In appealing his convictions, and his sentence for aggravated murder, appellant raises thirty-nine propositions of law. For the reasons discussed below, we affirm the judgment of the court of appeals in all respects and uphold appellant’s sentence of death.
I
In propositions of law one through five, appellant raises challenges to the constitutionality of various portions of Ohio’s death penalty statutes, each of which arguments — save one — has been considered and rejectеd in several of our prior cases: State v. Jenkins (1984),
II
In his sixth proposition of law, appellant argues that the kidnapping specification fails to genuinely narrow the class of aggravated murderers eligible for death, because the elements of kidnapping are inherent in any aggravated murder. This argument has been rejected on similar facts in Jenkins, supra, at 194-198, 15 OBR at 337-340,
III
In proposition of law number seven, appellant challenges the trial court’s denial of his motion for an expert witness to investigate: (1) whether the jury array represented a fair cross-section of the community; and (2) Franklin County’s practice of compiling the annual jury list by taking names at random from a list of registered voters. His arguments are
IV
In his eighth, ninth and tenth propositions of law, appellant questions the jury selection process. First, appellant contends that two veniremen were improperly excluded for cause on the grounds of their beliefs concerning capital punishment. The record reveals, however, that both prospective jurors were properly excluded under the standard set forth in Wainwright v. Witt (1985),
Second, appellant states that juror Kathleen Hill should havе been excluded for cause because she indicated that she was strongly in favor of capital punishment and would not be able to follow the law on mitigating factors as instructed to her. However, even assuming it was error not to exclude this juror for cause, the record reveals that appellant did not exhaust his peremptory challenges and could have thus removed juror Hill himself, without cause. Most important, juror Hill did not finally sit as a juror in this case, and thus we cannot find a denial of appellant’s right to a fair and impartial jury.
Finally, appellant argues that the state’s use of peremptory challenges to excuse five black prospective jurors denied him the right to a jury drawn from a fair cross-section of the community. This argument is without merit, as the fair cross-section requirement of Taylor v. Louisiana (1975),
V
In his eleventh, twelfth and thir
Similarly, although appellant’s right to counsel may have attached as to the breaking and entering charges, his right to counsel as to the Crawford case had not. All of the challenged statements here were made prior to appellant becoming a suspect, and obviously before the initiation of formal charges, when the right to counsel attaches. Moran v. Burbine (1986),
VI
Appellant challenges various photographic evidence in his fourteenth, fifteenth and twenty-seventh propositions оf law.
Appellant first argues that five photographs of Crawford’s body were improperly admitted at trial, due to their prejudicial effect on the jury. This argument is without merit. The probative effect of these photographs, depicting the scene of the discovery of the body and the autopsy, outweighs their prejudicial effect, and the photographs were not repetitive or cumulative. The photographs were thus properly admitted under the test set forth in State v. Thompson (1987),
Appellant next argues that two pre-death photоgraphs of Crawford were introduced “solely to inflame and
Finally, appellant objects to the admission of a photograph depicting appellant with a handgun in his waistbelt and surrounded with guns in the foreground and background. However, this photo was properly admitted in rebuttal to testimony by appellant’s brothers that they had never seen appellant with a firearm.
Appellant’s fourteenth, fifteenth and twenty-seventh propositions of law are without merit.
VII
In his sixteenth proposition of law, appellant argues that statements he mаde to his cellmate at the Franklin County Jail prior to trial should have been suppressed as they were made in the absence of counsel in violation of the Ohio Constitution. However, inasmuch as no state action was involved when appellant made his inculpatory statements to the cellmate (since the statements were made before the cellmate contacted the prosecutor’s office), appellant’s right to counsel was not violated. Kuhlmann v. Wilson (1986),
VIII
In his seventeenth proposition of law, appellant complains that the testimony of appellant’s cellmate, that appellant had a computer list of the names and addresses of the jurors, prejudiced the jurors and influenced the sentencing process. This argument is without merit. The trial court explained to the jurors that the appellant was entitled to such list by statute and that it was, in any event, public information. The testimony was relevant to demonstrate that the cellmate did not fabricate his testimony from reading aрpellant’s “legal papers” as the only such papers he saw were the jury lists. Evid. R. 401. Appellant has not demonstrated that the probative value of such evidence was substantially outweighed by the danger of unfair prejudice. Evid. R. 403(A).
IX
In his eighteenth proposition of law, appellant contends that the admission of evidence of other criminal activity by the appellant during the guilt phase and comment thereon by the prosecutor during the closing arguments denied him a fair trial. We disagree, as each of the five instances оf “other acts” evidence cited by appellant were admitted for purposes “ ‘other than to show mere propensity or disposition on the accused’s part to commit the crime.’ ” State v. Watson (1971),
X
In his nineteenth proposition of law, appellant complains that the warrant issued to search his home for stolen firearms was not supported by probable cause, since it was based on “stale” information over a year old. This argument is without merit, as the record reveals that the informant had seen what he believed to be a stolen .357 magnum handgun at the Roe residence as recently as three weeks before thе issuance of the warrant. A review of the totality of the circumstances on the face of the record demonstrates that probable cause did indeed exist to support the issuance of this search warrant. Illinois v. Gates (1983),
XI
In his twentieth proposition of law, appellant contends that the state was permitted to argue a non-statutory aggravating circumstance (i.e., rape) in its guilt-phase closing argument. This argument fails for several reasons. First, the prosecutor did not specifically mention any other crime and in fact argued that the absence of Crawford’s boots at the scene was probative of the indicted offenses, i.e., aggravated robbery and kidnapping. Second, the jury was instructed that counsel’s argument was not evidence. Third, the jury was instructed in both the guilt phase and sentencing phase that it could only deliberate on the indicted offenses and specifications. The twentieth proposition of law is without merit.
XII
In his twenty-first proposition of law, appellant argues that the kidnapping specifications to both counts of aggravated murdеr should have been dismissed because such specifications failed to give him sufficient notice of the type of kidnapping charged (whether subsection [A] or [B] of R.C. 2905.01). We disagree, as the indictment herein gave appellant sufficient notice that he was charged with two counts of felony murder and two specifications alleging aggravating circumstances under R.C. 2929.04(A)(7). In addition, counts four and five of the indictment clearly set forth the only type of kidnapping which the state attempted to prove. Appellant’s twenty-first proposition of law is without merit.
XIII
In his twenty-second proposition of law, appellant claims that the repeated commenting to the jury that its recommendation of death was not binding on the court, albeit a correct statement of Ohio law, so eroded the jury’s sense of responsibility for determining the appropriate sentence that appellant was thereby denied a fair trial. We can find no denial of due process that would result from reminding the jury, however frequently, of its proper role in Ohio’s sentencing scheme, so long as such reminders are a correct statement of Ohio law and do not mislead the jury. See State v. Buell (1986),
XIV
In his twenty-third, and thirty-first through thirty-fourth propositions of law, appellant challenges various instructions given to the jury in both the guilt and sentenсing phases at trial. Similar arguments against identical instructions have been raised and rejected in several of our prior cases: Jenkins, supra; Maurer, supra; Buell, supra; State v. Williams (1986),
XV
In his twenty-fourth proposition of law, appellant essentially reargues propositions of law numbers twenty-one, twenty-five and thirty-seven, each of which has been discussed and rejected elsewhere in this opinion. This twenty-fourth proposition of law is likewise without merit.
XVI
In his twenty-fifth proposition of law, appellant contends that his convictions for kidnapping and aggravated robbery were not supported by sufficient evidence. Even though appellant failed to timely file a Crim. R. 29 motion for acquittal on these counts at trial and thus failed to preserve his arguments on appeal, we have reviewed the evidence, in the light most favorable to the prosecution, and hold that a jury could reasonably conclude that all the essential elements of these crimes have been proven beyond a reasonable doubt. State v. Eley (1978),
In the instant case, evidence was adduced that appellant forced Donеtte Crawford to stop her car at gunpoint and removed her. Crawford had been paid that day. She had cashed her check and had the money in her possession at the time of the offense. When her car was recovered, it had been ransacked. Crawford’s purse, boots, and money were never recovered. Furthermore, evidence was adduced that Crawford was removed from the point of the stop on the west side of Columbus and transported to the east side of Columbus where she was eventually murdered.
Appellant’s twenty-fifth proposition of law is without merit.
XVII
In proposition of law twenty-six, appellant argues that the trial court’s refusal to sentence him on the non-capital convictions prior to the capital sentencing hearing injected an arbitrary factor into the sentencing process. This argument is devoid of merit, as no statutory provision for such bifurcated sentencing exists, and the trial court wisely avoided improperly influencing the jury’s recommendation with its assessment of the severity of the crimes.
XVIII
Appellant’s twenty-eighth рroposition of law, in which he argues that the trial court erred in excluding the testimony of a social worker with the Ohio Public Defender Commission during the sentencing hearing, is without merit. Such testimony, which.would have shown the disposition of other capital cases in Franklin County where defendants have received sentences of life imprisonment, was irrelevant to the jury’s sentencing decision, State v. Steffen (1987),
XIX
In his twenty-ninth proposition of law, appellant argues that the prosecutor’s сlosing argument in the sentencing phase denied him a fair sentencing hearing. We find no error in the prosecution’s emotional appeals, which were based on the evidence and did not play on the jurors’ fears and passions. In addition, the prosecutor commented on statutory mitigating factors on which appellant had not presented evidence at the hearing. In State v. DePew (1988),
XX
In proposition of law thirty, which is related to the preceding propоsition of law, appellant contends the trial court improperly instructed on mitigating factors not requested by him. This argument is without merit since, as discussed above, the trial court’s instructions were properly based on the evidence as presented at trial, and included an instruction on the mitigating factors of the youth of the offender, lack of a significant history of prior criminal convictions and delinquency, and other factors that are relevant to the issue of whether the offender should be sentenced to death. R.C. 2929.04(B)(4), (5) and (7). A defеndant may not limit the court’s instructions in a manner inconsistent with the evidence presented.
XXI
In his thirty-fifth proposition of law, appellant complains that the trial court refused to permit presentation of more mitigating evidence subsequent to the jury recommendation, and refused to grant a presentence investigation and mental examination at that time. In addition, appellant argues that the court failed to provide a meaningful opportunity for allocution. These arguments are without merit. R.C. 2929.03(D)(1) provides that all mitigating evidence must be presented to the jury, if the offender was tried by a jury, and that the reports requested must be requested immediately following the guilt phase so that they may be presented to the jury. A defendant may not wait for an unfavorable jury recommendation before presenting all relevant evidence in mitigation of sentence.
As to allocution, the trial court invited appellant to make a statement to the court immediately following the jury’s recommendation, and when appellant declined, the judge left his invitation open for any time during the court’s independent review. The record shows appellant did, in fact, make his allocution immediately prior to the court’s pronouncement of sentence.
Appellant’s thirty-fifth proposition of law is without merit.
XXII
In proposition of law thirty-six, appellant challenges the adequacy of the trial court’s written opinion, filed pur
XXIII
In his thirty-seventh proposition of law, appellant contends that the court of appeals, in its proportionality review, improperly failed to consider Franklin County capital cases in which the death penalty was not imposed. Such arguments have previously been addressed and rejected by this court in Rogers, supra (
XXIV
In his thirty-eighth proposition of law, appellant contends that he was denied his right to counsel and right to be present at all stages of the proceedings when he and his counsel were excluded from a portion of a suppression hearing, during which the court and prosecutоrs questioned a witness to determine whether the identity of an informant should be disclosed. Even though a criminal defendant has a constitutional right to be present, whether in person or by counsel, at all critical stages of his trial, Amendments Five, Six and Fourteen to the United States Constitution; Snyder v. Massachusetts (1934),
The thirty-eighth proposition of law is without merit.
XXV
In his thirty-ninth proposition of law, appellant challenges the constitutionality of his sentence to two three-year terms of actual incarceration for firearm specifications in addition to indeterminate sentences for kidnapping and aggravated robbery. The actual incarceration imposed pursuant to R.C.
XXVI
We now independently weigh the aggravating circumstances against the mitigating factors presented below. R.C. 2929.05. Two aggravating circumstances were proven beyond a reasonable doubt:
(1) That appellant, as the principal offender, committed the offense of aggravated murder of Donette Crawford while he was committing or attempting to commit the offense of kidnapping, or while fleeing immediately thereafter;
(2) That appellant, as the principal offender, committed the offense of aggravated murder of Donette Crawford while he was committing or attempting to commit the offense of aggravated robbery, or while fleeing immediately thereafter.
In addition to his unsworn statement, appellant presented twenty-one mitigation witnesses. Through these witnesses, a detailed portrait of John Roe, from his early life with an abusive, alcoholic father to the date of his mitigation hearing, was presented. Early сhildhood friends and acquaintances described him as a quiet, well-mannered and non-violent child. In large part, these witnesses had not been in contact with appellant in five to ten years prior to the Crawford homicide.
Adult acquaintances of the Roe family in Barnesville, Ohio, described the early years of appellant’s life (up to age seven) with an unemployed, alcoholic father who frequently physically and verbally abused appellant’s mother, and occasionally appellant. Appellant’s mother testified that she took appellant as a young boy on stealing trips to department stores, but she never told him that stealing was wrong. She corroborated the stories of appellant’s father’s abuse. Appellant’s stepbrother and stepsister testified that appellant would play with them and that they liked him. Schoolteachers and administrators described him as an average to below average student, with an attendance problem. Some described him as a disrespectful student with a disciplinary problem.
Finally, aрpellant made an unsworn statement concerning his unfortunate childhood, his drug abuse, juvenile delinquency and prison experiences, and asked the jury to spare his life. Appellant was twenty-two years old at the time of the crime, and has a significant history of juvenile and adult theft-related offenses.
Weighing these mitigating factors against the aggravating circumstances that this aggravated murder was committed as the culmination of the kidnapping and aggravated robbery of an unsuspecting young mother, we are persuaded that such aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and that the sentence of death is appropriate in this case.
Finally, discharging our statutory duty, we have reviewed those cases in which death sentences were imposed for the commission of aggravated murder during the commission of aggravated robbery, State v. Post (1987),
Therefore, we affirm the judgment of the court of appeals.
Judgment affirmed.
Notes
R.C. 2945.25 provides, in pertinent part:
“A person called as a juror in a criminal case may be challenged for the following causes:
(< Ofi ‡ ‡
“(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.”