State v. Bethel (110 Ohio St. 3d 416, 2006)

Pfeifer, J.

{¶ 1} On June 25, 1996, James Reynolds and his girlfriend, Shannon Hawks, were shot to death in an isolated field in Columbus. Appellant, Robert W. Bethel, was convicted of the aggravated murders of Reynolds and Hawks and was sentenced to death.

{¶ 2} Bethel was a member of the Crips street gang, as was Bethel’s friend Jeremy Chavis. Tyrone Green and Donald Langbein were also members of the Crips gang. Jeremy’s brother, Cheveldes Chavis, although a member of a different gang, “hung with” Jeremy, Langbein, Green, and Bethel. In the latter part of 1996, Bethel, Langbein, and the Chavis brothers lived together in a trailer on West Run Street in Columbus.

{¶ 3} Langbein is a cousin of the Chavis brothers; they have a grandfather in common. Their grandfather kept a garden in a field located behind 562 Stambaugh Road in Columbus (“the Stambaugh field”). Langbein and Jeremy Chavis sometimes went to that field to shoot guns.

{¶ 4} In 1995, Tyrone Green shot Rodney Cain to death during a burglary. James Reynolds and Donald Pryor were also involved in the burglary. Reynolds later told Pryor that he had seen Green shoot Cain. Pryor repeated Reynolds’s story to the police.

{¶ 5} Green was subsequently indicted for aggravated murder with death specifications. During the discovery process in Green’s case, the state gave Green’s attorney supplemental discovery materials that included a copy of a search warrant with its supporting affidavit. The affidavit stated that Reynolds had told Pryor that Green had shot the victim. The state sent the supplemental discovery materials to Green’s attorney on May 29, 1996, about four weeks before Reynolds and Hawks were murdered.

{¶ 6} Langbein testified that he and Bethel had been concerned about the witnesses against Green and that they had discussed “tak[ing] steps to get rid of them.” On June 13, 1996, about two weeks before Reynolds and Hawks were murdered, Bethel and Cheveldes Chavis each bought a Maverick Model 88 12-gauge shotgun from Hamilton’s Gun Shop in Obetz.

{¶ 7} According to Langbein, the day before the bodies of Reynolds and Hawks were discovered, a group of people “from the neighborhood,” including Reynolds, gathered on the corner of 4th and Morrill to hang out. Langbein, Bethel, and the Chavises arrived around 2:00 p.m. in Bethel’s car.

{¶ 8} When Langbein was ready to leave, he offered Reynolds a ride home, because Reynolds lived near him. But Bethel and Jeremy Chavis said they would drive Reynolds home, even though Reynolds did not live near Jeremy. Langbein saw Reynolds and Hawks with Bethel and Jeremy in Bethel’s car.

{¶ 9} Traci Queen, f.k.a. Traci Jordan, was a friend of Shannon Hawks. Queen recalled Hawks’s and Reynolds’s visiting her sometime between 3:00 and 5:00 p.m. the day before their deaths were reported on a news broadcast. When they entered Queen’s home, Reynolds looked at his pager and went into the kitchen to use the phone. Hawks told Queen that she and Reynolds were “going to go out and shoot guns.” She invited Queen to come along, but Queen declined.

{¶ 10} When Reynolds emerged from the kitchen, he and Hawks left the house and got into a car waiting in front of the house next door. Queen saw two other persons, who appeared to be male, in the front seat of that car. She never saw Hawks or Reynolds alive again.

{¶ 11} Ron Bass, who lived near the Stambaugh field, told police that sometime between 10:00 and 11:00 p.m., June 25, 1996, he heard five or six gunshots while lying in bed. Then he heard one louder gunshot, and after that another series of shots.

{¶ 12} On June 26,1996, the bodies of Reynolds and Hawks were found lying in the Stambaugh field. They had been shot to death.

{¶ 13} Reynolds had been shot ten times, four times in the head. Reynolds also had one neck wound. One of the gunshots fired into Reynolds’s head, from a distance of six inches to three feet, would have killed him at once. Five bullets were recovered from Reynolds’s body, all of which could have been fired from a 9 mm firearm. Reynolds also had one wound caused by a shotgun slug fired into his back.

{¶ 14} Hawks was shot four times, twice in the head. One of the head wounds was a back-to-front wound through her brain. This wound would have incapacitated Hawks almost immediately. The other head wound entered Hawks’s right cheek and exited through her left ear. Stippling indicated that this shot was fired from a distance of two to four feet.

{¶ 15} At the crime scene, police recovered twenty 9 mm shell casings and ten 12-gauge shotgun shell casings. The murder weapons were never found.

{¶ 16} Reynolds was the sole eyewitness known to the prosecuting attorney in Tyrone Green’s aggravated-murder case. After Reynolds was murdered, Green was offered a plea bargain to a reduced charge of manslaughter.

{¶ 17} A couple of weeks after the murders, Bethel told Langbein that Bethel, Jeremy Chavis, “Doughboy” (Reynolds), and Hawks had been “partying” in the field where Langbein’s grandfather kept a garden. Bethel told Langbein that he drew a 9 mm pistol and began firing at Reynolds and Hawks. After emptying his clip, Bethel reloaded and continued to shoot Reynolds and Hawks. Bethel told Langbein that Jeremy Chavis shot Reynolds in the back with a shotgun. Langbein stated that in later conversations, Bethel expressed concern about being caught.

{¶ 18} Some time before January 1997, Bethel told his girlfriend Theresa Campbell, f.k.a. Theresa Cobb, about the murders. He told her that on the night of the murders, he, Jeremy Chavis, Reynolds, and Hawks went fi> “practice shooting guns.” He said he “had a feeling to shoot” and shot Reynolds'and Hawks “because he felt like it.” Bethel told her that he had laughed and then called Jeremy over to “see what he had done.” According to Campbell, when Jeremy Chavis saw what Bethel had done, Chavis began to cry and went back to the car. Bethel then reloaded his gun and continued to shoot. Bethel told Campbell that he “couldn’t stop shooting,” and that when Chavis wanted to leave, Bethel “just stood there looking.”

{¶ 19} In January 1997, police executed a search warrant at the trailer on West Run Street. There they found a Maverick Model 88 12-gauge shotgun belonging to Cheveldes Chavis. Bethel’s identical shotgun was never found. This type of shotgun could have fired the type of shells found at the crime scene.

{¶ 20} Also found at the trailer was a gun box with a “Ruger” logo on the lid. Although the box contained no gun, it did contain an instruction manual for a 9 mm Ruger P95 semiautomatic pistol. According to Langbein, after the trailer was searched, Bethel became nervous about being caught and “started acting real weird.”

{¶ 21} In 2000, Langbein was charged with an unrelated federal firearms violation. He told police and Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agents what he knew about the Reynolds-Hawks murders and agreed to wear a concealed tape recorder during conversations with Bethel.

{¶ 22} On October 19, 2000, Langbein and Bethel had a conversation at the Subway restaurant where Bethel worked. Langbein wore a recorder, and the Subway was under ATF surveillance. During this conversation, Bethel talked about the investigation. He told Langbein, “I wanted to talk to Jeremy * * * ‘cause I knew the [police] were going to go down and * * * try and tell him some shit.” Bethel believed that detectives had “been havin’ phones tapped,” and he was hesitant to talk anywhere “they got anything.”

{¶ 23} On November 1, 2000, police executed a search warrant at 656 East Jenkins Street, Columbus. Although the record does not show who lived at this address, some of the property seized pursuant to the warrant was later returned to Cheveldes Chavis. In a wastebasket at that site, police found papers with a cover sheet captioned “Supplemental Discovery” from the case of State v. Tyrone Green. Jeremy Chavis’s fingerprints were found on that paper. In the same wastebasket, police found a copy of a search warrant given to Green during discovery in his case, along with its attached affidavit — the affidavit that named Reynolds as the source of Pryor’s information.

{¶ 24} Bethel was arrested on November 6, 2000. He was indicted on two counts of aggravated murder under R.C. 2903.01(A) (prior calculation and design). Each count had two death specifications. The specifications for Count One, the murder of Shannon Hawks, alleged that the offense was committed to escape detection, apprehension, trial, or punishment for another offense committed by the offender, in violation of R.C. 2929.04(A)(3), and that it was part of a course of conduct involving the purposeful killing of two or more persons, in violation of R.C. 2929.04(A)(5). The specifications for Count Two, the murder of James Reynolds, were that Reynolds was killed to prevent his testimony in another criminal proceeding, in violation of R.C. 2929.04(A)(8), and that his murder was part of a course of conduct, in violation of R.C. 2929.04(A)(5).

{¶ 25} The trial court appointed Ronald B. Janes and W. Joseph Edwards as Bethel’s counsel. After receiving discovery from the state, Janes and Edwards concluded that a death sentence was a strong possibility. Accordingly, they negotiated with the prosecutor’s office to reach a plea bargain.

{¶ 26} At a meeting on August 29, 2000, Janes and Edwards discussed a proposed plea bargain with Bethel. Bethel’s mother was also present with Sanford Cohan, an attorney she had hired. Janes and Edwards showed Bethel videotaped witness statements that they had received from the prosecution in discovery. After seeing these, Bethel softened his position and ultimately agreed to a plea bargain and to testify against Jeremy Chavis.

{¶ 27} As part of the bargain, Bethel agreed to make an “off-the-record” proffer of his testimony against Jeremy Chavis. The prosecutor prepared a proffer letter to clarify the ground rules for the proffer. The letter specifically provided that “no statements made or other information provided by your client during the ‘off-the-record’ proffer or discussion will be used against your client in any criminal case.” The state reserved the right to make derivative use of Bethel’s statement and to use it on cross-examination if his testimony was inconsistent with his proffer.

{¶ 28} On August 30, 2000, Bethel was taken to the Franklin County Sheriffs Office. There, in the presence of his attorney, Bethel signed the proffer letter. Bethel then made a statement that was tape-recorded.

{¶ 29} In his proffer, Bethel stated that killing Reynolds had been Jeremy Chavis’s idea. Before the murders, Bethel said, he and Chavis discussed what they were going to do. After this conversation, they picked up Reynolds and Hawks and drove to the field belonging to Chavis’s grandfather, where Bethel and others sometimes went to fire guns or to just hang out.

{¶ 30} When they got to the field, the four got out of the car and walked through some trees to a clearing. Bethel had a 9 mm handgun; Chavis had the 12-gauge shotgun that Bethel had purchased. A few shots were fired into the air. Bethel and Chavis then turned their guns on Reynolds and Hawks.

{¶ 31} Reynolds and Hawks were standing together; Reynolds had his arm around Hawks. Bethel claimed that he and Chavis simultaneously fired then-guns at Reynolds and Hawks from a distance of 30 to 40 feet. The two victims fell to the ground. Bethel emptied the clip of his handgun.

{¶ 32} According to Bethel, he thought that Reynolds and Hawks were probably dead, so he said, “Let’s go.” But Chavis wanted to “make sure.” Chavis gave Bethel a fresh clip containing “maybe” six rounds. Bethel then walked over to the victims and emptied the second clip into them at “close range.”

{¶ 33} On August 30, 2001, after making the proffer, Bethel entered into a plea agreement with the state. The agreement was embodied in a three-page document signed by Bethel, his attorneys, and the prosecutors and filed with the trial court. Bethel discussed the terms with his attorneys for 30 to 45 minutes before signing.

{¶ 34} Bethel agreed to plead to two counts of aggravated murder with firearm specifications. He further agreed to cooperate with the investigation and to testify truthfully against Jeremy Chavis and anyone else involved in killing Reynolds and Hawks. In return, the state agreed to dismiss the death specifications.

{¶ 35} The agreement contained a specific provision dealing with Bethel’s proffer:

{¶ 36} “1. Defendant and the State agree that the proffer taken of the defendant on August 30, 2001 will be admissible in a criminal trial against the defendant in the event that the defendant does not abide by the terms and conditions of this agreement set forth below.”

{¶ 37} The agreement also included the following provision:

{¶ 38} “6. * * * Should it be judged by the Franklin County Prosecutor’s Office at any time that the defendant has failed to cooperate fully; refused to testify or testifies falsely in any proceeding(s); has intentionally given false, misleading or incomplete information or testimony; or has otherwise violated any provision of this agreement, then the Franklin County Prosecutor’s Office may declare this Agreement null and void. The Franklin County Prosecutor’s Office may then automatically reinstate the original charges against the defendant, as well as file any additional charges. * * * In the event this Agreement becomes null and void, then the parties will be returned to the position they were in before this Agreement.”

{¶ 39} After the parties signed the agreement, the trial court held a closed hearing. The terms of the agreement were placed on record, and Bethel confirmed that he understood them. The trial court accepted the agreement and placed it in the record under seal. After a recess, and in open court, the trial court accepted Bethel’s plea of guilty to two counts of aggravated murder with gun specifications.

{¶ 40} On November 13, 2001, Bethel refused to testify against Jeremy Chavis. On December 18, 2001, the state filed a motion to have the plea agreement declared void. The trial court granted the state’s motion, thereby reinstating the charges. Janes and Edwards withdrew from the case on December 3, 2001, and Bethel was assigned other counsel.

{¶ 41} Bethel filed a motion to suppress his proffer. His former counsel, Janes and Edwards, testified at the motion hearing. The trial judge denied the motion and allowed the state to introduce Bethel’s proffer into evidence.

{¶ 42} At trial, Bethel expressly denied his guilt. In his testimony, he repudiated the proffer, claiming that he had lied in order to obtain the benefit of the plea bargain. He admitted that he had never intended to fulfill his end of the bargain by testifying against Chavis, but claimed that he had merely wanted to delay his trial because he felt that Janes and Edwards were unprepared. He claimed to have believed the proffer could not be used against him at trial even if he violated the agreement.

{¶ 43} Bethel admitted that Reynolds and Hawks had been in his car after the gathering at 4th and Morrill, but he claimed to have dropped them off on the west side of Columbus around 9:00 p.m. Bethel and his mother, Deborah Bibler, testified that Bethel and Chavis had been at Bibler’s house on the south side of Columbus between 10:00 and 11:00 p.m., June 25,1996, at the time that Ron Bass heard the gunshots.

{¶ 44} The jury found Bethel guilty of all charges and specifications. After a penalty hearing, the jury recommended death sentences for both killings, and the trial court sentenced Bethel to death. The cause is now before us upon an appeal as of right.

{¶ 45} In this appeal, Bethel sets forth 20 propositions of law, each devoid of merit. We overrule his propositions of law and affirm his convictions and his sentences of death.

I. Bethel’s Proffer

A. The Plea Agreement

{¶ 46} Paragraph One of the plea agreement specifically provided that “the proffer taken of the defendant on August 30, 2001 will be admissible in a criminal trial against the defendant in the event that the defendant does not abide by the terms and conditions of this agreement * * *.” In his first proposition of law, Bethel contends that, despite the seemingly clear language of the first paragraph, once the plea agreement was declared void, the state could not use his proffer against him at trial. Thus, he contends, its introduction into evidence violated the plea agreement.

{¶ 47} According to Bethel, Paragraph One is meaningless. He argues that Paragraph Six of the agreement permitted the charges to be reinstated only if the prosecutor declared the entire agreement void. And if the entire agreement was void, Bethel argues, Paragraph One was also void and could not be enforced.

{¶ 48} Bethel argues that his interpretation is supported by the following sentence in Paragraph Six: “In the event this Agreement becomes null and void, then the parties mU be returned to the position they were in before this Agreement.” According to Bethel, returning the parties to their pre-agreement position means that the proffer letter, which preceded the agreement, controlled the state’s use of the proffer. And under the terms of the proffer letter, the state could have introduced Bethel’s proffer only in order to impeach his testimony, if necessary.

{¶ 49} If Bethel’s construction of the agreement is correct, it is clear that under no circumstances could Paragraph One ever be implemented. Bethel agrees that this is so. Indeed, his brief expressly contends that the null-and-void language of Paragraph Six renders Paragraph One meaningless.

{¶ 50} Principles of contract law are generally applicable to the interpretation and enforcement of plea agreements. See, generally, United States v. Wells (C.A.6, 2000), 211 F.3d 988, 995. Bethel’s proposed interpretation of the agreement is at odds with a basic principle of contract law: “In the construction of a contract courts should give effect, if possible, to every provision therein contained, and if one construction of a doubtful condition written in a contract would make that condition meaningless, and it is possible to give it another construction that would give it meaning and purpose, then the latter construction must obtain.” (Emphasis added.) Farmers’ Natl. Bank v. Delaware Ins. Co. (1911), 83 Ohio St. 309, 94 N.E. 834, paragraph six of the syllabus.

{¶ 51} This well-settled principle applies to plea agreements. United States v. Rourke (C.A.7, 1996), 74 F.3d 802, 807; see, also, United States v. Brye (C.A.10, 1998), 146 F.3d 1207, 1211 (rejecting interpretation that would render part of plea agreement superfluous). Thus, an interpretation that would render a provision meaningless — as Bethel’s proposed interpretation would — “is neither acceptable nor desirable under the normal rules of contract construction.” Hybud Equip. Corp. v. Sphere Drake Ins. Co. (1992), 64 Ohio St.3d 657, 666, 597 N.E.2d 1096.

{¶ 52} Pointing out that the state drafted the plea agreement in this case, Bethel cites the well-known principle that ambiguities in a plea agreement are to be construed against the state. See United States v. Johnson (C.A.6, 1992), 979 F.2d 396, 399.

{¶ 53} However, the cited principle applies only to ambiguous agreements or portions of agreements. It has no application here, because there is no ambiguity in the agreement before us. An agreement is ambiguous if it is “subject to more than one reasonable interpretation.” Hillsboro v. Fraternal Order of Police, Ohio Labor Council, Inc. (1990), 52 Ohio St.3d 174, 177, 556 N.E.2d 1186. Accord United States v. Gebbie (C.A.3, 2002), 294 F.3d 540, 551 (plea agreement). Given the clear language of Paragraph One, and the need to ensure that the paragraph is not rendered meaningless, the agreement before us is subject to only one reasonable interpretation. The breach by Bethel voided the plea agreement and returned the parties to their previous position as stated in Paragraph Six, except that Bethel’s proffer could then be used against him, as plainly provided by Paragraph One. This construction addresses the entire agreement and avoids the incorrect result of rendering Paragraph One meaningless.

{¶ 54} Bethel’s plea agreement clearly provided that the state could use Bethel’s proffer at trial if Bethel breached the agreement. Hence, the state did not violate the agreement by introducing the proffer. Bethel’s first proposition of law is therefore overruled.

B. Evid.R. 410(A)

{¶ 55} Evid.R. 410(A)(5) provides that “any statement made in the course of plea discussions in which counsel for the prosecuting authority or for the defendant was a participant and * * * that result in a plea of guilty later withdrawn” is not admissible “against the defendant who made the plea or who was a participant personally or through counsel in the plea discussions.” In his second proposition of law, Bethel claims that the admission of his plea agreement and proffer violated Evid.R. 410(A)(5). However, since Bethel specifically agreed that his proffer could be admitted into evidence against him in the event that he breached the plea agreement, he has waived any claim under Evid.R. 410(A)(5).

{¶ 56} Evid.R. 410(A)(1) provides that a withdrawn plea of guilty is inadmissible. Evid.R. 410(A)(4) provides that any statement made during proceedings under Crim.R. 11 regarding a plea is inadmissible. Bethel claims that the state violated these rules at trial when it elicited testimony that he had previously entered a plea of guilty in this case. Columbus Police Detective Edward Kallay gave the following testimony on redirect examination:

{¶ 57} “Q. * * * After the proffer, was there a plea agreement in this case?

{¶ 58} “A. Yes, sir.

{¶ 59} “Q. Signed by the defendant?

{¶ 60} “A. Yes, sir.

{¶ 61} “* * *

{¶ 62} “Q. Plea in this case in open court?

{¶ 63} “A. Yes, sir, there was a plea.”

{¶ 64} Bethel did not object to this evidence at trial. Further, defendant’s attorneys first inserted the issue of the guilty plea into the case, in opening statement. This issue, raised in defendant’s second proposition of law, is therefore waived.

C. Knowing and Voluntary Waiver

{¶ 65} In his 19th proposition of law, Bethel contends that when he entered into the plea agreement, he did not understand that it allowed the state to use his proffer against him if he breached the agreement. Thus, he claims that he did not knowingly, voluntarily, and intelligently waive his Fifth Amendment right against self-incrimination, and his proffer should have been suppressed.

{¶ 66} At the suppression hearing, both Edwards and Janes testified that they explained the agreement to Bethel and that he understood it, including the first paragraph. Both attorneys understood the agreement to mean that if Bethel violated it, his proffer could be used against him at trial. Edwards specifically explained to Bethel that the proffer was no longer off the record once he signed the plea agreement. “I just specifically said to him, Bobby, if you sign this agreement, then if you back out, meaning you don’t testify against Jeremy, or if you testify untruthfully, * * * not only will the deal be revoked but then they’re going to have this statement to be used against you.”

{¶ 67} Bethel denied that he understood that the agreement would allow the use of his proffered statements. He testified that Janes and Edwards told him that Paragraph One was meaningless and that it left him free to renege with no adverse consequences other than reinstatement of the original charges.

{¶ 68} The trial court found that Janes and Edwards were credible and that Bethel was not. The court specifically found that “Bethel understood and agreed to the plea agreement,” that Janes and Edwards did not advise Bethel to lie about his willingness to testify, and that “Bethel understood the potential uses of the proffer, and [understood that] pursuant to the plea agreement the prosecution [was permitted to] use the proffer against Bethel in a trial on the original charges.”

{¶ 69} “Voluntariness is a legal question for a reviewing court to determine independently. * * * However, this court must defer to the trial court’s factual findings, if those are supported by the record.” (Emphasis sic.) State v. Keene (1998), 81 Ohio St.3d 646, 656, 693 N.E.2d 246. The testimony of Janes and Edwards amply supports the trial court’s findings of fact. On the basis of those findings, we conclude that Bethel knowingly, voluntarily, and intelligently entered into the plea agreement. Bethel was represented by counsel, who advised him of the consequences of breaching the agreement, and he understood those consequences.

D. Lack of Miranda Warnings

{¶ 70} Bethel also claims that his proffer was inadmissible because it was not preceded by Miranda warnings. Bethel’s claim under Miranda is waived, however, because he did not bring it to the attention of the trial court.

{¶ 71} In order to overcome this waiver, Bethel must show plain error under Crim.R. 52(B). An error is plain error only if it is obvious, State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, and, “but for the error, the outcome of the trial clearly would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. The trial court’s failure to suppress the proffer on Miranda grounds was not plain error, as the error, if any, was neither obvious nor outcome-determinative.

{¶ 72} The outcome of Bethel’s trial would not clearly have been different had the proffer been excluded, since Bethel had admitted his guilt to two of the state’s witnesses, Langbein and Cobb.

{¶ 73} Nor do we find that the trial court’s admission of the proffer was an obvious error. Bethel’s attorneys were present during the proffer, and there is substantial authority for the proposition that Miranda warnings are not necessary when counsel is present. In Miranda itself, the United States Supreme Court observed that “[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination].” Miranda v. Arizona (1966), 384 U.S. 436, 466, 86 S.Ct. 1602, 16 L.Ed.2d 694. Indeed, it is generally accepted that the presence of counsel during interrogation “obviates the need for the warnings.” 2 LaFave, Israel & King, Criminal Procedure (1999) 573, Section 6.8(e). See United States v. Guariglia (S.D.N.Y. 1991), 757 F.Supp. 259, 264; Virgin Islands v. Ruiz (D.V.I.1973), 354 F.Supp. 245, 247-248; People v. Mounts (Colo.1990), 784 P.2d 792, 795-796; Collins v. State (Del.1980), 420 A.2d 170, 176; Baxter v. State (1985), 254 Ga. 538, 543, 331 S.E.2d 561. Contra State v. DeWeese (2003), 213 W.Va. 339, 348-349, 582 S.E.2d 786; see Sweeney v. Carter (C.A.7, 2004), 361 F.3d 327, 331.

{¶ 74} Therefore, Bethel’s 19th proposition of law is overruled.

E. Imposing Death after Bethel Breached the Agreement

{¶ 75} In his ninth proposition of law, Bethel contends that imposition of the death sentence was arbitrary, given the trial court’s willingness to accept his plea of guilty to a noncapital charge as part of the plea bargain. Bethel argues that by accepting his guilty plea to aggravated murder without death specifications, the trial court effectively determined that a sentence of life imprisonment was appropriate. Citing Adamson v. Ricketts (C.A.9, 1988), 865 F.2d 1011, 1022, Bethel contends that he was sentenced to death simply because he violated his plea agreement, not because he deserved a death sentence.

{¶ 76} We find Adamson unpersuasive. The trial court’s acceptance of the plea agreement in this case did not necessarily imply that it considered a life sentence “appropriate.” We concur in the view expressed by a different panel of the Ninth Circuit Court of Appeals in another capital case: “That the sentence imposed after trial is more severe than one the judge would have been willing to impose as part of a plea bargain does not * * * impeach the legitimacy of the sentence. * * * [T]he judge could well have approved a settlement calling for a sentence lighter than he himself would have chosen to impose.” McKenzie v. Risley (C.A.9, 1988), 842 F.2d 1525, 1537. The reasoning of McKenzie is consistent with our own reasoning in State v. Webb (1994), 70 Ohio St.3d 325, 336, 638 N.E.2d 1023, that a prosecutor’s offer of a plea bargain to a capital defendant did not constitute a concession by the prosecutor that a death sentence was inappropriate. Bethel’s ninth proposition of law is therefore overruled.

F. Prosecutorial Vindictiveness

{¶ 77} In his tenth proposition of law, Bethel claims to be a victim of “prosecutorial vindictiveness.” See, generally, Blackledge v. Perry (1974), 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (prosecutor may not retaliate against defendant for exercising right to appeal). Bethel argues that in refusing to testify against Chavis, he was exercising his constitutional right to remain silent. He contends that reinstatement of the original charges in response to his refusal to testify amounted to retaliation for his exercise of that right.

{¶ 78} Bethel’s claim lacks merit. “[WJhen a plea agreement is vacated, no presumption of vindictiveness arises when the prosecutor simply reinstates the indictment that was in effect before the plea agreement was entered.” Taylor v. Kincheloe (C.A.9, 1990), 920 F.2d 599, 606. Accord United States v. Anderson (C.A.7, 1975), 514 F.2d 583, 588. When a defendant goes back on his promise, “it is hardly surprising, and scarcely suggestive of vindictiveness, that the district attorney in turn withdraws] his consent to the reduced charge.” United States ex rel. Williams v. McMann (C.A.2, 1970), 436 F.2d 103, 106.

{¶ 79} In essence, Bethel claims a constitutional right to renege on his plea agreement, retain the benefit of the bargain that he broke, and avoid the agreed sanction for his breach. We decline to create such a right. To do so “would encourage gamesmanship of a most offensive nature. Defendants would be rewarded for prevailing upon the prosecutor to accept a reduced charge and to recommend a lighter punishment in return for a guilty plea, when the defendant intended at the time he entered that plea to attack it at some future date. * * * This is nothing more than a ‘heads-I-win-tails-you-lose’ gamble.” Id. at 106-107. Bethel’s tenth proposition is overruled.

II. Nonpublic Proceeding to Determine Defendant’s Understanding of Plea Agreement

{¶ 80} In his third proposition of law, Bethel contends that he should receive a new trial because a hearing in which the plea agreement was discussed was closed to the public.

A. Constitutional Issues

{¶ 81} The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and by Section 10, Article I of the Ohio Constitution. Although Bethel did not object to the closing of the hearing, the right to a public trial under Section 10, Article I of the Ohio Constitution cannot be waived by the defendant’s silence. State v. Hensley (1906), 75 Ohio St. 255, 266, 79 N.E. 462. Nor does anything in the record show that the defense consented to the closing of the hearing. Cf. State v. Bayless (1976), 48 Ohio St.2d 73, 110, 2 O.O.3d 249, 357 N.E.2d 1035 (waiver by consent of defense counsel); State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 64 (error invited by defense counsel).

{¶ 82} The violation of the right to a public trial is a structural error. It is not subjected to harmless-error analysis. Waller v. Georgia (1984), 467 U.S. 39, 49-50, 104 S.Ct. 2210, 81 L.Ed.2d 31. In Waller, the court held that in order to justify closure of a hearing in a criminal case, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” 467 U.S. at 48, 104 S.Ct. 2210, 81 L.Ed.2d 31.

{¶ 83} The record in this case does not show that any of these requirements were addressed. Thus, it does not appear that the closing of the hearing was justified. Bethel argues that because the closing of the hearing was unjustified, he is entitled to a new trial. We disagree.

{¶ 84} In Waller, a suppression hearing was improperly closed. The remedy, however, was not a new trial, but a new suppression hearing: “[T]he remedy should be appropriate to the violation. * * * A new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial, or in some other material change in the positions of the parties.” 467 U.S. at 49-50, 104 S.Ct. 2210, 81 L.Ed.2d 31.

{¶ 85} Therefore, the remedy for the improper closing of the hearing in this case would be a new, public hearing. A new trial would follow only if the new hearing resulted in some “material change in the positions of the parties.”

{¶ 86} However, under the present circumstances, a new hearing could not result in any change. The purpose of the hearing was to ensure that Bethel understood the terms of the plea agreement before he entered a plea. This purpose no longer has any relevance. Bethel’s guilty plea was withdrawn. The plea agreement was voided by Bethel’s breach.

{¶ 87} Because a new hearing could not materially change the position of the parties, there is no need for either a new hearing or a new trial. A new hearing would be an empty formality; a new trial would be a “windfall.” Waller, 467 U.S. at 49, 104 S.Ct. 2210, 81 L.Ed.2d 31. Accordingly, we overrule Bethel’s third proposition of law.

B. Crim.R. 11(F)

{¶ 88} Crim.R. 11(F) provides that when a negotiated plea of guilty is offered in a felony case, “the underlying agreement upon which the plea is based shall be stated on the record in open court.” In this case, the underlying agreement was stated on the record, but not in “open court,” as the court was closed while the plea agreement was being discussed.

{¶ 89} However, Bethel did not object to the closure of the courtroom during the discussion of the plea agreement. While Bethel’s silence did not waive his constitutional right to a public trial, see State v. Hensley (1906), 75 Ohio St. 255, 266, 79 N.E. 462, a contemporaneous objection is necessary to preserve error for appellate review of a violation of Crim.R. 11(F).

{¶ 90} Thus, Bethel cannot prevail on his claim under Crim.R. 11(F) unless he shows plain error. To do this, he must show that the outcome of the trial clearly would have been otherwise without the alleged error. State v. Long, 53 Ohio St.2d at 97, 7 O.O.3d 178, 372 N.E.2d 804. Bethel does not explain how he was prejudiced by the trial court’s violation of Crim.R. 11(F). Cf. State v. Spivey (1998), 81 Ohio St.3d 405, 418, 692 N.E.2d 151 (violation of Crim.R. 11(F) not prejudicial where terms of the plea were stated on the record in chambers). We overrule Bethel’s fifth proposition of law.

III. Evidentiary Issues

A. Gang-Affiliation Evidence

{¶ 91} State’s witness Donald Langbein testified that Bethel was a member of the Crips street gang. Langbein also identified a photograph of himself and Bethel making hand signals that, according to Langbein, were “gang signs” of the Crips. This photo was published to the jury after Langbein identified it. In his seventh and eighth propositions of law, Bethel claims that this evidence was inadmissible.

{¶ 92} Bethel did not object to the gang-affiliation testimony at trial. Nor did he object to the photo when Langbein identified it in court, even though it was published to the jury at that time. He objected only after the state’s case had concluded, when the court was considering the admission of exhibits. Bethel’s failure to timely object to the testimony, or to the photo, waives the issues raised in his seventh and eighth propositions of law. We overrule these propositions.

B. Tape-Recorded Conversations

{¶ 93} In his 18th proposition of law, Bethel contends that the trial court erred when it refused to provide State’s Exhibit T-l, the tape recording of the Bethel-Langbein conversation on October 19, 2000, to the jury.

{¶ 94} Parts of the tape were played during the state’s case and during Bethel’s cross-examination. However, the tape was never offered nor formally admitted into evidence. During its guilt-phase deliberations, the jury requested the tape. Before responding, the trial court consulted counsel for both parties, and they agreed that the appropriate response was “[Y]ou have all of the evidence which has been admitted.” Accordingly, the trial court told the jury: “You have everything you need. * * * [Y]ou have everything that’s been admitted into evidence, and the rest you will have to rely on your collective memory for.”

{¶ 95} Since the defense did not object and agreed that this was the appropriate response to the jury’s request for the tape, the issue is waived. See State v. Campbell (2000), 90 Ohio St.3d 320, 324, 738 N.E.2d 1178. Neither did the trial court commit plain error. When the jury asks to see an exhibit, it is within the trial court’s discretion to grant or deny that request. See State v. McGuire (1997), 80 Ohio St.3d 390, 396, 686 N.E.2d 1112; State v. Clark (1988), 38 Ohio St.3d 252, 257, 527 N.E.2d 844. “The term ‘abuse of discretion’ * * * implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855. The trial court’s refusal to send the tape to the jury was not unreasonable, arbitrary, or unconscionable.

{¶ 96} Bethel also claims that the trial court, having allowed the state to play parts of one tape, should have allowed the defense to play tapes of other conversations between Bethel and Langbein during Langbein’s cross-examination. Bethel argues that excluding the other tapes violated Evid.R. 106: “When a writing or recorded statement or part thereof is introduced by a party* an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.”

{¶ 97} However, Bethel did not proffer the tapes he wanted the jury to hear at his trial. Because the other tapes are not in the record, we cannot determine whether they should in fairness “be considered contemporaneously with” Exhibit T-l. See State v. Webb, 70 Ohio St.3d at 337, 638 N.E.2d 1023. Hence, Bethel has also failed to preserve this issue.

{¶ 98} Bethel also argues that the exclusion of the other conversations violated his right to confront Langbein with statements made by Langbein during those conversations. But at trial Bethel did not argue that he was entitled to use the tapes to confront Langbein with Langbein’s statements. Bethel argued only that the jury should hear the tapes because they contained Bethel’s denials of involvement in the murders. Bethel’s confrontation claim is waived by his failure to present it to the trial court as well as by his failure to proffer the tapes.

{¶ 99} Because the issues presented by Bethel’s 18th proposition of law were not preserved at trial, we overrule that proposition.

C. Weight and Sufficiency of the Evidence

{¶ 100} In his 16th proposition of law, Bethel contends that the verdict was against the manifest weight of the evidence. See R.C. 2953.02. A court considering a manifest-weight claim “review[s] the - entire record, weighs the evidence and all reasonable inferences, [and] considers the credibility of witnesses.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717. The question to be determined is “whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. at 175, 20 OBR 215, 485 N.E.2d 717.

{¶ 101} The key evidence supporting Bethel’s conviction was his own statements to Langbein and Campbell and his proffer of August 30, 2001. On each occasion, Bethel admitted killing Reynolds and Hawks with a 9 mm handgun.

{¶ 102} Langbein also testified, and Bethel admitted, that Bethel offered to take Reynolds home on June 25, 1996. A friend of Hawks testified that the last time she saw Hawks and Reynolds, they were getting into Bethel’s car. Bethel also admits that he picked up Hawks at some point on June 25, 1996, but claims that he dropped off both victims at a Kentucky Fried Chicken restaurant.

{¶ 103} Bethel had purchased a shotgun like the one used in the murders less than two weeks earlier. While police found a similar shotgun purchased by Bethel’s friend during a search of Bethel’s trailer, Bethel’s shotgun was never located. Bethel claimed that it had been stolen.

{¶ 104} When police searched the home of Cheveldes Chavis (Jeremy’s brother and Bethel’s friend), they found a document captioned “Supplemental Discovery,” which had Jeremy Chavis’s fingerprints on it, and a copy of an affidavit in Tyrone Green’s aggravated-murder case that claimed that Reynolds said that he had seen Green shoot a man.

{¶ 105} Bethel’s proffer, explaining how the murders were committed, supports a finding of prior calculation and design. Bethel admitted that before picking up Reynolds and Hawks, he and Jeremy discussed what they were going to do. After Bethel fired an entire clip at Reynolds and Hawks, Bethel accepted a fresh clip from Jeremy, reloaded, approached the victims, and emptied a second clip into them from close range.

{¶ 106} The autopsies showed that Reynolds was shot ten times, once with a shotgun, and Hawks was shot four times. Nine-millimeter bullets were recovered from both bodies. Reynolds had four head wounds, at least one of which was inflicted at close range. Hawks had two head wounds, at least one of which was inflicted at close range. . These wounds confirm Bethel’s statement in his proffer that he fired several shots at Reynolds and Hawks from a distance, approached them as they lay on the ground, and shot them again at close range.

{¶ 107} Bethel argues that the account in his proffer is inconsistent with the victims’ wounds and the crime-scene evidence. However, his claims are vague and largely conjectural. Bethel claims that some of the victims’ wounds could not have been inflicted from a distance of 30 to 40 feet. But this fact is not inconsistent with Bethel’s proffer; Bethel never said he fired all his shots from that distance. Rather, after firing his initial fusillade, he reloaded his gun, approached the victims, and shot them at close range.

{¶ 108} Bethel’s argument that his proffer is inconsistent with the physical evidence is partially based on wound angles that he claims are inconsistent with those from shots fired at a distance. However, his argument assumes that the victims were standing upright when these wounds were inflicted. Bethel fails to take into account his own admission that the victims fell to the ground when they were shot.

{¶ 109} Bethel also argues that the lack of bleeding from Reynolds’s shotgun wound indicates that this wound was inflicted after Reynolds’s death and that this evidence is inconsistent with the proffer, which states that Chavis fired his shotgun at the same time Bethel began firing. However, the coroner testified that the wound could have been inflicted either “very soon before or immediately after” Reynolds’s fatal head wound. (Emphasis added.)

{¶ 110} Bethel argues in his brief that his statement to Campbell placed Chavis in the car during the shootings, thus contradicting his other statements that Chavis fired the shotgun. But there is no contradiction. The Campbell statement does not place Chavis in the car during the entire crime. To the contrary, Campbell testified that Bethel told her that Chavis “started crying and went to the car” after the initial shooting. (Emphasis added.)

{¶ 111} This is not a ease in which the evidence weighs heavily against conviction; the jury’s verdict was not a manifest miscarriage of justice. Martin, 20 Ohio App.3d 172, 20 OBR 215, 485 N.E.2d 717. Rather, it is a case in which the defendant admitted guilt on three separate occasions, in which those admissions are fully consistent with the physical evidence, and in which the defendant had a strong motive to kill the victims. We overrule Bethel’s 16th proposition of law.

{¶ 112} In his 17th proposition of law, Bethel contends that the evidence was legally insufficient to support his conviction. The test of sufficiency of the evidence is whether a rational trier of fact, viewing the evidence in the light most favorable to the state, could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 309, 99 S.Ct. 2781, 61 L.Ed.2d 560.

{¶ 113} Bethel’s statements provide legally sufficient evidence of his guilt. Bethel’s 17th proposition of law is overruled.

IV. Voir Dire

{¶ 114} In his 15th proposition of law, Bethel identifies ten prospective jurors who were excused for cause because the trial court concluded that their difficulties with capital punishment rendered them unable to fairly consider the death penalty. Bethel contends that each of these excusáis was improper. Bethel also claims that the trial court erroneously overruled his challenges of two prospective jurors for cause.

A. Prosecution Challenges for Cause

{¶ 115} In each case for which Bethel alleges that the trial court improperly excused a venireman for cause, Bethel objected to the excusal. Nevertheless, the state argues that Bethel waived all but plain error by failing to state specific grounds for his objections.

{¶ 116} Bethel based his objections as to four veniremen, Eaton, Johnston, O’Harra, and Carpenter, solely on his claim that death qualification is unconstitutional. He articulated no other objection to excusing these veniremen for cause. Bethel has thus waived any objections based on other grounds, such as the voir dire responses of the veniremen in question.

{¶ 117} The state’s contention is incorrect with regard to the other six prospective jurors. In the cases of Shultz, Rhatigan, Poindexter, and Hilty, Bethel specifically objected to excusal on the grounds that the prospective juror’s voir dire responses did not support a challenge for cause. Therefore, these objections were not waived.

{¶ 118} A juror may be excused for cause if his views on capital punishment “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581; State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 40. A trial court’s resolution of a challenge for cause will be upheld on appeal unless it is unsupported by substantial testimony. State v. Wilson (1972), 29 Ohio St.2d 203, 211, 58 O.O.2d 409, 280 N.E.2d 915.

{¶ 119} Venireman Rhatigan never stated that she was categorically opposed to capital punishment. Asked whether she would give capital punishment “a fair shake,” she said: “I think maybe. But it would be very difficult.” She did not know whether she could sign a death verdict. She thought “maybe” she could follow the law, but “wouldn’t promise” to do so. Later, she said she would try to be fair and to follow the law, but “with only two murders I would be predisposed to weigh the mitigating factors more heavily.” She reiterated that it would be very difficult to sign a death verdict, although she allowed that it was “possible” that she would do so.

{¶ 120} Rhatigan’s refusal to promise to follow the law and fairly consider a death sentence supports a finding that her ability to follow the law was substantially impaired. Thus, the record supports the trial court’s decision to excuse her for cause.

{¶ 121} Venireman Shultz was “completely against” capital punishment, although he believed that some people deserved it. Even though he “would do whatever [he was] charged to do legally,” he did not think that he could sign a death verdict.

{¶ 122} In response to a question by defense counsel, Shultz mentioned Susan Smith and Timothy McVeigh as examples of persons who deserved the death penalty. Asked whether he could have voted for a death sentence in the Susan Smith case, Shultz said: “My mind is telling me yes right now.” (Emphasis added.) He said he could “absolutely” follow the judge’s instructions “as a civic duty” and could consider each of the possible sentences.

{¶ 123} Shultz’s final statements, viewed in isolation, do not suggest impairment. “However, where a prospective juror gives contradictory answers on voir dire, the trial judge need not accept the last answer elicited by counsel as the prospective juror’s definitive word. * * * Rather, ‘it is for the trial court to determine which answer reflects the juror’s true state of mind.’ ” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 66, quoting State v. Jones (2001), 91 Ohio St.3d 335, 339, 744 N.E.2d 1163. Shultz had already said that he was completely against capital punishment, even though he claimed he could follow the judge’s instructions. Thus, substantial testimony supported excluding Shultz. The trial judge did not abuse his discretion by so doing. See State v. Webb, 70 Ohio St.3d at 339, 638 N.E.2d 1023.

{¶ 124} Poindexter and Hilty also gave contradictory answers. Poindexter was not completely against capital punishment. However, she said on voir dire that she could not and “probably wouldn’t sign” a death verdict if she were the last juror to sign the verdict form. She also said that “maybe” she could do it after hearing the evidence, but that she did not know. Later she said that she could follow the trial court’s instructions and “would have to” vote for a death sentence if the state proved its case. She stated that she could sign a death verdict, although she did not retract her earlier statement that she could not provide the final signature. The trial judge granted the state’s challenge for cause because Poindexter “said everything on both sides of this issue.”

{¶ 125} Hilty initially said she possibly could sign a death verdict, but then said: “I couldn’t do it.” Later, she said, “I guess I could do it.”

{¶ 126} The record supports the trial judge’s decision to grant these challenges. Both Poindexter and Hilty expressed severe doubts about their ability to participate in a death sentence. The record justifies a finding that their ability to perform in accordance with their instructions and oath was substantially impaired. To the extent that they contradicted themselves on this point, the trial judge’s resolution of the question is entitled to deference. Webb, supra.

{¶ 127} Finally, although Bethel did not state specific grounds for objecting to the excusáis of Hackney and Stynchula, the basis of Bethel’s objections can be fairly discerned from the record. Hence, Bethel’s objections to these excusáis were not waived.

{¶ 128} These challenges were also properly granted under the substantial-impairment standard. Hackney believed that she could follow the law, although it would be difficult. But she said she could not actually sign a death verdict, even if that was “the right thing to do.” Signing would make her feel guilty: “[MJorally, I would have a real hard time dealing with it.” The only circumstance in which she would be willing to sign would be when a defendant had committed a murder in prison.

{¶ 129} Stynchula was not challenged for cause by either party during the death-qualification voir dire. However, two days later, she disclosed, without prompting, that she did not know whether she could sign a death verdict. She said: “[TJhe past two days just thinking and thinking of it just gives me a — gets me in the pit of my stomach.” She even worried that she might be excommunicated from her church if she signed a death verdict.

{¶ 130} We hold that the trial court’s decision to excuse these six prospective jurors for cause was supported by substantial testimony. In each case, voir dire provided a sufficient basis for the trial court to conclude that the juror’s views on capital punishment would either prevent or substantially impair the performance of the juror’s duties in accordance with his instructions and oath.

B. Defense Challenges for Cause

{¶ 131} A defendant has a constitutional right to exclude for cause any prospective juror who will automatically vote for the death penalty. Morgan v. Illinois (1992), 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492. Bethel challenged veniremen Ford and Collier for cause on this basis. The trial court overruled both challenges, although it sustained several other challenges for cause by Bethel.

{¶ 132} Venireman Ford said on voir dire: “I believe in capital punishment, I definitely believe that there are circumstances and factors that must be weighed out and I definitely fall in the middle” between an automatic death sentence and an automatic rejection of death. He said that if life were the appropriate sentence, he could sign a life verdict. When asked whether he would be “predisposed to the death penalty if he found that the defendant did purposely kill two people,” he said, “Yes.” However, he added, “I [would] totally try to do my best to clearly accept all the evidence and factors that are presented,” and “I would definitely try my very best to be open-minded about the process.”

{¶ 133} Based on the totality of Ford’s voir dire, the trial court could properly conclude that Ford understood the importance of considering all the evidence and the relevant factors and that he would not automatically vote for death. Thus, substantial testimony supports the trial court’s decision not to exclude him for cause.

{¶ 134} As for venireman Collier, Bethel was not prejudiced by the denial of his challenge to Collier. Although Bethel’s challenge for cause was denied, Collier did not sit on the jury, and Bethel was not forced to use a peremptory challenge to eliminate him. See State v. Eaton (1969), 19 Ohio St.2d 145, 48 O.O.2d 188, 249 N.E.2d 897, paragraph one of the syllabus.

{¶ 135} No reversible error attaches to the trial court’s rulings on the defendant’s challenges for cause, which were raised in Bethel’s 15th proposition of law. That proposition is therefore overruled.

V. Lesser Included Offense

{¶ 136} In his 14th proposition of law, Bethel contends that the trial court should have granted his request for an instruction on the lesser included offense of murder. “Murder (R.C. 2903.02) is a lesser included offense of aggravated murder (R.C. 2903.01[A]). * * * The sole difference is that prior calculation and design is absent from murder.” State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 36. Bethel claims that the evidence reasonably supports a finding that the killings were purposeful, and thus constituted murder, but were not committed with prior calculation and design.

{¶ 137} However, Bethel’s defense was alibi; he and his mother testified that he was at his mother’s house between 10:00 and 11:00 p.m., June 25, 1996 (i.e., at the time Ron Bass heard gunshots). Ordinarily, when a defendant presents a complete defense to the substantive elements of the crime, such as an alibi, an instruction on a lesser included offense is improper. See, e.g., State v. Strodes (1976), 48 Ohio St.2d 113, 117, 2 O.O.3d 271, 357 N.E.2d 375.

{¶ 138} In such cases, a defendant is entitled to a lesser-included-offense instruction “only if, based on the evidence adduced by the state, the trier of fact can find for the defendant * * * on some element of the greater offense which is not required to prove the commission of the lesser offense and for the state on the elements required to prove the commission of the lesser offense.” State v. Solomon (1981), 66 Ohio St.2d 214, 20 O.O.3d 213, 421 N.E.2d 139, paragraph two of the syllabus. “[I]f due to some ambiguity in the state’s version of the events involved in a case the jury could have a reasonable doubt regarding the presence of an element required to prove the greater but not the lesser offense, an instruction on the lesser included offense is ordinarily warranted.” Id. at 221, 20 O.O.3d 213, 421 N.E.2d 139. Thus, Bethel was entitled to a murder instruction only if the state’s evidence was ambiguous on the element of prior calculation and design, such that a trier of fact could reasonably have found that Bethel killed the victims purposefully but without prior calculation and design.

{¶ 139} Bethel cites a portion of the testimony of one of the state’s witnesses, Theresa Cobb Campbell, in support of his argument. According to Campbell, when Bethel confessed the murders to her, he told her that when he, Chavis, and the victims went to shoot guns, he “had a feeling to shoot” and that he shot the victims “because he felt like it.” Bethel contends that these statements, construed in the light most favorable to him, negated the element of prior calculation and design and could have led a trier of fact to conclude that the shootings were murders rather than aggravated murders.

{¶ 140} The portion of Campbell’s testimony cited by Bethel does not create an ambiguity in the state’s case. In Solomon, “[t]he sole evidence of a scheme designed to implement the calculated decision to kill * * * was the passage of time” between two incidents. (Emphasis added.) 66 Ohio St.2d at 221, 20 O.O.3d 213, 421 N.E.2d 139. The court found that “[ajlthough such evidence might have provided the jury with a reasonable basis for finding prior calculation and design, it is ambiguous in nature and did not necessarily lead to that conclusion.” Id.

{¶ 141} Here, Campbell’s testimony was far from being the sole evidence of Bethel’s prior calculation and design. The fact that each witness does not provide testimony conclusively proving every element of a crime does not mean that a defendant is entitled to instructions on every lesser included offense. The whole of the state’s case should be considered in determining whether an instruction on a lesser included offense should reasonably be given. State v. Goodwin (1999), 84 Ohio St.3d 331, 345, 703 N.E.2d 1251.

{¶ 142} Campbell’s testimony actually supports the conclusion that Bethel planned the murders. He took the victims to a secluded spot. He shot them both in quick succession from close range. He then reloaded his gun and shot some more. He expressed to Campbell no regret or confusion as to his motivation.

{¶ 143} Even when considering Campbell’s testimony in a light most favorable to Bethel, we conclude that under all the evidence presented, no reasonable trier of fact could have found that Bethel killed the victims purposefully but without prior calculation and design. Hence, Bethel was not entitled to a lesser-included-offense instruction on murder. Bethel’s 14th proposition is overruled.

VI. Penalty-Phase Issues

A. Ashworth Issue

{¶ 144} In his sixth proposition of law, Bethel contends that the trial court erred by allowing Bethel to waive the presentation of mitigation evidence without inquiring into the knowing and voluntary character of Bethel’s decision. See, generally, State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, paragraph one of the syllabus.

• {¶ 145} In the penalty phase, Bethel made a brief unsworn sta