to demonstrate
bias on the part of Damaris because she had expressed her dislike of him before
the night of the murder. It is not ineffective assistance to fail to anticipate a
nonresponsive answer to some questions. Moreover, “this case was tried to a
three-judge panel, which was capable of drawing the correct conclusion” from the
evidence. State v. Frazier (1991), 61 Ohio St. 3d 247, 254, 574 N.E.2d 483;
accord State v. Post (1987), 32 Ohio St. 3d 380, 384, 513 N.E.2d 754 (judges
presumed to know the law and expected to consider only relevant, material, and
competent evidence during deliberations).
{¶ 129} Second, Foust complains that his counsel provided ineffective
assistance by eliciting from Damaris that her friendship with Acevedo had ended
because of Foust’s “actions and the things we knew he did.” This comment about
Foust was a nonresponsive answer to the appropriate question “Where did Janira
live at the time that all this came down?” Moreover, Foust did not suffer any
prejudice, particularly because a three-judge panel tried the case. State v. Frazier,
61 Ohio St. 3d at 254, 574 N.E.2d 483.
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{¶ 130} Third, Foust claims that counsel’s cross-examination of Damaris
improperly elicited Damaris’s comment that Foust had mocked her about being a
Christian. This response followed a line of questioning about previous
discussions Damaris and Foust had had about religion. We find that counsel’s
decision to pursue this line of questioning was a legitimate tactical decision, even
though some of Damaris’s answers resulted in negative information about Foust.
State v. Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373.
{¶ 131} Fourth, Foust argues that his counsel provided ineffective
assistance by eliciting testimony that Foust had made sexual advances toward
Damaris before the night of the rapes. Foust asserts that this testimony supplied a
motive for the state’s case: revenge of a spurned suitor. However, the record does
not support Foust’s assertion. During cross-examination, Damaris testified that
Foust had expressed some romantic interest toward her but that Foust knew
Damaris did not like him and that she had a boyfriend.
{¶ 132} Contrary to Foust’s claims, Damaris’s testimony did not supply a
motive for the crimes. By Foust’s own admission, he was looking for Acevedo,
not Damaris, on the night of the crimes. Thus, the “spurned suitor” motive
applied to Foust’s relationship with Acevedo, not Damaris. Damaris’s testimony
does not establish that Foust had a romantic interest in Damaris to support a
motive for committing murder. Counsel cannot be considered ineffective for
eliciting such testimony.
{¶ 133} Fifth, Foust claims that his counsel’s cross-examination of
Damaris harmed him by eliciting that Foust had “used her to purchase an
automobile, to enable [Foust] to drive illegally.” During cross-examination,
Damaris stated that she had allowed Foust to buy cars and put them in her name
because he had told her she would be able to drive them. However, Damaris
never got to drive these cars.
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{¶ 134} Counsel’s cross-examination showed that Damaris and Foust
knew each other better than she had indicated under direct examination.
Moreover, the fact that Damaris was never allowed to drive the cars titled in her
name helped establish bias of the witness. Counsel’s decision to ask these
questions was a reasonable trial strategy and did not constitute ineffective
assistance. State v. Durr (1991), 58 Ohio St. 3d 86, 96, 568 N.E.2d 674; State v.
Bradley, 42 Ohio St. 3d at 144, 538 N.E.2d 373.
{¶ 135} Sixth, Damaris’s comment that she was never told that Foust did
not have a license or that it might have been suspended was a nonresponsive
comment to one of counsel’s questions. Again, this case was presented to a three-
judge panel, capable of disregarding nonresponsive comments from the witness.
State v. Post, 32 Ohio St. 3d at 384, 513 N.E.2d 754.
{¶ 136} Finally, Foust claims that counsel’s cross-examination of
Patrolman William Hyland was ineffective in that it elicited that Foust had once
forced Damaris to drink an alcoholic beverage that he often drank and that she
had recognized the smell of that beverage on his breath while he raped her. Such
testimony was not prejudicial because this case was tried before a three-judge
panel. Id.
{¶ 137} Other acts of alleged ineffective assistance of counsel. Foust
raises other instances of alleged ineffective assistance of counsel, but even if we
assume deficient performance by counsel, Foust cannot show prejudice.
Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674. As
we discussed in response to proposition I, Foust knowingly, intelligently, and
voluntarily waived his right to a jury trial and he suffered no prejudice from his
counsel’s failure to ensure its validity. Moreover, Foust was not prejudiced by
counsel’s failure to object to the indictment (see discussion corresponding to
proposition II) or by his counsel’s failure to consult with him on the record before
waiving any objection to Judge Glickman’s presence on the panel (proposition V).
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Foust was also not prejudiced by his counsel’s decision not to challenge the
constitutionality of R.C. 2901.21(C) (proposition III), or by his counsel’s failure
to request merger of the offenses of rape, kidnapping, and gross sexual imposition
(proposition VII).
{¶ 138} Based on the foregoing, we reject proposition VI.
{¶ 139} Allied offenses. In proposition of law VII, Foust argues that his
separate convictions for kidnapping, rape, and gross sexual imposition violate the
Double Jeopardy Clause because the offenses are “allied offenses of similar
import” under R.C. 2941.25.3 Foust asserts that the state failed to prove separate
animus for these offenses and that they should have been merged into a single
offense. However, the defense failed to raise this issue at trial and thus waived all
but plain error. See State v. Williams, 51 Ohio St. 2d 112, 5 O.O.3d 98, 364
N.E.2d 1364, paragraph one of the syllabus; State v. Comen (1990), 50 Ohio St. 3d
206, 211, 553 N.E.2d 640.
{¶ 140} Kidnapping and Rape. The test for determining whether
kidnapping and rape were committed with a separate animus as to each is
“whether the restraint or movement of the victim is merely incidental to a separate
underlying crime or, instead, whether it has a significance independent of the
other offense.” (Emphasis added.) State v. Logan (1979), 60 Ohio St. 2d 126,
135, 14 O.O.3d 373, 397 N.E.2d 1345. Moreover, “[w]here the asportation or
restraint of the victim subjects the victim to a substantial increase in risk of harm
separate and apart from that involved in the underlying crime, there exists a
separate animus as to each offense sufficient to support separate convictions.” Id.
at subparagraph (b) of the syllabus.
3. R.C. 2941.25(A) provides, “Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment * * * may contain counts
for all such offenses, but the defendant may be convicted of only one.”
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{¶ 141} In Logan and subsequent cases, we held that prolonged
movement, secretive confinement, or substantial movement of the victim are facts
that establish a separate animus for kidnapping. Id. at subparagraph (a) of the
syllabus; State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶
134.
{¶ 142} Here, the facts showed substantial movement and restraint as
Foust forced Damaris into the bathroom after raping her. Foust then tied her
hands and feet together and tied her to the leg of the bathtub with a belt. These
actions subjected Damaris to a substantial increase in risk of harm because after
he chained her to the bathtub, he set the house on fire. Cf. State v. Hartman, 93
Ohio St. 3d at 280-281, 754 N.E.2d 1150 (separate animus for kidnapping when
victim had been tied to a bed, gagged, stabbed 138 times, and strangled and had
had her throat slit). Based on these facts, we find that Foust committed
kidnapping with an animus separate from the rapes.
{¶ 143} Gross Sexual Imposition and Rape. Gross sexual imposition is
a lesser included offense of rape. State v. Johnson (1988), 36 Ohio St. 3d 224, 522
N.E.2d 1082, paragraph one of the syllabus. Consequently, a defendant may not
be convicted of both gross sexual imposition and rape when the counts arise out
of the same conduct.
{¶ 144} One of the three counts of gross sexual imposition that Foust was
found guilty of committing was based upon evidence that Foust touched
Damaris’s vagina with his knife. Damaris testified that Foust left the bathroom
after he tied her to the leg of the bathtub. However, he returned to the bathroom
after hearing Damaris move around. According to Damaris, Foust cut off one of
her braids, touched her vagina with a knife, and threatened to slice her open if she
moved. This constitutes conduct separate and distinct from rape. Under these
facts, the crimes of gross sexual imposition differ from rape, and, therefore, Foust
could be convicted of each.
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{¶ 145} The two other counts of gross sexual imposition are premised on
Damaris’s testimony that Foust had touched her breasts and put his fingers on her
vagina. There is no evidence that Foust committed these acts while he was raping
Damaris. We conclude that these acts were distinct and separate from each other
and from the rapes, and, therefore, Foust could be convicted of each in addition to
the rapes.
{¶ 146} Based on the foregoing, we overrule proposition VII.
Penalty-phase issues
{¶ 147} In proposition of law VIII, Foust argues that his counsel provided
ineffective assistance of counsel during the penalty phase.
{¶ 148} Failure to develop Dr. Karpawich’s testimony. Foust claims
that his counsel were deficient in failing to develop Dr. Karpawich’s testimony to
show that Foust suffered from a mental disease or defect that qualified as an R.C.
2929.04(B)(3) mitigating factor. Foust claims that his counsel were obligated to
present such testimony because counsel had “indicated” in opening statement that
“mitigation was based in part upon R.C. §2929.04(B)(3).”
{¶ 149} R.C. 2929.04(B)(3) applies when “at the time of committing the
offense, the offender, because of a mental disease or defect, lacked substantial
capacity to appreciate the criminality of the offender’s conduct or to conform the
offender’s conduct to the requirements of the law.”
{¶ 150} Dr. Karpawich testified that Foust suffered from a major
depressive disorder and alcohol dependence. Additionally, Dr. Karpawich’s
conclusions were included in his written evaluation that was introduced into
evidence. Counsel’s questioning of Dr. Karpawich addressed the mitigating
features of Foust’s mental illnesses as follows:
{¶ 151} “Q: And your interviews with Kelly Foust in the jail since
you’ve had a chance to meet with him and the information that you obtained by
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way of history * * * leads you to believe that that’s what he was suffering from
and he does suffer from a major depressive disorder; is that correct?
{¶ 152} “A: That is my opinion, yes.
{¶ 153} “Q: How would that affect his ability to conduct his everyday
life with respect to making judgments as to the rightness or wrongness of what
he’s doing or what he’s not doing?
{¶ 154} “A: Again, depends on the severity of the depression at any
given time, it depends. Unfortunately in this case when depression is mixed with
alcohol then someone’s judgment is even more significantly impaired. It depends
on what other stability he has in his life to cling on to.”
{¶ 155} Nevertheless, Foust argues that his counsel provided ineffective
assistance by failing to elicit testimony from Dr. Karpawich that Foust lacked the
substantial capacity to appreciate the criminality of his conduct and thus failed to
trigger the language of R.C. 2929.04(B)(3). Because it is highly speculative
whether Dr. Karpawich could have so testified, Foust’s counsel were not
ineffective by failing to elicit such testimony. See State v. Braden, 98 Ohio St. 3d
354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 116, 121 (counsel not ineffective for
failing to show that the defendant’s paranoid schizophrenia qualified as an R.C.
2929.04(B)(3) mitigating factor).
{¶ 156} However, counsel’s questioning of Dr. Karpawich established
that Foust suffered from a mental illness that qualified as a mitigating factor under
the R.C. 2929.04(B)(7) catchall factor. Cf. State v. Seiber (1990), 56 Ohio St. 3d
4, 9, 564 N.E.2d 408 (“psychological and mental problems, though not qualifying
under R.C. 2929.04[B][3], are directly relevant under R.C. 2929.04[B][7]”).
Thus, counsel were not ineffective in questioning Dr. Karpawich.
{¶ 157} Failure to object to the reintroduction of guilt-phase
evidence. Foust asserts that his counsel provided ineffective assistance by failing
to object to the reintroduction of all guilt-phase exhibits in the penalty phase.
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However, Foust does not specify which exhibits he believed prejudiced him.
Nevertheless, counsel were not ineffective by failing to object to this evidence.
The reintroduction of evidence from the guilt-phase in the mitigation phase is
allowed by R.C. 2929.03(D)(1). State v. DePew (1988), 38 Ohio St. 3d 275, 528
N.E.2d 542, paragraph one of the syllabus; State v. Jackson (2001), 92 Ohio St. 3d
436, 447, 751 N.E.2d 946.
{¶ 158} Based on the foregoing, we reject proposition VIII.
{¶ 159} Merger. In proposition of law IX, Foust argues that the three-
judge panel failed to merge the aggravated-murder counts and the duplicative
aggravating circumstances prior to sentencing him. He also claims that the trial
court considered nonstatutory aggravating factors as part of the course-of-conduct
specification.
{¶ 160} Aggravated-murder counts involving the same victim are to be
merged for sentencing. State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, 787
N.E.2d 1185, ¶ 132; State v. Lawson (1992), 64 Ohio St. 3d 336, 351, 595 N.E.2d
902. Here, review of the sentencing journal entry reveals that the three-judge
panel imposed a death sentence “as to each of counts 2, 3, 4, 5, and 6,” pursuant
to each conviction, but obviously considered these counts as merged.
{¶ 161} As to the multiple aggravating circumstances, the rule is that
“where two or more aggravating circumstances arise from the same act or
indivisible course of conduct and are thus duplicative, the duplicative aggravating
circumstances will be merged for purposes of sentencing.” State v. Jenkins, 15
Ohio St. 3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph five of the syllabus.
However, in the case at bar, the five R.C. 2929.04(A)(7) aggravating
circumstances (rape, kidnapping, aggravated burglary, aggravated robbery, and
aggravated arson) are not duplicative because none arose from the same act or
indivisible course of conduct as another. Moreover, as discussed in proposition
VII, the facts established that Foust, after breaking into the Coreano home, raped
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and kidnapped Damaris with a separate animus for each offense. The facts also
showed that Foust’s theft of property from inside the house, his setting the house
on fire, and his theft of Jose’s car constituted separate and distinct acts, each
committed with a separate animus. See State v. Jones (2001), 91 Ohio St. 3d 335,
349, 744 N.E.2d 1163.
{¶ 162} Furthermore, the course-of-conduct specification, R.C.
2929.04(A)(5), and the R.C. 2929.04(A)(7) specification need not be merged.
The R.C. 2929.04(A)(7) specifications alleged that the aggravated murder of Jose
occurred during the course of rape, kidnapping, aggravated burglary, aggravated
robbery, and aggravated arson. In contrast, the course-of-conduct specification
alleged that Jose’s murder was part of a course of conduct in which Foust also
attempted to kill Damaris. Thus, the R.C. 2929.04(A)(5) and (A)(7)
specifications did not arise from the same course of conduct and are not
duplicative. See State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, 776 N.E.2d
26, ¶ 51-52; State v. Robb (2000), 88 Ohio St. 3d 59, 85, 723 N.E.2d 1019; State v.
Frazier, 61 Ohio St. 3d at 256, 574 N.E.2d 483.
{¶ 163} Finally, Foust points out that the panel considered nonstatutory
aggravating factors as part of the course-of-conduct specification. In its
sentencing opinion, the panel stated, “[T]he killing of Jose Coreano was part of a
course of conduct that included all the other crimes committed by the defendant
that night: the aggravated burglary of the home, rape and gross sexual imposition
upon Damaris Coreano, aggravated robbery, and aggravated arson. These are no
longer separate crimes, but have been tied together in a Gordian knot of perversity
and brutality.”
{¶ 164} The R.C. 2929.04(A)(5) specification applies only to “a course
of conduct involving the purposeful killing of or attempt to kill two or more
persons by the offender.” Thus, the panel improperly referred to other felony
offenses that Foust committed as part of a course of conduct, an error that we will
40
January Term, 2004
correct during our independent review. See State v. Fox (1994), 69 Ohio St. 3d
183, 191-192, 631 N.E.2d 124.
{¶ 165} Based on the foregoing, proposition IX has some merit but does
not result in error sufficient to warrant a reversal or retrial.
{¶ 166} Sentencing opinion. In proposition of law X, Foust contends
that the sentencing panel failed to adequately address and give weight to
mitigating factors presented at trial.
{¶ 167} First, Foust argues that the three-judge panel failed to consider
evidence that he suffered from depression and alcohol dependence as a mitigating
factor under R.C. 2929.04(B)(7), the catchall provision.
{¶ 168} The sentencing panel evaluated Foust’s history of depression and
alcohol dependence to determine whether it qualified as a mental disease or defect
under R.C. 2929.04(B)(3). The panel stated that “the defendant indeed suffers
from a mental disease or defect (depression and alcohol dependence). The report
and testimony of Dr. Karpawich confirm earlier diagnoses to this effect, and Dr.
Karpawich’s testimony further suggests that these conditions may have played a
role in the defendant’s conduct on the night of March 31, 2001.” Nevertheless,
the panel concluded that no evidence established that these conditions affected
Foust’s “ ‘capacity to appreciate the criminality of [his] conduct or to conform
[that] conduct to the requirements of the law.’ ” Panel opinion, quoting R.C.
2929.04(B)(3).
{¶ 169} The panel erroneously failed to discuss whether Foust’s mental
illness had any weight as a (B)(7) factor. We consider this factor during our
independent review. See State v. Mink, 101 Ohio St. 3d 350, 2004-Ohio-1580, 805
N.E.2d 1064, ¶100; State v. Fears (1999), 86 Ohio St. 3d 329, 345, 715 N.E.2d
136.
{¶ 170} Second, Foust argues that the panel did not properly weigh as a
mitigating factor the tragic losses of his older brother and younger sister. In the
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sentencing opinion, the panel considered evidence that “[t]he defendant’s one
significant role model, an older brother, was murdered, execution-style” as a
possible R.C. 2929.04(B)(7) mitigating factor. However, the panel concluded that
“sympathy for the tragic manner in which the defendant lost his older brother and
younger sister may help explain his conduct but does not support mitigation of the
sentence.”
{¶ 171} Examination of the sentencing opinion reveals that the panel
considered the tragic deaths of Foust’s brother and sister as mitigating evidence
but chose to give it no weight. “There is ‘no requirement’ that the trial court
‘explain how it decides how much weight to give any one factor.’ ” Moreover,
‘[t]he weight, if any, given to a mitigating factor is a matter for the discretion of
the individual decisionmaker.’ ” State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-
6624, 779 N.E.2d 1017, ¶ 81, quoting State v. Filiaggi (1999), 86 Ohio St. 3d 230,
245, 714 N.E.2d 867. Thus, the panel could reasonably assign whatever weight,
if any, it deemed appropriate for that mitigating evidence. Accordingly, we reject
proposition X.
Cumulative errors
{¶ 172} In proposition of law XI, Foust contends that errors, individually
and collectively, deprived him of a fair trial and necessitate the reversal of his
death sentence. However, our review of the evidence shows that Foust received a
fair trial. Any error was nonprejudicial. We reject proposition XI.
Settled issues
{¶ 173} Proportionality. In proposition of law XII, Foust challenges the
constitutionality of Ohio’s proportionality review. However, we summarily reject
these arguments. See State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767
N.E.2d 166, ¶ 23; State v. Smith (1997), 80 Ohio St. 3d 89, 118, 684 N.E.2d 668;
State v. Steffen (1987), 31 Ohio St. 3d 111, 31 OBR 273, 509 N.E.2d 383,
paragraph one of the syllabus.
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January Term, 2004
{¶ 174} Constitutionality. In proposition of law XIII, Foust attacks the
constitutionality of Ohio’s death-penalty statutes. We have previously rejected
similar claims. See State v. Carter, 89 Ohio St. 3d at 607, 734 N.E.2d 345; State
v. Jenkins, 15 Ohio St. 3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph one of the
syllabus.
{¶ 175} Foust also argues that Ohio’s death-penalty statutes violate
international agreements to which the United States is a party. However, we also
reject this argument. 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.
INDEPENDENT SENTENCE EVALUATION
{¶ 176} Having considered Foust’s propositions of law, we are required
by R.C. 2929.05(A) to independently review Foust’s death sentence for
appropriateness and proportionality. The evidence at trial established that Foust
murdered Jose Coreano and attempted to murder Damaris Coreano as part of a
course of conduct involving the purposeful attempt to kill two people, R.C.
2929.04(A)(5). The evidence also established that Foust murdered Jose while
committing or attempting to commit aggravated burglary, aggravated robbery,
rape, kidnapping, and aggravated arson, R.C. 2929.04(A)(7).
{¶ 177} Against these aggravating circumstances, we are called upon to
weigh the mitigating factors contained in R.C. 2929.04(B). Foust presented three
mitigation witnesses and personally made an unsworn statement.
{¶ 178} Gary William Foust Sr., the defendant’s father, testified that
Foust was the sixth oldest of his eight children, that he and his wife, Barbara,
frequently argued and fought with each other in front of their children, and that he
was an alcoholic. Foust was eight years old when his parents were divorced in
1985. Foust did not do well in school and never graduated from high school.
{¶ 179} In 1987 or 1988, Foust’s mother was sent to prison. Thereafter,
Foust, who was then 11 years old, and three of his siblings lived with their father.
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Because Gary was working, he hired a woman to look after the children. In 1990,
Foust’s mother was released from prison and assumed custody of the children.
Thereafter, Gary lost contact with Foust, and Gary had not seen him since 1990.
{¶ 180} Terence, Foust’s brother, was shot and killed when he was 18 or
19 years old. Terence lived with two people who were dealing drugs when he
was shot. According to Gary, “the people who executed him went there to
execute them two people, [and Terence] just happened to be there.” In 1981,
Foust’s two-year-old sister died from a carbon monoxide leak.
{¶ 181} Barbara Ann Foust, the defendant’s mother, testified that Gary
had been “very violent” and “very unstable.” According to Barbara, Gary treated
the children very badly. “[I]f he wasn’t hitting, he was screaming, he was
threatening, he was ridiculing, berating them. [E]verything they ever did wasn’t
good, nothing they ever did was okay.” Gary often physically abused Barbara,
and she went to the hospital several times after he had beaten her. Gary also hit
Foust and his brothers with “[h]is fist, whatever he could pick up, [and] he’d kick
them.”
{¶ 182} Barbara stated that “[u]p until seventh grade [Foust] was my very
best child. * * * He was always on the merit roll, always on the honor roll, I don’t
remember every [sic] having to discipline him.” However, in the seventh grade,
Foust “just totally changed.” According to Barbara, “[h]e wouldn’t go to school.
When he did he was just there roaming the hall. He’d be out all night. He’d
disappear for a day or night on end.”
{¶ 183} Foust had had a close relationship with Terence, his older
brother. However, Terence was involved in car theft. When Foust was 15 years
old, he got into trouble and was sent to the Riverview School for Boys. In 1994,
while Foust was at Riverview, Terence was shot and killed. Shortly afterward,
Foust tried to kill himself. About a year later, Foust was released from Riverview
and moved back in with his mother. However, Foust “very rarely spoke to
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anyone. You know, he’d go for days coming and going and not speak to anyone
in the house.”
{¶ 184} Foust’s relationship with Acevedo was “very bad on both their
parts.” According to Barbara, “[w]hen he first started seeing her he was actually
living with her at her mother’s apartment. And there was some kind of a problem
between [Foust] and [Acevedo’s] brother so he moved back home and brought her
with him.” However, Foust and Acevedo were constantly fighting. But Barbara
did not “know who hit who the most or who argued the most.”
{¶ 185} Barbara said she has been angry with her son since these offenses
were committed. However, she hoped that Foust would not receive a death
sentence because “we now have the choice of life without parole.”
{¶ 186} Dr. James Karpawich, a clinical psychologist, described Foust’s
upbringing as “very traumatic as well as very chaotic.” Foust’s family members
told Dr. Karpawich that Foust’s father had been “physically abusive towards all
members of the family. On the other hand, Mr. Foust, Kelly’s father, indicated
that Kelly’s mother was unstable. He also alleged that [she] would have men
come into the home when he went to work and that she was committing adultery.”
{¶ 187} Because of the lack of stability in the home, Foust never
developed a strong sense of security. Foust “experienced violence throughout his
upbringing, which has an impact on the way he would interact with other people,
especially women.” Moreover, Foust lacked positive role models during his
formative years. Foust had looked up to his older brother Terence as a role model
before he was shot and killed.
{¶ 188} Dr. Karpawich reviewed a report prepared by Dr. Feldsher of the
Court Psychiatric Clinic on Foust’s mental state. Although the report was not
introduced at trial, Dr. Feldsher diagnosed Foust as suffering from a depressive
disorder with a secondary diagnosis of alcohol dependence. Dr. Karpawich
concurred with the finding that Foust “has a significant problem that qualifies for
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alcohol dependence.” Moreover, Dr. Karpawich believes that Foust was
“suffering from a major depressive disorder at the time since both [Foust] and his
family had reported that he had been suffering from depression and suicidal
thoughts for several months prior to the offense.”
{¶ 189} Intelligence tests indicated that Foust’s IQ is “in the average
range and he does not have any severe clouded deficits.” As reported in Dr.
Karpawich’s written evaluation, other tests showed that Foust’s memory was
intact, he had mild problems with his complex reasoning ability, and his reading
skills were at the high school level.
{¶ 190} Finally, Dr. Karpawich indicated that Foust has “abided by the
rules and regulations since he’s been in the Cuyahoga County Jail.” Although
other inmates have given Foust “a hard time because of the high publicity of the
trial, * * * he’s been able to maintain his control over his anger.” Moreover,
“he’s not gotten into any violence * * * [and] he’s been a very appropriate
prisoner.”
{¶ 191} Foust’s unsworn statement. On the date of the offenses, Foust
was drinking alcohol with a friend. Foust said that his purpose in going to the
Coreano house was to see Acevedo, who “was one of the only individuals that
[he] had at the time to talk to or to listen to [him].” According to Foust, “I don’t
know what exactly triggered everything off, but it was just a lot of unstable
emotions and mixed feelings that was going through my head at the time.”
{¶ 192} Foust told the Coreano family, “I’d like to just say I’m sorry. It
should have never happened.” He also said, “I didn’t mean to hurt nobody. I
wasn’t intentionally trying to do harm to anybody. When I went there it had
nothing to do with the Coreano family at all, but when I arrived there everything
in my mind just changed that one split second.” In closing, Foust said, “You
know, if there’s a way I can change that I would, but I don’t think there’s, you
know, anything within my power that I can actually do to help any of the pain or
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January Term, 2004
change anything that happened. The most I can do is just, you know, tell them
that I’m sorry for it and hope that one day * * * maybe they can learn to forgive
me for it.”
{¶ 193} We find nothing in the nature and circumstances of the offenses
to be mitigating. Foust broke into the Coreano home and murdered Jose Coreano
while he was sleeping. Foust also repeatedly raped Damaris Coreano, chained her
to the leg of the bathtub, and then tried to kill her by setting the house on fire.
Furthermore, Foust stole property from inside the house and stole Jose’s car in
fleeing from the scene.
{¶ 194} Although Foust’s character offers nothing in mitigation, we give
some weight to his history and background. Foust was raised in a very unstable
family environment. His father was an alcoholic, and his mother spent time in
prison while Foust was growing up.
{¶ 195} We find that the statutory mitigating factors are generally
inapplicable here, including R.C. 2929.04(B)(1) (victim inducement), (B)(2)
(duress, coercion, or strong provocation), and (B)(6) (offender was accomplice
only).
{¶ 196} Foust’s mental disorders do not qualify as an R.C. 2929.04(B)(3)
factor because there was no testimony that Foust, by reason of a mental disease or
defect, lacked substantial capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirements of the law.
{¶ 197} We give little weight to the R.C. 2929.04(B)(4) mitigating factor
(youth of the offender) because Foust was 23 years old at the time of the offenses.
See State v. Hartman, 93 Ohio St. 3d at 306, 754 N.E.2d 1150; State v. Dunlap
(1995), 73 Ohio St. 3d 308, 319, 652 N.E.2d 988; State v. Ballew (1996), 76 Ohio
St.3d 244, 257, 667 N.E.2d 369.
{¶ 198} The R.C. 2929.04(B)(5) mitigating factor (lack of significant
criminal history) is entitled to only some weight because Foust has a prior felony
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conviction for receiving stolen property. Foust was also sent to the Riverview
School for Boys from September 1992 to February 1995.
{¶ 199} Under the catchall provision, R.C. 2929.04(B)(7), we also give
some weight to Foust’s mental problems. Foust was diagnosed with “Depressive
Disorder” and “a significant problem with Alcohol Dependence.” Nevertheless,
there was no evidence of any significant connection between Foust’s mental
disorders and Coreano’s murder. Moreover, we have previously rejected the
argument that a defendant’s alcoholism ought to receive much weight as a
mitigating factor. See State v. Slagle (1992), 65 Ohio St. 3d 597, 614, 605 N.E.2d
916.
{¶ 200} We also give some weight as a (B)(7) mitigating factor to
evidence suggesting that Foust will adapt well to prison life. State v. Madrigal,
87 Ohio St. 3d at 397, 721 N.E.2d 52. Additionally, we give weight under (B)(7)
to Foust’s cooperating with the police after he was arrested. State v. Mink, 101
Ohio St. 3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 125.
{¶ 201} Finally, we give weight to Foust’s apologies to the victims’
family and his expressions of remorse. See State v. Hughbanks, 99 Ohio St. 3d
365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 143; but, see, State v. Keene (1998),
81 Ohio St. 3d 646, 671, 693 N.E.2d 246 (remorse entitled to little weight in
mitigation). The evidence does not reveal any other mitigating factors under R.C.
2929.04(B)(7).
{¶ 202} Upon weighing the aggravating circumstances against the
mitigating factors, we find that the aggravating circumstances as to Jose
Coreano’s murder outweigh the mitigating factors beyond a reasonable doubt.
Foust murdered Jose Coreano during the course of an aggravated burglary,
aggravated robbery, rape, kidnapping, and aggravated arson, which are grave
aggravating circumstances. Similarly, his course of conduct in killing Jose and
attempting to kill Damaris Coreano is also a serious aggravating circumstance. In
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January Term, 2004
contrast, Foust offered no significant mitigating evidence. Thus, we find that the
death penalty is appropriate.
{¶ 203} We also find that the penalty imposed in this case is both
appropriate and proportionate when compared to other course-of-conduct murders
for which the death penalty was imposed. See State v. Filiaggi, 86 Ohio St. 3d
230, 714 N.E.2d 867 (one murder and one attempted murder); State v. Dennis
(1997), 79 Ohio St. 3d 421, 683 N.E.2d 1096 (one murder and one attempted
murder); State v. Beuke (1988), 38 Ohio St. 3d 29, 526 N.E.2d 274 (one murder
and two attempted murders).
{¶ 204} The death penalty is also appropriate and proportionate when
compared to death sentences approved for other burglary-murder and robbery-
murder cases. See State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, 793
N.E.2d 446; State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, 779 N.E.2d
1017; State v. Stallings (2000), 89 Ohio St. 3d 280, 731 N.E.2d 159. It is also
appropriate and proportionate when compared with the sentence in other
kidnapping-murder cases. See State v. Scott, 101 Ohio St. 3d 31, 2004-Ohio-10,
800 N.E.2d 1133; State v. Hartman, 93 Ohio St. 3d 274, 754 N.E.2d 1150; State v.
Ballew, 76 Ohio St. 3d 244, 667 N.E.2d 369. Additionally, the death penalty is
appropriate and proportionate when compared to other rape-murder cases. See
State v. Carter, 89 Ohio St. 3d 593, 734 N.E.2d 345; State v. Phillips, 74 Ohio
St.3d 72, 656 N.E.2d 643; State v. Mason (1998), 82 Ohio St. 3d 144, 694 N.E.2d
932. Finally, the death penalty is appropriate and proportionate when compared
to death sentences approved in other arson-murder cases. See State v. Franklin,
97 Ohio St. 3d 1, 2002-Ohio-5304, 776 N.E.2d 26; State v. Wilson (1996), 74 Ohio
St.3d 381, 659 N.E.2d 292.
Conclusion
{¶ 205} We affirm Foust’s convictions and his sentence of death.
Judgment affirmed.
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SUPREME COURT OF OHIO
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON and
O’CONNOR, JJ., concur.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, Gail D.
Baker, Perry M. Kendall Jr., and Carol M. Skutnik, Assistant Prosecuting
Attorneys, for appellee.
David L. Doughten and Alan C. Rossman, for appellant.
_____________________
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