Supreme Court of Ohio
State v. Dunlap (1995), Ohio St.3d .
No. 94-1777
The State of Ohio, Appellee, v. Dunlap, Appellant.
Submitted June 6, 1995
Decided August 23, 1995
Appeal from the Court of Appeals for Hamilton County,
No. C-930121.
On October 6, 1991, at a Cincinnati park, defendant-appellant
Timothy Dunlap used a crossbow to shoot two arrows into his girlfriend,
Belinda Bolanos. After Dunlap left Bolanos to die, he drove her Chevette
across the country until he arrived on October 16 at Soda Springs, Idaho.
There, Dunlap used a sawed-off shotgun to rob a bank and kill bank
teller Tonya Crane. Idaho police captured him that afternoon. Dunlap now
appeals his Ohio conviction and death sentence for the aggravated murder
and robbery of Bolanos.
In June 1991, Dunlap traveled from Indiana to
Cincinnati, where he found casual labor jobs and lived on the streets
and in inexpensive motels. That summer, he met Bolanos in Cincinnati,
where he worked as a temporary worker. They began dating, traveled to
Florida, and in mid-September started living together in her early 1980s
Chevette hatchback. In late September, Dunlap bought a crossbow and
thought about killing Bolanos.
On Sunday morning, October 6, 1991, Dunlap asked
Bolanos to go with him for a picnic near the Ohio River. When they
arrived at a river park, Dunlap told her he had a surprise for her.
Dunlap described later how he "blind folded her, walked her into the
woods, had the cross bow with me, shot her once in the neck, she fell to
the ground, then I shot her once in the head." He shot her in the neck
so "she wouldn't be able to scream." In the head, he chose "the closest
place to the temple, softest part of the skull." Dunlap killed her to "get
her car, credit card and checks." When he left her, he drove her
Chevette to Louisville, Kentucky.
In Louisville, Dunlap purchased a 12-gauge shotgun
and then drove for several days through Kentucky, Missouri, Arkansas,
Oklahoma, Kansas, Colorado, Utah, Wyoming, and Idaho until he arrived at
Soda Springs, Idaho. Along the way, he sawed several inches off the
shotgun barrel. During his journey, he assumed the fictitious name of
Steve Bolanos and used Belinda's credit card to pay for gas, meals and
lodging.
On October 12, while Dunlap was driving across the
country, Bolanos's body was discovered in the woods. The coroner found
that Bolanos died as a result of wounds caused by two arrows: one arrow
went through her throat almost five inches, and the other arrow, shot
into the right side of her head, pierced her brain for six inches.
Despite these injuries, Bolanos probably lived for fifteen to thirty
minutes after she was shot.
Around 9:30 a.m., October 16, Dunlap walked into a
Soda Springs, Idaho bank with the sawed-off shotgun and asked teller
Crane for all of her money. According to one teller, Dunlap shot Crane
"as quickly as he grabbed the money." Dunlap was described as "very cool,
very calm, and very collected," with "the coldest eyes." Another teller
confirmed that Crane "did everything" Dunlap asked, "and he shot her for
no reason."
Crane died as a result of the shotgun blast to her
chest. A bystander wrote down a description of Dunlap and the car
including the license number.
Later that afternoon, Dunlap abandoned the Chevette
after a chase and escaped into nearby woods, but was later apprehended.
After being advised of his Miranda rights, Dunlap admitted he had robbed
the Soda Springs bank and shot the teller.
During interviews on October 17 and 19, Dunlap again
admitted to police that he robbed the bank and shot Crane, because "she
set the alarm to the police and she didn't give me all the money."
Dunlap asserted, however, he "never intended to kill her." Because he
had loaded the shotgun with bird shot, he thought she would just wind up
in the hospital.
In the same interviews, Dunlap admitted he shot
Bolanos with the crossbow in order to get her car, check book, and
credit cards. Dunlap recognized "it didn't have to be done, it
is just I was broke, I had no money. I was hardly working." He felt a "little
bit of sadness" because "I liked her a little bit." In the October 19
interview, Dunlap also claimed that an ex-boyfriend of Bolanos gave him
money to kill her, but no evidence at trial supported that assertion.
On October 16, Dunlap consented to a search of the
car. On October 18, police searched the Chevette and found the crossbow,
the shotgun, numerous credit card receipts signed by Dunlap as "Steve
Bolanos," Belinda's personal belongings, and a large quantity of loose
cash.
The grand jury indicted Dunlap for two aggravated
murder counts relating to Bolanos, murder done with prior calculation
and design (count I) and felony murder (count II), as well as aggravated
robbery (count III). Each murder count included two death penalty
specifications alleging murder as a "course of conduct" and murder
during an aggravated robbery in violation of R.C. 2929.04(A)(5) and (7).
At trial, Dunlap asked his attorneys not to challenge
the prosecution's guilt-phase evidence or to cross-examine prosecution
witnesses. Defense did move to suppress Dunlap's pretrial statements to
police and also contested Dunlap's guilt as to the "course of conduct"
death penalty specification. The jury convicted Dunlap as charged.
Evidence at Sentencing
Dunlap's mother, Patricia Dunlap, testified that
Dunlap was born in August 1968, and his stepfather adopted him in 1969.
As a youth, Dunlap played sports, served as an altar boy, a school
crossing guard, and a cub scout, and was in the county sheriff's cadet
program. In high school, he was in several plays and played the school
mascot. In two years of college, he studied business law, communications,
and drama and had the lead in a college play. When he was twenty-one, he
got married and had a son, but the marriage lasted less than a year.
Until his divorce, he was never in trouble with the law, and he even ran
for political office twice.
John Dunlap, his stepfather, testified he was a good
son, who was introverted in grade school, but he blossomed in high
school. At eighteen, he was rebellious. Dunlap's grandmother spoke
highly of him. His sister testified that he had few friends and started
rebelling against his parents in high school. In college, Dunlap did
well and loved acting. After his marriage, his wife had a child, and he
was "a very loving father." He went "over the edge" when his wife
divorced him less than a year later.
His mother thought Dunlap "always had mental problems."
When he was twelve, his mother took him for counseling and therapy, but
that stopped when he told her, "I just can't go anymore." He reportedly
had comprehension problems and a learning disability. In January 1991,
police arrested Dunlap for harassing his ex-wife. After some time in
jail, he was admitted at a mental health facility. That facility's
records report that Dunlap was "manipulative" and prone to violence, and
he had a history of depression, temper outbursts, and possible
hallucinations. Those records reflect a diagnosis of disassociative
disorder, intermittent explosive disorder, depressive disorder, and
personality disorder with a possible partial complex seizure disorder.
When released from that facility, Dunlap went back to
jail and then to Madison State Hospital in Indiana. In June 1991, he
escaped from Madison and went to Cincinnati. His family did not see him
again until after his October 1991 arrest in Idaho.
When his family first talked and met with Dunlap
after his October arrest, he seemed like a different person. Dunlap's
voice showed "no feeling, no warmth, no emotion." Dunlap had an
unfamiliar "hideous laugh" and "cold, glaring stare." Yet his mother,
sister, and grandmother all agreed that Dunlap, after time, showed
remorse in jail. Dunlap told his grandmother he was sorry for what he
had done and had asked God to forgive him.
In an unsworn statement, Dunlap said "I am but a man
who thought he was pushed to the edge of desperation, living in dire
straights [sic]." Now, he felt "sorry for what [he's] done." As to the
bank robbery, he "did not intend, calculate or design the death of the
teller." When he thought she pushed the alarm, his "anger and
frustration turned to rage," and he shot her. The "same pent up anger
and rage led to [his] crime here in Ohio." On the streets of Cincinnati,
he lived "on the razor's edge of sanity struggling every day to survive."
He had nowhere to stay but in Bolanos's car. He had "very little money [and]
wore the same clothes.*** The fear, anxiety, frustration and desperation
ate at [him] more and more each day." He challenged the jury that "If
any one of you can *** place yourself in my situation and state of mind,
[and say] you would have done different, then you're simply dealing in
lunacy and can't possibly say one way or the other."
He told the jury, "I don't want you to think I'm
trying to excuse what I've done, I am not, nor am I trying to lessen the
fact that two women are dead. I'm sorry for what I've done." Further, he
said, "I care about my family, my friends, and my son, and the people I
hurt, and ask them to forgive me." Now, he hopes for "a chance to
rehabilitate" himself in prison. "And though I took two lives, I do not
deserve to die."
In rebuttal, Dr. Michael Estess, a board-certified
psychiatrist, testified via videotape that he had interviewed Dunlap and
reviewed various records. In his view, Dunlap had "personality disorders,"
including "passive-aggressive," "histrionic" and "explosive" disorder.
These disorders did not constitute a mental disease or defect, and
Dunlap understood right from wrong and could conform his actions to law.
Estess agreed that Dunlap might possibly have some level organic brain
dysfunction, but even if that were true, it had no particular
significance or relevance. Estess disbelieved Dunlap's claims of
occasional blackouts or hallucinations; instead he thought Dunlap was
prone to "theater," "embellishment," and even "malingering."32
Also, in rebuttal, a reporter testified that he had
interviewed a Tim Dunlap by phone after his Ohio arraignment. The
reporter satisfied himself the caller was Dunlap because of
the caller's personal knowledge. When asked about remorse, Dunlap
replied, "Yeah, I've got to regret I didn't get away." In surrebuttal,
Dunlap's mother testified that he was still agitated, upset, and
confused when he first returned to Ohio, but he later changed and became
truly sorry. More recently, Dunlap had told another reporter that he was
sorry and "wished things could have turned out differently."
After considering the evidence, the jury recommended
the death penalty on both aggravated murder counts. The trial court
agreed and sentenced Dunlap to death on each murder count. The court of
appeals affirmed Dunlap's convictions and death penalty.
The cause is now before this court upon an appeal as
of right.
Joseph T. Deters, Hamilton County Prosecuting
Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for
appellee.
Elizabeth E. Agar, for appellant.
Pfeifer, J. Dunlap presents fifteen propositions of
law for our consideration. We have considered Dunlap's propositions of
law, independently weighed the statutory aggravating circumstances
against the evidence presented in mitigation, and reviewed the death
penalty for appropriateness and proportionality. Upon review, and for
the reasons which follow, we affirm the judgment of the court of appeals.
I. Admission of Confession
In his twelfth proposition of law, Dunlap argues the
trial court erred in failing to suppress his pretrial statements to the
police. At a pretrial hearing, Dunlap testified that Idaho police
officers manhandled and threatened him when they arrested him. He
claimed he waived his Miranda rights "out of fear of what might happen"
because "they were going to hurt me if I didn't say it was me." Dunlap
also claimed that he requested counsel several times before
interrogation, but the police ignored those requests. Dunlap admitted he
signed waivers of rights and submitted to interviews on October 16, 17
and 19.
Of course, if Dunlap did request counsel, and police
ignored the request and continued questioning him, his statements would
be inadmissible. When counsel is requested, interrogation must cease
until a lawyer is provided or the suspect reinitiates the interrogation.
Arizona v. Roberson (1988), 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d
704; Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378. However, the record of the suppression hearing supports a finding
that Dunlap voluntarily waived his rights and never requested to consult
counsel before agreeing to be interviewed by police or while being
interviewed. The October 16 interview was videotaped, and the interviews
on October 17 and 19 were audiotaped. The tapes show that during hours
of interviews, police readvised or reminded Dunlap of his rights several
times, and he signed two separate waivers of rights. At no time during
these taped interviews did appellant decline to answer questions or ask
to consult a lawyer before answering questions. The police never
threatened appellant or promised him anything to secure his cooperation.
On October 19, appellant freely talked with Cincinnati police officers
after again waiving his Miranda rights.
Admittedly, at one point during the taping of
Dunlap's October 17 statement, the police chief briefly referred to the
fact that the interview had been interrupted so Dunlap could sign "a
document for the Court." That document "has to do with appointing an
attorney, which you [Dunlap] do not have enough funds for."
However, the context makes it clear that this request
concerned the appointment of counsel for future court hearings. Dunlap
did not ask to consult with a lawyer before answering questions nor did
he ask for a lawyer to be present during any interviews. "The rationale
underlying Edwards is that the police must respect a suspect's wishes
regarding his right to have an attorney present during custodial
interrogation." Davis v. United States (1994), 512 U.S. , , 114 S.Ct.
2350, 2355, 129 L.Ed.2d 362, 372. As Davis held, "the suspect must
unambiguously request counsel." Id. at , 114 S.Ct. 2355, 129 L.Ed.2d at
371. Dunlap made no unambiguous request to consult counsel. See
Connecticut v. Barrett (1987), 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d
920; United States v. Mills (C.A.6, 1993), 1 F.3d 414. Instead, he
simply took a short break to sign a document to allow the Idaho court to
appoint him an attorney to represent him in future court proceedings.
Thereafter, Dunlap resumed the interview with the police chief that
Dunlap had himself initiated.
Moreover, that break in appellant's taped October 17
confession occurred relatively late in the course of that interview--two
thirds of the way through, in fact. After that point in the interview,
the police chief and Dunlap mostly discussed the Idaho robbery, not the
Ohio murder. Since abundant other evidence established appellant's guilt
of that second "course of conduct" murder, admitting the last portion of
appellant's October 17 confession or even his October 19 statement, even
if error, was harmless beyond a reasonable doubt.
"[T]he weight of the evidence and credibility of
witnesses are primarily for the trier of the facts. *** This principle
is applicable to suppression hearings as well as trials." State v.
Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584.
Accord State v. DePew (1988), 38 Ohio St.3d 275, 277, 528 N.E.2d 542,
547.
The trial court's decision to admit the statements
rests upon substantial evidence. We find no basis to reverse the trial
court's decision and reject the interview tapes and police officers'
testimony in favor of Dunlap's claims. We reject Dunlap's twelfth
proposition.
II. Multiple Charges and Specifications
In his first proposition of law, Dunlap correctly
argues that the trial court erred by submitting two charges of
aggravated murder to the jury for separate penalty determinations and in
imposing two death sentences. Since both charges "involve the same
victim, they merge." State v. Lawson (1992), 64 Ohio St.3d 336, 351, 595
N.E.2d 902, 913; State v. Huertas (1990), 51 Ohio St.3d 22, 28, 553 N.E.2d
1058, 1066.
However, we find this error harmless beyond a
reasonable doubt. State v. Cook (1992), 65 Ohio St.3d 516, 526-527, 605
N.E.2d 70, 82; State v. Brown (1988), 38 Ohio St.3d 305, 317-318, 528
N.E.2d 523, 538-539. Moreover, the court of appeals explicitly merged
the two murder counts and approved only a single death sentence.
Accordingly, we recognize that only a single death sentence remains but
otherwise reject Dunlap's first proposition.
In his second proposition of law, Dunlap argues that
the trial court's submission to the jury of the R.C. 2929.04(A)(7),
felony-murder death specification, in counts I and II, prejudiced his
rights to a fair sentencing determination. Dunlap argues the
specifications and instructions improperly multiplied the felony-murder
aggravating circumstance into two aggravating circumstances as
proscribed in State v. Penix (1987), 32 Ohio St.3d 369, 370-372, 513 N.E.2d
744, 746-747.
As Penix notes, 32 Ohio St.3d at 371, 513 N.E.2d at
746, "[p]rior calculation and design is an aggravating circumstance only
in the case of an offender who did not personally kill the victim." In
this case, the sentencing instructions referred to whether "the offense
of aggravated murder was committed while the defendant was committing
aggravated robbery or was committed with prior calculation and design
***." (Emphasis added.) By so doing, the instructions incorrectly
described the aggravating circumstance. However, unlike the court in
Penix, the court here did not multiply a single felony murder
specification into two aggravating circumstances. The jury's findings of
guilt, as well as the specifications in the indictment, correctly stated
this aggravating circumstance. Dunlap did not object to the instruction.
We find no plain error and reject Dunlap's second proposition. See, also,
State v. Cook, 65 Ohio St.3d at 527, 605 N.E.2d at 82.
III. Exclusion of Jurors
In his third proposition, Dunlap argues that
excluding jurors who could not vote for the death penalty violated his
right to a jury composed of a fair cross-section of the community.
However, death-qualifying a jury "does not deny a capital defendant a
trial by an impartial jury." State v. Jenkins (1984), 15 Ohio St.3d 164,
15 OBR 311, 473 N.E.2d 264, paragraph two of the syllabus; Lockhart v.
McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137. Here, the
record demonstrates those excluded held views which "would prevent or
substantially impair the performance" of duties in accordance with the
juror's "instructions and oath." State v. Rogers (1985), 17 Ohio St.3d
174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus,
following Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83
L.Ed.2d 841. Thus, Dunlap's third proposition lacks merit. State v.
Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, 586.
IV. Mercy Instruction
In his fourth proposition, Dunlap argues the trial
court erred in its penalty phase instructions by not allowing the jury
to consider sympathy and by failing to instruct on mercy. However, the
court properly instructed the jury to exclude sympathy. State v. Jenkins,
15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph three of the
syllabus; State v. Steffen (1987), 31 Ohio St.3d 111, 125, 31 OBR 273,
285, 509 N.E.2d. 383, 396. The court also properly refused to instruct
on mercy. State v. Lorraine (1993), 66 Ohio St.3d 414, 417, 613 N.E.2d
212, 216; State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030,
1036.
V. Sufficiency of Evidence
In his fifth and sixth propositions, Dunlap argues
the evidence was insufficient to establish his guilt of the R.C.
2929.04(A)(5) "course of conduct" specification alleging "the purposeful
killing" or attempt to kill two or more persons. Dunlap argues he did
not intend to kill Crane.
In a review for sufficiency, the evidence must be
considered in a light most favorable to the prosecution. Jackson v.
Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v.
Davis (1988), 38 Ohio St.3d 361, 365, 528 N.E.2d 925, 930. "[T]he weight
to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio
St.2d 230, 39 O.O.3d 366, 227 N.E.2d 212, paragraph one of the syllabus.
We find the evidence established that Dunlap purposefully killed Crane
and thus his guilt of the "course of conduct" specification. Dunlap told
Police Chief Blynn Wilcox he was angry with Crane and shot her because "she
set the alarm to the police and she didn't give me all the money." One
teller identified Dunlap as standing at the counter, and she saw the
shotgun barrel "stick out from the edge of the teller counter."
According to her, Dunlap "did not hesitate. As soon as he had the money,
he shot her." Another teller described Dunlap as "very determined" and "very
deliberate," and the force was so strong Crane "was even blown out of
her shoes." Dunlap's deliberate close-range firing of a shotgun at
Crane's chest, whatever the type of shells, proved his intent to kill.
"[A] firearm is an inherently dangerous instrumentality, the use of
which is reasonably likely to produce death[.]" State v. Widner (1982),
69 Ohio St.2d 267, 270, 23 O.O.3d 265, 266, 431 N.E.2d 1025, 1028,
followed in State v. Seiber (1990), 56 Ohio St.3d 4, 14, 564 N.E.2d 408,
419. Accord State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10 O.O.3d 78,
81, 381 N.E.2d 637, 640.
VI. Other Evidentiary Issues
In his thirteenth proposition of law, Dunlap argues
the trial court erred in allowing rebuttal testimony from reporter
Hopkins in the mitigation phase. In a phone call, Hopkins asked the
caller, who named himself Tim Dunlap, about remorse. Dunlap reportedly
said, "Yeah, I've got to regret I didn't get away." In extensive voir
dire, Hopkins explained why he was satisfied that Dunlap was the caller.
Hence, the trial court did not abuse its discretion in allowing Hopkins
to testify. "The admission or exclusion of relevant evidence rests
within the sound discretion of the trial court." State v. Sage (1987),
31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the
syllabus. See, also, Evid.R. 611 and 901.
The prosecutor's failure to list Hopkins as a
potential witness, or to eject him from the courtroom under a witness
separation order, did not mandate the exclusion of Hopkins as a witness.
A rebuttal witness's name need not always be disclosed. See State v.
Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O.3d 448, 451, 383 N.E.2d
912, 915-916; State v. Lorraine, 66 Ohio St.3d at 422, 613 N.E.2d at
220. Moreover, the exclusion of testimony for an asserted discovery
violation is discretionary. State v. Scudder (1994), 71 Ohio St.3d 263,
269, 643 N.E.2d 524, 530; State v. Wiles (1991), 59 Ohio St.3d 71, 78,
571 N.E.2d 97, 110. Also, any error was harmless. Abundant other
evidence suggests Dunlap lacked remorse, including testimony from Dr.
Estess, Dunlap's family, and even Dunlap's unsworn statement.
In his fourteenth proposition of law, Dunlap argues
the trial court erred in admitting four gruesome photographs, including
one autopsy photo and three crime scene photos. Under Evid.R. 403 and
611(A), the admission of photographs is left to a trial court's sound
discretion. State v. Jackson (1991), 57 Ohio St.3d 29, 37, 565 N.E.2d
549, 559; State v. Maurer (1984), 15 Ohio St.3d 239, 264, 15 OBR 379,
401, 473 N.E.2d 768, 791. We are satisfied the trial court did not abuse
its discretion in admitting these photographs. See State v. Morales
(1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273; Maurer, at
paragraph seven of the syllabus Thus, we reject both propositions.
VII. Constitutional Issues
In his eighth proposition, Dunlap challenges the
constitutionality of the felony-murder provisions in Ohio's death
penalty statute. However, we have long rejected those claims. See State
v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of
the syllabus. See, also, Lowenfield v. Phelps (1988), 484 U.S. 231, 108
S.Ct. 546, 98 L.Ed.2d 568; State v. Benner (1988), 40 Ohio St.3d 301,
306, 533 N.E.2d 701, 708.
We rejected challenges such as Dunlap's ninth
proposition in State v. Beuke (1988), 38 Ohio St.3d 29, 38-39, 526 N.E.2d
274, 285. See, also, State v. Bedford (1988), 39 Ohio St.3d 122, 132,
529 N.E.2d 913, 923; State v. Sowell (1988), 39 Ohio St.3d 322, 335-336,
530 N.E.2d 1294, 1308-1309. Dunlap's tenth proposition also lacks merit.
See State v. Jenkins, 15 Ohio St.3d at 176, 15 OBR at 321-322, 473 N.E.2d
278-279; State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d
383, at paragraph one of the syllabus.
VIII. Other Sentencing Issues
In his seventh proposition, Dunlap correctly argues
the trial court erred by allowing the prosecutor to improperly refer to
the nature and circumstances of the offense as aggravating circumstances.
Admittedly, "the nature and circumstances of an offense are not a
statutory aggravating circumstance and cannot be considered as such."
State v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d 293, 304; State
v. Davis, 38 Ohio St.3d at 370-371, 528 N.E.2d at 934. However, we find
any error harmless, since the prosecutor's misstatement did not
materially prejudice Dunlap.
The trial court's sentence instructions explained to
the jury the weighing process and the aggravating circumstances, and
these instructions negated the prosecutor's misstatements. See State v.
Greer (1988), 39 Ohio St.3d 236, 251, 530 N.E.2d 382, 400. "Moreover,
the prosecutor could legitimately refer to the nature and circumstances
of the offense, both to refute any suggestion that they were mitigating
and to explain why the specified aggravating circumstance *** outweighed
mitigating factors." State v. Combs (1991), 62 Ohio St.3d 278, 283, 581
N.E.2d 1071, 1077. See, also, State v. Stumpf (1987), 32 Ohio St.3d 95,
512 N.E.2d 598, paragraph one of the syllabus. In his eleventh
proposition, Dunlap argues the trial court erred in not requiring the
jury, as he requested, to articulate the method by which the jury
weighed the aggravating circumstances against mitigation evidence. In
effect, Dunlap argues that the jury should make special findings and
justify their sentencing verdict.
However, the Constitution does not require a jury in
a capital case to render a special verdict or special findings. See
State v. Jenkins, 15 Ohio St.3d at 212, 15 OBR at 352, 473 N.E.2d at
306; Hildwin v. Florida (1989), 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d
728. Additionally, the General Assembly mandated special findings from
the jury as to aggravating circumstances in R.C. 2929.03(B). However,
the General Assembly did not require the jury to explain its findings in
the sentencing recommendation. Hence, we reject this proposition.
IX. Reservation of Issues
In his fifteenth proposition, Dunlap asks this court
to consider other trial errors which may exist even though he failed to
argue or specify such errors. However, absent plain error, Dunlap waived
any such issue by not raising them here and in the court of appeals.
State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d
1364. In any event, we find no plain error that is so grievous that "but
for the error, the outcome of the trial clearly would have been
otherwise." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372
N.E.2d 804, at paragraph two of the syllabus. Proof of Dunlap's guilt
from his statements and the results of the car search was compelling.
Our independent reassessment of the sentence will negate the effect of
any unasserted error affecting the sentence.
X. Independent Sentence Assessment
After independent assessment, we find the evidence
clearly proves the aggravating circumstances for which Dunlap was
convicted, i.e., murder during a robbery and as a "course of conduct" in
purposefully killing or attempting to kill more than one person. As to
possible mitigating factors, we find nothing in the nature and
circumstances of the offense to be mitigating. Dunlap lured his
girlfriend to a secluded park area, blindfolded her, and promised her a
surprise. Then, he led her into the woods and cruelly shot her twice
with a crossbow. He left her to die alone, and killed her simply to
secure her possessions: an old car, credit cards, and checkbook.
Dunlap's history and background provide modest
mitigating features. However, his childhood and life as a young adult
are mostly unremarkable. He had the advantages of a stable home, loving
parents, and a solid education. Although regularly employed, he did not
keep jobs very long. Unfortunately, an early marriage turned sour in its
first year, and he became entangled in courts and mental hospitals.
After living homeless in Cincinnati, he turned on Bolanos, who had
befriended him. Dunlap denied use of drugs or excessive use of alcohol.
His admitted personality disorders, confirmed by hospital records and
Dr. Estess's testimony, provide only slight mitigation. Additionally,
the fact he has a son and a family who love him deserves some weight.
Yet, we find nothing in his character to be mitigating.
The statutory mitigating factors of age and lack of a
significant criminal history are relevant and deserve modest weight. See
R.C. 2929.04(B)(4) and (5). Dunlap had no criminal convictions prior to
this offense. Although Dunlap was twenty-three at the time of the
offense, he did have some college and was mature.
We find no other applicable statutory mitigating
factors in R.C. 2929.04(B)(1) to (6). His "personality disorders" were
not a mental disease or defect as Dr. Estess confirmed. See R.C.
2929.04(B)(3); State v. Fox (1994), 69 Ohio St.3d 183, 192, 631 N.E.2d
124, 131-132. As to "other factors," in R.C. 29292.04(B)(7), Dunlap's
cooperation with police was mitigating evidence. However, no significant
"other factors," as specified in R.C. 2929.04(B)(7), are relevant. His
personality disorders have already been considered as part of his
background. Some evidence exists that Dunlap expressed remorse, but
other evidence, including his unsworn statement, contradicts his claims
of remorse. Under the circumstances, we assign little weight to Dunlap's
remorse.
In our view, the aggravating circumstances outweigh
the modest mitigating factors present in this case beyond any reasonable
doubt. Dunlap killed Bolanos to rob her, and he robbed her using
treachery and extreme violence. Then, he stole her car, assumed the
identity of her fictitious husband, Steve Bolanos, and used her credit
cards to travel across the country. In Idaho, he killed another woman,
thus establishing the calculated "course of conduct." Even when
considered collectively, the mitigating factors he raises deserve only
modest weight and offer no redeeming value. Thus, we find the death
penalty is appropriate.
We find the death penalty in this case is neither
excessive nor disproportionate when compared with the penalty imposed in
similar cases of felony murder. See State v. Loza
(1994), 71 Ohio St.3d 61, 641 N.E.2d 1082; State v. Woodard (1993), 68
Ohio St.3d 70, 623 N.E.2d 75; State v. Green (1993), 66 Ohio St.3d 141,
609 N.E.2d 1253; State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d
972. We further find the death sentence proportionate when compared with
similar "course of conduct" murders. See State v. Loza, supra; State v.
Grant (1993), 67 Ohio St.3d 465, 620 N.E.2d 50; State v. Lorraine, 66
Ohio St.3d 414, 613 N.E.2d 212; State v. Hawkins (1993), 66 Ohio St.3d
339, 612 N.E.2d 1227; State v. Montgomery (1991), 61 Ohio St.3d 410, 575
N.E.2d 167; State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483;
State v. Combs, 62 Ohio St.3d 278, 581 N.E.2d 1071.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney
and Cook, JJ., concur.
FOOTNOTES:
1 In Idaho, Dunlap pled guilty to Crane's murder and
was sentenced to death. Upon appeal, the Idaho Supreme Court affirmed
his death sentence. See State v. Dunlap (1993), 125 Idaho 530, 873 P.2d
784.
2 The video deposition lasted one hour and seventeen
minutes, but was stopped after an extensive cross-examination because of
lack of tape. No issue has been raised as to that.
