State v. Conway (108 Ohio St. 3d 214, 2006)

Lanzinger, J.

{¶ 1} On January 19, 2002, Jason Gervais was shot and killed and Mandel Williams was shot and wounded outside a strip bar in Columbus, Ohio. James T. Conway III was indicted, tried, and convicted by a jury of the aggravated murder of Gervais. He now appeals his convictions and sentence of death.

{¶ 2} Evidence at the trial revealed that on the evening of January 18, 2002, Conway met a group of friends at Dockside Dolls, a strip bar in Columbus, Ohio. Among the'group was Conway’s brother, Jeff Conway. Conway and his friends had visited Dockside Dolls (“Dockside”) regularly during the previous month. The group was well known at Dockside, having spent large sums of money buying expensive bottles of champagne and giving generous tips to the dancers and staff.

{¶ 3} At closing time, approximately 2:30 a.m. on January 19, 2002, a fight erupted in the Dockside parking lot. Witness accounts varied. Some described the fight as a racial confrontation between a large group of white males (Conway’s group) and a smaller group of black males. Others did not believe that the fight was racially charged. The brawl lasted several minutes and involved between 25 and 40 people.

{¶ 4} During the fighting, Mandel Williams, who was part of the group of black males, cut Conway’s brother Jeff with a knife. Jeff told his brother that he had been cut and pointed out Williams as his attacker.

{¶ 5} At this point, some witnesses heard someone say, “I’m going to get my gun.” Conway and his friend, Rob Myers, went to a car parked just east of the club’s entrance, from which Myers retrieved a .45-caliber semiautomatic handgun. Either Conway or Myers cleared a round from the gun and chambered a live round. When Conway took the gun from Myers, one witness heard Conway say, “I’ll kill you guys.”

{¶ 6} Conway then moved fast through the parking lot toward Williams. When he was within 30 feet, Conway began shooting at Williams. According to some witnesses, after Conway began shooting, Williams and Jason Gervais, an innocent bystander, became entangled. Others testified that Williams had pulled Gervais into the line of fire in an effort to avoid being shot. In either event, Conway continued to shoot at both Williams and Gervais as he walked toward them. In the end, Conway emptied his weapon, firing a total of eight shots at the two. Conway was within eight feet of Williams and Gervais when he fired the last shots into them as they lay on the ground. After the shooting, Conway and the other members of his group, including his brother, fled the scene and went to Big Mike’s Palace, an after-hours nightclub.

{¶ 7} Gervais had been hit four times — once in his left lower back, once in his upper left leg, once in his right buttock, and once in his lower left leg — and died as a result of the bullet that entered his back, which penetrated his left lung. Williams had also been hit four times — once in his left shoulder, once in his left wrist, once in his left knee, and once in his right ankle — but survived.

{¶ 8} Conway was indicted on three counts, including one count of aggravated murder. Count 1 charged that he purposely and with prior calculation and design caused the death of Gervais, R.C. 2903.01(A); Count 2 charged him with the attempted aggravated murder of Williams, R.C. 2923.02(A) and 2903.01(A); Count 3 charged him with having a weapon while under a disability, R.C. 2923.13.

{¶ 9} The aggravated-murder count contained a death-penalty specification, charging aggravated murder as part of a course of conduct involving the purposeful killing or attempt to kill two or more persons. R.C. 2929.04(A)(5). Counts 1 and 2 also contained firearm specifications.

{¶ 10} During the jury trial, the state called Ronald Trent as a witness. Trent was Conway’s cellmate following Conway’s arrest on February 23, 2002. After discovering that Trent was a distant cousin, Conway confided to Trent that he was the Dockside shooter. Conway told Trent that he had shot Williams for cutting his brother, Jeff. According to Trent, Conway was not concerned when Gervais had gotten in the way, because Conway had had a .45-caliber handgun and knew that the bullets would go through Gervais and hit Williams.

{¶ 11} During their incarceration, Conway also attempted to involve Trent in a plot to kill Brian McWhorter, who had been with Conway at Dockside on the night of the shooting. Because Conway was concerned that McWhorter would testify against him, he offered Trent $30,000 to kill McWhorter and gave him $5,000 as an advance payment. In addition, Conway wanted Trent’s help in a scheme to manufacture evidence by videotaping a person who resembled Conway confessing to the Dockside shooting.

{¶ 12} The state called Mark J. Hardy, a firearms and ballistic expert with the Columbus Police Department. Hardy identified all spent shell casings and bullets and one live round recovered from the scene as .45-caliber ammunition. No weapon was recovered, but Hardy was able to establish that all spent bullets and casings had been fired from the same weapon.

Defense Case

{¶ 13} At trial, the defense called Ron Edwards, a criminal investigator, and Conway’s brother, Jeff Conway, also testified.

{¶ 14} Edwards had photographed the crime scene and testified regarding what he believed to be bullet strikes on the side of the Dockside building where the shooting had occurred. Edwards testified that the bullet strikes were knee-high. On cross-examination, Edwards admitted that he did not know how long these marks had been on the building or whether they were even related to this shooting.

{¶ 15} Jeff Conway testified that as he was leaving Dockside on the night of the shooting, a man named Corey started an argument with him, and they began to fight. The two had been on bad terms since high school. During the fight, one of Corey’s friends grabbed Jeff and placed him in a headlock. Corey hit Jeff, and then Williams cut Jeff twice across his midsection. Jeff testified that he was “cut open pretty bad” and felt blood running down his stomach.

{¶ 16} After Jeff was cut, he was scared and went to his brother in the parking lot, telling him he had been cut. Jeff then started walking to his car. Before he reached the car, he saw Williams coming at him again. Jeff testified that he had seen that Williams had something in his hand. Jeff testified, “I thought he was coming back to finish me off.” He pointed at Williams and yelled, “He’s coming at me.” Jeff then heard gunshots and saw Williams jump back and pull Gervais in front of him, both falling to the ground.

{¶ 17} On cross-examination, Jeff said that he had not seen who had shot Williams and Gervais. Jeff insisted that he did not know whether his brother was the Dockside shooter and denied ever discussing the shooting with Conway. Jeff could not explain why he did not report the knife attack to the police.

{¶ 18} Conway testified that after the fighting in the parking lot had stopped, Jeff walked up to him and said he had been cut. Jeff lifted his shirt, and Conway could see blood flowing from the wound. Conway thought that Jeff was seriously injured and decided to walk Jeff to his car. As they walked to Jeffs car, Conway stopped to talk with the owner of the bar about the fight.

{¶ 19} Conway then heard Jeff screaming, “There’s the guy; that’s him.” Conway testified that he looked up and saw Williams charging down the sidewalk at Jeff. Conway saw no weapon, but Williams was holding his hand down at his side, and Conway was sure that Williams still had a knife. Conway testified, “[W]hen I seen him coming at my brother, I looked around and Rob’s standing right beside me and he has a gun in his hand, so I just snatched it out of his hand and just started shooting at the ground, like trying to cut off where [Williams] was coming from.” Conway claimed that he had not been trying to kill Williams and so shot low, “like at his hip * * * to stop him from getting to [Jeff].” Conway said he was pulling the trigger as fast as he could and did not pause between shots. He claimed that he had had tunnel vision and had not seen Williams pull Gervais into the line of fire. He said he did not realize that he had shot Gervais until he stopped shooting and both Williams and Gervais were lying on the ground.

{¶ 20} Conway testified that when he saw Williams and Gervais on the ground, he was in shock, and his friends quickly pushed him into a car. Conway’s first thought was not to go to the police but to make sure Jeff was all right. Conway left the scene with his friends and went to Big Mike’s Palace because that was where Jeff had gone.

{¶ 21} On cross-examination, Conway testified that he had never talked about the Dockside shooting with his brother. Conway said he was mad that Jeff had been cut, but that his first concern was his brother and not going after Williams. Conway denied retrieving the gun from the car and did not see Myers remove the gun from the trunk. Conway described the gun as silver, with a gold Colt emblem on the handle. Police seized an empty Colt gun box from his house, but Conway denied owning a Colt handgun. Conway said he did not know what happened to the gun after the shooting. He also could not explain why he fired eight shots and emptied his weapon if he was trying only to stop Williams and not kill him.

{¶ 22} Conway initially denied telling Trent anything about the Dockside shooting, but later admitted discussing details about the Dockside shooting because Trent kept asking for information. Conway denied talking with Trent about killing McWhorter and also denied paying Trent $5,000. Conway also said that it was Trent’s idea to make a video staging a false confession.

Trial Result

{¶23} The jury convicted Conway of aggravated murder and of having a weapon while under a disability. The trial court mistakenly instructed the jury that the charge in Count 2 was attempted murder instead of attempted aggravated murder, as set forth in the indictment. As a result, the jury found Conway guilty of attempted murder in Count 2. (See discussion of proposition of law ten.) The jury also convicted Conway of the course-of-conduct death-penalty specification and the firearm specifications. After the penalty phase, the trial court sentenced Conway to death for the aggravated murder of Jason Gervais, consistent with the jury’s recommendation. The trial court imposed a prison sentence of ten years for Conway’s conviction for attempted murder, a three-year sentence for the firearm specification (the court merged the two specifications), and a 12-month sentence for having a weapon while under a disability, with all terms to be served consecutively.

{¶ 24} Following sentencing, Conway filed a motion for new trial. After an evidentiary hearing, the trial court denied the motion.

{¶ 25} The matter is now before us on a direct appeal from the trial court.

PRETRIAL ISSUES

Transferred Intent and Prior Calculation and Design

{¶ 26} In proposition of law ten, Conway claims that he could not be convicted of the aggravated murder of Gervais in Count 1, because Count 2 of the indictment charged only attempted murder (as opposed to attempted aggravated murder) of Williams. Conway submits that the absence of prior calculation and design from Count 2 bars his aggravated-murder conviction because that element could not be transferred to Count 1 under the state’s theory that the aggravated-murder charge rested on the doctrine of transferred intent.

{¶ 27} Contrary to Conway’s claim, Count 2 of the indictment did in fact charge him with attempted aggravated murder of Williams. Although the trial court mistakenly instructed the jury on attempted murder, and not attempted aggravated murder as set forth in Count 2 of the indictment, no prejudicial error resulted. The jury’s verdict finding Conway guilty of attempted murder was consistent with the trial court’s instructions and with the verdict forms. In addition, we have long held that counts of an indictment are not interdependent and that consistency between verdicts on multiple counts of an indictment is unnecessary. State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, paragraph two of the syllabus.

{¶ 28} We also find no merit to Conway’s contention that the jury failed to make the factual determination as to the existence of prior calculation and design. The trial court correctly instructed the jury on the elements of aggravated murder.

{¶ 29} Thus, we reject Conway’s claim that the aggravated-murder conviction was improper because of any perceived inconsistencies between the counts charged in the indictment or in the jury’s verdicts on Counts 1 and 2. Therefore, we overrule proposition of law ten.

Voir Dire

{¶ 30} In his eighth proposition of law, Conway claims that the trial court’s use of the word “recommendation” throughout voir dire deprived him of a fair trial. We conclude that there was no error.

{¶ 31} The trial court’s references to the jury’s penalty determination as a “recommendation” accurately reflected Ohio law, R.C. 2929.03(D), and were not made in a way that would diminish the jury’s sense of responsibility in voting for the death penalty. In fact, in the penalty phase, the trial court instructed that it was the jury’s “duty to determine the appropriate sentence for the Defendant in this case.” Therefore, we overrule Conway’s eighth proposition of law.

{¶ 32} Conway contends in his 14th proposition of law that error occurred during voir dire when prospective jurors were not questioned about racial bias. Conway claims that because racial issues permeated his entire case, the trial court was constitutionally required to question prospective jurors on racial prejudice.

{¶ 33} Conway relies primarily on Turner v. Murray (1986), 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27. In Tuner, the Supreme Court held that a “capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” Id. at 36-37, 106 S.Ct. 1683, 90 L.Ed.2d 27. However, the court further held that “a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.” Id. at 37, 106 S.Ct. 1683, 90 L.Ed.2d 27. The Turner court noted that the actual decision to question on racial prejudice is a choice best left to a capital defendant’s counsel. If defendant’s counsel declines to request voir dire on the subject of racial prejudice, the trial court need not broach the topic sua sponte. Id. at 37, 106 S.Ct. 1683, 90 L.Ed.2d 27, fn. 10; State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97.

{¶ 34} Conway never sought to question prospective jurors about racial bias. Thus, the trial court did not commit error in failing to inquire on the subject. Therefore, we reject Conway’s 14th proposition of law.

GUILT-PHASE ISSUES

Sufficiency of Evidence

{¶ 35} In proposition of law two, Conway argues that his conviction for aggravated murder was not supported by sufficient evidence. Specifically, Conway contends that the state failed to prove the element of prior calculation and design, as R.C. 2903.01(A) requires.

{¶ 36} In reviewing a record for sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The weight to be given the evidence and the credibility of witnesses are primarily jury issues. State v. Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819; State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212.

{¶ 37} Conway was convicted of one count of aggravated murder under R.C. 2903.01(A), which states: “No person shall purposely, and with prior calculation and design, cause the death of another * *

{¶ 38} Although the Revised Code does not define “prior calculation and design,” we have interpreted the phrase to require evidence of “more than the few moments of deliberation permitted in common law interpretations of the former murder statute, and to require a scheme designed to implement the calculated decision to kill.” State v. Cotton (1978), 56 Ohio St.2d 8, 11, 10 O.O.3d 4, 381 N.E.2d 190. While “ ‘[n]either the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves,’ ” momentary deliberation is insufficient. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 196, 616 N.E.2d 909, quoting the 1973 Legislative Service Commission Comment to R.C. 2903.01.

{¶ 39} Nevertheless, where the evidence presented at trial “reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified.” State v. Cotton, 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190, paragraph three of the syllabus.

{¶ 40} Evidence was presented at trial that as Dockside closed for business in the early morning hours of January 19, 2002, a fight broke out in the parking lot between Conway’s group and a group including Mandel Williams. During the altercation, Williams cut Conway’s brother, Jeff, with a knife. Jeff told his brother that he had been cut and identified Williams as the person who had cut him.

{¶ 41} At that point, some witnesses recalled hearing someone say, “I’m going to get my gun.” Conway and Rob Myers went to a parked car just east of the club’s entrance, and Myers retrieved a .45-caliber semiautomatic handgun from the trunk. Either Conway or Myers cleared a round from the gun and chambered a live round to make sure the gun was loaded. One witness testified that when Conway took the gun from Myers, Conway said, “I’ll kill you guys.”

{¶ 42} Conway then moved rapidly through the parking lot toward Williams and began shooting at Williams from a distance of approximately 30 feet. After Conway’s first shot struck Williams in the shoulder, Williams either grabbed Jason Gervais or they accidentally became entangled, and both Williams and Gervais fell to the ground as Conway continued to fire as he advanced toward them. Conway emptied his weapon into Williams and Gervais while they lay on the ground. By the time the last shots were fired, Conway was within eight feet of Williams and Gervais. According to Trent, Conway later told Trent that although Gervais was in the line of fire, he kept shooting because he had a .45 “and it would go through him [Gervais].”

{¶ 43} Construing the evidence in a light most favorable to the prosecution, any rational juror could have concluded beyond a reasonable doubt that Conway had formulated a plan to kill Williams in retaliation for Jeff Conway’s injury. After discovering that his brother had been cut, Conway announced his intention to get his gun and kill. After Jeff pointed out Williams as his attacker, Conway obtained and readied his weapon, fired shots while advancing toward Williams, and continued to shoot after Williams and Gervais lay wounded on the ground. Conway’s plan was to shoot and kill Williams. He never abandoned his scheme, even after Gervais entered his line of fire.

{¶ 44} That Conway killed Gervais instead of his intended victim, Williams, does not prevent a finding by the jury of prior calculation and design. “If one purposely causes the death of another and the death is the result of a scheme designed to implement the calculated decision to kill someone other than the victim, the offender is guilty of aggravated murder in violation of R.C. 2903.01(A).” State v. Solomon (1981), 66 Ohio St.2d 214, 20 O.O.3d 213, 421 N.E.2d 139, paragraph one of the syllabus.

{¶ 45} We have previously held that a defendant’s threat to obtain a weapon and kill his victim and his later actions carrying out the threat are enough to prove prior calculation and design. State v. Sowell (1988), 39 Ohio St.3d 322, 333, 530 N.E.2d 1294; see, also, State v. Toth (1977), 52 Ohio St.2d 206, 213, 6 O.O.3d 461, 371 N.E.2d 831; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 80-84. Pursuit of a wounded, helpless victim also has been held to be evidence of prior calculation and design. See, e.g., State v. Robbins (1979), 58 Ohio St.2d 74, 78-79, 12 O.O.3d 84, 388 N.E.2d 755 (defendant obtained a weapon from his apartment after fighting with victim in hallway, returned to hallway, and stabbed wounded, helpless victim to death); State v. Claytor (1991), 61 Ohio St.3d 234, 241, 574 N.E.2d 472 (defendant pursued wounded victim and shot him in the face); State v. Cotton, 56 Ohio St.2d at 9-10, 10 O.O.3d 4, 381 N.E.2d 190 (defendant wounded first police officer and, after shooting second officer, returned to kill first officer, who was trying to crawl away).

{¶ 46} We also find that there was sufficient time for Conway to formulate a plan to kill Williams. Damien LeCaptain, head of security for Dockside, testified that one and a half to two minutes passed between the time that Williams cut Conway’s brother and the time that Conway went to retrieve the gun from the car. Paris Long, a bouncer at the club, testified that from the time that Jeff said he was cut, two to two and half minutes passed until the first shots were fired. Finally, Michael Small, the floor manager at Dockside, testified that in the length of time between Jeffs saying that he was cut and shots being fired, Small was able to help an injured security guard from the parking lot to the front door of the bar, unlock the door, take the guard inside, and start walking back to the parking lot. Although they took only a few minutes, Conway’s actions went beyond a momentary impulse and show that he was determined to complete a specific course of action. Such facts show that he had adopted a plan to kill. See State v. Claytor, 61 Ohio St.3d at 241, 574 N.E.2d 472; State v. D’Ambrosio, 67 Ohio St.3d at 196, 616 N.E.2d 909.

{¶ 47} Furthermore, Conway’s confession to Trent, the government informant, essentially mirrors the evidence of prior calculation and design found in the eyewitness testimony. According to Trent, Conway told him that after Jeff was cut, Conway had Myers get a gun from the car and asked Jeff to point out the man who had cut him. Conway said that after Jeff identified Williams, he cocked the gun to make sure it was loaded and when a live round fell out, cocked it again. Conway then started shooting at Williams, whom Conway described as running away from him.

{¶ 48} When viewed in a light most favorable to the state, this evidence was sufficient to show that Conway had adopted a plan to kill Williams upon discovering that Williams had cut his brother and that Conway had carried out his plan. Therefore, we reject Conway’s second proposition of law.

Defendant’s Absence from Jury-Instruction Conference

{¶ 49} Conway argues in proposition of law three that the trial court violated his right to a fair trial by conducting critical stages of the trial outside his presence. Conway complains that he was not present for two conferences when proposed guilt-phase jury instructions were discussed.

{¶ 50} An accused has a fundamental right to be present at all critical stages of his criminal trial. Section 10, Article I, Ohio Constitution; Crim.R. 43(A). An accused’s absence, however, does not result in prejudicial or constitutional error unless “a fair and just hearing would be thwarted by [defendant’s] absence.” Snyder v. Massachusetts (1934), 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674. In United States v. Gagnon (1985), 470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.E.2d 486, the Supreme Court held that, in certain circumstances, a defendant’s absence from a discussion at which his counsel are present does not offend due process. See, also, e.g., State v. Williams (1983), 6 Ohio St.3d 281, 285-286, 6 OBR 345, 452 N.E.2d 1323 (defendant’s absence from in camera voir dire of allegedly tainted jurors was harmless error).

{¶ 51} The conference on jury instructions was held on January 29 and was continued on January 30, 2003. On January 29, before the conference began, the trial judge announced in open court that the parties would be meeting that afternoon to discuss the guilt-phase jury charge. No objection to Conway’s absence was raised until February 5, 2003, just before the start of the penalty phase. Conway’s failure to timely object constituted a waiver of his right to be present. State v. Palmer (1997), 80 Ohio St.3d 543, 559, 687 N.E.2d 685.

{¶ 52} We rejected the same argument in State v. White (1998), 82 Ohio St.3d 16, 26, 693 N.E.2d 772, finding that defendant’s absence during a hearing on proposed jury instructions did not deprive him of a fair trial. Other than claiming that he would have provided “invaluable” assistance to his counsel, Conway does not advance any argument that his absence prevented a fair trial. Therefore, we overrule proposition of law three.

Administration of Oath to Jury

{¶ 53} In his sixth proposition of law, Conway maintains that the trial court’s having the bailiff, rather than the clerk of the common pleas court, administer the oath to the jurors, as R.C. 2945.28 directs, was prejudicial. R.C. 2945.28 provides, “In criminal cases jurors and the jury shall take the following oath to be administered by the trial court or the clerk of the court of common pleas * *

{¶ 54} After the jury was selected, the trial judge directed his bailiff to administer the oath to the members of the jury and the alternate jurors. Conway, however, did not object to the bailiffs administering the oath and has waived all but plain error. See Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. Conway presented no evidence demonstrating that he was prejudiced by the failure of the trial court or clerk to administer the oath. Without a showing of prejudice, the trial court’s failure to strictly comply with R.C. 2945.28 does not require reversal of the jury’s verdict. See, e.g., State v. Boykin, Montgomery App. No. 19896, 2004-Ohio-1701, 2004 WL 690799, at ¶ 159-166; State v. Vanblarcome, Franklin App. No. 02AP-417, 2003-Ohio-579, 2003 WL 257408, at ¶ 6-22. See, also, State v. Glaros (1960), 170 Ohio St. 471, 11 O.O.2d 215, 166 N.E.2d 379.

{¶ 55} Conway’s contention that the trial court committed structural error in this regard is equally without merit. The “trial-error/structural-error distinction is irrelevant unless it is first established that constitutional error has occurred.” (Emphasis sic.) State v. Esparza (1996), 74 Ohio St.3d 660, 662, 660 N.E.2d 1194. See, also, State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶23 (cautioning against applying a structural-error analysis in a plain-error situation). Any error here was, at most, a statutory violation and not a constitutional error. Thus, we overrule Conway’s sixth proposition of law.

Government Agent

{¶ 56} In propositions of law 12 and 13, Conway contends that the trial court admitted evidence at trial in violation of his Sixth Amendment right to counsel. Conway complains about evidence obtained by Ronald Trent, a government informant, after Conway was indicted in this matter.

{¶ 57} The following facts are relevant to the issues raised in propositions 12 and 13. Conway was arrested on February 23, 2002, in connection with the Dockside shooting and was jailed in the same cellblock as Trent. Trent had been in jail for six months before Conway’s arrest, and Conway and Trent had not previously known each other. On March 5, 2002, Conway was indicted for the Dockside shooting.

{¶ 58} Approximately two weeks after he was arrested, Conway discovered that Trent was a distant cousin. Later, Conway confided to Trent that he was the Dockside shooter. Conway also attempted to enlist Trent to kill a witness to the Dockside shooting and to stage a false confession by coercing someone else to admit on videotape to the Dockside shooting. Conway promised Trent $30,000 for killing a witness and arranged for $5,000 to be deposited in Trent’s jail commissary account as an advance payment.

{¶ 59} On April 4, 2002, Trent wrote a letter to a prosecutor in the Dockside-shooting case, informing her that he had information regarding Conway’s involvement in the shooting. Trent wrote her a second letter, dated April 10, 2002, reiterating that Conway was involved in the Dockside shooting and added that Conway had offered a contract to kill a witness testifying against him.

{¶ 60} On April 25, 2002, sheriffs detectives interviewed Trent. During this interview, Trent provided information about the Dockside shooting, Conway’s plan to murder a witness, and his intent to manufacture evidence by staging a false confession. Trent and law-enforcement officials also discussed a plan to record Trent’s conversations with Conway.

{¶ 61} On May 16, 2002, the state placed Trent on work release from jail, and he began working with the Franklin County Sheriffs Office in its investigation of Conway. Between May 17 and May 24, 2002, a series of conversations was recorded in which Trent and Conway talked about Conway’s plans to kill a witness and stage a false confession.

{¶ 62} Before trial, Conway moved to suppress the evidence collected by Trent. After a hearing, the trial court denied the motion. During the state’s case-in-chief, Trent testified on direct examination about his conversations with Conway that occurred both before and after he began working with sheriffs detectives. In addition, the state was permitted to cross-examine Conway about his recorded conversations with Trent after Trent became a confidential informant.

{¶ 63} Conway claims in proposition of law 13 that evidence gathered by Trent after he became an informant on May 16, 2002, was introduced during the prosecutor’s case-in-chief in violation of the Sixth Amendment.

{¶ 64} The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” In McNeil v. Wisconsin (1991), 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158, the Supreme Court explained that this right to counsel is offense-specific. “It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, ‘ “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” ’ ” Id. at 175, 111 S.Ct. 2204, 115 L.Ed.2d 158, quoting United States v. Gouveia (1984), 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411.

{¶ 65} In a line of cases involving incriminating statements made to police informants, the United States Supreme Court has held that an accused who stands indicted of a crime is denied the basic protections of the Sixth Amendment “when there [is] used against him at his trial evidence of his own incriminating words” that government agents “deliberately elicited” from him in the absence of his counsel. Massiah v. United States (1964), 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Henry (1980), 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115; Maine v. Moulton (1985), 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481. Cf. Kuhlmann v. Wilson (1986), 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (no Sixth Amendment violation unless the defendant shows that police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks). See, also, Patterson v. Illinois (1988), 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (the Sixth Amendment does not bar postindictment questioning in the absence of counsel if the accused waives the right to counsel).

{¶ 66} The deliberate-elicitation standard was first recognized in Massiah. In that case, Massiah, released on bail, made numerous incriminating statements to a coindictee who was acting as a government informant and using a surveillance device. The court held that the protections of the Sixth Amendment apply to “ ‘indirect and surreptitious interrogations’ ” as well as those conducted at the police station. Massiah, 377 U.S. at 206, 84 S.Ct. 1199, 12 L.Ed.2d 246, quoting a dissenter from a court of appeals’ decision, United States v. Massiah (C.A.2, 1962), 307 F.2d 62, 72 (Hays, J., dissenting). Accordingly, the court held that the prosecutor could not constitutionally use Massiah’s incriminating statements, because federal agents had deliberately elicited those statements after Massiah had been indicted and in the absence of his counsel. Id. at 206-207, 84 S.Ct. 1199, 12 L.Ed.2d 246.

{¶ 67} In Henry, an accused made postindictment incriminating statements to a government informant while both were in custody. The court applied Massiah’s deliberate-elicitation standard and held that “[b]y intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry’s Sixth Amendment right to counsel.” Henry, 447 U.S. at 274, 100 S.Ct. 2183, 65 L.Ed.2d 115. The court noted that the informant “was not a passive listener; rather, he had ‘some conversations with Mr. Henry’ * * * and Henry’s incriminating statements were ‘the product of this conversation.’ ” Id. at 271, 100 S.Ct. 2183, 65 L.Ed.2d 115, quoting the informant’s testimony.

{¶ 68} The court also found a Sixth Amendment violation in Moulton, where incriminating statements were obtained by Moulton’s codefendant, who secretly transmitted or recorded conversations with Moulton after both had been released on bail pending trial. The codefendant obtained several incriminating statements by professing to have a poor memory and asking Moulton to remind him of the circumstances of the crimes and by reminiscing about events surrounding various thefts. The court invoked Massiah and Henry and articulated the following principle:

{¶ 69} “[KJnowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” By arranging to record conversations between Moulton and the informant and concealing the fact that the informant was an agent of the state, the court found, the police denied Moulton an opportunity to consult with counsel and thus had denied him the assistance of counsel guaranteed by the Sixth Amendment. Id. at 177, 106 S.Ct. 477, 88 L.Ed.2d 481.

{¶ 70} Massiah, Henry, and Moulton all rest squarely on the prohibition against interference with the right to counsel. The nature of the right recognized in these cases is that the “Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” Moulton, 474 U.S. at 176, 106 S.Ct. 477, 88 L.Ed.2d 481. “[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. at 459, 106 S.Ct. 2616, 91 L.Ed.2d 364. Once an accused is charged, he may not be interrogated, either directly or indirectly, about the subject matter of those charges unless counsel is present.

{¶ 71} In this case, Conway’s Sixth Amendment right to counsel had attached regarding the Dockside-shooting prosecution when he was indicted on March 5, 2002. The state concedes that Trent became an agent for the state on May 16, 2002, and Conway does not argue on appeal that Trent became a government agent before then.

{¶ 72} The state does not deny that law-enforcement officials used Trent as a government informant to deliberately elicit incriminating statements from Conway after he was indicted for the Dockside shooting. Instead, the state contends that because the incriminating statements concerned crimes unrelated to the Dockside shooting with which Conway had not yet been charged, Conway’s Sixth Amendment right to counsel was not violated. The state claims that from May 16, 2002, when Trent began working with sheriffs detectives, Trent elicited incriminating evidence regarding only criminal acts that Conway had not yet been charged with committing.

{¶ 73} Contrary to the state’s assertion, the record demonstrates that Trent did deliberately draw out incriminating evidence from Conway relating to the Dockside shooting after he became a government informant. After becoming a state agent, Trent recorded statements about Conway’s desire to kill a witness to the Dockside shooting and elicited evidence about Conway’s plan to manufacture evidence by staging a false, videotaped confession. This evidence was incriminating on the pending Dockside charges as well as on potential future charges (conspiracy to commit murder and tampering with evidence).

{¶ 74} The state wishes to limit the Sixth Amendment right to counsel to only direct statements by the accused about the indicted offense. Nothing in Massiah or its progeny, however, supports this limitation. Moulton’s government informant surreptitiously transmitted or recorded postindictment conversations during which Moulton recounted his part in the charged offenses and discussed eliminating witnesses and creating a false alibi. The prosecutor was allowed to admit at trial the incriminating statements about Moulton’s participation in the indicted theft offenses as well as the false-alibi plan. Moulton, 474 U.S. at 167, 106 S.Ct. 477, 88 L.Ed.2d 481. The Supreme Court held that “incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.” (Emphasis added.) Id. at 180, 106 S.Ct. 477, 88 L.Ed.2d 481.

{¶ 75} The court of appeals in United States v. Bender (C.A.1, 2000), 221 F.3d 265, rejected an argument similar to the state’s argument here. Bender, while in prison awaiting trial on charges of being a felon in possession of a firearm, spoke with an undercover government agent about his plans to falsify an alibi and kidnap and murder prosecution witnesses. The First Circuit rejected the government’s argument that the statements concerned unindicted crimes unrelated to the pending firearm charges and were not obtained in violation of the Sixth Amendment. The court found that it was obvious that questioning Bender about the false alibi and the plot to Ml witnesses would lead to incriminating statements on the indicted firearm charges. Id. at 269. While Bender’s statements about his plans to kill witnesses and suborn perjury did not provide direct evidence of the pending charges or amount to an explicit confession, “they ‘strongly tended to show that a guilty mind was at work.’ ” Id. at 269, quoting United States v. Lozada-Rivera (C.A.1, 1999), 177 F.3d 98, 107.

{¶76} That same analysis applies here. Conway’s statements to Trent concerning his intention to kill a witness and to manufacture evidence were material evidence of Conway’s guilty mind involving the Dockside charges.

{¶ 77} Although the police have a legitimate interest in investigating new or additional crimes, the state’s “investigative powers are limited by the Sixth Amendment rights of the accused.” Moulton, 474 U.S. at 180, 106 S.Ct. 477, 88 L.Ed.2d 481. The right to counsel under the Sixth Amendment is violated when the state’s agent engages the accused in conversation designed to uncover incriminating information about the charges pending against him. See id. at 177, 106 S.Ct. 477, 88 L.Ed.2d 481. Accordingly, the Sixth Amendment bars the prosecution from using evidence in its case-in-chief that Trent had obtained from Conway after becoming a state agent on May 16, 2002. Because Trent’s direct testimony during the state’s case presented this evidence, we find that Conway’s Sixth Amendment right to counsel was violated.

{¶ 78} Nevertheless, our finding does not require an automatic reversal. A .constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. Whether a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the remaining evidence. Instead, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Id. at 23, 87 S.Ct. 824, 17 L.Ed.2d 705; State v. Madrigal (2000), 87 Ohio St.3d 378, 388, 721 N.E.2d 52. For the following reasons, we conclude that the admission of this evidence during the prosecution’s case-in-chief was harmless beyond a reasonable doubt.

{¶ 79} First, the evidence erroneously admitted was largely cumulative of evidence that Trent had obtained before becoming a state agent. That is, before May 16, 2002, when Trent agreed with the prosecutor’s office to act as a government informant, Conway had already admitted to Trent that he was the Dockside shooter, that he wanted to murder a witness to the Dockside shooting, and that he planned to manufacture evidence for the Dockside case by staging a false, videotaped confession. In addition, by April 9, more than one month before Trent became a state agent, Conway had $5,000 placed in Trent’s jail commissary account as a down payment for killing a government witness.

{¶ 80} Any statements that Conway made to Trent before Trent became a government informant did not violate Conway’s right to counsel and were properly admitted during the state’s case. “[T]he Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” Moulton, 474 U.S. at 176, 106 S.Ct. 477, 88 L.Ed.2d 481, citing Henry, 447 U.S. at 276, 100 S.Ct. 2183, 65 L.Ed.2d 115 (Powell, J., concurring). The record reflects that Conway trusted Trent because they were cousins and that Conway’s statements during their joint incarceration were voluntarily made.

{¶ 81} The only evidence obtained in violation of Conway’s right to counsel that was not uncovered by Trent before he became a state agent involved discussions about Trent’s having carried out the plan to make a videotaped confession and kill the person who made the confession. Nonetheless, Conway had already discussed with Trent his plot to kidnap someone who resembled himself, make a video of this person’s confession to the Dockside shooting, and then kill that person. In fact, before Trent became a state agent, Conway had instructed Trent on specific details to include in the video. For instance, Conway reminded Trent to include a reference in the video- to the live bullet found at the crime scene, which had been ejected when Conway or Myers was making sure that the gun was loaded. Conway also urged Trent to use Randy Price in the video because Price resembled Conway. Thus, although evidence of Conway and Trent’s discussions after the videotape had been made and the confessor had purportedly been killed should not have been admitted during the state’s case, Conway was not prejudiced, because evidence was properly admitted at trial that Conway had plotted to make the false, videotaped confession with Trent before Trent became an agent.

{¶ 82} Second, the question of Conway’s guilt is not close in this case. Strong evidence exists, including eyewitness testimony, that Conway retrieved a loaded gun from a car, pursued Williams through the Dockside parking lot, and fired eight shots at his victims — including shots from close range while Williams and Gervais lay defenseless on the ground. Conway also testified during trial that he had shot Williams and Gervais.

{¶ 83} Because the tainted evidence simply repeated properly admitted evidence and the state’s case against Conway was so strong, we hold that the error here was harmless beyond a reasonable doubt. Therefore, we overrule Conway’s 13th proposition of law.

{¶ 84} In proposition of law 12, Conway contends that his Sixth Amendment right to counsel was violated when the trial court allowed the prosecutor to cross-examine him about the recorded conversations he had with Trent after May 16, 2002.

{¶ 85} During cross-examination, Conway first denied telling Trent anything about the Dockside shooting or talking with him about killing a witness. He testified that staging the false confession was Trent’s idea. The prosecutor then attempted to impeach Conway by referring to recorded conversations between Trent and Conway that occurred after Trent became a state agent on May 16.

{¶ 86} On cross-examination, Conway claimed that his attorneys had not provided him with the Trent tapes before trial, although he did admit to having read through some transcripts of those recorded conversations. The trial court allowed the prosecutor to question Conway outside the presence of the jury in order to give Conway an opportunity to listen to the tapes and to compare them with the transcripts. After that, the prosecutor was allowed to cross-examine Conway about the tape-recorded conversations. Neither the tape recordings nor the transcripts were admitted into evidence.

{¶ 87} Conway argues that the trial court committed prejudicial error when it allowed the prosecutor to impeach him by using statements obtained in violation of his Sixth Amendment right to counsel. In State v. Hill (1996), 75 Ohio St.3d 195, 661 N.E.2d 1068, we considered whether a defendant’s pretrial statements made during a court-ordered psychiatric interview could be used to impeach his trial testimony. Hill claimed on appeal that the statements were inadmissible because his counsel was not present during the psychiatric interview and he was not advised of his Miranda rights. We recognized that “an accused’s voluntary statement could be used to impeach even when the statement was taken in violation of the right to have counsel present.” Id. at 207, 661 N.E.2d 1068, citing Michigan v. Harvey (1990), 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293.

{¶ 88} Harvey held that a statement taken in violation of Michigan v. Jackson (1986), 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631, while inadmissible during the prosecution’s case-in-chief, may.be used to impeach a defendant’s trial testimony. Harvey, 494 U.S. at 349-352, 110 S.Ct. 1176, 108 L.Ed.2d 293. Several federal circuit courts of appeals have, as we did in Hill, construed Harvey as holding that a voluntary statement taken in violation of the Sixth Amendment right to counsel is admissible for impeachment purposes. United States v. Ortega (C.A.9, 2000), 203 F.3d 675, 681; United States v. Yancey (C.A.4, 1998), 155 F.3d 564 (unpublished opinion); United States v. Bender, 221 F.3d at 271; United States v. Fellers (C.A.8, 2005), 397 F.3d 1090, 1097; United States v. Denetclaw (C.A.10, 1996), 96 F.3d 454, 457. But, see, United States v. Spencer (C.A.2, 1992), 955 F.2d 814 (reading Harvey narrowly and holding that statements taken in violation of an accused’s Sixth Amendment right to counsel are inadmissible for all purposes, absent a valid waiver); United States v. Abdi (CA.2, 1998), 142 F.3d 566 (following Spencer).

{¶ 89} The rationale employed by Harvey, and adopted by this court in Hill, is that a defendant should not be allowed to “ ‘ “turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.” ’ ” Harvey, 494 U.S. at 351, 110 S.Ct. 1176, 108 L.Ed.2d 293, quoting Harris v. New York (1971), 401 U.S. 222, 224, 91 S.Ct. 643, 28 L.Ed.2d 1, quoting Walder v. United States (1954), 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503. “If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal ‘obligation to speak truthfully and accurately.’ ” Id., quoting Harris, 401 U.S. at 225, 91 S.Ct. 643, 28 L.Ed.2d 1.

{¶ 90} On this basis, we hold that Conway’s recorded statements to Trent, although obtained in violation of his Sixth Amendment right to counsel, were admissible solely to impeach his untruthful trial testimony. Therefore, we deny proposition of law 12.

Denial of Counsel

{¶ 91} Conway claims in proposition of law 16 that the trial court committed constitutional error when it ordered Conway not to discuss his testimony with counsel during an overnight recess. During the state’s cross-examination of Conway, the trial court decided to recess for the day. After the jury was excused, the trial court instructed Conway:

{¶ 92} “Mr. Conway, you can leave the stand. You’re not to discuss your testimony with anybody till you resume the stand, you’re in the middle of examination.”

{¶ 93} At the time, defense counsel did not object to the trial court’s admonition. The following morning, defense counsel stated, “I object to the separation order of the Court last night on the basis that I was not to see my client last night or to talk about this case.” The trial court explained that it did not order counsel not to visit or consult with their client but, rather, that Conway was not to discuss his testimony with anyone until his examination was completed. Defense counsel made no further objection at that point. Conway raised the issue again in his motion for new trial. After an evidentiary hearing, the trial court again rejected Conway’s claim.

{¶ 94} On appeal, Conway maintains that Geders v. United States (1976), 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592, and Perry v. Leeke (1989), 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624, demonstrate that the trial court committed constitutional error when it ordered Conway not to discuss his testimony with counsel. We find that neither case supports Conway’s claim.

{¶ 95} Geders held that a defendant’s Sixth Amendment right to counsel was infringed when the trial court prevented him from consulting with counsel “about anything” during an overnight recess. Geders, 425 U.S. at 91, 96 S.Ct. 1330, 47 L.Ed.2d 592. Thus, Geders concerned a complete deprivation of access to counsel. This matter is not analogous to Geders because the trial court did not restrict Conway’s access to his lawyers during the overnight recess.

{¶ 96} Perry held that a defendant has no constitutional right to consult with his attorney about his testimony while testifying. Perry, 488 U.S. at 284-285, 109 S.Ct. 594, 102 L.Ed.2d 624. The court found that while a defendant has an absolute right to consultation before he begins to testify, a trial judge can decide that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the defendant an opportunity to consult with his or her attorney. Id. at 281-282, 109 S.Ct. 594, 102 L.Ed.2d 624.

{¶ 97} Admittedly, Perry involved a decidedly brief recess — 15 minutes — as opposed to the overnight recess at issue here. Nevertheless, Geders and Perry made clear that “[i]t is the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess.” Perry, 488 U.S. at 284, 109 S.Ct. 594, 102 L.E.2d 624, citing Geders, 425 U.S. at 88, 96 S.Ct. 1330, 47 L.Ed.2d 592. Although Conway was prohibited from discussing his uncompleted testimony with counsel, the trial court did not order him not to meet or consult with counsel about other matters during the overnight recess. See Perry, U.S. at 284, 109 S.Ct. 594, 102 L.Ed.2d 624, fn. 8, citing with approval People v. Stroner (1982), 104 Ill.App.3d 1, 5-6, 59 Ill-Dec. 764, 432 N.E.2d 348. Therefore, we deny Conway’s 16th proposition of law.

Right to Public Trial

{¶ 98} In proposition of law 17, Conway contends that the government intruded on his right to a public trial. Conway’s claim is devoid of merit.

{¶ 99} The Sixth Amendment provides that a defendant “shall enjoy the right to a speedy and public trial.” We have “long recognized that ‘the right to a public trial * * * is a fundamental guarantee of both the United States and Ohio Constitutions.’ ” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 62, quoting State v. Lane (1979), 60 Ohio St.2d 112, 14 O.O.3d 342, 397 N.E.2d 1338, paragraph two of the syllabus. In Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31, the Supreme Court addressed the scope of a criminal defendant’s right to a public trial. The court noted that the central aim of a criminal proceeding is to try the accused fairly and recognized that the public-trial guarantee allows the public to see for itself that the accused is fairly-dealt with and not unjustly condemned. In addition, a public trial ensures that the judge and prosecutor carry out their duties responsibly, encourages witnesses to come forward, and discourages perjury. Id. at 46, 104 S.Ct. 2210, 81 L.Ed.2d 31.

{¶ 100} Waller dealt with a trial court’s barring from a suppression hearing all persons other than the parties, their lawyers, witnesses, and court personnel. Waller, 467 U.S. at 42, 104 S.Ct. 2210, 81 L.Ed.2d 31. Conway concedes that the trial judge did not order any part of his trial closed to the public. Nevertheless, Conway maintains that the prosecutor interfered with his right to a public trial. While Conway’s argument is somewhat difficult to decipher, he apparently contends that prosecutors prevented certain people from attending his trial.

{¶ 101} Yet there is no credible evidence to support Conway’s claim. The only restrictions imposed on spectators entering the courtroom related to enforcing the court’s separation-of-witnesses order, an order that defense counsel requested. See Evid.R. 615. Sheriffs deputies were placed at the courtroom entrance for security purposes, and spectators were asked to show identification before entering the courtroom. Defense counsel and the prosecuting attorneys conferred with deputies, as well as with each other, to determine whether certain spectators were potential witnesses and should be excluded from the courtroom.

{¶ 102} Conway’s claim that prosecutors intimidated spectators who supported Conway is equally without merit. In his brief, Conway refers to Gretchen Róese and Susan Doering as subjects of the alleged improper government conduct. An evidentiary hearing on this issue was held in conjunction with Conway’s motion for a new trial, at which both women testified that they had not been prevented from attending Conway’s trial. Róese and Doering testified that they had been required to present identification before entering the courtroom, but conceded that this request was made after they had refused to reveal their names to deputies. Both were informed that the prosecutors were merely trying to identify potential witnesses. Each was questioned by prosecuting attorneys, but only because each agreed to talk to them. Therefore, there is no evidence that either woman was singled out or intimidated, and Conway has not established that his right to a public trial was violated.

{¶ 103} In any event, Conway did not complain until after the guilt phase of his trial that his family and friends were intimidated or barred from the courtroom. Thus, this issue has been waived. See Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph one of the syllabus.

{¶ 104} Thus, we reject his 17th proposition of law.

Testimony of Former Assistant Prosecutor

{¶ 105} Conway argues in proposition of law 18 that prejudicial error occurred when a former assistant prosecuting attorney, previously active in his case, was allowed to testify. During the state’s case, the prosecutor called a former assistant prosecutor, David DeVillers, to rebut an implication by defense counsel that the government’s informant, Trent, had gained information about the Dockside shooting from reading Conway’s discovery documents during their joint incarceration. Conway did not object to DeVillers’s testimony at trial and has waived all but plain error. Plain error will not be found unless Conway establishes that the outcome of his trial clearly would have been otherwise except for the trial court’s alleged improper action of allowing the testimony. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043.

{¶ 106} Prosecuting attorneys are not disqualified as witnesses solely by virtue of their employment in cases in which they play no other role. United States v. Armedo-Sarmiento (C.A.2, 1976), 545 F.2d 785, 793. See, also, State v. Daniels (1993), 92 Ohio App.3d 473, 488, 636 N.E.2d 336 (testimony of juvenile-division assistant prosecutor allowed because he was not engaged as active counsel for prosecution). In State v. Coleman (1989), 45 Ohio St.3d 298, 544 N.E.2d 622, paragraph two of the syllabus, we held, “A prosecuting attorney should avoid being a witness in a criminal prosecution, but where it is a complex proceeding and substitution of counsel is impractical, and where the attorney so testifying is not engaged in the active trial of the cause and it is the only testimony available, such testimony is admissible and not in violation of DR 5-102.” See, also, United States v. Johnston (C.A.7, 1982), 690 F.2d 638, 644 (prosecutor’s testimony may be permitted in extraordinary circumstances and for compelling reasons, usually where the evidence is otherwise unavailable).

{¶ 107} Conway relies primarily on Coleman and Johnston in support of this proposition. But this is not a case in which DeVillers was engaged in the dual role of advocate-witness. Cf. United States v. Johnston, 690 F.2d at 642 (the advocate-witness rule “articulates the professional impropriety of assuming the dual role of advocate and witness in a single proceeding”). DeVillers participated in the criminal investigation of Conway and presented the Dockside shooting to the grand jury, but did not act as counsel for the state during Conway’s trial.

{¶ 108} Although Conway contends that the information in DeVillers’s testimony was available through a stipulated exhibit, DeVillers’s testimony was probative of whether Trent could have gained any knowledge about Conway’s involvement in the Dockside shooting from discovery materials in Conway’s cell. See Evid.R. 401 and 402.

{¶ 109} Thus, there was no error, plain or otherwise.. DeVillers had no other role at Conway’s trial beyond his testimony, and his testimony was relevant. Therefore, we overrule Conway’s 18th proposition of law.

Denial of Expert Witness and Limitation on Cross-Examination

{¶ 110} In proposition of law 21, Conway argues that the trial court erred when it did not allow testimony and evidence from James Cope, whom the defense wished to call as an expert witness. He also contends under this proposition that defense counsel were severely limited in their ability to cross-examine Trent, the state’s informant.

{¶ 111} Denial of expert witness. After the state rested, the defense informed the court that it intended to call Cope, a mechanical engineer, as an expert witness. The defense had hired Cope to make a computer-animated reenactment of the crime. Cope’s video purported to show how Williams had pulled Gervais into the line of fire as Conway was shooting at Williams.

{¶ 112} The trial court denied defense coun