FORD.

On January 5, 1990, appellant, Jeffrey D. Lundgren, was charged in a ten-count indictment with five counts of aggravated murder, in violation of R.C. 2903.01, and with five counts of kidnapping in violation of R.C. 2905.01. Each of the aggravated murder counts contained a specification that the offense was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons, and a specification that the offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, and either appellant was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design. Appellant entered a plea of not guilty at his arraignment.

A jury trial commenced on August 23, 1990, and on August 29, 1990, the jury returned a verdict of guilty on all counts. The mitigation phase of the trial began on September 17, 1990, and concluded on September 20, 1990, when the jury returned a recommendation that the sentence of death be imposed.

On September 21, 1990, the trial court adopted this recommendation and sentenced appellant to death on counts one, two, three, four, and five, and an indefinite term of incarceration of ten to twenty-five years on counts six through ten, with each count to be served consecutively. Appellant timely filed a notice of appeal to this court on October 25, 1990.

On January 16, 1991, appellant filed a motion for a new trial pursuant to Crim.R. 33(A)(6), newly discovered evidence,FN1 which was denied on February 4, 1991. Appellant appealed from that decision on February 27, 1991. Both appeals were consolidated by this court on April 1, 1991.

Appellant lived on Chillicothe Road in Kirtland, Ohio, in a house which was located next to the Kirtland Temple, a religious site for the Reorganized Church of Latter Day Saints (RCLDS). He resided there initially with his four children, and his wife, Alice, and subsequently, Mr. Kevin Currie and Mr. Richard Brand moved in with them. Additionally, Ms. Sharon Bluntschly spent a great deal of her time at the Lundgren residence. Both Ms. Bluntschly and Mr. Brand had an arrangement with appellant in which they turned over their entire paychecks to him. Appellant had convinced them and other followers that he was a prophet of God and could interpret scriptures by using the so-called “chiastic” method. The “chiastic” method is a literal device used to interpret Hebrew poetry in which the reader searches for sentences containing two clauses that repeat themselves in reverse order. ( e.g., “that you look for a lion and he came as a lamb; now we look for a lamb, but he will come as a lion”.)

The Avery family, which consisted of Dennis Avery, his wife Cheryl, and his three daughters, Trina, age 15, Becky, age 13, and Karen, age 7, moved to Kirtland in the summer of 1987. Appellant did not want the Averys to be a part of his group because in his view they were not invited, and were “lazy, wimpy, and socially unacceptable.” However, once the Averys arrived, appellant convinced Dennis Avery to turn over all their money and property to him, which he then used to buy clothes and food for him and his wife.

At the time, appellant was a member of the RCLDS and was employed at the temple as a guide. Appellant regularly taught Sunday School classes at the temple, and also conducted classes in his home, which began showing higher attendance than his Sunday School classes. During those classes conducted at his home, appellant prophesied that God would reappear on earth, and that he would lead his followers to see God. Among the many things appellant taught his followers, the most significant was that they would have to kill ten people in order to fulfill his prophecies.

Apparently, appellant had originally intended to kill the Averys, the Patrick family, Mr. Brand, and Ms. Bluntschly. Appellant based his belief on a passage in the Book of Mormon which stated that ten people would depart from “the way,” and would include men, women, and children; specifically, daughters. Appellant also believed that the Old Testament teachings mandated death and destruction as a means of rendering judgment upon people who refused to repent. It was appellant's opinion that the Averys had failed to repent, and that he was the instrument of this judgment against them.

Appellant and his group moved to a farmhouse on Chardon Road in November 1987, after appellant was fired from his position as a tour guide at the Kirtland Temple. In the latter part of 1988 appellant began telling his group that the Averys would have to be killed soon, after which time the group would travel to the wilderness where they would see God in fulfillment of his prophecy. Appellant assigned tasks to each member of the group in preparation for the killings, e.g., forging birth certificates, acquiring weapons, food, and tents.

Soon thereafter, appellant and his wife visited the Averys with the intent of staking out their belongings and deciding which ones to take before killing them. On April 17, 1989, the Averys were invited to the Lundgren farm on the pretext of having dinner and preparing to go to the wilderness. Appellant made arrangements for the Averys to check in at the local Red Roof Inn, and had their belongings moved to the Lundgren farmhouse. Appellant later instructed Richard Brand to pick up the Averys and bring them to the farmhouse. Upon the Averys' arrival at the farm, appellant directed Mrs. Avery to write a letter to her mother explaining that the family would be moving to Wyoming.

After dinner, all of the men, with the exception of Dennis Avery, had two meetings to discuss appellant's specific plan to kill the Averys. This group included appellant's son, Damon Lundgren, Danny Kraft, Greg Winship, Richard Brand, and Ronald Luff. The first meeting took place in Damon's bedroom, and appellant inquired of each of the men, “Are you with me, or not?” The second meeting took place in the barn located in the rear of appellant's premises. During that meeting, appellant delegated responsibilities to each of the men. Two would apply duct tape to the Averys' mouths, hands, and feet; another would run a chain saw; and two others would carry the bodies to a pit which had been dug as a grave for the Averys.

After these meetings, the men proceeded to the barn. Under the guise of needing help, Ronald Luff told Mr. Avery that he was to go to the barn to help gather materials to take to the wilderness. Subsequently, Mr. Avery was attacked with a stun gun, wrestled to the ground, bound with silver duct tape with his eyes left uncovered, carried over a pile of garbage, and shot twice in the back by appellant.

Appellant preached that he left Mr. Avery's eyes uncovered so that he could see his executioner. Mr. Avery died from these shots. Mr. Luff was then sent to the house to retrieve Mrs. Avery, who was also led to the barn, attacked with a stun gun, wrestled to the ground, bound with duct tape, carried over the pile of garbage, dropped into the pit, and shot once in the back by appellant. Mrs. Avery also died from this shot. Under the guise of playing a game, Mr. Luff returned to the house and retrieved the eldest Avery daughter, Trina, who was then bound, dropped into the pit, and shot and killed by appellant.

Using the ruse of offering to show horses, Mr. Luff returned to the house to retrieve the two remaining Avery daughters, Becky and Karen. He carried them to the pit, bound their hands and feet with duct tape, and dropped them into the pit. Appellant shot and killed both of them. Becky Avery was shot once from behind, and once from the front. Karen Avery was shot once. When the entire family had been murdered, lime was spread over their bodies to enhance their decomposition. The pit was then piled with rocks and dirt and was covered with garbage and old appliances. Appellant then proceeded to remove all of the Averys' belongings from the Red Roof Inn.

In his unsworn statement, appellant related that this method of burial was necessary pursuant to passages in the Old Testament books of Isaiah and Deuteronomy which stated that he “shall put people to death” by binding their hands and feet, stoning them, and casting them into “utter darkness”. Appellant believed that “darkness” meant “death” in Hebrew.

The next day, paradoxically, after a visit from the FBI which came to question the group about a conspiracy to overthrow the temple, the members panicked, gathered their belongings, and headed for Davis, West Virginia, where they camped in a rural wooded area for five and one-half months. The group disbanded in October 1989, after local authorities there became suspicious of their connection to the Kirtland investigation, at which time some of the members headed to Missouri.

Appellant then moved to National City, California, where he and the remainder of his followers were arrested on January 7, 1990. After the arrests, the Bureau of Alcohol, Tobacco and Firearms (BATF) searched the motel rooms in which appellant had been staying, and found the group's collection of weaponry along with a roll of silver duct tape. Two guns sought by the Kirtland Police Department were later discovered in West Virginia. The murder weapon, a .45 automatic combat elite semi-automatic, was recovered from Mr. Charles Judy, who had purchased the gun from Paxton's Sports Shop in Elkins, West Virginia. The second gun, a .45 caliber gold cup, was obtained from Dr. Steven Lester who had purchased the weapon from Mountaineer Sports Center, also in Elkins, West Virginia.

ASSIGNMENTS OF ERROR:

“1. The trial court erred to the prejudice of appellant Lundgren by allowing improper and inflammatory testimony from state's witness Richard Brand. “2. The trial court erred by allowing the state to introduce the decayed clothing of the victims and by allowing irrelevant gruesome testimony on the victims' stomach contents. “3. The trial court erred by allowing the state to introduce evidence against Mr. Lundgren dealing with an unrelated conspiracy charge that had been dropped and numerous weapons in Mr. Lundgren's possession which were not used in the crimes for which he was on trial. “4. The trial court erred to the prejudice of appellant Lundgren by giving erroneous instructions at the guilt and penalty phases of appellant's capital trial. “5. The trial court erred by allowing the state to present penalty phase rebuttal evidence on Mr. Lundgren's criminal history. “6. Prosecutorial misconduct at the penalty phase of appellant Lundgren's capital trial deprived him of a fair and reliable sentencing determination in violation of the Eighth and Fourteenth Amendments. “7. The trial court erred in denying appellant Lundgren's motion for change of venue and motion for new trial. “8. The trial court erred by limiting defense voir dire on mitigating factors. “9. The trial court's conduct in voir dire denied appellant Lundgren his rights to trial by an impartial jury and due process of law guaranteed by the Sixth and Fourteenth Amendments. “10. The trial court erred to the prejudice of appellant Lundgren by failing to ensure that Mr. Lundgren was tried by a jury composed of fair jurors. “11. The trial court erred to the prejudice of appellant Lundgren by allowing prosecutorial misconduct to occur at the guilt phase of his capital trial. “12. The trial court erred to the prejudice of appellant Lundgren by allowing improper considerations to enter into its sentencing determination. “13. The trial court erred to the prejudice of appellant Lundgren by allowing prosecutorial misconduct to occur during voir dire. “14. The trial court erred to the prejudice of appellant Lundgren by failing to dismiss his defective capital indictment. “15. The trial court erred by restricting cross-examination of three accomplices who made deals with the state in exchange for their testimony. “16. The trial court erred to the prejudice of appellant Lundgren by admitting into evidence at the guilt phase personal belongings of the victims and a family photograph of the victims. “17. The trial court erred to the prejudice of appellant Lundgren by failing to dismiss the kidnapping specification attached to each count of aggravated murder. “18. There is reversible error when a juror allows his personal religious views to influence the capital sentencing decision. “19. The trial court erred to the prejudice of appellant Lundgren by admitting into evidence inflammatory and gruesome photographs, videotape and testimony. “20. The trial court erred to the prejudice of appellant Lundgren by failing to require unanimity as to the independent elements of the crime. “21. The trial court erred in denying appellant Lundgren's motion for a jury view of the Kirtland Temple. “22. The trial court erred to the prejudice of appellant Lundgren by failing to ensure that he received the effective assistance of counsel at his capital trial. “23. The trial court erred to the prejudice of appellant Lundgren in allowing the prosecutor to perempt jurors with reservations about the death penalty. “24. The trial court erred to the prejudice of appellant Lundgren by committing jurors to a death verdict in individual voir dire. “25. The trial court erred to the prejudice of appellant by instructing the jury at both guilt and penalty phases on the statutory definition of reasonable doubt in R.C. 2901.05. “26. The trial court erred to the prejudice of appellant Lundgren in failing to dismiss his capital indictment based on the proportionality process in Ohio. “27. The trial court erred to the prejudice of appellant Lundgren by failing to set aside the special venires drawn in appellant's case. “28. The trial court erred to the prejudice of appellant in failing to dismiss his capital indictment based on the mandatory nature of Ohio's capital statutory scheme. “29. The trial court erred to the prejudice of appellant Lundgren in failing to dismiss his capital indictment because the capital statutory scheme in Ohio is unconstitutional.

* * *

ASSIGNMENT OF ERROR NO. 5

Appellant argues that the trial court erred by allowing the state to present rebuttal evidence on appellant's criminal history during the penalty phase. Specifically, he contends that the trial court improperly allowed the testimony of appellant's past employers regarding his thefts while he was in their employ. During the penalty phase, appellant presented a psychologist, Dr. Nancy Schmidtgoessling, who testified in his behalf. During direct examination she stated that appellant had been on probation because he wrote bad checks. Also, she stated that appellant's employment was discontinued from several jobs due to conflicts and disagreements with other people.

In response, and during the penalty portion, appellee called three former employers in order to establish that appellant was let go because he stole from them. In State v. DePew (1988), 38 Ohio St.3d 275, the court determined that a prosecutor may rebut the unsworn statements of the defendant and the testimony of other witnesses. Id. at 286. Therefore, since the psychologist misstated, in part, the reasons for appellant's discharge, appellee could present evidence to the contrary. This conclusion is not altered by the fact that on cross-examination appellee was able to elicit from the psychologist that appellant stole from his previous employers. Next, appellant alleges that the court erred by allowing Shar Sprague to testify, during the penalty phase, regarding his plans to take over the Kirtland Temple. Because appellant said in his unsworn statement that he did not plot to take over the temple, Shar Sprague's testimony was admissible pursuant to DePew. This assignment is meritless.

ASSIGNMENT OF ERROR NO. 6

Appellant contends that prosecutorial misconduct deprived appellant of a fair sentencing determination. Within this assignment, appellant argues that prosecutorial misstatements of law; misrepresentation of the weighing process; elicitation of inflammatory testimony; improper nullification of mitigating evidence; unwarranted comment on the defendant's unsworn statement; and, appeals for a death sentence on religious grounds, operated, individually and cumulatively, to deny the capital defendant a fair and reliable sentencing determination.

First, appellant argues that appellee sent Mr. Currie a letter which said “if he (Currie) continues to cooperate or talk with Defense, he may not remain an unindicted co-conspirator.” Although appellee admits that a letter was sent to Mr. Currie informing him that his status as an unindicted co-conspirator was subject to review, he did not concede that the letter possessed the exact diction or threatening message as alleged. Because the letter is not part of the record, appellant is unable to demonstrate the claimed error; however, if the letter carried the tone as alleged, it would appear that appellee's letter violated ethical standards and was improper. “A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.” ABA Standards for Criminal Justice, The Prosecution Function, Standard 3-3.1(c).

Next, appellant asserts that there was prosecutorial misconduct by misstating the law; by eliciting irrelevant and inflammatory testimony regarding appellant's potential for future violence; by questioning a witness about the beliefs of the RLDS Church regarding adultery and stealing; and, raising the point that appellant's statement was unsworn. Appellant failed to object to any of the alleged prosecutorial misconduct except appellee's account that appellant's statement was unsworn. Accordingly, any error to which there was no objection is waived. Long, supra; Mills, supra, at 373.

Additionally, appellee was permitted to say that appellant's statement was unsworn so long as the comment was limited to reminding the jury that the defendant's statement was not made under oath in contrast to the other witnesses. DePew, supra, paragraph two of the syllabus. The relevant portions of appellee's closing argument are as follows: “The other problem with his statement yesterday, ladies and gentlemen, is, you heard the Judge [ sic ] remarks about it, you have heard Ms. Kowall mention it, that statement yesterday was given not under oath. Now, is it because the Defendant is not familiar with an oath? “ * * * “Ladies and gentlemen, during the course of testimony, during the post-phases of the trial, the indication to you that the Defendant made Kevin Currie swear an oath and if he violated that oath, he was to die. He had the naked dancing women swear an oath as they returned to their husbands with their soiled undergarments and he had their humiliated husbands swear an oath of allegiance to him dressed in full military gear after the conclusion of that dancing ceremony. “Ladies and gentlemen, the statement given by the Defendant yesterday, the prophet of God, you heard an oath administered by Judge Parks to each and every witness who came into this courtroom that is they swore and/or affirmed that the testimony that I am going to give to you, the jury, is the truth as you shall answer to God.

“The Defendant, ladies and gentlemen, did not take such an oath. You are permitted, ladies and gentlemen, to consider that fact as you consider his testimony.” Clearly, appellee did far more than remind the jury that appellant's testimony was unsworn. Thus, appellee's comments were not limited as required by DePew. However, we find such transgression to be nonprejudicial in light of the overwhelming aggravating circumstances in this case relative to the mitigating factors, which will be more fully discussed in our statutorily mandated weighing exercise. The assignment is meritless.

* * *

ASSIGNMENT OF ERROR NO. 25

During both the guilt and penalty phase instructions to the jurors at appellant's trial, the trial court read the standard statutory definition of reasonable doubt. However, under this assignment, appellant claims that the definition of reasonable doubt in R.C. 2901.05 reflects a “clear and convincing” standard which allows jurors to return a conviction and death sentence based on a degree of proof below that is required by the Due Process Clause of the Fourteenth Amendment. R.C. 2901.05(D) reads as follows in pertinent part: “ ‘Reasonable doubt’ is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. * * * ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”

Specifically, appellant argues that the “willing to * * * act” language provided the jury with no guidance because it is too lenient. We disagree with appellant's assertion. Based on appellant's failure to object to this instruction at trial, we again review for plain error. After the Criminal Code of 1974 was implemented in Ohio, the criminal defense bar contended that the common law definition of the “beyond a reasonable doubt” standard of the burden of proof in criminal cases had been gelded by the effective lobbying of the Prosecutor's Association in the legislature so that it represented no more than the civil “clear and convincing” standard. However, in the case of State v. Nabozny (1978), 54 Ohio St.2d 195, paragraph two of the syllabus, the Ohio Supreme Court addressed this issue and ruled that: “The definition of ‘reasonable doubt’ set forth in R.C. 2901.05 correctly conveys the concept of reasonable doubt and, therefore, is not an unconstitutional dilution of the state's requirement to prove guilt beyond a reasonable doubt.” This holding in Nabozny has been reaffirmed by numerous Ohio courts, including the recent case of State v. Van Gundy (1992), 64 Ohio St.3d 230, 232-233. See, also, State v. Cooey (1989), 46 Ohio St.3d 20,37; State v. Maurer (1984), 15 Ohio St.3d 239, 271; State v. Jenkins (1984), 15 Ohio St.3d 164, 211; and Columbus v. Bee (1979), 67 Ohio App.2d 65, 80. Additionally, the United States Court of Appeals for the Sixth Circuit has also held that the statutory definition, read as a whole, passes constitutional muster. Thomas v. Arn (C.A.6, 1983), 704 F.2d 865, 869. Accordingly, we find no merit to appellant's twenty-fifth assignment of error. The trial court properly instructed the jury regarding reasonable doubt.

ASSIGNMENT OF ERROR NO. 26

Appellant argues that the statutorily mandated proportionality process in Ohio does not comport with the requirements of both the Ohio and United States Constitutions, and is thus fatally flawed. Specifically, he contends that the trial courts in Ohio have consistently ignored the dictates of R.C. 2929.05(A), thereby creating a proportionality system tilted toward death. Appellant urges that reviewing courts should be required to compare cases in which the death penalty was imposed with those in which life imprisonment was imposed. We do not agree. R.C. 2929.05(A) states in relevant part: “ * * * In determining whether the sentence of death is appropriate, the court of appeals and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.” (Emphasis added.) We note that Ohio included proportionality in its capital case statutory language as an additional factor to pass later constitutional challenges. However, the United States Supreme Court later held in Pulley v. Harris (1984), 465 U.S. 37, 50, that lack of a specific statutory provision for proportionality review does not render a death penalty scheme unconstitutional. Nevertheless, it is still part of Ohio's statutory scheme. In a long line of cases, the Supreme Court of Ohio has consistently upheld the constitutionality of the Ohio death penalty statute. Lorraine, supra, at 426; State v. Jenkins (1984), 15 Ohio St.3d 164, paragraph one of the syllabus; State v. Wickline (1990), 50 Ohio St.3d 114, 124, citing State v. Buell (1986), 22 Ohio St.3d 124; Maurer, supra, paragraph one of the syllabus; and, State v. Zuern (1987), 32 Ohio St.3d 56, 63.

The law in Ohio is also clear that: “The proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed.” State v. Steffen (1987), 31 Ohio St.3d 111, paragraph one of the syllabus. (Emphasis added.) See, also, Lorrain e at 426. Hence, it is the rule in Ohio that, when conducting proportionality review, the appellate court is limited to comparing the appropriateness of the death penalty in the case at bar with other death penalty cases decided by that particular court in its district. Further, appellant presents us with no compelling reason why we should now find the statute to be unconstitutional. Therefore, we overrule appellant's twenty-sixth assignment of error. We conclude that the statutorily mandated proportionality process in Ohio guarantees a convicted capital defendant a fair and impartial review of his death sentence.

ASSIGNMENT OF ERROR NO. 27

Under this assignment, appellant asserts that the special venires drawn in his case were constitutionally inadequate to insure that he received a fair trial. Specifically, he claims that those persons in age groups 25-44, 45-54, and 65-74 were overrepresented, thus eradicating the fair cross-section requirement of the Ohio and United States Constitutions. We disagree. First, Crim.R. 24(E), Challenge to array, clearly states that a challenge to the array must be made prior to the examination of the jurors. Appellant did not timely object to the venire, or to the jury that was seated, on the basis that certain age groups were overrepresented. Therefore, this assignment was waived absent plain error.

It is well-established in Ohio that the system of jury selection which restricts veniremen to registered voters “ * * * represents a reasonable classification * * * from whom the defendant would be as likely to receive a fair and impartial verdict as he would from a jury composed of both registered and non-registered electors.” State v. Johnson (1972), 31 Ohio St.2d 106, 114. The Johnson court further stated that: “The right to trial by an impartial jury means that prospective jurors must be selected by officials without the systematic and intentional exclusion of any cognizable group. However, it is not necessary that every jury contain representatives of all economic, social, religious, racial, political and geographical groups of the community.” Id. (Emphasis added.) It is thus clear that “a defendant is not necessarily entitled to a 100 percent absolutely perfect cross-selection of citizens for the jury panel” in a given jurisdiction. Id. at 113.

Absent any authority suggesting that age groups are cognizable groups for purposes of fair cross-section analysis, it is our position that appellant failed to identify any systematic and intentional exclusion in the method employed by appellee. Random overrepresentation of certain age groups does not violate the fair cross-section requirements of the Ohio or United States Constitutions and cannot be used as a basis to set aside a lawfully constituted jury. Further, in the instant case, all age groups were represented. Once again, even if we were to conclude that such overrepresentation violated appellant's constitutional rights, it would not rise to the level of plain error due to the overwhelming nature of the evidence. Under these circumstances, overrepresentation of one age group simply has no bearing on an individual juror's propensity to determine guilt or innocence. This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 28 AND 29

Under appellant's twenty-eighth and twenty-ninth assignments of error, he claims that the mandatory nature of Ohio's capital statutory scheme is unconstitutional. Appellant also makes a general challenge to the Ohio capital statutory scheme. As stated previously, these challenges to Ohio's death penalty statute have been repeatedly rejected. See Lorraine, supra, at 426; Maurer, supra, paragraph one of the syllabus; and Jenkins, supra, paragraph one of the syllabus. Absent any compelling reason which would affect the consistent position of the Ohio Supreme Court, this claim should be disregarded. Accordingly, we overrule appellant's twenty-eighth and twenty-ninth assignments of error.

SUPPLEMENTAL ASSIGNMENT OF ERROR

On October 5, 1992, appellant moved this court for leave to submit a supplemental assignment of error. Appellee filed a response in opposition to this motion. We granted appellant's motion on October 9, 1992. Appellant claims in this assignment that the trial court erred by allowing appellee to exercise a religiously discriminatory peremptory challenge to excuse potential juror John Way. Mr. Way stated during the individual voir dire that he was presently a member of the Pentecostal Church and attended it regularly. However, later during the general voir dire, Mr. Way revealed that he and his wife had been members of a Mormon Church in Mayfield, Ohio, from 1977 to 1979. At that time, appellee exercised a peremptory challenge. The prosecutor stated no reason for exercising his peremptory challenge, and appellant offered no objection to the use of it at the time. Hence, appellant has waived this assignment absent plain error. Appellant contends that this use of a peremptory challenge is violative of his rights under both the United States and Ohio Constitutions. As stated in our discussion under the twenty-third assignment of error, a court may not normally inquire into the prosecutor's use of peremptory challenges except when the prosecutor attempts to exclude an identifiable group. Swain, supra, at 205.

Appellant relies heavily on Batson v. Kentucky (1986), 476 U.S. 79, and Powers v. Ohio (1991), 111 S.Ct. 1364. Taken together, Batson and Powers stand for the proposition that a defendant's right to equal protection is violated when the prosecution excludes black jurors on the basis of race, regardless of whether the defendant is black or white. However, appellant has failed to cite any authority supporting the claim that it is improper to use a peremptory challenge to excuse a juror on the basis of religion. Also, it is fundamental in our legal system that blacks are a constitutionally cognizable minority for purposes of equal protection, subject to the highest level of constitutional protection. We are mindful that religious beliefs have traditionally been accorded the highest level of constitutional protection for purposes of the First Amendment. See Unemployment Div., Dept. of Human Res. v. Smith (1990), 110 S. Ct. 1595; Church of Lukumi Babalu Aye v. City of Hialeah (1993), 113 S.Ct. 2217, 2226. However, for purposes of equal protection, religious groups are not a “suspect class” subject to a strict scrutiny analysis. Thus, we cannot literally analogize the exclusion of blacks from a jury to the exclusion of religious groups for these purposes. Based on the foregoing, we conclude that the trial court did not err in permitting appellee to exclude juror Way. Accordingly, appellant's supplemental assignment is not well taken.

R.C. 2905 requires an appellate court to conduct a separate and independent review of this case. “First, the court of appeals shall determine if the evidence supports the finding of the aggravated circumstances of which the offender was found guilty. Second, the court must independently weigh all the evidence disclosed in the record to determine whether the aggravating circumstances outweigh the mitigating factors. And third, the court must consider whether the sentence was excessive or disproportionate to the penalty imposed in similar cases.” State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported at 42. Each of the five aggravated murder counts contained two specifications or aggravating circumstances. The specifications read as follows:

SPECIFICATION

“The Grand Jurors further find and specify 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.

SPECIFICATION

“The Grand Jurors further find and specify the offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” The uncontroverted evidence clearly establishes that appellant's course of conduct involved the purposeful killing of two or more persons. Furthermore, as we stated in appellant's seventeenth assignment of error, the evidence demonstrates that appellant murdered the victims while committing kidnapping. Thus, the evidence supports the jury's finding of the existence of aggravating circumstances. Turning to the weighing exercise, we conclude, as did the jury and the trial court, that the aggravating circumstances outweigh the mitigating factors. In reaching our decision, we are permitted to “ * * * refer to the nature and circumstances of the offense to show why the aggravating circumstances outweigh the mitigating factors.” Lorraine, supra, at 422; see, also, State v. Lott (1990), 51 Ohio St.3d 160, 171; State v. Stumpf (1987), 32 Ohio St.3d 95, paragraph one of the syllabus. However, we recognize that “ * * * the nature and circumstances of an offense are not a statutory aggravating circumstance and cannot be considered as such.” Lott, supra, at 171; see, also, Lorraine, supra, at 422. In this case, the evidence establishes that appellant preached about killing the Averys. He lured them to the farmhouse on the night of their murders by inviting them to dinner and telling them that they would be going with the group to the wilderness. Immediately after dinner, appellant met with some of his followers to finalize his murderous scheme. Appellant dictated the followers' roles which included leading each victim, one by one, to the barn; duct taping their hands, feet and mouth; and, carrying their live bodies to a predug common grave. Once placed in the pit, appellant shot each of the Averys.

Mitigating factors are outlined in R.C. 2929.04(B) as follows: “(1) Whether the victim of the offense induced or facilitated it; (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (4) The youth of the offender; (5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”

Prongs one, two, three, four, and six are inapplicable to our case as the record is devoid of evidence which would provide mitigation matter which might favor the appellant under those subsections. The victims did not induce or facilitate their deaths. Appellant was not under duress, coercion, or strong provocation at the time that he committed the murders. Although there was testimony that appellant suffers from a personality disorder, such disorder does not rise to the crest of a mental disease or defect which caused him to lack capacity to appreciate the criminality of the murders or to conform his conduct to lawfulness. Appellant was not a youthful offender. Last, he planned the murders and was the principal offender. The fifth prong is pertinent here since the mitigating submissions indicate that appellant does not have a significant history of prior criminal convictions. In so concluding, we realize that there was testimony that appellant stole from virtually each of his employers; however, such acts did not result in convictions. Furthermore, while there was testimony that appellant had been placed on probation for writing bad checks, this conviction alone does not constitute a significant criminal conviction history.

The majority of appellant's mitigating evidence concentrated on his family life which would fall under subsection (7) of R.C. 2929.04(B). Specifically, he had a strict upbringing and seldom lived up to his parents' expectations. Dr. Schmidtgoessling said that appellant has feelings of inadequacy which result in a personality disorder. The predominant features cause appellant to be narcissistic, paranoid, and, antisocial. Such disorder also causes appellant to have feelings of grandiosity which is an unrealistic notion as to his own abilities. While this evidence may create some empathy for the appellant, it does not provide a substantial degree of mitigating weight. Therefore, it is our conclusion that the aggravating circumstances clearly outweigh appellant's mitigating factors. As such, we leave the jury's and trial court's decisions undisturbed in this regard. Last, we examine whether appellant's sentence was excessive or disproportionate when compared with other aggravated murder cases in this district. This court has affirmed the imposition of death in four cases, State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported; State v. Wiles (June 3, 1988), Portage App. No. 1675, unreported; State v. Hill (Nov. 27, 1989), Trumbull App. Nos. 3720/3745, unreported; and, State v. Lorraine (Aug. 10, 1990), Trumbull App. No. 3838, unreported.

“In Glenn, supra, the defendant had plotted the escape of his half brother from the Mahoning County Jail. While his half brother was being transported to a doctor's office by a sheriff's deputy, defendant struck the police car with his own car. When the deputy exited the patrol car, the defendant shot and killed him. During the mitigation phase of the trial, it was established that the defendant was only twenty years old, that he had a low intelligence level and had special educational needs, and that he came from a poor background and environment. Nevertheless, this court, by a two to one vote, held that the death penalty was appropriate. In Wiles, supra, the defendant was burglarizing the home of his former employers. He waited until he thought the house was unoccupied and then entered through an unlocked door. Once inside, the defendant was surprised by the fifteen year old son of his former employers. The defendant stabbed the smaller, weaker boy with a butcher knife at least eleven times and escaped with $260 cash.

The mitigating factors that the court considered included the fact that the defendant was twenty-two years old at the time of the murder, and that the defendant eventually turned himself over to the police. However, he denied any involvement in the murder and had turned himself in only after fleeing to Georgia and running out of food and money. Upon review, this court affirmed the trial court's decision holding that the death penalty was neither excessive nor disproportionate. In Hill, supra, the defendant tackled a twelve year old boy who was riding his bicycle through a wooded area behind a grocery store. The defendant, and an accomplice, beat the boy violently, sexually assaulted him, impaled him with a long wooden instrument, strangled him with his own underwear, and burned his face and body by pouring lighter fluid on him and igniting it. The boy was left for dead but managed to live for two more days. The court considered a number of mitigating factors. The defendant was eighteen years old at the time of the incident and had diminished mental capacity. He was mildly to moderately retarded, although he understood the difference between right and wrong. It was also established that the defendant was essentially illiterate. This court held that the death sentence was appropriate.” Lorraine, at 61-63.

In Lorraine, the defendant stabbed to death Raymond and Doris Montgomery, ages seventy-seven and eighty. He lured Mr. Montgomery upstairs and stabbed him five times. Then, the defendant went downstairs and stabbed Mrs. Montgomery nine times. The court considered mitigating factors including the defendant's youth, low intelligence, poor family environment, and antisocial personality disorder. This court found the death penalty appropriate. By comparison with the foregoing cases, the sentence in this case is not disproportionate or excessive. Appellant had little in the way of mitigating factors and the aggravating circumstances significantly outweighed the mitigating factors which were present.

The judgment of the trial court is affirmed. A certified copy of this document shall constitute the separate opinion as to findings of the court in this case within the meaning of R.C. 2929.05(A) and the Clerk of this Court shall immediately make and file such certified copy with the Clerk of the Supreme Court of Ohio. Pursuant to R.C. 2953.07, this court having affirmed the trial court and the date for execution having passed, this court sets the date of December 1, 1993, for the execution of the death sentence.

CHRISTLEY, J., concurring.

I wholeheartedly concur in judgment with the majority. However, with respect to appellant's ninth assignment of error, I would adopt a slightly different stance. In response to open-ended questions during voir dire, jurors Rossman and Byers indicated they would have a hard time according appellant the presumption of innocence. Technically, since they did ultimately indicate in response to closed-end questions that they would unequivocally do so, they met the test set out in Rogers, supra. However, I feel that the better practice would have been for the trial court to excuse them upon appellant's challenge for cause so as to hopefully find others who would not need to be shamed or persuaded into according appellant the presumption of innocence.

Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006). (Habeas)