State v. Maurer, 84-642

• Citation: 15 Ohio St.3d 239,15 OBR 379,473 N.E.2d 768
• Decision Date: 20 December 1984
• Docket Number: No. 84-642,84-642
• Parties: , 15 O.B.R. 379 The STATE of Ohio, Appellee, v. MAURER, Appellant.
• Court: United States State Supreme Court of Ohio

Page 239

15 Ohio St.3d 239

473 N.E.2d 768, 15 O.B.R. 379

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

No. 84-642.

Supreme Court of Ohio.

Dec. 20, 1984.

Syllabus by the Court

1. Ohio's statutory framework for imposition of capital punishment, as adopted by the General Assembly effective October 19, 1981, and in the context of the arguments raised herein, does not violate the Eighth and Fourteenth Amendments to the United States Constitution or any provision of the Ohio Constitution. (State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, paragraph one of the syllabus, followed.)

2. To death-qualify a jury prior to the guilt phase of a bifurcated capital prosecution does not deny a capital defendant a trial by an impartial jury. (State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, paragraph two of the syllabus, followed.)

3. The trial court, when it imposes a sentence of death, shall state in a separate opinion its specific findings as to the existence of any mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why these aggravating circumstances were sufficient to outweigh the mitigating factors.

4. R.C. 2929.05 requires the court of appeals, and the Supreme Court as well, to independently weigh all the facts and other evidence in the record in determining whether the aggravating circumstances outweigh the mitigating factors in reviewing the sentencing court's determination. As a necessary corollary to that requirement, the court of appeals and the Supreme Court must articulate the reasons why the aggravating circumstances outweigh the mitigating factors.

5. A capital defendant is not entitled to a special verdict on the question of intent to kill at the guilt phase of a capital prosecution. (State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, paragraph nine of the syllabus, followed.)

6. The standard of proof in a capital prosecution is proof beyond a reasonable doubt as defined in R.C. 2901.05 and not proof beyond all doubt. (State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, paragraph eight of the syllabus, followed.)

7. Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.

On September 29, 1982, Dawn M. Hendershot, a seven-year-old girl, failed to return home from school where she attended second grade. An extensive search was conducted in and around the Massillon, Ohio area where Dawn Hendershot resided, but was unsuccessful in locating the missing girl.

Witnesses established that the girl had been seen entering a car upon leaving school the day she disappeared and that a young girl fitting Dawn Hendershot's description had been seen with a man in a car on a county road near a wooded area.

Donald L. Maurer (hereafter referred to as appellant), who resided across the street from the Hendershot family, was interviewed several times by police in connection with Dawn Hendershot's disappearance. On October 1, 1982, appellant's car was searched pursuant to a warrant and, among other things, a twelve-gauge shotgun with ammunition was seized. That evening, appellant arrived at the police station at the invitation of the police. After questioning, appellant confessed to the killing of Dawn Hendershot.

Appellant stated that he had arrived at the victim's school in order to pick up his stepchildren and other neighborhood children. Dawn Hendershot entered appellant's vehicle. Before any other children entered appellant's vehicle, appellant drove away. Appellant and Dawn Hendershot drove into the country and stopped near a wooded area. From there appellant and Dawn Hendershot left the vehicle and entered the woods on foot. Appellant carried a twelve-gauge shotgun with him. Appellant sat the young girl on a fallen tree and attempted to sexually molest her by placing a finger into her vagina. Appellant then became frightened and tried to strangle Dawn Hendershot with her sweater. When the girl struggled, appellant shot Dawn Hendershot in the back with the shotgun. Appellant then covered Dawn Hendershot's lifeless body with twigs and leaves and returned home.

On the morning following his statement, appellant led police to Dawn Hendershot's body.

Appellant was indicted for aggravated murder with a specification, ¹ kidnapping, and gross sexual imposition. The cause proceeded to a jury trial where guilty verdicts were returned on each count of the indictment, including the death penalty specification. The cause then proceeded to the sentencing phase where the same jury recommended that appellant receive the death penalty. The trial court adopted the jury's recommendation and ordered that appellant be executed. In addition, appellant received concurrent sentences of seven to twenty-five years for kidnapping and two to five years for gross sexual imposition.

The court of appeals affirmed appellant's convictions and death sentence in all respects. The cause is now before this court on appeal as of right.

James R. Unger, Pros. Atty., and Dale T. Evans, Massillon, for appellee.

Randall M. Dana, Public Defender, David C. Stebbins, Painesville, and James B. Lindsey, Canton, for appellant.

FRANK D. CELEBREZZE, Chief Justice.

Today we are confronted with questions concerning appellant's conviction and subsequent death sentence. As we did in State v. Jenkins (1984), 15 Ohio St.3d 164, 473 N.E.2d 264, we affirm appellant's convictions and reject appellant's challenges to this state's death penalty statutes. Additionally, we uphold the recommendation of the jury and the decision of the courts below that appellant be executed for this hideous crime.

I

As in State v. Jenkins, supra, appellant contends that the Ohio death penalty statutes violate his rights under the Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution. Specifically, appellant contends that: imposition of the death penalty is cruel and unusual punishment; the death penalty is arbitrary and capricious since prosecutors inevitably exercise discretion in pursuing capital cases; Ohio has failed to employ the least restrictive means to achieve deterrence and societal protection; the death penalty can only be imposed when deliberation and premeditation are shown to exist; the state must prove the absence of any and all mitigating factors prior to imposing a death sentence; no standard is set forth for determining who bears the burden of going forward with evidence of mitigating factors and what standard of proof applies; the instruction to a jury to "weigh" aggravating circumstances against mitigating factors is standardless; the statute is constitutionally infirm for failing to instruct juries that life imprisonment is an available sentencing option even where aggravating circumstances outweigh mitigating factors; information essential to proportionality review is not required under the statute; felony murders are treated disproportionately to premeditated murders in that the same conduct which convicts under R.C. 2903.01(B) also aggravates under R.C. 2929.04(A)(7); and defendants charged with capital offenses must be afforded a new jury during the sentencing phase.

These contentions were addressed in State v. Jenkins, supra, at paragraph one of the syllabus, where we concluded that "Ohio's statutory framework for imposition of capital punishment, as adopted by the General Assembly effective October 19, 1981, and in the context of the arguments raised herein, does not violate the Eighth and Fourteenth Amendments to the United States Constitution or any provision of the Ohio Constitution." In view of this holding, the aforementioned constitutional arguments set forth by appellant, which were considered in Jenkins, must also be rejected. We therefore proceed to consider appellant's remaining challenge concerning the constitutionality of the Ohio death penalty statutes as applied in this case.

Appellant argues that the aggravating circumstance of which he was convicted is unconstitutionally overbroad. The aggravating circumstance applied to appellant was that he had committed an aggravated murder in the course of a kidnapping, as proscribed under R.C. 2929.04(A)(7). That section provides, in pertinent part, as follows:

"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."

Under R.C. 2905.01 ² a kidnapping will occur if an offender by force, threat or deception restrains an individual from liberty for the purpose of terrorizing or inflicting serious physical harm on the victim. As appellant observes, in virtually every aggravated murder the victim will be restrained from liberty for the purpose of terrorizing or the infliction of serious physical harm. Appellant therefor maintains the aggravating circumstance applied in his conviction is unconstitutionally overbroad.

In support of this argument, appellant principally relies upon Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398. In that case, the Supreme Court vacated a death sentence predicated upon the aggravating circumstance that the murder was outrageously or wantonly vile, horrible or inhuman. In finding this aggravating circumstance overbroad, the Supreme Court reasoned that a person of ordinary sensibility could fairly conclude that virtually every murder is outrageously or wantonly...