State v. Davis (116 Ohio St. 3d 404, 2008)

O’Connor, J.

{¶ 1} During the late evening of July 10 or the early morning of July 11, 2000, an intruder entered 86-year-old Elizabeth Sheeler’s Newark, Ohio apartment. The intruder then murdered Sheeler by stabbing her in the neck and chest. The intruder stole money from the apartment and fled the scene.

{¶ 2} The murder went unsolved for almost four years. In 2004, DNA testing identified defendant-appellant, Roland T. Davis, as the murderer of Sheeler. Subsequently, Davis was convicted of the aggravated murder of Sheeler and sentenced to death.

{¶ 3} Davis now appeals, raising an array of challenges to his convictions and sentence. We determine that none of his propositions of law has merit and affirm Davis’s convictions. We have also independently weighed the aggravating circumstances against the mitigating factors and have compared Davis’s sentence of death to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm Davis’s sentence of death.

State’s Case

{¶ 4} Sheeler was a widow who lived alone in a basement apartment at the Plaza Garden Apartments. Sheeler frequently used Yellow Cab taxis for transportation to the grocery store, the bank, and other locations in Newark.

{¶ 5} Davis worked intermittently as a driver for Yellow Cab from 1995 until April 20, 2000. Sheeler often asked for Davis as her taxi driver because he helped Sheeler carry her groceries into her apartment. Yellow Cab records show that Davis provided Sheeler with taxi service on many occasions.

{¶ 6} Davis and Sharon Wright lived together off and on from 1994 until July or August 2000. Wright was a driver with Yellow Cab for about a year. During their relationship, Wright said that Davis “carried a few bucks in his pocket, but most of the time he was broke.” Davis was unemployed from June 2 to at least July 10, 2000.

{¶ 7} Davis lived with Terri Geer from late October or early November 1999 until mid-May 2000. Geer said that Davis “never had a lot of money” during that time.

{¶ 8} On the evening of July 10, 2000, Sheeler was at her apartment. Between 8:00 p.m. and 10:00 p.m., Sheeler and her close friend, Elladean Hicks, talked on the telephone. Hicks stated that nothing appeared to be out of the ordinary, and there was no indication that anyone else was at Sheeler’s apartment or that she was expecting anyone.

{¶ 9} Melissa Frost was Sheeler’s next-door neighbor. At approximately 12:30 a.m. on July 11, 2000, Frost noticed that a light was still on in Sheeler’s apartment. Frost also heard loud noise coming from the television in Sheeler’s apartment, which stopped sometime after 12:30 a.m.

{¶ 10} Frost did not see Sheeler for the next two days. Frost noticed that Sheeler’s front door was not ajar, an unusual circumstance because Sheeler had the habit of keeping the door slightly open during the day. On July 12, Frost noticed two newspapers outside Sheeler’s front door. Frost’s husband then knocked on Sheeler’s front door and called her name. He turned the doorknob and noticed it was unlocked. The Frosts then contacted the apartment manager.

{¶ 11} Kenneth Patterson, the co-owner of Plaza Garden Apartments, entered Sheeler’s apartment to check on her well-being. The living room, dining room, and kitchen looked normal. Patterson looked inside Sheeler’s bedroom and saw blood on the bed and a foot sticking out from underneath bedding on the floor. The police were then called.

{¶ 12} Around 1:30 p.m. on July 12, 2000, Newark police officers arrived at Sheeler’s apartment. Officers found Sheeler’s body on the floor next to her bed. Her body was covered by a mattress pad, mattress cover, fitted sheet, and comforter. Sheeler’s face had been battered, and her neck and chest area had numerous sharp-instrument wounds. Her dentures were found underneath the bed. Sheeler’s housecoat was open and bunched up under the middle of her back. Her panties were torn and cut in the crotch area and rolled up underneath her breasts.

{¶ 13} Detective Timothy Elliget, a Newark police criminalist, found blood spatter that formed a misting pattern above the dresser on the bedroom wall. This blood spatter showed that Sheeler was standing when she was hit in the mouth or throat area. Bloodstain patterns on the bedding indicated that Sheeler had been face down on the bed for a period of time. Elliget also found a bloodstain pattern on the fitted sheet, which was consistent with a blood-covered hand “grabbing the item and pulling [it] off.” Another bloodstain formed a butterfly pattern on the mattress pad, which was consistent with the wiping of an object such as a knife.

{¶ 14} Sheeler’s bedroom had been ransacked. Dresser drawers were on top of the mattress, a cedar chest had been opened, and items were scattered around the room. The spare bedroom had also been ransacked, with drawers opened and property strewn about.

{¶ 15} Several purses were found in both bedrooms but none of them contained a wallet, identification, pictures, or keys. Police did find $500 in an envelope on the floor of the spare bedroom, two metal boxes containing $2,300 in the closet of the spare bedroom, and $210 in silver certificates elsewhere in the same closet.

{¶ 16} Police found no evidence of forced entry. No knife or other possible murder weapon was found in the apartment. Investigators found 14 usable fingerprints and three usable palm prints. The fingerprints were later entered into the automated fingerprint identification system (“AFIS”), but no matches resulted.

{¶ 17} Police found a bloodstain on a small kitchen towel next to the kitchen sink. It “tested presumptive for blood” and was forwarded for DNA analysis.

{¶ 18} On July 13, 2000, Dr. Patrick Fardal, then the chief forensic pathologist for Franklin County, conducted the autopsy on Sheeler. Sheeler suffered blunt-force injuries to her face and 11 sharp wounds to her chin, neck, and upper chest area. Dr. Fardal found that a stab wound in Sheeler’s chest and a stab wound in her neck that injured the left jugular vein were fatal wounds. Sheeler probably would have lived no more than “10 to 20 minutes after sustaining these wounds.”

{¶ 19} In 2000, Ramen Tejwani, a criminalist with the Columbus police crime lab, tested evidence from Sheeler’s apartment. DNA analysis of the bloodstain on the kitchen towel did not match the DNA from Sheeler or other persons tested at that time. Additionally, presumptive testing of an oral swab taken from Sheeler showed the presence of semen. However, no useful DNA was extracted from the swab.

{¶ 20} In 2001, Tejwani retested the DNA on the towel’s bloodstain using the short tandem repeat (“STR”) method. This analysis showed that the DNA was from a male contributor.

{¶ 21} Nevertheless, the investigation moved into a cold-case status because there were few leads. On March 1, 2004, Davis became a suspect in the murder after Newark police obtained information from an out-of-state law enforcement agency.

{¶ 22} After investigation of Davis began, police learned that he had purchased a Mercury Grand Marquis on July 10, 2000. He had paid $300 in cash for the car and had agreed to make regular payments.

{¶ 23} Geer stated that after she had not seen Davis for a week or more, Davis showed up at her house on July 11, 2000, driving the Grand Marquis. On the same day, Davis bought Geer’s son a drum set with $1,253.98 in cash. Davis also offered to purchase Geer “anything [she] wanted that night.”

{¶ 24} Wright had no contact with Davis on July 10 or July 11, 2000. However, on July 12, 2000, Davis drove the Grand Marquis to Wright’s home. Davis said that he had obtained the money to pay for the car by “running drugs from Florida to Ohio.” On July 13, Davis took Wright’s daughter to a Columbus mall and bought her a $100 pair of tennis shoes and a car stereo, and he took her to dinner. On July 16 or 17, Davis and Wright drove to Florida and returned to Ohio about a week later.

{¶ 25} After Davis became a suspect, police obtained a DNA sample from him and sent it to the Columbus police crime lab. Analysis showed that Davis’s DNA matched the DNA from the bloodstain on the kitchen towel. According to Tejwani, the approximate frequency of this DNA type in the population is one in 547.000. 000 for Caucasians, one in 332,400,000,000 for African-Americans, one in 1.939.000. 000 for southeastern Hispanics, and one in 2,816,000,000 for southwestern Hispanics. Davis is Caucasian.

{¶ 26} Following receipt of the DNA results, Newark detectives Stephen Vanoy and Melanie Mummey interviewed Davis in Florida, where he was living. After Davis waived his Miranda rights, he was shown a photograph of Sheeler. He said that she looked familiar, but he did not remember her name. Davis denied seeing Sheeler’s photograph on reward posters following her death. He said, “I didn’t know she got killed, [until] you just told me.” Davis also did not remember ever going into Sheeler’s apartment.

{¶ 27} Vanoy told Davis that his DNA was found in Sheeler’s apartment. When asked for an explanation, Davis said there was no reason his semen or blood could be in her apartment. However, Davis said that he might have pricked his finger or left a hair in Sheeler’s apartment when carrying her groceries.

{¶28} As the interview progressed, Davis said, “I’m putting a face with a person * * Davis had just said that he had provided taxi service to Sheeler and “liked her a whole lot.” Davis also said that Sheeler had shown him around her apartment. As a result, he might have touched a doorknob. However, he denied entering the kitchen and touching any of her towels “or anything like that.”

{¶ 29} Davis told police that he obtained the money to buy the drum set and the Grand Marquis by taking “a load of Cocaine [to] * * * Elkhart, Indiana.” Davis said he delivered $40,000 worth of cocaine and made $10,000. However, he refused to divulge the name of his supplier.

{¶ 30} Before the interview ended, Davis described his trips to Sheeler’s apartment when he provided her taxi service. Davis said he would knock on her door, wait inside her apartment as she was getting ready, lock the door when they left, and escort her to his taxi by holding her arm. However, Davis said that he had not been in Sheeler’s apartment since he quit driving a cab. Davis denied killing Sheeler and said, “I didn’t do it at all!!”

{¶ 31} Later, Vanoy reinterviewed Davis. After waiving his Miranda rights, Davis continued to deny any involvement in Sheeler’s murder. However, Davis admitted lying about knowing Sheeler, saying, “[Y]ou guys were trying to pin a murder on me.”

{¶ 32} In late 2004, Susan Fowls, a former employee of Annie’s Place restaurant in Newark, saw a photograph of Davis in a newspaper article about his arrest. Fowls remembered that during the late spring or early summer of 2003, Davis had entered the restaurant and had asked about Sheeler’s murder after noticing a reward poster that displayed Sheeler’s photograph inside the restaurant. According to Fowls, Davis repeatedly asked her, “Did they have any leads[?] Do they know who did it[?] Do the police have any suspects[?]”

{¶ 33} Terianne Paxson, the restaurant’s owner, also talked to Davis about Sheeler’s murder. Davis thought that Sheeler used to be his neighbor, and he could not believe that someone would murder her. He asked Paxson if she knew whether Sheeler had been sexually assaulted. After Davis left the restaurant, Paxson wrote down his license number, but she did not notify police until after his photograph appeared in the newspaper.

{¶ 34} During September 2004, DNA analysis using Y-chromosome testing was conducted on the bloodstained fitted sheet from Sheeler’s bedroom. According to Meghan Clement, the technical director for forensic identity testing at Laboratory Corporation of America Holdings, Inc. (“LabCorp”), three bloodstains matched Davis’s DNA profile.

{¶ 35} Further DNA analysis using autosomal STR testing was conducted on two of the bloodstains from the fitted sheet. Clement testified, “The profiles that were obtained from both samples were consistent with a mixture. * * * In looking at the profiles, we could not exclude Mr. Davis as a contributor to either of those particular mixtures. And for specifically [one location], * * * the male was the major contributor * * * and those [major characteristics in the DNA mixture] indeed matched Mr. Davis.” The statistical frequency of that DNA’s presence is one in 97.1 quadrillion in the Caucasian population, one in 2.62 sextillion in the African-American population, and one in 1.23 quintillion in the Hispanic population.

{¶ 36} During October 2004, Richard Hummel and Davis were in the orientation module at the Licking County jail. Hummel testified that one day, he told Davis, “[C]heer up, they can’t eat you, man.” Davis responded, “Oh no, I did it.” Davis then explained that he got to know the victim when he was driving a cab and helped her carry groceries and performed other jobs for her. Davis said he “stabbed her five, seven times or so.”

Defense Case

{¶ 37} The defense presented the stipulated testimony of Dr. C. Jeff Lee, the Deputy Coroner for Licking County. Dr. Lee performed the autopsy on Randy L. Davis, the defendant’s brother, who had died in an automobile accident on November 26, 2002. Dr. Lee stated that a sample of Randy’s blood had been collected and preserved and was available at the coroner’s office.

{¶ 38} The defense presented no other trial-phase evidence.

Case History

{¶ 39} The grand jury indicted Davis on one count of aggravated murder. Count 1 charged Davis with the aggravated murder of Sheeler while committing kidnapping, aggravated robbery, or aggravated burglary. Count 1 contained four death-penalty specifications: murder for the purpose of escaping detection, apprehension, trial, or punishment, R.C. 2929.04(A)(3); murder while committing, attempting to commit, or fleeing after committing kidnapping, R.C. 2929.04(A)(7); murder while committing, attempting to commit, or fleeing after committing aggravated robbery, R.C. 2929.04(A)(7); and murder while committing, attempting to commit, or fleeing after committing aggravated burglary, R.C. 2929.04(A)(7).

{¶ 40} Davis was charged with four additional counts: Count 2 charged Davis with murder, Count 3 charged kidnapping, Count 4 charged aggravated robbery, and Count 5 charged aggravated burglary.

{¶ 41} Davis pleaded not guilty to all charges. The jury found him guilty of all charges, and he was sentenced to death.

Pretrial and Trial Issues

{¶ 42} Jury selection. In proposition of law I, Davis asserts that he was denied a fair and impartial jury.

{¶ 43} 1. Denial of careful and searching voir dire. First, Davis argues that he was denied a careful and searching voir dire about pretrial publicity. Davis also claims that his counsel were ineffective by failing to fully question jurors about pretrial publicity.

{¶ 44} “The manner in which voir dire is to be conducted lies within the sound discretion of the trial judge.” State v. Lorraine (1993), 66 Ohio St.3d 414, 418, 613 N.E.2d 212. A trial court has “ ‘great latitude in deciding what questions should be asked on voir dire.’ ” State v. Wilson (1996), 74 Ohio St.3d 381, 386, 659 N.E.2d 292, quoting Mu’Min v. Virginia (1991), 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493. Absent a clear abuse of discretion, prejudicial error cannot be assigned to the examination of the venire. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 28.

{¶ 45} The record shows that the voir dire on pretrial publicity was comprehensive. The trial court asked the prospective jurors whether any of them knew about the case through firsthand information or media coverage. The trial court then asked prospective jurors who had indicated some familiarity with the case whether they could lay aside what they had heard and decide the case solely upon the evidence presented at trial. Counsel were then given the opportunity to fully question the prospective jurors about their exposure to pretrial publicity. Following thorough questioning, the trial court excused members of the venire who had formed fixed opinions due to pretrial publicity or were otherwise unsuitable.

{¶ 46} Davis’s ineffectiveness claim also lacks merit. Reversal of a conviction for ineffective assistance of counsel requires that the defendant show, first, that counsel’s performance was deficient and second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.

{¶ 47} Trial counsel questioned the prospective jurors about pretrial publicity after the trial court and the prosecutor had finished examining them about the same matter. Trial counsel’s questioning about pretrial publicity was brief. However, trial counsel were not deficient, because counsel “need not repeat questions about topics already covered by group voir dire, opposing counsel, or the judge.” State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97.

{¶ 48} Second, Davis contends that he was entitled to a change of venue because of pervasive pretrial publicity. However, trial counsel waived this issue by failing to request a change of venue. State v. Campbell (2000), 90 Ohio St.3d 320, 336, 738 N.E.2d 1178.

{¶ 49} Davis also claims that his counsel were ineffective by failing to request a change of venue. Trial counsel’s failure to request a change of venue is not tantamount to ineffective assistance of counsel. As previously discussed, the voir dire about pretrial publicity was adequate. Thus, counsel could have reasonably decided not to request a change of venue. See State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 156. Moreover, a change of venue is not automatically granted when there is pretrial publicity. Any decision to change venue rests largely within the discretion of the trial judge. See State v. White (1998), 82 Ohio St.3d 16, 25, 693 N.E.2d 772. Accordingly, this claim lacks merit.

{¶ 50} We also reject Davis’s assertion that his counsel were ineffective by failing to develop the record about the level of pretrial publicity in his case. The trial court was well aware of the extent of pretrial publicity because many prospective jurors acknowledged that they had heard something about the case. Thus, Davis has failed to show how trial counsel’s failure to submit newspaper clippings and other media stories was prejudicial.

{¶ 51} Third, Davis argues that the trial court and counsel failed to adequately question prospective jurors to develop challenges for cause or exercise peremptory challenges. However, Davis fails to explain the additional information that should have been obtained. Thus, this claim lacks merit.

{¶ 52} Finally, Davis complains that the trial court required counsel to conduct voir dire after regular court hours. Before concluding voir dire, the trial court informed counsel, “I’m inclined to finish this group. * * * We have two more sets of six. Generally get those done tonight and come back in the morning and start.” The court completed voir dire and recessed at 6:30 p.m.

{¶ 53} Davis argues that the voir dire examination conducted late in the day became increasingly incoherent because counsel were tired. The prosecutor remarked, “I’m getting punchy. * * * It’s 25 ’til six.” Davis also points out that his trial counsel’s voir dire of the last group of jurors comprised only three and one-half pages of the transcript.

{¶ 54} “The scope of voir dire is within the trial court’s discretion and varies depending on the circumstances of each case.” State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913. The trial court’s action ensured the orderly flow of the case and did not constitute an abuse of discretion. Moreover, Davis suffered no prejudice, because none of the prospective jurors questioned after hours actually served on the jury.

{¶ 55} 2. Standard for excusing jurors. Davis argues that the trial court erred in applying the standard set forth in Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, instead of the standard in R.C. 2945.25(C), in excusing prospective jurors who expressed reservations about capital punishment. However, Witt enunciates the correct standard for determining when a prospective juror may be excluded for cause based on his or her opposition to the death penalty. See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus. Moreover, Davis’s claim that his counsel were ineffective by failing to object lacks merit, because the Witt standard was properly applied.

{¶ 56} 3. Examination of death-penalty-opposed jurors. Davis contends that trial counsel failed to fully question and rehabilitate prospective jurors who said they opposed the death penalty and that counsel failed to object to the state’s challenge of these jurors.

{¶ 57} Davis cites five veniremen whom counsel should have rehabilitated: Spearman, Smith, Barsky, Hanson, and Harden. During voir dire, all of these jurors stated they were opposed to the death penalty and could not sign a death verdict. Trial counsel did not object to the challenge of Spearman but did object to the challenge of the other four jurors. The trial court excused all five jurors.

{¶ 58} Trial counsel attempted to rehabilitate each of the jurors before they were excused. We reject Davis’s claim that counsel should have asked these jurors more questions, because counsel were in the best position to determine whether the jurors could be rehabilitated. See State v. Jones (2000), 90 Ohio St.3d 403, 410-411, 739 N.E.2d 300. Moreover, trial counsel were not ineffective by failing to object to the exclusion of Spearman, because she clearly stated her unwillingness to sign a death verdict.

{¶ 59} 4. Failure to voir dire regarding mitigating evidence. First, Davis argues that the trial court refused to permit counsel to fully examine prospective jurors about mitigating evidence. Consequently, the selected jurors would be likely to “automatically vote for the death penalty and * * * would not consider mitigating evidence.” This claim lacks merit because trial counsel were given extensive leeway to examine prospective jurors regarding their willingness to consider mitigating evidence.

{¶ 60} Second, Davis argues that jurors Marston and Cronin were not fully questioned about whether they could fairly consider mitigating evidence and impose a life sentence. Davis also claims that counsel’s inadequate voir dire resulted in the failure to develop a successful challenge for cause against them.

{¶ 61} “The conduct of voir dire by defense counsel does not have to take a particular form, nor do specific questions have to be asked.” State v. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042. “[CJounsel is in the best position to determine whether any potential juror should be questioned and to what extent.” State v. Murphy (2001), 91 Ohio St.3d 516, 539, 747 N.E.2d 765.

{¶ 62} During voir dire, juror Marston stated his belief that all people convicted of intentionally killing another person should face the death penalty. Trial counsel tested juror Marston’s willingness to consider mitigating evidence by asking him whether the same crime committed by two separate people with different backgrounds had mitigating features. Juror Marston replied, “[Sjame crime, same penalty.” During further questioning, juror Marston expressed his willingness to follow the law, evaluate mitigating factors, and consider all four sentencing options. Trial counsel challenged juror Marston for cause, but the trial court denied the challenge.

{¶ 63} Trial counsel were not deficient in questioning juror Marston. Counsel asked probing questions about fairly considering mitigating evidence and all lesser sentencing options. Moreover, counsel had no basis to challenge juror Marston for cause, because Marston expressed his willingness to consider the mitigating evidence and all four sentencing options. See Morgan v. Illinois (1992), 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492; State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 37.

{¶ 64} We also reject Davis’s claim that counsel failed to fully question juror Cronin and challenge her for cause. During voir dire, juror Cronin expressed the view that identical crimes deserve identical punishment, regardless of the social backgrounds of the perpetrators. However, trial counsel questioned juror Cronin about her willingness to consider various mitigating evidence. Juror Cronin stated that she would consider the mitigating evidence and all potential sentencing options. Thus, counsel had no basis to challenge juror Cronin for cause.

{¶ 65} Finally, Davis claims that the court and trial counsel failed to question the jurors about whether they could consider mitigating evidence and impose a life sentence even though the victim was an elderly woman murdered in her own home.

{¶ 66} Davis invokes State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 60-62, in making this argument. Jackson held that a “trial court abused its discretion by refusing defense counsel’s requests to advise prospective jurors that one of the murdered victims was a three-year-old child and by refusing to allow voir dire on that fact.” (Emphasis added.) Id. at ¶ 62. However, Jackson does not apply to this case, because trial counsel never sought to question the jurors about their views on imposing the death penalty when the victim was an elderly woman. Counsel’s decision to forgo this line of questioning constituted a legitimate tactical decision. See State v. Keith (1997), 79 Ohio St.3d 514, 521, 684 N.E.2d 47. Indeed, counsel could have decided not to question the jurors about the victim’s elderly status to avoid focusing the jury’s attention on this issue at the very beginning of its case.

{¶ 67} We also hold that the trial court was not required to sua sponte question the jurors about the victim’s elderly status because counsel failed to do so. See Turner v. Murray (1986), 476 U.S. 28, 37, 106 S.Ct. 1683, 90 L.Ed.2d 27, fn. 10.

{¶ 68} 5. Misleading statements. Davis contends that the prosecutor committed misconduct by making misleading statements during voir dire. However, the defense failed to object to these statements and waived all but plain error. State v. Lundgren (1995), 73 Ohio St.3d 474, 484, 653 N.E.2d 304. In the alternative, Davis argues that his counsel were ineffective by failing to object to these remarks.

{¶ 69} First, Davis argues that the prosecutor improperly told the jurors that they could determine what evidence was mitigating. The prosecutor informed the prospective jurors that it was their duty to determine the assessment and weight to be given mitigating evidence. The prosecutor’s statements correctly summarized the law on mitigation. See State v. Jones (2001), 91 Ohio St.3d 335, 352, 744 N.E.2d 1163. Thus, no plain error was committed, and counsel were not ineffective by failing to object.

(¶ 70} Second, Davis claims that the prosecutor’s voir dire was misleading because he asked questions about mitigating factors that did not apply to this case. During small-group voir dire, the prosecutor posed a hypothetical question about two men committing a murder at a convenience store. The hypothetical contrasted a young defendant from a disadvantaged background with an older defendant from a good family and with many opportunities. The hypothetical tested the willingness of the prospective jurors to consider mitigating evidence. The prosecutor’s questions were not misleading because the jurors knew they were being asked hypothetical questions. See State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, ¶ 132.

{¶ 71} Davis also argues that the prosecutor’s use of the hypothetical was prejudicial because the prosecutor later used the hypothetical during final argument. During penalty-phase arguments, the prosecutor mentioned the hypothetical situation as a means of explaining that the jury should give little weight to Davis’s background. However, this argument was not improper. State v. Wilson, 74 Ohio St.3d at 399, 659 N.E.2d 292.

{¶ 72} Third, Davis claims that the prosecutor misled the prospective jurors by informing them that any sentencing verdict would have to be unanimous. The prosecutor’s comments accurately stated the law. See State v. Nields (2001), 93 Ohio St.3d 6, 30, 752 N.E.2d 859. Thus, no plain error was committed, and trial counsel were not deficient by failing to object.

{¶ 73} 6. Failure to excuse jurors. Davis also complains that he was denied a fair and impartial jury because many of the jurors knew too much about the crime, the victim, or Davis and his family.

{¶ 74} Davis fails to mention any specific juror who should have been excused. However, prospective jurors who indicated some familiarity with the crime, the victim, or the witnesses were identified. Following thorough questioning, the trial court excused members of the venire who had formed a fixed opinion about the case or indicated an association with the victim or the witnesses that made them unsuitable to serve on the jury. This claim lacks merit.

{¶ 75} 7. Commitment to sign death verdict. Davis argues that the prosecutor and trial court improperly sought commitments from the prospective jurors to sign a death verdict. However, the defense failed to object to such questions and waived all but plain error. State v. Lundgren, 73 Ohio St.3d at 484, 653 N.E.2d 304. Alternatively, Davis argues that his counsel were ineffective by failing to object to such remarks.

{¶ 76} During voir dire, the prosecutor asked some prospective jurors whether they would be able to sign a death verdict if the accused were to be convicted as charged and if the aggravating circumstances were found to outweigh the mitigating factors. Such questioning was proper because the relevant inquiry during voir dire in a capital case is whether the juror’s beliefs would prevent or substantially impair his or her performance of duties as a juror in accordance with the instructions and the oath. Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. 844, 83 L.Ed.2d 841. “Clearly, a juror who is incapable of signing a death verdict demonstrates substantial impairment in his ability to fulfill his duties.” State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 34.

{¶ 77} Davis also claims error because the prospective jurors were not asked whether they would be able to sign a life verdict. “There is no requirement for a trial court to ‘life qualify’ any prospective juror, absent a request by defense counsel, in a capital murder case.” State v. Stojetz (1999), 84 Ohio St.3d 452, 705 N.E.2d 329, syllabus. No plain error occurred, because the defense made no such request. Moreover, Davis’s ineffectiveness claim lacks merit because he has failed to show that his counsel were ineffective by failing to object to the state’s questions or by failing to request that the jurors be life qualified.

{¶ 78} 8. Failure to question juror about an outside influence. Davis argues that he was denied a fair trial because the trial court and counsel failed to question juror Wallace after learning that she had been fired from her job for serving on the jury.

{¶ 79} Following voir dire, juror Wallace told the bailiff that she had received some pressure from her employer to get off the jury. The trial court informed counsel that Wallace, a cook at Applebee’s, was told to wear white-supremacist clothing or lie about certain answers to avoid jury duty. Wallace told her employer that she was not going to lie or do anything wrong. She also called the corporate office to report her boss. The prosecutor asked whether the pressure would affect Wallace’s behavior on the jury. The trial court said, “No. In fact, she indicated just the opposite. She felt that she couldn’t do those things. She told us she’s not a liar, she’s not going to take any steps like that. * * * [Y]ou saw her yesterday, all the jurors * * * [take] their obligation seriously and I felt were honest * * Both counsel stated that further voir dire of Wallace was unnecessary.

{¶ 80} On the next day, the trial court informed counsel that juror Wallace reported that she had been fired after telling her boss that she had been selected as a juror. Juror Wallace said she had “talked to the boss’ boss who told her all the right things; you’re on the payroll; * * * you’re going to get paid; do your duty, and after you’re done, come talk to me and we’ll take care of it then.” Trial counsel said, “I was kind of led to believe that she’s okay with all of this.” The trial court said, “That’s the impression I certainly received, too. In fact, I think the owner’s position has been just what you would hope it would be, and he seems to be supportive of her * * *. [T]hey seem to have that under control and she seems to be in a fine state of mind, too.” Both counsel declined to conduct any further voir dire of juror Wallace.

{¶ 81} In cases involving outside influences on jurors, trial courts are granted broad discretion in dealing with the contact and determining whether to declare a mistrial or to replace an affected juror. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 191. A trial court is permitted to rely on a juror’s testimony in determining that juror’s impartiality. State v. Herring (2002), 94 Ohio St.3d 246, 259, 762 N.E.2d 940. Juror Wallace assured the court that her job situation would not affect her ability to serve as a juror. Counsel were obviously convinced that juror Wallace could remain a fair and impartial juror. Thus, the trial court and counsel could allow juror Wallace to remain on the jury without conducting further inquiry.

{¶ 82} Based on the foregoing, we overrule proposition I.

{¶ 83} Tape recordings and transcript. In proposition of law II, Davis argues that the admission of his tape-recorded statements without identification or authentication violated his right to a fair trial. Davis further argues that his counsel were ineffective by failing to object to the lack of authentication or identification of the tape recordings.

{¶ 84} The tape recordings of Detective Vanoy’s first interview of Davis were not played during the trial. Without defense objection, the tape recordings of the interview and a transcript of the tape were admitted into evidence. The tape recordings and the transcript were supplied to the jury during deliberations at both phases of the trial. The trial court instructed the jury during both phases:

{¶ 85} “[Y]ou will receive as an exhibit two tape recordings identified as being a portion of the statement the Defendant gave to Newark police officers. The portion on these tapes are those sections of the Defendant’s statement that the parties have jointly agreed to admit into evidence.” (Emphasis added.)

{¶ 86} Davis’s failure to object to the tape recordings waived all but plain error. State v. Dmmmond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 187 (failure to object to 911 tape waived claims of lack of authenticity). He also agreed to admit the tapes without objecting to their authenticity. Thus, Davis invited any error and may not “take advantage of an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph one of the syllabus.

{¶ 87} We reject Davis’s claim on the basis of plain error and invited error. The parties’ agreement to admit the tape recordings into evidence eliminated the need to authenticate the tapes before they were introduced into evidence, as Evid.R. 901(B)(5) requires. See also State v. McGuire (1997), 80 Ohio St.3d 390, 396, 686 N.E.2d 1112 (“Sending properly admitted evidence into jury deliberations rests within the sound discretion of the trial judge”).

{¶ 88} We also reject Davis’s ineffectiveness claim. In his statement, Davis adamantly denied any responsibility for Sheeler’s death. By introducing the tapes, counsel had the benefit of presenting Davis’s proclamations of innocence to the jury, without the risk of having Davis take the stand. See State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 34. Thus, trial counsel made a tactical decision by agreeing to introduce Davis’s tape-recorded statement. We overrule proposition II.

{¶ 89} In proposition of law III, Davis argues that the failure to play the tape recordings in open court violated his right to be present at all stages of his criminal trial and violated his right to a public trial. He also claims that the admission of the transcript of the tape recording violated the “best evidence” rule. In the alternative, Davis argues that his counsel were ineffective by failing to object.

{¶ 90} 1. Right to be present. An accused has a fundamental right to be present at all stages of his criminal trial. Section 10, Article I, Ohio Constitution; Crim.R. 43(A). An accused’s absence, however, does not necessarily result in prejudicial or constitutional error. “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder v. Massachusetts (1934), 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674, overruled on other grounds, Duncan v. Louisiana (1968), 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491, and Malloy v. Hogan (1964), 378 U.S. 1, 2, 84 S.Ct. 1489, 12 L.Ed.2d 653, fn. 1. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 50.

{¶ 91} Davis waived this claim by failing to object to the admission of the tapes without playing them in open court. See State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 122. Moreover, Davis’s right to be present was not violated. He was present in court when the tape recording and transcript were offered and admitted into evidence. He could review the verbatim transcript of the tapes when the tapes were admitted.

{¶ 92} Davis claims that waiver does not apply because he did not personally waive his right to be present on the record, and the trial court did not find that such waiver was knowingly and intelligently made. However, we hold that the trial court was not required to conduct a colloquy on the record to establish a knowing waiver of Davis’s right to be present. United States v. Riddle (C.A.6, 2001), 249 F.3d 529, 534. We reject this claim.

{¶ 93} 2. Right to a public trial. Davis claims that his right to a public trial was violated because the tape recording of his interview was not played in open court. However, the trial court never closed the courtroom during the trial. Vanoy testified about his interview of Davis, and the tape recording and transcript of that interview were introduced in open court. Moreover, Davis’s failure to object constitutes a waiver of his right to have the tapes played in open court. See Levine v. United States (1960), 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989; State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 59. We also reject this claim.

{¶ 94} 3. Use of the transcript. Davis argues that the admission of the transcript violated the “best evidence” rule, Evid.R. 1002. He claims that the best evidence of the content of the tape was the tape itself.

{¶ 95} Davis’s failure to object to the admission of the transcript waived all but plain error. See State v. Kehoe (1999), 133 Ohio App.3d 591, 605, 729 N.E.2d 431. Moreover, Davis agreed to admit the transcript, without objecting that it was not the best evidence. Davis may not take advantage of “invited error” by now claiming that the transcript violated Evid.R. 1002. Hal Ariz Lincoln-Mercury, Inc., 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph one of the syllabus.

{¶ 96} We reject this claim on the basis of plain error and invited error. This claim also lacks merit. The transcript was provided to the jury as a listening aid. See State v. Mason (1998), 82 Ohio St.3d 144, 159, 694 N.E.2d 932. Davis’s claim that the jury may have relied solely on the transcript during deliberations is purely speculative. The trial court carefully instructed the jury during both phases:

{¶ 97} “In addition to these tapes, you will receive a transcript of these tapes. However, the transcript is not evidence, only the tapes are. The transcript is intended only as an aid. In the event you feel there is any discrepancy between what is actually said on the tape and what the transcript says, you must rely upon the tapes themselves.”

{¶ 98} Further, the defense never challenged the accuracy of the transcript at trial. “Where there are no ‘material differences’ between a tape admitted into evidence and a transcript given to the jury as a listening aid, there is no prejudicial error.” State v. Waddy (1992), 63 Ohio St.3d 424, 445, 588 N.E.2d 819.

{¶ 99} We also reject Davis’s ineffectiveness claim because of counsel’s tactical decision to permit the introduction of the tapes and the transcript. Based on the foregoing, we overrule proposition III.

{¶ 100} Gruesome photographs. In proposition of law IV, Davis argues that the trial court erred in admitting gruesome autopsy and crime-scene photographs during both phases of the trial.

{¶ 101} In capital cases, nonrepetitive photographs, even if gruesome, are admissible as long as the probative value of each photograph outweighs the danger of material prejudice to the accused. State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. Decisions on the admissibility of photographs are “left to the sound discretion of the trial court.” State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916.

{¶ 102} 1. Crime-scene photographs. Davis complains about five gruesome crime-scene photographs that the defense objected to at trial. Davis claims that the photographs were cumulative and introduced to inflame the jury.

{¶ 103} State’s exhibit 4-X shows Sheeler’s body as she was found on the bedroom floor after the sheets and bedspread were removed from her body. State’s exhibit 4-X was relevant in showing the position of Sheeler’s body at the crime scene. See State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 85.

{¶ 104} State’s exhibit 4-V shows that Sheeler’s panties had been removed. This photo supported the state’s theory that Davis kidnapped Sheeler for the purpose of engaging in sexual activity.

{¶ 105} State’s exhibit 4-Y is a photograph of Sheeler’s upper chest area showing numerous sharp instrument wounds on her neck and chest area. This photograph also shows a blood trail leading from the victim’s head and running down her chest. State’s exhibit 4-Y supported Detective Elliget’s testimony that the blood trail showed that Sheeler was standing when she was attacked and then later ended up on her back.

{¶ 106} State’s exhibit 4-N shows bloodstained bedding covering the victim’s foot and hand. State’s exhibit 4-0 is a distant shot taken across the bedroom showing some bloodstained bedding. State’s exhibits 4-N and 4-0 are not gruesome photographs but show that Sheeler’s bedroom had been ransacked after she was killed.

{¶ 107} We hold that the trial court did not abuse its discretion in admitting these few selected photographs. State’s exhibits 4-V, 4-X, and 4-Y, although gruesome, were probative of Davis’s intent and the manner and circumstances of Sheeler’s death. See State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 92.

{¶ 108} 2. Autopsy photographs. Davis argues that the trial court erred in admitting 12 autopsy photographs that the defense objected to at trial. State’s exhibit 7-B depicts Sheeler’s body prior to the autopsy and shows extensive wounds to her head and face. State’s exhibits 7-E and 7-F are photographs showing that Sheeler received blunt-force injuries to her face and a sharp-injury wound to the left side of her neck. These photographs illustrated Dr. Fardal’s testimony and provided an overall perspective of the victim’s wounds.

{¶ 109} State’s exhibit 7-C depicts marbling and skin slippage on Sheeler’s face. This photograph supported Dr. Fardal’s conclusion that Sheeler was killed two to three days before the autopsy was conducted. State’s exhibit 7-D shows Sheeler’s bruised lips, bruised and lacerated tongue, and toothlessness. This photograph supported Dr. Fardal’s testimony that Sheeler could have lost her dentures as a result of her attack.

{¶ 110} State’s exhibits 7-G and 7-J focus on different sharp-injury wounds on Sheeler’s neck. Dr. Fardal testified that these wounds are consistent with a knife being held underneath Sheeler’s chin. State’s exhibits 7-H and 7-1 depict different sharp-injury wounds to Sheeler’s upper trunk. Each photograph has a ruler showing the length of the separate injuries. These exhibits supported Dr. Fardal’s conclusion that a single-edged knife caused these wounds.

{¶ 111} State’s exhibit 7-L shows a hemorrhage in the temporalis muscle and an injury in the frontal scalp area caused by two points of impact. State’s exhibit 7-M shows a hemorrhage to the back part of her head caused by a separate impact. Using these photographs, Dr. Fardal testified that Sheeler did not suffer a fatal brain injury but may have received a concussion resulting in a loss of consciousness.

{¶ 112} Finally, state’s exhibit 7-K depicts the victim’s trachea and esophagus and shows that blood was aspirated into her trachea. This photograph supported Elliget’s testimony that blood spatter on the bedroom wall shows that Sheeler was standing when hit in the head.

{¶ 113} We hold that the trial court did not abuse its discretion in admitting the autopsy photographs. The autopsy photographs were limited in number, noncumulative, and had substantial probative value. Each of these photographs supported Dr. Fardal’s testimony and demonstrated Davis’s intent to murder Sheeler. See Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 90.

{¶ 114} 3. Gruesome photographs during the penalty phase. During the penalty phase, no autopsy photographs were admitted into evidence. The trial court admitted, over defense objection, state’s exhibits 4-V, 4-X, and 4-Y. However, a trial court may properly allow repetition of much or all that occurred in the guilt phase, pursuant to R.C. 2929.03(D)(1). State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542. The trial court did not abuse its discretion by admitting these photographs. The trial court also committed no plain error in admitting, without objection, two nongruesome photographs, state’s exhibits 4-N and 4-0.

{¶ 115} Based on the foregoing, we overrule proposition IV.

{¶ 116} Detective Vanoy’s testimony. In proposition of law V, Davis claims that Newark police detective Vanoy improperly testified about the investigation and his interviews of Davis. However, except where noted, Davis failed to object 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. Additionally, Davis argues that his counsel were ineffective by failing to object to Vanoy’s testimony.

{¶ 117} First, Davis argues that Vanoy improperly testified that Davis became a suspect in Sheeler’s murder after the police received a tip. Vanoy testified that on March 1, 2004, he received information from an out-of-state law enforcement agency that made Davis a suspect in Sheeler’s murder. This testimony was offered to explain Vanoy’s actions in opening the investigation. It was not hearsay, as it was not offered to prove the truth of the matter asserted. State v. Thomas (1980), 61 Ohio St.2d 223, 232, 15 O.O.3d 234, 400 N.E.2d 401. Vanoy’s reasons for opening the investigation were relevant and helped provide the foundation for his subsequent testimony. No plain error occurred.

{¶ 118} Second, Davis argues that Vanoy improperly testified about Davis’s reaction during the interview when he was shown Sheeler’s photograph and Sheeler’s name was mentioned. Vanoy described Davis’s response after he was shown Sheeler’s photograph for the first time: “Yeah, she kind of looks kind of familiar. Not really sure. She may have requested me before. Just was very non-committal, very wishy washy about it.” Vanoy also described Davis’s reaction when he told Davis that the photograph was Elizabeth Sheeler: “[H]e was kind of playing around with the name a little bit as if he didn’t even know who— he wasn’t putting the face with the name.”

{¶ 119} Evid.R. 701, which governs opinion testimony by lay witnesses, provides: “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”

{¶ 120} Vanoy’s testimony satisfied both requirements of Evid.R. 701. Vanoy observed Davis’s demeanor, and Davis’s reaction was relevant in showing his evasiveness. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 125 (detective’s testimony about defendant’s reaction to the news of his wife’s murder admissible as lay opinion); State v. Stojetz, 84 Ohio St.3d at 463, 705 N.E.2d 329 (testimony that witness appeared “scared” and “not able to think” admissible as lay opinion). Thus, Vanoy’s testimony did not result in plain error.

(¶ 121} Third, Davis argues that Vanoy improperly expressed his opinion that Davis had lied during his first and second interview. Vanoy returned to Newark after completing his first interview of Davis. Vanoy stated: “[W]e basically round tabled the investigation with the prosecutor’s office, our crime scene personnel. You know, we had someone who was being very deceptive to us. We had this person’s DNA on her kitchen towel.” (Emphasis added.)

{¶ 122} A police officer’s opinion that an accused is being untruthful is inadmissible. See State v. Potter, Cuyahoga App. No. 81037, 2003-Ohio-1338, 2003 WL 1355230, ¶ 39 (officer’s testimony that defendant’s version of events was untruthful was improper); State v. Miller (Jan. 26, 2001), Montgomery App. No. 18102, 2001 WL 62793, *5; see also State v. Boston (1989), 46 Ohio St.3d 108, 129, 545 N.E.2d 1220 (an expert may not express opinion of a child declarant’s veracity).

{¶ 123} Vanoy’s testimony that Davis “was being very deceptive” to them expressed his opinion that Davis was being untruthful and was erroneously admitted. Nevertheless, Vanoy’s isolated comment did not result in plain error. There was overwhelming evidence of Davis’s guilt. His DNA was found in bloodstains at the murder scene. This evidence was corroborated by testimony that Davis had had frequent contact with Sheeler as a taxi driver and that he went on a buying spree near the time of her murder.

{¶ 124} Davis also claims that Vanoy improperly expressed his opinion that Davis had lied during his second interview by testifying:

{¶ 125} “Mr. Davis continued to deny being involved in [Sheeler’s] murder. However, one thing that stood out that was substantially different from what he had told us in Florida was he admitted that he had lied to Detective Mummy about knowing Mrs. Sheeler. And I asked him why had he lied to us about that, and he said, because you guys were trying to pin the murder on me.” (Emphasis added.)

{¶ 126} We reject this claim because Vanoy was not expressing his opinion that Davis lied. Rather, Vanoy simply testified that Davis admitted lying to investigators during his first interview.

{¶ 127} Fourth, Davis argues that Vanoy’s ongoing commentary and interpretation of Davis’s reactions during the interview denied him the right to confrontation in violation of Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford, the United States Supreme Court held that the Confrontation Clause bars “testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Id. at 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177. Crawford does not apply to Vanoy’s testimony about Davis’s statements because Davis is the accused.

{¶ 128} Fifth, Davis contends that Vanoy should not have testified about his first interview of Davis because the tape and transcript of the interview were available, and the tape provided the best evidence of his statements. However, the “best evidence” rule did not prohibit Vanoy’s testimony about the interview, even though the tape and transcript of the interview were also available. See State v. Turvey (1992), 84 Ohio App.3d 724, 735, 618 N.E.2d 214; State v. James (1974), 41 Ohio App.2d 248, 249, 70 O.O.2d 456, 325 N.E.2d 267. Thus, no plain error occurred.

{¶ 129} Sixth, Davis claims that Vanoy’s testimony that Davis refused to give a tape-recorded statement after the second interview was an improper comment on his Fifth Amendment right to remain silent. Vanoy testified that Davis was interviewed for a second time after police decided to arrest him, but this interview was not tape-recorded. During cross-examination, Vanoy explained why the second interview was not recorded: “It was just a decision not to record that interview. We wanted to go back and get a taped statement from Mr. Davis and we tried, but he was unwilling to give us a taped statement.” On redirect, Vanoy repeated, “[W]e tried to do a recorded statement after the fact [but] Mr. Davis would not give us one.”

{¶ 130} A prosecutor may not use a defendant’s postarrest, post -Miranda silence against him at trial. Wainwright v. Greenfield (1986), 474 U.S. 284, 295, 106 S.Ct. 634, 88 L.Ed.2d 623. However, Vanoy’s testimony that Davis refused to provide a recorded statement was not a comment on Davis’s right to remain silent. Davis had already freely and voluntarily discussed the crime with Vanoy on two occasions. Thus, his refusal to give a recorded statement after providing an unrecorded statement was not an exercise of his Fifth Amendment right to remain silent. See San Martin v. Florida (Fla.1997), 705 So.2d 1337, 1346 (an accused’s refusal to give a recorded statement after voluntarily providing an unrecorded statement is not an exercise of his or her right to remain silent). Hence, this argument lacks merit.

{¶ 131} Seventh, Davis argues that the prosecutor improperly commented on his right to remain silent by asking Vanoy whether Davis provided information about Sheeler and his brother, Randy Davis. During cross-examination, trial counsel asked Vanoy whether he had questioned Davis about any potential relationship between Randy and Sheeler. On redirect, the prosecutor asked Vanoy whether Davis had made any connection between Sheeler and Randy during the two interviews. This questioning clarified Vanoy’s testimony and did not constitute a comment on Davis’s right to remain silent.

{¶ 132} Finally, we reject Davis’s argument that his counsel were ineffective by failing to object to Vanoy’s testimony. Arguably, counsel were deficient by failing to object to Vanoy’s improper testimony that Davis “was being very deceptive” to them. However, Davis has failed to establish prejudice in view of the overwhelming evidence of his guilt.

{¶ 133} Based on the foregoing, we reject proposition V.

{¶ 134} Detective Elliget’s testimony. In proposition of law VI, Davis argues that Elliget improperly testified before the scientific reliability of his expert testimony was established, that Elliget was neither qualified nor tendered as an expert witness, and that the prosecutor committed misconduct in questioning Elliget. However, Davis failed to object to Elliget’s testimony and thus waived all but plain error. State v. Childs, 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus. Davis also stipulated to Elliget’s qualifications. Thus, Davis invited any error that he now complains of regarding Elliget’s qualifications. Hal Artz Lincoln-Mercury, Inc., 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph one of the syllabus. Alternatively, Davis argues that his counsel’s stipulation and failure to object constituted ineffective assistance.

{¶ 135} 1. Scientific reliability. In addition to the requirement of relevancy, expert testimony must meet the criteria of Evid.R. 702, which provides that a witness may testify as an expert if:

{¶ 136} “(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons * * *;

{¶ 137} “(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

{¶ 138} “(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information.”

{¶ 139} Davis invokes Daubert v. Merell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, in arguing that Elliget should not have been permitted to testify about fingerprint, blood-spatter, and bloodstain evidence until the trial court had conducted a hearing on the scientific reliability of such evidence. 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. Id. at 589, 113 S.Ct. 2786, 125 L.Ed.2d 469.

{¶ 140} Without a defense objection, the trial court was not obligated to conduct a hearing on the relevance and reliability of Elliget’s testimony about fingerprint evidence. Indeed, “the reliability of fingerprint evidence is well established.” State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 93.

{¶ 141} Absent a defense objection, the trial court was also not obligated to conduct a hearing on the relevance and reliability of blood-spatter testimony. See State v. Biros (1997), 78 Ohio St.3d 426, 452, 678 N.E.2d 891 (blood-spatter analysis is a proper subject for expert testimony).

{¶ 142} Finally, in the absence of a defense objection, the trial court did not err by not conducting a hearing on the relevance and reliability of the use of an alternate light source to detect unseen bloodstains. Elliget testified that he had applied Leucomalachite to various surfaces in the apartment and had then used an alternate light source to presumptively indicate the presence of blood.

{¶ 143} We have not previously ruled on the reliability of this presumptive testing. However, other jurisdictions have held that Luminol, another chemical used to detect bloodstains using an alternate light source, is sufficiently reliable for what it purports to do: presumptively indicate the presence of blood. Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, ¶ 62; State v. Canaan (1998), 265 Kan. 835, 964 P.2d 681, paragraph 11 of the syllabus (use of Luminol universally accepted as a presumptive test for blood); People v. Cumbee (2006), 366 Ill. App.3d 476, 493, 303 Ill.Dec. 747, 851 N.E.2d 934 (Luminol testing admissible).

{¶ 144} During his testimony, Elliget described the methodology for using an alternative light source to presumptively detect the bloodstains found in the sink area. The state found it unnecessary to introduce other potential testimony establishing the reliability of using an alternate light source because the defense did not object to its reliability. Acceptance of the reliability of such evidence in other jurisdictions supports the conclusion that the trial court committed no plain error by