David M. Brewer

Executed April 29, 2003 by Lethal Injection in Ohio

29th murderer executed in U.S. in 2003
849th murderer executed in U.S. since 1976
2nd murderer executed in Ohio in 2002
7th murderer executed in Ohio since 1976

Since 1976
Date of Execution
(Race/Sex/Age at Murder-Execution)
Date of
(Race/Sex/Age at Murder)
Date of
Method of
to Murderer
Date of
Lethal Injection
David M. Brewer

W / M / 25 - 44

Sherry Byrne

W / F / 21

Stabbing with knife x15

Joe Byrne and Brewer were fraternity brothers who socialized, along with their wives, occasionally after college. The Byrnes then lived in the Cincinnati area. Brewer lured Joe's 21 year old wife Sherry to a Sharonville motel on the pretense that she would meet Brewer and his wife there to buy stereo speakers. Brewer came to the motel without his wife, kidnapped Sherry Byrne and raped her at the motel, then forced her into his trunk. Brewer stabbed her 15 times, slit her throat, and hanged her using his necktie. Four days later, Brewer confessed and led officers to her body in a rented storage unit in Franklin.


State v. Brewer, Ohio App. 2 Dist.1 (WL 339940 Jun 14, 1996) (PCR)
State v. Brewer, Ohio App. 2 Dist.1 (WL 527740 Sep 28, 1994) (PCR)
State v. Brewer, 48 Ohio St.3d 501 (1990), cert. denied, 498 U.S. 881 (1991). (Direct Appeal)
State v. Brewer, 549 N.E.2d 491 (Ohio 1990). (Direct Appeal)

Final Meal:
Deep-fried chicken, baked potato with butter, macaroni and cheese, corn, dinner rolls, a slice of apple pie and root beer.

Final Words:
"Just that I'd like to say to the system in Ohio, as far as the death row inmates are concerned, there are some that are innocent. I’m not one of them. But there are plenty that are innocent. I hope the state recognizes that. That’s all I have to say."

Internet Sources:

Ohio Department of Rehabilitation and Correction (Death Row)

Inmate #: 187234

Inmate: Brewer, David M.

DOB: 4/22/59

County of Conviction: Greene

Date of Murder: 3/21/85



Joe Byrne, whose wife, Sherry, was abducted, raped and killed on March 21, 1985, said he believes the state should execute people faster. "It's a joke,'' Byrne said. "There should be due process, but at some point, the line needs to be drawn. We've gone way past that.'' His wife's killer, David Brewer, has been on Death Row since admitting to and being convicted of her murder. Now remarried and an executive with a New Jersey manufacturing company, Byrne monitors the court battle to execute Brewer. If Brewer is put to death -- and Byrne doubts it will happen -- he said he wants to watch. "People say I should get away from the case, but I just can't do it,'' he said. "For two years, I did not want to live.''

The Byrnes had been married just eight months and were living in the Cincinnati suburb of Springdale when Brewer, a family friend, lured Sherry Byrne to a hotel. There he raped her, threw her into the trunk of his car and drove around southwest Ohio most of the day. In an isolated area near Beavercreek, Brewer stabbed Sherry Byrne, slit her throat and hanged her using his necktie. He was arrested five days later. Police found her body in a rented storage unit in Franklin. "She had no chance,'' Byrne said. "She tried so hard to save her life.'' Now Byrne wants Brewer to die -- as much to defeat his public defender attorneys as to avenge his wife's death. "The lawyers have to be stopped,'' he said. "That's my revenge.''

UPDATE: The Ohio Supreme Court on Friday set an April 29 execution date for David Brewer, the former Washington Twp. man who almost exactly 18 years ago raped and killed his college fraternity brother’s bride, Vandalia Butler High School graduate Sherry Byrne. The 21-year-old victim, kidnapped and trapped in the trunk of Brewer’s car, wrote “Help me please” in lipstick on a piece of paper and shoved it outside the trunk, where it was read by other motorists as Brewer drove through Beavercreek. No help came, and Brewer killed her on a secluded lane off Factory Road on March 21, 1985.

Brewer, who will turn 44 a week before his execution date, has exhausted all appeals. His attorney, assistant Ohio public defender Joseph Wilhelm, said no last-minute appeals will be filed, but Brewer will ask Gov. Bob Taft to commute his death sentence to life imprisonment. A clemency hearing before the Ohio Parole Board has not yet been scheduled. Even though Taft has yet to grant clemency to a condemned prisoner, Wilhelm said, “we would hope he would give it serious consideration. I think there’s a human being there worth saving. David’s pretty unique among people who are facing the death penalty, in that he led a pretty clean life before he committed one terrible act,” adding Brewer has been an exemplary inmate since his 1985 conviction by a three-judge panel. “Mercy weighs in his favor.”

Joe Byrne, Sherry’s widower, disagrees. Asked for his reaction to the Supreme Court's action, he said, “Well, it’s about time. This should’ve happened, in my opinion, eight or 10 years ago,” Byrne said. “But thanks to our wonderful system, lawyers can delay it for years and years with bogus arguments and whatever their imagination can come up with.” Byrne, who lives in central New Jersey, said he plans to be a witness at his one-time friend’s lethal injection at the Southern Ohio Correctional Facility at Lucasville. Brewer is on Death Row at Mansfield Correctional Institution. “I’m going to go because I feel like I have to, to represent Sherry,” Byrne said, “because through the whole process she’s been cast aside as sort of a faceless victim.”

Joe Byrne and Brewer were fraternity brothers who socialized, along with their wives, occasionally after college. The Byrnes then lived in the Cincinnati area. Brewer lured Sherry Byrne to a Sharonville motel on the pretense that she would meet Brewer and his wife there to buy stereo speakers. Brewer came to the motel without his wife, kidnapped Sherry Byrne and raped her at the motel, then forced her into his trunk. After he stabbed and strangled her, Brewer put her body in a storage locker in Franklin.

Brewer would be the seventh convicted murderer to be put to death in Ohio since 1999, when executions resumed after a 36-year hiatus. Most recently, Richard Fox was executed Feb. 12 for the murder of a Bowling Green woman. There are 205 men on Ohio’s Death Row. Joe Byrne said he doesn’t know how he’ll feel as he watches his former friend Brewer die. “I don’t know how I’m going to react when I get there,” he said. “The word ‘closure’ is way overrated. But he inflicted a lot of pain on a lot of people beyond myself. I don’t view it as a sad event.”

UPDATE: In March 1985, Sherry and Joe Byrne were planning their future. Sherry, 21, and Joe, 25, had married a few months earlier. She was working as a part-time cosmetics saleswoman, and Joe had a job with a prominent financial company. They bought a house in Springdale. They were trying to have a baby. Then in a brutal and gruesome act, Joe's friend and fraternity brother, David Brewer, lured Sherry from her home on a ruse, then abducted, raped and killed her. "As time goes on, it's less about how much I miss her," says Joe Byrne, now 43 and living in Bridgewater, N.J. Now, "I'm sad that she was robbed of her life, and can't enjoy the fruits of my work." Brewer was convicted of Sherry Byrne's kidnapping and murder. The state of Ohio will execute him on Tuesday; Gov. Bob Taft on Friday declined to grant clemency.

There's never been any question that Brewer killed Sherry on March 21, 1985. But his attorneys say death is not the right punishment for a 43-year-old man who led an upstanding life before and after the crime. "Our argument is that his whole life should be taken into account," says Ohio Assistant Public Defender Joseph Wilhelm. "That should outweigh the worst thing he ever did." Sherry's family says death is exactly the right punishment. David Brewer didn't just take Sherry's life when he strangled her with a necktie, stabbed her 15 times and slit her throat. He ruined the lives of everyone close to her. Her mother, Myrtle Kaylor, had to be hospitalized. Grief overwhelming all other emotions, she and Sherry's stepfather, Lylburn Kaylor, soon divorced. Joe, too, said he was in and out of psychiatric care after his wife's death. Now, "An unexplainable ease has come over me," Joe Byrne says. "I think he needs to die, mostly because I don't think he and his attorneys should be rewarded for all the lies they have perpetuated over the years. "Dave has never accepted responsibility for what he did," he says.

That March day, Brewer, an appliance store manager who lived in suburban Dayton, Ohio, called Sherry Byrne and invited her to come meet him and his wife at a Sharonville hotel. But when she arrived with her puppy, Beau, she found Brewer alone there. After assaulting her, he forced her into the trunk of his car, then drove her around for hours before killing her that evening on a secluded road in Greene County. The puppy was let loose. Four days later, Brewer confessed and led officers to her body. He was convicted that fall and sentenced to death.

Joe Byrne describes his wife as a beautiful person who was always smiling. He theorizes that Brewer misinterpreted her friendly nature. Then, when he found out she didn't have the same feelings, he got mad and attacked her. On the day he was sentenced for Sherry's murder, Greene County Prosecutor William Schenck told Sherry's family the appeals would take more than 15 years. Countless appeals in state and federal court have led to Tuesday. Schenck has presided over four death penalty cases - Brewer would be the first defendant to die. Byrne asked him to witness the execution with him, and Schenck agreed. He debunks the argument that Brewer should be spared because he is good person. "Some crimes are so horrid nothing else matters," Schenck says. "What he did more than justifies the death penalty. He had more than a dozen opportunities to let her go and he chose the dark side." Schenck says he's tense about watching a man die, but stands by his decision. "I asked for the death penalty, and I have to have enough backbone to see it through," he says.

It's never been easy, but the first year was the hardest, Joe Byrne says. Twice that year he checked into the psychiatric unit of The Christ Hospital. "I wanted to die," Byrne says. He never went back to the home he shared with Sherry. Instead, he moved into his parents' Middletown home. He couldn't even go back to his job. When his boss pleaded with him to return, Byrne tried, but burst into tears on his way downtown. He turned around and went home. Beau the puppy was found and returned to Byrne. For months after the murder, if a woman screamed on television, Beau would go crazy. Slowly, Byrne found his drive again. He sold the Springdale home, keeping only a few mementos. In particular, he clung to a basketball jersey his wife often slept in. He filed civil lawsuits, winning a half million dollars in a wrongful death suit against Brewer - not that Brewer has any money. It was more about making sure Brewer never sold the rights to his story for a book or movie, Byrne says.

Byrne remarried in late 1987. When a job offer came from New Jersey in 1988, he took it. Too many sad memories in Cincinnati, he thought. He and his second wife, Cristine, have three children. Now the most difficult times are anniversary dates. The day Joe and Sherry got married, her birthday. The day she died. In 1990 during a trip home to visit his parents, Byrne went to the deserted farm lane where his wife drew her last breath. "I just sat there are cried," he says. Byrne has stayed close with the Kaylors over the years. That's helped, Myrtle Kaylor says. "There's a void in my life as if it's never really complete," says Kaylor, who lives in Dayton. She's never been able to forge close relationships like she had with her daughter. "I never remarried, never gave of myself like that," she says. "I'm so afraid that I'll be hurt again." She's hoping Brewer's death will bring a sense a relief. "It's not going to be a celebration," Kaylor says. "I don't celebrate somebody else's downfall, but at the same time it means I don't have to deal with more hearings and more appeals and read about it in the paper." Kaylor says by attending the execution she'll "walk the last mile with her daughter."

UPDATE: Details of Sherry Byrne's killing - At first authorities didn't divulge the most gruesome details of 21-year-old Sherry Byrne's death. But over the years the horror she experienced during those last hours with her killer, David Brewer, unraveled during hearings and death sentence appeals. MARCH 21, 1985: David Brewer called Sherry Byrne at her Springdale home and asked her to meet him and his wife, Kathy, at the Red Carpet Inn in Sharonville, where they were celebrating his wife's pregnancy. Also, he said, he had stereo speakers for her that they had previously talked about. Sherry called her husband, Joe Byrne, at work with the news, and then rushed out of the house with their 4-month-old puppy, Beau, a Christmas present from Byrne to his wife. Nobody knows for sure exactly what happened at the hotel, but prosecutors say Brewer, who was more than twice Sherry's size, raped and beat her, tied her up and tossed her in the trunk of his Mercury Topaz. He drove around for Hamilton, Warren and Greene counties for several hours, stopping several times to beat her up. She was bound and gagged. She managed to write a sign in lipstick saying, "Help me please," which she shoved out the trunk's crack. Passing motorists saw the sign, jotted the license plate number and reported it to the Beavercreek Police Department outside Dayton, Ohio. They traced the plate to Brewer and called him at work at an appliance store, only he wasn't there. He had taken Sherry to a small, secluded farm lane in Greene County. Passing cars scared him off and he left.

When Brewer stopped in at work at about 7 p.m., Sherry alive in his trunk, co-workers mentioned police were looking for him. He returned the police officers' call, but played it off as a prank he pulled with a hitchhiker. Still officers insisted on checking out his car in person. Brewer conceded, and said he'd be at the station in about an hour. Brewer took that time to drive back to the farm lane, where he killed Sherry and dumped her body in a ditch, prosecutors said. Before talking to the officer, Brewer slipped into the police station's bathroom and wiped any trace of blood on his hands and feet. Beavercreek police believed Brewer's hitchhiker story, cited him with inducing panic, and sent him home. Brewer left, collected Sherry's body and then went to his Dayton area home to bed, leaving her in his trunk. Byrne spent those same evening hours in a panic. He knew when Sherry didn't come home that something had happened. The story began to unravel when he called the Brewers and Cathy Brewer said she wasn't pregnant and hadn't seen Sherry that day. Her husband had not yet come home. Because Sherry had not been missing 24 hours, Byrne could only make an unofficial missing persons complaint with the Springdale Police Department.

FRIDAY, MARCH 22, 1985: Byrne made an official missing person's report and a group organized to pass out fliers with Sherry and Beau's picture. Brewer called and expressed concern. He admitted he talked to Sherry that morning, but said she didn't seem like herself. Byrne never considered that Brewer might have done something - even when Brewer asked if he was a suspect.

SATURDAY, MARCH 23, 1985: Brewer hid Sherry in a storage locker then visited her husband. He hugged his friend and Sherry Byrne's mother. It would be the last time the two men saw each other until the trial. Later that day, Joe Byrne found a card Sherry had left for him tucked inside their Bible. "I miss you more today than yesterday," it said.

SUNDAY, MARCH 24, 1985: Byrne went to church. "I talked to God like I have never done before, begging Him for a miracle, to help Sherry to be alive," he said. By this time police began to theorize that maybe Sherry had been cheating on him, something Joe insisted wasn't true.

MONDAY, MARCH 25, 1985: Springdale police interviewed Joe, then turned their attention to David Brewer. In 30 minutes they caught Brewer in three lies, each version more absurd than the last. When they left Brewer alone with his wife, he confessed. He led police to the Franklin storage unit where Sherry's body was and took police to the place where he killed her. The knife was still there.

TUESDAY, MARCH 26, 1985: Two officers, accompanied by a priest, went to the Byrne's house. They didn't have to say anything. "I fell to me knees crying as I knew that Sherry was dead," he said. "My world was crushed." A Greene County grand jury indicted Brewer on charges of kidnapping and aggravated murder with death penalty specifications. Later that year Brewer's case went trial. Brewer testified that he never meant to harm Sherry and planned to let her go eventually. But when he released her from the trunk she screamed and ran away. "I just lost control," he said during the trial. "It's even hard for me to remember what happened. I was just trying to her quiet. I just lost control."

Cincinnati Enquirer

"Brewer Executed," by Sharon Turco. (AP April 29, 2003)

LUCASVILLE - David Brewer, who brutally attacked and murdered a young Springdale bride in 1985, was put to death by lethal injection this morning at the Southern Ohio Correctional Facility. The time of death was 10:20 a.m.,prison officials said.

Brewer, 44, killed Sherry Byrne after she apparently rejected his amorous advances. Just months before, Byrne had married a fraternity brother of Brewer's and settled in Springdale, where they planned to raise a family. Brewer, also married, lived in Centerville, Ohio, and managed a rental appliance company. He had lured the 21-year-old Byrne to a Sharonville motel on a ruse, then beat her, sexually assaulted her, abducted her and, eventually, stabbed her 15 times on a rural Greene County road. He later led police to her body at a storage locker and confessed. He pleaded innocent by reason of insanity and was convicted of aggravated murder and kidnapping.

Brewer's execution was the seventh in Ohio since 1999, the year the state resumed executing inmates after reinstating the death penalty in 1981. The U.S. Supreme Court had declared the death penalty unconstitutional in 1972, saying it was applied too arbitrarily. Monday night, Brewer dined on fried chicken, macaroni and cheese, apple pie and root beer, said Andrea Dean, spokeswoman for the Ohio Department of Rehabilitation and Corrections. He visited with his family members, then had a restful night, she said. He was awakened at 6 a.m., and had Rice Krispies and water for breakfast, Dean said.

Outside the Lucasville prison, the Rev. Neil Kookoothe, associate pastor of St. Clarence Roman Catholic Church in North Olmsted, Ohio, arrived early today to set up poster boards that protesters have brought to every execution since Ohio resumed the death penalty in 1999. The posters had laminated lists of every inmate on Ohio's death row, with those who have died in red. He didn't expect the busloads of schoolchildren who had appeared at executions earlier this year. "The protests are taking place locally," Kookoothe said.

Friday, Gov. Bob Taft denied Brewer's request for clemency. Defense attorneys had argued that Brewer deserved mercy because he had no criminal record before the slaying and has been a model prisoner. The death was to be witnessed by Byrne's mother, Myrtle Kaylor of Dayton, Ohio, and Byrne's husband, Joe, now remarried and living in New Jersey with his wife and three children. Greene County Prosecutor William Schenck, who prosecuted Brewer, also planned to attend the execution, at Joe Byrne's request. (The Associated Press contributed to this story. )

Ohio Death Row - Executions

Ohioans to Stop Executions


"Brewer Executed for Rape and Murder of Friend's Wife," by Robert Anthony Phillips. (April 29, 2003)

LUCASVILLE, Ohio -- A man who confessed to the horrific rape and murder of the wife of his former college fraternity brother was executed Tuesday morning by lethal injection at the state prison. David Brewer, 44, had led police to the body of Sherry Bryne, 21, who he had lured to a motel, raped, kidnapped and murdered on March 21, 1985. There were no last-ditch appeals to attempt to stave off his execution. Brewer was pronounced dead at 10:20 a.m. Brewer ordered a last meal that included fried chicken, macaroni and cheese, apple pie and root beer soda. Brewer went to the death house at the Southern Ohio Corrrectional Facility shortly after 10 a.m.

Brewer used his final statement to claim there were "innocent" persons on death row - but he wasn't one of them. "Just that I'd like to say to the system in Ohio, as far as the death row inmates are concerned, there are some that are innocent," Brewer said. "I’m not one of them. But there are plenty that are innocent. I hope the state recognizes that. That’s all I have to say."

'Help Me, Please'

Brewer arranged to meet Byrne at the Red Carpet Inn located in Sharonville, saying he and his wife had stereo speakers for sale. When Byrne arrived, Brewer’s wife, Kathy, was not at the motel. Brewer, a former appliance salesman from the Dayton area, then raped and beat Byrne, forcing her into the trunk of his car. Brewer then drove for several hours. While inside the trunk, Byrne managed to write "Help me please" in lipstick on a piece of paper and shove it through the trunk. Several motorists saw the sign and reported the license plate of the vehicle to police.

Body in Storage

After finding out the police were looking for him, Brewer stabbed and strangled the victim and left her body in a ditch in a farming area. He would later return to put Byrne’s body in the trunk of his car. He later moved the body, again, to a storage facility in Franklin. Brewer later led police to the body. An autopsy revealed that Byrne had been stabbed numerous times and her throat cut. At his trial, Brewer claimed that he never meant to kill Byrne and planned to let her go. However, when he let her out of the trunk of his vehicle and she screamed and ran away, Brewer said he "lost control."

Brewer had been denied clemency by Gov. Gov. Bob Taft. Brewer became the second condemned killer executed in Ohio in 2002 and the seventh since 1999, when executions resumed in the state. On Feb.12, Richard Fox, 47, was executed for the 1989 murder of woman in Wood County.


"David Brewer Executed." (AP April 29, 2003)

LUCASVILLE Ohio (AP) - A man was executed Tuesday for kidnapping his friend's wife, stuffing her in the trunk of his car, and strangling and stabbing her when she tried to escape. David Brewer, 44, was executed by injection at 10:20 a.m. Authorities said Brewer, 44, sexually assaulted and beat Sherry Byrne, 21, in a motel room on March 21, 1985, after luring her there on the pretense of meeting him and his wife, Cathy. He then abducted her and drove around with her in the trunk of his car for several hours. By the time authorities traced the license plate to Brewer, he had killed Byrne after she tried to escape in Beavercreek, a Dayton suburb about 40 miles northeast of the motel.

Brewer confessed to killing Byrne and told police her body was in a rented storage locker in nearby Franklin. He pleaded innocent by reason of insanity and was convicted of aggravated murder and kidnapping Brewer's execution was the seventh in Ohio since 1999, the year the state resumed executing inmates after reinstating the death penalty in 1981. The U.S. Supreme Court had declared the death penalty unconstitutional in 1972, saying it was applied too arbitrarily.

On Friday, Gov. Bob Taft denied Brewer's request for clemency. Defense attorneys had argued that Brewer deserved mercy because he had no criminal record before the killing and has been a model prisoner. Brewer, who lived in Centerville, near Dayton, and managed a rental appliance store, was a former fraternity brother of Byrne's husband, Joe Byrne. Brewer later told police he was attracted to his friend's wife. Authorities said after sexually assaulting and beating Byrne in the motel room, he abducted her and drove around with her in the trunk of his car for several hours.

Police said passing motorists had reported seeing a piece of paper with "help me please" written in lipstick shoved through the crack in the trunk of a car. Brewer told police where to find Byrne's body. Police said she had been beaten, choked with a necktie and stabbed 15 times.

Joe Byrne never went back to the home he and his wife, a cosmetics saleswoman, had bought in the Cincinnati suburb of Springdale, hoping to have their first child there. He moved into his parents' home in Middletown. Overcome with grief, he was unable to return to his old job. Joe Byrne sold his house, keeping only a few items, including a basketball jersey that his wife had slept in. He remarried in 1987 and took a job as a financial executive with a paper company in New Jersey the following year, trying to escape the memories. He said he still suffers on the anniversary of his first marriage, Byrne's birthday and the day she was killed.

State of Ohio v. David M. Brewer, Ohio App. 2 Dist.1 (WL 339940 Jun 14, 1996) (PCR)

Defendant, David Brewer, appeals from the trial court's order dismissing his petition for post-conviction relief. In 1985, Defendant was convicted of two counts of aggravated murder with death specifications and was sentenced to death. Defendant's conviction and death sentence was affirmed on direct appeal. State v. Brewer (1990), 48 Ohio St.3d 50 On June 3, 1991, Defendant filed a petition pursuant to R.C. 2953.21 seeking post-conviction relief. The trial court granted the State's motion for summary judgment and dismissed Defendant's petition on August 2, 1993. Defendant appealed to this court. We affirmed the trial court's judgment.

On July 18, 1995, Defendant filed a second petition for post-conviction relief. As grounds for relief Defendant claimed ineffective assistance of trial counsel based upon an alleged conflict of interest. According to Defendant, the defense attorney who represented him during his capital trial was employed part-time as an assistant Ohio Attorney General at the time, and defense counsel did not disclose to the Defendant the potential conflict of interest resulting from counsel's part-time employment. Defendant's conflict of interest claim was not previously been presented to the trial court in his earlier post-conviction petition. On September 28, 1995, the trial court held an evidentiary hearing on this claim for relief. At the conclusion of that hearing, the trial court ruled from the bench that Defendant had failed to demonstrate that he had suffered any adverse effects as a result of defense counsel's representation. On October 4, 1995, the trial court issued the following judgment entry dismissing Defendant's petition for post-conviction relief:

This matter came before the Court on the 28th day of September, 1995, for an evidentiary hearing upon Defendant-Brewer's Petition to Vacate or Set Aside Sentence. After hearing the evidence presented and considering the arguments of counsel the Court hereby finds that the Defendant's Petition is without merit. Defendant's Petition to Vacate or Set Aside Sentence is hereby dismissed.

Defendant has timely appealed from the trial court's dismissal of his second petition for post-conviction relief, arguing that the trial court was required to enter findings of fact and conclusions of law when it dismissed his post- conviction petition, and that in any event the trial court should have granted his request for post-conviction relief due to defense counsel's conflict of interest. For the reasons which follow we find no merit in these arguments and will affirm the judgment of the trial court.

State v. Brewer, 549 N.E.2d 491 (Ohio 1990). (Direct Appeal)

Defendant was convicted of aggravated murder and was sentenced to death. The Court of Appeals, Greene County, affirmed, and defendant appealed. The Supreme Court, Herbert R. Brown, J., held that: (1) prohibition against use of victim impact statements in sentencing phases of a capital trial under the Supreme Court's decision of Booth v. Maryland applies only in jury tried cases, not to bench trials; (2) testimony of homicide victim's husband concerning content of victim's telephone conversation with defendant, that according to victim she was going to meet defendant and defendant's wife at motel to celebrate defendant's wife's pregnancy, was admissible to show why victim went to defendant's motel, and admission of other statements defendant made to victim at same time was not reversible error; and (3) State established aggravating circumstance that defendant committed aggravated murder while also committing kidnapping, and such circumstance outweighed mitigating circumstances. Affirmed.

At about 10:15 on the morning of Thursday, March 21, 1985, Sherry Byrne called her husband Joe and told him that she was going to the Red Carpet Inn in Sharonville, north of Cincinnati, to meet appellant, David Brewer, and his wife Kathy. Appellant and Joe were boyhood acquaintances and college fraternity brothers, and the two couples saw each other socially. *51 According to Sherry, appellant and his wife were at the motel to celebrate Kathy's pregnancy, and to deliver a set of stereo speakers which appellant had promised Joe.

Sherry and her dog arrived at the motel sometime before noon that morning. Appellant was there alone, having told his wife that he would be in Cincinnati for the day on business. Appellant and Sherry engaged in sexual intercourse. Appellant testified at trial that Sherry was a willing partner. However, he made statements to police officers suggesting that Sherry may not have been willing, or might have been intimidated by his size. According to appellant, Sherry expressed guilt about what had happened. They left the motel and drove in his car to a park "to talk about it." Sherry was upset and threatened to tell her husband. He put her in the trunk of his car because he "couldn't handle it" and because he "could not get her to calm down."

He maintained throughout that she voluntarily got into the trunk. He then drove to a less populated area north of Cincinnati where he opened the trunk and tried to convince Sherry not to tell her husband or his wife. He bound her feet with speaker wire, closed the trunk again, and drove to another location. After another conversation, he locked her in the trunk once more and returned to the motel in Sharonville. There he moved **494 Sherry's car from the motel parking lot to a place about a block away. He then took Sherry to a park in Mason, drove around and unlocked the trunk twice, trying to convince her not to tell her husband. He then drove back toward Sharonville, stopping at a convenience store to release the dog. The dog was later recovered in Mason. The dog's license tag was missing. Appellant returned to the motel and checked out at around 4:30 p.m. He then went to the Remco store on Linden Avenue in Dayton ("Remco"), where he was employed as a manager. He was in the store about ten minutes. When he came out, he heard Sherry pounding on the lid of the trunk. Appellant went to a nearby drugstore and bought some tape "for bondage." Appellant told police officers that he used the tape to bind Sherry's hands, but he denied this at trial.

Appellant then drove through the Beavercreek and Sugar Creek areas and proceeded southeast toward Wilmington, stopping once for gas and several times to attempt to persuade Sherry to stop pounding on the trunk lid. Several witnesses saw a hand holding a piece of paper through a gap in the trunk seal with the words "HELP ME PLEASE" written in what appeared to be lipstick. These people called law enforcement authorities. Patrol officers searched for the car. The Beavercreek police also ran a computer check of the license number. They called appellant's home and Remco. They visited the Remco store to search for appellant's car.

After buying gas a second time, appellant drove north toward Xenia. At the Cattlemen's Inn on U.S. Route 35, he stopped and made a pay phone call to Remco. One of the employees told appellant that the police were looking for him "about the way you were driving." Appellant then drove to a remote area near Factory Road, where he stopped between 7:30 and 8:00 in the evening. Appellant opened the trunk, but closed it quickly when a car drove by. Appellant left the area when the car returned. Appellant returned to Remco at about 8:00 and called the Beavercreek police. He spoke with Sergeant *52 Richardson, who told him to come to the station that night and bring his car. Appellant said he would be there in about a half hour. Appellant stayed at Remco for about ten minutes, then left in his car. He stopped a short distance away and opened the trunk to tell Sherry he would let her go in a remote area. Appellant then went back to the Factory Road area.

When appellant opened the trunk, he claimed that Sherry got out, slapped him, and ran. Appellant caught her and choked her, first with his hands and then with a necktie. Appellant went back to his car and got a butcher knife. He stabbed Sherry several times, then slashed her throat. Leaving Sherry's body in a roadside ditch, appellant drove to the Beavercreek police station. He went into a restroom to wash blood from his shoes and hands. He then spoke with the officers, who asked about the "HELP" sign that had been seen sticking out of his trunk. Appellant said he had picked up a female hitchhiker, and had been riding around with her. He explained the sign as a prank suggested by the hitchhiker, whom he said he could not identify. The Beavercreek police cited appellant for inducing panic and released him.

Appellant returned to the Factory Road area and placed Sherry's body in the trunk of his car. He stopped by Remco to call his wife, telling her he would be home soon. He then went home and went to bed. In the meantime, Joe Byrne became concerned when his wife failed to come home. He called Kathy Brewer, who told him she had not seen Sherry that day, was not pregnant, and knew nothing about any stereo speakers. Joe notified the police and filed a missing persons report. Accompanied by a friend, he drove around the Sharonville area that night looking for Sherry or her car. The friend later found Sherry's car where appellant had left it.

The following day, appellant placed the body in a sleeping bag and drove to Franklin. He rented a self-storage locker, purchased a padlock, and left Sherry's body. Appellant cleaned his car at a car wash and went to work at Remco. Later that morning, appellant called Joe Byrne. Appellant asked Joe if the police considered appellant to be a suspect. The following evening, appellant and Kathy visited Joe at his home to console him. Joe believed that "someone who knew both of us" was responsible for Sherry's disappearance, and appellant expressed a fear that this same person might want to "get" Kathy. The following Monday, appellant was called by the Springdale Police Department to come in for questioning. Appellant was interviewed by Officer David Koenig, Lieutenant Ronald Pitman, and Detective Augustus Teague. The interview began at 6:43 that evening and lasted until 2:25 the following morning. There were, however, numerous interruptions, so that the total time of questioning was slightly less than three hours. The entire interview was tape recorded.

Appellant, though told he was not in custody, was fully advised of his Miranda rights. In the interview, he gave several stories to the police. At first, he claimed only to have called Sherry from a pay phone to tell her about the stereo speakers. When asked about the "HELP ME PLEASE" sign hanging out of his trunk, appellant repeated, with some embellishments, the hitchhiker story he told the Beavercreek police. When questioned about discrepancies in his story, appellant admitted that he had lied. He revealed that he met Sherry at the motel. He claimed that Sherry was fearful because she had been getting obscene phone calls and was being followed by a mysterious stranger. According to this story, he last saw Sherry at the motel. At 10:47 p.m., the officers took a break from interviewing appellant. Appellant wanted to speak to his wife. The police approached Kathy Brewer and told her "there were numerous problems in the interview with her husband * * *." Kathy became hysterical and was taken to the hospital. She returned to the station at about 2:00 a.m., accompanied by her father and brother. In the intervening hours, the police searched appellant's car pursuant to a written waiver signed by appellant, but had no other contact with him.

Upon her return, the officers asked Kathy to speak with her husband. They told her that they would observe the meeting through a two-way mirror. Detective Teague testified that Kathy was also informed that the officers would be able to listen to their conversation. Kathy went into the interview room alone and spoke with appellant for a few minutes, while the officers, Kathy's father and brother listened and watched through the two-way mirror. This conversation (wherein appellant admitted killing Sherry) was not recorded or introduced into evidence at trial. Kathy came out of the room and told the officers that appellant wanted to speak to them again. Detective Teague restarted the tape recorder at about 2:15, and appellant confessed to the killing. He told where he had hidden Sherry's body. Later that morning, appellant led officers to the scene of the killing. While in the car, appellant, after indicating his awareness of his Miranda rights, gave further details. He gave additional statements to the Beavercreek police later that day.

The police recovered Sherry Byrne's body from the storage locker. The Hamilton County Coroner's office performed an autopsy. The autopsy revealed that Sherry's killer had attempted to strangle her, which caused fractures of her hyoid bone and of her spinal cord at the seventh cervical vertebra. The deputy coroner testified that the attempted strangulation did not kill her, but would have left her partially paralyzed. There were multiple stab wounds to her chest and abdomen and a slash across her throat inflicted with a butcher knife. There were bruises on her chest "caused by a blunt injury," bruises on her arms "consistent with defense wounds," bruising in her pelvic area, which may have been caused by "forcibl[e] thrust[ing]" of a man's body on top of her, and a knife wound to her right hand.

On March 28, 1985, appellant was indicted by the Greene County Grand Jury on **496 one count of aggravated murder during the commission of a kidnapping, R.C. 2903.01(B) and one count of aggravated murder with prior calculation and design, R.C. 2903.01(A). Each count carried two specifications of aggravating circumstances: commission of the offense while committing or attempting to commit kidnapping, R.C. 2929.04(A)(7) and commission of the offense in order to escape detection, apprehension, trial or punishment for another offense, R.C. 2929.04(A)(3). Appellant pled not guilty and not guilty by reason of insanity. The insanity plea was withdrawn before trial. Appellant waived his right to a jury and elected to be tried by a three-judge panel. Appellant was found guilty on both counts and all specifications on September 19, 1985.

A hearing on mitigation and imposition of sentence was held on October 16, 1985.