dissenting. I respectfully submit that the judgment in this case should be reversed and remanded for a retrial as the consequence of three major errors, each one prejudicial. First, the defendant did not have adequate representation at trial. Second, the conviction and sentence are contaminated by the admission of highly prejudicial hearsay. These two errors are related and best understood in combination. Finally, the principal witness for the prosecution had been judicially declared mentally incompetent. His testimony was received by the trial court in violation of established legal precedent.
I
Ineffective assistance of counsel has become an almost generic assignment of error in appeals from conviction in capital cases. The error is frequently asserted in appeals from lesser criminal convictions. Quite properly, we have screened such assertions with some skepticism and in accord with the standards set in Strickland v. Washington (1984), 466 U.S. 668, the seminal case for measuring the ineffective assistance of counsel claim. However, we cannot and should not ignore the claim when the record demonstrates that the defendant did not receive the representation that the law requires. Put simply, I would reverse and send this case back for another trial because the integrity of the judicial process is called into question by the failings in the trial below.
The Sixth Amendment’s guarantee of the right to counsel “is the right to the effective assistance of counsel.” McMann v. Richardson (1970), 397 U.S. 759, 771, fn. 14. In order to see the error in the present case, it is necessary to look in detail at the facts. An adequate picture cannot be gleaned from the summaries offered in the majority’s opinion.
In going to the specifics, the failure of representation at trial can be broken into three categories: (1) failure to prepare for trial, (2) consent (probably as the result of lack of preparation) to the admission of outrageous, improper and damning hearsay evidence, and (3) failure to present any opening argument to the jury.
A. Failure to Prepare
“* * * [CJounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland v. Washington, supra, at 691.
Our facts are these. Approximately thirty inmates were in the room where the killing took place. Some of these thirty claimed to be eyewitnesses. In addition, a number of guards arrived on the scene immediately after the killing. The record indicates that defense counsel did not interview a single inmate or guard prior to trial.4
A failure to interview the basic *151witnesses is devastating in a case where the death penalty may be imposed. Knowledge of the information possessed by the thirty or more basic witnesses was essential to formulating trial strategy, to presenting the best available defense.
Clearly, failure to interview any of the eyewitnesses violates Standard 4-4.1 of the ABA Standards for Criminal Justice. That standard requires counsel to “* * * conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case * * *.” (Emphasis added.) I American Bar Association Standards for Criminal Justice (2 Ed. 1980) 4-53.
The majority asserts that this “could easily have been a considered choice of counsel * * *.” In a capital case, especially one in which the defendant took the stand to proclaim his innocence, what consideration justifies a failure to interview the fact witnesses? Though the majority skirts the point, the record reveals two explanations which were offered by trial defense counsel: (1) he did not have time to interview witnesses because he received the long list of potential witnesses from the prosecutor only one month before trial, and (2) the prison would not allow access to the inmates without the inmates’ permission. Neither explanation is exculpatory. Our task is not to allocate blame among the defense counsel, prosecutor and prison authorities. Our duty is to measure the consequence of going to trial in a capital case without interviewing the witnesses. Defense counsel did not seek a continuance to extend the time for trial preparation. Nor did he interview the detention officers. Surely those witnesses were available. If inmate witnesses were unavailable, a challenge to the prison policy should have been made in court.
B. Consent to the Admission of Inflammatory Hearsay
The question of adequate representation does not end with the almost total lack of preparation by counsel prior to trial. Because counsel had not interviewed the witnesses and thus could not offer favorable facts through direct testimony, they made the ill-advised choice of allowing a two-hundred-eighty-five-page ‘ ‘investigative report” to be admitted into evidence. The report is hearsay and is excluded under Evid. R. 803(8). Much of the information is irrelevant pursuant to Evid. R. 401. The report is inflammatory. Just how ill-advised was the decision to let this report into evidence may be seen from a look at its contents. These specifics were placed before the jury:
1. The defendant’s entire criminal record dating back to 1945.5
*1522. A psychological evaluation of the defendant which reveals these incidents:
a. “He allegedly stabbed another inmate in May, 1947.”
b. “[A]ssault upon another inmate ‘under unusual circumstances’ in January, 1954. * * *”
c. “[H]e cut another inmate * sit *
d. “[A]n unprovoked assault on another inmate in August, 1963.”
e. “[I]n February, 1972 he attempted to assault an officer with his fists. His statement at this time was, ‘Just putting a lion in the cage and jugging at him. After getting out of that cage you have to have revenge. I did hit him a few times when I came out.’ ”
f. “[0]n November 22, 1982, apparently without any provocation, he assaulted a female visitor, unknown to him, with a 2 by 2 stick. Later, he was to say that this was simply the result of an accumulation of frustration and also because he wanted closer security as he had previously requested.”
g. “[A] report of January 5, 1965 in which allegedly Bradley, without any provocation, plunged into the Death Row shake down area and struck another inmate.”
h. The defendant’s prior murder offense is graphically depicted: “This offense seems to have involved an argument with another man at a card game. Bradley seems to have been drinking and felt that he had been cheated. He left the game and returned with a shotgun and killed the man although his statement is that the man lunged at him. In 1977 Bradley told us that he did not feel that he was guilty of this charge because the victim had taken his money.”
i. “Dr. Alpers * * * described him as surly and refusing medication. He felt that Bradley would ‘fight at the drop of a hat.’ * * * Bradley * * * developed a belligerent attitude toward everyone connected with the institution.”
j. “In February, 1972 there was the incident in which he struck at an officer and made the comment that he felt like an animal who had been caged and had to have revenge. The real issue seems to have been that Bradley wished [to be given] psychotropic medication and he became enraged when the officer did not make immediate arrangements for this.”
k. “Bradley admitted to heavy drinking * * *.”
l. “He has demonstrated dangerousness to others both in the institutions and in civilian life.”
m. “[H]is social orientation is probably dyssocial and condones *153violence in the solution of interpersonal frictions.”
n. “Mr. Bradley chooses to justify his actions by externalizing responsibility onto harassments which he perceived as coming from outside of him. He has demonstrated a ready ability to justify his actions in the past. He justified his previous murder offense by saying that the victim cheated him and therefore his action of killing the victim was not wrong. In 1972 he justified an attempted assault upon an officer by saying that he had been locked in a ‘cage.’ In November, 1982 he justified an assault upon a female visitor by citing accumulated frustration. Now, he justifies the most recent action as resulting from frustration, also, ‘The pot boiled over.’ There is no need to justify unless there is some sense of choice and some sense of responsibility.”
o. “[T]he examiner is not convinced, even though a major psychiatric disorder is present, that Mr. Bradley’s consciousness and ability to assess his environment is [sic] so impaired that he would have known that such actions were wrong.”
p. “[T]he examiner is not convinced that Mr. Bradley was devoid of control over his actions. He chooses to justify them and he has demonstrated the ability to maintain acceptable behavior for periods of time in the past. The question is one of degree, and the present examiner cannot say with any precision how much Mr. Bradley’s impulse control was impaired.”
3. Newspaper clippings, given to the jury, contained the following:
a. “Bradley * * * was sentenced to the electric chair 21 years ago for killing a man he accused of cheating him out of $1.”
b. “[The] sentence [of death] was changed in 1972 to life in prison.”
c. “A prayer vigil” was held for Bowling (the victim) who “had never had problems with inmates in 'the past,” according to the prison superintendent.
4. A notation by Officer Teets that “Howard * * * will testify how good [sic] Eric [the victim] treated inmates.”
5. Information that Bowling was married.
6. A notation that “[inmate] Limle said he really liked Eric and would have helped him if he had seen what was going on.”
7. A tape recording of Bradley’s refusal to talk with law enforcement officers about the incident.
8. A report that Officer Teets “read Inmate Bradley his constitutional rights. Inmate Bradley said he didn’t have anything to say. * * * I read the waiver to him and when I read the waiver he then refused to sign the form. * * *”
9. A report stating “[t]his officer * * * interviewed * * * Bradley at Chillicothe Correctional Institute. Bradley was not advised of his constitutional rights during this interview. During the interview Bradley would use phrases such as ‘All people, the whole world.’ He would not answer questions directed specifically toward him with a specific denial. * * *
“Bradley would not admit that he killed Mr. Bowling nor did he deny killing Mr. Bowling. Bradley started saying he would ‘Take the fifth’ when questions were asked. * * *”
10. The written statement of inmate Steele: “The day before I started working full-time in the Sheet Metal Shop I was walking by Mr. Bowling’s desk and Mr. Bowling was sitting alone at his desk. Mr. Bowling told me to go tell Bradley that starting tomorrow Bradley and I would start working full time in the Sheet Metal Shop. *154Bradley was sitting on a wooden bench near the painting area and I walked over and told Bradley he would start working full time tomorrow. Bradley came off the bench and said ‘Who told you to tell me this.’ Because of his voice and the way he came off the bench I could see he was upset. I told Bradley ‘The short bald headed guy, the boss.’ I then said to Bradley ‘If you don’t want to work 8 hours then you should explain it to your supervisor.' I then walked away from Bradley.
“I then went over and told Mr. Bowling that Bradley seemed fairly upset about this and maybe he should talk to Bradley about it. * * *”
11. The written statement of inmate Patterson: “* * * The day before this happened I saw Eric and Inmate Bradley by Eric’s desk. Eric told Bradley to do his work over. Bradley got upset and pointed his finger at Eric and said ‘I’m going to get you.’ I don’t [know] why Eric told him to do his work over. * * *
“Bradley was loud when he said to Eric, ‘I’m going to get you.’ Eric did not say anything back to Bradley.”
12. A report by Officer Teets following inmate Allen’s written statement: “When I had Allen read the statement, he wanted the sentence ‘he would go to his job early and I told him he wasn’t getting paid extra for going in early but he just wanted to’ removed. Allen said this sounded like Bradley was planning the killing and Allen likes Bradley and wouldn’t want this said against him. The sentence was marked out.”
13. The written statement of Corrections Officer Smith: “* * * I heard today that Inmate Leszyeski may have overheard Bradley and Eric argueing [sic] prior to the killing.”
14. The written statement of Corrections Officer Taylor: “When I finished with the inmate I was checking I looked at Bradley and said to Mr. Seth, ‘He looks as nervous as a whore in church.’ I think I told Bradley to come up to the table, which he did. Bradley gave me his shirt and I found 2 or 3 stains on the front that I thought were blood. I said to Bradley ‘What’s this?’ I reached the shirt out and pointed to the stains. Bradley said ‘Blood from the Foreman.’ Bradley spoke king [sic] of low. I said to Bradley ‘What did you say?’ Bradley said to me ‘The Foreman’s blood.’ It shocked me when he said that so I said ‘Did you do it?’ Bradley answered ‘Yes I did it.’ * * * Someone yelled something at Bradley as we were going down the hall but I don’t know who it was. I think Bradley said something about ‘this going back a long time.’ * *
15. Officer Teets’ notation that “Bradley was asked how he learned that he was going to work full time in the shop. Bradley said an inmate told him he was going to work full time. This would corroborate what inmate Steele has said. * * *”
16. Officer Teets’ notation that inmate Patterson “will tell the truth to questions he is asked. * * *”
17. Statements from key prosecution witnesses that they were willing to take polygraph tests.
18. The written statement of inmate McCoy: “* * * I saw Inmate Bradley had a piece of metal raised above his head and he was holding it with both hands. Bradley hit Eric with the metal and I saw Eric fall to the floor. * * * Bradley hit Eric 3 or 4 times after he fell and I tried to stop Bradley. I kind of pushed Bradley and told him he didn’t want to do that. Bradley raised the metal as if to hit me so I got away from him. * * *”
19. The written statement of inmate Jennings: “Lather[n]s told me Bradley was involved and that two *155white guys saw it and had told on Bradley. * * *”
20. The written statement of inmate Latherns: “It really shocked me that Bradley did this. * * *”
21. The written statement of inmate Ankney: “King had told me Bradley had killed Eric * * *.”
22. The written statement of inmate Mills: “Someone said they didn’t want involved [sic] in this and Bradley said you don’t have to worry. I know what happened and you [sic] not involved.”
23. A notation that Rick Taylor asked Bradley, “Did you do this?” and Bradley said he did.
24. The written statement of Corrections Officer Duke: “* * * Rick. Taylor was looking at [Bradley’s] * * * blue shirt and Taylor said ‘Where did the blood come from.’ Bradley said ‘That’s the foreman’s.’ After Bradley said that a couple of us said ‘Did you do it’ in sequence. Bradley said ‘Yes, I done it.’ * * *”
25. The written statement of Corrections Officer Seth: “* * * Inmate Bradley removed his shirt and a spot of blood was found on it. I asked Inmate Bradley what it was and he said blood. I then asked where it came from and he said over there, & nodded to the area of where Eric Bowling’s desk is located at. Officer Richard Taylor then asked Inmate Bradley, ‘Did you do it,’ and Inmate Bradley replied, ‘Yes.’ ”
26. The written statement of inmate Judon: “* * * Bradley admitted he did it. * * *”
This highly damning evidence was otherwise inadmissible and, thus, was placed before the jury solely because trial defense counsel consented. It is no surprise that the jury found the element of prior calculation and design to be present, convicted the defendant of aggravated murder and voted to recommend the death penalty. It stretches one’s imagination beyond the breaking point to describe the information that went to this jury as harmless or nonprejudicial.
The right of an accused to confront and cross-examine the witnesses against him is fundamental. In allowing these hearsay statements into evidence, defense counsel forfeited any chance of establishing a doubt in the minds of'the jurors that the defendant purposely killed Bowling. This is especially disturbing because counsel presumably knew, at the time they let the deluge in, that the defendant was going to take the stand and deny having anything to do with Bowling’s death.
It can fairly be said that the report contained some information helpful to Bradley which was used by defense counsel in summation and cross-examination. However, the favorable information could have been elicited far more effectively (and without destroying the case) had only the favorable witnesses been called to testify. Counsel could not do that because the witnesses had not been interviewed prior to trial.
Moreover, the record indicates that defense counsel took, at most, two hours to review the two-hundred-eighty-five-page report before agreeing to its admission. Defense counsel could not have adequately studied the report. Consider the irony of the following. Defense counsel requested that one item be deleted from the report: the section of Bradley’s prior murder sentence which indicated he had been previously sentenced to death. However, that same information was included in at least eight different places in the report which did go to the jury due to defense counsel’s consent. Admission of the report was not the result of careful or deliberate strategic choices.
*156C. Waiver of Opening Statement
The importance of the opening statement, in a criminal defense requires no lengthy elaboration. The principle has been stated thus: “* * * It is generally conceded that, except for short misdemeanor trials without a jury, an opening statement for the defense should never be waived. * * *
“Defense counsel, in opening statement, must reduce the effect of the prosecutor’s opening by making the contradictory statement that will cast immediate doubt in the minds of the jurors. The failure to do so may cause some jurors to make up their minds even before the first witnesses have been called.
“If defense counsel is unsure of what course to follow or has some secret defense which she or he does not wish to reveal at the outset of the trial, a superficial opening statement is still preferable to none at all. * * *” Strategies & Techniques in Criminal Defense (2 Ed. 1983) 143-144; see, also, McCloskey & Schoenberg, Criminal Law Deskbook (1988), Sections 15.02 and 15.06(3)(k).
Conceivably, circumstances might exist where waiving the opening statement is sound trial strategy. None is apparent in this case and trial defense counsel did not articulate any. Sadly, it appears that the failure to make an opening statement was the result of the lack of trial preparation. Defense counsel did not know how to argue the evidence that would be admitted against the accused and thus made no argument.
D. Prejudicial Effect
In certain Sixth Amendment contexts, prejudice is presumed. For instance, “[ajctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Strickland, supra, at 692. Where, as here, defense counsel fails to interview any of the available witnesses to a violent murder, a constructive denial of the assistance of counsel may be established. Cf. State v. Johnson (1986), 24 Ohio St. 3d 87, 24 OBR 282, 494 N.E. 2d 1061. However, prejudice need not be presumed in this case. It is demonstrable from the record.
The state must, of course, prove every element of a crime beyond a reasonable doubt. Aggravated murder entails a purposeful killing done with “prior calculation and design[.]” R.C. 2903.01(A). Prior calculation and design is a more stringent element than deliberate and premeditated malice. It requires a scheme designed to implement the calculated decision to kill; instantaneous deliberation is not sufficient. State v. Cotton (1978), 56 Ohio St. 2d 8, 10 O.O. 3d 4, 381 N.E. 2d 190.
The evidence submitted to the jury on the issue of prior calculation and design consisted of the physical layout of the metal shop, inmate Patterson’s testimony at trial, and the hearsay testimony from the two-hundred-eighty-five-page report. The most persuasiye evidence of prior calculation and design is that contained in this report.
A twenty-foot distance existed between the victim and the scrap metal stockpile from which the murder weapon was apparently obtained. Except for the ambiguous testimony of inmate Patterson (see Section II, infra), the twenty-foot distance between the murder weapon and the victim was the only competent evidence of prior calculation and design. Whether defendant struck out at Bowling in a fit of sudden, unexplained rage or killed Bowling by a prior calculation and design is, on the record (absent the *157hearsay report), very much an open question.
The investigative report makes the case on prior calculation and design. It contained inmate Steele’s hearsay statement that Bradley was upset with Bowling. Steele refused to testify at trial and was never subject to cross-examination. The report contained Patterson’s hearsay statement that Bradley told Bowling, “I’m going to get you.” It contained the hearsay-within-hearsay statement of Corrections Officer Smith that “Leszyeski may have overheard Bradley and Eric argueing [sic] prior to the killing.” It contained the hearsay statement of Officer Taylor that “Bradley said something about ‘[t]his going back a long time.’ ” Finally, the report contained a notation by Officer Teets that inmate Allen, Bradley’s cellmate, wanted his written statement changed to remove the sentence “[h]e [Bradley] would go to his job early and I told him he wasn’t getting paid extra for going in early but he just wanted to” because “Allen said this sounded like Bradley was planning the killing and Allen likes Bradley and wouldn’t want this said against him.”
In addition, the report contained much information which, though not directly related to the issue of prior calculation and design, has a large potential for distorting the jury’s entire view of the evidence. For example, through the psychiatric evaluation the jury received detailed accounts of violent episodes for which Bradley was never charged and of which he was never convicted, and they were informed that Bradley had previously received the death penalty. “The existence of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to the jury unless specifically permitted under statute or rule. The undeniable effect of such information is to incite the jury to convict based on past misconduct rather than restrict their attention to the offense at hand. * * *” State v. Allen (1987), 29 Ohio St. 3d 53, 55, 29 OBR 436, 438, 506 N.E. 2d 199, 201.
In sum, the defendant was not adequately represented at trial. Strickland, supra, supplies the test. “* * * The defendant must show 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.” (Emphasis added.) Id. at 694.
“* * * When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting guilt. * * *” Id. at 695.
“* * * [A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. * * *” (Emphasis added.) Id. at 696.
The deficiencies here may be easier to see from another perspective. Would the public tolerate a prosecutor who, in an aggravated murder case: (1) did not, prior to trial, interview the witnesses? (2) failed to make an opening statement? and (3) consented to the admission of massive inadmissible evidence detailing the despicability of the victim?
II
The testimony of James Patterson should have been excluded as incompetent.
Evid. R. 601 provides: “Every person is competent to be a witness except:
“(A) Those of unsound mind, and *158children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly ^ * * f>
Patterson, who was mentally retarded, had been judicially declared incompetent and placed under guardianship. When the trial judge was informed of this fact, he examined Patterson in chambers to determine his competence to testify.
This court has held it is “inherent in the test of competency” that a witness understand the nature of an oath and the penalties for its violation. State v. Wilson (1952), 156 Ohio St. 525, 529, 46 O.O. 437, 439, 103 N.E. 2d 552, 555. The trial judge asked Patterson whether he knew what it meant to take an oath. Patterson said: “Well, we tell what happened and what happened in the incident.” This response, cryptic at best, leaves it unclear whether Patterson understood that he had a duty to give a truthful account of “what happened in the incident.” Indeed, Patterson was not even asked by the judge if he knew the difference between truth and untruth.
Nor does the record support a conclusion that Patterson understood that punishment would follow if he lied. The judge did not ask Patterson what happens if a lie is told. Instead, he determined that Patterson had attended church and/or Sunday school as a child. However, the fact that a witness has had some Sunday school exposure is not, by itself, enough to show “* * * that he will fulfill the' obligation to speak truthfully as a duty which he owes a Diety [sic] or something held in reverence or regard * * *.” Hill v. Skinner (1947), 81 Ohio App. 375, 377, 37 O.O. 213, 79 N.E. 2d 787, 789.
The determination of competence does lie in the sound discretion of the trial court. State v. Wildman (1945), 145 Ohio St. 379, 386, 31 O.O. 5, 8, 61 N.E. 2d 790, 793. Here, however, Patterson’s crucial testimony was admitted though the trial court failed to determine whether he “understood right from wrong, whether it is wrong to lie, the consequences of lying, [or] the nature of an oath to tell the truth * * *.” State v. Eastham (1988), 39 Ohio St. 3d 307, 313, 530 N.E. 2d 409, 414. In allowing the testimony without making the proper inquiries, the trial court abused its discretion.
Ill
Though our Constitution and laws do not guarantee a perfect trial, they do demand a fair trial. This demand reaches its zenith when a person’s life is at stake. It is true that society requires punishment for criminal behavior. The defendant in this case is singularly unappealing and his history of conduct is despicable (especially when consideration is given to the otherwise inadmissible descriptions and vignettes which are part of this record). However, there are other important values at stake here. These include the integrity of the judicial process, the conduct of a fair trial and the limitation of the evidence to that which is admissible under established precedent. The process by which this defendant stands convicted and sentenced is unacceptable. Therefore, I respectfully dissent.
Wright, J., concurs in the foregoing dissenting opinion.Appendix
“Proposition of Law No. /[:] The trial court erred when it admitted into evidence the entire two hundred eighty-five page police report which included newspaper clippings, witness *159statements, and numerous photographs, in violation of appellant’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. //[:] Appellant was denied effective assistance of counsel in the guilt portion of the trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. III[:] The prosecutor’s failure to provide discovery until twenty-five days prior to the commencement of trial, such discovery containing fifty-five potential witnesses, violated appellant’s rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution; and Crim. R. 16.
“Proposition of Law No. IV[:] The state of Ohio’s failure to provide William Bradley with pretrial disclosure of evidence that supported his insanity defense; that the crime was actually committed by Eddie Moss; and that the state of Ohio’s pivotal witness was mentally incompetent, violated appellant’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution; Sections 10 and 16, Article I of the Ohio Constitution and Crim. R. 16.
“Proposition of Law No. V[:] Admission of testimony pertaining to an oral statement obtained from appellant in violation of his constitutional rights under Miranda and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution; Sections 14 and 16, Article I of the Ohio Constitution denies him these rights.
“Proposition of Law No. F7[:] Information obtained by a state psychologist from an accused without the benefit of Miranda warnings should not be admitted into evidence at trial. The admission of this evidence in the present case is a violation of appellant’s constitutional rights as guaranteed by the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
“Proposition of Law No. VII[:] It is an error to allow the jury to have a tape recorder to listen to a tape of appellant exercising his Miranda right to remain silent. This error denied appellant his constitutional rights as guaranteed by [the] Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. VIII[:] Permitting guard Richard Taylor to testify that appellant appeared ‘nervous as a whore in church’ violates appellant’s rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. /X[:] The trial court erred to the prejudice of appellant when it instructed the jury that it was to find the defendant not guilty only if it determined that appellant ‘had nothing to do with the death,’ in violation of appellant’s rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.
“Proposition of Law No. X[:] Appellant was denied effective assistance of counsel in the mitigation portion of the trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and *160Section 10, Article I of the Ohio Constitution.
“Proposition of Law No. Y7[:] The trial court erred when it conducted the mitigation hearing a mere few hours after the completion of the psychological examination and permitted only three days for completion of the psychological examination in violation of appellant’s rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution and Ohio Revised Code, Section 2929.024.
“Proposition of Law No. XII[:] The trial court erred to the prejudice of the appellant when it appointed a psychologist who had previously stated that he could not render an opinion to conduct the mental evaluation of the appellant prior to the mitigation phase of the trial. This error violated appellant’s [rights guaranteed by the] Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution.
“Proposition of Law No. XIII[(\ The trial court’s penalty phase instruction on reasonable doubt shifted the burden of proof to appellant, and allowed the state to prove fewer than every element needed to impose the death sentence in violation of appellant’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. YIU[:] The trial court abused its discretion and by doing so erred to the prejudice of appellant, by permitting witnesses to testify as to the character of the victim. Such actions violated appellant’s rights as guaranteed by Ohio Evidence Rule 404, the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XV[:] It is error to make repeated references to the widow of the victim during voir dire of a capital murder trial thereby violating appellant’s constitutional rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to- the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XF/[:] The trial court erred to the prejudice of appellant by introducing gruesome and prejudicial pictures into evidence and showing same to the jury when the prejudicial effect of said pictures clearly outweighed the probative value. The effect of this erroneous evidentiary ruling was the denial of appellant’s rights to due process and a fair and impartial trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XVII[:] Allowing a witness to graphically describe the condition of the victim’s body [is] a violation of Ohio Rule of Evidence 403 and denies appellant due process and a fair and impartial jury in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XVIII[\] The trial court and prosecutor’s comments to the jury that the jury’s verdict as to death was only a recommendation and not binding upon the trial judge violated appellant’s rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
“Proposition of Law No. YZY[:] The trial court erred to the substantial *161prejudice of appellant by failing to excuse prospective jurors Hollback, Knore and Wheeler for cause in violation of Crim. R. 24(B)(9), R.C. Sections 2945.25, 2313.42, and 2343.43, Section 10, Article I of the Ohio Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
“Proposition of Law No. XX[i] Failure to permit counsel for appellant to cross-examine the state of Ohio’s witness, Michael Steele[,] deprived appellant of his right to cross-examine witnesses as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution [and] Section 10, Article I of the Ohio Constitution.
“Proposition of Law No. JOT/[:] It is an abuse of discretion to allow a person who has been judicially declared incompetent to testify in a capital murder trial. Appellant was denied due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
“Proposition of Law No. XXII[:] It is a violation of Evid. R. 611(C) to allow an attorney to ask leading questions of his own witness on matters of substance in a capital murder trial. This violation denies appellant’s rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.
“Proposition of Law No. XXIII[:] It is a violation of Evid. R. 611(A) and R.C. 2945.03 to allow a witness to make a statement unrelated to any material fact of the case. This error deprived appellant of a fair trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XXIV['i\ It is an abuse of discretion to allow the court reporter to read selective sections of testimony of four witnesses to the jury, thereby prejudicing the appellant and denying him due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.
“Proposition of Law No. XXV[:] Prosecutorial argument during mitigation phase which implored the jury to penalize the accused for exercising his constitutional rights denied appellant his right to a fair trial and impartial jury as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XXVI[:] An appellant has a right to have the admissibility of his statements determined by the trial court and not the jury. Evidence Rule 104 is violated when the jury is allowed to make this determination and appellant [is] denied his due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
“Proposition of Law No. XXVII[:] It is error for the trial court to place upon appellant the burden of going forward as to the issue of suppressing appellant’s statement, thereby violating appellant’s right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
“Proposition of Law No. XXVIII[:] It is error to require a person accused of a capital crime to appear in shackles during the trial. This action violated appellant’s rights to a fair trial as guaranteed by the Fifth, Sixth and *162Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.
“Proposition of Law No. XXIX\f\ A trial court’s instruction that the jury could sentence an accused to death if the crime charged was horrible, bad, shocking to the conscience, awful, heinous, or offensive, violated Ohio law and his right to due process, fair and impartial jury, and against cruel and unusual punishment as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
“Proposition of Law No. XXX[{\ It is error for the trial judge to inform potential jurors as to his personal opinion concerning when the death penalty was appropriate as such comments violate appellant’s rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXXI[-¡\ Comments to prospective jurors concerning a radio broadcast are prejudicial to appellant and deny him a fair trial and an impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 5, 10 and 16, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXXII[i] Failure of the trial court to adequately admonish the jury violates appellant’s right to a fair trial by an impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXXIII[:] The performance of trial counsel during voir dire resulted in a denial of appellant’s constitutional right to the effective assistance of counsel and to a fair and impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 5,10 and 16, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXX[7V[:] It is prejudicial error to disclose in opening statement that the appellant had a prior conviction. This error denied appellant his right to a fair trial by an impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXXV[:] It is error to admit into evidence, over objection, the entire psychological report which was prepared in the mitigation [phase] pursuant-to O.R.C. 2929.03(D)(1) in violation of appellant’s rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 14, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXXVI\f\ Failure to instruct the jury concerning the appellant’s constitutional right not to testify denies appellant’s rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of [the] Ohio Constitution.
“Proposition of Law No. XXXVII[\] The court’s instruction prohibiting consideration of mercy, sympathy and prejudice in the sentencing decision violated appellant’s constitutional rights to due process, equal protection and against cruel and unusual punishment.
“Proposition of Law No. XXXVIII[:] The trial court erred to the prejudice of appellant when it charged the jury that it could consider any factor that it desired in determining the appropriate penalty. This error violated *163appellant’s rights as guaranteed by the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XXXJX\f\ Ohio’s mandatory sentencing scheme prevented the jury from deciding whether death was the appropriate punishment in violation of appellant’s rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XL\f\ The decision of the trial judge was erroneously based upon non-statutory aggravating factors in violation of Ohio Revised Code, Sections 9 and 16, Article I of the Ohio Constitution and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and failed to consider all evidence presented in mitigation in violation of appellant’s constitutional rights under Lockett v. Ohio and Eddings v. Oklahoma.
“Proposition of Law No. XLI[:] A defense counsel’s failure to preserve error violates appellant’s rights to a fair trial and to the effective assistance of counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XLII[:] The sentence of death in the present case is inappropriate due to the large number of errors occurring at both the guilt and mitigation phases of trial thereby depriving the sentence of all indication of reliability as required by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution and Ohio Revised Code Section 2929.05.
“Proposition of Law No. XLIII[:] The proportionality review that this court must conduct in the present capital case pursuant to Ohio Revised Code, Section 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code Section 2929.05.
“Proposition of Law No. XLIV[i¡ The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions governing the imposition of the death penalty, do not meet the prescribed requirements, and, thus, are unconstitutional both on their face and as applied to appellant Bradley.”
During a mid-trial suppression hearing concerning Bradley’s confession, defense counsel stated:
“MR. RODEHEFFER: I’ll call my first witness. I have to rely a certain amount on the prosecution’s knowledge of this case, *151since I haven’t interviewed any of these gentlemen. I would like the name of the corrections or police officer who has heard the conversation or was involved in the interrogation or strip search of these prisoners out there.
“THE COURT: And you will call him as a witness?
“MR. RODEHEFFER: I’ll call him or I’ll call everybody in the Prosecutor’s office until I find the witness.”
Bradley’s criminal record included the following:
1. 5-23-45: violation of fire ordinance. Fined $32.70.
2. 8-17-45: burglary and theft. Served three years and ninety days.
3. 2-25-49: disorderly conduct. Discharged the following day.
4. 12-11-49: disorderly conduct and contributing to the delinquency of a minor.
*1525. 7-29-52: theft of mail. Sentenced to two years.
6. 10-22-52: possession of stolen mail and forgery. Sentenced to two years.
7. 12-6-54: storehouse breaking. Sentenced to two years.
8. 10-4-58: grand larceny.
9. 5-6-59: storehouse breaking. Sentenced to one year.
10. 1-7-63: “inv. c/w cutting.”
11. 5-22-63: First degree murder. Sentenced to death.
12. 12-11-81: carrying a concealed weapon.
13. 3-12-82: having a weapon while under a disability. Sentenced to one and one-half to five years.
In addition, Bradley’s record included the dates of Bradley’s transfers from one institution to another. Each listing repeats the original charge. For example, first degree murder is relisted on 7-19-65, the date of Bradley’s transfer to a Lima hospital, and possession of stolen mail and forgery are relisted on 8-29-53 and 1-12-54. The record is difficult to understand and the transfer dates could easily be mistaken for new charges.