State v. Treesh

[This decision has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. TREESH, APPELLANT.
                        [Cite as State v. Treesh, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
        (No. 98-2542—Submitted July 6, 2000—Decided January 3, 2001.)
        APPEAL from the Court of Appeals for Lake County, No. 95-L-057.
                                  __________________
        COOK, J.
        {¶ 1} Appellant, Frederick Treesh, and two companions, Keisha Harth and
Benjamin Brooks, departed Cleveland on August 27, 1994, to smoke crack cocaine
in an Ashtabula hotel room. They returned to Cleveland later that day to purchase
additional drugs.      While there, the group picked up another man, Anthony
Washington, who agreed to assist them. After a “couple hours” of driving and
smoking cocaine, the group decided to rob a business to finance the purchase of
more cocaine.
        {¶ 2} Washington eventually directed the group to the Vine Street News, an
adult bookstore in Eastlake, Lake County. Treesh and Brooks were armed with a
nine-millimeter handgun and a sawed-off shotgun. The handgun was loaded to
maximum capacity with “Hydra-Shok” bullets, designed for penetration and
maximum stopping power. Before Treesh and Brooks entered the bookstore, Harth
handed Treesh a roll of duct tape that Treesh planned to use to restrain the robbery
victims.
        {¶ 3} Treesh and Brooks entered the Vine Street News at approximately
11:30 p.m. After glancing at a few magazines, Treesh and Brooks approached the
sales counter where Louis Lauver worked. Treesh pulled out the nine-millimeter
handgun, cocked it, pointed it at Lauver, and ordered him not to move or call out
for help. Treesh then asked Lauver where the security guard was, and Lauver
                             SUPREME COURT OF OHIO




motioned toward the rear of the store. Treesh walked through swinging doors into
the restricted area at the rear of the store and placed the handgun inside his pants.
At this point, Lauver lost sight of Treesh. A short time later, however, Lauver heard
four gunshots coming from the rear of the store.
       {¶ 4} Treesh testified that after passing through the swinging doors into the
rear portion of the store, he saw two customers behind a rack, looking at magazines,
and saw the store security guard, Henry Dupree, sitting in a chair, watching
television. At first, neither Dupree nor the customers appeared to notice Treesh’s
presence. Treesh took the gun out of his pants, poked Dupree in the shoulder with
the gun, and ordered Dupree to stand up. Startled, Dupree complied. Treesh
testified that he originally intended to take Dupree to the front of the store and tape
him up with the clerk, but then noticed handcuffs on Dupree’s pants and decided to
use them. According to Treesh, a struggle ensued when he reached for Dupree’s
handcuffs, and the handgun discharged.
       {¶ 5} While Treesh was in the rear of the store, Brooks ordered Lauver to
empty the cash register. Lauver complied, and Brooks demanded that Lauver open
the safe. As Lauver explained that this was impossible, shots rang out from the
back of the store and Treesh came rapidly back through the swinging doors. Brooks
quickly left with the money from the cash register. Lauver stood by the counter
with his hands in the air as Treesh headed toward the exit. Before reaching the
door, Treesh brought the handgun up, pointed it at Lauver, and fired at least two
shots. Bullets struck Lauver in the jaw and forearm. Treesh later testified that he
aimed these shots not at Lauver, but at the telephone on the wall behind the counter.
       {¶ 6} After Treesh left the store, Lauver temporarily lost consciousness, but
awoke shortly thereafter and dialed 911. Dupree, grievously injured during his
encounter with Treesh at the rear of the store, managed to make his way through
the swinging doors, but collapsed on the floor behind the counter. An autopsy later




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                                 January Term 2001




confirmed that Dupree died as a result of two close-range gunshot wounds in his
chest. Lauver survived and testified at trial.
       {¶ 7} Paul Forner, a witness across the street at a drive-up pay telephone,
saw two men enter the Vine Street News. Minutes later, Forner heard popping
sounds and saw the two men leave. Forner rushed to the store and found Lauver
on the phone with the police. Because Lauver was wounded in the face and had
difficulty speaking, Forner gave the dispatcher a description of the suspects and
their vehicle. Dale Plunkard, a store customer who hid in a viewing booth during
Treesh’s encounter with Dupree, heard three or four shots in steady succession,
“one right after another,” and then emerged from the booth to find Dupree
unconscious. Like Forner, Plunkard was able to identify the suspects’ vehicle,
which he had seen parked nearby before he entered the store.
       {¶ 8} Sergeant Ronald Stih of the Euclid Police Department received a
dispatch concerning the armed robbery. Stih scanned traffic on Interstate 90,
spotted a vehicle matching the dispatcher’s description, and followed it off the
interstate. Officer Frederick Stoldt of the Euclid Police Department also pursued
the suspects’ car. The vehicles attained speeds of over sixty miles an hour in a
residential neighborhood. As Washington drove the suspects’ car, Treesh shot out
its rear window, and both Brooks and Treesh fired shots through the opening and
over the tops of the cruisers to discourage pursuit.        Eventually, however,
Washington lost control of the car and crashed.
       {¶ 9} According to Sergeant Stih, Treesh assumed an “action stance” as he
got out of the car and pointed his handgun at Stih. Treesh fired the weapon at Stih
and Stoldt at least three times. Stih retreated and radioed for help. Treesh fired
additional shots while running away with Harth. Brooks remained in the car and
was immediately apprehended.
       {¶ 10} Officers Michael Janusczak and Harold Pretel of the Cleveland
Police Department arrived at the scene, obtained descriptions of Treesh and Harth,




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and pursued the two suspects on foot. Eventually, the officers approached a garage,
where Pretel saw Treesh aiming a gun at him. Pretel ordered Treesh to drop the
weapon. Treesh threw the gun down, but attempted to flee over a fence. Several
officers confronted Treesh as he jumped over the fence and ordered him to the
ground. Officer Janusczak testified that as he handcuffed Treesh, he immediately
advised Treesh of his Miranda rights.
       {¶ 11} The police transported Treesh first to Euclid, then to the Eastlake
Police Department. On the way to Eastlake, Treesh heard on the police radio that
Dupree had died. Treesh later testified that he was not aware prior to that time that
he had even shot Dupree.
       {¶ 12} Treesh arrived at Eastlake just after 2:00 a.m. on August 28. Treesh
testified that he felt “high” and “paranoid” at that time. Lieutenant Thomas Doyle
of the Eastlake Police Department and Federal Bureau of Investigation Special
Agent Robert Alvord conducted a series of interviews with Treesh and Brooks at
Eastlake. Some of these interviews were captured on the stationhouse videotape
recorder.   Portions of these videotapes, which contained several inculpatory
statements, were later played for the jury. At approximately 2 p.m. on August 28,
Doyle confronted Treesh and Brooks with the store clerk’s statement, and the
suspects refused to discuss their participation in the Vine Street News robbery any
further without an attorney present. Treesh and Brooks continued to discuss their
involvement in other crimes.
       {¶ 13} The Lake County Grand Jury returned a seven-count indictment
against Treesh on August 29. A Lake County jury found Treesh guilty of one count
of aggravated murder with two aggravating circumstances, two counts of attempted
aggravated murder, one count of felonious assault, and one count of aggravated
robbery. Each of these five counts included a firearm specification. The court
entered a nolle prosequi on count six, which had alleged that Treesh failed to




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                                      January Term 2001




comply with the order or signal of a police officer. Treesh pleaded guilty to count
seven, carrying a weapon while under a disability.
         {¶ 14} At the conclusion of the penalty phase, the jury recommended that
the court sentence Treesh to death.                  The trial court adopted the jury’s
recommendation and sentenced Treesh accordingly. Treesh timely appealed the
decision of the trial court to the Lake County Court of Appeals, which affirmed his
convictions and death sentence. In dissent, Judge O’Neill concluded that Treesh
had never received proper Miranda warnings, and that absent the inferences drawn
from Treesh’s improperly obtained statements, the state could not prove the lack of
mitigating factors beyond a reasonable doubt.
         {¶ 15} The cause is now before this court upon an appeal as of right.
         {¶ 16} Appellant presents twenty-one propositions of law for our
consideration. For the reasons set forth below, we affirm the judgment of the court
of appeals and uphold the sentence of death.
                       I. Summarily Rejected Propositions of Law
         {¶ 17} 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. State v. Davis (1996),

, 

. Accordingly, we summarily
overrule those propositions of law that have been previously resolved by this court
and address only those issues that warrant discussion.1 Id.



1. We summarily reject appellant’s sixth proposition of law (number of peremptory challenges) on
the authority of State v. Mills (1992), 

, 

; see, also, State
v. Greer (1988), 

, 

, paragraph two of the syllabus. We reject
appellant’s eighteenth proposition of law (exclusion of testimony regarding firearm specifications’
effect on total sentence) on the authority of State v. White (1999), 

, 

. We overrule appellant’s twentieth proposition of law (constitutionality of
Ohio’s capital sentencing scheme) on the authority of State v. Maurer (1984), 

,
15 OBR 379, 

, paragraph one of the syllabus; see, also, State v. Smith (1997), 

, 

. We reject appellant’s twenty-first proposition of law (specification
to Count One/double jeopardy) on the authority of State v. D’Ambrosio (1993), 

, 

.




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                                II. Guilt-Phase Issues
                             A. Pretrial Publicity/Venue
        {¶ 18} In his first proposition of law, Treesh contends that he was entitled
to a change of venue because “the incident in question [was] highly publicized
locally and nationally.” Treesh relies on Crim.R. 18(B), which provides that
“[u]pon the motion of any party or upon its own motion the court may transfer an
action … when it appears that a fair and impartial trial cannot be held in the court
in which the action is pending.” Although Treesh claims to have filed a motion for
change of venue, we are unable to locate any such motion in the record.
Nevertheless, because the trial docket contains an entry denying a motion for
change of venue, we shall address this proposition on its merits.
        {¶ 19} As this court has noted, Crim.R. 18(B) does not require a change of
venue merely because of extensive pretrial publicity. State v. Landrum (1990), 

, 

. Any decision on a change of
venue rests in the sound discretion of the trial court. 

, 

.
“ ‘[A] careful and searching voir dire provides the best test of whether prejudicial
pretrial publicity has prevented obtaining a fair and impartial jury from the locality.’
” 

, 

, quoting State v. Bayless (1976), 

, 

, 

, vacated on other grounds (1978),

, 

, 

. A defendant claiming that pretrial
publicity has denied him a fair trial must show that one or more jurors were actually
biased. Mayola v. Alabama (C.A.5, 1980), 

. Only in rare cases
may prejudice be presumed. 

; see, also, Nebraska Press Assn. v. Stuart




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                                 January Term 2001




(1976), 

, 

, 

, 694-
695.
       {¶ 20} In 

 we concluded that the trial court did not abuse
its discretion in denying a Crim.R. 18(B) motion even though “virtually all of the
prospective jurors had read or heard media reports about the case.” 

, 

. Landrum cited no specific instances of prejudicial publicity, few
jurors recalled learning specific details of the case from pretrial publicity, and none
indicated that exposure to publicity would impair his or her ability to deliberate in
a fair and impartial manner. 

, 

.
       {¶ 21} Like Landrum, Treesh has failed to show that the publicity in this
case was so pervasive that it impaired the ability of the empaneled jurors to
deliberate fairly and impartially. During voir dire, the trial court individually
questioned prospective jurors about their exposure to pretrial publicity. Although
most empaneled jurors had read or seen articles or television programs about the
case, each had been exposed to comparatively little pretrial publicity. Cf. State v.
Lundgren (1995), 

, 

.
Moreover, each empaneled juror confirmed that he or she had not formed an
opinion about the guilt or innocence of the accused, or could put aside any opinion,
and that he or she could render a fair and impartial verdict based on the law and
evidence. Accordingly, appellant’s first proposition of law lacks merit.




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                           B. Prosecutorial Misconduct
       {¶ 22} In his seventh and fourteenth propositions of law, Treesh claims that
improper statements by the prosecutor during voir dire and closing arguments
denied him a fair trial. To address these propositions, we must first determine
whether the prosecutor’s remarks were improper; if so, we then consider whether
the remarks prejudicially affected substantial rights of the accused. State v. Smith
(1984), 

, 14 OBR 317, 318, 

. We evaluate
the allegedly improper statements in the context of the entire trial. State v. Keenan
(1993), 

, 

. An improper comment does
not affect a substantial right of the accused if it is clear beyond a reasonable doubt
that the jury would have found the defendant guilty even without the improper
comments. Smith, supra, 

, 14 OBR at 319, 

.
                     1. Improper Statements During Voir Dire
       {¶ 23} Treesh alleges that the prosecutor twice committed misconduct
during voir dire. First, during the general voir dire, the prosecutor stated to the
potential jurors, “Another thing that would prevent either the State of Ohio or the
Defendant from having a fair trial, if you are selected on the jury, is to consider
sympathy, sympathy doesn’t have a part in the Courtroom. Does everybody
understand that, sympathy can’t enter your deliberations either?” Defense counsel
objected, and the court sustained the objection.
       {¶ 24} We agree with the court of appeals that this question by the
prosecutor, in spite of defense counsel’s sustained objection, was not improper in
this context. In State v. Jenkins (1984), 

, 15 OBR 311, 

, paragraph three of the syllabus, this court held that an instruction to the jury
during sentencing to exclude bias, sympathy, and prejudice is appropriate to ensure
that the jurors apply the law, not their emotions. The trial court in this case gave
just such an instruction prior to opening arguments.          Because sympathy is
“irrelevant to the duty of the jurors,” State v. Lorraine (1993), 

,




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418, 

, the prosecutor’s request was literally correct.
Accordingly, the prosecutor’s request to the jurors during voir dire to follow the
law and disregard sympathy cannot be the basis for a claim of prosecutorial
misconduct.
        {¶ 25} Treesh next contends that the prosecutor improperly asked the
jurors, “[I]f you are convinced beyond a reasonable doubt, according to the law that
the judge gives you, the facts of this case, the Defendant is guilty, will you give me
your word if that happens, that is proven, you will all return a verdict of guilty?”
Defense counsel objected, and the trial court sustained the objection. The court of
appeals determined that the prosecutor’s request to the jury to make this promise
was improper, but concluded that Treesh suffered no prejudice. In his brief to this
court, Treesh contends that the prosecutor’s request “constituted constitutional
misconduct creating an impartial [sic] jury,” but fails to articulate any basis for that
contention. Assuming, without deciding, that this statement by the prosecutor was
improper, Treesh has failed to demonstrate how the question affected a substantial
right. Accordingly, we overrule appellant’s seventh proposition of law.
                2. Improper Statements During Closing Argument
        {¶ 26} In his fourteenth proposition of law, Treesh argues that several
improper comments by the prosecutor during the state’s summation denied him a
fair trial. Treesh asks this court to review the prosecutor’s statements under the
plain-error standard set forth in Crim.R. 52(B), but defense counsel preserved an
objection to each of the comments addressed in Treesh’s merit brief.
        {¶ 27} We have previously held that the prosecution is entitled to a certain
degree of latitude in summation. State v. Grant (1993), 

,

; State v. Liberatore (1982), 

, 

, 493, 

. The prosecutor may draw reasonable inferences
from the evidence presented at trial, and may comment on those inferences during
closing argument. State v. Smith (1997), 

, 

,




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689. We view the state’s closing argument in its entirety to determine whether the
allegedly improper remarks were prejudicial. State v. Moritz (1980), 

, 

, 

.
       {¶ 28} First, Treesh challenges the prosecutor’s statement to the jury that
Treesh wanted them to believe that he unintentionally shot at the police officers
who pursued him. Specifically, the prosecutor said, “It’s a story that he concocted
…. He wants each one of you to believe that he accidentally killed Henry Dupree,
that he mistakenly shot Louis Lauver in the head, that he unintentionally shot at
police officers at E. 174th and Grovewood—.” (Emphasis added.) We agree with
the court of appeals that the last clause of these remarks was improper. Treesh
himself admitted firing his weapon “at the police, over the tops of the cruisers,”
and the prosecutor could not deliberately misstate the evidence during summation
in order to convince the jury that Treesh “concocted” stories or that his testimony
generally lacked credibility. See State v. Waddy (1992), 

,

. Even so, the trial court sustained defense counsel’s objection,
and Treesh has not demonstrated how this comment prejudiced him.
       {¶ 29} Second, the prosecutor told the jury that Treesh knew that there was
an armed security guard in the store. The court of appeals agreed with appellant
and the trial court that this statement was improper, for it found “no evidence that
appellant knew of the presence of a security guard before he entered the Vine Street
News. In fact, the only testimony relating to this point is that Lauver informed
appellant of the existence of the guard.” We disagree. At trial, Lauver testified on
direct examination that Treesh immediately demanded to know the whereabouts of
the “armed security guard.” Lauver reiterated this testimony on cross-examination,
insisting that Treesh asked specifically about the presence of an armed guard. If
the jury believed this portion of Lauver’s testimony, it could reasonably infer that
Treesh knew about the presence of an armed security guard before he entered the
store. Accordingly, the prosecutor’s assertion constituted a permissible comment




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                                January Term 2001




based on a reasonable inference from trial evidence. See State v. Grant, 

, 

. Assuming, arguendo, that this statement was
improper, the trial court sustained defense counsel’s objection.
       {¶ 30} Third, Treesh objects to the prosecutor’s assertion that “ … we
can’t tell you exactly what happened back there. There is only two people who
knew, and one of them is dead right now.” Like the court of appeals, we see no
impropriety in this statement. Testimony at trial revealed that there were no
eyewitnesses to the confrontation between Treesh and Dupree in the rear of the
store, and Dupree died immediately thereafter. Though witness Plunkard was in a
nearby viewing booth during Treesh’s encounter with Dupree and heard gunshots,
the booth’s door remained closed during the confrontation. Indeed, the prosecutor’s
comment arguably helped the defense by underscoring a potential weakness in the
state’s aggravated murder case. Regardless, the trial court sustained defense
counsel’s objection, and Treesh has failed to demonstrate how this statement
prejudiced him.
       {¶ 31} Fourth, Treesh contends that the prosecutor “attempted to make a lay
witness into an expert on gun residue” in order to dispute the defense’s theory that
Treesh’s gun accidentally discharged during a struggle with Dupree. Treesh refers
to the prosecutor’s summary of the testimony of Sharon Rosenberg, a forensic
scientist: “Sharon Rosenberg testified how the whole front of [Treesh’s] T-shirt had
no evidence of any type of gun powder residue, fouling, reddish nitrates, yet this
gun supposedly is between the two of them the whole time, going off six times,
you’ve got the [one] falling on the other, surely he’d have some fouling or some
kind of gunshot residue on his shirt. There is none—.” Like the court of appeals,
we do not find this statement improper.         The prosecutor neither misstated
Rosenberg’s testimony nor exaggerated her credentials. Instead, the prosecutor
merely suggested a reasonable inference that the jury could draw from Rosenberg’s
testimony and other trial evidence. “Prosecutors are entitled to latitude as to what




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the evidence has shown and what inferences can reasonably be drawn from the
evidence.” Smith, supra, 

, 684 N.E.2d at 689. Regardless, the
trial court sustained defense counsel’s objection to this statement and Treesh again
has failed to demonstrate how this statement affected a substantial right.
        {¶ 32} Fifth, Treesh claims that the prosecutor improperly commented upon
the truth of appellant’s testimony by stating, “I suggest to you that the Defendant
told the truth twice. He told the truth when he said he went up and I plugged—
excuse me—not plugged.” We agree with the court of appeals that the prosecutor’s
statement was improper, since Treesh testified only that he “poked” Dupree. But
even though the prosecutor mistakenly used the word “plugged” instead of
“poked,” the prosecutor corrected himself, the trial court sustained defense
counsel’s objection, the court provided a curative instruction, and Treesh has failed
to demonstrate that he suffered prejudice as a result of the prosecutor’s unfinished
thought.
        {¶ 33} Sixth, Treesh contends that the prosecutor committed prejudicial
misconduct by suggesting to the jury, “If you are not satisfied with the way the
investigation went, or do you think it could have been done better, give us a call
after the trial is over, drop us a letter—.” The trial court sustained defense counsel’s
objection. Like the court of appeals, we deem this statement improper and not
based upon the evidence. Even so, we agree with the court below that it did not
impair appellant’s right to a fair trial.
        {¶ 34} We have reviewed the closing argument in its entirety to determine
whether prejudicial error occurred. State v. Frazier (1995), 

,

; 

, 

, 

. We conclude that the few improper statements made by the
prosecutor during closing arguments did not permeate the state’s argument so as to
deny Treesh a fair trial. See State v. Landrum, supra, 

,

; State v. Bey (1999), 

, 

                                  January Term 2001




484, 494.     The trial court sustained each of defense counsel’s objections.
Accordingly, we overrule appellant’s fourteenth proposition of law.
                     C. Failure to Excuse Juror Volke for Cause
        {¶ 35} In his eighth proposition of law, Treesh contends that the inclusion
of juror Lynn Volke denied him his constitutional right to a fair and impartial jury
due to Volke’s “unbending position” in support of the death penalty. For the
following reasons, we disagree. R.C. 2945.25(C) provides that a prospective juror
in a capital punishment case may be challenged for cause where “he unequivocally
states that under no circumstances will he follow the instructions of a trial judge
and consider fairly the imposition of a sentence of death in a particular case. A
prospective juror’s conscientious or religious opposition to the death penalty in and
of itself is not grounds for a challenge for cause. All parties shall be given wide
latitude in voir dire questioning in this regard.”
        {¶ 36} We have held that “ ‘[a] juror who will automatically vote for the
death penalty in every case will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the instructions require him to do. *
… [A] capital defendant may challenge for cause any prospective juror who
maintains such views. If even one such juror is empaneled and the death sentence
is imposed, the State is disentitled to execute the sentence.’ ” (Emphasis added.)
State v. Williams (1997), 

, 

, quoting Morgan
v. Illinois (1992), 

, 

, 

.    This court has also noted, however, that even if a juror shows a
predisposition in favor of imposing the death penalty, the trial court does not abuse
its discretion in overruling a challenge for cause if the juror later states that she will
follow the law and the court’s instructions. State v. Mack (1995), 

, 

.
        {¶ 37} Juror Volke did initially reveal a predisposition in favor of the death
penalty. When the court questioned Volke regarding her opinion of the death




                                           13
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penalty, Volke said, “I believe in it.” When the assistant prosecutor asked Volke if
the state’s decision to seek the death penalty offended her in any way, Volke
replied, “No, not at all.” Defense counsel then asked Volke why she believed in
the death penalty, and Volke responded, “I think if someone takes another person’s
life they should give their life up.” When defense counsel continued, “And would
that be—do you believe that would be in every case or in some cases?” Volke
replied, “No, in every case.” (Emphasis added.)
       {¶ 38} If the voir dire of juror Volke had simply ended here, we assume,
without deciding, that her inclusion in the jury panel would have violated R.C.
2945.25(C) and this court’s decision in 

, 

. Our Williams decision, after all, precludes the state from executing an
offender when one of the empaneled jurors would “automatically vote for the death
penalty in every case.” (Emphasis added.) 

, 

. But as voir
dire continued, Volke stated that she had been confused by earlier questions and
insisted that she would follow the law and the court’s instructions. After being
asked several searching follow-up questions by the court, the assistant prosecutor,
and defense counsel, juror Volke specifically indicated on more than one occasion
that she could consider mitigating circumstances and impose a lesser sentence
under appropriate circumstances. Juror Volke’s inclusion in the jury, therefore, did
not violate Williams and was consistent with this court’s decision in State v. 

 Accordingly, we overrule appellant’s eighth proposition of law.




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                 D. Admissibility of Statements Following Arrest
        {¶ 39} Before trial, Treesh filed a motion to suppress all statements he had
made while in the custody of the Eastlake Police Department. The motion also
included a challenge to the department’s “show-up” identification. The trial court
held a hearing on the motion to suppress, at which Treesh’s attorney withdrew his
challenge to the show-up identification. After the suppression hearing, the trial
court denied the motion to suppress. Treesh now contends that the evidence at the
suppression hearing established “without doubt” that he never received proper
Miranda warnings prior to his custodial interrogation and that the interrogation
persisted despite his request for counsel. We disagree on both counts.
                        1. Adequacy of Miranda Warnings
        {¶ 40} The United States Supreme Court has recently reaffirmed its
decision in Miranda v. Arizona (1966), 

, 

, 

, concluding that Miranda “announced a constitutional rule,” and that “Miranda
has become embedded in routine police practice to the point where the warnings
have become part of our national culture.” Dickerson v. United States (2000), 

, ___, 

, 

. Accordingly, the
admissibility of any statement given during custodial interrogation of a suspect
depends on whether the police provided the suspect with four warnings: (1) that
the suspect has the right to remain silent, (2) that anything he says can be used
against him in a court of law, (3) that he has the right to the presence of an attorney,
and (4) that if he cannot afford an attorney, one will be appointed for him prior to
any questioning if he so desires. 

 citing 

, 

, 

.
        {¶ 41} It is well established that a defendant who is subjected to custodial
interrogation must be advised of his or her Miranda rights and make a knowing and
intelligent waiver of those rights before statements obtained during the
interrogation will be admissible. It is also well established, however, that a suspect




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who receives adequate Miranda warnings prior to a custodial interrogation need
not be warned again before each subsequent interrogation. Wyrick v. Fields (1982),

, 

, 

; State v. Barnes
(1986), 

, 25 OBR 266, 270, 

; see, also,
State v. Brewer (1990), 

, 

. Police
are not required to readminister the Miranda warnings when a relatively short
period of time has elapsed since the initial warnings. State v. Mack, 

, 

. Courts look to the totality of the circumstances
when deciding whether initial warnings remain effective for subsequent
interrogations. State v. Roberts (1987), 

, 

.
       {¶ 42} In 

 the defendant sought to suppress inculpatory
statements made twenty-four hours after being advised of his Miranda rights. We
concluded that “[a]lthough re-reading appellant’s rights to him … would have
been an extra precaution, it is not one mandated by the Ohio or United States
Constitutions.” 

, 25 OBR at 270, 

. In

 the suspect received Miranda warnings from one police department
early in the evening and made inculpatory statements to officers of a different police
department the following day without being readvised of his Miranda rights. We
noted that while a “great deal of time” had elapsed since the original Miranda
warnings, the subsequent interrogation was “part of a series of discussions” that
appellant had with police, during which the appellant had indicated his awareness
of his rights. 

, 

. Accordingly, based on
the totality of the circumstances, no new warnings were required. 

       {¶ 43} In this case, Treesh was arrested just after midnight on the night of
the robbery. The arresting officer, then a five-year veteran of the Cleveland Police
Department, testified that he advised Treesh of his Miranda rights as Treesh was
being handcuffed. When asked to specify exactly what he said, the officer recited




                                         16
                                January Term 2001




the four warnings required by Miranda. The officer testified that he asked Treesh
if he understood those rights. When Treesh did not respond, the officer began to
repeat the warnings until Treesh “turned and said, ‘Yeah, yeah, I know.’ ” On
cross-examination, Treesh’s attorney questioned whether the officer had, in fact,
recited the appropriate warnings, and the officer responded, “Sir, I make it a point
to mirandize everybody I arrest.” For his part, Treesh testified at the suppression
hearing that no one administered Miranda rights at the scene of his arrest.
       {¶ 44} Treesh arrived at the Eastlake Police Department less than three
hours later and was immediately taken to a booking room. Lieutenant Thomas
Doyle testified that he was in the booking room when Treesh entered, and that he
immediately advised Treesh of his Miranda rights.          The booking room was
equipped with a video recorder. According to the transcript of the voice-enhanced
booking-room videotape, however, Doyle’s rewarning was incomplete. Doyle
asked Treesh, “Do you understand your Miranda rights? I’m going to ask you some
questions for the next hour or so, two hours or three hours. You have the right to
answer the questions that I ask. Stop me any time. [Inaudible] Do you understand
that? Okay.” According to Doyle, Treesh did not appear under the influence of
drugs or alcohol, and indicated a willingness to talk.
       {¶ 45} Treesh agreed to talk to Doyle and was questioned, with
interruptions, for the next several hours. At 7:40 that morning, an FBI agent came
to Eastlake to question Treesh. He advised Treesh of his rights, and asked him if
he wanted to waive those rights. Treesh read the waiver form and signed it, and
later signed another waiver form in which Doyle was listed as the warning officer.
On at least two occasions during this series of interviews, Treesh verbally indicated
an awareness of his rights. When Doyle woke Treesh at 6:57 a.m., he asked Treesh
to recite his rights, and Treesh said, “I have the right to remain silent. Anything I
say can and will be used against me in a court of law, blasé, blasé, blasé.” [Sic.]




                                         17
                              SUPREME COURT OF OHIO




Later, Doyle attempted to warn him again of his rights, and Treesh said, “You told
me this before. … I already know all my rights.”
        {¶ 46} The dissenting judge on the appellate panel concluded, and we agree,
that the warnings Doyle first conveyed to Treesh upon his arrival at Eastlake were
“a far cry from the information required to be conveyed to an accused. Appellant’s
‘rights’ did not include an obligation, as stated to him at the Eastlake Police Station,
to answer the officer’s questions.” O’Neill, J., dissenting, at 2. Doyle misstated
Treesh’s right to silence and neglected to inform Treesh that any statement could
be used against him in court. And Doyle failed to specifically mention that Treesh
had the right to have an attorney present during interrogation.
        {¶ 47} Even so, we disagree with the dissenting judge’s conclusion that
Doyle’s inadequate readvisement of rights at Eastlake compels reversal. On the
authority of Roberts, Barnes, and 

 we agree instead with the majority
of the court of appeals that “the first partial re-warning given by Doyle at
approximately 2:28 a.m. was sufficient in light of [the arresting officer’s] earlier
warning” that occurred just two hours before Treesh’s arrival at Eastlake. Accord
Mack, supra, 73 Ohio St.3d at 512-514, 653 N.E.2d at 338; State v. Groves
(Mo.1983), 

; Evans v. McCotter (C.A.5, 1986), 

, 1237-
1238. Though the testimony at the suppression hearing conflicted as to whether the
arresting officer actually recited the Miranda warnings, the trial court implicitly
found the arresting officer’s testimony about the arrest more credible than Treesh’s.
Weight of evidence and credibility of witnesses are primarily for the trier of fact—
a principle applicable to suppression hearings as well as trials. State v. Fanning
(1982), 

, 1 OBR 57, 58, 

. We will not
substitute our judgment for that of the trial court on this issue. The full arrest
warning, viewed in conjunction with the partial rewarnings at the interrogations,
indicates that Treesh was sufficiently apprised of his Miranda rights.
                             2. Voluntariness of Waiver




                                          18
                                 January Term 2001




       {¶ 48} Treesh contends that regardless of the adequacy of the Miranda
warnings, his waiver of those rights was not voluntary. “While voluntary waiver
and voluntary confession are separate issues, the same test is used to determine
both, i.e., whether the action was voluntary under the totality of the circumstances.”
State v. Clark (1988), 

, 

. “In Colorado
v. Connelly (1986), 

 [

, 

], the court held
that ‘police overreaching’ is a prerequisite to a finding of involuntariness. Evidence
of use by the interrogators of an inherently coercive tactic (e.g., physical abuse,
threats, deprivation of food, medical treatment, or sleep) will trigger the totality of
the circumstances analysis.” 

 Accordingly, we need not assess the totality of
the circumstances unless we find that the tactics used by the detectives were
coercive. 

       {¶ 49} In 

 the appellant alleged that his mental condition
negated his capacity to act voluntarily. This court determined, however, that
assessment of the totality of the circumstances was unnecessary. 

 Officers
allowed the appellant to use the restroom, provided coffee and cigarettes, and made
no threats or promises. Though assessment of the totality of the circumstances was
unnecessary, this court examined the totality of the circumstances anyway and
concluded that appellant voluntarily gave his waiver and confession. 

 Though
the defense contended that brain damage from a suicide attempt impaired
appellant’s ability to make choices, the appellant acknowledged several times that
he understood his rights and signed a written waiver. 

       {¶ 50} Here, Treesh contends that his “tiredness,” and “cocaine high”
impaired his capacity to make informed decisions during the interrogation and that
the officers never once asked him if he wanted to stop and rest. But like the court
of appeals, we find no coercive police conduct that would trigger the totality-ofthe-circumstances test. Testimony at the suppression hearing reveals that Treesh
was permitted to sleep during breaks in the interrogation. The transcript of the




                                          19
                             SUPREME COURT OF OHIO




booking-room videotape confirms that Treesh spoke coherently and was aware of
his surroundings. Treesh was offered coffee and other refreshments on multiple
occasions, as well as lotion soap and a disinfectant for a small wound. Like the
appellant in 

 Treesh read and signed a written waiver and indicated on
several occasions that he understood his rights.        Assuming, arguendo, that
assessment of the totality of the circumstances is necessary in this case, we cannot
say that appellant’s waiver was improperly obtained.
                   3. Minnick/Edwards—Request for Counsel
       {¶ 51} Treesh also argues that questioning continued despite requests for
counsel. It is axiomatic that “an accused who requests an attorney, ‘having
expressed his desire to deal with the police only through counsel, is not subject to
further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or
conversations with the police.’ ” Minnick v. Mississippi (1990), 

,

, 

, quoting Edwards v. Arizona (1981), 

, 

, 

; see, also, State v.
Dunlap (1995), 

, 

; State v. Knuckles
(1992), 

, 

, paragraph one of the syllabus. In
Knuckles, this court noted that the threshold inquiry is “ ‘whether the accused
actually invoked his right to counsel.’ ” Id. at 496, 605 N.E.2d at 55, quoting Smith
v. Illinois (1984), 

, 

, 

, 493-
494.
       {¶ 52} Here, Treesh testified that he asked for counsel immediately after his
arrival at Eastlake. According to Doyle, however, Treesh never requested an
attorney until 2 p.m., when Doyle confronted Treesh and Brooks with the store
clerk’s statement. At that point, according to Doyle, Treesh and Brooks conferred,
and “decided that they wanted to have a prosecutor and an attorney present …
and they’d only give statements that was [sic] possible to get out of the death




                                         20
                                January Term 2001




penalty.” Doyle responded that there would be no deals struck in return for a
statement, and that no prosecutor was coming down. Treesh and Brooks then
refused to discuss the Eastlake crime any further, but continued to discuss other
matters.
       {¶ 53} Treesh’s desire for the presence of an attorney appeared to be for the
limited purpose of making a deal with the prosecutor to avoid the death penalty.
Assuming that Treesh’s request was an invocation of counsel for purposes of
Edwards, the interrogating officers treated it as such. The officers did not attempt
to elicit any further statements regarding the Eastlake case from Treesh, and Treesh
willingly spoke about other crimes.
                    E. Interrogation/Destruction of Evidence
       {¶ 54} In his third proposition of law, appellant reasserts two claims that
originally appeared in an unsuccessful pretrial motion to dismiss. Treesh claims
that (1) structural error occurred when he was interviewed in jail by a corrections
officer without counsel present, and (2) the state’s failure to preserve certain
evidence from the scene of the crime denied him a fair trial. For the following
reasons, we disagree.
              1. Conversations with Corrections Officer Bowersock
       {¶ 55} Regarding Treesh’s first contention, defense counsel urged the court
at a pretrial conference to dismiss the case on the basis of structural error. The
defense contended that the Eastlake Police Department arranged for corrections
officer Chris Bowersock (also a part-time Eastlake police officer) to interview
Treesh without counsel present and obtain information that the state would later use
against Treesh, knowing full well that Treesh was already represented by counsel.
At a pretrial conference on the motion, the prosecutor professed ignorance about
any such arrangement and insisted that Treesh initiated all conversations with
Bowersock and discussed only crimes unrelated to the Eastlake robbery.




                                        21
                             SUPREME COURT OF OHIO




       {¶ 56} Though the trial court expressed concerns about the propriety of
Bowersock’s conversations with Treesh, the court ultimately denied appellant’s
motion to dismiss, noting that it had already granted appellant’s motion in limine
to prohibit the state from permitting “any witness to address any questions
concerning other acts other than the Eastlake crime.” We agree with the trial court’s
resolution of this issue. The trial court excluded evidence of crimes committed by
Treesh in other states, the state did not attempt to introduce any testimony by
Bowersock in its case in chief, and the state did not introduce any of Treesh’s
statements to Bowersock. Assuming, arguendo, that Bowersock’s conversations
with Treesh were improper, Treesh suffered no prejudice.
                          2. Failure to Preserve Evidence
       {¶ 57} Turning to Treesh’s evidentiary claims, defense counsel alleged that
the police either destroyed or failed to preserve certain key pieces of evidence from
the scene of the robbery. These included a nylon holster, a ramp, several wall
panels and doors, Dupree’s handcuffs, and Dupree’s handgun. It is axiomatic that
“[s]uppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland
(1963), 

, 

, 

. “In
determining whether the prosecution improperly suppressed evidence favorable to
an accused, such evidence shall be deemed material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome. This standard of materiality
applies regardless of whether the evidence is specifically, generally or not at all
requested by the defense.” State v. Johnston (1988), 

, 

, paragraph five of the syllabus, following United States v. Bagley (1985), 

, 

, 

. “[U]nless a criminal defendant can show




                                         22
                                    January Term 2001




bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” Arizona v. Youngblood (1988),

, 

, 

. In the instant case,
there is no support in the record for Treesh’s allegations that the state suppressed
material evidence or acted in bad faith in failing to preserve potentially useful
evidence.
        {¶ 58} The nylon holster was inadvertently destroyed by Daniel Terriaco,
the manager of the Vine Street News, after the police had finished processing the
scene. By that time, however, an employee of the Lake County Regional Forensic
Laboratory had already photographed the holster and its location on the floor.
According to Terriaco, he was distraught by the large amounts of blood in the store,
found the holster while cleaning, and threw it away without realizing what it was.
Mitchell Wisniewski, a firearms expert employed by the Lake County Regional
Forensic Laboratory, testified that he chose not to collect the holster from the scene
because he would not have been performing comparison tests on it, and because it
was his understanding that Eastlake police would collect the holster after the Lake
County crime lab finished processing the crime scene. Apparently, Eastlake never
retrieved the holster. Even so, we perceive no prejudice to appellant resulting from
the inadvertent destruction of the holster. Photographs taken by David Green of
the Lake County crime lab were disclosed to defense counsel during discovery and
utilized by the defense at trial.
        {¶ 59} Appellant also alleges that he was denied a fair trial because the state
failed to maintain as evidence a floor ramp that connected the rear of the Vine Street
News with the video arcade area. Lieutenant Doyle testified that he had returned
to the Vine Street News after the crime in order to investigate Treesh’s claim that
Dupree had fired a weapon at him. At that time, Doyle recovered a spent nine-millimeter bullet from the ramp and turned it over to the Lake County crime lab.
Later, the store manager destroyed the ramp while cleaning the store. We discern




                                           23
                             SUPREME COURT OF OHIO




no prejudice to Treesh resulting from the store manager’s destruction of the ramp.
Photographs depicting the ramp and indicating the location where the bullet
penetrated the ramp were introduced at trial and adequately preserved the ramp’s
evidentiary value. See Crim.R. 26. The state disclosed still photographs and a
videotape of the entire crime scene to defense counsel prior to trial, as well as the
spent bullets and casings recovered from the scene. Moreover, testimony at trial
revealed that the bullet Doyle recovered from the ramp came from Treesh’s nine-millimeter handgun, not Dupree’s .25 caliber weapon.
       {¶ 60} Treesh also contends that the failure to preserve certain wall panels
and doors where bullets had been found rendered it impossible to reconstruct the
precise trajectory of bullets fired. But the police took photographs and videotapes
indicating the location of the spent bullets and casings in the store, and disclosed
this information to the defense. See Crim.R. 26. Measurements of the entire store,
including the location of the spent bullets and casings, were taken by Officer
Wisniewski at the scene. Based on this information, Treesh’s own investigator
constructed a detailed shadowbox reconstruction of the crime scene prior to trial,
which included angles of fired bullets. At trial, Officer Wisniewski testified at
length regarding the locations of the spent bullets and casings. Accordingly, Treesh
suffered no prejudice from the state’s failure to preserve the wall panels and doors
from the Vine Street News.
       {¶ 61} Finally, Treesh contends that the state “failed to adequately
preserve” Dupree’s handcuffs and .25 caliber handgun. Like the court of appeals,
we disagree. The handcuffs were attached to the belt or belt loops of Dupree’s
security uniform, which was taken to the Cuyahoga County Coroner for testing.
The .25 caliber handgun fell out of the back pocket of Dupree’s pants at the hospital.
Eastlake police turned the gun over to the Lake County Prosecutor. The state
disclosed the existence of both the handcuffs and the .25 caliber handgun to the
defense in a discovery response filed October 11, 1994, and the defense had the




                                         24
                                 January Term 2001




opportunity to conduct its own testing of the items. Accordingly, we overrule
appellant’s third proposition of law.
                       F. Request for Grand Jury Transcripts
       {¶ 62} In his fourth proposition of law, Treesh asserts that the trial court
erred when it denied him access to the record of grand jury proceedings. We
disagree. This court has recognized a limited exception to the general rule in favor
of grand jury secrecy, holding that an accused is not entitled to review the transcript
of grand jury proceedings “unless the ends of justice require it and there is a
showing by the defense that a particularized need for disclosure exists which
outweighs the need for secrecy.” (Emphasis added.) State v. Greer (1981), 

, 

, 

, paragraph two of the syllabus.
“Whether particularized need for disclosure of grand jury testimony is shown is a
question of fact; but, generally, it is shown where from a consideration of all the
surrounding circumstances it is probable that the failure to disclose the testimony
will deprive the defendant of a fair adjudication of the allegations placed in issue
by the witness’ trial testimony.” 

 paragraph three of the syllabus. See, also,
State v. Sellards (1985), 

, 17 OBR 410, 413, 

. This is a matter within the trial court’s discretion. Greer, supra, 

, 

, 

. In 

 the accused
demonstrated a particularized need to inspect relevant portions of grand jury
testimony because inspection was necessary to prove the accused’s claim that the
prosecution intentionally withheld specific material information from the
defense—a claim itself borne out by trial testimony. Sellards, 

,
17 OBR at 413, 

.
       {¶ 63} Attempting to articulate a particularized need here, Treesh asserts
that “all information therein [was] needed to properly and fully prepare his defense.
… The Appellant, in a capital murder matter, should have been permitted copies
of the grand jury transcript to allow him to best fully prepare his defense.” Treesh




                                          25
                              SUPREME COURT OF OHIO




thus implies that the severity of the potential penalty, without more, results in a
particularized need for the grand jury transcripts. We disagree. Though Greer
itself was not a death-penalty case, this court has applied Greer to capital cases,
and rejected assertions of particularized need when appellants failed to meet their
burden to specify that need or demonstrate how nondisclosure deprived them of a
fair trial. See, e.g., State v. Benge (1996), 

, 

; State v. Lawson (1992), 

, 

, 909-
910.
        {¶ 64} In his original motion for a transcript of grand jury proceedings,
Treesh was more specific than in his brief to this court, asserting that he required
the grand jury testimony of Benjamin Brooks. But as the court of appeals noted,
Brooks never testified at trial, and Treesh has failed to establish that he had a
particularized need for the disclosure of the grand jury record. The trial court did
not abuse its discretion when it overruled Treesh’s motion for a transcript of grand
jury proceedings. Accordingly, Treesh’s fourth proposition of law lacks merit.
                       G. Request for Daily Trial Transcripts
        {¶ 65} In his fifth proposition of law, Treesh contends that as a death-penalty defendant, he was “entitled by law” to have daily transcripts of all
proceedings provided to him. Treesh filed a pretrial motion for daily transcripts.
In its response, the state recognized that Treesh would be entitled to a transcript for
purposes of appeal, but urged the court to deny Treesh’s request for daily transcripts
in favor of a “wait and see” approach. The trial court denied Treesh’s motion for
daily transcripts in a journal entry disposing of several other pretrial matters. In his
brief to this court, Treesh asserts that due to his need for thorough and ongoing
investigation and trial preparation, his need for an adequate defense, the seriousness
of the offense, the severity of his potential punishment, and his constitutional right
to confrontation, the trial court improperly overruled his motion for daily
transcripts. We disagree.




                                          26
                                January Term 2001




       {¶ 66} The United States Supreme Court has held that “the State must, as a
matter of equal protection, provide indigent prisoners with the basic tools of an
adequate defense or appeal, when those tools are available for a price to other
prisoners. While the outer limits of that principle are not clear, there can be no
doubt that the State must provide an indigent defendant with a transcript of prior
proceedings when that transcript is needed for an effective defense or appeal.” Britt
v. North Carolina (1971), 

, 

, 

. We explicitly followed Britt in State v. Arrington (1975), 

,

, 

, paragraph one of the syllabus.
       {¶ 67} Though appellant relies on Britt to support his alleged entitlement to
daily transcripts, Britt simply does not require that a capital defendant be provided
with transcripts of each day’s testimony as trial proceeds. United States v. Sliker
(C.A.2, 1984), 

 (holding that even in light of Britt, denial of
defendant’s request for daily transcripts was not an abuse of discretion or denial of
defendant’s constitutional rights). “Common experience informs us that it is
entirely practicable to present an effective defense in a criminal case without daily
copy, however convenient daily copy undoubtedly is.” 

 See, also, United States
v. Rucker (C.A.2, 1978), 

 (finding no constitutional deprivation
due to denial of daily transcripts). The Constitution does not require that indigent
defendants be furnished with every possible legal tool, “no matter how speculative
its value, and no matter how devoid of assistance it may be, merely because a person
of unlimited means might choose to waste his resources.”           United States v.
MacCollom (1976), 

, 

, 

(Blackmun, J., concurring).
       {¶ 68} Assuming, arguendo, that the trial court erred by denying Treesh’s
motion for daily transcripts, Treesh has failed to articulate any specific prejudice
resulting from a lack of access to such transcripts, and we discern none. Accord
Thomason v. State (1997), 

, 

. Treesh




                                         27
                                SUPREME COURT OF OHIO




apparently seeks a per se rule requiring the provision of daily transcripts to all
capital defendants, but we decline to extend Britt beyond the factual circumstances
recognized by the Supreme Court. Cf. Harris v. Stovall (C.A.6, 2000), 

 (rejecting defendant’s contention that Britt entitled him to transcripts from
his accomplice’s trial). Accordingly, we overrule appellant’s fifth proposition of
law.
                   H. Elicitation of Treesh’s Request for an Attorney
        {¶ 69} In his eleventh proposition of law, Treesh contends that the trial
court erred when it failed to grant a motion for mistrial made during the direct
examination of Detective Doyle. Doyle, the investigating officer in charge of
Treesh’s case, interviewed Treesh and Brooks at Eastlake following their arrest. At
the stationhouse, Doyle confronted Treesh and Brooks with the taped statement of
the store clerk.
        {¶ 70} At trial, the prosecutor asked Doyle what happened after Treesh
heard Lauver’s taped statement. Defense counsel immediately objected, fearing
that the prosecutor was trying to elicit Treesh’s request for an attorney. At sidebar,
the prosecutor assured counsel that he was seeking testimony only about Treesh’s
request to make a deal—“nothing to do with counsel.” But following the sidebar,
when the prosecutor again asked Doyle what Treesh said after hearing Lauver’s
statement, Doyle answered, “he wanted a prosecutor to be present and he wanted
an attorney.” Defense counsel immediately objected, and the court sustained the
objection and provided a curative instruction. At sidebar, the prosecutor said “that
was a surprise to me.” The following day, the defense made a motion for mistrial,
which the trial court denied.
        {¶ 71} We agree with appellant that it was improper for the prosecutor to
elicit Doyle’s testimony that Treesh had asked for an attorney. An accused who
asserts his Fifth Amendment right to silence should not have the assertion of that
constitutional right used against him. Doyle v. Ohio (1976), 

, 

                                January Term 2001




2240, 

. Since Doyle, the United States Supreme Court has clarified
that “with respect to post-Miranda warnings ‘silence,’ … silence does not mean
only muteness; it includes the statement of a desire to remain silent, as well as of a
desire to remain silent until an attorney has been consulted.” (Emphasis added.)
Wainwright v. Greenfield (1986), 

, 

, 

. Here, we agree with the court of appeals’ view that “the
inference that a juror could draw from Doyle’s statement, is that appellant asked
for an attorney after being confronted with the audio tape recording because he was
guilty. Consequently, the admission of this statement could bear on whether a juror
could entertain a reasonable doubt as to appellant’s guilt.” (Emphasis added.)
       {¶ 72} The prosecutor’s improper elicitation of testimony regarding
Treesh’s request for an attorney is especially troubling because defense counsel and
the court had specifically warned the prosecutor to avoid the problem even before
it occurred. Even so, we must determine whether Doyle’s statement resulted in
prejudicial error warranting reversal. See Hayton v. Egeler (C.A.6, 1977), 

 (prosecutor’s attempt to impeach petitioner’s alibi testimony by inquiring about
postarrest silence was erroneous, but harmless error beyond a reasonable doubt).
       {¶ 73} The granting or denial of a motion for mistrial rests in the sound
discretion of the trial court and will not be disturbed on appeal absent an abuse of
discretion. Crim.R. 33; State v. Sage (1987), 

, 31 OBR 375,
382, 

. “A mistrial should not be ordered in a criminal case
merely because some error or irregularity has intervened ….” State v. Reynolds
(1988), 

, 

. The granting of a mistrial is
necessary only when a fair trial is no longer possible. State v. Franklin (1991), 

, 

. A single comment by a police officer as to
a suspect’s silence without any suggestion that the jury infer guilt from the silence
constitutes harmless error. See Meeks v. Havener (C.A.6, 1976), 

.




                                         29
                              SUPREME COURT OF OHIO




        {¶ 74} Here, the trial court immediately instructed the jury that “the fact
that the Defendant requested an attorney is his Constitutional right to request one
and cannot be used against him in any way.” We presume that the jury followed
the court’s instructions, including instructions to disregard testimony. State v. Loza
(1994), 

, 

; State v. Zuern (1987), 

, 

. Given the context of the prosecutor’s
question to Doyle and the curative instruction by the court, we conclude that the
trial court did not abuse its discretion in denying appellant’s motion for mistrial.
Accordingly, we overrule appellant’s eleventh proposition of law.
                          I. Improper Cross-Examination
        {¶ 75} In his ninth proposition of law, Treesh argues that the prosecutor
“engaged in improper and highly prejudicial questioning of witnesses and in
making prejudicial comments to the jury.” Treesh, who took the stand in his own
defense, refers specifically to alleged improprieties that occurred during his cross-examination by the state. We find no merit to these contentions.
        {¶ 76} Again, the standard for prosecutorial misconduct is whether the
comments and/or questions were improper, and, if so, whether they prejudiced
appellant’s substantial rights. State v. Lott (1990), 

, 

.      Evid.R. 611(B) provides that cross-examination shall be
permitted on all relevant matters and matters affecting credibility. “The limitation
of … cross-examination lies within the sound discretion of the trial court, viewed
in relation to the particular facts of the case. Such exercise of discretion will not be
disturbed in the absence of a clear showing of an abuse of discretion.” State v. Acre
(1983), 

, 6 OBR 197, 201, 

. Trial judges
may impose reasonable limits on cross-examination based on a variety of concerns,
such as harassment, prejudice, confusion of the issues, the witness’s safety,
repetitive testimony, or marginally relevant interrogation. See Delaware v. Van
Arsdall (1986), 

, 

, 

.




                                          30
                                January Term 2001




        {¶ 77} First, Treesh contends that the prosecutor improperly badgered him
about his inability to recall the exact position that he was in when his gun first
discharged in the rear of the store. Though the trial court sustained defense
counsel’s objection, we agree with the court of appeals that the prosecutor’s query
cannot be the basis for a claim of prosecutorial misconduct, because appellant’s
recollection of the precise sequence of events in the rear of the store was a proper
subject for cross-examination. See State v. Pinkney (1988), 

,

.
        {¶ 78} Second, Treesh contends that the prosecutor improperly “tried to
question the Appellant in front of the jury about the witness Kelli Hobbs, which the
trial court specifically excluded.” Like the court of appeals, however, we find no
attempt by the prosecution to elicit testimony relating to Hobbs. In the portion of
the record cited by Treesh, although the prosecutor did indeed mention Hobbs, this
did not occur in front of the jury, but during a sidebar discussion when the trial
judge specifically warned the prosecutor to avoid eliciting testimony about other
acts.
        {¶ 79} Third, Treesh contends that the prosecutor improperly exceeded the
scope of cross-examination by asking Treesh about events that occurred on the day
before the shooting. The court of appeals disagreed, noting that Ohio does not
follow the federal rule with respect to the scope of cross-examination. In Ohio,
cross-examination is not limited to the subject matter of direct examination.
Compare Evid.R. 611(B) with Fed.R.Evid. 611(b). It is available for all matters
pertinent to the case that the party calling the witness would have been entitled or
required to raise. Smith v. State (1932), 

, 

, paragraph
one of the syllabus. Here, the prosecutor’s few general questions concerning
Treesh’s activities on the day before the robbery merely clarified Treesh’s own
testimony that he had been smoking cocaine in the Cleveland area before the Vine




                                        31
                              SUPREME COURT OF OHIO




Street robbery. We find no merit in appellant’s contention that these questions
denied Treesh a fair trial.
        {¶ 80} Finally, Treesh argues that the prosecutor improperly and repeatedly
questioned him regarding civilians present during Treesh’s flight from police. It is
true that during cross-examination, the prosecutor asked Treesh whether he saw
civilians in the area as he and Harth ran from pursuing police officers. We note
that Treesh failed to object to the prosecutor’s first several questions about civilians.
Regardless, it is unclear from Treesh’s proposition how these questions in any way
prejudiced him.
        {¶ 81} We have reviewed the state’s cross-examination of Treesh in its
entirety. Though the prosecutor occasionally repeated questions and at times
seemed unnecessarily contentious, defense counsel objected and the trial court
sustained the objections where appropriate. Eventually, the trial court specifically
limited the scope of cross-examination and specifically warned the prosecutor not
to “keep trying to put words in [Treesh’s] mouth.” We find that the trial court
properly controlled the cross-examination of Treesh, and it cannot be said that the
prosecutor’s method of cross-examination denied Treesh a fair trial. Accordingly,
we overrule appellant’s ninth proposition of law.
                                  J. Prior Bad Acts
        {¶ 82} The thirteenth proposition of law also concerns the state’s cross-examination of Treesh. Treesh contends that the trial court should have declared a
mistrial after the prosecutor “tried to introduce evidence of prior acts of Appellant.”
Treesh’s proposition is based on the following exchange:
        “[Prosecutor:] And when you asked the Eastlake police if you were charged
with murder one, you knew what it meant?
        “[Appellant:] I thought it was the highest degree.
        “[Prosecutor:] Well, now, you knew about the different levels of murder
one, of murder, didn’t you?




                                           32
                                 January Term 2001




       “[Appellant:] Are you telling me what I know?
       “[Prosecutor:] No, I am asking, didn’t you know?
       “[Appellant:] No, I didn’t.
       “[Prosecutor:]    Well, you testified on direct that you had previous
convictions?
       “[Appellant:] Yes sir, I did.”
       {¶ 83} Defense counsel objected. The trial court sustained the objection,
and ordered the prosecutor to abandon this line of questioning. Shortly thereafter,
the trial court overruled appellant’s motion for mistrial.
       {¶ 84} In his brief, Treesh contends that “[i]t is unequivocally clear that the
prosecutor was attempting to prove, through prior convictions, the character of the
appellant in order to show that he acted in conformity therewith in violation of Rule
404(B) of the Ohio Rules of Evidence.” This rule provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith.” See, also, State v. Woodard (1993),

, 

, citing State v. Wickline (1990), 

, 

.
       {¶ 85} Here, because the trial court immediately sustained defense
counsel’s objection and prohibited the prosecutor from pursuing this line of inquiry,
the trial court did not err in overruling Treesh’s motion for a mistrial. As we noted
above, the granting or denial of a motion for mistrial rests in the sound discretion
of the trial court and will not be disturbed on appeal absent an abuse of discretion.
State v. Garner (1995), 

, 

. On direct
examination, Treesh had already admitted to prior convictions for the felonies of
receiving stolen property, forgery, and burglary. The prosecutor’s question on
cross-examination merely asked Treesh to confirm that prior testimony. Since the
trial court sustained the objection to this question, no further bad acts testimony
was admitted, avoiding any potential violation of Evid.R. 404(B).




                                         33
                             SUPREME COURT OF OHIO




       {¶ 86} Treesh cites our Lytle decision for the proposition that the improper
use of other-acts evidence necessitates reversal when there is a “reasonable
possibility that the testimony contributed to the accused’s conviction.” State v.
Lytle (1976), 

, 

, 

, paragraph three of
the syllabus. Upon consideration of the record as a whole, “we believe it most
unlikely that the ‘other act’ testimony contributed in any noticeable degree” to
Treesh’s convictions. 

 48 Ohio St.2d at 403, 2 O.O.3d at 502, 

. Accordingly, we overrule appellant’s thirteenth proposition of law.
                            K. Gruesome Photographs
       {¶ 87} In his twelfth proposition of law, Treesh contends that the trial court
erred when it admitted, over objection, allegedly gruesome photographs of the
victims in this case. Initially, we note that no photographs of Lauver’s injuries to
his face or arm were admitted into evidence. The state introduced six close-up
photographs of Dupree’s body during its direct examination of Dr. Carlos
Santoscoy, the pathologist who performed Dupree’s autopsy at the Cuyahoga
County Coroner’s Office.
       {¶ 88} Under Evid.R. 403 and 611(A), the admission of photographs is left
to the sound discretion of the trial court. State v. Landrum, 

,

; State v. Maurer (1984), 

, 15 OBR 379, 

, paragraph seven of the syllabus. Close-up photographs of victims’
injuries, even if gruesome, are admissible in capital cases if the probative value of
the photographs outweighs the danger of material prejudice and if the photographs
are not repetitive or cumulative in number. 

       {¶ 89} In State v. Morales (1987), 

, 

, this
court determined that numerous gruesome photographs depicting the scene of a
murder and the body of the victim both before and during the coroner’s examination
were neither repetitive nor cumulative and that the probative value of the
photographs outweighed the danger of unfair prejudice to the defendant. 

,




                                         34
                                January Term 2001




513 N.E.2d at 273-274. In 

 we reached the same conclusion
regarding a close-up photo depicting the murder victim’s slit throat. State v.
Landrum, 

, 

.
       {¶ 90} We have reviewed the six photographs of Dupree’s body that the
state introduced into evidence. The photographs illustrated the coroner’s testimony
and were relevant to significant trial issues such as the cause of Dupree’s death, the
distance of Treesh’s gun from Dupree’s body when it discharged, and the lack of
defensive wounds on Dupree’s body. Dupree’s wounds had been cleaned before
the photographs were taken, and the photographs do not appear gruesome or
repetitive. Even if Exhibits 32(b), (c), and (d)—the three photographs depicting the
cleaned bullet holes in Dupree’s body—could be described as gruesome, the
probative value of these photographs substantially outweighed any danger of unfair
prejudice to Treesh. Accordingly, we overrule Treesh’s twelfth proposition of law.
                           L. Sufficiency of the Evidence
       {¶ 91} In his tenth and sixteenth propositions of law, Treesh argues that the
evidence presented at trial was legally insufficient to support his convictions for
aggravated murder and attempted aggravated murder. The relevant question in
determining the sufficiency of the evidence 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
deleted.) Jackson v. Virginia (1979), 

, 

, 

; State v. Jenks (1991), 

, 

,
paragraph two of the syllabus. We will not disturb the verdict unless we find that
reasonable minds could not reach the conclusion reached by the trier of fact. 

, 

.
                          1. Aggravated Murder of Dupree
       {¶ 92} Treesh insists that the state failed to introduce sufficient evidence to
support his conviction for aggravated murder. Treesh devotes much of his sixteenth




                                         35
                             SUPREME COURT OF OHIO




proposition to his contention that the state failed to show that he murdered Dupree
with “prior calculation and design” as R.C. 2903.01(A) requires. But Treesh was
indicted for and convicted of “purposely caus[ing] the death of Henry Dupree while
committing or attempting to commit, or while fleeing immediately after committing
or attempting to commit Aggravated Robbery or Robbery” in violation of R.C.
2903.01(B), and was convicted on a death-penalty specification under R.C.
2929.04(A)(7) that he was the principal offender, not that he acted with prior
calculation and design. For this reason, the element of prior calculation and design
is not at issue.
        {¶ 93} Under R.C. 2903.01(B), the state was required to prove that Treesh
“purposely caus[ed] the death of another … while committing or attempting to
commit, or while fleeing immediately after committing or attempting to commit, *
… aggravated robbery or robbery ….” A person acts purposely when he or she
specifically intends to cause a certain result. R.C. 2901.22(A). Because the intent
of an accused dwells in his or her mind and can never be proved by the direct
testimony of a third person, it must be gathered from the surrounding facts and
circumstances, and the General Assembly has provided that intent to kill may be
proven by inference. Former R.C. 2903.01(D), 139 Ohio Laws, Part I, 3-4. See,
also, In re Washington (1998), 

, 

.
“[S]uch an intent may be inferred in a felony-murder when the offense and the
manner of its commission would be likely to produce death.” State v. Garner, 

, 

.
        {¶ 94} Like the court of appeals, we find sufficient, credible evidence in the
record to support the jury’s determination that Treesh purposely caused the death
of Henry Dupree. Treesh and Brooks planned the armed robbery in advance and
entered the Vine Street News with fully loaded, particularly lethal weapons—a
sawed-off shotgun and a nine-millimeter handgun containing Hydra-Shok bullets.
Even though the store clerk in the front of the store cooperated with Treesh and his




                                         36
                                January Term 2001




accomplice, Treesh sought out Dupree in a separate area at the rear of the store.
Treesh found Dupree sitting in a chair watching television, unaware of Treesh’s
presence in the rear of the store and unaware that a robbery was even occurring.
Instead of simply turning around and returning to the front of the store to continue
the robbery or flee, Treesh poked Dupree with his gun, ordered him to stand up,
and shot him multiple times at close range.
       {¶ 95} Treesh claims that he merely attempted to disarm Dupree and that
his gun discharged during a fierce hand-to-hand struggle—a contention that Treesh
never mentioned to the police during his lengthy stationhouse interrogation. But
Plunkard, the witness who hid in a viewing booth at the rear of the store, heard no
signs of a struggle prior to the gunshots. Plunkard testified that the shots sounded
in a steady rhythm. The record also contains physical evidence and substantial,
credible expert testimony to discount Treesh’s contention that he shot Dupree
during a struggle. Dupree’s body lacked defensive wounds suggestive of a struggle.
And despite Dupree’s considerable loss of blood, a forensic serologist found no
traces of blood identifiable as Dupree’s on Treesh’s jeans, shirt, or shoes. The lack
of any significant smearing of blood spatters in the area of the alleged struggle also
cast doubt on appellant’s theory. Circumstantial evidence and direct evidence
inherently possess the same probative value. 

, 

, paragraph one of the syllabus. Dupree suffered two close-range shots
in his chest, and we have repeatedly held that multiple close-range gunshots to a
vital area tend to demonstrate a purpose to kill. See State v. Palmer (1997), 

, 

, 702; State v. Otte (1996), 

, 

.
              2. Attempted Aggravated Murders of Lauver and Stih
       {¶ 96} Treesh also argues that the evidence was legally insufficient for the
jury to conclude that Treesh attempted to commit the aggravated murders of Lauver
and Sergeant Stih. R.C. 2923.02(A); 2903.01(B). We disagree. Treesh claims that




                                         37
                              SUPREME COURT OF OHIO




he never intended to shoot Lauver, but aimed instead at the telephone behind
Lauver.    The physical evidence at trial, however, as well as Lauver’s own
testimony, reveals that even though Lauver cooperated with Treesh and his
accomplice, Treesh raised his weapon and fired multiple shots at Lauver’s face
from close range as he left the store. At least one bullet struck Lauver in the face,
and the presence of a spent, fully mushroomed bullet in the floor nearby provided
credible evidence that Lauver was struck a second time by a bullet that passed
through his body. Even if only one bullet struck Lauver, we reject Treesh’s
unsupported contention that “one shot at a person is not indicative of intent to
murder.”
        {¶ 97} The record also contains sufficient evidence to show that during his
attempt to flee, Treesh fired his weapon through the rear window of the car at
Sergeant Stih’s pursuing cruiser, assumed an “action stance” when he got out of the
car, and continued firing at Stih until his gun was empty. Stih testified that he lay
across the front seat of his cruiser and backed away to avoid being hit, and that he
later found a nine-millimeter hole in his cruiser’s light bar. Detective Ernie Iafelice,
a Euclid officer who assisted in the recovery of evidence at the intersection where
Treesh fired on Stih, noticed ricochet marks on Stih’s vehicle.
        {¶ 98} Based on the total number of bullets fired and recovered from the
Vine Street News and the area where police apprehended Treesh, the state’s
evidence suggests that Treesh must have reloaded his weapon at some point while
attempting to flee, indicating that he was “not content to use it merely as a prop” to
ward off pursuit. State v. Dennis (1997), 

, 

. Treesh also admitted telling the arresting officers immediately after his arrest
that he wished he had killed them. Viewed in a light most favorable to the
prosecution, the evidence is sufficient to support Treesh’s convictions for attempted
aggravated murder.
          III. Penalty Phase: Victim’s Family’s Request for Death Penalty




                                          38
                                    January Term 2001




        {¶ 99} In his seventeenth proposition of law, Treesh contends that the trial
court committed prejudicial error when it allowed the jury to hear certain victim-impact testimony during the mitigation phase. Though we agree with appellant that
the trial court should not have heard testimony from Dupree’s daughter
recommending that the trial court impose the death penalty, we do not agree that
this error necessitates reversal.
        {¶ 100} In 1987, the United States Supreme Court held that “the
introduction of a [victim-impact statement] at the sentencing phase of a capital
murder trial violates the Eighth Amendment.” Booth v. Maryland (1987), 

, 

, 

. In Booth, the court concluded
that such information “is irrelevant to a capital sentencing decision, and … its
admission creates a constitutionally unacceptable risk that the jury may impose the
death penalty in an arbitrary and capricious manner.” 

, 107 S.Ct. at
2533, 

. The victim-impact testimony at issue in Booth concerned
descriptions of the victims, the emotional impact of the crimes on the family, and
“the family members’ opinions and characterizations of the crimes and the
defendant.” 

, 107 S.Ct. at 2533, 

. Three years after
Booth, this court held that “[e]xpressions of opinion by a witness as to the
appropriateness of a particular sentence in a capital case violate the defendant’s
constitutional right to have the sentencing decision made by the jury and judge.”
State v. Huertas (1990), 

, 

, syllabus.
        {¶ 101} The following year, the United States Supreme Court overruled its
decision in Booth, holding that “if the State chooses to permit the admission of
victim impact evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.” Payne v. Tennessee (1991), 

,

, 

. The Payne court explicitly cautioned,
however, that “Booth also held that the admission of a victim’s family members’
characterizations and opinions about the crime, the defendant, and the appropriate




                                           39
                              SUPREME COURT OF OHIO




sentence violates the Eighth Amendment. No evidence of the latter sort was
presented at the trial in this case.” (Emphasis added.) 

, 111 S.Ct. at 2611,

. Because Payne did not reexamine the constitutionality
of victims’ recommendations as to the appropriate sentence, we have continued to
adhere to our Huertas syllabus and have prohibited the admission of witnesses’
opinions as to the appropriateness of a particular sentence. See, e.g., State v.
Goodwin (1999), 

, 

; State v.
Fautenberry (1995), 

, 

. Other
victim-impact testimony, such as testimony depicting the circumstances
surrounding the offense and the impact of the murder on the victim’s family, “may
be admissible during both the guilt and the sentencing phases.” (Emphasis sic.) 

, 

.
       {¶ 102} Though our decisions in Goodwin and Fautenberry underscored
the   impropriety     of     victim-impact    testimony     containing    sentencing
recommendations, those decisions also illustrate that the admission of such
testimony does not necessarily result in reversible error. In Goodwin, after the
jury’s sentencing verdict, the trial judge permitted the prosecutor to present victim-impact testimony from the victim’s brother. Through the prosecutor, the brother
said that he agreed with the jury’s verdict and “would ask this Court to follow the
recommendation … [and impose] the death penalty.” 

,

. We acknowledged the impropriety of this testimony but
unanimously upheld the appellant’s death sentence, concluding that “[the victim’s
brother’s] brief opinion, expressed by the prosecutor without emotion, elicited no
objection. No plain error is present. … Presumably, the trial judge remained
uninfluenced, since his sentencing decision never referred to the brother’s opinion.
… Moreover, any error is readily cured by this court’s independent sentence
review.” 

, 

.




                                         40
                                January Term 2001




       {¶ 103} In 

 we arrived at a similar conclusion. The
victim-impact statement reviewed by the three-judge panel indicated that each
victim interviewed wanted the appellant to receive “the maximum sentence”
available under the law. 

, 

. We were
not persuaded that this error necessitated reversal, because “[a] review of the three-judge panel’s decision … fail[ed] to demonstrate that the judges contemplated or
relied upon the victim-impact evidence which was available to them. ‘Absent an
indication that the panel was influenced by or considered the victim impact
evidence in arriving at its sentencing decision,’ the admission of such is not
reversible error.” 

, 

, quoting State v. Post (1987), 

, 

.
       {¶ 104} In the case at bar, the trial court reviewed the victim-impact
statements of Sergeant Stih and Louis Lauver, and then permitted Henry Dupree’s
daughter, Linda Luckason, to be heard. After telling the court how much her family
would miss Dupree, Luckason said: “We strongly support an ‘Eye for an Eye.’ …
* We are asking that the death penalty be given to Mr. Treesh, which is what he
gave to my father, Henry. Judge, we hope you exercise your decision [sic] in this
case to the full extent of the law by ordering the death penalty for Mr. Treesh as his
punishment for this horrendous crime and lack of regard for human life. He felt
nothing during his killing spree, and at this time we feel nothing for him.” Defense
counsel objected and asked the court to disregard Luckason’s statement. The trial
court noted the objection, but referred to statutory authorization for the
consideration of victim-impact statements. We agree with Treesh that defense
counsel properly objected to Luckason’s statement, because it contained an express
recommendation that Treesh receive the death penalty. See Huertas, Goodwin, and

 Nonetheless, we conclude that this error does not necessitate
reversal.




                                         41
                             SUPREME COURT OF OHIO




       {¶ 105} In his proposition, Treesh contends that the objectionable victim-impact testimony was heard by the jury. But Luckason’s improper sentencing
recommendation occurred before the judge, after the jury had made its sentencing
recommendation and had been excused. Moreover, as the court of appeals noted,
we presume that the trial judge considers only relevant, competent evidence in
arriving at his or her judgment. 

, 

. Though Luckason’s emotional plea for the death penalty was heard directly
by the court—in contrast to the prosecutor’s second-hand recital of the brother’s
recommendation in Goodwin—there is no indication here that the trial court relied
on Luckason’s recommendation. See State v. Allard (1996), 

, 

. On the contrary, when ruling on a pretrial motion to
exclude victim-impact testimony, the trial judge prohibited the state from
presenting “evidence concerning the victims as nonstatutory aggravating
circumstances during the penalty phase,” indicating that the court was aware of the
limitations on victim-impact evidence. And the court did not refer to Luckason’s
improper sentencing recommendation either orally at sentencing or in the court’s
written sentencing opinion. For the foregoing reasons, appellant’s seventeenth
proposition of law lacks merit.
                       IV. Ineffective Assistance of Counsel
       {¶ 106} In his fifteenth proposition of law, Treesh argues that he received
ineffective assistance from trial counsel at several times throughout the trial.
Reversal of a conviction on the grounds of ineffective assistance of counsel requires
a showing, 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), 

, 

,

. “To show that a defendant has been prejudiced by counsel’s
deficient performance, the defendant must prove that there exists a reasonable
probability that, were it not for counsel’s errors, the result of the trial would have




                                         42
                                   January Term 2001




been different.” State v. Bradley (1989), 

, 

,
paragraph three of the syllabus.
       {¶ 107} Treesh first contends that his counsel should not have waived his
right to be present at two pretrial conferences because the trial court had previously
granted Treesh’s motion to be present at all proceedings. But when the trial court
granted Treesh’s motion, it specifically stated: “The court will accept the
assurances of defendant’s attorney whether the defendant wishes to be present at
pre-trial conferences. Defendant’s attorney has already stated that it is not the
defendant’s desire to be present at pre-trial conferences and that defendant has
waived his presence.” Accordingly, counsel’s waiver of Treesh’s presence at two
pretrial conferences was consistent both with Treesh’s own wishes and the court’s
journal entry. Even if Treesh now contends that he should have been present at the
pretrials, he fails to demonstrate how his attorney’s waiver of his presence in any
way prejudiced him.
       {¶ 108} Next, Treesh contends that his counsel wrongly chose not to order
a presentence investigation and psychological report under R.C. 2929.03(D)(1).
“The decision to request a pre-sentence report is one of sound trial strategy. Such
trial strategy should not be second-guessed by reviewing courts in a claim of
ineffective assistance of counsel.” (Citations omitted.) State v. Williams (1991),

, 

. Regardless, Treesh again fails to
demonstrate how the failure to order the reports prejudiced him.
       {¶ 109} Third, Treesh argues that his attorney should have called Mark
Angellota—his court-appointed investigator—as well as Angelotta’s wife, Terri, as
defense witnesses. Generally, counsel’s decision whether to call a witness falls
within the rubric of trial strategy and will not be second-guessed by a reviewing
court. 

, 

. Further, Treesh fails to explain how counsel’s
failure to call these two witnesses prejudiced him.




                                          43
                             SUPREME COURT OF OHIO




       {¶ 110} Fourth, Treesh contends that his counsel were ineffective for failing
to challenge two jurors, Cynthia Barth and Barbara Modica, during voir dire.
Treesh argues that counsel should have challenged Barth because she had taken
paralegal classes taught by the prosecutor, Charles Coulson. Treesh claims that
counsel should have challenged juror Modica due to her media exposure about the
case and her alleged predisposition in favor of the death penalty. We find both
contentions meritless. It is unlikely that a challenge for cause, if made, would have
succeeded in either case. Barth testified that her past affiliation with Coulson’s
paralegal course would not impair her ability to render a fair and impartial verdict.
Likewise, though Modica admitted exposure to some newspaper articles about the
case, and admitted that she favored the death penalty “[w]hen it’s warranted,” she
stated that she had not formed an opinion about the case and that she could fairly
and impartially weigh the evidence presented.
       {¶ 111} Treesh’s fifth contention, that counsel were ineffective for
withdrawing the show-up identification portion of Treesh’s motion to suppress, is
also meritless. Identity was never an issue in this case, because appellant admitted
both his participation in the robbery and his presence during the fatal encounter
with Dupree at the rear of the store. Defense counsel’s decision to withdraw the
show-up identification issue was consistent with the defense, and Treesh has failed
to demonstrate how it prejudiced him.
                            V. Proportionality Review
       {¶ 112} In his twentieth proposition of law, Treesh asks this court to revisit
the issue concerning the universe of cases to be considered by an appellate court
when conducting the proportionality review required by R.C. 2929.05(A). Treesh
presents no new arguments relating to this issue, which we overrule on the authority
of State v. Steffen (1987), 

, 31 OBR 273, 

,
paragraph one of the syllabus; see, also, State v. Baston (1999), 

, 

.




                                         44
                                January Term 2001




                        VI. Independent Sentence Review
       {¶ 113} In his nineteenth proposition of law, Treesh argues that the state
failed to establish beyond a reasonable doubt that the aggravating circumstances
outweighed the mitigating factors and that the imposition of the death penalty in
this case was both inappropriate and disproportionate. We resolve these issues
pursuant to our statutorily mandated independent review. R.C. 2929.05(A).
       {¶ 114} We are obligated to independently weigh the aggravating
circumstances against the mitigating factors and to determine whether appellant’s
sentence is disproportionate to sentences in similar cases. 

 We begin by
considering whether the evidence supports a finding of the aggravating
circumstance that the state elected to pursue in this case, specifically, that Treesh
committed the aggravated murder of Dupree while committing, attempting to
commit, or fleeing immediately after committing or attempting to commit the
offense of aggravated robbery, and that Treesh was the principal offender in the
commission of the aggravated murder. R.C. 2929.04(A)(7). We find that the
evidence proves beyond a reasonable doubt the aggravating circumstance charged
against Treesh. The evidence of record demonstrates that Treesh, as the principal
offender, purposely killed Dupree while committing, attempting to commit, or
fleeing the aggravated robbery of the Vine Street News.
       {¶ 115} Against this aggravating circumstance, we weigh the nature and
circumstances of the offense, the history, character, and background of the offender,
and any applicable factors enumerated in R.C. 2929.04(B)(1) through (7). The
nature and circumstances of the offense offer no mitigating value.              After
participating in a cocaine binge, Treesh and his companions planned the armed
robbery to satisfy their desire for additional cocaine. Treesh entered the Vine Street
News with a fully loaded handgun containing Hydra-Shok bullets, sought out a
security guard in the rear of the store who was unaware a robbery was in progress,




                                         45
                              SUPREME COURT OF OHIO




shot the guard twice in the chest at close range, shot the unarmed and cooperative
store clerk in the face as he fled, and fired multiple shots at pursuing police officers.
        {¶ 116} The defense’s mitigation witnesses testified at length about
Treesh’s family history, character, and background. Appellant’s mother, who was
two years old when her own mother died, was sexually abused by her father and
grandfather and lived for a time at a state mental hospital. Mrs. Treesh testified
that appellant always had difficulty in school and that Treesh’s father “didn’t go to
ball games, he didn’t share things with Frederick that Frederick needed.” Treesh’s
parents divorced when he was four, but eventually remarried. Treesh’s older sister
testified that she loved appellant, but that as a young boy, Treesh was a “daredevil”
who would “try anything once.”
        {¶ 117} Treesh’s mother enrolled him in Big Brothers/Big Sisters, but
pulled him from the program after hearing rumors that Treesh’s assigned Big
Brother was a homosexual. By the time Treesh was in junior high school, his
behavior had deteriorated to the point where he vandalized property, engaged in
petty theft, and regularly skipped classes. After fathering a child at the age of
seventeen, Treesh eventually found employment as a heavy equipment operator,
but suffered a concussion due to a workplace accident and became severely
depressed.
        {¶ 118} The defense also presented the testimony of a psychologist, Dr.
Sandra McPherson. McPherson testified that Treesh suffered from a “classic” case
of attention deficit/hyperactivity syndrome (“ADHD”), depression, and cocaine
addiction. According to McPherson, persons with ADHD have difficulty sitting
still, completing their work, or remembering things; they may lack some social
skills and suffer from low self-esteem. McPherson testified that children with
ADHD often receive negative feedback from teachers, and that there is a high
correlation between ADHD and drug use. McPherson testified that Treesh had a
fourth-grade spelling ability, could read at a seventh-grade level, and could do




                                           46
                                   January Term 2001




mathematics at a sixth-grade level. Despite Treesh’s poor achievement in school,
McPherson testified that he tested in the normal range on IQ tests.
        {¶ 119} On cross-examination, McPherson conceded that she could not
form an opinion as to whether the conditions she diagnosed necessarily impaired
Treesh’s capacity to appreciate the criminality of his conduct. Because McPherson
stopped short of showing that Treesh’s ADHD caused him to lack the substantial
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law, we do not consider her testimony to support a finding
of the R.C. 2929.04(B)(3) mitigating circumstance (mental disease or defect). See
State v. Fox (1994), 

, 

. Though we
consider her testimony under the R.C. 2929.04(B)(7) residual category, we assign
it relatively little weight. 

        {¶ 120} Under the R.C. 2929.04(B)(7) residual category, the defense
presented other factors in mitigation. Treesh’s father testified that he would miss
appellant if Treesh was put to death. The mother of appellant’s child testified that
appellant regularly kept in touch with his daughter during the proceedings, and that
she did not want appellant to be executed. Appellant’s twelve-year-old daughter
testified that she had spent but one Christmas with appellant over the course of her
life, and that she did not wish her father to be put to death. Finally, Treesh made
an unsworn statement in which he apologized to the Dupree family and
acknowledged that what he did was wrong.
        {¶ 121} We find the statutory mitigating factors in R.C. 2929.04(B)(1)
(inducement by the victim), (B)(2) (duress, coercion, or provocation), (B)(4) (youth
of the offender), (B)(5) (lack of criminal record), and (B)(6) (accused not the
principal offender) inapplicable to this case. And though the trial court instructed
the jury that residual doubt was a permissible R.C. 2929.04(B)(7) factor, this court
has since ruled that residual doubt is not an acceptable mitigating factor under the
statute because it is irrelevant to the issue of whether the defendant should be




                                          47
                             SUPREME COURT OF OHIO




sentenced to death. State v. McGuire (1997), 

, 

,
syllabus. Because McGuire applies retroactively, see State v. Webb (1994), 

, 

, we need not consider
residual doubt in our independent review. State v. Bey (1999), 

, 

.
       {¶ 122} We assign some weight in mitigation to Treesh’s history, character,
and background, see State v. Spivey (1998), 

, 

, as well as to his cocaine addiction, see State v. Landrum, 

, 

. Treesh’s remorse is also worthy of some weight. 

We accord modest weight to Treesh’s prior employment, see State v. Madrigal
(2000), 

, 

, and the love and support of his
family. See State v. Smith (2000), 

, 

.
Overall, however, we consider the mitigating factors to be of minimal significance
here and conclude that they are substantially outweighed by the aggravating
circumstance.
       {¶ 123} We also conclude that the penalty imposed in this case is neither
excessive nor disproportionate when compared with factually similar capital cases
involving comparable or even more compelling mitigating factors. See, e.g., State
v. Martin (1985), 

, 19 OBR 330, 

 (appellant shot
drug store owner during aggravated robbery; parental problems, difficulty in
school, lack of support from father); State v. Byrd (1987), 

, 

 (young offender stabbed clerk during aggravated robbery of
convenience store; difficult upbringing, learning disability, remorse, drug use);
State v. Jamison (1990), 

, 

 (aggravated robbery
of bar; alcoholic father, low intelligence, chronic underachiever, supportive family,
daily cocaine use); State v. Carter (1995), 

, 

(aggravated robbery of convenience store; young offender, difficult upbringing,




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                               January Term 2001




cocaine addiction). The mitigating factors present in this case do not distinguish
Treesh’s death sentence as excessive or disproportionate.
        {¶ 124} For the foregoing reasons, we affirm Treesh’s convictions and
death sentence.
                                                              Judgment affirmed.
        MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
        RESNICK, J., concurs in judgment only.
                              __________________




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                              SUPREME COURT OF OHIO




                                      APPENDIX
          {¶ 125} Proposition of Law No. 1: A defendant is entitled to a change of
venue, pursuant to Rule 18 of the Ohio Rules of Criminal Procedure and applicable
law, when the incident in question is highly publicized locally and nationally.
          {¶ 126} Proposition of Law No. 2:       A defendant is entitled to the
suppression of statements made by him to law enforcement officers and subsequent
evidence obtained from the defendant when such were collected in violation of his
rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.
          {¶ 127} Proposition of Law No. 3: A trial court must dismiss an indictment
when evidence establishes that critical evidence is missing and/or intentionally
destroyed by or in the possession [sic] the State of Ohio.
          {¶ 128} Proposition of Law No. 4: A defendant in a capital punishment
criminal matter is entitled to require the State of Ohio to produce the record of the
grand jury proceedings.
          {¶ 129} Proposition of Law No. 5: A defendant in a death penalty criminal
case is entitled by law to have daily transcripts of any and all proceedings provided
to him.
          {¶ 130} Proposition of Law No. 6: A defendant in a death penalty criminal
case is entitled to an increase in the number of peremptory juror challenges.
          {¶ 131} Proposition of Law No. 7: A prosecutor’s conduct during voir dire
in violation of a defendant’s rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United State [sic] Constitution and Sections 9, 10 and 16,
Article I of the Ohio Constitution.
          {¶ 132} Proposition of Law No. 8: The inclusion of juror Lynn Volke
denied appellant his rights pursuant to the Sixth and Fourteenth Amendments to the
United States Constitution and Sections 10 and 16, Article I of the Ohio
Constitution, which guarantee an accused a fair trial and an impartial jury.




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                                 January Term 2001




       {¶ 133} Proposition of Law No. 9: A trial court commits prejudicial error
by allowing the state of Ohio to argue in an improper and inflammatory manner
during the guilt phase before the jury, in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution and Sections 9, 10 and
16, Article I of the Ohio Constitution.
       {¶ 134} Proposition of Law No. 10: A trial court commits prejudicial error
by overruling the motions for acquittal made by a defendant, in violation of the
defendant’s rights as guaranteed him by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Sections 9 and 10, Article I of
the Ohio Constitution.
       {¶ 135} Proposition of Law No. 11: A defendant is denied his right to a fair
trial and due process by a trial court’s denial of his motion for mistrial in violation
of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution
and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution.
       {¶ 136} Proposition of Law No. 12: A defendant is denied his Sixth, Eighth
and Fourteenth Amendment rights as guaranteed by the United States Constitution
and Sections 9 and 10, Article I of the Ohio Constitution to a fair trial, due process
and a reliable determination of his guilt and sentence when gruesome, prejudicial
and cumulative photographs were admitted into evidence even though their
prejudicial effect outweighed their probative value.
       {¶ 137} Proposition of Law No. 13: A trial court errs to the prejudice of a
defendant when it denies a motion for mistrial after the prosecution referred to the
defendant’s prior acts.
       {¶ 138} Proposition of Law No. 14: A trial court commits prejudicial error
by allowing a prosecutor to argue in an improper and inflammatory manner during
the first portion of the State of Ohio’s summation in the guilt phase before the jury,
in violation of the defendant’s Fifth, Sixth, Eighth and Fourteenth Amendments to




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                             SUPREME COURT OF OHIO




the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio
Constitution.
       {¶ 139} Proposition of Law No. 15:         Ineffective assistance of counsel
provided to a defendant violate [sic] his rights to a fair and impartial jury trial and
sentence, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and Sections 5, 9, 10 and 16 of the Ohio Constitution.
       {¶ 140} Proposition of Law No. 16: A jury and trial court err to the
prejudice of a defendant when there is insufficient evidence for the trier of fact to
find him guilty of aggravated murder and/or attempted aggravated murder beyond
a reasonable doubt.
       {¶ 141} Proposition of Law No. 17: A trial court commits prejudicial error
by allowing victim impact testimony to be heard by the jury during the mitigation
phase of a death penalty case, over the objection of the defendant, in violation of
the defendant’s rights as guaranteed to him by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Sections 5, 9 and 10, Article I
of the Ohio Constitution.
       {¶ 142} Proposition of Law No. 18: A trial court errs to the prejudice of a
defendant when it fails to allow a defense witness to testify during the mitigation
phase of the trial relating to the gravity of the threat the defendant would pose to
the community if he were allowed to live and to be incarcerated as opposed to being
put to death.
       {¶ 143} Proposition of Law No. 19: The trial court erred to the prejudice
of the Appellant when it rules [sic] that any and all aggravating circumstances
presented concerning the aggravated murder of Mr. Dupree outweighed the
mitigating factors presented during the penalty phase of the trial.
       {¶ 144} Proposition of Law No. 20: A trial court errs in imposing the death
sentence on a defendant. The Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio




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                                January Term 2001




Constitution establish the requirements for a valid death penalty scheme. Ohio’s
statutory provisions governing the imposition of the death penalty, contained in
Ohio Revised Code Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023,
2929.03, 2929.04 and 2929.05, do not meet the prescribed requirements and thus
are unconstitutional, both on their face and as applied to the Appellant.
       {¶ 145} Proposition of Law No. 21: The trial court erred to the prejudice
of the Appellant by failing to declare Ohio Revised Code Section 2929.04(A)(7)
unconstitutional as it applied to Count One, aggravated murder as indicted, pursuant
to Ohio Revised Code Section 2903.01(B) and thereby, dismissing Specification II
of Count One.
                              __________________
       Thomas G. Lobe and John P. Keshock, for appellant.
                              __________________




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