State v. Murphy (91 Ohio St. 3d 516, 2001)

Alice Robie Resnick, J.

Defendant-appellant, Ulysses C. Murphy, was convicted of murdering Andre Brooks during an aggravated robbery and was sentenced to death.

Andre Brooks lived in Mansfield. His sister, Condrea Webber, lived in Columbus. On a weekend in May 1997, Webber went to Mansfield to visit her family. On Saturday, May 10, she drove back to Columbus with Brooks.

They went to the C&S Lounge, a bar on the East Side of Columbus. Arriving sometime before 1:00 a.m., May 11, they left around 2:00 a.m. and went to the F&H Grill.

The F&H occupied a two-story building; the second floor was an “after-hours bar,” i.e., an establishment that serves liquor after the lawful closing time. Webber and Brooks stayed until about 3:30 a.m.

Murphy was also in the F&H that night. Frank Green, who frequented the F&H and knew Murphy, later testified that Murphy left “[m]aybe a couple minutes” after Brooks and Webber. Brooks was wearing several gold chains around his neck that evening. These had attracted Murphy’s notice, and he decided to rob Brooks to get them.

Brooks and Webber were near the car when Murphy told them to put their hands up and ordered Brooks “to take off his gold.” Brooks asked Murphy to let Webber get into the car.

As Webber fumbled with the keys, she accidentally set off the car alarm. Brooks told her how to shut it off, while continuing to ask Murphy to give her a chance to get in. Murphy was pointing his gun at Brooks the entire time. Finally, Webber got in, started the car, and put it in drive. Brooks and Murphy were standing at the rear of the car, and Webber could see them in her rear-view mirror. (Although it was night, and the car’s rear windshield appears to be tinted, the car was near an outdoor light.)

Brooks tried to take his gold chains off, with Murphy continually demanding that he “hurry up.” Then Brooks tried to scare Murphy away by telling his sister to “reach underneath the seat.” But Webber, afraid to support Brooks’s bluff, opened the door and turned around to assure Murphy that she had no gun. It was then that she got her best look at Murphy.

Webber then closed the car door but continued to watch the robbery in the rear-view mirror. Murphy kept yelling at Brooks that he was “moving too slow.” Webber then saw Murphy, who was standing slightly over an arm’s length from Brooks, take a step back. She heard two quick shots; then her brother screamed and fell. According to Webber, Brooks was shot while still trying to take his chains off. Webber hit the gas pedal and sped to a nearby White Castle restaurant to summon a police officer.

An autopsy showed that Brooks died of two gunshot wounds. One bullet entered the inside of Brooks’s upper left arm near the armpit and went into his torso, breaking a rib, which lacerated his lung and caused bleeding. The other entered his lower back and severed an artery.

Police found three spent shell casings where Brooks was shot. Mark Hardy, a Columbus police criminalist and firearms specialist, examined the casings. Based on firing-pin impressions, extractor and ejector marks, and breech marks found on each casing, Hardy concluded that all three had been ejected from the same gun. Hardy also concluded that both bullets extracted from Brooks’s corpse were fired from one gun.

Police showed Webber a photographic array, and she identified Murphy as her brother’s killer. She later identified him again in court.

Murphy was arrested and interrogated. At first he denied everything. Ultimately, he admitted that he had shot Brooks while trying to rob him of his chains. He claimed that the gun had accidentally gone off because Brooks tried to grab it. However, he admitted firing a second shot at Brooks when, according to Murphy, Brooks tried to run away after the first shot.

Murphy was indicted for aggravated murder, aggravated robbery, and having a weapon under disability. The aggravated murder count carried a felony-murder death specification. Each count also carried a firearm specification. He was convicted on all counts. After a penalty hearing, he was sentenced to death.

In this appeal, appellant raises twenty propositions of law attacking the validity of his convictions and death sentence. After full consideration, we overrule each proposition of law. We have also independently reviewed appellant’s death sentence, as R.C. 2929.05(A) charges us to do, by reweighing the felony-murder aggravating circumstance against the mitigating factors and measuring the sentence in this case against sentences imposed in similar cases. Our analysis leads us to the conclusion that appellant’s convictions and death sentence must be affirmed.

I. Fifth Amendment Issues

In his first proposition of law, appellant contends that his videotaped confession should have been suppressed. He contends, first, that he did not waive his right to remain silent; second, that police continued to interrogate him after he invoked his right to cut off questioning. See Michigan v. Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313.

A. Waiver

At 10:38 p.m., May 11, 1997, Detective Viduya began appellant’s interrogation by administering Miranda warnings. See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Viduya then had appellant read the Miranda warnings aloud and asked, “Can you explain to me what that means to you?” Appellant stated, “That means I ain’t got to say nothing right now, ’til I talk to my lawyer.”

After advising appellant of his rights, Viduya did not specifically ask him whether he desired to waive his rights, nor did he ask appellant to sign a waiver form. However, he did explain appellant’s rights to him in simple terms. He did give appellant a waiver form, had him read the form aloud, and made sure he understood it. Only then did Viduya proceed to interrogate appellant.

The trial court, ruling on appellant’s motion to suppress his ensuing confession, found that appellant understood his rights and displayed “no hesitation” in talking with Viduya. The court also found that appellant had voluntarily waived his right to remain silent.

Appellant contends that he never waived his right to remain silent at all. He stresses the fact that he never signed the waiver-of-rights form and that the trial court improperly found that he implicitly waived this right by talking with police.

It is settled law that a Miranda waiver need not be expressly made in order to be valid. North Carolina v. Butler (1979), 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292. A court may infer a waiver from the suspect’s behavior, viewed in light of all the surrounding circumstances. See cases cited infra.

The trial court inferred waiver from appellant’s actions. In our view, the record supports that inference. Even though Viduya did not ask appellant if he wished to give up his rights, he did ask him whether he understood his rights. Not only did appellant affirm that he understood his rights, he showed his understanding of the right to remain silent: “That means I ain’t got to say nothing right now, ’til I talk to my lawyer.” He also understood the concept of a waiver: “That means I can talk to you if I want to.”

When Viduya questioned him, appellant spoke with no visible reluctance. His original story was exculpatory, and he evidently believed that if he told it well, he would be released. (Thus, once he had told it, he informed Viduya that he was “ready to go home.”)

Where a suspect speaks freely to police after acknowledging that he understands his rights, a court may infer that the suspect implicitly waived his rights. See, e.g., United States v. Ogden (C.A.5, 1978), 572 F.2d 501, 502-503; Gorham v. Franzen (C.A.7, 1985), 760 F.2d 786, 795; United States v. Hilliker (C.A.9, 1970), 436 F.2d 101; People v. Sully (1991), 53 Cal.3d 1195, 1233, 283 Cal.Rptr. 144, 167, 812 P.2d 163, 185-186; State v. Williams (1993), 334 N.C. 440, 464-465, 434 S.E.2d 588, 602-603, vacated on other grounds, North Carolina v. Bryant (1994), 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42; State v. McCluskie (Me.1992), 611 A.2d 975, 977; People v. Sirno (1990), 76 N.Y.2d 967, 563 N.Y.S.2d 730, 565 N.E.2d 479. A suspect’s acknowledgment that he understands his rights should not, perhaps, “inevitably carry the day,” but such an acknowledgment “is especially significant when defendant’s incriminating statement follows immediately thereafter,” as was the case here. 2 LaFave, Israel & King, Criminal Procedure (2 Ed.1999) 592, Section 6.9(d), citing Billings v. People (1976), 171 Colo. 236, 466 P.2d 474.

The surrounding circumstances also suggest that appellant’s waiver was voluntary. Viduya’s manner was not threatening; there is no evidence that police used coercive tactics to obtain the waiver. Appellant told Viduya that he was sober, and this was confirmed by his appearance and demeanor in the video. Thus, the record supports the trial court’s finding that appellant voluntarily waived his rights.

B. Assertion of Rights

Michigan v. Mosley, supra, holds that once a suspect invokes his right to remain silent, police must cease to question him. The invocation does not bar further questioning altogether, but police must scrupulously honor the defendant’s exercise of his right to cut off questioning. Mosley, 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321, citing Miranda, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

In this case, appellant told Detective Viduya that he had not been involved in the crime. After telling his version, he said, “I’m ready to quit talking now and I’m ready to go home, too.” Viduya left the interrogation room for a few minutes to consult another detective. When he came back, he brought a crime scene technician with him, and the interrogation resumed. Appellant answered without apparent reluctance, and ultimately confessed to holding Brooks up and shooting him.

Appellant contends that his statement to Viduya that he was “ready to quit talking, and * * * go home, too” was an expression of his desire to stop talking, hence an invocation of his right to remain silent. Since Viduya did not “scrupulously honor” that invocation, appellant contends, his confession should have been suppressed.

However, police must honor an invocation of the right to cut off questioning only if it is unambiguous. Davis v. United States (1994), 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362, holds that “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney. * * * [W]e decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-462, 114 S.Ct. at 2356, 129 L.Ed.2d at 373.

Although Davis dealt with invocations of the right to counsel, we think it also applies to the right to remain silent. “[E]very circuit that has addressed the issue squarely has concluded that Davis applies to both components of Miranda: the right to counsel and the right to remain silent.” Bui v. DiPaolo (C.A.1, 1999), 170 F.3d 232, 239.

Although a suspect “need not ‘speak with the discrimination of an Oxford don,’ ” Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371, quoting id. at 476, 114 S.Ct. at 2364, 129 L.Ed.2d at 382 (Souter, J., concurring in judgment), a suspect “must articulate his or her desire to remain silent or cut off questioning ‘sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be’ an invocation of the right to remain silent.” State v. Ross (1996), 203 Wis.2d 66, 78, 552 N.W.2d 428, 433, quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371; see, also, United States v. Mikell (C.A.11, 1996), 102 F.3d 470, 476. If the suspect says something that may or may not be an invocation of the right, police may continue to question him; they need not treat the ambiguous statement as an invocation or try to clear up the ambiguity. See Ross, 203 Wis.2d at 75-76, 552 N.W.2d at 432, and fn. 4 (citing cases); State v. Owen (Fla.1997), 696 So.2d 715, 717-718; State v. King (Me.1998), 708 A.2d 1014, 1017. Thus, appellant’s claim turns on whether his statement was an unambiguous invocation of his right to stop talking.

The first part of his statement — “I’m ready to quit talking” — might well be read as an unambiguous invocation of the right to remain silent if examined in isolation. However, we must examine appellant’s words not in isolation but in context. His full statement was: “I’m ready to quit talking and I’m ready to go home, too.” (Emphasis added.)

This statement can be interpreted as meaning simply that appellant was ready to “go home.” In Moore v. Dugger (C.A.11, 1988), 856 F.2d 129, 134, the question “When will you all let me go home?” did not amount to so much as an equivocal invocation of the right to silence. Obviously, if appellant had gone home, he would also have stopped talking to the police. What is not clear, however, is whether his readiness to stop talking was independent of his desire to go home.

What appellant appears to have wanted was to be released. Talking to the police was a means to that end; he was trying to persuade them that he was innocent. Thus, his words did not necessarily mean that he wanted to stop talking, no matter what. If the police were not ready to let him go, he may well have wanted to keep trying to persuade them of his innocence.

We conclude that appellant’s statement was not an unequivocal assertion of his right to remain silent. Such an ambiguous statement could create no obligation for the police to suspend their questioning of a criminal suspect. We therefore overrule appellant’s second proposition of law.

II. Request for New Counsel

In his fourth proposition of law, appellant contends that the trial court abused its discretion in denying him a continuance so that he could seek to retain counsel to replace his appointed counsel after he became dissatisfied with them.

At arraignment, appellant requested appointed counsel and filed an affidavit of indigence, in which he represented under oath that he was “financially unable to retain private counsel without substantial hardship to me or to my family.” The trial court assigned appellant two assistant county public defenders. Appellant later became dissatisfied with their advice, so they sought leave to withdraw. The court granted leave, continued the trial date, and assigned Terry Sherman and Debra Gorrell to represent appellant (who had asked specifically for Sherman).

However, appellant soon became dissatisfied with Sherman and Gorrell. On May 1, 1998, the first day of voir dire, Sherman and Gorrell sought leave to withdraw and requested another continuance so that appellant could retain private counsel. According to Sherman, appellant asked his attorneys to withdraw because, thinking the case “almost impossible to win,” Sherman had advised him to “consider an option other than trial.” Sherman noted that appellant had nothing against him personally and added, “I like Mr. Murphy a lot.”

Appellant stated that “there is nothing inaccurate” in Sherman’s statement. Although appellant thought Sherman and Gorrell were “great lawyers,” he explained that he wanted to hire his own lawyer because he did not trust a state-paid lawyer to work in his best interest. However, appellant also admitted, “I’m not really sure if I’m going to have the money” to retain counsel, but he wanted thirty days to try and raise it.

Noting that seventy-eight prospective jurors had been called into court, the trial judge overruled the motions for withdrawal and continuance. Appellant then refused to cooperate further and asked to be taken back to his cell. The court granted this request and proceeded with voir dire.

By the next court session, appellant agreed to return to court. That morning, Sherman protested a proposal to put a “stun belt” on appellant. Sherman’s representations to the court on this point throw considerable light on his relationship with appellant. Although appellant had been “mouthy,” Sherman believed that he now had his client “under control.” He stated that appellant “hasn’t displayed any problems while he has been incarcerated nor any problems while he was here Friday [May 1]. He did what we told him. He * * * didn’t cause any problems.” Sherman warned that putting a stun belt on appellant would only “cause me to lose the ground that I’ve gained, and I need to work with this guy.” (Emphasis added.)

However, before opening statements on May 11, Sherman informed the trial judge that counsel and client were having “a fundamental disagreement” on how to proceed. Sherman believed that, since the court had declined to suppress appellant’s confession, the best remaining defense was to concede that appellant had killed Brooks but argue that he lacked the intent to kill. However, appellant told Sherman that he did not want to take that course.

Nevertheless, Sherman told the jury in his opening statement that appellant killed Brooks and that the sole issue was whether he had done so with the intent to kill. He then discussed the evidence and told the jury that “you will not find that there was a specific intent to kill.”

At the beginning of the next day’s session, appellant requested a mistrial because counsel had disregarded his wishes in choosing a defense. Addressing the court, appellant said, “Now, counsel and myself have discussed my defense, and I made it perfectly clear that I was innocent. * * * I made it very clear that I didn’t want to go in to trial with that defense, but he did it anyway.” (Emphasis added.)

Sherman then told the court that he and appellant were communicating and “getting along.” He stated that he and co-counsel had discussed various defense options with appellant, shown him witness-interview summaries, police reports, and investigative reports, and conveyed the state’s plea offer. Sherman understood that appellant “did not want us to proceed the way I proceeded.” Sherman had explained his view of the case to appellant and asked him to suggest “any plausible * * * avenue that I can pursue.”

Against this factual background, appellant advances three related Sixth Amendment claims.

First, appellant contends that the trial judge should have assigned different counsel to represent him during the trial court’s inquiry into his request for a change of counsel, when it became apparent that his attorneys had essentially “abandoned” him by taking a position contrary to his wishes. We cannot agree. Appellant’s sole authority for this claim is United States v. Wadsworth (C.A.9, 1987), 830 F.2d 1500, 1510-1511, but we find Wadsworth distinguishable. Defense counsel in that case had taken an “adversary and antagonistic” stance toward his client’s right to counsel. Id. at 1511. But here, Sherman was not averse to appellant’s request for new counsel. Nor were he and appellant personally antagonistic, as the record makes clear. Hence, there was no need to assign appellant different counsel for the inquiry.

Second, appellant takes issue with the result of that inquiry. He contends that his motion for a continuance so that he could hire his own counsel should have been granted.

The determination of whether to grant a continuance is entrusted to the broad discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65, 21 O.O.3d 41, 423 N.E.2d 1078, syllabus. Relevant factors include “the length of delay requested, prior continuances, inconvenience, [and] the reasons for the delay.” State v. Landrum (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710, 721.

Moreover, “[a]n indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130, quoted in State v. Cowans (1999), 87 Ohio St.3d 68, 72, 717 N.E.2d 298, 304. If his complaint is unreasonable, the trial judge may deny the requested substitution. State v. Deal (1969), 17 Ohio St.2d 17, 46 O.O.2d 154, 244 N.E.2d 742, syllabus. In evaluating a request for substitute counsel, the court must balance “the accused’s right to counsel of his choice [against] the public’s interest in the prompt and efficient administration of justice.” United States v. Jennings (C.A.6, 1996), 83 F.3d 145, 148. “The trial court’s decision is reviewed under an abuse-of-discretion standard.” Cowans, 87 Ohio St.3d at 73, 717 N.E.2d at 304, citing Iles, 906 F.2d at 1130, fn. 8.

Appellant alleges a complete breakdown in communication between him and his assigned counsel. Although there is no right to a “meaningful attorney-client relationship,” Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621, a “total lack of communication preventing an adequate defense” is a factor the court should consider in evaluating a defendant’s request for substitute counsel. Jennings, 83 F.3d at 148. See, also, Cowans, supra, at 73, 717 N.E.2d at 305.

The record does not indicate any breakdown of communications between appellant and his attorneys. Instead, “the record is replete with references to [counsel’s] discussions with the defendant.” Iles, 906 F.2d at 1132. Appellant admitted that he had discussed his defense with counsel and believed he had made his position clear to them. Sherman’s statements also show that communication was taking place, and that he understood what appellant wanted. This was not a breakdown in communications but rather a disagreement as to the best line of defense.

Appellant had already had at least two continuances and one change of counsel. His new request, coming on the first day of voir dire, was ill-timed. And the judge had no reason to believe that appellant could hire counsel. Appellant had already claimed indigence, and he admitted that he still did not have the money to hire a lawyer and was not sure he could get it.

We conclude that the trial court did not abuse its discretion either by denying appellant’s request for continuance or by denying Sherman and Gorrell leave to withdraw.

Finally, appellant contends that his counsel rendered ineffective assistance by pursuing a strategy against his wishes. Appellant cannot and does not contend that the Constitution reserves the selection of trial strategy to the defendant’s personal choice. Decisions about “the viability of certain defenses” are “within the exclusive province of defense counsel to make after consultation with his client.” Lewis v. Alexander (C.A.6, 1993), 11 F.3d 1349, 1354.

Instead, appellant argues that counsel were ineffective in rejecting his desired course, because it was “just as reasonable” as the course counsel pursued. However, that implies that counsel’s strategy was also as reasonable as appellant’s — a concession that dooms appellant’s ineffective-assistance claim. To prevail on such a claim, a defendant must show that counsel’s actions were professionally unreasonable. See Strickland v. Washington (1984), 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695-696. Appellant can hardly claim that counsel’s strategic choice was unreasonable in light of his confession. Hence, he cannot prevail on his ineffective-assistance claim.

Appellant’s fourth proposition of law is overruled.

III. Voir Dire Issues

A. Denial of Voir Dire

The trial court excused prospective jurors Shipka, who had an upcoming vacation, and Wack, who felt unable to serve due to a recent negative experience with the criminal-justice system. In his fifth proposition, appellant complains that the trial court gave the defense no chance to voir dire these jurors before excusing them. However, appellant did not request an opportunity to voir dire either one (though he did object to excusing Shipka). Thus, appellant has waived this issue, and his fifth proposition is overruled.

We further note that a juror’s discharge “on grounds of personal excuse” is a matter “between the court and the jurors, and with which the parties can not, of right, interfere.” Bond v. State (1872), 23 Ohio St. 349, 355, 1872 WL 78. A party has no right to have any particular juror on the panel. His right is to an impartial jury, and a juror’s erroneous excusal does not compromise the jury’s impartiality. See, e.g., United States v. Cornell (C.C.D.R.I.1820), 25 F.Cas. 650, 656; State v. Mendoza (1999), 227 Wis.2d 838, 863, 596 N.W.2d 736, 748 (citing cases); Jones v. State (Tex.Crim.App.1998), 982 S.W.2d 386, 392 (citing cases); People v. Lefebre (Colo.2000), 5 P.3d 295.

Excusing prospective jurors without voir dire neither caused any disqualified or biased juror to be seated nor impaired counsel’s ability to exercise peremptories. Thus, it did not deny appellant the essential benefits of voir dire. See Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, 5 O.O. 179, 200 N.E. 762, paragraph one of the syllabus; State v. Anderson (1972), 30 Ohio St.2d 66, 71-72, 59 O.O.2d 85, 89, 282 N.E.2d 568, 571-572; State v. Garner (1995), 74 Ohio St.3d 49, 64, 656 N.E.2d 623, 637 (explaining the purposes of voir dire). It follows that, if the court erred in excusing the jurors without voir dire, the error would be harmless.

B. Denial of Challenges for Cause

Prospective juror Council had a cousin who was killed by an armed robber in 1993. He was upset that the killer was never caught.

Council initially said that he could separate the instant case from that of his cousin. Under defense examination, Council indicated that his cousin’s death “probably would” affect him in hearing the case, and he agreed that if he could not hear the case fairly he could not be “a fair juror.” He also told defense counsel that he had no doubt about his fairness and did not think that his cousin’s death would interfere with his being fair in this case. Council further indicated that he could consider a penalty other than death in a case of murder during armed robbery, that a person’s “upbringing” and “personality” might be relevant, and that he was not predisposed toward one penalty over another.

A prospective juror is not automatically disqualified by the fact that a close relative has been the victim of a crime similar to the crime on trial. See State v. Allen (1995), 73 Ohio St.3d 626, 628-629, 653 N.E.2d 675, 680-681; State v. Allard (1996), 75 Ohio St.3d 482, 493-494, 663 N.E .2d 1277, 1288; and see, generally, Crim.R. 24(B) (listing grounds for challenge for cause). Instead, the trial judge must determine, on a case-by-case basis, whether the juror “is possessed of a state of mind evincing enmity or bias.” Crim.R. 24(B)(9).

Despite some hesitation, Council ultimately made it clear that his feelings about his cousin’s killing would not affect his ability to be impartial. The trial court’s ruling on a challenge for cause will not be overturned on appeal if the record supports it. See State v. Wilson (1972), 29 Ohio St.2d 203, 211, 58 O.O.2d 409, 414, 280 N.E.2d 915, 920. “[T]he trial judge saw and heard [Council] and could legitimately validate [his] statements.” Allen, supra, 73 Ohio St.3d at 629, 653 N.E.2d at 681.

A juror whose views on capital punishment are such that they would prevent or substantially impair his ability to consider mitigating factors, as the law requires, is disqualified. See Morgan v. Illinois (1992), 504 U.S. 719, 729, 112 S.Ct. 2222, 2229-2230, 119 L.Ed.2d 492, 502-503; State v. Williams (1997), 79 Ohio St.3d 1, 5-6, 679 N.E.2d 646, 653; State v. Rogers (1985), 17 Ohio St.3d 174, 178-179, 17 OBR 414, 417-418, 478 N.E.2d 984, 989-990. Appellant claims that the trial court improperly overruled his challenges for cause of three such jurors.

Venireman Roe said that he “would be able to” impose a sentence other than death, although he “[couldn’t] imagine any [such circumstances] right now.” Roe stated that he “would start with death and go from there. * * * [I]f conditions are presented to me that make me think that [the sentence] should not be the maximum, then I would consider that.” Roe gave examples: if the victim’s family asked the jury to spare the defendant’s life, or the defendant suffered from a “psychological imbalance.” Failing that, Roe would vote for a sentence of death “or at least life without parole.” Once Roe was told that the law required the jury to consider mitigating factors, he agreed that he could fully and fairly consider all the evidence.

Appellant challenged Roe for cause; the challenge was overruled, and appellant struck Roe with a peremptory challenge.

Venireman Hector stated at the outset that he would not automatically vote to recommend death after a finding of guilty but would decide whether death was appropriate only after listening to the mitigation presented and deciding what weight to give it. While he said that he would give little weight to certain mitigating factors, he never refused to consider them, and he specifically mentioned others that he would consider.

Under defense examination, Hector seemed to contradict himself, stating that “if the intent was to kill, I would have to ask for death.” Hector then clarified these statements: they referred to a situation where there were no mitigating factors. The trial judge found that Hector had misunderstood defense counsel to be talking about a case with no mitigating circumstances. Thus, the judge overruled the challenge, and Hector sat on the jury.

Venireman Arnold was seated as an alternate. She stated that “I think I want to listen to everything and look at all sides before I would make a decision.” Specifically, she thought “I would want to listen to the mitigation evidence * * * [because] I don’t think you get the whole picture unless you do.” Only once did she waver from this position, saying, “There is a possibility I would not.” However, on further inquiry, it turned out that she had not understood defense counsel’s questions.

The record affords no basis to overturn the trial judge’s rulings on these jurors. As soon as each juror understood that he or she would have a legal duty to consider mitigation, each one said he or she could do so. The trial judge could reasonably find that these jurors’ ability to weigh mitigating circumstances would not be substantially impaired. We note that the judge was sensitive to this issue and granted other Morgan challenges by the defense when called for. We do not think she abused her discretion in denying the ones at issue here.

Finally, appellant argues that the voir dire of prospective juror Ellsesser revealed bias against the defendant. Ellsesser is a police officer. During individual voir dire, Ellsesser was asked if he would be “slanted” because of his police background. He replied: “I will hear the case as the facts are presented to me. I can’t change who I am. * * * I don’t feel it would be slanted. Maybe somebody else would think it would be.” He added that “honor” would require him to follow the judge’s instructions.

Later, on general voir dire, defense counsel asked him: “As somebody who is involved in law enforcement, what do you think about serving as a juror on an aggravated murder case?” He said, “I don’t know. If I was you guys, I wouldn't want me here, but that’s your decision.” (Emphasis added.)

Appellant urged the trial court, as he now urges us, to read Ellsesser’s statement, “If I was you guys, I wouldn’t want me here,” as an admission of bias. However, this statement simply is not the clear-cut confession of bias that appellant claims it is. Ellsesser’s statement can easily be understood as a mere acknowledgement of what everyone already knows: defendants generally do not want police officers on the jury. Indeed, Ellsesser had said precisely that during his individual voir dire; that earlier statement may well have influenced the trial court’s interpretation of the later one.

The context of the statement also militates against appellant’s reading. The question Ellsesser was answering did not deal with bias, and he had already indicated that he did not feel he would be biased. Moreover, he immediately followed this statement with the comment “The judge will give you instructions. You follow what the law dictates you are to do.” On this record, interpreting the words “I wouldn’t want me here” as an eleventh-hour admission of bias is not warranted.

Thus, the record supports the trial court’s finding that Ellsesser was not biased.

The record supports each of the questioned rulings on challenges for cause. Hence, appellant’s fifth proposition of law is overruled.

C. Batson Issue

In his sixth proposition, appellant claims that the prosecutor exercised two peremptories in a racially discriminatory fashion, ie., that he challenged prospective jurors Jacobs and Watkins because they were black. The Equal Protection Clause of the Fourteenth Amendment strictly prohibits a state actor from engaging in racial discrimination in exercising peremptory challenges. Such discrimination is grounds to reverse a conviction returned by a jury tainted with such discrimination. See Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; State v. White (1999), 85 Ohio St.3d 433, 436-438, 709 N.E.2d 140, 147-149.

A court adjudicates a Batson claim in three steps. In step one, the opponent of the peremptory challenge at issue must make a prima facie case that the proponent was engaging in racial discrimination. In step two, the proponent must come forward with a race-neutral explanation for the strike. In step three, the trial court must decide, on the basis of all the circumstances, whether the opponent has proved racial discrimination. Purkett v. Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839; State v. White, 85 Ohio St.3d at 436, 709 N.E.2d at 147.

In this case, the prosecutors voluntarily came forward with an explanation why they challenged Watkins and Jacobs; hence, the trial court did not, and we need not, determine whether the defense made the requisite prima facie case. See Hernandez v. New York (1991), 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 405; State v. Hernandez (1992), 63 Ohio St.3d 577, 583, 589 N.E.2d 1310, 1314. Our analysis therefore proceeds to step two, in which we consider the state’s proffered reasons for the challenges at issue.

The prosecutor claimed that he struck Jacobs because “she said if she perceived any discrepancy [in the evidence], she could not find someone guilty,” and also because “in the absence of mitigation, she claims she would vote for life without parole. * * * She absolutely cannot, in my opinion, follow the law when it comes to the death penalty.” These are racially neutral reasons for striking Jacobs.

The state struck Watkins because “[h]e has a feeling that the system here is not fair” and “[h]e felt fine with the O.J. [Simpson] verdict, and anybody that feels fine with the O.J. verdict doesn’t sit on my juries.” The state argued that approval of the “O.J. verdict” indicated “a predisposition [to believe] that the police are going to plant or manufacture evidence.”

Appellant argues that this explanation is not race-neutral because “the ‘O.J. trial’ was itself a racially charged trial.” However, Watkins was challenged on the basis of an individual rather than a racial characteristic: an opinion he allegedly held. Compare Heno v. Sprint/United Mgt. Co. (C.A.10, 2000), 208 F.3d 847, 855-856 (juror’s favorable opinion on affirmative action was race-neutral explanation for strike). Moreover, “disparate impact” analysis does not apply to step two of a Batson challenge. Hernandez v. New York, 500 U.S. at 362, 111 S.Ct. at 1867, 114 L.Ed.2d at 406. Clearly, the proffered reason for challenging Watkins was race-neutral. That conclusion moves us to step three.

Appellant argues that the state’s reason for striking Jacobs — that she could not vote guilty if she perceived any discrepancies, even minor ones, in the evidence— is not supported by the record. However, the prosecutor had asked Jacobs, “You wouldn’t want any discrepancies at all, basically?” and Jacobs said, “Yeah.”

Appellant also argues that, if the prosecutor’s concern was indeed sincere, he would also have struck prospective juror Council, who also thought minor discrepancies were important in determining credibility. A facially neutral reason for a strike may indicate discrimination, if the state uses it only to eliminate jurors of a particular cognizable group. Coulter v. Gilmore (C.A.7, 1998), 155 F.3d 912, 921.

Appellant’s argument is not persuasive. Council did not say that he “wouldn’t want any discrepancies at all,” as Jacobs did. Council also admitted that witnesses might have different “perspective[s]” and that discrepancies did not necessarily indicate lying.

The prosecutor also said that he struck Jacobs because she would not vote for the death penalty. Jacobs did seem to say that she would vote for life without parole even if the mitigating factors deserved no weight. However, appellant argues that this justification is disingenuous, because when the question was clarified, Jacobs said that she could sign a death recommendation. Thus, the state’s claim that Jacobs would never vote for death does seem overstated.

Yet, a valid explanation for a peremptory challenge need not reach the level of a challenge for cause. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Jacobs’s answers certainly indicated some degree of opposition to capital punishment. While that is insufficient to permit a challenge for cause (see, generally, Adams v. Texas [1980], 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589; Wainwright v. Witt [1985], 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841), it is highly likely that such an attitude made her undesirable to the prosecution. See State v. Esparza (1988), 39 Ohio St.3d 8, 13-14, 529 N.E.2d 192, 198 (state may use peremptories to eliminate jurors based on opposition to death penalty). Thus, the trial court was entitled to conclude that the prosecutor’s stated reason for striking Jacobs was sincere.

Appellant offered no evidence of discriminatory intent. The burden of proving intentional racial discrimination was his. Moreover, “[t]he trial court’s finding is entitled to deference, since it turns largely ‘on evaluation of credibility.’ ” State v. White, 85 Ohio St.3d at 437, 709 N.E.2d at 148, quoting Batson, 476 U.S. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. We think the record supports the trial judge’s finding with respect to Jacobs.

Appellant argues that the state’s reason for striking Watkins — his view on the “O.J. verdict” — was insincere, because the state never asked Watkins any questions about the “O.J. verdict.” However, appellant forgets that, before voir dire, the venire members filled out jury questionnaires. Unfortunately, the questionnaires are not in the record, but the voir dire transcript does indicate that they included a question about attitudes toward the “O.J. verdict.” Because of this, the prosecutor’s failure to discuss the subject further during Watkins’s voir dire cannot support a claim of bias.

The racially disparate impact of a justification that is race-neutral on its face can be considered in Batson step three as evidence that the claimed justification was pretextual. Hernandez v. New York, 500 U.S. at 363, 111 S.Ct. at 1868, 114 L.Ed.2d at 408; Heno, supra, 208 F.3d at 856, fn. 3.

Appellant appears to suggest that exercising peremptory challenges based on a juror’s attitude toward the “O.J. verdict” is a practice having a disparate impact on black jurors. We reject this suggestion for two reasons. First, to find disparate impact, we would have to assume that jurors’ opinions about the “O.J. verdict” were likely to vary according to race. The record contains no evidence to support such an assumption.

Second, disparate impact by itself does not violate Batson. Batson proscribes purposeful discrimination; disparate impact is merely evidence from which discriminatory purpose may be inferred. However, the prosecutor’s race-neutral explanation for the strike was also evidence, and the trial judge was free to believe that evidence instead.

Here, the prosecutor stated his belief that a person with a favorable view of the “O.J. verdict” would be predisposed to suspect police of dishonesty. The trial court evidently accepted this explanation. Since appellant cites nothing in the record to suggest that the explanation was less than sincere, we have no basis to disturb the trial court’s determination of credibility.

In overruling appellant’s Batson claims, the trial court implicitly found that he had failed to show intentional discrimination by the state in exercising its peremptory challenges. Our review of the record reveals nothing that would justify us in disturbing that finding. Accordingly, we overrule appellant’s sixth proposition of law.

IV. Alternate Jurors in Deliberations

In both phases of trial, the trial court sent the alternate jurors into the jury room to listen to the jury’s deliberations. However, the court strictly commanded the alternates not “to participate in the deliberations in any fashion,” even by “gestures” or “facial movements.”

It is generally regarded as erroneous to permit alternates to sit in on jury deliberations. See, e.g., State v. Rocco (App.1978), 119 Ariz. 27, 28-29, 579 P.2d 65, 66-67; State v. Boulies (Colo.1984), 690 P.2d 1253; State v. Murray (2000), 254 Conn. 472, 474-477, 757 A.2d 578, 580-581; Berry v. State (Fla.App.1974), 298 So.2d 491; Johnson v. State (1975), 235 Ga. 486, 493, 220 S.E.2d 448, 454; Commonwealth v. Smith (1988), 403 Mass. 489, 493-495, 531 N.E.2d 556, 558-561; State v. Crandall (Minn.App.1990), 452 N.W.2d 708, 710-711; Luster v. State (Miss.1987), 515 So.2d 1177, 1180; State v. Scrivner (Mo.App.1984), 676 S.W.2d 12, 14; State Hwy. Comm. v. Dunks (1975), 166 Mont. 239, 531 P.2d 1316; State v. Bindyke (1975), 288 N.C. 608, 623, 220 S.E.2d 521, 531; State v. Coulter (App.1982), 98 N.M. 768, 652 P.2d 1219; Yancey v. State (Okla.Crim.App.1982), 640 P.2d 970; Commonwealth v. Krick (1949), 164 Pa.Super. 516, 520-521, 67 A.2d 746, 749; State v. Grovenstein (1999), 335 S.C. 347, 517 S.E.2d 216; Patten v. State (1968), 221 Tenn. 337, 344, 426 S.W.2d 503, 506-507; State v. Lightner (1999), 205 W.Va. 657, 520 S.E.2d 654; State v. Cuzick (1975), 85 Wash.2d 146, 530 P.2d 288. Contra Wilcoxen v. State (Ind.1993), 619 N.E.2d 574 (alternate jurors may attend deliberations as long as they are instructed not to participate); see, also, Potter v. Perini (C.A.6, 1976), 545 F.2d 1048 (finding error but no prejudice and no constitutional violation); People v. Valles (1979), 24 Cal.3d 121, 154 Cal.Rptr. 543, 593 P.2d 240 (alternate may remain in jury room if defendant so stipulates); State v. Grant (1986), 221 Mont. 122, 128-130, 717 P.2d 562 (distinguishing Dunks). See, generally, Koch v. Rist (2000), 89 Ohio St.3d 250, 730 N.E.2d 963.

In an ordinary criminal case, Crim.R. 24(F) requires that any alternate juror not substituted for a regular juror be discharged when the jury retires. However, in State v. Hutton (1990), 53 Ohio St.3d 36, 46-48, 559 N.E.2d 432, 444-445, and paragraph three of the syllabus, we held that the discharge requirement does not apply in a capital case under certain circumstances. In Hutton, we held it permissible for a court to retain alternates after the jury retired in the guilt phase and to substitute one of them for a regular juror who became incapacitated after the guilty verdict but before the jury retired to deliberate in the penalty phase.

On the other hand, nothing in Hutton authorizes alternates who have not replaced regular jurors to be present during deliberations. An alternate is part of the “trial jury” if “properly substituted” for a regular juror, Hutton, paragraph two of the syllabus, but here the alternates were not substituted. Hence, at least as a technical matter, they were not part of the jury. See Koch, 89 Ohio St.3d at 251-252, 730 N.E.2d at 965 (alternate was a “non-juror”). But, compare, State v. Hessler (2000), 90 Ohio St.3d 108, 123, 734 N.E.2d 1237, 1252 (alternate present during penalty deliberations was part of the jury for purposes of aliunde rule); State v. Reiner (2000), 89 Ohio St.3d 342, 351, 731 N.E.2d 662, 672. It follows that the alternates should not have been present in the deliberations.

However, no defense objection appears in the trial record to the presence of the alternate jurors. The waiver rule requires that a party make a contemporaneous objection to alleged trial error in order to preserve that error for appellate review. The rule is of long standing, and it goes to the heart of an adversary system of justice.

Even constitutional rights “may be lost as finally as any others by a failure to assert them at the proper time.” State v. Childs (1968), 14 Ohio St.2d 56, 62, 43 O.O.2d 119, 123, 236 N.E.2d 545, 549. Accord State v. Williams (1977), 51 Ohio St.2d 112, 116-118, 5 O.O.3d 98, 100-101, 364 N.E.2d 1364, 1367-1368. The waiver rule operates even in capital cases, for “capital defendants are not entitled to special treatment regarding evidentiary or procedural rules.” State v. Greer (1988), 39 Ohio St.3d 236, 244, 530 N.E.2d 382, 394; see, also, State v. Spisak (1988), 36 Ohio St.3d 80, 83, 521 N.E.2d 800, 803; State v. Campbell (1994), 69 Ohio St.3d 38, 40-41, 630 N.E.2d 339, 344.

The Rules of Criminal Procedure make but one exception to the contemporaneous-objection requirement: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B).

Under this rule, we may take notice of waived errors only if they can be characterized as “plain errors.” As we have repeatedly emphasized, the plain error test is a strict one: “[A]n alleged error ‘does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise.’ ” State v. Campbell, 69 Ohio St.3d at 41, 630 N.E.2d at 345, quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. We have warned that the plain error rule is not to be invoked lightly. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Long at paragraph three of the syllabus; see, also, Campbell, 69 Ohio St.3d at 43, 630 N.E.2d at 346.

It is clear that the error alleged here is subject to the waiver and plain error rules. In United States v. Olano (1993), 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508, the United States Supreme Court held that while it was error to let alternate jurors attend deliberations, the error was not reversible under the federal “plain error” standard because it was not shown to have affected a substantial right. The court explained that error in such a case will not be presumed; under Fed.R.Civ.Proe. 52(b), the party complaining of the error has the burden of showing that the alternates disobeyed the court’s instructions by participating in the deliberations, either verbally or through body language, or that their presence chilled the deliberative process. Since the respondents made no such showing, there was no basis for finding that the error affected respondents’ substantial rights, and hence no basis for reversal as plain error. Id. at 739-741, 113 S.Ct. at 1780-1781, 123 L.Ed.2d at 522-524. Accord State v. Lightner, 205 W.Va. at 661-664, 520 S.E.2d at 658-661 (applying plain error test). See, also, Johnson v. Duckworth (C.A.7, 1981), 650 F.2d 122, 125-126 (explaining why alternates are unlikely to prejudice deliberations); Johnson v. State (1977), 267 Ind. 256, 259, 369 N.E.2d 623, 625 (alternate “is in every respect a juror”); State v. Crandall, 452 N.W.2d at 711 (alternates are not strangers to the jury).

Moreover, as the Supreme Court of Appeals of West Virginia noted in applying the waiver rule to a similar case: “The first time [the defendant] uttered any complaint was after the jury was discharged. At that time, the opportunity to correct the error was lost to the trial court.” Lightner, 205 W.Va. at 664, 520 S.E.2d at 661.

We are aware that, in some states, a defendant in such a case loses the right to object on appeal only by affirmative waiver. That is, failure to object to the presence of an alternate is no bar to claiming error unless the defendant has knowingly, voluntarily, and intelligently agreed to the alternate’s presence during deliberations. See, e.g., Boulies, 690 P.2d at 1257, fn. 7; Berry, 298 So.2d 491; Commonwealth v. Jones (1989), 405 Mass. 661, 542 N.E.2d 1040 (defendant does not lose right to claim error even if defense counsel agreed to alternate’s presence); Bindyke, 288 N.C. at 623-630, 220 S.E.2d at 531-535; Yancey, 640 P.2d 970; Cuzick, 85 Wash.2d 146, 530 P.2d 288.

However, as explained above, we have consistently enforced Ohio’s waiver and plain error rules. Appellant would have us.make an ad hoc exception to those rules in cases where an alternate juror has been erroneously admitted into the jury’s deliberations. We think Olano gives highly persuasive reasons why no such exception is necessary.

Applying the test for plain error, we cannot find on this record that, “but for the [trial court’s] error, the outcome of the trial clearly would have been otherwise.” (Emphasis added.) Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. We therefore hold that plain error is absent here. Thus, appellant waived the issue of the alternate jurors’ presence in deliberations by failing to raise it at trial. Appellant’s seventh proposition therefore must be, and is, overruled.

V. Photo Array

‘When a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect’s guilt and the identification was unreliable under all the circumstances.” (Emphasis added.) State v. Waddy (1992), 63 Ohio St.3d 424, 438, 588 N.E.2d 819, 830. In his third proposition of law, appellant claims that police used an unduly suggestive photographic lineup to get Condrea Webber to identify appellant as her brother’s killer. Hence, he contends, both Webber’s in-court and out-of-court identifications of appellant should have been suppressed.

On May 11, 1997, police showed Condrea Webber an array comprised of six full-face photographs of black males. According to Webber’s uncontradicted suppression-hearing testimony, she “immediately” picked out appellant’s photo as that of her brother’s killer. She was “[o]ne hundred percent sure” of her identification. The police in no way indicated which one she should choose.

After a hearing, the trial judge overruled appellant’s motion to suppress identification, remarking, “Quite frankly, there’s nothing suggestive here.”

Appellant contends that the other photos in the array were so unlike his that the array was suggestive. However, we affirm the trial court’s contrary finding. “A defendant in a lineup need not be surrounded by people nearly identical in appearance.” State v. Davis (1996), 76 Ohio St.3d 107, 112, 666 N.E.2d 1099, 1105. Furthermore, the other five photos in the array are all reasonably close to appellant’s photo in appearance, showing no significant variations in hair length, complexion, age, features, or dress.

Appellant claims that, while several of the photos depicted men with facial hair, he had none. However, that is incorrect. Appellant’s photo in the array shows a short, scraggly chin beard. Four of the other five subjects also had short beards. Three of the other four bearded subjects did have mustaches, unlike appellant; however, those three had only thin, inconspicuous mustaches.

Appellant’s photo does not stand out in any way. Hence, the array was not suggestive, and appellant’s third proposition of law lacks merit.

VI. Prosecutorial Misconduct

Appellant’s eighth and sixteenth propositions of law charge prosecutorial misconduct in both phases of trial. Although the prosecution did engage in some improper argument, appellant’s claims are waived because he did not object at trial.

In his eighth proposition, appellant makes only one claim of guilt-phase misconduct. In closing, the prosecutor argued: “While [Brooks’s mother] was spending her Mother’s Day driving to Columbus to identify the body of her son, [appellant] is taking his girlfriend and mother out for dinner, not a care in the world.” The defense objected on the ground that “[t]hat’s not in evidence.”

This isolated statement, while improper, was not outcome-determinative in this case, given that appellant shot Brooks in front of an eyewitness and then confessed to doing it. Appellant’s contention is without merit.

The rest of appellant’s eighth proposition deals with alleged penalty-phase misconduct, as does his sixteenth proposition. Again, all these issues were waived at trial, and we find that none of the errors alleged amounted to plain error. Appellant’s eighth and sixteenth propositions are therefore overruled.

VII. Instructions

A. Guilt Phase

In his ninth proposition, appellant alleges that the trial court instructed the jury improperly in the guilt phase.

Appellant concedes that he did not object at trial to any of the allegedly erroneous instructions. Hence, unless appellant can demonstrate plain error, each objection is waived. Appellant contends that because the state’s evidence was weak, the outcome of this case would clearly have been otherwise had these alleged errors not occurred. State v. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. We cannot agree. The evidence here was more than sufficient to allow the jury to find appellant guilty beyond a reasonable doubt. (See discussion of appellant’s eleventh proposition, infra.) Thus, we cannot say that the outcome would dearly have been otherwise but for the alleged errors.

B. Penalty Phase

In propositions twelve through fourteen, appellant claims error in the penalty-phase instructions. However, appellant actually requested each of the instructions that he now contends were erroneous. In fact, the trial court gave appellant’s proposed instructions almost verbatim.

Thus, appellant was “actively responsible,” State v. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196, 197, for what he now claims to be error. Under the settled principle of invited error, a litigant may not “take advantage of an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph one of the syllabus, citing Lester v. Leuck (1943), 142 Ohio St. 91, 26 O.O. 280, 50 N.E.2d 145, paragraph one of the syllabus. See, also, State v. Seiber (1990), 56 Ohio St.3d 4, 17, 564 N.E.2d 408, 422. We therefore overrule appellant’s twelfth, thirteenth, and fourteenth propositions of law.

Although we overrule these propositions on the basis of the invited-error doctrine, we note that appellant’s contentions lack merit in any event. Because appellant attacks the instructions as not only incorrect, but egregiously so, a brief review of his contentions is in order to dispel any concern that he was sentenced on the basis of egregiously incorrect instructions. See, generally, State v. Campbell, 69 Ohio St.3d at 41, 630 N.E.2d at 344-345, fn. 2.

Appellant’s twelfth proposition identifies four alleged errors in the penalty-phase instructions. The first was when the trial court instructed that “an aggravating circumstance is something that makes the defendant’s crime more serious and which, therefore, makes the death penalty more appropriate for the defendant than a sentence of life imprisonment.”

Appellant contends that this instruction creates a presumption that death is appropriate simply because an aggravating circumstance has been proven. It does not: it merely explains the function of an aggravating circumstance. Other instructions clearly explained to the jury that it must weigh the aggravating circumstance against the mitigating factors and recommend life unless persuaded beyond a reasonable doubt that the former outweighed the latter.

The trial court also instructed: “[Mitigating factors are the opposite of aggravating circumstances.” According to appellant, this implied that mitigating circumstances are circumstances that reduce the defendant’s guilt in the felony murder.

However, the judge’s very next words were: “That is, a mitigating factor is a factor that, in your individual judgment, makes a life sentence more appropriate for Ulysses Murphy than a sentence of death.” Then the judge specifically divorced the concept of guilt from that of mitigation: “In order to decide that something is a mitigating factor which would render a life sentence more appropriate, you do not have to believe that it excuses or justifies the crime itself.” Compare Eddings v. Oklahoma (1982), 455 U.S. 104, 113, 102 S.Ct. 869, 876, 71 L.Ed.2d 1, 10. The trial court also fully explained the concept of mitigating factors.

Finally, appellant contends that the trial court erroneously instructed that “a life sentence could be returned only if the mitigating factors outweighed the aggravating circumstances.” However, the instruction appellant cites said nothing of the kind. What it actually said was, “You might decide that the mitigating factors, taken together, outweigh the one aggravating circumstance, taken alone. In that event, your vote as an individual juror must be for a penalty of life imprisonment.”

This was part of a comprehensive instruction outlining “four possibilities.” In his brief, appellant chooses to quote only part of the trial court’s instruction. The court explained that the jury “might decide that the one aggravating circumstance, taken alone, outweighs the mitigating factors, taken together”; or “that the mitigating factors, taken together, outweigh the one aggravating circumstance, taken alone”; or “that the weight of the one aggravating circumstance, taken alone, is equal to the weight of all the mitigating factors taken together”; or that the jury “may not be able to decide which side outweighs the other.”

Thus, the instruction at issue did say that the jury must recommend life if mitigation outweighed aggravation — which, of course, is true. See R.C. 2929.03(D)(2). However, it did not even remotely suggest that the jury could recommend life only if mitigation outweighed aggravation.

To the contrary, the full instruction made clear that a juror could vote for death only if he or she found that aggravation outweighed mitigation. In each of the other three situations outlined by the instruction — where mitigation outweighed aggravation, where the two were in equipoise, and where the jurors could not decide which had greater weight — the trial court instructed the jury in plainest English that “[y]our vote as an individual juror must be for a penalty of life imprisonment.’' (Emphasis added.)

In his thirteenth and fourteenth propositions of law, appellant contends that the trial court gave instructions inconsistent with State v. Brooks (1996), 75 Ohio St.3d 148, 159-160, 661 N.E.2d 1030, 1040-1041, which holds that a jury need not unanimously reject the death penalty before it may consider a life sentence.

In his thirteenth proposition of law, appellant objects to the following instruction: “Your decision will depend on whether the prosecution proves to each and every one of you, beyond a reasonable doubt, that the death penalty should be imposed. If the prosecution succeeds in doing this, then you, the jury, must return a verdict