State v. McCallum, 2021 Ohio 2938

Background

Defendant E'lorna McCallum shot and killed Latasha Dailey on May 23, 2018; Dailey had been in a prior intimate relationship with McCallum's sister, Dericka, and had made threats and engaged in physical conduct reported to police the day before and the night of the killing.
Police responded to multiple 911 calls; officers left after advising parties to keep away from each other; shortly thereafter Dailey called 911 reporting McCallum had a gun and was chasing her; officers arrived and found McCallum with a revolver (four spent, one live round) and Dailey mortally wounded.
Indictment charged aggravated murder (Count 1), murder (Count 2), and felony murder; the state sought three-year firearm specifications; McCallum admitted shooting but claimed self-defense and/or defense of another and/or acted under serious provocation.
Jury acquitted McCallum of aggravated murder and murder but convicted her of voluntary manslaughter as a lesser-included offense (attached to Count 2) and of the firearm specification; trial court sentenced her to 10 years (manslaughter) plus 3 years (firearm), total 13 years.
On appeal McCallum raised six assignments of error: alleged inconsistent verdicts, denial of funds for a battered-woman-syndrome expert, refusal to instruct on self-defense/defense of another, exclusion of evidence about police failure to perform a lethality screen, ineffective assistance of counsel, and sentencing errors.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McCallum)	Held
1) Inconsistent verdicts	Multiple counts may yield different outcomes; verdicts need not be consistent across independent counts	Jury verdicts were inconsistent because voluntary manslaughter was acquitted as a lesser on Count 1 but convicted as a lesser on Count 2 based on the same conduct	Convictions on separate counts are independent; inconsistency across counts is not reversible error — affirmed
2) Denial of funds for battered-woman-syndrome expert	No particularized showing that expert assistance was reasonably likely to aid the defense	Expert was necessary to explain sister's battered-woman syndrome and justify defense-of-another theory	Denial was not an abuse of discretion because defendant failed to make the required particularized showing of need — affirmed
3) Refusal to instruct on self-defense/defense of another	Instruction unnecessary because record did not support elements of the defenses	Evidence (threats, prior violence) warranted self-defense/defense-of-another instructions	Trial court did not abuse discretion: defendant initiated the fatal street confrontation and there was no evidence of imminent danger or necessity of deadly force — instruction properly refused
4) Exclusion of evidence re: police failure to perform lethality screen	Evidence showed police protocol failures that would corroborate claim of imminent danger	Lack of lethality screening was relevant to the defensive theory and to explain police inaction	Trial court properly excluded as cumulative, tangential, and more likely to confuse or mislead the jury than to assist factfinding — affirmed
5) Ineffective assistance of counsel (various acts)	Counsel failed to deliver opening-statement promises, did not properly subpoena sister, and did not object to a limiting jury instruction	Strategic choices (opening statements, subpoena efforts, no objection) were reasonable; no prejudice shown	Counsel's actions fell within reasonable professional assistance and did not prejudice outcome — Strickland test not met, claim rejected
6) Sentencing challenge	Court made unsupported findings and imposed an excessive sentence contrary to R.C. 2929.11–.12	Sentence factors were misapplied and weight assigned was unreasonable	Sentence within statutory range and supported by record; appellate court defers to trial court's weighing of factors — affirmed

Key Cases Cited

Ake v. Oklahoma, 470 U.S. 68 (U.S. 1985) (due process may require state-provided expert assistance to an indigent defendant when necessary to present an adequate defense)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel: deficient performance and prejudice)
State v. Mason, 82 Ohio St.3d 144 (Ohio 1998) (applying Ake; particularized showing required for expert assistance)
State v. Goff, 128 Ohio St.3d 169 (Ohio 2010) (expert testimony on battered-woman syndrome is admissible to explain the perception-of-danger element of self-defense)
State v. Koss, 49 Ohio St.3d 213 (Ohio 1990) (battered-woman syndrome testimony can be relevant to defendant's state of mind for self-defense)
State v. Joy, 74 Ohio St.3d 178 (Ohio 1995) (trial court must give all instructions that are relevant and necessary for jury to weigh evidence)
State v. Wolons, 44 Ohio St.3d 64 (Ohio 1989) (appellate review of jury instruction issues and abuse-of-discretion standard)
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585 (Ohio 1991) (no instruction where no evidence supports issue)
State v. DeMarco, 31 Ohio St.3d 191 (Ohio 1987) (cumulative error doctrine: cumulative harmless errors may still require reversal if they deny a fair trial)
Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of clear and convincing evidence)