State v. Chinn

[This opinion has been published in Ohio Official Reports at 

85 Ohio St.3d 548

.]




               THE STATE OF OHIO, APPELLEE, v. CHINN, APPELLANT.
                       [Cite as State v. Chinn, 

1999-Ohio-288

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
      (No. 97-2020—Submitted February 23, 1999—Decided June 2, 1999.)
     APPEAL from the Court of Appeals for Montgomery County, No. 16206.
                                  __________________
        {¶ 1} On the evening of January 30, 1989, Davel “Tony” Chinn, appellant,
completed a midterm examination at Cambridge Technical Institute in Dayton.
Later that night, fifteen-year-old Marvin Washington saw appellant near
Courthouse Square in downtown Dayton. Washington, who had known appellant
for approximately one year, knew him only by the name of “Tony.” Washington
and appellant spent part of the night drinking beer and loitering around the
downtown area. At some point, appellant showed Washington a .22 caliber nickel-
plated revolver and suggested that they look for someone to rob. At approximately
11:00 p.m., Washington went into an adult bookstore on South Ludlow Street and
was ejected from the store because of his age.              Thereafter, Washington and
appellant loitered in the area of South Ludlow Street looking for someone to rob.
        {¶ 2} Meanwhile, Gary Welborn and Brian Jones had pulled their cars into
a parking lot at the corner of South Ludlow Street and Court Street and had parked
side-by-side in opposite directions to converse with each other through their
driver’s side windows. Appellant and Washington spotted the two men and decided
to rob them.
        {¶ 3} Washington approached Jones’s vehicle from the rear, and appellant
approached Welborn’s car from the rear. Appellant pulled out a small silver
revolver, pressed it against the side of Welborn’s head, and demanded money.
Welborn saw Washington’s face, but he was unable to see the face of the gunman.
                             SUPREME COURT OF OHIO




Welborn handed his wallet to Washington, and Jones handed his wallet to the
gunman. According to Welborn, “the guy with the gun said we’d better have at
least a hundred dollars between us or he’d kill us both.” After emptying the victims’
wallets of money, the two assailants began discussing which car they wanted to
steal. Following a brief discussion, they decided to steal both cars. Washington
got into the driver’s side of Jones’s car and forced Jones into the passenger’s seat.
Appellant instructed Welborn to remain still. As appellant began walking toward
the back of Welborn’s vehicle, Welborn seized the opportunity to escape. At trial,
Welborn testified, “The guy, he comes around. He starts walking around my car,
telling me not to touch my keys. He still has the gun pointed at me. I watch him
in my rearview mirror and sideview mirror. As soon as he gets behind my car, I
ducked down. I thought he was going to kill me now or later anyway so I ducked
down in my car seat, threw it in drive, and took up off [sic] Ludlow the wrong way,
straight to the police station.” Welborn arrived at the station at approximately 11:30
p.m. and reported the incident to police.
       {¶ 4} After Welborn had escaped, appellant got into the back seat of Jones’s
car and held the revolver to Jones’s neck while Washington drove the car away
from Dayton and toward an area in Jefferson Township. At some point, appellant
instructed Washington to turn the vehicle around and to pull over to the side of the
road. Washington complied with appellant’s instructions. After Washington had
stopped the car, he leaned forward in the driver’s seat so that appellant could exit
the two-door vehicle from the driver’s side. According to Washington, appellant
got out of the car and walked around to the passenger’s side. Appellant then got
Jones out of the car and shot him. Appellant and Washington drove away from the
scene in Jones’s automobile.       While fleeing from the scene, appellant told
Washington that he shot Jones because Jones could have identified them and
because Jones “didn’t have enough money.” Appellant told Washington that he
had shot Jones in the arm.
                                January Term, 1999




       {¶ 5} Stacy Ann Dyer lived at 5500 Germantown Pike in Jefferson
Township. Dyer witnessed the shooting but did not see the gunman’s face. Dyer
testified that on January 30, 1989, at approximately 11:30 p.m., she had just arrived
home and was parked in her driveway facing the street. At that time, Dyer saw a
black two-door Chevrolet Cavalier pull off to the side of the road on Germantown
Pike. Dyer observed a man get out of the driver’s side of the vehicle and walk over
to the passenger’s side. She also saw the silhouette of a person exiting the vehicle
from the passenger’s side. The two people then walked to the back of the car. At
that moment, Dyer heard a gunshot and a scream. The victim ran through Dyer’s
yard and fell to the ground in her neighbor’s yard. Dyer then saw the black car
speed away from the scene. Dyer ran inside her house and informed her father and
her sister what had happened. Dyer’s sister called police, and Dyer and her father
went outside to check on the victim. They found the victim, Brian Jones, on his
knees with his face to the ground. Dyer asked the victim whether he was injured,
but Jones did not respond. When police and paramedics arrived at the scene, Jones
was still breathing but was unconscious. He never regained consciousness and was
pronounced dead on arrival at the hospital.
       {¶ 6} Dr. David M. Smith performed the autopsy. Smith found that Jones
had died as a result of a massive acute hemorrhage due to a gunshot wound to his
arm and chest. Smith found that the projectile had entered through Jones’s left arm,
had proceeded directly into Jones’s chest, and had perforated the main pulmonary
artery. Smith recovered the .22 caliber lead projectile from an area near the base
of Jones’s heart. Carl H. Haemmerle, an expert in firearms, examined the .22
caliber projectile and determined that it had been fired from a revolver. He also
examined the sweatshirt that Jones had been wearing at the time of the shooting.
Evidence revealed that the muzzle of the weapon had been in direct contact with
the garment at the time the shot was fired.




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       {¶ 7} Following the shooting, Washington and appellant drove in Jones’s
car to 5213 Lome Avenue in Dayton. There, Washington introduced appellant to
Christopher “Bay” Ward.
       {¶ 8} Ward testified that, on January 31, 1989, at approximately 12:30 or
1:00 a.m., Washington had pulled up to 5213 Lome Avenue in the black Chevrolet
Cavalier and had introduced Ward to a man named “Tony,” who was seated in the
front passenger’s seat. Ward spoke to Washington for approximately thirty to forty-
five minutes until Washington and the man he was with drove away. Later that
night, Washington returned to Lome Avenue and told Ward that “Tony” had shot
someone in Jefferson Township.
       {¶ 9} On February 5, 1989, police arrested Washington based on
information they had received from Ward. Washington confessed to police and
named Tony as the killer. However, Washington was unable to give police the
suspect’s last name and address. On February 7, Washington helped police prepare
a composite sketch of Tony. Later, after police had nearly exhausted all leads in
their search for Tony, the composite sketch was released to the news media. On
Wednesday, February 22, 1989, a Dayton area newspaper printed the composite
sketch along with an article indicating that the suspect’s name was Tony.
       {¶ 10} Shirley Ann Cox worked as a receptionist in her husband’s law
office. On Thursday, February 23, two men walked into the office. One of the men
identified himself as Tony Chinn and requested to see Cox’s husband. Cox
informed the man that her husband was not available. That night, while Cox was
reading the previous day’s newspaper, she saw the composite sketch of the
suspected killer. She said to her husband, “My God, I don’t believe this.” “This
Tony Chinn that was in [the office] this morning is in the paper.” On Friday,
February 24, Cox called police to inform them that she had seen the suspect and
that his name was Tony Chinn.
                                 January Term, 1999




       {¶ 11} After speaking to Cox, police obtained a photograph of appellant and
placed it in a photo array with the pictures of five other men. On February 24,
police showed the photo array to Washington and to Ward. Washington positively
identified appellant as the killer. Additionally, Ward identified appellant as the
man he had seen in the passenger’s seat of the victim’s car—the man Washington
had referred to as “Tony.” That same day, on February 24, police arrested appellant
in connection with the murder.
       {¶ 12} On February 27, police conducted a lineup. Washington, Ward,
Cox, Dyer, and Welborn all viewed the lineup. Dyer and Welborn could not
identify appellant. Welborn attempted to make a selection based on the voices of
the subjects but chose someone other than appellant. Ward and Cox were able to
positively identify appellant. Washington initially indicated that the killer was not
in the lineup. However, after leaving the room where the lineup was conducted,
Washington summoned Detective David Lantz into an interview room and told him
that number seven in the lineup (appellant) was the killer. Washington explained
to the detective that he had previously indicated that appellant was not in the lineup
out of fear that appellant was able to see him through the screen in the room where
the lineup was conducted.
       {¶ 13} In March 1989, appellant was indicted by the Montgomery County
Grand Jury for the aggravated murder of Jones. Count One of the indictment
charged appellant with purposely causing the death of Jones during the commission
of an aggravated robbery. Count One of the indictment also carried three death
penalty specifications: one alleging that the offense was committed for the purpose
of escaping detection, apprehension, trial, or punishment for another offense (R.C.
2929.04[A][3]), a second alleging that the offense was committed during the course
of aggravated robbery (R.C. 2929.04[A][7]), and a third alleging that the offense
was committed during the course of kidnapping (R.C. 2929.04[A][7]). Appellant
was also indicted on three counts of aggravated robbery (Counts Two, Four, and




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Five), one count of kidnapping (Count Three), and one count of abduction (Count
Six).   Each count of the indictment also carried a firearm specification.
Additionally, Counts Two through Six each carried a specification alleging that
appellant had previously been convicted of robbery.
        {¶ 14} In August 1989, the matter proceeded to trial by jury on all counts
and specifications alleged in the indictment, with the exception of the specifications
premised on appellant’s prior robbery conviction, which were tried to the court.
The defense presented several witnesses in the guilt phase of appellant’s trial.
Through these witnesses the defense attempted to establish that appellant had gone
directly home from school on the evening of January 30, 1989, and that he was at
home, where he lived with his mother and his brother, at the time of the crimes in
question. Following deliberations, the jury returned verdicts of guilt on all of the
matters that were tried to the jury. Appellant presented several witnesses in
mitigation and gave an unsworn statement in which he denied any involvement in
the crimes.    Following the mitigation hearing, the jury returned its verdict
recommending that appellant be sentenced to death for the aggravated murder of
Jones. The trial court accepted the jury’s recommendation and imposed the
sentence of death. The trial court also found appellant guilty of the prior conviction
specifications that were tried to the court without a jury. For the aggravated
robberies of Jones and Welborn (Counts Two, Four, and Five), for the kidnapping
of Jones (Count Three), and for the abduction of Welborn (Count Six), the trial
court sentenced appellant in accordance with law. The trial court also imposed one
additional term of three years of actual incarceration for the firearm specifications
in connection with the aggravated robbery counts. Further, the court imposed one
additional term of three years of actual incarceration for the firearm specification
in connection with the kidnapping count, and one for the firearm specification in
connection with the count of abduction.
                                January Term, 1999




       {¶ 15} On appeal, the court of appeals, in 1991, affirmed the judgment of
the trial court in part, reversed it in part, and remanded the cause to the trial court
for the limited purpose of resentencing appellant on the jury’s recommendation of
death for the aggravated murder of Jones.         State v. Chinn (Dec. 27, 1991),
Montgomery App. No. 11835, unreported, 

1991 WL 289178

. The court of appeals
found that the trial judge had committed several errors in the performance of his
functions under R.C. 2929.03(D)(3) and 2929.03(F). Specifically, the court of
appeals held that “the trial judge in performing his independent review for purposes
of sentencing pursuant to R.C. 2929.03(D)(3) erred (1) by failing to state his
findings specifically as required by R.C. 2929.03(F), (2) by failing to consider
relevant mitigating factors, (3) by failing to merge aggravating circumstances, and
(4) by weighing both culpability factors of R.C. 2929.04(A)(7), ‘principal offender’
and ‘prior calculation and design’ * * *.” Id. at 2. Therefore, the court of appeals
vacated appellant’s death sentence and remanded the cause to the trial court “for its
reconsideration and proper imposition of sentence, which may include a sentence
of death or sentences of life imprisonment with parole eligibility as provided by
statute.” Id. Additionally, the court of appeals found that the trial court had erred
when it “imposed more than one sentence of actual incarceration for multiple gun
specifications        arising        from         the         same         transaction
* * *.” Id. Therefore, the court of appeals vacated two of the three terms of actual
incarceration that had been imposed by the trial court in connection with the firearm
specifications. However, the court of appeals affirmed the judgment of the trial
court on all other issues raised on appeal.
       {¶ 16} On remand from the court of appeals’ 1991 decision, defense
counsel, in January 1993, filed in the trial court a motion for imposition of a life
sentence, a motion to present additional mitigation evidence, and a motion
requesting that appellant be present at any resentencing hearing. In August 1994,
defense counsel filed a proffer of evidence and a request to submit certain




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documents under seal. On December 6, 1994, the trial court denied the motions for
imposition of a life sentence, for an additional mitigation hearing, and for appellant
to be present at resentencing. That same day, the trial court filed an opinion and
entry resentencing appellant to death.
       {¶ 17} On appeal from the trial court’s resentencing decision, the court of
appeals, in 1996, vacated appellant’s death sentence, finding that the trial court had
denied appellant the right to be present at resentencing. State v. Chinn (June 21,
1996), Montgomery App. No. 15009, unreported, 

1996 WL 338678

. Therefore,
the court of appeals again remanded the cause to the trial court for resentencing,
i.e., “for imposition of sentence in Chinn’s presence.” Id. at 16-17.
       {¶ 18} On remand from the court of appeals’ 1996 decision, the trial court,
in September 1996, once again imposed the sentence of death. On appeal, the court
of appeals, in August 1997, affirmed the judgment of the trial court and upheld
appellant’s death sentence. State v. Chinn (Aug. 15, 1997), Montgomery App. No.
16206, unreported, 

1997 WL 464736

.
       {¶ 19} The cause is now before us upon an appeal as of right.
                               __________________
       Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Stephen A. Ferrell and Joseph E.
Wilhelm, Assistant Public Defenders, for appellant.
                               __________________
       DOUGLAS, J.
       {¶ 20} Appellant presents twenty-five propositions of law for our
consideration. (See Appendix, infra.) We have considered each of appellant’s
propositions of law and have reviewed the death penalty for appropriateness and
proportionality.   Upon review, and for the reasons that follow, we uphold
appellant’s convictions and sentences, including the sentence of death.
                                January Term, 1999




                                          I
       {¶ 21} We have held, time and again, that this court is not required to
address and discuss, in opinion form, each and every proposition of law raised by
the parties in a death penalty appeal. We continue to adhere to that position today.
We have carefully considered all of the propositions of law and allegations of error
and have thoroughly reviewed the record in its entirety. Many of the issues raised
by appellant have been addressed and rejected by this court under analogous
circumstances in a number of our prior cases. Therefore, these issues require little,
if any, discussion. Additionally, many of appellant’s arguments have been waived.
Upon a careful review of the record and the governing law, we fail to detect any
errors requiring reversal of appellant’s convictions and death sentence. We have
found nothing in the record or in the arguments advanced by appellant that would,
in any way, undermine our confidence in the outcome of appellant’s trial.
Accordingly, we address and discuss, in detail, only those issues that merit detailed
analysis.
                                          II
                             Proposition of Law No. I
       {¶ 22} Appellant contends that the trial court’s instructions to the jury in the
penalty phase failed to adequately define aggravating circumstances and mitigating
factors and gave the jury no guidance on what to weigh for purposes of reaching a
sentencing recommendation. However, appellant failed to object at trial to the
instructions he now claims were erroneous and, thus, he has waived all but plain
error with respect to these matters. We find no plain error here.
       {¶ 23} Appellant was charged with and found guilty of committing one
R.C. 2929.04(A)(3) and two 2929.04(A)(7) specifications of aggravating
circumstances in connection with the aggravated (felony) murder of Jones. The
R.C. 2929.04(A)(3) specification alleged that the aggravated murder was
committed for the purpose of escaping detection, apprehension, trial, or punishment




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for the commission of another offense committed by the offender. One R.C.
2929.04(A)(7) specification alleged that the aggravated murder was committed
during the course of an aggravated robbery and that appellant was either the
principal offender in the commission of the aggravated murder or, if not the
principal offender, committed the aggravated murder with prior calculation and
design. The other R.C. 2929.04(A)(7) specification alleged that the aggravated
murder was committed during the course of a kidnapping and that appellant was
either the principal offender in the murder or, if not, committed the murder with
prior calculation and design.
        {¶ 24} In the penalty phase, the trial court gave the following instruction to
the jury:
        “Members of the Jury, you’ve heard the evidence and the arguments of
counsel, and you will now decide whether you’ll recommend to the Court that the
sentence of death shall be imposed upon the Defendant and, if not, whether you
recommend [one of two life sentencing options].          You will consider all the
evidence, the arguments, the statement of the Defendant, and all other information
and reports which are relevant to the nature and circumstances of the aggravating
circumstances. Among the circumstances that are listed in the statute and there are
eight references have been made and you have found these aggravating
circumstances. One is that if the offense was committed for the purpose of escaping
detection, apprehension, trial, or punishment for another offense committed by the
offender.   Another of those aggravating circumstances is if the offense was
committed while the offender was committing, or attempting to commit, or fleeing
immediately after committing or attempting to commit kidnapping. Then they list
a number of others: Kidnapping and rape; aggravated arson; aggravated robbery;
or aggravated burglary; and either the offender was the principal offender in the
commission of the aggravated murder or, if not the principal offender, committed
the aggravated murder with prior calculation and design. You will consider all the
                                January Term, 1999




evidence, the arguments, the statement of the Defendant, and all of the information
and reports that are relevant to the nature and circumstances of the mitigating facts,
and the mitigating facts include but are not limited to the nature and circumstances
of the offense, and the history, character, and background of the Defendant; and
you may consider, I guess, should consider any facts that are relevant to the issue
of whether the Defendant should be sentenced to death. The prosecutor has the
burden to prove beyond a reasonable doubt that the aggravating circumstances of
which the Defendant was found guilty outweighs [sic] the facts in mitigation of
imposing the death sentence. * * * You shall recommend the sentence of death if
you unanimously, that’s all twelve, find by proof beyond a reasonable doubt that
the aggravating circumstances outweigh the mitigating facts. If you do not so, fine,
you shall unanimously, all twelve, recommend [one of two life sentencing
options].”
       {¶ 25} While the trial court’s instructions to the jury appear to be somewhat
confusing, the instructions clearly do not rise to the level of plain error. The trial
court correctly instructed the jury on the R.C. 2929.04(A)(3) aggravating
circumstance the jury had previously found appellant guilty of committing.
However, in referring to the R.C. 2929.04(A)(7) aggravating circumstances
premised on the kidnapping and aggravated robbery, the trial court referred to a
number of felonies listed in R.C. 2929.04(A)(7) for which appellant was neither
charged nor convicted, i.e., rape, aggravated arson, and aggravated burglary.
Nevertheless, it is a stretch to argue as appellant does now that the trial court
“appear[ed] to be telling the jury that there [were] eight aggravating circumstances”
in this case. (Emphasis sic.) A review of the record clearly reveals that the jury
was made aware throughout the trial that there were three—not eight—
specifications of aggravating circumstances at issue in this case. Moreover, there
was never any evidence offered of arson, rape, or aggravated burglary that may
have led the jury to believe that appellant was guilty of committing an R.C.




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2929.04(A)(7) aggravating circumstance premised upon those particular felonies.
The trial court’s references to arson, rape, and aggravated burglary should not have
been made, but the references do not amount to plain error.
       {¶ 26} Additionally, during its deliberations in the penalty phase, the jury
sent a note to the trial judge requesting a clarification of the aggravating
circumstances and mitigating factors. The note stated, “We would like a summary
of the elements that make up the mitigating and aggravating circumstances/factors.
For example, character of [defendant], testimony of [defendant], etc.” (Emphasis
sic.) The trial court responded, “The aggravating circumstances are those that you
have found in previous specifications and the mitigating factors are those which are
relevant to the issue of whether the defendant should be sentenced to death, and
they include, but are not limited to, the nature and circumstances of the offense and
the history, character and background of the defendant.” We find that the trial
court’s response to the jury’s question clarified that there were only three
aggravating circumstances the jury was to consider and weigh in the penalty phase,
i.e., the three specifications of aggravating circumstances the jury had previously
found appellant guilty of committing.
       {¶ 27} Nevertheless, appellant claims that the trial court’s response to the
jury’s question merely “added to the confusion.” Specifically, appellant argues that
“[b]y telling the jury that the aggravating circumstances were the same as the
specifications, the court instructed the jury to weigh a nonstatutory aggravating
circumstance, the firearm specification, which was attached to each substantive
count in the indictment.”     However, the record does not support appellant’s
arguments in this regard. The record clearly demonstrates that the trial court’s
statement that “[t]he aggravating circumstances are those that you have found in
previous specifications” referred only to the death penalty specifications for which
the jury had previously found appellant guilty of committing.          The firearm
specifications were submitted to the jury only in the guilt phase and were not even
                                January Term, 1999




identified as “specifications” on the verdict forms that were returned by the jury at
the conclusion of the guilt phase. The only specifications that were identified as
such on the verdict forms in the guilt phase of appellant’s trial were the three death
penalty specifications that had been submitted to the jury in connection with Count
One of the indictment, i.e., the R.C. 2929.04(A)(3) specification and the two R.C.
2929.04(A)(7) specifications. For these reasons, it is clear that the trial court’s
response to the jury’s question in the penalty phase did not invite the jury to
consider the firearm specifications as nonstatutory aggravating circumstances.
       {¶ 28} Appellant also contends that the trial court’s response to the jury’s
question concerning aggravating circumstances and mitigating factors led the jury
to consider and to weigh the nature and circumstances of the offense as nonstatutory
aggravating factors. We disagree. The trial court’s response to the jury’s question
listed the nature and circumstances of the offense among the mitigating factors to
be considered by the jury.
       {¶ 29} Next, appellant contends that the R.C. 2929.04(A)(3) and (A)(7)
specifications of aggravating circumstances should have been merged into a single
aggravating circumstance prior to the penalty phase, since, according to appellant,
the specifications were duplicative. The court of appeals, in 1991, determined that
the specifications should have been merged, stating, “In our view, all three
specifications clearly arose from the same act or indivisible course of conduct.
Jones was robbed in downtown Dayton and then driven to a remote area of
Jefferson Township so that he could be killed to conceal the robbery.            The
kidnapping (driving Jones to a rural area) occurred only so as to effectuate the
concealment of the robbery, and, as explained above, the concealment of the
robbery must merge with the robbery itself as a matter of law. Furthermore, the
kidnapping was merely incidental to the robbery, and thus must be merged for this
reason as well.” Chinn, Montgomery App. No. 11835, unreported, at 50-51.
Therefore, the court of appeals concluded that the trial court had erred by “failing




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to merge the three aggravating factors into one, viz., that Chinn was the principal
offender in the aggravated murder committed while he was fleeing immediately
after committing an aggravated robbery, per R.C. 2929.04(A)(7).” Id. at 53-54.
However, the court of appeals also determined that the trial court’s failure to merge
the duplicative specifications in its instructions to the jury did not amount to plain
error. Id. at fn. 2. We agree. On remand from the court of appeals’ 1991 decision,
the trial court merged the allegedly duplicative specifications into one R.C.
2929.04(A)(7) specification and imposed the death sentence upon a finding that the
single aggravating circumstance outweighed the evidence in mitigation beyond a
reasonable doubt. The court of appeals, in 1997, also considered a single R.C.
2929.04(A)(7) specification for purposes of its independent sentencing review and
concluded that the aggravating circumstance outweighed the mitigating factors
beyond a reasonable doubt. Chinn, Montgomery App. No. 16206, unreported. We
believe that this conclusion was virtually inescapable. Indeed, given the dearth of
mitigating evidence in this case, it is clear to us that the outcome of appellant’s trial
would not have been any different had the three specifications of aggravating
circumstances been merged into one prior to the penalty phase.
        {¶ 30} Additionally, this court can cure any error related to duplicative
aggravating circumstances by merging the three specifications of aggravating
circumstances as part of our independent sentencing review. See, generally, State
v. Palmer (1997), 

80 Ohio St.3d 543, 575

, 

687 N.E.2d 685

, 711. For purposes of
our independent review, we too have considered only one aggravating
circumstance, i.e., the single R.C. 2929.04(A)(7) aggravating circumstance
predicated on aggravated robbery. Our independent review has produced no
different outcome despite the merger of the allegedly duplicative specifications.
See discussion in Part XXIV, infra.
        {¶ 31} Appellant also claims the trial court erred by instructing the jury in
the penalty phase on both the principal offender and the prior calculation and design
                                January Term, 1999




aspects of R.C. 2929.04(A)(7). Appellant asserts that the jury should have been
instructed that it could not consider whether appellant committed the murder with
prior calculation and design if appellant was found to be the principal offender in
the aggravated murder. However, we have held that “a trial court may instruct the
jury on prior calculation and design and principal offender status disjunctively in
the same specification.” State v. Burke (1995), 

73 Ohio St.3d 399, 405

, 

653 N.E.2d 242

, 248. That is precisely what occurred in the case at bar.
       {¶ 32} The court of appeals vacated the appellant’s death sentence in 1991
because the trial court, in its original sentencing opinion, had determined that
appellant was the principal offender and that he had committed the offense with
prior calculation and design. Chinn, Montgomery App. No. 11835, unreported, at
52-57. Appellant claims that “[b]ecause the trial court committed precisely this
error, it is highly likely that the jury did also.” However, appellant’s argument is
purely speculative and is not supported by the record. Moreover, contrary to
appellant’s arguments, it is clear to us that the jury unanimously determined that
appellant was the principal offender in the aggravated murder of Jones. At trial,
the state’s evidence portrayed appellant as the principal offender. Conversely,
appellant offered a defense of alibi. Thus, the main issue for the jury was one of
identity, i.e., either appellant shot and killed the victim or appellant was somewhere
else at the time of the killing. There was no evidence at trial that anyone other than
appellant was the actual killer if, in fact, appellant was the man who was with
Marvin Washington on the night in question. Therefore, the evidence suggested
that appellant was either the principal offender in the aggravated murder or, if not
the principal offender, that he committed no offense at all. The jury obviously
accepted the state’s theory of the case and, in so doing, found appellant to be the
principal offender in the aggravated murder. Under these circumstances and
because the jury was instructed on the principal offender and the prior calculation
and design aspects of R.C. 2929.04(A)(7) in the disjunctive, there is no danger that




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the jury actually considered the prior calculation and design alternative of the R.C.
2929.04(A)(7) death penalty specifications during its sentencing deliberations.
       {¶ 33} Accordingly, for the foregoing reasons, appellant’s first proposition
of law is not well taken.
                                         III
                             Proposition of Law No. II
       {¶ 34} The matter concerning the appropriateness of appellant’s death
sentence is addressed in our discussion in Part XXIV, infra.
                                         IV
                            Proposition of Law No. III
       {¶ 35} The matter concerning the proportionality of appellant’s death
sentence is addressed in our discussion in Part XXIV, infra.
                                         V
                            Proposition of Law No. IV
       {¶ 36} Appellant raises claims of prosecutorial misconduct, but many of
appellant’s arguments have been waived by his failure to object at trial. We have
carefully reviewed the record in its entirety and have considered all of appellant’s
claims of prosecutorial misconduct. We have found no instance of prosecutorial
misconduct that would rise to the level of reversible error. The instances of alleged
misconduct, taken singly or together, did not substantially prejudice appellant or
deny him a fair trial and a fair and reliable sentencing determination.
                                 January Term, 1999




                                          VI
                              Proposition of Law No. V
        {¶ 37} Appellant contends that the trial court erred by failing to define the
term “principal offender” as part of the instructions to the jury in the guilt phase.
Appellant claims that the failure to define that term was tantamount to a failure to
instruct on an essential element of the R.C. 2929.04(A)(7) specifications. However,
appellant not only failed to object to the lack of instruction, but he also failed to
raise the issue on appeal to the court of appeals. Therefore, appellant has waived
all but plain error with respect to this matter.
        {¶ 38} The term “principal offender,” as it is used in R.C. 2929.04(A)(7),
means “the actual killer.” State v. Penix (1987), 

32 Ohio St.3d 369, 371

, 

513 N.E.2d 744, 746

. The jury should have been so instructed. However, the absence
of the instruction does not amount to plain error. Here, the state presented strong
evidence identifying appellant as the killer. Conversely, the defense claimed that
appellant was at home at the time of the killing. There was no evidence to suggest
that appellant, if he was present at the time of the aggravated murder, was anything
but the actual killer. Therefore, in order to find appellant guilty of the R.C.
2929.04(A)(7) specifications, the jury would have had to conclude that appellant
was the actual killer. Under these circumstances, the trial court’s failure to sua
sponte instruct the jury that “principal offender” means the actual killer was not
outcome-determinative. See State v. Stojetz (1999), 

84 Ohio St.3d 452, 461

, 

705 N.E.2d 329, 339

.
                                          VII
                             Proposition of Law No. VI
        {¶ 39} In his sixth proposition of law, appellant contends that the trial court
erred by allowing Shirley Ann Cox to testify at trial concerning appellant’s visit to
her husband’s law office. Appellant claims that Cox’s testimony was irrelevant and
was unfairly prejudicial. We agree with appellant’s assertions that the trial court




                                           17
                             SUPREME COURT OF OHIO




should not have permitted Cox to testify that her encounter with appellant occurred
in a law office. However, we also agree with the court of appeals’ finding in 1991
that although the evidence was “unfairly prejudicial, that unfairness does not clearly
jeopardize the fundamental fairness of the proceeding or the reliability of the
verdict.” Chinn, Montgomery App. No. 11835, unreported, at 38. Appellant
protests that the court of appeals’ holding on this issue “fails to take into account
the fundamental weakness of the State’s case against Chinn.” However, appellant’s
arguments plainly mischaracterize the strength of the evidence against him which,
in our view, cannot seriously be labeled as “weak.” Rather, the state’s case against
appellant was substantial and compelling.
       {¶ 40} Appellant also suggests that Cox’s testimony concerning her
identification of appellant as the person depicted in the composite drawing should
have been excluded because Cox did not witness the crimes and her testimony may
have misled or confused the jury. However, the jury was not misled or confused
by Cox’s testimony. The jury was well aware that Cox did not witness the killing.
Her testimony was relevant to the fact that she had seen a man who identified
himself as Tony Chinn and that she subsequently saw a composite sketch of the
suspected killer and recognized the resemblance between the composite and Chinn.
While this testimony was largely irrelevant to the question of appellant’s guilt, the
testimony was relevant to inform the jury of the events that led to appellant’s
apprehension and arrest.      Cox’s testimony also corroborated Washington’s
testimony that appellant (whose real name is Davel Von Tress Chinn) went by the
name of Tony Chinn. The evidence was not confusing or misleading in any way.
       {¶ 41} We conclude that while it might have been better for the trial court
to have excluded Cox’s testimony altogether, or at least any reference to the fact
that she had seen appellant in a law office, the trial court’s decision to allow Cox’s
testimony was harmless beyond a reasonable doubt. Cox’s testimony was not a
major factor in this case. Indeed, her testimony comprises less than eight full pages
                                January Term, 1999




of the printed transcript. The state’s case against appellant hinged on the testimony
of Marvin Washington. If the jury accepted Washington’s testimony, the jury was
certain to convict appellant, but if the jury did not believe Washington, it was
certain to acquit appellant of all charges. Had the jury disregarded Washington’s
account of the crimes, Cox’s testimony would have made no difference. However,
the jury believed Washington and, therefore, the verdicts of guilt were inevitable.
Cox’s testimony had little or no impact on the outcome.
       {¶ 42} In this proposition, appellant also contends that the trial court erred
by permitting Detective David Lantz to testify at trial concerning Cox’s
identification of appellant at the February 27, 1989 lineup. At trial, the following
exchange took place during the state’s direct examination of Detective Lantz:
       “Q. Was Mrs. Cox able to make an —
       “MR. MONTA [defense counsel]: Objection, your Honor. We need to
approach on this.
       “MR. MONTA: Your Honor, the prosecution had Mrs. Cox on the stand.
They also had these documents which would indicate whether a person is seen in a
line-up or not. They did not choose to go into that with Mrs. Cox, and as a result
of no questioning on this subject with her, this * * * testimony is going to be
hearsay.
       “THE COURT:      Well, defense has also known that she had made the
identification, which she could have been asked about. The fact that she was not
asked by either party does not in any way prevent this witness to testify as to what
he saw. I’ll overrule the objection.
       “Q. Was Mrs. Cox able to [make an] identification at the line-up?
       “A. Yes, she was.
       “Q. Who[m] did she indicate?
       “A. Again, number seven, the Defendant Davel Chinn.”




                                         19
                              SUPREME COURT OF OHIO




       {¶ 43} Appellant contends that Lantz’s testimony constituted impermissible
hearsay and resulted in substantial prejudice. We disagree. Lantz’s statements
concerning Cox’s identification of appellant were not hearsay.          Evid.R. 801
provides:
       “(D) A statement is not hearsay if:
       “(1) The declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is * * * (c) one of
identification of a person soon after perceiving him, if the circumstances
demonstrate the reliability of the prior identification.”
       {¶ 44} As the court of appeals ably recognized, “[b]ecause Cox was ‘subject
to cross-examination’ on the lineup, regardless of whether she was actually ever
subjected to such examination, Det. Lantz’s testimony was not hearsay.”
(Emphasis sic.) Chinn, Montgomery App. No. 11835, unreported, at 39. We agree
that Lantz’s testimony did not constitute hearsay under Evid.R. 801(D)(1)(c).
Moreover, and in any event, we fail to see how that testimony was prejudicial to
appellant.
       {¶ 45} Appellant also argues that the trial court erred by permitting
Detective Lantz to testify at trial, over defense objection, concerning Washington’s
explanation for not immediately identifying appellant at the lineup. Appellant
contends that Lantz’s testimony was hearsay. However, even if the testimony at
issue was hearsay, and we do not believe that it was (see Evid.R. 801[D][1][b] and
Chinn, Montgomery App. No. 11835, unreported, at 75-76), prejudice is lacking in
that Washington had earlier testified as to the statement he made to Lantz.
       {¶ 46} Additionally, appellant challenges Christopher Ward’s testimony
concerning certain statements that Washington had made in the early morning hours
of January 31, 1989.       Specifically, appellant claims that Ward’s testimony
constituted inadmissible hearsay. Appellant failed to object to the testimony at trial
and, thus, has waived all but plain error with respect to these matters. We agree
                                 January Term, 1999




with appellant that the testimony of Ward at issue was hearsay. However, we
conclude that appellant has failed to demonstrate plain error, i.e., that but for the
alleged errors, the outcome of his trial clearly would have been otherwise.
Therefore, we reject appellant’s arguments concerning Ward’s testimony.
       {¶ 47} Accordingly, for the foregoing reasons, appellant’s sixth proposition
of law is not persuasive.
                                         VIII
                             Proposition of Law No. VII
       {¶ 48} The court of appeals, in 1991, vacated appellant’s original death
sentence on grounds that the trial judge, after receiving the jury’s recommendation,
had committed errors in his original independent evaluation under R.C.
2929.03(D)(3) and in his original sentencing opinion. However, the court of
appeals also determined that the jury’s recommendation had not been tainted by
error. Therefore, since the errors had been committed by the trial court and not by
the jury, the court of appeals determined that the rule of Penix, 

32 Ohio St.3d 369

,

513 N.E.2d 744

, syllabus, did not prohibit the trial court from reimposing the death
sentence on remand. Chinn, Montgomery App. No. 11835, unreported, at 55-57.
In this regard, the court of appeals found the situation analogous to one in which a
three-judge panel commits error in sentencing—a situation that would not preclude
reimposition of a death sentence. 

Id.,

 citing State v. Davis (1988), 

38 Ohio St.3d 361

, 

528 N.E.2d 925

, syllabus (“When a reviewing court vacates the death sentence
of a defendant imposed by a three-judge panel due to error occurring at the penalty
phase, not otherwise covered by [former] R.C. 2929.06, and the reviewing court
does not find the evidence to be legally insufficient to justify imposition of the death
sentence, such reviewing court may remand the action to that trial court for a
resentencing hearing at which the state may seek whatever punishment is lawful,
including, but not limited to, the death sentence.”).




                                          21
                              SUPREME COURT OF OHIO




        {¶ 49} On remand from the court of appeals’ 1991 decision vacating
appellant’s original death sentence, appellant filed motions in the trial court
requesting, among other things, a hearing to present additional mitigation evidence
and requesting to be present at resentencing. The trial court denied these motions
and, in 1994, once again imposed the death sentence. This time, the trial court
complied with all statutory mandates, including those required under R.C.
2929.03(F), but did not impose the death sentence in appellant’s presence.
        {¶ 50} Thereafter, on appeal from the trial court’s resentencing decision,
the court of appeals, in 1996, held that it was error for the trial court to have denied
appellant the right to be present at resentencing. Chinn, Montgomery App. No.
15009, unreported. However, the court of appeals found that the trial court had not
erred by refusing to conduct an evidentiary hearing on remand. Id. at 2-6. The
court of appeals stated, “When we remanded Chinn’s case, we did not expect the
trial court to conduct a resentencing hearing, and we find no compelling reason why
Chinn should have been afforded a second opportunity to present mitigating
evidence prior to sentencing. Chinn was given a full opportunity to present such
evidence at the initial sentencing hearing. The error for which we remanded the
matter occurred after the mitigating evidence had been presented and after the jury
had made its recommendation based upon that evidence. On remand, the trial court
was required to proceed from the point at which the error occurred. State ex rel.
Stevenson v. Murray (1982), 

69 Ohio St.2d 112, 113

 [

23 O.O.3d 160

, 160-161, 

431 N.E.2d 324, 325

]. In Chinn’s case, the error occurred after the sentencing hearing.”
Id. at 5. Therefore, the court of appeals remanded the matter to the trial court “for
imposition of sentence in Chinn’s presence” and reiterated that the sentencing
options included the possibility of a death sentence. Id. at 16-17.
        {¶ 51} On remand from the court of appeals’ 1996 decision, the trial court,
in appellant’s presence, once again imposed the death sentence. In its sentencing
entry, the trial court stated, “With regard to Count 1, it is the conclusion of this
                                 January Term, 1999




Court that the verdict of the jury recommending death be accepted.” On appeal,
the court of appeals, in 1997, affirmed. Chinn, Montgomery App. No. 16206,
unreported.
        {¶ 52} In his seventh proposition of law, appellant contends that he was
ineligible for the death penalty on remand from the court of appeals’ 1991 decision
vacating his original death sentence. Appellant claims that “[w]hen the court of
appeals vacated Chinn’s death sentence it also vacated the trial jury’s sentencing
recommendation.” We disagree. In neither case where the court of appeals vacated
appellant’s death sentence did the appellate court purport to vacate the jury’s
verdict recommending imposition of the death penalty. Nor was the court of
appeals required to vacate the jury’s recommendation in this case. The appellate
court specifically determined, and we agree, that the recommendation of the jury
was untainted by error. Moreover, contrary to appellant’s contentions, Penix does
not preclude the trial court from imposing the death sentence on remand. The
reason, of course, is that the errors identified and relied upon by the court of appeals
in vacating appellant’s original death sentence in 1991 related to the trial judge’s
independent evaluation of sentence. These errors were committed after the jury
had returned its verdict in the penalty phase. Under these circumstances, the court
of appeals correctly determined that Penix does not prohibit the trial judge, on
remand, from accepting the jury’s 1989 sentencing recommendation. Rather, as
the court of appeals recognized, the trial court was required to proceed on remand
from the point at which the errors had occurred, i.e., after the jury had returned its
recommendation of death.
        {¶ 53} In this proposition, appellant also argues that he had “an absolute
right to present any new mitigating evidence at his resentencing hearing in 1994.”
In support of this proposition, appellant relies on several United States Supreme
Court opinions requiring that the sentencer not be precluded from considering
relevant mitigating evidence in a capital case. See, e.g., Lockett v. Ohio (1978),




                                          23
                              SUPREME COURT OF OHIO

438 U.S. 586

, 

98 S.Ct. 2954

, 

57 L.Ed.2d 973

; Skipper v. South Carolina (1986),

476 U.S. 1

, 

106 S.Ct. 1669

, 

90 L.Ed.2d 1

; and Hitchcock v. Dugger (1987), 

481 U.S. 393

, 

107 S.Ct. 1821

, 

95 L.Ed.2d 347

. However, each of those cases involved
a situation where the capital sentencer was prohibited, in some form or another,
from considering relevant mitigating evidence at trial. In the case at bar, no relevant
mitigating evidence was ever excluded from consideration during the penalty phase
of appellant’s 1989 trial. Therefore, the case at bar is clearly distinguishable from
the United States Supreme Court’s pronouncements in Lockett, Skipper, and
Hitchcock. Accordingly, as was the case in State v. Davis (1992), 

63 Ohio St.3d 44, 46

, 

584 N.E.2d 1192, 1194-1195

, we find Lockett, Skipper, and Hitchcock to be
inapplicable here. It is of no consequence that the additional mitigating evidence
in Davis involved post-trial accomplishments, whereas appellant’s additional
mitigation evidence involves matters appellant claims he could have presented but
did not present during the mitigation phase of his 1989 trial. In this case, as in
Davis, the errors requiring resentencing occurred after the close of the mitigation
phase of the trial. Under these circumstances, the trial court is to proceed on remand
from the point at which the error occurred. Appellant’s arguments to the contrary
are not well taken. In addressing this issue, the appellate court stated, “In sum,
Chinn was not entitled to an opportunity to improve or expand his evidence in
mitigation simply because we [the court of appeals] required the trial court to
reweigh the aggravating circumstance and mitigating factors.”                   Chinn,
Montgomery App. No. 15009, unreported, at 6. We agree with the court of appeals’
assessment of this issue.
        {¶ 54} Additionally, appellant takes issue with the fact that in its 1996
sentencing entry the trial court simply stated, “it is the conclusion of this Court that
the verdict of the jury recommending death be accepted.” Appellant contends that
the trial court failed to independently weigh the aggravating circumstance and the
mitigating factors in reimposing the death sentence in 1996 and failed to comply
                                January Term, 1999




with the requirements for the issuance of a sentencing opinion under R.C.
2929.03(F). However, the trial court’s 1994 sentencing opinion fully complied
with the requirements of R.C. 2929.03(F). The mere fact that the trial court did not
specifically incorporate its 1994 sentencing opinion into its 1996 sentencing entry
does not rise to the level of reversible error. Furthermore, appellant failed to raise
this issue during his final appeal to the court of appeals and, therefore, appellant’s
arguments have been waived.
       {¶ 55} Accordingly, for all of the foregoing reasons, we reject appellant’s
seventh proposition of law.
                                         IX
                            Proposition of Law No. VIII
       {¶ 56} In his eighth proposition of law, appellant contends that the evidence
is insufficient to establish his identity as the perpetrator of the aggravated murder.
He also claims that the evidence is insufficient to show that he specifically intended
to cause the death of his victim. Appellant’s contentions are not well taken.
       {¶ 57} In this proposition, appellant essentially asks us to evaluate the
credibility of witnesses and to resolve all evidentiary conflicts in his favor.
However, in reviewing the sufficiency of evidence, “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 

443 U.S. 307, 319

, 

99 S.Ct. 2781, 2789

, 

61 L.Ed.2d 560, 573

.
       {¶ 58} Appellant argues that Marvin Washington’s testimony is inherently
unreliable and wholly unbelievable. We emphatically disagree. Washington’s trial
testimony was cogent and intelligible, and we are completely satisfied that his
testimony identifying appellant as the killer, if accepted, sufficiently and
overwhelmingly establishes appellant’s guilt beyond a reasonable doubt. Appellant
points out that Washington was a participant in the crimes. This is undoubtedly




                                         25
                             SUPREME COURT OF OHIO




true. Washington was an eyewitness to the killing and he participated in and
witnessed all aspects of the crimes. As a participant, he was in a much better
position to identify the killer than anyone else who testified at trial. Washington
had nothing to gain from testifying against appellant.           Prior to testifying,
Washington was charged with and was sentenced in juvenile court for his
participation in these crimes. Washington’s testimony at appellant’s trial was not
part of any plea agreement. Additionally, as a juvenile offender, Washington was
not eligible for the death penalty as an accomplice to the crimes. Therefore, in
addition to having been in the best position to identify the killer, Washington simply
had no reason to lie.
       {¶ 59} At trial, Washington testified that he and appellant robbed two men
in Dayton and that they kidnapped Jones in Jones’s car. Welborn corroborated
Washington’s description of the robbery, the abduction, the kidnapping, and the car
theft. Welborn testified that Washington was one of the perpetrators of the robbery.
Welborn never saw the face of the second robber, but Washington’s testimony
clearly identified appellant as the other participant in the crimes. Washington
testified that he and appellant drove Jones to an area of Jefferson Township.
According to Washington, appellant then got out of the car and shot Jones. Stacy
Dyer witnessed the shooting. Although Dyer did not get a look at the shooter and
therefore could not identify him, Dyer’s testimony corroborated, in large part,
Washington’s description of the events that occurred in Jefferson Township on the
night of January 30, 1989. Washington also testified that he and appellant then
drove in the victim’s car to Lome Avenue in Dayton and that they spoke to
Christopher Ward. Ward testified that he saw Washington and appellant in Jones’s
car in the early morning hours of January 31, 1989. Therefore, Ward’s testimony
not only corroborated Washington’s testimony but also served to severely
undermine appellant’s alibi defense.
                                January Term, 1999




       {¶ 60} Appellant points out that Washington failed to immediately identify
him at a lineup conducted on February 27, 1989. However, the reason that
Washington had failed to do so was adequately explained at trial. Additionally,
there is no dispute that immediately after the lineup Washington summoned
Detective Lantz into an interview room and positively identified appellant as the
perpetrator of the aggravated murder.
       {¶ 61} Appellant also points out that several witnesses at trial indicated that
the man who was with Washington on the night of the murder was taller than
appellant. However, this discrepancy in the evidence does not severely undermine
either Washington’s testimony identifying appellant as the killer or Ward’s
testimony that he saw appellant and Washington in the victim’s car shortly after the
murder.
       {¶ 62} The fact remains that Washington was the state’s eyewitness to the
crimes and that he positively identified appellant as the killer. The jury accepted
Washington’s testimony. Upon a review of the entire record, it is clear to us that
Washington’s testimony was neither inherently unreliable nor inherently
unbelievable. Indeed, upon a careful review of the record before us, we find
Washington’s testimony to be entirely believable. However, we note, in passing,
that our view of the credibility of witnesses is not what is important on the question
of sufficiency of the evidence. What is important is our finding that the evidence
in this case was sufficient to establish appellant’s identity as the perpetrator of the
aggravated murder.
       {¶ 63} Appellant also claims that the evidence is insufficient to show that
he specifically intended to cause Jones’s death, since the fatal shot had been fired
into the upper portion of Jones’s left arm. However, the evidence at trial established
that the muzzle of the revolver was pressed against the victim’s sweatshirt at the
time the weapon was discharged. The projectile entered through the victim’s left
arm, entered his chest, perforated the main pulmonary artery, and came to rest near




                                          27
                             SUPREME COURT OF OHIO




the base of his heart. We therefore have great difficulty accepting appellant’s
characterization of the evidence as indicating nothing more than that the victim was
“shot in the arm.” The shot was fired in a manner that was likely to and did cause
the victim’s death. Additionally, “[i]t is well-established that ‘where an inherently
dangerous instrumentality was employed, a homicide occurring during the
commission of a felony is a natural and probable consequence presumed to have
been intended. Such evidence is sufficient to allow a jury to find a purposeful intent
to kill.’ ” State v. Esparza (1988), 

39 Ohio St.3d 8, 14

, 

529 N.E.2d 192, 199

,
quoting State v. Jester (1987), 

32 Ohio St.3d 147, 152

, 

512 N.E.2d 962, 968

. The
evidence was clearly sufficient to show that appellant specifically intended to cause
the death of his victim.
       {¶ 64} Upon a careful review of the entire record, we find that the evidence
was more than sufficient to establish appellant’s identity as the perpetrator of the
aggravated murder and to show that he specifically intended to cause the death of
his victim. Accordingly, we reject appellant’s eighth proposition of law.
                                          X
                            Proposition of Law No. IX
       {¶ 65} The matter raised in appellant’s ninth proposition of law has been
waived.    Moreover, we find no merit to appellant’s arguments that R.C.
2929.03(D)(1) somehow renders R.C. 2929.04(A) and (B) unconstitutionally
vague. Accordingly, appellant’s ninth proposition of law is not well taken.
                                         XI
                             Proposition of Law No. X
       {¶ 66} Appellant contends that he is entitled to a new trial because there is
nothing in the record to indicate that appellant and defense counsel were present on
two occasions involving communications between the trial court and the jury.
However, we are unwilling to presume that appellant and his attorneys were not
present during the times in question. Rather, “the record must affirmatively indicate
                                 January Term, 1999




the absence of a defendant or his counsel during a particular stage of the trial.”
(Emphasis added.) State v. Clark (1988), 

38 Ohio St.3d 252, 258

, 

527 N.E.2d 844, 851

. The record does not affirmatively so indicate and, therefore, we reject
appellant’s tenth proposition of law.
                                          XII
                              Proposition of Law No. XI
        {¶ 67} We find no errors in the manner in which the trial court conducted
voir dire.
                                          XIII
                             Proposition of Law No. XII
        {¶ 68} In his twelfth proposition of law, appellant argues that the trial court
erred by denying his request for a bill of particulars. In this proposition, appellant
also contends that the prosecution failed to comply with certain discovery rules and
thereby deprived him of a fair trial. For the following reasons, we reject appellant’s
Proposition of Law No. XII.
        {¶ 69} During a hearing on various pretrial motions the trial court denied
appellant’s motion for a bill of particulars. The trial court noted that appellant’s
motion had been untimely filed and determined that, even if the motion was timely,
a bill of particulars was not necessary to aid appellant in preparing for trial.
Appellant contends that the trial court’s denial of his request for a bill of particulars
rendered him unable to present an adequate defense. We disagree with appellant’s
contentions.
        {¶ 70} Assuming, without deciding, that appellant’s request was timely, it
was clear error for the prosecution to fail to provide a bill of particulars and for the
trial court to have denied appellant’s motion. The law is clear: “In a criminal
prosecution the state must, in response to a request for a bill of particulars * * *,
supply specific dates and times with regard to an alleged offense where it possesses




                                           29
                             SUPREME COURT OF OHIO




such information.” State v. Sellards (1985), 

17 Ohio St.3d 169

, 17 OBR 410, 

478 N.E.2d 781

, syllabus.
       {¶ 71} However, appellant correctly notes that the issue raised herein
ultimately turns on the question whether appellant’s lack of knowledge concerning
the specific facts a bill of particulars would have provided him actually prejudiced
him in his ability to fairly defend himself. Here, the denial of appellant’s request
in no way precluded or otherwise hindered him from effectively presenting his
defense. A review of the indictment plainly indicates that appellant was being
charged with the aggravated (felony) murder of Brian Jones, the kidnapping of
Jones, the abduction of Welborn, and three separate aggravated robbery offenses,
all of which occurred January 30, 1989. Moreover, the record clearly reveals that
defense counsel knew from the information they were able to obtain that the
offenses had occurred between the hours of 11:00 p.m. and midnight on January
30, 1989. Therefore, the record simply does not support appellant’s claims that he
lacked specific information as to the offenses charged. Thus, while the denial of a
timely request for a bill of particulars should never occur, it is clear that appellant
suffered no prejudice as a consequence of the denial that occurred in this case.
       {¶ 72} Appellant also asserts that the trial court erred when it failed to grant
discovery in accordance with the Local Rules of the Court of Common Pleas of
Montgomery County, General Division. Specifically, the trial court in this case
ordered that discovery would proceed pursuant to Crim.R. 16 as opposed to Loc.R.
3.01 and 3.03. While much could be said concerning Crim.R. 16 and the theory of
“open file” discovery of the type authorized by local rule (see, e.g., State v. Lambert
[1994], 

69 Ohio St.3d 356, 356-357

, 

632 N.E.2d 511, 511

 [Pfeifer, J., concurring];
see, also, State ex rel. Steckman v. Jackson [1994], 

70 Ohio St.3d 420, 428-429

,

639 N.E.2d 83, 89-90

), suffice it to say that our review of the record reveals that
appellant suffered no prejudice in connection with the trial court’s decision to
adhere to Crim.R. 16 exclusively. The record is clear that appellant was in
                                January Term, 1999




possession of much of the material that would have been available to him had the
local rules been deemed applicable by the trial court. With respect to the materials
that appellant allegedly did not have and to which he claimed entitlement under the
local rules, appellant has utterly failed to demonstrate that he was prejudiced in any
discernible way.
       {¶ 73} We also find no reversible error in connection with any of the other
matters appellant has raised in this proposition of law. Appellant’s argument
concerning the alleged Brady violation (see Brady v. Maryland [1963], 

373 U.S. 83

, 

83 S.Ct. 1194

, 

10 L.Ed.2d 215

) and his argument with respect to the denial of
a motion to seal the prosecutor’s file for appellate review are not well taken.
                                        XIV
                            Proposition of Law No. XIII
       {¶ 74} At trial, Christopher Ward testified that on January 31, 1989, at
approximately 12:30 or 1:00 a.m., Washington had pulled up to 5213 Lome Avenue
in the black Chevrolet Cavalier and introduced Ward to “Tony,” who was seated in
the front passenger’s seat. Ward testified that he shook Tony’s hand and then spoke
to Washington for approximately thirty to forty-five minutes until Washington and
Tony drove away. Ward identified appellant as the man that Washington had
introduced as Tony. During cross-examination, defense counsel sought to cast
doubt on Ward’s identification of appellant. During questioning, the following
exchange took place:
       “Q. Do you remember telling McKeever —
       “MR. HECK: I’m going to object now even though he didn’t get to finish
what he’s going to quote.
       “THE COURT: Let me see counsel at side Bench.
       “***
       “THE COURT: Let’s make a record. First of all, let’s have your complete
question.




                                         31
                              SUPREME COURT OF OHIO




       “MR. MONTA: Okay. The question which we would like to ask this witness
was if he gave an oral statement to Major McKeever, Major Ronald McKeever,
with the Jefferson Township Police on the 5th of February, 1989, and did he say to
Major McKeever he did not pay any attention to the other man in the car whose
name was Tony.
       “MR. HECK: I object. If he wants to cross-examine him on an alleged
inconsistency in the statements, written statements, that’s fine. But, my reading of
the written statements there is not that inconsistency. He is trying to cross-examine
this witness on either a made-up statement or on something that’s in the police
report, which they have, and I object.
       “THE COURT: First of all, under Rule 16, the police report is not available.
Secondly, the copy of the statement given to the Court made by this witness on the
5th of February, and McKeever as the officer signing it, has nothing to do with this
question. It does not contain any reference to the question before the Court;
therefore, the question has to be solely caused by this police report, and so the Court
will sustain the objection.
       “MR. MONTA: May I just add, your Honor, the question which would be
asked is one in which the defense is attempting to test the credibility of what the
witness has said and answer will either be consistent with or impeach that
testimony.
       “THE COURT: Police reports are inherently inaccurate and that is the very
reason why under criminal rule 16 they are not to be made available and not to be
used on cross-examination of any witnesses. On that basis, the Court sustains the
objection.” (Emphasis added.)
       {¶ 75} The court of appeals in its 1991 decision in this matter found that the
trial court had erred by denying defense counsel the opportunity to cross-examine
Ward on the alleged prior inconsistent statement, finding that “[w]hether evidence
is discoverable under Crim.R. 16 has no bearing on its [admissibility],” since such
                                January Term, 1999




evidence could be relevant, and all relevant evidence is generally admissible.
Chinn, Montgomery App. No. 11835, unreported, at 73. The court of appeals found
that the question defense counsel propounded “did not concern a police report, but
a prior statement of the witness to a police officer,” and that “Ward’s statements to
Officer McKeever concerning ‘Tony’ were certainly relevant to his identification
of Appellant.” 

Id.

 Therefore, the court of appeals determined, “To the extent that
[Ward’s statements to McKeever] might contradict Ward’s trial testimony they
were proper grounds for impeachment.” 

Id.

 Additionally, the court of appeals
stated, “Appellant was prohibited by Evid.R. 613(B) from introducing evidence of
the inconsistent statement in extrinsic form, that is, by way of McKeever’s
testimony or his written report, unless Ward was first afforded an opportunity to
explain and deny the same. The trial court’s ruling foreclosed that opportunity.
The error was prejudicial if the prior statement could reasonably cause the jury to
reject Ward’s testimony.” Id. at 73-74. However, on the issue of prejudice, the
court of appeals determined that “the error was not so prejudicial as to require
reversal.” Id. at 74.
       {¶ 76} Upon a review of the record, we find that the error, if any, in the trial
court’s decision not to permit defense counsel to cross-examine Ward on the
alleged prior inconsistent statement did not unfairly prejudice appellant. After the
trial court had sustained the objection to the question propounded by defense
counsel, the defense questioned Ward whether he had ever “talked to McKeever
about the description of the man on the passenger’s side” of Jones’s automobile.
Ward responded, “I don’t remember at all.” Later, during the cross-examination of
Major McKeever, defense counsel was permitted to question McKeever concerning
the statements that Ward had allegedly made on February 5, 1989:
       “Q. Now, you also did some investigation in this case; did you not?
       “A. Yes, sir.




                                         33
                              SUPREME COURT OF OHIO




       “Q. And before you interviewed Marvin Washington, did you not interview
a person by the name of Christopher Ward?
       “A. Yes, sir. I did.
       “Q. In fact, you interviewed him first; is that correct?
       “A. That’s correct.
       “Q. On the same day, the 5th of February?
       “A. I can’t recall the day. I probably would have to see my report.
       “***
       “Q. This starts at page 12, which was provided to us. Is that your statement?
       “A. Yes, that’s mine.
       “Q. All right.
       “A. That was on the same day.
       “Q. And was Mr. Ward able to give you a description of the person that he
said he saw, the other person, not Marvin Washington?
       “A. Very — he indicated to me that he — well, he did see the driver.
       “Q. Right.
       “A. And shook hands with him, but he was more interested in the car they
were driving, the dashboard.
       “Q. Didn’t he indicate to you that he didn’t pay any attention to the other
person?
       “A. Yes, sir, meaning that he spoke to the gentleman but he was more
interested in the dashboard of that particular automobile.
       “Q. More interested in the dashboard and didn’t pay any attention to the
other person?
       “A. Correct.”
       {¶ 77} During redirect examination, the prosecutor questioned McKeever
concerning the police report. The prosecution asked McKeever, “I’m going to ask
you, they [the defense] asked you about the statement and what Christopher Ward
                                 January Term, 1999




told you. They asked you this on cross-examination, about the second person, the
passenger, this Tony in the car, and I believe Mr. Monta asked about paying
attention to him. Was that your conclusion or is it his words?” McKeever
responded, “That was my conclusion.” The prosecution also asked, “Did Mr. Ward
tell you at all times that he could identify the passenger in that car?” McKeever
responded, “Several times.” The prosecution then asked, “Did he also tell you that
he saw the passenger and shook hands, in fact, with the passenger in the victim’s
car along with Marvin Washington?” McKeever replied, “That’s correct.”
         {¶ 78} The record is clear that defense counsel had an opportunity to
impeach Ward’s trial testimony during cross-examination of McKeever by
questioning McKeever concerning Ward’s alleged prior inconsistent statement that
he “didn’t pay any attention” to the man who was with Washington in the victim’s
car. The record is equally clear that Ward never made any such statement to
McKeever. Rather, the statement at issue was McKeever’s own statement and was
the product of McKeever’s own conclusions. In actuality, Ward specifically told
McKeever that he had seen “Tony” and that he could positively identify him. Ward
did positively identify appellant, and he did so on three separate occasions, i.e.,
once from a photo array, once at the lineup, and again at trial. Therefore, the alleged
inconsistent statement, even if Ward had made it, was not inconsistent with any of
Ward’s trial testimony. We think it obvious that the trial court’s decision not to
allow defense counsel to cross-examine Ward concerning the statement had no
prejudicial impact whatsoever. The error, if any, was harmless beyond a reasonable
doubt.
         {¶ 79} In this proposition, appellant also claims that the trial court abused
its discretion when it refused to admit into evidence the composite sketch of the
murder suspect during defense counsel’s cross-examination of Marvin Washington
and Shirley Cox. Defense counsel requested that the exhibit be admitted into
evidence at that time so that the composite sketch could be shown to the jury during




                                          35
                             SUPREME COURT OF OHIO




the cross-examination of these two witnesses. However, R.C. 2945.03 provides
that “[t]he judge of the trial court shall control all proceedings during a criminal
trial, and shall limit the introduction of evidence and the argument of counsel to
relevant and material matters with a view to expeditious and effective ascertainment
of the truth regarding the matters in issue.” Here, the trial court admitted the
composite sketch into evidence at the close of the state’s case-in-chief and the jury
considered it in deliberations. The trial court’s decision not to admit the exhibit at
an earlier time does not constitute an abuse of discretion.
       {¶ 80} Accordingly, appellant’s thirteenth proposition of law is not
persuasive.
                                         XV
                            Proposition of Law No. XIV
       {¶ 81} In his fourteenth proposition of law, appellant contends that the trial
court gave unnecessary instructions to the jury in the guilt phase on the law of
aiding and abetting and on the subject of prior calculation and design. Appellant
argues that the jury was instructed that “he could be found guilty as an accomplice
to capital murder,” and that “he could be death eligible on the two felony murder
specifications as either the principal offender, or if not the principal offender, by
prior calculation and design.” We reject appellant’s arguments for two reasons.
First, appellant’s arguments have been waived. Second, on the merits, appellant
has failed to demonstrate plain error.
       {¶ 82} With respect to the trial court’s instruction to the jury on the law of
accomplice liability, we find that the record does not support appellant’s
contentions. The prosecution never wavered from its theory that appellant was the
principal offender in the aggravated murder of Jones and, more importantly, neither
the state nor appellant proffered any evidence suggesting that someone other than
appellant was the principal offender. The jury obviously did not find appellant
guilty of the aggravated murder of Jones on the theory of accomplice liability, since
                                    January Term, 1999




the evidence at trial clearly demonstrated that appellant was the principal offender
in the aggravated murder. Moreover, having reviewed the trial court’s instructions
as a whole, we find that the trial court did not specifically instruct the jury on
accomplice liability in connection with the aggravated murder charge.
Furthermore, contrary to appellant’s assertion, this instruction was not
unwarranted, since the evidence tended to show that appellant, while the principal
offender in the aggravated robbery of Welborn, was an aider and abetter in the
aggravated robbery of Jones. Accordingly, we find no plain error with respect to
the trial court’s instruction to the jury on aiding and abetting.
        {¶ 83} As to appellant’s arguments concerning the R.C. 2929.04(A)(7)
specifications, we also find no error, plain or otherwise. It is not error for a trial
court to “instruct the jury on prior calculation and design and principal offender
status disjunctively in the same specification, as the court did here.” Burke, 

73 Ohio St.3d at 405

, 653 N.E.2d at 248. Appellant does argue, however, that the trial
court should have instructed the jury on the need to be unanimous concerning which
of the two alternatives (principal offender or prior calculation and design) was
applicable. However, appellant never specifically requested such an instruction.
Additionally, given the evidence at trial, which showed either that appellant was
the principal offender in the aggravated murder or that he had committed no offense
at all, it is clear to us that the jury unanimously determined that appellant was the
principal offender in the aggravated murder of Jones. See, also, our discussion in
Part II, supra. Therefore, the lack of instruction on the need for unanimity does not
rise to the level of plain error.
                                           XVI
                              Proposition of Law No. XV
        {¶ 84} In his fifteenth proposition of law, appellant questions other aspects
of the trial court’s guilt phase jury instructions. However, we have reviewed the
jury instructions as a whole and find appellant’s objections not persuasive.




                                            37
                             SUPREME COURT OF OHIO




                                        XVII
                            Proposition of Law No. XVI
       {¶ 85} The trial court did not abuse its discretion by failing to give the
requested “Telfaire instruction” concerning identification testimony. See United
States v. Telfaire (C.A.D.C.1972), 

469 F.2d 552, 558-559

. The use of such an
instruction is a matter committed to the sound discretion of the trial court. State v.
Guster (1981), 

66 Ohio St.2d 266, 272

, 

20 O.O.3d 249, 252-253

, 

421 N.E.2d 157, 161

. Here, the trial court gave a modified version of the Telfaire instruction that,
in our judgment, was more than adequate on the facts of this case.
                                       XVIII
               Propositions of Law Nos. XVII, XIX, XX, and XXV
       {¶ 86} Appellant acknowledges that these propositions of law (Nos. XVII,
XIX, XX, and XXV) raise issues that we have previously addressed and rejected in
a number of our prior cases.       Therefore, appellant concedes that these four
propositions of law may be summarily rejected on authority of State v. Poindexter
(1988), 

36 Ohio St.3d 1

, 

520 N.E.2d 568

, syllabus, assuming that our position on
the issues has not changed.      Our position on these issues has not changed.
Therefore, we summarily reject these four propositions of law.
                                        XIX
                           Proposition of Law No. XVIII
       {¶ 87} The arguments raised in appellant’s eighteenth proposition of law
are not supported by a fair and impartial review of the record. Nothing in the trial
court’s penalty phase instructions or in its response to the jury’s questions supports
appellant’s assertion that “[t]hese instructions, when taken as whole, created a
‘reasonable likelihood’ that Davel Chinn’s jury was precluded from considering all
of his nonstatutory [i.e., R.C. 2929.04(B)(7)] mitigation in violation of the Eighth
and Fourteenth Amendments.”
                                         XX
                                January Term, 1999




                           Proposition of Law No. XXI
       {¶ 88} Appellant’s twenty-first proposition of law concerns alleged victim-
impact evidence that was heard by the trial judge after the jury was discharged but
immediately before the trial court pronounced sentence on all of the crimes
appellant was found guilty of committing. Appellant claims that the evidence
included an expression of opinion by Brian Jones’s mother that appellant should be
sentenced to death. However, Mrs. Jones never specifically stated her opinion as
to the appropriate punishment. Rather, she stated that “now we feel that the time
has come for [appellant] to be punished according to the law of Ohio.” Appellant
also complains that Mrs. Jones stated or implied that appellant was incapable of
rehabilitation. However, the record does not fully support appellant’s claims in this
regard. Moreover, and in any event, there is absolutely nothing in the record to
suggest that the trial court was influenced by irrelevant factors in sentencing
appellant for the capital crime. Therefore, we find no reversible error here.




                                         39
                              SUPREME COURT OF OHIO




                                         XXI
                            Proposition of Law No. XXII
        {¶ 89} In his twenty-second proposition of law, appellant argues that he was
deprived of the effective assistance of counsel during the trial court proceedings.
Several of appellant’s arguments under this proposition of law have been waived.
Nevertheless, we have considered all instances of alleged ineffectiveness of trial
counsel. We find that appellant has failed to satisfy his burden of establishing
ineffective assistance under the standards set forth in Strickland v. Washington
(1984), 

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

.
                                         XXII
                           Proposition of Law No. XXIII
        {¶ 90} Appellant contends that the cumulative effect of errors at the trial
court level deprived him of a fair trial and a reliable sentencing determination. We
reject appellant’s contention in this regard. Appellant received a fair trial and a fair
and reliable sentencing determination.
                                         XXIII
                           Proposition of Law No. XXIV
        {¶ 91} Appellant also argues that he was deprived of the effective assistance
of counsel in the court of appeals. We find no merit to appellant’s contentions. The
fact that appellate counsel was able to persuade the court of appeals to reverse the
death sentence on two separate occasions over the course of the years is a testament
to the effectiveness of appellant’s counsel. None of the instances of alleged
ineffective assistance of appellate counsel compels reversal here.
                                        XXIV
        {¶ 92} Having considered appellant’s propositions of law, we must now
independently review the death sentence for appropriateness (also raised in
appellant’s Proposition of Law No. II) and proportionality (also raised in
appellant’s Proposition of Law No. III).         We find that all specifications of
                                 January Term, 1999




aggravating circumstances of which appellant was found guilty (two under R.C.
2929.04[A][7] and one under [A][3]) were proven beyond a reasonable doubt.
       {¶ 93} We specifically reject appellant’s Proposition of Law No. II, wherein
appellant argues that our independent assessment of the evidence should lead us to
conclude that the aggravating circumstances were not proved beyond a reasonable
doubt. Washington’s testimony clearly chronicled the crimes and the conduct in
which he and appellant engaged. His testimony was compelling proof of the
existence of the R.C. 2929.04(A)(3) specification of the aggravating circumstance
that appellant killed Jones to escape detection, apprehension, trial, or punishment
for another offense. Appellant told Washington after the murder that he shot Jones
“because    he   didn’t   have     enough     money   and    he   could     identify
* * * us to the police.” Washington’s trial testimony also fully supported the two
R.C. 2929.04(A)(7) specifications of aggravating circumstances.           Moreover,
Christopher Ward identified appellant as the person named “Tony” he had seen
with Washington shortly after the murder. Gary Welborn, the surviving victim of
the robbery, identified Washington as one of the two perpetrators. Welborn
testified that the armed assailant who was with Washington “said we’d better have
at least a hundred dollars between us or he’d kill us both.” Shirley Cox identified
“Tony Chinn” as the man police were looking for after she saw the composite
sketch printed in the newspaper—the composite that was created as a result of
Washington’s description of the gunman. Both Washington and Ward were able to
positively identify appellant in a photo array, at a lineup, and at trial. Although
Washington had waited until immediately after the lineup to actually inform police
that appellant was in the lineup, his reasons for so doing were understandable and
do not detract from his identification of appellant. With respect to appellant’s
defense, none of the defense witnesses directly contradicted the state’s evidence,
except for appellant’s mother.       Overall, the alibi defense was weak and
unpersuasive. The evidence in this case compellingly supports a finding of guilt on




                                         41
                              SUPREME COURT OF OHIO




each of the three specifications of aggravating circumstances. We are convinced
of appellant’s guilt beyond a reasonable doubt.
        {¶ 94} For purposes of our independent review, however, we will consider
only the single (merged) aggravating circumstance that was considered by the trial
court on remand from the court of appeals and that was considered by the court of
appeals in its own independent review of appellant’s death sentence. Thus, we
consider the R.C. 2929.04(A)(7) specification of the aggravating circumstance
premised on aggravated robbery—i.e., that appellant shot and killed Brian Jones
during the course of an aggravated robbery—which is clearly shown on the record
before us.
        {¶ 95} The nature and circumstances of the offense reveal nothing of any
mitigating value. During the penalty phase, appellant presented no evidence
regarding the mitigating factors set forth in R.C. 2929.04(B)(1) through (B)(6), and
our review of the record reveals that these factors are inapplicable here.
        {¶ 96} In mitigation, appellant presented evidence concerning his history,
character, and family background. Appellant’s father was murdered in 1972.
Appellant’s grandmother testified that appellant, as a child, was “[v]ery
emotionally upset” over his father’s death. She also testified that appellant is
deeply devoted to his nieces and nephews and to his entire family. Appellant’s
brother and sister testified that appellant helped them spiritually and that he is close
to his family and helpful to family members. Appellant’s mother, Anna Lee,
testified that appellant was born in 1957. Lee testified that appellant, during
childhood, had no disciplinary problems and was a “[v]ery sensitive” and “active
child.” According to Lee, appellant became even more sensitive following his
father’s death. During childhood, appellant read from the Bible, believed in God,
and was devoted to his family members. Lee testified that appellant had enrolled
in Cambridge Technical Institute to better his life through education. Appellant
gave an unsworn statement in which he proclaimed that he was innocent. Appellant
                                 January Term, 1999




stated that he had been involved in sports and certain civic organizations and
activities during his childhood. He expressed his belief in God, his devotion to
family, and his bitterness over his father’s death. Appellant claimed to be “a
compassionate and concerned human being.” He also indicated that he had enrolled
in Cambridge Technical Institute to better himself and that he was proud of his
accomplishments in school.
        {¶ 97} Upon a review of the evidence in mitigation, we find that the
evidence concerning appellant’s history, character, and background is entitled to
some, but very little, weight in mitigation. Specifically, we find that appellant’s
support and devotion for his family, his helpfulness to others, and his efforts toward
education are entitled to some, but very minimal, weight in mitigation. Appellant’s
religious beliefs and his bitterness over his father’s death are also entitled to little
or no weight in mitigation. Appellant’s father died more than a decade before
appellant committed this senseless and tragic murder of Brian Jones, an innocent
victim who offered absolutely no resistance in the aggravated robbery. Further,
appellant’s belief in God obviously did not dissuade him from robbing and killing.
Additionally, appellant’s assertions of innocence—a matter pertaining to the issue
of “residual doubt”—are entitled to no weight in mitigation. Residual doubt is
irrelevant to the issue of whether appellant should be sentenced to death, State v.
McGuire (1997), 

80 Ohio St.3d 390

, 

686 N.E.2d 1112

, syllabus, and we have
absolutely no doubt of appellant’s guilt.
        {¶ 98} Weighing the evidence presented in mitigation against the single
R.C. 2929.04(A)(7) aggravating circumstance, we find that the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt. Indeed,
the mitigating factors in this case absolutely pale in significance to the aggravating
circumstance considered here.
        {¶ 99} As our final task, we have undertaken a comparison of the sentence
imposed in this case to those in which we have previously imposed the death




                                            43
                             SUPREME COURT OF OHIO




sentence. Appellant’s death sentence is neither excessive nor disproportionate in
comparison to the penalty imposed in similar cases. See, e.g., State v. Raglin
(1998), 

83 Ohio St.3d 253

, 

699 N.E.2d 482

, which involved far more mitigating
evidence than was presented in the case at bar. We reject appellant’s Proposition
of Law No. III, wherein appellant claims that his case is far different from cases in
which we have previously imposed the death penalty for aggravated (felony)
murder committed during the course of an aggravated robbery.             Appellant’s
attempts to distinguish his crime from the crimes of others on the basis that he shot
his victim only once and did not shoot the victim in the head, neck, chest, or other
vital part of the body are completely unavailing. Jones died as a result of the single
shot appellant fired into his body during the course of an aggravated robbery. The
shot was fired at point-blank range, and appellant specifically intended to cause the
death of the victim. He pressed the muzzle of the revolver against the victim’s
clothing and pulled the trigger, causing the projectile to rip into the upper portion
of Jones’s arm and into his chest, where the projectile perforated the main
pulmonary artery and came to rest near the base of Jones’s heart. The single shot
fired by appellant was just as effective in ending Jones’s life as the shot or shots
that have been fired by other death-row inmates whose sentences we have affirmed
for having killed their victims during the course of an aggravated robbery. The fact
that appellant shot Jones only once does not make appellant’s death sentence either
excessive or disproportionate in comparison to those cases in which we have
previously affirmed the death penalty.
       {¶ 100} Accordingly, for all of the foregoing reasons, we affirm the
judgment of the court of appeals and uphold the sentence of death.
                                                                 Judgment affirmed.
       MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                                    APPENDIX
                                January Term, 1999




         {¶ 101} “Proposition of Law No. I: When a jury is allowed to consider
nonstatutory aggravating circumstances because it receives inadequate guidance
through a lack of instruction, or erroneous instruction during the penalty phase, and
duplicative aggravating circumstances are not merged, the resulting death sentence
is unreliable and cannot stand. U.S. Const. Amend. VIII and XIV.
         {¶ 102} “Proposition of Law No. II: Where the aggravating circumstances
are not proved beyond a reasonable doubt, the death penalty in [sic] not appropriate.
         {¶ 103} “Proposition of Law No. III: The death sentence in appellant
Chinn’s case is excessive and disproportionate to sentences imposed in similar
cases.
         {¶ 104} “Proposition of Law No. IV: The cumulative effect of prosecutorial
misconduct throughout Chinn’s trial violated his rights under the Sixth, Eighth and
Fourteenth Amendments of the United States Constitution.
         {¶ 105} “Proposition of Law No. V: The accused’s rights to a jury trial, to
due process, and to a reliable capital sentencing hearing are denied when the trial
court fails to define an essential element of an aggravating circumstance, that makes
the accused death eligible. U.S. Const. Amend. VI, VIII, XIV.
         {¶ 106} “Proposition of Law No. VI: A trial court abuses its discretion
when it allows the introduction of irrelevant and prejudicial evidence and further
allows inadmissible hearsay to be introduced in violation of the Sixth and
Fourteenth Amendments to the United States Constitution.
         {¶ 107} “Proposition of Law No. VII: A resentencing procedure in a capital
case violates due process and infringes the defendant’s right against cruel and
unusual punishment when, the defendant is resentenced to death without a
recommendation by the trial jury that convicted him, and the resentencing court
excludes relevant mitigation, and the resentencing court fails either to
independently weigh the mitigation and aggravation or state the reasons why the
aggravation outweighs the mitigation. U.S. Const. Amend. VIII and XIV.




                                         45
                              SUPREME COURT OF OHIO




        {¶ 108} “Proposition of Law No. VIII: Insufficient evidence to sustain a
conviction of aggravated murder is presented where the state relies entirely on the
testimony of a co-defendant whose testimony is suspect, and reliable, independent
evidence rebuts this testimony. U.S. Const. Amend. XIV.
        {¶ 109} “Proposition of Law No. IX:            Ohio Revised Code Ann. §
2929.03(D)(1) (Anderson 1996) renders R.C. §§ 2929.04(A) and (B)
unconstitutionally vague. U.S. Const. Amend. VIII, XIV.
        {¶ 110} “Proposition of Law No. X: Where a jury, during its deliberations,
communicates with the trial court, and the court, out of the presence of the parties,
provides erroneous, substantive instructions to the jury, a new trial is warranted.
(Bostic v. Connor [1988], 

37 Ohio St.3d 144

 [

524 N.E.2d 881

], approved and
followed.)
        {¶ 111} “Proposition of Law No. XI: A capital defendant’s conviction and
death sentence must be overturned where he was denied his right to a fair and
impartial jury because the trial court unfairly limited his questioning, refused to
conduct individual sequestered voir dire, and failed to excuse jurors who could not
be fair and impartial. U.S. Const. Amends. VI, VIII, and XIV.
        {¶ 112} “Proposition of Law No. XII: In order for a capital defendant to be
assured equal protection and due process of law, the trial court must see that the
state complies with all discovery rules and turns over exculpatory material before
trial. Where there are indications that the state is not complying with these rules,
the prosecutor’s file must be sealed for appellate review. U.S. Const. Amend. XIV.
        {¶ 113} “Proposition of Law No. XIII: The accused’s rights to due process,
to a fair trial, and to confrontation are denied when the trial court denies the accused
an opportunity to challenge the identification testimony of the state’s witnesses.
U.S. Const. Amend. VI and XIV.
        {¶ 114} “Proposition of Law No. XIV: A jury should not be instructed that
the defendant may be found guilty as an accomplice to aggravated murder when the
                                 January Term, 1999




evidence adduced at trial does not reasonably support that instruction. Whenever
the jury is charged that a capital defendant may be found guilty as the principal
offender, or as an accomplice acting with prior calculation and design, the
defendant is entitled to [a] unanimous verdict on one of those alternative theories.
U.S. Const. Amend. VI, VIII and XIV.
        {¶ 115} “Proposition of Law No. XV: A jury instruction that shifts the
burden of proof on the mens rea element of any offense to the accused, or reduces
the state’s burden of proof, violates the Due Process Clause. U.S. Const. Amend.
XIV.
        {¶ 116} “Proposition of Law No. XVI: The accused is denied due process
and a fair trial when the trial court fails to give a jury instruction that informs the
jury of the problems with identification testimony. U.S. Const. Amend. XIV.
        {¶ 117} “Proposition of Law No. XVII: The accused’s right to due process
under the Fourteenth Amendment to the United States Constitution is violated when
the state is permitted to convict upon a standard of proof below proof beyond a
reasonable doubt.
        {¶ 118} “Proposition of Law No. XVIII: Constitutional error results when
the trial court’s penalty phase instructions keep the jury from considering
nonstatutory mitigating factors. U.S. Const. Amend. VIII, XIV.
        {¶ 119} “Proposition of Law No. XIX: A capital defendant’s right to a
reliable and nonarbitrary death sentence under the Eighth and Fourteenth
Amendments is violated when the sentencing jury’s responsibility for its verdict is
attenuated by the trial court’s instructions.
        {¶ 120} “Proposition of Law [No.] XX: A capital defendant’s right to
reliable sentencing under the Eighth and Fourteenth Amendments to the United
States Constitution is violated when the trial court refuses to instruct the jury that it
may consider mercy in its penalty phase deliberations.




                                           47
                             SUPREME COURT OF OHIO




       {¶ 121} “Proposition of Law [No.] XXI: It is constitutional error for the
trial court to consider victim impact evidence in capital sentencin[g] in the form of
an opinion by a victim’s family member about the defendant’s inability to be
rehabilitated and about the proper punishment for the defendant. U.S. Const.
Amend. VIII and XIV.
       {¶ 122} “Proposition of Law [No.] XXII:          The accused’s right to the
effective assistance of appointed counsel is denied when counsel’s errors and
omissions undermine confidence in the result of the trial. U.S. Const. Amend. VI
and XIV.
       {¶ 123} “Proposition of Law No. XXIII: The defendant is entitled to a new
trial when the cumulative effect of trial error renders the conviction unreliable, and
when the evidence against the defendant is not overwhelming. U.S. Const. Amend.
VIII, XIV.
       {¶ 124} “Proposition of Law [No.] XXIV: The appellant’s right to due
process under the Fourteenth Amendment to the United States Constitution is
violated by the ineffective assistance of counsel in the court of appeals.
       {¶ 125} “Proposition of Law [No.] XXV: Ohio’s death penalty laws are
unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution establish the requirements for a valid death penalty
scheme. Ohio Rev.Code Ann. Sections 2903.01, 2929.02, 2929.021, 2929.022,
2929.023, 2929.03, 2929.04 and 2929.05 (Anderson 1996). Ohio’s death penalty
statute does not meet the prescribed constitutional requirements and is
unconstitutional on its face and as applied to appellant Chinn.”