Summary:

Gregory Wahoff gave Beuke a ride May 14, 1983, and was forced at gunpoint to drive to rural Hamilton County. Wahoff tried to run but was shot in the back and face and left for dead. He was paralyzed for life, and died four years ago.

Robert Craig's body was found June 1, 1983, in a roadside ditch in nearby Clermont County. He had been shot twice in the head and once in the chest with the same .38 revolver used to shoot Wahoff and later Graham.

Two days later on June 3, 1983, Bruce Graham saw Beuke walking with a gas can and gave him a ride. Beuke forced Graham to drive to a rural Indiana area and shot but didn't kill him. Both Wahoff and Graham tesified against Beuke, and the .38 caliber revolver used in all three shootings was recovered from the vehicle used by Beuke.

The case caused extensive publicity iny the media, who identified Beuke as the "mad hitchhiker." Beuke later said he committed the crimes because he needed $2,500 to hire an attorney to defend him on a drug trafficking charge and needed a stolen car to rob a bank for the money.

Citations:

State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274 (Ohio 1988). (Direct Appeal)
State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (Ohio App. 1998). (Postconviction Relief)
Beuke v. Houk, 537 F.3d 618 (6th Cir. 2008). (Habeas)

Final/Special Meal:

Normal prison dinner of chicken a la king, mashed potatoes and lima beans.

Final Words:

Before the chemicals flowed into his bloodstream, he spent 17 minutes reciting the Rosary. He also recited an early Christian creed and the Lord's Prayer as tears rolled down his left cheek. Witnesses were shaking their heads before his repetitive statement was over, clearly impatient it went on so long.

ClarkProsecutor.org

Ohio Department of Rehabilitation and Correction

Inmate#: OSP #A176-128
Inmate: Michael Francis Beuke
DOB: February 14, 1962
County of Conviction: Hamilton County
Date of Offense: Between May 14, 1983 and June 3, 1983
Case Number: B832526
Date of Sentencing: October 25, 1983
Presiding Judge: Norbert A. Nadel
Prosecuting Attorney: Arthur M. Ney Jr.
Institution: Ohio State Penetentiary
Convictions: Aggravated Murder (Death), Attempted Aggravated Murder (7-25 years), Kidnapping (7-25 years), Aggravated Robbery (7-25 years), Count 4 Carrying Concealed Weapon (3-10 years).

Homicidal hitchhiker faces execution

By Lisa Cornwell - NewsCincinnati.com

Associated Press • May 12, 2010

CINCINNATI — Ohio's "homicidal hitchhiker" faces execution Thursday for the killing 27 years ago of a Cincinnati man who often offered rides to hitchhikers and whose last good deed cost him his life.

Michael Beuke, 48, is scheduled to die by lethal injection for the 1983 aggravated murder of Robert Craig, 27, of Cincinnati. He was convicted Oct. 5, 1983, for Craig's slaying and for attempting to kill another Ohio motorist and one from Indiana in the three-week shooting spree along Cincinnati-area roads. Beuke pleaded not guilty but has since admitted his crimes, expressed remorse and is seeking clemency from Gov. Ted Strickland. He was transferred to the Southern Ohio Correctional Facility in Lucasville on Wednesday morning to a cell about 15 steps from the death chamber.

Beuke opted against an elaborate special meal, as the last meal is called in Ohio, and planned to eat the normal prison dinner of chicken a la king, mashed potatoes and lima beans.

The 6th U.S. Circuit Court of Appeals on Wednesday was weighing Beuke's claim that prescription medicine he takes could interfere with a drug used in Ohio's backup execution method.

Beuke has said he committed the crimes because he needed $2,500 to hire an attorney to defend him on a drug trafficking charge and needed a stolen car to rob a bank for the money, said Stephen Maher, an assistant attorney general for Ohio. Craig's body was found June 1, 1983, in a roadside ditch in nearby Clermont County. He had been shot twice in the head and once in the chest with a .38-caliber revolver — the same gun used to shoot Gregory Wahoff and Bruce Graham.

"It's been awful," said Craig's widow, Susan Craig, who was expecting their third child when her husband was killed. "I lost my best friend, and my youngest son never even had a chance to know his father."

Wahoff, 28, of Cincinnati, gave Beuke a ride the previous May 14 and was forced at gunpoint to drive to rural Hamilton County. Wahoff tried to run but was shot in the back and face and left for dead. He was paralyzed from the shooting and spent the rest of his life in a wheelchair. He died four years ago. Wahoff's widow is angry that Beuke has avoided execution so many years. "Robert Craig was not given one day, and Greg wasn't given clemency from his wheelchair," said Joann Wahoff of Bright, Ind.

Graham, 34, of West Harrison, Ind., saw Beuke walking with a gas can and gave him a ride June 3, 1983. Beuke forced Graham to drive to a rural Indiana area and shot him, with a bullet grazing Graham's forehead and another striking his shoulder before he safely reached a nearby farmhouse. Graham, now of Rising Sun, Ind., met with Beuke and has forgiven him. He asked the Ohio Parole Board to spare his life, writing that he believes Beuke "has reformed his life and his ways."

Beuke's clemency request said he accepts responsibility for his crimes and prays "that God will ease the pain I have caused my victims." Beuke's attorneys and a retired Orthodox priest who visits Beuke say he is a "changed man" involved in religious and community service programs and has had a positive impact on other inmates. "He is probably the most reformed prisoner I have met and certainly the most remorseful," said the Rev. Richard Rosenbaum, of Bloomfield Hills, Mich.

Craig and Wahoff say remorse cannot change what Beuke did and he deserves to die. Authorities were tipped to Beuke's identity by a co-worker who said Beuke told him he was the man wanted in the hitchhiker shootings. Authorities found a cup from Wahoff's car and other evidence in Beuke's vehicle. He was carrying the gun when he was arrested.

Beuke was indicted July 5, 1983, on one count of aggravated murder, two counts of attempted aggravated murder, and other counts of aggravated robbery, kidnapping and carrying a concealed weapon. He didn't testify or present direct evidence in his defense. Unsuccessful appeals included a claim that brain damage contributed to Beuke's violent behavior, and the Ohio Parole board said one reason it recommended against clemency was that arguments were "insufficient" to demonstrate that Beuke suffers such damage. Federal public defenders delivered a letter Monday to Strickland saying recent brain scans and expert conclusions show Beuke suffers from moderate to severe brain damage.

Michael Beuke Executed For Ohio Hitchhiker Murder

By Ian Ritz - The Epoch Times

May 13, 2010

Michael Beuke was executed by the state of Ohio Thursday for the murder of a Cincinnati hitchhiker who was found dead in 1983. No complications arose during the execution that followed Beuke's long stay on death row.

Beuke was tied to a series of Cincinnati shootings in 1983, including one murder that gripped the people of Ohio with fear for weeks. Beuke killed one hitchhiker, which led to his conviction and was charged with shooting two other people from Indiana who were in Ohio. After being on death row for more than 25 years Beuke was finally executed by lethal injection.

“The execution was carried out in accordance of the law for the state of Ohio. Bueke recited the Catholic rosary for 17 minutes before his death. The execution went through without any complications,” said Southern Ohio Correctional Facility representative Julie Walburn to the Epoch Times. Michael Beuke was pronounced dead at 10:53 a.m. He was 48 years old. Beuke had failed multiple attempts to appeal to the Ohio Supreme Court before his execution. His final failed appeal was made about 90 minutes before his death, reported the Associated Press.

Robert Craig was the hitchhiker who was killed. He was 27. Beuke was convicted of the murder in 1993. He was the 38th person to be killed by the state of Ohio since it resumed carrying out the death penalty in 1999. Beuke cried for hours before being taken into the execution room where Craig’s widow watched his death through a window. Beuke was dubbed the “homicidal hitchhiker” by the Ohio press in the 1980s. It was said that he had completed a spiritual conversion while in prison. He prayed for his victims before state officials administered his lethal injection.

Ohio executes hitchhiker who shot 3 drivers in '83

By Julie Carr - Associated Press

May 13, 2010

LUCASVILLE, Ohio — Ohio executed a hitchhiker Thursday who admitted to killing one motorist who gave him a ride and shooting two others during a three-week string of shootings that terrorized the Cincinnati area in 1983. Michael Beuke, 48, died by lethal injection at 10:53 a.m. EDT at the Southern Ohio Correctional Facility in Lucasville, about 90 minutes after the Ohio Supreme Court turned down his final appeal. While on the gurney, Beuke recited the Roman Catholic rosary for 17 minutes before he died, choking back tears as he repeatedly said the Hail Mary. He also expressed his sorrow to the families of his three victims.

Beuke, dubbed by the media as the "homicidal hitchhiker," spend a quarter century on death row, where he said he had a spiritual conversion. He expressed remorse for his crimes and said in an unsuccessful request for clemency that he accepted responsibility and prayed "that God will ease the pain I have caused my victims." Beuke was emotional as the hour of his death neared, crying frequently in his cell at the Lucasville prison, said Julie Walburn, an Ohio prisons spokeswoman.

Late Wednesday night, Beuke lost appeals before the U.S. Supreme Court, failing to convince the majority that he'd been on death row so long the execution would be unconstitutionally cruel and serve no purpose and that prescription medicine he takes could interfere with a drug used in Ohio's backup execution method. The state did not have to resort to the backup Thursday. Beuke died by Ohio's primary, intravenous injection method.

The Ohio Supreme Court denied a last-minute stay Thursday morning, turning aside an appeal related to a previously unsuccessful claim that brain damage contributed to Beuke's violent behavior. His lawyers said recent brain scans and expert conclusions showed Beuke suffered from moderate to severe brain damage. He was the 38th person put to death in Ohio since the state resumed the practice in 1999.

Wahoff gave Beuke a ride May 14, 1983, and was forced at gunpoint to drive to rural Hamilton County. Wahoff tried to run but was shot in the back and face and left for dead. He was paralyzed for life, and died four years ago. Craig's body was found June 1, 1983, in a roadside ditch in nearby Clermont County. He had been shot twice in the head and once in the chest with the same revolver used to shoot Wahoff and later Graham. Graham saw Beuke walking with a gas can and gave him a ride June 3, 1983. Beuke forced Graham to drive to a rural Indiana area and shot but didn't kill him.

Beuke has said he committed the crimes because he needed $2,500 to hire an attorney to defend him on a drug trafficking charge and needed a stolen car to rob a bank for the money. Craig's widow witnessed the execution, along with Wahoff's son and daughter. The families said remorse cannot alter what Beuke did and he deserves to die.

Ohio executes homicidal hitchhiker

Beuke plays keyboard and cries in his cell before execution

By Alan Johnson - Columbus Dispatch

May 13, 2010

LUCASVILLE, Ohio After playing the keyboard and crying in his cell, Michael Beuke - the Hamilton County man known as the "homicidal hitchhiker" was executed today for a murder he committed nearly 27 years ago. Beuke, 48, succumbed to the lethal injection drug at 10:53 a.m. at the Southern Ohio Correctional Facility near Lucasville.

Before the chemicals flowed into his bloodstream, he spent 17 minutes reciting the Rosary. He also recited an early Christian creed and the Lord's Prayer as tears rolled down his left cheek. Witnesses were shaking their heads before his repetitive statement was over, clearly impatient it went on so long. Once the drugs started flowing, Beuke became completely still within three minutes, and was pronounced dead seven or eight minutes later.

Among those who witnessed Beuke's execution were Susan Craig, the widow of murder victim Robert Craig, 27, and Dawn and Paul Wahoff, the children of Greg Wahoff, 28, another of Beuke's victims. Greg Wahoff was paralyzed and wheelchair bound after he was shot in the face and back by Beuke, to whom he had given a ride. Susan Craig said afterward, "It's been a really long time. I was pregnant at the time he was murdered. Now we can talk about Bob and have happy memories and not talk about Michael Beuke."

Beuke's attorney, Dale Baich, a federal public defender from Arizona, filed numerous unsuccessful appeals in the past week. Baich was on the case because he originally represented Beuke when Baich was with the Ohio public defender's office. One appeal alleged that Beuke had brain damage; another argued that a prescription medication he took might interfere with the drugs used in the backup, intramuscular lethal injection method. The Ohio Supreme Court and the 6th U.S. Circuit Court of Appeals rejected Beuke's last minute pleas. Gov. Ted Strickland also denied his clemency request yesterday. "The man who was executed today was not the same person who committed those crimes 27 years ago. His time in prison was a story of remorse and redemption," Baich said.

Prison officials said Beuke was very emotional when he arrived at the prison Wednesday morning and continuing crying as he talked to his attorneys throughout the day. He did not ask for a special last meal, instead opting for the standard dinner chicken a la king, mashed potatoes, lima beans and peaches. Prison officials allowed him to have the keyboard for his final day on Earth.

Craig picked up Beuke while he hitchhiked on I-275, Cincinnati's outbelt, on June 1, 1983. Beuke used a .38-caliber revolver to shoot Craig in the head and chest, court records show. He dumped Craig's body in a roadside ditch and stole his car. In addition to Craig and Wayhoff, Beuke also shot but did not kill Bruce Graham, 34, of West Harrison, In., after Graham picked him up hitchhiking in June 1983.

Prison officials were concerned in the past week that they might not be able to procure enough thiopental sodium, the single drug used in Ohio executions, because of a worldwide shortage. However, the state was able to find enough of the drug to kill Beuke.

He was the fifth Ohioan executed in five months this year and the 38th since capital punishment resumed in 1999. With an execution scheduled each month through November, the state likely this year to eclipse the seven men executed in 2004, the modern record.

Michael Francis Beuke

ProDeathPenalty.com

On May 14, 1983, Gregory Wahoff offered a ride to Michael Beuke who was walking along the side of the road. Once inside Wahoff’s car, Beuke produced a .38 caliber revolver and demanded that Wahoff drive to a rural area in Hamilton County, Ohio. When they reached a sufficiently secluded area, Beuke led Wahoff into the woods; Wahoff eventually charged towards Beuke, attempting to wrestle the gun away from him. After this effort was unsuccessful, Wahoff began to run away, but Beuke shot him in the back, lodging a bullet in his spine and paralyzing him. Beuke then placed the gun against Wahoff’s face and fired a second shot, which passed through Wahoff’s cheek and lodged in the ground. Wahoff was fully conscious at this point, but he pretended to be dead and apparently succeeded in fooling Beuke, who returned to the car and drove off.

Later that day, the police found Wahoff and took him to the hospital for emergency treatment; Wahoff survived Beuke’s brutal attack but he was permanently paralyzed, confined to a wheelchair and eventually died. A few weeks after the attempted murder of Gregory Wahoff, on June 1, 1983, the police discovered Robert Craig’s body in a ditch on the side of a rural road in Clermont County, Ohio. Craig worked as a deliveryman supplying fresh fish to local restaurants, and during these travels, he would often offer rides to hitchhikers in the area. Beuke allegedly told Michael J. Cahill, a man with whom Beuke worked, that he killed Craig after Craig picked him up along the side of the highway. An autopsy on Craig’s body revealed that he was shot twice in the head and once in the chest, and the police found his abandoned car in the parking lot of a local shopping mall.

Two days later, on June 3, 1983, Bruce Graham saw Beuke walking down the highway with a red gas can in hand. In an effort to help the apparently stranded traveler, Graham offered Beuke a ride to the nearest gas station. As he had done with Wahoff, Beuke brandished a short-barreled revolver and instructed Graham to drive to a rural area. When they arrived at the secluded destination, Beuke immediately fired at Graham. The bullet grazed Graham’s forehead, inflicting a minor but bloody wound. After an unsuccessful effort to wrestle the gun from Beuke, Graham sought refuge in a nearby farmhouse. As Graham fled, Beuke fired several shots, one of which struck Graham in the shoulder. After Beuke realized that Graham had escaped to safety, he got into the car and left the scene of the shooting. Sometime thereafter, Beuke’s co-worker, Cahill, told the police what he knew of Beuke’s involvement in the “mad hitchhiker” shootings.

The police obtained a warrant and searched the car that Beuke had been driving, which he had borrowed from Cahill. The police discovered a cup that had been removed from Wahoff’s car, a red gas can, and a blood-stained football jersey. The officers arrested Beuke who, at the time of his arrest, was in possession of a .38 caliber revolver — the same type of weapon he used to shoot Wahoff in the back.

In July 1983, an Ohio grand jury returned a ten-count indictment against Beuke, charging him with one count of aggravated murder, two counts of attempted aggravated murder, three counts of aggravated robbery, three counts of kidnapping, and one count of carrying a concealed weapon. The aggravated murder charge included two specifications, either of which, if proven beyond a reasonable doubt, would make Beuke eligible for the death penalty under Ohio law: (1) committing aggravated murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, and (2) committing aggravated murder in the course of an aggravated robbery.

Beuke’s jury trial began on September 19, 1983. The prosecution introduced extensive evidence implicating Beuke in the “mad hitchhiker” shootings, including Wahoff’s and Graham’s testimony of their nearly fatal encounters with Beuke, evidence linking the bullets extracted from Wahoff and Craig to Beuke’s gun, Beuke’s fingerprints on Wahoff’s and Craig’s automobiles, and Cahill’s testimony about Beuke’s confession. On October 5, 1983, the jury returned a guilty verdict on all ten counts and the two specifications, making Beuke eligible for capital punishment. Defense counsel moved for a continuance of the penalty hearing, but the trial court granted only a short, one-day continuance and set the hearing for October 7, 1983. At the penalty hearing, Beuke introduced a presentence report and mitigation testimony from his parents. Unpersuaded by the defense’s evidence, the jury found beyond a reasonable doubt that the aggravating factors outweighed the mitigating evidence and recommended that Beuke be sentenced to death. The trial court adopted the jury’s recommendation and imposed the death penalty. In April 2010, 27 years after imposing a sentence of death in this case, the trial court judge wrote a letter to the parole board opposing clemency for Beuke.

UPDATE: Michael Beuke, known as the "homicidal hitchhiker" was executed for a murder he committed nearly 27 years ago. Beuke also was found guilty of the attempted murders of Gregory Wahoff and Bruce Graham. Among those who witnessed Beuke's execution were Susan Craig, the widow of murder victim Robert Craig, 27, and Dawn and Paul Wahoff, the children of Greg Wahoff, 28, another of Beuke's victims. Greg Wahoff was paralyzed and wheelchair bound after he was shot in the face and back by Beuke, to whom he had given a ride. He apologized to the widows of his victims.

As Beuke said, “Mrs. Wahoff, I am sorry. Mrs. Craig, I am sorry. Mr. Graham, I am sorry," Wahoff’s daughter, Dawn, clasped hands with her brother, Paul, and Susan Craig, who sat side-by-side as witnesses. Beuke then launched into a 17-minute recitation of the Roman Catholic rosary, the Lord’s Prayer and other prayers. The 6-foot 4-inch Beuke occasionally whimpered while repeating the Hail Mary dozens of times, clasping rosary beads in his right hand. Dawn later reflected: “I was thinking, ‘You’re stalling the inevitable." But it’s his last minutes of his life. . . There’s nothing that is going to bring my dad back” Susan Craig said afterward, "June first, Bob will be dead as long as he was alive, how sad is that? It's been a really long time. I was pregnant at the time he was murdered. Now we can talk about Bob and have happy memories and not talk about Michael Beuke." Gregory Wahoff’s wife, JoAnn, of Bright, Ind., gave up her witness chair to her children. “I was content with watching the body brought out," she said afterward. “I’m just outraged," Mrs. Wahoff said of the decades of legal appeals. “It should not have gone on this long."

Beuke’s eyes remained closed throughout the prayers. He then became still, looking upwards. Once the drugs started flowing, Beuke became completely still within three minutes, and was pronounced dead seven or eight minutes later. Beuke, 48, succumbed to the lethal injection drug at 10:53 a.m. “I didn’t take it lightly that a person died today," Susan Craig said during a news conference following the execution. “This is his debt to my family and JoAnn (Wahoff’s) family and today he paid it.” Mrs. Craig called Beuke’s apology unsatisfying: “Don’t you think it’s time you man up and be honest? Don’t you dare tell me you’re sorry." Robert Craig Jr., named after his slain father, accompanied his mother to Lucasville but did not witness the execution. A grown man now, he never knew his father, killed before he was born. "It's pretty much surreal," said Bobby Craig. "It's like we went full circle, we closed the circle today," said Susan Craig.

State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274 (Ohio 1988). (Direct Appeal)

Defendant was convicted after jury trial in the Court of Common Pleas, Hamilton County, of murder, attempted aggravated murder, aggravated robbery, kidnapping, and carrying concealed weapon. The trial court adopted jury's recommendation and imposed sentence of death in addition to imposition of consecutive terms of imprisonment for other crimes. Following affirmance by the Court of Appeals, case came before Supreme Court on appeal as of right. The Supreme Court, Moyer, C.J., held that: (1) prosecutor's analogy of defendant as cancer requiring removal did not require reversal of death sentence; (2) prosecution's references to impact of crimes on victim's families did not require reversal of death sentence; and (3) death sentence was not disproportionate, improper, or excessive. Affirmed. Wright, J., filed opinion dissenting in part and concurring in part.

1. When an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof. (R.C. 2901.12[H].)

2. Consistent with the Sixth Amendment to the United States Constitution, a person who commits a crime partly in one state and partly in another state may be tried in either state.

Michael F. Beuke appeals from his convictions on various charges, including aggravated murder, for which he received the sentence of death.

On the morning of May 14, 1983, Gregory M. Wahoff picked up a hitchhiker, later identified as the defendant-appellant, Michael Beuke. Beuke produced a .38 caliber revolver and ordered Wahoff to drive east on I-275, explaining that he just wanted to take Wahoff's car and would bring it back. After exiting the freeway briefly to refuel the car at a Sohio gas station whose attendant later identified Beuke at trial, Wahoff re-entered the freeway and was directed to drive to Trustee Lane or Road, a small dirt road in Hamilton County, Ohio.

At the end of this road, Beuke told Wahoff to stop the car and get out. After both men exited the car, Wahoff offered the defendant his wallet by throwing it at him. Leaving the wallet where it fell, Beuke ordered Wahoff to walk to a wooded area. When Wahoff refused, Beuke asked him, “Do you want to die here?” At that point, Wahoff tried to get the gun from the defendant by running towards him. He missed his chance and kept on running, but did not get far. Beuke shot Wahoff in the back, the bullet lodging against his spine, and Wahoff fell to the ground, paralyzed. When he caught up with Wahoff, Beuke placed the gun against Wahoff's face and fired a second shot. Fully conscious, Wahoff played dead. Apparently convinced that he had killed Wahoff, Beuke got into Wahoff's car and drove away.

The defendant was seen driving out of Trustee Lane by a nearby resident who later identified him at trial. Beuke drove Wahoff's car, a red or maroon GTO, back to an area near where he had been hitchhiking on Colerain Avenue. The car broke down and Beuke had to push it some distance into a Ponderosa Steak House parking lot. As he pushed the car, he was seen by another witness who was also able to identify him at trial.

Meanwhile, the sheriff's department had been called to the scene of the shooting. On a hillside near Trustee Lane, a sheriff's deputy found Wahoff conscious but unable to walk. The bullet was surgically removed from his back and given to the police. A second bullet was recovered from the hillside two days later. Wahoff's car was found on May 16, 1983 in the Ponderosa Steak House parking lot where defendant had left it. Latent fingerprints belonging to Beuke were recovered from the car. The police also learned that a large green plastic cup was missing from Wahoff's car.

On May 23, 1983, Kim E. Wilson, a high school student who lived on Romohr Road in rural Clermont County, Ohio, watched as her mother helped Beuke free a 1974 green Thunderbird which was stuck off the side of the road. Beuke had borrowed the car from a friend and co-employee, Michael J. Cahill. Kim apparently directed Beuke to the home of Mr. and Mrs. Peter Voss where Beuke measured rooms for carpeting ordered from Beuke's employer, Harry's Corner. Both Kim and Peter Voss were able to later identify appellant at trial.

On June 1, 1983, Kim was walking down Romohr Road when she saw a red hat on the side of the road. As she drew near, she saw a body in the bushes down in the ditch. Testimony by a road department employee established the grass there had been cut at approximately 11:00 a.m. The body was lying on top of the clippings. Union Township police and an investigator with the Clermont County Prosecutor's office responded. The body was identified as being that of Robert S. Craig, a resident of Hamilton County. Two hundred and sixty dollars was found in Craig's shirt pocket and another five dollars in his wallet. He had been shot twice in the head and once in the chest. One gunshot wound was located between the victim's eyes. Craig's car was later recovered in a parking lot in the Tri-County Mall in Hamilton County. Upon opening the car's trunk, the police found fresh fish in storage containers.

Following Craig's killing, Beuke revealed to Cahill that he was the “mad hitchhiker” sought by the police in connection with shootings in the area. He told Cahill that he had been picked up by Craig on I-275 and that, before he actually killed Craig, Craig had forgiven him. Beuke also mentioned that, since that day, he always smelled fish even though no fish were around. The defendant also admitted to Cahill that he had shot another person.

Craig was employed by Inland Reef, a fresh fish supplier located in Hamilton County. He had a history of picking up hitchhikers and engaging them in conversation about religion. On June 1, 1983, at approximately 11:00 a.m., Craig left Inland Reef to make a delivery of fish to a restaurant in Hamilton County which he had reached, on other occasions, via I-275 and I-71. The June 1 delivery, however, was never completed.

On June 3, 1983, Bruce B. Graham saw a male hitchhiker carrying a red gas can while Graham was driving down I-74 to Cincinnati. Graham assumed that the man had run out of gas somewhere on the expressway. He picked up the man in order to take him to an exit and obtain gas for his car. Graham identified Beuke later at trial as the man he had picked up.

While Graham drove, the defendant pulled a short-barreled revolver out of his jacket and instructed Graham to drive a certain route, telling him that he “needed” his car and that he was just going to tie him up loosely so that Graham could later escape. He ordered Graham to exit the freeway in Indiana and drive to a secluded rural area. When Graham stopped the car, Beuke immediately fired the gun at him. The bullet grazed Graham's head, inflicting a minor but bloody wound. A struggle for the gun ensued. Graham eventually jumped out of the car and ran, but, as he fled, Beuke fired several shots, one striking Graham in the shoulder. Graham made his way to a farmhouse and Beuke drove off in Graham's car. Graham, who had approximately $160 in cash, was never asked for his wallet.

Graham was taken to a hospital where the bullet was removed from his shoulder and given to Indiana police. A description of Graham's car was disseminated and a few hours later the car was discovered at I-74 and North Bend Road, not far from the Hamilton County site where Graham first picked up the defendant. There was a bullet hole in the windshield and blood splattered in the car.

Eventually, Cahill informed the authorities about the criminal activities Beuke had described to him. A broadcast seeking defendant's apprehension followed. The green Thunderbird was found a few blocks from Beuke's home and, pursuant to a warrant, the car was searched on June 29, 1983. The green cup which had been taken from Wahoff's automobile, the gas can used in the Graham assault, and a blood-stained blue and white football jersey were found in the trunk.

At 11:52 a.m. on June 29, a Hamilton County sheriff's detective recognized Beuke from a composite which had been circulated. Beuke first responded to questioning by giving a false name. Thereafter, Beuke admitted his identity and told the detective, “You have got me.” At the time of his arrest, Beuke had a .38 caliber revolver wrapped inside a windbreaker that he was carrying.

Beuke was indicted on: one count of aggravated murder, with two specifications, (1) for causing the death of Robert Craig as part of a course of conduct involving the purposeful attempt to kill two or more persons, and (2) for causing the death of Craig in the course of an aggravated robbery; two counts of attempted aggravated murder of Wahoff and Graham; three counts of aggravated robbery for the theft of automobiles belonging to Wahoff, Craig, and Graham; three counts of kidnapping for the abduction of Wahoff, Craig, and Graham; and one count of carrying a concealed weapon.

Beuke's jury trial began September 19, 1983. Evidence presented by the prosecution included Wahoff's and Graham's testimony, fingerprints belonging to Beuke found on the Wahoff and Craig automobiles, bullets removed from Craig and Wahoff identified as having been fired from Beuke's gun, and defendant's admissions to Cahill. The prosecution demonstrated Beuke's familiarity with the areas where Craig, Wahoff, and Graham were taken and shot, as well as the locations where their cars were found. The trial concluded on October 5, 1983 after the prosecution presented a total of thirty-nine witnesses and without Beuke's having testified or offered any other direct evidence in his defense.

The jury returned a verdict of guilty on all ten counts of the indictment as well as the two specifications making Beuke eligible for the death penalty.

The mitigation hearing was continued to October 7, 1983, although defense counsel sought more time to prepare therefor. In mitigation, the defense offered into evidence a presentence report and presented only defendant's parents as witnesses at the hearing. The parents' testimony focused upon the family's religious orientation, the defendant's active involvement in related activities and the Boy Scouts through age eighteen, and the family's personal and economic hardship.

The jury found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and recommended that Beuke be sentenced to death. The trial court adopted the jury's recommendation and imposed the sentence of death in addition to the imposition of consecutive terms of imprisonment for the other crimes. The court of appeals affirmed.

The cause is now before this court upon an appeal as of right.

MOYER, Chief Justice.

The defendant-appellant asserts various errors by the trial and appellate courts in twenty propositions of law. Many of these legal issues have been decided in prior cases and will be disposed of accordingly. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.

Beuke's first fourteen propositions of law allege errors occurring at the penalty phase of his trial. Propositions of law fifteen through twenty allege errors occurring at the guilt phase of the proceedings. For the reasons set forth below, we overrule the propositions of law and affirm the convictions and sentence of death.

I

A

In his first proposition of law, Beuke contends prejudicial and inflammatory prosecutorial comments made in closing argument at the penalty phase of his trial caused the jury to recommend the sentence of death.

The prosecutorial comments challenged by Beuke fall into three categories: (1) comments upon defendant's evidence in support of mitigating factors, which Beuke claims transformed the mitigating factors into aggravating circumstances; (2) arguments that allegedly establish non-statutory aggravating circumstances; and (3) comments allegedly intended solely to incite passion and prejudice against the defendant, and evoke sympathy for the victims from the jury.

We find the prosecution's description of the nature and circumstances of Beuke's course of conduct as “horrible,” “treacherous,” “vicious,” and a “Hollywood murder” to fall within the first category mentioned above. Beuke claims that these comments transformed “the nature and circumstances of the offense,” a mitigating factor under R.C. 2929.04(B), into an aggravating circumstance. We find the characterization, however, to be permissible comment upon the nature and circumstances of the offense, based upon evidence presented at trial, in support of both the aggravating circumstances and in rebuttal to the mitigating factors. The descriptions further constitute realistic argument for the death penalty within the latitude afforded counsel in closing argument by statute and case law. See R.C. 2929.03(D)(1) and (2); State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. Similarly, the prosecutor was within the permissible scope of argument upon defendant's history and character when he responded to defendant's expression of remorse, which according to the trial court was present in the presentence report before the jury, with rebuttal to the contrary. Id. Finally, permitting the prosecution in closing argument to illuminate the absence of mitigating factors is consistent with the necessity of proving aggravating circumstances outweigh mitigating factors beyond a reasonable doubt, before the sentence of death may be imposed. R.C. 2929.03(D)(1). Thus, contrary to Beuke's assertion, these challenged arguments do not transform mitigating factors into aggravating circumstances, but fall within the permissible bounds of closing argument.

In the second category of challenges, Beuke contends that the prosecutor's reference to the possibility of future danger to society if the defendant were spared and ultimately paroled establishes a non-statutory aggravating circumstance. While requiring the jury through instruction or specification to review a non-statutory aggravating circumstance such as “future dangerousness” would constitute reversible error under State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494 N.E.2d 1061, merely arguing such in summation, coupled with a proper jury instruction explaining the statutory aggravating circumstances and mitigating factors, does not create a non-statutory aggravating circumstance.

Finally, in the third category, Beuke contends that the prosecution improperly argued for the death penalty by making arguments intended to incite passion and prejudice against the defendant and evoke sympathy for the victims and survivors from the jury. “ * * * [A] conviction based solely on the inflammation of fears and passions, rather than proof of guilt, requires reversal * * *.” State v. Williams (1986), 23 Ohio St.3d 16, 20, 23 OBR 13, 17, 490 N.E.2d 906, 911. However, such reversal is not mandated where it is clear beyond a reasonable doubt that, absent the prosecution's improper remarks, the jury would have found defendant guilty. United States v. Hasting (1983), 461 U.S. 499, 510-511, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96; State v. Smith (1984), 14 Ohio St.3d 13, at 15, 14 OBR 317, at 319, 470 N.E.2d 883, at 886. See, also, Darden v. Wainwright (1986), 477 U.S. 168, 179-180, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144. These principles apply with equal force to claims of prosecutorial misconduct occurring at the penalty phase of the proceedings. State v. Maurer, supra, 15 Ohio St.3d at 267-268, 15 OBR at 403-404, 473 N.E.2d at 793-794.

First, the prosecution's analogy of the defendant as a “cancer,” requiring removal, is disposed of by State v. Woodards (1966), 6 Ohio St.2d 14, 26, 35 O.O.2d 8, 14-15, 215 N.E.2d 568, 578, wherein similar statements, though intemperate and better left unsaid, were within the allowable scope of expression. Next, the prosecutor's expression of fear of the defendant, although a disfavored practice, is not prejudicially erroneous if predicated upon the evidence. State v. Stephens (1970), 24 Ohio St.2d 76, 82-83, 53 O.O.2d 182, 185, 263 N.E.2d 773, 777. The record does not imply the jury understood the opinion to be based upon knowledge outside the record, and we conclude there is no prejudice thereby. Other prosecutorial arguments are assailed as impermissibly urging the jury to recommend the death sentence to satisfy public demand and make an example of the defendant. Yet, when reviewed in their entirety, these comments consist of a general discussion of the death penalty, concluding with a specific request that the death penalty be imposed to maintain community standards. As such, the arguments are not constitutionally infirm, cf. Booth v. Maryland (1987), 482 U.S. 496, ----, 107 S.Ct. 2529, 2533, 96 L.Ed.2d 440, 449 (“[i]t is the function of the sentencing jury to ‘express the conscience of the community on the ultimate question of life or death’ * * * [citation omitted]”), and the record discloses no prejudice to the defendant thereby. State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17 O.O.3d 92, 96-97, 407 N.E.2d 1268, 1273-1274.

Last, Beuke relies on State v. White (1968), 15 Ohio St.2d 146, 44 O.O.2d 132, 239 N.E.2d 65, to argue that the prosecution's references to the impact of crimes on the victim's families were inflammatory, prejudicial, and require reversal of the sentence of death. State v. White, supra, at 151, 44 O.O.2d at 135, 239 N.E.2d at 70, considered the prosecution's use of evidence of the decedent's background to argue for the death penalty:

“Such evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused and the penalty to be imposed. The principal reason for the prejudicial effect is that it serves to inflame the passion of the jury with evidence collateral to the principal issue at bar. Although the admission and subsequent argument with the use of this testimony may very well have constituted prejudicial error before a jury, we do not believe that defendant was prejudiced before a three-judge court under the facts in the instant case.”

We are further presented with Booth v. Maryland, supra, wherein the United States Supreme Court held that a state statute is unconstitutional to the extent that it requires victim-impact statements to be considered by the jury in the sentencing phase of a capital-murder trial. In the case before us, the prosecution's comments were presented before a jury in closing argument in response to the photographic and testimonial evidence in mitigation concerning the defendant's background and childhood history. As such, the challenged argument differs greatly from the victim-impact statement in Booth which detailed the emotional trauma suffered by the family, the personal character and reputation of the victims; contained an assessment of the impact on the family; and included family members' opinions and characterizations of the crime-all of which were admissible against Booth by statute in the sentencing phase of his trial. The court found such information unrelated to the blameworthiness of a particular defendant and inconsistent with the reasoned decisionmaking required in capital cases. Booth v. Maryland, supra, 482 U.S. at ----, 107 S.Ct. at 2534, 2536, 96 L.Ed.2d at 449-450, 452.

We find the prosecution's statements in this case do not rise, inter alia, to the level of a victim-impact statement such as that found constitutionally infirm in Booth v. Maryland, supra. Further, Ohio law does not mandate consideration of victim-impact statements by the jury in capital cases. State v. Post (1987), 32 Ohio St.3d 380, 382-383, 513 N.E.2d 754, 758. Scrutinizing the comments in light of State v. White, supra, and Booth v. Maryland, supra, we find the prosecution's closing argument not so prejudicial as to have inflamed the jury and influenced it to render a more severe recommendation than it otherwise would have made. We do, however, reemphasize the forceful reasons against such argument. Id.

B

In his second and third propositions of law, Beuke challenges the prosecution's closing remarks and the trial court's jury instructions identifying the jury's role in sentencing to constitute but a recommendation of death to the court as unconstitutional in light of Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231. With respect to nearly identical statements, we have held that accurate statements of the law in closing argument and in jury instructions do not impermissibly reduce the jury's sense of responsibility and increase the likelihood of a recommendation of death where not made to induce reliance on the appellate process. State v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 413; State v. Steffen (1987), 31 Ohio St.3d 111, 113-114, 31 OBR 273, 275, 509 N.E.2d 383, 387-388 (jury instructions); State v. Rogers (1986), 28 Ohio St.3d 427, 28 OBR 480, 504 N.E.2d 52, paragraph one of the syllabus (on remand for reconsideration in light of Caldwell ) (prosecution's comments and jury instructions); State v. Scott (1986), 26 Ohio St.3d 92, 103-104, 26 OBR 79, 88-89, 497 N.E.2d 55, 64-65; State v. Williams (1986), 23 Ohio St.3d 16, 21-22, 23 OBR 13, 18-19, 490 N.E.2d 906, 912 (prosecution's comments and jury instructions); State v. Buell (1986), 22 Ohio St.3d 124, 142-144, 22 OBR 203, 219-220, 489 N.E.2d 795, 811-813 (jury instructions); State v. Jenkins (1984), 15 Ohio St.2d 164, 15 OBR 311, 473 N.E.2d 264, paragraph six of the syllabus (jury instructions).

A review of the record persuades us that, although it is preferable that no reference be made to the jury regarding the finality of their decision, State v. Rogers, supra, 28 Ohio St.3d at 433, 28 OBR at 485, 504 N.E.2d at 57; State v. Williams, supra, 23 Ohio St.3d at 22, 23 OBR at 19, 490 N.E.2d at 912; State v. Buell, supra, 22 Ohio St.3d at 144, 22 OBR at 220, 489 N.E.2d at 813; State v. Jenkins, supra, 15 Ohio St.3d at 202-203, 15 OBR at 344, 473 N.E.2d at 298-299, the prosecution's comments remain within the constitutional boundaries set by Caldwell v. Mississippi, supra. State v. Rogers, supra, 28 Ohio St.3d at 434, 28 OBR at 486, 504 N.E.2d at 58; State v. Jenkins, supra, 15 Ohio St.3d at 202, 15 OBR at 344, 473 N.E.2d at 298-299 (no per se rule applies to comments directed to the jury's role in sentencing phase).

C

In his fourth proposition of law, defendant asserts that the trial court considered the nature and circumstances of his crimes as an additional nonstatutory aggravating circumstance rather than as a mitigating factor under R.C. 2929.04(B).

This proposition was rejected in State v. Steffen, supra, 31 Ohio St.3d at 116-117, 31 OBR at 278, 509 N.E.2d at 389-390. As stated therein, “ * * * the nature and circumstances of certain offenses will be such that no mitigating feature can be extracted.” Id. In such cases, consideration of the nature and circumstances of the crime does not create a new non-statutory aggravating circumstance forbidden by Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398.

As in State v. Steffen, supra, we further reject the contention that the trial court failed to consider Beuke's youth and his lack of significant prior criminal convictions as mitigating factors under R.C. 2929.04(B)(4) and (5). The trial court's opinion reveals a careful consideration of all statutory factors, and it found that the factors of age and prior criminal record were non-mitigating. A court may so find. State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus; State v. Byrd (1987), 32 Ohio St.3d 79, 93, 512 N.E.2d 611, 625.

D

The fifth proposition of law claims the trial court denied defendant the individualized consideration required by Woodson v. North Carolina (1976), 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 and Lockett v. Ohio (1978), 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973. In support, Beuke identifies two excerpts from the trial court's opinion which resemble the trial court's opinion in State v. Byrd, supra, also from Hamilton County. This proposition lacks merit.

The trial judge in this case heard over forty witnesses and received into evidence over one hundred exhibits. The careful detail with which the trial court completed its opinion provides no support for this purported error.

E

We further reject Beuke's sixth proposition of law which contends that the refusal of the trial court to order neurological testing of defendant for organic brain damage prior to final sentencing constituted an abuse of discretion. Such requests are directed to the sound discretion of the trial court under R.C. 2929.024, State v. Jenkins, supra, 15 Ohio St.3d at 193, 15 OBR at 336, 473 N.E.2d at 291-292, and may be granted if the court finds the requested services “ * * * reasonably necessary for proper representation of a defendant.” R.C. 2929.024. Defendant's motion for neurological testing was both untimely and unsupported by reasonable necessity. Made after the trial and sentencing hearings were concluded, but before final sentencing by the court, the motion was unsupported by any justification apart from being desired by defendant's parents. We note that Beuke had previously been the subject of a complete psychiatric examination.

F

In his seventh proposition of law, appellant contends the trial court did not adequately explain why the aggravating circumstances of defendant's offenses outweighed the mitigating factors presented at sentencing, thereby precluding appellate review, and requiring reversal of his sentence of death.

R.C. 2929.03(F) requires the trial court, when it imposes a sentence of death, to state in a separate opinion its specific findings as to the existence of any mitigating factors, the aggravating circumstances which defendant was found to have committed, and the reasons why these aggravating circumstances were sufficient to outweigh the mitigating factors. State v. Maurer, supra, at paragraph three of the syllabus.

The trial court used essentially the same analysis in complying with this statute as this court used, for example, in State v. Mapes (1985), 19 Ohio St.3d 108, 117-118, 19 OBR 318, 326-327, 484 N.E.2d 140, 148-149; State v. Martin (1985), 19 Ohio St.3d 122, 131-132, 19 OBR 330, 337-338, 483 N.E.2d 1157, 1165-1167; and State v. Glenn (1986), 28 Ohio St.3d 451, 460-462, 28 OBR 501, 508-510, 504 N.E.2d 701, 710-712. That is, after describing the aggravating circumstances present, the trial court then enumerated all the mitigating factors of R.C. 2929.04(B) and considered each factor's applicability in light of the evidence presented. Finding no mitigating factors were sufficiently demonstrated, the trial court could do no more than say so. We find the trial court's opinion to be in compliance with R.C. 2929.03(F).

G Beuke contends, in his eighth proposition of law, that a one-day continuance between his guilty verdict and sentencing hearing was insufficient to allow counsel to prepare evidence in support of mitigation and that, therefore, the trial court deprived him of due process and effective assistance of counsel. Whether the refusal to grant a continuance constitutes an abuse of discretion depends upon the circumstances present in the case, “ ‘ * * * particularly in the reasons presented to the trial judge at the time the request is denied.’ ” State v. Unger (1981), 67 Ohio St.2d 65, 67, 21 O.O.3d 41, 43, 423 N.E.2d 1078, 1080. We find no abuse of discretion.

Defendant's objection and request for a continuance was not supported by any specific reasons why counsel would not be prepared. A pre-sentence report and a mental examination were prepared in the intervening day and were available at the hearing for submission to the jury, in the defendant's discretion.

Defense counsel, who had nearly two and one-half months to prepare the case for trial, were aware of the overwhelming evidence of guilt and could anticipate the necessity of preparing for a mitigation hearing. State v. Steffen, supra, 31 Ohio St.3d at 121, 31 OBR at 281-282, 509 N.E.2d at 393. A review of the evidence offered pursuant to the statutory mitigating factors reveals that much evidence that could have supported a lesser sentence was placed before the jury in support of the mitigating factors identified in R.C. 2929.04(B)(4), (5), and (7). See State v. Unger, supra; State v. Price (1973), 34 Ohio St.2d 43, 63 O.O.2d 82, 295 N.E.2d 669, syllabus; State v. Sowders (1983), 4 Ohio St.3d 143, 4 OBR 386, 447 N.E.2d 118. Cf. State v. Johnson, supra, 24 Ohio St.3d at 88-92, 24 OBR at 283-286, 494 N.E.2d at 1062-1065 (denial of right to effective assistance of counsel at sentencing). The eighth proposition of law is not well-taken.

H

In his ninth proposition of law, defendant argues that his death sentence is disproportionately severe because some ten other persons convicted of aggravated murder during an aggravated robbery in the same county were not capitally prosecuted. Similarly, the tenth proposition contends that the proportionality review required of all appellate courts under R.C. 2929.05 should encompass not only cases where the death sentence was sought, but also where the offender was death-eligible. This court has recently rejected both arguments in State v. Steffen, supra, 31 Ohio St.3d at 123-124, 31 OBR at 283-284, 509 N.E.2d at 394-395, and we adhere to that analysis.

I

Beuke's eleventh proposition of law assails the result of Hamilton County's aggravated murder convictions on equal protection grounds. Defendant contends that those convicted of a white person's murder are routinely sentenced to death whereas killers of blacks are readily spared. Our decisions in State v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585, syllabus; and State v. Steffen, supra, 31 Ohio St.3d at 124-125, 31 OBR at 284-285, 509 N.E.2d at 395-396, are dispositive. As was the case in Zuern and Steffen, Beuke has not offered any evidence which suggests this jury's recommendation was prompted by racial considerations. Thus, his argument on this issue must also fail.

J

Appellant's twelfth proposition of law asserts the trial court erred to Beuke's prejudice by instructing the jury during the penalty hearing to disregard consideration of sympathy or bias in its deliberations. Defendant did not object to the instruction at trial and so raises it now as plain error. The instruction challenged here mirrors that given in State v. Steffen, supra, and, again, the conclusion reached therein is dispositive. See State v. Steffen, supra, 31 Ohio St.3d at 125, 31 OBR at 285, 509 N.E.2d at 396, and cases cited. As well, we find no prejudice to the defendant.

K

In his thirteenth proposition of law, Beuke asserts that the trial court unconstitutionally removed three prospective jurors for their views on capital punishment, denying him a fair and impartial jury under the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, and thereby requiring reversal of his conviction under Davis v. Georgia (1976), 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339. See, also, Gray v. Mississippi (1987), 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 ( Davis reaffirmed). Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, as clarified by Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, establishes the standard for the removal of prospective jurors.

Beuke argues that the proper application of the test of Witherspoon v. Illinois, supra, shows the exclusion of prospective jurors Ritz, Gilbert, and Patterson to be constitutionally infirm. Under R.C. 2945.25(C), which reflects, in principle, the Witherspoon standard, a prospective juror may be removed for cause where “ * * * 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.” See State v. Jenkins, supra, 15 Ohio St.3d at 180, 15 OBR at 325, 473 N.E.2d at 281-282.

Wainwright v. Witt, supra, 469 U.S. at 424, 105 S.Ct. at 852, subsequently clarified the Witherspoon standard to be “ * * * whether the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ [ Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581].” The Witt standard was thereafter adopted and applied by this court in State v. Rogers (1985), 17 Ohio St.3d 174, 178-179, 17 OBR 414, 417-418, 478 N.E.2d 984, 989-990, and at paragraph three of the syllabus, vacated on other grounds (1985), 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452, and is a basis for challenging prospective jurors for cause under R.C. 2945.25(O). State v. Buell, supra, 22 Ohio St.3d at 139, 22 OBR at 216, 489 N.E.2d at 808.

As Beuke's trial was held in 1983, the trial court applied the more restrictive Witherspoon test found in R.C. 2945.25(C). Careful review of the voir dire record establishes no error under either the Witherspoon or Witt standards in the exclusion of the three prospective jurors for cause. “The fact that the defense counsel was able to elicit somewhat contradictory viewpoints from these jurors during his examination does not, in and of itself, render the court's judgment erroneous.” State v. Scott, supra, 26 Ohio St.3d at 98, 26 OBR at 83-84, 497 N.E.2d at 60-61. Moreover, since there will be situations where the trial court is left with a definite impression that a prospective juror would be unable to faithfully and impartially apply the law, deference must be given to the trial judge who sees and hears the juror. Wainwright v. Witt, supra, 469 U.S. at 425-426, 105 S.Ct. at 852-53. The thirteenth proposition of law is not well-taken.

L

Defendant's fourteenth proposition of law attacks the constitutionality of Ohio's statutory scheme for imposing the death penalty as violative of the Eighth Amendment. In an argument comprised of subparts (A) through (G), defendant contends the statutory death penalty scheme: (A) serves no rational state interest; (B) is inflicted disproportionately on those who kill whites as compared to those who kill blacks; (C) fails to narrow the class of death-eligible offenders, and permits the state to obtain a death sentence upon less proof in a felony-murder case than in a case involving prior calculation and design; (D) is impermissibly quasi-mandatory and should require mitigating factors to be substantially outweighed by aggravating circumstances before death is imposed; (E) is impermissible because it prevents juries from extending mercy; (F) together with Crim.R. 11(C)(3), encourages guilty pleas to avoid death; and (G) fails to provide adequate guidance to the sentencing authority.

Each premise on which defendant relies as a basis to argue the unconstitutionality of Ohio's death penalty statute has been resolved adversely to defendant's position by this court. Most recently, these challenges were raised virtually verbatim and rejected in State v. Steffen, 31 Ohio St.3d supra, at 125, 31 OBR at 285-286, 509 N.E.2d at 396. We remain unpersuaded by defendant's arguments. See, also, State v. Jenkins, supra, 15 Ohio St.3d at 167-169, 167-171 and 177-178, 210, 191-192, 172-173, 15 OBR at 314-315, 314-317 and 322-323, 351, 334-335, 318-319, 473 N.E.2d at 272-273, 272-275 and 279-280, 304-305, 290-291, 275-277, addressing subparts A, C, D, E and G, respectively; State v. Zuern, supra, syllabus; and State v. Steffen, supra, 31 Ohio St.3d at 124-125, 31 OBR at 284-285, 509 N.E.2d at 395-396, addressing subpart B; State v. Buell, supra, 22 Ohio St. at 138, 22 OBR at 215, 489 N.E.2d at 808, addressing subpart F; and, generally, State v. Maurer, supra, at paragraph one of the syllabus, and State v. Rogers, supra, 17 Ohio St.3d at 176, 17 OBR at 415-416, 478 N.E.2d at 988.

II

In propositions of law fifteen through twenty which follow, the focus of Beuke's appeal shifts from the penalty phase to the guilt phase of his trial.

A

In his fifteenth proposition of law, defendant challenges various rulings by the trial court during voir dire. First, he takes exception to the trial court's refusal to permit inquiry into why certain prospective jurors had an interest in jury duty. Second, he claims the trial court further abused its discretion when it refused to disqualify four jurors.

Determination of issues raised in voir dire in criminal cases has long been held to be within the discretion of the trial judge. State v. Anderson (1972), 30 Ohio St.2d 66, 59 O.O.2d 85, 282 N.E.2d 568; R.C. 2945.25. No prejudicial error can be assigned the examination of veniremen in qualifying them as fair and impartial jurors unless a clear abuse of discretion is shown. State v. Ellis (1918), 98 Ohio St. 21, 120 N.E. 218, paragraph one of the syllabus. While R.C. 2945.27 requires that the trial court allow reasonable examination of prospective jurors by counsel for the defense and prosecution, State v. Anderson, supra, 30 Ohio St.2d at 72, 59 O.O.2d at 89, 282 N.E.2d at 572, the trial court retains the right and responsibility for controlling all proceedings during the criminal trial under R.C. 2945.03, and must limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of truth regarding the matters at issue. State v. Bridgeman (1977), 51 Ohio App.2d 105, 109-110, 5 O.O.3d 275, 277, 366 N.E.2d 1378, 1383.

Defendant cites several instances in which he contends the trial court abused its discretion by permitting the prosecution to ask the jurors whether they wanted to serve on the jury, but precluding the defendant from going further to ask why the jurors wanted to serve. The prosecution was permitted to inquire if, not why, jury service was desired. While defense counsel may have anticipated uncovering enmity, bias, or unsuitability of the jurors and cause for challenge under R.C. 2945.25(B) and (O), the trial court found the pursuit of this line of questioning put “the juror on the spot” and was outside the scope of voir dire. Our review of the transcript reveals that the court's rulings were well within its discretion and that the defense otherwise exercised great latitude in examining the jurors for enmity or bias.

Beuke next submits that the trial court abused its discretion when it overruled his challenge for cause with respect to prospective jurors Fiebig, Creedon, Nared, and Schmidlin. Beuke, in effect, contends each juror exhibited the requisite bias for removal under Crim.R. 24(B)(9) and (14) and the identical provisions of R.C. 2945.25(B) and (O), respectively. Crim.R. 24(B) states, in pertinent part: “Challenge for cause. A person called as a juror may be challenged for the following causes: (9) That he is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no 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. * * * (14) That he is otherwise unsuitable for any other cause to serve as a juror. The validity of each challenge listed in this subdivision shall be determined by the court.”

Application of this language disposes of defendant's claims as to jurors Fiebig, Creedon, Nared and Schmidlin. The trial court's refusal to dismiss the jurors for cause reflects that it was satisfied that the challenged jurors would fairly and impartially execute their duties as jurors. Our review of the transcript and circumstances surrounding the extensive voir dire of these jurors reveals no clear abuse of discretion. The fifteenth proposition of law is overruled.

B

In his sixteenth proposition of law, Beuke argues that the admission into evidence of the personal background of murder victim Robert Craig during the guilt phase of Beuke's trial constitutes reversible error. Beuke maintains that testimony from Craig's widow as to the number and ages of their children and as to Craig's having previously aided hitchhikers is impermissible under State v. White, supra, at paragraph two of the syllabus, and is excludable under Evid.R. 403(A) and 402 as prejudicial and irrelevant.

Although reliance upon evidence of the victim's background in arguing for the death penalty is improper and constitutes error in the sentencing phase of a capital trial, State v. White, supra, the same evidence may be admissible, relevant evidence in the guilt phase of the proceedings. At this stage, victim-background evidence may be relevant to establishing facts of consequence or otherwise necessary to prove an element of the crime. As always, however, even relevant evidence may be excluded where its probity is substantially outweighted by other concerns encompassed in Evid.R. 403.

Notwithstanding even constitutional error in the admission of evidence, this court has held that “such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of defendant's guilt.” State v. Williams (1983), 6 Ohio St.3d 281, 6 OBR 345, 452 N.E.2d 1323, paragraph six of the syllabus. In this case, the overwhelming evidence of guilt renders any error in the admission of Craig's personal background evidence harmless beyond a reasonable doubt. The sixteenth proposition of law is overruled.

C

In the seventeenth proposition of law, Beuke argues that proper venue is not established to prosecute him in Hamilton County, Ohio, for the murder of Robert Craig, whose body was found in Clermont County, Ohio. This court articulated Ohio law relevant to such claims in State v. Draggo (1981), 65 Ohio St.2d 88, 89-91, 19 O.O.3d 294, 295-296, 418 N.E.2d 1343, 1345-1346.FN1 The relevant statute, R.C. 2901.12, provides, in subsection (G), that venue lies in any jurisdiction in which an offense or any element of an offense is committed; and further provides, in subsection (H), that when an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof. Prima facie evidence of a course of criminal conduct may be established through proof the offenses involved the same or similar modus operandi. R.C. 2901.12(H)(5). FN2

FN1. State v. Draggo (1981), 65 Ohio St.2d 88, 89-90, 19 O.O.3d 294, 295, 418 N.E.2d 1343, 1345, states, in pertinent part: “Crim.R. 18(A) states that, ‘[t]he venue of a criminal case shall be as provided by law.’ “Thus, as prescribed by Crim.R. 18(A), reference to the Ohio Constitution and the applicable venue sections of the Revised Code is necessary. “Section 10 of Article I of the Ohio Constitution states, in pertinent part: * * * In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *.’

“The primary purpose of the constitutional provision is to fix the place of trial. State v. Fendrick (1907), 77 Ohio St. 298, 300, 82 N.E. 1078. “R.C. 2901.12 contains the statutory foundation for venue. The relevant provisions of this section read, in pertinent part, as follows: “ ‘(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element thereof was committed. * * * (G) When it appears beyond a reasonable doubt that any offense or any element thereof was committed in any of two or more jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any such jurisdiction. (H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, he may be tried for all such offenses in any jurisdiction in which one such offense or any element thereof occurred. * * * [ (5) The offenses involved the same or a similar modus operandi * * *.] (Emphasis added.)’

“Venue is not a material element of any offense charged. The elements of the offense charged and the venue of the matter are separate and distinct. State v. Loucks (1971), 28 Ohio App.2d 77, 274 N.E.2d 773, and Carbo v. United States (C.A. 9, 1963), 314 F.2d 718. Yet, in all criminal prosecutions, venue is a fact that must be proved at trial unless waived. State v. Nevius (1947), 147 Ohio St. 263 [71 N.E.2d 258].” FN2. R.C. 2901.12(H) states in part:

“When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, he may be tried for all such offenses in any jurisdiction in which one such offense or any element thereof occurred. Without limitation on the evidence which may be used to establish such course of conduct, any of the following is prima-facie evidence of a course of criminal conduct: * * * (5) The offenses involved the same or a similar modus operandi.”

We find Beuke's assertion meritless. Our review of the record leads us to conclude that the facts and circumstances in evidence are sufficient to demonstrate venue for the murder of Craig properly lies in Hamilton County. That is, the statutory venue provisions are satisfied whether one considers the kidnapping, aggravated robbery, and aggravated murder of Craig to be a course of conduct, or considers the separate offenses against Wahoff, Craig, and Graham to be a course of conduct with similar modus operandi. State v. Urvan (1982), 4 Ohio App.3d 151, 4 OBR 244, 446 N.E.2d 1161, paragraph one of the syllabus; State v. Fowler (1985), 27 Ohio App.3d 149, 27 OBR 182, 500 N.E.2d 390, paragraph four of the syllabus. See, generally, Annotation (1976), 73 A.L.R.3d 907, 921, Section 5.

Beuke next contends that his Ohio trial for the aggravated robbery and attempted aggravated murder of Graham violated his right guaranteed by the Sixth Amendment to the United States Constitution to be tried in the “ * * * State and district wherein the crime shall have been committed * * *.” In support, Beuke states that the offenses against Graham were consummated in the state of Indiana. He admits that the charge of kidnapping could be tried in either Ohio or Indiana.

Under Ohio law, venue properly lies for these offenses in Hamilton County pursuant to R.C. 2901.12 and Section 10, Article I, Ohio Constitution, as offenses committed as part of a course of conduct. State v. Draggo, supra. However, this does not dispose of Beuke's Sixth Amendment claim.

While appearing to be an issue of first impression in Ohio, Beuke's claim that his Sixth Amendment right is violated by his trial in Ohio is opposed by well-settled precedent from other jurisdictions which hold that “[a] person who commits a crime partly in one state and partly in another state may be tried in either state under the [S]ixth [A]mendment of the United States Constitution.” Lane v. State (Fla.1980), 388 So.2d 1022, 1028. See State v. Harrington (1969), 128 Vt. 242, 251, 260 A.2d 692, 697-698; State v. Reldan (1979), 166 N.J.Super. 562, 567, 400 A.2d 138, 141. Accord Conrad v. State (1974), 262 Ind. 446, 317 N.E.2d 789. But, cf., State v. Harvey (Mo.App.1987), 730 S.W.2d 271.

As explained by the Vermont Supreme Court in State v. Harrington, supra, 128 Vt. at 250-251, 260 A.2d at 697-698: “It is not essential to criminal responsibility that the accused do every act necessary to accomplish the crime within the jurisdiction where he is prosecuted. Strassheim v. Daily, 221 U.S. 280 [282, 31 S.Ct. 558, 559], 55 L.Ed. 735, 738; State v. Jost, [1968] 127 Vt. 120, 124, 241 A.2d 316. Where the crime is composed of an interstate series of acts, it is jurisdictionally competent for a state to attach legal consequences to any overt act committed within its boundaries, even though the final impact and injury may occur elsewhere. People v. Zayos, 217 N.Y. 78, 111 N.E. 465, 466; People v. Botkin, 132 Cal. 231, 233, 64 Pac. 286; See Leflar, Conflict of Laws § 103.

“In the federal jurisdiction, if crime is committed partly in one district and partly in another, the offender may be tried in either district. If it were otherwise, there could be a serious failure of justice. Burton v. United States, 202 U.S. 344 [388, 26 S.Ct. 688], 701, 50 L.Ed. 1057, 1074; See also, In re Palliser, 136 U.S. 257 [267, 10 S.Ct. 1034] 1037, 34 L.Ed. 514, 518. We think the Sixth Amendment applies to interstate criminal jurisdiction with the same force and effect. * * * ”

We adopt the foregoing analysis and find no constitutional impediment to the venue and jurisdiction of the trial court to try Beuke in Hamilton County on the charges of aggravated robbery and attempted aggravated murder of Graham. The seventeenth proposition of law is overruled.

D

In his eighteenth proposition of law, Beuke baldly asserts, without support, that insufficient evidence supports the “course of conduct” and aggravated robbery specifications attached to the count charging him with the aggravated murder of Craig. He concludes that his death sentence must therefore be set aside as the result of improper consideration of these specifications. The contention is without support in the record. The evidence supports the jury's verdicts on each specification indicating a unanimous belief that the specifications were proven beyond a reasonable doubt. The lower courts concur with this conclusion, as does this court. The eighteenth proposition of law is overruled. Without further analysis, we find that the nineteenth proposition of law, predicated upon the success of the seventeenth or eighteenth proposition of law, consequently also fails.

E

In his final proposition of law, Beuke urges that the Clermont County Prosecutor's office investigator, Thorold Todd, was a lay witness and, therefore, the trial court committed prejudicial error when it admitted his opinion testimony as to the manner and sequence in which murder victim Craig was shot. Todd opined that Craig was first shot in the right side of his chest while situated in the driver's seat of his vehicle, was shot again behind his right ear when he fell forward, was dragged from his car, and finally was shot between the eyes.

The prosecution contends that Todd testified as an expert. Under Evid.R. 702, an expert may be qualified by knowledge, skill, experience, training, or education to give an opinion which will assist the jury to understand the evidence and determine a fact at issue. Although Todd has no degree, his professional experience and training in collecting and preserving evidence was such as to permit the trial court to qualify him as an expert. Todd's opinions were based on his personal observations of the crime scene, Craig's wounds, and Craig's automobile as required by Evid.R. 703. We find no error in the admission of the challenged opinions. Defendant's twentieth proposition of law is overruled.

III

<We now undertake the independent weighing process required by R.C. 2929.05(A) to determine whether the aggravating circumstances of which the defendant was found guilty outweigh the mitigating factors beyond a reasonable doubt. The aggravating circumstances of which Beuke was found guilty are: "* * * [T]hat the offense was committed as part of a course of conduct involving the purposeful killing of Robert S. Craig and the attempt to kill Gregory Wahoff and Bruce Graham and the said Michael F. Beuke was the principal offender in the commission of aggravated murder alleged in Count VII, and the said Michael F. Beuke was the principal offender in the commission of attempted aggravated murders alleged in Count I and Count IV hereof as specified in Section 2929.04(A)(5) of the Ohio Revised Code. * * * [T]hat the offense was committed while the said Michael F. Beuke was committing or attempting to commit the offense of aggravated robbery as defined in Section 2911.01 of the Ohio Revised Code and the said Michael F. Beuke was the principal offender in the commission of the aggravated murder alleged in Count VII hereof, as specified in Section 2929.04(A)(7) of the Ohio Revised Code.”

In support of the countervailing mitigating factors of R.C. 2929.04(B), Beuke presented his parents as witnesses at the penalty phase of this proceeding. Herman Beuke, the defendant's father, testified as to the defendant's religious and community activities. Herman testified that from age eight to seventeen the defendant helped him serve mass at their church; that, through age eighteen, the defendant had been active for a time as a Webelos leader in the Cub Scouts; and that his son helped him with his work for the church-affiliated St. Vincent DePaul stores.

Herman also identified numerous photos and a newspaper clipping of his son which were placed in evidence. Herman explained that the clipping involved a Christmastime story about the defendant who, then three or four years old, brought a birthday cake to the crib displayed at their cathedral. Marie J. Beuke, the defendant's mother, also testified as to the defendant's religious upbringing, and related his fondness for animals. She indicated that the defendant was an only child, and that the family was of very modest means.

According to the trial court, further evidence in mitigation included a pre-sentence investigation report, in which the defendant expressed remorse for his crimes. The defendant's prior criminal record consisted of four criminal convictions since May 1980. Beuke was twenty-one at the time of the offenses at issue here.

Of the mitigating factors listed in R.C. 2929.04(B), FN3 we find that factors (1), (2), (3), and (6) do not apply upon the evidence presented. Factor (4), “[t]he youth of the offender,” although considered as mitigating, cannot, alone, excuse the course of conduct undertaken by the defendant. Absent evidence demonstrating that it should weigh heavily in the balance, we grant it very little weight. State v. Byrd, supra, 32 Ohio St.3d at 93, 512 N.E.2d at 625.

FN3. R.C. 2929.04(B) states, in pertinent part: * * * [T]he 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, and all of the following factors: (1) Whether the victim of the offense induced or facilitated it. (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (4) The youth of the offender; (5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”

Factor (5) is “[t]he offender's lack of a significant history of prior criminal convictions and delinquency adjudications.” Other than a demonstrated absence of prior crimes of violence, Beuke's record of criminal convictions carries very little weight in mitigation. State v. Stumpf, supra, paragraph two of the syllabus; State v. Steffen, supra, paragraph two of the syllabus.

With regard to factor (7), we have considered the defendant's background of religious and community activities and family circumstances. We perceive a manifest tenderness at an early age. However, the nature and circumstances of the offenses herein reflect nothing of this quality to mitigate his sentence. Id. We find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. Accordingly, upon independent review, we uphold the sentence of death.

IV

Our final responsibility is to review the proportionality of this death sentence in light of other capital cases which have been reviewed by this court. State v. Steffen, supra, paragraph one of the syllabus. Comparison with other cases in which the death penalty has been upheld leads us to conclude that the sentence imposed upon the defendant is neither excessive, disproportionate, nor inappropriate.

The death sentence has been upheld in similar cases involving aggravated robbery specifications under R.C. 2929.04(A)(7): State v. Post, supra; State v. Jester (1987), 32 Ohio St.3d 147, 512 N.E.2d 962; State v. Byrd, supra; State v. Scott, supra; State v. Barnes (1986), 25 Ohio St.3d 203, 25 OBR 266, 495 N.E.2d 922; State v. Williams, supra; State v. Martin, supra; State v. Jenkins, supra; and in cases involving course-of-conduct specifications under R.C. 2929.04(A)(5); State v. Spisak (1988), 36 Ohio St.3d 80, 521 N.E.2d 800; State v. Poindexter, supra; State v. Brooks (1986), 25 Ohio St.3d 144, 25 OBR 190, 495 N.E.2d 407. In the former group of cases, victims were murdered during the course of an aggravated robbery. In the latter cases, the course of conduct involved the murder or attempted murder of two or more persons.

This case involves a particularly insidious and cold-blooded plan carried out by the defendant to victimize, murder, and attempt to murder people who had accepted his requests for assistance. The victims were random and the motive unknown. Both course-of-conduct and aggravated robbery specifications were proven beyond a reasonable doubt. In light of prior similar cases in which the death penalty has been imposed and the facts presented here, we find the sentence of death neither excessive, disproportionate, nor inappropriate. Accordingly, we affirm the defendant's convictions and sentence of death. The judgment of the court of appeals is affirmed.

Judgment affirmed. SWEENEY, LOCHER, HOLMES, DOUGLAS and HERBERT R. BROWN, JJ., concur.

WRIGHT, J., dissents in part and concurs in part.

WRIGHT, Justice, dissenting in part and concurring in part.

Once again, we are faced with a capital case in which untoward prosecutorial zeal at the sentencing stage was so pervasive that it deprived a defendant of fundamental due process of law and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. Therefore, I must respectfully dissent.

I

While isolated instances of prosecutorial misconduct or overzealousness may be tolerated in many circumstances and indeed prove “harmless,” there comes a point where the cumulative effect of improper remarks and of untoward conduct by the state constitutes reversible error. Such is the case here. As was stated in State v. Liberatore (1982), 69 Ohio St.2d 583, 589, 23 O.O.3d 489, 493, 433 N.E.2d 561, 566:

“Although the prosecution is entitled to a certain degree of latitude in summation, the prosecutorial blunders in this case are too extensive to be excused. Here we do not have simply a brief prosecutorial lapse, but a whole series of instances of misconduct. Indeed, the prosecution presented a textbook example of what a closing argument should not be.”

The very essence of our criminal justice system is that regardless of the heinousness of the crime charged, the apparent guilt of the offender, or the station in life which he occupies, every individual is entitled to a fair trial by an impartial jury. Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751; Groppi v. Wisconsin (1971), 400 U.S. 505, 509, 91 S.Ct. 490, 492, 27 L.Ed.2d 571. Similarly, “[t]he failure to accord an accused a fair hearing violates even the minimal standards of due process.” Id. Despite the fact that the defendant in the case at bar did in fact commit an abominable and highly publicized crime, this should in no way diminish-indeed, it should command-defendant's right to a fair trial, whether in the guilt or sentencing stage.

II

The prejudicial statements made by the prosecution in this case fall into four main categories, each of which will be discussed separately below.

A

The prosecution urged the jury to recommend the death penalty to meet public demand and to make an example of the accused. The prosecution told the jury that it should “[m]ake a message ring out. Criminals and potential criminals in this community, we won't tolerate this. It is a deterrent.” Later, the prosecution asked the jury to send “ * * * a message of justice, to the law-abiding people in this community. * * * [T]he only way they can be satisfied, to feel that justice has been done, is if capital punishment is measured out in a certain specific situation.”

We have held that “[a] closing argument that goes beyond the record may constitute prejudicial error, * * * particularly where the remarks call for the jury to convict to meet a public demand.” State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17 O.O.3d 92, 96-97, 407 N.E.2d 1268, 1273. Likewise, in State v. Cloud (1960), 112 Ohio App. 208, 217, 14 O.O.2d 132, 136, 168 N.E.2d 761, 767, Judge Kovachy aptly stated: “Arguments of counsel in the trial of a lawsuit are permitted for the sole purpose of aiding the jury in analyzing the evidence and thus assisting it in determining the facts of the case. Arguments made to incite a jury to convict to meet a public demand are inimical to the basic rights of a defendant, since they prevent him from having a fair and impartial trial to which he is entitled under the law. * * * ” See, also, State v. Agner (1972), 30 Ohio App.2d 96, 59 O.O.2d 208, 283 N.E.2d 443.

B

The prosecution argued that the jury should recommend the death penalty out of sympathy for the victims and their families, including those victims who were not killed and for crimes for which the death penalty cannot be imposed. FN4

FN4. The following argument was made by the prosecutor: “If you want to start feeling bad ladies and gentlemen, if you want to start feeling sympathy, if you want to start talking about whether or not there is anything here that is mitigating about the defendant's actions, if you want your answer whether or not there is any mitigation, think about Mr. Wahoff, first of all, and his little babies. If you want to start feeling sorry for the defendant when you look at those little pictures, that little boy who isn't here anymore, think about Mr. Wahoff and his little girl. “ * * * “ * * * His little girl, who[m] he will never dance with because he is paralyzed. “Think about his little boy that he talked about. He will never run with that little boy. He will never play baseball. “Why? Because of the 21-year old man sitting before you, not a Cub Scout, but a 21-year old man who ruined his life, and there he sits, paralyzed. And he will never be able to dance with that little girl when she goes to high school. He will never play ball with that little boy. “If you want to feel bad, feel bad for him and then your answer is, there is nothing mitigating about what you heard this morning. “And think about the family of Robert Craig, and Mrs. Craig who doesn't have a husband. Think about how he was laying [ sic ] out on the side of the road, and took time to forgive this man. And what did he get? He shot him right between the eyes and killed him. “And now he has got a little boy at home who doesn't have a dad. And I brought pictures in of him, ladies and gentlemen. “ * * * “ * * * I brought pictures in of him. I am sure you would think he was cute, too. “Except he is real. He is still here. That little boy is not in the past. He is not part of that lost world. He is here. It is real for him. He doesn't have a daddy. “And Robert Craig's little daughter. I could have brought pictures of her in too. It is not the past for her. It is real. She is here. And what about, ladies and gentlemen, Robert Craig's newborn son, who was born just a few weeks ago? I will bet he is cute, too? “ * * * “ * * * He is cute, too. And just stop a second. He will never, he will never see his father. “And Mrs. Craig will never have her husband. And then ask if there is anything mitigating about this case.” In State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 135, 239 N.E.2d 65, 69-70, we held that “ ‘[i]n most cases evidence concerning the family left by the deceased is inadmissible.’ * * * Such evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused and the penalty to be imposed. The principal reason for the prejudicial effect is that it serves to inflame the passion of the jury with evidence collateral to the principal issue at bar. * * * ” This observation is particularly appropriate in the sentencing stage of a capital case.

In Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, the United States Supreme Court held that the introduction of a victim-impact statement, which describes the effect of a crime on the victim and his family, at the sentencing phase of a capital murder trial is absolutely prohibited. I cannot agree with today's majority that the prosecution's argument in this case concerning the impact of the crime on the victims and their families “differs greatly” from the victim-impact statement considered by the jury in Booth. I reject the notion that the Booth decision should read as narrowly as the majority suggests. I believe that statements concerning the impact of a crime on victims or their families-regardless of the form in which they appear or who relates them-are prejudicial and totally irrelevant to the sentencing process. As the court stated in Booth, supra, at ----, 107 S.Ct. at 2536, 96 L.Ed.2d at 452.

“One can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. As we have noted, any decision to impose the death sentence must ‘be, and appear to be, based on reason rather than caprice or emotion.’ * * * The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.”

C

The prosecution made other inflammatory and irrelevant comments that appear were designed to incite passion in the jurors and instill prejudice against the defendant. Notorious cases such as this one rigorously test our constitutional framework and often create an atmosphere conducive to abuse by the state. As Judge Jerome Frank stated in what has become a classic dissent:

“A keen observer has said that ‘next to perjury, prejudice is the main cause of miscarriages of justice.’ If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice. Law suits, do what we will, are hazardous: A missing witness, a lost document-these and numerous other fortuitous factors may result in a man's losing his life, liberty or property unjustly. When the government puts a citizen to the hazards of a criminal jury trial, a government attorney should not be allowed to increase these hazards unfairly.” United States v. Antonelli Fireworks Co. (C.A.2, 1946), 155 F.2d 631, 659.

Among the inflammatory statements made by the prosecution in this case were the following:

“If there ever was a case for a verdict of death and for the penalty of death, it is this case. If there ever was a case that fits the specifications more closely to a course of criminal conduct, shooting, killing people, it is this case right here. You think about the past 10 years, the kind of crimes that have been committed in this community, this crime. * * * This crime stands out in your mind as being a terrible act, something that just can't be forgotten by the members of this community. * * * It is like when you go to the doctor and you have got a pain. He takes a look at you and he tells you you have got cancer. There are two things we can do. We can radically proceed through an operation to remove that cancer. * * * Or we can give you some other form of treatment. * * * But there is no guarantee it is not going to kick back up again and spread. * * * Are you going to tell that doctor to go ahead and give me that treatment and I will take my chances? Or do you want to say, ‘Doc, no, it is going to hurt me. It is not going to be an easy thing to do. Cut it out, because I want to be sure, Doc, Cut it out,’ I will say. And for every story they can tell you about a man in the tower, or a mistake in judgment some place, I can bring in five killers on parole, that kill again.”

These are just a few, and merely representative, of the improper and inflammatory comments made by the prosecution during closing argument in the sentencing stage of this case. These statements bear no relevance to the issue of guilt or innocence or whether mitigating factors were present, but accurately reflect the tenor of the prosecution's entire argument-an argument designed to incite passion and prejudice against the defendant and evoke sympathy for the victims and survivors from the jury.

D

For the reasons I set forth in State v. Williams (1986), 23 Ohio St.3d 16, 32-35, 23 OBR 13, 28-30, 490 N.E.2d 906, 920-922 (Wright, J., dissenting), I believe that the prosecution's closing remarks-as well as the jury instructions by the trial judge-that a death sentence recommendation by the jury would not be final or binding are prohibited in light of Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231.

In this case, the prosecution told the jury: “When you recommend the sentence of death, you don't sentence the defendant to die, but, rather, you recommend the sentence, and then Judge Nadel will then review the facts and determine what the sentence will be. And Judge Nadel can either sentence the defendant to death, or he can give the defendant a term of life in prison, either parole in 20 years or parole in 30 years. But by recommending death, you don't sentence the defendant to die. You give the judge the opportunity to then determine what the sentence would be.” In addition, the trial court told the jury: “You must understand * * * that a jury recommendation to the Court that the death penalty be imposed is just that, a recommendation, and is not binding upon the Court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the Court follows certain additional procedures required by the laws of this State. “Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the defendant, Michael F. Beuke, will actually be sentenced to death or to life imprisonment.”

I believe that such statements, which allow the jury to shift its sense of responsibility for imposition of the death penalty, are constitutionally impermissible, as discussed in State v. Williams, supra.

III

For the foregoing reasons, I do not think that the jury's discretion to impose the death sentence in this case was “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia (1976), 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859. Indeed, I believe the death sentence imposed in this case is based on considerations that are “constitutionally impermissible or totally irrelevant to the sentencing process.” Zant v. Stephens (1983), 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235. Therefore, I must respectfully dissent from the penalty imposed, but would affirm appellant's conviction and remand for resentencing.

State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (Ohio App. 1998). (Postconviction Relief)

Following affirmance, 38 Ohio St.3d 29, 526 N.E.2d 274, of judgment convicting defendant of aggravated murder and other offenses and imposing death sentence, defendant petitioned for postconviction relief. The Court of Common Pleas denied that petition, and the Court of Appeals, Hamilton County, affirmed. Defendant filed second petition for postconviction relief. The Court of Common Pleas declined to hear petition, and defendant appealed. The Court of Appeals, Hamilton County, held that: (1) newly discovered evidence from FBI file, while tending to impeach prosecution witnesses, was insufficient to invoke trial court's jurisdiction to entertain a second postconviction petition; (2) defendant failed to show that medical evidence of his alleged mental disorders could not have been discovered earlier; and (3) newly discovered documents that failed to mention an inculpatory statement used at trial likewise did not invoke trial court's jurisdiction. Judgment affirmed.

PER CURIAM.

Defendant-appellant, Michael Beuke, appeals the judgment of the Hamilton County Court of Common Pleas declining to hear his petition for postconviction relief pursuant to R.C. 2953.21 and 2953.23. For the reasons that follow, we affirm the trial court's judgment.

In July 1983, Beuke was convicted of one count of aggravated murder, two counts of attempted aggravated murder, three counts of kidnapping, and one count of carrying a concealed weapon. The trial court imposed a sentence of death with respect to the aggravated murder charge. This court upheld Beuke's convictions on direct appeal.FN1 The Supreme Court of Ohio also upheld the convictions, and the Supreme Court of the United States denied Beuke's petition for a writ of certiorari.FN2

FN1. State v. Bueke (Mar. 28, 1986), Hamilton App. No. C-830829, unreported, 1986 WL 3750. FN2. State v. Beuke (1988), 38 Ohio St.3d 29, 526 N.E.2d 274, certiorari denied sub nom. Beuke v. Ohio (1989), 489 U.S. 1071, 109 S.Ct. 1356, 103 L.Ed.2d 823, rehearing denied (1989), 492 U.S. 927, 109 S.Ct. 3268, 106 L.Ed.2d 612.

In November 1989, Beuke filed a petition for postconviction relief with the trial court. The court denied the requested relief, and this court again affirmed the trial court's judgment. State v. Beuke (Aug. 14, 1991), Hamilton App. No. C-900718, unreported, 1991 WL 155219, jurisdictional motion overruled (1992), 62 Ohio St.3d 1496, 583 N.E.2d 968, rehearing denied (1992), 63 Ohio St.3d 1407, 585 N.E.2d 428.

On August 15, 1996, Beuke filed another petition for postconviction relief. In the second petition, Beuke set forth sixteen claims for relief. Many of those asserted claims were based upon materials that Beuke received from the Federal Bureau of Investigation pursuant to a Freedom of Information Act request. On August 19, 1997, the trial court journalized an entry in which it declined to hear Beuke's petition pursuant to R.C. 2953.23. The instant appeal followed.

On appeal, Beuke's asserts nine assignments of error.FN4 Having reviewed the record and the parties' briefs, however, we have concluded that the ninth and final assignment of error is dispositive of the majority of the remaining assignments. In the ninth assignment, Beuke claims that the trial court erred in declining to entertain the petition pursuant to R.C. 2953.23. We begin with that assignment of error.

FN4. In Beuke's brief, the assignments of error are misnumbered. We refer to the assignments of error according to their actual progression.

R.C. 2953.23(A) sets forth the circumstances under which the trial court has jurisdiction to entertain a successive petition for postconviction relief. The statute provides as follows: “[A] court may not entertain a petition filed after the expiration of the period prescribed in division (A) [of R.C. 2953.21] or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply: (1) Either of the following applies: (a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. (b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. (2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.”

Construing this statutory language, we have previously indicated that the trial court has no jurisdiction to hear a second or successive petition unless the two prongs of R.C. 2953.23(A) are satisfied.FN5 Given that the satisfaction of the prongs of R.C. 2953.23 is jurisdictional, the trial court's decision with respect to the sufficiency of Beuke's allegations is fundamental to the instant appeal. Because we find no error in the trial court's determination, we uphold its dismissal of the petition. FN5. See State v. Poindexter (Aug. 29, 1997), Hamilton App. No. C-960780, unreported, 1997 WL 605086, jurisdictional motion overruled (1998), 81 Ohio St.3d 1414, 688 N.E.2d 1042, reconsideration denied (1998), 81 Ohio St.3d 1458, 690 N.E.2d 550, and State v. Hill (1998), 129 Ohio App.3d 658, 718 N.E.2d 978. Accord State v. Weese (May 13, 1998), Medina App. Nos. C.A. 2742-M and 2760-M, unreported, 1998 WL 239977, and State v. Kirby (July 7, 1997), Licking App. No. 96 CA 00137, unreported.

The allegations set forth in Beuke's petition can be separated into several general categories. The first category is the material obtained from the FBI. For the purposes of this category of allegations, we assume, without deciding, that Beuke was unavoidably prevented from discovering the facts in time to present them in the earlier proceedings. Thus, we assume for the sake of argument that the first prong of R.C. 2953.23(A) has been met.

The question remaining to be decided with respect to this category of claims, then, is whether Beuke set forth sufficient facts to demonstrate that, but for the omission of this newly discovered evidence, no reasonable factfinder could have found him guilty or eligible for the death sentence.FN6 We hold that the trial court correctly answered this question in the negative.

FN6. We wish to emphasize that R.C. 2953.23(A)(2) requires the proof of a “constitutional error” at trial or sentencing. Here, Beuke asserts that the prosecution withheld the evidence set forth in the petition in violation of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Once again, we assume for the sake of argument that a Brady violation occurred.

In his petition, Beuke alleged that the FBI file contained various pieces of evidence tending to contradict the prosecution's trial evidence. This FBI material included the following: the disclosure that a prosecution witness was paid for his testimony, the fact that the same prosecution witness had been investigated for child pornography and other crimes, inconsistencies in the ballistics evidence adduced at trial, indications that other persons were suspected of the crime of which Beuke was convicted, evidence that allegedly unreliable investigation methods were employed by the police in identifying suspects, inconsistencies in the physical descriptions given for the assailant by prosecution witnesses, and evidence that one of the victims of the offenses was not a model citizen as had been asserted by the prosecution. Beuke contends that this evidence, individually and cumulatively, satisfies the second prong of R.C. 2953.23(A).

We are not persuaded. We first emphasize that the standard for establishing jurisdiction under R.C. 2953.23 is proof by clear and convincing evidence that, but for the alleged errors, no reasonable factfinder could have found the defendant guilty or eligible for the death penalty. This court has noted in the past that evidence in the nature of impeachment material is not sufficient to invoke the trial court's jurisdiction.FN7 Poindexter, supra.

We cannot say that the evidence set forth in the petition was so persuasive that no reasonable factfinder could have found Beuke guilty or eligible for the death penalty. While the asserted evidence may have tended to impeach the state's witnesses and therefore to have been favorable to Beuke, it is not the type of “outcome-altering” evidence contemplated by the statute.FN8 Both this court and the Supreme Court of Ohio have expressly recognized the overwhelming evidence of guilt that was adduced at trial in the case at bar. FN9 Given the strength of the state's case, we cannot say that the trial court erred in finding that the newly asserted evidence was insufficient to call the jury's verdict and the trial court's sentence into question.

FN8. Id. at 5, 1997 WL 605086. FN9. See Bueke, supra, unreported, and Beuke, 38 Ohio St.3d at 40-41, 526 N.E.2d at 286-287.

The next category of evidence submitted by Beuke is medical evidence tending to show that he suffered from various mental disorders. This evidence simply does not satisfy the first prong of R.C. 2953.23(A), requiring that the petitioner be “unavoidably prevented from the discovery of the facts” upon which the claim rests. The record indicates that a complete psychological evaluation was performed and that the results of the evaluation were given to the jury. Therefore, Beuke has failed to demonstrate that he was prevented from discovering the asserted evidence.

The final category of evidence in the petition is evidence that allegedly calls into question the inculpatory statement of Beuke introduced at trial. Beuke asserts that newly discovered documents in which the statement is not mentioned give rise to the inference that the police officer who testified as to the statement committed perjury. We are not persuaded by Beuke's argument. First, we decline to infer perjury on the part of the officer from the omission of the statement from external sources. Further, given the quantum of other evidence adduced by the state, we cannot say that disclosure of this asserted evidence would have resulted in a different outcome.

In sum, we hold that the trial court correctly determined that it did not have jurisdiction to entertain the successive petition. The practical effect of our holding with respect to the ninth assignment of error is that the majority of the assignments of error, relating to other rulings made by the trial court, are rendered without merit. Any decisions or rulings other than the dismissal of the petition were in effect nullities given the trial court's lack of jurisdiction to hear the matter. Accordingly, we hereby overrule the first, second, third, fourth, fifth, and seventh assignments of error.

The remaining assignments of error raise issues concerning the constitutionality of Ohio's death-penalty scheme and the postconviction-relief statutes.FN10 These claims could have been, and in fact were, raised in the prior proceedings and found to be without merit.FN11 Beuke is therefore precluded by the doctrine of res judicata from raising them at this juncture. In any event, Beuke has not presented any persuasive argument on appeal that the contested provisions are unconstitutional. Therefore, the sixth and eight assignments of error are also overruled. The judgment of the trial court is thus affirmed.

FN10. Beuke's constitutional arguments are interspersed with other issues. We address the sixth and eight assignments of error here to the extent that those assignments have not been subsumed in our resolution of the ninth assignment. FN11. The only issue raised by Beuke that he arguably did not raise in the prior proceedings is the constitutionality of applying the time limits of R.C. 2953.21 and 2953.23 to convictions occurring before the enactment of those limits. We rejected this argument on similar facts in State v. Lockridge (July 29, 1998), Hamilton App. No. C-970745, unreported.

Judgment affirmed.

Beuke v. Houk, 537 F.3d 618 (6th Cir. 2008). (Habeas)

Background: Petitioner sought federal habeas corpus relief after his state-court conviction for, inter alia, aggravated murder and his death sentence were upheld on direct appeal, 38 Ohio St.3d 29, 526 N.E.2d 274, and he was denied state postconviction relief, 130 Ohio App.3d 633, 720 N.E.2d 962. The United States District Court for the Southern District of Ohio, James L. Graham, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Alice M. Batchelder, Circuit Judge, held that: (1) petitioner procedurally defaulted claim of ineffective assistance of appellate counsel on federal habeas review; (2) suppressed evidence was not material, as required to establish Brady disclosure violation; (3) denial of petitioner's request to dismiss jurors for cause did not violate his right to impartial jury; (4) petitioner did not establish ineffective assistance of counsel at penalty phase of trial; (5) prosecutor's improper statements during closing arguments in penalty phase of trial did not violate petitioner's due process rights; (6) trial court did not violate petitioner's Eighth Amendment rights by instructing jury not to be influenced by any consideration of sympathy or prejudice when issuing its recommended sentence; and (7) district court was not required to hold evidentiary hearing before denying petition. Affirmed. Martin, Circuit Judge, filed a separate dissenting opinion.

ALICE M. BATCHELDER, Circuit Judge.

Petitioner-Appellant Michael Beuke (“Beuke”) appeals the district court's dismissal of his petition for writ of habeas corpus. On appeal, Beuke raises thirteen issues for our review. Because Beuke filed his habeas petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), we apply pre-AEDPA standards of review. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). After careful consideration, we find Beuke's arguments to be without merit and therefore AFFIRM the judgment of the district court.

I.

On May 14, 1983, Gregory Wahoff offered a ride to Michael Beuke who was walking along the side of the road. Once inside Wahoff's car, Beuke produced a .38 caliber revolver and demanded that Wahoff drive to a rural area in Hamilton County, Ohio. When they reached a sufficiently secluded area, Beuke led Wahoff into the woods; Wahoff eventually charged towards Beuke, attempting to wrestle the gun away from him. After this effort was unsuccessful, Wahoff began to run away, but Beuke shot him in the back, lodging a bullet in his spine and paralyzing him. Beuke then placed the gun against Wahoff's face and fired a second shot, which passed through Wahoff's cheek and lodged in the ground. Wahoff was fully conscious at this point, but he pretended to be dead and apparently succeeded in fooling Beuke, who returned to the car and drove off. Later that day, the police found Wahoff and took him to the hospital for emergency treatment; Wahoff survived Beuke's brutal attack.

A few weeks later, on June 1, 1983, the police discovered Robert Craig's body in a ditch on the side of a rural road in Clermont County, Ohio. Craig worked as a deliveryman supplying fresh fish to local restaurants, and during these travels, he would often offer rides to hitchhikers in the area. Beuke allegedly told Michael J. Cahill, a man with whom Beuke worked, that he killed Craig after Craig picked him up along the side of the highway. An autopsy on Craig's body revealed that he was shot twice in the head and once in the chest, and the police found his abandoned car in the parking lot of a local shopping mall.

Two days later, on June 3, 1983, Bruce Graham saw Beuke walking down the highway with a red gas can in hand. In an effort to help the apparently stranded traveler, Graham offered Beuke a ride to the nearest gas station. As he had done with Wahoff, Beuke brandished a short-barreled revolver and instructed Graham to drive to a rural area. When they arrived at the secluded destination, Beuke immediately fired at Graham. The bullet grazed Graham's forehead, inflicting a minor but bloody wound. After an unsuccessful effort to wrestle the gun from Beuke, Graham sought refuge in a nearby farmhouse. As Graham fled, Beuke fired several shots, one of which struck Graham in the shoulder. After Beuke realized that Graham had escaped to safety, he got into the car and left the scene of the shooting.

Sometime thereafter, Beuke's co-worker, Cahill, told the police what he knew of Beuke's involvement in the “mad hitchhiker” shootings. The police obtained a warrant and searched the car that Beuke had been driving, which he had borrowed from Cahill. The police discovered a cup that had been removed from Wahoff's car, a red gas can, and a blood-stained football jersey. The officers arrested Beuke who, at the time of his arrest, was in possession of a .38 caliber revolver-the same type of weapon he used to shoot Wahoff in the back.

In July 1983, an Ohio grand jury returned a ten-count indictment against Beuke, charging him with one count of aggravated murder, two counts of attempted aggravated murder, three counts of aggravated robbery, three counts of kidnaping, and one count of carrying a concealed weapon. The aggravated murder charge included two specifications, either of which, if proven beyond a reasonable doubt, would make Beuke eligible for the death penalty under Ohio law: (1) committing aggravated murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, and (2) committing aggravated murder in the course of an aggravated robbery.

Beuke's jury trial began on September 19, 1983. The prosecution introduced extensive evidence implicating Beuke in the “mad hitchhiker” shootings, including Wahoff's and Graham's testimony of their nearly fatal encounters with Beuke, evidence linking the bullets extracted from Wahoff and Craig to Beuke's gun, Beuke's fingerprints on Wahoff's and Craig's automobiles, and Cahill's testimony about Beuke's confession. On October 5, 1983, the jury returned a guilty verdict on all ten counts and the two specifications, making Beuke eligible for capital punishment. Beuke's counsel moved for a continuance of the penalty hearing, but the trial court granted only a short, one-day continuance and set the hearing for October 7, 1983. At the penalty hearing, Beuke introduced a presentence report and mitigation testimony from his parents. Unpersuaded by the defense's evidence, the jury found beyond a reasonable doubt that the aggravating factors outweighed the mitigating evidence and recommended that Beuke be sentenced to death. The trial court adopted the jury's recommendation and imposed the death penalty.

Beuke appealed his conviction and sentence to the Ohio First District Court of Appeals,FN1 alleging twenty-six assignments of error. The appellate court denied Beuke's appeal in March 1986. See State v. Bueke, No. C-830829, 1986 WL 3750 (Ohio Ct.App. Mar.26, 1986).FN2 Beuke then appealed to the Supreme Court of Ohio; that appeal was denied in 1988. See State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274 (1988). Beuke next sought a writ of certiorari from the United States Supreme Court, which was denied in 1989. See Beuke v. Ohio, 489 U.S. 1071, 109 S.Ct. 1356, 103 L.Ed.2d 823 (1989).

FN1. In 1995, some ten years after Beuke's conviction and appeal, the Ohio legislature amended Ohio's capital punishment scheme to provide for appeal of capital convictions and sentences from the trial court directly to the Ohio Supreme Court, see Ohio Rev.Code § 2929.05(A), which remains the present practice. Beuke's first appeal, however, was properly directed to, and heard by, the Ohio First District Court of Appeals, pursuant to the law at that time.

FN2. The Ohio appellate court misspelled Beuke's name in the heading of its decision.

In November 1989, having completed his direct appeal, Beuke filed a petition for post-conviction relief in state court, asserting eighty-five errors and requesting an evidentiary hearing. Some of the newly raised claims not asserted on direct appeal included ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and a Brady claim for the withholding of exculpatory evidence. The trial court summarily denied Beuke's petition without an evidentiary hearing. In August 1991, the state appellate court affirmed the trial court's dismissal, see State v. Beuke, No. C-900718, 1991 WL 155219 (Ohio Ct.App. Aug. 14, 1991), and the Ohio Supreme Court denied discretionary review, see State v. Beuke, 62 Ohio St.3d 1496, 583 N.E.2d 968 (1992).

On June 18, 1992, Beuke filed a petition for a writ of habeas corpus with the district court, asserting ninety-two grounds for relief. The state filed a motion to dismiss, contending that Beuke had not exhausted his ineffective assistance of appellate counsel claim because he did not raise that claim in a motion for delayed reconsideration, as was required under the Ohio Supreme Court's decision in State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1209 (1992). On June 30, 1992, perhaps realizing that he had yet to exhaust his state remedies, Beuke filed a motion for delayed consideration with the Ohio First District Court of Appeals, alleging that he was denied effective assistance of appellate counsel. In September 1992, the district court granted the warden's motion and dismissed Beuke's habeas petition without prejudice for failure to exhaust state remedies.

In December 1992, the Ohio First District Court of Appeals denied Beuke's motion for delayed consideration because he failed to demonstrate good cause to justify his untimely filing as required by Ohio's procedural rules. The Ohio Supreme Court affirmed that decision. See State v. Beuke, 67 Ohio St.3d 1500, 622 N.E.2d 649 (1993). In November 1993, Beuke filed with the Ohio Supreme Court a motion for delayed reinstatement of his direct appeal, alleging that he was denied the effective assistance of appellate counsel on direct review. The Ohio Supreme Court denied that motion in March 1994.

In May 1994, Beuke filed a new habeas petition with the district court, which, after it was amended, included eighty-eight grounds for relief. More than a year after he instituted these habeas proceedings, Beuke filed two motions to expand the record, and a petition for leave to conduct discovery. The district court denied all of these motions on October 18, 1995. The very next day-October 19, 1995-the district court denied Beuke's habeas petition, concluding that he had procedurally defaulted fifty-eight of his eighty-eight claims, and rejecting the remainder of his claims as lacking substantive merit. Beuke obtained a certificate of probable cause from the district court, and filed a timely notice of appeal to this court. We granted Beuke's motion to hold this case in abeyance pending the completion of (1) his second attempt at state post-conviction relief and (2) his civil suit seeking documents from the Federal Bureau of Investigation (“FBI”) under the Freedom of Information Act (“FOIA”).

In August 1996, Beuke filed a second petition for post-conviction relief with the state trial court, alleging that newly discovered evidence he had obtained from the FBI showed that the prosecutor had withheld exculpatory evidence in violation of Brady. The trial court rejected Beuke's second petition for post-conviction relief, finding that he had not satisfied the statutory requirements to proceed with a second petition. The appellate court affirmed this denial, see State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1998); the Ohio Supreme Court denied discretionary review, see State v. Beuke, 85 Ohio St.3d 1443, 708 N.E.2d 209 (1999); and the United States Supreme Court declined to review the case, see Beuke v. Ohio, 528 U.S. 934, 120 S.Ct. 336, 145 L.Ed.2d 262 (1999). While Beuke was pursuing his second attempt at post-conviction relief, he simultaneously appealed to the United States District Court for the District of Columbia the FBI's denial of the bulk of his FOIA request. The D.C. District Court denied Beuke's appeal by granting summary judgment to the FBI, and the D.C. Circuit affirmed in May 1998.

In October 1999, Beuke informed this court that he had concluded his collateral litigation, and filed a motion to remand proceedings to the district court so that he could introduce newly acquired evidence and add recently exhausted claims. We denied Beuke's motion to remand in July 2002. Beuke then filed a motion to expand the record to submit documents obtained during his second petition for post-conviction relief and FOIA litigation. We denied this motion to expand the record in April 2006, and the parties thereafter submitted briefs and presented oral arguments on the issues before this court.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), became effective on April 24, 1996. Lindh, 521 U.S. at 322, 117 S.Ct. 2059. The provisions of AEDPA “generally apply only to cases filed after the [AEDPA] became effective.” Id. at 336, 117 S.Ct. 2059. Because Beuke filed his habeas petition in May 1994, prior to AEDPA's effective date, we will apply pre-AEDPA standards of review. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999).

Under the pre-AEDPA standards, we review de novo the district court's disposition of a habeas petition. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir.1997). “Determinations of law, or determinations involving mixed questions of fact and law ... receive de novo review.” Mapes, 171 F.3d at 413. Historical facts as found by the state court “are presumed correct and are rebuttable only by clear and convincing evidence.” Id.

Beuke raises thirteen issues for our review on appeal; two of these issues are closely related constitutional challenges to Ohio's death penalty scheme, and we will address them as a single claim. We accordingly have separated our analysis into twelve sections.

A. Procedural Default of Beuke's Claim for Ineffective Assistance of Appellate Counsel

Beuke first argues that the district court erroneously concluded that he procedurally defaulted fifty-eight of his eighty-eight habeas claims. Federal courts must consider four factors when assessing whether a habeas petitioner has procedurally defaulted his claims. Gonzales v. Elo, 233 F.3d 348, 353 (6th Cir.2000); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Our analysis begins with the first three factors of the procedural default inquiry:

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. Second, the court must decide whether the state courts actually enforced the state procedural sanction. Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim.

Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.2001) (quoting Maupin, 785 F.2d at 138) (alterations omitted). “Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground,” the court must move to the fourth factor. Maupin, 785 F.2d at 138. The fourth factor allows a petitioner to avoid or excuse procedural default if he demonstrates “that there was cause for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.” Id. (quotation omitted).

The district court found that Beuke had procedurally defaulted fifty-eight of his eighty-eight claims. Effectively conceding that the first three factors of procedural default are satisfied, Beuke focuses his argument on the fourth factor, contending that his ineffective assistance of appellate counsel claim establishes the “cause” and “prejudice” to save all of his fifty-eight defaulted claims. We have previously acknowledged that an ineffective-assistance claim “can serve as both cause and prejudice, excusing a procedural default in an underlying substantive claim[.]” Franklin v. Anderson, 434 F.3d 412, 418 (6th Cir.2006). But the ineffective-assistance claim “can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself,” that is, only if the ineffective-assistance claim was not itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 450-51, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (emphasis added); see also Franklin, 434 F.3d at 418. Accordingly, we must consider whether Beuke procedurally defaulted his ineffective-assistance claim.

The district court found that Beuke's ineffective-assistance claim was procedurally defaulted because the Ohio appellate court found that claim to be “waived and barred from further review by [Beuke's] failure to move for reconsideration in the Court of Appeals following the denial of his direct appeal.” In 1989, Beuke completed his direct appeal and instituted his first petition for post-conviction relief, in which he-for the first time-asserted his ineffective-assistance claim. At that time, however, the clearly established precedent in the Ohio First District Court of Appeals mandated that “a claim of ineffective assistance of counsel ... may not be entertained by a trial judge when considering a petition for postconviction relief,” but that the petitioner instead should present this claim directly to the state appellate court in a motion for reconsideration. State v. Rone, No. C-820640, 1983 WL 5172, at *4 (Ohio Ct.App. Aug.31, 1983); see also Hicks v. Collins, 384 F.3d 204, 212 (6th Cir.2004) (“[T]he rule was well settled in the court of appeals where [the petitioner] appealed [i.e., the Ohio First District Court of Appeals] that ineffective appellate counsel claims should be asserted in reconsideration applications”). Over two years later, in February 1992, the Ohio Supreme Court issued its decision in State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1208-09 (1992), which pronounced for the entire state that “claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings,” noting instead that such claims should be raised “in an application for reconsideration in the court of appeals.” Id. at 1208. Four months after the Murnahan decision, and nearly three years after the conclusion of his direct appeal, Beuke filed a motion for reconsideration with the Ohio First District Court of Appeals. Not surprisingly, the court denied the motion, holding that Beuke did not establish good cause for his untimely filing because the law had been well settled in the Ohio First District Court of Appeals that claims of ineffective assistance of appellate counsel must be brought in a motion for reconsideration.

Beuke contends that he cannot be held to have procedurally defaulted this claim because when he filed his motion, the Ohio courts did not have a firmly established and regularly followed procedural rule governing motions for reconsideration. But Beuke's argument ignores the fact that, dating back to 1983, it had been clear to litigants in the Ohio First District Court of Appeals that a criminal defendant must present his ineffective assistance of appellate counsel claim in a motion for reconsideration, not in a petition for post-conviction relief. Turning to our circuit's precedent, Beuke argues that his situation is controlled by Franklin v. Anderson, 434 F.3d 412 (6th Cir.2006). We, however, are convinced that this case is controlled by Hicks v. Collins, 384 F.3d 204 (6th Cir.2004). In Franklin, we held that “at the time [the petitioner] filed his Motion for Delayed Reconsideration ..., the Ohio courts did not have a ‘firmly established and regularly followed’ procedural rule governing the timeliness of such motions.” Franklin, 434 F.3d at 418. We viewed the Ohio Supreme Court's decision in Murnahan as creating ambiguities on the timeliness of motions for reconsideration, id. at 418-19, and because Franklin completed his direct appeal soon after Murnahan-while the Ohio courts were in a period of limbo on this issue-we held that Franklin could not be faulted for filing his motion to reconsider in an untimely manner.

The Franklin decision specifically distinguished Hicks as a case that “applies to a time before Murnahan.” Id. at 420. Unlike the petitioner in Franklin, the petitioner in Hicks completed his direct appeal and instituted his post-conviction relief proceedings prior to the Ohio Supreme Court's decision in Murnahan. Hicks, 384 F.3d at 212. Hicks improperly included his ineffective-assistance claim in his petition for post-conviction relief, and the state trial court dismissed Hick's petition because the Ohio First District Court of Appeals, the district in which Hicks's direct appeal was heard, clearly required an ineffective-assistance claim to be brought in a motion for reconsideration. The Ohio Supreme Court then decided Murnahan, and Hicks waited another seven months after that decision before filing his motion for reconsideration. The Hicks court held that the procedural rule requiring ineffective-assistance claims to be asserted in a timely filed motion for reconsideration “was well settled in the court of appeals where Hicks appealed [i.e. the Ohio First District Court of Appeals]” and therefore “represent[ed] an established adequate and independent state ground” upon which to deny Hicks's claim. Id.

The procedural history in Beuke's case is nearly identical to that of Hicks. Here, as in Hicks, (1) the petitioner improperly asserted his ineffective-assistance claim in his petition for post-conviction relief in the Ohio First District Court of Appeals; (2) the Ohio Supreme Court issued Murnahan after the trial court dismissed the petitioner's request for post-conviction relief; and (3) the petitioner waited several months following Murnahan to file his motion for reconsideration. Therefore we find that this case is controlled by Hicks, and we conclude, based on that precedent, that Beuke procedurally defaulted his ineffective-assistance claim.

In summary, the clearly established rule in the Ohio First District Court of Appeals-adopted long before Beuke concluded his direct appeal-demanded that Beuke present his ineffective-assistance claim in a motion for reconsideration. Beuke initially violated this rule by including his ineffective-assistance claim in his first petition for post-conviction relief. Recognizing his blunder, Beuke filed a motion for reconsideration more than three years after the conclusion of his direct appeal, long after the deadline for filing such a motion had passed. See Ohio App. R. 26. This firmly established and regularly followed procedural rule constitutes an adequate and independent state ground upon which to foreclose judicial review, and Beuke has not established cause and prejudice for his untimely compliance. Accordingly, Beuke, like the petitioner in Hicks, has procedurally defaulted his ineffective assistance of appellate counsel claim and, in turn, cannot use that claim as cause and prejudice to excuse his other defaulted claims. See Edwards, 529 U.S. at 450-51, 120 S.Ct. 1587; Franklin, 434 F.3d at 418. We thus affirm the district court's conclusion that Beuke procedurally defaulted fifty-eight of the eighty-eight claims in his habeas petition.

B. Procedural Default of Beuke's Brady Claim

Beuke next asserts that the prosecution violated his due process rights by failing to provide him with exculpatory evidence as mandated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady requires the prosecution to disclose exculpatory and impeachment evidence that is “material either to guilt or to punishment.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A Brady violation includes three elements: (1) the evidence “must be favorable to the accused, either because it is exculpatory, or because it is impeaching”; (2) the “evidence must have been suppressed by the State, either willfully or inadvertently”; and (3) “prejudice must have ensued.” Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936.

Beuke first raised his Brady claim in his petition for post-conviction relief, alleging that the prosecution failed to produce (1) a list of individuals suspected of involvement in the “mad hitchhiker” shootings and (2) evidence showing that the prosecution's witness, Michael Cahill, changed his story several times. The Ohio appellate court held that this claim was barred by the doctrine of res judicata because it could have been raised on direct appeal and was inappropriate in a post-conviction proceeding. See Beuke, 1991 WL 155219, at *2. Beuke again asserted a Brady claim in his habeas petition, identifying numerous pieces of favorable evidence that the government did not disclose prior to trial, including the list of other suspects and inconsistent statements by Michael Cahill. After filing his petition, Beuke claimed that he had discovered more suppressed evidence, so he filed two motions to expand the record and a motion for leave to conduct further discovery. In these motions, Beuke sought to compel the production of, among other things, all Michael Cahill's recorded statements. The district court denied Beuke's request to expand the record or compel discovery because Beuke should have made this evidence part of the record in state court and, in any event, none of the proffered evidence involved a fact that was material to his conviction. Despite denying Beuke's motions, the district court admitted four documents that Beuke proffered to the court: (1) a transcript of David Pierce's interview with the police (which allegedly contradicted Cahill's testimony), (2) a transcript of Rick Polly's interview with the police (which allegedly contradicted Cahill's testimony), (3) a written summary of an interview between FBI agents and Michael Cahill, and (4) documents showing Robert Craig's criminal history. In a subsequent order, the district court held that Beuke procedurally defaulted his Brady claim because he failed to raise it on direct appeal.

On appeal, Beuke argues that the prosecution's failure to disclose this favorable evidence constitutes the cause and prejudice to excuse the procedural default of his Brady claim. A habeas petitioner can show cause where he failed to raise a constitutional issue because it was “reasonably unknown to him” at the time. Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). Because the State does not directly dispute “cause,” we will assume, without deciding, that the prosecution's withholding of exculpatory or impeachment evidence caused Beuke to default his Brady claim. See Strickler, 527 U.S. at 289, 119 S.Ct. 1936 (finding that the government's withholding of exculpatory evidence, combined with two other factors not present here, were sufficient to constitute cause). Our analysis, therefore, turns on the issue of prejudice. “Prejudice, for purposes of procedural default analysis, requires a showing that the default of the claim not merely created a possibility of prejudice to the defendant, but that it worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions.” Jamison v. Collins, 291 F.3d 380, 388 (6th Cir.2002) (citing United States v. Frady, 456 U.S. 152, 170-71, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Procedural default analysis on the issue of prejudice mirrors Brady materiality analysis, see id., so in determining whether Beuke has procedurally defaulted his Brady claim, we will follow the Supreme Court's example and proceed under a Brady materiality analysis. See Strickler, 527 U.S. at 282, 119 S.Ct. 1936.

When engaging in Brady materiality analysis, we find that “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. “A ‘reasonable probability’ of a different result is ... shown when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting Bagley, 473 U.S. at 678, 105 S.Ct. 3375). In reviewing for materiality, we consider the cumulative effect of the undisclosed evidence, not each item in isolation. Id. at 436, 105 S.Ct. 3375.

On appeal, Beuke presents nine pieces of evidence that he alleges the prosecution failed to disclose in violation of Brady: (1) inconsistent statements that Cahill made to the Hamilton County Sheriff's Department and to the grand jury; FN3 (2) inconsistent statements that Cahill made to the FBI; (3) FBI documents indicating that one of the prosecution's witnesses (who Beuke believes to be Cahill) was a paid informant; (4) FBI documents showing that Cahill was under investigation for child pornography offenses; (5) Rick Polly's statements that contradicted Cahill's testimony; (6) Wahoff's and Graham's initial description of their assailants, neither of which matched Beuke's physical appearance; (7) a list of other criminal suspects investigated by the police; (8) an investigating officer's handwritten notes suggesting that Wahoff was shot by a gun different from that used to shoot Craig and Graham; and (9) records disclosing Craig's criminal history. FN4 Beuke contends that the first five pieces of undisclosed evidence could have impeached the credibility of Michael Cahill, that Wahoff's and Graham's initial description of their assailants could have impeached their in-court identifications of Beuke, and that Craig's criminal history could have contradicted the angelic picture the prosecution painted of the victim. But Beuke does not indicate how the prosecution's failure to disclose the list of other criminal suspects or the investigating officer's handwritten notes caused him prejudice at trial.

FN3. Beuke admits that prior to trial the prosecution provided him with Cahill's statements to the Hamilton County Sheriff's Department and the grand jury, but nevertheless contends a Brady violation because he was given insufficient time to review these materials. “ Brady generally does not apply to delayed disclosure of exculpatory information, but only to a complete failure to disclose.” United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir.1994). “Delay only violates Brady when the delay itself causes prejudice.” Id. at 561. Because we address prejudice in the body of the opinion, we need not address this claim separately.

FN4. Beuke alleges that he obtained many of these documents during his FOIA suit against the FBI, but he fails to provide this court with most of these undisclosed documents. The only alleged Brady documents included in the joint appendix are the transcript of Cahill's interview with the Hamilton County Sheriff's Office, the summary of Cahill's statement to the FBI, Rick Polly's statement contradicting Cahill's testimony, and Craig's arrest record. Beuke says that many of the other documents are contained in the record of his FOIA suit against the FBI or in his second petition for post-conviction relief, but because they are not provided in the joint appendix before this court, we are unable to review them. Moreover, the Brady claim, as presented in Beuke's habeas petition, does not include all nine pieces of evidence he now presents as part of that claim. For example, his habeas petition did not allege that the prosecution withheld (1) the FBI document showing that one of the informants had been paid, (2) the FBI document showing that Michael Cahill was under investigation for child pornography offenses, (3) Wahoff's and Graham's initial descriptions of their assailant, or (4) the investigating officer's handwritten notes. In his brief, Beuke argues that the district court erred in considering only a portion of the allegedly suppressed evidence, rather than the cumulative effect of all the items referenced in his brief. See Castleberry v. Brigano, 349 F.3d 286, 291-92 (6th Cir.2003) (finding that the state appellate court's “item-by-item determination of materiality” was contrary to Supreme Court precedent). We reject this argument because, by failing to notify the district court of all this withheld evidence, Beuke deprived the court of the opportunity to consider its cumulative effect.

We begin with the heart of Beuke's Brady claim, which is the undisclosed evidence that would have been useful for impeaching Michael Cahill. Cahill testified that Beuke told him the story of how he killed Robert Craig, and Cahill relayed the details of this story to the jury. Beuke contends that Cahill's inconsistent statements could have been used to impeach his testimony, but he does not highlight any inconsistencies between Cahill's prior statements and his testimony at trial. Importantly, Beuke does not allege that Cahill presented inconsistent testimony on an important issue of guilt, such as Beuke's confession to killing Craig, but merely that Cahill's inconsistencies on tangential issues-as well as other evidence such as the FBI's investigation of Cahill for child pornography-undermine his overall credibility. We doubt that this evidence would do much to undermine Cahill's testimony relating Beuke's confession. But even if we were to assume that this undisclosed evidence would have tarnished Cahill's credibility beyond repair, it does not negate or even diminish the substantial objective evidence of Beuke's guilt.

Beuke emphasizes the importance of Cahill's testimony by asserting that the prosecution's proof of Craig's murder was dependent upon the credibility of Cahill's testimony. The record discloses a different story, however, because it is clear that the prosecution presented other concrete evidence, in addition to Cahill's testimony, linking Beuke to Craig's murder. This objective evidence includes the officers' discovery of Beuke's fingerprints in Craig's car and forensic evidence indicating that the bullets removed from Craig's body were fired from Beuke's gun. Thus, contrary to Beuke's assertions, Cahill's testimony was not the central piece of evidence holding together an otherwise feeble case, but was merely one piece of a cumulative evidentiary puzzle. We find that because the objective evidence sufficiently linked Beuke to Craig's murder, the suppressed evidence undermining Cahill's credibility does not tend to undermine our confidence in the jury's verdict. See Strickler, 527 U.S. at 293-94, 119 S.Ct. 1936 (refusing to find prejudice where the record contained “considerable forensic and other physical evidence linking petitioner to the crime,” because this objective evidence indicated that the “petitioner would have been convicted ..., even if [the witness] had been severely impeached” by the undisclosed evidence). Cf. Jamison, 291 F.3d at 391 (finding prejudice where, unlike here, the undisclosed evidence would have impeached vital prosecution testimony, leaving only one piece of highly suspect physical evidence upon which to base the conviction); Kyles, 514 U.S. at 441, 115 S.Ct. 1555 (finding Brady materiality satisfied where, unlike here, “ ‘the essence of the State's case’ was the testimony of eyewitnesses”).

The other undisclosed evidence does not bolster Beuke's claim of materiality under Brady. Beuke does not provide this court with Wahoff' s and Graham's initial descriptions of their assailants, and we cannot determine how far afield their descriptions may have been. In any event, we are hard-pressed to believe that an inaccurate sketch or physical description would undermine an in-court identification by victims who had lengthy exposures to their assailant, during which each of them endured a prolonged car ride with a gun pointed directly at him. Moreover, Beuke does not establish, and we do not see, how the outcome of his trial was prejudiced by the prosecution's failure to disclose a list of other criminal suspects, Craig's criminal record, or the investigating officer's handwritten notes. Considering as we must the cumulative effect of all nine pieces of undisclosed evidence, we find that Beuke has failed to establish a “reasonable probability” that the disclosure of this evidence would have altered the result of this proceeding. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Because this evidence is not material under Brady, Beuke cannot show prejudice to excuse procedural default. See Jamison, 291 F.3d at 388. And because Beuke cannot establish prejudice to excuse his procedurally defaulted Brady claim, we affirm the district court's dismissal of that claim.

C. Right to an Impartial Jury-Limitation of Questioning at Voir Dire

Beuke asserts that the state trial court violated his right to an impartial jury by preventing him from asking prospective jurors why they wished to serve on the jury. The trial court prohibited this line of questioning because it unnecessarily “put[ ] the juror on the spot,” and subjected him or her to a potentially embarrassing exchange. Beuke raised this claim on direct appeal, and the Ohio Supreme Court found that the trial court's ruling was “well within its discretion and that the defense otherwise exercised great latitude in examining the jurors for enmity or bias.” Beuke, 526 N.E.2d at 286. The district court similarly found that “[t]rial judges have broad discretion in determining whether questions may be asked during voir dire ” and that the trial court did not commit “constitutional error in restricting these questions.”

The Supreme Court has consistently “stressed the wide discretion granted to the trial court in conducting voir dire ... in ... areas of inquiry that might tend to show juror bias.” Mu'Min v. Virginia, 500 U.S. 415, 427, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991); see also Ham v. South Carolina, 409 U.S. 524, 528, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) (noting the “traditionally broad discretion accorded to the trial judge in conducting voir dire”). In the context of voir dire, the trial court violates the defendant's constitutional rights only when it restricts a “constitutionally compelled” question. See Mu'Min, 500 U.S. at 424-25, 111 S.Ct. 1899. A proffered voir dire question is not constitutionally required simply because it “might be helpful in assessing whether a juror is impartial”; instead a question is constitutionally compelled only where the “failure to ask [that] question [ ] ... render[s] the defendant's trial fundamentally unfair.” Id. at 425-26, 111 S.Ct. 1899. Beuke contends that the trial court violated his constitutional rights because his questions probing the jurors' desires to serve on the jury would have exposed their potential biases. Even though this line of questioning might have helped to expose juror bias, its omission does not result in a fundamentally unfair trial, and therefore it is not constitutionally compelled. See id. Accordingly, we find that the trial court did not commit constitutional error by restricting defense counsel's questioning at voir dire.

D. Right to an Impartial Jury-Refusal to Dismiss Prospective Jurors for Cause

Beuke argues that the state trial court violated his right to an impartial jury by denying his request to strike four prospective jurors for cause. Beuke requested that the court remove the first of these prospective jurors, the wife of one police officer and the mother of another, because her voir dire testimony indicated that she believed a criminal defendant probably did “something” in order to be charged with a crime and that she had a tendency to side with the prosecution and law enforcement over a defendant. When pressed further, however, this woman stated that she could be an impartial juror and acknowledged that she would follow the court's instructions and put aside her tendencies to agree with law enforcement rather than with a suspected criminal. Beuke requested the removal of the second candidate because she stated that if Beuke was convicted, she “would vote for capital punishment” in order to ensure that he would not get parole. But when questioned by the judge, she repeatedly indicated that she would be a fair and impartial juror who followed the court's instructions. Beuke requested that the third candidate be removed for cause because of her statement that she would disregard the court's instructions and vote for the death penalty based upon her belief that any person who intentionally takes the life of another forfeits his own right to live. Upon further questioning, however, she indicated that she would follow the court's instructions in recommending the defendant's sentence. Beuke asked the court to remove the fourth candidate because she expressed her belief that Beuke “must have done something” if the prosecutor was bringing these charges against him; but when questioned by the court, she too acknowledged that she would follow the court's instructions and apply the presumption of innocence. After the court refused to dismiss these four candidates for cause, the prosecution used one of its peremptory challenges to excuse the first, and Beuke used three of his twelve peremptory challenges to remove the other three.

Beuke contends that the trial court violated his right to an impartial jury because the court's denial of his request to remove these four prospective jurors for cause forced him to use valuable peremptory challenges to remove them. Even if we were to assume that the trial court should have dismissed these jurors for cause-a conclusion that is severely belied by the record and applicable case law, see Miller v. Francis, 269 F.3d 609, 618-19 (6th Cir.2001) (holding that “the trial court cannot be faulted for not disqualifying for cause a juror who consistently says that she thinks she can be fair”)-there is no legal basis for Beuke's impartial jury claim. “Any claim that the jury was not impartial ... must focus ... on the jurors who ultimately sat” on the jury, not on those dismissed through peremptory challenges. Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Beuke does not challenge the impartiality of any juror who actually sat on the empaneled jury, but only of four prospective jurors who were dismissed through peremptory challenges. Thus, Beuke's only alleged injury is the loss of his peremptory challenges, and it is well settled that the loss of a peremptory challenge does not violate a defendant's constitutional right to an impartial jury because “peremptory challenges are not of constitutional dimension.” Id. at 88, 108 S.Ct. 2273 (citing Gray v. Mississippi, 481 U.S. 648, 663, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987)); accord United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). We accordingly reject Beuke's challenge to the trial court's denial of his request to dismiss prospective jurors for cause because he “cured” this alleged error when he removed those jurors with his peremptory challenges. See Ross, 487 U.S. at 88, 108 S.Ct. 2273; Bowling v. Parker, 344 F.3d 487, 521 (6th Cir.2003).

E. Right to an Impartial Jury-Dismissal of Prospective Jurors

Further pressing the impartial jury claim, Beuke next contends that he was denied this right when the trial court improperly excused six prospective jurors who expressed any opposition to the death penalty. “[A] juror who in no case would vote for capital punishment, regardless of his or her instructions, ... must be removed for cause.” Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “[T]he proper standard for determining when a prospective juror may be excluded for cause because of his or her 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 his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quotations omitted). “[T]his standard ... does not require that a juror's bias be proved with ‘unmistakable clarity’ ” because such an exacting standard does not comport with the realities of voir dire questioning. Id. at 424-25, 105 S.Ct. 844. A state court trial judge's conclusion that a prospective capital-sentencing juror should be excluded for cause because of his views on the death penalty is a finding of fact entitled to a presumption of correctness from this court on federal habeas review. Id. at 428-29, 105 S.Ct. 844.

Beuke asserts that the trial court improperly removed six prospective jurors. The first two indicated that they would not impose the death penalty under any circumstances because it conflicted with their religious beliefs. The third similarly stated that he could not impose the death penalty under any circumstances, and the fourth indicated that she did not “believe” she could impose the death penalty even if the facts and law warranted such punishment. Unlike the others, the fifth and sixth were slightly less adamant in their opposition to the death penalty. The fifth initially stated that she did not “think” she could impose the death penalty even if required by the law and facts. When pressed further, however, she indicated that she would “try” to follow the law and impose the death penalty if warranted by the law, but ultimately affirmed that she could not agree to a verdict recommending death. The sixth candidate's testimony was similarly inconsistent. Although at one point she stated that there may be a proper case where the death penalty would be warranted, she eventually attested to her unalterable opposition to a sentence of death.

After reviewing the voir dire testimony in the record, we find no constitutional error in the trial court's dismissal of these six prospective jurors. We find that each of the first four candidates stated unequivocally that he or she would not impose death under any circumstances, and the law requires that such jurors-with unshakable opposition to the death penalty-be removed for cause. See Morgan, 504 U.S. at 728, 112 S.Ct. 2222. And although the fifth and sixth candidates both waffled and hedged when discussing their willingness and ability to impose the death penalty, ultimately both stated that they would be unable to join a verdict that imposed the death penalty even if mandated by law, and were therefore unfit for service on a jury charged with the burden of considering capital punishment. See Witt, 469 U.S. at 424, 105 S.Ct. 844. Especially in light of the deference afforded to the trial judge's conclusions on these issues, see Bowling, 344 F.3d at 519, we find no constitutional error in the trial court's dismissal of these prospective jurors.

F. Due Process-The Testimony of the Murder Victim's Wife at the Guilt Phase of Trial

Beuke next alleges that the testimony of Robert Craig's wife at the guilt phase of trial violated his due process rights. Mrs. Craig testified that her husband had picked up two hitchhikers and provided them with a place to sleep just three weeks prior to his murder. She also stated that she and her husband had three children, one of whom was born shortly before trial and was given the name Robert, in memory of his father. Beuke objected to this testimony and moved for a mistrial; the court overruled the objection and denied the motion for a mistrial.FN5

FN5. As part of this due process claim, Beuke also objects to the prosecutor's references to Mrs. Craig's testimony during his closing argument. Beuke argues that the prosecutor's use of this evidence during closing argument violated his due process rights at the guilt phase of trial; this argument is misplaced, however, because the closing argument to which Beuke refers occurred at the conclusion of the penalty phase. Therefore, when resolving this claim, which challenges the constitutionality of the guilt phase of Beuke's trial, we will ignore the prosecutor's references to Mrs. Craig's testimony, which occurred at the penalty phase. Later in the opinion, however, when evaluating Beuke's claim of prosecutorial misconduct at the penalty phase, we will consider the propriety of the prosecutor's references to victim-impact evidence, including the testimony of Mrs. Craig.

On appeal, Beuke argues that Mrs. Craig's testimony violated his due process rights because it was irrelevant and highly inflammatory. We are severely limited in our ability to grant federal habeas relief because of a state court evidentiary ruling: we can grant relief only in the limited circumstances where the state court's decision was “so fundamentally unfair as to violate the petitioner's due process rights.” Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir.2001). The categories of infractions that violate “fundamental fairness” have been defined “very narrowly.” Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Beuke himself admits that the constitution “erects no per se bar” to “the admission of victim impact evidence,” see Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); see also Hicks, 384 F.3d at 222 (noting our approval of “victim impact evidence during the guilt phase ... as an extension of Payne”), and he concedes that we can find a constitutional violation only if Mrs. Craig's testimony resulted in a “fundamentally unfair” trial, see Payne, 501 U.S. at 825, 111 S.Ct. 2597; Byrd v. Collins, 209 F.3d 486, 532-33 (6th Cir.2000). Beuke has provided no directly applicable legal authority, but only bald, conclusory allegations that Mrs. Craig's testimony was irrelevant and highly inflammatory. We find no merit in this argument.

Mrs. Craig's testimony may be divided into two categories: (1) testimony about her husband's history of picking up hitchhikers and (2) testimony about her children. Contrary to Beuke's assertions, Mrs. Craig's testimony about her husband's history of picking up hitchhikers is entirely relevant when considering-and indeed probative for establishing-whether he offered Beuke a ride on the day of his murder. We certainly find no error-let alone a constitutional error-in admitting this testimony. Mrs. Craig's testimony about her children, while perhaps not relevant to the issue of guilt, was minimal and largely insignificant. In less than one-half page of transcript testimony, Mrs. Craig told the jury that she had three children, provided their respective ages, and stated the name of her newborn child, Robert. Admission of these three brief statements about the victim's family was not constitutionally improper, see Hicks, 384 F.3d at 222 (approving the use of victim-impact evidence at the guilt phase of trial); Byrd, 209 F.3d at 532 (same), because it was not inflammatory and did not otherwise create a fundamentally unfair trial. We thus conclude that Mrs. Craig's brief testimony did not violate Beuke's due process rights.

G. Denial of Beuke's Requests for a Continuance prior to the Penalty Phase

Beuke argues that the trial court violated his constitutional rights by denying his motion for a continuance prior to the penalty phase.FN6 The jury returned its guilty verdict on Wednesday, October 5, 1983, at 9:23 p.m. Just minutes later, the judge held a sidebar and asked Beuke's attorneys if they could be ready for a sentencing hearing by the following afternoon. Defense counsel responded, “Come on ..., [t]here is no way in the world.” The judge proceeded to set the sentencing hearing for the morning of Friday, October 7, 1983, and told defense counsel to request any necessary materials, such as a presentence investigation, by early the next morning. In response, defense counsel opined that this quick turnaround was “a little ridiculous under the circumstances.” After the judge sequestered the jury, defense counsel reiterated their belief that the Friday morning sentencing hearing did not provide “adequate time to prepare.” The court, however, ordered all the attorneys to return the next morning so that defense counsel could make a formal request for a presentence investigation.

FN6. Even though Beuke alleges a “constitutional violation” resulting from the district court's denial of his request for a continuance, he does not indicate which constitutional provision is violated under these circumstances. We will assume that he is alleging a violation of his Sixth Amendment right to counsel, see Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), although we have previously construed similar claims as alleging a due process violation, see Powell v. Collins, 332 F.3d 376, 396 (6th Cir.2003). Regardless of which provision we apply, we do not find a constitutional violation warranting habeas relief.

At the Thursday morning hearing, defense counsel stated that they were “not waiving [their] objection that ... there ha[d] not been sufficient time to make adequate determinations or to prepare to come to th[e] [sentencing] hearing.” Defense counsel then presented a formal request for a presentence investigation and psychiatric evaluation, and indicated that Beuke's parents would be the only two mitigation witnesses called at sentencing.

At the beginning of the Friday morning sentencing hearing, defense counsel reiterated their objection to the quick turnaround between the guilt and penalty phases, noting that “there hasn't been sufficient time.” Defense counsel then objected to having only one hour to review the presentence investigation and psychiatric evaluation, whereupon the court provided a thirty-minute recess so counsel could further review those reports.

A trial court's denial of a continuance rises to the level of a constitutional violation only where there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay.’ ” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)); United States v. Moreno, 933 F.2d 362, 371 (6th Cir.1991). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar, 376 U.S. at 589, 84 S.Ct. 841. To obtain habeas relief, it is not sufficient for the petitioner to show that the trial court arbitrarily denied the continuance request; he “must also show that the denial of a continuance actually prejudiced his ... defense.” Burton v. Renico, 391 F.3d 764, 772 (6th Cir.2004). “Actual prejudice may be demonstrated by showing that additional time would have made relevant witnesses available or otherwise [would have benefited] the defense.” Powell v. Collins, 332 F.3d 376, 396 (6th Cir.2003).

We reject Beuke's claim that the trial court violated his constitutional rights by denying his request for a continuance. Beuke has not demonstrated that he made a “justifiable request” for a continuance, see Slappy, 461 U.S. at 11-12, 103 S.Ct. 1610; his counsel did not state any particular reason why the trial court should grant the continuance, asserting only that the court provided “insufficient” or “inadequate” time to prepare and that the judge's timetable was a “little ridiculous under the circumstances.” Such generalized objections do not constitute a justifiable request for a continuance.FN7 While it is true that only thirty-six hours separated the jury's verdict and the commencement of the sentencing hearing, Beuke's attorneys had two-and-a-half months to prepare for the guilt and penalty phases of the trial. And as we address further below, the record does not establish that counsel did not prepare for the penalty phase during that pre-trial period.

FN7. Beuke argues that his case is similar to Powell v. Collins, 332 F.3d 376, 396 (6th Cir.2003), where the court granted habeas relief in part because the trial court denied the petitioner's motion for a continuance. Powell is inapposite because in that case the petitioner expressly requested the continuance “for the purpose of obtaining an additional psychiatric examination for presentation at the mitigation hearing.” Id. In the present case, however, Beuke did not state a particular reason why the court should have granted his continuance, merely stressing that he had “inadequate” or “insufficient” time to prepare.

Beuke's claim additionally fails because he has not established prejudice from the trial court's denial of his request for a continuance. Beuke contends that the trial court deprived him of the opportunity to investigate and present mitigation evidence showing: he did not have many friends; he held a low opinion of himself; he had a need to prove himself to others; he was a haphazard follower; he exhibited extreme personality traits; he frequently used drugs; he was raised in a strict religious home where he was “always under a microscope”; his family lived frugally; his mother was timid; and his father was domineering. We fail to see how this evidence would have benefited Beuke's mitigation defense and, in any event, the jury received much of this information through the testimony of Beuke's parents, who collectively testified that Beuke's father did not have a “well-paying job,” their family did not have a lot of money, they attended church regularly, and their household was “run on the Ten Commandments.” Mrs. Beuke also told the jury about an incident in Beuke's childhood where he did not get along with other children.FN8 We conclude that Beuke has not shown prejudice resulting from the trial court's denial of his request for a continuance.

FN8. Beuke also contends that, had the trial court granted his request for a continuance, he would have been able to prevent the jury from learning damaging evidence contained in the presentence investigation report. Ohio law, however, expressly mandates that where the defendant requests a presentence investigation, a copy of that report “shall be furnished ... to the trial jury.” Ohio Rev.Code § 2323.03(D)(1). Because Beuke asked the probation department to conduct a presentence investigation, he was required by state law to provide a copy of that report to the jury, and cannot claim prejudice on that basis.

Because Beuke did not articulate a justifiable basis for a continuance, and because he failed to demonstrate prejudice resulting from the denial of his request, we find his claim to be without merit.

H. Ineffective Assistance of Counsel during the Penalty Phase

Beuke argues that his attorneys rendered ineffective assistance during the penalty phase. An ineffective assistance of counsel violation contains two components: (1) counsel's performance must have been deficient and (2) counsel's deficient performance must have prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We begin by considering the deficiency element. “[T]he proper standard for attorney performance is that of reasonably effective assistance” under “prevailing professional norms,” and thus to establish deficient performance, the habeas petitioner must show that “counsel's performance fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. 2052. When engaging in this inquiry, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.

Beuke contends that his counsel rendered deficient performance at the penalty phase by: (1) requesting a presentence investigation, which revealed to the jury some prejudicial information, including his criminal history and victim-impact statements; (2) obtaining an inadequate psychiatric evaluation from the probation department; and (3) presenting an inconsistent closing argument based on a “residual doubt” theory. Beuke first raised these arguments-as bases for his ineffective-assistance claim-in his petition for post-conviction relief, and the state appellate court found that “each of these issues could fairly have been made on direct appeal from Beuke's convictions” and thus each was “barred under the doctrine of res judicata.” Beuke, 1991 WL 155219, at *4. Beuke entirely ignores-and most certainly does not challenge-the state court's finding that Beuke was procedurally barred from asserting these arguments, and we see no basis upon which to disturb the state court's resolution of this issue. We will, therefore, as the district court did, ignore these three bases for Beuke's ineffective-assistance claim.

Beuke next argues that his counsel performed deficiently at the penalty phase by failing to investigate mitigating factors. “[F]ailure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.” Coleman, 244 F.3d at 545; see also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Our circuit's precedent has distinguished between counsel's complete failure to conduct a mitigation investigation, where we are likely to find deficient performance, and counsel's failure to conduct an adequate investigation, where the presumption of reasonable performance is more difficult to overcome:

[T]he cases where this court has granted the writ for failure of counsel to investigate potential mitigating evidence have been limited to those situations in which defense counsel have totally failed to conduct such an investigation. In contrast, if a habeas claim does not involve a failure to investigate but, rather, petitioner's dissatisfaction with the degree of his attorney's investigation, the presumption of reasonableness imposed by Strickland will be hard to overcome.

Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir.2001) (quotation omitted) (emphasis added); see also Moore v. Parker, 425 F.3d 250, 255 (6th Cir.2005). In the present case, defense counsel did not completely fail to conduct an investigation for mitigating evidence. Counsel spoke with Beuke's parents prior to penalty phase of trial (although there is some question as to how much time counsel spent preparing Beuke's parents to testify), and presented his parents' testimony at the sentencing hearing. Defense counsel also asked the probation department to conduct a presentence investigation and a psychiatric evaluation. While these investigatory efforts fall far short of an exhaustive search, they do not qualify as a complete failure to investigate. See Martin v. Mitchell, 280 F.3d 594, 613 (6th Cir.2002) (finding that defense counsel did not completely fail to investigate where there was “limited contact between defense counsel and family members,” “counsel requested a presentence report,” and counsel “elicited the testimony of [petitioner's] mother and grandmother”). Because Beuke's attorneys did not entirely abdicate their duty to investigate for mitigating evidence, we must closely evaluate whether they exhibited specific deficiencies that were unreasonable under prevailing professional standards. See Dickerson v. Bagley, 453 F.3d 690, 701 (6th Cir.2006).

Beuke specifically alleges that his attorneys' performance was deficient because they unreasonably delayed their mitigation investigation until after the jury issued its guilty verdict and thus failed to conduct an adequate mitigation investigation. We will generally find that an attorney has rendered deficient performance if he waits until after a conviction to begin his mitigation investigation. See Greer v. Mitchell, 264 F.3d 663, 676-77 (6th Cir.2001) (finding deficient performance where it “appear[ed] that trial counsel did not begin preparing for the mitigation phase of the trial until after conviction”); Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir.1995) (finding deficient performance where “the lawyers made virtually no attempt to prepare for the sentencing phase of the trial until after the jury returned its verdict of guilty”).

After reviewing all the evidence, we conclude that Beuke has not established that his attorneys waited until after the jury issued its guilty verdict to begin their mitigation investigation. Beuke is apparently asking this court to assume, based primarily on his attorneys' request for a continuance prior to the sentencing hearing, that they did not begin their preparations prior to the jury's conviction. That assumption, however, rests on sheer speculation. The evidence in the record is not clear as to when trial counsel began their mitigation investigation and what that investigation entailed. In their affidavits, Beuke's attorneys both state that they “expend[ed] an extraordinary amount of hours in preparation for trial, the trial itself, and post[-]trial matters, including the preparation for the penalty phase.” While counsel's itemized billable hours sheets expressly identify only the day between the guilt and penalty phases as “preparation for mitigation hearing,” those itemized sheets indicate that many pre-conviction billable hours were spent at the “county jail,” in “conference with Beuke's parents,” “review[ing] psychiatric reports,” and in “review of law and preparation.” Some or all of these activities could have been focused on the mitigation investigation; Beuke has not provided enough evidence to confirm or deny that conclusion. As the habeas petitioner, Beuke has the burden of establishing his counsel's deficient performance, and he has failed to present evidence from which we can find such deficiency. See Carter v. Mitchell, 443 F.3d 517, 531 (6th Cir.2006) (noting that the petitioner “provided no basis for a finding that trial counsel's investigation was unreasonable” because he did not introduce “any statement from trial counsel describing what [counsel] did or did not do in investigating [the petitioner's] background”).

Even if we were to find trial counsel's performance to be deficient, Beuke cannot establish the prejudice prong of his ineffective-assistance claim, which requires him to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). “When a [petitioner] challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Thus, “we reweigh the evidence in aggravation against the totality of available mitigating evidence,” which includes the mitigation evidence that was omitted because of counsel's alleged deficiencies. Harries v. Bell, 417 F.3d 631, 639 (6th Cir.2005). The petitioner “need only show that one juror would have reached a different result to establish prejudice.” Gillard v. Mitchell, 445 F.3d 883, 896 (6th Cir.2006).

A petitioner does not establish prejudice if he shows only that his counsel failed to present “cumulative” mitigation evidence, that is, evidence already presented to the jury. Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006). “[T]o establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.” Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.2005). Beuke contends that he was prejudiced by his counsel's failure to demonstrate the complexities of his life, which include his family's poverty, his oppressive and overprotective parents, his low self-esteem, his history of drug use, and his destructive relationship with Michael Cahill. We find that this undisclosed mitigation evidence mirrors the evidence introduced during the penalty phase. Beuke's father testified about the family's minimal financial resources, indicating that he did not have a well-paying job and that they had very little money. Both parents' testimony was permeated with references to their religious beliefs and activities, and Beuke's mother stated that their household was “run on the Ten Commandments,” suggesting the structured, and perhaps overprotective, nature of Beuke's upbringing. Moreover, the presentence investigation, which was submitted to the jury, disclosed Beuke's history of drug abuse, and thus the jury was aware of this information. Finally, Cahill's testimony at trial indicated that he asked Beuke to participate in a fake bank robbery, which certainly demonstrated Cahill's negative influence on Beuke. See Gillard, 445 F.3d at 896 (noting that the “jury was privy” to evidence introduced during the guilt phase of trial and counsel need not reintroduce it during the sentencing hearing). The presentence investigation also showed the destructive and manipulative nature of Beuke's relationship with Cahill by including Beuke's statements that he committed these offenses for the purpose of obtaining a car to commit a bank robbery with Cahill and that he “wished [he] never would have gotten involved with Michael Cahill.” Because little of Beuke's undisclosed mitigating evidence differs substantially from evidence already presented to the jury, Beuke has failed to show prejudice.

To be sure, some of the undisclosed mitigating evidence was not cumulative-such as evidence of Beuke's low self esteem and the degree of his parent's sheltering. But we find that this non-cumulative evidence is not powerful mitigating evidence that is reasonably likely to have changed the jury's recommendation of death. Evidence that Beuke was raised in a “very orthodox Catholic” home, that he had a “highly structured childhood environment,” that he was “very spoiled,” and that he had “an overwhelming need to be accepted by others” hardly discloses sympathetic details that would soften the jury's impression of him. Instead, this undisclosed evidence portrays the life of a fairly typical adolescent or young adult growing up in “a relatively stable, although imperfect, family environment” surrounded by parents who-while perhaps a little overbearing-have loved, supported, and protected him throughout his life. We find that such evidence would not have elevated the jurors' sympathies for Beuke and thus fails to create a reasonable probability that the jurors-had they been able to consider it-would have altered their recommendation of death. See Carter, 443 F.3d at 531 (finding no prejudice where the proffered mitigating evidence revealed “a relatively stable, although imperfect, family environment” with no evidence of abuse). In contrast, undisclosed mitigating evidence supporting a finding of prejudice usually reveals shocking, disheartening, and utterly disturbing details about the petitioner's upbringing. See, e.g., Wiggins, 539 U.S. at 534-35, 123 S.Ct. 2527 (finding prejudice where the undisclosed mitigating evidence showed that the petitioner was physically abused by his alcoholic mother and sexually molested by his foster parents); Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding prejudice where the undisclosed mitigating evidence consisted of “the graphic description of [the petitioner's] childhood, filled with abuse and privation”); Harries, 417 F.3d at 639 (finding prejudice where the undisclosed mitigating evidence would have shown petitioner's “traumatic childhood,” which included “significant physical abuse” such as being “choked so severely that his eyes hemorrhaged”); Johnson v. Bell, 344 F.3d 567, 574 (6th Cir.2003) (collecting similar cases).

Taking all this into consideration, we conclude by “reweigh[ing] the evidence in aggravation against the totality of available mitigating evidence.” Harries, 417 F.3d at 639. On the aggravation side of the equation, we have the jury's verdict of guilty on the two statutory specifications-(1) committing aggravated murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, and (2) committing aggravated murder in the course of an aggravated robbery-and the cruel and heartless manner in which Beuke committed these offenses. On the mitigation side-after accounting for Beuke's largely cumulative and otherwise unsympathetic evidence-we are left basically where we started. The balance of the aggravation-mitigation scale remains unchanged, and we do not find that presenting this undisclosed mitigating evidence to the jury would have altered the results of these proceedings, see Darden, 477 U.S. at 184, 106 S.Ct. 2464, or that there is a reasonable probability that even one juror, having reviewed this evidence, would have reached a different result. See Gillard, 445 F.3d at 896.

I. Prosecutorial Misconduct-Closing Argument at the Penalty Phase

Beuke contends that the prosecutor's closing argument during the penalty phase violated his due process rights. For the prosecutor's misconduct to violate the defendant's due process rights, it “is not enough that the prosecutors' remarks were undesirable or even universally condemned”; instead those comments must “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor,” because “the aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (quotations omitted). To succeed on this claim, the petitioner must demonstrate that the prosecutor's conduct was both improper and flagrant. Bates v. Bell, 402 F.3d 635, 641 (6th Cir.2005).

We begin by determining whether the prosecutor's comments were improper. Beuke challenges five categories of statements made by the prosecutor during closing argument: (1) statements indicating that the death penalty sends a deterrent message to criminals and a reassuring message to the law-abiding public; (2) statements where the prosecutor allegedly relied on his own personal experience to persuade the jury; (3) statements about the victims of the attempted murders, Wahoff and Graham; (4) statements indicating the prosecutor's personal fear of Beuke; and (5) statements warning the jurors that Beuke could be paroled if he did not receive a death sentence.

We turn first to Beuke's challenge to the prosecutor's statements about the need for the jury to send a deterrent message to criminals and a reassuring message to the public. The prosecutor began his closing argument with broad statements about the death penalty in general, noting that “our society will take a life” in order “to let a message ring out” to “[c]riminals and potential criminals in this community [that] we won't tolerate this.” The prosecutor also stated that in instances where aggravating circumstances sufficiently outweigh mitigating factors, the death penalty sends “a message of justice[ ] to the law-abiding people in the community,” and “[t]he only way [the public] can be satisfied ... is if capital punishment is measured out [.]” Beuke characterizes these statements as urging the jurors to impose the death penalty as part of their civic obligation to deter criminal activity and satisfy the community. This is not a fair characterization of the prosecutor's statements. When considered in context, these statements are general background information on the death penalty and the need to punish guilty people, rather than an impassioned command that the jurors must recommend death based on some amorphous societal obligation. On direct appeal, the Ohio Supreme Court made the same assessment of these statements by acknowledging that “these comments consist[ed] of a general discussion of the death penalty.” Beuke, 526 N.E.2d at 280. We accordingly find that the prosecutor's discussion of background information on the death penalty and the need to punish guilty people-devoid of any overt attempt to incite the passions of the jurors-was not improper under the circumstances. See Byrd, 209 F.3d at 538-39 (noting that the prosecutor's comments were not necessarily improper because he did not “ask the jury to send a message to other potential murderers or robbers,” rather he discussed “the purpose of capital punishment as a way of arguing that the jury should find that these purposes would be served by imposing the death penalty on [p]etitioner”); Hicks, 384 F.3d at 219 (acknowledging that a prosecutor may properly make “general references to the societal need to punish guilty people”).

Beuke next argues that the prosecutor engaged in misconduct by referencing his own personal experience. “It is well-established law that a prosecutor cannot express his personal opinions before the jury.” Bates, 402 F.3d at 644 (quotations omitted). The allegedly offensive comments occurred when the prosecutor stated:

[I]f there ever was a case for the death penalty, it is this case right here.... If there ever was a case that fits the specifications more closely to a course of criminal conduct, shooting, killing people, it is this case right here.... This crime stands out in your mind as being a terrible act, something that just can't be forgotten by the members of this community.

Again Beuke attempts to mischaracterize these statements as an appeal to the prosecutor's personal experience. On the contrary, the prosecutor did not improperly interject his own assessment of the facts or evidence-such as stating, for example, “I have tried several murder cases and find this to be one of the worse,” see United States v. Galloway, 316 F.3d 624, 632-33 (6th Cir.2003) (finding a prosecutor's statements to be improper where he stated, “I have tried several cases myself where we see the [defendant make this argument]”), or stating, “I do not find the defendant's mitigating evidence to be at all credible,” see Bates, 402 F.3d at 644-45 (finding a prosecutor's statements to be improper where he stated, when discussing the testimony of mitigation witnesses, “You don't believe that, and I don't believe it [either]”). Rather, the prosecutor here merely said that because of the stark facts and lack of mitigating evidence, this case was appropriate for the death penalty. Far from relying on his own experience, the prosecutor implored the jurors to determine whether Beuke's “terrible acts” “stand[ ] out” as particularly egregious in their own minds. Because the prosecutor did not appeal to his own personal experience, we do not find these statements to be improper.

Beuke next challenges the prosecutor's numerous references to the victims of the attempted murders, Wahoff and Graham. During his closing argument, the prosecutor discussed the impact of Beuke's actions on all three of the victims: Craig, Wahoff, and Graham. He noted that Wahoff tried to help Beuke by offering him a ride and, in return for his benevolence, was shot in the back and now “sits paralyzed for the rest of his life.” He then told the jury to “think about Mr. Wahoff ... and his little babies” and “[h]is little girl[ ] who he will never dance with because he is paralyzed.” Beuke argues that the prosecutor should not have referred to Wahoff, Graham, or their families because the aggravated murder of Robert Craig, not the attempted murders of Wahoff and Graham, was the only offense relevant at the sentencing hearing. This argument fails to appreciate that Beuke's eligibility for a death sentence depended on the jury's finding that Beuke murdered Craig as part of a course of conduct involving the purposeful attempt to kill two or more persons. See Ohio Rev.Code § 2929.04(A). Beuke's attempted murders of Wahoff and Graham were part of the conduct that rendered him death-penalty eligible under Ohio law, and it was not inappropriate for the prosecution to discuss the impact of Beuke's conduct on those victims and their families. See Payne, 501 U.S. at 827, 111 S.Ct. 2597 (holding that the Constitution “erects no per se bar” to “the admission of victim impact evidence and prosecutorial argument on that subject”).FN9

FN9. To the extent that Beuke is challenging the quantity or pervasiveness of the victim-impact evidence discussed during the prosecutor's closing argument, something that is not at all clear from his brief, we find such an argument to be without merit. Beuke's brief expressly acknowledges that both Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (holding that the introduction of victim-impact evidence “at the sentencing phase of a capital murder trial violates the Eighth Amendment”), and South Carolina v. Gathers, 490 U.S. 805, 811, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) (extending the holding of Booth to prohibit a prosecutor from referencing victim-impact evidence at sentencing), have been explicitly overruled by Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), which held that “the Eighth Amendment erects no per se bar” to “the admission of victim impact evidence and prosecutorial argument on that subject.” Although the Court's decision in Payne removed any per se constitutional bar to the prosecutor's use of victim-impact evidence, we have recognized that excessive or prejudicial references to victim-impact evidence might “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” See Roe v. Baker, 316 F.3d 557, 565-66 (6th Cir.2002); see also Payne, 501 U.S. at 825, 111 S.Ct. 2597 (“In the event [victim-impact] evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”). While the prosecutor in the present case made numerous references to all the victims and their families, we do not find that any of these statements in isolation-or in their cumulative effect-resulted in a fundamentally unfair trial. Many of the statements at issue here are reminiscent of those found in Payne, where the Court upheld the death sentence of the petitioner, who had been convicted of the brutal murder of a mother and her two-year-old child. Id. at 830, 111 S.Ct. 2597. For example, the prosecutor here stated, Wahoff will “never dance with” “[h]is little girl” “because he is paralyzed,” and the prosecutor in Payne similarly said, “[The victim] will never kiss [her son] good night[,] or pat him as he goes off to bed, or hold him and sing him a lullaby.” Id. at 816, 111 S.Ct. 2597. Additionally, the prosecutor here stated, “[Robert Craig] has got a little boy at home who doesn't have a dad,” and the prosecutor in Payne correspondingly said, “[The infant victim's little brother] mourns ... every single day and wants to know where his best little playmate is.” Id. Finally, the prosecutor here conjectured that the families of the victims will one day ask, “What is going to happen to the guy that [committed these crimes]?” And the prosecutor in Payne similarly stated, “Somewhere down the road [the victim's son] is going to grow up ... He is going to want to know what happened. With your verdict, you will provide the answer.” Id. at 815, 111 S.Ct. 2597. We find these cases to be materially indistinguishable, and conclude that Beuke's conviction and sentence must be affirmed.

In contrast, we find that the last two prosecutorial statements challenged by Beuke were improper. At the end of his closing argument, the prosecutor stated that he was “scared to death of [Beuke]” and did not “want him out on the street again.” The prosecutor then concluded by likening Beuke to a “cancer” on society, instructing the jurors that, even though “[i]t is going to hurt quite a bit,” they should “proceed through an operation to remove that cancer.” He also noted that if they chose some lesser treatment, “there is no guarantee [that the cancer] is not going to kick back up again and spread.” Defense counsel objected to these and other statements, but the trial court overruled the objections and instructed the jurors on multiple occasions: “What counsel says to you in closing argument is not evidence. It is not the law. But [he] ... can make reasonable inferences based upon what the evidence is, and you determine what the evidence is.”

“It is well-established law that a prosecutor cannot express his personal opinions before the jury,” Bates, 402 F.3d at 644 (quotations omitted); thus it was improper for the prosecutor to reference his personal fear of Beuke. Moreover, a prosecutor cannot make statements “calculated to incite the passions and prejudices of the jurors,” Gall v. Parker, 231 F.3d 265, 315 (6th Cir.2000), overruled on other grounds as recognized in Bowling, 344 F.3d at 501 n. 3; thus the prosecutor acted improperly by appealing to the juror's fears that Beuke would commit additional crimes if he was eventually released from prison, see Broom, 441 F.3d at 413 (stating that it was improper for the prosecutor to imply that the petitioner “would commit future rapes if he was released from prison”).

Having determined that the prosecutor made some improper statements, we must determine whether these comments were flagrant enough to “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464.

[F]our factors are considered in determining whether the challenged conduct is flagrant: (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.

Bates, 402 F.3d at 641. First, we find it is unlikely that the prosecutor's improper statements misled the jury. His improper statements did not mischaracterize the applicable law or the relevant evidence, see Darden, 477 U.S. at 181-82, 106 S.Ct. 2464 (finding no due process violation where the prosecutor “did not manipulate or misstate the evidence”), but merely reflected a somewhat overzealous attempt to persuade the jury, see Byrd, 209 F.3d at 532 (“[T]he state should not be required to present ... closing arguments that are devoid of all passion.”) (second alteration in original). Second, these improper statements were isolated, and not pervasive; third, the prosecutor deliberately made these improper statements; fourth, we recognize that the prosecution produced strong aggravating evidence against Beuke at sentencing. After balancing these factors, we conclude that the prosecutor's improper statements were not flagrant and therefore did not violate Beuke's due process rights. See Broom, 441 F.3d at 413-14. Our conclusion is buttressed by the trial court's numerous cautionary instructions informing the jurors “that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence.” Darden, 477 U.S. at 182, 106 S.Ct. 2464; see also Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (“[T]he trial court took special pains to correct any impression that the jury could consider the prosecutor's statements as evidence in the case.”).

J. Eighth Amendment-Jury Instruction to Avoid Any Considerations of Sympathy

Beuke contends that the trial court violated his Eighth Amendment rights by instructing the jury not to consider sympathy when issuing its recommended sentence. At one point during the mitigation hearing, Beuke's father began to weep during his testimony, necessitating a brief recess. Upon recommencement of the hearing, the trial judge stated:

Ladies and gentlemen-and we do this because of the unfortunate incident which just happened here a moment ago-in your deliberations-you must not be influenced in your deliberations by any consideration of sympathy or prejudice. The Court will further tell you now, and we will tell you when this matter is finally submitted to you, it is your duty to carefully weigh the evidence, decide all the disputed questions of fact, apply the instructions of the Court to your findings, and render your verdict accordingly. And in fulfilling your duty, your efforts must be to arrive at a just verdict. Consider all the evidence and make your findings with intelligence, impartiality, without bias, sympathy, or prejudice, so that the State of Ohio and this defendant will feel that this proceeding was fairly and impartially tried.

The trial court reiterated these sentiments in its jury instructions given at the conclusion of the mitigation hearing.

Beuke contends that the trial court violated his constitutional rights by (1) referring to his father's testimony as an “unfortunate incident” and (2) instructing the jurors that they “must not be influenced ... by any consideration of sympathy or prejudice.” We reject these arguments. First, it is abundantly clear that the “unfortunate incident” to which the trial court referred was not Beuke's father's testimony, but his father's weeping, which interrupted the hearing. Second, the Supreme Court upheld a similar jury instruction against an Eighth Amendment attack in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). In Brown, the California trial court instructed the jury “not to be swayed by ‘mere sentiment, conjecture, sympathy, passion, prejudice, public opinion[,] or public feeling.’ ” Id. at 542, 107 S.Ct. 837. Here the Ohio trial court told the jury not to be influenced “by any consideration of sympathy or prejudice.” Beuke argues that Brown is distinguishable because the instruction in that case prohibited consideration of “mere sympathy,” whereas, here, the instruction prohibited “any consideration of sympathy.” While we acknowledge this minor distinction between the instruction in Brown and the instruction here, we conclude that this distinction is immaterial because the instruction in the present case fully satisfies the constitutional principles expressed in Brown.

The Eighth Amendment requires “that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (alteration in original). Beuke believes that the instruction at issue here, by prohibiting the jurors from making their findings based on sympathy, violates this constitutional principle. The Court's decision in Brown recognized that when reviewing a jury instruction for constitutional error, we must not only consider the “specific language challenged,” but must also “review the instructions as a whole.” Brown, 479 U.S. at 541, 107 S.Ct. 837. The entire instruction here exhorted the jurors to “carefully weigh the evidence,” “apply the instructions of the Court,” “consider all the evidence,” and “make ... findings with intelligence [and] impartiality, [and] without bias, sympathy, or prejudice.” When read in the context of the entire instruction, we conclude that a reasonable juror would perceive the court's specific admonition to “not be influenced ... by any consideration of sympathy” as a “directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.” Id. at 542, 107 S.Ct. 837. Moreover, a reasonable juror hearing this entire instruction-which emphasized the need to “weigh the evidence,” “apply the instructions of the Court,” and “consider all the evidence”-would logically “conclud[e] that [the instruction] was meant to confine the jury's deliberations to consideration arising from the evidence presented, both aggravating and mitigating.” See id. at 543, 107 S.Ct. 837. By “help[ing] to limit the jury's consideration to matters introduced in evidence,” this instruction-far from violating the Constitution-actually “fosters the Eighth Amendment's ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” See id. (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). We thus find, relying primarily on the Supreme Court's decision in Brown, that the trial court's instructions did not violate Beuke's Eighth Amendment rights.

Beuke also contends that the timing of the instruction-in the middle of his father's testimony-and the directive not to indulge “any consideration of sympathy” effectively communicated to the jurors that they should disregard his father's testimony. We find Beuke's argument to be quite a stretch in light of the entire record; a reasonable juror certainly would not have interpreted the judge's instruction as a directive to disregard the testimony of Beuke's father. The instruction explicitly commanded the jurors to “consider all the evidence,” which included Beuke's father's testimony. And more importantly, the trial court, after giving this instruction, allowed Beuke's father to continue his testimony, which would indicate to a reasonable juror that his testimony was relevant and worthy of consideration. Had the court intended the jurors to disregard this testimony, or had the court wished to convey such a message, it would have terminated his testimony at that point, and not allowed him to continue. Accordingly, Beuke's claim is without merit.

K. Constitutionality of Ohio's Death Penalty Scheme

Beuke next challenges the constitutionality of Ohio's death penalty scheme. His arguments are entirely meritless and have been rejected by this court on numerous occasions. We therefore will afford them minimal attention.

Beuke first contends that Ohio's death penalty scheme violates the Supreme Court's decision in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), because it does not sufficiently narrow the class of murderers eligible for the death penalty. Beuke's argument lacks merit in light of our many cases holding that the Ohio death penalty scheme is consistent with Lowenfield. See, e.g., Coleman v. Mitchell, 268 F.3d 417, 443 (6th Cir.2001); Buell v. Mitchell, 274 F.3d 337, 369-70 (6th Cir.2001); Smith v. Mitchell, 348 F.3d 177, 214 (6th Cir.2003).

Beuke next asserts that the Ohio appellate courts failed to determine whether his sentence was proportionate to the penalty imposed in similar cases or, put differently, that the Ohio courts failed to review his sentence for comparative proportionality. Beuke specifically contends that his death sentence was disproportionate to the sentences imposed against ten other defendants who were convicted of aggravated murder in the same Ohio county but who did not receive the death penalty. This claim is meritless.

This circuit has consistently interpreted the Supreme Court precedents to hold that comparative proportionality review is not required by the Constitution. Most recently, in our en banc opinion in Getsy v. Mitchell, 495 F.3d 295 (6th Cir.2007), we explained the distinction between the proportionality required by the Eighth Amendment and the comparative proportionality that the petitioner in Getsy-like Beuke in the case before us here-sought.

Eighth Amendment proportionality, as defined by the Supreme Court, refers “to an abstract evaluation of the appropriateness of a sentence for a particular crime.” Proportionality as defined by the Supreme Court evaluates a particular defendant's culpability for his crime in relation to the punishment that he has received.

Getsy, 495 F.3d at 305 (internal citations omitted). In those cases in which the Supreme Court has struck down a death sentence on proportionality grounds, we went on to say, the disproportionality was not in relation to sentences received by other similarly situated defendants; the disproportionality of the sentence was in relation to the particular crime that the particular defendant had committed. Id. Citing Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), we pointed out that the Supreme Court has “expressly held that a defendant could not prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.” Getsy, 495 F.3d at 305 (internal quotation marks omitted).

Because Beuke bases his comparative proportionality argument on other defendants who did not receive the death penalty, his argument is directly foreclosed by our decision in Getsy. Moreover, we have upheld the proportionality review of Ohio's death penalty scheme against various innovative constitutional challenges, see Getsy, 495 F.3d at 306; Byrd, 209 F.3d at 539; Buell, 274 F.3d at 368-69; Cooey, 289 F.3d at 928; Smith, 348 F.3d at 214; Wickline v. Mitchell, 319 F.3d 813, 824-25 (6th Cir.2003); Williams v. Bagley, 380 F.3d 932, 962-63 (6th Cir.2004), and Beuke has failed to distinguish or otherwise undermine this wealth of legal authority.

L. Beuke's Evidentiary Motions

Beuke argues that the district court abused its discretion by denying (1) his motion to expand the record pursuant to Rule 5 of the Rules Governing Section 2254 cases, (2) his motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 cases, (3) his motion for leave to conduct discovery pursuant to Rule 6 of the Rules Governing Section 2254 cases, and (4) his request for an evidentiary hearing. Even though Beuke commenced this habeas action in May 1994, he did not file his motions to expand the record or motion for leave to conduct discovery until September 1995, less than one month before the district court issued its order dismissing his habeas petition. Moreover, Beuke did not file a formal motion requesting an evidentiary hearing; instead this request was tucked deep within his lengthy habeas petition.

1. Motions to Expand the Record

Rule 5 of the Rules Governing Section 2254 cases, as it existed when Beuke filed his habeas petition, provided that “[t]he court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished.” The former version of Rule 7 similarly stated: “[T]he judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.” We have recognized that expansion of the record in habeas cases “is not mandatory ... and is left to the discretion of the trial judge.” Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.1988). We review the district court's denial of a motion to expand the record for abuse of discretion. Id.

In his motions to expand the record, Beuke sought to introduce (1) nine documents referenced in the state court trial transcripts, (2) all prior statements that Michael Cahill and other prosecution witnesses made to the authorities, and (3) background information regarding Robert Craig. Beuke asserted that the prosecution failed to provide him with most of these documents prior to trial and that these documents were essential to his Brady claim. The district court denied both of Beuke's motions to expand the record. The court's order reviewed the procedural history of the case, noting that at the time the parties were compiling the record before the district court, the court explicitly directed Beuke's counsel to “make a thorough review of the eight volume appendix ... and advise [the state's] counsel ... of any documents not included in the appendix which [were] relevant to a claim in the federal habeas corpus petition[.]” Counsel for both parties thereafter stated that they had “reached agreement as to the documents [Beuke] sought to include in the appendix.” More than three months later, however, Beuke's counsel filed these motions to expand the record. After reviewing this procedural history, the district court reasoned:

[Beuke] has failed to make any showing that the [proffered] documents ... are necessary to a full and fair consideration of his claims by this Court. [Beuke] had the opportunity to make the documents ... part of the record at trial and on direct appeal but failed to do so. He has made no showing of cause for that failure, nor has he demonstrated that inclusion of the documents in the record before this Court would establish his right to relief in federal habeas corpus.... Most of the documents go to the alleged unreliability of Michael Cahill and to alleged inconsistencies between his prior statements or the statements of other persons and Cahill's trial testimony.

None of the alleged inconsistencies goes to a fact material to [Beuke's] conviction.... Briefly summarized, the evidence of [Beuke's] guilt is overwhelming. [The district court then summarized the wealth of physical evidence against Beuke.]

We find that the district court did not abuse its discretion in denying Beuke's motions to expand the record. Beuke's counsel had adequate opportunities to include the proffered documents in the record; the district court even instructed him to “advise [the state's] counsel ... of any documents not included in the appendix which [were] relevant” to his claims. More importantly, Beuke did not demonstrate how these documents would further any of his constitutional claims. In his motions to expand the record, Beuke primarily argued that these documents would support his Brady claim. We have already concluded that these proffered documents do not satisfy Brady's materiality requirement, and thus affirm the district court's finding that these documents would not have furthered Beuke's Brady claim. Consequently the district court did not abuse its discretion by denying Beuke's motions to expand the record.FN10

FN10. Beuke objects to the district court's statement that he should have introduced the proffered documents on direct appeal in state court, contending that these documents could not have been added to the state court record because the prosecution failed to provide these documents in violation of Brady. Even if we were to agree with Beuke on this issue, we nevertheless would conclude that the district court did not abuse its discretion by denying his motions to expand the record because the court did not rely solely on Beuke's failure to introduce these documents on direct appeal, but relied as well on Beuke's failure to demonstrate that these documents would have supported his habeas claims. Because we find the district court's alternative basis to be a sufficient basis for denying the motions to expand the record, we conclude that the district court did not abuse its discretion.

2. Motion for Leave to Conduct Discovery

“Habeas petitioners have no right to automatic discovery.” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.2001). Rule 6 of the Rules Governing Section 2254 cases, as it existed when Beuke filed his habeas petition, stated that “[a] party shall be entitled to invoke the processes of discovery ... if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so [.]” We review the district court's denial of a discovery request for abuse of discretion. Stanford, 266 F.3d at 460.

In his motion for leave to conduct discovery, Beuke presented numerous requests for documents and depositions. The evidence requested in the motion for leave to conduct discovery sought the same information requested in the motions to expand the record. The district court denied the discovery motion for the same reasons it denied the motions to expand the record, namely, because Beuke had not established that the requested discovery was unavailable during direct appeal, and because Beuke had not shown that the requested discovery would uncover evidence of a constitutional violation. For the same reasons we found that the district did not abuse its discretion by denying the motions to expand the record, we likewise find that the district court did not abuse its discretion by denying the motion for leave to conduct discovery. See Williams, 380 F.3d at 976 (finding that a district court did not abuse its discretion by denying a petitioner's request to conduct discovery where the petitioner did not show “that the requested discovery could yield evidence enabling [him] to prevail on his [habeas] claim”).

3. Request to Conduct an Evidentiary Hearing

Beuke did not file a separate motion requesting an evidentiary hearing, but merely inserted this request in one sentence on the second-to-last page of his 306-page amended habeas petition, unaccompanied by any supporting argument. The district court-apparently unmoved by Beuke's undeveloped request for a hearing-dismissed Beuke's habeas petition without holding the requested hearing. Shortly after the court dismissed the petition, Beuke filed a motion to alter or amend the judgment, arguing among other things that the district court should have held an evidentiary hearing prior to adjudicating his petition. The court denied this motion because Beuke did not demonstrate his entitlement to an evidentiary hearing under 28 U.S.C. § 2254(d).

Under pre-AEDPA law, a district court need not conduct an evidentiary hearing “unless one of the eight circumstances listed in [former] 28 U.S.C. § 2254(d) is present.” McMillan v. Barksdale, 823 F.2d 981, 983 (6th Cir.1987) (citing Loveday v. Davis, 697 F.2d 135 (6th Cir.1983)). These circumstances include: (1) when a factual dispute is not resolved in state court; (2) when the state court's factfinding procedure is inadequate to afford a full and fair hearing; (3) when material facts are not adequately developed in state court; (4) when the state court lacks jurisdiction; (5) when the state court fails to appoint counsel; (6) when the petitioner does not receive an adequate hearing in state court; (7) when the petitioner is denied due process in state court; and (8) when the district court determines that a material fact determination is not fairly supported by the record. 28 U.S.C. § 2254(d) (1994). “These circumstances must be shown by the petitioner, admitted by the State, or ‘otherwise appear’ from the record.” McMillan, 823 F.2d at 984.

The district court did not err by denying Beuke's habeas petition without first holding an evidentiary hearing. Beuke did not demonstrate to the district court that any of the eight circumstances under former 28 U.S.C. § 2254(d) were satisfied; in fact Beuke did not present any argument to the district court on his request for an evidentiary hearing. Moreover, our independent review of the record confirms that none of these requisite circumstances were satisfied, and we thus conclude that the district court did not err in failing to conduct an evidentiary hearing. See Ford, 841 F.2d at 691.

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.

*****

BOYCE F. MARTIN, JR., Circuit Judge, dissenting.

Because I cannot agree with the majority's holding that the prosecutorial misconduct during closing arguments of the penalty phase of Beuke's trial did not infect the trial with unfairness resulting in an unconstitutional denial of due process, I respectfully dissent.

I.

While it is obvious that the crime for which Beuke was convicted was heinous and the evidence presented against him was voluminous, it is in exactly such circumstances that we, as officers of the Court, must ensure that Beuke receives a fair trial in front of an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Groppi v. Wisconsin, 400 U.S. 505, 509, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971) (“In essence, the right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process ... This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.”).

The prosecutorial misconduct was so egregious and inflammatory, that I have grave doubts about the fairness and integrity of Beuke's penalty phase hearing. Justice Wright, dissenting from the Ohio Supreme Court's upholding of Beuke's conviction, stated it well: “[w]hile isolated instances of prosecutorial misconduct or overzealousness may be tolerated in many circumstances and indeed prove ‘harmless,’ there comes a point where the cumulative effect of improper remarks and of untoward conduct by the state constitutes reversible error.” State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274, 291 (1988).

II.

As stated by the majority, in order for this Court to reverse Beuke's conviction, a prosecutor's comments must so infect the trial “with unfairness as to make the conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). We have held that “reversal is required if the prosecutor's misconduct is ‘so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant.’ ” Bates v. Bell, 402 F.3d 635, 642 (6th Cir.2005). To succeed on his claim, Beuke must demonstrate that the prosecutor's conduct was both improper and flagrant. Id. at 641. We first determine if the challenged conduct was improper. It is obvious to any objective observer that the closing arguments of the prosecution were blatantly improper.

The majority analyzes five categories of statements made by the prosecutor that are challenged by Beuke: (1) statements indicating that the death penalty sends a deterrent message to criminals and a reassuring message to the law-abiding public; (2) statements where the prosecutor allegedly relied on his own personal experience to persuade the jury; (3) statements about the victims of the attempted murders, Wahoff and Graham; (4) statements indicating the prosecutor's personal fear of Beuke; and (5) statements warning the jurors that Beuke could be paroled if he did not receive a death sentence.

The majority actually concedes that the second and fifth categories-the prosecutor's personal fears and warnings about Beuke killing again-were improper. I would hope so. The prosecutor stated that he was “scared to death of that man,” and he did not “want him out on the street again.” It is beyond question that such personal arguments are grossly improper. See Bates, 402 F.3d at 644 (“It is well-established law that a prosecutor cannot express his personal opinions before the jury.” (internal quotation marks omitted)). The majority also found improper the prosecutor's likening of Beuke to a “cancer ” that needed to be “cut-out” so that it would not “kick back up again and spread.” The majority found these statements were improperly calculated to appeal “to the juror's fears that Beuke would commit additional crimes if he was [sic] eventually released from prison.”

But the majority found the rest of the statements to be appropriate. I do not agree.

The beginning of the prosecutor's closing argument was “Make a message ring out. Criminals and potential criminals in this community, we won't tolerate this.” After Beuke's attorney objected and was overruled, the prosecutor went on, stating the death penalty was “a message of justice, to the law-abiding people in this community,” and “the only way they can be satisfied, to feel that justice has been done, is if capital punishment is measured out in a certain specific situation.” The prosecutor concluded his argument by stating that “There is no other verdict that we can possibly come up with which would be a just verdict, which would be a verdict that we could live with, where we could say to ourselves that justice has been done in our community.” The majority characterized these statements as “general background information on the death penalty and the need to punish guilty people, rather than an impassioned command that the jurors must recommend death based on some amorphous societal obligation.” I respectfully disagree. I cannot imagine a more impassioned plea to a jury than a prosecutor beginning his closing argument by asking the jury to “[m]ake a message ring out.” I fail to see how that statement deals with the general background of the death penalty. It is obvious that the prosecutor made a calculated decision to attempt to “arouse passion and prejudice and to inflame the jurors' emotions” regarding the mad hitchhiker killings “by urging them to send a message.” United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir.1991). We have explicitly outlawed this type of prosecutor behavior. In Solivan, we stated that “[a] prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.” Id. (quoting United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984)). The majority's holding should be identified for what it is, a contrived after-the-fact interpretation with expediency-rather than justice-as the end goal.

The prosecutor's statements regarding the victims of the attempted murders, Wahoff and Graham, were also improper. The majority held that it was proper for the prosecutor to discuss these victims because in order for Beuke to be death-penalty eligible, his murder of Robert Craig must have been part of a course of conduct involving the purposeful attempt to kill two or more persons-Wahoff and Graham. While the majority is correct in this statement, it is incorrect that the prosecutor is then allowed to purposely “make statements calculated to incite the passions and prejudices of the jurors.” Bates, 402 F.3d at 642 (internal quotation marks omitted). The prosecutor asked the jury to “think about Mr. Wahoff, first of all, and his little babies.” He continued:

If you want to start feeling sorry for the defendant ..., think about Mr. Wahoff and his little girl. His little girl, who he will never dance with because he is paralyzed. Think about his little boy that he talked about. He will never run with that little boy. He will never play baseball.... And he will never be able to dance with that little girl when she goes to high school. He will never play ball with that little boy.

While it is true that the shootings of Wahoff and Graham were aggravating circumstances under the law, the impact of those shootings on their families is not an aggravating circumstance and is in no way related to the murder of Robert Craig. Accordingly, I believe it is patently obvious that the prosecutor intentionally made “inappropriate and inflammatory remarks in violation of what this Court has described as the cardinal rule that a prosecutor cannot make statements calculated to incite the passions and prejudices of the jurors.” Id. (internal quotation marks omitted).

Beuke also challenges the statements regarding the prosecutor's personal opinion that Beuke's case fit the specifications needed to be eligible for the death penalty.

And if there ever was a case for the death penalty, it is this case right here. [Objection overruled]. If there ever was a case for a verdict of death and for the penalty of death, it is this case. If there ever was a case that fits the specifications more closely to a course of criminal conduct, shooting, killing people, it is this case right here. You think about the past 10 years, the kind of crimes that have been committed in this community, this crime. [Objection overruled]. This crime stands out in your mind as being a terrible act, something that just can't be forgotten by the members of this community.

Once again, the majority characterizes these inflammatory statements as not an appeal to the prosecutor's personal experience, but to the jury's past experience. I do not think the majority's holding is an accurate interpretation of the prosecutor's statements. It is obvious that the prosecutor believed this to be a heinous crime that the community had not seen in over a decade, and probably one of the worst in his career. He put his imprimatur on these opinions, imploring the jury to agree with him that this was a crime with no comparison in the community. See United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (“[T]he prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.”). Such conduct is unmistakably improper. “In the capital sentencing context, prosecutors are prohibited from expressing their personal opinion as to the existence of aggravating or mitigating circumstances and the appropriateness of the death penalty. Jurors are mindful that the prosecutor represents the State and are apt to afford undue respect to the prosecutor's personal assessment.” Bates, 402 F.3d at 644.

Additionally, in the prosecution's rebuttal closing argument, he expressed his personal fear of Beuke, stating that he was “scared to death of that man. I don't want him out on the street again.” He then went on to say that for every mistake the criminal justice system has made in sentencing someone to death, he could “bring in five killers on parole, that kill again.” This line of argument is grossly improper, as we have held many times before. See id. at 648 (finding improper a prosecutor's argument at death penalty hearing warning of future murders if defendant was not put to death). By describing his own personal fear of Beuke and the possibility that he could kill again if not put to death, “the prosecution attempted to place the government's thumb on the scales by repeatedly interjecting personal opinion into the record.” Id. Such conduct, again, is grossly improper.

Having determined that the prosecution's closing argument at the penalty phase of Beuke's trial was laced with repeated improper statements, it is not difficult to find that the prosecutor's conduct was flagrant, and Beuke was unconstitutionally prejudiced. We analyze the challenged conduct of the prosecutor to determine if Beuke was prejudiced under the following four factors: (1) the likelihood that the prosecution's remarks tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant. Id. at 641. And, as in this case, if we are dealing with a death penalty sentencing hearing, this Court must grant relief it if finds that the prosecutor's misconduct “influenced the jury's decision between life and death.” Id.

First, there can be little doubt that the prosecutor's repeated improper statements mislead the jury and prejudiced Beuke. The prosecution stated that he personally was afraid of Beuke, and implied that there was a real possibility that he would kill again if paroled. Most flagrantly, the prosecution compared Beuke to a cancer that needed to be cut out, and not allowed to remain and fester. Just as in Bates, “[t]his type of appeal to fear and emotion clearly poisoned the hearing.” Id. at 648.

Second, as I think is made clear from the discussion above, the prosecution's improper remarks were also extensive. The prosecution's entire closing argument was “laced ... with personal opinion, [ ] and undignified and unprofessional appeals to hatred and fear.” Id.

The third factor also weighs in Beuke's favor. The improper remarks were unquestionably deliberate. Beuke's trial counsel objected multiple times, only to be overruled, and to have the improper conduct continue. “The intentionality of the prosecutor's improper remarks can be inferred from their strategic use.” Id.

Finally, I address the total strength of the evidence against Beuke. It is important to note that we are not addressing the evidence of defendant's guilt-Beuke's conviction for the underlying murder was a foregone conclusion at the penalty phase. Instead, the inquiry must be focused on the appropriate punishment. Id. Importantly, in the death penalty context, we must distinguish between evidence of the defendant's guilt of the underlying criminal charge and evidence of any attendant aggravating and mitigating circumstances. “Overwhelming evidence of guilt can often times be sufficient to sustain a conviction despite some prosecutorial misconduct, but overwhelming evidence of guilt does not immunize the sentencing phase evaluation of aggravating and mitigating factors.” Id. at 648-49. “[T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). As we have held before, “[p]rosecutorial misconduct in the sentencing hearing can operate to preclude the jury's proper consideration of mitigation.” Bates, 402 F.3d at 649 (“When a prosecutor's actions are so egregious that they effectively foreclose the jury's consideration of ... mitigating evidence, the jury is unable to make a fair, individualized determination as required by the Eighth Amendment.”) (quoting DePew v. Anderson, 311 F.3d 742, 748 (6th Cir.2002) (internal quotation marks omitted)). It is clear that the extensive and egregious nature of the prosecution's closing argument at the penalty phase precluded the jury's proper consideration of mitigation. See id. (“In this capital sentencing context, such flagrant misconduct by the prosecutor cannot be considered harmless error. The prosecutor's unnecessary and intolerable conduct injected such vitriol into the proceedings, as to question the fairness of the entire sentencing hearing.”). It is clear that the prosecution's improper and flagrant conduct “influenced the jury's decision between life and death.” Id. at 641.

III.

Accordingly, because the prosecution's closing argument unconstitutionally poisoned Beuke's penalty phase hearing, I would reverse the district court and grant Beuke's petition for a writ of habeas corpus.