COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65711 : STATE OF OHIO : : SUPPLEMENTAL Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : APPELLATE REVIEW : OF MICHAEL N. TAYLOR : DEATH PENALTY : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 9, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-290970 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. PAUL A. MANCINO, ESQ. Cuyahoga County Prosecutor 75 Public Square, Suite 1016 WINSTON GRAYS, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney JOHN B. GIBBONS, ESQ. 8th Floor Justice Center 200 Standard Bldg. 1200 Ontario Street 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 THOMAS F. O'MALLEY, JR., ESQ. 75 Public Square, Suite 1320 -2- Cleveland, Ohio 44113 -3- BLACKMON, J.: Pursuant to the requirements set forth in R.C. 2929.05(A), this Court certifies that it has reviewed the judgment, the sentence and all of the evidence contained in the record and enters the following independent findings: 1. The aggravating circumstance which the appellant was found guilty of committing outweighs the mitigating factors in this case; 2. The offenses and aggravating circumstance which the defendant was found guilty of committing were proven beyond a reasonable doubt; 3. The death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases and is, therefore, appropriate; and 4. The trial judge properly weighed the aggrava- ting circumstance which the jury found appel- lant guilty of committing and the mitigating factors. PATTON, C.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON JUDGE COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65711 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL N. TAYLOR : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 9, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-290970 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. PAUL A. MANCINO, ESQ. Cuyahoga County Prosecutor 75 Public Square, Suite 1016 WINSTON GRAYS, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney JOHN B. GIBBONS, ESQ. 8th Floor Justice Center 200 Standard Bldg. 1200 Ontario Street 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 THOMAS F. O'MALLEY, JR., ESQ. 75 Public Square, Suite 1320 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Michael N. Taylor, defendant-appellant, appeals his conviction for aggravated murder and challenges his death sentence. Taylor assigns five assignments of error and nineteen supplemental assignments of error for a total of twenty-four assignments of error, five in his appellant's brief and nineteen in a supplemental 1 appellant's brief. In reviewing a capital case, this court must not only review the assigned errors, it must also "review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate." R.C. 2929.05(A). Having reviewed the record of the proceedings, the legal arguments presented by the parties, and after conducting the independent review mandated by R.C. 2929.05(A), we affirm the decision of the trial court and find the sentence of death appropriate. The apposite facts follow. Michael Taylor shot and killed Marion Alexander. He was subsequently indicted for aggravated murder with a fire-arm specification, a repeat murder specification, and an aggravated felony specification. Before a jury the apposite facts were presented. 1 See Appendix for complete list of assigned errors. -3- On November 25, 1992, at approximately 10:30 p.m., Taylor arrived at the Club Seville Night Club located in the city of Garfield Heights, Ohio. He was in the company of Sandra Paul, his girlfriend, and David Roseborough. The three of them took a seat at the "main" or "straight" bar. Marion (Donny) Alexander came into the Club immediately after them. Alexander was a regular customer of the bar. He knew most of the people in the bar, and everyone knew him. On that night, Alexander went behind the main bar and served himself because the barmaid was busy. After he paid for his drinks, he came from behind the main bar and took a seat by himself at the piano bar. During the course of the evening, Sandra Paul left her seat at the bar to play some music on the jukebox. The jukebox was on the other side of the piano bar, which was near where Alexander was sitting. While she was standing in front of the jukebox, Darlene Youngblood gave her an extra dollar so she could play more songs. Alexander asked Paul if she could play a song for him. She turned her head, looked at Alexander, and looked back at the jukebox. Alexander had dated Paul in the past, and Taylor knew about this relationship. Taylor responded to Alexander and said, "Put your own goddamn dollar in the box. My woman is not playing you no music." Alexander responded, "It ain't no problem. I have got a dollar here. I just asked her to play her record; I just requested it. It's no problem. What's the matter?" Taylor again said, "Put your -4- own goddamn dollar in there." Taylor and Alexander continued to stare at each other. After a few minutes passed, Taylor told Sandra Paul to get her coat because he was ready to leave. Paul got her coat and walked out of the door. David Roseborough walked by the jukebox toward the door when Taylor stood up to leave. Alexander stood up from his seat, raised his hands, and said to Taylor, "if you don't start no trouble, ain't going to be none." Taylor look at him, and said "what did you say, mother f_____," and started to shoot. Taylor shot Alexander in the chest and abdomen from across the room. Alexander fell to the ground and tried to crawl face down toward the door. Taylor walked around to where Alexander was crawling and shot him in the back four times. Taylor put his gun in his pocket. At that moment, Sandra Paul was coming back into the Club, and Taylor pushed her out the door. Taylor, Paul, and Roseborough got in a car and drove away. Darlene Youngblood went to the door to see them leave, and Taylor yelled out the window of the car, "It was self-defense." Marion Alexander died as a result of the gunshot wounds. In his defense, Taylor maintained he shot Alexander in self- defense. He testified that when Roseborough yelled "watch out," he believed Alexander was attempting to pull a pistol out of his coat, and he began shooting. He reacted by shooting Alexander once, and when Alexander kept coming toward him, he continued to shoot. Later that morning, Taylor contacted an attorney and turned himself over to the Garfield Heights Police Department. -5- The State offered evidence to the jury that in 1974 Michael Taylor had been convicted of murder. A deputy clerk of the Common Pleas Court authenticated a nunc pro tunc journal entry naming Michael Taylor as the defendant convicted of murder in 1974. A fingerprint expert reviewed the fingerprints of the 1974 defendant and the defendant herein and concluded the fingerprints matched. The state concluded Michael Taylor committed murder in 1974. At the end of the case, the jury returned a verdict of guilty on all the counts. A deputy clerk of the Cuyahoga County Court of Common Pleas testified to the authenticity of a nunc pro tunc journal entry indicating Michael Taylor was convicted of murder in 1974. A fingerprint expert from the Cuyahoga County Sheriff's Department compared the fingerprints of the Michael Taylor convicted of murder in 1974 with those of the defendant, who was on trial for the murder of Marion Alexander. On the basis of the prints, the expert concluded that Michael Taylor in both cases was one and the same person. At the penalty phase of the trial, Taylor presented several witnesses. Rita Politzer, a clinical psychologist, testified Taylor was suffering from a paranoid personality disorder that caused him to perceive certain people as a threat and act violently toward them. A former employer testified Taylor was a very hard worker, intelligent, amenable, and pleasant to all his co-workers. Robert Doss, Taylor's minister, testified to Taylor's good character. Constance Turner, the mother of Taylor's seven year old son, testified the death penalty should not be imposed because his -6- son will need him. Taylor's younger sister, Sharon Levett, testified the death penalty should not be applied because she believes he acted in self-defense, and she does not want her brother to die. After the trial court's charge, the jury returned a sentence of death. The trial court reviewed the sentence of death as required by R.C. 2929.03(F), determined the aggravating circumstance of the prior murder conviction outweighed the mitigating factors, and accepted the jury's recommendation that a sentence of death be imposed upon Michael Taylor. This appeal followed. In his first assignment of error, Taylor asserts the imposition of the death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution. In this assignment of error, Taylor categorically sets forth thirteen separate arguments challenging the Constitutionality of Ohio's death penalty statutes as a matter of law. Accordingly, the standard of review is de novo. The Supreme Court of Ohio has held "when issues of law in capital cases have been considered and decided by this court and are raised anew in a subsequent capital case, it is proper to summarily dispose of such issues in the subsequent case." E.g. State v. Poindexter (1988), 36 Ohio St.3d 1 at the syllabus. Taylor specifically argues the following: A. THE DEATH PENALTY AUTHORIZED BY THE OHIO REVISED CODE DEPRIVES CAPITALLY-CHARGED DEFENDANTS OF THEIR LIVES WITHOUT DUE PROCESS -7- OF LAW, DENIES EQUAL PROTECTION AND IMPOSES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE OHIO AND UNITED STATES CONSTITUTIONS. B. R.C. 2929.022, 2929.03, AND 2929.04 VIOLATE THE ACCUSED'S RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO A TRIAL BEFORE AN IMPARTIAL JURY, AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 9, 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION. C. R.C. 2929.03, 2929.04 AND 2929.022 VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16, ARTICLE I OF THE OHIO CONSTITUTION BY FAILING TO PROVIDE ADEQUATE GUIDELINES FOR DELIBERATION, LEAVING THE JURY WITH PROPER GUIDELINES IN BALANCING THE AGGRAVATING CIRCUMSTANCES AND MITIGATING FACTORS. D. R.C. 2929.022, 2929.03 AND 2929.04 AND CRIM.R. 11(C)(3) PLACE AN UNCONSTITUTIONAL BURDEN ON THE ACCUSED'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND HIS RIGHTS TO BE FREE FROM COMPULSORY SELF- INCRIMINATION UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. E. R.C. 2929.03 FAILS TO PROVIDE A MEANINGFUL BASIS FOR DISTINGUISHING BETWEEN LIFE AND DEATH SENTENCES, AS IT DOES NOT EXPLICITLY REQUIRE THE JURY, WHEN IT RECOMMENDS LIFE IMPRISONMENT, TO SPECIFY THE MITIGATING FACTORS FOUND, OR TO IDENTIFY ITS REASONS FOR SUCH SENTENCE. THIS DENIES THE ACCUSED HIS RIGHTS UNDER R.C. 2929.03(A), THE OHIO CONSTITUTION AND THE FEDERAL CONSTITUTION. F. R.C. 2929.021, 2929.03 AND 2929.05 FAIL TO ASSURE ADEQUATE APPELLATE ANALYSIS OF ARBI- TRARINESS, EXCESSIVENESS AND DISPROPORTIONALITY OF DEATH SENTENCES AND THE OHIO SUPREME COURT FAILS TO ENGAGE IN A LEVEL OF ANALYSIS THAT ENSURES AGAINST ARBITRARY DEATH SENTENCING. -8- G. THE APPELLATE REVIEW PROVISION OF R.C. 2929.05 FAILS TO SPECIFICALLY REQUIRE INQUIRY AND FIND- INGS REGARDING ARBITRARINESS, PASSION OR PREJUDICE, AND THUS IS CONSTITUTIONALLY INADEQUATE UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16 OF THE OHIO CONSTITUTION. H. THE OHIO DEATH PENALTY STATUTE IMPERMISSIBLY MANDATES IMPOSITION OF THE DEATH PENALTY AND PRECLUDES A MERCY OPTION IN THE ABSENCE OF MITIGATING EVIDENCE OR WHEN AGGRAVATING CIRCUMSTANCES OUTWEIGH MITIGATING FACTORS. I. R.C. 2929.03, 2929.04 AND 2929.05 VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9 AND 16 OF THE OHIO CONSTITUTION BY FAILING TO REQUIRE THE JURY TO DECIDE THE APPROPRIATENESS OF THE DEATH PENALTY. J. THE OHIO DEATH PENALTY SCHEME PERMITS IMPOSITION OF THE DEATH PENALTY ON A LESS THAN ADEQUATE SHOWING OF CULPABILITY BY FAILING TO REQUIRE A CONSCIOUS DESIRE TO KILL, PREMEDITA- TION, OR DELIBERATION AS THE CULPABLE MENTAL STATE. K. THE OHIO "BEYOND A REASONABLE DOUBT" STANDARD OF PROOF FAILS TO MEET THE REQUIREMENT FOR HIGHER RELIABILITY FOR THE GUILT DETERMINATION PHASE OF A CAPITAL CASE. L. THE AGGRAVATING CIRCUMSTANCE THE ACCUSED IS CHARGED WITH COMMITTING, R.C. 2929.04(A)970, IS CONSTITUTIONALLY INVALID WHEN USED TO AGGRAVATE R.C. 2903.01(B) AGGRAVATED MURDER. M. R.C. 2929.03, 2929.04 AND 2929.05 VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 9 AND 16 OF THE OHIO CONSTITUTION BY FAILING TO PROPERLY ALLOCATE THE BURDEN OF PROOF DURING MITIGATION PHASE OF TRIAL. All of the above arguments raise issues of law. Issues A, D, F, H, J, K, and L were previously considered and overruled in State v. Jenkins (1984), 15 Ohio St.3d 164. Issues B, C, E, and G were -9- previously considered and overruled in State v. Scott (1986), 26 Ohio St.3d 92. Issue I was previously considered and overruled in State v. Steffen (1987), 31 Ohio St.3d 111. Finally, Issue M was previously considered and overruled in State v. Seiber (1990), 56 Ohio St.3d 4. Because the issues of law raised in Taylor's thirteen arguments were specifically considered and overruled by the Supreme Court of Ohio, this assignment of error has no merit. In his second assignment of error, Taylor asserts the trial court erred in not granting his Crim.R. 29(A) motion for an acquittal. He concludes the evidence is insufficient to establish prior calculation and design. To support this conclusion, he asserts the evidence revealed he and Alexander were involved in an altercation precipitated by an exchange of words and intimidating glances. We disagree with Taylor's conclusion. A motion for judgment of acquittal will not be granted unless, after viewing the evidence in the light most favorable to the prosecution, the court determines that reasonable minds could reach different conclusions about whether each material element of the crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978), 55 Ohio St.2d 261. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319. R.C. 2903.01(A) provides as follows: "No person shall purposely, and with prior calculation and design, cause the death of another." "***The section employs the phrase, 'prior calculation and design,' to indicate studied care in planning or -10- analyzing the means of the crime, as well as a scheme encompassing the death of the victim. Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must amount to more than momentary deliberation.***" R.C. 2903.01 (Committee Comment to H 511). The test for prior calculation and design is as follows: "Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." See, e.g. State v. Cotton (1978), 56 Ohio St. 2d 8. If Taylor had shot Alexander during an almost "instantaneous eruption of events," without some evidence of studied analysis the evidence of prior calculation and design would be insufficient as a matter of law. State v. Davis (1982), 8 Ohio App.3d 205, 207, quoting State v. Jenkins (1976), 48 Ohio App.2d 99 at 103. In our judgment, however, the circumstances in this case reflect Taylor was operating with the sort of scheme contemplated within the meaning of "prior calculation and design." Compare Davis (defendant's conviction reduced from aggravated murder to murder where defendant was in a confrontation with three persons in a bar and did not reach for his gun until getting the worst of their treatment), with State v. McClain (Jan. 14, 1993), Cuyahoga App.No. 61541, unreported (defendant convicted of aggravated murder where -11- defendant attempted to kill his wife and daughter with a knife, and after the knife broke, defendant made a conscious decision to strangle them with a television cord). The evidence, with respect to prior calculation and design, in this case is more consistent with the evidence of conscious decision-making in McClain than it is with the evidence of spontaneity in Davis. The evidence reveals Taylor and Alexander did have an exchange of words and intimidating glances prior to the shooting, but the shooting did not occur immediately thereafter. Both men went back to their seats. Taylor ordered his girlfriend to go outside to the car. Meanwhile, his companion, Roseborough headed for the door but positioned himself near the door behind where Alexander was seated. When Taylor stood up from his chair to leave, Alexander stood up, put his hands up in the air, and the two men exchanged words again. Taylor immediately pulled out his gun and shot Alexander several times. Alexander fell to the ground and attempted to crawl away, but Taylor walked over to where Alexander had fallen and shot Alexander in the back several times. It is reasonable to infer that Taylor ordered his girlfriend to leave and waited for Roseborough to strategically position himself behind Alexander because he planned to shoot Alexander. Moreover, Taylor clearly had a choice not to shoot Alexander after Alexander fell down; Alexander was still alive but injured. Taylor made a conscious decision to walk over to where Alexander was crawling face down on the floor and shot him four more times. -12- Construing this evidence in the light most favorable to the prosecution, there was sufficient evidence to prove the element of prior calculation and design. Taylor's conscious decisions to get his girlfriend out of the way, to strategically position Roseborough, and to continue to shoot Alexander after he was down, more than any other evidence proved he acted with prior calcula- tion and design. Accordingly, the trial court correctly overruled Taylor's motion for judgment of acquittal under Crim.R. 29(A). In his third assignment of error and his eleventh supplemental assignment of error, Taylor asserts he was denied due process by the admission of a clearly incorrect and misleading nunc pro tunc journal entry showing a prior conviction of an aggravated felony. Taylor also asserts he had a right to be present when the trial judge executed the nunc pro tunc journal entry. We disagree. On April 23, 1993, the trial court in a separate case, State v. Taylor (CR-012596), issued a nunc pro tunc journal entry "as of and for April 10, 1974" to correct the "erroneously typed" journal entry. The corrected journal entry indicates Michael Taylor entered a plea of guilty to murder and was sentenced to a term of fifteen years to life. The journal entry was admitted as an exhibit in this case as evidence of a prior conviction. "Where questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima- facie showing of constitutional infirmity." State v. Brandon -13- (1989), 45 Ohio St.3d 85 at the syllabus (where defendant challenged uncounseled plea in prior theft conviction). See, also, State v. Adams (1988), 37 Ohio St.3d 295. Taylor argues the prior conviction was unconstitutionally invalid because he had a right to be present during the hearing in which the trial court decided to execute a nunc pro tunc journal entry. It is a violation of a defendant's right to due process under the Ohio and United States Constitutions to deny him the opportunity to be present at every stage of a criminal trial. State v. Williams (1983), 6 Ohio St.3d 281, 286. In Ohio, this right of due process is embodied in Crim.R. 43(A). Id. It provides as follows: "The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules.***" Crim.R. 43(A). At issue in this case is whether a hearing to decide whether to execute a nunc pro tunc entry is a stage in the trial proceeding. "A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth. It is used to record that which the trial court did, but which has not been recorded. It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued. ***It can be used to ***correct typographical or clerical errors." State v. Greulich (1988), 61 Ohio App.3d 22, 24. -14- The nunc pro tunc entry of Taylor's prior conviction reveals it was clearly used to correct a typographical error in another case. The hearing held on such a nunc pro tunc hearing did not represent a new stage of the trial, because the matter involved a separate case and merely memorialized what the trial court did in that case. Although it would have been prudent for the trial court in the prior proceeding to resolve this issue in a hearing with notice to all parties, Taylor's right to due process was not violated by the failure to provide him with an opportunity to be heard before executing the nunc pro tunc entry. Taylor also challenges whether the judgment entry from the prior proceeding is a proper execution of a nunc pro tunc entry. He argues the actual conviction was improperly modified by the nunc pro tunc entry. "A nunc pro tunc order cannot be used to supply omitted action, or to indicate what the court might or should have decided, or what the trial court intended to decide. Its proper use is limited to what the trial court actually did decide." Id. at 25. In the trial court, Taylor orally proffered that he would present two documents in support of his argument. The first document was the original journal entry reflecting a conviction for attempted murder which the trial court corrected. The second document was a certificate signed by Governor James Rhodes stating "the defendant herein was not convicted, or that there is some doubt as to whether he was convicted of the offense of murder." -15- The certificate clearly stated Taylor had been convicted of attempted murder. Nonetheless, the documents proffered do not tend to prove the trial court in the prior proceeding improperly used a nunc pro tunc entry to modify the case. Furthermore, the evidence presented by Taylor failed to make a prima facie showing that his right to due process was denied by the trial court in the previous proceeding. Accordingly, we find the trial court's admission of the nunc pro tunc entry in this case was not unconstitutional. In his fourth assignment of error and his ninth supplemental assignment of error, Taylor asserts he was denied a fair trial because the prosecutor made inflammatory and prejudicial comments during his closing argument in the mitigation phase of the trial. "The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the defendant of a fair trial." State v. Apanovitch (1987), Ohio App.3d 19, 24. In determining whether a prosecutor's behavior is both improper and prejudicial, this court must "***consider the effect the misconduct had on the jury in the context of the entire trial. State v. Keenan (1993), 66 Ohio St.3d 402, 410. Taylor specifically assigns error to the following comments: You recall I told you from the outset that it would be very easy to sit here and feel sorry for the defendant because Donny Alexander isn't here. It is very easy to lose sight of that. It is easy to feel sorry for the defendant's sister, or the other folks who testified, and got on the stand and cried. It is easy to feel sorry for them. They didn't kill Donny Alexander. They didn't gun him down -16- and pump seven bullets into him. They didn't refuse to give him a chance. This defendant- person did that, and it is ironic that you are being asked to do something that wasn't afforded Donny Alexander. Don't you think that he would have loved to have had the opportunity to tell the defendant, "wait a minute, please. Don't kill me. I have a family. I have children. I have worked 22 years at LTV Steel. I am a human being. He would have loved to have been able to have his sister, his mother ask MR. WEBSTER: Objection MR. GRAYS: the defendant THE COURT: The objection is sustained. MR. GRAYS: Donny Alexander didn't get that opportunity. He isn't here to ask you to do what you said that you could do at the outset. He isn't here to ask you to disregard any sympathy you might have and base your decision on the law and the instructions that Judge Gaughan is going to give you. *** You have to weigh that in relation to the defendant's two prior MR. WEBSTER: Objection THE COURT: Sustained. MR. GRAYS: You have to weigh that, and you determine whether it outweighs everything you have heard in this courtroom for seven days. *** I find it appalling that people took that stand and used the Bible for their own good. They take sections of the Bible out to use for their own purposes. They didn't mention the part in the Bible about "Thou shalt not kill." No, they left that out. That doesn't serve their purpose. -17- Everything you have heard was geared to one thing: To invoke your sympathy so that you would not impose the death penalty. I submit to you, ladies and gentlemen, after you hear the charge from the Court, the only verdict will be for the imposition of the death penalty. I would ask you to impose that, to impose the death penalty in this case because the facts and the law warrant it. Not sympathy; the facts and the law of which you each took an oath to follow. If you want to feel sorry for someone, feel sorry for Donny MR. WEBSTER: Objection. THE COURT: Overruled. MR. GRAYS: That's who you should feel sorry for. *** Taylor argues the prosecutor's comments on "two prior[s]" was improper. When the defense offers evidence of a defendant's history, character, and background in a capital case in mitigation of the death penalty, the state may offer evidence in rebuttal. See State v. Clark (1988), 38 Ohio St.3d 252, 254-255 (where defendant was presented as a "Bible-reading man" who had a potential for rehabilitation). Rebuttal evidence of history and background presented in the mitigation phase of the trial may include the defendant's prior criminal record. Id. at 255. In the present case, Taylor was portrayed by his childhood friend and minister, Robert Doss, as "a man of God," and as a "God- fearing man." Doss quoted the Bible and repeatedly stated "Vengeance is mine." Because Taylor raised the issue of his history, character, and background, he "opened the door" to all evidence relevant thereto. See Clark at 255. Furthermore, the -18- aggravating circumstance in this case was "repeat murder." See R.C. 2929.04(A)(5). Accordingly, Taylor's prior convictions could be properly argued in the mitigation phase of the trial. Taylor also argues the prosecutor's quoting the Bible as saying "Thou shalt not kill" was improper. This quote by the prosecutor was clearly offered in rebuttal to the moral appeal offered by Doss and the defense counsel. In addition to the testimony of Doss, Defense counsel argued as follows: "People who are just, don't require mercy, okay? You don't need to give mercy to someone who is just. It is the unjust that needs mercy. It is the sinner that Christ asked forgiveness for, okay?" After review- ing the testimony offered in mitigation and the closing argument of defense counsel, it is clear the prosecutor offered his arguments in rebuttal to Taylor's religious appeal for mercy. Above all, Taylor argues the prosecutor's comments were prejudicial because they attempted to invoke feelings of sympathy for Alexander as the victim. There can be no dispute that it is improper to appeal to the jury's sympathy or sense of outrage. See Keenan at 405. In that respect, the prosecutor asking the jury to "feel sorry for Donny [Alexander]," instead of Michael Taylor, was improper. In the same respect, to comment to the jury on what Alexander might have said or done had he not been killed was improper. Nonetheless, it is clear the improper emotional comments were offered by the prosecutor in the context of a closing argument in which he sought to refute defense counsel's plea for mercy. In -19- view of the entire record and because these comments did not compromise the fairness of the mitigation phase of the trial, we find the prosecutor's comments were not prejudicial; therefore, they did not deny Taylor a fair trial. In his first, fourth, fifth, sixth, seventh, and eighth supplemental assignments of error, Taylor asserts he was denied due process of law because the trial court improperly instructed the jury. We disagree. Under Crim.R. 30(A), the failure to object to jury instructions waives any error relating to the instructions except in the event of plain error. See State v. Gideons (1977), 52 Ohio App.2d 70. A defective jury instruction does not rise to the level of plain error unless it can be shown the outcome of the trial clearly would have been otherwise if the instruction was properly given. Cleveland v. Buckley (1990), 67 Ohio App.3d 799. See, also, State v. Long (1978), 53 Ohio St.2d 91. The plain error rule is to be applied with the utmost caution and invoked only to prevent a manifest miscarriage of justice. See Long at 97. In the present case, trial counsel for Taylor did not object to any of the jury instructions given; in fact, he stated to the trial court that he was satisfied with the instructions. Thus, Taylor's arguments with respect to the jury instructions raise issues involving the plain error rule. Taylor first argues the trial court improperly instructed the jury on voluntary manslaughter by failing to allocate the burden of proof. The failure to instruct a jury that sudden passion or a -20- sudden fit of rage are mitigating circumstances for which the defendant bears the burden of persuasion is error. See State v. Rhodes (1992), 63 Ohio St.3d 617. However, the giving of an incorrect jury instruction on voluntary manslaughter is not plain error where there is overwhelming evidence of murder. State v. Cooperrider (1983), 4 Ohio St.3d 226. In Cooperrider, the defendant brought a loaded gun to his brother's house in anticipation of trouble, shot his brother after he fell asleep, disposed of the gun, and left the scene of the crime. Id. at 228. In the present case, Taylor went to a bar armed, sent his girlfriend out of the bar and positioned his other companion behind the victim in anticipation of trouble, shot Alexander two times, walked over to where Alexander had fallen, shot him several more times, left the scene of the bar, and shouted "it was self-defense" as he rode away in a car. Under these facts, the state's evidence of aggravated murder was overwhelming, and there is no miscarriage of justice. Accordingly, there was no plain error in the trial court's voluntary manslaughter instruction. Taylor also asserts the trial court instructed the jury on flight and unconstitutionally shifted the burden of proof. The trial court instructed the jury on flight as follows: "Now, in this case, there is evidence tending to indicate that the defendant fled from the vicinity of the alleged crime. In this connection, you are instructed that flight, in and of itself, does not raise a presumption of guilt, but unless satisfactorily -21- explained, it tends to show consciousness of guilt or a guilty connection with the crime." Similar instructions on the issue of flight have been the subject of controversy. In State v. Fields (1973), 35 Ohio App.2d 140, the Supreme Court of Ohio held: "A court's instruction that the fleeing of an accused from the vicinity of an alleged crime, unless satisfactorily explained, tends to show a consciousness of guilt or a guilty connection with a crime compromises the right of such accused, under Articles V and XIV, Amendments, United States Constitution, to remain silent and not to have that silence converted into evidence against him." Id. at paragraph one of the syllabus. In Fields, the instruction on flight was critical because the defendant elected not to testify. supra. See, also, State v. Williams (Dec. 17, 1992), Cuyahoga App. No. 61262, unreported; State v. Mosley (June 23, 1994), Cuyahoga App. No. 65649, unreported. Nonetheless, this court has also found an erroneous instruction on flight was not plain error where the trial court expressly stated "that flight in and of itself does not raise a presumption of guilt. State v. Wilson (1988), 47 Ohio App.3d 136, 141. The present case is distinguishable from Fields because Taylor testified on his own behalf. As a result of Taylor's testimony, his right to remain silent was not compromised. Moreover, because the trial court's instruction included the language of Wilson, supra, "that flight, in and of itself, does not raise a presumption of guilt," the erroneous instruction was not plain error. -22- Taylor next asserts the trial court's instruction on causation reduced the requirement of specific intent to foreseeability. The trial court instructed the jury on causation as follows: The causal responsibility of the defendant for an unlawful act is not limited to its immediate or most obvious result. He is responsible for the natural and foreseeable results that follow in the ordinary course of events from an unlawful act. The test for foreseeability is not whether the defendant should have foreseen the jury in its precise form. The test is either a reasonably prudent person, in light of all the circumstances, would have anticipated that death was likely to result to anyone from the performance of the unlawful act. In reviewing the propriety of the trial court's causation instruction, this court is mindful that "[a] single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge." State v. Price (1979), 60 Ohio St.2d 136. See, also, State v. Thompson (1987), 33 Ohio St.3d 1. If the trial court's jury instruction on causation is viewed in isolation, Taylor's conviction could be reversed. See State v. Jacks (1989), 63 Ohio App.3d 200 (where murder conviction overturned because similar instruction transformed mens rea from purposeful to negligent behavior). The Supreme Court of Ohio reviewed the holding in Jacks in State v. Burchfield (1993), 66 Ohio St.3d 261, which was certified for conflict. In Burchfield, the court distinguished Jacks, when given in the context of extensive instructions on purpose and given in conjunction with instructions on voluntary manslaughter which distinguished murder and voluntary manslaughter by proof of -23- purpose. Id. at 262. Although the court dismissed the appeal for lack of conflict, it expressed concern over the use of 4 Ohio Jury Instructions ("OJI") (1992) as follows: "While OJI is widely used in this state, its language should not be blindly applied in all cases. The usefulness in murder cases of the foreseeability instruction is questionable, especially given its potential to mislead jurors. While the use of that instruction would not have led to our reversal of the conviction in this case, its unnecessary inclusion would have made the question closer than it need have been. The OJI foreseeability instruction should be given most cautiously in future murder cases." Id. at 263. The entire body of jury instructions in the present case are very similar to the instructions in Burchfield. The instruction on causation was given in the context of extensive instructions on the issue of purpose. The trial court gave an instruction on voluntary manslaughter which distinguished murder and voluntary manslaughter by proof of purpose. After reviewing the instructions in their entirety, and in view of the holding in Burchfield, this court finds the trial court's causation instruction was not plain error. Taylor next asserts the trial court's instruction concerning the infliction of a wound was plain error. The trial court instructed the jury on the infliction of a wound as follows: If a wound is inflicted upon a person with a deadly weapon, and in a manner calculated to destroy life, the purpose to kill may be inferred from the use of the weapon. Such an inference is not conclusive and may be accepted or rejected by you in your deliberations. If you accept such inference, then you must not -24- consider it, in and of itself, as conclusive, but you may consider it with the totality of all of the evidentiary facts and circumstances bearing upon the issue of intent. "It is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts." State v. Johnson (1978), 56 Ohio St.2d 35, 39. Although the jury in this case may have presumed Taylor's use of a gun was intended to kill, they were not compelled to presume such an intention. "The fact that the words 'may be' modify the word 'inferred' in the trial judge's instruction to the jury supports such a conclusion." See State v. Montgomery (1991), 61 Ohio St.3d 410, 415. Such an instruction does not create an unconstitutional mandatory presumption. Id. Accordingly, the trial court's instruction on infliction of a wound was not in error. Taylor next asserts the trial court's instruction concerning specific intent "watered down" the requirement of specific intent. The trial court instructed the jury on the specific intent as follows: "No person may be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another. Specific intent is no more nor less than a particular intent proscribed by Statute. The killing must have been done purposely, and with specific intent to cause the death of Marion Alexander by the defendant, Michael Taylor." Keeping in mind that a jury instruction may not be judged in artificial isolation but must be viewed in the context of the overall charge, Price, supra, we find no reason to believe the definition of specific intent was diluted or diminished in any way -25- by the trial court's instructions. Accordingly, the trial court's instruction on specific intent was not in error. Taylor next asserts the trial court's instructions restricted consideration of a lesser included offense unless the defendant had been found not guilty of the greater offense. The trial court instructed the jury on their deliberations of lesser included offenses as follows: If you find that the State failed to prove, beyond a reasonable doubt, all of the essential elements of aggravated murder, then your verdict must be not guilty of that offense, and in that event, you will continue your deliberations to decide whether the State has proved, beyond a reasonable doubt, all the essential elements of the lesser included offense of murder. If all of you are unable to agree on a verdict of either guilty or not guilty of aggravated murder, then you will continue your deliberations to decide whether the State has proved, beyond a reasonable doubt, all the essential elements of the lesser included offense of murder. Ladies and gentlemen, I'm going to repeat that: If you find that the State has proven, beyond a reasonable doubt, all the essential elements of the crime of aggravated murder, your verdict must be guilty. You will stop your deliberations. If you find that the State failed to prove, beyond a reasonable doubt, all the essential elements of aggravated murder, or you are unable to agree upon a verdict of guilty, or not guilty, as to aggravated murder, then, and only then, will you go on to consider the lesser offense of murder. If you all agree that the defendant is guilty of aggravated murder, you may not go on to consider anything else. If it is not guilty of aggravated murder, or you are unable to agree, then you go on to consider the lesser and included offense of murder. -26- "If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense." State v. Thomas (1988), 40 Ohio St.3d 213 at paragraph three of the syllabus. A careful reading of the instructions in this case will clearly reveal they do not require a verdict of not guilty to the offense of aggravated murder as charged before considering the lesser included offense of murder. Accordingly, the instruction on considering the lesser included offense of murder was not in error. In his second supplemental assignment of error, Taylor asserts he was denied due process of law because the trial court improperly included an aggravated felony specification and was prejudicial because it revealed a prior murder conviction. We disagree. The jury in this case was properly instructed to consider three offenses; aggravated murder, murder, and voluntary man- slaughter. Voluntary manslaughter is an aggravated felony of the first degree. R.C. 2903.03(B). As such, the trial court's instructions and verdict form on the aggravated felony specifica- tion under R.C. 2929.11(B) was correctly made a part of the jury's deliberations. Accordingly, the instruction on the aggravated felony specification was not error. -27- In his third supplemental assignment of error, Taylor asserts he was denied due process of law because the trial court deprived him of the right to be present at all proceedings. We disagree. A defendant has a constitutional right to be present, absent a waiver of this right or other extraordinary circumstances, at every stage of his trial. Illinois v. Allen (1970), 397 U.S. 337; State v. Williams (1983), 6 Ohio St.3d 281, 286. In Ohio, this due process right is embodied in Crim.R. 43(A) which states a "defendant shall be present at *** every stage of the trial." The defendant's physical presence, however, is not required when purely procedural questions are presented, such as preliminary pretrial motions which do not affect the substantial rights of the defendant. State v. Williams (1969), 19 Ohio App.2d 234, 240-241. Finally, a defendant's attorney may waive his client's right to be present. Id. at 243. State v. Berry (Oct. 21, 1993), Cuyahoga App.No. 60531, unreported. In the present case, Taylor argues there were three instances in which he was not present at a critical stage of the trial. The first instance involved jury selection prior to trial and the second instance involved questions from the jury during their deliberations. In the first two instances, defense counsel specifically waived Michael Taylor's presence on the record. The third instance involved the following questions from the jury during their deliberations on April 27, 1993: "What constitutes aggravated felony? Does aggravated felony include murder aggravated murder or not?" The court answered as follows: "Murder is an aggravated felony." While it is error for the trial court to give instructions to the jury in the absence of the accused, the record must affirmatively -28- reveal defendant's absence. However, certain communications with the jury during the deliberation stage may be harmless, notwithstanding the absence of the accused, where his counsel was present during the giving of the additional instructions and the instructions given were not erroneous. State v. Blackwell (1984), 16 Ohio App.3d 100 at paragraph one of the syllabus. In this instance, the record does not affirmatively reveal whether the defendant or defense counsel was present on April 27, 1993 when the trial court answered the jury's questions. Furthermore, the question is clearly only relevant to the aggravated felony specification which was properly before the court. While the murder is not an aggravated felony for the purpose of the aggravated felony specification, the definition was not necessary to the jury's decision finding Taylor guilty of aggravated murder. See discussion of Taylor's second supplemental assignment of error, supra, pp. 20-21. Accordingly, this court finds the communication between the jury and the trial judge on April 27, 1993 to be harmless error. In his tenth supplemental assignment of error, Taylor asserts he was denied a fair trial because of the prosecutor's improper cross-examination concerning his prior murder conviction. We disagree. Evid.R. 609(A) provides as follows: General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprison- ment in excess of one year under the law under -29- which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment whether based upon state or federal statute or ordinance. The trial court has broad discretion to determine the extent of cross-examination under Evid.R. 609(A). State v. Wright (1990), 48 Ohio St.3d 5. The credibility of a witness may be attacked during cross-examination by eliciting from the witness the fact that he has been convicted of a prior crime. State v. Dussell (June 10, 1993), Cuyahoga App. No. 62457, unreported (Held cross- examination of defendant as to prior murder conviction harmless error where defendant admitted to prior conviction during direct examination and scope of cross-examination was limited). Furthermore, a prosecutor may use cross-examination to rebut false or incomplete statements regarding the defendant's criminal record. See State v. DePew (1988), 38 Ohio St.3d 275 at paragraph three of the syllabus (Involved rebuttal in penalty phase of capital case). On direct examination in the present case, Taylor testified he was convicted of murder in 1974, but did not reveal the conviction was for two counts of murder. On cross-examination, the trial court permitted the prosecutor to question Taylor as to how many people he had killed. Because Taylor's testimony on direct examination only revealed a conviction for murder, the jury was given incomplete information, and it was proper for the prosecutor to elicit from Taylor on cross-examination his prior conviction was for two counts of murder. Accordingly, the trial court did not -30- abuse its discretion in permitting the prosecutor's cross- examination. In his twelfth supplemental assignment of error, Taylor asserts he was denied a fair trial because the trial court permitted an abusive cross-examination of defense witness Sandra Paul. Taylor reasons the prosecutor asked questions which assumed prior inconsistent statements that were not proven. Where, upon, cross-examination, the examiner confronts the witness with an alleged prior inconsistent statement, and the witness denies having made such a statement, there is no requirement that extrinsic evidence be introduced to establish the existence of the statement unless there is an indication that the impeaching question was posed without a good faith belief that such an inconsistent statement had been made. Rather where a witness denies having made the prior inconsistent statement, impeachment is complete upon introduction of extrinsic evidence of such statement. If no evidence of the prior statement is adduced, however, there is simply no evidence before the court to impeach the witness' testimony, and the jury should be cautioned that statements by counsel which are unsupported by the evidence are not to be considered. State v. Minor (1988), 47 Ohio App.3d 22 at paragraph two of the syllabus. Where the witness denies having made the prior inconsistent statement, no evidence of a prior inconsistent statement is introduced, and no curative instruction is given, error is not prejudicial unless if effects a substantial right of the defendant. Id. at 28. In the present case, there is no evidence the prosecutor cross-examined Sandra Paul without a good faith belief of the truth -31- of the prior statements. The prosecutor questioned Paul about her written statement to the police. Paul indicated her written statement did not include everything that happened on the night in question. The prosecutor questioned Paul further about written statements made to the police and about oral statements made to Denise Shephard prior to the night in question. Paul denied the statements, but the record does not indicate a curative instruction was requested or given. Reviewing the entire cross-examination, it is clear when Sandra Paul was asked questions about prior statements, she was also given an opportunity to fully explain her answers. Accordingly, the lack of a curative instruction was harmless error, and Taylor's substantial rights were not effected. In his thirteenth supplemental assignment error, Taylor asserts he was denied a fair trial because the trial court admitted into evidence photographs of the victim with wires through his body indicating the path of the bullet holes. The test for admitting gruesome photographic evidence in capital cases is twofold. "Does the probative value of the photographs outweigh their prejudicial impact, and second, are the photographs repetitive or cumulative in number? Either a negative response to the first question, or a positive response to the second question will mean that the photographic evidence is inadmissible in a capital prosecution." State v. Thompson (1987), 33 Ohio St.3d 1, 9. See, also, State v. Morales (1987), 32 Ohio St.3d 252; State v. Maurer (1984), 15 Ohio St.3d 239. -32- In the present case, there were seven gruesome photographs of the deceased victim with wires through his body indicating the path of the bullet holes. The wires through the victim's body were placed there to demonstrate the angle of the shot fired and where the bullet entered the victim's body. The information with respect to the angle and the location of the bullet holes was important to prove specific intent because Taylor claimed he acted in self- defense. The photographs tend to refute any claim of self-defense. Therefore, the probative value of the photographs outweigh their prejudicial impact. There are sixteen photographs of the deceased victim's body. Seven of the photographs show the victim's body with wires through the bullet holes. Six of the photographs each shows a different bullet hole; the seventh photograph was taken at a different angle but shows the same bullet hole with a wire through it as one of the other photographs. Thus, the one photograph is cumulative. The photographs taken using the wire are also cumulative in as much as photographs of the deceased victim's body were presented without wires through the bullet holes. Notwithstanding the cumulative nature of these photographs, we find the jury would have convicted Taylor even if the cumulative photographs had not been shown. See Thompson at 9. Therefore, the showing of the cumulative photographs was not prejudicial, and did not deny Taylor a fair trial. In his fourteenth supplemental assignment of error, Taylor asserts his sentence of death was unconstitutional because the -33- specification did not exist at the time of the commission of the aggravating circumstance. Taylor asserts the use of a prior conviction as an aggravating circumstance, which was committed prior to the effective date of R.C. 2929.04, is an ex post facto and retroactive application of the law. We disagree. Article I, Section 10 of the United States Constitution and Section 28, Article II of the Ohio Constitution prohibit the General Assembly from passing retroactive laws. The critical date in determining whether a penalty enhancement statute is applied ex post facto is "the date of the crime for which the enhanced penalty has been imposed, not the date of the act upon which the enhancement is based." State v. Ford (July 27, 1994), Summit App. No. 16427, unreported, citing Gryger v. Burke (1948), 334 U.S. 728; State v. Blackburn (1893), 50 Ohio St. 428. See, also, State v. Rorrer (Feb. 10, 1988), Summit App. No. 13227, unreported. Taylor submits United States v. Meeks (C.A.2, 1994), F.2d , 1994 U.S.App. Lexis 13248, as authoritative. Nonetheless, the holding of the United States Court of Appeals Second Circuit is clearly consistent with the holding in Ford. The court noted as long as the second offense occurs after passage of the penalty enhancement statute, there is no ex post facto application of the law. Id. citing United States v. Panebianco (C.A.2, 1976), 543 F.2d 447, 453 n.4, cert. denied (1977), 429 U.S. 1103. -34- In the present case, the crime of aggravated murder for which Taylor is charged occurred after the enactment of R.C. 2929.04. Therefore, there was no ex post facto application of the law. Taylor also asserts R.C. 2929.04(A)(5) is vague and indefinite, but fails to clearly articulate the basis for his argument. Nonetheless, the Supreme Court of Ohio has found R.C. 2929.04(A)(5) was not void for vagueness under the United States and Ohio Constitutions. State v. Benner (1988), 40 Ohio St.3d 301. Accordingly, this argument has no merit. In his fifteenth supplemental assignment of error, Taylor asserts he was denied due process when he was sentenced to death because the application of the aggravating circumstance was irrational, arbitrary and capricious. The use of enhancement penalties based upon prior convictions does not violate the right to due process under the United States and Ohio Constitutions. State v. Lipford (Dec. 7, 1989), Cuyahoga App. No. 56027, unreported. "A trial court has broad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the trial court abused its discretion. State v. Yontz (1986), 33 Ohio App.3d 342. The guidelines are not arbitrary or unreasonable, but rather, depict the General Assembly's concern in balancing the public's need with the defendant's chances for rehabilitation." Id. Accordingly, this assignment of error has no merit. -35- In his sixteenth supplemental assignment of error, Taylor asserts he was unconstitutionally subjected to multiple punishments for the same offense. We disagree. He argues the use of his prior offense violates the Double Jeopardy clause of the United States and Ohio Constitutions. The double-jeopardy test prohibiting multiple punishments, as set forth in Blockburger v. United States (1932), 284 U.S. 299, is a rule of statutory construction that merely prevents the sentencing court from imposing a greater penalty than the legislature intended. State v. Moss (1982), 69 Ohio St.2d 515. Where there is a clear indication that the legislative intent is to permit cumulative punishments, the Blockburger rule does not control. Moss, supra; State v. Wiggins (May 22, 1991), Hamilton App. No. C-900210, unreported. State v. Lucky (Aug. 21, 1991), Hamilton App. Nos. C-900746, C- 900750, unreported. A careful reading of R.C. 2929.04 clearly indicates the General Assembly intended to permit cumulative punishments. Accordingly, this argument has no merit. Taylor also asserts the imposition of the death penalty interferes with the constitutional right of the governor to grant a commutation of sentence because the sentence in his prior conviction, which forms the basis of the aggravating circumstance, was commuted. "The Ohio Supreme Court has long recognized the distinction between pardon and commutation. The third paragraph of the syllabus of In the matter of Sarah M. Victor (1877), 31 Ohio St. 206, states 'commutation is not a conditional pardon, but the substitution of a lower for a higher grade of punishment.'" -36- Wilkinson v. Maurer (Apr. 8, 1993), Franklin App. Nos. 92AP-674, 92AP-675, 92AP-677, 92AP-678, 92AP-680, 92AP-1297, unreported. See, also, State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513, 521-522. A commutation does not relieve a defendant of the collateral disabilities which follow from a felony conviction. Id. In the present case, the sentence for Taylor's prior convic- tion of murder was commuted by Governor James A. Rhodes. Nonethe- less, the commutation did not relieve Taylor of any collateral disability. Use of the prior conviction as an aggravating circumstance or as penalty enhancement is a collateral disability which remains after commutation of a sentence. Accordingly, the use of the prior murder conviction as an aggravating circumstance under R.C. 2929.04 did not interfere with the Governor's right to grant a commutation of sentence. In his seventeenth supplemental assignment of error, Taylor asserts he was unconstitutionally convicted of the murder specification because the sentence for murder was commuted. Because the commutation of Taylor's prior offense did not relieve him of any collateral disability, Taylor stood convicted of two counts of murder, and they were properly used as an aggravated circumstance in this case. See Wilkinson, supra. Accordingly, this assignment of error has no merit. In his nineteenth supplemental assignment of error, Taylor asserts he was denied effective assistance of counsel. In order to prove ineffective assistance of counsel, a defendant must show that trial counsel failed to perform his duties reasonably and that, but -37- for trial counsel's unprofessional errors, the outcome of the trial would probably have been different. Strickland v. Washington (1984), 466 U.S. 668. "Judicial scrutiny of counsel's performance must be highly deferential. ***[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 101, quoting Michel v. Louisiana (1955), 350 U.S. 91 at 101. Taylor asserts his defense counsel at trial was not effective because he failed to request a bifurcation of the guilt phase of the trial under R.C. 2941.142 and have the prior murder conviction tried to the bench instead of the jury. "R.C. 2941.142 sets out the form of the specification and the proof necessary to establish a prior conviction for purposes of imposing a sentence of actual incarceration pursuant to R.C. 2929.11. By their own terms, neither of these sections applies to persons convicted of murder." State v. Banks (1992), 78 Ohio App.3d 206 at 210. The language of R.C. 2941.142 and 2929.11 also do not apply to aggravated murder. The statute for bifurcation applicable to a prior conviction as an aggravating circumstance in a capital cases is R.C. 2929.022(A). Thus, the failure to move for bifurcation of the prior conviction in the guilt phase of this trial could not form the basis of ineffective assistance of counsel. Had the prior murder conviction been bifurcated under R.C. 2929.022(A), it would have compromised defense counsel's trial strategy which included Taylor testifying that he acted in self- defense. Taylor's prior conviction would have been available to -38- impeach his testimony when he took the stand. See Banks at 215. It was sound trial strategy to have Taylor testify to his prior conviction on direct examination to diffuse the prosecutor's cross- examination. Thus, defense counsel's trial strategy would not have been served by attempting to conceal the prior conviction from the jury during the guilt phase of the trial. Taylor next asserts the failure to raise his paranoia personality disorder at the guilt stage of the trial was ineffective assistance of counsel. Psychiatric testimony is inadmissible for purposes unrelated to the insanity defense. See State v. Wilcox (1982), 70 Ohio St.2d 182. Except for a narrow exception in cases involving the battered woman syndrome, expert testimony regarding a defendant's state of mind is inadmissible to prove self-defense. State v. Coulter (1992), 75 Ohio App.3d 219, 229. Therefore, the failure to present such evidence may not serve as a basis for a claim of ineffective assistance of counsel. Taylor also asserts the failure to raise the issue of commuta- tion as a defense at trial was ineffective assistance of counsel. Because the commutation of Taylor's prior offense did not relieve him of any collateral disability, See Wilkinson, supra, this argument has no merit. Taylor failed to produce any evidence tending to overcome the presumption that his trial counsel exercised sound trial strategy. Therefore, this court need not reach the question of whether the outcome of the trial would have been different. Accordingly, Taylor was not denied effective assistance of counsel. -39- In his fifth assignment of error and his eighteenth supplemental assignment of error, Taylor asserts the trial court erred in determining the aggravating circumstance outweighed the factors in mitigation because the trial court failed to give proper weight to the mitigation factors presented. "While R.C. 2929.04(B)(7) evinces the legislature's intent that a defendant in a capital case be given wide latitude to introduce any evidence the defendant considers to be mitigating, this does not mean that the court is necessarily required to accept as mitigating everything offered by the defendant and admitted. The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight." State v. Steffen (1987), 31 Ohio St.3d 111 at paragraph two of the syllabus. See, also, State v. Stumpf (1987), 32 Ohio St.3d 95. Thus, there is no error in the trial court's failure to give weight to every mitigating factor presented. We now turn to our obligation under R.C. 2929.05(A) to review and independently weigh "***whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in this case***." The aggravating circumstance in this case is set forth in R.C. 2929.04(A)(5). It provides as follows: "Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender." Taylor's prior -40- conviction for two counts of murder clearly provides proof of an aggravating circumstance within the meaning of R.C. 2929.04(A)(5). The aggravating circumstance must be weighed against the nature and circumstances of the offense, the history, character, and background of the offender, and all of the factors set forth in R.C. 2929.04(B) which provides the following factors: (1) Whether the victim of the offense induced or facilitated it; (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (4) The youth of the offender; (5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death. In the present case, there was no evidence the victim induced or facilitated the offense or that Taylor was under duress, coercion, or strong provocation. Therefore, the first and second factors do not apply. Although evidence was presented concerning Taylor's paranoid personality disorder, there is no evidence he "***lacked substan- tial capacity to appreciate the criminality of his conduct or to -41- conform his conduct to the requirements of the law" at the time of the offense. Furthermore, a mere behavior or personality disorder does not qualify as a mental disease or defect within the meaning of R.C. 2929.04(B)(3). See R.C. 2929.04 (Committee Comment to H 511. See, also, State v. Lorraine (1993), 66 Ohio St.3d 414; State v. Seiber (1990), 56 Ohio St.3d 4. Nonetheless, it may be given some weight in mitigation as a part of the background of the defendant. Seiber at 9. See, also, State v. Simko (1994), 71 Ohio St.3d 483, 496. Expert testimony was offered in this case to show Taylor suffered from a paranoid personality disorder, but no evidence was offered to show he was suffering from the disorder at the time of the offense. Accordingly, the third mitigating factor does not apply. Taylor was forty four years of age at the time of the offense; therefore, his youthfulness under the fourth mitigating factor was not an issue. Taylor had a prior conviction for two counts of murder; there- fore, the lack of a significant prior criminal history under the fifth mitigating factor was not an issue. Taylor was the principal offender and therefore, the degree of his participation under the sixth mitigating factor was not an issue. Because Taylor's evidence in mitigation does not conform to any of the first through sixth factors, that evidence must be viewed to determine whether it is relevant to the sentence of death in accordance with the seventh factor. -42- We first consider the expert testimony of Rita J. Politzer, clinical psychologist. She testified Taylor had a paranoid personality disorder, which has never been treated before and is amenable to treatment. Although his disorder should be given some weight, it is impossible to determine what relevance, if any, it has to this offense in view of the fact there was no testimony to show Taylor was suffering from this disorder at the time of the offense. Moreover, Taylor's act of yelling "it was self defense" as he left the scene of the crime suggests he was not suffering from any disorder. Accordingly, this evidence should be and was properly given very little weight. Politzer also testified Taylor would be able to successfully adapt to prison life as exhibited through his prior incarceration. In view of the commutation of his previous sentence, such evidence deserves some weight in mitigation. See State v. Davis (1992), 63 Ohio St.3d 44, 50. To this end, this court distinguishes its independent review and takes exception with the view expressed by the trial judge that prior prison experience and adaptability to prison life is a mitigating factor in this case. We next consider the testimony of Taylor's previous employers, minister, the mother of his seven year old son, and sister. His employers testimony established Taylor was generally a hard worker. His minister argued the morality of the death sentence and stated he did not feel Taylor was deserving. The mother of his son and his sister established that his son needed him and his family -43- believed his defense of self defense. These factors deserve some weight in mitigation. Having reviewed all the facts and circumstances, and having weighed the various mitigating factors against the aggravating circumstance, we conclude the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. This court's final task is to determine whether the sentence of death is appropriate in this case. "In determining whether the sentence of death is appropriate, the court of appeals and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases." R.C. 2929.05(A). "The proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed." Steffen at paragraph one of the syllabus. In this case, there was a prior conviction for two counts of murder. After reviewing a number of other cases, we find the death sentence appropriate, proportionate, and not excessive when compared with other cases in which there was a prior conviction for a purposeful killing within the meaning of R.C. 2929.04(A)(5). State v. Carter (1992), 64 Ohio St.3d 218; State v. Evans (1992), 63 Ohio St.3d 231; State v. Davis (1992), 63 Ohio St.3d 44; State v. Spirko (1991), 59 Ohio St.3d 1; State v. Bradley (1989), 42 Ohio St.3d 136; State v. Mapes (1985), 19 Ohio St.3d 108. Accordingly, we affirm the conviction and the sentence of death. -44- Judgment affirmed. 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. PATTON, C.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -45- APPENDIX ASSIGNMENTS OF ERROR I. IMPOSITION OF THE DEATH SENTENCE VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITU- TION. II. THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT-APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL, PURSUANT TO RULE 29(A) OF OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFI- CIENT EVIDENCE THAT THE OFFENSE WAS COMMITTED WITH PRIOR CALCULATION AND DESIGN. III. WHETHER THE TRIAL COURT ERRED AND DENIED THE DEFENDANT-APPELLANT HIS RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF OHIO, BY PERMITTING THE INTRODUCTION INTO EVIDENCE OF A CLEARLY INCORRECT AND MISLEADING JOURNAL ENTRY, SHOWING A PRIOR CONVICTION OF AN AGGRAVATED FELONY. IV. WHETHER THE DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE CONSTI- TUTION OF THE STATE OF OHIO. BECAUSE OF THE INFLAMMATORY AND PREJUDICIAL COMMENTS OF THE PROSECUTING ATTORNEY MADE DURING ARGUMENT AT THE MITIGATION PHASE OF THE TRIAL. V. WHETHER THE JURY AND THE TRIAL COURT ERRED IN DETERMINING THAT THE AGGRAVATING CIRCUMSTANCES OF WHICH THE DEFENDANT, MICHAEL TAYLOR, WAS FOUND GUILTY OUTWEIGHED, BY EVIDENCE BEYOND A REASONABLE DOUBT, THE FACTORS IN MITIGATION AS SET FORTH IN SECTION 2929.04(B), OHIO REVISED CODE, AND ADVANCED BY MICHAEL TAYLOR, AND THEREBY IMPOSING THE DEATH PENALTY. -46- SUPPLEMENTAL ASSIGNMENTS OF ERROR I. THE DEFENDANT WAS DENIED PROCESS OF LAW WHEN THE COURT IMPROPERLY INSTRUCTED THE JURY CONCERNING VOLUNTARY MANSLAUGHTER WITHOUT PROPERLY ALLOCATING THE BURDEN OF PROVING MITIGATING CIRCUMSTANCES. II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE INDICTMENT IMPROPERLY INCLUDED AN AGGRAVATED FELONY SPECIFICATION WHICH HAD NO APPLICATION TO AN AGGRAVATED MURDER CHARGE AND THE JURY WAS THEREAFTER REQUIRED TO MAKE A FINDING ON THIS NON-EXISTENT AGGRAVATED FELONY SPECIFICATION IN THIS CASE. III. THE DEFENDANT WAS IMPROPERLY DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO BE PRESENT AT ALL OF THE PROCEEDINGS WHEN THE COURT TOOK VARIOUS ACTIONS, INCLUDING DISMISSAL OF JURORS AND THE ANSWERING OF QUESTIONS BY THE JURY, OUTSIDE THE PRESENCE OF THE DEFENDANT. IV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE AN UNCONSTITUTIONAL BURDEN- SHIFTING INSTRUCTION CONCERNING FLIGHT. V. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE JURY WAS UNCONSTITUTIONALLY INSTRUCTED CONCERNING THE ISSUE OF CAUSATION. VI. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE UNCONSTITUTIONAL INSTRUCTIONS CONCERNING THE INFLICTION OF A WOUND. VII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE CONFLICTING, CONFUSING AND CONTRADICTORY INSTRUCTIONS CONCERNING SPECIFIC INTENT. VIII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY RESTRICTED A CONSIDERATION OF A LESSER INCLUDED OFFENSE UNLESS THE DEFENDANT HAD BEEN FOUND GUILTY OF THE GREATER OFFENSE. IX. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR HEARING AT THE PENALTY PHASE WHEN THE PROSECUTING ATTORNEY MADE IMPROPER ARGUMENT TO -47- THE JURY APPEALING TO THEIR PASSION AND PREJUDICE. X. THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER CROSS-EXAMINATION OF THE DEFENDANT CONCERNING A PRIOR CONVICTION. XI. THE DEFENDANT WAS DENIED FUNDAMENTAL FAIRNESS AND HIS CONSTITUTIONAL RIGHTS WHEN EVIDENCE OF THE SPECIFICATION WAS OFFERED IN THE FORM OF A NUNC PRO TUNC ENTRY WHICH WAS ENTERED AND APPROVED WITHOUT THE PRESENCE OF THE DEFENDANT DURING THE COURSE OF THE TRIAL. XII. THE DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE COURT PERMITTED AN ABUSIVE CROSS-EXAMINATION OF DEFENSE WITNESS, SANDRA PAUL. XIII. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ADMITTED INTO EVIDENCE PHOTOGRAPHS OF THE DECEDENT WITH VARIOUS WIRES THROUGH THE BULLET HOLES. XIV. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN HE WAS SENTENCED TO DEATH FOR SPECIFICATION WHICH DID NOT EXIST AT THE TIME OF THE COMMISSION OF THE AGGRAVATING CIRCUMSTANCE. XV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED TO DEATH UNDER AN IRRATIONAL ARBITRARY AND CAPRICIOUS APPLICATION OF AN AGGRAVATING CIRCUMSTANCE WHICH AUTHORIZED THE IMPOSITION OF DEATH. XVI. THE DEFENDANT WAS UNCONSTITUTIONALLY SUBJECTED TO A MULTIPLE PUNISHMENT WHEN THE SENTENCE OF DEATH WAS IMPOSED BASED UPON A PRIOR CONVICTION FOR WHICH DEFENDANT HAD SERVED HIS SENTENCE AND WHICH SENTENCE HAD, IN FACT, BEEN COMMUTED BY THE GOVERNOR. XVII. THE DEFENDANT WAS UNCONSTITUTIONALLY CONVICTED OF THE SPECIFICATION OF MURDER WHEN HE NO LONGER STOOD CONVICTED OF THE STATUTORY OFFENSE OF MURDER. -48- XVIII. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE COURT UNCONSTITUTIONALLY RULED THAT THE AGGRAVATING CIRCUMSTANCE WAS NOT OUTWEIGHED BY THE MITIGATING CIRCUMSTANCE. .