State v. Keith

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. KEITH, APPELLANT.
                       [Cite as State v. Keith, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
      (No. 96-1149—Submitted March 4, 1997—Decided October 1, 1997.)
      APPEAL from the Court of Appeals for Crawford County, No. 3-94-14.
                                  __________________
        {¶ 1} Appellant, Kevin Keith, appeals from his convictions and sentence to
death for the aggravated murders of Marichell Chatman, Linda Chatman, and
Marchae Chatman and his convictions for the attempted aggravated murders of
Quanita Reeves, Quinton Reeves, and Richard Warren.
        {¶ 2} On the evening of February 13, 1994, Marichell Chatman, her sevenyear-old daughter, Marchae, and Richard Warren, who had been living with
Marichell and Marchae for several weeks, were at Marichell’s apartment in the
Bucyrus Estates. At the time, Marichell was babysitting her young cousins, Quanita
and Quinton Reeves. At approximately 8:45 p.m., Marichell’s aunt, Linda
Chatman, arrived at the apartment to pick up Quanita and Quinton, Linda’s niece
and nephew.
        {¶ 3} A few minutes after Linda arrived, Warren, momentarily diverted
from a basketball game he was watching on television, noticed a man standing
outside the apartment door. Although the man began to walk away without
knocking, Warren opened the door. The man turned and asked for Linda.
        {¶ 4} While Linda went outside and spoke with the man, Marichell told
Warren the man’s full name. Although Warren could recall only the first name,
Kevin, he later identified appellant as the man at the door.                Marichell also
mentioned that Kevin had been involved in a big drug bust.
                             SUPREME COURT OF OHIO




       {¶ 5} After a short time, Linda and appellant returned to the apartment,
where appellant and Warren had a brief conversation. According to Warren,
appellant appeared to have his turtleneck shirt pulled up over the bottom part of his
face and even drank a glass of water through it.
       {¶ 6} After drinking the glass of water, appellant pulled a nine-millimeter
handgun from a plastic bag he carried and ordered everyone to lie on the floor.
Appellant repeatedly scolded Marichell for using his first name when she asked
what he was doing and why. Despite Marichell’s pleas with appellant on behalf of
the children, appellant placed the gun to her head. After ordering Marichell to be
quiet, appellant said, “Well, you should have thought about this before your brother
started ratting on people.” Marichell responded, “Well, my brother didn’t rat on
anybody and even if he did, we didn’t have anything to do with it.” Testimony at
trial confirmed that Marichell’s brother, Rudel Chatman, was a police informant in
a drug investigation involving appellant. According to the presentence report, the
month prior to the murders, appellant was charged with several counts of
aggravated trafficking.
       {¶ 7} Next, Warren heard a gunshot but was forced to turn away when a
bullet struck him in the jaw. Warren heard ten to twelve additional shots, two more
striking him in the back. After he heard the apartment door close, Warren ran out
of the apartment, across a snow-covered field to Ike’s Restaurant, yelling for help.
Four or five more shots were fired, one striking him in the buttocks and knocking
him down. Warren was able to get up and obtain help from the restaurant.
       {¶ 8} Another Bucyrus Estates resident, Nancy Smathers, heard several
popping noises at approximately 9:00 p.m. As she looked out her front door,
Smathers saw a large, stocky black man run to the parking lot and get into a lightcolored, medium-sized car. As the car sped away, it slid on the icy driveway and
into a snowbank. When the driver got out of the car, Smathers noticed that the car’s
dome light and the light around the license plate did not work. The driver rocked




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                                January Term, 1997




the car back and forth for nearly five minutes before he was able to free the car
from the snowbank. Several weeks later, Smathers informed Bucyrus Police
Captain Michael Corwin that, after seeing appellant on television, she was ninety
percent sure appellant was the man she had seen that night.
       {¶ 9} When medical personnel arrived at the Bucyrus Estates apartment,
Linda and Marichell Chatman were dead, having suffered multiple gunshot
wounds, including fatal wounds to the neck or head. All three children initially
survived the attack. However, Marchae’s two gunshot wounds to her back proved
fatal. The Reeves children each sustained two bullet wounds and serious injuries.
       {¶ 10} Approximately eight hours after the shootings, Warren was
recovering from surgery at a Columbus hospital. During a postoperative interview
with a nurse, Warren wrote “Kevin” on a piece of paper as the name of his assailant.
Later that day, Bucyrus Police Captain John Stanley had two telephone
conversations with Warren. During the second conversation, Stanley mentioned
three or four possible last names for Kevin. At trial, Stanley could only recall that
he mentioned the names Kevin Thomas and Kevin Keith. Warren stated that he
was seventy-five percent sure the name he heard from Marichell was Kevin Keith.
When shown a photo array of six suspects, Warren chose appellant’s picture and
told police he was ninety-five percent sure that appellant was the murderer.
       {¶ 11} Investigators recovered a total of twenty-four cartridge casings from
the crime scene area, which had all been fired from the same gun. In addition to
those, investigators recovered a casing found on the sidewalk across from the
entrance to a General Electric plant. On the night of the murders, appellant picked
up his girlfriend, Melanie Davison, from work at the entrance to the General
Electric plant where the casing was found.
       {¶ 12} At the snowbank where Smathers witnessed the getaway car slide,
investigators made a cast of the tire tread and of the indentation in the snowbank
made by the car’s front license plate number—“043.” The indentation from the




                                          3
                            SUPREME COURT OF OHIO




license plate matched the last three numbers of a 1982 Oldsmobile Omega seized
from Melanie Davison shortly after she visited appellant in jail, under the
psuedonym of Sherry Brown, a few weeks after the murders.
       {¶ 13} The Oldsmobile was registered to Alton Davison, Melanie’s
grandfather, and was also regularly used by Melanie. Davison had put four new
tires on the Omega six months prior to the murders. Davison estimated that by
February 1994, the new tires had been driven less than 3,000 miles without any
problems or need for replacement. Although the cast taken of the tire tread at the
crime scene did not match tires found on the Oldsmobile Omega one month later,
the cast did match the tread of the tires purchased by Alton Davison as shown on
the tire’s sales brochures. Additionally, the tires found on the Oldsmobile Omega
had been manufactured in January 1994 and showed a minimal amount of wear.
       {¶ 14} The grand jury indicted appellant on three counts of aggravated
murder, each carrying a specification that the murder was committed as part of a
course of conduct involving the killing of two or more persons. R.C. 2929.04(A)(5).
Appellant was also indicted on three counts of attempted aggravated murder. R.C.
2923.02.
       {¶ 15} After a two-week trial, a jury found appellant guilty of all counts.
Following the verdict, defense counsel requested a presentence investigation and a
postconviction sanity hearing. During the penalty phase of the trial, defense
counsel waived both opening and closing statements. The court submitted, without
objection, the presentence investigation report and the results of the psychological
examination to the jury. The jury recommended and the trial court imposed a death
sentence for each of the aggravated murder counts. The court of appeals affirmed
the convictions and the sentence.
       {¶ 16} The cause is now before this court upon an appeal as of right.
                              __________________




                                         4
                                January Term, 1997




       Russell B. Wiseman, Crawford County Prosecuting Attorney, Betty D.
Montgomery, Attorney General, Stuart W. Harris and Michael L. Collyer, Assistant
Attorneys General, for appellee.
       Reinhart Law Office and Harry R. Reinhart; Carol A. Wright and Stephen
Cockley, for appellant.
                               __________________
       COOK, J.
       {¶ 17} Appellant presents this court with eight propositions of law, raising
issues as to both the guilt and sentencing phases of his trial. In accordance with the
mandate of R.C. 2929.05(A), we have considered each of appellant’s propositions
of law and have reviewed the sentence for appropriateness and proportionality.
       {¶ 18} We have previously held that R.C. 2929.05 does not require this
court to address and discuss, in opinion form, each proposition of law raised in a
capital case. See, e.g., State v. Davis (1996), 

, 

; State v. Allen (1995), 

, 

.
Accordingly, we address only those issues that warrant discussion. For the reasons
that follow, we affirm the judgment of the court of appeals as to both the convictions
and sentence.
                                          I
                                   GUILT PHASE
                                          A
                                     Voir Dire
       {¶ 19} In his second proposition of law, appellant argues that the trial court
erred by instructing prospective jurors, prior to voir dire, that their sentencing
determination would be a “recommendation” to the court. The trial court instructed
the jury: “[D]epending on your action in the first trial, you might then be involved
in a second proceedings [sic]. If the second proceeding takes place, you will have
to make a recommendation, and I repeat, it is a recommendation to the Court on a




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sentence. And one of the recommendations could be the death penalty. If you do
make a recommendation, before that sentence is ordered, this Court must
independently determine if that recommendation is supported with the proof of the
evidence beyond a reasonable doubt.”         These comments, appellant argues,
misstated the law and served to diminish the jury’s sense of responsibility in
recommending an appropriate sentence.
       {¶ 20} Appellant’s counsel made no objection to the court’s preliminary
instruction and thus waived all but plain error. See State v. Slagle (1992), 

, 

. Plain error is an obvious error or defect in
the trial proceedings that affects a substantial right. Crim.R. 52(B). Under this
standard, reversal is warranted only when the outcome of the trial clearly would
have been different without the error. State v. Long (1978), 

, 

, 

, paragraph two of the syllabus.
       {¶ 21} R.C. 2929.03(D)(2) states that “[i]f the trial jury recommends that
the offender be sentenced to life imprisonment … the court shall impose the
sentence recommended of the jury upon the offender.” (Emphasis added.) The trial
court’s instruction accurately reflected the law.     At the heart of appellant’s
complaint, then, is that the trial court informed the jury that a recommended death
sentence was reviewable by the court but did not inform them that a
recommendation for a life sentence was binding upon the court.
       {¶ 22} We prefer that no reference be made to the finality of the jury’s
sentencing decision at all. See, e.g., State v. Rogers (1986), 

, 28 OBR 480, 485, 

, reversed on other grounds (1987), 

, 

. Thus, the trial court’s failure to inform the jury of
the binding nature of the life sentence recommendation does not constitute plain
error. Additionally, we have consistently rejected the argument that an instruction
informing the jury that a recommendation of death is reviewable by the trial court
constitutes reversible error. See, e.g., State v. Carter (1995), 

,




                                         6
                                 January Term, 1997




559, 

; State v. Woodard (1993), 

, 

. Likewise, we find no plain error in the trial court’s preliminary
instruction to the potential jurors in the case at bar.
        {¶ 23} Nor do we find trial counsel ineffective for failing to object to the
trial court’s “recommendation” language. Reversal of a conviction on the grounds
of ineffective assistance of counsel requires that defendant show, first, that
counsel’s performance was deficient, and second, that the deficient performance
prejudiced the defense so as to deprive defendant of a fair trial. Strickland v.
Washington (1984), 

, 

, 

.
We find that appellant has shown neither that counsel’s performance fell below an
objective standard of reasonable representation nor that there exists a reasonable
probability that, were it not for counsel’s errors, the result of the trial would have
been different. State v. Bradley (1989), 

, 

,
paragraphs two and three of the syllabus.
        {¶ 24} In this same proposition of law, we are told that the trial court erred
by excluding prospective jurors who expressed “scruples” about the death penalty.
Appellant directs his complaint first at the form of the question the trial court posed
to each potential juror. The trial court asked whether “[i]n a proper case if the facts
warrant it and the law permits it, could you join in signing a verdict form which
might recommend to the Court the imposition of the death penalty?”
        {¶ 25} Because appellant failed to object to the court’s question, we apply
the plain error standard and reverse only if the outcome of the trial clearly would
have been different without the error. Long, 

, 

, 

, paragraph two of the syllabus. A prospective juror may be excused for
cause because of his general opposition to the death penalty when “the juror’s views
would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and oath.” State v. Rogers (1985), 

, 17 OBR 414, 

, paragraph three of the syllabus, vacated and




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                              SUPREME COURT OF OHIO




remanded on other grounds (1985), 

, 

, 

,
following Wainwright v. Witt (1985), 

, 

, 

.
        {¶ 26} Although it is true, as appellant now challenges, that the trial court
did not use the language “prevent or substantially impair” in his question to the
jurors, we find no plain error in the procedure utilized by the court. The trial court’s
question was designed to elicit a response that would ensure that jurors could fairly
and impartially consider the death penalty in accordance with the law.
        {¶ 27} Appellant next challenges the excusal of jurors based on their
responses to the trial court’s question. When asked if they could recommend the
death penalty if the law permitted and the facts warranted it, three jurors responded,
“No … I don’t think so,” “No, I don’t think I can,” and “I don’t think I can do
that.” Three other jurors responded, “That is bothering me,” “That would be an
uncomfortable thing for me to do,” and “I have some problems with that.” Each
juror was excused by the trial court without further inquiry and without objection
by defense counsel. Appellant argues that these jurors were erroneously excluded
because they did not unequivocally state that they would not impose the death
penalty.
        {¶ 28} The Sixth Amendment’s guarantee of an impartial jury is violated
by the exclusion of an impartial juror simply because he expresses some
reservations about imposing the death penalty. Witherspoon v. Illinois (1968), 

, 

, 

. It is not
violated, however, by the exclusion of a juror whose expressed reservations are
such as to “‘prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.’” Wainwright v. Witt, 

, 

, 

, quoting Adams v. Texas (1980), 

, 

, 

. Because determinations of
juror bias largely depend on the trial judge’s assessment of the potential jurors’




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                                January Term, 1997




demeanor and credibility, deference must be paid to the trial court. Witt, 

, 

, 

.
       {¶ 29} We conclude that the trial court acted within its discretion when it
excluded prospective jurors whose responses to the court’s question reflected an
inability to follow the law or the court’s instructions in imposing the death sentence.
State v. Mack (1995), 

, 

. We have
deferred to the trial court’s determination of juror bias where, similar to this case,
a juror responded that she did not think she could fairly consider the death penalty.
State v. Combs (1991), 

, 

.
       {¶ 30} The more difficult question arises in the instance of the jurors who
indicated only that they would be either “bothered” or “uncomfortable” in
recommending a death sentence or would find recommending the death penalty
“difficult.” Nothing in the printed record indicates whether their discomfort with
recommending the death penalty would impair their ability to follow the law.
       {¶ 31} However, the fact that there were no objections to the removal of
these prospective jurors may support the propriety of the trial court’s decision.
Wainwright v. Witt, 

, 

, 

.
Although the printed record may not be clear, the reason for the excusals may well
have been readily apparent to those viewing the jurors as they answered the
question. 

 This conclusion is further supported by the trial court’s conduct
during the voir dire process. Earlier in voir dire, the trial court noted hesitation in
a juror’s response to the court’s question and on two occasions further probed into
a jurors’ responses to the question. Apparently, the trial judge did not think further
inquiry was necessary in the challenged instances. Likewise, counsel did not object
or attempt to rehabilitate the jurors. Accordingly, we defer to the trial court’s
determination of juror bias under these circumstances.
       {¶ 32} Even assuming there was error, given the absence of an objection,
the error is not a plain one; that is, the outcome of the trial would not have clearly




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been different absent the error. Cf. Bracy v. Gramley (C.A.7, 1996), 

, reversed on other grounds (1997), 

, 

, 

 (in the absence of an objection, trial court’s error, if any, in excusing juror based
on his answer that he would “probably” not consider imposing the death penalty
was not an error of constitutional proportions).
        {¶ 33} Finally, in this second proposition of law, appellant alleges that his
trial counsel was ineffective for failing to object to the excusal of the “scrupled”
prospective jurors. Reversal of a conviction on the grounds of ineffective assistance
of counsel requires that defendant show, first, that counsel’s performance was
deficient, and second, that the deficient performance prejudiced the defense so as
to deprive defendant of a fair trial. Strickland, 

, 

,

. “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” 

, 

, 

.
        {¶ 34} We have previously declined to call counsel ineffective for failing to
rehabilitate jurors in this context, stating counsel was in a much better position to
determine whether the jurors merited in-depth examination. State v. Phillips
(1995), 

, 

. Recognizing that voir dire
is largely a matter of strategy and tactics, we find that counsel in the present case
was in a much better position to determine whether the prospective jurors qualified
to be on the panel. The reason for excusing these prospective jurors may have been
readily apparent to those viewing the jurors as they answered the question. Earlier
in voir dire, counsel noted hesitation in another juror’s response to the trial court’s
death penalty question and inquired further about her views on the death penalty.
In the case of the excused jurors, the trial court did not inquire further and counsel
did not object or attempt to question when both had done so earlier in the voir dire
process. Moreover, counsel’s failure to object to the jurors’ excusal for cause may




                                          10
                                January Term, 1997




have saved him from later exercising a peremptory challenge to remove these jurors
for some reason not evident from the printed record before us.
       {¶ 35} Even if we were to assume counsel was deficient, we would
nonetheless find that appellant was not prejudiced by counsel’s performance. To
demonstrate prejudice, appellant must show that there exists a reasonable
probability that, were it not for counsel’s errors, the result of the trial would have
been different. State v. Bradley (1989), 

, 

,
paragraph three of the syllabus.
       {¶ 36} Although not cited by appellant in support of this proposition of law,
we find that Gray v. Mississippi (1987), 

, 

, 

, is significant here.    In Gray, the Supreme Court held that a wrongful
Wainwright v. Witt exclusion was not subject to a harmless error analysis. The
court reasoned that prejudice to a defendant from a wrongful exclusion can be
presumed because such an error results in a jury “stacked” against the defendant
and “organized to return a verdict of death.” 

, 

, 

.
       {¶ 37} We find, however, the Gray analysis unpersuasive in the context of
ineffective assistance of counsel. First, Gray is distinguishable on factual grounds.
In that case, as the Supreme Court held, voir dire showed that the prospective juror
was “‘clearly qualified to be seated as a juror under the Adams and [Wainwright v.]
Witt criteria,’” and, thus, was wrongfully excluded. 

, 

, 

; see, also, 

, 

, 

 (Powell, J., concurring). In contrast, in the case at bar, both the trial court
and counsel agreed that the prospective jurors were not qualified to sit on the panel
before that was clearly established by voir dire. As the Gray court noted, the
inadequate questioning regarding these jurors’ views precludes an appellate court
from determining whether the trial judge erred in removing them. 

-
663, 

, 

.




                                         11
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       {¶ 38} In any event, nothing in Gray persuades us to extend its holding
regarding the presumption of prejudice to the ineffective assistance of counsel
claim. Thus, we decline to presume that counsel’s error, if any, resulted in an
impaneled jury that was stacked against the defendant or organized to return a
verdict of death. To the contrary, the record demonstrates that the seated jurors
were able to follow their oaths and make a recommendation of death only when the
law permitted and the facts warranted it. Thus, we find that appellant has failed to
demonstrate a reasonable probability that the outcome of the trial would have been
different. Accordingly, we overrule appellant’s second proposition of law.
                                            B
                             Identification Testimony
       {¶ 39} In his third proposition of law, appellant challenges the trial court’s
failure to suppress the name array testimony, alleging that the procedure utilized by
the police was so impermissibly suggestive as to result in an unreliable and
inadmissible identification of appellant.
       {¶ 40} The day following the shootings, Bucyrus Police Captain John
Stanley contacted Warren, who was recovering from surgery in the hospital.
Stanley listed for Warren a series of four names, which included “Kevin Keith” and
“Kevin Thomas,” to assist Warren’s recollection of the name Marichell had used to
identify the shooter. Though Warren thought one of the other names Stanley
mentioned was Smith, neither Warren nor Stanley could recall any other names
mentioned. Stanley explained that he simply made the names up and forgot them.
Nonetheless, Warren told Stanley that he was seventy-five percent sure the name
he heard from Marichell was Kevin Keith. When later shown a photo array of six
suspects, Warren chose appellant’s picture and told police he was ninety-five
percent sure that appellant was the murderer.
       {¶ 41} Only one other court appears to have confronted this precise name-array issue. In United States v. Tovar (1982), 

, the Eighth




                                            12
                                     January Term, 1997




Circuit Court of Appeals held simply that the procedures utilized by the police in
the name array were not “impermissibly suggestive.”                      Assuming the same
principles that apply to photo-array and line-up cases apply to a name array, we
likewise find that appellant has failed to demonstrate that the procedure utilized by
the police was improper or unduly suggestive. Nothing in the record demonstrates
that the names selected were suggestive, as would be a series of ethnic names. We
decline appellant’s invitation to apply a per se rule that the procedure used was
unduly suggestive because of Stanley’s failure to recall the entire list of names
included in the array. Unless appellant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of due
process of law, nor should it lead to a presumption of suggestiveness. See,
generally, Arizona v. Youngblood (1988), 

, 

,

. No showing of bad faith has been made here.1
         {¶ 42} Even if we were to assume, for argument’s sake, that the procedure
utilized by the police in the name-array identification was impermissibly
suggestive, we would, nonetheless, find the identification testimony admissible.
An unneccessarily suggestive identification process does not violate due process if
the identification possesses sufficient indicia of reliability. Manson v. Brathwaite
(1977), 

, 

, 

. In determining
“whether under the ‘totality of the circumstances’ the identification was reliable
even though the confrontation procedure was suggestive … the factors to be
considered in evaluating the likelihood of misidentification include the opportunity
of the witness to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the length of time


1. Although appellant challenges Nancy Smather’s identification, he presents no argument as to
why the identification process in her case was unduly suggestive, nor does any reason appear in the
record.




                                                13
                             SUPREME COURT OF OHIO




between the crime and the confrontation.” Neil v. Biggers (1972), 

, 

, 

.
       {¶ 43} Considering the totality of the circumstances, we find sufficient
indicia of reliability in Warren’s identification of appellant. Shortly before the
murders, Marichell told Warren appellant’s full name.             Warren identified
appellant’s name the day after the murders. Warren additionally declared that he
was seventy-five percent sure of the name Keith. Accordingly, we overrule the
third proposition of law.
                                          C
                               Affidavit of Indigency
       {¶ 44} By his fourth proposition of law, appellant alleges that the trial court
violated his right to counsel when the court failed to sufficiently inquire into an
affidavit of indigency appellant filed two months before the trial began. In the
affidavit, appellant swore that he was “without the necessary funds with which to
pay for the Attorney in this case and … without any possessions, real or personal
of sufficient value to offer as security for such costs.” At the time appellant filed
the affidavit, he had already retained James Banks as his attorney.
       {¶ 45} Appellant relies upon State v. Deal (1969), 

, 

, 

, in support of his argument. In that case, the court
imposed an affirmative duty upon the trial court to inquire, on the record, into a
defendant’s complaints regarding the adequacy of his appointed counsel. In Deal,
as in the other cases cited by appellant, the defendant expressed his dissatisfaction
with his counsel to the trial court. See, also, State v. Prater (1990), 

, 

 (defendant specifically informed the court that he did not want
assigned counsel to represent him); State v. VanMeter (July 11, 1985), Franklin
App. No. 84AP-987, unreported, 

 (prior to trial, defendant
requested a continuance so that he might obtain new counsel).




                                         14
                                 January Term, 1997




        {¶ 46} Although appellant argues that the affidavit itself was an indication
of his dissatisfaction with his retained counsel, we find no support in the record for
such a finding. There is no complaint in the affidavit that his counsel, Banks, was
providing inadequate representation. The affidavit alleges only that appellant was
without the necessary funds to pay for costs of representation and defense. Such
an affidavit would be appropriate for other reasons, such as to secure the services
of experts at the state’s expense.
        {¶ 47} There is no other evidence in the record that should have alerted the
trial court to appellant’s dissatisfaction with his retained counsel. Upon appellant’s
motion to correct the record after trial, the trial court issued the following statement:
        “Why wasn’t there any action taken on Kevin Keith’s affidavit of indigency
which he filed with the Court? … The Court recalls specifically asking the
Defendant if he agreed to proceed with his attorney and he offered no objection.
As the Court explained to one of the appellate attorneys, it does not recall whether
or not this was on the record during any of the proceedings, however, this Court
specifically remembers the look on Defendant’s face when the Court asked him the
question.”
        {¶ 48} We find nothing in the record to support appellant’s contention that
the trial court should have further inquired into appellant’s satisfaction with his
retained counsel. Therefore, we overrule appellant’s fourth proposition of law.
                                           D
                               Publication of Videotape
        {¶ 49} In this fifth proposition of law, appellant challenges the playing of a
videotaped television interview of Gracie Keith, appellant’s aunt and alibi witness.
During the trial, Keith testified that appellant was with her at her home at the
approximate time of the murders. On cross-examination, the prosecutor asked
Keith if she remembered telling a television interviewer, “I can’t say that [defendant
was with me during the killings] [’]cause I don't know what time it was ….”




                                           15
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Keith denied that she made such a statement.          On redirect, defense counsel
attempted to clarify her statement, suggesting that she had denied knowing when
the murder was, not when appellant was with her.
       {¶ 50} During the state’s rebuttal case, Bucyrus Police Captain Blankenship
testified that he possessed a videotape, subpoenaed by the grand jury, that contained
taped footage of the crime scene and interviews broadcast by Channel 68 in
Mansfield. Appellant objected to the playing of the videotape under Evid.R.
801(D)(1), pointing out that Keith was not under oath when she gave the interview,
and claiming that the alleged inconsistent statement should have been raised when
she testified. The trial court overruled the objection and permitted the state to show
the videotape to the jury. Appellant now complains that the trial court erroneously
played the videotape when it lacked the proper foundation and authentication and
was not admitted into evidence. Because appellant did not object to the videotape
on these grounds at trial, he waived these issues absent plain error.
       {¶ 51} The state presented the videotaped statements for purposes of
impeaching Keith. Pursuant to Evid.R. 613(B), when extrinsic evidence of a prior
inconsistent statement is offered into evidence, a foundation must be established
through direct or cross-examination in which (1) the witness is presented with the
former statement, (2) the witness is asked whether he made the statement, (3) the
witness is given an opportunity to admit, deny, or explain the statement, and (4) the
opposing party is given an opportunity to interrogate the witness on the inconsistent
statement. Mack, 

, 

, quoting State v.
Theuring (1988), 

, 

. We find that the
state properly established the foundation under Evid.R. 613(B) for the use of
Keith’s prior inconsistent statement.
       {¶ 52} Appellant also complains that the trial court permitted the state to
play the videotape when the tape was not authenticated. The requirement of
authentication is satisfied by evidence sufficient to support a finding that the matter




                                          16
                                January Term, 1997




in question is what its proponent claims.         Evid.R. 901(A).     Here, Captain
Blankenship testified only that the videotape he possessed was the same videotape
containing crime scene footage and interviews of Channel 68 subpoenaed by the
grand jury. Nonetheless, we find that the playing of the videotape did not alter the
outcome of the trial and does not constitute plain error. Gracie Keith was not
appellant’s sole alibi witness.     Judith Rogers placed appellant’s leaving his
apartment at 8:45 p.m., the approximate time the assailant arrived at the Chatman
apartment. Thus, it is not clear that absent the playing of the videotape, the outcome
of the trial would have been different.
       {¶ 53} Appellant also contends that the trial court’s instructions regarding
the jury’s consideration of the videotape’s contents “hopelessly confused” the jury.
When the trial court denied the jury’s request to play the videotape during its
deliberations, the jury asked, “We would like to know why we can’t see the taped
interview of Grace Keith? If it was not introduced as evidence why was it shown
to us?” The trial court explained that “although what was said by Gracie Keith was
evidence, you have to take it as if it came from the witness stand. The actual
physical tape was not introduced into evidence. Therefore, I cannot play the tape
for you. You are going to have to judge that tape by the testimony as if she said it
right from the witness stand to your best collective recollection of what she said.”
Upon objection from defense counsel, the trial court further instructed the jury that
“you really can’t consider the conversation on that tape as if it comes from the
witness stand because she was not under oath when she gave it. However, the
words are still before you. What that was, was just the television interview.”
       {¶ 54} Viewing the instructions as a whole, we find that they are neither
confusing nor prejudicial. The court’s erroneous instruction was immediately
remedied by a curative instruction, to which defense counsel did not object. We
find that appellant’s fifth proposition of law lacks merit.
                                          E




                                          17
                             SUPREME COURT OF OHIO




                                 Juror Misconduct
       {¶ 55} By his sixth proposition of law, appellant charges that several
instances of juror misconduct deprived him of a fair trial. To support his argument,
appellant relies on State v. King (1983), 

, 10 OBR 214, 

, paragraph one of the syllabus, for the proposition that any improper
juror conduct automatically raises the presumption of prejudice. On numerous
occasions, however, we have reaffirmed a long-standing rule that a court will not
reverse a judgment based upon juror misconduct unless prejudice to the
complaining party is shown. See, e.g., State v. Grant (1993), 

, 

; State v. Hipkins (1982), 

, 

, 125, 

. In cases of improper outside juror communication,
the defense must establish that the communication biased the juror. State v. Phillips
(1995), 

, 

. Furthermore, trial courts
are granted broad discretion in dealing with the outside contact and determining
whether to declare a mistrial or replace an affected juror. 

, 

.
       {¶ 56} The first instance of alleged misconduct involved reports that a juror,
Julie Dyer, discussed the case with several persons where she worked. During an
in-chambers hearing, Dyer, while under oath, denied discussing the case with
anyone, except to tell her boss that she was serving as a juror. Thereafter, the court
questioned Tammy Lacey, the person who had contacted the court about the
possible misconduct. Lacey testified that while at Dyer’s workplace, another
employee, Pat Emmer, told her that Dyer was talking to everyone about the case,
although Lacey did not have firsthand knowledge of what Dyer had said.
       {¶ 57} After the court suspended the trial proceedings until the allegations
had been resolved, Dyer informed the trial judge that she remembered telling her
boss that she was asked a question about bowling during voir dire. She also told
her boss some of the reasons why people were not selected for the jury. Dyer also




                                         18
                                January Term, 1997




recalled that she had told Emmer, her co-worker, that she thought that the trial was
interesting and found defense counsel “more compelling or more interesting as a
lawyer.”
       {¶ 58} Shortly thereafter, Emmer testified that Dyer told her that the case
was interesting, that the jury had visited the crime scene, and that the television
reporter was not permitted to show the jurors’ faces. Emmer also informed the
court that one other person claimed that Dyer had talked about the case but Emmer
discounted the possibility by adding, “[H]e could have been lying [’]cause that’s
the type of person he is.”
       {¶ 59} After excusing Emmer, the trial court discussed the situation with
counsel. Defense counsel stated with respect to juror Dyer, “I am impressed. She
is saying for one thing it is interesting and she didn’t say anything factual and the
fact that Channel 4 couldn’t take pictures. Everybody knows that anyway. … I
don't have any problem with her.” Over the prosecutor’s objection, the court
permitted Dyer to remain on the jury.
       {¶ 60} The second allegation of juror misconduct concerns an incident that
occurred during sentencing deliberations.      The court conducted a hearing in
chambers with counsel when it learned that a juror had been in a police cruiser with
a deputy sheriff. The deputy explained that he had taken the juror to the bank to
make a house payment before the bank closed. Neither the deputy nor the juror
discussed the case. The juror remained on the panel without objection.
       {¶ 61} The final claims of juror misconduct involve unusual telephone calls
received by two jurors. Juror Ogle reported to the court that someone left an
“unsettling” message on his answering machine. Although unintelligible to the
court reporter, Ogle thought the message said, “I know who you are and I know
where you live.” Ogle, however, believed the call to be a prank and expressed no
concern for his safety. He informed the court that he wanted to continue serving




                                         19
                             SUPREME COURT OF OHIO




on the jury and felt that the message would not affect his judgment. Juror Ogle
remained on the panel without objection from either party.
       {¶ 62} The other unusual telephone call involved a juror who received three
collect phone calls from a person who identified himself as “Jeff from the
Correctional Institute.” During an in-chambers hearing before counsel, the juror
assured the court that she was “absolutely not” afraid to continue to serve as a juror
and that the calls would not influence her deliberations. Neither party objected
when the court retained the juror on the panel.
       {¶ 63} In each of the in-chambers hearings conducted by the trial court,
counsel were freely permitted to inquire of the witnesses and jurors. Nonetheless,
appellant failed to object to any of the jurors’ remaining seated on the case and,
thus, waived all but plain error. The trial court promptly addressed each allegation
of outside communications, and determined the facts and possible impact on the
juror. We find no abuse of the trial court’s discretion and no plain error in allowing
the jurors to remain on the panel.
       {¶ 64} We reject appellant’s argument that the trial court exacerbated the
prejudicial effect of the alleged juror misconduct when the trial judge indicated his
concern for his own safety to the juror who received the collect calls and informed
the jurors he had placed “phone traps” on their telephones, with which calls to their
homes could be traced. We find these comments to be of a reassuring nature, and
note that even after the trial judge made the comment, the juror assured the court
that she was able to continue on the jury unaffected. Thus, we decline to assume
prejudice, as appellant would have us do.
       {¶ 65} This sixth proposition of law is accordingly overruled.
                                          II
                              SENTENCING PHASE
       {¶ 66} We turn now to appellant’s first proposition of law, where he sets
forth several issues regarding the mitigation phase of his trial. Appellant initially




                                         20
                                 January Term, 1997




takes issue with the trial court’s conduct toward the alternate jurors after the jury
returned a verdict in the guilt phase. The trial court instructed the alternate jurors
to conduct their own deliberations to see if they agreed with the jury’s guilt phase
verdict. If they agreed with the jury’s verdict, the trial court informed the alternates,
they would remain for the sentencing phase of the trial. Thereafter, the alternate
jurors informed the court that they agreed with the jury “100 percent.”
        {¶ 67} By failing to raise an objection at trial, appellant waived any error in
the instructions to the alternate jurors, absent plain error. Slagle, 

, 

. Appellant cannot demonstrate plain error, however,
because none of the alternate jurors ever sat on the jury.
        {¶ 68} In this same proposition of law, appellant contests his waiver of the
presentation of mitigation evidence. At the outset of the mitigation phase, the trial
court and appellant’s trial counsel engaged in the following colloquy:
        “COURT: Counsel for defendant may proceed with his opening statement.
        “MR. BANKS: Your Honor, my client is not desirous of making any
statement with regard to this issue.
        “THE COURT: Allright. The state may proceed.
        “MR. WISEMAN: We have nothing to present, sir.”
        {¶ 69} Thereafter, the court proceeded with closing arguments. After the
state made a brief statement asking the jury to recommend the maximum sentence,
defense counsel waived closing argument. With the approval of counsel, the court
submitted the presentence investigation report and psychological evaluation that
were performed upon appellant’s request to the jury to consider during its
deliberations.
        {¶ 70} Appellant does not argue that the right to present mitigation evidence
is one that cannot be waived. A defendant may decide what evidence, if any, to
present at a mitigation hearing and may decide to present no evidence, even against
the advice of counsel. State v. Tyler (1990), 

, 

.




                                           21
                             SUPREME COURT OF OHIO




Rather, appellant contends that the trial court committed a grave error when it failed
to inquire of the appellant whether he knowingly, intelligently, and voluntarily
waived the presentation of mitigating evidence. Appellant likens the right to
present mitigation evidence to other rights that must be personally waived by a
defendant, such as the right to a jury trial and the right to testify at trial, citing
Godinez v. Moran (1993), 

, 

, 

; Wainwright v. Sykes (1977), 

, 

, 

 (Burger, C.J., concurring). The trial court, appellant
continues, neglected to personally address him to determine whether he knowingly,
intelligently, and voluntarily waived his right to present mitigation evidence.
        {¶ 71} At the outset, we find fault with appellant’s arguments that his
counsel presented no mitigation evidence. To the contrary, the jury had the
psychological report and presentence investigation report to consider during its
sentencing deliberations. Thus, appellant’s argument that defense counsel waived
appellant’s right to present all mitigation evidence is unavailing. Nonetheless, we
consider appellant’s argument as it relates to waiving the right to present additional
mitigating evidence.
        {¶ 72} At least two states have adopted guidelines or procedures for trial
courts when a defendant personally waives his right to present mitigation evidence.
Koon v. Dugger (Fla.1993), 

; Wallace v. Oklahoma
(Okla.Crim.App. 1995), 

. Neither case, however, addressed the
precise argument appellant presents, i.e., whether the right to present mitigation
evidence was a fundamental right. Thus, we find them unpersuasive in considering
the issue.
        {¶ 73} In Brecheen v. Reynolds (1994), 

, the Eighth
Circuit discussed appellant’s precise argument.          The court explained that
fundamental rights, including the right to appeal, the right to a jury trial, and the
right to plead guilty, are waivable only by the defendant because of the personal




                                         22
                                   January Term, 1997




nature and importance of the right. Nonfundamental rights, those rights that
primarily involve trial strategy and tactics, are waivable by defense counsel on the
defendant’s behalf.
        {¶ 74} The Eighth Circuit concluded that the “question as to the propriety
of introducing additional mitigating evidence in this case is not a fundamental right
… but rather, fits squarely into the category of rights that are nonfundamental
and that are not reviewed for compliance with the heightened waiver standard.” 

The court elaborated in a footnote that “[i]n spite of the obvious importance of this
issue, it is still, at its core, an evidentiary question that is inherently tactical in nature
and therefore vested in the discretion of the trial counsel.” 

.
        {¶ 75} We, too, find that the ultimate decision to introduce additional
mitigating evidence is a not a fundamental right which needs to be personally
waived by the defendant. In State v. Johnson (1986), 

, 24 OBR
282, 286, 

, we made clear that “the mere failure to present
mitigating evidence at the penalty phase of a capital trial does not itself constitute
proof of ineffective assistance of counsel or deprivation of the accused’s right to a
fair trial. It is conceivable that the omission of such evidence in an appropriate case
could be in response to the demands of the accused or the result of a tactical,
informed decision by counsel, completely consonant with his duties to represent
the accused effectively.” Thus, we implicitly recognized that the presentation of
mitigating evidence is a matter of trial strategy. It follows that this right fits
squarely into the category of rights that are nonfundamental and which may be
waived by defendant’s counsel. Accordingly, we find no duty for the trial court to
secure from the defendant an on-the-record waiver of the right to present mitigating
evidence.
        {¶ 76} We additionally observe that the record reveals nothing to suggest
that defense counsel proceeded against appellant’s wishes.                To the contrary,
appellant’s proclamation of innocence in open court prior to sentencing supports




                                             23
                              SUPREME COURT OF OHIO




our opinion that appellant waived additional mitigation because he maintained his
innocence.
       {¶ 77} Appellant next challenges the admission of the psychological
evaluation to the jury because the report contained “material misstatements of law.”
After examining appellant, Dr. William Schonberg prepared a psychological
evaluation report. In part, the report stated:
       “Under the provisions of the Ohio Revised Code, Section 2929.04; Criteria
for Imposing Death or Imprisonment for a Capital Offense, the death penalty will
be precluded if the Court found any of three mitigating circumstances. Mr. Keith
states that he is innocent of these charges. It would not appear that the offender
acted under duress, nor would it appear that the victim of the offense induced or
facilitated it. The offense would not appear to have been a product of the offender’s
mental deficiency or psychosis, the client having no psychiatric history. Therefore,
based on interview impressions, it is this examiner’s opinion that there are no
mitigating factors in this case.”
       {¶ 78} Appellant did not object to sending the report to the jury. In fact,
defense counsel agreed with the trial court that the report “has to go” to the jury.
Accordingly, he has waived all but plain error.
       {¶ 79} Appellant argues that the psychological report makes the following
misstatements of law: (1) that the presence of one or more mitigating factors
precludes the death penalty; (2) that the only three mitigating circumstances are
whether the offense was committed under duress, whether the victim induced or
facilitated the offense, and whether the offense was a product of mental deficiency
or psychosis; (3) that the trial court determines the presence of mitigating
circumstances; and (4) that the report uses the wrong definition to determine the
existence of the mitigating factor of R.C. 2929.04(B)(3), mental disease or defect.
       {¶ 80} We agree that the psychological report does not accurately reflect
the law. However, we find that any error in presenting the report to the jury does




                                          24
                                  January Term, 1997




not rise to the level of plain error, i.e., that but for the misstatements of law, the jury
clearly would have sentenced him to life. Long, 

, 

,

, paragraph two of the syllabus. In so finding, we consider that the
first misstatement cited by appellant actually favored him in that it erroneously
asserted that the mere presence of any one of the mitigating factors set forth would
preclude the death penalty. As to the other misstatements, the trial court cured any
error when it instructed the jury as to its role, the proper standards and mitigating
factors to consider, and the method of weighing the aggravating circumstances and
mitigating factors.
        {¶ 81} It is true, as appellant contends, that the jury correctly challenged the
accuracy of some factual statements in the presentence investigation submitted to
them.    Nonetheless, the jury’s attention to factual errors in the presentence
investigation does not demonstrate that but for the misstatements of law in the
psychological report, the jury would clearly have come to a different conclusion.
Nothing in the record suggests that the jury was confused or otherwise affected by
the misstatements in the psychological report.
        {¶ 82} We also reject appellant’s challenge to the trial court’s penalty phase
instructions. Appellant argues that the trial court erred in failing to instruct the jury
that it was obligated to separately consider each aggravating circumstance and
weigh it separately against any mitigating factors. The proper standard, however,
is that the jury is obligated to separately consider each count and separately weigh
the aggravating circumstance or circumstances applicable to each count against any
mitigating factors. State v. Cooey (1989), 

, 

,
paragraph three of the syllabus.
        {¶ 83} In this case, although only one aggravating circumstance was
applicable, the trial judge’s instructions to the jury referred to aggravating
circumstances. We find no prejudicial error in the instruction, however, because
there is no distinction between the aggravating circumstance which was attached to




                                            25
                              SUPREME COURT OF OHIO




each of the three counts of aggravated murder.            Moreover, the aggravating
circumstance itself was multiple murder.
        {¶ 84} We also consider appellant’s argument that the trial court
erroneously instructed the jurors:
        “You are to consider all things which are relevant to the nature and
circumstances of the aggravating circumstances in the respect that this offense was
part of a course of conduct involving the purposeful killing of two or more persons,
or to any mitigating factors including but not limited to the nature of the offense
and the history, character, and background of the Defendant, plus all of the
following ….”
        {¶ 85} The parties evidently agree that the trial judge mistakenly used the
term “nature and circumstances of the aggravating circumstances,” when he meant
the “nature and circumstances of the offense.” If that is what the court meant, then
the court committed error in instructing the jury, appellant argues, citing State v.
Wogenstahl (1996), 

, 

. We disagree.
        {¶ 86} Appellant did not object to the instruction and has waived all but
plain error. State v. Underwood (1983), 

, 3 OBR 360, 

. In this case, the trial court did not instruct the jury to weigh the nature and
circumstances against any mitigating factors. See State v. Gumm (1995), 

, 

. To the contrary, the trial court instructed the
jury that the aggravating circumstances must outweigh the mitigating factors in
order to impose a death sentence. The trial court, though inartfully, informed the
jury that it could consider the evidence upon which it based its findings that
aggravating circumstances were proven in determining whether the aggravating
circumstances outweighed the evidence presented in mitigation. We find no plain
error in the trial court’s instructions to the jury. Viewed in the context of the entire
charge rather than in isolation, State v. Thompson (1987), 

,

, we find no plain error under these circumstances.




                                          26
                                January Term, 1997




       {¶ 87} Appellant also claims the trial court erred in failing to instruct the
jury on residual doubt. However, a defendant is not entitled to such an instruction.
State v. Garner (1995), 

, 

.
       {¶ 88} Finally, appellant objects to the trial court’s instruction on all the
mitigating factors when no evidence was presented to support all of the factors.
Again, we have expressed our view that the better practice is for trial courts to
refrain from even referring to mitigating factors not raised by the defendant, but
this is not prejudicial error. State v. DePew (1988), 

,

.
       {¶ 89} Having considered appellant’s arguments, we overrule appellant’s
first proposition of law.
       {¶ 90} In his seventh proposition of law, appellant alleges that the trial court
failed to comply with R.C. 2929.03(F) by not addressing or recognizing the
existence of any mitigating factors set forth in R.C. 2929.04. In his sentencing
opinion, the trial judge stated: “Regarding mitigating factors, there were none.”
The trial court did not then discuss whether the aggravating circumstance
outweighed the mitigating factors as to each count. In State v. Fox (1994), 

, 

, we addressed similar arguments and held that
inadequate explanations of the weighing process do not constitute reversible error
because any such error may be readily cured by this court’s independent review.
We adhere to that view.
       {¶ 91} In his next argument, appellant correctly asserts that the trial court
failed to file a sentencing opinion within fifteen days of its judgment entry as
required by R.C. 2929.03(F).       Nonetheless, appellant has not demonstrated
prejudice. State v. Martin (1985), 

, 19 OBR 330, 339,

.
       {¶ 92} In this same proposition of law, appellant contends that the trial court
was biased against him evidenced by the trial court’s anger toward appellant for his




                                         27
                           SUPREME COURT OF OHIO




comments to the press. Upon our review of the record, we are of the opinion that
the judge’s comments do not show bias.
       {¶ 93} Based upon the foregoing, we overrule appellant’s seventh
proposition of law.




                                         28
                                January Term, 1997




                                         III
                   EFFECTIVE ASSISTANCE OF COUNSEL
       {¶ 94} In his eighth and final proposition of law, appellant raises twenty-four claims or instances of ineffective assistance of counsel.        Reversal of a
conviction on the grounds of ineffective assistance of counsel requires that the
defendant show, first, that counsel’s performance was deficient and, second, that
the deficient performance prejudiced the defense so as to deprive defendant of a
fair trial. Strickland, 

, 

, 

. To
demonstrate that counsel is deficient, appellant must show counsel’s performance
fell below an objective standard of reasonable representation. Bradley, 

, 

, paragraph two of the syllabus. To demonstrate
prejudice, appellant must prove that there exists a reasonable probability that were
it not for counsel’s errors, the result of the trial would have been different. 

 at
paragraph three of the syllabus.
       {¶ 95} Appellant argues here, and throughout his brief, that because his trial
counsel was not certified pursuant to C.P.Sup.R. 65, he is not entitled to the
presumption of competence we usually extend to properly licensed attorneys. See
State v. Wilkins (1980), 

, 

, 

.
       {¶ 96} In order to represent an indigent defendant charged with an offense
for which the death penalty may be imposed, C.P.Sup.R. 65 requires an attorney
appointed by the court to be certified as experienced in capital cases.
C.P.Sup.R.65(II)(B). Although appellant’s counsel apparently did not meet the
qualifications set forth in C.P.Sup.R. 65, we decline to impose a rule that creates a
presumption of ineffective assistance of counsel where counsel has been retained
by or for a defendant and is not qualified under C.P.Sup.R. 65. The provisions for
the appointment of counsel set forth in C.P.Sup.R. 65 apply “only in cases where
the defendant is indigent [and] counsel is not privately retained by or for the




                                         29
                              SUPREME COURT OF OHIO




defendant ….” C.P.Sup.R. 65(I)(B). The rule further provides that “[i]f the
defendant is entitled to the appointment of counsel, the court shall appoint two
attorneys certified pursuant to this rule.” C.P.Sup.R. 65(I)(C). In this case,
appellant privately retained his trial counsel, and certification under the rule was
not required for this representation.
        {¶ 97} We turn now to the specific allegations of ineffectiveness. Appellant
first contends that his trial counsel failed to properly investigate his case and/or
failed to request sufficient time to do so. Yet appellant points to nothing in the
record to support his conclusory allegation.
        {¶ 98} Seven claimed errors of trial counsel contained in appellant’s list of
twenty-four errors relate to alleged juror misconduct. Appellant contends his trial
counsel was ineffective for failing (1) to object to and make a record of “disruptive
influences” occurring during the trial that affected the jury, (2) to request removal
of the jurors who had outside communications, (3) to inquire as to why the court
had “traps” placed on the jurors’ telephone lines, and (4) to request the trial judge
to recuse himself after he expressed a concern for his own safety to another juror.
        {¶ 99} We find, however, that none of these instances amounts to
ineffective assistance of counsel. Appellant has shown neither that counsel’s
performance fell below an objective standard of reasonable representation nor that
there exists a reasonable probability that, were it not for counsel’s errors, the result
of the trial would have been different. 

        {¶ 100} Keith also objects to counsel’s failure to object to hearsay when
Captain Stanley testified at a hearing on the motion to compel discovery relating to
the name array he presented to Richard Warren in the hospital. However, this
instance did not occur in the jury’s presence, and appellant otherwise fails to
demonstrate prejudice.
        {¶ 101} We similarly reject the merits of appellant’s allegation that counsel
was ineffective for failing to file a motion to suppress the identification testimony




                                          30
                                January Term, 1997




of Richard Warren and Nancy Smathers. Trial counsel did, in fact, attempt to
suppress the testimony as to Warren’s identification, and we determined above that
the court properly admitted the testimony. We are also convinced that a motion to
suppress Smather’s testimony would have properly been denied.
       {¶ 102} Appellant additionally challenges the zealousness of trial counsel’s
representation when he accepted, without question, allegations that appellant was
intimidating the family of the victims. The record reflects that a security officer in
the courtroom reported to the court that he and another officer observed appellant
winking and blowing kisses in the direction of the victims’ family. We do not find
that trial counsel acted unreasonably, especially in light of the fact that the
allegations were not raised before the jury.
       {¶ 103} Appellant next complains that counsel failed to move to withdraw
from the case when he learned information that placed him in a conflict of interest.
Appellant refers us to a portion of the transcript in which defense counsel related
to the court and prosecutor a meeting he had with an unidentified woman who told
defense counsel that she suspected another person was involved in the murders.
The woman informed defense counsel of this person’s involvement in several other
crimes, including murders. In order to satisfy a Sixth Amendment claim of
ineffective assistance of counsel, appellant must demonstrate that an actual conflict
of interest adversely affected his counsel’s performance. Cuyler v. Sullivan (1980),

, 

, 

; State v.
Manross (1988), 

, 

. Appellant does not
state with any particularity either the conflict of interest or the adverse effect upon
counsel’s performance. We find nothing, from our review of the record, that would
raise an inference of an actual conflict of interest. Thus, we reject appellant’s
argument.
       {¶ 104} Appellant’s next claim of ineffective assistance raises counsel’s
failure to object to two instances of hearsay testimony: one from Captain Stanley




                                          31
                             SUPREME COURT OF OHIO




that a nurse first mentioned the name “Keith” to him, and another from Joyce
Reeves that her daughter, Quanita, referred to appellant as “Bruce” on prior
occasions. A statement is not hearsay “if it is admitted to prove that the declarant
made it, rather than to prove the truth of its contents.” State v. Williams (1988), 

, 

. We find counsel did not fall below a
reasonable standard of representation in not objecting to the testimony.
       {¶ 105} We reject appellant’s allegations that counsel was ineffective for
failing to make a complete record. Appellant neither specifies what parts of the
trial record he believes are incomplete nor demonstrates how he was prejudiced.
Notably, the record was supplemented by appellate counsel under App.R. 9(E).
       {¶ 106} Appellant’s final allegations of ineffective assistance of counsel
concern the sentencing phase of this trial. Appellant challenges trial counsel’s
request for a presentence investigation and postconviction sanity hearing. We find,
however, that appellant has failed to prove that counsel fell below a reasonable
standard of representation in requesting or permitting the reports to be submitted to
the jury or that absent the reports, there exists a reasonable probability that the
outcome of the trial would have been different. Although the psychological report
and the presentence investigation report did contain some errors, these errors were
not prejudicial. The trial court corrected the minor errors in the presentence
investigation report. We have also determined that one error was favorable to
appellant and others were cured by the trial court’s instructions. Additionally, the
psychological report contained some evidence of mitigation, including references
to appellant’s family background, work history, and personal interests that the jury
would not have otherwise had available to it.
       {¶ 107} We also consider trial counsel’s failure to present additional
mitigation evidence. The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of counsel.
Johnson, 

, 24 OBR at 286, 

. In this case,




                                         32
                                January Term, 1997




counsel’s failure to present mitigating evidence was not a demonstrably deficient
trial strategy in light of appellant’s decision to waive such a presentation. Arguably,
it was consistent with appellant’s claim of innocence.
       {¶ 108} Regardless, we find that appellant has failed to prove prejudice. To
do so would require that there was mitigating evidence counsel failed to present
and that there is a reasonable probability that the evidence would have swayed the
jury to impose a life sentence. Establishing that would require proof outside the
record, such as affidavits demonstrating a lack of effort to contact witnesses or the
availability of additional mitigating evidence. Such a claim is not appropriately
considered on a direct appeal. See State v. Scott (1989), 

,

 (claim of failure to present mitigating evidence is properly
considered in a postconviction proceeding because evidence in support of claim
could not be presented on direct appeal).
       {¶ 109} We turn next to counsel’s failure to make any opening or closing
statement in support of sparing appellant’s life. We reject the concept that the
failure to make an opening and closing statement will result in ineffectiveness per
se. In State v. Ballew (1996), 

, 

,
we called defense counsel’s “extremely brief final argument” at the sentencing
hearing “questionable.” Yet we also found that the defendant failed to establish
that counsel’s performance fell below an objective standard of reasonable
representation.
       {¶ 110} In the present case, counsel’s failure to make an opening or closing
statement complied with appellant’s decision not to present mitigating evidence and
comported with his claims of innocence. Assuming that counsel’s performance
was deficient, we find that appellant has failed to prove that there exists a
reasonable probability that the result would have been different had counsel made
a closing argument against the death sentence. We note that the state did not present
any compelling arguments in support of imposing a death sentence. Rather, the




                                          33
                              SUPREME COURT OF OHIO




state waived opening and made a brief closing argument, asking only that the jury
impose the “maximum sentence.”
         {¶ 111} Appellant also asserts counsel was ineffective for failing to object
to the court’s instruction to the jury on all statutory mitigating factors. However,
we have already determined that there was no reversible error. See State v. 

         {¶ 112} Finally, appellant takes issue with counsel’s failure to object when
the court suggested that a room could be set aside after trial for jurors who wanted
to be interviewed by the press. Appellant fails to demonstrate what bearing the
court’s suggestion had on the outcome of his trial.
         {¶ 113} In accordance with the above, we reject appellant’s Proposition of
Law VIII.
                                         IV
                      INDEPENDENT SENTENCE REVIEW
         {¶ 114} Pursuant to R.C. 2929.05, we independently weigh the aggravating
circumstances against the mitigating factors and determine whether appellant’s
sentence is disproportionate to sentences in similar cases.
         {¶ 115} The evidence supports beyond a reasonable doubt that appellant
murdered Marichell, Marchae and Linda Chatman, and attempted to kill Richard
Warren and Quanita and Quinton Reeves as part of a course of conduct involving
the purposeful killing or attempt to kill two or more persons. R.C. 2929.04(A)(5).
         {¶ 116} We find that the nature and circumstances of these offenses do not
offer the slightest mitigating value.     Appellant went to Marichell Chatman’s
apartment and ordered its occupants, Marichell, her daughter, her aunt, her two
young cousins, and her boyfriend, to lie on the floor. When Marichell pleaded with
appellant to spare the children, appellant replied that she should have thought of
that before her brother started “ratting” on people. Ignoring Marichell’s pleas,
appellant fired multiple gunshots, killing three and seriously wounding the others.




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Appellant then fired additional shots at Warren as Warren escaped the murder
scene.
         {¶ 117} Since appellant chose to waive the presentation of additional
mitigating evidence, we review the presentence investigation and psychological
report appellant requested and submitted to the jury. From these, we learn that
appellant, thirty years old at the time of the murders, has five half-siblings whose
fathers are unknown to him, and two half-siblings by his own father. He was raised
by his grandparents until he was twelve years old because of his mother’s youthful
age. After that time, he returned to live with his mother and stepfather. He
described his childhood as happy and normal.
         {¶ 118} Appellant maintained a low-C average in high school, participated
on the football team and completed the twelfth grade. As an adult, appellant
worked several jobs, including maintenance. He has never been fired from a job.
         {¶ 119} Appellant has a child who was seven years old at the time of trial
and for whom he paid twenty-five dollars a week in support. During the two years
prior to his arrest, appellant lived with his girlfriend, who worked at General
Electric. Since his last job ended, appellant had been attempting to open an
“African store” in Mansfield.
         {¶ 120} Appellant described himself as someone who gets along “great”
with others, “like a big teddy bear at times.” He denied abusing alcohol or engaging
in significant substance abuse, although he admitted smoking marijuana from the
age of fifteen. At the time of his arrest, appellant had several counts of aggravated
trafficking charges pending against him. In addition, appellant had a robbery and
two petty theft convictions.
         {¶ 121} We find that the only relevant statutory mitigating factor in this
case is R.C. 2929.04(B)(7). We accord some mitigating weight to appellant’s
family background, work history, and personal character. Nevertheless, we find




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that the aggravating circumstance of each murder count outweighs the mitigating
factors beyond a reasonable doubt.
       {¶ 122} We finally consider whether the penalty imposed in this case is both
appropriate and proportionate when compared with similar cases. In reviewing
other cases of murder as a course of conduct involving the purposeful killing or
attempt to kill where we have upheld the death penalty, we find the death sentence
both appropriate and proportionate in this case. Compare State v. Hawkins (1993),

, 

; State v. Loza (1994), 

, 

; State v. Frazier (1991), 

, 

.
       Accordingly, we affirm appellant’s convictions and sentence.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
                               __________________
                                     APPENDIX
       {¶ 123} “Proposition of Law No. I: The defendant is denied a fair trial, the
effective assistance of counsel, an impartial jury, and is subjected to an
unreasonable risk of cruel and unusual punishment where, subsequent to the jury’s
verdict on guilt, the court 1) failed to address the defendant personally in court and
on the record in order to determine that he was knowingly, intelligently and
voluntarily waiving his right to present mitigating evidence, 2) submitted a
‘psychological evaluation’ to the jury which contained misstatements of facts and
law, 3) failed to advise the jury that each aggravating circumstance must be
weighed against mitigating factors, 4) failed to instruct the jury that residual doubt
is a mitigating factor, 5) instructed the jury on statutory mitigating factors when no
evidence was introduced to establish the existence of these factors, and 6) referred
to the nature and circumstances of the offense as if [they] were an aggravating
circumstance.




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                                January Term, 1997




       {¶ 124} “Proposition of Law No. II: When the trial court gives improper
preliminary instructions, repeatedly uses ‘mere recommendation’ language in voir
dire, and improperly excuses scrupled jurors for cause without inquiry to determine
substantial impairment, the defendant is denied a fair trial and a reliable sentence
in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
       {¶ 125} “Proposition of Law No. III: Where identification of the accused
by a witness lacks reliability and is the result of overly suggestive police
identification tactics, the refusal of the trial court to suppress the witness’
identification testimony violates the right of the accused to Due Process requiring
reversal.
       {¶ 126} “Proposition of Law No. IV: The trial court violated the appellant’s
fundamental rights to counsel and due process when it failed to make sufficient
inquiry on the record of the reasons for the appellant’s filing of an affidavit of
indigency and request for appointed counsel and thereby forced the appellant to
trial without the effective assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the United States Constitution and Section 10, Article
I of the Ohio Constitution.
       {¶ 127} “Proposition of Law No. V: A defendant is substantially prejudiced
when a trial court allows a publication of a videotape to the jury where no
foundation was laid to make the videotape admissible, the tape was not
authenticated, the tape itself was not admitted into evidence but the jury was
nevertheless instructed that they could consider the videotaped conversation during
deliberations.
       {¶ 128} “Proposition of Law No. VI: Where a trial court fails to remedy
juror misconduct and, in fact, exacerbates certain improper influences on the jury
by its own conduct an accused is denied his rights to due process and a fair trial by
an impartial jury as guaranteed by the federal and state constitutions.




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       {¶ 129} “Proposition of Law No. VII: A defendant is denied a fair and
reliable sentence when the trial court and the appellate court failed to comply with
the dictates of R.C. § 2929.03 by not recognizing mitigating evidence, not timely
filing the sentencing opinion, and by punishing a capital defendant for speaking
with the press.
       {¶ 130} “Proposition of Law No. VIII: Defense counsel’s actions and
omissions at Mr. Keith’s capital trial deprived him of the effective assistance of
counsel as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 9, 10 and 16 of the Ohio
Constitution.”




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