State v. Agee, 2016 Ohio 7183

Background

Defendant Kevin Agee Jr. drove a Dodge Durango while passenger Aubrey Toney fired multiple .308 rounds into a burgundy Cadillac, killing Thomas Repchic and injuring Jacqueline Repchic; Agee was convicted of murder, attempted murder, and related firearm specifications.
Police found an unfired .308 cartridge at a house associated with Agee; BCI testimony linked extractor marks on that cartridge to a fired cartridge from the scene; other firearms, ammunition, vests, and drugs were seized at the residence.
Agee gave a videotaped statement after waiving Miranda rights; his grandmother and mother were present during parts of the interrogation and urged him to speak to police.
On direct appeal the court remanded to merge certain counts; Agee later filed an amended petition for postconviction relief alleging (inter alia) ineffective assistance for failure to obtain neurological experts for traumatic brain injury (TBI), involuntary confession due to family manipulation, evidentiary discrepancies about a cartridge photograph and the admitted cartridge, and trial errors from displaying weapons and handcuffing a witness.
The trial court denied the amended petition without an evidentiary hearing; the appellate court affirmed, finding (1) res judicata barred several claims or petitioner failed to present cogent evidence dehors the record, and (2) the record did not show prejudice from counsel’s alleged failures nor that the confession was involuntary.

Issues

Issue	Agee's Argument	State's Argument	Held
1) Counsel ineffective for not obtaining neuro/neurology experts about TBI	Expert testing would have shown cognitive deficits that vitiated valid waiver of Miranda and explained unwitting participation	Defense had a mitigation psychologist; record shows Agee understood and responded coherently in interrogation; no operative facts showing expert would change outcome	Overruled — failed to overcome res judicata or show sufficient evidence dehors the record or prejudice under Strickland/Mason
2) Confession involuntary due to police using family to induce statement	Detectives manipulated mother/grandmother to promise leniency and encourage confession; TBI made waiver involuntary	Even if family urged confession, promises of help/leniency alone do not automatically render confession involuntary; record shows Agee was aware of consequences and processed information	Overruled — no sufficient operative facts showing totality-of-circumstances involuntariness; detective testimony contradicted affidavit; suggestion of leniency not dispositive
3) Evidentiary discrepancy: photograph (Exh.103) vs actual cartridge (Exh.113)	Photo and actual cartridge differ; counsel should have challenged or sought mistrial — this was a key link to the weapon	Alleged visual differences likely photographic artifacts; issue could have been raised on direct appeal (res judicata); no proof that items were not the same	Overruled — barred by res judicata and petitioner failed to produce sufficient new evidence proving mismatch
4) Trial error: display of multiple guns, demonstrative .308, and handcuffing of witness	Display and demonstrative rifle unduly prejudiced jury; witness handcuffed in front of jury was inherently prejudicial	Demonstrative rifle was relevant to rebut defense about noticing a large rifle; seized weapons and drugs rebutted innocence and corroborated involvement; handcuffing addressed courtroom safety/evasive conduct and jury was instructed	Overruled — evidentiary rulings within discretion; items were relevant and probative; jury instructed about demonstrative evidence and not to hold restraint against defendant; constitutional challenge was or could have been raised on direct appeal

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
Lockhart v. Fretwell, 506 U.S. 364 (prejudice requirement and effect on trial fairness)
State v. Mason, 82 Ohio St.3d 144 (standard for funding expert assistance for indigent defendant)
Powell v. Collins, 332 F.3d 376 (6th Cir.) (appointing neurology expert where psychologist admitted she could not perform necessary testing)
State v. Calhoun, 86 Ohio St.3d 279 (postconviction relief statutory framework and affidavit credibility)
State v. Steffen, 70 Ohio St.3d 399 (postconviction relief is collateral civil action; rights are statutory)
State v. Perry, 10 Ohio St.2d 175 (res judicata bars issues that could have been raised on direct appeal)