concurring. I concur in the judgment. I write separately for two specific reasons.
First, I disagree with some of the interpretations contained in the opinion of several of the Rules of Evidence. Of particular concern is the language contained in fn. 10 and the analysis of Evid. R. 404(A)(1) and 405(A).
Second, with the recitation in the opinion of the number of errors deemed harmless, it is inevitable that the question will be raised as to when cumulative “harmless error” becomes reversible error. We were confronted with much the same problem in our recent case of State v. DePew (1988), 38 Ohio St. 3d 275, 528 N.E. 2d 542.
For those who might raise this question, as has been raised in some of our previous death penalty cases for errors occurring in both the guilt and penalty phases of a trial, a complete reading of the texts of Delaware v. Van Arsdall (1986), 475 U.S. 673, and United States v. Hasting (1983), 461 U.S. 499, would be instructive. Hasting discusses in detail the import of the court’s decision in Chapman v. California (1967), 386 U.S. 18. Of particular interest are the court’s comments in Hasting at 509:
“Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations * * *. The goal, as Chief Justice Traynor has noted, is ‘to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.’ * * *” (Emphasis added.)
In the thirty-nine death penalty cases heard by this court since the advent of the new law in 1981, with possibly one or two exceptions, proof of the defendant’s guilt has been overwhelming. Using the analysis set forth by today’s opinion and properly considering Chapman, Hasting and Van Arsdall,17 it should be no mystery why the United States Supreme Court has not accepted for complete review any one of the Ohio death penalty cases appealed to that court.
Accordingly, I concur.
I recognize that Hasting and evidently Van Arsdall were not death penalty cases. It would seem, however, that the penally involved should make no difference in the analytical assessment of the doctrine involved.