State v. Hale (119 Ohio St. 3d 118, 2008)

Moyer, C.J.

{¶ 1} On June 21, 2004, defendant-appellant Delano Hale Jr. killed Douglas Green by firing four bullets into his head. He then stole Green’s Visa card and SUV. Hale was convicted of aggravated murder with an aggravated-robbery specification and was sentenced to death.

{¶ 2} In 2003, Hale was released from prison after serving 12 years of a sentence for aggravated robbery and carrying a concealed weapon. At first, he lived with his father, but left in February 2004. That same month, he obtained a telemarketing job with a base pay of $7.64 per hour. On March 9, 2004, Hale told his sister Lashayla that he had a gun.

{¶ 3} By June 2004, Hale was in financial difficulty. His bank account had a negative balance during all of June 2004. On June 8, he moved into Room 260 of the Lake Erie Lodge, a motel in Euclid. He initially rented the room for a week. He renewed his stay for another week on June 15, renewed for a single night on June 22, and checked out on June 23.

{¶ 4} On June 23, 2004, an employee of the lodge found a human corpse wrapped in plastic garbage bags in Room 231, a vacant room being used for storage. He notified the management, who summoned the police. The body was identified as that of Douglas Green, a local voice teacher, professional singer, and music producer.

{¶ 5} An autopsy disclosed that Green had been shot four times in the right side of the head. Two shots went into Green’s right ear, one entered his skull directly behind the ear, and one entered about two and one-half inches behind the ear. Three of the four shots entered Green’s brain. Any one of these three wounds would have immediately stopped any voluntary movement on Green’s part. Three of the wounds were contact wounds, meaning that the shots were fired from no more than an inch away. Gunshot residue was found on Green’s right hand, but not his left, an indication that Green’s right hand was in close proximity to the gun when it was fired.

{¶ 6} Green’s bank statement shows that at 12:07 p.m. on June 22, 2004, a person using Green’s Visa card made a $55.15 purchase at a Giant Eagle store in Willoughby Hills. Giant Eagle records show that the purchaser bought garbage bags, cleaning supplies, beer, and cigarettes in that transaction. Green did not smoke or drink beer. The purchaser also used a Giant Eagle discount card registered to Hale’s sister and deceased mother.

{¶ 7} Hale’s friend James Hull saw Hale driving a Explorer SUV on two occasions after Green’s murder, including on June 23, 2004, when Hull helped Hale move out of the lodge. Hull later identified photographs of Green’s SUV as the one Hale had been driving.

{¶ 8} On June 28, 2004, at 2:30 p.m., Detective Sergeant Robert Pestak of the Euclid police found Hale inside Green’s Ford Explorer SUV, parked near Hale’s workplace in Cleveland. Pestak, supported by Cleveland police units, arrested Hale.

{¶ 9} When told that he was being arrested for Green’s murder, Hale said, “I didn’t kill anybody.” Sergeant Pestak administered Miranda warnings to Hale. While being led to a cruiser, Hale again said, “I didn’t kill anybody.”

{¶ 10} Hale was taken to the Euclid police station and placed in a cell. After approximately five hours, Hale was removed from the cell and brought to the detective bureau. There, Detective Sergeant James Baird completed a personal-information form on Hale and presented it to Hale for his signature. Hale signed the form using his left hand, but Baird noted that Hale had difficulty writing with that hand.

{¶ 11} Baird then administered Miranda warnings to Hale. Hale signed a Miranda waiver form, and this time, Hale used his right hand. Baird proceeded to interrogate Hale. During the interrogation, Baird told Hale that Green “was possibly bisexual” and that “if this was a case of self-defense, then that would be understandable if he felt that Mr. Green had attacked him.”

{¶ 12} Hale wrote out and signed a four-page statement. In his statement, Hale claimed that he had met Green in May 2004 when Green, identifying himself as a record producer, asked Hale whether he had considered singing professionally and gave Hale his cell-phone number. According to Hale, he later called Green, and Green agreed to go to Hale’s motel room to hear him sing.

{¶ 13} According to Hale, they had arranged to meet at the Underground Railroad, a bar near the lodge. Hale claimed that he and Green had met at the Underground Railroad on Monday, June 21, 2004. (However, according to the owner of the Underground Railroad, that establishment was closed on Mondays.) They then went to Hale’s room. According to Hale, Green had a small gun in his shoulder bag and displayed it to Hale as they entered the room.

{¶ 14} Hale claimed that he sang for Green, then went to the bathroom. Hale claimed that when he returned, he found Green lying on the bed, nude. Hale told Green to leave. According to Hale, Green grabbed Hale’s wrists and “laid his head on [Hale’s] crotch” while making “slurping” noises.

{¶ 15} Hale claimed that he then freed his right hand, reached into Green’s bag, pulled out the gun, held it to Green’s head, and cocked it. According to Hale, Green said, “It isn’t loaded, so why don’t you give me some of that dick.”

{¶ 16} Hale fired. Green “reeled back,” but still gripped Hale’s left wrist, according to Hale. Hale cocked the gun and fired again. He then backed away from Green, took some bullets from Green’s bag, and reloaded. According to Hale, Green then tried to stand up. Hale fired “once or twice” more.

{¶ 17} According to Hale, he considered calling an ambulance or the police, but decided not to after he “thought about * * * [his] record” and “the life [he] was attempting to build.” Instead, he disposed of the gun and Green’s belongings. Then he went out to buy cleaning supplies to clean up Green’s blood, using Green’s credit card because Hale’s “funds were low.” The next day, he wrapped Green’s body in garbage bags, also purchased with Green’s credit card, and dragged the body to a storage room.

{¶ 18} Hale was indicted on two counts of aggravated murder: one under R.C. 2903.01(A) and one under R.C. 2903.01(B). Each count carried a felony-murder death specification alleging murder during a robbery. Other counts charged aggravated robbery, tampering with evidence, and having a weapon while under disability. Hale argued self-defense, contending that Green had sexually assaulted him and that Hale had shot him to keep from being raped.

{¶ 19} On June 7, 2005, Hale was convicted of all counts and specifications, and he was sentenced to death for the aggravated murder of Green. He appeals his convictions and death sentence, raising 22 propositions of law for our review.

I. Miranda Issues

{¶ 20} In his third proposition of law, Hale contends that the trial court erred by denying his motion to suppress the oral and written statements he gave Sergeant Baird on June 28, 2004.

{¶ 21} Sergeant Baird initially questioned Hale in order to obtain his personal information before administering Miranda warnings. Only after giving the Miranda warnings did Baird interrogate Hale about the murder. In response to Baird’s post-Miranda interrogation, Hale gave Baird both oral and written statements admitting that he had killed Green and setting forth his version of the killing.

{¶ 22} Hale argues that because Baird had asked him questions before giving Miranda warnings — even though the pre-Miranda questions did not deal with the murder in any way — his oral and written statements about the murder should have been suppressed.

{¶ 23} The record of the suppression hearing establishes the following sequence of events:

{¶ 24} Sergeant Pestak arrested Hale at approximately 2:30 p.m., June 28, and informed Hale of his Miranda rights, which Sergeant Pestak recited from memory. Hale was then driven to the Euclid police station, arriving at 3:35 p.m. Before his shift ended at 5:00 p.m., Sergeant Pestak asked Sergeant Baird to “get a personal history” from Hale.

{¶ 25} Pestak’s request referred to the standard personal-history form used by the Euclid detective bureau. The form contains such information as the arrestee’s name, address, age, phone number, Social Security number, physical description, employer, education, and the names of his immediate family members. The detective bureau routinely obtains this information from every felony suspect and uses it to complete the form. The bureau gathers this information for police records and to verify the arrestee’s identity.

{¶ 26} At 7:50 p.m., Baird had Hale escorted from his cell to the detective bureau. For 20 to 25 minutes, Baird questioned Hale to obtain information for the personal-history form.

{¶ 27} When questioning finished, Baird told Hale that Baird “was going to talk to him briefly about the crime that he was being charged with, and that before [Baird] asked him any questions or talked to him at all about it, that [Baird] had to advise him of his rights.” Baird asked Hale to read a form containing the Miranda warnings. Baird then read the Miranda form aloud to him. Baird asked if Hale understood his rights. Hale said yes and signed the form, acknowledging that he understood them. Baird then showed Hale the waiver portion of the Miranda form and told Hale that if he wanted to talk to Baird, he needed to sign the waiver. Hale signed the Miranda waiver at 8:22 p.m.

{¶ 28} Baird explained to Hale that he was under arrest for murder, then began what Baird described as a “soft interrogation.” Baird discussed the case with Hale for about 20 minutes. Hale then orally stated his version of the events of June 21. When Hale finished, Baird said, “I’d really like to get this on paper so we can have your side of the story.” At 8:53 p.m., Baird gave Hale a statement sheet and asked him to write his statement in his own words. Over the next two hours, Hale wrote out a four-page statement, which was ultimately introduced at trial.

{¶ 29} Hale was given Miranda warnings twice on June 28: first by Pestak at 3:00 p.m., during his arrest, and then by Baird at approximately 8:15 p.m., just before he began to interrogate Hale about the murder. Hale contends that neither set of warnings was effective and that his statement should therefore have been suppressed.

{¶ 30} We need not determine whether Pestak’s warnings were still effective by the time Baird interrogated Hale. See generally State v. Roberts (1987), 32 Ohio St.3d 225, 232, 513 N.E.2d 720. It is undisputed that Baird administered full Miranda warnings and obtained an express, written waiver immediately before he interrogated Hale about Green’s murder.

{¶ 31} Hale argues that the Miranda warnings given by Baird were ineffective and should be ignored because Baird questioned him about his personal history before giving those warnings. Because Baird’s warnings did not precede all questioning, including the personal-history questions, Hale contends that they were ineffective for any portion of the questioning.

(¶ 32} We disagree. Baird was not required to preface the personal-history questions with Miranda warnings. The personal-history questions were routine booking questions, and the requirement that police administer Miranda warnings before questioning a suspect in custody does not apply to routine booking questions.

{¶ 33} Routine booking questions are questions asked in order “to secure the ‘biographical data necessary to complete booking or pretrial services.’ ” Pennsylvania v. Muniz (1990), 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528, quoting United States v. Horton (C.A.8, 1989), 873 F.2d 180, 181, fn. 2. The personal-history questions in this case clearly fit within that definition. The information elicited for the personal-history form was routinely requested for record-keeping and identification purposes. Moreover, the personal-history form was not “designed to elicit incriminatory admissions.” Id. at 602, 110 S.Ct. 2638, 110 L.Ed.2d 528, fn. 14. Hence, the personal-history questions were “reasonably related to the police’s administrative concerns.” Id. at 601-602, 110 S.Ct. 2638, 110 L.Ed.2d 528.

{¶ 34} Thus, no reason exists to suppress Hale’s statement. Baird was not required to administer Miranda warnings any sooner than he did. By giving complete Miranda warnings and obtaining an express waiver before asking Hale any questions about the crime, Baird complied fully with the relevant constitutional requirements. That fact distinguishes this case from cases such as Oregon v. Elstad (1985), 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, and Missouri v. Seibert (2004), 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643, in which police first interrogated suspects about their crimes, then administered Miranda warnings, then engaged in further interrogation. Cf. Seibert, 542 U.S. at 616, 124 S.Ct. 2601, 159 L.Ed.2d 643 (plurality opinion) (postwarning interrogation was “a mere continuation” of prewarning interrogation) and 542 U.S. at 622, 124 S.Ct. 2601, 159 L.Ed.2d 643 (Kennedy, J., concurring) (postwarning interrogation was “related to the substance of [the suspect’s] prewarning statements”). We therefore overrule Hale’s third proposition of law.

II. Character Evidence (Specific Instance of Victim’s Conduct)

{¶ 35} In section (F) of his eighth proposition of law, Hale argues that the trial court erred by partly excluding defense testimony about a sexual assault Green allegedly committed in 1998.

{¶ 36} At trial, the defense claimed that Hale’s killing of Green constituted lawful self-defense because Green had attempted to rape Hale. The state responded to this claim by calling witnesses to testify about Green’s peaceful character. See Evid.R. 404(A)(2) (victim’s peaceful character admissible to rebut evidence that victim was first aggressor). In response, the defense adduced the testimony of Johnny A. Smith that in 1998, Green had performed oral sex on him, forcibly and against his will.

{¶ 37} The state objected to Smith’s testimony. Citing State v. Barnes (2002), 94 Ohio St.3d 21, 759 N.E.2d 1240, the state argued that the 1998 sexual assault could not be used to prove Hale’s claim of self-defense. The defense argued that Barnes was inapplicable because the 1998 assault was being introduced only to rebut the state’s evidence of Green’s peaceful character, not to prove Hale’s self-defense claim.

{¶ 38} The trial court agreed with the state that Barnes barred evidence about the 1998 sexual assault. Nevertheless, the trial court permitted Smith to testify that the assault had taken place, because Sergeant Baird had already mentioned the 1998 sexual-assault accusation in his testimony about Hale’s interrogation. However, the trial court limited Smith’s testimony to information the jury had already heard: that Green had sexually assaulted Smith in 1998 and that the assault had involved oral sex.

{¶ 39} On direct examination, the defense asked Smith whether Green had been “restraining” him during the assault. The state’s objection to this question was sustained. Hale claims that the jury should have been allowed to hear Smith’s answer.

{¶ 40} The parties’ arguments address the applicability of our holding in State v. Barnes: “A defendant asserting self-defense cannot introduce evidence of specific instances of a victim’s conduct to prove that the victim was the initial aggressor.” Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240, syllabus (applying Evid.R. 405(B)). As he did at trial, Hale argues that Barnes is inapplicable, because Smith’s testimony was not offered to prove that Green was the initial aggressor, but rather “to rebut the good character evidence the State had presented.”

{¶ 41} In our view, it does not matter whether the proffered testimony was offered to rebut the state’s character evidence, as Hale suggests, or to prove that Green was the aggressor, as the state argues. Under Evid.R. 405, the testimony was inadmissible for either purpose.

{¶ 42} Evid.R. 405 governs methods of proving character, including the use of specific instances of conduct. Evid.R. 405 authorizes use of specific instances in only two situations: on cross-examination of the other party’s character witnesses, Evid.R. 405(A), and in cases where “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Evid.R. 405(B).

{¶ 43} Under our holding in Barnes, Smith’s testimony could not be used in direct support of Hale’s self-defense claim, i.e., to prove that Green was the aggressor on June 21, 2004, because Evid.R. 405(B) authorizes specific instances of a person’s conduct only when the person’s character “is an essential element of a charge, claim, or defense” and the victim’s character is not an essential element of a self-defense claim.

{¶ 44} If we accept Hale’s claim that he offered Smith’s testimony not to prove that Green was the aggressor but merely to rebut the state’s evidence of Green’s character, then Evid.R. 405(A) would apply, and Barnes would be inapplicable. But Evid.R. 405(A) does not authorize Smith’s testimony either. Nothing in Evid.R. 405(A) allows a party to use extrinsic evidence of specific instances of a person’s conduct to rebut the other party’s evidence regarding that person’s character. Accord United States v. Benedetto (C.A.2, 1978), 571 F.2d 1246, 1249-1251; United States v. Pantone (C.A.3, 1979), 609 F.2d 675, 680; State v. Bourgeois (Me.1994), 639 A.2d 634, 636-637; People v. Champion (1981), 411 Mich. 468, 471, 307 N.W.2d 681; Spadafina v. State (Tenn.Crim.App.2000), 77 S.W.3d 198, 212; Daggett v. State (Tex.Crim.App.2005), 187 S.W.3d 444, 454, fn. 24.

{¶ 45} Hale also argues that, pursuant to Evid.R. 404(B), the proffered testimony was admissible as “other acts” evidence for noncharacter purposes. He argues that the testimony would have provided evidence of Green’s intent to sexually assault Hale and of Green’s modus operandi in committing such assaults. But Hale did not offer Smith’s testimony for those purposes at trial. He offered it only on the issue of Green’s character. Hence, he waived any argument for admissibility based on Evid.R. 404(B). See Pantone, 609 F.2d at 682.

{¶ 46} Finally, Hale claims that the exclusion of Smith’s testimony denied him due process. We disagree. Due process requires only “that criminal defendants be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta (1984), 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413. Nevertheless, “[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois (1988), 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798.

{¶ 47} In United States v. Bautista (C.A.10, 1998), 145 F.3d 1140, the court rejected a due process claim on nearly identical facts. Bautista, charged with murder, claimed to have killed the victim “in the heat of passion upon adequate provocation.” The claimed provocation was that the victim had made a homosexual advance at Bautista. The defense proffered the testimony of a witness who claimed that the victim had once made such an advance at him. The trial court excluded this testimony, and the defendant was convicted. Id. at 1145, 1151.

{¶ 48} The court of appeals affirmed, noting that “the right to present defense witnesses is not absolute. A defendant must abide [by] the rules of evidence and procedure.” Id. at 1151-1152. Thus, although evidence of the victim’s aggressive character was admissible to show that he was the aggressor, the defense was not entitled to use specific instances of the victim’s conduct to prove his aggressive character. Id. at 1152. Moreover, the trial court had allowed the defendant “to testify that he feared [the victim’s] aggressive homosexual advances and that he had killed [the victim] in the heat of passion upon adequate provocation. In fact, in his confession, which he relied upon, that is the theory the jury heard.” Id. Thus, the trial court “did not prevent [the defendant] from presenting a defense.” Id.

{¶ 49} Like Bautista, Hale was able to present his self-defense claim to the jury by relying on his confession. Indeed, the trial court gave Hale greater leeway than Bautista received. Smith was permitted to testify about the alleged sexual assault by Green, notwithstanding Evid.R. 405. He was prevented only from stating that Green had restrained him. The trial court’s (partial) enforcement of Evid.R. 405 did not deny Hale a “meaningful opportunity to present a complete defense” and hence did not violate Hale’s right to due process. Trombetta, 467 U.S. at 485, 104 S.Ct. 2528, 81 L.Ed.2d 413. We overrule section (F) of Hale’s eighth proposition of law.

III. Other Evidentiary Issues

A. Expert Testimony

{¶ 50} In his tenth proposition of law, and in section (E) of his eighth proposition of law, Hale contends that the trial court erred by allowing prosecution witnesses Curtiss Jones and Michael Grida to give expert testimony.

{¶ 51} Curtiss Jones was the supervisor of the trace-evidence department of the Cuyahoga County coroner’s office. He testified regarding blood spatter found in Hale’s motel room. Hale argues that Jones had insufficient practical experience to qualify as an expert on blood-spatter evidence.

{¶ 52} Hale did not object at trial to the court’s recognizing Jones as an expert. Hence, he has waived this issue unless he can demonstrate plain error.

{¶ 53} An alleged error is plain error only if the error is “obvious,” State v. Sanders (2001), 92 Ohio St.3d 245, 257, 750 N.E.2d 90, and “but for the error, the outcome of the trial clearly would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.

{¶ 54} No plain error occurred here. Evid.R. 702(B) provides that a witness may qualify as an expert by reason of his or her specialized knowledge, skill, experience, training, or education. Neither special education nor certification is necessary to confer expert status on a witness. The witness offered as an expert need not have a complete knowledge of the field in question, as long as the knowledge he or she has will aid the trier of fact. State v. Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128.

{¶ 55} Jones testified that he has a master’s degree in forensic science. Additionally, he underwent 48 hours of instruction in the field of blood-spatter analysis, had passed two proficiency tests in that field, and had testified three or four times previously on blood-spatter evidence. Jones testified that he deals with blood-spatter evidence “every day in terms of looking at evidence.” Examining items “for the presence of biological fluid such as blood” is “one of the main things” he does, and when he does so, he applies his knowledge of blood-spatter analysis. In light of Jones’s training and experience, the trial court did not commit any obvious error in permitting him to testify as an expert on blood spatter. Cf. State v. Wogenstahl (1996), 75 Ohio St.3d 344, 362, 662 N.E.2d 311. Hence, no plain error exists, and this issue is waived.

{¶ 56} Hale also questions the reliability of blood-spatter analysis in general. However, we have recognized that blood-spatter analysis is a proper subject for expert testimony. State v. Biros (1997), 78 Ohio St.3d 426, 452, 678 N.E.2d 891.

{¶ 57} Michael Grida was a Euclid police detective. Using Hale’s bank statements and ATM receipts, Grida testified that Hale had carried a negative bank balance in June 2004, the month of the murder. He also reconciled Hale’s bank statement with an ATM receipt showing a negative balance of $1,099.84 in Hale’s account.

{¶ 58} Hale objected to some of Grida’s testimony, but not on the ground that Grida lacked expert qualifications. Hence, this issue is waived absent plain error. No plain error occurred here. Hale’s financial situation gave him a motive for robbery, but the aggravated robbery itself was firmly established by other evidence. In his statement to the Euclid police, Hale admitted stealing Green’s SUV and credit card. Hale’s friend James Hull saw Hale in possession of Green’s SUV after the murder, and police found Hale inside Green’s SUV when they arrested him. Green’s bank records confirmed that Green’s Visa card was used on June 22. Giant Eagle records provided additional evidence that Hale had used the Visa card at the Giant Eagle store.

{¶ 59} Hale’s tenth proposition of law and section (E) of his eighth proposition of law are overruled.

B. Prejudicial Evidence

{¶ 60} In section (B) of his eighth proposition of law, Hale contends that Robert Stewart gave inflammatory, irrelevant testimony. Stewart, a maintenance worker at the lodge, had seen Green’s body in Room 281. The prosecutor asked him how that affected his emotions. Over a defense objection, the trial court permitted Stewart to answer. Stewart testified that seeing the body “shook [him] up pretty good” and that he “didn’t work much the rest of the day.”

{¶ 61} Because Stewart’s emotional reaction to seeing the victim’s body was irrelevant, the trial court erred by overruling Hale’s objection. However, Stewart was a minor witness, and his testimony that seeing the body upset him was not inflammatory. The trial court’s error was harmless.

{¶ 62} In section (C) of his eighth proposition of law, Hale contends that the testimony of Ricardo Cuffari and Vivian Wilson Jr. amounted to improper “victim-impact evidence.” In response to Hale’s self-defense claim, the state called Cuffari and Wilson, two friends of Green’s, to testify that Green had a peaceful character. Hale claims that their testimony went beyond Green’s character for peacefulness.

{¶ 63} First, Hale complains that Cuffari testified about Green’s “business practices.” Cuffari testified that it was not Green’s “normal practice” to “audition” a potential student before agreeing to teach him. This testimony was relevant because it contradicted Hale’s account of why Green was in Hale’s hotel room.

{¶ 64} Hale also complains that Cuffari testified about Green’s work in the music industry. Cuffari, who owned a recording and voice-coaching studio, testified that he had met Green after hearing him sing professionally; Green later became a coproducer at Cuffari’s studio. Their relationship was originally a professional one, but they quickly became friends. This testimony was relevant to establish Cuffari’s relationship with Green, and thus his knowledge of Green’s character. “[T]o introduce opinion evidence the offering party must qualify the character witness by laying a foundation showing that the witness is sufficiently acquainted with the accused or victim to have formed an opinion about that person’s character.” 1 Gianelli & Snyder, Evidence (2d Ed.2001) 253, Section 405.4.

{¶ 65} Finally, Hale argues that Cuffari’s testimony that he and Green had prayed together should have been excluded. The prosecutor asked Cuffari, “[LJeading up to the point in time when Doug died, how would you describe the level of friendship between the two of you?” Cuffari replied: “Doug was probably one of my best friends at that time. * * * We called each other a lot on the phone. If there was problems on his side or my side, I would call for prayers and vice versa. When my mom was passing away he came to the hospital and prayed over my mom. He also sang in her funeral so you could see how direct it was. And he was a very, very close and dear friend.”

{¶ 66} Cuffari briefly mentioned prayers as part of his response to the prosecutor’s question about the “level of friendship” between Cuffari and Green. In this context, Cuffari was simply elaborating on Green’s status as “one of [his] best friends,” thus laying a foundation to establish his knowledge of Green’s character.

{¶ 67} Hale complains that Vivian Wilson testified that Green did not smoke or drink beer. Wilson’s testimony was relevant to the aggravated-robbery charge, because Green’s Visa card was used at the Giant Eagle store to buy beer and cigarettes.

{¶ 68} Wilson also testified that the last time he saw Green, Green had greeted him by saying, “[G]ive me some love * * On that occasion, Wilson had asked Green to sing “Happy Birthday” for Wilson’s son the next day. This testimony illustrated the close relationship between Green and Wilson and was thus relevant to Wilson’s knowledge of Green’s character. We reject section.(C) of Hale’s eighth proposition of law.

{¶ 69} In section (D) of his eighth proposition of law, Hale contends that State’s Exhibit 151, a photograph of Green, was irrelevant and misleading. The photograph was taken from the cover of a compact disc containing songs by Green. In the photo, Green wears rings on both hands. The state introduced the photo to show that Green owned and wore jewelry, thus suggesting robbery as Hale’s motive to kill him.

{¶ 70} Hale argues that the photo is misleading because it does not specifically show Green’s appearance “at the time he met Hale at his motel room.” We find this contention specious. Evid.R. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This test is a broad one, and the photo clearly satisfies it. See 1 McCormick, Evidence (2006) 733-735, Section 185.

{¶ 71} Moreover, the photo created no danger of unfair prejudice; hence, no cogent argument exists to exclude the photo under Evid.R. 403(A). Hale offers no explanation to support his assertion that the photo “amounted to victim impact” evidence. Cf. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 57 (predeath photo of victim admissible). We reject section (D) of Hale’s eighth proposition of law.

C. Gruesome Photographs

{¶ 72} In his ninth proposition of law, Hale contends that he was prejudiced by the admission of gruesome and cumulative autopsy and crime-scene photographs. See generally State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267.

{¶ 73} State’s Exhibits 27 and 28, although they are autopsy photographs, are not gruesome. Neither are the photographs of Green’s body wrapped in opaque plastic bags, or those showing the bags after their removal from the body. Likewise, the crime-scene photographs are not gruesome, even though a few show small bloodstains on carpets, furniture, or walls. Thus, although some of these photos are cumulative, Morales does not apply to them.

{¶ 74} Six autopsy photos showing Green’s head wounds can be characterized as gruesome. However, State’s Exhibits 32, 33, and 34 are not repetitious or cumulative. Each one shows something the other does not. Exhibit 33 shows “fouling” around one of the bullet wounds that indicates it was a contact wound. Exhibit 32 does not show fouling, but does depict the probes that the coroner inserted into the bullet holes to show the angles of entry. Exhibit 34 also shows the probes, but from an angle different from that in Exhibit 32.

{¶ 75} On the other hand, State’s Exhibit 31 appears to show nothing not shown by Exhibit 33, and Exhibit 30 appears to be merely a closer view of Exhibit 29. Nevertheless, we find no prejudice and no reversible error in the admission of two cumulative photographs. Cf. State v. Jalowiec (2001), 91 Ohio St.3d 220, 230, 744 N.E.2d 163 (cumulative effect of several repetitive autopsy photographs was harmless). We therefore overrule Hale’s ninth proposition of law.

TV. Jury Issues

A. Life Qualification

{¶ 76} In his fifth proposition of law, Hale claims that the trial judge conducted voir dire in a one-sided, and therefore unfair, manner. According to Hale, the judge death-qualified each prospective juror without any request by the prosecution, but he did not similarly “life-qualify” each prospective juror — i.e., he did not ask those jurors questions to determine whether they would automatically vote for the death penalty. See generally Morgan v. Illinois (1992), 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492. Hale alleges that “the trial court failed to ask life-qualifying questions of at least 28 prospective jurors.”

{¶ 77} Crucially, Hale does not contend that the trial judge prevented defense counsel from life-qualifying the jurors. Instead, he argues that “the trial court’s conduct of voir dire was biased” because the judge asked death-qualifying questions himself, but left it to defense counsel to ask life-qualifying questions.

{¶ 78} Hale has failed to preserve his claim that the trial judge was not impartial. Such claims must be raised by filing an affidavit of disqualification with the chief justice of this court. Hale did file such an affidavit in this case, but that affidavit made no allegation concerning the conduct of the trial judge during voir dire. See In re Disqualification of Ambrose, 110 Ohio St.3d 1220, 2005-Ohio-7154, 850 N.E.2d 722.

{¶ 79} Moreover, the claimed error does not reach the level of plain error. In the first place, the record shows that the trial judge asked numerous prospective jurors whether they could consider mitigating factors or whether they would automatically vote for a death sentence. In many cases, the judge asked both questions.

{¶ 80} Second, the trial court had no obligation to personally life-qualify the jurors. State v. Stojetz (1999), 84 Ohio St.3d 452, 705 N.E.2d 329, syllabus; State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 164-167. The fact that the judge did ask death-qualifying questions did not create any such obligation. The fact remains that the trial judge did not prevent defense counsel from asking such questions, and counsel in fact did ask such questions without hindrance. Hale provides no support for his assertions that the trial judge’s method of proceeding caused the seating of a “death-prone jury.” We overrule Hale’s fifth proposition of law.

B. Juror Misconduct/Misunderstanding

{¶ 81} In his sixth proposition of law, Hale contends that the jurors did not understand the concept of aggravating circumstances and that they committed “juror misconduct” by considering nonstatutory aggravating circumstances.

{¶ 82} Both claims are based solely on statements that two jurors made on voir dire. In explaining that he was not opposed to capital punishment, one juror stated: “I’m assuming that the aggravated circumstances would mean like something like extreme brutality * * Another juror said she “would have to decide by what was presented as far as the reason or the cause of death, how it was done, why it was done.”

{¶ 83} These statements, made on voir dire — before the jury had even been selected, much less formally instructed as to the meaning of aggravating circumstances — cannot support an inference that the jurors either misunderstood or disobeyed the instructions they later received in the penalty phase. We overrule Hale’s sixth proposition of law.

C. Failure to Excuse Jurors for Cause

{¶ 84} In his seventh proposition of law, Hale contends that three prospective jurors should have been excused for cause.

{¶ 85} Prospective juror No. 33 stated early in her voir dire that a defendant who took a life should get death and that she did not think she could consider a life sentence. But in later questioning, she retreated from that position. She ultimately abandoned it altogether, affirming that she could set her personal views aside and consider mitigating factors in accordance with the trial court’s instructions. Hale challenged juror No. 33 for cause as an automatic-death-penalty juror, but the trial court overruled his challenge. The defense later eliminated this juror with a peremptory challenge.

{¶ 86} No Sixth Amendment violation took place, because juror No. 33 ultimately did not sit on the jury. “So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Ross v. Oklahoma (1988), 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80.

{¶ 87} As a matter of state law, we have “recognized that where the defense exhausts its peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause in a criminal ease may be prejudicial.” State v. Cornwell (1999), 86 Ohio St.3d 560, 564, 715 N.E.2d 1144. However, “[a] defendant in a criminal case cannot complain of prejudicial error in the overruling of a challenge for cause if such ruling does not force him to exhaust his peremptory challenges.” (Emphasis added.) State v. Eaton (1969), 19 Ohio St.2d 145, 48 O.O.2d 188, 249 N.E.2d 897, paragraph one of the syllabus, vacated in part by Eaton v. Ohio (1972), 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750. Thus, “[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is seated.” (Emphasis added.) State v. Tyler (1990), 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576.

{¶ 88} In this case, Hale did expend a peremptory challenge on juror No. 33, but he used only five of his allotted six peremptories. Thus, the trial court did not force Hale to exhaust his peremptories when it overruled his challenge to juror No. 33. That ruling was therefore nonprejudicial.

{¶ 89} Jurors No. 4 and 5 served on the jury. But Hale waived any objection to their service. First, he declined to challenge either one for cause. Second, he did not exhaust his peremptories, and he thereby “acquiesced in the jury that was finally selected.” State v. Carter (1970), 21 Ohio St.2d 212, 214, 50 O.O.2d 446, 256 N.E.2d 714; see also State v. Stallings (2000), 89 Ohio St.3d 280, 288, 731 N.E.2d 159. Finally, defense counsel expressly stated that they were satisfied with the jury. See Eaton, 19 Ohio St.2d at 149, 48 O.O.2d 188, 249 N.E.2d 897.

{¶ 90} The trial court did not commit plain error in failing to excuse jurors No. 4 and 5 sua sponte. The record does not show that they were automatic-death-penalty jurors. Juror No. 4 thought he could consider all sentencing options. He agreed that the death penalty is “for a very few select people” and should not be imposed on all murderers without regard to mitigating circumstances.

{¶ 91} Juror No. 5 thought that sex murderers and child murderers should be executed and that in cases such as Charles Manson’s, “you really want to see that person hang.” Otherwise, she stated, it depended on the individual case. These statements in no way suggest that juror No. 5 would vote automatically for a death sentence in this case.

{¶ 92} Indeed, juror No. 5 appeared uncertain that she could sign a death verdict and was reluctant to answer that question without knowing the circumstances of the case. She understood that the death penalty “is reserved for only a few.” She said that she could consider mitigating factors and would consider all sentencing options. She said, “I may not vote for the death penalty in this instance. I might think something lesser would be appropriate.”

{¶ 93} Hale has waived his claims with respect to jurors No. 4 and 5, and the trial court did not commit plain error in allowing them to sit. We therefore overrule Hale’s seventh proposition of law.

V. Trial-Administration Issues

A. In Camera Inspection of Statements

{¶ 94} Crim.R. 16(B)(1)(g) provides for the in camera inspection of a witness’s written or recorded out-of-court statement to determine whether the statement is inconsistent with the witness’s testimony (in which case it may be used in cross-examining the witness). Under the rule, counsel for both parties “must be given the opportunity to: (1) inspect the statement personally; and (2) call to the court’s attention any perceived inconsistencies between the testimony of the witness and the prior statement.” State v. Daniels (1982), 1 Ohio St.3d 69, 1 OBR 109, 437 N.E.2d 1186, syllabus. In his first proposition of law, Hale contends that his trial counsel were not allowed to participate in the trial court’s in camera review of several witnesses’ prior statements.

{¶ 95} Hale’s strongest claim involves a police report written by Sergeant Baird. At a pretrial suppression hearing, the trial court reviewed Baird’s report, but Hale’s counsel were not allowed to participate in that review.

{¶ 96} However, the defense failed to preserve this issue. “[0]nce the trial court concluded that there were no inconsistencies between the statements and trial testimony * * *, defense counsel did not ask to review the statements or object to the procedure employed by the court * * *. Defense counsel merely accepted the trial court’s decision that there were no inconsistencies * * *.” State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 48. Thus, Hale “has waived all but plain error in regard to this issue.” Id.

{¶ 97} There was no plain error here, because Hale “has failed to identify any inconsistencies that would warrant reversal.” Id. at ¶ 49. The “inconsistencies” mentioned by Hale are actually details of the interrogation to which Baird testified but did not mention in his report. However, “[t]he fact that details may be lacking in a pretrial statement does not mean that inconsistencies exist for purposes of Crim.R. 16(B)(1)(g).” Id.

{¶ 98} Hale also claims that his counsel were not allowed to participate in the inspection of statements by James Hull, Hale’s sister Lashayla, and Jude Nilsson, a carpenter at the Lake Ohio Lodge in 2004, but these claims are far less substantial. First, the record does not show that defense counsel were prevented from participating in the in camera inspection of statements by these three witnesses, and we decline to speculate on the matter. Thus, with regard to those statements, the factual premise for Hale’s claims simply does not exist.

{¶ 99} Second, any issue was waived at trial, for the defense neither objected to the inspection procedure nor asked to review the statements. Id. at ¶ 48. And there was no plain error. As to Hull’s statements, the claimed “inconsistencies” are again merely details that Hull mentioned in his testimony but that do not appear in his pretrial statements. Id. at ¶ 49. As for Lashayla Hale and Jude Nilsson, Hale fails to identify any purported inconsistencies between these witnesses’ statements and their testimony. Hale’s first proposition of law is ' overruled.

B. Proceedings in Defendant’s Absence

{¶ 100} In his fourth proposition of law, Hale contends that trial proceedings were conducted in his absence. An accused has a fundamental right to be present at all critical stages of his criminal trial. However, “the 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.” (Emphasis added.) Snyder v. Massachusetts (1934), 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674, overruled on other grounds by Malloy v. Hogan (1964), 378 U.S. 1, 17, 84 S.Ct. 1489, 12 L.Ed.2d 653. The question is whether his presence has a “reasonably substantial” relationship to “the fullness of his opportunity to defend against the charge.” Id. at 105-106, 54 S.Ct. 330, 78 L.Ed. 674.

{¶ 101} On May 12, 2005, Hale was absent during all or part of a brief, inconclusive discussion between the trial judge and counsel for the parties. The defense complained that the state was still disclosing evidence that should have been disclosed earlier. The state asserted that it had already informally disclosed the evidence in question and was now merely doing so “in a formal written fashion” for the record.

{¶ 102} Hale’s “absence was not prejudicial because the jury received neither testimony nor evidence, and no critical stage of the trial was involved.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 145. Hale contends that his presence during this discussion “would have been important” because it “would have alerted him to the ineffective assistance of counsel he was receiving * * * which would have prompted him to raise the issue before the trial court.” We reject this speculative claim.

{¶ 103} Hale was also absent from a proceeding in chambers on May 25, 2005. This proceeding involved a discussion of “technical and procedural and evidentiary matters,” and defense counsel waived Hale’s presence. Hale contends that counsel may not waive a client’s right to be present, but he is incorrect. See, e.g., Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 144; State v. Green (2000), 90 Ohio St.3d 352, 372, 738 N.E.2d 1208. Moreover, Hale’s absence was not prejudicial, as the jury received no testimony or evidence in his absence. See Frazier at ¶ 145.

{¶ 104} Hale also contends that he was not present during ten “pretrial hearings” held between August 23, 2004, and March 10, 2005. The record does not show that any hearings actually took place on the dates indicated. The trial court’s docket and journal entries state only that “pretrial[s]” were held on those dates. These may have been pretrial conferences. See generally Crim.R. 17.1.

{¶ 105} Whatever the “pretrials” were, none of them was recorded. “[T]he record must affirmatively indicate the absence of a defendant or his counsel during a particular stage of the trial.” State v. Clark (1988), 38 Ohio St.3d 252, 258, 527 N.E.2d 844. As no record was made, we cannot determine whether Hale was absent from the pretrials in question. Hale’s fourth proposition of law is overruled.

C. Discovery Violation

{¶ 106} In section (A) of his eighth proposition of law, Hale contends that the trial court should have punished the state’s noncompliance with its discovery orders by excluding Hale’s oral statements to Sergeants Baird and Pestak.

{¶ 107} Crim.R. 16(B)(1)(a)(ii) provides: “Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy * * * [wjritten summaries of any oral statement * * * made by the defendant or co-defendant to * * * any law enforcement officer.” This rule requires that the prosecution “reduce the [defendant’s] statement to writing, in the form of a summary, to be provided to the defense during discovery.” State v. Bidinost (1994), 71 Ohio St.3d 449, 456, 644 N.E.2d 318.

{¶ 108} At issue are Hale’s statement to Pestak that he “didn’t kill anybody” and Hale’s statement to Baird that he had discarded the gun, Green’s clothing and shoulder bag, and some towels in a dumpster outside the lodge. The state had informed defense counsel of the statements to Baird during a pretrial, but had failed to provide written summaries of either statement, as required by Bidinost, within the deadline set by the trial court.

{¶ 109} The trial court initially ordered that Hale’s oral statement to Baird be excluded as a discovery sanction. However, the court did not exclude the statement to Pestak. Later, the trial court found that the defense had opened the door to part of Hale’s oral statement to Baird — all except the part about the shoulder bag — and allowed Baird to testify to that portion of the statement.

{¶ 110} The prosecutor asked Sergeant Baird about Hale’s admission that he had disposed of the gun and Green’s clothing and shoulder bag. On objection, the prosecutor withdrew this question. The defense did not ask the trial court to strike the prosecutor’s reference to the shoulder bag or to issue a curative instruction.

{¶ 111} The prosecutor then asked, “[W]hat did the defendant tell you he disposed of?” Baird replied, “He told me that he had disposed of the clothing, the gun and the bag, along with some towels.” (Emphasis added.)

{¶ 112} Defense counsel objected and moved for a mistrial. At sidebar, the prosecutor suggested that Baird had been referring to a garbage bag that Hale had placed the gun and clothing in before disposing of them. The trial court determined that its order did not bar references to the garbage bag. Further questioning clarified that the “bag” mentioned by Baird was indeed a garbage bag.

{¶ 113} Crim.R. 16(E)(3) provides: “If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.”

{¶ 114} We have held that Crim.R. 16(E)(3) vests the trial court “with a certain amount of discretion in determining the sanction to be imposed for a party’s nondisclosure of discoverable material. The court is not bound to exclude such material at trial although it may do so at its option.” State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 453 N.E.2d 689.

{¶ 115} Parson established guidelines for evaluating the trial court’s exercise of discretion in this area: “Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution’s failure to disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted.” Parson, 6 Ohio St.3d 442, 6 OBR 485, 453 N.E.2d 689, syllabus.

{¶ 116} None of the three Parson factors exists in this case. First, nothing in the record indicates that the state’s failure to provide written summaries of Hale’s oral statements in question was a willful discovery violation. To the contrary, the trial court expressly found that the prosecution had engaged in “no intentional withholding of the information.”

{¶ 117} Second, there is no evidence that foreknowledge of the statements at issue would have benefited the defense. In fact, the defense had foreknowledge of these statements. As we have noted, the prosecution had orally informed the defense of Hale’s statements to Baird before trial. While this conduct did not satisfy the requirement of a written summary, it clearly did provide the defense with foreknowledge of the statement.

{¶ 118} As for Hale’s statements to Pestak that he “didn’t kill anybody,” the defense learned of them no later than May 9, 2005, when Pestak testified about that statement at the suppression hearing. That hearing occurred 22 days before Pestak testified at trial concerning those statements. Thus, “[w]hile the defense was entitled to a written summary of the statements], the record does not reflect that a written summary would have benefited appellant in the preparation of his defense.” Bidinost, 71 Ohio St.3d at 457, 644 N.E.2d 318.

{¶ 119} Third, the record does not show prejudice. The defense was not surprised by these statements, because defense counsel had actual foreknowledge of their content. Nor did the defense request a continuance to prepare to cross-examine Pestak and Baird. Hence, “the trial court may have properly determined that appellant was prepared to proceed despite any claim of unfair ‘surprise.’ ” Bidinost, 71 Ohio St.3d at 457, 644 N.E.2d 318. See also State v. Wiles (1991), 59 Ohio St.3d 71, 80, 571 N.E.2d 97, citing State v. Edwards (1976), 49 Ohio St.2d 31, 42-43, 3 O.O.3d 18, 358 N.E.2d 1051.

{¶ 120} Finally, no due process issue exists here. “There is no general constitutional right to discovery in a criminal case * * Weatherford v. Bursey (1977), 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30. See also Gray v. Netherland (1996), 518 U.S. 152, 168, 116 S.Ct. 2074, 135 L.Ed.2d 457. In particular, a criminal defendant has no due process right to inspect his own confession. See Leland v. Oregon (1952), 343 U.S. 790, 801-802, 72 S.Ct. 1002, 96 L.Ed. 1302; Cicenia v. La Gay (1958), 357 U.S. 504, 510-511, 78 S.Ct. 1297, 2 L.Ed.2d 1523, overruled in part on other grounds, Escobedo v. Illinois (1964), 378 U.S. 478, 492, 84 S.Ct. 1758, 12 L.Ed.2d 977, fn. 15. We overrule section (A) of Hale’s eighth proposition of law.

VI. Exclusion of Proffered Mitigation

{¶ 121} In Hale’s 11th proposition of law, he contends that the trial court improperly excluded relevant mitigating evidence from the penalty phase.

{¶ 122} Hale’s three sisters, Latisha, Lashayla, and Laquatia, testified on his behalf in the penalty phase. During Lashayla’s testimony, defense counsel asked: ‘What would it do to you if your brother was sentenced to death?” The state’s objection was sustained.

{¶ 123} Hale claims this ruling was erroneous because the impact of the death penalty on the' defendant’s family is a relevant mitigating factor. The constitutional right of a capital defendant to present mitigating evidence includes any aspect of his character or record and any of the circumstances of the offense. Lockett v. Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973.

{¶ 124} However, a trial court may exclude proffered mitigation that is not relevant to the defendant’s character, his record, or the circumstances of the offense. Id. at fn. 12. Several jurisdictions have held that testimony by the defendant’s relatives concerning the impact that the defendant’s execution will have on them is not relevant to the defendant’s character, his record, or the circumstances of his offense and therefore may be excluded. See, e.g., People v. Vieira (2005), 35 Cal.4th 264, 295, 25 Cal.Rptr.3d 337, 106 P.3d 990; People v. Armstrong (1998), 183 Ill.2d 130, 154-155, 233 Ill.Dec. 252, 700 N.E.2d 960; Ross v. State (Miss.2007), 954 So.2d 968, ¶ 15; Fuller v. State (Tex.Crim.App.1992), 827 S.W.2d 919, 936; State v. Stenson (1997), 132 Wash.2d 668, 750-754, 940 P.2d 1239. Contra State v. Stevens (1994), 319 Or. 573, 584, 879 P.2d 162 (effect of execution on defendant’s family is relevant to his character because it shows his capacity to be of emotional value to others).

{¶ 125} Even were we to conclude that the evidence should have been admitted, we would find in this case that any error was harmless. The trial court’s ruling was narrow. Although Lashayla was precluded from testifying as to how Hale’s execution would affect her, she was permitted to testify that she loved him. Similarly, Latisha and Laquatia testified that they loved Hale and wanted to maintain a relationship with him. In addition, all three sisters were permitted to expound on Hale’s good qualities. Thus, while staying within the bounds of the trial court’s ruling, Hale’s sisters were fully able to convey that they loved and valued their brother and to present aspects of his character that militated in favor of sparing his life. See Vieira, 35 Cal.4th at 295, 25 Cal.Rptr.3d 337, 106 P.3d 990; State v. Loftin (1996), 146 N.J. 295, 369, 680 A.2d 677 (any error would have been harmless; defendant presented character evidence that directly focused on his relationship with wife and child). We overrule Hale’s 11th proposition of law.

VII. Penalty-Phase Evidentiary Issues

{¶ 126} In his 12th proposition of law, Hale argues that the trial court allowed inadmissible evidence in the penalty phase.

{¶ 127} Hale’s sister Laquatia testified in the penalty phase. During her cross-examination, the state elicited testimony regarding a threat by Hale to kill his father. Laquatia testified that she had heard about the threat, but “wasn’t present” when it was made. The defense objected, but did not state any grounds for the objection, and the trial court overruled it.

{¶ 128} Hale now advances three grounds for holding the testimony inadmissible. First, he argues that Laquatia’s testimony was inadmissible hearsay. See State v. Jalowiec (2001), 91 Ohio St.3d 220, 233, 744 N.E.2d 163 (hearsay rule applies to the penalty phase). Second, Hale argues that the prosecutor was “testifying,” although he makes no attempt to explain this assertion. Third, he argues that Laquatia’s testimony was inadmissible because it went to the issue of future dangerousness and showed that Hale was a person of bad character.

{¶ 129} However, Hale did not advance any of these grounds at trial. By failing to “stat[e] the specific ground of objection,” Hale waived his claims. Evid.R. 103(A)(1). Hence, he can prevail now only if he shows that the admission of Laquatia’s testimony was plain error.

{¶ 130} We find that it was not. Hale’s sister Latisha testified that she was present at times when Hale argued with his father. On one such occasion, Hale threatened to kill his father, “but then he told him that he kn[e]w that he wouldn’t die so he’s not going to kill him. If anything he’ll torture him.” Laquatia’s testimony regarding the death threat was thus merely cumulative of Latisha’s testimony, whose admissibility Hale does not challenge.

{¶ 131} Hale also claims that the state improperly elicited evidence about Hale’s having been paroled. On cross-examination, the prosecutor asked Dr. John Fabian, the defense psychologist, about the length of the sentence from which Hale had been released in 2003. Fabian knew that Hale had served 12 years, but did not know the length of the original sentence. The prosecutor asked: “In fact, doctor, it was an indeterminate sentence of 12 to 25 years, was it not?” Fabian repeated, “I don’t know.” The prosecutor then asked: “[A]ssuming that that is accurate, * * * would you agree from your knowledge of the prison system that in order to be red lighted after the minimum term of an indeterminate sentence, the parole board reviewed the inmate’s performance while in prison [and] was satisfied that parole was justified at that point?” Fabian said: “That seems logical to me.” Fabian had not discussed parole on direct examination.

{¶ 132} Again, the defense made nonspecific objections to the prosecutor’s questions. Thus, Hale has failed to preserve his claim and must demonstrate that it was plain error to permit Fabian to answer these questions. Raising the issue of parole on cross-examination may have been improper, see State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 98, but it was not clearly outcome-determinative. We therefore find that no plain error occurred. Moreover, our independent review of the death sentence will cure the error, as the possibility of parole will play no part in our analysis. Hale’s 12th proposition of law is overruled.

VIII. Penalty-Phase Instructions

{¶ 133} In his 13th proposition of law, Hale argues that erroneous instructions rendered the penalty phase unreliable.

{¶ 134} During closing argument, the prosecutor asked the jury to consider whether there was “any mitigation in” the circumstances of the crime, specifically the robbery and the defendant’s attempts to conceal the murder. The defense objected on the ground that the prosecutor could not argue mitigating factors not raised by the defense. See State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542. The trial court sustained the objection and gave, without objection, the following curative instruction:

{¶ 135} “Mitigation evidence is the evidence that was presented by the defense during this portion of the trial or that would have been presented during the trial phase. It does not exist within the context of the crime itself” (Emphasis added.)

{¶ 136} It is unclear what the judge meant by the last sentence of this instruction, but Hale contends that it can reasonably be understood to mean that the circumstances of the crime cannot be considered in mitigation. Such an instruction would, of course, be incorrect. See R.C. 2929.04(B) (sent