COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68338 STATE OF OHIO : : : PLAINTIFF-APPELLEE : SUPPLEMENTAL : JOURNAL ENTRY v. : AND : APPELLATE REVIEW TYSON DIXON : OF : DEATH SENTENCE : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-307939. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Edward M. Walsh, Esq. Anthony J. Kellon, Esq. Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David L. Doughten, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 Robert M. Ingersoll, Esq. Assistant Public Defender Cuyahoga County 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- MATIA, P.J.: Pursuant to the requirements set forth in R.C. 2929.05(A), this court certifies that it has reviewed the judgment, the sentence of death and all of the evidence contained in the record and enters the following independent findings: 1. The evidence supports the findings of the trial jury and the trial judge that appellant was guilty of two counts of aggravated murder and the aggravating circumstances charged in the indictment beyond a reasonable doubt; 2. During the penalty phase of the capital proceeding, reversible error occurred in the exclusion of relevant mitigation evidence by the trial court; 3. Under the circumstances, a determination as to the weight of the aggravating circumstances compared to mitigating factors, the proportionality of the sentence and whether the sentencing court properly weighed the aggravating circumstances and mitigating factors as required by R.C. 2929.05 is unnecessary in light of this court's order remanding the case for re-sentencing. NAHRA, J. and KARPINSKI, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68338 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : TYSON DIXON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-307939. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Edward M. Walsh, Esq. Anthony J. Kellon, Esq. Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David L. Doughten, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 Robert M. Ingersoll, Esq. Assistant Public Defender Cuyahoga County 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Tyson Dixon, defendant-appellant, appeals from his conviction and death sentence on four counts of aggravated murder with capital specifications and on one count of aggravated robbery. Defendant-appellant assigns seventeen errors for this court's review. For the following reasons, the judgment of the trial court is affirmed in part, reversed in part and remanded. I. THE FACTS Tyson Dixon's, defendant-appellant's, conviction and death sentence stems from the February 24, 1994 shooting deaths of Maurice LeFlore and Joyce Woolley. The double homicide occurred in Joyce Woolley's Ford Explorer as it was traveling in the area of East 144th Street and Kingsford Avenue in Cleveland, Ohio at approximately 3:45 p.m. At the time of the incident, Joyce Woolley was thirty-two years old, married with two small children and employed as a manager with Goodwill Industries. Maurice LeFlore was twenty years of age and a known drug dealer. LeFlore resided next to the Woolley family in an apartment building located in Shaker Heights, Ohio. As a result of the double homicide of Joyce Woolley and Maurice LeFlore, Tyson Dixon, defendant-appellant, and Romell Wilkes, a co-defendant, were charged with four counts of aggravated murder in violation of R.C. 2903.01. Each count contained a mass murder specification, a felony murder -3- specification and a firearm specification. In addition, both Dixon and Wilkes were charged with two counts of aggravated robbery, in violation of R.C. 2911.01, with a firearm specification. Each defendant entered a plea of not guilty to the capital indictment. Prior to the trial of Tyson Dixon, defendant-appellant, the co-defendant, Romell Wilkes, withdrew his formerly entered plea of not guilty and entered a plea of guilty to two counts of aggravated murder with specifications. A three-judge panel sentenced Wilkes to life imprisonment without the possibility of parole for twenty years on each count. In exchange for his plea of guilty and life sentence, Romell Wilkes agreed to testify against Tyson Dixon, defendant-appellant. Tyson Dixon's, defendant-appellant's, trial began on October 28, 1994. The first witness for the prosecution, Carmen Ellington, testified in pertinent part that she had been Maurice LeFlore's girlfriend at the time of the killings. Ms. Ellington testified further that approximately two weeks prior to the shootings, LeFlore had been paged by Tyson Dixon, defendant- appellant. Ms. Ellington and LeFlore drove to East 144th Street in search of Dixon but were unable to locate him. On the day of the murders, LeFlore was supposed to pick up Ms. Ellington from school at Kent State University. When LeFlore failed to arrive, Ms. Ellington called her brother and learned of the killing. Ms. Ellington testified that upon her arrival home, she pressed *69 -4- on her phone in order to retrieve the last number called to her apartment. The last number called was that of Tyson Dixon. The second witness for the prosecution, George Harris, testified that shortly after arriving home from work at the post office, on February 24, 1994, he heard a loud crashing noise. Mr. Harris stated that he looked out of a window and observed a green Ford Explorer rammed into a broken electric light pole. Harris saw the rear driver's side door open and a male with a cast on his leg exit the vehicle. This individual opened the driver's door and pulled the driver out of the vehicle. Harris then saw a second male exit the vehicle from the rear passenger side door. Tyson Dixon, defendant-appellant, had a cast on his right leg on February 24, 1994. On cross-examination, Harris stated that he did not hear shots fired prior to the accident. The third witness for the prosecution, Sahir Hasan, a Cleveland Police Department Homicide Detective, testified that he prepared a diagram of the crime scene at East 144th and Kingsford. Detective Hasan stated that the majority of the diagram was prepared with information obtained from eyewitness interviews. Detective Hasan's diagram, which was not drawn to scale, was eventually admitted into evidence as State's Exhibit 1. Detective Hasan was again called to testify as a witness for the prosecution at a later stage of the trial. The fourth and fifth witnesses for the prosecution were thirteen-year-old Douglas Gray and his twelve-year-old cousin, David Stanley. Gray testified that he was playing with his -5- cousin when he saw a green Ford Explorer go down the street and hit a utility pole. He then observed two men emerge from the rear seat of the vehicle and saw one of the men, who had a white cast on his leg, pull the driver from the front seat and pat down the driver's coat. Gray testified that, as the two men were leaving the scene, one of the men yelled for an ambulance to be called. Stanley's testimony was similar to that of Gray's with two notable exceptions: (1) Stanley did not see the man with the cast on his leg pat down the driver's coat; and (2) Stanley identified the man with the cast as the individual who called for an ambulance as he was leaving the scene. The sixth witness for the prosecution, Patrolman Zenar Delk of the Cleveland Police Department, testified that he was, along with his partner Dalton Preston, the first police officer to arrive at the scene. Patrolman Delk testified further that he observed two bodies: one male laying on the ground next to the Ford Explorer and one female slumped over in the front passenger seat, completely covered by blankets. Patrolman Delk also observed a large amount of blood in the vehicle as well as a porcelain insulator which had apparently fallen from the utility pole into the vehicle upon impact. Patrolman Delk then began securing the crime scene and interviewing witnesses in an effort to determine the identity of the victims. The seventh witness for the prosecution, Lieutenant Edward Lohn of the Cleveland Police Department, testified that he was the street supervisor responsible for initially securing the -6- crime scene so that all possible evidence would be preserved and a thorough investigation conducted. Lieutenant Lohn's description of the crime scene did not differ in any significant way from Patrolman Delk's testimony. The eighth witness for the prosecution, Kevin Curry, a seventeen-year-old male who resided in the neighborhood, testified that he had been sitting in a parked car drinking beer with two other teenagers named Jahmil Gray and Shawndell Dais when a green Ford Explorer drove by their parked automobile and ran into a utility pole. Mr. Curry testified further that he observed someone in the rear seat of the Explorer reach up into the front seat and steer the vehicle before it impacted with the utility pole. Curry stated that after the collision, he ran to his home, which was located on the street, and called 9-1-1. Curry, who was acquainted with Tyson Dixon from the neighborhood, could not or possibly would not identify anyone in the Ford Explorer. The ninth witness for the prosecution, Detective Michael O'Malley of the Cleveland Police Department's Homicide Unit, testified regarding his investigation of the double homicide. O'Malley described the crime scene as it looked upon his arrival and described finding four .380 caliber shell casings in and around the subject vehicle. The tenth witness for the prosecution, Gregory Woolley, husband of victim Joyce Woolley, testified that on the day of the murders Joyce had agreed to drive their neighbor Maurice LeFlore -7- to an appointment at an unknown location in her new Ford Explorer. Mr. Woolley returned home from work at approximately 6:00 p.m., turned on the evening news and saw an Explorer resembling Joyce's with bodies on the street near it. Mr. Woolley became alarmed and phoned 9-1-1, and the Cuyahoga County Morgue where he then went to identify the body of his wife. Mr. Woolley testified further regarding the effect that his wife's murder had on himself and his family. The eleventh and twelfth witnesses for the prosecution were Shawndell Dais and Jamil Gray, the two teenagers who had witnessed the Ford Explorer hit the utility pole along with Kevin Curry. Their testimony did not differ from that of Kevin Curry in any significant respect. The thirteenth witness for the prosecution, Dale Ferguson, a police officer in the Scientific Investigation Unit of the Cleveland Police Department, testified that he was one of the officers who processed the crime scene and photographed the vehicle as well as the bodies of the victims. Ferguson stated that he observed one .380 caliber shell casing on the ground outside of the vehicle and three more .380 caliber shell casings within the vehicle. These casings were submitted to the Scientific Unit for testing. At this stage of the proceedings, the photographs taken by Officer Ferguson were submitted into evidence. The fourteenth witness for the prosecution was Carlos Santoscay, Jr., a pathologist and deputy county coroner with the -8- Cuyahoga County Coroner's Office. Dr. Santoscay testified that he performed the autopsies on Maurice LeFlore and Joyce Woolley. Maurice LeFlore sustained three gunshot wounds to the head. The first pellet entered LeFlore's skull behind the right ear. It was recovered from the left side of LeFlore's skull. The second pellet entered the base of LeFlore's skull where it lodged and was recovered. The third pellet entered the back of LeFlore's head and was recovered from the left side of LeFlore's neck. In Dr. Santoscay's opinion two of the wounds were inflicted with a weapon fired not more than six inches from LeFlore's head and a third wound was indicative of a weapon held against the head when fired. Dr. Santoscay testified further that there was cocaine metabolized in LeFlore's urine. Joyce Woolley also sustained three gunshot wounds to the head. Two pellets were recovered from Woolley's skull and a third pellet exited her neck and lodged in her left thigh where it was recovered. Dr. Santoscay found no trace of drugs or alcohol in Joyce Woolley's system. At this stage of the proceeding, the prosecution called Romell Wilkes, co-defendant with Tyson Dixon, as their fifteenth witness. Wilkes, who had previously entered into a plea agreement whereby he agreed to testify truthfully against Tyson Dixon in exchange for an agreed sentence of life imprisonment with no possibility of parole for twenty years on a plea of guilty to two counts of aggravated murder, refused to testify. After numerous attempts to persuade Wilkes to testify, the trial -9- court declared Wilkes unavailable to testify pursuant to the rules of evidence and he was excused. The sixteenth witness for the prosecution, Robert Minor, a detective with the Cleveland Police Department's Scientific Investigation Unit, testified that he was responsible for processing Joyce Woolley's Ford Explorer after it was towed to the police garage. Minor testified that the processing procedure involved photographing the interior and exterior of the vehicle and anything inside the vehicle which could be pertinent to the case such as guns, knives, weapons, shell casings, blood, fingerprints and other trace evidence. Minor also dusted the vehicle for fingerprints but failed to discover any identifiable fingerprints. The seventeenth and eighteenth witnesses for the prosecution were David Woods and Gregory Byers, each of whom was acquainted with Maurice LeFlore, Tyson Dixon and Romell Wilkes. Both Mr. Woods and Mr. Byers went to the crime scene shortly after the shootings took place and identified the body of Maurice LeFlore. Woods testified further that he was aware that Maurice LeFlore was a drug dealer. The nineteenth witness for the prosecution was Sharon Rosenberg, an employee of the Cuyahoga County Coroner's Office in the trace evidence department. Ms. Rosenberg testified that she examined both victims and their personal effects for trace evidence. Ms. Rosenberg observed gunpowder residue in the hair of both victims at the location of the entrance wounds as well as gunshot residue on the hands of Joyce Woolley. In Ms. -10- Rosenberg's opinion, the gunshot residue on Mrs. Woolley's hands was indicative of a person trying to shield themselves from the muzzle of a gun. The twentieth witness for the prosecution, Jessie Goodwin, Tyson Dixon's uncle, testified that in 1992 he purchased a .380 caliber handgun for approximately $200. Mr. Goodwin testified further that he lost track of the handgun about one year after purchasing it. According to Mr. Goodwin, his nephew Tyson Dixon, who lived in a house located behind Goodwin's, had free access to the basement area where the gun had been stored. The weapon in question was the murder weapon. At this point in the proceedings, Derrick James was called to testify as a court witness pursuant to Evid.R. 614. Mr. James was called as a court's witness for the reason that he had given statements regarding the shootings that substantially differed from statements made to the Cleveland Police Department shortly after the crimes occurred. In Mr. James' statement to the police dated February 28, 1994, four days after the shootings, he stated that he observed Tyson Dixon and Romell Wilkes get into the back seat of Joyce Woolley's Ford Explorer prior to the shootings on February 24, 1994. At that time, Mr. James made no mention of any other person. At trial, Mr. James testified that, prior to the shootings, Tyson Dixon was inside the James' residence using the telephone. James testified that Dixon then left the home and, at the same time, Maurice LeFlore and Joyce Woolley drove up in the Woolley's -11- Ford Explorer. James stated that, as the Ford Explorer pulled up, Romell Wilkes and a third man who James did not know walked up and Dixon, Wilkes and the unidentified male got into the back seat of the vehicle which then drove down the street. When questioned as to why he did not tell the police about the unidentified third man on February 28, 1994, Mr. James simply replied that no one asked him about it at the time. Mr. James testified further that at 4:00 p.m., he was picked up by Lester Cummings, a man James referred to as Tyson Dixon's stepfather. In the vehicle were Romell Wilkes, Tyson Dixon and a man identified only as Terrence. Mr. James observed blood on Romell Wilkes and a cut on his forehead. Mr. James also saw blood on Tyson Dixon's cast. Lester Cummings dropped off Tyson Dixon, Romell Wilkes, Terrence and Mr. James at Mr. James' residence and left the area. Mr. James assisted both Tyson Dixon and Romell Wilkes wash the blood off themselves and provided them with a change of clothes. Mr. James testified further that he heard Tyson Dixon and Romell Wilkes say "We got that nigger," but could not identify which one made the statement. Later that day, Romell Wilkes and Mr. James put the murder weapon in a GAP bag, drove to East 160th Street and Miles and threw the GAP bag containing the gun into a storm sewer. The twenty-first witness for the prosecution, Kenneth Jarrett, testified that he was friends with Tyson Dixon and acquainted with Romell Wilkes for a number of years. Mr. Jarrett testified that at 8:00 p.m. on February 24, 1994, he saw Tyson Dixon, Romell Wilkes and Derrick James standing in the yard in front of -12- Mr. James' home. Apparently, Mr. Jarrett had planned to get a motel room for the night for himself and his girlfriend but needed a ride to the motel from Lester Cummings, Tyson Dixon's stepfather. A short time later, Mr. Jarrett, Tyson Dixon and Lester Cummings drove to Howard Johnson's on Northfield Road. However, when Mr. Jarrett's girlfriend failed to appear, Jarrett allowed Tyson Dixon and his girlfriend to use the room he had originally reserved for himself. The twenty-second witness for the prosecution, Sean Walker, a front desk clerk at the Howard Johnson's Motel in question, testified that Kenneth Jarrett did, in fact, rent a room at the motel on the night of February 24, 1994. Mr. Walker testified further that a number of phone calls were made from that room. The twenty-third witness for the prosecution, Detective Gregory Kunz of the Cleveland Police Department, testified that while he was interviewing Rosa Dixon, defendant-appellant's mother, she received a telephone call from Tyson Dixon. Detective Kunz spoke with Tyson Dixon at that time and told him that the Cleveland Police had information that he had been involved in the double homicide of Maurice LeFlore and Joyce Woolley. Detective Kunz then asked Tyson Dixon to return to his mother's house so that the police could question him. After several more telephone calls, Tyson Dixon agreed to return home where he was taken into custody by the police. After Detective Kunz explained Tyson Dixon's constitutional rights, Dixon made a statement in which he maintained that he had -13- called Maurice LeFlore in order to purchase a quantity of illegal drugs. While waiting for LeFlore to arrive, Dixon encountered Romell Wilkes and a third man identified only by the street name of "Tone." Both Wilkes and Tone allegedly stated that they wanted to purchase drugs as well. Soon after, the victims drove up and Dixon alleged that he, Wilkes and Tone entered the back seat of the Ford Explorer. After traveling a short distance, Dixon maintained that Tone produced a weapon, shot both LeFlore and Joyce Woolley in the head, took LeFlore's drugs and jumped out of the moving Explorer before it hit the utility pole. Detective Kunz testified further that, four days after the murders, he went to the home of Derrick James and searched James' bedroom resulting in the discovery of a live .380 caliber round of ammunition in James' closet. Mr. James then took Detective Kunz to East 160th Street and Miles Avenue where James identified a storm sewer drain from which the murder weapon was eventually recovered and traced to Tyson Dixon's uncle, Jesse Goodwin. Detective Kunz, who spent several hours with Mr. James that day, stated that James never mentioned a third person entering the Ford Explorer on the day of the murders. Detective Kunz also personally examined the Ford Explorer and discovered a fifth .380 caliber shell casing wedged against the seat frame. The twenty-fourth witness for the prosecution was Lester Cummings, the fiance of Rosa Dixon, Tyson Dixon's mother. Mr. Cummings testified that he observed both Tyson Dixon and Romell Wilkes after the shootings had occurred. Mr. Cummings stated -14- that Tyson Dixon appeared nervous and Wilkes appeared to be hurt with blood covering his clothes. Mr. Cummings stated further that upon seeing Tyson Dixon and Romell Wilkes, he had a feeling that they were somehow involved in the shootings. The twenty-fifth witness for the prosecution was Detective Daniel Rowley, a firearms identification expert for the Cleveland Police Department. Detective Rowley testified that the pellets recovered from the bodies of the victims and the five shell casings found in and around the Ford Explorer were all fired from the same weapon, the .380 caliber handgun recovered from the sewer by the Cleveland Police Department and traced to Tyson Dixon's uncle, Jesse Goodwin. The twenty-sixth witness for the prosecution, Richard Hamski, a court reporter for the Cuyahoga County Court of Common Pleas, testified regarding the guilty plea of Romell Wilkes on September 13, 1994. Mr. Hamski read into the record the following portion of the transcript: A. First Judge Calabrese said, "Mr. Wilkes, do you want to make any statement at this time? Stand up, Mr. Wilkes." Mr. Wilkes then said, "Your Honor, on February 24, you know what I'm saying, I am sorry, you know, what went down, but me, myself, I do not know, you know, he had a gun and he was going to kill Maurice or the young lady. But I do know that he was going to rob them. But I didn't know he was going to kill them." And [J]udge Calabrese said, "When you say he, who are you referring to?" Then Mr. Wilkes said, "Tyson." -15- * * * (Tr. 2042). The prosecution then recalled Detective Sahir Hasan of the Cleveland Police Department to testify on behalf of the state as its final witness. Detective Hasan testified that he arrested Romell Wilkes on February 26, 1994 after Wilkes had agreed to turn himself in. At that time, Wilkes gave a signed statement to the Detective implicating Tyson Dixon in the shootings. Since Wilkes had been declared unavailable to testify by the trial court due to his refusal to be sworn and refusal to testify, the trial court permitted Detective Hasan to read Wilkes' statement to the jury over numerous defense objections. The following narrative was then read to the jury by Detective Hasan. A. Okay. Page 1, page 2 of 2. Of 2 is crossed out and initial RW. That's his initial. It was slashed out because we went to three pages. "On the 24th I got up and went out of the house and went up to the Arab store on East 144th and seen one of my dudes name[d] Rico. Went into the Arab store and got me a gin and juice and me and Rico was drinking it. Terrence was coming out of Big D's house. He walked towards me, and I handed him the bottle of gin and juice. And I asked him where is T, where is T at. And he said he was over at Big D's house earlier. Went over Big D's house. I was approaching Big D's house by the driveway. Lester and Tyson pulled up and Tyson wanted me to come on up into the Big D's house. Me and Big T, TJ, Tyson, were in the house and we went in the den and few were talking. Tyson said, I'm about to hit the nigger Mo up. TJ left out of the house. Me, Big D and Tyson -16- were just talking for a minute, just tripping out. Then the phone rang. Tyson Told Mo come through, I'm in the yellow. That's Big D's house. They were at on top of that" -- Romell Wilkes made a correction. "Tyson said he was about to hit Mo up, meaning big money." Then he puts his initial RW. He said, "About 15 minutes later Tyson went outside and me and Big D were standing inside. About a minute later Tyson came to the door and knocked and said come on. We got into a Ford Explorer. I got in on the girl's side and Tyson got in on Mo's driver's side, the back side. As we were pulling out of the driveway to go down the street, the girl was flipping the tape. Mo asked Tyson where's the loot at. Before he asked him that, I asked Mo, you are doing it, like this baby? The girl was flipping the tape driving on down the street. I said, we are about like towards Tyson's house, almost right at Tyson's house. Then all I seen was Tyson's hand go up. And I seen him had a pistol in his hand. I seen him shoot Maurice LeFlore twice in the head. And he might have shot the old girl twice in the head. I think only one shot. The car was, the truck was going about, we were going a little nice speed. I don't know how fast we were going, going in" -- there's a typographical error. I was trying to type as he was talking. Because he was talking fast on some occasions I had to ask him to slow down. "I don't know how fast we was going, but the car hit the pole and I went up and hit my head. I then went up and fell back. I said I was like pausing for like, you know, like if you see something that shocked you. I said man, I'm gone. I opened the back door and got out. Tyson, he was already out of the truck before me. When I came around the back of the Explorer, I paused and seen Shawndell and some mookie and I think Calvin. I know I seen some kids and the kids run down the street. I know I seen Shawndell. Tyson -17- opened the door and pulled Mo out of the car and I just started, just started searching Mo. And I started going across the street. After I went -- after I went across the street, Tyson was hopping across behind. He dropped the gun inside the Explorer. I didn't see him drop it. I know he said that he had to go and get the gun. We walked on my street all the way down. "First we were going over my mother's house, but then we kept going down the street. We went over Bid D's house. Big D wasn't there so Terrence came up and was like, somebody in the truck and took a pole down there. Tyson was like, Terrence, where is D? Where is D at? He said he is on the block. Lester was coming down the street. Tyson jumped in the passenger seat like I was standing there for a minute. Come on, Ro, come on, Ro, get in. And then Terrence got in. "At the stop sign at East 144th Big D was standing on the corner. We made a left and went towards East 146th towards my grandmother's street, picked up Big D and rode to East 147th, made a left towards East 146th and stopped at the corner of East 144th and turned down the opposite way of East 144th back towards the way to Bid D's house. Went to Big D's house and chilled for 20 minutes until Less came back. "At this time Kenny was in the car. Less came back this time. Tyson got in on the passenger side on the back and I got in on the driver's side in the back. I said drop me off at my house, but before we went to my house we went to East 135th to get some reefer. My (sic) and Tyson finished the weed and he dropped me off over my grandmother's house. I just went in the house." * * * (Tr. 2059-2063). -18- Detective Hasan testified further that, after taking Romell Wilkes' statement, he asked Wilkes a number of questions regarding the incident. The pertinent questions were: Q. Did you shoot either Maurice or the girl inside the Explorer? A. No. Q. Who shot Maurice and the girl inside the Explorer on February 24, 1994? A. Tyson Dixon. Q. Did Tyson take anything from the girl or Maurice inside the Explorer? A. I didn't see him take anything from Maurice, but after we got to Big D's house, I saw Tyson with a big bundle of crack. Detective Hasan's report was entered into evidence as State's Exhibit 102. At this point the prosecution rested its case and offered its exhibits into evidence. The defense then moved for acquittal pursuant to Crim.R. 29. The trial court overruled the motion. The defense then called Tyson Dixon, defendant-appellant, as its only witness. Mr. Dixon testified that he had been selling drugs since he was approximately sixteen years of age in the Bartlett area of Cleveland, Ohio. Dixon testified that, on the day of the shootings, he went to Derrick James' house at approximately 12:30 p.m. so that he could use James' telephone to finalize a pre-arranged drug deal with one of his suppliers, Maurice LeFlore. Dixon testified further that as Maurice LeFlore and Joyce Woolley arrived in Woolley's Ford Explorer, Romell Wilkes and a friend of Wilkes that Dixon knew only as Tone -19- approached and expressed the desire to purchase illegal drugs. All three individuals entered the Ford Explorer with LeFlore and Woolley. As the five of them drove down the street, Maurice LeFlore removed drugs from his pants in order to complete the purchase. At this point, Tone allegedly produced a handgun and shot LeFlore and Joyce Woolley. Dixon maintained that Tone then took the drugs from LeFlore and jumped out of the speeding vehicle. Romell Wilkes -20- then attempted to steer the vehicle from the rear seat until it struck the utility pole. Dixon testified further that after the vehicle struck the pole, he pulled LeFlore's body from the vehicle, asked a bystander to telephone for an ambulance and fled the scene along with Romell Wilkes. Dixon maintained at trial that the weapon, which had allegedly been dropped in the vehicle by Tone, was removed by Romell Wilkes as the pair fled. Both Dixon and Wilkes ended up at the home of Derrick James after the shootings. The defense then rested its case-in-chief. Closing arguments followed and the jury was charged. The jury then began deliberations. During the jury deliberations, the jury sent out a written communication to the trial court signed by the jury foreman which stated: We are at this time in a standstill. We have attempted to vote on the counts presented to us: however, one jury member refuses to vote. She voted yesterday not guilty. Today not guilty. We took another vote. She refused to discuss her position, told us to do whatever we want. She will sign anything. We are requesting instructions from the judge on how to proceed at this juncture. She just wants to go home. There was a discussion that she feels in her heart he is not guilty but offers no explanation. The trial court then gave a supplemental jury instruction which included a restatement of portions of the original charge regarding the proper attitude for deliberations as well as the -21- deadlocked jury charge commonly referred to as the Howard charge. The jury then retired and deliberations continued. On November 10, 1994, the jury found Tyson Dixon, defendant- appellant, guilty of counts one through five of the indictment and the specifications. The jury found Tyson Dixon not guilty of aggravated robbery as charged in count six of the indictment. On November 16, 1994, the penalty phase hearing began. After opening statements, the defense presented eight witnesses who testified regarding Tyson Dixon's past history and character. All eight witnesses testified that Dixon had a somewhat troubled childhood but that he was always a good person and a loving, caring and devoted son to his mother. Tyson Dixon, defendant-appellant, then made an unsworn statement to the jury in which he maintained that he did not shoot Maurice LeFlore and Joyce Woolley. Dixon stated further that he was not a cold-hearted person and always respected other people. The defense attempted to introduce into evidence the testimony of Charles See, a cultural mitigation expert, who was going to testify regarding the unique cultural pressures on young black males in African-American communities. The trial court would not allow Mr. See's testimony since he did not possess the requisite educational background to be considered an expert in the field. Similarly, the defense attempted to introduce into evidence the testimony of Lisa Roth, a licensed social worker specializing -22- in juvenile crisis intervention. The trial court would not allow Ms. Roth's testimony on the basis of relevancy. The last defense witness was James Eisenberg, a forensic psychologist, who testified regarding his evaluation of Tyson Dixon. Dr. Eisenberg testified that Dixon, who has an I.Q. of 75, was very open and honest throughout the interview process about his past activities as well his family history. In Dr. Eisenberg's opinion, Dixon could possibly respond to the authoritarian regime provided by the penal system in a positive manner. (Tr. 2830). At this point the defense rested and closing arguments took place. Prior to commencement of the penalty phase, the state withdrew the R.C. 2929.04(A)(7) specification due to an erroneous jury verdict form relating to that specification. The jury did not consider that specification. On November 19, 1994, the jury recommended a thirty year sentence on counts one and three. A death sentence was recommended on counts two and four. On November 23, 1994, the trial court accepted the jury's recommendation. The court then merged the alternative theories of aggravated murder and sentenced Tyson Dixon to thirty years to life for count one, plus three years for the gun specification, and death for count three. The trial court also sentenced Dixon to a term of ten to twenty- five years for the aggravated robbery conviction pursuant to count five. This sentence is being served consecutively to the aggravated murder sentences. On December 29, 1994, Tyson -23- Dixon, defendant-appellant, filed a timely notice of appeal from his convictions in the trial court. This appeal now follows. -24- II. FIRST ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, first assignment of error states: TYSON DIXON'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: MANIFEST WEIGHT. Defendant-appellant argues, through his first assignment of error, that his convictions were against the manifest weight of the evidence. Specifically, defendant-appellant maintains that his convictions were largely based upon the unsworn, hearsay statements of co-defendant Romell Wilkes which were admitted into evidence upon Wilkes' refusal to testify in this case. It is defendant-appellant's position that a careful examination of his own testimony and Wilkes' statement clearly demonstrates the inconsistencies and inaccuracies inherent in Wilkes' statement. Defendant-appellant maintains further that since his convictions rely heavily upon Wilkes' unreliable, unsworn and contradicted statements, those convictions are clearly against the manifest weight of the evidence and should be reversed. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next -25- consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight of the evidence must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; -26- 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. DEFENDANT-APPELLANT'S CONVICTIONS WERE NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, the jury found defendant-appellant guilty of four counts of aggravated murder with capital specifications and one count of aggravated robbery. The jury considered testimony from the following: six witnesses to the immediate car accident that resulted from the shooting; five investigating Cleveland police officers; one member of the Cleveland Police Department's Scientific Investigations Unit; the police officer who was responsible for fingerprinting the Ford Explorer; a firearms expert in the Cleveland Police Department; a deputy coroner with the Cuyahoga County Coroner's Office; a trace evidence expert with the Cuyahoga County Coroner's Office; Maurice LeFlore's girlfriend; Joyce Woolley's husband; two acquaintances of defendant-appellant, Romell Wilkes and Maurice LeFlore; defendant-appellant's uncle; a friend of defendant- -27- appellant who allowed him to use a hotel room after the shootings; the hotel clerk; defendant-appellant's mother's fiance; the court reporter who transcribed co-defendant Romell Wilkes' plea of guilty in which he implicated defendant- appellant; and another friend of defendant-appellant and Romell Wilkes who assisted both in cleaning the victim's blood off their clothing and helped dispose of the murder weapon. The jury also viewed numerous exhibits including: the coroner's reports; photographs of the victims, their clothing and the crime scene; the murder weapon and the spent shell casings, the ballistics tests; and the statement made by co-defendant Wilkes to police after the shootings in which Wilkes identified defendant- appellant as the lone triggerman. A review of all evidence introduced by the state demonstrates that the state's case against defendant-appellant was, in fact, substantial. Contrary to defendant-appellant's assertions, the state's case did not completely rely upon Romell Wilkes' unsworn statements. The state presented direct evidence placing defendant-appellant in the Explorer at the time of the killings, a fact defendant-appellant admits, as well as evidence linking defendant-appellant to the murder weapon. Defendant-appellant testified in an attempt to support his version of the incident, i.e., that a man known only by the street name of "Tone" committed the murders and stole the drugs, as did Derrick James. However, Mr. James' testimony was clearly impeached through Mr. James' prior statements made to police soon -28- after the murders in which he failed to identify the alleged third man named "Tone." Mr. James's credibility was also challenged through his own admission that he assisted both defendants in cleaning blood from their clothes and helped dispose of the murder weapon, a gun purchased by defendant- appellant's uncle. Based upon the evidence presented, the jury could properly find that defendant-appellant's largely unsupported version of the events was not a true account. To the contrary, the jury was presented with substantial evidence to find that defendant- appellant purposely and with prior calculation and design caused the deaths of Maurice LeFlore and Joyce Woolley. Thus, the factors set forth in State v. Mattison, supra, are met in this case. The state presented reliable, credible evidence of defendant- appellant's guilt, and this court declines to substitute its judgment concerning the credibility of the witnesses and the appropriate weight to be given to their testimony. Accordingly, this court cannot now say that the jury "lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, supra. The verdicts of guilty of four counts of aggravated murder with capital specifications and one count of aggravated robbery were not against the manifest weight of the evidence. State v. Awkal (April 13, 1993), Cuyahoga App. No. 66291, unreported. -29- Defendant-appellant's first assignment of error is not well taken. -30- III. SECOND ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, second assignment of error states: THE ADMISSION OF ROMELL WILKES' UNSWORN, HEARSAY STATEMENTS DEPRIVED TYSON DIXON OF HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE THE PRINCIPLE WITNESS AGAINST HIM. A. THE ISSUE RAISED: CONFRONTATION CLAUSE. Defendant-appellant argues, through his second assignment of error, that the trial court erred in allowing into evidence the unsworn, hearsay statements of co-defendant Romell Wilkes which identified defendant-appellant as the triggerman in the shootings. Specifically, defendant-appellant maintains that Wilkes' statement should have been excluded because it violated the Confrontation Clause of the United States Constitution and did not possess the required "indicia of reliability" necessary to be admitted as a hearsay exception under Evid.R. 804(B)(3). Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR THE CONFRONTATION CLAUSE. As defendant-appellant correctly states, the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution both guarantee all criminal defendants the right to confront the witnesses against them. The Confrontation Clause provides a constitutional safeguard which ensures that a criminal defendant will not be convicted of a crime based upon the charges of unseen, unknown and unchallengeable witnesses. -31- Lee v. Illinois (1986), 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 525; State v. Gilliam (1994), 70 Ohio St.3d 17, 19. In State v. Gilliam, supra, the Ohio Supreme Court dealt with an extremely similar factual scenario to the case at bar in which a co-defendant who had participated in the robbery of a beverage store had made a taped confession in which he implicated himself and two additional co-defendants. However, when the declarant was called to testify as a witness in the trial of one of the co- defendants, he exercised his Fifth Amendment privilege against self-incrimination and refused to testify. Consequently, the prosecution offered the co-defendant's taped statement into evidence which the trial court admitted over the objection of defense counsel. The Supreme Court, in affirming the judgment of the trial court and Lorain County Court of Appeals, found that the trial court had properly determined that the declarant was unavailable for purposes of the unavailability requirement of Evid.R. 804. The Supreme Court then stated: Pursuant to Evid.R. 804(B)(3), a statement may be admitted as an exception to the hearsay rule if the declarant is unavailable and it is a "statement against interest." To qualify as a statement against interest, it must be shown that the statement "tended to subject" the declarant to criminal liability so that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. United States v. Garcia (C.A. 7, 1990), 897 F.2d 1413, 1420. -32- Id. at 20. The Supreme Court further found that Evid.R. 804(B)(3) requires that corroborating circumstances clearly indicate the trustworthiness of the statement prior to the time the statement against interest becomes admissible. The determination as to whether sufficient corroborating circumstances exist generally rests within the sound discretion of the trial court. See, also, State v. Landrum (1990), 53 Ohio St.3d 107, 113. C. THE TRIAL COURT DID NOT ERR IN ADMITTING ROMELL WILKES' STATEMENT INTO EVIDENCE. In the case sub judice, a review of the record demonstrates that the trial court did not err in allowing Romell Wilkes' statement implicating himself and defendant-appellant in the shootings into evidence. Initially, this court finds that Wilkes' was clearly unavailable to testify pursuant to Evid.R. 804 due to his outright refusal to testify as previously agreed during Wilkes' plea negotiations. The question then becomes whether Wilkes' previous statement qualified as a statement against interest under Evid.R. 804(B)(3) and whether the statement was supported by particular guarantees of trustworthiness so as to be admissible. Evid.R. 804(B)(3) provides: (3) Statement against interest. A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A -33- statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Clearly, a review of Wilkes' statement reveals that it tended to subject Wilkes to criminal liability. Wilkes admitted that he entered the Ford Explorer with defendant-appellant as part of a plan to rob Maurice LeFlore of cocaine and money. Wilkes further admitted that he was in the back seat of the Explorer when Maurice LeFlore and Joyce Woolley were shot. Wilkes stated further that, after the killings, both he and defendant-appellant fled the scene, washed blood from their clothes and assisted in the disposal of the murder weapon. This statement exposes Romell Wilkes to criminal liability and therefore qualifies as a statement against interest pursuant to Evid.R. 804(B)(3). In addition, there are sufficient corroborating circumstances to indicate that Wilkes' statement was trustworthy. Wilkes gave a statement to Detective Hasan after Wilkes was taken into custody and Mirandized. Wilkes indicated that he understood his rights and was willing to make a voluntary statement pertaining to the killings. The evidence did not demonstrate that any discussions took place regarding promises or offers of leniency in exchange for Wilkes' statement. Lastly, much of Wilkes' statement was corroborated by other witnesses' testimony. Based on the foregoing, this court finds that the trial court did not abuse its discretion in finding Wilkes' statement was -34- supported by "particularized guarantees of trustworthiness." -35- Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 607-608. Accordingly, defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, third assignment of error states: TYSON DIXON WAS FURTHER DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS- EXAMINE THE PRINCIPLE WITNESS AGAINST HIM, WHEN THE TRIAL COURT LIMITED IMPEACHMENT OF MR. WILKES' HEARSAY STATEMENTS. A. THE ISSUE RAISED: IMPEACHMENT OF ROMELL WILKES' STATEMENT THROUGH HIS RECORD AS A JUVENILE OFFENDER. Defendant-appellant argues, through his third assignment of error, that the trial court should have permitted defense counsel to impeach the hearsay statement of Romell Wilkes by allowing the introduction of Wilkes' prior criminal record as a juvenile offender. It is defendant-appellant's position that Wilkes' prior juvenile record was important in order to determine the extent of the state's influence over Wilkes and its ability to coerce a statement from Wilkes inculpating defendant-appellant in the murders. Defendant-appellant maintains that Wilkes' extensive juvenile record gave Wilkes a strong motivation to cooperate with the police, point the finger of guilt at defendant-appellant and obtain a life sentence for himself, thereby escaping the death penalty. -36- Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR IMPEACHMENT OF A WITNESS THROUGH PRIOR JUVENILE CRIMINAL RECORD. Evid.R. 609(D) provides: (D) Juvenile adjudication. Evidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly. The relevant statute governing the admissibility of juvenile adjudications is R.C. 2151.358(H) which provides: (H) The judgment rendered by the court under this chapter shall not impose any of the civil disabilities ordinarily imposed by conviction of a crime in that the child is not a criminal by reason of the adjudication, nor shall any child be charged or convicted of a crime in any court except as provided by this chapter. The disposition of a child under the judgment rendered or any evidence given in court shall not operate to disqualify a child in any future civil service examination, appointment, or application. Evidence of a judgment rendered and the disposition of a child under the judgment is not admissible to impeach the credibility of the child in any action or proceeding. Otherwise, the disposition of a child under the judgment rendered or any evidence given in court is admissible as evidence for or against the child in any action or proceeding in any court in accordance with the Rules of Evidence and also may be considered by any court as to the matter of sentence or to the granting of probation. In interpreting the effect of R.C. 2151.358, the Ohio Supreme Court held in State v. Cox (1975), 42 Ohio St.2d 200: Although the general assembly may enact legislation to effectuate its policy of protecting the confidentiality of juvenile -37- records, such enactments may not impinge upon the right of a defendant in a criminal case to present all available, relevant and probative evidence which is pertinent to a specific and material aspect of his defense. Id. at paragraph two of the syllabus. This court has previously stated that Evid.R. 609(D) and R.C. 2151.358(H) clearly exclude the use of a juvenile court adjudication about a juvenile's conduct, for purposes of general impeachment of a witness' credibility. State v. White (1982), 6 Ohio App.3d 1, 3. However, they do not necessarily limit the use of such circumstances for other valid purposes such as demonstrating bias by the witness toward a party in the litigation. State v. Lukens (1990), 66 Ohio App.3d 794, 802. A defendant who seeks to cross-examine an adversarial witness with prior juvenile records must "present some plausible showing" as to the proper purpose and use of the juvenile records which would not include an attempt to merely impeach the witnesses' credibility. State v Pirman (1994), 94 Ohio App.3d 203, 210. Similarly, the United States Supreme Court in Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, recognized that a state policy prohibiting the admission of a juvenile record at trial may have to give way to a defendant's Sixth Amendment right of confrontation. See, also, State v. Willman (1991), 77 Ohio App.3d 344. The United States Supreme Court stated: *** the right of confrontation is paramount to the State's policy of protecting a -38- juvenile offender. Whatever temporary embarrassment might result to *** [the witness] or his family by disclosure of his juvenile record -- if the prosecution insisted on using him to make its case -- is outweighed by petitioner's right to probe into influence of possible bias in the testimony of a crucial identification witness. Id. at 319, 94 S. Ct. at 1112, 39 L.Ed.2d at 355. Clearly, the court in Davis made a definite distinction between the attempted use of juvenile records to impeach the general credibility of a witness as opposed to the more specific purpose of showing a witness' potential bias. State v. Cox, supra; State v. Lukens, supra. C. THE TRIAL COURT DID NOT ERR IN REFUSING TO ADMIT EVIDENCE PERTAINING TO ROMELL WILKES' PRIOR CRIMINAL RECORD AS A JUVENILE. In the case sub judice, defendant-appellant's counsel sought to introduce evidence pertaining to Romell Wilkes' prior criminal record as a juvenile offender. Therefore, it was incumbent upon defendant-appellant to present some plausible showing, separate from an attempt to impeach the general credibility of Romell Wilkes, as to why Wilkes' prior involvement with the juvenile system was relevant to defendant-appellant's case. A review of the record fails to demonstrate that Wilkes' juvenile records were sought to be used for any other purpose than attacking Wilkes' general credibility and character. During the proceedings, defense counsel sought to introduce into evidence the testimony of the court reporter who had transcribed an earlier sentencing during which Wilkes had recited -39- his own juvenile record. The trial court questioned defense counsel as to the relevancy of such testimony and defense counsel responded: It is to impeach Mr. Romell Wilkes, your Honor, the witness whom we've been unable to confront and cross-examine. We are endeavoring to offer evidence to this jury to impeach, A) his credibility; and, B) his character for truthfulness and honesty as well as any other areas of impeachment permissible under the rules of evidence. (Tr. 2210-2211). During the same exchange with the trial court, defense counsel stated further: We want both to impeach his credibility: and B) to show that he has a long history of committing violent crimes, to-wit: Robberies in order to obtain drugs ***. (Tr. 2215). Accordingly, this court finds that the trial court did not err when it refused to allow evidence pertaining to Romell Wilkes' juvenile record into evidence pursuant to Evid.R. 609(D) since defendant-appellant failed to "present some plausible showing" that Wilkes' juvenile adjudication was being offered for any other reason than to impeach Wilkes' credibility and character. State v. Pirman, supra. Defendant-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, fourth assignment of error states: -40- THE TRIAL COURT ERRED BY RESTRICTING DEFENSE QUESTIONING OF THE VENIRE AS TO THEIR ABILITY TO CONSIDER RELEVANT MITIGATING FACTORS. -41- A. THE ISSUE RAISED: PROPER SCOPE OF QUESTIONING OF THE VENIRE. Defendant-appellant argues, through his fourth assignment of error, that the trial court improperly restricted defense counsel's questioning during voir dire. Specifically, defendant- appellant maintains that the trial court should have permitted the defense to ask each member of the venire about their ability to consider relevant, specific mitigating factors. It is defendant-appellant's position that the trial court's ruling constituted a violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW FOR VENIRE VOIR DIRE. The scope of voir dire is within the sound discretion of the trial court and it varies depending upon the circumstances of each case. State v. Anderson (1972), 30 Ohio St.2d 66, 73, 59 O.O.2d 85, 89, 282 N.E.2d 568, 572. Therefore any limits placed upon the scope of voir dire must be reasonable. State v. Bridgeman (1977), 51 Ohio App.2d 105, 109-110, 5 O.O.3d 275, 366 N.E.2d 1378. In State v. Bedford (1988), 39 Ohio St.3d 122, 129, the Ohio Supreme Court found that the trial court was within its discretion in limiting questions during voir dire by not allowing defense counsel to inquire of prospective jurors whether they were capable of considering specific mitigating factors. The -42- trial court determined that such questions sought a commitment by the prospective jurors prior to the introduction of evidence and were therefore improper. See State v. Phillips (1995), 74 Ohio St.3d 72, 86. C. THE TRIAL COURT DID NOT ERR IN LIMITING THE SCOPE OF VOIR DIRE. In the present case, a review of the record demonstrates that the trial court did not abuse its discretion by limiting specific inquiries into relevant mitigating factors. As in State v. Bedford, supra, defense counsel was attempting to obtain a reaction from the prospective jurors regarding specific mitigating factors before evidence of the proposed mitigating factors was even set forth at trial. Defendant-appellant correctly maintains that the United States Supreme Court case of Morgan v. Illinois (1992), 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492, 502, prohibits the trial court from restricting proper jury questioning about a juror's ability to consider relevant mitigating factors. However, Morgan does not stand for the proposition that defense counsel be permitted to improperly survey prospective jurors on specific mitigating factors which are going to be introduced at a later stage of the proceedings. Accordingly, the trial court properly limited the scope of voir dire to whether the prospective jurors could properly follow the law. Defendant-appellant's fourth assignment of error is not well taken. -43- -44- VI. FIFTH ASSIGNME Tyson Dixon's, defendant-appellant's, fifth assignment of error states: TYSON DIXON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY, WHEN THE TRIAL COURT PERMITTED THE JURY TO CONTINUE DELIBERATIONS AND RETURN A VERDICT AFTER RECEIVING INFORMATION THAT A LONE JUROR VOTING FOR ACQUITTAL WOULD CHANGE HER VOTE TO GUILTY SIMPLY TO END HER ORDEAL. A. THE ISSUE RAISED: JURY DELIBERATIONS. During the guilt phase jury deliberations, the trial court received the following communication from the jury: We are at this time in a stand still. We have attempted to vote on the counts presented to us; however one jury member refuses to vote. She voted yesterday not guilty. Today not guilty. We took another note. She refused to discuss her position, told us to do whatever we want. She will sign anything. We are requesting instructions from the judge on how to proceed at this juncture. She just wants to go home. There is discussion that she feels in her heart that he is not guilty but offers no explanation. (Tr. 2505-2506). The trial court then gave a supplemental jury instruction which included a restatement of portions of the original charge regarding guidelines for deliberations as well as the deadlocked jury charge set forth in the case of State v. Howard (1989), 42 Ohio St.3d 18. This deadlocked jury charge is commonly referred to as the Howard charge. -45- Defense counsel agreed that it was appropriate for the trial court to restate portions of the original jury charge; however, defense counsel objected to the supplemental Howard charge as being premature. On appeal, defendant-appellant maintains that the Howard charge was inappropriate since the jury communication clearly demonstrated that the will of the majority had already overcome the lone hold-out juror who indicated that "She will sign anything," and "she just wants to go home." It is defendant- appellant's position that, once the jury communication was received, the trial court was left with no alternative but to declare a mistrial and order a new trial be held before a jury that had not been contaminated by a majority rule mentality. Defendant-appellant's fifth assignment of error is not well taken. B. STANDARD OF REVIEW FOR DEADLOCKED JURY. In State v. Howard, supra, the Ohio Supreme Court set forth the supplemental jury instruction to be given to deadlocked juries: "The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same -46- manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all jurors." Id. at paragraph two of the syllabus. In formulating the Howard charge, the Supreme Court recognized a number of competing factors regarding giving a supplemental instruction to a divided jury and attempted to accommodate those factors. State v. Lopez (1939), 90 Ohio App.3d 566, 582. The supplemental instruction must not be coercive by stressing that the jury must reach a verdict. It must, however, permit the trial judge to remind the jury of its purpose, namely, to reach a unanimous decision. It must also be balanced and neutral. It cannot single out jurors in the minority and instruct them to reconsider their position. It must encourage a verdict and it must be balanced, asking all jurors to reconsider their opinions. Howard, supra, at 192-194. -47- C. THE TRIAL COURT DID NOT ERR IN READING THE HOWARD CHARGE TO THE JURY. In the case sub judice, a review of the record demonstrates that the trial court did not err in giving the supplemental jury instruction to the jury. A review of the jury communication clearly reveals that the jury was at a standstill and needed further instruction. Contrary to defendant-appellant's argument, the Howard charge was formulated to be given under circumstances similar to the ones in the instant case. State v. Loza (1994), 71 Ohio St.3d 61, 81; State v. McClellan (1994), 93 Ohio App.3d 315, 326. After receiving the trial court's supplemental jury instruction, the jury returned to their deliberations eventually reaching a unanimous verdict which all twelve jurors orally acknowledged in open court. Accordingly, the record does not contain any evidence to support defendant-appellant's contention that the jury deliberations somehow deteriorated into majority rule. Defendant-appellant's fifth assignment of error is not well taken. VII. SIXTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, sixth assignment of error states: TYSON DIXON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY, WHEN A PROSPECTIVE JUROR WAS IMPROPERLY DISMISSED FOR CAUSE BASED ON OPPOSITION TO THE DEATH PENALTY THAT WOULD NOT HAVE -48- SERIOUSLY IMPAIRED HER ABILITY TO BE A JUROR. A. THE ISSUE RAISED: DISMISSAL OF PROSPECTIVE JUROR. Defendant-appellant argues, through his sixth assignment of error, that the trial court erred in dismissing a prospective juror based upon her concern regarding the imposition of the death penalty. It is defendant-appellant's position that, although the prospective juror in question did express hesitancy about imposing the death penalty, at no time did she indicate that she would be unable to perform her functions as a juror. As a result, defendant-appellant maintains that he was tried before a pro-death jury that did not represent a fair cross-section of the community. Defendant-appellant's sixth assignment of error is not well taken. B. STANDARD OF REVIEW FOR JUROR EXCLUSION. R.C. 2945.25, which deals with causes of challenging of jurors, provides in pertinent part: A person called as a juror in a criminal case may be challenged for the following causes: (C) In the trial of a capital offense, that he unequivocally states that under no circumstances will he follow the instructions of a trial judge and consider fairly the imposition of a sentence of death in a particular case. A prospective juror's conscientious or religious opposition to the death penalty in and of itself is not grounds for a challenge for cause. All parties shall be given wide latitude in voir dire questioning in this regard. * * * -49- In State v. Rogers (1985), 17 Ohio St.3d 174, at paragraph three of the syllabus, the Ohio Supreme Court set forth the following standard for exclusion of a prospective juror in this situation: The proper standard for determining when a prospective juror may be excluded for cause based on his views on capital punishment is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. (Wainwright v. Witt [1985], 469 U.S. 412, 83 L.Ed.2d 841, followed). See State v. Davis (1991), 62 Ohio St.3d 326, 344. C. THE TRIAL COURT DID NOT ERR IN EXCLUDING THE PROSPECTIVE JUROR. In the case sub judice, a review of the record demonstrates that the trial court properly excluded the prospective juror based upon her feelings regarding the imposition of the death penalty. A review of the transcript reveals the following exchange between the trial court and the prospective juror: Now, if you determine that the aggravating circumstances outweigh the mitigating factors, mitigating factors that the defense will introduce about the defendant, any evidence they bring, and you have heard all that and you are deliberating, if you determine that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, will you be able to sign a recommendation of death with regard to the defendant? PROSPECTIVE JUROR: And how many years has it been since this has occurred? I know I can't take that into consideration. I'm a lousy juror. -50- THE COURT: No one is saying that, ma'am. There is no right or wrong. PROSPECTIVE JUROR: I know, you are just -- could I say that someone's life has to be ended by my decision? I wouldn't want to live with that. THE COURT: So what is your answer? PROSPECTIVE JUROR: No. (Tr. 716-717). Clearly, the prospective juror's response to the trial court's inquiry demonstrated a view on capital punishment that would substantially impair the performance of her duties as a juror in accordance with her instructions and oath. Accordingly, the trial court properly excused the prospective juror for cause based upon her view on the imposition of the death sentence. Defendant-appellant's sixth assignment of error is not well taken. VIII. SEVENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, seventh assignment of error states: THE PROSECUTION DENIED TYSON DIXON A FAIR TRIAL, WHEN IT ELICITED TESTIMONY THAT MR. DIXON CONSULTED WITH HIS ATTORNEY AFTER HIS ARREST AND THAT FOLLOWING THE CONSULTATION, THE POLICE DID NOT QUESTION HIM FURTHER. A. THE ISSUE RAISED: WHETHER DEFENDANT-APPELLANT WAS DENIED HIS RIGHT AGAINST SELF-INCRIMINATION. Defendant-appellant argues, through his seventh assignment of error, that the prosecution improperly commented upon his post- arrest silence in violation of the holding in the United States -51- Supreme Court case of Doyle v. Ohio (1976), 462 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240. Specifically, defendant-appellant objects to the following exchange between the prosecutor and state's witness, Detective Gregory Kunz: Q. You were asked a few questions about the oral statement that Tyson Dixon gave to you on the way down to the homicide unit, correct? A. Yes, sir. Q. And when you got to the homicide unit, was there an attorney waiting for him? A. No, sir. There was a message that an attorney had called asking us not to talk to him, that he was going to come to our building. We then ceased questioning. We booked him into our central prison unit and a short time later an attorney did appear and talked to him. Q. And do you recall the name of the attorney? A. It is in my report, but I don't recall. Q. Steven Bradley? A. Yes. Q. With Mr. Marein's office? A. I don't know if he is in the office. Q. But you did meet with an attorney who indicated that he represented Tyson Dixon? A. Yes. Q. All right. That was at your homicide office? A. Yes. Q. Thank you. MR. WALSH: That's all I have. -52- (Tr. 1965-1966). It is defendant-appellant's position that this line of questioning by the prosecution amounted to nothing more than a veiled and improper comment on defendant-appellant's post-arrest silence which violated defendant-appellant's Fifth, Sixth, Eighth and Fourteenth Amendment rights under the United States Constitution. Defendant-appellant's seventh assignment of error is not well taken. B. STANDARD OF REVIEW REGARDING SELF-INCRIMINATION. In Doyle v. Ohio, supra, the United States Supreme Court held that, at a state criminal trial, the use for impeachment purposes of a defendant's silence after arrest and after receiving Miranda warnings violated the Fifth Amendment right against self- incrimination as applied to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Doyle, the defendants were arrested for selling marijuana and then Mirandized after which no statements were made regarding their involvement in the crime. At trial, the prosecution repeatedly asked defendants why, if they were innocent, did they fail to offer the explanation for their actions that was eventually offered at trial (i.e., that they were framed by the government). The court noted that post- arrest silence may not be probative of guilt and because the Miranda warnings contain an implicit assurance "that silence will carry no penalty" it was improper for the trial court to have -53- allowed such inquiry. Id. at 618, 49 L.Ed.2d 91, 96 S.Ct. 2240. The Supreme court expounded on this holding in Wainwright v. Greenfield (1986), 474 U.S. 284, 291 in which it stated: "Doyle rests on 'the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.'" C. DEFENDANT-APPELLANT'S RIGHT AGAINST SELF-INCRIMINATION WAS NOT VIOLATED. In the case sub judice, a review of the disputed testimony demonstrates that, contrary to defendant-appellant's contention, the prosecution did not improperly comment upon or elicit improper testimony regarding defendant-appellant's post-arrest silence. In fact, the only statement made by Detective Kunz was that, after hearing defendant-appellant make a lengthy oral statement regarding his involvement in the crimes, the police ceased all questioning at the request of defendant-appellant's attorney. Such a comment does not rise to the level of a Doyle violation as it did not constitute a continuous and invading inquiry regarding defendant-appellant's post-Miranda silence. Greer v. Miller (1987), 483 U.S. 756; Ohio v. Brown (May 1, 1991), Lorain App. Nos. 90CA004836, 90CA004838, unreported. Clearly, the isolated reference at issue was not sufficiently prejudicial to violate defendant-appellant's due process rights. Greer, supra, at 765. -54- Defendant-appellant's seventh assignment of error is not well taken. IX. EIGHTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, eighth assignment of error states: THE PROSECUTION DENIED TYSON DIXON OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WHEN IT COMMENTED ON A DEFENSE WITNESS WHO, ULTIMATELY, WAS NOT CALLED TO TESTIFY. -55- A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT. Defendant-appellant argues, through his eighth assignment of error, that he was denied his constitutional right to a fair trial through misconduct of the prosecutor. Specifically, defendant-appellant maintains that during closing argument of the guilt phase portion of the trial the prosecutor impermissibly commented upon the failure of a specific defense witness to testify. The relevant portion of the transcript provides: Now, Mr. Marein referred in his opening statement that he gave you, and I made some notes here, and in his opening statement, his opening statement is like a promissory note. Mr. Kelleher: Objection. Mr. Walsh: Where you promise -- The Court: Overruled. Mr. Walsh: Where you promise what your evidence will show. Mr. Kelleher: Objection. The Court: Overruled. Mr. Walsh: And he told you that Rocco Hunter will testify that he saw Romell on February 24th by a store, and he saw him with an unknown black male, and that Cleveland Police never interviewed him. Where was that evidence from the defense? You didn't hear Rocco Hunter come in and testify here. They didn't bring any Rocco Hunter in. (Tr. 2448-2449). It is defendant-appellant's position that this reference by the prosecutor to Rocco Hunter's failure to testify amounted to prosecutorial misconduct which materially affected the jury and -56- its deliberations and substantially prejudiced defendant- appellant's right to a fair trial. Defendant-appellant's eighth assignment of error is not well taken. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT. Generally, conduct of a prosecuting attorney at trial shall not be grounds for reversible error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. An appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the appellant guilty. State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Awkal, supra. C. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL THROUGH PROSECUTORIAL MISCONDUCT. In the case sub judice, a review of the disputed comments made by the prosecutor during closing argument regarding the failure of defense witness Rocco Hunter to testify demonstrates that the comments in question did not substantially prejudice defendant- appellant and deprive him of a fair trial. In this instance, the prosecutor's statements appear to be directed toward the strength of the state's case rather than an improper comment on defendant- -57- appellant's failure to call a witness. In addition, the trial court instructed the jury that the state had the burden to prove all the elements of the charged offenses beyond a reasonable doubt thereby removing any prejudicial impact from the statements. State v. Love (1988), 49 Ohio App.3d 88, 91; State v. Price (Aug. 5, 1991), Butler App. No. CA90-08-158, unreported. Accordingly, defendant-appellant's eighth assignment of error is not well taken. X. NINTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's ninth assignment of error states: TYSON DIXON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY BY THE IMPROPER INTRODUCTION OF VICTIM IMPACT TESTIMONY DURING THE TRIAL PHASE OF HIS CASE. A. THE ISSUE RAISED: INTRODUCTION OF VICTIM IMPACT TESTIMONY. In his ninth assignment of error, defendant-appellant argues that the introduction of victim impact testimony during the guilt phase of the trial was improper. Specifically, defendant- appellant maintains that the testimony of Carmen Ellington, Maurice LeFlore's girlfriend, and Gregory Woolley, Joyce Woolley's husband, was merely an attempt by the prosecutor to influence the jury with irrelevant concerns of sympathy thereby increasing the likelihood of the jury returning a conviction. Defendant-appellant's ninth assignment of error is not well taken. -58- B. STANDARD OF REVIEW FOR VICTIM IMPACT TESTIMONY. In Payne v. Tennessee (1991), 501 U.S. 808, 115 L.Ed.2d 720, 111 S.Ct. 2597, the United States Supreme Court rejected the holdings in Booth v. Maryland (1987), 482 U.S. 496, 96 L.Ed.2d 440, 107 S.Ct. 2529 and South Carolina v. Gathers (1989), 490 U.S. 805, 104 L.Ed.2d 876, 109 S.Ct. 2207, that evidence relating to a victim or to harm caused to the victim by a capital defendant, does not generally reflect on the "blameworthiness" of the defendant, and that only evidence relating to "blameworthiness" is relevant to a capital sentencing decision. The Court stated: "We are not of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. 'The State has a legitimate interest in contradicting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.' Booth, 482 U.S., at 517 (White J., dissenting)(citation omitted). By turning the victim into a 'faceless stranger at the penalty phase of a capital trial,' Gathers, 490 U.S., at 821 (O'Connor, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder." Payne, Booth and Gathers each address what evidence may be introduced during the penalty phase of a capital trial. -59- In Ohio, victim impact testimony has been found to have limited admissibility. In State v. Post (1987), 32 Ohio St.3d 380, the Ohio Supreme Court recognized that the admission of victim impact evidence at a capital trial is not permitted by state statute. The court noted that such evidence denies a fair sentencing determination as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution. The Ohio Supreme Court has since indicated, however, that while victim impact evidence is generally inadmissible in the guilt phase of an aggravated murder case, it is admissible where the evidence is illustrative of the circumstances surrounding the commission of the alleged offense. State v. Fautenberry (1995), 72 Ohio St.3d 435, 440; State v. Loza, supra, at 82; State v. Lorraine (1993), 66 Ohio St.3d 414, 420. C. VICTIM IMPACT TESTIMONY IMPROPER. In the case sub judice, a review of the testimony of Carmen Ellington, Maurice LeFlore's girlfriend, demonstrates that the prosecution sought to introduce evidence relating to Ms. Ellington's life after LeFlore's death. Specifically, Ms. Ellington testified that she eventually withdrew from school at Kent State University and moved to Atlanta, Georgia after the murders. Similarly, a portion of the testimony of Gregory Woolley, Joyce Woolley's husband, centered upon the effect that the murders have had on the couple's children and family life. Clearly, this testimony went beyond merely illustrating the -60- circumstances surrounding the commission of the offenses in question and was therefore improper. Any error, however, will be deemed harmless if it did not affect the accused's "substantial rights" under Crim.R. 52(A). State v. King (February 23, 1993), Cuyahoga App. No. 61040, unreported. An accused has a constitutional guarantee to trial free from prejudicial error, not a trial free from all error. An error is harmless and does not provide grounds for reversal where no reasonable probability exists that unlawful testimony contributed to the accused's conviction. State v. Lytle (1976), 48 Ohio St.2d 391, paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio (1978), 438 U.S. 910, 57 L.Ed.2d 1154, 98 S.Ct. 3135; State v. Brown (1992), 65 Ohio St.3d 483. Upon review of the overall testimony of Carmen Ellington and Gregory Woolley, this court finds there is no reasonable probability that said testimony contributed in any way to defendant-appellant's conviction. Therefore, the admission of this testimony amounts to harmless error. Defendant-appellant's ninth assignment of error is not well taken. XI. TENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, tenth assignment of error states: TYSON DIXON WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY THE INTRODUCTION OF GRUESOME PHOTOGRAPHS, WHOSE EFFECT COULD ONLY INFLAME THE JURY. -61- A. THE ISSUE RAISED: ADMISSION OF PHOTOGRAPHIC EVIDENCE. Defendant-appellant maintains that he was denied a trial before a fair and impartial jury by the introduction of gruesome photographs of the crime scene and of the victims in both the guilt and penalty phases of his trial. It is defendant- appellant's position that the photographs in question which contain a great deal of blood and gore could only serve to inflame the jury against the perpetrator of such extreme violence. Defendant-appellant maintains further that this was particularly true during the penalty phase of the trial given the fact that defendant-appellant had already been convicted of the murders in question and the jury was in the process of trying to determine if the death penalty was an appropriate sentence under the circumstances of this case. See, State v. Thompson (1987), 33 Ohio St.3d 1. Defendant-appellant's tenth assignment of error is not well taken. B. STANDARD OF REVIEW FOR ADMISSION OF PHOTOGRAPHIC EVIDENCE. The admission of photographic evidence is a decision left to the sound discretion of the trial court. State v. Jackson (1991), 57 Ohio St.3d 29. In State v. Maurer, supra, the Ohio Supreme Court stated at paragraph seven of the syllabus: Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant -62- is outweighed by their probative value and the photographs are not repetitive or cumulative in number. In State v. DePew (1988), 38 Ohio St.3d 275, the Ohio Supreme Court, in dealing with the admission photographic evidence during the penalty phase of the trial, stated: Our decision in Thompson is being misconstrued, we assume unintentionally, as holding that the introduction of gruesome photographs in the penalty stage is reversible error. It is not. Thompson was meant principally to focus on the question of prosecutorial misconduct, especially the issue of commenting on a defendant's silence at any stage of the proceedings. In fact, we find that the introduction of photographs, even if gruesome, in the penalty stage is not error and is indeed authorized by R.C. 2929.03(D)(1), which provides in part that during the penalty stage, the court and the trial jury shall consider "*** any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing ***." In addition, this section provides that the court and the trial jury "*** shall hear testimony and other evidence that is relevant to the nature and circumstances of the aggravating circumstances the offender was found guilty of committing ***." Id. at 282. See, also, State v. Awkal, supra. C. ADMISSION OF PHOTOGRAPHIC EVIDENCE DID NOT CONSTITUTE AN ABUSE OF DISCRETION. In the case sub judice, a review of the record demonstrates that the photographs of the Ford Explorer and the crime scene in general, while admittedly gruesome, serve to illustrate the testimony of a number of prosecution witnesses as to how the crime most probably occurred and as to the location of the bodies when the police arrived. Similarly, the autopsy photographs -63- illustrate the entrance and exit wounds sustained by the victims and support the testimony of the deputy coroner and the other forensic witnesses. Clearly, the admission of the photographs in questions was neither repetitive nor cumulative in nature. This is particularly true in light of the fact that the trial court excluded a number of photographs that were potentially prejudicial to defendant-appellant's case. Therefore, since the admission of the photographs served to illustrate the testimony set forth by the state and the photographs themselves were relevant to the very nature of the underlying offenses, the trial court did not abuse its discretion in admitting this evidence in both the guilt and penalty phases of the trial and defendant- appellant was not denied his constitutional rights by the admission of the evidence. State v. Frazier (1995), 99 Ohio App.3d 1; State v. Morales (1987), 32 Ohio St.3d 252 at 257-258; cf., State v. Watson (1991), 61 Ohio St.3d 1 at 7. For the foregoing reasons, defendant-appellant's tenth assignment of error is not well taken. XII. ELEVENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, eleventh assignment of error states: THE TRIAL COURT ERRED WHEN IT ALLOWED THE JURY TO CONSIDER FOUR COUNTS OF AGGRAVATED MURDER ALTHOUGH THERE WERE ONLY TWO VICTIMS, IN VIOLATION OF R.C. 2941.25(A) AND IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE CONTAINED IN SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. -64- A. THE ISSUE RAISED: MERGER OF SEPARATE AGGRAVATED MURDER COUNTS. Defendant-appellant was indicted on two counts of aggravated murder for each victim. The trial court merged these counts prior to sentencing and sentenced defendant-appellant on two counts. Defendant-appellant argues that the trial court failed to merge the duplicate capital specifications at the proper time thereby allowing the jury to consider these specifications during penalty phase deliberations possibly influencing the jury and improperly tipping the balance in favor of the death penalty. Defendant-appellant's eleventh assignment of error is not well taken. B. STANDARD OF REVIEW FOR MERGER OF SEPARATE AGGRAVATED MURDER COUNTS. The Ohio Supreme Court has held when a defendant is convicted on two counts of aggravated murder arising out of a single killing, the trial court may sentence the defendant on only one count. State v. Hawkins (1993), 66 Ohio St.3d 339, 346; State v. Webb (1994), 70 Ohio St.3d 325, 341; State v. Capone (July 20, 1995), Cuyahoga App. No. 67971, unreported. The Ohio Supreme Court has also held that a defendant who is convicted on two or more counts containing death penalty specifications has the right to have the jury in the penalty phase consider the aggravating circumstances for each count individually, and to not combine aggravating circumstances from -65- different counts. State v. Cooey (1989), 46 Ohio St.3d 20, 37; State v. Cook (1992), 65 Ohio St.3d 516, 526-527. C. THE TRIAL COURT PROPERLY MERGED THE SEPARATE AGGRAVATED MURDER COUNTS. In the case sub judice, a review of the sentencing transcript demonstrates that the trial court properly merged the separate counts of aggravated murder. The relevant portion of the transcript states: Therefore, it is the sentence of this court that counts 1 and 3 are merged as a matter of law. Counts 2 and 4 are merged as a matter of law. I hereby accept independently, from my independent review, the recommendation of the jury and affirm the recommendation of the jury that Tyson Dixon be sentenced to die in the electric chair at the Southern Ohio Correctional facility in Lucasville on February 24, 1995, which is one year from the date of these senseless vicious killings. (Tr. 2945). The trial court in this case imposed only a single death penalty. Accordingly, there was only one judgment of conviction based upon the capital specifications. State v. Henderson (1979), 58 Ohio St.2d 171. For these reasons, defendant-appellant suffered no prejudice from having been sentenced to death upon the jury's consideration of the separate aggravated murder counts during the penalty stage of the proceedings. State v. Cook, supra, at 527. Defendant-appellant's eleventh assignment of error is not well taken. XIII. TWELFTH ASSIGNMENT OF ERROR -66- Tyson Dixon's, defendant-appellant's, twelfth assignment of error states: TYSON DIXON WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO DELIBERATIONS BY A JURY THAT WAS FULLY COGNIZANT OF ITS RESPONSIBILITIES AND DUTIES, WHEN THE TRIAL COURT INSTRUCTED IT THAT ITS DEATH VERDICT WAS ONLY A RECOMMENDATION BUT A LIFE VERDICT WAS BINDING ON THE COURT. A. THE ISSUE RAISED: DEATH PENALTY RECOMMENDATION. Defendant-appellant argues, through his twelfth assignment of error, that the trial court incorrectly instructed the jury that, should it return a death verdict, that verdict was only a recommendation and not binding on the trial court who had the final decision as to whether defendant-appellant would be sentenced to death. Defendant-appellant also objects to the trial court's jury instruction regarding a verdict of life imprisonment. It is defendant-appellant's position that the jury instruction in question tended to minimize the importance of a death sentence by allowing the jury to believe that the ultimate responsibility for imposition of the death sentence did not rest with the jury but with the trial court. Defendant-appellant's twelfth assignment of error is not well taken. B. STANDARD OF REVIEW FOR DEATH SENTENCE RECOMMENDATION. The Ohio Supreme Court has consistently rejected the argument set forth by defendant-appellant in his twelfth assignment of error. See State v. Bradley (1989), 42 Ohio St.3d 136, 147, citing State v. Buell (1986), 22 Ohio St.3d 124. To the -67- contrary, the court has held that, "The jury in the penalty phase of a capital prosecution may be instructed that its recommendation to the court that the death penalty be imposed is not binding and that the final decision as to whether the death penalty shall be imposed rests with the court." State v. Jenkins (1984), 15 Ohio St.3d 164, paragraph six of the syllabus. In State v. Loza, supra, at 73, the court explained its position further stating: *** This court has repeatedly stated our preference that no comment be made on the question of who bears the responsibility for determining the appropriateness of a death sentence. However, we also have held that such an instruction accurately states Ohio law and does not constitute reversible error. State v. Henderson (1988), 39 Ohio St.3d 24, 30, 529 N.E.2d 1237, 1243. See, also, State v. Williams (1986), 23 Ohio St.3d 16, 21-22, 23 OBR 13, 18-19, 490 N.E.2d 906, 912; State v. Steffen (1987), 31 Ohio St.3d 111, 113- 114, 31 OBR 273, 275, 509 N.E.2d 383, 387- 388. ***. C. JURY INSTRUCTION ON DEATH SENTENCE RECOMMENDATION DOES NOT CONSTITUTE ERROR. In the case sub judice, the trial court instructed the jury as follows: A jury recommendation to the court that the death penalty be imposed is just that, a recommendation and is not binding upon the court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this court. (Tr. 2882). Pursuant to the authority set forth in State v. Jenkins, supra, and State v. Loza, supra, it is apparent that the trial -68- court did not err in instructing the jury regarding the death sentence recommendation. Defendant-appellant's twelfth assignment of error is not well taken. XIV. THIRTEENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's thirteenth assignment of error states: THE TRIAL COURT'S INACCURATE PENALTY PHASE INSTRUCTIONS MISGUIDED THE JURY AS TO THEIR DUTIES UNDER THE LAW RENDERING THE RESULTANT SENTENCE UNRELIABLE AND VIOLATIVE OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9, 10 AND 16, ARTICLE I, OF THE OHIO CONSTITUTION. A. THE ISSUE RAISED: IMPROPER PENALTY PHASE JURY INSTRUCTIONS. In defendant-appellant's thirteenth assignment of error, he challenges a number of penalty phase jury instructions submitted to the jury by the trial court. Specifically, defendant- appellant challenges the trial court's instruction regarding the definition of reasonable doubt as well as the trial court's instruction regarding when to consider lesser penalties. Defendant-appellant also maintains that the trial court erred in refusing to instruct the jury that they could consider the guilty plea of co-defendant Rommell Wilkes. Lastly, defendant-appellant challenges the trial court's instruction to the jury that, "you must not be influenced by any consideration of sympathy or prejudice." It is defendant-appellant's position that these -69- alleged errors by the trial court deprived defendant-appellant of his constitutional rights. Defendant-appellant's thirteenth assignment of error is not well taken. -70- B. STANDARD OF REVIEW FOR JURY INSTRUCTIONS. A charge to the jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.2d 10, 12. It is well established that a trial court should confine its instructions to the issues raised by the pleadings and the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. In Ohio, it is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287. However, requested instructions should ordinarily be given if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. C. PENALTY PHASE JURY INSTRUCTIONS WERE PROPER. In the instant case, the trial court defined reasonable doubt to the jury during the penalty phase as follows: Reasonable doubt is present when, after you have carefully considered and compared all of the evidence, you cannot say you are firmly convinced of the truth of the charge. (Tr. 2877). There is no dispute that this is the standard statutory definition of reasonable doubt as set forth by R.C. 2901.05(D). In State v. Van Gundy (1992), 64 Ohio St.3d 230, 232, the Ohio Supreme Court stated: "The definition of -71- 'reasonable doubt' set forth in R.C. 2901.05 correctly conveys the concept of reasonable doubt and, therefore, is not an unconstitutional dilution of the state's requirement to prove guilt beyond a reasonable doubt." See, also, State v. Spirko (1991), 59 Ohio St.3d 1, 17. Accordingly, the trial court did not err in instructing the jury with the statutory definition of reasonable doubt. Defendant-appellant also maintains that the trial court erred in giving the jury an "acquittal first" instruction during the penalty phase. The trial court gave the jury the following instruction. On the other hand, if after considering all of the relevant evidence raised at trial, the testimony or evidence, the statement of the defendant Tyson Dixon, and the arguments of counsel, you find that the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstance which the defendant Tyson Dixon was found guilty of committing outweigh the mitigating factors, then you will return your verdict reflecting your decision. That is, you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstance of which the defendant was found guilty of committing outweigh the mitigating factors. In this event, you will then proceed to determine which of the two possible life imprisonment sentences to recommend to the court. (Tr. 2882-2883). In State v. Davis (June 8, 1995), Cuyahoga App. No. 64270, unreported, this court recently determined that the identical instruction given during the penalty phase was appropriate and that State v. Thomas (1988), 40 Ohio St.3d 213, -72- upon which defendant-appellant relies, was inapplicable. Accordingly, defendant-appellant's contention is without merit. Defendant-appellant maintains further that the trial court should have instructed the jury that they were permitted to consider the plea entered by defendant-appellant's co-defendant, Rommell Wilkes. In State v. Webb, supra, at 336, the Ohio Supreme Court found that a prosecutor's offer to negotiate a guilty plea in a capital case is not a mitigating factor under either R.C. 2929.04(B)(7) or the Eighth Amendment and, therefore, such an offer does not effect the appropriateness of the death penalty. Accordingly, the trial court's refusal to instruct on the co-defendant's plea was proper since it did not relate to defendant-appellant's character, prior record or to the circumstances of the offense. Lastly, defendant-appellant argues that the trial court erred by submitting the following instruction to the jury: *** you must not be influenced by any consideration of sympathy or prejudice. (Tr. 2886). In State v. Jenkins, supra, and State v. Lorraine, supra, at 417, the Ohio Supreme Court found such an instruction to be proper since sympathy and prejudice are irrelevant to the duty of jurors. Accordingly, the trial court did not err by submitting the instruction in question to the jury. Defendant-appellant's thirteenth assignment of error is not well taken. -73- XV. FOURTEENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, fourteenth assignment of error states: WHERE TRIAL COUNSEL FAILS TO OBJECT TO ERRONEOUS JURY INSTRUCTIONS AND IMPROPER COMMENTS BY 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. A. THE ISSUE RAISED: EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant maintains that he was deprived of his constitutional right to effective assistance of counsel. Specifically, defendant-appellant argues that trial counsel failed to object to numerous erroneous jury instructions and improper comments by the prosecutor. It is defendant-appellant's position that these alleged failures allowed the case to be decided without constitutionally sufficient safeguards in place. Defendant-appellant's fourteenth assignment of error is not well taken. B. STANDARD OF REVIEW FOR EFFECTIVE ASSISTANCE OF COUNSEL. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. -74- In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley, supra. "When considering an allegation of ineffective assistance of counsel, a two- step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, -75- supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141. C. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. In the case sub judice, defendant-appellant principally maintains that the trial counsel failed to properly object to the trial court's failure to follow State v. Stringer (1992), 63 Ohio St.3d 167 regarding "hopelessly deadlocked" juries. Defendant- appellant argues that his jury was, in fact, hopelessly deadlocked and therefore, under Stringer, the trial court was required to sentence defendant-appellant to life imprisonment. A review of the record demonstrates, however, that at no time did the jury become hopelessly deadlocked as defendant-appellant incorrectly maintains. While it is true that the jury was at an impasse during deliberations, the trial court's reading of the Howard charge eventually enabled the jury to return the verdict which all twelve jurors orally acknowledged in open court. Accordingly, Stringer does not apply to the facts of this case. Similarly, defendant-appellant's argument relating to trial counsel's failure to object to the trial court's definition of aggravating circumstances and reasonable doubt, as well as the -76- alleged acquittal first instruction, have previously been dealt with by this court and found to be without merit. Clearly, trial counsel's performance did not fall below the objective standard of reasonableness and defendant-appellant has not demonstrated a reasonable probability that, but for the alleged errors, the outcome of the trial would have been different. State v. Loza, supra, at 84. Defendant-appellant's fourteenth assignment of error is not well taken. XVI. FIFTEENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, fifteenth assignment of error states: PROSECUTORIAL MISCONDUCT DURING THE CLOSING ARGUMENT OF BOTH THE GUILT-INNOCENCE AND PENALTY PHASES OF TRIAL DENIED THE APPELLANT HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS. Defendant-appellant argues, through his fifteenth assignment of error, that the prosecutor exceeded the bounds of permissible zeal on numerous occasions throughout closing argument during both the guilt and penalty phases of trial. Specifically, defendant-appellant objects to the prosecutor's characterization of his defense as a "smoke screen" (Tr. 2436, 2437) and as a "bill of goods" (Tr. 2863). In addition, defendant-appellant objects to the prosecutor's expression of a personal opinion regarding the guilt of the accused, the introduction of victim -77- impact testimony, the characterization of defendant-appellant as a repeat offender and the alleged request to send a message to the community through the verdict. (Tr. 2870). For the following reasons, defendant-appellant's fifteenth assignment of error is not well taken. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT. As previously stated in this court's discussion of defendant- appellant's eighth assignment of error, generally, conduct of a prosecuting attorney at trial shall not be grounds for reversible error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch, supra; State v. Papp (1978), 64 Ohio App.2d 203. An appellant is only entitled to a new trial when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the appellant guilty. State v. Maurer, supra; State v. Awkal, supra. The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. C. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL THROUGH PROSECUTORIAL MISCONDUCT. -78- In the instant case, a review of the record from the trial court in its entirety fails to demonstrate that any of the allegedly improper statements made by the prosecutor deprived defendant-appellant of a fair trial. Initially, defendant- appellant maintains that the prosecutor's characterization of the defense case as a "smoke screen" and a "bill of goods" somehow deprived him of his right to a fair trial. Parties are generally granted wide latitude in closing arguments, and the question as to the propriety of these arguments is generally left to the sound discretion of the trial court. State v. Maurer, supra, at 269. It is clear from the record that, absent the prosecutor's comments, the jury would still have found defendant-appellant guilty; therefore, the comments do not rise to the level of reversible error. Similarly, the remaining comments by the prosecutor to which defendant-appellant objects, i.e., the characterization of defendant-appellant as a repeat offender and the introduction of victim-impact evidence, did not deprive defendant-appellant of a fair trial. State v. Davis, supra. Lastly, defendant-appellant maintains that the prosecutor improperly requested that the jury send a message to the community by returning a verdict of guilty. While it is true that a closing argument that goes beyond the record may constitute prejudicial error, particularly where the remarks call for the jury to convict in order to meet public demand, in this case a review of the prosecutor's closing argument in both the guilt and penalty phases of the trial discloses no prejudice to -79- defendant-appellant. In addition, the trial court instructed the jury to decide defendant-appellant's case on the merits of the evidence and it is presumed the jury will follow the trial court's instructions. State v. Loza, supra, at 79. Defendant-appellant's fifteenth assignment of error is well taken. XVII. SIXTEENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, sixteenth assignment of error states: THE TRIAL COURT ERRED BY RESTRICTING THE APPELLANT'S MITIGATION EVIDENCE IN THE PENALTY PHASE IN VIOLATION OF THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A. THE ISSUE RAISED: ADMISSION OF MITIGATION EVIDENCE. Defendant-appellant argues that the trial court erred in excluding the proffered testimony of Charles See, a cultural mitigation expert, and Lisa Roth, a licensed social worker, during the penalty phase of the proceedings. Mr. See was going to testify regarding the unique cultural pressures on young black males in African-American communities and Ms. Roth was going to testify regarding early intervention and dealing with familial problems common in an urban environment similar to the one in which defendant-appellant was raised. The trial court excluded Mr. See's testimony on the basis that Mr. See did not possess the requisite educational background necessary to be considered an expert in the field. Ms. Roth's testimony was excluded on the basis of relevancy. Defendant-appellant maintains both of the -80- excluded witnesses would have provided insight into the cultural and familial framework which allegedly caused defendant-appellant to become involved in the world and culture of illegal drugs. Defendant-appellant's sixteenth assignment of error is well taken. B. STANDARD OF REVIEW FOR MITIGATION. R.C. 2929.04(B) and (C), which sets forth mitigating factors to be considered in determining the sentence for a capital offense, provides: (B) If one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment or count in the indictment and proved beyond a reasonable doubt, and if the offender did not raise the matter of age pursuant to section 2929.023 [2929.02.3] of the Revised Code or if the offender, after raising the matter of age, was found at trial to have been eighteen years of age or older at the time of the commission of the offense, the court, trial jury, or panel of three judges 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 following factors: (1) Whether the victim of the offense induced or facilitated it; (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law: -81- (4) The youth of the offender; (5) The offender's lack of significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death. (C) The defendant shall be given great latitude in the presentation of evidence of the factors listed in division (B) of this section and of any other factors in mitigation of the imposition of the sentence of death. It is well established that a trial court in a capital litigation may not restrict the jury from considering any relevant mitigating evidence. Lockett v. Ohio (1978), 438 U.S. 586. The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Dunlop (1995), 73 Ohio St.3d 308, 316; State v. Sage (1987), 31 Ohio St.3d 173. The trial court's decision regarding the admission or exclusion of relevant evidence will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: -82- "The term 'abuse of discretion' connotes more than an error or law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING THE MITIGATION TESTIMONY. In the case sub judice, a review of the proffered testimony of cultural mitigation expert Charles See demonstrates that Mr. See would have informed the jury about various factors present in the contemporary urban environment that contribute to and impact upon the life style, life course and life direction of African- American children growing up in that particular setting. (Tr. 2741). Among the factors Mr. See would have emphasized were crime rate in the community, the drug culture, family background, extended family and institutions located in the community such as schools and churches. Mr. See stated that his proffered testimony was based upon twenty hours of interviews with defendant-appellant as well as defendant-appellant's family and friends. Mr. See has worked in this area for approximately thirty years, has been published on a number of occasions and has testified before the United States Senate Subcommittee on the Judiciary. (Tr. 2745). Similarly, the proffered testimony of Lisa Roth demonstrates that Ms. Roth intended to focus her testimony upon areas of defendant-appellant's adolescent -83- development which were neglected during his youth. In addition, Ms. Roth proposed to testify regarding defendant-appellant's potential for rehabilitation in the state penal system. -84- Viewing the proffered testimony of cultural mitigation expert Charles See and social worker Lisa Roth under the auspices of R.C. 2929.04(C), it is apparent that the excluded testimony was, in fact, relevant in the mitigation hearing regarding the imposition of a possible death sentence. Given the "great latitude" allowed a defendant in the presentation of evidence during the penalty phase of a capital proceeding, the trial court erred and abused its discretion by improperly limiting and excluding evidence relating to defendant-appellant's familial background, personal history and cultural experiences. See Lockett v. Ohio (1978, 438 U.S. 586; Eddings v. Oklahoma (1982), 455 U.S. 104. Had such information been provided to the jury, it is possible that the jury's decision regarding the ultimate sentence defendant-appellant was to receive could have been significantly affected. For the foregoing reasons, the trial court erred in excluding the relevant mitigation evidence proffered by defendant-appellant. Defendant-appellant's sixteenth assignment of error is well taken. This case must be remanded to the trial court for re- sentencing pursuant to R.C. 2929.06. XVIII. SEVENTEENTH ASSIGNMENT OF ERROR Tyson Dixon's, defendant-appellant's, seventeenth and final assignment of error states: IMPOSITION OF THE DEATH SENTENCE VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 9, 10 AND 16, ARTICLE I, OF THE OHIO CONSTITUTION. -85- -86- A. THE ISSUE RAISED: CONSTITUTIONALITY OF OHIO'S DEATH PENALTY STATUTES. Defendant-appellant argues, through his seventeenth and final assignment of error, that Ohio's death penalty statutes are unconstitutional. Defendant-appellant challenges the constitution-ality of the death penalty statutes with a variety of arguments. Defendant-appellant's seventeenth and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR CONSTITUTIONALITY OF OHIO'S DEATH PENALTY STATUTES. The Ohio Supreme Court has addressed the constitutionality of state death penalty statutes on numerous occasions and found the statutes in question constitutionally sound. State v. Jenkins, supra; State v. Loza, supra, at 84; State v. Carter (1995), 72 Ohio St.3d 545, 560; State v. Woodard (1993), 68 Ohio St.3d 70, 79. C. OHIO'S DEATH PENALTY STATUTES ARE CONSTITUTIONAL. In the case sub judice, it is apparent that the Ohio Supreme Court has already addressed and rejected all of defendant- appellant's challenges to the constitutionality of the death penalty based upon the previously cited authority. Defendant-appellant's seventeenth assignment of error is not well taken. This court has reviewed the record with reference to defendant-appellant's seventeen assignments of error and has found only assignment of error sixteen to contain merit. Accordingly, the judgment of the trial court is affirmed in part, -87- reversed in part and remanded for re-sentencing pursuant to R.C. 2929.06. Judgment affirmed in part, reversed in part and remanded. -88- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant and said appellee equally share the costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J. and KARPINSKI, J., CONCUR. DAVID T. MATIA 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 .