¶1dissenting. I must respectfully dissent. I concur with the majority’s treatment of almost all of the alleged errors raised by appellant. For the most part, those propositions of law concern matters which were within the trial court’s discretion, were not raised in the court of appeals, or were otherwise waived by counsel for the appellant.
¶2However, the trial court’s refusal to allow Curtis Mack to testify about the bias of Timothy Willis was an error that most certainly was not waived by counsel, and, in my view, a proper ruling could have led to an entirely different result during the guilt phase of this trial.
¶3The appellant’s trial counsel proffered that Curtis Mack, a corrections officer, would have testified: “[0]n January 23rd, sometime in the evening Tim Willis came in and he said he wanted to talk to [Curtis Mack] about Clarence and Reggie. And he said that he knew that Clarence and Reggie didn’t have *517anything to do with this murder that happened on Martin Luther King’s Day. He said he knew who did it and because — then Mr. Curtis Mack asked him, ‘Well, who did it?’ He said, “Well, your mother is around here, I’ll talk to you later about that.’ They went upstairs later and he indicated to them that Clarence and Reggie would never do anything like this, they didn’t have the heart for something like this. And then at the insistence of Mr. Mack he asked, ‘Well, who did it?’ He said, ‘Don’t you know that I did it?’ ” The majority only lightly touches on this issue, suggesting that this was harmless error.
¶4Any sort of rational review of the record in this case reveals that Willis’s testimony was critical to the state’s case. Willis is the only witness who places appellant at the scene of the crime. Willis is the only witness who testified that appellant was in a position to fire a shot at Sanelli. Willis is the only witness who in any way related that appellant had a motive to commit the crime. Willis is the only witness who described in any sort of detail the automobile that appellant and co-defendant Thomas Sowell were allegedly driving on the day of the crime. In a word, Willis was a key witness for the state whose testimony was critical to the conviction of appellant. If his credibility would have been impugned, the issue of the appellant’s guilt would have been a close call at best.
¶5The trial court refused to allow Curtis Mack to testify as to Willis’s confession, apparently on the theory that no foundation was in place for impeachment of Willis’s testimony. However, a flat confession of the crime at issue clearly goes to bias. See, e.g., State v. Williams (1988), 61 Ohio App.3d 594, 597-598, 573 N.E.2d 704, 705-706, holding that impeachment by extrinsic evidence is permissible to show the witness’s bias and that the exclusion of such testimony is reversible error. Wfiiere bias is at issue, Evid.R. 616, which became effective on July 1, 1991, specifically provides that bias may be shown by extrinsic evidence: “Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence.” See, also, State v. Ferguson (1983), 5 Ohio St.3d 160, 165-166, 5 OBR 380, 385-386, 450 N.E.2d 265, 269-271. Likewise, there is no doubt that a foundation need not be laid in Ohio as a prerequisite for the introduction of extrinsic evidence of a witness’s bias. See State v. Kehn (1977), 50 Ohio St.2d 11, 19, 4 O.O.3d 74, 78, 361 N.E.2d 1330, 1335; State v. Carlson (1986), 31 Ohio App.3d 72, 75, 31 OBR 112, 115, 508 N.E.2d 999, 1002. See, also, 1 Weissenberger, Ohio Evidence (1985) 32-3, Witnesses, Section 607.7. Consequently, the trial court was clearly mistaken when it ruled that Curtis Mack’s testimony as to Willis’s confession could not be admitted.
¶6I would have to agree that the jury may well have decided that Curtis Mack himself was not credible and thus rejected his testimony. But as a reviewing court, it is difficult to say that this would necessarily have been the case, keeping *518in mind the matters noted above. Mack’s credibility was for the jury to decide. When all is said and done, this is why we had reversible error here.
¶7There is no way that we should treat the refusal to allow Curtis Mack’s testimony as harmless error, because the testimony could have demonstrated that the key witness for the state had confessed his own guilt of the murder. If the jury had accepted Curtis Mack’s testimony, obviously we could have had an entirely different verdict. As stated above, Willis was the linchpin of the state’s case, and to a large extent the prosecution’s case would stand or fall on Willis’s credibility.
¶8I will not discuss in length the exclusion of the proffered testimony of Carole Mancino, appellant’s trial co-counsel, concerning Willis’s statements to her, since her proffered testimony was not as strong as Curtis Mack’s proffered testimony. However, I think it obvious that she had a perfect right to testify. Had Mancino testified, she may have been in violation of the Code of Professional Responsibility, which requires an attorney to withdraw from a case after discovering that she may be called to testify. See Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256, 510 N.E.2d 379. See, also, 155 N. High Ltd. v. Cincinnati Ins. Co. (1991), 75 Ohio App.3d 253, 599 N.E.2d 352, interpreting Mentor Lagoons, Inc. However, surely a defendant in a capital case should not be punished for the potential of ethical errors by his trial counsel. See Universal Athletic Sales Co. v. Am. Gym, Recreational & Athletic Equip. Corp. (C.A.3, 1976), 546 F.2d 530, 539.
¶9The reversible errors noted above mandate a new trial; therefore, I would remand this cause to the trial court.
¶10APPENDIX
¶11“Proposition of Law No. 1:
“Ohio public records statute, R.C. 149.43 enables discovery of statements made by potential witnesses at a trial, and denial of this discovery by á court denies a defendant … due process.
¶12“Proposition of Law No. 2:
“Where a particularized need is demonstrated by the defense for the examination of grand jury testimony the failure of the trial court to provide defense counsel with said grand jury testimony deprives a defendant of a fair trial.
¶13“Proposition of Law No. 3:
“Absent an arrest or search warrant independent probable cause to search passengers of a vehicle is necessary even if there exists probable cause to search the driver.
¶14*519“Proposition of Law No. 4:
“A trial court’s dismissal for cause of jurors who expressed] concern over recommending the death penalty but otherwise stated that they could follow the instruction of law provided by the trial court violates a defendants [sic ] right to a fair and impartial jury.
¶15“Proposition of Law No. 5:
“A trial court’s failure to remove for cause jurors with a predisposition for recommending the death penalty in applicable cases violates a defendants [sic ] right to a fair and impartial jury.
¶16“Proposition of Law No. 6:
“Allowing coroner’s testimony by way of someone other than the coroner who performed the autopsy denies a defendant his constitutional right to confront witnesses against him.
¶17“Proposition of Law No. 7:
“By allowing a witness to testify as to the out of court statements of another a trial court commits prejudicial error and violates a defendants [sic] right to confront witnesses against him.
¶18“Proposition of Law No. 8:
“The admission of expert testimony by one who is not properly qualified as an expert pursuant to Evid.R. 702 violates a defendant’s due process.
¶19“Proposition of Law No. 9:
“The introduction of a statement of a defendant prior to his being advised of his constitutional rights to remain silent violates a defendant’s right against self-incrimination.
¶20“Proposition of Law No. 10:
“A defendant is denied his right to a fair trial when a trial court improperly denies him the right to call witnesses for impeachment purposes.
¶21“Proposition of Law No. 11:
“A conviction which is against the manifest weight of the evidence must be overturned on appeal.
¶22“Proposition of Law No. 12:
“A defendant is denied due process of law when his conviction for a felony-murder is not supported by sufficient evidence to prove the corresponding felony offense.
¶23“Proposition of Law No. 13:
“The introduction of gruesome photographs at trial denies a defendant the right to a fair and impartial jury.
¶24*520“Proposition of Law No. 14:
“The trial court must properly charge of [sic ] jury on the law and failure to do so denies a defendant the right to a fair and impartial jury.
¶25“Proposition of Law No. 15:
“At a trial for aggravated murder with specifications, a trial court’s refusal to instruct on the lesser included offenses of murder and voluntary manslaughter amount[s] to reversible error.
¶26“Proposition of Law No. 16:
“Failure of trial counsel to preserve the record for appealable issues necessitate^] reversal if a substantial right of the defendant has been violated.
¶27“Proposition of Law No. 17:
“The right to effective assistance applies to an appeal as of right and the failure of appellate counsel to raise reversible assignments of error on appeal constitutes ineffective assistance of appellate counsel.
¶28“Proposition of Law No. 18:
“Although no one error in and of itself supplies grounds for reversal, the cumulative effect of several errors can be grounds for reversing a criminal conviction.
¶29“Proposition of Law No. 19:
“Repeated prosecutorial misconduct denies a defendant the right to a fair trial and is grounds for reversing a conviction.
¶30“Sub-Proposition of Law No. 19(a):
“Prosecution comments on the Post-Miranda silence of a defendant amounts to prosecutorial misconduct.
¶31“Sub-Proposition of Law No. 19(b):
“The introduction of victim impact evidence in closing arguments amounts to prosecutorial misconduct.
¶32“Sub-Proposition of Law No. 19(c):
“A Prosecutor’s arguing that the nature and circumstances of the offense were aggravating circumstances gives rise to prosecutorial misconduct.
¶33“Proposition of Law No. 19(d):
“Prosecution comments about the defendant’s exercise of his Fifth Amendment right against self-incrimination by defendant’s not testifying at his trial gives rise to prosecutorial misconduct.
¶34“Sub-Proposition of Law No. 19(e):
*521“A prosecutor’s comment during the penalty phase of a capital case about defendant’s lack of remorse gives rise to prosecutorial misconduct.
¶35“Proposition of Law No. 20:
“The introduction of gruesome photographs during the penalty phase of trial denies a defendant the right to a fair and impartial jury.
¶36“Proposition of Law No. 21:
“Due Process requires [that] proper instructions be given to the jury during the penalty phase of a capital case.
¶37“Sub-Proposition of Law No. 21(a):
“A trial court must instruct the jury to consider lesser penalties than the death sentence in charging the jury after the penalty phase of a capital trial.
¶38“Sub-Proposition of Law No. 21(b):
“Jury instructions stating that the jury’s verdict after the penalty phase is only a ‘recommendation’ [deny] a defendant the right [to] a fair trial and an impartial jury.
¶39“Proposition of Law No. 22:
“The right to effective assistance of counsel extends to the penalty phase of a capital trial.
¶40“Proposition of Law No. 23:
“A trial court’s preparation of its sentencing memorandum prior to the sentencing hearing denies a defendant his right to a fair trial.
¶41“Proposition of Law No. 24:
“The cumulative effect of errors that occur during the penalty phase of a trial may deprive a defendant [of] his right to a fair trial.
¶42“Proposition of Law No. 25:
“Failure of the prosecutor to comply with pre-trial discovery is grounds for a new trial if the thing discovered during trial prejudiced the rights of the defendant.
¶43“Proposition of Law No. 26:
“Required proof of prior calculation and design necessary to convict aiders and abettors of a capital offense, and a lower standard for the mental state of principal offenders, denies a defendant due process and equal protection under the law.
¶44“Proposition of Law No. 27:
“A trial court’s improper weighing of aggravating circumstances with mitigating factors requires a reversal of the death penalty imposed thereunder.
¶45*522“Proposition of Law No. 28:
“Imposition of the death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I, of the Ohio Constitution.
¶46“Sub-Proposition of Law [No.] 28(a):
“Ohio’s death penalty scheme deprives defendants] of their lives without due process of law, denies defendants equal protection under the law[,] and imposes punishment that is cruel and unusual.
¶47“Sub-Proposition of Law 28(b):
“R.C. Section[s] 2929.022, 2929.03 and 2929.04 violate federal and state rights to effective assistance of counsel and prohibit a defendnat [sic ] from receiving a fair trial.
¶48“Sub-Proposition of Law 28(c)
“R.C. Sections 2929.022, 2929.03 and 2929.04 are unconstitutionally vague.
¶49“[Sub-]Proposition of Law No. 28(d):
“R.C. Sections 2929.022, 2929.03 and 2929.04 and Crim.R. 11(C)(3) place unconstitutional burdens on the right to a jury trial and to be free from complusory [sic] self-incrimination.
¶50“[Sub-]Proposition of Law No. 28(e):
“R.C. Section 2929.03 fails to provide the recommending jury with an adequate distinction between life and death sentences.
¶51“[Sub-]Proposition of Law No. 28(f):
“Neither the Ohio Legislature nor the Ohio Supreme Court has assured adequate analysis of arbitrariness, excessiveness and disproportionality of death sentences.
¶52“[Sub-]Proposition of Law No. 28(g):
“R.C. Section 2929.05 fails to require inquiry or findings regarding arbitrariness, passion or prejudice, and is thus unconstitutional.
¶53“[Sub-]Proposition of Law No. 28(h):
“The Ohio Death Penalty requires that the jury find the death penalty appropriate punishment if mitigating factors do not outweigh aggravating circumstances thereby precluding any possibility for a mercy option.
¶54“[Sub-]Proposition of Law No. 28(i):
“R.C. Sections 2929.03, 2929.04. and 2929.05 violate the Eight[h] and Fourteenth Amendments to the United States Constitution and Sections 9 and 16 of Article I of the Ohio Constitution by not requiring that the jury decide the appropriateness of the death penalty.
¶55*523“[Sub-]Proposition of Law No. 28(j):
“The Ohio Death Penalty permits the imposition of a death sentence on less than an adequate showing of culpability.
¶56“[Sub-]Proposition of Law No. 28(k):
“Ohio Law fails to require proof beyond a reasonable doubt that aggravating circumstances outweigh mitigating factors at the penalty phase of a trial.
¶57“[Sub-]Proposition of Law No. 28(1):
“Basing a Death Sentence on R.C. 2929.04(A)(7) and 2929(B) denies a defendant Due Process and results in the imposition of Cruel and Unusual Punishment.
¶58“[Sub-]Proposition of Law No. 28(m):
“The burden of proof to prove mitigation factors outweigh aggravation circumstances is unconstitutionally placed on a defendant.”