[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
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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
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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
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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.
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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
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{¶ 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
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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.
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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
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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
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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 abovereferenced 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
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"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.
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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
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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.
__________________
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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
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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.
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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.
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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.
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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
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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
