State v. Fears

715 N.E.2d 136, 86 Ohio St. 3d 329

Opinions

Francis E. Sweeney, Sr., J.

Appellant has raised twenty-eight propositions of law, which we have fully considered. (See Appendix.) Pursuant to State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, and subsequent cases, we summarily reject without discussion those propositions of law where the error was not properly preserved or where the issues raised have been addressed by this court and rejected. We have also considered the death penalty for appropriateness and proportionality. Upon review, and for the reasons that follow, we uphold appellant’s convictions and sentences, including the sentence of death.

I

PROSECUTORIAL MISCONDUCT

In his first and twenty-first propositions of law, appellant alleges numerous instances of prosecutorial misconduct, in both the guilt and penalty phases of the trial. The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400. For the reasons that follow, although we find no reversible error, we express our deep concern over some of the remarks and misstatements made by the prosecutors involved in this case. While we realize the importance of an attorney’s zealously advocating his or her position, we cannot emphasize enough that prosecutors of this state must take their roles as officers of the court seriously. As such, prosecutors must be diligent in their efforts to stay within the boundaries of acceptable argument and must refrain from the desire to make outlandish remarks, misstate evidence, or confuse legal concepts. • Nevertheless, because we find that none of the errors complained of rises to the level of plain error, we do not reverse this case based upon prosecutorial misconduct. The alleged errors are discussed as follows.

In his first proposition of law, appellant contends that one of the prosecutors (Mr. Prem) improperly argued' nonstatutory aggravating circumstances, when he stated the following during his closing argument in the penalty phase of the trial:

“I submit to you there is nothing mitigating in the manner in which Angelo Fears purposely killed Antwuan Gilliam. There’s no mitigation in that.”

“What kind of terror did he [appellant] put into Derrick Frazier’s head? He told us he peed in his pants. How is that for aggravating circumstances?”

“Well, I guess there’s some mitigation there because, you know, * * * he left [Lakesha] alone and that four-year-old baby there. He didn’t touch that child. There’s mitigation for you. There’s mitigation for you. The murder. You have to look at the nature and circumstances of the murder.”

“[D]oes that abuse [that appellant suffered as a child], is that justification or is that a mitigation factor sufficient to outweigh the brutal death of Antwuan Gilliam[?]”

Except for the comment regarding Derrick Frazier, defense counsel did not object to the other remarks. Therefore, those comments that were not objected to are analyzed under the plain error rule, since “[a] claim of error in a criminal case can not be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial.” State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244, paragraph one of the syllabus.

In State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311, at paragraph two of the syllabus, we held that “[i]t is improper for prosecutors in the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are ‘aggravating circumstances.’ ” The “aggravating circumstances” are limited to those factors set forth in R.C. 2929.04(A)(1) through (8) that are specified in the indictment and proved beyond a reasonable doubt. Id. at 351, 662 N.E.2d at 318.

It is clear that the prosecutor in this case erred in referring to the terror appellant inflicted on Derrick Frazier as an “aggravating circumstance.” As we have previously stated, it is improper for a prosecutor to “suggest that * * * the suffering and mental anguish the victims endured was an aggravating circumstance.” State v. Combs (1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077. The prosecutor also erred by telling the jury that it should weigh appellant’s childhood abuse against the nature and circumstances of the offense. The nature and circumstances of the offense can be weighed only against the proven aggravating circumstances. In addition, with that comment, the prosecutor implied that mitigation must outweigh aggravation. Nevertheless, although these comments were improper, we do not find that they rise to the level of plain error.

Appellant also states that the prosecutor improperly told the jury in opening argument to consider the nature and circumstances of the offense itself and to weigh these against the aggravating circumstances. We find no error in this comment.

Appellant further contends that both prosecutors erred by commenting on his lack of remorse. First, Prosecutor Prem argued that “the doctor [Dr. Smalldon] said he [appellant] doesn’t care. He is callous. He doesn’t have any remorse. He doesn’t regret the consequences of what he does.” Then, Prosecutor Russell stated: “He shot them with no remorse. He shot them in front of two other people and he pistol whipped Derrick Frazier.” While it is impermissible to turn the nonexistence of a mitigating factor, such as remorse, into an aggravating circumstance (State v. Tyler [1990], 50 Ohio St.3d 24, 41, 553 N.E.2d 576, 596), a prosecutor is entitled to rebut the evidence of remorse presented by the defendant, State v. Atokal (1996), 76 Ohio St.3d 324, 336, 667 N.E.2d 960, 971. As we stated in State v. McGuire (1997), 80 Ohio St.3d 390, 395, 686 N.E.2d 1112, 1117, State v. Tyler “does not hold that the state cannot comment on the lack of remorse whenever the defendant denies guilt. Rather, it holds that the state cannot refute potential mitigating factors that the defense has not first placed in issue.” Since appellant expressed remorse in his unsworn statement, the prosecutors did not err in making these comments.

Another comment alleged to be improper is the prosecutor’s reference to Dr. Smalldon as defense counsel’s “mouth piece.” This comment insinuates that defense counsel has paid the expert simply to have him parrot their opinions. It is obviously intended to denigrate defense counsel. ' However, the trial court sustained an objection to this remark and instructed the jury to disregard it. The jury is presumed to have followed the court’s instructions. State v. Raglin (1998), 83 Ohio St.3d 253, 264, 699 N.E.2d 482, 492. Appellant further argues that it was improper for the prosecutor to state in closing argument that the defense expert was being paid with taxpayer money. Again, although it may be proper to discuss an expert’s fee to show bias or pecuniary interest, this comment injects an impermissible reference to taxpayer’s contributions, by which the prosecutor obviously hoped to gain an unfair advantage. However, even though improper, these remarks do not rise to the level of prejudice found in State v. Keenan (1993), 66 Ohio St.3d 402, 406, 613 N.E.2d 203, 207.

Appellant alleges that the prosecutors erred in asking his mother impermissible questions regarding a criminal charge against her and a competency examination connected to that charge. Even though appellant’s mother had not yet been sentenced, the prosecutor was entitled to impeach her with her guilty plea to burglary. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d 111, syllabus. Furthermore, defense counsel did not object to the questions regarding her conviction or her competency, so the claims are waived.

Appellant also says that the prosecutors erred in asking mitigation witnesses questions as to whether they believed that appellant knew right from wrong. This door had already been opened by the defense in its questioning of these witnesses. Therefore, appellant cannot claim error. In a similar vein, appellant objects to the line of questioning regarding whether he belonged to a gang and regarding an assault he had been involved in. Since appellant’s brother had already testified that appellant had never been the type of person who would hurt anyone, this line of questioning was not error. Moreover, appellant’s sister denied any gang membership and his brother denied appellant’s involvement in the assault. Appellant cannot claim prejudice by these remarks.

Several misconduct allegations stem from a dispute at trial over whether the prosecutors were entitled to see Smalldon’s interview notes. The trial court ruled that the state could not receive these notes. Nevertheless, the prosecutor made several comments about these notes in the presence of the jury. The prosecutor asked Smalldon, over objection, whether he provided these notes to the state. The prosecutor also alluded in cross-examination to Smalldon’s failure to write a report. The court sustained several defense objections. Filially, in closing argument, the prosecutor argued to the jury that Smalldon’s bias was shown by his refusal to give information to the state. Prosecutor Russell stated: “He [Smalldon] was reluctant to give up what was in his file. He was reluctant to tell us what the defendant had told him. He was unwilling to give us his notes and unwilling to write a report.” Defense counsel objected, and the judge sustained the objection as to the notes and instructed the jury to disregard the comment. Since the trial court had initially overruled the state’s request for Smalldon’s notes, the prosecutor should not have made these comments, which cast an improper light on Smalldon and accused him of wrongdoing and withholding of pertinent information. However, even in combination with the above errors, we do not believe that appellant was denied a fair trial by any of these remarks.

In appellant’s twenty-first proposition of law, he alleges the following instances of prosecutorial misconduct during the guilt phase. First, appellant claims that it was improper for the prosecutor, during voir dire and in closing argument, to discuss possible defenses that were not argued by defense counsel. In particular, appellant points to the questioning in voir dire by Prosecutor Russell, where' she began to tell the venireman what she expected would be “one of the major issues.” Before she said what the issue was, a defense objection was sustained. The prosecutor rephrased the question and discussed the concept of a purposeful versus accidental killing. Appellant contends that by discussing these concepts, the prosecutor implied that appellant would argue that he accidentally shot the victim. Since the trial court sustained defense counsel’s objection and the prosecutor never completed her thought as to what one of the main issues was, we do not believe that appellant was prejudiced by these remarks.

Appellant also argues that Prosecutor Prem made an improper remark during voir dire and led the venire to presume that appellant had the intent to commit the crimes when he told prospective jurors that appellant and James Grant “were going to rob people. If they had to kill somebody, they were going to do it.” Although the trial court sustained defense counsel’s objection, appellant argues that a curative instruction should have been given. However, the record does not reflect a request for such an instruction. Again, this remark does not amount to prejudicial error.

Appellant contends that the following remarks made by the prosecution in voir dire and in closing argument of the guilt phase regarding the intent of appellant were also improper. First, Prosecutor Prem asked a venireman whether it was possible to determine someone’s intent “without having them help us figure that out?” Then, during closing argument, Prosecutor Russell said:

“He [defendant] brings a loaded semi-automatic weapon into a home-invasion robbery. You can infer that as purpose. Listen to what ‘purpose’ is. It’s a conduct, manner the weapon was used. He is bringing a loaded semi-automatic. If you only want to scare somebody, why did he have it loaded? Bring it in and pointed it.

“It’s clear he is going to tell you that he never was going to kill him. Gun wasn’t loaded.” (Emphasis added.)

A defense objection was sustained.

Turning to the first remark, we note that it is improper for a prosecutor to comment on the defendant’s failure to testify. Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; State v. Cooper (1977), 52 Ohio St.2d 163, 173, 6 O.O.3d 377, 382-383, 370 N.E.2d 725, 732-733; State v. Webb (1994), 70 Ohio St.3d 325, 328-329, 638 N.E.2d 1023, 1028-1029. However, to determine whether there is a violation of a defendant’s Fifth Amendment rights, we must decide “ ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” (Emphasis deleted.) Id. at 328, 638 N.E.2d at 1028, quoting Knowles v. United States (C.A.10, 1955), 224 F.2d 168, 170. The comments made by Prosecutor Russell suggest an impermissible reference to appellant’s failure to take the witness stand. However, these comments can also be read as a reference to appellant’s defense of lack of intent. While we in no way condone the choice of words used, we do not believe that the jury would necessarily take them to be comments on appellant’s failure to testify. As to the comment regarding the gun, we find that this was improper, since the defense never contended that the gun was not loaded.

Although we are greatly disturbed by Prosecutor Russell’s and Prem’s lack of restraint and their willingness to utter such inflammatory remarks, we cannot say that these comments constitute reversible error. The evidence of guilt in this case is so overwhelming that none of the prosecutors’ comments, even if error, amounted to reversible error. Upon review of the entire record, we find that none of the alleged instances of misconduct that occurred affected the fairness of the trial. We overrule appellant’s first and twenty-first propositions of law. If this kind of activity continues, it is just a matter of time before it affects the outcome of a trial.

II

TRIAL ISSUES A

Voir Dire

In proposition of law twenty-four, appellant argues that several prospective jurors were improperly excused for cause due to their opposition to the death penalty. In particular, appellant contends that the challenges for cause should not have been granted, since none of the challenged prospective jurors unequivocally stated that their beliefs would prevent them from recommending the death penalty or that they would be unable to follow the instructions of the court in considering whether to impose the death penalty.

The standard for determining whether a prospective juror should be removed for cause due to his or her views regarding the death penalty is whether those views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Emphasis deleted.) Wainwright v. Witt (1985), 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841, 849, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589. See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus. In reviewing challenges for cause based upon prospective jurors’ views on capital punishment, we are mindful that the trial judge’s ruling will not be disturbed on appeal unless it constitutes an abuse of discretion. State v. McNeill (1998), 83 Ohio St.3d 438, 445, 700 N.E.2d 596, 605.

The record supports the trial court’s decision to excuse the prospective jurors for cause based upon their opposition to the death penalty. Contrary to appellant’s assertion, several of the prospective jurors unequivocally stated that they could not fairly consider the death penalty. Prospective jurors Hyams,. Taylor, Martins, Reilly, and Koch said they could never vote for the death penalty. Reilly, Koch, and Hyams opposed the death penalty even for Hitler. Prospective juror Dusseau was adamant in his opposition, stating that it was against his religion and that it was up to God to take a life. Prospective juror Johnson also said he could not fairly consider the death penalty.

Prospective juror Gale, who was reluctant to serve due to child-care difficulties, initially felt she could return a death recommendation. However, during a later session, Gale asked to address the court and advised the court unequivocally that she could “never be involved in the decision whether or not someone lives or dies unless it’s self-defense.” Appellant insinuates that Gale was burdened with finding child-care and that she changed her position on the death penalty in order to be excused from jury duty. However, appellant cannot prove this allegation. The trial court’s reason for Gale’s removal, that her views on capital punishment would substantially impair the performance of her duties as a juror, is supported by the views Gale expressed. We find no abuse of discretion in the trial court’s removal for cause of prospective juror Gales.

Likewise, although prospective jurors Moore, Wackerly, Johnson, and Landy were not adamant in their blanket opposition to the death penalty, we do not believe that it was an abuse of discretion to exclude these jurors for cause. They either stated that they did not think they could fairly consider the death penalty or that they could not apply that penalty under the facts of this case. The trial judge was in the best position to observe their demeanor and body language and to determine that these prospective jurors could not be impartial and follow the law. See State v. Williams (1997), 79 Ohio St.3d 1, 8, 679 N.E.2d 646, 654. We reject this proposition .of law.

In his twenty-fifth proposition of law, appellant contends that he was deprived of an impartial jury because the trial court refused to grant his motion for individual sequestered voir dire. The manner of conducting voir dire is within the sound discretion of the trial court. State v. Lorraine (1993), 66 Ohio St.3d 414, 418, 613 N.E.2d 212, 217. There is no requirement that voir dire in a capital case must be conducted in sequestration. State v. Brooks (1996), 75 Ohio St.3d 148, 156, 661 N.E.2d 1030, 1038, citing State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph two of the syllabus. The record reveals that there was a full and comprehensive voir dire and that there was no abuse of discretion in failing to allow sequestered voir dire. Accordingly, we reject appellant’s twenty-fifth proposition of law.

B

Admissibility of Evidence

1. Identification of Appellant

In propositions of law sixteen and seventeen, appellant argues that the trial court erred in allowing Lakesha Bryant to testify regarding the identity of appellant. At trial, Bryant conceded that she remained in her bedroom during the course of the robbery and shooting and neither saw appellant nor recognized his voice. Nevertheless, when asked how she was able to give appellant’s name to police, she answered, over objection: “Two guys that were standing outside told me who it was.” Bryant gave similar testimony at the hearing on appellant’s motion to suppress identification. In addition, Bryant testified at trial that she identified appellant in a photo lineup at police headquarters.

Appellant contends that this testimony should have been suppressed because it' is hearsay and violates Evid.R. 602. The state argues that it was elicited for a nonhearsay purpose, “to explain her subsequent actions of going down to the police station and identifying defendant from a photo line-up rather than to prove the truth of the statement.” The state also contends that if this was improper testimony, it would constitute harmless error because it was cumulative to the testimony of two other eyewitnesses who identified appellant as the one who killed Gilliam. We find that this testimony was improper hearsay and served no relevant purpose. Given the fact that Bryant herself admits that she could not possibly place appellant at the crime scene, or implicate him as the person who fired the fatal shot, we find that her reference to what others told her about appellant’s presence was hearsay. For this reason, her identification of appellant in a photo lineup should have been suppressed. However, the defense did not dispute that appellant shot Gilliam and we find that under these facts, Bryant’s testimony was cumulative and constitutes harmless error, since the error did not contribute to the verdict. Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711.

2. Admissibility of Tape Recordings and Witness Statements

Appellant also contends in proposition of law twenty-two that under Evid.R. 801(D)(1)(b), the trial court improperly admitted into evidence Bryant’s 911 call and statement she made to police as well as Derrick Frazier’s taped interview with police.

Evid.R. 801(D)(1)(b) provides that a prior consistent statement is not hearsay if it “is offered to rebut an express or implied charge against [the declarant] of recent fabrication or improper influence or motive.” Lakesha Bryant testified on direct examination that she called 911 after the shooting. On cross-examination, Bryant said she did not recall what she told the 911 operator. Defense counsel sought to refresh her memory and to impeach her credibility with questions pertaining to the 911 tape and the statement she made to police. On redirect, over objection, the state introduced the 911 tape and her taped interview with police. This was clearly improper, since on cross-examination no reference to or implication of fabrication or undue influence was made, which is the basis for admitting such statements under Evid.R. 801(D)(1)(b). However, we find that this is harmless error, particularly since Bryant was not a key witness to the murder.

As to Derrick Frazier’s taped statement, the state introduced the statement after investigating Officer Feldhaus testified as to some inconsistencies with Frazier’s testimony. Although appellant argues inadmissibility under Evid.R. 801(D)(1)(b), the state argues that it invoked Evid.R. 106 to admit the recorded statement. Evid.R. 106 provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.”

At trial, the state said that it intended to play the taped statement because the defense had already introduced part of it to the jury. This is incorrect. The defense did not introduce the statement, but merely referred to a transcript of the interview in cross-examining Feldhaus. Since the defense did not introduce any “writing or recorded statement,” the taped interview was not admissible under this rule. However, we find that the admission of this taped statement is harmless. Frazier’s statement to Feldhaus did not differ from his trial testimony in any important respect, nor did he contradict anything pertaining to a main issue in the case. Moreover, Officer Feldhaus had already given the jury his account of the interview before the tape was played. We overrule appellant’s twenty-second proposition of law.

C

Unrecorded Proceedings

In his fifteenth proposition of law, appellant objects to the fact that the trial judge and attorneys discussed a number of motions off the record without a court reporter present. Although Crim.R. 22 requires that proceedings be recorded in serious offense cases, defense counsel acquiesced to this procedure, and we do not find that the failure to record these discussions rises to plain error. Accordingly, we overrule appellant’s fifteenth proposition of law.

Ill

JURY INSTRUCTIONS

In his twenty-third proposition of law, appellant argues that the trial court erred in instructing the jury, at the state’s request and over defense counsel’s objection, on the defense of accident. The trial judge instructed the jury as follows: “[A]n accidental result is one that occurs unintentionally and without any design or purpose to bring it about. An accident is a mere physical happening or event out of the usual order of things and not reasonably anticipated or foreseen as a natural or probable result of a lawful action.”

Appellant contends that this instruction confused the jury and made it appear that the defense was asserting something more than a lack of purpose. We disagree. The concept of accident is tantamount to a denial that the act was intentional. Throughout the trial, defense counsel challenged the state’s evidence of intent. The instruction on accident, in effect, underscores the position taken by defense counsel that appellant did not intentionally cause the death of the victim. The trial court made it clear that “purpose to cause the death” is an essential element of aggravated murder and that the state had to prove all the elements of the offense beyond a reasonable doubt, including that appellant had the specific intent to cause the death of Antwuan Gilliam. It is fundamental that jury instructions must be considered as a whole. See State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772. When the jury instructions in this case are read as a whole, we find no error with this charge. Therefore, we reject appellant’s twenty-third proposition of law.

In proposition of law thirteen, appellant challenges several penalty-phase instructions as well. However, since defense counsel failed to object to the instructions as given, the asserted errors are reviewed under the plain-error standard. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. Under this standard, and after fully reviewing the alleged errors, we find no merit in appellant’s arguments. We overrule proposition of law thirteen.

IV

SUFFICIENCY AND MANIFEST WEIGHT OF EVIDENCE

In his eighteenth proposition of law, appellant challenges the sufficiency of the evidence on his aggravated murder convictions. In reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.

In particular, appellant contends that his aggravated murder convictions must be reversed because the evidence is insufficient to prove that he purposely killed the victim or that he acted with prior calculation and design. According to appellant, the evidence reveals that he fired the gun instantaneously after cocking it and that what occurred was simply a spontaneous eruption of events. Therefore, appellant argues that he lacked the specific intent to commit aggravated murder and that there was no prior calculation and design.

The fatal shooting of Antwuan Gilliam was not simply a spontaneous or instantaneous act. Appellant and his accomplice (Grant) discussed which of the victims to shoot. When Grant instructed appellant to shoot one of the others, appellant said, “No, I’m going to shoot him [Gilliam].” He also told Gilliam, “I don’t give a fuck about killing you,” indicating that his purpose was to kill, not just to wound or threaten him. These actions are sufficient to prove purpose to kill.

Furthermore, as to the argument regarding insufficient evidence of prior calculation and design, we are cognizant of the fact that there is no bright-line test to determine the presence or absence of this requirement and understand that each case must be decided on its own facts. State v. Taylor (1997), 78 Ohio St.3d 15, 19-20, 676 N.E.2d 82, 88-89. Although we have declined to uphold a finding of prior calculation and design in some explosive situations of short duration (see, e.g., State v. Reed [1981], 65 Ohio St.2d 117, 19 O.O.3d 311, 418 N.E.2d 1359), the facts adduced here show that this case is not one in which there was simply an instantaneous eruption of events. Instead, the evidence reveals that just prior to the shooting, appellant had time to reflect about his actions and to decide which individual to shoot. When combined with the fact that appellant discussed this specific course of action with his cohort, and then followed through on that action, we believe that the evidence showed that appellant gave studied consideration to killing Gilliam. Accordingly, we find that the state presented sufficient evidence to support a finding that appellant “ ‘adopted a plan to kill’ ” and that he acted with prior calculation and design in carrying out that plan. See State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 196, 616 N.E.2d 909, 919, quoting State v. Toth (1977), 52 Ohio St.2d 206, 213, 6 O.O.3d 461, 465, 371 N.E.2d 831, 836, overruled on other grounds, State v. Muscatello (1978), 55 Ohio St.2d 201, 203, 9 O.O.3d 148, 150, 378 N.E.2d 738, 740, fn. 3.

Upon a thorough review of the record, we find that the evidence was sufficient to prove appellant’s guilt beyond a reasonable doubt. Accordingly, we overrule appellant’s eighteenth proposition of law.

In his nineteenth proposition of law, appellant contends that his aggravated murder convictions are against the manifest weight of the evidence. In capital eases, this court has the power to determine whether the weight of the evidence supports the judgment. State v. Smith (1997), 80 Ohio St.3d 89, 102-103, 684 N.E.2d 668, 683-684. A verdict can be against the manifest weight of the evidence even though legally sufficient evidence supports it. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. However, in this case, we find, upon review of the entire record, that appellant’s convictions for aggravated murder are not against the manifest weight of the evidence. Appellant’s nineteenth proposition of law is without merit.

Y

CROSS-EXAMINATION OF PSYCHOLOGIST

In his twenty-seventh proposition of law, appellant contends that his constitutional rights, his physician-patient privilege, and attorney-client privilege were violated when the trial court allowed Dr. Smalldon to testify as to what appellant told him about the nature and circumstances of the offense. Over objection, Smalldon testified on cross-examination that appellant told him that he had not intended to kill the victim and that he had not realized the bullet hit anyone. Appellant also told Smalldon that the gun went off while he was checking to see if it was loaded.

Even if these comments were improper, we do not find that they violated any privilege. R.C. 4732.19 places “confidential relations and communications between a licensed psychologist * * * and client * * * upon the same basis as those between physician and patient * * *.” R.C. 2317.02(B)(1) provides that, with certain exceptions, a physician shall not testify “concerning a communication made to the physician * * * by a patient in that relation.” In that context, communications made by a patient to a physician he or she has consulted for treatment are privileged. Thus, the privilege attaches only where a person consults a doctor for treatment or diagnosis and does not extend to the situation presented here, where a psychologist is hired to render an opinion in preparation for litigation. See McMillen v. Indus. Comm. (App.1941), 34 Ohio Law Abs. 435, 37 N.E.2d 632; State v. Hopfer (1996), 112 Ohio App.3d 521, 552-553, 679 N.E.2d 321, 341-342.

Finally, we reject appellant’s argument that his Fifth Amendment rights against self-incrimination were violated. Appellant relies on Estelle v. Smith (1981), 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, for support. In that case, the United States Supreme Court found that the defendant’s' Fifth Amendment rights were violated when a court-appointed psychiatrist testified as to statements the defendant made to him, without the defendant being given his Miranda warnings. The state used these statements in the penalty phase of a capital trial to establish the defendant’s future dangerousness (a factor pertinent in the state of Texas). See, also, Powell v. Texas (1989), 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551. The situation presented in this case is different from the situation in Estelle. Here, it was the defense who requested Smalldon’s appointment. Furthermore, the testimony in this case, unlike that in Estelle, was not used against the defendant, nor did Smalldon make any unfavorable remarks that were used against appellant. Instead, Smalldon’s testimony supports defense counsel’s theory and remarks made by appellant himself in his unsworn statement that the shooting of the victim was unintentional. Hence, any error under this proposition of law is harmless and does not mandate reversal. We overrule appellant’s twenty-seventh proposition of law.

VI

SENTENCING ISSUES

A

Merger and Sentencing Opinion

In propositions of law two through seven, and proposition of law twenty, appellant challenges the trial court’s sentencing opinion. Appellant contends that the kidnapping specification should have been merged ■ with the aggravated robbery specification. By failing to merge these specifications, appellant argues, the trial court considered duplicative aggravating circumstances. Appellant maintains" that, as a result, the court factored into the weighing process an improper aggravating circumstance, thereby violating his constitutional rights.

In State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph five of the syllabus, we held:

“In the penalty phase of a capital prosecution, where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purpose of sentencing. Should this merging of aggravating circumstances take place upon appellate review of a death sentence, resentencing is not automatically required where the reviewing court independently determines that the remaining aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt and that the jury’s consideration of duplicative aggravating circumstances in the penalty phase did not affect the verdict.”

In Jenkins at 198, 15 OBR at 340, 473 N.E.2d 264 at 295, fn. 29, we stated that “implicit within every robbery (and aggravated robbery) is a kidnapping.” Therefore, a kidnapping specification merges with an aggravated robbery specification unless the offenses were committed with a separate animus. R.C. 2941.25(B). Thus, when a kidnapping is committed during another crime, there exists no separate animus where the restraint or movement of the victim is merely incidental to the underlying crime. State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, syllabus. However, where the restraint is prolonged, the confinement is secretive, or the movement is substantial, there exists a separate animus as to each offense. Id.

As applied to this case, we find that the offenses of kidnapping and aggravated robbery were committed with no separate animus, as there is no showing of a prolonged restraint, significant asportation, or secret confinement of the victims. Therefore, we agree with appellant that the kidnapping specification merges with the aggravated robbery specification. Although merger should have taken place, under Jenkins, resentencing is not automatically required. Since we do not believe that the outcome of the penalty hearing was affected by the jury’s consideration of duplicative aggravating circumstances, and because we find, in our independent review, that the remaining aggravating circumstances outweigh the mitigating circumstances, we conclude that appellant need not be resentenced.

Appellant also argues that the aggravated burglary specification should have been merged with the aggravated robbery specification. However, the aggravated burglary in this case does not merge with the aggravated robbery. As soon as appellant entered the apartment by force armed with a deadly weapon with the intent to commit a theft, the aggravated burglary was completed. R.C. 2911.11; State v. Frazier (1979), 58 Ohio St.2d 253, 256, 12 O.O.3d 263, 265, 389 N.E.2d 1118, 1120. Nor does the aggravated burglary merge with the kidnapping in this case. State v. Waddy (1992), 63 Ohio St.3d 424, 448, 588 N.E.2d 819, 837.

Appellant also points to three alleged deficiencies in the sentencing opinion itself. First, he contends that the trial judge did not weigh all the mitigating factors collectively against the aggravating circumstances. The law requires that the mitigating factors be considered collectively, not individually. State v. Dickerson (1989), 45 Ohio St.3d 206, 213, 543 N.E.2d 1250, 1257. In this case, the sentencing opinion begins by discussing the nature and circumstances of the offense, then turns to appellant’s history, character, and background, and concludes by stating that the aggravating circumstances outweigh the mitigating nature of his history, character, and background. However, the opinion then separately discusses the relevant mitigating factors and finds these factors, “considered both individually and collectively, insufficient to outweigh those aggravating circumstances proven beyond a reasonable doubt at trial.” (Emphasis added.) By stating that it considered the mitigating factors individually and collectively, the trial court may have erred. However, upon closer review, it is clear from this statement that the court did consider these factors collectively. Thus, the trial court’s error, if any, is not prejudicial.

Second, appellant contends that the trial court failed to give full weight to his history, character, and background and that it inappropriately considered the fact that appellant knew right from wrong and understood the egregiousness of murder. We reject this argument and note that the issue of appellant’s understanding right from wrong was raised by his own mitigation witnesses. We believe that the trial court gave adequate consideration to appellant’s history, character, and background.

Third, appellant contends that the trial court erred in not considering the psychological testimony of Dr. Smalldon under R.C. 2929.04(B)(7), the catchall factor. Although the court considered this testimony under R.C. 2929.04(B)(3), it did err in failing to consider whether the psychological defects had any mitigating weight under R.C. 2929.04(B)(7). See State v. Green (1993), 66 Ohio St.3d 141, 153, 609 N.E.2d 1253, 1263. However, even assuming this defect in the trial court’s assessment, this court’s independent review will correct any such error. State v. Landrum (1990), 53 Ohio St.3d 107, 124, 559 N.E.2d 710, 729.

C

Readmission of Guilt-Phase Evidence

In his eighth proposition of law, appellant contends that the trial court erred by readmitting all the guilt-phase evidence in the penalty phase. Appellant alleges that evidence as to the killing itself, particularly the gruesome pictures, should have been ruled inadmissible in the penalty phase. We agree that the trial court should exclude evidence relevant to guilt but irrelevant to the penalty phase. State v. Getsy (1998), 84 Ohio St.3d 180, 201, 702 N.E.2d 866, 887. However, because the trial court must consider the nature and circumstances of the offense, R.C. 2929.03(D)(1) “permit[s] repetition of much or all that occurred during the guilt stage.” State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542, 552. In DePew, this included readmission of photographs. We overrule appellant’s eighth proposition of law.

VII

INEFFECTIVE ASSISTANCE OF COUNSEL

In his twenty-sixth proposition of law, appellant contends that his constitutional rights were violated because he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s representation was deficient and that he was prejudiced by that deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. To establish prejudice, the defendant must show that “there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.

Appellant contends that trial counsel’s performance was deficient in several respects. Appellant argues that four prospective jurors were biased and that trial counsel was ineffective in failing to attempt to strike these individuals for cause. We reject this argument. Defense counsel struck three of these prospective jurors by exercising peremptory challenges. The fourth individual, Richards, was seated on the jury and was not challenged for cause or in a peremptory challenge. Appellant concedes that Richards’s answers to voir dire questions would not support a challenge for cause. Nevertheless, appellant contends that had defense counsel challenged the other three individuals for cause, there would have been a peremptory challenge remaining to remove Richards, who appellant believes was biased. Although juror Richards initially expressed some concern about considering mitigating circumstances, he made it clear that he would follow the law and that he would recommend an appropriate sentence based upon the law. See State v. Davis (1991), 62 Ohio St.3d 326, 350, 581 N.E.2d 1362, 1381-1382. Since appellant cannot demonstrate that this juror’s views would impair the performance of his duties according to the court’s instructions, see State v. Rogers, 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus, there is no showing that appellant was prejudiced by defense counsel’s failure to use a peremptory challenge to remove juror Richards.

Appellant also contends that trial counsel was defective in failing to timely challenge the racial make-up of the venire. Defense counsel challenged the venire in open court, alleging that the array did not constitute a fair cross-section of the community, since only one individual out of fifty in the array was black. The court denied the motion as untimely, since voir dire had already begun, citing Crim.R. 24(E), and noted that nothing indicated that the array was chosen in any manner other than random selection from the voting public.

A defendant is entitled to a jury “drawn from a source fairly representative of the community.” Taylor v. Louisiana (1975), 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690, 700. Although defense counsel should have objected before voir dire commenced, see Crim.R. 24(E), appellant fails to show a “reasonable probability” that were it not for this error, the result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.

Appellant further claims that trial counsel did not adequately prepare for the penalty phase of the trial. On Friday, October 24, 1997, four days before the penalty phase began, defense counsel advised the court that he had not yet had a chance to speak with Dr. Smalldon and that he had only an hour to confer with him that day. Defense counsel also stated that he would not receive any mitigation material from the expert until the next day and that he would have to prepare his witnesses over the weekend. Appellant contends that this lack of preparation is tantamount to ineffective assistance of counsel. Contrary to appellant’s assertion, a review of the record does not demonstrate that defense counsel was unprepared at the penalty phase of the trial. In fact, defense counsel called several witnesses, including family members, as well as Dr. Smalldon, on appellant’s behalf. It is evident from the line of questioning of these witnesses that defense counsel was prepared and that he was able to effectively present the mitigation testimony.

Appellant further argues that defense counsel was ineffective in failing to move to dismiss counts of the indictment or to request merger of the aggravating circumstances. While we agree that counsel should have certainly been aware of the fact that merger was required, appellant fails to establish any prejudice.

Appellant also says that counsel should have objected to various unspecified errors. However, “[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.” State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831, 837. Since appellant does not show that any particular failure to object substantially violated any essential duty or was prejudicial, we reject this claim of ineffective assistance of counsel.

In the penalty phase, during a bench conference, the bailiff allowed jurors to use the restroom without the court’s permission. Appellant contends that trial counsel should have asked the court for a hearing to determine what, if anything, was discussed by the jurors during this unauthorized break. Throughout the trial, the trial judge repeatedly admonished the jury not to discuss the case among themselves or with anyone else during recesses. Since there is no indication of any juror misconduct, we find that appellant has not shown that a hearing was necessary or that he was prejudiced in any way by this omission. We overrule appellant’s twenty-sixth proposition of law.

VIII

CUMULATIVE ERROR

Appellant argues in his twenty-eighth proposition of law that the cumulative effect of the errors in this case denied him a fair trial. Although a particular error might not constitute prejudicial error in and of itself, a conviction may be reversed if the cumulative effect of the errors deprives the defendant of a fair trial. State v. DeMarco (1987), 31 Ohio St.3d 191, 31 OBR 390, 509 N.E.2d 1256, paragraph two of the syllabus; State v. Moore (1998), 81 Ohio St.3d 22, 41, 689 N.E.2d 1, 18. We find that appellant received a fair trial and a fair sentencing determination. Accordingly, we reject appellant’s twenty-eighth proposition of law.

IX

INDEPENDENT SENTENCE REVIEW

Pursuant to R.C. 2929.05(A), we must independently review the facts and other evidence to determine whether the evidence supports the finding of the aggravating circumstances. Appellant was convicted of three aggravating circumstances: aggravated burglary, aggravated robbery, and kidnapping. However, since kidnapping merges into the aggravated robbery, there remain two aggravating circumstances to look at: aggravated burglary and aggravated robbery. After independent sentence assessment, we find that the evidence supports the aggravating circumstances. We now weigh the facts and evidence in the record to determine whether the aggravating circumstances of which appellant was convicted outweigh the mitigating factors beyond a reasonable doubt.

There is nothing mitigating in the nature and circumstances of the offense. After forcing his way into the apartment, appellant aimed his gun at Antwuan Gilliam and threatened to shoot him. Even though appellant’s cohort (Grant) told appellant not to shoot Gilliam, but to shoot Franklin, appellant made the conscious decision to shoot Gilliam. Gilliam pleaded for his life, but appellant merely said, “I don’t give a fuck about killing you,” and then pulled the trigger. This was a cold-blooded killing that has no mitigating features.

Appellant’s history, character, and background provide some mitigating weight. Various family members and relatives testified that appellant grew up in a poor, violent, and drug-ridden environment. They testified that appellant’s father abused him and his siblings by throwing them against a wall, beating them with his fists or a belt, shooting them with a BB gun, and waking them up for beatings. Due to his parents’ work schedule, appellant got little attention from his parents and was basically left to care for himself, with some supervision by his older sister. He began regularly using alcohol by age twelve. Appellant’s siblings described him as a follower, easily manipulated. His sister testified that he could never decide for himself between right and wrong but let others decide for him. Yet she also said that he “knows what happened is wrong,” and other family members testified that he knew right from wrong. Witnesses described appellant as quiet, polite, respectful, kind, and helpful, and relatives expressed great love for appellant. However, none of these facts is entitled to great weight in mitigation. Cf. State v. Cooey (1989), 46 Ohio St.3d 20, 41, 544 N.E.2d 895, 919; State v. Berry (1995), 72 Ohio St.3d 354, 364-365, 650 N.E.2d 433, 442-443.

With respect to the statutory mitigating factors, very few are present. Since the victim of the offense did not induce or facilitate it and because we do not believe that appellant was under duress, coercion, or strong provocation, the factors listed in R.C. 2929.04(B)(1) and (2) are inapplicable. The factors listed in R.C. 2929.04(B)(5) and (6) are inapplicable as well.

Under R.C. 2929.04(B)(3), we are asked to consider whether appellant, at the time the offense was committed, suffered from a mental defect causing him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Dr. Smalldon testified that appellant had a low IQ of eighty, near the borderline range of mild mental retardation, and that appellant has a personality disorder with antisocial and narcissistic features. These traits do not meet the criteria of mental diseases or defects under R.C. 2929.04(B)(3). However, they are entitled to some weight' under R.C. 2929.04(B)(7). State v. Keene (1998), 81 Ohio St.3d 646, 670, 693 N.E.2d 246, 265-266.

Under R.C. 2929.04(B)(4), the youth of the offender is a factor to be considered. However, this factor is entitled to little weight, since appellant was twenty-three years old when he committed the crime. See State v. Dunlap (1995), 73 Ohio St.3d 308, 319, 652 N.E.2d 988, 998; State v. Ballew (1996), 76 Ohio St.3d 244, 257, 667 N.E.2d 369, 382.

Under the catchall provision of R.C. 2929.04(B)(7), appellant’s alcohol-abuse problems are entitled to some weight. State v. Green (1993), 66 Ohio St.3d 141, 153, 609 N.E.2d 1253, 1263. Also, his low intelligence is a mitigating factor given slight weight under R.C. 2929.04(B)(7). See State v. Rojas (1992), 64 Ohio St.3d 131, 143, 592 N.E.2d 1376, 1387. Furthermore, Dr. Smalldon testified that appellant had exhibited a positive attitude when confined to the Department of Youth Services. In Smalldon’s opinion, appellant would probably continue to do well in an institutional setting such as jail. This is entitled to some weight in mitigation. However, contrary to appellant’s position, a lesser sentence given to his accomplice is not a mitigating factor because appellant was the principal offender in this case.

Based upon the foregoing, we find that the aggravating circumstances outweigh the mitigating factors present in this case beyond any reasonable doubt. The evidence revealed that appellant threatened Antwuan Gilliam during the course of a robbery involving drugs and shot him in the head even after Gilliam pleaded for his life. His actions merit the capital penalty to which he was sentenced. Furthermore, we find that the death penalty in this case is neither excessive nor disproportionate when compared with the penalty imposed in similar cases involving aggravated murder during an aggravated burglary and aggravated robbery. State v. Murphy (1992), 65 Ohio St.3d 554, 605 N.E.2d 884; State v. Slagle (1992), 65 Ohio St.3d 597, 605 N.E.2d 916; State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293.

Accordingly, the judgment of the trial court is affirmed, with the exception that we set aside appellant’s kidnapping convictions, which we hold merge with his aggravated robbery convictions.

Judgment affirmed.

Douglas, Resnick, Cook and Lundberg Stratton, JJ., concur. Moyer, C.J., and Pfeifer, J., concur in part and dissent in part.