[This opinion has been published in Ohio Official Reports at
80 Ohio St.3d 390.]
THE STATE OF OHIO, APPELLEE, v. MCGUIRE, APPELLANT.
[Cite as State v. McGuire, 1997-Ohio-335.]
Criminal law—Aggravated murder—Death penalty upheld, when—Residual doubt
is not an acceptable mitigating factor under R.C. 2929.04(B).
Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since
it is irrelevant to the issue of whether the defendant should be sentenced to
death.
(No. 96-1213—Submitted June 10, 1997—Decided December 10, 1997.)
APPEAL from the Court of Appeals for Preble County, No. CA95-01-001.
__________________
{¶ 1} Dennis McGuire, appellant, was convicted of the kidnapping, rape,
and aggravated murder of twenty-two-year-old Joy Stewart of West Alexandria,
Ohio. He was sentenced to death.
{¶ 2} Joy Stewart was last seen alive on February 11, 1989. That morning,
she had breakfast with her neighbors between 9 and 10. She went there alone that
morning because her husband, Kenny Stewart, a truck driver, worked that day from
approximately 7:00 a.m. to 5:00 p.m. After breakfast, Joy went to visit Juanita
Deaton, the mother of her friend Chris Deaton. Mrs. Deaton and her son lived next
to each other in a duplex in West Alexandria.
{¶ 3} McGuire had been hired by Chris Deaton to clean the ice out of his
gutters that day. According to Chris, McGuire started around 9 or 10 a.m., and
finished around noon. Mrs. Deaton testified that Joy arrived at around 9:30 or
10:00, while McGuire was working.
{¶ 4} Mrs. Deaton saw Joy talking to two unidentified males in a darkcolored car before she left. As Joy was leaving, she told Mrs. Deaton that “she was
going to catch a ride somewhere,” although Mrs. Deaton did not actually see Joy
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leave in the car. Mrs. Deaton was unsure whether McGuire was one of the men in
the car. A few minutes later, however, Mrs. Deaton asked whether McGuire had
finished working on the gutters, and her son stated that McGuire had been paid and
left.
{¶ 5} Jerry Richardson, McGuire’s brother-in-law, testified that McGuire
later came over to his house that afternoon. While they were in Richardson’s
garage, Joy came in and said she wanted some marijuana. Richardson further
testified that McGuire offered to get her some, and the two left in McGuire’s car.
{¶ 6} The following day, February 12, two hikers found the body of Joy
Stewart in some woods near Bantas Creek. The front of her shirt was saturated
with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there
appeared to be a “blood wipe mark” on her right arm. The body was taken to the
Montgomery County Coroner’s Office, where an autopsy was performed. The
autopsy revealed that Joy had been stabbed twice. One wound, located above the
left collarbone, caused no significant injury. The critical wound was a four-and-a-
half-inch-deep cut in the throat, which completely severed the carotid artery and
jugular vein. The doctor determined that Joy was alive when she received the
wound, and that such a wound could have been caused by a single-edged blade
shorter than four and a half inches, due to “how soft and moveable the tissues are
in the neck.” The autopsy also revealed abrasions around the neck, impressed with
the cloth pattern of Joy’s shirt.
{¶ 7} The coroner’s office also took vaginal, oral, and anal swabs. The
coroner found an abundant amount of sperm on the anal swab, some sperm on the
vaginal swab, and none on the oral swab. The coroner indicated that sperm could
be detected in the vagina for days or sometimes weeks after ejaculation; however,
sperm in the rectum could be detected for a lesser time “because the environment
is fairly hostile for sperm, and … a bowel movement … usually will purge the
rectum of any sperm.”
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{¶ 8} Investigator David Lindloff of the Preble County Prosecutor’s Office
investigated the murder, but to no immediate avail. However, in December 1989,
Lindloff was notified that McGuire wanted to talk to him about information
concerning a murder in Preble County. McGuire was in jail at the time on an
unrelated offense and told a corrections officer that he needed to talk to Investigator
Lindloff and Deputy Swihart.
{¶ 9} Joseph Goodwin, the corrections officer McGuire initially talked to,
took appellant to a private room to talk, where McGuire told him that he knew who
had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire’s brother-in-law, had killed Joy with a knife, and appellant could lead investigators to it.
McGuire explained to Officer Goodwin that Richardson had wanted to have sex
with Joy, but she had refused. McGuire claimed that Richardson then pulled a knife
on her, and forced her to have oral sex with him. McGuire then said Richardson
anally sodomized her because he “couldn’t have regular sex with her because she
was pregnant.” He also said Richardson stabbed her “in the shoulder bone” and
“cut her throat.”
{¶ 10} Based on these details, Goodwin contacted Investigator Lindloff,
who talked to McGuire on December 22, 1989. McGuire told Lindloff that
Richardson committed the murder, that he stabbed Joy twice in the neck, and that
“the first time it didn’t go in. He pulled the knife back out and stuck her again.”
Lindloff was interested, since the fact that Joy had been stabbed twice in the neck
and anally sodomized had not been revealed to the public at that time. The appellant
also described in detail the area where Joy’s body had been found.
{¶ 11} McGuire then led Lindloff and deputies to the murder weapon, on a
local farm where he and Richardson had occasionally worked. McGuire led the
officers to the hayloft and showed them where a knife was hidden behind a beam.
{¶ 12} A subsequent audiotaped interview by Deputy Swihart elicited
further details from McGuire. McGuire claimed that Richardson choked Joy before
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stabbing her and wiped his bloody hands off on her, both of which actions were
consistent with the state of Joy’s body at the crime scene. Again, Swihart felt that
these details were significant, since they had never become a matter of public
knowledge. Furthermore, McGuire stated that he was pretty sure that Richardson
was driving his mother’s blue Ford Escort the day of the murder. However,
Richardson’s mother later testified at trial that she had traded that car in 1988, a
year before the murder, and Richardson did not have access to her car on the day
of the murder, since she had driven it to work.
{¶ 13} While in prison on December 24, 1989, McGuire received a visit
from his childhood friend Shawn Baird. At the time, McGuire told Baird that he
knew about a murder that happened in Preble County in February. When Baird
asked who did it, the appellant stated that he and Jerry Richardson had done it, and
he was going to blame it all on Jerry.
{¶ 14} A fellow inmate at the Preble County Jail, Jack Stapleton, testified
that he had overheard a conversation between McGuire and another inmate, in
which McGuire claimed that he had seen his brother-in-law rape and murder Joy.
However, at one point, McGuire apparently slipped and implicated himself when
telling the story. While describing the murder, Stapleton testified that McGuire
“had his hand like this describing [sic], telling the guy how she was killed. And he
said I—he goes I mean he. Stabbed her like this. Hit a bone. It didn’t kill her. So
he stabbed her again.”
{¶ 15} McGuire was later transferred to Madison Correctional Institute. An
inmate there, Willie Reeves, testified that McGuire told him that while he was
cleaning gutters, Joy showed up asking whether McGuire had any marijuana.
McGuire offered to share some with her, and they left in his car. At one point
McGuire asked whether she wanted to have sex, and she refused. McGuire then
told Reeves he did it anyway. He then explained that because she was so pregnant,
it was difficult to engage in sex with her, so instead he anally sodomized her. Joy
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January Term, 1997
then became “hysterical,” which made McGuire nervous. He ended up killing Joy
for fear that he would go to jail for raping a pregnant woman.
{¶ 16} In June 1992, the Montgomery County Coroner’s Office sent the
vaginal, anal, and oral swabs collected from Joy’s body, along with a cutting from
her underpants, to Forensic Science Associates, a private laboratory, for DNA
testing using the PCR technique.1 A forensic scientist there compared DNA
extracted from the samples with blood samples taken from Dennis McGuire, Jerry
Richardson, Joy Stewart, and Joy’s husband, Kenny Stewart. The scientist
determined that McGuire could not be eliminated as a source of the sperm. Kenny
Stewart and Richardson, however, could be eliminated, unless there were two
sperm sources, e.g., multiple assailants. This was because the sperm analyzed
contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2.
McGuire’s DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and
the victim’s DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified
that the trace amount of 1.1, 2 could have resulted either from Joy’s epithelial cells
taken in the swab, or from a secondary sperm source. The sperm DNA analyzed
had characteristics that appear in about one in one hundred nineteen males in the
white population.
{¶ 17} On December 22, 1993, McGuire was indicted on one count of
aggravated murder under R.C. 2903.01(B), with one felony-murder specification
for rape under R.C. 2929.04(A)(7). McGuire was also indicted on two counts of
rape (vaginal and anal) and one count of kidnapping.
{¶ 18} On December 8, 1994, the jury returned a guilty verdict on the
aggravated murder and specification charge. McGuire was also convicted of anal
rape and kidnapping. After a sentencing hearing, the jury recommended a sentence
1. The FBI crime laboratory had tried to perform testing in 1989. However, the FBI at the time
used the RFLP technique, which requires a greater amount of genetic material. The FBI was unable
to extract sufficient DNA from the sperm cells for RFLP testing.
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of death for the aggravated murder. The trial judge sentenced the appellant to death,
and the court of appeals affirmed.
{¶ 19} The cause is now before this court upon an appeal as of right.
__________________
Rebecca J. Ferguson, Preble County Prosecuting Attorney, K. Brent
Copeland, Assistant Prosecuting Attorney, and Michael L. Collyer, Special
Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm and Tracey A.
Leonard, Assistant Public Defenders, for appellant.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶ 20} Appellant has raised eighteen propositions of law for our
consideration, which we have fully reviewed according to R.C. 2929.05(A). (See
Appendix.) However, pursuant to State v. Poindexter (1988), 36 Ohio St.3d 1,
520
N.E.2d 568, and subsequent cases, we summarily reject, without discussing, the
merits of a number of appellant’s propositions of law, as they involve settled issues.
(Propositions of Law Three, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Sixteen,
Seventeen, and Eighteen.) Propositions of Law Two and Seven are waived. We
have also independently assessed the evidence relating to the death sentence,
balanced the aggravating circumstances against the mitigating factors, and
reviewed the proportionality of the sentence to the sentences imposed in similar
cases. As a result, we affirm the judgment of the court of appeals and uphold the
sentence of death.
PENALTY PHASE ERRORS
{¶ 21} In his fifth proposition of law, appellant raises a myriad of alleged
errors on the part of the prosecution, the trial court, and the court of appeals. Only
those issues that are properly preserved and which merit discussion will be
addressed.
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January Term, 1997
{¶ 22} McGuire argues that a number of statements made by the
prosecution during the penalty phase prejudiced his right to due process.
Specifically he points to the prosecutor’s and trial court’s comments that McGuire’s
failure to admit the crime demonstrated the appellant’s inability to be rehabilitated.
Appellant relies on State v. Tyler (1990), 50 Ohio St.3d 24, 41,
553 N.E.2d 576,
596, for the proposition that a comment by the state on the defendant’s lack of
remorse at sentencing is improper.
{¶ 23} Tyler, however, does not hold that the state cannot comment on the
lack of remorse whenever the defendant denies guilt. Rather, it holds that the state
cannot refute potential mitigating factors that the defense has not first placed in
issue. Id., citing State v. DePew (1988),
38 Ohio St.3d 275, 289,
528 N.E.2d 542,
557-558. In this case, McGuire specifically asserted his potential for rehabilitation
as a mitigating factor, and the state was entitled to rebut that factor by arguing that
McGuire’s denial of guilt was inconsistent with a potential for rehabilitation.
{¶ 24} McGuire also asserts that the court of appeals erred because it failed
to consider the testimony of Mary Beedy, who testified concerning McGuire’s
disciplinary record in prison. Her testimony was not mentioned in the court of
appeals’ opinion. However, McGuire “erroneously assumes that evidence that is
not specifically mentioned in an opinion was not considered.” State v. Phillips
(1995), 74 Ohio St.3d 72, 102,
656 N.E.2d 643, 669-670. A court of appeals is not
required to explain its reasons in finding that the aggravating circumstances
outweigh the mitigating factors. R.C. 2929.05(A). Moreover, our independent
review cures any error. State v. Hill (1996),
75 Ohio St.3d 195, 211,
661 N.E.2d
1068, 1083. Appellant’s fifth proposition of law is overruled.
EVIDENTIARY ISSUES
{¶ 25} McGuire alleges in Proposition of Law Six that the state introduced
gruesome and cumulative photographs of the victim’s body that were irrelevant and
prejudicial to appellant. In State v. Maurer (1984), 15 Ohio St.3d 239, 266, 15
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OBR 379, 402, 473 N.E.2d 768, 792, we held that photographs of the body or crime
scene were admissible if relevant and the danger of material prejudice to a
defendant was outweighed by their probative value. Furthermore, the photographs
must not be repetitive or cumulative. A trial court’s decision to admit photographs
of the victim’s injuries will be upheld absent an abuse of discretion. State v. Slagle
(1992),
65 Ohio St.3d 597, 602,
605 N.E.2d 916, 923.
{¶ 26} In this case, none of the eleven photographs admitted was so
gruesome that the danger of prejudice outweighed their probative value. The
photographs were relevant in depicting the crime scene and illustrative of the
coroner’s autopsy report. Certain photographs which showed the incision in the
victim’s neck opened up during the autopsy and which showed a metal probe
protruding from the severed artery were not misleading and were probative, since
they illustrated the manner in which the wound was inflicted. State v. Murphy
(1992), 65 Ohio St.3d 554, 579,
605 N.E.2d 884, 904-905. Several of the
photographs may have been repetitive. However, we find that any error in
admitting repetitive photographs was harmless.
{¶ 27} Appellant also alleges that it was error for the court to submit
Detective Swihart’s taped interview with McGuire to the jury during its
deliberations. McGuire claims that the interview, which was played during trial,
was overly emphasized when the court allowed the tape into the jury room.
{¶ 28} However, there is no error in allowing the jury to view or hear for a
second time an exhibit properly admitted into evidence. State v. Loza (1994), 71
Ohio St.3d 61, 79-80,
641 N.E.2d 1082, 1103; State v. Clark (1988),
38 Ohio St.3d
252, 257,
527 N.E.2d 844, 851. Sending properly admitted evidence into jury
deliberations rests within the sound discretion of the trial judge.
Id. In this case,
the judge did not abuse his discretion in allowing the jury access to the taped
interview. Therefore, appellant’s sixth proposition of law is meritless.
SUFFICIENCY OF EVIDENCE
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{¶ 29} In Proposition of Law Nine, the appellant argues that the state failed
to introduce sufficient evidence to prove all the elements of rape and felony murder
beyond a reasonable doubt.
{¶ 30} When a defendant challenges the sufficiency of evidence, we
determine “whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d
259,
574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia
(1979),
443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560. After reviewing the evidence
in this case, we find it sufficient to support appellant’s convictions.
{¶ 31} McGuire’s statements to the police tended to show guilt. He had
detailed knowledge of the crime, correctly stating how Joy was raped, the way she
was stabbed, where the crime took place, and where the knife was hidden. McGuire
explained that these details came from what Jerry Richardson had told him the day
after the murder, and that McGuire still remembered the details ten months later
when he decided to talk to the police. However, the state’s DNA expert testified
that Richardson could not be the sole source of sperm.
{¶ 32} The DNA evidence was consistent with McGuire’s guilt, since his
DNA possessed characteristics similar to the DNA of sperm found on the victim’s
body. The DNA did not conclusively eliminate Richardson or Kenny Stewart, but
they were possible sperm sources only if there was more than one source.
Furthermore, there was evidence that Kenny was at work at the time of the murder,
and Richardson could not have been driving his mother’s car as McGuire claimed.
{¶ 33} Additionally, McGuire admitted guilt to Willie Reeves and Shawn
Baird. Likewise, Jack Stapleton testified that McGuire accidentally implicated
himself in describing the murder to another inmate.
{¶ 34} Sufficient evidence was also presented indicating that McGuire was
the principal offender. The DNA evidence implicated McGuire as the source of
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semen found on Joy’s body. Jerry Richardson denied any involvement in the
murder, and there was also testimony that Richardson did not have access to the car
that McGuire claimed Richardson used in the commission of the rape and murder.
Willie Reeves also testified that when McGuire admitted to the rape and murder,
he made no mention of any accomplices. Finally, there was evidence that Kenny
Stewart was at work on the day of the murder and therefore could not have been an
accomplice to the crime.
{¶ 35} There was also sufficient evidence to prove rape. Reeves testified
that McGuire told him that Joy became hysterical because “he wanted to have sex
with her, and she didn’t want to, so he did it anyway.” Moreover, the testimony of
Lindloff, Reeves, and Stapleton shows that McGuire consistently used the word
“rape” to describe what was done to Joy. The jury could infer from this evidence
that the sexual contact was compelled by force or threat of force.
{¶ 36} Finally, the nature of the wound indicates specific intent to kill.
McGuire also told Reeves that he killed Joy to avoid going to jail. Thus, there was
sufficient evidence to convict appellant, and we reject his ninth proposition of law.
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 37} In his eighth proposition of law, McGuire contends that his counsel
in the court of appeals rendered ineffective assistance. Performance by appellate
counsel will not be deemed ineffective unless that performance falls below an
objective standard of reasonable representation and prejudice arises from counsel’s
performance. State v. Bradley (1989), 42 Ohio St.3d 136,
538 N.E.2d 373,
paragraph two of the syllabus.
{¶ 38} Appellant first raises counsel’s failure to challenge the
constitutionality of Ohio’s death penalty statute. McGuire acknowledges that this
court has repeatedly rejected attacks on the death penalty statute, but argues that
appellate counsel should have preserved the issue for federal habeas review.
McGuire cites a case from the Seventh Circuit on preserving issues for habeas
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January Term, 1997
review. Freeman v. Lane (C.A.7, 1992), 962 F.2d 1252. However, the same court
has also stated that a “failure to raise what appeared [at the time] to be a losing
issue” is not deficient. Lilly v. Gilmore (C.A.7, 1993),
988 F.2d 783, 788.
{¶ 39} Next, McGuire argues that appellate counsel should have assigned
as error the trial court’s instructions on purpose, reasonable doubt, and two issues
relating to the death-qualification of the venire. But each of these issues was
waived at trial and we find no plain error.
{¶ 40} McGuire also complains that appellate counsel did not assign as
error the trial court’s failure to instruct the jury in mitigation on the nature and
circumstances of the offense; the history, character, and background of the
offender; and any other relevant factors. The court erred in not giving this
instruction. The court did, however, give a list of specific factors for the jury to
consider under R.C. 2929.04(B)(7). The only particular factor McGuire now claims
that the jury could not consider under this list is McGuire’s history of marijuana
use. Under the circumstances of this case, reasonable appellate counsel could have
decided that a history of marijuana use was of such little mitigation that the error in
instructing the jury was harmless.
{¶ 41} McGuire argues that appellate counsel should have raised the
ineffectiveness of trial counsel as set forth in McGuire’s seventh proposition of law.
McGuire first asserts that trial counsel failed to adequately voir dire potential jurors.
Specifically, he complains that counsel did not examine them sufficiently to
determine whether they were capable of considering all the mitigating factors.
However, trial counsel is in a better position than is a reviewing court to decide
how deeply to probe the views of a prospective juror. Bradley, 42 Ohio St.3d at
143-144,
538 N.E.2d 381. Furthermore, trial counsel did ask the veniremen
whether they could consider mitigating circumstances, as opposed to automatically
imposing the death penalty, and counsel could reasonably decide that it was
unnecessary to ask prospective jurors whether they would find specific factors to
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be mitigating. Cf. State v. Wilson (1996), 74 Ohio St.3d 381, at 385-387,
659
N.E.2d 292, 300-301. Since trial counsel were not deficient, McGuire’s appellate
counsel correctly decided to forgo raising this issue.
{¶ 42} Additionally, McGuire asserts that trial counsel were ineffective,
since they failed to object to the reasonable doubt and purpose instructions at trial.
However, a reasonable attorney would have had no basis to object to the instruction
on reasonable doubt. State v. Campbell (1994), 69 Ohio St.3d 38, 53,
630 N.E.2d
339, 352-353. As for the purpose instruction, “counsel could reasonably have
thought the trial court’s strong instructions on specific intent to kill were sufficient
to protect their client.”
Id. at 49,
630 N.E.2d at 350. Since McGuire failed to show
a reasonable probability that but for counsel’s failure to object, the trial would have
been different, appellate counsel were justified in not raising this issue.
{¶ 43} Appellant argues that appellate counsel should have raised the fact
that trial counsel failed to seek before trial the merger of the kidnapping and rape
charges. However, R.C. 2941.25(A) states, “Where the same conduct by defendant
can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.” Allied offenses of similar import do not
merge until sentencing, since a conviction consists of verdict and sentence. See
State v. Osborne (1976), 49 Ohio St.2d 135, 144,
3 O.O.3d 79, 83-84,
359 N.E.2d
78, 85, vacated on other grounds (1978),
438 U.S. 911,
98 S.Ct. 3136,
57 L.Ed.2d
1155; State v. Waddy (1992),
63 Ohio St.3d 424, 447,
588 N.E.2d 819, 836.
Therefore, reasonably competent trial counsel would not have sought the merger of
allied offenses before trial, and appellate counsel correctly ignored this issue.
{¶ 44} McGuire also claims that appellate counsel were ineffective for not
raising a number of alleged penalty-phase errors made by trial counsel. First, he
claims “inadequate preparation and presentation of mitigation evidence,” because
counsel should have hired a “mitigation specialist” to gather mitigating evidence.
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January Term, 1997
However, he cites no authority that this is a requirement of effective assistance, and
we hold that it is not. He further complains that trial counsel should have called
more that just the two members of McGuire’s family to testify in the penalty phase.
But the record does not show that this resulted from inadequate investigation or
incompetent decisionmaking. In addition, McGuire claims that Dr. Kuehnl, the
defense psychologist who testified on his behalf, was inadequately prepared and
should have performed routine tests to determine whether McGuire was suffering
a mental disorder. McGuire appears to blame defense counsel for this, but the
record provides no basis to do so. Kuehnl may have decided that such tests were
unnecessary. If so, it seems reasonable that counsel would defer to the
psychologist’s professional judgment. Given the difficulty of proving ineffective
assistance of trial counsel and the weakness of appellant’s claims, McGuire’s
appellate counsel were not deficient in failing to raise the issue of ineffective trial
counsel.
{¶ 45} Appellant contends that trial counsel failed to effectively argue
residual doubt. This is based on the fact the counsel did not attempt to admit a
statement made by Joy’s husband Kenny that he had anal intercourse with Joy three
or four days before the murder. Appellant wanted this statement admitted to
demonstrate that Kenny was the source of the semen found on Joy’s body at the
time of the murder. This statement was correctly deemed inadmissible hearsay and
was not admitted at trial. McGuire argues, however, that even if this statement was
inadmissible in the guilt phase, it was admissible in the penalty phase because there,
“the Rules of Evidence do not strictly apply.” State v. Landrum (1990), 53 Ohio
St.3d 107, 115,
559 N.E.2d 710, 720.
{¶ 46} However, Kenny’s statement was not strong evidence in McGuire’s
favor. The statement that Kenny had consensual sex three to four days before the
murder was not against his interest, as was the case in Landrum, where the
statement was deemed admissible. No physical or other evidence corroborated the
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fact that Kenny was the source of the semen found on Joy’s body, unless there were
two assailants. Kenny was at work at the time of the murder, and McGuire himself
accused Jerry Richardson of the murder, not Kenny. As a result, McGuire has failed
to show prejudice. His counsel’s failure to proffer the statement in the penalty
phase does not undermine confidence in the outcome. For the same reasons, such
facts discount McGuire’s argument in Proposition of Law One that the exclusion
of Kenny Stewart’s statement denied appellant due process under the United States
Supreme Court’s decision in Chambers v. Mississippi (1973), 410 U.S. 284,
93
S.Ct. 1038,
35 L.Ed.2d 297. Chambers held that the hearsay rule should not be
mechanistically applied, and an excessively strict application of the hearsay rule
that excludes highly reliable evidence may deny an accused due process. However,
unlike Chambers, these facts indicate that the excluded hearsay statement in this
case is not highly reliable evidence. Accordingly, Proposition of Law One, which
argues that the evidence was wrongly excluded at the guilt phase, is also overruled.
{¶ 47} McGuire argues that appellate counsel should have argued the legal
insufficiency of the evidence. Having found above that the state introduced
sufficient evidence as a matter of law to support McGuire’s conviction, we hold
that appellate counsel’s failure to argue this issue did not prejudice McGuire.
{¶ 48} McGuire contends that appellate counsel should have argued that the
R.C. 2929.04(A)(7) felony-murder specification “duplicates and fails to narrow”
the offense of felony-murder under R.C. 2903.01(B). Ohio precedent is clearly
against McGuire, so he again argues that appellate counsel may have abandoned a
federal constitutional claim. Our repeated holdings on this issue obviously mean
that we believe the claim should fail in federal court too. There is no need to
preserve futile claims.
{¶ 49} Next, appellant argues that appellate counsel should have challenged
the admissibility of Willie Reeves’s testimony that “I guess [McGuire] was gonna
make it look like someone else did it.” However, McGuire failed to challenge it at
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trial. No prejudice exists, since appellate counsel’s failure to challenge this single,
relatively insignificant statement by Reeves does not undermine confidence in the
fairness or reliability of the appeal.
{¶ 50} McGuire further contends that appellate counsel should have
challenged the rebuttal testimony of Shirley Dinkins as irrelevant or inadmissible,
apparently under Evid.R. 403(A) and 611(A). However, Evid.R. 401 broadly
defines “relevance,” and judges have broad discretion in admitting or excluding
evidence, and controlling the order of interrogating witnesses. We hold that the
trial court committed no error.
{¶ 51} Finally, McGuire complains that his appellate counsel inadequately
raised three issues. In the court of appeals, the eleventh assignment of error
consisted of twenty-one alleged trial errors, supported only by citation to the record.
Appellate counsel did not explain why the alleged errors were errors or how they
had prejudiced McGuire. The assignment of error alleged that taken together, all
of the errors denied appellant a fair trial. Pursuant to App.R. 12(A)(2), the court of
appeals refused to address fourteen of these issues.
{¶ 52} McGuire now singles out three of those fourteen issues and argues
that appellate counsel should have fully briefed them. He contends once more that
appellate counsel “may have abandoned valid federal constitutional claims.”
Again, we hold that there was no need to preserve these futile claims.
{¶ 53} McGuire has not shown that appellate counsel rendered ineffective
assistance with respect to any of these issues by showing both deficient
performance and prejudice. Accordingly, McGuire’s eighth proposition of law is
overruled.
MIRANDA ISSUE
{¶ 54} In his tenth proposition of law, McGuire claims that his statements
to law enforcement officers should have been suppressed because he was not
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advised of his rights. See Miranda v. Arizona (1966), 384 U.S. 436,
86 S.Ct. 1602,
16 L.Ed.2d 694.
{¶ 55} McGuire’s initial interview occurred with corrections officer
Goodwin after McGuire repeatedly asked the officer that he be allowed to talk to
detectives Lindloff and Swihart. Goodwin did not read appellant his Miranda
rights. Goodwin took McGuire to a booking room, then asked whether McGuire
had an attorney, “and he stated no, that he wanted to give me a statement on the
murder case.” McGuire proceeded to give a voluntary statement concerning the
murder.
{¶ 56} Though Goodwin did not advise McGuire of his Miranda rights, it
was unnecessary to do so. Miranda does not affect the admissibility of
“[v]olunteered statements of any kind.” 384 U.S. at 478,
86 S.Ct. at 1630,
16
L.Ed.2d at 726. Furthermore, appellant initiated the discussion with police and
volunteered the information. There was no evidence that Goodwin even asked any
questions during the statement. Thus, appellant was not subject to custodial
interrogation and was not entitled to Miranda warnings. State v. Roe (1989),
41
Ohio St.3d 18, 22,
535 N.E.2d 1351, 1357.
{¶ 57} Further interviews with McGuire all were proceeded by valid
Miranda warnings and waivers by McGuire. McGuire claims that he did not
voluntarily waive his rights due to his lack of education and illiteracy. However,
the record of the suppression hearing contains no evidence about McGuire’s lack
of education, nor is there any evidence that officers used any coercive tactics in
obtaining statements.
{¶ 58} In any event, the totality of the circumstances indicates that McGuire
voluntarily waived his rights. He repeatedly begged to talk to detectives and tried
to obtain concessions in exchange for information. He also gave a self-exculpatory
version of events. The record depicts a man who voluntarily cooperated, or
16
January Term, 1997
pretended to for his own purposes, not one who was coerced. Therefore, McGuire’s
tenth proposition lacks merit.
INDEPENDENT SENTENCE REVIEW
{¶ 59} In accordance with R.C. 2929.05(A), we must now independently
weigh the aggravating circumstances against the mitigating factors in this case, as
well as determine whether the sentence is proportionate to death sentences in
similar cases.
{¶ 60} The evidence in this case establishes beyond a reasonable doubt that
appellant committed murder while committing, attempting to commit, or fleeing
immediately after committing or attempting to commit rape, and was the principal
offender, the specification set forth in R.C. 2929.04(A)(7).
{¶ 61} In mitigation, the appellant presented evidence regarding his history,
character, and background pursuant to R.C. 2929.04(B). Furthermore, appellant
offered the following factors for the jury to consider under R.C. 2929.04(B)(7): any
lingering or residual doubts about the defendant’s guilt of the offense charged or an
aggravating circumstance; the defendant’s potential for rehabilitation; the ability to
make a well-behaved and peaceful adjustment to life in prison; the ability to lead a
useful life behind bars if sentenced to life imprisonment; the defendant’s devotion
to, and care of, his family members; whether the defendant was the victim of
childhood abuse; whether the defendant was deprived of parental nurturing. The
appellant presented no evidence of any mitigating factors under the specific factors
of R.C. 2929.04(B)(1) through (6).
{¶ 62} Initially, appellant offered residual doubt as a mitigating factor for
the jury to consider in the penalty phase of his trial. Residual doubt has been
described as “a lingering uncertainty about facts, a state of mind that exists
somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ”
Franklin v. Lynaugh (1988), 487 U.S. 164, 188,
108 S.Ct. 2320, 2335,
101 L.Ed.2d
155, 175 (O’Connor, J., concurring). In past cases, this court has held that residual
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doubt could be a mitigating factor. E.g., State v. Watson (1991), 61 Ohio St.3d 1,
572 N.E.2d 97; State v. Richey (1992),
64 Ohio St.3d 353, 372,
595 N.E.2d 915,
931; State v. Gillard (1988),
40 Ohio St.3d 226, 234,
533 N.E.2d 272, 281.
However, we recently held that regardless of this, defendant is not entitled to an
instruction on residual doubt. State v. Garner (1995),
74 Ohio St.3d 49, 56-57,
656
N.E.2d 623, 632.
{¶ 63} The United States Supreme Court in Franklin v. Lynaugh, supra,
held that states are not required to allow a defendant the opportunity to argue
residual doubt as a mitigating circumstance. The court stated that residual doubt
did not have to be considered as a mitigating factor because it was not relevant to
the defendant’s character, record, or any circumstances of the offense. Lynaugh,
487 U.S. at 174,
108 S.Ct. at 2327,
101 L.Ed.2d at 166.
{¶ 64} R.C. 2929.04(B) states that the nature and circumstances of the
offense and the history, character, and background of the offender shall be
considered in weighing against the aggravating circumstances of the crime. The
statute also lists six specific factors to be considered, as well as a seventh factor that
allows the sentencing body to consider “[a]ny other factors that are relevant to the
issue of whether the offender should be sentenced to death.” As Justice Resnick
astutely noted in her dissent in Watson, residual doubt is mentioned nowhere in this
statutory scheme, and further, cannot be considered under the catchall factor of R.C.
2929.04(B)(7). That is because R.C. 2929.04(B)(7) must be read in relation to R.C.
2929.04(B), and allows consideration only of those other factors relevant to the
issue of whether the offender should be sentenced to death, that is, only those
factors relating to the nature and circumstances of the offense, and the history,
character, and background of the offender. Watson, 61 Ohio St.3d at 19,
572
N.E.2d at 112. Residual or lingering doubt as to the defendant’s guilt or innocence
is not a factor relevant to the imposition of the death sentence because it has nothing
to do with the nature and circumstances of the offense or the history, character, and
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January Term, 1997
background of the offender. Id. See, also, King v. Florida (1987),
514 So.2d 354,
358; People v. McDonald (1995),
168 Ill.2d 420, 456,
214 Ill.Dec. 125, 140,
660
N.E.2d 832, 847; State v. Walls (1995),
342 N.C. 1, 52-53,
463 S.E.2d 738, 765-
766.
{¶ 65} Our system requires that the prosecution prove all elements of a
crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant
is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict
by recommending mercy in case a mistake has occurred. Watson, 61 Ohio St.3d at
20,
572 N.E.2d at 112 (Resnick, J., dissenting). Residual doubt casts a shadow over
the reliability and credibility of our legal system in that it allows the jury to secondguess its verdict of guilt in the separate penalty phase of a murder trial. “Thus, if
residual doubt is reasonable and not simply possible or imaginary, then an accused
should be acquitted, and not simply have his death sentence reversed.”
Id.
{¶ 66} Residual doubt is not an acceptable mitigating factor under R.C.
2929.04(B), since it is irrelevant to the issue of whether the defendant should be
sentenced to death. Therefore, Proposition of Law Four, urging us to vacate the
death penalty on the basis of residual doubt, is overruled.
{¶ 67} Apart from inappropriately relying on residual doubt, appellant
presented a number of other factors offered in mitigation. Doris Newton,
McGuire’s mother, and Tonya Cross, his half-sister, testified about McGuire’s
turbulent childhood. The defendant was born in 1960. His parents divorced two
years later, leaving McGuire in the sole care of his mother. McGuire’s father took
his older brother away, and McGuire had little contact with them after that, except
when he would run away from home to see them.
{¶ 68} McGuire lived with his mother until he was eighteen. During that
time, his mother was involved with several men, some of who physically beat her
in front of the appellant, who was required on occasion to run for help. His mother
and half-sister testified that these men did not abuse the appellant physically;
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however, they did inflict mental abuse by calling McGuire names, yelling at him,
and generally treating him poorly. Some of these men, however, were good to the
defendant, and one continued to be available to help him even after the marriage
with appellant’s mother ended.
{¶ 69} Defendant was also moved frequently, attending various schools, but
eventually dropping out after ninth grade. Defendant began using marijuana at the
age of nine and continued doing so until his incarceration in 1990. While
imprisoned, appellant has taken strides to improve his education. He has also
committed only minor infractions while incarcerated.
{¶ 70} Appellant has not demonstrated that the factors listed as mitigation
outweigh the aggravated nature of the murder. While appellant’s mitigation
evidence is entitled to some weight, it is insufficient to overcome the aggravating
circumstance in this case, that defendant committed rape in conjunction with
murder. We therefore conclude under our independent review that the aggravating
circumstances outweigh the mitigating factors in this case.
{¶ 71} Finally, R.C. 2929.05(A) requires that we review the sentence in this
case and determine whether it is proportionate to the sentence imposed in similar
cases. This court has upheld the death sentence in a number of cases where only a
single felony-murder specification was present. State v. Phillips (1995), 74 Ohio
St.3d 72,
656 N.E.2d 643; State v. Fox (1994),
69 Ohio St.3d 183,
631 N.E.2d 124;
State v. Simko (1994),
71 Ohio St.3d 483,
644 N.E.2d 345. Thus, appellant’s death
sentence in this case is neither excessive nor disproportionate.
{¶ 72} Accordingly, we affirm both appellant’s convictions and sentence of
death.
Judgment affirmed.
DOUGLAS, RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., and PFEIFER, J., concur in judgment only.
__________________
20
January Term, 1997
PFEIFER, J., concurring in judgment only.
{¶ 73} The death penalty is special. Ohio’s death penalty statutory scheme,
with its numerous and high hoops, is less a protection for defendants than it is a
protection for our status as a civilized society. No one could deny that the execution
of an innocent person would be the ultimate failure of our justice system. The
mitigating factor of residual doubt reaches that deepest, most basic of concerns.
{¶ 74} The majority’s contention that R.C. 2929.04(B) does not allow for
the consideration of residual doubt is simply wrong. R.C. 2929.04(B) instructs the
jury to consider “the nature and circumstances of the offense, the history, character,
and background of the offender,” and the seven statutory factors, the seventh of
which calls for a consideration of “[a]ny other factors that are relevant to the issue
of whether the offender should be sentenced to death.” (Emphasis added.) The use
of the words “any other” in R.C. 2929.04(B)(7) specifically calls for a consideration
of factors not considered in any other portion of R.C. 2929.04(B). What factor
could be more relevant than identity?
{¶ 75} Randall Dale Adams would certainly argue for its relevance. Adams
was sent to Texas’s death row for the murder of a Dallas policeman in 1976. See
Radelet, Bedau & Putnam, In Spite of Innocence: Erroneous Convictions in Capital
Cases (1992), Chapter 3. Adams, who had recently moved to Dallas from Grove
City, Ohio, had met sixteen-year-old David Harris on the morning of the day before
the murder. They spent the day together, driving around Dallas. They disputed
what occurred in the evening. Adams claimed that Harris dropped him off near his
motel at around 9:30 that evening. Harris testified that he and Adams went to a late
show at a drive-in theater, and that after that, when the pair were pulled over shortly
after midnight by police for driving without headlights, Harris slumped unseen in
the front seat while Adams shot one of the officers in cold blood. The jury believed
Harris, and the judge sentenced Adams to death.
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{¶ 76} By chance, Adams’s case caught the attention of filmmaker Errol
Morris. Morris’s film about the case, “The Thin Blue Line” (1988), generated
publicity in the case and featured self-incriminating footage of Harris, filmed while
he was serving time on death row for another murder. On March 21, 1989, Adams
was finally released.
{¶ 77} Certainly, residual doubt is an appropriate consideration in only a
few cases. Still, its use should not be considered “illogical.” It is entirely logical
to be certain beyond a reasonable doubt as to a man’s guilt, yet not be certain
enough to send him to his death. Residual doubt acknowledges our humanity—our
ability not just to spit out data, but to recognize the subtle shadings that are a part
of life. The factoring in of humanity when dealing with its ultimate decision is both
relevant and logical.
{¶ 78} Residual doubt, when present, only spares a man from death—it
does not leave him walking the streets. A life sentence leaves him still with the
prospect of no prospects, alive and dead at the same time. If, as a civilized society,
we are to be certain of anything, it must be that we are sending the correct person
to his death. Residual doubt is not for every case, and not for the present one. But
I will not be a part of removing the concept from the case for which it is right.
MOYER, C.J., concurs in the foregoing opinion.
__________________
APPENDIX
{¶ 79} Proposition of Law One: “The trial court violates the accused’s right
to compulsory process under the Sixth and Fourteenth Amendments to the United
States Constitution when it excludes evidence that tends to show that someone other
than the accused was the source of the semen taken from the victim in a trial for
felony murder and rape. The exclusion of such evidence also violates the accused’s
right to due process under the Fourteenth Amendment to the United States
Constitution.”
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January Term, 1997
{¶ 80} Proposition of Law Two: “A capital defendant’s right to fully
individualized and reliable sentencing under the Eighth and Fourteenth
Amendments to the United States Constitution is violated when the trial court’s
instructions on mitigating factors preclude the jury’s consideration of the history,
character and background of the defendant, the nature and circumstances of the
offense and nonstatutory mitigating factors. A preclusive jury instruction on
mitigating factors also infringes a capital defendant’s liberty interest in Ohio
Rev.Code Ann. § 2929.04(B) (Anderson 1993) as protected by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.”
{¶ 81} Proposition of Law Three: “Appellant McGuire’s right to a reliable
capital sentencing phase was undermined because the trial court improperly led the
jury to believe that it was not responsible for its death penalty verdict in violation
of the Eighth and Fourteenth Amendments to the United States Constitution.”
{¶ 82} Proposition of Law Four: “Dennis McGuire’s death sentence is
inappropriate because there is residual doubt whether he was the principal offender
in Joy Stewart’s murder. This court should vacate Mr. McGuire’s death sentence
pursuant to its independent review under Ohio Rev.Code Ann. § 2929.05(A).”
{¶ 83} Proposition of Law Five: “Appellant McGuire’s death sentence is
unreliable in violation of the Eighth and Fourteenth Amendments to the United
States Constitution as the result of penalty phase and sentencing errors. The penalty
phase and sentencing errors also infringed appellant’s right to due process under
the Fourteenth Amendment.”
{¶ 84} Proposition of Law Six: “The cumulative effect of evidentiary errors
that pervaded this trial deprived appellant of a reliable trial and fair sentencing
determination in violation of his rights guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution and Article I, §§ 2, 9, 10,
16 of the Ohio Constitution.”
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{¶ 85} Proposition of Law Seven: “Defense Counsel’s actions and
omissions at Mr. McGuire’s capital trial deprived him of the effective assistance of
trial counsel as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the
United States Constitution and Article I, §§ 9, 10 and 16 of the Ohio Constitution.”
{¶ 86} Proposition of Law Eight: “Appellant McGuire’s right to due
process under the Fourteenth Amendment to the United States Constitution was
violated by the ineffective assistance of counsel in the court of appeals.”
{¶ 87} Proposition of Law Nine: “The state failed to introduce sufficient
evidence to prove all the elements of rape and felony murder beyond a reasonable
doubt. As a result appellant was deprived of his right to due process of law under
the Fourteenth Amendment of the United States Constitution as well as Article I,
Section 16 of the Ohio Constitution.”
{¶ 88} Proposition of Law Ten: “The trial court erred in failing to suppress
appellant McGuire’s statement in violation of his rights guaranteed by the Fifth and
Fourteenth Amendments of the United States Constitution as well as Article I,
Sections 10 and 16 of the Ohio Constitution.”
{¶ 89} Proposition of Law Eleven: “The accused’s right to due process
under the Fourteenth Amendment to the United States Constitution is violated when
the state is permitted to convict upon a standard of proof below the required
standard of proof beyond a reasonable doubt.”
{¶ 90} Proposition of Law Twelve: “A capital defendant’s right to due
process under the Fourteenth Amendment is violated when the prosecutor seeks
commitments from the prospective jurors at voir dire to impose the death penalty
in the case before them. A capital defendant’s right to a reliable death sentence and
to due process is also violated when the trial court death qualifies the prospective
jurors.”
{¶ 91} Proposition of Law Thirteen: “A capital defendant’s due process
liberty interest in Ohio Rev.Code Ann. § 2945.25(C) is violated when a prospective
24
January Term, 1997
juror with conscientious objections to capital punishment is removed from the jury
panel unless the prospective juror is unequivally [sic] opposed to capital
punishment under all circumstances.”
{¶ 92} Proposition of Law Fourteen: “A capital defendant’s right to reliable
sentencing under the Eighth and Fourteenth Amendments to the United States
Constitution is violated when the trial court refuses to instruct the jury that it may
consider mercy in its penalty phase deliberations.”
{¶ 93} Proposition of Law Fifteen: “A charge that permits the jury to
convict the defendant upon a strict liability standard when the defendant is charged
with a specific intent offense, violates the Sixth and Fourteenth Amendments to the
United States Constitution.”
{¶ 94} Proposition of Law Sixteen: “A criminal defendant’s right to due
process under the Fourteenth Amendment to the United States Constitution is
violated when the jury is instructed that the defendant’s purpose to kill is presumed
from the predicate facts of the offense. A jury charge that presumes the mens rea
element from the predicate facts also usurps the jury’s role of fact finder in violation
of the Sixth and Fourteenth Amendments to the United States Constitution.”
{¶ 95} Proposition of Law Seventeen: “It is error for the trial court to
impose a death sentence on appellant McGuire based on his commission of a felony
murder when the aggravating circumstance merely duplicated the substantive
offense. This death sentence violates appellant McGuire’s rights under Eighth [sic]
and Fourteenth Amendments of the United States Constitution.”
{¶ 96} Proposition of Law Eighteen: “The Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16
of Article I of the Ohio Constitution establish the requirements for a valid death
penalty scheme. Ohio Revised Code, §§ 2903.01, 2929.02, 2929.21 [sic,
2929.021], 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory
provisions governing the imposition of the death penalty, do not meet the prescribed
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constitutional requirements and are unconstitutional, both on their face and as
applied.”
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26
