State v. Gumm

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. GUMM, APPELLANT.
                       [Cite as State v. Gumm, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when—Evidence—
        What the prosecutor may comment upon at penalty stage of capital trial.
Subject to applicable Rules of Evidence, and pursuant to R.C. 2929.03(D)(1) and
        (2), counsel for the state at the penalty stage of a capital trial may introduce
        and comment upon (1) any evidence raised at trial that is relevant to the
        aggravating circumstances specified in the indictment of which the
        defendant was found guilty, (2) any other testimony or evidence relevant to
        the nature and circumstances of the aggravating circumstances specified in
        the indictment of which the defendant was found guilty, (3) evidence
        rebutting the existence of any statutorily defined or other mitigating factors
        first asserted by the defendant, (4) the presentence investigation report,
        where one is requested by the defendant, and (5) the mental examination
        report, where one is requested by the defendant. Further, counsel for the
        state may comment upon the defendant's unsworn statement, if any. (R.C.
        2929.03[D], construed; State v. DePew [1988], 

, 

, affirmed and followed.)
                                  __________________
        (No. 94-756—Submitted June 7, 1995—Decided August 30, 1995.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-920907.
                                  __________________
        {¶ 1} Early on the morning of May 12, 1992, the bludgeoned body of ten-year-old Aaron Raines was found by police in the basement of an abandoned
building in the lower Price Hill section of Cincinnati. Defendant-appellant, Darryl
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"Junior" Gumm, was subsequently convicted of the crimes of aggravated murder,
attempted rape and kidnapping of Aaron Raines, and sentenced to death.
          {¶ 2} At 11:00 p.m. on May 11, 1992, Aaron Raines's family reported
Aaron as missing to Cincinnati police. An extensive neighborhood search took
place, culminating in the discovery of Aaron's body in the basement of an
abandoned building adjacent to a neighborhood park where Aaron had previously
been playing.
          {¶ 3} Several weeks later Betty Gumm, a friend of the Raines family and
defendant's sister through adoption, learned that her brother Darryl had been in the
neighborhood on the day of Aaron's murder. Betty knew that her brother was
acquainted with Aaron, and was familiar with the abandoned buildings where
Aaron's body was found, having stripped copper out of them many times at night.
Betty called the local "Crime Stoppers" number to report her information.
          {¶ 4} On July 24, 1992, Cincinnati police interviewed appellant at his job
site, a tobacco farm in Brooksville, Kentucky. At that time, Gumm told police he
hadn't been in Cincinnati since March 1992, and indicated his desire to cooperate
with police. On July 27 Cincinnati police returned to Brooksville to talk to Gumm
again, and Gumm accompanied them back to Cincinnati, ostensibly to clear himself
of any wrongdoing. After extensive questioning in which he changed his statement
several times, Gumm eventually confessed involvement in the murder of Aaron
Raines.
          {¶ 5} Gumm's statement disclosed that he and one Michael Bies, a
Kentucky acquaintance, were driven to Cincinnati on May 11 by acquaintances and
dropped off around noon. Gumm told police that he and Bies went to a bar to drink
beer, and later went to the Price Hill park adjacent to two abandoned buildings,
where they encountered Aaron. Gumm and Bies were observed at approximately
7:00 p.m. sitting on a bench in the park in which Aaron last played. Gumm admitted
that he lured Aaron into the abandoned buildings for sexual purposes by telling him




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he would be paid $10 to help strip copper from the buildings. According to Gumm,
after the three entered the first building and crossed over a walkway into the second
building, Bies asked Aaron to perform oral sex for money. When Aaron refused,
Gumm claimed that Bies punched Aaron several times, picked him up and carried
him downstairs to the basement. According to Gumm, Bies there hit Aaron several
additional times, once on the head with a "two by four." After that, Gumm stated
that he and Bies fled the scene. Gumm claims that he himself did not hit Aaron at
all, but conceded that he might have stepped on his body as he was attempting to
flee from the basement.
       {¶ 6} When police found Aaron's body at the basement crime scene, they
noticed several objects around the body that contained blood and hairs consistent
with the victim's. These objects included a chunk of concrete, a pipe, pieces of
wood, and twine found wrapped around Aaron's neck.
       {¶ 7} Amy Martin, M.D., a former deputy coroner of Hamilton County,
examined Aaron's body at the crime scene and conducted the post-mortem exam at
the coroner's office.     Dr. Martin testified that Aaron sustained twenty-one
lacerations to the back of his head, representing twenty-one separate blows from an
object, and that some of these wounds manifested lines that matched the threading
on the pipe found next to the body. Five of Aaron's ribs were broken, which Dr.
Martin found unusual for a boy of his age, since such bones are usually flexible.
Dr. Martin opined that "something like a kicking or stomping" would be the type
of force necessary to break a young boy's ribs. Dr. Martin further testified that the
left side of Aaron's face was completely crushed in a manner consistent with a blow
from the chunk of concrete found lying next to the body. Several "chevron pattern"
bruises consistent with the tread of a Nike gym shoe were found on several areas
of Aaron's body. Gumm had told police that he thought Bies had been wearing
L.A. Gear gym shoes, and acknowledged that he had thrown his own shoes away.




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       {¶ 8} Dr. Martin testified that Aaron also sustained a broken jaw, chipped
teeth and cut lips, a deep laceration and bone chip on the underside of his jaw,
compression wounds and hemorrhages in the eyes probably caused by compression
of twine wrapped around his neck, and pattern bruises typical of injuries caused by
being struck with a stick or rod.
       {¶ 9} Dr. Martin found no evidence of any defensive wounds on Aaron's
body, and opined that the absence of defensive wounds was consistent with Aaron
having been held or restrained while his injuries were being inflicted. Dr. Martin
determined that the cause of death was a combination of blunt impacts to the head,
chest and abdomen, as well as blunt injury to the neck.
       {¶ 10} Gumm was indicted by the Hamilton County Grand Jury on one
count of aggravated murder with death penalty specifications based on violations
of R.C. 2929.04(A)(3) (offense committed to escape detection for attempted rape
or kidnapping) and R.C. 2929.04(A)(7)       (felony-murder based on underlying
felonies of kidnapping and attempted rape). Gumm was also indicted on separate
counts of attempted rape (R.C. 2923.02) and kidnapping (R.C. 2905.01).      At the
conclusion of the guilt phase, the jury found Gumm guilty on all counts and
specifications.
       {¶ 11} At the mitigation phase of the trial Gumm called one witness, his
sister Karen Ridenour. He presented no statement himself. The jury found the
aggravating circumstances outweighed the mitigating factors beyond a reasonable
doubt and recommended that Gumm receive the death penalty. The trial court
merged the specifications and imposed the death sentence for the aggravated
murder count. The court further imposed consecutive terms of imprisonment upon
Gumm's convictions for attempted rape and kidnapping.
       {¶ 12} Upon appeal, the First District Court of Appeals affirmed the
convictions and sentence of death.
                               __________________




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                                January Term, 1995




       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellee.
       H. Fred Hoefle and David J. Boyd, for appellant.
                               __________________
       MOYER, C.J.
       {¶ 13} Appellant has raised twenty-two propositions of law. We have
reviewed each and, for the reasons stated below, we find that none justifies reversal
of appellant's conviction of the crimes of aggravated murder, kidnapping and
attempted rape of ten-year-old Aaron Raines. In addition, we have fulfilled our
responsibilities to independently review the record, weigh the mitigating factors
against the aggravating circumstances, and examine the appropriateness and
proportionality of a sentence of death in this case. Upon full review of the record
we affirm appellant's convictions and death sentence.
                                          I
 Allegation of Improper Consideration of "Nature and Circumstances" Evidence
       {¶ 14} Gumm argues that his death sentence should be reversed based on
prosecutorial misconduct.      Specifically Gumm complains of the following
statements made by prosecutors in the penalty phase closing argument: "What are
the aggravating circumstances in this case? All facts and all the circumstances and
all the evidence that surrounded that episode back on May the 11th of this year.
The age of the victim. How he died. Where he died. Why he died. The motive
that was in the minds of the two men that took him into the building. How he was
murdered. How he was left. All of these factors should be put on that scale and
weighed by you, and on the other side of that scale you should put whatever
mitigating factors you heard in the case today."
       {¶ 15} Later, in rebuttal, the prosecution continued: "And I'm going to
speak a little bit about the aggravating circumstances at this point. He was ten years
old. He weighed eighty-five pounds, and according to the defendant, he barely came




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above his waist. We know he was afraid of high places. He was absolutely terrified
of the dark. … "And can you think of anything more terrifying for a boy who is
afraid of the dark, after all that's happened to him, than to be forcibly taken down
into that pitch black basement? "Just imagine what was going through his mind.
How many times did he beg them to stop? How many times did he say a little
prayer for help? And down in the basement we know it wasn't quick, and it wasn't
easy either.
       {¶ 16} "How long did it take before he lost consciousness? And when he
did, what were his last thoughts? Was he still asking this man to set him free? Or
at that point was he begging to just let him die? Those are the aggravating
circumstances on this case."
       {¶ 17} This court is thus once again faced with contentions of error in a
capital case based on lower courts having considered, or allowing the jury to
consider, or allowing the prosecutor to argue, or including in its sentencing opinion,
"nonstatutory aggravating circumstances" in connection with the determination of
whether a sentence of death should be imposed. In light of the inclusion of such an
argument in nearly every capital case recently presented to this court, we find it
appropriate to review the law, both constitutional and statutory, which governs the
resolution of such contentions.
                                          A
                           Constitutional Considerations
       {¶ 18} Proof of an "aggravating circumstance" is constitutionally required
by the Eighth Amendment to the United States Constitution before a convicted
murderer may be sentenced to death. Tuilaepa v. California (1994), 512 U.S. S.Ct.
2630, 2634-2635, 

. Statutes defining felony-murder as an
aggravating circumstance do not violate these Eighth Amendment standards, at
least as to a defendant who is found to have himself killed, attempted to kill, or
intended to kill, or who possesses a culpable mental state of reckless indifference




                                          6
                                January Term, 1995




to human life. Enmund v. Florida (1982), 

, 

, 73 L. Ed.
2d1140; Tison v. Arizona (1987), 

, 

, 

.
       {¶ 19} In Ohio, a capital defendant is tried and sentenced in a two-stage
process. During the first phase (commonly referred to as the "guilt phase") the state
must prove the defendant guilty beyond a reasonable doubt of the crime of
aggravated murder, and must also prove the defendant guilty of at least one
statutorily defined "aggravating circumstance" as set forth in R.C. 2929.04(A)(1)
through (8). At the point in time at which the factfinder (either a jury or three-judge
panel) finds the defendant guilty of both aggravated murder and an R.C. 2929.04(A)
specification, the defendant has become "death-eligible," and a second phase of the
proceedings (the "mitigation" or "penalty" or "sentencing" or "selection" phase)
begins. R.C. 2929.03(C)(2) and (D)(1).
       {¶ 20} During this latter phase, the Eighth Amendment does not preclude
consideration of the facts and circumstances surrounding the murder. To the
contrary, the United States Supreme Court has consistently recognized that the
determination as to the imposition of a death sentence should hinge on "an
individualized determination" based on "the character of the individual and the
circumstances of the crime." (Emphasis added in part.) Zant v. Stephens (1983),

, 

, 

. See, also, Woodson
v. North Carolina (1976), 

, 

, 

 ("consideration of … the circumstances of the particular offense [is] a
constitutionally indispensable part of the process of inflicting the penalty of death."
[Emphasis added.]). See, also, 

 512 U.S. at , 

,

 ("The circumstances of the crime are a traditional subject for
consideration by the sentencer, and an instruction to consider the circumstances is
neither vague nor otherwise improper under our Eighth Amendment jurisprudence"
[emphasis added].). As a matter of Eighth Amendment requirements, "'[o]nce the
jury finds that the defendant falls within the legislatively defined category of




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persons eligible for the death penalty, … the jury then is free to consider a myriad
of factors to determine whether death is the appropriate punishment' [and] may be
given 'unbridled discretion in determining whether the death penalty should be
imposed ….'" 

 at , 114 S.Ct. at, 2639, 

, quoting California
v. Ramos (1983), 

, S.Ct. 3446, 3457, 

,
and 

 426 U.S. at 875, 103 S.Ct. at 2742, 77 L.Ed.2d at 243.
       {¶ 21} Pursuant to this precedent, we reject Gumm's contention that he was
denied rights guaranteed him by the United States Constitution in that the
prosecutor argued and the jury was permitted to consider the nature and
circumstances of the murder of Aaron Raines in determining whether to
recommend a sentence of death.
                                          B
                             Statutory Considerations
       {¶ 22} Our conclusion that consideration of the nature and circumstances
surrounding a capital defendant's crime is permissible under the United States
Constitution does not conclude our inquiry, in that the imposition of a death
sentence in Ohio is further governed by statute.
       {¶ 23} Our analysis must necessarily begin with the language of the
governing statutes. In making the determination whether a death sentence should,
in fact, be imposed, "[t]he court, and the trial jury if the offender was tried by a
jury, [1] shall consider … any evidence raised at trial that is relevant to the
aggravating circumstances the offender was found guilty of committing or to any
factors in mitigation of the imposition of the sentence of death, [2] shall hear
testimony and other evidence that is relevant to the nature and circumstances of
the aggravating circumstances the offender was found guilty of committing, the
mitigating factors set forth in division (B) of section 2929.04 of the Revised Code,
and any other factors in mitigation of the imposition of the sentence of death, and
[3] shall hear the statement, if any, of the offender, and the arguments, if any, of




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                                 January Term, 1995




counsel for the defense and prosecution, that are relevant to the penalty that should
be imposed on the offender." (Emphasis added.) R.C. 2929.03(D)(1). Similarly,
R.C. 2929.03(D)(2) requires a trial jury to base its determination as to "whether the
aggravating circumstances the offender was found guilty of committing are
sufficient to outweigh the mitigating factors present in the case" upon
"consideration of the relevant evidence raised at trial, the testimony, other
evidence, statement of the offender, arguments of counsel, and, if applicable, [presentence investigation or mental examination] reports submitted pursuant to
division (D)(1) of [R.C. 2929.03]. " (Emphasis added.)
       {¶ 24} These statutes thus expressly require the jury to "consider" both
relevant trial evidence as well as "other" evidence relevant to the aggravating
circumstances the offender was found guilty of committing. Because findings of
guilt are only made as to the specifications contained in the indictment, it is clear
that the reference in these provisions to "aggravating circumstances the offender
was found guilty of committing" means the R.C. 2929.04(A) specifications set forth
in the indictment and at issue in each case. The jury is thus required to "consider"
"other evidence" relevant to those specifications, including evidence relevant to the
nature and circumstances of those specifications.
       {¶ 25} Gumm asserts before this court that despite this clear mandate to
"consider" all the evidence (including nature and circumstances evidence) in
determining whether to recommend a death sentence, the jury must not "weigh" it
against the mitigation evidence, or include nature and circumstances evidence in its
balancing process unless that evidence has first been relied upon by the defendant,
i.e., is favorable to the defendant. Implicit in the argument is the premise that, while
the defendant must be allowed to introduce unlimited mitigation evidence on one
side of the balancing scale, the state may place on the other side of the scale the
sole fact that the now death-eligible defendant was found guilty of a specification
or specifications set forth in R.C. 2929.04(A)(7). Pursuant to this analysis, the state




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may not present evidence or make argument to augment the bare fact that the
defendant was found guilty of a specification, nor may a prosecutor comment upon
the actual facts upon which that finding of guilt was based. We reject this approach,
finding it to be impracticable and abstract and lacking in common sense.
       {¶ 26} This court had little problem in its early cases in finding that
governing Ohio statutes authorize consideration of "the nature and circumstances
of the crime" during the penalty phase. See, e.g., State v. Jenkins (1984), 

, 15 OBR 311, 320, 

 ("The system currently
in place in Ohio does require the sentencing authority to focus on the particular
nature of the crime as well as allow the accused to present a broad range of specified
and nonspecified factors in mitigation of the imposition of a death sentence."); State
v. Steffen (1987), 

, 31 OBR 273, 278, 

 ("R.C. 2929.04[B] provides that the court, in determining whether death is an
appropriate penalty, 'shall consider, and weigh against the aggravating
circumstances proved beyond a reasonable doubt, the nature and circumstances of
the offense ….' … Thus, the court is required to review this factor." (Emphasis
sic.) In State v. Stumpf (1987), 

, 

, we
noted that "[i]n a particular case, the nature and circumstances of the offense may
have a mitigating impact, or they may not. Either way, they must be considered."
(Emphasis added and citation omitted.) We held in that case, as syllabus law, that
"[u]nder R.C. 2929.03(F), a trial court or three judge panel may rely upon and cite
the nature and circumstances of the offense as reasons supporting its finding that
the aggravating circumstances were sufficient to outweigh the mitigating factors,"

 at paragraph one of the syllabus, noting that "it would be illogical to require a
three-judge panel to consider the nature and circumstances of the offense in making
its decisions whether the aggravating circumstances were sufficient to outweigh the
mitigating factors, yet to forbid that panel from relying upon and citing such nature
and circumstances as reasons for its decision." 

, 

. We




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                                January Term, 1995




have noted that it is only by considering the nature and circumstances of the offense,
as well as the statutory aggravating circumstances, that it is possible "to prevent a
rigid and mechanistic sentencing scheme." State v. Jester (1987), 

, 

. We have recognized that some crimes are by their
very nature so "horrendous" or "harrowing" that it would be difficult to imagine
factors that might be mitigating. State v. Morales (1987), 

,

; State v. Steffen, supra, 

, 31 OBR at 288,

.
       {¶ 27} In paragraph one of the syllabus to State v. DePew (1988), 

, 

, we established that, pursuant to statute, a prosecutor in
the penalty stage of a capital proceeding may introduce "'any evidence raised at
trial that is relevant to the aggravating circumstances the offender was found guilty
of committing ….'" We have repeatedly acknowledged the importance of
presenting the jury with a wide range of factual information in the sentencing phase.
In State v. Greer (1988), 

, 

, we
characterized the contention that the jury is to be carefully fed only that information
which reflects positively upon the capital defendant as "ludicrous." We further
recognized that, once lawfully inserted into the sentencing considerations,
admissible evidence is subject to fair comment by both parties. 

 See, also, State
v. Sowell (1988), 

, 

; State v. Benner
(1988), 

, 

; State v. Landrum (1990), 

, 

; State v. Spirko (1991), 

, 

; State v. Lorraine (1993), 

,

.
       {¶ 28} We believe that a large part of the confusion which has developed in
this area is semantical in nature in that the term "aggravating circumstances" has
been imprecisely employed to refer not only to the eight enumerated specifications
of aggravating circumstances of R.C. 2929.04(A), but also to any evidentiary




                                          11
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factors which tend to increase the likelihood that a death sentence will be imposed.
The nature and circumstances of a crime may be "aggravating" in the sense that
they are relevant and tend to reinforce the conclusion that a death sentence should
be imposed. This does not mean that the facts surrounding a crime can be set forth
in the indictment as a specified statutory aggravating circumstance, nor may they
be deemed an "aggravating circumstance" in terms of determining death eligibility.
State v. Johnson (1986), 

, 24 OBR 282, 

. Thus,
the fact that a particular murder was, for instance, particularly cruel or heinous is
relevant to the determination of the appropriateness of actually imposing a death
sentence on a death-eligible perpetrator, even though the fact of cruelty or
heinousness would not, of itself, be sufficient to bring the crime within the scope
of any section of R.C. 2929.04(A), nor could that fact be used to cause the defendant
to become death-eligible. Maynard v. Cartwright (1988), 

, 

, 

. Such an analysis is entirely consistent with the vast weight
of established precedent of this court in interpreting Ohio's statutes governing
capital punishment, as discussed supra, and the United States Supreme Court in
interpreting the United States Constitution. See Barclay v. Florida (1983), 

, 

, 

 (sentencer's consideration of fact that murder
included element of racial hatred not improper because relevant to statutorily
defined aggravating circumstances, although racial hatred did not itself constitute a
statutorily defined aggravating circumstance); 

 at , 

, 

 (Stevens, J., concurring, citing Zant v. 

 for the proposition that an incorrect characterization of a relevant factor as
an aggravating factor does not prejudice a capital defendant, and noting that
"references to such potentially ambiguous, but clearly relevant, factors [as the age
of the defendant or the circumstances of the crime] actually reduces [sic] the risk
of arbitrary capital sentencing."). See, generally, Annotation, Validity of Death
Penalty, Under Federal Constitution, as Affected by Consideration of Aggravating




                                         12
                                January Term, 1995




or Mitigating Circumstances—Supreme Court Cases (1993), 

,
956 et seq.
       {¶ 29} We therefore hold, consistent with paragraph one of the syllabus in

 and the language of R.C. 2929.03(D)(1) and (2), that, subject to
applicable Rules of Evidence, counsel for the state and for the defendant at the
penalty stage of a capital trial may introduce and comment upon (1) any evidence
raised at trial that is relevant to the aggravating circumstances specified in the
indictment of which the defendant was found guilty, (2) any other testimony or
evidence relevant to the nature and circumstances of the aggravating circumstances
specified in the indictment of which the defendant was found guilty, (3) evidence
rebutting the existence of any statutorily defined or other mitigating factors first
asserted by the defendant, (4) the presentence investigation report, where one is
requested by the defendant, and (5) the mental examination report, where one is
requested by the defendant. Further, counsel for the state may comment upon the
defendant's unsworn statement, if any. Such comment does not, in and of itself,
constitute impermissible argument or impermissible introduction of nonstatutory
aggravating factors into the penalty phase proceedings. To the extent that this
evidence brings before a jury "nonstatutory aggravating factors," the introduction
of that evidence for consideration by the jury in the penalty phase is specifically
authorized by Ohio statute.
       {¶ 30} We issue, however, an additional admonition to courts and
prosecutors. Our holding in State v. Davis (1988), 

, 

, that it is improper to describe nature and circumstances
evidence as a statutorily defined aggravating circumstance remains intact. Trial
courts should not instruct jurors that "nature and circumstances" evidence is to be
"weighed against" mitigating factors, but should continue to describe only the
statutorily defined elements specified in the indictment as being the "aggravating
circumstances" a jury is to place on one side of the balance, with mitigating factors




                                         13
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placed on the other side. Juries may be instructed, and prosecutors may argue, that
juries may "consider" the factors set forth in R.C. 2929.03(D)(1) in making their
recommendation. Both courts and prosecutors should, however, refrain from
advising juries that the aggravating circumstances placed on one side of the balance
include "everything that surrounds this crime," or "all the nature and circumstances
of this crime" or any comparable phraseology. Both courts and attorneys should do
all in their power to minimize jury confusion by avoiding use of the same term
("aggravating circumstances") to describe two very different legal concepts, i.e.,
facts sufficient to elevate a crime to a death-eligible category, and facts relevant to
a determination as to whether a death sentence should be imposed upon a death-eligible capital defendant.
       {¶ 31} Applying the foregoing principles to the case at bar, we note that the
prosecutor's closing arguments did imprecisely describe the facts surrounding
Aaron Raines's murder as "the aggravating circumstances" in the case. Had an
objection been lodged to this description, it would properly have been sustained.
No objection, however, was made to any portion of the state's summation
arguments, and the inaccurate description of "nature and circumstances" evidence
as "aggravating circumstances" during argument does not constitute plain error.
We find beyond a reasonable doubt that the outcome of the jury's sentencing
recommendation would not have been different in the absence of this argument,
particularly as the jury was correctly instructed as to what the statutory aggravating
circumstances were for weighing purposes. See State v. Campbell (1994), 

, 

 (The rule of plain error may be invoked only in
rare cases where, but for the error, the outcome of the trial clearly would have been
otherwise.) Similarly, had objection been made to the prosecutor's invitation to the
jury to "imagine" or speculate on aspects of the case not in evidence, e.g., Aaron
Raines's final thoughts, a trial court might well in its discretion have sustained that
objection. State v. Lott (1990), 

, 

, 300




                                          14
                                January Term, 1995




(prosecutors "may not allude to matters not supported by admissible evidence").
However, the prosecutor's comments on Aaron's age, size, physical condition, and
the defendant's motive were not objectionable, as they constituted comment on the
nature and circumstances of the statutory aggravating circumstance of felony-murder as set forth in R.C. 2929.04(A)(7), which the jury was mandated by R.C.
2929.03(D)(1) to consider.
                                          II
                             Response to Jury Question
       {¶ 32} During its deliberations at the close of the penalty phase, the jury
posed the following question to the court: "Are the aggravating circumstances to
Count I just the kidnapping and attempted rape, or do they also include the murder
itself?" The jury was called into the courtroom and, after reading the question aloud,
the trial court responded as follows: "The answer to that is Yes.' Let me read you
the instructions on that point. And if … you're mixed up on something after I get
done re-reading it, it's in your instruction booklet under the heading aggravating
circumstances." The trial court then reread the jury instructions that discussed the
statutory aggravating circumstances of the case. No contemporaneous objection
was lodged to this response. After the jury returned to its deliberations, Gumm's
counsel lodged an objection to the court's response, claiming that the court had
indicated that the aggravated murder was in and of itself one of the aggravating
circumstances to be considered in determining penalty.
       {¶ 33} In this case, with regard to Count I, the jury was called upon to
determine whether the defendant was guilty of the death specification of felony-murder, R.C. 2929.04(A)(7), which required proof that Gumm was either "the
principal offender in the commission of the aggravated murder or, if not the
principal offender, [that he] committed the aggravated murder with prior
calculation and design." (Emphasis added.) We have previously held that proof of
guilt of R.C. 2929.04(A)(7) requires proof that the murder was directly "associated




                                         15
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with" the identified underlying felony as "a part of one continuous occurrence."
State v. Rojas (1992), 

, 

. Although
the murder is an element of the felony murder aggravating circumstance defined by
R.C. 2929.04(A)(7), it is not, standing alone, an additional aggravating
circumstance.
        {¶ 34} We note that the jury question itself was compound in nature and
therefore contained a potential for ambiguity. As a result, the trial court's response
("the answer to that is yes") contained an element of uncertainty as to whether that
answer meant, "yes, the aggravating circumstances are just the kidnapping and
rape" or "yes, the aggravating circumstances include the murder itself." We note
that defense counsel's objection to the court's response was not made at a point in
time at which the trial court could easily have corrected the ambiguity inherent in
its response, and error, if any, might properly be deemed to have been waived. See
State v. Williams (1977), 

, 

, 

,
paragraph one of the syllabus. If, however, an element of uncertainty remained in
the minds of the jurors thereafter, the trial court had quite properly instructed them
to refer to the written instructions it had provided them for further clarification.
Those instructions adequately defined both the statutory aggravating circumstances
at issue as well as the process by which the jury was to weigh the aggravating
circumstances against any mitigating factors it found. We do not find reversible
error in the trial court's response.
                                         III
                         Deficiencies of Sentencing Opinion
        {¶ 35} Gumm contends that the trial court's sentencing opinion improperly
emphasized facts tending to show that the murder of Aaron Raines contained an
element of prior calculation and design and thereby shows inappropriate weighing
of nonstatutory aggravating factors. This contention is summarily rejected not only
on the basis of our discussion herein of nature and circumstances evidence in capital




                                         16
                                January Term, 1995




cases, but also on precedent established in, e.g., State v. Johnston (1988), 

, 

; State v. Landrum, supra, 

,

.      Additionally, this court's independent review cures any
deficiencies of the trial court in failing to conform with the requirements of R.C.
2929.03(F) in its written opinion. State v. Lott, supra, 

,

.
                                         IV
                            Deficient Jury Instructions
       {¶ 36} Gumm argues that the jury was inadequately instructed in that the
court's instructions in the penalty phase failed to instruct the jury that Gumm's
mental retardation reduced his moral culpability. Gumm concedes that no objection
to the instructions was proffered at the trial court. Error, if any, is thus properly
deemed waived. State v. Adams (1980), 

, 

, 

. See, also, State v. Hill (1992), 

,

 (although evidence of mental retardation may be mitigating,
death sentence upheld where jury was allowed to consider evidence of low IQ,
defendant suffered from no psychoses and could distinguish between right and
wrong); State v. Holloway (1988), 

, 

; State v. Jenkins, supra, 

, 15 OBR at 345-347, 

.




                                         17
                              SUPREME COURT OF OHIO




                                           V
                                   Gruesome Photos
        {¶ 37} Gumm argues that the jury was inflamed by the admission of
repetitive, cumulative photographs of the victim and particularly of an enlarged
(two feet by three feet) photo of the victim's face which was used by the former
deputy coroner during her testimony to explain her autopsy findings as to the extent
of Aaron's injuries. Gumm further asserts that he was prejudiced by the admission
of the murder weapons.
        {¶ 38} Under Evid. R. 403 and 611(A), the admission of photographs is left
to the sound discretion of the trial court. State v. Maurer (1984), 

, 15 OBR 379, 401; 

. Nonrepetitive photographs in
capital cases, even if gruesome, are admissible if the probative value of each
photograph outweighs the danger of material prejudice to an accused.                

paragraph seven of the syllabus.
        {¶ 39} In determining the admissibility of the photographs offered into
evidence by the prosecution, the trial judge carefully reviewed each photo
individually and determined the probative value of each one under the Maurer
standard. We have reviewed each photograph as well and find that each exhibits a
wound or murder weapon at the crime scene that is not readily apparent in any other
photograph. Thus, the relevancy and probative value of each admitted photo
satisfied Maurer. Similarly, a videotape showing the defendant "walking through"
the crime scene with police and describing the events surrounding the murder was
clearly probative and was not gruesome in nature. The trial court did not abuse its
discretion in allowing it to be introduced as evidence.
        {¶ 40} Two enlarged photographs were used by the deputy coroner to
explain and detail the injuries and trauma sustained by the victim in lieu of showing
projected slides to the jury. The trial court, in the proper exercise of its discretion,
found the photos themselves to be admissible. We do not believe that size alone




                                          18
                                January Term, 1995




increases the prejudicial aspect of the photos to such an extent that they become
inadmissible.
         {¶ 41} Last, the probative value of the murder weapons found near the body
clearly outweighs any material prejudice to Gumm, and the court did not abuse its
discretion in admitting them.
                                          VI
                   Improper Admission of "Other Acts" Evidence
         {¶ 42} Gumm contends he was denied due process and the right to a fair
trial by the admission of evidence of his prior bad acts. Gumm first challenges the
admissibility of testimony elicited from witnesses Phyllis Thacker and Charlotte
Baker.     Specifically, Thacker testified that Gumm "was hateful"; that his
personality would change when he drank alcohol; and that Gumm told her that he
had once had sexual contact with a horse. Baker testified that Gumm started giving
her "strange looks" during the month before the murder and that he had graphically
expressed to her his desire to have sex. Gumm asserts that his chance for a fair trial
was irretrievably lost after this testimony.
         {¶ 43} Evid. R. 404(B) provides that "[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident." R.C. 2945.59 states: "In any criminal case in
which the defendant's motive or intent … or system in doing an act is material,
any acts of the defendant which tend to show his motive or intent … or system in
doing the act in question may be proved, whether they are contemporaneous with
or prior or subsequent thereto, notwithstanding that such proof may show or tend
to show the commission of another crime by the defendant." In State v. Flonnory
(1972), 

, 

, 

, this
court noted that R.C. 2945.59 permits the showing of "other acts" when such other




                                          19
                              SUPREME COURT OF OHIO




acts "tend to show" certain things, e.g., motive and intent, as identified in the statute.
"If such other acts do in fact 'tend to show' any of those things they are admissible
notwithstanding they may not be 'like' or 'similar' to the crime charged." 

        {¶ 44} We note that the prosecution did not revisit these factual disclosures
in its summation, nor emphasized them in any way thereafter. Even assuming,
arguendo, that the challenged evidence should have been deemed inadmissible, we
find on the basis of the record as a whole that Gumm received a fair trial and that it
is beyond a reasonable doubt that the jury would have both convicted this defendant
and sentenced him to death even in the absence of this evidence. See 

, 

.
        {¶ 45} Second, Gumm asserts that the state engaged in prosecutorial
misconduct in connection with the testimony of defense witness Dr. Henry Leland.
Prior to trial Gumm moved the court to provide funds to procure an expert to assist
his presentation of mitigation evidence, should he be found guilty. The motion was
granted, and Gumm obtained Dr. Leland, a psychologist with expertise in mental
retardation. Dr. Leland was called as a defense witness at the guilt phase of Gumm's
trial, where he testified that he had interviewed Gumm, reviewed the transcripts of
Gumm's statements to police, and reviewed a packet of information supplied to him
by Gumm's counsel outlining tests and interviews undertaken and prepared by the
Court Psychiatric Center and psychological reports generated while Gumm was a
juvenile. In relying on this information and his own testing of Gumm, Dr. Leland
concluded that Gumm demonstrated a mild to borderline level of mental retardation
and that Gumm did not have the ability to accurately or consistently describe any
series of events.
        {¶ 46} Thereafter, the prosecutor moved to strike the testimony of defense
witness Dr. Henry Leland, unless the packet of materials prepared by the Court
Psychiatric Center and relied on by Dr. Leland was admitted into evidence. Gumm
argues that admission of the entire packet of materials permitted the prosecution to




                                           20
                                   January Term, 1995




engage in further misconduct by allowing it to focus on prior bad acts of defendant
(past instances of cruelty to animals and an alleged attempt to rape a friend of his
sister).
           {¶ 47} This claim is without merit. Dr. Leland was called as the sole
defense witness to show that Gumm's confession to police was not reliable. In
response to the prosecutor's question whether the packet of information helped him
form the basis of his opinions on Gumm, Dr. Leland stated that the packet
"presented the major basis, because when I was able to compare that information
with my information, it became clear what the problem was."
           {¶ 48} Evid. R. 703 provides that "[t]he facts or data in the particular case
upon which an expert bases an opinion or inference may be those perceived by him
or admitted in evidence at the hearing." See State v. Jones (1984), 

, 9 OBR 347, 

, the syllabus of which provides: "Pursuant to
Evid. R. 703, facts or data upon which an expert bases an opinion must be those
perceived by him or admitted in evidence at the hearing." (Emphasis added.)
           {¶ 49} While Gumm may have been forced to offer the Court Psychiatric
Center packet into evidence to save the testimony of his only witness, the motion
by the prosecutor does not constitute prosecutorial misconduct. The Rules of
Evidence and relevant precedent support the propriety of the prosecution's motion
in this regard. Because the prosecutor was permitted to comment upon the evidence
admitted at trial, as discussed supra, at Part I of this opinion, his reference to
materials contained in the packet in his closing argument was permissible.




                                            21
                              SUPREME COURT OF OHIO




                                          VII
                      Failure to Provide Mitigation Specialist
        {¶ 50} In this case the court provided funds for defense counsel to obtain a
mitigation psychologist. Gumm now argues, unsuccessfully, that he should instead
have been provided with a "mitigation specialist." "An indigent defendant who
seeks state funded expert assistance bears the burden of establishing a reasonable
necessity for such assistance, and 'undeveloped assertions that the proposed
assistance would be useful to the defense are patently inadequate.'" State v. Sowell
(1991), 

, 

, quoting State v. Scott
(1987), 

, 

. We do not believe that the
state, having provided a mitigation psychologist, was constitutionally required to
provide a "mitigation specialist" instead.
        {¶ 51} Gumm's contention that he was precluded from obtaining a
"mitigation specialist" as a result of shortness of time, and therefore forced to select
Dr. Leland instead, is foreclosed by the fact that Gumm did not seek a continuance
for the purpose of obtaining such a specialist in lieu of Dr. Leland. The trial court
was under no obligation to grant a continuance sua sponte.
                                         VIII
                           Effective Assistance of Counsel
        {¶ 52} Reversal of a conviction on the grounds of ineffective assistance
requires that defendant show, first, that counsel's performance was deficient, and
second, that the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial. Strickland v. Washington (1984), 

, 

, 

. However, each act of counsel with which
Gumm finds fault was either not asserted as error in the court of appeals, and thus
waived, or may be justified as a strategic decision. Nor has Gumm demonstrated
prejudice, i.e., "a reasonable probability that, were it not for counsel's errors, the




                                          22
                                 January Term, 1995




result of the trial would have been different." State v. Bradley (1989), 

, 

, paragraph three of the syllabus.
       {¶ 53} Gumm's claim of ineffective assistance of counsel before the court
of appeals should also be rejected. Gumm argues that appellate counsel was
ineffective for not raising the issue of ineffective trial counsel based on failure to
object to prosecutorial misconduct during trial.         However, failure to make
objections does not constitute ineffective assistance of counsel per se, as that failure
may be justified as a tactical decision. Furthermore, appellate counsel need not
raise every conceivable issue on appeal. See 

, 

.        Moreover, the process of "'winnowing out weaker
arguments on appeal and focusing on' those more likely to prevail … is the
hallmark of effective appellate advocacy." Smith v. Murray (1986), 

,
536 106 Ct. 2661, 2667, 

.
                                          IX
                                   Miranda Issues
       {¶ 54} Gumm contends that the trial court erred in failing to suppress
inculpatory statements made to police based on the doctrine of Miranda v. Arizona
(1966), 

, 

, 

. Gumm argues that all his
statements were made in a custodial context, including those made during his squad
car ride back to Cincinnati. Gumm further argues that his statements may not be
deemed to have been knowingly, intelligently and voluntarily made in light of the
fact that the statements were elicited by seasoned police officers from a youthful,
mentally retarded defendant.
       {¶ 55} The duty to advise a suspect of Miranda rights does not attach until
questioning rises to the level of a "custodial interrogation." State v. Roe (1989), 

, 

. In judging whether an individual has
been placed into custody the test is whether, under the totality of the circumstances,
a "reasonable person would have believed that he was not free to leave." United




                                          23
                             SUPREME COURT OF OHIO




States v. Mendenhall (1980), 

, 

, 

 (plurality opinion). Accord Florida v. Bostick (1991), 

,

, 

.
       {¶ 56} We need not determine whether Gumm's time in the police car was
custodial, in that the state did not proffer into evidence any statements Gumm may
have made to police during his ride to Cincinnati.
       {¶ 57} While at police headquarters, Gumm waived his Miranda rights
several times and signed two waiver of rights forms. A review of the audio and
videotape interviews of Gumm also include waivers of Miranda rights, and exhibit
no signs of police coercion, threats, mistreatment or physical deprivation. While
the state carries the burden of proving the voluntariness of a confession by a
preponderance of the evidence, a low mental aptitude of the interrogee is not
enough to show evidence of overreaching. State v. Hill, supra, 

, 

. See, also, Annotation, Mental Subnormality of Accused
as Affecting Voluntariness or Admissibility of Confession (1981), 

.
While Gumm alleges that he can neither read nor write, defense witness Dr. Nancy
Schmidtgoessling testified at the motion to suppress hearing that she discovered
that Gumm could "actually read fairly decently in terms of the rights forms that we
went over together. He recognized most of those words, seemed to know what they
meant as well, not just recognizing."
       {¶ 58} In determining the validity of his waivers we look to the totality of
the circumstances. State v. Smith (1991), 

, 

. Under the governing totality of circumstances test the trial court correctly held
Gumm's waiver of Miranda rights to be voluntary and his subsequent confession to
be admissible.




                                         24
                                January Term, 1995




                                          X
                    Alleged Violation of Right to Trial by Jury
       {¶ 59} Gumm contends that an appellate court's power of independent
review of capital sentences under R.C. 2929.05 violates the rights of trial by jury
accorded an accused under Sections 5 and 10, Article I of the Ohio Constitution.
       {¶ 60} The Ohio Constitution states that "[t]he right of a trial by jury shall
be inviolate …." Section 5, Article I. Section 10, Article I provides that "[i]n any
trial, in any court, the party accused shall be allowed … a speedy public trial by
an impartial jury …." However, neither constitutional provision cited by Gumm
guarantees the right to be sentenced by a jury nor was sentencing a jury function at
common law. We therefore reject Gumm's contention that he was denied his right
to a jury trial as guaranteed by the Ohio Constitution.
                                         XI
                             Miscellaneous Trial Issues
       {¶ 61} Gumm contends that his conviction and death sentence should be
deemed void based on what he contends was his illegal arrest in Kentucky and
transport to Ohio in the absence of proper extradition procedures. The record,
however, supports the sole conclusion that Gumm voluntarily returned to Ohio with
Cincinnati police officers. Assuming, arguendo, that Gumm was coerced, tricked,
induced or deceived into returning to Ohio, such a circumstance would not
necessarily invalidate a conviction. Ker v. Illinois (1886), 

, 

, 

; Frisbie v. Collins (1952), 

, 

, 

; Tomkalski v. Maxwell (1963), 

, 378-379, 

, 278-
279, 

, 846; State v. Thierbach (1993), 

, 

. See Annotation, Modern Status of Rule Relating to Jurisdiction of
State Court to Try Criminal Defendant Brought Within Jurisdiction Illegally or as
Result of Fraud or Mistake (1983), 

 (Ker-Frisbie rule




                                         25
                             SUPREME COURT OF OHIO




overwhelmingly recognized with possible exception only in cases of outrageous
illegal conduct involving kidnapping, torture, or excessive force).
       {¶ 62} Gumm argues that the trial court erred in refusing to change the
venue of his trial in that pretrial publicity in Hamilton County, including publicity
concerning the antecedent trial and conviction of Gumm's accused accomplice,
Michael Bies, precluded a fair trial in that county.
       {¶ 63} In reviewing this contention we are guided by established principles
that the decision on changing venue rests largely in the discretion of the trial court.
State v. Fox (1994), 

, 

. Absent a
clear showing of an abuse of discretion, the trial court's decision controls. "[T]he
interests of judicial economy, convenience, and reduction of public expenses
necessitate that judges make a good faith effort to seat a jury before granting a
change in venue." 

, 

. Further, in Ohio we recognize
that the examination of jurors on their voir dire affords the best test as to whether
prejudice exists in the community. 

 Although a trial court may in its discretion
conduct a separate venue hearing prior to jury selection, it is not required to do so.
Nor is it necessary to conduct voir dire of prospective jurors individually and out
of the hearing of other members of the venire. State v. Mapes (1985), 

, 19 OBR 318, 

, paragraph three of the syllabus; State v. Brown
(1988), 

, 

, paragraph two of the syllabus.
       {¶ 64} The record reflects that jurors seated in this case affirmed that they
would judge the defendant solely on the law and evidence presented at trial, despite
having been exposed to pretrial publicity. See State v. Maurer, supra, 

, 15 OBR at 390, 473 N.E.2d at 781; State v. Spirko, supra, 

, 

. A review of the voir dire proceedings indicates
that all jurors who were seated in this case were passed for cause by defense
counsel. Gumm has failed to demonstrate that the trial court abused its discretion
in refusing to change the venue of his trial.




                                          26
                                January Term, 1995




       {¶ 65} Gumm contends that the trial court abused its discretion in refusing
to allow defense counsel to defer making an opening statement until after the state
rested its case. Gumm's argument is defeated by the precedent established in State
v. Bayless (1976), 

, 

, 

, paragraph
three of the syllabus, where this court held that "[a]ny decision to vary the order of
proceedings at trial in R.C. 2945.10 is within the sound discretion of the trial court,
and any claim that the trial court erred in following the statutorily mandated order
of proceedings must sustain a heavy burden to demonstrate the unfairness and
prejudice of following that order." Accord State v. Jenkins, supra, 

, 15 OBR at 355, 473 N.E.2d at 308; State v. Grant (1993), 

, 

. Gumm argues that Ohio law provides such limited
discovery rights to criminal defendants that fairness demands that a defendant be
accorded the right to defer opening statement until after having heard all of the
state's evidence. We reject the argument.
       {¶ 66} Gumm challenges the trial court's instruction to the jury apprising it
that it was called upon to "recommend" a nonbinding sentence of death if it found
the aggravating circumstance outweighed the mitigating circumstances.             The
challenge fails. The argument that such an instruction impermissibly reduces the
jury's sense of responsibility in recommending death has been consistently rejected
by this court. See, e.g., State v. Buell (1986), 

,22 OBR
203, 219-220, 

; State v. Steffen, supra, 

, 31 OBR at 275, 

; State v. Grant, supra, 

, 

. Similarly, no plain error was committed in providing the
jury with a verdict form including the words "we recommend" a sentence of death.
State v. Carter (1995), 

, 

, 977-978. We note
that no objection to the verdict forms appears in the record, and failure to so object
constitutes a waiver of the right to appeal the issue. State v. Thompson (1988), 

, 

.




                                          27
                             SUPREME COURT OF OHIO




                                         XII
                                  Constitutionality
       {¶ 67} Gumm raises seven claims of unconstitutionality in Ohio's death
penalty statutes for purposes of preserving issues for federal review.           The
constitutional arguments he raises have all have been rejected by this court in
numerous cases. See, e.g., State v. Sowell, supra, 

, 

.   Accordingly, we reject Gumm's constitutional challenges. State v.
Poindexter (1988), 

, 

, syllabus.
                                        XIII
                 Independent Review and Proportionality Analysis
       {¶ 68} At the sentencing hearing, Gumm called one witness, his sister
Karen Ridenour, who testified that Gumm's alcoholic mother died when he was an
infant and that he was raised by her family. Ridenour described Gumm as "very
backwards" in school and related an incident where Gumm was abducted and raped
at gunpoint when he was seven years old. Ridenour stated that Gumm could never
read or write, and couldn't think for himself. She described several incidents of
animal abuse by Gumm after his rape and described those incidents as being "signs
that he was calling for help." She testified that her mother and father never attended
parenting classes or otherwise tried to resolve Gumm's behavioral problems, and
that no one "reached out to help him, period." Gumm was later placed in an
orphanage for approximately three years because of his constant truancy. This
history and background provide modest mitigating features.
       {¶ 69} With respect to the relevant statutory mitigating factors of R.C.
2929.04(B) raised by the defense, Gumm's brain dysfunction and mental retardation
do not qualify as a mental disease or defect under subsection (3) of the statute. See
State v. Davis (1992), 

, 

. Gumm was
twenty-six years old at the time of the murder, thus making the factor set forth in
subsection (4) inapplicable. However, the factor set forth in subsection (5) is




                                         28
                               January Term, 1995




entitled to some weight. While Gumm was placed in an orphanage as a juvenile
because of his truancy, he does not have a significant history of prior criminal
convictions.
       {¶ 70} The factor set forth in subsection (6) of R.C. 2929.04(B) is not
applicable to Gumm's case despite his allegations that it was not he, but Bies, who
brutalized and killed Aaron Raines. Dr. Martin's testimony and several statements
made to police by Gumm contradict his claims that he was a mere "participant" in
Aaron's murder, and not a "principal offender."
       {¶ 71} With respect to the mitigating factor described in subsection (7) of
R.C. 2929.04(B), Gumm's retardation and brain dysfunction may be entitled to
some weight. However, despite his low IQ, Gumm is able to distinguish right from
wrong as noted by Dr. Leland and several court-appointed psychologists who
examined him. See 

, 

.
       {¶ 72} Upon independent weighing, the merged aggravating circumstances
outweigh the mitigating factors beyond a reasonable doubt. The totality of evidence
and circumstances portrays a heinous and brutal crime that shocks the senses. A
small ten-year-old boy who was afraid of the dark and who had problems walking
was tricked into going into two abandoned buildings to earn some money and to
help a family friend. Once inside, Gumm and Bies told Aaron Raines of their true
intentions and Aaron resisted. This clearly constituted kidnapping under R.C.
2905.01. Since Aaron refused to give into the sexual desires of his abductors, he
was then taken down to the basement and brutally murdered. The jury could have
found beyond a reasonable doubt that Gumm was a principal offender in the
aggravated murder, since evidence that Aaron lacked defensive wounds supported
a finding that two people participated in the actual killing of Aaron Raines.
Similarly, the sheer number of blows and weapons used, including evidence of shoe
prints on Aaron's chest, which were inconsistent with the shoes worn by Gumm's




                                        29
                            SUPREME COURT OF OHIO




accomplice, supports the conclusion that Gumm was an active participant in the
murder.
       {¶ 73} Imposition of the death penalty in this case is both appropriate and
proportionate when compared with similar capital cases where murder was
combined with kidnapping or attempted rape. See, e.g., State v. 

, 

 (twelve-year-old victim); 

, 

; State v. Cooey (1989), 

, 

; and State v. 

, 

.
       {¶ 74} Accordingly, appellant's convictions and sentences are affirmed.
                                                              Judgment affirmed.
       DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
       WRIGHT, J., concurs in judgment only.
                             __________________




                                       30