*1 a means to myth, concept. or a mere It is access legend, not an urban access unjustly in this case denies majority’s decision government. action. I challenge dissent. seeking governmental Ohioan Ullmann, pro E. Victoria se. General, DeWine, Ryan and L. and L. Attorney Tiffany Carwile
Michael General, Richardson, Secretary for of State A. appellees Assistant Jon Attorneys Kasich, DeWine, and Husted, Attorney Michael Governor John Auditor General of State David Yost. Feasel; Cole, L.L.P., Cole, and Patton Douglas Squire R. and Joshua M.
Organ JobsOhio, L.L.P., Beverage JobsOhio Boggs, Lasley, appellees and Aneca E. System, and John Minor. Appellant. Appellee, McKelton, Ohio,
The State
murder follow, we of law reject proposition each Allen. For reasons (“Missy”) the convictions and death sentence. affirm BACKGROUND I. AND PROCEDURAL FACTUAL Background A. Pretrial Allen, murder of with the charged February the state 2903.01(A). The Evans, 2903.02(B), murder of R.C. and the aggravated R.C. 2941.145, two R.C. specification, a firearm aggravated-murder charge carried 2929.04(A)(3) (A)(8) detection) specifications, R.C. (escaping death (killing in criminal prevent testimony proceeding). *2 assault, McKelton was also two charged with counts of felonious R.C.
2903.11(A)(1), Allen, 2919.25(A); counts of against and two domestic violence R.C. 2927.01(B); corpse, abuse of gross aggravated robbery her R.C. and aggravated arson, 2911.01(A)(3) 2909.02(A)(2); evidence, R.C. and with tampering R.C. 2921.12(A)(1); case, 2921.04(B). in intimidating and witness a criminal R.C. state, court, The with leave the aggravated-robbery charge dismissed before trial. began A in October 2010.
B. The State’s Case-in-Chief Missy Domestic Abuse Allen Allen, a Missy attorney represented criminal-defense who had Calvin McKelton, began dating him in By 2006 or 2007. McKelton was living with nieces, Z.D., Allen and her T.W. and Allen’s in County. home Butler T.W., teenager, then a testified that she had physically witnessed violent arguments between and living together. McKelton Allen while were One Allen, time she top found McKelton on choking During her. another alterca- ción, Allen to call police, phone asked T.W. but took the from T.W. and it threw on a counter. things bad,” T.W. said that after to get “start[ed] say Allen told anything her not to happened about what her house. A computer, document on Allen’s home September created on
chronicled The first-person abuse. narrative an incident during described which hit, kicked, twice, and pushed Allen and then her choked once with face, such force that nearly injuries she lost consciousness. She listed to her side, back, right right leg, and head as eyes as well blood clots in her due to “the of air.” loss She was afraid because McKelton had her and her threatened niece. indicated She that she intended to prosecute request and to a temporary protection high order and a bond. A notebook found Allen’s home office contained handwritten notes that
repeatedly Mam, mentioned the name Allen’s, “Calvin.” Charia a friend of handwriting testified was Allen Allen’s. described McKelton’s grabbing neck, her hitting lip, threatening her to burn eye cigarette, her with and pushing her down tried to choke.” Allen also calling described for her niece “b/c call Allen, 9-1-1. An apology undated note written McKelton’s handwrit- * * * stated: “I I ing, baby, Love u don’t want to hurt u I again. ever want say sorry you 2 God for what and Ive done.” May of the that on Z.D. old at the time crime. She testified years was
9}{¶ from of the screaming and Allen the direction yelling she heard McKelton home, Kelly dispatched Smith to Allen’s She called 9-1-1. Officer was garage. Z.D. said that Allen were when she arrived. officer gone but McKelton and while “extreme McKelton returned visibly acting with fear.” shaking name door” Z.D.’s yelling was still at the house. He “burst through Smith Allen called the out of house.” then and told Smith “to bounce ass [her] Allen in the Z.D. testified that hospital. house and told the officer she was come Z.D. 9-1-1 had not told her was “kind mad” that had called later she garage. into the told her She argument Allen several accounts of McKelton. gave essentially anything, her “if that McKelton had not harmed she
police in the something him” over by shoving tripped him. She said she provoked *3 or that she fallen over a lawn mower hospital personnel She told had garage. chair, bike, had fallen a and told a services that she over representative children’s step. that had fallen down a physical therapist told her she in well to screws her ankle as injury required surgery place four Allen’s {¶ 11} Mam, friends, Allen Luther and as to two Shaunda physical therapy. According detached,” and “distant” after depressed,” “somewhat “increasingly became around, it Luther and hard for Mam and always was was injury. McKelton drive, she she not Allen. Because could meaningful have conversations with court. And medical and to appointments on to take her to depended McKelton money to could not make Allen was because she depressed Luther said that 25, July of 2008. account was overdrawn as support herself. Her bank concern about expressed that Mam and Luther both testified Allen {¶ 12} her through phone that “went Allen told Mam jealousy. told also always argument.” it ended in an She frequently, and text record and man had her flowers if he knew another sent that McKelton would kill her Mam his friend. thought slept or if he she had with She 2008, she thought pregnant. Allen Mam she was July told her to forever baby a would tie having
told her friend that she feared him. telling kill if she had an abortion without that McKelton would her but month. miscarriage a later that Allen suffered Missy of Allen The Murder side 2008, found in woods on the east a woman was dead July On wrapped liner was resembling A shower-curtain piece plastic
Cincinnati. body. drugs lay near her of counterfeit thighs, bag around the victim’s D.O., County, per- Gorniak, for Hamilton deputy then a coroner Jan the death as a homicide July on 2008. She classified autopsy formed death, caused Gorniak by strangulation. precise could determine time but she that the for body estimated had been the woods one one-half to days. autopsy, police three After the as identified the woman Allen. Physical
a. evidence then Police searched Allen’s home. The front door was locked activated, security system was but mark inside found a burn in the master bedroom and gasoline several items later tested positive gasoline components. samples drywall appeared Officers collected have blood them; samples on later profile were confirmed have a DNA with consistent profile. Allen’s DNA Two items—a cigarette garage, butt and the door to the which had a smear that appeared profile be blood—had a DNA consistent profile. McKelton’s DNA Valuable including purse plain view, Allen’s apparently items— —were Police a long piece
undisturbed. found of weed-eater cord on the kitchen floor. hallway There a shower curtain on sign was floor but of a no shower-curtain liner. Allen’s car village was found of Golf shortly Manor after midnight
on July 2008. It locked and did not to have appear been with. tampered Cell-phone records indicated that outgoing the last call on phone Allen’s was at 8:27 p.m. July phone on to a number used McKelton. Her laptop computer was last p.m. day. used around 4:00 Investigation
b. of McKelton July On McKelton came to the Fairfield Police Department. After *4 he signed a Miranda waiver, he asked whether there for any were warrants him. There were not. did McKelton not answer questions. other Officers noted marks) small abrasions (possibly burn on They photographed McKelton’s hands. him and fingerprints, took DNA and samples, fingernail The DNA scrapings. not samples were consistent with DNA fingernails. male collected from Allen’s records, Based on céll-phone police believed that McKelton had been {¶ 20} near house on night July Allen’s and the morning July 26. He made repeated calls that off Sprint bounced tower to cell-phone closest Allen’s house p.m. between 9:02 and 10:52 on p.m. July 25. McKelton’s next calls towers, bounced several off but he near Sprint was tower to Allen’s closest again house between 8:01 and July a.m. 9:17 a.m. on 26. Later, police learned of a possible eyewitness to murder: Allen’s friend, Ridley, Evans’s, Evans. Andre a friend of that testified
Evans him had told about Allen’s death a few days body after her was found. Evans that Ridley told he had been at Allen’s when house he her and heard choking Evans in and saw McKelton
McKelton in another room. walked fighting Allen, up, wake she did not. telling McKelton then smacked her to but Allen. that robbery.” Ridley as a Evans told he staging The men “started scene car, it in the and up body put Allen’s and McKelton wrapped and McKelton had dumped The two drove to a wooded area and fire to the house. men set it. some beside body. drugs McKelton threw him that that McKelton assured he Ridley, Evans said According Evans charged only corpse. reported be with abuse of also
could (worth $20,000 $40,000). Ridley him ounces of cocaine did gave McKelton later, after was killed. police with until months Evans speak not night that she had with McKelton the Audrey Dumas testified been night with one said that she went out McKelton weekend Allen died. Dumas BMW, up p.m. 2008. her around 11:15 in a black July picked late McKelton They went to a club until 2:15 or 2:30 a.m. recognized which she as Allen’s car. friends. brought then drove around downtown with McKelton’s and home around 3:30 or 4:00 a.m. her that, at 10:52 After July p.m. was near Allen’s house he On cell-phone or calls—which bounced off different towers—
made received seven Dumas’s at 2:25 a.m. vicinity a call off a tower in the house on before bounced July 26. Evans
3. Murder Mick may witnessed Alen’s murder until Police did not learn that Evans have subpoena Luke obtained a Jenny months after Alen’s death. Detective seven him. trying DNA to locate began Evans’s Evans, sister, telephoned Crystal Luke Evans’s February On him wanted to talk to about Alen’s death. asked her tell Evans that police Crystal dating September had been McKelton since
Luke did realize Crystal easily testified that McKelton living and that he was with her. Crystal’s have her Luke. McKelton was could overheard conversation message. Evans to Luke’s relay home when she called leading found bottom of into body steps March Evans’s at the On Neighborhood residents casings nearby. .40-caliber were city park. Four shell gunshots park four five near police had heard reported February p.m. midnight 9:00 on between *5 County, per- M.D., a coroner for Hamilton deputy Gretel Stephens,
{¶ 28} her that Evans had been dead day. gave opinion an next autopsy formed She by He killed a days. two or three had been possibly more than hours and for had head on the left side. The shot been to the back of the single gunshot wound Stephens even with contact. “very, very range possibly at close” or fired with fragments recovered bullet that were consistent a .40-caliber Smith & Wesson semiautomatic. Sigma Series However, never Police found the murder the state weapon. did niece, T.W., teenaged
introduce from Allen’s a time about when she saw McKelton she gun, which said looked like .40-caliber automatic. a call Cell-phone placed records indicated Evans last at 9:55 p.m. at on p.m. February and last sent text 10:01 27. message According to Crystal, “[s]omebody not trust so him” anyone, Evans did close to must have shot him. provided an alibi for on Crystal night February McKelton police She told that he had arrived home before but at p.m. 9:00 may
admitted that it later. got home, have been She said after McKelton buy candy. she went out to testified that She when she returned home around him, 10:00 p.m., gone. Crystal McKelton was called and he he had gone said get cigarettes. McKelton in with a pack cigarettes walked five about minutes stayed cross-examination, later and the night.- two rest of the On Crystal said that she had p.m. called at 9:22 and he arrived home for night a few minutes later. Cell-phone records indicate that from 9:10 to 9:51 p.m. February on McKelton, Adams, several calls made back forth among were and Brian “Red” McKelton’s, Dumas, old friend of Audrey and girlfriend. McKelton’s former times, Dumas then called McKelton’s number two more than dozen at ending 11:37 p.m. Dumas testified that at 11:01 p.m., parked Crystal’s she was outside inside, apartment, believed McKelton was and tried to time disrupt together their Later, sending messages a.m., text him to telling beginning come out. 2:32 McKelton called Dumas’s Red’s multiple Crystal numbers times. testified that she recall did not McKelton on waking up hearing phone during night. murder, Crystal weeks, After Evans’s avoided McKelton for several but
they In resumed their June relationship. gave she birth to his son. She regularly trial, jail visited McKelton in as he awaited exchanged frequent letters, phone calls and letters. he reminded her that he was with her the night Evans died and her to at” stop “com[ing] told him like she did not “know for was at explained phone [sure he] wit[h home He her].” records p.m. showed that Evans died at Crystal, 10:00 and told home asleep “[W]e were at ten.”
4. McKelton’s Admissions witnesses Multiple implicated testified himself in Sneed, deaths of Allen and Evans. Three them —Marcus Bryant, Charles Lemuel charged Johnson —were informants with other offenses. *6 Sneed, McKelton, who had in the grown up neighborhood same as
{¶ 35} testified that he had run into McKelton at a him club and confronted about Allen’s death. McKelton told that he choked Allen “a during Sneed heated but that he “didn’t mean to.” argument” something McKelton mentioned about Allen’s and about her him with pregnancy threatening knowledge her of his crimes. McKelton also told that “a him” help[ed] get Sneed friend rid of Allen’s
body. Sneed confronted McKelton after rumors again hearing about Evans’s kill death. McKelton stated that he had had to Evans because Evans “was the that link him only guy could to the murder.” Sneed did not this report information to until police drug-conspiracy he was later arrested on federal charges. incarceration, Bryant, during who had met McKelton a 2003 testified
that McKelton had him told about the deaths of Allen and Evans. McKelton said that he had with an attorney during argument been involved and choked her whether she pregnant baby. about someone else’s McKelton also Evans, Bryant Bryant reminded about what had to which happened interpreted a Bryant as threat. did not come forward with this information until he was charges. incarcerated on new Johnson testified that McKelton had confessed to both murders while Johnson, discussing drug-related According were business. money
needed and was to convince him to let him take care of some trying for him. in which he had eliminated witnesses McKelton described situations in past. witnesses He said he had been with Evans’s sister when He looking explained detective called for Evans discuss Allen’s death. murder, Evans link” could him to Allen’s so he had been “weak who connect kill him him. But did not report had to before the detective found Johnson awaiting sentencing drug conversation until he was for a federal offense. Nix, and Michael two acquaintances The state also called Gerald Wilson hearing responsibility of McKelton’s who had McKelton admit reported Allen’s death. trial, Prior to about a conversation that he had police Wilson told Howell April May, night,
had with Michael Howell and McKelton One seat, ride; passenger texting Wilson a McKelton was the front someone. gave commented, “Man, If giving my nobody. that bitch ain’t shit to she did, get away I’m I with it.” Howell gonna Margaret choke her like did that Wilson “ain’t responded warned McKelton to watch what he said. McKelton trial, did, If Mick did.” At Wilson gonna nothing. gonna up do he he end like murder, Allen’s so the nothing recanted and insisted he knew about jury. for the original police of his statement prosecutor played recording trial, testify Gregory for the state at so Detective David Nix refused prior by wrongdo- testified about his statements under the doctrine of forfeiture Allen, According Gregory, Nix had asked McKelton about and McKelton ing. hand, out of and he didn’t mean to do it.” also things “got Gregory said Evans, McKelton, Red, testified that Nix said that and Lamar Simmons were *7 p.m. February his house around 11:00 on when he came home. Nix said that the men left about an hour later. He never saw Evans again. Evans, Crystal, Sheridan the mother of Evans and testified that
{¶ 42} body to her less than a week after spoke McKelton Allen’s found. He “was Missy hard” and said that “he loved and it a crying very was mistake.” minutes, told that he had “tried to revive for 10 McKelton Sheridan but [Allen] bring couldn’t her back.” Sheridan also' testified that McKelton and [he] Red speak came to with her after she met with homicide detectives in March 2009. conversation, the Sheridan mentioned rumors that McKelton had During killed said, “I Evans. McKelton denied the rumors but don’t want to see else nothing your to none of kids.” happen
C. The Defense Case Defense counsel did not present any during phase witnesses the first However, exhibits, the trial. introduced almost 30 including additional of a photos, transcript police Crystal, crime-scene interview with and some phone additional records. Sentencing
D. Verdict jury convicted McKelton on all counts and specifications except of a trial merged specifica- Count intimidation witness. The court the death 2929.04(A)(8), tions before sentencing, proceed and the state elected to on R.C. a in murdering prevent witness to a criminal After the proceeding. recommendation, mitigation phase and the the trial court McKel- sentenced ton to aggravated death for the murder of Evans. The court him also sentenced in years prison to life for Allen’s murder and to a total of years for the remaining convictions. appeals, raising McKelton now of law. propositions We address his
propositions analysis. out of order for ease of
II. ANALYSIS A. Pretrial Issues Proposition 1. Nondisclosure of Witnesses: of Law No. law, In his second proposition challenges prosecutor’s
failure to disclose witness until trial eight night began. names before his hearing
a. The nondisclosure nondisclosure, The state a originally filed certification of pursuant 16(D), defense, request Crim.R. 23 witness names. After a from the referred the matter judge judge to another to hold an in camera hearing. By the time the took hearing place, prosecutor witnesses, had disclosed all eight but seven of whom testify would trial. At the hearing, prosecutor argued subject disclosure harm, would the witnesses or a third party potential coercion, or intimidation. He offered four pieces evidence support. First, McKelton had been convicted of intimidating witness Second, in jailhouse Crystal, letter to that they said should post public Third, witness names when place they got them. in a call phone arrest, shortly after McKelton’s an associate of him worry McKelton’s told not to because they would “John Brown this prosecutor case.” The explained reference: a Cincinnati homicide defendant named John Brown acquit- had been ted when him every against witness disappeared recanted on the eve of his Fourth, trial. a witness whose name had been disclosed, Nix, Michael *8 recently been shot at shortly after a known associate of McKelton’s had asked Nix about McKelton’s case. The judge asked what motivated the state’s heightened concern for
{¶ 49} these eight prosecutor explained witnesses. The two witnesses “were extremely afraid to have their names disclosed” and likely agreed would not have addition, testify witnesses, to absent nondisclosure. three who were then incarcerated, were fearful for themselves and prosecutor their families. The said nothing specific about two witnesses. judge upheld the nondisclosure as a proper prosecutorial exercise of
discretion. The prosecutor gave the defense the undisclosed witnesses’ names and all but of evening one the statements on the before trial. One statement was provided until the next morning, shortly began. before the trial 16(D) (F)
b. Crim.R. As an exception general requiring the rule the disclosure of witness trial, prior names a prosecutor may seek relief from disclosure under Crim.R. 16(D)(1) “reasonable, if the prosecutor grounds has articulable to believe that witness, victim, disclosure will compromise safety or third or party, subject them to intimidation or coercion.” grounds Such include “the nature of case, specific course of parties, prior conduct one or more threats or * * * intimidation, tampering any instances witness other relevant 16(D). information.” Crim.R. motion, Upon defendant’s an in camera must conducted hearing be 16(F).
seven
trial.
If
days prior to
Crim.R.
the trial court finds an abuse of
discretion,
immediately
must
disclose the
prosecutor
then the
prosecutorial
16(F). Otherwise,
Note,
the material must be
material. 2010 Staff
Crim.R.
16(F)(5).
trial.”
We review a
“no later than commencement of
Crim.R.
disclosed
ex
discovery
on
matters for an abuse
discretion. State
rulings
lower court’s
313,
prosecutorial case and were not to each only generally specific were about McKelton and the nondisclosure for the reasons specifically contemplates witness. But Crim.R. McKelton, his against past cited here: the nature of the case prosecutor witness, that he had intimidating sought conviction for and evidence intimidate witnesses this case. Second, argues prosecutor rely that the could not on the they knowing feared McKelton’s representations
undisclosed witnesses’ witness, testify. prosecutor, would McKelton contends that the not the is for to a witness. While the rules vest responsible assessing possible danger determination, a prosecutor responsibility making the nondisclosure account prosecutor précluded taking impressions is not from a witness’s own into A deciding identity. when whether to disclose that witness’s witness’s fear of is to the disclosure reprisal question might compromise relevant whether safety. witness’s Third, McKelton that the acted prosecutor arbitrarily because to, than, damaging
the nondisclosed witnesses offered similar but less require other witnesses whose names were disclosed. Crim.R. 16 does not disclose, explain choosing request state to its reasons for and McKelton did not such an explanation. *9 Finally, says eight McKelton that the undisclosed witness names should
{¶ 56} been at trial. days ignores language have disclosed least seven before He the 16(F), which that a trial court plainly Crim.R. states when finds no abuse of decision, discretion in a materials no prosecutor’s nondisclosure must be disclosed later than the commencement of trial. sum, by In the trial court did not its discretion affirming abuse
{¶ 57} prosecutorial certification of nondisclosure as a exercise of discretion. proper challenges c. Constitutional to late disclosure McKelton also that late of these witnesses’ names argues disclosure violated several of his constitutional rights. First, says he that the late disclosure violated the Confrontation Clause
of the to A defendant’s confrontation Sixth Amendment the U.S. Constitution.
271
v.
rights may
“legitimately
by
discovery.
be
constrained”
rules
(1986).
Williams,
16, 18,
already rejected
23 Ohio St.3d
to due
fair trial. The Due Process Clause of the Fourteenth
Amendment
to the
from
prohibits prosecutors
concealing
U.S. Constitution
defendant,
evidence favorable to a
but
is no
constitutional
general
right
“[t]here
545, 559,
discovery
to
a criminal case.”
v.
Bursey,
U.S.
Weatherford
(1977).
837,
right deprived attorneys effective assistance of counsel because his his defense. To on this adequate opportunity investigate prepare prevail claim, performance he must show both that the nondisclosure caused counsel’s prejudice. Washington, be deficient and that he suffered Strickland v. 466 U.S. 668, 688, 694, For reasons explained S.Ct. 80 L.Ed.2d 1st, 15th, law, to the of McKelton has not met his response propositions and 16th burden. reasons, law 2. reject proposition For these we No. Proposition of Law No. 1 Withdrawal of Counsel Continuances: law, trial court proposition argues his first repre-
erred counsel’s to withdraw from denying court-appointed request sentation and his motion to remove those counsel. He claims corresponding compounded by the error in counsel’s to withdraw “was refusing request court’s failure to for a continuance” and grant repeated requests trial, these errors violated his to due a fair and effective assistance rights process, *10 of counsel.
a. of counsel Withdrawal Gregory should have removed John claims that the trial court Cook, attorneys, as counsel. Melynda court-appointed Howard and his two
(1) background Factual Richard At McKelton’s Initially, attorney Goldberg. McKelton retained informed the court that he lacked February Goldberg arraignment that explained cases. He also McKelton had become experience trying capital Sup.R. counsel under former 105 Ohio appoint and asked the court to indigent counsel, if stay on” as Goldberg sought “permission St.3d CXLV.1 also object. The trial Howard as lead counsel and Cook judge appointed state did not unsure “what the status of [Goldberg’s] partic- as co-counsel because he was would be. ipation” Howard, and Cook moved for leave to September Goldberg, On counsel,
withdraw, of new and for a continuance so new appointment for the later, days could for trial. Two McKelton filed a handwritten prepare counsel all of irreconcilable differ- asking motion the “court to remove counsel because misconduct, interest, ences, lawyer misrepresentation, personal conflict of conflict lack of communication.” complete to withdraw because of a conflict of interest. Goldberg permitted only attorney But Cook and Howard cited “a breakdown client relation- request. explained as the basis for their Howard that McKelton did not ship” longer trust his counsel and would no appointed cooperate preparing defense. tried to him into judge pressure McKelton told the counsel had
accepting plea bargain. attorneys prosecutor He claimed that his and the accept to “coerce” him to offer and that Cook was “out- “conspired” plea raged”- making a racist comment—-when he refused. McKelton also said —even him, effectively adequately Howard and Cook had failed to communicate with trial, well, prepare money necessary experts. -use his or hire the defense withdraw, The trial denied Howard and motion to judge finding Cook’s competent prepared “diligently.” judge were and had the case rejection reasoned communication had broken down due McKelton’s counsel’s advice and refusal to legal cooperate. CXLV, Sup.R.
1. McKelton claims that
trial court violated former
Ohio St.3d
lawyers
appointing
though
Goldberg.
appointed
two
even
he had retained
But counsel were
Goldberg’s request,
advantage
and McKelton cannot take
error that he invited. State
421,
273
(2) Analysis
We
a lower
review
court’s decisions about whether to
and
discharge
{¶ 70}
replace
Williams,
counsel for an
of
v.
court-appointed
abuse
discretion. State
99
¶
493,
dismissing
attorney-client
Howard and Cook.
claims that
he
relation
ship
down
completely broke
when counsel
him to
encouraged
accept
plea
bargain. But disagreements
disagreement
as
over the
of a plea
merits
—such
* * *
attorney
approach
offer—“ ‘between the
and client over trial
tactics
do
”
Ketterer,
not warrant a
111
substitution
counsel.’
State v.
Ohio St.3d
¶
necessary
prepare
approved
his defense. The trial court
experts
funding
*
* *
mitigation
“an
a mental
if
investigator
specialist,
professional,
and
health
* *
*
a forensic
if
Counsel
appropriate,
expert,
appropriate.”
apparently
only
necessarily
hired
But that
that counsel were
investigator.
prove
does
trial,
unprepared.
a few
represented by
Until
weeks before
McKelton was
three
than
hours on
attorneys.
investigator
And his
worked more
the case.
was a
experts
Defense counsel’s decision whether to hire additional
matter of
strategy, and McKelton cannot establish
unreasonable on
strategy
withdraw because were afraid of counsel’s only motion to withdraw on the during hearing concern occurred The McKelton. to threats made reference prosecutor’s to the response threatened his counsel. had not clarified that McKelton promptly prosecutor case. of counsel the substitution Thus, require did not fear Howard and Cook. discharge reasonably trial court declined b. Continuances requests of his continuance that the trial court’s denial To the extent his defense. rights prejudiced violated his constitutional *12 assistance right to the effective his constitutional argument implicates test, that counsel’s showing both counsel, McKelton must meet Strickland prejudice. and that he suffered was deficient performance a continuance granted that court should have First, says McKelton {¶ 77} The defense’s continuance 17, 2010, withdrew. Goldberg when September on counsel, who would of new.defense appointment on the predicated motion was unnecessary trial. A continuance was for prepare additional time need “known for they counsel and had remained as defense Howard and Cook because Two months likely that to withdraw. Goldberg amount of time” significant of McKel- trial, Goldberg’s representation that defense counsel indicated before Howard warned judge previously of interest. The ton create conflict might and, Goldberg to trial without ready go would need to be they and Cook Howard were to do so. Neither they prepared he found September on as a result of prepare additional time to indicated that needed nor Cook perform- how deficient explain does not withdrawal. McKelton Goldberg’s withdrawal, claim under Strick- undermining any Goldberg’s resulted from ance continuance trial court’s denial of the we find no error Accordingly, land. 17. request September on granted trial court should have Second, says that McKelton to cross-examine the investigate prepare
continuance to allow the defense authors began. shortly who were disclosed before eight state witnesses defense to allow further clear that routine continuances of Crim.R.16 made destroy protective purpose “the of nondisclosed witnesses would investigation 16(F). reason, Notes, For this Crim.R. 2010 Staff process.” nondisclosure] [the trial dates would occur that continuances of anticipated Commission the “[Rules] in limited circumstances.” Id. only have aided his that more time would generally asserts of those limited
defense, qualifies this case as one explain why he does not but were unpre- that defense counsel record does not indicate circumstances. The cross-examination; of the late-disclosed they cross-examined each pared provided trial and even used some statements —as who testified at witnesses
275 the state —to impeach them. And McKelton offers no indication of what informa- tion investigation further would yielded have or how counsel would have used that Keith, information. See State v. 536-537, (1997) 79 Ohio St.3d N.E.2d (claims that require evidence outside the record are not appropriately considered on appeal). direct Thus, McKelton has failed to establish an abuse of discretion or a
violation of his constitutional rights. reasons, For these reject we proposition of law No. 1. Proposition Voir Dire: of Law No. 3 proposition law No. the trial court right
violated his to an impartial jury by denying individual, his motion for sequestered voir dire. He further claims that defense counsel did not have opportunity sufficient to question the venire. “The manner in which voir dire is to be conducted lies within the sound
discretion
Lorraine,
of the trial judge.” State v.
414, 418,
(1993). However,
N.E.2d 212
because an adequate voir dire is “part of the
guarantee of a
right
Illinois,
defendant’s
to an impartial jury,” Morgan v.
“
U.S.
(1992),
S.Ct.
a.
voir dire
“There is no requirement
that voir dire in a capital
{¶
case
84}
must be
Fears,
conducted in sequestration.”
329, 338,
State v.
715 N.E.2d
(1999).
Leonard,
In
State v.
{¶ dire was 86} because entire venire was “[t]he made aware of pretrial publicity.” The trial upon about this based anything knows “anybody here [ ] asked whether judge and three affirmatively, jurors responded prospective case.” Five of the publicity coverage. The press innocence based on McKelton’s some doubt about indicated and that are not evidence reports that news to the venire explained prosecutor jurors were when these juror responded And no not accurate. they always are fact, In defense they had read. anything aside could not set asked whether in a news account. an error recent even described counsel venire tainted the entire questioning that this line of guilt. coverage implied juror press that some every potential by informing being to “the effect of due necessarily prejudiced is not But an entire venire Carter, 72 v. veniremen.” State expressed by prior opinions influenced that presume decline to We Ohio St.3d jurors simply prospective tainted because the pool McKelton’s entire addition, not point In McKelton does existed. negative publicity learned publicity. the voir dire on actually prejudiced by that the venire was any evidence jurors circumstances, any of the seated there is no indication these Under against were biased McKelton. about domestic objects prosecutor’s questions to the McKelton also object prosecutor’s did not to the voir dire. McKelton during group
violence
influenced the entire venire.
they unfairly
says
but he now
questions,
for the prosecu-
it was reasonable
charges,
domestic-violence
light
pending
of the
* * * with acts of domestic
jurors’ “history
prospective
tor to
about the
inquire
to the
ability to
fair consideration
determining
give
a means of
their
violence as
No.
Collymore,
Cuyahoga
8th Dist.
arise at trial.” State
issues
would
that an
81594,
hearing, requested defense counsel a produce trial to judge agreed 2-page questionnaire. its usual requested end, jury question- proposals. “in parties’ between” questionnaire penalty. toward the death naires did not address attitudes
277
Trial courts have discretion to
the content of jury
determine
question-
Davie,
(1997).
311, 317,
Here,
naires. See State v.
Ohio
80
St.3d
{¶ voir pretrial conduct dire. a During hearing, defense counsel that it warned take two might days jury. to select The judge responded, “It take will life whatever and time it takes.” On the that voir dire morning began, the venire, told the judge believe we’ll by “[W]e have selected the close of Midafternoon, today.” business defense jurors counsel thanked the prospective late, “I explained, know I’m to getting going try up, it’s to but wrap this * * I a couple things Later, have that I want other to talk about *.” after notes, defense counsel final question, asked his he took a moment to review his jurors then thanked the for judge and their Defense did not patience. counsel time, rushed, more he request indicate that felt a desire to ask state additional We see questions. no reason conclude that voir dire was unduly truncated. proposition third law is not taken. well 94} {¶ Evidentiary
B. Issues by Wrongdoing: Proposition 1. Forfeiture of Law No. 4 4, In proposition No. of law the trial court erred 95} {¶ by admitting various statements hearsay by Missy Allen under the doctrine of by According McKelton, forfeiture this wrongdoing. alleged error violated rights process. confrontation and due by wrongdoing recognized Forfeiture has as an long equitable been ato
exception
right
against
defendant’s constitutional
to confront the witnesses
353,
2678,
California,
him.
Giles v.
554
See
U.S.
128 S.Ct.
discretion. State Ohio St.2d N.E.2d 126 *15 the Confrontation rulings implicate However, evidentiary de novo we review (6th Cir.2010). Henderson, 626 F.3d Clause. United States background a. Factual Allen’s statements of its intent to offer filed notice prosecution The 804(B)(6) not address the the trial court did but August Evid.R. under until the trial October. question forfeiture witness, third Sherrie asked his objected prosecutor when the Defense screener, her broken what Allen had said about
Bluester, services’ the children under the were admissible that Allen’s statements prosecutor argued The ankle. (2) (1) unavailability and Allen’s he had established forfeiture doctrine because The trial he made her unavailable. acted with when purpose that McKelton had allegation objection. judge explained, “[T]he judge overruled victim, Allen, I think this is Ms. murdered the case is that this defendant this The defense noted a exception is.” by wrongdoing the forfeiture exactly what on this basis. continuing objection articulate their fully invited the to more day, parties The next the court objected that the trial Defense counsel by wrongdoing. on forfeiture
positions purpose with the that McKelton had made Allen unavailable court had not found that it was argued trial. But the prosecutor at a appearance her preventing against violence history from his of domestic purpose to infer McKelton’s proper of abuse” and “testimony pattern about Allen. He cited Z.D.’s T.W.’s testimony He also noted T.W.’s had witnessed. multiple “the incidents” after Allen had asked her from her phone that McKelton had once snatched showed, by a prepon- that this evidence call the The state contended police. in a of domestic evidence, dynamic “that relationship of the derance her from violence, keep to isolate her pattern designed of a of abuse help.” to outside reporting found day, judge from the Referring ruling previous to his burden, in this totality “the of the evidence given
that the state had met its object to Allen’s that the defense could still judge case.” The stressed particular grounds. statements on other Admissibility Clause under the Confrontation
b. violated rights confrontation were McKelton claims nieces, of her through of dozens of Allen’s statements admission screener, and a friends, police children’s services therapist, physical her the forfeiture- were not admissible under says He that these statements officer.2 hearsay, not entitled to objects nontestimonial he was to the admission of 2. To the extent Washington, 165 L.Ed.2d 547 U.S. 126 S.Ct. declarants. See Davis v. confront the by-wrongdoing exception because the state did not establish that he had killed *16 Allen with the purpose of her from preventing testifying against him. The United Supreme States Court has analyzed the
{¶ 103}
forfeiture doc-
trine’s common-law roots and concluded that it “applie[s] only when the defen-
dant
in
engaged
conduct
designed
prevent the witness from testifying” about
sic.)
an
Giles,
earlier offense.
(Emphasis
359,
2678,
(1) purpose Accident and McKelton argues that the notion of in “purpose” forfeiture analysis is inconsistent with both the him charges against and the theory state’s of Allen’s murder. Because the charged state felony Allen, with the murder of 2903.02(B),
R.C.
predicated
assault,
on an underlying offense of felonious
R.C.
2903.11(A)(1),the state had to
prove only
he acted
in
knowingly
committing
assault,
the felonious
not
in
purposely
killing
Allen.
125
Fry,
See
Ohio St.3d
on Indeed, let alone to do so for a particular reason. the state’s theory was that Allen’s spontaneous” planned.” murder “was and “wasn’t Wit- nesses testified that McKelton killed Allen during argument and tried (2006). example, For he discusses Allen’s statements to friends and relatives. But an neighbors unavailable “[s]tatements witness’s to friends and about abuse and intimidation” do not implicate California, the confrontation clause. Giles v. 554 U.S. S.Ct. L.Ed.2d 488 not establish of Allen’s death do Thus, circumstances the immediate revive her. statements admission of testimonial that would allow the requisite purpose wrongdoing. of forfeiture because
(2) purpose violence and Domestic howev- inquiry, does not end the analysis The immediate-circumstances history circumstances —the er, because, argues, the state broader as of purpose an inference support McKelton and violence between domestic Allen— case. that a Giles, open possibility “left expressly Court Supreme inferred from the surround testimony might be prevent intention to defendant’s violence.” circumstances, ongoing in a case of domestic such as ing Crawford *17 84, (2009), 281 704 Commonwealth, aff'd, 557 Va. 686 S.E.2d Va.App. 55 (2011). 107 S.E.2d to violence” are relevant of domestic explained The court “[a]cts a victim from are intended to dissuade because “often purpose inquiry to to designed prevent include conduct help, to outside
resorting Giles, 377, at in 554 U.S. prosecutions.” criminal cooperation officers or police murder, in relationship ends 488. When an abusive 171 L.Ed.2d 128 S.Ct. the intent to isolate expressed that the crime may support finding “the evidence cooperating to the authorities or reporting to her from abuse stop the victim and admissible under the prior her statements prosecution rendering with a criminal — Hence, exception the forfeiture deciding whether forfeiture doctrine.” Id. (or past evidence of abuse as relevant” regard “highly courts should applies, threats) as help, outside as well seeking a victim from designed discourage to to expected where the victim was proceedings criminal ongoing evidence of testify. Id. analyzing to “highly violence is relevant” Evidence of domestic also, 377; v. e.g., at see exception. of the forfeiture Giles
purpose prong Banos, (Mo.2008); Cal.App.4th 178 People McLaughlin, 265 S.W.3d 491-492, Cal.Rptr.3d violence evidence of domestic that there is insufficient argues McKelton domestic reported that Allen ever case. The record does not indicate pending McKelton in a testify against expected abuse to or that she was police 2010- Compare Fry, she died. Ohio proceeding criminal when 108-109; at 272. Ohio-1017, McLaughlin evidence this case. so, can be inferred from the purpose Even Allen, about McKel- nieces, both testified who lived with McKelton Allen’s took the testified specifically of Allen. And T.W. ton’s abuse Z.D. did call 9- to call 9-1-1. When when Allen asked her away from her phone 1-1 on the night ankle, that Allen broke Thus, her enraged. although Allen had not formally contacted police, her nieces’ testimony indicates that McKelton was trying isolate Allen and prevent her from talking authorities. reasons, For these the admission of Allen’s statements did not violate
Giles’s purpose requirement reject proposition we of law 4.No. Impeachment Proposition Gerald Wilson: of Law No. 6 In proposition of law No. McKelton
{¶ the trial court 115} erred by permitting the state to impeach witness, Wilson, its own Gerald prior his inconsistent statement and admitting extrinsic evidence of that prior state- ment. McKelton also argues that the prosecutor improperly relied on Wilson’s prior statement as substantive evidence of guilt. his background
a. Factual Wilson gave police in January statement 2009 in which he said that he had heard McKelton admit to choking Allen. McKelton also threatened that if Wilson said anything, he would up “end like Mick did.” When the state called Wilson to testify, he denied or claimed not to recall having made the pressed, statements. When broadly he asserted that he did not know anything about the matter. Finally, he admitted that he had spoken police, but then claimed that police had falsified the transcript statement. He insisted that he had been lying and that police telling were everyone to lie about McKelton. objection, Over defense played state *18 audio recording of Wilson’s police interview. stand, After Wilson left the the prosecutor asserted that he had been
“shocked and surprised” by his prosecutor recantation. The stated that he had personally interviewed Wilson and his representations had been consistent police statement. judge The trial found that surprises “there were damage,” affirmative which allowed the state to impeach Wilson under Evid.R. day, The next sought the state to admit Wilson’s statement as an exhibit. trial The court objection. sustained defense 607(A) Application
b.
of Evid.R.
607(A)
Evid.R.
authorizes a party
impeach
“by
to
its own witness
means of a prior inconsistent
only upon
statement
showing
surprise damage.”
affirmative
We review a trial
application
court’s
of this rule for an
Davie,
abuse of discretion.
80 Ohio
at
prior statement and counsel had no reason to believe that the witness would id.; testify Butts, as he did at trial. See Ferguson Realtors v. 37 Ohio App.3d 282 6, 9, (12th Blair, Dist.1987); App.3d 34 Ohio v. State Dist.1986). “shocked and (8th Here, said he was prosecutor
N.E.2d his statement materially differed from testimony trial when Wilson’s surprised” circumstances, found that the reasonably the trial court these Under police. testimony. by the witness’s surprised state was if a own “party’s is satisfied damage” requirement “affirmative The 121}
{¶ contradict, deny, party’s position.” or harm that facts that witness testifies to police said that had asked 9; Realtors 33. Wilson Ferguson Blair at see also testimony of undermined the potentially witnesses —to lie. This him—and other had heard McKelton who had testified crucial state witnesses several did not have prosecutor that the to one or both murders. Given confess affirma- found that reasonably trial court Wilson’s eyewitnesses, the damaged the state’s case. tively not surprise that the state did establish objects McKelton also object to the The defense did impeaching Wilson. damage
affirmative before it play announced that would like to until the state state’s examination Wilson time, the trial court invoked Evid.R. At that recording January of his statement. 607(A) objection play and allowed the state to overrule the defense of Evid.R. 607 were record, requirements hold that the recording. On this we satisfied. in the Furthermore, any plain cannot demonstrate error at trial. v. objected the defense See State questioning
state’s
of Wilson before
Barnes,
state’s
laid
questions
283
¶
1354061, 14;
d.
statement as
Wilson’s
relied on Wilson’s
improperly
that the state
Finally,
McKelton
result,
a
he
As
guilt.
evidence of
statement as substantive
prior
based on unsworn
risk” that he was convicted
“grave
that there is a
asserts
Sixth,
Fifth,
Fourteenth Amendments.
of the
testimony,
violation
hearsay
constitute
rule,
inconsistent statements
“prior
a general
As
128}
{¶
impeachment.”
only
purpose
for the
and thus are admissible
evidence
id.,
(3d Ed.2010);
also
Section
Evidence,
607.4, at
see
Gianelli,
482-483
Section
may
exception applies, party
613.3,
hearsay
unless another
Accordingly,
at 591.
“ ‘for the
inconsistent statement
a prior
his own witness about
interrogate
not
”
Dick,
v.
accused.’ State
against
substantive evidence
offering
purpose
134 Ohio St.
(1971),
Duffy,
v.
quoting State
271 N.E.2d
Ohio St.2d
Further,
prosecutor
(1938),
syllabus.
two of
paragraph
15 N.E.2d
argument. State
during closing
their truth
statements for
must not refer to such
¶
(6th
442, 54
505,
sistent statement as
object, plain-error
or otherwise
limiting
instruction
request
did not
evidence 'and was But the error of its conviction of McKelton. support unsworn to hear only person not the outcome-determinative, because Wilson Evans, Marcus Evans. Sheridan murder of Allen or confess to the in Allen’s himself implicated all testified that he Sneed, Bryant and Charles *20 Sneed, death. And Bryant, and Lemuel Johnson all testified that McKelton implicated himself Evans’s death. reasons, For these reject proposition we of law No. 6.
{¶ 131} Testimony Crystal Proposition 3. Evans: of Law Nos. 10 and 11 prosecutor The questioned Crystal about her March 2009 police statement and about some of her phone correspondence calls and with McKelton during the months before trial. The trial court admitted a complete transcript of interview, the police recordings calls, of the phone and the letters into evidence. In proposition of law No. argues McKelton that this violated his to a rights trial, fair due process, reliable determination of guilt, and a reliable sentence. contends, He also in proposition of law No. that it was improper to admit that statements had been made detectives during the interview. McKelton did not request limiting trial, or object instructions at so Barnes,
plain-error
applies.
review
See
94 Ohio
statement to impeach her testimony on direct examination. The state counters that its use proper to demonstrate McKelton’s “prior planning escape criminal liability for Germaine Evans’s death.” Prosecutors may elicit on direct examination
defendant asked a
him,”
witness “to
fabricate
alibi for
Commonwealth v.
34, 61-62,
561 Pa.
Young,
(2000),
b. Extrinsic evidence of police statements to also that there was no evidentiary basis for court to admit extrinsic Crystal’s evidence of March statements to police. Crystal’s prior out-of-court statement would generally be inadmissible truth 801(C) of the matter asserted. Evid.R. and 802. The state contends her statements are nonhearsay because indicate consciousness guilt by confirming that McKelton encouraged provide her to a false alibi. But nothing Crystal’s statements, or in her responses to inquiries about them at Therefore, to lie. the state has trial, had asked her indicates nonhearsay purpose. legitimate identified a hearsay exemption exception other state has not identified prior were not admissible as Crystal’s They statements. apply
that would *21 607(A), evidence of them does Evid.R. so extrinsic inconsistent statements under 613(B). earlier although Crystal’s the state used fall Evid.R. And not under recollection, the defense—not the state— her that entitled to refresh statements result, the trial Evid.R. 612. As of her statements. See transcript to admit the statements.3 by admitting Crystal’s court erred error, that for this the outcome so, cannot establish but Even McKelton Mammone, 139 Ohio otherwise.” State v. “clearly would have been
of the
¶
where-
truth of the matter
statements were also hearsay.”
detective[s’]
State,
Lampkins
(Ind.2002).
1251-1252
jurors
The
had no
way to
know
the “statements were not
evidence”
the officers’
representations
Crystal may
1252;
have been
truthful.
entirely
Id. at
see
Cray craft,
also State v.
d. Admission of and letters McKelton also claims that the trial court violated Evid.R. 403 by *22 admitting recordings jailhouse his phone calls with Crystal and his letters to her. All admissible, relevant evidence is Evid.R. unless probative its value is substantially outweighed by danger of unfair prejudice, confusion of the issues, 403(A).5 or misleading the jury, Evid.R. In the recording admitted, of the first call McKelton explained the
police’s theory of Evans’s murder and asked Crystal why she police had left voicemail suggesting that he arrived home p.m. 10:00 on February 27. In after call, the second he Crystal argued loudly, scolded, and he “I why you wonder making stupid these decisions.” These conversations highly are probative McKelton’s efforts to establish an alibi and to monitor Crystal’s with exchanges police, and probative their value is not substantially outweighed by danger unfair prejudice. The content of the letters was also probative more than unfairly
prejudicial. The four letters
during Crystal’s
introduced
testimony supported the
theory
state’s
that McKelton was trying to persuade her to lie for him at trial.
4. These statements do not raise confrontation concerns because Luke and Witherell both testified
during the state’s
appears
trial,
case-in-chief. “[W]hen the declarant
for cross-examination at
places
Confrontation Clause
prior
no constraints at all on the use of his
testimonial statements.”
Washington,
59, 124
1354, 158
v.
(2004),
541 U.S.
S.Ct.
L.Ed.2d 177
fn. 9.
Crawford
repeatedly
5. McKelton
“heightened scrutiny” applies
asserts that
objections
to Evid.R. 403
capital eases. But
proposition
the case he cites for
exacting
establishes a more
standard for the
gruesome photographs
eases,
admission of
capital
capital
for the admission of all evidence in
Morales,
252, 257-258,
eases. See State v.
a. Factual leading leave to use sought the state testifying, began Before Dumas adverse 611(C) with the she was “identified because under Evid.R. questions relationship Dumas’s the state to establish requiring After in this case.” party McKelton, request. the state’s granted trial court party an adverse identified with Dumas was Determination that b. on 611(C) leading questions the use generally prohibits Evid.R. “[wjhen calls a hostile party However, they permitted are examination. direct Id. We party.” an adverse identified with witness, or a witness party, an adverse Ramage of discretion. for an abuse of this rule application a trial court’s review Servs., Inc., 64 Ohio St.3d Emergency Ohio Cent. *23 (1992). that Dumas was finding the trial court’s Here, supports record
{¶ 151} six-year a had ended they that Dumas testified with McKelton. identified She visited still close. and were year, earlier that relationship romantic him him, spoke letters with money, exchanged him jail, in sent McKelton began his trial him since Indeed, even with spoken she had telephone. on the earlier. days four sufficient to Dumas was relationship if that even McKelton 152} him, adversity, prosecu- to establish was identified
to establish she is not But evasiveness that Dumas was evasive. to show tor also had assessing Instead, relevant it is generally adversity. to finding prerequisite leading permitting basis for hostile, entirely separate an a witness is whether 611(C). Evidence: Weissenberger, Ohio See Evid.R. under questions Courtroom, (1991) (“A Manual hostile witness is one who is so evasive or on uncooperative examination that his is impeded”). Thus, the trial court reasonably found that Dumas awas witness
identified with an party. adverse questions
c. The state’s (¶ alternatively argues that the state “used leading excessive questions to improperly put words mouth place [Dumas’s] improper jury.”6 insinuations before the Because McKelton did not raise objection trial, we review for plain error. examination, (1) On direct the prosecutor inquired about following:
whether Dumas had given money in the past and whether she had set (2) robbery him, up victims for her date with McKelton on the evening of Alen’s (3) death, (4) her found, interaction with McKelton after body Alen’s request speak she to his attorney about his alibi few weeks after Alen’s death. Throughout questioning, the prosecutor expressed disbelief Dumas had never asked McKelton whether he killed Alen. He also had, tried to establish that Dumas at McKelton’s request, texted and called McKelton on the night Evans’s murder to establish alibi for him. McKelton first claims that prosecutor used “excessive” leading
questions. But party is permitted to ask leading questions under Evid.R. 611(C), and there is no limit on the number of leading questions the party may ask. Second, although McKelton claims that the prosecutor “improperly put mouth,”
words Dumas’[s] Dumas often refused to answer questions with a simple “yes” or “no.” Third, McKelton claims that the questions amounted to “improper insinuations.” “Prosecutors must avoid insinuations and assertions calculated to * * *
mislead.
[T]hey may not allude to matters not supported by admissible
Lott,
evidence.”
289
Expert:
Law
14
Proposition
5. Domestic-Violence
of
No.
expert
of law
state’s
argues
No.. McKelton
the
proposition
160}
{¶
had
testimony about
violence was inadmissible because the defense
not
domestic
argues
expert
the
of
victim. He further
the
challenged
credibility
the
than
specific
about Allen’s
characteristics rather
about
impermissibly testified
victims generally.
characteristics
domestic-violence
Expert-witness testimony is
admissible “if it will assist the
generally
Koss,
v.
trier of fact
search of the truth.” State
551
(1)
if
testify
a
as an
the
permits
expert
N.E.2d 970
Evid.R.
witness to
beyond
knowledge
pos
either
to matters
or
“testimony
experience
relates
the
(2)
lay persons
dispels misconception
lay persons,”
or
common
among
sessed
skill,
knowledge,
an
by specialized
experience,
the witness “is
as
qualified
expert
(3)
subject
of the
and
the
training,
regarding
testimony,”
or education
the
matter
scientific, technical,
is
reliable
or other
informa
“testimony
specialized
based on
an abuse
a trial
admission of
expert testimony
tion.” We review
court’s
Haines,
393,
expert testimony about “ only is some syndrome, but if ‘there about battered-women’s expert testimony' woman, is that a or witness to the case a battered evidentiary party foundation would in such a manner that a be witness has party behaved ”7 for the behavior.’ Haines testimony providing explanation by expert aided (1993), fn. Borrelli, A.2d 15. 227 Conn. quoting syndrome” psychological to “both the effects Experts often term “battered woman to refer use the Dutton, Understanding dynamics relationships.” Women’s violence and the of abusive domestic *25 290 testimony cycle The state offered about the Robinson’s domestic 164}
{¶
to explain
report
violence
how Allen’s failure to
McKelton could be consistent
other
abuse.
adequate
evidence of
And the state established an
foundation
testimony
for this
that McKelton and Allen
in a
by presenting evidence
were
Haines,
393,
about Allen’s note that Robinson although we indicated familiarity background, some with Allen’s she did not opine Allen was victim. Her about testimony bearing women certain characteristics dispelled common own misperception brief to this court—that there —echoed “stereotypical Robinson, is a victim of domestic Through violence.” the state unlikely established domestic violence can affect victims. Finally, testimony that Robinson’s violated Evid.R. 166}
{¶ knowledge 403 because it was tainted her of the facts in this case. Robinson trial, testified before she had some of writings reviewed Allen’s and a letter to Allen from McKelton. McKelton reasons that Robinson’s reference to these implied materials that Robinson “was called because materials’ contents revealed incidents of domestic violence.” Robinson did need to to review information —or mention it at
trial —in order to testify generally about domestic
But the
violence.
record
no
way suggests that these materials affected her testimony; she testified that her
knowledge was
from
derived
domestic-violence
her
experience.
literature and
own
Ideally, the trial court
have
jury
should
instructed the
on
limits of
Robinson’s
confusion,
Haines,
possible
eliminate
see
Ohio St.3d
{¶ Proposition 6. Cross-Examination of Informants: of Law No. 9 In proposition of law No. McKelton claims that the trial court improperly limited his cross-examination three incarcerated informants: Johnson, Bryant, Charles says Lemuel and Marcus Sneed. McKelton that the Responses Syndrome, A Domestic Violence: Battered Woman 21 Hofstra L.Rev. Redefinition of (1993), fn. 14. credibility” get he did not thoroughly because judge [their] was “not able about his state- testifying them about their motives adequately question in the of Allen and Evans.
ments
himself
murders
impheating
right
a witness
Scope
a.
of the
to cross-examine
the U.S.
defendant
gives
The Sixth Amendment to
Constitution
against him.”
also Ohio Constitu
“to
with the witnesses
See
right
be confronted
* * *
*26
(“the
I,
to meet the
tion,
108
accused shall be allowed
party
Article
Section
face”).
opportunity
‘an
“guarantees only
to
But this protection
witnesses face
”
in
v.
129 Ohio
Lang,
State
(Emphasis
original.)
effective cross-examination.’
¶
Fensterer,
596, 83,
512,
examination
611(A),
control
However,
a trial court “shall exercise reasonable
under Evid.R.
evidence.”
interrogating
presenting
the mode and order of
witnesses
over
limitation on cross-
a
a trial court’s
challenges
When
defendant
of the
turns on the nature
appeal,
on
the standard
review
examination
* *
*
to estab-
opportunity
a
‘the
deny
that
defendant
limitation. “Limitations
on
Sixth
infringe
to lie’
core
may have had motive
lish that the witnesses
sic.)
v. Gon-
(Emphasis
de novo.
rights” and are reviewed
Amendment
¶
(1st Dist.),
903,
160,
b. Charles
examination,
direct
stated that
was
Bryant
willing
cooperate
On
he
self-interest,
with
but
police
promised
out
he denied
he had been
anything
cross-examination,
specific.
Bryant
prior
On
defense established
had
felonious-assault conviction and had been
trial for
awaiting
felonious assault and
for 14
other offenses
months. He admitted that his trial had been continued
maybe
“[r]oughly
four times” but
that it had
denied
been continued “to see how
goes
attorney
him,
case.” His
had
[his]
[McKelton’s]
advised
however, that
testifying against
might help
Bryant
case.
The trial
objections
court sustained
to two defense questions: how
many
Bryant’s
case
pending
times
had been set for trial and whether
he
been
Arsdall,
charged
See
trafficking.
Van
U.S.
S.Ct.
jurors already
Bryant
L.Ed.2d 674. The
knew that
on
awaiting
felony
offenses and
his trial had been continued until
he
after
testified McKel-
*27
case,
Reed,
ton’s
“adequately
which
lie.”
[his]
established
motive to
State v.
10th
¶
09AP-84,
c. Lemuel Johnson that Johnson testified he had on a been incarcerated federal cocaine- {¶ 175} possession charge year for about and would be sentenced about a month after McKelton’s trial. But Johnson insisted he did not expect testimony his against McKelton to him at help sentencing. explained He had not he told police his about conversations with until he was locked on up he charge because had assumed that “everybody already. Cincinnati knew” He also the jury prior told about his convictions. cross-examination, judge objection On the trial an to ques sustained
tioning as asked and answered when defense
repeatedly questioned
counsel
why
Johnson about
thought
Johnson
his
would matter now. The jury
had ample information to
testify;
evaluate Johnson’s motives to
it had been told
that he was incarcerated and would
be
soon
sentenced. See United States v.
(5th
Cir.1993); Reed,
Tansley,
d. Marcus Sneed conspiracy was on speak police jailed did not until he federal Sneed his con- long weighed He on said McKelton’s admissions charges. science, safety say his family’s anything but that he had been too worried for was locked up. until McKelton on a custody drug- had been in federal 13 or months Sneed trial. expressed uncertainty at the time of McKelton’s He
conspiracy charge
'sentence,
he
lengthy
but he admitted that
was
facing
whether he was
about
He also admitted that
prior
held without bond and had
convictions Ohio.
being
until
he
at McKelton’s trial but
had been continued
after
testified
sentencing
his
testifying
eye
was
why.
he did not know
He insisted that he
not
said
sentencing hearing.
upcoming
objections when
repeatedly
trial court sustained
defense counsel
continuance,
timing of his
even after Sneed had
questioned Sneed about the
objections
inquiry
many
into how
answered. The trial court also sustained
communications. The
facing
privileged attorney-client
was
counts Sneed
credibility,
information to evaluate Sneed’s
however. See
jury had sufficient
Reed,
7. Other
Confrontation
Proposition
Law No. 11
admission of
of law No. McKelton
proposition
the Confrontation Clause.
hearsay evidence violated the Rules
Evidence and
an abuse
a trial
issues absent
ruling
evidentiary
will
reverse
court’s
on
We
Belton,
See State v.
Ohio St.3d
proof
prejudice.
discretion and
material
—
—
N.E.3d —,
—,
{¶ rule if of the combined hearsay part “is not under the each which excluded provided [Ohio rule in the exception hearsay with an to the statements conforms 9-1-1 on the of 805. Z.D.’s out-of-court statements Evidence].” Rules Evid.R. hearsay the or state-of-mind recording were admissible under excited-utterance 294 803(2) (3).
exceptions. See Evid.R.
But the record
not
does
indicate that
daughter
phone-cord
described the
incident to
while
Z.D.
“under the
803(2).
of
by
stress
excitement caused
the event.” Evid.R.
Nor does it show
mind,
the
went
daughter’s
existing
statement
to McKelton’s
“then
state of
emotion,
803(3);
Notes,
sensation” about the incident. Evid.R.
[or]
1980 Staff
803(3) (state-of-mind exception
Evid.R.
“does not include statements of
of
belief
past
doing
events” because
so “would
negate
proscription against
entire
evidence”).
hearsay
has not
hearsay
state
identified
other
exception
statement,
that would
this
and this
permit
evidence should have been excluded.9
so,
was
materially
Even
not
prejudiced
the error.
—
—
¶
Belton,
St.3d —,
399,
b. to describe a objection, Two hearsay, detectives related over testifying while about investigations testify their Allen’s murder. A law-enforcement can officer about declarant’s out-of-court statement for nonhearsay purpose explain- Thomas, ing investigative next State v. step. Ohio N.E.2d 401 Testimony explain police offered conduct is admissible as (1) nonhearsay if it only satisfies three criteria: “the conduct be explained [is] conclusion, arguments 9. we need Given not consider McKelton’s alternative that the statement violated Evid.R. 403 or
295
(2)
statements,”
relevant,
with
the
equivocal,
probative
the
contemporaneous
substantially
not
the
of unfair
outweighed
danger
of the statements is
value
(3)
“the
cannot connect the accused with the crime
statements
prejudice,
Ricks,
356,
say purpose
explaining
Evans because he
wit-
theory
McKelton killed
the state’s
supported
truth,
the two
Luke’s statement connected
Allen’s murder. Viewed for its
nessed
gave
who
result,
to confront
informant
As a
McKelton was entitled
deaths.
information.
Luke the
doubt. See
so,
harmless
reasonable
beyond
Even
the error was
(1967);
Chapman
c.
at
Park
Statements
Inwood
Karaguleff
Detective
about
he
testified
statements
heard at Inwood
Park when the
were
police
investigating
discovery
body,
of a
later identified
members,
family
as Evans. He said that Evans’s mother and
who insisted that
Evans,
friend,
the victim was
he
killed by
“believed that was
his
Calvin McKelton
* *
*
lawyer’s body.”
because he
move that
helped
According Karaguleff,
to
spectators
state;
an
made these statements in
crying,”
“[s]ome
“emotional”
were
they
and
“yelling, screaming, wailing.”
were
Because McKelton did not raise
hearsay
objections
trial,
and confrontation-clause
at
he has
all but plain
waived
Barnes,
27,
error. See
excited-utterance exception Evid.R.
or whether
violated McKelton’s
rights,
confrontation
because the
bystanders
record does not indicate whether the
spoke spontaneously,
provided
response
police
this information
questioning,
or even
knowledge regarding
had
firsthand
the location or identity of the
body, let
of
alone the cause
death. But even
assuming that
confrontation-clause
occurred,
violation
the error was harmless because “the
probable impact”
“on
statements
the minds of an average jury”
Harrington
was negligible.
v.
250,
California,
(1969).
395 U.S.
jurors
89 S.Ct.
23 L.Ed.2d
The
heard
testify
other witnesses
killing
McKelton had admitted
Evans because
Thus,
he had witnessed Allen’s murder.
is
possibility
“there
reasonable
[no]
conviction,”
the improperly admitted evidence
to the
contributed
so the
alleged confrontation error was harmless
beyond
doubt.
reasonable
Schneble
Florida,
405 U.S.
92 S.Ct.
8. Irrelevant Proposition Evidence: of Law No. 5 law, In his fifth proposition that the state violated his rights by introducing constitutional pieces prejudi- numerous of irrelevant and evidence, evidence, trial, cial as well as character at violation of Evid.R. noted, and 404. object Unless otherwise McKelton did not at this evidence trial, Barnes, so we review his claims for error. See plain Ohio St.3d N.E.2d Photographs
a. of McKelton’s tattoos him taken objects photographs to the admission of several death, tattoos. The depicted police Allen’s some which by police after prosecutor The “just purposes.” the tattoos identification photographed beyond “It’s closing stating, tattoos almost during arguments, mentioned the a tattoo having how it imagine happened, here defendant [parody] sit killer, that’s his says, straight [tattoo].” but under photos tattoo should have been excluded agree that the We draw improper photographs encouraged Evid.R. 403. tattoos crimes because his charged inference that McKelton committed the *31 clearly guns. his And other at trial photographs showed comfort death Thus, minimal any his identity depicting confirmed McKelton’s without tattoos. danger was may outweighed value that the have had probative photos unfair prejudice. Nevertheless, we given overwhelming guilt, evidence of McKelton’s clearly the trial would photos, that but for these “the outcome of unpersuaded
are
Mammone,
467,
b. other witnesses to “take care of’ some testified that McKelton offered Lemuel Johnson past success brother and described witnesses for Johnson’s incarcerated Evans) object- Defense counsel testifying. from preventing (including witnesses testimony not consider the as evidence jurors The court warned the to ed. * * * or in conformity that acted in in order to show he “character that the now evidence argues accordance with that character.”10 The state to silence them. to McKelton killed witnesses prove admissible Evid.R. of a is admissible under operandi Evidence certain modus 404(B) which, to compared it when provides fingerprint “because behavioral to can used question, with the crime in be fingerprints behavioral associated 531, Lowe, as 69 Ohio St.3d identify perpetrator.” the defendant of other for this evidence purpose, N.E.2d But to be admitted crime in question.” features with the acts “must related and share common be Id. trial redirect, identity prosecutor to the of other victims. McKelton
10. On
alluded
topic.
questions were
by overruling
objection
leading questions on
But these
this
court erred
c.Witness
intimidation
Gregory
Detective
testified
he received
frantic
call
phone
from
early
Michael
on September
Nix
2010. Nix said that an associate of
a party
had
him at
asked how
approached
McKelton’s trial was
going
go.
he
replied
Nix
did not know. The
then
associate
left the
later,
party. Twenty minutes
someone fired shots
Nix from passing car.
testimony
improper
Instead,
This
is not
evidence of another act.
it is
evidence to
support
charge
McKelton tried to prevent a witness from
him
testifying.against
in this trial. Evidence that
may
have interfered
with a
witness’s
is highly probative
of his consciousness of
guilt.
v. Conway,
d. “C Murderer”
that
Gregory
Detective
stated
McKelton’s street name was “C Murder-
Gillard,
er.” In State v.
this court held that
prosecutor’s
repeated references
to the
significance
nickname,
John,”
the defendant’s
“Dirty
were “improper
attempts to impugn
Gillard’s character.” 40
Ohio
e. “Serial killer” Sheridan Evans that police testified should not called Crystal have when for Evans looking doing because so “was a throwing tiger like meat to when you know man a danger this is serial killer.” unfair from prejudice description Sheridan’s a McKelton as “serial killer” possible exceeded probative value. But we unpersuaded because are that this evidence was outcome-determinative, we do not reverse for error. plain boy”
f. “Killer” and “robber
to McKelton and his
Luther testified
Allen referred
Shaunda
homicide,
a
as “killers” and
triple
whom had been indicted for
companions, one of
a
other
boy,” meaning “person
drug
as a “robber
who robs
dealers.”
to McKelton
past
that Allen was aware of McKelton’s
Luther’s
showed
may
reported
repeated
and that Allen
not have
criminal behavior
words,
because she was afraid of McKelton.
other
police
domestic violence
Allen’s
of McKelton and their
perception
the statements were offered to show
a
a
And the trial
not to
that he was murderer or
robber.
relationship,
prove
by issuing
limiting
of unfair
instruction to
any danger
prejudice
court reduced
Jones,
10,
robbery victims for
him in
refused to
the “role” of his
prison.
play
sent to
She testified
she later
by
Crystal
baby.
implied
because McKelton and
The state
girlfriend
“role,”
only sending
money,
facilitating
Dumas meant not
but also
answers was
questions
robberies and
an alibi. But this series of
providing
party,
to Dumas’s status as a witness identified with
adverse
relevant
admitting
not err
it.
court did
g. Drug activity
First,
activity.
drug
witnesses testified about McKelton’s
Several
in drug-related
McKelton were
engaged
Lemuel Johnson testified that he and
him. This
of some witnesses for
transaction when McKelton offered
take care
of the witnesses
for McKelton’s offer to take care
testimony provided context
trial court twice instructed the
not to draw
brother. The
against Johnson’s
jurors
that the
followed these instruc-
presume
inferences from it. We
improper
Loza,
{¶ 210} an Bryant’s credibility as testimony but this bolstered “dope dealing” past, to him. And Andre for McKelton’s confession informant context providing him ounces of given that Evans claimed that McKelton Ridley testified cocaine, $20,000 $40,000, estimated value of after the men moved body, Allen’s which suggests McKelton bribed Evans to him from keep reporting Allen’s murder and for of helping dispose body. pieces her These highly probative, evidence were and their value far outweighed danger unfair prejudice. Finally, objects to evidence lifestyle about his “lavish as a
{¶ 211} drug dealer.” Luther testified that McKelton gave significant Allen amounts of money. But evidence about Allen’s financial dependency on McKelton was' cycle violence, relevant to the state’s effort to establish a of domestic the first step of which is “the tension building phase,” keeps when tension as a rising result of economic-power relationship. issues And the prejudicial impact of minimal, testimony given this was that Luther did not address the source of money. McKelton’s
h. Rumors state that they Several witnesses said had heard rumors about who was * * * responsible the murders. “Rumors prototypical are examples hearsay.” inadmissible Weaks v. North Dept, Transp., Carolina 761 F.Supp.2d (M.D.N.C.2011). 289, 306 Sheridan Evans testified about conversation in which McKelton had “Pooh,” McNeil, told “Well, her Michael had killed Evans. She responded, you Pooh said did it.” testimony This was provide offered to context for threatening reaction when he was accused of the murder. conversations, Marcus Sneed testified that in two he asked McKelton whether what “everybody saying was the street” about the murders was true. testimony provided context for McKelton’s responses admitting involvement in the murder of Allen and Evans. Crystal testified about rumors that she did not associate with McKelton
after her brother’s death because of “rumors that he had something to do with brother’s death.” This testimony presented [her] was to show Crystal’s state of initially mind when she spoke police. Lemuel Johnson testified on cross-examination that he believed McKel- witnesses,
ton’s accounts about eliminating “I saying, already knew from the telling streets he was the truth.” But counsel invited defense by inquiring whether Johnson believed McKelton being “was serious about these witnesses that he telling about.” [Johnson] instances, In all these evidence nonhearsay was offered for a purpose
and not for truth of the matter Accordingly, asserted. there was no violation of hearsay Davis, rules or the Confrontation Clause. See U.S.
S.Ct.
i. “Generalized objects McKelton next allegedly prejudicial “gener- the admission of meaningfully alized” statements he was unable to refute at trial. Most of the by statements cited McKelton are discussed elsewhere in this And his opinion. objections are meritless. remaining
j. rap songs References to him attempted vilify by making the state prejudicial songs. irrelevant and references to rap that, account, Ridley by gotten Andre testified Evans’s McKelton had Ridley’s
the idea to throw “some Allen’s from a dope” body rap song. song reference to the was a detail that lent to Evans’s rap credibility description disposed body, of how McKelton of Allen’s which was crucial to both establishing against that McKelton had committed crimes Allen and that Evans had witnessed those crimes. by admitting The trial court did not abuse its discretion this evidence.
k.Battles Co. jailhouse objection, Over defense Detective Witherell testified about states, out Crystal. July letter from McKelton to The letter when we find “[I]n all everyone they using, get post up are we there records and them over gone ** * Immediately illegible is an seven-letter word that preceding Co.” “Co.” “Battles,” begins capital with a “B.” Witherell read the word as which he took Homes, Inc., Crystal’s a funeral near parlor refer to JC Battle & Sons Funeral post potential home. He that McKelton wanted to the names of thought safety that their convey message witnesses at a funeral home to “subtle” in certain explained He that he knew how “information is disseminated peril. him in light that the letter concerned of “McKel- neighborhoods” and [Cincinnati] history ton’s terms of witnesses.” probative witnesses was of McKelton’s plans Evidence of to threaten operating, as McKelton’s method of and the defense guilt
consciousness of
as well
Thus, we are
opinion.
about the basis for his
opportunity
press
Witherell
109 Ohio
Conway,
that this
violated Evid.R. 403. See
persuaded
N.E.2d
at 68.
St.3d 412.
swore conversation, told not wish to with Dumas she did be involved Crystal. explore him now that he had a son with This evidence was relevant to contrary Dumas’s bias favor of McKelton. And to McKelton’s potential improperly rely encourage the state did not on her to suggestions, inferences about his treatment of all women. Bryant Charles testified that McKelton advised him that “females can’t trusted,” “good lying,”
be
are
and have to be watched. McKelton then
referred to Allen as “scandalous and
her mouth.” The state introduced
running
this evidence to show the course of the conversation in which McKelton confessed
murdering
suggest
possible
to
Allen and to
motive for that murder —-McKelton
did not trust Allen. But the state did not
imply
general
attitude
Johnson,
explained why
towards all women
he killed Allen.
Compare State
(1994)
332, 340,
(prosecutor impermissibly
Ohio St.3d
m. Gruesome The state introduced 15 of Allen’s each autopsy photographs body, injuries her from a capturing angle perspective. body different or Allen’s appears decomposed photographs. discolored some Others show extract- body parts. ed judicious This court “strongly gruesome photos use” of eaution[s] Morales, cases.
capital
Accordingly,
32 Ohio St.3d
committed
abuse of her
and these
were
gross
Maurer,
239, 265,
{¶ 231}
trial,
at
objected
reintroduced at the
Defense counsel
and the
mitigation phase.
Evans,
by
state
that the
were relevant to the crimes witnessed
argued
photos
sentencing.
for the
circumstance at
The
provided
aggravating
which
the basis
objection
jurors
they
instructed the
that
could
judge overruled the
but later
in
it
to
an
prove
disprove
consider the “evidence
terms of whether
tends
only”
purpose.
of the case
and not for
other
We
aggravating
]
circumstance[
Loza, 71
at
jurors
that
followed this instruction.
Ohio St.3d
presume
must
the
79,
n. Other “irrelevant or “addition- by admitting next that the trial court erred alleges McKelton evidence,” a part prosecutorial which was unfairly prejudicial al irrelevant or commit crimes like who would “campaign depict type person to as [him] charged.” those had First, daughter that his objects hearsay cord” and warned Z.D. to phone Z.D. that “choked her mother with a
told he had analysis proposition in our argument “watch out for” addressed this Allen. We oflawNo.il. Cookbook,a Second, of The Anarchist copy introduced prosecutor only,” police had found purposes in 1971 “for entertainment published
book “on all author describes it as volume Allen’s master bedroom. This book’s (from currently illegal,” that are subjects explosives) drugs, weapons, should not be used following recipes disclaimer: “its publisher but added was argues state that the book they as do not to be accurate.” The pretend But house. the state did establishing relevant to that McKelton lived Allen’s belonged not introduce evidence that the book to McKelton. While the book satirical, title, appears partly given to be least its the book should not have But given overwhelming guilt, been admitted. evidence of McKelton’s its plain admission did rise to the level of error. Third, prosecutor asked Melinda Nagel, physical therapist, inflammatory,
Allen’s hypothetical question unsup- the record. ported by Generally, “[hjypothetical questions directed to witness supported by must be based on facts or adduced from the evidence.” Olsen Co., Elec. Auto-Lite 164 Ohio St. But N.E.2d 363 here the inquiry introduced this line of on cross-examination asking Nagel how defense reported being she would have treated Allen Allen had hit with a baseball bat. if redirect, prosecutor “pick[ed] up questioning on” this line of on asking, “[I]f you her boyfriend by slamming told broke her ankle a car door on it [Allen] * * would that repeatedly, changed your plan have treatment *?” This was a response fair to the defense’s cross-examination. Fourth, Bryant Charles testified that he and McKelton had been
driving drinking around when discussed Allen. Bryant said he had smoking marijuana been with drinking Grey cranberry, Goose while McKel- ton had been drinking straight Grey credibility Goose. These details lent Bryant’s testimony about McKelton’s confession by establishing the context of conversation, their and the trial court reasonably decided to admit them under Evid.R. 403. Bryant testified that he in jail had met McKelton when McKelton was
charged either intimidation of a witness or contempt Any of court. probative explaining value the circumstances which Bryant under met McKel- *37 ton was substantially outweighed by danger the of unfair prejudice because so, McKelton was on trial for an unrelated charge of witness intimidation. Even error; we no plain find basis to reverse for notably, acquitted McKelton was on the charge witness-intimidation this case. Finally, Marcus Sneed testified that he a man had known named “Fat
{¶ 238}
Boy”
Sneed,
who
up alongside of a road.”
According
“[e]nded
McKelton had
talked to
setting
Boy up
Sneed about
Fat
to be
trial
robbed. The
court sustained
a
objection
defense
to this
jury
disregard
instructed the
it. We
presume
Loza,
that the
jury followed the
court’s instruction.
See
Ohio
C. Instructions and Verdict Forms Proposition 1. Trial Phase: of Law No. 12 of law proposition argues No. McKelton that his constitutional (1) rights were violated because present theory the state did not a cohesive about (2) death, Germaine Evans’s the jury received instructions on complicity but no (3) it, verdict form on jury did not a reach unanimous verdict on whether McKelton was the principal only offender or complicit Evans’s death. background
a. Factual The state charged McKelton with the aggravated murder of Evans 2903.01(A). under R.C. In a particulars, bill of the state that alleged caused Evans’s a “by single death gunshot wound to the back of the head.” McKelton later a died, filed notice of alibi for night Evans but the state did not amend particulars the bill of to allege that McKelton had aided or abetted in the killing of Evans. trial, At the state sometimes that implied McKelton himself had shot
Evans and at other suggested times that McKelton had orchestrated the murder. The state offered no evidence of who fired the shot if not McKelton. Over objection, defense the trial court agreed to instruct jury complicity. on defense then requested special issue, verdict on that that arguing jury needed to unanimously find either principal was the offender or “solicited, aided, he had abetted or procured” the murder. The defense offered no legal authority that such an instruction was required. The trial court denied the request. Analysis
b. McKelton alleges First, several errors complicity. related to he says the state’s inconsistent theories of the ease “did not present sufficient evidence to find that McKelton killed Evans beyond reasonable doubt.” We will address argument in our analysis of McKelton’s claim in sufficiency proposition of law No. 13. Second, he the trial court by instructing erred on
complicity.
2923.03(F),
Under R.C.
charge
complicity may
“[a]
be stated in
section,
terms of
or in terms of
[that]
offense.”
principal
Accordingly, a
defendant who is “indicted for
aggravated murder
terms of
principal
* * *
offense
on notice that evidence could
presented
[is]
be
that he was either a
offender,
principal
Ensman,
or an aider and abetter.”
App.3d
77 Ohio
(11th Dist.1991).
defendant of reading But McKelton’s narrow complicity. support finding evidence syllabus court’s language of the Perryman is inconsistent with the broad charging jury regarding case, practice of the “unequivocally approved which indictment as a charged was even if the defendant abetting aiding 58346, 1990 v. Nos. 58292 and WL Payton, State Cuyahoga 8th Dist. principal.” 1990). 48952, 19, (Apr. *8 the evidence could was here because proper A instruction complicity was an aider and abettor. proven to have
reasonably be found
having
killed Evans
his admissions
reasonably interpreted
could have
jury
that he encouraged,
offender or
principal
that he was the
to mean either
with,
else to commit the crime.
or incited someone
cooperated
objects
unacceptable
that the trial court “created
Finally, McKelton
aggravated
him of
murder
unanimously
convict
jury
risk” that
did
law,
complicity.
verdict on
Under Ohio
provide
separate
it did not
because
or as a
complicity
a defendant convicted
“there is no distinction between
Alexander,
WD-02-047,
v.
Dist.
No.
2003-
State
offender.”
6th
Wood
principal
not even
Ohio-6969,
prove “[t]he
70. And the state need
2003 WL
* * *
complicity by aiding
the offense of
of the
to establish
identity
principal
T.K.,
512,
required under similar
(1999). Likewise,
courts have
appeals
several intermediate
improperly
below, so
objection
plain-
did not raise this
sentencing.
relevant for
487, 497,
jury foreperson.
evaluating
judge
When
claims that a trial
left relevance determinations
at
jury
sentencing phase,
we consider “the penalty-phase instructions
353,
as a whole.”
v. Neyland,
139 Ohio St.3d
12 N.E.3d
¶
1112, 214. As
as
long
“adequately
jury
the instructions
informed the
as to the
evidence to
during
penalty phase,”
consider
we will not find error.
Id. We
(1)
rejected
have
similar claims when instructions
limited the
consideration
jury’s
of the
guilt-phase
aggravating
evidence
the relevant
circumstances and the
(2)
id.,
factors,
mitigating
and made it “clear that the
would see
jury
only those
relevant,”
guilt-phase
judge
Lang,
exhibits
admitted and deemed
512,
tions as a
we find that
it is reasonable to conclude that “the
only
understood that
would see
the evidence that the trial judge deemed
sic.)
Bethel,
416,
1. for Good-Faith Basis to ask prosecutor good-faith McKelton that the lacked basis Nagel Audrey to Mindie Dumas. Because McKelton did questions posed trial, objection prosecutor opportunity explain raise this at did not have circumstances, on the record. these we questions the basis his Under Gillard, 40 533 good-faith that a basis existed. Ohio St.3d presume Blackshere, 272; N.E.2d State v. 2d Dist. Clark No. 95 CA 1997 WL 1997). (Feb. 28, *4 Inflammatory Victim-Impact Evidence objects that the introduced inflamma- prosecutor improperly McKelton
tory victim-impact Victim-impact only evidence. evidence that relates “to the on impact characteristics of the victim and the emotional of the crimes personal Tennessee, 808, 817, v. 115 family,” Payne the victim’s 501 U.S. S.Ct. (1991), is at the trial but such evidence generally phase, L.Ed.2d inadmissible offense,” if it also facts attendant to the can be admissible “relat[es] Fautenberry, Ohio St.3d identifies is either alleged victim-impact testimony to the victim-impact testimony Payne, only not the discussed which relates victim’s personal impact family, victim’s characteristics or the emotional on the offenses, see only charged it relates to the facts attendant to one of the such, of a miscon- Fautenberry at 440. As this evidence cannot form the basis duct claim.
3.Character Evidence McKelton, According to prosecutor repeatedly presented “him as a cold, unrepentant criminal who used threats to control people.” McKelton cites three exchanges revealed information about his criminal history drug (1) activity: Detective David Gregory testified that he had listened to “hundreds (2) hours of’ recordings jailhouse calls, phone Crystal Evans testified that (3) McKelton “probably selling drugs” Detective Keith Witherell testified about the “Battles” letter. Detective Gregory’s testimo- ny was not improper evidence; character it was relevant to establish that Gregory identify could McKelton’s voice. And we have already explained in our analysis proposition of law No. 5 that Crystal’s and Witherell’s statements properly were admitted. Because the evidence cited by admitted, McKelton was properly we
reject claim prosecutor committed misconduct by it. introducing
4.Wilson’s Prior Inconsistent Statement alleges prosecutor engaged misconduct *41 using Wilson’s prior statement as substantive explained evidence. As in analysis the proposition of law No. prosecutor err, the did but the error was not outcome- Likewise, determinative. conduct, isolation, viewed in did not prejudicially affect McKelton’s rights. substantial Questions
5.Leading
McKelton
that
the prosecutor engaged in
by
misconduct
“improperly ask[ing] leading questions of several witnesses.” He claims that
State essentially
“[t]he
testified for its informants” on redirect. Beyond this
assertion, however,
broad
McKelton does
analyze any specific
questions asked
or show how they prejudiced him.
reject
We therefore
this claim of misconduct.
McKelton
suggests
also
that
prosecutor
the
by
committed misconduct
asking leading questions even after the trial court
objections
sustained defense
on
that basis. We
recognized
have
that prosecutorial misconduct can occur when a
prosecutor continues to
leading
ask
questions even after the trial court has
Dior,
objections
sustained
on that basis.
6. by giving engaged that state misconduct objects witnesses, The Ridley. Andre for one of its an outdated address defense that no argued unintentional and that the error was explained prosecutor gone had not even to the investigator McKelton’s had occurred because 'prejudice by remedy permitting offered to the error judge provided. address Ridley the defense to call Ridley allowing investigator speak defense would let the they Defense counsel said during its case-in-chief. as witness morning, the next but pursue wanted to course court know whether record. The defense called no discussion of the issue on the there is no further case-in-chief. witnesses its circumstances, to establish prejudice. McKelton has failed Under these Mischaracterizing Evidence
7.
addition,
prosecutor
claims that
mischaracterized
“
‘improper
at trial. He asserts
these
three
of evidence adduced
pieces
”
to a
jury’
right
calculated to mislead the
violated his
insinuations and assertions
States,
trial,
55 S.Ct.
79 L.Ed.
Berger
fair
v. United
U.S.
quoting
trial,
applies.
review
State v.
object
plain-error
He did not
so
Hanna,
jury, you remember a scandalous had testified that McKelton had “called Bryant [Allen] Charles transcript, to the trial choking According and had confessed to her. bitch” McKelton, words,” however, a “whole lot of foul Bryant using testified her mouth.” running said Allen “was scandalous *42 prosecutor’s description between the disparity There is some {¶ 270} However, Bryant’s testimony testimony. closing arguments and his actual before jury: the trial court instructed the began, you are different than what attorneys represent the facts and
[I]f recall, deliberations to you rely upon your memory during are to collective or not based proven proven whether or not those facts have been decide the instructions of law. upon prosecutor that the
Here, “a
of the
remarks demonstrates
challenged
review
Banks,
v.
8th Dist.
he
the evidence showed.” State
simply
thought
set forth what
if
97084,
on the witness addressed McKelton as he left the courtroom. According to prosecutor, the Wilson and looked at I “got up goes, got you. Calvin and I got bro, you, bud or your whatever last word was. You’ll have to use memory. him, He looked I right got you nodded. back.” The transcript indicates that said, on, Wilson “Later Bro.” Bryant’s testimony, As with the prosecutor merely related his own confirmed
observations about which testimony, entirely Wilson’s were not evidence, record. But rely was told to on its own recollection of the McKelton offers no evidence that the jury disregarded instruction. Finally, prosecutor that McKelton argued Audrey had asked provide Dumas to an alibi for both murders. According prosecutor, after Evans, he killed McKelton “I’m thought, going Crystal, to be with and I’m going to have Audrey blowing my phone up night long, all so that later I can say, hey, I’m asleep Crystal.” prosecutor argued also expected McKelton play Dumas to her “role”—whether it was providing McKelton an alibi or so, him if bringing money she failed to do McKelton would threaten her. —and entitled, A prosecutor counsel, is as is defense to “wide latitude
summation as to what the evidence has shown and what reasonable inferences
76, 82,
may be drawn therefrom.”
Stephens,
Ohio St.2d
(1970).
permitted
“present
convincing positions.”
Counsel are
their most
Here,
State v.
You heard Calvin McKelton tell
let me
about
him
You
heard him
you
say Missy’s
here. And
never heard
name.
never
*
* *
you
talk
Evans’ death.
And
never heard Calvin
about Germaine
it.
say single
word about
*43
statement,
an unsworn
a prosecutor
a defendant chooses to make
When
statement has not been made under oath
“may comment that the defendant’s
DePew,
(1988), para
9. Reference to
Circumstances
says
“improperly
that
the
referred to facts
prosecutor
as ‘the
that
on the side of
aggravating
weight
goes
unrelated
circumstance
”
that specification.’
trial,
“may
of a'
During
sentencing phase
capital
prosecutor
*
* *
introduce and comment
evidence raised at trial that is relevant to
upon
aggravating
specified
circumstances
the indictment of which the defendant
Gumm,
(1995),
guilty.”
was found
State v.
73 Ohio St.3d
10. Prosecutor’s Focus on Rather Than Evans Next, objects that the prosecutor focused more on Allen’s {¶ 283} death than during Evans’s the mitigation phase, though even killing Evans so, was the capital By offense. doing says, prosecutor he turned the one aggravating circumstance at issue into two. noted, already As during mitigation trial, of a phase capital
{¶ 284} prosecutor may introduce evidence of and comment on circum- aggravating Gumm, stance for which a defendant was convicted. at Ohio St.3d Here, N.E.2d 253. the aggravating predicated circumstance is on the victim’s having witnessed another criminal Accordingly, offense. the prosecutor was permitted to 'discuss the criminal underlying reject offenses. We therefore argument McKelton’s that the prosecutor turned one circumstance aggravating into two.
11. Reference to the Prosecutor’s Childhood McKelton claims that prosecutor erroneously compared their childhoods during sentencing. “Neither the defense nor prosecution may refer to evidence that is Brown,
not in
(1988),
the record.” State v.
contrasting background to his own. He stated that he had been raised in an upper-middle-class environment by parents high expectations who had in, their children. He contrasted that to the environment McKelton was raised * * * himself, expectations, “where he had no where he had to fend for where violence, robbery, prostitution drugs are norm.” He said it was rare for [the] people to overcome those obstacles. rebuttal, “I prosecutor experiences: cited his own childhood table,
know what grow up it’s like to I was at the kitchen projects. sitting single had a mother a can open up Spaghetti’Os everybody. and offer those to I grow didn’t to be a up murder[er].” alluding personal experience, to his own but prosecutor erred Lott criteria are satisfied here. The
no
occurred
all three
prejudice
because
brief,
justified
to defense counsel’s
response
the comments were
reference was
own,
object
to his
and McKelton did
comparison of McKelton’s childhood
circumstances,
error occurred.
prejudicial
trial.
these
no
Under
Autopsy Photos
claim that it
recasts
misconduct his
prosecutorial
as
during
explained
As
autopsy photos
mitigation.
error
Allen’s
to reintroduce
*45
5,
regard.
trial
in this
of law No.
court did not err
analysis
proposition
admitted,
prosecutor’s
decision to
it
properly
“If
then
offer
the evidence
Mammone,
claim.”
139 Ohio St.3d
cannot form the basis of misconduct
13. Cumulative prosecutor’s McKelton that the effect of the Finally, argues cumulative trial, him of a fair his conviction deprived undermining misconduct trial, cannot that the prosecutor’s context of the we conclude sentence. Viewed Keenan, rights. McKelton’s substantial See 66 prejudicially conduct affected 410, 613 N.E.2d Ohio at 203. 17. reasons, reject law Nos. 8 and proposition For all these we Proposition 15 and
E. Assistance of Law Nos. 16 Ineffective of Counsel: law, argues In his 15th and 16th of McKelton counsel propositions assistance, To provided constitutionally ineffective assistance. establish ineffective (1) objective show below an performance McKelton must that counsel’s “fell professional norms” “prevailing standard of reasonableness” as determined (2) that, unprofes- “a probability reasonable but for counsel’s demonstrate errors, would different.” proceeding sional the result have been Strick- land, L.Ed.2d performing 466 U.S. S.Ct. 674. When falls within the analysis, “indulge strong we counsel’s conduct presumption professional wide of reasonable assistance.” Id. at 689. range
1. Trial Phase ways counsel in several McKelton that defense “failed {¶ 294} provide phase. defense” for him at the trial basic First, propositions several of law as ineffective recasts
{¶295} object. rejected have each assistance because counsel failed We to its reasoning, logical on merits. The same taken underlying propositions its conclusion, claim. justifies also our denial of McKelton’s Strickland Second, should have voir dired the says that trial counsel an unidentified that occurred on October 8. As “a courtroom incident” jury after break, towards the something an afternoon he “said man left the courtroom for counsel, 11 to defense According the defense table.” and towards prosecution judge at the time of the “outburst.” The offered jurors were in the courtroom * * * jurors] anything saw to make sure that none of [the “to voir dire the ability their to be fair and any way prejudice would in which believe claims that the offer. McKelton now Defense counsel declined impartial.” have accepted. defense counsel should judgments counsel’s about generally second-guess This “court will assis- reviewing when claims of ineffective
what to ask on voir dire” questions Johnson, 2006-Ohio- voir dire. State v. Ohio St.3d during pretrial tance “counsel is appropriate This deference is because juror ques- should be any potential to determine whether position the best 516, 539, 747 N.E.2d Murphy, tioned and to what extent.” State Trial to trial counsel’s decision here. the same deference apply We incident, “hap- described as an “outburst” which he counsel observed circumstances, decide reasonably counsel could Under the pened very quickly.” *46 that decision. jury, prejudiced and McKelton was question not to for not trial counsel were ineffective Third, McKelton that argues 299} {¶ joining “law favors first two counts of the indictment. Ohio trying to sever the 8(A) charged if the offenses ‘are in a trial under Crim.R. single offenses multiple ” 293, Lott, at 51 Ohio St.3d same or similar character.’ 8(A). 14 under Crim.R. But a is entitled to severance Crim.R. defendant quoting then, can overcome a Even the state if can show Id. affirmatively prejudice. he (1) it have could joinder by showing either prejudicial defendant’s claim of trial, offenses, as if had been severed they of either of the introduced evidence 404(B) (2) joined crime at the “evidence of each Evid.R. or “other acts” under Id. simple trial is and direct.” granted have severance. the trial court would unlikely It is domestic assault and McKelton with felonious charged One and Two
Counts
ankle. Counts
in Allen’s broken
incident that resulted
May
violence for the
2008
for the
domestic violence
him
felonious assault and
charged
Four and Five
with
are of
four offenses
in Allen’s death. These
incident that resulted
July same offenses
character,
committed the
they allege that McKelton
similar
since
Miller, 105 Ohio
State v.
on two different occasions. See
the same victim
against
Dist.1995).
(4th
of each
And the evidence
679, 692,
assistance of counsel.
First, he contends that
trial
mitigation presentation
counsel’s
“barebones and not
presentation
cohesive.” “The
of mitigating evidence is a
matter of
strategy,”
Bryan,
establish Strickland prejudice
so,
on this record. To do
he would need to
introduce evidence to
that
prove
“sufficient mitigating evidence existed that
Dixon,
would have called for a sentence less than death.”
101 Ohio St.3d
328,
mitigation because $5,000 an investi- judge the trial ordered each “for application, defense counsel’s month, a The next the psychologist, mitigation expert.” a defense and gator, to pursue any competen- informed the trial court that there was no reason parties time, investiga- At that the asked defense counsel whether the cy judge issues. * * * tor, scientist, retained and mitigation expert forensic had “been [were] yes. at counsel said hard work.” Defense that various clearly they defense counsel stated had retained a present experts mitigation It for counsel not to at
experts. is unusual defense presenting expert testimony mitigation Yet we have never held that hearing. McGuire, See, State v. 80 Ohio St.3d per performance. e.g., is se deficient (1997) requirement is not “a (hiring mitigation specialist 686 N.E.2d assistance”). fact, depending expert’s findings, In on the such effective Therefore, trial for an ineffectiveness claim. counsel may grounds have been professional a mental-health may reasonably present have decided not Indeed, mitigation the the strategic day for reasons. before mitigation specialist that had had a full opportunity counsel reassured the court hearing began, “everything necessary present is explore mitigation experts in this case.” mitigation event, prejudiced In McKelton cannot show he was any information additional identify specific error. He does not
alleged information would have explain why would have uncovered or experts fact, impossible it would be to recommend a life sentence. prompted jury record, on evidence outside the showing relying him to make such a without Keith, 536-537, in a 79 Ohio St.3d appeal. is not direct permissible which N.E.2d 47. argument was Third, closing that defense counsel’s all the reasons it needed to vote virtually advocacy gave
“devoid of
arguments.”
during closing
afforded wide latitude
for death.” Trial counsel “are
512,
jurors’ give impose and to them reason trust mitigation hearing that the and emphasized determination edged jury’s guilt conduct. Given minimize McKelton’s to excuse or trying about two most crime, jurors only to consider he advised the severity of McKelton’s without imprisonment or life available to them: death sentencing options severe parole. *48 sentence, urged impose Counsel then the to a life stressing two
significant mitigating factors: McKelton’s “character and his background.” After reassuring jurors actions, the need not like McKelton or his counsel explained product that he was a upbringing his difficult and that he knew only drugs society.” how “to sell and be a menace to He argued McKelton could prison, function in if even he had not been able to “conform his conduct to the sentence, of a requirements society.” civilized With a life he would be able to guide his three children from away path. his own This closing argument advocacy was not devoid of and it did not invite Instead,
a verdict of death.
counsel
to
attempted
acknowledge
jurors’
the
likely
feelings about McKelton and his actions while still
them a
giving
spare
reason to
his life.
Viewed
context of the entire
closing,
objects
statements McKelton
part
to were
of a trial strategy
persuade
meant to
the jury
impose
to not
a death
Ahmed,
27,
further. He speculates
juror
that the
did not ask to
might
be
—who
excused—
have
been holdout but that she did not want to admit it on the record or in front
of the media. But trial counsel were in the
position
best
to evaluate whether
further voir dire
necessary
juror’s
ascertain the
true reason for refusing participate.
Murphy,
See
91 Ohio St.3d at
747 N.E.2d 765. And we
“generally will not second-guess counsel’s judgments
questions
about what
to ask
Johnson,
on voir dire.”
reject proposition Proposition No. 19 of Law Trial Court Bias:
F. that his trial was 19, argues of law No. McKelton In proposition {¶316} properly and failure to judge’s of the trial bias unfair as a result fundamentally of evidence. the presentation control claim, alleged proposi- cites the errors McKelton In of support “continuously 18, judge that the trial 13, 17, proof and 19 as 1 to
tion of law Nos.
prejudicial,
of
the admission
showing
permit[ted]
of
bias
point
and to the
claims that the
He also
inadmissible evidence.”
and otherwise
irrelevant
a death sentence.
imposing
when
considered
evidence
erroneously
judge
brief,
not
McKelton does
elsewhere
alleged
to errors
pointing
But short of
or bias.
judicial prejudice
of
proof
cite
additional
ones, are
even erroneous
rule,
rulings,
“a
adverse
judge’s
a general
As
318}
{¶
Fuerst, 134 Ohio
In re Disqualification
or prejudice.”
not evidence of bias
of
¶
Sanders,
1079, 14;
v.
G. Cumulative
21,
that his convictions
of law No.
proposition
320}
{¶
of cumulative error.
grounds
reversed on
should be
sentence
error,
reversed
“a conviction will be
of cumulative
the doctrine
Under
a fair trial
deprives
in a trial
defendant
effect of errors
when the cumulative
trial-court error does
instances of
of the numerous
each
though
even
233,
Powell,
St.3d
v.
132 Ohio
for reversal.” State
constitute cause
individually
{¶
“cannot become
But errors
of reversible error.
rose to the level
of which
Hill,
St.3d
v.
75 Ohio
of numbers.” State
weight
sheer
prejudicial
Frazier,
2007-Ohio-
(1996);
Ohio
see also State
viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
Jenks,
reasonable doubt.” State v.
(1991),
Ohio St.3d
{¶ Johnson both 326} testified McKelton had confessed to murdering Evans. Sneed testified that McKelton stated he had to murder Evans because only Evans was the one who could link And, McKelton to Allen’s murder. according Johnson, McKelton said he experienced with killing witnesses such as Evans. Johnson claimed that when a Crystal Evans, detective called looking for McKelton decided to kill Evans before the detective him. found Viewed in a light most favorable to the prosecution, juror a rational
could have found the essential elements of aggravated beyond murder a reason- able doubt based on this evidence alone. Weight
2. Manifest
To
claim,
evaluate a manifest-weight
we must
record,
review the entire
weigh the evidence and all
inferences,
reasonable
and consider the
of
credibility
all the witnesses.
v. Thompkins,
State
{¶ state’s evidence and 329} its reliance on informants as reasons to overturn his conviction. The against state’s case McKelton did not eyewitness include testimony, the weapon used to murder Evans, forensic evidence him linking to Evans’s body or the crime scene. But Johnson and Sneed did testify McKelton admitted responsibility for Evans’s murder. And contrary McKelton’s suggestion, we need not entirely infor- jailhouse are just these witnesses because
dismiss bolstered other evidence Indeed, of the informants is credibility mants. testimony. of their aspects that corroborates evidence, this is not in the state’s gaps there are Although ”
“
the conviction.’
heavily against
weighs
case in which the evidence
‘exceptional
Thus,
of law No. 13.
Id.,
reject proposition
at 175.
we
Martin
quoting
Proposition
Law No. 20
I. Settled Issues:
always reject
six oft-raised—and
presents
of law No.
Proposition
331}
{¶
scheme. McKelton
challenges
capital-punishment
to Ohio’s
ed—constitutional
law and
violate international
statutes
death-penalty
also
that Ohio’s
See,
125 Ohio
e.g., Fry,
claims.
reject these various
summarily
We
treaties.
Davis,
215-216;
1. two murder and aggravated count of of one McKelton was convicted {¶ 333} before However, merged were specifications these because specifications. death of the us: murder circumstance is before only aggravating one sentencing, in a criminal purpose preventing for the to an offense witness 2929.04(A)(8). R.C. proceeding. aggravating of this jury’s finding supports at trial The evidence saw that Evans Evidence indicated doubt. a reasonable beyond
circumstance body. On of her dispose helped Allen and that Evans murder wanted to discuss and said Crystal contacted February police and the state Crystal, was at home Evans. McKelton death with Allen’s later, Evans was days A few the conversation. that he overheard theorized murdering Evans admitted to later testified that McKelton Witnesses murdered. him to Allen’s death. connect who could only person he was because Mitigating Factors weigh We must the above aggravating against circumstance mitigating evidence about “the nature and circumstances of the offense” and character, 2929.04(B). “history, McKelton’s background.” addition, and R.C. we must statutory (B)(1) consider the mitigating factors under R.C. 2929.04: (victim (B)(2) inducement), (duress, coercion, (B)(3) (men- or strong provocation), (B)(4) defect), (B)(5) (lack tal disease or (youth), of significant criminal history), (B)(6) (B)(7) factors). (accomplice only), and (any other relevant
a. mitigation McKelton’s hearing At mitigation hearing, the presented defense three witnesses and McKelton’s unsworn statement. Kayla McKelton, McKelton’s'13-year-old daughter, described him as a
“great father” and a “family man.” She said that he protects her, cares her, motivates and promotes her education. He “has been the most important person in life” and she [her] does not “know what would do [she] without him.” gave opinion She her that her father is innocent and jury asked the to impose a life sentence. Audrey McKelton, mother, asked the to spare her
son’s in hopes life that God can save him and that he can save somebody else. She testified about McKelton’s childhood the projects. He was the second of Audrey’s children, four born when she was 14 or years father, old. His Calvin Johnson, McKelton, abused Audrey, ignored and did not support his family. Johnson left when McKelton was nine or ten years old. child, When McKelton was a Audrey was in prostitution involved
drugs. She was more concerned with drugs her than her children. She has assault, convictions for solicitation, crimes, felonious drug and trespassing, and she has been arrested for robbery. When she learned that McKelton selling drugs the projects, she was not concerned because she think did not he was hurting anyone. Instead, she believed he had glamour the life of and fame that she had wanted. Crystal Evans, the mother of McKelton’s son and the sister of Evans,
Germaine testified that she was “still in a state of shock” “having a lot of mixed emotions about the whole situation.” She did not want McKelton “to *52 get the death penalty” because generally she opposes the death penalty. She asked the to sentence McKelton to life prison. Finally, McKelton gave unsworn
{¶ statement. He 341} described how the arrival of crack in his neighborhood childhood changed his life forever. He first saw his mom get high when he on, was seven or eight years old. From then his he lived with years, For several absent, days. disappearing often
mother was the floor. slept where he on grandmother, his and, by age drugs, of selling was convicted brother to care for his money he made He used the drugs himself. selling was
McKelton house, and he him of her kicked out grandmother His and sisters. brother and undercover Later, drug dealers began robbing he drugs. to sell continued times, once in the several he has been shot McKelton said drug agents. federal have been murdered. of his friends brother and several of the head. His back death. since his brother’s to his mother has become closer McKelton women, relationship children, good and has three different by has three He son, who was relationship with his develop to He wants daughters. with his to teach an opportunity trial. He wants awaiting was incarcerated born while he homework, and to problems him with and help from to right wrong, his son acts as a father his life. McKelton also with something good him to do encourage street so them off the managed keep and has and three nieces nephews to four like” him. up have to end kids that don’t to “show [his] far. He wants life.” jurors sparing [his] to “consider McKelton asked Ultimately, lives. He noted of his children’s part to live and to be said that he wants He hope expressed term and prison an earlier during earned a GED he had I ever done” concluded, wrongdoings for all the sorry “I’m He attending college. I hurt.” ever everybody apologize “I would like and Weight mitigating factors b. under the falls mitigation presented McKelton All the evidence that are factors “any other character, background” and “history,
rubric and “the nature 2929.04(B)(7). about nothing mitigating findWe R.C. relevant.” statutory-mitigating offense,” of the and we see no evidence circumstances of 2929.04(B)(1)through in R.C. factors enumerated raised He was difficult childhood. of his presented evidence McKelton mother of abused the and a father who mother by very young projects in the was the time McKelton father had left son. His ignored and his children leaving often prostitution, engaged drugs His mother used old. years included criminal record themselves. Her to care for siblings and his McKelton By age solicitation, and felonious assault. convictions, trespassing, drug he enough, selling drugs. Soon grandmother with his living is entitled background His difficult criminal convictions. own list of had his weight. significant regarding good character some evidence also presented role positive to be a that he tries He said family members.
his closeness them by encouraging children, nephews, as to his nieces as well model to his *53 324 not to footsteps. follow in his McKelton’s desire maintain a relationship
his children weight. is entitled some statement, unsworn indicated for a college his desire term, past GED, noted that a during prison
education. He he had obtained ability personal which indicates his to function while in This prison. desire improvement weight. is also entitled to modest Finally, wrongs everyone for all his and to apologized he had However,
hurt. he did Margaret mention specifically Allen Germaine general Evans. We minimal assign weight expression McKelton’s remorse. Weighing 3. The circumstance of aggravating outweighs Evans’s murder the miti-
gating factors. McKelton has been convicted of a friend who murdering wit- nessed him By and cover a murder. helped up comparison, mitigating result, evidence is weak. As we find that the aggravating circumstances outweigh beyond mitigating factors reasonable doubt. Proportionalitg
4.
approved
“We have
death sentences in cases where the witness-murder
{H351}
present
in
specification
specification,
alone or
combination with one other
Turner,
mitigation
even when substantial
existed.”
v.
State
St.3d
Ohio
¶
III. CONCLUSION each reject We of McKelton’s propositions and affirm his convictions and sentence of death.
Judgment affirmed. O’Connor, C.J., French, JJ., O’Donnell, Kennedy, concur. J., concurs in in
Pfeifer, part part, and dissents with an opinion.
O’Neill, J.,
in
concurs
in
with an
part
part,
and dissents
opinion.
J., concurring
part.
Pfeifer,
part
dissenting
in
majority
the determination of
judgment
affirming
I concur
of the
join
regarding
inadequacy
I
dissent
guilt.
Justice O’Neill’s
that it
except
to the extent
relies on his
sentencing phase,
trial counsel
Unreasonable Assistance Professional trial, one month McKelton’s the state revealed that one of About before represented more than of the state’s undisclosed attorneys one witnesses, attorney issues trial. That ac- suggesting during conflict-of-interest but that he was reluctant potential his ethical conflict said knowledged was other two co-counsel could withdraw because he unsure whether McKelton’s later, him. all three defense counsel filed a effectively represent Two weeks appointment for of new representation, motion for leave to withdraw from counsel, prepare allow new trial. The and for continuance to counsel That attorneys relationship. in the complete attorney-client cited breakdown motion the removal of all requesting same McKelton filed handwritten day, trial, two court defense At a on the motions weeks before hearing counsel. the two remaining conflicted motion to withdraw. One of granted attorney’s counsel in attorneys, Supreme capital- certified Court as lead both the Ohio cases, with relationship murder the court and co-counsel’s McKelton told that his “effectively represent to the could no disintegrated point they longer had statement, claimed, McKelton, other speaking among him.” from a written for his attorneys “special experts” necessary not hired the things, that his had attorneys had remaining case. He that the two met death-penalty added presence had him in the only they pressured twice and that privately instead of guilty exchange parole, properly for life without plead officer to remaining of the case and to trial. He claimed that one investigating going * * * * take plea him a n r” after refused to attorneys called “dumb he with the aligned prosecu- asserted themselves agreement. He also tor. The court denied the motions to allow the remaining attorneys
withdraw. The court stated that preparations the case proceeding were in an orderly fashion and that McKelton attorneys had had three and four experts11 working on his ease. The court further pointed to the American Bar Associa- tion’s 2003 Capital Standards for Litigation and told McKelton that he had been given more than the minimum recommended defense team of two attorneys and mitigation However, one expert. the record before us shows the hiring only one investigator. The investigator worked primarily with the attorney conflicted prior to trial. capital-certified One attorneys met with the investigator June, once in and again day before trial. The other capital-certified attorney met with the investigator only on the day before trial. No other experts submitted bills after trial. At the mitigation hearing, the attorneys did not present any documen-
tary evidence of the sort that a mitigation trained specialist might find or provide.12 But I have no doubt that this evidence exists. The record shows that child, neglected as a when he exposed was also to his mother’s *55 drug use and prostitution. grew He toup become a violent and abusive adult. McKelton and a witness detailed instances of heavy alcohol use to response strong era, emotional stimuli. In the modern people who live such a life generate a paper trail. Yet at the mitigation hearing, attorneys McKelton’s presented only testimony the of daughter, mother, his his Crystal Evans, and the sister of victim Germaine Evans. arraignment before,
11. At eight the granted almost months the court investigator, funds to hire an a mitigation specialist, professional, experts. a mental-health and forensic 12. Mitigation specialists possess information-gathering clinical training and skills and that most lawyers simply They ability sensitive, do not have. have the time and the to elicit embarrass- ing abuse) humiliating (e.g., family and often evidence may sexual that the defendant have They never disclosed. recognize have the clinical things congenital, skills to such as mental or conditions, neurological may to understand how these conditions have affected the defendant’s development behavior, identify and appropriate experts and to the most to examine the testify Moreover, defendant or they may on his behalf. assuring be critical to that the client therapeutic cognitively obtains emotionally services that render him competent and to make concerning sound decisions his case. Perhaps critically, having qualified most mitigation specialist a assigned every capital to case integral part as an of presentation the defense team penalty insures that the to be made at the
phase integrated preparation is into the overall of being hurriedly the case rather than thrown together by guilty defense counsel still in shock verdict (Footnote omitted.) Appointment American Bar Association Guidelines for Performance Cases, Penalty 9.1, Counsel in Death Commentary, reprinted Guideline in 31 Hofstra of Defense L.Rev. 959
327
hire,
me,
attorneys
not
but
To
the record shows
did
hired, a
to
mitigation specialist
investigate
background,
have
should
mitigation
if the
professionals
specialist’s
addition to one or more mental-health
mitigat
a need.
our
of the
investigation
During
independent weighing
suggested
cases,
great
weight
factors in
we
cumulative
aggravating
prior
given
have
ing
use, violence,
of a
and abuse like
only
background
not
to direct evidence
alcohol
to a
expert
explaining
jury
to the
of an
testimony
capable
McKelton’s but also
on a
experience
social
that this
can have
psychological
effect
sort
Johnson,
518,
fetal alcohol A(2) importance. Accordingly, that at least one mandates that could of critical Subsection be (whether constituting the smallest team one of the four individuals member of the defense member) by training qualified experience person an additional be allowable team or team further psychological and recommend such screen or disorders or defects for mental investigation subject may appropriate. as seem of the 4.1, Guidelines, Commentary, reprinted (Footnote omitted.) Bar Guideline American Association in Hofstra at 956-957. 31 L.Rev.
328 Johnson, ”); State v. 87, 90, 24
ableness all the circumstances’ Ohio St.3d 494 (1986). 1061 And qualified N.E.2d without someone screen McKelton for the possible psychological consequences background, and social his hard-lived there cannot been the constitutionally guaranteed professional have reasonable (“counsel Strickland investigation. at a duty 691 has to make reasonable make a investigations or to reasonable decision that makes particular investiga- Herring, Accord State 165, tions unnecessary”). 2014-Ohio- ¶ reasons, I N.E.3d 76-77. For these would hold to prove professional satisfied his burden unreasonable assistance.
Prejudice I that the circumstances in exceptional believe case demand a legal Strickland, under Strickland. Under than rigid applied
standard less
the one
by
attorney,
accused is entitled to be assisted
“[a]n
whether retained or
to ensure that the trial is fair.” Id. at
appointed,
plays
necessary
who
the role
plays
by
686. Counsel
role
state’s
“the
subjecting the
case to
crucible of
Cronic,
United
States v.
meaningful
648, 656,
testing.”
adversarial
466 U.S.
attorney
role,
S.Ct.
somewhat different standard for
ineffective
determining
assistance
counsel
Hester,
I,
under Article
Sections 10 and 16
Constitution.
Ohio
'45 Ohio
There,
N.E.2d
we held that
test for
ineffective assistance
*57
Fifth,
Amendments,
of counsel under “the
and
Sixth
Fourteenth
and Sections 10
accused,
16 of
and
Article I
the Ohio
“whether
Constitution” was
under all
* * *
was done.”14
justice
circumstances,
a fair trial and substantial
basis,” likening
“on a case-to-case
this test
apply
at 79.
decided
Hester
We
Fourth Amend
exclusionary rule under the
of the
application
approach
selectively. And we
apply
Hester
empowered
are thus
Id. at 80. We
ment.
far,
having applied
too
floodgates open
these
letting
cautious in not
have been
in
century:
in
twice
the last
justice”
only
standard
“fair trial and substantial
(1922).
State,
626, 628,
the same in no reason- suggests record done because the case, justice” is “substantial typical It different. would have been proceeding of a that the outcome probability able however, circumstances, that an exceptional rare analytically possible is far below assistance fell so that counsel’s able to show may individual be unfair and basically minimum proceeding that the standards professional a proceeding outcome of suggests if the record substantially unjust, even circumstances, requires Hester In those different. not have been probably would trial. a new cases capital-murder application appropriate uniquely Hester is the result of when strongest are at their process the demands due
because interpretation States of the United preempts Hester on its two-part 14. The test Strickland Constitution, VI, cl. 2. Article States Constitution. United *58 330 399, 414, may Wainwright, be death. See Ford v. 106
proceeding
U.S.
S.Ct.
(1986)
2595,
“heightened-.concern
the
for
(discussing
L.Ed.2d 335
fairness
accuracy that
characterized
States Supreme
has
the
review of
[United
Court’s]
life”).
process
the
to the
human
This is
requisite
taking
especially
of a
true
counsel,
is predicated upon
guarantees
because Hester1s standard
both the
of
I,
Constitution,
Constitution,
10,
Article
and of
process,
Ohio
Section
due
Ohio
Hester,
heart,
I,
at
Article
Section 16.
45 Ohio
profoundly provide story with a detailed of the that I am that person they represented. attorneys convinced McKelton’s were to insufficiently go forward at the due to a prepared mitigation hearing profes- sionally inadequate investigation unexpected and the prior scramble of taking over I reasons, the work another seasoned trial For these attorney. no in jury’s have faith sentence. I not place recommended will the ends of justice justice reliable outcome—before means of context of —a reason, I capital-sentencing hearing. For that am entirely reversing comfortable McKelton’s death without that proof sentence strict the record counsel would have turned up mitigation expert silver-bullet evidence had hired to look me, it. enough for For it did not qualified is counsel hire an to look expert deciding present before not to I any “psycho-babble.” Accordingly, would apply Hester, sentence, reverse McKelton’s death for a mitigation remand new hearing. majority rejects The instead argument McKelton’s his attorneys failing
were ineffective for
complete
conduct a
into his back
investigation
ground prior to
mitigation.
majority does not limit or overrule our decision
165,
ary appeal
investigation,
mitigation
an adequate
failed to conduct
that counsel
things,
issue,
to hire “a
requested
and
funds
discovery on
leave to conduct
requested
expert.”
and a substance abuse
a neuropsychologist
ophthalmologist,
forensic
the most Cincinnati, a human he is dealers among drug what sounds like war starting trial, fair of a protections minimum constitutional being, guaranteed my sincerely hope I review. meaningful appellate adequate counsel and comes before appeal postconviction action when McKelton’s will take colleagues discretionary appeal, accept If we do not for consideration. the court involved, court by every have been denied will argument his ineffective-assistance without a single judge taking a critical look at the evidence outside of the record and determining trial attorneys whether his did or did not look for it. reasons, For these I dissent. J., concurs the foregoing opinion except as noted in separate
Pfeifer, opinion. Gmoser,
Michael Butler County Prosecuting Attorney, and Michael A. Oster Alkamhawi, Jr. Lina N. Assistant Prosecuting Attorneys, for appellee. Timothy Young, Defender, Ohio Public Troutman, and Rachel Vender, Allen Welch, Defenders, Shawn Assistant Public appellant.
The State ex rel. Coover et al. v. Husted et al.
Per Curiam. This is an expedited election case in which relators seek a writ of mandamus requiring respondents, Secretary of State Jon Husted and the boards Athens, of elections of (“the Meigs, and Portage Counties elections”),1 boards of County 1. The Walker, Athens McGuckin, Board of Elections includes Helen Ryan, Kate Ken Carpenter-Colvin. Meigs County Aundrea Williams, Board of Elections includes Charles E.