State v. Davie, Not Reported in N.E.2d, 1995 WL 870019 (Ohio App. 1995). (Direct Appeal)

MAHONEY, J.

Defendant-appellant, Roderick Davie, appeals from the judgment of the Trumbull County Court of Common Pleas convicting him of two counts aggravated murder with specifications of four aggravating circumstances, two counts of felony murder with specification of four aggravating circumstances, one count attempted murder with specification of a firearm possession, three counts of kidnaping, two counts of aggravated robbery, and one count of aggravated burglary; and from the judgment imposing the penalty of death.

Upon a thorough review of the record and in consideration of appellant's twenty-nine assignments of error, this court affirms appellant's convictions. After independently reweighing the aggravating circumstances and the mitigating factors, this court further affirms the imposition of the penalty of death.

I.

On July 1, 1991, appellant was indicted on ten counts: Counts 1 and 2 alleged the aggravated murder of John Ira Coleman and Tracey Jefferys (a.k.a. Tracy Jefferys), respectively, in violation of R.C. 2903.01(A); Counts 3 and 4 alleged the aggravated murder of John Ira Coleman and Tracy Jefferys, respectively, in violation of R.C. 2903.01(B); Count 5 alleged the attempted aggravated murder of William J. Everett in violation of R.C. 2923.02 with a firearm possession specification pursuant to R.C. 2941.141; Counts 6, 7, and 8 alleged the kidnapping of John Ira Coleman, Tracey Jefferys, and William J. Everett, respectively, in violation of R.C. 2905.01(A)(2) and (3); Counts 9 and 10 alleged the aggravated robbery of Tracey Jefferys and William J. Everett, respectively, in violation of R.C. 2911.01(A) and (B). Counts 1 through 4 were accompanied by specifications of multiple victims pursuant to R.C. 2929.04(A)(5), kidnapping pursuant to R.C. 2929.04(A)(7)), aggravated robbery pursuant to R.C. 2929.04(A)(7), and aggravated burglary pursuant to R.C. 2929.04(A)(7). Each count was based on an incident that occurred on June 27, 1991.

On March 2, 1992, a jury trial commenced, and the following facts were adduced from the testimony at trial. In December 1990, William J. Everett was employed as a truck driver for the Veterinary Companies of America (“VCA”) at its warehouse located at 860 South Main Street, Warren, Ohio, which distributes dog food and pet supplies to veterinarians. Everett often socialized with the other VCA employees including appellant who had been employed as a warehouse worker but was fired in April 1991.

Sometime around 7:00 a.m on June 27, 1991, Everett arrived at the warehouse and was let in by the secretary, Tracey Jefferys. The entrance to the VCA building was secured by a locked gate, a locked main door, and a locked interior door with a buzzer. Around 7:20 a.m., the other truck driver, John Ira Coleman, arrived at work and was also let in by Jefferys. By that time, Everett had begun loading his truck parked at one of the three loading docks located off the warehouse.

Around 7:30 to 7:35 a.m., Everett saw appellant in the warehouse, and they talked briefly. Everett finished loading the truck and walked into the lunch room to review the invoices for the day scheduled deliveries. The lunch room was an enclosed room with doors accessing both the warehouse and the offices. While in the lunch room, Everett heard someone come up from behind him. When he turned around, he saw Jefferys standing next to him, crying and shaking, and appellant holding a gun. Everett described the gun as a black revolver with a four to six inch barrel and as either a .38 or .357 caliber.

Appellant told Jefferys and Everett to go into the warehouse. Jefferys and Everett complied and stopped right outside the lunch room. Thereafter, appellant told Jefferys and Everett to “get down” on the floor and yelled at Coleman who was loading his truck to join them. When Coleman came over, appellant told them to lie face down on the floor. After the three complied, appellant said, “So, you all work for VCA, huh?” and then there were gunshots.

Everett was struck in the back of the head, left shoulder, and left arm. Despite these injuries, Everett heard Jefferys get up and run and appellant start running after her yelling, “Come here, bitch.” Appellant returned with Jefferys, and Everett heard him say to Coleman, “So you ain't dead yet, huh, brother,” followed by another shot.

Thereafter, appellant walked over to Everett and took his wallet out of his left rear pocket. Everett heard appellant unload the gun and tell Jefferys, “You're lucky, I'm out of bullets.” Once again, he heard Jefferys start to run followed by a squeak from the opening of the lunch room door. Everett heard appellant run after her, and Jefferys start to scream. After three or four minutes, the screaming stopped, and Everett got up and saw appellant standing with his back toward him in the doorway of one of the offices. Everett made his way out of the building through one of the loading docks to the VCA parking lot. At no time did Everett see or hear anyone else in the warehouse other than appellant, Jefferys, and Coleman.

While Everett was in the VCA parking lot, he was seen by Donna Smith who was driving by on her way to work. Smith saw Everett stumbling in the parking lot with blood all over his shirt. Smith also saw a black man coming out of the building and running around the front of a truck parked near the loading docks. Smith and Sandra Alough, another driver who was passing by, stopped their cars. As they were attempting to reach Everett who had made his way to the sidewalk, they saw a truck pull out of VCA's parking lot and drive straight at Everett. Everett who had also seen the truck managed to go across the street and jump over the end of the bridge. The truck hit the side of the bridge and stopped.

The driver got out, walked over to the bridge, and looked over the side. After a few moments, the driver turned around and stared at Smith and Alough who were standing about forty yards away. After about fifteen seconds, the driver jumped over the bridge. Smith described the driver as a thin, young, black man of medium height who was wearing a short sleeve, light colored shirt, dark pants, and dark shoes. Smith later identified the driver in a photographic line-up as appellant. Everett, who had been sitting against the wall of the bridge, saw appellant jump over the bridge. Appellant began to strike Everett with a stick, but Everett managed to get the stick from him. Appellant found a larger stick and began hitting Everett again. Suddenly, appellant stopped, looked up at the top of the bridge, and left the area.

Smith and Alough who had been standing at the top of the bridge left to summon help, but someone had already called the police. As Smith and Alough were going back to the bridge, Officer Michael Albanese arrived. Smith showed Officer Albanese the location where Everett went over the bridge, and they heard him say, “I'm under here.”

Officer Albanese went down to help Everett who was weak and bleeding. Officer Albanese asked Everett if he knew who shot him, and he heard the name “Robert Davis,” so he gave out that name over the police radio. When Officer Albanese asked Everett again who shot him, Everett told him, “Roderick Davies,” with whom he had worked at the VCA, and Officer Albanese corrected the name on the police radio. Everett also told Officer Albanese that two more people had been shot at the VCA. Shortly thereafter, an ambulance arrived, and Officer Albanese proceeded to the VCA with another

officer. The officers found Coleman's body in the warehouse and Jefferys' body in the lunchroom. An autopsy of Coleman's body showed that he died immediately from five bullet wounds: Two in the back of his head, one in the back of his neck, and two in the upper portion of his right thigh. An autopsy of Jefferys' body showed that she had multiple lacerations about the face and head, multiple skull fractures, lesions to her back and legs, and defensive lesions of both forearms. The coroner determined that these wounds were caused by blunt force trauma inflicted while she was still alive.

A metal folding chair and a coffee maker were found next to Jefferys' body in the lunch room. Hairs removed from both the coffee maker and chair were found to match those of Jefferys. A bloody fingerprint found on the base of the folding chair was identified as that of appellant's and was believed to have been made at the same time the blood came in contact with the chair. The officers also found several overturned bookcases and debris on the floor of one of the offices, and a broken window adjacent to the interior entrance door.

Inside the truck cab, the police officers found a .38 caliber Smith and Wesson with three spent shells inside the gun. The gun was determined to be operable, and was identified as the gun that fired the spent shells found between the dumpster and the VCA building, the bullet recovered from Coleman's body, and the bullet found on the floor of the VCA warehouse.

At around 8:30 a.m., Carl Miller, chief bailiff for the Warren Municipal Court, received a telephone call from Dwayne Thomas, a.k.a. Styx, indicating that he had some information regarding the murders at the VCA and that he and appellant were at appellant's house at 436 White Court. Miller who had known Styx for about five or six years believed him to be reliable. After the telephone call, Miller went to the VCA warehouse where he informed Captain Timothy Downs about the conversation with Styx. The two men proceeded to 436 White Court. Appellant was advised of his Miranda rights and arrested. Styx was placed in the police cruiser along with appellant. As the police cruiser was backing out of White Court, appellant asked Captain Downs if they could drive by the VCA warehouse, but he denied appellant's request.

At the police station, Sergeant Mark A. Massucci took a statement from Styx. Based on the information given by Styx, Sergeant Massucci went with Styx to his house which was also located on White Court. In a wooded area behind Styx's house, they found a plastic bag containing a pair of LA Gear, brown and black suede shoes, a blood stained T-shirt, a pair a blue jeans, and a blood stained, green, short sleeved shirt. The blood found on the clothing was determined to be consistent with Jefferys' blood. Inside the pockets of the blue jeans, there were several items including a checkbook belonging to Jefferys and some .38 caliber spent shells. It was later determined that these spent shells had been fired from the gun found in the truck.

Later that day, two detectives went over to 436 White Court to talk with Sonya Barnes, appellant's girlfriend and mother of his two year old daughter. With Barnes' consent, the detectives searched the house and found a black pouch belonging to Jefferys in plain view on the kitchen table. Barnes' father found a wallet belonging to Everett on the top of the refrigerator.

In a statement given to the police, Barnes stated that appellant came home before 8:00 a.m. that morning wearing “a green like khaki green short sleeve shirt, with a red T-shirt under it, and jeans.” Appellant told her, “I'm in trouble. Some people have been shot,” and then he said he shot them. Thereafter, appellant took a shower and put some of his clothing in a plastic bag which he took outside.

At trial, Barnes testified that “appellant told [her] to say that he did it, for reasons unknown to [her].” Barnes also testified that after appellant came back inside the house, Styx came over carrying a checkbook in his hand and that Styx asked appellant if he wanted to take some money out of it, but appellant declined and Styx kept the checkbook. Barnes also claimed that Styx asked appellant if he had any money and that when appellant said, “No,” Styx pulled a .38 revolver on him. According to Barnes, appellant told Styx that he would have to kill Barnes too, and Styx put the gun down at his side and then made two phone calls including his call to Miller. Barnes testified that when appellant and Styx were taken away in the police cruiser, she did not see the black pouch on the table or the wallet on the refrigerator.

Appellant testified that he went to the VCA around 7:00 a.m. on June 27, 1991 to see if he could borrow some money from Jefferys and Everett to pay Styx the money that he owed him for a drug deal gone bad. Appellant claimed that on several occasions including the previous night, Styx had threatened him, Barnes, and his daughter if he did not repay the money. When he arrived at the VCA, appellant claimed that Jefferys let him into the building, and he spoke to her about borrowing some money. Appellant also claimed that he spoke to Everett about borrowing money and that when he finished speaking to him, he went into one of the offices where he found Jefferys and Styx. Styx who was holding a gun handed it to appellant and told him to take Jefferys and Everett out to the warehouse while he looked for some money in the office. Appellant complied and ordered Coleman to join them and lie face down on the ground. At that time, Styx came out of the office and told appellant that he could not find any money. Appellant handed Styx the gun, and went into the office. According to appellant, he heard gunshots and saw Jefferys run into the office with Styx running behind her carrying a coffee maker. Appellant went to help Jefferys, but Styx pointed the gun at him and told him to stay out of it. Appellant went back into the offices where he could hear

Jefferys screaming, and then he heard silence. When appellant walked back into the lunch room, he saw Jefferys lying on the floor. He picked the chair off of her, determined that she was not breathing, hugged her and then laid her down. Then, he took Jefferys' car keys which were lying on the lunch room table and drove home.

Following the testimony at the guilt phase, the jury returned a verdict of guilty on all counts and specifications listed in the indictment. Counts 3 and 4 were removed from the jury prior to the commencement of the penalty phase in response to the state's motion to dismiss these counts. On March 19, 1992, the penalty phase commenced on Counts 1 and 2 and on the four specifications as to each count. After the mitigation evidence was presented, the jury recommended that a sentence of death be imposed on appellant for each count.

On March 25, 1992, the trial court held that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt as to both Counts 1 and 2, and accordingly sentenced appellant to death on Count 1 and sentenced appellant to death on Count 2. Appellant was also sentenced to an indeterminate period of incarceration of seven to twenty-five years on Count 5 with three years actual incarceration to be served prior to and consecutive with the principal sentence and to an indeterminate period of incarceration of ten to twenty-five years each on Counts 6, 7, 8, 9, 10, and 11. The trial court ordered all sentences to be served consecutively to each other and all terms of imprisonment be actual incarceration. Appellant filed a timely notice of appeal, and now presents the following twenty-nine assignments of error for review:

“1. The trial court erred in intimidating a prospective juror and overruling the appellant's motion to supplement the annual jury list with names drawn from Trumbull County residents holding a valid driver's license. “2. The trial court erred in its handling of the appellant's presence in the courtroom and mischaracterization of appellant's statement. “3. Admission of certain photographs was an abuse of discretion. “4. It is error for the prosecutor to repeatedly engage in improper argument and comments throughout the trial. “5. The trial court erred in repeatedly allowing the prosecutor to comment that the appellant had an expert witness which the appellant did not have testify. “6. The trial court erred in admitting into evidence statements of the appellant. “7. The trial court erred in not suppressing the identification testimony of Donna Smith. “8. The trial court erred in not allowing the use of a questionnaire to prospective jurors. “9. The trial court erred in repeatedly instructing the jury that its verdict was only a recommendation. “10. The trial court erred in allowing the appellee to use peremptory challenges to exclude any prospective juror who expressed reservation about the death penalty. “11. The trial court erred in the admission of ‘other acts' testimony. “12. It is a violation of Evid.R. 607 to allow the prosecutor to impeach his own witness. “13. The trial court's instructions during the trial phase were erroneous. “14. The trial court erroneously instructed the jury during the trial phase. “15. R.C. 2901.05 violates the due process clause of the fourteenth amendment. “16. The trial court erred in not granting a Crim.R. 29 motion to dismiss. “17. The admission of exhibit 2 and 3 (photographs of Tracey Jefferys and John Coleman), as well as character and background of Everett, Coleman and Jefferys, was error. “18. The trial court erred in changing the verdict form after the jury rendered its verdict. “19. The trial court erred in limiting the admission of mitigation evidence. “20. The trial court erred in admitting evidence of non-statutory aggravating circumstances. “21. The trial court erred by not complying with R.C. 2929.03. “22. The trial court violated R.C. 2929.41 in its sentencing of the appellant. “23. The appellant was denied the effective assistance of counsel. “24. The conviction and sentence herein are against the manifest weight of the evidence. “25. The multiplicative indictment and the repetitive use of the felony allegations violated the appellant's constitutional rights. “26. The trial court was improperly prevented from deciding whether death was the appropriate punishment. “27. The Ohio statutory scheme concerning the imposition of the death penalty is unconstitutional. “28. This court cannot find that after reviewing all of the factors of R.C. 2929.05(A) that death was the appropriate sentence for Roderick Davie. “29. The trial court erred in not allowing the appellant to be present for the hearing before a trial court to correct a record.”

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THIRD ASSIGNMENT OF ERROR

“Admission of certain photographs was an abuse of discretion.”

In his third assignment of error, appellant asserts that the admission of inflammatory and gruesome photographs, slides, diagrams, and a video tape violated his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and by Section 9, 10 and 16, Article I, of the Ohio Constitution. Appellant argues that the inflammatory and cumulative nature of this photographic evidence outweighed any probative value because the cause of death was uncontested with the admission of the coroner's report and testimony.

At the outset, we note that the Supreme Court of Ohio in State v. Slagle (1992), 65 Ohio St.3d 597, stated that: “As a general rule an appellate court will not consider an alleged error that the complaining party did not bring to the trial court's attention at the time the alleged error is said to have occurred. * * * Crim.R. 52(B) softens the general rule forbidding our consideration of unobjected-to errors. The rule provides that: ‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.’ This rule allows the appellate court * * * to consider a trial error that was not objected to when that error was ‘plain error.’ ” Id. at 604.

In reviewing for plain error, the reviewing court must consider all the evidence at trial and determine whether the alleged error substantially affected the outcome of the trial and influenced the jury to enter a verdict that it would not have otherwise entered if the error had not occurred. Id. at 605.

As to the admission of photographic evidence, the Supreme Court of Ohio in State v. Maurer (1984), 15 Ohio St.3d 239, set forth the following evidentiary standard for the introduction of photographic evidence in capital cases: “Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.” Id. at paragraph seven of the syllabus. See, also, Slagle, 65 Ohio St.3d at 601-602; State v. Morales (1987), 32 Ohio St.3d 252, 257-258.

“[T]he mere fact that a photograph is gruesome or horrendous is not sufficient to render it per se inadmissible[,]” nor is a photograph automatically rendered inadmissible because the accused stipulates to the cause of death. Id. at 265. “The trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused it discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere.” State v. Hymore (1967), 9 Ohio St.2d 122, 128. See, also, Maurer, 15 Ohio St.3d at 625; Slagle, 65 Ohio St.3d at 601; State v. Landrum (1990), 53 Ohio St.3d 107, 121. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.* * * ” (Citations omitted.) State v. Adams (1980), 62 Ohio St.2d 151, 157-158.

In the instant case, the trial transcript indicates that six of the nineteen proposed slides taken during Coleman's autopsy and fifteen of the thirty-one slides taken during Jefferys' autopsy were admitted by the trial court. However, in the record before this court, there are seven slides relating to Coleman's autopsy and fourteen slides relating to Jefferys' autopsy; the same number cited in appellant's brief. The seven slides of Coleman depict each of the three wounds on the back of his head and neck, the two wounds on his right leg, an abrasion on his left shoulder, and the two bullets extracted from his body during the autopsy. None of the Coleman slides were gruesome or repetitive.

As to the Jefferys slides, six slides depict the bruising and abrasions over her knees, hands, wrists and elbows. Six slides depict multiple gapping lacerations over her head; one large laceration on the back of her head, one on the left side of her head, three on the top of her head, one over her left eyebrow, one near her right eye, and one near her right ear. The two remaining slides depict a facial view of Jefferys from slightly different distances and show several head lacerations and profound bruising.

After the trial court eliminated the other slides, appellant objected to the admission of the No. 2 Jefferys' slide arguing that it was repetitive of slide No.1. The trial court overruled his objection stating that “[o]ne shows both sides of the injury to the brow area and the other picture shows just the one side.” However, none of the slides in the record before this court are numbered and, thus, we cannot determine the slide to which appellant made his objection. Notwithstanding, we must conclude that the slides depicting the multiple lacerations on Jefferys' head as well as the two facial views are gruesome and that the two slides depicting Jefferys' face are repetitive in nature.

The record reflects that there are seven diagrams depicting the location and size of the wounds on both Coleman's and Jefferys' body. Two of the diagrams depicted Coleman's body and the base of his skull, and the remaining five depicted Jefferys' body, head, and the base of her skull. The wounds were marked in red ink. Appellant offered no objection to the admission of these diagrams, and we conclude that the diagrams were neither gruesome nor repetitive.

The record also indicates that both the slides and the diagrams were used to illustrate the coroner's testimony concerning the injuries and cause of death of each victim and were probative with regard to showing intent and deliberation on the part of appellant.

According to the trial transcript, it indicates that thirty-one, three by five photographs were admitted into evidence. Of those thirty-one photographs, appellant cites to twenty-five photographs. Four photographs depict the bruising and abrasions over Jefferys' wrists, knees, and forearms, and are repetitive of some of the Jefferys' slides but are not gruesome. Seven photographs depict Everett under the bridge and the wounds located on his head, neck, face, left shoulder, torso, and left arm. None of these photographs are gruesome or repetitive.

The remaining fourteen photographs depict the crime scene at the VCA warehouse. Concededly, several of these photographs are gruesome as they show both Coleman and Jefferys as they were found in the VCA warehouse. Appellant only objected to the crime scene photographs marked as exhibits No. 46 and No. 35 as being repetitive of previous photographs. The trial court overruled his objection.

We agree that the photographs are not repetitive of each other. Both pictures depict Jefferys' head and torso, but one is taken while she is lying prone and the other while she is lying supine. We also conclude that none of the remaining crime scene photographs are repetitive of each other. The record indicates that all of the photographs were used to illustrate the testimony of the state's witnesses, and are of probative value in assisting the jury to understand the condition of Coleman and Jefferys at the murder site and the culpability of the appellant.

A videotape was admitted into evidence and represents the redacted version of an original videotape objected to by appellant. Appellant did not object to this redacted version. The redacted videotape depicts the crime scene from 8:25 a.m. to 11:05 a.m., and includes views of the bridge, the truck and its interior, the gate around the VCA warehouse, the two entrance doors, the broken window, the offices, the interior of the warehouse, the lunchroom, and the dock area. The videotape also shows the locations of both Coleman and Jefferys before and after their bodies were removed and is repetitive in that regard to some of the crime scene photographs. It is clear that several of the views are gruesome including the views of the victims and the blood stains located throughout the warehouse. However, it is also clear that the videotape was illustrative of the testimony of the state's witnesses concerning the crime scene and probative of the location of the victims in relation to the interior of the warehouse.

In sum, we determined that two of the slides were repetitive of each other and that some views in the videotape were repetitive of the crime scene photographs. However, we also determine that all of the gruesome photographic evidence was of distinct probative value in assisting the jury to determine the issues, and this probative value outweighed the material prejudice to appellant. Thus, we cannot conclude that the trial court's admission of this evidence was unreasonable or arbitrary.

Accordingly, appellant's third assignment of error is without merit.

FOURTH ASSIGNMENT OF ERROR

“It is error for the prosecutor to repeatedly engage in improper argument and comments throughout the trial.”

In his fourth assignment of error, appellant asserts that he was denied his rights to a fair trial, due process, and a reliable determination of his guilt and sentence as guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I, of the Ohio Constitution when the prosecutor repeatedly engaged in improper argument and comment throughout the trial.

The prosecutor's remarks alleged to be improper include five categories: (1) comments aligning himself to truth and justice; (2) repeated references to the gruesomeness of the crime and use of gruesome photos to appeal to the jury's emotions; (3) comments denigrating appellant and his trial counsel; (4) comments expressing his personal belief and opinions; and (5) improper statements of the law.

As to claims of prosecutorial misconduct, “[t]he test * * * is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.” State v. Brown (1988), 38 Ohio St.3d 305, 316, citing State v. Smith (1984), 14 Ohio St.3d 3, 4. Moreover, the prosecutor's argument must be viewed in its entirety to determine whether the remarks were prejudicial. State v. Byrd (1987), 32 Ohio St.3d 79, 82.

In the first category, appellant argues that in the opening statement, the prosecutor began to align himself with “truth and justice” with statements such as: “ * * * as prosecutor representing the people of Trumbull County * * *. “In our system of justice, the best system in the world * * *. “ * * * so truth and justice will be served in our opinion.”

Appellant argues that the prosecutor continued to align himself with truth and justice in closing arguments of the guilt phase with the comment, “A beacon for all human kind to follow, the greatest system ever on this good earth,” and in closing arguments of the penalty phase with the following comments: “You are the conscience of the community. What you do affects the quality of life that we have. “Otherwise we'll have chaos. There's going to be a lot more dead people around if we don't have the laws followed and obeyed.” Appellant further argues that these comments were improperly made in an attempt to inflame the jury and sentence him based on a fear for their own safety and on some misplaced duty to the community.

The general rule is that both parties are granted some latitude in making their arguments before the jury. State v. Byrd (1987), 32 Ohio St.3d 79, 82. However, arguments that are made to incite a jury to convict based upon public demand rather than the facts proven beyond a reasonable doubt under the applicable law, are contrary to the basic rights of the accused and, thus, constitute prejudicial error. See State v. Davis (1978), 60 Ohio App.2d 355; State v. Agner (1972), 30 Ohio App.2d 96.

After reviewing the record, we note that there was no objection at the time these comments were made and, thus, must be reviewed for plain error. Concededly, some of the prosecutor's comments, particularly those made in closing arguments in the penalty phase, raise some question as to whether those comments appeal to considerations not relevant to appellant's guilt or innocence or the penalty to be imposed. However, when we view these comments in the context of their respective arguments, we conclude that the outcome of the trial was not affected by these comments.

In the second category of comments, appellant argues the prosecutor repeatedly focused on the horror of the crime rather than the evidence during his arguments. Appellant cites to the following comments made in opening statements:

“ * * * while he engaged in his mass murder attempt of that day. “Coleman had no chance. Three right into the brain. Absolutely no chance. “ * * * after he pummels the victim to death * * *. “ * * * Dwayne Thomas saw and smelled the blood.” Appellant also cites to the following comments made during closing arguments in the guilt phase and the penalty phase, respectively: “This is the way the victims looked before he got to them, and that is what we're clear about. This isn't an intellectual game of being cute. “ * * * and this is before the supposedly blood loss defense. It's malarkey. “ * * * you will have a slide projector if you need to go through those terrible, terrible photographs of Tracey. “Every part of her body was bruised, contused, cut and lacerated. “How does Roderick [ sic], probably just like he is now, when he's turning himself in for shooting people, very calm, very relaxed, very cooperative. “Seldom does a Jury have this much evidence and because of the evidence and the brutality of this case, I submit from the evidence, guilty of all of the aggravated murders, and all of the specifications. This Defendant, from the evidence, on the Richter scale of crimes, is off the scale.” and “In short, this Defendant is eligible for the death penalty eight times over. “ * * * sometimes you get what you deserve.”

Appellant argues that the prosecutor also used these comments along with the gruesome photographs to further direct the jury's attention on the brutality of the crime and, thus, inflame its emotions. We disagree.

“ ‘ * * * [A] conviction based solely on the inflammation of fears and passions, rather than proof of guilt, requires reversal * * *.’ ” State v. Beuke (1988), 38 Ohio St.3d 29, 33 quoting State v. Williams (1986), 23 Ohio St.3d 16, 20. Similar prosecutorial comments made during the penalty phase can require reversal if such statements inflame the jury and influence it to render a more severe recommendation than it otherwise would have made. Maurer, 15 Ohio St.3d at 267-268.

A review of the record again indicates that appellant did not object to the prosecutor's comments and, thus, his argument will be considered under a plain error standard. We concede that the prosecutor's statements and the use of photographs during arguments had the inherent danger of appealing to the emotions of the jury. However, when most of these statements and the photographs presented are viewed in the context of the entire argument, it is apparent that such statements were predicated on the evidence before the jury.

In the third category of statements, appellant argues that the prosecutor denigrated him and his trial counsel in closing arguments with the following statements in the guilt phase: “ * * * the Defense has been classical. It's the wait and see defense. “The Defense has waited and has seen from the evidence what the State had * * *. “This isn't an intellectual game of being cute. “ * * * and this is before the supposedly blood loss defense. It's malarkey. “ * * * another part of the smoke screen justice in this case. “If you can believe that, honestly, I think that maybe, just maybe, Roseanne can sing the National anthem. It's absolutely ridiculous.”

Appellant argues that the prosecutor continued to denigrate him and his counsel with the following statements in the penalty phase: “ * * * he has no empathy-boy, he doesn't have any feelings or conscience. “ * * * we first had the mistaken identity plot, and then we get into now, the post-concussion syndrome, come on. “He's a sociopath. He doesn't feel. He doesn't have a conscience.”

Appellant argues that these unwarranted remarks undermined the integrity of his trial counsel in the eyes of the jury and deprived him of the effective assistance to which he was entitled.

We agree with appellant that it is improper for a prosecutor to denigrate defense counsel in the jury's presence because the prosecutor carries the prestige of a government representative whose role is to seek justice, and “[c]onsequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” State v. Keenan (1993), 66 Ohio St.3d 402, 406, quoting Berger v. United States (1935), 295 U.S. 78, 88.

However, it is apparent from the record that appellant only objected to the prosecutor's statements that “ * * * the Defense has been classical. It's the wait and see defense.” The trial court sustained this objection but only as to the phrase “classical defense” and stated that it found nothing else objectionable because the objection was based on what appellant's counsel assumed the prosecutor was going to say. When this statement is viewed in the context of the entire argument, we conclude that the trial court's limitation of appellant's objection was reasonable and the prosecutor's characterization permissible because it was based on the evidence.

As to the remaining statements of the prosecutor alleged to be denigrating to both appellant and his counsel, we apply the plain error standard of review. Standing alone, many of these remarks give the appearance of impropriety. However, when read in context, we must conclude that they fall within the wide latitude afforded counsel for both parties in closing arguments and were based on the evidence.

In the fourth category of comments, appellant argues that the prosecutor improperly imposed his personal opinion in his closing argument to the jury in the penalty phase and cites to the following statements: “To me that's not mitigating. * * * I think that is not mitigating. I think there's very little weight to that. “We think we're right this time.”

It is well settled that prosecutors “may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence.” State v. Lott (1990), 51 Ohio St.3d 160, 166. However, it also recognized that due to the moral nature of the penalty phase, it is difficult for prosecutors to argue vigorously for the death penalty without making what might arguably be statements of personal opinion. State v. Tyler (1990), 50 Ohio St.3d 24, 41. Where the prosecutor's opinion is based on the evidence presented at trial, such opinion is not improper. Id.; State v. Stephens (1970), 24 Ohio St.2d 76, 83.

It is apparent from the prosecutor's remarks that he was interjecting his personal opinion as to one of the mitigating factors alleged by appellant. However, upon review of these remarks in context of the argument, it is also apparent that his remarks were based on the evidence presented at trial. Moreover, since appellant did not object to these remarks, we apply a plain error standard of review and conclude that such remarks did not deny appellant a fair trial.

In the last category of statements, appellant argues that the prosecutor argued the law improperly to the jury with the following comments: “In short, this Defendant is eligible for the death penalty eight times over.* * * “ * * * “ * * *The first count, John Coleman, committed with prior calculation and design, and a specification of mass murder and multiple murders.* * * “ * * *But what does he do? And this takes a considerable period of time. This course of conduct to take human life, and also after repeatedly beating this poor woman to death. Then attempts two other times to kill John Everett. That is aggravating circumstances. “ * * * “ * * * kidnaped these people, and by gunpoint, terrorized them. That is aggravating circumstance.”

Appellant argues that the prosecutor improperly implied that certain factors were aggravating circumstances including mass murders and multiple murders, the beating of Jefferys, the two attempts to kill Everett, and the use of a gun.

A review of the record indicates that appellant objected to the prosecutor's comments regarding the beating and two attempted murders, and the trial court specifically overruled this objection. The record also indicates that appellant's counsel objected to the statement regarding the mass murders and multiple murders but later stated to the court that there was no formal objection. However, since the record reflects an objection, we will treat the matter as if it had been preserved for review by this court. As to the remaining statements, appellant did not object and, thus, will be reviewed for plain error.

R.C. 2929.04(A) provides in pertinent part: “Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment * * * and proved beyond a reasonable doubt: “ * * * “(5) * * * the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender. “ * * * “(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, * * * aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder * * *.”

Thus, “[t]he manner of killing is not a statutory aggravating circumstance [,]” and the introduction of nonstatutory circumstances is error. Landrum, 53 Ohio St.3d at 112.

As to the prosecutor's statement that “[t]he first count, John Coleman, committed with prior calculation and design, and a specification of mass murder and multiple murders,” it is clear from the entire argument that the prosecutor was using the terms synonymously, and the use of a conjunctive rather than a disjunctive was an isolated misstatement. However, to the extent that this misstatement implied that these were two different aggravating circumstances, the trial court's instruction to the jury to consider the law as given to them by the court remedied any detriment to appellant.

In response to appellant's objection to the prosecutor's statement referring to appellant's course of conduct which involved repeated beatings of Jefferys and two attempts to kill John Everett, we agree that it is hardly a model of clarity as to what was being referenced as aggravating circumstances. Any implication that the two attempts to kill John Everett were aggravating circumstance was proper pursuant to R.C. 2929.04(A)(5) as being part of appellant's alleged course of conduct. However, the manner in which Jefferys was murdered was not a statutory aggravating circumstance, and any implication derived from the prosecutor's statement in that regard was improper. Yet, any prejudice to appellant that may have come from such improper implication was remedied by the trial court's instructions regarding the aggravating circumstances as to each count of aggravated murder and the application of law to it as given by the court.

As to the two remaining statements to which appellant did not object at trial, we find that these statements did not rise to the level of plain error. Reviewing the prosecutor's statement regarding appellant's eligibility for the death penalty eight times over in context of the entire argument, it is apparent that the statement was made to argue that the strength of any one of the four separate aggravating circumstances relating to each of the two counts of aggravated murder was sufficient enough to overcome the mitigating factors and, thus, was not improper. When the prosecutor's statement regarding the kidnapping is similarly reviewed in context, it is apparent that the kidnappings were the aggravating circumstances that the prosecutor was referring to in the statement.

Accordingly, appellant's fourth assignment of error is without merit.

FIFTH ASSIGNMENT OF ERROR

“The trial court erred in repeatedly allowing the prosecutor to comment that the appellant had an expert witness which the appellant did not have testify.”

In his fifth assignment of error, appellant asserts that the trial court erred in permitting the state to repeatedly comment on the fact that his expert witness did not testify and thereby denied him of his rights to a fair trial under both the United States and Ohio Constitutions. More specifically, appellant argues that the prosecutor made three comments about the failure of his expert to testify in violation of Crim.R. 16(C)(3). The first comment occurred during the direct examination of the state's witness, Dale Laux, who is a Bureau of Criminal Identification (“BCI”) forensic scientist and is contained in the following exchange: “Q. And I take it all of this evidence was returned to the Warren Police Department? “A. That's correct. “Q. And was there a time that the Defendant and his expert or experts were given some of the evidence for evaluation? “A. Yes.” The second and third comments occurred during the prosecutor's closing arguments in the guilt phase and are as follows: “Sergeant Carahan. What a job. What a job. He introduced well over 100 Exhibits in this case, and what does the Defense want to talk to him about? Shadows, which way the sun came up. ‘Detective, did you tell BCI to print or examine the coffee pot handle?’ They had their own expert. They had their expert, and he was at BCI, but he wasn't here. “ * * * “Mr. Lewis throughout all BCI's testimony wants to make a point of what BCI didn't do. What didn't they do. What didn't they do. He had an expert, and he wasn't here.”

Appellant objected to the latter comment, and the trial court instructed the jury that “[y]ou, of course, are to consider the evidence in this case, and not to speculate on anything that was not presented to you, so in that regard, I'll allow you to proceed[.]” After reviewing the record, we conclude that the trial court's discretion in allowing the prosecutor's comments was sound.

Crim.R. 16(C)(3) provides in part: “The fact that a witness' name is on a list furnished under subsection (C)(1)(c), and that the witness is not called shall not be commented upon at the trial.”

In State v. Hannah (1978), 54 Ohio St.2d 84, a majority of the Supreme Court of Ohio held that any comment upon the absence of testimony from a witness named on the witness list is a clear violation of Crim.R. 16(C)(3). “Subsequent decisions interpreting Hannah have held that Crim.R. 16(C)(3) is applicable only where the ‘uncalled witness' had been supplied to the opposing side during the discovery process. * * * Where the witness mentioned is not on the list or there was no discovery list, counsel may comment on any absent witnesses.” (Citations omitted.) Jackson v. Howell (1993), 86 Ohio App.3d 497, 500.

A review of the record in the instant case indicates that appellant had filed a motion seeking appointment of a forensic expert to review, inspect and re-analyze the physical evidence previously analyzed by the BCI or in the BCI's possession and that the motion was granted by the trial court. However, there is no evidence in the record that appellant provided the state with a witness list bearing the appointed expert's name or that the state requested such a list in the course of discovery. Appellant's motion is not the equivalent of a witness list as contemplated by Crim.R. 16(C)(1). Thus, Crim.R. 16(C)(3) does not apply, and the prosecutor's comments were not improper.

In any case, appellant did not object to the prosecutor's first two comments and, thus, waived the issue absent plain error. In light of the entire record, we are not convinced that the alleged errors were so prejudicial that the outcome of the trial or sentencing would have been otherwise had they not occurred. Similarly, there is no abuse of discretion in permitting the prosecutor's third comment. See Adams, 62 Ohio St.2d at 157-158.

Accordingly, appellant's fifth assignment of error is without merit.

SIXTH ASSIGNMENT OF ERROR

“The trial court erred in admitting into evidence statements of the appellant.”

In his sixth assignment of error, appellant asserts that the trial court erred in admitting three of his statements that he made to the police. Appellant argues that he did not voluntarily, intelligently and knowingly waive his rights against self-incrimination as provided under both the United States Constitution and the Ohio Constitution. More specifically, appellant argues that he repeatedly stated that he did not wish to sign the “Waiver of Rights” line on the form and that he did not wish to make a statement during the first interview, but the police continued in their inquiry in the two subsequent interrogations and, thus, failed to scrupulously honor his requests.

The record before this court indicates that when appellant was brought into the police station, he was placed in an interview room along with Lieutenant Carl Blevins and Detective Morris Hill, read his Miranda rights, and given a form containing three sections. The first section requested an initial or signature after each statement expressing his constitutional rights against self-incrimination, and appellant initialed each statement. The second section requested an initial or signature to expressly waive the constitutional rights listed in the first section, but appellant neither signed nor initialed the waiver line. The third section contained an area for two witnesses' signatures and appellant's signature, and both were completed. An atomic absorption test was performed on appellant by Lt. Blevin and Det. Hill, and then appellant was left alone in the interview room.

At 9:59 a.m., Lt. Blevin and Det. Hill reentered the interview room and again advised appellant of his Miranda rights. Appellant was told that he was being questioned regarding a shooting that occurred that morning on South Main Street. After several questions, Lt. Blevin asked appellant about his refusal to sign the waiver section on the form and whether he wanted to make a statement. Appellant responded that it did not matter to him and stated, “I didn't refuse you said I didn't have to if I didn't want to.” Lt. Blevin then asked him if he wanted to make a statement and if not, the interview would be over. Appellant responded, “No statement,” and the interview was terminated. According to Lt. Blevin, appellant did not ask to see counsel.

Thereafter, Lt. Blevin notified Det. Charles Sines of appellant's refusal to sign the waiver of rights line. About two hours later, Det. Sines and Det. Sergeant Gary Vingle initiated contact with appellant to determine if he was willing to talk with them again, and appellant agreed. At 12:15 p.m., appellant was read his Miranda rights and given another form in which he again acknowledged his understanding of his rights and signed the form but did not sign the waiver of rights line. When asked by Det. Sines whether he wanted to answer some questions despite his failure to sign the waiver of rights line, appellant said, “Yes.” The interview was tape recorded by Det. Sines and concluded at 12:35 p.m. At no time during the interview did appellant request to see a lawyer.

At around 2:00 p.m., Det. Vingle learned that appellant wanted to talk with him again. Appellant was brought to the interview room and readvised of his Miranda rights. Appellant was given another form to sign and again initialed his understanding of his constitutional rights and signed his name at the end of the form but did not sign or initial the waiver of rights line. When questioned about whether he wanted to initial the waiver line, appellant said, “It don't matter, do it.” Appellant was also asked if he was willing to talk to Det. Sines and Det. Vingle, and he responded, “Right.” In the tape recorded interview, appellant confessed to the shootings at the VCA.

The trial court granted appellant's motion to suppress his statement made in the first interview stating that the state had failed to show by a preponderance of the evidence that appellant had knowingly, intelligently and voluntarily waived his constitutional rights. The trial court denied appellant's motion to suppress his statements made during the second and third interviews determining that despite his failure to sign the waiver of rights line, appellant had knowingly, voluntarily, and intelligently answered questions during the second and third interviews and that he had initiated the third interview which indicated his desire to talk.

In Miranda v. Arizona (1966), 384 U.S. 436, the United States Supreme Court recognized that custodial interrogations by their very nature produce “compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. Thus, the Court set forth certain specific warnings and procedures to protect a person's constitutional right against compulsory self-incrimination when he is subject to custodial police interrogation. A person can waive these constitutional rights, but “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475.

“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” ( Emphasis added.) North Carolina v. Butler (1979), 441 U.S. 369, 373. See, also, State v. Scott (1980), 61 Ohio St.2d 155.

The inquiry as to whether a waiver is made voluntarily, knowingly and intelligently is two-fold. “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine (1986), 475 U.S. 412, 421.

When a person exercises his right to remain silent by requesting that the questioning be cut off, the police must respect that person's exercise of that option and cease the interrogation. However, the police are not indefinitely prohibited from further interrogation. Michigan v. Mosley (1975), 423 U.S. 96, 102-103. Rather, the police may again seek to interview the person and “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Id. at 104.

After applying the above law to the facts in the instant case, we have no doubt that appellant waived his right to remain silent during the second and third interviews and that his right to cut off questioning in the first interview was fully respected. There is no evidence in the record that the police resorted to any physical pressure, coercion or deception to elicit appellant's statements. In fact, appellant initiated the third interview which led to his confession. There is also no doubt that appellant was effectively and adequately apprised of his Miranda rights. Moreover, his initials and signature on the forms, his tape recorded statements, and his cooperation during the interviews are evidence that he understood his rights and the consequences of relinquishing them. Based on the totality of these circumstances, it can be clearly inferred from appellant's actions and words that he voluntarily, knowingly, and intelligently waived his right to remain silent during both the second and third interviews.

Furthermore, appellant's statements made during the second and third interviews were not rendered inadmissible by his exercise of his right to remain silent during the first interview. When appellant stated that he did not want to make a statement during the first interview, Lt. Blevin and Det. Hill honored appellant's request and immediately ceased the interview. After more than two hours, appellant was questioned by two other officers and he was again read his Miranda rights at the outset of the second interview. Appellant was reminded of his right to remain silent and to consult a lawyer but instead agreed to answer questions. Similarly at the outset of the third interview, appellant was read his Miranda rights and given the opportunity to cut off the questioning. Thus, the dictate of Miranda and the goals of the constitutional protection against the use of compelled testimony were fully satisfied in the circumstances of this case.

Appellant also argues that the police officers failed to advise him of the cause of his arrest as required under R.C. 2935.07 and failed to immediately charge him as required under R.C. 2935.05. The trial court determined that there was no violation of either section. We agree.

R.C. 2935.07 provides that “[w]hen an arrest is made without a warrant by an officer, he shall inform the person arrested of such officer's authority to make the arrest and the cause of the arrest.” “Where probable cause exists for an arrest by a police officer, the failure to notify the accused of the cause of his arrest does not render the arrest illegal if he is notified of the offense with which he is charged soon after he is taken into custody.” State v. Fairbanks (1972), 32 Ohio St.2d 34, paragraph four of the syllabus.

In the instant case, Capt. Downs arrived at White Court and placed appellant under arrest sometime after 8:30 a.m. on June 27, 1991. Although appellant was not told why he was arrested at that time, he was informed during the first interview at 9:05 a.m. when Lt. Blevins told him that he was being investigated as a suspect in the shootings that occurred that morning on South Main Street. Thus, pursuant to Fairbanks, appellant was advised of the cause of his arrest, and there was no violation of R.C. 2935.07.

Additionally, R.C. 2935.05 provides, in part, that “[w]hen a person * * * has arrested a person without a warrant, he shall, without unnecessary delay, take the person arrested before a court or magistrate having jurisdiction of the offense, and shall file or cause to be filed an affidavit describing the offense for which the person was arrested. * * * ”

In the instant case, an affidavit charging appellant with various crimes was prepared and appellant was taken before the trial court on June 28, 1991, one day after his arrest. Based on this evidence, we cannot conclude that there was any unnecessary delay. Accordingly, appellant's sixth assignment of error is without merit.

SEVENTH ASSIGNMENT OF ERROR

“The trial court erred in not suppressing the identification testimony of Donna Smith.”

In his seventh assignment of error, appellant asserts that the police used suggestive identification procedures and created an identification by Donna Smith that was not sufficiently reliable to prevent a substantial likelihood of misidentification. Appellant argues that this use violated his due process rights under both the United States Constitution and the Ohio Constitution.

The record before this court indicates that shortly after Donna Smith saw Everett stumbling across the VCA's parking lot, she saw a black man coming out of the building and running around the front of a truck parked near the docks. As she attempted to reach Everett, who had made his way to the sidewalk, she saw a truck pulling out of VCA's parking lot driving towards Everett and then crash into the bridge. After the driver got out of the car, he turned around and stared for about fifteen seconds at Smith who was standing about forty yards away.

After the police arrived, Smith conveyed what she had observed and was taken to the police station to give a statement. Smith described the driver as a thin, young, black man of medium height and wearing a short sleeve, light colored shirt, dark pants, and dark shoes. She was asked to view an array of six photographs of black males, including appellant's photo taken in January 1990, to determine the identity of the truck driver, and within less than a minute, she positively identified appellant.

On July 3, 1991, Smith was again asked to come to the police station and was shown another array of six photographs of black males, including appellant's photograph which had been taken on June 27, 1991. Again within less than a minute, Smith positively identified appellant as the driver of the truck and initialed the back side of the photograph. At that time, Smith informed Det. Sines that she had previously been shown an array of photographs on June 27, 1991 and had similarly identified appellant as the truck driver. Thereafter, Det. Sines presented Smith with the first array of photographs, and she again positively identified appellant as the driver and initialed the back of the photo.

At the suppression hearing, appellant argued that the first array of photographs were impermissibly suggestive because the men depicted in three of the photographs did not have a mustache or other facial hair and that two photographs with a mustache looked noticeably older in age than he. Appellant argued that the second array of photographs were also impermissibly suggestive because the number on appellant's picture was written in black ink while the numbers on the other photographs were written in blue ink. The trial court denied appellant's motion to suppress Smith's pre-trial identifications and held that there was no evidence that the manner in which either photographic arrays were conducted or the results obtained was unduly suggestive.

In Simmons v. United States (1968), 390 U.S. 377, the Supreme Court of the United States held that despite the hazards of initial identification by photograph, “each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384. To determine whether a pretrial identification of an accused was so unnecessarily suggestive and conducive to irreparable mistaken identification so as deny the accused of due process, the totality of the circumstances must be considered. Neil v. Biggers ( 1972), 409 U.S. 188, 196. Reliability is the linchpin in determining the admissibility of an identification made under suggestive and unnecessary police identification procedures, and the factors to be considered include the following:

“the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite (1977), 432 U.S. 98, 114.

“Whether a pretrial identification procedure is unduly suggestive and whether a witness's subsequent identification is nonetheless reliable under the totality of the circumstances are two separate inquires that should be approached sequentially[.]” United States v. Johnson (C.A.7, 1988), 859 F.2d 1289, 1294.

After reviewing the record, we are convinced that neither the two photographic arrays nor the manner in which they were conducted were so impermissibly suggestive as to create a substantial likelihood of misidentification. Both arrays of photographs depicted the front, facial view of six black men with the same hair color. In the first array, three of the men have mustaches, one of which is appellant. However, Smith never described appellant as having a mustache nor did she rely on the existence of a mustache to make her identification. Thus, the existence of a mustache was not impermissibly suggestive. Additionally, contrary to appellant's claim, the two other men with mustaches do not appear noticeably older so as to be suggestive.

In the second array of photographs, we note that different colored ink was used to number the photographs. However, we do not find this use of these two colors which are commonly interchanged to be impermissibly suggestive. Furthermore, the manner in which the photographic arrays were shown was not unnecessarily suggestive. Smith positively identified appellant in the first array and again in the second array. Exhibiting the first group again to Smith was not suggestive, but served to double check her first identification.

Even if we determined that the photographic pretrial identification was unnecessarily suggestive, the totality of the circumstances indicate a high degree of reliability in the identification. Smith had the opportunity to view appellant on a clear, sunny day from approximately forty yards. She examined him for about fifteen seconds as he stared at her from the bridge. Within one hour after she viewed appellant, she gave an accurate description of appellant and the clothes he was wearing, and she positively identified appellant from the photographic array within less than one minute. In less than one week after the incident, she again positively identified him from a second photographic array.

Accordingly, appellant's seventh assignment of error is without merit.

EIGHTH ASSIGNMENT OF ERROR

“The trial court erred in not allowing the use of a questionnaire to prospective jurors.”

In his eighth assignment of error, appellant asserts that the trial court's refusal to submit his questionnaire to prospective jurors infringed upon his due process rights and denied him a fair trial as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution. More specifically, appellant argues that the trial court's denial of his proposed juror questionnaire constituted an abuse of discretion because it restricted his counsel's ability to conduct an adequate voir dire examination of prospective jurors and, thus, deprived him of a fair and impartial jury.

In State v. Jenkins (1984), 15 Ohio St.3d 164, the Supreme Court of Ohio stated that “[t]he general rule is that the scope of the examination of prospective jurors is within the discretion of the trial court and the judgment will only be reversed upon a showing that the trial court abused its discretion in restricting the scope of voir dire.” Id. at 186. See, also, State v. Mills (1992), 62 Ohio St.3d 357, 365; State v. Bedford (1988), 39 Ohio St.3d 122, 129. As stated supra, the term abuse of discretion “connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.” Adams, 62 Ohio St.2d at 157-158.

The record in the instant case is devoid of a copy of the actual jury questionnaire given to prospective jurors which is necessary to conduct a meaningful review. Notwithstanding this absence, a review of appellant's proposed questionnaire shows that appellant sought general information from each prospective juror concerning himself/herself and his/her family. On its face, it is unclear how this questionnaire served to more effectively disclose biases and to enable his counsel to make intelligent exercises of either peremptory challenges or challenges for cause. Appellant fails to point to any specific provision in the proposed questionnaire to support this broad assertion. In fact, appellant admits that his proposed questionnaire was only slightly different from the actual questionnaire used. Furthermore, there is no evidence that appellant's counsel was precluded from asking any of the proposed questions during the voir dire proper. Thus, we cannot say that the trial court was unreasonable, arbitrary, or unconscionable in its refusal to submit appellant's proposed questionnaire.

Accordingly, appellant's eighth assignment of error is without merit.

NINTH ASSIGNMENT OF ERROR

“The trial court erred in repeatedly instructing the jury that its verdict was only a recommendation.”

In his ninth assignment of error, appellant asserts that the trial court erred when it instructed the jury in voir dire and in the penalty phase of the trial that its sentence was only a recommendation. Appellant argues that the trial court's instructions misled the jury about the importance of its role in the sentencing scheme and allowed the jury to delegate its responsibility to the trial judge and, thus, violated his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution. Appellant relies on Caldwell v. Mississippi (1985), 472 U.S. 320, wherein the United States Supreme Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” Id. at 328-329. *27 However, in State v. Durr (1991), 58 Ohio St.3d 86, the Supreme Court of Ohio stated that: “ ‘ Caldwell * * * is inapplicable where the statements made to the jury during the mitigation phase of a capital trial were accurate statements of the law and were not made to induce reliance on the appellate process.’ ” (Citations omitted.) Id. at 93. See, also, State v. Lorraine (1993), 66 Ohio St.3d 414, 426. R.C. 2929.03(D)(2) provides that: “Upon consideration of the relevant evidence * * * the trial jury * * * shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. * * * “If the trial jury recommends that the sentence of death be imposed upon the offender, the court shall proceed to impose sentence pursuant to division (D)(3) of this section. * * * ” ( Emphasis added.)

After reviewing the jury instructions given during both the voir dire and the penalty phase, we conclude that these instructions were within the constitutional limits and fostered the jurors' responsibility to act with due regard for the consequences of their decision to impose the sentence of death. The jury was given accurate information concerning the roles of the jury and the trial court in determining appellant's sentence and, thus, were in conformity with R.C. 2929.03. Furthermore, the jury instructions neither mentioned the appellate process nor induced the jurors to minimize their role by depending on the such process. Accordingly, appellant's ninth assignment of error is without merit.

TENTH ASSIGNMENT OF ERROR

“The trial court erred in allowing the appellee to use peremptory challenges to exclude any prospective juror who expressed reservation about the death penalty.”

In his tenth assignment of error, appellant asserts that the trial court erred in allowing the prosecutor to use peremptory challenges to exclude prospective jurors with some reservations about the death penalty. Appellant argues that this use violated his rights to equal protection and a fair and impartial jury as guaranteed under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 5, 10, and 16, Article I, of the Ohio Constitution.

More specifically, appellant argues that the prosecutor's use of peremptory challenges to exclude jurors Ann C. Davis and George Bonner who expressed reservations about the death penalty during voir dire but stated that they could follow the judge's instruction and the law caused the jury to be composed of jurors “organized to return a verdict of death.” Appellant argues that since jurors who express reservations cannot be excused for cause under Witherspoon v. Illinois (1968), 391 U.S. 510, unless his or her views on the death penalty would prevent or substantially impair his or her ability to perform his or her duties as a juror, the prosecutor should not be able to circumvent Witherspoon by using his peremptory challenges.

A review of the record in the instant case indicates that appellant failed to object to this at trial and preserve this error for review. Consequently, we will review for plain error. Slagle, 65 Ohio St.3d at 604.

In State v. Esparza (1988), 39 Ohio St.3d 8, the Supreme Court of Ohio stated that: “It is well-established that the Equal Protection Clause forbids the state's use of peremptory challenges to purposefully exclude ‘any identifiable group in the community which may be the subject of prejudice.’ Swain v. Alabama (1965), 380 U.S. 202, 205; * * * Batson v. Kentucky (1986), 476 U.S. 79. However, the prosecutor is entitled in any given case to a presumption that he ‘is using the State's challenges to obtain a fair and impartial jury to try the case before the court,’ * * * which may be rebutted by establishing the prosecutor's peremptory challenges resulted in systematic exclusion of such identifiable group from jury panels. * * * In Lockhart v. McCree (1986), 476 U.S. 162, 176-177, the United States Supreme Court held that prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors in a capital case, i.e., ‘Witherspoon-excludables,’ are not distinctive, identifiable groups for the requirement that a jury represent a fair cross-section of the community.* * * ‘The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.’ * * * ‘ “[I]t must be exercised with full freedom, or it fails at its full purpose.” ’ * * * ” (Citations omitted.) Id. at 13-14.

The Esparza Court concluded that peremptory challenges against prospective jurors based on death penalty views was proper. See, also, State v. Murphy (1992), 65 Ohio St.3d 554, 578; State v. Cook (1992), 65 Ohio St.3d 516, 518-519; State v. Evans (1992), 63 Ohio St.3d 231, 249; State v. Watson (1991), 61 Ohio St.3d 1, 10; State v. Seiber (1990), 56 Ohio St.3d 4, 13; State v. Lundgren (Sept. 1, 1993), Lake App. Nos. 90-L-15-140 and 91-L-036, unreported at 70-71.

Based on the foregoing, we cannot conclude that the prosecutor's use of peremptory challenges constituted a denial of his right to equal protection or a fair and impartial jury.

Accordingly, appellant's tenth assignment of error is without merit.

ELEVENTH ASSIGNMENT OF ERROR

“The trial court erred in the admission of ‘other acts' testimony.”

In the eleventh assignment of error, appellant asserts that the trial court erred in admitting “irrelevant and highly inflammatory” evidence of other acts at the guilt phase of his trial. More specifically, appellant argues that during his cross-examination, the trial court allowed the prosecution to question him about other unrelated acts for the sole purpose of portraying him as having a bad character in violation of Evid.R. 404(B) and R.C. 2945.59.

R.C. 2945.59 provides: “In any criminal case in which the defendant's motive or intent, * * * or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, * * * or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.”

Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Although R.C. 2945.59 and Evid.R. 404(B) must be strictly construed against admissibility, State v. Broom (1988), 40 Ohio St.3d 277, 282, a review of the record demonstrates that there is no merit to appellant's claimed error. Three of the alleged instances where the prosecutor questioned appellant about other acts were not for the purpose of portraying his bad character. Rather, the questions were asked to elicit information on a specific area that had been raised on direct examination. More specifically, appellant had been questioned on direct examination about problems he had at school including his expulsion from school, his relocation to California while his pregnant girlfriend remained in Ohio, and his termination from the VCA. On cross-examination, the prosecutor properly inquired into these areas as being within the scope of direct examination. Thus, neither Evid.R. 404(B) nor R.C. 2945.59 were applicable to prohibit such questioning.

In any case, appellant only objected to the prosecutor's questioning as to his problems at school and, thus, waived all but plain error as to the two other instances. In light of the entire record, we are not convinced that this alleged inflammatory questioning was so prejudicial that the outcome of the trial or sentencing would have been otherwise had it not occurred. Similarly, there is no abuse of discretion in allowing the questioning about his problems at school.

In the fourth instance, appellant was asked whether he stalked the VCA employees or had broken into their houses. Appellant's counsel objected to this question but did not ask the trial court to instruct the jury to disregard all inferences that could be drawn from it. The trial court properly sustained the objection apparently on the basis of Evid.R. 404(B). Thus, there was no error.

In the fifth instance, the prosecutor questioned appellant regarding his failure to support his daughter. This questioning, however, followed appellant's claim that he sold drugs for Styx to support his family. This claim was contrary to the prosecutor's claim that Barnes, his girlfriend and mother of his child, had to collect welfare to support the child. From the context of the questioning, it is apparent that the prosecutor was attempting to attack appellant's character for truthfulness which was placed in issue when he took the stand. Evid.R. 608. Furthermore, since appellant failed to object to this questioning, the issue was waived absent plain error. In light of the entire record, we conclude that this questioning did not contribute to either appellant's conviction or sentence.

Accordingly, appellant's eleventh assignment of error is without merit.

TWELFTH ASSIGNMENT OF ERROR

“It is a violation of Evid.R. 607 to allow the prosecutor to impeach his own witness.”

In his twelfth assignment of error, appellant asserts that the trial court erred by allowing the prosecutor to impeach his own witness with a prior statement and thereby denied him of his rights to due process and a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I, of the Ohio Constitution.

At trial, the state called Barnes, appellant's girlfriend, to testify as a witness for the prosecution. Barnes testified that appellant told her to tell people that he did shoot Coleman and Jefferys. Barnes also testified that when appellant returned to the house after taking out the plastic bag containing his clothes, Styx came over carrying a checkbook in his hand and asked him if he wanted to take some money out of it. When appellant declined, Styx asked appellant if he had any money and pulled a .38 revolver on him.

The prosecutor claimed that these statements were inconsistent because none of these events were mentioned by Barnes in either her grand jury testimony or her statement given to police. The trial court allowed the prosecutor to use these prior statements in an attempt to impeach Barnes. Appellant argues that the statement was not inconsistent and that the state failed to show surprise and affirmative damage as required by Evid.R. 607 to allow it to impeach this witness.

This Court has held that: “ ‘not every omission during testimony of details contained in a witness's statement to police constitutes an inconsistency within the meaning of Crim.R. 16(B)(1)(g).’ State v. Armington (Dec. 30, 1988), Lake App. No 12-015, unreported at 12, citing State v. Hartford (1984), 21 Ohio App.3d 29, 31. ‘Certain details related to the police may naturally not be brought up on direct examination and some details omitted from a witness statement may naturally crop up for the first time at trial, and it is not appropriate to consider the omission of such details to be “inconsistencies.” ’ Hartford at 31.” State v. Morris (Dec. 30, 1994), Lake App. No. 93-L-157, unreported at 17-18.

However, in certain circumstances, more material omissions may constitute inconsistencies. Hartford at 31. The trial court is given broad discretion in determining whether an inconsistency exists, State v. Clay (1972), 29 Ohio App.2d 206, 212, and absent an abuse of discretion, an appellate court will not disturb the trial court's decision. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97.

In the instant case, it is clear that Barnes' testified at trial to events that were omitted from her statement to the police and her grand jury testimony. It is equally clear that these events were material omissions. The implication of her statement to police and her grand jury testimony was that appellant had confessed to the murders and that Styx's involvement was limited to his efforts to convince appellant to turn himself into the police. In contrast, the implication of her testimony at trial was that appellant only confessed out of fear of Styx and that Styx was intricately involved in the murders. Thus, the omissions were properly determined to be material.

Additionally, Evid.R. 607 provides, in part, that: “The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.”

Under this rule, a party wishing to impeach his own witness with a prior inconsistent statement must first demonstrate that he was surprised by the witness' testimony and that the testimony affirmatively damaged that party's case. “Surprise can be shown if the testimony is materially inconsistent with the prior written or oral statements and counsel did not have reason to believe the witness would recant when called to testify.” State v. Stearns (1982), 7 Ohio App.3d 11, 15. The question of surprise is one within the broad discretion of the trial court. Ferguson Realtors v. Butts (1987), 37 Ohio App.3d 30, 33. Affirmative damage can be shown if the party's own witness' testimony contradicts, denies, or is harmful to that party's trial position. Stearns at 15.

As stated supra, Barnes' testimony at trial was inconsistent with her testimony before the grand jury and her statement to the police. Clearly, this inconsistency was material because it was adverse to the state's trial position. The state did not have any reason to believe that Barnes would recant or change her testimony at trial since she had given the same statement at grand jury as she did to the police on the day of the incident. Furthermore, Barnes' testimony was directly contrary to the state's trial position that appellant was solely responsible for the murders because it implied that Styx had been involved and had threatened appellant into taking the blame. Thus, the trial court's determination that the state has shown both surprise and affirmative damages was within its broad discretion, and the use of Barnes' prior inconsistent statements to impeach her at trial was proper pursuant to Evid.R. 607.

Accordingly, appellant's twelfth assignment of error is without merit.

THIRTEENTH ASSIGNMENT OF ERROR

“The trial court's instructions during the trial phase were erroneous.”

In his thirteenth assignment of error, appellant asserts that the trial court erred in instructing the jury that he could be convicted on less than an unanimous verdict and that its verdicts must be consistent. Appellant argues that these instructions denied him of his right to a fair and reliable determination of his guilt as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, Section 9, 10, 16, Article I, of the Ohio Constitution, and R.C. 2901.05(D).

As to the first alleged error in instructing the jury, the trial court instructed the jury as follows: “Aggravated murder as charged in the third Count of the indictment consists of purposely causing the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, aggravated robbery, and/or aggravated burglary. Before you can find the Defendant guilty of aggravated murder in Count 3, you must find beyond a reasonable doubt, one, that the Defendant purposely caused the death of John Ira Coleman, on or about June 27, 1991, in Trumbull County, Ohio. Two, you must find beyond a reasonable doubt, that the Defendant specifically intended to purposely cause the death of John Ira Coleman while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, aggravated robbery, and/or aggravated burglary.”

The trial court gave a similar instruction as to the aggravated murder of Jefferys charged in Count 4.

Appellant argues that these jury instructions did not specifically require the jurors to unanimously find that he had committed kidnapping, aggravated robbery, or aggravated burglary. Appellant cites to Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555, wherein the Supreme Court of the United States held that it is for the state courts to determine whether statutory alternatives are means of committing a single offense or constitute independent elements of the crime and, thus, argues that if the statutory alternatives constituted independent elements, their existence must be separately determined by the jury.

The state argues that R.C. 2903.01(B) provides alternative means of satisfying the actus reus element of felony murder and does not require the jury to determine which particular act underlies their finding of guilt. We disagree.

In Schad, the defendant challenged the constitutionality of an Arizona state statute which treated premeditation and commission of a felony as mere means of satisfying a mens rea element of high culpability rather than independent elements of first-degree murder. The Supreme Court of the United States held that the defendant's first-degree murder conviction was not rendered invalid under the due process clause by the trial court's failure to require the jury to agree whether the defendant was guilty of premeditated murder or felony-murder. Id. at 632, 111 S.Ct. at 2491, 115 L.Ed.2d at 574. In reaching its decision the Court stated that “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Id. at 631, 111 S.Ct. at 2497, 115 L.Ed.2d at 563, quoting McKoy v. North Carolina (1990), 494 U.S. 433, 449. The Court opined that: “ * * *If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. “ * * * “Decisions about what facts are material and what are immaterial, or, * * * what ‘fact[s][are] necessary to constitute the crime,’ and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. Respect for this legislative competence counsels restraint against judicial second-guessing * * * which is particularly appropriate in cases * * * that call state definitions into question.* * * ” (Citations omitted.) Id. at 636-638, 111 S.Ct. at 2499-2500, 115 L.Ed.2d at 568-569.

R.C. 2903.01(B) provides that: “No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape.”

Under this subsection, the legislature has determined that aggravated murder requires that: (1) The accused acted purposely; (2) to cause the death of another; (3) while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit; and (4) kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape. Thus, the underlying felony offense is an independent element of aggravated murder under R.C. 2903.01(B). The commission of each one of these felony offenses along with proof beyond a reasonable doubt as to the other three elements could sustain a separate conviction for aggravated murder. As such, the jury must find that appellant committed one or more felony offenses by proof beyond a reasonable doubt as to each to sustain a verdict of guilty on the charge of aggravated murder.

A review of the jury instructions given in the instant case indicates that the trial court failed to instruct the jury that they must determine beyond a reasonable doubt the felony offense which appellant had committed and, thus, failed to require them to find that the state had independently proven every element of the crime.

Notwithstanding this failure, appellant failed to object to these jury instructions as required under Crim.R. 30(A) and, thus, has waived this issue on appeal absent plain error. Slagle, 65 Ohio St.3d at 604. Under a plain error analysis, we are convinced by the overwhelming evidence of appellant's guilt that the outcome would not have been different had the jury not been instructed in this manner. The jury found appellant guilty of kidnapping, aggravated burglary, and aggravated robbery under Counts 6, 7, 8 and 9, 10 and 11, respectively, and we have determined under his twenty-fourth assignment of error, infra, that his convictions for aggravated robbery and aggravated burglary were supported by competent, credible evidence.

As to the second alleged error in instructing the jury, the trial court instructed the jury as follows: “Now, the verdicts returned by you should be complete and consistent. * * * “Let me call to your attention again, if you find the Defendant not guilty of the first count of aggravated murder, just as an example, further verdicts on the specifications are not necessary. You only go to the specification, if you make a finding of guilty on any of the five counts. If you have any doubt as to the consistency or completeness of your verdicts, after you have had an opportunity to arrive at one, and you wish to return to the courtroom, you should feel free to inquire of the Court as to the completeness or consistency of such verdicts.”

Appellant argues that this jury instruction required the jury to return verdicts that are consistent. We disagree. We read the instruction as charging the jury to be consistent within each verdict. Specifically, the jury was instructed that it should not go to the specification portion of the verdict form unless it finds that appellant was guilty on that particular count. We find no requirement in this instruction that the jury must return verdicts consistent with the other alleged counts. In any case, appellant failed to object to the instruction as given, and we are convinced that giving this instruction did not rise to the level of plain error.

Accordingly, appellant's thirteenth assignment of error is without merit.

FOURTEENTH ASSIGNMENT OF ERROR

“The trial court erroneously instructed the jury during the trial phase.”

In his fourteenth assignment of error, appellant asserts that the trial court erred in giving an “acquittal first” instruction to the jury during the guilt phase. Appellant argues that this instruction denied him of his rights to due process, a fair trial, and equal protection as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Section 9, 10, and 16, Article I, of the Ohio Constitution. The jury was instructed as follows: “Also, with regard to the third and fourth Counts, I'll now instruct you as to the lesser included offense of involuntary manslaughter. As I have previously stated, if you find that the State has proven beyond a reasonable doubt each and every essential element of the crimes charged in those Counts, then your verdict must be guilty as to that particular count. “If on the other hand, you find that the State has not proven beyond a reasonable doubt, each and every element of either or both of those Counts, then your verdict must be not guilty as to that particular Count; in that event, and only in that event, you will continue your deliberations to decide whether the State has proved beyond a reasonable doubt all of the essential elements of the lesser included offense of involuntary manslaughter as to that particular count.”

Appellant specifically argues that this instruction was biased in favor of conviction of the greatest charge and required the jury to unanimously find appellant not guilty of aggravated murder before it could consider the lesser included offense. We disagree.

In State v. Thomas (1988), 40 Ohio St.3d 213, the Supreme Court of Ohio held: “A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense.” Id. at paragraph three of the syllabus.

The instruction given in that case was as follows: “If you find that The State has proven beyond a reasonable doubt all of the essential elements of the crime of aggravated murder, then your verdict must be that the Defendant is guilty of aggravated murder; and you will not consider the lesser offense. “However, if you find that The State has failed to prove beyond a reasonable doubt the element of prior calculation and design, then your verdict must be that the Defendant is not guilty of aggravated murder. “You will then proceed with your deliberations and decide whether The State has proven beyond a reasonable doubt all of the essential elements of the lesser crime of murder.” Id. at 220.

The Thomas Court concluded that the jury instruction was not prejudicial because it did “not expressly require unanimous acquittal on the charged crime, but rather [addressed] possible disagreement by the jury on the element of prior calculation and design and a corresponding inability to reach a verdict of guilty of aggravated murder.” Id.

The instruction in the instant case, although ambiguous, did not constitute an acquittal first instruction. Under the Thomas analysis, the instructions did not expressly require the jury to unanimously find appellant not guilty of aggravated murder before it considered the lesser charge of involuntary manslaughter. Rather, the instruction emphasized the sequence of deliberation that the jury was to follow in considering the charges. More specifically, the jury was instructed to determine if the state had proven each element of aggravated murder beyond a reasonable doubt and if it was unable to reach a verdict of guilty, either unanimously or not, it could then proceed with its deliberation and consider the lesser offense. While the better practice would have been to include the inability of the jury to agree on the greater offense, we cannot conclude that appellant was prejudiced by the jury instruction as given.

In any case, appellant failed to object to the jury instruction as required by Crim.R. 30 and, thus, waived this issue on appeal absent plain error. Slagle, 65 Ohio St.3d at 604. In light of the overwhelming evidence of appellant's guilt, we are convinced that the jury would have convicted appellant even if the instruction had not been given.

Accordingly, appellant's fourteen assignment of error is without merit.

FIFTEENTH ASSIGNMENT OF ERROR

“R.C. 2901.05 violates the due process clause of the fourteenth amendment.”

In his fifteenth assignment of error, appellant asserts that R.C. 2901.05 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, appellant argues that the statutory definition of reasonable doubt reflects a clear and convincing standard which allows jurors to return a conviction and death sentence based upon a degree of proof below that required by the Due Process Clause. Appellant admits that during the guilt and penalty phases of the trial, the judge read the standard definition of “reasonable doubt” found in R.C. 2901.05(D) which provides: “ ‘Reasonable doubt’ is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”

Appellant argues, however, that the “willing to act” language in the fourth sentence of R.C. 2901.05 provided the jury with no guidance because it is too lenient. Additionally, appellant submits that the “firmly convinced” language found in the first sentence of R.C. 2901.05 is not reasonable doubt language but, instead represents only a clear and convincing standard.

A review of the transcript reveals, however, that appellant failed to object to the reasonable doubt instruction either at trial or during the mitigation phase. Appellant did, however, submit a proposed reasonable doubt instruction for the mitigation phase. Pursuant to Crim.R. 30(A), a party may not assign as error the giving or the failure to give any instruction unless the party objected at trial. Accordingly, to the extent that appellant failed to object to the aforementioned instructions, appellant has waived any potential error.

Notwithstanding this determination, the Supreme Court of Ohio has repeatedly upheld the validity of the statutory definition of reasonable doubt against constitutional challenge. State v. Nabozny ( 1978), 54 Ohio St.2d 195, 201-202; State v. Cooey (1989), 46 Ohio St.3d 20, 37; Murphy, 65 Ohio St.3d at 582. See, also, Lundgren, Lake App. Nos. 90-L-15-140 ad 91-L-036, unreported at 73.

Based upon the foregoing authority, R.C. 2901.05 does not violate the Due Process Clause of the Fourteenth Amendment. Accordingly, appellant's fifteenth assignment of error is without merit.

SIXTEENTH ASSIGNMENT OF ERROR

“The trial court erred in not granting a Crim.R. 29 motion to dismiss.”

In his sixteenth assignment of error, appellant asserts that the trial court erred by not granting his Crim.R. 29 motion for acquittal made at the close of the state's case, and renewed at the close of all the evidence. Specifically, appellant argues that the evidence presented by appellee was insufficient to sustain his conviction on the charge of aggravated burglary.

Appellant had been indicted on, inter alia, one count of aggravated burglary in violation of R.C. 2911.11(A)(2). The indictment provided that appellant did “ by stealth, trespass in an occupied structure, as defined in Section 2909.01 of the Revised Code, with the purpose to commit therein felonies, and said Roderick Derwin Davie, did have a deadly weapon * * * on or about his person or under his control.” (Emphasis added.)

R.C. 2911.11(A)(2) provides: “(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: “(1) * * * “(2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; * * * ”

Appellant argues that the state failed to demonstrate that he used stealth to gain entrance to VCA. We disagree. In reviewing a ruling on a Crim.R. 29 motion for judgment of acquittal, the reviewing court must construe the evidence most strongly in favor of the state. State v. Fyffe (1990), 67 Ohio App.3d 608, 613. The denial of the motion is proper if the evidence is “such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.” State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman ( 1978), 55 Ohio St.2d 261.

In the instant action, the state presented evidence that there was a half-opened garage door at VCA on the morning of the incident, after John Everett arrived at work, and there was also a broken window on the premises that was discovered by a police officer after the incident. The officer testified that the window may have been broken to gain entrance to the facility. Thus, there was circumstantial evidence to support a finding that appellant may have gained entrance to VCA through the half-opened garage door or by breaking a window. Either of these means of access would certainly fit the definition of entering the building by “stealth.” Construing this evidence in a light most favorable to the prosecution, therefore, reasonable minds could conclude that appellant entered VCA by stealth as was indicated on the indictment against appellant. Thus, there was sufficient evidence justifying the trial court's denial of appellant's motion for acquittal as to the charge of aggravated burglary.

Accordingly, appellant's sixteenth assignment of error is without merit.

SEVENTEENTH ASSIGNMENT OF ERROR

“The admission of exhibit 2 and 3 (photographs of Tracey Jefferys and John Coleman), as well as character and background of Everett, Coleman and Jefferys, was error.”

In his seventeenth assignment of error, appellant asserts that the trial court erred in admitting predeath photographs of Tracey Jefferys and John Coleman, as well as character and background evidence of the three victims. Appellant relies on Evid.R. 404, the Fifth and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

Regarding the predeath photographs of Jefferys and Coleman, appellant argues that they were not relevant, and they were introduced “solely to inflame and prejudice the court.” Appellant relies exclusively on a 1983 case from an Oklahoma appellate court for his proposition that the introduction of such photographs is unfair. White v. State (1983), 674 P.2d 31, 36.

Pursuant to Evid.R. 403, relevant evidence is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. In balancing the probative value against the unfair prejudice, the trial court is vested with broad discretion and its decision should not be reversed absent a clear abuse of discretion. State v. Harcourt ( 1988), 46 Ohio App.3d 52, 55.

In the present case, the photographs were relevant and probative for the purpose of identification. Additionally, appellant has failed to show that the photographs were unfairly prejudicial in any way. Thus, they were properly admitted by the trial court. Furthermore, the Supreme Court of Ohio has upheld the admission of predeath photographs in capital murder cases. State v. Roe (1989), 41 Ohio St.3d 18, 22-23; State v. Hill ( 1992), 64 Ohio St.3d 313, 326-327.

Next, appellant claims that it was error for the trial court to allow John Everett to testify about Jefferys and about his own background and character. However, since no objection was made to this testimony at the time of trial, its admission will be reviewed under the plain error standard.

Appellant has failed to inform this court by reference to the transcript of exactly what testimony he objects to. The only testimony that we can find that would appear to fit appellant's description is John Everett's statements that he is thirty years old, attended Warren G. Harding High School, and lives with his mother. Apparently, appellant also objects to Everett's statements regarding Jefferys' age and height.

Appellant has failed to point out to this court how the aforementioned information could have inflamed the passion of the jury or how he was prejudiced by its admission. It is incomprehensible how these innocuous statements could have such an effect. Thus, we conclude that the admission of these statements did not constitute error.

Finally, appellant argues that the state improperly referred to the deceased's good character and his right to live, during closing arguments of both the guilt and the penalty phases of the trial. Appellant refers this court, however, to just one statement made by the state during closing arguments of the penalty phase, and we are unable to find any similar statements made during closing arguments of the guilt phase of the trial.

It is apparent that the prosecution's statement that appellant objects to was the following: “And this Defendant doesn't have the right to shoot down John Everett, and go in his pocket and take his billfold or take Tracey's keys or her purse or her money or cause serious physical harm in the commission of the aggravated robbery. They have [ sic] a right to be where they were. How about them?

“Are we going to forget about them and blame it on conduct disorder?” As previously stated in our analysis of appellant's fourth assignment of error, an examination of a prosecutorial misconduct claim requires a two-step determination. First, it must be determined whether the remark was improper and, second whether the remark prejudiced substantial rights of the defendant. Brown, 38 Ohio St.3d at 316.

In the present case, the prosecution's statement that the victims had a right to be where they were is simply not an improper remark. Contrary to what appellant claims, the statement did not reference the decedents' good character or their right to live. Thus, the remark did not constitute prosecutorial misconduct, and the trial court did not err in permitting the state to make the aforementioned statement.

Accordingly, appellant's seventeenth assignment of error is without merit.

EIGHTEENTH ASSIGNMENT OF ERROR

“The trial court erred in changing the verdict form after the jury rendered its verdict.”

In his eighteenth assignment of error, appellant asserts that the trial court erred in changing the verdict form after the jury rendered its verdict. The jury in this case was given verdict forms during its deliberations. It is apparent that one of the verdict forms contained an error. In the form titled “COUNT NUMBER 9-INDICTMENT FOR AGGRAVATED ROBBERY,” the body of the verdict form read as follows:

“We, the Jury in this case, duly impaneled and sworn or affirmed, find the Defendant, Roderick Davie, *_______________of Kidnapping in that he did, in attempting or committing a theft offense, have a deadly weapon, to wit: a .38 caliber handgun, on or about his person and did inflict serious physical harm on Tracy [sic] Jefferys, in the manner and form as he stands charged in the ninth count of the indictment.”

The jury filled in the blank with the word “Guilty.” Apparently, nobody caught the discrepancy between the “aggravated robbery” language used in the caption and the “kidnapping” language used in the body of the verdict form until after the jury had filled in and signed the verdict form.

After the verdict was announced in court, the trial judge took all counsel into chambers to discuss the error. The judge noted the error, referring to it as “typographical.” At that point, appellee argued that it was clear from the caption in bold print, and from the language in the body of the verdict form which set forth the elements of aggravated robbery, that the jury's guilty verdict was for the charge of aggravated robbery. The state then moved to amend the verdict form in question.

In response, appellant's counsel asked that the verdict set forth on this verdict form be declared null and void and set aside. Over defense counsel's objections, the trial court amended the verdict form by crossing out the word “kidnapping” and writing in the words “aggravated robbery.”

Appellant argues that the trial court's decision to amend the already signed form, without first consulting with the jury or allowing further deliberation, constituted prejudicial error. Appellant relies on State v. English (1985), 21 Ohio App.3d 130 to support his position.

In English, the defendant was charged with aggravated burglary and the jury was properly instructed on aggravated burglary. The jury, however, returned a verdict of guilty of burglary because they were given the wrong verdict form. The appellate court determined that under these circumstances, the trial court erred in amending the verdict to a finding of guilty of aggravated burglary after the jury had been discharged. The appellate court stated that the trial court, instead, should have proceeded to sentence the defendant on the burglary verdict, and the case was remanded for that purpose.

The facts in English are distinguishable from the present cause. While the verdict form in English was the wrong form entirely as the only crime and the only statute mentioned on the form was burglary in violation of R.C. 2911.12, the burglary statute, the verdict form in the present case had internal inconsistencies. The caption indicated in bold print that the count was aggravated robbery, and the elements set forth in the body of the form were those necessary for a conviction on an aggravated robbery charge, but the word “kidnapping” appeared in the body as the crime that the elements constituted.

The trial court determined that an examination of the verdict form would lead one to believe that the word “kidnapping” was “noticeably incorrect.” We agree. Whereas the verdict form in English gave no clue that the crime listed was incorrect; here, a reasonable person would be able to determine that the word “kidnapping” had been accidently inserted in place of the words “aggravated robbery.”

We are compelled to point out that the better practice would have been for the trial court to question the jurors as to their intentions in filling out the verdict form in question, or even to allow further deliberation on the aggravated robbery charge. However, we are convinced that the verdict form was sufficiently clear, and that the trial court's decision to amend the jury form to reflect the jury's verdict in substance did not amount to prejudicial error.

Accordingly, appellant's eighteenth assignment of error is without merit.

NINETEENTH ASSIGNMENT OF ERROR

“The trial court erred in limiting the admission of mitigation evidence.”

In his nineteenth assignment of error, appellant asserts that the trial court erred in limiting the admission of certain mitigation evidence. Appellant argues that by excluding relevant mitigating evidence from the penalty phase of his trial, the trial court denied him his constitutional right to an “individualized determination” of the appropriate sentence. Appellant asserts that this violated the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 9, 10, and 16, Article I of the Ohio Constitution. Specifically, during the penalty phase of the trial, Dr. John Kenny was precluded from answering defense counsel's question whether or not appellant was aware of his post-concussion syndrome and whether he could control its effects.

Dr. Kenny had testified that based upon his examination of appellant, it was his opinion that appellant had cognitive problems in assimilating certain types of information. This led to an aggravation of preexisting personality traits. Dr. Kenny opined that these problems stemmed from appellant being hit on the head with a baseball bat when he was eighteen years old. Dr. Kenny concluded that appellant suffered from post-concussion syndrome.

After stating this conclusion, counsel for appellant attempted to further question Dr. Kenny as follows: “Q. In other words, what you're saying basically is that any of the emotions that are felt by anybody, anger, irritability, depression, whatever it is, it's going to be accentuated by this particular- “A. Yes. In more severe head injuries, you can get a change in personality because it's so severe. But in these mild cases, it's usually an aggravation of preexisting personality. “Q. In other words, the preexisting personality would be personified by virtue of the injury? “A. It could be accentuated. “Q. Do you have any cognitive ability to understand that? In other words, does a person know that, if he's not aware of it or nobody ever told him, I mean is he actually aware of it in the sense he can control it or is it an automatic thing? “Mr. Watkins: I'm going to object. I don't know if he can answer that thing. “The Court: I'll sustain the objection for the lack of a foundation. I think to ask that, that takes him to kind of to I think a background of information. I'm sustaining the objection at this point. “Q. Doctor, what I'm asking is this. That the person, because they exhibited, are they conscious of the injury itself or what it causes, or are they just reacting that way because of the damage to the brain? “A. Could you repeat that again? “Q. What I'm saying is, is the individual who is injured, in other words is Rod, is he aware in the sense, from a control standpoint, is he aware of what the damage is or have the ability to control what the injury is? “Mr. Watkins: I'm going to object, he can't answer that question. “The Court: Gentleman, approach the bench. (Side bar discussion, off the record and out of hearing)”

When the proceedings on the record returned, defense counsel had moved to a different topic. There is nothing in the record to indicate that the trial court stopped defense counsel from proceeding with his prior line of questioning. Appellant contends that whether one is able to control a response arising from a physical injury is appropriate mitigating evidence pursuant to R.C. 2929.04(B)(3) or (B)(7). Therefore, appellant argues that the trial court excluded relevant mitigating evidence which should have been considered by the jury.

It is clear, however, that appellant made no proffer of evidence as to what Dr. Kenny's response would have been to defense counsel's questions. Evid.R. 103 provides, in pertinent part: “(A) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and “ * * * “(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination.”

In State v. Gilmore (1986), 28 Ohio St.3d 190, the Supreme Court of Ohio stated: “Pursuant to the explicit provisions of this rule, a party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked.” (Emphasis added.) Id. at 191.

In the case sub judice, not only was there no proffer made by defense counsel but, further, it was not apparent from the context within which the questions were asked what answers would have been given. Accordingly, the exclusion of this evidence cannot be assigned as error. However, even if a proffer had been made of the excluded evidence, the trial court properly sustained the state's objection based upon a lack of foundation.

Dr. Kenny testified that his field of expertise was in studying the impact of injury on brain functions. Further, he performed tests on appellant to test both brain functioning and emotional responses following the head injury. He then offered the results of the test that he had performed. However, there had been no foundation laid for the proposition that Dr. Kenny could or could not determine from his background and experience whether a head trauma victim would have knowledge of, or be able to control the results of, such head trauma. In other words, there was no foundation laid for the proposition that Dr. Kenny studied the cognitive thought process of head trauma victims. Thus, the trial court properly sustained the state's objection to appellant's line of questioning.

Finally, during redirect examination of Dr. Kenny, the following exchange occurred: “Q. And you indicated that it's entirely possible that Rod was not aware of any problem at all, from the standpoint- “Mr. Watkins: I'm going to object. “The Court: Overruled. “Q. You indicated it's quite possible that Rod had no awareness of what problems could be developing? “A. At the time of discharge, no, he may not have.”

It is apparent from this exchange that defense counsel was eventually able to obtain a response to the question that he seemed to be asking earlier, but was not permitted by the trial court. Therefore, even if the trial court's ruling had constituted error it would have been harmless at best as appellant cannot show prejudice. Accordingly, appellant's nineteenth assignment of error is without merit.

TWENTIETH ASSIGNMENT OF ERROR

“The trial court erred in admitting evidence of non-statutory aggravating circumstances.”

In his twentieth assignment of error, appellant asserts that the trial court gave an improper instruction to the jury which allowed the jury to consider non-statutory aggravating circumstances in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Sections 9, 10 and 16, Article I of the Ohio constitution. Specifically, appellant objects to the trial court's instruction during the mitigation phase on the basis that it allowed the jury to consider the nature and circumstances of the crime itself as an aggravating circumstance and allowed the jury to afford this evidence weight during the balancing process.

From a review of the transcript from the mitigation phase, however, it is clear that no objection was made to the trial court's instruction and, therefore, appellant has waived this argument and may not raise it on appeal. Crim.R. 30(A).

Even if appellant had objected at trial, this assignment of error would be overruled. A review of the instruction given reveals that the jury was given proper guidance and was not misled by the trial court's instruction.

Appellant objects to the following portions of the jury charge: “The nature and circumstances of the aggravated murder are relevant only insofar as they may relate to any mitigating factors alleged by the Defendant, or any of the aggravating circumstances pertaining to the first count regarding the death of John Ira Coleman for which the Defendant was found guilty. “ * * * “ * * * The nature and circumstances of the aggravated murder are relevant only insofar as they may relate to any mitigating factors alleged by the Defendant, or any of the aggravating circumstances pertaining to the second count regarding the death of Tracey Jefferys, for which the Defendant was found guilty.”

Appellant takes these quotations out of context, however, and it is well established that “[a] single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge.” State v. Price ( 1979), 60 Ohio St.2d 136, paragraph four of the syllabus. See, also, State v. Slagle (1992), 65 Ohio St.3d 597, 609; and State v. Warner (1990), 55 Ohio St.3d 31, 56.

The instruction objected to by appellant occurred during the trial court's explanation of what constitutes “aggravating circumstances.” First, the court explained that aggravating circumstances “are precisely as set out in the specifications contained in the verdict form on these specifications.” The court then stated that “[t]here are four aggravating circumstances for the first count regarding the death of John Ira Coleman.” One by one, those four aggravating circumstances as set forth in the indictment were explained to the jury. Then, just prior to giving the instruction that appellant objects to, the trial court specifically stated, “[a] homicide itself is not to be considered aggravated circumstance-an aggravating circumstance.”

The court then repeated these instructions for the second count regarding the death of Tracey Jefferys.

It is clear that the trial court's instruction was not misleading as it did not allow the jury to consider non-statutory aggravating circumstances. The court stated that the aggravating circumstances were the same as those set forth in the indictment. Additionally, the court instructed the jury not to consider the murder itself as an aggravating circumstance. Finally, the court's instruction that the nature and circumstances of the crime are relevant only insofar as they may relate to any of the aggravating circumstances simply is not the equivalent of instructing the jury that they can consider the crime itself as an aggravating circumstance. In short, the trial court explained in detail what could and could not be considered aggravating circumstances.

Appellant failed to object to this instruction at trial and has failed to show that this instruction was plain error. Accordingly, appellant's twentieth assignment of error is without merit.

TWENTY-FIRST ASSIGNMENT OF ERROR

“The trial court erred by not complying with R.C. 2929.03.”

In his twenty-first assignment of error, appellant asserts that the trial court erred by failing to comply with the dictates set forth in R.C. 2929.03. Additionally, appellant alleges that the trial court improperly considered nonstatutory aggravating factors in its opinion imposing the death sentence. Appellant claims that these errors violated his due process rights.

Pursuant to R.C. 2929.03(F), when a trial court imposes a death sentence, it must state in a separate opinion: (1) the existence of any of the mitigating factors set forth in R.C. 2929.04(B); (2) the existence of any other mitigating factors; (3) the aggravating circumstances the offender was found guilty of committing; and (4) the reason why the aggravating circumstances were sufficient to outweigh the mitigating factors.

The trial court's opinion first set forth the four statutory aggravating circumstances pursuant to R.C. 2929.04(A)(5) and (A)(7) that pertained to the death of John Coleman. The court then listed the mitigating factors that it considered and weighed. These include the history, character and background of appellant, the youth of appellant, and appellant's lack of a significant history of criminal convictions. The court also listed seven other mitigating factors that it considered pursuant to R.C. 2929.04(B)(7).

The trial court expressly found that the aggravating circumstances outweighed the mitigating factors by proof beyond a reasonable doubt. The trial court then proceeded to repeat the process in addressing the aggravated murder of Tracey Jefferys. The court again concluded that the aggravating circumstances outweighed the mitigating factors by proof beyond a reasonable doubt.

Appellant argues that within those portions of the trial court's opinion that addressed the four statutory aggravating circumstances, the court referred to the nature and circumstances of the offense. It is appellant's contention that the nature and circumstances of the offense are not proper aggravating circumstances and, therefore, should not have been considered by the court in its balancing process.

Appellant's argument is without merit. In State v. Stumpf (1987), 32 Ohio St.3d 95, the trial court, in stating its reasons why the aggravating circumstances outweighed the mitigating factors, relied heavily upon the nature and circumstances of the defendant's offense. The Supreme Court of Ohio held that this did not constitute error. The court explained: “ * * * R.C. 2929.04(B) requires the jury, trial court, or three-judge panel to ‘ consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense * * *.’ (Emphasis added.) In a particular case, the nature and circumstances of the offense may have a mitigating impact, or they may not. See State v. Steffen ( 1987), 31 Ohio St.3d 111, 117, 31 OBR 273, 278, 509 N.E.2d 383, 390. Either way, they must be considered.

“Reading R.C. 2929.03(F) and 2929.04(B) in pari materia, it would be illogical to require a three-judge panel to consider the nature and circumstances of the offense in making its decisions whether the aggravating circumstances were sufficient to outweigh the mitigating factors, yet to forbid that panel from relying upon and citing such nature and circumstances as reasons for its decision. “We therefore hold that under R.C. 2929.03(F), a trial court or three-judge panel may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.” (Emphasis sic.) Id. at 99-100.

Similarly, in Steffen, supra, the Supreme Court of Ohio held that the trial court is required to review the nature and circumstances of the offense pursuant to R.C. 2929.04(B). Regarding the trial court's opinion, the Supreme Court stated: “ * * * By its statement on the gruesome and vicious nature of the murder, the trial court herein was merely justifying its conclusion that no mitigating factors can be gleaned from the nature and circumstances of this particular offense. We find nothing improper in the court's remarks.” Id. at 117.

Additionally, in a case where a similar argument was made, the Supreme Court of Ohio held that even if the trial court improperly considered nonstatutory aggravating circumstances, the reviewing court's independent balancing cures any possible error. Lorraine, 66 Ohio St.3d at 422. Based upon this line of cases, appellant's twenty-first assignment of error is without merit.

TWENTY-SECOND ASSIGNMENT OF ERROR

“The trial court violated R.C. 2929.41 in its sentencing of the appellant.”

In his twenty-second assignment of error, appellant asserts that the trial court erred in imposing a life term and a three-year term of imprisonment and ordering that they be served consecutively to his death sentence. In State v. Campbell ( 1994), 69 Ohio St.3d 38, the Supreme Court of Ohio addressed this identical argument in a case similar to the present one. The defendant was convicted of aggravated murder and aggravated burglary. The trial court ordered his sentence for aggravated burglary to be served consecutively to his death sentence. The Supreme Court stated that “[w]hile the prison sentence is rendered moot by the imposition of the death sentence, we find no error.” Id. at 52. We agree. Appellant is simply not prejudiced by the consecutive sentences.

Appellant's twenty-second assignment of error is without merit.

TWENTY-THIRD ASSIGNMENT OF ERROR

“The appellant was denied the effective assistance of counsel.”

In his twenty-third assignment of error, appellant asserts that he was denied effective assistance of trial counsel in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.

The Supreme Court of the United States has set forth a two-prong test for determining whether a defendant has been denied effective assistance of counsel. In Strickland v. Washington, ( 1984), 466 U.S. 668, the court stated: “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.* * * ” Id. at 687.

Additionally, the Strickland court held: “Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v Isaac, 456 U.S. 107, 133-134, 71 L.Ed.2d 783, 102 S Ct 1558 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v Louisiana [ (1955), 350 U.S. 91, 101].* * * ” Id. at 689.

Accordingly, the Supreme Court of Ohio has stated that “[t]o warrant reversal, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Watson, 61 Ohio St.3d at 12-13, quoting Strickland, at 694.

In the case sub judice, appellant has presented a list of twenty-three claimed instances of ineffective assistance by his trial counsel. They are: “1. Failed to object to all of the gruesome photographs, autopsy slides, crime scene videotape, and diagrams. See Third Assignment of Error. “2. Failed to object to the trial court's comments requesting the jury remain seated while the defendant was removed by the deputies. See Second Assignment of Error. “3. Failed to object to all irrelevant and unproven other criminal acts admitted against appellant. See Eleventh Assignment of Error. “4. Failed to give an opening statement in the penalty phase. “5. Failed to object to the prosecutorial misconduct at both phases of the capital trial. See Fourth Assignment of Error. “6. Failed to object to hearsay, inadmissible character evidence and other speculative and emotional testimony and erroneous evidentiary ruling as well as failing to request an instruction to the jury to strike testimony that was successfully challenged. See, e.g. Tr. 65-67, 68, 69, 72, 122, 174, 194, 195-196, 204, 206, 218, 226, 240, 299, 350, 394, 407, 737, 821. “7. Failed to move for a separation of witnesses until the second day of trial. “8. Failed to object to comments regarding the motion to suppress Donna Smith's identification and the appellant's statements. See e.g. Tr. 187, 257, 311. “9. Failed to seek fees for an eyewitness identification expert although identification was the most significant issue in the case. “10. Failed to insist on the presence of appellant in off-the-record-discussions and in-chambers hearings. “11. Failed to request the grand jury testimony although clearly could have shown a particularized need. “12. Failed to object to the prosecution's use of 8” x 10” photographs during the trial although 3” x 5” submitted as exhibits. “13. Failed to make complete appellate record. “14. Failed to object to the state breaking up his closing argument in the guilt phase. “15. Failed to object and move for mistrial when state repeatedly commented on fact the defense had their own expert. See Fifth Assignment of Error. “16. Failed to object or even test qualifications of person testifying regarding the blood spatters. Tr. 825. “17. Failed to object to the denigration of the defendant and the defense and failed to object to the comments regarding defendant's silence. “18. Failed to object to court's instructions regarding consistent verdicts, and alternative theories of establishing aggravated felony-murder. See Thirteenth Assignment of Error. “19. Failed to develop any theme in the mitigating phase and failed to adequately investigate the defendant's background and history. “20. Failed to object to trial court's erroneous instruction in the mitigation hearing. See Twentieth Assignment of Error. “21. Failed to object to the prejudicial errors occurring in voir dire. See First, Ninth and Tenth Assignments of Error. “22. Failed to object to the trial court excluding relevant evidence in mitigation. See Nineteenth Assignment of Error. “23. Failed to provide discovery to state, thereby permitting comment on Defendant's missing expert.”

Of the twenty-three claimed mistakes, nine have previously been considered under other assignments of error. Hence, we incorporate our treatment of those arguments under those assignments and decline to readdress each one separately.

Regarding the fourteen other claimed mistakes, only three reference portions of the transcript. Of these fourteen, however, appellant's brief includes no discussion whatsoever concerning how he was prejudiced by the alleged errors. Thus, it is very difficult if not impossible to determine precisely what aspect of trial counsel's performance was objectionable.

Accordingly, appellant has violated App.R. 16(A)(7) with respect to this entire assignment of error, in addition to violating App.R. 16(A)(3) with respect to all but three of his claims of ineffective assistance of counsel. Thus, pursuant to App.R. 12(A)(2), we may disregard these claims because they are not individually argued. See, also, Loc.App.R. 12(C)(4)(a).

For the foregoing reasons, appellant has failed to establish that he was denied effective assistance of counsel. Accordingly, appellant's twenty-third assignment of error is without merit.

TWENTY-FOURTH ASSIGNMENT OF ERROR

“The conviction and sentence herein are against the manifest weight of the evidence.”

In his twenty-fourth assignment of error, appellant asserts that his conviction and sentence are against the manifest weight of the evidence. Specifically, appellant argues that his convictions for aggravated burglary and aggravated robbery were against the manifest weight of the evidence, and, since they were used as the underlying basis for his aggravated murder convictions, all four of these convictions must be reversed.

The Supreme Court of Ohio has stated: “In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt.” Brown, 38 Ohio St.3d 305, at paragraph four of the syllabus.

With respect to appellant's conviction for aggravated burglary, he reasserts his argument made in the sixteenth assignment of error that the element of stealth was not proven. For the same reasons we set forth in addressing appellant's sixteenth assignment of error, we disagree.

Appellant was convicted of violating R.C. 2911.11(A)(2) which provides: “(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: “(1) * * * “(2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; * * * ”

The state specified that appellant entered the occupied structure, the VCA warehouse, by stealth. The state proceeded to introduce evidence that there was a half-opened garage door in the loading dock area at VCA on the morning of the incident after John Everett arrived at work. John Everett was loading one of the trucks and it was standard practice to leave a garage door partially open when a truck was being loaded inside the loading dock area. Thus, appellant could have entered upon the premises through the open door.

Alternately, the state introduced evidence that after the incident occurred, a police officer discovered a broken window on the premises that could have been used to gain entry to the building. Furthermore, John Everett testified that he did not notice any broken windows when he arrived to work that day. Thus, one could conclude that appellant gained entry to the warehouse by breaking the window.

In contrast, appellant testified that Tracey Jefferys opened the door and allowed him to enter. Thus, he contends, he did not enter by stealth.

The Supreme Court of Ohio has held: “On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.

In the case sub judice, it is apparent that the jury simply found appellant's testimony to be less than credible. The state's evidence, while circumstantial, perhaps offered the jury a more believable alternative to the testimony of appellant.

Additionally, John Everett testified that the VCA warehouse had an extensive security system whereby a person on the inside would have to “buzz” in a visitor for the outside door to unlock. Further, he testified that he heard the buzzer when Tracey Jefferys let John Coleman into the warehouse. Everett did not testify that he heard the buzzer at any other time that morning which could lead one to conclude that, contrary to appellant's testimony, Tracey Jeffery's had not opened the door for appellant that day.

In conclusion, from a review of the testimony, it is clear that there was sufficient evidence for the jury to find appellant guilty of aggravated burglary beyond a reasonable doubt.

Appellant also claims that his conviction for aggravated robbery was against the manifest weight of the evidence. It is appellant's contention that there was insufficient evidence that he took Tracey Jefferys' black pouch.

Appellant's contention is without merit. The state presented evidence that on the afternoon that appellant was arrested, two detectives went to 436 White Court to talk to appellant's girlfriend, Sonya Barnes. There, they found Tracey Jefferys' black pouch in plain view on the kitchen table. They also found John Everett's wallet on top of the refrigerator. They had earlier found Tracey Jefferys' checkbook inside the pocket of the blue jeans they had discovered in a wooded area behind Styx's house.

Thus, there was undisputed evidence that property taken from the victims was found in locations that were directly connected with appellant. The implication being that appellant had stolen the property while at the VCA warehouse and taken it with him to the residences of both Styx and Sonya Barnes. Clearly, this was sufficient evidence for the jury to find appellant guilty of aggravated robbery beyond a reasonable doubt. Accordingly, appellant's twenty-fourth assignment of error is without merit.

TWENTY-FIFTH ASSIGNMENT OF ERROR

“The multiplicative indictment and the repetitive use of the felony allegations violated the appellant's constitutional rights.”

In his twenty-fifth assignment of error, appellant asserts that the multiplicative indictment and the repetitive use of the felony allegations violated his constitutional rights. Specifically, appellant submits that the two felony murder counts against him should have been dismissed prior to trial as either violative of the Double Jeopardy Clause, or of the Supreme Court of the United State's decision in Lowenfield v. Phelps (1988), 484 U.S. 231.

Appellant contends that the failure of the trial court to dismiss the multiplicative indictment violated his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Sections 9, 10, and 16, Article I of the Ohio Constitution. Additionally, appellant argues that the trial court erred by failing to merge the second, third, and fourth specifications to each of the murder counts on the basis that they were illegally cumulative.

In appellant's double jeopardy argument, he claims that he “suffered repeated jeopardy, conviction and multiple sentences based upon a single act of criminal conduct.” A similar argument was considered and rejected in State v. Grant ( 1993), 67 Ohio St.3d 465, wherein the defendant claimed that she was punished three times for a single act. In rejecting the defendant's argument, the Supreme Court of Ohio stated: “[The defendant] contends that separate punishments for aggravated arson and aggravated murder, as well as the death specification for felony murder, violate her rights against double jeopardy and multiple punishments. Additionally, she assumes she did not separately commit the offense of aggravated arson. As previously discussed, the law and facts do not bear out her contentions. “Ohio's statutory scheme of punishment under R.C. 2903.01(B) of both aggravated murder and aggravated arson does not violate constitutional guarantees against double jeopardy. The General Assembly intended that both offenses be separately punished. See State v. Moss (1982), 69 Ohio St.2d 515, 521-522, 23 O.O.3d 447, 451, 433 N.E.2d 181, 186-187; State v. Guyton (1984) 18 Ohio App.3d 101, 18 OBR 464, 481 N.E.2d 650.” (Emphasis sic.) Id. at 474.

In Guyton, supra, the court stated: “The Ohio Legislature has manifested a clear intent to provide an enhanced penalty to one found guilty of both aggravated murder and one of the several felony specifications. As such, there is no double jeopardy violation.* * * ” Id. at 104.

The present case is similar and the logic equally applicable. Hence, the Double Jeopardy Clause was not violated in this case. Appellant also argues that pursuant to the United States Supreme Court's decision in Lowenfield, supra, Ohio's statutory scheme for capital murder is unconstitutional. Appellant argues that there is no narrowing of the class eligible for the death sentence as required by the United States Constitution. This argument was expressly rejected by the Supreme Court of Ohio in State v, Henderson (1988), 39 Ohio St.3d 24. See, also, this Court's recent decision in State v. Williams (Mar. 24, 1995), Trumbull App. No. 89-T-4210, unreported at 75. Thus, appellant's assertion is without merit.

Finally, appellant submits that the trial court erred in not merging the three R.C. 2929.04(A)(7) specifications to each of the murder counts prior to the penalty phase. Appellant relies on State v. Jenkins (1984), 15 Ohio St.3d 164, wherein the court held: “ * * *where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing.* * * ” Id. at 200.

However, the Supreme Court of Ohio has since held that when the aggravating circumstances are that the murder occurred during an aggravated robbery and an aggravated burglary, and when the facts supporting those acts arose from different courses of conduct, the specifications are not duplicative. Murphy, 65 Ohio St.3d at 577-578.

In the case sub judice, it is clear that the aggravated burglary and aggravated robbery were not part of the same course of conduct and did not arise from the same act. The burglary was complete once appellant entered the VCA warehouse without permission, with the intent to commit felonies therein, and with a deadly weapon on or about his person. The aggravated robbery did not occur until appellant took the personal belongings of Tracey Jefferys and John Everett. Accordingly, these specifications were not duplicative and, thus, the trial court properly refused to merge them.

We also disagree with appellant that the submission of two aggravating circumstances under R.C. 2929.04(A)(7), for the commission of aggravated murder in the course of a kidnapping and in the course of an aggravated robbery, was unnecessarily cumulative. In addressing the identical argument, the court in Jenkins, supra, cited to an earlier decision, stating: “In State v. Logan ( 1979), 60 Ohio St.2d 126 [14 O.O.3d 373], this court was confronted with the question of when a defendant may be convicted of kidnapping and another offense of the same or similar kind in conjunction with Ohio's multiple-count statute. The guidelines set forth in the syllabus are as follows: “(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; “(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.” “As the Logan court recognized, the critical consideration ‘is whether the restraint or movement of the victim is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense.’ Id. at 135. Cf. State v. Price ( 1979), 60 Ohio St.2d 136, at 143 [14 O.O.3d 379].” Id. at 197-198.

In the present action, the kidnapping occurred when appellant gathered the victims in one room and had them lie down on the floor, as they were being restrained by threat. This was a distinct and separate act from the aggravated burglary which had occurred earlier when appellant entered the VCA warehouse, or the aggravated robbery which occurred later when appellant took Everett's wallet and Jefferys' black pouch. It is clear that the restraint of the victims was not merely incidental to the aggravated burglary or the aggravated robbery. Hence, the trial court properly refused to merge these specifications as they were not duplicative.

Accordingly, appellant's twenty-fifth assignment of error is without merit.

TWENTY-SIXTH ASSIGNMENT OF ERROR

“The trial court was improperly prevented from deciding whether death was the appropriate punishment.”

In his twenty-sixth assignment of error, appellant asserts that the statutorily mandated proportionality review process in Ohio does not comport with the requirements of both the Ohio and United States Constitutions and is, thus, fatally flawed.

Pursuant to State v. Poindexter (1988), 36 Ohio St.3d 1, issues of law in capital cases which have been considered and decided by the Supreme Court of Ohio and raised anew in a subsequent capital case may be summarily disposed of in the subsequent case. Id. at syllabus. Ohio's death penalty proportionality review has repeatedly been held to be constitutional. State v. Loza ( 1994), 71 Ohio St.3d 61, 84; Murphy, 65 Ohio St.3d at 583; Steffen, 31 Ohio St.3d 111, at paragraph one of the syllabus. Accordingly, appellant's twenty-sixth assignment of error is without merit.

TWENTY-SEVENTH ASSIGNMENT OF ERROR

“The Ohio Statutory scheme concerning the imposition of the death penalty is unconstitutional.”

In his twenty-seventh assignment of error, appellant asserts that Ohio's death penalty statute is unconstitutional. Pursuant to Poindexter, 36 Ohio St.3d 1, issues of law in capital cases which have been considered and decided by the Supreme Court of Ohio and raised anew in a subsequent capital case may be summarily disposed of in the subsequent case. Id. at syllabus. The constitutionality of Ohio's death penalty statute has repeatedly been upheld. Loza, 71 Ohio St.3d at 84; Jenkins, 15 Ohio St.3d at 179.

Accordingly, appellant's twenty-seventh assignment of error is without merit.

TWENTY-EIGHTH ASSIGNMENT OF ERROR

“This court cannot find that after reviewing all of the factors of R.C. 2929.05(A) that death was the appropriate sentence for Roderick Davie.”

In his twenty-eighth assignment of error, appellant asserts that this Court cannot find that, after reviewing all of the factors set forth in R.C. 2929.05(A), the death penalty was the appropriate sentence in this case. Appellant's argument simply corresponds to the independent review that this court is required to make in all cases where the sentence of death has been given. Accordingly, since these issues will be addressed by this court in the next portion of this opinion, we will not repeat the analysis at this point.

Accordingly, appellant's twenty-eighth assignment of error is without merit.

TWENTY-NINTH ASSIGNMENT OF ERROR

“The trial court erred in not allowing the appellant to be present for the hearing before a trial court to correct a record.”

On March 3, 1994, appellant filed a motion to remand this matter to the trial court to correct the record. Appellant stated that the procedure for supplementing the record was set forth in App.R. 9(C), and that: “Appellant emphasizes that this is not a complicated or lengthy procedure which will cause undue delay. The missing portions have been identified and should be able to be reconstructed with a joint meeting between trial counsel, the trial judge and perhaps the court reporter.”

On March 30, 1994, this court granted appellant's motion and remanded this case to the trial court for sixty days for the purpose of reviewing, settling and/or approving an App.R. 9(C) statement.

On May 18, 1994, appellant filed with the trial court a motion for hearing so that the court could determine the portions of the record that were not set forth in the transcript because they were not recorded. In his supporting memorandum, appellant stated that “[s]ince the defendant was not present for any of the sidebar conversations or conferences, he cannot assist counsel in preparing any type of statement.” He also asserted that “the only fair way to resolve what these off-the-record conferences were about is to have trial counsel and the court, who were present, supplement the record by stating what transpired during those conferences.”

Appellee filed a memorandum opposing appellant's motion of June 2, 1994. Appellee argued that App.R. 9(C) did not provide for a hearing of the type requested by appellant. Appellee requested the trial court return the case to this Court because appellant had failed to offer a proposed statement pursuant to App.R. 9(C).

On June 8, 1994, the trial court overruled appellant's motion for hearing because there was no legal authority for such a hearing. Additionally, because the time on remand had expired without appellant following the procedure set forth in App.R. 9(C), the trial court returned the case to this Court with a notification that there was no statement to be added to the record on appeal.

On July 20, 1994, appellant filed a second motion to remand to correct the record. He asked this Court to return the case to the trial court “in order to determine what occurred in the off the record conversations and to supplement the record with a transcript of those conversations.” Appellee filed a memorandum opposing this motion claiming that appellant had no right to have the record supplemented with off-the-record matters.

On December 14, 1994, this Court granted appellant's motion for a second remand. We returned the case to the trial court, stating that it was remanded “for the sole purpose of reviewing, settling and/or approving appellant's submission in regard to the proposed App.R. 9(C) statement and any objections or amendments to that statement submitted by the parties.”

Subsequently, appellant filed a proposed App.R. 9(C) statement and appellee filed its response thereto. A hearing was scheduled for January 12, 1995. On January 9, 1995, appellant filed a motion for the trial court to issue a warrant to convey appellant to the hearing. Appellant argued that he had a right under the United States and Ohio Constitutions and Crim.R. 43(A) to be present at the hearing, and that his presence was necessary to assist counsel at the hearing. Appellee filed a memorandum opposing this motion on January 11, 1995.

On January 12, 1995, the trial court overruled appellant's motion to attend the hearing. Thereafter, the parties ultimately reached an agreement as to the submission of a proposed App.R. 9(C) statement. No witnesses were called and no evidence was received at the hearing.

On January 19, 1995, the trial court filed a judgment entry stating that the parties had reached an agreement that counsel for appellant had used the best means available to develop a proposed App.R. 9(C) statement concerning matters contained outside the record, that counsel for appellee had no independent recollection regarding such matters, and that the state did not oppose the proposed App.R. 9(C) statement prepared by appellant's counsel. Attached to the entry was the proposed App.R. 9(C) statement consisting of seventy-three entries which either set forth brief narratives of what was believed to have occurred during the particular off-the-record sidebar conferences, or stated that no statement was being offered as to the particular conference.

In the twenty-ninth assignment of error, appellant contends that the trial court erred in not allowing him to be present for the hearing to correct the record. Appellant relies on the United States and Ohio Constitutions, R.C. 2945.12, and Crim.R. 43(A). Each give a defendant the right to be present at all stages of the trial.

However, in United States v. Gagnon (1985), 470 U.S. 522, the United States Supreme Court discussed the scope of a defendant's right to be present as follows: “The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, e.g., Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S Ct 1057, 51 Ohio Ops 2d 163 (1970), but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him. In Snyder v. Massachusetts, 291 U.S. 97, 78 L Ed 674, 54 S Ct 330, 90 ALR 575 (1934), the Court explained that a defendant has a due process right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.... [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ Id., at 105-106, 108, 78 L Ed 674, 54 S Ct 330, 90 ALR 575; see also Faretta v. California, 422 U.S. 806, 819, n 15, 45 L.Ed.2d 562, 95 S Ct 2525 (1975). The Court also cautioned in Snyder that the exclusion of a defendant from a trial proceeding should be considered in light of the whole record, 291 US, at 115, 78 L Ed 674, 54 S Ct 330, 90 ALR 575.” Id. at 526-527.

It is clear that, in the case sub judice, appellant cannot claim that his right to be present under the Confrontation Clause was violated since no witnesses testified and no evidence was offered against him at the hearing in question.

Additionally, it is evident that appellant's due process rights were not violated as his presence at the hearing did not have a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. In appellant's motions to remand the matter to the trial court to correct the record, appellant readily admitted that he was not present for any of the sidebar conferences and, thus, would not be able to assist counsel in preparing an App.R. 9(C) statement. Accordingly, a fair and just hearing could be held in appellant's absence.

Other cases have similarly held that the defendant need not be present at every conceivable event that occurs. Snyder v. Massachusetts, supra, (defendant need not be present at the jury view of the crime scene); Fielden v. Illinois (1892) 143 U.S. 452 (defendant had no due process right to be present when appellate court affirmed death sentence and set forth date of execution); and United States v. Sanchez ( C.A.1, 1990), 917 F.2d 607, certiorari denied (1991), 499 U.S. 977 (defendant has no right to be present at hearing on motion for new trial.)

Moreover, it is clear that appellant was not prejudiced by his absence from the trial court proceeding as the App.R. 9(C) statement which was agreed upon and presented to this court was prepared solely by his counsel and not objected to by the state. Thus, he received the supplementation that he was seeking, and the trial court did not err in denying appellant's motion to convey. Accordingly, appellant's twenty-ninth assignment of error is without merit.

III. INDEPENDENT REVIEW

Pursuant to R.C. 2929.05(A), when reviewing a judgment imposing the death penalty, an appellate court must conduct a separate and independent review of the case. As this Court has noted previously: “First, the court of appeals shall determine if the evidence supports the finding of the aggravated circumstances of which the offender was found guilty. Second, the court must independently weigh all the evidence disclosed in the record to determine whether the aggravating circumstances outweigh the mitigating factors. And third, the court must consider whether the sentence was excessive or disproportionate to the penalty imposed in similar cases.” State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported at 42.

Our independent review of the evidence presented at trial supports the conclusion that the death penalty specifications were proven beyond a reasonable doubt. Each of the four aggravated murder counts contained four specifications or aggravating circumstances.

Specifically, this Court finds that the following aggravating circumstances were established: (1) the aggravated murders of Tracey Jefferys and John Coleman were part of a course of conduct involving the purposeful killing of, or attempt to kill, two or more persons; (2) the aggravated murders of Tracey Jefferys and John Coleman occurred while appellant was committing the offense of kidnapping; (3) the aggravated murders of Tracey Jefferys and John Coleman occurred while appellant was committing the offense of aggravated robbery; and (4) the aggravated murders of Tracey Jefferys and John Coleman occurred while appellant committing the offense of aggravated burglary.

The evidence clearly established, through the testimony of eyewitness John Everett, that appellant's course of conduct involved the purposeful killing of two more persons. Additionally, as we expressly found in appellant's twenty-fourth assignment of error, the evidence demonstrated that appellant murdered the victims while committing the offenses of aggravated burglary and aggravated robbery.

With respect to kidnapping, there was evidence presented that appellant removed each of his victims from separate locations by use of force and threat. Everett testified that appellant was threatening everyone with a loaded firearm. Appellant gathered the three victims together and forced them to lie face down on the floor. Thus, it is clear that the aggravated murders occurred while appellant was committing the offense of kidnapping.

Hence, the evidence supports the finding of these four aggravating circumstances of which appellant was found guilty.

Next, within our independent review, we must determine whether the foregoing aggravating circumstances, as set forth in the specifications, outweigh any mitigating factors raised by appellant during the penalty phase of the trial. Pursuant to R.C. 2929.04(B), the aggravating circumstances must be weighed against all mitigating factors including the nature and circumstances of the offense; the history, character, and background of the offender; and any of the following factors which may be relevant: “(1) Whether the victim of the offense induced or facilitated it; “(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; “(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; “(4) The youth of the offender; “(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; “(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; “(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”

From a review of the evidence presented at trial, it is apparent that factors (1), (2), and (6) are inapplicable in the instant cause. There was no evidence presented that the victims induced or facilitated their own murders. Similarly, there was no evidence that appellant was acting under duress, coercion, or strong provocation at the time he committed the murders. As to the sixth mitigating factor, we find after weighing and reviewing the evidence that appellant was the sole and principal offender in the commission of the murders.

Pursuant to the third factor under R.C. 2929.04(B), this Court can consider whether appellant, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Regarding this factor, there was evidence presented that appellant's I.Q. was eighty-two which is below the average person's I.Q. of one hundred. There was also evidence that appellant suffered from post-concussion syndrome due to a blow to the head he received while in high school.

Although appellant's mental capabilities may have been below average, there was no evidence presented that appellant suffered from a mental disease or defect which would prevent him from appreciating the criminality of the murders or from conforming his conduct to the requirements of the law. Accordingly, the impact of appellant's evidence relative to the third mitigating factor was minimal.

Under the fourth factor of R.C. 2929.04(B), we can consider the youth of the offender. In this case, appellant was nineteen years old at the time of the murders. Thus, we accord appellant some weight on this factor; however, it is apparent that appellant exhibited sufficient maturity to appreciate the gravity of his actions.

Pursuant to the fifth factor under R.C. 2929.04(B), this Court can consider appellant's lack of a significant history of prior criminal convictions and delinquency adjudications as a mitigating factor. It is apparent that appellant's only prior conviction was of a theft offense. There was evidence that appellant had been expelled from high school for possessing marijuana twice but apparently no delinquency adjudication resulted. Thus, some mitigating weight in appellant's favor is given on this factor.

The seventh factor under R.C. 2929.04(B) is a catch-all provision which includes any other relevant mitigating factors. Within this provision, appellant introduced evidence of his family background and history. Specifically, appellant was raised in a relatively stable home environment with three older siblings. His parents, married for thirty years, worked outside of the home. His two brothers graduated from high school and his sister from college. All had been good students who managed to avoid trouble. There was some evidence that appellant had a difficult time trying to live up to the standards set by his siblings.

Appellant began getting into trouble at the age of thirteen, which coincided with a five-year period of discord between his parents. Between 1984 and 1989, it is apparent that appellant's father moved out of the home occasionally as he and appellant's mother experienced some marital difficulty. At approximately the same time, appellant embarked upon a pattern of behavior involving delinquency, fighting, and the possession of marijuana that resulted in numerous suspensions and, eventually, expulsion from school.

Evidence further indicated that following expulsion, appellant made an unsuccessful attempt at suicide by overdosing on his mother's pills. Then at the age of seventeen, appellant left for California to live with friends. He returned to Warren approximately eight months later. Shortly thereafter, his girlfriend gave birth to appellant's daughter, Paris. From all accounts, appellant was a good father and enjoyed spending time with his daughter.

While this evidence suggests that appellant had a difficult childhood, especially once his parents began having marital problems, there is nothing remarkable about the circumstances of appellant's childhood that differentiate it from millions of other children. In many respects, appellant was fortunate in that he had two caring parents who were able to provide for him and his three siblings. Appellant was not deprived or abused in any manner. He was raised in an environment that allowed all three siblings to thrive. In short, appellant's problems were apparently self-created.

The strongest mitigating factor in appellant's favor is that of his relationship with his daughter. However, it is our conclusion that adding this mitigating factor to those already considered, including appellant's age and his lack of a significant history of criminal convictions and delinquency adjudications, simply does not overcome the great weight on the side of the aggravating circumstances. Accordingly, we conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.

Our final task within our independent review is to determine whether the imposition of the death penalty in this case was excessive or disproportionate in comparison with other death penalty cases from this district.

Since the enactment of the present statutory scheme for imposing the death penalty in 1981, this Court has reviewed six death penalty cases. These cases are: State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported; State v. Wiles (June 3, 1988), Portage App. No. 1675, unreported; State v. Hill (Nov. 27, 1989), Trumbull App. Nos. 3720/3745, unreported; State v. Lorraine (Aug. 10, 1990), Trumbull App. No. 3838, unreported; State v. Lundgren (Sep. 1, 1993), Lake App. Nos. 90-L-15-140/91-L-036, unreported; and State v. Williams (Mar. 24.1995), Trumbull App. No. 89-T-4210, unreported. In Lorraine, at 61-63, we gave the following synopsis of the first three cases: “In Glenn, supra, the defendant had plotted the escape of his half brother from the Mahoning County Jail. While his half brother was being transported to a doctor's office by a sheriff's deputy, defendant struck the police car with his own car. When the deputy exited the patrol car, the defendant shot and killed him. During the mitigation phase of the trial, it was established that the defendant was only twenty years old, that he had a low intelligence level and had special educational needs, and that he came from a poor background and environment. Nevertheless, this court, by a two to one vote, held that the death penalty was appropriate. “In Wiles, supra, the defendant was burglarizing the home of his former employers. He waited until he thought the house was unoccupied and then entered through an unlocked door. Once inside, the defendant was surprised by the fifteen year old son of his former employers. The defendant stabbed the smaller, weaker boy with a butcher knife at least eleven times and escaped with $260 cash.

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

Subsequently, in Williams, at 115-116, we gave the following synopsis of Lorraine and Lundgren: “In Lorraine, the defendant murdered a helpless elderly couple for whom he had previously performed odd jobs. Upon being invited into the couple's residence, the defendant lured the husband upstairs and stabbed him five times. The defendant then went back downstairs and stabbed the wife, a bedridden invalid, nine times. Upon completing the murders, the defendant burglarized the residence. “As part of its independent review, the Lorraine court considered various factors such as the defendant's age, his low intelligence, his poor family environment, and the fact that he had an antisocial personality disorder. Nevertheless, we found that the aggravating circumstances outweighed the mitigating factors and upheld the death penalty. “In Lundgren, the defendant was the self-proclaimed leader of a religious cult. As part of his teachings, the defendant convinced certain members of the cult to assist him in executing a plan to “sacrifice” a family of two adults and three children. Pursuant to this plan, each member of the family was separately lured to a barn and shot by appellant. The five bodies were then placed in a huge pit which had been dug in a corner of the barn. “In reviewing the evidence presented at the penalty phase, we found that the existence of only two mitigating factors had been established: (1) the lack of a significant criminal history; and (2) a poor family environment as a child. Concluding that these factors should be accorded very little weight, we found that the imposition of the death penalty had been appropriate.”

In Williams, the defendant and an accomplice broke into the home of an elderly couple and beat the couple with a cement block, a brick, an axe handle, and a lamp. The man died as a result of the beating. The woman was severely injured and was left for dead. She was discovered two days later. She lost her vision as a result of the attack.

The mitigating factors considered by this Court included the fact that the defendant had a low I.Q. of between sixty-seven and seventy-eight, that he was nineteen years old at the time of the murder, that he lacked a significant criminal history, and that he was raised without a father and his family was financially deprived. Upon review, this Court affirmed appellant's death sentence finding it to be neither excessive nor disproportionate.

In comparing the facts and circumstances of the present case to the previous death penalty cases considered by this Court, we find that appellant's death sentence is not excessive or disproportionate. Accordingly, the judgment of the trial court is affirmed. FORD, P.J., NADER, J., concur.