COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66291 STATE OF OHIO, : : Plaintiff-Appellee : SUPPLEMENTAL : JOURNAL ENTRY vs. : AND : APPELLATE REVIEW ABDUL HAMIN AWKAL, : OF : DEATH SENTENCE Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-276801 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Richard J. Bombik Elaine Welsh George J. Sadd Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gordon S. Friedman FRIEDMAN & GILBERT 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 John S. Pyle Niki Z. Schwartz GOLD, ROTATORI & SCHWARTZ CO., L.P.A. 1500 Leader Building Cleveland, Ohio 44114 -3- NAHRA, J.: Pursuant to the requirements set forth in R.C. 2929.05(A), this Court certifies that it has reviewed the judgment, the sentences of death and all of the evidence contained in the record and enters the following independent findings: 1. The aggravating circumstances which the appellant was found guilty of committing outweigh the mitigating factors in this case; 2. The death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases and is, therefore, appropriate; 3. The evidence supports the findings by the trial jury and the trial judge that appellant was guilty of two counts of aggravated murder and the aggravating circumstances charged in the indictment beyond a reasonable doubt; and 4. The trial judge properly weighed the aggravating circumstances which the jury found appellant guilty of committing and the mitigating factors. BLACKMON, P.J., and JOSEPH J. NAHRA MATIA, DAVID T., J., CONCUR. JUDGE COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66291 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ABDUL HAMIN AWKAL, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-276801 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Richard J. Bombik Elaine Welsh George J. Sadd Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gordon S. Friedman FRIEDMAN & GILBERT 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 John S. Pyle Niki Z. Schwartz GOLD, ROTATORI & SCHWARTZ CO., L.P.A. 1500 Leader Building Cleveland, Ohio 44114 -3- NAHRA, J.: Defendant-appellant Abdul Hamin Awkal appeals his convictions and death sentences on two counts of aggravated murder with mass murder and firearm specifications. For the reasons set forth below, this court affirms. Appellant's convictions and death sentences stem from the January 7, 1992 shooting deaths of his estranged wife, Latife Awkal, and her brother, Mahmoud Abdul-Aziz. The incident took place at approximately 2:00 p.m. in the basement of the Lakeside ("Old") Courthouse in Cleveland, Ohio. The courthouse building contains, inter alia, the Domestic Relations Division of the Cuyahoga County Court of Common Pleas. Located in Room 52 on the basement level of the building is the Domestic Relations Court's "Family Conciliation Service," which facilitates custody and visitation issues in those divorce actions which involve children. The victims were killed in this room. As a result of the shootings of his wife and brother-in-law, appellant was charged with two counts of violation of R.C. 2903.01(A), Murder with prior calculation and design, with mass murder and firearm specifications, and two counts of violation of R.C. 2903.11, Felonious assault, also with specifications. At appellant's trial, the first state's witness, Dr. Robert Challener, deputy coroner, testified that he performed autopsies on the victims the day after the shootings. Dr. Challener stated that Mrs. Awkal, a 22-year-old woman, had sustained three gunshot wounds. The first wound he described was one to the mid-back; the -4- pellet had entered there and traveled upward and to the right, transecting the spinal cord and exiting the victim's body at the neck. The second wound was to the left breast; the stippling of the surrounding skin tissue indicated the muzzle-to-target distance was less than two feet. This wound demonstrated the pellet had perforated the victim's heart and diaphragm, bruised the right lung, and had torn the liver before existing the victim's right side. The third wound was to the victim's right breast; her left lung was perforated before the pellet exited the right side of her back. Dr. Challener also related his findings regarding the second victim, Mahmoud Abdul-Aziz, a 24-year-old male with extensive atrophy of his lower right leg. Mr. Abdul-Aziz had sustained four gunshot wounds and had undergone some hospital therapy before being pronounced dead. Only one of the four wounds had a corresponding exit wound. One wound was to the victim's left chest while the other three were located on the victim's left back area. The victim had died as a result of multiple perforations of the lung, liver, diaphragm, and gallbladder, and of tears of the spleen, aorta, small intestines and kidneys. Three pellets were recovered from this victim's body. Jeffrey Wagner, forensic scientist with the coroner's office trace evidence department, testified that he had performed trace metal detection and gunshot residue tests on the victims' hands and Walker tests on the victims' clothing. The clothing of the victims contained defects which corresponded to the entrance and exit -5- wounds on the bodies. The nitrates present near defects on Latife Awkal's clothing indicated one contact shot (the muzzle of the gun was held up against the victim when fired), a shot from twelve inches or less away, and a shot from more than two and a half feet away. On Mahmoud Abdul-Aziz, nitrates present on one defect indicated a muzzle-to-target distance of from twelve inches to two and a half feet. Gregory Kunz, Cleveland Police Department Homicide detective, testified he was assigned to investigate the shooting at 2:24 p.m. on January 7, 1992. When he arrived at the scene, the victims and appellant, who had been shot by a deputy sheriff, were still present. Latife was lying on the floor inside Room 52 and Mahmoud was being administered to by EMS technicians in the basement hallway; further down the hallway, appellant was also under EMS care. The department's Scientific Investigation Unit also responded and took photographs of the scene. Kunz testified four spent pellets and five shell casings were found inside Room 52 and one shell casing was found in the hallway. Appellant's weapon, a nine millimeter semiautomatic handgun, was also recovered. It was found to contain five live rounds of ammunition in the magazine and one in the chamber. In his pocket, appellant carried another full magazine containing thirteen live rounds of ammunition for the weapon. After appellant was taken to the hospital, Kunz inspected appellant's personal effects and, in addition to the extra magazine for the weapon, found the following pertinent items: -6- 1) a check in the amount of $4,200.00 signed by appellant and drawn on the Awkal's joint checking account, made payable to Ali Awkal (appellant's brother) and dated January 20, 1992; 2) a parking receipt from the parking garage adjacent to the courthouse stamped 1:48 p.m., January 7, 1992; 3) a sales receipt in the amount of $501.78 dated November 8, 1991, from North Coast Shooting Supply acknowledging appellant's purchase of a used "Browning Hi-Power" with serial numbers matching the weapon recovered at the scene; 4) an "authorization for Release of Medical Records" form from HMO Health Ohio for Zaynab Awkal, appellant's fifteen month old daughter, signed by appellant and dated November 19, 1991; 5) Zaynab Awkal's medical records from HMO Health Ohio; 6) an Ohio turnpike fare receipt dated January 7, 1992, showing entry on the turnpike at the Toledo gate at 10:46 a.m. and exit near Elyria at 11:45 a.m.; 7) a business card and credit card receipt dated November 8, 1991 from North Coast Shooting Supply; and 8) the business card of a domestic relations court Family Conciliation Service ("FCS") social worker with an appointment notated for Tuesday, January 7, 1992 at 2:00 p.m. Kunz visited appellant in the hospital on January 8, 1992. After being advised of his Miranda rights, appellant gave an oral statement. Appellant stated to Kunz that he had gone to the courthouse because there had been an appointment set for him and his wife, that he confronted his brother-in-law and told him "to profess that -7- Allah was the only God" and that when his brother-in-law did not do so, appellant pulled out his gun and shot the victims. In response to Kunz' query as to how appellant was shot, appellant "said at first that he thought he shot himself." Appellant admitted ownership of the gun. Kunz stated that some of the details in appellant's version of the incident conflicted with details given by other witnesses interviewed. Jack Bornfield, another homicide detective, testified that he had investigated appellant's car, which was found in the parking lot adjacent to the courthouse. Appellant's car was found to be unlocked. Inside the car the following items were found: 1) located in the rear seat area a "baby seat;" and 2) located in the trunk, a baby carriage, a nylon bag containing jars of baby food, packages of baby bottles, diapers, and some clothing. The items in the car's trunk "appeared to be new." Nancy Ralls was the next state's witness to testify. She stated she had been retained on October 15, 1991 by Latife Awkal to represent Latife in her divorce from appellant. Ralls filed Mrs. Awkal's complaint for divorce in the domestic relations court on October 17, 1991, contemporaneously filing a motion for a restraining order against appellant. Therefore, the domestic relations court issued a restraining order prohibiting appellant from taking funds from the couple's bank accounts without court approval. One of the bank accounts so encumbered was the one on which the check found in appellant's personal effects was drawn. -8- The check made out to appellant's brother was for nearly the whole amount in that account. Appellant and Latife had been married in April 1989 and had one child, Zaynab, born in September 1990. Appellant, through his attorney Barbara Roman, filed an answer and counterclaim for divorce, and also filed several motions, viz., a motion for a guardian ad litem for the child, a motion for a restraining order to prevent Latife from removing the child from the court's jurisdiction, and a motion for referral of the case to the FCS. The domestic relations court granted appellant's motions and set further hearing dates for December 1991. Ralls received a telephone call from Latife at her home office on Saturday, November 9, 1991. Latife was "very concerned" because appellant had threatened to kill her; Latife stated she had a new telephone number and requested Ralls take some action in the matter. Latife's call prompted Ralls to write a letter on November 11, 1991, to appellant's attorney. Ralls' letter referred to "threats of violence" in telephone calls made by appellant to Latife on November 8th and requested appellant's attorney to remind her client of the restraining orders in effect and to request he cease harassing Latife. The parties attended the court hearings held in December 1991. Latife attended these hearings with the couple's child and was accompanied by her brother Mahmoud, who helped her with English interpretation. The couple had their first scheduled meeting at the FCS on December 10, 1991; in her brief contact with the parties -9- at that time, Ralls perceived no "problems" between appellant, Latife, and Mahmoud. Ralls testified that by December 19, 1991, she and appellant's attorney had been able to reach temporary settlement agreements on such issues as spousal support, child support and visitation. She stated that as a result of these agreements, the domestic relations court issued an order permitting each party to take half of the money previously frozen in the couple's bank accounts. The parties were next scheduled to meet at the FCS on January 7, 1992 at 2:00 p.m. Ralls checked with Latife by telephone that morning to make sure Latife was still aware of that meeting. Margaret Williams, a domestic relations court employee, testified that she was working on the afternoon of January 7, 1992. At approximately 2:00 p.m., she was walking with a fellow-employee in the courthouse's south basement hallway en route to her friend's office when she noticed a man and a woman who held a baby sitting on a hallway bench. Williams paused to admire the baby, then continued on her way. Two to three minutes later, Williams heard shots in the hallway. She looked out of the office to see people and sheriff's deputies "running." She saw a man, later identified as appellant, standing further along the hallway with the baby in his arms. Williams saw appellant hold the gun to the baby's head and heard the deputies tell him to "put the baby down" before she retreated back into the office. Thomas Lucey, a Cleveland Police Department detective from the Scientific Investigation Unit, testified he had test-fired -10- appellant's gun with two of the live rounds found in it. The test- fired pellets matched those found in Mahmoud and also matched the spent pellets found at the scene. Several more witnesses to the shooting testified. Darryl Woods, an employee with the Cuyahoga County Central Services Division, was in the courthouse basement's Security Office at 2:00 p.m. on January 7, 1992. Woods heard gun shots, drew his gun, and looked out into the hallway to see appellant emerging from Room 52. Appellant put a gun into his belt, picked up a baby sitting on a hallway bench, and started walking west. Woods followed. Appellant turned when he reached the end of the south hallway and continued down the west hallway, passing a stairwell down which some sheriff's deputies were running. The deputies joined Woods at the bottom. Appellant stopped when he reached the end of the hallway, then started walking back toward Woods and the deputies. In response to the deputies' order to put down his weapon, appellant drew his gun and pointed it at the baby's chest. He also pointed it at his own head and stated he would shoot the baby, then shoot himself. Appellant then began backing away. He encountered some deputies before passing out of Woods' sight behind a basement pillar. A few seconds later, Woods heard a shot. Woods and his companions ran forward to see appellant on the floor. Woods searched appellant, then returned to Room 52. He checked Latife for vital signs and found none, so he then went to the other victim -11- to administer first aid and CPR while awaiting the arrival of the Emergency Medical Service. Russell Sherman, a county deputy sheriff, also testified to the events of the shooting. He had been one of the deputies who ran down the stairwell with weapons drawn to meet Woods after hearing what sounded like "cans dropping." Sherman corroborated Woods' testimony by stating that appellant stopped when he reached the hallway corner, turned, pulled out his weapon, started back toward the men at the stairwell, at that point moving the gun "back and forth" both at the baby and himself and stating he would shoot himself and her. Another deputy approached appellant from his "blind side." That deputy attempted to knock appellant's weapon away. After appellant was shot, Sherman kicked appellant's gun away, noticing at that time that it was "still cocked." Henry Van Dame, the deputy sheriff who had shot appellant, testified that he was constrained to do so by the circumstances of appellant's pointing of the gun to the child and resisting when Van Dame tried to take the weapon from him. Before taking that action, Van Dame had seen the victims on the floor of Room 52 and had seen all the other deputies attempting to prevent appellant's escape. Mary Jo Todia, a secretary for the FCS, testified as to the events in Room 52. She was at her desk in the FCS office at about 2:00 p.m. when she heard "panicked voices" in the hallway just outside the door. She then saw three people come into the room, viz., a man, followed by a woman, followed by another man "firing at them." Appellant was the man with the gun; he fired at the -12- other man first, who fell to the floor, then at the woman a "couple of times," then at the man on the floor again. Appellant was approximately four feet from the male victim and two feet from the female when he shot them. Todia took cover under her desk as appellant was shooting, only emerging as appellant left. John Winchester, director of the FCS, testified he came out of his own office at that time, saw the victims on the floor, and saw his two secretaries were also there. The other secretary, Ruth Lowrey, testified she had recognized Mahmoud and Latife from their previous visit to the FCS when they ran into the room. Lowrey testified Mahmoud fell inside the office by her file cabinet, and that she saw appellant shoot Latife "a couple of times at close range" before running out. Omar Abdul-Aziz, the victims' brother, testified next. He stated he became acquainted with appellant in March 1989 just before appellant married his sister. Appellant's family lived in the Detroit area with a few more relatives in Windsor, Ontario, Canada. Abdul-Aziz became aware of Latife's marital problems only when she came to live with him and his brother Mahmoud on October 18, 1991. He stated he had not had much contact with the couple and had not previously had "problems" with appellant, but on the morning of November 9, 1991, he received a telephone call from appellant. Appellant told him, "You are going to pay blood for this and I am going to kill you and all of your family and I am going to run away out of the country," then hung up. Abdul-Aziz -13- testified that although he and his family were Moslem, they were not very strict in their religious beliefs. The last state's witness was deputy sheriff David Furst. He had run downstairs with deputy Sherman to confront appellant after the shootings. Furst's testimony corroborated the other accounts of appellant's actions as his attempt to leave the courthouse was frustrated: when exiting proved impossible, appellant took his gun out of his belt, pointed it at his own head and the baby's, and stated, "No one's going to take my baby." Appellant was shot when Van Dame was unable to "grab" his gun away. Following the presentation of the state's evidence, the trial court dismissed one of the felonious assault counts against appellant. The case then proceeded with several witnesses testifying on behalf of the defense. Appellant's uncle, Khodar Ahmad Jouhar, testified he lived in Windsor, Ontario, Canada. He stated that Latife and most of her brothers belonged to the same Shiite Moslem religious sect as his wife and, further, that they had beliefs which differed from those of other Moslems. Jouhar admitted, however, that to him Latife and her brothers did not seem "strict" in their beliefs and that there did not seem to be religious problems between the families. Appellant had visited his family in the Detroit area on the weekend of January 5 and 6, 1992, and appellant seemed "upset" about his marital problems. Jouhar also testified concerning Islamic "religious" divorces: the husband need only say to the wife "I divorce you" three times for one to occur. -14- Two brothers of the victims, Ali and Amer Abdul-Aziz, also testified for the defense. Ali Abdul-Aziz stated that he had been a friend of appellant's prior to the divorce proceedings and that he had been unaware of problems between appellant and his sister Latife. He also testified his family did not belong to any strict religious sect. Amer Abdul-Aziz corroborated Ali's testimony concerning these family matters. Nevel Fashoa, appellant's former employer, testified appellant had worked for him at his Michigan gasoline station in 1985. Fashoa recalled the appellant's final day on the job: Fashoa received a telephone call and arrived at his business to see appellant "hysterical," yelling and vomiting. Appellant was placed in handcuffs and a straightjacket before being transported to a "mental hospital." Fashoa later discovered appellant had become upset when another employee intimated Fashoa thought appellant was stealing from him. Appellant's brother, Ali Awkal, testified that he attended appellant's wedding to Latife. He stated that at the wedding, Ali Abdul-Aziz, whom he labeled "a religious fanatic," asked to speak privately and told him, "don't let my brother Mahmoud interfere with your brother's life, because if he does, he will ruin his life." Awkal also testified that appellant's difficulties with Latife were over "religion" and that Latife was very religious, refusing to take part in secular holidays with appellant's family. Awkal stated that concerning the incident which occurred in Michigan in 1985, he had seen appellant under restraints in the -15- psychiatric ward of the hospital. Awkal admitted that after appellant's wedding, the families celebrated at a "Holiday Inn." He also stated appellant owed him some money. Magdi Rizk, a court psychiatrist, testified he had evaluated appellant in March and April 1992 for competency to stand trial. At that time, he determined appellant was not competent to adequately assist in his own defense, therefore, he referred appellant to the Dayton Mental Health Center. Rizk testified that appellant had given him a history which led him to understand appellant's wife's family's "religiosity" was one of the major difficulties in the couple's relationship. Rizk stated that although it was his medical opinion appellant had been legally sane at the time of the act, appellant had had an "illusion" when the shootings occurred, required antipsychotic medication and was suicidal. Rizk diagnosed appellant as suffering from "major depression without psychosis." Rizk further testified that there was no indication that appellant suffered from any psychosis prior to the incident. Appellant testified in his own behalf. He described his upbringing and his emigration from Lebanon to America in 1984 at the age of 24. He was working for General Motors in Detroit when he was transferred to Cleveland in 1988. He met Latife through a relative and married her three months later. Appellant indicated his wife did not love him so he attempted to curry favor with her by doing things for her parents which went largely unappreciated. -16- Appellant stated his wife's family interfered with their relationship and that her brothers threatened him. He testified that Latife spent many nights away from him in her parent's home and eventually asked him to give her an Islamic divorce. After she left in October 1991, appellant went to see a "psychiatrist" for depression. Appellant testified he also bought a gun became Mahmoud threatened to kill him if he came to get his child. Appellant testified that on the day of the incident, his intention was to "take on my own life." He stated he first tried to reconcile with Latife but when she refused, he went to his car for his gun. Appellant stated he then returned, requested to hold Zaynab for "the last time," and was told by Mahmoud "she is not your baby and you are not going to see her again." Appellant stated, "I was suddenly enraged, I hate him . . . his face start changing to a monster and suddenly the walls started collapsing on me and I woke up in the hospital." Appellant stated he had no other memory of the incident and that he heard "voices" and saw visions when he was alone. On cross-examination, appellant admitted that Latife left him the day after she discovered she had contracted a venereal disease from him. He further admitted that in the Islamic faith, a woman cannot divorce her husband and that Latife's filing of a legal divorce made him angry. Appellant also acknowledged statements he made to his counselor when seeking psychiatric help in November, 1991, viz., he was planning to use a gun in committing suicide but could not buy -17- one because his wife had frozen his assets, his sadness was giving way to anger, and, by the last session, he was feeling better despite the "increasing acrimony" of the divorce. Appellant also admitted he had never made any suicide attempts and had had no hallucinations prior to the shooting. He further acknowledged that he made certain statements on January 11, 1992 to a court psychiatrist, viz., he had no past psychological or psychiatric history, he denied having hallucinations, and he was feeling "intense anger" and "homicidal" toward his wife and her family. The final witness to testify for the defense was Dr. Eileen McGee, a psychiatrist. Dr. McGee opined that appellant was "mentally ill with a disease called major depression and that at the time of the actual shooting incident he began having psychotic features to that illness . . . ." She testified appellant was hallucinating at the time of the shooting and was unable to know the wrongfulness of his act. The state presented the testimony of court forensic psychiatrist Dr. Edward Dutton in rebuttal. Dr. Dutton had evaluated appellant during trial at the court's request. He diagnosed appellant as having an adjustment disorder with depressed mood and believed appellant was "probably malingering," i.e., he was voluntarily producing symptoms of a disorder for gainful purposes. In Dr. Dutton's opinion, appellant did not have a mental disease or defect at the time of the shootings and knew the -18- wrongfulness of his act; he opined appellant operated solely out of anger. Based upon the foregoing evidence, the jury found appellant guilty of two counts of violation of R.C. 2903.01(A), murder with prior calculation and design, with mass murder and firearm specifications. Appellant was found not guilty of the remaining count of felonious assault. The trial then proceeded to the mitigation phase. Paul Hewitt, a psychologist with professional expertise in "social adjustment" problems, testified that appellant gave him a history which indicated appellant was beaten by his father as a child and had had "stressed" life experiences thereafter. These included confrontations, menial jobs, job relocation, layoffs, and the "fanaticism" of his wife's family. Hewitt opined that this religious fanaticism was disruptive to appellant's emotional stability and that since appellant "couldn't handle" stress, Mahmoud's actions during the incident "push[ed appellant] over" and "precipitated or facilitated the emotional problems [appellant] experienced." In Hewitt's opinion, since appellant still loved his wife even after she filed for divorce, her total rejection of him "would cause a snap or a sudden psychological break" and "by siding with her brother . . . created part of the problem." Hewitt believed appellant therefore acted out of "extremely strong" provocation from the victims. -19- Hewitt also opined that at the time of the incident appellant could not conform his conduct to the law, was not competent to know right from wrong and could not know what he was doing; rather, his action was a "spontaneous kind of thing" which was "provoked by the overall situation at the time." Orville Nichols, Jr. testified that he had had business dealings with appellant beginning in March 1991. Appellant seemed solicitous of his wife and devoted to his child. Appellant also requested the help of Mahmoud as an interpreter and the two had no obvious difficulties between them. Dr. McGee also testified, repeating her diagnosis that at the time of the shooting, appellant was suffering from "major depression with psychotic features." McGee stated Latife's "over- involvement" with her family facilitated the offense, the provocation was "very strong" and the victims' actions "flipped [appellant] back into a psychotic state." Finally, she opined appellant lacked the ability to conform his conduct to the law. Appellant gave an unsworn statement wherein he averred that as a child he had received three head injuries which caused unconsciousness. He indicated he had worked to improve his English and job skills since coming to this country but had problems keeping jobs because of his 1985 "block out" and then repeated lay offs. Appellant stated he had met Latife through a relative and married her three months later. She told him she did not love him and often left him. Mahmoud and Latife's other brothers threatened -20- him, wanting to "beat me up." Latife told him if he did not pray, she would divorce him. Appellant stated he gave Latife an Islamic divorce when she requested one, but that she became angry when he later reminded her of it, threatening to destroy his life because their baby was thereby made illegitimate. He stated Latife and her family tried to keep him from seeing the child. He decided to take his own life on the weekend prior to the shootings. Appellant did not give any indication of remorse for the deaths of his wife and brother-in- law. Dr. Salah Samy, appellant's treating psychiatrist while appellant was confined to the Dayton Mental Health Center, testified via videotape. Dr. Samy stated he first saw appellant on May 5, 1992. Appellant was withdrawn, complained of audio and visual hallucinations, had occasional suicidal thoughts, and felt "extreme guilt." Appellant had therapy sessions twice a week and was on a program of medication and activities designed to forestall hallucinations and suicidal inclinations. Dr. Samy opined that during the time of his treatment at the center, appellant was suffering from major depression, which he defined as a major mental illness. In his opinion, appellant was definitely not malingering. It was also Dr. Samy's opinion that at the time of the incident appellant "was deprived" of the "appropriate judgment and control on his behavior" when his mind "blanked." Moreover, Mahmoud "helped to initiate the incident" and Latife's refusal to -21- reconcile with appellant "may have participated in some way to the shooting." On cross-examination, Dr. Samy admitted appellant had never attempted to take his own life, no one on the Center's staff mentioned observing appellant's dream struggles, and that appellant had failed to tell him some details about his past and about his preparations before the shootings. Although he disagreed strongly with Dr. Dutton's report and conclusions regarding appellant, Dr. Samy could state only that "if [appellant] was telling me the truth, . . . he was not in control and developed [an] acute psychotic reaction at that moment . . ." but this assessment could not be conclusive with the information he had. Furthermore, Dr. Samy admitted that appellant reacted to stressful situations with violence and anger. The state then presented its witnesses at the mitigation phase. Dr. Dutton opined that on January 7, 1992 appellant did not have a mental disease or defect which would cause him to lack the capacity to conform his conduct to the law. Ali Abdul-Aziz testified his brother Mahmoud had come to the United States at the age of fourteen; at the time of the shootings he was a doctoral student at Case Western Reserve University who had little time for religious matters. Mahmoud aided Latife in the divorce proceedings after she moved in with them because she did not understand English as well as he did and because she did not have a car. To his knowledge, neither Latife nor Mahmoud were religious. Moreover, he had never observed any problems of a -22- religious nature between Latife and appellant, nor was he aware of any time that Latife spent a night at her parents house without appellant. He did, however, sense that she was troubled in the relationship about six months before she filed for divorce. Appellant testified in his own behalf in rebuttal. He stated Dr. Dutton saw him for only about fifteen minutes and during that time admonished appellant that he was not being truthful. Appellant testified he told Dr. Dutton he was "sorry" for the incident and that he missed his wife; however, he never said to Dr. Dutton he was "angry" at her. At the conclusion of the mitigation phase, the jury recommended appellant be sentenced to death. The trial court accepted the recommendation and imposed the death penalty. I. Appellant's first assignment of error states: THE EVIDENCE WAS CONSTITUTIONALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS BECAUSE IT FAILED TO PROVE THAT THE APPELLANT KILLED WITH PRIOR CALCULATION AND DESIGN. In a conclusory manner, appellant challenges the sufficiency of the evidence used to support his convictions for aggravated murder. He contends the evidence was sufficient only to demonstrate "a plan of abduction." The test for sufficiency of the evidence follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of -23- insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, citing Jackson v. Virginia (1979), 443 U.S. 307, 319. R.C. 2903.01(A), aggravated murder, states in pertinent part the following: (A) No person shall purposely, and with prior calculation and design, cause the death of another. The Ohio Supreme Court has repeatedly emphasized the test for prior calculation and design as enunciated in State v. Cotton (1978), 56 Ohio St.2d 8, paragraph three of the syllabus, 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. (Emphasis added.) See, also, State v. Moreland (1990), 50 Ohio St.3d 58; State v. Robbins (1979), 58 Ohio St.2d 74. In State v. Jenkins (1976), 48 Ohio App.3d 99, the following guidelines were set forth: The trier of fact must look to the context in which the killing occurred to determine whether there was prior calculation and design. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim was known to him[;] whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was -24- drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide. When the evidence adduced at trial establishes that the victim was unknown to the accused prior to the crime, and that there was little or no preparation, but rather that the crime was an instantaneous eruption of events, then . . . the evidence adduced at trial is legally insufficient ***. (Emphasis added.) In this case, the evidence demonstrated appellant killed two victims known to him against whom he harbored intense anger and resentment. It also proved that in November, approximately three weeks after his wife filed for divorce, appellant purchased a nine millimeter semiautomatic weapon; that same day and the next day he made telephone calls to both his wife and one of his brothers-in- law in which he threatened to kill them and leave the country. Approximately a week later, appellant requested copies of his daughter's medical records. In December, appellant attended court hearings and meetings which served to both familiarize him with the courthouse and Latife's habits and to underscore the finality of the break-up of his nuclear family. Two weeks later, on the day of the shooting, appellant changed his address to that of his parents' residence in Michigan. He came to the courthouse with a car loaded with baby-care items and carried his daughter's medical records and a post-dated check to his brother. Appellant also brought his weapon. He possessed two fully loaded "clips" for his gun, containing a total of twenty-six live rounds of ammunition. Moreover, his gun was fully loaded and -25- immediately operational when he confronted his wife and brother- in-law. He shot his wife three times and his brother-in-law four times, both of them in a way which caused massive damage to their internal organs. He then picked up his daughter and attempted to leave the courthouse with her. The court in State v. Moreland, supra, stated two requirements to support the element of "prior calculation and design," viz., (1) sufficient time and opportunity for the planning of the homicidal acts, and (2) circumstances which show a scheme to implement the calculated design to kill. Viewing the foregoing evidence in a light most favorable to the prosecution, those requirements existed in this case. It can be inferred that appellant conceived a plan to use a gun to kill his wife and his brother-in-law, then take his daughter and flee to his relatives in the Detroit area. Thus, as the court stated in State v. Clayton (1991), 61 Ohio St.3d 234 at 241, "[appellant's] acts could be viewed as going beyond the impulse of the moment to constitute prior calculation and design." See, also, State v. Nelson (July 3, 1991), Cuyahoga App. No. 58813, unreported; State v. Whitehead (Jan. 13, 1982), Hamilton Cty. App. No. C-810183, unreported. Therefore, the evidence met the test of sufficiency since construing the evidence and reasonable inferences therefrom in the light most favorable to the prosecution, any rational trier-of- fact could have found the elements of prior calculation and design beyond a reasonable doubt. State v. Martin, supra; State v. Moreland, supra; State v. Cotton, supra. -26- Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the weight of the evidence adduced at his trial does not support the element of prior calculation and design but does support the defense of insanity. Appellant cites State v. Mattison (1985), 23 Ohio App.3d 10, in support of his argument. In Mattison, this court stated that in making the determination whether the decision of a fact-finder is against the manifest weight of the evidence, several factors should be taken into account by the reviewing court. The stated factors were, however, "merely guidelines to be taken into account when weighing the evidence" and were not considered to be "hard and fast rules." Id. at 14. See, also, State v. Jordan (1992), 73 Ohio App.3d 524. The test to be applied when reviewing a claim that a conviction is against the manifest weight of the evidence was stated by the court in State v. Martin, supra, at 175 as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. -27- Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact; a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Eley (1978), 56 Ohio St.2d 169. The jury found appellant guilty of two counts of aggravated murder with mass murder and firearm specifications. The jury heard testimony from the following: the coroner, the forensic scientists, the investigating police detectives, Latife's attorney, numerous eye witnesses to the shootings and to the events immediately following, the victims' brothers, appellant's former employer, appellant's brother, three psychiatrists and appellant himself. The jury also viewed numerous exhibits, including the following: the coroner's report, photographs of the victims and their clothing and the crime scene, the weapon and the spent pellets and casings, the ballistics tests, and medical reports. A review of all this evidence reveals the state's case against appellant fit together neatly. The state presented a compelling -28- picture of a plan leading up to the killings of the defenseless victims. Appellant presented evidence to support his version of the incident, viz., that he was physically afraid of his in-laws, suffered from "illusions" and black-outs and had suicidal tendencies. However, his evidence was contradicted by his personal acquaintances and by two of the psychiatrists who testified. Both psychiatrists opined that appellant was sane at the time of the act. State v. Lorraine (1993), 66 Ohio St.3d 414. Based upon the evidence presented, the jury could properly find that appellant purposely and with prior calculation and design caused the deaths of Latife Awkal and Mahmoud Abdul-Aziz and that he was legally sane at the time of the act. Thus, the factors in State v. Mattison, supra, are met in this case. The state presented reliable credible evidence of appellant's guilt, and this court declines appellant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. This court, therefore, cannot say that on the basis of the evidence the jury "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, supra, at 175. The verdicts of guilty of two counts of aggravated murder with mass murder and firearm specifications were not against the manifest weight of the evidence. State v. Johnson (1992), 79 Ohio App.3d 343; State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported. -29- Accordingly, appellant's second assignment of error is overruled. III. Appellant's third assignment of error has two parts and provides as follows: ASSIGNMENT OF ERROR NO. III: THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. ASSIGNMENT OF ERROR NO. III(A): THE DEATH SENTENCES SHOULD BE VACATED BECAUSE THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE MITIGATION PHASE OF THE TRIAL. Appellant contends his counsel was constitutionally ineffective at both stages of his trial because he failed to present sufficient evidence to establish either an insanity defense or the existence of mitigating factors. Appellant cites Ake v. Oklahoma (1985), 470 U.S. 68 in support of his contention. The federal test for determining whether a defendant was denied effective assistance is whether the attorney's "conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington (1984), 466 U.S. 668. The focus in Ohio is whether the defendant received a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, paragraph four of the syllabus. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate -30- that his attorney's performance was deficient and "that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St.3d 136. See, also, State v. Evans (1992), 63 Ohio St.3d 231; State v. Lytle (1976), 48 Ohio St.2d 391, vacated on other grounds (1978) 436 U.S. 910. There is a strong presumption defense counsel performed competently. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Thus, appellant cannot meet his burden by making bare allegations which find no support in the record. State v. Smith (1985), 17 Ohio St.3d 98. Moreover, this court will not second-guess what could be considered to be matters of trial strategy. Id. Appellant first asserts defense counsel was deficient in pursuing an insanity defense without "competent" expert witnesses. In particular, appellant challenges counsel's attempted use of unlicensed psychologist Paul Hewitt, his use of Dr. Magdi Rizk, the court-appointed psychiatrist who had evaluated appellant for competency to stand trial, and his use of Dr. Eileen McGee, a relatively inexperienced psychiatrist. The record with regard to trial counsel's actions, however, fails to demonstrate either that counsel's performance fell below an objective standard of reasonableness or that appellant was prejudiced by his counsel's actions. The decision to call a witness during the course of trial is generally a matter of trial strategy. State v. Sandy (1982), 6 Ohio App.3d 37; State v. Hunt (1984), 20 Ohio App.3d 310; State v. -31- Saah (1990), 67 Ohio App.3d 86; State v. Coulter (1992), 75 Ohio App.3d 219. A review of the record in this case indicates defense counsel attempted to use Paul Hewitt's testimony in order to negate the state's evidence that the killings were the result of prior calculation and design. Hewitt's testimony would thus have been extremely helpful to appellant's case. With Hewitt's qualifications, it was not inevitable that the trial court would disallow him to testify. Evid.R. 702; Shilling v. Mobile Analytical Services, Inc. (1992), 65 Ohio St.3d 252; see, also, State v. Tomlin (1992), 63 Ohio St.3d 724. Therefore, counsel cannot be faulted for his attempt to use this witness. Similarly, it is clear defense counsel called Dr. Rizk in order to establish appellant's state of mind following the incident. Dr. Rizk found appellant incompetent to stand trial in April 1992. Counsel apparently calculated that by using this witness, appellant's state of mind at the time of the killings could be inferred by analogy. Although a review of Dr. Rizk's testimony reveals it could be construed as somewhat damaging to appellant's case, clearly counsel was skillful in handling this witness. It thus cannot be stated that counsel was deficient in calling Dr. Rizk as a witness on the issue of insanity. Finally, with regard to Dr. McGee, the record reveals defense counsel requested her to prepare a report immediately prior to the onset of trial. Her conclusion that appellant was insane at the time of the act then caused the prosecutors to "scramble" to find a witness to contradict it. Moreover, although Dr. McGee had no -32- previous experience as an expert trial witness, a review of her testimony indicates it was both reasonable and clearly extremely helpful to the defense. Obviously, considering the circumstances of the crime, defense counsel's strategy was to present an insanity defense since no other defense was available. Equally obvious from the record in this case is defense counsel's expertise in making the most of what little was available to him. The record demonstrates defense counsel was capable, well-prepared and zealous in his defense of his client. Effective assistance of counsel does not guarantee favorable results. State v. Hart (1988), 57 Ohio App.3d 4. In any case, in view of the overwhelming evidence of appellant's guilt, the record herein fails to show, with reasonable probability, that the jury's verdict would have been different had counsel called additional medical witnesses to testify concerning appellant's state of mind at the time of the incident. State v. Seokaran and Pooran (Apr. 8, 1993), Cuyahoga App. Nos. 62298, 62299, 63353 and 63354, unreported; cf., Ake v. Oklahoma, supra; State v. Brown (1992), 84 Ohio App.3d 414. Thus, appellant cannot support his claim he was denied effective assistance of counsel at trial. The foregoing discussion is equally applicable to the mitigation phase of the proceedings below. In order to establish the presence of mitigating factors, defense counsel called, inter alia, Paul Hewitt, Dr. Eileen McGee, and Dr. Salah Samy, appellant's treating physician at the Dayton Mental Health Center. All three of these witnesses testified that at the time of the -33- incident, appellant lacked substantial capacity to conform his conduct to the requirements of the law. See, e.g., State v. Lawrence (1989), 44 Ohio St.3d 24. Moreover, they each advanced the view that the victims either "facilitated" the crime or strongly provoked appellant by their behavior. In view of these witnesses' competence, and upon reviewing their testimony, it cannot be stated that their opinions were given no weight by the jury in considering the mitigating factors against imposition of the death penalty. Therefore, since appellant can demonstrate neither that trial counsel's actions fell below an objective standard of reasonable representation nor that he was prejudiced by trial counsel's actions, appellant has failed to support his claim he was denied his right to effective assistance of counsel. Accordingly, appellant's third assignment of error is also overruled. IV. Appellant's fourth assignment of error follows: THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF NANCY RALLS CONCERNING STATEMENTS ALLEGEDLY MADE BY THE APPELLANT'S DECEASED WIFE. Appellant argues the trial court improperly admitted hearsay statements through the testimony of Latife Awkal's attorney Nancy Ralls. Ms. Ralls testified that on Saturday morning, November 9, 1991, Mrs. Awkal telephoned to state appellant had called her seven times on the previous evening and had made threats to her life if -34- she continued to pursue the divorce action. Ms. Ralls also stated that the victim's tone when she related this was "very concerned." The following Monday, therefore, Ms. Ralls wrote a letter about the matter to appellant's attorney. Appellant asserts that pursuant to Evid.R. 805, Ms. Ralls' testimony was inadmissible "double hearsay." The decision that evidence fits within a hearsay exception is left to the broad discretion of the trial court. State v. Smith (1986), 34 Ohio App.3d 180. The record does not reflect an abuse of discretion in this case. Rather, a review of the disputed testimony reveals the trial court correctly concluded it comports with the exception to the hearsay rule set forth in Evid.R. 803(3) as follows: RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * * (3) Then existing, mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (Emphasis added.) Ms. Ralls' testimony was similar to that which has been found to be admissible by the Ohio Supreme Court in State v. Apanovitch (1987), 33 Ohio St.3d 19 at 21-22 and State v. Simko (1994), 71 -35- Ohio St.3d 483 at 491. Ms. Ralls' testimony revealed the victim's fear led her to telephone her attorney in order to discover what steps could be taken to protect herself from appellant in the future. Moreover, this testimony also served to explain Ms. Ralls' own actions taken in response to the victim's call. See, e.g., State v. Maurer (1984), 15 Ohio St.3d 239 at 262; State v. Price (1992), 80 Ohio App.3d 108. The reliability of this evidence was supported by other evidence which demonstrated the following: 1) appellant had purchased his weapon the day he made threats to the victim; and 2) appellant made threats against the victim's family to her brother Ali on November 9, 1991, the same day Ms. Ralls received Mrs. Awkal's call. In any case, assuming arguendo the testimony was improperly admitted, since the other evidence in this case was overwhelming, any error in its admission was harmless beyond a reasonable doubt. State v. Simko, supra; cf., State v. Sorrels (1991), 71 Ohio App.3d 162. Accordingly, appellant's fourth assignment of error is also overruled. V. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED IN REFUSING TO PERMIT DR. PAUL HEWITT TO TESTIFY AT THE GUILT DETERMINING PHASE OF THE TRIAL. -36- Appellant contends the trial court improperly refused to permit Paul Hewitt, a psychologist, to testify at trial. At the time of appellant's trial, Evid.R. 702 provided as follows: RULE 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. On appeal, a trial court's ruling with respect to a witness' qualifications as an expert will not be reversed unless the trial court clearly abused its discretion. Evid.R. 104(A); State v. Tomlin, supra; Kitchens v. McKay (1987), 38 Ohio App.3d 165; Vinci v. Ceraolo (1992), 79 Ohio App.3d 640; see, also, State v. Bidinost (1994), 71 Ohio St.3d 449 at 453. In this case, Hewitt testified that he had a degree in "organizational and industrial" psychology and that he worked for a company which did psychological evaluations for occupational purposes. Hewitt did not have his own license in clinical psychology. The issue for the jury to decide was appellant's sanity at the time of the offense. "Insanity" as set forth in R.C. 2901.01(N) requires a finding that a defendant is suffering from "a severe mental disease or defect." Since Hewitt was neither a medical doctor nor acquainted with appellant prior to the time of the incident, he could not offer testimony which would assist the jury -37- in determining this issue. See, e.g., Shilling v. Mobile Analytical Services, Inc., supra; State v. Buell (1986), 22 Ohio St.3d 124; cf., State v. Tomlin, supra; State v. Reynolds (1988), 49 Ohio App.3d 27. Hence, the trial court did not abuse its discretion in disqualifying him as a witness. Furthermore, a review of Hewitt's testimony up to the time he was disqualified by the trial court reveals he would have testified that at the time of the incident, appellant could not form the specific intent necessary to commit the crime of aggravated murder. Such testimony, since it would have tended to establish only appellant's "diminished capacity" rather than his insanity, was inadmissible. State v. Curry (1989), 45 Ohio St.3d 109; State v. Luff (1993), 85 Ohio App.3d 785. For the foregoing reasons, the trial court did not err in refusing to permit Hewitt to testify at the guilt phase of appellant's trial. Therefore, his fifth assignment of error is also overruled. VI. Appellant's sixth and twelfth assignments of error are related and are thus addressed together as follows: ASSIGNMENT OF ERROR NO. VI: THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING THE PROSECUTOR TO CROSS EXAMINE DR. EILEEN MCGEE CONCERNING THE APPELLANT'S PRESENT SANITY AND ALLOWING THE PROSECUTOR TO ARGUE THAT THE APPELLANT WOULD "WALK OUT THE DOOR" IF HE WAS FOUND NOT GUILTY BY REASON OF INSANITY. -38- ASSIGNMENT OF ERROR NO. XII: THE TRIAL COURT COMMITTED PLAIN ERROR IN THE MITIGATION PHASE OF THE TRIAL BY PERMITTING THE PROSECUTOR TO ARGUE THAT THE APPELLANT DEMONSTRATED NO REMORSE. Appellant argues prosecutorial misconduct during both the guilt and penalty phases deprived him of his right to a fair trial. Generally, conduct of the prosecutor at trial shall not be a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. Appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether appellant was deprived of a fair trial, this court must determine whether absent the improper questions or remarks, the jury would have found appellant guilty. State v. Maurer, supra, at 267. Appellant first asserts the prosecutor asked irrelevant and prejudicial questions of Dr. McGee concerning appellant's sanity at the time of trial during the guilt phase. Since appellant raised no objection during this questioning, this court must determine whether plain error was committed. State v. Coleman (1989), 45 Ohio St.3d 298 at 301. A review of the challenged exchange reveals the prosecutor was merely testing Dr. McGee's credibility with regard to her diagnosis of appellant, hence, the questions were not improper. Evid.R. 611(B). -39- Appellant also contends that certain comments made during closing argument in the guilt phase were prejudicial because they indicated appellant would "go free" if the jury determined he was insane. The prosecutor argued as follows: MR. BOMBIK: Oh, McGee. Thank you. Dr. Eileen McGee, the new kid on the block, who has never testified before on the issue of sanity. A last minute attempt, as I characterized it in the beginning, she comes in here and says, well, she sees this guy on October 22nd, she basically reviews a bunch of records, she asks for other reports, she doesn't get the other reports, and she writes an opinion on October 27th, which is one day after this trial started. Talk about someone trying to, a new gun slinger in town trying to establish a reputation. Board certified pediatrician, that's a baby doctor. Oh, I have been in psychiatry for a year and a half. Are you a forensic psychiatrist? No. And she comes in here -- one of the most irresponsible acts I've ever seen. She comes in here and says for a brief moment that this guy hallucinated on January 7th and as a result of that he was legally insane, but he is now sane, so let him walk out that door. We'll talk more about her later. Once again, appellant failed to object to these remarks. State v. Rahman (1986), 23 Ohio St.3d 146 at 153. Moreover, in context, it is clear the prosecutor was merely pointing out the weaknesses in Dr. McGee's testimony since she had in effect testified appellant was not responsible for his actions. See, e.g., State v. Durr (1991), 58 Ohio St.3d 86. Finally, appellant contends the prosecutor improperly commented during the sentencing phase on appellant's lack of remorse. However, the remarks made by the prosecutor in this case were similar to those reviewed by the court in State v. Jackson (1991), 57 Ohio St.3d 29. In Jackson, the court stated that since -40- the trial court correctly instructed the jury and the prosecutor's other remarks were not crucial, the defendant was not denied his right to a fair trial. Citing State v. Maurer, supra, the Jackson court further noted, "reversal cannot be premised on every intemperate remark by counsel." Similarly, when viewing these comments in this case in their entirety and in the context of the trial, it was obvious appellant was not denied his right to a fair trial. Since the Jackson court did not find similar comments warranted reversal, this court is also not persuaded by appellant's contention. Accordingly, appellant's sixth and twelfth assignments of error are overruled. VII. Appellant's seventh assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING DR. DUTTON TO TESTIFY THAT THE APPELLANT WAS MALINGERING. Appellant again invokes the doctrine of plain error to argue that a portion of Dr. Dutton's testimony, viz., that in his professional opinion appellant was malingering, was improper. Appellant contends this testimony violated Evid.R. 404(A)(1) and was merely a comment on appellant's credibility. Appellant also complains that the prosecutor relied on Dr. Dutton's testimony in closing argument. Although appellant failed to object to either the testimony or closing argument, this court nevertheless has reviewed the record for plain error. State v. Coleman, supra. None is found. -41- In his defense, appellant presented the testimony of Dr. McGee who stated appellant was insane at the time of the act. Dr. Dutton was presented as a rebuttal witness. A review of his testimony reveals he made no comments on appellant's character. Rather, he made a medical diagnosis that appellant's claims of hallucinations were consistent not with psychosis, as Dr. McGee had opined, but with malingering, i.e., the voluntary production of psychological symptoms for gainful purposes. Since this testimony was helpful to the jury in deciding an ultimate issue, it was not improperly introduced. R.C. 2945.10(D); Evid.R. 607. Furthermore, scrutiny of the prosecutor's statements on this point in closing argument indicates only that he was properly commenting on the evidence. State v. Cooper (1977), 52 Ohio St.2d 163, 173-174. Hence, appellant's seventh assignment of error also lacks merit and is overruled. VIII. Appellant's eighth and ninth assignments of error are addressed together as follows: ASSIGNMENT OF ERROR NO. VIII: GRUESOME PHOTOGRAPHS OF THE BODIES OF THE VICTIMS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AT THE TRIAL BECAUSE THEIR PREJUDICIAL IMPACT OUTWEIGHED ANY PROBATIVE VALUE. ASSIGNMENT OF ERROR NO. IX: AT THE MITIGATION PHASE OF THE TRIAL, THE GRUESOME PHOTOGRAPHS OF THE VICTIMS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE. -42- Appellant contends the autopsy photographs of the victims were improperly introduced during the guilt phase of his trial pursuant to Evid.R. 403(A) and were improperly reintroduced during the penalty phase pursuant to the court's opinion in State v. Thompson (1987), 33 Ohio St.3d 1. Appellant also contends the admission of this evidence was error of constitutional dimension. Neither of these contentions can be sustained. The admission of photographic evidence is a decision left to the discretion of the trial court. State v. Jackson, supra. In State v. Maurer, supra, the court stated the following: Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number. Id. at paragraph seven of the syllabus. A review of the record in this case demonstrates the autopsy photographs show the entrance and exit wounds sustained by the victims and thus illustrate the testimony of Dr. Challener and the other forensic experts. Moreover, the photographs show different perspectives to further illustrate the testimony and are thus neither repetitive nor cumulative. Furthermore, the trial court did not admit the photograph which showed Mahmoud's leg brace. Therefore, the trial court did not abuse its discretion in admitting this evidence and appellant was not denied his constitutional rights. State v. Morales (1987), 32 Ohio St.3d 252 at 257-258; cf., State v. Watson (1991), 61 Ohio St.3d 1 at 7. -43- With regard to appellant's contention the photographs were improperly readmitted during the penalty phase of his trial, the court stated the following in State v. DePew (1988), 38 Ohio St.3d 275: Our decision in Thompson is being misconstrued, we assume unintentionally, as holding that the introduction of gruesome photographs in the penalty stage is reversible error. It is not. Thompson as meant principally to focus on the question of prosecutorial misconduct, especially the issue of commenting on a defendant's silence at any stage of the proceedings. In fact, we find that the introduction of photographs, even if gruesome, in the penalty stage is not error and is indeed authorized by R.C. 2929.03(D)(1), which provides in part that during the penalty stage, the court and the trial jury shall consider "*** any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing ***." In addition, this section provides that the court and the trial jury "*** shall hear testimony and other evidence that is relevant to the nature and circumstances of the aggravating circumstances the offender was found guilty of committing ***." (Emphasis added.) For the foregoing reasons, this court does not find the admission of the photographs to constitute prejudicial error. State v. Berry (Oct. 21, 1993), Cuyahoga App. No. 60531, unreported. Accordingly, appellant's eighth and ninth assignments of error are overruled. IX. Appellant's tenth, thirteenth, fourteenth and fifteenth assignments of error are addressed together as follows: ASSIGNMENT OF ERROR NO. X: IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO INSTRUCT THE JURY THAT IT WAS NOT REQUIRED TO UNANIMOUSLY FIND THE APPELLANT NOT GUILTY OF AGGRAVATED MURDER BEFORE IT CONSIDERED THE LESSER INCLUDED OFFENSE OF MURDER. -44- ASSIGNMENT OF ERROR NO. XIII: IT WAS PLAIN ERROR FOR THE TRIAL COURT TO PROVIDE NO INSTRUCTIONS TO THE JURY BEFORE THE BEGINNING OF THE MITIGATION PHASE OF THE TRIAL BECAUSE THE TOTALITY OF THE COURT'S INSTRUCTIONS ALLOWED THE JURY TO WEIGH NON- STATUTORY, AGGRAVATING CIRCUMSTANCES AGAINST MITIGATING CIRCUMSTANCES. ASSIGNMENT OF ERROR NO. XIV. IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO INSTRUCT THE JURY THAT EVIDENCE OF THE APPELLANT'S MENTAL ILLNESS SHOULD BE CONSIDERED AS A MITIGATING CIRCUMSTANCE REGARDLESS OF WHETHER THE MENTAL ILLNESS PREVENTED THE APPELLANT FROM REFRAINING FROM CRIMINAL CONDUCT. ASSIGNMENT OF ERROR NO. XV. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT A LIFE SENTENCE IS APPROPRIATE, ALTHOUGH THE AGGRAVATING CIRCUMSTANCE MAY OUTWEIGH THE MITIGATING CIRCUMSTANCES. In these assignments of error, appellant asserts the trial court erred in failing to give certain instructions to the jury during both the guilt and penalty phases of his trial. At the outset, this court notes appellant neither specifically requested these instructions nor objected to their omission. Crim.R. 30(A). Therefore, he has waived any claimed error on appeal unless the failure to include these instructions would have affected the outcome of the trial. State v. Underwood (1983), 3 Ohio St.3d 12, 13; State v. Long (1978), 53 Ohio St.2d 91. Appellant first argues the trial court's instruction on unanimity at the guilt phase was deficient. A review of this portion of the charge, however, reveals that it comports with the requirements set forth in State v. Thomas (1988), 40 Ohio St.3d 213 at 220 and State v. Muscatello (1977), 57 Ohio App.2d 231. -45- Appellant next argues the trial court erred in failing to provide cautionary instructions to the jury prior to the mitigation phase in regard to the weighing process it would undertake. Crim.R. 30(B) grants the trial court discretion in giving cautionary instructions. State v. Frost (1984), 14 Ohio App.3d 320. A review of the record reveals no abuse of the trial court's discretion in this matter. During opening statements, both the prosecutor and defense counsel indicated to the jury that at the proper time the trial court would instruct it as to its duties in the proceeding. Thus, the jury was put on notice that it was only to listen to the evidence presented rather than to "consider" it prematurely. This court has reviewed the instructions later given by the trial court and considers them to be accurate statements of the law. Therefore, it cannot be concluded that the failure to give initial cautionary instructions affected the outcome of appellant's trial. State v. Comen (1990), 50 Ohio St.3d 206 at 209-210. Similarly, this court has reviewed the trial court's instruction regarding the existence of a mental disease or defect as a mitigating factor. Since it was entirely proper pursuant to R.C. 2929.04(B)(3) and State v. Lawrence (1989), 44 Ohio St.3d 24, the trial court was not required to give any further instruction. In contrast, although appellant asserts the trial court should have given an instruction which gave the jury the "option" to reject the death penalty even if the aggravating circumstance outweighed any mitigating factors, the trial court may not misstate -46- the law as set forth in R.C. 2929.03(D)(2). See, e.g., State v. Landrum (1990), 53 Ohio St.3d 107. Therefore, its failure to give such an instruction was not error. For the foregoing reasons, appellant's tenth, thirteenth, fourteenth and fifteenth assignments of error are overruled. X. Appellant's eleventh and seventeenth assignments of error are related and state: ASSIGNMENT OF ERROR NO. XI: THE TRIAL COURT COMMITTED PLAIN ERROR BY PROVIDING THE JURY WITH THE DEFINITION OF REASONABLE DOUBT WHICH IS CONTAINED IN OHIO REVISED CODE 2901.05(D). THIS DEFINITION IS INVALID UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. ASSIGNMENT OF ERROR NO. XVII: THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT THE AGGRAVATING CIRCUMSTANCE MUST OUTWEIGH THE MITIGATING CIRCUMSTANCES BEYOND ALL DOUBT BEFORE THE DEATH PENALTY CAN BE RECOMMENDED. Appellant once again invokes the doctrine of plain error to argue the trial court's instructions on reasonable doubt in both the guilt and penalty phases of his trial were too lenient and permitted the jury to return a verdict on less proof than is constitutionally required. Appellant asserts the instructions given in this case were similar to the one struck by the United States Supreme Court as being unconstitutional in Case v. Louisiana (1990), 498 U.S. 39. The trial court's instructions, however, mirrored the language set forth in R.C. 2901.05(D). In State v. Jenkins (1984), 15 Ohio -47- St.3d 164, cert. denied (1985), 472 U.S. 1032, the Ohio Supreme Court upheld the constitutionality of this instruction based upon statute. Hence, appellant's argument remains unconvincing. Accordingly, appellant's eleventh and seventeenth assignments of error are also overruled. XI. Appellant's sixteenth assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY THAT IT COULD RECOMMEND THE DEATH SENTENCE EVEN IF THERE WAS EVIDENCE OF SUBSTANTIAL MITIGATING CIRCUMSTANCES. Appellant argues the trial court's instruction on the jury's duty to impose death if it found the aggravating circumstances outweighed the mitigating factors was constitutionally improper. Once again, this argument must be rejected pursuant to R.C. 2929.05(D)(2) and State v. Jenkins, supra. Accordingly, this assignment of error is overruled. XII. Appellant's eighteenth, nineteenth, twenty-third, twenty- fourth, twenty-fifth and twenty-sixth assignments of error are addressed together and are set forth as follows: ASSIGNMENT OF ERROR NO. XVIII: THE OHIO DEATH PENALTY STATUTES UNCONSTITUTIONALLY INFRINGE UPON THE RIGHT OF A CAPITALLY CHARGED DEFENDANT TO EXERCISE HIS RIGHT TO HAVE A TRIAL. THE TRIAL COURT THEREFORE COMMITTED PLAIN ERROR IN IMPOSING THE DEATH SENTENCE. -48- ASSIGNMENT OF ERROR NO. XIX: THE OHIO DEATH PENALTY STATUTES DENIED THE APPELLANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL IN A TRIAL BEFORE AN IMPARTIAL JURY. THE TRIAL COURT THEREFORE COMMITTED PLAIN ERROR BY IMPOSING THE DEATH SENTENCES. ASSIGNMENT OF ERROR NO. XXIII: THE OHIO DEATH PENALTY STATUTES ARE UNCONSTITUTIONAL BECAUSE THE GUIDELINES FOR THE IMPOSITION OF THE DEATH PENALTY ARE VAGUE AND INDEFINITE. THE TRIAL COURT THEREFORE COMMITTED PLAIN ERROR BY ADOPTING THE JURY'S RECOMMENDATION TO IMPOSE THE DEATH SENTENCE. ASSIGNMENT OF ERROR NO. XXIV: THE OHIO DEATH PENALTY STATUTES ARE UNCONSTITUTIONAL BECAUSE THEY FAIL TO PROVIDE A MEANINGFUL BASIS FOR DISTINGUISHING BETWEEN LIFE AND DEATH SENTENCES. THE TRIAL COURT THEREFORE COMMITTED PLAIN ERROR IN IMPOSING THE DEATH SENTENCE. ASSIGNMENT OF ERROR NO. XXV: THE OHIO DEATH PENALTY STATUTES FAIL TO SATISFY THE CONSTITUTIONAL REQUIREMENTS REGARDING JUDICIAL REVIEW OF THE ARBITRARINESS, PASSION OR PREJUDICE IN THE SENTENCING PROCEEDINGS. THE TRIAL COURT THEREFORE COMMITTED PLAIN ERROR IN OPPOSING THE DEATH SENTENCE. ASSIGNMENT OF ERROR NO. XXVI: THE OHIO DEATH PENALTY STATUTES ARE UNCONSTITUTIONAL IN THAT THERE IS NO COMPELLING STATE INTEREST WHICH IS SUFFICIENT TO DENY THE APPELLANT'S FUNDAMENTAL RIGHT TO LIFE. THE TRIAL COURT THEREFORE COMMITTED PLAIN ERROR BY IMPOSING THE DEATH PENALTY. In these assignments of error, appellant challenges the constitutionality of Ohio's death penalty statutes with a variety of arguments. Initially, this court notes appellant failed to raise any constitutional challenges to the statutes at trial. Secondly, the Ohio Supreme Court has already rejected all of appellant's challenges; therefore, this court is bound by the -49- following decisions: State v. Jenkins, supra; State v. Scott (1986), 26 Ohio St.3d 92; State v. Buell (1986), 22 Ohio St.3d 124; State v. Steffan (1987), 31 Ohio St.3d 111; State v. Lewis (1993), 67 Ohio St.3d 200. Appellant's eighteenth, nineteenth and twenty-third through twenty-sixth assignments of error are thus summarily overruled. XIII. Appellant's twentieth, twenty-first and twenty-second assignments of error are addressed together as follows: ASSIGNMENT OF ERROR NO. XX: THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING CIRCUMSTANCE OUTWEIGHED THE MITIGATING CIRCUMSTANCES BEYOND A REASONABLE DOUBT. ASSIGNMENT OF ERROR NO. XXI: THE TRIAL COURT ERRED IN FINDING THAT DEATH WAS APPROPRIATE AND PROPORTIONATE TO THE PENALTY IMPOSED IN SIMILAR CASES. ASSIGNMENT OF ERROR NO. XXII: THE TRIAL COURT ERRED IN WEIGHING NON-STATUTORY, AGGRAVATING CIRCUMSTANCES AGAINST MITIGATING CIRCUMSTANCES. Appellant argues the trial court improperly weighed nonstatutory aggravating factors in its decision because it referred to aggravating "circumstances" and was not sufficiently specific. This court has reviewed the trial court's sentencing opinion, however, and concludes the trial court committed no impropriety. -50- R.C. 2929.03(F) requires the court to state in a separate opinion its specific findings of aggravating circumstances and mitigating factors, and the reasons why the aggravating circumstances outweigh the mitigating factors. A trial judge is not required to find that defense evidence necessarily establishes any of the mitigating factors outlined in R.C. 2929.04. State v. Stumpf (1987), 32 Ohio St.3d 95, 101. The court is required only to consider such evidence. Id. A review of the opinion clearly demonstrates the trial court fulfilled its statutory duties in this case. Although the trial court mentioned the "circumstances" of the crime, it stated correctly that only one "aggravating circumstance" existed for the court to consider. Its choice of the word "circumstances" was merely a reference to the fact that it must consider two counts of aggravated murder with a mass murder specification against appellant. This was thus a matter of semantics and does not constitute error. State v. Combs (1991), 62 Ohio St.3d 278; State v. Landrum (1990), 53 Ohio St.3d 107. The trial court's opinion in this case contains a detailed discussion of the aggravating circumstance as well as the mitigating evidence offered by appellant. The court stated it found none of appellant's evidence established the existence of any of the mitigating factors delineated in R.C. 2929.04 and, thus, the aggravating "circumstances" outweighed the mitigating factors. The trial court's opinion complies with the mandates of R.C. 2929.03(F). -51- Accordingly, these assignments of error are overruled. This court has reviewed the record with reference to appellant's assignments of error and has found none with merit. Therefore, the judgment of the trial court is affirmed. -52- 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. BLACKMON, P.J., and MATIA, DAVID T., J., CONCUR. JOSEPH J. NAHRA 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. .