State v. Were (118 Ohio St. 3d 448, 2008)

Pfeifer, J.

{¶ 1} In April 1993, inmates rioted at the Southern Ohio Correctional Facility (“SOCF”) in Lucasville, Ohio. During the riot, inmates killed corrections officer Robert Yallandingham. In 1995, James Were, the defendant-appellant, was convicted of aggravated murder for his participation in Vallandingham’s killing and sentenced to death. On appeal, this court reversed, holding that Were had been deprived of a fair trial because the trial court did not hold a competency hearing. State v. Were (2002), 94 Ohio St.3d 173, 176-177, 761 N.E.2d 591.

{¶ 2} In 2003, a new jury convicted Were of aggravated murder and sentenced him to death. The court of appeals affirmed. State v. Were, Hamilton App. No. C-030485, 2005-Ohio-376, 2005 WL 267671. This cause is now before the court upon an appeal as of right.

{¶ 3} On Sunday afternoon, April 11, 1993, a group of inmates seized control of the L-complex (“L-Block”) at SOCF. The L-Block contained eight cellblocks, and each cellblock contained 80 cells. During the riot, groups of inmates overpowered prison guards and held authorities at bay for several days. Before control was regained at the prison, several inmates and Vallandingham were killed.

{¶ 4} The riot was planned and started by a group of Muslim gang members imprisoned at SOCF. Once the riot began, two other prison gangs, the Aryan Brotherhood and the Black Gangster Disciples, joined in. Carlos Sanders, Stanley Cummings, and Were — who was also known as “Namir” — were leaders of the Muslim gang during the riot. The Aryan Brotherhood, a white supremacist gang, was led by Jason Robb and George Skatzes. The Black Gangster Disciples was headed by Anthony Lavelle.

{¶ 5} After the riot started, each of the three gangs staked out separate territory within L-Block. The Muslims controlled the L-6 cellblock and stayed there for the duration of the riot. During the riot, Were wore a striped referee’s shirt, signifying that he was allowed access to any area controlled by the prisoners.

{¶ 6} As the takeover began, a group of masked inmates entered the L-l cellblock where Vallandingham was stationed. Vallandingham had locked himself into the officer’s bathroom near the front of the L-l cellblock. Several inmates turned over a metal desk and started banging that desk against the bathroom door. Inmate Steve Macko identified Were as one of the inmates near the bathroom at this time. Eventually, Vallandingham was removed from the bathroom.

{¶ 7} Were, Sanders, and Reggie Williams, another Muslim gang member, then took Vallandingham down the corridor to the L-6 cellblock. Vallandingham was put into the L-6 shower where his hands were cuffed behind his back and a sheet was placed over his head. Vallandingham was later moved to a cell in the L-6 cellblock.

{¶ 8} Organized negotiations between the authorities and the inmates began on the second day of the riot. Additionally, on the second day, the Ohio State Highway Patrol (“OSP”) installed listening devices in the large tunnels underneath L-Block. Shortly thereafter, the FBI supplied more sophisticated listening devices, which were placed in crevices at ten locations underneath L-Block. Authorities then listened and recorded inmate conversations, referred to as the “tunnel tapes,” during the duration of the riot. A total of 591 “tunnel tapes” were created. Also, on the second day of the riot, the water and power were turned off inside L-Block.

{¶ 9} On April 14, the public information officer for the Department of Corrections responded to media questions about inmate threats. She stated that there had been threats and that they were a standard part of the negotiations. The inmates, who were following the news on battery-operated televisions and radios, were upset by these comments and felt that the authorities were not taking them seriously.

{¶ 10} During a meeting on April 15 that was recorded on tunnel tape 61, Were and other inmate leaders discussed killing one of the hostages to show the authorities that they meant business. Were, who described himself as a hardliner, urged others to take a firmer stand during the negotiations. Were said that the water and power must be turned back on. He continued, “We give [the authorities] a certain time * * *. If it’s not on in a certain time, that’s when a body goes out.” Were also said, “[F]rom this point on we’re turning it over to the hardliners.”

{¶ 11} Before the April 15 meeting concluded, Were and the other inmate leaders voted to kill a corrections officer if their demands were not met. The Muslim inmates decided that Vallandingham would be killed because he had seen them kill another inmate at the beginning of the riot. After the meeting, Were stated, “I’ll do it, I’ll do it, I’ll take care of it. The hardliners is taking over. I’ll take care of it.”

{¶ 12} Around 9:00 a.m. on April 15, Skatzes had a telephone conversation with state negotiators. Skatzes said, “I cannot stress to you * * *. If you don’t turn it on, it’s a guaranteed murder. * * * That’s the end of it. Do your thing at 10:30 or a dead man’s out there.” The inmates’ demands were not met.

{¶ 13} During the riot, inmate Thomas Taylor was locked in a cell in the L-6 cellblock. On the morning of April 15, Taylor saw Were and another inmate remove Vallandingham from his cell and take him to the end of the L-6 cellblock. Around the same time, inmate Sherman Sims walked past the L-6 shower area. Were was standing at the shower door and looking into the shower. Were noticed Sims and asked what he was doing there. While this exchange took place, Sims looked into the shower and saw a man with something over his head being strangled with a rope by two people. He also saw one of them “putting a bar to [the man’s] throat.”

{¶ 14} Were told Sims that he would have to help carry the body out of the prison. Were directed the inmates to wrap the body in sheets. At 11:10 a.m. on April 15, Sims and three other masked inmates carried Vallandingham’s body from the prison and into the recreation yard.

{¶ 15} After the body was taken into the yard, Reginald Williams, a Muslim inmate, saw Were talking to Cummings while Cummings was on the phone with the state’s negotiator. Were said, “You can come get your boy * * * he’s out there, and you didn’t take us serious. And from this point on, * * * you’ll take us serious.”

{¶ 16} At 12:10 p.m. on April 15, a SWAT team recovered Vallandingham’s body from the recreation yard.

{¶ 17} On April 17, Were and other inmate leaders had a meeting to discuss the progress of negotiations. This meeting was recorded on tunnel tape 32. Were argued that the hardliners should control the negotiations. During the meeting, Were said, “If everybody can recall when we first started to see improvement in here, when we sent an officer out there, that is when we started to get to see some improvement. * * * When that officer went out there, that body went out there, that is when they began to see that we is serious, because all along they said that we are not serious * * *.”

{¶ 18} Were continued, “I am putting it just like this * * * if we have to throw another body, it will let people know the hardliners will put their foot down * * *. I don’t give a damn you understand if some of the hostages die slow, or die at all, if I have to die, or we have to die, so I feel then if I cut off a man’s fingers, I will cut the man’s hand off and go out there and say now, I am going to let you know we ain’t interested in killing your hostages, they’ll die slow, since you all want to play games. We is for real about what we is about, man.”

{¶ 19} A short time later, Were said, “[T]hey only respect firmness. * * * I don’t give a damn if it has to be on national TV, for them to see me personally, cut one of them dudes hands off and give it to them and spit it out of my mouth for them to know how serious I am about what we believe in. I don’t care nothing about no electric chair, I don’t care nothing about no other case * * * we got what they want and they got what we want.”

{¶ 20} The riot ended on April 21, 2003, when the remaining hostages were released. Investigators then began interviewing witnesses and collecting evidence from inside the prison. No useful physical evidence linking any person to Vallandingham’s murder was ever recovered.

{¶ 21} Dr. Patrick Fardal, Franklin County Deputy Coroner, conducted the autopsy on Vallandingham. Vallandingham suffered an injury to his neck that was about eight inches in length, and another abrasion about two and one-half inches long was above the primary one. Fardal testified that petechial hemorrhages on the victim’s face and eyes showed that considerable force was exerted upon Vallandingham’s neck. An internal exam showed that the hyoid bone and the cornu of the thyroid cartilage had been fractured by the force exerted upon the victim’s neck. Vallandingham had also suffered a small chip fracture in his anterior cervical spine. Fardal concluded that Vallandingham died from ligature strangulation. Fardal did not see anything across the victim’s neck that indicated a weight bar had been used to kill him though he could not rule out the possibility that such a weapon had been used.

{¶ 22} At trial, Williams testified that after the riot, he was transferred to a prison in Mansfield, Ohio. On June 23, 1993, Were and Williams were transported on a bus from Mansfield to Lucasville. As they approached Lucasville, Were looked very concerned, and Williams asked what was bothering him. Were responded, “I think they know I killed that guard.”

{¶ 23} Charles Austin testified that he met Were in 2001 when they were both in prison in Youngstown, Ohio. During a conversation, Were said that he was Sanders’s lieutenant during the Lucasville riot. Were then said that “he was the one who kidnapped, robbed and killed Officer Vallandingham” by strangling him. Were said that after killing him, Sanders told him to carry Vallandingham’s body into the yard and leave it.

{¶ 24} On September 4, 1995, Were testified as a defense witness at the trial of Derrick Cannon, one of the Lucasville rioters. According to Mark Piepmeier, the lead special prosecutor for the Lucasville prison riot cases, Were testified that he moved from cellblock L-l to cellblock L-6 after the riot started and remained there for the duration of the riot. Were also indicated that he was present in cellblock L-6 when Vallandingham was murdered.

{¶ 25} During the defense case-in-chief, Thomas Blackmon, a Muslim inmate at SOCF during the riot, testified that Were had not been a leader during the riot. Blackmon said, “Nobody paid that much attention to [Were]. * * * [W]e respected him as a Muslim * * * but as far as listening to him * * * no. * * * [H]e is a good brother, but he can’t read or write. * * * So he wasn’t taken as serious as [Sanders], who was a bookworm and was real intelligent * *

{¶ 26} After the riot, Blackmon was moved from Lucasville to a succession of correctional facilities. At one correctional facility, Blackmon talked to Sherman Sims. Sims said that the OSP wanted him to say that Were was involved in Vallandingham’s death. Sims said that if he did not “flip” on Were, the OSP “was going to give it to him.”

{¶ 27} Blackmon also talked to Reginald Williams at Lucasville after the riot. Williams said that the OSP was messing with their food, making death threats, and he would do anything to get out of Lucasville. Williams said that the OSP told him to say that Were was involved in Vallandingham’s death.

{¶ 28} Gregory Durkin, a member of the Aryan Brotherhood, testified that he sat next to Skatzes during the April 15 meeting of inmate leaders. During the meeting, Lavelle handed Skatzes a note that said the hardliners were taking over. Lavelle told Skatzes to read that message to the negotiators, and Skatzes did so. Shortly thereafter, Durkin saw Lavelle enter the L-6 cellblock with four men wearing masks and dressed in white food-service uniforms. Durkin never saw Lavelle or the other men exit the L-6 cellblock and did not know what they had done.

{¶ 29} Brian Eskridge, an inmate at SOCF during the riot, testified that he talked to Lavelle following the April 14 media comments about inmate threats. Lavelle said, “We got to kill this [corrections officer]. We got to show them that we serious about * * * our problem, we have to get this 187” (a slang term for murder). Later, Eskridge learned that Vallandingham had been killed. The next day, Lavelle had members of his security force beat Eskridge for not helping him “commit this 187.”

{¶ 30} Aaron Jefferson, a member of the Black Gangster Disciples, testified that he attended meetings with Lavelle during the riot. On April 13 or 14, Jefferson had a “falling out” with Lavelle because Jefferson refused to follow Lavelle’s orders about killing a corrections officer.

{¶ 31} Finally, the defense played the tape and provided the transcript of tunnel tape 60, a recording of an inmate meeting on the morning of April 16. On the tape, the inmates discussed their grievances with the prison administration and their goals for the negotiations.

{¶ 32} During the meeting, Lavelle stated, “You must understand now where George, Robb and I, we have to concern ourselves now, with we’re going to wind this thing up with our own safety, and especially with us keeping off that death row over there about that guard getting offed[.] I don’t care about the inmates, cause they are going to say we did it, anyway.”

Trial Result

{¶ 33} Were was indicted on two counts of aggravated murder. Count 1 charged Were with the aggravated murder of Vallandingham with prior calculation and design. Count 2 charged Were with the aggravated murder of Valland-ingham while committing kidnapping. Both counts contained death-penalty specifications for murder committed purposely and with prior calculation and design while a prisoner in a detention facility, R.C. 2929.04(A)(4), and murder committed purposely and with prior calculation and design while committing, attempting to commit, or fleeing after committing kidnapping, R.C. 2929.04(A)(7).

{¶ 34} Were had been acquitted of two additional counts at his first trial; those charges were not part of his second trial. Count 5 charged Were with the separate offense of kidnapping with a specification of a prior conviction of an offense substantially equivalent to an aggravated felony of the first degree.

{¶ 35} Were pleaded not guilty to all charges. The jury found Were guilty of all charges, and he was sentenced to death. The cause is now before this court upon an appeal as of right.

{¶ 36} Competency to stand trial. In propositions of law IX and X, Were argues that he was incompetent to stand trial and that the trial court’s ruling that he was competent is not supported by the evidence.

{¶ 37} The trial court conducted two competency hearings. Before each of these hearings, Were refused to cooperate with psychologists sent to evaluate him. During the first competency hearing, Alan Barr, a correctional-program specialist at Lebanon Correctional Institution, testified as a state witness. Barr had numerous contacts with Were in prison. He testified that Were was always responsive and that Were understood the rules and regulations of prison life. Marva Allen, the manager of the isolation unit at Lebanon, testified that Were presented lucid arguments when talking about his rights and privileges and that he had never exhibited any bizarre thought patterns or behavior during their discussions.

{¶ 38} During the first hearing, the defense presented the testimony of three inmates: Daniel Coleman, Danny Grant, and John William Harris. Coleman assisted Were with adult education courses he was taking in prison. All three witnesses helped Were with his legal paperwork. They testified that Were had difficulty comprehending information and that explanations had to be repeated to him. Grant and Harris testified that they prepared legal motions for Were, and he would then copy them in his own handwriting.

{¶ 39} The defense also introduced the transcript of the hearing on Were’s motion to dismiss counsel at his first trial. During that hearing, Were asserted a breakdown in communications, accused his counsel of trickery, and claimed that his counsel would not do what he asked. According to John Mackey, one of Were’s attorneys at his first trial, Were believed that his counsel were in league with the state, and he would not talk to them. Mackey opined that Were suffers from paranoia. The defense also presented a collection of motions, pro se motions, and journal entries pertaining to Were’s problems in cooperating with his attorneys during his first and second trials.

{¶ 40} The trial court ruled that Were was competent to stand trial. The trial court found that Were understood the nature and character of the charges against him and that he was capable of assisting counsel in his defense “if he wishes to do so.”

{¶ 41} Less than two months later, the defense filed a new suggestion of incompetency. During the second competency hearing, Jacalyn McCullough, a teacher with the Ohio State Penitentiary, testified for the defense. Were had attended classes taught by McCullough for over a year while he was an inmate at the Ohio State Penitentiary in Youngstown. She testified that Were’s reading was at a fourth- or fifth-grade level and that his math skills were at a third-grade level. Were was unsuccessful in moving to a pre-General Educational Development (“GED”) curriculum because he could not perform at a sixth-grade level. McCullough believes that if Were were in a normal school setting, he would be considered developmentally handicapped.

{¶ 42} Dr. David Hammer, a clinical psychologist, also testified for the defense. Hammer believed that Were was mildly mentally retarded and was not competent to stand trial. Hammer believed that Were’s intellectual limitations would “make it very difficult for him to * * * confer with his counsel for the defense.” Hammer’s competency opinion was based on Were’s cognitive limitations and his demonstrated pattern of paranoid thinking. Hammer’s findings on Were’s cognitive limitations were based on Were’s IQ test scores of 69 when he was seven and 12 years old and McCullough’s testimony that Were’s reading comprehension was at the third-grade level. Hammer did not personally evaluate Were because Were refused to meet with him.

{¶ 43} The defense also presented Were’s school records. These records show that Were did poorly in school and had an IQ of 69.

{¶ 44} After the second hearing, the trial court again ruled that Were was competent to stand trial. In reviewing the evidence, the trial court stated that McCullough’s testimony dealt with his intelligence level, not his competency. The trial court found that Hammer was not believable based on observing his testimony, his background (noting that Hammer failed his test for licensing in Ohio the first time), and how he arrived at his conclusions. The trial court also noted that Hammer did not interview Were.

{¶ 45} The test for determining whether a defendant is competent to stand trial is “ ‘whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, quoting Dusky v. United States (1960), 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824. A defendant is presumed to be competent to stand trial, and the burden is on the defendant to prove by a preponderance of the evidence that he is not competent. R.C. 2945.37(G); State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28.

{¶ 46} A trial court’s finding that a defendant is competent to stand trial will not be disturbed when there is some reliable and credible evidence supporting those findings. State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 33; State v. Williams (1986), 23 Ohio St.3d 16, 19, 23 OBR 13, 490 N.E.2d 906. Deference on these issues should be given “to those who see and hear what goes on in the courtroom.” State v. Cowans (1999), 87 Ohio St.3d 68, 84, 717 N.E.2d 298.

{¶ 47} Were contends that the trial court’s findings are flawed because testimony established that he could not understand and cooperate with his lawyers because of his paranoid distrust of them. But Were’s paranoid behavior does not undermine the trial court’s findings of his competence to stand trial. See Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, at ¶ 25-29. As noted in State v. Bock (1986), 28 Ohio St.3d 108, 110, 28 OBR 207, 502 N.E.2d 1016, “[i]ncompetency must not be equated with mere mental or emotional instability or even outright insanity. A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.”

{¶'48} Were argues that his paranoia was exacerbated because he is also mentally retarded. The trial court, however, made findings during a later portion of the trial that Were was not mentally retarded. Even assuming that these findings are incorrect, “[mjentally retarded persons frequently * * * are competent to stand trial.” Atkins v. Virginia (2002), 536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335. Thus, we reject this claim.

{¶ 49} Finally, Were argues that the trial court erred by disregarding Hammer’s unrebutted expert testimony that Were was incompetent. State v. Brown (1983), 5 Ohio St.3d 133, 5 OBR 266, 449 N.E.2d 449. In Brown, three expert witnesses testified that the defendant met the criteria for legal insanity and three lay witnesses recounted the defendant’s bizarre behavior during the relevant time period. Id. at 133-134, 5 OBR 266, 449 N.E.2d 449. The trial court found the defendant sane even though the state offered no rebuttal testimony indicating that the defendant was sane. Id. at 134, 5 OBR 266, 449 N.E.2d 449. We disagreed, holding that the trial court arbitrarily ignored expert testimony that the defendant was insane. Id. at 135, 5 OBR 266, 449 N.E.2d 449. Unlike Brown, the state in this case presented two witnesses testifying to Were’s competency. Further, the trial court specifically concluded that Hammer’s conclusions were not “believable.” Brown does not control our conclusion on this issue.

{¶ 50} We also consider our recent decision in State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, in resolving this issue. In White, both the state’s and the defense’s experts concluded that White was mentally retarded. Id. at ¶29. The state also presented testimony from White’s girlfriend, who testified that he worked and rented an apartment, and could cook, drive, and play games that required coordination. Id. at ¶ 27. After considering the evidence, the trial court found that White had failed to prove by a preponderance of the evidence that he had significant limitations in two or more adaptive skills or “onset before the age of 18.” Id. at ¶ 33. Based on these findings, the trial court ruled that White had failed to establish that he was mentally retarded. Id.

{¶ 51} The trial court in White rejected the experts’ conclusion because it questioned the manner in which the experts administered and scored the Scales of Independent Behavior — Revised (“SIB-R”), which measures adaptive skills. Id. at ¶ 35. The trial court also found that the testimony of White’s girlfriend was inconsistent with retardation. Id. at ¶ 39. We held that the trial court abused its discretion when it determined that White had failed to prove the existence of significant adaptive-skills limitations. Id. at ¶ 48. We concluded that the trial court had improperly disregarded expert opinion in reaching its findings and had overly relied on the girlfriend’s observations. Id. at ¶ 71-72. We also noted that the trial court made no findings that the experts lacked either credentials or credibility. Id. at ¶ 73.

{¶ 52} The trial court in this case found that Dr. Hammer’s expert opinion on competency was not credible based on “his education, his experience, and * * * how he arrived at his opinions.” The trial court’s own observations of the defendant supported its conclusion that Were was competent to stand trial. Dr. Hammer testified that Were was incompetent because of his inability to cooperate with his counsel. That conclusion is undermined by several in-court statements made by Were and by the pro se motions filed by Were before the second competency hearing was completed. We conclude that the trial court could properly find that Were was capable of communicating with his lawyers when he wanted to do so. See State v. Filiaggi (1999), 86 Ohio St.3d 230, 237, 714 N.E.2d 867 (trial court’s own observations of defendant and testimony of correctional officers showed that competency determination was not arbitrary).

{¶ 53} We hold that the trial court did not abuse its discretion in finding that Were was competent to stand trial. The trial court’s findings were based on the state’s two witnesses, consideration of the defense evidence, and its own observations of the defendant. Thus, reliable and credible evidence supports the trial court’s decision. We reject propositions of law IX and X.

{¶ 54} Disqualiñcation of the trial judge. In proposition of law XXV, Were contends that he was deprived of a fair and impartial judge because the judge also presided at the trial of a codefendant, Carlos Sanders. Because of the likelihood of bias, Were argues that the trial judge should have recused himself.

{¶ 55} During pretrial proceedings, Were addressed the court and asserted that the trial judge was prejudiced because he had been the judge at Sanders’s trial. Were said he asked his counsel to file a motion to remove the sitting judge from his case. Trial counsel did not request the judge to recuse himself or file an affidavit of disqualification.

{¶ 56} Under R.C. 2701.03(A), when a party believes that the trial judge is biased, the proper avenue for redress is the filing of an affidavit of disqualification. See Section 5(C), Article TV, Ohio Constitution. “An affidavit of disqualification must be filed as soon as possible after the incident giving rise to the claim of bias and prejudice occurred or affiant becomes aware of circumstances that support disqualification. A party may be considered to have waived its objection to the judge when the objection is not raised in a timely fashion and the facts underlying the objection have been known to the party for some time.” In re Disqualification of O’Grady (1996), 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353. Because Were failed to file an affidavit of disqualification against the trial judge, he waived his complaint.

{¶ 57} Were’s allegations also lack merit. Were presents no evidence of judicial bias other than the trial court’s previous participation as the judge at a codefendant’s trial. A trial judge is not disqualified simply because he acquired knowledge of the facts during a prior proceeding. See State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 188, 616 N.E.2d 909. We reject proposition XXV.

{¶ 58} Batson challenges. In proposition of law XXVIII, Were asserts that the prosecutor peremptorily challenged two African-American prospective jurors because of their race, in violation of his equal-protection rights under Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

{¶ 59} Initially, the state argues that this issue is moot because the two African-American jurors who were peremptorily challenged were alternate jurors who were never called upon to deliberate on the case. This same argument was rejected in United States v. Harris (C.A.6, 1999), 192 F.3d 580, 587-588. Harris held that alternate status is “irrelevant” to a Batson analysis because “the harm inherent in a discriminatorily chosen jury inures not only to the defendant, but also to the jurors not selected because of their race, and to the integrity of the judicial system as a whole.” Id. Thus, this argument lacks merit.

{¶ 60} Moreover, Were did not raise his Batson claim in the court of appeals. He has therefore waived the issue absent a showing of plain error. State v. Phillips (1995), 74 Ohio St.3d 72, 80, 656 N.E.2d 643; State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus; see Crim.R. 52(B).

{¶ 61} “ ‘A court adjudicates a Batson claim in three steps.’ State v. Murphy (2001), 91 Ohio St.3d 516, 528, 747 N.E.2d 765. First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69. * * * Finally, the trial court must decide based on all the circumstances, whether the opponent has proved purposeful racial discrimination. Id. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69. See also Purkett v. Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834. A trial court’s finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous. State v. Hernandez (1992), 63 Ohio St.3d 577, 583, 589 N.E.2d 1310, following Hernandez v. New York (1991), 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395.” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 106.

{¶ 62} During the selection of alternate jurors, the prosecutor peremptorily challenged two African-American prospective jurors, West and Mitchell. Were’s counsel objected to the state’s peremptory challenge of both jurors as a Batson violation.

{¶ 63} During voir dire, West had stated, “I don’t believe I could” join a death verdict. West continued, “I would feel funny about it. I just, it is just me. * * * I don’t want to sentence anybody like that.” After further questioning, West stated, “If I have to do it, I would do it.” West’s equivocal answers conveyed uncertainty about her ability to vote for the death penalty.

{¶ 64} The prosecutor stated that he peremptorily challenged West because she said she had no opinion on the death penalty on her questionnaire. He also stated, ‘When she was [questioned] by the Judge, it became very apparent that, in fact, she opposed the death penalty. Initially, it was almost like she couldn’t even pass the Witherspoon [v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776] test, but the Judge asked her and got her qualified. But it was obvious that she had serious problems with the death penalty.”

{¶ 65} Uncertainty about how a prospective juror perceives the death penalty is a “race-neutral reason” for exercising a peremptory challenge against her. See State v. White (1999), 85 Ohio St.3d 433, 437, 709 N.E.2d 140. The trial court concluded that the prosecutor had “asserted a race-neutral reason for [the] exercise of the peremptory” challenge and rejected the Batson challenge. We find no plain error.

{¶ 66} The prosecutor provided the following race-neutral explanation for peremptorily challenging prospective juror Mitchell:

{¶ 67} “First of all, Judge, just to make this short, I’ll adopt everything that I said with regard to [West] because the same facts apply here. There is no opinion on the questionnaire, but when questioned by the Judge, it was obvious that she had some death penalty feelings.

{¶ 68} ‘We think that we’re entitled to a jury that will fairly consider the death penalty. We don’t believe that she’s one. That’s our reason for excusing her.”

{¶ 69} Trial counsel challenged the state’s explanation and asserted, “[T]his is now the third African-American woman being excused from this jury. We think that it is a systematic exclusion of African-Americans * * In reply, the prosecutor stated, “This jury contains two black females and one black male. We have exercised our peremptories to excuse * * * three white people and three black people. We have done it because we felt that the people couldn’t give us a fair jury.” The trial court rejected the Batson challenge and found that the “prosecutor has laid out a race-neutral reason for the excuse of Ms. Mitchell.”

{¶ 70} We conclude that no plain error was committed. Mitchell’s answers about the death penalty in her questionnaire and during voir dire conveyed some uncertainty about her position on the death penalty. Mitchell’s juror questionnaire shows that when asked, “What is your opinion concerning Capital Punishment}?]” Mitchell checked the block stating “no opinion.” During voir dire, Mitchell was asked for her views about capital punishment:

{¶ 71} “Q (trial court): [I]f the facts * * * would call for [the death penalty] and the law that would be given to you would permit it, could you join in a verdict with your other jurors knowing that your decision could result in the death of Mr. Were, the defendant?

{¶ 72} “A: Yes, I think I could.

{¶ 73} “Q: You think you could?

{¶ 74} “A: Yes.”

{¶ 75} Other facts also point away from a racial motivation. The jury included two female and one male African-American jurors. Moreover, the state did not use two peremptory challenges that were available before the jury was selected. The presence of African-Americans on a jury certainly does not preclude a finding of discrimination, but “ ‘the fact may be taken into account * * * as one that suggests that the government did not seek to rid the jury of persons [of a particular] race.’ ” White, 85 Ohio St.3d at 438, 709 N.E.2d 140, quoting United States v. Young-Bey (C.A.8, 1990), 893 F.2d 178, 180.

{¶ 76} We conclude that Were has failed to demonstrate that the trial court committed plain error by overruling his Batson claim. We therefore overrule proposition of law XXVIII.

{¶ 77} Restrictions on voir dire. In proposition of law XXXI, Were argues that the trial court improperly restricted defense questioning during voir dire examination. Were did not raise this claim in the court of appeals and therefore waived all but plain error. Williams, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.

{¶ 78} “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. “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.

{¶ 79} Were asserts that the trial court unduly limited his counsel’s efforts to identify prospective jurors who could not reasonably follow the law and consider the evidence during both phases of the proceedings. Were’s claim is not supported by the record. Voir dire took four days and encompasses nearly 800 pages of transcript. Trial counsel were given extensive leeway in examining jurors about their willingness to consider the evidence, follow the court’s instructions, and impose a life sentence.

{¶ 80} Were claims that the trial court precluded the defense from asking excused juror Lingo and seated juror Copeland about mental retardation. The trial court did not permit Lingo to be questioned about his willingness to consider mental retardation as a mitigating factor. Parties in a capital case are not entitled to ask about specific mitigating factors during voir dire. State v. Jones (2001), 91 Ohio St.3d 335, 338, 744 N.E.2d 1163. The trial court precluded Copeland from answering a question about the minimum age for imposing the death penalty. This question is not relevant to mental retardation.

{¶ 81} Were also argues that the trial court improperly precluded questioning about the burden of proof in the sentencing phase. During voir dire of Lingo, trial counsel stated, “[I]f he was convicted * * * they’re still going to have to prove * * * that the aggravating circumstances outweighed the mitigating.” The trial court interrupted counsel and said, “He doesn’t even know what an aggravating circumstance is, what is going to outweigh a mitigating factor. * * * You can’t have him answer it.” The trial court exercised appropriate discretion. Indeed, “weighing aggravating circumstances against mitigating factors is a complex process. * * * Realistically, jurors cannot be asked to weigh specific factors until they have heard all the evidence and been fully instructed on the applicable law.” State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304.

{¶ 82} Next, Were claims that the trial court erred by not permitting trial counsel to mention that the defense could not offer plea bargains to inmate witnesses, as the prosecution could. During voir dire of seated juror Erndt, the trial court sustained the state’s objection to trial counsel’s statement, “I can tell you, by the same token, that the witnesses for the defense are basically going to be convicted felons who were inmates at Lucasville at the time of the riot. * * * I can also promise you that the defense witnesses didn’t get any plea bargains in return for their testimony.” Trial counsel was not asking a question but making a statement about witness credibility. Also, there was no prejudice because counsel later asked Erndt if she could judge credibility based upon the witnesses’ bias and motive to lie.

{¶ 83} Were also contends that the trial court erred by not allowing trial counsel to ask excused juror Garrett and excused alternate Smith whether they would vote for death if Were were found guilty of intentional murder. During Garrett’s voir dire, the trial court did not allow trial counsel to ask, “So what we want to know is if you have made that determination, * * * that there was an intentional killing * * * in a prison facility, I don’t need to hear any more — death penalty?” Garrett had previously expressed her willingness to consider the facts, follow the judge’s instructions, and consider all sentence options. Thus, the trial court could limit repetition of the same type of questions.

{¶ 84} The trial court curtailed questioning of Smith about imposing the death penalty for an intentional killing because “he doesn’t know what an intentional killing is. * * * That’s a legal definition.” No possible prejudice resulted because the trial court rephrased the question, and Smith stated that he would not automatically vote for the death penalty and would consider life-sentence options if Were were found guilty as charged.

{¶ 85} Finally, Were complains that the trial court improperly precluded the defense from asking seated jurors Birri and Nie about procedural issues. The trial court did not allow counsel to discuss the differences between grand jury and trial procedures with Birri, who had previously served on a grand jury. The trial court also did not allow counsel to inform Nie that the jury would be conducting a jury view of the Lucasville prison. The trial court acted properly in each instance because the subject matter of such questioning was outside the scope of voir dire. See State v. Durr (1991), 58 Ohio St.3d 86, 89, 568 N.E.2d 674.

{¶ 86} We find that the trial court committed no plain error in restricting trial counsel’s questioning during voir dire. Thus, we overrule proposition of law XXXI.

{¶ 87} Jury view. In proposition of law XXXII, Were argues that the trial court violated his due-process rights by not allowing him to be present at the jury view of the crime scene. Were did not raise this claim in the court of appeals and has therefore waived all but plain error. Williams, 51 Ohio St.2d 112, 5 0.0.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus; see Crim.R. 52(B). In a pretrial motion, the defense requested that the court grant a jury view of the crime scene at the prison. In ruling on the motion, the following exchange occurred:

{¶ 88} “The court: Would your client waive his presence?

{¶ 89} “The defendant: Well, I’d like to be present so I can share a thought with my attorneys about the situation down there. They might like—

{¶ 90} “The court: I won’t grant that view of the scene if you want to be present.

{¶ 91} “Ms. Agar (defense counsel): My understanding is if you — if that’s the only way we can have the view of the scene, you’re willing to waive your presence, is that correct, in order for the jury to be able to see the scene?

{¶ 92} “The defendant: Yeah, if that’s the only way.

{¶ 93} “The court: That’s the only way, if you waive your presence.

{¶ 94} “All right. The record will show the defendant has waived his presence at the view of the scene.”

{¶ 95} 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 * * * to such place, which shall be shown to them by a person designated by the court. * * * The accused has the right to attend such view by the jury, but may waive such right.”

{¶ 96} Were challenges the validity of his waiver because the trial court compelled the waiver as a condition of holding the jury view. He argues that such waiver is improper because his presence was a constitutionally protected right. Although Were has a statutory right to be present at the jury view, he does not have a constitutional right to be there. In Snyder v. Massachusetts (1934), 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674, the Supreme Court held that denial of a defendant’s presence at a jury view did not violate due process. The Snyder court recognized that “the presence of a defendant [in a felony prosecution] 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.” Id. at 107-108, 54 S.Ct. 330, 78 L.Ed. 674.

{¶ 97} We conclude that the trial court did not commit plain error in granting the defense request for a jury view conditioned on Were’s agreement to waive his presence. Were waived his right to attend the jury view in open court and in the presence of counsel. Moreover, trial counsel did not object to Were’s waiver of his presence as a condition to the jury view.

{¶ 98} In addition, Were cannot show that he was materially prejudiced by his absence from the jury view. His counsel were present, and there is no indication in the record that anything improper occurred at the jury view. Were told the trial court that he wanted to attend the jury view to tell his attorneys “about the situation down there,” but he did not explain how his presence at the scene would have provided his attorneys with information that they could not have gained by consulting Were before or after the visit. See State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 70 (holding that a trial court’s refusal to allow the defendant to attend the jury view was not prejudicial). Based on the foregoing, we reject proposition of law XXXII.

{¶ 99} In proposition of law XXIX, Were argues that he was denied a fair trial because the trial judge went on the bus with the jury when they visited the prison. Were did not object at trial to the judge’s decision to ride on the bus and thereby 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. Were also did not raise this argument in the court of appeals and waived this claim but for plain error. Williams, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.

{¶ 100} No plain error occurred. On the day before the jury view, the trial court discussed the arrangements with the jurors for the two and one-half hour bus ride to Lucasville. Outside the presence of the jury, the judge later stated, “I am going to go on the bus and I’ll bring reading material.” No further mention about the bus ride appears in the record.

{¶ 101} Were asserts that he was denied a fair trial because of the likelihood of unauthorized communications between the judge and the jurors during the long bus ride. There is no evidence, however, of any improper communications between the judge and jury during the bus ride or the jury view. Accordingly, we reject proposition of law XXIX.

{¶ 102} Stun belt. In proposition of law XXVI, Were contends that the trial court erred by requiring him to wear a stun belt without first conducting a hearing to justify the use of this restraint. In a pretrial motion, Were requested to appear at all proceedings without restraints. The trial court granted the motion to appear without restraints but allowed the use of a stun belt. The record does not show that the court heard evidence to justify the use of the stun belt, and the court did not state its reasons for allowing its use.

{¶ 103} A trial court can require the use of stun belts when the prosecution justifies their use on the record. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 242. The defense did not object to the trial court’s ruling permitting a stun belt and did not request a hearing on the matter. Failure to object waived the error, requiring the defendant to show that he was prejudiced by wearing the belt. Id. at ¶ 247.

{¶ 104} In pro se filings, Were complains that he was required to wear a stun belt throughout the trial. Were does not claim that the device caused him any physical discomfort or interfered with his ability to communicate with counsel. Moreover, the record contains no indication that the jury knew or could see that Were was wearing a stun belt. Accordingly, we find that defendant was not prejudiced, and overrule proposition of law XXVI.

{¶ 105} Admissibility of tunnel tapes. In proposition of law XVIII, Were argues that the trial court erred by overruling the defense motion to suppress the tape recordings of inmate conversations (“tunnel tapes”) that the FBI recorded during the riot. On April 13, 1993, FBI Agent Marc Hopper installed small microphones in the tunnels underneath L-Block to monitor and record inmate conversations. Were’s discussions with inmate leaders were recorded on April 15 and April 17. No warrant was ever issued for the interception of these conversations.

{¶ 106} Were argues that the state was not allowed to intercept the inmates’ conversations without obtaining advance consent from some party to the interception or obtaining a warrant as required by former R.C. 2933.51 et seq., Am.Sub. S.B. No. 222,141 Ohio Laws, Part I, 457. We rejected the same claim in State v. Robb (2000), 88 Ohio St.3d 59, 65-66, 723 N.E.2d 1019, another case stemming from the Lucasville riot.

{¶ 107} Robb held that federal, not state, law controlled the legality of the intercepts. Id. at 66, 723 N.E.2d 1019. FBI agents, acting under the authority of federal law, installed and monitored the electronic interception and recording devices that were used inside the prison. We explained that “[fjederal law explicitly defines 'oral communications’ as only those 'exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.’ ” Id. at 66-67, 723 N.E.2d 1019, quoting Section 2510(2), Title 18, U.S.Code. We explained that the rioting inmates had no expectation of privacy in their cells. Id. at 67, 723 N.E.2d 1019. Based on Robb, we conclude that the conversations of the rioting inmates introduced during Were’s trial were not “oral communications” entitled to protection under federal law. Accordingly, proposition of law XVIII is overruled.

{¶ 108} Admissibility of inaudible tapes, transcripts, and hearsay. In proposition of law XIX, Were argues that the trial court erred by admitting inaudible tapes of discussions between Were and inmate leaders and by permitting the jury to receive transcripts of those tapes. He also claims that the tapes and transcripts contained inadmissible hearsay. Were argues that the trial court should not have admitted the audiotapes because they were inaudible and could not be understood without the transcripts. Highway Patrol Sergeant Howard Hudson described tunnel tape 61, which recorded the April 15 meeting, as being of poor quality: “There’s a lot of clanging and banging in the background. But as far as the voices, most of what is on there can be intelligible.” Hudson testified that tunnel tape 32 is “a little clearer * * * [but] these tapes contain a lot of background noise that requires a lot of intense listening to make out what’s being said.” Over defense objection, the trial court admitted the tapes.

{¶ 109} To be admissible, a tape recording must be authentic, accurate, and trustworthy. State v. Rogan (1994), 94 Ohio App.3d 140, 148, 640 N.E.2d 535. The decision to admit tape recordings that are partly inaudible is a matter within the sound discretion of the trial court. State v. Coleman (1999), 85 Ohio St.3d 129, 141, 707 N.E.2d 476. Snodgrass, who was present at the April 15 meeting, authenticated tunnel tape 61 and interpreted its contents. Williams authenticated tunnel tape 32. Were had full opportunity to cross-examine Snodgrass and Williams about the conversations on the tapes. Under these circumstances, the trial court did not abuse its discretion in admitting the tapes despite the background noises and disjointed and multiple conversations. Moreover, we held that the same audiotapes were admissible in Robb, 88 Ohio St.3d at 72-73, 723 N.E.2d 1019.

{¶ 110} Were also argues that the trial court erred by allowing the jury to use transcripts as an aid in listening to the tunnel tapes. Hudson testified that state’s exhibits 6-A and 8-A are “fair, true and accurate copies of what is being said on the tape.” Hudson testified that investigators and prosecutors listened to the tapes and prepared the transcripts. Inmates Snodgrass, Williams, and David Lomache identified the voices on the tapes when the transcripts were prepared. The preparation of the transcripts was an ongoing, lengthy process that occurred throughout the investigation and the other hearings and trials.

{¶ 111} Trial counsel objected to the transcripts, state’s exhibits 6-A and 8-A, and argued that the transcripts did not accurately reflect what was said on the tapes. After the defense objection, the trial court had the court reporter listen to the tapes and prepare another transcript of them. The court reporter spent the weekend transcribing the tapes. On the following Monday, the court reporter stated that due to time constraints and equipment problems, she was unable to complete an accurate transcription of the tapes.

{¶ 112} Following his discussion with the court reporter, the trial judge ruled that state’s exhibits 6-A and 8-A could be used as listening aids. The trial court also stated that the jury would be instructed that the “evidence consists of the tapes themselves. The transcripts are provided to you only for the purpose of helping you understand the tapes, if you find they do help you. If you find there is a difference or discrepancy between the transcript and the tapes, you are to rely only on the tapes.” Such instructions were provided to the jury when they were presented with the tapes and transcripts.

{¶ 113} “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, quoting State v. Holmes (1987), 36 Ohio App.3d 44, 50, 521 N.E.2d 479. Moreover, providing a jury with a transcript as a listening aid is permissible when the trial court instructs the jury, as it did in this case, that the transcript is not evidence. State v. Mason (1998), 82 Ohio St.3d 144, 159, 694 N.E.2d 932.

{¶ 114} Hudson’s testimony established that the transcripts are fair and accurate renditions of the conversations on the tapes. The trial court repeatedly instructed the jury that the tapes were evidence and the transcripts were not. Were’s claim that there are material differences between the tapes and transcripts is not substantiated. He contends that there are differences because the transcripts have been constantly changed over a ten-year period of time, but he fails to identify any of those differences. We conclude that this claim lacks merit.

{¶ 115} Finally, Were argues that the trial court erred in admitting the two tunnel tapes, state’s exhibits 6 and 8, and a negotiation tape, state’s exhibit 7, because the inmate discussion on the tapes was hearsay. Were did not raise this issue in the court of appeals, and therefore waived all but plain error. Williams, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.

{¶ 116} Under Evid.R. 801(D)(2)(e), hearsay does not include a statement offered against a party that is made “by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy.” “The statement of a co-conspirator is not admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof.” State v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965, paragraph three of the syllabus. Evid.R. 802(D)(2)(e) does not require that explicit findings of the conspiracy be made on the record.

{¶ 117} The prosecution established that the Lucasville takeover involved a major conspiracy by inmate gang leaders. Williams testified about the takeover of L-Block, the kidnapping of Vallandingham, the inmate gangs involved in the riot, and the identities of the gang’s leaders, including Were. Hudson provided an in-depth overview of the riot and described how the leaders of three gangs were jointly involved during the negotiations. Thus, Hudson’s and Williams’s testimony provided the required preliminary prima facie showing of the conspiracy. Moreover, we held that similar testimony established such a conspiracy in Robb, 88 Ohio St.3d at 69, 723 N.E.2d 1019, and in State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 102-103. We reject proposition of law XIX.

{¶ 118} Defense’s excluded evidence. In proposition of law XX, Were argues that the trial court erred by excluding Aaron Jefferson’s testimony that Lavelle attempted to recruit Jefferson to kill Vallandingham. Were also argues that the trial court erred by excluding a negotiation tape that contained police discussions about Lavelle’s role in the riot.

{¶ 119} 1. Lavelle’s statements. During the defense case, Jefferson, a member of the Black Gangster Disciples, testified that Lavelle approached him about killing a corrections officer during the riot. The trial court sustained the state’s objection when trial counsel asked Jefferson to explain what Lavelle had said to him.

{¶ 120} At the conclusion of the defense case, trial counsel proffered the excluded testimony:

{¶ 121} “Mr. Wenke (defense counsel): Judge, I have one other proffer that I wanted to make * * * and that was in regard to the witness, Aaron Jefferson.

{¶ 122} “ * * *

{¶ 123} “The statement would have been from Lavelle, that he approached Aaron Jefferson and asked him about killing a CO [corrections officer] because of the spokesperson. He wanted him to be the BGD killer, which is Black Gangster Disciple. He refused.

{¶ 124} “A few hours later, he heard the announcement of the death. Lavelle would have been in charge of getting rid of the bloody clothes and weapons and giving fresh clothes and that he was going to burn the evidence.”

{¶ 125} The prosecutor informed the trial court that “Lavelle is up at Warren right now. I could have him down here at 1 o’clock.” The defense did not respond to the prosecutor’s offer, and Lavelle was not called as a witness.

{¶ 126} Were argues that Jefferson’s excluded testimony was admissible as statement against penal interest under Evid.R. 804(B)(3). In order for a declarant’s statement to qualify as an Evid.R. 804(B) exception to the hearsay rule, it must first be shown that the declarant is unavailable as a witness. See State v. Issa (2001), 93 Ohio St.3d 49, 58, 752 N.E.2d 904; State v. Burke (1995), 73 Ohio St.3d 399, 403, 653 N.E.2d 242. Were does not claim, and nothing in the record indicates, that Lavelle was unavailable as a witness. Indeed, the prosecutor informed the court that Lavelle could be brought to court that afternoon. Accordingly, Jefferson’s testimony about what Lavelle said to him was properly excluded.

{¶ 127} Were also argues that the exclusion of Lavelle’s statement denied him the due-process right to present a defense. This argument has no merit. At most, the excluded testimony showed that Lavelle wanted Jefferson to murder Vallandingham, but Jefferson refused to follow Lavelle’s orders. Thus, the excluded testimony provides no evidence that another person might have killed Vallandingham.

{¶ 128} 2. Negotiators’ audiotaped discussions. Were argues that the trial court erred by excluding police discussions about Lavelle’s role that were recorded on a negotiation tape. This issue was not raised in the court of appeals; therefore, this claim is waived absent plain error. Williams, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.

{¶ 129} Inmate Skatzes’s April 15 telephone conversation with police negotiators on negotiation tape 6 was presented during the state’s case. During Hudson’s cross-examination, trial counsel sought to play negotiation tape 6 in its entirety, including internal discussions among the police about the Muslims and Lavelle. Trial counsel stated that the police comments show that Lavelle was the person referred to as the hardliner on the tunnel tapes. The excluded comments include “wonder if that’s just a bunch a blow about the Muslim stuff,” “try to put it off on the Muslims,” and “it comes right back to Lavelle again; it sounds just like him.” The state objected to the introduction of taped segments of the police negotiators’ internal discussions. The trial court ruled that the entire version of negotiation tape 6 could be played except for the police negotiators’ internal discussions.

{¶ 130} We find that no plain error occurred. Were has failed to establish the relevance of the negotiators’ fragmented and speculative comments about Lavelle. Thus, we reject proposition of law XX.

{¶ 131} Sufficiency and manifest weight of the evidence. In proposition of law XVII, Were argues that his convictions for the aggravated murder and kidnapping of Vallandingham were based on insufficient evidence and were against the weight of the evidence. Pursuant to R.C. 2953.02, we can overturn a conviction as being against the manifest weight of the evidence in a capital case only when the crime was committed after January 1, 1995. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 134. Because the crimes in this case occurred before 1995, we will not address Were’s weight-of-the-evidence arguments. Rather, we will consider these arguments in addressing the sufficiency of the evidence.

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

{¶ 133} The state presented extensive evidence showing that Were kidnapped Vallandingham. Macko testified that he observed Were and other inmates break down the bathroom door and sei