Darryl Durr | Murderpedia, the encyclopedia of murderers

Darryl M. DURR

Classification: Murderer

Characteristics: Kidnapping - Rape

Number of victims: 1

Date of murder: February 1, 1988

Date of birth: June 26, 1963

Victim profile: Angel Vincent (female, 16)

Method of murder: Strangulation with a dog chain

Location: Cuyahoga County, Ohio, USA

Status: Executed by lethal injection in Ohio on April 20, 2010

United States Court of Appeals
For the Sixth Circuit

opinion 00-3353

clemency report

Summary:

Durr kidnapped 16-year-old Angel Vincent from her home while her parents were away. He raped and strangled her with a dog chain and hid her body inside two orange traffic barrels placed end-to-end in a Cleveland park.

Durr fathered a child with a teenage girlfriend who lived down the street from the victim and was obsessed with her. He named his newborn daughter Angel, and even made his girlfriend model the jeans he had removed from his victim the night she was abducted.

The victim's decomposed body was discovered by neighborhood kids three months later. The case remained unsolved until Durr was arrested on two unrelated rapes in September 1988. His girlfriend, Deborah Mullins, came forward and told authorities that Durr had picked her up the night Vincent disappeared.

Vincent was tied up in the back of the vehicle, Mullins said, and Durr said he was going to "waste" her. Durr dropped her off at an apartment, then returned about four hours later and placed Vincent's ring and bracelet on a coffee table. Durr boasted that he had strangled Vincent.

Durr was convicted largely on the testimony of Mullins, who said she waited months to tell police about the murder out of fear that Durr would harm her. Prosecutors said Mullins knew facts about the case that she could not have known without Durr telling her, including the location of the body.

Citations:

State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (Ohio 1991). (Direct Appeal)
Durr v. Mitchell, 487 F.3d 423 (6th Cir. 2007). (Habeas)

Final/Special Meal:

Declined.

Final Words:

"To the Vincent family who I believe are here and who believe I have caused so much pain and believe I have murdered their daughter, I am truly sorry you believe that way, having been through that pain myself. I had hoped DNA testing would allow me to prove my innocence, but unfortunately, that's not going to happen. To my momma minister, we are born in this life in struggle and I planned to go out in a struggle, but I want to make you proud. I'll go out in peace. To my cousin, please take care of my children. Tell my children and my wife I love them. To my wife, I love her. It's been 20 years in this life and I will see her in the next life."

ClarkProsecutor.org

Ohio Department of Rehabilitation and Correction

Inmate#: OSP #A207-889
Inmate: Darryl Durr
DOB: June 26, 1963
County of Conviction: Cayahoga County
Date of Offense: Between 1/31/88 and 4/3/88
Case Number: CR231670
Date of Sentencing: December 16, 1988
Presiding Judge: Ralph A. McAllister
Prosecuting Attorney: Carmen Marino
Institution: Ohio State Penetentiary
Convictions: Count 1: Aggravated Murder (Death), Count 2 Kidnapping (15-25 years), Count 3 Aggravated Robbery (15-25 years), Count 4 Rape (15-25 years).

Killer provides no comfort at execution

Teenage victim’s mother didn't get a confession or apology

By Alan Johnson - Dispatch.com

April 21, 2010

LUCASVILLE, Ohio - The tense silence in the Death House was broken by the sounds of a mother grieving for a daughter lost 22 years ago. Although Norma Godsey suffers from acute bronchitis and needs oxygen to breathe, she felt strongly that she had to be at the Southern Ohio Correctional Facility yesterday to watch the execution of Darryl Durr, the man who murdered her only child, Angel Vincent, 16, of Elyria. Godsey wheezed, coughed and sobbed almost continuously yesterday as she watched Durr injected with a lethal dose of thiopental sodium, a powerful anesthetic. When it was over, and Durr had drawn his last breath at 10:36 a.m., Godsey sighed deeply and said, "Oh, I'm so glad."

Her brother-in-law, Wesley Brewer, also a witness, had a more blunt reaction. "That son of a bitch is dead," Brewer said. "It was too humane. I'd rather have seen him die in the electric chair for what he did to your daughter."

Godsey told reporters later that she was unhappy that Durr had neither acknowledged that he killed her daughter nor apologized for it. "I just wanted him to ask me for forgiveness," Godsey said. "I just wanted him to tell me he was sorry ... "He was a monster," she added. "He took everything from me."

After her daughter's death, Godsey said, she began drinking heavily, smoked three packs of cigarettes a day and had a nervous breakdown. Part of Durr's rambling, two-minute final statement was directed at the victim's family, who, he said, "believe I have murdered their daughter. I am truly sorry you believe that way." He said he had hoped that DNA testing would prove he is innocent, "but unfortunately that's not going to happen."

The condemned man's dramatic reaction to the lethal drug might fuel the controversy about whether he had an allergic reaction or was simply fighting death to the last minute. About two minutes after the thiopental sodium began flowing, Durr raised his head and shoulders off the table - even though he was strapped down - and grimaced for about 10 seconds. His head then fell back and his mouth opened wide as the anesthetic took effect. Durr's eyes closed, but his chest heaved several times, and his throat convulsed spasmodically as if he was swallowing or gasping for air. From the time the drug began flowing, it took 11 minutes for Durr to die.

His attorneys had filed several last-minute appeals, including one saying he might have a strong allergic reaction to the killing drug. Julie Walburn, spokeswoman for the Department of Rehabilitation and Correction, said, "We have no reason to believe he was in any pain."

As Durr was dying, a howling sob went up from one of his witnesses, the Rev. Georgina Thornton, his spiritual adviser. "Oh, God! Oh, Jesus!" she exclaimed, continuing to sob for several minutes.

Court records show that Vincent disappeared from her home on Jan. 31, 1988. Earlier that evening, the girl had spoken with her mother by telephone, saying that her friend Deborah Mullins was with her and that Mullins' boyfriend, Durr, was coming to the house. Vincent was never seen alive again.

About three months later, three boys playing in a park found the girl's body wrapped in a blanket inside two orange barrels placed open end to open end. The body was so badly decomposed that the coroner could not accurately determine the cause of death. Durr was charged with Vincent's death in September 1988 after being arrested in the rapes of two other young women. He was the fourth Ohioan executed this year and the 37th since capital punishment resumed in 1999.

Ohio rapist who claimed drug allergy executed

By Matt Leingang - Associated Press

April 21, 2010

LUCASVILLE, Ohio — A serial rapist who strangled a 16-year-old girl in 1988 and who had argued he might be violently allergic to the state's execution drug was put to death Tuesday with no apparent complications.

As the lethal injection began, Darryl Durr clenched his fists, grimaced and held his head up for about 10 seconds before gently putting it down. It wasn't clear if he was in pain or emotionally reacting to the moment. Durr, 46, was pronounced dead at 10:36 a.m. at the Southern Ohio Correctional Facility in Lucasville. "He was a monster," the victim's mother, Norma Jean Godsey, said after witnessing the execution.

Durr kidnapped 16-year-old Angel Vincent from her home in Elyria on Jan. 31, 1988, while her mother and stepfather were away at a Super Bowl party, prosecutors said. He raped and strangled her with a dog chain and hid her body inside two orange traffic barrels placed end-to-end in a Cleveland park.

In what appeared to be an unusual legal maneuver, Durr's lawyers said last week they uncovered evidence of Durr's anesthesia allergy in his 800-page prison medical record. Ohio uses a large dose of anesthesia to execute condemned inmates, and Durr argued that no one knew how his body would react to the drug. The state countered that there was no proof that an allergic reaction would occur before Durr was already deeply unconscious and that the worst reaction would be death from low blood pressure and impaired breathing, effects that would be irrelevant in the context of an execution.

The U.S. Supreme Court declined to intervene Monday, upholding a judge's ruling that Durr waited too long to raise the allergy issue, then relied mainly on speculation to ask for time to investigate. Dennis Sipe, one of two attorneys who witnessed Tuesday's execution on behalf of Durr, said Durr's reaction more likely stemmed from physical pain rather than his feelings about being executed. "I think he had come to terms with the fact that the state was going to end his life," Sipe said.

In a final statement Tuesday, Durr addressed a minister, saying: "I planned to go out in a struggle, but I want to make you proud. I'll go out in peace." He also told Vincent's family he was sorry for their pain but maintained his innocence. He said he hoped the courts would have allowed further DNA testing on a necklace found on the victim. "Unfortunately, that's not going to happen," he said. Experts testified there would be no DNA on the necklace, and authorities couldn't guarantee the necklace had been preserved properly as evidence.

Prosecutors said Durr was obsessed with Vincent. Durr, then 24, had fathered a child with a teenage girlfriend who lived down the street from her. Durr named his newborn daughter Angel and made his girlfriend model the jeans he had removed from his victim the night she was abducted, prosecutors said. Three months later, several boys playing in the park noticed a foul odor and found Angel Vincent's decomposed body inside the traffic barrels.

Durr dropped her off at an apartment, Mullins said, then returned about four hours later and placed Vincent's ring and bracelet on a coffee table. Durr boasted that he had strangled Vincent, Mullins said. He was convicted largely on the testimony of Mullins, who said she waited months to tell police about the murder out of fear that Durr would harm her. Prosecutors said Mullins knew facts about the case that she could not have known without Durr telling her, including the location of the body.

Godsey said she was disappointed that Durr didn't admit his guilt and ask God for forgiveness. Wesley Brewer, Vincent's uncle, said he was glad Ohio has the death penalty but wished the state used the electric chair instead. Lethal injection, he said, is too humane for a killer like Durr.

Durr was the fourth inmate executed this year in Ohio, which is on pace to execute a state record 11 inmates in 2010.

State executes Darryl Durr of Elyria for 1988 murder of teenage girl

By Joe Guillen - Blog.Cleveland.com

April 20, 2010

The execution -- the 37th in Ohio since 1999 -- provided some closure to the family of the victim, Angel Vincent, a 16-year-old from Elyria whom Durr raped and killed in 1988. But family members did not get an apology, or even an admission of guilt from Durr. During an unusually long final speech, Durr said he regretted his innocence could not be proven by DNA testing of a necklace belonging to Angel. Multiple courts had rejected Durr's appeals to halt the execution.

Angel's mother expressed sorrow for Durr's family but was upset he didn't admit his guilt. "I just wanted him to say he was sorry," Norma Godsey said though tears after the execution. "I didn't know what I was going to think to watch that man die. But I'm not sorry I watched it." "He took everything from me," she said.

Angel was Godsey's only child. Godsey left Angel alone at their Elyria home the night of Jan. 31 to go to a Super Bowl party. Durr, who was 24 at the time, dated and lived with Angel's neighbor and classmate, Deborah Mullins. Mullins and Durr had a baby together weeks before the murder. Godsey said Durr named the baby Angel because he was obsessed with her daughter. The night Angel was home alone, Durr kidnapped her, strangled her with a dog chain and hid her body inside two construction cones, placed end to end, in a ravine near Denison Avenue and Fulton Road in Cleveland. Boys playing in the area discovered Angel's body three months later.

Godsey said she began to drink and smoke heavily after her daughter's death. Once a big sports fan, she hasn't watched a baseball or football game since, she said Tuesday. She said she even tried to commit suicide to be with her daughter. Godsey, who uses portable oxygen, wheezed and sniffled as she walked into the Death House at the Southern Ohio Correctional Facility. She sat down and asked for a bucket in case she became nauseous. She never had to use it.

TV screens inside the side-by-side witness rooms showed medical personnel preparing Durr for execution in a holding cell. He lay motionless as an IV site was established in each arm, a process that took about 13 minutes. Durr was then escorted into the execution chamber. Prison warden Donald Morgan stood over Durr as the execution team strapped him in at the ankles, knees, chest and wrists.

At 10:22, Morgan reached for the microphone in the room and offered Durr a chance to speak his last words: "To the Vincent family who I believe are here and who believe I have caused so much pain and believe I have murdered their daughter, I am truly sorry you believe that way, having been through that pain myself. I had hoped DNA testing would allow me to prove my innocence, but unfortunately, that's not going to happen. "To my momma minister, we are born in this life in struggle and I planned to go out in a struggle, but I want to make you proud. I'll go out in peace. To my cousin, please take care of my children. Tell my children and my wife I love them. To my wife, I love her. It's been 20 years in this life and I will see her in the next life."

A 5-gram dose of thiopental sodium, a type of anesthesia, was then sent through the tubes hooked up to Durr's left arm. A few minutes after he spoke, Durr picked his head up and looked at the witnesses. He put his head back down, then he sat up again as best he could and grimaced before opening his mouth to exhale.

One of the four witnesses at the execution on Durr's behalf then began to wail. "Oh, God," said Durr's spiritual adviser, the Rev. Georgina Thornton. "Oh, Jesus." As Durr's head eased back onto the bed, his eyes were closed and his mouth kept moving, as if he was mumbling. His left fist remained clenched. Durr lay motionless for a few minutes before a member of the execution team checked his breathing. A curtain was then pulled across the glass between the witness rooms and the execution chamber while a coroner examined Durr.

"That son of a bitch is dead," said Wesley Brewer, Angel's uncle and one of three witnesses from the victim's family. Godsey tried to quiet Brewer, but he continued. "It was too humane. I'd rather have seen him in an electric chair." The curtain was pulled back and Durr's body remained on the bed as the warden announced his time of death.

In one of his three appeals to halt the execution, Durr claimed an allergy to anesthesia. The appeal, along with two others, was denied by multiple courts, including the U.S. Supreme Court on Monday night. Ohio Department of Rehabilitation and Correction spokeswoman Julie Walburn said the execution went smoothly. "We have no reason to believe he was in any pain whatsoever," she said.

Darryl Durr Dead: Ohio Rapist Who Claimed Drug Allergy Executed

By Matt Leingang - HuffingtonPost.com

April 20, 2010

"He was a monster," the victim's mother, Norma Jean Godsey, said after witnessing the execution. Durr kidnapped 16-year-old Angel Vincent from her home in Elyria on Jan. 31, 1988, while her mother and stepfather were away at a Super Bowl party, prosecutors said. He raped and strangled her with a dog chain and hid her body inside two orange traffic barrels placed end-to-end in a Cleveland park.

The case remained unsolved until Durr was arrested on two unrelated rapes in September 1988. His girlfriend, Deborah Mullins, came forward and told authorities that Durr had picked her up the night Vincent disappeared. Vincent was tied up in the back of the vehicle, Mullins said, and Durr said he was going to "waste" her. Durr dropped her off at an apartment, Mullins said, then returned about four hours later and placed Vincent's ring and bracelet on a coffee table. Durr boasted that he had strangled Vincent, Mullins said. He was convicted largely on the testimony of Mullins, who said she waited months to tell police about the murder out of fear that Durr would harm her. Prosecutors said Mullins knew facts about the case that she could not have known without Durr telling her, including the location of the body.

Godsey, who now lives in Monticello, Ky., said Vincent was her only child. She drank and smoked heavily for four years after the murder, leading to chronic bronchitis and other health problems that require her to carry an oxygen tank. "He took everything from me," she said. Godsey said she was disappointed that Durr didn't admit his guilt and ask God for forgiveness. Wesley Brewer, Vincent's uncle, said he was glad Ohio has the death penalty but wished the state used the electric chair instead. Lethal injection, he said, is too humane for a killer like Durr.

Durr was the fourth inmate executed this year in Ohio, which is on pace to execute a state record 11 inmates in 2010.

Death Row Allergy Claim Fails to Delay Darryl Durr's Execution

Execution Comes Four Days After Durr's Appeal on Grounds He's Allergic to Anesthesia Denied

By Eamon McNiff - ABCNews.go.com

April 20, 2010

A death row inmate who tried to delay his execution by claiming he was allergic to the anesthesia used in the lethal injection was put to death today, right on schedule. Darryl Durr, 46, was declared dead at 10:36 a.m. ET. Julie Walburn from the Southern Ohio Correctional Facility, where the execution took place, said there were no complications and that the execution went smoothly.

A prison official who was present told ABC News that as the process began Durr clenched his fists and grimaced while holding his head up for about 10 seconds, before putting his head down. The official, who declined to be identified, said it wasn't clear whether Durr was in pain or reacting to the moment.

Durr had been convicted of the rape and murder of 16-year-old Angel Vincent in 1988. He is the 37th inmate executed in Lucasville, Ohio's so-called "death house" at the Southern Ohio Correctional Facility since 1999 and the fourth person to be executed in Ohio this year. "Serial rapist Darryl Durr kidnapped, raped, and murdered 16-year-old Angel Vincent. Durr's punishment finally gives justice to the family of the victim for Durr's brutal and unforgivable crimes," Ryan Miday, a spokesman for Cuyahoga County Prosecutor Bill Mason, told ABC News last night. Mason prosecuted Durr in his 1988 trial and has remained engaged in Durr's subsequent appeals.

Durr attempted last week what was called in reports a "unique" appeal, reportedly the first of its kind, when his defense lawyer Kathleen McGarry told the Ohio District Court Judge Gregory Frost that she found evidence that Durr was allergic to anesthesia after reviewing his 800-page medical history report, court records say.

McGarry said in court documents she wasn't aware of the exact allergy Durr had, but wanted to make sure it didn't include thiopental sodium, the anesthetic Ohio uses in its lethal injection. "One of the things the Ohio Constitution guarantees is that he has a quick and painless execution," McGarry said to the Associated Press last week. "If he's going to react to the anesthetic drugs in such a manner that he's going to have a violent reaction, either vomiting or seizures or whatever the spectrum is that could happen, then obviously the execution has problems," she said.

Ohio became the first state last year to switch to a single dose of anesthetic to put inmates to death, rather than the three-drug cocktail used by other states. A Columbia University Medical Center anesthesiologist filed an e-mail as part of Durr's appeal saying if he did have an allergy to thiopental sodium, it may pose a problem. "An allergic or other adverse reaction to some component of a general anesthetic might present a serious problem for an execution by lethal injection," the email from Mark Heath said.

McGarry cited other cases involving adverse reactions to execution methods in her appeal. In 1989, Texas death row inmate Stephen McCoy began choking and seizing after receiving lethal injection chemicals causing a witness to faint, according to reports. In 1992 death row prisoner Robyn Lee Parks' muscles in his jaw, neck, and abdomen began to spasm about two minutes after the drugs started to flow during his execution in Oklahoma. However, according to reports, the exact cause for those reactions was undetermined in each case.

Frost allowed the records to be reviewed, but on Friday he ruled there wasn't enough evidence given that the allergy could in fact impact the execution. Frost also said in his ruling that Durr's legal team waited too long to file this appeal, and relied too heavily on speculation for the appeal. "Durr presents this court with an unproven allergy that might have an unknown effect on his execution and asks for time to fill in details that may or may not rise to the level of demonstrating a likelihood of success," Frost wrote. "Speculation is not evidence, however."

The state hired their own expert to review the appeal, who found there was no evidence to say that Durr wouldn't already be unconscious from the anesthesia before any allergy would set in. Mark Dershwitz, a University of Massachusetts professor and physician, told the state in an e-mail submitted as part of the state's filing on the appeal that the worst type of allergic reaction to anesthesia would result in death from low blood pressure and impaired breathing. "Such effects are irrelevant in the context of an execution because they would occur after the inmate loses consciousness and because the intent is to bring about a rapid death," Dershwitz wrote.

According to Frost's ruling, Durr had dental surgery in 2004, and surgery for a hernia in 2007 and Frost wrote he could have known about his allergy as early as 2004. Durr was allegedly given hydromorphone in 2004 and 2007 following surgery with no ill effects. Hydromorphone is used in Ohio's backup execution method.

The appeal on the grounds of an allergy has been cited in reports as the first of its kind. The only appeal similar was convicted killer Richard Cooey's unsuccessful argument in 2008 that his obesity caused poor vein access. "It's a desperate twist on the 'cruel and unusual punishment' argument inmates have concocted to contest lethal injection," Miday said. "Too allergic to die won't work any better than Richard Cooey's 'too fat to die.'"

Witnessing Durr's execution this morning was McGarry, Durr's spiritual advisor Rev. Georgina Thornton, and Matthew Princehorn, a friend of Durr's according to Walburn. Also there to witness the exection was Norma Godsey, Angel Vincent's mother, Wesley Brewer, her uncle, and Corennia Hatfield, her aunt, Walburn said.

According to Walburn, Durr did not request a special last meal and had spent the day yesterday not eating or drinking, observing what he called a religious fast. "He didn't request a special meal at all," Walburn said. "The staff said he was very quiet, very easy to work with." McGarry could not be reached for comment.

Darryl Durr

ProDeathPenalty.com

On January 31, 1988, at approximately 10:50 p.m., Norma Jean O’Nan and her husband returned to their home in Elyria and discovered the front door unlocked, the lights and television on, and their sixteen-year-old daughter, Angel Vincent, missing. Only twenty minutes earlier, Mrs. O’Nan had spoken with her daughter by telephone to learn that Angel’s girlfriend, Deborah Mullins, was at her home and that Deborah’s boyfriend, Darryl Durr, was expected to arrive later in the evening. That was the last chance Mrs. O’Nan would have to speak to her daughter alive.

Mrs. O’Nan testified that Angel was wearing a hot pink sweater, a light pink and white checkered blouse, hot pink pants, and white tennis shoes when she and her husband left Angel home alone on the evening of January 31, 1988. After notifying the Elyria Police of Angel’s disappearance, Mrs. O’Nan searched her home to determine if any of Angel’s belongings were missing. Although Angel’s pink pants were found, Mrs. O’Nan’s search revealed the following items missing: an old lavender blanket with a hole in the center, a pair of black acid-washed denim jeans, Angel’s pink and white checkered blouse, light blue eyeglasses that Angel wore only in her home, a jean jacket that Angel had borrowed from a friend, an Avon necklace with an “A” charm attached, a small chain bracelet, an Avon slip-on bracelet, an inexpensive rhinestone ring and a dog chain that hung from her mirror. Mrs. O’Nan also discovered Angel’s handbag stuffed under her bed.

Three or four days later, Mrs. O’Nan confronted Deborah Mullins and Durr regarding the disappearance of her daughter, and was told by Durr that “you know how kids are, she probably ran away.” On April 30, 1988, three boys noticed a foul odor coming from two orange traffic barrels while playing in Brookside Park. The barrels and been placed open end to open end, and were underneath a railroad tie. Upon separating the barrels, the boys discovered a severely decomposed female body that had been wrapped in a dirty old blanket. A portion of a leg was visible through a large hole in the blanket. A deputy coroner testified that the only clothing found on the victim was a pink sweater and a pair of white tennis shoes. The pink sweater had been pushed up well above the victim’s breast area.

An initial external examination determined the body to be that of a young white female, who was in an advanced state of decomposition. The body was heavily infested with maggots and the body’s eyes and ears had been lost. There was also prominent evidence of animal activity about the inguinal and vulval regions of the body, and in and about the thighs. According to the deputy coroner, the decomposition was consistent with three months exposure. After examining the body, the deputy coroner concluded that the cause of death was homicidal violence. Since the body was so badly decomposed, the deputy coroner could not determine whether ligature marks, scrapes or tears indicating strangulation were present. There was no damage noted to the internal cartilaginous structures of the neck. The deputy coroner declined, however, to rule out strangulation as a cause of death since damage to these structures is not always present in young strangulation victims due to the flexibility of these structures. In addition, because the body was so severely infested with bacteria, testing for the presence of acid phosphates and spermatozoa was inconclusive.

In September, 1988, after Durr was arrested for two unrelated rapes, Deborah Mullins revealed her knowledge of Angel’s disappearance to the Cleveland Police Department. As the result of her information, an ankle X-ray obtained from Elyria Memorial Hospital, and dental records, the body discovered in Brookside Park was determined to be that of Angel Vincent. At trial, Deborah Mullins testified that on the evening Angel disappeared Deborah had asked Durr to drive to the house of one of Angel’s friends to retrieve a package of cigarettes for Angel. Durr agreed and left. Shortly thereafter, Durr returned to Deborah’s house and, instead of entering through the front door, began throwing stones at her upstairs bedroom window and blew his car horn for her to come out. Deborah and her baby, who had been fathered by Durr, left the house and entered Durr’s car where Durr brandished a knife toward both of them. As Durr was driving, Deborah heard noises from the back seat and after turning around discovered Angel bound on the rear floorboard. According to Deborah’s testimony, Angel was wearing black acid-washed denim jeans, a jean jacket, and tennis shoes when she was last seen in the back of Durr’s car. When Deborah asked Durr why Angel was bound in his car, Durr responded that he intended to “waste” her because “she would tell.” He never revealed just what Angel was going to tell.

After threatening the life of both Deborah and his baby, Durr let Deborah out of his car. He returned to her home three or four hours later. Upon returning, Durr told Deborah that he had “wasted” Angel and that she should pack her things because they were leaving. Durr drove Deborah and their baby to his wife’s, Janice Durr’s, Cleveland apartment. After dropping Deborah and the baby off, Durr left with a duffle bag containing two shovels. When Durr returned, he was wet and covered with snow. Upon entering the room, Durr placed a ring and bracelet that belonged to Angel on a coffee table. As he was falling asleep, Durr told Deborah that he had strangled Angel with a dog chain until she “pissed, pooped and shit and made a few gurgling sounds,” took her body to a park, wrapped it in a blanket, placed it between two construction cones, and left her by some railroad tracks.

Later that day or the next day, Durr burned a bag of clothing in the basement of Janice Durr’s apartment building and asked Deborah to model the black acid-washed jeans that Angel had worn on the evening of her abduction. Durr then drove Deborah, Janice Durr and his children to the west side of Cleveland where he burned another bag of items, and while driving from Cleveland toward Elyria, Durr threw Angel’s jean jacket out the car window. After arriving at Deborah’s home in Elyria, Deborah’s mother informed her that Mrs. O’Nan had come over and inquired about Deborah’s knowledge of Angels’s disappearance. Deborah testified that Durr threatened her and their baby’s life and instructed her to tell Mrs. O’Nan that Angel had been talking about running away. Deborah also testified that Durr took her and their baby to Edgewater Park where Durr threw Angel’s glasses over a cliff into the lake. A month or so later, while driving past the Cleveland Zoo, Durr pointed to a location and said, “Over there.” When Deborah questioned his statement, Durr replied, “You know what I am talking about.” Following a jury trial, Durr was convicted of aggravated murder; kidnapping; aggravated robbery and rape. The trial court followed the jury’s recommendation and sentenced Durr to death.

State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (Ohio 1991). (Direct Appeal)

Defendant was convicted by jury in the Common Pleas Court of one count of aggravated murder with specifications of kidnapping, aggravated robbery, and rape, all with violence specifications, and was sentenced to death. On appeal, the Court of Appeals for Cuyahoga County, Nahra, J., affirmed. On appeal, the Supreme Court, Holmes, J., held that: (1) trial court did not unreasonably or excessively restrict defense counsel's questioning during voir dire; (2) photographs of victim's body, although shocking, were more probative than prejudicial and were neither cumulative nor repetitive; (3) rape and aggravated robbery convictions, and corresponding capital murder specification, were supported by circumstantial evidence; and (4) death penalty was neither excessive nor disproportionate. Affirmed. Brown, J., concurred and filed opinion in which Moyer, C.J., joined. Wright, J., dissented and filed opinion.

On January 31, 1988, at approximately 10:50 p.m., Norma Jean O'Nan and her husband returned to their home in Elyria and discovered the front door unlocked, the lights and television on, and their sixteen-year-old daughter, Angel Vincent, missing. Only twenty minutes earlier, Mrs. O'Nan had spoken with her daughter by telephone to learn that Angel's girlfriend, Deborah Mullins, was at her home and that Deborah's boyfriend, appellant Darryl Durr, was expected to arrive later in the evening. That was the last chance Mrs. O'Nan would have to speak to her daughter alive.

Mrs. O'Nan testified that Angel was wearing a hot pink sweater, a light pink and white checkered blouse, hot pink pants, and white tennis shoes when she and her husband left Angel home alone on the evening of January 31, 1988. After notifying the Elyria Police of Angel's disappearance, Mrs. O'Nan searched her home to determine if any of Angel's belongings were missing. Although Angel's pink pants were found, Mrs. O'Nan's search revealed the following items missing: an old lavender blanket with a hole in the center, a pair of black acid-washed denim jeans, Angel's pink and white checkered blouse, light blue eyeglasses that Angel wore only in her home, a jean jacket that Angel had borrowed from a friend, an Avon necklace with an “A” charm attached, a small chain bracelet, an Avon slip-on bracelet, an inexpensive rhinestone ring and a dog chain that hung from her mirror. Mrs. O'Nan also discovered Angel's handbag stuffed under her bed.

Three or four days later, Mrs. O'Nan confronted Deborah Mullins and the appellant regarding the disappearance of her daughter, and was told by the appellant that “you know how kids are, she probably ran away.” On April 30, 1988, three boys noticed a foul odor coming from two orange traffic barrels while playing in Brookside Park. The barrels had been placed open end to open end, and were underneath a railroad tie. Upon separating the barrels, the boys discovered a severely decomposed female body that had been wrapped in a dirty old blanket. A portion of a leg was visible through a large hole in the blanket.

A deputy coroner testified that the only clothing found on the victim was a pink sweater and a pair of white tennis shoes. The pink sweater had been pushed up well above the victim's breast area. An initial external examination determined the body to be that of a young white female, who was in an advanced state of decomposition. The body was heavily infested with maggots and the body's eyes and ears had been lost. There was also prominent evidence of animal activity about the inguinal and vulval regions of the body, and in and about the thighs. According to the deputy coroner, the decomposition was consistent with three months' exposure.

After examining the body, the deputy coroner concluded that the cause of death was homicidal violence. Since the body was so badly decomposed, the deputy coroner could not determine whether ligature marks, scrapes or tears indicating strangulation were present. There was no damage noted to the internal cartilaginous structures of the neck. The deputy coroner declined, however, to rule out strangulation as a cause of death since damage to these structures is not always present in young strangulation victims due to the flexibility of these structures. In addition, because the body was so severely infested with bacteria, testing for the presence of acid phosphates and spermatozoa was inconclusive.

In September 1988, after appellant was arrested for two unrelated rapes, Deborah Mullins revealed her knowledge of Angel's disappearance to the Cleveland Police Department. As the result of her information, an ankle X-ray obtained from Elyria Memorial Hospital, and dental records, the body discovered in Brookside Park was determined to be that of Angel Vincent.

At trial, Deborah Mullins testified that on the evening Angel disappeared Deborah had asked the appellant to drive to the house of one of Angel's friends to retrieve a package of cigarettes for Angel. Appellant agreed and left. Shortly thereafter, appellant returned to Deborah's house and, instead of entering through the front door, began throwing stones at her upstairs bedroom window and blew his car horn for her to come out. Deborah and her baby, who had been fathered by the appellant, left the house and entered the appellant's car where the appellant brandished a knife toward both of them.

As the appellant was driving, Deborah heard noises from the back seat and after turning around discovered Angel bound on the rear floorboard.

According to Deborah's testimony, Angel was wearing black acid-washed denim jeans, a jean jacket, and tennis shoes when she was last seen in the back of appellant's car.

When Deborah asked the appellant why Angel was bound in his car, the appellant responded that he intended to “waste” her because “she would tell.” He never revealed just what Angel was going to tell.

After threatening the life of both Deborah and his baby, the appellant let Deborah out of his car. He returned to her home three or four hours later. Upon returning, appellant told Deborah that he had “wasted” Angel and that she should pack her things because they were leaving.

Appellant drove Deborah and their baby to his wife's, Janice Durr's, Cleveland apartment. After dropping Deborah and the baby off, the appellant left with a duffle bag containing two shovels.

When appellant returned, he was wet and covered with snow. Upon entering the room, appellant placed a ring and bracelet that belonged to Angel on a coffee table. As he was falling asleep, appellant told Deborah that he had strangled Angel with a dog chain until she “pissed, pooped and shit and made a few gurgling sounds,” took her body to a park, wrapped it in a blanket, placed it between two construction cones, and left her by some railroad tracks.

Later that day or the next day, appellant burned a bag of clothing in the basement of Janice Durr's apartment building and asked Deborah to model the black acid-washed jeans that Angel had worn on the evening of her abduction.

The appellant then drove Deborah, Janice Durr and his children to the west side of Cleveland where he burned another bag of items, and while driving from Cleveland toward Elyria, the appellant threw Angel's jean jacket out the car window.

After arriving at Deborah's home in Elyria, Deborah's mother informed her that Mrs. O'Nan had come over and inquired about Deborah's knowledge of Angel's disappearance. Deborah testified that appellant threatened her and their baby's life and instructed her to tell Mrs. O'Nan that Angel had been talking about running away. Deborah also testified that the appellant took her and their baby to Edgewater Park where the appellant threw Angel's glasses over a cliff into the lake. A month or so later, while driving past the Cleveland Zoo, appellant pointed to a location near a bridge and said, “Over there.” When Deborah questioned his statement, the appellant replied, “You know what I am talking about.”

Following a jury trial appellant was convicted of one count of aggravated murder, R.C. 2903.01, with specifications, pursuant to R.C. 2929.04(A)(7), that the murder was committed while the appellant was committing, attempting to commit, or fleeing after committing aggravated robbery, rape, and kidnapping, (2) kidnapping, R.C. 2905.01, with a violence specification, (3) aggravated robbery, R.C. 2911.01, with a violence specification, and (4) rape, R.C. 2907.02, with a violence specification.

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

HOLMES, Justice.

In his fourteen propositions of law, the defendant-appellant asserts various errors by the trial and appellate courts. This court has previously decided many of these legal questions, and they will therefore be disposed of accordingly. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.

After thoroughly reviewing each of appellant's propositions of law, we find none that has merit, and for the reasons stated below we uphold the appellant's convictions and sentence of death.

As his first proposition of law, the appellant argues that the trial court unreasonably and excessively restricted his questioning during the voir dire.

This court has long held that absent a clear abuse of discretion, no prejudicial error can be assigned to the examination of veniremen. State v. Ellis (1918), 98 Ohio St. 21, 120 N.E. 218, paragraph one of the syllabus; State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285, certiorari denied (1989), 489 U.S. 1071, 109 S.Ct. 1356, 103 L.Ed.2d 823.

Although R.C. 2945.27 affords the prosecution and defense the opportunity to conduct a reasonable examination of prospective jurors, State v. Anderson (1972), 30 Ohio St.2d 66, 59 O.O.2d 85, 282 N.E.2d 568, the trial court reserves the right and responsibility to control the proceedings of a criminal trial pursuant to R.C. 2945.03, and must limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of truth. State v. Bridgeman (1977), 51 Ohio App.2d 105, 109-110, 5 O.O.3d 275, 277, 366 N.E.2d 1378, 1383.

After reviewing the entire voir dire in this case, we find that by limiting defense counsel's statements, the trial court was attempting to prohibit counsel from lecturing or making legal arguments to the venire panel. The statements so restricted concerned the nature of circumstantial evidence, a juror's perception of the legal system, the function of the coroner's office, the nature of cross-examination, and the standard for judging witness credibility. Since such statements were overly broad and outside the scope of voir dire, we conclude that the trial court by prohibiting them did not abuse its discretion.

The appellant further argues that the prejudice he suffered from the trial court's restrictions during voir dire is evidenced by the impaneling of the jury after only four hours. We know of no law in this state, nor do we wish to create new law today, that establishes a minimum duration for a voir dire. Since we conclude that the trial court in the instant case allowed a reasonable examination of prospective jurors by defense counsel, we decline to accept appellant's argument. Accordingly, we overrule appellant's first proposition of law.

In his second proposition of law, the appellant argues he was prejudiced since the trial court denied defense counsel access to the record to proffer objections, reasons for the objections, and matters that occurred off the record.

App.R. 9(A) requires that “[i]n all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means,” and Crim.R. 22 requires the recording of proceedings in all serious offense cases. However, “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *.” Ohio Rule of Evidence 103(A).

After reviewing appellant's claims in the context of the record, we conclude that the trial court, by restricting the record, neither affected matters vital to appellate review nor affected appellant's substantial rights. Moreover, except for appellant's allegations regarding voir dire, no substantive proffer was made by appellant pursuant to App.R. 9(C) or 9(E) or otherwise to reconstruct what was said or to establish its importance. As a result, appellant waives any such error. State v. Brewer (1990), 48 Ohio St.3d 50, 61, 549 N.E.2d 491, 502; State v. Tyler (1990), 50 Ohio St.3d 24, 41-42, 553 N.E.2d 576, 596; United States v. Gallo (C.A.6, 1985), 763 F.2d 1504, 1529-1532, certiorari denied (1986), 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314.

Since appellant in the instant case has not complied with the above procedures, and has failed to show his substantial rights were affected, we cannot conclude that appellant was denied a fair trial. Accordingly, appellant's second proposition of law is not well-taken.

In his third proposition of law, appellant alleges that the trial court erred by instructing the jury that a sentencing phase would follow the guilt-determining phase of the trial. According to the appellant, such instruction presupposed guilt, undercut the presumption of innocence, and deprived him of a fair trial.

After a thorough and searching review of the record, we decline to accept appellant's claim. Throughout the entire trial, the court admonished and explained to the jurors that guilt is not to be presupposed merely because they were participating in a bifurcated, capital murder case. Moreover, there is no indication from any prospective juror questioned during voir dire that he or she presupposed guilt. Accordingly, appellant's third proposition of law is not well-taken.

In his fourth proposition of law the appellant claims the trial court erred by dismissing for cause a prospective juror who claimed that the trial experience would upset her.

In Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, the United States Supreme Court established the standard for the removal of prospective jurors as “ * * * whether the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Id. at 424, 105 S.Ct. at 852, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581. This court adopted and applied the Witt standard in State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, at paragraph three of the syllabus, vacated on other grounds (1985), 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452.

The venireman in question stated that she could not sit in judgment of others in a criminal case and that she would have difficulty being fair to both sides in the trial.

After seeing and hearing the prospective juror, the trial judge concluded that she would be unable to faithfully and impartially apply the law. We must therefore defer to this decision and reject appellant's fourth proposition of law. State v. Beuke, supra.

As his fifth proposition of law, the appellant claims the trial court erred by denying defense counsel's request to voir dire the jurors after newspapers were found in the jury room. The newspapers, which were immediately confiscated by the bailiff, contained an article which mentioned the appellant's prior convictions.

The voir dire conducted by the court revealed that none of the jurors had read the article. In addition, all of the jurors acknowledged that nothing except the evidence adduced at trial should influence their decision. Of the alternate jurors voir dired, only one had read the article. Since that alternate juror never served on the jury or deliberated, the effect of the article on that juror is moot.

Unless an appellant demonstrates otherwise, we should assume that the members of the jury followed their oaths and deliberated only upon the evidence adduced at trial. See State v. Zuern (1987), 32 Ohio St.3d 56, 60, 512 N.E.2d 585, 590, certiorari denied (1988), 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 872.

In this case, the jurors, in response to specific queries, affirmed their willingness and ability to decide the case fairly and impartially. Since appellant has failed to show otherwise, we reject appellant's fifth proposition of law.

As proposition of law number six, the appellant claims that the trial court improperly admitted hearsay testimony. According to the appellant, he was prejudiced by the hearsay as it enhanced the credibility of the state's key witness, Deborah Mullins. During the state's direct examination of Margaret Hale, Deborah Mullins's mother, the following testimony was recorded:

“Q. At the time that you talked with your daughter, what was the subject matter of that?

“MR. MILANO: Same objection.

“THE COURT: Overruled.

“A. That Darryl Durr trashed Angel.”

Evid.R. 801(C) defines “hearsay” as“ * * * a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Not only must the statement have been made by someone other than the testifying witness, and be repeated by the witness on the stand, but the statement repeated must derive its primary value by showing the truth of the matter asserted. Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140; Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St.3d 36, 42, 540 N.E.2d 1358, 1364.

When viewed in the context of the record, Mrs. Mullins's statement was not offered to prove that Darryl Durr murdered Angel, but only to prove her recollection of the events surrounding Angel's disappearance. As such we conclude that this was an entirely proper use of relevant testimony and reject appellant's sixth proposition of law.

In proposition number seven, the appellant claims he was prejudiced in both the guilt-determination and penalty phases of the trial by the cumulative and repetitive admission of gruesome photographs. The two pictures in issue depict the body as it was found three months after the murder occurred. The first is a closeup photograph of the victim at Brookside Park. The body is covered with a blanket and the victim's head is exposed as well as a portion of her sweater. The second photograph shows the victim's mostly unclothed decomposed body on a cart at the coroner's office. The victim's sweater is pushed up over her breasts and the blanket is down around her feet.

In State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus, we held:

“Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.”

As we stated in State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267, 274, certiorari denied (1988), 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 871, “the emphasis that a trial judge must apply in meeting an Evid.R. 403 objection has changed in capital cases. To be admissible in a capital case, the probative value of each photograph must outweigh the danger of prejudice to the defendant and, additionally, not be repetitive or cumulative in nature. Contrary to the Evid.R. 403 standard, where the probative value must be minimal and the prejudice great before the evidence may be excluded, pursuant to Maurer, supra, if the probative value does not, in a simple balancing of the relative values, outweigh the danger of prejudice to the defendant, the evidence must be excluded.”

In reviewing the two photographs in the instant case, we conclude that although they are shocking, their probative value is not outweighed by the danger of unfair prejudice. The photographs corroborate the deputy coroner's testimony regarding the body's advanced state of decomposition, the location of the body, and the identifying articles found on the body. Moreover, the photographs are neither cumulative nor repetitive. Each photograph illustrates testimony of state witnesses concerning the crime scene or elements of the crime charged. See State v. DePew (1988), 38 Ohio St.3d 275, 280-282, 528 N.E.2d 542, 550, certiorari denied (1989), 489 U.S. 1042, 109 S.Ct. 1099, 103 L.Ed.2d 241.

Since the probative value of the photographs outweighed the danger of unfair prejudice to the appellant, and since the photographs are neither cumulative nor repetitive, we conclude that their admission into evidence was not an abuse of discretion and reject appellant's seventh proposition of law.

In his eighth and ninth propositions of law, the appellant contends that since the state failed to adduce legally sufficient evidence to sustain his rape and aggravated robbery charges, his convictions on these counts are unconstitutional. We disagree.

First, appellant claims that the state failed to present proof beyond a reasonable doubt that the appellant at any time raped Angel Vincent. He argues that the circumstantial evidence of Angel's partially naked body is insufficient to sustain the charge of rape and the capital specification that the offense occurred in the commission of a rape.

It is true that the trial court convicted appellant on circumstantial evidence. “But direct evidence of a fact is not required. Circumstantial evidence * * * may also be more certain, satisfying and persuasive than direct evidence.” Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S. 325, 330, 81 S.Ct. 6, 11, 5 L.Ed.2d 20, citing Rogers v. Missouri Pacific RR. Co. (1957), 352 U.S. 500, 508, fn. 17, 77 S.Ct. 443, 449, fn. 17, 1 L.Ed.2d 493. Murder convictions and death sentences can rest solely on circumstantial evidence. State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v. Nicely (1988), 39 Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239.

However, “ * * * once the jury has reached its decision, an appellate court, in a case where circumstantial evidence is relied upon, will reverse only where the evidence is insufficient as a matter of law to enable the jury to exclude a reasonable hypothesis of innocence.” State v. Graven (1978), 54 Ohio St.2d 114, 119, 8 O.O.3d 113, 116, 374 N.E.2d 1370, 1374.

In this case, the prosecution presented highly probative circumstantial evidence. Except for a pair of tennis shoes, the victim's body was found nude from the waist down. In addition, Deborah Mullins testified that when she saw Angel tied up in the back of appellant's car, appellant informed Deborah that he was going to kill Angel because she would tell. Based upon these facts, we believe that there was sufficient probative evidence from which a rational trier of fact could have found the appellant guilty of rape beyond a reasonable doubt.

Appellant also alleges that his conviction for aggravated robbery and the corresponding capital murder specification pursuant to R.C. 2929.04(A)(7) is constitutionally insufficient. Specifically, appellant argues that the state failed to present evidence that the murder occurred while the appellant was attempting to commit, committing, or fleeing immediately after a theft offense. R.C. 2911.01.

At the time Angel Vincent disappeared she was wearing a jeans jacket, black acid-washed jeans, jewelry and glasses. After she was murdered, appellant possessed her jacket, jeans, jewelry and glasses. This circumstantial evidence and the inferences to be drawn from the removal of these items was sufficient for the jury to exclude any reasonable theory of innocence and to convict the appellant of aggravated robbery and the corresponding capital murder specification. As a result, we conclude that appellant stands convicted on constitutionally adequate grounds.

Accordingly, we reject appellant's eighth and ninth propositions of law.

As proposition of law number ten, the appellant alleges that both the trial court and the state improperly instructed the jury that its decision in the penalty phase was merely a recommendation. According to the appellant, these instructions led the jury “to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” Caldwell v. Mississippi (1985), 472 U.S. 320, 328-329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231.

We have addressed this issue previously and have held that:

“Caldwell * * * is inapplicable where the statements made to the jury during the mitigation phase of a capital trial were accurate statements of the law and were not made to induce reliance on the appellate process.” State v. Rogers (1986), 28 Ohio St.3d 427, 28 OBR 480, 504 N.E.2d 52, paragraph one of the syllabus, reversed and remanded on other grounds (1987), 32 Ohio St.3d 70, 512 N.E.2d 581. See, also, State v. Johnson (1989), 46 Ohio St.3d 96, 545 N.E.2d 636, certiorari denied (1990), 494 U.S. 1039, 110 S.Ct. 1504, 108 L.Ed.2d 639, and State v. Williams (1988), 38 Ohio St.3d 346, 528 N.E.2d 910, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238.

After reviewing the alleged improper statements in this case, we conclude that, although it is preferable that “no reference be made to the jury regarding the finality of their decision,” State v. Jenkins (1984), 15 Ohio St.3d 164, 202, 15 OBR 311, 344, 473 N.E.2d 264, 299; State v. Rogers, supra, 28 Ohio St.3d at 433, 28 OBR at 485, 504 N.E.2d at 57; State v. Williams, supra, 23 Ohio St.3d at 22, 23 OBR at 19, 490 N.E.2d at 912; State v. Buell (1986), 22 Ohio St.3d 124, 144, 22 OBR 203, 220, 489 N.E.2d 795, 813, certiorari denied (1986), 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165; the state's and court's comments in this case remained within the constitutional boundaries set by Caldwell v. Mississippi, supra; State v. Rogers, supra, at 434, 28 OBR at 486, 504 N.E.2d at 58; State v. Jenkins, supra, at 202, 15 OBR at 344, 473 N.E.2d at 298-299. Therefore, we reject appellant's tenth proposition of law.

Appellant next alleges that he was deprived of a fair and impartial trial due to the prosecutor's misconduct. He claims that the prosecutor commented on the unsworn nature of appellant's statement, spoke of societal interest in the outcome, referred to nonstatutory aggravating factors, and undercut defense counsel's credibility with the jury.

At the outset we observe that “the effect of counsel's misconduct ‘must be considered in the light of the whole case.’ ” State v. Maurer (1984), 15 Ohio St.3d 239, 266, 15 OBR 379, 402, 473 N.E.2d 768, 792-793, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728, quoting Mikula v. Balogh (1965), 9 Ohio App.2d 250, 258, 38 O.O.2d 311, 315, 224 N.E.2d 148, 155, and “the conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial.” Maurer, supra; accord State v. Papp (1978), 64 Ohio App.2d 203, 211, 18 O.O.3d 157, 162, 412 N.E.2d 401, 407; State v. DeNicola (1955), 163 Ohio St. 140, 148, 56 O.O. 185, 189, 126 N.E.2d 62, 66; Scott v. State (1923), 107 Ohio St. 475, 141 N.E. 19.

In reference to appellant's unsworn statement, the prosecutor made the following statements:

“[MR. MARINO:] This man has taken the stand and talked to you in an unsworn statement never dening [ sic] that he killed that girl, never apologizing that he killed that girl, never explaining to you why he did these things.

“This is his time. He could have said anything from that witness stand and a man, I think with a little more courage than an aunt [ sic], would have done more than send women to the stand on his behalf and then take the stand and try to create reasonable doubt in your mind to intimidate you.

“ * * *

“The defendant's lack of prior criminal convictions. Will he take the stand with a aworn [ sic] statement? Unfortunately, I don't know how that applies to this case.

“MR. MILANO [defense counsel]: Judge, we have an objection to that.

“THE COURT: Sustained.

“MR. MILANO: May we request that you instruct the jury to disregard this line, please?

“THE COURT: The jury is being instructed to disregard this line.

“MR. MARINO: Well, I'm looking to return to this line. The defense counsel did talk to you about it. He did mention it.

“If he didn't want me to mention it to you then he shouldn't have talked about it.

“MR. MILANO: Objection.

“THE COURT: Sustained.

“MR. MILANO: And ask the jury to disregard it. It's improper.

“THE COURT: The jury will disregard that and counsel will proceed.”

In the penalty phase of a capital trial, the prosecution may comment that the defendant's statement has not been made under oath or affirmation. However, in so commenting, the prosecution must carefully tailor its remarks so as only to remind the jury that the defendant's statement, in contrast to the testimony of all other witnesses, was not made under oath. State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, paragraph two of the syllabus, certiorari denied (1989), 489 U.S. 1042, 109 S.Ct. 1099, 103 L.Ed.2d 241.

In this case, the prosecutor's comments were adequately tailored to inform the jury that the appellant's statements were made absent oath or affirmation. As such they did not exceed the legal standard established by State v. DePew, supra.

However, the prosecutor's second statement does violate the DePew standard as it improperly comments on both the appellant's unsworn statement and the appellant's prior convictions. In the third paragraph of the syllabus of State v. DePew, this court held:

“The prosecutor, in the penalty stage of a capital trial, may rebut false or incomplete statements regarding the defendant's criminal record. This right is limited, however, to those instances where the defense offers a specific assertion, by a mitigation witness or by the defendant, that misrepresents the defendant's prior criminal history.”

The record in this case is devoid of any reference by appellant or any mitigation witness that the appellant was free of criminal convictions. Viewing these comments in light of the whole case, however, we do not find that the appellant was denied a fair trial, especially since the trial court promptly admonished the jury to disregard the state's improper remarks. See id. at 284, 528 N.E.2d at 553.

Appellant further contends that the prosecutor improperly argued that the jury was socially obligated to sentence appellant to death. After reviewing the statements in issue, we disagree.

Even if we were to interpret the prosecutor's remarks as appellant argues, we “should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431.

[18] Next, appellant argues that the prosecutor improperly referred to appellant's lack of remorse, his failure to deny or explain the offense and the impact of the victim's death upon her mother. Assuming the prosecutor committed misconduct, these statements were not objected to, and after reviewing the record, we believe that these remarks are too insignificant to rise to the level of plain error.

Appellant also alleges the prosecutor improperly mentioned each factor in R.C. 2929.04(B). “R.C. 2929.04(B) and (C) deal with mitigation and were designed to enable the defendant to raise issues in mitigation and to facilitate his presentation thereof. If the defendant chooses to refrain from raising some or all of the factors available to him, those factors not raised may not be referred to or commented upon by the trial court or the prosecution.” (Emphasis sic.) State v. DePew, supra, at 289, 528 N.E.2d at 557. Comments are appropriate “only with regard to those factors actually offered in mitigation by the defendant.” Id. Although the prosecutor's comments in this case did violate DePew, we find that appellant was not prejudiced thereby.

As his final argument concerning misconduct by the prosecutor, appellant contends that the prosecutor improperly communicated his personal belief in the appellant's guilt to the jury and made unfavorable remarks about defense counsel. According to the appellant, these comments concerned matters outside the record and therefore led the jury to convict him for reasons not related to the evidence adduced at trial.

“ * * * Since the penalty phase of a capital trial ‘is a moral inquiry into the culpability of the defendant * * *,’ California v. Brown (1987), 479 U.S. 538, 545 [107 S.Ct. 837, 841, 93 L.Ed.2d 934] (O'Connor, J., concurring), it is difficult for prosecutors to argue vigorously for the death penalty without making what might arguably be statements of personal opinion. In any case, we have held that a prosecutor may state his opinion if it is based on the evidence presented at trial. State v. Stephens (1970), 24 Ohio St.2d 76, 83, 53 O.O.2d 182, 186, 263 N.E.2d 773, 777.” State v. Tyler (1990), 50 Ohio St.3d 24, 41, 553 N.E.2d 576, 595.

In this case, the prosecutor stated his opinion after summarizing the evidence that described the circumstances surrounding Angel Vincent's death. Viewed in the proper perspective, the prosecutor's comments do not constitute error. Therefore, appellant's eleventh proposition of law is overruled.

As proposition of law twelve, appellant claims that his defense counsel failed in several respects to render effective assistance. Specifically, appellant claims he was prejudiced by his counsel's failure to object to improper questioning or instructions placed to the jury; counsel's elicitation of testimony of other bad acts by the appellant on cross-examination of Deborah Mullins; counsel's failure to preserve a tape-recorded telephone conversation for appellate review; and counsel's enumeration of all the mitigating circumstances to the jury as evidence of counsel's ineffectiveness.

Allegations of ineffective assistance of counsel are subject to a two-prong test. The defendant must show that, in light of all the circumstances, counsel's representation was professionally unreasonable. Strickland v. Washington (1984), 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674. In addition, the defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068.

After reviewing all the errors as alleged by the appellant, we find no merit in any of the claims of ineffectiveness, and conclude that the defendant was afforded a fair trial in which his counsel protected all of his constitutional rights.

Although appellant's trial counsel failed for the most part to object to the prosecution's and the court's use of the term “recommendation,” we have determined that based upon the facts in this case the use of the term “recommendation” was not error. Therefore, counsel could not have been ineffective in failing to object.

Moreover, after reviewing the cross-examination testimony of Deborah Mullins, we conclude that her comments regarding appellant's violent behavior were elicited to demonstrate her bias and prejudice. As such, counsel was not ineffective in eliciting such testimony.

Next, appellant argues that his attorneys were ineffective by failing to preserve an alleged tape-recorded conversation between Deborah Mullins and the appellant. The trial court determined that the tape was irrelevant to the issues raised at trial. We agree, based on the attorney's descriptions of the tape during argument on the motion to admit it, and hence find no basis for a claim of ineffective assistance.

Appellant also claims he was prejudiced after his counsel referred to a mitigating factor that had not been addressed by the prosecution. However, after reviewing the record, we conclude that in reciting the mitigating factors to the jury, defense counsel was attempting to emphasize and explain the weighing process that the jury must engage in during the sentencing phase of the trial. Such an argument does not render counsel ineffective.

In sum, we believe that appellant's counsel's argument was a reasonable exercise of professional judgment. Therefore, we find no merit in any of appellant's claims of ineffective assistance of counsel. Appellant's twelfth proposition of law is denied.

In his thirteenth proposition of law, appellant attacks the constitutionality of the requirement that the defendant prove the existence of mitigating factors by a preponderance of evidence. However, this case does not present this issue, as the jury was told that “the defendant has no burden of proof,” and that it should weigh the proven aggravating circumstances against the mitigating factors “offered” or “presented.” In any event, we have previously addressed this issue and have upheld its constitutionality in State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, certiorari denied (1988), 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1022.

As proposition of law number fourteen, the appellant makes several arguments that Ohio's death penalty statute is unconstitutional. This court has previously addressed all but one of these arguments and has found them to be not well-taken. See State v. Wickline (1990), 50 Ohio St.3d 114, 124, 552 N.E.2d 913, 923-924; State v. Buell, supra; State v. Maurer, supra; State v. Zuern, supra; State v. Jenkins, supra.

Appellant argues that a reviewing court must make a separate finding that a lower court's decision was not influenced by passion, prejudice or any other arbitrary factor. Because such inquiry is inherent in every death penalty review, we decline to accept appellant's argument. Since appellant has failed to present a compelling reason why we should now find the statute unconstitutional, we reject appellant's fourteenth proposition of law.

Finally, we must independently review the death sentence for appropriateness and proportionality. Appellant murdered Angel Vincent after first kidnapping, robbing and raping her. We find that the aggravating circumstances were proved beyond a reasonable doubt.

As mitigation, appellant presented two witnesses during the penalty phase and addressed the jury in an unsworn statement. Neither witness was cross-examined and the prosecution presented no witnesses in the mitigation hearing.

One of the defense witnesses was the appellant's mother, Aziel Johnson. Ms. Johnson testified that appellant never knew his father, had graduated from high school, and was the father of two children. The second witness, Janice Durr, testified that she was the appellant's common-law wife, the mother of his son, and that she was pregnant.

Weighing the various mitigating factors against the aggravating circumstances, we conclude that the mitigating factors are outweighed by the aggravating circumstances beyond a reasonable doubt. In comparing the sentence of death in this case to those cases where we have previously imposed the death sentence, we find the sentence here is neither excessive nor disproportionate to sentences for other convictions for murder with rape, kidnapping or robbery specifications upheld by this court. See, e.g., State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895; State v. Benner (1988), 40 Ohio St.3d 301, 533 N.E.2d 701, certiorari denied (1990), 494 U.S. 1090, 110 S.Ct. 1834, 108 L.Ed.2d 962.

Therefore, in accordance with R.C. 2929.05(A), we affirm the conviction and sentence of death in this case.

Accordingly, the judgment of the court of appeals is hereby affirmed.

SWEENEY, DOUGLAS and RESNICK, JJ., concur. MOYER, C.J., and HERBERT R. BROWN, J., concur separately. WRIGHT, J., dissents.

Durr v. Mitchell, 487 F.3d 423 (6th Cir. 2007). (Habeas)

OPINION SUHRHEINRICH, Circuit Judge.

Petitioner-Appellant Darryl Durr, an Ohio death row inmate, appeals from the order of the United States District Court for the Northern District of Ohio, Eastern Division, denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On appeal, Durr challenges the district court's: (1) procedural default rulings; (2) denial of his Sixth Amendment claim that the trial court failed to appoint an independent psychologist; (3) denial of his ineffective assistance of counsel claim; and (4) denial of the sufficiency of evidence claim. For the reasons that follow, we AFFIRM the opinion of the district court denying Durr's petition for a writ of habeas corpus.

I. Background

A. Facts

On direct appeal, the Ohio Supreme Court made the following findings of fact: On January 31, 1988, at approximately 10:50 p.m., Norma Jean O'Nan and her husband returned to their home in Elyria and discovered the front door unlocked, the lights and television on, and their sixteen-year-old daughter, Angel Vincent, missing. Only twenty minutes earlier, Mrs. O'Nan had spoken with her daughter by telephone to learn that Angel's girlfriend, Deborah Mullins, was at her home and that Deborah's boyfriend, appellant Darryl Durr, was expected to arrive later in the evening. That was the last chance Mrs. O'Nan would have to speak to her daughter alive.

On April 30, 1988, three boys noticed a foul odor coming from two orange traffic barrels while playing in Brookside Park. The barrels and been placed open end to open end, and were underneath a railroad tie. Upon separating the barrels, the boys discovered a severely decomposed female body that had been wrapped in a dirty old blanket. A portion of a leg was visible through a large hole in the blanket.

In September, 1988, after appellant was arrested for two unrelated rapes, Deborah Mullins revealed her knowledge of Angel's disappearance to the Cleveland Police Department. As the result of her information, an ankle X-ray obtained from Elyria Memorial Hospital, and dental records, the body discovered in Brookside Park was determined to be that of Angel Vincent.

As the appellant was driving, Deborah heard noises from the back seat and after turning around discovered Angel bound on the rear floorboard. According to Deborah's testimony, Angel was wearing black acid-washed denim jeans, a jean jacket, and tennis shoes when she was last seen in the back of appellant's car. When Deborah asked the appellant why Angel was bound in his car, the appellant responded that he intended to “waste” her because “she would tell.” He never revealed just what Angel was going to tell.

Appellant drove Deborah and their baby to his wife's, Janice Durr's, Cleveland apartment. After dropping Deborah and the baby off, the appellant left with a duffle bag containing two shovels.

After arriving at Deborah's home in Elyria, Deborah's mother informed her that Mrs. O'Nan had come over and inquired about Deborah's knowledge of Angels's disappearance. Deborah testified that appellant threatened her and their baby's life and instructed her to tell Mrs. O'Nan that Angel had been talking about running away. Deborah also testified that the appellant took her and their baby to Edgewater Park where the appellant threw Angel's glasses over a cliff into the lake. A month or so later, while driving past the Cleveland Zoo, appellant pointed to a location and said, “Over there.” When Deborah questioned his statement, the appellant replied, “You know what I am talking about.” State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674, 676-78 (1991).

Following a jury trial, Durr was convicted of aggravated murder, in violation of Ohio Rev.Code § 2903.01; kidnaping, in violation of § 2905.01; aggravated robbery, in violation of § 2911.01; and rape, in violation of § 2907.02. The trial court followed the jury's recommendation and sentenced Durr to death. On direct appeal, the Ohio Court of Appeals affirmed Durr's conviction and sentence, see State v. Durr, No. CR-231670, 1989 WL 147626 (Ohio Ct.App. Dec. 7, 1989) (unpublished opinion), as did the Ohio Supreme Court, see Durr, 58 Ohio St.3d 86, 568 N.E.2d 674, cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991). Durr next sought post-conviction relief in state court, raising fifty claims. After the trial court denied his request, State v. Durr, No. CR-231670 (Ohio Ct. Com. Pl. July 6, 1993) (unpublished opinion), Durr appealed to the Ohio Court of Appeals, which affirmed the trial court, State v. Durr, No. 65958, 1994 WL 463813 (Ohio Ct. App. Aug. 25, 1994) (unpublished opinion). The Ohio Supreme Court denied Durr's request for further appeal. See State v. Durr, 71 Ohio St.3d 1455, 644 N.E.2d 1028 (1995). The Ohio Court of Appeals also denied his motion for delayed reconsideration, State v. Durr, No. 57140 (Ohio Ct. App. July 6, 1994) (unpublished opinion), and the Ohio Supreme Court subsequently affirmed that decision, State v. Durr, 71 Ohio St.3d 395, 643 N.E.2d 1147 (1994). Durr also filed two additional motions for reconsideration in the Ohio Supreme Court, both of which were denied. See State v. Durr, 72 Ohio St.3d 1404, 647 N.E.2d 493 (1995).

In June 1996, Durr filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio, Eastern Division, asserting fifty-one claims for relief. The district court denied habeas relief as to all fifty-one claims, and further found no basis upon which to issue a certificate of appealability. This Court granted a certificate of appealability as to three issues: First, whether the district court correctly held that habeas claims forty-two (trial court's failure to appoint an independent psychologist), and fifty (ineffective assistance of counsel), were procedurally defaulted. Second, if not procedurally defaulted, whether these claims were properly denied on the merits. Third, whether the evidence of rape was insufficient to support Durr's rape conviction.

II. Standards of Review

Durr filed his habeas petition after April 24, 1996, and it is therefore governed by the requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996).

Under the AEDPA, a federal court may not grant a writ of habeas corpus unless it concludes that the state court's adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Deferential review under AEDPA applies only where the state court has adjudicated a claim on the merits. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003) (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001)). When the state court has not assessed the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply. Id. In that case, this Court reviews questions of law and mixed questions of law and fact de novo. Id.

In an appeal from a denial of habeas relief under the AEDPA, this Court reviews a district court's legal conclusions de novo and its factual findings for clear error. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir.2003).

III. Analysis

A. Trial Court's Failure to Appoint an Independent Psychologist

Durr contends in habeas claim forty-two that the trial court's failure to appoint an independent psychologist to assist trial counsel with preparation for the mitigation phase denied him a fundamentally fair trial. Initially we must determine whether the district court erred in ruling that habeas claim forty-two was procedurally defaulted. The district court reasoned that claim forty-two was procedurally defaulted because Durr knew the claim existed during direct appeal, but failed to raise it at that time.

This Court has held that Ohio's use of the doctrine of res judicata to preclude a merits determination of a claim raised in post-conviction proceedings that had been, or should have been, raised on direct appeal is an adequate and independent state ground barring federal habeas review. Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir.2000) (“Ohio has a rule that claims must be raised on direct appeal if possible; otherwise, res judicata bars their litigation in subsequent state proceedings.”). A claim is procedurally defaulted if there is a state procedural rule that the petitioner failed to follow, that the state courts actually enforced, and that constitutes an adequate and independent state ground to foreclose review of the federal constitutional claim. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). However, the petitioner may excuse the default if he can show cause for failure to follow the rule and prejudice resulting therefrom. Id.; Poindexter v. Mitchell, 454 F.3d 564, 583 (6th Cir.2006).

As the Warden concedes, the district court incorrectly determined that habeas claim forty-two was procedurally defaulted, because the state courts adjudicated this claim on the merits on post-conviction review.FN1 Although Durr could have presented the claim on direct appeal, because the state courts did not “actually enforce” the procedural rule requiring presentation of claims on direct appeal, the procedural default doctrine is not applicable. See Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (stating that “[t]he mere existence of a basis for a state procedural bar does not deprive ... [federal courts] of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case”); Bowling v. Parker, 344 F.3d 487, 499 (6th Cir.2003) (stating that “there must be unambiguous state-court reliance on a procedural default for it to block” this Court's review). Therefore, we review the merits of habeas claim forty-two.

FN1. In denying this claim on post-conviction, the Ohio Court of Common Pleas, County of Cuyahoga held that “[s]ince no expert psychologist was requested, the Court had no duty to appoint one and thereby interfere with defense trial strategy, and accordingly, this claim is denied.” State v. Durr, No. CR-231670, at *10 (Ohio Ct. Com. Pl. July 6, 1993) (unpublished opinion).

On Durr's motion for delayed reconsideration, the Ohio Court of Appeals held that no duty existed on the part of the trial court to unilaterally appoint an expert on behalf of a defendant who is charged with a capital offense. Durr, No. 57140, at * 13. The district court also found no merit in this claim, explaining that because trial counsel did not request the appointment of a psychologist, “the trial court had no basis to determine whether such an expert was ‘reasonably necessary.’ ” FN2 Durr was represented at his criminal trial by Jay Milano, Thomas M. Shaughnessy, and Michael Pincus. Future references to “trial counsel” will therefore reference these attorneys.

Durr is not entitled to relief on this claim. As Durr concedes, trial counsel did not request the appointment of a psychologist from the trial court. Trial counsel Jerry Milano said, “the most the Court would pay for any expert is $500.00, [so] we did not attempt to get any other experts, such as a pathologist, criminalist, psychologist, or mitigation specialist. In my experience, you cannot even get a qualified expert to talk to you for $500.00.”

Durr nonetheless argues that the appointment of a psychologist would have provided the jury with mitigation evidence. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that an indigent defendant is entitled to expert assistance in two scenarios: (1) where the defendant's sanity at the time of the offense is likely to be a significant factor at trial; or (2) where the prosecution submits evidence of a capital defendant's future dangerousness through the state's own psychiatrists. Ake, 470 U.S. at 82-84, 105 S.Ct. 1087 (“The risk of error from denial of [expert] assistance, as well as its probable value, is most predictably at its height when the defendant's mental condition is seriously in question.... [This] discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness.”); see also Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir.2000) (interpreting Ake to recognize that an indigent defendant is entitled to psychiatric assistance during sentencing if sanity was a significant issue at trial or state first presents evidence of future dangerousness).

Neither Ake scenario applies here. Durr did not allege that there was a significant issue as to his sanity at the time of trial nor did the prosecutor present evidence concerning his future dangerousness. In fact, during mitigation, when Durr's counsel referred to mental disease as a possible mitigation factor, he expressly stated that “there's been no evidence of that, so that doesn't apply.” Similarly, at no point during the prosecution's arguments at mitigation was evidence presented establishing Durr's future dangerousness. For this reason, the cases Durr cites are inapposite. Cf. Glenn v. Tate, 71 F.3d 1204, 1211 (6th Cir.1995) (pre-AEDPA case vacating defendant's death sentence where the jury did not hear evidence during mitigation that the crime was the product of defendant's mental retardation or organic brain disease); Powell v. Collins, 332 F.3d 376, 392 (6th Cir.2003) (pre-AEDPA case holding that the defendant was entitled to an independent psychiatrist after presenting sufficient facts that his diminished mental capacity would be his main defense at trial).

Thus, the state courts' decision cannot be contrary to, or an unreasonable application of Ake. Furthermore, to extend Ake to the facts of this case would force every trial court to appoint experts for indigent defendants even if not requested, or risk a subsequent challenge to the fairness of the trial. Such a result is not only an unnecessary expansion of Ake, but actually undermines the Court's subsequent discussion of Ake in Caldwell, 472 U.S. at 323 n. 1, 105 S.Ct. 2633 (“Given that Petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial, we find no deprivation of due process in the trial judge's decision.”); see also Carter v. Mitchell, 443 F.3d 517, 527 (6th Cir.2006) (holding that to establish ineffective assistance of counsel at mitigation for failure to obtain a mental health expert, there must be some evidence that the petitioner's mental health was at issue), cert. denied, --- U.S. ----, 127 S.Ct. 955, 166 L.Ed.2d 730 (2007).

In short, the state court's decision was not contrary to nor an unreasonable application of clearly established federal law. The district court did not err in denying the merits of this claim.

B. Ineffective Assistance of Trial Counsel at Mitigation Phase

In habeas claim fifty, Durr contends that trial counsel were constitutionally ineffective for failing to: (1) interview members of his family; (2) obtain experts for mitigation; (3) object to portions of the State's closing argument; and (4) object to allegedly improper jury instructions. The district court held that habeas claim fifty was procedurally defaulted because Durr could have raised, but failed to raise claim fifty on direct appeal.

There are two variants of res judicata under Ohio law for collateral attacks on convictions. Lundgren v. Mitchell, 440 F.3d 754, 765 n. 2 (6th Cir.2006). The first variant is when a petitioner could have, but failed, to bring a claim on direct review. Id. The second variant occurs in state court when a claim was actually brought and litigated on direct appeal. Id. This second variant of res judicata cannot form the basis of federal procedural default, however, because the petitioner did not fail to comply with a state procedural rule-namely that claims must be raised on direct appeal if possible. See id.

As the Warden again concedes, habeas claim fifty is not procedurally defaulted because the state courts either incorrectly ruled that certain claims were barred by res judicata, or did not correctly enforce the procedural bar. Claim fifty is comprised of fifteen sub-claims. Although sub-claims 1, 2, 3(d)-(h), and 4(a) were not raised until post-conviction and delayed reconsideration, and could have been presented on direct appeal, the Ohio post-conviction courts thought they had been raised and actually litigated on direct appeal and ruled that these eight sub-claims were barred by res judicata. This was incorrect because these sub-claims were being raised for the first time in post-conviction and delayed reconsideration, and had never been ruled on during direct appeal. The Ohio post-conviction courts' res judicata ruling was factually incorrect. Thus, it cannot be said that Durr failed to comply with a state procedural rule that was an “adequate and independent” state ground under Maupin. See Maupin, 785 F.2d at 138. We may therefore review these sub-claims on the merits. See Caldwell, 472 U.S. at 327, 105 S.Ct. 2633; Baze, 371 F.3d at 320.

The Ohio state courts correctly held on collateral review that claims: 3(a)-(c), (i), and 4(b)(d) were barred by res judicata because they were raised and decided on the merits on direct appeal. The error arose in the district court, which incorrectly held that these claims were procedurally defaulted because the Ohio state court held they were barred by res judicata. However, because the state court relied on the second type of res judicata, the district court erred because this type of res judicata is not available as a basis for procedural default in federal court. See Lundgren, 440 F.3d at 765 n. 2. We also review these sub-claims on the merits.

To prove ineffective assistance of counsel, a petitioner must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel renders ineffective assistance when his performance “[falls] below an objective standard of reasonableness,” but there is a “strong presumption” that counsel's performance was professionally reasonable. Id. at 688-89, 104 S.Ct. 2052. Prejudice requires a showing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Although this is a high burden for a petitioner to satisfy, it is even higher for a petitioner proceeding under the AEDPA. That is, a petitioner must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance. He must show that the state court of appeals applied Strickland to the facts of his case in an “objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

1. Failure to Investigate Mitigation Evidence

Durr argues that trial counsel failed to interview certain family members prior to mitigation and neglected to obtain his social history. The district court found that Durr failed to show prejudice because “[s]imply listing the claimed omissions of trial counsel is not enough.” The Ohio courts never addressed this portion of claim fifty on the merits, and never held it to be procedurally defaulted. Therefore, this Court applies the less deferential standard of review set forth in Maples. Maples, 340 F.3d at 436.

During mitigation, Durr's trial counsel presented two witnesses: Azriel Johnson, Durr's mother, and Janice Durr, Durr's common law wife. Azriel Johnson gave the jury a historical perspective of Durr's early childhood years, academics, work experience, relationships, and marital history. Durr's mother testified about his seemingly normal childhood. She described his years at Catholic school, where he earned average grades and “got along very well,” showing no behavior problems. She also described her relationship with Durr as “very good,” noting that if Durr had a problem, he could always come and talk to her about it, no matter how late at night. Azriel further recounted Durr working two jobs, and how he always kept her grass cut and made sure to shovel the snow in her driveway. Azriel testified that although Durr never knew his real father, he maintained a “very good relationship” with his step-father during his early years. She concluded by stating she loved and believed in Darryl.

Janice Durr testified about her marriage with Durr, how she initiated the sexual part of their relationship, the various jobs that Durr maintained during the relationship, and described Durr as “really sweet” and a “real gentlem [a]n.” She recounted the birth of their son, how Durr stayed with her and provided whatever she might need, and even recalled how Debbie Mullins became a part of the Durr family.

Durr alleges that his trial counsel were ineffective for failing to interview and present additional testimony from Tammy Jackson, Charles Johnson, Michael Durr, and Denise Durr. In her affidavit, Tammy Jackson, a former girlfriend, stated that she dated Durr for two years starting in 1979, and that he “was never disrespectful to [her] in any way.” Charles Johnson, Durr's stepfather, described in his affidavit Durr's early childhood years, stating that Durr called him “Dad,” followed him everywhere, and as he was growing up “always talked about becoming a manager.” Like Azriel, Charles also stated that he trusted and believed in Durr, that Azriel made sure that Durr got good grades in school, and that Durr was a good kid who did things for everybody. The jury heard similar comments during his mother's testimony.

In his affidavit, Michael, Durr's older brother, discussed how all the Durr children adhered to strict rules about house chores, telephone use, and playing outside. Michael also recalled how Durr would run away from home as a child, but never for more than twelve hours. Denise, Durr's oldest sister, stated in her affidavit that her father, Willie Durr, used to beat Azriel prior to their separation, and that Azriel refused to let the children contact Willie or his family. Denise described that Durr never witnessed any abuse because Willie left the home before Durr's birth, but that Azriel became “bitter” for years afterwards. Denise also discussed Durr's early childhood years, providing a similar background as Michael's affidavit and Azriel's testimony about growing up in the Durr house. She also added that the family's needs were met by their mother's income and that their mother emphasized the importance of a good education.

The foregoing testimony is cumulative of that given by Durr's mother and his common law wife that Durr grew up in a relatively stable home where rules were enforced, and basic needs were met. This Court has held the failure to present additional mitigating evidence that is “merely cumulative” of that already presented does not establish prejudice. Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.2005); see also Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.2005) (“[I]n order to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.”). Cf. Carter, 443 F.3d at 531 (holding that trial counsel was not ineffective where the additional testimony of the petitioner's family members was cumulative, and affidavits themselves described a relatively stable, although imperfect, family environment). The omitted testimony does not reflect an upbringing that would give rise to an ineffective assistance of counsel claim.

Moreover, had Tammy testified, the prosecution could have introduced rebuttal evidence concerning Durr's treatment of other women, including his rape convictions. See State v. Raglin, 83 Ohio St.3d 253, 699 N.E.2d 482, 490 (1998) (holding that the appellant was not unfairly prejudiced by state's presentation of rebuttal witness, because the “prosecution was entitled to introduce relevant evidence rebutting the existence of any statutorily defined or other mitigating factor first asserted by the defense”). This included the fact that only a few weeks before the start of his capital trial, Durr pled guilty to rape charges involving two separate incidents involving teenage girls. One of these rapes took place just one quarter of a mile from where the body of Angel Vincent was found.

Trial counsel conducted a reasonable investigation by interviewing and presenting the two people who appear to know more about Durr than anyone else: Azriel, his mother, and Janice, his ex-wife, and presenting Durr as basically a good person. Taken together, the additional affidavits present nothing new that “would have stood out to the jury in such a way as to change the calculation the jury previously made when weighing the aggravating and mitigating circumstances of the murder.” Hill, 400 F.3d at 319. Durr fails to show error under either prong of Strickland. The district court correctly rejected this claim. This claim is denied.

2. Failure to Obtain Necessary Experts

Durr claims that trial counsel rendered ineffective assistance by failing to obtain all necessary competent experts; specifically a social worker, an independent psychologist, and an expert on cross-cultural issues. The district court rejected the merits of this claim, explaining that trial counsel knew enough about Durr's background to make a tactical decision that the risk of having the experts testify outweighed the potential benefit. This claim was never addressed by the Ohio courts on the merits, so we apply the less deferential standard of review set forth in Maples.

Durr contends that the failure to retain a social worker resulted in the absence of a comprehensive and thorough psychosocial history, making it impossible for counsel to understand, develop, and present evidence in mitigation to the jury, or to make reasonable and informed decisions about Durr. In support, Durr submitted the affidavit of Jane Core, the director of the mitigation section of the Ohio Public Defender Commission. Core's affidavit, however, contains no analysis of Durr and fails to mention any facts of his case. Rather, Core only describes the role of a mitigation specialist and how defense counsel use these experts in the typical death penalty case. The affidavit does not even discuss the potential effect such an expert would have had on the jury's decision to return a death sentence or not. Durr fails to show how the absence of this expert resulted in prejudice under Strickland.

Durr also submitted the affidavit of Dr. James Eisenberg, a psychologist. Dr. Eisenberg claimed that an independent psychologist's testimony during mitigation FN3 would have provided the jury with a mitigating factor under Ohio Rev.Code § 2929.04(B)(7) due to “Durr's lack of appropriate role models, [the] absence of a biological father, [and having] an emotionally isolated family....” Dr. Eisenberg claimed that Durr grew up in a home with inconsistent discipline and little supervision. He also claimed that the jury had no understanding of Durr's underlying psychological issues.

FN3. “Any other factors that are relevant to the issue of whether the offender should be sentenced to death.” Ohio Rev.Code § 2929.04(B)(7).

Dr. Eisenberg's conclusions are contradicted by the affidavits of Durr's family members. Contrary to Dr. Eisenberg's assertion that the Durr children received inadequate discipline, Denise Durr stated in her affidavit that “house rules were strictly enforced. Punishment was meted out by spanking, or pinching when [Azriel] was too pregnant to spank.... Overnight stays were prohibited, even with relatives.” Further, although Dr. Eisenberg claimed that the Durr children had little supervision, Denise stated that Azriel “spent her days off taking us [children] to ice shows and the movies.”

Michael's affidavit undermines Dr. Eisenberg's assertions that the Durr family was “emotionally isolated,” stating that “[m]y mother worked a floating schedule, but always seemed to have time for her children.” Also, Charles Johnson stated in his affidavit that Durr “followed me everywhere” and “called me Dad,” contrary to Dr. Eisenberg's conclusion that Durr lacked an appropriate father figure. Durr himself admitted to having a father figure, stating that “[t]he ‘father figure’ in my life was Mr. Paul,” referring to the biological father of Durr's younger brother, Milton.

More importantly, Dr. Eisenberg did not find Durr to have any psychological problems. In fact, Dr. Eisenberg stated in his report that “[t]he clinical interview and the psychological testing do not indicate the presence of an underlying mental disorder.” Counsel then cannot be faulted for failing to present evidence that apparently does not exist. See Lorraine v. Coyle, 291 F.3d 416, 439 (6th Cir.2002) (holding that counsel's failure to discover evidence of mental disease after pursuing false leads was not ineffective under Strickland). Thus, Durr cannot demonstrate that counsel was deficient for failing to present Dr. Eisenberg's testimony.

Finally, Durr argues that counsel should have retained an expert on cross-cultural issues, submitting the affidavit of Dr. Judith Skillings in support. Durr claims that Dr. Skillings would have given the jurors a better explanation into the cross-cultural issues Durr faced-such as explaining to the jury some of the reasons that Durr was drawn to white women. However, Dr. Skillings' affidavit merely speculates on the impact racism had on the jury:

In my opinion, the jury should have received an explanation of who Darryl Durr was, and been forced to turn the color of the case around. If Darryl had been white, and Janice and Debby African-American, it is doubtful that Debby's uncorroborated accusations would have been given much weight.

Phrases such as “in my opinion” or “it is doubtful” do not establish prejudice under Strickland. See Strickland, 466 U.S. at 693, 104 S.Ct. 2052 (“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”). Again, Durr fails to show prejudice.

In sum, we agree with the district court that the background information provided by the experts' affidavits would have “open[ed] an indeniable Pandora's box allowing the jury to hear about [Durr's] prior record and anything and everything about [his] life.” Given the lack of mitigating evidence available in this case, and the likelihood that the testimony of Durr's experts would have done more harm than good, the decision not to retain experts was a sound one. Not only is there no prejudice, but trial counsels' decision appears to be very prudent given the circumstances. This claim is denied.

3. Failure to Object to Portions of the State's Closing Argument

Durr contends that trial counsel should have objected to the following instances of prosecutorial misconduct during the prosecutor's closing argument for the penalty phase: (a) listing of all statutory mitigating factors on a blackboard; (b) commenting about Durr's statement being unsworn; (c) discussing all of the potential mitigating factors; (d) comparing civil and criminal law; (e) referring to Durr's prior convictions; (f) stating that society demanded the death penalty for Durr; (g) asserting his personal knowledge and belief that Durr deserved the death penalty; (h) stating that there were younger people on death row; and (i) arguing non-statutory aggravating circumstances, including the facts of the crime, the lack of remorse, and the photographs admitted into evidence. The district court found no merit to this sub-claim. The Ohio courts addressed some, but not all, of these sub-claims on the merits. We address each sub-claim in turn, except for sub-claim (b), which we will address last.

The relevant question in analyzing a claim for prosecutorial misconduct on habeas review is “whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). To satisfy this standard, the conduct must be both improper and flagrant. Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006) (citing Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005)), cert. denied, --- U.S. ----, 127 S.Ct. 1376, 167 L.Ed.2d 165 (2007). Conduct is improper if made “to incite the passions and prejudices of the jurors....” United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir.1991). If conduct is found to be improper, four factors are then considered to determine flagrancy: “(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.” Bates, 402 F.3d. at 641.

In a trial of any size, numerous potentially objectionable events occur. “[T]he Constitution does not insure that defense counsel will recognize and raise every conceivable constitutional claim.” Lundgren, 440 F.3d at 774 (quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)).

[A]ny single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial to a client that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice. See Hodge v. Hurley, 426 F.3d 368, 376 (6th Cir.2005) (“[C]ounsel's failure to object to any of the numerous improper statements in the prosecution's closing argument is well outside [professional norms].”). Id. at 774-75. With these standards in mind, we now turn to the individual claims.

As an initial matter, we note that an examination of the trial court transcript shows that Durr's counsel successfully objected to sub-claims (b), (e), (g), and (h). Thus, Durr cannot show deficient performance on trial counsels' part. However, even if counsel had not objected, Durr has not shown how this failure denied him due process.

Taking sub-claims (a) and (c) together, Durr charges that trial counsel should have objected to the prosecution's argument discussing all statutory mitigating factors. In ruling on these sub-claims, the Ohio Supreme Court held that Durr was not prejudiced by prosecutorial misconduct. Durr, 568 N.E.2d at 684. The district court also found no merit in this claim. Because these claims were addressed on the merits by the Ohio courts, we review them under the AEDPA standard.

The prosecutor's discussion of all statutory mitigating factors was improper. Hicks v. Collins, 384 F.3d 204, 223 (6th Cir.2004). Nevertheless, Durr is not entitled to relief because “the prosecution simply laid out all the mitigating factors and argued why they did not apply.” Hicks, 384 F.3d at 224 (quoting Turner v. Calderon, 281 F.3d 851, 870 (9th Cir.2002)). “The prosecution did not ‘mischaracterize [ ] a potentially mitigating factor as an aggravating factor....’ ” Id. (quoting Turner, 281 F.3d at 870). The prosecution in Durr's case made a similar argument. Durr does not allege that the State mischaracterized a potentially mitigating factor as an aggravating factor. As in Hicks, we do not find the decision of the Ohio Supreme Court to be an unreasonable application of Strickland. Finding no merit, claims (a) and (c) are denied.

Durr's sub-claim (d) alleges that trial counsel should have objected to what he characterizes as “the prosecution's allegedly improper comparison between civil and criminal law.” The Ohio state courts did not decide this sub-claim on the merits. Therefore, we review this claim under the Maples standard.

In closing, the prosecutor stated: “[n]ow, the first matter you can consider, whether the victim, whether the victim infused or facilitated the offense. That may be like a bar room brawl or fight where the victim may have picked a fight with the defendant, the defendant gains the upper hand and slays her.” In the first place, it is far from clear how this testimony can be characterized as a comparison of civil with criminal law, and no other comments by the prosecutor fit that description either. In any event, when read in context, it is clear that the prosecutor was simply attempting to explain one of the statutory mitigating factors; the remark was isolated and was not likely to confuse the jury or create prejudice for Durr. In other words, the prosecutor's statement did not so infect the trial with unfairness so as to deny Durr due process. See Darden, 477 U.S. at 181, 106 S.Ct. 2464; Donnelly, 416 U.S. at 637, 94 S.Ct. 1868; Bowling, 344 F.3d at 512-13. Again, Durr fails to show resulting prejudice for counsel's failure to object. Considering the abundance of evidence against Durr, this remark did not affect the outcome of the proceedings. The district court found this claim meritless. We agree. Sub-claim (d) fails.

Sub-claim (e) alleges that Durr's trial counsel were ineffective for failing to object to the State's improper reference to Durr's prior convictions. The trial record shows that Durr's counsel did in fact object to this statement. Therefore, this sub-claim is denied.

In sub-claim (f) Durr asserts that trial counsel should have objected to the prosecutor's statement that society demanded the death penalty in this case. The prosecutor rhetorically inquired as to how the jury should determine the existence of mitigating factors: “What tells you as a human being, then a juror? Who speaks on behalf of society? Who will tell society what society's additude [sic] is toward this crime? You decide what mitigating factors have been shown you by defense counsel in this case.” The prosecutor later added: “We are down to something more than just the law right now. We are down to what society views as an appropriate punishment for this type of conduct and this type of act. It's a heavy issue.”

On direct appeal, the Ohio Supreme Court held that the prosecutor did not improperly argue that the jury was socially obligated to sentence Durr to death. In rejecting this claim, the court stated that: “[e]ven if we were to interpret the prosecutor's remarks as [Durr] argues, we ‘should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’ ” Durr, 568 N.E.2d at 684 (quoting Donnelly, 416 U.S. at 647, 94 S.Ct. 1868). Because the state court reviewed this claim on the merits, we review this claim under the AEDPA standard.

This Court has held that “ ‘unless calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as the community conscience are not per se impermissible.’ ” Byrd v. Collins, 209 F.3d 486, 538-39 (6th Cir.2000) (holding on habeas review that prosecutor's argument to jurors that they should impose the death sentence to fulfill their societal duty was not clearly improper, and did not result in a fundamentally unfair trial) (quoting Solivan, 937 F.2d at 1151). Cf. Solivan, 937 F.2d at 1148 (holding that egregious prosecutorial misconduct constituted error when in closing the prosecutor asked the jury to “tell [defendant] and all of the other drug dealers like her ... that we don't want that stuff in Northern Kentucky....”).

The prosecutor in Durr's case urged the jury to weigh all the aggravating circumstances against the mitigating factors in making its sentencing determination. Like in Byrd, it is not clear that the comment in Durr's case was even improper “and it certainly does not render Petitioner's entire trial fundamentally unfair” for purposes of the “more stringent standards applicable on habeas review....” Byrd, 209 F.3d at 539. The Ohio court's decision was not an unreasonable application of federal law. We agree with the district court's determination that this claim is meritless. Sub-claim (f) is denied.

In sub-claim (g), Durr alleges that trial counsel failed to object to the prosecutor's allegedly improper statement about his personal knowledge and belief that Durr deserved the death penalty. The prosecutor stated:

I have tried cases for about 17 years. I have also felt that the most important phase of any trial is the guilt or innocence phase and that's why I and the people in my division argue in favor of conviction when we are certain of it. That's why I argue to you so strongly because I believe in the facts and I believe that you would see them. This stage is considerably different though. You will, when I explain it to you, readily recognize that the words of counsel are spoken from a standpoint of irresponsibility.

Durr's trial counsel objected, but was overruled by the court. On direct appeal, the Ohio Supreme Court held that no error occurred because “[i]n this case, the prosecutor stated his opinion after summarizing the evidence that described the circumstances surrounding Angel Vincent's death. Viewed in the proper perspective, the prosecutor's comments do not constitute error.” Durr, 568 N.E.2d at 684. The district court found no merit in this claim. Because the state courts ruled on this claim on the merits, we review sub-claim (g) under the AEDPA standard.

In Bates v. Bell, 402 F.3d 635, 644 (6th Cir.2005), this Court recognized that “prosecutors are prohibited from expressing their personal opinion as to the existence of aggravating or mitigating circumstances and the appropriateness of the death penalty.” In Bates, the prosecutors repeatedly expressed their personal opinion as to both the “credibility of the witnesses and the ultimate issue in the hearing.” Bates, 402 F.3d at 644. Again and again, the prosecutors denigrated the mitigating evidence presented by Bates's two witnesses. Id. at 646. “The prosecutors repeatedly referred to the near-certain murders that would occur if Bates were permitted to live,” “suggest[ed] that the jury would be an accomplice to future murders if they failed to sentence Bates to death,” and “compared him to a rabid dog.” Id. at 643. This Court held that “[t]he prosecutor's unnecessary and intolerable conduct injected such vitriol into the proceedings, as to question the fairness of the entire sentencing hearing.” Id. at 649. This Court went on to say that “if a habeas court is in “grave doubt” as to the harmlessness of an error, the habeas petitioner must prevail.” Id. at 649.

While the prosecutor's comments in Durr's case were improper, they were not so flagrant as those in Bates. And the prosecutor later offered words tending to offset his comments concerning his personal beliefs about the case, when he stated: “You should make your decision uninfluenced by any attorney who has talked to you ... I feel society's interest is best served if you look at a case objectively and reach a decision without somebody telling you what you have to do, urge you to do....” The prosecutor's subsequent statement was consistent with state law and therefore did not prejudice Durr. In any event, Durr's counsel did object, and the trial court instructed the jury that closing arguments by counsel were not evidence. Additionally, while the prosecutor's statement appears deliberate, it was isolated. Thus, on balance, the prosecutor's comments do not give this Court the same “grave doubt” about their harmlessness as we felt in Bates. The Ohio Supreme Court's decision was not an unreasonable application of federal law, and the district court did not err in denying habeas relief as to this claim.

In sub-claim (h) Durr alleges that trial counsel were ineffective for failing to object to the prosecution's statement that there were younger people on death row. The trial record shows that Durr's counsel did object to this statement. Therefore, sub-claim (h) is denied.

Sub-claim (i) alleges that trial counsel were ineffective for failing to object to the State's argument concerning non-statutory aggravating circumstances. The Ohio Supreme Court denied sub-claim (i) on direct appeal, holding that the remarks were too insignificant to rise to the level of plain error, and that Durr did not suffer prejudice because of it. Durr, 568 N.E.2d at 684. The district court also found no merit in this claim. Because the state court ruled on sub-claim (i) on the merits, we review this claim under the AEDPA standard.

[29] This Court has previously held that the “consideration of a non-statutory aggravating circumstance, even if contrary to state law, does not violate the Constitution.” Smith v. Mitchell, 348 F.3d 177, 210 (6th Cir.2003) (citing Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983)). The decision of the Ohio Supreme Court was not an unreasonable application of federal law. We find no prejudice from trial counsels' failure to object to the prosecution's statements concerning non-statutory aggravating circumstances. We agree with the merits determination of the district court. Therefore, sub-claim (i) is denied.

The most meritorious of Durr's claims, and the most troublesome allegations of prosecutorial misconduct, are raised in sub-claim (b). Durr claims that trial counsel were ineffective for failing to object to the prosecution's repeated references at mitigation to Durr's decision not to testify under oath. Durr points to three occasions when the prosecutor made such statements. The first example occurred during mitigation when the prosecutor said:

This man has taken the stand and talked to you in an unsworn statement, never den[y]ing that he killed that girl, never apologizing that he killed that girl, never explaining to you why he did these things. This is his time. He could have said anything from that witness stand and a man, I think with a little more courage than an aunt(sic), would have done more than send women to the stand on his behalf and then take the stand and try to create a reasonable doubt in your mind to intimidate you.

The second objectionable statement occurred when discussing the application of the mitigating factor concerning duress, coercion, or strong provocation, the prosecutor said:

You saw him on the stand, calm and cool in his statements, prepared to face you. Of course he doesn't want to face cross-examination.

A third time, when addressing the mitigating factor concerning whether Durr had prior convictions, the prosecutor said:

The defendant's lack of prior criminal convictions. Will he take the stand with a[s]worn statement? Unfortunately, I don't know how that applies to this case.

Durr's counsel objected to this third statement, which the trial court sustained. Defense counsel then asked the court to instruct the jury to disregard that line, which the court then did.

On direct appeal in the context of a prosecutorial misconduct claim, the Ohio Supreme Court determined that the prosecutor's first statement was “adequately tailored to inform the jury that the appellant's statements were made absent oath or affirmation.” Durr, 568 N.E.2d at 683. As for the prosecutor's third statement, the state court held that it violated State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988) (syllabus), but found no denial of a fair trial as the trial court admonished the jury to disregard the remark. Id. at 684, 528 N.E.2d 542. The district court found no merit in this claim on habeas review when it was raised as an ineffective assistance of trial counsel claim. Because the Ohio Supreme Court denied this claim on the merits, we review under the AEDPA standard.

As a general proposition, a prosecutor's comment regarding a defendant's failure to testify violates the Fifth Amendment. DePew v. Anderson, 311 F.3d 742, 750 (6th Cir.2002) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). In Ohio, a defendant may present an unsworn statement during the mitigation phase without being subjected to cross-examination. Ohio Rev.Code § 2929.03(D)(1). Accordingly, “the prosecution may comment that the defendant's statement has not been made under oath or affirmation, but such comment must be limited to reminding the jury that the defendant's statement was not made under oath, in contrast to the testimony of all other witnesses.” DePew, 311 F.3d 742, 745 (6th Cir.2002) (quoting DePew, 38 Ohio St.3d 275, 528 N.E.2d 542, 553-54 (1998)).

DePew involved several inflammatory statements made by the prosecutor during the penalty phase, each designed to completely undercut the defendant's sole mitigation theory that he was basically a law-abiding and peaceful person. DePew, 311 F.3d at 748-49. The prosecutor made several inflammatory statements. First, the prosecutor commented on the defendant's failure to testify in the following manner:

[T]he gentleman for the defendant, he told you five different times about the oath you took, and about the oath we all take, and the oath I take, and the oath you take-everybody takes the oath except the defendant; he isn't man enough to get up here and take the oath. Everybody in this case took the oath. Everybody in this case raised his right hand to this man, and he says I solemnly swear to tell the truth, the whole truth and nothing but the truth so help me God. Everybody except DePew. DePew, 528 N.E.2d at 554.

The prosecution then made several more improper statements regarding the defendant's past. The prosecutor asked a defense witness on cross-examination whether he was aware of the defendant's involvement in a knife fight at a convenience store. DePew, 528 N.E.2d at 553. This question “was particularly inflammatory because it involved the same violent act of which the defendant had been convicted....” DePew, 311 F.3d at 749. Next, the prosecutor presented without authentication or foundation, an irrelevant photograph of the defendant standing next to a marijuana plant. DePew, 528 N.E.2d at 555. “The admission of this photograph raised unsubstantiated questions about the defendant's criminal history, threatening his assertions of having a law-abiding past.” DePew, 311 F.3d at 749. “Finally, the prosecutor stated in his closing argument that the defendant failed to take the stand in order to prevent the prosecutor from asking him whether he had a subsequent conviction.” Id. “This improper statement also undermined defendant's theory that he was a law-abiding citizen, implying that the defendant was instead a recidivist continually engaged in criminal conduct.” Id.

The Ohio Supreme Court affirmed DePew's convictions and sentence, finding the remarks “harmless error in light of the overwhelming weight of the aggravating circumstances in this case relative to the factors offered in mitigation....” DePew, 528 N.E.2d at 554. On habeas review, however, this Court reversed, holding that the improper statements, particularly when taken together:

[W]ere designed to keep the jury from properly considering and weighing the mitigating evidence offered by the defendant. While improper comments of a prosecutor do not generally warrant automatic reversal, the statements in [DePew] require it because they go to the heart of the defendant's sole mitigating theory ... [a]llowing the prosecutor to make inadmissible, inflammatory-and in the words of the Ohio Supreme Court, ‘misleading’-statements ... undermines the defendant's right under the Eighth Amendment to receive the ‘constitutionally indispensable’ consideration of his proffered mitigating evidence. DePew, 311 F.3d at 749.

We also held that the prosecutor's statement concerning the defendant's refusal to testify at sentencing violated the defendant's Fifth Amendment rights as set forth in Griffin. DePew, 311 F.3d at 750 (citing Griffin, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106).

We concluded that the state courts improperly applied the harmless error standard. DePew, 311 F.3d at 751. The Ohio Supreme Court had found the error harmless on the grounds that “the crime was ‘brutal’ and that reversal of the death penalty on these grounds violated the ‘interest of the public, which has every right to expect its criminal justice system to work effectively.’ ” Id. (quoting DePew, 528 N.E.2d at 557). This Court held that this was not the proper constitutional definition of harmless error, and that “[t]he public's, or the voter's feelings in favor of capital punishment for brutal crimes are a well-known part of our political tradition, but these feelings cannot rise above or displace constitutional provisions ensuring a fair trial.” DePew, 311 F.3d at 751. Thus, cumulatively, it was clear that the errors were not harmless, because “we [had] ‘grave doubt’ that the statements by the prosecutor did not have an effect on the sentencing of the defendant.” DePew, 311 F.3d at 749.

Although close, we find that DePew is distinguishable. In DePew, defense counsel did not object to the prosecutor's comment on defendant's unsworn statement, and did not request, nor did the trial court give, any curative instruction. See Joseph v. Coyle, 469 F.3d 441, 473-74 (6th Cir.2006) (holding it was not contrary to nor an unreasonable application of federal law to deny claim of prosecutorial misconduct in spite of prosecutor's comment pointing out defendant's failure to take the stand, when the comment was not flagrant and the court instructed the jury about defendant's right not to testify), cert. denied, --- U.S. ----, 127 S.Ct. 1827, 167 L.Ed.2d 321 (2007). In Durr's case, defense counsel did object to the prosecutor's third reference to Durr's failure to testify under oath. Durr's counsel also requested, and received, an instruction to the jury to disregard the statement. The prosecutor made no subsequent references to Durr's failure to testify under oath after the objection was granted and the curative jury instruction was given. At the close of mitigation, defense counsel went so far as to move for a mistrial based on the objections to the prosecution's statements during final argument.

Furthermore, unlike DePew, the prosecutor in Durr's case did not question any of Durr's witnesses in an attempt to bring up Durr's inflammatory criminal past: his two previous rape convictions. Also, the prosecutor in this case did not introduce any irrelevant prejudicial evidence that tended to “raise unsubstantiated questions about [Durr's] criminal history, threatening his assertions of having a law-abiding past.” DePew, 311 F.3d at 749. Also, here, the prosecutor made no impermissible statements in his closing argument. Durr's claim is also distinguishable because DePew was a pre-AEDPA case subject to de novo review. DePew, 311 F.3d at 748.

Clearly, the prosecution's statements regarding Durr's failure to testify under oath were improper, and utterly gratuitous given the strength of the evidence against Durr. The rule in Griffin is simple, and there is no reason why any prosecutor should flirt with violating it. However, we are not on direct appeal here, but applying the deferential standard of the AEDPA. Cf. DePew, 311 F.3d at 748 (applying pre-AEDPA standard by reviewing the district court's grant of habeas corpus de novo). And the prosecutor's behavior in this case was much more limited than that in DePew, and attempts were made to correct it. On balance, then, we are not convinced that the prosecutor's conduct “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly, 416 U.S. at 643, 94 S.Ct. 1868). Nonetheless, we would like to remind prosecutors to avoid such dramatic, needless errors. Nevertheless, for the reasons just discussed, this case is distinguishable from DePew, and therefore, is neither contrary to nor an unreasonable application of clearly established federal law.FN4

FN4. Durr raises a fifth issue in his brief before this Court. Even though not granted in the COA, Durr contends that the district court erred in denying him an evidentiary hearing under 28 U.S.C. § 2254(e)(2). Even if properly brought before this Court, this claim would fail because Durr's “bald assertions and conclusory allegations do not provide sufficient ground to warrant ... an evidentiary hearing.” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.2001).

4. Failure to Object to Jury Instructions

Durr claims that trial counsel rendered ineffective assistance by failing to object to the following jury instructions upon completion of the mitigation phase: (a) informing the jury that it could consider additional evidence and argument on the aggravating circumstances as submitted during the mitigation phase; (b) instructing the jury on all statutory mitigating factors, including those not raised by the defense; (c) instructing the jury that it was making a recommendation only; and, (d) instructing the jury that it was not permitted to consider sympathy or mercy.

“ ‘On habeas review, errors on instructions are not reviewable unless they deprive a defendant of constitutional due process.’ ” Mason v. Mitchell, 320 F.3d 604, 638 (6th Cir.2003) (quoting Gall v. Parker, 231 F.3d 265, 321 (6th Cir.2000)). This Court must determine “ ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violate[d] due process.’ ” Byrd, 209 F.3d at 527 (quoting Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)).

In sub-claim (a), Durr argues that trial counsel should have objected to the trial court's instruction that the jury could consider additional evidence and argument on the aggravating circumstances presented during the mitigation phase of his trial. The district court found this claim without merit. The Ohio Courts never ruled on the merits of this claim, so we review under the Maples standard.

During mitigation, the State did not cross-examine any witness for the defense and offered no additional evidence. The State chose instead to rely upon the jury's verdicts of guilty for kidnaping, robbery, and rape to support the death sentence for the aggravated murder conviction. Durr does not explain how this instruction resulted in prejudice, and we can find none.

In sub-claim (b), Durr argues that trial counsel were ineffective at mitigation for failing to object to the trial court's instructions to the jury on all statutory mitigating factors, including those not raised by the defense. On direct appeal, the Ohio Supreme Court denied this claim, finding that Durr was afforded a fair trial in which counsel protected all of his constitutional rights. Durr, 568 N.E.2d at 685. The district court found no merit in this claim. Because it was ruled on the merits in state court, we review sub-claim (b) under the AEDPA standard.

This Court has recently held that, “[t]he right to have certain statutory mitigating factors considered (or aggravating ones ignored) is a creature of state statute, not the federal Constitution.” Hill, 400 F.3d at 333 (citing Zant v. Stephens, 462 U.S. 862, 878-79, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). The fact that an “ ‘instruction was allegedly incorrect under state law is not a basis for habeas relief’ by itself.” Hill, 400 F.3d at 333 (quoting Estelle, 502 U.S. at 71-72, 112 S.Ct. 475). “It is only when the error of state law ‘so infected the entire trial that the resulting conviction violates due process.’ ” Id. Durr does not show how the allegedly incorrect instruction “so infected the entire trial” that his conviction violated due process. The district court correctly determined that this instruction did not violate Durr's federal rights. The Ohio Supreme Court's decision was not contrary to or an unreasonable application of federal law. The district court did not err in denying this claim.

Next, Durr argues that trial counsel were ineffective for failing to object to the trial court's use of the term “recommendation” to describe the jury's sentencing role at mitigation. On direct appeal, the Supreme Court of Ohio denied this claim under Strickland, holding that based upon the facts in the case, the use of the term “recommendation” was not error, and remained within the constitutional boundaries set by Caldwell, so counsel's performance could not have been deficient. Durr, 568 N.E.2d at 683, 685. The district court also found no merit in this claim. Because the state courts ruled on sub-claim (c) on the merits, we review this claim under the AEDPA standard.

This Court has denied habeas relief arising from jury instructions that inform the jury that it is making a sentencing recommendation when such an instruction is an accurate recitation of state law. See Buell v. Mitchell, 274 F.3d 337, 352-53 (6th Cir.2001) (citing Ohio Rev.Code § 2929.03(D)(2)). In Mapes v. Coyle, 171 F.3d 408, 415 (6th Cir.1999), the Court held that, “while it is somewhat inaccurate to state that a sentencing jury ‘recommends' a life sentence when such a recommendation would be binding ... even if the trial judge's instruction was erroneous it could not have diminished the jury's sense of responsibility in Caldwell terms ... this is an accurate statement of Ohio Law ... [t]here [is] no constitutional error.” Durr does not show resulting prejudice from this instruction. It follows that the Ohio Supreme Court's decision was not contrary to or an unreasonable application of federal law. We agree with the district court's determination that this instruction did not violate Durr's constitutional rights. Sub-claim (c) is denied.

Finally, Durr argues in sub-claim (d) that his constitutional rights were violated by the trial court's instructing the jury at mitigation that they were not permitted to consider sympathy or mercy. On direct appeal, the Supreme Court of Ohio denied this claim on the merits. Durr, 568 N.E.2d at 685. The district court found no merit in this claim, explaining that nothing in the instruction violated Durr's federal rights. Because the state court ruled on this claim on the merits, we review sub-claim (d) under the AEDPA standard.

[39] This Court held in Mapes that “an instruction that the jury should not be swayed by ‘mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling’ was not only unobjectionable ... it ‘served the useful purpose of confining the jury's imposition of the death sentence by cautioning it against reliance on [irrelevant,] extraneous emotional factors.’ ” Mapes, 171 F.3d at 416 (quoting California v. Brown, 479 U.S. 538, 542-43, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987)). Based on this Court's previous holdings, the instructions given at Durr's trial were not improper. Thus, Durr cannot show any resulting prejudice from trial counsel's failure to object. The Ohio Supreme Court's decision was not contrary to or an unreasonable application of federal law, as the district court found. Sub-claim (d) is denied.

C. Insufficiency of Evidence for Rape Conviction

Finally, Durr argues that the prosecution presented insufficient evidence to support his rape conviction. Specifically, Durr claims that the state failed to present proof beyond a reasonable doubt that Durr at any time raped Angel Vincent. He argues that there was no medical or eyewitness testimony to establish a rape occurred, and that circumstantial evidence of Angel's partially naked body is insufficient to sustain the charge of rape and the capital specification that the offense occurred in the commission of rape. Durr initially raised this claim on direct appeal. Because the state court reviewed this claim on the merits, we review this claim under the stricter AEDPA standard.

Ohio's statute concerning rape at the time of Durr's trial stated that no person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. Ohio Rev.Code § 2907.02(A)(2) (repealed 1995). Sexual conduct was defined as “vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” Ohio Rev.Code § 2907.01(A) (repealed 1995). Sexual contact was defined at the time of Durr's trial as “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is female, a breast for the purpose of sexually arousing or gratifying either person.” Ohio Rev.Code 2907.01 (repealed 1995).

Acknowledging that Vincent's “body was so severely infested with bacteria, testing for the presence of acid phosphates and spermatozoa was inconclusive,” Durr, 568 N.E.2d at 677, the Ohio Supreme Court nevertheless rejected the claim, stating:

In this case, the prosecution presented highly probative circumstantial evidence. Except for a pair of tennis shoes, the victim's body was found nude from the waist down. In addition, Deborah Mullins testified that when she saw Angel tied up in the back of [Durr's] car, [Durr] informed Deborah that he was going to kill Angel because she would tell. Based on these facts, we believe that there was sufficient probative evidence from which a rational trier of fact could have found [Durr] guilty of rape beyond a reasonable doubt. Durr, 568 N.E.2d at 682.

Two state supreme court justices disagreed with the majority's determination that there was sufficient evidence to support a conviction of rape. Id. at 686. (Moyer, C.J. and Brown, J., concurring). The district court held that “the evidence cited by ... the Supreme Court of Ohio support[s] a finding that sufficient evidence existed for any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” We review this claim under the AEDPA standard.

This issue presents a very close question, since there is absolutely no physical evidence of any penetration to affirmatively establish sexual conduct under Ohio Rev.Code § 2907.01(A) (repealed 1995), rather then a less severe charge of sexual contact under Ohio Rev.Code § 2907.01(B) (repealed 1995). Were this case before us on de novo review, we might be hard-pressed to conclude “after reviewing the evidence in the light most favorable to the prosecution, [that] any trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, our review on habeas is very deferential to the state courts, and we simply cannot say that the insufficiency of evidence claim resulted in a decision that was contrary to, or involved an unreasonable application of Jackson.

As the Ohio Supreme Court held, although circumstantial, the evidence in this case was “highly probative.” Deborah Mullins testified that she saw the victim tied up in Durr's car, and that Durr told her that he was going to “waste” Angel because “she would tell.” The body was nude from the waist down, except for tennis shoes. Medical evidence was inconclusive because the amount of bacteria in the body. Based on this evidence, a jury could have reasonably inferred that Angel had been raped. As circumstantial evidence is entitled to equal weight as direct evidence, United States v. Farley, 2 F.3d 645, 650 (6th Cir.1993), we cannot conclude on habeas review that the Ohio Supreme Court erred. As the state of Ohio has considerable expertise in matters of Ohio state criminal law, it is appropriate for this Court to exercise substantial deference to the Ohio Supreme Court in this area. See Medina v. California, 505 U.S. 437, 445-46, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (stating that Court “should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.”). Therefore, claim thirty-six is denied.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court's denial of Durr's petition for a writ of habeas corpus.

Darryl M. Durr on Death Row

The victim

16-year-old Angel Vincent