State v. Spirko (59 Ohio St. 3d 1, 1991)

Sweeney, J.

Pursuant to R.C. 2929.05(A),this court is duty-bound to undertake a three-prong analysis in reviewing the instant death penally case. First, we will consider the specific issues raised by defendant with respect to the proceedings below. We will review all of defendant’s propositions of law, even though some may be deemed to have been waived since they were not raised below. Second, we will independently weigh the aggravating circumstances in this case against any and all factors which mitigate against the imposition of the death sentence. Third, we will independently consider whether defendant’s sentence is disproportionate to the penalty imposed in similar cases.

In his first proposition of law, defendant contends that evidence of polygraph examinations was improperly introduced during the course of the trial, and that the lack of a curative instruction by the court to the jury violated his rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 2, 9, 10 and 16, Article I, and Section 26, Article II of the Ohio Constitution. It is defendant’s contention that the trial court failed to follow the procedure for the admission of results of polygraph examinations established in State v. Souel (1978), 53 Ohio St. 2d 123, 7 O.O. 3d 207, 372 N.E. 2d 1318.

The first instance defendant points to occurred during the defense’s cross-examination of postal inspector Cline, a state’s witness, who stated, without comment by defense counsel, that during the course of his investigation he asked defendant if he would be willing to submit to a polygraph examination. However, we believe that a careful review of the record reveals that no results of any polygraph examination were admitted during trial, and that at no time did the state with respect to this witness introduce or attempt to introduce any information about or reference to a polygraph examination of defendant.

In our view, Cline’s statement was not prejudicial to defendant because Cline was merely responding to defense counsel’s question concerning the nature of his conversation with defendant. Inasmuch as no results of any polygraph examination of defendant were proffered or admitted during trial, the standards of Souel were not applicable in this instance.

The second instance cited by defendant occurred during the direct testimony of state’s witness Andre Ruffin, who stated that defendant told him that he had failed a polygraph examination that had been administered to him because he lied to the postal inspectors regarding the murder of Mottinger. No objection was lodged by defendant during this line of questioning. At another point during Ruffin’s testimony, he was asked on redirect examination about a polygraph examination that he had taken. However, on recross-examination, it was defense counsel who elicited from Ruffin the results of the polygraph examination administered to him.

Upon a careful and extensive review of the transcript, evidence and arguments, we find no error of the magnitude that would compel a reversal with respect to Ruffin’s testimony.

With regard to Ruffin’s testimony concerning defendant’s purported admission of having failed the polygraph examination, it is clear that such testimony was not elicited by the state but was freely given by Ruffin in response to a general question. Moreover, no objection was raised by defendant at the time this alleged error took place. In any event, given the numerous incriminating statements made by defendant to the postal authorities and others, Ruffin’s testimony in this context was insignificant.

In reviewing the alleged errors involved in Ruffin’s testimony, several aspects are readily apparent. First, no objection was made by the defense when the allegedly prejudicial statements concerning polygraphs occurred. Second, the statement that Ruffin had passed a polygraph examination was elicited by defense counsel, not the prosecution, and no curative instruction was requested by defendant at that time. In such situations, the defense cannot invite error and later complain about its prejudicial effect on appeal. See, generally, State v. Woodruff (1983), 10 Ohio App. 3d 326, 10 OBR 532, 462 N.E. 2d 457; 5 Ohio Jurisprudence 3d (1978) 97, Appellate Review, Section 543 et seq. Third, the standards of Souel, supra, were not implicated here since no polygraph examination results were admitted during the trial.

The third instance defendant submits of prejudicial statements concerning polygraph examinations was during the testimony of postal inspector Thomas Strausbaugh. The defense maintained during trial that John Willier was the person who murdered Mottinger. Strausbaugh, a rebuttal witness for the state, testified on direct examination that he had questioned Willier, and that Willier agreed to take a polygraph examination to prove that he had not committed the murder.

While the defendant contends that Strausbaugh’s testimony tended to bolster the credibility of Willier in that his alleged willingness to take a polygraph test indicates he did not murder Mottinger, we do not believe that such testimony constitutes error. Again, since no polygraph results were admitted, the standards set forth in Souel, supra, do not apply to this testimony.

In reviewing all the instances of error defendant raises in his first proposition of law, it is clear that the most damaging testimony elicited was that from Ruffin. However, the weight of Ruffin’s testimony concerning polygraph examinations is diminished by his other testimony that defendant admitted to him that he had killed the victim. While references to polygraph examinations can leave an improper impression on the factfinder since such references tend to support the testimony of a witness, there was no admission of polygraph examination results in the cause suh judice. Even though defendant eventually objected to the references to polygraph examination in Ruffin’s testimony after other witnesses had already testified, such references did not constitute error since Souel was not violated. Accordingly, we find defendant’s first proposition of law to be without merit.

In his second proposition' of law, defendant contends that an alleged confession made by him and admitted at trial had not been provided during discovery pursuant to Crim. R. 16, and that such failure to disclose deprived him of a fair trial.

This proposition of law concerns the testimony of postal inspector Hartman, who, as a rebuttal witness for the state, testified on cross-examination that defendant told him that he had killed Mottinger. Defense counsel apparently never received this oral statement through discovery, as required by Crim. R. 16(B)(1)(a)(ii).

Defendant argues that this confession should have been disclosed to him pursuant to Crim. R. 16(B)(l)(a)(ii), which states in relevant part:

“(B) Disclosure of evidence by the prosecuting attorney.

“(1) Information subject to disclosure.

“(a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may-become known to the prosecuting attorney:

"* * *

“(ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer[.]”

The state argues that the confession was not an unequivocal statement that “I killed Betty Jean Mottinger,” but, rather, it was a conclusion drawn by the postal inspector. The exact nature of defendant’s statement was never explored during trial. The statement was not elicited by the state during direct examination, and there is no indication that the prosecutor knew of the statement. Nevertheless, the fact that the prosecutor did not know of the statement does not necessarily relieve the state of its responsibility.

While it is remarkable that such an admission was not disclosed to the prosecutor and was not made part of the response to discovery, we believe that the failure to provide this statement does not necessarily warrant a reversal, absent a showing by defendant that the failure to comply with discovery requests prejudiced his ability to reveal a weakness in the state’s case or his ability to present a credible defense more effectively. See State v. Mitchell (1975), 47 Ohio App. 2d 61, 1 O.O. 3d 181, 352 N.E. 2d 636.

In State v. Parson (1983), 6 Ohio St. 3d 442, 6 OBR 485, 453 N.E. 2d 689, syllabus, we held:

“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 * * * 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.”

Accord State v. Apanovitch (1987), 33 Ohio St. 3d 19, 514 N.E. 2d 394. See, also, State v. Moore (1988), 40 Ohio St. 3d 63, 531 N.E. 2d 691.

In regard to factor one of Parson, supra, there is no evidence in this case that the nondisclosure was willful.

In regard to Parson factor two, defendant states that if he had had knowledge of the statement, he would have approached the trial differently and he would have been better informed in deciding whether to accept an alleged plea bargain offer. Defendant asserts that his decision to forgo the offered plea bargain, to testify, and to aggressively seek an acquittal, unquestionably hinged on the absence of an unequivocal confession.

In our view, this argument is purely speculative. Defendant merely argues that the disclosure of the confession could have possibly altered his decision concerning the acceptance of a plea bargain.

With respect to Parson factor three, whether the accused is prejudiced by the admission of the statement, we find that while this statement, standing by itself, could have been prejudicial, there were other witnesses who testified that defendant had admitted committing the murder.

In sum, the state’s failure to provide Hartman’s statement of defendant’s confession does not, in itself, warrant a reversal. In our view, defendant has failed to show how the state’s failure to comply with Crim. R. 16(B)(1)(a)(ii) prejudiced his ability to reveal a weakness in the state’s case or in his. ability to present a credible defense more effectively. Thus, we hold that the statement of Hartman in this realm did not deprive defendant of a fair trial and, therefore, defendant’s second proposition of law is not well-taken.

In his third proposition of law, defendant contends that the trial court erred in admitting hypnotically refreshed identification testimony without first ensuring its reliability.

This proposition concerns the testimony of two witnesses, Opal Seibert and Mark Lewis, who allegedly saw defendant or one of his accomplices outside the post office on the date and time of the kidnapping. Defendant alleges that the trial court permitted testimony that was contaminated by hypnotic procedures.

In our view, this proposition of law is without merit. There is no evidence that any new evidence was revealed by the witnesses as a result of their being hypnotized. Seibert and Lewis both stated that they did not recall anything significantly new as a result of being hypnotized. In addition, the investigators stated that, other than insignificant observations, neither witness developed any new information.

Lewis testified that he saw a strange man outside the post office a few minutes before the victim was kidnapped. When Lewis returned to the village several hours later after having driven a truckload of grain out of town, he noticed a lot of commotion in the village. He told investigators that there was a strange man outside the post office that morning as he drove away. He was subsequently hypno-' tized, and under hypnosis he was asked to again describe the man. He stated at trial that he gave the same description after being hypnotized as he had given prior to being hypnotized, except that under hypnosis he stated that the man may have had a light mustache. In addition, Lewis testified at trial that he was not “positively sure” that the man he saw outside the post office was the person he picked out of the photo array (i.e., the defendant).

Seibert testified that at the time the victim was kidnapped, Seibert was sitting on her breezeway and saw a strange man standing by a strange car. She also noticed the truck driven by Lewis go by at about the time that she was watching the strange man. She later picked out a photograph of the man whom she saw that day outside the post office (believed to be Gibson). At the suppression hearing, postal inspector Strausbaugh testified that no significant new information was revealed by Seibert:

“Q Upon a review of Mr. Sheehan’s report, were there any matters, if you know, that were different in the report, as far as the hypnotic responses of Opal Seibert, from the original responses of Opal Seibert, from the original statement that she had given to you?

“A Nothing of substance different.”

In regard to Lewis, the investigator testified that the new evidence received from Lewis was: “Nothing of substance, there was a few things about the chrome on the car and possibly one or two numbers of a license plate, but nothing of substance.”

Since the post-hypnotic information was essentially the same as the pre-hypnotic information, there clearly was no admission of hypnotically refreshed testimony of any substance or significance and, hence, no error in this context. See State v. Maurer (1984), 15 Ohio St. 3d 239, 258, 15 OBR 379, 396, 473 N.E. 2d 768, 787.

Therefore, we find defendant’s third proposition of law to be unmeritorious.

In his fourth proposition of law, the defendant contends that the trial court refused to consider relevant mitigating evidence, and improperly converted this mitigating evidence into nonstatutory aggravating circumstances. Defendant bases his arguments on the trial court’s interpretation of the report of Dr. Goodman, a court-appointed psychiatrist, who stated in his report that appellant suffered a disorder as a result of childhood abuse by his father which reduced his capacity to conform his conduct to law.

In our opinion, defendant’s arguments are not well-taken. In the first instance, it is clear that the trial court considered the mitigating evidence, i.e., Goodman’s report, even though defendant attempted to prevent his counsel from introducing it in evidence before the trial court. In our view, it is clear that the trial court considered the mitigating evidence, but found that it did not outweigh the aggravating circumstances. In the second instance, we believe that the trial court was merely considering the history, character and background of the defendant as required by R.C. 2929.04(B). The court’s consideration of the nature and circumstances of the crime does not, ipso facto, indicate that the trial court has converted them into nonstatutory aggravating circumstances. As this court stated in State v. Bradley (1989), 42 Ohio St. 3d 136, 148, 538 N.E. 2d 373, 385: “* * * a trial judge * * may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.’ State v. Stumpf (1987), 32 Ohio St. 3d 95, 99-100, 512 N.E. 2d 598, 604.”

Assuming, arguendo, that the trial court did improperly weigh the aggravating circumstances and mitigating factor, the independent review undertaken by this court will cure any error in this context. Bradley, supra, at 148, 538 N.E. 2d at 385; State v. Holloway (1988), 38 Ohio St. 3d 239, 242, 527 N.E. 2d 831, 835.

Since we find that defendant was not prejudiced as alleged, we find the foregoing arguments to be unmeritorious.

In his fifth proposition of law, defendant argues that the death penalty sentencing process under R.C. 2929.03(D)(3) is unconstitutional because it requires the imposition of the death sentence if the aggravating circumstances outweigh the mitigating factors.

As this court recently stated in State v. Jells (1990), 53 Ohio St. 3d 22, 36, 559 N.E. 2d 464, 477:

“The United States Supreme Court has recently decided that a mandatory sentencing scheme such as Ohio’s is not unconstitutional. Blystone v. Pennsylvania (1990), 494 U.S. ___, 108 L. Ed. 2d 255, 110 S. Ct. 1078; * * *."

Accordingly, the defendant’s fifth proposition of law is overruled.

In his sixth proposition of law, defendant alleges numerous instances of prosecutorial misconduct that induced the jury to convict and sentence him to death according to factors which were irrelevant and highly prejudicial.

Upon a careful review of the entire record, we find that most of the examples cited by defendant occurred when the prosecutor was commenting on evidence that had already been admitted without objection. The balance of the examples cited by defendant encompassed instances of evidence that had been admitted over objection. We find, however, that defendant has failed to cite even one example of error. under this proposition of law that deprived him of a fair trial. See Maurer, supra, at 266-267, 15 OBR at 402-403, 473 N.E. 2d at 793. Therefore, this proposition of law is not well-taken.

In his seventh proposition of law, defendant contends that the state argued several nonstatutory aggravating circumstances during its closing argument. Defendant submits that the state improperly argued about (1) community sentiment and the jurors’ duty to protect society; (2) future dangerousness of defendant; (3) defendant’s attitude toward killing; (4) defendant’s lack of remorse; (5) defendant’s involvement in unrelated and uncharged attempted murders; and (6) defendant’s being on parole at the time of the crimes.

Of the above instances, it is noteworthy that numbers 2, 3, 5, and 6 were introduced by defendant. The defendant erroneously contends that “[t]he only evidence which the prosecutor may * * * [argue] at the mitigation phase is that of the aggravating circumstances alleged and proved at the guilt phase.” This argument fails to consider R.C. 2929.04(B), which states that “* * * the court, trial jury, or panel of three judges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender * * In an uncertain twist of logic, defendant contends that any factors argued by the state other than the aggravating circumstances at the mitigation phase are necessarily nonstatutory aggravating circumstances. We find this argument to be clearly erroneous since the nature and circumstances of the offense and the history, character, and background of the defendant are to be weighed by the trier of fact pursuant to R.C. 2929.04(B), and thus can be commented upon by the prosecution in its closing argument, especially when such matters are introduced by defendant.

With respect to the state’s argument before the jury that it must protect society, this court held in State v. Byrd (1987), 32 Ohio St. 3d 79, 512 N.E. 2d 611, in a similar instance where the prosecutor argued the duty of society to protect itself by giving the defendant the death penalty, that the closing argument must be viewed in its entirety in order to determine whether the prosecutor’s remarks were prejudicial. We agree with the court of appeals below that, in viewing the argument as a whole, as is required by Byrd, supra, the prosecutor correctly stated to the jury that the state is required to prove that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and correctly implied that the jury’s decision must be based upon the evidence presented in court.

Defendant relies on State v. Johnson (1986), 24 Ohio St. 3d 87, 24 OBR 282, 494 N.E. 2d 1061, to support his premise under this proposition of law, but Johnson involved a situation where the indictment itself improperly contained nonstatutory aggravating circumstances that were in fact presented as statutory aggravating circumstances. The cause sub judiee contains no such blatant errors, and defendant has failed to support this argument with facts or law. Accordingly, this proposition of law is not well-taken.

In his eighth proposition of law, defendant argues that the trial judge committed reversible error when he remarked to prospective jurors prior to the commencement of trial that “[t]he legislature of the State of Ohio has determined that some, but not all murders, are either so heinous, shocking, or brutal that they may be punished by death.” It is defendant’s contention that such language forced the jury to consider this characterization as a nonstatutory aggravating circumstance.

Defendant objected to the trial judge’s remarks and, subsequently, the court addressed the objection and assured the parties that the objectionable words would not be made in future remarks to the jurors. At the close of trial, the court properly charged the jury without using the words “heinous, shocking, or brutal.”

In State v. Tyler (1990), 50 Ohio St. 3d 24, 38, 553 N.E. 2d 576, 593, this court held that similar comments were not objectionable, inasmuch as they were not submitted to the jurors as final jury instructions. Accordingly, we believe that defendant has failed to show that as a result of the improper preliminary remarks the jury was forced to consider nonstatutory aggravating circumstances. Therefore, based on Tyler, supra, we reject defendant’s eighth proposition of law.

In his ninth proposition of law, defendant contends that the trial court erred by denying his motion for a new trial. While defendant’s motion was not filed within fourteen days of the verdict as required by Crim. R. 33, this deadline does not apply to newly discovered evidence. Even assuming, however, that defendant’s argument in this context is based on newly discovered evidence, we find that it nevertheless is devoid of merit.

Defendant’s argument here is based on the conduct of one of the in-, vestigators, detective Ralph Eversole of the Van Wert County Sheriffs Department. It is alleged that despite an order for separation of the witnesses, Eversole regularly had contact with potential state’s witness Debra Youngs, the sister of John Willier, a person who the defense claimed was responsible for the murder. This contact consisted of daily phone calls in which Eversole told Youngs of the testimony of the witnesses who had preceded her in the trial.

Crim. R. 33 states in pertinent part:

‘ ‘(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:

U * * *

“(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state[.]”

Assuming that the allegations in the new trial motion and supporting affidavits are true, there is little doubt that the relationship between Youngs and Eversole, wherein he discussed the testimony of witnesses, was highly improper. Error would occur if, by this contact, the substantial rights of the defendant were affected.

Youngs was used as a rebuttal witness for the state. She testified that John Willier’s trailer did not have any blood in it during the week of October 10, 1984. Her testimony was used to counter the testimony of defendant that he saw “gooey” blood in the bathtub and “stains” in the kitchen of a trailer.

In our view, this testimony does not directly affect the evidence that was presented against defendant. It does, however, appear to affect his defense that Willier had committed the murder. Nevertheless, we believe that the independent evidence introduced against defendant is overwhelming enough to sustain his conviction. Thus, in light of the other evidence presented at trial, we find the substantial rights of the defendant were not affected in this context under this proposition of law.

The second allegation by appellant in his ninth proposition of law concerns Leon Connors, who testified that defendant told him of his involvement in the murder. A fellow inmate of Connors, one Paul Gardenhire, averred that Connors told him that he had been assured that he was to receive a positive recommendation to the Parole Board in exchange for his testimony. The gist of defendant’s argument is that since the state did not provide him, through discovery, with information of any deals or promises made to any witness, defense counsel was unable to effectively cross-examine Connors in regard to this alleged deal.

Upon a careful review of the record, we find that there is no credible evidence presented that Connors was promised a favorable recommendation in exchange for his testimony. Indeed, Connors testified he was put in the witness protection program because of concerns for his safety and that this action was not part of any deal. Accordingly, since defendant has failed to show how the Youngs and Eversóle relationship affected his substantial rights, and since he has not shown that Connors was given a deal, we find this proposition of law is not well-taken.

In his tenth proposition of law, defendant alleges that the prosecutor committed prejudicial error by presenting evidence to the jury during the guilt phase that defendant had been convicted of and sentenced for a prior murder since he elected, pursuant to R.C. 2929.022, to have the judge determine the existence of the murder conviction prior to sentencing and out of the hearing of the jury.

The notes of postal inspector Cline recorded that defendant told him that he wanted to make a deal and that he had previously served thirteen and a half years of a life sentence. When the inspector read that statement into evidence, he was careful not to read that particular portion of his notes referring to a life sentence. However, when the document was admitted into evidence, the reference to a life sentence was not deleted. Defendant submits that the reference to a life sentence caused the jurors to know that he had a prior murder conviction.

While defendant testified that he had been convicted of murder, he contends that he would not have taken the stand if he had known the prosecutor had already presented evidence of his prior murder conviction. We find this to be pure speculation, since it appears from defense counsel’s opening statement that defendant already had intended to testify. In his opening statement, defense counsel made references to defendant’s criminal history and intimated that certain testimony was going to be presented.

At the time Cline’s notes were admitted into evidence, apparently none of the parties remembered to delete the reference to defendant’s prior life sentence. After careful consideration, we believe that the reference to the life sentence was made inadvertently and was just as much the result of inadvertence on the part of defendant as it was of the state. Accordingly, in light of the other evidence presented by defendant with respect to his prior murder conviction, we find that the admission of evidence of his prior life sentence did not amount to prejudicial error and, therefore, this proposition of law is not well-taken.

In his eleventh proposition of law, defendant asserts that the trial court’s failure to make a complete and accurate record of one hundred forty objections and other proceedings denied him a fair trial. In thirty instances, objections were made of record followed by off-the-record bench conferences with counsel for both parties. In ten instances, the trial judge asked counsel to approach the bench, which resulted in immediate adjournments. At other times, counsel or the court asked if the attorneys could approach the bench. In addition, there were thirty-one instances during voir dire where counsel approached the bench.

Curiously, in none of the examples given by defendant has he commented on its significance; he simply argues that without a complete transcript, he could not obtain meaningful appellate review.

Upon reviewing all the instances defendant claims were improperly recorded, we find that defendant has failed to demonstrate how he was prejudiced. Clearly, defendant has not followed App. R. 9(C), which states in relevant part that “* * * the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection.” Since defendant has not followed App. R. 9(C), chose not to request to have any off-the-record conferences recorded, and most importantly, has not shown how he was prejudiced, we overrule this proposition of law.

In his twelfth proposition of law, defendant alleges ineffective assistance of counsel by his trial counsel in failing to preserve error. All the alleged errors are based largely on other propositions of law that are considered in this opinion. Based on the standard of law articulated in Strickland v. Washington (1984), 466 U.S. 668, 694, we find defendant's twelfth proposition of law to be without merit.

In his thirteenth proposition of law, defendant claims error by the trial court when it made the following instruction during the penalty phase: “Reasonable doubt is present when, after you have carefully considered and compared all the evidence, you cannot say you are firmly convinced of the truth of the charge. * * *” It is defendant’s contention that the court’s use of the words “truth of the charge” means that since the jury already found defendant guilty of the “charge” during the guilt phase, it had no choice but to recommend the death penalty. Continuing, defendant asserts that since the jury was already convinced of “the truth of the charge” at the close of the guilt phase of the trial, an unconstitutional presumption of the propriety of the death penalty was the natural result of the trial judge’s instruction.

In our view, defendant’s argument is totally devoid of merit. The trial court’s instruction on reasonable doubt was given at the end of both the guilt and penalty phases of the trial. However, defendant ignores the requirement that the jury must weigh the aggravating circumstances against the mitigating factor(s), and the trial court so stated at least three times during its instruction at the penalty phase. In addition, defendant did not object to the instruction at the time it was given. We find his arguments in this vein to be not well-taken.

In his fourteenth proposition of law, defendant argues that to allow a capital defendant the option of preventing the introduction of mitigating evidence at the sentencing hearing is to essentially permit a state-assisted suicide.

Prior to the penalty phase of the trial, defendant informed the court that he did not want his attorneys to present any mitigating evidence. The trial court engaged in a thorough inquiry of defendant concerning his rights, as well as the duty of the state to prove in the mitigation phase of the trial that the aggravating circumstances outweighed the mitigating factors. Notwithstanding the wishes of defendant, the trial court did admit into evidence a psychiatric report containing a psychiatric evaluation of defendant. However, this court held in Tyler, supra, at 27-29, 553 N.E. 2d at 583-586, that a defendant is permitted to prevent his counsel from presenting mitigation evidence. Based on the reasoning in Tyler, supra, we find this proposition of law to be without merit.

In his fifteenth proposition of law, defendant contends that the trial court abused its discretion in denying his motion for a continuance, and thus denied him due process and a fair trial.

In arguing for a continuance, defendant stated that until he could interview some out-of-state witnesses, review the postal inspector’s handbook, and try to discover further witnesses already interviewed by postal inspectors, he was not ready to go to trial. This argument is premised on a motion for a continuance made by defendant on June 21, 1984. The motion was denied and the jury selection began on July 30, 1984. The court had granted three previous motions for continuance filed on October 13, 1983, November 10, 1983, and March 9, 1984.

Prior to trial, defendant asserted in his June 21 motion that he needed a continuance because: “Counsel for the defendant has not had adequate discovery from the prosecution. The independent counsel appointed to examine the prosecution’s files has so far proven fruitless, yet investigators for the defense continue to turn up evidence and witnesses which are directly exculpatory as to John Spirko.”

Clearly, the granting of a continuance is within the discretion of the trial court. State v. Unger (1981), 67 Ohio St. 2d 65, 21 O.O. 3d 41, 423 N.E. 2d 1078, and R.C. 2945.02. Defendant, however, mistakenly relies on Johnson, supra, as authority for his position. In Johnson, this court held that the trial court should have granted a continuance because of newly discovered evidence that consisted of two witnesses who could have possibly been at the scene of the crime and were not interviewed by the investigating authorities. The defendant therein requested a one-week continuance, which was denied.

In the instant case, the information sought was clearly not of the same degree. Whether the postal inspector’s handbook was of significance is purely speculative. The defendant’s stated need to discover “further witnesses” is similarly speculative, especially since the prosecution agreed to an unprecedented procedure in which the entire investigative file was reviewed by an independent counsel, whose report was made to the court and made part of the record. The other reason given by defendant, i.e., the need to interview out-of-town witnesses, is insufficient since defendant had more than a month after the motion was filed to interview the witnesses.

In our view, the trial court did not abuse its discretion in denying the request for a continuance, inasmuch as defendant failed to indicate a particularized need for one. Accordingly, we overrule defendant’s arguments under this proposition of law.

Defendant’s next proposition of law expands on the one just discussed. In his sixteenth proposition of law, defendant asserts that the lower court abused its discretion, and thus violated his right to due process of law, when it failed to grant him a continuance to secure the testimony of two out-of-state witnesses.

The two witnesses are Doris Kilgore and Dusian Krivoski, who are employees of the Eddyville, Kentucky prison where defendant had been incarcerated. Defendant alleges that the testimony of these witnesses was crucial to support his alibi defense. Defendant submits that on August 9, 1982, he called the Eddyville prison at 2:14 p.m. to ask that his television be shipped to him in Swanton, Ohio, where he lived with his sister. Krivoski supposedly received his call and Kilgore shipped the television set. However, even if this had happened at 2:14 p.m. on the date in question, defendant still would have had time to kidnap the victim at 8:30 a.m. and return to Swanton, since Swanton is about a two to two-and-one-half hour drive from Elgin. In addition, defendant testified — and his sister, Cathy Carpenter, supported such testimony — that he was in the Swanton-Toledo area the entire day of August 9, 1982.

While defendant asserts that the trial court abused its discretion by not granting the continuance, we note that defendant had almost one year to prepare for trial, and had been granted three continuances on October 13, 1983, November 10, 1983, and March 9, 1984. After his request for the continuance in issue was denied, the trial court stated that he still had had ample time to subpoena the witnesses or to take their depositions. This, however, was not done by defendant.

In support of his argument, defendant again cites Johnson, supra, where this court held that the trial court should have granted a continuance because of newly discovered evidence of two witnesses who could have been at the scene of the crime and who had not been interviewed by authorities. As mentioned earlier, the defendant in Johnson requested a one-week continuance, which was denied. In our view, the Johnson case is not on point.

Accordingly, since defendant had previously been granted three continuances and failed to take the court’s suggestion to obtain a deposition or to enforce that subpoena, we find that he has not shown an abuse of discretion. In addition, both parties stipulated at trial that defendant had called Krivoski at the Eddyville prison, but defendant never mentioned during trial the exact time of 2:14 p.m. Even assuming that defendant had made the call at 2:14 p.m., he still would have had ample time to kidnap the victim at 8:30 a.m. and travel to Swanton by 2:14 p.m. The trier-of-fact apparently chose not to believe his alibi, and it is our view that such testimony would have added little to the purported alibi.

Since we believe the trial court did not abuse its discretion in not granting the continuance, Unger, supra, we reject defendant’s arguments under this proposition of law.

In his seventeenth proposition of law, defendant argues that he was deprived of due process when the trial court advanced the date of the mitigation hearing. We believe, however, that since the defendant declined to present any mitigation evidence, no compelling reason existed not to have the hearing held as soon as possible.

Once again, it should be underscored that defendant informed the court that he had forbidden defense counsel to call any mitigation witnesses on his behalf. The court then conducted an extensive interview with defendant, informing him of all his rights, and he clearly chose to waive his right to present mitigation evidence.

Defendant also signed a waiver of rights form, which was made a part of the record and filed on August 27, 1984. Defendant requested the jury to impose the death penalty, even though he continued to maintain his innocence. Since a defendant is permitted to prohibit his attorney from presenting any mitigation evidence, Tyler, supra, defendant here has failed to show how he was deprived of a fair trial. Accordingly, this proposition of law is not well-taken.

In his eighteenth proposition of law, defendant contends that the death sentence must be set aside, since the trial court considered irrelevant and prejudicial factors and failed to consider mitigating evidence.

We find defendant’s arguments here are not well-taken. Defendant alleges that the trial court considered aggravating circumstances that were not contained in the indictment. This, however, is not true. While citing the nature and circumstances of the crime, the trial court stated that “[t]he defendant, by his own admission states that the victim was kidnapped from the scene of this less than significant theft for the sole reason that she could recognize their faces and thus identify them to law enforcement officers subsequently investigating the robbery.” This clearly constitutes a consideration of the nature and circumstances of the crime. The statutory circumstances that were contained in the indictment and proven at trial were cited by the court at the beginning of its sentencing opinion.

Upon a careful review of the record, we find that there is no evidence that the court considered aggravating circumstances that were not part of the indictment.

Defendant also asserts that the court considered nonstatutory circumstances such as evidence of sexual assaults on the victim, that defendant was glad that he had participated in the crime, the future dangerousness of the defendant, the helplessness of the victim, and the similarity of this crime to the other murder defendant had committed. This, again, is merely a recitation of the nature and circumstances of the crime and the history of the defendant. Accordingly, we overrule this proposition of law.

In his nineteenth proposition of law, defendant contends he was denied due process when the trial court failed to conduct a competency hearing upon defendant’s decision to preclude presentation of mitigation evidence on his own behalf. However, we find that there is no requirement that a court hold a competency hearing where the defendant indicates that he wishes to prohibit his attorneys from presenting mitigating evidence. R.C. 2945.37 states that if the issue of competency is raised during trial, the court must hold a hearing only for good cause shown. In Tyler, supra, at 29, 553 N.E. 2d at 585, this court held: “Thus, even if a capital defendant waives mitigation completely because he wants to be executed, that waiver does not by itself call his competence into question.”

In the instant cause, the court specifically asked defendant whether there was anything the court should be aware of concerning his mental or physical condition that would have any bearing on its decision to prohibit his counsel from presenting mitigating evidence on his behalf. Defendant responded in the negative.

Based on R.C. 2945.37 and Tyler, supra, we overrule the foregoing proposition of law.

In his twentieth proposition of law, defendant contends that the record developed during both the guilt and penalty phases of trial is so replete with errors that the sentence of death rendered below is unreliable and inappropriate. Defendant’s argument here is a catchall proposition of law, because he claims that all the errors committed below are so numerous' that to list them all would double the length of his brief. Defendant points out that the main errors are spelled out in other propositions of law before this court.

In our view, this proposition of law is not well-taken since defendant has failed to provide examples of the other errors committed below that this court should consider. Upon a careful review of the entire record and the court of appeals’ decision below in light of R.C. 2929.05, we overrule defendant’s twentieth proposition of law.

In his twenty-first proposition of law, defendant claims he was denied effective assistance of counsel since his “jailhouse lawyer,” Leon Connors, was permitted to testify against him. Defendant submits that since Connors assisted him in filing some motions before the trial court, this created an attorney-client relationship which would compel exclusion of Connors’ testimony under the attorney-client privilege.

We find defendant’s arguments in this vein to be unmeritorious. In order for the communication between Connors and defendant to be excluded, Connors must have been engaged to represent defendant as legal counsel. R.C. 2317.02(A). Here, no attorney-client relationship was established, inasmuch as Connors was not a licensed attorney. In addition, we find nothing in the record to indicate that the information obtained by Connors from defendant was obtained prior to the time Connors ever contacted the investigators involved in the Mottinger murder case. Accordingly, this proposition of law is not well-taken.

In his twenty-second proposition of law, defendant contends that the state failed to inform him of the charges filed against him, thus causing an “unavoidable surprise” which hampered his defense.

We find this proposition of law to be without merit. In the original indictment, Count II provided as follows: “John George Spirko, Jr. did on or about August 9, 1982, purposely, and with prior calculation and design, cause the death of Betty J. Mottinger, same being Aggravated Murder, a capital offense in violation of ORC 2903.01(B).” The state was later granted a motion to amend the indictment to state that the correct section was R.C. 2903.01(A). The language of 2903.01(A) states that “[n]o person shall purposely, and with prior calculation and design, cause the death of another.” Upon a careful review of the record, it is clear that the state merely caused the correct section number to be applied to the indictment. The language itself was not changed, and it is unclear how defendant can claim that he was “surprised” in any way. Pursuant to Crim. R. 7(D), the trial court may at any time amend the indictment as long as no change is made in the name or identity of the crime charged. Based on the foregoing, this proposition of law is summarily rejected.

In his twenty-third proposition of law, defendant argues that the state, as a matter of law, cannot use a general intent murder statute of another state in order to prove a death penalty specification.

R.C. 2929.04(A)(5) is an aggravating circumstance directed at those defendants who are repeat offenders (see Committee Comment to former version of R.C. 2929.04[A][5] in H.B. No. 511). Under this provision, the state was required to prove that the defendant was convicted of murder under a Kentucky statute “* * * an essential element of which was the purposeful killing of * * * another.”

Defendant attempts to argue that the Kentucky statute is a general-intent statute; however, the jury instructions given by the Kentucky court at the end of defendant’s trial there stated: “The word ‘willfully,’ as used in these Instructions, means: intentionally, not accidently [sic] or involuntarily.” Since “purposely,” as defined by R.C. 2901.22, states “[a] person acts purposely when it is his specific intention to cause a certain result * * we find no merit to defendant’s argument that the prior conviction in Kentucky does not conform to the requirement of a prior purposeful killing, since “willfully” in Kentucky is, for all practical purposes, identical to “purposely” under Ohio law. Accordingly, this proposition of law is not well-taken.

In his twenty-fourth proposition of law, defendant contends that he was deprived of a fair trial when the court dismissed a prospective juror without a challenge or finding of unsuitability.

We believe this proposition of law is unmeritorious. The prospective juror, Sherrill Giessler, stated to the court during voir dire examination that under no circumstances could she recommend a sentence of death. The record indicates that she was examined by both sides. The pertinent part of her testimony was as follows:

“Q You would not follow the Judge’s instructions from the bench, if that would be the case, and I am not necessarily saying that it would be — but you would not follow that, you would not be able to complete your sworn duty as a juror in this matter, to abide by the Court’s instructions of the law?

“A No.”

R.C. 2945.25(C) provides in relevant part that a person may be challenged for cause if, “[i]n the trial of a capital offense, * * * he unequivocally states that under no circumstances will he follow the instructions of a trial judge and consider fairly the imposition of a sentence of death in a particular case. * * *”

In State v. Rogers (1985), 17 Ohio St. 3d 174, 17 OBR 414, 478 N.E. 2d 984, this court held in paragraph three of the syllabus: “The proper standard for determining when a prospective juror may be excluded for cause based on his views on capital punishment is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath * * *.” Based on this standard, we find that the court below took the appropriate action by dismissing prospective juror Giessler. Accordingly, we overrule this proposition of law.

In his twenty-fifth proposition of law, defendant argues that he was denied a fair trial based on the trial court’s dismissal of three prospective jurors without the opportunity for defense counsel’s questioning.

A review of the transcript reveals that the three jurors unequivocally stated before the court that under no circumstance would they recommend the death penalty.

This court held in State v. Jenkins (1984), 15 Ohio St. 3d 164, 186, 15 OBR 311, 330, 473 N.E. 2d 264, 286, that “[t]he general rule is that the scope of the examination of prospective jurors is within the discretion of the trial court 'and the judgment will only be reversed upon a showing that the trial court abused its discretion in restricting the scope of voir dire. * * * [Citations omitted.]” Clearly, the court here did not abuse its discretion by dismissing the three prospective jurors who unequivocally stated that they could not recommend the death penalty. Rogers, supra. Accordingly, this proposition of law is not well-taken.

In his twenty-sixth proposition of law, defendant asserts that the trial court committed prejudicial error in denying his challenge for cause on prospective juror, Julie Ann Doner, and thus forced him to exhaust prematurely one of his- peremptory challenges.

During voir dire, the following exchange with Doner took place:

“Q * * * Do you think this guy might have done it; he probably did do it; what’s your impressions?

“A Well, I suppose again, since his name has been connected, he has been charged, you know, I would feel, you know, more that he would be — I don’t want to say guilty, but I feel that he is more likely to be guilty than someone else, and yet they, you know, when they said they caught, or you know, had them in custody, you know, I did breathe a little sigh of relief that, oh, they did get the guy, so, yes, I would agree with you there.”

However, upon further inquiry, Doner stated that she could set aside her bias, and base her decision solely on the evidence presented at trial:

“It might have a certain bearing, but I think it’s a little different when you are sitting on the jury, if that’s where I would end up, that you would listen to the evidence more closely; you would pay attention; you would start out fresh; whereas if you are just, I want to say outside, just reading the papers and such, you just, you know, if you are not involved with it, you might. just say they have got the guy and forget about it; whereas, I believe, you know, being more involved with it, yes, I could put it aside.”

R.C. 2945.25(B) provides that: “* * * [N]o person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.” See, also, Rogers, supra.

Since we find that the trial court did not abuse its discretion with respect to its decision concerning Doner, we overrule this proposition of law.

In his twenty-seventh proposition of law, defendant argues that the trial court erred in failing to grant his motion requesting a change of venue. Defendant submits that his counsel had conducted a public opinion poll of residents of Van Wert County which tended to show knowledge of the Mottinger murder and prejudice against the defendant. In addition, defendant claims that the public was saturated with stories about the case, and that the press reported details of the crime in a lurid manner. Defendant also claims a change of venue was necessitated by press reports that he was on parole and that he had a prior criminal record involving, inter alia,. murder and felonious assault.

Crim. R. 18(B), R.C. 2901.12(1) (now [K]) and 2931.29 provide for a change of venue when it appears to the court that a fair and impartial trial cannot be held in the county where a cause is pending.

In State v. Fairbanks (1972), 32 Ohio St. 2d 34, 37, 61 O.O. 2d 241, 243, 289 N.E. 2d 352, 355, this court stated in relevant part:

“A change in venue rests largely in the discretion of the trial court, and there are numerous cases holding that appellate courts should not disturb the trial court’s ruling on a motion for a change of venue in a criminal case unless it is clearly shown that the trial court had abused its discretion. * * * [Citations omitted.]

“* * * Newspaper accounts and radio broadcasts of a factual nature and without distortion, or which are noninflammatory in character, do not establish the impossibility of a defendant to have a fair and impartial trial where jurors have not read or heard the reports or such prospective veniremen have testified on voir dire that they will judge the defendant solely on the law and evidence presented at trial.” Accord Maurer, supra, at 250, 15 OBR at 388-389, 473 N.E. 2d at 780-781.

In addition, we also noted in Maurer, supra, that “[i]thas long been the rule in Ohio that ‘[t]he examination of jurors on their voir dire affords the best test as to whether prejudice exists in the community against the defendant * * ” Id. at 251, 15 OBR at 389, 473 N.E. 2d at 781, quoting State v. Swiger (1966), 5 Ohio St. 2d 151, 34 O.O. 2d 270, 214 N.E. 2d 417, paragraph one of the syllabus.

In the instant case, after undergoing an extensive voir dire encompassing approximately five days, the jurors who were ultimately selected all stated that they were not biased with respect to the guilt or innocence of defendant, that they would listen to the evidence presented, that they would follow the judge’s instructions and the law, and that they were not influenced by the media.

In. our view, the responses from the jurors selected clearly complied with the standard enunciated in State v. Thompson (1987), 33 Ohio St. 3d 1, at 5, 514 N.E. 2d 407, at 412, concerning pretrial publicity: “In making this decision, the trial court should scrutinize closely the voir dire examination of prospective jurors. An important consideration in deciding whether pre-trial publicity has acted to prevent the defendant from having a fair trial is whether a ‘* * * juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court * * *.’ Irvin [v. Dowd (1961), 366 U.S. 717,] * * * 723.”

Here, the court presided over an extensive voir dire and the selected jurors responded that, in light of the pretrial publicity, they would follow the law and base their decision on the evidence presented at trial. The court’s reliance on the truthfulness of the juror’s responses was not, in our opinion, an abuse of discretion that warrants a reversal. Therefore, the foregoing proposition of law is not well-taken.

In his twenty-eighth proposition of law, defendant contends that he was deprived of a fair trial because the court abused its discretion in restricting defendant’s voir dire examination of prospective jurors. We disagree.

The questions upon which objections were sustained do not, in our view, clearly involve an “abuse of discretion” as this court has defined that term. See, e.g., Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E. 2d 855, paragraph two of the syllabus. In fact, one could characterize all the prohibited questions as being largely irrelevant. As such, having found no abuse of discretion on the part of the trial court, we reject defendant’s arguments under this proposition of law.

In his twenty-ninth proposition of law, defendant argues that he was denied a fair trial as a result of the trial court’s failure to suppress his statements that were made to the postal inspectors.

Defendant alleges that the statements made to postal inspectors were made for the sole purpose of assisting the state in convicting the actual murderers in the Mottinger case, and that it was implied to him that the statements he made would not be used against him.

Contrary to the assertions of defendant, prior to each time he talked to the postal inspectors, he signed a warning and waiver of rights containing the standard Miranda warnings, which included the statement that anything he said could be used against him in court.

The record indicates that defendant was not offered immunity, but that he did agree to the following in exchange for his information:

(1) that the state recommend that the defendant serve concurrent sentences for the two counts of felonious assault to which the defendant pleaded guilty;

(2) that the remaining charges against the defendant in Fulton County be dismissed as soon as the defendant provided full and complete information regarding the robbery, abduction and homicide of the Elgin postmaster;

(3) that the state assist the federal government in placing the defendant in the Federal Witness Protection Program during and after sentencing and that the defendant serve his sentence in a federal penal institution; and

(4) that the state recomm end probation for the defendant’s girlfriend, LuAnn Smith.

We find that defendant was fully informed of his Miranda rights each time he talked to the postal inspectors, and that there has been no showing that any of his statements to the postal inspectors was involuntary. Accordingly, we overrule the foregoing proposition of law.

In his thirtieth proposition of law, defendant contends that there was a contract between him and the postal authorities in which the defendant disclosed information in regard to the Mottinger case for informational purposes only, and not so that he could later be prosecuted. Since he was prosecuted, defendant asserts that the state has breached the contract and, as a result, the state must uphold its bargain with defendant by either putting him in the place he was before being indicted, or by suppressing the statements he made to the postal authorities.

Upon a careful review of the record, we find no evidence of any such agreement. Defendant signed a waiver of rights form which included the acknowledgement that anything he said could be used against him in court. Although the defendant was offered an agreement in this case, no part of the agreement discussed immunity as to these charges.

Accordingly, since defendant has failed to establish the existence of any other agreements, this proposition of law is not well-taken.

Defendant, in his thirty-first proposition of law, asserts that he was deprived of a fair trial by the use of evidence illegally seized from his prison cell.

Defendant’s argument in this vein concerns an unmailed letter that was found in his prison cell during a search after he attempted to commit suicide. The letter, referred to by the prosecutor during trial, contained an admission by defendant that he had stolen some goods from the residence of his girlfriend.

In Hudson v. Palmer (1984), 468 U.S. 517, the United States Supreme Court held that prisoners do not have an expectation of privacy, and that the Fourth Amendment prohibition against unreasonable searches and seizures does not apply to them.

While acknowledging the holding of Hudson, defendant nevertheless argues that the prohibition applies only to searches that are directed toward prison security. We disagree. The language of the court in Hudson is unequivocal:

“* * * [W]e hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. * * *” Id. at 525-526.

In his thirty-second proposition of law, defendant contends that a suggestive ' photo array presented to witness Mark Lewis led to the misidentification of him as a suspect who was present at the crime scene.

At trial, Lewis testified that he was shown three photo arrays five months after the incident, and that he picked out the defendant’s picture from one of the arrays. When asked how certain he was that defendant was the person he had seen outside the post office shortly before the victim was kidnapped, he stated that h