COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68531 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL GOODWIN : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 17, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-314527 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: THOMAS CONWAY (#0021183) Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: STEPHEN A. FERRELL (#0061707) Assistant State Public Defender Counsel of Record J. JOSEPH BODINE, JR. (#0042132) Assistant State Public Defender Ohio Public Defender Commission 8 East Long Street - 11th Floor Columbus, OH 43215-2998 ROBERT M. INGERSOLL (#0023748) Assistant Public Defender The Marion Building - Room 307 1276 West Third Street Cleveland, OH 44113 - 2 - SPELLACY, P.J.: Defendant-appellant Michael Goodwin ("appellant") appeals from one count of aggravated murder in violation of R.C. 2903.01(A), one count of aggravated murder in violation of R.C. 2903.01(B), and from the imposition of the death penalty. Appellant assigns the following errors for review: 1. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY AT THE PENALTY PHASE REGARDING THE FACTORS TO CONSIDER IN RECOMMENDING PUNISHMENT AND WHEN IT INDEPENDENTLY CONSIDERED MORE THAN ONE AGGRAVATING CIRCUMSTANCE. U.S. CONSTITUTION AMENDMENTS VI, VIII AND XIV; OHIO CONSTITUTION ARTICLE I, SECTIONS 9, 10, AND 16. 2. DEFENSE COUNSEL'S ACTIONS AND OMISSIONS AT THE PENALTY PHASE OF APPELLANT GOODWIN'S CAPITAL TRIAL DEPRIVED HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE OHIO CONSTITUTION. 3. DEFENSE COUNSEL'S ACTIONS AND OMISSIONS AT THE GUILT PHASE OF GOODWIN'S CAPITAL TRIAL DEPRIVED HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE OHIO CONSTITUTION. 4. PROSECUTORIAL MISCONDUCT IN APPELLANT GOODWIN'S CAPITAL TRIAL DENIED MR. GOODWIN HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOUR- TEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. 5. A COURT OF APPEALS CANNOT, CONSISTENT WITH THE MANDATE OF OHIO REV. CODE ANN. SECTION 2929.05 (ANDERSON 1993), CONDUCT A REVIEW OF A CAPITAL CASE WHEN THE RECORD ON APPEAL IS INCOMPLETE. 6. APPELLANT GOODWIN'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS DENIED THE EFFEC- TIVE ASSISTANCE OF COUNSEL AT VOIR DIRE. - 3 - 7. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT GOODWIN WHEN IT FAILED TO ASSURE APPELLANT OF A FAIR AND IMPARTIAL JURY BY COMMITTING ERRORS IN VOIR DIRE. U.S. CONSTITUTION AMENDMENT VI, VIII AND XIV; OHIO CONSTITUTION ARTICLE I SECTIONS 9, 10 AND 16. 8. A CAPITAL DEFENDANT IS DENIED HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS AND A RELIABLE DETERMINATION OF HIS GUILT AND SENTENCE AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT ADMITS EVIDENCE OF LITTLE PROBATIVE VALUE THAT IS HIGHLY PREJUDICIAL. 9. WHEN A TRIAL COURT RECEIVES AND CONSIDERS A VICTIM'S REQUEST FOR THE DEATH PENALTY, A RESULTING SENTENCE OF DEATH IS UNRELIABLE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 10. THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE THE ELEMENT OF PRIOR CALCULATION AND DESIGN BEYOND A REASONABLE DOUBT. APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. 11. THE TRIAL COURT ERRED BY GIVING THE JURY AN INSTRUC- TION ON REASONABLE DOUBT THAT WAS BASED UPON A DEGREE OF PROOF BELOW THAT REQUIRED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 12. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER. U.S. CONSTITUTION AMENDMENTS VI, VIII AND XIV, OHIO CONSTITUTION ARTICLE I, SECTIONS 9, 10 AND 16. 13. WHEN THE DEATH SENTENCE IS EXCESSIVE AND DISPROPOR- TIONATE TO THE SENTENCES IN SIMILAR CASES, AND WHEN IT IS INAPPROPRIATE, THE DEATH SENTENCE MUST BE VACATED AND A LIFE SENTENCE IMPOSED. 14. OHIO'S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. - 4 - I. On September 13, 1994, appellant and Jermaine Brown went to the home of Derrick Flonnory between 8:15 and 8:30 a.m. Appellant asked Flonnory to assist appellant in robbing a neighborhood grocery store, the Big Star Market, located at East 55th Street and Quimby in Cleveland. Flonnory refused because he was tired. Appellant and Brown left. Appellant did not ask Brown to accompany him to the Big Star Market. The two parted ways as appellant told Brown he had to take care of some business downtown. Appellant succeeded in recruiting James Padgett and James Johnson to join in his plan. The three walked to the Big Star Market. Appellant was armed with a .357 revolver he had illegally purchased from Brown two weeks earlier. Johnson carried a .45 semi-automatic gun. Padgett later denied having a weapon that day and no one saw Padgett with a gun during the robbery. The three wore hats pulled low over their faces. The trio arrived at the store between 9:30 and 9:45 a.m. Appellant entered the store first and then stepped back outside to signal to Johnson and Padgett to continue with the scheme to rob the store. Inside the store that day were two employees, cousins Mustafa Sammour and Almohannad Ismail Sammour, known as Shorty. Each stood behind separate counters on either side of the door. As the three cohorts entered the store, Padgett sought to distract Shorty by asking for some merchandise. Shorty turned his back to the men to retrieve the requested item and was - 5 - grabbed by Padgett or Johnson. Appellant did the same to Mustafa and pulled out his weapon. Appellant was screaming at Mustafa to move and to take him to where the money was. Mustafa stood with his hands up over his head. Appellant pressed the muzzle of his .357 Magnum to Mustafa's forehead. Appellant then fired a bullet through Mustafa's head, killing Mustafa Sammour instantly. Appellant stood for a few seconds before going to the other side of the store and grabbing Shorty. Appellant demanded Shorty accompany him to the store's safe which was located in a small room toward the front of the store. While Shorty walked toward the small room, appellant kept his gun to Shorty's head. Shorty succeeded in opening the safe and began to give appellant the money. Appellant could not reach into the safe because the open office door prevented the safe from being fully opened. Appellant fired a second shot into the floor. After all of the money was removed from the safe, appellant told Shorty to take him to the lottery machine. As the two stepped out of the small room into the store, appellant was informed that a milk delivery truck had pulled up outside the store. Appellant shoved Shorty aside. The three began to run from the store. On his way out, appellant reached into the open cash register drawer above Mustafa Sammour's body and removed some more cash. Appellant shoved the money into his pocket as he exited the store, dropping some of the bills to the pavement. Appellant, Padgett, and Johnson went to appellant's home where - 6 - the money was divided. Appellant had splatters of blood on his shirt and blood on his shoes. Appellant reportedly told Padgett Mustafa was shot because Mustafa reached for appellant's mask. No one saw Mustafa make any movements. Mustafa Sammour's hands were above his head at the time of the shooting. Johnson testified appellant stated he had not meant to shoot the clerk. The morning of the robbery, appellant telephoned a friend, Tyrone Griffin, and asked Griffin to throw something away for him. Griffin went to appellant's house and removed a bag from the stairs as appellant had directed. Griffin took the bag to his grand- father's home. Griffin removed a shirt with a "7" on it that appellant wore during the robbery and a pair of pants and burned the clothing in a fire his grandfather had lit in his backyard. The police recovered a partially mangled bullet at the scene. The bullet could not have been fired from a .45 caliber semiautomatic handgun but had to have been fired from a .357 revolver or a .38 revolver. There was no evidence a semi-automatic weapon was fired at the crime scene. The police arrested appellant for the robbery and murder the next day, September 14, 1994. Appellant gave a statement to the police in which he admitted his involvement in the crime but claimed he had acted alone. Appellant averred his gun just went off, killing Mustafa. The gun unexpectedly fired again when appellant tried to reach into the safe and remove money. - 7 - While in jail, appellant met a friend of his, Antoine Robinson. Robinson asked appellant if he committed the murder. Appellant replied in the positive and said that he already had given police a statement admitting his culpability. Appellant asked Robinson how long a prison term he thought appellant would receive. Robinson replied fifteen or twenty to life. Appellant said he could do it, whatever they gave him. Appellant then went to sleep. Police later brought appellant back to the Homicide Unit and again advised appellant of his Miranda rights. The police told appellant he was being charged with capital murder in connection with the Big Star Market homicide. Appellant was quite surprised the case would be prosecuted as a death penalty case. The police let appellant know they were aware that at least three people were involved in the robbery. Appellant asked for a couple of hours to think about whether he wished to speak further to police. Appellant returned later and gave a second statement in which he identified the other two men. Appellant stated Padgett had the .357 Magnum and was responsible for the murder. The police arrested both Johnson and Padgett. While in jail, appellant and Johnson spoke. Appellant revealed to Johnson that he would blame the killing on Padgett as Padgett was the only one of the three without children. The police identified appellant as the shooter. Padgett and Johnson both were offered plea bargains in which the two pled - 8 - guilty to murder and aggravated robbery in exchange for their testimony at appellant's trial. Padgett and Johnson were sentenced following appellant's trial. Appellant was charged with aggravated murder in violation of R.C. 2903.01(A) with felony murder and firearm specifications; aggravated murder in violation of R.C. 2903.01(B) with felony murder and firearm specifications; aggravated robbery in violation of R.C. 2911.01(A)(1) with a firearm specification, and with having a weapon while under a disability in violation of R.C. 2923.13. Appellant was brought to trial on December 5, 1994. The defense rested after the close of the prosecution's case. The jury returned a verdict of guilty on all counts. No mitigation evidence was presented during the penalty phase of the trial. The jury recommended death. On December 29, 1994, the trial court sentenced appellant to death. II. In his first assignment of error, appellant contends the trial court committed reversible errors during the penalty phase of the trial. Appellant first asserts the trial court erred in not instructing the jury to weigh separately the aggravating circum- stance for each count of murder against the mitigation evidence. Appellant argues the trial court's instruction incorrectly led the jury to group the aggravating circumstance from both counts of murder and weigh the aggregate against his mitigation. - 9 - Appellant was convicted for two counts of aggravated murder. The first count charged that appellant purposely with prior calculation and design caused the death of Sammour. The second count was for causing the death of Sammour while committing an aggravated robbery. Both counts also contained the same felony murder specification that the offense was committed while the offender was committing aggravated robbery and that the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design. The trial court defined aggravating circumstances as specifi- cation one of Count One and specification one of Count Two of the indictment. The jury was instructed to weigh the evidence offered in mitigation against the aggravating circumstances. The aggravating circumstances would outweigh the mitigating factors if the aggravating circumstances were more important. The trial court stressed that the quality of the evidence was to receive the jury's primary consideration. The trial court did state that the jury was not only to consider the quantity of the aggravating circumstances against the quantity of the mitigating factors but must consider the quality or importance of both. In State v. Cooey (1989), 46 Ohio St.3d 20, paragraph three of the syllabus, the court held: When a capital defendant is convicted of more than one count of aggravated murder, the penalty for each individual count must be assessed separately. Only the aggravating - 10 - circumstances related to a given count may be considered in assessing the penalty for that count. Under Cooey, the trial court erred in not instructing the jury that only one aggravating circumstance could be weighed against appel- lant's mitigation evidence for each count of murder. Such an error will be deemed prejudicial where the aggravating circumstances would not have outweighed mitigation unless the aggravating circum- stances were combined. It must be noted that appellant failed to object to the jury instruction. Therefore, any claim of error is waived unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12. The jury instruction will be reviewed under Crim.R. 52(B) to determine if plain error is present. The plain error rule is applied only with utmost caution and invoked under exceptional circumstances in order to prevent a manifest miscarriage of justice. State v. Cooperrider (1983), 4 Ohio St.3d 226. The aggravating circumstance was the same for both counts. There were no factors to be considered by the jury that were different for either count and that should not have been considered for one count and not the other. The trial court spoke of the importance of the quality of the aggravating circumstances and mitigating factors over any consideration of the quantity of both. Further, little evidence of mitigation was present in the instant case. The paucity of mitigating factors leaves little to weigh - 11 - against the sole aggravating specification. Appellant was not prejudiced by the instruction, especially not to the level of plain error. As noted by the court in State v. Cook (1992), 65 Ohio St.3d 516, any error which may occur by a jury combining aggravating specifications in one count with those in another is cured by a reviewing court's independent review of the record and reweighing of aggravating circumstances against mitigating factors. Id., at 527. Appellant argues he invoked his right to have his penalty be determined by a jury and that independent review will not cure the error as he would no longer be sentenced by a jury. Appellant points out that the defendant in Cooey was tried before a three judge panel and not to a jury. This contention is rejected as Cook was a jury trial yet it was held that any error would be cured by independent review and the reweighing of aggravating circumstances versus mitigating evidence. Appellant next asserts the jury and trial court weighed the separate components of the R.C. 2929.04(A)(7) specification as separate aggravating circumstances. The aggravating specification for both counts of which appellant was convicted was that found in R.C. 2929.04(A)(7). This aggravating circumstance provides for the imposition of the death penalty if the offense was committed * * * while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the - 12 - commission of the aggravated murder or, if not the principal offender, committed the aggra- vated murder with prior calculation and design. Appellant argues the trial court failed to charge the jury it was to find appellant was the principal offender or, if not the principal offender, committed the murder with prior calculation or design. The jury was not instructed to find appellant unanimously guilty of only one of the alternatives. Appellant claims because of the failure to so instruct the jury, the jury could have found appellant guilty of both components or guilty of a different component for each count of the aggravated murders. Under R.C. 2929.04(A)(7), a defendant may be found to be the principal offender or actual killer in order to impose the death penalty. If not the actual killer, the defendant must be found to have committed the murder with prior calculation and design. The two are alternative provisions and are not to be charged or proven in the same case. State v. Penix (1987), 32 Ohio St.3d 369, 371. Again, appellant never requested the jury be instructed it must reach a unanimous verdict on one alternative or objected to the instruction. Appellant's conviction would be reversed only if it can be determined the outcome of his trial clearly would have been different but for the alleged error. State v. Woodard (1993), 68 Ohio St.3d 70, 75. In its argument during the penalty phase, the state specifi- cally told the jury that the provisions of R.C. 2929.04(A)(7) are stated in the disjunctive. A review of the jury charge reflects - 13 - that the statutory language was repeated to the jury. The trial court never referred to "principal offender" and "prior calculation and design" as separate, independent aggravating circumstances. Cf. Penix, supra. See State v. Williams (1996), 74 Ohio St.3d 569. The jury instructions adequately conveyed to the jury that appellant was to be found guilty of one of the alternatives of R.C. 2929.04(A)(7). The state's theory of the case was that appellant was the principal offender or actual killer. There was no argument otherwise. The evidence presented at trial supported this theory. In his first statement to the police, appellant admitted to shoot- ing Sammour. Both of his co-defendants and the surviving clerk testified appellant committed the murder. While incarcerated, appellant also told a friend he committed the murder. Appellant was the only one armed with a .357 firearm. The physical evidence showed that was the type of weapon fired during the murder and robbery. Appellant had a friend burn his clothing shortly after the offense occurred. The state argued appellant was the principal offender. The evidence admitted at trial strongly supported the state's case. As the jury instructions tracked the statutory language and the state's contention was that appellant was the actual killer, it is clear the jury found appellant to be the principal offender. This was not a patchwork verdict. Appellant also finds error in the trial court's sentencing opinion. It stated in part: - 14 - There is no reasonable doubt that the defen- dant was the principal offender who purposely executed Mustafa Sammour with prior calcula- tion and design in the course of his aggra- vated robbery on September 14, 1994. There is no reasonable doubt as to the defendant's guilt of the Capital Felony Murder specification to consider or weigh. If the trial court did err by weighing both alternatives against appellant's mitigating evidence, there is no reversible error. The trial court found little mitigating evidence in this case. It is unlikely the outcome would have changed if the trial court con- sidered that appellant was the principal offender only without the factor of prior calculation and design. Further, any error that may have occurred would be cured by the independent review and the weighing of the aggravating circumstance and mitigation by this court. Unlike Penix, the jury did not improperly consider both R.C. 2929.04(A)(7) alternatives as separate aggravating circum- stances. Appellant will not be denied his right to have the jury that heard his trial recommend what sentence be imposed. Appel- lant's jury properly considered the R.C. 2929.04(A)(7) specifica- tion. Any possible error by the trial court would be cured by independent appellate review. There is no reason to vacate appel- lant's sentence of death. Appellant's first assignment of error is overruled. III. In his second assignment of error, appellant contends his counsel was ineffective during the penalty phase of his trial. Defense counsel presented no witnesses or evidence in mitigation - 15 - but instead relied on closing argument to present appellant's case in contravention to the imposition of a sentence of death. Appellant argues the failure to present any mitigation evidence created a greater risk of a death penalty sentence being imposed than if mitigation evidence had been offered. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for the counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio St.3d 162. The burden is on the defendant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Judicial scrutiny of counsel's performance must be highly deferential. The defendant must overcome the presumption that, under the circum- stances, the challenged action might be considered sound trial strategy. Strickland, supra, at 689. Hindsight will not be used to distort the assessment of what was reasonable in light of - 16 - counsel's perspective at the time. State v. Cook (1992), 65 Ohio St.3d 516. This includes a counsel's decision not to pursue every possible trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319. After all, the Constitution does not guarantee an error-free trial but only a fair trial and a competent attorney. Engle v. Isaac (1982), 456 U.S. 107, 134. The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. State v. Frazier (1991), 61 Ohio St.3d 247, 254. Appellant first argues his attorney failed in his duty to appellant by not requesting a psychiatric evaluation. When asked by the trial court if an evaluation should be ordered, appellant's attorney replied in the negative stating nothing was psychiatri- cally wrong with appellant. Appellant contends his counsel was not qualified to make this determination and that such an evaluation could have provided useful information regarding appellant's intelligence, social history and the effects of certain traumatic events in appellant's childhood. A report may also have suggested other avenues for counsel to investigate for mitigation purposes. No witnesses testified on appellant's behalf at the penalty phase of his trial. Appellant's counsel informed the trial judge that they had thoroughly prepared and evaluated the case. Counsel had spoken with appellant's family. Trial counsel determined it would be problematic for appellant's defense to present any - 17 - evidence because it would risk the door being opened for otherwise inadmissible and very negative evidence being presented by the state. Some of that evidence was appellant's five prior aggravated robbery offenses. Counsel stated the calculated decision to proceed with only closing argument had been thoroughly discussed with appellant. In counsel's judgment, the decision enhanced appellant's chance of receiving a life sentence. The decision of whether to request a pre-sentence report or a mental evaluation generally is considered to be one falling within the realm of sound trial strategy. See State v. Williams (1991), 74 Ohio App.3d 686. Copies of any pre-sentence investigation or mental examination report would be provided to the trial court, the prosecutor, and the jury. R.C. 2929.03(D). Therefore, any information damaging to appellant would have been available for the prosecution's use against appellant and for the jury's consideration. Appellant's counsel was familiar with appellant and averred his case was evaluated. There is no evidence the result of the trial would have been different had counsel requested a mental evaluation. The mere failure to present mitigating evidence at the penalty phase of a capital trial does not itself constitute proof of ineffective assistance of counsel or deprive a defendant of a fair trial. This may be the result of a tactical, informed decision by counsel. State v. Johnson (1986), 24 Ohio St.3d 87. A defense counsel has a duty to investigate his client's background for miti- - 18 - gating factors. An utter lack of informed, calculated decision- making by defense counsel is an abdication of the attorney's duty to his client. Id. The evidence in the instant case reflects appellant's counsel did investigate appellant's background and made a calculated decision not to present evidence. This decision is one of trial tactics and will not be disturbed upon appeal. Appel- lant has not met his burden to show his counsel's performance was deficient. See State v. Hutton (1990), 53 Ohio St.3d 36. Trial counsel decided to focus on argument in an attempt to sway the jury to vote for a life sentence. The specter of residual doubt as to appellant's identity as the actual killer was raised. This is a proper subject for consideration in mitigation. State v. Gillard (1988), 40 Ohio St.3d 226, 234. Counsel further focused on the relatively light sentences which Johnson and Padgett would receive and asked the jury for proportionality when sentencing appellant. This may have been appellant's best argument for mitigation. Counsel disregarded appellant's age in argument. While this may be a questionable tactic as age is a statutory mitigating factor, it was not prejudicial as the trial court instructed the jury that appellant's age of nineteen was to be considered. Appellant's attorney also informed the jury that no psychologist or social worker would testify in appellant's behalf because counsel did not believe the issue was to be decided on whether appellant had as good a chance in life as anyone else. Although this again - 19 - may be a debatable tactic, appellant had experienced counsel who made strategic decisions which will not be second-guessed on appeal without a further showing of prejudice. Appellant argues there was mitigation evidence to be presented including his drug-dependent birth, mental abuse by his mother, and some sort of physical problem with the development of his intes- tines at birth. However, counsel averred they did investigate appellant's background and thought it best not to present witnesses on appellant's behalf due to other information which could have been revealed. Aside from the prior aggravated robberies, it is unknown what other damaging information existed in order to evaluate prejudice. Counsel made a tactical decision. Appellant argues trial counsel should have asked the trial court to instruct the jury that only one aggravating circumstance be weighed and that the jury could not weigh both components of R.C. 2929.04(A)(7). It already has been determined the trial court's instruction regarding R.C. 2929.04(A)(7) was not erroneous. Any error in the trial court's instruction on the aggravating circumstance was cured by the trial court's independent weighing of the aggravating circumstance against mitigating factors. Further, there was little evidence in mitigation to weigh against the aggravating circumstance. It is unlikely the result of the trial would have been different if the correct instruction was given. Appellant also asserts his counsel should have objected to statements made by the prosecutor during closing arguments. The - 20 - failure to object alone is not enough to sustain a claim of ineffective assistance of counsel. Objections tend to disrupt the flow of a trial and can be considered technical and bothersome to a jury. State v. Campbell (1994), 69 Ohio St.3d 38. The failure to object to the state's argument was not prejudicial to appellant. Appellant failed to meet his burden to establish his counsel's performance was deficient or that his defense was prejudiced during the penalty phase of the trial. Appellant's second assignment of error is overruled. IV. Appellant's third assignment of error asserts that his counsel did not provide appellant with effective assistance of counsel during the guilt phase of his trial. Appellant argues defense counsel made stipulations of fact which had the result of relieving the prosecution of its burden of proof. Appellant contends counsel should have challenged his Miranda rights, the legitimacy of the police line-up, and the qualifications of the coroner. However, a defense attorney is not required to raise meritless issues. State v. Hill (1996), 75 Ohio St.3d 195. There is absolutely no evidence there was any Miranda issue or problem with the way the line-up was conducted. There was no dispute appellant was involved in the robbery of the Big Star Market. The coroner was well-qualified to be an expert witness. There is nothing in the record to suggest that the stipulations were anything but sound trial strategy. - 21 - Appellant maintains the trial court's instruction on aiding and abetting and both sides' arguments on the subject led the jury to believe it had no option but to convict appellant of the death penalty specifications even if it believed appellant was not the actual shooter. However, the prosecution only pursued the theory that appellant was the killer and not one of his co-defendants. There was overwhelming evidence appellant committed the murder. Clearer instructions on aiding and abetting which differentiated between the proof required for the count versus the specification would not have made a difference in the verdict. Appellant also argues his attorneys were ineffective for failing to assure a complete record was made of his trial including all bench conferences and pre-trial hearings. Without knowing what occurred during these sidebar conferences and pre-trial hearings, this court cannot find prejudicial error in the failure to record them. Accord State v. Tyler (1990), 50 Ohio St.3d 24. None of the instances complained of by appellant rise to the level of a deprivation of effective counsel. There was not a breakdown of the adversarial process which rendered the result of appellant's trial unreliable. Appellant's third assignment of error is overruled. - 22 - V. In his fourth assignment of error, appellant contends prosecutorial misconduct denied him a fair trial. Appellant asserts the prosecutor's references throughout the trial to the victim's good character encouraged the jury to consider improper evidence during its deliberation. Appellant argues that the introduction of Mustafa Sammour's character by the prosecutor was inflammatory, prejudicial and used to evoke sympathy and rage in the jury. Because the argument encouraged the jury to convict based on their emotional reaction to the crime, it became a non- statutory aggravating circumstance which should not have been weighed against appellant's mitigation evidence. Appellant did not object to any of the arguments, questions, or comments by the prosecutor which he now claims denied him a fair trial. "A claim of error in a criminal case cannot be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny a defendant a fair trial." State v. Wade (1978), 53 Ohio St.2d 182, paragraph one of the syllabus. Any claim of error is waived and will be reviewed only for plain error. Crim.R. 52(B). Notice of plain error is taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Landrum (1990), 53 Ohio St.3d 107, 111. A prosecuting attorney's conduct during trial does not constitute a ground for error unless the conduct deprives the - 23 - defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. "[T]he 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. The effect of the prosecutor's alleged mis- conduct must be considered in light of the whole trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266. Most of the remarks to which appellant objects occurred during closing argument. The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. A prosecutor is afforded wide latitude in closing arguments. State v. Jacks (1989), 63 Ohio App.3d 200, 210. It is within the trial court's sound discretion to determine if a prosecutor has gone beyond the bounds permitted. State v. Benge (1996), 75 Ohio St.3d 136. A judgment will not be reversed if it is clear beyond a reasonable doubt that, absent the prosecutor's remarks, the jury would have found the defendant guilty. State v. Loza (1994), 71 Ohio St.3d 61, 78. In State v. Frazier (1995), 73 Ohio St.3d 323, the prosecutor referred to the victim as a young, innocent girl and a loving, caring individual although no character evidence regarding the victim was offered. The court found the remarks to be intemperate but no so prejudicial as to deprive the defendant of a fair trial. - 24 - In the instant case, there was limited testimony that some customers never had a problem with Mustafa Sammour. During closing argument, the prosecutor described Sammour as a decent, hardworking man. However, this was but a small part of the prosecutor's argument which primarily focused on the facts and evidence of the case. There was no argument that the character of the victim or the facts and circumstances of the murder were aggravating circumstances to be weighed against mitigation. Cf. State v. Gumm (1995), 73 Ohio St.3d 143. During closing argument, the prosecutor accurately stated what the aggravating circumstance was and did not mislead the jury. Although the prosecutor should not have commented on Mustafa Sammour's good character, the appellant was not deprived of a fair trial as the remarks did not prejudicially affect his substantial rights. Appellant next argues the prosecutor denied appellant his due process rights by interjecting victim-impact evidence into the trial. During closing argument, the prosecutor stated that Mustafa Sammour suffered before he died. The prosecutor further remarked that Sammour's family sustained a loss due to Sammour's death. The remark by the prosecutor that Mustafa Sammour suffered before his death was in response to defense counsel's statement that Sammour had not suffered as he was killed instantly. Both the state and defense have latitude in responding to the arguments of opposing counsel. Loza, supra, at 78. Further, appellant did not object. A review of the entire record indicates appellant was not - 25 - deprived of a fair trial due to the prosecutor's statement in response to defense counsel's argument. In argument, the state should not have brought up the pain suffered by the victim's family. Victim-impact statements generally should not be interjected into capital sentencing considerations. State v. Greer (1988), 39 Ohio St.3d 236, 251. As in Greer, the prosecutor did not introduce victim-impact evidence which directly quoted family members and the statement was brief. Therefore, the error did not rise to the level of prejudicial impact. Appellant argues the prosecutor committed reversible error by referring to matters allegedly within his personal knowledge and by bolstering the testimony of appellant's co-defendants. Appellant objects to the prosecutor's statement appellant deserved the death penalty because he was the actual shooter. Appellant contends whether he was the shooter was a factual issue to be decided by the jury, yet the prosecutor presented it as an issue which already had been determined by the state. Prosecutors should not express their personal beliefs or opinions regarding a defendant's guilt. They are not to allude to matters not supported by admissible evidence. State v. Lott (1990), 51 Ohio St.3d 160, 166. However, a prosecutor may express his personal opinion about the guilt of the accused if that opinion is based on evidence presented at trial. State v. Keenan (1993), 66 Ohio St.3d 402, 408. Even unobjected to references to matters - 26 - outside the record have been found to not constitute prejudicial error if the references are short, oblique, and justified as a reply to defense arguments. Lott, supra. The foundation of the state's case against appellant was that appellant shot Mustafa Sammour. Ample evidence supported that theory. The defense sought to cast doubt on the state's case by arguing either Johnson or Padgett was the actual shooter and not appellant. The prosecutor's statement that Johnson and Padgett were allowed to plead to a lesser offense because neither was the killer was a response to defense arguments and based on evidence admitted at trial. No prejudicial error occurred. Appellant lastly contends the state bolstered the testimony of Johnson and Padgett by declaring in opening statement that the two were allowed to plead in exchange for their truthful, forthright testimony at appellant's trial. In response to a question by the prosecutor, Padgett testified he would tell the truth. A prosecutor can bolster his own witnesses by stating the evidence will show the witnesses were truthful. The prosecutor may not say he believes the witnesses by personally vouching for the integrity of the state's witnesses. State v. Daughn (1992), 76 Ohio App.3d 664, 670. If such remarks do occur, a judgment will be reversed only if the defendant is deprived of a fair trial due to the statements. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. In State v. Woodard (1993), 68 Ohio St.3d 79, the prosecutor's final argument in the penalty phase included the statement that a - 27 - witness would not have been allowed to plead to a straight murder if the witness had been the trigger man. The court considered this a response to the defendant's unsworn statement that the witness was the killer. The court further found no prejudicial error from the remark. In the instant case, the prosecutor elicited the terms of the plea bargain from his witness but did not state either Johnson or Padgett was telling the truth. The trial court instructed the jury how to view the testimony of accomplices. It is presumed the jury followed the instructions given to it by the trial court. Loza, supra at 79. Defense counsel was quite skillful in pointing out inconsistencies in the testimony of the co-defendants and in casting doubt upon the reliability of their testimony. The prosecutor's conduct did not deprive appellant of a fair trial. Appellant was not prejudiced. Appellant's fourth assignment of error is overruled. VI. In his fifth assignment of error, appellant contends appellate review is precluded as the record is incomplete. Appellant avers twenty-seven bench conferences, eight pretrial hearings and the written jury instructions are missing from the record before this court. A motion to correct the record was filed with the trial court pursuant to App.R. 9(E). A defendant in a capital murder case is to be given a complete, full, and unabridged transcript of all of the proceedings - 28 - which occur at the trial level. State ex rel. Spirko v. Court of Appeals (1986), 27 Ohio St.3d 13. This holding was predicated upon the court's conclusion that unless a complete transcript was provided, the defendant cannot prosecute an effective appeal from his conviction. In support of this holding, the court further emphasized that without a complete transcript, neither it nor an appellate court can independently reweigh the aggravating and mitigating evidence as required by R.C. 2929.05. Id. However, even though this requirement is constitutionally mandated, the failure to provide a complete transcript does not always deny a defendant an effective appeal. In State v. DePew (1988), 38 Ohio St.3d 275, parts of the proceedings could not be transcribed because the tapes were inaudible. Upon noting that the defendant only had maintained that the missing information might be vital to his case, the court held that the failure to provide the entire transcript was not prejudicial because there was no indication that effective appellate review had been denied as a result of the omissions. In the instant case, the trial court denied appellant's App.R. 9(E) motion to correct the record. In its journal entry, the trial court stated: All motions on the defense requested rulings received same and were made a part of the record in open court prior to trial. Side bar conferences regarding legal issues were recorded as opposed to those concerning procedural matters. The written jury instructions are available to the State Public Defenders' Office through the Court Reporters' - 29 - office, complete with markings made by the jury. Where a party seeks to have the record corrected, it is within the province of the trial court to resolve disputes about the record on appeal. State v. Schiebel (1990), 55 Ohio St.3d 71, 81. An appellate court will not reverse a trial court's decision concerning correction of the record absent an abuse of discretion. Id., at 82. The trial court's ruling adequately addressed appellant's concerns regarding the record. The trial court found that all rulings on legal issues were made a part of the record. Appellant really has only made the general assertion that the missing discussions possibly could be a source of information that might lead to issues being raised on appeal. The trial court stated all pertinent rulings are a part of the record. Further, this court has carefully reviewed the record before it and finds it adequate for review and to permit an independent reweighing of the aggravating circumstances against mitigation evidence. Appellant's fifth assignment of error is overruled. VII. In his sixth assignment of error, appellant contends his trial counsel was ineffective during voir dire. Appellant argues his attorney should have used voir dire to explore the feelings of prospective jurors to the death penalty and mitigation evidence. Appellant points out his counsel failed to ask any questions of most of those who eventually sat on the jury or to question some of - 30 - the prospective jurors who seemed to strongly support the use of the death penalty. To show ineffective assistance of counsel, a defendant must show his attorney's performance was deficient due to errors so serious the attorney was not functioning as the counsel guaranteed a defendant by the Sixth Amendment. The defendant must then show his counsel's errors were so serious it resulted in depriving the defendant of a fair trial or one for which the result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 687. It is presumed that a properly licensed attorney executes his duty in an ethical and competent manner. The burden of establishing otherwise rests on the defendant. State v. Smith (1985), 17 Ohio St.3d 98. In a capital case, the scruples, attitudes, and opinions of the prospective jurors regarding capital punishment should be brought out during voir dire. This is because the beliefs concerning capital punishment held by many individuals may prevent them from fairly and impartially applying the law to the facts of the case. These attitudes, both for and opposed to the death penalty, might prevent a fair and impartial adjudication of guilt or innocence. State v. Lockett (1976), 49 Ohio St.2d 48, 56. Both the trial court and respective counsel should conduct the inquiry. Appellant's primary concern is that his attorney did not ask many jurors questions about the death penalty. A review of the record reveals the jurors adequately expressed their viewpoints regarding capital punishment through questioning by the trial judge - 31 - and the prosecutor. Defense counsel need not repeat questions about topics already covered by group voir dire, opposing counsel or the judge. State v. Watson (1991), 61 Ohio St.3d 1, 13; State v. Seiber (1990), 56 Ohio St.3d 4, 12. None of the jurors' responses indicated he would automatically vote for the death penalty but that he would follow the law. Each stated he would vote for a life sentence if required to do so by law. The conduct of voir dire by defense counsel does not have to take a particular form, nor do specific questions have to be asked. State v. Evans (1992), 63 Ohio St.3d 231, 247. Asking "yes" or "no" questions, not questioning certain prospective jurors or asking too few questions of others falls within the wide range of reasonable professional assistance. State v. Bradley (1989), 42 Ohio St.3d 136. Trial counsel is better able to determine which members of the venire merit in-depth examination than a reviewing court. State v. Phillips (1995), 74 Ohio St.3d 72, 86. Just because defense counsel did not question all of the prospective jurors regarding the death penalty does not mean appellant was denied effective assistance. After all, a juror's death-penalty views will lead to exclusion only if the beliefs prevent or substantially impair that juror's ability to follow the law. Morgan v. Illinois (1992), 504 U.S. 719, 728. The trial court's questioning adequately determined the issue. A defense attorney is under no obligation to "educate" the venire about capital - 32 - punishment and hardly fails to function as the counsel guaranteed by the Constitution by not doing so. Appellant further argues careful questioning by defense counsel was necessary to effectively exercise peremptory challenges. All of those who eventually comprised the jury in the instant case stated they could set aside their personal feelings regarding the death penalty and apply the law. Defense counsel did utilize one peremptory challenge. There is no indication defense counsel's performance was so deficient as to deprive appellant of a fair trial. All of the jurors understood through questioning by the trial judge, the prosecutor and defense counsel that the death penalty only could be imposed by following the law. The law requires weighing any aggravating circumstances against mitigation. A trial court need not even permit specific mitigation questions. See State v. Bedford (1988), 39 Ohio St.3d 122, 129. Asking questions relating to mitigation is not essential to rendering competent representation. Phillips, supra. A review of the record fails to reflect appellant received ineffective assistance of counsel during voir dire. Appellant's sixth assignment of error is not well taken. VIII. Appellant's seventh assignment of error asserts certain errors committed during voir dire led to the lack of assurance that a fair and impartial jury was seated in his trial. Appellant challenges the prosecutor's use of peremptory challenges to remove three - 33 - potential jurors who expressed reservations about the death penalty. The practice of using peremptory challenges to remove prospective jurors opposed to the death penalty is proper. State v. Esparza (1988), 39 Ohio St.3d 8. Apart from excluding jurors based on race or gender, prosecutors can exercise a peremptory challenge for any reason, without inquiry, and without a court's control. State v. Brooks (1996), 75 Ohio St.3d 148. Appellant argues comments made by the prosecutor were prejudicial. The prosecutor asked two jurors to assume appellant was found guilty. In both cases, the prosecutor then asked the prospective jurors about their feelings regarding the death penalty. There was no inference appellant actually was guilty. The trial court asked each potential juror similar questions, stressing the questions merely were hypothetical and routinely asked in a capital case. The venire was told not to presume there would be a second phase of the trial. The statements by the prosecutor just continued this same line of questioning in an attempt to discover the attitudes of the prospective jurors toward capital punishment. Appellant finally argues his counsel was ineffective for failing to use peremptory challenges to remove two jurors. The first indicated she had a problem seeing blood and did not know if she could look at the photographs which might be admitted at trial. During voir dire, this juror first stated she would have problems with seeing blood. Under questioning by the state, the - 34 - juror stated that someone bleeding in her presence caused an adverse affect but did not know if the same would be true of viewing photographs. The state made a motion to excuse this juror for cause. The defense opposed the motion regarding it as premature as no pictures had been presented yet. This may be considered to be sound trial strategy which is given deferential treatment by a reviewing court. State v. Braxton (1995), 102 Ohio App.3d 28. Appellant has not demonstrated prejudice. There is no indication or evidence this juror did not fairly consider all of the evidence admitted at trial. Appellant also objects to the seating of a juror whose daughter had been molested. Appellant states this juror was predisposed to favor the death penalty and was biased toward the imposition of harsh penalties. In State v. Allen (1995), 73 Ohio St.3d 626, the defendant argued the trial court erred by not excusing a juror for cause whose brother had been murdered. The juror admitted to some bitterness but said she could set her feelings aside and base her vote on the evidence. The decision not to excuse the juror for cause was upheld as the juror's testimony supported the trial court's ruling that the juror was unbiased. In the instant case, the juror indicated he favored the death penalty but would vote for life imprisonment if the decision was the correct one. The juror would look at the criteria to see what penalty should be imposed. The juror's daughter, then aged three - 35 - years, was molested by a neighbor. The man served eleven months after pleading guilty. The juror stated he was not bitter at the justice system but was dissatisfied the man served so little time. The juror averred the incident would not influence his ability to serve on appellant's case. There was adequate reassurance this juror would not impose the death penalty in contravention to the law. The juror was thoroughly questioned regarding the crime committed against his daughter. A juror who favors the death penalty does not render a verdict which necessarily is unfair to a defendant. The juror stated several times he would follow the law. Appellant was not prejudiced by the juror's inclusion on the jury. Appellant's seventh assignment of error is overruled. IX. In his eighth assignment of error, appellant argues that the prosecution's introduction of photographs of the crime scene and autopsy were so gruesome and cumulative that any probative value was outweighed by unfair prejudice to the accused. This argument is without merit. "Under Evid.R. 403 and 611(A), the admission of photographic evidence is left to the discretion of the trial court." State v. Frazier (1995), 73 Ohio St.3d 323, 333, citing State v. Maurer (1984), 15 Ohio St.3d 239, 264. "'Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the - 36 - trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.'" Id., citing Maurer, supra at paragraph seven of the syllabus. As the Supreme Court stated in Maurer, "the fact that appellant stipulated the cause of death does not automatically render the photographs inadmissible." Id. at 265. Additionally, "relevant evidence, challenged as being outweighed by its prejudicial effects, should be viewed in a light most favorable to the proponent of the evidence, maximizing its probative value and minimizing any prejudicial effect to one opposing admission." Id., citing United States v. Brady (C.A.6, 1979), 595 F.2d 359. As previously stated, "[i]t is well settled * * * that the determination of whether photographs meet the test for admissi- bility rests within the sound discretion of the trial court." State v. Phillips (1995), 74 Ohio St.3d 72, 77, citing State v. Slagle (1992), 65 Ohio St.3d 597, 601. Thus, the trial court has broad discretion in the admission of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, a reviewing court should be slow to interfere. Maurer, supra at 265. In the case sub judice, four photographs of the crime scene were admitted into evidence. Three of the four photographs, each being very similar, show the victim's body as it appeared on the - 37 - store floor after being shot. Therefore, two of the photographs are cumulative and admission of both photographs was erroneous on that basis. However, notwithstanding the cumulative nature of these photographs, overwhelming evidence demonstrating appellant's guilt was presented at trial. The jury would have convicted the appellant even if the cumulative photographs had not been shown. See State v. Taylor (November 9, 1995), Cuyahoga App. No. 65711, unreported. The court's error was harmless beyond a reasonable doubt. In addition to the crime scene photographs, three autopsy photographs were entered into evidence to corroborate the expert testimony of the coroner. These photographs are indeed gruesome since they depict the homicide caused by the bullet wound. The photographs show the victim's head and detail the bullet hole and the victim's collapsed left eye, as well as the path which the bullet took once it entered the victim's head. None of the autopsy photographs admitted into evidence, however, were cumulative or repetitive. The Supreme Court has held that "'the state must prove, and the jury must find, that the killing was purposely done. The number of shots fired, the places where the bullets entered the body, and the resulting wounds are all probative evidence of a purpose to cause death. * * * '" Maurer, supra at 265, citing State v. Strodes (1976), 48 Ohio St.2d 113, 116. The total - 38 - probative value of the autopsy photographs was not outweighed by the danger of prejudicial effect upon the appellant. Appellant's eighth assignment of error is overruled. X. In his ninth assignment of error, appellant asserts his sentence of death is unreliable because the trial court asked for victim-impact evidence in which the victim's brother requested the trial court impose the death penalty. It is error for a trial court to admit victim-impact statements which relate to sentencing recommendations. State v. Fautenberry (1995), 72 Ohio St.3d 435. As appellant did not object to the statements, the plain error rule again must be applied. In State v. Allard (1996), 75 Ohio St.3d 482, a similar situation to the instant case occurred. The trial court considered two letters regarding the effect of the victim's death on his family, one of which stated death was the only appropriate sentence for the defendant. There was no indication the trial court was influenced by or specifically relied on the recommendation when sentencing the defendant to death. The Supreme Court of Ohio pointed out that to establish plain error, the defendant must be able to demonstrate that, but for the victim impact statements, the trial judge would have imposed a sentence of life imprisonment. The trial court found the aggravating circumstance outweighed the mitigation evidence without the victim impact statement being a factor. - 39 - In the instant case, the trial court did state it would consider what the victim's family had to say regarding Mustafa Sammour when sentencing appellant. However, the sentencing opinion reflects no influence or reliance on the victim impact statement. There is no indication that the trial court would have sentenced appellant to a life term but for this statement. Appellant's ninth assignment of error is meritless. XI. In his tenth assignment of error, appellant contends the state produced insufficient evidence to prove the element of prior calculation and design beyond a reasonable doubt. Appellant points out that both of his co-defendants testified that, while the three men planned to rob the Big Star Market, there was no discussion regarding killing or harming any of the store's employees. Johnson testified appellant said he did not mean to shoot Mustafa Sammour. Appellant's first statement to the police reflected he did not intend to shoot the clerk. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 6l Ohio St.3d 259. The essential elements of aggravated murder are that a person (1) purposefully, (2) with prior calculation and design, (3) causes the death of another. - 40 - R.C. 2903.01. Appellant contends there was not sufficient evidence to show prior calculation and design. The statute does not define "prior calculation and design." In State v. Cotton (1978), 56 Ohio St.2d 8, the court held that instantaneous deliberation is not sufficient to constitute prior calculation and design. Id., paragraph two of the syllabus. The phrase requires more than a few moments of deliberation. Id. at 11. The evidence admitted at trial must reveal the presence of sufficient time and opportunity to plan the homicide and the circumstances show a scheme designed to implement the calculated design to kill. Id., paragraph three of the syllabus. It is not required that a prolonged thought process be present. Even when a defendant only has instants to design the death of the victim, it will be sufficient. State v. Bailey (1992), 90 Ohio App.3d 58, 73. A momentary deliberation is insufficient although neither the length of time nor degree of care are critical factors. State v. D'Ambrosio (1993), 67 Ohio St.3d 185. There is no bright-line test that distinguishes between the presence or absence of prior calcu- lation and design. Each case turns on the particular facts and evidence presented at trial. State v. Taylor (1997), 78 Ohio St.3d 15, 20. In State v. Jenkins (1976), 48 Ohio App.2d 99, this court set forth some factors to be considered when assessing whether sufficient evidence of prior calculation and design are present. The factors are whether the accused knew the victim prior to the - 41 - crime, as opposed to a random meeting; whether thought and preparation were given by the accused to the weapon used in the killing or where the site of the homicide was to occur; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. Id. at 102. There was little evidence appellant knew the victim aside from appellant having previously shopped in the store. However, this was not a random meeting as appellant chose to rob the Big Star Market. It was appellant who conceived of the robbery plan and then recruited others to join him in the crime. Appellant armed himself with a loaded .357 revolver which he recently had illegally purchased. Appellant picked the site of the crime. Appellant essentially argues the shooting was an accident or at least unintended and not planned out over a period of time. The evidence adduced at trial showed appellant placed his armed weapon snugly against the forehead of an unresisting victim who stood with his arms raised above his head. Appellant then pulled the trigger, killing Mustafa Sammour instantly. Appellant showed no shock or remorse over the shooting he supposedly did not expect. Instead, he grabbed Mustafa's cousin and, once again, placed his loaded revolver to his victim's head while screaming for Almohanned Ismail Sammour to take him to where the money was. While Sammour was removing money from the store's safe, appellant fired a second shot into the floor. Appellant then directed Sammour to go to the lottery machine. Only the arrival of the milk delivery truck - 42 - interrupted appellant from continuing the robbery. Appellant admitted to police that before he ran out the door, appellant took some more money from the open cash register drawer above where Mustafa Sammour lay dead on the floor. Although Johnson and Padgett testified there was no plan to shoot anyone at the store, both tried to downplay their own involvement in the incident. Johnson initially denied having a weapon or receiving any of the money stolen from the store. Padgett also lied about receiving his share of the day's proceeds. Appellant allegedly told Johnson he did not mean to shoot Mustafa Sammour. Yet Padgett testified appellant said he shot the victim because Sammour reached for appellant's mask and appellant thought Sammour saw his face. This implies purpose. In this case, appellant's actions speak louder than his statement regarding his lack of intent made to the police. According to appellant's police statement, his .357 revolver went off twice unexpectedly in a matter of minutes. This defies belief. Appellant intentionally placed his loaded weapon to Sammour's head and pulled the trigger. Appellant's actions subsequent to this act do not show any surprise or shock at the shooting. He continued on with the robbery and intimidated the second clerk into compliance by again firing his weapon. There was no evidence of an instantaneous eruption of events but rather sufficient evidence of a cold-blooded murder in which appellant held his victim's life in cheap regard. Appellant planned the robbery and the murder was - 43 - used to further his plans. The state submitted sufficient evidence to prove prior calculation and design. Appellant's tenth assignment of error is overruled. XII. In his eleventh assignment of error, appellant asserts he was denied a fair trial due to erroneous jury instructions during both the guilt and penalty phases of his trial. Appellant first challenges the statutory definition of reasonable doubt with which the trial court instructed the jury as being constitutionally infirm under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In State v. Nabozny (1978), 54 Ohio St.2d 195, paragraph two of the syllabus, the court held: The definition of "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. Subsequently, the Supreme Court of Ohio has upheld the holding of Nabozny. See State v. Frazier (1995), 73 Ohio St.3d 323; State v. Van Gundy (1992), 64 Ohio St.3d 230; State v. Maurer (1984), 15 Ohio St.3d 239; and State v. Jenkins (1984), 15 Ohio St.3d 164. The trial court's definition of "reasonable doubt" was constitu- tionally correct. Appellant next argues the trial court's instruction regarding "cause" and "foreseeability" was error as it conveyed to the jury that it could convict by applying a negligence standard. Appellant - 44 - contends this instruction negated the necessity to convict after a finding of specific intent to cause the death of another. Appellant objects to the following portion of the jury charge: Cause is an essential element of the offense charged. The State charges that the act of the defendant caused the death of Mustafa Sammour. Cause is an act or failure to act which in the natural and continuous sequence directly produces the death of a person and without which it would not have occurred. Cause occurs when the death is the natural and foreseeable result of the act or failure to act. A death is the result of an act or failure to act when it is produced directly by the act or failure to act in a natural and continuous sequence, and would not have occurred without it. Result occurs when the death is naturally and foreseeable caused by the act. The causal responsibility of the defendant for an unlawful act is not limited to its immedi- ate or most obvious result. He is responsible for the natural, logical and foreseeable results that follow in the ordinary course of events from an unlawful act. Foreseeability. Now, that's another term used. The test for foreseeability is not whether the defendant should have foreseen the injury in its precise form or as to a specific person. The test is whether a prudent reasonably prudent person, in the light of all the circumstances, would have anticipated that death was likely to result to anyone from the performance of the unlawful act. (Tr. 1471-72). According to appellant, the last two paragraphs undermine the specific intent to kill mens rea which is required for aggravated murder. Appellant never objected to any of the instructions as required by Crim.R. 30(A). Therefore, he must show that the - 45 - trial's outcome clearly would have been different but for the alleged errors. State v. Campbell (1994), 69 Ohio St.3d 38. This same instruction was addressed in State v. Burchfield (1993), 66 Ohio St.3d 261. A jury instruction must be viewed in the context of the entire charge and not in isolation. State v. Thompson (1987), 33 Ohio St.3d 1, 13. The Burchfield court considered the entire charge and found extensive instructions regarding purpose were relayed prior to the causation instruction. The court noted that the usefulness of the foreseeability instruction was question- able and should only be used cautiously. However, after consider- ing the entire charge, the court determined it was clear the jury understood it had to determine the defendant intended to kill. See also State v. Phillips (1995), 74 Ohio St.3d 72. A review of the entire jury charge reveals extensive instruc- tions on purpose, specific intent, and the use of a deadly weapon. The instructions adequately conveyed to the jury that it had to find appellant had the specific intent to kill. Appellant additionally objects to the trial court's definition of "principal offender" under the R.C. 2929.04(A)(7) specification. The trial court stated: The term, principal offender, means the one who personally performs every act constituting the offense, in this case, aggravated murder; that the defendant is the actor or absolute perpetrator, that is, that Michael Goodwin's conduct directly produced the death of Mustafa Sammour. - 46 - (Tr. 1476). Appellant argues this instruction permitted the jury to convict him on a lesser standard as R.C. 2929.04(A)(7) requires proof he was the actual killer. The trial court's definition was that appellant had to be the one who personally performed every act constituting the offense of murder and that appellant had to be the absolute perpetrator. This is virtually the same as stating the jury had to find appellant was the actual killer. The jury instruction was correct under R.C. 2929.04(A)(7). Finally, appellant argues the trial court denied him a fair trial by refusing to include an instruction on the lesser included offense of murder. To support his contention, appellant falls back on his argument that the state failed to present evidence of prior calculation and design as required under Count One. It already has been determined that the state presented sufficient evidence to support the element of prior calculation and design. Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial could reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus. If the evidence presented at trial meets this test with regard to the lesser included offense, the trial court must instruct the jury on the lesser offense. State v. Loudermill (1965), 2 Ohio St.2d 79. If the test is not met, the lesser included offense charge need not be given. State v. Kidder (1987), - 47 - 32 Ohio St.3d 279. An instruction is not required every time some evidence is presented. There must be sufficient evidence admitted at trial to allow the jury to reasonably reject the greater offense and find the defendant guilty on the lesser included offense. State v. Shane (1992), 63 Ohio St.3d 630. Murder is a lesser included offense of aggravated murder. State v. Bailey (1992), 90 Ohio App.3d 58. Murder is defined as purposely causing the death of another. R.C. 2903.02. The element of prior calculation and design is the sole difference between aggravated murder (R.C. 2903.01(A)) and murder. There was sufficient evidence presented by the state to support the element of prior calculation and design. The jury would not have reasonably rejected the greater offense to find appellant guilty of murder. Additionally, appellant was convicted of another count of aggravated murder under R.C. 2903.01(B) for which even the defendant admits no instruction on murder was required. Appellant argues this does not result in the failure to give the murder instruction for the R.C. 2903.01(A) count as amounting to harmless error. Appellant asserts having a finding of guilty to two counts of aggravated murder may have had a significant impact on the jury's verdict and sentencing recommendation. Appellant's contention that the jury would not have returned a recommendation of death if appellant was convicted of only one count of aggravated murder is pure speculation. Additionally, if there was any error - 48 - with regard to sentencing, this court's independent review would cure the error. Appellant also contends his counsel was ineffective for failing to object to the instructional errors. Failure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45. A review of the entire instruction fails to reflect there was a reasonable probability that, but for the failure to object, the result of the proceeding would have been different. Strickland, supra. Appellant's eleventh assignment of error is overruled. XIII. Appellant's twelfth assignment of error is that the trial court erred by not instructing the jury regarding the lesser included offense of involuntary manslaughter. Appellant argues the jury could have reasonably found he did not purposely kill Mustafa Sammour during the commission of an aggravated robbery but could have reasonably found the victim was killed as the proximate result of the aggravated robbery. Appellant points to the evidence in his statement that the gun just went off and that his intent was not to shoot Sammour. There also was evidence appellant drank some gin that morning and felt it a little. Involuntary manslaughter is a lesser included offense of aggravated murder. State v. Thomas (1988), 40 Ohio St.3d 213, paragraph one of the syllabus. The difference between the two is - 49 - that aggravated murder requires a purpose to kill. Involuntary manslaughter only requires a killing as a proximate result of a felony. State v. Jenkins (1984), 15 Ohio St.3d 164, 218. A person acts purposefully when he specifically intends to cause a certain result. A person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts. A homicide is a natural and probable consequence of using an inherently dangerous instrumentality during the commission of a felony. Thomas, supra, at 217. Appellant placed a loaded revolver against his victim's forehead. Although in his statement, appellant said the gun just went off, he also stated the gun just happened to fire again a few minutes later. The likelihood of appellant's weapon accidentally firing twice within a matter of minutes is slight. Appellant used an inherently dangerous instrumentality in committing aggravated robbery and it must be presumed he intended the natural consequence of the use of that instrumentality. Appellant points to his statement to Johnson that he did not intend to kill Sammour. Appellant does not mention the evidence that he told Padgett he shot Sammour because Sammour reached for appellant's hat. This statement shows intent. It cannot be ignored that appellant placed a loaded weapon to Mustafa Sammour's head and killed Sammour. Immediately after the murder, appellant then placed his firearm to the head of the second - 50 - clerk and later fired a second shot into the floor of the store. All of this evidence points to purpose. The trial court did not err in failing to give an involuntary manslaughter instruction. Appellant's twelfth assignment of error lacks merit. XIV. In his thirteenth assignment of error, appellant maintains his death sentence is excessively disproportionate to the sentences received by his two co-defendants. Appellant asserts that the imposition of the death sentence for him while Johnson and Padgett received lesser sentences is an arbitrary and capricious use of capital punishment. This argument was rejected in State v. Eley (1996), 77 Ohio St.3rd 174, in which the court held: "[D]isparity of treatment between accomplices does not justify reversal of a death sentence where the sentence is neither illegal nor an abuse of discretion." Id. at 185. There is no reason to vacate appellant's sentence because his accomplices received lesser punishment. Appellant again argues he did not receive effective assistance of counsel resulting in an inappropriate sentence of death. These issues already were addressed in assignment of error two. Appellant's thirteenth assignment of error is meritless. XV. Appellant's fourteenth assignment of error raises a number of challenges to the constitutionality of Ohio's death penalty - 51 - statute. If the merits of a question of law in a capital murder case have previously been addressed by the Supreme Court of Ohio, it is not necessary to fully consider the question in a subsequent case. State v. Poindexter (1988), 36 Ohio St.3d 1, syllabus. Appellant's arguments have been addressed and determined by that court. State v. Nabozny (1978), 54 Ohio St.2d 195; State v. Jenkins (1984), 15 Ohio St.3d 164; State v. Maurer (1984), 15 Ohio St.3d 239; State v. Buell (1986), 22 Ohio St.3d 124; State v. Stumpf (1987), 32 Ohio St.3d 95; State v. Henderson (1988), 39 Ohio St.3d 24; State v. VanHook (1988), 39 Ohio St.3d 256; State v. Sowell (1988), 39 Ohio St.3d 322; State v. Grant (1993), 67 Ohio St.3d 465; State v. Phillips (1995), 74 Ohio St.3d 72; State v. Wogenstahl (1996), 75 Ohio St.3d 344. Appellant's fourteenth assignment of error is overruled. Judgment affirmed. XVI. Pursuant to R.C. 2929.05(A), this court must make an independent evaluation of whether the aggravating circumstance in this case outweighs any mitigating factors in order to determine whether appellant's death sentence is appropriate. The evidence shows beyond a reasonable doubt that appellant murdered Mustafa Sammour while committing an aggravated robbery and that appellant was the principal offender in the aggravated murder. R.C. 2929.04(A)(7). Against this specification, any mitigating factors must be considered and weighed. Of the criteria listed in - 52 - R.C. 2929.04(B), only those relating to youth and to any other relevant factors are applicable. Appellant was nineteen years old at the time he committed the offense. Generally, the element of youth is entitled to little weight. State v. Carter (1995), 72 Ohio St.3d 545. There is no evidence appellant's youth played much of a part in the murder. Appellant planned the robbery, recruited acquaintances to join him in the crime, cold-bloodedly shot the unresisting store clerk in the head at point-blank range, and then put his weapon to the head of the second clerk. There is nothing in the episode of inexperience or the emotional immaturity one might ascribe to youth. Appellant's attorney attempted to raise residual doubt appellant was the actual killer during his penalty argument. There is no doubt appellant killed Sammour. The evidence amply supports this conclusion. Defense counsel also asked for a sentence more proportionate to that of his co-defendants. This factor also is afforded little weight. There is nothing in the nature and circumstances of the offense which is mitigating. Appellant killed an unresisting victim in furtherance of a robbery. There was some evidence regarding circumstances surrounding appellant's birth and upbringing but nothing which is heavily mitigating. - 53 - In weighing the aggravating circumstance against the mitigation evidence, the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. XVII. After reviewing several cases involving aggravated robbery - murder in which the death penalty was imposed, this court finds appellant's sentence of death to be neither excessive nor disproportionate. State v. Martin (1985), 19 Ohio St.3d 122; State v. Scott (1986), 26 Ohio St.3d 92; State v. Byrd (1987), 32 Ohio St.3d 79; State v. Jester (1987), 32 Ohio St.3d 147; State v. Post (1987), 32 Ohio St.3d 380; State v. Esparza (1988), 39 Ohio St.3d 8; State v. Jamison (1990), 49 Ohio St.3d 182; State v. Carter (1995), 72 Ohio St.3d 545; State v. Eley (1996), 77 Ohio St.3d 174. Appellant's conviction and death sentence are affirmed. - 54 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, J. and TERRENCE O'DONNELL, J. CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This 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(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .