State v. Filiaggi
Ohio Supreme Court
State v. Filiaggi, 1999 Ohio 99 (Ohio 1999)
86 Ohio St. 3d 230
Lundberg Stratton, J.
State v. Filiaggi
Opinion
[This opinion has been published in Ohio Official Reports at86 Ohio St.3d 230
.]
THE STATE OF OHIO, APPELLEE, v. FILIAGGI, APPELLANT.
[Cite as State v. Filiaggi, 1999-Ohio-99.]
Criminal law—Aggravated murder—Death penalty upheld, when—Verdicts on
noncapital offenses reversed and cause remanded to three-judge trial panel
when only presiding judge entered the verdicts.
(No. 98-287—Submitted April 13, 1999—Decided July 29, 1999.)
APPEAL from the Court of Appeals for Lorain County, No. 95CA006240.
__________________
{¶ 1} This appeal involves charges from two separate incidents concerning
the defendant-appellant, James J. Filiaggi, and his ex-wife, Lisa Huff Filiaggi. The
first incident resulted in charges of felonious assault and domestic violence; the
second incident resulted in charges of aggravated murder, attempted aggravated
murder, aggravated burglary, and kidnapping. A three-judge panel convicted
defendant and sentenced him to death for the aggravated murder of Lisa Huff
Filiaggi (“Ms. Filiaggi”).
{¶ 2} Defendant and Ms. Filiaggi married in December 1991. There were
two children born during the marriage. Ms. Filiaggi filed for divorce in August
1992, and the divorce was granted in February 1993. Ms. Filiaggi received custody
of the children, although defendant had visitation rights. Defendant was required
to pay child support. Relations between defendant and Ms. Filiaggi were strained.
{¶ 3} In the spring of 1993, Ms. Filiaggi and the two children moved into
the home of Eric Beiswenger. In the fall of 1993, Ms. Filiaggi and Beiswenger
became engaged, and shortly thereafter, became the victims of telephone
harassment and vandalism. Beiswenger and Ms. Filiaggi suspected that defendant
was responsible for the acts, and set up video cameras hoping to capture him on
tape. Ms. Filiaggi also carried a tape recorder with her.
SUPREME COURT OF OHIO
{¶ 4} In the fall of 1993, Ms. Filiaggi and Beiswenger recorded a phone
conversation in which defendant told Ms. Filiaggi that there are going to be “more
headaches and heartaches if she tries to get more money out of him.”
{¶ 5} On December 19, 1993, Ms. Filiaggi and Beiswenger went to the
home of defendant’s parents to pick up the children after a visit. Ms. Filiaggi
carried a tape recorder in her pocket, which recorded the incident. Defendant and
Ms. Filiaggi were arguing while defendant put one child in a car seat in the back
seat of the vehicle. After putting the child in the seat, defendant grabbed Ms.
Filiaggi around the neck and she began screaming. Beiswenger, who was outside
the vehicle, grabbed defendant by the waist and pulled him off her. Defendant
turned around and struck Beiswenger in the face numerous times. Beiswenger
suffered multiple broken bones in his face. The assault ended when defendant’s
mother came out, grabbed defendant, and yelled at him to stop. The recording of
the incident was admitted into evidence.
{¶ 6} Beiswenger and Ms. Filiaggi pressed charges against defendant, and
he was arrested and indicted for felonious assault and domestic violence. He was
released on bond awaiting trial.
{¶ 7} The picture window of Beiswenger’s house was also broken on
numerous occasions. On January 20, 1994, the last time there was an attempt to
break the window, the video camera recorded the incident and clearly showed
defendant as the person throwing a bottle at the window. Charges were filed against
defendant for attempted vandalism, criminal trespassing, and intimidation of a
witness.
{¶ 8} Two days later, defendant purchased a 9 mm Luger pistol, which had
two clips for ammunition. He also purchased ammunition for the weapon, despite
the fact that he already possessed another gun. According to the defense theory, he
intended to go to Ms. Filiaggi’s house and kill himself in front of her.
{¶ 9} On January 24, 1994, defendant took a $1,000 cash advance on his
2
January Term, 1999
Visa card. He left $600 to $700 with his girlfriend, Tracey Jones. At approximately
10:45 p.m., the Lorain Police Department dispatcher received a call from Ms.
Filiaggi. The call was tape-recorded. Ms. Filiaggi told the dispatcher that her ex-
husband, defendant, was at her back door and was breaking into her house.
Defendant broke down the door and entered the house. Still carrying the telephone,
Ms. Filiaggi fled out the front door. A neighbor, Robert Mutnansky, who lived two
doors away, saw Ms. Filiaggi standing in the yard of the intervening neighbor and
frantically looking around. Another neighbor was awakened by someone
screaming, “God help me, someone, please, help me, he’s going to kill me.” Ms.
Filiaggi saw Mutnansky looking out the window and ran towards his front door.
He let her in, and Ms. Filiaggi told him that her ex-husband was after her with a
gun. She looked petrified and ran past him while Mutnansky locked the door
behind her.
{¶ 10} Moments later, Mutnansky heard a couple of bangs on the door and
the door came crashing in. Defendant had a gun in his hand and asked Mutnansky
where she went. Mutnansky said he did not know, and defendant told Mutnansky
to help find her. They both started down the hallway. When they came to a linen
closet, with the door partially open, defendant opened the door and found Ms.
Filiaggi. Defendant was very angry and pulled Ms. Filiaggi from the closet by the
arm and swung her into the bathroom, which was across the hall from the closet.
There was a struggle. Mutnansky heard defendant tell Ms. Filiaggi, “This will teach
you to fuck with me,” and then heard two shots fired.
{¶ 11} Although shot in the shoulder, Ms. Filiaggi was able to get away and
run across the hallway into one of the bedrooms. Mutnansky, standing partially in
one of the bedrooms, was pleading with defendant not to shoot her. Mutnansky
was in another bedroom and defendant told Mutnansky to close the bedroom door
and stay out. Mutnansky again heard defendant tell Ms. Filiaggi, “This will teach
you not to fuck with me” and heard two more shots. Mutnansky then heard
3
SUPREME COURT OF OHIO
footsteps down the hallway. Mutnansky came out of the bedroom and saw Ms.
Filiaggi slumped against the wall. She had been shot in the head. Mutnansky
attempted to call 911, but noticed a policeman coming through his front door.
{¶ 12} About twenty minutes away, in Amherst Township, Delbert Yepko,
Ms. Filiaggi’s stepfather, was watching the news. At 11:15 p.m., he heard pounding
at the front door. While he had a motion detector light on the side of the trailer, it
was not on and the area outside the door was dark. He was home alone, and his
house had previously been vandalized, so he picked up a can of red pepper spray
and went to the door. He opened the door about three inches and saw defendant.
Defendant then bashed the door in.
{¶ 13} Defendant came in the house and said, “Are you ready to die?”
Yepko saw a gun in defendant’s right hand. Defendant brought the gun up to shoot
Yepko and said, “I’m going to kill you.” Yepko sprayed defendant in the face with
the pepper spray, and defendant shot at him, but did not hit him. Yepko managed
to get out of the trailer, without a coat or shoes. He ran to four separate trailers,
knocking on doors, finally gaining admittance to the fourth one, where he was able
to call 911. He tried to call Ms. Filiaggi, but was shaking too badly.
{¶ 14} On the morning of January 25, 1994, between 8:00 and 9:00 a.m.,
defendant arrived at the home of Howard R. Matlack, a college friend. Defendant
asked Matlack if he could “crash,” and he lay down on the couch. Matlack took his
girlfriend to work later that morning. His girlfriend later called Matlack and told
him that defendant had killed Ms. Filiaggi. Matlack confronted defendant about it.
Defendant got up off the couch and a gun fell to the floor. Defendant then left
Matlack’s house.
{¶ 15} On January 27, 1994, defendant took another $1,000 cash advance.
Defendant fled the state, but returned to Lorain, when he discovered that his parents
might lose their house, which had been put up for his bond on the previous charges.
Defendant had rented a car at the Pittsburgh Airport that was later recovered in an
4
January Term, 1999
area near defendant’s parents’ home. The car contained the rental agreement as
well as several rounds of 9 mm ammunition. The murder weapon was never found.
{¶ 16} Defendant entered a plea of not guilty by reason of insanity. He also
waived his right to be tried by a jury. A three-judge panel heard the evidence
presented on all charges. The three-judge panel entered its verdict on the
aggravated murder charge, but only the presiding judge entered a verdict on the
remaining charges.
{¶ 17} The three-judge panel found defendant guilty of aggravated murder
and the three capital specifications: the offense was committed for the purpose of
escaping detection, apprehension, trial, or punishment for another offense
committed by defendant (R.C. 2929.04[A][3]); the offense was part of a course of
conduct involving the purposeful killing of or attempt to kill two or more persons
by defendant (R.C. 2929.04[A][5]); and the victim of the offense was a witness to
prior offenses by defendant and was purposely killed to prevent her testimony in a
criminal proceeding concerning those prior offenses (R.C. 2929.04[A][8]). The
case proceeded to the penalty phase and the panel sentenced defendant to death.
The court of appeals affirmed the convictions and death sentence.
{¶ 18} The cause is now before this court upon an appeal as of right.
__________________
Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Assistant Prosecuting Attorney, for appellee.
Jack W. Bradley and Renee W. Green, for appellant.
__________________
LUNDBERG STRATTON, J.
{¶ 19} In this appeal, defendant raises twelve propositions of law. We
sustain defendant’s fourth proposition of law and remand the cause to the trial court.
We affirm defendant’s aggravated-murder conviction, and after independently
reviewing the record, weighing the aggravating circumstances against the
5
SUPREME COURT OF OHIO
mitigating factors, and examining the proportionality of the death sentence in this
case to the penalty imposed in similar cases, we affirm defendant’s sentence of
death.
Competency to Stand Trial
{¶ 20} The trial proceedings were set to begin on July 11, 1995. Defendant
had entered a plea of not guilty by reason of insanity; however, the question of
competency had not been raised. On the way to the courthouse for the start of the
trial, officers shackled defendant and placed a stun belt on him for security
purposes. En route, defendant was accidentally shocked by the stun belt. As a
result, he was shaken up, and evidence indicated that he might have been placed on
Valium. The court recessed until that afternoon. When court resumed, defendant,
with his three attorneys present, waived his right to trial by jury. After opening
arguments, eight state’s witnesses testified. Court then recessed for the day.
{¶ 21} The next morning, July 12, 1995, defense counsel told the trial court
that in the opinion of all three defense counsel, defendant was not competent to
stand trial, i.e., to understand the nature of the charges against him or to assist in
his defense. The court contacted the local forensics center and requested that the
defendant be examined to determine if he was competent. The forensics center
immediately accommodated the court’s request, and court recessed for the day.
{¶ 22} On July 13, 1995, the court held a competency hearing. Defendant
gave counsel permission to proceed without him. Dr. Thomas Haglund, who had
examined defendant on July 12, testified that he had interviewed defendant for
about forty-five minutes. He related that defendant believed that he was still
receiving shocks from the stun belt. Dr. Haglund indicated that defendant was quite
tense and agitated during the interview. At one point during the interview,
defendant began to lose control, breathed more rapidly, and his legs and feet began
to shake.
{¶ 23} On cross-examination, Dr. Haglund testified that he did not think
6
January Term, 1999
that defendant was malingering. It was his opinion that given the state that
defendant was in as a result of the stun belt incident, he was concerned about
defendant’s mental condition and did not think defendant was able to continue with
the trial. Although Dr. Haglund had not talked with defendant on the day of the
competency hearing, he testified that he believed the defendant’s emotional state
could be turned around quickly and was on a day-to-day status.
{¶ 24} Dr. Haglund also testified that during the interview, defendant was
mentally alert, oriented, and able to answer questions. When questioned, defendant
was able to tell Dr. Haglund what he had been charged with and who his attorneys
were, as well as give a brief description of the testimony from the day before.
Defendant understood that he was under a doctor’s care, and identified his doctor
and the medications he was currently receiving. Defendant also knew why he was
on the medications.
{¶ 25} In response to the prosecutor’s questions, Dr. Haglund stated that
defendant understood the proceedings against him, and was able to consult with his
attorneys and to assist in preparing his defense. Again, on cross-examination, Dr.
Haglund testified that he believed defendant to be able to assist in his own defense
and to consult with counsel and understand the court proceedings. Defense counsel
declined to call any witnesses, nor did counsel offer any testimony to contradict Dr.
Haglund’s findings or his report that the defendant had slept well and was in
acceptable physical condition at the time of the examination.
{¶ 26} The court determined that defendant was competent to stand trial,
and that the trial would proceed. Defense counsel requested that Dr. Haglund be
given the opportunity to examine defendant again, and also requested that
defendant’s own treating psychiatrist be given the opportunity to examine him. The
court determined that other evidence concerning defendant’s medical condition was
not relevant on this point. Defense counsel’s motion for a mistrial was overruled.
{¶ 27} After one state’s witness testified, defense counsel put the following
7
SUPREME COURT OF OHIO
matters on the record: that defendant was brought into court in a wheelchair with
handcuffs, leg irons and a body belt; that in defense counsel’s opinion, defendant
was incoherent; that he was not following the proceedings and could not
communicate or assist defense counsel; that defense counsel did not believe that
defendant was malingering; and that his pulse rate was one hundred twenty.
Defense counsel again requested a mistrial. The prosecutor responded that defense
counsel had several opportunities to speak with defendant throughout the day and
never mentioned to the court that defendant was incoherent before the deputies
transported defendant to court. The prosecutor stated that, in his opinion, defendant
was malingering. The motion for mistrial was denied.
{¶ 28} When the trial resumed on July 14, defense counsel again indicated
that he did not think that defendant was competent to proceed. However, defense
counsel did not file any additional information to support these allegations. Further,
a deputy who guarded the defendant during the noon recess testified that defendant
was doing stretching exercises, seemed to be fine, was not shaking, was in control
of himself, and was conversing in a normal tone with his lawyers. The court
overruled the motion, as well as defense counsel’s motion for a mistrial.
{¶ 29} Defense counsel made similar motions concerning defendant’s
competence and requested a mistrial throughout the course of the trial. Again, these
motions were unsupported and, consequently were denied.
{¶ 30} After defendant was convicted and sentenced to death, defense
counsel filed a motion for new trial on the grounds that defendant was not
competent to stand trial. Attached to the motion were affidavits by his counsel and
a physician, and a report by the psychiatrist who had been treating defendant before
and during trial. The defendant also attached a report of a radiology examination
that was performed on July 21, 1995 (after the date of conviction but before the
sentencing phase), which indicated that there had been some change in defendant’s
brain since a prior examination on March 25, 1995. The affidavits and report
8
January Term, 1999
described some physiological observations of defendant during the course of trial,
which included increased respiration, elevated pulse, sweating, shaking, and
stammering. The trial court denied the motion for new trial.
{¶ 31} Former R.C. 2945.37, in effect at the time of defendant’s trial,
provided:
“(A) In a criminal action in a court of common pleas or municipal court, the
court, prosecutor, or defense may raise the issue of the defendant’s competence to
stand trial. * * * If the issue is raised after trial has begun, the court shall hold a
hearing on the issue only for good cause shown.
“A defendant is presumed competent to stand trial, unless it is proved by a
preponderance of the evidence in a hearing under this section that because of his
present mental condition he is incapable of understanding the nature and objective
of the proceedings against him or of presently assisting in his defense.
“***
“The prosecutor and defense counsel may submit evidence on the issue of
the defendant’s competence to stand trial.”
{¶ 32} When the question of competency arose, the court, having
determined that there was good cause, ordered that defendant be examined. A
hearing was held the day after the evaluation. Pursuant to R.C. 2945.37, the defense
had the burden of proving that defendant was incompetent. The only witness called
during the hearing was Dr. Haglund.
{¶ 33} As stated, Dr. Haglund testified that defendant was competent to
stand trial. Dr. Haglund wavered only on the issue of whether defendant was
capable of going forward with the trial due to his mental/emotional state. However,
this had more to do with the stun belt incident and some follow-up incidents where
correction officers attempted to restrain him before transport. These events served
as the basis for Dr. Haglund’s desire to reexamine defendant, not that defendant
had somehow become incompetent from the previous day.
9
SUPREME COURT OF OHIO
{¶ 34} At the time the trial court was called upon to decide defendant’s
competence, the information indicated that although shaken from the stun belt
incident, defendant had come to trial that afternoon, July 11, waived his right to a
jury trial, and sat through a half a day of testimony. The court based its
determination of competence on those factors, in combination with Dr. Haglund’s
opinion and the court’s own observations of the defendant’s behavior. Defendant
did not carry his burden of proving incompetence.
{¶ 35} After the trial court found defendant competent, defense counsel
persisted in their efforts to obtain an additional evaluation of competence. Their
requests were based on their own observations of defendant during the trial
proceedings. Even though defendant was being treated by a psychiatrist who
examined him four days after the stun belt incident, an affidavit by the doctor was
not presented until the new trial motion was filed. Based on the evidence presented
at the time of the hearing, the trial court’s decision was proper.
{¶ 36} The record indicates that defense counsel raised concerns about
defendant’s mental state during the course of the trial. Given that defense counsel
are officers of the court, their assertions cannot be dismissed. However, in State v.
Chapin (1981), 67 Ohio St.2d 437,21 O.O.3d 273
,424 N.E.2d 317
, we held: “An unqualified suggestion of defendant’s incompetency to stand trial by defense counsel during trial without additional objective indications such as, but not limited to, supplemental medical reports, defendant’s conduct at trial or specific reference to defendant’s irrational behavior or the like does not meet the ‘good cause shown’ standard of R.C. 2945.37.”Id.,
paragraph one of the syllabus.
{¶ 37} During the course of the trial, defense counsel filed no additional
information to support their allegations of incompetency. Further, defense
counsel’s statements must be balanced against the court’s own observations, as well
as the statements of the deputy sheriffs who also observed defendant (although such
statements were not under oath). Considering the totality of the evidence, the trial
10
January Term, 1999
court did not abuse its discretion in denying the motions for additional evaluation
and mistrial.
{¶ 38} While defendant did file additional information with his motion for
new trial, the standard of review remains whether the trial court abused its
discretion. State v. Schiebel (1990), 55 Ohio St.3d 71,564 N.E.2d 54
, paragraph one of the syllabus; State v. Williams (1975),43 Ohio St.2d 88
,72 O.O.2d 49
,330 N.E.2d 891
. In the entry denying the new trial motion, the presiding judge considered the additional medical evidence, and still determined that defendant was competent to stand trial. That determination was based on the court’s own observations, as well as unrefuted representations of correctional officers who observed defendant showering, eating meals, and conversing with other inmates, correctional officers and, upon request, with his attorneys. The detailed entry of the trial court fails to support defendant’s claim that the court’s decision was unreasonable, arbitrary, or unconscionable. Thus, we find no abuse of discretion. State v. Adams (1980),62 Ohio St.2d 151, 158
,16 O.O.3d 169, 173
,404 N.E.2d 144, 149
. Accordingly, we overrule defendant’s first and second propositions of
law.
Jury Waiver Colloquy
{¶ 39} In his third proposition of law, defendant makes two specific
arguments concerning his jury waiver on July 11. First, he argues that a jury waiver
in a capital case is not made knowingly, intelligently, and voluntarily unless the
defendant is aware of all the implications of the waiver. Second, he argues that
because he was accidentally shocked with the stun belt on the morning of trial, and
was on Valium as a result, his waiver was not knowing, voluntary, and intelligent.
{¶ 40} Defendant first asserts that this court’s decision in State v. Post
(1987), 32 Ohio St.3d 380,513 N.E.2d 754
, is inconsistent with State v. Jells (1990),53 Ohio St.3d 22
,559 N.E.2d 464
, paragraph one of the syllabus. We held
in Post, “[T]his court indulges ‘ * * * in the usual presumption that in a bench trial
11
SUPREME COURT OF OHIO
in a criminal case the court considered only the relevant, material, and competent
evidence in arriving at its judgment unless it affirmatively appears to the contrary.’
” Id.,32 Ohio St.3d at 384
,513 N.E.2d at 759
, quoting State v. White (1968),15 Ohio St.2d 146, 151
,44 O.O.2d 132, 136
,239 N.E.2d 65, 70
. In Jells, we held that
there 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. Defendant
now argues that after this court’s decision in Post, the defendant must be advised
of the presumption of correctness that will attach to the findings of the three-judge
panel.
{¶ 41} Since Jells holds that no inquiry is required, the trial court’s failure
to make specific inquiries of the defendant cannot be error. “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.” Id.,53 Ohio St.3d at 26
,559 N.E.2d at 468
. Here, the trial judge read the waiver aloud, and asked defendant if “this [was]
your desire?” Defendant answered in the affirmative. Pursuant to Jells, no more
was required.
{¶ 42} Defendant also argues that his waiver was not knowing, intelligent,
and voluntary because “the waivers were signed at a time shortly after appellant
had been administered the shock of 50,000 volts of electricity from a stun belt he
was wearing * * * [and] had just been placed under the influence of Valium.” The
record supports defendant’s claim that he was shocked by the stun belt; however,
the record does not indicate the voltage level. The record also indicates that the
trial judge stated: “The defendant is shaken, and he may be on Valium.” The court
took a recess directly after this incident for the remainder of the morning, and the
court then reconvened at 1:30 p.m. Immediately upon reconvening, the parties
addressed the subject of the waivers and made opening statements. Nothing
indicates that defendant was unable to make a decision concerning the jury waiver.
Defendant was represented by three attorneys, one of whom was a physician, and
12
January Term, 1999
they never indicated that defendant would not be able to waive his right to a jury.
Further, while defense counsel requested a mistrial and additional evaluations of
defendant during the course of the trial alleging incompetence, they never asked the
court to revisit the jury waiver issue. The record does not support defendant’s claim
that his waiver was not knowing, intelligent, and voluntary. Therefore, we overrule
this proposition of law.
Determination of the Charges by One versus Three Judges
{¶ 43} The presiding judge consolidated defendant’s cases. The first case
(No. 93CR044726) included charges of felonious assault and domestic violence
after an altercation by defendant with Ms. Filiaggi and Beiswenger in December
1993. The second case (No. 94CR044866) involved charges of aggravated murder,
attempted aggravated murder, aggravated burglary, and kidnapping on January 24,
1994. Defendant filed a motion to consolidate the cases for trial, which was
granted. Defendant waived his right to be tried by a jury in both cases. However,
in the second case, the three-judge panel decided only the aggravated murder count
and the accompanying specifications. The presiding judge alone determined all the
remaining charges (attempted aggravated murder, aggravated burglary, and
kidnapping) connected to the death penalty case. In his fourth proposition of law,
defendant challenges that procedure. Defendant does not challenge the convictions
for felonious assault and domestic violence (No. 93CR044726), the consolidated
case.
{¶ 44} It is clear from the jury waiver colloquy that the presiding judge
thought that defendant was entitled to a three-judge panel only on the aggravated
murder charge, and that he alone should determine guilt on the remaining counts.
Defendant signed the waivers. The three trial judges sat and collectively listened
to all the testimony as to all the charges, but the panel entered its verdicts only on
the aggravated murder charge and specifications. The presiding judge decided the
13
SUPREME COURT OF OHIO
remaining charges.1
{¶ 45} The state contends that defendant consented to the procedure and
therefore waived any error. However, we conclude that this jurisdictional matter
cannot be waived.
{¶ 46} R.C. 2945.06 provides:
“If the accused is charged with an offense punishable with death, he shall be
tried by a court to be composed of three judges, consisting of the judge presiding at
the time in the trial of criminal cases and two other judges to be designated by the
presiding judge or chief justice of that court, and in case there is neither a presiding
judge nor a chief justice, by the chief justice of the supreme court. The judges or a
majority of them may decide all questions of fact and law arising upon the trial;
however, the accused shall not be found guilty or not guilty of any offense unless
the judges unanimously find the accused guilty or not guilty.” (Emphasis added.)
{¶ 47} In State v. Smith (1997), 80 Ohio St.3d 89, 104,684 N.E.2d 668
,
684-685, the defendant argued that even though all charges were present in the
same indictment, his noncapital offenses were separate from the capital offenses,
and thus he should be allowed to appeal the noncapital offenses to the court of
appeals. We held, however, that we had jurisdiction over the entire case, and not
just certain counts, charges, or sentences. Here, the statute makes no provision for
trying the noncapital counts by a single judge when a three-judge panel tries the
capital offenses. In the thirty-eight previous three-judge panel cases reviewed by
this court, no previous trial court has interpreted R.C. 2945.06 as did the presiding
judge (and the court of appeals) in this case.
{¶ 48} We find persuasive the cogent reasoning of another state court that
1. The presiding judge found defendant not guilty of the kidnapping charges.
14
January Term, 1999
faced a similar situation:
“[W]here it is apparent from the allegations that the matter alleged is within
the class of cases in which a particular court has been empowered to act, jurisdiction
is present. Any subsequent error in the proceedings is only error in the ‘exercise of
jurisdiction,’ as distinguished from the want of jurisdiction in the first instance. *
**
“ ‘[I]n cases where the court has undoubted jurisdiction of the subject
matter, and of the parties, the action of the trial court, though involving an
erroneous exercise of jurisdiction, which might be taken advantage of by direct
appeal, or by direct attack, yet the judgment or decree is not void though it might
be set aside for the irregular or erroneous exercise of jurisdiction if appealed from.
It may not be called into question collaterally.’ ” (Emphasis sic.) In re Waite
(1991), 188 Mich.App. 189, 200,468 N.W.2d 912, 917
, quoting Jackson City Bank & Trust Co. v. Fredrick (1935),271 Mich. 538, 544-546
,260 N.W. 908, 909
.
{¶ 49} We have consistently required strict compliance with Ohio statutes
when reviewing the procedures in capital cases. See State v. Pless (1996), 74 Ohio
St.3d 333,658 N.E.2d 766
, paragraph one of the syllabus.
{¶ 50} Since R.C. 2945.06 mandates that “the accused shall not be found
guilty or not guilty of any offense unless the judges unanimously find the accused
guilty or not guilty,” the presiding judge did not have sole authority to enter a
verdict on the noncapital charges. Thus, the trial is still incomplete because
outstanding charges remain to be decided by the three-judge panel. See State v.
Green (1998), 81 Ohio St.3d 100,689 N.E.2d 556
, syllabus.
{¶ 51} Therefore, we reverse and remand to the trial panel the verdicts on
the non-capital offenses, attempted aggravated murder, aggravated burglary, and
kidnapping. Upon remand, the trial panel is required to proceed from the point at
which the error occurred. Montgomery Cty. Commrs. v. Carey (1853), 1 Ohio St.
463, paragraph one of the syllabus; State ex rel. Stevenson v. Murray (1982), 69
15
SUPREME COURT OF OHIO
Ohio St.2d 112, 113, 23 O.O.3d 160,431 N.E.2d 324, 325
. Thus, the three-judge
panel, having already heard all of the evidence, should reconstitute itself and
deliberate anew on the charges of attempted aggravated murder, aggravated
burglary, and kidnapping. The three-judge panel, as a whole, considered the
aggravated murder charge, specifications, and penalty, as required by the statute;
therefore, the verdicts on that charge are not affected.
Inquiry on Waiver of Right to Testify
{¶ 52} In his fifth proposition of law, defendant argues that he was deprived
of due process rights because the trial court did not, sua sponte, inquire as to
whether his “failure to testify was a result of his own thinking.”
{¶ 53} We recently addressed this issue for the first time in State v. Bey
(1999), 85 Ohio St.3d 487, 499,709 N.E.2d 484, 497
, and held that “a trial court is
not required to conduct an inquiry with the defendant concerning the decision
whether to testify in his defense.” (Emphasis added.)
{¶ 54} In this case, nothing in the record suggests that defendant was
unaware of his right to testify or that defendant’s counsel failed to advise him of
his right. Nothing suggests that defendant wanted to testify or was denied the
opportunity to do so. Accordingly, we overrule defendant’s fifth proposition of
law.
16
January Term, 1999
Failure to Admit Psychological Reports
{¶ 55} Defendant presented a clinical psychologist and three psychiatrists
as experts during the defense case. The state called one forensic psychiatrist to
testify in rebuttal. At the close of the rebuttal case, the state moved for the
admission of the report that its expert had prepared. Defense counsel objected,
arguing that the court heard the testimony, but the court admitted the report. At
that point, defense counsel asked the court to admit his experts’ reports. The
prosecutor objected, arguing, “[T]hey had their chance, it’s not their case.” The
trial court denied the defense’s request. In his sixth proposition of law, defendant
argues that the trial court erred in refusing to permit the admission of the defense
experts’ reports.
{¶ 56} R.C. 2945.10(C) specifies the order of proceedings at trial: “The
state must first produce its evidence and the defendant shall then produce his
evidence.” “The state will then be confined to rebutting evidence, but the court, for
good reason, in furtherance of justice, may permit evidence to be offered by either
side out of its order.” R.C. 2945.10(D). Moreover, this court has held that “[t]he
admission or exclusion of relevant evidence rests within the sound discretion of the
trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375,510 N.E.2d 343
,
paragraph two of the syllabus.
{¶ 57} The appropriate time for defense counsel to have requested
admission of the reports of the defense experts was during the defense’s case.
While it certainly was within the court’s discretion to have admitted the reports at
the close of the rebuttal case, the court’s refusal to admit the reports does not
constitute an abuse of discretion, which would be “more than an error of law or of
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157,16 O.O.3d 169, 173
,404 N.E.2d 144, 149
. Defendant has not met that burden here.
{¶ 58} Further, even if the trial court erred in excluding the reports, the error
17
SUPREME COURT OF OHIO
was harmless. The court had the opportunity to hear all the witnesses testify in
person and, therefore, the information given by the experts was conveyed to the
trial court and the reports were merely cumulative. Accordingly, we overrule this
proposition of law.
Failure to Find Defendant Not Guilty by Reason of Insanity
{¶ 59} Defendant entered a plea of not guilty by reason of insanity. A plea
of not guilty by reason of insanity is an affirmative defense that must be proven by
a preponderance of the evidence. State v. Brown (1983), 5 Ohio St.3d 133, 5 OBR 266,449 N.E.2d 449
. A person is not guilty by reason of insanity only if he or she
proves that “at the time of the commission of the offense, he did not know, as a
result of a severe mental disease or defect, the wrongfulness of his acts.” Former
R.C. 2901.01(N); 2901.05.
{¶ 60} Four experts testified for the defense, and one for the state. In his
seventh proposition of law, defendant argues that the panel “simply lost its way in
the thicket of expertise.” Defendant appears to be arguing that he met his burden
of proving the defense of not guilty by reason of insanity by a preponderance of the
evidence and that the trial court’s finding to the contrary was against the weight of
the evidence.
{¶ 61} Defendant offered the testimony of a clinical psychologist (Dr. Marc
Robert Pagano) and three psychiatrists (Drs. J. Alexander Bodkin, Paul Jay
Markovitz, and Emil F. Coccaro). None of the defense experts was qualified in the
field of forensics. The rebuttal expert called by the state was a forensic psychiatrist
(Dr. Phillip Resnick).
{¶ 62} Dr. Pagano examined defendant and diagnosed him as suffering
from intermittent explosive disorder and bipolar disorder at the time the offenses
were committed. Dr. Pagano relied on accounts by defendant, his family, and
defense counsel, and did nothing to verify the accuracy of the information. He
specifically stated that he was not giving an opinion on the question of legal
18
January Term, 1999
insanity.
{¶ 63} Dr. Bodkin also examined defendant and determined that he suffered
from bipolar disorder and intermittent explosive disorder. He opined that
defendant, because of these diseases, did not know the wrongfulness of his conduct
at the time of the murder and attempted murder. Dr. Bodkin also received all of his
information used to evaluate defendant from the defendant himself, the defendant’s
family, and the defense team. He did not believe that defendant was being
untruthful or malingering.
{¶ 64} Dr. Markovitz also diagnosed defendant as having bipolar disorder,
intermittent explosive disorder, and attention deficit disorder. He testified that,
based on defendant’s conduct, if he had been treating defendant in the two weeks
preceding the murder, he would have hospitalized him as suicidal. He further
opined that on the day of the incident with Beiswenger, and on the day of the
murder, defendant did not know right from wrong. He based his analysis on the
facts of the case, his interview with defendant, defendant’s lifelong behavior
patterns, biochemical studies, and overview of his life. He also did nothing to verify
the information provided by the defense.
{¶ 65} Dr. Coccaro did not examine defendant, but examined his medical
and chemical test results. He concluded that defendant suffered from bipolar
disorder and intermittent explosive disorder. His testimony echoed the other
doctors’ testimony concerning defendant’s chemical imbalance. However, Dr.
Cocarro conceded that it was possible for a person with a history of impulsive
aggressive behavior to plan a premeditated, intentional crime that the person knows
is wrong.
{¶ 66} Dr. Resnick was the forensic psychiatrist who testified on behalf of
the prosecution. Dr. Resnick explained that a forensic psychiatrist evaluates people
who are in some form of litigation, either civil or criminal, and the person being
evaluated is in the human sense trying to manage the impression he creates, whether
19
SUPREME COURT OF OHIO
it is to look disabled, more insane, etc. Therefore, the forensic psychiatrist, unlike
the clinical psychiatrist, does not take at face value what the evaluee reports, but
relies more heavily on objective evidence, such as police reports, witnesses’
reports, employer reports, and school reports, and does not assume that everything
being said is truthful.
{¶ 67} In preparing for his testimony, Dr. Resnick spent five and a half
hours with defendant and another two and three-quarter hours with him another
day. Dr. Resnick interviewed defendant’s mother, father, and girlfriend. He
reviewed detailed police reports, witnesses’ reports, police records regarding earlier
charges, and deputies’ accounts of assaults made by defendant. He reviewed a
response to a motion to compel the production of records, the indictment, reports
of Drs. Bodkin, Markovitz, Pagano, and Coccaro, reports of the hospital dietician,
and various other medical reports.
{¶ 68} Dr. Resnick diagnosed defendant as having antisocial personality
disorder, alcohol abuse, and attention deficit/hyperactivity disorder of childhood.
He further stated that defendant did not suffer from any mental diseases on the day
of the killing that would meet the Ohio legal test (for insanity) and that defendant
knew the wrongfulness of his conduct. His opinion was that defendant committed
the crimes out of vengeance. Defendant expected to go to prison, he expected to
lose his job, and the court had already told him that he was not allowed to see his
children. Dr. Resnick stated that while defendant was contemplating suicide, he
decided, in Dr. Resnick’s opinion, to kill Ms. Filiaggi.
{¶ 69} “The weight to be given the evidence and the credibility of the
witnesses concerning the establishment of the defense of insanity in a criminal
proceeding are primarily for the trier of the facts.” State v. Thomas (1982), 70 Ohio
St.2d 79,24 O.O.3d 150
,434 N.E.2d 1356
, syllabus. The trial panel clearly
expressed what its responsibilities were regarding the findings it needed to make.
The court found that “the defendant has failed to prove by a preponderance of
20
January Term, 1999
evidence his claim of insanity at the time of the acts involved. This Court
specifically finds that the defendant knew of the wrongfulness of his acts in this
case.”
{¶ 70} Even if the defense experts’ diagnoses are taken as true, Dr.
Resnick’s testimony (as well as that of lay witnesses) concerning the defendant’s
state of mind at the time of the crime, as well as steps defendant took to evade
capture by the police, indicates that defendant knew the wrongfulness of his
conduct.
{¶ 71} Dr. Resnick testified that there was no evidence that defendant was
confused at the time of the killing. He parked around the corner from his ex-wife’s
house to keep from being seen. He went to the back door because he knew there
was a light by the front door. He pursued Ms. Filiaggi into the home of a neighbor,
Mutnansky. When in Mutnansky’s home, defendant told Mutnansky to stay in the
other bedroom and close the door. Dr. Resnick noted that this showed that
defendant did not want anyone to witness the killing. This was also evidence that
defendant’s actions were not an uncontrolled rage, but a plan aimed at Ms. Filiaggi.
{¶ 72} Dr. Resnick indicated that information contributed by the family
could be used to help the clinical experts to determine whether defendant was
suffering from a severe mental disease, but the issue of whether defendant knew
the wrongfulness of his act would depend in part on his answers regarding his
conduct and other objective police data. From the police reports, Dr. Resnick
obtained additional information not available to the other experts, indicating the
charges against defendant, his checking into a hotel under a false name, and his
changing license plates, etc. This evidence demonstrates that defendant knew the
wrongfulness of his conduct. In addition, through a telephone call, defendant
learned that the police were tracing his whereabouts by his use of a money machine
card, so he stopped using that card. Dr. Resnick pointed to this as an example of
clear, logical thinking.
21
SUPREME COURT OF OHIO
{¶ 73} Defendant reported no delusions, hallucinations, or false beliefs that
caused him to think that killing Ms. Filiaggi was the right thing to do. In fact, Dr.
Resnick testified that defendant volunteered to him the statement, “I know right
from wrong.” Defendant expressed no remorse and Dr. Resnick opined that
defendant had revenge for a motive, and not a psychotic motive.
{¶ 74} All the defense experts conceded that a person with the mental
conditions that they identified in defendant could commit a premeditated murder
with the knowledge that it was wrong. We conclude that the evidence clearly
showed that defendant did not suffer from any mental diseases that would qualify
for the insanity defense under Ohio law and that the defendant knew the
wrongfulness of his conduct. Accordingly, we overrule defendant’s seventh
proposition of law.
Trial Panel’s Opinion
{¶ 75} When a sentence of death is imposed, R.C. 2929.03(F) requires that
the court or the three-judge panel issue a separate opinion weighing the mitigating
factors and aggravating circumstances in the case, and stating why the aggravating
circumstances were sufficient to outweigh the mitigating factors. In his eighth
proposition of law, defendant makes generalized complaints concerning the panel’s
opinion. But none of defendant’s complaints has merit.
{¶ 76} First, defendant argues that the panel, although making a “generic
statement” that the death penalty specifications charged in the indictment were
proven beyond a reasonable doubt, made the more specific finding that they were
supported by “substantial, credible evidence.” In the trial phase of the case, the
panel found defendant guilty of the three aggravating circumstances beyond a
reasonable doubt. The panel’s opinion specifically states: “The panel finds that
the Defendant was found guilty beyond a reasonable doubt of committing the
following aggravating circumstances: * * *.” (Emphasis added.) The panel then
lists each circumstance and sets forth that there was “substantial and credible
22
January Term, 1999
evidence” presented to prove each one. Defendant argues that this constitutes error
because substantial, credible evidence is not equivalent to proof beyond a
reasonable doubt. We do not agree that the panel’s use of the term “substantial,
credible evidence” undermines its specific finding that appellant was guilty beyond
a reasonable doubt.2
{¶ 77} Second, defendant argues that the panel failed to indicate with
sufficient specificity how it determined the weight to be given each mitigating
factor and how it balanced those factors against the aggravating circumstances.
Pursuant to R.C. 2929.03(F), the trial court was required to state its specific findings
as to the existence of any of the statutory mitigating factors as well as any other
mitigating factors. This is exactly what the panel did. The panel examined the
statutory factors listed in R.C. 2929.04(B), and defendant’s history, character, and
background. The panel assigned weight to the factors it found present in
defendant’s case.
{¶ 78} Defendant’s complaint is that the panel did not explain how it
determined the weight given to the factors considered. However, there is no
requirement that the panel explain how it decides how much weight to give to any
one factor. The weight, if any, given to a mitigating factor is a matter for the
discretion of the individual decisionmaker. State v. Fox (1994), 69 Ohio St.3d 183,
193-194,631 N.E.2d 124, 132
; State v. Mills (1992),62 Ohio St.3d 357, 376
,582 N.E.2d 972, 988
.
{¶ 79} Finally, defendant argues that the panel incorrectly treated its
conclusion that the offense was planned and calculated as a nonstatutory
2. The trial court erred in not merging two of the aggravating circumstances (R.C. 2929.04[A][3]
and [A][8]); however, the court of appeals merged them in conducting its independent review.
23
SUPREME COURT OF OHIO
aggravating circumstance. Defendant reaches this conclusion by citing the portion
of the opinion in which the panel sets forth the reasons why the aggravating
circumstances outweigh the mitigating factors: “The evidence showed that the
Defendant’s actions were planned and calculated.” The panel’s conclusion came
at the end of a lengthy recitation of the facts of the case. Indeed, the evidence did
show that defendant’s actions were planned and calculated. But, given the context
of the sentence in the whole of the opinion, nothing leads us to believe that the
panel weighed this as an additional aggravating circumstance.
{¶ 80} In Fox, 69 Ohio St.3d at 192,631 N.E.2d at 131
, this court
specifically admonished trial courts to “carefully comply with every specific
statutory requirement of R.C. 2929.03(F).” Here, the panel did. Based on all the
foregoing, we overrule this proposition of law.
Scope of Proportionality Review
{¶ 81} In his ninth, tenth, and eleventh propositions, defendant asks the
court to revisit State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273,509 N.E.2d 383
, paragraph one of the syllabus, concerning the universe of cases to be considered by an appellate court when conducting the proportionality review required by R.C. 2929.05(A). Defendant presents no new arguments concerning this issue and, therefore, based upon Steffen, these propositions are overruled. State v. Poindexter (1988),36 Ohio St.3d 1
,520 N.E.2d 568
, syllabus.
Constitutionality of the Death Penalty
{¶ 82} Defendant argues that Ohio’s capital sentencing scheme violates
various provisions of the United States and Ohio Constitutions. This court has
examined and disposed of these same issues in numerous cases. See State v.
Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311,473 N.E.2d 264
; State v. Sowell (1988),39 Ohio St.3d 322, 336
,530 N.E.2d 1294, 1309
; State v.Steffen, supra;
State v. Grant (1993),67 Ohio St.3d 465, 483
,620 N.E.2d 50, 69
; State v. Maurer (1984),15 Ohio St.3d 239
, 15 OBR 379,473 N.E.2d 768
, paragraph six of the
24
January Term, 1999
syllabus; State v. Lewis (1993), 67 Ohio St.3d 200, 206,616 N.E.2d 921, 926
; State v. Buell (1986),22 Ohio St.3d 124
, 22 OBR 203,489 N.E.2d 795
; State v. Phillips (1995),74 Ohio St.3d 72
,656 N.E.2d 643
; State v. Coleman (1989),45 Ohio St.3d 298, 308
,544 N.E.2d 622, 633
; State v.Smith, supra.
Thus, we overrule
defendant’s twelfth proposition of law.
INDEPENDENT SENTENCE REVIEW
{¶ 83} Defendant was convicted of aggravated murder committed with
prior calculation and design. He was also convicted of three separate aggravating
circumstances: (1) that the offense was committed for the purpose of escaping
detection, apprehension, trial, or punishment for another offense committed by
defendant (R.C. 2929.04[A][3]); (2) that the offense was part of a course of conduct
involving the purposeful killing of or attempt to kill two or more persons by
defendant (R.C. 2929.04[A][5]); and (3) that the victim of the offense was a witness
to prior offenses by defendant and was purposely killed to prevent her testimony in
a criminal proceeding concerning those prior offenses (R.C. 2929.04[A][8]). The
court of appeals merged the R.C. 2929.04(A)(3) and (A)(8) factors, leaving the
2929.04(A)(5) and (A)(8) factors.
{¶ 84} This court, as part of the independent review mandated by R.C.
2929.05(A), must determine whether the evidence supports the trial court’s findings
of the aggravating circumstances of which the defendant was found guilty. We find
that the state clearly met its burden on both aggravating circumstances.
{¶ 85} Both the state and federal Constitutions prohibit conviction of any
person except upon proof of guilt beyond a reasonable doubt. In examining claims
based upon insufficient evidence, a reviewing court will ask whether after viewing
the probative evidence and inferences reasonably drawn therefrom in the light most
favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt. State v. Jenks (1991),
61 Ohio St.3d 259,574 N.E.2d 492
; State v. Eley (1978),56 Ohio St.2d 169
, 10
25
SUPREME COURT OF OHIO
O.O.3d 340, 383 N.E.2d 132. The test is whether there is “substantial evidence
upon which a [fact-finder] could reasonably conclude that all the elements of an
offense have been proven beyond a reasonable doubt.” Eley at syllabus.
{¶ 86} R.C. 2929.04(A)(8) specifically provides that the “victim of the
aggravated murder was a witness to an offense who was purposely killed to prevent
the victim’s testimony in any criminal proceeding * * * [or] was purposely killed
in retaliation for the victim’s testimony in any criminal proceeding.” (Emphasis
added.)
{¶ 87} While there had been ongoing hostility between defendant and Ms.
Filiaggi, defendant did not kill Ms. Filiaggi until she and her fiancé, Eric
Beiswenger, filed charges against defendant. Defendant assaulted both of them on
December 19, 1993, and Ms. Filiaggi and Beiswenger had audio-recorded the
assault. Ms. Filiaggi brought a complaint for domestic violence and Beiswenger
brought a complaint for felonious assault. Ms. Filiaggi had witnessed the felonious
assault against her fiancé and the domestic violence against her by defendant. A
grand jury indicted defendant for both crimes on December 28, 1993. Further, Ms.
Filiaggi and Beiswenger brought a complaint against defendant for attempted
vandalism, criminal trespassing, and intimidation after an incident on January 20,
1994, when defendant threw a bottle at their living room window. Ms. Filiaggi had
also videotaped the defendant throwing the bottle at her house. Similarly, the state
could have called Ms. Filiaggi as a witness at defendant’s trial on these charges.
Two days after the bottle-throwing incident, defendant purchased a semiautomatic
pistol. Two days after that, defendant murdered Ms. Filiaggi on January 24, 1994.
{¶ 88} Defense counsel attempted to portray defendant as suicidal, claiming
that he did not intend to kill Ms. Filiaggi, but only to take his own life in front of
her. We find that defendant’s actions belie that theory. On January 24, 1994,
defendant took out a $1,000 cash advance on his Visa card. Defendant left $600 or
$700 with his girlfriend, Tracey Jones. The record does not show what the
26
January Term, 1999
defendant did with the balance of the cash advance. After he murdered his ex-wife,
defendant attempted to kill his ex-father-in-law and then fled. Defendant took
another $1,000 cash advance on his Visa, switched license plates with a stolen car,
rented a car at an airport, and registered at a hotel under a false name. We conclude
that this evidenced defendant’s plan to flee the jurisdiction after murdering the key
witness, Ms. Filiaggi.
{¶ 89} We find that the state presented sufficient evidence to prove that the
filing of these complaints was one of the reasons that defendant killed Ms. Filiaggi.
The law does not require it to be the sole reason. Despite the long history of
hostilities, there was never any physical attempt on Ms. Filiaggi’s life until after
she brought the charges. In addition, defendant stated twice to Ms. Filiaggi at the
time of the shootings that “[t]his will teach you * * * to fuck with me.” This
evidence, along with the closeness in time to the filing of the complaints, creates a
strong inference that supports the state’s theory of an attempt to avoid criminal
responsibility by killing a witness. In addition, the evidence also supports the
theory that defendant killed Ms. Filiaggi in retaliation for her testimony in a
criminal proceeding, i.e., the bringing of the complaint. Before he murdered Ms.
Filiaggi, he told her twice, “This will teach you * * * to fuck with me.”
Consequently, we find that the state proved this aggravating circumstance beyond
a reasonable doubt.
{¶ 90} We now examine the evidence supporting the aggravating
circumstance that Ms. Filiaggi’s murder was part of a course of conduct. The
evidence clearly shows that defendant purposely killed Ms. Filiaggi and then
proceeded to the home of Ms. Filiaggi’s parents. Ms. Filiaggi’s stepfather, Delbert
Yepko, answered the door. Defendant asked him if he was ready to die, said, “I’m
going to kill you,” and then aimed the gun at him. Had Yepko not used the pepper
spray against defendant, Yepko would most likely have also been killed. This
aggravating circumstance is also supported by sufficient evidence to make
27
SUPREME COURT OF OHIO
defendant death-eligible.
{¶ 91} Nothing in the nature and circumstances of the offense is mitigating.
Defendant was angry at Ms. Filiaggi for the trouble she was allegedly causing him.
He perceived that she was antagonizing him, using his children to punish him, and
always trying to get more money out of him. Moreover, Ms. Filiaggi had just
pressed charges against defendant twice and would likely have been a witness at
his trials on these charges. However, Ms. Filiaggi did nothing to provoke defendant
at the time of the murder.
{¶ 92} Some mitigating factors are present in defendant’s history, character,
and background under R.C. 2929.04(B)(7). His mother and sister testified that
when his sister was ill as a child, defendant stayed by her side and helped to take
care of her. Defendant spent four years in the Army and achieved the rank of
sergeant. He saved money while in the Army, went to college on the GI Bill, and
graduated cum laude. Defendant married Ms. Filiaggi while still in college, and
after the children were born, he was described as a loving father to them.
Throughout college, defendant supported his family. Defendant maintained fairly
steady employment and paid his child support at the time the crime occurred. These
factors are entitled to some weight. See, generally, State v. Reynolds (1998), 80
Ohio St.3d 670, 686-687,687 N.E.2d 1358, 1374
; State v. Getsy (1998),84 Ohio St.3d 180, 207
,702 N.E.2d 866, 891
; State v. Mitts (1998),81 Ohio St.3d 223, 236
,690 N.E.2d 522, 533
.
{¶ 93} We must now determine under R.C. 2929.04(B)(3), whether at the
time of committing the offense, defendant, because 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. The defense experts during
the trial phase claimed that defendant suffered from bipolar disorder and
intermittent explosive disorder. This diagnosis was based on testimony of family
members who related incidents in defendant’s past concerning his allegedly
28
January Term, 1999
uncontrollable temper and his propensity for violence. From the age of five,
defendant would act aggressively with very little provocation. When defendant
was in the second grade, he hit his teacher. He then began counseling, which
continued for a three-year period, with very little improvement. The court heard
about other incidents concerning altercations he was involved in throughout the
course of his life.
{¶ 94} Defendant’s parents testified that he would always express remorse
and take responsibility for these rages after they had occurred, but he did not seem
able to control himself at the time. His brother indicated that defendant would not
incite fights, but it would not take much to get him fighting.
{¶ 95} While the defense witnesses portrayed the defendant’s anger
problems as uncontrollable, Dr. Phillip Resnick testified that defendant has the
ability to control his aggression if it benefits him, or use violence to achieve a
purpose. Dr. Resnick explained that defendant engaged in two types of aggression:
impulsive aggression and controlled aggression. The impulsive aggression was
evidenced by defendant going into a rage and losing control. However, there were
numerous examples of defendant’s ability to control his aggression. For example,
defendant’s mother relayed to Dr. Resnick that when defendant was a child, if he
wanted the remote control for the TV and one of his sisters would not give it to
him, he would punch her and take it. Dr. Resnick explained that this behavior is
not rage, but using aggression to accomplish a purpose. Another example of
defendant’s ability to control his aggression is his history in the military. Dr.
Resnick indicated that the defendant told him that because of the consequences, he
would walk away from many fights because the military is a more controlled
society with regard to consequences. Dr. Resnick testified that defendant behaved
similarly while on the job, i.e., did not get into fights, because he knew that there
would be serious consequences. Therefore, when defendant was more likely to “get
away with it,” he was more likely to act on impulse. However, if he was fearful of
29
SUPREME COURT OF OHIO
facing the consequences, he was able to control his temper.
{¶ 96} As mentioned previously, four experts testified for the defense
regarding defendant’s mental condition at the time of the crimes. Dr. Pagano
diagnosed defendant with bipolar disorder and intermittent explosive disorder.
First, Dr. Pagano testified that in the manic phase of bipolar disorder, defendant
would be more impulsive and more easily provoked. Again, as mentioned above,
Dr. Pagano also testified that he did not read any police reports, and that he relied
on the accounts by the defendant, his family, and defense counsel. In addition, he
did nothing to verify the accuracy of this information.
{¶ 97} Second, Dr. Bodkin also testified that he believed that defendant
suffered from bipolar disorder and intermittent explosive disorder. In addition, Dr.
Bodkin believed that defendant suffered from attention deficit disorder. Again, Dr.
Bodkin received all of his information used to evaluate defendant from the
defendant himself, the defendant’s family, and the defense team.
{¶ 98} Third, Dr. Markovitz testified that at the time of the offenses,
defendant suffered from bipolar disorder, attention deficit disorder, and intermittent
explosive disorder. Dr. Markovitz testified that he did not believe that defendant
was aware of or had the ability to reflect on what he was doing at the time he
murdered Ms. Filiaggi.
{¶ 99} Finally, Dr. Coccaro also concluded that defendant suffered from
intermittent explosive disorder and bipolar disorder. Again, as noted above, Dr.
Coccaro testified that he also had done nothing to independently verify the
information he reviewed. Instead, he relied on the reports of Drs. Markovitz and
Bodkin. Significantly, Dr. Coccaro conceded that it was possible for a person with
a history of impulsive aggressive behavior to plan a premeditated, intentional crime
that the person knows is wrong.
{¶ 100} Dr. Resnick, the only forensic psychiatrist to testify at the trial,
testified on behalf of the prosecution. Based on his interviews, reviews of police
30
January Term, 1999
records, witness reports, deputy accounts, and other documents mentioned above,
Dr. Resnick made three diagnoses: antisocial personality disorder, alcohol abuse,
and attention deficit/hyperactivity disorder of childhood.
{¶ 101} Dr. Resnick disagreed with the conclusion that defendant suffered
from intermittent explosive disorder. Instead, Dr. Resnick believed that defendant
suffered from antisocial personality disorder. Dr. Resnick explained that there is a
specific statement under the criteria for intermittent explosive disorder in the DSM
IV manual that says that if the violence can be explained by another disease, such
as antisocial personality, then the diagnosis of intermittent explosive disorder may
not be made. “It’s [intermittent explosive disorder] a weaker diagnosis. It’s only
if someone does not have others, or antisocial personality.”
{¶ 102} Dr. Resnick explained to the court that with intermittent explosive
disorder, the outbursts are out of proportion to the stimulation. Continual physical
fights are much more characteristic of antisocial personality disorder, and not
characteristic of intermittent explosive disorder. Because defendant had numerous
examples of controlled aggression, he met the category of antisocial personality
disorder, rather than intermittent explosive disorder.
{¶ 103} Dr. Resnick arrived at his diagnosis of antisocial personality
disorder by evaluating defendant against the criteria in the DSM IV. Dr. Resnick
testified that the evidence went beyond that recommended by the manual necessary
to make the diagnosis. For example, Dr. Resnick related specific evidence of
defendant’s antisocial personality. This included defendant’s conduct disorder as
a child, which was evidenced by his “initiation of physical fights, being physically
cruel to people, vandalism, shoplifting, running away from home, truancy, bullying,
use of a weapon (knife), and deliberate destruction of property.” Further evidence
of antisocial personality included defendant’s adult unlawful behavior, impulsivity,
aggressiveness, indicated by his approximately one hundred physical fights,
reckless driving, and lack of remorse, as indicated by rationalizing his behavior and
31
SUPREME COURT OF OHIO
by his mother saying that he had no remorse after getting into physical fights.
{¶ 104} In addition, Dr. Resnick testified that the defendant’s mother told
him that several times she heard defendant on the phone with his ex-wife, Ms.
Filiaggi, and, one time, after concluding the call, he said, “I’m going to kill her one
of these days.” Dr. Resnick noted the vengeance of defendant when he said to Ms.
Filiaggi before he shot her, “This will teach you * * * to fuck with me.” Dr. Resnick
stated that it was his belief that this showed that defendant had a rational motive
rather than a psychotic motive.
{¶ 105} Dr. Resnick noted that defendant had admitted to Dr. Pagano that
while he was feeling suicidal before the act, he thought about taking out others with
whom he had grievances and “had done him wrong.” That included judges, in an
earlier case, and police officers with whom he had trouble in the past. Dr. Resnick
noted that on the day of the murder, although defendant had one gun available to
him, before leaving for Ms. Filiaggi’s home he insisted on taking a second gun with
him. Dr. Resnick opined that this did not mesh with the suicide theory.
{¶ 106} Dr. Resnick testified that there was no evidence that defendant was
confused or suffering from delusions or hallucinations that suggested to him that
killing Ms. Filiaggi was the right thing to do. At the time of the killing, his activities
were goal-directed and effective. He parked his car not in front of Ms. Filiaggi’s
house, but around the corner to keep from being seen. He went to the back door
because there was a light by the front door. He chased Ms. Filiaggi into the
neighbor’s house, suggesting that he was pursuing her, which is goal-directed rather
than impulsive behavior. As mentioned above, defendant told the neighbor to stay
in the other bedroom and close the door. Again, this demonstrates defendant’s
ability to control the situation and to control anger.
{¶ 107} Dr. Resnick noted that when defendant drove to his father-in-law’s
home after shooting Ms. Filiaggi, it showed premeditation, rather than impulsivity,
because he actually drove a distance for that purpose. Further, his steps taken after
32
January Term, 1999
the murders also suggested that defendant knew he was committing illegal and
wrongful acts. Dr. Resnick pointed to the acts of avoiding police, switching license
plates with stolen ones, renting a car at an airport, registering in a hotel under a
false name, and keeping his calls to his parents’ home short because he believed
their phone was tapped.
{¶ 108} Dr. Resnick found the defendant to be an above average, intelligent
man. He testified that defendant had already spent time in jail for past crimes, knew
he was violating a restraining order, lied to obtain a 9 mm gun, and volunteered to
Dr. Resnick that he knew right from wrong.
{¶ 109} Defense counsel pressed Dr. Resnick again about the antisocial
personality disorder issue. Defense counsel noted that defendant had set and met
goals such as graduating from college with honors, marrying, and supporting his
family. Defense counsel challenged that these behavior traits are inconsistent with
a sociopathic personality. Dr. Resnick disagreed and noted that the fact that a
person succeeds does not imply that he or she is not sociopathic. Dr. Resnick
continued to disagree with the prior diagnoses of bipolar disorder and intermittent
explosive disorder. Dr. Resnick completely disagreed with the defense proposition
that if a person suffers from intermittent explosive disorder and bipolar disorder, he
or she may not know right from wrong. In fact, Dr. Resnick interviewed defendant,
and then after reviewing the medical reports of the defense experts, he went back
and systematically asked specific, detailed questions of defendant, his parents, and
his girlfriend regarding issues like bipolar disorder, depression, attention deficit
disorder, and explored the criteria for those conditions. Dr. Resnick also testified
that the diagnostic criteria for attention deficit disorder do not include aggressive
violence.
{¶ 110} There was testimony by the defense experts that defendant had a
chemical imbalance in his brain. Specifically, some of the defense experts testified
that defendant possessed low seratonin levels. Seratonin is a neurotransmitter in
33
SUPREME COURT OF OHIO
the brain that functions as a behavioral inhibitor. One defense expert testified that
if seratonin is low and people have impulsive aggressive problems, it would stand
to reason, that if you enhance their seratonin activity, it should make them less
impulsive and aggressive. However, Dr. Resnick testified that whether it was
impulsive or premeditated, defendant could still know the wrongfulness of his
conduct, whatever the diagnosis (bipolar, intermittent explosive, or antisocial
personality disorder). In fact, as the court of appeals noted, all of the defense
experts conceded that a person with the mental conditions that they identified in
defendant could commit a premeditated murder with the knowledge that it was
wrong.
{¶ 111} Under R.C. 2929.04(B)(3), defendant was required to prove that “at
the time of committing the offense, the offender, because 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.”
{¶ 112} All of the defense experts conceded, as the court of appeals noted,
that a person with the mental conditions that they identified in defendant could
commit a premeditated murder with the knowledge that it was wrong. In addition,
we agree with the court of appeals that the claims that defendant had successfully
completed college, served in the military, maintained employment, and cared for
his children contradict the claim that he had a mental disease or defect so severe
that it rendered him unable to control himself or unable to conform his conduct to
the law. Accordingly, we give this factor slight weight under R.C. 2929.04(B)(3).
{¶ 113} Considering the mitigating factors set forth above, we find that the
aggravating circumstances outweigh, beyond a reasonable doubt, the factors in
mitigation of the death sentence.
{¶ 114} As a part of the appropriateness determination, we must compare
this case to other cases reviewed by this court containing the course-of-conduct
specification to determine if the death sentence in this case is disproportionate.
34
January Term, 1999
{¶ 115} In State v. Allard (1996), 75 Ohio St.3d 482, 501-502,663 N.E.2d 1277, 1293-1294
, the defendant was convicted of killing his ex-wife and one of his
children. Allard presented evidence that he was raised in foster homes and was
sexually abused as a child. Allard was remorseful and there was evidence he would
adapt well in prison. Like defendant, he also presented evidence that he suffered
from bipolar disorder. The court affirmed the death sentence.
{¶ 116} In State v. Awkal (1996), 76 Ohio St.3d 324, 338-339,667 N.E.2d 960, 972-973
, the defendant killed his wife and brother-in-law. There was
mitigating evidence that Awkal was raised in a poor background and did not finish
school. Awkal’s father was physically abusive. Awkal was gainfully employed,
had no prior criminal history, and expressed remorse for the killing. Further, Awkal
was suffering from psychological disorders. The court affirmed the death sentence.
{¶ 117} In State v. Sowell, 39 Ohio St.3d at 336-337,530 N.E.2d at 1309
-
1310, the defendant killed one person and attempted to kill a second. Sowell
presented mitigating evidence that the killing was the result of provocation and that
he was intoxicated when it occurred. The court affirmed the death sentence.
{¶ 118} State v. Claytor (1991), 61 Ohio St.3d 234, 245-246,574 N.E.2d 472, 481-482
, involved the killing of two hospital guards. Claytor had no criminal
convictions. The compelling factor in that case was the existence of the R.C.
2929.04(B)(3) factor, that Claytor, because of a mental disease or defect, lacked the
substantial capacity to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law. The court reversed Claytor’s death
sentence.
{¶ 119} This case is more similar in facts to Allard, Awkal, and Sowell. The
mental disorders present in this case are not the severe mental defects found in
Claytor. As such, we find that the death sentence in this case is not disproportionate
when compared to similar cases.
{¶ 120} For the reasons stated herein, we affirm defendant’s conviction for
35
SUPREME COURT OF OHIO
aggravated murder and his sentence of death. We also affirm his convictions and
sentences for felonious assault and domestic violence in Lorain Common Pleas case
No. 93CR044726. However, we reverse the judgment of the trial court in case No.
94CR044866 and the verdicts and/or the sentences imposed for attempted
aggravated murder, aggravated burglary, and kidnapping, and remand the cause to
the three-judge panel for final resolution consistent with our opinion, supra, in
defendant’s fourth proposition of law.
Judgment affirmed in part,
reversed in part
and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, J., concurs in judgment only.
COOK, J., concurs in part and dissents in part.
__________________
COOK, J., concurring in part and dissenting in part.
{¶ 121} I concur with the majority opinion, except I would find that any
error resulting from a single judge deciding the noncapital offenses in this case was
waived by the defendant’s failure to object.
{¶ 122} The defendant in a noncapital criminal case where a jury is waived
is tried and his guilt determined by a single judge. R.C. 2945.06, in reference to
capital offenses, provides that where a jury is waived, the case should be tried and
determined by a panel of three judges. The statute may allow the three-judge panel
to determine noncapital offenses along with capital offenses, but does not require
it.
{¶ 123} The majority finds, without explanation, that the three-judge panel
cannot be waived as to noncapital offenses. I have found no reason why the failure
to object should not waive this issue. In fact, our decision in Swiger v. Seidner
(1996), 74 Ohio St.3d 685, 686,660 N.E.2d 1214, 1216
(where defendant waived
36
January Term, 1999
three-judge panel and a single judge determined both capital and noncapital
offenses, single judge had jurisdiction to determine noncapital offense) supports the
waiver argument.
{¶ 124} Accordingly, I would affirm the judgment of the court of appeals
on this issue.
__________________
APPENDIX
{¶ 125} “Proposition of Law One[:] It is prejudicial error for a trial court
to find a defendant competent to stand trial where the evidence shows that
additional evaluations may have shown otherwise.
{¶ 126} “Proposition of Law Two[:] It is an abuse of discretion for a trial
court to fail to grant a new trial when that court failed to make a meaningful
determination regarding defendant’s competence to stand trial.
{¶ 127} “Proposition of Law Three[:] A defendant’s decision to waive a
jury and be tried by a three judge panel is not voluntary, knowing and intelligent
when the court does not engage in any meaningful colloquy with him regarding the
meaning of a jury trial.
{¶ 128} “Proposition of Law Four[:] It is a violation of a defendant’s due
process rights when a trial court fails to have the entire three judge panel decide all
the charges contained in the indictment.
{¶ 129} “Proposition of Law Five[:] It is a violation of a defendant’s due
process rights when the trial court fails to specifically inquire whether defendant
knowingly and intelligently waived his right to testify at trial.
{¶ 130} “Proposition of Law Six[:] It is an abuse of discretion and highly
prejudicial to a defendant when a trial court refuses to permit a defendant to enter
the reports of his experts into evidence.
{¶ 131} “Proposition of Law Seven[:] It is an abuse of discretion for the
trial court to refuse to find a defendant not guilty by reason of insanity when the
37
SUPREME COURT OF OHIO
experts deem otherwise.
{¶ 132} “Proposition of Law Eight[:] When the R.C. 2929.03(F) opinion
of the three judge panel is defective a new trial must be ordered.
{¶ 133} “Proposition of Law Nine[:] It is error for a trial court to impose
a death sentence when the death penalty law as currently applied in Ohio violates
R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in
conducting their R.C. 2929.04(A) review of ‘similar cases’ for proportionality, to
examine only those cases in which a death sentence was imposed and ignore those
in which a sentence of life with parole eligibility after twenty full years or life with
a parole eligibility after thirty full years was imposed. The current method also
violates the rights to a fair trial and due process, results in cruel and unusual
punishment, and implicates others of appellant’s protected rights as well, all as set
forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United
States Constitution and in Sections 1, 2, 5, 9, 10, 16 and 20, Article I of the Ohio
Constitution.
{¶ 134} “Proposition of Law Ten[:] It is prejudicial error to sentence
defendant to the death penalty, when, based upon the law and the record of this
case, the sentence of death herein is inappropriate and is disproportionate to the
penalty imposed in similar cases, in violation of defendant’s rights as guaranteed to
him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and
Sections 5, 9, 10 and 16 of Article One of the Ohio Constitution.
{¶ 135} “Proposition of Law Eleven[:] The proportionality review that
this court must conduct in the present capital case pursuant to Ohio Revised Code
Section 2929.05 is fatally flawed and therefore the present death sentence must be
vacated pursuant to the Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio
Revised Code 2929.05, in violation of defendant’s rights as guaranteed to him by
the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and
38
January Term, 1999
Sections 5, 9, 10 and 16 of Article One of the Ohio Constitution.
{¶ 136} “Proposition of Law Twelve[:] R.C. 2903.01, 2929.02, 2929.021,
2929.022, 2929.023, 2929.03, 2929.04 and 2929.05 as read together and as applied
in this case violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and Sections 2, 9, 10, and 16 of Article I of the Ohio
Constitution.”
39
Reference
- Cited By
- 13 cases
- Status
- Published
- Syllabus
- Criminal law—Aggravated murder—Death penalty upheld, when—Verdicts on noncapital offenses reversed and cause remanded to three-judge trial panel when only presiding judge entered the verdicts.