State v. Powell (132 Ohio St. 3d 233, 2012)

Pfeifer, J.

{¶ 1} This is an appeal as of right by defendant-appellant, Wayne Powell. A jury convicted Powell of the aggravated murder of Rosemary and Mary McCollum, four-year-old Jamal McCollum-Myers, and three-year-old Sanaa’ Thomas, and of aggravated arson. The jury recommended the sentence of death for the aggravated murder of the four victims. The trial court accepted those recommendations and sentenced Powell accordingly.

{¶ 2} For the following reasons, we affirm Powell’s convictions and sentences of death.

State’s case

{¶ 3} Mary McCollum lived in a two-story house at 814 St. John Avenue in Toledo. Rosemary, Mary’s mother; Jamal, Mary’s adopted son; and Ebony Smith, Mary’s cousin, also lived at the house. Rosemary spent much of the time in bed because of health problems and was unable to walk without assistance.

{¶ 4} Powell and Mary McCollum had a personal relationship for more than ten years and had lived together “off and on” at her home for “about a year, year and [a] half.” Powell moved out of the house before October 2006,-though the exact date is unclear.

{¶ 5} Powell continued to see Mary after he moved out. He later told investigators that he would sneak into the house and sometimes spend the night. Mary would hide him in the closet, by the side of the bed, or in the basement so that her family would not know that he was there. Powell claimed they had disagreements because Mary did not want her family to know that he was still coming to the house.

{¶ 6} At 6:45 p.m. on September 23, 2006, Powell called Mary and threatened to burn her house down. In a voice mail left on Mary’s phone, Powell stated, “I’m coming to burn the house because you don’t play with me. Better get your mom out, the bitch and your kids * * * because I’m coming.” Five minutes later, Powell called Mary and left another voice mail. He stated, “I’m almost there. Telling you. I’m also going to [unintelligible] gas.”

{¶ 7} On the evening of October 19, 2006, Mary and Ebony smelled gasoline on the front porch of the house. They called 9-1-1, and firemen arrived and hosed down the porch. Captain Joseph Wlodarz, a Toledo fireman, testified, “You could actually see [the gasoline] being absorbed into the porch and into the wall * * Wlodarz estimated that “at least a couple gallons” of gasoline had been poured on the porch.

{¶ 8} On the morning of October 20, Annette McCollum, Mary’s sister, confronted Powell and asked him why he had poured gasoline on the front porch. Powell said he did it because Mary was not paying him any attention. Powell said that he “wasn’t going to set the house on fire”; he just wanted to “scare her.” No one told the police that Powell had poured gasoline on the porch, because Mary was afraid of losing custody of Jamal again if she reported Powell.

{¶ 9} Mary’s friends and relatives often visited and spent the night at her house. On the evening of November 10, 2006, Mary, Rosemary, four-year-old Jamal, and five other people slept at Mary’s house: Lynnita Stuart, two-year-old Sanaa’ Thomas, ten-year-old Antonio Boone, 11-year-old Dashawn Davis, and five-year-old Danshi Mitchell. Rosemary and Sanaa’ slept in the back upstairs bedroom, Mary and Jamal slept in the front upstairs bedroom, and Lynnita and her son, Dashawn, slept in the middle upstairs bedroom. Antonio and Danshi slept downstairs on the living-room couch.

{¶ 10} Markisha Campbell, the defendant’s daughter, and Makyca Finch, his granddaughter, often stayed at Mary’s house. The night before the fire, Powell called Markisha and asked how she and Makyca were doing and where they were. Markisha told Powell that she was at home and that Makyca was with Markisha’s sister.

{¶ 11} Between 12:30 a.m. and 1:00 a.m. on November 11, Charles Powell, a younger brother of Powell, drove Powell to Mary’s house. Powell pounded on the front door, and Lynnita answered it. Powell said he wanted his boots and a pair of boxer shorts that he had left at the house. Mary got these items, and Lynnita handed them to him. Powell accused Lynnita of standing between him and Mary and started calling Lynnita “dike Bs, grabbed the door, [and] told Mary she * * * gonna F around and make him kill her.” Mary told Powell, “I don’t want no trouble between you and my cousin. Can you please leave.” Powell asked Mary for a kiss, and she refused. Powell and his brother then drove away.

{¶ 12} After leaving the house, Powell called Mary, and Lynnita overheard some of the conversation. Powell accused Mary of having “the dike bitch listening to [his] phone call” and warned, “You going to make me fuck you up.”

{¶ 13} Later that evening, Lynnita was awakened by screams from Rosemary’s room. Lynnita felt heat, saw smoke, and realized that the house was on fire. She saw flames coming out of Rosemary’s room but was unable to help her. Lynnita then jumped out the bedroom window, and Dashawn ran down the stairs. Dashawn got Antonio, and they left the house together. Lynnita told a bystander that Danshi was still in the house, and the bystander went inside and rescued her.

{¶ 14} At 2:50 a.m. on November 11, the Toledo Fire Department received a call about a fire at 814 St. John Avenue. Firefighters arriving at the scene observed fire and heavy smoke coming from the back of the house. Firefighters entered the house and found the dead bodies of Rosemary and Sanaa’ in the back upstairs bedroom. Mary and Jamal were found alive in the front upstairs bedroom. Attempts to resuscitate them were unsuccessful, and both died.

{¶ 15} On the morning of November 11, Toledo Detective William Gast spoke to Lynnita and Ebony at the hospital. They provided information that identified Powell as a possible suspect.

{¶ 16} Later that morning, police officers contacted Isaac Powell V, the defendant’s youngest brother. Isaac told Officer Gast that Powell had been at his apartment earlier that morning. Isaac’s apartment was 1.6 miles from Mary’s house. Isaac consented to a search of his apartment, and the police found Powell’s sweatpants in a closet. Isaac stated that Powell had been wearing those sweatpants when he arrived at his apartment that morning.

{¶ 17} At trial, Isaac testified that between 2:30 a.m. and 3:00 a.m. on November 11, Powell had awakened him by throwing rocks at his bedroom window. After Isaac let him inside, Powell told Isaac, “[M]an, I really fucked up. I fucked up. I fucked up.” Isaac testified that Powell did not mention anything about gasoline. Isaac acknowledged that he testified before the grand jury that Powell had “told [him] that he put gas on the outside of the side door.”

{¶ 18} Powell stayed at the apartment for the rest of the night. Isaac testified that Powell was still asleep when he left the apartment shortly after 6:00 a.m.

{¶ 19} Isaac’s videotaped police statement was presented at trial. During that interview, Isaac told police that Powell had said that Mary “pissed [Powell] off about something.” According to Isaac, Powell then said, “I went over there and * * * I was pacing in front of the house and * * * I found a little gas can on the side of the something and I threw a little gas on the side door and * * * set the door on fire.”

{¶ 20} Officer Gast interviewed Charles Powell twice on November 11. During the second interview, Charles called Powell and encouraged him to turn himself in to the police.

{¶21} About 1:00 a.m. on November 12, Toledo Police Officer Lawrence Emery Jr. observed a person matching Powell’s description walking down the street. Officer Emery asked the person his name, and he replied, “Ike.” The officer determined that this individual was Powell and took him into custody.

{¶ 22} At approximately 1:45 a.m. on November 12, Officer Gast conducted a videotaped interview of Powell. After waiving his Miranda rights, Powell denied setting fire to Mary’s house. Powell admitted that he had gone to Mary’s house at 1:00 a.m. to get his boots and boxer shorts, but said that he left Mary’s house and did not return.

{¶ 23} Powell stated that after he left Mary’s house, he called her “all night,” using his phone and his brother’s phone (listed under the name of Charles’s wife, Tamiko Williams). Powell stated that Mary had called him after he left.

{¶ 24} Powell said that he spent the night at Charles’s house drinking and smoking crack. At one point, he went to Isaac’s apartment, but Isaac would not answer the door. Powell then returned to Charles’s home and slept there. Powell said that he woke up early the next morning and watched the 6:30 a.m. news and heard about the fire. Powell then walked to Isaac’s apartment. Isaac let him inside after Powell woke him up by throwing rocks at his window. Powell talked to his boss on the phone that morning and arranged a roofing job that day. Later, his boss picked Powell up at Isaac’s apartment and took him to work.

{¶ 25} During the interview, Powell denied pouring gasoline on Mary’s porch a few weeks earlier. He said, “I don’t know nothing about that.” Powell’s clothing was seized during the interview. Powell stated that all the police would find is “a whole bunch of tar from a * * * roof.”

{¶ 26} On November 13, Officer Gast obtained a buccal swab from Powell’s cheeks and talked with him again. Gast mentioned that Powell’s clothing was sent to the lab for testing. Powell replied, “[T]hey ain’t going to get no gas.” Powell mentioned that the clothes the police took from him, except for his boots, were the same clothes he had been wearing when he went to Mary’s house to get his clothes. Powell stated that for Mary’s security, he had put the board on the floor that had blocked Mary’s side door, and it had been there for more than a year. He also installed the lock on the side door, but he did not have the key.

{¶ 27} Phone records showed that Powell made numerous phone calls to Mary on November 11. From his own phone, Powell called Mary’s phone 52 times between 12:15 a.m. and 2:50 a.m. No calls were made from Powell’s phone between 2:50 a.m. and 3:15 a.m. Powell again called Mary’s phone at 9:44 a.m. and 9:45 a.m.

{¶ 28} Phone records for Tamiko Williams’s phone showed that Powell made 36 phone calls to Mary’s phone between 12:19 a.m. and 2:06 a.m. on November 11. No other outgoing calls were made from Williams’s phone between 2:06 a.m. and 9:08 a.m.

{¶29} Mary’s phone records showed that she made seven calls to Powell’s phone between 12:19 a.m. and 2:06 a.m. on November 11. The last call from Mary’s phone number was a 9-1-1 call at 2:45 a.m.

{¶ 30} On the morning of November 11, Frank Reitmeier, a fire investigator with the Ohio Fire Marshal’s Office, examined the remains of Mary’s home. Reitmeier found burn patterns on the landing area inside the house next to the side door. Reitmeier stated that these “burn patterns * * * indicated that * * * a liquid was poured on the landing and ignited.”

{¶ 31} Reitmeier stated that the side door was burned and heavily charred on the interior side. There was a crack in the door, and Reitmeier stated that the “crack was actually burnt which means that the crack was in the door at the time of the fire and not caused after the fire.” He also determined that force was applied to the door before the fire and that the door was closed when the fire started. Reitmeier was unable to tell whether the door knobs and dead bolt had been in place because they had melted. Reitmeier concluded that arson had caused the fire, which had originated on “the landing going from the kitchen to the basement, a landing where the side door entry is.”

{¶ 32} Michael Smith, an arson investigator with the Toledo Fire Department, also examined the burned house. Smith’s observations and findings were essentially the same as Reitmeier’s. He concluded that the fire was “definitely an arson fire.” Smith collected the board on the floor that was wedged between the side door and the wall in the landing area that kept the door closed. The top of the board was heavily burned. Smith stated that outside force appears to have been used to push in part of the side door. Smith explained:

When that door was pushed in I guess the board held the bottom closed but * * * [it] was free everywhere else once the lock broke. It won’t open up because of the boards at the bottom. That’s how it creates the crease, and you have a flimsy side on the upperhand side you can push it open but you couldn’t open the complete door because of the board at the bottom of the door, so there was an opening there.

{¶ 33} Smith also found á gasoline can in the vicinity. Swabs were collected from the handle of the gas can; subsequent testing did not locate any DNA.

{¶ 34} Christa Rajendram, Ph.D., a supervisor at the state fire marshal’s forensic lab, tested floor samples from the side entry hallway and found gasoline. She also tested wood chips taken from the board on the side door landing and found gasoline. Dr. Rajendram tested Powell’s clothing and found gasoline on his jeans, gym shorts, boxer shorts, two sweatshirts, and two T-shirts. Gasoline was also found on the sweatpants that had been found in Isaac’s closet. Heavy petroleum distillate was found on Powell’s boots and tube socks. Dr. Rajendram stated that “kerosene, diesel and some heavy charcoal starters” could be the source of heavy petroleum distillate.

{¶ 35} Diane Scala-Barnett, M.D., the Lucas County deputy coroner, conducted autopsies on the four victims. Dr. Scala-Barnett stated that burns and soot covered most of Rosemary’s body. Dr. Scala-Barnett determined that Rosemary’s cause of death was “the inhalation of smoke and soot, which caused carbon monoxide poisoning.” Dr. Scala-Barnett testified that Mary, Jamal, and Sanaa’ suffered burns and that soot covered their faces. She concluded that each of the victims had died from “acute carbon monoxide intoxication.”

Defense case

{¶ 36} David Mariasy, an audio expert, conducted a comparison of the voice on Mary’s voicemail recordings with a voice exemplar provided by Powell. The results of the testing were inconclusive.

{¶ 37} Carleton Finkbeiner, the mayor of Toledo at the time of the fire, had visited the scene. He remembers mentioning to a reporter that the police had the name of a potential suspect. Finkbeiner also stated that if the fire had been deliberately set, he “would prosecute to the fullest extent of the law.” He did not order the home demolished. That decision would have been made by the director of the department of neighborhoods and her staff.

{¶ 38} Powell did not testify.

Case history

{¶ 39} Powell was indicted on ten counts of aggravated murder and one count of aggravated arson. Count 1 charged Powell with aggravated arson.

{¶ 40} Count 2 charged Powell with the aggravated murder of Mary McCollum with prior calculation and design. Count 6 charged Powell with the aggravated murder of Mary while committing aggravated arson. Both counts included death-penalty specifications for a course of conduct, R.C. 2929.04(A)(5), and murder while committing aggravated arson, R.C. 2929.04(A)(7).

{¶ 41} Count 3 charged Powell with the aggravated murder of Rosemary McCollum with prior calculation and design. Count 7 charged him with the aggravated murder of Rosemary while committing aggravated arson. Both counts included death-penalty specifications for a course of conduct and murder while committing aggravated arson.

{¶ 42} Count 4 charged Powell with the aggravated murder of Jamal McCollum-Myers with prior calculation and design. Count 8 charged him with the aggravated murder of Jamal while committing aggravated arson. Count 10 charged Powell with the aggravated murder of Jamal, a child under the age of 13. All three counts included death-penalty specifications for a course of conduct, murder while committing aggravated arson, and murder of a child under the age .of 13, R.C. 2929.04(A)(9).

{¶ 43} Count 5 charged Powell with the aggravated murder of Sanaa’ Thomas with prior calculation and design. Count 9 charged him with the aggravated murder of Sanaa’ while committing aggravated arson. Count 11 charged him with the aggravated murder of Sanaa’, a child under the age of 13. All three counts included death-penalty specifications for a course of conduct, murder while committing aggravated arson, and murder of a child under the age of 13.

{¶ 44} Powell pled not guilty, but the jury found him guilty of all counts. Powell was sentenced to death on four counts of aggravated murder. He was also sentenced to 10 years in prison for aggravated arson. Powell seeks reversal of his convictions and sentence in 26 propositions of law.

Pretrial and trial issues

{¶ 45} Prior statements of Isaac Powell. In proposition of law I, Powell argues that Isaac’s testimony relating what he told the grand jury about the defendant’s admissions was improperly admitted as substantive evidence. Powell also argues that Isaac’s videotaped statement to Detective William Gast was improperly admitted as a prior consistent statement. Furthermore, Powell contends that the trial court erred by failing to provide limiting instructions that that evidence could not be used substantively.

{¶ 46} 1. Facts. Isaac testified that Powell appeared at Isaac’s apartment between 2:30 a.m. and 3:00 a.m. on November 11. Following Powell’s arrival, Isaac went back to bed and left Powell in the living room.

{¶ 47} As Isaac’s testimony progressed, the prosecutor asked, “Now, you have testified in a prior hearing in this case; is that correct?” Isaac responded that he had. Isaac then testified that after the fire, his “brother come [sic] up.” Isaac added, “I really didn’t want to hear nothing. He like, man, I really fucked up. I fucked up. I fucked up.” The prosecutor then asked, “Did your brother ever talk to you about gasoline?” Isaac replied that he did not.

{¶ 48} In a session outside the jury’s presence, the prosecutor asked the trial court to declare Isaac an “adverse party” so that the state could cross-examine him regarding his prior statement to the grand jury. Before making his ruling, the trial court asked the prosecutor whether he had considered refreshing Isaac’s recollection with the relevant portion of the grand jury transcript. The prosecutor stated that he would pursue that option before asking the court to declare Isaac an adverse party.

{¶ 49} While still outside the jury’s presence, the prosecutor attempted to refresh Isaac’s recollection by providing him with a transcript of the relevant portion of his grand jury testimony. The prosecutor showed Isaac the relevant passage from his prior testimony and asked him, “[A]fter having reviewed your prior statement is your memory refreshed regarding gasoline.” Isaac replied, “Not really.”

{¶ 50} The trial court ruled that all further questioning of Isaac should be continued in the jury’s presence. When the questioning resumed, the prosecutor asked Isaac whether he remembered telling the grand jury that Powell had mentioned “gasoline” after the fire. Trial counsel objected and argued that the prosecution was attempting to impeach its own witness with a prior inconsistent statement. In the alternative, trial counsel requested a limiting instruction that the grand jury testimony could be used only for impeachment purposes and not for its substantive value. In response, the prosecutor stated, “At this point that witness was prepared to state on the record what he said in Grand Jury. That is not impeachment. That’s testimony.”

{¶ 51} The trial court overruled the defense objection. The court stated, “I have to agree with the State at this time. * * * [T]he Court’s interpretation of what was about to occur was a statement by this witness of potentially refreshed recollection of what he stated to the Grand Jury.”

{¶ 52} When the questioning resumed, the prosecutor asked Isaac, “What did you tell the Grand Jury under oath November 21st last year regarding gasoline that your brother had told you.” Isaac replied, “I said that he told me that he put gas on the outside of the side door.”

{¶ 53} During cross-examination, Isaac stated that he was “mistaken” in telling the grand jury that Powell had told him that he had poured gasoline on the side door. He stated that Powell never told him that. Isaac stated that he had been under “extreme pressure” before testifying to the grand jury because the police told him that he could be charged with aiding and abetting the murders. Isaac said, “[T]hey [the police] kind of light weight guided my testimony.”

{¶ 54} Furthermore, over defense objection and before Detective Gast testified, the trial court permitted the prosecutor to play the videotaped statement that Isaac made to him on the morning of November 11. The court ruled that Isaac’s videotaped statement was a prior consistent statement and was admissible to rebut an express or implied charge of improper influence raised by the defense. The trial court overruled a defense request for a limiting instruction that Isaac’s videotaped statement could be considered to show that it was a prior consistent statement only and could not be considered as substantive evidence.

{¶ 55} In Isaac’s videotaped statement, Isaac told police that Powell had come to his apartment on the morning of the fire and had said that he had “fucked up.” According to Isaac, Powell told him that Mary had “pissed [him] off,” and he went to her house. Isaac also stated that. Powell told him that he found a gas can and “threw a little gas on the side door and * * * set the door on fire.” {¶ 56} 2. Analysis. The defense argues that Isaac’s testimony about what he told the grand jury was improperly admitted as refreshed recollection. The state responds that Isaac properly testified after refreshing his memory by reviewing his previous grand jury testimony. We conclude that the record shows that Isaac’s testimony was improper.

{¶ 57} Evid.R. 612 permits a party to use a writing to refresh a witness’s recollection. Under the doctrine of present recollection refreshed, “the witness looks at the memorandum to refresh his memory of the events, but then proceeds to testify upon the basis of his present independent knowledge.” State v. Scott, 31 Ohio St.2d 1, 5-6, 285 N.E.2d 344 (1972). The testimony of the witness whose recollection has been refreshed is the evidence, not the contents of the writing. See 1 Giannelli, Evidence, Section 612.3, at 578 (3d Ed.2010). Thus, “a party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury.” State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d 369 (1996).

{¶ 58} The trial court correctly permitted the prosecutor to refresh Isaac’s memory by requesting him to review the transcript of his grand jury testimony. Isaac never claimed to have forgotten what he told the grand jury, and he therefore testified that his -review of his prior grand jury testimony did “[n]ot really” refresh his recollection regarding his testimony about gasoline. Isaac’s negative response showed that his review of his grand jury testimony had failed to refresh his recollection. Nevertheless, the prosecutor continued to refer to Isaac’s grand jury testimony during further questioning.

{¶ 59} The prosecutor continued, ‘What did you tell the Grand Jury under oath * * * last year regarding gasoline that your brother had told you.” This question simply elicited what Isaac told the grand jury rather than attempting to refresh his recollection as Evid.R. 612 requires. This prior out-of-court statement constituted inadmissible hearsay. See State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720, 933 N.E.2d 296, ¶ 26 (5th Dist.); 1 Giannelli at 582.

{¶ 60} Powell also argues that Isaac’s testimony was not properly admitted as a prior inconsistent statement under Evid.R. 613 and that the trial court erred by denying defense requests for a limiting instruction regarding the testimony. But at trial, Isaac’s statements about his grand jury testimony were not offered as a prior inconsistent statement. Moreover, the state does not argue before this court that Isaac’s statements were admissible as a prior inconsistent statement. Accordingly, these arguments can be disregarded.

{¶ 61} We now turn to whether Isaac’s videotaped police statement was properly admitted as a prior consistent statement.

{¶ 62} The admission of Isaac’s videotaped statement as a prior consistent statement was premised on the admissibility of Isaac’s testimony about what he told the grand jury. There was no other basis for admitting Isaac’s videotaped statement because it was otherwise objectionable hearsay. Thus, we conclude that Isaac’s videotaped statement was improperly admitted as a prior consistent statement because its admissibility was based upon Isaac’s earlier testimony, which was itself inadmissible.

{¶ 63} 3. Harmless error. We must now determine whether the erroneous admission of Isaac’s testimony and his videotaped statement constituted harmless error. The state argues that any error in admitting Isaac’s testimony and his videotaped statement was harmless beyond a reasonable doubt. This harmless-error standard is applied to errors involving constitutional rights. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

{¶ 64} The admission of Isaac’s videotaped statement and related testimony constituted a hearsay violation. The admission of hearsay does not violate the Confrontation Clause if the declarant testifies at trial. See California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Keenan, 81 Ohio St.3d 133, 142, 689 N.E.2d 929 (1998). Isaac testified at trial. Thus, the admission of Isaac’s testimony and videotaped statement was nonconstitutional error, which “is harmless if there is substantial other evidence to support the guilty verdict.” State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994); Crim.R. 52(A) (“Harmless error and plain error”).

{¶ 65} We find that the erroneous admission of Isaac’s testimony and his videotaped statements constituted harmless error. Other properly admitted evidence provided overwhelming evidence of Powell’s guilt: Powell’s repeated statements that he “fucked up” when he arrived at Isaac’s apartment shortly after the fire, Powell’s heated discussion with Mary and Stuart before the fire, Powell’s statement to Mary that she was “gonna F around and make him kill her,” Powell’s previous threat to burn down Mary’s house, Powell’s pouring of gasoline on Mary’s front porch, gasoline found on the clothing that Powell had been wearing on the night of the fire, and the pattern of Powell’s phone records and their timing on the night of the fire.

{¶ 66} Based on the foregoing, we overrule proposition of law I.

{¶ 67} Demolition of the crime scene. In proposition of law XI, Powell argues that his due process rights were violated when the city demolished the remains of Mary’s house before defense experts had had a chance to examine them. In proposition of law XII, Powell argues that his counsel were ineffective by failing to file a motion to preserve the home before it was demolished.

{¶ 68} 1. Facts. The house at 814 St. John Avenue was burned on November 11, 2006. On January 26, 2007, the remains of the house were demolished by the city of Toledo.

{¶ 69} On December 4, 2006, John Thebes and Ann Baronas were appointed as Powell’s counsel; they represented him throughout the trial. On February 1, 2007, defense counsel filed a motion to preserve and catalog all physical evidence. That same date, counsel filed a mption to make the state’s physical evidence available for inspection and testing. On March 26, 2007, defense counsel requested funding for a defense arson expert. The trial court approved this request. But unbeknownst to the parties, the city of Toledo had demolished the house on January 26.

{¶ 70} On June 29, 2007, defense counsel filed a motion to dismiss the charges because the state had destroyed “potentially exculpatory evidence” before defense experts had had an opportunity to inspect and analyze the crime scene. At a hearing on August 6, 2007, defense counsel informed the court that they had first learned that the home had been demolished when they went to view it in late May or early June. Defense counsel stated that they had gone to the scene with Detective Gast and were “astonished to learn the house was razed.”

{¶ 71} In response to the motion to dismiss, the prosecutor informed the court that “[a]fter the fire was extinguished, an Inspector from the City of Toledo Department of Neighborhoods inspected the house, finding it structurally unsound and a serious public safety concern. Consequently, the City of Toledo’s Chief Building Official ordered the house’s immediate demolition.” During the August 6 hearing, the prosecutor stated, “[T]he Prosecutor’s Office was not aware that the house had been torn down until Mr. Thebes [defense counsel] and Detective Gast went out and viewed the house and that’s when we became aware of it.”

{¶ 72} The trial court denied the motion to dismiss, ruling that it found no bad acts or conduct on behalf of the state of Ohio. It concluded that the state and defense counsel both learned of the destruction of the building at the same time and place and that they were together when they learned of the destruction of the building. The court concluded that there was “no intentional destruction of either exculpatory material which this material was deemed not to be or potentially exculpatory and no bad acts on the part of the State of Ohio.”

{¶ 73} 2. Analysis. Specific tests are applied to determine whether the state’s failure to preserve evidence rises to the level of a due process violation. The test depends on whether the lost or destroyed evidence involves “material exculpatory evidence” or “potentially useful evidence.”

{¶ 74} In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Supreme Court held that the government violates a defendant’s due process rights when material exculpatory evidence is not preserved. Evidence is constitutionally material when it possesses “an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by’ other reasonably available means.” Id. at 489. The defendant bears the burden to show that the evidence was materially exculpatory. See State v. Jackson, 57 Ohio St.3d 29, 33, 565 N.E.2d 549 (1991).

{¶ 75} In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court reviewed a case in which the state had failed to properly preserve semen samples and clothing obtained from a child who was the victim of a sexual assault. A police criminologist performed testing on the evidence but was unable to identify the assailant. Id. at 53-54. Expert witnesses testified at trial that the defendant might have been completely exonerated by timely performance of tests on properly preserved semen samples. Id. at 54. The defendant was convicted of child molestation, sexual assault, and kidnapping. Id. at 52. The Arizona Court of Appeals reversed the conviction on the ground that the state had breached a constitutional duty to preserve the semen samples. Id.

{¶ 76} The Supreme Court reversed, stating:

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.

Id. at 57. In that situation, the court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58. See also Illinois v. Fisher, 540 U.S. 544, 545, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004).

{¶ 77} Youngblood made a clear distinction between materially exculpatory evidence and potentially useful evidence. “If the evidence in question is not materially exculpatory, but only potentially useful, the defendant must show bad faith on the part of the state in order to demonstrate a due process violation.” State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 10.

{¶ 78} The initial question in this case is whether the demolition of the house involved the loss of materially exculpatory evidence. Fire investigators examined the remains of the house shortly after the fire was extinguished. They established that the fire had originated in the landing area inside the side door and that gasoline had been the accelerant used to start the fire. They concluded that arson caused the fire. Nothing suggests that materially exculpatory evidence was left in the remains of the home following completion of their investigation.

{¶ 79} Powell concedes that the defense cannot show that the evidence was materially exculpatory. Powell claims that the remains might have shown an alternative cause of the fire, such as an appliance or other cause unrelated to arson. The evidence was potentially useful, not materially exculpatory, because “no more can be said than that [the remains of the house] could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57, 109 S.Ct. 333, 102 L.Ed.2d 281. Thus, we conclude that the demolition of the house resulted in the loss of “potentially useful evidence,” not the loss of “materially exculpatory evidence.”

{¶ 80} Powell argues that although the evidence may have been only potentially useful, the state demonstrated bad faith in failing to protect and preserve the remains of the house. Powell contends that the house could have been protected with a fence and that the state’s failure to preserve such key evidence was more than mere negligence or an error in judgment.

{¶ 81} Powell cannot prevail because the record does not reveal bad faith by the police or the prosecution. “The term ‘bad faith’ generally implies something more than bad judgment or negligence.” State v. Tate, 5th Dist. No. 07CA55, 2008-Ohio-3759, 2008 WL 2896658, ¶ 13. “ ‘It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.’ ” Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983), quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus.

{¶ 82} Neither the police nor the prosecution was aware that the Department of Neighborhoods had decided that the house presented a safety hazard and must be demolished. Indeed, defense counsel acknowledged that Detective Gast was as surprised as defense counsel when they saw that it had been demolished. Furthermore, the state was unaware that defense counsel wanted the home preserved as evidence. Defense counsel did not file a motion to preserve the remains of the home until after its demolition, even though they had time to make such a request between the time they were appointed and the time the house was demolished.

{¶ 83} Moreover, fire investigators photographed and videotaped the remains of the house and collected evidence from the scene and sent it to the lab for testing. This evidence was available for the defense expert to examine and test, but defense counsel declined the state’s offer to have the defense’s arson investigator examine these samples.

{¶ 84} Finally, the trial court, which was in the best position to weigh the evidence, concluded that “there [were] no bad acts or conduct on behalf of the State of Ohio with that property being destroyed.” We conclude that Powell has failed to demonstrate bad faith by the state in the demolition of the house.

{¶ 85} As an alternative argument in proposition XII, Powell argues that his counsel provided ineffective assistance by failing to seek an order at the time of arraignment to preserve all the evidence in the case, which would have prevented the demolition of the house. Reversal of a conviction for ineffective assistance of counsel requires the defendant to show that counsel’s performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.

{¶ 86} Powell claims that his counsel should have sought a court order to preserve the remains of the house because there was some indication of an alternative cause of the fire. Powell argues that a defense arson expert could develop such evidence only by examining the remains of the home. But Powell fails to specify an alternative cause of the fire or point to any evidence indicating that there was another cause. Thus, Powell’s argument is purely speculative and cannot serve as the basis for an ineffectiveness claim. See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 108.

{¶ 87} Even assuming that defense counsel were deficient, Powell fails to show how the failure to preserve the remains of the house made a difference in the outcome of the case. Powell’s statement that he “fucked up,” testimony that he threatened to kill Mary before the fire, evidence that gasoline was found on clothing he was wearing on the morning of the fire, testimony that Powell had previously threatened to burn down the home and had poured gasoline on the front porch, and other circumstantial evidence provided overwhelming evidence establishing his guilt. This ineffectiveness claim lacks merit.

{¶ 88} Based on the foregoing, we overrule propositions of law XI and XII.

{¶ 89} Questioning the accused about counsel. In proposition of law XXII, Powell argues that the trial court interfered with his attorney-client relationship by questioning Powell about his satisfaction with counsel. At a pretrial hearing on June 21, 2007, the trial court set a date of July 23, 2007, for a hearing on motions and “to address any other issues that parties may have at that time.” The trial court advised the defendant, “[Y]ou have an issue that you want to address with the court before July 23rd, just tell your attorneys, have them contact the court, and we’ll have you brought over as soon as possible.”

{¶ 90} On June 28, 2007, the trial court conducted an ex parte hearing with Powell and his defense counsel about a letter that Powell had sent to the judge. At the hearing, the trial court told Powell, “I have in front of me the letter that you sent me. * * * And in there you express a desire to speak with me regarding some concern you have or maybe your representation. What is it that you’d like to speak about?”

{¶ 91} Powell told the court, “I see myself as the only colored person or black person around. Everybody * * * is white.” Powell also mentioned his health problems and the medication he was taking for anxiety and complained about his diet in jail.

{¶ 92} The trial court then asked Powell about his concerns about counsel’s representation, stating, “[Yjou’re concerned that there may be some prejudice involved here because * * * you are a black man and Mr. Thebes [defense counsel] is a white man * * Powell didn’t allude to specific prejudice, but to a general concern based on something he had seen on TV, stating, “I seen some Dr. Phil. They was talking about the death penalty and black people versus white people, and this is national TV, and I was like, well * * * it’s not right, then it shouldn’t still be going on. But it still be going on.” Powell then stated of defense counsel, “[I]t’s really not him personally. Every time I talk to him, I be telling him * * * [it’s] the system I don’t trust.”

{¶ 93} The trial court attempted to clarify Powell’s concerns about the fairness of the proceedings.

The Court: * * * But what I’m not quite sure yet is if you’re just asking me to do something in particular about the situation or if you’re just trying to make sure that I’m also watching the situation and monitoring it.

The Defendant: I think it’s * * * more or less that I want * * * to be able to say or be able to know that the things that’s going on in my head is on the record basically.

The Court: Right.

The Defendant: So just in case something happens where I have to even go down the road and appeals have to be done that I can * * * basically get all bases covered or something. That’s what I’m thinking about.

{¶ 94} The trial court replied, “I also have to look down the road to make sure that everything is protected in case there is a conviction and in case there is a sentencing and in case there is a course of appeals, such as we’re building a record right now.” Before the hearing concluded, defense counsel stated to the court, “I am satisfied after talking with him this morning that he still wants me to be on the case and Ms. Baronas as well.” Powell then reaffirmed that he was satisfied with his present counsel.

{¶ 95} The trial court acknowledged Powell’s concerns that Powell was an African-American in a system in which the people not involved as defendant or victim were not African-Americans:

The Court: You’ve indicated that you don’t want to have different counsel. You want to keep Mr. Thebes and Ms. Baronas; is that correct?

The Defendant: Yeah, yes.

The Court: Will you inform the court if that changes at any point?

The Defendant: Yeah, yes.

{¶ 96} At a pretrial hearing on August 6, 2007, the trial court informed Powell that the trial would begin in two days. The court stated, “We want to make sure we have everything taken care of and all your concerns are taken care of.” Defense counsel responded, “After conferring with Mr. Powell I believe there is nothing further as far as Mr. Powell having any concerns.” The court then told Powell that if something new develops, he should advise his attorneys “so they can bring it to the Court’s attention.”

{¶ 97} Powell argues that the trial court interfered with his attorney-client relationship by asking him to bring his concerns about counsel or other matters about the case to the court’s attention because “it is inappropriate for the trial judge to come between the attorney and a criminal defendant.” In State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), syllabus, this court stated, “Where, during the course of his trial for a serious crime, an indigent accused questions the effectiveness and adequacy of assigned counsel * * *, it is the duty of the trial judge to inquire into the complaint and make such inquiry a part of the record.” This “ ‘limited judicial duty arises only if the allegations are sufficiently specific; vague or general objections do not trigger the duty to investigate further.’ ” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68, quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998).

{¶ 98} The record does not support Powell’s claim that the trial court abused its discretion by asking Powell about his satisfaction with counsel. The trial court conducted the ex parte hearing into Powell’s satisfaction with counsel because Powell sent a letter to the judge. Although the letter is not in the file, the trial court’s comments show that Powell raised concerns about his representation. The trial court’s limited inquiry provided Powell with an opportunity to express any concerns to the court about his representation before the trial began.

{¶ 99} Powell informed the court that he was satisfied with his counsel. During his colloquy with the trial court, Powell also mentioned his concerns about the fairness of the trial because he was African-American, he had health problems, his conditions of confinement were poor, and the jail food “was junk.” Powell’s discussion about these matters shows that his real concerns focused on issues other than dissatisfaction with counsel. Moreover, trial counsel did not object to the hearing or any of the questions that the trial court asked. There is no indication that the trial court improperly meddled with Powell’s attorney-client relationship.

{¶ 100} Powell invokes State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484 (1999), in arguing that the trial court’s questioning of a defendant improperly intruded into the attorney-client relationship. Bey held that “a trial court is not required to conduct an inquiry with the defendant concerning the decision whether to testify in his defense.” (Emphasis sic.) Id. at 499. The court added that such an inquiry might be harmful because it “ ‘places the judge between the lawyer and his client and can produce confusion as well as delay.’ ” Id., quoting People v. Curtis, 681 P.2d 504, 519 (Colo.1984) (Erickson, C.J., concurring). Bey also mentioned that such “questioning can lead into the judge’s evaluation of the wisdom of the defendant’s decision, the substance of the testimony, or simply evoke a dramatic change in a previously carefully considered trial strategy.” Id. Bey does not prohibit the court’s questioning of a defendant.

{¶ 101} But regardless, Bey is inapposite. Bey had complained that the trial court did not address him directly on his decision to testify. The court’s inquiry in this case is significantly different from an inquiry into the wisdom of a defense decision that the defendant will not testify. The trial court avoided any attempt to counsel Powell or his attorney on how he should proceed in trying his case. Unlike in Bey, the trial court’s inquiry focused on the continuing viability of the attorney-client relationship rather than the wisdom of the decisions reached within that relationship.

{¶ 102} Powell also argues that the trial court interjected itself between the defendant and counsel by asking Powell at the beginning of trial if he had any issues to address. This inquiry did not improperly intrude on the attorney-client relationship because the court told Powell, “[If] you have an issue that you want to address with the court * * * just tell your attorneys [and] have them contact the court * * *.”

{¶ 103} Finally, Powell argues that the trial court confused him by describing the court’s role when talking to him. The trial court’s explanation about the court’s role in overseeing the trial was discussed after Powell expressed his mistrust about the justice system. Contrary to Powell’s claim, the trial court’s explanation addressed Powell’s concerns and ensured that he was not confused about the court’s role.

{¶ 104} Based on the foregoing, we reject proposition of law XXII.

{¶ 105} Evidence of the victim’s fear. In proposition of law II, Powell argues that the trial court erred in permitting Lynnita Stuart to testify that she carried a baseball bat, a potato grinder, and a fork when Powell came to Mary’s house on the morning of the fire. As related previously, on November 11, Stuart had gone to Mary’s house to retrieve clothing. Powell accused Stuart of having an affair with Mary.

{¶ 106} The prosecutor asked Stuart the following questions before concluding the inquiry into what happened on the porch:

Q: Okay. Did you think you were going to get in a fight with him on that porch?

A: For a minute. When I opened up the door I was ready. I had things in my hand.

Q: What did you have in your hand?

A: I had a baseball bat. I had a potato grinder and a fork.

Q: Calm yourself down. You had a baseball bat and what else?

A: A potato grinder and a fork.

Q: Okay. Did you get those things because you knew who was at the door?

A: Yes.

{¶ 107} Powell’s counsel objected to Stuart’s testimony as irrelevant character evidence about Powell. The state cited State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987), in arguing that Stuart’s testimony implying her fear of Powell was admissible. The trial court overruled the defense objection, stating, “This is clearly the testimony of a witness and what she was doing and why she was doing it. She didn’t even articulate as to a specific reason as to why she grabbed the stuff. She just did.”

{¶ 108} The admission of Stuart’s testimony rested on a question of relevancy. Evid.R. 401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The admission or exclusion of relevant evidence rests within the sound discretion of the trial judge. See State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), • paragraph two of the syllabus.

{¶ 109} Stuart’s testimony about carrying weapons because Powell came to the door was irrelevant. Stuart’s state of mind was not a material issue in the case. Moreover, the state fails to provide any reason why Stuart’s actions and state of mind in carrying weapons might have been relevant. The state invoked Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394, in arguing that Stuart’s testimony was admissible. In Apanovitch, six witnesses testified that the victim had said that she was “fearful or apprehensive” of the defendant. Id. at 21. Apanovitch held that these statements were admissible as a hearsay exception under Evid.R. 803(3), as a statement of the declarant’s “ ‘then existing state of mind, emotion, sensation, or physical condition.’ ” Id. at 21-22, quoting Evid.R. 803(3). Apanovitch did not discuss why the victim’s fear of the defendant was relevant.

{¶ 110} Apanovitch has been applied to admit statements of a murder victim’s fear in subsequent cases. See State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 74 (evidence of the victim’s fearful state of mind was admissible under Evid.R. 803(3) but not the reasons for her state of mind). Accord State v. Frazier, 73 Ohio St.3d 323, 338, 652 N.E.2d 1000 (1995). In this case, however, we conclude that Apanovitch does not justify the admission of Stuart’s testimony because her state of mind was irrelevant to any facts at issue. See 2 Giannelli, Section 803.16, 236-239. Moreover, Stuart’s testimony suggested that Powell should be viewed as a bad person, evidence that is inadmissible under Evid.R. 404(A).

{¶ 111} Nevertheless, Stuart’s testimony constituted harmless error. There is little chance that Stuart’s testimony about carrying a baseball bat, a potato grinder, and a fork when Powell came to the door affected Powell’s convictions or sentence.

{¶ 112} Based on the foregoing, we reject proposition of law II.

{¶ 113} Miranda compliance. In proposition of law III, Powell argues that the trial court erred in admitting his November 13 interview, because the police failed to advise him of his Miranda rights before questioning him. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 114} At around 1:45 a.m. on November 12, 2006, Detective Gast conducted a videotaped interview of Powell at the Safety Building. Gast advised Powell of his Miranda rights before conducting this interview by reading them from a waiver-of-rights form. Powell stated that he understood his rights and waived them. Powell also signed a waiver form stating that he understood his rights, waived them, and was willing to answer questions and make a statement. During the interview, Powell denied setting the fire at Mary’s house. He also provided detailed information about his activities on November 11 and 12.

{¶ 115} Around 12:30 p.m. on November 13, 2006, Powell was brought back to the Safety Building so that police could obtain a buccal swab that had been authorized by a search warrant. Powell was not readvised of his Miranda rights. Gast advised Powell about the warrant and that a swab would be taken to obtain a DNA sample. Powell then asked, “What is that going to prove?” Gast answered Powell’s question. Powell then stated that lab testing would not detect gasoline on his clothing.

{¶ 116} Thereafter, Gast asked Powell other questions about the case. During the ensuing exchange, Powell acknowledged that his clothes that the police had seized, except his boots, were the clothes he had been wearing when he went to Mary’s house. He stated that the board that blocked the side door had been there for more than a year and that he did not have a key to the side door. Powell did not request counsel or indicate that he wanted to stop further questioning while talking to Gast.

{¶ 117} Defense counsel filed a pretrial motion to suppress Powell’s statements of November 12 and 13, arguing that Powell did not voluntarily waive his Miranda rights. The trial court overruled the defense motion and admitted the statements.

{¶ 118} Powell argues that the trial court erred in admitting his November 13 statement because he was not advised of his Miranda rights before his second interview. The state responds that Powell did not need to be readvised of his Miranda rights, because he had been advised of his rights the previous day.

{¶ 119} Police are not required to readminister Miranda warnings to a suspect when a relatively short period of time has elapsed since the initial warnings. State v. Treesh, 90 Ohio St.3d 460, 470, 739 N.E.2d 749 (2001). Courts look to the totality of the circumstances when deciding whether initial warnings remain effective for subsequent interrogations. State v. Roberts, 32 Ohio St.3d 225, 232, 513 N.E.2d 720 (1987). Roberts adopted the following criteria for determining whether the totality-of-the-circumstances test is met:

“(1) [T]he length of time between the giving of the first warnings and subsequent interrogation, * * * (2) whether the warnings and the subsequent interrogation were given in the same or different places, * * * (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers, * * * (4) the extent to which the subsequent statement differed from any previous statements; * * * [and] (5) the apparent intellectual and emotional state of the suspect.”

(Citations omitted.) Id. at 232, quoting State v. McZorn, 288 N.C. 417, 434, 219 S.E.2d 201 (1975).

{¶ 120} More than 30 hours elapsed between the initial Miranda warnings and Powell’s second interview. Admission of a defendant’s statement has been upheld when a similar amount of time had passed after Miranda warnings. See State v. Brewer, 48 Ohio St.3d 50, 59, 549 N.E.2d 491 (1990) (statement admitted that was made one day after defendant was advised of his Miranda rights by a different police department); State v. Barnes, 25 Ohio St.3d 203, 208, 495 N.E.2d 922 (1986) (statement admitted that was made about 24 hours after defendant was advised of his Miranda rights).

{¶ 121} Review of the other Roberts criteria shows that the Miranda warnings were not stale. Powell remained in continuous custody during the interval between the two statements. Gast conducted both interviews at the same location. Moreover, Powell’s second statement was primarily a more detailed retelling of the story he had already voluntarily told in his first statement, even though some new information was provided. Finally, the videotape interview shows that Powell was mentally alert on November 13.

{¶ 122} Based on these factors, we conclude, given the totality of the circumstances, that the initial Miranda warnings provided to Powell on November 12 were not stale when Gast met with Powell the next day. Thus, no new warnings were required.

{¶ 123} In addition, Powell did not need to be readvised of his Miranda rights, because he initiated the November 13 questioning about the case. See Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Detective Gast informed Powell that the purpose of their meeting on November 13 was to obtain a buccal swab. Powell initiated further conversations by asking Gast, “What is that going to prove?” Thus, Powell “evinced a willingness and a desire” to talk further about the crime. Oregon v. Bradshaw, 462 U.S. 1039, 1045-1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 51.

{¶ 124} Nevertheless, Powell argues that his Miranda rights should have been readministered because he had been drinking and it was the middle of the night when he was advised of his Miranda rights on November 12. During the first interview, Gast testified that Powell “appeared to * * * have been drinking somewhat.” Twice before the interview started, Powell blurted out that he was drunk and not faking it. He also appeared to stumble when he first entered the interview room.

{¶ 125} Before advising him of his Miranda rights, Gast asked Powell a series of questions to determine whether Powell was drunk. Powell stated his name and age, and knew that he was in the Safety Building. Powell stated that the date was November 11, but then acknowledged that it was actually November 12. Gast then said to Powell, “I’m going to ask you to try to pay attention, stay with me, okay?” Powell replied, “I’m with you one hundred percent, believe me.” Powell also indicated some awareness about Miranda rights before Gast advised him of them. Based on Powell’s responses, Gast concluded that he was not under the influence of alcohol.

{¶ 126} The rest of Powell’s videotaped interview supports the conclusion that he was not drunk. Powell’s speech became clearer once the interview began. He sat more erect in his chair, and his mannerisms became more controlled. Powell was also reasonably articulate and used legal terminology during the interview. When he changed into prison clothing midway through the interview, he was steadier on his feet.

{¶ 127} The videotape also shows that Powell was coherent, willingly answered Gast’s questions, and expressed his understanding of the Miranda rights that were read to him on November 12. In addition, Powell signed a waiver of his right to an attorney. This is strong evidence that the waiver was valid. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988). We reject Powell’s claim that his Miranda warnings were ineffective because he had been drinking.

{¶ 128} Even assuming that Powell’s second statement was improperly admitted, any error was harmless beyond a reasonable doubt. Powell’s November 13 statement was primarily a more detailed retelling of events discussed in his November 12 statement. Moreover, as discussed in proposition of law I, overwhelming evidence was introduced that established Powell’s guilt. Based on the foregoing, we overrule proposition of law III.

{¶ 129} Victim-impact testimony. In proposition of law VII, Powell argues that the trial court erred in admitting victim-impact testimony that did not concern the deceased victims. In proposition of law VIII, Powell argues that his counsel provided ineffective assistance of counsel by failing to object to that testimony.

{¶ 130} Defense counsel filed a pretrial motion to exclude victim-impact testimony. The trial court denied this motion. Except where noted, defense counsel failed to renew its objection and thus waived all but plain error. See Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34.

{¶ 131} During the guilt phase, Felicia McCollum testified that her daughter Danshi had been hospitalized in the intensive care unit (“ICU”) for burns and smoke inhalation caused by the fire. Felicia also testified that her son Antonio had been treated in the ICU for smoke inhalation. Antonio testified that he spent two days in the ICU.

{¶ 132} Lynnita Stuart testified that she was treated in the ICU after the f