State v. Lundgren

[This opinion has been published in Ohio Official Reports at 73 Ohio St.3d 474.]

THE STATE OF OHIO, APPELLEE, v. LUNDGREN, APPELLANT.

[Cite as State v. Lundgren, 1995-Ohio-227.]

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

(No. 93-2179—Submitted March 7, 1995—Decided August 30, 1995.)

Appeal from the Court of Appeals for Lake County, Nos. 90-L-15-140 and

91-L-036.

__________________

{¶ 1} In August 1990, a Lake County jury found cult leader Jeffrey

Lundgren guilty of the kidnapping and murder of five of his followers, all members

of the Avery family. The following summarizes the facts most relevant on appeal.

Lundgren's Background

{¶ 2} Lundgren was born in Missouri and raised in the Reorganized Church

of Jesus Christ of Latter Day Saints ("RLDS"). While attending college, Lundgren

met and married his wife, Alice. Unsuccessful in school, Lundgren joined the Navy

and served in the Vietnam War in the early 1970s. After his honorable discharge in

1974, he unsuccessfully held a series of hospital maintenance and other jobs in

Missouri.

{¶ 3} Lundgren's religious beliefs form the foundation of this case.

Although the RLDS, headquartered in Independence, Missouri, differs from the

Utah-based Mormon Church, both religions trace their origins back to the prophet

Joseph Smith, Jr., who published the Book of Mormon in 1830. During the 1830s,

Smith moved to Kirtland, Ohio, and built the Kirtland Temple, now managed by

the RLDS.

{¶ 4} In summer 1984, Lundgren and his family moved from Missouri to

Kirtland so that Lundgren could serve as senior temple guide, a job that had no pay

but did include family lodging. Lundgren initially attracted favorable attention in

SUPREME COURT OF OHIO

his Sunday school classes and as a guide. William Russell, a religion professor at

an RLDS college, testified that Lundgren knew scripture exceptionally well,

especially the Book of Mormon, and followed the chiastic method of scripture

interpretation, which involves searching text for recurring patterns. However,

Lundgren did not understand the Bible's historical context and tended to

concentrate on this esoteric method. Lundgren generally fit within the traditions of

the RLDS faith in that he described visions, direct spiritual experiences, and God

speaking directly to prophets.

{¶ 5} Over the next three years, Lundgren served as a temple guide and

taught classes on the Bible and the Book of Mormon. Despite the church's direction

to turn over all money received from temple visitors to the church, Lundgren

solicited and kept contributions received from visitors. Temple contributions

dropped dramatically, and the temple bookstore also suffered fund shortages. The

church eventually removed Lundgren as a religion teacher and, in October 1987,

fired him as a temple guide and evicted him from his quarters next to the temple.

The Cult

{¶ 6} From 1985 on, Lundgren attracted a substantial following in his

classes because of his knowledge of religious texts. Eventually, Kevin Currie and

Sharon Bluntschly moved in with the Lundgrens, as did Richard Brand, Daniel

Kraft, and Gregory Winship. Debbie Olivarez joined the group in April 1988.

Those living with the Lundgrens called him "Dad" and contributed their paychecks

and other money for common group expenses. Two couples, Ron and Susan Luff

and Dennis and Tonya Patrick, also contributed money, but did not live with the

Lundgrens. In the spring of 1987, the Avery family moved from Missouri to follow

Lundgren's teachings. The Avery family included Dennis, age 49; Cheryl, age 46;

and their daughters, Trina, age 15; Rebecca, age 13; and Karen, age 7.

{¶ 7} After Lundgren's eviction, he and his family and followers moved to

a rented farmhouse. There, Lundgren continued his classes, stressing the

2

January Term, 1995

importance of the Kirtland Temple. According to Lundgren, his followers had to

recapture the temple, an earthquake would elevate it, and Christ would return and

establish Zion. Lundgren also spoke of his conversations with God and his visions.

He discussed the Book of Revelations and the Book of Mormon, and referred to

"pruning the vineyard" and the need to kill ten followers before Zion could be

created. Eventually, the men in the group undertook paramilitary training to

prepare for a temple assault. Lundgren picked May 3, 1988 (his birthday) as the

day to recapture the temple, but later decided it was not yet time. The Averys, on

the fringe of the group, were invited to only a few of Lundgren's prayer meetings.

{¶ 8} By October 1988, the RLDS church had excommunicated Lundgren.

In early 1989, Lundgren was stressing the need for his followers to go on a

wilderness trip before Zion would be possible. By that time, both Kevin Currie and

another follower, Shar Olson, had left the group, but Kathryn and Larry Keith

Johnson had joined.

The Murders

{¶ 9} In April 1989, at Lundgren's direction, the group began preparing for

the wilderness trip. Those who worked left their jobs and some bought provisions.

Lundgren encouraged all of the followers to use up any of their available credit

cards. All of the group members, including the Averys, gathered their worldly

possessions. Around April 12, two or three of the followers secretly began digging

a six-by-seven-foot pit in the dirt floor of Lundgren's barn. Lundgren told Cheryl

Avery to write and tell her family that they were going to Wyoming. Then,

Lundgren invited the Averys to dinner.

{¶ 10} On April 17, 1989, Dennis, Cheryl and their three daughters ate

dinner at Lundgren's farmhouse. After dinner, Lundgren went out to the barn with

his son, Damon, and four followers, Brand, Kraft, Winship, and Ron Luff. The

Averys stayed in the house with the women and children. At Lundgren's direction,

Luff individually led each Avery family member out to the barn, where each was

3

SUPREME COURT OF OHIO

bound and gagged by the men. After the men placed each Avery family member

into the pit, Lundgren shot each person two or three times with a .45 caliber

semiautomatic weapon. The men then filled the pit with dirt and stones.

Afterwards, Lundgren and the others went back to the farmhouse and held a prayer

meeting.

The Months Prior to Lundgren's Arrest

{¶ 11} The next day, April 18, police officers and FBI agents visited the

Lundgren farm to investigate reports about the planned temple assault. Everyone

interviewed said that they were at the farm voluntarily and denied knowing

anything about plans to assault the temple. The FBI left without arresting anyone,

and the group drove away on their wilderness trip.

{¶ 12} Lundgren selected mountain campsites near Davis, West Virginia,

and the group lived in tents there through October 1989. Some of the followers

took jobs, and the men continued their military exercises. While in West Virginia,

Lundgren chose Tonya Patrick as his second wife. That arrangement did not work

out, so Lundgren then picked Kathryn Johnson as his second wife. That choice

upset Larry Johnson, Kathryn's husband, and contributed to group dissension. By

October 1989, Lundgren, his family, and about ten of his followers moved to

Missouri. However, more dissension occurred and, by the end of December 1989,

Larry Johnson had contacted federal law enforcement authorities about the

murders.

{¶ 13} On January 3, 1990, Kirtland police began digging out the pit in the

barn and found Dennis Avery's body. Police uncovered the other Avery family

members' bodies the next day. Lundgren had shot Dennis twice in the back and

Cheryl three times in the torso. He shot Trina once in the head and twice in the

body, Rebecca in the back and thigh, and Karen in the head and chest. The coroner

found silver duct tape wrapped around the victims' heads, hands, and feet. The

origin of two damaged bullets found at the scene was unknown. Police discovered

4

January Term, 1995

that a .45 caliber semiautomatic weapon, belonging to Lundgren, had fired all of

the other bullets they recovered. Lundgren bought the weapon in 1987 and sold it

in West Virginia in October 1989. On January 7, 1990, federal authorities arrested

Lundgren in California.

Lundgren's Conviction and Sentence

{¶ 14} During his opening statement, Lundgren conceded that he had shot

the Avery family. At the close of the trial, the jury found Lundgren guilty of five

counts of aggravated murder with each count containing two death penalty

specifications. One of the specifications alleged multiple murders and the other

alleged a felony-murder kidnapping specification. The jury additionally convicted

Lundgren as charged with five kidnapping offenses.

{¶ 15} After further deliberation, the jury recommended the death penalty

for each aggravated murder count. The trial court sentenced Lundgren to death on

each aggravated murder count and to consecutive terms of imprisonment for each

kidnapping offense. The court of appeals affirmed the convictions and the

sentences.

{¶ 16} The cause is now before this court upon an appeal as of right.

__________________

Charles E. Coulson, Lake County Prosecuting Attorney, and Ariana E.

Tarighati, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, Joann M. Jolstad and Jane P.

Perry, Assistant Public Defenders, for appellant.

__________________

COOK, J.

{¶ 17} Lundgren has presented this court with thirty-two propositions of

law concerning both the guilt and sentencing phases of his trial (see Appendix).

For the following reasons, we affirm the appeals court's judgment and uphold

Lundgren's death sentences.

5

SUPREME COURT OF OHIO

I

The Guilt Phase

{¶ 18} With his first proposition of law, Lundgren argues that massive

pretrial publicity in Lake County necessitated a change of venue. In May 1990,

Lundgren moved to change venue, later filed addendums, and then renewed the

motion at the conclusion of voir dire. The trial court rejected any venue change.

Admittedly, the January 1990 recovery of five bodies from the Kirtland barn

resulted in massive, inflammatory, statewide publicity. According to The Plain

Dealer, the Lake County Prosecutor publicly asserted that the members of the

Lundgren group were the "most inhuman people this county has ever seen, and they

are going to die in the electric chair." According to the second addendum, from

January through August 9, 1990, the Lake County News Herald printed a total of

two hundred twenty-seven Lundgren-related items, including sixty-one front page

articles. The Plain Dealer, widely circulated in Lake County, published some one

hundred twenty-three articles, including thirty on the front page. In that same

period, Cleveland television and radio stations frequently ran news and background

stories about the murders. For example, Lundgren asserts that Channel 43 had

sixty-six stories, Channel 5 had one hundred twelve stories, and Channel 8 had one

hundred sixty-nine stories. Although publicity diminished rapidly after January

1990, media reports concerning the disposition of charges against Lundgren's

followers kept the "Kirtland Massacre" case in the public eye.

{¶ 19} In June 1990, Dr. Jack Arbuthnot, a defense psychologist, directed a

community survey of some two hundred one Lake County residents who had been

called for jury duty in 1989. According to Arbuthnot, all those interviewed knew

about the case, and 37.5 percent said they discussed the case a lot. Approximately

fifty-seven percent thought Lundgren was definitely guilty, twenty-four percent

thought he was probably guilty, and just nineteen percent did not know. On the

basis of these and other answers, Arbuthnot concluded that Lundgren would not

6

January Term, 1995

receive a fair trial in Lake County. However, in contrast, Dr. Jon Krosnick, a

psychologist employed by the state, claimed that the defense psychologist had not

conducted or interpreted the survey in a professionally credible manner. He opined

that the survey's methodology was flawed, the questions were ambiguous and

poorly worded, and the results did not support the asserted conclusions. According

to Krosnick, twenty-three percent of prospective jurors had only occasional media

exposure, and sixty-three percent discussed the case a little or not at all. Also, at

least thirty-nine percent of those surveyed said they could serve as unbiased jurors.

{¶ 20} The crucial issue here is whether the trial court's refusal to change

venue violated Lundgren's fair trial rights. "[T]he right to jury trial guarantees to

the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors.*** In

the language of Lord Coke, a juror must be 'as indifferent as he stands unsworne.'"

Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755.

In Irvin and Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d

600, the Supreme Court reversed murder convictions because prejudicial pretrial

publicity had impaired the defendant's fair trial rights. See, also, Rideau v.

Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.

{¶ 21} Lundgren asserts that the pretrial publicity in this case was so

pervasive that the trial court should have presumed that prejudice would occur.

However, cases of presumed prejudice "are relatively rare. *** [P]retrial

publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair

trial." Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554, 96 S.Ct. 2791,

2800, 49 L.Ed.2d 683, 694-695. Indifference does not require ignorance. "In these

days of swift, widespread and diverse methods of communication, *** scarcely any

of those best qualified to serve as jurors will not have formed some impression or

opinion as to the merits of the case." Irvin, 366 U.S. at 722, 81 S.Ct. at 1642, 6

L.Ed.2d at 756.

7

SUPREME COURT OF OHIO

{¶ 22} Changes in venue help to protect fair trial rights. A trial court can

change venue "when it appears that a fair and impartial trial cannot be held" in that

court. Crim.R. 18; R.C. 2901.12(K). However, "'[a] change of venue rests largely

in the discretion of the trial court, and *** appellate courts should not disturb the

trial court's [venue] ruling *** unless it is clearly shown that the trial court has

abused its discretion.'" State v. Maurer (1984), 15 Ohio St.3d 239, 250, 15 OBR

379, 388-389, 473 N.E.2d 768, 780, quoting State v. Fairbanks (1972), 32 Ohio

St.2d 34, 37, 61 O.O.2d 241, 243, 289 N.E.2d 352, 355. "'[A] careful and searching

voir dire provides the best test of whether prejudicial pretrial publicity has

prevented obtaining a fair and impartial jury from the locality.'" State v. Landrum

(1990), 53 Ohio St.3d 107, 117, 559 N.E.2d 710, 722, quoting State v. Bayless

(1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 262, 357 N.E.2d 1035, 1051, death

penalty vacated (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155.

{¶ 23} While a change of venue may have been prudent in this case, we do

not find that the trial court abused its discretion in denying Lundgren's motion. The

trial court selected a jury following an extensive eight-day voir dire which included

individualized questioning as to the impact of pretrial publicity. The trial court

readily excused those in the venire who had formed fixed opinions or were

otherwise unsuitable. The jurors selected did not appear to have been excessively

exposed to media publicity. Those who said they held views expressed tentative

impressions and all of the jurors selected promised to set aside any information

received or views held and decide the case only on the evidence offered at trial.

Despite the fact that pretrial publicity was extensive, the trial judge was in the best

position to judge each juror's demeanor and fairness. Lundgren has not established

the rare case in which prejudice is presumed. Thus, we reject the first proposition

of law.

{¶ 24} We find that Lundgren's second proposition of law similarly lacks

merit. In that proposition, Lundgren argues that the trial judge should have granted

8

January Term, 1995

him a new trial because the same judge granted Luff, his accomplice, a change of

venue even after tentatively choosing twelve jurors. Although Lundgren

characterizes his argument as a claim of new evidence, his assertions amount to a

reiteration of the arguments we reviewed in the first proposition of law. A trial

court's decision to change venue for a codefendant's trial does not satisfy the criteria

required to obtain a new trial under Crim.R. 33(A)(6). See State v. Petro (1947),

148 Ohio St. 505, 36 O.O. 152, 76 N.E.2d 370, syllabus. Moreover, Luff's situation

is distinguishable from Lundgren's. Luff's venire was directly affected by the

publicity that existed during Lundgren's trial, whereas Lundgren's jurors were then

under strict instructions to avoid any publicity. Also, no method exists to compare

the jury venire in Luff's case with Lundgren's jury. Therefore, Lundgren's claim

that no principled distinction exists between the two cases is not well taken.

{¶ 25} In his twenty-eighth proposition of law, Lundgren argues that he was

denied a fair trial because the jury venires in his case overrepresented persons who

were twenty-five to fifty-four years old and sixty-five to seventy-four years old. He

contends that, in a pool of one hundred forty-five potential jurors, only eleven were

from ages eighteen to twenty-four and just ten were between the ages of fifty-five

and sixty-four. However, "[t]he array of veniremen need not reflect an exact cross

section of the community." State v. Strodes (1976), 48 Ohio St.2d 113, 115, 2

O.O.3d 271, 272, 357 N.E.2d 375, 377, death penalty vacated (1978), 438 U.S. 911,

98 S.Ct. 3135, 57 L.Ed.2d 1154. We note that Lundgren does not claim that

systematic or intentional exclusion occurred in this case. Duren v. Missouri (1979),

439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579; State v. Johnson (1972), 31 Ohio St.2d

106, 114, 60 O.O.2d 85, 90, 285 N.E.2d 751, 757. Furthermore, Lundgren never

raised this issue at trial and thus waived any complaint absent plain error. Crim.R.

24(E); State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364,

death penalty vacated (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156. Thus,

we reject proposition of law twenty-eight.

9

SUPREME COURT OF OHIO

{¶ 26} Several of Lundgren's propositions of law concern different aspects

of the voir dire. We will discuss each of these issues in turn.

{¶ 27} In the third proposition of law, Lundgren argues that the trial court

unfairly restricted voir dire as to prospective jurors' views about specific mitigating

factors. In particular, Lundgren attempted to ask if individual jurors would consider

and give weight to each of the statutory mitigating factors found in R.C.

2929.04(B). The trial court ruled that such questions constituted juror

"indoctrination," but did allow jurors to be asked generally if they would consider

mitigating factors and evidence as instructed.

{¶ 28} Crim.R. 24(A) requires that counsel be given an opportunity to voir

dire prospective jurors or to supplement the court's voir dire examination. Accord

R.C. 2945.27. However, the scope of voir dire falls within a trial court's discretion

and varies with the circumstances. State v. Bedford (1988), 39 Ohio St.3d 122, 129,

529 N.E.2d 913, 920. Accord Rosales-Lopez v. United States (1981), 451 U.S. 182,

101 S.Ct. 1629, 68 L.Ed.2d 22. Restrictions on voir dire have generally been

upheld. See State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285;

State v. Jenkins (1984), 15 Ohio St.3d 164, 186, 15 OBR 311, 330, 473 N.E.2d 264,

280. Lundgren contends that, given the extensive pretrial publicity in this case, the

trial court's limitation on voir dire prevented him from adequately unearthing juror

bias and effectively using his peremptory challenges. The cases cited by Lundgren,

however, do not involve the limited restriction imposed here.

{¶ 29} In this case, Lundgren had full opportunity to question all of the

prospective jurors during the eight-day voir dire and individually ask them about

their media exposure and their attitudes about the death penalty. Lundgren argues

that the potential jurors could not meaningfully say whether they would properly

consider and weigh the statutory mitigating factors without knowing what the

factors were. However, weighing aggravating circumstances against mitigating

factors is a complex process. Jurors weigh mitigating factors together, not singly,

10

January Term, 1995

and do so collectively as a jury in the context of a penalty hearing. Realistically,

jurors cannot be asked to weigh specific factors until they have heard all the

evidence and been fully instructed on the applicable law. Moreover, "evidence of

an offender's history, background and character" that is not found to be mitigating

"need be given little or no weight against the aggravating circumstances." State v.

Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus.

We find that the trial court exercised appropriate discretion in not allowing jurors

to be asked if they would consider specifically named mitigating factors. The third

proposition of law lacks merit.

{¶ 30} In his fourth proposition of law, Lundgren challenges the trial court's

death penalty qualification process, asserting that the court's questions predisposed

the jurors toward the death penalty. Similarly, in proposition of law seventeen,

Lundgren asserts that the trial court committed jurors to a death penalty verdict

when it inquired if the jurors could impose the death penalty "upon the Defendant."

As Lundgren failed to object to the court's line of questioning at trial, we review

these arguments under the plain-error standard. For the following reasons, we find

no plain error exists.

{¶ 31} During voir dire, the judge asked each juror if he or she could

"participate" in a death penalty verdict if the "evidence and law" required the

recommendation of such a sentence. He also asked the jurors if they could "fairly

consider the death penalty" if the "law and evidence" required deliberation on the

subject. Finally, the judge asked if the jurors' views on capital punishment would

"prevent or substantially impair" the performance of their duties as jurors. By

asking these questions aimed at eliciting the jurors' potential biases, the court

carried out its duty to ensure that jurors could fairly and impartially consider the

death penalty in accordance with the law. See R.C. 2945.25(C) and State v. Rogers

(1985), 17 Ohio St.3d 174, 177-178, 17 OBR 414, 417, 478 N.E.2d 984, 989.

Contrary to Lundgren's argument, the trial court's questions did not repeatedly

11

SUPREME COURT OF OHIO

imply that jurors had to impose the death penalty. In fact, the different phrasing of

the questions shows that the court was attempting to determine if there was any

level at which any of the jurors could not obey the law and the court's instructions

concerning the death penalty. Thus, we find the court's questions did not predispose

any juror toward the death penalty, and Lundgren has not proven that his substantial

rights were affected. We also find the court's question about imposition of the death

penalty "upon the Defendant" to be proper. State v. Lorraine (1993), 66 Ohio St.3d

414, 424-425, 613 N.E.2d 212, 221. The question was permissible under Rogers

and did not result in any type of juror commitment to the death penalty. State v.

Tyler (1990), 50 Ohio St.3d 24, 32, 553 N.E.2d 576, 588.

{¶ 32} Additionally, in proposition of law four, Lundgren argues that the

trial court made incorrect statements to the jury concerning the role of mitigating

factors, allowed the prosecution to ask improper questions about mitigating factors,

promoted juror confusion concerning mitigating factors, and failed to adequately

investigate juror misconduct. Given our review of the record, we find Lundgren's

claims concerning the trial court's handling of the mitigation topic without merit.

We will discuss Lundgren's arguments concerning juror misconduct in our

discussion of proposition of law five. Propositions of law four and seventeen are

rejected.

{¶ 33} With proposition of law five, Lundgren alleges that several jurors'

responses to voir dire questioning show that they were not fair and impartial.

Lundgren first complains that the trial court should have excused jurors Crane and

Bailey for cause because they were unwilling to consider mitigation. Specifically,

he points to instances in which Crane could not, in the abstract, "think of any

mitigating circumstances *** that would *** diminish the responsibility" for

killing three young children and in which Bailey answered "No," when asked in the

abstract if she would "consider any mitigating factors as reasons to justify a

sentence of less than the death penalty for the killing of three children." However,

12

January Term, 1995

after reviewing the voir dire of these jurors in its entirety, we find that the trial court

did not abuse its discretion in keeping Crane and Bailey. When first asked about

mitigation, Crane replied that he had to "listen to everything before" making a "very

serious decision like that." He assured counsel that he could return less than a death

sentence and that the application of the death penalty "would have to depend on the

circumstances of the case." Furthermore, Bailey explained that she did not

understand the mitigation question when she responded negatively. Both Crane

and Bailey fully agreed to consider mitigating factors as instructed by the court.

Their inability to conjure abstract mitigating factors does not reflect an inability to

be fair and impartial jurors.

{¶ 34} Next, Lundgren complains that jurors Rossman, Byers and King

were unable to accord him the presumption of innocence. We also find this

argument lacks merit. Juror Rossman agreed that he had some impressions that

Lundgren "very well may be guilty"; however, he also said that he could set aside

any opinions he may have associated with Lundgren and consider only evidence

offered at trial. Rossman unequivocally responded that he understood the state's

burden of proof and that he would recognize the accused's presumption of

innocence. As to guilt, juror Byers admitted that he found "a little bit difficult" the

concept that Lundgren did not have to present any evidence in his defense and that

the state had the burden of proving Lundgren's guilt. However, in response to

further questioning from the judge and a prosecutor, Byers unequivocally agreed

that he could follow the court's instructions and Ohio law and not consider the fact

that Lundgren did not offer any evidence if in fact that situation occurred. Finally,

even though King also had the "impression" that Lundgren was guilty based on

media reports, she agreed to try to disregard media reports and base her decision

only on the evidence at trial. She also stated that she understood that Lundgren was

presumed innocent and that the burden was on the state to prove him guilty. We

note that Lundgren never challenged King for cause, possibly because King

13

SUPREME COURT OF OHIO

disliked the death penalty, and thus waived any challenge to King's participation.

See State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568, 572.

{¶ 35} Additionally, Lundgren asserts that the jury misbehaved during jury

selection. During voir dire, juror Bailey disclosed that she had heard comments

about the case while sitting in the jury room. After this report, the trial court

strongly reinstructed potential jurors "not to discuss this case among yourselves,"

but declined to reject all potential jurors in the group involved in the misconduct.

The court allowed questions to future jurors about possible jury room discussions

and particularly questioned seven potential jurors. Five of those seven denied any

discussions; one said only that "idle chatter" and "gossip" had taken place. Another

said all that occurred was that she told waiting jurors she was "very nervous." In

this case, the trial court thoroughly questioned prospective jurors, satisfied itself

that the jurors were fair and impartial, and did not abuse its discretion in declining

to replace all jurors. See State v. Webb (1994), 70 Ohio St.3d 325, 338, 638 N.E.2d

1023, 1035; State v. Montgomery (1991), 61 Ohio St.3d 410, 418, 575 N.E.2d 167,

174.

{¶ 36} Last, Lundgren complains that jurors Byers and King were members

of the same church and knew each other. Nonetheless, both jurors asserted that

their acquaintance would cause no difficulties, and each would make up his or her

own mind. No basis existed to exclude either juror. We, therefore, overrule

proposition of law five in its entirety.

{¶ 37} In proposition of law fourteen, Lundgren complains that an assistant

prosecutor denigrated the reasonable-doubt standard when she commented during

voir dire that the same standard applied in all criminal cases, including a "petty theft

shoplifting case." However, the prosecutor's statement was literally correct, and

the court's reasonable-doubt instructions negated any misconception by the jury.

We note that Lundgren's failure to object at trial waived the issue and we find no

plain error. State v. Williams, supra.

14

January Term, 1995

{¶ 38} Lundgren also complains that the prosecutor improperly vouched for

the credibility of prosecution witnesses during voir dire by mentioning that the

witnesses had entered into plea arrangements. Quite the contrary; the prosecutor

simply tried to ensure that jurors would not be biased against his witnesses. By his

comments, the prosecutor tried to "draw the sting" from the unfavorable fact that

three state witnesses were accomplices and had plea-bargained to minimize their

criminal exposure. See State v. Tyler, 50 Ohio St.3d at 34, 553 N.E.2d at 590. Such

comments, based on evidence later before the jury, constituted harmless error at

worst. See United States v. Arroyo-Angulo (C.A.2, 1978), 580 F.2d 1137, 1146-

1147; United States v. Isaacs (C.A.7, 1974), 493 F.2d 1124, 1165. Again, we note

that Lundgren did not object to the prosecutor's comments at trial and therefore

waived all but plain error, which we do not find to exist. State v. Williams, supra.

Proposition of law fourteen is without merit.

{¶ 39} Lundgren's propositions of law fifteen and sixteen both allege that

the state misused its peremptory challenges. "[P]rosecutors can exercise a

peremptory challenge for any reason, without inquiry, and without a court's

control," apart from excluding jurors based on race, State v. Seiber (1990), 56 Ohio

St.3d 4, 13, 564 N.E.2d 408, 419, see, also, Batson v. Kentucky (1986), 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed.2d 69; or sex, J.E.B. v. Alabama ex rel. T.B. (1994),

511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89. Lundgren does not argue that either

race or sex was the reason for these challenges.

{¶ 40} In proposition of law fifteen, Lundgren asserts the prosecutor

challenged prospective juror Way because he belonged to a Mormon church

between 1977 and 1979. However, the prosecutor never mentioned his reasons for

challenging juror Way, which may have had nothing to do with Way's religion.

Furthermore, Lundgren failed to object at trial and, therefore, waived this issue

absent plain error. State v. Seiber, 56 Ohio St.3d at 13, 564 N.E.2d at 419. In

proposition of law sixteen, Lundgren speculates that the prosecutor excluded

15

SUPREME COURT OF OHIO

prospective jurors Griffiths, Pekol, and Walsh because of their reservations about

the death penalty. Even if this is true, no impropriety resulted. State v. Cook

(1992), 65 Ohio St.3d 516, 518, 605 N.E.2d 70, 76; State v. Esparza (1988), 39

Ohio St.3d 8, 13, 529 N.E.2d 192, 198.

{¶ 41} In propositions of law six through nine, Lundgren challenges the

admission of several items of evidence. Although Lundgren correctly argues that

the state overtried this case by presenting unnecessary evidence, Lundgren failed

to preserve these issues at trial with objections. We, therefore, address these alleged

errors under the plain-error standard to determine if Lundgren's substantial rights

were affected. Crim.R. 52(B). Notice of plain error is taken only in exceptional

circumstances to prevent a miscarriage of justice. See State v. Long (1978), 53

Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus;

Crim.R. 52(B).

{¶ 42} We note that at the outset of the trial, Lundgren conceded that he had

shot each member of the Avery family. Moreover, the evidence supporting his guilt

was overwhelming. Although we find that the trial court erred in admitting some

of the evidence Lundgren challenges, the effect of such evidence was harmless

beyond a reasonable doubt, and its admission was certainly not plain error in view

of the other overwhelming evidence of Lundgren's guilt. Additionally, any impact

that this evidence may have had on Lundgren's sentence is minimized by this court's

independent assessment of the sentence. See State v. Landrum, 53 Ohio St.3d at

115, 559 N.E.2d at 721. As we find that none of the evidence Lundgren challenges

materially prejudiced his essential rights or contributed in any way to the jury's

findings of guilt, we reject all of these propositions of law.

{¶ 43} With proposition of law ten, Lundgren contends that the admission

of gruesome photographs, testimony, and a videotape prejudiced his right to a fair

trial and sentencing determination. Under Evid.R. 403 and 611(A), the admission

of photographs is left to a trial court's sound discretion. State v. Landrum, 53 Ohio

16

January Term, 1995

St.3d at 121, 559 N.E.2d at 726; State v. Maurer, 15 Ohio St.3d at 264, 15 OBR at

401, 473 N.E.2d at 791. In capital cases, nonrepetitive photographs, even if

gruesome, are admissible if the probative value of each photograph outweighs the

danger of material prejudice to an accused. Maurer, at paragraph seven of the

syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273.

{¶ 44} First, we address Lundgren's objections to the admission of sixteen

autopsy photographs. We note that two of the photographs were repetitive and,

therefore, admission of one of them was erroneous on that basis. Furthermore, after

reviewing the balance of the contested photographs, we find that the probative value

of the photos did not outweigh their prejudicial effect and, therefore, the trial court

abused its discretion in admitting the photos. However, even where a court abuses

its discretion in the admission of evidence, we must review whether the evidentiary

ruling affected a substantial right of the defendant. Evid.R. 103 and Crim.R. 52(A).

Due to Lundgren's concession that he shot the Averys and the other overwhelming

evidence demonstrating his guilt, we find no basis for concluding that Lundgren's

substantial rights were affected by the admission of this evidence. Moreover, any

prejudicial impact the evidence may have had on the sentencing phase of

Lundgren's trial is minimized by this court's independent assessment of the

sentence. See State v. Landrum, 53 Ohio St.3d at 115, 559 N.E.2d at 721. Thus,

we find the trial court's error was harmless beyond a reasonable doubt.

{¶ 45} Similarly, Lundgren argues that the court should have rejected

twenty-three color exhumation photographs, the testimony accompanying the

exhumation photographs, and a color videotape of the exhumation process. We

note that the photos and videotape show only an excavation, mud and debris. The

bodies, though sometimes discernible, are not visible in detail and do not render

this evidence gruesome. Still, we find that the probative value of this evidence did

not outweigh its prejudicial effect and, therefore, the trial court abused its discretion

in admitting the exhumation evidence. However, we also find that the admission

17

SUPREME COURT OF OHIO

of this evidence did not affect Lundgren's substantial rights and was harmless

beyond a reasonable doubt. Evid.R. 103 and Crim.R. 52(B). We reject proposition

of law ten in its entirety.

{¶ 46} In proposition of law twenty, Lundgren asserts that the trial court

erred in admitting into evidence items belonging to the Averys that were found

amid the barn debris. Specifically, Lundgren objected to the admission of two

diplomas, an engraved silver dish, a charm necklace, and a family photograph. He

argues that this evidence constituted improper victim character evidence. These

items were introduced to support the identity of the bodies buried in the barn.

Lundgren's concession that he shot the Avery family did not render inadmissible

this evidence of the identity of the victims. Although eyewitness testimony was

also offered to identify the victims, we find that the admission of this relevant

evidence did not prejudicially affect Lundgren's substantial rights. Thus, this

proposition of law lacks merit.

{¶ 47} With proposition of law nineteen, Lundgren argues the trial court

unfairly restricted the cross-examination of his accomplices concerning the full

benefits of their plea arrangements. In fact, the trial court allowed cross-

examination of Bluntschly, Olivarez, and Brand regarding their plea agreements,

including questions about the offenses originally charged, the offenses to which

each witness pled guilty, the conditions of the plea arrangements, and the maximum

sentences to be recommended under the plea bargains. The trial court, however,

did not allow counsel to mischaracterize the plea agreements or cross-examine the

accomplices on speculative issues such as their possible probation or parole.

{¶ 48} "The scope of cross-examination and the admissibility of evidence

during cross-examination are matters which rest in the sound discretion of the trial

judge." O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163, 17 O.O.3d 98, 100, 407

N.E.2d 490, 493; Evid.R. 611(A). Here, we determine that no abuse of discretion

occurred, since Lundgren had a full opportunity to demonstrate the bias or prejudice

18

January Term, 1995

of each of these accomplices. Moreover, we find that any possible error would be

harmless beyond a reasonable doubt in view of the overwhelming evidence

demonstrating Lundgren's guilt. Proposition of law nineteen, therefore, is not well

taken.

{¶ 49} In proposition of law eleven, Lundgren argues that several instances

of prosecutorial misconduct prejudiced his rights. "[T]he touchstone of due process

analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not

the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219, 102

S.Ct. 940, 947, 71 L.Ed.2d 78, 87. "[T]here can be no such thing as an error-free,

perfect trial, and *** the Constitution does not guarantee such a trial." United

States v. Hasting (1983), 461 U.S. 499, 508-509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d

96, 106.

{¶ 50} First, Lundgren argues that he was prejudiced by the prosecutor's

introduction of the Avery family's putrefied clothing and comments concerning the

smell of the clothing. While Evid.R. 403 would have prevented the prosecutor from

introducing the Averys' clothing, Lundgren failed to object to the introduction of

this evidence and the prosecutor's resulting comments. Thus, we must review this

argument under the plain-error standard. We notice plain error pursuant to Crim.R.

52(B) under exceptional circumstances and only to prevent a manifest miscarriage

of justice. State v. Johnson (1989), 46 Ohio St.3d 96, 102, 545 N.E.2d 636, 642.

Nothing in the record suggests that, but for the prosecutor's misconduct, the jury's

verdict would have been different. Id. We, therefore, find no plain error.

{¶ 51} Lundgren also complains about testimony elicited from witness

Olivarez that Lundgren forced female cult members to dance naked before him

while he masturbated. Although disgusting, this evidence showed Lundgren's

power over the cult members. Again, Lundgren did not object to the testimony and

we find no manifest miscarriage of justice. Moreover, that evidence would be

19

SUPREME COURT OF OHIO

relevant as to Lundgren's history and character during the sentencing phase. R.C.

2929.04(B).

{¶ 52} Additionally, Lundgren protests that the prosecutor compared him

to Jim and Tammy Bakker and Dr. Jekyll and Mr. Hyde. We find that the remarks

were inconsequential and note that Lundgren never objected to them. A prosecutor's

comments can be "colorful or creative." See State v. Brown (1988), 38 Ohio St.3d

305, 317, 528 N.E.2d 523, 538. We also do not find error in the prosecutor's urging

the jury to reach a "quick verdict" in view of the overwhelming evidence.

{¶ 53} Finally, Lundgren contends that the prosecutor violated his right to

a fair trial by eliciting the following testimony from witness Brand:

"Q: Are you aware of anything in the scriptures, based upon your years in

the RLDS Church, as to what should be done with a false prophet?

"***

"A: Yes, sir.

"Q: Where would we find that in the scriptures if we wanted to look for it,

Richard?

"A: Deuteronomy, Chapter 13.

"Q: And what does the scriptures command shall be done with a false

prophet, Richard Brand?

"A: It says, you put them to death."

{¶ 54} Lundgren also complains that the prosecutor quoted the above-

referenced passage from the Book of Deuteronomy during his guilt-phase closing

argument and implied that this passage affected the correct interpretation of this

case.

{¶ 55} As we summarily noted in proposition of law six, Lundgren failed to

object to the prosecutor's questioning of Brand concerning the Book of

Deuteronomy passage. Given the overwhelming evidence of Lundgren's guilt, we

do not find that Brand's answer, which amounted only to a statement concerning

20

January Term, 1995

the content of the passage, affected Lundgren's substantial rights. We, therefore,

also reject Lundgren's argument that the prosecutor's elicitation of this statement

constituted prosecutorial misconduct. We, however, agree with the court of appeals

that the prosecutor's quotation of this passage during his guilt phase closing

argument was improper. Still, Lundgren failed to object to this portion of the

prosecutor's argument, and we conclude that the argument was inconsequential to

the jury's findings of guilt. Furthermore, any effect this argument may have had on

Lundgren's sentencing can be cured by this court's independent reassessment of the

sentence. See State v. Landrum, 53 Ohio St.3d at 115, 559 N.E.2d at 721. In sum,

proposition of law eleven lacks merit.

{¶ 56} With proposition of law eighteen, Lundgren argues that the state's

evidence was insufficient to support the following death penalty specification: "The

offense was committed while the offender was committing, attempting to commit,

or fleeing immediately after committing or attempting to commit kidnapping ***,

and either the offender was the principal offender in the commission of the

aggravated murder or, if not the principal offender, committed the aggravated

murder with prior calculation and design." R.C. 2929.04(A)(7). Here, Lundgren

makes the novel argument that even if he were guilty of kidnapping under a

complicity theory because he directed and controlled the kidnapping of the Averys,

that would not be sufficient to support a guilty verdict as to this death penalty

specification. In other words, the offender must have personally committed the

kidnapping.

{¶ 57} Under R.C. 2923.03(F), a person found "guilty of complicity in the

commission of an offense *** shall be prosecuted and punished as if he were a

principal offender." Nothing in R.C. 2929.04(A)(7) limits application of that

specification only to the principal felony offender rather than one guilty of the same

felony by reason of complicity. Moreover, Lundgren's theory leads to absurd

results. Under his theory, cult members who participated as principals in the

21

SUPREME COURT OF OHIO

kidnapping, but as accomplices in the murder, would be subject to the death

penalty, while Lundgren, who not only conceived, organized, and directed the

kidnappings, but also fired the shots killing the Averys, would not. Even if

Lundgren's argument were correct, however, his death sentences would not be

affected because of his unquestioned guilt as to the other death penalty

specifications charged in the indictment. These specifications read, "the offense at

bar was part of a course of conduct involving the purposeful killing of or attempt

to kill two or more persons by the offender." R.C. 2929.04(A)(5). Thus, we find

proposition of law eighteen without merit.

{¶ 58} Lundgren's twenty-first proposition of law alleges that his

convictions and sentences are void because his indictment did not conclude with

the words "against the peace and dignity of the state of Ohio," as required by

Section 20, Article IV, Ohio Constitution. However, that requirement is not "so

essential as to nullify a conviction otherwise regularly obtained." Ruch v. State

(1924), 111 Ohio St. 580, 586, 146 N.E. 67, 69. Even so, those words do appear at

the end of the entire indictment.1 This court held long ago that the "peace and

dignity" language need not follow each count. Olendorf v. State (1901), 64 Ohio

St. 118, 59 N.E. 892. We also note that Lundgren failed to object to the indictment

before or at trial and, therefore, he waived this issue. See Crim.R.12(B)(2) and

33(E)(1); State v. Mills (1992), 62 Ohio St.3d 357, 363, 582 N.E.2d 972, 980. Thus,

we reject proposition of law twenty-one.

II

Sentencing Phase

{¶ 59} The following facts are relevant to our discussion of Lundgren's

propositions of law concerning the penalty phase of his trial. As a youth, Lundgren

was mostly a loner, but was active in sports and church activities. His father, a strict

1. Although not used after the murder counts, those words are used after each kidnapping offense,

which are the last counts in the indictment.

22

January Term, 1995

disciplinarian, enjoyed teasing and punishing him. Dr. Nancy Schmidtgoessling, a

psychologist who testified for the defense, determined that Lundgren suffered from

a mixed personality disorder with features of narcissism, paranoia, and antisocial

traits. However, Lundgren's IQ of 124 was above average, and he was not

schizophrenic or manic depressive. While growing up, Lundgren had little

emotional support, and, as an adult, he developed intense feelings of grandiosity

and a strong desire to control his environment. He could not maintain employment

and "stole from almost" every one of his employers. Although Lundgren became

obsessed with religion, at the time of the offenses, Lundgren did not have a mental

disease or defect.

{¶ 60} In an unsworn statement lasting almost five hours, Lundgren

explained his life-long search for spiritual truth and his visions. He quoted at length

from the Old Testament and the Book of Mormon. Lundgren denied ever planning

to take over the Kirtland Temple, but admitted killing the Averys. Lundgren

asserted that he abhorred the sin he saw in the Avery family and explained that God

commanded him to kill the Averys. He stated, "I cannot say that God was wrong.

I cannot say that I am sorry I did what God commanded me to do in the physical

act." Lundgren further explained, "I am a prophet of God. I am even more than a

prophet. I am not a false prophet; therefore, I am not worthy of the [death] penalty."

A rebuttal witness confirmed that Lundgren had planned an armed attack on the

temple. Other evidence established that the RLDS had fired Lundgren as a temple

guide because of theft allegations.

{¶ 61} In proposition of law twenty-four, Lundgren argues that the trial

court unfairly denied his motion to allow the jury to view the Kirtland Temple prior

to the sentencing phase. Under R.C. 2945.16, the court may order a view of any

"place at which a material fact occurred." Nonetheless, granting a jury view "lies

within the sound discretion of the trial court." Calloway v. Maxwell (1965), 2 Ohio

St.2d 128, 31 O.O.2d 196, 206 N.E.2d 912; State v. Zuern (1987), 32 Ohio St.3d

23

SUPREME COURT OF OHIO

56, 58, 512 N.E.2d 585, 588. In this case, neither the offense nor any "material fact"

occurred at the temple. Also, the jury drove by the temple, and Lundgren used

temple drawings to illustrate his unsworn statement. As we find no abuse of

discretion, this proposition of law is rejected.

{¶ 62} With propositions of law twelve and thirteen, Lundgren alleges that

he was prejudiced by inadmissible evidence and prosecutorial misconduct during

the penalty phase of the trial. First, in proposition of law twelve, Lundgren argues

that the prosecutor improperly presented rebuttal witnesses who testified

unfavorably as to his character. Specifically, defense psychologist

Schmidtgoessling testified that Lundgren "was let go from several jobs" because of

conflicts and disagreements with others. She and others also stated that the church

silenced and excommunicated Lundgren because his teachings were inconsistent

with doctrine. The state presented the following rebuttal witnesses to dispute the

impressions that might have been left by those statements. Bernard Wilson stated

that he fired Lundgren at a Missouri hospital thirteen years earlier because

Lundgren lied and could not be trusted. Lundgren was also involved in

"misappropriation of some hospital equipment." A church official agreed that

Lundgren and the church had doctrinal differences, but stated that the RLDS fired

Lundgren as a temple guide mostly because of bookshop fund shortages, decreased

contributions, and his solicitations from visitors. James Fincham, a coworker,

confirmed that Lundgren had solicited contributions. Additionally, Lundgren flatly

asserted in his unsworn statement, "I never had a plot to take over the temple."

Sprague, a former cult member, testified as a rebuttal witness, describing

Lundgren's military exercises and his plans to assault the temple and behead those

living in the vicinity. Prosecutors may "rebut mitigation evidence offered by the

defendant where the prosecutor has a good faith basis for believing that such

evidence is false." State v. DePew, 38 Ohio St.3d at 285, 528 N.E.2d at 554. Given

the total defense mitigation case, we do not find that the trial court abused its

24

January Term, 1995

discretion in allowing this rebuttal evidence. Id. at 285-286, 528 N.E.2d at 554.

Proposition of law twelve lacks merit.

{¶ 63} In proposition of law thirteen, Lundgren asserts that several

instances of prosecutorial misconduct denied him a fair sentencing determination.

First, Lundgren claims that prejudicial error occurred because the prosecutor wrote

a letter to Currie, an unindicted coconspirator, in which the prosecutor said he

would review Currie's unindicted status if Currie cooperated with the defense. We

agree that the conduct described in Lundgren's brief would be highly unethical. See

United States v. Matlock (C.A.6, 1974), 491 F.2d 504; Annotation (1979), 90

A.L.R.3d 1231. Nonetheless, Currie testified as a defense witness without apparent

reluctance or hesitation. We, therefore, find that Lundgren failed to show that he

suffered any prejudice.

{¶ 64} Lundgren also complains that the prosecutor misstated the

sentencing law and improperly defined mitigating factors as only those that

"excuse" an offense. As Lundgren did not object to these issues at trial, he waived

all but plain error. Here, we find that the prosecutor argued his case and did not

attempt to describe governing law. Moreover, since the trial court gave correct

sentencing instructions, any misstatements by the prosecutor could not have been

outcome-determinative. Additionally, the prosecutor correctly observed that the

jury need give little or no weight to evidence not found to be mitigating. State v.

Stumpf, 32 Ohio St.3d 95, 512 N.E.2d 598, at paragraph two of the syllabus. Thus,

we find no plain error exists.

{¶ 65} We also do not find that the prosecutor improperly cross-examined

cult members Johnson or Russell. With his mitigation evidence, Lundgren

attempted to prove the sincerity of his religious beliefs. The prosecutor could

question that sincerity by asking Johnson about Lundgren's plans to recruit

additional followers and engage in more violence. Similarly, the prosecutor

properly asked Russell to confirm that the RLDS faith never condoned lying,

25

SUPREME COURT OF OHIO

stealing, adultery, or murder. As for the prosecutor's remark that Lundgren "defiled

and blasphemed" Jesus Christ, we find that it constituted fair comment and did not

improperly appeal to the jury's emotions. See State v. Grant (1993), 67 Ohio St.3d

465, 482, 620 N.E.2d 50, 69.

{¶ 66} Finally, Lundgren contends that the prosecutor improperly

commented on his unsworn statement. Specifically, the prosecutor remarked about

Lundgren's knowledge of oaths. He reminded the jury of the following:

"[Lundgren] made Kevin Currie swear an oath and if he violated that oath, he was

to die. He had the naked dancing women swear an oath as they returned to their

husbands *** and he had their humiliated husbands swear an oath of allegiance to

him." We determine that these comments exceeded the proper limits as outlined in

State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542, paragraph two of the syllabus.

However, we additionally determine that this error was harmless. Id. at 285, 528

N.E.2d at 554. Lundgren's statements had no mitigating value, and the aggravating

circumstances in this case strongly outweighed any mitigating factors beyond a

reasonable doubt. Moreover, this court's independent reassessment of the sentence

can cure this error in the sentencing proceedings. See State v. Landrum, 53 Ohio

St.3d at 115, 559 N.E.2d at 721. We, therefore, reject proposition of law thirteen

in its entirety.

{¶ 67} With proposition of law twenty-five, Lundgren argues for reversal

of his sentence because of a juror's religious views. A newspaper quoted juror Dout

as stating after the verdict that Lundgren "deserved" death. Specifically, Dout was

quoted as saying, "Not only did he kill a family of five, but he put a black cloud

over an entire religion." We find that Lundgren's argument lacks merit. Under

Evid.R. 606, a juror is not a competent witness to impeach a verdict absent a

showing of outside influence, which is not alleged here. Moreover, evidence of a

juror's views as to why he reached a verdict, via newspaper hearsay, is doubly

26

January Term, 1995

inadmissible. Evid.R. 802. Finally, Dout's extraneous comment, even if true, does

not impeach the verdict. Proposition of law twenty-five is overruled.

{¶ 68} In proposition of law twenty-six, Lundgren argues that the trial

court's comments in its opinion and at the time of sentencing concerning Lundgren's

lack of remorse reflect improper sentencing considerations. However, we do not

find that the trial court converted Lundgren's lack of remorse into an aggravating

circumstance by noting its absence. Lundgren's lack of remorse reflects upon his

character. See R.C. 2929.04(B); State v. Loza (1994), 71 Ohio St.3d 61, 82, 641

N.E.2d 1082, 1104. Moreover, the trial court's decision accurately stated the

statutory aggravating circumstances of which Lundgren was convicted. See State

v. Sowell (1988), 39 Ohio St.3d 322, 328, 530 N.E.2d 1294, 1302. The trial court

reasonably and accurately interpreted Lundgren's unsworn statement as an attempt

to justify, not ask forgiveness for, the murders. By recognizing that fact, the court

simply assigned that evidence the weight it thought appropriate. The weight to be

given mitigation evidence is best left to the trial court. State v. Lott (1990), 51 Ohio

St.3d 160, 171, 555 N.E.2d 293, 305; State v. Steffen (1987), 31 Ohio St.3d 111, 31

OBR 273, 509 N.E.2d 383, paragraph two of the syllabus. Furthermore, this court's

independent assessment pursuant to R.C. 2929.05 eliminates the effect of any error.

See Clemons v. Mississippi (1990), 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725;

State v. Landrum, supra. Proposition of law twenty-six is rejected.

III

Jury Instructions

{¶ 69} In propositions of law twenty-two, twenty-three, and twenty-nine,

Lundgren alleges deficiencies in the trial court's jury instructions during both the

guilt and penalty phases of his trial. Again, Lundgren failed to object to most of the

deficiencies he alleges and, thus, waived all but plain error as to those issues.

Crim.R. 30(A); State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444

N.E.2d 1332, syllabus. We find that none of the alleged defects qualifies as

27

SUPREME COURT OF OHIO

outcome-determinative and, therefore, no plain error occurred. State v. Long, 53

Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. Moreover, any instructional defects

in the sentencing hearing can be cured by this court's independent reassessment of

the sentence. See State v. Landrum, 53 Ohio St.3d at 115, 559 N.E.2d at 721.

Finally, this court has previously rejected Lundgren's complaints in proposition of

law twenty-nine concerning the statutory reasonable-doubt instruction. State v. Van

Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604; State v. Nabozny (1978), 54

Ohio St.2d 195, 8 O.O.3d 181, 375 N.E.2d 784, death penalty vacated (1978), 439

U.S. 811, 99 S.Ct. 70, 58 L.Ed.2d 103. See, also, Victor v. Nebraska (1994), 511

U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.

{¶ 70} As argued in proposition of law twenty-three, Lundgren did object

during the penalty phase to the trial court's statement that Lundgren's unsworn

statement was not evidence. The court noted the following: "[Lundgren] made a

statement, but did not testify under oath ***. It is his right under Ohio law to do

so, and this statement ***, although not considered as evidence, may be considered

by you for whatever purpose you may assign." These comments demonstrate that

the court acknowledged the accused's right to make an unsworn statement,

explicitly recognized the jury's right to consider the statement, and did not

discourage the jury from doing so. These instructions were consistent with R.C.

2929.03(D), which provides for unsworn statements. See State v. DePew, 38 Ohio

St.3d at 285, 528 N.E.2d at 554. Given that Lundgren's statement was nearly five

hours long and both counsel referred to it in argument, we find that the members of

the jury clearly understood, as instructed, that they could consider the statement in

mitigation.

{¶ 71} Lundgren's last three propositions of law, thirty through thirty-two,

challenge Ohio's death penalty statutes with arguments that this court has

previously rejected. Thus, we summarily reject these propositions. State v.

Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.

28

January Term, 1995

IV

Ineffective Assistance of Counsel

{¶ 72} In proposition of law twenty-seven, Lundgren argues that his

counsel's actions and omissions deprived him of his constitutional right to the

effective assistance of counsel. Lundgren then refers to various other propositions

of law in which he raised plain-error issues.

{¶ 73} Reversal of a conviction or sentence based upon ineffective

assistance of counsel requires meeting the two-prong standard set out in Strickland

v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland

requires (1) a showing of deficient performance, "errors so serious that counsel was

not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"

and (2) a showing of prejudice, "errors *** so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064, 80

L.Ed.2d at 693.

{¶ 74} However, "the Constitution *** does not insure that defense counsel

will recognize and raise every conceivable constitutional claim." Engle v. Isaac

(1982), 456 U.S. 107, 134, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783, 804. Lundgren's

counsel need not have raised meritless issues, as previously discussed in

propositions of law four, twelve, fifteen, sixteen, seventeen, twenty-six, twenty-

eight, and twenty-nine.

{¶ 75} Furthermore, Lundgren's counsel vigorously and professionally

defended his client in an unpopular cause. As a part of that strenuous defense,

counsel could make tactical choices. Lundgren's trial strategy was to concede that

he shot the Averys, but argue he did not deserve the death penalty, given his sincere

religious motives. Under the facts, the decision not to object to issues raised in

propositions of law five, six, seven, eight, nine, eleven, thirteen, fourteen, twenty-

one, twenty-two, and twenty-three did not fall below "an objective standard of

reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

29

SUPREME COURT OF OHIO

Also, Lundgren fails to demonstrate prejudice, "a reasonable probability that, were

it not for counsel's errors, the result of the trial would have been different." State

v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the

syllabus. Accordingly, we reject proposition of law twenty-seven.

30

January Term, 1995

V

Independent Sentence Assessment

{¶ 76} After independent assessment pursuant to our duties under R.C.

2929.05, we determine that the evidence supports the aggravating circumstances

of which Lundgren was found guilty beyond a reasonable doubt. Now, we must

also weigh the facts and evidence in the record and consider Lundgren and his

offenses to determine whether the aggravating circumstances of which Lundgren

was convicted outweigh the mitigating factors in this case beyond a reasonable

doubt.

{¶ 77} First, we find that the nature and circumstances of these offenses do

not offer the slightest mitigating value. In contrast, we determine that features of

Lundgren's history, character, and background are entitled to some mitigating

weight. Lundgren's difficulties in early childhood adversely shaped his personality,

and his personality disorder, as attested to by Dr. Schmidtgoessling, adversely

affected his ability to cope throughout life. He has four children and served

honorably with the Navy during the Vietnam War. Additionally, we accord some

mitigating weight to Lundgren's life-long struggles to find meaning and redemption

through religion, the Bible, and the Book of Mormon. Unquestionably, he holds

his religious beliefs deeply and strongly, and those beliefs helped shape his life.

Overall, however, we find that the mitigating features of Lundgren's background,

history, and character are entitled to only modest weight.

{¶ 78} As for the statutory mitigating factors specified in R.C. 2929.04(B),

we find that Lundgren's lack of significant criminal convictions must be given some

mitigating weight under R.C. 2929.04(B)(5). However, the other factors listed in

R.C. 2929.04(B)(1) through (4), (6), and (7) do not appear to be applicable in this

case. None of the victims "induced or facilitated" the offenses and Lundgren did

not act under "duress, coercion, or strong provocation." Also, as Dr.

Schmidtgoessling testified, Lundgren's personality disorder does not qualify as a

31

SUPREME COURT OF OHIO

"mental disease or defect." See State v. Seiber, 56 Ohio St.3d at 8, 564 N.E.2d at

408. Finally, Lundgren, who was thirty-eight at the time of the offenses, was the

principal offender. Except for Lundgren's personality disorder and the other

matters already considered as to his history, character, and background, no "other

factors" appear relevant. Therefore, weighing the aggravating circumstances

against the foregoing mitigating factors, we conclude that the aggravating

circumstances as to each murder for which Lundgren was convicted outweigh the

mitigating factors presented by this case beyond a reasonable doubt.

{¶ 79} We also conclude that the death penalty imposed for each aggravated

murder is appropriate and proportionate when compared with similar capital cases.

This court has upheld the death penalty in cases involving "course of conduct"

murders. See, e.g., State v. Loza (1994), 71 Ohio St.3d 61, 641 N.E.2d 1082; State

v. Grant (1993), 67 Ohio St.3d 465, 620 N.E.2d 50; State v. Hawkins (1993), 66

Ohio St.3d 339, 612 N.E.2d 1227; State v. Lorraine (1993), 66 Ohio St.3d 414, 613

N.E.2d 212; and State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071,

including the cases cited at 62 Ohio St.3d at 294, 581 N.E.2d at 1084. This court

has also upheld the death penalty in cases involving murders occurring during the

commission of a kidnapping. See, e.g., State v. Scudder (1994), 71 Ohio St.3d 263,

643 N.E.2d 524; and State v. Fox (1994), 69 Ohio St.3d 183, 631 N.E.2d 124,

including the cases cited at 69 Ohio St.3d at 195, 631 N.E.2d at 134.

{¶ 80} Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., WRIGHT, F.E. SWEENEY and PFEIFER, JJ., concur.

DOUGLAS and RESNICK, JJ., concur in part and dissent in part.

__________________

ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.

32

January Term, 1995

{¶ 81} While I concur in the judgment reached by the majority affirming

appellant's convictions and sentence of death, I disagree with the majority's

discussion surrounding the admission of photographic evidence in this case.

{¶ 82} In proposition of law ten, appellant asserts that the admission of,

inter alia, autopsy and exhumation photographs prejudiced his right to a fair trial

and sentencing determination. The majority concludes that the probative value of

these photographs failed to outweigh their prejudicial effect, and thus their

admission constituted error, albeit harmless error. I disagree that any error

occurred.

{¶ 83} "Properly 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." State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d

768, paragraph seven of the syllabus. Given the broad discretion that is vested in a

trial court to determine the admissibility of evidence, an appellate court should not

disturb the decision of a trial court absent a showing that the trial court abused its

discretion and that the defendant has been materially prejudiced thereby. Id. at 265,

15 OBR at 401, 473 N.E.2d at 791.

{¶ 84} The prosecution introduced sixteen autopsy photographs in the case

sub judice. I find none of the photos to be repetitive, contrary to the majority's

conclusion. Two photographs depict entire bodies, but a plastic sheet that covers

the bodies negates their gruesome effect. In several others, mud and duct tape

obscure the skin of the victims and mute any gruesome effect. Two pictures simply

show a bullet hole in an area of the skin. Four photographs are definitely gruesome,

showing bullet holes in portions of the skull, but they have substantial probative

value, since they, like all of the other autopsy photos, portray the cause of death

33

SUPREME COURT OF OHIO

and the killer's purpose to cause death. State v. DePew (1988), 38 Ohio St.3d 275,

281, 528 N.E.2d 542, 550; Maurer, 15 Ohio St.3d at 265, 15 OBR at 401, 473

N.E.2d at 791.

{¶ 85} The prosecution also introduced twenty-three color exhumation

photographs, along with a videotape of the exhumation. With respect to the photos,

some show the pit into which the bodies were placed, while others depict various

stages of the removal of each victim from the ground. Several photographs show

the victims' bodies after removal and illustrate the way in which they were bound

and gagged. While the pictures are certainly disturbing, their overall gruesome

effect is limited by the dense mud which coats each victim's body. Furthermore, I

believe the exhumation photographs carry significant probative value, since they

convey an accurate picture of the manner in which the victims were bound and

buried.

{¶ 86} Similarly, I believe the probative value of the videotape depicting

the exhumation far outweighs any possible prejudicial impact. The tape shows only

the excavation process, mud and debris. There are no discernible bodies to render

the tape gruesome. DePew, 38 Ohio St.3d at 281, 528 N.E.2d at 550.

{¶ 87} For all of the foregoing reasons, I do not believe the trial court

abused its discretion in admitting the autopsy photographs, the exhumation

photographs or the exhumation videotape.

DOUGLAS, J., concurs in the foregoing opinion.

__________________

34

January Term, 1995

APPENDIX

{¶ 88} "Proposition of Law No. I[:] The trial court must grant a change of

venue when pre-trial publicity is so pervasive that jury prejudice can be presumed.

At the least, when pre-trial publicity creates the substantial possibility of juror

prejudice, the trial court must allow voir dire questioning which is adequate to

identify and eliminate biased jurors when there have been months of unrelenting,

adverse, saturation pre-trial publicity. The trial court's refusal either to grant a

change or to allow voir dire adequate to root out biased jurors denies the capital

defendant his Sixth, Eighth and Fourteenth Amendment rights to the trial by a fair

and impartial jury and to exercise effectively his peremptory challenges.

{¶ 89} "Proposition of Law No. II[:] A motion for a new trial should be

granted when the capital defendant demonstrates that his trial judge allowed a

change of venue for a co-defendant under virtually the same circumstances in which

the trial judge denied a change of venue in the defendant's case.

{¶ 90} "Proposition of Law No. III[:] When a small community has been

saturated with months of sensational pre-trial publicity about the defendant's capital

case, the trial judge must allow defense counsel to conduct a voir dire which is

adequate to identify jurors who could not fairly consider mitigating evidence.

Under such circumstances, the trial court's refusal to allow defense counsel to ask

prospective jurors whether they could consider specific statutory mitigating factors

relevant to the case violates the fair trial and sentencing guarantees in the Sixth,

Eighth and Fourteenth Amendments and denies the defendant his Due Process

Clause right to the effective exercise of his peremptory challenges.

{¶ 91} "Proposition of Law No. IV[:] When the trial judge conducts a death

qualification process which creates a predisposition toward the death sentence,

unfairly limits defense voir dire inquiry on mitigating factors and fails to adequately

probe juror misconduct in voir dire the capital defendant is denied his fundamental

35

SUPREME COURT OF OHIO

Sixth, Eighth and Fourteenth Amendment rights to trial on guilt and punishment by

an impartial panel of jurors.

{¶ 92} "Proposition of Law No. V[:] The trial court failed to ensure [that]

Mr. Lundgren was tried by a jury composed of fair and impartial jurors, thus

violating Mr. Lundgren's rights as guaranteed by the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10 and

16, Article I of the Ohio Constitution.

{¶ 93} "Proposition of Law No. VI[:] Opinion testimony at the guilt phase

of a capital case on the ultimate punishment to be imposed is improper and

irrelevant and violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution and Sections 5, 9, 10 and 16, Article I of the Ohio

Constitution.

{¶ 94} "Proposition of Law No. VII[:] Demonstrative testimony that is

confusing and does not aid the trier of fact should not be admitted at a capital trial.

To do so violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.

{¶ 95} "Proposition of Law No. VIII[:] Admission of irrelevant and highly

inflammatory evidence about the defendant's extensive weapons collection, when

that evidence relates only to a charge which was nollied [sic] before the capital trial

even began, has such a prejudicial impact on both phases of trial that it denies the

defendant his right to a fair trial on the issues of guilt and sentence as guaranteed

by the Due Process Clause of the Fourteenth Amendment.

{¶ 96} "Proposition of Law No. IX[:] When the minimal probative value of

gruesome and shocking evidence is substantially outweighed by the danger of

unfair prejudice, such evidence should not be introduced or admitted. Admission

of unfairly prejudicial evidence at the trial phase carries over to the penalty phase

of a capital trial and denies the defendant his right, guaranteed by the Due Process

Clause of the Fourteenth Amendment, to a fair trial and sentencing determination.

36

January Term, 1995

{¶ 97} "Proposition of Law No. X[:] The admission of inflammatory and

gruesome photographs, videotape and testimony into a capital trial violates the

Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution

and Sections 9, 10 and 16, Article I of the Ohio Constitution.

{¶ 98} "Proposition of Law No. XI[:] Pervasive prosecutorial misconduct

that occurs in the guilt phase of a capital trial violates the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and Sections 9, 10 and

16, Article I of the Ohio Constitution.

{¶ 99} "Proposition of Law No. XII[:] The prosecution may present penalty

phase rebuttal evidence on the capital defendant's criminal history only in those

instances where the defense has misrepresented the defendant's criminal history.

State v. DePew (1988), 38 Ohio St. 3d 275, 528 N.E.2d 542, paragraph four of the

syllabus, followed.

{¶ 100} "Proposition of Law No. XIII[:] Prosecutorial misstatements of

law, misrepresentation of the weighing process, elicitation of inflammatory

testimony, improper nullification of mitigating evidence, unwarranted comment on

the defendant's unsworn statement and appeals for the death sentence on religious

grounds operate, individually and cumulatively, to deny the capital defendant the

fair and reliable sentencing determination guaranteed by the Eighth Amendment

and the Due Process Clause of the Fourteenth Amendment.

{¶ 101} "Proposition of Law No. XIV[:] Prosecutorial misconduct occurred

during the voir dire stage of the appellant's capital trial in violation of the Fifth,

Sixth, Eighth and Fourteenth Amendments to the United States Constitution and

Sections 9, 10 and 16, Article I of the Ohio Constitution.

{¶ 102} "Proposition of Law No. XV[:] The discriminatory use of a

prosecutorial peremptory challenge based merely on religious affiliation violates

the First, Sixth and Fourteenth Amendments to the United States Constitution as

well as Article I, Sections 2, 5 and 10 of the Ohio Constitution.

37

SUPREME COURT OF OHIO

{¶ 103} "Proposition of Law No. XVI[:] The prosecutor's systematic use of

peremptory challenges to exclude all prospective jurors with some reservations

about the death penalty violated appellant Lundgren's right to equal protection and

a fair and impartial jury in a capital case under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and Sections 2, 5, 10 and

16, Article I of the Ohio Constitution.

{¶ 104} "Proposition of Law No. XVII[:] To commit jurors to a death

verdict during individual voir dire violates the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and Sections 5, 9 and 16, Article I

of the Ohio Constitution.

{¶ 105} "Proposition of Law No. XVIII[:] Insufficient evidence existed to

convict Mr. Lundgren of the R.C. 2929.04(A)(7) kidnapping specification attached

to each count of aggravated murder. His subsequent conviction of this specification

and its use to sentence him to death violated the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution and Sections 5, 9 and 16, Article I

of the Ohio Constitution.

{¶ 106} "Proposition of Law No. XIX[:] Under the right of confrontation

guaranteed by the Sixth Amendment, defense counsel cannot be precluded from

cross-examining accomplices on the full range of sentencing benefits they may

receive in exchange for their testimony on behalf of the state.

{¶ 107} "Proposition of Law No. XX[:] The admission into evidence at the

guilt phase of articles related to the victims, including personal belongings and a

family photograph, violates the Fifth, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio

Constitution.

{¶ 108} "Proposition of Law No. XXI[:] An indictment which fails to

conclude with the language 'against the peace and dignity of the State of Ohio' is

void and must be dismissed.

38

January Term, 1995

{¶ 109} "Proposition of Law No. XXII[:] It is unconstitutional to secure a

capital conviction when all of the independent elements of the crime are not

determined by a unanimous jury. Such a conviction violates the Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution, Sections 9, 10 and

16, Article I of the Ohio Constitution and R.C. 2901.05(D).

{¶ 110} "Proposition of Law No. XXIII[:] The trial court's instructions at

both the guilt and penalty phases of appellant's trial were constitutionally infirm.

The instructions violated the Fifth, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio

Constitution.

{¶ 111} "Proposition of Law No. XXIV[:] Jury views are not limited just to

the crime scene, but rather are appropriate at the places where material facts

occurred. R.C. 2945.16. When material facts occur at a place which is integral to

the penalty phase defense in a capital case, it is unfair and prejudicial for the trial

court to deny the defendant's motion for a jury view.

{¶ 112} "Proposition of Law No. XXV[:] The Due Process Clause is

violated when a juror sentencer impermissibly takes his own religious views into

account in the sentencing process.

{¶ 113} "Proposition of Law No. XXVI[:] The trial court's comments at

appellant's sentencing hearing and its opinion issued after the hearing contain

irrelevant and improper considerations for sentencing Mr. Lundgren to death. Such

considerations violated appellant Lundgren's constitutional rights as guaranteed by

the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.

{¶ 114} "Proposition of Law No. XXVII[:] Defense counsel's actions and

omissions at Mr. Lundgren's capital trial deprived him of the effective assistance of

counsel as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the

39

SUPREME COURT OF OHIO

United States Constitution and Sections 9, 10 and 16, Article I of the Ohio

Constitution.

{¶ 115} "Proposition of Law No. XXVIII[:] Venires drawn in a capital case

which overrepresent certain age groups in the county violate the fair cross-section

requirement of the Ohio and United States Constitutions.

{¶ 116} "Proposition of Law No. XXIX[:] The statutory definition of

reasonable doubt in Ohio Revised Code, Section 2901.05 reflects a clear and

convincing evidence standard which allows jurors to return a conviction and death

sentence based on a degree of proof below that required by the Due Process Clause

of the Fourteenth Amendment.

{¶ 117} "Proposition of Law No. XXX[:] Ohio's mandatory capital

sentencing scheme prevented the jury from deciding whether death was the

appropriate punishment in violation of the Eighth and Fourteenth Amendments to

the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio

Constitution.

{¶ 118} "Proposition of Law No. XXXI[:] The Fifth, Eighth and Fourteenth

Amendments to the United States Constitution, Sections 10 and 16, Article I of the

Ohio Constitution and Ohio Revised Code, Section 2929.05 guarantee a convicted

capital defendant a fair and impartial review of his death sentence. The statutorily

mandated proportionality process in Ohio does not comport with this constitutional

requirement and thus is fatally flawed.

{¶ 119} "Proposition of Law No. XXXII[:] The Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and

16, Article I of the Ohio Constitution establish the requirements for a valid death

penalty scheme. Ohio Revised Code, Sections 2903.01, 2929.02, 2929.021,

2929.022, 2929.023, 2929.03, 929.04 [sic] and 2929.05, Ohio's statutory provisions

governing the imposition of the death penalty, do not meet the prescribed

40

January Term, 1995

constitutional requirements and are unconstitutional, both on their face and as

applied."

__________________

41