COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 64270 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION WILEY DAVIS, JR. : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-275129 JUDGMENT: Affirmed; Solitary Confinement Sentence is Vacated. DATE OF JOURNALIZATION: _________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue FRANK GASPER, ESQ. Cleveland, Ohio 44103-1125 Assistant Prosecuting Attorney The Justice Center JAMES DRAPER, ESQ., Cuyahoga 1200 Ontario Street County Public Defender Cleveland, Ohio 44113 MARGARET O. ISQUICK, ESQ. Assistant Public Defender The Marion Bldg., Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 HARPER, J.: Appellant, Wiley Davis, Jr., appeals from his conviction of aggravated murder in violation of R.C. 2903.01 with specifications, kidnapping in violation of R.C. 2905.01 with specifications, aggravated robbery in violation of R.C. 2911.01 with specifications, and a sentence of death. For the reasons set forth below, we affirm appellant's death sentence, but vacate the trial court's sentence of solitary confinement. I. Mattie Baker testified that she was employed by Blue Cross/Blue Shield in November of 1991. The office where she worked is located on East 9th Street and Prospect Avenue in Cleveland, Ohio. On November 26, 1991 at about 8:30 a.m., she observed a man she later identified as appellant walking around the parking lot located on Eagle Avenue by Bolivar and East 9th Street in the downtown area of Cleveland. She recognized appellant, whom she claimed she knew as an employee of Salvee's Restaurant. She parked her car and walked to the coin box to pay the parking fees and forgot her parking space number. As she walked back to her car, she noticed a woman sitting in the passenger seat of a gray Toyota with Texas license plates. The woman appeared terrified. She informed the parking lot attendant of her observation and another attendant in the parking lot across the street in an attempt to get help. She also told the security guard at the Blue Cross/Blue Shield office. When she returned from lunch on the same day, she was interviewed by Detective Leo Allen of the Cleveland Police Department. She told Detective Allen what she observed that morning. She told the detective that she thought she knew the suspect. She accompanied the detective to the parking lot and later to the police department garage to view the suspected gray Toyota. On November 27, 1991, she identified appellant in a six-man line-up. She also admitted that she had seen appellant's picture on television the night before she viewed the line-up. Appellant was seen earlier by Diane Tomc, who also was an employee of Blue Cross/Blue Shield, at about 7:45 a.m. around the area of the parking lot. She also identified appellant in a line-up. Gwendolyn Brice testified that her grandmother alerted her to a car that was stopped at a stop sign for a long period of time at about 9:00 a.m. on November 26, 1991. The stop sign was located at East 112th Street and Revere Avenue. She looked out the window and saw a black man and a white woman sitting in a gray car with Texas license plates. Ms. Brice saw the woman in the car waving her hands. She was seated on the passenger side. She then heard a pop and saw glass shatter from the passenger window of the car and the woman's head drop down. The black man in the driver seat of the car drove the car away toward East 109th and Revere Avenue. Ms. Brice told her aunt, Marjorie Johnson, who had just came into the house about the incident. Ms. Johnson called the police and described the car that she observed as she was pulling into the driveway. She saw a black man and a white woman with her head hanging out the window in a gray car with Texas license plates. The man made a fast right turn and proceeded down to East 109th Street and Revere Avenue. Nancy Brown testified that on November 26, 1991 at about 8:55 a.m., she was awaiting the arrival of her son's school bus on East 106th Street and Eliot Avenue. She noticed a black man in a gray car with out-of-town license plates drive past her. She testified that the man glanced at her. The man repeatedly slammed the passenger door of the car with the window down. After Ms. Brown's son told her that he saw someone's feet in the street, she exited her car and discovered the completely nude body of a white woman. She ran to her baby-sitter's house where she called 911. Ms. Brown later talked with Detective Allen. She identified appellant in a line-up as the man she saw driving the gray car. Jerry Kleindienst testified that he was appellant's employer. On November 26, 1991 at approximately 8:45 a.m., he called appellant's house to inquire why he had not shown up for work. Appellant's wife returned his call between 9:15 and 9:30 a.m. and informed him that appellant would not be coming to work. Officer Thomas Dillon testified that he was dispatched to East 106th Street and Eliot Avenue at about 9:00 a.m. on November 26, 1991. When he arrived, the victim, Amy Perkins, was laying in the street with a gunshot wound to the head. EMS arrived at the scene shortly thereafter and the victim was rushed to St. Luke's Hospital. Officer Dillon went to East 102nd and Manor Avenue where the victim's car was discovered. He saw fresh blood in the car and women's clothing. Officer Sampson, Dillon's partner, recovered a .32 caliber bullet casing five to ten feet from the victim's car. Dr. Srienivasa Murthy, Cuyahoga County Deputy Coroner, testified that the victim died of a gunshot wound to the head with perforations of the skull and brain. Linda Luke testified that she is a trace evidence examiner in the coroner's office. She examined the victim's blood samples, oral swabs, vaginal swabs, and rectal swabs. She did not find any evidence of human semen. She testified that both appellant and the victim had type "O" blood. She could not determine to whom the blood stains found on the victim's and appellant's clothing belonged. She did not find significant hairs or fibers in the car. She admitted on cross-examination that there was no scientific evidence linking appellant to the victim. The blood found in the car belonged to the victim. Alonzo Herring testified that he was staying at the home of 1 his girlfriend, Annette Bradley located at 3110 East 99th Street on November 26, 1991. At approximately 9:00 a.m., he was wakened by the arrival of appellant who made a phone call and asked to borrow clothing from him. Appellant was wearing a gray sweat suit with blood stains on the right side. He was carrying a beige jacket. Appellant explained to him that the blood stains 1 Annette Bradley is appellant's sister. on his sweat suit were a result of an altercation he was involved in the previous day when his gun accidentally discharged. Appellant handed Herring a gun and asked him to keep it for him. He gave appellant blue pants and a white sweatshirt. Appellant then washed the sweat suit and jacket and hung them up in the bathroom. He put the gun in the closet. At approximately 9:40 a.m., appellant's mother came to the house. Appellant left with his mother. Mr. Herring testified that his girlfriend received a phone call from her sister Dorothy and informed her that the police were coming to the house. Mr. Herring took appellant's clothes and the gun and put them in the trunk of his car and left. Appellant called Mr. Herring the following day and asked him not to turn the gun and clothes over to the police. Mr. Herring consulted an attorney and his father and turned over the gun and clothes to the police on November 29, 1991. On cross-examination, Mr. Herring admitted that he had an altercation with appellant in 1986. He denied that he turned over the evidence because he harbored ill feelings toward appellant. He testified that 3110 East 99th Street where he was staying on November 26, 1991 was about 300 yards from East 102nd and Manor Avenue where the victim's car was discovered. Detective Thomas Lucey of the Cleveland Police Department testified that he examined the .32 caliber semi-automatic weapon turned in by Mr. Herring. He test fired the weapon with the ammunition found in the gun, and compared it to the shell casing found near the victim's vehicle. He concluded they were from the same weapon. Detective Leo Allen of the Cleveland Police Department testified that he arrested appellant after conducting searches at various houses. During the search of appellant's house, Allen recovered a box of .32-caliber automatic bullets, several loose .32-caliber automatic bullets, and a salem bag. David Perkins testified that he was the victim's husband. His wife always wore a custom made engagement wedding ring valued at approximately $19,000 and a woman's Rolex watch. He testified that the jewelry has been missing since November 26, 1991. II. Appellant assigns the following errors for our review: "ASSIGNMENT OF ERROR NO. I: "THE TRIAL COURT ERRED WHEN IT DENIED WILEY DAVIS, JR.'S MOTION FOR A CHANGE OF VENUE DUE TO EXTENSIVE AND PREJUDICIAL PRETRIAL PUBLICITY, THEREBY DENYING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL. "ASSIGNMENT OF ERROR II: "THE TRIAL [sic] ERRED IN FAILING TO SUPPRESS IDENTIFICATION TESTIMONY ARISING FROM AN UNDULY SUGGESTIVE LINEUP, THEREBY DENYING THE APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. "ASSIGNMENT OF ERROR III: "THE EVIDENCE IS INSUFFICIENT TO SUSTAIN OF [sic] CAPITAL SPECIFICATION THREE, ATTEMPTED RAPE. "ASSIGNMENT OF ERROR IV: "EVIDENCE IS INSUFFICIENT TO UPHOLD THE CONVICTION OF AGGRAVATED ROBBERY AND THE CORRESPONDING CAPITAL SPECIFICATION. "ASSIGNMENT OF ERROR V: "THE TRIAL COURT ERRED BY ALLOWING THE JURY TO REACH A VERDICT WITHOUT AGREEING UNANIMOUSLY ON EACH AND EVERY ELEMENT OF THE CAPITAL SPECIFICATION. "ASSIGNMENT OF ERROR VI: "THE TRIAL COURT ERRED BY ALLOWING THE STATE TO READMIT EVIDENCE THAT WAS PROPER FOR THE GUILT DETERMINATION PHASE OF TRIAL INTO THE PENALTY PHASE OF TRIAL. "ASSIGNMENT OF ERROR VII: "PROSECUTORIAL MISCONDUCT DURING THE PENALTY PHASE OF THE TRIAL DEPRIVED THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL SENTENCING HEARING. "ASSIGNMENT OF ERROR VIII: "THE TRIAL COURT MAY NOT INSTRUCT THE JURY THAT IT'S [sic] DECISION IN THE PENALTY PHASE IS A RECOMMENDATION. THIS INSTRUCTION IS A VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE OHIO CONSTITUTION. "ASSIGNMENT OF ERROR IX: "THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY THAT THE SPECIFICATIONS OF THE INDICTMENT WERE IN FACT THE AGGRAVATING CIRCUMSTANCES. "ASSIGNMENT OF ERROR X: "THE TRIAL COURT ERRED BY REFUSING TO PROVIDE THE JURY WITH A RESIDUAL DOUBT INSTRUCTION DURING THE PENALTY PHASE OF THE APPELLANT'S TRIAL. "ASSIGNMENT OF ERROR XI: "THE TRIAL JUDGE ERRED BY PROVIDING AN 'ACQUITTAL- FIRST' INSTRUCTION TO THE JURY DURING THE PENALTY PHASE OF THE APPELLANT'S TRIAL. "ASSIGNMENT OF ERROR XII: "THE TRIAL COURT'S ERRONEOUS PENALTY PHASE INSTRUCTIONS DEPRIVED THE APPELLANT A FAIR AND RELIABLE DETERMINATION OF HIS SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE OHIO CONSTITUTION. "ASSIGNMENT OF ERROR XIII: "INEFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT BOTH PHASES OF TRIAL DEPRIVED THE APPELLANT HIS CONSTITUTIONAL PROTECTIONS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9 AND 10 OF THE OHIO CONSTITUTION. "ASSIGNMENT OF ERROR XIV: "WILEY DAVIS, JR.'S DEATH SENTENCE HAS DENIED HIM DUE PROCESS UNDER THE LAW AS THE TRIAL COURT ERRED IN ADOPTING THE RECOMMENDATION OF THE JURY AND IN FINDING THAT THE AGGRAVATING CIRCUMSTANCES OUTWEIGHED THE MITIGATING FACTORS. "ASSIGNMENT OF ERROR XV: "THE TRIAL COURT'S SENTENCE DENIED MR. DAVIS HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT ORDERED SOLITARY CONFINEMENT FOR MR. DAVIS EACH TWENTY-SIXTH DAY OF THE MONTH UNTIL HIS DEATH. "ASSIGNMENTS OF ERROR XVI: "THE TRIAL COURT ERRED WHEN IT CONVICTED THE APPELLANT OF DEATH TWO TIMES FOR A SINGLE HOMICIDE, IN VIOLATION OF R.C. 2941.25(A) AND IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE CONTAINED IN SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION. "ASSIGNMENT OF ERROR XVII: "THE OHIO CAPITAL SENTENCING SCHEME IS UNCONSTI- TUTIONAL." Appellant argues in his first assignment that the trial court erred by denying his motion for a change of venue. He argues that extensive pretrial publicity of the case and the publication of his criminal record, made it impossible for him to get a fair trial in Cuyahoga County. Appellant opined that his case received such prejudicial publicity because the victim's husband is "a popular Cleveland radio personality." The United States Supreme Court held in Irvin v. Dowd (1961), 366 U.S. 717, that jurors are expected to be familiar with the facts and issues of a case. Jurors are only required to lay aside their impressions or opinions and render a verdict based on evidence presented in court. The Irvin court, however, concluded that an accused cannot have a fair trial where a number of jurors expressed, on voir dire, their opinion as to defendant's guilt of the crime which had had extensive newspaper, radio and television coverage preceding trial. Any juror's preconceived opinion of guilt which is attributable to extensive media coverage of the case or any external factor not based entirely on the evidence presented at trial is a clear violation of constitutional standards of impartiality and a decision from such a poisoned mind is reversible. In the state of Ohio, the decision to grant a motion for a change of venue or a sua sponte motion to change venue is entirely within the discretion of the trial court. An appellate court when reviewing a trial court's denial of a motion to change venue is limited to a determination whether the court abused its discretion. Where no abuse of discretion is found, the decision stands. See State v. Maurer (1984), 15 Ohio St.3d 239, 250; State v. Fairbanks (1972), 32 Ohio St.2d 34, 37. Abuse of discretion in Ohio has been held to be more than an error of law or of judgment. A party claiming that a court abused its discretion must show that the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217; State v. Adams (1980), 62 Ohio St.2d 151, 157- 158; Rohde v. Farmer (1970), 23 Ohio St.2d 82, 87. Ohio courts are well aware of the constitutional protection of all persons accused of a crime that no matter how heinous the crime might be, the accused walks into the courtroom as an innocent person and the court has an obligation to protect his right to receive a fair trial and verdict of an impartial jury at all cost. The court, therefore, should not hesitate to change venue when it views from the totality of the circumstances that the right of fair trial is in jeopardy. The Ohio Supreme Court held recently in State v. Mills (1992), 62 Ohio St.3d 357, 364, that "A careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from locality." Accord State v. Bayless (1976), 48 Ohio St.2d 73; State v. Thompson (1987), 33 Ohio St.3d 1, 5. Thus, before an appellate court reverses the trial court's decision to deny a change of venue, it must examine the record to ascertain the efforts made by the trial court to safeguard the accused's right to a fair trial. In the instant case, it is unchallenged that appellant was subjected to relentless pretrial publicity. In that situation, the trial court is duty bound to take steps to protect the trial from the potential distraction from the "story tellers of the free world who must inform the people of the gory details of how a murder was committed." Under the circumstances of this case, however, we think that the trial court did not abuse its discretion by denying appellant's motion to change venue. The court delayed the case for more than five months in an attempt to abate the publicity. State v. Landrum (1990), 53 Ohio St.3d 107. The trial court conducted an extensive voir dire of the jurors before denying appellant's motion and the jurors indicated that they would be fair and impartial and would base their verdict on the evidence that is presented at trial. State v. Booher (1988), 54 Ohio App.3d 1; State v. Lewis (1993), 85 Ohio App.3d 29. We find no error. See State v. Spirko (1991), 59 Ohio St.3d 1; State v. Montgomery (1991), 61 Ohio St.3d 410. Our failure to find error in the trial court does diminish the concerns about the media, its impact on a fair trial and its responsibility in balancing the public's right to know with the party's right to a fair trial. Ohio courts must sanction lawyers who try their cases in the media even if it leads to the discharge of an accused. The protections afforded to all citizens by the constitution are too fundamental and costly to be subjected to cheap albeit profitable ratings. In the instant case, we fail to find any misconduct on the part of the prosecutor which could lead to a trial by the media of the case. We recognize potential prejudice in releasing appellant's criminal records to the media, but we do not think that police detectives have a statutory or constitutional right to withhold from the press public records. It would be different if a prosecutor or a detective makes a comment to the press about an accused's criminal record while he is on trial. Appellant's first assignment is accordingly overruled. III. Appellant in his second assignment argues that his identification was tainted because it was unduly suggestive. Appellant contends that the lineups were too suggestive to be reliable. He charges that the discrepancies between himself and other black males in the lineups concerning hairstyles, clothing, and their ages resulted in unreliable identification testimony. The law is settled that unreliable identification testimony is excludable under the due process standards of the United States Constitution. Where, under the totality of the circumstances, a confrontation is unnecessarily suggestive and conducive to irreparable misidentification, a due process violation is articulated. Stovall v. Denno (1967), 388 U.S. 293, 302. No due process violation will be found, however, where an identification does not stem from an impermissibly suggestive confrontation, but is instead the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U.S. 1, 5. In State v. Moody (1978), 55 Ohio St.2d 64, 67, the Supreme Court held that: "'Although the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the subsequent in-court identification. See State v. Barker (1978), 53 Ohio St.2d 135, 142-143 [8 O.O.3d 213]. As noted in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 154, "*** reliability is the linchpin in determining the admissibility of identification testimony ***." The factors affecting reliability include "*** the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers (1972), 409 U.S. 188, 199. Thus, although the identification procedure is suggestive, so long as the challenged identification itself is reliable, it is admissible. Manson, supra, at 151.'" Thus, we apply the foregoing factors to ascertain whether the identification at issue violated defendant's right to due process or had an independent origin. Accord State v. Merrill (1984), 22 Ohio App.3d 119, 121-122. In the instant case, Ms. Baker testified that she knew appellant prior to the morning in question. She saw him that morning albeit for a minute on her way to work. We cannot hold that viewing a photograph of someone already known on television adds to what one already knows, or constitutes such an influence that a lineup identification is tainted. Ms. Baker, in addition to identifying appellant, also identified the victim's car and gave the police appellant's description. Nancy Brown testified that she saw appellant slam the car door. Appellant glanced at her and continued driving. All the witnesses were certain in their identification during voir dire by the defense counsel. They remained unshaken in their identification even when minor discrepancies were pointed out. The law remains that not every suggestive identification procedure is violative of due process. Where the totality of the circumstances reveal a reliable identification, the identification will pass constitutional muster even though the confrontation procedure was suggestive. In the instant case, Ms. Brown's testimony that at the time she saw appellant, he was not wearing anything on his head, and Ms. Baker's testimony that appellant was wearing a hood over his head are not necessarily contradictory nor render their testimony unreliable. Ms. Baker saw appellant before Ms. Brown. Appellant could have taken the hood off his head before he was seen by Ms. Brown. Appellant's arguments are not sufficiently persuasive to hold that his identification was unreliable. Appellant's second assignment is overruled. IV. In his third assignment appellant argues that the evidence is insufficient to convict him of attempted rape. The state countered by arguing that the evidence was sufficient. The state argues that the victim who went to work fully clothed was found completely nude and her clothes left in the car. The standard for testing whether the evidence is sufficient to uphold a conviction is to view the evidence in a light most favorable to the prosecution and determine whether any reasonable trier of fact could find the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307. Ohio follows the same standard handed down by the United States Supreme Court in Jackson v. Virginia. See State v. Jenks (1991), 61 Ohio St.3d 259; State v. Eley (1978), 56 Ohio St.2d 169. R.C. 2929.02(A) defines an attempt as follows: "No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense." In stating the law of attempt in State v. Jester (1987), 32 Ohio St.3d 147, 152, the Ohio Supreme Court held as follows: "In State v. Woods (1976), 48 Ohio St.2d 127, 2 O.O.3d 289, 357 N.E.2d 1059, this court, in paragraph one of the syllabus, held that '[a] "criminal attempt" is when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose." The issue then is whether appellant took a substantial step in the course of conduct planned to culminate in rape. In State v. Wood (1976), 48 Ohio St.2d 127, paragraph one of the syllabus, vacated on other grounds (1978), 438 U.S. 910, the court held that the actor's conduct must strongly corroborate his criminal purpose in order to constitute a substantial step. The court concluded that "* * * this standard does properly direct attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime. * * *" (Emphasis sic.) In State v. Heinish (1990), 50 Ohio St.3d 231, 239, the Ohio Supreme Court indicates that demonstrating a convincing purpose to commit a crime requires showing evidence of an overt act which by itself is sufficient to reach the threshold of a separate crime of attempt. In the instant case, Ms. Brice testified that she observed a four door, gray car, with Texas plates, with a white woman in the passenger seat. She noticed the woman waving her hands, and trying to push away the man in the car with her. She then heard a "pop" and saw glass shatter and the woman's head drop. We believe that the strength of Ms. Brice's testimony coupled with the finding of the victim completely in the nude with her clothes near her lifeless body is sufficient to draw an inference of attempted rape, satisfying Heinish and Jester, supra. See State v. Jenks, supra. Accordingly, we overrule appellant's third assignment. V. Appellant argues in his fourth assignment that the evidence does not support the conviction of aggravated robbery and the corresponding capital specification. We disagree. Appellant argues that the evidence supporting the state's claim of aggravated robbery was that "the defendant wore a Rolex watch on the day of the incident." We think appellant meant the victim wore a Rolex watch and not the defendant as he argues in his brief. If appellant did indeed mean that the defendant wore a Rolex watch on the day of the incident, then the evidence is conclusive because the victim's husband testified that the victim wore a Rolex watch and an engagement ring when she left for work. She was discovered without the watch and the ring. If, however, the defendant was not found with the watch, the fact remains that the victim's watch and ring were missing and the jury can draw an inference from the circumstances and conclude in light of our analysis in appellant's third assignment that robbery was involved. See State v. Jenks, supra. We find the evidence sufficient to sustain a conviction of aggravated robbery. Appellant's fourth assignment is overruled. VI. In his fifth assignment appellant argues that the trial court erred by allowing the jury to reach a verdict without agreeing unanimously on each and every element of the capital specification. Appellant contends that his conviction is invalid because the jury was not instructed that it could not split its findings as to the felonies involved. Appellant argues that the record does not reveal that the jury found beyond a reasonable doubt that he acted as the principal offender or find beyond a reasonable doubt that he acted with prior calculation and design. In Ohio, eligibility for the death penalty is dependent on the state proving beyond a reasonable doubt that the accused committed the murder while committing a burglary or rape or attempt thereof and also that the accused is either the principal offender or that the murder was premeditated. State v. Henderson (1988), 39 Ohio St.3d 24, 28, certiorari denied (1989), 109 S.Ct. 1357. We must agree with the state that the standard of review by this court is whether the error constituted plain error pursuant to Crim.R. 52(B) since appellant failed to either object or request a specific instruction. The law of plain error in Ohio compels the appellate court to review the entire record and determine whether the outcome of the trial would have been different had the error not occurred. State v. Bonnell (1991), 61 Ohio St.3d 179. In the instant case, the jury found appellant guilty of both counts of aggravated murder. The jury verdict on prior calculation and design was specific and unanimous. See State v. Woodard (1993), 68 Ohio St.3d 70, 75. Appellant was the only person charged with the crimes. There was no evidence presented at trial that suggests that Amy Perkins was killed by anyone other than appellant. Id. It is, therefore, not unreasonable to conclude that the jury unanimously found appellant to be the principal offender. The trial court's failure to instruct was harmless, so we overrule appellant's fifth assignment. VII. Appellant argues in his sixth assignment that the trial court erred by allowing the state to readmit evidence that was proper for the guilt determination phase of trial into the penalty phase. Appellant contends that the admission of photographs of the victim and other exhibits previously admitted and the court's instruction to the jury that it could consider the exhibits were irrelevant and in error. Appellant further contends that even if they were relevant, they were prejudicial. We disagree. In State v. Woodard, supra, the court held: "'The courts of this state have been required to wrestle with the question of what evidence is appropriate for the prosecution to introduce at the penalty stage. We now hold that, pursuant to R.C. 2929.03(D)(1), the prosecutor, at the penalty stage of a capital proceeding, may introduce "* * * any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing * * *." While this appears to permit repetition of much or all that occurred during the guilt stage, nevertheless, a literal reading of the statute given to us by the General Assembly mandates such a result, especially in light of the prosecution's obligation to demonstrate, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation. R.C. 2929.03(D)(1).'" On the authority of Woodard, supra, we find the admission of the exhibits relevant and proper and reject appellant's sixth assignment. VIII. Appellant, in his seventh assignment, argues that his case was prejudiced by prosecutorial misconduct during the penalty phase. Appellant argues that the prosecutor improperly commented on his decision to make an unsworn statement. The comment in question is as follows: "In addition, you heard testimony -- the fourth witness was in fact Wiley Davis, that he came to the witness stand, ladies and gentlemen, and gave an unsworn statement. "You will recount he was not put under oath. He was not subject to cross-examination, by giving an unsworn statement, which did not allow the State of Ohio to cross-examine him, and what did he say to you, ladies and gentlemen? "He said, 'I know what Amy Perkins' family is going through, and my family is going through it, too'. Spare my life, in essence. "I say to you, ladies and gentlemen, again, that even if you consider it was a mitigating factor, spare my life, that the aggravating circumstances in this case outweigh that mitigating factor beyond a reasonable doubt, and based upon the law as the Judge instructs you, and the facts as you find them you are dutybound to follow the law, and the law states that when the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt the jury should recommend to the Court the imposition of the sentence of death." It is well established that the prosecution is permitted to comment on the nature of the unsworn statement submitted by the accused. State v. Mapes (1985), 19 Ohio St.3d 108, 155. However, the Ohio Supreme Court has put a limit to what the prosecutor can say about the unsworn statement in State v. Depew (1988), 38 Ohio St.3d 275, 285. The prosecutor is limited to commenting about the unsworn statement in contrast to the testimony of all other witnesses. The comment, "He was not subject to cross examination" is not violative of Depew. The prosecutor went on to repeat what was in the unsworn statement and presented further argument in an attempt to rebut the mitigating evidence presented by appellant in the statement. The prosecutor performed her duty. Id. We find no misconduct. Appellant further argues that other comments by the prosecutor were also prejudicial to his case and resulted in an unfair trial. Appellant specifically referred to the following comments: "You will recount that David Perkins said that he and Amy had been married one year and twenty-three days. "I ask you to consider, ladies and gentlemen, what Amy Perkins' family is going through. "I ask you to consider, ladies and gentlemen, the fact that David Perkins has to consider that his wife died a horrible death, that she was thrown into -- "MR. McGANN: Objection. "THE COURT: Overruled. "MRS. JONES: -- a street, in broad daylight, like garbage, just thrown out there, with no clothes on, for anybody to take a look at her, and see her in that condition, not only the fact that she was unclothed, but the fact that she had a hole in her head and, as Patrolman Dillon stated to you it was so large and the day was so cold that you could see the steam flowing from her head as she laid on that ground." The invocation of the victim's family and how the victim's husband feels about his wife's horrible death, i.e., being thrown out like garbage, is highly improper. It was no doubt intended to appeal to the jury's sense of outrage and sympathy, especially in the instant case when the statement was made at a time when appellant's fate was on the line. See State v. Mills (1992), 62 Ohio St.3d 357, 371. We note, however, that appellant objected to the comment, and the trial court overruled the objection. The trial court did not give a curative instruction regarding this bad taste in prosecutorial comments. But in light of our independent review of the entire trial and comments, we find the error harmless, as the comment did not materially prejudice appellant. See State v. Maurer (1984), 15 Ohio St.3d 239, 264; Smith v. Phillips (1982), 455 U.S. 209, 219. Appellant further complains that the following comments also prejudiced his case: "The Judge is going to instruct you that you must consider the nature of the offense, the history, character, and background of the offender. "I have gone over the nature of the offense. I need not go over that for you any more. I am sure you don't even want me to say all the things that I have said to you about what Amy Perkins went through on that last day that she lived on this earth, but what I want you to recount or think about for a moment is what do you know about Wiley Davis?" Appellant argues that the prosecutor by the above comments introduced additional non-statutory aggravating factors. Appellant contends that the nature of the offense is not an aggravated factor and neither is the killing itself. Improperly introducing nonstatutory aggravating circumstances is error. However, in the instant case, we find no error. The jury found as an aggravated circumstance that appellant committed murder as the principal (there being no other offender in the course of robbery and attempted rape). The prosecutor can also challenge the mitigating evidence presented by the defense as here, appellant's mother's and sister's testimony, and appellant's unsworn statements asking to spare his life. The prosecutor's comments are not inconsistent with the court's instruction that the jury "consider the nature and circumstances of the offense, the character, history, and background of the offender that is in the evidence." The prosecutor commented as follows: "What you know about Wiley Davis is the evidence that you heard in this courtroom, that he in fact would do what he did to Amy Perkins, that the nature and character of the offense speaks to what or who Wiley Davis is, because that is all we have in evidence. "A person that would do what happened to Amy Perkins on November 26, is what you are considering. "You also have to consider, ladies and gentlemen, that he worked for Salvee's Restaurant for five years, and you have to consider that he's married, and that he has a wife, and that he has a family, but even when you consider all of those things you must look at the fact that the nature and circumstances of this case outweigh the mitigating circumstances of this case." Appellant's seventh assignment is overruled. IX. In his eighth assignment, appellant argues that the court erred by instructing the jury that its decision in the penalty stage is a recommendation. Appellant cites Caldwell v. Mississippi (1985), 472 U.S. 320, wherein the United States Supreme Court held that a death sentence is invalid "when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case." Id. at 323. In light of the Caldwell decision, the United States Supreme Court in Rogers v. Ohio (1985), 474 U.S. 1002, vacated and remanded the Ohio Supreme Court judgment in State v. Rogers (1985), 17 Ohio St.3d 174, for further consideration. Upon reconsideration on remand, the Ohio Supreme Court held in State v. Rogers (1986), 28 Ohio St.3d 427, certiorari denied (1987), 484 U.S. 958, paragraph one of the syllabus, that Caldwell, supra: "is inapplicable where the statements made to the jury during the mitigation phase of a capital trial were accurate statements of the law and were not made to induce reliance on the appellate process." In the instant case, there is no error in the trial court's instruction as the statements were accurate statements of Ohio law. State v. Watson (1991), 61 Ohio St.3d 1, 18. In Ohio, unlike Mississippi, there is no "sentencing jury." Id. at 429. The jury can only recommend to the trial judge who has the utmost power to impose the punishment of death, subject of course to appellate proceedings. See R.C. 2929.03(D)(3). Since the instruction in the instant case was a replica of that given by the Rogers' court, we find appellant's eighth assignment without merit. X. Appellant in his ninth assignment argues that the court erred by instructing the jury as follows: "The aggravating circumstances set forth in the specification of the first count of the indictment constitute separate and distinct matters." This misstatement did not rise to the level of prejudice. The court continued with the instruction which appellant conveniently ignored while making his challenge: "You must consider the specifications and the evidence applicable to each specification separately, and you must state your findings as to each specification separately. "Your decision on each specification will be expressed by a verdict of guilty or not guilty as to that separate specification and, obviously, guilt as to each specification must be proved by the State of Ohio beyond a reasonable doubt. "Again, when you look at the verdict forms, you just have to fill in the blanks. At the time you will understand what I am saying. "Now, I said there are four specifications, but what I am going to do is exhaustively go through each of the four specifications as to Count One." Error is prejudicial and reversible if it is substantial, affects the right of the accused to a fair trial. In finding such effect, the appellate court must look to the entire case and not just one sentence. We have reviewed the sentence in connection to the entire instruction and find no error. Appellant's ninth assignment is overruled. XI. In his tenth assignment, appellant argues that the trial court failed to instruct the jury during the penalty stage on residual doubt. We find this argument without merit. While residual doubt of a capital defendant's guilt may properly be considered in mitigation, Lockhart v. McCree (1986), 476 U.S. 162, 181; State v. Watson, supra; State v. Gillard (1988), 40 Ohio St.3d 226, 234, it is not applicable where there is no residual doubt of appellant's guilt. State v. Bonnell (1991), 61 Ohio St.3d 175, 184. In the instant case, after our independent review, we find no prejudice in the trial court's failure to instruct the jury on residual doubt as such instruction would not have changed the verdict in light of the evidence of guilt. Appellant's tenth assignment is overruled. XII. Appellant argues in his eleventh assignment that the court erred by giving an "acquittal first" instruction to the jury during the penalty phase. The trial court gave the following instructions: "On the other hand, if after considering all of the relevant evidence raised at trial, the testimony, other evidence, the unsworn statement of Wiley Davis, Jr. and the arguments of counsel, you find that the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing, outweigh the mitigating factors, then you will return your verdict reflecting your decision; that is, you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors. "In this event you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the Court." Appellant argues that the above instruction is tantamount to an "acquittal first" instruction citing State v. Thomas (1988), 40 Ohio St.3d 213, third paragraph of the syllabus. We reject appellant's argument as we find no error in the instruction. appellant has already been found guilty of aggravated murder. The issue before the jury is not a lesser included offense and as such is not in issue. Where the state fails to prove that the aggravating circumstances outweigh the mitigating factors, the jury cannot reduce appellant's murder charge but can recommend a life sentence. State v. Thomas, supra, therefore, is inapplicable. Appellant's eleventh assignment is overruled. XIII. In his twelfth assignment, appellant agues that his right to a fair trial was denied because the court did not properly instruct the jury on the definitions of reasonable doubt and aggravating circumstances. Appellant argues that the definition of reasonable doubt given by the court gave the jury no option but to return a verdict of death. We note that appellant did not object to the court's instruction. Crim.R. 30(A) states in relevant part: "[A] party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Any failure to object to a jury instruction at the time of trial constitutes a waiver. State v. Scott (1986), 26 Ohio St.3d 92, 100. Since appellant failed to object, and thus comply with Crim.R. 30(A), he must establish that the instruction amounted to plain error. Id. at 100; State v. Spirko (1991), 59 Ohio St.3d 1, 17. Appellant acknowledged that the instruction was the standard statutory definition as provided by R.C. 2901.05(D) but faulted the instruction by emphasizing that the word "charge" tainted the instruction and violated his right. We shall not indulge in a one word error because it is so easy to pick up one word in almost two thousand pages of transcript and build a case out of it. Rather, we shall review the entire instruction to determine where the plain error lies. The jury was instructed in relevant part as follows: "Now, the State of Ohio has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant, Wiley Davis, Jr., was found guilty of committing are sufficient to out- weigh the factor or factors, if any, in mitigation of the imposition of the sentence of death. "Again, what is reasonable doubt? As you know the Legislature of the State of Ohio has defined reasonable doubt as follows: "'Reasonable doubt is present when after you have carefully considered and compared all the evidence you cannot say you are firmly convinced of the truth of the charge. "'Reasonable doubt is a doubt based on reason and common sense. "'Reasonable doubt is not mere possible doubt because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "'Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs'." We have reviewed the charge and find no error let alone plain error. The state is duty bound to prove that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The aggravating circumstance is the "charge" that the jury in comparing the state's evidence must be convinced beyond a reasonable doubt outweighs whatever mitigating circumstance appellant presented. So for the jury to return a verdict of death, it must be convinced of the truth that the "aggravating circumstances" (the charge) outweigh the mitigating factors. Since there is no error in the instruction, we find this assignment not well taken. Appellant repeats the same argument he made in his fifth assignment concerning the court's instruction on the specifications. We reject this argument as we did in assignment five and repeat that there is nothing in the record to indicate that there was any other suspect or defendant in the murder. The instruction therefore, was not reversible error. See State v. Moreland (1990), 50 Ohio St.3d 58, 62-63. Appellant's twelfth assignment is overruled. XIV. Appellant in his thirteenth assignment argues that his counsel's ineffectiveness during both phases of the trial deprived him of his right to effective representation according to law. Appellant contends that his counsel's failure to object to numerous erroneous jury instructions and improper comments by the prosecutor denied him the right to effective assistance of counsel. The standards governing claims of ineffective assistance of defense trial counsel under the Federal and Ohio Constitutions are well established and essentially the same. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136, 142. To demonstrate ineffective assistance of trial counsel to warrant reversing a jury conviction, the defendant must demonstrate the following, viz.: (1) trial counsel's performance was deficient; and (2) resulted in prejudice since there is a reasonable probability that, but for trial counsel's errors, the outcome of the trial would have been different. Id. Stated otherwise, defendant must demonstrate "'errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment'" and "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Carter (1992), 64 Ohio St.3d 218, 224, quoting Strickland, 466 U.S. at 687. Appellant has failed to demonstrate that his counsel's failure to make objections prejudiced his case as counsel's objections would not have changed the outcome of the case. Moreover, we ruled on previous assignments on those issues that appellant was not prejudiced because the claimed errors were either harmless or nonexistent. Appellant's thirteenth assignment is likewise overruled. XV. In his fourteenth assignment, appellant contends that the trial court erred in adopting the recommendation of the jury that the aggravating circumstances outweighed the mitigating factors. Appellant argues that the court improperly recounted what 2 happened to the victim. Appellant argues that the court erred by commenting on how the victim's husband was taken to the hospital morgue to identify his wife. Appellant called the court's comment an "impermissible consideration of victim impact evidence" which prejudiced his case. Appellant also contends that the trial court's remark about his being unremorseful contributed to the court's acceptance of the jury verdict. We do not consider the trial court's reference to the nature and circumstances of the offense as impermissible. The trial 2 These comments occurred after the jury announced its verdicts so such comments did not influence the jury. court is allowed to consider the nature and the circumstances of the offense in determining whether the aggravating circumstances outweighed the mitigating factors. State v. Combs (1991), 62 Ohio St.3d 278; State v. Stumpf (1987), 32 Ohio St.3d 95. Accordingly, we overrule appellant's fourteenth assignment. XVI. Appellant argues in his fifteenth assignment that the trial court erred by ordering that he be in solitary confinement every twenty-sixth day of the month until his death. The state countered by arguing that "the brutality and coldness of the crime would seem to warrant this portion of the sentence more than appropriate." We disagree. We do not intend to belittle the nature of the crime in question and its impact on people. But as reprehensible as an offense might be, sentencing is controlled by law and not by emotion or sentiment. The court cannot go outside the parameters set by the law in sentencing because it feels one way or the other about the crime or the perpetrator. We cannot accept the trial court's venture into the province of the legislature as an appropriate judicial function. Ohio courts must continue to abide by the law of sentencing as set forth by the legislature until such time as the legislature sees fit to make changes. It is a legislative problem and should remain so. See State v. Dillon (1883), 30 Ohio St. 586; State v. Bilder (1987), 39 Ohio App.3d 135; State v. Scott (1983), 8 Ohio App.3d 358; accord State v. Johnson (Aug. 20, 1992), Cuyahoga App. No. 61015, unreported. Accordingly, we sustain appellant's fifteenth assignment of error and vacate his sentence as to solitary confinement. XVII. Appellant argues in his sixteenth assignment that the trial court violated the double jeopardy clause of the United States Constitution by failing to merge the two counts of aggravated murder. The law remains in Ohio that a defendant can be convicted of two counts of aggravated murder but can only receive one sentence if the offenses are allied. State v. Huertas (1990), 51 Ohio St.3d 22, 28. Two counts of aggravated murder for one killing are allied offenses of similar import. State v. Brown (1988), 38 Ohio St.3d 305, 317. In the instant case, the state is not disputing that appellant's offenses are allied. So we look not to the conviction but to the sentencing. The jury does not sentence a defendant, the court does, and thus the merger comes into play at sentencing. In the instant case, the record shows that appellant received only one sentence of death. The trial court's failure to announce "I merge your two sentences to one death sentence" is inconsequential to the outcome of appellant's sentence. He got only what the law says he should get and we cannot reverse this case so the trial court can make a separate merger announcement. So, we overrule appellant's sixteenth assignment. XVIII. In appellant's seventeenth assignment appellant charges that the Ohio Capital Sentencing Scheme is unconstitutional. Appellant in this assignment assails the constitutionality of the Ohio death penalty statutes. However, the record shows that appellant did not raise any of these constitutional claims in the trial below. So, the arguments are deemed to be waived. State v. Green (1993), 66 Ohio St.3d 141, 151; State v. Rojas (1992), 64 Ohio St.3d 131. Appellant's failure to raise these arguments notwithstanding, they are still without merit. Appellant's contention the Ohio death penalty statute constitutes cruel and unusual punishment has been rejected in State v. Jenkins (1984), 15 Ohio St.3d 164, 168. Appellant's claim the Ohio death penalty statutory scheme violates equal protection has been rejected in State v. Buell (1986), 22 Ohio St.3d 124, 136, certiorari denied, (1986), 479 U.S. 871; Jenkins, supra at 169, rejected defendant's claim the Ohio death penalty statutes unconstitutionally grant too much discretion during the indictment process to the prosecution. Appellant's claim the Ohio death penalty statutes violate due process since capital punishment is not the least restrictive means of serving a compelling state interest was rejected by the Ohio Supreme Court in Jenkins, at 168. Appellant's contention the Ohio death penalty statutes unconstitutionally shift the burden of proving mitigating factors on a defendant by a preponderance of the evidence was rejected in Jenkins, at 171-172. Appellant's claim the Ohio death penalty statutes unconstitutionally require proof of the aggravating circumstance during the guilt phase in trial was rejected in State v. Buell, supra at 137, certiorari denied, (1986), 479 U.S. 871; Jenkins, supra at 173. Appellant's claim the Ohio death penalty statutes are unconstitutional when the aggravating circumstances for felony- murder is identical to an element of aggravated murder was rejected in State v. Franklin (1991), 62 Ohio St.ed 118, 119, certiorari denied (1991), 112 S.Ct. 2315. Appellant's contention the Ohio death penalty statutes unconstitutionally deprive defendant of his right to a jury trial was rejected in State v. Buell, supra, at 138-140, certiorari denied (1986), 479 U.S. 871; Jenkins, supra at 173 n.11. Appellant's claims that submission of the presentence investigation report and mental evaluation to the judge and/or jury is unconstitutional was rejected in State v. Steffen (1987), 31 Ohio St.3d 111, 121-122, certiorari denied (1987), 485 U.S. 916. Appellant's contention appellate courts cannot adequately review the proportionality of sentences by reviewing precedents was rejected in State v. Wickline (1990), 50 Ohio St.3d 114, 124; Steffen, supra, paragraph one of the syllabus. Finally, appellant's contention the Ohio Death penalty statutes unconstitutionally mandate imposition of the death penalty when no mitigating circumstances have been proven has been rejected in State v. Williams (1986), 23 Ohio St.3d 16, 24; certiorari denied, (1986), 480 U.S. 923; Jenkins, supra, at 178. See also State v. Sowell (1988), 39 Ohio St.3d 322, 335-336; State v. Zuern (1987), 32 Ohio St.3d 56; McCleskey v. Kemp (1987), 481 U.S. 279. Accordingly, appellant's seventeenth assignment is also rejected. The trial court's judgment is affirmed in part and vacated in part. Judgment accordingly. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J., and DYKE, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 64270 : STATE OF OHIO : SUPPLEMENTAL : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION WILEY DAVIS, JR. : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 8, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-275129 JUDGMENT: Separate Opinion Pursuant to R.C. 2929.05(A). DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue FRANK GASPER, ESQ. Cleveland, Ohio 44103-1125 Assistant Prosecuting Attorney The Justice Center JAMES DRAPER, ESQ., Cuyahoga 1200 Ontario Street County Public Defender Cleveland, Ohio 44113 MARGARET O. ISQUICK, ESQ. Assistant Public Defender The Marion Bldg., Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 2 - HARPER, J.: Pursuant to R.C. 2929.05(A), this court certifies that it has reviewed the judgment, the sentence of death, the transcript and all facts and other evidence in the record in this case and makes the following independent findings: (1) The aggravating circumstances for which the appellant was found guilty outweigh the mitigating factors in this case. (2) The death sentence is not excessive or disproportionate to the penalty imposed in similar cases. (3) The evidence supports the findings by the trial jury and trial judge that appellant was guilty of aggravated murder and the aggravating circumstances charged in the indictment. (4) The trial judge properly weighed the aggravating circumstances for which the jury found appellant guilty and the mitigating factors. (5) The sentence of death is appropriate in this case. LEO M. SPELLACY, P.J., and DYKE, J., CONCUR. .