[Cite as State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007.]




         THE STATE OF OHIO, APPELLEE, v. CUNNINGHAM, APPELLANT.
     [Cite as State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007.]
Criminal law – Aggravated murder – Death penalty upheld, when.
(No. 2002-1377 — Submitted October 26, 2004 — Decided December 29, 2004.)
 APPEAL from the Court of Common Pleas of Allen County, No. CR2002-0010.
                                 __________________
        PFEIFER, J.
        {¶ 1} On January 3, 2002, in Lima, Ohio, Jeronique D. Cunningham,
defendant-appellant, and his half-brother, Cleveland Jackson Jr., robbed a group
of eight people and then fired their weapons into the group from close range.
Three-year-old Jayla Grant and 17-year-old Leneshia Williams died of gunshot
wounds. A jury convicted Cunningham of the aggravated murders of Grant and
Williams and sentenced him to death.
        {¶ 2} In the early afternoon of January 3, 2002, Cunningham met his
friend, LaShane (“Shane”) Liles, at the home of Cunningham’s sister, Tara
Cunningham. After discussing a drug transaction, Shane and Cunningham went to
Shane’s apartment on East Eureka Street, in Lima, where Shane sold Cunningham
crack cocaine.
        {¶ 3} Later that afternoon, Tara saw Cunningham and Jackson.
According to Tara, Cunningham “was wiping off a gun and Jackson was wiping
off a clip with bullets in it.” Tara heard Jackson tell Cunningham that he was
going to “hit a lick,” i.e., rob somebody, and Jackson mentioned Shane Liles.
        {¶ 4} In the evening of January 3, Cunningham and Jackson went to
Shane’s apartment. Shane was not home, but several family members and friends
were there. Shane came home shortly thereafter, and Cunningham told Shane that
Jackson wanted to purchase drugs. Shane and Jackson then talked about drugs on
                             SUPREME COURT OF OHIO




the staircase near the living room. While Shane and Jackson talked, Cunningham
sat in the living room and watched a movie with teenagers Coron Liles and
Dwight Goodloe Jr.
         {¶ 5} As Shane and Jackson continued to talk, Cunningham stood up and
ordered Coron and Goodloe into the kitchen. When Coron and Goodloe did not
immediately obey, Cunningham, who was wearing gloves, pulled out a gun and
struck Coron in the face with the gun barrel, breaking his jaw.            When
Cunningham hit Coron, Jackson pulled out his gun and aimed it at Shane. Coron
and Goodloe then ran into the kitchen followed by Cunningham pointing his gun
at them. Tomeaka Grant, Armetta Robinson, James Grant, his three-year-old
daughter, Jayla, and 17-year-old Leneshia Williams were already in the kitchen.
         {¶ 6} Cunningham held the group at gunpoint.        The group huddled
together against the back wall and tried to shield themselves behind the kitchen
table. Cunningham pushed the table and chairs away, locked the back door, and
checked the basement for other people. People in the group were crying and
praying, and James repeatedly pleaded with Cunningham not to hurt Jayla.
         {¶ 7} Meanwhile, Jackson forced Shane upstairs and robbed him of
money and drugs. Jackson then tied Shane’s hands behind his back and forced
him into the kitchen at gunpoint. In the kitchen, the group was ordered to place
money, jewelry, and watches on the table. Cunningham and Jackson grabbed
some items from the table and put them into their pockets. Jackson believed that
they had more money and asked Shane for the rest. When Shane said that was all
he had, Jackson shot Shane in the back.
         {¶ 8} Cunningham and Jackson then fired their weapons at the rest of the
group.     Goodloe testified that he saw Coron’s head “snap back” when
Cunningham shot Coron in the mouth. Goodloe also heard Cunningham’s gun
fire “numerous times” and saw smoke coming from Cunningham’s gun. Coron
testified that Cunningham pointed his gun at him and fired. Coron also saw




                                          2
                                January Term, 2004




Cunningham shoot Jayla and Tomeaka. Coron said that both Cunningham and
Jackson had fired their weapons, and he saw sparks coming from Cunningham’s
gun. Tomeaka saw Cunningham and Jackson pulling the triggers of their guns and
heard more than one gun firing. James was holding Jayla when Cunningham
pointed the gun and shot him in the face. Once the shooting stopped, the victims
heard clicking sounds as Cunningham and Jackson continued pulling the triggers
of their guns even after they were out of bullets.
       {¶ 9} The deputy coroner determined that Jayla Grant and Leneshia
Williams had been killed by gunshot wounds to the head. Jayla was shot twice in
the head; either wound would have been fatal. One bullet went through her brain;
the other penetrated her scalp, causing a skull fracture and a brain contusion.
Leneshia suffered a gunshot wound to the back of her head. The bullet traveled
through her brain; she died within seconds of being shot. The coroner recovered
no bullets or bullet fragments from the victims during the autopsies and was
unable to identify the caliber of the bullets that caused the deaths.
       {¶ 10} The surviving victims all suffered gunshot injuries as well. Shane
suffered a gunshot wound to his back. Robinson was shot in the back of the head
and was in a coma for 47 days. James was shot five times and sustained injuries to
his head, arm, and hand. Tomeaka was shot in the head and arm and lost her left
eye. Coron was shot in the mouth, lost teeth, and sustained other injuries to his
mouth. A bullet grazed Goodloe’s side near his rib.
       {¶ 11} Eight spent shell casings and five spent bullets were found at the
scene. One fragmented lead core from a full-metal-jacketed bullet was also
recovered. One bullet from the shooting was still lodged in Tomeaka’s arm, and
Coron testified that he had spit a bullet from his mouth outside the apartment after
the shooting stopped. This bullet was never found. Police photographed and
recovered a bullet from the front porch of the apartment, but this bullet was
subsequently misplaced.




                                          3
                             SUPREME COURT OF OHIO




       {¶ 12} John Heile, a firearms expert for the Bureau of Criminal
Identification and Investigation, performed testing on the shell casings and bullets
recovered from the scene, but no guns were recovered for testing. Heile was able
to identify the spent shell casings and bullets recovered as .380-caliber
ammunition. Heile testified that state’s exhibits 10-17 (shell casings) and exhibits
18, 19, 21, and 23 (spent bullets) were all fired from the same semiautomatic
pistol. Exhibit 20 was the same caliber and possessed the same general
characteristics (e.g., lands and grooves) as the other spent bullets, but Heile could
not confirm that it came from the same weapon. In addition, Heile was unable to
identify the caliber of exhibit 22 (fragmented lead core) or determine whether it
came from the same weapon as the other spent bullets.
       {¶ 13} At trial, the defense presented testimony from three witnesses.
William Reiff, a local gun dealer, testified regarding the differences between
semiautomatic pistols and revolvers.         Reiff explained that a semiautomatic
weapon is loaded by inserting a magazine (i.e., clip) through the butt of the gun
handle. Reiff also testified that a larger weapon, such as a .44-caliber, is
“considerably louder” than a .380-caliber weapon and that .44-caliber bullets are
much larger than .380-caliber bullets. On cross-examination, Reiff admitted that
he did not know which type of gun was used in the shootings.                He also
acknowledged that a .380-caliber bullet has approximately the same diameter as a
.38 bullet and that .38 rounds are generally fired from a revolver.
       {¶ 14} Joann Davis and her daughter, Mary, lived next door to Shane’s
apartment, and both testified that they did not hear any noises at the time of the
shootings. On cross-examination, Joann said that she was taking medication that
night for congestive heart failure and a severe back condition. She also verified
that there is a concrete firewall between her apartment and Shane’s.
       {¶ 15} The defense did not dispute that Cunningham brandished a gun
both before and during the shootings.            The defense’s theory was that




                                         4
                               January Term, 2004




Cunningham’s gun was inoperable and that he had neither planned nor intended to
kill anyone. The defense relied heavily on the physical evidence found at the
scene in arguing that only Jackson had fired a weapon.        At trial, witnesses
unequivocally recalled a revolver in Cunningham’s hands and a semiautomatic
pistol with a clip in Jackson’s hands.      The bullet casings and spent bullets
recovered from the scene, except exhibit 22, were all identified as .380-caliber
ammunition that is typically fired from a semiautomatic handgun, not from a
revolver.
       {¶ 16} Cunningham was indicted on two counts of aggravated murder.
Count One charged Cunningham with purposely causing the death of Jayla Grant
during an aggravated robbery. Count Two charged Cunningham with purposely
causing the death of Leneshia Williams during an aggravated robbery. R.C.
2903.01(B). Cunningham was charged with aggravated robbery in Count Three
and with six counts of attempted murder in Counts Four through Nine.
Cunningham was also charged with having a weapon under disability in Count
Ten, but this charge was dismissed.
       {¶ 17} The aggravated-murder counts each contained two death-penalty
specifications. The first specification charged aggravated murder as part of a
course of conduct to kill or attempt to kill two or more persons.            R.C.
2929.04(A)(5). The second specification charged aggravated murder during an
aggravated robbery and that the murder was committed with prior calculation and
design. R.C. 2929.04(A)(7). Firearm and repeat-violent-offender specifications
were attached to all counts except Count Ten.
       {¶ 18} The jury convicted Cunningham of all charges, the death-penalty
specifications, and the firearm specifications. After a penalty hearing, the trial
court sentenced Cunningham to death on Counts One and Two consistent with the
jury’s recommendation. The trial court imposed consecutive sentences of ten
years each for Cunningham’s convictions of aggravated robbery and six counts of




                                        5
                             SUPREME COURT OF OHIO




attempted murder, plus three-year consecutive sentences for the firearm
specifications.    Pursuant to R.C. 2941.149, the trial court determined that
Cunningham was a repeat violent offender, sentenced him to nine years on each
specification, and ordered those sentences to run concurrently with each other but
consecutively to the 13-year sentences for Counts Three through Nine.
       {¶ 19} This cause is now before this court on an appeal as of right.
                               PRETRIAL ISSUES
       Voir Dire
       {¶ 20} In proposition of law IV, Cunningham asserts that the trial court
unduly restricted defense counsel’s voir dire of prospective jurors. Cunningham
contends that the trial court precluded defense counsel from inquiring into
prospective jurors’ willingness and ability to consider mitigating factors and, as a
result, it is likely that an automatic-death-penalty juror served on the jury.
       {¶ 21} “The manner in which voir dire is to be conducted lies within the
sound discretion of the trial judge.” State v. Lorraine (1993), 66 Ohio St.3d 414,
418, 613 N.E.2d 212.       A trial court has “ ‘great latitude in deciding what
questions should be asked on voir dire.’ ” State v. Wilson (1996), 74 Ohio St.3d
381, 386, 659 N.E.2d 292, quoting Mu’Min v. Virginia (1991), 500 U.S. 415, 424,
111 S.Ct. 1899, 114 L.Ed.2d 493. Crim.R. 24(A) requires that counsel be given
an opportunity to question prospective jurors or to supplement the court’s voir
dire examination. Accord R.C. 2945.27. Restrictions on voir dire have generally
been upheld, and absent a clear abuse of discretion, prejudicial error cannot be
assigned to the examination of the venire. State v. Durr (1991), 58 Ohio St.3d 86,
89, 568 N.E.2d 674; State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274.
       {¶ 22} Defense counsel waived any potential error by failing to challenge
any seated juror’s views on capital punishment. See State v. Smith (1997), 80
Ohio St.3d 89, 105, 684 N.E.2d 668, citing State v. Williams (1977), 51 Ohio
St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus.




                                           6
                                January Term, 2004




Cunningham also cannot show prejudice, because he approved the jury selected
before exhausting his peremptory challenges. State v. Broom (1988), 40 Ohio
St.3d 277, 287-288, 533 N.E.2d 682; State v. Watson (1991), 61 Ohio St.3d 1, 16,
572 N.E.2d 97. See, also, e.g., State v. Getsy (1998), 84 Ohio St.3d 180, 191, 702
N.E.2d 866.
       {¶ 23} The trial court did not unduly limit counsel’s opportunity to
question prospective jurors regarding their views on capital punishment.           A
review of the transcript reveals that the trial court placed few restrictions on
counsel during voir dire.      The trial court allowed defense counsel to ask
prospective jurors whether they would automatically vote for the death penalty,
whether they were willing to fairly consider all mitigating factors raised by the
defense, as well as all available sentencing options, and whether they would
evaluate all evidence before making a sentencing determination.
       {¶ 24} The trial court precluded defense counsel from questioning
prospective jurors about their views on specific mitigating factors. We have
rejected past attempts to find error in such restrictions. See State v. Jones (2001),
91 Ohio St.3d 335, 338, 744 N.E.2d 1163 (trial court is under no obligation to
discuss, or permit the attorneys to discuss, specific mitigating factors); State v.
Wilson, 74 Ohio St.3d at 385-387, 659 N.E.2d 292 (no abuse of discretion
occurred when the trial court declined to allow defense counsel to query
prospective jurors about specific statutory mitigating factors); State v. Lundgren
(1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304 (jurors cannot be asked to weigh
mitigating factors until they have heard all the evidence and been fully instructed
on the applicable law). Although defense counsel were precluded from asking
questions regarding specific mitigating factors, counsel were not prevented from
gauging prospective jurors’ views on the death penalty or from exposing faults
that would render a juror ineligible. See Wilson, 74 Ohio St.3d at 386, 659
N.E.2d 292.




                                         7
                              SUPREME COURT OF OHIO




          {¶ 25} Cunningham identifies prospective jurors Nos. 10, 11, 14, 22, 38,
and 76 as exhibiting an inability to consider mitigating factors and life-sentencing
options and claims that the trial court precluded defense counsel’s attempts to
question them on this issue.       Only prospective jurors Nos. 11, 14, and 38
ultimately sat on the jury, and Cunningham has failed to demonstrate that these
jurors were not fair and impartial. See, e.g., Broom, 40 Ohio St.3d at 287-288,
533 N.E.2d 682 (any claim that a jury was not impartial is focused on those jurors
who ultimately sat).
          {¶ 26} During individual voir dire, prospective jurors Nos. 11, 14, and 38
stated that they would follow the court’s instructions and would not automatically
vote for the death penalty. Each juror agreed to fairly consider mitigating factors
and all sentencing options before making any sentencing determination.
          {¶ 27} Moreover, contrary to Cunningham’s assertions, the trial court
allowed defense counsel a meaningful opportunity to question these jurors
regarding their views on capital punishment.        For example, defense counsel
explained the four sentencing options to prospective juror No. 11 and asked
whether she would automatically vote for the death sentence.             When she
responded “no,” defense counsel asked her to explain her views. Counsel then
informed prospective juror No. 11 that the defendant had the right to present
mitigating evidence, defined mitigating factors as “reasons why not to impose
death,” and asked whether she would consider those mitigating factors “when [she
considers] the four (4) [sentencing] options available to [her]?” The trial court
permitted defense counsel to pose similar questions to prospective jurors Nos. 14
and 38.
          {¶ 28} The record does not support Cunningham’s claim that the trial
court unreasonably restricted defense counsel’s examination of prospective jurors.
See, e.g., State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913.




                                          8
                                 January Term, 2004




Cunningham has not shown that jurors were unwilling to fairly consider
mitigating evidence or life-sentencing options. We reject proposition of law IV.
        Pretrial Publicity
        {¶ 29} In proposition of law V, Cunningham contends that the trial court’s
denial of his motion to change venue deprived him of a fair and impartial jury and
due process. Cunningham argues that pretrial publicity was so pervasive that
prejudice must be presumed.
        {¶ 30} Courts rarely presume that a jury is prejudiced by pretrial
publicity.   See    Lundgren, 73 Ohio St.3d at 479, 653 N.E.2d 304.                 That
prospective jurors have been exposed to pretrial publicity does not necessarily
demonstrate prejudice requiring a change of venue. See State v. White (1998), 82
Ohio St.3d 16, 21, 693 N.E.2d 772; State v. Landrum (1990), 53 Ohio St.3d 107,
116-117, 559 N.E.2d 710. See, also, Nebraska Press Assn. v. Stuart (1976), 427
U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (“pretrial publicity – even
pervasive, adverse publicity – does not inevitably lead to an unfair trial”).
        {¶ 31} A motion for change of venue is governed by Crim.R. 18(B),
which provides that a trial court may change venue “when it appears that a fair
and impartial trial cannot be held” in that court. See, also, R.C. 2901.12(K). “
‘[A] careful and searching voir dire provides the best test of whether prejudicial
pretrial publicity has prevented obtaining a fair and impartial jury from the
locality.’ ” Landrum, 53 Ohio St.3d at 117, 559 N.E.2d 710, quoting State v.
Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 357 N.E.2d 1035. If the
record on voir dire establishes that prospective jurors have been exposed to
pretrial publicity but would nevertheless determine defendant’s guilt or innocence
solely on the law and evidence presented at trial, it is not error for the trial court to
empanel those jurors. State v. Maurer (1984), 15 Ohio St.3d 239, 252, 15 OBR
379, 473 N.E.2d 768; State v. Carter (1995), 72 Ohio St.3d 545, 556, 651 N.E.2d
965.




                                           9
                            SUPREME COURT OF OHIO




       {¶ 32} Here, the trial court conducted an extensive voir dire that covered
four days and nearly 900 pages of transcript. After a thorough general voir dire
with counsel for both sides participating, the trial court conducted a sequestered
voir dire during which prospective jurors were individually questioned regarding
the death penalty and exposure to pretrial publicity. The trial court and counsel
asked prospective jurors whether they had been exposed to pretrial media
coverage, the extent of their exposure, and whether they had obtained any
knowledge about the case from other sources.             Most prospective jurors
acknowledged hearing something about the case through local media coverage or
from other sources within the community. Nevertheless, most prospective jurors
accepted the presumption of innocence, stated that they had not formed an
opinion about Cunningham’s guilt, and asserted that they could put aside any
exposure to pretrial publicity and decide the case solely on the evidence at trial.
The trial court readily excused members of the venire who had formed fixed
opinions or were otherwise unsuitable.
       {¶ 33} Cunningham’s claim of pervasive publicity is undercut by the fact
that he did not challenge on pretrial publicity grounds any of the jurors actually
seated. Further, he failed to exhaust all of his peremptory challenges. Counsel’s
failure to challenge jurors and to exhaust peremptory challenges indicates that the
defense was satisfied that the final jury was not prejudicially affected by pretrial
publicity. See, e.g., State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787
N.E.2d 1185, at ¶ 37. Cunningham has failed to show that “the publicity in this
case was so pervasive that it impaired the ability of the empaneled jurors to
deliberate fairly and impartially.” State v. Treesh (2001), 90 Ohio St.3d 460, 463-
464, 739 N.E.2d 749. We reject proposition of law V.
                                GUILT-PHASE ISSUES
       Examination of Witness Statements




                                         10
                                January Term, 2004




       {¶ 34} In proposition of law I, Cunningham claims that the trial court did
not permit defense counsel to review the pretrial statements of prosecution
witnesses for inconsistencies as required by Crim.R. 16(B)(1)(g). Cunningham
contends that by not allowing the defense to participate in the inspection of the
witnesses’ statements, the trial court committed reversible error per se and
violated his rights of confrontation and due process.
       {¶ 35} Crim.R. 16(B)(1)(g) provides:
       {¶ 36} “In camera inspection of witness’ statement. Upon completion of
a witness’ direct examination at trial, the court on motion of the defendant shall
conduct an in camera inspection of the witness’ written or recorded statement
with the defense attorney and prosecuting attorney present and participating, to
determine the existence of inconsistencies, if any, between the testimony of such
witness and the prior statement.
       {¶ 37} “If the court determines that inconsistencies exist, the statement
shall be given to the defense attorney for use in cross-examination of the witness
as to the inconsistencies.
       {¶ 38} “If the court determines that inconsistencies do not exist the
statement shall not be given to the defense attorney and he shall not be permitted
to cross-examine or comment thereon.
       {¶ 39} “Whenever the defense attorney is not given the entire statement, it
shall be preserved in the records of the court to be made available to the appellate
court in the event of an appeal.”
       {¶ 40} During the state’s case, Cunningham’s trial counsel made Crim.R.
16(B)(1)(g) motions with regard to six prosecution witnesses. The trial court
determined that inconsistencies existed between the pretrial statements and trial
testimony of Tara Cunningham, Shane Liles, and James Grant and provided their
statements to defense counsel for cross-examination. The trial court found no
inconsistencies between the pretrial statements and testimony of Dwight Goodloe,




                                         11
                            SUPREME COURT OF OHIO




Coron Liles, and Tomeaka Grant and did not provide their statements to the
defense. The trial court preserved all statements for appellate review.
       {¶ 41} The initial question we must resolve is whether any of the witness
statements are “statements” subject to disclosure pursuant to Crim.R. 16(B)(1)(g).
The statements at issue are contained in incident reports compiled by the Lima
Police Department during its investigation of the shootings. In State v. Jenkins
(1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, we considered whether
police reports constitute statements discoverable under Crim.R. 16(B)(1)(g). We
ruled that those portions of police reports recording the officer’s personal
observations and recollections of the events are subject to scrutiny under Crim.R.
16(B)(1)(g), stating:
       {¶ 42} “Clearly, a signed written statement of a state witness would serve
the purpose of Crim.R. 16(B)(1)(g) and fall within the plain meaning of the word
‘statement,’ just as would a recording of the witness’ words or a transcription
thereof. We see no reason why the mere fact that the document was a report of a
police officer would automatically bar its disclosure.” Id. at 225, 15 OBR 311,
473 N.E.2d 264.
       {¶ 43} In Jenkins, we specifically excluded from discovery other portions
of a police officer’s report, including statements from other witnesses contained
therein. “This is not to say that all portions of a police report are discoverable
under Crim.R. 16(B)(1)(g). Reading this section in pari materia with Crim.R.
16(B)(2), it becomes apparent that those portions of a testifying police officer’s
signed report concerning his observations and recollection of the events are
‘statements’ within the meaning of Crim.R. 16(B)(1)(g). Those portions which
recite matters beyond the witness’ personal observations, such as notes regarding
another witness’ statement or the officer’s investigative decisions, interpretations
and interpolations, are privileged and excluded from discovery under Crim.R.




                                        12
                                January Term, 2004




16(B)(2). Cf. State v. Houston (Iowa 1973), 209 N.W.2d 42, 46.” (Emphasis
added.) Jenkins,15 Ohio St.3d at 225, 15 OBR 311, 473 N.E.2d 264.
       {¶ 44} Here, the trial court failed to make an independent, threshold
determination whether a “producible out-of-court witness statement” exists within
the meaning of Crim.R. 16(B)(1)(g). State v. Daniels (1982), 1 Ohio St.3d 69, 1
OBR 109, 437 N.E.2d 1186, syllabus; State v. Jenkins, 15 Ohio St.3d at 225-226,
15 OBR 311, 473 N.E.2d 264. Unlike the situation in Jenkins, the testifying
witnesses in this matter were not the officers who wrote the police reports.
Instead, the testifying witnesses were victims of the shootings, and their pretrial
“statements” are actually the police officers’ written summaries of what the
victims had allegedly told the officers. Nothing in the record indicates that these
witnesses had reviewed, signed, adopted, or otherwise approved the material in
the police reports as their own statements. There is no proof that the police
officers’ summaries are an accurate reproduction of the witnesses’ own words.
Therefore, we find that these pretrial statements are not statements subject to an in
camera inspection under Crim.R. 16(B)(1)(g).
       {¶ 45} Even if we assume, as the trial court did, that the witnesses made
statements for purposes of Crim.R. 16, reversible error did not occur. In State v.
Daniels, 1 Ohio St.3d 69, 1 OBR 109, 437 N.E.2d 1186, we interpreted the
“present and participating” provision in Crim.R. 16(B)(1)(g) as requiring, upon
the granting of a defendant’s timely motion for an in camera inspection, that
attorneys for all parties be given the opportunity to “(1) inspect the statement
personally; and (2) call to the court’s attention any perceived inconsistencies
between the testimony of the witness and the prior statement. (Crim.R.
16[B][1][g], construed and applied.)” Id. at syllabus.
       {¶ 46} Cunningham interprets Daniels as requiring reversal of a
defendant’s conviction any time the trial court prevents counsel from participating
in the in camera inspection, regardless of whether prejudice has occurred. On its




                                         13
                             SUPREME COURT OF OHIO




face, we concede that Daniels arguably could be read as establishing a per se rule
of prejudicial error. In Daniels, we stated that the trial court’s failure to afford
defense counsel the opportunity to inspect the witness’s statement personally and
call to the court’s attention any perceived inconsistencies constituted reversible
error per se. Id. at 71, 1 OBR 109, 437 N.E.2d 1186. Nevertheless, a closer
reading of our decision in Daniels indicates that more than counsel’s exclusion
from the in camera inspection is required to give rise to reversible error.
       {¶ 47} The scope of our finding of prejudicial error per se in Daniels is
clearly limited by the language “under the facts at bar.” Id. In Daniels, we
reviewed the pretrial statement and in-court testimony at issue and found that
inconsistencies existed between the two. Id., fn. 3. Had we intended to set forth a
per se prejudicial-error rule, our review and finding would not have been
necessary. The conclusion that we did not establish a per se prejudicial-error rule
in Daniels comports with the last section of Crim.R. 16(B)(1)(g), which requires
the trial court to preserve the statement for appellate review if any part of the
witness statement is not given to defense counsel.
       {¶ 48} Cunningham has waived all but plain error in regard to this issue.
Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d
804, paragraph two of the syllabus. There was no plain error. Defense counsel
and the prosecutor were present while the trial court reviewed the statements.
Although the transcript is not entirely clear, it appears that defense counsel did not
personally inspect the statements as permitted by Crim.R. 16(B)(1)(g).
Nevertheless, once the trial court concluded that there were no inconsistencies
between the statements and trial testimony of Goodloe, Coron Liles, and Tomeaka
Grant, defense counsel did not ask to review the statements or object to the
procedure employed by the court in examining the statements. Defense counsel
merely accepted the trial court’s decision that there were no inconsistencies and
asked that the statements be preserved for appellate review. Under somewhat




                                         14
                                 January Term, 2004




similar circumstances in Jenkins, we said that “a defendant cannot be heard to
complain on appeal about a matter which the trial judge could have remedied if
the defense had complained then.” Jenkins, 15 Ohio St.3d at 226, 15 OBR 311,
473 N.E.2d 264.
         {¶ 49} Cunningham has failed to identify any inconsistencies that would
warrant reversal. Cf. State v. White (1968), 15 Ohio St.2d 146, 44 O.O.2d 132,
239 N.E.2d 65. On appeal, Cunningham does not argue that any inconsistencies
exist between the pretrial statements and testimony of Coron Liles and Tomeaka
Grant.    Cunningham does argue that Goodloe’s police statement and trial
testimony are inconsistent because his statement lacked many of the details to
which he later testified.      The fact that details may be lacking in a pretrial
statement does not mean that inconsistencies exist for purposes of Crim.R.
16(B)(1)(g). This observation would be particularly true where, as here, the
accuracy of Goodloe’s statement to police cannot be established.
         {¶ 50} Finally,     Cunningham    cannot   establish      prejudice,   because
Goodloe’s testimony was merely cumulative of other evidence establishing
Cunningham’s guilt. Had defense counsel been able to use Goodloe’s pretrial
statement on cross-examination to rebut his direct testimony, the outcome of the
trial would not have been altered in light of the testimony from the other surviving
witnesses. We reject proposition of law I.
         Jury Instructions
         {¶ 51} Cunningham argues in proposition of law II that the trial court
instructed the jury in a manner calculated to defeat the effectiveness of cross-
examination.     Cunningham complains that the court instructed the jury that
inconsistencies in testimony did not affect witness credibility.
         {¶ 52} During the guilt phase, the trial court instructed the jury regarding
the credibility of witnesses and the weight to be given their testimony. The
court’s instruction substantially tracked the standard credibility instruction in 4




                                          15
                              SUPREME COURT OF OHIO




Ohio Jury Instructions (2001), Section 405.20. The trial court, however, added
the following language to the general charge:
        {¶ 53} “You should not decide any issue of fact merely on the basis of the
number of witnesses who testify on each side of the issue. Rather, the final test in
judging evidence should be the force and weight of the evidence, regardless of the
number of witnesses on each side of an issue. The testimony of one witness,
believed by you, is sufficient to prove any fact.
        {¶ 54} “Also, discrepancies in the witness’ testimony, or between his or
her testimony and that of others, if there are any, does not necessarily mean that
you should disbelieve that witness, as people commonly forget facts or recollect
them erroneously after the passage of time. In considering a discrepancy in a
witness [sic] testimony, you should consider whether such discrepancy concerns
an important fact or a trivial fact.”
        {¶ 55} The trial court gave an identical preliminary instruction to the jury
before trial.
        {¶ 56} Cunningham failed to object to this instruction and thus waived all
but plain error. An erroneous jury instruction does not constitute plain error
unless, but for the error, the outcome of the trial clearly would have been
otherwise. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d
1332, syllabus, following State v. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372
N.E.2d 804.
        {¶ 57} There was no error, plain or otherwise, in the trial court’s
credibility instruction. Crim.R. 30(B) permits the trial court to give the jury
instructions of law relating to credibility and weight of the evidence. A single
jury instruction may not be judged in artificial isolation but 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.            When the credibility
instruction is viewed in its entirety, it is clear that the trial court did not instruct




                                          16
                                 January Term, 2004




the jury to disregard discrepancies in the evidence. Rather, the court charged the
jury to consider discrepancies and weigh their significance when determining
credibility.
          {¶ 58} Even were we to find error in the trial court’s credibility
instruction, plain error is lacking. Cunningham contends that this instruction
significantly damaged his defense, which was presented primarily through cross-
examination of the state’s witnesses. Defense counsel sought to establish that
Cunningham did not plan to rob or kill anyone that night, that he fired no shots,
and that he did not participate in the robbery.            The state’s case against
Cunningham rested primarily on the testimony of several eyewitnesses, and their
testimony was consistent regarding Cunningham’s degree of participation in the
crimes. All but one of the surviving eyewitnesses identified Cunningham as one
of the two assailants who held them at gunpoint while they were forced to
surrender their valuables. Several witnesses testified that Cunningham fired his
weapon into the group. Despite Cunningham’s claims to the contrary, the
eyewitness testimony of the state’s witnesses was strongly corroborated.
Cunningham has therefore failed to show that, but for the trial court’s credibility
instruction, the result of his trial would have been different.
          {¶ 59} Cunningham also argues that the effect of this guilt-phase
instruction had a carryover effect on the penalty phase.          We disagree.    As
discussed, there was no error in the trial court’s credibility instruction. Moreover,
the instruction was not repeated in the penalty phase. We reject proposition of
law II.
          Photographic Evidence
          {¶ 60} In proposition of law VI, Cunningham contends that the trial court
erred by admitting irrelevant, repetitive, and inflammatory photographs of the
victims. In capital cases, relevant, nonrepetitive photographs are admissible, even
if gruesome, as long as the probative value of each photograph outweighs the




                                          17
                            SUPREME COURT OF OHIO




danger of material prejudice to the accused. State v. Maurer, 15 Ohio St.3d 239,
15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; State v. Morales
(1987), 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267.               Decisions on the
admissibility of photographs are left to the sound discretion of the trial court.
State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916.
       {¶ 61} Many of the photographs that Cunningham complains of on appeal
were not objected to at trial. Cunningham’s claim that objections were raised at
trial to exhibits 38, 44, 50, 53, 56, 57, 58, and 60 is not supported by the record.
Thus, Cunningham has waived all but plain error as to exhibits 38, 39, 44, 45, 47,
48, 49, 50, 53, 56, 57, 58, and 60. State v. Twyford (2002), 94 Ohio St.3d 340,
358, 763 N.E.2d 122. These photos illustrated the testimony of police officers
and eyewitnesses who described the crime scene and were probative of intent and
the nature and circumstances of the crime. See, e.g., State v. Hughbanks, 99 Ohio
St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 72; State v. Reynolds (1998),
80 Ohio St.3d 670, 676-677, 687 N.E.2d 1358. We conclude that outcome-
determinative plain error did not result from the admission of any of these
photographs.
       {¶ 62} As to those exhibits objected to at trial, Cunningham has not
shown that the trial court erred in admitting these photographs. Cunningham
raises issues regarding four autopsy photos (exhibits 34, 35, 36, and 37), two
photos depicting injuries sustained by surviving witnesses (exhibits 40 and 41),
and two crime-scene photos depicting Leneshia’s body (exhibits 42 and 43).
       {¶ 63} Exhibits 34, 35, 36, and 37 are autopsy photographs of Leneshia
and depict gunshot wounds to her head. Exhibit 34 depicts a gunshot wound to
the back of her head. Exhibit 35 is a picture of the same wound taken from a
wider angle. Exhibits 34 and 35 are repetitive, and we find that only one of these
photos should have been admitted. Similarly, exhibit 36 is merely a close-up
version of exhibit 37, and only one of these photos should have been admitted.




                                        18
                                January Term, 2004




Nevertheless, these photos illustrated the coroner’s testimony and were highly
relevant to intent and cause of death. Despite the repetitive nature of exhibits 35
and 37, we conclude that Cunningham was not materially prejudiced by their
admission. See, e.g., State v. Campbell (1994), 69 Ohio St.3d 38, 50, 630 N.E.2d
339; State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, at ¶
96-97.
         {¶ 64} Exhibits 40 and 41 are photos of Tomeaka Grant taken while she
was in the hospital recovering from her injuries. Exhibit 40 depicts a gunshot
wound to her face. Exhibit 41 is a photo of her face from a different angle and
illustrates an injury to her left eye. Neither photo is so gruesome as to pose a risk
of material prejudice. Both are relevant to show the injuries this victim sustained
and are probative of Cunningham’s intent.
         {¶ 65} Exhibit 42 is a crime-scene photo of Leneshia lying in a pool of
blood. This photo depicts how the body was positioned in the home and, although
gruesome, it is probative of intent and the manner and circumstances of her death.
The probative value outweighed any danger of unfair prejudice. See, e.g., State v.
Biros (1997), 78 Ohio St.3d 426, 444-445, 678 N.E.2d 891.              Cunningham
complains about exhibit 43 but offers no argument on appeal explaining why he
believes this exhibit was admitted in error. Exhibit 43 shows Leneshia’s hand in a
pool of blood. This photo is gruesome, but it helped explain the testimony of
police officers who discovered and processed the crime scene.              It is not
duplicative or cumulative, and no abuse of discretion occurred, since the value of
this photo outweighed any prejudicial impact.
         {¶ 66} Cunningham also complains that the trial court erred in readmitting
certain photos during the penalty phase. At that stage, the defense objected to
exhibits 38, 39, and 40. A trial court may properly allow repetition of much or all
that occurred in the guilt phase pursuant to R.C. 2929.03(D)(1). State v. DePew
(1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542; State v. Woodard (1993),




                                         19
                              SUPREME COURT OF OHIO




68 Ohio St.3d 70, 78, 623 N.E.2d 75. Thus, there was no error. We reject
proposition of law VI.
                              SENTENCING ISSUES
         Penalty-Phase Jury Instructions
         {¶ 67} Cunningham claims in proposition VII that the trial court erred
when it failed to instruct the jury about which evidence from the guilt phase was
relevant and could be considered during the penalty phase. Cunningham argues
that the trial court erred by instructing the jury:
         {¶ 68} “For purposes of this proceeding, only that evidence admitted in
the trial phase that is relevant to the aggravating circumstance and to any
mitigating factors is to be considered by you.”
         {¶ 69} Cunningham failed to object to the above instruction. He also
failed to object when the trial court granted the state’s request to admit all
testimony from the guilt phase in the penalty phase. Thus, Cunningham has
waived all but plain error. Crim.R. 52(B). We conclude that plain error did not
occur.
         {¶ 70} In State v. Coley (2001), 93 Ohio St.3d 253, 269-270, 754 N.E.2d
1129, we rejected the same argument that Cunningham now makes. In this case,
as in Coley, the trial court determined which guilt-phase exhibits were relevant to
the penalty phase and instructed the jury that “only that testimony and evidence
which was presented in this [first] phase that is relevant to the two aggravating
circumstances * * * and to any of the mitigation factors * * * are to be considered
by you.” Id. at 269, 754 N.E.2d 1129. Here, the trial court identified a single
aggravating circumstance for the jury’s consideration and instructed the jury that
only this aggravating circumstance may be considered and the “aggravated
murder itself is not an aggravated [sic] circumstance.”
         {¶ 71} Much of the guilt-phase testimony was relevant in the penalty
phase because it related to the course-of-conduct aggravating circumstance, as




                                           20
                                 January Term, 2004




well as to the nature and circumstances of the offenses. See State v. Jones, 91
Ohio St.3d at 350, 744 N.E.2d 1163; State v. Ahmed, 103 Ohio St.3d 27, 2004-
Ohio-4190, 813 N.E.2d 637, at ¶ 111. We reject proposition of law VII.
       Trial Court Sentencing Opinion
       {¶ 72} Cunningham argues in proposition of law X that the trial court’s
sentencing opinion is inadequate and does not comply with the requirements of
R.C. 2929.03(F).     Cunningham claims that the trial court made an incorrect
finding of fact, failed to consider relevant mitigating evidence, and improperly
conducted its weighing process.
       {¶ 73} R.C. 2929.03(F) requires the trial court, in imposing a sentence of
death, to state in a separate opinion “its specific findings as to the existence of any
of the mitigating factors set forth in division (B) of section 2929.04 of the Revised
Code, the existence of any other mitigating factors, the aggravating circumstances
the offender was found guilty of committing, and the reasons why the aggravating
circumstances * * * were sufficient to outweigh the mitigating factors.”
       {¶ 74} Cunningham contends that the trial court made an incorrect finding
of fact when it stated in its sentencing opinion that Goodloe had testified that
Cunningham had shot him. Cunningham is correct that Goodloe gave no such
testimony. Goodloe, however, did testify that he saw Cunningham shoot Coron
Liles in the mouth. Thus, Cunningham was not prejudiced, and this error was
harmless.
       {¶ 75} Cunningham next argues that the trial court failed to consider
relevant mitigating evidence because the sentencing opinion did not refer to some
of his most compelling mitigating evidence. He also contends that the trial court
erred in assigning little or no weight to those factors it did consider.
       {¶ 76} Although “a sentencing court must consider all evidence of
mitigation, it need not discuss each factor individually.” State v. Phillips (1995),
74 Ohio St.3d 72, 102, 656 N.E.2d 643. “The fact that mitigation evidence is




                                          21
                             SUPREME COURT OF OHIO




admissible ‘does not automatically mean that it must be given any weight.’ State
v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph
two of the syllabus.” State v. Mitts (1998), 81 Ohio St.3d 223, 235, 690 N.E.2d
522. In imposing sentence, the assessment of and weight given to mitigating
evidence are matters within the trial court’s discretion. State v. Lott (1990), 51
Ohio St.3d 160, 171, 555 N.E.2d 293. Even when a trial court assigns no value in
mitigation, the weight to assign a given factor is a matter for the discretion of the
individual decisionmaker. See State v. Fox (1994), 69 Ohio St.3d 183, 193, 631
N.E.2d 124. The trial court did not commit error.
       {¶ 77} The trial court did err, however, in failing to specify that it
separately considered the death sentence for each aggravated murder. See State v.
Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895, paragraph three of the syllabus.
Our independent review of the death sentence cures any error in this regard. See
Fox, 69 Ohio St.3d at 191-192, 631 N.E.2d 124; State v. Jackson (2001), 92 Ohio
St.3d 436, 450, 751 N.E.2d 946. Cf. State v. Green (2000), 90 Ohio St.3d 352
360-364, 738 N.E.2d 1208. We reject proposition of law X.
                      PROSECUTORIAL MISCONDUCT
       {¶ 78} In proposition of law VIII, Cunningham argues that he was denied
a fair trial because of prosecutorial misconduct.        Whether the prosecutor’s
remarks at trial constitute misconduct requires analysis as to (1) whether the
remarks were improper and (2) if so, whether the remarks prejudicially affected
the accused’s substantial rights. State v. Smith (1984), 14 Ohio St.3d 13, 14-15,
14 OBR 317, 470 N.E.2d 883. The touchstone of the analysis “is the fairness of
the trial, not the culpability of the prosecutor.” Smith v. Phillips (1982), 455 U.S.
209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78.
       {¶ 79} Cunningham argues that prosecutorial misconduct occurred when
the prosecutor improperly introduced victim-impact evidence through the
testimony of Armetta Robinson. Defense counsel failed to object, however, and




                                          22
                                January Term, 2004




waived all but plain error. State v. Tibbetts (2001), 92 Ohio St.3d 146, 160-161,
749 N.E.2d 226.
       {¶ 80} Robinson, a victim of the shooting, testified that she had no
recollection of the day she was shot. She displayed the gunshot wound on the
back of her head, told the jury that she had had surgery, that she had been in a
coma for 47 days, and that she was undergoing occupational, physical, and speech
therapy. She also identified her eyeglasses, which later testimony confirmed had
been found at the scene of the crime.
       {¶ 81} Cunningham was charged with the attempted murder of Robinson,
and, although she could not identify Cunningham as her assailant, her testimony
was relevant to issues of his intent and to show the nature and extent of her
injuries. See State v. Fautenberry (1995), 72 Ohio St.3d 435, 440, 650 N.E.2d
878 (victim-impact evidence relating to the facts attendant to the offense is clearly
admissible during the guilt phase). Robinson’s identification of her eyeglasses
helped to prove that she had been at Shane’s apartment at the time of the shooting.
Testimony about her gunshot wound proved that she had been shot, and her
testimony about surgery, her coma, and her physical therapy established that she
had been seriously injured. Finally, her testimony was not directed to the penalty
and did not appear to be overly emotional. It cannot be said that the outcome of
Cunningham’s trial would have been otherwise but for Robinson’s testimony. Its
admission was not error. See State v. Hartman (2001), 93 Ohio St.3d 274, 293,
754 N.E.2d 1150. See, also, Reynolds, 80 Ohio St.3d at 679, 687 N.E.2d 1358.
       {¶ 82} Cunningham claims that the prosecutor made several improper
comments during guilt-phase closing argument. During the defense’s closing
argument, counsel argued that the physical evidence found at the scene proved
that only one weapon was fired and that Jackson fired that weapon. Defense
counsel suggested that Cunningham’s gun was inoperable.                Cunningham
complains that the prosecutor responded to this argument by improperly




                                         23
                            SUPREME COURT OF OHIO




speculating about evidence when he commented about the condition of bullets
purportedly fired from Cunningham’s gun and how the age of a gun affects its
use. Cunningham’s failure to object to these comments waived all but plain error.
State v. Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916.
       {¶ 83} “Prosecutors are entitled to latitude as to what the evidence has
shown and what inferences can be drawn therefrom.” State v. Richey (1992), 64
Ohio St.3d 353, 362, 595 N.E.2d 915. See, also, Watson, 61 Ohio St.3d at 10,
572 N.E.2d 97. The prosecutor’s comment about the condition and operability of
Cunningham’s gun was not misconduct.          During cross-examination, defense
counsel elicited from James Grant that he had seen Cunningham holding a
revolver that had not been well cared for and “looked old and rusty.” Thus, the
prosecutor’s comment about the gun amounted to fair comment on the evidence.
See, e.g., State v. Hicks (1989), 43 Ohio St.3d 72, 76-77, 538 N.E.2d 1030.
       {¶ 84} The prosecutor’s comment about bullets being lost or damaged
was also not misconduct.      In Richey, laboratory tests failed to reveal fire
accelerants on defendant’s clothing. Nevertheless, we found that the prosecutor’s
comments speculating why accelerants had not been found in an arson case
amounted to fair comment. Richey, 64 Ohio St.3d at 362, 595 N.E.2d 915.
       {¶ 85} Cunningham complains that the prosecutor made inflammatory
comments about one of the victims and improperly commented on Cunningham’s
right to a fair trial. During the state’s rebuttal closing argument, the prosecutor
stated that “[Jayla Grant] never asked to be there and she was never given a
chance. She was never given justice like he’s receiving.” Cunningham argues
that the prosecutor’s comment invited the jury to punish Cunningham for
exercising his jury trial rights and insinuated that the only way for the victim to
receive justice was through Cunningham’s conviction.        Cunningham did not
object to the comment and waived all but plain error.




                                        24
                               January Term, 2004




       {¶ 86} Isolated comments by a prosecutor are not to be taken out of
context and given their most damaging meaning. See Donnelly v. DeChristoforo
(1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431; State v. Hill (1996), 75
Ohio St.3d 195, 204, 661 N.E.2d 1068. The “justice” comment was within the
creative latitude accorded both parties in closing argument. See, e.g., State v.
Nields (2001), 93 Ohio St.3d 6, 38, 752 N.E.2d 859. The comment that Jayla
Grant “was never given a chance” represented fair commentary on the evidence
because Cunningham had rejected numerous pleas to spare her life. See State v.
Clemons (1998), 82 Ohio St.3d 438, 452, 696 N.E.2d 1009.
       {¶ 87} Similarly, the prosecutor’s comment characterizing the murders as
“the most cold-blooded calculated inhumane murder” fell within the latitude
permitted to both parties. See State v. Brown (1988), 38 Ohio St.3d 305, 317, 528
N.E.2d 523. See, also, e.g., State v. Grant (1993), 67 Ohio St.3d 465, 484, 620
N.E.2d 50; State v. Greer (1988), 39 Ohio St.3d 236, 251, 530 N.E.2d 382. Even
if these comments were improper, nothing suggests that but for these comments,
the outcome of Cunningham’s trial would have been otherwise. See State v. Bies
(1996), 74 Ohio St.3d 320, 326, 658 N.E.2d 754.
       {¶ 88} Cunningham also claims that prosecutorial misconduct occurred
during the penalty phase.    He first contends that the prosecutor improperly
commented that his unsworn statement prevented cross-examination. We reject
this argument. See State v. Smith (2000), 87 Ohio St.3d 424, 444, 721 N.E.2d 93;
State v. Davis (1996), 76 Ohio St.3d 107, 119-120, 666 N.E.2d 1099.
       {¶ 89} Cunningham contends that the prosecutor mischaracterized the
mitigating evidence throughout closing argument by advising the jury to weigh
evidence other than the mitigation evidence presented by the defense. As a result,
Cunningham argues, the prosecutor improperly injected nonstatutory aggravating
circumstances into the penalty-phase weighing process. Cunningham failed to




                                       25
                            SUPREME COURT OF OHIO




object, however, and waived all but plain error. Slagle, 65 Ohio St.3d at 604, 605
N.E.2d 916.
       {¶ 90} Here, each of the comments complained of related to evidence
presented during the penalty phase. Prosecutors are entitled to urge the merits of
their cause and legitimately argue that defense mitigation evidence is worthy of
little or no weight. Wilson, 74 Ohio St.3d at 399, 659 N.E.2d 292. Although
some comments could have been more artfully stated, the prosecutor never argued
nonstatutory aggravating circumstances to the jury or urged the jury to weigh
mitigating evidence as aggravating. Moreover, the trial court correctly instructed
the jury on the aggravating circumstance and on the proper standard to apply in
the weighing process. See Smith, 87 Ohio St.3d at 444, 721 N.E.2d 93. It is
presumed that the jury followed the court’s instructions. State v. Loza (1994), 71
Ohio St.3d 61, 79, 641 N.E.2d 1082. Accordingly, we find no plain error.
       {¶ 91} Finally, Cunningham contends that the cumulative effect of
misconduct impaired the overall fairness of his trial. This argument is without
merit. See, e.g., Landrum, 53 Ohio St.3d at 113, 559 N.E.2d 710; Smith, 87 Ohio
St.3d at 444-445, 721 N.E.2d 93. We reject proposition of law VIII.
                INEFFECTIVE ASSISTANCE OF COUNSEL
       {¶ 92} In proposition of law IX, Cunningham makes various claims of
ineffective assistance of counsel. Reversal of a conviction or sentence based upon
ineffective assistance of counsel requires that the defendant show that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced
the defense so as to deprive the defendant of a fair trial. Strickland v. Washington
(1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶ 93} Inadequate voir dire. Cunningham claims that counsel failed to
adequately question prospective jurors regarding their exposure to a billboard
erected in Lima after the shootings. The billboard was part of a community action
campaign designed to fight violence and was erected in response to the shootings




                                        26
                                January Term, 2004




in this case and an unrelated firebombing in Lima. The billboard displayed a
picture of Jayla Grant, Leneshia Williams’s name, and the names of four children
killed in a firebombing, and included the words “Stop the Violence.”
       {¶ 94} Cunningham’s trial counsel asked two potential jurors about the
billboard, and one juror had seen it. Juror No. 13, who sat on Cunningham’s jury,
saw the billboard but said that she had not formed any opinion about
Cunningham’s guilt or innocence because of the billboard. Cunningham argues
that after discovering that one juror had seen the billboard, his trial counsel should
have questioned the other potential jurors to determine whether they had seen the
billboard and, if so, whether they were prejudicially affected.
       {¶ 95} Trial counsel, who saw and heard the jurors, were in the best
position to determine the extent to which prospective jurors should be questioned.
State v. Murphy (2001), 91 Ohio St.3d 516, 539, 747 N.E.2d 765; State v. Braden,
98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, at ¶ 108. As discussed in
proposition of law V, both counsel and the trial court thoroughly questioned
potential jurors regarding their exposure to pretrial publicity. Those jurors who
had formed fixed opinions about the case were excused. Trial counsel’s failure to
ask other jurors about the billboard did not reflect deficient performance.
       {¶ 96} Failure to support change of venue. Cunningham claims that
counsel were ineffective by failing to adequately support the motion for change of
venue. In the motion, counsel represented that they would produce evidence in
support of their request to change venue should the trial court decide to hold an
evidentiary hearing. Cunningham concedes that the trial court never held an
evidentiary hearing but nevertheless contends that counsel were ineffective for
failing to proffer newspaper clippings to support the motion.
       {¶ 97} Cunningham has not shown that trial counsel’s failure in this
regard deprived him of a fair trial. The trial court was well aware of the extent of
media coverage and pretrial publicity because most prospective jurors




                                         27
                            SUPREME COURT OF OHIO




acknowledged during voir dire that they had heard something about the case. The
trial court and counsel thoroughly questioned prospective jurors regarding their
exposure to pretrial publicity, and the trial court readily excused potential jurors
who could not be fair and impartial. It is not clear how defense counsel’s failure
to submit newspaper clippings about the case would have affected the trial court’s
decision to deny a change of venue. Therefore, no basis exists to find deficient
performance or prejudice. State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373, paragraph two of the syllabus, following Strickland, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶ 98} Failure to object to photographic evidence.             Cunningham
contends that counsel performed ineffectively when they failed to object to
irrelevant, repetitive, and cumulative photographs. As discussed in proposition
VI, all of these photographs were relevant, probative of disputed issues, and
nonprejudicial. Thus, the photographs were properly admitted, and counsel’s
failure to object did not affect the outcome of Cunningham’s trial. See, e.g., State
v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, at ¶ 159. For the
same reasons, we reject Cunningham’s claim regarding counsel’s failure to object
to the admission of exhibits during the mitigation phase.
       {¶ 99} Failure to object to Crim.R. 16(B)(1)(g) inspection. Cunningham
alleges that trial counsel were ineffective for failing to object to the procedure
employed by the trial court in conducting its Crim.R. 16(B)(1)(g) inspection of
witness statements. Counsel should have objected to the manner in which the trial
court conducted the in camera inspections and asked to personally review the
witnesses’ pretrial statements.     See proposition of law I.         Nevertheless,
Cunningham has not established prejudice, i.e., a reasonable probability that the
result of his trial would have been different if an objection had been raised and
counsel had been allowed to participate in the inspections. See State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.




                                        28
                               January Term, 2004




       {¶ 100} Ineffective penalty-phase closing argument.            Cunningham
argues that counsel’s penalty-phase closing argument was too brief and that
counsel failed to argue relevant and humanizing defense mitigation testimony.
Cunningham further contends that counsel should have made a more “powerful
plea” to spare Cunningham’s life. We rejected a similar argument in State v.
Bradley, 42 Ohio St.3d at 144, 538 N.E.2d 373, finding that it is “nearly
impossible for a reviewing court to discern the amount of emotion or feeling the
argument showed.”
       {¶ 101} Moreover, judicial scrutiny of counsel’s performance must be
highly deferential, and reviewing courts should refrain from second-guessing
tactical decisions of trial counsel. Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80
L.Ed.2d 674. During closing argument, Cunningham’s counsel set forth the four
sentencing options, outlined the mitigating factors established by the evidence,
and asked the jury to consider those factors in making a determination. Counsel
also informed jurors that they did not have to unanimously agree on the existence
of mitigating factors before considering them against the aggravating
circumstance, that any one mitigating factor is sufficient to support a life
sentence, and emphasized that one juror alone could prevent the death penalty.
Counsel also argued that Cunningham had accepted responsibility for his actions
and shown remorse.       Whether defense counsel should have spoken more
forcefully in urging a life sentence is a tactical question, and Cunningham has
failed to establish that counsel’s performance fell below an objective standard of
reasonable representation. See State v. Ballew (1996), 76 Ohio St.3d 244, 256-
257, 667 N.E.2d 369.
       {¶ 102} Failure to object to prosecutorial misconduct. Cunningham also
claims deficient performance in trial counsel’s failure to object to various
instances of prosecutorial misconduct.       As mentioned in our discussion of
proposition of law VIII, none of the alleged instances of prosecutorial misconduct




                                        29
                             SUPREME COURT OF OHIO




prejudicially affected Cunningham’s substantive rights. Therefore, trial counsel
were not ineffective for failing to object to the prosecutor’s allegedly improper
comments.
       {¶ 103} Failure to object to instructions.          Cunningham claims that
counsel were ineffective in failing to object to the trial court’s jury instructions on
witness credibility and reasonable doubt. In propositions of law II and XII,
however, we concluded that those instructions were not erroneous. Consequently,
counsel were not ineffective for failing to object.
       {¶ 104} Failure to present mitigation evidence. Cunningham claims that
counsel were ineffective during the penalty phase of his trial because they failed
to present certain mitigation evidence and argue that his lesser role in the offenses
was a mitigating factor under R.C. 2929.04(B)(6). Cunningham contends that
trial counsel should have attempted to introduce Cunningham’s pretrial statement
to police in which he asserted that his weapon was inoperable and, as a result, he
did not fire any shots in Shane Liles’s apartment. For the following reasons, we
conclude that defense counsel were not ineffective for failing to offer
Cunningham’s pretrial statement as mitigating evidence.
       {¶ 105} Cunningham’s pretrial statement is hearsay and does not fall
within any exception to the hearsay rule. Although Cunningham’s statement is
that of a party opponent, Evid.R. 801(D)(2) by its terms applies only to statements
offered against a party. See In re Coy (1993), 67 Ohio St.3d 215, 217-218, 616
N.E.2d 1105.     A party may not introduce his own statement under Evid.R.
801(D)(2)(a). Id., citing Staff Note to Evid.R. 801(D)(2). Thus, Cunningham’s
trial counsel cannot be deemed ineffective for failing to introduce an inadmissible
statement.
       {¶ 106} Cunningham has not established that he was prejudiced by
counsel’s failure to offer his statement into evidence during the penalty phase.
Cunningham’s argument that his pretrial statement, if offered and admitted, would




                                          30
                                January Term, 2004




have altered the jury’s recommendation of death is purely speculative.
Cunningham claims that physical evidence found at the scene corroborates his
claim that he never fired his gun. Several eyewitnesses who testified at trial,
however, contradicted this evidence. Thus, Cunningham has not shown that there
was a reasonable probability that his sentence would have been different had his
pretrial statement been introduced. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373,
at paragraph three of the syllabus.
       {¶ 107} R.C. 2929.04(B)(6) provides that, if the defendant was a
participant in the offense but not the principal offender, “the degree of the
offender’s participation in the offense and the degree of the offender’s
participation in the acts that led to the death of the victim” are to be considered
and weighed against the aggravating circumstances. Cunningham’s guilt was by
complicity and not as a principal offender. Nevertheless, defense counsel could
have reasonably concluded, in light of Cunningham’s significant involvement in
the planning and execution of the crimes, that the R.C. 2929.04(B)(6) factor was
worth little, if any, weight in mitigation.        Judicial scrutiny of counsel’s
performance must be highly deferential, and strategic decisions made after
thorough investigation of plausible options are virtually unchallengeable.
Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶ 108} Cunningham has not established prejudice arising from counsel’s
decision not to argue the R.C. 2929.04(B)(6) mitigating factor. See State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph two of the syllabus.
During the penalty phase, the jury was well aware of evidence from the guilt
phase regarding Cunningham’s status as a nonprincipal offender and his role in
the offenses. The trial court instructed the jury that it was not limited to specific
mitigating factors and “should consider any other mitigating factors that weigh in
favor of a sentence other than death.” Counsel were not ineffective for failing to




                                         31
                              SUPREME COURT OF OHIO




argue Cunningham’s lesser role in the murders as an R.C. 2929.04(B)(6)
mitigating factor.
           {¶ 109} Supplemental     ineffective-counsel   claims.      Cunningham
submitted a supplemental brief to proposition of law IX claiming that counsel
failed to adequately question potential jurors regarding information contained in
their juror questionnaires.      Cunningham claims that defense counsel were
ineffective in failing to ask juror No. 21 whether her job as a crisis counselor for
crime victims would affect her ability to be fair or cause her sympathy for the
victims to overwhelm her judgment. Contrary to Cunningham’s claim, defense
counsel asked juror No. 21 whether her position at children’s services, and the
fact that a three-year-old child had been killed, would affect her ability to be fair
and impartial. Juror No. 21 indicated that her job would not cause her to be
biased against Cunningham.
           {¶ 110} Cunningham also complains that juror No. 37 expressed an
automatic pro-death-penalty stance in her questionnaire but that counsel failed to
ask any questions to determine whether this juror would in fact automatically vote
for the death penalty. This allegation is not true. Defense counsel asked juror No.
37 whether she would automatically vote for the death penalty if Cunningham
were found guilty.      Defense counsel also asked whether she would consider
mitigating factors even if they conflicted with her own beliefs. Juror No. 37
stated that she would follow the court’s instructions and consider mitigating
factors.
           {¶ 111} We reject proposition of law IX.
                   CONSTITUTIONALITY/SETTLED ISSUES
           Residual Doubt
           {¶ 112} In proposition of law XI, Cunningham requests that we
reconsider our decision in State v. McGuire (1997), 80 Ohio St.3d 390, 686
N.E.2d 1112, and give weight to residual doubt as a mitigating factor when




                                          32
                               January Term, 2004




conducting our independent review of his death sentence. We decline to do so.
See Green, 90 Ohio St.3d at 360, 738 N.E.2d 1208. Accordingly, proposition of
law XI is denied.
       Reasonable Doubt
       {¶ 113} Cunningham challenges          the trial   court’s instruction    on
reasonable doubt, which was in accord with R.C. 2901.05(D).               We have
previously rejected complaints against the statutory definition. See, e.g., State v.
Van Gundy (1992), 64 Ohio St.3d 230, 232, 594 N.E.2d 604; Getsy, 84 Ohio St.3d
at 202, 702 N.E.2d 866. The reasonable-doubt instruction given in the sentencing
phase was consistent with our suggested instruction in State v. Goff (1998), 82
Ohio St.3d 123, 132, 694 N.E.2d 916. We reject proposition of law XII.
       Constitutionality of Death Penalty
       {¶ 114} We reject Cunningham’s various constitutional challenges to
Ohio death-penalty statutes in proposition of law XIII. Ohio’s capital sentencing
scheme is constitutional. See, e.g., Clemons, 82 Ohio St.3d at 454, 696 N.E.2d
1009; State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668; State v. Evans (1992), 63
Ohio St.3d 231, 253-254, 586 N.E.2d 1042. Cunningham’s international-law
claims are rejected on the authority of State v. Ashworth (1999), 85 Ohio St.3d 56,
70, 706 N.E.2d 1231, and Phillips, 74 Ohio St.3d at 103-104, 656 N.E.2d 643.
                INDEPENDENT SENTENCE EVALUATION
       Penalty Phase
       {¶ 115} At the penalty phase, Cunningham called three mitigation
witnesses and made an unsworn statement. Tara Cunningham, Cunningham’s
sister, testified that their father abandoned the family when the children were
young. Cunningham’s mother, Betty, had a violent relationship with Cleveland
Jackson Sr., Betty’s live-in boyfriend and the father of Cleveland Jackson Jr.,
Cunningham’s accomplice. Cleveland Sr. also physically abused the children,




                                        33
                             SUPREME COURT OF OHIO




including Cunningham. Betty stabbed Cleveland Sr. to death in front of the
children.
       {¶ 116} Tara said that Cunningham is a good brother. After Cleveland
Sr.’s death, the children lived mainly with their grandmother because Betty was
using drugs and sometimes abandoned the children for days at a time. During this
time, Cunningham helped care for his siblings and “did a good job.” Cunningham
was not then close with his mother, and Tara claimed that Betty physically abused
Cunningham.      Betty had a string of boyfriends, and these boyfriends also
physically abused Cunningham and the other children. Finally, Tara recalled
three instances when children’s services placed the children in foster homes.
       {¶ 117} Betty Cunningham testified that Cunningham was the oldest of
five children. His biological father, Larry, was not involved in his life. After
Betty and Larry divorced, Betty lived with Cleveland Jackson Sr. Cleveland was
a father figure to Cunningham, and he and Cunningham “got along well.”
Cleveland would “whip” the children with a belt “like any normal parent would.”
Betty would also “whip [Cunningham’s] butt” with a belt to discipline him, but
she denied allegations that she used a stick.
       {¶ 118} Betty described her own relationship with Cleveland Sr. as
abusive and said that the children witnessed this abuse. Betty ultimately grew
tired of the abuse and stabbed Cleveland with a kitchen knife, killing him. She
claimed that Cunningham and the other children witnessed the killing.
       {¶ 119} When the children were younger, Betty never worked but
received disability income. Cleveland Sr. contributed to the household income.
Betty admitted that she did not properly care for her children because of her drug
use and that her mother became their primary caretaker. Betty assumed that the
children knew she was abusing drugs and alcohol and said that children’s services
became involved with the family when the children were relatively young.




                                         34
                               January Term, 2004




        {¶ 120} Betty denied being diagnosed with a mental illness.           She
admitted to a suicide attempt when her father died, but this incident occurred
before she had children. Betty knows that her son did wrong but asked the jury to
spare his life because he always visited her in the nursing home and she needs her
son.
        {¶ 121} Dr. Daniel L. Davis, a licensed forensic psychologist, conducted
three evaluations of Cunningham, consulted with others, and examined various
records relating to Cunningham. Prior to trial, Davis found that Cunningham was
competent to stand trial and determined that he was sane at the time of the
offenses.
        {¶ 122} Davis also reviewed the mental-health records of Cunningham’s
parents. Cunningham’s father, Larry, had a lengthy history of psychological
problems. Larry spent a number of years in a psychiatric hospital in Alabama,
and Cunningham had had virtually no contact with his father. The records that
Davis reviewed indicated that Larry suffered from serious mental illness, most
likely schizophrenia. Davis noted that he had not personally examined Larry, and
he could not confirm this diagnosis within a reasonable degree of medical
certainty.
        {¶ 123} Davis also reviewed medical and mental-health records
pertaining to Betty Cunningham.      Betty has an extremely lengthy history of
mental-health treatment, as well as substance-abuse problems, and a lengthy
involvement with the Allen County Juvenile Court and Allen County Department
of Children Services. Davis was able to interview Betty and described her as “an
individual who throughout her adult life at least has not been able to care for
herself or her children at an independent level” and remains that way today. He
added that Betty, currently in a residential care setting, receives psychiatric
medications as well as medications for her physical health.




                                        35
                            SUPREME COURT OF OHIO




       {¶ 124} In Davis’s view, having parents who are so damaged most likely
had a very severe impact upon Cunningham “because children of mentally ill
parents are at a greater risk to inherit the tendency for certain mental illnesses”
and are at “greater risk for developing severe emotional problems.” Davis also
emphasized that being raised in an unstable home harmed Cunningham’s chances
of developing important social, educational, and vocational skills. Cunningham
was often left alone and unsupervised. His mother abused illegal substances and
alcohol. He was physically abused, lacked positive role models, and had multiple
foster homes. Davis opined that Cunningham’s parents’ emotional problems,
coupled with the environment he was raised in, made Cunningham more
vulnerable to mental illness and behavioral problems.
       {¶ 125} Davis found that Cunningham was not mentally retarded, but he
did have an antisocial personality disorder and suffered from chronic depression.
Cunningham also has a history of substance abuse that began in early
adolescence. At age 16, Cunningham was an alcoholic who also abused cocaine
and marijuana.     Davis found that Cunningham’s substance abuse “probably
stems” from “self treatment of depression,” “biological vulnerabilities,” i.e., his
mother’s addiction to drugs and alcohol, and Cunningham’s “association with
negative peers.”
       {¶ 126} The first documented diagnosis of depression was in 1997, when
Cunningham was incarcerated, but it was believed that Cunningham had suffered
from depression since the age of 13. Davis diagnosed Cunningham as suffering
from “major depression,” though “not the kind of depression that is accompanied
by severe symptoms of mental illness.” This type of depression “comes and
goes” and is often influenced by situations. Davis determined that Cunningham’s
depression is a mental disorder, not a mental illness, which is a “combination of
the history factors” previously mentioned. Although Cunningham’s depression




                                        36
                               January Term, 2004




never rose to the level of a mental illness, Davis concluded that “it certainly did
have an impact upon his functioning as a person.”
        {¶ 127} In Cunningham’s unsworn statement, he told the jury that he
knows it is impossible to take away the pain, misery, and grief that he caused.
Cunningham took “full responsibility for [his] actions in this incident.” He also
said that he cannot bear the anger that the victims’ families have towards him, but
that he understands and is sorry. Finally, Cunningham asked the jurors to spare
his life.
        Sentence Evaluation
        {¶ 128} In proposition of law III, Cunningham contends that his death
sentence is inappropriate. He argues that his childhood, his role in the offenses,
and his expressed remorse all favor a life sentence. Based on our independent
review, we reject this argument. R.C. 2929.05.
        {¶ 129} The    jury   convicted        Cunningham   of   two   death-penalty
specifications: R.C. 2929.04(A)(5), aggravated murder as part of a course of
conduct to kill two or more persons, and R.C. 2929.04(A)(7), aggravated murder
during an aggravated robbery involving prior calculation and design.            For
purposes of sentencing, the trial court merged the two aggravating circumstances
and submitted only the course-of-conduct specification to the jury.
        {¶ 130} After independent assessment, we find that the evidence
establishes beyond a reasonable doubt the R.C. 2929.04(A)(5) aggravating
circumstance charged against Cunningham. As to both Count One, the murder of
Jayla Grant, and Count Two, the murder of Leneshia Williams, the offenses were
part of a course of conduct involving the purposeful killing of or attempt to kill
two or more persons.
        {¶ 131} We find nothing in the nature and circumstances of the offenses
to be mitigating. Cunningham and Jackson formulated a plan to rob Shane Liles,
a known drug dealer. Cunningham forced Goodloe and Coron Liles at gunpoint




                                          37
                           SUPREME COURT OF OHIO




into Shane’s kitchen, striking Coron in the face and breaking his jaw.
Cunningham then held Goodloe, Coron, Armetta Robinson, Leneshia Williams,
Tomeaka, James, and Jayla Grant at gunpoint in the kitchen while Jackson robbed
Shane of money and drugs in an upstairs bedroom. After the hostages were
forced to relinquish money, jewelry, and watches, Cunningham and Jackson
opened fire on the group, killing Jayla and Leneshia and wounding the rest of the
victims.
       {¶ 132} Cunningham’s history and background provide some mitigating
features. Cunningham had a troubled, unstable upbringing and received little, if
any, moral guidance, emotional support, or affection.      Cunningham’s father
abandoned him at an early age and was not involved in his life. His mother has a
lengthy history of mental-health and substance-abuse problems. Because of her
problems, Betty failed to properly care for Cunningham. He was often neglected
and abandoned; there were several reported instances of physical abuse and
several referrals to children’s services. Cunningham started abusing drugs and
alcohol as a teenager and was believed to have suffered from depression since age
13. Cunningham never graduated from high school; he obtained his GED while
incarcerated. In addition, when he was younger, Cunningham apparently saw his
mother kill Cleveland Jackson Sr.
       {¶ 133} We have upheld the death penalty against defendants with
backgrounds similar to, or worse than, Cunningham’s. See State v. Campbell
(2002), 95 Ohio St.3d 48, 50-54, 765 N.E.2d 334; Biros, 78 Ohio St.3d at 455-
457, 678 N.E.2d 891. In this case, we accord only modest mitigating weight to
Cunningham’s history and background. See, e.g., Grant, 67 Ohio St.3d at 486,
620 N.E.2d 50; Jones, 91 Ohio St.3d at 357, 744 N.E.2d 1163.
       {¶ 134} We accord no weight in mitigation to Cunningham’s character.
Although Cunningham was described as a good son who cares for his mother and




                                       38
                                January Term, 2004




a good brother who helped take care of his siblings, he was also a long-time
abuser of drugs and alcohol and sold drugs as well.
       {¶ 135} No evidence was presented in regard to R.C. 2929.04(B)(1)
(victim inducement) or (B)(2) (duress, coercion, or strong provocation). Dr.
Davis testified that Cunningham was sane at the time of the offenses and that he
understood the wrongfulness of his acts. In addition, Cunningham was 29 years
old at the time of the offenses and had previously been convicted of felonious
assault involving a firearm. The mitigating factors in R.C. 2929.04(B)(3) (mental
disease or defect), (B)(4) (youth of offender), and (B)(5) (lack of a significant
criminal history) are therefore inapplicable.
       {¶ 136} R.C. 2929.04(B)(6) (accomplice only) directly applies as a
mitigating factor because Cunningham was indicted, tried, and convicted as an
accomplice, not as a principal offender. Nevertheless, after reviewing the facts of
this case, we give no weight to the R.C. 2929.04(B)(6) mitigating factor.
Although the evidence does not establish that Cunningham actually killed either
victim, State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, he was a
crucial participant in the murders. But for Cunningham’s involvement, Jayla
Grant and Leneshia Williams would not have been killed. See State v. Issa
(2001), 93 Ohio St.3d 49, 71, 752 N.E.2d 904.
       {¶ 137} As to the R.C. 2929.04(B)(7) “other factor[s],” Cunningham’s
antisocial personality disorder, his depression, and his dependence on alcohol and
drugs collectively deserve some weight in mitigation. See, e.g., Wilson, 74 Ohio
St.3d at 400-401, 659 N.E.2d 292. Cf. Biros, 78 Ohio St.3d at 457, 678 N.E.2d
891 (defendant’s personality disorder, lifelong alcohol dependence, and
depression collectively entitled to some, but very little, weight in mitigation). The
love and support of Cunningham’s family also qualify as “other factor[s]” and are
entitled to some weight. See, e.g., Fox, 69 Ohio St.3d at 194-195, 631 N.E.2d
124.




                                         39
                              SUPREME COURT OF OHIO




       {¶ 138} Cunningham’s personality disorder was likely the result of his
troubled and dysfunctional upbringing. Nevertheless, we generally accord such
disorders little weight. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430,
811 N.E.2d 48, at ¶ 119; Wilson, 74 Ohio St.3d at 400-401, 659 N.E.2d 292.
Cunningham’s severe depression is a weak mitigating factor. See, e.g., State v.
White (1999), 85 Ohio St.3d 433, 456, 709 N.E.2d 140. Davis testified that
Cunningham’s incarceration exacerbated his depression. Although Cunningham’s
depression “did have an impact upon his functioning as a person,” Davis never
indicated what role, if any, that depression played in these crimes. See, e.g., State
v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, at ¶119; White,
85 Ohio St.3d at 456, 709 N.E.2d 140. Similarly, it has not been shown that
Cunningham’s substance abuse affected his judgment or played a part in these
murders.    Cf. Hartman, 93 Ohio St.3d at 306, 754 N.E.2d 1150.              Finally,
Cunningham’s expression of remorse in his unsworn statement is entitled to little
weight. See State v. Keene (1998), 81 Ohio St.3d 646, 671, 693 N.E.2d 246
(remorse entitled to little weight in mitigation).
       {¶ 139} Cunningham’s collective mitigation evidence is modest when
compared with the aggravating circumstance.           Based on the evidence, we
conclude that the course-of-conduct aggravating circumstance in Count One, the
murder of Jayla Grant, outweighs Cunningham’s combined mitigating factors
beyond a reasonable doubt. We also find that the course-of-conduct aggravating
circumstance in Count Two, the murder of Leneshia Williams, outweighs
Cunningham’s combined mitigating factors beyond a reasonable doubt.
Therefore, we find that the sentence of death is appropriate in this case.
       {¶ 140} Finally, we conclude that the death sentences imposed here are
proportionate to death sentences affirmed in other cases of aggravated murder as a
course of conduct involving the purposeful killing of two or more persons. See,
e.g., State v. Keith (1997), 79 Ohio St.3d 514, 684 N.E.2d 47; State v. Frazier




                                          40
                               January Term, 2004




(1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Cooey, 46 Ohio St.3d 20, 544
N.E.2d 895; State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894.
       {¶ 141} Accordingly,      we   affirm   Cunningham’s    convictions   and
sentences, including the sentence of death.
                                                              Judgment affirmed.
       MOYER, C.J., RESNICK, F.E. SWEENEY, LUNDBERG STRATTON, O’CONNOR
and O’DONNELL, JJ., concur.
                              __________________
       David E. Bowers, Allen County Prosecuting Attorney, and Jana E.
Gutman, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Public Defender, Pamela Prude-Smithers and Kelly L.
Culshaw, Assistant Public Defenders, for appellant.
                            _____________________




                                        41
