State v. Hill

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The State of Ohio, Appellee, v. Hill, Appellant.

[Cite as State v. Hill (1992), Ohio St.3d .]

Criminal law -- Aggravated murder -- Death penalty upheld, when.

(No. 90-177 -- Submitted April 8, 1992 -- Decided August

12, 1992.)

Appeal from the Court of Appeals for Trumbull County, Nos.

3720 and 3745.

On September 10, 1985, at approximately 5:15 p.m.,

twelve-year-old Raymond Fife left home on his bicycle to visit

a friend, Billy Simmons. According to Billy, Raymond would

usually get to Billy's residence by cutting through the wooded

field with bicycle paths located behind the Valu-King store on

Palmyra Road in Warren.

Matthew Hunter, a Warren Western Reserve High School

student, testified that he went to the Valu-King on the date in

question with his brother and sister shortly after 5:00 p.m.

Upon reaching the front of the Valu-King, Hunter saw Tim Combs

and defendant-appellant, Danny Lee Hill, walking in the parking

lot towards the store. After purchasing some items in the

Valu-King, Hunter observed defendant and Combs standing in

front of a nearby laundromat. Combs greeted Hunter as he

walked by. Hunter also saw Raymond Fife at that time riding

his bike into the Valu-King parking lot.

Darren Ball, another student at the high school, testified

that he and Troy Cree left football practice at approximately

5:15 p.m. on September 10, and walked down Willow Street to a

trail in the field located behind the Valu-King. Ball

testified that he and Cree saw Combs on the trail walking in

the opposite direction from the Valu-King. Upon reaching the

edge of the trail close to the Valu-King, Ball heard a child's

scream, "like somebody needed help or something."

Yet another student from the high school, Donald E.

Allgood, testified that he and a friend were walking in the

vicinity of the wooded field behind the Valu-King between 5:30

p.m. and 6:00 p.m. on the date in question. Allgood noticed

defendant, Combs and two other persons "walking out of the

field coming from Valu-King," and saw defendant throw a stick

back into the woods. Allgood also observed Combs pull up the

zipper of his blue jeans. Combs "put his head down" when he

saw Allgood.

At approximately 5:50 p.m. on the date in question,

Simmons called the Fife residence to find out where Raymond

was. Simmons then rode his bicycle to the Fifes' house around

6:10 p.m. When it was apparent that Raymond Fife's whereabouts

were unknown, Simmons continued on to a Boy Scouts meeting,

while members of the Fife family began searching for Raymond.

At approximately 9:30 p.m., Mr. Fife found his son in the

wooded field behind the Valu-King. Raymond was naked and

appeared to have been severely beaten and burnt in the face.

One of the medics on the scene testified that Raymond's groin

was swollen and bruised, and that it appeared that his rectum

had been torn. Raymond's underwear was found tied around his

neck and appeared to have been lit on fire.

Raymond died in the hospital two days later. The coroner

ruled Raymond's death a homicide. The cause of death was found

to be cardiorespiratory arrest secondary to asphyxiation,

subdural hematoma and multiple trauma. The coroner testified

that the victim had been choked and had a hemorrhage in his

brain, which normally occurs after trauma or injury to the

brain. The coroner also testified that the victim sustained

multiple burns, damage to his rectal-bladder area and bite

marks on his penis. The doctor who performed the autopsy

testified that the victim sustained numerous external injuries

and abrasions, and had a ligature mark around his neck. The

doctor also noticed profuse bleeding from the victim's rectal

area, and testified that the victim had been impaled with an

object that had been inserted through the anus, and penetrated

through the rectum into the urinary bladder.

On September 12, 1985, defendant went downtown to the

Warren Police Station to inquire about a $5,000 reward that was

being offered for information concerning the murder of Raymond

Fife. Defendant met with Sergeant Thomas W. Stewart of the

Warren Police Department and told him that he had "just seen

Reecie Lowery riding the boy's bike who was beat up." When

Stewart asked defendant how he knew the bike he saw was the

victim's bike, defendant replied, "I know it is." Defendant

then told Stewart, "If you don't go out and get the bike now,

maybe [Lowery will] put it back in the field." According to

Stewart, the defendant then stated that he had seen Lowery and

Andre McCain coming through the field at around 1:00 that

morning. In the summary of his interview with defendant,

Stewart noted that defendant "knew a lot about the bike and

about the underwear around the [victim's] neck." Also, when

Stewart asked defendant if he knew Tim Combs, defendant

replied, "Yeah, I know Tim Combs. *** I ain't seen him since

he's been out of the joint. He like boys. He could have done

it too."

On September 13, 1985, the day after Stewart's interview

with defendant, Sergeant Dennis Steinbeck of the Warren Police

Department read Stewart's summary of the interview, and then

went to defendant's home and asked him to come to the police

station to make a statement. Defendant voluntarily went to the

police station with Steinbeck, whereupon defendant was advised

of his Miranda rights and signed a waiver-of-rights form.

Defendant made a statement that was transcribed by Steinbeck,

but the sergeant forgot to have defendant sign the statement.

Subsequently, Steinbeck discovered that some eyewitnesses had

seen defendant at the Valu-King on the day of the murder.

On the following Monday, September 16, Steinbeck went to

defendant's house accompanied by defendant's uncle, Detective

Morris Hill of the Warren Police Department. Defendant again

went voluntarily to the police station, as did his mother.

Defendant was given his Miranda rights, which he waived at that

time as well. After further questioning by Sergeants Stewart

and Steinbeck and Detective Hill, defendant indicated that he

wanted to be alone with his uncle, Detective Hill. Several

minutes later, defendant stated to Hill that he was "in the

field behind Valu-King when the young Fife boy got murdered."

Defendant was given and waived his Miranda rights again,

and then made two more voluntary statements, one on audiotape

and the other on videotape. In both statements, defendant

admitted that he was present during the beating and sexual

assault of Raymond Fife, but that Combs did everything to the

victim. Defendant stated that he saw Combs knock the victim

off his bike, hold the victim in some sort of headlock, and

throw him onto the bike several times. Defendant further

stated that he saw Combs rape the victim anally and kick him in

the head. Defendant stated that Combs pulled on the victim's

penis to the point where defendant assumed Combs had pulled it

off. Defendant related that Combs then took something like a

broken broomstick and jammed it into the victim's rectum.

Defendant also stated that Combs choked the victim and burnt

him with lighter fluid. While defendant never admitted any

direct involvement in the murder, he did admit that he stayed

with the victim while Combs left the area of the attack to get

the broomstick and the lighter fluid used to burn the victim.

Upon further investigation by authorites, defendant was

indicted on counts of kidnapping, rape, aggravated arson,

felonious sexual penetration, aggravated robbery and aggravated

murder with specifications.

On December 16, 1985, a pretrial hearing was held on

defendant's motion to suppress statements made to police

officers both orally and on tape. On January 17, 1986, the

court of common pleas concluded as follows:

"It is the opinion of this Court that no Fourth Amendment

violation was shown because [defendant] was at no time 'seized'

by the police department, but rather came in either

voluntarily, or as in the case of September 16th because of his

mother's demands.

"***

"Defendant's Fifth Amendment Rights were clearly protected

by the numerous Miranda Warnings and waivers. Though this

Court believes that the defendant could not have effectively

read the rights or waiver forms, the Court relies on the fact

that at any time he was given a piece of paper to sign

acknowledging receipt of the Miranda Warnings and waiving his

rights, the paper was always read to him before he affixed any

of his signatures.

"Though defendant is retarded, he is not so seriously

impaired as to have been incapable of voluntarily and knowingly

given the statements which the defendant now seeks to

suppress. The Court reaches this conclusion after seeing and

listening to the defendant at the Suppression Hearing and

listening to and watching the tape recording and videotaped

statements of the defendant. The Court concludes that the

statements were made voluntarily, willingly, and knowingly."

Meanwhile, on January 7, 1986, defendant appeared before

the trial court and executed a waiver of his right to a jury

trial.

On January 21, 1986, defendant's trial began in front of a

three-judge panel. Among the voluminous testimony from

witnesses and the numerous exhibits, the following evidence was

adduced:

Defendant's brother, Raymond L. Vaughn, testified that he

saw defendant wash his gray pants on the night of the murder as

well as on the following two days. Vaughn identified the pants

in court, and testified that it looked like defendant was

washing out "something red. *** It looked like blood to me ***."

Detective Sergeant William Carnahan of the Warren Police

Department testified that on September 15, 1985 he went with

eyewitness Donald Allgood to the place where Allgood stated he

had seen defendant and Combs coming out of the wooded field,

and where he had seen defendant toss "something" into the

woods. Carnahan testified that he returned to the area with

workers from the Warren Parks Department, and that he and

Detective James Teeple found a stick about six feet from the

path where Allgood saw defendant and Combs walking.

Dr. Curtis Mertz, a forensic odontologist, stated that:

"It's my professional opinion, with reasonable degree of

medical certainty, that Hill's teeth, as depicted by the models

and the photographs that I had, made the bite on Fife's penis."

The defense called its own forensic odontologist, Dr.

Lowell Levine, who stated that he could not conclude with a

reasonable degree of certainty as to who made the bite marks on

the victim's penis. However, Levine concluded: "What I'm

saying is either Hill or Combs, or both, could have left some

of the marks but the one mark that's consistent with the

particular area most likely was left by Hill."

Doctor Howard Adelman, the pathologist who performed the

autopsy of the victim's body, testified that the size and shape

of the point of the stick found by Detective Carnahan was "very

compatible" with the size and shape of the opening through the

victim's rectum. Adelman described the fit of the stick in the

victim's rectum as "very similar to a key in a lock."

At the close of trial, the trial panel deliberated for

five hours and unanimously found defendant guilty on all

counts, except the aggravated robbery count and the

specification of aggravated robbery to the aggravated murder

count.

Pursuant to R.C. 2929.04(B), a mitigation hearing was held

by the three-judge panel beginning on February 26, 1986. The

panel received testimony, and thereafter weighed the

aggravating circumstances against the mitigating factors. The

panel then sentenced defendant to ten to twenty-five years'

imprisonment for both aggravated arson and kidnapping, life

imprisonment for rape and felonious sexual penetration, and the

death penalty for aggravated murder with specifications.1

Upon appeal, the court of appeals affirmed the panel's

judgment of conviction and sentence.

The cause is now before this court upon an appeal as of

right.

Dennis Watkins, Prosecuting Attorney, and Peter J. Kontos,

for appellee.

Tataru, Wallace & Warner and Roger Warner; Tyack, Wright &

Turner and Carol A. Wright, for appellant.

Sweeney, J. Pursuant to R.C. 2929.05(A), this court is

required to undertake a three-prong analysis in reviewing the

instant death penalty case. First, we will consider the

specific issues raised by defendant with respect to the

proceedings below. We will review all of defendant's

propositions of law, even though some may be deemed to have

been waived since they were not raised below. Second, we will

independently weigh the aggravating circumstances in this case

against all factors which mitigate against the imposition of

the death sentence. Third, we will independently consider

whether defendant's sentence is appropriate disproportionate to

the penalty imposed in similar cases.

In his first proposition of law, defendant contends that

his Sixth and Fourteenth Amendment right to counsel was

violated because he was deprived of counsel during custodial

interrogation. Defendant further contends that he could not

waive his right to counsel and that his statements to the

police were not voluntary since he is mentally retarded.

With respect to waiver, the United States Supreme Court in

Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 93

L.Ed.2d 473, reaffirmed its prior holding in Lego v. Twomey

(1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed. 618, that the

state carries the burden of proving the voluntariness of a

confession by a preponderance of the evidence. However,

Connelly also holds that evidence of police coercion or

overreaching is necessary for a finding of involuntariness, and

not simply evidence of a low mental aptitude of the

interrogee. Id., 479 U.S. at 164, 107 S.Ct. at 520, 93 L.Ed.2d

at 482-483; see State v. Clark (1988), 38 Ohio St.3d 252, 527

N.E.2d 844. See, also, United States v. Young (E.D.Pa. 1973),

355 F.Supp. 103, where the court held that a defendant with an

IQ of 57 could voluntarily waive his Miranda rights due to his

"extensive dealings with the criminal process." Id. at 111.

The record herein indicates that defendant made a

statement to Sergeant Steinbeck after waiving his Miranda

rights, but that Steinbeck apparently forgot to have defendant

sign his transcribed statement. Subsequently, Steinbeck and

Detective Hill went to defendant's home to have him sign the

statement and have his mother make a statement concerning

defendant's whereabouts on the day of the Fife murder.

Defendant and his mother voluntarily went to the police station

with the officers where he was again given his Miranda rights

before and during the time he made some incriminating

statements to the police officers concerning his presence at

the murder.

In our view, defendant's arguments are without merit.

Upon a careful review of the record, we can discern no coercive

or overreaching tactics employed by the police during

questioning. Based on Connelly, supra, this court's ruling in

State v. Jenkins (1984), 15 Ohio St.3d 164, 233, 15 OBR 311,

370-371, 473 N.E.2d 264, 321-322, and his prior dealings with

the criminal process as a juvenile, defendant's mental aptitude

did not undercut the voluntariness of his statements or his

waiver of Miranda rights. Accordingly, we overrule defendant's

first proposition of law.

In his second proposition of law, defendant asserts that

his statements to the Warren police officers were not voluntary

since the statements were the result of psychological tactics

employed by the police on a retarded individual who is

essentially illiterate. Defendant contends that the admission

of such statements violates the Due Process Clauses of both the

United States and Ohio Constitutions.

Defendant's arguments in this respect are based on his

relationship with his uncle, Morris Hill, a detective with the

Warren Police Department. Detective Hill testified that prior

to defendant's reaching the age of eighteen, he would at times

physically discipline defendant at the request of defendant's

mother.

A review of the record indicates that immediately prior to

defendant's first admission that he was present at the murder

of the victim, he was left alone with Detective Hill. Shortly

thereafter, Detective Hill summoned the other interrogating

police officers and stated that defendant was going to tell

what he knew about the murder. Defendant testified at the

suppression hearing that Detective Hill kicked him under the

table in order to make him start talking when the officers

began to tape his statement. Defendant argues that taking into

account the totality of circumstances, it is apparent that the

tape-recorded statement and the videotape statement were

involuntary, especially when one considers the psychological

ploy used by the police on him, a retarded individual, that

another person (Tim Combs) was going to blame him for the

murder.

Upon a careful review of the testimony and the audiotape

and videotape statements, we do not find that the interrogation

tactics used by the police officers, even in light of

defendant's mental capacity, rendered the statements

involuntary, or that the officers improperly induced the

defendant to make incriminating statements. In State v.

Jackson (1977), 50 Ohio St.2d 253, 4 O.O.3d 429, 364 N.E.2d

236, this court upheld a confession that ensued after

detectives told a suspect that others had implicated him in the

commission of a criminal offense.

In our view, the trial court correctly determined that the

statements made by defendant were voluntary. Therefore, we

find defendant's second proposition of law to be without merit.

In his third proposition of law, defendant argues that the

state failed to establish that he was properly given his

Miranda rights, or that he knowingly, voluntarily and

intelligently waived such rights.

Contrary to defendant's arguments, the record amply

supports the fact that defendant was given his Miranda rights

several times, and that during each of these times such rights

were knowingly, voluntarily and intelligently waived by

defendant. See Young, supra. Thus, we find defendant's third

proposition of law to be not well taken.

In his fourth proposition of law, defendant asserts that

his Fourth and Fourteenth Amendment rights were violated when

he was seized from his home through the use of psychological

ploys by the police officers.

Our review of the record, however, indicates that

defendant voluntarily went with the police officers to the

police station at the urging of his mother. Defendant was not

taken into custody at the time the police officers brought him

to the police station; the police had come to his home to try

to get him to go to the police station to sign the prior

statement he had made to Sergeant Steinbeck. The officers also

wanted to get a statement from defendant's mother concerning

defendant's whereabouts on the day of the Fife murder. In

addition, defendant indicates on the audiotape made on

September 16, 1985 that he was not under arrest when he went to

the police station and that he gave his statment voluntarily.

Under these circumstances, we find defendant's fourth

proposition of law to be wholly without merit.

In his fifth proposition of law, defendant contends that

he was denied his right to due process when he was denied his

statutory right to counsel pursuant to R.C. 120.16, 2935.14 and

2935.20.

We cannot, however, find any evidence supporting

defendant's contention that he was denied his right to

counsel. The record indicates that that at no time did

defendant ever request an attorney. While it is true that

defendant's mother, Vera Williams, testified that she asked her

brother, Detective Hill, if she should hire an attorney, and he

told her that it would not be necessary since an appointed

attorney would be assigned to the defendant, there is no

credible evidence in the record that defendant ever invoked his

right to counsel either before or during the times he talked to

the police officers. In addition, defendant was not under

arrest at the time in question and had come voluntarily to the

police station.

As this court noted in State v. Benner (1988), 40 Ohio

St.3d 301, 310, 533 N.E.2d 701, 711-712, in the context of

Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694, a person must affirmatively articulate a request

for counsel in order for the right to attach during

interrogation. See United States v. Pearson (C.A.11, 1984),

746 F.2d 787, 793.

Even assuming, arguendo, that defendant's statements

should have been suppressed, the other evidence in the instant

cause is so overwhelming as to render any error harmless beyond

a reasonable doubt. Accordingly, we reject defendant's fifth

proposition of law.

In his sixth proposition of law, defendant alleges that

the police failed to comply with R.C. 2935.05,2 and that his

arrest was therefore illegal, and any statements derived

therefrom must be suppressed.

The record indicates that defendant was arrested on

September 16, 1985, and that charges were filed the very next

day. In our view, defendant's argument of unnecessary delay is

wholly unpersuasive. Even if we were to find that the alleged

delay was unnecessary and violated the statute, the statutory

violation would not compel suppression of the statements in the

absence of any constitutional infringement. See State v.

Cowans (1967), 10 Ohio St.2d 96, 39 O.O.2d 97, 227 N.E.2d 201.

Therefore, we overrule defendant's sixth proposition of law.

In his seventh proposition of law, defendant asserts that

the statements he gave to the police officers were made under

the impression that he would receive leniency or some other

benefit. Inasmuch as he received no leniency, defendant argues

that the statements made should be inadmissible in any later

trial.

In our view, defendant's argument is without support. The

record is totally devoid of anything that could be remotely

characterized as a plea-bargain arrangement between defendant

and the police officers. Accordingly, we summarily overrule

defendant's seventh proposition of law.

In his eighth proposition of law, defendant contends that

trial court committed prejudicial error by admitting into

evidence other crimes, wrongs or acts committed by defendant.

Defendant submits that in so doing, the trial court violated

R.C. 2945.59, Evid.R. 404(B) and the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

The error complained of in this vein involves the

testimony of three witnesses for the prosecution. Candyce S.

Jenkins testified that in March 1984, defendant went to her

house, broke a window with his fist, and entered the premises

carrying a knife. Jenkins stated that defendant raped her

twice anally, once vaginally, and made her perform fellatio on

him.

Jenkins further testified that defendant bit her on the

back and on the breast during the rape, and told her that he

was going to stick the knife up her rectum, cut out her vagina

and cut off her breasts. Jenkins also stated that defendant

threatened to rape her baby, who was in another room in the

house, and cut her up. Jenkins stated that she was able to

escape from defendant while he put his pants back on, and that

she saw defendant flee to the field behind the Valu-King.

Defendant later pled guilty to the rape in juvenile court.

Mary Ann Brison testified that she was raped at knifepoint

by defendant on the morning of February 8, 1984 while walking

on a path leading from the Valu-King.

Stephen Melius testified that he was a cellmate of

defendant in the Juvenile Justice Center during the winter of

1984. Melius stated that defendant put his hand on him and

expressed a desire to perform anal intercourse and fellatio on

him. Melius testified that he refused both the defendant's

advances and the invitation to perform anal intercourse and

fellatio with defendant.

Evid.R. 404(B) provides:

"Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

that he acted in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident."

R.C. 2945.59 states as follows:

"In any criminal case in which the defendant's motive or

intent, the absence of mistake or accident on his part, or the

defendant's scheme, plan, or system in doing an act is

material, any acts of the defendant which tend to show his

motive or intent, the absence of mistake or accident on his

part, or the defendant's scheme, plan, or system in doing the

act in question may be proved, whether they are contemporaneous

with or prior or subsequent thereto, notwithstanding that such

proof may show or tend to show the commission of another crime

by the defendant."

In our view, the testimony of all three witnesses was

properly admitted since such testimony tended to show the

motive, plan and identity of defendant. See Benner, supra, 40

Ohio St.3d at 306, 533 N.E.2d at 708.

In State v. Flonnory (1972), 31 Ohio St.2d 124, 126, 60

O.O.2d 95, 96-97, 285 N.E.2d 726, 729, this court observed:

"Much confusion about R.C. 2945.59 might be avoided if it

were observed that nowhere therein do the words 'like' or

'similar' appear. The statute permits the showing of 'other

acts' when such other acts 'tend to show' certain things. If

such other acts do in fact 'tend to show' any of those things

they are admissible notwithstanding they may not be 'like' or

'similar' to the crime charged." (Emphasis added.)

Likewise, in State v. Jamison (1990), 49 Ohio St.3d 182,

552 N.E.2d 180, this court held in the syllabus:

"Other acts forming a unique, identifiable plan of

criminal activity are admissible to establish identity under

Evid R. 404(B). To be admissible these other acts must tend to

show by substantial proof 'identity' or other enumerated

purposes under Evid.R. 404(B). Although the standard for

admissibility is strict, the other acts need not be the same as

or similar to the crime charged. ***"

In light of these precedents, we believe that Jenkins's

testimony tended to identify defendant as an assailant of Fife

because similarly to the instant murder, defendant left his

mark by biting Jenkins during the commission of the rape.

Defendant's threat to Jenkins that he would stick the knife up

her rectum is similar to what was perpetrated on Fife, except

with a broken broom-like handle.

Brison's testimony tended to show defendant's plan to

attack and rape in the same wooded field area behind the

Valu-King where Fife was brutalized.

Melius's testimony tended to show defendant's motive to

forcibly have sex with another male.

In any event, even if the admission of the testimony was

improper, since the case was tried before a three-judge panel,

it must affirmatively appear on the record that the panel

relied on the alleged improper testimony. State v. Post

(1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759.

Given that the trial panel stated in its opinion weighing

the aggravating circumstances against the mitigating factors

that "no prior crimes were considered by the Court in any way

in reaching its verdict," we fail to see how defendant was

prejudiced. Accordingly, we overrule defendant's eighth

proposition of law.

In his ninth proposition of law, defendant submits that

his rights to due process and a fair and impartial trial were

violated when the trial court admitted evidence that was not

relevant, or whose relevance was outweighed by its prejudicial

effect.

The first example of error raised by defendant concerns

the testimony of Raleigh Hughes, an ambulance attendant who

arrived at the murder scene, who commented on the condition of

the victim's body. In summarizing his impression of what he

saw, Hughes stated that it was "one of the most gruesome things

I've ever seen."

While Hughes's testimony in this respect should probably

not have been admitted, there has been no showing of prejudice

that overcomes the presumption that the three-judge panel

considered only the relevant, nonprejudicial evidence

submitted. See Post, supra.

Defendant next challenges the admission of the broomstick

into evidence by arguing that there was no probative value in

its admission. However, we believe that admission of the stick

was properly justified for several reasons: (1) Donald Allgood

testified that he saw defendant "flick" a stick into the woods

at the time and near the place where the homicide took place;

(2) defendant stated on tape that Tim Combs stuck "[a] stick

*** [l]ike a broom handle thing" in the victim's rectal

opening; and (3) Dr. Adelman testified that the shape of the

stick in comparison to the injury inflicted in the victim's

rectum was "very similar to a key in a lock." Given the

foregoing testimony, we find that the stick was properly

admitted into evidence during the trial.

Lastly, defendant alleges error in the testimony of Dr.

Adelman that asphyxia by strangulation can cause a penile

erection. In our view, however, such testimony was relevant in

supplementing the testimony of Dr. Mertz to explain the

differences in the size of the marks made on the victim's penis

and the bite impression taken of defendant.

Based on all the foregoing, we find defendant's ninth

proposition of law to be not well taken.

Defendant, in his tenth proposition of law, contends he

was denied a fair trial because the trial court admitted into

evidence State's Exhibit 47, the broomstick. Defendant argues

under this proposition that the stick should not have been

admitted because it caused the trial court to erroneously draw

an inference from another inference. In support, defendant

relies on Sobolovitz v. Lubric Oil Co. (1923), 107 Ohio St.

204, 140 N.E. 634.

Upon a careful review of the record, we believe that the

facts adduced during trial led the court to draw only one

inference: that the stick was used on the victim and, thus, was

properly admitted. The admission by defendant that "a broom

handle thing" was used, Allgood's testimony that he saw

defendant "flick" a stick into the woods, Dr. Adelman's "key in

a lock" testimony, and plant fibers found in the victim's

rectum all supported the single inference that the stick was

used on the victim. Also, passing over the fact that the

Sobolovitz holding was later limited, we find that it is

readily distinguishable from the cause sub judice.

Accordingly, we overrule defendant's tenth proposition of law.

In his eleventh proposition of law, defendant asserts that

his right to confrontation of witnesses against him was

violated when the prosecutor consulted a witness who was

subject to recall and who was a surprise witness of which

defense counsel had no prior knowledge. In support of his

argument, defendant relies on Davis v. Alaska (1975), 415 U.S.

308, 94 S.Ct. 1105, 39 L.Ed.2d 347, and State v. Prater (1983),

13 Ohio App.3d 98, 13 OBR 114, 468 N.E.2d 356.

We believe, however, that neither of these cases is on

point or supports defendant's assertion. When the witness

complained of, Stephen Melius, was recalled as a witness, he

was questioned by defense counsel with respect to his contacts

with the prosecution.3 A review of the testimony and other

evidence reveals that the defendant's right to confrontation

was not infringed, nor was his opportunity for

cross-examination denied or restricted. Even if we were to

assume that Melius was in fact a surprise witness, the

defendant had a full and fair opportunity to cross-examine on

Melius's limited testimony and, thus, any error was rendered

harmless. Accordingly, we find defendant's eleventh

proposition of law to be unmeritorious.

In his twelfth proposition of law, defendant argues that

he was denied due process because the pool of propective jurors

was drawn from only licensed drivers who were registered

voters, and that such pool did not reflect a fair cross-section

of the community.

Contrary to defendant's argument, the great weight of

authority supports the validity of voter registration lists as

the sole source of prospective jurors. See, e.g., State v.

Johnson (1972), 31 Ohio St.2d 106, 60 O.O.2d 85, 285 N.E.2d

751, paragraph two of the syllabus. Accord State v. Spirko

(1991), 59 Ohio St.3d 1, 35-36, 570 N.E.2d 229, 265.

In any event, defendant waived his right to a jury trial

and opted for a trial before a three-judge panel. Under these

circumstances, the denial of defendant's motion by the trial

court to expand the pool of potential jurors did not prejudice

him. Therefore, we summarily overrule defendant's twelfth

proposition of law.

In his thirteenth proposition of law, defendant contends

that the trial court failed to determine on the record whether

his waiver of a jury trial was made knowingly, intelligently

and voluntarily.

We have reviewed the record regarding defendant's waiver

and believe his argument in this vein is totally devoid of

merit. As this court pointed out in State v. Jells (1990), 53

Ohio St.3d 22, 26, 559 N.E.2d 464, 468: "The Criminal Rules

and the Revised Code are satisfied by a written waiver, signed

by the defendant, filed with the court, and made in open court,

after arraignment and opportunity to consult with counsel."

Since the trial court amply fulfilled the requirements set

forth in Jells, supra, we find defendant's thirteenth

proposition of law to be not well taken.

In his fourteenth proposition of law, defendant asserts

that the trial court committed reversible error in denying him

the funds necessary to employ an expert for purposes of a

motion for closure of a pretrial hearing that was necessary to

preserve a fair and impartial jury.

We find this assertion to be without merit. Even assuming

that the trial court erred in this vein, any prejudice to

defendant was eliminated by his subsequent waiver of his right

to a trial by jury. Accordingly, we summarily reject

defendant's fourteenth proposition of law.

In his fifteenth proposition of law, defendant argues that

the trial panel abused its discretion in admitting a predeath

photograph of the victim and permitting the victim's mother to

testify about her family. Defendant submits that introduction

of such sympathy testimony constitutes reversible error.

In our view, defendant's claim of error is without merit.

Defendant tries to raise Miriam Fife's testimony to the level

of an impermissible victim-impact statement proscribed by Booth

v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed. 440,

but a careful review of her testimony reveals nothing even

remotely approaching impermissible "victim impact evidence."

In any event, we note once again that the cause was tried

before a three-judge panel and not a jury, and we find nothing

which would indicate that the three-judge panel relied on such

evidence in arriving at its sentence. Post, supra. Therefore,

we overrule defendant's fifteenth proposition of law.

Defendant, in his sixteenth proposition of law, contends

that his rights to a fair trial and to effective assistance of

counsel were violated by the state's repeated failure to comply

with the discovery requirements of Crim. R. 16. Specifically,

defendant submits that the state failed to provide the

following discoverable information: (1) Donald Allgood's

identification of defendant from a photo array, (2) the photo

array itself, (3) photos of defendant with officers at the

crime scene and accompanying oral statements of defendant, (4)

the testimony of Stephen Melius, and (5) photos utilized by

defense witness Dr. Levine in his testimony regarding the bite

marks on the victim's penis.

In State v. Wickline (1990), 50 Ohio St.3d 114, 117, 552

N.E.2d 913, this court reaffirmed the standard of "materiality"

set forth in State v. Johnston (1988), 39 Ohio St.3d 48, 529

N.E.2d 898, 917, paragraph five of the syllabus:

"In determining whether the prosecution improperly

suppressed evidence favorable to an accused, such evidence

shall be deemed material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. A 'reasonable probability' is a probability

sufficient to undermine confidence in the outcome. This

standard of materiality applies regardless of whether the

evidence is specifically, generally or not at all requested by

the defense. (United States v. Bagley *** [1985], 473 U.S. 667

[105 S.Ct. 3375, 87 L.Ed.2d 481], followed.)"

Upon reviewing the items enumerated by defendant, we find

that his contentions in this respect are without merit. With

regard to the pictures used by Dr. Levine, we point out that he

was defendant's expert witness and it is undisputed the defense

was aware, through discovery, that Dr. Levine concluded the

bite marks could have been made by defendant. Even if

defendant had had the photographs used by Dr. Levine, the

outcome of the trial would not have been different.

We also discern no prejudice to defendant from the state's

failure to supply the photo array used by Donald Allgood. The

photo array was not introduced at trial and was not "material"

under the Johnston test.

With respect to the photos of defendant with the officers

at the crime scene, we note that the trial panel did, pursuant

to Crim.R. 16(E)(3), offer defendant a continuance, but

defendant declined. The statements made by defendant at the

crime scene were never transcribed. Once again, we find no

prejudicial error in the state's failure to supply such photos

pursuant to Crim.R. 16.

In regard to the testimony of Stephen Melius, we believe

that such testimony although of some relevance, was not crucial

and merely dealt with a collateral similar act. In addition,

the defense cross-examined Melius and recalled him as a witness

the day after his initial testimony. Defendant has not

articulated how Melius's testimony was "material" or would have

affected trial preparation, strategy or outcome. In any event,

the trial panel stated that it disregarded defendant's prior

acts.

Since we believe that no prejudicial error has been shown,

we overrule defendant's sixteenth proposition of law.

In his seventeenth proposition of law, defendant argues

that the trial panel abused its discretion in admitting

photographs of the victim that he characterizes as "highly

prejudicial, gross and unnecessary" and lacking in probative

value.

In State v. Maurer (1984), 15 Ohio St.3d 239, 266, 15 OBR

379, 402, 473 N.E.2d 768, 792, this court stated that

"[p]roperly authenticated photographs, even if gruesome, are

admissible in a capital prosecution if relevant and of

probative value in assisting the trier of fact to determine the

issues or are illustrative of testimony and other evidence, as

long as the danger of material prejudice to a defendant is

outweighed by their probative value and the photographs are not

repetitive or cumulative in number." See, also, Benner, supra,

and State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d

394.

In our view, the probative value of the photographs

complained of far outweighed any prejudicial effect. Similar

to our holding in Jells, supra, which was also tried before a

three-judge panel, the outcome would not have been different

here even if the gruesome photographs had not been introduced

into evidence. The photographs in issue were relevant,

however, to support the testimony of the expert witnesses

during trial. In any event, since the introduction of such

photographs did not constitute prejudicial error, we overrule

defendant's seventeenth proposition of law.

In his eighteenth proposition of law, defendant asserts

that he was denied a fair trial by prosecutorial misconduct

during both the guilt and mitigation phase closing arguments.

Specifically, defendants cites fourteen instances of what he

alleges to be improper prosecutorial comments.4

In State v. Liberatore (1982), 69 Ohio St.2d 583, 589, 23

O.O.3d 489, 493, 433 N.E.2d 561, 566, this court observed that

"the prosecution is entitled to a certain degree of latitude in

summation." Additionally, in State v. White (1968), 15 Ohio

St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70, we noted

that "[w]e indulge in the usual presumption that in a bench

trial 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."

See, also, Jells, supra, and Post, supra.

A review of the instances cited by defendant indicates

that no objections were raised when any of the complained-of

comments were made, and therefore any error is deemed waived.

State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d

293, . In addition, we find that neither prejudicial error

nor plain error as set forth in State v. Long (1978), 53 Ohio

St.2d 91, 7 O.O.3d 178, 372 N.E. 2d 804, is present in the

context in which the comments by the prosecution were made.

Accordingly, we find defendant's eighteenth proposition of law

to be not well taken.

Defendant, in his nineteenth proposition of law, cites

seven instances in which he was denied a fair trial due to the

ineffective assistance of counsel in that counsel failed: (1)

to request hearings on all the pretrial motions that were

filed; (2) to attempt to seat a jury before waiving the right

to a jury trial; (3) to fully advise the defendant of his legal

rights concerning his waiver of a jury trial so that he could

voluntarily, knowingly and intelligently decide whether to

waive the right; (4) to enter a continuing objection to a

police officer's testimony of his belief that defendant was

lying; (5) to timely file a motion for a new trial with a

hearing; (6) to object to the state's improper closing

argument; and (7) to preserve the record or otherwise object on

any issue that this court or any future court deems waived by

such omission.

In Strickland v. Washington (1984), 466 U.S. 668, 687, 104

S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, the high court

established a two-prong analysis for determining whether

ineffective assistance of counsel merits a reversal of a

criminal conviction:

"*** First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel

made errors so serious tht counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel's

errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable. ***"

In applying the Strickland standard to the seven instances

of ineffective assistance of counsel, and upon reviewing the

instances both individually and collectively, we find no

prejudice to defendant that compels a reversal of his

conviction. Therefore, we overrule defendant's nineteenth

proposition of law.

In his twentieth proposition of law, defendant asserts

that "the trial court erred in entering a judgment of

conviction for kidnapping and the other felonies where

convictions on both offenses are contrary to R.C. 2941.25.

Secondly, where an underlying felony count which is also used

as a specification for aggravated murder merges, then it cannot

be considered as an additional specification for sentencing

purposes."

In the cause sub judice, defendant was convicted of

kidnapping, rape, aggravated arson, felonious sexual

penetration and aggravated murder.

R.C. 2941.25 provides as follows:

"(A) Where the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import,

the indictment or information may contain counts for all such

offenses, but the defendant may be convicted of only one.

"(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in

two or more offenses of the same or similar kind committed

separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and

the defendant may be convicted of all of them."

In State v. Blankenship (1988), 38 Ohio St.3d 116, 117,

526 N.E.2d 816, 817, this court summarized the many precedents

involving R.C. 2941.25:

"This court has set forth a two-tiered test to determine

whether two crimes with which a defendant is charged are allied

offenses of similar import. In the first step, the elements of

the two crimes are compared. If the elements of the offenses

correspond to such a degree that the commission of one crime

will result in the commission of the other, the crimes are

allied offenses of similar import and the court must then

proceed to the second step. In the second step the defendant's

conduct is reviewed to determine whether the defendant can be

convicted of both offenses. If the court finds either that the

crimes were committed separately or that there was a separate

animus for each crime, the defendant may be convicted of both

offenses."

In State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d

373, 397 N.E.2d 1345, a case upon which defendant relies, this

court found rape and kidnapping to be allied offenses of

similar import. However, the Logan court also held that where

murder is the underlying crime, a kidnapping in facilitation

thereof would generally constitute a separately cognizable

offense. Id. at 135, 14 O.O.3d at 379, 397 N.E.2d at 1352.

Similarly, in State v. Powell (1990), 49 Ohio St.3d 255,

262, 552 N.E.2d 191, 199, this court found kidnapping and

attempted rape not to be allied offenses of similar import.

In the instant cause, the record reflects that the

kidnapping commenced near the parking lot of Valu-King.

Defendant, along with Tim Combs, forcibly removed Raymond Fife

from the path near the parking lot to a wooded area where they

could not be seen. There, the victim was purposely and

repeatedly beaten on the head and body. This does not appear

to have been done for the immediate motive of rape, felonious

penetration or aggravated arson, but to terrorize and inflict

serious physical harm. See R.C. 2905.01(A)(3) (kidnapping).

Anal intercourse was also performed forcibly on the

victim, which constitutes rape. In addition, the bite marks on

the victim's penis indicate that fellatio was performed by

defendant. A piece of wood was stuck into the victim's anus

(felonious sexual penetration). The evidence also shows that

the victim was strangled by his own underwear and set on fire

(aggravated arson).

The foregoing scenario demonstrates that not only was

there a separate immediate motive or animus, but that the acts

were committed separately with the kidnapping continuing after

the rape.

Based on the facts and evidence set forth in the record,

as well as Logan, supra, we hold that the crimes upon which

defendant was convicted were not allied offenses of similar

import and the trial panel did not err in considering the

specifications for sentencing purposes. Accordingly, we find

defendant's twentieth proposition of law to be without merit.

In his twenty-first proposition of law, defendant argues

that his constitutional rights were violated when the trial

panel denied his motion for a new trial without a hearing.

Crim.R. 33 allows a trial court to entertain a motion for

a new trial, and "[t]he allowance of a motion for a new trial

on the grounds of newly discovered evidence is within the

competence and discretion of the trial judge; and in the

absence of a clear showing of abuse such decision will not be

disturbed." State v. Williams (1975), 43 Ohio St.2d 88, 72

O.O.2d 49, 330 N.E.2d 891, paragraph two of the syllabus.

A review of the record reveals that the only newly

discovered evidence proffered by defendant at the time of his

motion was the affidavit of his brother, Raymond Vaughn, who

recanted his sworn testimony that he had seen defendant washing

blood out of pants. In our opinion, even with the recantation

affidavit, the result of the defendant's trial would not have

been different. See State v. Duling (1970), 21 Ohio St.2d 13,

50 O.O.2d 40, 254 N.E.2d 670.

Since we find no abuse of discretion by the trial court in

this vein, we overrule defendant's twenty-first proposition of

law.

In his twenty-second proposition of law, defendant

essentially contends that Ohio's statutory framework for

imposition of capital punishment creates a mandatory sentencing

scheme in contravention to both the state and federal

constitutions.

We find defendant's argument in this vein to be not well

taken. As this court noted in State v. Jenkins (1984), 15 Ohio

St.3d 164, 174, 15 OBR 311, 320, 473 N.E.2d 264, 279: "[t]he

system currently in place in Ohio does require the sentencing

authority to focus on the particular nature of the crime as

well as allow the accused to present a broad range of specified

and nonspecified factors in mitigation of the imposition of the

death sentence."

In addition, this court upheld the statutory framework

assailed by defendant in State v. Buell (1986), 22 Ohio St.3d

124, 22 OBR 203, 489 N.E.2d 795. Accordingly, we reject

defendant's twenty-second proposition of law.

In his twenty-third proposition of law, defendant argues

that the trial panel failed to consider all of the evidence in

support of mitigation during the penalty phase, and thus

violated R.C. 2929.03(F) and the Eighth and Fourteenth

Amendments to the United States Constitution.

Our careful review of the sentencing opinion, however,

convinces us that the trial court did in fact consider all

mitigating factors presented by defendant, and articulated the

reason each was outweighed by the aggravating circumstances

beyond a reasonable doubt. Thus, we hold that the trial court

complied with the dictates of R.C. 2929.03(F). See State v.

Steffen (1987), 31 Ohio St.3d 111, 118, 31 OBR 273, 279, 509

N.E.2d 383, 391. Therefore, we overrule defendant's

twenty-third proposition of law.

In his twenty-fourth proposition of law, defendant

contends that the death penalty scheme established in R.C.

2903.01 and 2929.02 et seq. violates the United States and Ohio

Constitutions both facially and as applied to defendant.

The specific claims of unconstitutionality by defendant

have been rejected by this court in numerous cases. See, e.g.,

Jenkins, Buell, and Lott, supra. Accordingly, we reaffirm the

constitutionality of Ohio's death penalty scheme both facially

and as applied to defendant, especially since defendant

proffers no compelling reason as to why the death penalty

scheme is unconstitutional as applied to him. Therefore, we

overrule defendant's twenty-fourth proposition of law.

In his twenty-fifth and final proposition of law,

defendant argues that this court cannot find him guilty of

aggravated murder, or find that the death sentence is

proportionate and appropriate, under the independent appellate

review required by R.C. 2929.05(A).

As has been set forth in the factual recitation above, and

as will be seen in this court's independent review of the

defendant's guilt and death sentence, the conviction rendered

by the trial panel was supported by sufficient evidence and the

death sentence is both proportionate and appropriate. Thus, we

reject defendant's final proposition of law.

Having reviewed the various propositions of law raised by

defendant, and having found none of them to be meritorious, we

next turn to our responsibility of independently weighing the

aggravating circumstances against the mitigating factors of the

case.

In so doing, we review the testimony in the record, and

note first that defendant's mother, Vera Williams, testified

that all of her children were "slow" and that defendant's

father never lived with the family. In sum, defendant had a

poor family environment.

Dr. Douglas Darnall, a psychologist, testified that

defendant had an I.Q. of 55 and that his intelligence level

according to testing fluctuates between mild retarded and

borderline intellectual functioning, and that he is of limited

intellectual ability. Dr. Darnall did state, however, that

defendant was able to intellectually understand right from

wrong.

Dr. Nancy Schmidtgoessling, a clinical psychologist,

testified that defendant had a full scale I.Q. of 68, which is

in the mild range of mental retardation, and that the

defendant's mother was also mildly retarded. Dr.

Schmidtgoessling also testified that defendant's moral

development level was "primitive," a level at which "one do[es]

things based on whether you think you'll get caught or whether

it feels good. [T]hat's essentially whereabout [sic] a 2-year

old is."

Dr. Douglas Crush, another psychologist, testified that

defendant had a full-scale I.Q. of 64, and that his upper level

cortical functioning indicated very poor efficiency.

Other mitigation testimony on behalf of defendant

indicated that he was a follower and not a leader, who had to

be placed in group homes during his youth.

Defendant also gave an unsworn statement to the trial

court, in which he stated that he was sorry what happened, and

that he didn't want to die. Defendant then started to cry.

With respect to the enumerated mitigating factors set

forth in R.C. 2929.04, we find that defendant's mental

retardation is a possible mitigating factor. See Penry v.

Lynaugh (1989), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256.

However, as the Penry court noted, there are various levels of

mental retardation, and a person must be viewed individually as

to the degree of retardation.

Upon a careful review of the expert testimony proffered

with respect to defendant's mental retardation, we find a very

tenuous relationship between the acts he committed and his

level of mental retardation. As several of the experts pointed

out, defendant did not suffer from any psychosis, and he knew

right from wrong.

Defendant's relative youth, i.e., eighteen years old at

the time of the murder, is entitled to some weight. However,

we believe this mitigating factor is clearly outweighed by the

aggravating circumstances of the case. In addition,

defendant's poor family environment, even if considered in

mitigation, in no way outweighs the aggravating circumstances.

When considering the manner in which the victim was

kidnapped and killed; the rape, burning, strangulation and

torture the victim endured; and the total brutalization that

took place, we find that these aggravating circumstances

outweigh the mitigating factors beyond a reasonable doubt.

Finally, this court must decide whether the sentence of

death imposed here is excessive or disproportionate to the

sentences in similar cases. We hold that the death sentence

here is neither excessive nor disproportionate to the sentences

approved for kidnapping/rape/murder in State v. Durr (1991), 58

Ohio St.3d 86, 568 N.E.2d 674; Benner, Steffen, and Apanovitch,

supra. Accordingly, the penalty imposed here is appropriate.

In conclusion, we first find that there is no merit to any

of the specific propositions of law raised by defendant that

would compel a reversal of his convictions of the crimes

described. Second, we find that the aggravating circumstances

outweigh the mitigating factors presented, beyond a reasonable

doubt. Third, we find the evidence sufficient to support the

conviction, and the sentence of death appropriate in this case,

as it is neither excessive nor disproportionate to the penalty

imposed in similar cases. Therefore, in accordance with R.C.

2929.05(A), we affirm the conviction and sentence of death in

this cause.

Accordingly, the judgment of the court of appeals is

hereby affirmed.

Judgment affirmed.

Moyer, C.J., Holmes, Douglas, Wright, H. Brown and

Resnick, JJ., concur.

FOOTNOTES:

1 Timothy Combs was also charged and convicted as a

principal offender in the murder of Raymond Fife. See State v.

Combs (Dec. 2, 1988), Portage App. No. 1725, unreported, 1988

WL 129449.

2 R.C. 2935.05 provides as follows:

"When a person named in section 2935.03 of the Revised

Code has arrested a person without a warrant, he shall, without

unnecessary delay, take the person arrested before a court or

magistrate having jurisdiction of the offense, and shall file

or cause to be filed an affidavit describing the offense for

which the person was arrested. Such affidavit shall be filed

either with the court or magistrate, or with the prosecuting

attorney or other attorney charged by law with the prosecution

of crimes before such court or magistrate and if filed with

such attorney he shall forthwith file with such court or

magistrate a complaint, based on such affidavit."

3 Upon recall, the following exchange took place between

defense counsel and Stephen Melius:

"Q. *** have you had an occasion to talk with any

officers of the Warren Police Department prior to the time you

arrived here today and were sitting in the hallway?

"A. Yes, sir.

"***

"Q. And who were those officers?

"A. This guy sitting right here (indicating).

"Q. This guy sitting right here (indicated)? Pete?

Technically, he's an officer. Pete. And what'd Pete talk to

you about?

"A. He just told me that you guys were going to subpoena

me back into Court, and he told me some of the questions that

you might ask me.

"Q. Oh, he did! Oh! Okay. That's interesting. What

kind of questions did he tell [you] I was going to ask you?

"A. He said you might -- that you might ask me that I

gave some of the wrong dates and stuff like tht.

"Q. Okay. Remember anything else?

"A. Um-hum. No.

"Q. Well, how'd you answer the questions? What did he

ask you specifically?

"A. He asked me if -- that I was -- that I gave you the

wrong dates about the times me and Danny Lee Hill were in JJC

together.

"Q. He told you you gave the wrong dates?

"A. Yes.

"Q. I see. What else did he tell you?

"A. That's about it.

"Q. That's about it?

"A. Um-hum.

"Q. Okay. ***."

4 The instances of prosecutorial misconduct alleged by

defendant are as follows:

1. "You know, back on September 10th, our community had a

little boy, and we've had a lot of little boys in our

community, but this 12-year old boy we have not talked about

too much. We've dealt with him in an abstraction. He hasn't

been here. And the Court is aware of the leaps and bounds and

the rights of victims. I'm not trying to ignore the procedural

rights of the defendants in cases, but sometimes we forget and

don't pay attention when we talk about Constitutional Rights of

the defendant, and we don't, in the balance -- how about

Raymond Fife's right to live? How about his Constitutional

Rights to be here today, to be in school, to celebrate his 13th

birthday with his parents."

2. "The question that is to be determined by this Court

is whether that man [indicating to the defendant] and his

buddy, Timothy Combs, engaged in a criminal enterprise wherein

he destroyed and devoured a little boy on the 10th day of

September of 1985. *** I can't imagine in my 10 years as being

prosecutor that this could happen."

3. "Now, one witness that testified. Candyce Jenkins ***

describes the defendant as an 'animal.' The other one hatred."

4. "*** [B]ut he [the defendant] followed him [Timothy

Combs] back to the scene of the crime to look for evidence to

destroy so they could cover up their heinous, unbelieveable,

animalistic behavior. He would make the Marquis deSade proud!"

5. "Now, we know on September 10th, 1985, the year of our

Lord -- and I'm going to go through, as I view the evidence --

as Mr. Kontos and I see the facts to be and the truth to be."

6. "Maybe Mr. Lewis will argue that Raymond wasn't on the

bike. It didn't have fingerprints. Well, there's an

explanation, you don't necessarily have fingerprints on

everything. And rain will affect fingerprints as it will

affect blood."

7. "Who does this Court feel is more qualified? Mr.

Dehus or Mr. Gelfius on the charcoal lighter as to paint

thinner and hydrocarbons? I thought that his testimony was

much more credible. I don't feel Mr. Dehus; it couldn't break

down; very unlikely, and I don't think that's the case. I

think that the witness from the Arson Lab who deals strictly

with arson is the most credible witness in this case, and that

substantiates the State's case."

8. "No one wants to testify against his brother, just

like Morris Hill didn't want to testify against his nephew."

9. "Finally, Your Honors, to get this poor, dumb boy who

really wouldn't do anything, who tried to sexually attack Mr.

Melius, tried to put his mouth in the boy's penis, grabbed his

penis, we know he did violently rape Mary Ann Brison in the

same wooded area. Talked about how he talked hateful to her.

We know what he did to Candyce Jenkins; had anal sex, oral sex,

vaginal sex, once again, anal sex, had a knife and threatened

to cut her vagina out; bit her on the breast. Seems to be his

calling card; the bite. And when she screamed and yelled that

it hurt, he said, 'Good! I want it to hurt.' And that's what

this case is about. This case isn't just about a killing.

This case is about an individual who thrives and relishes on

inflicting pain and torture to other human beings."

10. "Raymond Fife was a 12-year-old boy; very active and

vibrant, who was caught in the middle of a living hell caused

by this defendant. Raymond Fife had no justice while he was

living, but he demands justice now even in his absence, and

justice demands, Your Honors, that you return a verdict of

guilty. ***"

11. "The reason that it is so clear is because the

defense has not shown by or has not substantiated or brought

about any mitigating factors in this case, and it's very clear,

aggravating circumstances, especially three of them, will

clearly outweigh the absence of any mitigation."

12. "Well, I'd like to cite a few days that they weren't

together: February 8th, 1984, when this defendant raped Mary

Ann Brison. They weren't together March 3rd, 1984, when this

defendant raped and brutalized Candyce Jenkins. They weren't

together April 1984 through April 1985 when this defendant was

incarcerated."

13. "In addition to that, he says he has difficulty with

his motor skills between the right hand and left hand and he's

not very good at that. He didn't have any problem grabbing

women that I told you about before. Grabbing them with his

left hand and the knife in the right hand while he sexually

assaulted them."

14. "Now, there was a witness that the State would have

wanted to present in this case, but unfortunately we could not

call him. Raymond Fife. He would have been able to testify as

to what happened that particular day. He would have been able

to tell all of us, including this defendant, how he felt when

he was abducted and helpless and felt doomed because he had no

opportunity to escape. He would have been able to tell us what

it felt like to be punched and continually kicked; what it felt

like to be strangled so severely that he'd be gasping for

breath. He'd be able to describe the pain involved and sexual

molestation. He'd also be able to tell you and tell all of us

what it would feel like -- the indescribable pain when your

flesh is burning and you're helpless to do anything about it.

And finally, he'd be able to tell us what it would be like to

have a stick rammed up your rectal cavity so deeply and so

severely that it perforates through the rectum and goes into

the urinary bladder. But he's not here to testify about that

thanks to this defendant.

"There's some other things that Raymond Fife can't come

here and testify about either. He can't testify about how he

misses his family, about how he misses his friends in the Scout

group, about how he'd like to be with his father in the

backyard feeding the birds, how he'd like to be able to live

and love and share his love with his family and friends, and he

will never be able to do that because of this defendant; this

manifestation of evil, this anomaly to mankind, this disgrace

to mankind sitting at the end of that table took care of that!

And the most commentary about the makeup of this defendant is

the manner of the death of Raymond Fife."