# State v. Hill

> Ohio Supreme Court · August 11, 1992 · 1992 Ohio 43

URL: https://www.frixlaw.com/law-library/cases/11147364

## Case

- **Court:** Ohio Supreme Court
- **Decided:** August 11, 1992
- **Citations:** 1992 Ohio 43
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Sweeney, J.
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11147364

## Opinion text

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Justine Michael, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.
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."

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11147364. Public record. Not legal advice.