Washington eventually directed the group to the Vine Street News, an adult bookstore in Eastlake. Treesh and Brooks were armed with a nine-millimeter handgun and a sawed-off shotgun. Harth handed Treesh a roll of duct tape to restrain the robbery victims.

Treesh and Brooks entered the Vine Street News and approached the sales counter where Louis Lauver worked. Treesh pulled out the nine-millimeter handgun, cocked it, pointed it at Lauver, and ordered him not to move or call out for help. Treesh then asked Lauver where the security guard was, and Lauver motioned toward the rear of the store. Treesh walked through swinging doors into the restricted area at the rear of the store and poked the security guard, then ordered Dupree to stand up. Startled, Dupree complied.

Treesh testified that he originally intended to take Dupree to the front of the store and tape him up with the clerk, but then noticed handcuffs on Dupree’s pants and decided to use them. According to Treesh, a struggle ensued when he reached for Dupree’s handcuffs, and the handgun discharged. While Treesh was in the rear of the store, Brooks ordered Lauver to empty the cash register. Lauver complied, and Brooks demanded that Lauver open the safe. As Lauver explained that this was impossible, shots rang out from the back of the store and Treesh came rapidly back through the swinging doors. Brooks quickly left with the money from the cash register. Lauver stood by the counter with his hands in the air as Treesh headed toward the exit. Before reaching the door, Treesh brought the handgun up, pointed it at Lauver, and fired at least two shots. Bullets struck Lauver in the jaw and forearm. Treesh later testified that he aimed these shots not at Lauver, but at the telephone on the wall behind the counter.

After Treesh left the store, Lauver temporarily lost consciousness, but awoke shortly thereafter and dialed 911. Dupree, grievously injured during his encounter with Treesh at the rear of the store, managed to make his way through the swinging doors, but collapsed on the floor behind the counter. An autopsy later confirmed that Dupree died as a result of two close-range gunshot wounds in his chest. Lauver survived and testified at trial.

Treesh and Brooks robbed banks and several businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin. Brooks, 45, of New Haven, Ind., pleaded guilty to avoid the death sentence and is serving 40 years to life in prison.

Citations:

State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749 (Ohio 2091). (Direct Appeal)
Treesh v. Bagley, 612 F.3d 424 (6th Cir. 2010). (Habeas)

Final/Special Meal:

Steak, eggs, hash browns, cottage cheese, onion rings and a hot fudge sundae.

Final Words:

“This is where drugs lead you.” Treesh apologized for the death of Dupree, but said he wouldn’t say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. "I'm not here to say I'm sorry to any of these victims that are here. I've never been tried, never been charged with that crime. I am here for Henry Dupree. I'd like to apologize to the family for what I've done. I'm sorry. You want closure? Closure only comes with a book. You close it and put it on a shelf. There is no closure. Every holiday, every birthday, everything, you will think about the victim. So if you want me murdered, just say it.”

Frederick Treesh
Number: CCI#: A307703
Date of Birth: 4/12/1964
Gender: Male Race: White
Date of Offense:
County of Conviction: Lake
Institution: Chillicothe Correctional Institution
Executed: 03/06/2013

On March 6, 2013, Frederick Treesh was executed for the 1984 aggravated murder of Henry Dupree.

IN RE: FREDERICK TREESH, CCI #A307-703
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: January 31, 2013
CRIME, CONVICTION: Aggravated Murder, Attempted Aggravated Murder (2 cts) w/Firearm Specification, Aggravated Robbery.
DATE, PLACE OF CRIME: August 27, 1994 in Eastlake, Ohio,
COUNTY: Lake
CASE NUMBER: 94CR000514
VICTIM: Henry Dupree (deceased), Lewis Lauver (wounded but survived), Sgt. Ronald Stih (survived)

INDICTMENT: Aggravated Murder, Attempted Aggravated Murder (2 cts), Felonious Assault, Aggravated Assault, Failure to Comply, Weapon Under Disability.
VERDICT: Found guilty by jury Couonts 1-5. Pled Guilty to Count 7. Count 6 was nolled.
DATE OF SENTENCE: March 2, 1995
SENTENCE: DEATH; 10-25 Years, 10-25 Years; Merged, Merged, Nolle, Merged.
ADMITTED TO INSTITUTION: March 3, 1995
JAIL TIME CREDIT: 0 days
TIME SERVED: 214 months
AGE AT ADMISSION: 30 years old
CURRENT AGE: 48 years old
DATE OF BIRTH: April 12, 1964

JUDGES: Honorable James W. Jackson
PROSECUTING ATTORNEY: Charles E. Coulson

Ohio executes man convicted of killing in crime spree

By Kim Palmer - Reuters.com

Mar 6, 2013

(Reuters) - Ohio on Wednesday executed a man who was convicted of killing a security guard and wounding a cashier at an adult book store east of Cleveland in 1994 during a week-long multistate crime spree, the state corrections department said. Frederick Treesh, 48, was put to death by lethal injection at the Ohio state prison in Lucasville, the Ohio Department of Corrections and Rehabilitation said. He was pronounced dead at 10:37 a.m. EST (1537 GMT). He was the first inmate executed in Ohio this year and the fourth person executed in the United States in 2013, according to the Death Penalty Information Center.

Treesh was convicted of shooting security guard Henry Dupree four times with a 9mm handgun, killing him, and shooting cashier Louis Lauver twice in the head during a robbery at the Vine Street News store to get cash to buy crack cocaine. Treesh then fired on police as he and an accomplice, Benjamin Brooks, fled the store. They were arrested after Treesh ran out of ammunition. Treesh was convicted of aggravated murder, attempted murder and felonious assault. Brooks was sentenced to 40 years to life.

Prosecutors said Treesh's arrest ended a week-long, multi-state crime spree that included the murder of Gus Danno at a video store in Michigan, bank robberies, carjackings and a kidnapping. Michigan authorities opted not to charge Treesh with Danno's murder after he was sentenced to death in Ohio. Relatives of Danno's were among the witnesses to Treesh's execution. "I'm not here to say I'm sorry to any of these victims that are here. I've never been tried, never been charged with that crime," Treesh said in a final statement referring to Danno's relatives released by the corrections department. "I am here for Henry Dupree," the statement continued. "I'd like to apologize to the family for what I've done. I'm sorry."

During the crime spree, Treesh inserted light bulbs in his victims' mouths, wrapped their faces in duct tape and then punched them in the face to shatter the bulbs, prosecutors said. At trial, prosecutors presented a videotaped interrogation in which Treesh said he had been involved in several other murders, including the lynching of a black man. Defense attorneys said those crimes were unsubstantiated "tall tales."

The Ohio Parole Board voted unanimously against recommending clemency for Treesh, who declined to be interviewed. Republican Governor John Kasich rejected Treesh's clemency bid last week.

Ohio executes Frederick Treesh for 1994 Eastlake killing

By Tracey Read - News-Herald.com

Thursday, March 07, 2013

LUCASVILLE — Before being put to death, Frederick Treesh said he wanted to be remembered as an example of how drugs can ruin your life. “This is where drugs will lead you. This is true life,” he said before being executed at the Southern Ohio Correctional Facility. On Wednesday, Treesh, 48, of Indiana, became the 50th inmate to be executed in Ohio since 1999. Treesh was executed for killing Henry Dupree, 58, of Cleveland, on Aug. 27, 1994, during a robbery at the former Vine Street News adult bookstore in Eastlake. Cashier Louis Lauver also was shot and suffered injuries to his jaw and forearm.

Treesh remained stoic the entire 32 minutes he was strapped to the gurney, even as blood trickled down his left arm from the prison staff injecting drugs into his veins. Treesh began his final statement thanking WISH TV reporter Karen Hensel of Indianapolis for an Emmy-award winning documentary she did on him after the crime. Treesh said he wished reporters would have been allowed to film his execution. Treesh also thanked the execution team for their professionalism, defense attorney James Benza and fellow death row inmate James Goff for his friendship.

He denied killing anyone other than Dupree, even though two family members of Gus Danno, a Michigan man who was fatally gunned down at a bookstore in that state, were there to witness the execution. “I’m not here to say I’m sorry to any of these victims that are here,” said Treesh. “I’ve never been tried, never been charged with that crime. I’m here for Henry Dupree. I apologize to his family for what I’ve done. “You want closure? Closure only comes with a book. You close it and put it on a shelf. There is no closure. Every holiday, every birthday, everything, you will think about the victim. So if you want me murdered, just say it.” Lake County Prosecutor Charles Coulson said none of Dupree’s family members could attend because they are too elderly or ill to make the trip.

Dupree’s family gave up one of their three victim witness seats to Coulson and gave the other two to Danno’s family. “I’m emotional not for Frederick Treesh but for his victims,” Coulson said after the execution. Deanne Danno, Gus’s sister-in-law, said justice was served. “There is one less criminal in the world,” she said, adding that she was “appalled” Treesh refused to admit killing Gus in an incident that also injured Gus’s brother.

Treesh’s witnesses were Benza, anti-death penalty advocate Bill Kimberlin and spiritual advisor James Reed. “This is a tough day for all of us,” prison Director Gary Mohr said before preparing Treesh for his fate.

Treesh shot Dupree and Lauver after a cocaine-fueled, multistate crime spree. Prosecutors said Treesh and co-defendant Benjamin Brooks also committed crimes in Indiana, Iowa, Michigan, Minnesota and Wisconsin over a three-week period before ending up in Ohio. Treesh also raped several women, robbed banks, committed violent home invasion robberies and tried to kill Euclid police officers who were pursuing him, Coulson said. Treesh was convicted by a Lake County jury for the Eastlake incident, but has never been prosecuted for the crimes in other states.

His appellate lawyers, Timothy Sweeney and S. Adele Shank, told the parole board Treesh deserves life in prison instead of death. They argued Treesh’s ADHD and cocaine addiction warranted mercy. In addition, defense attorneys argued his co-defendant did not get a death sentence or life in prison. Treesh did not appear to be in pain during the execution. Before going to sleep forever, Treesh simply stated, “That’s it.” And the curtain closed at the death house.

Ohio executes Frederick Treesh, killer who fatally shot security guard

Cleveland.com

Associated Press

March 06, 2013

LUCASVILLE, Ohio — A man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree was executed today. Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville. Treesh was sentenced to die for killing Henry Dupree in Eastlake on Aug. 27, 1994.

In a last statement, Treesh apologized for the death of Dupree, but said he wouldn’t say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. “I’ve never been tried, I’ve never been charged,” he said. After a few more comments he said, “If you want me murdered, just say it.” Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.

Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn’t shown any sign of being a threat to Treesh. The board also said Treesh’s decision to shoot a clerk in the face as he left the store suggests Treesh’s “murderous intent” when coming to the store. Treesh and his co-defendant “gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them,” the board said. Prosecutors say Treesh, 48, and the co-defendant robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.

Treesh’s attorneys described him as a cocaine addict who was high during the robbery and is deeply sorry for what happened. “Hindsight, regret and remorse cannot turn back the clock and cannot return Mr. Dupree’s life,” they said in a petition for clemency. “What Fred can do and has tried to do is to help prevent others from making the same mistakes he did” by teaching them to avoid drugs. His lawyers also alleged Treesh’s rights were violated during a prolonged interrogation as he was coming down from a drug high, which contributed to his death sentence. They also say Treesh suffers from health problems, including a seizure disorder, that raise concerns Ohio’s lethal injection process would cause him suffering amounting to cruel and unusual punishment.

Prosecutors contend Treesh intentionally murdered Dupree and tried to kill others, including police officers in pursuit. “Treesh has never taken responsibility for his actions,” Lake County Prosecutor Charles Coulson wrote. “Treesh still claims ‘the cocaine made him do it.’ ” Coulson also noted that courts previously determined Treesh’s constitutional rights weren’t violated. Treesh declined to be interviewed by the parole board.

The parole board cited Treesh’s refusal to be interviewed as evidence he has not grown or improved as a person in prison. Treesh’s prison behavior is indicative of “a self-indulgent, petulant and immature individual,” the board said. He was never prosecuted for the crimes in the other states, according to the Ohio Attorney General’s Office. Ohio’s most recent execution was in November, when the state put to death Brett Hartman for the 1997 stabbing and dismemberment of an Akron woman.

Killer of store guard is executed at Lucasville

By Andrew Welsh-Huggins - Dispatch.com

March 6, 2013

LUCASVILLE, Ohio — Ohio today executed a man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime rampage, as witnesses of a second slaying victim of that rampage looked on intently. Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 a.m. by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville.

Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994. He and a co-defendant were suspects in the shooting death three days earlier of Ghassan Danno, a Livonia, Mich., video store co-owner. “This is where drugs lead you,” Treesh, a former cocaine addict, said in a last statement. He also apologized for the death of Dupree, but said he wouldn’t say he was sorry to family members of Danno, who sat a few feet away watching through a window. Treesh said he’d never been charged or tried in that slaying. After a few more comments Treesh said, “If you want me murdered, just say it.” Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.

The prison system said Treesh’s veins checked out beforehand, but executioners seemed to have a little difficulty inserting the IVs after Treesh entered the death chamber shortly after 10 a.m. A trickle of blood ran down Treesh’s right arm after one attempt, while the insertion on the left arm took a couple of attempts with the successful insertion on the inmate’s forearm. Treesh spoke a few times during the insertion process but his remarks were inaudible. He yawned shortly after the drug began flowing, then his mouth fell open and he was still for several minutes.

Danno’s sister-in-law said afterward that justice had been served. “There’s one less sadistic killer in this world,” said Deanne Danno, who witnessed the execution. “He has no heart. He’s a soulless person that should never have been brought into this world.”

Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn’t shown any sign of being a threat to Treesh. The board also said Treesh’s decision to shoot a clerk in the face as he left the store suggests Treesh’s “murderous intent” when coming to the store. Treesh and Brooks “gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them,” the board said. Prosecutors said justice could be served and money saved by charging Treesh and co-defendant Benjamin Brooks in Ohio. Prosecutors say Treesh, 48, and Brooks robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.

Treesh’s attorneys described him as a cocaine addict who was high during the robbery and was deeply sorry for what happened. “Hindsight, regret and remorse cannot turn back the clock and cannot return Mr. Dupree’s life,” they said in a petition for clemency. “What Fred can do and has tried to do is to help prevent others from making the same mistakes he did” by teaching them to avoid drugs. His lawyers also alleged Treesh’s rights were violated during a prolonged interrogation as he was coming down from a drug high, which contributed to his death sentence. They also say Treesh suffered from health problems, including a seizure disorder, that raised concerns Ohio’s lethal injection process would cause him suffering amounting to cruel and unusual punishment.

Prosecutors contend Treesh intentionally murdered Dupree and tried to kill others, including police officers in pursuit. “Treesh has never taken responsibility for his actions,” Lake County prosecutor Charles Coulson wrote. “Treesh still claims `the cocaine made him do it.“’ Coulson also noted that courts previously determined Treesh’s constitutional rights weren’t violated. Treesh declined to be interviewed by the parole board.

The parole board cited Treesh’s refusal to be interviewed as evidence he has not grown or improved as a person in prison. Treesh’s prison behavior is indicative of “a self-indulgent, petulant and immature individual,” the board said. He was never prosecuted for the crimes in the other states, according to the Ohio Attorney General’s Office. Brooks pleaded guilty to avoid the death sentence and is serving 40 years to life. Ohio’s most recent execution was in November, when the state put to death Brett Hartman for the 1997 stabbing and dismemberment of an Akron woman.

Frederick Treesh Executed For Fatally Shooting Security Guard In 1994

By Andrew Welsh-Huggins - HuffingtonPost.com

March 6, 2013

LUCASVILLE, Ohio — Ohio executed a man Wednesday who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime rampage as witnesses of a second slaying victim of that rampage looked on intently. Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 a.m. by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville.

Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994. He and a co-defendant were suspects in the shooting death three days earlier of Ghassan Danno, a Livonia, Mich., video store co-owner. Prosecutors say Treesh, 48, and Benjamin Brooks robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a series of crimes that also took them to Indiana, Iowa, Minnesota and Wisconsin.

"This is where drugs lead you," Treesh, a former cocaine addict, said in a last statement. He apologized for the death of Dupree, but said he wouldn't say he was sorry to Danno's family members, who sat a few feet away watching through a window. Treesh said he'd never been charged or tried in that slaying. After a few more comments, Treesh said, "If you want me murdered, just say it."

Treesh, of Waterloo, Ind., was the 50th inmate put to death by the state since it resumed executions in 1999. The prison system said Treesh's veins checked out beforehand, but executioners seemed to have a little difficulty inserting the IVs after Treesh entered the death chamber shortly after 10 a.m. A trickle of blood ran down Treesh's right arm after one attempt, while the insertion on the left arm took a couple of attempts with the successful insertion on the inmate's forearm.

Treesh was emotional after a phone call with his father Wednesday morning and tearful after a final visit with his attorney, according to prison officials. Shortly before 9 a.m. he ate the last of a hot fudge sundae from his requested meal the night before. Treesh spoke a few times as the IV was inserted but his remarks were inaudible. He yawned shortly after the drug began flowing, then his mouth fell open, and he was still.

Danno's sister-in-law said afterward that justice had been served. "There's one less sadistic killer in this world," said Deanne Danno, who witnessed the execution. "He has no heart. He's a soulless person that should never have been brought into this world." Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn't shown any sign of being a threat to Treesh. The board also said Treesh's decision to shoot a clerk in the face as he left the store suggests Treesh's "murderous intent" when coming to the store. Treesh and Brooks "gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them," the board said. Prosecutors said justice could be served and money saved by charging Treesh and Brooks only in Ohio.

Treesh's attorneys described him as a cocaine addict who was high during the robbery and is deeply sorry for what happened. "Hindsight, regret and remorse cannot turn back the clock and cannot return Mr. Dupree's life," they said in a petition for clemency. "What Fred can do and has tried to do is to help prevent others from making the same mistakes he did" by teaching them to avoid drugs. His lawyers also alleged Treesh's rights were violated during a prolonged interrogation as he was coming down from a drug high, which contributed to his death sentence. They also say Treesh suffers from health problems, including a seizure disorder, that raise concerns Ohio's lethal injection process would cause him suffering amounting to cruel and unusual punishment.

Prosecutors contend Treesh intentionally murdered Dupree and tried to kill others, including police officers in pursuit. "Treesh has never taken responsibility for his actions," Lake County prosecutor Charles Coulson wrote. "Treesh still claims `the cocaine made him do it.'" Coulson also noted that courts previously determined Treesh's constitutional rights weren't violated.

Treesh declined to be interviewed by the parole board. The parole board cited Treesh's refusal to be interviewed as evidence he has not grown or improved as a person in prison. Treesh's prison behavior is indicative of "a self-indulgent, petulant and immature individual," the board said. He was never prosecuted for the crimes in the other states, according to the Ohio Attorney General's office.

Brooks, 45, of New Haven, Ind., pleaded guilty to avoid the death sentence and is serving 40 years to life in prison. Ohio's most recent execution was in November, when the state put to death Brett Hartman for the 1997 stabbing and dismemberment of an Akron woman.

Murderer is executed, but victim's family still finds it hard to go on

By Ken Abramczyk - Hometownlife.com

March 28, 2012

An execution in Ohio last week brings little comfort to a former Livonia businessman. For Frank Danno, the execution of Frederick Treesh only brings back haunting memories of a shooting in a video store in Livonia in August 1994 that took the life of his brother Ghassan Danno and critically injured Frank, who had an 18-inch metal rod implanted in his leg and a long physical recovery. Treesh, 48, who was sentenced to die for killing Henry Dupree, a security guard at an adult bookstore in a robbery in Eastlake, Ohio, on Aug. 27, 1994, was pronounced dead at 10:37 a.m. March 6.

In 1994, Treesh and an accomplice, Benjamin Brooks, had gone on a multi-state crime spree of robbery, rape, murder and stolen cars. In Livonia, they were suspected in the shootings at the Dannos' video store, located on Grand River near Eight Mile, which occurred two days prior to the Dupree killing. They were also suspected in a robbery of the Plymouth Motel on Plymouth Road and the theft of a car and assault of a Livonia couple. Livonia police investigators and Wayne County prosecutors had warrants on Treesh, but the Livonia shooting was not prosecuted here because Treesh was tried in Ohio and convicted for the murder of Dupree. Ohio also had the death penalty.

In late 1994, Michigan's attorney general's office spoke with Danno on whether Danno wanted to bring the case to trial even though Treesh faced the death penalty with his conviction. “My answer was no, because it would not serve any purpose,” Danno said. Brooks, of New Haven, Ind., pleaded guilty in April 1995 in a deal that spared him the death penalty. Brooks, now 45, is serving 40 years to life in prison. More than 18 years later, Treesh was executed for the Ohio killing.

Danno, of Macomb, did not want to attend and did not go to the execution, but two other family members did. The pain would be too much for him, Frank said. “I did not want to be in the same room with that ugly son of a bitch,” Danno said of Treesh. Treesh took from Frank his brother, Ghassan, called Gus, who Frank described as not just a brother, but a father and an adviser in life. “He was one heck of a guy,” Frank said. “He didn't want to sleep. We'd work until 2 or 3 a.m. When we were working, he'd say ‘Let's go have a drink.'”

At a hearing before the Ohio parole board earlier this year, Frank described Gus as “a big teddy bear.” “He was the backbone of our family,” Danno said. “When our father died suddenly, Gus immediately took his place. Everything in our lives included my brother. His opinions, advice and knowledge were extremely important to our family. All major decisions were made through Gus.” Zina Danno, who now lives in Chicago, described her husband as a “very nice person and very caring.” “He loved his kids,” Zina said. “He was wonderful with the kids. The kids don't remember; they just know him from pictures.” (Christina was 2 and Christopher was 1 at the time of Gus' death.) “I remember how he played with them and made them laugh,” Zina said.

Both Frank and Gus Danno had dreams of success in business and strove for better lives for themselves and their families. Frank and Gus Danno opened two Best Video stores, one in Livonia and another in Wyandotte. Frank lived in Southfield and was single at the time, while Gus, married for three years to Zina, lived in Sterling Heights. “There was money in it,” Frank said of the video business. “It was hot in the early ‘90s. It was easy, and it was clean. It was fun, as it had to do with movies and entertainment. We were really liked in our area of Livonia.”

On Aug. 25, 1994, Frank had returned from Grand Rapids after discussing expansion of the video store business in that city. Gus worked that night at the store on Grand River. Gus asked Frank to come up to the store to talk and spend time together. Frank joined him at the store and they talked throughout the evening. They sat in the office. The two heard the sound of a door shut inside the store in the adult section of the videos. Suddenly a man appeared in the doorway of the office, blocking Gus and Frank from leaving. Gus asked, “Who the hell are you?” The man, whom Frank had never seen in the store before, suddenly pulled out a 9-millimeter handgun and pointed the weapon back and forth between Gus and Frank. The man asked Gus what time it was, then said, “It's 10 o'clock, brother. It's time to get killed.” Frank said Gus told the man that he would give him the money, and not to shoot him, but when Gus moved toward a drawer where the money was located, the gunman shot Gus. Frank doesn't remember much during the initial shots, but remembers struggling with the gunman. The clip fell out of the gun and Frank struggled to grab it; then he heard a second voice, the gunman's accomplice, who told him to freeze. Within the next few moments, Gus and Frank were both shot. Frank was struck by three shots. Gus was hit five times. Frank still has a bullet inside him.

Frank managed to crawl into the office and call Livonia police. Both men were rushed to Botsford,; then Gus was transported to University of Michigan Hospital. More than 50 family members kept a vigil at the hospital. Frank remembers the flowers sent by customers of the Livonia store. Gus died the next morning. Frank did not know about Gus' death for several days, nor did he attend Gus' funeral because his leg was so badly injured and needed surgery. Frank was hospitalized for two weeks.

Life continues, but so does the pain. For the Danno family, nearly 20 years have passed, but the suffering is still very real. Zina teaches in the Chicago area. Both of her children are now in college. She still lives with her parents. “That three-minute phone call changed my life,” Zina said. “It turned it completely upside down.” After the funeral and Zina had moved back to Chicago with her parents, Zina went back to work, then struggled to raise the children without her husband. “I had to be strong, I had to do it,” Zina said. “It's been difficult. Teachers in preschool don't make that much money, but I had to think about supporting our family. I had to be strong and not give up.”

Christina is studying English and philosophy at Illinois State University. She wants to attend law school. Christopher attends Harper College and hopes to attend the Illinois Institute of Arts to study art animation. Today Frank is married and has three children and lives in Macomb. Frank sells insurance at the Great Lakes Insurance Agency in Troy with his younger brother, Steve, an office that they opened together. Steve arrived at the video store after the shooting had occurred. He arrived to attend a meeting scheduled between the brothers to discuss the business, but that meeting was to take place after the store closed, Frank said. The hurt remains for Frank. At the time of the shooting, Gus was 39, Frank was 36. They shared the same birthday: Jan. 9. “It's very painful when my birthday comes,” Frank said. Their mother, now 81, does not leave the house, Frank says.

Frank stays busy with his work to keep moving forward with his life. “I try to look at the challenges in life and with business,” Frank said. The experience of losing a brother to violence and murder doesn't ever leave, Frank said. “It just doesn't go away, ever, ever, ever. You really don't know about what they (victims) are talking about until you experience it. It cuts you deeply every day. We were so close, “You lose your own brother. It happened in front of me, before my own eyes.” God gives him strength to go on, he said. “I joke and laugh, but suddenly it will hit me in a moment, I will be strong, then something will tell me that I am not in this world. It's tough, it's very tough.”

For Zina, the execution didn't bring any sense of relief. In his final words, Treesh said he would not apologize to the Danno family because he was never tried and convicted. “It's hard,” Zina said. “I don't know how to explain it. He was so heartless.” Zina believes the execution took too long. “That should have been done earlier,” Zina said. “I've been by myself raising two kids, suffering all this time.”

Frederick Treesh

ProDeathPenalty.com

Frederick Treesh, and two companions, Keisha Harth and Benjamin Brooks, departed Cleveland on August 27, 1994, to smoke crack cocaine in an Ashtabula hotel room. They returned to Cleveland later that day to purchase additional drugs. While there, the group picked up another man, Anthony Washington, who agreed to assist them. After a “couple hours” of driving and smoking cocaine, the group decided to rob a business to finance the purchase of more cocaine. Washington eventually directed the group to the Vine Street News, an adult bookstore in Eastlake, Lake County.

Treesh and Brooks were armed with a nine-millimeter handgun and a sawed-off shotgun. The handgun was loaded to maximum capacity with “Hydra-Shok” bullets, designed for penetration and maximum stopping power. Before Treesh and Brooks entered the bookstore, Harth handed Treesh a roll of duct tape that Treesh planned to use to restrain the robbery victims. Treesh and Brooks entered the Vine Street News at approximately 11:30 p.m. After glancing at a few magazines, Treesh and Brooks approached the sales counter where Louis Lauver worked. Treesh pulled out the nine-millimeter handgun, cocked it, pointed it at Lauver, and ordered him not to move or call out for help. Treesh then asked Lauver where the security guard was, and Lauver motioned toward the rear of the store. Treesh walked through swinging doors into the restricted area at the rear of the store and placed the handgun inside his pants. At this point, Lauver lost sight of Treesh.

A short time later, however, Lauver heard four gunshots coming from the rear of the store. Treesh testified that after passing through the swinging doors into the rear portion of the store, he saw two customers behind a rack, looking at magazines, and saw the store security guard, Henry Dupree, sitting in a chair, watching television. At first, neither Dupree nor the customers appeared to notice Treesh’s presence. Treesh took the gun out of his pants, poked Dupree in the shoulder with the gun, and ordered Dupree to stand up. Startled, Dupree complied. Treesh testified that he originally intended to take Dupree to the front of the store and tape him up with the clerk, but then noticed handcuffs on Dupree’s pants and decided to use them. According to Treesh, a struggle ensued when he reached for Dupree’s handcuffs, and the handgun discharged. While Treesh was in the rear of the store, Brooks ordered Lauver to empty the cash register. Lauver complied, and Brooks demanded that Lauver open the safe. As Lauver explained that this was impossible, shots rang out from the back of the store and Treesh came rapidly back through the swinging doors.

Brooks quickly left with the money from the cash register. Lauver stood by the counter with his hands in the air as Treesh headed toward the exit. Before reaching the door, Treesh brought the handgun up, pointed it at Lauver, and fired at least two shots. Bullets struck Lauver in the jaw and forearm. Treesh later testified that he aimed these shots not at Lauver, but at the telephone on the wall behind the counter. After Treesh left the store, Lauver temporarily lost consciousness, but awoke shortly thereafter and dialed 911.

Dupree, grievously injured during his encounter with Treesh at the rear of the store, managed to make his way through the swinging doors, but collapsed on the floor behind the counter. An autopsy later confirmed that Dupree died as a result of two close-range gunshot wounds in his chest. Lauver survived and testified at trial.

Paul Forner, a witness across the street at a drive-up pay telephone, saw two men enter the Vine Street News. Minutes later, Forner heard popping sounds and saw the two men leave. Forner rushed to the store and found Lauver on the phone with the police. Because Lauver was wounded in the face and had difficulty speaking, Forner gave the dispatcher a description of the suspects and their vehicle. Dale Plunkard, a store customer who hid in a viewing booth during Treesh’s encounter with Dupree, heard three or four shots in steady succession, “one right after another,” and then emerged from the booth to find Dupree unconscious. Like Forner, Plunkard was able to identify the suspects’ vehicle, which he had seen parked nearby before he entered the store.

Sergeant Ronald Stih of the Euclid Police Department received a dispatch concerning the armed robbery. Stih scanned traffic on Interstate 90, spotted a vehicle matching the dispatcher’s description, and followed it off the interstate. Officer Frederick Stoldt of the Euclid Police Department also pursued the suspects’ car. The vehicles attained speeds of over sixty miles an hour in a residential neighborhood. As Washington drove the suspects’ car, Treesh shot out its rear window, and both Brooks and Treesh fired shots through the opening and over the tops of the cruisers to discourage pursuit. Eventually, however, Washington lost control of the car and crashed. According to Sergeant Stih, Treesh assumed an “action stance” as he got out of the car and pointed his handgun at Stih. Treesh fired the weapon at Stih and Stoldt at least three times. Stih retreated and radioed for help. Treesh fired additional shots while running away with Harth. Brooks remained in the car and was immediately apprehended. Officers Michael Janusczak and Harold Pretel of the Cleveland Police Department arrived at the scene, obtained descriptions of Treesh and Harth, and pursued the two suspects on foot. Eventually, the officers approached a garage, where Pretel saw Treesh aiming a gun at him. Pretel ordered Treesh to drop the weapon. Treesh threw the gun down, but attempted to flee over a fence. Several officers confronted Treesh as he jumped over the fence and ordered him to the ground. Officer Janusczak testified that as he handcuffed Treesh, he immediately advised Treesh of his Miranda rights.

The police transported Treesh first to Euclid, then to the Eastlake Police Department. On the way to Eastlake, Treesh heard on the police radio that Dupree had died. Treesh later testified that he was not aware prior to that time that he had even shot Dupree. Treesh arrived at Eastlake just after 2:00 a.m. on August 28. Treesh testified that he felt “high” and “paranoid” at that time. Lieutenant Thomas Doyle of the Eastlake Police Department and Federal Bureau of Investigation Special Agent Robert Alvord conducted a series of interviews with Treesh and Brooks at Eastlake. Some of these interviews were captured on the stationhouse videotape recorder. Portions of these videotapes, which contained several inculpatory statements, were later played for the jury.

At approximately 2 p.m. on August 28, Doyle confronted Treesh and Brooks with the store clerk’s statement, and the suspects refused to discuss their participation in the Vine Street News robbery any further without an attorney present. Treesh and Brooks continued to discuss their involvement in other crimes. The Lake County Grand Jury returned a seven-count indictment against Treesh on August 29. A Lake County jury found Treesh guilty of one count of aggravated murder with two aggravating circumstances, two counts of attempted aggravated murder, one count of felonious assault, and one count of aggravated robbery. Each of these five counts included a firearm specification. The court entered a nolle prosequi on count six, which had alleged that Treesh failed to comply with the order or signal of a police officer. Treesh pleaded guilty to count seven, carrying a weapon while under a disability. At the conclusion of the penalty phase, the jury recommended that the court sentence Treesh to death. The trial court adopted the jury’s recommendation and sentenced Treesh accordingly.

Thomas G. Lobe and John P. Keshock, for appellant.

COOK, J.

Appellant, Frederick Treesh, and two companions, Keisha Harth and Benjamin Brooks, departed Cleveland on August 27, 1994, to smoke crack cocaine in an Ashtabula hotel room. They returned to Cleveland later that day to purchase additional drugs. While there, the group picked up another man, Anthony Washington, who agreed to assist them. After a "couple hours" of driving and smoking cocaine, the group decided to rob a business to finance the purchase of more cocaine.

Washington eventually directed the group to the Vine Street News, an adult bookstore in Eastlake, Lake County. Treesh and Brooks were armed with a nine-millimeter handgun and a sawed-off shotgun. The handgun was loaded to maximum capacity with "Hydra-Shok" bullets, designed for penetration and maximum stopping power. Before Treesh and Brooks entered the bookstore, Harth handed Treesh a roll of duct tape that Treesh planned to use to restrain the robbery victims.

Treesh and Brooks entered the Vine Street News at approximately 11:30 p.m. After glancing at a few magazines, Treesh and Brooks approached the sales counter where Louis Lauver worked. Treesh pulled out the nine-millimeter handgun, cocked it, pointed it at Lauver, and ordered him not to move or call out for help. Treesh then asked Lauver where the security guard was, and Lauver motioned toward the rear of the store. Treesh walked through swinging doors into the restricted area at the rear of the store and placed the handgun inside his pants. At this point, Lauver lost sight of Treesh. A short time later, however, Lauver heard four gunshots coming from the rear of the store.

Treesh testified that after passing through the swinging doors into the rear portion of the store, he saw two customers behind a rack, looking at magazines, and saw the store security guard, Henry Dupree, sitting in a chair, watching television. At first, neither Dupree nor the customers appeared to notice Treesh's presence. Treesh took the gun out of his pants, poked Dupree in the shoulder with the gun, and ordered Dupree to stand up. Startled, Dupree complied. Treesh testified that he originally intended to take Dupree to the front of the store and tape him up with the clerk, but then noticed handcuffs on 461Dupree's pants and decided to use them. According to Treesh, a struggle ensued when he reached for Dupree's handcuffs, and the handgun discharged.

While Treesh was in the rear of the store, Brooks ordered Lauver to empty the cash register. Lauver complied, and Brooks demanded that Lauver open the safe. As Lauver explained that this was impossible, shots rang out from the back of the store and Treesh came rapidly back through the swinging doors. Brooks quickly left with the money from the cash register. Lauver stood by the counter with his hands in the air as Treesh headed toward the exit. Before reaching the door, Treesh brought the handgun up, pointed it at Lauver, and fired at least two shots. Bullets struck Lauver in the jaw and forearm. Treesh later testified that he aimed these shots not at Lauver, but at the telephone on the wall behind the counter.

After Treesh left the store, Lauver temporarily lost consciousness, but awoke shortly thereafter and dialed 911. Dupree, grievously injured during his encounter with Treesh at the rear of the store, managed to make his way through the swinging doors, but collapsed on the floor behind the counter. An autopsy later confirmed that Dupree died as a result of two close-range gunshot wounds in his chest. Lauver survived and testified at trial.

Paul Forner, a witness across the street at a drive-up pay telephone, saw two men enter the Vine Street News. Minutes later, Forner heard popping sounds and saw the two men leave. Forner rushed to the store and found Lauver on the phone with the police. Because Lauver was wounded in the face and had difficulty speaking, Forner gave the dispatcher a description of the suspects and their vehicle. Dale Plunkard, a store customer who hid in a viewing booth during Treesh's encounter with Dupree, heard three or four shots in steady succession, "one right after another," and then emerged from the booth to find Dupree unconscious. Like Forner, Plunkard was able to identify the suspects' vehicle, which he had seen parked nearby before he entered the store.

Sergeant Ronald Stih of the Euclid Police Department received a dispatch concerning the armed robbery. Stih scanned traffic on Interstate 90, spotted a vehicle matching the dispatcher's description, and followed it off the interstate. Officer Frederick Stoldt of the Euclid Police Department also pursued the suspects' car. The vehicles attained speeds of over sixty miles an hour in a residential neighborhood. As Washington drove the suspects' car, Treesh shot out its rear window, and both Brooks and Treesh fired shots through the opening and over the tops of the cruisers to discourage pursuit. Eventually, however, Washington lost control of the car and crashed.

According to Sergeant Stih, Treesh assumed an "action stance" as he got out of the car and pointed his handgun at Stih. Treesh fired the weapon at Stih and Stoldt at least three times. Stih retreated and radioed for help. Treesh fired 462additional shots while running away with Harth. Brooks remained in the car and was immediately apprehended.

Officers Michael Janusczak and Harold Pretel of the Cleveland Police Department arrived at the scene, obtained descriptions of Treesh and Harth, and pursued the two suspects on foot. Eventually, the officers approached a garage, where Pretel saw Treesh aiming a gun at him. Pretel ordered Treesh to drop the weapon. Treesh threw the gun down, but attempted to flee over a fence. Several officers confronted Treesh as he jumped over the fence and ordered him to the ground. Officer Janusczak testified that as he handcuffed Treesh, he immediately advised Treesh of his Miranda rights.

The police transported Treesh first to Euclid, then to the Eastlake Police Department. On the way to Eastlake, Treesh heard on the police radio that Dupree had died. Treesh later testified that he was not aware prior to that time that he had even shot Dupree.

Treesh arrived at Eastlake just after 2:00 a.m. on August 28. Treesh testified that he felt "high" and "paranoid" at that time. Lieutenant Thomas Doyle of the Eastlake Police Department and Federal Bureau of Investigation Special Agent Robert Alvord conducted a series of interviews with Treesh and Brooks at Eastlake. Some of these interviews were captured on the stationhouse videotape recorder. Portions of these videotapes, which contained several inculpatory statements, were later played for the jury. At approximately 2 p.m. on August 28, Doyle confronted Treesh and Brooks with the store clerk's statement, and the suspects refused to discuss their participation in the Vine Street News robbery any further without an attorney present. Treesh and Brooks continued to discuss their involvement in other crimes.

The Lake County Grand Jury returned a seven-count indictment against Treesh on August 29. A Lake County jury found Treesh guilty of one count of aggravated murder with two aggravating circumstances, two counts of attempted aggravated murder, one count of felonious assault, and one count of aggravated robbery. Each of these five counts included a firearm specification. The court entered a nolle prosequi on count six, which had alleged that Treesh failed to comply with the order or signal of a police officer. Treesh pleaded guilty to count seven, carrying a weapon while under a disability.

At the conclusion of the penalty phase, the jury recommended that the court sentence Treesh to death. The trial court adopted the jury's recommendation and sentenced Treesh accordingly. Treesh timely appealed the decision of the trial court to the Lake County Court of Appeals, which affirmed his convictions and death sentence. In dissent, Judge O'Neill concluded that Treesh had never received proper Miranda warnings, and that absent the inferences drawn from 463Treesh's improperly obtained statements, the state could not prove the lack of mitigating factors beyond a reasonable doubt.

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

Appellant presents twenty-one propositions of law for our consideration. For the reasons set forth below, we affirm the judgment of the court of appeals and uphold the sentence of death.

I. Summarily Rejected Propositions of Law

R.C. 2929.05 does not require this court to address and discuss in opinion form each proposition of law raised in a capital case. State v. Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099, 1104. Accordingly, we summarily overrule those propositions of law that have been previously resolved by this court and address only those issues that warrant discussion.^[1] Id.

II. Guilt-Phase Issues

A. Pretrial Publicity/Venue

In his first proposition of law, Treesh contends that he was entitled to a change of venue because "the incident in question [was] highly publicized locally and nationally." Treesh relies on Crim.R. 18(B), which provides that "[u]pon the motion of any party or upon its own motion the court may transfer an action * * * when it appears that a fair and impartial trial cannot be held in the court in which the action is pending." Although Treesh claims to have filed a motion for change of venue, we are unable to locate any such motion in the record. Nevertheless, because the trial docket contains an entry denying a motion for change of venue, we shall address this proposition on its merits.

As this court has noted, Crim.R. 18(B) does not require a change of venue merely because of extensive pretrial publicity. State v. Landrum (1990), 53 Ohio St.3d 107, 116-117, 559 N.E.2d 710, 722-723. Any decision on a change of venue rests in the sound discretion of the trial court. Id. at 116, 559 N.E.2d at 722. "`[A] careful and searching voir dire provides the best test of whether prejudicial 464pretrial publicity has prevented obtaining a fair and impartial jury from the locality.'" Id. at 117, 559 N.E.2d at 722, quoting State v. Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 262, 357 N.E.2d 1035, 1051, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155. A defendant claiming that pretrial publicity has denied him a fair trial must show that one or more jurors were actually biased. Mayola v. Alabama (C.A.5, 1980), 623 F.2d 992, 996. Only in rare cases may prejudice be presumed. Id. at 997; see, also, Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554-555, 96 S.Ct. 2791, 2800-2801, 49 L.Ed.2d 683, 694-695.

In Landrum, supra, we concluded that the trial court did not abuse its discretion in denying a Crim.R. 18(B) motion even though "virtually all of the prospective jurors had read or heard media reports about the case." Id. at 116, 559 N.E.2d at 722. Landrum cited no specific instances of prejudicial publicity, few jurors recalled learning specific details of the case from pretrial publicity, and none indicated that exposure to publicity would impair his or her ability to deliberate in a fair and impartial manner. Id. at 116-117, 559 N.E.2d at 722-723.

Like Landrum, Treesh has failed to show that the publicity in this case was so pervasive that it impaired the ability of the empaneled jurors to deliberate fairly and impartially. During voir dire, the trial court individually questioned prospective jurors about their exposure to pretrial publicity. Although most empaneled jurors had read or seen articles or television programs about the case, each had been exposed to comparatively little pretrial publicity. Cf. State v. Lundgren (1995), 73 Ohio St.3d 474, 479-480, 653 N.E.2d 304, 313-314. Moreover, each empaneled juror confirmed that he or she had not formed an opinion about the guilt or innocence of the accused, or could put aside any opinion, and that he or she could render a fair and impartial verdict based on the law and evidence. Accordingly, appellant's first proposition of law lacks merit.

B. Prosecutorial Misconduct

In his seventh and fourteenth propositions of law, Treesh claims that improper statements by the prosecutor during voir dire and closing arguments denied him a fair trial. To address these propositions, we must first determine whether the prosecutor's remarks were improper; if so, we then consider whether the remarks prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. We evaluate the allegedly improper statements in the context of the entire trial. State v. Keenan (1993), 66 Ohio St.3d 402, 410, 613 N.E.2d 203, 209. An improper comment does not affect a substantial right of the accused if it is clear beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments. Smith, supra, 14 Ohio St.3d at 15, 14 OBR at 319, 470 N.E.2d at 885.

4651. Improper Statements During Voir Dire

Treesh alleges that the prosecutor twice committed misconduct during voir dire. First, during the general voir dire, the prosecutor stated to the potential jurors, "Another thing that would prevent either the State of Ohio or the Defendant from having a fair trial, if you are selected on the jury, is to consider sympathy, sympathy doesn't have a part in the Courtroom. Does everybody understand that, sympathy can't enter your deliberations either?" Defense counsel objected, and the court sustained the objection.

We agree with the court of appeals that this question by the prosecutor, in spite of defense counsel's sustained objection, was not improper in this context. In State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph three of the syllabus, this court held that an instruction to the jury during sentencing to exclude bias, sympathy, and prejudice is appropriate to ensure that the jurors apply the law, not their emotions. The trial court in this case gave just such an instruction prior to opening arguments. Because sympathy is "irrelevant to the duty of the jurors," State v. Lorraine (1993), 66 Ohio St.3d 414, 418, 613 N.E.2d 212, 217, the prosecutor's request was literally correct. Accordingly, the prosecutor's request to the jurors during voir dire to follow the law and disregard sympathy cannot be the basis for a claim of prosecutorial misconduct.

Treesh next contends that the prosecutor improperly asked the jurors, "[I]f you are convinced beyond a reasonable doubt, according to the law that the judge gives you, the facts of this case, the Defendant is guilty, will you give me your word if that happens, that is proven, you will all return a verdict of guilty?" Defense counsel objected, and the trial court sustained the objection. The court of appeals determined that the prosecutor's request to the jury to make this promise was improper, but concluded that Treesh suffered no prejudice. In his brief to this court, Treesh contends that the prosecutor's request "constituted constitutional misconduct creating an impartial [sic] jury," but fails to articulate any basis for that contention. Assuming, without deciding, that this statement by the prosecutor was improper, Treesh has failed to demonstrate how the question affected a substantial right. Accordingly, we overrule appellant's seventh proposition of law.

2. Improper Statements During Closing Argument

In his fourteenth proposition of law, Treesh argues that several improper comments by the prosecutor during the state's summation denied him a fair trial. Treesh asks this court to review the prosecutor's statements under the plain-error standard set forth in Crim.R. 52(B), but defense counsel preserved an objection to each of the comments addressed in Treesh's merit brief.

466We have previously held that the prosecution is entitled to a certain degree of latitude in summation. State v. Grant (1993), 67 Ohio St.3d 465, 482, 620 N.E.2d 50, 68; State v. Liberatore (1982), 69 Ohio St.2d 583, 589, 23 O.O.3d 489, 493, 433 N.E.2d 561, 566. The prosecutor may draw reasonable inferences from the evidence presented at trial, and may comment on those inferences during closing argument. State v. Smith (1997), 80 Ohio St.3d 89, 111, 684 N.E.2d 668, 689. We view the state's closing argument in its entirety to determine whether the allegedly improper remarks were prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17 O.O.3d 92, 97, 407 N.E.2d 1268, 1273.

First, Treesh challenges the prosecutor's statement to the jury that Treesh wanted them to believe that he unintentionally shot at the police officers who pursued him. Specifically, the prosecutor said, "It's a story that he concocted * * *. He wants each one of you to believe that he accidentally killed Henry Dupree, that he mistakenly shot Louis Lauver in the head, that he unintentionally shot at police officers at E. 174th and Grovewood—." (Emphasis added.) We agree with the court of appeals that the last clause of these remarks was improper. Treesh himself admitted firing his weapon "at the police, over the tops of the cruisers," and the prosecutor could not deliberately misstate the evidence during summation in order to convince the jury that Treesh "concocted" stories or that his testimony generally lacked credibility. See State v. Waddy (1992), 63 Ohio St.3d 424, 436, 588 N.E.2d 819, 829. Even so, the trial court sustained defense counsel's objection, and Treesh has not demonstrated how this comment prejudiced him.

Second, the prosecutor told the jury that Treesh knew that there was an armed security guard in the store. The court of appeals agreed with appellant and the trial court that this statement was improper, for it found "no evidence that appellant knew of the presence of a security guard before he entered the Vine Street News. In fact, the only testimony relating to this point is that Lauver informed appellant of the existence of the guard." We disagree. At trial, Lauver testified on direct examination that Treesh immediately demanded to know the whereabouts of the "armed security guard." Lauver reiterated this testimony on cross-examination, insisting that Treesh asked specifically about the presence of an armed guard. If the jury believed this portion of Lauver's testimony, it could reasonably infer that Treesh knew about the presence of an armed security guard before he entered the store. Accordingly, the prosecutor's assertion constituted a permissible comment based on a reasonable inference from trial evidence. See State v. Grant, 67 Ohio St.3d at 482, 620 N.E.2d at 68. Assuming, arguendo, that this statement was improper, the trial court sustained defense counsel's objection.

Third, Treesh objects to the prosecutor's assertion that "* * * we can't tell you exactly what happened back there. There is only two people who knew, and 467one of them is dead right now." Like the court of appeals, we see no impropriety in this statement. Testimony at trial revealed that there were no eyewitnesses to the confrontation between Treesh and Dupree in the rear of the store, and Dupree died immediately thereafter. Though witness Plunkard was in a nearby viewing booth during Treesh's encounter with Dupree and heard gunshots, the booth's door remained closed during the confrontation. Indeed, the prosecutor's comment arguably helped the defense by underscoring a potential weakness in the state's aggravated murder case. Regardless, the trial court sustained defense counsel's objection, and Treesh has failed to demonstrate how this statement prejudiced him.

Fourth, Treesh contends that the prosecutor "attempted to make a lay witness into an expert on gun residue" in order to dispute the defense's theory that Treesh's gun accidentally discharged during a struggle with Dupree. Treesh refers to the prosecutor's summary of the testimony of Sharon Rosenberg, a forensic scientist: "Sharon Rosenberg testified how the whole front of [Treesh's] T-shirt had no evidence of any type of gun powder residue, fouling, reddish nitrates, yet this gun supposedly is between the two of them the whole time, going off six times, you've got the [one] falling on the other, surely he'd have some fouling or some kind of gunshot residue on his shirt. There is none—." Like the court of appeals, we do not find this statement improper. The prosecutor neither misstated Rosenberg's testimony nor exaggerated her credentials. Instead, the prosecutor merely suggested a reasonable inference that the jury could draw from Rosenberg's testimony and other trial evidence. "Prosecutors are entitled to latitude as to what the evidence has shown and what inferences can reasonably be drawn from the evidence." Smith, supra, 80 Ohio St.3d at 111, 684 N.E.2d at 689. Regardless, the trial court sustained defense counsel's objection to this statement and Treesh again has failed to demonstrate how this statement affected a substantial right.

Fifth, Treesh claims that the prosecutor improperly commented upon the truth of appellant's testimony by stating, "I suggest to you that the Defendant told the truth twice. He told the truth when he said he went up and I plugged—excuse me—not plugged." We agree with the court of appeals that the prosecutor's statement was improper, since Treesh testified only that he "poked" Dupree. But even though the prosecutor mistakenly used the word "plugged" instead of "poked," the prosecutor corrected himself, the trial court sustained defense counsel's objection, the court provided a curative instruction, and Treesh has failed to demonstrate that he suffered prejudice as a result of the prosecutor's unfinished thought.

Sixth, Treesh contends that the prosecutor committed prejudicial misconduct by suggesting to the jury, "If you are not satisfied with the way the investigation 468went, or do you think it could have been done better, give us a call after the trial is over, drop us a letter—." The trial court sustained defense counsel's objection. Like the court of appeals, we deem this statement improper and not based upon the evidence. Even so, we agree with the court below that it did not impair appellant's right to a fair trial.

We have reviewed the closing argument in its entirety to determine whether prejudicial error occurred. State v. Frazier (1995), 73 Ohio St.3d 323, 342, 652 N.E.2d 1000, 1016; Moritz, supra, 63 Ohio St.2d at 157, 17 O.O.3d at 97, 407 N.E.2d at 1273. We conclude that the few improper statements made by the prosecutor during closing arguments did not permeate the state's argument so as to deny Treesh a fair trial. See State v. Landrum, supra, 53 Ohio St.3d at 110-113, 559 N.E.2d at 716-719; State v. Bey (1999), 85 Ohio St.3d 487, 495, 709 N.E.2d 484, 494. The trial court sustained each of defense counsel's objections. Accordingly, we overrule appellant's fourteenth proposition of law.

C. Failure to Excuse Juror Volke for Cause

In his eighth proposition of law, Treesh contends that the inclusion of juror Lynn Volke denied him his constitutional right to a fair and impartial jury due to Volke's "unbending position" in support of the death penalty. For the following reasons, we disagree. R.C. 2945.25(C) provides that a prospective juror in a capital punishment case may be challenged 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. A prospective juror's conscientious or religious opposition to the death penalty in and of itself is not grounds for a challenge for cause. All parties shall be given wide latitude in voir dire questioning in this regard."

We have held that "`[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. * * * [A] capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.'" (Emphasis added.) State v. Williams (1997), 79 Ohio St.3d 1, 6, 679 N.E.2d 646, 653, quoting Morgan v. Illinois (1992), 504 U.S. 719, 729, 112 S.Ct. 2222, 2229-2230, 119 L.Ed.2d 492, 502-503. This court has also noted, however, that even if a juror shows a predisposition in favor of imposing the death penalty, the trial court does not abuse its discretion in overruling a challenge for cause if the juror later states that she will follow the law and the court's instructions. State v. Mack (1995), 73 Ohio St.3d 502, 510, 653 N.E.2d 329, 336.

Juror Volke did initially reveal a predisposition in favor of the death penalty. When the court questioned Volke regarding her opinion of the death penalty, Volke said, "I believe in it." When the assistant prosecutor asked Volke if the state's decision to seek the death penalty offended her in any way, Volke replied, "No, not at all." Defense counsel then asked Volke why she believed in the death penalty, and Volke responded, "I think if someone takes another person's life they should give their life up." When defense counsel continued, "And would that be—do you believe that would be in every case or in some cases?" Volke replied, "No, in every case." (Emphasis added.)

If the voir dire of juror Volke had simply ended here, we assume, without deciding, that her inclusion in the jury panel would have violated R.C. 2945.25(C) and this court's decision in Williams, supra, 79 Ohio St.3d 1, 679 N.E.2d 646. Our Williams decision, after all, precludes the state from executing an offender when one of the empaneled jurors would "automatically vote for the death penalty in every case." (Emphasis added.) Id. at 6, 679 N.E.2d at 653. But as voir dire continued, Volke stated that she had been confused by earlier questions and insisted that she would follow the law and the court's instructions. After being asked several searching follow-up questions by the court, the assistant prosecutor, and defense counsel, juror Volke specifically indicated on more than one occasion that she could consider mitigating circumstances and impose a lesser sentence under appropriate circumstances. Juror Volke's inclusion in the jury, therefore, did not violate Williams and was consistent with this court's decision in State v. Mack, supra. Accordingly, we overrule appellant's eighth proposition of law.

D. Admissibility of Statements Following Arrest

Before trial, Treesh filed a motion to suppress all statements he had made while in the custody of the Eastlake Police Department. The motion also included a challenge to the department's "show-up" identification. The trial court held a hearing on the motion to suppress, at which Treesh's attorney withdrew his challenge to the show-up identification. After the suppression hearing, the trial court denied the motion to suppress. Treesh now contends that the evidence at the suppression hearing established "without doubt" that he never received proper Miranda warnings prior to his custodial interrogation and that the interrogation persisted despite his request for counsel. We disagree on both counts.

1. Adequacy of Miranda Warnings

The United States Supreme Court has recently reaffirmed its decision in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, concluding that Miranda "announced a constitutional rule," and that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States (2000), 470 530 U.S. 428, ___, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405, 419. Accordingly, the admissibility of any statement given during custodial interrogation of a suspect depends on whether the police provided the suspect with four warnings: (1) that the suspect has the right to remain silent, (2) that anything he says can be used against him in a court of law, (3) that he has the right to the presence of an attorney, and (4) that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. Id., citing Miranda, supra, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

It is well established that a defendant who is subjected to custodial interrogation must be advised of his or her Miranda rights and make a knowing and intelligent waiver of those rights before statements obtained during the interrogation will be admissible. It is also well established, however, that a suspect who receives adequate Miranda warnings prior to a custodial interrogation need not be warned again before each subsequent interrogation. Wyrick v. Fields (1982), 459 U.S. 42, 48-49, 103 S.Ct. 394, 396-397, 74 L.Ed.2d 214, 219; State v. Barnes (1986), 25 Ohio St.3d 203, 208, 25 OBR 266, 270, 495 N.E.2d 922, 926; see, also, State v. Brewer (1990), 48 Ohio St.3d 50, 58-59, 549 N.E.2d 491, 500-501. Police are not required to readminister the Miranda warnings when a relatively short period of time has elapsed since the initial warnings. State v. Mack, 73 Ohio St.3d at 513-514, 653 N.E.2d at 338. Courts look to the totality of the circumstances when deciding whether initial warnings remain effective for subsequent interrogations. State v. Roberts (1987), 32 Ohio St.3d 225, 232, 513 N.E.2d 720, 725.

In Barnes, supra, the defendant sought to suppress inculpatory statements made twenty-four hours after being advised of his Miranda rights. We concluded that "[a]lthough re-reading appellant's rights to him * * * would have been an extra precaution, it is not one mandated by the Ohio or United States Constitutions." Id., 25 Ohio St.3d at 208, 25 OBR at 270, 495 N.E.2d at 926. In Brewer, supra, the suspect received Miranda warnings from one police department early in the evening and made inculpatory statements to officers of a different police department the following day without being readvised of his Miranda rights. We noted that while a "great deal of time" had elapsed since the original Miranda warnings, the subsequent interrogation was "part of a series of discussions" that appellant had with police, during which the appellant had indicated his awareness of his rights. Id., 48 Ohio St.3d at 60, 549 N.E.2d at 501. Accordingly, based on the totality of the circumstances, no new warnings were required. Id.

In this case, Treesh was arrested just after midnight on the night of the robbery. The arresting officer, then a five-year veteran of the Cleveland Police Department, testified that he advised Treesh of his Miranda rights as Treesh 471was being handcuffed. When asked to specify exactly what he said, the officer recited the four warnings required by Miranda. The officer testified that he asked Treesh if he understood those rights. When Treesh did not respond, the officer began to repeat the warnings until Treesh "turned and said, `Yeah, yeah, I know.'" On cross-examination, Treesh's attorney questioned whether the officer had, in fact, recited the appropriate warnings, and the officer responded, "Sir, I make it a point to mirandize everybody I arrest." For his part, Treesh testified at the suppression hearing that no one administered Miranda rights at the scene of his arrest.

Treesh arrived at the Eastlake Police Department less than three hours later and was immediately taken to a booking room. Lieutenant Thomas Doyle testified that he was in the booking room when Treesh entered, and that he immediately advised Treesh of his Miranda rights. The booking room was equipped with a video recorder. According to the transcript of the voiceenhanced booking-room videotape, however, Doyle's rewarning was incomplete. Doyle asked Treesh, "Do you understand your Miranda rights? I'm going to ask you some questions for the next hour or so, two hours or three hours. You have the right to answer the questions that I ask. Stop me any time. [Inaudible] Do you understand that? Okay." According to Doyle, Treesh did not appear under the influence of drugs or alcohol, and indicated a willingness to talk.

Treesh agreed to talk to Doyle and was questioned, with interruptions, for the next several hours. At 7:40 that morning, an FBI agent came to Eastlake to question Treesh. He advised Treesh of his rights, and asked him if he wanted to waive those rights. Treesh read the waiver form and signed it, and later signed another waiver form in which Doyle was listed as the warning officer. On at least two occasions during this series of interviews, Treesh verbally indicated an awareness of his rights. When Doyle woke Treesh at 6:57 a.m., he asked Treesh to recite his rights, and Treesh said, "I have the right to remain silent. Anything I say can and will be used against me in a court of law, blasé, blasé, blasé." [Sic.] Later, Doyle attempted to warn him again of his rights, and Treesh said, "You told me this before. * * * I already know all my rights."

The dissenting judge on the appellate panel concluded, and we agree, that the warnings Doyle first conveyed to Treesh upon his arrival at Eastlake were "a far cry from the information required to be conveyed to an accused. Appellant's `rights' did not include an obligation, as stated to him at the Eastlake Police Station, to answer the officer's questions." O'Neill, J., dissenting, at 2. Doyle misstated Treesh's right to silence and neglected to inform Treesh that any statement could be used against him in court. And Doyle failed to specifically mention that Treesh had the right to have an attorney present during interrogation.

472Even so, we disagree with the dissenting judge's conclusion that Doyle's inadequate readvisement of rights at Eastlake compels reversal. On the authority of Roberts, Barnes, and Brewer, supra, we agree instead with the majority of the court of appeals that "the first partial re-warning given by Doyle at approximately 2:28 a.m. was sufficient in light of [the arresting officer's] earlier warning" that occurred just two hours before Treesh's arrival at Eastlake. Accord Mack, supra, 73 Ohio St.3d at 512-514, 653 N.E.2d at 338; State v. Groves (Mo.1983), 646 S.W.2d 82; Evans v. McCotter (C.A.5, 1986), 790 F.2d 1232, 1237-1238. Though the testimony at the suppression hearing conflicted as to whether the arresting officer actually recited the Miranda warnings, the trial court implicitly found the arresting officer's testimony about the arrest more credible than Treesh's. Weight of evidence and credibility of witnesses are primarily for the trier of fact—a principle applicable to suppression hearings as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584. We will not substitute our judgment for that of the trial court on this issue. The full arrest warning, viewed in conjunction with the partial rewarnings at the interrogations, indicates that Treesh was sufficiently apprised of his Miranda rights.

2. Voluntariness of Waiver

Treesh contends that regardless of the adequacy of the Miranda warnings, his waiver of those rights was not voluntary. "While voluntary waiver and voluntary confession are separate issues, the same test is used to determine both, i.e., whether the action was voluntary under the totality of the circumstances." State v. Clark (1988), 38 Ohio St.3d 252, 261, 527 N.E.2d 844, 854. "In Colorado v. Connelly (1986), 479 U.S. 157 [107 S.Ct. 515, 93 L.Ed.2d 473], the court held that `police overreaching' is a prerequisite to a finding of involuntariness. Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis." Id. Accordingly, we need not assess the totality of the circumstances unless we find that the tactics used by the detectives were coercive. Id.

In Clark, supra, the appellant alleged that his mental condition negated his capacity to act voluntarily. This court determined, however, that assessment of the totality of the circumstances was unnecessary. Id. Officers allowed the appellant to use the restroom, provided coffee and cigarettes, and made no threats or promises. Though assessment of the totality of the circumstances was unnecessary, this court examined the totality of the circumstances anyway and concluded that appellant voluntarily gave his waiver and confession. Id. Though the defense contended that brain damage from a suicide attempt impaired 73appellant's ability to make choices, the appellant acknowledged several times that he understood his rights and signed a written waiver. Id.

Here, Treesh contends that his "tiredness," and "cocaine high" impaired his capacity to make informed decisions during the interrogation and that the officers never once asked him if he wanted to stop and rest. But like the court of appeals, we find no coercive police conduct that would trigger the totality-of-the-circumstances test. Testimony at the suppression hearing reveals that Treesh was permitted to sleep during breaks in the interrogation. The transcript of the booking-room videotape confirms that Treesh spoke coherently and was aware of his surroundings. Treesh was offered coffee and other refreshments on multiple occasions, as well as lotion soap and a disinfectant for a small wound. Like the appellant in Clark, supra, Treesh read and signed a written waiver and indicated on several occasions that he understood his rights. Assuming, arguendo, that assessment of the totality of the circumstances is necessary in this case, we cannot say that appellant's waiver was improperly obtained.

3. Minnick/Edwards —Request for Counsel

Treesh also argues that questioning continued despite requests for counsel. It is axiomatic that "an accused who requests an attorney, `having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'" Minnick v. Mississippi (1990), 498 U.S. 146, 150, 111 S.Ct. 486, 489, 112 L.Ed.2d 489, 496, quoting Edwards v. Arizona (1981), 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386; see, also, State v. Dunlap (1995), 73 Ohio St.3d 308, 313, 652 N.E.2d 988, 994; State v. Knuckles (1992), 65 Ohio St.3d 494, 605 N.E.2d 54, paragraph one of the syllabus. In Knuckles, this court noted that the threshold inquiry is "`whether the accused actually invoked his right to counsel.'" Id. at 496, 605 N.E.2d at 55, quoting Smith v. Illinois (1984), 469 U.S. 91, 95, 105 S.Ct. 490, 492-493, 83 L.Ed.2d 488, 493-494.

Here, Treesh testified that he asked for counsel immediately after his arrival at Eastlake. According to Doyle, however, Treesh never requested an attorney until 2 p.m., when Doyle confronted Treesh and Brooks with the store clerk's statement. At that point, according to Doyle, Treesh and Brooks conferred, and "decided that they wanted to have a prosecutor and an attorney present * * * and they'd only give statements that was [sic] possible to get out of the death penalty." Doyle responded that there would be no deals struck in return for a statement, and that no prosecutor was coming down. Treesh and Brooks then refused to discuss the Eastlake crime any further, but continued to discuss other matters.

474Treesh's desire for the presence of an attorney appeared to be for the limited purpose of making a deal with the prosecutor to avoid the death penalty. Assuming that Treesh's request was an invocation of counsel for purposes of Edwards, the interrogating officers treated it as such. The officers did not attempt to elicit any further statements regarding the Eastlake case from Treesh, and Treesh willingly spoke about other crimes.

E. Interrogation/Destruction of Evidence

In his third proposition of law, appellant reasserts two claims that originally appeared in an unsuccessful pretrial motion to dismiss. Treesh claims that (1) structural error occurred when he was interviewed in jail by a corrections officer without counsel present, and (2) the state's failure to preserve certain evidence from the scene of the crime denied him a fair trial. For the following reasons, we disagree.

1. Conversations with Corrections Officer Bowersock

Regarding Treesh's first contention, defense counsel urged the court at a pretrial conference to dismiss the case on the basis of structural error. The defense contended that the Eastlake Police Department arranged for corrections officer Chris Bowersock (also a part-time Eastlake police officer) to interview Treesh without counsel present and obtain information that the state would later use against Treesh, knowing full well that Treesh was already represented by counsel. At a pretrial conference on the motion, the prosecutor professed ignorance about any such arrangement and insisted that Treesh initiated all conversations with Bowersock and discussed only crimes unrelated to the Eastlake robbery.

Though the trial court expressed concerns about the propriety of Bowersock's conversations with Treesh, the court ultimately denied appellant's motion to dismiss, noting that it had already granted appellant's motion in limine to prohibit the state from permitting "any witness to address any questions concerning other acts other than the Eastlake crime." We agree with the trial court's resolution of this issue. The trial court excluded evidence of crimes committed by Treesh in other states, the state did not attempt to introduce any testimony by Bowersock in its case in chief, and the state did not introduce any of Treesh's statements to Bowersock. Assuming, arguendo, that Bowersock's conversations with Treesh were improper, Treesh suffered no prejudice.

2. Failure to Preserve Evidence

Turning to Treesh's evidentiary claims, defense counsel alleged that the police either destroyed or failed to preserve certain key pieces of evidence from the scene of the robbery. These included a nylon holster, a ramp, several wall panels 475and doors, Dupree's handcuffs, and Dupree's handgun. It is axiomatic that "[s]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215, 218. "In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed 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. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies regardless of whether the evidence is specifically, generally or not at all requested by the defense." State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus, following United States v. Bagley (1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood (1988), 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289. In the instant case, there is no support in the record for Treesh's allegations that the state suppressed material evidence or acted in bad faith in failing to preserve potentially useful evidence.

The nylon holster was inadvertently destroyed by Daniel Terriaco, the manager of the Vine Street News, after the police had finished processing the scene. By that time, however, an employee of the Lake County Regional Forensic Laboratory had already photographed the holster and its location on the floor. According to Terriaco, he was distraught by the large amounts of blood in the store, found the holster while cleaning, and threw it away without realizing what it was. Mitchell Wisniewski, a firearms expert employed by the Lake County Regional Forensic Laboratory, testified that he chose not to collect the holster from the scene because he would not have been performing comparison tests on it, and because it was his understanding that Eastlake police would collect the holster after the Lake County crime lab finished processing the crime scene. Apparently, Eastlake never retrieved the holster. Even so, we perceive no prejudice to appellant resulting from the inadvertent destruction of the holster. Photographs taken by David Green of the Lake County crime lab were disclosed to defense counsel during discovery and utilized by the defense at trial.

Appellant also alleges that he was denied a fair trial because the state failed to maintain as evidence a floor ramp that connected the rear of the Vine Street News with the video arcade area. Lieutenant Doyle testified that he had returned to the Vine Street News after the crime in order to investigate Treesh's claim that Dupree had fired a weapon at him. At that time, Doyle recovered a spent nine-millimeter bullet from the ramp and turned it over to the Lake County 476crime lab. Later, the store manager destroyed the ramp while cleaning the store. We discern no prejudice to Treesh resulting from the store manager's destruction of the ramp. Photographs depicting the ramp and indicating the location where the bullet penetrated the ramp were introduced at trial and adequately preserved the ramp's evidentiary value. See Crim.R. 26. The state disclosed still photographs and a videotape of the entire crime scene to defense counsel prior to trial, as well as the spent bullets and casings recovered from the scene. Moreover, testimony at trial revealed that the bullet Doyle recovered from the ramp came from Treesh's nine-millimeter handgun, not Dupree's .25 caliber weapon.

Treesh also contends that the failure to preserve certain wall panels and doors where bullets had been found rendered it impossible to reconstruct the precise trajectory of bullets fired. But the police took photographs and videotapes indicating the location of the spent bullets and casings in the store, and disclosed this information to the defense. See Crim.R. 26. Measurements of the entire store, including the location of the spent bullets and casings, were taken by Officer Wisniewski at the scene. Based on this information, Treesh's own investigator constructed a detailed shadowbox reconstruction of the crime scene prior to trial, which included angles of fired bullets. At trial, Officer Wisniewski testified at length regarding the locations of the spent bullets and casings. Accordingly, Treesh suffered no prejudice from the state's failure to preserve the wall panels and doors from the Vine Street News.

Finally, Treesh contends that the state "failed to adequately preserve" Dupree's handcuffs and .25 caliber handgun. Like the court of appeals, we disagree. The handcuffs were attached to the belt or belt loops of Dupree's security uniform, which was taken to the Cuyahoga County Coroner for testing. The .25 caliber handgun fell out of the back pocket of Dupree's pants at the hospital. Eastlake police turned the gun over to the Lake County Prosecutor. The state disclosed the existence of both the handcuffs and the .25 caliber handgun to the defense in a discovery response filed October 11, 1994, and the defense had the opportunity to conduct its own testing of the items. Accordingly, we overrule appellant's third proposition of law.

F. Request for Grand Jury Transcripts

In his fourth proposition of law, Treesh asserts that the trial court erred when it denied him access to the record of grand jury proceedings. We disagree. This court has recognized a limited exception to the general rule in favor of grand jury secrecy, holding that an accused is not entitled to review the transcript of grand jury proceedings "unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy." (Emphasis added.) State v. Greer (1981), 66 Ohio St.2d 139, 477 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus. "Whether particularized need for disclosure of grand jury testimony is shown is a question of fact; but, generally, it is shown where from a consideration of all the surrounding circumstances it is probable that the failure to disclose the testimony will deprive the defendant of a fair adjudication of the allegations placed in issue by the witness' trial testimony." Id., paragraph three of the syllabus. See, also, State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR 410, 413, 478 N.E.2d 781, 785. This is a matter within the trial court's discretion. Greer, supra, 66 Ohio St.2d at 148, 20 O.O.3d at 163, 420 N.E.2d at 988. In Sellards, supra, the accused demonstrated a particularized need to inspect relevant portions of grand jury testimony because inspection was necessary to prove the accused's claim that the prosecution intentionally withheld specific material information from the defense—a claim itself borne out by trial testimony. Sellards, 17 Ohio St.3d at 173, 17 OBR at 413, 478 N.E.2d at 785-786.

Attempting to articulate a particularized need here, Treesh asserts that "all information therein [was] needed to properly and fully prepare his defense. * * * The Appellant, in a capital murder matter, should have been permitted copies of the grand jury transcript to allow him to best fully prepare his defense." Treesh thus implies that the severity of the potential penalty, without more, results in a particularized need for the grand jury transcripts. We disagree. Though Greer itself was not a death-penalty case, this court has applied Greer to capital cases, and rejected assertions of particularized need when appellants failed to meet their burden to specify that need or demonstrate how nondisclosure deprived them of a fair trial. See, e.g., State v. Benge (1996), 75 Ohio St.3d 136, 145, 661 N.E.2d 1019, 1028; State v. Lawson (1992), 64 Ohio St.3d 336, 345, 595 N.E.2d 902, 909-910.

In his original motion for a transcript of grand jury proceedings, Treesh was more specific than in his brief to this court, asserting that he required the grand jury testimony of Benjamin Brooks. But as the court of appeals noted, Brooks never testified at trial, and Treesh has failed to establish that he had a particularized need for the disclosure of the grand jury record. The trial court did not abuse its discretion when it overruled Treesh's motion for a transcript of grand jury proceedings. Accordingly, Treesh's fourth proposition of law lacks merit.

G. Request for Daily Trial Transcripts

In his fifth proposition of law, Treesh contends that as a death-penalty defendant, he was "entitled by law" to have daily transcripts of all proceedings provided to him. Treesh filed a pretrial motion for daily transcripts. In its response, the state recognized that Treesh would be entitled to a transcript for purposes of appeal, but urged the court to deny Treesh's request for daily 478transcripts in favor of a "wait and see" approach. The trial court denied Treesh's motion for daily transcripts in a journal entry disposing of several other pretrial matters. In his brief to this court, Treesh asserts that due to his need for thorough and ongoing investigation and trial preparation, his need for an adequate defense, the seriousness of the offense, the severity of his potential punishment, and his constitutional right to confrontation, the trial court improperly overruled his motion for daily transcripts. We disagree.

The United States Supreme Court has held that "the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal." Britt v. North Carolina (1971), 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400, 403. We explicitly followed Britt in State v. Arrington (1975), 42 Ohio St.2d 114, 71 O.O.2d 81, 326 N.E.2d 667, paragraph one of the syllabus.

Though appellant relies on Britt to support his alleged entitlement to daily transcripts, Britt simply does not require that a capital defendant be provided with transcripts of each day's testimony as trial proceeds. United States v. Sliker (C.A.2, 1984), 751 F.2d 477, 491 (holding that even in light of Britt, denial of defendant's request for daily transcripts was not an abuse of discretion or denial of defendant's constitutional rights). "Common experience informs us that it is entirely practicable to present an effective defense in a criminal case without daily copy, however convenient daily copy undoubtedly is." Id. See, also, United States v. Rucker (C.A.2, 1978), 586 F.2d 899, 905 (finding no constitutional deprivation due to denial of daily transcripts). The Constitution does not require that indigent defendants be furnished with every possible legal tool, "no matter how speculative its value, and no matter how devoid of assistance it may be, merely because a person of unlimited means might choose to waste his resources." United States v. MacCollom (1976), 426 U.S. 317, 330, 96 S.Ct. 2086, 2093, 48 L.Ed.2d 666, 667 (Blackmun, J., concurring).

Assuming, arguendo, that the trial court erred by denying Treesh's motion for daily transcripts, Treesh has failed to articulate any specific prejudice resulting from a lack of access to such transcripts, and we discern none. Accord Thomason v. State (1997), 268 Ga. 298, 312, 486 S.E.2d 861, 873. Treesh apparently seeks a per se rule requiring the provision of daily transcripts to all capital defendants, but we decline to extend Britt beyond the factual circumstances recognized by the Supreme Court. Cf. Harris v. Stovall (C.A.6, 2000), 212 F.3d 940, 945 (rejecting defendant's contention that Britt entitled him to transcripts 479from his accomplice's trial). Accordingly, we overrule appellant's fifth proposition of law.

H. Elicitation of Treesh's Request for an Attorney

In his eleventh proposition of law, Treesh contends that the trial court erred when it failed to grant a motion for mistrial made during the direct examination of Detective Doyle. Doyle, the investigating officer in charge of Treesh's case, interviewed Treesh and Brooks at Eastlake following their arrest. At the stationhouse, Doyle confronted Treesh and Brooks with the taped statement of the store clerk.

At trial, the prosecutor asked Doyle what happened after Treesh heard Lauver's taped statement. Defense counsel immediately objected, fearing that the prosecutor was trying to elicit Treesh's request for an attorney. At sidebar, the prosecutor assured counsel that he was seeking testimony only about Treesh's request to make a deal—"nothing to do with counsel." But following the sidebar, when the prosecutor again asked Doyle what Treesh said after hearing Lauver's statement, Doyle answered, "he wanted a prosecutor to be present and he wanted an attorney." Defense counsel immediately objected, and the court sustained the objection and provided a curative instruction. At sidebar, the prosecutor said "that was a surprise to me." The following day, the defense made a motion for mistrial, which the trial court denied.

We agree with appellant that it was improper for the prosecutor to elicit Doyle's testimony that Treesh had asked for an attorney. An accused who asserts his Fifth Amendment right to silence should not have the assertion of that constitutional right used against him. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. Since Doyle, the United States Supreme Court has clarified that "with respect to post-Miranda warnings `silence,' * * * silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted." (Emphasis added.) Wainwright v. Greenfield (1986), 474 U.S. 284, 295, 106 S.Ct. 634, 640, 88 L.Ed.2d 623, 632, fn. 13. Here, we agree with the court of appeals' view that "the inference that a juror could draw from Doyle's statement, is that appellant asked for an attorney after being confronted with the audio tape recording because he was guilty. Consequently, the admission of this statement could bear on whether a juror could entertain a reasonable doubt as to appellant's guilt." (Emphasis added.)

The prosecutor's improper elicitation of testimony regarding Treesh's request for an attorney is especially troubling because defense counsel and the court had specifically warned the prosecutor to avoid the problem even before it occurred. Even so, we must determine whether Doyle's statement resulted in prejudicial error warranting reversal. See Hayton v. Egeler (C.A.6, 1977), 555 F.2d 599 80(prosecutor's attempt to impeach petitioner's alibi testimony by inquiring about postarrest silence was erroneous, but harmless error beyond a reasonable doubt).

The granting or denial of a motion for mistrial rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Crim.R. 33; State v. Sage (1987), 31 Ohio St.3d 173, 182, 31 OBR 375, 382, 510 N.E.2d 343, 349-350. "A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened * * *." State v. Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490, 497. The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9. A single comment by a police officer as to a suspect's silence without any suggestion that the jury infer guilt from the silence constitutes harmless error. See Meeks v. Havener (C.A.6, 1976), 545 F.2d 9, 10.

Here, the trial court immediately instructed the jury that "the fact that the Defendant requested an attorney is his Constitutional right to request one and cannot be used against him in any way." We presume that the jury followed the court's instructions, including instructions to disregard testimony. State v. Loza (1994), 71 Ohio St.3d 61, 75, 641 N.E.2d 1082, 1100; State v. Zuern (1987), 32 Ohio St.3d 56, 61, 512 N.E.2d 585, 590. Given the context of the prosecutor's question to Doyle and the curative instruction by the court, we conclude that the trial court did not abuse its discretion in denying appellant's motion for mistrial. Accordingly, we overrule appellant's eleventh proposition of law.

I. Improper Cross-Examination

In his ninth proposition of law, Treesh argues that the prosecutor "engaged in improper and highly prejudicial questioning of witnesses and in making prejudicial comments to the jury." Treesh, who took the stand in his own defense, refers specifically to alleged improprieties that occurred during his cross-examination by the state. We find no merit to these contentions.

Again, the standard for prosecutorial misconduct is whether the comments and/or questions were improper, and, if so, whether they prejudiced appellant's substantial rights. State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293, 300. Evid.R. 611(B) provides that cross-examination shall be permitted on all relevant matters and matters affecting credibility. "The limitation of * * * cross-examination lies within the sound discretion of the trial court, viewed in relation to the particular facts of the case. Such exercise of discretion will not be disturbed in the absence of a clear showing of an abuse of discretion." State v. Acre (1983), 6 Ohio St.3d 140, 145, 6 OBR 197, 201, 451 N.E.2d 802, 806. Trial judges may impose reasonable limits on cross-examination based on a variety of concerns, such as harassment, prejudice, confusion of the issues, the witness's safety, repetitive testimony, or marginally relevant interrogation. See Delaware 481 v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683.

First, Treesh contends that the prosecutor improperly badgered him about his inability to recall the exact position that he was in when his gun first discharged in the rear of the store. Though the trial court sustained defense counsel's objection, we agree with the court of appeals that the prosecutor's query cannot be the basis for a claim of prosecutorial misconduct, because appellant's recollection of the precise sequence of events in the rear of the store was a proper subject for cross-examination. See State v. Pinkney (1988), 36 Ohio St.3d 190, 193, 522 N.E.2d 555, 558.

Second, Treesh contends that the prosecutor improperly "tried to question the Appellant in front of the jury about the witness Kelli Hobbs, which the trial court specifically excluded." Like the court of appeals, however, we find no attempt by the prosecution to elicit testimony relating to Hobbs. In the portion of the record cited by Treesh, although the prosecutor did indeed mention Hobbs, this did not occur in front of the jury, but during a sidebar discussion when the trial judge specifically warned the prosecutor to avoid eliciting testimony about other acts.

Third, Treesh contends that the prosecutor improperly exceeded the scope of cross-examination by asking Treesh about events that occurred on the day before the shooting. The court of appeals disagreed, noting that Ohio does not follow the federal rule with respect to the scope of cross-examination. In Ohio, cross-examination is not limited to the subject matter of direct examination. Compare Evid.R. 611(B) with Fed.R.Evid. 611(b). It is available for all matters pertinent to the case that the party calling the witness would have been entitled or required to raise. Smith v. State (1932), 125 Ohio St. 137, 180 N.E. 695, paragraph one of the syllabus. Here, the prosecutor's few general questions concerning Treesh's activities on the day before the robbery merely clarified Treesh's own testimony that he had been smoking cocaine in the Cleveland area before the Vine Street robbery. We find no merit in appellant's contention that these questions denied Treesh a fair trial.

Finally, Treesh argues that the prosecutor improperly and repeatedly questioned him regarding civilians present during Treesh's flight from police. It is true that during cross-examination, the prosecutor asked Treesh whether he saw civilians in the area as he and Harth ran from pursuing police officers. We note that Treesh failed to object to the prosecutor's first several questions about civilians. Regardless, it is unclear from Treesh's proposition how these questions in any way prejudiced him.

We have reviewed the state's cross-examination of Treesh in its entirety. Though the prosecutor occasionally repeated questions and at times seemed 482unnecessarily contentious, defense counsel objected and the trial court sustained the objections where appropriate. Eventually, the trial court specifically limited the scope of cross-examination and specifically warned the prosecutor not to "keep trying to put words in [Treesh's] mouth." We find that the trial court properly controlled the cross-examination of Treesh, and it cannot be said that the prosecutor's method of cross-examination denied Treesh a fair trial. Accordingly, we overrule appellant's ninth proposition of law.

J. Prior Bad Acts

The thirteenth proposition of law also concerns the state's cross-examination of Treesh. Treesh contends that the trial court should have declared a mistrial after the prosecutor "tried to introduce evidence of prior acts of Appellant." Treesh's proposition is based on the following exchange:

"[Prosecutor:] And when you asked the Eastlake police if you were charged with murder one, you knew what it meant?

"[Appellant:] I thought it was the highest degree.

"[Prosecutor:] Well, now, you knew about the different levels of murder one, of murder, didn't you?

"[Appellant:] Are you telling me what I know?

"[Prosecutor:] No, I am asking, didn't you know?

"[Appellant:] No, I didn't.

"[Prosecutor:] Well, you testified on direct that you had previous convictions? "[Appellant:] Yes sir, I did."

Defense counsel objected. The trial court sustained the objection, and ordered the prosecutor to abandon this line of questioning. Shortly thereafter, the trial court overruled appellant's motion for mistrial.

In his brief, Treesh contends that "[i]t is unequivocally clear that the prosecutor was attempting to prove, through prior convictions, the character of the appellant in order to show that he acted in conformity therewith in violation of Rule 404(B) of the Ohio Rules of Evidence." This rule provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." See, also, State v. Woodard (1993), 68 Ohio St.3d 70, 73, 623 N.E.2d 75, 78, citing State v. Wickline (1990), 50 Ohio St.3d 114, 120, 552 N.E.2d 913, 920.

Here, because the trial court immediately sustained defense counsel's objection and prohibited the prosecutor from pursuing this line of inquiry, the trial court did not err in overruling Treesh's motion for a mistrial. As we noted above, the granting or denial of a motion for mistrial rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. 483 Garner (1995), 74 Ohio St.3d 49, 59, 656 N.E.2d 623, 634. On direct examination, Treesh had already admitted to prior convictions for the felonies of receiving stolen property, forgery, and burglary. The prosecutor's question on cross-examination merely asked Treesh to confirm that prior testimony. Since the trial court sustained the objection to this question, no further bad acts testimony was admitted, avoiding any potential violation of Evid.R. 404(B).

Treesh cites our Lytle decision for the proposition that the improper use of other-acts evidence necessitates reversal when there is a "reasonable possibility that the testimony contributed to the accused's conviction." State v. Lytle (1976), 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623, paragraph three of the syllabus. Upon consideration of the record as a whole, "we believe it most unlikely that the `other act' testimony contributed in any noticeable degree" to Treesh's convictions. Id., 48 Ohio St.2d at 403, 2 O.O.3d at 502, 358 N.E.2d at 631. Accordingly, we overrule appellant's thirteenth proposition of law.

K. Gruesome Photographs

In his twelfth proposition of law, Treesh contends that the trial court erred when it admitted, over objection, allegedly gruesome photographs of the victims in this case. Initially, we note that no photographs of Lauver's injuries to his face or arm were admitted into evidence. The state introduced six close-up photographs of Dupree's body during its direct examination of Dr. Carlos Santoscoy, the pathologist who performed Dupree's autopsy at the Cuyahoga County Coroner's Office.

Under Evid.R. 403 and 611(A), the admission of photographs is left to the sound discretion of the trial court. State v. Landrum, 53 Ohio St.3d at 121, 559 N.E.2d at 726; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. Close-up photographs of victims' injuries, even if gruesome, are admissible in capital cases if the probative value of the photographs outweighs the danger of material prejudice and if the photographs are not repetitive or cumulative in number. Id.

In State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267, this court determined that numerous gruesome photographs depicting the scene of a murder and the body of the victim both before and during the coroner's examination were neither repetitive nor cumulative and that the probative value of the photographs outweighed the danger of unfair prejudice to the defendant. Id. at 258, 513 N.E.2d at 273-274. In Landrum, supra, we reached the same conclusion regarding a close-up photo depicting the murder victim's slit throat. State v. Landrum, 53 Ohio St.3d at 121, 559 N.E.2d at 726.

We have reviewed the six photographs of Dupree's body that the state introduced into evidence. The photographs illustrated the coroner's testimony 4and were relevant to significant trial issues such as the cause of Dupree's death, the distance of Treesh's gun from Dupree's body when it discharged, and the lack of defensive wounds on Dupree's body. Dupree's wounds had been cleaned before the photographs were taken, and the photographs do not appear gruesome or repetitive. Even if Exhibits 32(b), (c), and (d)—the three photographs depicting the cleaned bullet holes in Dupree's body—could be described as gruesome, the probative value of these photographs substantially outweighed any danger of unfair prejudice to Treesh. Accordingly, we overrule Treesh's twelfth proposition of law.

L. Sufficiency of the Evidence

In his tenth and sixteenth propositions of law, Treesh argues that the evidence presented at trial was legally insufficient to support his convictions for aggravated murder and attempted aggravated murder. The relevant question in determining the sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis deleted.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. We will not disturb the verdict unless we find that reasonable minds could not reach the conclusion reached by the trier of fact. Id. at 273, 574 N.E.2d at 503.

1. Aggravated Murder of Dupree

Treesh insists that the state failed to introduce sufficient evidence to support his conviction for aggravated murder. Treesh devotes much of his sixteenth proposition to his contention that the state failed to show that he murdered Dupree with "prior calculation and design" as R.C. 2903.01(A) requires. But Treesh was indicted for and convicted of "purposely caus[ing] the death of Henry Dupree while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit Aggravated Robbery or Robbery" in violation of R.C. 2903.01(B), and was convicted on a death-penalty specification under R.C. 2929.04(A)(7) that he was the principal offender, not that he acted with prior calculation and design. For this reason, the element of prior calculation and design is not at issue.

Under R.C. 2903.01(B), the state was required to prove that Treesh "purposely caus[ed] the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, * * * aggravated robbery or robbery * * *." A person acts purposely when he or she specifically intends to cause a certain result. R.C. 2901.22(A). Because the intent of an accused dwells in his or her mind and can never be proved by the 485direct testimony of a third person, it must be gathered from the surrounding facts and circumstances, and the General Assembly has provided that intent to kill may be proven by inference. Former R.C. 2903.01(D), 139 Ohio Laws, Part I, 3-4. See, also, In re Washington (1998), 81 Ohio St.3d 337, 340, 691 N.E.2d 285, 287. "[S]uch an intent may be inferred in a felony-murder when the offense and the manner of its commission would be likely to produce death." State v. Garner, 74 Ohio St.3d at 60, 656 N.E.2d at 634.

Like the court of appeals, we find sufficient, credible evidence in the record to support the jury's determination that Treesh purposely caused the death of Henry Dupree. Treesh and Brooks planned the armed robbery in advance and entered the Vine Street News with fully loaded, particularly lethal weapons—a sawed-off shotgun and a nine-millimeter handgun containing Hydra-Shok bullets. Even though the store clerk in the front of the store cooperated with Treesh and his accomplice, Treesh sought out Dupree in a separate area at the rear of the store. Treesh found Dupree sitting in a chair watching television, unaware of Treesh's presence in the rear of the store and unaware that a robbery was even occurring. Instead of simply turning around and returning to the front of the store to continue the robbery or flee, Treesh poked Dupree with his gun, ordered him to stand up, and shot him multiple times at close range.

Treesh claims that he merely attempted to disarm Dupree and that his gun discharged during a fierce hand-to-hand struggle—a contention that Treesh never mentioned to the police during his lengthy stationhouse interrogation. But Plunkard, the witness who hid in a viewing booth at the rear of the store, heard no signs of a struggle prior to the gunshots. Plunkard testified that the shots sounded in a steady rhythm. The record also contains physical evidence and substantial, credible expert testimony to discount Treesh's contention that he shot Dupree during a struggle. Dupree's body lacked defensive wounds suggestive of a struggle. And despite Dupree's considerable loss of blood, a forensic serologist found no traces of blood identifiable as Dupree's on Treesh's jeans, shirt, or shoes. The lack of any significant smearing of blood spatters in the area of the alleged struggle also cast doubt on appellant's theory. Circumstantial evidence and direct evidence inherently possess the same probative value. Jenks, supra, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus. Dupree suffered two close-range shots in his chest, and we have repeatedly held that multiple close-range gunshots to a vital area tend to demonstrate a purpose to kill. See State v. Palmer (1997), 80 Ohio St.3d 543, 562, 687 N.E.2d 685, 702; State v. Otte (1996), 74 Ohio St.3d 555, 564, 660 N.E.2d 711, 720.

2. Attempted Aggravated Murders of Lauver and Stih

Treesh also argues that the evidence was legally insufficient for the jury to conclude that Treesh attempted to commit the aggravated murders of Lauver 486and Sergeant Stih. R.C. 2923.02(A); 2903.01(B). We disagree. Treesh claims that he never intended to shoot Lauver, but aimed instead at the telephone behind Lauver. The physical evidence at trial, however, as well as Lauver's own testimony, reveals that even though Lauver cooperated with Treesh and his accomplice, Treesh raised his weapon and fired multiple shots at Lauver's face from close range as he left the store. At least one bullet struck Lauver in the face, and the presence of a spent, fully mushroomed bullet in the floor nearby provided credible evidence that Lauver was struck a second time by a bullet that passed through his body. Even if only one bullet struck Lauver, we reject Treesh's unsupported contention that "one shot at a person is not indicative of intent to murder."

The record also contains sufficient evidence to show that during his attempt to flee, Treesh fired his weapon through the rear window of the car at Sergeant Stih's pursuing cruiser, assumed an "action stance" when he got out of the car, and continued firing at Stih until his gun was empty. Stih testified that he lay across the front seat of his cruiser and backed away to avoid being hit, and that he later found a nine-millimeter hole in his cruiser's light bar. Detective Ernie Iafelice, a Euclid officer who assisted in the recovery of evidence at the intersection where Treesh fired on Stih, noticed ricochet marks on Stih's vehicle.

Based on the total number of bullets fired and recovered from the Vine Street News and the area where police apprehended Treesh, the state's evidence suggests that Treesh must have reloaded his weapon at some point while attempting to flee, indicating that he was "not content to use it merely as a prop" to ward off pursuit. State v. Dennis (1997), 79 Ohio St.3d 421, 439, 683 N.E.2d 1096, 1111. Treesh also admitted telling the arresting officers immediately after his arrest that he wished he had killed them. Viewed in a light most favorable to the prosecution, the evidence is sufficient to support Treesh's convictions for attempted aggravated murder.

III. Penalty Phase: Victim's Family's Request for Death Penalty

In his seventeenth proposition of law, Treesh contends that the trial court committed prejudicial error when it allowed the jury to hear certain victim-impact testimony during the mitigation phase. Though we agree with appellant that the trial court should not have heard testimony from Dupree's daughter recommending that the trial court impose the death penalty, we do not agree that this error necessitates reversal.

In 1987, the United States Supreme Court held that "the introduction of a [victim-impact statement] at the sentencing phase of a capital murder trial violates the Eighth Amendment." Booth v. Maryland (1987), 482 U.S. 496, 509, 107 S.Ct. 2529, 2536, 96 L.Ed.2d 440, 452. In Booth, the court concluded that such information "is irrelevant to a capital sentencing decision, and * * * its 87admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." Id. at 502-503, 107 S.Ct. at 2533, 96 L.Ed.2d at 448. The victim-impact testimony at issue in Booth concerned descriptions of the victims, the emotional impact of the crimes on the family, and "the family members' opinions and characterizations of the crimes and the defendant." Id. at 502, 107 S.Ct. at 2533, 96 L.Ed.2d at 448. Three years after Booth, this court held that "[e]xpressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the jury and judge." State v. Huertas (1990), 51 Ohio St.3d 22, 553 N.E.2d 1058, syllabus.

The following year, the United States Supreme Court overruled its decision in Booth, holding that "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Payne v. Tennessee (1991), 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736. The Payne court explicitly cautioned, however, that "Booth also held that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case." (Emphasis added.) Id. at 830, 111 S.Ct. at 2611, 115 L.Ed.2d at 739, fn. 2. Because Payne did not reexamine the constitutionality of victims' recommendations as to the appropriate sentence, we have continued to adhere to our Huertas syllabus and have prohibited the admission of witnesses' opinions as to the appropriateness of a particular sentence. See, e.g., State v. Goodwin (1999), 84 Ohio St.3d 331, 343, 703 N.E.2d 1251, 1262; State v. Fautenberry (1995), 72 Ohio St.3d 435, 438-439, 650 N.E.2d 878, 882. Other victim-impact testimony, such as testimony depicting the circumstances surrounding the offense and the impact of the murder on the victim's family, "may be admissible during both the guilt and the sentencing phases." (Emphasis sic.) Id. at 440, 650 N.E.2d at 883.

Though our decisions in Goodwin and Fautenberry underscored the impropriety of victim-impact testimony containing sentencing recommendations, those decisions also illustrate that the admission of such testimony does not necessarily result in reversible error. In Goodwin, after the jury's sentencing verdict, the trial judge permitted the prosecutor to present victim-impact testimony from the victim's brother. Through the prosecutor, the brother said that he agreed with the jury's verdict and "would ask this Court to follow the recommendation * * * [and impose] the death penalty." Id., 84 Ohio St.3d at 343, 703 N.E.2d at 1262. We acknowledged the impropriety of this testimony but unanimously upheld the appellant's death sentence, concluding that "[the victim's brother's] brief opinion, expressed by the prosecutor without emotion, elicited no objection. No plain error is present. * * * Presumably, the trial judge remained uninfluenced, since 488his sentencing decision never referred to the brother's opinion. * * * Moreover, any error is readily cured by this court's independent sentence review." Id., 84 Ohio St.3d at 343, 703 N.E.2d at 1262.

In Fautenberry, supra, we arrived at a similar conclusion. The victim-impact statement reviewed by the three-judge panel indicated that each victim interviewed wanted the appellant to receive "the maximum sentence" available under the law. Id., 72 Ohio St.3d at 437, 650 N.E.2d at 881. We were not persuaded that this error necessitated reversal, because "[a] review of the three-judge panel's decision * * * fail[ed] to demonstrate that the judges contemplated or relied upon the victim-impact evidence which was available to them. `Absent an indication that the panel was influenced by or considered the victim impact evidence in arriving at its sentencing decision,' the admission of such is not reversible error." Id. at 439, 650 N.E.2d at 882, quoting State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759.

In the case at bar, the trial court reviewed the victim-impact statements of Sergeant Stih and Louis Lauver, and then permitted Henry Dupree's daughter, Linda Luckason, to be heard. After telling the court how much her family would miss Dupree, Luckason said: "We strongly support an `Eye for an Eye.' * * * We are asking that the death penalty be given to Mr. Treesh, which is what he gave to my father, Henry. Judge, we hope you exercise your decision [sic] in this case to the full extent of the law by ordering the death penalty for Mr. Treesh as his punishment for this horrendous crime and lack of regard for human life. He felt nothing during his killing spree, and at this time we feel nothing for him." Defense counsel objected and asked the court to disregard Luckason's statement. The trial court noted the objection, but referred to statutory authorization for the consideration of victim-impact statements. We agree with Treesh that defense counsel properly objected to Luckason's statement, because it contained an express recommendation that Treesh receive the death penalty. See Huertas, Goodwin, and Fautenberry, supra. Nonetheless, we conclude that this error does not necessitate reversal.

In his proposition, Treesh contends that the objectionable victim-impact testimony was heard by the jury. But Luckason's improper sentencing recommendation occurred before the judge, after the jury had made its sentencing recommendation and had been excused. Moreover, as the court of appeals noted, we presume that the trial judge considers only relevant, competent evidence in arriving at his or her judgment. Post, supra, 32 Ohio St.3d at 384, 513 N.E.2d at 759. Though Luckason's emotional plea for the death penalty was heard directly by the court—in contrast to the prosecutor's second-hand recital of the brother's recommendation in Goodwin—there is no indication here that the trial court relied on Luckason's recommendation. See State v. Allard (1996), 75 Ohio St.3d 489482, 491, 663 N.E.2d 1277, 1286. On the contrary, when ruling on a pretrial motion to exclude victim-impact testimony, the trial judge prohibited the state from presenting "evidence concerning the victims as nonstatutory aggravating circumstances during the penalty phase," indicating that the court was aware of the limitations on victim-impact evidence. And the court did not refer to Luckason's improper sentencing recommendation either orally at sentencing or in the court's written sentencing opinion. For the foregoing reasons, appellant's seventeenth proposition of law lacks merit.

IV. Ineffective Assistance of Counsel

In his fifteenth proposition of law, Treesh argues that he received ineffective assistance from trial counsel at several times throughout the trial. Reversal of a conviction on the grounds of ineffective assistance of counsel requires a showing, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. "To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.

Treesh first contends that his counsel should not have waived his right to be present at two pretrial conferences because the trial court had previously granted Treesh's motion to be present at all proceedings. But when the trial court granted Treesh's motion, it specifically stated: "The court will accept the assurances of defendant's attorney whether the defendant wishes to be present at pre-trial conferences. Defendant's attorney has already stated that it is not the defendant's desire to be present at pre-trial conferences and that defendant has waived his presence." Accordingly, counsel's waiver of Treesh's presence at two pretrial conferences was consistent both with Treesh's own wishes and the court's journal entry. Even if Treesh now contends that he should have been present at the pretrials, he fails to demonstrate how his attorney's waiver of his presence in any way prejudiced him.

Next, Treesh contends that his counsel wrongly chose not to order a pre-sentence investigation and psychological report under R.C. 2929.03(D)(1). "The decision to request a pre-sentence report is one of sound trial strategy. Such trial strategy should not be second-guessed by reviewing courts in a claim of ineffective assistance of counsel." (Citations omitted.) State v. Williams (1991), 74 Ohio App.3d 686, 697, 600 N.E.2d 298, 305. Regardless, Treesh again fails to demonstrate how the failure to order the reports prejudiced him.

490Third, Treesh argues that his attorney should have called Mark Angellota—his court-appointed investigator—as well as Angelotta's wife, Terri, as defense witnesses. Generally, counsel's decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court. Id. at 695, 600 N.E.2d at 304. Further, Treesh fails to explain how counsel's failure to call these two witnesses prejudiced him.

Fourth, Treesh contends that his counsel were ineffective for failing to challenge two jurors, Cynthia Barth and Barbara Modica, during voir dire. Treesh argues that counsel should have challenged Barth because she had taken paralegal classes taught by the prosecutor, Charles Coulson. Treesh claims that counsel should have challenged juror Modica due to her media exposure about the case and her alleged predisposition in favor of the death penalty. We find both contentions meritless. It is unlikely that a challenge for cause, if made, would have succeeded in either case. Barth testified that her past affiliation with Coulson's paralegal course would not impair her ability to render a fair and impartial verdict. Likewise, though Modica admitted exposure to some newspaper articles about the case, and admitted that she favored the death penalty "[w]hen it's warranted," she stated that she had not formed an opinion about the case and that she could fairly and impartially weigh the evidence presented.

Treesh's fifth contention, that counsel were ineffective for withdrawing the show-up identification portion of Treesh's motion to suppress, is also meritless. Identity was never an issue in this case, because appellant admitted both his participation in the robbery and his presence during the fatal encounter with Dupree at the rear of the store. Defense counsel's decision to withdraw the show-up identification issue was consistent with the defense, and Treesh has failed to demonstrate how it prejudiced him.

V. Proportionality Review

In his twentieth proposition of law, Treesh asks this court to revisit the issue concerning the universe of cases to be considered by an appellate court when conducting the proportionality review required by R.C. 2929.05(A). Treesh presents no new arguments relating to this issue, which we overrule on the authority of State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus; see, also, State v. Baston (1999), 85 Ohio St.3d 418, 429, 709 N.E.2d 128, 137-138.

VI. Independent Sentence Review

In his nineteenth proposition of law, Treesh argues that the state failed to establish beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors and that the imposition of the death penalty in this 491case was both inappropriate and disproportionate. We resolve these issues pursuant to our statutorily mandated independent review. R.C. 2929.05(A).

We are obligated to independently weigh the aggravating circumstances against the mitigating factors and to determine whether appellant's sentence is disproportionate to sentences in similar cases. Id. We begin by considering whether the evidence supports a finding of the aggravating circumstance that the state elected to pursue in this case, specifically, that Treesh committed the aggravated murder of Dupree while committing, attempting to commit, or fleeing immediately after committing or attempting to commit the offense of aggravated robbery, and that Treesh was the principal offender in the commission of the aggravated murder. R.C. 2929.04(A)(7). We find that the evidence proves beyond a reasonable doubt the aggravating circumstance charged against Treesh. The evidence of record demonstrates that Treesh, as the principal offender, purposely killed Dupree while committing, attempting to commit, or fleeing the aggravated robbery of the Vine Street News.

Against this aggravating circumstance, we weigh the nature and circumstances of the offense, the history, character, and background of the offender, and any applicable factors enumerated in R.C. 2929.04(B)(1) through (7). The nature and circumstances of the offense offer no mitigating value. After participating in a cocaine binge, Treesh and his companions planned the armed robbery to satisfy their desire for additional cocaine. Treesh entered the Vine Street News with a fully loaded handgun containing Hydra-Shok bullets, sought out a security guard in the rear of the store who was unaware a robbery was in progress, shot the guard twice in the chest at close range, shot the unarmed and cooperative store clerk in the face as he fled, and fired multiple shots at pursuing police officers.

The defense's mitigation witnesses testified at length about Treesh's family history, character, and background. Appellant's mother, who was two years old when her own mother died, was sexually abused by her father and grandfather and lived for a time at a state mental hospital. Mrs. Treesh testified that appellant always had difficulty in school and that Treesh's father "didn't go to ball games, he didn't share things with Frederick that Frederick needed." Treesh's parents divorced when he was four, but eventually remarried. Treesh's older sister testified that she loved appellant, but that as a young boy, Treesh was a "daredevil" who would "try anything once."

Treesh's mother enrolled him in Big Brothers/Big Sisters, but pulled him from the program after hearing rumors that Treesh's assigned Big Brother was a homosexual. By the time Treesh was in junior high school, his behavior had deteriorated to the point where he vandalized property, engaged in petty theft, and regularly skipped classes. After fathering a child at the age of seventeen, 492Treesh eventually found employment as a heavy equipment operator, but suffered a concussion due to a workplace accident and became severely depressed.

The defense also presented the testimony of a psychologist, Dr. Sandra McPherson. McPherson testified that Treesh suffered from a "classic" case of attention deficit/hyperactivity syndrome ("ADHD"), depression, and cocaine addiction. According to McPherson, persons with ADHD have difficulty sitting still, completing their work, or remembering things; they may lack some social skills and suffer from low self-esteem. McPherson testified that children with ADHD often receive negative feedback from teachers, and that there is a high correlation between ADHD and drug use. McPherson testified that Treesh had a fourth-grade spelling ability, could read at a seventh-grade level, and could do mathematics at a sixth-grade level. Despite Treesh's poor achievement in school, McPherson testified that he tested in the normal range on IQ tests.

On cross-examination, McPherson conceded that she could not form an opinion as to whether the conditions she diagnosed necessarily impaired Treesh's capacity to appreciate the criminality of his conduct. Because McPherson stopped short of showing that Treesh's ADHD caused him to lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, we do not consider her testimony to support a finding of the R.C. 2929.04(B)(3) mitigating circumstance (mental disease or defect). See State v. Fox (1994), 69 Ohio St.3d 183, 187, 631 N.E.2d 124, 128. Though we consider her testimony under the R.C. 2929.04(B)(7) residual category, we assign it relatively little weight. Id.

Under the R.C. 2929.04(B)(7) residual category, the defense presented other factors in mitigation. Treesh's father testified that he would miss appellant if Treesh was put to death. The mother of appellant's child testified that appellant regularly kept in touch with his daughter during the proceedings, and that she did not want appellant to be executed. Appellant's twelve-year-old daughter testified that she had spent but one Christmas with appellant over the course of her life, and that she did not wish her father to be put to death. Finally, Treesh made an unsworn statement in which he apologized to the Dupree family and acknowledged that what he did was wrong.

We find the statutory mitigating factors in R.C. 2929.04(B)(1) (inducement by the victim), (B)(2) (duress, coercion, or provocation), (B)(4) (youth of the offender), (B)(5) (lack of criminal record), and (B)(6) (accused not the principal offender) inapplicable to this case. And though the trial court instructed the jury that residual doubt was a permissible R.C. 2929.04(B)(7) factor, this court has since ruled that residual doubt is not an acceptable mitigating factor under the statute because it is irrelevant to the issue of whether the defendant should be sentenced to death. State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus. 93Because McGuire applies retroactively, see State v. Webb (1994), 70 Ohio St.3d 325, 330-331, 638 N.E.2d 1023, 1029-1030, we need not consider residual doubt in our independent review. State v. Bey (1999), 85 Ohio St.3d 487, 509, 709 N.E.2d 484, 503.

We assign some weight in mitigation to Treesh's history, character, and background, see State v. Spivey (1998), 81 Ohio St.3d 405, 424, 692 N.E.2d 151, 166, as well as to his cocaine addiction, see State v. Landrum, 53 Ohio St.3d at 125, 559 N.E.2d at 730. Treesh's remorse is also worthy of some weight. Id. We accord modest weight to Treesh's prior employment, see State v. Madrigal (2000), 87 Ohio St.3d 378, 400, 721 N.E.2d 52, 72, and the love and support of his family. See State v. Smith (2000), 87 Ohio St.3d 424, 447, 721 N.E.2d 93, 116. Overall, however, we consider the mitigating factors to be of minimal significance here and conclude that they are substantially outweighed by the aggravating circumstance.

We also conclude that the penalty imposed in this case is neither excessive nor disproportionate when compared with factually similar capital cases involving comparable or even more compelling mitigating factors. See, e.g., State v. Martin (1985), 19 Ohio St.3d 122, 19 OBR 330, 483 N.E.2d 1157 (appellant shot drug store owner during aggravated robbery; parental problems, difficulty in school, lack of support from father); State v. Byrd (1987), 32 Ohio St.3d 79, 512 N.E.2d 611 (young offender stabbed clerk during aggravated robbery of convenience store; difficult upbringing, learning disability, remorse, drug use); State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180 (aggravated robbery of bar; alcoholic father, low intelligence, chronic underachiever, supportive family, daily cocaine use); State v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965 (aggravated robbery of convenience store; young offender, difficult upbringing, cocaine addiction). The mitigating factors present in this case do not distinguish Treesh's death sentence as excessive or disproportionate.

For the foregoing reasons, we affirm Treesh's convictions and death sentence.

Judgment affirmed.

MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.

RESNICK, J., concurs in judgment only.

APPENDIX

Proposition of Law No. 1: A defendant is entitled to a change of venue, pursuant to Rule 18 of the Ohio Rules of Criminal Procedure and applicable law, when the incident in question is highly publicized locally and nationally.

494APPENDIX—Continued

Proposition of Law No. 2: A defendant is entitled to the suppression of statements made by him to law enforcement officers and subsequent evidence obtained from the defendant when such were collected in violation of his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.

Proposition of Law No. 3: A trial court must dismiss an indictment when evidence establishes that critical evidence is missing and/or intentionally destroyed by or in the possession [sic] the State of Ohio.

Proposition of Law No. 4: A defendant in a capital punishment criminal matter is entitled to require the State of Ohio to produce the record of the grand jury proceedings.

Proposition of Law No. 5: A defendant in a death penalty criminal case is entitled by law to have daily transcripts of any and all proceedings provided to him.

Proposition of Law No. 6: A defendant in a death penalty criminal case is entitled to an increase in the number of peremptory juror challenges.

Proposition of Law No. 7: A prosecutor's conduct during voir dire in violation of a defendant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United State [sic] Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.

Proposition of Law No. 8: The inclusion of juror Lynn Volke denied appellant his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution, which guarantee an accused a fair trial and an impartial jury.

Proposition of Law No. 9: A trial court commits prejudicial error by allowing the state of Ohio to argue in an improper and inflammatory manner during the guilt phase before the jury, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.

Proposition of Law No. 10: A trial court commits prejudicial error by overruling the motions for acquittal made by a defendant, in violation of the defendant's rights as guaranteed him by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 9 and 10, Article I of the Ohio Constitution.

Proposition of Law No. 11: A defendant is denied his right to a fair trial and due process by a trial court's denial of his motion for mistrial in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution.

495APPENDIX—Continued

Proposition of Law No. 12: A defendant is denied his Sixth, Eighth and Fourteenth Amendment rights as guaranteed by the United States Constitution and Sections 9 and 10, Article I of the Ohio Constitution to a fair trial, due process and a reliable determination of his guilt and sentence when gruesome, prejudicial and cumulative photographs were admitted into evidence even though their prejudicial effect outweighed their probative value.

Proposition of Law No. 13: A trial court errs to the prejudice of a defendant when it denies a motion for mistrial after the prosecution referred to the defendant's prior acts.

Proposition of Law No. 14: A trial court commits prejudicial error by allowing a prosecutor to argue in an improper and inflammatory manner during the first portion of the State of Ohio's summation in the guilt phase before the jury, in violation of the defendant's Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.

Proposition of Law No. 15: Ineffective assistance of counsel provided to a defendant violate [sic] his rights to a fair and impartial jury trial and sentence, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10 and 16 of the Ohio Constitution.

Proposition of Law No. 16: A jury and trial court err to the prejudice of a defendant when there is insufficient evidence for the trier of fact to find him guilty of aggravated murder and/or attempted aggravated murder beyond a reasonable doubt.

Proposition of Law No. 17: A trial court commits prejudicial error by allowing victim impact testimony to be heard by the jury during the mitigation phase of a death penalty case, over the objection of the defendant, in violation of the defendant's rights as guaranteed to him by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 5, 9 and 10, Article I of the Ohio Constitution.

Proposition of Law No. 18: A trial court errs to the prejudice of a defendant when it fails to allow a defense witness to testify during the mitigation phase of the trial relating to the gravity of the threat the defendant would pose to the community if he were allowed to live and to be incarcerated as opposed to being put to death.

Proposition of Law No. 19: The trial court erred to the prejudice of the Appellant when it rules [sic] that any and all aggravating circumstances presented concerning the aggravated murder of Mr. Dupree outweighed the mitigating factors presented during the penalty phase of the trial.

496APPENDIX—Continued

Proposition of Law No. 20: A trial court errs in imposing the death sentence on a defendant. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio's statutory provisions governing the imposition of the death penalty, contained in Ohio Revised Code Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, do not meet the prescribed requirements and thus are unconstitutional, both on their face and as applied to the Appellant.

Proposition of Law No. 21: The trial court erred to the prejudice of the Appellant by failing to declare Ohio Revised Code Section 2929.04(A)(7) unconstitutional as it applied to Count One, aggravated murder as indicted, pursuant to Ohio Revised Code Section 2903.01(B) and thereby, dismissing Specification II of Count One.

[1] We summarily reject appellant's sixth proposition of law (number of peremptory challenges) on the authority of State v. Mills (1992), 62 Ohio St.3d 357, 365, 582 N.E.2d 972, 981; see, also, State v. Greer (1988), 39 Ohio St.3d 236, 530 N.E.2d 382, paragraph two of the syllabus. We reject appellant's eighteenth proposition of law (exclusion of testimony regarding firearm specifications' effect on total sentence) on the authority of State v. White (1999), 85 Ohio St.3d 433, 448, 709 N.E.2d 140, 155-156. We overrule appellant's twentieth proposition of law (constitutionality of Ohio's capital sentencing scheme) on the authority of State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph one of the syllabus; see, also, State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668. We reject appellant's twenty-first proposition of law (specification to Count One/double jeopardy) on the authority of State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 198, 616 N.E.2d 909, 920.

427ARGUED: S. Adele Shank, Law Office of S. Adele Shank, Columbus, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: S. Adele Shank, Law Office of S. Adele Shank, Columbus, Ohio, Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, for Appellant. Thomas E. Madden, Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

SILER, J., delivered the opinion of the court, in which GRIFFIN, J., joined. CLAY, J. (pp. 439-40), delivered a separate concurring opinion.

OPINION

SILER, Circuit Judge.

A state court jury convicted Frederick Treesh of aggravated murder and several other charges, and the court sentenced him to death. The Ohio courts upheld his conviction and sentence on direct review and in post-conviction proceedings. Treesh petitioned the U.S. District Court for the Northern District of Ohio for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition but granted Treesh a certificate of appealability ("COA") on two of his claims. Treesh appeals those claims and requests that we grant a COA as to a third claim. For the following reasons, we AFFIRM the district court's denial of Treesh's petition, and DENY his request for an expanded COA.

I. FACTUAL AND PROCEDURAL BACKGROUND

On direct appeal, the Ohio Supreme Court related the facts of the case in State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749, 756-58 (2001), which will not be fully repeated herein.

A. Direct Appeal

Before trial, Treesh filed a motion to suppress his statements as violating Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After a suppression 428hearing, the trial court summarily denied Treesh's motion in a one-sentence order. The jury found Treesh guilty of five counts: aggravated felony murder, aggravated robbery, felonious assault of a peace officer, and two counts of attempted aggravated murder. Each of the five counts included a firearm specification and Treesh pleaded guilty to one count of carrying a weapon under disability. The trial court adopted the jury's sentence recommendation of death.

The Ohio Eleventh District Court of Appeals affirmed Treesh's conviction and sentence. In particular, it rejected Treesh's arguments that the trial court erred in not suppressing his statements and that trial counsel was ineffective by failing to challenge for cause the jurors at issue here. State v. Treesh, No. 95-L-057, 1998 Ohio App. LEXIS 4886, at *25-45, 123-25 (Ohio Ct.App. Oct. 16, 1998). Treesh appealed to the Supreme Court of Ohio raising, inter alia, the two claims presented here. The Ohio Supreme Court rejected both claims, Treesh, 739 N.E.2d at 763-67, 779, and the United States Supreme Court denied Treesh's petition for a writ of certiorari, Treesh v. Ohio, 533 U.S. 904, 121 S.Ct. 2247, 150 L.Ed.2d 234 (2001).

B. State Post-Conviction Proceedings

The state trial court summarily dismissed Treesh's petition for post-conviction relief without an evidentiary hearing. On appeal, the Ohio Eleventh District Court of Appeals affirmed the trial court's denial of post-conviction relief. State v. Treesh, No. 97-L-080, 1998 WL 964528, at *9 (Ohio Ct.App. Dec. 18, 1998). The Ohio Supreme Court summarily dismissed Treesh's appeal, concluding that it did not present a substantial constitutional question. State v. Treesh, 85 Ohio St.3d 1476, 709 N.E.2d 848 (1999).

C. Federal Habeas Corpus Proceedings

In 2002, Treesh filed the instant petition for writ of habeas corpus. The district court denied Treesh's petition, Treesh v. Bagley, No. 1:02 CV 462, 2007 WL 1039081, at *64 (N.D.Ohio Mar.31, 2007), and granted a COA as to Claims 2 (the introduction of Treesh's statements were obtained in violation of his constitutional rights) and 15(c) (he was denied the effective assistance of counsel by trial counsel's failure to exclude certain jurors), id. at *67-69. We denied Treesh's request to certify additional claims for appeal.

II. ANALYSIS

A. Standard of Review

We review the district court's decision to grant or deny a habeas petition de novo. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir.2009). Because Treesh filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), we may grant the writ "with respect to a `claim that was adjudicated on the merits in state court proceedings' if the state court's decision `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Murphy, 551 F.3d at 493 (quoting § 2254(d)(1)). "A state-court decision is contrary to clearly established federal law `if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Id. at 493-94 (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "A state-court decision is an unreasonable application 429of clearly established federal law if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case, or if it either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context." Id. at 494 (quotation marks and citations omitted).

"[C]learly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412, 120 S.Ct. 1495. Moreover, "[t]he state court decision need not cite Supreme Court cases, or even evince an awareness of Supreme Court cases, `so long as neither the reasoning nor the result of the state-court decision contradicts them.'" Williams v. Bagley, 380 F.3d 932, 942 (6th Cir.2004) (quoting Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam)).

B. Miranda Violation

Treesh argues that the trial court admitted statements obtained from him in violation of Miranda. Specifically, he contends that he was never fully apprised of his Miranda rights, he did not knowingly and intelligently waive those rights, his request for counsel was ignored, his statements were not voluntary, and the state court's conclusions to the contrary were contrary to or involved an unreasonable application of clearly established federal law.

1. Sufficiency of Warnings

In Miranda, the Supreme Court established "certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation." Duckworth v. Eagan, 492 U.S. 195, 201, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). In particular, Miranda prescribed the following four warnings:

[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Although these precise words do not have to be used, "the warnings [must] reasonably convey to a suspect his rights as required by Miranda." Florida v. Powell, ___ U.S. ___, 130 S.Ct. 1195, 1204, ___ L.Ed.2d ___ (2010) (internal quotation marks and alterations omitted).

When Officer Janusczak arrested Treesh around 12:15 a.m. on August 28, 1994, he recited a full set of Miranda warnings. He then asked Treesh if he understood his rights. After Treesh failed to respond, Janusczak began to repeat the warnings, but Treesh interrupted him and said "Yeah, yeah, I know." The Cleveland Police Department held Treesh in a cruiser at the scene of his arrest until the Euclid Police Department took over custody. Treesh was then transported to the Euclid City Jail, where he showered before being transported to the Eastlake police station around 1:30 to 2:30 a.m. When Treesh arrived at the station, he was immediately taken into a booking room where Lieutenant Doyle gave Treesh the following version of the Miranda warnings:

You understand you're under arrest? You've been arrested before.

Do you understand your Miranda rights? I'm going to ask you some questions over the next hour or so, two hours or three hours. You have a right to answer the questions that I ask, or you can stop me at any time. If you can't afford an attorney, one will be appointed.

Do you understand me? Okay.

According to Doyle, Treesh twice indicated during this interview that he understood his rights. He did not affirmatively request an attorney or invoke his right to remain silent. Instead, Treesh agreed to talk to Doyle and was then interrogated for approximately one hour and forty-five minutes. Sometime during the interview, Doyle asked Treesh if he remembered his rights:

Q: Do you understand your Miranda rights? Okay, I told them to you before, right? Why don't you tell me.

A: I have the right to remain silent. Anything I say can and will be used against me in a court of law, blase, blase, blase.

Q: You have a right to an attorney. Okay.

After this interview, Treesh was placed in a jail cell, but was awakened shortly before 7:00 a.m. and returned to the booking room. Doyle read the Miranda warnings to Treesh before beginning this interview:

DOYLE: Before we start talking again, just as I told you before, you know your Miranda rights. You know I'm a police officer. You know you're under arrest, you're at the police station. I'm going to ask you some questions—

TREESH:—rights before.

DOYLE: Pardon?

TREESH: You gave me the rights before.

DOYLE: Okay, and I plan on continuing doing that. What I have to tell you, though, again, I'm going to ask you questions and you don't have to answer the questions.

TREESH: Uh-huh.

DOYLE: If you decide to answer the questions, you can stop me at any time. You have a right to an attorney.

TREESH: I already know all my rights.

DOYLE: Okay, but I'm going to tell you them.

TREESH: Okay.

DOYLE: If you can't afford one, one will be appointed for you. Then I've got to say, will you talk to me anyway?

TREESH: Yeah.

DOYLE: Do you understand your rights?

TREESH: Yeah.

Around 7:50 a.m., FBI Special Agent Alford advised Treesh, both orally and in writing, of his Miranda rights. The form Alford gave Treesh included all four required Miranda warnings. Treesh signed the form indicating that he waived those rights. Alford interviewed Treesh for about an hour to an hour and a half. At 10:40 a.m., Doyle interviewed Treesh again. During that interview, he again advised Treesh of his Miranda rights, both orally and in writing, and obtained a written waiver from Treesh. Around 2:00 p.m., Doyle interviewed Treesh and Brooks together. When Doyle told them that the store clerk was alive and had made a statement to police, they requested an attorney. This was Treesh's first request for an attorney since being arrested.^[1] Treesh indicated that he would give a 431statement, but only if they assured him they would not seek the death penalty. When Doyle told him they would not make any deals, Treesh refused to give any statements regarding their involvement in the Vine Street News robbery and murder. However, Treesh and Brooks spoke about the involvement of others during the Eastlake murder and of crimes committed in other states.

The Ohio Supreme Court concluded that the warnings that Treesh received from Doyle before and during his first interrogation were incomplete. Treesh, 739 N.E.2d at 764-65. Although Treesh testified that Janusczak did not read the Miranda warnings upon his arrest, the Ohio Supreme Court affirmed the trial court's implicit conclusion that the arresting officer did recite all four Miranda warnings. Id. at 765 ("Though the testimony at the suppression hearing conflicted as to whether the arresting officer actually recited the Miranda warnings, the trial court implicitly found the arresting officer's testimony about the arrest [to be] more credible than Treesh's.... We will not substitute our judgment for that of the trial court on this issue." (internal citation omitted)). Treesh has not presented clear and convicting evidence to indicate that this factual conclusion was erroneous. See James, 470 F.3d at 643.

The Ohio Supreme Court went on to conclude that Janusczak's "full arrest warning, viewed in conjunction with the partial rewarnings at the interrogations, indicates that Treesh was sufficiently apprised of his Miranda rights." Treesh, 739 N.E.2d at 765. The question before us, then, is whether the Ohio Supreme Court's conclusion that Doyle's incomplete warnings were sufficient to remind Treesh of the previously recited Miranda rights was contrary to or an unreasonable application of clearly established federal law. We hold that it was not.

In reaching its conclusion, the Ohio Supreme Court relied on Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Treesh, 739 N.E.2d at 764. The Supreme Court in Fields concluded that a suspect did not need to be readvised of his Miranda rights, which he had waived in writing before the initiation of a polygraph examination, because "the circumstances [had not] changed so seriously that his answers no longer were voluntary" and his waiver was still knowing and intelligent. 459 U.S. at 47-48, 103 S.Ct. 394. Since Fields, "[t]he courts have generally rejected a per se rule as to when a suspect must be readvised of his rights after the passage of time or a change in questioners." United States v. Weekley, 130 F.3d 747, 751 (6th Cir.1997) (concluding that officers did not need to readvise suspect of his Miranda rights where he was read his rights upon his arrest, reminded of his rights during transport and again in the elevator before he was questioned) (internal quotation marks omitted). Instead, we apply a totality-of-the-circumstances test when considering whether a delay between reading the Miranda warnings and custodial interrogation requires the interrogating officers to readvise the suspect of his Miranda rights. Id. at 751-52.

432Under Fields, additional warnings are only required if the circumstances seriously changed between the initial warnings and the interrogation. Fields, 459 U.S. at 47, 103 S.Ct. 394. Between Janusczak's warnings and Doyle's questioning of Treesh, he was taken first to the Euclid City Jail then to the Eastlake Police Department. However, only approximately two hours had passed between his arrest and his interrogation. Additionally, Doyle partially readvised Treesh of his Miranda rights, which alerted Treesh to the fact that he could still invoke those rights. Treesh's recitation of at least three of those rights during his interview also demonstrates that he was aware of his rights. Accordingly, the Ohio Supreme Court's conclusion that Doyle was not required to fully readvise Treesh of his Miranda rights was not contrary to or an unreasonable application of Fields, particularly in light of the application of Fields by our sister circuits. See, e.g., United States v. Clay, 408 F.3d 214, 222 (5th Cir.2005) (no need for rewarning where there was no evidence that suspect no longer understood the warnings or did not understand their applicability to interrogation that occurred two days after initial warning); United States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.1986) (Miranda rights did not need to be reread after forty minute lapse); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.1986) (rights voluntarily waived where suspect was twice advised of rights over a three-hour period notwithstanding change of interview locations); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (five-hour interval between first and second interviews did not invalidate suspect's waiver given before the first interview); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir.1984) (change in interrogators and three-hour lapse did not render confession inadmissible); United States ex rel. Henne v. Fike, 563 F.2d 809, 814 (7th Cir.1977) (nine hours between warnings and waiver not too long).

2. Waiver

Treesh contends that the Ohio Supreme Court's conclusion that Treesh heard and understood the Miranda warnings recited by Janusczak and that he waived those rights involved unreasonable applications of clearly established federal law. He also argues that the state courts failed to make a determination as to whether Treesh's waiver was knowing and intelligent. Instead, Treesh contends that the Ohio Supreme Court wrongly consolidated its analysis of the voluntariness of the waiver with its analysis of whether Treesh's waiver was made knowingly and intelligently. We consider that argument first.

a. Knowing and intelligent waiver

We begin by noting that to the extent Treesh raised this issue before the Ohio Supreme Court, he failed to articulate clearly that he was challenging whether his waiver was knowing and intelligent. Given Treesh's failure to clearly raise the issue before the Ohio Supreme Court, it is not surprising that the court's treatment of the issue was not entirely cogent. Nonetheless, the Ohio Supreme Court implicitly concluded that Treesh's waiver was knowing and intelligent. Although the Ohio Supreme Court never explicitly stated that Treesh made a knowing and intelligent waiver of his rights, it acknowledged that waivers must be knowing and intelligent. Treesh, 739 N.E.2d at 763-64 ("It is well established that a defendant who is subjected to custodial interrogation must be advised of his or her Miranda rights and make a knowing and intelligent waiver of those rights before statements obtained during interrogation will be admissible."). It also considered factors relevant to that 433analysis. For example, in examining the facts underlying his claim, the court noted that Doyle testified that Treesh did not appear to be under the influence of drugs or alcohol, and that Treesh acknowledged awareness of his rights several times throughout the interviews and eventually signed two written waivers of his rights. Id. at 764-65. The court held that "Treesh was sufficiently apprised of his Miranda rights," id. at 765, and went on to conclude that "appellant's waiver was not improperly obtained," id. at 766.

A suspect may waive his Miranda rights "provided the waiver is made voluntarily, knowingly, and intelligently." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "The waiver inquiry `has two distinct dimensions.'" Berghuis v. Thompkins, 560 U.S. ___, 130 S.Ct. 2250, 2260, ___ L.Ed.2d ___ (2010) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran, 475 U.S. at 421, 106 S.Ct. 1135. An express written or oral statement of waiver is not required. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Moreover, although mere silence is not enough to establish a waiver, "silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may [] support a conclusion that a defendant has waived his rights." Id. Thus, "[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." Thompkins, 130 S.Ct. at 2262.

The Ohio Supreme Court's conclusion that Treesh waived his rights was not an unreasonable application of federal law. When Treesh failed to respond after Janusczak asked Treesh if he understood the rights just read to him, Janusczak began to recite the Miranda warnings again. Treesh interrupted him, however, and said "Yeah, yeah, I know." He later indicated to Doyle that he understood his rights (admittedly after an incorrect recitation of those rights), and agreed to talk. Additionally, Treesh was able to at least partially recite his Miranda rights. Although he never specifically stated that he waived his rights, such a showing is not required to prove waiver. See id. at 2261. Treesh's actions indicated that he was aware of his rights and that he waived them. He never invoked his right to counsel or his right to silence. Considering the circumstances, the Ohio Supreme Court's conclusion that Treesh waived those rights was not an unreasonable application of federal law.

Additionally, the record indicates that the Ohio Supreme Court did not unreasonably apply federal law in concluding that Treesh's waiver was knowing and intelligent. To be deemed knowing and intelligent, "[t]he Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Spring, 479 U.S. at 574, 107 S.Ct. 851. Instead, "we examine `the particular facts and circumstances surrounding [the] case, including the background, experience, and 34conduct of the accused,'" Garner v. Mitchell, 557 F.3d 257, 260 (6th Cir.2009) (alterations in original) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)), to determine "whether the `suspect [knew] that he [could] choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time,'" id. (alterations in original) (quoting Spring, 479 U.S. at 574, 107 S.Ct. 851). "[T]he Supreme Court has never said that impairments from drugs, alcohol, or other similar substances can negatively impact" a suspect's waiver of his Miranda rights. Matylinsky v. Budge, 577 F.3d 1083, 1095 (9th Cir. 2009).

The evidence supports the Ohio Supreme Court's implicit conclusion that Treesh knowingly and intelligently waived his rights. He appears to have understood the rights Janusczak read to him, evidenced by his interrupting Janusczak's second recitation of those rights and saying "Yeah, yeah, I know."^[2] Additionally, he continuously told officers who interrogated him that his rights had been read to him and was even able to partially recite those rights. Moreover, every officer who interrogated Treesh testified that he appeared to be coherent, was not confused or disoriented by the questions they asked, and did not appear to be under the influence of drugs or alcohol. In further support of the conclusion that Treesh made a knowing and intelligent waiver of his rights, Treesh ultimately signed a written waiver. Treesh later testified that he was familiar with the criminal justice system, that he knew his rights, and that he knew where he was when he arrived at the Eastlake Police Station. Given the officer's testimony regarding Treesh's mental state, as well as Treesh's statements to police and other indications that he understood his rights, it was not unreasonable for the Ohio Supreme Court to conclude that Treesh knowingly and intelligently waived his Miranda rights.

b. Voluntariness of the waiver

In his brief, Treesh contends that "even if [he] had been properly warned of and had knowingly waived his Miranda rights, his statements were not voluntary," because he "was coerced into confessing when Officer Doyle lied to him by falsely claiming that a video tape of the crime existed, and by exploiting Treesh's desire to exonerate his girl friend." Treesh also argues that the officers were "overreaching" by exploiting Treesh's exhaustion and cocaine-induced high. Nonetheless, he cites no case law in support of his argument.

"[I]t is a `settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.'" United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)); see also United States v. Layne, 192 F.3d 556, 566-67 (6th Cir.1999) (deeming issue waived where defendant did not make a legal argument regarding the issue). Because Treesh has not developed a legal argument regarding the voluntariness 435of his statement, he has forfeited this issue on appeal.

C. Ineffective Assistance of Counsel

Treesh asserts that he was denied the effective assistance of counsel when trial counsel failed to challenge jurors Cynthia Barth and Barbara Modica for cause. Cynthia Barth took paralegal classes taught by the prosecutor in this case, Charles Coulson. The trial judge asked Barth whether "[t]he fact that [Coulson] was [her] instructor[] would ... put [her] in a position that [she] could not listen to the case and render a fair and impartial verdict?" Barth responded that it would not. Coulson followed up on the issue with the following exchange:

Coulson: Mrs. Barth, I see you are a paralegal. Did I help you get there?

Barth: Yes.

...

Coulson: Do you think your experience as a paralegal would in any way interfere with your ability to listen to the law as the Judge gives it to you and apply it in this case?

Barth: No, I think it would help actually.

Coulson: You think you might be able to understand these instructions even better?

Barth: Hopefully.

Coulson: Well if I did any good, I hope so. I had you for research and writing?

Barth: Yes.

Coulson: I think you mentioned that.

Barth: Actually I think that your paralegal was there more than you were. I didn't mean to embarrass you.

Treesh's trial counsel did not ask Barth any questions about her relationship with Coulson. Counsel passed for cause and Barth was seated as a juror.

During voir dire, Modica admitted that she had seen media reports about the case and made statements suggesting that she was predisposed in favor of the death penalty. Modica stated that she had read three to four articles about the case in the Cleveland Plain Dealer, that she "followed" the case, found it interesting, had discussed the case with friends (but not at great length), and that she would presume the articles were "pretty much accurate." However, she noted that she did not believe everything she read in the newspaper. Modica also stated that she would be able to ignore what she read and decide the case based on the evidence presented in the courtroom. Treesh's counsel did not follow-up regarding Modica's exposure to the case. In response to her statement that she believed in the death penalty, however, Treesh's counsel had the following exchange with Modica:

Hawkins: You indicated to both the Judge and the Prosecutor that you favor the death penalty, that correct?

Modica: When it's warranted.... It seems to me that if someone is judged guilty of a crime that's heinous enough to even bring that charge against him, if he's guilty I don't see even why he should be up and walking around.

Hawkins: Now, you said heinous crime, what crimes did you have in mind when you said that?

Modica: Well, murder is what I am thinking.

Hawkins: Do you think anybody that purposely kills another, purposely murders another themselves should be put to death?

Modica: No.... If it was something happens that wasn't planned ahead of time, or—I don't know exactly.... I am thinking maybe if you did it out of a moment of instant passion, or something like that.

Nonetheless, Modica also mentioned several factors that would impact her decision regarding the death penalty, including a person's reasons for committing murder, whether he was mentally retarded or had developmental difficulties, and whether he was under the influence of drugs. She also stated that she would be able to make a decision based on the evidence presented and apply the law as directed by the judge. Treesh's counsel passed for cause as to Modica and she was seated as a juror.

1. Legal Standard

We engage in a two-part inquiry when reviewing ineffective-assistance-of-counsel claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We are not required to "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. 2052. For example, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. Because "it is easier to dispose of [Treesh's] ineffectiveness claim on the ground of lack of sufficient prejudice," we do not determine whether trial counsel's performance was deficient. Id.

Treesh asserts that no state court evaluated the prejudice prong of Strickland, and that we should therefore not apply AEDPA deference to that prong. We disagree. In discussing the controlling law for ineffective assistance of counsel claims, the Ohio Supreme Court cited the appropriate prejudice standard under Strickland. Treesh, 739 N.E.2d at 778. In rejecting the specific claims at issue here, it explained as follows:

Treesh contends that his counsel were ineffective for failing to challenge two jurors, Cynthia Barth and Barbara Modica, during voir dire. Treesh argues that counsel should have challenged Barth because she had taken paralegal classes taught by the prosecutor, Charles Coulson. Treesh claims that counsel should have challenged juror Modica due to her media exposure about the case and her alleged predisposition in favor of the death penalty. We find both contentions meritless. It is unlikely that a challenge for cause, if made, would have succeeded in either case. Barth testified that her past affiliation with Coulson's paralegal course would not impair her ability to render a fair and impartial verdict. Likewise, though Modica admitted exposure to some newspaper articles about the case, and admitted that she favored the death penalty "[w]hen it's warranted," she stated that she had not formed an opinion about the case and that she could fairly and impartially weigh the evidence presented.

Id. at 779. Although the Ohio Supreme Court did not use the word "prejudice" in this particular discussion, it is clear that its conclusion was based on the prejudice prong. The court reasoned that "[i]t is unlikely that a challenge for cause, if made, would have succeeded in either case." Id. This clearly entails an adjudication 437on prejudice grounds. However, because the court did not set out the general juror-bias standard in discussing whether trial counsel's failure to challenge the jurors for cause was prejudicial, we review the claim through AEDPA's contrary-to clause. Packer, 537 U.S. at 8, 123 S.Ct. 362 (explaining that where the state court does not cite federal law, we may only grant habeas "so long as neither the reasoning nor the result of the state-court decision contradicts [federal law]").

To establish prejudice, Treesh "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Strickland defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. To show prejudice arising out of trial counsel's failure to challenge a juror, however, Treesh must show that the juror was biased against him. Johnson v. Luoma, 425 F.3d 318, 328 (6th Cir.2005). If a biased juror was impaneled, "prejudice under Strickland is presumed, and a new trial is required." Hughes v. United States, 258 F.3d 453, 463 (6th Cir.2001).

Bias may be actual or implied. See Johnson, 425 F.3d at 326. "Actual bias is `bias in fact'—the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." Hughes, 258 F.3d at 463 (citation and internal quotation marks omitted). "The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain `extreme' or `exceptional' cases, courts should employ a conclusive presumption that a juror is biased." Johnson, 425 F.3d at 326 (quoting United States v. Frost, 125 F.3d 346, 379 (6th Cir.1997)). We may presume bias "only where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances." Id. (internal quotation marks and citation omitted). Examples of such a relationship are "that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction." Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring).

2. Cynthia Barth

Treesh asserts that we may presume that Barth was biased against him based on her student-teacher relationship with Coulson, and that she was actually biased. First, as to implied bias, we have previously expressed doubt over the continued viability of the doctrine of implied bias after Smith. See Johnson, 425 F.3d at 326 ("Courts that have reviewed the Smith decision, including this circuit, have suggested that the majority's treatment of the issue of implied juror bias calls into question the continued vitality of the doctrine."). Nonetheless, even accepting its continued viability, there is no Supreme Court precedent recognizing implied bias from a mere student-teacher relationship. Although Coulson was the instructor for Barth's research and writing course, Barth stated that she thought his "paralegal was there more than" he was. There is nothing in the record that indicates that Coulson's and Barth's relationship rose to the level of the sort of extreme or exceptional case where bias is conclusively presumed. Thus, the Ohio Supreme Court's failure to find implied bias was not contrary to clearly established federal law.

438Additionally, the record does not establish actual bias. Barth and Coulson did not appear to have had a close relationship. Barth also indicated that Coulson's status as her former instructor would not put her in a position such that she "could not listen to the case and render a fair and impartial verdict." Finally, she swore "to well and truly try the issue joined between the parties in this case and a true verdict enter according to the evidence." Considering Barth's ability to promise to be impartial and the lack of evidence in the record indicating she was actually biased, we agree with the Ohio Supreme Court's conclusion that a challenge for cause against Barth would have most likely been unsuccessful. Without actual or implied bias, Treesh cannot demonstrate prejudice from the seating of Barth.

3. Barbara Modica

Treesh asserts that Modica was actually biased against Treesh, given her predisposition in favor of the death penalty and her prior exposure to media coverage of the case. "[I]t is beyond question that mere prior knowledge of the existence of the case, or familiarity with the issues involved, or even some preexisting opinion as to the merits, does not in and of itself raise a presumption of jury taint." DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir.1998) (en banc). "Where pretrial publicity cannot be presumed prejudicial, [we] must then determine whether it rises to the level of actual prejudice." Foley v. Parker, 488 F.3d 377, 387 (6th Cir.2007). To assess actual prejudice, we review the voir dire of prospective jurors. Id. "The relevant question is `did [the] juror swear that [she] could set aside any opinion [she] might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed.'" Id. (quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). Modica swore she could set aside any prior opinion, and nothing in the record indicates that her prior exposure to the case via media coverage undermined her promise to be impartial.

Similarly, Modica's statements regarding the death penalty do not demonstrate actual bias. "[A] prospective juror may be excluded for cause because of his or her views on capital punishment ... [when] the juror's views would `prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). "A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require [her] to do." Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Nonetheless, after carefully reviewing the record, there is nothing to indicate that Modica's views on the death penalty would have prevented her from returning anything less than a death sentence. It is true that Modica initially indicated that she thought that anyone guilty of murder should not be "up and walking around." However, when pressed to consider the issue further, she admitted that she did not believe that everyone who purposely murdered should be sentenced to death. She explained that such a sentence may not be warranted when the murder was the result of momentary passion, and indicated that she would consider factors such as why the defendant committed the murder, what the circumstances were, whether the defendant was mentally retarded or had developmental difficulties as a child, and whether he was using drugs at the time. These statements suggest that 439Modica would not "automatically vote for the death penalty in every case," and demonstrate that she could take into consideration mitigating factors. Accordingly, the Ohio Supreme Court's conclusion that it was unlikely that Modica would have been excluded pursuant to a challenge for cause is not contrary to clearly established Supreme Court precedent.

D. Certificate of Appealability

Treesh also argues that he is entitled to a COA on his claim that lethal injection as conducted in Ohio violates the Eighth Amendment. Under AEDPA, an appeal from the denial of a writ of habeas corpus may not be taken unless a COA has been issued. 28 U.S.C. § 2253(c)(1). A COA may not issue unless "the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). We decline to expand Treesh's COA, because he has not "made a substantial showing of the denial of a constitutional right." See Cooey (Biros) v. Strickland, 589 F.3d 210 (6th Cir.2009).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's denial of Treesh's petition.

CLAY, Circuit Judge, concurring.

I agree with the majority opinion that Treesh has failed to present clear and convincing evidence that Officer Janusczak did not properly administer the Miranda warnings to Treesh upon his arrest. However, I write separately to note that there might be other cases containing multiple sets of warnings where later inaccurate warnings render any subsequent statements inadmissible under Miranda because they create confusion as to whether the suspect was misled or confused regarding his Miranda rights.

In the instant case, Officer Janusczak testified that immediately after he handcuffed Treesh, he recited the full Miranda warnings and asked Treesh whether he understood his rights. Treesh gave no response. Officer Janusczak began to repeat the warnings, whereupon Treesh turned and said "Yeah, yeah, I know." (J.A. at 3528; Supp. Tr. at 15). On cross-examination, Officer Janusczak further testified that he "make[s] it a point to mirandize everybody [he] arrest[s]," regardless of whether he plans to interrogate them. (J.A. at 3538, Supp. Tr. at 25). Petitioner's only evidence to the contrary is his denial that he received Miranda warnings upon arrest. Based on this evidence, we cannot dismiss the state court finding that Officer Janusczak properly administered the Miranda warnings to Treesh and that Treesh responded with a statement indicating that he knew and understood those rights. Furthermore, because the circumstances between the arrest and the interrogation two hours later had not changed so significantly that the officers in this case were required to readvise Treesh of his Miranda rights under Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), Treesh's subsequent statements were not made in violation of his Miranda rights.

Nonetheless, I hesitate to adopt, as the majority does, the state court's finding that the defective warnings given to Treesh by Lieutenant Doyle at the outset of his interrogation "reminded" Treesh of the previously administered correct warnings. Treesh's statements are admissible not because the partial warnings were an adequate reminder of Treesh's rights, but because the officers were not required to readvise Treesh of his rights under these circumstances. Conversely, in a case where a suspect has not clearly acknowledged that he understood his rights and a 440later set of inaccurate warnings could have counteracted the accurate warnings or confused the suspect as to the true nature of his rights, his subsequent confession could be inadmissible.

In addition, I write separately to note that I concur with the majority's conclusion that Treesh is not entitled to an expansion of his COA on his lethal injection claim, but for a different reason. Treesh has already submitted a COA application to this Court, which was denied on September 2, 2008, in which he did not ask this Court to grant a COA on this claim. Thus, Treesh has forfeited this claim.

For the foregoing reasons, I respectfully concur.

[1] Treesh insists that he made an initial request for counsel when he first arrived at the booking room of the Eastlake Police Department. The Ohio Supreme Court, however, concluded that he did not make such a request. Treesh, 739 N.E.2d at 766. "A federal court is to apply a presumption of correctness to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this presumption." James v. Brigano, 470 F.3d 636, 643 (6th Cir.2006) (citing 28 U.S.C. § 2254(e)(1)). This standard also applies to state appellate court findings of fact. See Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Treesh has not met that burden. Simply suggesting that the other witnesses were dishonest or inaccurate does not constitute clear and convincing evidence.

[2] Treesh contends that the fact that he repeatedly indicated that he understood the Miranda warnings being read to him, despite the fact that those warnings were either inaccurate or incomplete, indicates that he did not understand his rights. We disagree. Although Treesh never objected when inaccurate warnings were read to him, the remainder of his actions indicated he understood his rights. He repeatedly said he knew his rights and that they had already been read to him. In addition, he was able to partially recite those rights during his interrogation. Accordingly, we do not find this fact persuasive.