Executed January 16, 2014 10:53 a.m. by Lethal Injection in Ohio
3rd murderer executed in U.S. in 2014
1362nd murderer executed in U.S. since 1976
1st murderer executed in Ohio in 2014
53rd murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(3) |
Dennis B. McGuire W / M / 29 - 53 |
Joy G. Morningstar Stewart W / F / 22 |
With Knife |
Citations:
State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (Ohio 1997). (Direct Appeal)
McGuire v. Ohio, 619 F.3d 623 (6th Cir. 2010). (Habeas)
Final/Special Meal:
McGuire's last meal yesterday consisted of roast beef, a cream cheese bagel, fried chicken, potatoes two ways, butter pecan ice cream and Coca-Cola. He skipped breakfast this morning.
Final Words:
McGuire thanked the victim's family for a letter he apparently received from them, referring to “kind words” he said meant a lot. “I’m going to heaven, I’ll see you there when you come.”
Internet Sources:
Ohio Department of Rehabilitation and Correction
Dennis McGuire
Number: CCI#: A305-892
Date of Birth: 02/10/60
Gender: Male Race: White
Date of Offense: 92/11/89
County of Conviction: Preble
Institution: Chillicothe Correctional Institution
Executed: 01/16/2014
On January 16, 2014, Dennis McGuire was executed for the 1989 aggravated murder of Joy Stewart.
"Killer struggles, gasps repeatedly under new 2-drug combination," by Alan Johnson. (January 16, 2014)
LUCASVILLE, Ohio – Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. The 24-minute execution process was a “failed, agonizing experiment by the state of Ohio,” said one of the killer’s attorneys, Allen Bohnert, a federal public defender. “The people of the state of Ohio should be appalled by what was done in their name.”
McGuire’s death by lethal injection at 10:53 a.m. may have been marked by the “air hunger” that McGuire’s attorneys feared would occur from the combination of drugs used for the first time in a U.S. execution. “What we suggested to the court did happen,” said Bohnert, who refused to speculate on whether McGuire suffered. He also would not say whether further legal action would be pursued under the U.S. constitutional ban against cruel and unusual punishment.
After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still. McGuire's adult children, Amber and Dennis, along with Dennis’ wife, were among those who watched his execution in small, windowless room at the Southern Ohio Correctional Facility. The three joined arms and sobbed throughout the procedure.
Joy Stewart, 22, of West Alexandria, a small town about 20 miles west of Dayton, was about 30-weeks pregnant when McGuire raped her, choked her, and slashed her throat so deeply it severed both her carotid artery and jugular vein. At the same point, her unborn child died, too, probably in the woods in the rural area of Preble County where her body was found the next day by two hikers.
“This has been a long time coming. Joy’s death was the hardest thing our family has had to endure,” the victim’s family said in a three-paragraph statement. “There has been a lot of controversy regarding the drugs that are to be used in his execution, concern that he might feel terror; that he might suffer. As I recall the events preceding her death, forcing her from the car, attempting to rape her vaginally, sodomizing her, choking her, stabbing her, I know she suffered terror and pain. He is being treated far more humanely than he treated her. “Ultimately, we must all face judgment – both here and on Earth and in Heaven. It is his time to face his judgment.”
McGuire, 53, died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The combination, never before used in a U.S. execution, was chosen by the Ohio Department of Rehabilitation and Correction because pentobarbital, the single drug previously used, is no longer available. In his final statement, McGuire said, “I'd like to say to Joy's family, thanks for the letter and the kind words. They meant a lot ... To my children, I love you. I'm going to heaven. I will see you there when you get there.” Carol Avery, the victim’s sister, also witnessed.
The execution had an unusually large news media contingent on hand; in recent years, the media had dwindled away as executions became almost routine since Ohio re-instated in the death penalty in 1999. Outside, a handful of anti-death penalty protestors demonstrated as temperatures remain in the low 20s even after sunrise this morning.
McGuire ordered a last meal of roast beef, fried chicken, fried potatoes with onions, potato salad, toasted onion bagel with cream cheese, butter pecan ice cream and a Coke. He was the first person to be executed in Ohio this year.
"Family to file lawsuit after troubled execution," by Alan Johnson. (Fri January 17, 2014 11:50 AM)
The family of Dennis McGuire will file a federal lawsuit against the state of Ohio over his troubled execution yesterday. Amber and Dennis McGuire, the executed man’s children, scheduled a press conference this morning in Dayton to announce their intention to go to court. The suit will claim McGuire’s 8th Amendment rights under the U.S. Constitution to avoid “cruel and unusual punishment” were violated when he gasped for air, choked and struggled against his restraints for about 10 minutes before being declared dead at 10:53 a.m.
“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” Amber McGuire said in a statement. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.” McGuire’s children were witnesses at his lethal injection at the Southern Ohio Correctional Facility near Dayton.
McGuire, 53, was executed for the brutal 1989 murder of Joy Stewart, 22, who was newly married and 30 weeks pregnant at the time of her death. McGuire raped Stewart vaginally and anally, choked her, stabbed her in the chest, and slit her throat. He dumped her body in the woods near Eaton, Ohio, where it was found the next day by two hikers.
There was no clear indication that the drug combination — never before used in a U.S. execution — triggered McGuire’s death struggles. But Allen Bohnert, one of McGuire’s federal public defenders, called the execution a “failed, agonizing experiment by the state of Ohio.” McGuire died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The two drugs had never been used before in an execution in the U.S. The state switched to the new drugs because pentobarbital, the single drug used before, is no longer available as manufacturers will not sell it for use in executions.
“The people of the state of Ohio should be appalled by what was done in their name,” Bohnert said. Ohioans to Stop Executions called for an immediate death-penalty moratorium after what it called the “horrific events.”
"Pregnant woman's killer executed in Ohio by new method," by Kim Palmer. (Thu Jan 16, 2014 5:47pm EST)
CLEVELAND (Reuters) - A man condemned for a rape and murder convulsed and appeared to struggle for breath during his execution in Ohio on Thursday after a two-drug lethal injection method was used for the first time in the United States, according to media witnesses. Dennis McGuire, 53, who was sentenced to death after his conviction for the 1989 killing of a woman who was seven months pregnant, was the third man executed in the United States this year.
McGuire received a combination of the sedative midazolam and pain killer hydromorphone, a mix Ohio created as a substitute option in case it had difficulty obtaining pentobarbital, a drug whose manufacturer has objected to its use in executions. McGuire was pronounced dead at 10:53 a.m. ET (1553 GMT) at a state prison, the Ohio Department of Rehabilitation and Correction said in a statement.
A Dayton Daily News reporter, who was present at the execution said; "At 10:29 a.m., his eyes rolled back as if he were going to sleep, and at 10:35 a.m., McGuire, who appeared to be unconscious, was convulsing, gagging and struggling to breathe." Prison spokeswoman, JoEllen Smith declined to comment on the description given by the reporter and other witnesses that McGuire struggled to breathe after the drugs were administered.
McGuire's family members witnessing his execution could be seen crying and a family member was heard saying "how could this go on for so long?" the Daily News reported. Afterward, attorney Allen Bohnert, an assistant federal public defender who represented McGuire, urged Ohio Governor John Kasich to declare a moratorium on executions. "The experiment that was this execution has failed," Bohnert said in a telephone interview.
Bohnert did not witness the execution, but said reports he received also indicated that McGuire gasped for breath for about 15 minutes after he was injected with the drugs. Lawyers for McGuire had argued in a last minute appeal that the never-before used drug combination would put him at a substantial risk of severe pain and a terrifying inability to breathe before he lost consciousness during the execution. U.S. District Judge Gregory Frost refused to stop the execution, but ordered prison officials to preserve the medication vials, the boxes in which they were packaged and the syringes used for McGuire's execution.
McGuire's execution was the third time Ohio has used untested execution drugs. Three botched executions from 2006 to 2009 had resulted in Frost ruling Ohio's lethal injection protocols unconstitutional and ordering a temporary halt to executions.
McGuire was convicted of the 1989 rape, kidnapping and murder of Joy Stewart, whose body was found by hikers in woods in western Ohio a day after she had been seen talking with McGuire, according to court records. McGuire initially accused his brother-in-law of killing Stewart, but DNA tests cleared the man and pointed to McGuire. Additional DNA tests years later confirmed McGuire's guilt.
Two days before a hearing on his petition for clemency in December, McGuire admitted in a letter to Kasich that he had killed Stewart during a heated argument. Kasich denied him clemency. In a final statement, McGuire thanked Stewart's family for a letter he apparently received from them and said, "To my children, I love you. I'm going to heaven. I'll see you there when you get there," Smith said.
Ohio had planned to use the two-drug method in November to execute condemned killer Ronald Phillips, but Kasich stayed his execution to assess whether Phillips' non-vital organs or tissues could be donated after his death. (Editing by David Bailey, Stephen Powell, Sofina Mirza-Reid and Bernard Orr)
"Records show execution was longest for Ohio," by Andrew Welsh-Huggins and Kantele Franko. (AP 01/17/14)
A convicted killer took 26 minutes to die during an execution in which he gasped repeatedly — the longest execution in Ohio since the state resumed capital punishment 15 years ago, records show. The case has led to cries of cruel and unusual punishment and demands for a moratorium on executions in Ohio. The timeline of Dennis McGuire’s death indicates he began receiving Ohio’s never-before-tried combination of lethal drugs at 10:27 a.m. Thursday and was pronounced dead at 10:53 a.m. The next-longest execution was the 22 minutes it took killer Reginald Brooks to die in 2011, according to an Associated Press analysis of the timelines of the 53 Ohio executions since 1999. Brooks received a lethal dose of a different drug.
McGuire, 53, was put to death for the 1989 rape and fatal stabbing of a pregnant newlywed, Joy Stewart. He was executed with doses of a sedative and painkiller that had never been used before to put an inmate to death in the U.S. He gasped, made snorting sounds and repeatedly opened and shut his mouth during the execution.
Most inmates over the past 15 years took 15 minutes or less to die, the records show. In years when Ohio’s lethal injection mix consisted of three drugs, many inmates died in less than 10 minutes, according to the records. Also, executions under the old method did not cause the kind of sounds McGuire made. Ohio’s prison system, which is reviewing the execution, declined to comment on the amount of time it took McGuire to die.
McGuire’s unusually slow execution amounted to torture, the man’s adult children said Friday as they announced plans to sue over his death. “I don’t feel like anybody deserves that — families, or my dad, anybody on death row — nobody deserves to go through that,” said McGuire’s son, also named Dennis. McGuire’s daughter, Amber McGuire, said she was so horrified that she covered her ears so she wouldn’t hear the sounds he made.
The execution violated McGuire’s constitutional protection against cruel and unusual punishment, said attorney Jon Paul Rion, representing McGuire’s children. He called it unquestionably cruel. “The question is whether or not the state of Ohio should duplicate the actions of a criminal. And our answer is no,” Rion said. “If we are going to condemn the actions of a person as being wrong because it creates pain, because it creates victims, because it creates an injustice, because it deprives people of life unjustly, then the state of Ohio should not duplicate those actions.” It’s almost certain lawyers will use McGuire’s execution to challenge Ohio’s plans to put a condemned Cleveland-area killer to death in March.
Prison officials gave McGuire intravenous doses of two drugs, the sedative midazolam and the painkiller hydromorphone. The method was adopted after supplies of a previously used drug dried up because the manufacturer declared it off limits for capital punishment. McGuire’s lawyers had attempted last week to block his execution, warning that the untried method could lead to a medical phenomenon known as “air hunger” and could cause him to suffer “agony and terror” while struggling to catch his breath.
An attorney for the state of Ohio argued that while the U.S. Constitution bans cruel and unusual punishment, “you’re not entitled to a pain-free execution.” U.S. District Judge Gregory Frost sided with the state. But at the request of McGuire’s lawyers, he ordered officials to photograph and preserve the drug vials, packaging and syringes.
After McGuire was put to death, his attorney called on Republican Gov. John Kasich to impose a moratorium on executions, as did a state anti-death penalty group. The execution is also likely to echo across the country as other states contemplate new drug methods, said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment. “Judges will now realize that the warnings being raised about these untried procedures are not just false alarms,” he said in an email. “States will now have more of a burden to show that they are using a well-thought-out best practice.”
"State executes murderer Dennis McGuire, marking first use of new blend of drugs for lethal injection," by Robert Higgs (January 16, 2014 at 10:58 AM)
COLUMBUS, Ohio – Dennis McGuire, a murderer convicted of raping, choking and stabbing a 22-year-old woman, was executed Thursday, becoming the first man the state put to death using its new cocktail of drugs for lethal injection. McGuire, 53, was pronounced dead at 10:53 a.m. at the Southern Ohio Correctional Institute in Lucasville, according to the Ohio Department of Rehabilitation and Correction. He was sentenced to death for murdering 22-year-old Joy Stewart in 1989 in Preble County. Stewart was newly married and about 30 weeks pregnant. He acknowledged he was responsible for the murder last month in a letter to Gov. John Kasich two days before his clemency hearing. Kasich later accepted the recommendation of the Ohio Parole Board, rejecting clemency for McGuire.
This was the first execution in the country that used a new and untried lethal-injection cocktail involving midazolam, a sedative, and hydromorphone, a morphine derivative. McGuire appeared to gasp several times during his execution, according to a witness account. He made several loud snorting or snoring sounds during the more than 15 minutes it appeared to take him to die. It was one of the longest executions since Ohio resumed capital punishment in 1999, Associated Press reported.
McGuire's manner of death was quickly criticized. The group, Ohioans to Stop Executions, called for a moratorium on executions in the state. "Today's execution shines the spotlight on the impossibility of executing people in a humane way," said Kevin Werner, the group's executive director in a news release.
Meanwhile, attorney Jon Paul Rion said he will hold a news conference in Dayton Friday morning, at which he will announce he intends to file a lawsuit against the state for cruel and unusual punishment on behalf of McGuire's son and daughter. Rion said he will seek an injunction to stop use of the new procedure. Ohio was forced to seek new alternatives for lethal injection because of a shortage of pentobarbital that was the result of a European manufacturers’ reluctance to sell the drug for executions.
The state announced the new method in October and had planned to use it for the execution of Ronald Phillips, 40, who was scheduled to die in November for killing a 3-year-old girl. Kasich delayed Phillips execution, though, to allow time to study if the state could meet Phillips’ request to donate his organs. McGuire’s lawyers had sought to delay his execution, arguing in court against use of the new method. But a federal court this week rejected that plea
On Wednesday, McGuire had his last meal, which included roast beef, fried chicken and fried potatoes, the AP said. McGuire also had emotional visits with family members, including his son and daughter, Wednesday night and again Thursday. A spokeswoman for the state told the AP that a medical check of McGuire's veins found them in good shape for the intravenous injection of the lethal drugs.
Joy Stewart was last seen alive on February 11, 1989. That morning, she had breakfast with her neighbors between 9 and 10. She went there alone that morning because her husband, Kenny Stewart, a truck driver, worked that day from approximately 7:00 a.m. to 5:00 p.m. After breakfast, Joy went to visit Juanita Deaton, the mother of her friend Chris Deaton. Mrs. Deaton and her son lived next to each other in a duplex in West Alexandria. McGuire had been hired by Chris Deaton to clean the ice out of his gutters that day. According to Chris, McGuire started around 9 or 10 a.m., and finished around noon. Mrs. Deaton testified that Joy arrived at around 9:30 or 10:00, while McGuire was working. Mrs. Deaton saw Joy talking to two unidentified males in a dark-colored car before she left.
As Joy was leaving, she told Mrs. Deaton that “she was going to catch a ride somewhere,” although Mrs. Deaton did not actually see Joy leave in the car. Mrs. Deaton was unsure whether McGuire was one of the men in the car. A few minutes later, however, Mrs. Deaton asked whether McGuire had finished working on the gutters, and her son stated that McGuire had been paid and left. Jerry Richardson, McGuire’s brother-in-law, testified that McGuire later came over to his house that afternoon. While they were in Richardson’s garage, Joy came in and said she wanted some marijuana. Richardson further testified that McGuire offered to get her some, and the two left in McGuire’s car.
The following day, February 12, two hikers found the body of Joy Stewart in some woods near Bantas Creek. The front of her shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a “blood wipe mark” on her right arm. The body was taken to the Montgomery County Coroner’s Office, where an autopsy was performed. The autopsy revealed that Joy had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that Joy was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to “how soft and moveable the tissues are in the neck.”
The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of Joy’s shirt. The coroner’s office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time “because the environment is fairly hostile for sperm, and a bowel movement usually will purge the rectum of any sperm.”
Investigator David Lindloff of the Preble County Prosecutor’s Office investigated the murder, but to no immediate avail. However, in December 1989, Lindloff was notified that McGuire wanted to talk to him about information concerning a murder in Preble County. McGuire was in jail at the time on an unrelated offense and told a corrections officer that he needed to talk to Investigator Lindloff and Deputy Swihart. Joseph Goodwin, the corrections officer McGuire initially talked to, took him to a private room to talk, where McGuire told him that he knew who had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire’s brother-in-law, had killed Joy with a knife, and he could lead investigators to it. McGuire explained to Officer Goodwin that Richardson had wanted to have sex with Joy, but she had refused. McGuire claimed that Richardson then pulled a knife on her, and forced her to have oral sex with him. McGuire then said Richardson anally sodomized her because he “couldn’t have regular sex with her because she was pregnant.” He also said Richardson stabbed her “in the shoulder bone” and “cut her throat.”
Based on these details, Goodwin contacted Investigator Lindloff, who talked to McGuire on December 22, 1989. McGuire told Lindloff that Richardson committed the murder, that he stabbed Joy twice in the neck, and that “the first time it didn’t go in. He pulled the knife back out and stuck her again.” Lindloff was interested, since the fact that Joy had been stabbed twice in the neck and anally sodomized had not been revealed to the public at that time. McGuire also described in detail the area where Joy’s body had been found. McGuire then led Lindloff and deputies to the murder weapon, on a local farm where he and Richardson had occasionally worked. McGuire led the officers to the hayloft and showed them where a knife was hidden behind a beam. A subsequent audio-taped interview by Deputy Swihart elicited further details from McGuire. McGuire claimed that Richardson choked Joy before stabbing her and wiped his bloody hands off on her, both of which actions were consistent with the state of Joy’s body at the crime scene. Again, Swihart felt that these details were significant, since they had never become a matter of public knowledge. Furthermore, McGuire stated that he was pretty sure that Richardson was driving his mother’s blue Ford Escort the day of the murder. However, Richardson’s mother later testified at trial that she had traded that car in 1988, a year before the murder, and Richardson did not have access to her car on the day of the murder, since she had driven it to work.
While in prison on December 24, 1989, McGuire received a visit from his childhood friend Shawn Baird. At the time, McGuire told Baird that he knew about a murder that happened in Preble County in February. When Baird asked who did it, McGuire stated that he and Jerry Richardson had done it, and he was going to blame it all on Jerry. A fellow inmate at the Preble County Jail, Jack Stapleton, testified that he had overheard a conversation between McGuire and another inmate, in which McGuire claimed that he had seen his brother-in-law rape and murder Joy. However, at one point, McGuire apparently slipped and implicated himself when telling the story. While describing the murder, Stapleton testified that McGuire “had his hand like this describing, telling the guy how she was killed. And he said said 'I' — he goes 'I mean he. Stabbed her like this. Hit a bone. It didn’t kill her. So he stabbed her again.'” McGuire was later transferred to Madison Correctional Institute. An inmate there, Willie Reeves, testified that McGuire told him that while he was cleaning gutters, Joy showed up asking whether McGuire had any marijuana. McGuire offered to share some with her, and they left in his car. At one point McGuire asked whether she wanted to have sex, and she refused. McGuire then told Reeves he did it anyway. He then explained that because she was so pregnant, it was difficult to engage in sex with her, so instead he anally sodomized her. Joy then became “hysterical,” which made McGuire nervous. He ended up killing Joy for fear that he would go to jail for raping a pregnant woman.
In June 1992, the Montgomery County Coroner’s Office sent the vaginal, anal, and oral swabs collected from Joy’s body, along with a cutting from her underpants, to Forensic Science Associates, a private laboratory, for DNA testing using the PCR technique. A forensic scientist there compared DNA extracted from the samples with blood samples taken from Dennis McGuire, Jerry Richardson, Joy Stewart, and Joy’s husband, Kenny Stewart, who died in 1992. The scientist determined that McGuire could not be eliminated as a source of the sperm. Kenny Stewart and Richardson, however, could be eliminated, unless there were two sperm sources, e.g., multiple assailants. This was because the sperm analyzed contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2. McGuire’s DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and the victim’s DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified that the trace amount of 1.1, 2 could have resulted either from Joy’s epithelial cells taken in the swab, or from a secondary sperm source. The sperm DNA analyzed had characteristics that appear in about one in one hundred nineteen males in the white population.
On December 22, 1993, McGuire was indicted on one count of aggravated murder, with one felony-murder specification for rape and was also indicted on two counts of rape (vaginal and anal) and one count of kidnapping. On December 8, 1994, the jury returned a guilty verdict on the aggravated murder and specification charge. McGuire was also convicted of anal rape and kidnapping. After a sentencing hearing, the jury recommended a sentence of death for the aggravated murder. The trial judge sentenced McGuire to death, and the court of appeals affirmed.
Ohio Death Row: Mcguire News & Blog
Contact: Governor Kasich
Riffe Center, 30th Floor 77
South High Street
Columbus, OH 43215-6108
Phone: (614) 466-3555
Fax: (614) 466-9354
Ohio Attorney General - 2012 Capital Crimes Annual Report
Ohio Executions 1999-2013 from Cleveland.Com
List of individuals executed in Ohio
A list of individuals convicted of murder that have been executed by the U.S. State of Ohio since 1976. All were executed by lethal injection.
1. Wilford Berry, Jr. (19 February 1999) Charles Mitroff
2. Jay D. Scott (14 June 2001) Vinnie M. Price
3. John William Byrd, Jr. (19 February 2002) Monte Tewksbury
4. Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
5. Robert Anthony Buell (24 September 2002) Krista Lea Harrison
6. Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
7. David M. Brewer (April 29, 2003) Sherry Byrne
8. Ernest Martin (June 18, 2003) Robert Robinson
9. Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
10. John Glenn Roe (3 February 2004) Donette Crawford
11. William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
12. William G. Zuern, Jr. (8 June 2004) Phillip Pence
13. Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
14. Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
15. Adremy Dennis (October 13, 2004) Kurt Kyle
16. William Smith (March 8, 2005) Mary Bradford
17. Herman Dale Ashworth (27 September 2005) Daniel L. Baker
18. William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
19. John R. Hicks (29 November 2005) Brandy Green
20. Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
21. Joseph L. Clark (4 May 2006) David Manning
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
41. Michael Benge (October 6, 2010) Judith Gabbard
42. Frank G. Spisak Jr. (February 17, 2011) Rev. Horace Rickerson, Timothy Sheehan, Brian Warford
43. Johnnie R. Baston (March 10, 2011) Chong Mah
44. Clarence Carter (April 12, 2011) Johnny Allen
45. Daniel Lee Bedford (May 17, 2011) Gwen Toepfert, John Smith
46. Reginald Brooks (November 15, 2011 Reginald Brooks Jr., Vaughn Brooks, Niarchos Brooks.
47. Mark Wayne Wiles (April 18, 2012) Mark Klima
48. Donald Palmer (September 20, 2012) Charles Sponhaltz and Steven Vargo
49. Brett Xavier Hartman (November 13, 2012) Winda Snipes
50. Frederick Treesh (March 6, 2013) Henry Dupree
51. Steven T. Smith (May 1, 2013 1998 Autumn Carter
52. Harry Mitts Jr. (September 25, 2013) John Bryant and Dennis Glivar
53. Dennis McGuire (January 16, 2014) Joy Stewart
Ohio Department of Rehabilitation and Correction (Clemency Report)
IN RE: Dennis McGuire, CCI #A305-892
STATE OF OHIO ADULT PAROLE AUTHORITY
CRIME, CONVICTION: Aggravated Murder, Rape
DATE, PLACE OF CRIME: February 11, 1989 in Eaton, Ohio
COUNTY: Preble
CASE NUMBER: 93CR007192
VICTIM: Joy Stewart – deceased
INDICTMENT: Count 1: Aggravated Murder with Death Specification, Count 2: Rape, Count 3: Rape, Count 4: Kidnapping
TRIAL: Found guilty by jury of all counts.
DATE OF SENTENCE: December 23, 1994
SENTENCE: Count 1: DEATH (93CR007192) Count 3: 10-25 years
ADMITTED TO INSTITUTION: First admitted on April 24, 1990 under inmate number A225-717 for prior convictions (see prior record below).Turned over to new inmate number A305-892 on December 23, 1994 as a result of the death sentence.
JAIL TIME CREDIT: 0 days (93CR007192—Death Sentence) 155 days (88CR6557—prior conviction)
TIME SERVED: 276 months (does not include jail time credit) 227 months since the death sentence.
AGE AT ADMISSION: Age 30 at time of original admission; Age 34 at the time the death sentence.
CURRENT AGE: 53 years old
DATE OF BIRTH: February 10, 1960
JUDGE: Honorable David N. Abruzzo
PROSECUTING ATTORNEY: Rebecca J. Ferguson
FOREWORD: The Ohio Parole Board initiated a clemency proceeding in the case of Dennis McGuire, A305-892, pursuant to Sections 2967.03 and 2967.07 of the Ohio Revised Code and Parole Board Policy #105-PBD-01. McGuire declined to be interviewed by the Parole Board. A clemency hearing was then held on December 12, 2013 with eleven (11) members of the Ohio Parole Board participating. Arguments in support of and in opposition to clemency were presented. The Parole Board considered all of the written submissions, arguments, and information disseminated by presenters at the hearing, as well as the judicial decisions. The Parole Board deliberated upon the propriety of clemency in this case. With eleven (11) members participating, the Board voted eleven (11) to zero (0) to provide an unfavorable recommendation for clemency to the Honorable John R. Kasich, Governor of the State of Ohio.
DETAILS OF THE INSTANT OFFENSE (CR93007192):
The following account of the instant offense is taken from the Ohio Supreme Court’s opinion, issued on December 10, 1997: Joy Stewart was last seen alive on February 11, 1989. That morning, she had breakfast with her neighbors between 9 and 10. She went there alone that morning because her husband, Kenny Stewart, a truck driver, worked that day from approximately 7:00 a.m. to 5:00 p.m. After breakfast, Joy went to visit Juanita Deaton, the mother of her friend Chris Deaton. Mrs. Deaton and her son lived next to each other in a duplex in West Alexandria. McGuire had been hired by Chris Deaton to clean the ice out of his gutters that day. According to Chris, McGuire started around 9 or 10 a.m., and finished around noon. Mrs. Deaton testified that Joy arrived at around 9:30 or 10:00, while McGuire was working. Mrs. Deaton saw Joy talking to two unidentified males in a dark-colored car before she left. As Joy was leaving, she told Mrs. Deaton that “she was going to catch a ride somewhere,” although Mrs. Deaton did not actually see Joy leave in the car. Mrs. Deaton was unsure whether McGuire was one of the men in the car. A few minutes later, however, Mrs. Deaton asked whether McGuire had finished working on the gutters, and her son stated that McGuire had been paid and left. Jerry Richardson, McGuire’s brother-in-law, testified that McGuire later came over to his house that afternoon. While they were in Richardson’s garage, Joy came in and said she wanted some marijuana. Richardson further testified that McGuire offered to get her some, and the two left in McGuire’s car. The following day, February 12, two hikers found the body of Joy Stewart in some woods near Bantas Creek. The front of her shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a “blood wipe mark” on her right arm. The body was taken to the Montgomery County Coroner’s Office, where an autopsy was performed. The autopsy revealed that Joy had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that Joy was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to “how soft and moveable the tissues are in the neck.” The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of Joy’s shirt. The coroner’s office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time “because the environment is fairly hostile for sperm, and a bowel movement usually will purge the rectum of any sperm.” Investigator David Lindloff of the Preble County Prosecutor’s Office investigated the murder, but to no immediate avail. However, in December 1989, Lindloff was notified that McGuire wanted to talk to him about information concerning a murder in Preble County. McGuire was in jail at the time on an unrelated offense and told a corrections officer that he needed to talk to Investigator Lindloff and Deputy Swihart.
Joseph Goodwin, the corrections officer McGuire initially talked to, took appellant to a private room to talk, where McGuire told him that he knew who had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire’s brother-in-law, had killed Joy with a knife, and appellant could lead investigators to it. McGuire explained to Officer Goodwin that Richardson had wanted to have sex with Joy, but she had refused. McGuire claimed that Richardson then pulled a knife on her, and forced her to have oral sex with him. McGuire then said Richardson anally sodomized her because he “couldn’t have regular sex with her because she was pregnant.” He also said Richardson stabbed her “in the shoulder bone” and “cut her throat.” Based on these details, Goodwin contacted Investigator Lindloff, who talked to McGuire on December 22, 1989. McGuire told Lindloff that Richardson committed the murder, that he stabbed Joy twice in the neck, and that “the first time it didn’t go in. He pulled the knife back out and stuck her again.” Lindloff was interested, since the fact that Joy had been stabbed twice in the neck and anally sodomized had not been revealed to the public at that time.
The appellant also described in detail the area where Joy’s body had been found. McGuire then led Lindloff and deputies to the murder weapon, on a local farm where he and Richardson had occasionally worked. McGuire led the officers to the hayloft and showed them where a knife was hidden behind a beam. A subsequent audio taped interview by Deputy Swihart elicited further details from McGuire. McGuire claimed that Richardson choked Joy before stabbing her and wiped his bloody hands off on her, both of which actions were consistent with the state of Joy’s body at the crime scene. Again, Swihart felt that these details were significant, since they had never become a matter of public knowledge. Furthermore, McGuire stated that he was pretty sure that Richardson was driving his mother’s blue Ford Escort the day of the murder. However, Richardson’s mother later testified at trial that she had traded that car in 1988, a year before the murder, and Richardson did not have access to her car on the day of the murder, since she had driven it to work.
While in prison on December 24, 1989, McGuire received a visit from his childhood friend Shawn Baird. At the time, McGuire told Baird that he knew about a murder that happened in Preble County in February. When Baird asked who did it, the appellant stated that he and Jerry Richardson had done it, and he was going to blame it all on Jerry. A fellow inmate at the Preble County Jail, Jack Stapleton, testified that he had overheard a conversation between McGuire and another inmate, in which McGuire claimed that he had seen his brother-in-law rape and murder Joy. However, at one point, McGuire apparently slipped and implicated himself when telling the story. While describing the murder, Stapleton testified that McGuire “had his hand like this describing [sic], telling the guy how she was killed. And he said I – he goes I mean he. Stabbed her like this. Hit a bone. It didn’t kill her. So he stabbed her again.” McGuire was later transferred to Madison Correctional Institute. An inmate there, Willie Reeves, testified that McGuire told him that while he was cleaning gutters, Joy showed up asking whether McGuire had any marijuana. McGuire offered to share some with her, and they left in his car. At one point McGuire asked whether she wanted to have sex, and she refused. McGuire then told Reeves he did it anyway. He then explained that because she was so pregnant, it was difficult to engage in sex with her, so instead he anally sodomized her. Joy then became “hysterical” which made McGuire nervous. He ended up killing Joy for fear that he would go to jail for raping a pregnant woman.
In June 1992, the Montgomery County Coroner’s Office sent the vaginal, anal, and oral swabs collected from Joy’s body, along with a cutting from her underpants, to Forensic Science Associates, a private laboratory, for DNA testing using the PCR technique. A forensic scientist there compared DNA extracted from the samples with blood samples taken from Dennis McGuire, Jerry Richardson, Joy Stewart, and Joy’s husband, Kenny Stewart. The scientist determined that McGuire could not be eliminated as a source of the sperm. Kenny Stewart and Richardson, however, could be eliminated, unless there were two sperm sources, e.g., multiple assailants. This was because the sperm analyzed contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2. McGuire’s DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and the victim’s DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified that the trace amount of 1.1, 2 could have resulted either from Joy’s epithelial cells taken in the swab, or from a secondary sperm source. The sperm DNA analyzed had characteristics that appear in about one in one hundred nineteen males in the white population. The FBI crime laboratory had tried to perform testing in 1989. However, the FBI at the time used the RFLP technique, which requires a greater amount of genetic material. The FBI was unable to extract sufficient DNA from the sperm cells for RFLP testing.
On December 22, 1993, McGuire was indicted on one count of aggravated murder under R.C. 2903.01(B), with one felony-murder specification for rape under R.C. 2929.04(A)(7). McGuire was also indicted on two counts of rape (vaginal and anal) and one count of kidnapping. On December 8, 1994, the jury returned a guilty verdict on the aggravated murder and specification charge. McGuire was also convicted of anal rape and kidnapping (merged for sentencing). After a sentencing hearing, the jury recommended a sentence of death for the aggravated murder. The trial judge sentenced the appellant to death, and the court of appeals affirmed.
PRIOR RECORD
Juvenile Offenses: McGuire does not have a juvenile record.
Adult Offenses: McGuire has the following known adult arrest record:
9/27/80 Receiving Stolen Property Frankfort, KY 2 years probation (Age 20)
11/02/88 B&E (2cts) Eaton, OH 1/24/89: 4˝ years suspended (Age 28) Theft placed on probation
4/20/90: Probation revoked and sentence re-imposed
04/18/90 Felonious Assault Eaton, OH 4/20/90: 7-15 years concurrent with (Age 30) Abduction
12/22/93 Aggravated Murder Eaton, OH INSTANT OFFENSE (Age 33) Rape (Preble County) (93CR007192)
Institutional Adjustment: McGuire was originally admitted to the Ohio Department of Rehabilitation and Correction on April 24, 1990. His work assignment while incarcerated at the Orient Correctional Institution was as a Student. While incarcerated at the Warren Correctional Institution, McGuire’s work assignments included Porter and Food Service Worker. At the Madison Correctional Institution, McGuire was a Porter, Food Service Worker, and Student. Upon receiving his death sentence, McGuire was briefly transferred to the Southern Ohio Correctional Facility prior to being relocated to the Mansfield Correctional Institution. While at the Mansfield Correctional Institution, McGuire’s work assignments included Artist, Student, Material Handler 2, Barber, and Recreation Worker. McGuire was then transferred to the Oakwood Correctional Facility for a brief stay before being returned to the Mansfield Correctional Institution.
Presently, McGuire is a Barber at the Chillicothe Correctional Institution. No program or community service completion was noted. McGuire is enrolled in Adult Basic Education classes. McGuire has not received his GED while incarcerated. According to the Post-Sentence Background Investigation, McGuire reported that he completed the 9th grade before leaving school at the age of 16 to enter the workforce, supporting himself and helping to support his family. Since his admission, McGuire has never been placed in Disciplinary Control. McGuire has received the following five (5) conduct reports that did not result in placement in disciplinary control.
APPLICANT’S STATEMENT: McGuire declined to be interviewed prior to the clemency hearing.
ARGUMENTS IN SUPPORT OF CLEMENCY:
At the hearing held on December 12, 2013, McGuire’s attorney, Rob Lowe, presented arguments in support of clemency supplementing the written application previously received. Before presenting arguments in support of clemency, Lowe briefly addressed a letter sent by McGuire to the Governor two days prior to the clemency hearing. In that letter, McGuire for the first time admits to killing the victim, Joy Stewart. In his letter, McGuire stated that he and Stewart had been having an extramarital affair. McGuire stated that he killed Stewart following a heated argument with her, during which she demanded that McGuire leave his wife and children. In the letter, McGuire stated that he “lost control” during the argument. He writes, “the next thing I knew I had taken her life.”
Lowe recounted how McGuire wrote the letter following a conversation between McGuire and his attorneys, during which McGuire informed his attorneys that he wanted to confess to the Parole Board that he alone had killed Stewart. McGuire’s attorneys advised him that it would be best for the Board and the Governor to hear that confession in McGuire’s own words. Lowe indicated that McGuire’s letter was written in his own words, that no one on his legal team assisted in writing the letter, and that the letter was forwarded to the Board unedited. Lowe further indicated that it was not easy for McGuire to write the letter. At the time of the clemency hearing, Lowe and his co-counsel had yet to have the opportunity to speak with McGuire regarding any of the specific content in his letter, including his allegation that he and Stewart were involved in an extramarital affair. Lowe acknowledged that McGuire’s confession comes late. Lowe stated that although it is unfortunate that it has taken so long for McGuire to accept responsibility, he does accept responsibility for Stewart’s death and is remorseful. According to Lowe, McGuire did not confess until now because he was afraid that his mother and children would abandon him if they knew the truth. McGuire’s upbringing, background, and limitations negatively affected his ability to accept responsibility, Lowe argued.
Lowe stated that it is not his intention to retry McGuire’s crime or to contest his guilt. Instead, McGuire deserves clemency because his trial attorneys failed him by not fully investigating his upbringing and describing it for the jury during the sentencing phase of trial. The attorneys who represented him during his initial post-conviction appeals likewise failed to explore and develop that additional mitigation evidence. McGuire’s upbringing negatively impacted his neuropsychological development, substantially impairing his executive functioning, and mitigating his offense, Lowe argued. The clemency proceeding, Lowe urged, is the last opportunity to consider this previously overlooked mitigation evidence.
The Mitigation Evidence Presented by Trial Counsel
Lowe described the testimony that was presented by McGuire’s attorneys during the sentencing, or mitigation, phase of McGuire’s trial. McGuire’s trial counsel presented three fact witnesses: McGuire’s mother, Doris Newton; his half sister, Tonya Konz Cross, with whom he shares the same mother; and a Department of Rehabilitation and Correction employee named Mary Beedy. Lowe noted that all of that testimony collectively totaled just 88 pages of transcript. Mary Beedy was employed at the Marion Correctional Institution while McGuire was housed there. She testified that McGuire was a good inmate, Lowe related. Newton’s testimony comprised just 15 transcript pages, Lowe continued. Newton testified that she had been married six times; that McGuire did not grow up in the same household as his siblings; that McGuire witnessed her being abused by her several husbands; that McGuire was a poor student; that McGuire was functioning at a second grade level in the eighth grade; that McGuire was born tongue tied; and that McGuire raised himself from an early age. The testimony of McGuire’s half sister, Tonya Cross, comprised just fourteen pages, Lowe noted. Cross testified that, growing up, McGuire was exposed to numerous different men to whom his mother was married through the years. She testified that McGuire was mentally abused by his various stepfathers. Lastly, Cross testified that it was McGuire’s responsibility to seek help for his mother when his mother was being beaten by those men.
At trial, McGuire gave an unsworn statement. McGuire stated that he grew up quickly. His mother’s second husband, Don Konz, was the only father figure in his life. McGuire further stated that he witnessed several of his stepfathers beat his mother. At age nine, McGuire was using drugs and hanging out with 18 year olds. There was racial tension at his schools and he was repeatedly beaten up. McGuire stated at trial that he had to take his driver’s license exam orally because he could not read or write. Lowe noted that McGuire’s trial attorneys presented testimony from a psychologist, Phyllis Kuehnl, who spent only two hours with McGuire in preparation for her testimony. She reviewed some of McGuire’s school records and she briefly spoke with McGuire’s half sister, Tonya Cross, about her relationship with McGuire and his relationship with his children. Kuehnl testified that McGuire did not experience early familial bonding; that he did not have fatherly guidance growing up; and that he did not feel safe in his childhood home, all of which negatively affected his development. Lowe argued that, despite the paltry mitigation evidence presented at trial, the death sentence was not a foregone conclusion. Lowe noted that, at one point during the jury’s lengthy sentencing deliberations, the jury sent a note to the judge asking what will happen if they continue to vote 11 to 1 on a possible sentence.
The Mitigation Evidence that Trial Counsel Failed to Uncover
According to Lowe, a reasonable mitigation investigation by McGuire’s trial counsel would have uncovered the following risk factors that negatively affected McGuire’s development. First, the manner in which McGuire’s biological parents were raised shaped how they, in turn, raised McGuire. Second, McGuire did not receive proper prenatal and postnatal care. Third, McGuire was mentally and physically abused throughout his childhood. Fourth, McGuire was sexually abused as a child. Fifth, McGuire was given no structure or stability as a child. All of those risk factors, Lowe argued, negatively affected his brain during its most critical stage of development. Lowe described the upbringing of McGuire’s parents, Doris Newton and Genis McGuire Sr., as one devoid of affection. Newton’s parents showed their daughter little affection, only kissing her on the hand and never on the face. They would not allow Newton or her siblings to sit on their laps. Newton’s parents used corporal punishment, once whipping Newton with a belt when she was 16. Genis Sr.’s parents had neither running water nor heat in their home. The family used an outhouse and kerosene. Genis Sr. and the other members of the McGuire family loved to fight. Genis Sr. would go to bars seeking fights with the biggest patrons that he could find. Genis Sr. quit school when he was in the third grade and could neither read nor write. Newton had to assist Genis Sr. in completing his job applications. While Genis Sr. was employed as a deliveryman, Newton would accompany him to assist in reading the street signs. Genis Sr. would frequently lose jobs, often for fighting. By the time Newton was 20, she and Genis Sr. had borne three children, including McGuire, his younger sister Mary Beth, and his older brother, Genis Jr. This was relevant information, Lowe insisted, as sons born to teenage mothers are 2.7 times more likely to end up in prison than sons born to older mothers. Not surprisingly, Lowe argued, both McGuire and his brother, Genis Jr., are currently incarcerated.
According to Lowe, McGuire received inadequate care from the moment that he was conceived. Newton received very little prenatal care, going hungry throughout her pregnancy and finding sustenance in what little Genis Sr. could steal or in the squirrels and rabbits that he hunted. Though the jury was informed that McGuire was born with the umbilical cord wrapped around his neck, the jury was not told that McGuire was born without a doctor present. Instead, McGuire’s paternal grandmother assisted with his birth. McGuire’s situation did not improve from there. Because there was no money to purchase milk for McGuire, McGuire was often given sugar water as a baby. Newton did not know how to breast feed McGuire. Over time, McGuire developed a distended stomach due to malnourishment. While the jury was informed that McGuire was ridiculed as a child for being fat, the jury was never told the medical basis for his bloated appearance. As a result, the jury was left with the mistaken impression that McGuire was simply fat and lazy. Lowe noted that poor nutrition affects childhood development, leads to behavior disorders, and increases the likelihood of the child developing antisocial personality disorders.
According to Lowe, McGuire experienced mental and physical abuse during his most formidable developmental years. Genis Sr., whom Lowe described as a very violent person, would hit McGuire with blocks of wood and a broomstick. McGuire continued to be abused after his mother and father divorced. After divorcing Genis Sr., McGuire’s mother married Don Konz, who would firmly poke his finger into McGuire’s forehead and call him “stupid” when McGuire disappointed Konz by, for example, being unable to tie his own shoes. Though McGuire and Konz are now close, it does not change the fact that Konz mistreated McGuire during McGuire’s developmental years, Lowe argued. The abuse did not end with Konz, Lowe continued. McGuire’s mother later married a man named Danny Rainey. Rainey, who had earned a black belt in karate, would beat McGuire with wooden spoons and a belt. Similarly, another stepfather, Jerry Miller, mentally abused McGuire, yelling at McGuire for such insignificant acts as sitting on the carpet and flattening the pile. Both McGuire’s mother and his sister, Mary Beth, would also beat McGuire. On several occasions, the abuse caused McGuire to run away, sometimes to the home of his father, Genis Sr. The jury, Lowe noted, never heard about the abuse to which McGuire was subjected as a child.
In addition, McGuire witnessed extreme familial violence in which he was not directly involved. For example, he once witnessed his mother fire a gun at one of his stepfathers. Lowe acknowledged that McGuire’s mother and half sister denied at trial that McGuire was physically abused. That testimony was false, Lowe insisted. According to Lowe, it was incumbent upon McGuire’s trial counsel to uncover the truth behind those lies because studies have shown that abuse in the home, whether experienced or merely witnessed, has behavioral, emotional, and social ramifications for the children residing in it. It results in lower cognitive functioning, poor school performance, and poor problem solving skills. A violent upbringing is also correlated with higher levels of depression as well as increased tolerance for, and use of, violence in relationships. Those subject to abuse have an elevated risk for being arrested for violent crimes, Lowe continued. It leads to impaired functioning of those parts of the brain that regulate negative emotion. Lowe next explained that McGuire has alleged that he was sexually abused as a child, additional mitigation that the jury never heard, including an incident at age 10 or 11 when an adult male rubbed against him in a sexual manner during a bike ride, and another incident at age 12 or 13, when McGuire was orally and anally raped by older males in the neighborhood. McGuire’s mother knew about the abuse but swept it under the rug. Lowe also argued that there was inappropriate sexual behavior within the family unit, including uncles who would grab McGuire by the genitals and ask him if his penis was growing and how it was doing and who also solicited McGuire for anal sex. During a family sleepover, an uncle once kissed McGuire’s sister, Mary Beth, inappropriately on the lips, Lowe alleged. He noted that this kind of sexual deviancy has a negative impact on a child’s development, yet the jury was never made aware of it.
Lowe argued that McGuire was provided neither structure nor security as a child. He received no guidance from his father or the revolving door of stepfathers that entered and exited his life, Lowe argued. In short, McGuire had no positive role models. In addition to constantly changing the familial makeup of the home, McGuire’s mother was constantly uprooting him, leaving him with no structure. McGuire changed schools frequently, sometimes experiencing racial conflict in those schools, resulting in his involvement in fights. He often skipped school to avoid being beaten up. Lowe shared a quote from McGuire’s half sister, Tonya Cross, who said in 1999 that she was glad that, after divorcing her father, Don Konz, her mother left her to live with Konz. She described how her mother was constantly moving and how that instability would have negatively affected her life. Cross noted that she was able to finish school and stay out of trouble. Lowe observed that Cross had the structure, stability, and guidance that McGuire never received. Those things, Lowe argued, have a significant, positive impact on the development of a child’s brain. Genis McGuire Jr., McGuire’s older brother, appeared via videoconference from the Chillicothe Correctional Institution (CCI). Genis Jr. is currently incarcerated on a conviction out of Warren County, Ohio for complicity to commit aggravated murder for his role in the stabbing and killing of a female convenience store clerk in 1995. Present with Genis Jr. at CCI was Ohio Public Defender Mitigation Specialist, Martha Phillips, who posed questions to Genis Jr. Genis Jr. introduced himself, described for the Board the various institutions in which he has been incarcerated, and noted that he has had only one report for institutional misconduct in 20 years of incarceration. Genis Jr. then proceeded to identify the various members of his immediate family, including McGuire, their siblings, and their half-siblings. He noted that his parents separated when he` was approximately four years old. After the separation, McGuire continued to live with their mother in Preble County while Genis Jr. resided primarily with their father and his new wife in Warren County. According to Genis Jr., his father, who felt lingering bitterness over the separation, resisted Genis Jr.’s efforts to visit his mother. Genis Jr. related how, on one occasion, after finally being permitted to spend the night with his mother, his mother went out on a date rather than stay at home with him.
Genis Jr. described his father as very high strung. There were good times with his father but also very bad times, Genis Jr. related. Genis Sr. had a bad temper and he was known around Warren County as a very dangerous man. Genis Sr. carried a pistol and brass knuckles. His reputation was so well known, Genis Jr. described, that older boys would want to hang out with Genis Jr. just for the perceived status it gave them to be associated, even indirectly, with his father. While his father worked and provided for his family, Genis Sr. was often getting into fights, putting him in frequent contact with the criminal justice system. Genis Sr. was on probation for 25 years straight, Genis Jr. described, and was once incarcerated for violating that probation. When Genis Sr. would become angry, he would physically abuse Genis Jr. Genis Jr. described how his father once whipped him with a jump rope. Sometimes Genis Sr. would hit Genis Jr. with his fists. Genis Jr. described how, to this day, he still experiences ringing in his ears as a result of those beatings. Genis Sr. viewed those beatings as a kind of rite of passage because Genis Sr.’s definition of manhood was being able to get up after being knocked down. Over time, Genis Jr. would attempt to avoid his father’s beatings by running away.
Genis Jr. noted that his father had been married four times and that all of those women experienced physical abuse similar to that inflicted upon Genis Jr. He recounted how his father would routinely whip and beat his wives in Genis Jr.’s presence. At least one of Genis Sr.’s wives was so terrified of Genis Sr. that she secretly sold the family home and fled. Genis Jr. described alcohol use as very prevalent in his family members’ lives. Genis Sr. drank heavily. Before separating, his mother and father would take him to bars rather than securing a babysitter for him, tying his stroller to the bar, Genis Jr. recalled. As Genis Jr. grew older, but before reaching legal drinking age, Genis Sr. would buy alcohol for him. In addition to abusing alcohol, Genis Sr. was addicted to Valium and pain pills. His pill addiction lasted well over ten years, Genis Jr. related. As Genis Jr. grew older, he too began abusing alcohol and using pills, though he always worked. Genis Jr. did not finish school, choosing instead to quit school and work with his father at a paper mill.
Genis Jr. described seeing his brother, McGuire, only sporadically as children because of the physical distance between them and their father’s reluctance to facilitate contact between the two households in which they lived. As the boys grew older and were able to arrange their own transportation to each other’s homes, they were able to see more of one another. Genis Jr. described his brother as a “good kid.” He noted that McGuire had a speech problem that resulted from having a tied tongue, which was eventually clipped. McGuire looked up to Genis Jr. and their father, Genis Jr. recounted. McGuire thought his father and older brother were tough and he wanted to be like them.
McGuire grew up in a permissive environment, without structure or rules, Genis Jr. described. At eight years old, McGuire would disappear for days at a time, no one knowing where he was. Like his older brother, McGuire did not finish school. In fact, none of the children in the family attended school very often. The children were largely allowed to attend school or not attend as they pleased. Not surprisingly, McGuire struggled in school on those occasions when he did attend, particularly in the areas of reading and writing, though McGuire was not “stupid,” Genis Jr. insisted. According to Genis Jr., McGuire drank a little growing up, used marijuana from time to time, but did not often use pills. One of their siblings used heroin, which indirectly resulted in her incarceration. Despite their misbehavior, he and his siblings, including McGuire, grew up knowing the difference between right and wrong, Genis Jr. stated. Genis Jr. described his mother as having very poor judgment when it came to men. He also described her as “clueless” when it comes to being a mother. She has never visited Genis Jr. in prison and has visited McGuire on death row only once during his incarceration. Her unwillingness to visit hurts McGuire deeply, Genis Jr. reported. Genis Jr. noted that their mother’s second husband, Don Konz, remains a positive influence in his brother’s life and his own. Genis Jr. and McGuire have a strong bond. Genis Jr. described how he is able to visit with his brother from time to time at CCI, even though they are not housed together. The visits are important to Genis Jr., motivating him to maintain his good conduct. Genis Jr. believes that the visits also mean a lot to McGuire. At one time, the two were both incarcerated at the Mansfield Correctional Institution (MANCI). Genis Jr. described how, when death row was being moved from MANCI to the Ohio State Penitentiary in Youngstown, McGuire slit his wrists in an attempt to remain incarcerated in the same prison as Genis Jr.
Despite their strong bond, McGuire and Genis Jr. have rarely spoken about McGuire’s crime. McGuire had always denied killing Stewart, Genis Jr. related. To Genis Jr.’s knowledge, McGuire’s recent written confession was the first time that his brother had ever confessed the crime. Genis Jr. has no knowledge as to whether McGuire and the victim were having an affair, as alleged in McGuire’s confession. Genis Jr. did relate, however, that he recalls McGuire and his wife already having been separated a month at the time of Stewart’s murder. Genis Jr. suggested that McGuire is now confessing to the crime because he is ashamed. Genis Jr. spoke briefly about McGuire’s trial, noting that he was never asked by McGuire’s attorneys to testify. Had he been asked, he would have testified. Genis Jr. concluded his presentation by expressing his wish that his brother’s life be spared. His brother is all that Genis Jr. has and he does not want to see him die.
Lowe next played a videotaped interview of McGuire’s mother, Doris Newton, which was recorded approximately two and one-half weeks prior to the clemency hearing. Newton described how she married McGuire’s father, Genis Sr., when she was only 15 years old. According to Newton, her in-laws were a very different kind of family from the one in which she was raised. She described the McGuires as the “Beverly Hillbillies.” The McGuires had very specific, old fashioned ideas about what was and was not appropriate female behavior. Short sleeve blouses, for instance, were prohibited by her in-laws. Her in-laws’ home had no running water and, therefore, no indoor bathroom. The McGuires relied upon an old wood stove for heat. According to Newton, the McGuire family loved to fight. Her in-laws would get into fights seemingly everywhere they went. Newton recounted how, if you were to ask the McGuires, they were never the instigators of those fights, even when they were. After instigating a fight, the McGuires would go so far as to cut themselves with knives and then tell police that the person with whom they instigated the fight had attacked them. Newton described how Genis Sr. could neither read nor write, resulting in her having to help her husband complete job applications and assist him on job deliveries by reading street signs to him. Newton described how she was eating quite poorly while pregnant with McGuire. At that time, the family was sustaining itself on squirrel and rabbit that Genis Sr. hunted. After McGuire was born, there was no milk available for him so he was instead given sugar water. McGuire was malnourished throughout his childhood, resulting in a distended stomach that lasted until McGuire was nine or ten years old.
Newton recounted that McGuire routinely witnessed his father physically abusing her. During the most severe of those beatings, Newton would give McGuire a look that would be his signal to go and seek help. According to Newton, Genis Sr. also abused McGuire and his brother, Genis Jr. He would knock McGuire down with a broom and would push him down with his hands. He once beat Genis Jr. for soiling his pants. Newton described her second husband, Don Konz, as verbally abusive toward McGuire, routinely calling him “stupid.” Konz would forcefully poke McGuire with his finger while insulting the boy. Like his father, McGuire could neither read nor write. McGuire was tongue tied, making it difficult for him to speak. Because Newton was frequently moving the children, they attended many different schools, all of which McGuire hated. McGuire was unable to understand his school work and was unable to do math. By the time he was in the eighth grade, McGuire was doing only second grade coursework. Newton cannot understand why the schools would advance McGuire through the grade levels despite his poor comprehension of the coursework. It is only recently that McGuire has developed the ability to comprehend what he is learning, Newton related. Newton concluded by stating that she loves her son with all of her heart. McGuire was Newton’s protector when she was being beaten by his father. That resulted in a special bond between them. She asked that her son be allowed to live.
McGuire’s Upbringing Negatively Affected His Brain’s Development
Lowe contended that the risk factors inherent in McGuire’s violent, unstable, and chaotic upbringing negatively impaired the development of McGuire’s brain, making him prone to impulsive behavior. In support of that argument, Lowe offered a presentation from a retired psychologist named Kathleen Burch, who appeared in person for the clemency hearing. Burch related that her area of practice was neuropsychology, which is a discipline within the larger discipline of psychology that draws upon both neurology and psychology. Burch examined McGuire twice, once in 1998 and again in 2002. In her opinion, McGuire suffers from neuropsychological deficits that negatively affect his executive functioning and his ability to control his behavior. Burch’s opinion is based upon a number of objective, standardized tests that she administered to McGuire. Those tests revealed that McGuire has language deficits, resulting in significant difficulty performing tasks of a verbal nature. In addition, he has difficulty performing tasks of an executive nature; that is, those tasks that require appropriately and effectively controlling, monitoring, and regulating one’s behavior. Those deficits suggest impairment to the frontal lobe of McGuire’s brain. Further personality testing uncovered paranoid features, impulsiveness, immaturity, chronic maladjustment, a tendency toward substance abuse, low morale, and other negative features. Burch indicated that she is confident in the validity of her test results and her specific diagnosis of neuropsychological impairment in executive functioning. Burch pointed out that the results are consistent with the manner in which McGuire presents, his history, and the results of all of the different psychological testing that has been performed on McGuire. Moreover, absent a stroke or other significant neurological event, one would expect those test results to remain static over time. A person with the kinds of neuropsychological deficits that McGuire exhibits is unreflective and impulsive in character, Burch opined. They are “doers” more than “thinkers.” Neuropsychological deficits such as those exhibited by McGuire are developmental in character. As a result, they are not psychological features that one chooses to exhibit.
McGuire’s deficits are the product of the chaotic environment in which he was raised, Burch explained. McGuire was raised in an unstable home environment with unstable parenting. His mother was frequently absent, both physically and emotionally. Burch stated that McGuire witnessed, and was the victim of, physical violence from a young age, including sexual abuse, and that kind of environment can negatively affect the neuropsychological development of the brain with the effects persisting into adulthood. Burch stated that the tests that she used to assess McGuire could have been administered to McGuire at the time of his trial in 1994, but were not. She further opined that McGuire has benefitted from the structure provided to him in prison and that one would expect him to continue to maintain his positive institutional adjustment.
According to Burch, individuals who exhibit neuropsychological impairments are not necessarily predisposed to homicidal behavior. However, among the criminal population, there is a higher occurrence of those impairments than in the general population. Burch addressed McGuire’s recent confession that he killed Stewart. She surmised that McGuire hid his guilt in the past because he is a person with low self-esteem and a propensity toward feeling ashamed. Though she concedes that the confession may simply be McGuire telling the Board and the Governor what he thinks they want to hear, she believes it could also be motivated in whole or in part by genuine shame and remorse. Lowe concluded his presentation by again noting that McGuire’s jury never heard the mitigation evidence presented during the clemency hearing. If presented with that mitigation, the jury would likely have spared McGuire’s life, he insisted. Likewise, given that the jury was consistently voting 11 to 1 even without the additional mitigation, Lowe believes that if the jury had life without parole available to it as a sentencing option, the jury would likely have recommended that sentence.1 Lowe concluded his presentation by reiterating his position that prior counsel’s failure to identify and develop the mitigation evidence that he presented at the clemency hearing was a grievous error that needs to be corrected through the Executive clemency process. Lowe also noted that McGuire is a model inmate who has availed himself of opportunities to better himself in prison. Though a dysfunctional group, McGuire; his brother, Genis Jr.; stepfather, Don Konz; and mother, Doris Newton all love and support one another. For those reasons, Lowe asked that the Parole Board recommend to the Governor that McGuire’s sentence be commuted to life without the possibility of parole.
ARGUMENTS IN OPPOSITION TO CLEMENCY:
Martin Votel, Preble County Prosecuting Attorney, and Stephen Maher from the Ohio Attorney General’s Office presented arguments in opposition to clemency. Votel argued that McGuire’s sentence was legal, appropriate, and just, and that there is no compelling reason to grant McGuire clemency. He described how McGuire kidnapped a pregnant Stewart; raped her; used a knife to sever her carotid artery and jugular vein; and left her to die alone. Votel stressed that there remains no doubt as to McGuire’s guilt, noting that the DNA in the case was retested in 2002 using modern DNA forensic techniques. Despite that DNA again coming back as a match to McGuire, McGuire continued to claim his innocence until just days ago, Votel observed. Votel addressed Lowe’s argument that trial counsel failed to adequately develop and present critical mitigation evidence concerning McGuire’s childhood. Before challenging the merits of that argument, Votel reminded the Board that McGuire refused to participate in a clemency interview during which he could have personally discussed that allegedly critical mitigation evidence with the Board. 1 Life without the possibility of parole was not an available sentencing option at the time of McGuire’s trial.
The mitigation presented by Lowe is essentially the same mitigation that was advanced by McGuire’s trial attorneys, Votel argued. McGuire’s dysfunctional childhood formed the basis for the mitigation defense. In addition to hearing testimony from McGuire’s sister and McGuire himself, the jury heard testimony from McGuire’s mother, the best authority available on how McGuire was raised. McGuire’s mother testified at trial about her numerous marriages, how McGuire was moved from school district to school district, how McGuire was illiterate, and how McGuire began using drugs at an early age. In short, the jury was given a real and comprehensive picture of McGuire’s childhood from McGuire himself and those individuals who were closest to him, Votel argued. Votel urged that certain of the additional mitigation evidence presented at the clemency hearing, such as the manner in which McGuire’s parents were raised and how Genis Jr. was treated as a child, is irrelevant. It is McGuire’s experiences and no one else’s that matter, Votel insisted. Other of Lowe’s allegations, such as McGuire’s alleged malnutrition, finds no support in the record, Votel observed. McGuire himself never mentioned that he went hungry as a child. While McGuire’s mother testified at trial that McGuire was “chubby,” there was never any mention of starvation. In fact, Votel continued, Genis Jr. stated during the clemency hearing that his father always worked and provided for the family. The record is thus devoid of any evidence that McGuire went hungry as a child. Evidence of malnutrition was not raised at trial because no one in McGuire’s family, including McGuire himself, noted it at that time. In any event, Votel argued, the scientific link between pre- or postnatal malnutrition and later antisocial behavior is uncertain at best.
The record was likewise devoid of any evidence that McGuire was physically or emotionally abused as a child. Physical or emotional abuse is not mentioned in McGuire’s presentence investigation report, Votel observed. McGuire’s own unsworn statement at trial made no mention of physical and emotional abuse. On the contrary, during that unsworn statement, McGuire identifies his mother’s second husband, Don Konz, as a father figure. During her trial testimony, his half sister, Tonya Cross, specifically denied that McGuire was ever physically abused. McGuire’s mother made no mention at trial of McGuire being sexually abused, despite the fact that her boyfriend at the time of the alleged abuse purportedly “took care of” the men who did it.2 Trial counsel did not raise McGuire’s alleged physical abuse during trial because those allegations only emerged years later during McGuire’s post-conviction appeals, Votel explained. Regardless, Votel continued, McGuire’s upbringing is irrelevant to the murder. Many people suffer malnutrition, deprivation, and physical abuse, yet few go on to commit murder. Votel stressed that trial counsel was not required to present every conceivable piece of mitigation available at that time. Adopting a “less is more” approach was reasonable. Indeed, a “less is more” approach was, from a legal perspective, imperative, Maher explained. Maher described how, ten months after killing Stewart, McGuire was arrested for an 2 See Sharon L. Pearson’s Psychological Evaluation, McGuire Clemency Exhibits, p. 58. unrelated knifepoint abduction of a fifteen-year-old female named Chicara Russell, for which he was eventually convicted. Later, during McGuire’s murder trial, one of his attorneys’ priorities would have been to keep information about the Chicara Russell incident away from the jury at both the guilt and mitigation phases of the trial. Had the jury learned that, ten months after killing Stewart, McGuire abducted a fifteen-year-old girl at knifepoint, the jury would have most certainly recommended the death sentence, Maher observed. Therefore, trial counsel had to tread very carefully in terms of the nature and extent of mitigation offered. If trial counsel put McGuire’s character too much into issue, Maher continued, it would have opened the door to the prosecution rebutting with evidence of the Chicara Russell abduction. In Maher’s view, rather than being criticized for their efforts in mitigation, McGuire’s trial attorneys should be applauded for preventing McGuire’s “other bad acts,” particularly the Chicara Russell abduction, from being disclosed to the jury. In addition to having to keep information about Chicara Russell away from the jury, McGuire’s trial counsel was also hamstrung by the criminal records of many of the potential mitigation witnesses, including McGuire’s brother, Genis Jr. Using unsavory characters to tell a story can backfire, Maher observed.
Votel addressed Dr. Burch’s finding that McGuire suffers from neuropsychological deficits, essentially challenging her conclusions as underwhelming and lacking basis in fact. After first noting that Burch has not been licensed to practice since 2006, Votel argued that what Burch offers in terms of mitigation is insubstantial. Her 2002 report notes that McGuire does not suffer from a major mental illness. The alleged neuropsychological deficits mean only that McGuire has difficulty controlling his behavior, Votel observed. As Burch herself acknowledges, those deficits do not predispose one to homicide. Trial counsel can hardly be blamed for failing to introduce such thin mitigation evidence, Votel suggested. Votel argued that there is little evidence that McGuire is impulsive and incapable of controlling his behavior—a “doer” and not a “thinker”—as Burch suggests. On the contrary, McGuire’s own sister, Mary Beth, describes McGuire as a follower. His brother, Genis Jr., refers to McGuire as a “good kid.” His mother claims that he is not a fighter. For the most part, he is a model prisoner, conforming to institutional rules while housed among a very difficult population. Indeed, Votel continued, McGuire is very much the thinker and planner that Burch suggests he is not. Within 48 hours after being arrested for the knifepoint abduction of Chicara Russell, McGuire had formulated a plan to exchange false information about Stewart’s murder—namely, that his eighteen-year-old brother-in-law killed Stewart—for law enforcement’s assistance with the pending abduction charges. McGuire’s plan to destroy his young brother-in-law’s life to save his own skin does not demonstrate impulsiveness, but rather cold calculation, Votel contended. Similarly, Votel continued, McGuire recently attempted to conspire with another convicted murderer, Steven Kasler, for Kasler to take responsibility for Stewart’s murder. Kasler, who is known to serially confess to murders that he did not commit, had no involvement in Stewart’s murder whatsoever. That plan was thwarted when prison officials intercepted a letter sent from Kasler to McGuire. Like his attempt to frame his brother-in-law, McGuire’s attempt to shift blame to Kasler, a willing co-conspirator, clearly demonstrates the capacity to think and plan that Burch claims he lacks. Votel argued that to presume that the jury would have chosen the option of life without parole had it been available is pure speculation. As such, it completely fails as an argument in support of clemency.
Votel discussed the plea agreement that was offered to McGuire at the time of trial by the then Preble County Prosecutor, which would have spared McGuire’s life had he accepted it. According to Votel, one has to understand the context in which his predecessor made that offer. That plea offer was made not because the prosecuting attorney believed that the death sentence was inappropriate, but rather because of the uncertainty that surrounded the DNA evidence the prosecution was planning to use at trial. At that time, reliance upon DNA in criminal prosecutions was not nearly as commonplace as it is today. Therefore, at the time of trial, some doubt existed as to whether the jury would understand the technology and whether its introduction would withstand appellate review. Those circumstances, Votel argued, made a plea offer a reasonable strategy from the standpoint of risk management. Now that those circumstances have changed, Votel sees no need to honor that offer by withholding any objection to clemency.
Despite his written confession, McGuire has failed to meaningfully admit his true culpability, Votel argued. McGuire’s confession, in which he alleges that he was having an extramarital affair with Stewart and that he killed Stewart after she became hysterical during a heated argument, is not an honest accounting of what he did to Stewart and why he did it. The official investigation into the murder uncovered that McGuire and Stewart barely knew one another. McGuire and Stewart did not even live in the same town. Stewart’s friends were interviewed after the murder and no mention was made by them of any known affairs. McGuire was never a person of interest in Stewart’s murder until McGuire broached the subject of her death with police following his arrest in the Chicara Russell case. The fact that McGuire never disclosed any affair to the several jailhouse informants with whom he discussed the crime also belies McGuire’s version of the crime, Maher added. In any event, if McGuire and Stewart were really having an affair, that information would surely have come to light during the trial or immediately thereafter, Votel observed. Maher stated that it is reprehensible for McGuire to now be accepting responsibility for the crime by essentially blaming the victim for her own death. McGuire’s refusal to completely accept responsibility even at this late stage suggests that McGuire is incapable of rehabilitation, Votel argued. Therefore, he continued, there is no reason why McGuire’s lawfully imposed death sentence, which has withstood years of judicial scrutiny, should not be carried out. Votel concluded the state’s presentation by asking that the Board make an unfavorable recommendation for clemency in McGuire’s case.
VICTIM’S REPRESENTATIVE:
Carol Avery, the victim’s sister, described how she was ten years old when her parents brought Stewart into their home as a foster child. Avery’s parents later adopted Stewart, changing her name to “Joy,” to reflect her sister’s bubbly personality. Avery pointed out that, throughout the clemency hearing, the Board heard a great deal about McGuire. Avery wanted the Board to know a little about Stewart. Avery described her sister as a very outgoing person who accepted and loved everyone. It was that trusting personality that caused her to get into McGuire’s car on the day he killed her. Avery, who has heard about the content of McGuire’s written admission, considers that admission a smear on her family and Stewart’s memory. There was no affair between McGuire and Stewart, Avery stated. Stewart was not urging McGuire to leave his family, as he alleges. Avery reminded the Board that McGuire’s brother, Genis Jr., had stated earlier in the clemency hearing that McGuire and his wife had already separated by the time Stewart was killed. Stewart was a newlywed and excited about her pregnancy, Avery recalled.
Avery noted that, though the story of McGuire’s childhood was tragic, that tragic childhood was not Stewart’s fault. Many people have imperfect childhoods but do not go on to hurt anyone, Avery observed. Avery was touched to hear about McGuire’s close relationship with his brother, Genis Jr. She wishes that she had been able to have a similar relationship with her sister during all the years that she has been deceased. Avery described how Stewart’s death changed her family. Her parents never overcame the pain of losing their daughter. Her parents, who are now deceased, died knowing that their daughter’s killer still lived. Avery noted that she was at the clemency hearing speaking on behalf of her entire family, including her two brothers who could not attend the hearing. Her family has forgiven McGuire, because that is what God calls upon them to do. At the same time, she believes that McGuire should pay with his life for the death sentence he handed her sister 24 years ago. PAROLE BOARD’S POSITION AND CONCLUSION: The Ohio Parole Board conducted an exhaustive review of the documentary submissions and carefully considered the information presented at the clemency hearing. The Board reached a unanimous decision to provide an unfavorable recommendation regarding clemency based on the following: ? Through the years, McGuire has repeatedly attempted to evade responsibility for his crime, first by attempting to frame his eighteen-year-old brother-in-law and, more recently, by conspiring with another inmate to have that other inmate confess to the crime. McGuire’s repeated efforts to confuse law enforcement and to prevent the administration of justice by placing blame for Stewart’s murder on individuals who were in no way responsible for her death speaks poorly of his overall character and suggests that he has experienced little positive growth during his incarceration. ? On the eve of his execution, McGuire finally admits to killing Stewart in a written confession that essentially describes the crime as a lovers’ quarrel gone horribly wrong, a depiction that is entirely uncorroborated. Rather than a genuine act of contrition, McGuire’s eleventh-hour admission instead seems disingenuous and contrived. ? McGuire’s crime is very disturbing in character, as it involved the rape and slaying of a nearly eight-month pregnant woman. Though McGuire claims to have merely “lost control” when he killed Stewart, the severing of both Stewart’s carotid artery and jugular vein demonstrate an obvious purpose to end her life, and to end it decisively and violently. ? McGuire abducted and assaulted a fifteen-year-old girl at knifepoint less than a year after killing Stewart, suggesting a propensity to violently prey on vulnerable victims. ? Like many inmates, McGuire had an impoverished, less-than-idyllic childhood that was obviously dysfunctional in character. Whether it included all of the physical, psychological, and sexual abuse alleged during the clemency hearing is less clear, however. The record is devoid of any objective, extraneous proof of that abuse, making it impossible to corroborate those claims. However, even taking as true all that was alleged about McGuire’s upbringing, the Board concludes that it neither explains his crime nor mitigates it to such a degree that the evidence would clearly have produced a different sentencing recommendation if presented to the jury.
RECOMMENDATION:
The Ohio Parole Board with eleven (11) members participating, by a vote of eleven (11) to zero (0), recommends to the Honorable John R. Kasich, Governor of the State of Ohio, that Executive clemency be denied in the case of Dennis McGuire.
State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (Ohio 1997). (Direct Appeal)
Defendant was convicted before the Court of Common Pleas, Preble County, of kidnapping, rape, and aggravated murder, and sentenced to death. On his appeal, the Court of Appeals affirmed. Defendant appealed as of right. The Supreme Court, Francis E. Sweeney, Sr., J., held that: (1) where defendant specifically asserted potential for rehabilitation as mitigating factor, state was entitled to rebut factor; (2) photographs of victim's body and crime scene were admissible; (3) evidence was sufficient to sustain convictions; (4) defendant did not establish that appellate counsel rendered ineffective assistance; (5) residual doubt is not an acceptable mitigating factor under capital sentencing statute; and (6) aggravating circumstances outweighed mitigating factors, and death sentence was proportionate. Affirmed. Pfeifer, J., filed opinion concurring in judgment only which was joined by Moyer, C.J.
Dennis McGuire, appellant, was convicted of the kidnapping, rape, and aggravated murder of twenty-two-year-old Joy Stewart of West Alexandria, Ohio. He was sentenced to death.
Joy Stewart was last seen alive on February 11, 1989. That morning, she had breakfast with her neighbors between 9 and 10. She went there alone that morning because her husband, Kenny Stewart, a truck driver, worked that day from approximately 7:00 a.m. to 5:00 p.m. After breakfast, Joy went to visit Juanita Deaton, the mother of her friend Chris Deaton. Mrs. Deaton and her son lived next to each other in a duplex in West Alexandria. McGuire had been hired by Chris Deaton to clean the ice out of his gutters that day. According to Chris, McGuire started around 9 or 10 a.m., and finished around noon. Mrs. Deaton testified that Joy arrived at around 9:30 or 10:00, while McGuire was working.
Mrs. Deaton saw Joy talking to two unidentified males in a dark-colored car before she left. As Joy was leaving, she told Mrs. Deaton that “she was going to catch a ride somewhere,” although Mrs. Deaton did not actually see Joy leave in the car. Mrs. Deaton was unsure whether McGuire was one of the men in the car. A few minutes later, however, Mrs. Deaton asked whether McGuire had finished working on the gutters, and her son stated that McGuire had been paid and left. Jerry Richardson, McGuire's brother-in-law, testified that McGuire later came over to his house that afternoon. While they were in Richardson's garage, Joy came in and said she wanted some marijuana. Richardson further testified that McGuire offered to get her some, and the two left in McGuire's car.
The following day, February 12, two hikers found the body of Joy Stewart in some woods near Bantas Creek. The front of her shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a “blood wipe mark” on her right arm. The body was taken to the Montgomery County Coroner's Office, where an autopsy was performed. The autopsy revealed that Joy had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that Joy was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to “how soft and moveable the tissues are in the neck.” The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of Joy's shirt.
The coroner's office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time “because the environment is fairly hostile for sperm, and * * * a bowel movement * * * usually will purge the rectum of any sperm.”
Investigator David Lindloff of the Preble County Prosecutor's Office investigated the murder, but to no immediate avail. However, in December 1989, Lindloff was notified that McGuire wanted to talk to him about information concerning a murder in Preble County. McGuire was in jail at the time on an unrelated offense and told a corrections officer that he needed to talk to Investigator Lindloff and Deputy Swihart. Joseph Goodwin, the corrections officer McGuire initially talked to, took appellant to a private room to talk, where McGuire told him that he knew who had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire's brother-in-law, had killed Joy with a knife, and appellant could lead investigators to it. McGuire explained to Officer Goodwin that Richardson had wanted to have sex with Joy, but she had refused. McGuire claimed that Richardson then pulled a knife on her, and forced her to have oral sex with him. McGuire then said Richardson anally sodomized her because he “couldn't have regular sex with her because she was pregnant.” He also said Richardson stabbed her “in the shoulder bone” and “cut her throat.”
Based on these details, Goodwin contacted Investigator Lindloff, who talked to McGuire on December 22, 1989. McGuire told Lindloff that Richardson committed the murder, that he stabbed Joy twice in the neck, and that “the first time it didn't go in. He pulled the knife back out and stuck her again.” Lindloff was interested, since the fact that Joy had been stabbed twice in the neck and anally sodomized had not been revealed to the public at that time. The appellant also described in detail the area where Joy's body had been found. McGuire then led Lindloff and deputies to the murder weapon, on a local farm where he and Richardson had occasionally worked. McGuire led the officers to the hayloft and showed them where a knife was hidden behind a beam.
A subsequent audiotaped interview by Deputy Swihart elicited further details from McGuire. McGuire claimed that Richardson choked Joy before stabbing her and wiped his bloody hands off on her, both of which actions were consistent with the state of Joy's body at the crime scene. Again, Swihart felt that these details were significant, since they had never become a matter of public knowledge. Furthermore, McGuire stated that he was pretty sure that Richardson was driving his mother's blue Ford Escort the day of the murder. However, Richardson's mother later testified at trial that she had traded that car in 1988, a year before the murder, and Richardson did not have access to her car on the day of the murder, since she had driven it to work. While in prison on December 24, 1989, McGuire received a visit from his childhood friend Shawn Baird. At the time, McGuire told Baird that he knew about a murder that happened in Preble County in February. When Baird asked who did it, the appellant stated that he and Jerry Richardson had done it, and he was going to blame it all on Jerry.
A fellow inmate at the Preble County Jail, Jack Stapleton, testified that he had overheard a conversation between McGuire and another inmate, in which McGuire claimed that he had seen his brother-in-law rape and murder Joy. However, at one point, McGuire apparently slipped and implicated himself when telling the story. While describing the murder, Stapleton testified that McGuire “had his hand like this describing [ sic], telling the guy how she was killed. And he said I—he goes I mean he. Stabbed her like this. Hit a bone. It didn't kill her. So he stabbed her again.” McGuire was later transferred to Madison Correctional Institute. An inmate there, Willie Reeves, testified that McGuire told him that while he was cleaning gutters, Joy showed up asking whether McGuire had any marijuana. McGuire offered to share some with her, and they left in his car. At one point McGuire asked whether she wanted to have sex, and she refused. McGuire then told Reeves he did it anyway. He then explained that because she was so pregnant, it was difficult to engage in sex with her, so instead he anally sodomized her. Joy then became “hysterical,” which made McGuire nervous. He ended up killing Joy for fear that he would go to jail for raping a pregnant woman.
In June 1992, the Montgomery County Coroner's Office sent the vaginal, anal, and oral swabs collected from Joy's body, along with a cutting from her underpants, to Forensic Science Associates, a private laboratory, for DNA testing using the PCR technique.FN1 A forensic scientist there compared DNA extracted from the samples with blood samples taken from Dennis McGuire, Jerry Richardson, Joy Stewart, and Joy's husband, Kenny Stewart. The scientist determined that McGuire could not be eliminated as a source of the sperm. Kenny Stewart and Richardson, however, could be eliminated, unless there were two sperm sources, e.g., multiple assailants. This was because the sperm analyzed contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2. McGuire's DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and the victim's DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified that the trace amount of 1.1, 2 could have resulted either from Joy's epithelial cells taken in the swab, or from a secondary sperm source. The sperm DNA analyzed had characteristics that appear in about one in one hundred nineteen males in the white population.
FN1. The FBI crime laboratory had tried to perform testing in 1989. However, the FBI at the time used the RFLP technique, which requires a greater amount of genetic material. The FBI was unable to extract sufficient DNA from the sperm cells for RFLP testing.
On December 22, 1993, McGuire was indicted on one count of aggravated murder under R.C. 2903.01(B), with one felony-murder specification for rape under R.C. 2929.04(A)(7). McGuire was also indicted on two counts of rape (vaginal and anal) and one count of kidnapping. On December 8, 1994, the jury returned a guilty verdict on the aggravated murder and specification charge. McGuire was also convicted of anal rape and kidnapping. After a sentencing hearing, the jury recommended a sentence of death for the aggravated murder. The trial judge sentenced the appellant to death, and the court of appeals affirmed. The cause is now before this court upon an appeal as of right.
FRANCIS E. SWEENEY, Sr., Justice.
Appellant has raised eighteen propositions of law for our consideration, which we have fully reviewed according to R.C. 2929.05(A). (See Appendix.) However, pursuant to State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, and subsequent cases, we summarily reject, without discussing, the merits of a number of appellant's propositions of law, as they involve settled issues. (Propositions of Law Three, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, and Eighteen.) Propositions of Law Two and Seven are waived. We have also independently assessed the evidence relating to the death sentence, balanced the aggravating circumstances against the mitigating factors, and reviewed the proportionality of the sentence to the sentences imposed in similar cases. As a result, we affirm the judgment of the court of appeals and uphold the sentence of death.
PENALTY PHASE ERRORS
In his fifth proposition of law, appellant raises a myriad of alleged errors on the part of the prosecution, the trial court, and the court of appeals. Only those issues that are properly preserved and which merit discussion will be addressed.
McGuire argues that a number of statements made by the prosecution during the penalty phase prejudiced his right to due process. Specifically he points to the prosecutor's and trial court's comments that McGuire's failure to admit the crime demonstrated the appellant's inability to be rehabilitated. Appellant relies on State v. Tyler (1990), 50 Ohio St.3d 24, 41, 553 N.E.2d 576, 596, for the proposition that a comment by the state on the defendant's lack of remorse at sentencing is improper. Tyler, however, does not hold that the state cannot comment on the lack of remorse whenever the defendant denies guilt. Rather, it holds that the state cannot refute potential mitigating factors that the defense has not first placed in issue. Id., citing State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542, 557–558. In this case, McGuire specifically asserted his potential for rehabilitation as a mitigating factor, and the state was entitled to rebut that factor by arguing that McGuire's denial of guilt was inconsistent with a potential for rehabilitation.
McGuire also asserts that the court of appeals erred because it failed to consider the testimony of Mary Beedy, who testified concerning McGuire's disciplinary record in prison. Her testimony was not mentioned in the court of appeals' opinion. However, McGuire “erroneously assumes that evidence that is not specifically mentioned in an opinion was not considered.” State v. Phillips (1995), 74 Ohio St.3d 72, 102, 656 N.E.2d 643, 669–670. A court of appeals is not required to explain its reasons in finding that the aggravating circumstances outweigh the mitigating factors. R.C. 2929.05(A). Moreover, our independent review cures any error. State v. Hill (1996), 75 Ohio St.3d 195, 211, 661 N.E.2d 1068, 1083. Appellant's fifth proposition of law is overruled.
EVIDENTIARY ISSUES
McGuire alleges in Proposition of Law Six that the state introduced gruesome and cumulative photographs of the victim's body that were irrelevant and prejudicial to appellant. In State v. Maurer (1984), 15 Ohio St.3d 239, 266, 15 OBR 379, 402, 473 N.E.2d 768, 792, we held that photographs of the body or crime scene were admissible if relevant and the danger of material prejudice to a defendant was outweighed by their probative value. Furthermore, the photographs must not be repetitive or cumulative. A trial court's decision to admit photographs of the victim's injuries will be upheld absent an abuse of discretion. State v. Slagle (1992), 65 Ohio St.3d 597, 602, 605 N.E.2d 916, 923.
In this case, none of the eleven photographs admitted was so gruesome that the danger of prejudice outweighed their probative value. The photographs were relevant in depicting the crime scene and illustrative of the coroner's autopsy report. Certain photographs which showed the incision in the victim's neck opened up during the autopsy and which showed a metal probe protruding from the severed artery were not misleading and were probative, since they illustrated the manner in which the wound was inflicted. State v. Murphy (1992), 65 Ohio St.3d 554, 579, 605 N.E.2d 884, 904–905. Several of the photographs may have been repetitive. However, we find that any error in admitting repetitive photographs was harmless.
Appellant also alleges that it was error for the court to submit Detective Swihart's taped interview with McGuire to the jury during its deliberations. McGuire claims that the interview, which was played during trial, was overly emphasized when the court allowed the tape into the jury room. However, there is no error in allowing the jury to view or hear for a second time an exhibit properly admitted into evidence. State v. Loza (1994), 71 Ohio St.3d 61, 79–80, 641 N.E.2d 1082, 1103; State v. Clark (1988), 38 Ohio St.3d 252, 257, 527 N.E.2d 844, 851. Sending properly admitted evidence into jury deliberations rests within the sound discretion of the trial judge. Id. In this case, the judge did not abuse his discretion in allowing the jury access to the taped interview. Therefore, appellant's sixth proposition of law is meritless.
SUFFICIENCY OF EVIDENCE
In Proposition of Law Nine, the appellant argues that the state failed to introduce sufficient evidence to prove all the elements of rape and felony murder beyond a reasonable doubt. When a defendant challenges the sufficiency of evidence, we determine “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. After reviewing the evidence in this case, we find it sufficient to support appellant's convictions.
McGuire's statements to the police tended to show guilt. He had detailed knowledge of the crime, correctly stating how Joy was raped, the way she was stabbed, where the crime took place, and where the knife was hidden. McGuire explained that these details came from what Jerry Richardson had told him the day after the murder, and that McGuire still remembered the details ten months later when he decided to talk to the police. However, the state's DNA expert testified that Richardson could not be the sole source of sperm. The DNA evidence was consistent with McGuire's guilt, since his DNA possessed characteristics similar to the DNA of sperm found on the victim's body. The DNA did not conclusively eliminate Richardson or Kenny Stewart, but they were possible sperm sources only if there was more than one source. Furthermore, there was evidence that Kenny was at work at the time of the murder, and Richardson could not have been driving his mother's car as McGuire claimed. Additionally, McGuire admitted guilt to Willie Reeves and Shawn Baird. Likewise, Jack Stapleton testified that McGuire accidentally implicated himself in describing the murder to another inmate.
Sufficient evidence was also presented indicating that McGuire was the principal offender. The DNA evidence implicated McGuire as the source of semen found on Joy's body. Jerry Richardson denied any involvement in the murder, and there was also testimony that Richardson did not have access to the car that McGuire claimed Richardson used in the commission of the rape and murder. Willie Reeves also testified that when McGuire admitted to the rape and murder, he made no mention of any accomplices. Finally, there was evidence that Kenny Stewart was at work on the day of the murder and therefore could not have been an accomplice to the crime. There was also sufficient evidence to prove rape. Reeves testified that McGuire told him that Joy became hysterical because “he wanted to have sex with her, and she didn't want to, so he did it anyway.” Moreover, the testimony of Lindloff, Reeves, and Stapleton shows that McGuire consistently used the word “rape” to describe what was done to Joy. The jury could infer from this evidence that the sexual contact was compelled by force or threat of force. Finally, the nature of the wound indicates specific intent to kill. McGuire also told Reeves that he killed Joy to avoid going to jail. Thus, there was sufficient evidence to convict appellant, and we reject his ninth proposition of law.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his eighth proposition of law, McGuire contends that his counsel in the court of appeals rendered ineffective assistance. Performance by appellate counsel will not be deemed ineffective unless that performance falls below an objective standard of reasonable representation and prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. Appellant first raises counsel's failure to challenge the constitutionality of Ohio's death penalty statute. McGuire acknowledges that this court has repeatedly rejected attacks on the death penalty statute, but argues that appellate counsel should have preserved the issue for federal habeas review. McGuire cites a case from the Seventh Circuit on preserving issues for habeas review. Freeman v. Lane (C.A.7, 1992), 962 F.2d 1252. However, the same court has also stated that a “failure to raise what appeared [at the time] to be a losing issue” is not deficient. Lilly v. Gilmore (C.A.7, 1993), 988 F.2d 783, 788.
Next, McGuire argues that appellate counsel should have assigned as error the trial court's instructions on purpose, reasonable doubt, and two issues relating to the death-qualification of the venire. But each of these issues was waived at trial and we find no plain error.
McGuire also complains that appellate counsel did not assign as error the trial court's failure to instruct the jury in mitigation on the nature and circumstances of the offense; the history, character, and background of the offender; and any other relevant factors. The court erred in not giving this instruction. The court did, however, give a list of specific factors for the jury to consider under R.C. 2929.04(B)(7). The only particular factor McGuire now claims that the jury could not consider under this list is McGuire's history of marijuana use. Under the circumstances of this case, reasonable appellate counsel could have decided that a history of marijuana use was of such little mitigation that the error in instructing the jury was harmless.
McGuire argues that appellate counsel should have raised the ineffectiveness of trial counsel as set forth in McGuire's seventh proposition of law. McGuire first asserts that trial counsel failed to adequately voir dire potential jurors. Specifically, he complains that counsel did not examine them sufficiently to determine whether they were capable of considering all the mitigating factors. However, trial counsel is in a better position than is a reviewing court to decide how deeply to probe the views of a prospective juror. Bradley, 42 Ohio St.3d at 143–144, 538 N.E.2d at 380–381. Furthermore, trial counsel did ask the veniremen whether they could consider mitigating circumstances, as opposed to automatically imposing the death penalty, and counsel could reasonably decide that it was unnecessary to ask prospective jurors whether they would find specific factors to be mitigating. Cf. State v. Wilson (1996), 74 Ohio St.3d 381, 385–387, 659 N.E.2d 292, 300–301. Since trial counsel were not deficient, McGuire's appellate counsel correctly decided to forgo raising this issue.
Additionally, McGuire asserts that trial counsel were ineffective, since they failed to object to the reasonable doubt and purpose instructions at trial. However, a reasonable attorney would have had no basis to object to the instruction on reasonable doubt. State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339, 352–353. As for the purpose instruction, “counsel could reasonably have thought the trial court's strong instructions on specific intent to kill were sufficient to protect their client.” Id. at 49, 630 N.E.2d at 350. Since McGuire failed to show a reasonable probability that but for counsel's failure to object, the trial would have been different, appellate counsel were justified in not raising this issue.
Appellant argues that appellate counsel should have raised the fact that trial counsel failed to seek before trial the merger of the kidnapping and rape charges. However, R.C. 2941.25(A) states, “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.” Allied offenses of similar import do not merge until sentencing, since a conviction consists of verdict and sentence. See State v. Osborne (1976), 49 Ohio St.2d 135, 144, 3 O.O.3d 79, 83–84, 359 N.E.2d 78, 85, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1155; State v. Waddy (1992), 63 Ohio St.3d 424, 447, 588 N.E.2d 819, 836. Therefore, reasonably competent trial counsel would not have sought the merger of allied offenses before trial, and appellate counsel correctly ignored this issue.
McGuire also claims that appellate counsel were ineffective for not raising a number of alleged penalty-phase errors made by trial counsel. First, he claims “inadequate preparation and presentation of mitigation evidence,” because counsel should have hired a “mitigation specialist” to gather mitigating evidence. However, he cites no authority that this is a requirement of effective assistance, and we hold that it is not. He further complains that trial counsel should have called more that just the two members of McGuire's family to testify in the penalty phase. But the record does not show that this resulted from inadequate investigation or incompetent decisionmaking. In addition, McGuire claims that Dr. Kuehnl, the defense psychologist who testified on his behalf, was inadequately prepared and should have performed routine tests to determine whether McGuire was suffering a mental disorder. McGuire appears to blame defense counsel for this, but the record provides no basis to do so. Kuehnl may have decided that such tests were unnecessary. If so, it seems reasonable that counsel would defer to the psychologist's professional judgment. Given the difficulty of proving ineffective assistance of trial counsel and the weakness of appellant's claims, McGuire's appellate counsel were not deficient in failing to raise the issue of ineffective trial counsel.
Appellant contends that trial counsel failed to effectively argue residual doubt. This is based on the fact the counsel did not attempt to admit a statement made by Joy's husband Kenny that he had anal intercourse with Joy three or four days before the murder. Appellant wanted this statement admitted to demonstrate that Kenny was the source of the semen found on Joy's body at the time of the murder. This statement was correctly deemed inadmissible hearsay and was not admitted at trial. McGuire argues, however, that even if this statement was inadmissible in the guilt phase, it was admissible in the penalty phase because there, “the Rules of Evidence do not strictly apply.” State v. Landrum (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710, 720. However, Kenny's statement was not strong evidence in McGuire's favor. The statement that Kenny had consensual sex three to four days before the murder was not against his interest, as was the case in Landrum, where the statement was deemed admissible. No physical or other evidence corroborated the fact that Kenny was the source of the semen found on Joy's body, unless there were two assailants. Kenny was at work at the time of the murder, and McGuire himself accused Jerry Richardson of the murder, not Kenny. As a result, McGuire has failed to show prejudice. His counsel's failure to proffer the statement in the penalty phase does not undermine confidence in the outcome. For the same reasons, such facts discount McGuire's argument in Proposition of Law One that the exclusion of Kenny Stewart's statement denied appellant due process under the United States Supreme Court's decision in Chambers v. Mississippi (1973), 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297. Chambers held that the hearsay rule should not be mechanistically applied, and an excessively strict application of the hearsay rule that excludes highly reliable evidence may deny an accused due process. However, unlike Chambers, these facts indicate that the excluded hearsay statement in this case is not highly reliable evidence. Accordingly, Proposition of Law One, which argues that the evidence was wrongly excluded at the guilt phase, is also overruled.
McGuire argues that appellate counsel should have argued the legal insufficiency of the evidence. Having found above that the state introduced sufficient evidence as a matter of law to support McGuire's conviction, we hold that appellate counsel's failure to argue this issue did not prejudice McGuire. McGuire contends that appellate counsel should have argued that the R.C. 2929.04(A)(7) felony-murder specification “duplicates and fails to narrow” the offense of felony-murder under R.C. 2903.01(B). Ohio precedent is clearly against McGuire, so he again argues that appellate counsel may have abandoned a federal constitutional claim. Our repeated holdings on this issue obviously mean that we believe the claim should fail in federal court too. There is no need to preserve futile claims.
Next, appellant argues that appellate counsel should have challenged the admissibility of Willie Reeves's testimony that “I guess [McGuire] was gonna make it look like someone else did it.” However, McGuire failed to challenge it at trial. No prejudice exists, since appellate counsel's failure to challenge this single, relatively insignificant statement by Reeves does not undermine confidence in the fairness or reliability of the appeal. McGuire further contends that appellate counsel should have challenged the rebuttal testimony of Shirley Dinkins as irrelevant or inadmissible, apparently under Evid.R. 403(A) and 611(A). However, Evid.R. 401 broadly defines “relevance,” and judges have broad discretion in admitting or excluding evidence, and controlling the order of interrogating witnesses. We hold that the trial court committed no error.
Finally, McGuire complains that his appellate counsel inadequately raised three issues. In the court of appeals, the eleventh assignment of error consisted of twenty-one alleged trial errors, supported only by citation to the record. Appellate counsel did not explain why the alleged errors were errors or how they had prejudiced McGuire. The assignment of error alleged that taken together, all of the errors denied appellant a fair trial. Pursuant to App.R. 12(A)(2), the court of appeals refused to address fourteen of these issues. McGuire now singles out three of those fourteen issues and argues that appellate counsel should have fully briefed them. He contends once more that appellate counsel “may have abandoned valid federal constitutional claims.” Again, we hold that there was no need to preserve these futile claims. McGuire has not shown that appellate counsel rendered ineffective assistance with respect to any of these issues by showing both deficient performance and prejudice. Accordingly, McGuire's eighth proposition of law is overruled.
MIRANDA ISSUE
In his tenth proposition of law, McGuire claims that his statements to law enforcement officers should have been suppressed because he was not advised of his rights. See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. McGuire's initial interview occurred with corrections officer Goodwin after McGuire repeatedly asked the officer that he be allowed to talk to detectives Lindloff and Swihart. Goodwin did not read appellant his Miranda rights. Goodwin took McGuire to a booking room, then asked whether McGuire had an attorney, “and he stated no, that he wanted to give me a statement on the murder case.” McGuire proceeded to give a voluntary statement concerning the murder.
Though Goodwin did not advise McGuire of his Miranda rights, it was unnecessary to do so. Miranda does not affect the admissibility of “[v]olunteered statements of any kind.” 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Furthermore, appellant initiated the discussion with police and volunteered the information. There was no evidence that Goodwin even asked any questions during the statement. Thus, appellant was not subject to custodial interrogation and was not entitled to Miranda warnings. State v. Roe (1989), 41 Ohio St.3d 18, 22, 535 N.E.2d 1351, 1357. Further interviews with McGuire all were proceeded by valid Miranda warnings and waivers by McGuire. McGuire claims that he did not voluntarily waive his rights due to his lack of education and illiteracy. However, the record of the suppression hearing contains no evidence about McGuire's lack of education, nor is there any evidence that officers used any coercive tactics in obtaining statements. In any event, the totality of the circumstances indicates that McGuire voluntarily waived his rights. He repeatedly begged to talk to detectives and tried to obtain concessions in exchange for information. He also gave a self-exculpatory version of events. The record depicts a man who voluntarily cooperated, or pretended to for his own purposes, not one who was coerced. Therefore, McGuire's tenth proposition lacks merit.
INDEPENDENT SENTENCE REVIEW
In accordance with R.C. 2929.05(A), we must now independently weigh the aggravating circumstances against the mitigating factors in this case, as well as determine whether the sentence is proportionate to death sentences in similar cases. The evidence in this case establishes beyond a reasonable doubt that appellant committed murder while committing, attempting to commit, or fleeing immediately after committing or attempting to commit rape, and was the principal offender, the specification set forth in R.C. 2929.04(A)(7).
In mitigation, the appellant presented evidence regarding his history, character, and background pursuant to R.C. 2929.04(B). Furthermore, appellant offered the following factors for the jury to consider under R.C. 2929.04(B)(7): any lingering or residual doubts about the defendant's guilt of the offense charged or an aggravating circumstance; the defendant's potential for rehabilitation; the ability to make a well-behaved and peaceful adjustment to life in prison; the ability to lead a useful life behind bars if sentenced to life imprisonment; the defendant's devotion to, and care of, his family members; whether the defendant was the victim of childhood abuse; whether the defendant was deprived of parental nurturing. The appellant presented no evidence of any mitigating factors under the specific factors of R.C. 2929.04(B)(1) through (6).
Initially, appellant offered residual doubt as a mitigating factor for the jury to consider in the penalty phase of his trial. Residual doubt has been described as “a lingering uncertainty about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ” Franklin v. Lynaugh (1988), 487 U.S. 164, 188, 108 S.Ct. 2320, 2335, 101 L.Ed.2d 155, 175 (O'Connor, J., concurring). In past cases, this court has held that residual doubt could be a mitigating factor. E.g., State v. Watson (1991), 61 Ohio St.3d 1, 572 N.E.2d 97; State v. Richey (1992), 64 Ohio St.3d 353, 372, 595 N.E.2d 915, 931; State v. Gillard (1988), 40 Ohio St.3d 226, 234, 533 N.E.2d 272, 281. However, we recently held that regardless of this, defendant is not entitled to an instruction on residual doubt. State v. Garner (1995), 74 Ohio St.3d 49, 56–57, 656 N.E.2d 623, 632.
The United States Supreme Court in Franklin v. Lynaugh, supra, held that states are not required to allow a defendant the opportunity to argue residual doubt as a mitigating circumstance. The court stated that residual doubt did not have to be considered as a mitigating factor because it was not relevant to the defendant's character, record, or any circumstances of the offense. Lynaugh, 487 U.S. at 174, 108 S.Ct. at 2327, 101 L.Ed.2d at 166. R.C. 2929.04(B) states that the nature and circumstances of the offense and the history, character, and background of the offender shall be considered in weighing against the aggravating circumstances of the crime. The statute also lists six specific factors to be considered, as well as a seventh factor that allows the sentencing body to consider “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death.” As Justice Resnick astutely noted in her dissent in Watson, residual doubt is mentioned nowhere in this statutory scheme, and further, cannot be considered under the catchall factor of R.C. 2929.04(B)(7). That is because R.C. 2929.04(B)(7) must be read in relation to R.C. 2929.04(B), and allows consideration only of those other factors relevant to the issue of whether the offender should be sentenced to death, that is, only those factors relating to the nature and circumstances of the offense, and the history, character, and background of the offender. Watson, 61 Ohio St.3d at 19, 572 N.E.2d at 112. Residual or lingering doubt as to the defendant's guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender. Id. See, also, King v. Florida (1987), 514 So.2d 354, 358; People v. McDonald (1995), 168 Ill.2d 420, 456, 214 Ill.Dec. 125, 140, 660 N.E.2d 832, 847; State v. Walls (1995), 342 N.C. 1, 52–53, 463 S.E.2d 738, 765–766.
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Watson, 61 Ohio St.3d at 20, 572 N.E.2d at 112 (Resnick, J., dissenting). Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. “Thus, if residual doubt is reasonable and not simply possible or imaginary, then an accused should be acquitted, and not simply have his death sentence reversed.” Id. Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death. Therefore, Proposition of Law Four, urging us to vacate the death penalty on the basis of residual doubt, is overruled.
Apart from inappropriately relying on residual doubt, appellant presented a number of other factors offered in mitigation. Doris Newton, McGuire's mother, and Tonya Cross, his half-sister, testified about McGuire's turbulent childhood. The defendant was born in 1960. His parents divorced two years later, leaving McGuire in the sole care of his mother. McGuire's father took his older brother away, and McGuire had little contact with them after that, except when he would run away from home to see them.
McGuire lived with his mother until he was eighteen. During that time, his mother was involved with several men, some of who physically beat her in front of the appellant, who was required on occasion to run for help. His mother and half-sister testified that these men did not abuse the appellant physically; however, they did inflict mental abuse by calling McGuire names, yelling at him, and generally treating him poorly. Some of these men, however, were good to the defendant, and one continued to be available to help him even after the marriage with appellant's mother ended. Defendant was also moved frequently, attending various schools, but eventually dropping out after ninth grade. Defendant began using marijuana at the age of nine and continued doing so until his incarceration in 1990. While imprisoned, appellant has taken strides to improve his education. He has also committed only minor infractions while incarcerated. Appellant has not demonstrated that the factors listed as mitigation outweigh the aggravated nature of the murder. While appellant's mitigation evidence is entitled to some weight, it is insufficient to overcome the aggravating circumstance in this case, that defendant committed rape in conjunction with murder. We therefore conclude under our independent review that the aggravating circumstances outweigh the mitigating factors in this case.
Finally, R.C. 2929.05(A) requires that we review the sentence in this case and determine whether it is proportionate to the sentence imposed in similar cases. This court has upheld the death sentence in a number of cases where only a single felony-murder specification was present. State v. Phillips (1995), 74 Ohio St.3d 72, 656 N.E.2d 643; State v. Fox (1994), 69 Ohio St.3d 183, 631 N.E.2d 124; State v. Simko (1994), 71 Ohio St.3d 483, 644 N.E.2d 345. Thus, appellant's death sentence in this case is neither excessive nor disproportionate.
Accordingly, we affirm both appellant's convictions and sentence of death. Judgment affirmed. DOUGLAS, RESNICK, COOK and LUNDBERG STRATTON, JJ., concur. MOYER, C.J., and PFEIFER, J., concur in judgment only.
PFEIFER, Justice, concurring in judgment only.
Pfeifer, J., concurring in judgment only. The death penalty is special. Ohio's death penalty statutory scheme, with its numerous and high hoops, is less a protection for defendants than it is a protection for our status as a civilized society. No one could deny that the execution of an innocent person would be the ultimate failure of our justice system. The mitigating factor of residual doubt reaches that deepest, most basic of concerns. The majority's contention that R.C. 2929.04(B) does not allow for the consideration of residual doubt is simply wrong. R.C. 2929.04(B) instructs the jury to consider “the nature and circumstances of the offense, the history, character, and background of the offender,” and the seven statutory factors, the seventh of which calls for a consideration of “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death.” (Emphasis added.) The use of the words “any other” in R.C. 2929.04(B)(7) specifically calls for a consideration of factors not considered in any other portion of R.C. 2929.04(B). What factor could be more relevant than identity?
Randall Dale Adams would certainly argue for its relevance. Adams was sent to Texas's death row for the murder of a Dallas policeman in 1976. See Radelet, Bedau & Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases (1992), Chapter 3. Adams, who had recently moved to Dallas from Grove City, Ohio, had met sixteen-year-old David Harris on the morning of the day before the murder. They spent the day together, driving around Dallas. They disputed what occurred in the evening. Adams claimed that Harris dropped him off near his motel at around 9:30 that evening. Harris testified that he and Adams went to a late show at a drive-in theater, and that after that, when the pair were pulled over shortly after midnight by police for driving without headlights, Harris slumped unseen in the front seat while Adams shot one of the officers in cold blood. The jury believed Harris, and the judge sentenced Adams to death. By chance, Adams's case caught the attention of filmmaker Errol Morris. Morris's film about the case, “The Thin Blue Line” (1988), generated publicity in the case and featured self-incriminating footage of Harris, filmed while he was serving time on death row for another murder. On March 21, 1989, Adams was finally released.
Certainly, residual doubt is an appropriate consideration in only a few cases. Still, its use should not be considered “illogical.” It is entirely logical to be certain beyond a reasonable doubt as to a man's guilt, yet not be certain enough to send him to his death. Residual doubt acknowledges our humanity—our ability not just to spit out data, but to recognize the subtle shadings that are a part of life. The factoring in of humanity when dealing with its ultimate decision is both relevant and logical. Residual doubt, when present, only spares a man from death—it does not leave him walking the streets. A life sentence leaves him still with the prospect of no prospects, alive and dead at the same time. If, as a civilized society, we are to be certain of anything, it must be that we are sending the correct person to his death. Residual doubt is not for every case, and not for the present one. But I will not be a part of removing the concept from the case for which it is right.
MOYER, C.J., concurs in the foregoing opinion.
APPENDIX
Proposition of Law One: “The trial court violates the accused's right to compulsory process under the Sixth and Fourteenth Amendments to the United States Constitution when it excludes evidence that tends to show that someone other than the accused was the source of the semen taken from the victim in a trial for felony murder and rape. The exclusion of such evidence also violates the accused's right to due process under the Fourteenth Amendment to the United States Constitution.”
Proposition of Law Two: “A capital defendant's right to fully individualized and reliable sentencing under the Eighth and Fourteenth Amendments to the United States Constitution is violated when the trial court's instructions on mitigating factors preclude the jury's consideration of the history, character and background of the defendant, the nature and circumstances of the offense and nonstatutory mitigating factors. A preclusive jury instruction on mitigating factors also infringes a capital defendant's liberty interest in Ohio Rev.Code Ann. § 2929.04(B) (Anderson 1993) as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”
Proposition of Law Three: “Appellant McGuire's right to a reliable capital sentencing phase was undermined because the trial court improperly led the jury to believe that it was not responsible for its death penalty verdict in violation of the Eighth and Fourteenth Amendments to the United States Constitution.”
Proposition of Law Four: “Dennis McGuire's death sentence is inappropriate because there is residual doubt whether he was the principal offender in Joy Stewart's murder. This court should vacate Mr. McGuire's death sentence pursuant to its independent review under Ohio Rev.Code Ann. § 2929.05(A).”
Proposition of Law Five: “Appellant McGuire's death sentence is unreliable in violation of the Eighth and Fourteenth Amendments to the United States Constitution as the result of penalty phase and sentencing errors. The penalty phase and sentencing errors also infringed appellant's right to due process under the Fourteenth Amendment.”
Proposition of Law Six: “The cumulative effect of evidentiary errors that pervaded this trial deprived appellant of a reliable trial and fair sentencing determination in violation of his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 2, 9, 10, 16 of the Ohio Constitution.”
Proposition of Law Seven: “Defense Counsel's actions and omissions at Mr. McGuire's capital trial deprived him of the effective assistance of trial counsel as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9, 10 and 16 of the Ohio Constitution.”
Proposition of Law Eight: “Appellant McGuire's right to due process under the Fourteenth Amendment to the United States Constitution was violated by the ineffective assistance of counsel in the court of appeals.”
Proposition of Law Nine: “The state failed to introduce sufficient evidence to prove all the elements of rape and felony murder beyond a reasonable doubt. As a result appellant was deprived of his right to due process of law under the Fourteenth Amendment of the United States Constitution as well as Article I, Section 16 of the Ohio Constitution.”
Proposition of Law Ten: “The trial court erred in failing to suppress appellant McGuire's statement in violation of his rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution as well as Article I, Sections 10 and 16 of the Ohio Constitution.”
Proposition of Law Eleven: “The accused's right to due process under the Fourteenth Amendment to the United States Constitution is violated when the state is permitted to convict upon a standard of proof below the required standard of proof beyond a reasonable doubt.”
Proposition of Law Twelve: “A capital defendant's right to due process under the Fourteenth Amendment is violated when the prosecutor seeks commitments from the prospective jurors at voir dire to impose the death penalty in the case before them. A capital defendant's right to a reliable death sentence and to due process is also violated when the trial court death qualifies the prospective jurors.”
Proposition of Law Thirteen: “A capital defendant's due process liberty interest in Ohio Rev.Code Ann. § 2945.25(C) is violated when a prospective juror with conscientious objections to capital punishment is removed from the jury panel unless the prospective juror is unequivally [ sic] opposed to capital punishment under all circumstances.”
Proposition of Law Fourteen: “A capital defendant's right to reliable sentencing under the Eighth and Fourteenth Amendments to the United States Constitution is violated when the trial court refuses to instruct the jury that it may consider mercy in its penalty phase deliberations.”
Proposition of Law Fifteen: “A charge that permits the jury to convict the defendant upon a strict liability standard when the defendant is charged with a specific intent offense, violates the Sixth and Fourteenth Amendments to the United States Constitution.”
Proposition of Law Sixteen: “A criminal defendant's right to due process under the Fourteenth Amendment to the United States Constitution is violated when the jury is instructed that the defendant's purpose to kill is presumed from the predicate facts of the offense. A jury charge that presumes the mens rea element from the predicate facts also usurps the jury's role of fact finder in violation of the Sixth and Fourteenth Amendments to the United States Constitution.”
Proposition of Law Seventeen: “It is error for the trial court to impose a death sentence on appellant McGuire based on his commission of a felony murder when the aggravating circumstance merely duplicated the substantive offense. This death sentence violates appellant McGuire's rights under Eighth [ sic] and Fourteenth Amendments of the United States Constitution.”
Proposition of Law Eighteen: “The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16 of Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, §§ 2903.01, 2929.02, 2929.21 [ sic, 2929.021], 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio's statutory provisions governing the imposition of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.”
McGuire v. Ohio, 619 F.3d 623 (6th Cir. 2010). (Habeas)
Background: Ohio state prisoner petitioned for federal habeas corpus relief, following affirmance of his state court conviction and capital sentence, 80 Ohio St.3d 390, 686 N.E.2d 1112. The United States District Court for the Southern District of Ohio, Susan J. Dlott, Chief Judge, 2007 WL 1893902,denied relief and, 2008 WL 618972, granted certificate of appealability. Prisoner appealed.
Holdings: The Court of Appeals, Rogers, Circuit Judge, held that: (1) exclusion of hearsay statement of victim's husband did not violate defendant's constitutional rights; (2) independent appellate reweighing of aggravating circumstances and mitigating factors cured any error by trial in omitting catch-all mitigation instruction; and (3) evidence was sufficient to establish compulsion by force, as required for rape and aggravated murder convictions. Affirmed.
ROGERS, Circuit Judge.
Capital habeas petitioner Dennis B. McGuire challenges the Supreme Court of Ohio's conclusions that (1) the trial court properly excluded certain hearsay by the victim's husband, (2) appellate counsel was not ineffective in failing to challenge the omission of a catch-all mitigation factor from the jury instructions, and (3) sufficient evidence supports the jury's guilty verdict for rape. The district court properly rejected each of these arguments and denied habeas relief.
McGuire was convicted of the kidnapping, rape and aggravated murder of Joy Stewart, and he was sentenced to death. State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1114 (1997). On the last day she was seen alive, Joy Stewart visited Juanita Deaton, whose son had hired McGuire to clean the gutters of the Deatons' house. Id. Mrs. Deaton saw Joy Stewart talking to two men outside the house, and testified that McGuire and Joy Stewart left the home at about the same time. Id. McGuire's brother-in-law, Jerry Richardson, testified that while McGuire was at Richardson's house later that afternoon, Joy Stewart arrived and requested marijuana. Id. at 1114-15. McGuire agreed to get marijuana for her, and she left with him in his car. Id. at 1115. Hikers found Joy Stewart's body the next day. Id. The Supreme Court of Ohio described the physical evidence and related testimony:
The front of [Joy Stewart's] shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a “blood wipe mark” on her right arm. The body was taken to the Montgomery County Coroner's Office, where an autopsy was performed. The autopsy revealed that [Joy Stewart] had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that [Joy Stewart] was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to “how soft and moveable the tissues are in the neck.” The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of [Joy Stewart's] shirt.
The coroner's office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time “because the environment is fairly hostile for sperm, and ... a bowel movement ... usually will purge the rectum of any sperm.”
When McGuire was later imprisoned on an unrelated offense, he discussed the killing with law enforcement officials: Joseph Goodwin, the corrections officer McGuire initially talked to, took [McGuire] to a private room to talk, where McGuire told him that he knew who had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire's brother-in-law, had killed [Joy Stewart] with a knife, and appellant could lead investigators to it. McGuire explained to Officer Goodwin that Richardson had wanted to have sex with [Joy Stewart], but she had refused. McGuire claimed that Richardson then pulled a knife on her, and forced her to have oral sex with him. McGuire then said Richardson anally sodomized her because he “couldn't have regular sex with her because she was pregnant.” He also said Richardson stabbed her “in the shoulder bone” and “cut her throat.” Based on these details, Goodwin contacted Investigator [David] Lindloff [who had investigated Joy Stewart's killing], who talked to McGuire on December 22, 1989. McGuire told Lindloff that Richardson committed the murder, that he stabbed [Joy Stewart] twice in the neck, and that “the first time it didn't go in. He pulled the knife back out and stuck her again.” Lindloff was interested, since the fact that [Joy Stewart] had been stabbed twice in the neck and anally sodomized had not been revealed to the public at that time. [McGuire] also described in detail the area where [Joy Stewart's] body had been found.
A subsequent audiotaped interview by Deputy Swihart elicited further details from McGuire. McGuire claimed that Richardson choked [Joy Stewart] before stabbing her and wiped his bloody hands off on her, both of which actions were consistent with the state of [Joy Stewart's] body at the crime scene. Again, Swihart felt that these details were significant, since they had never become a matter of public knowledge. Id. McGuire told a friend that he and Richardson had committed a murder and he was planning to blame Richardson for the crime. Id. at 1116. Two of McGuire's fellow inmates also testified at trial:
A fellow inmate at the Preble County Jail, Jack Stapleton, testified that he had overheard a conversation between McGuire and another inmate, in which McGuire claimed that he had seen his brother-in-law rape and murder [Joy Stewart]. However, at one point, McGuire apparently slipped and implicated himself when telling the story. While describing the murder, Stapleton testified that McGuire “had his hand like this describing [ sic ], telling the guy how she was killed. And he said I-he goes I mean he. Stabbed her like this. Hit a bone. It didn't kill her. So he stabbed her again.”
McGuire was later transferred to Madison Correctional Institute. An inmate there, Willie Reeves, testified that McGuire told him that while he was cleaning gutters, [Joy Stewart] showed up asking whether McGuire had any marijuana. McGuire offered to share some with her, and they left in his car. At one point McGuire asked whether she wanted to have sex, and she refused. McGuire then told Reeves he did it anyway. He then explained that because she was so pregnant, it was difficult to engage in sex with her, so instead he anally sodomized her. [Joy Stewart] then became “hysterical,” which made McGuire nervous. He ended up killing [Joy Stewart] for fear that he would go to jail for raping a pregnant woman. Id.
The coroner's office tested DNA samples collected from the swabs of Joy Stewart's body: In June 1992, the Montgomery County Coroner's Office sent the vaginal, anal, and oral swabs collected from [Joy Stewart's] body, along with a cutting from her underpants, to Forensic Science Associates, a private laboratory, for DNA testing using the PCR technique. A forensic scientist there compared DNA extracted from the samples with blood samples taken from Dennis McGuire, Jerry Richardson, Joy Stewart, and Joy's husband, Kenny Stewart. The scientist determined that McGuire could not be eliminated as a source of the sperm. Kenny Stewart and Richardson, however, could be eliminated, unless there were two sperm sources, e.g., multiple assailants. This was because the sperm analyzed contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2. McGuire's DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and the victim's DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified that the trace amount of 1.1, 2 could have resulted either from [Joy Stewart's] epithelial cells taken in the swab, or from a secondary sperm source. The sperm DNA analyzed had characteristics that appear in about one in one hundred nineteen males in the white population. Id. (footnote omitted). Over McGuire's objection, the trial court excluded from trial a statement by Kenny Stewart, Joy Stewart's husband, to law enforcement officials that he had engaged in anal intercourse with Joy Stewart three or four days before the murder. Id. at 1120. Kenny Stewart committed suicide before the trial began, 4 J.A. 1462, 1477, and the trial court held that his statement was inadmissible hearsay, 686 N.E.2d at 1120. The jury found McGuire guilty of rape, kidnapping, and aggravated murder with the rape specification. Id. at 1114.
At sentencing, McGuire's family and a psychologist testified to McGuire's traumatic youth, childhood marijuana use, and school difficulties. The trial court instructed the jury to consider “all the relevant evidence” and stated that [Y]ou are going to proceed to weigh the aggravating circumstance which you have already found against the mitigating factors which you will consider and find. The aggravating circumstance which you have already found is as follows: The offense was committed while the Defendant was committing, or attempting to commit, or fleeing immediately after committing or attempting to commit rape and was the principal offender in the commission of the aggravated murder.
Now, weighing against the aggravating circumstance will be the following mitigating factors: 1) Any residual or lingering doubts about the Defendant's guilt of the offense charged or an aggravating circumstance. 2) The Defendant's potential for rehabilitation. 3) The Defendant's ability to make a well-behaved and peaceful adjustment to life in prison. 4) The Defendant's ability to lead a useful life behind bars if sentenced to life imprisonment. 5) The Defendant's devotion to, and care of, his family members. 6) Whether the Defendant was the victim of childhood abuse. 7) The Defendant was deprived of parental nurturing. 6 J.A. 2324-25. McGuire's counsel requested an instruction to “advise the jury that they could come up with their own mitigating factor, based upon any of the evidence that was presented to them.” 6 J.A. 2298. The trial court declined to give this catch-all instruction. The jury recommended a death sentence, and the trial court imposed that sentence.
Before the Court of Appeals of Ohio, McGuire challenged the exclusion of Kenny Stewart's statement and the sufficiency of the evidence, but he did not challenge the trial court's omission of a catch-all mitigation factor from the jury instructions. The Court of Appeals affirmed McGuire's conviction. No. CA95-01-001, 1996 WL 174609 (Ohio Ct.App. Apr. 15, 1996). Before the Supreme Court of Ohio, McGuire challenged the exclusion of Kenny Stewart's statement and the sufficiency of the evidence, as well as the omission of the catch-all mitigation factor, and McGuire alleged that his appellate counsel was ineffective for failing to challenge that catch-all omission before the Court of Appeals of Ohio. The Supreme Court of Ohio denied McGuire's appeal and held that the hearsay statement was not admissible. 686 N.E.2d at 1120. The Supreme Court of Ohio also held that the trial court erred in not instructing the jury on a catch-all mitigation factor but that “[u]nder the circumstances of this case, reasonable appellate counsel could have decided that a history of marijuana use was of such little mitigation that the error in instructing the jury was harmless.” Id. at 1119. The Supreme Court of Ohio also independently reweighed the aggravating circumstances and mitigating factors to determine whether the death sentence was appropriate. Id. at 1122-23. After noting that residual doubt was not a proper mitigating factor, the Supreme Court of Ohio continued to weigh the mitigating evidence presented:
Doris Newton, McGuire's mother, and Tonya Cross, his half-sister, testified about McGuire's turbulent childhood. The defendant was born in 1960. His parents divorced two years later, leaving McGuire in the sole care of his mother. McGuire's father took his older brother away, and McGuire had little contact with them after that, except when he would run away from home to see them. McGuire lived with his mother until he was eighteen. During that time, his mother was involved with several men, some of who physically beat her in front of the appellant, who was required on occasion to run for help. His mother and half-sister testified that these men did not abuse the appellant physically; however, they did inflict mental abuse by calling McGuire names, yelling at him, and generally treating him poorly. Some of these men, however, were good to the defendant, and one continued to be available to help him even after the marriage with appellant's mother ended.
Defendant was also moved frequently, attending various schools, but eventually dropping out after ninth grade. Defendant began using marijuana at the age of nine and continued doing so until his incarceration in 1990. While imprisoned, appellant has taken strides to improve his education. He has also committed only minor infractions while incarcerated.
Appellant has not demonstrated that the factors listed as mitigation outweigh the aggravated nature of the murder. While appellant's mitigation evidence is entitled to some weight, it is insufficient to overcome the aggravating circumstance in this case, that defendant committed rape in conjunction with murder. We therefore conclude under our independent review that the aggravating circumstances outweigh the mitigating factors in this case. Id. at 1123. The Supreme Court of Ohio therefore affirmed McGuire's conviction and sentence. Id. at 1124.
After the Ohio courts denied McGuire post-conviction relief, No. CA97-06-015, 1998 WL 191415 (Ohio Ct.App. Apr. 20, 1998), McGuire petitioned for relief under 28 U.S.C. § 2254. McGuire challenged, inter alia, the exclusion of Kenny Stewart's statement, the omission of a catch-all mitigation factor instruction and appellate counsel's failure to challenge that omission, and the sufficiency of the evidence of rape. McGuire argued that his counsel's ineffectiveness in failing to raise the jury-instruction-omission claim before the Court of Appeals of Ohio excused procedural default of the underlying claim.
The district court held that excluding Kenny Stewart's statement was not an unreasonable application of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), because the statement was neither spontaneous, nor corroborated, nor inherently incriminating, and because Kenny Stewart was not available for cross examination. No. 3:99-CV-140, 2007 WL 1893902, at *10 (S.D.Ohio July 2, 2007) (Dist.Ct.Op.). The district court also held that, although omitting a catch-all mitigation factor from the jury instructions was error and McGuire's appellate counsel performed deficiently by failing to challenge the omission, it was unnecessary to determine whether McGuire suffered prejudice that would excuse his procedural default because the Supreme Court of Ohio's independent reweighing of the aggravating circumstances and mitigating factors “cured the trial court's error and obviated any prejudice caused thereby.” Id. at *13. The district court finally held that sufficient evidence supported the jury's rape verdict because “McGuire consistently referred to [Joy] Stewart being ‘raped’ ” in discussions with Lindloff, Stapleton, and Reeves; “medical evidence [was] consistent with a finding of compulsion by force;” and “in view of the DNA evidence introduced at trial, it was not unreasonable for the jury to conclude that McGuire was the source of the semen collected from [Joy] Stewart's vagina and anus.” Id. at *26-27. The district court denied habeas relief on these and other grounds raised by McGuire, and granted a certificate of appealability with respect to these three grounds. McGuire now appeals.
McGuire, however, is not entitled to habeas relief on any of the three claims. McGuire's petition is governed by the Anti-Terrorism and Effective Death Penalty Act, under which the federal courts may grant habeas relief to a state prisoner based on claims adjudicated on the merits in state court if the state-court adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254.
First, the Supreme Court of Ohio did not unreasonably apply federal law when it held that McGuire suffered no constitutional violation when the trial court excluded Kenny Stewart's statement that he had engaged in anal intercourse with the victim, his wife Joy, in the days before her death. McGuire relies primarily on Chambers v. Mississippi, in which the Supreme Court held that the exclusion of a hearsay statement coupled with the trial court's refusal to permit cross-examination of the declarant on that statement violated the defendant's constitutional rights when the hearsay statement was corroborated by other evidence, “self-incriminatory and unquestionably against interest,” and “made spontaneously to a close acquaintance shortly after the [crime],” and when the declarant was available for cross examination. 410 U.S. at 300-301, 93 S.Ct. 1038. The district court carefully distinguished Chambers, and we adopt the district court's reasoning in that regard. Dist.Ct.Op., at *10. The excluded statement was not unquestionably against the declarant's interest because the statement would explain the potential presence of his semen in Joy Stewart's anus; the statement was not spontaneous, but rather a response to police questioning; the statement was not corroborated by other evidence; and Kenny Stewart was not available for cross-examination at trial. Therefore, the Supreme Court of Ohio did not unreasonably apply federal law when it held that excluding Kenny Stewart's statement did not violate McGuire's constitutional rights, and McGuire was not entitled to habeas relief on this basis. FN1. Moreover, it is unclear how evidence of anal sexual contact between Joy and Kenny Stewart would tend to exculpate McGuire. As the coroner testified, McGuire's DNA is DQ Alpha type 3, 4 while Kenny Stewart's DNA is DQ Alpha type 1.1, 2. The sperm samples from Joy Stewart's body contained a DQ Alpha type 3, 4 with a trace amount of DQ Alpha type 1.1, 2. Therefore, the presence of Kenny Stewart's DQ Alpha type 1.1, 2 sperm in Joy Stewart's anus would not explain the presence of DQ Alpha type 3, 4 sperm-McGuire's type-and therefore would not logically exculpate McGuire.
Second, the independent reweighing of the aggravating circumstances and mitigating factors by the Supreme Court of Ohio cured any error, assuming there was constitutional error, involving omission of a catch-all mitigation factor from the jury instructions at sentencing and McGuire's counsel's failure to challenge that omission before the Court of Appeals of Ohio. If a jury recommends the death penalty partially based on improper aggravating factors, independent appellate reweighing of proper aggravating and mitigating evidence cures the error. Clemons v. Mississippi, 494 U.S. 738, 748-50, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The rule in Clemons with respect to consideration of improper aggravating factors applies as well to an alleged failure to consider proper mitigating factors, so long as no relevant mitigating evidence has been excluded during the reweighing. Baston v. Bagley, 420 F.3d 632, 638 (6th Cir.2005). McGuire concedes that all the relevant mitigating evidence was admitted, and in reweighing, the Supreme Court of Ohio did consider the factors allegedly excluded by the trial court's jury instruction: McGuire's marijuana use, troubled youth, and school difficulties. Therefore, even assuming the trial court committed constitutional error by omitting a catch-all mitigation factor and appellate counsel performed deficiently in failing to challenge the omission before the Court of Appeals of Ohio, the Supreme Court of Ohio cured any resulting error by its reweighing of the proper aggravating circumstances and mitigating factors.
Although we granted habeas relief in another capital case, Davis v. Coyle, 475 F.3d 761, 774 (6th Cir.2007), where the trial court had excluded certain mitigating evidence, that case was different. Reweighing in Davis was “not possible because the improperly-excluded evidence was never put into the record.” Id. Unlike in Davis, all the relevant evidence in this case was admitted and in the record when the Supreme Court of Ohio reweighed it. See Dist.Ct.Op., at *14 n. 6. Cases in which the Supreme Court of the United States has granted habeas relief when a trial court's jury instructions precluded consideration of proper mitigating evidence, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007), are also inapposite because these cases originated from states that, unlike Ohio, do not reweigh on appeal. McGuire's claim also finds no support in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in which the Supreme Court held that a due process violation occurs when a trial court imposes a death sentence partially based on information never disclosed to the defendant and which the defendant therefore could not deny or explain. Id. at 357-62, 97 S.Ct. 1197 (plurality opinion). McGuire's death sentence, by contrast, was based wholly on evidence McGuire heard in open court and could deny or explain by means permitted in the state rules of evidence. Therefore, McGuire was not entitled to habeas relief on this claim.
Finally, with respect to the sufficiency of evidence of rape, we again adopt the district court's reasoning. Dist.Ct.Op., at *26-27. The Supreme Court of Ohio did not unreasonably determine the facts when it held that sufficient evidence supports the jury's verdict that McGuire is guilty of rape, and therefore guilty of aggravated murder and eligible for the death penalty, because McGuire described the sexual contact with Joy Stewart as forcible in his statements to law enforcement and fellow inmates, and DNA evidence did not eliminate McGuire as the source of the sperm in her body. Two layers of deference apply to habeas claims challenging evidentiary sufficiency. Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir.2009). “First ... we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 205 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable.” Id. (citing 28 U.S.C. § 2254). Under Ohio law, rape is defined as “sexual conduct with another person [in which] ... the offender purposely compels the other person to submit by force or threat of force.” Ohio Rev.Code § 2907.02(A)(2). Aggravated murder is “purposely caus[ing] the death of another ... while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit ... rape.” Ohio Rev.Code § 2903.01. The death penalty may be imposed for aggravated murder if “[t]he offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit ... rape.” Ohio Rev.Code § 2929.04(A).
McGuire argues that the evidence was not sufficient to show the compulsion by force or threat of force required under the Ohio rape law. But McGuire told law enforcement officers that Richardson had raped Joy Stewart, and he told fellow inmates that she had refused to have sex with McGuire. Medical evidence of skin abrasions was consistent with compulsion by force. In addition, Stewart's body was found lying on the ground without a coat, out of doors in the Ohio winter. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find that McGuire purposely compelled Joy Stewart to engage in sexual conduct with him, and the Supreme Court of Ohio was not unreasonable when it decided that sufficient evidence supported the jury's verdict that McGuire was guilty of rape. Because sufficient evidence supported the jury's guilty verdict for rape, sufficient evidence supported the jury's findings that McGuire is guilty of aggravated murder and eligible for the death penalty based on rape. Therefore, McGuire was not entitled to habeas relief on this basis.
Because the Supreme Court of Ohio did not unreasonably apply or rule contrary to Supreme Court law, we affirm the district court's denial of habeas relief.