COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67452 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : THOMAS KEENAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 22, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-232189 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: FRANK GASPER, ESQ. PAUL MANCINO, JR., ESQ. Asst. County Prosecutor 75 Public Square MARK J. MAHONEY, ESQ. Suite 1016 Asst. County Prosecutor Cleveland, Ohio 44113-2098 8th Fl Justice Center 1200 Ontario Street Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: Thomas M. Keenan, defendant-appellant, appeals a decision of the trial court convicting him of aggravated murder, kidnapping, and aggravated burglary and sentencing him to death. Keenan 1 assigns thirty-nine errors for our review. Having reviewed Keenan's assignments of error and independently determined that the aggravating circumstances outweigh any mitigating factors present in this case, we affirm his convictions and the sentence of death. The apposite facts are as follows: On or about September 24, 1988, Keenan and two of his co- workers, Joe D'Ambrosio and Eddie Espinoza, went to a bar called "The Saloon." Once there, they encountered Paul Lewis and his roommate, Anthony Klann. Keenan and Lewis left the bar and sat in Keenan's truck. According to Lewis, Keenan gave him cocaine and marijuana in order to satisfy a prior debt. Thereafter, they went to another bar, "Coconut Joe's", where they again met up with D'Ambrosio, Espinoza, and Klann. Just before the bar's closing time, D'Ambrosio and Espinoza were ordered out of the bar after they got into a heated argument with Klann. D'Ambrosio and Espinoza headed to D'Ambrosio's apartment and Keenan drove away in his truck. Shortly thereafter, Keenan arrived at D'Ambrosio's apartment. He was angry and told D'Ambrosio and Espinoza that Lewis had stolen some cocaine from his truck. Keenan asked the pair to help him look for Lewis. Espinoza 1 See Appendix. -3- grabbed a baseball bat and D'Ambrosio grabbed a knife. The three went off in Keenan's truck in search of Lewis. After driving around for a while, they went to the home of James Russell. The three men entered the house and asked Russell if he had seen Lewis. Russell replied that he had not seen Lewis. The group left Russell's house and continued to search for Lewis. They spotted Anthony Klann walking along the street and called him over to the truck. As Klann approached the truck, Keenan grabbed him and said "Get your ass in the truck." Once Klann was inside, Keenan asked him where Lewis was. Espinoza hit Klann in the forehead with the baseball bat and D'Ambrosio slapped Klann and held a knife on him while demanding to know the whereabouts of Lewis. Klann led them to Lewis's apartment building. As D'Ambrosio waited in the truck with Klann, Espinoza and Keenan went to Lewis' door and began pounding on it. The noise attracted the attention of Adam Flanik, one of Lewis' neighbors. As Flanik watched, Espinoza kicked in the door of Lewis' apartment. Espinoza and Keenan entered the apartment and searched for Lewis. Once they determined Lewis was not home, they left the apartment. The men returned to Russell's house. Espinoza went to the door and again asked Russell if he had seen Lewis. Russell replied that he had not seen him. Espinoza got back into the truck and Keenan drove to Doan's Creek. Once there, Keenan got out of the truck and told Klann to get out of the truck. Shortly thereafter, Espinoza and D'Ambrosio got out of the truck. As Keenan was -4- yelling at Klann, he produced a knife and told Klann to put his head back. Keenan then cut Klann's throat with the knife. Thereafter, Keenan led Klann to the edge of the creek and pushed him in. Espinoza turned and walked back toward the truck. Keenan said, "Finish him" and handed the knife to D'Ambrosio. D'Ambrosio jumped into the creek. As Klann pleaded for his life, D'Ambrosio stabbed him three times. In the afternoon of September 24, 1988, a jogger found the body floating in the creek and called police. On the morning of September 24, 1988, Paul Lewis encountered James Russell who told him that Keenan, D'Ambrosio, and Espinoza had been looking for him. Lewis returned to his apartment and noticed that it had been broken into. He noticed a telephone and a CB radio were missing from the apartment. Lewis then went to visit with friends and stayed away from the area until the following Monday, September 26. Lewis was in a neighborhood coffee shop when he heard a policeman mention an unidentified body found in a nearby creek. From the officer's description of the body, Lewis believed it might be Klann. The officer suggested he go to the coroner's office to see if he could identify the body. Accompanied by James Russell and Adam Flanik, Lewis went to the morgue. Lewis identified the body as Anthony Klann. Based upon information provided by Lewis, police arrested D'Ambrosio and Espinoza at D'Ambrosio's apartment that afternoon. Keenan was arrested the following day. D'Ambrosio was later convicted of aggravated murder under R.C. 2903.01(A), aggravated murder under R.C. 2903.01(B), kidnapping, and aggravated burglary -5- and sentenced to death. Espinoza pleaded guilty to involuntary manslaughter, kidnapping and aggravated burglary and received an aggregate sentence of fifteen to fifty years. Espinoza testified against both D'Ambrosio and Keenan. Keenan was tried and convicted of aggravated murder under R.C. 2903.01(A), aggravated murder under R.C. 2903.01(B), kidnapping, and aggravated burglary and sentenced to death. His conviction was later overturned by the Ohio Supreme Court due to prosecutorial misconduct. Keenan was retried in August 1993. After the trial, Keenan was again convicted on all counts and sentenced to death on the aggravated murder counts. He also received consecutive sentences of 15 to 25 years for the kidnapping and 15 to 25 years for the aggravated burglary. This appeal followed. We will be addressing Keenan's assignments of error in a different order than they were presented in his appellate brief. In his first assignment of error, Keenan asserts he was denied his constitutional right to have his own counsel. His argument stems from the trial court's disqualification of Keenan's retained counsel, Paul Mancino, Jr. The court found that, because Mancino had agreed to represent one of Keenan's co-defendants, Joe D'Ambrosio, his representation of Keenan posed a conflict of interest. An indigent defendant does not have the right to counsel of his own choosing, but has the right to competent counsel. State v. Blankenship (1995), 102 Ohio App.3d 534, 558. The sixth amendment right to counsel embodies the right to conflict-free -6- representation. State v. Dillon (1995), 74 Ohio St. 3d 166, 167. Where the trial judge knows or reasonably should know about a possible conflict of interest, the trial court has a duty to inquire about potential conflicts of interest posed by multiple representations. State v. Gillard (1992), 64 Ohio St.3d 304, 309. See also Dillon at 167-168. This duty arises even if neither party objects to the multiple representation. Gillard at 309. In this case, Keenan wanted Paul Mancino and John Higgins to serve as his trial counsel. However, the trial court determined that the representation would pose an actual conflict because Higgins had represented D'Ambrosio during his trial and Mancino represented D'Ambrosio during his appeal. The trial court found that allowing Higgins and Mancino to represent Keenan would place them in an untenable position and that Keenan could not validly waive his right to be represented by counsel free from conflict of interest. We find no error in the trial court's decision. The trial court had a duty to protect Keenan from a possible conflict of interest. A possible conflict of interest exists when "the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties." Dillon at 168. Mancino told the trial court that he represented D'Ambrosio on the direct appeal of his conviction. According to Mancino, he did not participate in the subsequent appeal to the Ohio Supreme Court. However, D'Ambrosio's case was remanded to the Court of Appeals on August 25, 1993, less than one month before the trial court -7- conducted its inquiry into the potential conflict. Therefore, the appellate case was still open. Because Mancino was representing D'Ambrosio on the appeal of his conviction for murdering the victim, the trial court correctly inquired into the potential conflict. The court's determination that a conflict existed was reasonable under the circumstances. We also reject Keenan's argument that the trial court denied him the opportunity to participate in the trial as co-counsel. Specifically, he argues in his second assignment of error that the trial court violated his sixth amendment right to counsel by refusing to allow him to address the jury in opening and closing statements. However, our review of the transcript indicates that Keenan specifically said he was not asking to participate in opening and closing statements. The record indicates that he was allowed to conduct limited direct and cross examination of many of the witnesses. The Ohio Supreme Court has held that, although a criminal defendant has the right either to appear pro se or to have counsel, he has no corresponding right to act as co-counsel on his own behalf. State v. Day (1991), 72 Ohio App.3d 82, 86. The trial court was under no obligation to allow Keenan a greater level of participation in the trial. Accordingly, we find no merit in Keenan's second assignment of error. In his ninth assignment of error, Keenan argues that the trial court improperly interfered with his defense. He first argues that the trial court erred in refusing to allow the reading of testimony given by James Russell in Joe D'Ambrosio's trial. The trial court -8- found that Russell's testimony in D'Ambrosio's trial was substan- tially similar to his testimony in Keenan's first trial. Because Russell's testimony from Keenan's first trial was read into evidence and Keenan has produced no evidence that Russell's testimony at D'Ambrosio's trial was substantially different, we can not say that the trial court erred in its decision to exclude this evidence. Keenan also argues the trial court erred in disallowing testimony by Patrick Keenan about a 1989 conversation he had with Adam Flanik. He argues that the evidence could have been used to impeach Flanik's testimony. We disagree. Evid.R. 613(B) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice so require. Our review of the record reveals that Flanik was not asked about a conversation he had with Patrick Keenan and, therefore, had no opportunity to explain or deny the conversation or the statements made during the conversation. Consequently, the trial court did not err in excluding the testimony. We also find the trial court did not err in striking an answer given by Keenan's father, Thomas K. Keenan, when he was asked why he did not testify in Keenan's first trial. Thomas K. Keenan replied, "It was determined by counsel that no defense would be presented." The prosecutor objected to Thomas K. Keenan's answer. -9- The trial court sustained the objection, ordered the question and the answer to be stricken, and ordered the jury to disregard them. The trial court's action was an appropriate response to a valid objection by the prosecution. Keenan also argues that the trial court erred in failing to permit an inspection of the police report of Detective Ernest Hayes. Crim.R. 16(B)(1)(g) provides that after a witness has completed his direct testimony, the defendant may move the court to conduct an in camera inspection of the witness' written or recorded statement in order to determine whether inconsistencies exist between the statement and the witness' testimony at trial. Crim.R. 16(B)(2) provides that, with the exception of such in camera inspections, statements by a defendant or co-defendant, defendant's prior criminal record, reports of examinations and tests, and exculpatory evidence, a defendant is not entitled to discovery or inspection of "reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case." The detective's crime scene report was clearly an internal document made in connection with the investigation of the case. In State v. White (1989), 65 Ohio App.3d 564, 571, the court held that a writing is not a "statement" unless it is prepared, signed, or adopted by the witness or is a verbatim or nearly verbatim recording of a continuous narrative statement made by the witness. A police report which contains nothing more than the officer's investigative decisions, interpretations and interpolations is -10- privileged and excluded from discovery under Crim.R. 16(B)(2). State v. Jenkins (1984), 15 Ohio St.3d 164, 225. The prosecutor stated that Hayes did not testify about anything from the police report. Keenan does not argue and there is no evidence that the report contained a "statement" by Detective Hayes. Under the circumstances, the trial court did not err in refusing Keenan's request to inspect the report. Keenan also argues that the trial court erred in refusing to allow cross-examination of Paul Lewis about whether he was in jail in June, July, and August 1988. The court ruled that the information sought by the question was irrelevant. Under Evid.R. 402, evidence which is not relevant is not admissible. Keenan argues that the evidence was admissible to impeach Lewis. However, the state argued that there was no conviction involved with that period of incarceration. No contrary evidence was presented. Although Evid.R. 609 allows for impeachment of a witness with evidence of prior convictions, there is no evidence that Lewis' incarceration in the summer of 1988 had anything to do with a conviction. Consequently, it could not be used to impeach him. The trial court correctly excluded the evidence. We also reject Keenan's claim that comments made by the trial court suggested skepticism of Joe D'Ambrosio's testimony. While the trial court did ask several questions of D'Ambrosio, nothing in the questions indicated a disbelief of D'Ambrosio's testimony. The questions sought clarification of D'Ambrosio's answers and did not suggest any bias on the part of the trial court. -11- Keenan also argues that the trial court erred in telling the jury that, during the mitigation phase, the prosecution would present evidence that Keenan was a nasty individual while the defense would present evidence that he was a good person. Although the trial court's statement was less than formal, it did accurately describe what would occur during the mitigation phase. We find no error in this statement. Keenan also argues the trial court made a derisive statement about one of Keenan's witnesses, Father Louis O'Reilly, by referring to him as "the Padre." We find nothing derisive about the court's comment. Significantly, no objection was made at trial. Under the circumstances, we find no reversible error in the trial court's statement. Keenan also claims the trial court erred in giving compliments to the prosecution and the police. He also argues it was improper for the trial court to interrupt the proceedings to introduce other judges to the jury. In the transcript pages listed in his brief, Keenan refers to the trial court's comment during voir dire that prosecutor Mark Mahoney was a "rising young star" and describing Det. Leo Allen as "handsome". Again, none of these comments were objected to and we are unable to find that the comments evidenced any bias on the part of the trial court. At no time did the trial court express any opinion about the evidence presented by Det. Allen. The description of Mr. Mahoney as a "rising young star" cannot be reasonably interpreted as bolstering the prosecution's case, especially since it was made during voir dire, before any -12- evidence had been presented. We find nothing prejudicial about the trial court's comments. Keenan also challenges the trial court's refusal to discharge jurors who were "either totally committed to capital punishment or against the defense." However, the five jurors listed in Keenan's brief were all excused by the trial court after they indicated they could not recommend the death penalty under any circumstances. Under R.C. 2945.25, a juror who unequivocally states that he cannot fairly consider the death penalty under any circumstances may be challenged. Accordingly, the trial court did not err in excusing these jurors. We are unable to evaluate Keenan's claim that several of the jurors were "against the defense" and he provides us with no guidance as to the basis of his claim. Accordingly, we must reject this claim. Because we find that none of the above listed actions by the trial court constituted unfair interference with Keenan's ability to present a defense or indicated bias on the part of the trial 2 court, we overrule Keenan's ninth assignment of error. Keenan's fifteenth, sixteenth, seventeenth, eighteenth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty- fifth, twenty-seventh, and twenty-eighth assignments of error all pertain to the trial court's instructions to the jury. However, none of the challenged jury instructions were objected to by trial 2 Keenan also claims that the trial court erred in ordering that Keenan's execution could be open to the public. We will address this claim in our evaluation of Keenan's thirty-seventh assignment of error. -13- counsel. A party may not assign as error the giving or failure to give jury instructions unless he has objected to the instructions and given the basis for his objection before the jury has retired to consider its verdict. Crim.R. 30. Despite the lack of timely objections in this case, we will proceed to evaluate the challenged instructions in light of the plain error rule. In his fifteenth assignment of error, Keenan argues that he was denied due process of law when the trial court improperly instructed the jury about foreseeability. In State v. Burchfield (1993), 66 Ohio St.3d 261, 263, the Ohio Supreme Court warned that the foreseeability instruction should be used cautiously in murder cases due to its potential to mislead jurors. However, the court also noted that jury instructions may not be viewed in isolation but must be evaluated as a whole. Id. at 262. In this case, the trial court's instructions clearly set forth the requirement that, in order to convict Keenan for aggravated murder, the jury had to find that "the defendant purposely and with specific intent caused the death of Anthony Klann." The court also defined "purposely" as follows: A person acts purposefully when it is his specific intention to cause a certain result. Purpose is a decision of the mind to do an act or acts with a conscious objective of producing a specific result. To do an act purposefully is to do it intentionally and not accidentally. (Tr. 2629). In light of the clear instructions given by the trial court with respect to the element of purpose, we find that the inclusion of the foreseeability instruction did not amount to -14- reversible error. Keenan's fifteenth assignment of error is overruled. Keenan next argues that the trial court erred in defining an aider and abettor. He claims the trial court's definition of the term permitted the jury to convict Keenan solely due to his participation in a common design without requiring the state to prove that Keenan acted with a purpose to kill Klann. We disagree. The trial court defined aiding and abetting in its instructions but did not state that Keenan was being tried as an aider and abettor to murder. The trial court's definition of aiding and abetting was presented in a general context and was not tied to any of the crimes charged. When defining aggravated murder for the jury, the trial court made it plain that Keenan could not be convicted of murder unless the jury found that he caused the death of Anthony Klann "purposefully and with specific intent." Keenan's sixteenth assignment of error is without merit. In his seventeenth assignment of error, Keenan argues the trial court erroneously instructed the jury about causation. The court's definition of "cause" was taken directly from 409.55 of the Ohio Jury Instructions. R.C. 2903.01 does not differentiate between an act and a failure to act. Instead it focuses on the impact of the offender's behavior. The trial court's instruction was not erroneous. Keenan's seventeenth assignment of error is overruled. In his eighteenth assignment of error, Keenan argues the trial court erred in instructing the jury that there was an allegation -15- that a dangerous weapon was used in this case. Keenan argues that the instruction constituted an amendment to the indictment. We disagree. The evidence presented at trial revealed that Klann was stabbed three times and had his throat slashed with a knife. Because the state presented evidence that a knife was used in the murder, the trial court was correct to instruct on the use of a deadly weapon as relevant to a determination of whether the state proved a purpose to kill. Keenan's eighteenth assignment of error is overruled. In his twenty-first assignment of error, Keenan argues that the trial court erred in failing to instruct on any lesser included offenses. R.C. 2945.74 provides: When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense. A defendant is not entitled to instructions on lesser included offenses to a charge of aggravated murder where there was no evidence presented to support any alternative theory which both acknowledged the killing and refuted the element of prior calculation and design. State v. Bailey (1992), 90 Ohio App.3d 58, 72. In this case, Keenan presented evidence that he was elsewhere at the time the offense was committed. At no time did any of the evidence presented by Keenan reflect an acknowledgment that he -16- participated in the killing. Consequently, he was not entitled to an instruction on lesser included offenses. In his twenty-second assignment of error, Keenan argues that the trial court erred in its instructions to the jury about the felony murder specifications. Keenan argues the court denied him due process of law by not requiring the jury to specifically find whether he was the principal offender in the crime. He also argues the trial court specifically told the jury that Keenan was being prosecuted as an aider and abettor. We disagree. First of all, while the trial court did instruct the jury on aiding and abetting, it did not specify that Keenan was being charged as an aider and abettor to aggravated murder. The state presented evidence that Keenan slashed Anthony Klann's throat. This evidence indicates that Keenan was being prosecuted as the principal offender in the aggravated murder. During the penalty phase of the trial, the state argued that Keenan "wasn't an aider and abettor, lookout, he was the main man." Neither the indictment, the evidence presented at trial, nor the arguments by the state indicated that Keenan was being prosecuted as anything other than the principal offender in the aggravated murder of Anthony Klann. Keenan's reliance on State v. Penix (1987), 32 Ohio St.3d 369, is misplaced. In Penix, the court reversed a death sentence imposed after a jury was told that it should consider two aggrava- ting circumstances that Penix committed aggravated murder with prior calculation and design and that Penix, as the principal -17- offender, committed aggravated murder while committing or attempting to commit aggravated robbery. The court held that the trial court erred in instructing the jury that prior calculation and design was an aggravating circumstance where the evidence indicated that Penix was the primary offender. In this case, the court correctly instructed the jury that prior calculation and design was only an aggravating circumstance if Keenan was not the primary offender. Because the trial court correctly instructed the jury about the specification, we overrule Keenan's twenty-second assignment of error. In his twenty-third assignment of error, Keenan argues that he was denied due process of law by the trial court's failure to instruct the jury about the effect of prior convictions on witness credibility. While we agree that such an instruction could properly have been given in this case, there is no evidence that Keenan ever sought such an instruction or objected to the instructions as given. Accordingly, we overrule Keenan's twenty- third assignment of error. Keenan's twenty-fourth assignment of error raises the issue of whether the trial court improperly modified the definition of proof beyond a reasonable doubt. Keenan argues that, although the trial court properly gave the statutory definition of reasonable doubt, it erroneously modified the definition by adding the following language: ***[I]f, after a full and impartial consideration of all of the evidence you are firmly convinced beyond a reasonable doubt of -18- the truth of the charge, then the State has proved its case, and you must find the defendant guilty. If, after a fair and impartial consideration of all of the evidence you are not so convinced, then, of course, your verdict must be not guilty. The Ohio Supreme Court has held that amplification of the definition of reasonable doubt, as set forth in R.C. 2901.05(D), is inadvisable. State v. Van Grundy (1992), 64 Ohio St.3d 230, 236. The Van Grundy court reasoned that the abstract concept of reasonable doubt is inherently difficult to define and usually remains unclear to the jury despite further attempts to define it. Id. at 235. However, a modification of the definition does not constitute reversible error unless it is erroneous or prejudicial. Id. at 233. In this case, the additional language used by the trial court was not erroneous. In addition to the instruction that the jurors must find the defendant guilty if they are convinced beyond a reasonable doubt of the truth of the charge, the court also told them that they must find the defendant not guilty if they were not convinced beyond reasonable doubt of the charge. We find that the language used by the trial court was even-handed, accurate, and non-prejudicial. Accordingly, we overrule Keenan's twenty-fourth assignment of error. In his twenty-fifth assignment of error, Keenan argues the trial court erred in instructing the jury on the issue of motive. The court gave the following instruction: -19- Now, ladies and gentlemen, proof of motive is not required. Motive is not an element of any crime in the State of Ohio. The presence or absence of motive is one of the circumstances bearing upon purpose, or the intent aspect that is required in any criminal case. Again, no objection was raised to this instruction. Consequently, any error in the instruction was waived. In his twenty-seventh assignment of error, Keenan argues that the court unconstitutionally lessened the jury's responsibility concerning the death penalty. During its instructions during the penalty phase of the trial, the court told the jury that a jury recommendation that the death penalty be imposed is not binding upon the court and that the final decision about whether to impose the death penalty rests upon the court. We reject Keenan's argument that this instruction was erroneous. The trial court properly explained the jury's role in a death penalty case as set forth in R.C. 2929.03. The Ohio Supreme Court has held that Caldwell v. Mississippi (1985), 472 U.S. 320 does not apply to accurate statements of law that are not made to induce reliance on the appellate process. State v. Durr (1991), 58 Ohio St.3d 86, 93. Keenan's twenty-seventh assignment of error is overruled. In his twenty-eighth assignment of error, Keenan argues that the trial court improperly implied that the defendant had a burden of proof with respect to factors in mitigation of a death sentence. R.C. 2929.03(D)(1) provides that the "defendant shall have the burden of going forward with evidence of any factors in mitigation -20- of the imposition of the sentence of death. The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death." The challenged instruction was as follows: You will be called upon to decide the factual questions as to whether or not the defendant in the first place produced evidence as to any of the statutory factors and other non-statutory factors, that is, the defendant has met the burden of going forward with evidence of any factors in mitigation of the imposition of the sentence of death. We find that the trial court's instructions properly stated the defendant's burden of going forward with mitigating evidence. At no time did the trial court state that the defendant had a burden of proof. The court clearly stated that the burden of proof was on the prosecution to establish beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. [Y]o was found guilty of committing against the mitigating factors to determine whether the State has met its burden of proof, that is, that you find unanimously and beyond a reasonable doubt that the aggravating circumstances of which Thomas M. Keenan was convicted are sufficient to outweigh the mitigating factors present in the case. (Tr. 2802). Because we find that the trial court's instructions did not imply that Keenan had a burden of proof, we overrule Keenan's twenty-eighth assignment of error. In his twenty-ninth assignment of error, Keenan asserts he was denied due process of law when the trial court erroneously -21- instructed the jury that they could consider mitigating factors as "extenuating or reducing the degree of the defendant's blame or punishment." Although it is error for a trial court to instruct that mitigating factors would tend to reduce the offender's culp- ability, the trial court correctly stated the mitigating factors could be considered as reducing the degree of the defendant's punishment. See State v. Holloway (1988), 38 Ohio St.3d 239, 242. The court also said that mitigating factors do not justify or excuse the crime. When taken as a whole, we find that the trial court's instructions correctly explained the nature of mitigating factors. Keenan's twenty-ninth assignment of error is without merit. In his thirtieth assignment of error, Keenan argues that he was denied due process when the trial court sentenced him to death based upon non-statutory circumstances. He bases his argument on the trial court's statements characterizing the crime as "a vicious killing devoid of any human compassion" and noting that Keenan refused to take responsibility for Klann's death. He also argues that the trial court failed to comply with R.C. 2929.03(F)'s requirement that the trial court state its specific findings of fact about the mitigating and aggravating factors. In its opinion under R.C. 2929.03(F), the trial court stated that it had considered all mitigating factors in R.C. 2929.04(B), any other mitigating factor, the aggravating circumstances found to exist by the jury and the evidence presented at trial. The court summarized the evidence presented in mitigation as well as the -22- aggravating circumstances and independently concluded that the aggravating circumstances outweighed the mitigating circumstances. Although the court's opinion did not include the rationale for stating that the aggravating circumstances outweighed the mitigating factors, we find that the trial court's error was not prejudicial to Keenan. One of the reasons for the R.C. 2929.03(F) opinion is to advise reviewing courts of the trial court's perceptions as to the weight given to the relevant circumstances. State v. Johnston (1988), 39 Ohio St.3d 48, 56. However, because of our duty under R.C. 2929.05 to independently determine whether the aggravating circumstances outweigh the mitigating factors, Keenan was not prejudiced by the deficiencies in the report. See Id. at 57. Keenan's thirtieth assignment of error is without merit. In his thirty-first assignment of error, Keenan argues that the trial court's use of the words "aggravating circumstances" was improper where only one aggravating circumstance was shown to exist. We disagree. The trial court explained to the jury that its job was to determine whether any aggravating circumstances were proved and whether the aggravating circumstances outweighed the evidence presented in mitigation. There is no evidence that the trial court's use of the plural had any impact on the jury's determination. Keenan's thirty-first assignment of error is overruled. Keenan's thirty-second assignment of error contains a challenge to the trial court's instructions on mitigating factors. -23- Specifically, he argues the trial court incorrectly stated that mitigating factors include the nature of the offense, the history, character and background of the offender. R.C. 2929.04(B) provides that, if one of more aggravating circumstances is specified in the indictment and proven beyond a reasonable doubt, the jury "shall consider and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender" and all of the statutorily defined mitigating factors. (Emphasis added) R.C. 2929.04 clearly provides that the nature of the offense as well as the offender's history, character, and background are among the factors to be weighed against the aggravating circumstances when deciding whether to impose a sentence of death. Because the trial court's instruc- tions accurately reflected the statute,we overrule Keenan's thirty- second assignment of error. In his thirty-fourth assignment of error, Keenan argues the trial court erroneously failed to limit its instruction of mitiga- ting factors to those factors on which evidence was presented. We disagree. One of the functions of the jury in this case was to determine whether Keenan had met his burden of going forward with evidence of mitigating factors. In order for the jury to determine whether such evidence had been presented, they would have to be told about what factors had been statutorily defined as mitigating. If the court had limited its recitation of the statutory factors to those upon which Keenan presented evidence, such limitation may -24- have been perceived by the jury as a conclusion by the court that the burden of production had been met as to those factors. We find that the court properly listed all mitigating factors and left to the jury the task of deciding which factors had been sufficiently raised by the defense. We find nothing in the record to suggest that a reasonable jury would have misunderstood the instructions as given. Keenan's thirty-fourth assignment of error is overruled. In his thirty-fifth assignment of error, Keenan argues that the Ohio sentencing statutes are unconstitutional because they impose the same punishment for an attempt to commit an offense as for the commission of the offense. This argument is based on the incorrect premise that the jury's guilty finding on the felony murder specification indicated a finding that his actions constituted an attempt to commit a kidnapping. On the contrary, the jury clearly convicted Keenan of kidnapping. The death penalty specification was that Keenan committed a murder during the course of the kidnapping. The death sentence imposed was not for attempted kidnapping or kidnapping but for murder. Keenan's thirty-fifth assignment of error is overruled. In his third and nineteenth assignments of error, Keenan argues that he was denied due process when the prosecutor and the trial court constructively amended the indictment by altering the date of the offense. R.C. 2941.30 provides: The court may at any time before, during, or after a trial amend the indictment, informa- tion, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the -25- evidence, provided no change is made in the name or identity of the crime charged. An indictment need not state the date of the offense charged. State v. Price (1992), 80 Ohio App.3d 35, 38. An indictment is sufficient if it can be understood therefrom that the offense was committed at some time prior to the time of filing of the indictment. R.C. 2941.03(E). The filing of an alibi does not change the rule that in a criminal case, the exact date and time of the offense are immaterial unless the nature of the offense is such that exactness of time is essential. State v. Dingus (1970), 26 Ohio App.2d 131 at syllabus. In this case, the indictment charged that the crimes occurred "on or about" September 24, 1988. The exact date of the offense is not an essential element of any of the crimes allegedly committed by Keenan. Accordingly, we overrule Keenan's third and nineteenth assignments of error. In his thirteenth assignment of error, Keenan argues that the trial court erred in instructing the jury about "conspiracy". We disagree. In its instructions to the jury, the trial court read the statutory definition of complicity. Complicity includes aiding and abetting as well as conspiring to commit an offense in viola- tion of R.C. 2923.01. R.C. 2923.01 (conspiracy) prohibits any person from planning or aiding in planning the commission of any of several statutorily defined offenses with another person or persons. It also prohibits agreeing with another person or persons that one or more of them will engage in conduct that facilitates -26- the commission of any of the statutorily defined offenses which include aggravated murder, murder, aggravated burglary, and kidnapping. In this case, the state produced testimony by Espinoza that he kicked in the door of Paul Lewis' apartment just before he and Keenan entered the apartment. Because this testimony supported an instruction on aiding and abetting, the trial court properly read the jury a definition of complicity. See State v. Perryman (1976), 49 Ohio St.2d 14 (when the evidence adduced at trial could reasonably be found to have proven the defendant guilty as an aider and abettor, a jury instruction by the trial court on that subject is proper). The complicity statute includes a specific reference to the conspiracy statute (R.C. 2923.01). In keeping with its duty to fully instruct the jury on all applicable law, the trial court properly read the statutory definition of conspiracy. See, generally R.C. 2945.10. This assignment of error is overruled. We also reject the argument raised in Keenan's fourteenth assignment of error. Keenan argues the trial court improperly instructed the jury on the offense of conspiracy to commit aggravated murder and that it is impossible to determine whether the jurors convicted Keenan of the crime of conspiracy. The trial court's instructions to the jury and the verdict forms submitted to the jury clearly specified the charges against Keenan. As discussed above, the trial court's reading of the definition of conspiracy was proper as part of its explanation of aiding and abetting and cannot reasonably be construed as amending the -27- indictment to include a separate charge of conspiracy. We find nothing in the record that would support Keenan's argument that the jury was misled into believing that Keenan was being charged with the crime of conspiracy. Keenan's fourteenth assignment of error is overruled. In Keenan's twentieth assignment of error, he argues he was denied due process of law by the trial court's failure to instruct the jury that Edward Espinoza's guilty plea could not be used as substantive proof of Keenan's guilt. We disagree. Our review of the record indicates that Keenan never sought such a limiting instruction and can therefore be deemed to have waived the claimed error. Nonetheless, we find that the trial court properly instructed the jury on how to evaluate Espinoza's testimony. Whether Edward Espinoza was an accomplice and the weight to give his testimony are matters for you to determine from all of the facts and circumstances in evidence. The testimony of an accomplice does not become inadmissible because of his complicity, his moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility, and make his testimony subject to grave suspicion, and require that it be weighed with great caution. (Tr. 2632-33). Under Evid.R. 609, a witness' prior convictions are admissible to attack his credibility if the crime was punishable by death or imprisonment of more than one year or involved dishonesty or false statement. Because Espinoza took the stand, he was subject to cross examination about his prior convictions. The fact that the -28- state chose to bring out the conviction on direct examination rather than allowing the defense to elicit it on cross-examination does not alter the relevance of the conviction on the issue of Espinoza's credibility. We cannot say that the guilty plea was used as substantive proof of Keenan's guilt. In light of Keenan's failure to object to the testimony at trial or to request a limiting instruction and because the court properly instructed the jury on the issue of credibility, we find no prejudicial error in the court's instructions. In his fourth assignment of error, Keenan argues he was denied due process of law when the trial court refused to record all side- bar discussions conducted during trial. In his brief before this court, Keenan fails to identify any rulings at sidebar that he claims are erroneous. He argues that, pursuant to United States v. Selva (5th Cir. 1977), 559 F.2d 1303, the absence of a substantial and significant portion of the record is sufficient to mandate reversal of a conviction even where the defendant does not show any specific prejudice or error. However, the trial transcript in this case consisted of some 2700 pages. There is no evidence that "a substantial and significant portion" of the record is absent. Additionally, while the trial court refused Keenan's request to record all sidebar discussions, the court also stated that it would reconsider its ruling if the sidebar involved important issues. However, there is no evidence that Keenan ever renewed his request to record the sidebar conferences. For the foregoing reasons, Keenan's fourth assignment of error is overruled. -29- The issue raised by Keenan's fifth assignment of error is whether the trial court erroneously admitted hearsay testimony by Detective Leo Allen. The challenged testimony includes statements made to Allen by people he interviewed during his investigation of the crime. Statements made to a law enforcement officer during his investigation of a crime and offered to explain the course of his investigation are not hearsay. State v. Price (1992), 80 Ohio App.3d 108,110. See also State v. Moon (1991), 74 Ohio App.3d 162,169. Keenan's fifth assignment of error is overruled. In his sixth assignment of error, Keenan argues the trial court erred in allowing the coroner to testify that the knives admitted into evidence could possibly have caused Klann's death. This argument was addressed by the Ohio Supreme Court in State v. D'Ambrosio (1993), 67 Ohio St.3d 185. The court held that, especially in criminal cases, experts should be allowed to testify in terms of possibility. Id. at 191. The cases cited by Keenan that required expert opinion testimony to be expressed in terms of probability are all civil cases. We agree with the D'Ambrosio case which reasoned that relevant testimony is admissible even if it does not, by itself, constitute proof of a fact. Id. We overrule Keenan's sixth assignment of error. In his seventh assignment of error, Keenan argues he was denied a fair trial when the trial court told the jury he was in jail. After a delay in commencing a day of testimony, the trial court said: -30- This court believes in a jury being told, as taxpayers of this County, the Court had a sentencing in another case, scheduled for 9:00 a.m., a five-minute sentencing hearing, which we ordinarily would do prior to starting in the morning. The Jail, not our deputies here, but the Correction people downstairs, were not able to either locate or bring the defendant up until 10:00 a.m. * * * The system is strained to the point where when we get all the lawyers together, all the defendants together, it is becoming kind of a surprising event, when it happens on time, so I want you to be aware of that. (Tr. 1774-1775) Keenan argues that this comment created an "indicia of guilt." However, we agree with the state that the trial court appears to be referring to the defendant who was to be sentenced that morning, not Keenan. Assuming for the sake of argument that the trial court's comment was made about Keenan, we find that the trial court's instructions about the presumption of innocence were sufficient to overcome any prejudice resulting from one isolated comment. Keenan cites several cases that have held that shackling a defendant during trial is prejudicial. However, there is no evidence that the jury ever saw Keenan in handcuffs or shackles. A trial court's single reference to the fact that a defendant is in jail pales in comparison to the potential prejudicial impact of having a defendant sit shackled at the defense table throughout the trial. We overrule Keenan's seventh assignment of error. -31- Keenan also argues that he was denied a fair trial when the court ordered D'Ambrosio to be handcuffed during his testimony. D'Ambrosio was called as a defense witness. When he entered the courtroom, the state approached the bench and objected to the fact that he was not in handcuffs. The trial court dismissed the jury from the courtroom and then had D'Ambrosio handcuffed. The trial court then brought the jury back in and the proceedings resumed. We find that the trial court acted carefully in an attempt to avoid unfair prejudice. Earlier in the trial, when the state called Edward Espinoza to testify, the defense objected to the state's request that his handcuffs be removed. The trial court ordered him to be handcuffed and ruled that all witnesses who were in prison would be handcuffed. The discussion took place while the jury was out of the courtroom. When D'Ambrosio was called as a defense witness, the state objected to the fact that he was brought into court without handcuffs. The initial objection was made at sidebar, outside the hearing of the jury. Before ordering D'Ambrosio handcuffed in compliance with this prior ruling, the judge sent the jury out of the courtroom. We find that the court's actions were proper under the circumstances and the likelihood of prejudice was minimal. Keenan's eighth assignment of error is overruled. In his tenth, eleventh, and twelfth assignments of error, Keenan argues that several instances of prosecutorial misconduct denied him a fair trial. Our review of the record indicates that -32- Keenan raised no objection to any of the statements at trial and, therefore, has waived any error therein. Notwithstanding the above, we proceed to address Keenan's argument that several comments made by the prosecution during closing argument constituted improper comments on his failure to testify at trial. Keenan argues that the prosecutor made improper references to the absence of evidence contradictory to that presented by the state, questions remaining about Keenan's alibi, his letters to potential witnesses, and his whereabouts when D'Ambrosio and Espinoza were arrested. We find that none of the challenged statements constituted comments on Keenan's failure to testify. References in closing argument to uncontradicted evidence are not comments on the defendant's failure to testify where the comments are intended to highlight the strength of the state's case rather than the defendant's silence. State v. Ferguson (1983), 5 Ohio St.3d 160,163. In addition, the jury was instructed not to consider Keenan's failure to testify for any purpose. We find nothing improper about the prosecutor's comments. See State v. Lockett (1976), 49 Ohio St.2d 48, 65. Keenan also claims the prosecutor unfairly commented upon the credibility of his witnesses by saying that Espinoza "is telling the truth, because his story at that point in time, from what the detectives know, it fits. It makes sense." Keenan also objects to the prosecutor's statements that "we cannot manufacture witnesses and we don't", that Paul Lewis was the only person "who got up on -33- the witness stand and basically told everything that happened just as it happened" and that David Keenan lied during his testimony. It is improper for a prosecutor to give his opinion about whether a witness was testifying truthfully. State v. Jacks (1989), 63 Ohio App.3d 200, 210. However, improper statements by a prosecutor do not mandate reversal unless the defendant was denied a fair trial. State v. Kelly (1993), 93 Ohio App.3d 257, 266. When viewed in the context of the entire trial and of the other evidence of Keenan's guilt, we cannot find that the prosecutor's comment denied Keenan a fair trial. Keenan also asserts the prosecutor improperly argued that Keenan should receive the death penalty because Klann was not given a chance. We disagree. During argument in the penalty phase of trial, the prosecutor said, "Was Tony Klann kidnapped, deprived of his liberty? Deprived of his life, not his liberty. He didn't have a chance." The prosecutor never said that Keenan should receive the death penalty because he didn't give Klann a chance. We find that this comment fell within the bounds of the zealous arguments that prosecutors may properly make and did not constitute an attempt to introduce non-statutory aggravating factors into the case. Keenan also argues that the prosecutor improperly argued that Keenan was not an aider and abettor after the trial court instructed the jury that he was being prosecuted as an aider and abettor. Our review of the record reveals that the prosecutor's statement that Keenan was not an aider and abettor was made during -34- closing argument in the penalty phase of the trial. The judge's instructions about aiding and abetting were given earlier during the guilt phase of the trial. We must note that the trial court instructed the jury that "depending upon your factual findings the law on aider and abettor may be applicable to the crimes charged here." (Tr. 2631) (Emphasis added) In his instructions on the two murder specifications, the trial court told the jury that they must decide whether Keenan was "either the principal offender in the commission of the aggravated murder or, if not principal offender, committed the aggravated murder with prior calculation and design." (Tr. 2642) The prosecutor's argument during the penalty phase that Keenan was the principal offender was not inconsistent with the instructions given earlier by the trial court. We also disagree with Keenan's argument that the prosecutor's questions to D'Ambrosio about a rejected plea offer placed the prosecutor's credibility in issue. D'Ambrosio testified on direct examination that Prosecutor Frank Gasper had offered him a deal to save his life if he agreed to testify against Keenan. On cross- examination, Gasper attempted to get D'Ambrosio to admit that he Gasper asked him if he would tell the truth if called to testify. D'Ambrosio denied being asked that question. Keenan cites State v. Daughtery (1987), 41 Ohio App.3d 91 and argues that it is improper for a lawyer to rest his case without producing any "admissible evidence of information harmful to his adversary that he has, in the presence of the jury, asserted to be true in a question to and that was denied by an adverse witness -35- where the information is not otherwise in evidence." However, in this case, it was D'Ambrosio who brought up the conversation on direct examination. The conversation was already in evidence when the prosecutor asked the challenged questions on cross examination. There was nothing improper about the prosecutor's attempts to elicit the balance of the conversation on cross-examination. Finally, we reject Keenan's argument that the state improperly referred to the fact that witnesses had not testified at Keenan's first trial. Prior to trial, the trial court told the parties the jury would be told there was prior litigation previous to this trial and instructed to render their verdict solely on the evidence presented in the current trial. The court also told the parties not to make any mention of a verdict rendered in the prior trial. At no time did the trial court prohibit the parties from mentioning the prior trial. Keenan's tenth, eleventh, and twelfth assignments of error are overruled. In his twenty-sixth assignment of error, Keenan argues that the trial court erred in refusing to dismiss the death penalty specification after the prior reversal of his conviction and death sentence. He bases his argument on State v. Penix (1987), 32 Ohio St.3d 369. In Penix, the Ohio Supreme Court upheld a court of appeals decision to vacate Penix's death sentence because of erroneous jury instructions given during the penalty phase of his trial. The court remanded the case to the trial court for resentencing and ordered the trial court to impose a sentence of -36- life imprisonment. The court held that "when a case is remanded to the trial court following vacation of the death sentence due to error occurring at the penalty phase of the proceeding, the trial court, in resentencing the offender, is limited to the sentences of life imprisonment with parole eligibility after serving twenty full years of imprisonment or life imprisonment with parol eligibility after serving thirty full years of imprisonment." Penix at 373. See also R.C. 2929.06. We find that the Penix decision is inapplicable to this case. Penix's conviction was never reversed, only his death sentence. The supreme court ruled that Penix could not be sentenced to death without the participation of a jury. The court also ruled that the decisions leading to a death sentence could only be made by the same jury that convicted Penix in the guilt phase. Since Penix's jury had long since been discharged, and because there was no statute permitting a second jury to be impaneled and to make a recommendation on the death penalty on resentencing, the trial judge could not impose a death sentence. In this case, Keenan's conviction was reversed by the Ohio Supreme Court in State v. Keenan (1993), 66 Ohio St.3d 402. Upon remand, Keenan received a new jury trial which resulted in a conviction. Unlike the Penix case, Keenan was sentenced to death pursuant to a death penalty recommendation made by the same jury that tried the guilt phase of his case. Penix did not apply to preclude consideration of a death sentence on retrial in this case. Keenan's twenty-sixth assignment of error in overruled. -37- In his thirty-third, thirty-sixth, and thirty-eighth assignments of error, Keenan argues that his death sentence constituted cruel and unusual punishment. The Ohio Supreme Court has consistently rejected constitutional challenges to Ohio's capital sentencing scheme. See State v. Henderson (1988), 39 Ohio St.3d 24,29; State v. Frazier (1991), 61 Ohio St.3d 247, 257. Therefore, we overrule these assignments of error. See State v. Poindexter (1988), 36 Ohio St.3d 1, 3. In his thirty-seventh assignment of error, Keenan argues the trial court denied him a fair trial by rushing his case to judgment and by seeking a public view of his execution. The trial court stated as follows: I am further ordering the warden or authorities in charge of executing this sentence to permit and allow, if they so desire, representatives of television, radio and the media to be present and have access to broadcast such procedure. R.C. 2949.22 provides that a death sentence shall be executed within a specially prepared enclosure that shall exclude public view. Under O.A.C. Section 5120-9-54(8), the director of rehabil- itation may authorize representatives of the news media to be present at an execution. However, O.A.C. Section 5120-9-54(B) provides that "no photographic equipment, video tape equipment, or electronic recording equipment shall on the day of execution be permitted in or about the execution chamber or within the area of the institution in which the condemned prisoner resides." -38- The statute makes no provision for televising executions. The court did not order the execution to be televised. The court's comments did nothing more than confirm the prison personnel's right to authorize media representatives to attend the execution. There is no evidence that the trial court's comment was made in order to "politicize" the case through notoriety. Furthermore, before sentencing Keenan, the trial court said that it had made an independent finding that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Keenan's thirty- seventh assignment of error is without merit. In his thirty-ninth assignment of error, Keenan argues he was denied the effective assistance of counsel. In order to prevail on an ineffective assistance of counsel claim, the defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 693. The defendant must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 698. In State v. Frazier (1991), 61 Ohio St.3d 247, 253, the Ohio Supreme Court recognized Strickland's advisement that a reviewing court must afford substantial deference to strategic decisions of trial counsel. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all to easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. -39- Id. In order to prevail on his ineffective assistance of counsel claim, Keenan must overcome a strong presumption that trial counsel's conduct can be attributed to sound trial strategy. Id. Keenan lists several instances of alleged mistakes by trial counsel including failures to object to testimony presented by the state, improper questioning of witnesses, and a misstatement of sentencing options. After reviewing the evidence and Keenan's arguments, we are unable to conclude that trial counsel's conduct fell below an objective standard of reasonableness. We find that the challenged testimony was relevant, admissible evidence and that trial counsel's failure to object was proper. The allegedly erroneous questions asked by trial counsel fell within the bound- aries of zealous representation. Also, although trial counsel erroneously told the jury that it could consider sentencing Keenan to twenty or thirty years in prison as an alternative to the death penalty, this error was made harmless by the subsequent instruc- tions by the trial court which correctly explained that the jury could consider sentencing Keenan to "life imprisonment with parole eligibility after thirty (30) full years of imprisonment or *** life imprisonment with parole eligibility after twenty (20) full years of imprisonment." We also find that Keenan has failed to demonstrate that the outcome of his trial would have been different but for the alleged errors. Absent such evidence, we are unable to conclude that trial -40- counsel was ineffective. Keenan's thirty-ninth assignment of error is overruled. Keenan's conviction is affirmed. Pursuant to R.C. 2929.05, we now proceed to an independent evaluation of whether the aggravating circumstances in this case outweigh any mitigating factors in order to determine whether Keenan's death sentence is appropriate. The evidence in this case established that Keenan, along with two accomplices, forced Anthony Klann into Keenan's truck, where he was threatened, beaten, and terrorized. They then drove Klann to Doan's Creek. Once there, Keenan slashed Klann's throat, severing his trachea in two places. Klann was then stabbed in the chest and back by D'Ambrosio after Keenan said "finish him." This evidence shows beyond a reasonable doubt that Keenan purposely caused the death of Anthony Klann during the course of or immediately after kidnapping him. A review of the statutory factors in mitigation reveals that Klann did nothing to induce or facilitate the offense; there is no evidence that Keenan acted under duress, coercion, or strong provocation; Keenan was not suffering from any mental disease or defect that impaired his capacity to understand the criminal nature of his actions or to conduct himself in a lawful manner; Keenan was 39 when he committed the offense and could not be considered a youthful offender; Keenan had a prior record of violent crime; and Keenan acted as a principal offender by slashing Klann's throat. We find no evidence of any other factors relevant to deciding whether Keenan should be sentenced to death. Having found no -41- evidence in mitigation of Keenan's acts, we find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. Pursuant to R.C. 2929.05, we find that the death sentence in this case is neither excessive nor disproportionate to the penalty imposed in other felony murder cases involving kidnapping. See State v. Brewer (1990), 48 Ohio St. 3d 50; State v. Seiber (1990), 53 Ohio St.3d 22; State v. Fox (1994), 69 Ohio St.3d 183. Keenan's conviction and death sentence are affirmed. -42- 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. HARPER, J., and O'DONNELL, 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. -43- APPENDIX ASSIGNMENTS OF ERROR I. DEFENDANT WAS DENIED THE RIGHT TO HAVE HIS OWN COUNSEL AS GUARANTEED BY THE OHIO AND FEDERAL CONSTITUTION. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT PERMIT THE DEFENDANT TO FULLY PARTICIPATE AS CO-COUNSEL TO INCLUDE ARGUMENT TO THE JURY AND TRIAL PREPARATION PARTICIPATION. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE PROSECUTOR WAS PERMITTED TO CONSTRUCTIVELY AMENDED THE INDICTMENT BY ALTERING THE DATE OF THE OFFENSE. [sic] IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE THE (sic) COURT REFUSED TO RECORD THE ENTIRE PROCEEDINGS. V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED HEARSAY EVIDENCE FROM DET. LEO ALLEN. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED THE CORONER TO TESTIFY CONCERNING POSSIBILITIES THAT THE KNIVES IN EVIDENCE COULD HAVE CAUSE (sic) THE WOUNDS ON THE DECEDENT. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE COURT BROUGHT TO THE ATTENTION OF THE JURY THE DEFENDANT WAS IN JAIL. VIII. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT REQUIRED THAT A DEFENSE WITNESS BE SHACKLED AND HANCUFFED (sic) DURING HIS TESTIMONY. IX. DEFENDANT WAS PREVENTED FROM PRESENTING A FULL AND COMPLETE DEFENSE BY REASON OF INTERFERENCE FROM THE COURT. X. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTION ON THE ARGUMENT TO THE JURY COMMENTED ON THE FACT THAT THE DEFENDANT DID NOT TESTIFY. XI. DEFENDANT WAS DENIED A FAIR TRIAL DUE TO IMPROPER ARGUMENT BY THE PROSECUTOR AND THE IMPROPER QUESTIONING IF [sic] WITNESSES WHICH PLACED THE CREDIBILITY OF THE PROSECUTOR IN ISSUE AND ATTESTING TO THE VERACITY OF STATE'S WITNESS. -44- XII. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF INSTANCES OF PROSECUTORIAL MISCONDUCT DURING THE COURSE OF THE TRIAL. XIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AMENDED THE INDICTMENT SO AS TO CHARGE THE DEFENDANT WITH THE SUBSTANTIVE OFFENSE OF CONSPIRACY. XIV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONSTRUCTIVELY AMENDED THE INDICTMENT TO THE OFFENSE AND SENTENCING (sic) THE DEFENDANT TO DEATH FOR CONSPIRACY. XV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY INSTRUCTED THE JURY CONCERNING THE CASUAL (sic) RESPONSIBILITY OF THE DEFENDANT. XVI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY CONCERNING THE PRESUMPTION ARISING FROM TWO OR MORE PERSONS HAVING A COMMON PURPOSE. XVII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT MISINFORMED THE JURY CONCERNING THE CRIMINAL ACT AND, IN EFFECT, AMENDED THE STATUTE. XVIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO AMEND THE INDICTMENT BY INSTRUCTING THAT THE PROSECUTION CLAIMED THE USE OF A DANGEROUS WEAPON. XIX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONSTRUCTIVELY AMENDED THE INDICTMENT CONCERNING THE DATE DESPITE THE FACT THAT THE DEFENDANT HAD FILED AN ALIBI NOTICE. XX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INFORMED THE JURY CONCERNING THE PLEA OF A CO-DEFENDANT WITHOUT GIVING ANY LIMITING INSTRUCTIONS CONCERNING THE EFFECT OF THAT PLEA. XXI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT INSTRUCT UPON ANY LESSER INCLUDED OFFENSES. XXII. THE COURT COMMITTED PREJUDICIAL ERROR AND DENIED THE DEFENDANT DUE PROCES OF LAW WHEN THE JURY WAS NOT REQUIRED TO SPECIFICALLY FIND IN WHICH MANNER THE DEFENDANT HAD BEEN FOUND GUILTY. XXIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT NEVER INFORMED THE JURY AS TO THE EFFECT OF PRIOR CONVICTIONS CONCERNING THE EVALUATION OF TESTIMONY OF WITNESSES. -45- XXIV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT MODIFIED THE DEFINITION OF PROOF BEYOND A REASONABLE DOUBT. XXV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY UPON A NON-ISSUE MOTIVE. XXVI. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND SUBJECTED TO DOUBLE JEOPARDY WHEN THE COURT REFUSED TO DISMISS THE DEATH PENALTY SPECIFICATION BY REASON OF THE PRIOR REVERSAL IN THIS CASE. XXVII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT, IN ITS COMMENTS TO THE JURY AT THE SENTENCING PHASE, UNCONSTITUTIONALLY LESSENED THE RESPONSIBILITY OF THE JURY CONCERNING ITS DUTY CONCERNING THE DEATH PENALTY. XVIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT EQUATED THE BURDEN OF GOING FORWARD WITH THE BURDEN OF PRODUCTION, THUS IMPLYING BURDEN OF PROOF. XXIX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AFFIRMATIVELY MISINSTRUCTED THE JURY CONCERNING THE NATURE OF MITIGATION FACTORS. XXX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO IMPOSE A SENTENCE OF DEATH BASED UPON NON- STATUTORY AGGRAVATING CIRCUMSTANCES. XXXI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE THE IMPRESSION TO THE JURY THAT THERE WERE AGGRAVATING CIRCUMSTANCES THAT HAD BEEN PROVEN IN THIS CASE WHEN ONLY A SINGULAR AGGRAVATING CIRCUMSTANCES (sic) WAS SHOWN TO EXIST. XXXII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY ADVISED THE JURY AS TO MITIGATING FACTORS OF CHARACTER. XXIII. DEFENDANT WAS SUBJECTED TO A CRUEL AND UNUSUAL PUNISHMENT AND UNCONSTITUTIONAL MULTIPLE PUNISHMENT WHEN THE COURT FAILED TO MERGE THE KIDNAPPING AND AGGRAVATED MURDER CONVICTIONS SEPARATELY WHEN IT SENTENCED THE DEFENDANT FOR KIDNAPPING WHICH ALSO SERVED AS A PREDICATE FOR THE IMPOSITION OF A DEATH SENTENCE. XXXIV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY CONCERNING ALL OF THE STATUTORY MITIGATION FACTORS WHEN EVIDENCE ON ALL OF THESE FACTORS WERE (sic) NOT PRESENTED IN THIS CASE. -46- XXXV. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE LAW PERMITS AN AGGRAVATING CIRCUMSTANCE WHICH CONSISTS OF AN ATTEMPT TO BE ELEVATED INTO A CIRCUMSTANCE THAT WILL PERMIT THE IMPOSITION OF A DEATH PENALTY. XXXVI. DEFENDANT WAS SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT BECAUSE THE UNDERLYING FELONIES ARE IMPERMISSIBLY ENHANCES (sic) SO AS TO AUTHORIZE THE IMPOSITION OF A DEATH PENALTY WHEN EITHER SINGULARLY OR CUMULATIVELY, SUCH PUNISHMENT IS PROHIBITED. XXVII. DEFENDANT WAS DENIED A FAIR TRIBUNAL BECAUSE THE TRIAL COURT RUSHED TO JUDGMENT TO IMPOSE A DEATH SENTENCE AND SOUGHT TO HAVE A PUBLIC VIEW OF THE EXECUTION. XVIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND SUBJECTED TO A CRUEL AND UNUSUAL PUNISHMENT BECAUSE THE IMPOSITION OF A DEATH SENTENCE VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS, 2,9,10 AND 16 OF ARTICLE I OF THE OHIO CONSTITUTION. .