Ohio State Reports
Unpublished
STATE v. JOHNSON, Unpublished Decision (12-13-2006)
2006-Ohio-6404 THE STATE OF OHIO, APPELLEE, v. JOHNSON,
APPELLANT. No. 2004-1163. Supreme Court of Ohio.
Submitted June 20, 2006. Decided December 13, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Court of Common Pleas of
Guernsey County, No. 03-CR-116.
Daniel G. Padden, Guernsey County Prosecuting Attorney, for
appellee.
Buell & Sipe Co., L.P.A., and Dennis L. Sipe; McGarry Law
Office and Kathleen McGarry, for appellant.
O’DONNELL, J.
{¶ 1} Marvin G. Johnson appeals from his convictions
entered pursuant to jury verdicts finding him guilty of the
aggravated murder of 13-year-old Daniel Bailey and the rape
and aggravated robbery of Tina Bailey, Daniel’s mother, and
from the trial court’s imposition of the death penalty.
{¶ 2} Johnson raises twenty-three propositions of
law; however, after review, none are well taken, and
pursuant to our independent review of the death sentence in
accordance with R.C. 2929.05(A), we affirm these
convictions and the sentence imposed.
{¶ 3} The record reveals that Tina Bailey lived on
Stewart Avenue in Cambridge, Ohio. Marvin Johnson first met
her in 1998 or 1999, and he eventually began living with
her on Stewart Avenue. Between 2000 and 2002, an Alabama
court incarcerated him for violating parole in connection
with a 1988 arson conviction in that state. Upon his
release, however, Johnson returned to Ohio and resided with
Tina until July 2003. [D1]
{¶ 4} During the time Johnson lived with Tina, his
use of crack cocaine became problematic. Frequently,
Johnson did not come home on payday but would instead
disappear for a night or two to spend his paycheck on
crack. And, due to his drug habit, he only reluctantly
contributed money to the household. He also had a strained
relationship with Tina’s two children, especially Daniel,
because he resented Tina’s generosity toward them.
{¶ 5} Both Johnson and Tina were friends of Utelius
“Eric” Barnes. Johnson occasionally became jealous of
Barnes, and he suspected that Tina and Barnes had
relations.
{¶ 6} On July 3, 2003, after several weeks of anger
and tension, Tina told Johnson to leave. Though she later
allowed him back into her house two or three times, she
made it clear to him that he did not have permission to
enter the house in her absence.
{¶ 7} Nevertheless, twice during the two or three
weeks before August 15, 2003, Johnson entered her house
while she was at work. On the second occasion, she returned
to find him there, and she ordered him to leave. Johnson
refused, and he dared her to call the police. As they
argued, according to Tina’s trial testimony, Johnson
“pulled his arm back,” as if to strike her, and he warned
that she “shouldn’t be surprised if [she] found [her] house
in ashes.” Eventually, he voluntarily left her home.
{¶ 8} Tina worked as a nurse at the Southeastern
Ohio Regional Medical Center, a hospital in Cambridge,
Ohio, and during the summertime, she often worked the 11:00
p.m. to 7:00 a.m. shift. Her son, Daniel, who would stay at
home alone while Tina worked, customarily stayed up until
4:00 or 5:00 a.m. and would phone her at work to say
goodnight before he went to bed. On the night of August 14,
2003, Tina worked the late shift while Daniel stayed at
home alone, and, in keeping with his habit, he phoned his
mother in the early morning hours of August 15 to say
goodnight before he went to bed.
{¶ 9} That same evening, Johnson stayed at the home
of Lisa Wilson, an acquaintance of his and a drug dealer.
David Jones, another Wilson acquaintance, also spent the
night at Wilson’s home. At midnight, Wilson went on what
she described as a “crack run,” and she testified that she
saw Johnson asleep on her couch when she left. When she
returned at 3:00 a.m., she remembered seeing him in the
same position, and, at 3:30 a.m., when she left a second
time, she also noticed him there.
{¶ 10} Around 5:30 a.m., when Wilson returned, she
did not see Johnson but learned from David Jones that he
“had gotten up about 5:00.” According to Wilson, Jones also
told her that “ten minutes after I had left at 3:30,” he
heard Johnson “rummaging through a bag in the kitchen”
before he left. The bag contained old shoes that Wilson had
collected.
{¶ 11} Sometime after Daniel’s phone call to his
mother saying goodnight, Johnson beat 13-year-old Daniel
Bailey to death. The presence of blood spatters in the
living room of the Bailey home established that the beating
occurred there.
{¶ 12} According to Dr. Charles Lee, the physician
who performed the autopsy, Daniel suffered multiple skull
fractures, bruising on his face, and two long lacerations
on his head caused by five or six blows from a blunt
instrument, possibly a two-by-four. The blows caused
Daniel’s brain to swell within the skull cavity until his
breathing stopped. In such cases, according to Dr. Lee,
death “typically takes anywhere from a couple to several
minutes.”
{¶ 13} After beating Daniel, Johnson gagged and
hogtied him with shoelaces taken from the bag in Lisa
Wilson’s home. According to Dr. Lee, Daniel’s head injuries
occurred before Johnson tied his hands and feet. Dr. Lee
also concluded that Daniel was still alive when he was tied
up: “Yes, there’s no question he was alive. * * * [T]he
skin reaction, the red hyperemia next to the bindings
around his wrists shows that * * * the heart was still
pumping while these tight bindings were around the wrists.”
{¶ 14} After beating Daniel and tying him up,
Johnson carried him to the basement of the Bailey home.
{¶ 15} Tina returned from work around 8:00 a.m. and
spoke briefly with Utelius Barnes, as he prepared to start
his second day of work on the remodeling project at her
home. The two went inside and discussed the work for
another 20 minutes. Tina then went upstairs.
{¶ 16} When she reached the top of the stairs, she
saw Johnson coming out of the bathroom wearing an
olive-colored T-shirt and carrying a knife in his hand. As
Johnson held the knife up in front of her, Tina asked him
to put it down, and said, “where’s Daniel, what did you do
to Daniel [?]”
{¶ 17} Johnson walked Tina into her bedroom. When
Tina began to hyperventilate, Johnson told her to “calm
down” and to “keep quiet” because Barnes and another
home-remodeler were nearby. According to Tina, Johnson
warned that if she did not obey, “he couldn’t guarantee
that Daniel would be okay.” She testified that Johnson told
her that Daniel “would be okay,” provided that she complied
with three demands: first, Johnson wanted to watch Barnes
and Tina have sex; second, he wanted to have sex with Tina
“one last time” himself; and, third, he wanted $1,000. Tina
asked Johnson why he was doing this, and he replied, “this
[is] the only way I know how to hurt you.”
{¶ 18} She disrobed and performed oral sex on him,
and he placed his fingers in her vagina. He continued to
hold the knife during these acts. Tina testified that she
would not have done this had she not been afraid for Daniel
or if Johnson had not held the knife.
{¶ 19} Afterward, according to Tina, Johnson told
her to “get up and get dressed, we ha[ve] to go to the
bank.” She got dressed and walked out of the bedroom ahead
of Johnson, who still held the knife. She again asked him
to put it down, and he returned to the bedroom and placed
the knife under the mattress on the bed. Police later
recovered it there with Johnson’s thumbprint on it.
{¶ 20} Johnson persuaded Tina to drive him to her
bank where, using the drive-through window, she withdrew
$1,000 and handed it to him. Bank records and the teller’s
testimony reveal that this transaction occurred between
8:48 and 8:50 a.m. on August 15. Johnson then had Tina drive
him to the parking lot of the local Elks Lodge, and he told
her to go home and said he would call to tell her what he
had done with Daniel.
{¶ 21} Tina went home and found Daniel in the
basement behind her washing machine, gagged, tied and lying
face down in a blanket. She tried to remove the gag and
tried to revive him before she ran upstairs and asked one
of the home-remodelers to call the police.
{¶ 22} Meanwhile, Johnson went to the home of his
friend, Matthew Heskett, where he took off his bloodstained
shirt, left it on the floor, and borrowed a clean one from
Heskett. He then called a taxi and left for Zanesville.
{¶ 23} While Johnson was en route to Zanesville, the
Cambridge police learned of Johnson’s departure and radioed
the Zanesville police to look for the cab.
{¶ 24} Patrolman Mike Choma of the Zanesville police
spotted the cab and saw Johnson walking away from it. Choma
and another officer approached Johnson and ordered him to
the ground. However, Johnson fled to an abandoned park and
hid the money that he had taken from Tina. The police later
recovered both the money and the bank envelope.
{¶ 25} The police also recovered Johnson’s bloody
shirt from the Haskett residence and sent it to the Bureau
of Criminal Identification and Investigation (“BCI”) for
analysis. BCI found the bloodstains on the shirt to be
consistent with the DNA profile of Daniel Bailey. According
to BCI, the chance of finding the same DNA profile in a
random member of the population is one in more than 320
trillion.
{¶ 26} The Guernsey County Grand Jury indicted
Johnson on two counts of aggravated murder: Count 1,
pursuant to the felony-murder provision in R.C. 2903.01(B),
and Count 2, pursuant to the “prior calculation and design”
provision in R.C. 2903.01(A). Each aggravated-murder count
carried a death penalty specification charging Johnson as
the principal offender in felony-murder, pursuant to R.C.
2929.04(A)(7). The indictment also contained counts for
kidnapping, rape, and aggravated robbery. The jury
convicted him of all counts and all specifications, and,
following the jury’s recommendation, the trial judge
sentenced him to death.
{¶ 27} On appeal, Johnson presents 23 propositions
of law, which we shall consider by topic.
Erroneous Specification Issues
{¶ 28} In his seventeenth proposition of law,
Johnson argues that his death sentence should be overturned
because of an error in the verdict forms and an alleged
error in the jury instructions, as well as alleged
misstatements by the trial judge during voir dire.
{¶ 29} We begin by noting that no dispute exists
with regard to Johnson’s indictment. Count 2 charged him
with violating R.C. 2903.01(A), aggravated murder by “prior
calculation and design,” with a death penalty
specification, pursuant to R.C. 2929.04(A)(7), which
contained the aggravating circumstance of felony-murder with
Johnson alleged to be the “principal offender.”
{¶ 30} Johnson catalogs three alleged
post-indictment errors regarding the jury’s consideration
of the specifications attached to Counts 1 and 2. First, he
complains that, in the guilt phase of the trial, the jury
received a verdict form for the specification under Count 2
that mistakenly omitted the “principal offender” language.
Instead of this language, the specification for Count 2
charged that Johnson “committed the aggravated murder with
prior calculation and design.” Johnson contends that the
erroneous substitution of “prior calculation and design”
for “principal offender” in the verdict form invalidates
his death sentence because the jury returned a verdict
finding him guilty of a specification not contained in the
indictment presented against him.
{¶ 31} Had Johnson objected to the erroneous verdict
form at trial, the court could have corrected it. Because
he failed to object, however, he has waived all but plain
error. Plain error is “obvious,” State v. Barnes (2002), 94
Ohio St.3d 21, 27, 759 N.E.2d 1240, and, “but for the
error, the outcome of the trial clearly would have been
otherwise.” See State v. Long (1978), 53 Ohio St.2d 91, 7
O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.
{¶ 32} The error, in this case, did not determine
the outcome of the trial, as State v. Bonnell (1991), 61
Ohio St.3d 179, 573 N.E.2d 1082, illustrates. In Bonnell,
as in this case, the judge failed to instruct the jury on
the principal-offender element of the felony-murder
specification and failed to include it in the verdict form.
In our opinion, we stated, “[t]he evidence in this case
does not reasonably suggest that [the] murder was committed
by more than one offender. Thus, appellant was either the
principal offender, or he committed no offense at all.” Id.
at 184, 573 N.E.2d 1082.
{¶ 33} Using similar analysis, the United States
Supreme Court, in Mitchell v. Esparza (2003), 540 U.S. 12,
124 S.Ct. 7, 157 L.Ed.2d 263, held that omitting the
principal-offender allegation from a felony-murder
specification constituted harmless error, in the context of
a habeas corpus action, because the omission could not be
considered outcome-determinative. “[T]he jury verdict would
surely have been the same had it been instructed to find as
well that the respondent was a `principal’ in the offense.
After all, he was the only defendant charged in the
indictment. There was no evidence presented that anyone
other than respondent was involved in the crime or present
at the store.” 540 U.S. at 18, 124 S.Ct. 7, 157 L.Ed.2d
263.
{¶ 34} As in Bonnell and Esparza, the indictment
here named only Johnson as an offender, and no evidence
presented at trial suggested involvement by anyone other
than Johnson in the murder. Thus, in this case, as in
Esparza, “the jury verdict would surely have been the same”
had the verdict form asked the jury to determine whether
Johnson was the principal offender. The verdict form’s
substitution of the prior-calculation-and-design element
for the principal-offender element of the specification
does not alter this analysis.
{¶ 35} Second, Johnson complains that the trial
court referred repeatedly during voir dire to “two
specifications” when — he claims — only one
existed. However, during the voir dire examination, two
specifications did exist, one on each of the separate counts
of aggravated murder. Johnson did not object to the judge’s
statements, and we conclude no error exists in them, let
alone plain error. See State v. Jones (2001), 91 Ohio St.3d
335, 353, 744 N.E.2d 1163 (“[s]tatements made during voir
dire cannot reasonably be thought to affect sentencing
verdicts”).
{¶ 36} Similarly, Johnson contends that the trial
court erroneously referred to “aggravating circumstances”
in the plural while instructing the jury during the penalty
phase. However, Johnson again waived the issue because he
failed to raise a timely objection, and, likewise, this
does not constitute plain error. State v. Smith (2000), 89
Ohio St.3d 323, 332, 731 N.E.2d 645; State v. Keenan (1998),
81 Ohio St.3d 133, 153, 689 N.E.2d 929. There were in fact
two aggravating circumstances available for the jury to
consider during the penalty phase. Only after the jury
returned its penalty-phase verdicts recommending a death
sentence for both Counts 1 and 2 did the prosecution ask the
trial court to sentence Johnson for Count 2 only.
{¶ 37} Even if the jury improperly considered both
aggravating circumstances when it recommended a death
sentence on Count 2, our independent review, below, cures
the alleged error. See generally Clemons v. Mississippi
(1990), 494 U.S. 738, 745-746, 110 S.Ct. 1441, 108 L.Ed.2d
725; State v. Lott (1990), 51 Ohio St.3d 160, 170, 555
N.E.2d 293; State v. Cook (1992), 65 Ohio St. 3d 516, 527,
605 N.E.2d 70.
{¶ 38} Johnson’s seventeenth proposition of law is
therefore overruled.
Sufficiency of Evidence
{¶ 39} In propositions of law thirteen through
fifteen, Johnson challenges the sufficiency of the evidence
to support his convictions of kidnapping, rape, aggravated
robbery, aggravated murder, and the specification for Count
2.
A. Kidnapping
{¶ 40} Johnson raises two issues in connection with
his conviction for kidnapping Daniel. First, he argues that
he could not have kidnapped Daniel because Daniel died
before Johnson hogtied him. Second, he argues that the
kidnapping merged with the aggravated murder, and he cannot
be convicted of both offenses. We reject these contentions
for the following reasons.
{¶ 41} Regarding the first issue, the evidence does
not support Johnson’s contention that Daniel died before
being restrained. Dr. Lee testified that Daniel was still
alive when Johnson tied his hands and feet, and this
testimony supports the jury’s finding that Johnson
restrained Daniel of his liberty.
{¶ 42} Johnson also contends that during voir dire,
the state had conceded that Daniel died before Johnson
hogtied him. A review of the transcript reveals that the
prosecutor stated, “[t]he charges accuse Mr. Johnson of
going into the home of Constantina Bailey when Daniel was
there alone, beating him to death, tying him up and dragging
him into the basement * * * .” This statement is not a
concession that Johnson killed Daniel before restraining
and taking him to the basement.
{¶ 43} Accordingly, we reject Johnson’s assertions
that Daniel died before Johnson hogtied and carried him to
the basement.
{¶ 44} Regarding the second kidnapping issue,
Johnson argues that the kidnapping and murder are allied
offenses of similar import and must be merged, pursuant to
R.C. 2941.25 and our decision in State v. Logan (1979), 60
Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345.
{¶ 45} R.C. 2941.25(B) provides that two similar
offenses, when “committed separately or with a separate
animus as to each,” may be charged in the indictment and
serve as the basis for two separate convictions.
{¶ 46} In Logan, we “recognized that where the
asportation or restraint `subjects the victim to a
substantial increase in risk of harm separate and apart
from * * * the underlying crime, there exists a separate
animus.'” State v. Adams, 103 Ohio St. 3d 508,
2004-Ohio-5845, 817 N.E.2d 29, ¶ 90, quoting Logan,
60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, at
paragraph (b) of the syllabus. And, “where the restraint is
prolonged, the confinement is secretive, or the movement is
substantial so as to demonstrate a significance independent
of the other offense, there exists a separate animus as to
each offense sufficient to support separate convictions.”
Logan, paragraph (a) of the syllabus (emphasis added).
{¶ 47} Here, the record supports the conclusion that
Johnson’s kidnapping of Daniel had a significance and an
animus independent of Daniel’s murder. Tina testified that
she found Daniel hogtied and lying in a blanket behind her
washing machine in the basement of her home. Dr. Lee
testified that Daniel lived for a sufficient time for his
skin to react to the shoelaces. Even if Daniel lived only
for a few minutes after Johnson hogtied him, sufficient
evidence existed for the jury to find that Johnson intended
to prevent Daniel from getting assistance for his injuries,
had he regained consciousness. Moreover, sufficient
evidence existed for the jury to infer that Johnson carried
Daniel, while Daniel still lived, to the basement in order
to confine him in secret and to prevent anyone from finding
him and rendering aid.
{¶ 48} Hence, the jury could reasonably conclude
that, when Johnson restrained Daniel and hid him in the
basement, he committed an act that had “significance
independent of,” and an animus separate from, murder.
{¶ 49} We overrule Johnson’s thirteenth proposition
of law.
[…..]
Sentencing Opinion
{¶ 277} In his twentieth proposition, Johnson argues
that flaws in the trial court’s sentencing opinion
constitute reversible error.
{¶ 278} Johnson argues that the trial court “weighed
a wholly different aggravating circumstance than the jury
found in Count Two.” The basis for this claim is the error
in the verdict form for Count 2. As we previously
discussed, Johnson waived that error by failing to object.
Further, as we also discussed, supra, nothing in the record
suggests that the jury could have found someone else to be
the “principal offender,” and, in fact, the jury found
Johnson to be the “principal offender” with regard to the
specification to Count 1, for which the jury received an
accurately drafted verdict form.
{¶ 279} Thus, the court did not commit prejudicial
error by considering his principal offender status when
weighing the felony-murder specification.
{¶ 280} Johnson further contends that the trial
court erroneously weighed two aggravating circumstances
against his mitigation. The record supports Johnson’s
claim, as the trial court appears to have weighed the
kidnapping and rape convictions as separate aggravating
circumstances in its sentencing opinion. As we observed in
State v. Spivey (1998), 81 Ohio St.3d 405, 420, 692 N.E.2d
151, fn. 2, when a single R.C. 2929.04(A)(7) specification
charges two or more predicate felonies, those felonies must
be weighed together, as a single aggravating circumstance.
{¶ 281} However, our independent review cures this
error by the trial court. See generally Clemons v.
Mississippi (1990), 494 U.S. 738, 745-746, 110 S.Ct. 1441,
108 L.Ed.2d 725; State v. Lott (1990), 51 Ohio St.3d 160,
170, 555 N.E.2d 293.
{¶ 282} Johnson also complains that the sentencing
opinion discussed the facts surrounding his offenses. But
discussing these facts does not necessarily constitute
error, as we held in State v. Reynolds (1998), 80 Ohio
St.3d 670, 684685, 687 N.E.2d 1358: “While the trial court
discussed the facts surrounding the crime * * * in its
opinion, it did not weigh those facts as aggravating
circumstances. Instead the court reviewed the nature and
circumstances of the crime, as it was required to do
pursuant to R.C. 2929.03.”
{¶ 283} Here, the trial court did not weigh the
facts as aggravating circumstances in contravention of
Reynolds. Moreover, our independent review cures any error
in the trial court’s sentencing opinion. State v. Noling,
98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶
125, citing State v. Fox (1994), 69 Ohio St.3d 183, 191,
631 N.E.2d 124.
{¶ 284} Finally, Johnson contends that the trial
court improperly minimized the weight of the mitigating
factors. However, “[i]n imposing sentence, the assessment
of and weight given to mitigating evidence are matters
within the trial court’s discretion.” State v. Cunningham,
105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶
76. Our independent review cures any error, here, as well.
State v. Ashworth (1999), 85 Ohio St.3d 56, 67, 706 N.E.2d
1231, citing State v. Lott (1990), 51 Ohio St.3d 160, 173,
555 N.E.2d 293.
{¶ 285} We overrule Johnson’s twentieth proposition.
Cumulative Error
{¶ 286} In his twenty-first proposition, Johnson
claims that the cumulative effect of the errors alleged in
his brief denied him a fair trial. He fails to support this
proposition, however, and we overrule it. Constitutionality
of Death Penalty
{¶ 287} In his twenty-third proposition, Johnson
challenges the constitutionality of Ohio’s death penalty
statutes. This proposition is not well taken. See State v.
Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568,
syllabus (“[w]hen issues of law in capital cases have been
considered and decided by this court and are raised anew in
a subsequent capital case, it is proper to summarily
dispose of such issues in the subsequent case”).
Independent Sentence Review
{¶ 288} In his twenty-second proposition of law,
Johnson challenges the appropriateness of his death
sentence. Our responsibility is to conduct an independent
review, as mandated by R.C. 2929.05(A).
A. Aggravating Circumstance:
{¶ 289} Although the jury convicted Johnson on both
specifications in the indictment, he was sentenced by the
trial court only on Count 2 and its one aggravating
circumstance: that he committed the murder while
committing, attempting to commit, or fleeing immediately
after committing or attempting to commit the felonies of
kidnapping, rape, and aggravated robbery. The evidence
supports the jury’s finding.
B. Mitigating Factors:
{¶ 290} Johnson introduced evidence of a mitigating
factor under R.C. 2929.04(B)(3): that “because of a mental
disease or defect,” he “lacked substantial capacity to
appreciate the criminality of [his] conduct or to conform
[his] conduct to the requirements of the law” when he
killed Daniel. He also introduced evidence that he suffers
from alcoholism and drug addiction and that he had consumed
drugs and alcohol shortly before the murder.
{¶ 291} Marianna Williamson, a chemical dependency
counselor employed by Guernsey County, testified during the
penalty phase that, about a month before the murder,
Johnson came to her office without an appointment, urgently
seeking help for his drug and alcohol abuse problems. He
reported increased tolerance and withdrawal symptoms, and,
according to Williamson, “he felt something terrible would
happen if he didn’t get help[.] * * * [H]e stated I may die
or go crazy.”
{¶ 292} Williamson diagnosed Johnson as dependent on
alcohol, marijuana, and crack, and she scheduled Johnson
for another appointment. He failed to keep it and could not
be reached. Eventually, in August 2003, the county’s
chemical dependency program dropped him for noncompliance.
{¶ 293} According to the records of Williamson’s
agency, Johnson sought help in 1992 and 1999 for chemical
dependency problems. She testified that Johnson told her
that previously he had been referred to an intensive
outpatient program but that he never successfully completed
counseling.
{¶ 294} Dr. Mark Fettman, a psychiatrist who is
board-certified in addiction psychiatry, testified that he
interviewed Johnson, consulted with the defense
psychologist, Dr. Jackson, and reviewed the following: Dr.
Jackson’s report; the report of defense mitigation
specialist, Marcia Heiden; and records of the Guernsey
County Alcohol and Drug Services agency. Dr. Fettman
diagnosed Johnson as addicted to crack cocaine and
dependent on marijuana and alcohol. Fettman also testified
that addiction by itself does not make a person want to
commit murder or other crimes.
{¶ 295} Johnson told Dr. Fettman that, between 4:00
and 4:30 a.m. on the day of the murder, he consumed two
32-ounce containers of “E & J,” which is “some kind of hard
liquor [or] * * * distilled wine.” Johnson also claimed
that he consumed $40 worth of crack cocaine and unspecified
amounts of powdered cocaine and marijuana. According to
Fettman, a person with bipolar disorder “would probably be
experiencing mood swings” if intoxicated with cocaine,
marijuana, and alcohol. These would “[a]ffect his view of
reality and also * * * his judgment.”
{¶ 296} Dr. Richard E. Jackson, a clinical
psychologist, interviewed Johnson in November 2003 and then
again in January 2004, and he administered tests, including
the Minnesota Multiphasic Personality Inventory (MMPI-2).
{¶ 297} Dr. Jackson found that Johnson had a bipolar
disorder with probable psychotic characteristics and
paranoid personality disorder. When in the manic phase of
his bipolar disorder, Jackson testified, Johnson suffers
from delusions. He also suffers from “variable reality
contact,” which means that “for very extended lengths of
time * * * [Johnson’s] reality awareness can be perfectly
adequate.” However, when “stressors” — especially
unexpected ones — exist, Johnson has an increased
likelihood of “outbursts” that are often associated with
“an alteration of reality contact.” This occurs “only when
stressors hit.” “[V]ery shortly thereafter, [Johnson] can
be right back to having normal perceptions and interacting
in a perfectly appropriate way.”
{¶ 298} In a written report admitted into evidence
during the penalty phase, Dr. Jackson explained that he
asked Johnson why he had tied Daniel up, and Johnson
explained that he was “nervous [and] scared,” “seeing
things and hearing things,” but that “it could of [sic]
been shadows, and maybe what I was hearing there was a dog
in the house.”
{¶ 299} When asked whether Johnson’s mental
disorders would deprive him of substantial capacity to
conform to the law, Dr. Jackson testified: “I think that
whenever an individual is displaying severe mental illness
that it is very likely that during a manic state that he
would lack the substantial capacity to conform conduct to
the requirements of the law.” However, Dr. Jackson did not
testify that Johnson suffered from a manic state at the
time of the murder. And, he conceded that many who suffer
from the same type of problems as Johnson do not commit
aggravated murder.
{¶ 300} At trial, Johnson argued that the evidence
supported the R.C. 2929.04(B)(2) mitigating factor, that
is, that he committed the offense while under “duress,
coercion, or strong provocation.” Although the trial court
instructed on this mitigating factor, the record reveals no
evidence of duress, coercion, or provocation.
{¶ 301} The defense also called Bonnie George, a
friend of Johnson’s for 10 to 13 years, to testify on his
behalf. Johnson sometimes stayed at her house, but their
relationship did not become romantic. George described
Johnson as “real polite” and a “good guy” who had “always
helped [her] out.” She testified that Johnson had held
various jobs over the years and that when he stayed with
her, he helped by cooking, cleaning, and watching her
child.
{¶ 302} George testified that she never saw Johnson
take drugs or act violently. Asked about her reaction when
hearing of the murder, she stated: “[T]hat wasn’t the
Marvin I knew.” However, she testified that, on the night
of August 3-4, 2003, Johnson stole $775 from her and her
granddaughter while he stayed at George’s home. Johnson “had
never done anything like that to [George]” before, and
George never expected it. Despite this, George visited
Johnson in jail, where they discussed the Bible and prayed
together.
{¶ 303} George testified that Johnson sometimes
spoke of his family in Alabama. He had a “really close”
relationship with one of his sisters, George told the jury,
and he had another sister to whom he had been close in his
youth. George testified that Johnson did not have a close
relationship with the rest of his family and had not visited
them since George had known him.
{¶ 304} The evidence of mitigation does not outweigh
that of aggravation. Voluntary intoxication generally
deserves little weight as a mitigating factor. See, e.g.,
State v. Dennis (1997), 79 Ohio St.3d 421, 436, 683 N.E.2d
1096; State v. Campbell (2002), 95 Ohio St.3d 48, 51, 765
N.E.2d 334. In addition, while Johnson may have had mood
swings due to intoxication on August 15, 2003, there is no
evidence in the record that he suffered a manic phase at
the time of the murder.
{¶ 305} Although stress may affect Johnson’s ability
to perceive reality, the record does not show that Johnson
faced “stressors” at the time of the murder. And, though we
acknowledge Williamson’s and Fettman’s testimony regarding
the severity of drug withdrawal symptoms, no evidence shows
that Johnson experienced withdrawal at the time of the
murder. The lack of evidence regarding stressors has
significance because, as Dr. Jackson testified, “[i]t’s
only when stressors hit” that “you’re likely to see
outbursts.” (Emphasis added.)
{¶ 306} Further, the record does not suggest that
Johnson killed Daniel during either an “outburst,” a
stress-caused “alteration of reality contact,” or any other
delusional moment. Rather, the record reveals that Johnson
acted deliberately, with premeditation and advance
planning. Moreover, the record demonstrates that Johnson
wished to hurt Tina, as demonstrated by his statement
during trial: “Do you recall times after sex with me * * *
that you would, after finished, you would get up and go to
the window? * * * You remember that feeling? That’s what it
felt like to beat your son in the f* * *ing head.”
{¶ 307} Johnson’s employment record, his history as
an abused and neglected child, and his redeeming traits of
spirituality, politeness, and helpfulness have little
weight.
{¶ 308} We conclude that the felony-murder
aggravating circumstance in this case outweighs the
mitigating factors beyond a reasonable doubt.
C. Proportionality:
{¶ 309} The death sentence in this case is
proportionate to sentences previously approved by this
court in aggravated-murder cases with kidnapping, rape, or
aggravated robbery specifications. See, e.g., State v.
Twyford (2002), 94 Ohio St.3d 340, 368, 763 N.E.2d 122
(kidnapping); State v. Hartman (2001), 93 Ohio St.3d 274,
306, 754 N.E.2d 1150 (kidnapping); State v. Murphy (2001),
91 Ohio St.3d 516, 547, 747 N.E.2d 765 (aggravated
robbery); State v. Mason (1998), 82 Ohio St.3d 144,
170-171, 694 N.E.2d 932 (rape); State v. McGuire (1997), 80
Ohio St.3d 390, 404, 686 N.E.2d 1112 (rape); State v. Fox
(1994), 69 Ohio St.3d 183, 195, 631 N.E.2d 124
(kidnapping); State v. Clark (1988), 38 Ohio St.3d 252,
264-265, 527 N.E.2d 844 (aggravated robbery).
{¶ 310} Accordingly, we affirm the convictions and
death sentence in this case.
Judgment affirmed.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR
and LANZINGER, JJ., concur.
[fn1] According to Tina’s testimony, Johnson told her that
Daniel “would be okay” if she gave in to Johnson’s demands;
otherwise Johnson “couldn’t guarantee” Daniel’s safety.