Taft's statement on Benner clemency

Akron Beacon Journal

Tue, Feb. 07, 2006

On. Feb. 6, Gov. Bob Taft issued the following statement concerning the clemency of Glenn L. Benner II:

"On August 6, 1985, Mr. Benner kidnapped Cynthia Sedgwick from an outdoor music concert and raped and strangled her to death in a nearby wooded area.

On January 1, 1986, Mr. Benner kidnapped, raped, and strangled to death Trina Bowser, whose body was discovered in the trunk of her burning car. During the trial for the aggravated murders of Ms. Sedgwick and Ms. Bowser, Mr. Benner was also tried for crimes against two other women.

On September 26, 1985, Mr. Benner raped and strangled Nancy Hale in her home. Mr. Benner kidnapped Shelli Powell while she was jogging near her home on November 19, 1985 and attempted to rape and strangle her to death.

"Mr. Benner was convicted of numerous crimes, including the aggravated murders of Ms. Sedgwick and Ms. Bowser, and he was sentenced to death. "Mr. Benner did not request executive clemency, did not participate in the clemency process, and his attorney did not attend the clemency hearing. After a careful review of Mr. Benner's case, the Ohio Parole Board unanimously recommended (8-0) that clemency be denied.

"Following a thorough review of the judicial opinions, the report and recommendation of the Ohio Parole Board, recommendations from the Ohio Attorney General's Office and the Summit County Prosecutor's Office, and other relevant materials, I can find no compelling reason to grant clemency.

"For these reasons, I concur with the unanimous decision of the Parole Board and deny clemency for Glenn L. Benner, II. "May God bless the families and friends of Cynthia Sedgwick and Trina Bowser."

State v. Benner, Not Reported in N.E.2d, 1987 WL 15078 (Ohio 1987). (Direct Appeal)

Appeal from Judgment Entered in the Common Pleas Court, County of Summit, Case No. CR 86 1 0079.
Lynn Slaby, Prosecuting Attorney, Akron, for plaintiff.
Lawrence J. Whitney and Robert Baker, Akron, for defendant.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

CACIOPPO, Judge.

Defendant-appellant, Glenn L. Benner, appeals his numerous convictions, and the sentence imposing the penalty of death for the murders of Cynthia Sedgwick and Trina Bowser.

On August 6, 1985, Cynthia Sedgwick and three friends attended a rock concert at the Blossom Music Center. Sedgwick had had a few drinks and was "tipsy". She strayed from her friends several times, and at the end of the concert was nowhere to be found. After waiting for Cynthia quite a while at the conclusion of the concert, her friends left.

Attending the same concert that night was the defendant. He had come with a group of friends and co-workers of his employer, Michael's Construction Company. Benner's foreman testified that he had seen Benner with Sedgwick and had in fact seen him carry her into the woods adjacent to the parking lot. This was confirmed by another co-worker. Benner's party was unable to find him and left the music center without him.

On August 12, 1985, Cynthia's nude and partially decomposed body was discovered by a parking attendant in the woods adjacent to the parking lot.

On the evening of September 26, 1985, Nancy Hale was hanging pictures in her Goodyear Heights home. Without warning, she was grabbed from behind, slapped repeatedly, and thrown to the floor. Her clothes were stripped from her body.

She was then orally, anally and vaginally raped. After raping her, the assailant placed his hands around Nancy's throat and began choking her.

While this was happening, a second individual kept asking Nancy where her money was. The second subject pulled the rapist off of Nancy. Nancy reported the attack to the police.

On the evening of November 19, 1985, Shelli Powell, a 19-year old college student, was jogging along Howe Road in Tallmadge.

Abruptly, and without any warning, she was tackled and ended up lying face down on an embankment parallel to the sidewalk. The assailant was laying on her back, and repeatedly instructed her to "shut up".

He then began wrapping masking tape around her head, covering her eyes. Shelli's attacker moved her down the embankment and into a marshy area. He then removed her long-sleeved T-shirt and her brassiere.

At this point, Shelli asked him to remove the masking tape because it was hurting her eyes. He removed the tape. Shelli then caught a glance of her assailant in the moonlight. She was also able to touch his face.

The attacker fondled Shelli. His attention was then diverted by something. Shelli tried to escape but as soon as she rose to run, he pounced on her. The last thing Shelli remembered about the attack was her assailant's hands around her neck and her inability to breathe.

When Shelli regained consciousness she still had tremendous difficulty breathing. Something was bound tightly around her neck. She ran, naked, to a house across the street from the marshy area. The owner of the home let her in and called the police.

The officer who answered the call found Shelli with her knotted brassiere tied tightly around her neck. It was tied so tightly that he was afraid to cut it with a knife. With great difficulty, he untied the knot and removed it. Shelli was taken to the hospital and later released.

On the evening of January 1, 1986, Trina Bowser was visiting with her friend Cheryl Leek. Trina left Leek's house at approximately 9:45 p.m.

On January 2, 1986, at 12:15 a.m., an A.T. & T. employee coming home from work spotted Trina's car burning on Interstate 76. He flagged down a trucker, requesting help and a fire extinguisher.

The trucker stopped and both men put out the fire. There was a purse on the floor of the front passenger compartment. There was no one in the car.

The men found the number of the Bowser residence on a bank check. They then called the police and Trina's parents. Upon arrival, Trina's parents opened the trunk of the car. Inside, they found their daughter's lifeless body.

Her jeans were wrapped around her head and eyes, and her ankles were bound. Her knotted brassiere and her panties were bound tightly around her neck.

Shortly after the murder of Trina Bowser, Bob Tyson, a schoolmate and co-worker of Glenn Benner, called the Tallmadge police. Apparently motivated by a reward offered by Cynthia Sedgwick's parents, he told the police that he knew the identity of the perpetrator of the Sedgwick, Powell and Bowser crimes.

He identified Benner as the culprit, and, in a series of subsequent interviews with the police, told them of Benner's confession to him of the Sedgwick and Powell crimes. He also informed the police of his and Benner's involvement in the crimes against Nancy Hale.

Benner and Tyson were arrested on January 10, 1986. Benner confessed that day to the rape of Nancy Hale. On January 21, 1986, the grand jury returned a twenty-three count indictment against Benner.

Among other things, Benner was charged with the aggravated murders of Cynthia Sedgwick and Trina Bowser. Each count contained death penalty specifications.

Benner elected to proceed with a three-judge panel instead of a jury. The state presented the testimony of thirty witnesses and admitted over one hundred exhibits. Benner was represented by two appointed attorneys who conducted vigorous cross-examinations of the State's witnesses.

Benner was convicted of twenty counts, including three counts of aggravated murder--one count for the killing of Cynthia Sedgwick and two counts for the killing of Trina Bowser. A total of five aggravating circumstances were proven beyond a reasonable doubt.

Pursuant to R.C. 2929.03, the panel conducted a sentencing proceeding (penalty phase). Benner presented the testimony of a licensed psychologist, Dr. James W. Sidall, family members, and friends. Benner also testified, but was not cross-examined.

After examining all the evidence, the three judges unanimously concluded that the aggravating circumstances outweighed the mitigating factors and imposed the penalty of death on defendant. We affirm.

Assignments of error one and four assert the same argument and therefore will be addressed together.

ASSIGNMENTS OF ERROR

"I. In a capital case involving two deaths separated by four months time and two other series of acts involving rape also separated by substantial periods of time, it is error for the trial court not to sever the cases. "IV. In a capital murder prosecution, where a defendant is indicted for felony murder with specification of death and murder by prior calculation and design with specification of death, it is error for the trial court not to order the state to elect which count it will proceed with."

Prior to trial, Benner made two related motions concerning severance. T. Vol. III at 29-30. The first motion alleged improper joinder of offenses in the indictment in violation of Crim.R. 8(A).

The second motion requested separate trials on each set of counts relating to a particular victim, pursuant to Crim.R. 14. The motions were denied. They were renewed again at the close of the State's case, and at the close of all the evidence, and again, denied. We deal with the denial of each motion concurrently.

Crim.R. 8(A) recites: "(A) Joinder of Offenses. Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct."

Crim.R. 14 recites: "If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires.

In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial. "When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately, unless the court orders the defendants to be tried jointly, upon application by the prosecuting attorney or one or more of the defendants, and for good cause shown."

A defendant who asserts that joinder is improper has the burden of making an affirmative showing that his rights will be prejudiced thereby. State v. Roberts (1980), 62 Ohio St.2d 170, 175 (citations omitted).

Benner first contends that the crimes in question were separated by long intervals of time and were therefore improperly joined. This contention must be rejected. The Sedgwick and Bowser murders were committed five months apart.

The Hale rape occurred fifty-three days after the Sedgwick murder, and the attempted rape and attempted aggravated murder of Shelli Powell forty-three days after that. All crimes were committed reasonably close in time.

Benner next asserts that there was "no concrete similiarity" among the offenses. This argument ignores the facts. Two of the victims were murdered. The other two narrowly escaped being murdered. Three of the victims were raped and sodomized, and the other was a victim of an attempted rape.

The defendant's modus operandi was the same for each victim: rape or attempt to rape the woman and then strangle or attempt to strangle her.

Benner used three of the victims' knotted bras to choke them. In sum, the crimes were similar in character and also part of a common scheme or course of criminal behavior.

Benner also argues that Evid.R. 404(B) (which precludes the admission of prior bad acts of a defendant in order to prove that he acted in conformity therewith) barred joinder of the four sets of counts. We must disagree. Even if we were to accept that Evid.R. 404(B) applied to the issue of joinder, the exceptions contained in the rule would dispose of Benner's contention.

Benner asserts several bases on which the denial of separate trials prejudiced his rights. He argues that a "jury" may use evidence from one of the crimes charged to infer his guilt as to the other crimes charged, or that a jury may cumulate the evidence finding guilt, where if they considered the crimes separately they might not. We first note that Benner was tried by a panel of three seasoned trial judges--not by a jury.

Even if he had been tried by a jury, this argument would fail. Where the evidence relative to the various charges is uncomplicated and direct, the jury is believed capable of segregating the proof on each charge. Roberts, supra, at 175.

Here, two of the victims testified in detail about the crimes against them. Benner also confessed to the crimes against Nancy Hale. The State's witness, Robert Tyson, supplied the most incriminating evidence concerning the Sedgwick murder.

The evidence concerning the murder of Trina Bowser, while circumstantial, did not require any special training to understand. Thus, the evidence was direct and uncomplicated and capable of being segregated by a jury, and certainly by a panel of three experienced trial judges.

Lastly, Benner asserts two constitutional violations stemming from the trial judge's [FN1] refusal to allow separate trials. First, he argues that his Fifth Amendment right against self incrimination was violated. "In a separate trial, the appellant could choose in which case he wants to testify. In a joint trial he has no such choice. He either testifies regarding all or chooses not to testify. In this way, therefore, a joint trial violated his Fifth Amendment Rights." Appellant's brief at 15.

This very argument was rejected by our Supreme Court in State v. Torres (1981), 66 Ohio St.2d 340, where it was said that: " * * * The mere possibility that the defendant might have a better choice of trial tactics if the counts are separated, or the mere possibility that he might desire to testify on one count and not on the other, is insubstantial and speculative; it is not sufficient to show prejudice." Id. at 344 (citing Wangrow v. United States (C.A. 8, 1968), 399 F.2d 106, 112, cert. denied, 393 U.S. 933."

Benner's second constitutional argument in relation to joinder involves his right to a jury trial: "Finally, a joint trial (sic), forced this appellant to waive his right to jury and proceed with a three judge panel. The defendant was forced to do this because of all the reasons he has recited in this assignment. * * *." Appellant's brief at 15.

There are as many reasons for a criminal defendant to opt for a judge over a jury as there are criminal defense attorneys. Benner has not demonstrated that this choice of trial tactics was forced upon him, nor that it was not made for a purely strategic reason. Accordingly, assignments of error one and four are overruled.

ASSIGNMENT OF ERROR II

"In a capital murder case, a county coroner is not permitted to testify, in the absence of physical findings, that a witness's testimony is consistent with his opinion." The Summit County Coroner, Dr. William A. Cox, M.D., was unable, at the time of the autopsy, to make a determination as to the cause of death of Cynthia Sedgwick.

However, he was able to eliminate all possible causes of death-- shooting, stabbing, blow to the head, overdose of drugs or alcohol--except death by asphyxiation through strangulation. T. Vol. X at 952-53. Dr. Cox opined that Cynthia had met her end in a violent manner and more than likely by strangulation. T.Vol. X at 953.

Dr. Cox's opinion was based on two things. One was the elimination of other possible causes of death combined with inferences that could be drawn from the severe state of decomposition evident in certain portions of the victim's body. The head, neck, face and vaginal areas of the body were permeated with maggot infestation.

Dr. Cox testified that maggots gain an easier foothold, and thus flourish more easily, in body areas that have sustained severe tissue damage. The inference thus being that the victim was brutally beaten and strangled to death.

The second basis of Dr. Cox's opinion was information gained subsequent to the autopsy. The transcript of proceedings leaves little doubt that this subsequent information was the testimony of Robert Tyson, the State's witness. T.Vol. X at 951.

Before Benner's arrest, Tyson had met with Dr. Cox. Tyson then told Cox that Benner had confessed to him that he (Benner) had strangled, raped and forced his hand up Sedgwick's vagina. Dr. Cox testified that this information confirmed his own opinion based on the reasonable inference noted earlier.

Benner now contends that Dr. Cox's testimony was inadmissible expert testimony, in that it embraced an ultimate issue of fact--the credibility of Robert Tyson's testimony. We cannot accept Benner's argument. To begin with, Dr. Cox did not say that Tyson's testimony regarding the cause of death was credible, but merely that it was consistent with his own conclusions.

Dr. Cox's testimony corroborated Tyson's revelations, but did not attest to the latter's veracity as a witness. Further, and more importantly, Dr. Cox did not buttress the remainder of Tyson's testimony, including the identity of Benner as the perpetrator of the crimes.

Dr. Cox's testimony was admissible under Evid.R. 703 which recites: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." Tyson had testified prior to Dr. Cox taking the stand. Tyson had testified as to what Benner had told him concerning the Sedgwick murder.

Dr. Cox was permitted, under the rules of evidence, to render an opinion which embraced an ultimate issue of fact--the cause of Cynthia Sedgwick's death. Evid.R. 704. Further, he could base that opinion on Tyson's testimony which was already in evidence. For all the foregoing reasons, assignment of error two is overruled.

ASSIGNMENT OF ERROR III

"In a capital murder case, after a defendant has waived his rights to trial by jury and elected a three judge panel, he still has the right to have a motion in limine heard by the presiding judge outside of the presence of the panel."

Benner waived trial by jury, and, instead, elected to be tried by a panel of three judges, pursuant to R.C. 2945.06, which recites in pertinent part: "In any case in which a defendant waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the Revised Code, any judge of the court in which the cause is pending shall proceed to hear, try, and determine the cause in accordance with the rules and in like manner as if the cause were being tried before a jury.

If the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges, consisting of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge or chief justice of that court, and in case there is neither a presiding judge nor a chief justice, by the chief justice of the supreme court.

The judges or a majority of them may decide all questions of fact and law arising upon the trial; however the accused shall not be found guilty or not guilty of any offense unless the judges unanimously find the accused guilty or not guilty.

If the accused pleads guilty of aggravated murder, a court composed of three judges shall examine the witnesses, determine whether the accused is guilty of aggravated murder or any other offense, and pronounce sentence accordingly. * * *." (emphasis added).

There is no case authority discussing the relative powers of the three judges composing the panel mandated by R.C. 2945.06. Hence, an examination of the literal language of the statute is necessary. If it was the intent of the drafters of this statute to bestow upon one of the judges of the panel absolute power over trial rulings, they would have expressly said so. However, just the opposite intention is suggested by the emphasized language of the statute noted above. " * * * The judges or a majority of them may decide all questions of fact and law arising upon trial."

The language used in the statute indicates that the panel be composed of three co-equals. It does not preclude delegation of the duty of ruling on procedural and evidentiary matters to one judge. However, if there is disagreement among any two judges on a procedural or evidentiary ruling, the statute provides a resolution--the majority of the panel can decide the question.

The majority of the panel overruled Benner's motion in limine. T.Vol. X at 922. This disposition of his motion was in complete accord with the statutory language. Accordingly, assignment of error three is overruled.

ASSIGNMENT OF ERROR V

"The trial court erred in allowing the State's witness, Shelli Powell, to identify appellant as her assailant at trial because the identification procedure utilized was impermissibly suggestive." In order to determine whether the admission of testimony concerning a criminal identification procedure violates the Due Process Clause of the Fourteenth Amendment of the Federal Constitution, a two-prong test is employed.

A court must ask: 1) Whether the police used an impermissively suggestive procedure in obtaining the out-of-court identification, and, if so; 2) Whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See Manson v. Brathwaite (1977), 432 U.S. 98, 106; Neil v. Biggers (1972), 409 U.S. 188; Simmons v. United States (1958), 390 U.S. 377.

As to the first prong of the test, we do not find the identification procedure used by the Tallmadge police to have been impermissibly suggestive. Shelli was victimized on November 19, 1985. She viewed the photographic array in her home on January 11, 1986. The array consisted of eight photographs. State's Exhs. 1A-1G.

These photographs portrayed five individuals. T.Vol. IV at 63. There was a frontal and left profile view of Benner, Tyson, and another individual. State's Exhs. 1A, 1B, 1C, 1D and 1F. The remaining two photographs contained frontal views of two other persons. State's Exh. 1E and 1G. All the photographs were of while males.

All appeared to be in their twenties. Of the five, only one had no facial hair. [FN2] In sum, there was nothing about the composition of the array which distinguished Benner's photographs.

Shelli identified Benner as her attacker. T.Vol. IV at 16. Upon identifying Benner, Shelli became "visibly shaken" and "nauseated." T.Vol. IV at 49. When asked to rate the certainty of her identification on a one to ten scale, Shelli stated that it would be a seven and a half. Id. She then asked the detectives to provide her with a right profile photograph of Benner.

The detectives went back to the Summit County jail and took a right profile photograph of Benner. They returned to Shelli's home.

Approximately one and a half hours had elapsed. They substituted the right profile photograph (State's Exh. 1H) for the left profile of Benner and asked Shelli to re-examine the array. She did, and once again identified Benner as her assailant.

After thoroughly examining the photographic identification procedure used by the Tallmadge police, we find that there was no attempt to coerce, convey, or in any way urge Shelli Powell to identify Benner's photograph.

However, even if it could be said that this procedure was suggestive, Benner would fail to satisfy the second prong of the test noted earlier--proof of a substantial likelihood of irreparable misidentification. Manson, supra.

This is because Shelli's identification of Benner contains sufficient indicia of reliability which outweigh any risk of misidentification. Biggers, supra. We shall review these indicators of reliability.

1. The opportunity to view her assailant. Shelli testified that although the attack occurred in the evening, there was light from the moon and from "the other side of the tracks." T.Vol. IV at 10. She was able to view Benner's profile in this light for five seconds.

2. The witness' degree of attention. Shelli remained unusually calm during the encounter. T. Vol. IV at 28. She talked to her attacker, telling him that the masking tape he wrapped over her eyes was painful because of her contact lenses. She did not wear contacts. She only told him that so she could get a better look at him. She kept asking him who he was, and what he was doing. In sum, her attention was focused on him. She also paid scrupulous attention to details. She observed that her assailant had mediterranean features, and that he smelled of smoke. T.Vol. IV at 10.

3. Accuracy of witness' description. Shelli gave police a description of Benner at the hospital shortly after the attack. Her description came surprisingly close to his actual height, weight, build and other physical features. T.Vol. IV at 21.

4. The witness' level of certainty. Shelli rated her certainty as a seven and a half on a one to ten scale.

5. The time between the crime and the confrontation with the accused. Shelli viewed the array sixty-three days after the commission of the crimes. While this is a long period, it is not so long as to undermine the other four indicia of reliability already established.

It is clear that any possibility of misidentification in this case has been eliminated by the trustworthiness factors noted above. Accordingly, we hold that the identification of Benner by Shelli Powell complied with all due process requirements. Manson, supra. Assignment of error five is overruled.

ASSIGNMENT OF ERROR VI

"The trial court erred in admitting into evidence statements of appellant which were elicited from him contrary to law." Benner confessed to the rape of Nancy Hale as well as to the burglary of her home. This taped confession was made on January 10, 1986, the day of his arrest. The confession session was cut short by Lieutenant Stemple of the Akron Police Department.

The lieutenant had received a phone call from Jim Burdon, an attorney retained by Benner's father. Burdon requested that the officers cease their questioning of defendant. State's Exh. No. 3. The day before his arrest (January 9, 1986), Benner was one of several of Trina Bowser's neighbors questioned by Tallmadge police in a routine canvass.

Detective Osborne then asked Benner of his whereabouts on the day of the Bowser homicide. Benner told him that he had been at his newly purchased home in Canal Fulton until 7:00 p.m., after which he returned to his sister's residence on Broadview Avenue in Springfield Township. [FN3] T.Vol. IV at 110. He told Osborne that he had spent the night at his sister's house.

Detective Monchilov also questioned Benner at this time. He asked Benner if he had attended any concerts at Blossom Music Center in 1985. Benner replied that he had not gone to Blossom in 1985. The Tallmadge detectives were also present at the Akron police station when Benner was interrogated about the Hale case.

Both detectives were made aware of Attorney Burdon's request that the interrogation cease. However, they did not feel bound by that request because they were investigating a different case. T.Vol. IV at 138. After re-reading him the Miranda warnings, they posed the same questions to Benner that they had the day before.

Benner slightly changed his answers to the re-posed questions. He now said that he left his Canal Fulton residence at 8:00 or 8:30 p.m., and that he went out once during the evening to a convenience store.

On January 12, 1986, the Tallmadge detectives transported Benner to Tallmadge for purposes of booking him for the crimes against Shelli Powell.

When they arrived at the station, Benner was read Miranda warnings--and signed a Miranda card. State's Exh. 4. He was then again asked about his attendance at Blossom during 1985, and he gave the same answer. Defense counsel attempted to have Benner's inculpatory and exculpatory statements to police suppressed prior to trial.

The motion was denied. They argue that Benner's confession to the Akron police and his exculpatory statements to the Tallmadge detectives were obtained in violation of his Fifth, Sixth and Fourteenth Amendment Rights. We cannot agree. Benner's confession to the Hale crimes was made intelligently and voluntarily.

The interrogating officers read defendant his rights and questioned him concerning his mental health, physical well being, degree of schooling and ability to understand the English language, all before commencing formal questioning.

Benner was not tired, under the influence of alcohol or drugs, or under any type of duress. Therefore, his confession was properly admitted. State v. King (Sept. 18, 1985), Summit App. No. 12113, unreported.

Up until the time of his actual arrest, the questioning of Benner was purely investigatory. The questions asked of Benner during the neighborhood canvass were brief and made in the open.

His person was not restrained. This type of non-station-house, temporary questioning does not amount to custodial interrogation sufficient to require Miranda warnings. Berkemer v. McCarty (1984), 468 U.S. 420.

Thus, the statements were properly admitted over defendant's objections. As to the questioning of Benner post-dating Attorney Burdon's request that all questioning cease, we have the benefit of a recent United States Supreme Court case.

In Moran v. Burbine (1986), 475 U.S. 412, 89 L.Ed.2d 410, the court held that inculpatory statements obtained after defendant's attorney requested that interrogation cease, were still admissible and did not violate either Miranda v. Arizona (1966), 384 U.S. 436, or defendant's right to counsel.

Concerning Miranda, the court found that regardless of the failure of the police to inform defendant of his attorney's retention, or the request that questioning cease, a validly obtained waiver of his rights could not be invalidated. If the police deception in Moran was not enough to invalidate a waiver and the subsequent statements elicited by a defendant, then the actions of the police here is certainly not.

Here, the defendant knew of his attorney's request and still proceeded to answer the questions. The conduct of the Tallmadge detectives, while not admirable, does not justify the suppression of the statements.

As to Sixth Amendment rights, the court in Moran emphasized that the right to counsel does not attach until the initiation of adversary judicial proceedings--indictment and arraignment. 89 L.Ed.2d at 427; See, also, Maine v. Moulton (1985), 474 U.S. 159, 88 L.Ed.2d 481.

All questioning of Benner took place prior to either his arraignment or indictment. This, combined with the fact that substantially identical statements were made to police prior to his arrest, lead us to conclude that the statements were admissible. Accordingly, assignment of error six is overruled.

ASSIGNMENT OF ERROR VII

"The trial court erred in denying appellant's motion for a change of venue." Pursuant to Crim.R. 18(B), R.C. 2901.12(I) (current version at R.C. 2901.12(J)), and R.C. 2931.29, Benner moved for a change of venue due to allegedly adverse and copious pre-trial publicity. Judge Bayer held his ruling on Benner's motion in abeyance pending an attempt to impanel an impartial jury.

Judge Bayer was undoubtedly relying on the rule that " * * * a careful and searching voir dire provides the best test of whether prejudicial pre-trial publicity has prevented obtaining a fair and impartial jury from the locality." State v. Bayless (1976), 48 Ohio St.2d 73, 98. This rule has been held applicable to death penalty cases tried under the new statute. State v. Maurer (1984), 15 Ohio St.3d 239, 249-252.

The defendant herein elected to be tried to a three-judge panel. Nevertheless, he argues that the local pre-trial publicity concerning his case required a change of venue. We disagree. Whether Benner waived his request for a venue change by the election of a three-judge panel not withstanding, there was no attempt to seat an impartial jury. Therefore, his right to an impartial jury was not denied. Accordingly, we overrule assignment of error seven.

ASSIGNMENT OF ERROR VIII

"The trial court erred in failing to dismiss the multiple death specifications contained in the indictment for reason that the specification contained in Section 21929.04(A)(5) (sic) is unconstitutionally vague."

A statutory aggravating circumstance providing a basis for the imposition of a penalty of death must be clear and understandable or it will be held to violate the Eighth and Fourteenth Amendments to the Federal Constitution. Godfrey v. Georgia (1980), 446 U.S. 420.

In Godfrey, the court discussed this requirement and the reasons behind it: " * * *. "A capital sentencing scheme must, in short, provide a 'meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.' * * *.

"This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates 'standardless [sentencing] discretion.' * * * It must channel the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.'

As was made clear in Gregg, a death penalty 'system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.' * * *.

"In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the defense was 'outrageously and wantonly vile, horrible and inhuman.' There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.

A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.' * * *." Id. at 427- 428 (citations omitted).

Benner was convicted of three counts of aggravated murder with specifications. Two of the counts contained a specification that the murder was committed during an attempted or actual rape and/or kidnapping, R.C. 2929.04(A)(7), all three also contained a specification that: "Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender." R.C. 2929.04(A)(5) (emphasis added).

Benner argues that this statutory aggravating circumstance is ambiguous when viewed in the light of the Committee Comment to the section. He argues that the General Assembly intended that subsection (A)(5) only apply to "mass murder" situations--analogous to mass accident cases where many people are injured at one time. Benner's reliance on the Committee Comment is, however, misplaced.

The Comment recites in pertinent part that: "This section provides that the death penalty for aggravated murder is precluded unless one of seven listed aggravating circumstances is specified in the indictment and proved beyond a reasonable doubt.

The seven aggravating circumstances deal with: (1) assassination of the President, Vice President, Governor, Lieutenant Governor, or a person who has been elected to or is a candidate for any such office; (2) murder for hire; (3) murder to escape accountability for another crime; (4) murder by a prisoner; (5) repeat murder or mass murder; (6) killing a law enforcement officer; and (7) felony murder." (emphasis added).

The emphasized language reveals that the legislature intended subsection (A)(5) to embrace two distinct means by which multiple murders are accomplished. One method does involve the "mass murder" scenario, however, the other contemplates repeat murder, such as in the manner of a serial killer.

The Committee Comment does not, therefore, create an ambiguity. The language of the statute provides a clear and specific description of the behavior constituting the aggravating circumstance. Godfrey, supra.

Benner's repeated murders and attempted murders, all committed in close proximity to one another, fit this description exactly. We find no constitutional flaws in the subsection's composition or application. Accordingly, assignment of error eight is overruled.

ASSIGNMENT OF ERROR IX

"The trial court erred in admitting State's Exhibit 44, 56 thru (sic) 64, 81, 88 thru (sic) 110 for reason that said exhibits were seized contrary to law."

After Benner's arrest, his partial confession, his exculpatory statements, and the several police interviews with Robert Tyson, Tallmadge detectives applied for two search warrants for Benner's Lawrence and Springfield Township residences. The warrants were authorized by judges of the Summit and Stark County Courts of Common Pleas.

Benner attacked both the validity of the warrants themselves, and the admission of certain items seized pursuant to their terms. He now argues that the trial court erred in rejecting his arguments for suppressing certain evidence.

Benner first contends that the affidavits submitted with the applications for the warrants were insufficient to justify the warrants' issuance. In reviewing the legal sufficiency of a challenged affidavit for a search warrant, an appellate court's task is to ensure, through a concientious review of the affidavit, that the issuing magistrate had a substantial basis for concluding that probable cause existed. State v. Bean (1983), 13 Ohio App.3d 69.

We have reviewed the finely detailed, two-page affidavit of Detective Osborne. We find that it provided the issuing judges with a firm basis for concluding that probable cause existed. Crim.R. 41(C). Hence, this branch of Benner's assignment of error is overruled.

Benner's second contention is that the searches made pursuant to these warrants became exploratory and exceeded the scope of the warrants' written terms. Stanford v. Texas (1965), 379 U.S. 476. Both warrants meticulously described the residence to be searched. State's Exh. Nos. 5 & 6. One also authorized the search of Benner's vehicle (company truck) located at the premises.

Each warrant authorized the search and seizure of the following items: 1) Woman's pierced earrings 2) Fibers and hair and other trace evidence for comparison 3) Cement/mud type substance for comparison 4) Lavender or purple erasure type substance for comparison 5) White decorative rope for comparison 6) Blue sweatshirt 7) Ladies grey Nelsonic digital watch

Benner complains that certain items seized do not fit under any of the descriptions noted. We disagree. The women's undergarments, men's jackets, and the vacuum cleaner bag all were potential sources of hair, fibers and other trace evidence.

The remaining items seized were discovered inadvertently, were of an incriminating nature, and were in open view, and, thus, meet the plain view exception to the warrant requirement. Coolidge v. New Hampshire (1971), 403 U.S. 443. Accordingly, assignment of error nine is overruled.

ASSIGNMENT OF ERROR X

"The death penalty as authorized by Ohio Revised Code Section 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05 is unconstitutional, both on its face and as it relates to this defendant in that it violates the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, Section Two, Nine, Ten and Sixteen of the Ohio Constitution.

"A. Section 2929.03 and 2929.04 of the Ohio Revised Code violate United States Constitution, Eighth Amendment and Ohio Constitution, Article One, Section Nine, prohibition against that infliction of cruel and unusual punishment.

"B. Sections 2929.01, 2929.03 and 2929.05 of the Ohio Revised Code fail to assure adequate appellate analysis of excessiveness and disproportionality of death sentences, and thus violate the Eighth and Fourteenth Amendments to the United States Constitution and Article One, Sections Nine and Sixteen of the Ohio Constitution.

"C. Section 2929.02. 2929.022, 2929.03, 2929.04 and 2929.05 of the Ohio Revised Code deprive the capitally charged defendant of due process of law under the Fourteenth Amendment and Article One, Section Nine of the Ohio Constitution. These provisions permit imposition of the death penalty on a less than adequate showing of guilt and the appropriateness of the death penalty.

"D. Section 2903.01, 2929.022, 2929.03, 2929.04, and 2929.05 of the Ohio Revised Code violate the Eighth Amendment, prohibition against cruel and unusual punishment and the Fourteenth Amendment due process and equal protection clauses of the United States Constitution and Article One, Sections Nine and Sixteen of the Ohio Constitution, by requiring proof of aggravating circumstances in the guilt stage of the death penalty deliberation.

"E. Section 2929.03, 2929.04, 2929.05 of the Ohio Revised Code Violates the Eights (sic) and Fourteenth Amendments to the United States Constitution and Article One, Sections Nine and Sixteen of the Ohio Constitution in allowing the imposition of the death penalty in the presence of mitigating circumstances.

"F. Section 2929.03, 2929.04 and 2929.05 of the Ohio Revised Code violates the Eighth and Fourteenth Amendments of the United States Constitution and Article One, Sections Nine and Sixteen of the Ohio Constitution by failing to provide the sentencing authority with an option to choosing a life sentence, when there are aggravating circumstances and no mitigating circumstances.

"G. The death penalty authorized by Section 2929.02, 2929.022, 2929.03, 2929.04 of the Ohio Revised Code violates the cruel and unusual punishment provisions and due process clauses of the State and Federal Constitutions for reason that the aggravating circumstance, as contained in the specifications to Count One, Count Two and Counts Seventeen and Eighteen of the Indictment, are overbroad and vague, and fail to reasonable (sic) justify the imposition of the death penalty in violation of the Fourteenth Amendment to the United States Constitution; and also violates the double jeopardy clause of the Fifth Amendment to the United States Constitution.

"H. The Eighth and Fourteenth Amendments to the United States Constitution and Article One, Sections Nine and Sixteen of the Ohio Constitution are violated by the failure of Sections 2903.01(B) and 2929.04(A)(7) of the Ohio Revised Code to clearly require the conscious desire to kill or premeditation and deliberation as a culpable mental state.

"I. Sections 2929.03 and 2929.04 of the Ohio Revised Code violate the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution and Article One, Sections Two and Sixteen of the Ohio Constitution; and cruel and unusual punishment clauses of the Eighth Amendment and Article One, Section Nine of the Ohio Constitution.

"J. The death penalty is arbitrary and discriminatorily inflicted, constituting cruel and unusual punishment and a denial of equal protection under the Eight (sic) and Fourteenth Amendments to the United States Constitution and Article One, Sections Two and Nine of the Ohio Constitution."

Benner concedes that the challenges to Ohio's death penalty statutes made under this assignment of error have been passed upon and rejected by the Ohio Supreme Court in prior cases. See State v. Jenkins (1984), 15 Ohio St.3d 164; State v. Buell (1986), 22 Ohio St.3d 124, cert. denied, 93 L.Ed.2d 165, reh. denied, 93 L.Ed.2d 607. He asserts them on appeal for the limited purpose of preserving the record. Accordingly, assignment of error ten is overruled.

ASSIGNMENT OR ERROR XI

"The imposition of the death penalty in the instant case is inappropriate because the three judge panel took into consideration factors other than those set forth in O.R.C. 2929.04." Benner argues that the three-judge panel improperly considered factors outside the scope of the aggravating circumstances alleged and proven in his case. Specifically, he relies on the following passage taken from the sentencing determination of the panel: " * * *. "The Court did, however, consider as relevant to the aggravating circumstances the testimony and evidence relating to the brutal and depraved manner in which the Defendant strangled or attempted to strangle his victims, the frequency of his attacks, his seeming indifference and lack of remorse for the trail of death and broken lives he left behind, simply to satisfy his sexual gratification and to avoid apprehension." " * * *." (Separate opinion of panel (R.C. 2929.03(F)) at 6).

The identical argument was made in the recent case of State v. Steffen (1987), 31 Ohio St.3d 111, 115-117. There, the trial court had remarked in open court, during the sentencing phase, that: " ' * * * [Appellant's] battered childhood was terribly unfortunate but has not, from the overwhelming weight of the professional evidence, caused him to be psychotic. It has perhaps been responsible, to some degree, in causing him to be a person with superficial and shallow restraints. More significantly, it has developed a person with dangerous propensities likely to explode at any time.

The * * * [appellant] has been described as a human time bomb waiting to explode. He did just that in this case and the results were devastating. There is no evidence to suggest that the same type of delayed explosive reaction could not occur again unless action is now taken to permanently prevent it. " 'This is what the Legislature had in mind when it passed the new death penalty law. The Legislature was reacting to the demands of the public for retribution and this is an appropriate case to provide such retribution.' " Id. at 116, n. 6.

That court's written sentencing determination recited in pertinent part that: " ' * * * The true circumstances of the offense can be gleaned from the testimony of the State's witnesses who described the scene, the victim's condition, the condition and location of her torn clothes and the presence of semen both in the victim's vagina and in her panties and the presence of spermatozoa. There is ample evidence to indicate the very sordid nature of the offense and its specific consequences. "It should be noted, from the * * * [appellant's] appearance in the courtroom that he was physically over-developed. He had a massively well developed chest and upper arms. It is evident that he either exercised regularly or worked out on muscle developing equipment. He looked every bit the part of an extremely strong person even though he wore glasses, suggesting that he had very poor eyesight and spoke very softly. The last moments in the life of Karen Range, in that small bathroom, and in very close proximity to the * * * [appellant], it must logically be inferred were filled with horror and pain.' " Id. at 116-117, n. 7. " * * *."

In rejecting Steffen's argument that the court improperly considered the nature and circumstances of the offense, the Supreme Court emphasized the language of 2929.04(B), which requires review of these factors.

We are compelled to agree, and find nothing improper about the three-judge panel's description of Benner's crimes in their sentencing determination. Accordingly, assignment of error ten is overruled and the conviction and sentence of the court below is affirmed.

The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this court, directing the County of Summit Common Pleas Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions.

QUILLIN, P.J., and MAHONEY, J., concur.

FN1. Before Benner elected to be tried to a three-judge panel the case had been assigned to Judge Bayer, who heard all pre-trial motions.

FN2. Shelli had earlier described her attacker as having some facial hair. T. Vol. IV at 13.

FN3. Trina Bowser lived on Broadview Avenue with her parents.