State v. Murphy

Full title: THE STATE OF OHIO, APPELLEE, v. MURPHY, APPELLANT

Court: Supreme Court of Ohio

Date published: Dec 30, 1992

65 Ohio St. 3d 554 (Ohio 1992)

605 N.E.2d 884

Opinion

No. 91-1675

Submitted October 20, 1992 —

Decided December 30, 1992.

APPEAL from the Court of Appeals for Marion County, No. 9-87-35.

Ruth Predmore, seventy-two years of age and in frail health, resided alone at 887 Davids Street in Marion, Ohio. Defendant-appellant, Joseph D. Murphy, resided with his parents at 1049 Davids Street, was acquainted with Mrs. Predmore and had performed yardwork for her in the past.

Mrs. Predmore was a member of a philanthropic organization known as the "Kings Daughters and Sons". Since approximately 1983, the organization had collected pennies to support its charitable activities. As treasurer of the organization, Mrs. Predmore maintained custody of the pennies and other funds of the organization (which exceeded $100) at her home. The pennies were not in rolls but were instead retained loose by Mrs. Predmore.

In mid-January 1987, appellant told his girlfriend, Brenda Cogar, that he intended to write a note to Mrs. Predmore demanding money and threatening her with death if she did not comply. On January 27, 1987, Mrs. Predmore visited a Lawson's store in her neighborhood near the intersection of Davids Street and Bellefontaine Avenue. While at the store, she talked to Janice Colby, a sales clerk, and displayed to her a note which she had received. The note stated as follows:

"You dont have no phone. I want your money. put it in a bag and put it in your yard or i'll kill you tonite.

"No money

"No life

"Tonite at 8:00"

On February 1, 1987, at approximately 7:00 p.m., appellant left his parents' home, clad in a blue tee-shirt, blue jeans, tennis shoes, maroon vest and brown jacket with white fleece lining. He went to the Sohio gasoline station on the corner of Davids Street and Bellefontaine Avenue and requested penny wrappers. A clerk provided used penny wrappers. At approximately 9:00 p.m., appellant telephoned his mother and informed her that he had found a credit card.

The same evening, between 9:00 p.m. and midnight, Mrs. Predmore was killed by a five-inch knife wound to her neck. The knife severed the trachea, the esophagus, and the right and left carotid arteries and jugular veins.

At approximately 10:30 p.m., appellant returned home. Although his hands and face were covered with blood, he displayed no cuts or bruises on his body. There was no blood on his clothing. He explained that the blood was the result of a fight. Thereafter, he went to the bedroom of his brother Michael where they counted pennies and placed them in paper rolls. The next morning, appellant had a black bag of pennies in paper rolls, some of which he offered his mother to purchase cigarettes.

On February 3, 1987, appellant entered the Lawson's store, showed the manager some rolled pennies in a dark bag and asked whether she would exchange the coins for currency. The manager declined.

Jackie Valentine was a supervisor for the Homemaker and Chore Program of the Marion County Department of Human Services, which delivered meals to the elderly who were unable to leave their homes. On February 2, 1987, Valentine received a telephone call informing her that Mrs. Predmore had not responded when a meal was delivered to her home. Upon arriving at the home of Mrs. Predmore, Valentine entered the unlocked front door and discovered the lifeless body of Mrs. Predmore. Valentine thereafter summoned the Marion city police.

The first officer to arrive, Detective Sammie L. Justice, discovered footprints in blood on the front porch and blood splattered on the screen door and wooden front door. Thereafter, Agents Robert D. Setzer and David Barnes of the Ohio Bureau of Criminal Identification and Investigation ("BCI") searched the Predmore residence. They discovered in the living room the note that Ruth Predmore had previously shown to Janice Colby. Agent Setzer also took blood samples from the shoeprints found on the porch of the Predmore house. Subsequent analysis revealed that the blood was of Ruth Predmore's type.

Meanwhile, as some of the members of the Murphy family were preparing to travel to West Virginia, they noticed the police activity at the Predmore home down the street. Appellant appeared agitated and ventured the opinion that Mrs. Predmore must have been murdered. Thereafter, appellant placed a telephone call to Cynthia Nichols, his aunt, and asked her whether he could stay with her for a while at her residence at the Wood Valley Trailer Park in Caledonia, Ohio. After she agreed, appellant and Brenda Cogar departed for Caledonia at approximately 8:00 p.m. After their arrival, appellant admitted to Cogar that he had killed Mrs. Predmore by slashing her throat with a knife he had taken from a collection of his brother.

On February 3, 1987, Detective Wayne J. Creasap discovered a wallet belonging to Mrs. Predmore underneath a shrub, approximately fifty yards south of the Murphy residence.

Thereafter, police searched the Murphy residence and found a pair of gloves, a brown windbreaker jacket with white fleece, a woman's purse, penny wrappers, rolled pennies and writing paper of the type upon which the note found in the Predmore home was written. A subsequent search of the residence revealed a pair of blood-stained blue jeans.

Police then travelled to Caledonia, arrested appellant and advised him of his rights to remain silent and to have the assistance of counsel.

At approximately 8:06 p.m., BCI agents searched the house trailer of Cynthia Nichols. Among the items recovered were a pair of tennis shoes and a maroon blood-stained vest. Subsequent analysis of the tennis shoes, the gloves, the jacket, the purse and blue jeans revealed the presence of Type A blood. While both appellant and Mrs. Predmore had Type A blood, Mrs. Predmore had blood containing a PGM 1+ enzyme factor while the appellant had a PGM 2+ enzyme factor. Sixteen percent of the population have blood of the type and enzyme factor of Mrs. Predmore's. The blue jeans recovered from the home of appellant had blood stains of those characteristics.

Meanwhile, appellant was transported to the Marion police station. Upon arrival, appellant was again advised of his constitutional rights and acknowledged that he understood them. Following both oral and written instructions regarding his rights, appellant executed a written waiver prior to any conversation with police detectives. The subsequent interview was taped and a transcription thereof produced. During the interview, Sergeant John Gosnell of the Marion County Sheriff's Department alluded to prior criminal acts of appellant involving arson and breaking and entering. Appellant acknowledged that he had written the note found in the home of Mrs. Predmore, which she had previously shown to Janice Colby.

On February 4, 1987, appellant sent word from jail that he wished to continue the interview.

This second interview was likewise taped and transcribed. At approximately 11:13 p.m., appellant was again advised of his rights and again executed a waiver form. During this interview, appellant denied any involvement in the death of Mrs. Predmore and implicated Alvie Coykendall, his brother-in-law, in the crime. Appellant volunteered to submit to a polygraph examination.

On February 8, 1987, police again searched the Murphy residence, and recovered a knife lodged in the concrete foundation of the home. It was part of the collection belonging to David Murphy, the brother of appellant. Analysis of the knife revealed traces of blood. Shortly after this search, Murphy's mother discovered a plastic bank card bearing the name of Ruth Predmore under a mattress in a basement bedroom of her home.

On February 11, 1987, appellant was indicted by the Marion County Grand Jury on one count of aggravated murder with two death penalty specifications, one count of aggravated robbery, one count of aggravated burglary and one count of extortion.

Count One of the Indictment and the specifications thereto provided as follows: "COUNT I: [Joseph Dwayne Murphy] on or about the 1st day of February, 1987, did, purposely cause the death of Ruth Predmore while committing, attempting to commit, or fleeing immediately after committing or attempting to commit the offense of aggravated robbery in violation of Ohio Revised Code Section 2911.01, thus in violation of Section 2903.01 of the Ohio Revised Code, this being the offense of aggravated murder.

" SPECIFICATION # 1 TO COUNT ONE: The Grand Jurors further find and specify that the offense of Aggravated Murder was committed while Joseph Dwayne Murphy was committing, attempting to commit, or fleeing immediately after committing or attempting to commit the offense of aggravated robbery in violation of Ohio Revised Code Section 2911.01, and Joseph Dwayne Murphy was the principle [ sic] offender in the commission of the aggravated murder. Ohio Revised Code Section 2929.04(A)(7).

" SPECIFICATION # 2 TO COUNT ONE: The Grand Jurors further find and specify that the offense of Aggravated Murder was committed while Joseph Dwayne Murphy was committing, attempting to commit, or fleeing immediately after committing or attempting to commit the offense of aggravated burglary in violation of Ohio Revised Code Section 2911.11, and Joseph Dwayne Murphy was the principle [ sic] offender in the commission of the aggravated murder. Ohio Revised Code Section 2929.04(A)(7)." (Emphasis added.)

On March 17, 1987, appellant again notified authorities at the Marion County Jail that he wished to speak with a police officer. Appellant was again advised orally and in writing regarding his constitutional rights and executed a rights waiver form. In this third interview, which was likewise taped and transcribed, appellant maintained that, while he had been involved in the murder, Alvie Coykendall was the principal offender.

On March 17, 1987, appellant filed a motion to suppress any oral and written statements given by him to police officers. After a hearing, the motion was denied on July 30, 1987.

During voir dire, appellant's counsel disclosed prior crimes by appellant to eight of the twelve who were ultimately chosen to be jurors. Representative of these disclosures was the following remark by counsel for appellant:

"MR. WILSON: The fact that as I indicated, he has been in an institution which is Lucasville, Ohio State Reformatory for Arson charges. He had a background of Auto Theft and B and E, Breaking and Entering, and then Arson, and he's served time on Arson. Would that fact alone create a state of mind to say, jiminy, he's been in trouble before, he ought to get the death sentence?"

Prospective juror Devenis Hall was questioned as follows regarding his ability to return a death penalty verdict:

"THE COURT: If you were sitting in the jury room with eleven other jurors, and eleven other jurors indicated that they felt that the death penalty should be imposed, would you refuse to sign a verdict, go along with your fellow jurors and considering the Court's instructions, the death penalty would be appropriate under the law in the case, or would you just unequivocally refuse to sign a death penalty verdict under any circumstance?

"MR. HALL: I wouldn't want to cause anybody to be put to death. I don't believe — the Bible tells me that I should not kill and anything like that, I don't believe that I should have anybody — my signature on anything that would cause anybody to be killed.

"THE COURT: So you are saying that you would, under no circumstances would you vote for the death penalty?

"MR. HALL: I don't believe I would.

"THE COURT: Very well.

"Did you have any additional questions?

"MR. WILSON: If the Judge instructed you, Mr. Hall, that you were to weigh out the aggravating circumstances involved in this particular case and you were to weigh out any mitigating circumstances that Joey Murphy may present at the time and decide one of three verdicts, a verdict of death, a verdict of life imprisonment with no parole after thirty years, until thirty years, or life imprisonment with no parole until after twenty years, could you fairly consider all three of those particular verdicts?

"MR. HALL: I could go along with life imprisonment with no parole for thirty years or twenty years, but death, I just — my personal feelings is I still couldn't go along with taking anyone's life.

"MR. WILSON: I'm not asking you to sign that. I'm just asking you, could you consider that?

"MR. HALL: I could consider it, yes. But the way I feel in my life, death is something only the Lord can — I feel has that right to take somebody's life.

"THE COURT: Thank you, Mr. Hall. You will be excused. You can go now, too."

Appellant objected to the removal of Hall for cause.

Thereafter, prospective juror Lowell Lemaster was questioned as follows:

"MR. SLAGLE [prosecutor] * * * are there other concerns that you would have in imposing the death penalty other than the one thing you have mentioned is just being sure the Defendant was guilty? Are there other concerns you might have?

"MR. LEMASTER: Well, I don't believe so, no.

"MR. SLAGLE: And I understand, And —

"MR. LEMASTER: Without, you know, just like — I'm not really religious or anything, but, you know, I'd just hate to be the one to say this guy dies. That's the only thing I could see.

"* * *

"MR. SLAGLE: Is there anything that will prevent you from signing a verdict form where the verdict said the penalty is death?

"MR. LEMASTER: None other than what I just said is all.

"MR. SLAGLE: It would be uncomfortable?

"MR. LEMASTER: Uncomfortable, yes.

"MR. SLAGLE: Do you think it will be so uncomfortable that you couldn't fairly consider the penalty of death?

"MR. LEMASTER: Yes, only because they, you know, I would feel like I would be taking his life. Other than that, it would be okay. If I, you know, — when — like I said, I'm not — I believe in Jesus and Christ and all that. When you get up there, he's going to judge me and it says that you don't judge, you, you don't judge people, too. So other than that —

"MR. SLAGLE: You'd be concerned that if you returned a death penalty verdict, you might not be following, you know, your Christian principles?

"MR. LEMASTER: Oh, yes, more or less." The court inquired as follows:

"THE COURT: I would like to ask, I'm going to give you instructions at the conclusion of the case, and the law. Of course you are going to have before you at that time the evidence in the case. If my instructions, pursuant to my instructions, having listened to the evidence, if you deemed the death penalty appropriate, at that time would you, could you see and impose the death penalty pursuant to the instructions and the evidence in the case, or would you automatically vote against imposition of the death penalty?

"MR. LEMASTER: I think I'd be against the death penalty, vote against it."

Thereafter, the prosecuting attorney explained his reasons for utilizing a peremptory challenge with respect to Mr. Lemaster:

"MR. SLAGLE: For the record, the State excused Mr. Lemaster for the reason that during the voir dire yesterday, he expressed some religious views that seemed to indicate it would be — he indicated it would be difficult for him to return a death verdict based on his religious views."

Jean Napier was questioned as follows regarding her ability to serve on the jury:

"[THE COURT]: My question, at this time to you is, are you philosophically, religiously, morally, or otherwise opposed to the death penalty?

"MS. NAPIER: Yeah. I don't believe in death penalty.

"THE COURT: You may not believe in it or have thoughts from time to time in it. However, I would like to ask you this that even though you have a conscientious, religious or other opposition to the death penalty, could you nevertheless follow my instructions in a case, and after you have heard all of the evidence, could you join with your fellow jurors in signing a verdict that might impose the death penalty if it was appropriate?

"MS. NAPIER: I don't —

"THE COURT: Are you saying that under no circumstances —

"MS. NAPIER: No.

"THE COURT: — would you follow my instructions? Under no circumstances, could you —

"MS. NAPIER: I just don't believe in death penalty.

"THE COURT: But in a given occasion if you were seated as a juror and you were under oath to follow my instructions and follow the law, could you impose the death penalty if it was appropriate?

"MS. NAPIER: If it was appropriate, I suppose, but I really don't believe in death penalty."

Thereafter, the following colloquy occurred between the prosecuting attorney and Ms. Napier:

"MR. SLAGLE: Could you render a death verdict if the evidence, you know, was sufficient, you know, and was consistent with the Judge's instructions?

"MS. NAPIER: Like I said, I don't believe in death."

The prosecuting attorney explained the basis of his exercise of a peremptory challenge with respect to Ms. Napier as follows:

"MR. SLAGLE: The State exercised a peremptory challenge for Mrs. Napier for the reason she stated that she did not believe in the death penalty."

On August 12, 1987, the state filed a motion requesting a jury view of the Predmore and Murphy residences. No memorandum in opposition to the motion was filed. On August 26, 1987, the motion was granted and a jury view was conducted. No request was made by appellant that the jury view be videotaped or otherwise preserved.

Thereafter trial commenced in the Marion County Court of Common Pleas and testimony was elicited from Officer Wayne Creasap. During his testimony, Officer Creasap referred to his notes while relating his investigation of the scene of the murder and surrounding areas. Defense counsel objected that the witness was reading from his report rather than testifying from memory. The court ruled at that time that the witness could employ the report to refresh his recollection. After further testimony, the objection was renewed and overruled.

Thereafter, BCI agent Robert D. Setzer testified regarding his investigation of the crime scene. Setzer was asked to identify a photograph of the body in the location where it had been discovered. This and other photographs depicting the scene were admitted over objection. Setzer also identified items of clothing recovered from the Murphy residence, including the gloves, windbreaker jacket, and woman's purse.

Setzer further identified photographs of these items in the locations where they were found. All of the items and photographs thereof were admitted into evidence without objection.

Thereafter, Patrick M. Fardal, Chief Forensic Pathologist and Deputy Coroner for Franklin County, testifying on behalf of the state, identified a photograph of the victim's neck wound prior to the autopsy, depicting the severed organs in the throat. Counsel for appellant objected to the display of the photograph to the jury, contending that it was unduly inflammatory. The court overruled the objection. On cross-examination, Dr. Fardal acknowledged that the width of the neck wound as depicted in the photograph was the result of the tilt of the head of Mrs. Predmore on the autopsy table.

Sergeant J.L. Gosnell of the Marion County Sheriff's Department testified concerning the interview that he and Detective Creasap conducted with appellant on February 3, 1987. Appellant objected to admission of the tape and transcription of the interview based on the violation of his right to counsel and on references in the interview to the prior criminal conduct of appellant. Although the objection was overruled, the court gave a cautionary instruction regarding the references to the prior criminal activity of appellant. The tapes were subsequently played to the jury and the transcript of the recording was distributed to the jury to follow while the tape was playing. Defense counsel's renewed objection was overruled. Similar objections were made to the admission of the tape recordings and transcriptions of the February 4, 1987 and March 17, 1987 interviews. These objections were likewise overruled. The tape recordings were thereafter played to the jury.

Prior to submission of the case to the jury, the trial court instructed it as follows:

"If you find that the Defendant is guilty of Aggravated Murder, it is your duty to deliberate further and decide additional factual questions. That is the two Specifications of aggravating circumstances as set forth in Count 1 of the indictment. * * * The aggravating circumstances set forth in each individual Specification of the first count of the indictment constitute a separate and distinct matter. You must consider each Specification and the evidence applicable to each Specification separately, and must state your finding as to each Specification uninfluenced by your decision as to the other Specification.

"The Defendant may be found guilty or not guilty of either or both of the Specifications. Your decision on each Specification will be expressed by a finding of guilty or not guilty as to that separate Specification.

"Guilty as to each Specification must be proved by the State of Ohio beyond a reasonable doubt.

" The State charges in Specification # 1 that the Defendant, as the principle [sic] offender, committed the offense of Aggravated Murder of Ruth Predmore while the Defendant was committing or attempting to commit the offense of Aggravated Robbery, or was fleeing immediately thereafter of [sic] committing or attempting to commit the offense of Aggravated Robbery.

"* * *

"If you find that the State proved beyond a reasonable doubt all of the essential elements of the aggravating circumstance contained in Specification # 1, your finding must be guilty as to specification # 1."

On August 28, 1987, the jury returned verdicts of guilty on all counts and specifications. The verdict form relative to Count I stated as follows:

" Count I

"We, the Jury, in this case being duly impaneled and sworn, do find the defendant Joseph Dwayne Murphy, *Guilty of the offense of Aggravated Murder of Ruth Predmore in violation of R.C. 2903.01 as charged in Count I of the Indictment.

"* * *

"We, the Jury, further find the defendant, Joseph Dwayne Murphy, *Guilty of the aggravating circumstances as set forth in specification Number 1 to Count I, to-wit: That the offense of aggravated murder was committed while Joseph Dwayne Murphy was committing or attempting to commit the offense of aggravated robbery or was fleeing immediately after committing or attempting to commit the offense of aggravated robbery.

"* * *

"We, the Jury, further find the defendant, Joseph Dwayne Murphy, *Guilty of the aggravating circumstances as set forth in Specification Number 2 to-wit: That the offense of aggravated murder was committed while Joseph Dwayne Murphy was committing or attempting to commit the offense of aggravated burglary or was fleeing immediately after committing or attempting to commit the offense of aggravated burglary."

On August 31, 1987, at the penalty phase of the trial, Stella Murphy, the mother of appellant, testified on his behalf. She was cross-examined as follows:

"Q Now about this custody proceeding in Mansfield, isn't it correct that the reason a custody proceeding was initiated is because your son had abused his daughter?

"A No, they did not know who abused the daughter."

On September 1, 1987, appellant spoke on his own behalf. Immediately prior to his statement, the court instructed the jury as follows:

"Members of the jury, the Defense has indicated that the Defendant is going to take the stand at this time, and give an unsworn statement.

"In a case such as this, the statute specifically provides that he's entitled to do that. I'm going to give you this cautionary instruction concerning the statement at this time. You will keep this instruction in mind along with the other instructions that I give you at the conclusion of the case.

"The Defendant has a right to make an unsworn statement in his behalf. The Defendant has indicated that he wishes to exercise this right at this time. Since the Defendant has elected to make an unsworn statement, the Prosecutor will not be permitted to cross-examine the Defendant. The Defendant will also not be placed under oath prior to making this statement.

"As I will instruct you later, or as I have instructed you previously as to witnesses in this case, it will be up to the jury to consider the credibility of the witnesses, including the Defendant. While you are not required to believe the testimony of any witness simply because he was under oath, the taking of an oath is a factor you may consider in assessing the credibility of each witness. With the exception of the facts [ sic] that the Defendant's statement will not be under oath or subject to cross-examination, his testimony shall be weighed by the same rules that apply to other witnesses."

Counsel for appellant objected to this instruction.

Following appellant's statement, Dr. Nancy Schmidtgoessling, a clinical psychologist, testified that appellant possesses the emotional maturity of a person five or six years of age. On cross-examination, however, Dr. Schmidtgoessling stated that appellant did not suffer from schizophrenia, hallucinations, or delusions and could differentiate between right and wrong.

Thereafter, Dr. James Sunbury, a psychologist, testified for the state that appellant possessed an intelligence quotient in the range of seventy to eighty, which placed him in the lowest six or seven percent of the population. However, Dr. Sunbury was also of the opinion that appellant was not mentally retarded and stated that appellant had told him that appellant did not suffer from hallucinations or delusions. Over objection Dr. Sunbury testified that appellant had the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law. The substance of the testimony of Dr. Sunbury was reflected in psychological reports he had prepared concerning the competency of appellant to stand trial and whether he was insane at the time of the commission of the offenses. In listing the charges against appellant, each report wrongly included theft.

The introduction of Dr. Sunbury's reports was opposed by defense counsel on the basis that the reports were prepared on the competency and insanity issues and were irrelevant with respect to the determination of mitigation. However, counsel did not challenge the reference to an uncharged offense in the report. The exhibits were admitted over objection.

On September 2, 1987, following the presentation of the evidence in mitigation, the state addressed the jury as follows:

"The other aggravating circumstance was that this crime was committed during the course of an Aggravated Burglary. And as you will recall, Aggravated Burglary involves trespassing in another's home with the purpose to commit a Theft offense.

"You see, we live in a society where people often times don't feel safe to go out on the streets, don't feel safe to be out after dark. This is one place, one place above all that people ought to be able to feel safe, and that's right in your own home.

"* * *

"We are — more over [ sic], I think it's significant that this Defendant, better than most 22 year olds, ought to have known the serious consequences of his acts because he's been through the system before. He's been to prison before. He knows, and he knew on February 1st, this was a serious matter. That if you burglarize a house, you go back to prison. If you rob, you can go back to prison. So it's not a childhood prank. In fact, we are fortunate we caught him at age 22 before there were other victims like Mrs. Predmore.

"* * *

"Now the Defense argues that, well, he had several problems at that time on February the 1st, and those are what we call stressers [ sic]. And as a result, he's under duress. Well, take a look at those problems. He didn't have any money. Well, why didn't he have any money? His mother said he had a job and he quit. I'd suggest if any one of us quit our jobs, we'd be short of money, too. He was having a custody dispute on his child. Well, why? Because he had abused his child.

"MR. WILSON: Objection.

"THE COURT: Overruled.

"MR. SLAGLE: Stella Murphy was asked about that. She said the child was abused, and that's what the custody dispute was about. And then they argued and tried to say that he was under stress because the Friday before the murder, his mother had kicked him out of the home.

"* * *

"You also know that this Defendant made a conscious decision to take a knife with him when he went to the house on February 1st. It wasn't a knife that he normally carried around with him. It was a knife he had to take from his brother David's knife collection. It would seem pretty coincidental that this Defendant could argue that, `I was just under stress, and I happened to be in the house. I didn't plan on killing her, and she didn't sit in the right place. She startled me, and I killed her as a result.' It would be pretty coincidental if the same person he did that to, week before, had written a death threat letter to, and had also made the decision to arm himself with a knife, a knife he normally didn't carry, a knife that didn't even belong to him.

"But also, look at the location of the stab wound on Mrs. Predmore. It's right across the neck. Severs the arteries all the way around. Severs the esophagus and the trachea. It scrapes the spine, five inches across. I would suggest to you that the way you commit that type of injury, the way you slash a person's neck like that is to hold them from behind, take that knife to the throat and run it across.

"MR. WILSON: Objection, Your Honor.

"THE COURT: Overruled.

"MR. SLAGLE: I would suggest to you that that's the way you commit that type of Murder. And that's very different from a person who is just standing there and the victim wouldn't sit in the right place, and all of a sudden he gets mad and lashes out with the knife. He's just lashing out with the knife. Is he going to stab? Is he going to hit some other part of the body? Rather it looks like the knife injury was calculated to cause her death, that he took it to the weakest part of her body, the part where he could inflict death the quickest, the neck. It's very different from a spur of the moment action done because he startled her. Rather looks like a wound inflicted as part of a plan."

During his argument, the prosecuting attorney minimized the influence of social factors upon the behavior of appellant. In particular, he cited the following illustration:

"We have talked a lot of Appalachia, and about the poor conditions down there. But has there been any evidence presented that they have more murderers in Appalachia than they do anywhere else? There hasn't.

"I'd like to tell you a story that in one sense doesn't have anything to do with this case, but in another sense has everything to do with this case. I have a brother-in-law that grew up in the hills of Tennessee, area much like what has been described as Clay County, West Virginia. One of nine children in the family, not much money. He always said that where the rich families down there had an out house, our family wasn't one of the rich families. All we had was a path back in the woods. When he was 10 or 11, his family came to Marion and enrolled in school here, and he could have said, well, all the kids are making fun of me because I come from down in the hills. We don't have any money. I don't have the right clothes to wear. I'm not getting treated right at home. My parents pay attention to the other eight children. He could have said all that. Instead, he went to school and he worked. He wanted to make something of himself. There wasn't any money to go to college, no one in the family had ever been to college. But he wanted to go, and he had an ability. In his case, the ability to run fast, and he worked at that. As a result, he got a track scholarship and went to college and graduated from college, and today he is a teacher in the Inner City Schools in Columbus."

In summation, the prosecutor remarked as follows:

"At some point, enough is enough. At some point, we as a society have done everything we can do for this Defendant. At some point, we have got to turn from trying to help him, and turn to punishing him and protecting society.

"* * *

"For sixteen years, we have tried to help this Defendant. He has rejected every effort, rejected every offer of help, and it's never going to change."

Following the arguments of counsel the trial court instructed the jury regarding its determination of the appropriate punishment. After describing the aggravating circumstances in the specifications to Count I of the indictment, the court stated:

"You will also consider all of the evidence as to any mitigating factors included — including, but not limited to the nature and circumstances of the offense, and the history, character, and background of the Defendant.

"Mitigating factors are factors that while they do not justify or excuse the crime, nevertheless may be considered by you as extenuating or reducing the degree of the defendant's blame or punishment. These mitigating factors include but are not limited to the following. One, whether it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation.

"Two, whether at the time of committing the offense the offender, because of mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

"Three, the youth of the offender.

"And four, any other factors that are relevant to the issue whether the Defendant should be sentenced to death."

Upon submission of the case to the jury, the court instructed the jurors not to discuss the case with anyone else:

"You will be sequestered, as I instructed you at the previous aspect or phase of this trial. During your sequestration, you can have no discussion amongst yourselves, nor with anyone else, regarding any aspect of this case whatsoever. The only time you can discuss this case amongst yourselves, whenever all twelve of you are in the jury room deliberating. You are also under the same instructions heretofore given as to not listening to the radio or reading news reports in this matter. You will not be permitted to communicate with your families, except with my personal permission. In the event that a member of your family must communicate with you or you must, in an emergency, communicate with them, please make that request to me in writing, and give it to the Bailiff who will be with you during your sequestration."

During jury deliberations in the afternoon of September 2, 1987, the court gave the following supplemental instruction in response to a question from the jury:

"On Page 5, charge to the jury, Point 3 in mitigating factors under 3, the youth of the offender. Your question, `Is youth referring to his chronological age, or psychological age?'

"My response to that is that that particular mitigating factor refers to a Defendant's chronological age."

At the conclusion of their deliberations for the day, the trial court repeated its earlier instructions prohibiting jury contact with the public.

On September 3, 1987, the jury resumed its deliberations. At approximately 12:45 p.m., it rendered its verdict, which recommended that appellant be sentenced to death.

On September 11, 1987, appellant filed a motion for a new trial based upon insufficient supervision of the jury during its sequestration. Attached to the motion was the affidavit of a juror that members of the jury were permitted to place unsupervised telephone calls to family members or friends, that a spouse of a juror was permitted to visit and socialize with four of the jurors in their motel rooms and that alcoholic beverages were brought to the motel room of that juror and given directly to the juror. On September 24, 1987, the state filed a memorandum in opposition to the motion for a new trial. Attached to the memorandum was an affidavit of the juror whose previous affidavit was attached to the motion for a new trial. In the second affidavit, he stated that any contact between jurors and members of the families about which he was aware was limited to securing a change of clothing and overnight supplies and that he was not aware of any discussion between jurors and outsiders which concerned the subject of the trial. Moreover, affidavits filed by the remaining eleven jurors disclosed that none of them discussed the case with members of their families or the public.

On September 14, 1987, the trial court conducted its independent consideration of aggravating circumstances and mitigating factors pursuant to R.C. 2929.03(D)(3). In the course of this assessment the court stated in part:

"The Defendant's childhood, in his formative years, has been a disaster. His life, to the day of this tragic event, was by all standards abominable. Virtually his entire life has been institutionally oriented, and each attempt to treat him or help him has failed to produce any positive behavioral changes. He has consistently chosen to defy authority and to set his own standards of acceptable behavior.

"* * *

"It is this Court's independent finding that the mitigating factors, presented by the Defendant, should be given minimal or no weight. The court therefore finds by proof beyond a reasonable doubt that the aggravating circumstances, the Defendant was found guilty of committing, outweigh the mitigating factors presented present [ sic] as to the 1st Count of the indictment."

A sentencing opinion reflecting this determination was issued on September 24, 1987.

Following a hearing, appellant's motion for a new trial was denied, on October 1, 1987.

On June 26, 1991, the court of appeals affirmed the conviction and penalty.

The cause is now before this court upon an appeal as of right.

Jim Slagle, Prosecuting Attorney, for appellee.

James Kura, Ohio Public Defender, Jane P. Perry and Joann M. Bour-Stokes, Assistant Public Defenders, for appellant.

Per Curiam.

I

In his first proposition of law, appellant contends that the prosecuting attorney's cross-examination of Dr. Schmidtgoessling and direct examination of Dr. Sunbury focused upon criteria relevant to the insanity defense rather than those relevant to the mitigating factor described in R.C. 2929.04(B)(3). In particular, appellant maintains that the inquiry and argument of the prosecutor sought to establish in the minds of the jurors a misconception that in mitigation appellant was required to demonstrate the more difficult standard for the insanity defense described in State v. Staten (1969), 18 Ohio St.2d 13, 47 O.O.2d 82, 247 N.E.2d 293. We have reviewed the record and conclude that the line of inquiry pursued by the prosecution was directly relevant to the criterion set forth in R.C. 2929.04(B)(3): "Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." This conclusion is underscored by these remarks of the prosecutor in closing argument:

"[W]hat the law says and what the Judge will instruct you is you may consider it as a mitigating factor if it's proven that at the time of committing the offense on February 1st, 1987, the Defendant, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."

This is an accurate statement of the law. We are not convinced that isolated references by the prosecutor to conditions associated with insanity and the similarity between the elements of the insanity defense described in Staten, supra, and the criteria contained in R.C. 2929.04(B)(3) show that the prosecutor was suggesting to the jury that the two standards are interchangeable. Indeed, the holding in State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph five of the syllabus, clearly establishes that the trial court is not obligated to instruct on the differences between the two standards where both issues are present in the same case.

Appellant withdrew his plea of not guilty by reason of insanity before trial. Accordingly, there was no occasion for the jury to confuse the two standards. Moreover, unlike the situations presented in State v. Lawrence (1989), 44 Ohio St.3d 24, 28, 541 N.E.2d 451, 456, the prosecuting attorney in the present case did not suggest to the members of the jury that an identical analysis is to be employed in resolving the two distinct issues.

That certain characteristics are germane in establishing both conditions does not render evidence of those characteristics inadmissible during a hearing on the mitigating circumstance described in R.C. 2929.04(B)(3). The first proposition of law urged by appellant is not well taken.

II

In his second proposition of law appellant challenges the independent review conducted by the court of appeals. Specifically, appellant objects to the comparison of himself with others in similar circumstances who nonetheless eschew criminal activity. On this issue, the appellate court remarked:

"Regarding the evidence of duress in support of mitigation factor R.C. 2929.04(B)(2), many people suffer the stresses of infidelity, monetary problems, and family illness without resorting to robbery, burglary, and murder as a solution to these problems. Additionally, there are many people who grow up with Appellant's background, personality disorders, and I.Q. as presented in support of R.C. 2929.04(B)(7) and these people do not go on to commit aggravated felonies and murder. There is little in Appellant's circumstances to justify his conduct or decrease his moral culpability for the crimes he committed. When weighed against the aggravating circumstances proven beyond a reasonable doubt, we find all mitigating factors are outweighed." (Emphasis added.)

The analysis employed by the court of appeals is not unlike that employed by this court in State v. Maurer (1984), 15 Ohio St.3d 239, 245, 15 OBR 379, 384, 473 N.E.2d 768, 777, and no more objectionable. Such an independent determination, like that conducted in any other context, necessarily requires the factfinder to draw on its experience in the evaluation of the evidence presented. In the case of a mitigation proceeding, it is essential to determine what weight is to be given the specific circumstances of the defendant. The evaluation of these circumstances necessarily requires a comparison with others similarly situated. The second proposition of law advanced by appellant is therefore overruled.

III

In his third proposition of law appellant argues that the sentence of death in the present case is unreliable and inappropriate. These contentions are better addressed in the context of our independent review of the aggravating circumstances and mitigating factors.

IV

In the fourth proposition of law appellant objects that the arguments of counsel on behalf of the state were inflammatory and unsupported by the record. We disagree.

Appellant challenges the description by the prosecuting attorney during the penalty phase of the manner in which Mrs. Predmore was slain. While appellant contends that there was no evidence regarding the precise circumstances of the murder, investigation by the coroner of the knife wound and the pictures thereof are consistent with the description employed by the prosecutor. Clearly, counsel is permitted to argue reasonable inferences from the evidence presented.

Moreover, the argument was directed to the contention of appellant that the act he committed was impulsive. The purpose of the argument was therefore meant to underscore the purposeful nature of appellant's behavior as disclosed by the evidence.

Appellant further contends that the prosecuting attorney "appealed to the jurors to protect society against crime by punishing [him] with the death penalty." This argument mischaracterizes the statement of counsel. Instead, the prosecutor remarked:

"We live in a civilized society. And as part of a civilized society, we cannot tolerate such crimes. I don't particularly enjoy being in a situation of asking you to return a death penalty verdict, but once in a while that's the only thing that's appropriate. That's the only answer."

Thus, the description of the comments of the prosecutor by appellant are an exaggeration. The reference taken as a whole was clearly not directed to the death penalty per se but to the need to protect society from violent behavior. Finally, such remarks, even if interpreted to suggest that the sentence of death is the only method whereby society can be protected, are not improper on that basis alone. In State v. Beuke (1988), 38 Ohio St.3d 29, 33, 526 N.E.2d 274, 280, this court observed that comments of this nature "consist of a general discussion of the death penalty, concluding with a specific request that the death penalty be imposed to maintain community standards. As such, the arguments are not constitutionally infirm, cf. Booth v. Maryland (1987), 482 U.S. [496, 504], 96 L.Ed.2d 440, 449, 107 S.Ct. 2529, 2533 (`[i]t is the function of the sentencing jury to "express the conscience of the community on the ultimate question of life or death" * * * [citation omitted]') * * *."

Appellant similarly objects to the comparison drawn by the prosecutor between appellant's family situation and that of the brother-in-law of the prosecutor. However, this was a permissible argument to rebut the contention of appellant that his background was responsible for his acts. In short, counsel for the state was merely addressing issues which we have previously observed are a proper subject for consideration by the factfinder in the mitigation proceeding. (See Proposition of Law No. 2, supra.)

Finally, appellant objects to the prosecutor's assertions that a custody dispute involving appellant's daughter had as its genesis his physical abuse of the child. Although this assertion was totally unsupported by the record and constituted inappropriate argument on the part of the prosecuting attorney, we conclude that it could not have affected the outcome of the trial. Accordingly, while such remarks were ill-advised and unjustified, we do not believe them to be prejudicial.

Appellant's fourth proposition of law is therefore overruled.

V

In his fifth proposition of law appellant argues that the statements which he made to law enforcement officers were involuntary. This contention is belied by a review of the circumstances surrounding his interrogation. The transcripts of the interviews reveal that each was preceded by warnings, that knowing and voluntary waivers of his right to counsel and privilege against self-incrimination were obtained and the statements he made were the product of his own free choice. This view is underscored by appellant's exercise of his right to cease the interview and consult an attorney on February 3, 1987, and is further bolstered by the evaluation of Dr. Sunbury that "Joseph Murphy has sufficient intellectual understanding of courtroom proceedings in general, and his own legal difficulties in particular. He also has the ability to cooperate with his attorneys. However, although he is not mentally retarded and he is not psychotic, he does have a character or personality disorder. He is unreliable and unpredictable and he may not tell his attorneys the whole truth. He has fluctuating internal standards and is manipulative. These behaviors represent Mr. Murphy's personality style and are not treatable as mental illness within any reasonable time period."

Accordingly, we conclude that appellant possessed the intellectual ability to make a voluntary statement. The fifth proposition of law urged by appellant is therefore overruled.

VI

In his sixth proposition of law appellant challenges the admissibility of the taped interviews on the basis that admission thereof violated his Fifth and Sixth Amendment rights to counsel. We disagree.

On four separate occasions prior to police interrogation appellant was advised of his right to counsel. On two of those occasions it was appellant who initiated the interview and in each instance he executed a waiver form acknowledging his right to counsel but nevertheless freely spoke to the police officers.

In the one situation when appellant asserted his right to counsel, his wishes were respected by the police officers and the interview ceased. The facts of the present case are therefore not unlike the circumstances addressed in Patterson v. Illinois (1988), 487 U.S. 285, 293, 108 S.Ct. 2389, 2395, 101 L.Ed.2d 261, 273, wherein the United States Supreme Court observed:

"* * * the Miranda warnings given petitioner made him aware of his right to have counsel present during the questioning. By telling petitioner that he had a right to consult with an attorney, to have a lawyer present while he was questioned, and even to have a lawyer appointed for him if he could not afford to retain one on his own, Officer Gresham and ASA [Assistant State's Attorney] Smith conveyed to petitioner the sum and substance of the rights that the Sixth Amendment provided him. `Indeed, it seems self-evident that one who is told he' has such rights to counsel `is in a curious posture to later complain' that his waiver of these rights was unknowing. Cf. United States v. Washington, 431 U.S. 181, 188 [ 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238, 245] (1977). There is little more petitioner could have possibly been told in an effort to satisfy this portion of the waiver inquiry." See, also, State v. Hooks (1988), 39 Ohio St.3d 67, 70, 529 N.E.2d 429, 432. We therefore conclude that the sixth proposition of law is without merit.

VII

In his seventh proposition of law, appellant contends that the trial court erred in permitting the admission of his interview with police officers without redacting it to delete references to previous crimes committed by him and his remark that he was prepared to submit to a polygraph examination.

Appellant's challenge to references to his prior criminal acts is without merit. The references were similar to those made by counsel for appellant to eight of the eventual jurors during voir dire. Thus, any error in failing to redact the interview was nonprejudicial because counsel for appellant had already apprised members of the jury regarding their substance.

Appellant's challenge to the admission of his statement expressing his willingness to undergo a polygraph examination is likewise without merit. First, appellant failed to object at trial to the admission of his statement relative to the polygraph examination and failed to make it a basis for an assignment of error before the court of appeals. Accordingly, the issue is waived for purpose of our review. State v. Walker (1978), 55 Ohio St.2d 208, 9 O.O.3d 152, 378 N.E.2d 1049. Assuming arguendo that the issue is preserved for our consideration, it would appear that the reference to the polygraph examination most likely operated to the benefit of appellant despite the questionable merit of the procedure itself. Accordingly, the seventh proposition of law is overruled.

VIII

In his eighth proposition of law, appellant contends that the jurors were not properly sequestered during the penalty phase and that the unsupervised access afforded jurors to their family members to obtain changes of clothing was, in essence, presumptively prejudicial. We disagree.

R.C. 2945.33 governs the sequestration of jurors during a capital trial. It provides:

"When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. The court, except in cases where the offense charged may be punishable by death, may permit the jurors to separate during the adjournment of court overnight, under proper cautions, or under supervision of an officer. Such officer shall not permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. Such officer shall not communicate to any person, before the verdict is delivered, any matter in relation to their deliberation. Upon the trial of any prosecution for misdemeanor, the court may permit the jury to separate during their deliberation, or upon adjournment of the court overnight. "In cases where the offense charged may be punished by death, after the case is finally submitted to the jury, the jurors shall be kept in charge of the proper officer and proper arrangements for their care and maintenance shall be made as under section 2945.31 of the Revised Code." (Emphasis added.)

In Remmer v. United States (1954), 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, 656, the United States Supreme Court observed:

"In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140 [ 13 S.Ct. 50, 36 L.Ed. 917]; Wheaton v. United States, 8 Cir., 133 F.2d 522, 527." (Emphasis added.)

The presumption of prejudice to which Remmer, supra, refers obtains only where communication with the juror concerns "the matter pending before the jury." Thus, it was observed in State v. Jenkins (1984), 15 Ohio St.3d 164, 236-237, 15 OBR 311, 373-374, 473 N.E.2d 264, 324:

"To prevail on a claim of prejudice due to an ex parte communication between judge and jury, the complaining party must first produce some evidence that a private contact, without full knowledge of the parties, occurred between the judge and jurors which involved substantive matters."

Similarly, where a party alleges prejudice as a result of improper communication between a juror and members of his or her family or members of the public, he must initially demonstrate that such communication was of a substantive nature. In the case at bar, appellant has relied on a mere presumption that communications between jurors and their families in the course of making overnight arrangements during sequestration concerned matters at issue in the present case. No evidence has been proffered by appellant to support the allegation. To the contrary, what inquiry was made of the jurors by the trial court reveals that, to a person, they indicated that no discussion of the case occurred between them and members of their families or the general public. Appellant has therefore failed to demonstrate that any presumptively prejudicial conversations took place. The eighth proposition of law is therefore overruled.

IX

In his ninth proposition of law appellant contends that the trial court precluded the jury from considering the psychological age of appellant. This argument misstates what transpired at trial. During trial, evidence was adduced regarding the mental capacity of appellant. In the course of their deliberations the jury inquired of the court whether the mitigating factor of youth concerned chronological or psychological age. The court responded that it addressed chronological age. On this basis, appellant argues that the court precluded the jury from considering his diminished mental capacity. The argument of appellant is without merit.

First, the response of the trial court was a correct statement of the law. In State v. Landrum (1990), 53 Ohio St.3d 107, 112, 559 N.E.2d 710, 718, the court stated:

"`The youth of the offender' as used in R.C. 2929.04(B)(4) may refer to chronological age."

Second, the court, by correctly advising the jury regarding the import of the mitigating factor contained in R.C. 2929.04(B)(4), did not preclude the jury from considering the mental state of appellant under either R.C. 2929.04(B)(3) ( i.e., mental disease or defect) or R.C. 2929.04(B)(7) ( i.e., other factors relevant to the imposition of the death sentence). While the better practice would have been for the trial court to instruct the jury that the psychological age of the appellant could be considered in the context of these other mitigating factors, such a remark would not have been responsive to the specific question posed by the jury.

Inasmuch as the instruction of the court was an accurate statement of the law and did not preclude the jury from considering the mental capacity of appellant in the context of other mitigating factors, the ninth proposition of law is overruled.

X

In his tenth proposition of law appellant contends that the trial court failed to consider the mitigating evidence adduced on his behalf during the penalty phase of the trial. This argument is without merit. In essence, the objections of appellant are directed to the conclusion of the trial court that the mitigating evidence was unpersuasive. A review of the sentencing opinion reveals that the mitigating evidence presented by appellant was considered but was given little weight.

The analysis conducted by the trial court is therefore wholly consistent with the requirements of R.C. 2929.03. As we observed in State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph two of the syllabus:

"While R.C. 2929.04(B)(7) evinces the legislature's intent that a defendant in a capital case be given wide latitude to introduce any evidence the defendant considers to be mitigating, this does not mean that the court is necessarily required to accept as mitigating everything offered by the defendant and admitted. The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight."

Inasmuch as the trial court considered the mitigating evidence adduced by appellant, the tenth proposition of law is overruled.

XI

In his eleventh proposition of law appellant challenges the instruction given by the trial court relative to jury consideration of mitigating factors. The instruction stated that "[m]itigating factors are factors that[,] while they do not justify or excuse the crime, nevertheless may be considered by you as extenuating or reducing the degree of the Defendant's blame or punishment." Appellant did not object to this instruction during trial. However, defense counsel did request instructions which included the aforementioned language but which also embraced a more detailed and fact-specific charge tailored to appellant's circumstances. The instruction proffered by counsel for appellant was rejected by the trial court. We will therefore proceed on the basis that appellant has preserved this issue for our review.

Appellant contends that the given instruction focuses unduly on culpability and precluded the jury from considering factors such as whether the death sentence is an appropriate penalty. In support of this view appellant cites our decision in State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831. The reliance upon Holloway by appellant is misplaced. The trial court in Holloway limited its consideration to mitigating factors that would reduce the defendant's culpability. No such instruction was given in the case at bar. Instead, the challenged instruction includes as mitigating factors not only those that reduce the degree of blame, but those that reduce the degree of punishment.

Accordingly, the eleventh proposition of law is overruled.

XII

Appellant contends in his twelfth proposition of law that the jury was improperly permitted to consider duplicative aggravating circumstances inasmuch as the aggravated robbery charged in the first specification and the aggravated burglary charged in the second specification were part and parcel of the same course of conduct. Defense counsel did not object at trial to the submission of both aggravating circumstances to the jury. Irrespective of this deficiency, the proposition of law is rejected on authority of State v. Barnes (1986), 25 Ohio St.3d 203, 25 OBR 266, 495 N.E.2d 922. In Barnes it was observed: "[T]he facts of this case demonstrate that two separate offenses, aggravated burglary and aggravated robbery, were committed. The crime of aggravated burglary was complete when appellant trespassed into an occupied structure with the intent to commit a theft offense or felony, and threatened to inflict harm on another. See R.C. 2911.11. The distinct offense of aggravated robbery was complete when appellant, while committing a theft offense, inflicted serious physical harm on the victim, to the extent of killing him." Id. at 207, 25 OBR at 269, 495 N.E.2d at 925.

The present case is therefore factually indistinguishable from Barnes on this issue inasmuch as the statutory elements of the underlying offenses are distinct. The aggravated burglary committed by appellant was complete upon his trespass into the home of the victim, with a deadly weapon, with the purpose to commit a theft offense. See R.C. 2911.11. The aggravated robbery was complete when he committed a theft offense while having a deadly weapon under his control. See R.C. 2911.01. The commission of each offense was not dependent upon commission of the other. Each was therefore sufficient to constitute a separate aggravating circumstance.

Assuming arguendo that the specifications were duplicative, any prejudicial effect may be remedied by this court in the course of our independent review of the aggravating circumstances and mitigating factors. State v. Jenkins (1984), 15 Ohio St.3d 164, 200, 15 OBR 311, 341-342, 473 N.E.2d 264, 296-297.

Accordingly, the twelfth proposition of law is overruled.

XIII

In his thirteenth proposition of law appellant challenges the employment of peremptory challenges by the state to remove jurors who expressed reservations about the death penalty. This practice was considered and approved by this court in State v. Esparza (1988), 39 Ohio St.3d 8, 529 N.E.2d 192. The thirteenth proposition of law is consequently overruled.

XIV

In his fourteenth proposition of law appellant questions both the timing and substance of the court's instruction to the jury relative to his unsworn statement presented in mitigation. In essence, the trial court apprised the jury that appellant was entitled by law to make the statement, that, except for the lack of an oath, the credibility of the appellant was to be evaluated on the same basis as would be applied to any other person providing testimony and that the willingness to take an oath was a factor in assessing the veracity of a witness.

The aforementioned statement is a balanced and accurate statement of the law. Moreover, Crim.R. 30(B) specifically authorizes the trial court to provide a cautionary instruction "at the commencement and during the course of a trial." It was therefore permissible for the court to provide the instruction just before appellant's statement.

Appellant further objects to the reference by the prosecuting attorney during closing argument that appellant was unwilling to take the oath and submit to cross-examination. However, in State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, at paragraph two of the syllabus, this court specifically held that:

"Where the defendant chooses to make an unsworn statement in the penalty stage of a capital trial, the prosecution may comment that the defendant's statement has not been made under oath or affirmation, but such comment must be limited to reminding the jury that the defendant's statement was not made under oath, in contrast to the testimony of all other witnesses."

The fourteenth proposition of law is therefore overruled.

XV

In his fifteenth proposition of law appellant objects to the admission of what he contends are gruesome photographs. The photographs depicting the victim as she was found on her living room floor, while revealing the wound and the presence of some quantities of blood, are not gruesome in nature. The autopsy photograph of the victim with her head tilted back to expose the wound, while gruesome, was both illustrative of the testimony of the pathologist and germane to the manner in which the wound was inflicted. While the angle of the head in the photograph exaggerated the width of the incision, it was adequately established on cross-examination that the positioning of the head and neck of the victim accounted for the exaggeration. The evidence as a whole was therefore not misleading.

Inasmuch as the probative value of the photographs outweighed the danger of prejudice, they were properly admitted. State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. The fifteenth proposition of law is therefore overruled.

XVI

Appellant, in his sixteenth proposition of law, contends that the trial court erred in allowing the admission into evidence of the transcripts of the tape recordings of his interview with law enforcement personnel when the tapes had already been admitted. This argument is without merit.

First, appellant failed to request a limiting instruction from the court that the tapes, not the transcripts, were the evidence to be considered by the jury. Therefore, the trial court was not afforded the opportunity to consider the substance of appellant's present argument that the transcripts inaccurately reflect the contents of the tape.

More significantly, appellant did not identify any alleged discrepancies between the tapes and transcripts at trial, nor has appellant done so on appeal. Accordingly, no prejudice has been shown.

The sixteenth proposition of law is overruled.

XVII

In his seventeenth proposition of law, appellant contends that the trial court erred by permitting a police officer to read from his report rather than testify from memory and that his use of the report was not limited to refreshing his recollection as required by Evid.R. 612. The testimony at issue concerned the officer's investigation at the Lawson's store, the location where the wallet of Mrs. Predmore was found and the address of the appellant. The trial court concluded that these facts were adduced from the memory of the witness as refreshed by his report.

In Weis v. Weis (1947), 147 Ohio St. 416, 34 O.O. 350, 72 N.E.2d 245, this court stated in paragraph one of the syllabus:

"The extent to which a witness may refresh his memory from records made by him in the regular course of business lies within the sound discretion of the trial court."

We conclude that the trial court did not abuse its discretion in permitting the police officer to refer to his report to refresh his memory about facts which are, at best, peripheral to the issues at trial. The seventeenth proposition of law is therefore overruled.

XVIII

In his eighteenth proposition of law, appellant contends that the trial court erred in excusing potential juror Devenis Hall for cause. A review of the voir dire of Hall reveals that he had deep religious and moral objections to imposition of the death penalty. While such misgivings by themselves would not have disqualified Hall from serving on the jury, his responses to inquiries by counsel and the court reveal that they would have seriously interfered with his ability to consider a death sentence as an appropriate penalty.

As observed by the United States Supreme Court in Wainwright v. Witt (1985), 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841, 849: "`[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.' [ Adams v. Texas (1980), 448 U.S. 38] at 45 [ 100 S.Ct. 2521 at 2526, 65 L.Ed.2d 581 at 589] (emphasis added)." See, also, State v. Tyler (1990), 50 Ohio St.3d 24, 553 N.E.2d 576.

The eighteenth proposition of law is overruled.

XIX

In his nineteenth proposition of law appellant maintains that the admission of both physical evidence and photographs thereof was cumulative and irrelevant. We disagree.

Appellant specifically objects to photographs of articles of clothing belonging to him, the purse of Mrs. Predmore, and penny wrappers, in addition to the items themselves. While Evid.R. 403(B) allows the discretionary exclusion of evidence if it is cumulative, appellant has failed to demonstrate that the trial court abused its discretion by failing to exclude the photographs. In State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273, this court remarked:

"A trial court may reject an otherwise admissible photograph which, because of its inflammatory nature, creates a danger of prejudicial impact that substantially outweighs the probative value of the photograph as evidence. Absent such danger, the photograph is admissible."

The photographs at issue merely depict the items admitted into evidence at the location where they were found. They are not inflammatory in nature but support the testimony of the police officer who discovered them regarding where the items were located.

The nineteenth proposition of law is therefore overruled.

XX

Appellant contends in his twentieth proposition of law that the trial court erred in the admission of psychological reports containing references to the uncharged theft offense. At trial, appellant did not challenge the report on this basis. Inasmuch as the issue was not preserved by a timely objection below, it is waived for purposes of our review. See State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. Assuming that appellant has adequately preserved the issue for our consideration, the reference to one offense in psychological reports which would nevertheless have been subsumed in the more serious offenses included in the indictment and properly referred to by Dr. Sunbury in his report can hardly be considered prejudicial in nature.

The twentieth proposition of law is therefore overruled.

XXI

In his twenty-first proposition of law appellant challenges the standard of reasonable doubt contained in R.C. 2901.05 and the jury instruction based thereon. In particular, appellant claims that the statutory definition merely requires clear and convincing evidence rather than that sufficient to prove his guilt and establish his sentence beyond a reasonable doubt.

The twenty-first proposition of law is overruled on authority of State v. Nabozny (1978), 54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E.2d 784.

XXII

In his twenty-second proposition of law, appellant contends that the trial court erred in permitting an unrecorded jury view of his home, the home of Mrs. Predmore and the alley behind the two residences. This omission, appellant maintains, deprived him of a complete record of the trial. However, appellant did not request that a record be made of the proceeding nor has he identified anything that transpired during the jury view which affected his ability to obtain a fair trial.

Moreover, appellant has failed to utilize App.R. 9(E) to preserve for appellate review what he believes was improper or prejudicial to his case.

Accordingly, this proposition of law is overruled.

XXIII

In his twenty-third proposition of law appellant challenges the constitutionality of the capital sentencing scheme in Ohio, on the basis that it requires the death penalty if aggravating circumstances outweigh the mitigating factors, with no option for mercy. This proposition of law is overruled on authority of State v. Jenkins, supra.

XXIV

In his twenty-fourth proposition of law appellant contends that the indictment failed to identify the elements of the offenses underlying each of the charged crimes. In particular, appellant maintains that the indictment fails to identify the precise type of conduct by which he violated (1) R.C. 2911.01 (aggravated robbery), the offense underlying the charge of aggravated murder and the first specification to it, and (2) R.C. 2911.11 (aggravated burglary), the offense underlying the second specification. He also maintains that the second, third and fourth counts did not name the offenses they charged (robbery, burglary and extortion). He therefore contends that the indictment did not provide him with adequate notice of the charges against which he must defend. This argument must be rejected for two reasons. First, appellant received a bill of particulars which supplied much of the information he now claims he lacked. Second, this court has previously held, in State v. Landrum (1990), 53 Ohio St.3d 107, 119, 559 N.E.2d 710, 724, that Crim.R. 7(B) authorizes indictments to utilize the words of the applicable section of the statute. The indictment in the case at bar tracks the wording of R.C. 2929.04(A)(7), 2903.01(B), 2911.01(A)(1), 2911.11(A)(3) and 2905.11(A)(2).

Accordingly, the twenty-fourth proposition of law is overruled.

XXV

In his twenty-fifth proposition of law, appellant challenges the constitutionality of the proportionality review provided in R.C. 2929.05. The basis for the challenge is that appellate review of proportionality is limited only to other cases where the death sentence was imposed. This proposition of law is rejected on authority of State v. Steffen, supra, and State v. Davis (1991), 62 Ohio St.3d 326, 351, 581 N.E.2d 1362, 1382.

XXVI

In his twenty-sixth proposition of law appellant challenges the constitutionality of the Ohio death penalty statute on various additional grounds. These challenges were considered and rejected in State v. Jenkins, supra, and State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795.

XXVII

Appellant has filed a supplemental proposition of law on the basis that the jury did not explicitly find that he was "the principal offender in the commission of the aggravated murder or, if not the principal offender, [that he] committed the aggravated murder with prior calculation and design," as required by R.C. 2929.04(A)(7). The memorandum in support of the supplemental proposition of law filed on Ontober 13, 1992, acknowledges that this issue was not the subject of an objection at trial, was not presented to the court of appeals and was not raised in a timely fashion before this court. It is therefore waived for purposes of our review. Nevertheless, appellant urges this court to consider the issue under the plain error doctrine. We will do so, see State v. Sneed (1992), 63 Ohio St.3d 3, 10, 584 N.E.2d 1160, 1167, but we nonetheless reject the substance of the argument.

Appellant contends that the omission of the principal offender language from the verdict form shows that there was no jury finding on this issue as required by R.C. 2929.04(A)(7). This argument is rejected for two reasons. As an initial matter, the jury was specifically instructed that it could not return a verdict of guilty on the specifications contained in the indictment unless it determined that appellant was the principal offender. A presumption exists that the jury has followed the instructions given to it by the trial court. See State v. Fox (1938), 133 Ohio St. 154, 10 O.O. 218, 12 N.E.2d 413, and Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566.

Secondly, the contention of appellant that he was not the principal offender is at variance with the evidence presented at trial. The notion that someone other than appellant was the perpetrator of the aggravated murder of Mrs. Predmore rests exclusively upon the bald assertion of appellant that his brother-in-law Alvie Coykendall committed the crime. There is not a scintilla of evidence supporting this theory of the case. Rather, all of the evidence points to appellant as solely responsible for the murder. Accordingly, there is no basis upon which to conclude that the jury did not find that appellant was the principal offender in the present case. See State v. Bonnell (1991), 61 Ohio St.3d 179, 184, 573 N.E.2d 1082, 1087. The supplemental proposition of law is therefore overruled.

XXVIII

In accordance with R.C. 2929.05(A), this court is obligated to conduct an independent review to determine whether the aggravating circumstances presented by the state outweigh the mitigating factors adduced by appellant.

Appellant was found guilty as the principal offender in an aggravated murder committed in the course of the commission of an aggravated robbery and in the course of the commission of an aggravated burglary in violation of R.C. 2929.04(A)(7). The commission of either of the underlying felonies was sufficient to permit the imposition of a sentence of death upon appellant as the principal offender.

Appellant submitted mitigating evidence pursuant to R.C. 2929.04(B)(2), (3), (4) and (7). These subsections require consideration of whether appellant was under duress at the time of the commission of the offense, whether appellant was suffering from a mental disease or defect at the time of the commission of the offense, the youth of appellant and other factors relevant to the imposition of the sentence of death.

It is undisputed that the mental capacity of appellant places him in the lowest six or seven percent of the population. Appellant was born into an impoverished background, had an alcoholic father, was the victim of verbal, physical and sexual abuse as a child and was generally maladjusted throughout his life. He was generally isolated from other members of his family and was often the brunt of taunting by his parents and siblings. He was also relatively young at the time of the commission of the offense.

While these family circumstances are indeed tragic, they are nevertheless outweighed by the aggravating circumstances presented by the instant case. Appellant had indeed experienced some family difficulties shortly before the commission of the aggravated murder, including the serious injury of his sister and the alleged infidelity of his girlfriend. However, neither of these circumstances constitutes duress as required by R.C. 2929.04(B)(2). Nor does appellant's low intelligence quotient establish that he suffered from a mental disease or defect which deprived him of substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. See R.C. 2929.04(B)(3). While there was expert testimony that the mental condition of appellant led to rash and impulsive behavior and that such behavior explains his actions with respect to Mrs. Predmore, such a conclusion is contradicted by the circumstances surrounding the crime. Appellant and Mrs. Predmore were acquainted. He had performed yardwork for her in the past. His extortion note demanding money and his entry into her home with a knife reveal that the crime was planned and that the motivation of appellant was financial in nature. It was not the product of an impulsive act.

While appellant was relatively young (twenty-one years, ten months, at the time of the offense), he was of sufficient maturity to appreciate the gravity of his conduct.

His family circumstances are certainly sufficient to establish a mitigating factor under R.C. 2929.04(B)(7). However, these circumstances, while at times unsettling, fail to overcome the aggravating circumstances in the present case.

Accordingly, we conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.

XXIX

This court is also required, by R.C. 2929.05(A), to determine whether the sentence of death imposed is appropriate in view of our disposition of other capital cases involving similar circumstances. We conclude that the sentence is appropriate in this case, as it is neither excessive nor disproportionate. We have approved the death sentence in cases involving murders committed in the course of an aggravated robbery, State v. Hooks (1988), 39 Ohio St.3d 67, 529 N.E.2d 429; State v. Jenkins, supra; State v. Williams (1986), 23 Ohio St.3d 16, 23 OBR 13, 490 N.E.2d 906; State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523; and aggravated burglary, State v. Hooks, supra; State v. Wiles (1991), 59 Ohio St.3d 71, 571 N.E.2d 97; State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237; State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831; State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383; and State v. Barnes (1986), 25 Ohio St.3d 203, 25 OBR 266, 495 N.E.2d 922.

We therefore conclude that the death sentence is neither excessive nor disproportionate in the case sub judice.

Accordingly, the judgment of the court of appeals is hereby affirmed.

Judgment affirmed.

SWEENEY, HOLMES, DOUGLAS and RESNICK, JJ., concur.

MOYER, C.J., WRIGHT and H. BROWN, JJ., dissent.

MOYER, C.J., dissenting.

For the reasons that follow, I would reverse the sentence of death. I therefore must respectfully dissent from the opinion of the majority.

Pursuant to R.C. 2929.05, we must review proposed errors, weigh aggravating circumstances against mitigating factors, and compare the sentence to those imposed in similar cases. Because I believe the aggravating circumstances do not outweigh the mitigating factors, I would vacate the sentence of death.

R.C. 2929.04(B)(7) requires consideration of "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death."

My consideration of defendant's age of twenty-one years and ten months at the time of the crime and the conditions created for him by his family causes me to conclude that defendant should not be sentenced to death.

The majority acknowledges that defendant was born into an impoverished background, had an alcoholic father, was the victim of verbal, physical, and sexual abuse as a child, and was generally maladjusted throughout his life. He was generally isolated from other members of his family and was often the brunt of taunting by his parents and siblings.

That description of defendant's life is accurate but not complete. In fact, in all of the death penalty cases I have reviewed, I know of no other case in which the defendant, clearly guilty of the crime as defendant is here, was as destined for disaster as was Joseph Murphy as a direct result of the conditions to which he was exposed by his family.

Testimony adduced at trial revealed appellant lived in desperate poverty with an unloving, unsupportive and abusive family. Appellant was raised in a home in West Virginia that family members described as a "shack." The home had no hot water or plumbing. The family received public assistance and the father was an alcoholic.

From an early age, appellant's troubles were compounded. When he began school, he was diagnosed as hyperactive. Although he attended school, his antisocial behavior was a constant problem and he was not able to attain an education beyond the third-grade level. His behavior included vandalism, setting fires, and an inability to interact in a normal way with other children. Repeated attempts at home tutoring and institutionalization proved unsuccessful.

There can be little question that defendant's behavior was in large measure a direct result of treatment by his family. Testimony of family members illustrates an environment of neglect, physical abuse and psychological torment. Dinner would often not be provided to him, and appellant was forced to go to family friends for food. He started numerous fires in his home. Once, when he was an infant, he was left in their burning house while the rest of the family sought safety.

Further evidence from family members showed a history of beatings by appellant's mother. In appellant's unsworn statement, he alleged that he would be punished and beaten for the misbehavior of his brothers. He stated he would have to wear long pants and long-sleeve shirts to hide his bruises when visitors came to the family home.

Appellant also alleged sexual abuse as a child by family friends and staff members at two institutions.

Psychological testimony established that appellant suffers from a personality disorder that is "severe, chronic and disabling" and "impairs him in a variety of areas of his psychological and social functioning." An evaluation found his emotional age to be equivalent to that of a five- or six-year-old child. His intelligence has been determined to be in the bottom six to seven percent of the population.

Evidence also revealed that appellant's upbringing has resulted in destructive behavior and a profound ambivalence toward others. "He is motivated by very primitive feelings of rage, which have their origin in an extremely chaotic, dysfunctional family. His father was both mentally ill and a substance abuser and his mother was a dependent, ineffective, rejecting figure. He was often scapegoated in the family and punished abusively." He was never provided the intense treatment, such as daily psychotherapy in a stable setting, that was necessary to foster normal development.

Dr. Schmidtgoessling testified that defendant was the family scapegoat. She defined the phenomenon as follows: "Scapegoat theory basically is a theory about family functioning, and the scapegoat is the person in the family that all the problems get sort of dumped on." This results when a troubled family is unable to resolve its problems and one member of the family is singled out for blame, not only for problems caused by the scapegoat, but for problems caused by other family members. "[C]onsequently in times of family tension, the energy level or the balance of that family is often kept even by the scapegoat acting out, doing all sorts of inappropriate behavior, going on spending sprees, physically acting out, becoming sick * * *."

Appellant committed a heinous crime. His youth, standing alone, would not be sufficient mitigation to overturn the trial court's sentence of death. However, defendant is a person who, because of his family conditions, had virtually no chance in life. The crime was committed, not after defendant had matured to an age when education, normal life experiences, and maturity could have intervened, but so soon after the brutally abusive conditions created by his family that I am compelled to find that the death sentence is not appropriate for defendant in this case. This case is not similar to State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, as suggested by the state. In Maurer, the defendant had served in the Marine Corps, been in prison, "successfully completed" a program for recovering alcoholics, and was married and lived with his wife and four stepchildren. Maurer had clearly made life choices as an adult before committing murder. In describing the conditions under which defendant lived in Maurer, this court did not even discuss his early life. We stated the following:

"The types of circumstances under which appellant was living, i.e., alcohol problems, loss of job, etc., are the sort that numerous people live under without turning to criminal conduct, much less the serious crime that appellant was convicted of here. Moreover, appellant, unlike many others with similar problems, was given the opportunity for rehabilitation at Newton House and the Community Treatment and Correction Center, and, despite this help, continued on a path of conduct which led to this offense." Id. at 245, 15 OBR at 384, 473 N.E.2d at 777.

Those words hardly describe the conditions under which defendant lived. Because I believe the aggravating circumstances do not outweigh the mitigating factors, I would reverse the death penalty.

WRIGHT and H. BROWN, JJ., concur in the foregoing dissenting opinion.