[Cite as State v. Campbell, 90 Ohio St.3d 320, 2000-Ohio-183.]




              THE STATE OF OHIO, APPELLEE, v. CAMPBELL, APPELLANT.

                [Cite as State v. Campbell (2000), 90 Ohio St.3d 320.]

Criminal law — Aggravated murder — Death penalty vacated and cause

       remanded to trial court for further proceedings when trial court fails to

       comply with Crim.R. 32(A)(1) — When imposing sentence, trial court must

       address defendant personally and ask whether he or she wishes to make a

       statement in his or her own behalf or present any information in mitigation

       of punishment — Crim.R. 32(A)(1) applies to capital and noncapital cases

       — When trial court imposes sentence without first asking defendant

       whether he or she wishes to exercise right of allocution created by Crim.R.

       32(A), resentencing is required unless error is invited or harmless error.

1. Pursuant to Crim.R. 32(A)(1), before imposing sentence, a trial court must

       address the defendant personally and ask whether he or she wishes to make a

       statement in his or her own behalf or present any information in mitigation

       of punishment.

2. Crim.R. 32(A)(1) applies to capital cases and noncapital cases.

3. In a case in which the trial court has imposed sentence without first asking the

       defendant whether he or she wishes to exercise the right of allocution
      created by Crim.R. 32(A), resentencing is required unless the error is invited

      error or harmless error.

    (No. 98-980 — Submitted May 24, 2000 — Decided December 20, 2000.)

APPEAL from the Court of Common Pleas of Franklin County, No. 97CR-04-2020.

      Appellant, Alva E. Campbell, Jr., appeals his conviction of, and death

sentence for, the aggravated murder of Charles Dials.

      In 1972, Campbell was convicted of murder in the first degree under former

R.C. 2901.01 and sentenced to life imprisonment. Twenty years later, he was

paroled. In 1997, Campbell was arrested in Franklin County on a charge of

aggravated robbery. He was held at the Jackson Pike Jail pending arraignment.

      On April 2, 1997, Deputy Sheriff Teresa Harrison was assigned to take

Campbell to court, a task complicated by Campbell’s confinement to a wheelchair.

Two weeks before, jail doctors had wrongly diagnosed Campbell as having

“hysterical paralysis”; in fact, he was faking. Not knowing this, however, Harrison

placed Campbell in a van and drove him into downtown Columbus.

      Around 12:30 p.m., Charles Dials was paying a ticket at the traffic bureau of

the Franklin County Municipal Court.

      At about the same time, Deputy Harrison was parking the van in a loading

dock at the courthouse. Harrison got out of the van and began to assist Campbell.




                                         2
Suddenly, Campbell attacked her. He beat her severely, stole her service pistol,

and fled.

      Charles Dials had just left the traffic bureau and was driving west on Fulton

Street when Campbell ran outside.      Campbell dashed into the street, stopped

Dials’s truck, and pulled open the driver’s door. He told Dials, “I don’t want to

hurt you; just move over.” And Campbell drove off, with Dials his prisoner.

      Campbell drove to a K-Mart at Williams Road and South High Street. He

parked there and talked with Dials, telling him not to be nervous. Then he drove

back to Central Avenue, turned onto a side street, and parked near a factory.

There, Campbell took Dials’s money and made Dials exchange clothes with him.

      Next Campbell drove back to High Street, where he bought a forty-ounce

bottle of beer at a drive-through. He then returned to the K-Mart. There he sat

talking with Dials “probably a good 2 hours,” according to his confession.

      When a helicopter circled overhead, Campbell became nervous and turned

on the radio to hear the news. An announcer reporting on the escape mentioned

that Campbell had commandeered a red truck. Dials said, “That’s you, ain’t it?”

Campbell admitted it was, and they talked a while longer.

      Campbell then moved the truck behind the K-Mart, driving around the back

lot three times before he finally chose a parking space. He said, “Charlie, I got to

get another car.” Then he told Dials to “get on the floor board of his truck.” Dials


                                         3
obeyed, and Campbell shot him twice: once in the face and once in the neck. The

shots were fired from at least six inches away, but no more than two or three feet.

Campbell tried to cover the corpse with Dials’s coat.

      Campbell then drove around to K-Mart’s main lot and waited. While he sat

waiting, Katie Workman drove in. She parked near the truck and began to get out

of her car. As she opened her door, Campbell ran up to her car and put the gun to

her head. “Move over * * *,” he said. “I’ve just killed one man.” Workman

moved over, and Campbell screamed, “Give me your money, your keys.”

Workman threw her wallet and keys at Campbell and jumped out of the car.

Campbell immediately drove away and went to the nearby Great Southern

Shopping Center.

      Around 3:20 or 3:30 p.m., James Gilliam was parked outside the Body Fit

gym at the Great Southern, waiting for someone. When Campbell arrived, Gilliam

was sitting in his car with the door open. Campbell forced his way into the space

between Gilliam’s car and another car.

      Suddenly, Gilliam felt the car door pressing against his legs. Then he felt a

gun against his head and heard a man say: “[D]o you want to die? Get in the car

and move over.” Gilliam looked up and saw a man he later identified as Campbell.




                                         4
      Gilliam pushed the door back at Campbell and stood up. Campbell said,

“Get in the car and move over. I’ve done killed two people, and I’m not afraid to

do it again.” Gilliam backed away, then turned and ran.

      Gilliam’s keys weren’t in the ignition, so Campbell jumped back into

Workman’s car. He drove around for a while, at one point buying another forty-

ounce beer at a drive-through. Campbell drove off in haste, then abandoned the

car in an alley and fled on foot. Campbell hid in a tree, but the tree’s owner saw

and reported him. Police soon surrounded the tree.

            Seeing now that he was cornered, Campbell dropped the gun and

surrendered. At 9:00 p.m., detectives from the Columbus Police Department and

the Franklin County Sheriff’s Office interrogated him on videotape. He gave the

detectives a lengthy and detailed confession.

      Campbell was indicted on four counts of aggravated murder. Count One

charged aggravated murder under R.C. 2903.01(A) (prior calculation and design).

Counts Two through Four charged aggravated murder under R.C. 2903.01(B)

(felony-murder): Count Two was predicated on murder during an aggravated

robbery, Count Three on murder during a kidnapping, and Count Four on murder

during an escape. Each aggravated murder count carried four death specifications:

murder to escape detection, R.C. 2929.04(A)(3); felony-murder predicated on

aggravated robbery, R.C. 2929.04(A)(7); felony-murder predicated on kidnapping,


                                         5
R.C. 2929.04(A)(7); and having a prior murder conviction, R.C. 2929.04(A)(5).

The indictment contained ten other counts: four counts of aggravated robbery, two

counts of attempted kidnapping, and one count each of kidnapping, felonious

assault, escape, and having a weapon under disability.

      Campbell was convicted of all counts and specifications, but the trial judge

merged the (A)(3) specifications into the felony-murder specifications. Thus, only

three specifications were presented to the jury in the penalty phase.       After a

mitigation hearing, the jury recommended death.          The trial judge merged the

aggravated murder counts and sentenced Campbell to death on Count Three.

      This cause is now before this court upon an appeal as of right.

                              __________________

      Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,

Assistant Prosecuting Attorney, for appellee.

      David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate

Supervisor, Death Penalty Division, and Kelly Culshaw, Assistant State Public

Defender, for appellant.

                              __________________

      MOYER, C.J. Campbell raises twenty-three propositions of law for our

consideration.   Finding no infirmity attaching to his conviction, we affirm it.




                                         6
However, a procedural error in Campbell’s sentencing requires correction. We

must therefore remand this cause to the trial court for resentencing.

                     I. Failure to Advise of Right to Allocution

      In his first proposition of law, Campbell contends that the trial court violated

Crim.R. 32(A)(1) by sentencing him for aggravated murder without advising him

of his right to allocution. This proposition has merit.

      After the penalty phase, the trial court heard arguments from counsel, set a

sentencing date, and discussed procedures. The judge said: “I’ll * * * render my

decision and then I assume, once I’ve rendered my decision on [the aggravated

murder counts], then there will be a sentencing where you will be able to make

statements * * *.” (Emphasis added.) The prosecutor asked whether Campbell

would “have an allocution right before the Court announces its sentencing

decision.” Defense counsel stated: “After you’ve made your decision on Counts

One through Four, then I think we have a right to make a statement in allocution as

to the sentences on the other offenses.” (Emphasis added.)

      On April 3, 1998, the trial court sentenced Campbell to death on Count

Three. On that date, Crim.R. 32(A)(1) provided: “Before imposing sentence the

court shall afford counsel an opportunity to speak on behalf of the defendant and

also shall address the defendant personally and ask if he or she wishes to make a

statement in his or her own behalf or present any information in mitigation of


                                          7
punishment.”1 The trial court did not ask Campbell if he wished to make a

statement or present further information before sentencing him on Count Three.

      This omission clearly violated the requirements of Crim.R. 32(A)(1).

Pursuant to Crim.R. 32(A)(1), before imposing sentence, a trial court must address

the defendant personally and ask whether he or she wishes to make a statement in

his or her own behalf or present any information in mitigation of punishment.

Crim.R. 32(A)(1) applies to capital cases and noncapital cases. State v. Reynolds

(1998), 80 Ohio St.3d 670, 684, 687 N.E.2d 1358, 1372-1373.

      The state invokes the doctrines of invited error, waiver, and harmless error.

We examine each in turn.

                                       Invited Error

      The doctrine of invited error holds that a litigant may not “take advantage of

an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v.

Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph

one of the syllabus. The state contends that Campbell’s counsel invited the error

by stating: “After you’ve made your decision on [the capital counts], then I think

we have a right to make a statement in allocution as to the sentences on the other

offenses.”

      However, the record does not show that defense counsel “induced” or “was

actively responsible” for the trial court’s error. State v. Kollar (1915), 93 Ohio St.


                                          8
89, 91, 112 N.E. 196, 197. This court has found invited error when a party has

asked the court to take some action later claimed to be erroneous, or affirmatively

consented to a procedure the trial judge proposed. See, e.g., Hal Artz, 28 Ohio

St.3d at 28, 28 OBR at 89, 502 N.E.2d at 596, fn. 16; State ex rel. Lowery v.

Cleveland (1993), 67 Ohio St.3d 126, 128, 616 N.E.2d 233, 234; State v.

Wigglesworth (1969), 18 Ohio St.2d 171, 180-181, 47 O.O.2d 388, 393, 248

N.E.2d 607, 614.

      But defense counsel did not suggest, request, or affirmatively consent to this

procedure. It was the judge who first said he would sentence on the capital counts

before any allocution. At worst, counsel acquiesced. But invited error must be

more than mere “acquiescence in the trial judge’s erroneous conclusion.”

Carrothers v. Hunter (1970), 23 Ohio St.2d 99, 103, 52 O.O.2d 392, 394, 262

N.E.2d 867, 869.

                                           Waiver

      Alternatively, the state contends that Campbell’s failure to object at the

sentencing hearing waived the issue, which means that an error would be

cognizable only if it amounted to plain error. Ordinarily, a defendant does waive

an error if he has not objected to it at trial. See, e.g., State v. Williams (1977), 51

Ohio St.2d 112, 116-117, 5 O.O.3d 98, 101, 364 N.E.2d 1364, 1367; State v.

Campbell (1994), 69 Ohio St.3d 38, 40-41, 630 N.E.2d 339, 344-345.


                                          9
      However, in this context, we find the doctrine of waiver inapplicable.

Crim.R. 32(A)(1) specifically provides that before imposing sentence, “the court

shall * * * address the defendant personally” and inquire as to whether the

defendant wishes to exercise his or her right to allocution. The rule does not

merely give the defendant a right to allocution; it imposes an affirmative

requirement on the trial court to “ask if he or she wishes to” exercise that right.

      This court has “consistently required strict compliance with Ohio statutes

when reviewing the procedures in capital cases.” State v. Filiaggi (1999), 86 Ohio

St.3d 230, 240, 714 N.E.2d 867, 877, citing State v. Pless (1996), 74 Ohio St.3d

333, 658 N.E.2d 766, paragraph one of the syllabus.            Moreover, “[w]e have

repeatedly recognized that use of the term ‘shall’ in a statute or rule connotes the

imposition of a mandatory obligation unless other language is included that

evidences a clear and unequivocal intent to the contrary.” State v. Golphin (1998),

81 Ohio St.3d 543, 545-546, 692 N.E.2d 608, 611.

      Of course, once the trial court has asked the defendant if he or she wishes to

speak in allocution, he or she may waive the right to do so. But in the case at bar,

no evidence exists that the defendant knew he had a right to personally address the

court prior to sentencing.     Had the trial court strictly complied with Crim.R.

32(A)(1), the record would affirmatively show that Campbell had indeed known of

that right, thereby allowing him to choose whether to exercise it or not. But were


                                          10
we to find waiver in this case, where the record of the sentencing hearing is silent

as to the right of allocution, we would in effect be sanctioning a finding of waiver

in every case in which the trial court failed to comply with the duty imposed by the

rule.   We would thereby render Crim.R. 32(A)(1) merely advisory, in direct

contradiction to its express language.

                                      Harmless Error

        We have recognized that a trial court’s failure to address the defendant at

sentencing is not prejudicial in every case. In State v. Reynolds, supra, we found

such an omission to be harmless error because the defendant had made an unsworn

statement to the jury and sent a letter to the judge, and defense counsel had made a

statement to the judge on the defendant’s behalf. 80 Ohio St.3d at 684, 687 N.E.2d

at 1372.

        Citing Reynolds, the state contends that the trial court’s noncompliance with

Crim.R. 32(A)(1) here is also harmless. The state observes that the trial court had

already heard Campbell’s confession (in which Campbell had displayed some

remorse for killing Dials), Dr. Jeffrey Smalldon’s mitigation testimony (in which

Smalldon repeated some things Campbell had told him), and the penalty-phase

arguments of defense counsel. Moreover, the trial court held a special hearing a

week before imposing sentence at which defense counsel argued to the judge for

Campbell’s life.


                                          11
      Here, as in Reynolds, defense counsel did speak on Campbell’s behalf.

Unlike the defendant in Reynolds, however, Campbell made no unsworn statement.

Thus, the judge never heard Campbell personally appeal for his life.             His

videotaped confession was no substitute for a personal appeal to the judge. When

he confessed, Campbell was not speaking to a tribunal about to decide whether he

was to live or die.

      Nor was Dr. Smalldon’s repetition of facts Campbell had told him the equal

of Campbell’s personal plea. We have no basis for assuming that Campbell would

have said the same things to the judge that he said to the doctor. In any case,

Campbell’s words filtered through Smalldon could never have the same impact as

a plea from Campbell himself. Hence, this case is unlike Reynolds, and we reject

the state’s harmless-error claim. Campbell’s first proposition of law is sustained.

      In a case in which the trial court has imposed sentence without first asking

the defendant whether he or she wishes to exercise the right of allocution created

by Crim.R. 32(A), resentencing is required unless the error is invited error or

harmless error. Therefore, we remand this cause to the Franklin County Court of

Common Pleas with instructions to resentence Campbell on Count Three after

directly asking him “if he * * * wishes to make a statement in his * * * own behalf

or present any information in mitigation of punishment.” Crim.R. 32(A)(1).




                                         12
         We therefore hold that pursuant to Crim.R. 32(A)(1), before imposing

sentence, a trial court must address the defendant personally and ask whether he or

she wishes to make a statement in his or her own behalf or present any information

in mitigation of punishment, and that Crim.R. 32(A)(1) applies to capital cases as

well as noncapital cases. We further hold that in a case in which the trial court has

imposed sentence without first asking the defendant whether he or she wishes to

exercise the right of allocution created by Crim.R. 32(A), resentencing is required

unless the error is invited error or harmless error.

                  II. Failure to Advise of Right to Unsworn Statement

         R.C. 2929.03(D)(1) permits a capital defendant to make a penalty-phase

statement without oath or cross-examination. In his second proposition of law,

Campbell contends that the trial court had a legal obligation to inform him of that

right.

         No authority requires a trial court to inform a capital defendant of his right

to make an unsworn, penalty-phase statement. Crim.R. 32(A)(1) does not apply,

because an unsworn statement under R.C. 2929.03(D)(1) is not an allocution under

the rule. See Reynolds, 80 Ohio St.3d at 684, 687 N.E.2d at 1372.

         Nor do existing legal principles require the adoption of Campbell’s novel

theory. We have rejected the notion that a trial court must personally address a

capital defendant to determine whether he knowingly, intelligently, and voluntarily


                                           13
waived his right to present mitigating evidence. State v. Keith (1997), 79 Ohio

St.3d 514, 530, 684 N.E.2d 47, 62-63. (Such an inquiry is required when a

defendant seeks to waive the presentation of all mitigating evidence, State v.

Ashworth [1999], 85 Ohio St.3d 56, 706 N.E.2d 1231, but Campbell did not do

that.) We have also rejected the claim that a trial court must inform the defendant

of his right to testify at trial. State v. Bey (1999), 85 Ohio St.3d 487, 499, 709

N.E.2d 484, 497. Campbell’s claim is not supported by Keith or Bey. Campbell’s

second proposition of law is overruled.

                        III. Preclusion of Mitigating Factors

      In his third proposition of law, Campbell contends that the trial judge

precluded him from presenting evidence of two mitigating factors: (1) shortened

life expectancy due to physical illness and (2) voluntary intoxication.

                             Shortened Life Expectancy

      On February 13, 1998, Campbell filed a motion in the trial court requesting

that he be taken to a medical facility for a “chest CT.” (“CT” is an abbreviation for

“computed tomography.” Stedman’s Medical Dictionary [26 Ed.1995] 418.) He

attached to his motion a brief medical report dated October 9, 1997, signed by Dr.

Jeffrey L. Bory of the Corrections Medical Center, Columbus. Dr. Bory’s report

stated that X-rays of Campbell’s chest showed a “density” in the region of his right

lung and “faint nodular densities” in the left, and that “[t]he possibility of a


                                          14
malignant process cannot be excluded.” Dr. Bory recommended “[c]omparison to

a previous study if it exists”; failing that, he recommended that a chest CT be

performed on Campbell “for further evaluation of these findings.”

      The trial court held a hearing the same day the motion was filed. Campbell

argued that the CT was needed to determine the possible existence of a mitigating

factor, i.e., that Campbell was suffering from an illness that might shorten his life.

(Although the state contends that this is not a mitigating factor at all, we have

recognized that “consideration should be given under R.C. 2929.04[B][7] to the

probability that appellant will never be released from prison if sentenced to life in

prison.” State v. Bradley [1989], 42 Ohio St.3d 136, 149, 538 N.E.2d 373, 385.)

After hearing argument, the trial court denied the motion. Campbell contends that,

by denying him the requested examination, the court precluded him from placing a

mitigating factor before the jury.

      Due process may require that a defendant be provided with expert assistance

when necessary to present an adequate defense. State v. Mason (1998), 82 Ohio

St.3d 144, 149, 694 N.E.2d 932, 943, citing Ake v. Oklahoma (1985), 470 U.S. 68,

105 S.Ct. 1087, 84 L.Ed.2d 53. However, to show entitlement to such assistance,

the defense must make “a particularized showing (1) of a reasonable probability

that the requested expert would aid in his defense, and (2) that denial of the

requested expert assistance would result in an unfair trial.” Mason, syllabus. In


                                         15
making this determination, the court must consider “(1) the effect on the

defendant’s private interest in the accuracy of the trial if the requested service is

not provided, (2) the burden on the government’s interest if the service is provided,

and (3) the probable value of the additional service and the risk of error in the

proceeding if the assistance is not provided.” Mason, 82 Ohio St.3d at 149, 694

N.E.2d at 943.

      Here, Campbell submitted nothing to indicate that the results of a CT would

be likely to aid in his defense. Dr. Bory’s report showed nothing more than a

possibility that the growths on Campbell’s lung could be malignant. The mere

possibility that the CT could have had some value to the defense was not enough.

Mason, 82 Ohio St.3d at 150, 694 N.E.2d at 943; State v. Broom (1988), 40 Ohio

St.3d 277, 283, 533 N.E.2d 682, 691. The defense submission presented the trial

court with nothing more than speculation as to the likely value of the CT. This did

not amount to the “particularized showing” we spoke of in Mason.

      Campbell also failed to show that his physical health was likely to be a

critical issue in the penalty phase. The defense apparently hoped to alleviate the

jury’s possible fears concerning Campbell’s future dangerousness by showing that

Campbell would likely die in prison. But the jury had the power to ensure that

Campbell would die in prison, simply by sentencing him to life without possibility

of parole. Thus, the argument that Campbell would die in prison was available to


                                         16
the defense even without the CT. A court determining whether to grant a request

for expert assistance must consider “the availability of alternative devices that

would fulfill the same functions.” State v. Jenkins (1984), 15 Ohio St.3d 164, 15

OBR 311, 473 N.E.2d 264, paragraph four of the syllabus; Mason, supra, 82 Ohio

St.3d at 150, 694 N.E.2d at 943.

      Moreover, the state did not raise the issue of future dangerousness. Rather,

the defense raised lack of future dangerousness as a mitigating factor. Hence, this

case does not involve the “requirement that a defendant not be sentenced to death

‘on the basis of information which he had no opportunity to deny or explain.’ “

Skipper v. South Carolina (1986), 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d

1, 7, fn. 1, quoting Gardner v. Florida (1977), 430 U.S. 349, 362, 97 S.Ct. 1197,

1207, 51 L.Ed.2d 393, 404 (plurality opinion).

      Nor did denial of the CT appreciably increase the risk that the jury would err

in recommending the penalty. Without the CT, Campbell was still able to present

an impressive and substantial case in mitigation. Denial of the CT, therefore, did

not deprive Campbell of “the basic and integral tools necessary to ensure a fair

trial.” Mason, 82 Ohio St.3d at 149, 694 N.E.2d at 943.

      Moreover, even though the defense filed its motion a mere eleven days

before trial began, this motion was completely silent as to whether a CT would

delay the trial. The trial court was not informed regarding the time required to


                                        17
receive a CT report and whether a CT would suffice or whether further testing

might be necessary to permit a diagnosis and estimate of life expectancy.

      Applying Ake and Mason, we conclude that Campbell failed to make the

required showing that a reasonable probability existed that the requested chest CT

would aid in his defense and that deprivation of the requested assistance would

result in an unfair trial. We therefore reject Campbell’s claim that he had a

constitutional entitlement to have the CT performed.

                                   Voluntary Intoxication

      Campbell asked the trial court to instruct the jury in the penalty phase that

voluntary intoxication is a potential mitigating factor. See State v. Sowell (1988),

39 Ohio St.3d 322, 325, 530 N.E.2d 1294, 1300. The judge refused because he did

not find sufficient evidence of voluntary intoxication to raise a jury issue.

      We disagree with the trial judge’s reasoning. There was evidence that

Campbell drank forty ounces of beer during the offense. Whether or not he was

intoxicated according to any particular definition is beside the point. The fact that

he had a substantial amount of alcohol in his system was a circumstance of the

offense and was relevant to mitigation under both Lockett, infra, and R.C.

2929.04(B).

      However, a trial court is not required to instruct on specific nonstatutory

mitigating factors. See, e.g., State v. Goff (1998), 82 Ohio St.3d 123, 130-131, 694


                                          18
N.E.2d 916, 922-923; State v. Landrum (1990), 53 Ohio St.3d 107, 122, 559

N.E.2d 710, 727-728.        Certainly nothing in the penalty-phase instructions

precluded the jury from considering appellant’s alcohol consumption. In fact, the

trial court instructed the jury to consider, without limitation, “any other factors that

are relevant to the issue of whether the offender should be sentenced to death” as

mitigating factors. We have held repeatedly that such an instruction is sufficient to

allow the jury to consider all the mitigating evidence before it. Goff, supra;

Landrum, supra; State v. Scott (1986), 26 Ohio St.3d 92, 102, 26 OBR 79, 87-88,

497 N.E.2d 55, 64. Thus, the trial judge was correct in refusing to instruct

specifically on voluntary intoxication, even though “erroneous reasons were

assigned as the basis” for that refusal. Agricultural Ins. Co. v. Constantine (1944),

144 Ohio St. 275, 284, 29 O.O. 426, 430, 58 N.E.2d 658, 663.

      We reject both claims advanced under Campbell’s third proposition of law,

which is therefore overruled.

                             IV. Sufficiency of Evidence

      Campbell’s eighth proposition claims that the state’s evidence was legally

insufficient to support convictions on Count One.

      In reviewing a record for sufficiency, “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


                                          19
reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319,

99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560, 573; accord State v. Jenks (1991), 61

Ohio St.3d 259, 273, 574 N.E.2d 492, 503.

      Campbell argues that the state failed to prove aggravated murder under R.C.

2903.01(A) as charged in Count One of the indictment. Specifically, Campbell

contends that the state failed to prove prior calculation and design.

      We conclude that the jury could reasonably find that Campbell killed

Charles Dials with prior calculation and design.          Two items of evidence in

particular lead to this conclusion.

      First, Campbell admitted to his interrogators that he “lied to” Dials at the

outset of the kidnapping when he told Dials he did not want to hurt him. Thus, the

jury could reasonably infer that Campbell had already decided to kill Dials at the

very beginning of the crime.

      Campbell offers a different interpretation of this statement. He argues that

he meant only that “in retrospect, his statement to Dials became a lie after he shot

him.” Suffice it to say that the jury was free to reject this interpretation.

      Second, Campbell told Dials to get down on the floorboard of the truck, then

shot him twice at close range in the face and neck. This bespeaks a calculated,

execution-style murder. See State v. Palmer (1997), 80 Ohio St.3d 543, 570, 687

N.E.2d 685, 707-708.


                                           20
      In two recent cases, the firing of shots into a victim’s head at close range

was crucial evidence on the basis of which we affirmed jury findings of prior

calculation and design. Palmer, supra; State v. Goodwin (1999), 84 Ohio St.3d

331, 344, 703 N.E.2d 1251, 1263. And in State v. Keenan (1998), 81 Ohio St.3d

133, 689 N.E.2d 929, after kidnapping his victim and driving around holding him

at knifepoint, the defendant drove him to a remote area and ordered him to “tilt his

head back” before cutting his throat. “This sequence of events,” we held, “simply

is not consistent with a spur-of-the-moment killing.” 81 Ohio St.3d at 140, 689

N.E.2d at 939.

      Other factors also support a finding of prior calculation and design.

Campbell armed himself with Deputy Harrison’s pistol before he commandeered

Dials’s truck; the likelihood of violence in the kidnapping was commensurately

high. He carefully chose the site of the murder: his confession states that he

“drove around” the rear of the K-Mart “about three different times” before parking.

      Nor was this the sort of brief, explosive situation in which courts usually

find evidence of prior calculation and design to be insufficient. See, e.g., State v.

Reed (1981), 65 Ohio St.2d 117, 19 O.O.3d 311, 418 N.E.2d 1359; State v. Mulkey

(1994), 98 Ohio App.3d 773, 649 N.E.2d 897; State v. Davis (1982), 8 Ohio

App.3d 205, 8 OBR 276, 456 N.E.2d 1256. Dials did not frighten or provoke

Campbell. This was no “instantaneous eruption,” State v. Jenkins (1976), 48 Ohio


                                         21
App.2d 99, 102, 2 O.O.3d 73, 75, 355 N.E.2d 825, 828. The murder of Charles

Dials culminated a kidnapping that lasted over two hours. Cf. Keenan, supra;

State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 196, 616 N.E.2d 909, 918.

      We conclude that the record contains evidence sufficient to support the

jury’s finding of prior calculation and design. We therefore reject Campbell’s

claim of insufficient evidence.

      Under this proposition of law, Campbell also claims that the jury’s verdict of

guilty was against the manifest weight of the evidence.         See R.C. 2953.02.

However, his arguments regarding prior calculation and design are no more

persuasive in this context than they were in the context of his insufficiency claim.

This simply is not a case where “the jury clearly lost its way” and “the evidence

weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d

172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721.

      Campbell’s eighth proposition of law is overruled.

                                  V. Firearm Specification

      In his twenty-third proposition, Campbell contends that the state failed to

prove his guilt of the firearm specification to Count Seven (aggravated robbery of

Deputy Harrison).

      R.C. 2941.145 provides that “[i]mposition of a three-year mandatory prison

term upon an offender under division (D)(1)(a) of section 2929.14 of the Revised


                                          22
Code is precluded unless the indictment, count in the indictment, or information

charging the offense specifies that the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the offense and

displayed the firearm, brandished the firearm, indicated that the offender possessed

the firearm, or used it to facilitate the offense.”

       Campbell raises an issue of statutory construction. The theft offense that is

the basis of the Count Seven aggravated robbery charge was the theft of Harrison’s

service pistol. But Harrison’s pistol is also the firearm whose possession by

Campbell supports his conviction of the R.C. 2941.145 specification. Campbell

argues that the firearm specification “never applies when the firearm used for the

specification is the object of the theft itself, and when the stolen firearm is the only

firearm involved.”

       Campbell contends that when he stole Harrison’s gun, he did not have a

firearm on his person or under his control. That is clearly wrong. At the time he

took the gun, he was committing a theft, and he obviously had the gun “on or about

[his] person or under [his] control.”

       However, the R.C. 2941.145 specification also requires that the offender

must have “displayed” the firearm, “brandished” it, “indicated that [he] possessed”

it, “or used it to facilitate the offense.” Campbell did not use the gun “to facilitate”

the theft.


                                            23
      However, “the offense”—i.e., the aggravated robbery—includes the flight

immediately after the theft.      Aggravated robbery does not consist solely of

committing or attempting a theft offense while doing one of the acts listed in R.C.

2911.01(A)(1) through (3); it includes “fleeing immediately after the attempt or

offense” while committing one of those acts. R.C. 2911.01(A). Thus, if Campbell

did “display,” “brandish,” “use,” or “indicate that [he] possesse[d]” a “deadly

weapon” while fleeing immediately after he stole it from Harrison, he was engaged

in aggravated robbery during his flight. R.C. 2911.01(A)(1). And if that deadly

weapon was also a firearm for purposes of R.C. 2941.145, and Campbell used it

“to facilitate the offense”—which includes his flight—then it follows that he was

guilty of the firearm specification.

      The jury could infer that Campbell used the gun to commit the carjacking.

That means he used it to facilitate his flight immediately after the theft, which in

turn means he used it to facilitate the aggravated robbery. Therefore, he was

properly convicted of the firearm specification set forth in R.C. 2941.145. His

twenty-third proposition is overruled.

                              VI. Admissibility of Confession

      In his fourth proposition of law, Campbell claims that his confession was

involuntary, primarily because police abused him during his arrest. The trial court




                                         24
heard his motion to suppress the confession and denied it; Campbell contends that

the denial was erroneous.

      “In deciding whether a defendant’s confession is involuntarily induced, the

court should consider the totality of the circumstances * * *.” State v. Edwards

(1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph two of the

syllabus.   However, “ ‘police overreaching’ is a prerequisite to a finding of

involuntariness. Evidence of use by the interrogators of an inherently coercive

tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or

sleep) will trigger the totality-of-the-circumstances analysis.”   State v. Clark

(1988), 38 Ohio St.3d 252, 261, 527 N.E.2d 844, 854, quoting Colorado v.

Connelly (1986), 479 U.S. 157, 163, 107 S.Ct. 515, 520, 93 L.Ed.2d 473, 482.

      The totality of the circumstances includes “the age, mentality, and prior

criminal experience of the accused; the length, intensity, and frequency of

interrogation; the existence of physical deprivation or mistreatment; and the

existence of threat or inducement.” Edwards, supra, 49 Ohio St.2d 31, 3 O.O.3d

18, 358 N.E.2d 1051, paragraph two of the syllabus.

      In his confession, Campbell told detectives that when he was arrested, a

police officer sprayed Mace into his face, even though Campbell was helpless and

making no attempt to resist. According to Campbell, the same officer told him,

“When you go back to the Workhouse, you’re dead.” Moreover, Campbell told the


                                       25
detectives, another officer struck him three times in the head as he was being

transported to jail, then said, “If I wasn’t getting out of this van going back to my

car I’d whip your a* * in this van, what could you do about it?”

      During interrogation detectives tried to allay Campbell’s fears by pointing

out that police brutality is investigated by the internal affairs bureau, that there are

cameras in jails, and that officers “can’t do the sort of things that was done back 25

years ago.” They promised to keep him as safe as they could and pointed out that

“it looks bad for us” to have prisoners beaten.

      During the suppression hearing, Campbell introduced no evidence to

corroborate his videotaped accusations of police misconduct.

      The trial court made no express finding as to whether Campbell told the

truth about being mistreated during his arrest. However, the court did find that all

of the Edwards factors were in the state’s favor, specifically including “the

existence of physical deprivation or mistreatment.” Moreover, the trial court found

that Campbell “was more than willing” to confess, and that no pressure was put on

him to do so. We think it evident that the trial judge simply did not believe

Campbell’s assertions and did not believe any physical deprivation or mistreatment

occurred.

      Credibility determinations are made by the trier of fact, as much in a

suppression hearing as in the trial itself. State v. Fanning (1982), 1 Ohio St.3d 19,


                                          26
20, 1 OBR 57, 58, 437 N.E.2d 583, 584. Nothing in the record provides any basis

for overruling the trial judge’s credibility determination here.           Nothing

corroborates Campbell’s claim of mistreatment.

      The trial court found that Campbell “was not intoxicated * * *, having only

had one 40 oz. beer three hours prior” to the interrogation. This finding was based

both on Campbell’s statement and on the trial court’s viewing of the videotape,

which showed “no indication whatsoever” of intoxication.

      Campbell was interviewed at 9:00 p.m., more than five and one-half hours

after the latest time he could have consumed any beer. (The empty bottle was left

in Dials’s truck, which Campbell abandoned sometime between 2:30 and 3:30.)

Campbell argues that he may have had more than the single forty-ounce beer

mentioned in his confession, because two empty bottles were found in the truck.

But, in his highly detailed confession, Campbell said that he drank only one bottle;

he never mentioned drinking a second, and there is no evidence that he did.

(Campbell did say that he bought a second bottle of beer after killing Dials, but he

said he had no time to drink it. That bottle was later found in Katie Workman’s

car. It was unopened.) Thus, the record supports the trial court’s finding that

Campbell was not intoxicated.

      The court further found that Campbell “was aware of his Miranda Rights”

and that the interrogation was “moderate” in length and intensity and “friendly”


                                        27
and “congenial” in tone. Moreover, the trial court found that “there were no

threats or inducements whatsoever to the Defendant to make his statements.”

      The record supports the trial court’s findings and compels the conclusion

that police used no coercive tactics to obtain Campbell’s confession. Campbell’s

fourth proposition is therefore overruled.

                            VII. Prosecutorial Misconduct

      In his ninth proposition, Campbell raises numerous allegations of

prosecutorial misconduct.

                                         Voir Dire

      In voir dire, the prosecutor stated that aggravating circumstances were the

kinds of things that might make jurors feel that death was the appropriate penalty.

Campbell contends that the prosecutor thereby exposed the jury to nonstatutory

aggravating circumstances. But, see, State v. Tyler (1990), 50 Ohio St.3d 24, 32,

553 N.E.2d 576, 588. However, Campbell did not object, so the point is waived.

      The prosecutor did err slightly by stating that the aggravating circumstances

were “very similar” to the specifications. As Campbell notes, the R.C. 2929.04(A)

death specifications set forth in the indictment are the aggravating circumstances.

However, Campbell did not object to this misstatement at the time. Absent plain

error, this issue is also waived.




                                         28
      We find no plain error. The penalty-phase instructions correctly identified

the specific aggravating circumstances that the jury was required to weigh. The

prosecutor’s misstatement several days earlier in voir dire cannot be said to have

clearly determined the outcome of the penalty phase. See State v. Campbell,

supra, 69 Ohio St.3d at 51, 630 N.E.2d at 352.

      In death-qualifying the jury, the prosecutor asked veniremen whether they

would be able to impose death in this particular case if the state proved that

aggravation outweighed mitigation. We disagree with Campbell’s claim that this

was error. See State v. Rogers (1985), 17 Ohio St.3d 174, 178, 17 OBR 414, 418,

478 N.E.2d 984, 990; Tyler, 50 Ohio St.3d at 32, 553 N.E.2d at 588.

                                 Guilt-Phase Evidence

      Prosecution witness Ken Gangloff was the municipal court cashier to whom

Dials paid his fine. In his testimony, Gangloff read Dials’s height, weight, and

birthdate from Dials’s ticket. He quoted Dials as saying that he paid late because

he “just now got the money together.” He also characterized Dials as “a very well-

mannered, nice young man.” Appellant contends that this testimony was victim-

impact evidence improperly adduced in the guilt phase. See Tyler, supra, 50 Ohio

St.3d at 35-36, 553 N.E.2d at 591.

      However, at trial Campbell objected only to Gangloff’s statement that Dials

was a nice, well-mannered young man. The trial court sustained that objection and


                                        29
told the jury, “It’s not relevant.” Thus, the error was cured. Campbell did not

object to, and hence waived any objection to, Gangloff’s other testimony.

                                   Guilt-Phase Arguments

         Campbell identifies four instances of alleged prosecutorial misconduct in the

guilt-phase closing argument. However, he did not object at trial to any of the

arguments he complains of now and thus cannot prevail absent plain error. None

of the instances of alleged misconduct, either singly or cumulatively, was serious

enough to show that the verdict clearly would have been otherwise but for the

error.

                              Penalty-Phase Cross-Examination

         Campbell contends that the state improperly cross-examined his

psychological expert, Dr. Jeffrey Smalldon, by eliciting (over defense objections)

facts about the murder of Dials, including crimes against Katie Workman, and

about a 1967 conviction resulting from Campbell’s shooting a state trooper.

         However, Smalldon’s direct examination discussed the facts of the Dials

murder and the shooting of the trooper. In fact, Smalldon repeated Campbell’s

claim that he had not shot the trooper. The court therefore properly overruled

Campbell’s objections to the cross-examination.

         Campbell complains that the state diminished the mitigating value of his

antisocial personality disorder by eliciting Smalldon’s testimony that many people


                                           30
suffer from antisocial personality disorder yet do not commit crimes. However,

since the defense had raised the disorder as a mitigating factor, the prosecutor

could explore what mitigating value the disorder might have, and his question

related to that issue.

       Finally, Campbell complains that the state elicited that Campbell was

currently ineligible for parole (that is, on his life sentence for the prior murder)

until 2085. Campbell argues that this was improper because it suggested that a life

sentence would not be any additional punishment in this case. Campbell does not

explain why that is improper, however.

                             Penalty-Phase Closing Arguments

       The defense introduced evidence of Campbell’s good behavior in prison and

argued to the jury that it was mitigating. The state countered by arguing that

Campbell’s main concern was to get out of prison, that Campbell had behaved well

because he hoped for parole but could not be counted on to do so if facing a life

sentence with little likelihood of parole.

       In making this point, the prosecutor reminded the jury that Campbell already

had a life sentence with a parole-eligibility date of 2085 (assuming revocation of

his current parole). The state argued that since Campbell would have no hope of

parole, he was unlikely to adjust well to prison life, regardless of what he had done

during his earlier incarceration.


                                             31
      Campbell contends that the state’s argument improperly “converted

Campbell’s good behavior in prison against him.” We disagree. This is a dispute

about what inferences the jury should draw from the facts adduced at the

mitigation hearing. The defense asked the jury to infer that Campbell’s previous

good prison conduct said something good about his character. The state had an

equal right to argue that it did not, but simply represented an effort to win his

freedom.

      Campbell waived nearly all of the errors alleged in this proposition of law.

Those preserved at trial lack merit. Accordingly, Campbell’s ninth proposition is

overruled.

                              VIII. Change of Venue

      In his fifth proposition, Campbell contends that pretrial publicity so

pervaded the community that a fair trial was impossible; therefore, the trial court

should have ordered a change of venue sua sponte. However, Campbell waived

this issue by failing to request a change of venue. State v. Chandler (1984), 19

Ohio App.3d 109, 112, 19 OBR 197, 200, 483 N.E.2d 192, 196. See, generally,

State v. Williams, supra, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.

                      IX. Ineffective Assistance of Counsel

      In his sixth proposition of law, Campbell contends that his trial counsel

rendered ineffective assistance. To prevail, he must show deficient performance,


                                        32
i.e., performance falling below an objective standard of reasonable representation,

and prejudice, i.e., a reasonable probability that but for counsel’s errors, the result

of the proceeding would have been different. Strickland v. Washington (1984),

466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693,

698. See, also, Williams v. Taylor (2000), 529 U.S. 362, ___, 120 S.Ct. 1495,

1511-1512, 146 L.Ed.2d 389, 416; State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373.

      Campbell contends that his attorneys were deficient in failing to move for

change of venue. However, the record before us does not show the pervasive

publicity about which Campbell complains. (The appendix to Campbell’s brief

includes newspaper stories concerning the crime. These are outside the record, and

we cannot consider them. See State v. Phillips [1995], 74 Ohio St.3d 72, 80, 656

N.E.2d 643, 655, quoting State v. Ishmail [1978], 54 Ohio St.2d 402, 8 O.O.3d

405, 377 N.E.2d 500, paragraph one of the syllabus.) Hence, on direct appeal, we

can evaluate neither the performance of Campbell’s attorneys nor the prejudice that

may have resulted from their failure to request a change of venue.

      Campbell accuses his counsel of “disparaging” him by placing “undue

emphasis on the aggravated murder” at voir dire and describing it in such terms as

“terrible,” “horrendous,” “gruesome,” “senseless.”       However, it is difficult to

discuss this crime without using such words. Even Campbell’s present counsel, in


                                          33
their brief, call it “infamous,” “sordid,” and “horrible.” Campbell’s counsel may

have sought to impress the jury with their candor, hardly an unreasonable tactic.

      The defense strategy throughout was to offer no defense and concentrate on

saving Campbell’s life. A number of Campbell’s complaints about counsel’s

performance stem from this strategy. Thus, its rationality must be evaluated.

      “Concessions of guilt, in any form, are among the most troublesome actions

a defense counsel can [t]ake * * *.” State v. Goodwin (1999), 84 Ohio St.3d 331,

336, 703 N.E.2d 1251, 1258.       Nevertheless, such concessions are not per se

ineffective but must be analyzed under Strickland for deficiency and prejudice.

See Goodwin at 336-339, 703 N.E.2d at 1258-1260.

      Campbell’s guilt was clear. He confessed at length; defense counsel tried to

suppress that confession, but failed. Corroborating evidence sealed his guilt. Dials

was shot with the same gun Campbell had stolen from Harrison less than three

hours before. Campbell’s palm print was found in Dials’s truck. Campbell told

Katie Workman that he had “just killed one man.”

      Campbell’s counsel stated that he had discussed the trial strategy with

Campbell, and that Campbell would have pleaded guilty had the law allowed him

to try the penalty phase to a jury after such a plea. Since Campbell had to undergo

a jury trial on guilt to get one on penalty, counsel tried “to maintain * * *

credibility with this jury” by “let[ting] them know that we’re not contesting the


                                         34
charges.”     In closing argument, counsel emphasized that Campbell “accepts

responsibility for what he did.”

      However, Campbell contends that his lawyers abandoned available defenses.

First, he contends that they should have contested the issue of prior calculation and

design.     Although counsel did not expressly concede the existence of prior

calculation and design, nor did they argue that the state had failed to prove it.

(They did ask for an instruction on murder as a lesser included offense, but it was

refused.) Campbell contends that had counsel contested prior calculation and

design, he might have been acquitted of aggravated murder on Count One.

      To the contrary, however, we conclude that it would have been difficult to

raise a reasonable doubt as to prior calculation and design. Campbell confessed

that he “lied to” Dials when he said he would not hurt him. Moreover, he told

Dials to get on the floorboard before shooting him twice in the head at close range.

      But even had the suggested strategy had any chance of prevailing as to

Count One, it would have done no good at all on the three felony-murder counts,

for prior calculation and design was not an element of those counts.            Thus,

counsel’s strategy was rational. Moreover, counsel discussed in advance with

Campbell the strategy of not contesting guilt. Even where counsel admits his

client’s guilt, the client “can hardly complain that his counsel was ineffective if he




                                         35
freely and knowingly consented to the trial strategy.” Wiley v. Sowders (C.A.6,

1982), 669 F.2d 386, 389.

      In addition to showing that his counsel pursued a professionally

unreasonable strategy, Campbell must show that the errors of his counsel

prejudiced him. That he cannot do. Count One was merged into the felony-

murder counts, and thus cannot be a source of prejudice. Prior calculation and

design was not an issue as to the felony-murder counts, so the failure to contest it

was not prejudicial as to them.

      Campbell also contends that his counsel could have argued voluntary

intoxication because Campbell drank a forty-ounce beer before shooting Dials.

But voluntary intoxication negates intent only where it renders the defendant

unable to form intent. State v. Fox (1981), 68 Ohio St.2d 53, 54-55, 22 O.O.3d

259, 260, 428 N.E.2d 410, 411-412; see, also, State v. Jackson (1972), 32 Ohio

St.2d 203, 206, 61 O.O.2d 433, 434, 291 N.E.2d 432, 433, quoting Wertheimer,

The Diminished Capacity Defense to Felony-Murder (1971), 23 Stanford L.Rev.

799, 805. The guilt-phase evidence leaves no room for doubt that this was an

intentional killing. Moreover, Campbell never claimed in his confession that he

was drunk during the crime, and nothing in the record supports his present claim

that he “may have consumed more than one” bottle of beer. The record does not




                                        36
show that counsel either performed deficiently or prejudiced Campbell by failing

to pursue a voluntary-intoxication defense.

      Campbell contends that counsel’s voir dire statements prejudged his guilt.

Yet the statements were consistent with counsel’s strategy of conceding guilt and

trying to save Campbell’s life, and were not prejudicial.

      Campbell also contends that it was ineffective assistance for his counsel to

try the R.C. 2929.04(A)(5) specification (prior murder conviction) to the jury

instead of the judge.2 But that too was consistent with counsel’s strategy. Since

guilt was not contested, jury knowledge of the prior murder could not harm

Campbell in the guilt phase.

      Campbell complains that his trial counsel failed to cross-examine several

witnesses. But “[t]rial counsel need not cross-examine every witness * * *. The

strategic decision not to cross-examine witnesses is firmly committed to trial

counsel’s judgment * * *.” State v. Otte (1996), 74 Ohio St.3d 555, 565, 660

N.E.2d 711, 721.

      In particular, Campbell complains that his counsel did not cross-examine Dr.

Fardal, the coroner, on his “inconsistent” testimony that Dials died of two gunshot

wounds even though one of the wounds “by itself would not be considered a fatal

wound.” But Fardal’s testimony was not inconsistent: he attributed Dials’s death

to both gunshot wounds but noted that one of them (though “a potential fatal


                                         37
injury”) would not have been immediately fatal by itself, while the other one would

have been.     Nor does Campbell explain how exploring this “inconsistent”

testimony would have helped his case. Since Campbell fired both shots, it made

no difference which one was fatal.

      Campbell contends that his counsel were ineffective because they failed to

object to alleged prosecutorial misconduct and instructional errors. However, in

one instance counsel did object. As for the others, no valid objections were

available under existing law.

      Campbell contends that his counsel should have objected to the prosecutor’s

argument.    However, a reasonable attorney may decide not to interrupt his

opponent’s closing argument. See State v. Keene (1998), 81 Ohio St.3d 646, 668,

693 N.E.2d 246, 264.

      Campbell contends that his counsel should not have discussed penalty in

their guilt-phase closing argument. Although punishment is not the issue in the

guilt phase, the argument was not an error by counsel but part of a consciously

adopted, rational strategy to concentrate on saving Campbell’s life.

      Campbell contends that counsel pursued a counterproductive penalty-phase

strategy. He cites their introduction of Defense Exhibit B, a videotape showing the

precautions the Franklin County Jail was taking to prevent another escape.

According to Campbell, the video raised the issue of future dangerousness.


                                         38
However, given the facts, counsel could reasonably fear that future dangerousness

would be on the jurors’ minds no matter what. Hence, it was logical to try to allay

that concern by showing that precautions can be taken to prevent Campbell from

making another escape.

      Next, he argues that the defense should not have introduced Campbell’s

prison records. However, Dr. Smalldon consulted and relied upon those records in

diagnosing Campbell. Campbell does not contend that the defense should have

dispensed with Smalldon’s testimony, which was critical to the case for life, just to

keep his prison records out of the trial.

      Next, he argues that no rational attorney would attempt to present good

behavior in prison as a mitigating factor in a case like this, where the murder was

committed after the defendant’s escape from jail.       We disagree.     Reasonable

attorneys could easily conclude that no legitimate mitigating factor should be

withheld from the jury.

      Next, he argues that counsel’s attempt to shift blame to Deputy Harrison

alienated the jury. This speculative argument does not establish prejudice.

      Next, he claims that defense counsel failed to prepare Dr. Smalldon

adequately as a witness.       Smalldon admitted that he diagnosed Campbell’s

personality disorder before he had reviewed all pertinent records. But it is not

clear that this was counsel’s fault. Smalldon was the expert psychologist, and he,


                                            39
not counsel, was qualified to decide when he had adequate information to make a

diagnosis.

       Next, Campbell claims that the record does not show that counsel advised

him to make an unsworn statement. But neither does it show that they failed to. It

is Campbell’s burden to “show that counsel’s performance was deficient.”

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Moreover, we

cannot say that it is always best for a defendant to make an unsworn statement, and

Campbell fails to explain why his counsel should have advised him to do so here.

       Finally, Campbell complains that his counsel failed to correct the trial

court’s misapprehension that Campbell had no right to allocution on the capital

counts. Our disposition of his first proposition of law negates any prejudice from

this error.

       Campbell’s sixth proposition of law is overruled.

                            X. Guilt-Phase Instructions

       In his sixteenth proposition, Campbell asserts that the trial court erred by

refusing to instruct on murder as a lesser included offense of Count One,

aggravated murder with prior calculation and design.

       R.C. 2903.02, murder, is a lesser included offense of R.C. 2903.01(A),

aggravated murder with prior calculation and design. State v. Spirko (1991), 59

Ohio St.3d 1, 33, 570 N.E.2d 229, 263. But a court must charge on a lesser


                                         40
included offense “only where the evidence presented at trial would 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, 533 N.E.2d 286,

paragraph two of the syllabus. Given that there is sufficient evidence to prove that

Campbell killed Dials with prior calculation and design, it was not error to deny a

jury instruction on the lesser included offense of murder. Campbell’s sixteenth

proposition, therefore, is overruled.

      In his tenth proposition of law, Campbell contends that the trial court’s

instruction on aggravated murder was circular because the instruction defined prior

calculation and design in terms of purpose. Campbell contends that, in effect, this

instruction told the jury to convict him of aggravated murder if it found that he

killed purposefully.

      Campbell’s argument is incorrect. The instruction cannot be reasonably

understood as equating prior calculation and design with purpose. The instructions

made it clear that “prior calculation and design” is more than simply purpose, with

language such as this:

      “A person acts with prior calculation and design when by engaging in a

definite process of reasoning he forms a purpose to kill and plans the method he

intends to use to cause death.




                                        41
      “The circumstances surrounding the homicide must show a scheme designed

to carry out the calculated decision to cause the death. No definite period of time

must elapse and no particular amount of consideration need be given, but acting on

the spur of the moment or after momentary consideration of the purpose to cause

death is not sufficient.” (Emphasis added.)

      These instructions make clear to any reasonable juror that purpose to kill is

not the same thing as prior calculation and design and does not by itself satisfy the

mens rea element of R.C. 2903.01(A). Therefore, Campbell’s tenth proposition is

overruled.

      In the guilt phase, the trial court instructed the jury: “You may not discuss or

consider the subject of punishment. Your duty is confined to the determination of

the guilt or innocence of the Defendant.” (Emphasis added.) In his fifteenth

proposition, Campbell contends that this instruction asked the jury to determine

whether Campbell was innocent, when it should have been considering only

whether the state had proved him guilty. According to Campbell, this shifted the

burden of proof from the state to him. However, Campbell did not object at trial.

This waived the alleged error. See, generally, State v. Long (1978), 53 Ohio St.2d

91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph one of the syllabus.




                                         42
      No plain error exists here. An instruction “must be viewed in the context of

the overall charge.” State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398

N.E.2d 772, paragraph four of the syllabus.

      The trial court instructed that Campbell was “presumed innocent unless and

until his guilt is established beyond a reasonable doubt,” and “must be acquitted *

* * unless the State produces evidence which convinces you beyond a reasonable

doubt of every essential element of the offense.” (Emphasis added.) Further, the

trial court instructed the jury, as to each individual offense and each specification,

to convict if it found that “the State of Ohio has proved beyond a reasonable doubt

all of the elements of the offense,” and to acquit if it found that “the State of Ohio

has failed to prove beyond a reasonable doubt any of the elements of the offense.”

In explaining the verdict forms, too, the trial court repeatedly told the jury that it

must find that the state had proved Campbell’s guilt in order to convict and must

return a verdict of not guilty if the state failed to prove any element.

      The jury must be presumed to have followed these instructions. Hence,

Campbell cannot show that the jury’s verdict clearly would have been different but

for the alleged error. As a result, plain error does not exist. Long, supra, at

paragraph three of the syllabus. Campbell’s fifteenth proposition is therefore

overruled.




                                           43
      The trial court instructed that purpose to kill “may be inferred from the use

of” a deadly weapon. In his seventeenth proposition, Campbell contends that

former R.C. 2903.01(D) required the trial court to tell the jury specifically that this

inference was nonconclusive. That statute provided:

      “If a jury in an aggravated murder case is instructed that a person who

commits or attempts to commit any offense listed in division (B) of this section

may be inferred, * * * because the offense and the manner of its commission would

be likely to produce death * * *, to have intended to cause the death of any person

who is killed * * * during the commission of, attempt to commit, or flight from the

commission of or attempt to commit the offense, the jury also shall be instructed

that the inference is nonconclusive * * *.” (Emphasis added.) Am.Sub.S.B. No.

239, 146 Ohio Laws, Part VI, 10425.

      Former R.C. 2903.01(D) does not apply, since the trial court never instructed

that the jury could infer purpose to kill from the commission of an underlying

felony in a manner likely to produce death. See State v. Phillips (1995), 74 Ohio

St.3d 72, 100, 656 N.E.2d 643, 668.

      Moreover, Campbell never requested such an instruction or called the

alleged error to the trial court’s attention. Hence, any error is waived. Finding no

plain error, we therefore overrule Campbell’s seventeenth proposition of law.

                           XI. Penalty-Phase Instructions


                                          44
       In its penalty-phase instructions, the trial court listed the nature and

circumstances of the offense among the mitigating factors that the jury could

consider. In his twentieth proposition, Campbell contends that the instruction was

erroneous because he had not claimed that the nature and circumstances of the

offense were mitigating factors in this case. According to Campbell, Lockett v.

Ohio (1978), 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973,

990, forbids the sentencer to consider any mitigating factor other than those the

defendant chooses to proffer.

       Campbell did not object to the instruction. Hence, he has waived this issue.

State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. This

proposition of law must therefore be overruled.

       In his eighteenth proposition, Campbell argues that the trial court denied him

due process and violated the Eighth Amendment by instructing the jury to consider

in the penalty phase “any evidence relevant to the aggravating circumstance raised

at trial.”

       Although    we   have    recognized    that   R.C.   2929.03(D)(1)    permits

reintroduction of much or all of the guilt-phase evidence, State v. Woodard (1993),

68 Ohio St.3d 70, 78, 623 N.E.2d 75, 81, we have also recognized that some guilt-

phase evidence should be excluded as irrelevant to the penalty determination.

State v. Getsy (1998), 84 Ohio St.3d 180, 201, 702 N.E.2d 866, 887. Thus, a trial


                                         45
court’s admission of all guilt-phase evidence en bloc is error, for “it is the trial

court’s responsibility, during the penalty phase, to identify and admit only the

evidence relevant to that phase.” State v. Lindsey (2000), 87 Ohio St.3d 479, 485,

721 N.E.2d 995, 1003.

      However, during the penalty phase, Campbell specifically objected only to

the photos of the truck with Dials’s body in it. Thus, he waived any objection to

the readmission of other guilt-phase evidence.

      We find that the photos were relevant to the felony-murder aggravating

circumstances.    Therefore, “[w]hile the trial court should have exercised its

responsibility to determine the relevance of the evidence admitted, the evidence

contested was neither irrelevant nor prejudicial to the penalty phase.”          Id.

Campbell’s eighteenth proposition is overruled.

                             XII. Sentencing Opinion

      In his nineteenth proposition, Campbell contends that his death sentence

should be reversed because of flaws in the trial court’s sentencing opinion.

      The trial court noted that Campbell’s siblings, who survived the same

abusive environment he did, grew up to be law-abiding citizens. Also, the court

noted that many people who, like Campbell, have an antisocial personality disorder

do not become criminals and can function in society. Campbell argues that such

comparisons are improper. We disagree. See State v. White (1999), 85 Ohio St.3d


                                         46
433, 450, 709 N.E.2d 140, 157; State v. Waddy (1992), 63 Ohio St.3d 424, 452,

588 N.E.2d 819, 839.

      The trial court stated that Campbell “has now taken the life of a second

individual in cold blood, and this Court shall not give the Defendant the

opportunity to take a third.”         Campbell claims that this improperly gave

aggravating weight to future dangerousness, which is not a statutory aggravating

circumstance and therefore cannot be weighed against a defendant. We think he

misreads the sentencing opinion.          The trial court’s statement referred to

Campbell’s prior murder conviction. That conviction is a statutory aggravating

circumstance, and one that the state pleaded and proved in this case. Moreover,

Campbell’s mitigation case rested largely on the likelihood of his making a good

adjustment to prison life, and the court’s statement was also relevant as the

negation of that mitigating factor.

      The trial court noted that Campbell “could offer no justification for shooting

Charles Dials.” Campbell points out that mitigating circumstances do not concern

culpability or legal justification; indeed, an act committed with legal justification is

not a crime. However, the sentencing opinion as a whole does not give the

impression that the court believed Campbell’s proffered mitigation deserved

weight only if it constituted a legal justification for killing Dials. Cf. Eddings v.




                                          47
Oklahoma (1982), 455 U.S. 104, 112-113, 102 S.Ct. 869, 876, 71 L.Ed.2d 1, 9-10.

To the contrary, the opinion carefully considered Campbell’s proffered mitigation.

       The trial court did err in using the word “justification.” For clarity’s sake,

trial courts should avoid the word “justify” and its derivatives when discussing

mitigating evidence in capital sentencing opinions. However, our independent

reweighing of aggravation and mitigation can cure this verbal error.

       In considering Campbell’s claim that alcohol was a factor in the murder, the

trial court stated that Campbell “only consumed one forty-ounce (40 oz.) bottle of

beer over several hours.” Campbell interprets this as a finding that he “slowly

sipped a single beer over a matter of hours” and contends that there is no evidence

to this effect.

       However, the trial court did not say Campbell “slowly sipped” the beer.

Moreover, what the court did say has support in the record. Campbell said that,

after buying the beer, he sat in the K-Mart parking lot “a good 2 hours” before

killing Dials.

       Campbell contends that the trial court considered nonstatutory aggravating

circumstances: the assault on Deputy Harrison, the deliberate faking of paralysis,

and the “cold-blooded, senseless” nature of Dials’s murder.

       The assault on Harrison was part of Campbell’s escape, which was charged

as an aggravating circumstance. R.C. 2929.04(A)(3). However, the trial court


                                         48
chose to merge the (A)(3) specification into the two felony-murder specifications.

Campbell contends that the assault on Harrison and faking of paralysis thus

became irrelevant. However, both facts remained relevant, because they tended to

refute the defense contention that Campbell was capable of making a good

adjustment to prison.

      As for the “cold-blooded, senseless” nature of the murder, the murder is part

of the felony-murder aggravating circumstance. Hence, the nature of the murder

goes to the nature and circumstances of the (A)(7) aggravating circumstance.

      Campbell contends that the trial court “improperly converted evidence of

Campbell’s good prison behavior against him.” We disagree. The judge was

explaining why he did not find that behavior impressive as a mitigating factor.

      Campbell’s nineteenth proposition is overruled.

                           XIII. Gruesome Photographs

      In his fourteenth proposition, Campbell contends that the state improperly

introduced gruesome photographs at trial. In capital cases, such photographs are

inadmissible unless their probative value outweighs the danger of unfair prejudice,

or the photographs are repetitive or cumulative. See, e.g., State v. Morales (1987),

32 Ohio St.3d 252, 258, 513 N.E.2d 267, 274.          However, whether to admit

photographs alleged to be gruesome is within the trial court’s discretion; hence, we

will not reverse the trial court’s decision unless it amounts to an abuse of that


                                        49
discretion. State v. Maurer (1984), 15 Ohio St.3d 239, 265, 15 OBR 379, 401, 473

N.E.2d 768, 791.

      Campbell cites six photos as improper: State’s Exhibits 17A, 17C, and 17D

(crime scene) and 25A, 25B, and 25C (autopsy). Exhibit 17A, taken from the

driver’s side of the truck, shows Dials’s body. His back is to the camera. The

photo shows no wounds and little blood. It is not gruesome. Nor is 17D, which

shows a few droplets of blood on the truck window. Exhibit 17C is somewhat

gruesome, but not cumulative. It shows Dials’s body from the passenger side; a

large amount of blood is visible, but no wounds can be seen. Exhibit 17C also

shows a coat draped over part of Dials’s body, which corroborates the confession

and is not clearly shown in 17A.

      Exhibit 25A is gruesome, but it is the only one showing the entrance wound

in Dials’s neck. Both 25B and 25C show the wound below Dials’s right eye.

Exhibit 25B shows Dials’s face as it came to the morgue, covered with blood. It is

gruesome, but gives the clearest idea of the severity of the wound, and it is the only

photo of Dials’s face with blood on it. Exhibit 25C shows Dials’s face after the

blood was washed off; unlike 25B, it clearly depicts the stippling near the wound

that indicates a shot fired at close range.      Exhibits 25B and 25C were not

cumulative or repetitive: each shows something the other does not.




                                         50
         Campbell contends that his offer to stipulate to the victim’s identity and

cause of death stripped the photographs of probative value. He is wrong. Maurer,

supra, 15 Ohio St.3d at 265, 15 OBR at 401-402, 473 N.E.2d at 792.

         The trial court did not abuse its discretion in admitting the photos at issue

here. Each photo had sufficient probative value to outweigh its prejudicial effect,

and they were not repetitive or cumulative. Therefore, we overrule Campbell’s

fourteenth proposition.

                       XIV. Proceedings in Defendant’s Absence

         In his twelfth proposition, Campbell asserts that his due process right to be

present at all critical stages of trial was violated when the trial court answered a

question from the jury in Campbell’s absence.

         A note from the jury asked for clarification of a term in Count Seven,

aggravated robbery.       The judge discussed the question with counsel for both

parties, determined the answer, and answered the question by return note.

Campbell’s attorney consented to this being done without Campbell returning to

court.

         A defendant has a Fourteenth Amendment due process right to be present at

every critical stage of his trial. Snyder v. Massachusetts (1934), 291 U.S. 97, 54

S.Ct. 330, 78 L.Ed. 674. The question is whether “his presence has a relation,




                                           51
reasonably substantial, to the fulness of his opportunity to defend against the

charge.” Id. at 105-106, 54 S.Ct. at 332, 78 L.Ed. at 678.

      Campbell had no right to be present at the legal discussion of how the

question should be answered. United States v. Moore (C.A.7, 1991), 936 F.2d

1508, 1523. Nor did he have a right to be present when the judge sent the note to

the jury room. Although the oral delivery of jury instructions in open court is a

critical stage of trial, see Wade v. United States (C.A.D.C.1971), 441 F.2d 1046,

the trial court here did not instruct the jury in open court; instead, he sent a note. A

defendant benefits from his presence, and may be harmed by his absence, when

instructions are given in open court. See id. at 1050. But these potential benefits

and harms do not exist when the judge merely sends a note to the jury room. We

therefore hold that the sending of the note was not a critical stage of the trial.

Campbell’s twelfth proposition is overruled.

                              XV. Vagueness Challenge

      In his eleventh proposition, Campbell argues that the term “serious physical

harm,” as defined by R.C. 2901.01(A)(5)(a), is unconstitutionally vague, because it

includes “any mental illness or condition of such gravity as would normally require

hospitalization or prolonged psychiatric treatment.” The guilt-phase instruction

defining “serious physical harm” included this allegedly vague definition. Since

the jury was instructed that serious physical harm is an element of kidnapping,


                                          52
aggravated robbery, and felonious assault, Campbell contends that his convictions

must be reversed as to all felonious assault, kidnapping, and aggravated robbery

counts, and all felony-murder counts and specifications based on aggravated

robbery and kidnapping.

        However, Campbell did not challenge the alleged vagueness and

overbreadth of the statute at trial. Hence, the issue was waived. Campbell’s

eleventh proposition is overruled.

                                XVI. Settled Issues

        In his thirteenth proposition, Campbell contends that double jeopardy

principles preclude punishing him for both felony-murder and the underlying

kidnapping, where the state relies upon the victim’s murder to satisfy the “serious

physical harm” element of kidnapping.        However, it is well established that

“felony-murder under R.C. 2903.01(B) is not an allied offense of similar import to

the underlying felony. * * * That being the case, R.C. 2941.25 authorizes

punishment for both crimes, and no double jeopardy violation occurs.” State v.

Keene (1998), 81 Ohio St.3d 646, 668, 693 N.E.2d 246, 265; see, also, State v.

Logan (1979), 60 Ohio St.2d 126, 135, 14 O.O.3d 373, 379, 397 N.E.2d 1345,

1352.

        We summarily overrule Campbell’s twenty-first proposition of law on

authority of State v. Van Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604.


                                        53
      Campbell’s twenty-second proposition consists of well-worn challenges to

the constitutionality of the death penalty. Campbell waived these claims by failing

to raise them at trial. See State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199,

489 N.E.2d 277, syllabus.

                        XVII. Independent Sentence Review

      In his seventh proposition of law, Campbell contends that the aggravating

circumstances present in this case do not outweigh the mitigating factors beyond a

reasonable doubt and that death is thus not the appropriate sentence. However,

because we are remanding this cause to the trial court for further consideration of

the death sentence, it is premature for us to independently review the

appropriateness of that sentence at this time.

                                        Conclusion

      We overrule Campbell’s second through twenty-third propositions of law

(except his seventh) and affirm his convictions. However, we sustain Campbell’s

first proposition of law. Accordingly, we vacate the sentence of death and remand

this cause to the Franklin County Court of Common Pleas for further sentencing

proceedings consistent with this opinion.

                                                            Judgment accordingly.

      F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

      DOUGLAS and RESNICK, JJ., concur in part and dissent in part.


                                          54
FOOTNOTES:

      1.     The 1998 amendments to Crim. R. 32(A) did not affect the substance

of this provision.

      2.     Under R.C. 2929.022(A), “the defendant may elect to have * * * the

trial judge, if he is tried by jury, determine the existence of [the] aggravating

circumstance [of (A)(5)] at the sentencing hearing.”

                                __________________

      ALICE ROBIE RESNICK, J., concurring in part and dissenting in part. I

concur in the affirmance of the conviction, but I disagree with the majority’s

conclusion that this case must be remanded for resentencing, and would affirm

Campbell’s death sentence. Once again, as in State v. Green (2000), 90 Ohio St.3d

352, 738 N.E.2d 1208, a majority of this court applies an overly mechanistic

interpretation of Crim.R. 32(A)(1) to a specific set of facts to reach the

unwarranted conclusion that a defendant’s right of allocution was sufficiently

violated to taint the sentencing.

      As in Green, I have little disagreement with the general statements made by

the majority about the right of allocution. However, when the proceedings below

are examined for compliance with the specifics of that right, reversal is

unwarranted.




                                        55
      The tenor of the majority opinion appears to acquiesce in Campbell’s view,

set forth in his appellate brief, that his trial counsel played a role in causing the trial

judge to erroneously conclude that the allocution right applied only to sentencing

on the noncapital counts, and not to sentencing on the capital counts.

      Campbell’s brief states that “[o]n March 27, 1998, the trial court heard

arguments on the mitigating factors.        After hearing the arguments of defense

counsel on the mitigating factors, the trial court set the date for sentencing. The

prosecutor then correctly noted that Campbell was entitled to allocution before

sentencing.    Defense counsel improperly stated, however, that Campbell was

entitled to allocution on the noncapital counts only. The trial court agreed with

defense counsel.”

      At the sentencing on April 3, 1998, the trial court first allowed the state to

select which capital count Campbell would be sentenced on. The state selected

Count Three, so the trial court then merged the other capital counts into Count

Three. The trial court then proceeded directly to deliver its sentencing opinion in

its entirety, accepting the recommendation of the jury and sentencing Campbell to

death. After dealing with matters related to Campbell’s appeal, the trial court

entertained several victim-impact statements, and then, before sentencing on the

noncapital counts, asked both of Campbell’s attorneys whether they had anything

to say. After a short reply, the trial court explicitly said, “Mr. Campbell, do you


                                            56
have anything you want to say to the Court?’ Campbell responded, “No, I don’t,

your Honor.” At that point, the trial court proceeded to sentence Campbell on the

noncapital counts.

         I believe that the concepts of invited error, waiver, and harmless error and

lack of prejudice all apply to the circumstances here.

                                     Invited Error

         The majority determines that invited error is not present because defense

counsel did not “induce” the error, was not “actively responsible” for it, and “at

worst” acquiesced in it. I disagree. It is necessary for a complete understanding of

the proceedings involved to set out in full the relevant discourse between the trial

court, the prosecutors, and Campbell’s attorneys at the March 27, 1998 hearing,

beginning at the point in the hearing where the parties had concluded their

additional arguments on whether death was the appropriate sentence:

         “THE COURT: Thank you very much. I’ll render my decision a week from

today.

         “MR. STEAD [assistant prosecutor]: What time was that on the 3rd?

         “THE COURT: Let’s say 10 o’clock.

         “MR. O’BRIEN [prosecutor]: Thank you, your Honor.

         “MR. LUTHER [defense counsel]: Your Honor, at that time there will be no

discussion by counsel. The Court will just come out and render the—


                                          57
      “THE COURT: Right. I’ll come out and render my decision and then I

assume, once I’ve rendered my decision on counts One, Two, Three, and Four,

then there will be a sentencing where you will be able to make statements and, of

course, the—I assume the—at that point I can take statements on the—

      “MR. LUTHER: On victim impact.

      “THE COURT: Mr. Stead, you are looking kind of—

      “MR. STEAD: I’m listening to—

      “MR. O’BRIEN:        I’m just saying that would the Defendant have an

allocution right before the Court announces its sentencing decision on the 3rd[?]

      “THE COURT: Yeah.

      “MR. LUTHER: Yeah. After you’ve made your decision on Counts One

through Four, then I think we have a right to make a statement in allocution as to

the sentences on the other offenses.

      “THE COURT: Right.

      “MR. O’BRIEN: And we would have victim impact statements on the other

sentences too.

      “THE COURT: That’s what I was just saying. After I render, on One

through Four, then on the second, Counts Five through Fourteen, at that point I will

take statements and there will be a separate sentencing process that would go along

afterwards.


                                         58
        “MR. LUTHER: Then you will go ahead and impose the sentence on the

case.

        “THE COURT: And I’ll impose the sentence on the other charges also.

Okay. Does that sound all right with everyone?”

        I believe that defense counsel’s statement “After you’ve made your decision

on Counts One through Four, then I think we have a right to make a statement in

allocution as to the sentences on the other offenses” could plausibly be viewed as

an affirmative statement that Campbell did not wish to exercise his right to

allocution prior to sentencing on the capital count. It is not clear that Campbell’s

trial counsel was proceeding under the erroneous impression that Crim.R. 32(A)(1)

does not apply to capital cases, and I disagree with the majority’s ready acceptance

of the view of Campbell’s present attorneys on appeal regarding the statement

made by trial counsel. Since the phrasing of Crim.R. 32(A) does not distinguish

between capital cases and noncapital cases, it seems beyond question that the rule

on its face must apply to all criminal cases, and I do not believe that defendant’s

trial counsel was indicating anything otherwise with his statement.

        Instead, I read defense counsel’s statement as subject to an interpretation

that his client did not wish to make a statement prior to sentencing on the capital

offenses, but perhaps would wish to make a statement prior to sentencing on the

noncapital offenses. To the extent that there might be some error in the trial


                                         59
court’s failure to address Campbell personally on his right of allocution prior to

sentencing on Count Three, I would find that the error was invited by Campbell’s

trial counsel.

                                        Waiver

      Consistent with my view that Campbell invited any error that may have

occurred, I also believe that Campbell’s failure to object in these specific

circumstances waived any claims of error he may have. See State v. Williams

(1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the

syllabus.   Imposing an obligation on the trial court to address the defendant

personally in every circumstance prior to sentencing, even when the defendant has

already expressed a desire not to speak, unnecessarily extends the requirements of

Crim.R. 32(A)(1). That is especially true in this situation, where the trial court

made sure to address the defendant personally before sentencing on the noncapital

counts, and Campbell declined to speak. In State v. Reynolds (1998), 80 Ohio

St.3d 670, 687 N.E.2d 1358, this court in essence adopted a substantial-compliance

approach to this aspect of Crim.R. 32(A)(1). Although the majority states that this

court has “recognized that a trial court’s failure to address the defendant at

sentencing is not prejudicial in every case,” the majority in this case seems to adopt

an absolutist interpretation of the rule that is actually at odds with Reynolds.

                          Harmless Error/Lack of Prejudice


                                          60
      The majority’s conclusion that this case is distinguishable from Reynolds is

unconvincing. In Reynolds, 80 Ohio St.3d at 684, 687 N.E.2d at 1372, this court

focused on several factors to find that the defendant was not prejudiced, stating, “A

court’s error in failing to ask a defendant if he wants to make a statement prior to

sentencing is not prejudicial where, as here, the defendant makes an unsworn

statement in the penalty phase, sends a letter to the trial court, and where defense

counsel makes a statement on behalf of the defendant.”

      Obviously, the list of factors in Reynolds is not an exhaustive one, and that

case illustrates that prejudice on this issue must be determined on a case-by-case

basis. One of the Reynolds factors is present in this case, and appears to be even

stronger than in Reynolds, in that defense counsel spoke extensively on Campbell’s

behalf, both in penalty-phase arguments and at the March 27, 1998 hearing, and

were also offered an opportunity to speak at the April 3, 1998 sentencing.

      The letter to the judge that the defendant sent in Reynolds is a factor not

present in this case, but I believe that two other factors more than make up for that

one—that Dr. Jeffrey Smalldon’s mitigation testimony repeated statements

Campbell had made to him, and that Campbell was given an opportunity to make a

statement before being sentenced on the noncapital offenses. On balance, I see this

case as quite comparable to Reynolds, with roughly the same degree of prejudice, if




                                         61
not less. I would apply the precedent established in Reynolds to this case and find

harmless error in these circumstances.

      Additionally, had Campbell exercised his allocution right at the time he was

addressed personally prior to sentencing on the noncapital counts, he would

potentially have been commenting on Count Three as well. All of the noncapital

counts at trial arose from the same series of events that gave rise to Count Three.

Anything Campbell could have said would have applied to all of the charges

against him, and he could have made “a statement in his * * * own behalf” at that

time. See Crim.R. 32(A)(1).

      Finally, had Campbell made such a statement at that time, nothing would

have prevented the trial judge from relying on the statement to reconsider his

earlier sentencing decision on Count Three, since the sentence on Count Three was

subject to modification until it was journalized.

      In Reynolds, 80 Ohio St.3d at 684, 687 N.E.2d at 1372-1373, this court

remarked that “[f]ailure to provide a defendant the right of allocution could

constitute reversible error in a future case.” I do not disagree with the general

import of that statement; however, based on the record before us, this case is not

the appropriate future case to fulfill the terms of the Reynolds remark. Since the

majority finds reversible error where it should not be found, I dissent.

      DOUGLAS, J., concurs in the foregoing opinion.


                                          62
