Opinion · Ohio Supreme Court
State v. Fautenberry
72 Ohio St. 3d 435
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1995-07-05
- Topic
- general
“[e]vidence relating to the facts attendant to the offense, however, is clearly admissible during the guilt phase.”
Citator
- Cited by
- 48 opinions
[This opinion has been published in Ohio Official Reports at72 Ohio St.3d 435
.]
THE STATE OF OHIO, APPELLEE, v. FAUTENBERRY, APPELLANT.
[Cite as State v. Fautenberry, 1995-Ohio-209
.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 94-722—Submitted March 22, 1995—Decided July 5, 1995.)
APPEAL from the Court of Appeals for Hamilton County, No. C-920734.
__________________
{¶ 1} On March 27, 1991, the Grand Jury of Hamilton County, Ohio,
returned a five-count indictment against appellant, John Fautenberry. Count One
charged Fautenberry with the aggravated murder of Joseph Daron pursuant to R.C.
2903.01, and included two specifications: first, that the murder of Daron was
committed while Fautenberry was committing, attempting to commit, or fleeing
immediately after committing or attempting to commit the offense of aggravated
robbery; and second that Fautenberry possessed a firearm when he committed the
murder. Count Two contained a second charge of aggravated murder involving the
same victim and included two specifications, namely, that the murder was part of a
course of conduct involving the purposeful killing of or attempt to kill two or more
persons, and that Fautenberry possessed a firearm while committing the offense.
The remaining counts charged Fautenberry with aggravated robbery, theft of a
motor vehicle, and theft of a credit card.
{¶ 2} On July 23, 1992, a three-judge panel accepted appellant's pleas of no
contest to each of the five charges. The panel then considered the admitted facts
and evidence, and found appellant guilty as to all counts. The evidence, including
the transcripts of several confessions appellant made to the police, established the
following.
{¶ 3} During 1990, appellant worked as a cross-country truck driver for a
company based in Portland, Oregon. In the early part of November 1990, appellant
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informed one of his supervisors that he was quitting his job because of the long
hours that were required of him as a truck driver. Thereafter, appellant spent a few
days at the Flying J Truck Stop in Portland loading and unloading trucks for money.
It was at that time that appellant met Donald Nutley. On one occasion, Nutley, who
possessed several firearms, invited appellant to go target shooting with him. The
two drove to an area near Mt. Hood, Oregon where they proceeded to fire at bottles
until approximately sunset. As they walked back to Nutley's vehicle, appellant fired
a single, fatal .38 caliber round into the right side of Nutley's head. Appellant then
stole approximately $10,000 in cash from his victim and dumped the body
somewhere in the Mt. Hood area. Nutley's body was not located until April 1991.
{¶ 4} In early February 1991, appellant was traveling from Rhode Island to
Ohio when he arrived at the Pilot Truck Plaza in Hunterdon County, New Jersey.
Appellant, out of money and in need of gasoline in order to continue his trip, met
Gary Farmer, who allegedly offered to provide appellant with food and money in
exchange for sex. Upon entering Farmer's truck, appellant fatally shot Farmer once
in the head with a .22 caliber handgun. Appellant left the body in the truck, stole
the victim's wallet, and completed his trip to Cincinnati, Ohio.
{¶ 5} After spending some time in Cincinnati, appellant left his sister's
home on February 17, 1991, with no money, no transportation, and, it appears, a
desire to travel to Oregon. Appellant began hitchhiking on Interstate 275 when
Joseph William Daron, a father of two young children, stopped his vehicle and
offered appellant a ride. Appellant explained that he was trying to reach Columbus.
Daron offered to drive appellant approximately twenty miles out of his way to a
restaurant near the junction of Interstate 71, where appellant believed he might
better be able to find a ride to Columbus. Upon reaching the restaurant, appellant
exited Daron's vehicle, reached back into the car and shot Daron twice in the right
side of his chest with the same .22 caliber handgun that he had used to kill Farmer.
After the shooting, appellant drove to a wooded area on the north bank of the Ohio
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January Term, 1995
River, where he threw Daron's body. Appellant then used Daron's vehicle, credit
cards, and cash to return to Oregon.
{¶ 6} Appellant arrived in Portland, Oregon, on February 24, 1991, and
went to a local bar to meet a friend, Wes Halbrook. Several people, including
Christine Guthrie, were invited to join the two men at Halbrook's apartment for a
private party. The following day, appellant and Guthrie traveled to Rockaway,
Oregon where they spent a few days at the Silver Sands Motel. On the return trip
to Portland, appellant drove Guthrie to a wooded area, where appellant claimed
they would find something of interest. The two walked into the woods on foot and
appellant fired three shots from his Jennings J 22 pistol into the back of Christine
Guthrie's head. Appellant then took the victim's bank credit card and address book
containing the personal identification number for the credit card, left the body in
the woods, and returned to Portland, where he used the credit card to make cash
withdrawals. Guthrie's body was not discovered until April 1991.
{¶ 7} In early March 1991, appellant traveled to Juneau, Alaska. While
there he spent his time working on a fishing boat and consuming large quantities of
alcohol. Appellant met Jefferson Diffee at some point during this period. On
March 13, 1991, appellant accompanied Diffee to the latter's apartment, where
appellant beat, handcuffed and fatally stabbed Diffee seventeen times. Shortly
thereafter, appellant was arrested by the Alaska police. He ultimately pled guilty
to the charge of first-degree murder in connection with Diffee's death, and received
the maximum sentence available under Alaska state law: ninety-nine years'
confinement without parole eligibility.
{¶ 8} Shortly after his arrest by the Alaska police, appellant made four
separate statements to various law enforcement officers concerning his
involvement with the five murders. Appellant spoke to the police in detail
concerning the sites of the murders, the manner in which he had carried out the
killings, and the locations where the police could find the victims' bodies.
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{¶ 9} After finding appellant guilty of all counts and specifications in
connection with Daron's murder, the Hamilton County three-judge panel conducted
a mitigation hearing on September 14, 1992. The panel unanimously sentenced
Fautenberry to death. Consecutive sentences were imposed for the other offenses,
except those which were merged. The court of appeals affirmed appellant's
convictions and sentence of death.
{¶ 10} This cause is before the court upon an appeal as of right.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellee.
H. Fred Hoefle and Peter Pandilidis, for appellant.
__________________
ALICE ROBIE RESNICK, J.
{¶ 11} In accordance with R.C. 2929.05(A), we are required to undertake a
three-part review of appellant's convictions and sentence of death. First, we must
review the judgment and consider the issues raised on appeal as we do in all cases.
Second, we must independently weigh the evidence disclosed in the record and
determine whether the aggravating circumstances the appellant was found guilty of
committing outweigh the mitigating factors beyond a reasonable doubt. Finally,
we must decide whether the sentence of death is appropriate after considering
whether the sentence is excessive or disproportionate to the penalty imposed in
similar cases. For the reasons which follow, we affirm the judgments of conviction
and uphold the sentence of death.
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January Term, 1995
A
I
{¶ 12} Appellant alleges in his first proposition of law that the three-judge
panel committed reversible error by considering victim-impact statements during
the penalty phase of the proceedings. The statements included expressions from
the victim's family, the victim's employer and the arresting officer concerning the
impact of Daron's death on his survivors and the appropriate sentence that should
be imposed. Specifically, the victim-impact evidence indicated that each individual
who was interviewed wanted appellant to receive "the maximum sentence"
available under the law. Appellant argues that these statements make the sentence
of death "the product, not of law and reason, but of passion and bias," as prohibited
by State v. Huertas (1990), 51 Ohio St.3d 22
,553 N.E.2d 1058
.
{¶ 13} In Huertas, this court concluded that "[e]xpressions of opinion by a
witness as to the appropriateness of a particular sentence in a capital case violate
the defendant's constitutional right to have the sentencing decision made by the jury
and judge." Id.
at syllabus. The conclusion in Huertas hinged upon the holdings of two United States Supreme Court decisions which prohibited the introduction of victim-impact evidence not directly related to the circumstances of the crime. Booth v. Maryland (1987),482 U.S. 496
,107 S.C. 2529
,96 L.Ed.2d 440
, and South Carolina v. Gathers (1989),490 U.S. 805
,109 S.Ct. 2207
,104 L.Ed.2d 876
. Booth and Gathers were eventually overruled in Payne v. Tennessee (1991),501 U.S. 808
,111 S.Ct. 2597
,115 L.Ed. 2d 720
, where the Supreme Court determined, "if a State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed."Id. at 827
,115 L.Ed.2d at 736
,111 S.Ct. at 2609
.
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{¶ 14} Those statements which describe the tragic impact of Daron's murder
on his family and friends clearly fall within the scope of victim evidence
contemplated by Payne. The expressions of opinion relating to the appropriate
sentence to be imposed against appellant, however, reach beyond Payne.1 As a
result, we find error in the admission of that part of the victim-impact statements
which relate to sentencing recommendations. Nevertheless, we are not persuaded
that such error warrants reversal.
{¶ 15} A review of the three-judge panel's decision in the instant action fails
to demonstrate that the judges contemplated or relied upon the victim-impact
evidence which was available to them. "Absent an indication that the panel was
influenced by or considered victim impact evidence in arriving at its sentencing
decision," the admission of such is not reversible error. State v. Post (1987), 32 Ohio St.3d 380, 384
,513 N.E.2d 754, 759
; see also, State v. Cooey (1989),46 Ohio St.3d 20, 33
,544 N.E.2d 895, 912
. Furthermore, because we presume that "'*** in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary[,]'" we reject appellant's first proposition of law. Post,32 Ohio St.3d at 384
,513 N.E.2d at 759
, quoting State v. White (1968),15 Ohio St.2d 146, 151
,44 O.O.2d 132, 136
,239 N.E.2d 65, 70
.
{¶ 16} At this juncture, we note that our decision in State v. Loza (1994),
71 Ohio St.3d 61
,641 N.E.2d 1082
, included a limited discussion of victim-impact
evidence which, upon further reflection and review, requires some clarification.
The appellant's twenty-fifth proposition of law in Loza in part challenged
statements made by the prosecutor concerning the fact that one of the four murdered
victims was a pregnant woman, and that the killing of the four people represented
1. We further recognize that while R.C. 2930.13(C)(4), which became effective in October 1994,
authorizes a trial court to consider a written or oral statement by the victim as to the victim's
recommended sanction for the defendant, similar recommendations by family and friends are not
statutorily authorized.
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January Term, 1995
a loss of "many years" of combined potential life expectancy. Loza argued that
these statements, made during the penalty phase of the trial, constituted
impermissible victim-impact evidence which denied him a fair penalty
determination. We rejected this argument, but now offer some additional
discussion for doing so.
{¶ 17} While the prosecutor's comments in Loza fit within the fairly broad
definition of victim-impact evidence contemplated by Payne, supra,
they also
represent a recitation of the facts and circumstances surrounding the offense that
were introduced during the guilt phase of the trial. True victim-impact evidence,
pursuant to the terms of R.C. 2930.13, 2930.14 and 2947.051, shall be considered
by the trial court prior to imposing sentence upon a defendant, not during the guilt
phase of the proceedings. Evidence relating to the facts attendant to the offense,
however, is clearly admissible during the guilt phase. As a result, we find that
evidence which depicts both the circumstances surrounding the commission of the
murder and also the impact of the murder on the victim's family, may be admissible
during both the guilt and the sentencing phases. For that reason, we decided that
the statements made by the prosecutor in Loza were properly admitted.
II
{¶ 18} In his second proposition of law, appellant asserts that the trial court
relied upon nonstatutory aggravating circumstances to justify the death sentence.
Appellant focuses upon the portion of the panel's opinion titled "WEIGHING
AGGRAVATING CIRCUMSTANCE [sic] AGAINST MITIGATING
FACTORS," where the panel, following a discussion of the mitigating factors,
stated:
"However, these mitigating factors pale before the simple fact that
defendant's actions were plotted, vicious, persistent and utterly callous. Joseph
Daron was shot not once, but twice. His belongings including money[,] credit
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cards, [B]ible and even his vehicle were stolen by the defendant. Then his body
was thrown into a wooded area near the Ohio River.
"The actions of the defendant were contemplated and calculating as he
asked Joseph Daron to drive twenty miles out of his way, all the time knowing he
would kill Daron and steal his belongings. John Fautenberry's calculation[s]
continued after the shooting as he drove to the Ohio River looking for a place to
hide Joseph Daron's body."
{¶ 19} Appellant contends that this portion of the trial court's sentencing
opinion represents an impermissible conversion of the nature of the crime into
nonstatutory aggravating circumstances. We disagree. In its opinion, the panel
specifically set forth the statutory aggravating circumstances that had been proven
beyond a reasonable doubt: first, that the murder of Joseph Daron was part of a
course of conduct involving the purposeful killing of two or more people (R.C.
2929.04[A][5]), and second, that the murder occurred while appellant committed
the offense of aggravated robbery (R.C. 2929.04[A][7]). Only then did the trial
court turn to a discussion of the facts surrounding the commission of the murder.
{¶ 20} It is well settled that, "[u]nder R.C. 2929.03(F), a trial court or three-
judge panel may rely upon and cite the nature and circumstances of the offense as
reasons supporting its finding that the aggravating circumstances were sufficient to
outweigh the mitigating factors." State v. Stumpf (1987), 32 Ohio St.3d 95
,512 N.E.2d 598
, paragraph one of the syllabus. See, also, State v. Smith (1991),61 Ohio St.3d 284, 293
,574 N.E.2d 510, 518
; State v. Lott (1990),51 Ohio St.3d 160, 171
,555 N.E.2d 293, 305
. The trial court in the case at bar clearly understood the
difference between statutory aggravating circumstances and additional facts which
depicted the nature and circumstances of the murder. Furthermore, it is only by
considering both the facts surrounding the crime and also the statutory aggravating
circumstances that judges and juries can prevent the implementation of a rigid and
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January Term, 1995
mechanistic sentencing scheme. State v. Jester (1987), 32 Ohio St.3d 147, 153
,512 N.E.2d 962, 969
.
{¶ 21} Upon thorough review and consideration of the trial court's opinion,
we find that the nature and circumstances of the offense were simply utilized to
support the trial court's finding that the aggravating circumstances outweighed the
mitigating factors. Appellant's second proposition is accordingly overruled.
III
{¶ 22} Appellant alleges in his third proposition of law that the three-judge
panel failed to consider several offered mitigating factors. R.C. 2929.04(B)
requires the trial court to consider and weigh against the proven aggravating
circumstances the nature and circumstances of the offense, the history, character
and background of the offender, and seven mitigating factors, including "[a]ny
other factors that are relevant to the issue of whether the offender should be
sentenced to death." Appellant specifically challenges the trial court's conclusion
that age (R.C. 2929.04[B][4]), lack of prior criminal record (R.C. 2929.04[B][5]),
and cooperation with police (R.C. 2929.04[B][7]) were not mitigating factors in
this case.
{¶ 23} Appellant focuses his challenge in part on the claimed difference
between the trial court giving little or no weight to a mitigation factor and the trial
court finding that a mitigating factor does not exist. In the case at bar, the three-
judge panel determined that neither youth nor lack of a prior criminal record existed
as a mitigating factor, since appellant was twenty-seven-years old at the time of the
murder and had one prior felony conviction for carrying a concealed weapon, in
addition to at least one misdemeanor conviction. The trial court's conclusions are
consistent with previous decisions of this court. See, e.g., State v. Campbell (1994),
69 Ohio St.3d 38, 54
,630 N.E.2d 339, 353
(youth mitigation factor does not apply where defendant is twenty-seven years of age at time of offense); State v. Brewer (1990),48 Ohio St.3d 50, 64
,549 N.E.2d 491, 505
(youth mitigation factor not
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established when defendant is twenty-five-years old at time of offense); State v.
Lott, supra,
51 Ohio St.3d 160, 173
,555 N.E.2d 293, 306
(two previous felonies
make R.C. 2929.04[B][5] "inapplicable" as a mitigating factor). Clearly both age
and prior criminal record were considered in the mitigation process, but they were
simply negated by the facts at hand.
{¶ 24} Appellant further claims that the trial court did not properly consider
his cooperation with police or his history, character and background. This
argument is also without merit. The sentencing opinion specifically mentions the
fact that appellant confessed to each of the murders and cooperated with the law
enforcement officers. "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." State v. Steffen
(1987), 31 Ohio St.3d 111
, 31 OBR 273,509 N.E.2d 383
, paragraph two of the syllabus. See, also, State v. Davis (1991),62 Ohio St.3d 326, 346
,581 N.E.2d 1362, 1379
. Moreover, this court independently weighs the aggravating circumstances against the mitigating factors of the crime. That review can negate any claim of error in previous reviews. State v. Lott,51 Ohio St.3d at 170
,555 N.E.2d at 304
. Appellant's proposition of law is therefore without merit.
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January Term, 1995
IV
{¶ 25} In his fourth proposition of law, appellant argues prejudicial error
because the sentencing opinion written by the trial court listed all statutory
mitigating factors, including those not raised by defense counsel.
{¶ 26} In State v. DePew (1988), 38 Ohio St.3d 275, 289
,528 N.E.2d 542, 557-558
, this court determined that if a defendant chooses to refrain from raising some or all of the mitigating factors available to him under R.C. 2929.04(B), those factors not raised may not be referred to or commented upon by the trial court or prosecution. The trial court's reference to factors not introduced by the defendant, however, does not constitute reversible error.Id. at 290
,528 N.E.2d at 558
. See, also, State v. Lorraine (1993),66 Ohio St.3d 414, 425
,613 N.E.2d 212, 221
. We also presume, unless clearly demonstrated otherwise, that the panel based its decision on only relevant, material, and competent evidence. State v. Post,32 Ohio St.3d at 384
,513 N.E.2d at 759
; State v. White, supra,15 Ohio St.2d at 151
,44 O.O.2d at 136
,239 N.E.2d at 70
. Furthermore, our independent review of the sentence can rectify any sentencing errors that may have occurred. State v.Lott, supra.
Appellant's fourth proposition of law is overruled.
V
{¶ 27} In his fifth proposition of law, appellant asserts that the state failed
to prove beyond a reasonable doubt that the aggravating circumstances outweigh
the mitigating factors. As we discussed in State v. Sowell (1988), 39 Ohio St.3d 322, 334
,530 N.E.2d 1294, 1307
, "[t]he 'weighing' procedure *** is not a mere
counting process of the number of aggravating circumstances and the number of
mitigating factors. It is a reasoned judgment as to which situations require the death
sentence and which situations require life imprisonment, based upon the totality of
the evidence presented by both parties."
{¶ 28} A review of the instant record reveals that the evidence presented
was sufficient for the three-judge panel to determine that the aggravating
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circumstances outweigh the mitigating factors beyond a reasonable doubt. We
address this issue further in Part B of our opinion, infra, pursuant to our duty to
independently weigh the aggravating circumstances against the mitigating factors.
See R.C. 2929.05(A).
VI
{¶ 29} In his sixth proposition of law, appellant challenges the
constitutionality of Ohio's death-penalty statute on several grounds. These
arguments have all been previously addressed and rejected by this court. State v.
Poindexter (1988), 36 Ohio St.3d 1
,520 N.E.2d 568
; State v. Henderson (1988),39 Ohio St.3d 24
,528 N.E.2d 1237
; State v. Zuern (1987),32 Ohio St.3d 56
,512 N.E.2d 585
; State v. Jenkins (1984),15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
. Appellant's proposition of law is therefore overruled.
VII
{¶ 30} In his final proposition of law, appellant argues that the trial court
erred in sentencing him to death because his death sentence is disproportionately
severe because no fewer than ten other defendants in the same county were
convicted of aggravated murder during the commission of aggravated robbery, but
were not capitally prosecuted. This argument has been repeatedly rejected by this
court. State v. Sowell, supra, at 335
,530 N.E.2d at 1308
; State v.Jenkins, supra, at 209
, 15 OBR at 350,473 N.E.2d at 304
; State v.Steffen, supra, at 123-124
, 31 OBR at 283-284,509 N.E.2d at 394-395
. For the reasons set forth in those
decisions, we adhere to that position today.
B
{¶ 31} Having completed our examination of the issues raised upon appeal,
we must now turn to an independent review of the record as required by R.C.
2929.05, for the purpose of determining whether the mitigating factors present in
this case are outweighed by the aggravating circumstances appellant was found
guilty of committing.
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January Term, 1995
{¶ 32} Turning first to the aggravating circumstances, the evidence
established beyond a reasonable doubt that the murder of Daron was part of a course
of conduct involving the purposeful killing of five people (R.C. 2929.04[A][5]),
and that the murder occurred while appellant committed the offense of aggravated
robbery (R.C. 2929.04[A][7]).
{¶ 33} With respect to the nature and circumstances of the crime, the facts
demonstrate that during the five-month period between November 1990 and March
1991, appellant committed five brutal, calculated murders in four different states.
Appellant perpetrated each murder simply as a means to facilitate his trip across the
country. Daron, a devoted father and religious man, lost his life because he stopped
to offer appellant some assistance. After being driven to his chosen destination
more than twenty miles out of Daron's way, appellant fired two shots into Daron's
chest, stole his wallet and personal belongings, and ultimately disposed of the body
in a secluded area near the Ohio River. Appellant thereafter used the stolen money,
credit cards and vehicle to make his way to Oregon, where he continued his killing
spree.
{¶ 34} The defense presented the videotaped testimony of three witnesses
during the mitigation hearing concerning appellant's history, character, and
background. Louise M. Corcoran, a long-time family friend, testified to the
difficult childhood appellant experienced as a result of the repeated abuse and
rejection inflicted on him by his father and later by two stepfathers. Olivia Priest,
who was once appellant's stepmother and later his girlfriend, testified that she knew
appellant as a kind, caring and sometimes overly protective individual. She also
acknowledged alcohol and drug abuse by appellant on numerous occasions.
Finally, Margaret Berck of the Juneau office of the Alaska Public Defender Agency
testified that an Alaska judge had sentenced appellant to ninety-nine years'
confinement for the murder of Jefferson Diffee. She further stated that appellant
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would be required to serve a minimum of sixty-six years before being considered
for any type of early release.
{¶ 35} Mary Slayback, appellant's maternal aunt, testified during the
mitigation hearing concerning the abusive environment in which appellant was
raised. She also reported that appellant had lived with her in her home for a period
of time during his early twenties. Slayback described appellant as cooperative,
thoughtful and kind.
{¶ 36} The defense psychologist, Dr. Nancy Schmidtgoessling, testified
that appellant's performance on a number of psychological tests indicated an
average range of intelligence with no signs of organic impairment. She confirmed
that appellant spent his childhood in an environment of dysfunctional, abusive
relationships where he was frequently abused, humiliated, rejected and ultimately
abandoned by his father and stepfathers. As a result of his background, appellant
carries extreme feelings of worthlessness, distrust and suppressed rage. Dr.
Schmidtgoessling further determined that while appellant exhibits a mixed
personality disorder with narcissistic and antisocial tendencies, he does not suffer
from a "mental disease or defect," as that phrase is used in R.C. 2929.04(B)(3). The
effects of appellant's personality disorder have been further compounded by his
abuse of alcohol and other substances. Finally, Dr. Schmidtgoessling testified that
appellant's killing spree would likely have continued but for his arrest in Alaska.
{¶ 37} Appellant chose to make an unsworn statement to the court during
the mitigation hearing in which he described various childhood memories, both
positive and negative. He recounted instances of physical and emotional abuse that
he and his mother suffered because of his father and stepfathers. He spoke of his
abuse of alcohol and drugs, which began in high school, led to his discharge from
the military, and contributed to everything "falling apart" in November 1990 just
before he killed Donald Nutley. Appellant concluded his statement with
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January Term, 1995
expressions of sorrow for the person he has become and a request for a life sentence
so that he could have an opportunity to work with other children of abuse.
{¶ 38} The prosecution presented six witnesses during the mitigation phase,
each a law enforcement officer. Five of the six were police officers from the states
in which appellant had committed the murders. Those officers identified the
victims that had been found in their respective jurisdictions and related details of
the subsequent investigations which led them to appellant. The sixth witness was
Larry Ott, a special agent with the Federal Bureau of Investigation. Agent Ott and
two of the state police officers, Detective Thomas Nelson and Investigator Walter
Bowman, testified that appellant cooperated with the police by confessing to the
murders and providing information as to where the bodies and various evidentiary
items could be located.
{¶ 39} Upon review of all the evidence offered as mitigation, we find that
little or no weight should be given to any of the statutory mitigating factors. The
facts in this case fail to demonstrate that Daron in any way "induced or facilitated"
the offense within the meaning of R.C. 2929.04(B)(1). Nor do the facts indicate
that appellant acted under "duress, coercion, or strong provocation," as set forth in
R.C. 2929.04(B)(2). The defense psychologist's testimony indicates that while
appellant exhibits a personality disorder, he does not suffer from a mental disease
or defect contemplated by R.C. 2929.04(B)(3). Appellant's age of twenty-seven at
the time of the murder negates R.C. 2929.04(B)(4). Given appellant's previous
felony and misdemeanor convictions, we assign no weight to appellant's claim that
he lacks a significant criminal history under R.C. 2929.04(B)(5). No other
offenders were involved in the murder, thereby rendering R.C. 2929.04(B)(6)
inapplicable. Mitigating factors which fall under R.C. 2929.04(B)(7) include
appellant's abusive childhood, his cooperation with law enforcement officers, and
his alcohol and substance abuse, but each warrants little weight. We therefore find
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that the substantial aggravating circumstances established by competent evidence
outweigh the mitigating factors beyond a reasonable doubt.
C
{¶ 40} Finally, we are required, pursuant to R.C. 2929.05(A), to consider
whether the sentence imposed in this case was excessive or disproportionate. We
have upheld death penalties in other cases involving aggravated murders which
involved the purposeful killing of or attempt to kill two or more persons, e.g., State
v. Lorraine, supra,
66 Ohio St.3d 414
,613 N.E.2d 212
; State v. Frazier (1991),61 Ohio St.3d 247
,574 N.E.2d 483
; State v. Coleman (1989),45 Ohio St.3d 298
,544 N.E.2d 622
; State v.Sowell, supra,
39 Ohio St.3d 322
,530 N.E.2d 1294
; State v. Brown (1988),38 Ohio St.3d 305
,538 N.E.2d 523
; and cases where the aggravated murder was committed in the course of an aggravated robbery, e.g., State v. Green (1993),66 Ohio St.3d 141
,609 N.E.2d 1253
; State v. Cook (1992),65 Ohio St.3d 516
,605 N.E.2d 70
; State v.Brown, supra;
State v. Byrd (1987),32 Ohio St.3d 79
,512 N.E.2d 611
. Therefore, we find that the sentence of death in this case is neither
excessive nor disproportionate.
{¶ 41} Accordingly, we affirm appellant's convictions and death sentence.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
WRIGHT, J., concurs in judgment only.
__________________
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