State v. Drummond (111 Ohio St. 3d 14, 2006)

Lanzinger, J.

{¶ 1} On the evening of March 24, 2003, during a drive-by shooting, assault-rifle bullets and 9 mm shots were fired into the home of Jiyen Dent in Youngstown, Ohio. One bullet killed three-month-old Jiyen Dent Jr., who was in the living room. John E. Drummond Jr., was indicted, tried, and convicted by a jury of the aggravated murder of the infant Jiyen.

{¶ 2} Drummond was charged with two counts of aggravated murder. Count One charged Drummond with the aggravated murder of Jiyen with prior calculation and design. Count Two charged Drummond with aggravated murder for purposely causing the death of a child under 13 years of age.

{¶ 3} Both counts included death-penalty specifications for a course of conduct involving the purposeful killing of, or attempt to kill, two or more persons, R.C. 2929.04(A)(5), and murder of a child under 13 years of age, R.C. 2929.04(A)(9). Drummond was also charged with attempted murder in Counts Three and Four, felonious assault in Counts Five and Six, and improperly discharging a firearm in Count Seven. Each count included a firearm specification. Count Eight, having a weapon while under a disability, was severed from the other counts and later dismissed. Drummond’s friend, Wayne Gilliam, was indicted, tried, and convicted in a separate case and was sentenced to 54 years to life in prison. The court of appeals affirmed the judgment of the trial court. State v. Gilliam, Mahoning App. No. 03-MA-176, 2005-Ohio-2791, 2005 WL 1324751.

{¶ 4} Drummond now appeals his convictions and sentence of death.

State’s Evidence at Trial

{¶ 5} The state presented several witnesses who testified at Drummond’s trial that Drummond and Brett Schroeder were members of the Lincoln Knolls Crips gang and considered themselves “original gangsters,” or “OGs.” Schroeder died from gunshot wounds in May 1998 in a death ruled a homicide. The perpetrator was convicted and is serving time in prison.

{¶ 6} The Dent family, Jiyen Dent Sr., Latoya Butler, his girlfriend, and their son, Jiyen Dent Jr., had moved into a home at 74 Rutledge Drive in Youngstown around March 20, 1998. Dent did not know Drummond, Gilliam, or Schroeder.

{¶ 7} In the early evening of the shooting, a few days after Dent moved in, ten to 20 people gathered for a party outside the home of Gail Miller on Duncan Avenue in Youngstown to drink and listen to music. Sometime that evening, Drummond and Gilliam arrived.

{¶ 8} During the party, James “Cricket” Rozenblad overheard Drummond, Gilliam, and Andre Bryant talking about a “guy moving in in [their] neighborhood [who] could have had something to do with the death of Brett Schroeder.” Yaraldean Thomas also saw Drummond and Gilliam whispering to one another and heard Drummond say “It’s on” after they finished talking.

{¶ 9} Drummond left the party and returned a short time later with an assault rifle. He and Gilliam then got into Gilliam’s burgundy Chevrolet Monte Carlo and drove down Duncan Lane toward Rutledge Drive. Approximately five to 15 minutes later, 11 shots were fired from an assault rifle into the Dent home. Within a few seconds, a 9 mm round was fired into the Dent home, and five 9 mm rounds were fired into the home of Diane Patrick, the Dents’ next-door neighbor, who lived at 76 Rutledge Drive.

{¶ 10} At around 11:25 p.m. that evening, Dent was in the living room watching a movie, Butler was in the kitchen, and Jiyen was in a baby swing in the living room. While watching TV, Dent heard gunshots and saw “bullets start coming through the windows and the walls.” He then picked up the baby and ran down the hallway towards the bathroom. Dent fell in the hallway and noticed that Jiyen had been shot in the head. After making sure that his girlfriend was safe, Dent called 911.

{¶ 11} That same night, Rebecca Perez, who lived nearby on Rutledge Drive, heard two series of shots when taking her trash outside. She saw shots coming from the corner of Duncan Lane and Rutledge Drive and noticed “a shadow up the street.” Shortly thereafter, Perez saw a maroon car pull out of the driveway next to 65 Rutledge Drive, where Drummond lived. The car then drove without any headlights on past the Perez home. Approximately half an hour to 45 minutes later, Perez noticed that the maroon car had returned to the driveway next to Drummond’s home. At trial, Perez identified Gilliam’s Monte Carlo as the car she had seen that night.

{¶ 12} Leonard Schroeder, the brother of Brett Schroeder, who had been killed nearly five years before, lived near Rutledge Drive. On the evening of March 24, Leonard heard a series of gunshots. Shortly afterwards, Drummond and Gilliam arrived at Leonard’s home in Gilliam’s car. Leonard asked Drummond about the shots, and Drummond said that he “didn’t know who it is. It was probably Cricket and Wany.” Gilliam said only that “some fools are shooting over there.”

{¶ 13} Arriving police and paramedics found that Jiyen had been killed. Investigators secured the scene and began their investigation. Officer Kerry Wigley walked down Rutledge Drive, looking for shell casings, and noticed two men in the dark, leaning against a car parked in a driveway. Wigley intercepted the two men, asked for their identification, and identified them as Drummond and Gilliam.

{¶ 14} During the investigation, Patrolman David Wilson found ten cartridge casings from assault-rifle ammunition lying between two houses that were across the street and several houses away from the Dent home on Rutledge Drive. The police also found six 9 mm shell casings at the corner of Rutledge Drive and Duncan Lane.

{¶ 15} Investigators found that someone had fired 11 bullets from an assault rifle into the Dent home. Three bullets had hit the house near the front door, three others had hit elsewhere on the front of the house, and five bullets had hit the west side of the house where the bedrooms were located. A 9 mm bullet hole was also found on the east side of the Dent home.

{¶ 16} Ed Carlini, an Ohio Bureau of Criminal Investigation (“BCI”) agent, examined the trajectory of the bullets entering the Dent home. Carlini determined that the shots had originated from a location on Rutledge Drive where ten shell casings were found. He also determined that the 9 mm shot that hit the Dent home originated from east of the house.

{¶ 17} Carlini and Officer Anthony Marzullo, a crime lab technician, examined bullet holes inside the Dent home. There were five bullet holes inside the southwest bedroom and three bullet holes inside the northwest bedroom. One bullet entered the living room, fragmented, and was found in the far living-room wall. A 9 mm slug was found in the kitchen wall. Marzullo recovered other bullet fragments and copper-jacketed slugs inside the house. He also recovered bullet fragments and bits of blue plastic that had been removed from the victim during the autopsy.

{¶ 18} Andrew Chappell, a ballistics expert, compared the ten 7.62 x 39 mm assault-rifle cartridge casings and concluded that they could have been fired from the same firearm. He stated that an assault rifle such as an AK-47 semiautomatic rifle would have fired this ammunition. Chappell examined the six 9 mm cartridge casings and concluded that each of the casings had been fired from the same firearm. Chappell also examined the slugs and bullet fragments obtained from the Dent home and identified one 9 mm Luger bullet, a 7.62 mm bullet, a 7.62 mm bullet jacket fragment, a piece of metal, and a couple of lead fragments. He determined that the 7.62 bullet and the 7.62' bullet jacket fragment were fired from the same weapon, but he was unable to make any comparisons with the lead fragment and the blue plastic recovered from the victim at the autopsy.

{¶ 19} As the murder investigation progressed, Drummond and Gilliam were identified as suspects. On March 27, 2003, the police searched Drummond’s Rutledge Drive residence and arrested him. When he was arrested, Drummond told police “that he had nothing to do with the shooting of the baby. He was on Duncan Lane that night and heard gunshots and he walked to Rutledge to see what had happened.” During the search, the police seized a drum containing 75 rounds of 7.62 x 39 mm ammunition, three boxes containing 46 rounds of 7.62 x 39 mm ammunition, a single round of 7.62 x 39 mm ammunition, an empty AK magazine, a Taurus 9 mm handgun with no barrel, a bulletproof vest, and several rounds of 9 mm, .45 caliber, and .357 caliber ammunition.

{¶ 20} During the search of Drummond’s residence, police also seized an album of gang photographs of the Lincoln Knolls Crips. Drummond appears in many photographs. The album also contained a number of photographs and tributes to Brett Schroeder and other members of the gang who had been killed. One page of the album shows two photographs of Drummond with a cake that says, “RIP Brett.” Another photograph shows tattoos of guns, tombstones, and other symbols on Drummond’s back. The tombstone tattoo contains Schroeder’s name and names of Drummond’s other dead friends.

{¶ 21} Dr. Dorothy Dean, Deputy Coroner for Franklin County, conducted the autopsy of three-month-old Jiyen. Dean testified that Jiyen died from a gunshot wound to the head. The entry wound was on the back of Jiyen’s head, and the exit wound was just below the left eye.

{¶ 22} Between March and August 2003, Chauncey Walker and Drummond were incarcerated in the same cellblock at the Mahoning County jail. Drummond talked to Walker about his case almost “[ejvery single day.” Walker testified, “[A]s soon as he’d come out of his cell, he’d come directly to my cell * * * [and] he’d be talking to me about that case.” As to what happened on March 24, Drummond told Walker that he “was sitting in his sister[’s] driveway and Wayne pulled up, and * * * he asked Wayne to take him to go get a gun somewhere. * * * So Wayne gave him a ride to go get the gun. * * * [W]hen Wayne backed up in the driveway after he * * * got the gun, the dude, Jiyen, supposed to have stayed * * * a couple houses up from his sister or right around the corner, * * * [and] he said he got out the car and fired some shots at the house and then he got back in the car and pulled off.” Drummond told Walker that “he intended to hurt whoever the bullet hit,” but “he didn’t intend to kill no baby.”

{¶ 23} Nathaniel Morris was another inmate in the same cellblock with Drummond and Walker. During May 2003, Morris overheard Drummond tell Walker that “he didn’t meant [sic] to kill the baby; he was trying to get at somebody else * * *.” On more than one occasion, Morris overheard Drummond asking Walker, “[Y]ou think I’m going to get convicted on this, you think they have anything on me, stuff like that.”

Defense Case

{¶ 24} Drummond called five witnesses. William Harris, an inmate at the Mahoning County jail, was incarcerated in a cell adjacent to Walker’s. He said that in March 2003, Walker told Harris that “he knew how [Walker] could get outta of jail. [Walker] would have to go over and talk to the prosecutor and say that John [Drummond] admitted to his part in the case.” Harris also said that Walker’s cell was some distance from Drummond’s cell and that Drummond and Walker “couldn’t talk unless they yelled across the range.” On another occasion, Harris saw Walker enter Drummond’s cell after he “told the deputy he was gonna get a magazine, and he come out with [Drummond’s] discovery pack [i.e., court papers].”

{¶ 25} Elisa Rodriguez, who lived next door to Drummond on Rutledge Drive, testified that on the evening of March 24, she was at home with her eight-year-old son. Rodriguez observed Gilliam’s car parked in front of her house. While in her back bedroom, she heard voices, looked into the back yard, and saw Gilliam and a “tall, skinny guy.” She saw them walk towards the front of her home and then heard shooting. Rodriguez and her son went to the living room, looked out the front window, and saw Gilliam standing in her neighbor’s front yard shooting a “big gun” at a house across the street. Rodriguez said that after the shooting stopped, Gilliam got into his car alone and fled the scene. Rodriguez then saw Jawany, who was a “tall, skinny black man” from the neighborhood, running down Rutledge Drive shooting a gun. She next said that she heard Jawany firing his last gunshot in front of the Dent home and saw him flee down an alleyway between two houses. Rodriguez testified that she did not see Drummond in the area when the gunshots were fired.

{¶ 26} Rodriguez’s son, Jimmy Figuera, testified that on that evening, he heard gunshots while at home with his mother. He looked out the front window and saw Wayne shooting a “big” gun. He then saw “Wayne cornin’ down the street shootin’ from Duncan.” Jimmy did not see Drummond, whom he referred to as “Uncle J,” when the shootings took place.

Trial Result

{¶ 27} The jury found Drummond guilty as charged, and Drummond was sentenced to death. Drummond now appeals to this court as a matter of right.

Pretrial and Trial Issues

{¶ 28} Pursuant to our order on November 4, 2005, the parties submitted supplemental briefs on the issue of whether Drummond was deprived of his Sixth Amendment right to a public trial.

Facts of Public-Trial Issue

{¶ 29} Following a luncheon recess on February 4, 2004, the trial court announced:

{¶ 30} “Ladies and gentlemen that are here to watch the trial, the Court is going to clear the courtroom for the remainder of the afternoon. You are invited back tomorrow morning at 9 o’clock in the morning. Okay? Deputies, clear the courtroom. And leave the building, not only to leave the courtroom but leave the building.”

{¶ 31} Afterwards, the trial court explained why it cleared the courtroom:

{¶ 32} “The Court: It’s come to the attention of the Court that some of the jurors — or witnesses feel threatened by some of the spectators in the court. The Court’s making a decision that until we get through the next couple of witnesses I’m going to clear the courtroom. That includes the victim’s family, the defendant’s family and all other spectators. The Court had two incidents yesterday involving one of the spectators where he showed total disrespect to the Court in chambers and gave the deputies a very hard time. I didn’t hold him in contempt of court, but just after that then another individual — there was a physical altercation between that individual who also came to watch the trial. His name’s Damian Williams. * * *

{¶ 33} “* * *

{¶ 34} “The Court: Who ultimately got charged with assault on a peace officer. So over the objection of the defendant I’m clearing the courtroom just for today only. Mr. Gentile?

{¶ 35} “[Defense Counsel] Mr. Gentile: * * * We would object to the Court’s ruling. The defendant is entitled to a public trial under the United States Constitution. I don’t disagree that there has been some sort of misconduct here that has been brought to my attention. However, that has not been attributable to the defendant, to Mr. Drummond, and we, therefore, don’t think that he should be punished in terms of not having the support, people — his family, that in the nature of this case, a capital case, that he would require making.

{¶ 36} “The Court: Just to perfect the record, I do believe that the one individual who was not charged with contempt of court yesterday, Michael Peace, is in fact John Drummond’s brother.

{¶ 37} “[Prosecuting Attorney] Mr. Franken: No.

{¶ 38} “The Court: No?

{¶ 39} “Mr. Franken: Michael Peace says he’s family. Others have said he isn’t. He told Deputy Schmuck that he was family to Drummond. He’s not a brother though.

{¶ 40} “The Court: Right. And we go back to when we were seating the jury and John Drummond approached a potential juror’s husband in the jail, so. There’s been a string of things.

{¶ 41} “* * *

{¶ 42} “The Court: * * * We would all agree that the media is permitted in so at least we have a record by a disinterested outside source.”

{¶ 43} In an entry dated February 5, the trial court stated, “Due to the behavior of some of the Courtroom spectators and the fear of retaliation expressed by various witnesses, the Court, upon motion of the State, ordered all spectators removed from the Court for the duration of February 4, 2004 beginning at 1:30 p.m. This over the objection of the Defendant. The media will be permitted access.”

{¶ 44} The cross-examination of James “Cricket” Rozenblad and the testimony of two other prosecution witnesses, Nathaniel Morris and Yaraldean Thomas, occurred while the courtroom was closed.

{¶ 45} Before Leonard Schroeder’s testimony the next day, the trial court announced:

{¶ 46} “The Court: * * * We’re going to continue on with the testimony. And at this time I’m going to clear the courtroom until another witness is called. So for the people that are spectators in the courtroom, you may remain in the courthouse but you probably will not be permitted back in till about quarter till 3:00 or so.”

{¶ 47} In an entry that day, the trial court stated, “Due to the safety concerns expressed by witness Leonard Schroeder Jr., the Court ordered the Courtroom closed (February 5, 2004) to all except the media during his testimony only. This without objection from either party.”

{¶ 48} Schroeder then testified while the courtroom was partially closed. The spectators were allowed to return to the courtroom following his testimony, and the trial resumed without any further closure.

Discussion of Public-Trial Issue

{¶ 49} The right to a public trial is a fundamental constitutional guarantee under the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. See State v. Lane (1979), 60 Ohio St.2d 112, 119, 14 O.O.3d 342, 397 N.E.2d 1338. This guarantee is a “cornerstone of our democracy which should not be circumvented unless there are extreme overriding circumstances.” Id.

{¶ 50} The violation of the right to a public trial is considered structural error and not subject to harmless-error analysis. Waller v. Georgia (1984), 467 U.S. 39, 49-50, 104 S.Ct. 2210, 81 L.Ed.2d 31, fn. 9; Johnson v. United States (1997), 520 U.S. 461, 468-469, 117 S.Ct. 1544, 137 L.Ed.2d 718. A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante (1991), 499 U.S. 279, 310, 111 S.Ct. 1246,113 L.Ed.2d 302.

{¶ 51} The right to a public trial is not absolute, and in some instances must yield to other interests, such as those essential to the administration of justice. A trial judge has authority to exercise control over the proceedings and the discretion to impose control over the proceedings. Nonetheless, the abridgement of a defendant’s right to a public trial may occur only when necessary, and any closure must be narrowly drawn and applied sparingly. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 421, 28 OBR 472, 504 N.E.2d 37; Lane, 60 Ohio St.2d at 121, 14 O.O.3d 342, 397 N.E.2d 1338; State v. Clifford (1999), 135 Ohio App.3d 207, 213, 733 N.E.2d 621.

{¶ 52} In Waller, in the context of a suppression hearing, the United States Supreme Court set forth the following four-pronged test that courts must use to determine whether closure of a courtroom is necessary: “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.” Waller, 467 U.S. at 48, 104 S.Ct. 2210, 81 L.Ed.2d 31.

{¶ 53} Waller dealt with the suppression hearing during which • all persons other than witnesses, court personnel, the parties, and their lawyers were excluded for the entire duration. Id. at 42, 104 S.Ct. 2210, 81 L.Ed.2d 31. This case differs, as it deals with partial closure of a trial. The trial court excluded members of the public and the defendant’s family, but did so only for the length of a single cross-examination and two other witnesses’ testimony. The trial court permitted media representatives to remain in the courtroom throughout the testimony of these witnesses. Federal courts have concluded that when a trial judge orders a partial, as opposed to a total, closure of a court proceeding, a “substantial reason” rather than Waller’s “overriding interest” will justify the closure. See Woods v. Kuhlmann (C.A.2, 1992), 977 F.2d 74, 76; United States v. Sherlock (C.A.9, 1989), 962 F.2d 1349, 1357; Nieto v. Sullivan (C.A.10, 1989), 879 F.2d 743, 753; Douglas v. Wainwright (C.A.11, 1984), 739 F.2d 531, 533.

{¶ 54} The trial court’s closure order on February 4, 2004, satisfied the Waller criteria. First, the trial court’s interest in maintaining courtroom security and protecting witness safety supported the trial court’s limited closure of the courtroom. There had been a physical altercation between a spectator and courtroom deputies, and a second incident occurred in the judge’s chambers. The trial court also stated that “the fear of retaliation expressed by various witnesses” was a basis for its action. In this regard, we acknowledge the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation. Cf. Brown v. Kuhlmann (C.A.2,1998), 142 F.3d 529, 537-538 (concern for undercover officer’s safety in testifying against drug dealers justified partial closure where closure was brief and testimony given during the closure was merely corroborative). Thus, the trial court had a “substantial reason” to order the partial closure of the courtroom.

{¶ 55} Second, the closure was no broader than necessary. The courtroom was closed only while Rozenblad was cross-examined and while Morris and Thomas testified. Spectators were readmitted afterwards. Also, the trial judge provided expressly that the media could remain in the courtroom during the testimony of all these witnesses. The media presence helped safeguard Drummond’s right to a public trial. Indeed, the witnesses’ awareness of the media minimizes the risk that they would alter their testimony when the proceeding was partially closed. Moreover, the transcript of the trial became a public record. In sum, we find none of the secrecy prohibited by the Sixth Amendment. See United States v. Sherlock, 962 F.2d at 1358.

{¶ 56} Drummond contends that the closure was overly broad because his family was excluded from the courtroom along with the general public during the testimony of these three witnesses. The Supreme Court has noted a special concern for allowing a defendant’s family members to attend a trial. See In re Oliver (1948), 333 U.S. 257, 272, 68 S.Ct. 499, 92 L.Ed. 682 (“an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged”); see, also, Vidal v. Williams (C.A.2, 1994), 31 F.3d 67, 69. Although we do not condone the removal of family members from the courtroom, in this case, we hold that the trial court’s decision in excluding them for a limited time, after considering the defendant’s rights and the need to protect witnesses, did not violate Drummond’s right to a public trial. See Sherlock, 962 F.2d at 1357.

{¶ 57} With respect to the third Waller factor, the record does not show that the trial court considered alternatives to closure. However, the partial closure of the courtroom only during the cross-examination of Rozenblad and the testimony of Morris and Thomas is narrower than full closure for the entire trial. See Brown, 142 F.3d at 538.

{¶ 58} As to the final Waller factor of adequate findings, the trial court stated that there had been a physical altercation between spectators and courtroom deputies. The trial court also mentioned that another incident had occurred in the judge’s chambers and that witnesses had expressed fear of retaliation by testifying in open court. The trial court also identified Damian Williams and Michael Peace as involved in the earlier disturbances. Although the trial court should have made additional findings to clarify the reasons for closing the court, the strength of the judge’s actual findings must be evaluated in reference to the limited scope of the closure. By that standard, we conclude that the trial court’s findings were adequate. See Brown, 142 F.3d at 538; Woods, 977 F.2d at 77-78 (the fourth Waller factor was satisfied, despite the lack of specific findings of fact, where the “information gleaned” from the record was “sufficient to support the partial, temporary closure of petitioner’s trial”). There was a “substantial reason” for the partial closure, partial closure of the courtroom was narrowly drawn and limited in scope, and the trial court made sufficient findings in support of its order. Under these circumstances, where there is an interest in maintaining courtroom order and security, the trial court did not abuse its discretion in ordering the limited closure of the courtroom. Accordingly, we hold that the trial court did not violate Drummond’s constitutional right to a public trial by closing the trial on the afternoon of February 4, 2004.

{¶ 59} Regarding closure on February 5, 2004, the defense did not object to the trial court’s action. Defense counsel were present during the entire proceedings and were fully aware of the exclusion of the spectators from the courtroom. Thus, counsel’s failure to object to the closing of the courtroom constitutes a waiver of the right to a public trial during Schroeder’s testimony. See Peretz v. United States (1991), 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808, citing Levine v. United States (1960), 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989.

{¶ 60} Based on the foregoing, we conclude that Drummond’s Sixth Amendment right to a public trial was not violated by the partial closure of his trial on February 4 and February 5, 2004.

{¶ 61} Jury view. In proposition of law VII, Drummond argues that the trial court abused its discretion in permitting opening statements prior to a jury view. He also argues that the jury view was conducted improperly because the jurors were separated into groups when viewing the crime scene.

{¶ 62} R.C. 2945.16 provides, “When it is proper for the jurors to have a view of the place at which a material fact occurred, the trial court may order them to be conducted in a body, under the charge of the sheriff or other officer, to such place, which shall be shown to them by a person designated by the court.” Furthermore, the “trial court is vested with a broad discretion in such matters, and its judgment will not be disturbed absent an abuse of discretion.” State v. Zuem (1987), 32 Ohio St.3d 56, 58, 512 N.E.2d 585.

{¶ 63} In this case, the parties agreed that opening statements would be made before the jury view. Thus, Drummond invited any error that occurred and cannot complain. State v. Seiber (1990), 56 Ohio St.3d 4, 17, 564 N.E.2d 408; State v. Murphy (2001), 91 Ohio St.3d 516, 535, 747 N.E.2d 765. Moreover, trial counsel objected to neither the prosecutor’s references to the jury view during his opening statement nor the separation of the jurors into groups at the scene. Thus, Drummond waived all but plain error. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.

{¶ 64} We find no plain error. R.C. 2945.16 does not prohibit jury views after opening statements have been presented. The trial court properly exercised its discretion by allowing opening statements before the jury view because the parties agreed to do so. See State v. Watson (1991), 61 Ohio St.3d 1, 10-11, 572 N.E.2d 97 (no abuse of discretion by allowing the jury to view the scene a second time, after it had already begun deliberations).

{¶ 65} Drummond has also not demonstrated how the presentation of opening statements before the jury view prejudiced him. The trial court instructed the jury that opening statements were not evidence, but a “concise and orderly description of each side’s claim and defense and the evidence they expect to be produced in support of those claims and defenses.” Similarly, the trial court advised the jurors that the “only purpose of [the jury view] is to help [them] understand the evidence as it is presented in the courtroom.”

{¶ 66} No plain error occurred when the jurors were divided into groups during the jury view. Before leaving for the jury view, the trial court advised the jurors: “Because of the conditions and the size of the home, probably only four to six jurors will leave the bus at one time. So you’ll be told accordingly to go in and look around. You may not ask any questions. Bernice will be pointing things out to you that the attorneys have asked her to do.”

{¶ 67} Drummond interprets the R.C. 2945.16 phrase that the “the trial court may order them to be conducted in a body” to require that the jurors not be separated at the crime scene. However, separate viewing was the only means of getting all the jurors inside the Dent home to view the crime scene. Drummond does not claim that the separate groups were shown different parts of the house or given briefings once inside. Thus, Drummond has failed to demonstrate error. Cf. State v. Collins (Jan. 5, 2001), Greene App. No. 2000 CA 8, 2001 WL 9924, *3 (two separate vehicles taking jurors to jury view did not result in prejudicial error).

{¶ 68} Based on the foregoing, we reject proposition VII.

{¶ 69} “Other acts” evidence. In proposition of law I, Drummond argues that the trial court erred by admitting evidence of his gang-related activity. Drummond also argues that the trial court erred by admitting ammunition and a bulletproof vest seized from his residence that were not clearly linked to the offenses charged.

{¶ 70} 1. Gang-related evidence. During a search of Drummond’s bedroom, the police seized a photo album of Drummond’s gang-related activity with the Lincoln Knolls Crips. Album photos and other loose photos in the book showed Drummond making gang-related hand gestures. The pictures revealed gang-related tattoos on his back. Drummond’s tattoos included a tombstone with the name of deceased gang members, including Brett Schroeder. The photo album also contained obituary notices and tributes to deceased gang members, including Brett Schroeder.

{¶ 71} Detective Sergeant Michael Lambert, a Youngstown police gang-unit detective, described the photo album as a “gang book” and testified what the police learned from such materials. Over defense objection, the trial court admitted the photo album.

{¶ 72} Other prosecution witnesses discussed Drummond’s gang-related activities as a member of the Lincoln Knolls Crips. William and Wanda Greer live near the location of the shooting. Wanda testified that Drummond and other members of the Lincoln Knolls Crips would hang around their street. William testified that the outline of a tombstone with the initials RIP was carved on a tree in front of their home as a tribute to “Brett.” The defense, however, failed to object to this testimony and waived all but plain error. State v. Childs (1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.

{¶ 73} Rozenblad testified over defense objection that Drummond and Brett Schroeder were members of the Lincoln Knolls Crips. The defense did not object to the testimony of Yaraldean Thomas, who also identified Drummond and Schroeder as members of the Lincoln Knolls Crips and stated that they considered themselves “OGs.” The failure to object to Thomas’s testimony waives all but plain error. Id.

{¶ 74} Under Evid.R. 404(B), “[ejvidence of other crimes, wrongs, or acts is not admissible to prove” a defendant’s character in order to show criminal propensity. “It may, however, be admissible * * * [to show] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Furthermore, “[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.

{¶ 75} The state’s theory of this case was that Drummond, a member of the Lincoln Knolls Crips, fired shots into the Dent home to retaliate for the murder of Schroeder, a fellow gang member. Evidence relating to Drummond’s and Schroeder’s gang involvement therefore was admissible to prove Drummond’s motive for firing shots into the Dent home. See United States v. Santiago (C.A.9, 1995), 46 F.3d 885, 889; State v. Lewis (Dec. 26, 1991), Cuyahoga App. No. 59465,1991 WL 281001, *6. Drummond’s tattoo with Schroeder’s name inside a tombstone, the tombstone carved on the tree in Schroeder’s memory, and Drummond’s photo album with obituary notices and tributes to Schroeder were relevant to prove motive.

{¶ 76} Drummond’s photo album and testimony from other witnesses provided evidence of the Lincoln Knolls Crips culture, symbols, hand gestures, and traditions. This evidence provided the context, motive, and set-up of the crime and was admissible “to make the actions of the participants understandable to the jurors.” State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 113; see, also, State v. Robb (2000), 88 Ohio St.3d 59, 69, 723 N.E.2d 1019. Background information about the Lincoln Knolls Crips showed the jury how the belief that Dent was somehow responsible for Schroeder’s death explained why Drummond shot into the home of a person he had never met. United States v. Mills (C.A.11, 1983), 704 F.2d 1553, 1559; State v. Carillo (Oct. 13, 2000), Clark App. No. 00CA0025, 2000 WL 1513912, *3.

{¶ 77} Drummond argues that gang testimony was not admissible because Dent testified during cross-examination that he did not know Schroeder or Drummond and did not know why shots would be fired at his house. Other testimony, however, indicated that retaliation for Schroeder’s murder motivated Drummond to fire shots into the Dent home. Rozenblad testified that he had overheard Drummond and Gilliam talking about “a guy moving in in [their] neighborhood [who] could have had something to do with the death of Brett Schroeder.” Thomas heard "Drummond say “It’s on” after Drummond and Gilliam had finished their discussion. Finally, within a few minutes after this discussion, Drummond drove to Rutledge Drive and fired shots into the Dent home.

{¶ 78} Drummond also argues that the trial court erred by failing to give cautionary instructions on the photo album and the other gang-related testimony until final instructions. However, “ ‘the trial judge need not at that early stage completely instruct the jury.’ ” State v. Stallings (2000), 89 Ohio St.3d 280, 285, 731 N.E.2d 159, quoting State v. Mason (1998), 82 Ohio St.3d 144, 164, 694 N.E.2d 932. During final instructions, the trial court did instruct the jury:

{¶ 79} “During the course of the trial, evidence was received about the commission of other acts other than the offenses with which the defendant is charged in this trial. That evidence was received only for a limited purpose. It was not received, and you may not consider it to prove the character of the defendant in order that it show that he acted in conformity or in accordance with the character.

{¶ 80} “If you find the evidence of the other acts is true and that the defendant committed it, you may consider that evidence only for the purpose of deciding whether it proves the absence of mistake or the defendant’s intent or purpose to commit the offense charged in this trial.”

{¶ 81} In light of these instructions and the probative value of the photo album and the other gang-related testimony, we hold that the trial court committed no plain error in admitting the gang-related testimony of the Greers and Thomas. Nor did the trial court abuse its discretion in permitting Rozenblad’s testimony and admitting the photo album.

{¶ 82} 2. Admissibility of Drummond’s ammunition and bulletproof vest. During a search of Drummond’s residence, the police seized a drum containing 75 rounds of 7.62 x 39 mm ammunition, three boxes containing 46 rounds of 7.62 x 39 mm ammunition, a single round of 7.62 x 39 mm ammunition, and an empty AK magazine. Police also seized a Taurus 9 mm handgun with no barrel, a bulletproof vest, and several rounds of 9 mm, .45 caliber, and .357 caliber ammunition. Drummond argues that this evidence was not relevant because the state failed to fink this ammunition to the shell casings found near the crime scene.

{¶ 83} The admission of Drummond’s ammunition rested upon a question of relevance. Evid.R. 401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. See Sage, 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.

{¶ 84} The trial court did not abuse its discretion in admitting the ammunition and the 9 mm handgun seized from Drummond’s residence. Drummond’s possession of numerous rounds of ammunition shortly after the murder tended to prove that he had timely access to the means to commit the murder. In addition, Drummond’s possession of 7.62 x 39 mm rounds of ammunition tended to prove that he had access to a weapon of the type used to kill Jiyen. See State v. Hartman (2001), 93 Ohio St.3d 274, 281, 754 N.E.2d 1150 (defendant’s set of knives admissible as showing his easy access to a possible murder weapon and his familiarity with using knives). Further, Drummond’s possession of a 9 mm handgun and 9 mm ammunition was relevant because a 9 mm weapon was fired at the Dent home on the evening of March 24. The bulletproof vest was of questionable relevance, but its admission did not result in prejudicial error in view of other evidence establishing Drummond’s guilt.

{¶ 85} Based on the foregoing, we reject proposition I.

{¶ 86} Impeachment. In proposition of law II, Drummond claims that the trial court erred by refusing to permit his counsel to cross-examine Rozenblad, Morris, and Thomas about criminal charges pending against each of them.

{¶ 87} Rozenblad. Trial counsel moved to cross-examine Rozenblad about pending drug charges to show his potential bias. The prosecutor then informed the court that “[tjhere’s an open case” and that Rozenblad had not been indicted. The trial court ruled that Rozenblad could not be cross-examined “about pending charges in municipal court.”

{¶ 88} During a later defense proffer, Rozenblad testified that he had been charged with trafficking in marijuana and had waived a preliminary hearing. Rozenblad also stated that he had not made any deals with the state in exchange for his testimony and did not expect to receive a benefit on his charges if he testified against Drummond.

{¶ 89} Morris. Trial counsel sought to cross-examine Morris about pending charges for the offense of escape to show “his bias or motive [for] pleasing the state.” According to a defense proffer, Morris pleaded guilty to charges of cocaine possession. Morris was then “put in a work release program and walked away from that place. He was then charged with escape.” When Morris was stopped for traffic charges in Mahoning County, he was “booked * * * into the county jail on the drug cases and on the escape charge.”

{¶ 90} During the hearing, trial counsel provided the court with additional information about the disposition of the escape charge:

{¶ 91} “Mr. Gentile: * * * He was * * * charged with escape.

{¶ 92} “The Court: But never convicted?

{¶ 93} “Mr. Gentile: Was not convicted. When he came back—

{¶ 94} “The Court: —to Columbus—

{¶ 95} “Mr. Gentile: —it was dismissed.”

{¶ 96} The trial court ruled that the defense could not cross-examine Morris about the escape because “there’s no conviction.”

{¶ 97} Thomas. Trial counsel moved to cross-examine Thomas on pending drug charges to show his potential bias. Charges were pending against Thomas for a 1992 offense for possession of cocaine. The prosecutor informed the court that the charges “will be dismissed eventually” because the case is old, and the evidence may no longer exist to support prosecution. The prosecutor also stated that no deals about the disposition of the drug charges had been made with Thomas. However, the trial counsel averred that three joint motions to continue the case had been filed. The trial court ruled that the defense could not question Thomas about the 1992 drug charges.

{¶ 98} During a defense proffer, Michael Rich, Thomas’s attorney, stated that Thomas was indicted on drug charges in 1992, but was never served with the indictment and never appeared for his arraignment. In 2003, Thomas was arrested when he was questioned about gang activity and the state discovered that he was wanted on the 1992 drug charges. Rich stated that the prosecutor indicated to him indirectly that “based on the length of the case, how old the case was, lack of evidence, that [Thomas’s] case would get dismissed.” However, Rich thought that the state “wanted to keep some control over” Thomas until he testified.

{¶ 99} Drummond first argues that the trial court’s rulings prohibiting cross-examination of Rozenblad, Morris, and Thomas on their pending charges violated Evid.R. 608(B).

{¶ 100} Evid.R. 608(B) provides, “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of a crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness * * (Emphasis added.) The decision to admit evidence of earlier misconduct of a witness for impeachment under Evid.R. 608(B) is “within the sound discretion of the trial court.” State v. Boggs (1992), 63 Ohio St.3d 418, 424, 588 N.E.2d 813.

{¶ 101} The trial court did not abuse its discretion under Evid.R. 608(B) by-rejecting cross-examination of the three witnesses about their pending charges. Rozenblad’s marijuana trafficking and Thomas’s cocaine possession were not “clearly probative” of their character for truthfulness or untruthfulness. See State v. Norwood (Mar. 22, 2002), Lake App. No. 2000-L-146, 2002 WL 445839, *3 (cross-examination as to general drug use not clearly probative of truthfulness); see, also, Giannelli & Snyder, Evidence (2d Ed.2001) 447, Section 608.5.

{¶ 102} Similarly, Morris’s escape from a work-release program was not “clearly probative of his character for truthfulness or untruthfulness.” Hamm v. State (1990), 301 Ark. 154, 158, 782 S.W.2d 577 (“An escape is not probative of truthfulness or untruthfulness * * * under * * * Rule 608(b)”); cf. State v. Greer (1988), 39 Ohio St.3d 236, 243, 530 N.E.2d 382 (“a violation of parole constitutes a specific instance of failure to keep his word * * * [and] is almost always ‘probative of truthfulness or untruthfulness’ ”).

{¶ 103} Second, Drummond argues that the trial court’s ruling prohibiting cross-examination on the pending charges of the three witnesses violated Evid.R. 616(A), which provides: “Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence.”

{¶ 104} The pendency of charges in another case or the witness’s plea arrangement with the prosecutor is admissible to prove the bias of the witness. State v. Brooks (1996), 75 Ohio St.3d 148, 152, 661 N.E.2d 1030; State v. Hector (1969), 19 Ohio St.2d 167, 48 O.O.2d 199, 249 N.E.2d 912, paragraph five of the syllabus (predates evidentiary rules); see 1 McCormick, Evidence (5th Ed.1999) 147, Section 39 (bias includes evidence that “an indictment is pending against [the witness], the witness has not been charged with a crime, has been promised leniency, * * * [or] is awaiting sentence”); see, also, Giannelli & Snyder, Evidence (2d Ed.2001) 562, Section 616.3. In Hector, we recognized, “[T]he testimony of [a prosecution] witness is or may be influenced by the expectation or hope that, by aiding in the conviction of the defendant, he might be * * * rewarded by leniency in the disposition of his own case.” 19 Ohio St.2d at 178, 48 O.O.2d 199, 249 N.E.2d 912.

{¶ 105} The trial court did not abuse its discretion by not permitting the defense to cross-examine Thomas about his pending drug charges. State v. Webb (Dec. 8, 1999), Summit App. No. 19318, 1999 WL 1215163, *1 (the trial court exercises broad discretion in the admission and exclusion of evidence under Evid.R. 616). The defense had been informed before Drummond’s trial that the charges against Thomas would eventually be dismissed because of the age of the charges and the lack of evidence. There was no evidence that Thomas was offered a plea bargain or any other inducement to testify. Thus, the pending drug charges were not relevant in proving his bias in testifying against Drummond. See State v. Gavin (1977), 51 Ohio App.2d 49, 54, 5 O.O.3d 168, 365 N.E.2d 1263 (“a stale charge is irrelevant to credibility because the element of pressure is not there”).

{¶ 106} The trial court also did not abuse its discretion by not allowing the defense to cross-examine Morris about the escape charge because those charges had already been dismissed. Thus, cross-examination about the dismissed charges would not have shown bias.

{¶ 107} The trial court should have permitted the defense to cross-examine Rozenblad about his pending charges, however. Rozenblad had been charged with trafficking in marijuana, and an indictment was pending on the charges. Rozenblad said that no deals had been reached in exchange for his testimony and that he did not expect to receive a benefit on the charges if he testified against Drummond. Nevertheless, if the defense had been permitted the opportunity to question Rozenblad about the pending charges, the jury could have tested his credibility. See State v. Durant, 159 Ohio App.3d 208, 2004-Ohio-6224, 823 N.E.2d 506, ¶ 34 (“Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test * * *” [Emphasis sic]).

{¶ 108} Nonetheless, we hold that any error in denying cross-examination of Rozenblad was harmless. The trial court allowed counsel to fully cross-examine Rozenblad about all aspects of his activities on the night of the murders. Rozenblad admitted that over a period of five hours on March 24, he had taken six Valium and had drunk six beers. He acknowledged during cross-examination that he did not get along with Drummond, although he had been friends with Brett Schroeder. Thus, the jury knew that Rozenblad’s perceptions on the night of the murder were affected by his drug and alcohol use. The jury also knew of motivations that might have influenced his testimony. See Brooks, 75 Ohio St.3d at 152, 661 N.E.2d 1030 (Evid.R. 616 violation resulted in harmless error where other concrete examples of the witness’s truthfulness, or lack thereof, and motivations that might have influenced his testimony were presented to the jury).

{¶ 109} Based on the foregoing, we overrule proposition II.

{¶ 110} Evidentiary and procedural issues. In proposition of law V, Drummond argues that the trial court erred by admitting expert testimony on gangs and evidence of gang activity. He also argues that the trial court erred by refusing to grant a mistrial after the state improperly elicited a prejudicial comment from a witness.

{¶ 111} 1. Expert testimony on gang-related activities. Detective Sergeant Michael Lambert testified that Drummond and Brett Schroeder were members of the Lincoln Knolls Crips. He also described the photo album found during the search of Drummond’s residence as a “gang book” because it included “pictures and any other significant events that affected the gang.” Lambert identified photos in the album of Drummond, Schroeder, and other gang members. He described a photo showing tattoos on Drummond’s back as showing “tombstones, guns, graffiti type stuff.” Lambert also described gang-related hand signals that Drummond was making in some of the photos. Finally, he stated that Drummond and Schroeder were called original gangsters because they were original members of the gang.

{¶ 112} Drummond asserts that expert testimony on gangs was irrelevant. We disagree. Gang affiliation can be relevant in cases in which the interrelationship between people is a central issue. United States v. Thomas (C.A.7, 1996), 86 F.3d 647, 652; United States v. Sloan (C.A.10, 1995), 65 F.3d 149, 151. As we discussed in proposition I, evidence relating to Drummond’s and Schroeder’s gang involvement was admissible to prove Drummond’s motive for firing shots into the Dent home. The evidence of the Lincoln Knolls Crips culture, symbols, hand gestures, and traditions provided the jury with crucial background information in considering the evidence. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 113.

{¶ 113} Drummond also argues that Lambert was not qualified as an expert witness and should not have been allowed to testify about gang-related activity. Under Evid.R. 702(B), an expert may be qualified by reason of his or her specialized knowledge, skill, experience, training, or education to give an opinion that will assist the jury in understanding the evidence and determining a fact at issue. Neither special education nor certification is necessary to confer expert status upon a witness. The individual offered as an expert need not have complete knowledge of the field in question, as long as the knowledge he or she possesses will aid the trier of fact in performing its fact-finding function. State v. Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128.

{¶ 114} Pursuant to Evid.R 104(A), the trial court determines whether an individual qualifies as an expert, and that determination will be overturned only for an abuse of discretion. State v. Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 446 N.E.2d 444.

{¶ 115} While the state never formally tendered Lambert as an expert, defense counsel never challenged his qualifications to testify and thus waived all but plain error. Crim.R. 52(B); Hartman, 93 Ohio St.3d at 286, 754 N.E.2d 1150. Here, there was no plain error.

{¶ 116} Lambert had worked in the gang unit for the Youngstown Police Department since 1999 and at the time of his testimony was in charge of the unit. Lambert gained his knowledge and experience about Youngstown gangs through investigating gang activities in the Youngstown area. Lambert’s testimony showed that he possessed specialized knowledge about gang symbols, cultures, and traditions beyond that of the trier of fact. See State v. Jefferson (Mar. 21, 2001), Summit App. No. 20156, 2001 WL 276343, *5; State v. Lewis (Apr. 4,1997), Greene App. No. 96 CA 12, 1997 WL 156596, *6-7. Thus, Lambert was qualified to testify as an expert about gang-related matters.

{¶ 117} Finally, relying on Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, Drummond claims that the trial court erred by failing to conduct a hearing on the reliability of Lambert’s testimony. However, Drummond never challenged the relevance and reliability of Lambert’s testimony and waived all but plain error. Crim.R. 52(B); State v. Biros (1997), 78 Ohio St.3d 426, 452, 678 N.E.2d 891.

{¶ 118} In Daubert, the United States Supreme Court held that under Fed. R.Evid. 702, the trial judge has a special obligation to ensure that scientific testimony is not only relevant but reliable. Daubert, 509 U.S. at 589-590, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469. In Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238, the United States Supreme Court extended this gate-keeping obligation to include all expert testimony — i.e., testimony based on technical and other specialized knowledge. The court added that in assessing reliability, the trial court may, at its discretion, consider the Daubert factors to the extent relevant. Id. at 148, 119 S.Ct. 1167, 143 L.Ed.2d 238.

{¶ 119} Without a defense objection, the trial court was not required to conduct a hearing to determine the relevance and reliability of Lambert’s testimony on gangs. In a similar case involving testimony by a police gang expert, the Ninth Circuit Court of Appeals held that the Daubert factors (peer review, publication, potential error rate, etc.) do not apply to this kind of testimony. The court recognized that unlike scientific testimony, expert testimony about gangs depends heavily on the expert’s knowledge and experience rather than on the expert’s methodology and theory. United States v. Hankey (C.A.9, 2000), 203 F.3d 1160, 1169.

{¶ 120} Nothing in Lambert’s testimony about gangs raises any reliability question. His testimony was based on his knowledge and experience with the Lincoln Knolls Crips and its members. Thus, the trial court committed no plain error by admitting Lambert’s testimony.

{¶ 121} 2. Gang-related evidence. Drummond renews his argument that the trial court erred by admitting evidence of his gang-related activity. However, as we discussed in proposition I, the trial court committed neither plain error nor prejudicial error in admitting gang-related evidence against Drummond.

{¶ 122} 3. Questioning of Dent. Drummond argues that the trial court erred by failing to grant a mistrial after the state asked a highly prejudicial question of Dent, the victim’s father. During redirect examination of Dent, the prosecutor asked:

{¶ 123} “Q: Mr. Gentile asked you a lot of questions. Do you think any of those questions that you were asked gives anyone permission to kill your son?

{¶ 124} “A: No.

{¶ 125} “Mr. Gentile: Objection, your Honor.

{¶ 126} “The Court: Sustained.

{¶ 127} “ * * *

{¶ 128} “The Court: The jurors are instructed to disregard the last question and answer.”

{¶ 129} The defense counsel’s motion for a mistrial because of the prosecutor’s question was overruled. The trial court also instructed the jurors to disregard stricken evidence “as though [they] never heard” it during final jury instructions.

{¶ 130} The trial court did not err by refusing to grant a mistrial. While the prosecutor’s question was improper, the trial court sustained the defense objection and immediately instructed the jury to disregard the testimony. Thus, the trial court’s actions cured the effect of improper testimony. State v. Heinish (1990), 50 Ohio St.3d 231, 241, 553 N.E.2d 1026 (“Where a jury is cautioned and a correction is given to the jury, the effect of improper evidence may be cured”).

{¶ 131} Moreover, “[m]istrials are necessary ‘only when the ends of justice so require and a fair trial is no longer possible.’ ” State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 105, quoting State v. Garner (1995), 74 Ohio St.3d 49, 59, 656 N.E.2d 623. Here, Dent’s isolated comment did not deny Drummond a fair trial.

{¶ 132} Accordingly, we reject proposition V.

{¶ 133} Due process claims. In proposition of law VI, Drummond argues that he was denied due process and a fair trial because the trial court (1) failed to record all sidebar discussions, (2) permitted the state to ask witnesses leading questions during direct examination, (3) allowed Detective Lambert to provide hearsay testimony, and (4) improperly admitted a 911 tape.

{¶ 134} 1. Unrecorded sidebar discussions. The record, including voir dire and both phases of the trial, reflects more than 130 unrecorded sidebar discussions. Drummond failed to object or ask that these sidebar discussions be recorded and thereby waived the issue. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 182; State v. Nields (2001), 93 Ohio St.3d 6, 26, 752 N.E.2d 859.

{¶ 135} “The requirement of a complete, full, and unabridged transcript in capital trials does not mean that the trial record must be perfect for purposes of appellate review.” State v. Palmer (1997), 80 Ohio St.3d 543, 687 N.E.2d 685, syllabus. We will not reverse because of unrecorded proceedings when the defendant failed to object and fails to demonstrate material prejudice. Id. at 554, 687 N.E.2d 685.

{¶ 136} Nothing in the record substantiates Drummond’s speculation that the unrecorded sidebar discussions dealt with substantial and important legal issues. Drummond has not shown, nor does the record reveal, that these conferences concerned matters vital to appellate review. See Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 184; Palmer, 80 Ohio St.3d at 554, 687 N.E.2d 685 (“prejudice will not be presumed from the mere existence of * * * unrecorded bench and chambers conferences in capital cases”). Based on the foregoing, we reject this claim.

{¶ 137} 2. Leading questions. Drummond complains that the trial court erred by permitting the prosecutor to ask leading questions of Rozenblad, Morris, and Walker on direct examination, but cites no specific instance where improper leading questions were asked. Except where noted, defense counsel did not object to leading questions asked of the three witnesses and thus waived all but plain error. See State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 190, 616 N.E.2d 909.

{¶ 138} A leading question is “one that suggests to the witness the answer desired by the examiner.” 1 McCormick, Evidence (5th Ed.1999) 19, Section 6. Under Evid.R. 611(C), “[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” However, the trial court has discretion to allow leading questions on direct examination. D'Ambrosio, 67 Ohio St.3d at 190, 616 N.E.2d 909.

{¶ 139} On direct examination, the prosecutor asked Morris the following questions about the date he first entered the Mahoning County jail:

{¶ 140} “Q: Do you remember when that was?

{¶ 141} “A: No.

{¶ 142} “Q: Could it have been in May of 2003?

{¶ 143} “[Defense Counsel] Mr. Gentile: Objection.

{¶ 144} “The Court: I’ll note your objection.

{¶ 145} “A: Okay. Yes.

{¶ 146} “The Court: Overruled.

{¶ 147} “ * * *

{¶ 148} “Q: Was it May when you overheard the conversations between Mr. Drummond and Mr. Walker?

{¶ 149} “A: Yes, sir.

{¶ 150} “Mr. Gentile: Objection.

{¶ 151} “The Court: I’ll note it. Overruled.”

{¶ 152} The first question merely directed Morris’s attention to the date that he had first entered the Mahoning County jail, which Morris had trouble remembering during earlier testimony. The prosecutor’s leading questions about the date oriented the witness to the time and moved the trial forward without unnecessary delay. The trial court did not abuse its discretion by permitting the question.

{¶ 153} The prosecutor’s question whether it was May when Morris overheard the conversations was inappropriate. However, during subsequent cross-examination, Morris pinpointed May 6, 2003, as the exact date that he overheard Drummond and Walker discussing the murder. This answer showed that Morris’s earlier response was not provided simply because of his susceptibility to the prosecutor’s suggestion about the date. Thus, no prejudicial error resulted.

{¶ 154} Additionally, the prosecutor asked Morris leading questions after Morris experienced some difficulty in testifying:

{¶ 155} “Q: You’re in a disciplinary pod?

{¶ 156} “A: Right. Right. Basically, yes, sir.

{¶ 157} “Q: Now the jury