COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 68612 STATE OF OHIO : : Plaintiff-Appellee : SUPPLEMENTAL : JOURNAL ENTRY vs. : AND : APPELLATE REVIEW HARRY D. MITTS, JR. : OF DEATH SENTENCE : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 19, 1996 CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-313539 JUDGMENT : AFFIRMED. APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DAVID L. DOUGHTEN, ESQ. Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 THOMAS M. SHAUGHNESSY, ESQ. 11510 Buckeye Road Cleveland, Ohio 44104 DYKE, P.J.: 1 Pursuant to R.C. 2929.05(A), this Court certifies that it has reviewed the judgment, the sentence and all of the evidence contained in the record and enters the following independent findings: (1) The aggravating circumstances for which the defendant was found guilty, as merged in this court's Journal Entry and Opinion, outweigh the mitigating factors in this case. (2) The offenses and aggravating circumstances which the defendant was found guilty of committing were proven beyond a reasonable doubt. (3) The death sentence is not excessive or disproportionate to the penalty imposed in similar cases. (4) The evidence supports the findings by the trial jury and trial judge that the defendant was guilty of aggravated murder and the aggravating circumstances charged in the indictment. (5) The trial judge properly weighed the aggravating circum- stances for which the jury found appellant guilty and the mitigating factors. (6) The sentence of death is appropriate in this case. MCMONAGLE, J., AND PATTON, J., CONCUR ANN DYKE PRESIDING JUDGE 1 R.C. 2929.05(A) reads, in pertinent part: Any court of appeals that reviews a case in which the sentence of death is imposed shall file a separate opinion as to its findings in the case with the clerk of the supreme court. The opinion shall be filed within fifteen days after the court issues its opinion and shall contain whatever information is required by the clerk of the supreme court. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68612 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HARRY D. MITTS, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-313539 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 4403 St. Clair Avenue BY: DAVID ZIMMERMAN, ESQ. Cleveland, Ohio 44103 ASSISTANT COUNTY PROSECUTOR The Justice Center THOMAS M. SHAUGHNESSY, ESQ. 1200 Ontario Street 11510 Buckeye Road Cleveland, Ohio 44113 Cleveland, Ohio 44104 - 2 - DYKE, P.J.: Defendant Harry D. Mitts, Jr. appeals from his convictions for two counts of aggravated murder with death penalty specifications and two counts of attempted murder. Defendant raises eleven assignments of error which challenge these convictions as well as the trial court's imposition of the death penalty. For the reasons set forth below, we affirm. On August 25, 1994, defendant was indicted pursuant to a four count indictment in connection with the shooting deaths of Garfield Heights Police Sgt. Dennis Glivar and John Bryant, and the attempted murders of Garfield Heights Police Lt. Thomas Kaiser and Maple Heights Police Officer John Mackey. Count one charged the defendant with aggravated murder, and with firearm, peace officer, and three mass murder specifications. Count two charged the defendant with aggravated murder and with firearm and three mass murder specifications. Counts three and four charged defendant with attempted murder with firearm and peace officer specifications. Defendant pleaded not guilty and the matter proceeded to a jury trial on October 24, 1994. The state's evidence established that in October 1993, defendant developed an interest in weapons and target shooting. By August 1994, defendant was a member of the Stonewall Shooting Range and owned a 9 mm Ruger automatic handgun, a .22 caliber handgun, a .44 Magnum handgun, and thousands of rounds of ammunition for these weapons. On August 14, 1994, defendant arrived at Stonewall at - 3 - approximately 1:50 p.m. and practiced shooting the .44 Magnum. He conversed with the owner and another member of the shooting range. It is undisputed that he displayed no signs of intoxication at this time. Defendant left the shooting range at approximately 5:30 p.m., then returned to his home at 5150 E. 88th Street in the Hillcrest Apartment complex in Garfield Heights. At some time between 7:00 p.m. and 8:00 p.m., Timothy Rhone was helping his sister move into an upstairs unit of the same building where defendant resided and he observed defendant with a firearm protruding from his back. Approximately 15 minutes later, Rhone saw defendant inside the apartment building wearing an ear set and carrying the weapon. Defendant pointed the gun at Rhone and said, "Get out or you will die." Rhone stood stunned in the doorway and defendant again ordered Rhone out and stated that he was not joking. Rhone exited and told his mother to call 9-1-1, then went to a back parking lot to wait for the police. At this time, Tracey Griffin and John Bryant were returning from the grocery store and walked across the lot toward their apartment building at the Hillcrest complex. Defendant approached the couple and aimed a weapon at Bryant, which illuminated a red dot on Bryant's chest from a laser scope. Defendant uttered a racist remark and shot Bryant, an African-American. Defendant then continued walking and shooting randomly in the parking lot. Defendant subsequently turned around to return to the area, - 4 - and reloaded his weapon. Rhone attempted to distract defendant while Rhone's brother and brother-in-law assisted Bryant and Griffin. Defendant ordered the group to leave Bryant where he was, but they hurriedly brought him to Rhone's apartment where they called the police and attempted to administer aid. Tracey Griffin, Timothy Rhone, and Daniel O'Brien, a visitor at the complex, further established that defendant did not appear intoxicated during any of the foregoing events. The state next established that Garfield Heights Police Patrolman John Cermak was dispatched to the area at 8:15 p.m. As Cermak's vehicle approached, defendant fired eight to ten rounds at the officer. Cermak swerved his vehicle to avoid being struck and fired four shots at defendant. He then observed Garfield Heights Lt. Thomas Kaiser and Sgt. Dennis Glivar approaching and he radioed for them to use extreme caution. Lt. Kaiser and Sgt. Glivar entered the 5150 East 88th Street apartment and located Rhone's apartment on the second floor. The officers checked Bryant and determined that he had no pulse. They then learned that the suspect was on the first floor and left Rhone's apartment in order to secure the building for the entry of paramedics. Sgt. Glivar proceeded down the steps armed with a shotgun and Lt. Kaiser followed armed with his service weapon. As Sgt. Glivar reached the landing, defendant opened his front door, positioned in the "shooter's crouch," and armed with the .44 Magnum in one hand and the 9 mm automatic weapon in the other, fired upon - 5 - the officers. Sgt. Glivar sustained seven gunshot wounds and collapsed near the front door. Lt. Kaiser was struck in the hand, but he returned fire, striking defendant in the foot and hip. Lt. Kaiser was also struck by another shot, but it was apparently deflected by his bullet-proof vest. Defendant fled into his apartment and Lt. Kaiser returned upstairs where he began negotiating with defendant in order to end the attack. Defendant replied that Lt. Kaiser would have to come down and kill him. Later, defendant overheard requests for assistance from the S.W.A.T. team, and he stated that he would kill the entire S.W.A.T. team. Upon learning that Sgt. Glivar was injured, Officer Cermak entered the building through a service entrance and pulled him from the building. Sgt. Glivar was treated at Marymount Hospital but died from his injuries. Lt. Kaiser continued to negotiate with defendant over the next twenty minutes. During this time, defendant threatened to kill Griffin, and he stated, "I've been drinking bourbon." According to Lt. Kaiser, the defendant showed no signs of intoxication. Following his conversation with Lt. Kaiser, defendant emerged from the apartment, fired shots at the officers positioned outside, and then fled back inside. Lt. Kaiser and other officers evacuated the other residents from the apartment. Bryant was also evacuated at this time but he had died from a gunshot wound which lacerated his aorta and caused him to bleed to death within minutes of being - 6 - shot. At approximately 8:25 p.m., defendant called the home of his ex-wife, Janice Salerno, and her husband John Salerno, who is the Chief of Police of Grand River, Ohio. Defendant threatened Janice and she hung up on him. In a second call moments later, defendant spoke to Chief Salerno and stated that he had just shot a couple of police officers and another individual. In response, Chief Salerno asked defendant whether he had been drinking and defendant stated that he had consumed a bottle of bourbon and was now drinking Scotch whisky. According to Chief Salerno, defendant sounded intoxicated and his affect alternated between laughter and anger. In addition, defendant reported having difficulty loading a weapon. Finally, Chief Salerno stated that defendant indicated that he had planned to kill Janice and Salerno, but he decided not to do so out of concern for his young daughter. Maple Heights Police Officer John Mackey arrived at the scene at approximately 8:38 p.m. in response to a call for mutual aid. Resuming negotiations, Mackey asked defendant about his telephone conversation, and defendant stated that he was speaking to his ex- wife's new husband. Officer Mackey continued to converse with defendant in order to build a rapport with him. During this conversation, defendant stated that he had consumed vodka, but according to Mackey, defendant did not seem intoxicated. Also at this time, defendant fired random shots with Sgt. Glivar's shotgun. He shot at the mailboxes directly across from his front door then - 7 - complained that the shot was "a little high." Officer Mackey and Garfield Heights Police Sgt. Robert Sackett asked defendant to throw Sgt. Glivar's shotgun out of the apartment for the ostensible purpose of "sparing the officers extra paperwork" and defendant did so. He then loaded one of his remaining weapons and fired a shot which struck a wall and then struck Officer Mackey in the leg. The police fired tear gas into the apartment at approximately 1:00 a.m. and made entry an hour later. Defendant was lying on the living room floor and was injured and bleeding. After a brief struggle, defendant was arrested and transported to Marymount Hospital. At this time, defendant stated that he did not want treatment and told medical personnel to let him die. He then asked what had happened to the policeman that he shot, and a nurse reported that he had died. Defendant said, "Oh, shit," then lay down. At 3:43 a.m., medical personnel from Marymount withdrew a blood sample from defendant which, upon later examination, revealed a .21 blood alcohol content. After being treated at Marymount for approximately fifteen minutes, defendant was taken by Life Flight helicopter to MetroHealth Medical Center for further treatment. Garfield Heights Police Sgt. Gary Wolske, Marymount nurse Janine Seuffert and Life Flight nurse Clyde Gentry, who were with defendant at this time indicated that he appeared sober, and in light of his questions concerning the officer whom he had shot, defendant did not appear to exhibit any memory impairment, however, intravenous administra- - 8 - tion of saline solution and administration of oxygen would lessen the effects of alcohol. The defendant elected to present evidence and presented the testimony of Sonya McKee, M.D., of the Cuyahoga County Court Psychiatric Clinic, and Maple Heights Police Det. Ronald Arko. Dr. McKee testified that she thoroughly interviewed defendant in connection with this matter and his background did not reveal racial hatred, and did reveal a prior identification with law enforcement figures. Dr. McKee further established that in certain individuals who have a history of drinking, heavy drinking may produce a "blackout." Moreover, with intoxication, there is an impaired ability to "lay down" or register memories, but there may be "spotty recall" of certain events. Short term memory is functioning during the period of intoxication but there is impairment of long term memory which is generally confined to the period of intoxication. In her evaluation of defendant, Dr. McKee learned that defendant had never reported a blackout prior to this incident. However, defendant had a history of very heavy drinking prior to 1981. In 1981, defendant completely abstained from alcohol for eight months. In the months preceding the shootings, he drank one or two beers a few times a week, and did not drink hard liquor. Defendant also reported that two days before the shootings, he purchased a bottle of bourbon and a bottle of Scotch whisky. On - 9 - the evening of August 14, 1994, he could recall pouring himself a drink of bourbon mixed with a soft drink, but he could not recall if he drank it. He next recalled going outside to get a jacket and going into the apartment. The police arrived, and he heard a helicopter. Finally, defendant remembered waking up in the hospital and seeing the news reports of what he had done. Based upon her evaluation, as well as other statements indicating that defendant had consumed a bottle of bourbon, Dr. McKee concluded that on the date of the offense he had become intoxicated and that the intoxication had impaired his memory. With regard to defendant's blood alcohol level following his arrest, Dr. McKee stated that it would have taken seventeen shots of alcohol in order for defendant's blood alcohol level to reach .21. In addition, since this reading was obtained almost two hours after his arrest, it would have been higher at an earlier time. It was not established with any certainty, however, that the .21 blood alcohol level reading at 3:43 a.m. on August 15, 1994, indicated that he was intoxicated far beyond that point at 8:15 p.m. on August 14, 1994, the time of the fatal shootings. That is, the .21 reading could not be extrapolated backward to establish defendant's blood alcohol level at the time of the shooting. Defendant's precise blood alcohol level at the time of the shooting could not be determined. In addition, Dr. McKee stated that even though one may be intoxicated to the point of suffering memory impairment, one could - 10 - nonetheless have the ability to form the specific intent to act in a purposeful manner. She further stated that where one displays that he is able to act purposefully in some areas, "there would be no question in [her] mind that they were able to act purposefully in that other area such as in the area of shooting and killing people." (Tr. 1204). Det. Arko testified that he was called to the scene as part of a crisis intervention team. He arrived at the apartment complex at approximately 9:42 p.m. and acted as a secondary negotiator. During police negotiations, defendant was extremely agitated, screamed, and used profanities. The negotiators subsequently indicated in their incident reports that the "suspect sounded highly intoxicated with very slurred speech." Det. Arko stated that it would have been possible for defendant to become intoxicated following the shootings, but there was no evidence of blood on the bottles and defendant was wounded in the hip and foot following the shootings. Following the presentation of its case, the defense requested a jury instruction regarding whether voluntary intoxication rendered defendant incapable of forming specific intent. The trial court denied this request, and the matter was then submitted to the jury. The jury returned guilty verdicts on all counts and all specifications and the matter subsequently proceeded to the penalty phase. At the penalty phase, defendant presented the testimony of - 11 - George and Christine Fontana, defendant's former in-laws, Larry Mitts and Janet Jajola, defendant's brother and sister, and James Eisenberg, a psychologist with the Lake County Forensic Center. In addition, defendant made an unsworn statement. The Fontanas established that defendant had married their daughter Janice approximately thirteen years earlier and the couple had a daughter Melanie, now nine years old. The Fontanas had a good relationship with defendant and he helped them with work at their house. They observed that he had an easy-going nature and was a loving and caring father. Defendant and Janice had divorced three years earlier. The Fontanas argued with Janice when she decided to remarry a short time later, and they had not spoken with her since that time. They were able to visit with Melanie, however, through their continued contact with defendant. Finally, they testified that they had never seen defendant drink heavily and they had never seen him lose his temper. They were shocked by the shootings and believed that defendant had "snapped." Defendant's siblings established that their family frequently moved while the children were growing up because their father was in the U.S. Navy. Defendant worked while in school and paid for his own things, then enlisted in the Coast Guard shortly before he was to graduate from high school. Defendant was subsequently stationed in Staten Island, New York, and he remained there and married following his honorable discharge from the Coast Guard. A short time later, defendant was divorced and moved back to - 12 - Cleveland where he met Janice and decided to marry her. This decision strained defendant's relationship with his brother. They later reconciled following the death of their father, and they resumed contact after defendant's divorce from Janice. Finally Mitts and Jajola testified that they knew defendant to be gentle and laid back. They stated that the man who had committed the shootings was not the person they had known, and they asked the jury to spare his life. James Eisenberg testified that he met with defendant for approximately twelve and one-half hours in the months immediately following his arrest. Eisenberg stated that defendant lacked a criminal record, had no history of acting out, and had a strong employment history, which are unusual for criminal defendants facing capital charges. From defendant's blood alcohol reading of .21, Eisenberg opined that defendant was highly intoxicated at the time of the offenses and that the offenses would not have occurred but for defendant's alcohol consumption. On cross-examination, Eisenberg admitted that it was simply his assumption that defendant was intoxicated at the time of the offenses. In addition, he stated that alcohol was not an excuse for what had happened and that defendant still knew what he was doing while under the influence of alcohol. He stated that the alcohol consumption was relevant to the issue of mitigation of culpability, however. In a brief unsworn statement, defendant apologized to the - 13 - victims and their families and indicated that he did not remember the incident. He stated that he had a good life before the offenses, and asked the jury to spare his life. The matter was subsequently submitted to the jury. With regard to both aggravated murder convictions, the jury found that the aggravating circumstances outweighed the mitigating factors, and it recommended that defendant receive the death penalty. Upon its independent review the trial court sentenced the defendant to death on both aggravated murder convictions. In addition, the court sentenced defendant to consecutive terms of ten to twenty- five years imprisonment on the attempted murder convictions. Defendant now appeals and assigns eleven errors for our review. I. Defendant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO CHARGE THE JURY ON THE DEFENSE OF VOLUNTARY INTOXICATION. Within this assignment of error, defendant contends that the trial court committed reversible error in the guilt phase when it refused to instruct the jury on the defense of intoxication. The general rule in American jurisprudence is that voluntary intoxication is not a defense to any crime. State v. Wolons (1989), 44 Ohio St.3d 64, 68. See, also, ALI Model Penal Code Art. 2, Section 2.08. Ohio concurs with this general rule. State v. Wolons, supra. However, voluntary intoxication is a defense in Ohio where specific intent is a necessary element of the crime and - 14 - "the intoxication was such as to preclude the formation of such intent ***." State v. Hicks (1989), 43 Ohio St.3d 72, 75, quoting State v. Fox (1981), 68 Ohio St.2d 53, 55. In order to raise this defense, "evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source ***," i.e., evidence which, if believed, would support an acquittal. State v. Hicks, supra, quoting State v. Robinson (1976), 47 Ohio St.2d 103, 112. Moreover, it has been stated that "[t]he only persons who could successfully raise a reasonable doubt as to their capacity to form specific intent essential to the felony charged must *** be so intoxicated as to be mentally unable to intend anything ***." Wertheimer, Diminished Capacity Defense to Felony-Murder, 23 Stanford L. Rev. 799, 805, quoted in State v. Jackson (1972), 32 Ohio St.2d 203, 206. Accord State v. Otte (1996), 74 Ohio St.3d 555, 564. Ohio law is also clear that it is within the sound discretion of the trial court to determine whether the evidence presented is sufficient to require a jury instruction, State v. Wolons, supra; State v. Hicks, supra, due to "deep seated distrust of the relia- bility of such evidence." Id., quoting State v. Fox, supra. The Fox Court explained: Given the admissibility of evidence of intoxication, the issue is whether the trial court erred by refusing to go further and charge the jury on the possibility intoxication negated formation of the specific intent to attempt murder. This court first addressed this precise issue in Nichols v. State (1858), 8 Ohio St. 435. In that case Caleb Nichols was tried by jury for attempted murder. On - 15 - appeal, Nichols claimed, among other errors, the failure of the trial court to instruct that drunkenness should be considered by the jury in determining the existence of the malicious intent charged. After `somewhat anxious deliberation,' we concluded that `a proper regard to the public safety in the practical administration of criminal justice' mandated introduction of the evidence of intoxication, `to show that the accused did not at the time intend to do the act which he did do.' Nichols, supra, at 439. But we refused to require a jury instruction to be given on the question, stating as follows: `*** [W]hen we admit evidence of intoxication to rebut *** a charge of deliberation and premeditation, *** we think we have gone far enough; and that, looking to the practical administration of the criminal law, a due regard to the public safety requires that the mere ques- tion of malice should be determined by the circumstances of the case, aside from the fact of intoxication, as in other cases.' Id. This court's denial of a right to a jury charge in Nichols was based on a deep seated distrust of the reliability of such evidence: `Intoxication is easily simulated. It is often voluntarily induced for the sole purpose of nerving a wicked heart to the firmness requisite for the commission of a crime soberly premeditated, or as an excuse for such crime.' Id. Rather than impose a strict rule of criminal procedure, we left the trial judge with discretion to handle the evidence and submit it to the jurors in the appropriate manner. Subsequent cases decided by this court have recog- nized the appropriateness of a special jury charge on the effect of intoxication on formation of intent when that issue is properly raised by the evidence. But this court has never found it necessary to promulgate a rule to regulate judges in this matter. Nor is this court well suited to make such a rule. This matter is best left to the discretion of the experienced trial judge. State v. Fox, supra, at 55-56. Finally, the mere fact that a defendant is intoxicated does not make him incapable of acting with purpose. State v. Huertas - 16 - (1990), 51 Ohio St.3d 22, 28. Intoxication, even severe intoxica- tion, can co-exist with purpose. State v. Hicks, supra, at 74. Even if we assume for purposes of this assignment of error that the jury may reasonably have concluded that defendant was intoxicated, the jury could not reasonably have doubted that defendant acted with purpose. Accord State v. Hicks, supra, at 75. He left his apartment wearing glasses and an ear set used for shooting, fixed a laser scope onto John Bryant's chest, uttered a racial epithet, and shot Bryant in the chest mortally wounding him. Similarly, the jury could not have reasonably doubted that defendant purposefully killed Sgt. Glivar in order to elude capture and arrest for shooting Bryant. His statements to Lt. Kaiser and Chief Salerno immediately thereafter show that he knew he was in jeopardy for this act and that he probably would not leave his apartment alive. Defendant's overall conduct reveals clearheadedness in light of his purposeful actions of threatening but not harming Rhone, calling Chief Salerno and describing to him what he had just done, conversing with the officers about his ex-wife, surreptitiously leaving the apartment to fire upon the officers then fleeing back into the apartment, aiming and shooting Sgt. Glivar's shotgun at a predesignated target then evaluating his aim, shooting at Officer Mackey while still eluding capture, and tenaciously fighting the officers even after being wounded. There is no evidence to "negate a conscious awareness of the circumstances and events that trans- - 17 - pired." See State v. Wolons, at 69. Finally, even though Chief Salerno and Det. Arko thought that defendant was intoxicated, "the record overall indicates that he was not so intoxicated that he was not fully aware of the events taking place around him." See State v. Wolons, supra, at 69. Moreover, defendant's own expert Sonya McKee, M.D., con- firmed that notwithstanding her conclusion that defendant was intoxicated, he could nonetheless act purposely at this time and form a specific intent to kill. (Tr. 1201, 1222-1223). Dr. McKee also noted that defendant had "rational reasons" for his actions and he expressed a clear choice to kill some people and not others. (Tr. 1225). In short, we find that the evidence of intoxication did not negate specific intent and therefore the trial court did not abuse its discretion in denying an instruction on voluntary intoxication. The first assignment of error is overruled. II. Defendant's second assignment of error states: THE TRIAL COURT ERRED BY PROHIBITING AN EXPERT WITNESS FROM ANSWERING A HYPOTHETICAL QUESTION IN VIOLATION OF THE APPELLANT'S RIGHT TO COMPULSORY PROCESS. Within this assignment of error, defendant complains that the trial court violated the constitutional provisions guaranteeing compulsory process and acted contrary to the provisions of Evid. R. 702, 703, and 705 when it refused to allow Dr. McKee to answer a - 18 - hypothetical question which addressed the issue of specific intent to kill. In State v. Cooey (1989), 46 Ohio St.3d 20, 26, the Supreme Court held that a criminal defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that due to intoxication or any other reason, he lacked the mental capacity to form the specific mental state required for a parti- cular crime. The Court stated: [A defendant] may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that *** [he] lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime. State v. Wilcox (1982), 70 Ohio St.2d 182, 24 O.O. 3d 283, 436 N.E. 2d 523, paragraph two of the syllabus. The Wilcox rule is based on a mistrust of the ability of psychiatry to accurately `fine-tune' degrees of capacity among offenders who are sane - i.e., who have the minimal capacity to act voluntarily. Wilcox, supra, at 190-194, 24 O.O. 3d at 289-291, 436 N.E. 2d at 528- 530. It is irrelevant, in our view, whether the asserted incapacity to form mens rea is caused by a mental dis- order, by intoxication, or (as Cooey contends here) by a combination of the two. We are offered nothing to convince us that psychiatric `fine-tuning' would be any more accurate where the asserted incapacity is caused by intoxication. As we noted in Wilcox, lay jurors need no expert testimony to determine whether the accused was too intoxicated to be able to intend anything. Wilcox, supra, at 194, 24 O.O. 3d at 291, 436 N.E. 2d at 530. To allow psychiatric testimony on specific intent would bring into Ohio law, under another guise, the diminished capacity defense we rejected in Wilcox. Id. See, also, State v. Slagle (1992), 65 Ohio St. 3d 597, 607. The second assignment of error is overruled. - 19 - III. Defendant's third assignment of error states: THE TRIAL COURT ERRED BY FAILING TO MERGE CAPITAL SPECIFICATION II, III, AND IV WHICH RESULTED IN JURY CONSIDERATION OF DUPLICATIVE SPECIFICATIONS. In this assignment of error, defendant maintains that the presence of three separate mass murder specifications in Counts One and Two caused the jury to consider duplicative specifications within the penalty phase. It is well-established that where specifications arise from the same act or indivisible course of conduct, and are committed with the same animus, they are duplicative and must be merged for purposes of sentencing. State v. Jenkins (1984), 15 Ohio St.3d 164, paragraph five of the syllabus. Should merging take place upon appellate review of the death sentence, resentencing is not automatically required where the reviewing court independently determines that the remaining aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt and the jury's consideration of duplicative aggravating circumstances in the penalty phase did not affect the verdict. Id. Accord State v. Garner (1995), 74 Ohio St.3d 49, 54-55 (application of the Jenkins test during independent review does not violate the right to trial by jury). See, also, State v. Combs (1991), 62 Ohio St.3d 278, 286. In State v. Garner, supra, the Supreme Court set forth a corollary to its earlier pronouncements in State v. Jenkins, supra, - 20 - regarding merger, and stated: We believe it is a necessary corollary to Jenkins that, where a jury in the guilt phase of a capital trial has found the defendant guilty of duplicative specifica- tions, a trial court should instruct the jury in the penalty phase that those duplicative specifications must be considered merged for purposes of weighing the aggra- vating circumstances against the mitigating factors. Id., at 53. As to the specific question presented herein, we further note that R.C. 2929.04(A)(5) provides for mass murder specifications and states as follows: Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender. (Emphasis added). Thus, by definition, this specification contemplates the purposeful killing or attempt to kill two or more persons within a single course of conduct. Moreover, this specification has been applied where there were long time lapses between killings. See State v. Silva (February 11, 1991), Stark App. No. CA-8047, unreported, and citations listed therein. Thus, it is clear that where a jury has returned guilty verdicts upon two or more mass murder specifications within a single count of aggravated murder and each specification arises from a single course of conduct, the specifications are duplicative and must be merged for sentencing. We therefore hold that a trial court may not, in its penalty phase instructions, instruct the jury regarding a separate mass murder aggravating circumstance for each victim within a course of conduct - 21 - involving the purposeful killing or attempted killing of two or more persons. Rather, the court may present the jury with no more than one mass murder aggravating circumstance, which includes all of the victims within the course of conduct as determined in the guilt proceeding, for each applicable count of aggravated murder. Applying the foregoing with regard to the death penalties returned in this matter, it is clear that the trial court erred in instructing the jury regarding separate mass murder aggravating circumstances for each victim within the course of conduct as determined in the guilt proceeding, for each count of aggravated murder, and in failing to instruct on a single mass murder aggravating circumstance which included all of the victims within the course of conduct for each count of aggravated murder. We find beyond a reasonable doubt, however, that the trial court's failure to instruct the jury that duplicative aggravating circumstances should be considered merged did not influence the jury to recommend death rather than life imprisonment. That is, merger of the duplicative mass murder aggravating circumstances for each separate shooting victim into a single mass murder aggravating circumstance which lists each shooting victim within a single course of conduct, would not change the nature of the evidence which the jury was statutorily required to consider in making its recommendation as to a possible sentence of death. Moreover, the jury was not expressly instructed that its finding of guilt on multiple specifications should be deemed to increase the weight it accorded the aggravating - 22 - circumstances. Cf. State v. Penix (1987), 32 Ohio St.3d 369, 372. We find that the weight of the aggravating circumstances was not inflated as the result of the trial court's failure to instruct the jury that it was to consider the duplicative specifications merged. Consistent with the analysis of Garner, supra, although the trial court erred in not merging the specifications, the weight of the aggravating circumstances was not inflated, rendering the weighing process invalid. Finally, Supreme Court precedent clearly demonstrates that our application of the Jenkins test for merger and the Garner corollary to that test does not abridge defendant's right to trial by jury, see Garner, supra. Likewise, no constitutional violation occurs where errors found to have occurred in the penalty phase of a capital trial are deemed cured upon independent review by the court of appeals as required by R.C. 2929.05. Id., at 55; accord State v. Combs, supra; see,also, State v. Fox (1994), 69 Ohio St.3d 183, 191-192. Defendant's third assignment of error is overruled. IV. Defendant's fourth assignment of error states: THE REFUSAL OF THE TRIAL COURT TO ALLOW THE JURY TO RECOMMEND CONSECUTIVE SENTENCES FOR EACH COUNT OF AGGRAVATED MURDER VIOLATED APPELLANT'S RIGHTS UNDER THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Defendant next complains that the trial court erred in denying - 23 - his request to instruct the jury during its charge, and again in response to a question during deliberations, that it could recom- mend that defendant receive consecutive life sentences for his convictions for aggravated murder. This contention was rejected in State v. Grant (1993), 67 Ohio St.3d 465, 482. The Court stated: In proposition of law twenty-seven, Grant claims that the trial court erred by refusing to instruct the jury that the court could impose consecutive life sentences. However, `the subject of disposition is a matter for the court and not for the jury and, thus, need not be considered by the jury.' State v. Rogers (1985), 17 Ohio St.3d 174, 182, 17 OBR 414, 421, 478 N.E.2d 984, 992. In this case the jury was properly instructed as to their possible sentencing recommendations: death, life with possibility of parole after twenty years, and life with possibility of parole after thirty years. The jury does not have an option of recommending whether life sentences shall run consecutively or concurrently. By application of the foregoing, defendant's fourth assignment of error is without merit. V. Defendant's fifth assignment of error states: THE APPELLANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO DELIBERATIONS BY A JURY THAT WAS FULLY COGNIZANT OF ITS RESPONSIBILITIES AND DUTIES WHEN THE TRIAL COURT INSTRUCTED THAT ITS DEATH VERDICT WAS ONLY A RECOMMENDATION BUT A LIFE VERDICT WAS BINDING ON THE COURT. Defendant next complains that the trial court's instruction that a death verdict is only a recommendation diminished the jury's sense of responsibility in sentencing defendant to death, as prohibited by Caldwell v. Mississippi (1985), 472 U.S. 320, 328- - 24 - 329. Subsequent to its decision in Caldwell, the United States Supreme Court held that "[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." See Dugger v. Adams (1989), 489 U.S. 401, 407. Thus, where the challenged instruction accurately states Ohio law, a Caldwell challenge will be rejected. See State v. Hicks (1989), 43 Ohio St.3d 72, 80. See, also, State v. Durr (1991), 58 Ohio St.3d 86, 93. In this instance, the jury was instructed that a verdict for the sentence of death is a recommendation which was not binding upon the trial court and that the final decision was placed upon the court, but a verdict for a life sentence is binding upon the court. (Tr. 1569). The Supreme Court has repeatedly stated its preference that no comment be made regarding ultimate responsibility for determining the appropriateness of a death sentence, but it has also repeatedly held that such instruction accurately states Ohio law and does not constitute reversible error. See, e.g., State v. Loza (1994), 71 Ohio St.3d 61, 74. Accordingly, this assignment of error is overruled. VI. Defendant's sixth assignment of error states: THE TRIAL COURT'S INACCURATE PENALTY PHASE INSTRUCTIONS MISGUIDED THE JURY AS TO THEIR DUTIES UNDER THE LAW - 25 - RENDERING THE RESULTANT SENTENCE UNRELIABLE AND VIOLATIVE OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 9, 10 AND 16, ARTICLE I, OF THE OHIO CONSTITUTION. Within this assignment of error, defendant complains that the trial court's instructions during the penalty phase regarding reasonable doubt, consideration of lesser penalties, and the omission of sympathy were prejudicially erroneous. As to the court's instruction on reasonable doubt, defendant complains that the trial court erred in instructing the jury in relevant part as follows: "Reasonable doubt is present when after you have carefully considered all the evidence, you cannot say you are convinced of the truth of the charge." (Tr. 1562-1563). Defendant concedes that this language is part of the statutory definition of reasonable doubt set forth in R.C. 2901.05(D). He asserts, however, that the court's use of the term "truth of the charge" during the penalty phase instructions pre- cluded any meaningful weighing of the aggravating and mitigating factors since the jury had already found defendant guilty of the "charge" during the penalty phase. This contention was found to be "totally devoid of merit" in State v. Spirko (1991), 59 Ohio St.3d 1, 17. The court stated: *** defendant ignores the requirement that the jury must weigh the aggravating circumstances against the miti- gating factor(s), and the trial court so stated at least three times during its instruction at the penalty phase. See, also, State v. Davis (June 8, 1995), Cuyahoga App. No 64270, unreported, ("the aggravating circumstance is the `charge' that the - 26 - jury in comparing the state's evidence must be convinced beyond a reasonable doubt outweighs whatever mitigating circumstance appellant presented[;] *** there is no error in the instruction.") As to the court's instruction regarding consideration of lesser penalties, defendant complains that the court erroneously gave an "acquittal first" instruction which improperly required the jury to reject the death penalty before considering the life sentence options. This section of the charge provided: *** you must determine beyond a reasonable doubt whether the aggravating circumstances, which the defendant, Harry D. Mitts, Jr., was found guilty of committing in the separate counts, are sufficient to outweigh the mitigating factors you find are present in this case. When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which Harry D. Mitts, Jr., has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court. I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on the defendant Harry D. Mitts, Jr. * * * I will now read to you the verdict forms which will apply in this case. No inference is to be drawn from the order in which I read these forms to you. (Emphasis added.) (Tr. 1568-1570). Under State v. Brooks (1996), 75 Ohio St.3d 148, 159-160, the supreme court held that a penalty phase instruction that "you are - 27 - now required to determine unanimously that the death penalty is inappropriate before you can consider a life option" was plainly incorrect and contrary to R.C. 2929.03(D)(2), which contains no limiting language as to when a jury may contemplate a life sentence. R.C. 2929.03(D)(2) provides as follows: If the jury unanimously finds by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment. Applying the foregoing, we hold that the trial court's instruction did not inform the jury that it was required to determine that the death penalty was inappropriate before it could consider life imprisonment. Rather, the court's charge tracked R.C. 2929.03(D)(2) and informed the jury that life imprisonment could be considered if the jury failed to find that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. This conclusion is bolstered, moreover, by the jury ques- tion submitted to the court prior to the issuance of the death verdicts, which inquired as to whether terms of life imprisonment would be served consecutively or concurrently. (Tr. 1579). As to the court's instruction that the jury "must not be influenced by any consideration of sympathy or prejudice" (Tr. - 28 - 1572), we note that in State v. Landrum (1990), 53 Ohio St.3d 107, 123, the supreme court approved such an instruction and noted that it is intended to ensure that sentencing is based on reviewable guidelines, not a juror's personal bias or sympathy. See, also, State v. Jenkins, supra, paragraph three of the syllabus. In any event, the court did subsequently instruct the jury that mitigating factors "are factors that while not justifying or excusing the offense or offenses, may in fairness and mercy be considered by you as extenuating or reducing the degree of the defendant's responsibility or punishment." (Tr. 1565). This charge constitutes adequate instruction concerning the extension of mercy to a capital defendant. State v. Garner, supra, at 57. The sixth assignment of error is overruled. VII. Defendant's seventh assignment of error states: WHERE TRIAL COUNSEL FAILS TO OBJECT TO ERRONEOUS JURY INSTRUCTIONS AND IMPROPER COMMENTS OF THE PROSECUTOR, THE DEFENDANT IS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE THERE IS A REASONABLE PROBABILITY THAT THE DEATH SENTENCE WOULD NOT HAVE BEEN RECOMMENDED HAD THE OBJECTIONS BEEN MADE. Defendant next complains that he was denied effective assis- tance of counsel because trial counsel did not object to the 2 court's instructions regarding aggravating circumstances, reason- 2 Defendant advances within this assignment of error the additional claim that the trial court erroneously defined the term "aggravating circumstances." He does not provide argument to support this claim, however, and we do not review it herein - 29 - able doubt, consideration of the life penalties, the recommendation of the jury in reaching a death verdict, and the court's submission of duplicative specifications to the jury. As we have previously determined there is no underlying error, we will not credit defendant's claim that counsel was ineffective. Accord State v. Henderson (1989), 39 Ohio St.3d 24, 33. The seventh assignment of error is overruled. VIII. Defendant's eighth assignment of error states: THE TRIAL COURT ERRED BY REFUSING TO PROVIDE A MITIGATING INSTRUCTION AS TO THE APPELLANT'S INTOXICATION AT THE TIME OF THE OFFENSE IN CONTRAVENTION OF THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTI- TUTION. Defendant next complains that the trial court erred in refusing to specifically instruct the jury that it could consider as mitigating the fact that appellant was intoxicated at the time of the offenses. With regard to the substantive value of such evidence, we note that in State v. D'Ambrosio (1995), 75 Ohio St.3d 141, 145, the Supreme Court held that "in certain circumstances, voluntary intoxication can constitute a mitigating factor, albeit a weak one." Accord State v. Lawson (1992), 64 Ohio St.3d 336, 352 ("Another potential mitigating factor is appellant's heavy drug and alcohol consumption prior to the murder. Any impact, however, is pursuant to App.R. 16. - 30 - weakened by the fact that appellant had no difficulty driving to the murder scene.") But, see, State v. Slagle (1992), 65 Ohio St.3d 597, 614 (alcoholism, addiction, and voluntary intoxication are not mitigating factors). Further, in State v. Sowell (1988), 39 Ohio St.3d 322, 336- 337, the supreme court concluded that a claim of intoxication is entitled to little or no mitigating weight where the evidence established that defendant possessed the capacity to form a specific intent and to appreciate the wrongfulness of his conduct at the time of the crime. With regard to the procedure by which such evidence is to be considered, the Sowell Court has stated: R.C. 2929.04(B)(7), which directs the sentencer to consider "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death ***," is relevant in that appellant claims to have been intoxicated at the time of the offense. Id. In State v. Landrum (1990), 53 Ohio St.3d 107, 122, the court noted that a trial court is permitted to give a general instruction under this provision and is not required under the law to separat- ely instruct upon each factor which is framed by defense counsel under this provision. The Landrum Court stated: While the trial judge might have tailored the instructions more to the evidence, such an approach is not required. The trial judge did not misstate the law. Nor did he exclude consideration of possible mitigating factors as in Lockett v. Ohio (1978), 438 U.S. 586. Hence, there was no error. Applying the foregoing, we conclude that the trial court did not err in this instance. Defendant offered evidence of intoxica- - 31 - tion for mitigation purposes, and the trial court was not required to give a separate instruction on voluntary intoxication. The eighth assignment of error is without merit. IX. Defendant's ninth assignment of error states: THE AGGRAVATING FACTORS PRESENT IN THE APPELLANT'S CASE DO NOT OUTWEIGH THE MITIGATING FACTORS PURSUANT TO R.C. 2929.03, THEREBY RENDERING THE DEATH SENTENCE VIOLATIVE OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 9 AND 16 OF THE OHIO CONSTITUTION. Within this assignment of error, defendant challenges the jury's determination that the aggravating circumstances which defendant was found guilty of committing outweigh the mitigating factors beyond a reasonable doubt. He maintains that the duplicative specifications should have been merged and that he presented evidence which significantly mitigated his culpability. The standard of review used by this court to assess the validity of a claim that the verdict is against the manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175, as follows: The court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the con- viction. - 32 - We further note that the weight to be given the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph two of the syllabus. Likewise in capital cases, the weight to be given mitigation is best left to the trial court. State v. Lott (1990), 51 Ohio St.3d 160, 171; State v. Lundgren (1995), 73 Ohio St.3d 474, 493. In this instance, the evidence presented in connection with defendant's conviction for the aggravated murder of John Bryant demonstrated that the aggravating circumstances which defendant was convicted of committing are that the offense was part of a course of conduct in which defendant (1) purposely killed Sgt. Glivar; (2) purposely attempted to kill Lt. Kaiser; and (3) purposely attempted to kill Officer Mackey. The evidence presented in connection with defendant's conviction for the aggravated murder of Sgt. Glivar demonstrated that the offense was part of a course of conduct in which defendant (1) purposely killed Bryant; (2) purposely killed a uniformed police officer; (3) purposely attempted to kill Lt. Kaiser; and (3) purposely attempted to kill Officer Mackey. For mitigation, defendant presented evidence that he had no prior criminal history, had served in the Coast Guard, had a history of steady employment, and was a devoted father and friend. He also presented some evidence that the offenses were related to his consumption of alcohol on the date of the offense, and defen- - 33 - dant expressed remorse for his actions. In State v. Steffen (1987), 37 Ohio St.3d 111, paragraph two of the syllabus, however, the supreme court stated: While R.C. 2929.04(B)(7) evidences the legislature's intent that a defendant in a capital case be given wide latitude to introduce any evidence that the defendant considers to be mitigating, this does not mean that the court is necessarily required to accept as mitigating everything offered by the defendant and admitted. The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight. That is, evidence of the offender's history, background and character which the jury considered, but did not find to be mitigating, need be given little or no weight against the aggravating circumstances. State v. Stumpf (1987), 32 Ohio St.3d 95, 101. In Stumpf, the finder of fact considered proffered mitigating evidence that the defendant "was a follower and not a leader, that he was generally a hard worker, that he had never had behavioral problems, that he had no significant criminal record, that he had a strong family background and that he was emotionally stable" but found that with the exception of his relatively young age, and lack of a significant criminal background, "he had not established any mitigating factors by a preponderance of the evidence." The supreme court concluded that the finder of fact did not err in its weighing of the aggravating circumstances against the mitigating factors. By application of the foregoing, we are unable to conclude that the jury lost its way and created a manifest miscarriage of justice in this instance. - 34 - The ninth assignment of error is overruled. X. Defendant's tenth assignment of error states: THE TRIAL COURT IMPROPERLY WEIGHED THE RELEVANT SENTENCING FACTORS IN VIOLATION OF R.C. 2929.03(F). Within this assignment of error, defendant maintains that the trial court's separate opinion in which it found the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt does not comply with the requirements of R.C. 2929.03(F). In support of this claim, defendant asserts that the court did not weigh each aggravated murder conviction separately, did not list the aggravating circumstances, failed to consider defendant's lack of a criminal record as mitigating, contrary to R.C. 2929.04(B)(5), and failed to give any weight to other evidence offered in the mitigation phase. R.C. 2929.03(F) provides in relevant part as follows: The court *** when it imposes sentence of death, shall state in a separate opinion its specific findings as to the existence of any of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, the existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating cir- cumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. See, also, State v. Maurer (1984), 15 Ohio St.3d 239, paragraph three of the syllabus. In State v. Maurer, supra, the supreme court noted the importance of the trial court's duty under this provision: - 35 - The failure of the trial court to comply with this aspect of R.C.2929.03(F) disrupts the review procedures enacted by the General Assembly by depriving the defendant and subsequent reviewing courts of the trial court's perceptions as to the weight accorded all relevant circumstances. In a closer case, those perceptions could make a difference in the manner in which a defendant pursues his appeal and in which a reviewing court makes its determination. Id., at 247. The supreme court has also held, however, that even where a trial court fails to meet the requirements of the statute, subsequent independent review renders such error harmless. State v. Scott (1986), 26 Ohio St.3d 92, 105. In addition, it is well settled that the trial court is not required to accept as mitigating everything offered by the defen- dant and admitted. See, e.g., State v. Murphy (1992), 65 Ohio St.3d 554, 577. In this instance, the trial court's opinion did not separately address each aggravated murder conviction and did not list the aggravating circumstances and the reasons why the aggravating circumstances outweighed the mitigating factors. It therefore did not meet the full requirements of R.C. 2929.03(F). Nonetheless, we do not believe this is a "close case" as alluded to in State v. Maurer, supra. Moreover, our independent review undertaken pur- suant to R.C. 2929.05, infra, affirms the trial court's conclu- sions. We are therefore unable to find the trial court's omissions to be prejudicially erroneous. Defendant's tenth assignment of error is overruled. - 36 - XI. Defendant's eleventh assignment of error states: IMPOSITION OF THE DEATH SENTENCE VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 2, 9, 10 AND 16, ARTICLE I, OF THE OHIO CONSTITUTION. Within this assignment of error, defendant raises a total of twenty-one challenges to the state's death penalty provisions. We shall address each in turn. Defendant first asserts that the death penalty deprives capitally charged defendants of life without due process of law since there is no indication that it is the least restrictive means of furthering a compelling state interest. This claim was rejected in State v. Jenkins, supra, at 167-168 and State v. Apanovich (1989), 33 Ohio St.3d 19, 26. See, also, State v. Mills (1992), 62 Ohio St.3d 357, 372. Defendant next asserts that capital punishment constitutes cruel and unusual punishment. This claim was also rejected in Jenkins, supra, at 168-169. See, also, State v. Coleman (1989), 45 Ohio St.3d 298, 308. Defendant additionally contends that the death penalty pro- cedures permit arbitrary charging decisions which may result in discriminatory, arbitrary, or freakish imposition of the death penalty. This argument was rejected in State v. Jenkins, supra, 169-170, and State v. Coleman, supra. Defendant also claims that the bifurcated system which has the same jury determine culpability then recommend punishment violates - 37 - an accused's rights to effective assistance of counsel. Defendant maintains that if defense counsel does not prevail in the guilt phase, his credibility is diminished in the penalty proceedings before the same jury. In a related argument, defendant asserts that a bifurcated procedure which relies upon a single jury deprives an accused of his right to a fair trial before an impartial jury. Defendant also asserts that the initial death qualifying procedure creates a negative view that the defense will not prevail in the guilt phase. These arguments were rejected in State v. Mapes (1985), 19 Ohio St.3d 108, 117, and State v. Zuern (1987), 32 Ohio St.3d 56, 63. Defendant next claims that language within the death penalty statutory scheme that "the aggravating circumstances *** outweigh the mitigating factors" unconstitutionally invites reliance upon the burden of proof by a mere preponderance of the evidence. This claim was likewise rejected in State v. Jenkins, supra. Defendant also asserts that the scheme is devoid of specific, detailed guidance and objective standards for weighing the aggra- vating circumstances against the mitigating factors. This claim was rejected in State v. Jenkins, supra; and State v. Buell (1986), 22 Ohio St.3d 124, 139-140. Defendant additionally maintains that the death penalty scheme unconstitutionally impairs an accused's right to a jury trial and to be free from compulsory self-incrimination because the fear of receiving the death penalty forces guilty pleas and/or the sub- - 38 - mission of mitigating factors. These claims were rejected in State v. Buell, at 137-138; and State v. Seiber (1990), 56 Ohio St.3d 4, 15-16. Within his next argument, defendant asserts that the statutory scheme does not contain an adequate check against the random, dis- proportionate, or arbitrary imposition of the death penalty since it does not require juries to identify the mitigating factors relied upon when a life sentence is recommended. In a related argument, defendant asserts that the omission of this information precludes meaningful appellate and supreme court review. In State v. Jenkins, supra, the supreme court noted that proportionality review is not constitutionally mandated. The court further stated, as follows: We first observe that appellant's argument that proportionality review is constitutionally required is without merit. In Pulley v. Harris (1984), _____ U.S. _____, 79 L.Ed. 2d 29, the Supreme Court held that neither Gregg, Proffitt nor Jurek established propor- tionality review as a constitutional requirement. Id. at 39. In reaching this conclusion, the court reasoned as follows: Needless to say, that some schemes providing propor- tionality review are constitutional does not mean that such review is indispensable. We take statutes as we find them. To endorse the statute as a whole is not to say that anything different is unacceptable. As was said in Gregg, '[w]e do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis.' 428 U.S., at 195 ***. Examination of our 1976 cases makes clear that they do not establish proportionality review as a constitutional requirement. Thus, although viewed as commendable, the decision - 39 - in Pulley demonstrates that proportionality review is not constitutionally required in every case. Other factors which minimize the risk of arbitrary and capricious sentencing include bifurcated proceedings, the limited number of chargeable capital crimes, the requirement that at least one aggravating circumstance be found to exist and the consideration of a broad range of mitigating circumstances. In conjunction with prior United States Supreme Court decisions, the General Assembly incorpor- ated the aforementioned factors in Ohio's death penalty statutes, as well as providing proportionality review -a meaningful function which reduces the arbitrary and capricious imposition of death sentences. The question remains whether the absence of a requirement that juries specify the mitigating factors which they found to exist, and why these factors outweigh aggravating circumstances, creates a fatal defect in the statutes. We hold that it does not. The fundamental purpose behind proportionality review is to ensure that sentencing authorities do not retreat to the pre-Furman era when sentences were imposed arbitrarily, capriciously and indiscriminately. To achieve this result, state courts traditionally compare the overall course of conduct for which a capital crime has been charged with similar courses of conduct and the penalties inflicted in comparable cases. See Gregg at 204-206, and Proffitt at 259-260. The system currently in place in Ohio enables this court to obtain a vast quantity of information with which to effectuate proportionality review, beginning with data pertinent to all capital indictments and concluding with the sentence imposed on the defendant, whether or not a plea is entered, the indictment dismissed or a verdict is imposed by the sentencing authority. See R.C. 2929.021, supra, at fn. 13. Although appellant would have this court require juries returning a life sentence to specify which mitigating factors were found to exist and why they outweigh aggravating circumstances, we conclude that such information is not an indispensable ingredient in assisting us to determine whether the imposition of a death sentence is disproportionate to sentences imposed for similarly proscribed courses of conduct. Id., at 176-177. Thus, the supreme court has clearly rejected these arguments, and we therefore likewise reject them herein. - 40 - In his next argument, defendant complains that the further review provisions of R.C. 2929.05 are illusory since they contem- plate comparison only to other capital cases. This claim was rejected in State v. Davis (1992), 63 Ohio St.3d 44, 50 ("[T]he proportionality review mandated by R.C. 2929.05(A) does not require a review of those cases in which a sentence of life imprisonment is imposed.") Defendant next maintains that since the death penalty scheme does not require findings regarding arbitrariness, passion, or prejudice, it lacks a fundamental safeguard against the capricious imposition of the death penalty. In State v. Buell, supra, at 144 and State v. Cook (1992), 65 Ohio St.3d 516, 529, the supreme court held that Ohio's mandatory review procedures of R.C. 2929.05 serve as a safeguard against arbitrary or capricious imposition of the death penalty. Accordingly, we find this claim to lack merit. Defendant additionally argues that the death penalty statute impermissibly mandates imposition of the death penalty in the absence of mitigation or when the aggravating circumstances out- weigh the mitigating factors. This claim was rejected in State v. Jenkins, supra; and State v. Williams (1995), 73 Ohio St.3d 152, 173. In his next argument, defendant contends that the state death penalty scheme does not provide a sufficiently individualized sentence since it does not provide for a jury instruction regarding mercy. As we noted previously, the supreme court has held that an - 41 - instruction to exclude bias, sympathy or prejudice is intended to ensure that sentencing is based on reviewable guidelines, not a juror's personal bias or sympathy. State v. Landrum, supra. See, also, State v. Jenkins, supra, paragraph three of the syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414. In any event, the court did subsequently instruct the jury that mitigating factors "are factors that while not justifying or excusing the offense or offenses, may in fairness and mercy be considered by you as extenuating or reducing the degree of the defendant's responsi- bility or punishment." (Tr. 1565). This charge constitutes adequate instruction concerning the extension of mercy to a capital defendant. State v. Garner, supra, at 57. In a related argument, defendant asserts that the scheme is flawed since it does not require any determination that death is the only appropriate punishment. This claim was rejected in State v. Buell, supra, at 136-137; and State v. Williams, supra, 172- 173. Defendant additionally maintains that the death penalty provisions unconstitutionally authorize the imposition of the death penalty where there is no demonstration that the accused acted with a conscious desire to kill, premeditation, or deliberation. This claim was considered and rejected in State v. Jenkins, supra, at 170-171; and State v. Scott (1986), 26 Ohio St.3d 92, 109. Defendant also claims that since the death penalty is pro- foundly different from all other penalties, the state must be - 42 - required to prove beyond all doubt that the aggravating cir- cumstances outweigh the mitigating factors. In a related argument, defendant asserts that the statutory definition of "reasonable doubt" is insufficient to meet the requirement set forth in In re Winship (1970), 397 U.S. 358, 364, that the fact finder must be convinced of guilt "with utmost certainty." In State v. Jenkins, supra, paragraph eight of the syllabus, the supreme court held, "[t]he standard of proof in a capital prosecution is proof beyond a reasonable doubt as defined in R.C. 2901.05 and not proof beyond all doubt." The court explained: *** We are cognizant of the difficulty inherent in any attempt to define this abstract legal concept. The United State Supreme Court recognized this problem in Miles v. United States (1880), 103 U.S. 304, at page 312: 'Attempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury.' Scrutiny of the definition provided by the General Assembly in R.C. 2901.05 reveals a substantial similarity to the explanation of 'reasonable doubt' upheld in Holland v. United States (1954), 348 U.S. 121. In Holland, supra, at page 140, the United States Supreme Court found, concerning 'reasonable doubt,' that 'the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some. ***' The General Assembly has attempted, in R.C. 2901.05 and the definition of 'reasonable doubt' therein, to pro- vide not only a degree of consistency as to the meaning of the term throughout the courts of this state, but also to have a definition comprehensible to all the members of the jury and not merely those trained in the subtle nuance of legalese. Considering the inherent difficulty in defining this abstract concept of reasonable doubt, the similarity of the definition under consideration with that in Holland, supra, and the beneficial aspects of the legislative mandated definition, we find that the General Assembly has pronounced a rational definition of 'reason- able doubt' which, when taken as a whole correctly con- veyed the concept of 'reasonable doubt' to the jury. - 43 - (Footnote omitted). Consequently, the standard of proof in a capital prosecution is proof beyond a reasonable doubt as defined in R.C. 2901.05 and not proof beyond all doubt. Id. at 211, citing State v. Nabozny (1978), 54 Ohio St.2d 195, 202- 203. See, also State v. Lundgren (1995), 73 Ohio St.3d 474, 493. Accordingly, these claims lack merit. Defendant next asserts that the felony murder aggravating circumstance contained in R.C. 2929.04(A)(7) merely duplicates the felony murder offense found in R.C. 2903.01(B) and does not genuinely narrow the class of persons eligible for the death penalty. Defendant additionally maintains that this specification unconstitutionally subjects those who commit felony murder to a harsher penalty than that imposed upon those who commit pre- meditated murder. The supreme court rejected these claims in State v. Jenkins, supra, at 177-178, and State v. Henderson, supra, at 28-29. In any event, defendant was neither charged with nor convicted of this aggravating circumstance, so these claims are ultimately moot herein. Finally, defendant asserts that the statutory scheme is void for failing to require the state to prove the absence of any mitigating factor and that shifting the burden to defendant to establish the existence of a mitigating factor beyond a reasonable doubt prevents the jury from considering relevant mitigating evidence. This claim was rejected in State v. Jenkins, supra, at 171-172. The court noted that pursuant to R.C. 2929.03(D)(1), the - 44 - defendant has the burden of going forward with evidence of any factors in mitigation, and the prosecution has the burden of proving, beyond a reasonable doubt, that the aggravating circum- stances that the defendant was found guilty of committing outweigh the mitigating factors. The court then explained: "*** the state carried the burden of proving by proof beyond a reasonable doubt that the aggravating circum- stances appellant was found guilty of committing out- weighed the mitigating factors. Since the trial court correctly interpreted the standards governing the burden of proving mitigating factors and by what degree, we are unable to find merit in this assignment of error. Accord State v. Lawrence (1989), 44 Ohio St.3d 24, 27. Likewise, we reject this claim herein. We next undertake our independent review in accordance with R.C. 2929.05. With regard to the first count of aggravated murder, the evidence established that defendant killed Sgt. Glivar, a peace officer, as part of a course of conduct involving the killing of Bryant and the attempted killing of Lt. Kaiser and Officer Mackey. With regard to the second count of aggravated murder, the evidence established that defendant killed Bryant as part of a course of conduct involving the purposeful killing of Sgt. Glivar and the attempted killing of Lt. Kaiser and Officer Mackey. As to the mitigating evidence offered in relation to both counts, there was no evidence of any mitigating factors relating to the commission of the crime, as the victims neither induced nor facilitated the offenses. R.C. 2929.04(B)(1). The defendant did not claim that he committed the offenses as the result of duress or - 45 - coercion. R.C. 2929.04(B)(2). There was no evidence that defendant, due to a mental disease or defect, was unable to conform his conduct to the requirements of the law. R.C. 2929.04(B)(3). Similarly, defendant was 42 years old at the time of the offenses and was therefore not a youthful offender. R.C. 2929.04(B)(4). He was the principal offender. R.C. 2929.04(B)(6). Defendant did present uncontroverted evidence that he had no significant history of criminal convictions. R.C. 2929.04(B)(5). Nonetheless, little weight should be accorded this factor since his "entry into the criminal ranks was terrifyingly brutal." See State v. Grant, supra, at 486. With regard to other factors, defendant presented some evi- dence that the offenses had some association to intoxication due to voluntary alcohol consumption. Such claim is entitled to little or no mitigating weight as the evidence established that defendant possessed the capacity to form a specific intent and to appreciate the wrongfulness of his conduct at the time of the crime. State v. Sowell, supra, at 322. Also within this factor, defendant had several good family relationships, a steady work history, had served his country, and expressed deep remorse for the killings. These factors are entitled to some weight. Nonetheless, it is our considered view with regard to both aggravated murder counts, that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and the death penalty is an appropriate punishment for each offense. - 46 - We are also charged with determining whether the death penalty is disproportionate to the penalty imposed in similar cases. We conclude that it is proportionate herein when compared to other cases of murder as a course of conduct involving the purposeful killing of two or more persons. See State v. Frazier (1991), 61 Ohio St.3d 247; State v. Combs (1991), 62 Ohio St.3d 278; State v. Montgomery (1991), 61 Ohio St.3d 410. Accordingly, the judgment of the trial court is affirmed. - 47 - 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. MCMONAGLE, J., AND PATTON, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .