State v. Dennis

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. DENNIS, APPELLANT.
                      [Cite as State v. Dennis, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
     (No. 96-1376—Submitted July 7, 1997—Decided September 24, 1997.)
        APPEAL from the Court of Appeals for Summit County, No. 17156.
                                  __________________
        {¶ 1} During the early morning hours of June 5, 1994, defendant-appellant,
Adremy L. Dennis, and Leroy “Lavar” Anderson stopped Dean R. Pizer in the
Highland Square area of Akron and demanded money. Pizer escaped, even though
a shotgun blast was fired at him as he fled. Shortly thereafter, Dennis shot and
killed Kurt O. Kyle during a robbery in front of Kyle’s home at 818 Bloomfield
Road.     Dennis later admitted he shot Kyle during a robbery, and he was
subsequently convicted of aggravated murder, attempted aggravated murder and
aggravated robbery, and sentenced to death.
        {¶ 2} Late on Saturday, June 4, and in the early morning hours of Sunday,
June 5, Dennis and Anderson decided to go to a bar and “meet some chicks.”
Anderson spoke of “robbing somebody,” and the pair armed themselves with
weapons: Dennis with a sawed-off shotgun and Anderson with a .25 caliber
handgun. As the pair proceeded to the bar, the shotgun, according to Dennis,
accidentally went off. Dennis then reloaded the weapon. Before arriving at the
bar, the two smoked marijuana.
        {¶ 3} After some drinks, Anderson and Dennis left the bar and encountered
Dean Pizer in an alley near West Market Street and South Highland Avenue. The
“taller one” of the two, whom Pizer identified as Dennis, was wearing a long black
leather coat and told Pizer, “Give me your money. … Don’t try and run, don’t
try and run. You are going to die tonight, you are going to die.” Pizer testified that
                            SUPREME COURT OF OHIO




he went backwards, slid and rolled down a hill, then ran away unharmed. He heard
a gunshot “just left of me. There was a trash can or something got hit ….”
       {¶ 4} That same night, Kurt Kyle had raced at Barberton Speedway and
afterwards hosted several friends and family members at his home for a cookout
and socializing. Later, as one of his guests, Martin Eberhart, was leaving, Kyle
walked with him to his car where the two continued conversing for a short time.
While Eberhart was seated in his car talking with Kyle, they heard a loud noise,
which Kyle told Eberhart was a gunshot. About three minutes later, two black
males approached them in the driveway, out of the view of Kyle’s other guests.
The man Eberhart identified as Anderson was wearing a green and orange Miami
Hurricanes Starter jacket, and demanded money while pointing a gun at Eberhart’s
neck. Eberhart slowly reached under the car seat for his wallet and handed
Anderson $15.
       {¶ 5} At the same time, Dennis, whom Eberhart described as wearing a
long, three-quarter-length dark coat, asked Kyle for money.        However, Kyle
searched through his pockets and told Dennis that he had no money with him.
Dennis then pulled out a sawed-off shotgun and shot Kyle in the head at point-blank
range. Kyle died instantly of hypovolemic shock (loss of blood) due to a gunshot
wound that severed both carotid arteries. According to Eberhart, the two assailants
ran away together “sprinting very fast.”
       {¶ 6} Anita Foraker, who lived in the neighborhood, was out walking her
dog at around 1:30 a.m. that morning and heard a “loud pop type of sound.” About
a minute later, she observed two young black males headed in the opposite direction
running by her on the other side of Bloomfield Road. She heard one say to the
other, “Did you get it?”
       {¶ 7} A few days after the murder, Akron police received an anonymous
phone call stating that someone at 371 Grand Avenue knew about the homicide that
past weekend. Detective Donald L. Gaines and another detective went to the



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                                January Term, 1997




address, where they met Shirley Morgan and told her that a possible suspect was
staying at her house. Morgan invited the detectives in and gave them permission
to look around the house and to speak to her son, seventeen-year-old Lavar
Anderson. When the detectives went down to the basement, they noticed a Miami
Hurricanes jacket and a long, dark overcoat hanging up in the far corner on a
bedrail. At that time, they took Anderson into custody, and he provided detectives
information about the location of the murder weapon.
       {¶ 8} After procuring a search warrant, police seized several items from
Morgan’s basement, including the two coats, a .25 caliber pearl handle handgun, a
20 gauge sawed-off shotgun, and seven shotgun shells.
       {¶ 9} Upon completing the search of Morgan’s home, Gaines received a call
from two officers at 120 Burton Avenue, which was in the same general
neighborhood.     The police surrounded the house on Burton and thereafter
apprehended Adremy Dennis.
       {¶ 10} At the police station, Dennis was advised of his Miranda rights,
which he waived. Dennis told several versions as to his whereabouts on June 4-5,
1994 to Detectives Gaines, Lacy, and Offret. After Dennis’s second statement,
Gaines produced a sawed-off shotgun, which Dennis immediately claimed was his
own. In his fourth statement to detectives, Dennis admitted that he and Anderson
had planned some robberies that night and admitted holding up Pizer, Eberhart and
Kyle. However, while Dennis admitted aiming the sawed-off shotgun at Kyle, he
also claimed the gun went off accidentally. Dennis agreed to allow detectives to
tape his statement.
       {¶ 11} In his taped statement, Dennis said that he and Anderson had smoked
marijuana and then drank at a bar before the robberies and murder. While Dennis
admitted he fired the sawed-off shotgun three times that night, he asserted that each
shot was accidental and that he “could barely focus” when they came upon Kyle




                                         3
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and Eberhart. After shooting Kyle, Dennis claimed he almost fell down and that
Anderson had to help him flee the scene.
       {¶ 12} Yellow shotgun shell casings were found a few days after the
murder. One was found in the area where Pizer was accosted, the other was
discovered in front of Kyle’s home. Nancy E. Bulger, a forensic scientist with the
Bureau of Criminal Identification and Investigation (“BCI”), determined that the
two casings were fired from the sawed-off shotgun that Dennis identified as his
own.
       {¶ 13} The grand jury indicted Dennis on one count of aggravated murder,
one count of attempted murder, three counts of aggravated robbery, and one count
of possession of dangerous ordnance.         All of the counts carried a firearms
specification, and the dangerous ordnance charge also carried a physical-harm
specification. The aggravated murder count also carried two death specifications:
murder during an aggravated robbery, where Dennis was the principal offender
(R.C. 2929.04[A][7]); and murder committed as a course of conduct involving the
killing or attempt to kill two or more persons (R.C. 2929.04[A][5]).
       {¶ 14} A jury trial commenced December 12, 1994. After deliberation, the
jury found Dennis guilty as charged.
       {¶ 15} During the mitigation hearing, several witnesses testified on
Dennis’s behalf, including an aunt on his mother’s side, his foster mother, and a
psychologist, Dr. James L. Brown. Dr. Brown concluded that he found at least
three factors militating against imposing the death penalty on Dennis: (1) Dennis’s
development — he lacked effective “parenting” until he was about fifteen years
old; (2) Dennis’s intoxication at the time of the offense, due to consuming alcohol
and smoking marijuana dipped in embalming fluid, which further impaired his
judgment; and (3) Dennis’s youth.
       {¶ 16} Dennis gave unsworn testimony and claimed that he didn’t intend to
shoot Kyle, and that he “was drunk and nervous and scared and the gun went off



                                         4
                               January Term, 1997




and I ran.” Dennis expressed remorse for what he had done and stated that he was
sorry for what he had done to the Kyle family.
       {¶ 17} The parties stipulated that Dennis has no adult criminal record and
only two juvenile adjudications: criminal damaging and receiving stolen property.
       {¶ 18} The jury recommended the death penalty, and the trial court imposed
a death sentence on Dennis. The court also imposed consecutive and concurrent
sentences for Dennis’s other offenses. Upon appeal, the court of appeals affirmed
the convictions and sentence of death.
       {¶ 19} The cause is now before this court upon an appeal as of right.
                              __________________
       Maureen O’Connor, Summit County Prosecuting Attorney, Philip D.
Bogdanoff and Paul M. Maric, Assistant Prosecuting Attorneys, for appellee.
       Peter T. Cahoon and Nathan A. Ray, for appellant.
                              __________________
       ALICE ROBIE RESNICK, J.
       {¶ 20} In this appeal, Dennis has raised twenty-one propositions of law.
Finding none meritorious, we affirm his convictions.        In addition, we have
independently reviewed the record, weighed the aggravating circumstances against
the mitigating factors, and examined the proportionality of the death sentence in
this case to the penalty imposed in similar cases. Upon a complete review of the
record, we affirm Dennis’s convictions and sentences.
                                         I
                             Pretrial/Voir Dire Issues
       {¶ 21} In Proposition of Law No. 1, Dennis contends the trial court erred in
failing to suppress his oral statements to police. Dennis further submits that the
state failed to show that he was sober when he waived his Miranda rights, and
therefore under the totality of circumstances, the prosecution failed to demonstrate
that he understood his Miranda rights.




                                         5
                             SUPREME COURT OF OHIO




       {¶ 22} During the suppression hearing, Akron Police Lieutenant Robert
Offret testified that he and two other detectives interviewed Dennis after he had
been given Miranda warnings. In the taped interview, Dennis stated that he had
not been under a doctor’s care or on any medications, and had not consumed any
alcohol. However, Dennis admitted to smoking “two joints” of marijuana two
hours earlier. Nevertheless, Offret stated there wasn’t anything about Dennis’s
behavior that would have led him to believe that Dennis was intoxicated.
Moreover, Dennis’s responses in the taped interview do not exhibit any of the usual
symptoms of intoxication, such as slurred speech, inattentiveness, and inability to
understand questions.
       {¶ 23} Whether a statement was made voluntarily and whether an accused
voluntarily, knowingly, and intelligently waived his right to counsel and right
against self-incrimination are distinct issues. Both, however, are measured by the
totality-of-circumstances standard. State v. Clark (1988), 

,

.
       {¶ 24} A review of the tape and transcript indicates that after police read
Dennis each Miranda right, they asked him if he understood it, and he responded
affirmatively. In addition, Dennis initialed each line on the Miranda warning form,
acknowledging that he understood his rights, and he signed the waiver of rights.
Evidence of a written waiver form signed by the accused is strong proof that the
waiver was valid. Clark; see North Carolina v. Butler (1979), 

, 374-
375, 

, 

. Moreover, there is no
evidence that police subjected Dennis to threats or physical abuse, or deprived him
of food, sleep, or medical treatment. See State v. Cooey (1989), 

, 

.
       {¶ 25} Under the totality of circumstances, Dennis made a knowing,
voluntary, and intelligent waiver of his constitutional rights. Accordingly, we reject
Proposition of Law No. 1.



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                                January Term, 1997




       {¶ 26} In Proposition of Law No. 2, Dennis argues that the trial court erred
in failing to suppress items seized pursuant to a search warrant at the residence of
Shirley Morgan. Dennis asserts that he has standing to object to a search of
Morgan’s home, and that he had an expectation of privacy in the area where the
items were seized, since he allegedly had permission to spend part of the night there
on the night of the murder.
       {¶ 27} A few days after the Kyle murder, police received an anonymous
phone call supplying information regarding the whereabouts of a possible suspect
in the murder. After obtaining this information, police received permission from
Morgan to speak to her son, Lavar Anderson, and to look around her house for coats
that were reportedly worn by the suspects to the murder. After finding coats in the
basement that matched the description of the coats they sought, the police asked
permission to take them, but Morgan refused their request and said she needed to
talk to her attorney. At that time, police took Anderson into custody, and Anderson
later told them where he and Dennis hid the weapons in the basement after the
murder. Based on this information and their personal observations, police obtained
a search warrant for Morgan’s home and later seized the coats and the weapons
used in the robberies and murder.
       {¶ 28} Fourth Amendment rights are personal in nature and may not be
vicariously asserted by others. Alderman v. United States (1969), 

, 

, 

; Rakas v. Illinois (1978), 

, 

, 

; State v. Coleman (1989), 

, 

. A defendant bears the burden of proving
not only that the search was illegal, but also that he had a legitimate expectation of
privacy in the area searched. See Rawlings v. Kentucky (1980), 

,

, 

.
       {¶ 29} Dennis has failed to show that he had a reasonable expectation of
privacy in Morgan’s residence. While an overnight guest has standing to challenge




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the legality of a search, Minnesota v. Olson (1990), 

, 

, 

, there was no evidence that Dennis stayed overnight
or that he was residing at Morgan’s home at the time of the search. In fact, once
Morgan discovered that Dennis was in her house the night of the murder, she made
him go home.
        {¶ 30} Dennis has failed to demonstrate that he had standing to object to the
warrant or subsequent search. Coleman. Moreover, Morgan clearly had authority
over the premises that she permitted police to enter and view. See Illinois v.
Rodriguez (1990), 

, 

, 

.
The police had Morgan’s consent to search the premises, and the items seized were
therefore the fruits of a valid search. Accordingly, Proposition of Law No. 2 is not
well taken.
        {¶ 31} In Proposition of Law No. 5, Dennis contends that the court erred in
refusing to excuse juror Terri Harris once it discovered that she had been a victim
of crime.
        {¶ 32} During the jury’s penalty-phase deliberations, the trial court learned
that Harris had been a victim of sexual abuse as a child, when a detective asked the
court to momentarily excuse Harris from deliberations in order to sign a criminal
complaint.    The court brought Harris into chambers before the parties and
conducted a voir-dire examination of her at that time. Harris explained that she had
decided not to mention the sexual abuse during the original voir-dire examination
because she did not feel it fit the definition of violent crime. She reached this
conclusion after asking the trial judge’s bailiff during jury selection for a definition
of “violent crime.” Harris indicated that at that time, she concluded that her
experience was not “violent” when compared to murder, and, therefore, did not
bring it to the court’s attention.
        {¶ 33} The court questioned Harris extensively, and she was adamant that
her status as a victim of sexual abuse had nothing to do with what happened to the



                                           8
                                January Term, 1997




Kyle family or Dennis, and that she could separate the two experiences and be
impartial. The court asked defense counsel if they had anything they wished to put
on the record, and defense counsel indicated they did not. After Harris returned to
the jury room, counsel for both sides informed the court that just prior to trial they
became aware of the fact that Harris had been a witness to sexual abuse. Counsel
for both parties agreed that it probably wasn’t necessary for them to act upon it.
However, at the end of the trial, defense counsel filed a motion for mistrial upon
learning that Harris was a victim of sexual abuse, and not just a witness.
       {¶ 34} A trial court enjoys broad discretion in determining a juror’s ability
to be impartial. State v. Williams (1983), 

, 6 OBR 345, 351,

. The trial court’s decision to allow Harris to remain on the
jury did not amount to an abuse of discretion, especially in light of the court’s voir-dire examination of Harris conducted in chambers during penalty-phase
deliberations. See State v. Maurer (1984), 

, 15 OBR
379, 389, 

.         Accordingly, Proposition of Law No. 5 is
overruled.
       {¶ 35} In Proposition of Law No. 7, Dennis asserts the trial court erred in
permitting the prosecution’s peremptory challenges of two prospective jurors who
were African-Americans in violation of Batson v. Kentucky (1986), 

,

, 

. Dennis submits that the prosecution failed to
provide a neutral explanation for exercising peremptory challenges on prospective
jurors McGinnis and Dortch.
       {¶ 36} In order to state a prima facie case of purposeful discrimination
under Batson, an accused must demonstrate (1) that members of a recognized racial
group were peremptorily challenged, and (2) that the facts and circumstances raise
an inference that the prosecutor used the peremptory challenges to exclude
prospective jurors on account of their race. State v. Hernandez (1992), 

, 

; State v. Hill (1995), 

,




                                          9
                             SUPREME COURT OF OHIO




444-445, 

. If the accused makes a prima facie case of
discrimination, the state must then come forward with a neutral explanation. 

However, a trial court’s finding of no discriminatory intent “will not be reversed on
appeal absent a determination that it was clearly erroneous.” 

,

.
         {¶ 37} The trial court held that “with Batson in mind,” the state’s
peremptory challenges of prospective jurors McGinnis and Dortch were proper.
Moreover, the court’s ruling was not “clearly erroneous” under Hernandez. The
facts and circumstances underlying the prosecutor’s exercise of peremptories on
the two prospective jurors in issue do not appear to be racially motivated. Both
prospective jurors expressed opposition to the death penalty on religious grounds.
While, after defense questioning, both prospective jurors eventually opined that
they thought they could impose a death sentence, the fact remains that both were
still opposed to capital punishment on religious grounds.
         {¶ 38} The prosecutor explained that he exercised peremptory challenges
on McGinnis and Dortch based on their views of the death penalty. In addition, the
prosecutor cited the fact that Dortch stated she had a cousin who had been
murdered. Thus, the prosecutor gave a race-neutral explanation for the peremptory
challenges. Hill; Hernandez. Accordingly, Proposition of Law No. 7 is without
merit.
         {¶ 39} In Proposition of Law No. 9, Dennis argues that the prosecutor’s
systematic use of peremptory challenges to exclude prospective jurors who
expressed reservations about the death penalty deprived him of an impartial jury.
         {¶ 40} Once again, Dennis claims error in the exclusion of prospective
jurors McGinnis and Dortch from the panel. However, apart from excluding
prospective jurors based on gender or race, as discussed above, prosecutors can
exercise a peremptory challenge for any reason, without inquiry, and without a




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                                 January Term, 1997




court’s control. See, e.g., State v. Seiber (1990), 

, 

. Therefore, we overrule Proposition of Law No. 9.
        {¶ 41} In Proposition of Law No. 8, Dennis contends he was denied a fair
trial when prospective jurors Spencer and Williams were improperly excused for
cause based on their views on the death penalty.
        {¶ 42} In State v. Frazier (1995), 

, 

, we reaffirmed the standard in Wainwright v. Witt (1985), 

, 

, 

,
        “ ‘The proper standard for determining when a prospective juror may be
excluded for cause based on his views on capital punishment is whether the juror’s
views would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and oath.’ ”
        {¶ 43} Prospective juror Spencer stated unequivocally during voir dire that
she did not feel she could recommend the death sentence. She further stated that
she would have a “lot of trouble” imposing death, even if the court instructed the
jury that it was worthy of consideration. Spencer also indicated that she did not
feel she could put her beliefs aside and follow the law. When asked if she could
recommend the death penalty, Spencer replied, “I don’t feel I could really do that.”
        {¶ 44} Prospective juror Williams also indicated that based on religious and
moral grounds, she could not follow the law and recommend the death penalty.
After further questioning, Williams insisted that “[i]t will be a big problem for me
to sign and say that, yes, I believe in the death penalty or I believe this person should
be given the death penalty.”
        {¶ 45} We have previously stated that where the trial court is left with a
definite impression that a prospective juror would be unable to faithfully and
impartially apply the law, deference must be given to the trial judge who sees and
hears the prospective juror. State v. Beuke (1988), 

, 

. The trial court did not abuse its discretion in excusing the two




                                           11
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prospective jurors for cause.        Both expressed views that would prevent or
substantially impair them from fulfilling their duties as jurors. State v. Tyler (1990),

, 

. Accordingly, we overrule Proposition
of Law No. 8.
        {¶ 46} In Proposition of Law No. 3, Dennis argues the trial court erred in
denying his motion to sever the counts with which he was charged. Dennis asserts
that the charges against him regarding his encounter with Pizer are not sufficiently
related in point of time and circumstance with the Kyle murder-robbery.
        {¶ 47} Crim.R. 8(A) permits joinder of offenses that are a part of a common
scheme or plan, or part of a course of criminal conduct. Crim.R. 14, however,
requires a separate trial of counts if it appears that a defendant is prejudiced by a
joinder of offenses for trial.
        {¶ 48} In our view, Dennis’s claim must be rejected because he fails to
demonstrate how he was prejudiced by the joinder of counts. State v. Roberts
(1980), 

, 

, 

; State v.
Benner (1988), 

, 

. See, also, State v.
Lott (1990), 

, 

. Similar to the situation
presented in State v. Hamblin (1988), 

, 

, the
counts alleging the crimes committed against Pizer, Kyle, and Eberhart were
sufficiently related in point of time and circumstance. The crimes were the fruit of
Dennis and Anderson’s plan to rob some people that night. Both incidents occurred
within a few blocks and a few minutes of each other. See State v. Woodard (1993),

, 

. Moreover, the robbery and attempted
murder of Pizer strongly supports the inference that Dennis intended to kill Kyle,
thus negating Dennis’s assertion that the Kyle murder was accidental. Cf. Evid.R.
404(B). Thus, the Pizer robbery would have been admissible even if no joinder had
been accomplished, in order to prove intent and the multiple-murder death penalty
specification in the Kyle murder. In any event, the failure to sever the counts did



                                          12
                                January Term, 1997




not amount to an abuse of discretion. See Maurer, 

, 15 OBR
at 388-389, 

. Therefore, we reject Proposition of Law No.
3.
       {¶ 49} In Proposition of Law No. 6, Dennis complains that he was denied
due process when the trial court precluded defense counsel from questioning
prospective jurors about specific mitigating factors. However, as Dennis concedes,
we rejected this same argument in State v. Wilson (1996), 

, 385-
387, 

. Similar to Wilson, the trial court here allowed
adequate, detailed questioning of prospective jurors to expose faults that would
render a juror ineligible. No abuse of discretion is apparent, and, therefore, this
proposition of law is overruled.
                                          II
                                    Trial Issues
       {¶ 50} In Proposition of Law No. 11, Dennis contends that the trial court
erred in denying his Crim.R. 29(A) motion for acquittal based on insufficiency of
evidence. Dennis asserts that the charge of attempted aggravated murder of Pizer
is not supported by the evidence, and that, therefore, the attendant course of conduct
specification cannot be maintained.
       {¶ 51} When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most
favorable to the state could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia (1979), 

, 

, 

; State v. Jenks (1991), 

, 

, paragraph two of the syllabus. The verdict will not be disturbed unless
the appellate court finds that reasonable minds could not reach the conclusion
reached by the trier-of-fact. Jenks, 

, 

. See,
also, State v. Bridgeman (1978), 

, 

, 

,
syllabus.




                                         13
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       {¶ 52} At trial, Pizer testified that Dennis and another individual accosted
him with guns when he was in the Highland Square area on the night or early
morning hours of June 4-5, 1994. Dennis did most of the talking, and asked Pizer
for his money. Then, Dennis told him, “Don’t try and run, don’t try and run. You
are going to die tonight, you are going to die.” When Pizer fled the scene, he “heard
a gunshot just left of me. There was a trash can or something got hit.”
       {¶ 53} In his recorded statement, Dennis admitted that he and Anderson
held up a man near the bar in Highland Square. Dennis stated that when the victim
took off running, “I got the gauge [shotgun] out and … shot it again.”
       {¶ 54} One witness testified that two days after the shooting, he found a
yellow shotgun shell on the sidewalk near the bar in the Highland Square area. The
shotgun shell was determined to have been fired from the murder weapon.
       {¶ 55} Construing this evidence in a light most favorable to the state, a
rational factfinder could have found the essential elements of the attempted
aggravated murder charge and course-of-conduct specification proven beyond a
reasonable doubt. Therefore, we overrule Proposition of Law No. 11.
       {¶ 56} In Proposition of Law No. 17, Dennis asserts the trial court erred in
admitting what he claims were gruesome, prejudicial, and cumulative photographs.
       {¶ 57} Under Evid.R. 403 and 611(A), the admission of photographs and
similar evidence is left to the sound discretion of the trial court. Maurer, 

, 15 OBR at 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 the accused. Maurer at
paragraph seven of the syllabus; see, also, State v. Slagle (1992), 

, 

.
       {¶ 58} Dennis specifically objected to three of the five photos of the murder
victim admitted at trial. Thus, any error in the admission of the other two photos is




                                         14
                                 January Term, 1997




waived due to the lack of an objection. See 

,

.
       {¶ 59} One of the photos alleged to be objectionable, State Exhibit 18,
shows Kyle’s body on the ground in his driveway next to Eberhart’s car, with
Kyle’s hand in his pocket. This photo supports Eberhart’s testimony as to the
robbery, and that Kyle was searching through his pockets looking for money. State
Exhibit 19, a closer view of Kyle’s body, shows the wound on the right side of his
head, and his head in a pool of blood. This photograph corroborates Eberhart’s and
the expert’s testimony that Kyle was shot at point-blank range. It also supports
Eberhart’s and the coroner’s testimony as to the cause and immediacy of death, and
is probative of Dennis’s purposeful intent.
       {¶ 60} The last photo, State Exhibit 20, is arguably cumulative to the others,
especially State Exhibit 19. This photo, a close-up of Kyle’s head, clearly shows
the entrance wound from the shotgun blast. While this photo displays more explicit
detail in support of the state’s witnesses testimony, either this photo or State Exhibit
19 perhaps should have been excluded.
       {¶ 61} In view of the abundant evidence of Dennis’s guilt, his substantial
rights were not affected. In addition, any prejudicial impact this evidence may have
had on the sentencing phase is eliminated by this court’s independent review of the
sentence. State v. Lundgren (1995), 

, 

;
State v. Landrum (1990), 

, 

. Proposition
of Law No. 17 is without merit.
                                          III
                                Penalty Phase Issues
       {¶ 62} In Proposition of Law No. 4, Dennis argues the trial court erred in
denying his motion to merge the convictions of aggravated robbery of Eberhart and
Kyle into the allied offense conviction for aggravated murder. However, merger
pursuant to R.C. 2941.25 is not warranted in this case because aggravated robbery




                                          15
                             SUPREME COURT OF OHIO




is not an allied offense of similar import to aggravated murder. See State v. Moss
(1982), 

, 

, 

, paragraph two of the
syllabus; State v. Henderson (1988), 

, 

;
Frazier, 

, 

.
        {¶ 63} Dennis also claims error in the court’s failure to merge the attempted
aggravated murder of Pizer count with the course-of-conduct specification.
However, specifications required for the imposition of the death penalty do not, in
and of themselves, constitute separate criminal offenses. Therefore, a specification
cannot merge with a substantive offense. State v. Adams (1978), 

, 

, 

. “Since the specification
does not charge a separate offense and R.C. 2941.25(A) relates to instances where
the same conduct of the defendant constitutes allied offenses of similar import, that
statute is not applicable.” 

, 

, 

.
Accordingly, Proposition of Law No. 4 is overruled.
        {¶ 64} In Propositions of Law Nos. 10 and 13, Dennis argues that the trial
court erred in allowing victim-impact testimony by Craig Kyle, brother of the
decedent, and Doreen Kyle, decedent’s mother.
        {¶ 65} During the mitigation phase, Craig Kyle testified about the close
relationship he had experienced with his brother, as well as the good relationship
decedent had had with his parents. At the sentencing proceeding held after the jury
was discharged but before sentence was pronounced, Doreen Kyle made a
statement wherein she eulogized the accomplishments and character of her late son.
However, neither statement expressed any opinion or suggestion as to what
sentence should be imposed on defendant, and therefore did not constitute
prejudicial error.
        {¶ 66} In State v. Fautenberry (1995), 

, 

, this court recognized Payne v. Tennessee (1991), 

, 

, 

, and held that statements restricted to the impact the victim’s



                                         16
                               January Term, 1997




death has on family and friends did not constitute prejudicial error under the
circumstances therein. Nor do we think the statements in issue here run afoul of
the Fautenberry standard.
       {¶ 67} Moreover, the statement made by Doreen Kyle was made after the
jury was discharged, and thus could not have affected the jury’s sentence
recommendation. Even if it is assumed, as Dennis suggests, that the trial court
necessarily considered the testimony of Dennis Kyle’s mother in its sentencing, this
court will presume that the judge considered only the relevant, material, and
competent evidence in arriving at a judgment, unless the contrary affirmatively
appears from the record. State v. Post (1987), 

, 

; State v. Eubank (1979), 

, 

, 

. A review of the transcript and sentencing opinion reveals no
prejudice to Dennis. Therefore, we reject both Propositions of Law Nos. 10 and
13.
       {¶ 68} In Proposition of Law No. 12, Dennis claims error in the trial court’s
failure to give the jury a supplemental instruction pursuant to State v. Howard
(1989), 

, 

, when the jury indicated that it was
unable to reach a unanimous verdict.
       {¶ 69} At the close of the mitigation phase, the jury retired to deliberate
sometime during the afternoon. On that same day following their dinner break, the
jury sent a note to the court asking, “Judge Spicer, what do we do when we have
voted four times and we are unable to come to a unanimous verdict?” In the
presence of counsel for both parties, the court responded to the jury within fifteen
minutes as follows: “This has been a very short time of deliberation on a very major
case. You must not be discouraged and continue your deliberations. Reread the
instructions. Judge Spicer.”
       {¶ 70} In Howard, we rejected further use of the so-called Allen charge that
was a standard supplemental instruction given to juries which were deadlocked on




                                        17
                             SUPREME COURT OF OHIO




the question of conviction or acquittal. This court then adopted a new supplemental
instruction to be given to deadlocked juries in the trial phase of a case. This court
has not addressed the applicability of a Howard charge in the penalty phase of a
capital case, and therefore we need not address that issue here to resolve this
proposition.
       {¶ 71} The trial judge’s response was proper, neutral, and noncoercive
under the circumstances. The jury was not deadlocked, since it had deliberated
only a few hours before it posed the question in issue. Accordingly, we reject
Proposition of Law No. 12.
       {¶ 72} In Proposition of Law No. 14, Dennis asserts that the trial court erred
by making its sentence decision prior to defendant’s statement and the arguments
of counsel at the sentencing proceeding. Dennis asserts that the following statement
made by the court indicates its predisposition: “It’s my understanding at this point
that, obviously, we are here today for sentencing, and I have done my homework
and made my determinations.”
       {¶ 73} R.C. 2929.03(D)(3) requires the court to consider, inter alia,
relevant evidence, the statement of defendant and the arguments of counsel, before
imposing sentence.      However, the court’s statement cited above does not
necessarily indicate that the court ignored the statement of Dennis or the arguments
of counsel.    Dennis’s assertion to the contrary is merely speculative.       Even
assuming that Dennis raises a legitimate point, our independent review will readily
cure any perceived error in this vein. See State v. Lott, 

, 

. Therefore, we reject Proposition of Law No. 14.
       {¶ 74} In Proposition of Law No. 16, Dennis contends that the prosecutor
made an improper and inflammatory statement of personal opinion during closing
argument:
       “I urge you to give this man the same consideration he gave Kurt Kyle on
the morning of June 5, 1994, and if you do that, you will find that the aggravating



                                         18
                                January Term, 1997




circumstances outweigh the mitigating factors and you will return to this Court a
recommendation that the death sentence be imposed in this case and I ask you to
do that.”
       {¶ 75} Defense counsel did not object to this statement, and therefore
waived all but plain error. Slagle, 

, 

. Plain
error does not exist unless it can be said “that but for the error, the outcome of the
trial would clearly have been otherwise.” See, e.g., State v. Wogenstahl (1996), 

, 

.
       {¶ 76} Nevertheless, the statement complained of by Dennis does not
appear to be either inflammatory or prejudicial.         Even if the statement is
characterized as the prosecutor’s personal opinion, such a statement is permissible,
since it was based on the evidence presented during the penalty phase. See State v.
Durr (1991), 

, 

. Proposition of Law No.
16 is without merit.
       {¶ 77} In Proposition of Law No. 19, Dennis reviews the mitigation
evidence presented before the trial court and claims that imposition of the death
sentence was inappropriate in this case. We disagree and find this proposition to
be without merit. See our discussion of “Independent Review and Proportionality
Analysis,” infra.
                                         IV
                                Constitutional Issues
       {¶ 78} Propositions of Law Nos. 18, 20, and 21 raise arguments we have
already rejected numerous times. See, e.g., State v. Henderson (1988), 

, 

, and paragraph two of the syllabus; State
v. Dunlap (1995), 

, 

; State v. Steffen
(1987), 

, 31 OBR 273, 

, paragraph one of the
syllabus; State v. Jenkins (1984), 

, 15 OBR 311, 314-315,

; State v. Zuern (1987), 

, 

                             SUPREME COURT OF OHIO




585, 592-594; State v. Lawrence (1989), 

, 

; State v. D’Ambrosio (1993), 

, 

;
and State v. Buell (1986), 

, 22 OBR 203, 217-218, 

. We summarily overrule these propositions. State v. Poindexter
(1988), 

, 

, syllabus.
                                          V
                          Effective Assistance of Counsel
       {¶ 79} In Proposition of Law No. 15, Dennis asserts that he was denied the
effective assistance of trial counsel during voir dire and the mitigation phase.
       {¶ 80} Reversal of a conviction on the grounds of ineffective assistance
requires defendant to show, first, “that counsel’s performance was deficient,” and
second, that “the deficient performance prejudiced the defense … so seriously as
to deprive the defendant of a fair trial.” Strickland v. Washington (1984), 

, 

, 

. However, Dennis has not
demonstrated prejudice — “a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different.” State v. Bradley (1989),

, 

, paragraph three of the syllabus.
       {¶ 81} Dennis first cites counsel’s failure to object to the court’s numerous
statements to prospective jurors that their role in the penalty phase was merely to
“recommend” a sentence to the court. However, counsel’s decision not to interrupt
reflected an “objective standard of reasonable representation,”             Bradley, at
paragraph two of the syllabus, given this court’s prior pronouncements on this
issue. See, e.g., Woodard, 

, 

.
       {¶ 82} Dennis next asserts that counsel failed to inform the jurors that
intoxication could be considered for its effect on the accused’s mental state and the
mental element of the crime. Dennis also contends that counsel was ineffective for
failing to request an instruction on intoxication as a mitigating factor.




                                          20
                                January Term, 1997




       {¶ 83} However, counsel’s decision to not pursue some type of intoxication
defense was not unreasonable, especially since two key witnesses, Pizer and
Eberhart, testified that Dennis did not appear to be intoxicated. In addition, while
intoxication may reduce one’s inhibitions, even severe intoxication can co-exist
with purpose to kill. State v. Hicks (1989), 

, 

. Likewise, counsel did not fall below an objective standard of reasonable
representation by failing to request an instruction on intoxication as a mitigating
factor. “[V]oluntary drunkenness and drug use are not mitigating factors.” Slagle,

, 

. At best, voluntary intoxication is a “weak”
mitigating factor entitled to little or no weight. State v. D’Ambrosio (1995), 

, 145, 

. Moreover, this court has held that trial
courts are not required to instruct the jury on individual, nonstatutory mitigating
factors which can be considered by the jury under the R.C. 2929.04(B)(7) “catchall” factor. Landrum, 

, 

.
       {¶ 84} Dennis also criticizes counsel’s failure to ask prospective jurors
questions about attitudes on race; questions about whether they could consider the
mitigation evidence that would be presented; or questions “tailored to fit the
circumstances” of this case. However, “[t]he conduct of voir dire by defense
counsel does not have to take a particular form, nor do specific questions have to
be asked.” State v. Evans (1992), 

, 

.
Dennis does not demonstrate prejudice that affected the outcome of his trial under
Strickland and Bradley.
       {¶ 85} Dennis also cites counsel’s failure to “rehabilitate” favorable
prospective jurors, to timely object to the excusal of two prospective jurors for their
views on the death penalty, or to object to the peremptory challenges of the
prosecution.
       {¶ 86} We rejected a similar “failure to rehabilitate” argument in Bradley,

, 

. Counsel is in a much better position to




                                          21
                             SUPREME COURT OF OHIO




determine if jurors could be “rehabilitated” than this court, and a decision not to
“rehabilitate” particular jurors is within the scope of acceptable practice envisioned
in Strickland. Counsel’s failure to object to the excusal of the two prospective
jurors for their death penalty views and failure to object to the prosecution’s
peremptory challenges did not constitute error. (See discussion under Propositions
of Law Nos. 7, 8, and 9.) Since none of these claims amounts to reversible error,
counsel was not ineffective for failing to object.
         {¶ 87} Last, Dennis submits that counsel was ineffective for failing to
request a supplemental jury instruction pursuant to State v. Howard, and for failing
to request a mistrial when the court allowed juror Harris to remain on the jury. Yet,
as discussed under Proposition of Law No. 12, a Howard instruction was not
warranted at the time the jury sent its note to the trial judge indicating it could not
reach a unanimous verdict.
         {¶ 88} Nor did counsel’s failure to make a timely motion for a mistrial
constitute ineffective assistance, since Dennis does not show how he was
prejudiced by the court’s failure to remove juror Harris. Moreover, the court did
entertain defense counsel’s motion for a mistrial on that ground after the jury was
excused. The court overruled the motion for mistrial, and we find no abuse of
discretion in this decision. See State v. Sage (1987), 

, 31
OBR 375, 382, 

. Proposition of Law No. 15 is without
merit.
                                          VI
                 Independent Review and Proportionality Analysis
         {¶ 89} After independent assessment, we find that the evidence supports
beyond a reasonable doubt the aggravating circumstance that Dennis murdered
Kurt Kyle while committing aggravated robbery and that Dennis was the principal
offender.   R.C. 2929.04(A)(7).      In addition, the evidence supports beyond a
reasonable doubt the aggravating circumstance that Dennis attempted to kill Pizer



                                          22
                                  January Term, 1997




before murdering Kyle as part of a course of conduct involving the purposeful
killing or attempt to kill two or more persons. R.C. 2929.04(A)(5).
       {¶ 90} Nothing in the nature and circumstances of the offense appears
mitigating. Dennis and Lavar Anderson decided to go out on a robbery spree armed
with guns. Perhaps to help them summon up the courage to do so, the pair smoked
marijuana and drank at a bar before encountering their first victim, Dean Pizer.
Dennis told Pizer, “you are going to die tonight, …,” and tried to kill Pizer when
he fled. Minutes later, Dennis and Anderson held up Kyle and Eberhart in Kyle’s
driveway. Eberhart handed money over to Anderson, but Kyle told Dennis he
didn’t have any money on him. Before Kyle could even get his hand out of his
pocket, Dennis raised his shotgun and fired, at point-blank range, a blast at Kyle’s
head, killing him instantly. Dennis and Anderson fled the scene and were not
apprehended until several days later, when the police acted on an anonymous tip.
       {¶ 91} Dennis’s claim that he was so intoxicated he could barely stand or
walk that evening lacks credibility in view of all the evidence and testimony
adduced and proffered at trial.
       {¶ 92} Dennis’s history, character, and background indicate some
mitigating features. Dennis’s mother was nineteen when he was born, and his
parents experienced marital difficulties from the time Dennis was three weeks old.
The problems with the marriage culminated in the parents’ separating when Dennis
was five to six years old. In school, Dennis had a history of limited academic
success, and his numerous absences and academic difficulties caused him to repeat
both kindergarten and first grade. In later grades, Dennis continued to miss many
days of school and failed most subjects.
       {¶ 93} When Dennis became a teenager, his home situation grew worse.
Dennis’s mother became a person who was “just not caring” about anything with
her two children. All of the utilities at home were shut off. As a result, the county




                                           23
                             SUPREME COURT OF OHIO




children services board (“CSB”) took the Dennis children from the mother, and
Dennis was eventually placed in a foster home.
        {¶ 94} Dennis suffered a coma as the result of a swimming accident during
the summer of 1992 and almost drowned. As Dennis approached adulthood, he
completed an independent living program operated by the CSB. Dennis later asked
the CSB about the Job Corps, and in February 1994, he went to Edinburg, Indiana,
to obtain job training and earn his G.E.D., which he did. Dennis returned to his
foster home in Akron in April 1994, and the CSB requested termination of his longterm foster care, since he had reached the age of majority.
        {¶ 95} During the mitigation hearing, Dennis gave unsworn testimony
describing the events leading up to and including the robberies and murder. Dennis
expressed remorse and sorrow for Kyle’s family and claimed he never meant to kill
Kyle.
        {¶ 96} Dr. James L. Brown, a clinical and forensic psychologist, also
testified on Dennis’s behalf. Dr. Brown reviewed Dennis’s school and medical
records and interviewed Dennis, his aunt and foster mother. In addition, Dr. Brown
reviewed Dennis’s psychosocial history and gave him the Minnesota Multiphasic
Personality Inventory. Dr. Brown opined that Dennis had difficulties with social
and interpersonal relationships and that he tended towards antisocial activities.
Dennis has exceedingly poor judgment and great difficulty learning from
experience. Typically, Dennis would view emotional feelings as a weakness and
would therefore tend to put on a strong, uncaring facade.
        {¶ 97} In Dr. Brown’s opinion, three factors should mitigate against
imposing death on Dennis: (1) He lacked any effective “parenting” until around
age fifteen; (2) he was intoxicated at the time of the offense, due to drinking alcohol
and smoking marijuana dipped in embalming fluid to intensify its effect; and (3) he
was only eighteen at the time of the offense. Dr. Brown stated that Dennis has an
I.Q. of 86, which would put him in the low average range of intelligence. However,



                                          24
                                 January Term, 1997




Dr. Brown conceded that Dennis knew right from wrong. Dr. Brown did not testify
that Dennis’s developmental problems gave rise to any mental disease or defect.
          {¶ 98} With regard to the statutory mitigating factors, R.C. 2929.04(B)(4)
is entitled to appropriate appreciable weight in mitigation, since Dennis was
eighteen years old at the time of the offense.
          {¶ 99} R.C. 2929.04(B)(5) is also relevant since his only prior convictions
were two juvenile adjudications for criminal damaging and receiving stolen
property. While Dennis admitted using marijuana, he had never been charged with
a drug offense.
          {¶ 100} Under R.C. 2929.04(B)(7), several facts testified to by Dr. Brown
are mitigating, such as the lack of any effective guidance for Dennis during most
of his life, resulting in antisocial psychological tendencies. In addition, Dennis’s
apparent remorse over his criminal behavior should be given modest weight in
mitigation.    However, we assign no mitigating weight to Dennis’s voluntary
drunkenness and marijuana intoxication. See Slagle, 

, 

. Voluntary intoxication can constitute a “weak” mitigating factor,
but only in certain circumstances. D’Ambrosio, 73 Ohio St.3d at 145, 652 N.E.2d
at 714.
          {¶ 101} Upon independent weighing, we conclude that the aggravating
circumstances outweigh the mitigating factors beyond a reasonable doubt. Dennis
and his accomplice armed themselves and set out to rob people on the night of June
4, 1994. Dennis’s drinking and marijuana smoking before the crimes are indicative
of someone trying to raise up the courage to follow through with his intentions.
Dennis fired his sawed-off shotgun at Pizer when Pizer fled. Dennis reloaded his
sawed-off shotgun, showing that he was not content to use it merely as a prop to
rob money from his next victim. While Dennis and Anderson robbed Kyle and
Eberhart, Dennis fired his weapon again when Kyle produced no money, even
though Anderson successfully robbed Eberhart at the same time. Dennis’s course




                                          25
                            SUPREME COURT OF OHIO




of action that night was clear: if he did not obtain money from his robbery victims,
he would fire a shotgun blast their way. We hold that in spite of the mitigating
factors present in this case, Dennis’s actions in these crimes merit the capital
penalty to which he was sentenced.
       {¶ 102} We further find that the death penalty imposed in this case is both
appropriate and proportionate when compared with similar cases of murder as a
course of conduct involving the purposeful killing or attempt to kill two or more
persons. See, e.g., State v. Loza (1994), 

, 

;
Lundgren, 

, 

. The penalty is also appropriate and
proportionate when compared with capital cases combining aggravated murder
with aggravated robbery. See, e.g., State v. Green (1993), 

, 

; Lott, 

, 

.
       {¶ 103} For all the foregoing reasons, the judgment of the court of appeals
is affirmed.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                              __________________




                                        26