State v. Campbell

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The State of Ohio, Appellee, v. Campbell, Appellant.
[Cite as State v. Campbell (1994),      Ohio St.3d     .]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
     (No. 91-2137 -- Submitted October 13, 1993 -- Decided
April 20, 1994.)
     Appeal from the Court of Appeals for Hamilton County, No.
C-890330.
     Appellant, Jerome Campbell, convicted of the aggravated
murder of Henry Turner, appeals his convictions and death
sentence.
     Turner lived in an apartment at 1008 York Street,
Cincinnati. Campbell had formerly lived in the same apartment
building as Turner and had been in Turner's apartment, but had
moved out about two months before the murder.
     On December 23, 1988, Turner's neighbor, Leon Callins,
visited Turner and left at 8:00 p.m. The next morning, Callins
found Turner lying dead, a knife sticking through his wrist.
Callins called the police.
     The police found Turner's apartment in disarray. Dresser
drawers were lying on the floor. Items lay jumbled on the
bedroom and living room floors. Turner's mattress had been
pulled off the bed frame, and his television lay facedown on
the floor. Turner's normally locked liquor cabinet was open.
According to Callins, Turner kept a neat apartment, and the
mess had not been there the night before. Police found a set
of knives in an open drawer in Turner's kitchen; the murder
weapon was apparently taken from that drawer.
     Police also found Campbell's fingerprint and palm print at
the crime scene. The fingerprint was on a light bulb found on
the floor just outside Turner's apartment. The palm print was
on the outside surface of the door leading from the hallway
into Turner's kitchen, directly above the lock.
     In an autopsy examination, a deputy Hamilton County
coroner found two stab wounds in Turner's chest and a "through
and through stab wound of the right wrist"; i.e., the knife had
been plunged all the way through Turner's wrist. Turner also
had a half-inch-deep cut on the chin and a defense wound on his
left thumb.
     Donna Roberts lived at 1010 York Street. She knew
Campbell as "Scar Face" or "Burnt Face," nicknames deriving
from the burn scars covering one side of his face. Around 11:00
p.m. on December 23, while walking to a local bar, Roberts saw
someone in an alley between 1010 York and 1008 York. She did
not see the person's face, but said he or she wore white
jogging pants.
     About two hours later, Roberts was walking home along York
Street, which required her to pass an alley separating 1008
York from a vacant building. Passing the alley, Roberts was
startled to see Campbell standing in the alley, just inches
away from her. Campbell was wearing dark pants and held what
might have been a bottle. Roberts said, "[H]ow you doing?"
Campbell said, "Hi."
     On December 30, Officer Camden and Specialist Rowland of
the Cincinnati police arrested Campbell at his sister's
apartment and later interrogated him at the police station. An
interrogating police officer stated that Campbell admitted the
burglary but denied the murder. Campbell also said that he had
never changed a light bulb at 1008 York, except in his own
apartment.
     After the police took Campbell away, his sister let them
search her apartment. (Campbell disputes the voluntariness of
her consent.) In a closet, officers found a pair of gym shoes
stained with human blood. Under a bed, they found an empty
Bacardi rum bottle. A code number on the label matched the
number on a Bacardi bottle found in Turner's apartment.
Records of the Castleton Beverage Corporation (which makes
Bacardi) showed that all bottles with that code had gone in one
shipment to Covington, Kentucky.
     Campbell's ex-girlfriend, Estella "Niecy" Roe, visited him
in the Hamilton County Jail as he awaited trial. During one
visit, Campbell admitted to Roe that "he did it" (he later
recanted) and asked her to lie for him. Later, Campbell sent
Roe a letter postmarked January 23, 1989, setting forth a
detailed alibi for Roe to testify to. Unwilling to lie for
Campbell, Roe gave the letter to police.
     Ronys Clardy and Angelo Roseman, both convicted felons,
were in jail at the same time. Both later testified that
Campbell admitted to them that he had murdered Turner.
Campbell mentioned to both Clardy and Roseman that he had seen
a woman, presumably Donna Roberts, outside the apartment house
after the murder. Campbell told Roseman he was afraid the
woman might be able to identify him.
     The jury convicted Campbell of aggravated murder, R.C.
2903.01(B) (felony-murder), a felony-murder specification, R.C.
2929.04(A)(7), and two counts of aggravated burglary, R.C.
2911.11(A)(1) and (A)(3). After a penalty hearing, Campbell
was sentenced to death. The court of appeals affirmed.
     The cause is before this court upon an appeal as of right.

     Gloria Eyerly, Ohio Public Defender, Jane P. Perry and
Joseph Wilhelm, Assistant Public Defenders, for appellant.
     Joseph T. Deters, Hamilton County Prosecuting Attorney,
and Christian J. Schaefer, Assistant Prosecuting Attorney, for
appellee.
     Pfeifer, J. In this appeal, Campbell advances thirty
propositions of law. For the reasons that follow, we affirm
Campbell's convictions and death sentence.
                                I
                     Waiver and Plain Error
     Most of the issues Campbell now seeks to raise were not
preserved by objection at trial. "It is a general rule that an
appellate court will not consider any error which counsel for a
party complaining of the trial court's judgment could have
called but did not call to the trial court's attention at a
time when such error could have been avoided or corrected by
the trial court." State v. Childs (1968), 

, 

, 

, paragraph three of the syllabus.
Such errors are waived.1
     Under Crim.R. 52(B), we have power to recognize "[p]lain
errors or defects involving substantial rights … although
they were not brought to the attention of the court."
However, this rule may be invoked only in rare cases. Thus, an
alleged error "does not constitute a plain error or defect
under Crim.R. 52(B) unless, but for the error, the outcome of
the trial clearly would have been otherwise." State v. Long
(1978), 

, 

, 

,
paragraph two of the syllabus.2
                                II
                   Presentence Investigation
     In his twenty-ninth proposition of law, Campbell contends
that the court committed reversible error by ordering a
presentence investigation report ("PSI") that the defense did
not request.3
     After the guilt phase, defense counsel said: "Your honor,
we would like not to have a presentence investigation … ."
The penalty phase was tried without a PSI, resulting in the
jury's recommendation of death. After the jury was discharged,
the trial judge told counsel: "I would like to order a
presentence investigation and report." Campbell did not
object, and the PSI was compiled.   At the subsequent
sentencing hearing, defense counsel stated:
     "Your honor, first, if it please the Court, I would
indicate that both Mr. Krumbein [defense co-counsel] and I have
reviewed the presentence investigation that was ordered by the
Court. There are no statements that can be added, no
corrections, that I can see that need to be mentioned on the
record."
     When the judge pronounced sentence, he said that he had
"made an independent review of, and considered all of the
relevant evidence raised at trial, including the testimony,
exhibits, other evidence and arguments of counsel, along with,
now, the presentence investigation … ."
     The PSI cited a police officer's opinion "that this was a
very brutal offense committed against an elderly, helpless man
and that the defendant should receive a maximum sentence." The
PSI also related the officer's opinion "that some of the
wounds … appeared to be torture wounds."
     But Campbell never objected to the PSI's compilation or
consideration. Under State v. Long, he must show plain error
by showing that the sentence would clearly have been otherwise
but for the error. Yet, the circumstances indicate that the
PSI had little effect on the sentence. While the judge said
that he considered the PSI, he cited no specific aspect of it
that impressed him. Indeed, he did not deem the PSI worth
mentioning in his subsequent written opinion.
     Moreover, though the judge considered the PSI, we see no
reason to presume that he gave weight, or even credence, to
everything in it. Specifically, we see no evidence that the
judge's sentencing decision was affected by the officer's
opinion regarding "torture wounds." The officer was not
qualified to render such an opinion, and we think it likely
that this experienced trial judge understood that. And, while
Campbell characterizes the officer's opinion as "inflammatory,"
we recognize that judges are not easily swayed by irrelevant
emotional responses.
     Campbell's criminal record was also in the PSI. However,
the mitigating factor of R.C. 2929.04(B)(5), lack of a
significant criminal record, was absent in this case with or
without the PSI, since Campbell did not attempt to prove that
mitigating factor. See, e.g., State v. Waddy (1992), 

, 

.
     Finally, we note that both the jury and the court of
appeals unanimously found beyond a reasonable doubt that the
aggravating circumstance outweighed the mitigating factors,
even though neither group ever saw the PSI.4 That is
significant, for Campbell must show that the trial judge
clearly would have sentenced him to life but for the PSI. We
can hardly be certain of that, since twelve jurors and three
appellate judges found that Campbell deserved a death sentence
without seeing the PSI.
     "Notice of plain error … is to be taken with the
utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice." 

paragraph three of the syllabus. It is far from clear that
justice has been miscarried here, and so we cannot find plain
error. Accordingly. we hold the PSI issue waived and overrule
Campbell's twenty-ninth proposition.
     In his twenty-first proposition of law, Campbell recasts
the PSI issue in Sixth Amendment terms. Campbell claims he did
not receive the effective assistance of counsel, because
counsel did not object when the trial court ordered the PSI.
     A defendant who claims ineffective assistance must show
deficient performance by counsel and resulting prejudice.
Strickland v. Washington (1984), 

, 

, 

. The performance inquiry
requires the court to ask whether, considering all the
circumstances, "counsel's representation fell below an
objective standard of reasonableness." 

, 

, 

. The court "must indulge a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance …." 

, 

, 

. The prejudice inquiry "is
whether there is a reasonable probability that, absent the
errors, the factfinder would have" acquitted the defendant or,
in a capital case, spared him a death sentence. 

,

, 

. "A reasonable
probability is a probability sufficient to undermine confidence
in the outcome." 

, 

, 

.
     Significantly, the judge did not order the PSI until after
discharging the jury. Campbell had already been convicted by
the jury. His only chance was to persuade the judge to reject
the jury's recommendation on the basis of the same evidence
that had already failed to sway the jury. When the judge
erroneously ordered the PSI, counsel could have "logically
decide[d] to take the chance that a PSI may produce something
[favorable] he had missed …." State v. Hutton (1990), 

, 

. And, a competent
attorney might well have wanted the judge to see the PSI even
though he had not wanted the jury to see it. Counsel could
reasonably assume that the judge would be unaffected by any
inflammatory material in the PSI, since a judge is legally
presumed to consider only relevant, competent, material
evidence. State v. Post (1987), 

, 

.
     Campbell further argues that counsel should have objected
to the inclusion of Officer Zieverink's inflammatory statements
in the PSI. But only the trial judge saw the PSI, and that
same judge would have performed any redaction. It was
objectively reasonable for counsel not to request redaction,
since the judge would see the entire PSI -- redacted or not.
                              III
                    Fourth Amendment Issues
     In his second and twelfth propositions of law, Campbell
claims police illegally searched his sister Pamela's
apartment. He therefore contends that the trial court should
have suppressed the items found in the apartment. However,
Campbell withdrew his motion to suppress the fruits of the
search during the suppression hearing. Hence, the threshold
question is whether Campbell waived his challenge to the
search's legality.
     We find that he did. By failing to file a motion to
suppress illegally obtained evidence, a defendant waives any
objection to its admission. State v. Wade (1978), 

, 

, 

, paragraph three of
the syllabus, vacated on other grounds (1978), 

, 

, 

; State v. F.O.E. Aerie 2295 (1988),

, 

, paragraph two of the
syllabus. Obviously the same result occurs when a motion is
filed but later withdrawn.
     Campbell, however, argues that withdrawing the motion
should not be deemed a waiver, because the trial court
illegally forced him to choose between two constitutional
rights. When Campbell testified at the suppression hearing,
the prosecutor asked him whether he was near Turner's residence
on the night of December 23.   Defense counsel objected, but
the trial court overruled the objection. Only then did defense
counsel withdraw the motion.
     Campbell argues that the trial court, by overruling his
objection, forced him to withdraw the motion in order to avoid
self-incrimination. We disagree. Answering the prosecutor's
question could not have incriminated Campbell, because "when a
defendant testifies in support of a motion to suppress evidence
on Fourth Amendment grounds, his testimony may not thereafter
be admitted against him at trial on the issue of guilt …."
Simmons v. United States (1968), 

, 

, 

.
     Campbell also argues that his counsel rendered ineffective
assistance by withdrawing the motion. Campbell speculates that
counsel did not know Campbell's suppression testimony was
inadmissible at trial.
     However, counsel's decision "was reasonable considering
all the circumstances." Strickland, 

, 

, 

. First, even though Campbell's
hearing testimony was inadmissible in the state's
case-in-chief, the court might have allowed its use to impeach
Campbell if he later chose to testify at trial. See United
States v. Salvucci (1980), 

, 

, 

; 4 LaFave, Search and Seizure (2 Ed.
1987) 240-242, Section 11.2(d), and 349-351, Section 11.3(g); 1
Hall, Search and Seizure (2 Ed. 1991) 244-245, Section 5:42.
Second, Campbell's testimony might have led the state to the
discovery of other evidence against him. Of course, the
defense could have objected that such evidence was "fruit of
the poisonous tree," but that would have been hard to prove;
defense counsel could have reasonably decided to play it safe
by withdrawing the motion. To speculate, as Campbell urges,
that counsel simply did not know the law is inconsistent with
the "strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance …."
Strickland, 

, 

, 

. We therefore reject Campbell's ineffective-assistance
argument.
                               IV
                     Fifth Amendment Issues
     In his ninth proposition of law, Campbell contends his
statements were inadmissible because police did not advise him
of his rights, as required by Miranda v. Arizona (1966), 

, 

, 

. But the trial judge
denied the motion to suppress statements, implicitly finding
that the police gave the Miranda warnings.
     The record of the suppression hearing supports this
finding. Specialist Kerry Rowland testified that Officer Ron
Camden read Campbell's rights from a form printed on Camden's
pocket calendar, which the state placed in evidence. Campbell
said he understood his rights, was willing to talk, and had
nothing to hide. Campbell testified that the officers gave no
warnings, but the trial court evidently believed Rowland. We
defer to its findings, as we must. See State v. Mills (1992),

, 

; State v. Waddy,
supra, 

, 

.
     Campbell also argues that his waiver was the product of
police "trickery," hence involuntary. According to Campbell,
police arrested him on an unrelated rape charge, obtained his
Miranda waiver without telling him that he would also be
questioned about the murder, and interrogated him about the
rape before bringing up the murder. However, the record of the
suppression hearing does not support Campbell's allegation that
he was arrested for rape. It is true that Officer Camden so
testified at trial, but Campbell did not ask the trial court to
reconsider its ruling in light of Camden's trial testimony, and
we decline to hold that a trial court "erred in not
reconsidering its suppression ruling sua sponte." Govt. of
Virgin Islands v. Hernandez (C.A.3, 1975), 

. See, also, 4 LaFave, Search and Seizure (2 Ed. 1987)
521, Section 11.7(c).
     Even were we to consider Camden's trial testimony, we
could not find Campbell's Miranda waiver involuntary. "[A]
suspect's awareness of all the possible subjects of questioning
in advance of interrogation is not relevant to determining
whether the suspect voluntarily, knowingly, and intelligently
waived his Fifth Amendment privilege." Colorado v. Spring
(1987), 

, 

, 

.
     Campbell claims that the police conduct amounted to an
implied "affirmative misrepresentation" of the interrogation's
scope. Spring, 

, 

, 

. To begin with, it is unclear how an implied
misrepresentation could ever be an affirmative one. But that
need not detain us, for this case so closely resembles Spring
as to make any "affirmative misrepresentation" finding
inconceivable. In Spring, federal agents arrested a suspected
murderer on firearms charges. He waived his rights, and the
agents questioned him on the firearms charges before asking
about the murder. 

, 

,

. The Spring court found no
misrepresentation, and we see no basis for finding one here.
     Campbell also argues that counsel rendered ineffective
assistance because they did not specifically argue that
Campbell's Miranda waiver was obtained by "trickery." (See
proposition of law twenty-one.) However, we cannot call
counsel ineffective for overlooking this weak argument.
                               V
                    Sufficiency of Evidence
     In his tenth proposition of law, Campbell argues that the
evidence was insufficient to support a conviction. He contends
that the state failed to prove both that he killed Turner and
that he harbored a purpose to kill. Neither claim has merit.
     When a defendant challenges the sufficiency of the
evidence, "the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." (Emphasis sic.)
Jackson v. Virginia (1979), 

, 

, 

.
     The state's evidence, if believed, would allow a rational
trier of fact to find guilt. Campbell's fellow jail inmates,
Clardy and Roseman, testified that Campbell admitted killing
Turner. Campbell attacks their credibility, but we may not
"substitute our evaluation of witness credibility for the
jury's." State v. Waddy, supra, 

, 

. Moreover, Campbell made a similar admission to
Estella Roe.
     Campbell also asked Roe to provide him with a false
alibi. This strongly indicates consciousness of guilt. See
Cleveland v. McNea (1952), 

, 142, 

,
70, 

, 203. Accord 2 McCormick on Evidence (4 Ed.
1992) 190, Section 265; 2 Wigmore on Evidence (Chadbourn Rev.
1979 and 1991 Supp.) 133, 137, Section 278(2).
     Donna Roberts positively identified Campbell as the man
she saw lurking in the alley next to 1008 York Street on the
night of December 23. Campbell argues that Roberts could have
been mistaken, but that is a jury question. 

Finally, Campbell's fingerprint was on the light bulb outside
Turner's apartment; his palm print was on Turner's door; and
his shoes were stained with blood.
     Campbell also argues that the state failed to prove
purpose to kill. But Turner was stabbed four times in or near
vital areas (see discussion of third proposition of law,
infra), which does not suggest an accidental or reflexive
stabbing. We overrule Campbell's tenth proposition.
                               VI
                    Guilt-Phase Instructions
     Campbell's third, fourth, fifth, and sixth propositions of
law, and a supplemental proposition filed by leave of court on
October 1, 1993, allege errors in the guilt-phase
instructions.
                               A
                    Lesser Included Offense
     At trial, Campbell asked the trial court to instruct on
involuntary manslaughter as a lesser included offense of
aggravated murder. The court refused. In his third
proposition of law, Campbell argues that this refusal is
reversible error.
     Involuntary manslaughter, R.C. 2903.04, is a lesser
included offense of aggravated murder. State v. Thomas (1988),

, 

, paragraph one of the
syllabus. "The primary difference" between the two is that
aggravated murder requires purpose to kill, while involuntary
manslaughter requires only a killing as a proximate result of a
felony. State v. Jenkins (1984), 

, 15
OBR 311, 357, 

.
     Thus, an involuntary manslaughter instruction is justified
"only when, on the evidence presented, the jury could
reasonably find against the state on the element of
purposefulness and still find for the state on the defendant's
act of killing another." Thomas, 

, 

. The court must view the evidence in the light
most favorable to the defendant. State v. Wilkins (1980), 

, 

, 

.5
     Turner's wounds show a purposeful killing. The killer
inflicted four wounds in or near vital areas: two in the chest,
one in the chin, and one in which the killer drove his blade
all the way through Turner's wrist. (Campbell claims the wrist
is not a vital area. We disagree.) These wounds refute
Campbell's claim that he stabbed Turner "reflexively …
without purpose to kill and only so he could get away."
     Nor does the evidence suggest that Turner was killed in a
struggle over the knife, as Campbell argues. The coroner
testified that one wound -- a cut on Turner's thumb -- was "a
defense wound. It is postulated [i.e., assumed] to occur as a
result of a struggle over the weapon. … Either a struggle
or an attempt to ward off." That assumption does not explain
Turner's four other wounds.
     Campbell claims he entered Turner's apartment unarmed and
without purpose to kill. The evidence supports this claim, for
Turner was apparently killed with one of his own kitchen
knives. However, the issue is not what Campbell intended when
he broke in, but what he intended when he stabbed Turner. The
state did not allege, and did not have to prove, prior
calculation and design.
     Even when the evidence is viewed in the light most
favorable to Campbell, the number and location of his victim's
wounds would compel any reasonable trier of fact to find intent
to kill. Therefore, an involuntary manslaughter instruction
would have been improper. We overrule Campbell's third
proposition of law.
                               B
                 Other Guilt-Phase Instructions
     Campbell's other allegations of guilt-phase instructional
error also center on the issue of purpose. In his fourth
proposition of law, Campbell argues that the trial court erred
in defining "purpose" to the jury. According to Campbell, the
trial court's definition of "purpose" allowed the jury to find
purpose without finding, as R.C. 2903.01(D) requires for a
conviction, that the defendant "specifically … intended to
cause … death." Similarly, in his fifth proposition of
law, Campbell contends that the trial court gave a confusing
instruction on causation and foreseeability that may have
allowed the jury to convict without finding specific intent to
kill. See State v. Burchfield (1993), 

,

 (dictum). In his sixth proposition of
law, Campbell argues that the jury could have interpreted an
instruction as a directed verdict on one element of aggravated
burglary.
     Finally, in a supplemental proposition of law, Campbell
claims the trial court erred by instructing that purpose "is
determined from the manner in which [an act] is done, the means
or weapon used, and all the other facts and circumstances …
." According to Campbell, this allowed the jury to presume
(not merely infer) purpose to kill from the use of a weapon.
     Campbell failed to object to these instructions at trial
and therefore must show that the trial's outcome would clearly
have been different but for the alleged errors. State v. 

 In our view, the challenged instructions did not
demonstrably determine the outcome. The trial court also
expressly instructed: "No person may be convicted of aggravated
murder unless he is specifically found to have intended to
cause the death of another." (Emphasis added.) Further, the
judge said: "It must be established … that at the time in
question there was present in the mind of the defendant a
specific intention to kill Henry Turner …." (Emphasis
added.) And immediately after the instruction at issue in the
supplemental proposition, the trial court instructed that
"purpose to kill may be inferred" from the use of a deadly
weapon to inflict wounds "in a manner calculated to destroy
life or inflict great bodily harm …."   (Emphasis added.)
     Campbell concedes that it is "impossible to determine"
whether the jurors applied these concededly correct
instructions. Therefore, we cannot say that the jury would
clearly have acquitted Campbell had the challenged instructions
not been given, especially since there was strong evidence of
specific intent to kill. (See discussion of third proposition
of law, supra.) Campbell argues that any uncertainty should be
resolved in his favor, but that would be inconsistent with
plain error analysis. Finding no plain error, we treat these
propositions as waived and need not reach their merits.
Campbell's fourth, fifth, sixth, and supplemental propositions
are therefore overruled.
     Campbell also contends that his counsel rendered
ineffective assistance by not objecting to the instructions on
purpose, causation, and foreseeability (see proposition of law
twenty-one). However, counsel could reasonably have thought
the trial court's strong instructions on specific intent to
kill were sufficient to protect their client. Moreover, given
the evidence of purpose, the alleged instructional errors do
not undermine our confidence in the verdict. Campbell has
therefore failed to show "a reasonable probability that, but
for counsel's [failure to object], the result of the proceeding
would have been different." Strickland, 

, 

, 

.
                              VII
                       Improper Testimony
     In his first proposition of law, Campbell claims the trial
court erred by allowing the following testimony regarding
Campbell's interrogation:
     "A [Officer Camden] … I made the statement to
[Campbell] that I felt he had committed burglaries before with
people in the house asleep. At that point he says, yeah, I
did. And then he said … that he believed he was committing
burglaries in this case[.] … I told him the only difference
was -- is that this time Turner woke up and he killed him.
     "Q [Prosecutor] Did he deny that?
     "A He denied that."
     The state argues that Campbell waived this issue by not
raising it in the court of appeals. We agree. See Toledo v.
Reasonover (1965), 

, 

, 

; State v. Jones (1965), 

, 

, 

. We therefore apply the plain error rule. See
State v. Broom (1988), 

, 

. Here, the other evidence of guilt was so strong that we
cannot say Campbell would clearly have been acquitted but for
Camden's testimony. Hence, we find no plain error and treat
the issue as waived.
                              VIII
                      Gruesome Photographs
     In his eleventh proposition of law, Campbell challenges
the admission of gruesome photographs and slides. In a capital
case, such photographs are admissible if the probative value of
each one outweighs its danger of material unfair prejudice and
the photos are not repetitive or cumulative. State v. Maurer,
(1984), 

, 15 OBR 379, 

,
paragraph seven of the syllabus.
     The court of appeals held any error waived, and for the
most part we agree. However, in objecting to the slides,
Campbell argued that they "would just be repetitive" of the
photos. He thus preserved his objection to State's Exhibit 13
(photo) and 28A (slide), which are indeed repetitive. Since
they are also gruesome (both exhibits show the knife in
Turner's wrist), it was error to admit both. However, we see
no prejudice in a single repetition of a highly relevant
image. We find the error harmless.
                                IX
                Relevance of Forensic Testimony
     Forensic serologist Denise Cargo testified for the state,
giving her expert opinion that Campbell's shoes were stained
with human blood. In his seventh proposition of law, Campbell
argues that Cargo's testimony was irrelevant, because she could
not draw any further conclusions (e.g., blood type) from the
stains. But Campbell's arguments go to weight, not relevance.
Obviously, human bloodstains on Campbell's shoes make it
somewhat likelier that he stabbed someone. See Evid.R. 401.
     Campbell also argues that Cargo's testimony should have
been excluded under Evid. R. 403(A) because the jurors may have
been so impressed by her expertise that they overrated her
testimony's value. However, such speculation does not justify
silencing relevant testimony.
                                X
                       Cumulative Evidence
     While testifying, Estella Roe read aloud Campbell's letter
urging her to lie for him. The letter itself was later
admitted as State's Exhibit 25. In his eighth proposition of
law, Campbell argues that the letter should have been excluded
as cumulative. However, Evid.R. 403(B) does not require
exclusion of cumulative evidence. The court has discretion to
admit or exclude it.    We find no abuse of discretion and hence
overrule this proposition.
                                XI
                     Prosecutorial Misconduct
     In his thirteenth proposition of law, Campbell claims that
prosecutorial misconduct denied him a fair trial in both
phases. However, Campbell failed to object at trial, waiving
any but plain error. We find no plain error. Many of the
alleged errors were quite minor, and many were offset by
instructions from the trial court. In no case can we find that
the alleged errors were so prejudicial that the outcome of the
trial or sentencing hearing would clearly have been otherwise
had they not occurred. Hence, the matters raised in Campbell's
thirteenth proposition are waived, and we need not reach their
merits.
     Campbell's twentieth proposition of law alleges that
prosecutorial misconduct on voir dire affected the jury's
penalty phase deliberations. Campbell objected to none of the
alleged misconduct; thus, he waived the issue absent plain
error. The alleged misconduct is subtle, involving particular
choices of word or phrase. To find plain error, we would have
to assume that, after a trial on guilt or innocence and a
penalty phase featuring arguments by counsel and instructions
from the judge, the jury's sentencing recommendation was
determined by something the prosecutor said in voir dire. That
strikes us as implausible. See Darden v. Wainwright (1987),

, 

, 

.
                               XII
                   Penalty-Phase Instructions
     In his fourteenth proposition of law, Campbell claims the
trial court erred by refusing to instruct the jury that it
could consider mercy during the penalty phase. This
proposition lacks merit. See State v. Lorraine (1993), 

, 

.
     In his fifteenth proposition of law, Campbell contends
that the penalty-phase instructions were erroneous. However,
at trial Campbell neither submitted proposed instructions nor
objected to the court's instructions. See Crim.R. 30(A).
Campbell's objections are therefore waived and cannot be the
basis for reversal. We overrule Campbell's fifteenth
proposition.
                              XIII
                   Other Penalty-Phase Issues
     The trial court sentenced Campbell to death on Count One
of the indictment (aggravated murder) and to a prison term on
Count Two (aggravated burglary), to be served "consecutive to
Count One." In his seventeenth proposition of law, Campbell
argues that the trial court could not make a prison sentence
consecutive to a death sentence. While the prison sentence is
rendered moot by the imposition of the death sentence, we find
no error. Cf. State v. Brown (1988), 

, 

.
     In his eighteenth proposition of law, Campbell attacks the
trial court's weighing of the aggravating circumstance and
mitigating factors. First, Campbell complains that the trial
court weighed "nonstatutory aggravating circumstances" against
him. We disagree. Although the sentencing opinion refers
several times to "aggravating circumstances," the trial judge
understood perfectly well that there was only one aggravating
circumstance: indeed, he specifically identified it in his
opinion. The opinion correctly states that the aggravating
circumstance was the commission of aggravated murder "while the
defendant was committing aggravated burglary."
                              XIV
                     Ineffective Assistance
     In his twenty-first proposition of law, Campbell charges
his trial counsel with ineffective assistance, listing thirteen
alleged errors. We have analyzed several of these claims
above; here, we turn to those not already discussed.
     Campbell argues that counsel should have raised several
objections during voir dire and trial. But, "failure to object
to error, alone, is not enough to sustain a claim of
ineffective assistance …." State v. Holloway (1988), 

, 

. Because
"[o]bjections tend to disrupt the flow of a trial, [and] are
considered technical and bothersome by the fact-finder,"
Jacobs, Ohio Evidence (1989), at iii-iv, competent counsel may
reasonably hesitate to object in the jury's presence.
     Campbell claims counsel should have objected to the trial
court's reasonable doubt instruction and to the instruction
that the jury's penalty-phase verdict was a
"recommendation."    However, it was reasonable not to object.
See State v. Nabozny (1978), 

, 

,

, vacated on other grounds (1978), 

,

, 

, and State v. Hicks (1989), 

, 

. Accordingly, his
twenty-first proposition is overruled.
     In his twenty-second proposition of law, Campbell accuses
his appellate counsel of ineffective assistance because they
did not raise twenty-six issues in the court of appeals.
     Counsel need not raise all nonfrivolous issues on appeal.
Jones v. Barnes (1983), 

, 

, 

. Campbell's counsel raised
thirteen assignments of error in the court of appeals. Counsel
could have reasonably decided they could not add twenty-six
more issues without "burying good arguments … in a verbal
mound made up of strong and weak contentions." 

, 

, 

. Moreover, several
issues on Campbell's list were waived at trial, and some were
precluded by settled law. Others may have had arguable merit,
but are "sufficiently problematical that the refusal to raise
them cannot be assailed as an unreasonable professional
judgment." Cunningham v. Henderson (C.A.2, 1984), 

.
                               XV
                         Settled Issues
     In his nineteenth proposition of law, Campbell complains
that the trial court overruled his motion for individual,
sequestered voir dire. However, the court had discretion to
voir dire prospective jurors as a group. State v. Mapes
(1985), 

, 19 OBR 318, 323-324, 

; State v. 

 paragraph two of the
syllabus. Campbell also argues that the court should have
explained why it denied the motion. But Campbell has the
burden to show abuse of discretion. 

, 19
OBR at 324, 

. Trial courts need not disprove
abuse by explaining every discretionary decision.
     Propositions of law twenty-three through twenty-eight
resurrect well-settled issues and are summarily overruled. See
State v. Poindexter (1988), 

, 

;
State v. Spisak (1988), 

, 

.
Moreover, Campbell concedes that propositions twenty-three and
twenty-five were not preserved at trial, and we also find that
the issue raised in proposition twenty-six was not raised at
trial. These propositions are waived.
                              XVI
                  Independent Sentence Review
     Having affirmed Campbell's conviction, we review his death
sentence de novo for appropriateness and proportionality.
Campbell relies on two mitigating factors: his "history,
character, and background," R.C. 2929.04(B), and residual doubt
of guilt, see State v. Watson (1991), 

, 

. 6
     When Campbell was five, his face was badly scarred in a
fire. He was in the hospital for a year. Psychologist David
Chiappone testified that this affected Campbell profoundly. At
age five, "you're trying to get from your parents a sense of
faith in the outside world." Campbell's long hospitalization
distorted "that normal developmental path," and he began to
feel that others saw him "for his scars, not for himself."
     Later events reinforced Campbell's alienation. Having
been hospitalized so long, he was held back in school, and his
schoolmates made fun of his scars. To relieve feelings of
inadequacy and anger, Campbell drank and took drugs, which kept
him from "develop[ing] … other mechanisms to deal with
[his] feelings …."
     However, Chiappone also testified that Campbell told him
"that he received numerous treatments up until age 14 … or
15 at which point they were going to have plastic surgery. But
he said … he felt he adjusted to it and he didn't accept
the plastic surgery."
     Chiappone apparently did not believe Campbell, but our
duty is to independently weigh the evidence. While we respect
Chiappone's professional opinion, Campbell's own words are the
most persuasive evidence of his state of mind. That is
especially true given the context in which Campbell spoke:
Chiappone was examining him to see whether his psychological
state might yield mitigating factors to help him avoid the
death penalty. And, Campbell's actions corroborate his words;
he did, after all, refuse the plastic surgery.
     Moreover, Campbell's sister Pamela was also scarred in the
fire and hospitalized for a year; she too was ridiculed as a
child. Yet she is a law-abiding citizen. Cf. Waddy, 

, 

. On these facts, we cannot
give much weight to the possibility that Campbell's crimes are
"attributable to … emotional and mental problems," making
him "less culpable than defendants who have no such excuse."
California v. Brown (1987), 

, 

, 

 (O'Connor, J., concurring).
     As to residual doubt, Campbell points out that the
fingerprints outside Turner's apartment could have been placed
there anytime; that the blood on Campbell's shoes was
unidentifiable; and that the door to the apartment building was
not forced, yet Campbell apparently had no key to that door.
     However, Campbell's claims of innocence are unpersuasive.
He tried to fabricate an alibi, hardly the act of an innocent
man. His fingerprint was on the light bulb outside Turner's
apartment, and he admitted that he never changed the light
bulbs in public areas of the building when he lived there. He
told Estella Roe, Ronys Clardy, and Angelo Roseman that he had
killed Turner. And Donna Roberts saw him lurking in an alley
outside the apartment building on the night of the murder.
     Campbell attacks Roberts' identification at great length.
He says the lighting was dim, but Roberts did not so testify;
although the streetlamp was across the street from her, she
said its light illuminated the alley. Besides, she was just
inches from Campbell, a man with a distinctively scarred face
whom she already knew.
     Campbell points out that Roberts was coming home from a
bar when she saw him, but we reject his insinuation. Roberts
testified without contradiction that she was at the bar only
briefly and had nothing to drink that night.7 Campbell also
claims that Roberts admitted not paying attention to who was
around, but what she really said was that she had not been
paying attention until seeing Campbell in the alley:
     "Q. [Defense counsel] And the reason you got startled is
because even up to that point you weren't paying attention to
who was around, correct?
     "A. [Roberts] Right.
     "Q. And at that point when you first saw somebody like
that, you got startled?
     "A. Yeah, I jumped and grabbed my heart because it scared
me."
     Finally, Campbell argues that police tainted Roberts'
identification by showing her Campbell's picture alone instead
of in a photo array. But Roberts already knew Campbell. Thus,
her identification of him is highly reliable. See State v.
Parker (1990), 

, 

. On
this record, residual doubt deserves no mitigating weight.
     Against the mitigating factors, we must weigh the
aggravating circumstance of murder committed during aggravated
burglary. The mitigating factors are weak, and we find that
the aggravating circumstance outweighs them beyond a reasonable
doubt. The death sentence is therefore appropriate.
     We also find the death sentence proportionate compared to
sentences approved or disapproved by this court in similar
capital cases. In similar cases of burglary-murder, we have
affirmed death sentences in the face of far stronger
mitigation. For instance, in State v. 

, 

, the defendant was deformed and
retarded. In childhood he was not only taunted, but beaten by
other children -- and teased by his family and teachers as
well. Psychologists testified that he lacked substantial
capacity to appreciate the criminality of his conduct or
conform to the law. 38 Ohio St.3d at 245-246, 

. Campbell presented no such psychological testimony here.
     Similarly, in State v. Murphy (1992), 

,

, the defendant was only twenty-one and had been
"the victim of verbal, physical and sexual abuse as a child …
*." 

, 

. His intelligence was in
the bottom six or seven percent of the population. 

 Yet,
Murphy received a death sentence for a similar crime, the
murder of an elderly victim during an invasion of her home. It
is true that Murphy was convicted of two capital
specifications, robbery-murder and burglary-murder; unlike
Campbell, he succeeded in robbing his victim. But we do not
think that difference so significant as to warrant a lighter
punishment for Campbell.
     Finding the death penalty appropriate and proportionate,
we affirm the sentence of death. The judgment of the court of
appeals is therefore affirmed.
                                 Judgment affirmed.
     Moyer, C.J., Douglas and Resnick, JJ., concur.
     F.E. Sweeney, J., concurs in judgment only.
     A.W. Sweeney and Wright, JJ., concur in part and dissent
in part.
FOOTNOTES
     1 A more precise term would be "procedurally defaulted."
See, e.g., Engle v. Isaac (1982), 

, 

, 

. However, we have usually
described failures to object and similar procedural defaults as
"waivers," even though they are not the kind of waivers
described in Johnson v. Zerbst (1938), 

, 

, 

.
     2 Campbell cites In re M.D. (1988), 

, 

, syllabus, for the proposition that we may review
waived issues even where the alleged error does not amount to
plain error. But in M.D., there was no waiver; the appellant
had raised her due process claim at trial via motion to
dismiss. 38 Ohio St.3d at 151, 527 N.E.2d at 287-288.
     Although we sometimes discuss the merits of a waived
proposition of law as an alternative basis for rejecting it,
that is consistent with the plain error rule. See Harris v.
Reed (1989), 

, 

, 

. Our cases make clear that we will
not overturn a conviction for alleged error not raised below,
unless it amounts to plain error. See, e.g., State v. Coleman
(1988), 

, 

 (arguments
not preserved below "cannot be considered"); State v. Greer
(1988), 

, 

.
     3 R.C. 2929.03(D)(1) provides that, in capital cases, "[a]
pre-sentence investigation … shall not be made except upon
request of the defendant."
     We note that Campbell was convicted of non-capital
felonies as well as capital crimes. In sentencing Campbell on
the non-capital crimes, the judge was required to obtain a
PSI. Crim.R. 32.2(A). However, the judge did not limit his
use of the PSI to the non-capital felonies; he also considered
it in sentencing Campbell to death. Cf. State v. Cooey (1989),

, 

 (victim impact
statement was not error where used only in sentencing on
non-capital crimes) with State v. Cook (1992), 

, 

 (improperly ordered PSI was
error where trial judge considered it in sentencing defendant
to death).
     4 The PSI was missing from the record when it went to the
court of appeals, but has since been restored. See State v.
Campbell (1992), 

, 

 (granting
motion to supplement record).
     5 We therefore do not consider the testimonies of Roseman
or Clardy, though they support a finding of intent, since a
reasonable trier of fact could have disbelieved those witnesses.
     6 At trial, Campbell also argued that his youth was
mitigating, but he was twenty-seven at the time of the
offense. Accordingly, the R.C. 2929.04(B)(4) mitigating factor
does not apply. See State v. Rojas (1992), 

, 

; State v. Carter (1992), 

, 

.
     7 Roberts met her sister and a friend at the bar, and they
decided to go to Roberts' sister's house. The three spent an
hour to ninety minutes there, talking; then Roberts' friend
drove her back to the bar. Roberts was there less than a
minute; she walked in, turned, and walked right back out.
     A.William Sweeney, J., concurring in part and dissenting
in part.     While I concur in the reasoning of Parts I through
XV of the majority opinion, I am constrained to dissent from
the majority's independent review of the death penalty
sentence. In my view, whether the aggravating circumstance
outweighs the mitigating factor of defendant's psychological
problems is such a close call that I cannot subscribe to the
majority's conclusion that the aggravating circumstance
outweighs the mitigating factors beyond a reasonable doubt.
Psychologist David Chiappone submitted compelling evidence that
the burns and scars endured by defendant as a child are largely
responsible for his antisocial behavior and drug/alcohol abuse
problems. Thus, I believe that defendant's antisocial behavior
is in part "attributable to … emotional and mental problems,"
making him "less culpable than defendants who have no such
excuse." California v. Brown (1987), 

, 

, 

 (O'Connor, J., concurring).
     Accordingly, I would hold that the aggravating
circumstance does not outweigh mitigation beyond a reasonable
doubt, and therefore reverse the death penalty and remand for
resentencing under State v. Penix (1987), 

,

.
     Wright, J., concurs in the foregoing opinion.