State v. Scudder

             OPINIONS OF THE SUPREME COURT OF OHIO

              … SUBJECT TO FURTHER EDITING …

     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 Deborah J. Barrett, 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. Scudder, Appellant.
[Cite as State v. Scudder (1994),    Ohio St.3d     .]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
     (No. 92-2565 -- Submitted October 12, 1994 -- Decided
December 20, 1994.)
     Appeal from the Court of Appeals for Franklin County, No.
91AP-506.
     On the evening of February 6, 1989, Kevin P. Scudder,
appellant, met with two friends, Robert Muncy and Arnold James
Dempsey, Jr. to celebrate appellant's birthday. At midnight,
the men drove in appellant's Buick to the home of Muncy's
friend, fourteen-year old Tina Baisden. Appellant had promised
to purchase Tina a new outfit at an all-night department store,
and Tina was able to sneak out to join the trio.
     After cruising around Columbus, the group decided to visit
a friend in Circleville. On the way to Circleville, appellant
asked Tina to pretend to be his girlfriend. On February 7, at
approximately 2:30 a.m., appellant, Tina, Muncy and Dempsey
left Circleville in appellant's Buick to return to Columbus.
On the return trip, Tina suggested that she should be driven
home first. Muncy agreed, but appellant vehemently disagreed.
Appellant told Muncy, "I run this fucking boat, I pay for the
gas, I pay for the party, if you don't like it, I'll put a .44
slug in between your lungs." Appellant insisted that he
(appellant) would take Tina home last.
     In accordance with appellant's instructions, Dempsey, the
driver, drove Muncy home first. Dempsey, appellant and Tina
then drove to Dempsey's home. There, appellant left the car to
urinate in an alley behind Dempsey's house. At that time, Tina
told Dempsey that she was afraid of appellant. Dempsey knew
that appellant had a "Deerslayer" hunting knife in the glove
compartment of the Buick. Therefore, Dempsey gave Tina a
pocket knife for her protection. At approximately 3:15 a.m.,
appellant and Tina drove away from Dempsey's home in
appellant's Buick.
     On February 7, 1989, at approximately 4:10 a.m., Gary E.
Snyder, appellant's neighbor, saw appellant and appellant's
Buick in the parking lot of an apartment complex.
Approximately ten minutes later, Snyder saw appellant throw an
object into a trash dumpster. According to Snyder, appellant
then went to appellant's apartment and began screaming that he
had been shot. Appellant also said something like "I hurt a
little girl," or "I want my little girl." Another neighbor,
Bonnie Fletcher, saw appellant covered with blood. Fletcher
heard appellant say that "niggers" were chasing him and that
the alleged pursuers had killed a girl named Tina. An
emergency squad responded and transported appellant to Mt.
Caramel West Hospital.
     Dr. David Androw, a surgical resident physician , examined
appellant. Appellant was covered with blood -- more blood than
could be attributed to his wounds. Appellant had a four-inch
laceration on his right forearm, a small stab wound above his
left eye, and a small stab wound in his upper back.
Appellant's wounds were not life-threatening, his vital signs
were normal, and hospitalization was therefore unnecessary.
However, appellant claimed that he had been shot, and x-rays
revealed a bullet lodged in appellant's upper thorax. Androw
was confused, since all of appellant's wounds were stab
wounds. Appellant was rude and uncooperative with doctors and
police. He would not permit Androw to treat the wounds.
Appellant told a security guard at the hospital that he had
been attacked by two black men who had stabbed him and shot at
him. Eventually, appellant was asked to leave the hospital.
Later, Androw reviewed appellant's file from a previous
hospital stay and discovered that the bullet lodged in
appellant's body had been there about two years.
     Later that morning, on February 7, 1989, appellant went to
Grant Hospital, where he was admitted for treatment of his stab
wounds and the alleged gunshot wound. That afternoon,
appellant called police to report that he had been shot and
robbed. That evening, appellant talked with police on two
separate occasions. Appellant told police that he and Tina had
picked up two male hitchhikers after leaving Dempsey's home.
Appellant claimed that the hitchhikers had tried to rob him and
had forced him to drive to a secluded field off Groveport
Road. According to appellant, the robbers then shot and
stabbed him and stabbed Tina while she was seated in the back
seat of the Buick. Appellant stated that one of the robbers
removed Tina from the passenger's side of the vehicle while
appellant and the other robber exited the vehicle from the
driver's side. At that time, according to appellant, he
managed to escape in the Buick, leaving Tina in the field with
the assailants. On the night of February 7, police began
searching for Tina in the area where appellant claimed to have
left her. On February 8, 1989, the search continued.
     On February 9, a game warden accidentally discovered
Tina's frozen body in a secluded field approximately five miles
from where appellant claimed to have left her. The evidence at
the scene indicated that Tina had been killed where her body
was found. She had been stabbed or cut forty-six times. Her
pants had been pulled down to her ankles, and her panties had
been pulled down to midthigh. Bloody hand and finger smears
were found on her legs, inner thighs, and near the vaginal area.
     Tina's stab wounds were consistent with having been caused
by a knife similar to the one appellant possessed on the night
of the murder. Bloody impressions on Tina's clothing were of a
size and shape that indicated they had been made with a knife
similar to the "Deerslayer" knife. The murder weapon was never
recovered by police.
     Drops of blood other than Tina's were found on Tina's
face, rib cage and thighs. Expert analysis of photographs
taken at the crime scene revealed that the blood had dripped
onto Tina's mostly nude body as her killer stood directly over
her. DNA analysis revealed that it was highly probable the
drops of blood, and other blood samples taken from Tina's
clothing, had come from appellant.
     A broken stick found at the murder scene matched a wood
chip recovered from the emergency brake cable on the underside
of appellant's car. The wood chip fit the broken stick
"tongue-and-groove," proving that appellant's Buick had been at
the murder scene.
     Forensic experts found blood in various locations within
appellant's car, especially in the front seat. The bloodstains
were inconsistent with appellant's claim that Tina had been
stabbed in the back seat of the vehicle and dragged out the
passenger's side. Blood splatter on the Buick, including
bloodstains on the frame, wheel and brake drum, indicated that
Tina had been stabbed to death while lying on the ground near
the driver's side of the Buick. Additionally, Tina's bloody
fingerprints were found on the outside driver's window of the
Buick, as if Tina had gripped the glass from the interior of
the vehicle while the door was open. The "Deerslayer" knife
was missing from the glove box. Bloodstains on the glove box
indicated that that compartment had been opened by someone with
bloody hands.
     Appellant became a suspect in the murder on February 10,
1989, when police spoke with Dr. Androw and learned that the
bullet lodged in appellant's body was several years old. In
May 1989, appellant was indicted on two separate counts for the
aggravated murder of Tina. Count One charged appellant with
the purposeful killing of Tina during the commission of an
attempted rape. Count Two charged appellant with the
purposeful killing of Tina during the commission of a
kidnapping. Each of the two counts of aggravated murder
carried death penalty specifications alleging that the murder
had occurred during the commission of a kidnapping and
attempted rape. Appellant was also indicted on one count of
attempted rape and one count of kidnapping.
     Appellant was tried before a jury. The jury found
appellant guilty of all charges and specifications alleged in
the indictment. Following a mitigation hearing, the jury
recommended that appellant be sentenced to death for each of
the two counts of aggravated murder. The trial court merged
the two counts of aggravated murder and sentenced appellant to
death. For the remaining offenses, appellant was sentenced in
accordance with law. On appeal, the court of appeals affirmed
appellant's convictions and sentences, including the sentence
of death.
     The cause is now before this court on an appeal as of
right.

     Michael Miller, Franklin County Prosecuting Attorney,
Joyce S. Anderson and Katherine Press, Assistant Prosecuting
Attorneys, for appellee.
     David H. Bodiker, Ohio Public Defender, Pamela A. Conger
and Laurence E. Komp, Assistant Public Defenders, for appellant.

     Douglas, J.     Appellant presents a number of issues for
our consideration. (See Appendix, infra.) We have carefully
considered appellant's propositions of law and have reviewed
the death sentence for appropriateness and proportionality.
Upon review, and for the reasons that follow, we affirm the
judgment of the court of appeals and uphold the sentence of
death.
                               I
     R.C. 2929.05 requires this court to review capital cases
in a certain manner. However, the statute does not require
that we address and discuss, in opinion form, every proposition
of law raised by the parties. State v. Poindexter (1988), 

, 

; State v. Bonnell (1991),

, 

; and State v.
Hawkins (1993), 

, 

.
     Here, appellant presents a number of arguments which have
previously been addressed by this court, and which have been
resolved in a manner unfavorable to appellant. Many of the
matters raised by appellant merit no discussion given the
events at trial and the governing law. Moreover, a number of
appellant's arguments have been waived, since appellant failed
to preserve the alleged errors at either the trial court or
appellate level. Upon review of appellant's propositions of
law, we fail to detect any errors that would undermine our
confidence in the outcome of appellant's trial. We address in
detail only those issues that merit some discussion.
                               II
     Appellant's trial commenced on October 12, 1990. On
October 26, 1990, the prosecutor provided appellant with a
fingerprint analysis report concerning fingerprints that had
been lifted from appellant's Buick in February 1989. On
November 1, 1990, the state called Everett Justice, a
fingerprint expert, to testify for the prosecution. Appellant
objected to Justice's proposed testimony on the basis that the
state had not provided appellant with a fingerprint analysis
report before trial. Appellant requested that the trial court
preclude Justice from testifying regarding the fingerprint
evidence. The trial court overruled appellant's objection and
permitted Justice to testify. Appellant never requested a
continuance to prepare for Justice's testimony or to conduct an
independent fingerprint analysis.
     Additionally, appellant was not specifically informed
before trial that Dr. Robin Cotton, the state's DNA expert,
would be called to testify at trial concerning DNA frequency
estimates. Several months before trial, appellant had been
provided with the state's DNA report matching appellant's blood
to the blood found on the victim. However, a DNA frequency
report had not been prepared until after trial commenced. At
trial, Cotton testified that appellant's blood matched the
blood samples found on the victim's body and clothing. She
testified further that the statistical frequency with which
appellant's DNA banding pattern appears in the Caucasian and
African-American populations is one in 280,000 and one in 1.3
million, respectively. Appellant did not object to Cotton's
testimony concerning DNA frequency estimates until well after
Cotton had testified on direct and cross examination.
Appellant never requested a continuance with respect to the DNA
frequency statistics.
     Similarly, appellant was not informed before trial that
Robert Young, the state's expert in blood splatter and
bloodstain interpretation, would be called to testify for the
prosecution. Indeed, Young was not contacted to analyze the
photographic evidence taken at the crime scene until after
trial commenced. At trial, appellant sought to bar Young from
testifying because, among other reasons, the state had not
notified appellant of this expert prior to trial. The trial
court overruled appellant's objections. Following a lengthy
voir dire of the witness, appellant requested a
forty-eight-hour continuance to prepare for Young's trial
testimony. Appellant was granted a continuance in excess of
forty-eight hours. Thereafter, Young was permitted to testify
as an expert in blood splatter interpretation.
     In his first proposition of law, appellant claims that he
was deprived of a fair trial because the prosecutor violated
the rules of discovery by failing to notify appellant before
trial that the state would present expert witnesses concerning
blood splatter and fingerprint evidence, and expert testimony
concerning DNA frequency estimates. Appellant suggests that
the state engaged in "trial by ambush," and that the trial
court abused its discretion in failing to exclude the testimony
of the state's "surprise" witnesses. We reject appellant's
arguments for two reasons. First, appellant did not raise
these issues in the court of appeals. Thus, his arguments have
been waived. Second, appellant has failed to demonstrate that
the trial court abused its discretion by allowing the witnesses
to testify.
     Crim.R. 16(E)(3) provides for the regulation of discovery
in a criminal case and permits a trial court to exercise
discretion in determining the appropriate sanction for a
discovery violation. State v. Wiles (1991), 

, 

; State v. Parson (1983), 

, 6 OBR 485, 487, 

; and State v.
Edwards (1976), 

, 

, 

. Crim.R. 16(E)(3) provides that:
     "If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed
to comply with this rule or with an order issued pursuant to
this rule, the court may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the
party from introducing in evidence the material not disclosed,
or it may make such other order as it deems just under the
circumstances."
     We have held that where a prosecutor violates Crim.R. 16
by failing to provide the name of a witness, a trial court does
not abuse its discretion in allowing the witness to testify
where the record fails to disclose (1) a willful violation of
the rule, (2) that foreknowledge would have benefited the
accused in the preparation of his or her defense, or (3) that
the accused was unfairly prejudiced. State v. Heinish (1990),

, 

, syllabus. See, also,

, 

; and

, 6 OBR 485, 

,
syllabus. The same tripartite test applies for determining
whether a trial court has abused its discretion in admitting
other evidence that was not properly disclosed under Crim.R.
16. See, generally, 

     In the case at bar, we find that the trial court did not
abuse its discretion in allowing the testimony of the various
witnesses.
     First, we are convinced that the prosecutor did not
willfully violate Crim.R. 16. A review of the record reveals
that the state prepared its case late, and inadvertently failed
to have a fingerprint analysis completed before trial. Upon
discovery of that mistake, a fingerprint examiner was
immediately contacted by the prosecution. A fingerprint
analysis report was provided to the defense the day it was
written. The state's blood splatter evidence became available
under similar circumstances. Further, we find that the state's
failure to provide DNA frequency estimates before trial was
also due to an inadvertent mistake.
     Second, we do not believe that foreknowledge would have
aided appellant in the preparation of his defense. As to Dr.
Cotton's testimony, defense counsel knew months before trial
that DNA evidence would be forthcoming, and counsel must have
known that frequency statistics are an integral part of DNA
evidence. By April 1990, appellant had the prosecution's DNA
report (but not a frequency report) and his own DNA experts
were testing samples and presumably working on DNA frequency
statistics. Accordingly, we are not persuaded that appellant
was unduly surprised by Cotton's testimony or the contents of
the state's DNA frequency report. Nor are we convinced that
prior knowledge of the names of the fingerprint and blood
splatter experts would have aided appellant in preparation.
     Third, appellant has failed to show that he was unfairly
prejudiced by the admission of the testimony of the various
experts. Appellant requested a continuance to prepare for
Young's trial testimony concerning blood splatter analysis.
The continuance was granted and was of sufficient duration to
permit defense counsel to prepare for cross-examination.
Further, appellant never requested a continuance to prepare for
the DNA and fingerprint evidence even though a continuance
would have been sufficient to rectify any claimed harm. Under
these circumstances, the trial court could have properly
determined that appellant was prepared to go forward. See

, 

,

. Thus, no prejudice occurred. See

, 

.
     Contrary to appellant's contentions, we find that the
trial court did not abuse its discretion in allowing the
testimony of the various witnesses. Accordingly, we reject
appellant's first proposition of law.
                              III
     During discovery, appellant moved for the pretrial release
of all statements made by Muncy and Dempsey, apparently
claiming a right to the statements under Crim.R.
16(B)(1)(a)(i)-(iii)1 and (B)(1)(g)2. The trial court denied
appellant's requests.
     In his second proposition of law, appellant suggests that
he was entitled to the statements of Muncy and Dempsey prior to
trial. We disagree. Muncy and Dempsey were not
"co-defendants" and, thus, appellant was not entitled to
pretrial release of their statements under Crim.R.
16(B)(1)(a). See State v. Wickline (1990), 

, 

; and State v. Lane (1976), 

, 

, 

, paragraph two of the
syllabus. Nor was appellant entitled to pretrial release of
the statements under Crim.R. 16(B)(1)(g), which governs the
procedure for release of a witness's inconsistent prior written
or recorded statements after the witness has testified on
direct examination at trial.
     In his second and twenty-fourth propositions of law,
appellant also contends that Crim.R. 16(B)(1)(g) was violated
when the trial court denied him access to various summaries by
police detectives of their interviews with particular
witnesses. Specifically, following the direct examination of
several witnesses, the trial court reviewed the applicable
summaries and determined that the summaries did not constitute
prior "statements" made by the witnesses. Therefore, the trial
court found that appellant was not entitled to the summaries
under the provisions of Crim.R. 16(B)(1)(g). We find no
reversible error in this regard. We assume that the trial
court was perfectly capable of determining what constitutes a
witness's "statement" under Crim.R. 16(B)(1)(g). Further, the
summaries are not included in the record before this court. In
this regard, we note that appellant neither requested that the
summaries be included in the record, nor objected when the
summaries were not preserved in the record for purposes of
appellate review. Thus, appellant has failed to demonstrate
prejudice, and none will be presumed. See, generally, State v.
Jenkins (1984), 

, 15 OBR 311, 364-365,

.
     In his second proposition of law, appellant also suggests
that the prosecutor improperly attempted to exonerate Muncy and
Dempsey as alternative suspects in the murder, bolstered their
credibility at trial, and thereby deprived appellant of the
opportunity to effectively argue that Muncy and Dempsey were
responsible for the crimes. However, we find that the facts of
record, the evidence at trial, and even appellant's own initial
statements to police exonerated Muncy and Dempsey from any
involvement in these crimes. Contrary to appellant's
assertions, the record in this case does not implicate anyone
but appellant in the aggravated murder of Tina.
     Accordingly, we reject appellant's second and
twenty-fourth propositions of law.
                               IV
     At trial, Muncy was asked on cross-examination whether
police had instructed him prior to trial not to speak with
anyone from appellant's defense team. Muncy indicated that he
had been so instructed and, in fact, had refused to speak with
defense investigator Tami Wall. Later, on redirect
examination, Muncy testified as follows:
      "Q. Mr. Schneider [appellant's trial counsel] asked you
about Detective Morris telling you not to talk to anybody about
this.
      "A. Right.
      "Q. Do you remember what that was in relation to?
      "A. He said don't talk to the media, friends or family.
So I just -- to the best of my knowledge, I assumed that was
everyone, anybody who didn't have anything to do with the
detective bureau.
      "Q. Did he explain that that would -- that was because,
if you talked, it might hurt their investigation?
      "A. Correct.
      "Q. Now, when Tami Wall [the defense investigator] came
out, did she come out to your house? Where did she come and
talk to you?
      "A. To my house.
      "…
      "Q. Did she inform you she was working for Kevin Scudder?
      "A. Yes.
      "Q. Did she tell you that in fact because you were a
potential witness, you had no obligation at all to talk to her
if you chose not to?
      "A. Yes.
      "Q. You exercised that right, didn't you?
      "A. Yes."
      In his third proposition of law, appellant contends that
the state instructed Muncy not to speak with defense counsel
and thereby impeded appellant's ability to adequately prepare
for trial. Appellant did not raise this issue in the court of
appeals. Thus, the issue has been waived. Additionally, a
review of the record demonstrates that appellant's argument
lacks merit. Muncy was never specifically instructed not to
speak with the defense. Further, appellant's defense
investigator instructed Muncy that Muncy was not required to
speak with her. Muncy apparently chose to exercise that option
-- and he had every right to do so. See State v. Zeh (1987),

, 31 OBR 263, 

, paragraph one of
the syllabus.
      We find that the state did not impede appellant's access
to the witness. Accordingly, appellant's third proposition of
law is not well taken.
                                V
      At trial, appellant's wallet was admitted into evidence
without objection. The wallet contained numerous items that
had not been individually admitted into evidence. Items within
the wallet included a prison identification card, numerous
business cards, a handwritten letter or notation that someone
had heard that appellant was "going to get into trouble for
rape," and a document indicating that appellant had been on
parole.
      In his twenty-fifth proposition of law, appellant claims
that the contents of the wallet should have been removed before
it was submitted to the jury. Appellant suggests that he was
unfairly prejudiced because the contents of the wallet may have
been considered by the jury during deliberations. The court of
appeals rejected appellant's contentions, stating the following:
     "Defendant made no objection to admission of the wallet
into evidence even though it was obvious that the wallet
contained a large quantity of paper, most of which was
obviously harmless. The evidence against defendant was
overwhelming and, while the contents of the wallet should not
have been sent to the jury, that fact alone in all probability
did not sway the jury, even if the jury looked through the
contents and were aware of the harmful parts. This situation
does not lend itself to the plain error doctrine under Crim.R.
52(B). Plain error should only be recognized 'under
exceptional circumstances and only to prevent a manifest
miscarriage of justice.' State v. Long (1978), 

 [

, 

, paragraph three of the
syllabus]. No such circumstances exist here.
     "…
     "The failure to extract the contents of defendant's wallet
presents a situation similar to that of … [State v. Bradley
(1989), 

, 

, and State v. Spirko
(1991), 

, 

]. There was no
objection as in Bradley. The inclusion was not intentional and
was missed by both parties as in Spirko. There is no
indication that the jury actually reviewed the contents of the
wallet and the only witness who testified regarding the wallet
said only that it contained 'papers.' The inferences defendant
assumes that the jury made from the two or three inflammatory
items contained in the plethora of papers stored in his wallet
are purely speculative and, therefore, the inadvertent
inclusion did not constitute reversible error."
     We agree with the court of appeals' assessment of this
issue. Accordingly, we reject appellant's twenty-fifth
proposition of law.
                               VI
     In his thirty-first through thirty-third propositions of
law, appellant claims that he was deprived of the effective
assistance of counsel throughout the trial and appellate
proceedings. In considering appellant's arguments, we find
that appellant has failed to meet his burden of establishing
ineffective assistance under the standards set forth in
Strickland v. Washington (1984), 

, 

,

. Therefore, we reject appellant's thirty-first,
thirty-second and thirty-third propositions of law.
                              VII
     In his thirty-fifth proposition of law, appellant contends
that the evidence was not sufficient to establish his identity
as the perpetrator of the crimes. Appellant's argument is not
well taken.
     In the case at bar, appellant had a knife and desperately
wanted to be alone with Tina. Appellant and Tina left
Dempsey's home on February 7, 1989, at approximately 3:15 a.m.
Approximately one hour later, appellant was covered with blood
and was seen throwing an object (perhaps the murder weapon)
into a trash dumpster. The object made a noise as it hit the
dumpster. Appellant stood in a parking lot for approximately
ten minutes before hysterically claiming that he had been shot
and that someone was after him. During this period, appellant
had apparently concocted a story to explain Tina's
disappearance and to insulate himself from suspicion. That
story proved to be utterly false. The evidence, if accepted,
clearly established that Tina was attacked in the front seat of
appellant's Buick, dragged out the driver's side, forcibly
undressed, and stabbed to death while lying on the ground near
the driver's side of appellant's vehicle. DNA evidence linked
appellant to the killing. Evidence was also presented which,
if believed, established that Tina was killed with a knife
similar to the one appellant possessed on the night of the
murder. Further, a broken stick found at the murder scene
matched a wood chip recovered from the underbody of appellant's
vehicle.
     Upon a thorough review of the record, we find that the
direct and circumstantial evidence in this case, and the
reasonable inferences that can be drawn therefrom, was more
than sufficient to establish appellant's identity as the
perpetrator of the offenses.
     Appellant also contends that the state failed to produce
sufficient evidence to show that appellant purposely killed
Tina. However, the number and nature of Tina's stab wounds
clearly established appellant's purpose to kill. Further, the
jury could have reasonably concluded that appellant had the
mental capacity to form a purpose to kill Tina despite what
appellant may have had to drink or smoke on the night in
question.
     Additionally, appellant suggests that the evidence was
insufficient to support a finding of attempted rape. We
disagree. Appellant's sexual interest in Tina was apparent.
The evidence indicated that appellant desperately wanted to be
alone with Tina. Tina was found with her pants at her ankles
and her panties at midthigh. The evidence indicated that Tina
had been forcibly undressed. The killer had apparently raked
his fingers over Tina's stomach and downward toward the pubic
region. Bloody hand marks were found on Tina's thighs,
indicating that the killer had tried to force Tina's legs
apart. Appellant's blood was found on Tina's body and
clothing. A drop of appellant's blood had apparently dripped
onto Tina's face while she was still alive, and while appellant
was standing directly above her. This evidence was clearly
sufficient for a reasonable jury to conclude that appellant
attempted to rape Tina.
     Accordingly, we reject appellant's thirty-fifth
proposition of law.
                              VIII
     Having considered appellant's propositions of law, we must
now review the death sentence for appropriateness (also raised
in appellant's ninth proposition of law) and proportionality.
Appellant stabbed Tina to death during the commission of a
kidnapping and an attempted rape. Again, we find that the
aggravating circumstances for which appellant was found guilty
(both of which are set forth in R.C. 2929.04[A][7]) were proven
beyond a reasonable doubt.
     In mitigation, appellant offered some evidence on the
mitigating factor that he lacked a substantial capacity to
conform his conduct to the requirements of the law because of a
mental disease or defect. Dr. Henry Leland, a psychologist who
examined appellant, testified that appellant has an
"[o]rganically caused psychosis with an atypical or mixed
organic brain syndrome associated with opioid dependency and a
severe personality disorder." Leland concluded that appellant
had an organic brain disorder and severe personality disorder
exacerbated by years of alcohol and drug abuse. Leland
testified that appellant has difficulty making moral decisions
and cannot distinguish between fact and fantasy.
     However, on cross-examination, Leland admitted that he had
not reviewed all of appellant's institutional or medical
records and had not given appellant the most sophisticated
psychological diagnostic tests. Further, appellant was not
given a magnetic resonance imaging test, which would have been
helpful in determining whether appellant suffered from organic
brain damage. Additionally, Leland admitted that he does not
use the standard American Psychiatric Association Diagnostic
Manual in his diagnoses.
     We find that appellant failed to establish the existence
of the mitigating factor that he lacked a substantial capacity
to conform his conduct to the requirements of the law due to a
mental disease or defect. See R.C. 2929.04(B)(3). We find no
credible evidence that appellant suffered from organic brain
damage. However, we assign Leland's testimony concerning
appellant's history and background some weight in mitigation.
     During the mitigation hearing, Patricia A. Southward
testified that she had been a school psychologist while
appellant attended grade school. Southward testified that
while in grade school, appellant had suffered from a learning
disability and behavioral problems. Paula Richmond, a
certified teacher for learning-disabled children, testified
that appellant progressed remarkably in the fifth and sixth
grades while he received specialized, intensive instruction.
During this period, appellant learned to control his behavior
despite a learning disability. We assign this evidence little
or no weight in mitigation.
     Appellant also presented evidence that he had suffered a
broken leg and other injuries in 1982 while working as a
narcotics informant with the Circleville Police Department.
Thereafter, appellant continued to suffer from medical problems
associated with his injuries. In September 1988, appellant's
left leg was surgically amputated above the knee. Apparently,
the amputation was necessitated, in part, by appellant's
failure to follow the medical advice of his doctors. We assign
these matters little or no weight in mitigation.
     Appellant also made an unsworn statement in which he
expressed sympathy for Tina's family. In his unsworn
statement, appellant claimed that he had worked for several law
enforcement agencies throughout the state. Appellant claimed
that he has helped others cope with amputations. Appellant
requested that the jury spare his life. We assign these
matters very little weight in mitigation.
     Appellant claims that this court should also consider
"residual doubt" and "the participation of others in the
crime," as additional mitigating factors. However, we have no
doubt of appellant's guilt, and no credible evidence exists to
implicate anyone but appellant in the aggravated murder of
Tina. Thus, we find that these matters are entitled to no
weight in mitigation.
     Weighing the aggravating circumstances against the
evidence presented in mitigation, we find that the aggravating
circumstances outweigh the mitigating factors beyond a
reasonable doubt.
     As our final task, we have undertaken a comparison of the
sentence in this case to those in which we have previously
imposed the death penalty. We have upheld the death penalty in
cases involving kidnapping-murder (see, e.g., State v. Brewer
[1990], 

, 

; State v. Seiber
[1990], 

, 

; State v. Jells [1990],

, 

; and State v. Morales [1987],

, 

) and in cases involving
murder during the commission of an attempted rape (see, e.g.,
State v. Powell [1990], 

, 

).
Appellant's death sentence is neither excessive nor
disproportionate.
     Accordingly, the judgment of the court of appeals is
affirmed.
                                     Judgment affirmed.
     Moyer, C.J., A.W. Sweeney, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
     Wright, J., concurs.
FOOTNOTES:
1    Crim.R. 16(B)(1)(a) provides:
     "Upon motion of the defendant, the court shall order the
prosecuting attorney to permit the defendant to inspect and
copy or photograph any of the following which are available to,
or within the possession, custody, or control of the state, the
existence of which is known or by the exercise of due diligence
may become known to the prosecuting attorney:
     "(i) Relevant written or recorded statements made by the
defendant or co-defendant, or copies thereof;
     "(ii) Written summaries of any oral statement, or copies
thereof, made by the defendant or co-defendant to a prosecuting
attorney or any law enforcement officer;
     "(iii) Recorded testimony of the defendant or
co-defendant before a grand jury."
2    Crim.R. 16(B)(1)(g) provides that:
     "Upon completion of a witness' direct examination at
trial, the court on motion of the defendant shall conduct an in
camera inspection of the witness' written or recorded statement
with the defense attorney and prosecuting attorney present and
participating, to determine the existence of inconsistencies,
if any, between the testimony of such witness and the prior
statement.
     "If the court determines that inconsistencies exist, the
statement shall be given to the defense attorney for use in
cross-examination of the witness as to the inconsistencies.
     "If the court determines that inconsistencies do not exist
the statement shall not be given to the defense attorney and he
shall not be permitted to cross-examine or comment thereon.
     "Whenever the defense attorney is not given the entire
statement, it shall be preserved in the records of the court to
be made available to the appellate court in the event of an
appeal."

                            APPENDIX
     "Proposition of Law No. I[:] Appellant Scudder was denied
his right to a fair trial, effective assistance of counsel,
equal protection, and due process by the state's improper
introduction of surprise evidence in violation of the Fifth,
Sixth, Eighth, Ninth and Fourteenth Amendments to the United
States Constitution, Article I, Sections 2, 5, 9, 10 and 16 of
the Ohio Constitution and Criminal Rule 16.
     "Proposition of Law No. II[:] Appellant was denied the
right to his defense and to a reliable sentencing determination
when the state was permitted to withhold discovery but also
exonerate alternative suspects, in violation of the Sixth,
Eighth and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 10 and 16 of the Ohio
Constitution.
     "Proposition of Law No. III[:] The state's instruction to
at least one witness not to talk to the defense team violated
appellant Scudder's right to effectively prepare for his
capital trial in violation of the Fifth, Sixth, Eighth, Ninth
and Fourteenth Amendments of the United States Constitution,
Article I, Sections 1, 2, 5, 9, 10, 16 and 20 of the Ohio
Constitution and Criminal Rule 16(B)(1)(e).
     "Proposition of Law No. IV[:] The prosecutor's comments
on appellant's failure to call witnesses, to explain, or
otherwise rebut the state's case violated appellant's right to
remain silent and to be presumed innocent in violation of the
Fifth and Fourteenth Amendment[s] to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
     "Proposition of Law No. V[:] Appellant Scudder was
prejudiced by the admission of evidence obtained from illegal
searches and seizures in violation of the Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 9, 10, 14 and 16 of the
Ohio Constitution.
     "Proposition of Law No. VI[:] The state elicited the
testimony of Dr. Androw concerning a privileged x-ray
interfering with appellant Scudder's substantive right of a
patient-physician privilege in violation of the Fourth, Eighth
and Fourteenth Amendments to the United States Constitution,
Ohio Revised Code Section 2317.02(B) and Article I, Sections 2,
9 and 14 of the Ohio Constitution.
     "Proposition of Law No. VII[:] Appellant Scudder's
tape-recorded statement to Robert Muncy was involuntary and
inadmissible under the Fifth, Sixth and Fourteenth Amendments
to the United States Constitution and Article I, Sections 9 and
16 of the Ohio Constitution.
     "Proposition of Law No. VIII[:] An appellate court not
having the entire record cannot adequately review the case
pursuant to Ohio Rev. Code Ann. Section 2929.05 and 2929.03(G)
and the capital defendant is deprived of his rights to
effective assistance of counsel, equal protection, due process
of law and meaningful appellate review under the Eighth and
Fourteenth Amendments of the United States Constitution and
Article I, Sections 2, 10 and 16 of the Ohio Constitution.
     "Proposition of Law No. IX[:] The death sentence imposed
on appellant Scudder is unreliable, inappropriate and violates
the Eighth and Fourteenth Amendments to the United States
Constitution, Article I, Sections 9 and 16 of the Ohio
Constitution and O.R.C. Section 2929.05.
     "Proposition of Law No. X[:] A capital defendant's death
sentence is unreliable and inappropriate when he is denied the
procedural safeguard of a meaningful, independent review by the
trial court and the appellate court under the Fifth, Eighth and
Fourteenth Amendments to the United States Constitution,
Article I, Sections 9 and 16 of the Ohio Constitution, O.R.C.
Sections 2929.03(F) and 2929.05.
     "Proposition of Law No. XI[:] The jury's and trial
court's consideration of duplicative murder counts and
aggravating circumstances tipped the weighing process against
appellant Scudder, destroyed the reliability of the sentencing
process and resulted in the arbitrary and capricious imposition
of the death sentence in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and Article I,
Sections 9 and 16 of the Ohio Constitution.
     "Proposition of Law No. XII[:] Misconduct by the
government's attorney during voir dire in appellant Scudder's
trial, deprived him of his rights to due process, a fair trial
and a fair and reliable determination of his guilt and sentence
as guaranteed by the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
     "Proposition of Law No. XIII[:] Appellant Scudder was
denied his rights to a fair trial and due process by
prosecutorial misconduct during the guilt phase of his trial in
violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I,
Sections 2, 9, 10 and 16 of the Ohio Constitution.
     "Proposition of Law No. XIV[:] Substantial prosecutorial
misconduct at the penalty phase violated appellant's rights to
due process, and a fair and reliable sentence in violation of
the Fifth, Eighth and Fourteenth Amendments to the United
States Constitution and Article I, Sections 9 and 16 of the
Ohio Constitution.
     "Proposition of Law No. XV[:] Appellant's jury was
precluded from considering relevant, unrebutted mitigation
evidence due to court-sanctioned prosecutorial misconduct in
the form of attacks on the key mitigation witness, in violation
of the Sixth, Eighth and Fourteenth Amendment[s] to the United
States [Constitution] and Article I, Sections 9 and 10 of the
Ohio Constitution.
     "Proposition of Law No. XVI[:] Prosecutorial evidence and
argument on irrelevant and unproven other acts violates Ohio R.
Evid. 404(B), O.R.C. Section 2945.59 and denies the capital
defendant his rights to due process of law, a fair trial and
trial by an impartial jury as guaranteed by the Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and
Article I, Sections 5, 9, 10, 16 of the Ohio Constitution.
     "Proposition of Law No. XVII[:] The admission of hearsay
evidence violated appellant's right to confront witnesses and
to due process under the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 10 and 16 of
the Ohio Constitution.
     "Proposition of Law No. XVIII[:] The trial court's
numerous errors and omissions regarding the penalty phase jury
instructions violated appellant Scudder's rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution and Article I, Section[s] 9, 10 and 16 of
the Ohio Constitution.
     "Proposition of Law No. XIX[:] The trial court erred to
the prejudice of appellant Scudder by giving erroneous
instructions of law at the culpability phase of his capital
trial.
     "Proposition of Law No. XX[:] The statements and service
of biased jurors on the jury in Mr. Scudder's case violated his
right to trial by a fair and impartial jury and to due process
as guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution, Ohio Rev. Code Ann. Section
[2]945.25(B), (O) (Anderson 1988) and Ohio R. Crim. P.
24(B)(9), (14) and Article I, Sections 10 and 16 of the Ohio
Constitution.
     "Proposition of Law No. XXI[:] The Eighth and Fourteenth
Amendments to the United States Constitution; Article I,
Sections 9 and 16 of the Ohio Constitution and Section
2945.25(C) of the Ohio Revised Code guarantee an accused a fair
trial and impartial jury. The trial court's exclusion of
potential jurors Vierling, Winters and Barnum denied appellant
these constitutional guarantees.
     "Proposition of Law No. XXII[:] The trial court erred in
denying Mr. Scudder's motion for mistrial based upon
contamination of the jury panel during voir dire in violation
of the Sixth, Eighth and Fourteenth Amendments to the United
States Constitution, Article I, Sections 5 and 16 of the Ohio
Constitution.
     "Proposition of Law No. XXIII[:] The trial court
erroneously excluded a statement made by Kevin Scudder to the
Columbus police concerning the crime in violation of the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 9 and 16 of the Ohio
Constitution.
     "Proposition of Law No. XXIV[:] The trial court
improperly refused to allow defense counsel to inspect prior
out-of-court statements made by the state's witnesses to police
officers and failed to preserve the statements at issue for
purposes of appeal yet made available to the state defense
informational summaries and an expert's file in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution, Article I, Section 10 of the Ohio
Constitution; and Ohio Criminal Rule 16(B)(1)(g).
     "Proposition of Law No. XXV[:] Appellant Scudder has been
unfairly prejudiced for the reason that materials not admitted
into evidence were submitted to the jury that revealed that
appellant was a prior convict and may have been involved in a
rape in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I,
Sections 2, 9, 10 and 16 and Article II, Section 26 of the Ohio
Constitution.
     "Proposition of Law No. XXVI[:] The trial court erred by
allowing the admission of a model knife into evidence in
derogation of Mr. Scudder's rights under the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution and
Article I, Sections 2, 9, 10 and 16 and Article II, Section 26
of the Ohio Constitution.
     "Proposition of Law No. XXVII[:] It is a violation of the
right to due process, fair trial under the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution,
Article I, Section 16 of the Ohio Constitution, and Rule 401,
402, 403 and 702 of the Ohio Rules of Evidence to admit DNA
evidence.
     "Proposition of Law No. XXVIII[:] The trial court erred
in allowing opinion evidence on the subject of 'blood spatter
analysis' by a state's witness when the witness' analysis fell
below the standards of the profession thereby violating Kevin
Scudder's Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments
rights of [sic] the United States Constitution and Article I,
Sections 1, 10 and 16 of the Ohio Constitutions [sic].
     "Proposition of Law No. XXIX[:] The trial court violated
appellant's fundamental right to the assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Ohio
Constitution when it failed to make sufficient inquiry into the
reasons for appellant's request for substitute counsel and to
determine whether they were arbitrary or legitimate.
     "Proposition of Law No. XXX[:] The Fifth, Eighth and
Fourteenth Amendments to the United States Constitution,
Article I, Sections 10 and 16 of the Ohio Constitution and Ohio
Rev. Code Ann. Section 2929.05 (Anderson 1988) guarantee a
convicted capital defendant a meaningful proportionality review
of his death sentence with similar cases.
     "Proposition of Law No. XXXI[:] The ineffective
assistance of counsel provided to appellant Scudder violated
his rights to a fair and impartial jury trial and sentence, as
guaranteed by the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and Article I,
Sections 5, 9, 10 and 16 of the Ohio Constitution.
     "Proposition of Law No. XXXII[:] Appellant Scudder was
denied the effective assistance of appellate counsel in
violation of the Sixth, Eighth and Fourteenth Amendments to the
United States Constitution, and Article I, Sections 10 and 16
of the Ohio Constitution.
     "Proposition of Law No. XXXIII[:] The ineffective
assistance of counsel provided to appellant Scudder during the
mitigation phase violated his rights to a fair and impartial
jury trial and sentence, as guaranteed by the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, Sections 5, 9, 10 and 16 of the
Ohio Constitution.
     "Proposition of Law No. XXXIV[:] The state denied
appellant Scudder his right to a speedy trial in violation of
the Sixth and Fourteenth Amendments to the United States
Constitution, Article I, Section 10 of the Ohio Constitution
and Ohio Revised Code Section 2945.401.
     "Proposition of Law No. XXXV[:] The state failed to
introduce sufficient evidence to prove appellant's guilt beyond
a reasonable doubt. Appellant Scudder was deprived of his
right to due process of law under the state and federal
constitutions.
     "Proposition of Law No. XXXVI[:] The trial court violated
Mr. Scudder's rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution and
Article I, Sections 2 and 10 of the Ohio Constitution, when it
improperly denied appellant's motion that would permit him to
ex parte request funding for experts and investigators.
     "Proposition of Law No. XXXVII[:] Admission at the guilt
phase of irrelevant evidence concerning the victim to arouse
the sympathy of the jury violated appellant's rights under the
Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, Article I, Sections 5 and 10 of the Ohio
Constitution.
     "Proposition of Law No. XXXVIII[:] Kevin Scudder was
denied his Sixth, Eighth and Fourteenth Amendment rights to a
fair trial, due process and a reliable determination of his
guilt and sentence when gruesome, prejudicial and cumulative
photographs were admitted into evidence even though their
prejudicial effect outweighed their probative value.
     "Proposition of Law No. XXXIX[:] The prosecutor's and
defense counsel's comments and the court's instructions to the
jury that the sentencing verdict was only a 'recommendation'
diminished the jury's responsibility for its verdict and
undermined the reliability of the death verdict in violation of
the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 2, 5, 9,
10 and 16 of the Ohio Constitution.
     "Proposition of Law No. XL[:] The Fifth, Eighth and
Fourteenth Amendments to the United States Constitution,
Article I, Sections 10 and 16 of the Ohio Constitution and Ohio
Rev. Code Ann. Section 2929.05 guarantee a convicted capital
defendant a fair and impartial review of his death sentence.
The statutorily mandated proportionality process in Ohio is
fatally flawed thereby denying Kevin Scudder the above rights.
     "Proposition of Law No. XLI[:] A death sentence based on
commission of a felony murder, when the aggravating
circumstance merely duplicates an element of felony murder,
violates the Eighth and Fourteenth Amendments of the United
States Constitution and Article I, Sections 2, 9 and 16 of the
Ohio Constitution.
     "Proposition of Law No. XLII[:] The Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and
Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution
establish the requirements for a valid death penalty scheme.
Ohio's statutory provisions governing the imposition of the
death penalty, contained in Ohio Rev. Code Ann. Sections
2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03,
2929.04 and 2929.05, (Anderson 1988), do not meet the
prescribed requirements and thus are unconstitutional, both on
their face and as applied to appellant Scudder.
     "Proposition of Law No. XLIII[:] Appellant Scudder was
prejudiced by the state's failure to record the grand jury
proceedings thereby violating the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, and Article I,
Sections 2 and 10 of the Ohio Constitution.
     "Proposition of Law No. XLIV[:] The court of appeals
denied Mr. Scudder his constitutional right to appellate review
when Judge Deshler failed to recuse himself from the appellate
panel in violation of his [sic] Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, Article I,
Sections 2, 9 and 10 of the Ohio Constitution, Canon 3C(1) of
Ohio's Code of Judicial Conduct and Canon 3C of the Judicial
Canons.
     "Proposition of Law No. XLV[:] A capital defendant's
constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the federal constitution and Article
I, Sections 2, 9, 10 and 16 of the Ohio Constitution are
violated when the trial court refuses to instruct the jury that
it can consider mercy in its sentencing decision.
     "Proposition of Law No. XLVI[:] The Fourteenth Amendment
to the United States Constitution; Article I, Section 16 of the
Ohio Constitution; and Ohio Rev. Code Ann. Section 2929.05
(Anderson 1988) require that the trial court keep a complete
and full transcript of all proceedings occurring in the trial
court. The trial court's failure to maintain such a record
during the trial denied appellant his rights as guaranteed by
the Ohio Revised Code, the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and Article I,
Sections 2, 9, 10 and 16 of the Ohio Constitution.
     "Proposition of Law No. XLVII[:] The trial court erred
when it overruled Mr. Scudder's motion for new trial, in
violation of the Sixth, Eighth and Fourteenth Amendments to the
United States Constitution, Article I, Sections 9, 10 and 16 of
the Ohio Constitution, and Ohio Criminal Rule 33(B)."
     Wright, J., concurring.    In concur in all portions of
the majority opinion save the discussion under Part III. I
believe that the appellant's propositions of law discussed in
that Part are valid, but constitute harmless error beyond a
reasonable doubt.