State v. Gumm

• Decision Date: 30 August 1995
• Docket Number: No. 94-756,94-756
• Parties: The STATE of Ohio, Appellee, v. GUMM, Appellant.
• Court: Ohio Supreme Court

Page 413

73 Ohio St.3d 413

653 N.E.2d 253

The STATE of Ohio, Appellee, v. GUMM, Appellant.

No. 94-756.

Supreme Court of Ohio.

Submitted June 7, 1995.

Decided Aug. 30, 1995.

SYLLABUS BY THE COURT

Subject to applicable Rules of Evidence, and pursuant to R.C. 2929.03(D)(1) and (2), counsel for the state at the penalty stage of a capital trial may introduce and comment upon (1) any evidence raised at trial that is relevant to the aggravating circumstances specified in the indictment of which the defendant was found guilty, (2) any other testimony or evidence relevant to the nature and circumstances of the aggravating circumstances specified in the indictment of which the defendant was found guilty, (3) evidence rebutting the existence of any statutorily defined or other mitigating factors first asserted by the defendant, (4) the presentence investigation report, where one is requested by the defendant, and (5) the mental examination report, where one is requested by the defendant. Further, counsel for the state may comment upon the defendant's unsworn statement, if any. (R.C. 2929.03[D], construed; State v. DePew [1988], 38 Ohio St.3d 275, 528 N.E.2d 542, affirmed and followed.)

Early on the morning of May 12, 1992, the bludgeoned body of ten-year-old Aaron Raines was found by police in the basement of an abandoned building in the lower Price Hill section of Cincinnati. Defendant-appellant, Darryl "Junior" Gumm, was subsequently convicted of the crimes of aggravated murder, attempted rape and kidnapping of Aaron Raines, and sentenced to death.

At 11:00 p.m. on May 11, 1992, Aaron Raines's family reported Aaron as missing to Cincinnati police. An extensive neighborhood search took place, culminating in the discovery of Aaron's body in the basement of an abandoned building adjacent to a neighborhood park where Aaron had previously been playing.

Several weeks later Betty Gumm, a friend of the Raines family and defendant's sister through adoption, learned that her brother Darryl had been in the neighborhood on the day of Aaron's murder. Betty knew that her brother was acquainted with Aaron, and was familiar with the abandoned buildings where Aaron's body was found, having stripped copper out of them many times at night. Betty called the local "Crime Stoppers" number to report her information.

On July 24, 1992, Cincinnati police interviewed appellant at his job site, a tobacco farm in Brooksville, Kentucky. At that time, Gumm told police he hadn't been in Cincinnati since March 1992, and indicated his desire to cooperate with police. On July 27 Cincinnati police returned to Brooksville to talk to Gumm again, and Gumm accompanied them back to Cincinnati, ostensibly to clear himself of any wrongdoing. After extensive questioning in which he changed his statement several times, Gumm eventually confessed involvement in the murder of Aaron Raines.

Gumm's statement disclosed that he and one Michael Bies, a Kentucky acquaintance, were driven to Cincinnati on May 11 by acquaintances and dropped off around noon. Gumm told police that he and Bies went to a bar to drink beer, and later went to the Price Hill park adjacent to two abandoned buildings, where they encountered Aaron. Gumm and Bies were observed at approximately 7:00 p.m. sitting on a bench in the park in which Aaron last played. Gumm admitted that he lured Aaron into the abandoned buildings for sexual purposes by telling him he would be paid $10 to help strip copper from the buildings. According to Gumm, after the three entered the first building and crossed over a walkway into the second building, Bies asked Aaron to perform oral sex for money. When Aaron refused, Gumm claimed that Bies punched Aaron several times, picked him up and carried him downstairs to the basement. According to Gumm, Bies there hit Aaron several additional times, once on the head with a "two by four." After that, Gumm stated that he and Bies fled the scene. Gumm claims that he himself did not hit Aaron at all, but conceded that he might have stepped on his body as he was attempting to flee from the basement.

When police found Aaron's body at the basement crime scene, they noticed several objects around the body that contained blood and hairs consistent with the victim's. These objects included a chunk of concrete, a pipe, pieces of wood, and twine found wrapped around Aaron's neck.

Amy Martin, M.D., a former deputy coroner of Hamilton County, examined Aaron's body at the crime scene and conducted the post-mortem exam at the coroner's office. Dr. Martin testified that Aaron sustained twenty-one lacerations to the back of his head, representing twenty-one separate blows from an object, and that some of these wounds manifested lines that matched the threading on the pipe found next to the body. Five of Aaron's ribs were broken, which Dr. Martin found unusual for a boy of his age, since such bones are usually flexible. Dr. Martin opined that "something like a kicking or stomping" would be the type of force necessary to break a young boy's ribs. Dr. Martin further testified that the left side of Aaron's face was completely crushed in a manner consistent with a blow from the chunk of concrete found lying next to the body. Several "chevron pattern" bruises consistent with the tread of a Nike gym shoe were found on several areas of Aaron's body. Gumm had told police that he thought Bies had been wearing L.A. Gear gym shoes, and acknowledged that he had thrown his own shoes away.

Dr. Martin testified that Aaron also sustained a broken jaw, chipped teeth and cut lips, a deep laceration and bone chip on the underside of his jaw, compression wounds and hemorrhages in the eyes probably caused by compression of twine wrapped around his neck, and pattern bruises typical of injuries caused by being struck with a stick or rod.

Dr. Martin found no evidence of any defensive wounds on Aaron's body, and opined that the absence of defensive wounds was consistent with Aaron having been held or restrained while his injuries were being inflicted. Dr. Martin determined that the cause of death was a combination of blunt impacts to the head, chest and abdomen, as well as blunt injury to the neck.

Gumm was indicted by the Hamilton County Grand Jury on one count of aggravated murder with death penalty specifications based on violations of R.C. 2929.04(A)(3) (offense committed to escape detection for attempted rape or kidnapping) and R.C. 2929.04(A)(7) (felony-murder based on underlying felonies of kidnapping and attempted rape). Gumm was also indicted on separate counts of attempted rape (R.C. 2923.02) and kidnapping (R.C. 2905.01). At the conclusion of the guilt phase, the jury found Gumm guilty on all counts and specifications.

At the mitigation phase of the trial Gumm called one witness, his sister Karen Ridenour. He presented no statement himself. The jury found the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and recommended that Gumm receive the death penalty. The trial court merged the specifications and imposed the death sentence for the aggravated murder count. The court further imposed consecutive terms of imprisonment upon Gumm's convictions for attempted rape and kidnapping.

Upon appeal, the First District Court of Appeals affirmed the convictions and sentence of death.

Joseph T. Deters, Hamilton County Pros. Atty., and Christian J. Schaefer, Asst. Pros. Atty., for appellee.

H. Fred Hoefle and David J. Boyd, Cincinnati, for appellant.

MOYER, Chief Justice.

Appellant has raised twenty-two propositions of law. We have reviewed each and, for the reasons stated below, we find that none justifies reversal of appellant's conviction of the crimes of aggravated murder, kidnapping and attempted rape of ten-year-old Aaron Raines. In addition, we have fulfilled our responsibilities to independently review the record, weigh the mitigating factors against the aggravating circumstances, and examine the appropriateness and proportionality of a sentence of death in this case. Upon full review of the record we affirm appellant's convictions and death sentence.

I Allegation of Improper Consideration of "Nature and Circumstances" Evidence

Gumm argues that his death sentence should be reversed based on prosecutorial misconduct. Specifically Gumm complains of the following statements made by prosecutors in the penalty phase closing argument: "What are the aggravating circumstances in this case? All facts and all the circumstances and all the evidence that surrounded that episode back on May the 11th of this year. The age of the victim. How he died. Where he died. Why he died. The motive that was in the minds of the two men that took him into the building. How he was murdered. How he was left. All of these factors should be put on that scale and weighed by you, and on the other side of that scale you should put whatever mitigating factors you heard in the case today."

Later, in rebuttal, the prosecution continued: "And I'm going to speak a little bit about the aggravating circumstances at this point. He was ten years old. He weighed eighty-five pounds, and according to the defendant, he barely came above his waist. We know he was afraid of high places. He was absolutely terrified of the dark. * * *

"And can you think of anything more terrifying for a boy who is afraid of the dark, after all that's happened to him, than to be forcibly taken down into that pitch black basement?

"Just imagine what was going through his mind. How many times did he beg them to stop? How many times did he say a little prayer for help? And down in the basement we know it wasn't quick, and it wasn't easy either.

"How long did it take before he lost consciousness? And when he did, what were his last thoughts? Was he still asking this man to set him free? Or at that point was he begging to just let him die? Those are the aggravating circumstances on this case."

This court is thus once...