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THE STATE OF OHIO, APPELLEE, v. MCGUIRE, APPELLANT.
[Cite as State v. McGuire (1997), 80 Ohio St.3d 390.]
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.

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.

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.

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.

Mrs. Deaton saw Joy talking to two unidentified males in a dark-colored 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 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.

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.

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.

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."

2


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.

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."

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.

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.

3


A subsequent audiotaped interview by Deputy Swihart elicited further
details from McGuire. McGuire claimed that Richardson choked Joy before
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.

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.

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."

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

4

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 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.

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.

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.

5


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 of death
for the aggravated murder. The trial judge sentenced the appellant to death, and
the court of appeals affirmed.

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. 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

6


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.

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.

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.

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

7

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

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 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.

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.

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.

8


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

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.

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.

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.

9


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.

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.

Sufficient evidence was also presented indicating that McGuire was the
principal offender. The DNA evidence implicated McGuire as the source of
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.

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.
10


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

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.

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 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.

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.

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
11

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.

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
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.

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
12

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.

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.

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.
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
13

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.

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.

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 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
14

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.

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.

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.

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
trial. No prejudice exists, since appellate counsel's failure to challenge this single,
15

relatively insignificant statement by Reeves does not undermine confidence in the
fairness or reliability of the appeal.

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.

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.

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.

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

In his tenth proposition of law, McGuire claims that his statements to law
enforcement officers should have been suppressed because he was not advised of
16

his rights. See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694.

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.

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.

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.

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
17

cooperated, or pretended to for his own purposes, not one who was coerced.
Therefore, McGuire's tenth proposition lacks merit.
INDEPENDENT SENTENCE REVIEW

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.

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).

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).

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
18

(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 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.

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.

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
19

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 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.

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
second-guess 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.

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.

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
20

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.

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; 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.

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.

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.

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
21

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.

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.
FOOTNOTE:
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.
__________________

PFEIFER, J., concurring in judgment only. 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.

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
22

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?

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.

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.

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.
23


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

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."

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."

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
24

believe that it was not responsible for its death penalty verdict in violation of the
Eighth and Fourteenth Amendments to the United States Constitution."

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)."

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."

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."

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."

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."

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.
25

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."

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."

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."

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."

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 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."

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."
26


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."

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."

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."

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
constitutional requirements and are unconstitutional, both on their face and as
applied."
27

 

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