I. BACKGROUND
A. Planning and Preparation
{¶ 2} The case was tried to a jury. Much of the account of what happened came from Myers's friend and codefendant Timothy Mosley. According to Mosley, he and Myers began to concoct their scheme on January 27, 2014. That morning, Myers, who had just slept through the start of a new job, woke up Mosley and asked him whether he "wanted to make some money." When Mosley said he did, Myers suggested that they rob either a drug dealer he knew or "Justin Back's step dad, Mark [Cates]." Myers had once lived near Back's family. He and Back had attended seventh and eighth grades together and briefly had been friends until Back's mother told him he could no longer be around Myers. Myers had been in Back's home and told Mosley that Cates had a safe containing a gun and money that was "usually cracked open."
{¶ 3} Later that day, with Myers giving directions, Mosley drove them to the Waynesville area. As they approached Waynesville, Mosley realized that Myers had decided to rob Cates rather than the drug dealer.
{¶ 4} The two men arrived at the Cates house around noon. But when they got there, Back was at home, so they decided not to commit the robbery. Instead, they visited with Back for 15 to 20 minutes and then left. After leaving the house, Myers and Mosley went to the Waynesville library to discuss how to "get the money." According to Mosley, it was during this discussion that Myers "came up with the idea of killing Justin Back."
{¶ 6} Empty-handed, the two left the store, and Myers directed Mosley to a nearby pharmacy, where Myers asked a clerk for syringes. When Myers explained that he wanted the kind with needles, the clerk referred him to the pharmacist. They stood in line briefly at the pharmacy counter but walked out without syringes.
{¶ 7} Myers and Mosley returned to the Cates house later in the day and watched a movie with Back. When Cates came home from work, he joined them in watching the movie for a short time until he and Back had to leave for an appointment with a Navy recruiter. At that point, Mosley and Myers left the house and drove to a McDonald's in Waynesville.
{¶ 8} In the McDonald's parking lot, the pair plotted "what to do * * * to further the plans." As Mosley tells it, he proposed returning immediately to the Cates house and breaking in while Cates and Back were away. But Myers rejected that idea, reasoning that they did not know how long Cates and Back would be gone. Instead, they went to their friend Logan Zennie's house, driving past the Cates house "to scout it out." Later, Myers, Mosley, Zennie, and a fourth man, named Cole, went to Mosley's house.
{¶ 9} At Mosley's house, while Zennie and Cole watched television downstairs, Mosley and Myers went to Mosley's room to "[come] up with another plan on how to get the safe." As they talked, Mosley wrote down their ideas in a small notebook.
{¶ 10} They hatched a scheme to strangle Back with a wire and then take the safe. The idea was to make it look as though Back had stolen the safe and run away from home. They planned to "take whatever [they] thought Justin would take"-specifically his "clothes, money, phone and charger"-and dump his body in a remote wooded area.
{¶ 11} According to Mosley, Myers then suggested that they kill Cates as well. Myers proposed that they "mak[e] it look like [Cates] killed [Back] and * * * ran off." Mosley testified that he opposed this idea because it would involve more work and greater risk.
{¶ 12} Their planning session complеte, Mosley and Myers headed to a Lowe's store in Trotwood. Myers bought a three-foot length of galvanized steel cable and two metal rope cleats. Their intent was to fashion a garrote-or "choke wire" as Mosley called it-from these items by securing a cleat to each end of the cable.
{¶ 14}
The next morning, Myers and Mosley bought more supplies. Mosley suggested buying ammonia, because he believed from watching crime shows that "it would destroy any DNA." Myers had the idea of purchasing "septic enzymes." He explained to Mosley that the cold weather would slow the body's decomposition; he thought they could speed up the process
{¶ 15} The pair returned to Waynesville. Myers intended to commit the crime around 1:00 p.m. Needing to burn some time, they browsed an antiques store for a while. At 12:48 p.m., they bought gas for the car. After driving past the Cates house several times, they pulled in the driveway around 1:00. The plan, according to Mosley, was for Myers to distract Back while Mosley came up behind him. Myers would hold Back down while Mosley choked him to death with the garrote. Mosley stuffed the garrote into one of his pockets. He also was carrying a five- or six-inch pocketknife.
B. The Murder
{¶ 16} Myers knocked on the door. Back answered and let the pair in. The three men talked for a while. At some point, Back asked Myers whether he wanted a drink. Myers said he did, so Back went with him to the kitchen. Mosley "saw the opportunity" and followed them.
{¶ 17} Back opened the refrigerator and bent down to get the drink. As Back was straightening up, Mosley looped the garrote cable over Back's head from behind and crossed his arms to pull it tight. At the same time, Myers grabbed Back to restrain him. Mosley kicked Back's feet from under him, and all three fell to the floor, entangled.
{¶ 18} Mosley, however, had not been able to get the cable around Back's neck; instead, it was looped around his chin. As Back struggled for his life-which took "a good couple of minutes"-he repeatedly asked "[W]hy[?]" and pleaded with his assailants to stop. Myers tried to "calm him down" by saying something "[along] the lines of it's all right, it's almost over."
{¶ 19}
After Myers told Mosley that Mosley "had missed his throat and that [the wire] was wrapped around his chin," Mosley panicked, pulled out his knife, and stabbed Justin in the back. After that, Myers took hold of the garrote and managed to get it around Back's neck. Sitting on the on the kitchen floor with his
{¶ 20} After Back died, Mosley and Myers hunted for the safe, which they found in a closet in the master bedroom. But contrary to their expectations, it was locked. (Cates testified that although he had previously left the safe unlocked because he had lost the combination, someone had inadvertently locked it, and he had not opened it for some time.) Myers also found a handgun belonging to Cates, which he loaded.
{¶ 21} The pair returned to the kitchen where they cleaned up the crime scene using ammonia, small rugs from the kitchen floor, and assorted rags and towels. They wrapped Back's body in a blanket and shoved it in the trunk of Mosley's car. Then they ransacked the house, taking the safe as well as some jewelry and credit cards. Myers filled some bags with Back's clothing. They also filled a laundry basket with more clothes and other items, including Back's headphones, glasses, laptop computer, phone charger, and laptop charger. They stuffed the bloody towels, rags, and rugs into a garbagе bag. They loaded everything into Mosley's car and left the house by about 2:00 p.m.
{¶ 22}
Andrew Raymond, a next-door neighbor of the Cates family, saw Mosley's car in the Cateses' carport early that afternoon. A silver Chevrolet Cavalier, the car had a distinctive appearance, its entire
{¶ 23} While driving, Mosley developed "paranoia" about being followed, so he took side roads to a remote area, where he parked and checked the outside of the car for blood. Then he and Myers searched for Back's wallet, which they located in one of the bags. The wallet contained more than $100, which Myers took. The two continued on to Mosley's house.
C. Disposing of the Evidence
{¶ 24} Myers went into Mosley's house and rinsed the blood from his hands and arms. Meanwhile, Mosley unloaded stuff from the car to his bedroom. Together, they dragged the safe up the stairs and then changed their clothes. Mosley proposed dumping the body near West Alexandria, an area he knew well. That was fine with Myers, so they headed that way.
{¶ 25}
They decided to hide the body behind a log in a field near "Cry Baby Bridge" near the village of Gratis in Preble County. Mosley drove into the field, stopping about 20 feet from the log. The pair carried the body to the log and laid
{¶ 26} According to Mosley, Myers "wanted to shoot the body," so Mosley got the stolen gun from the car and handed it to Myers, who fired two shots into Back's body. The gun jammed on the third shot. Myers cleared the jam, ejecting the bullet to the ground, where it was later found by the police.
{¶ 27} After they hid the body, Myers suggested again that they kill Cates to make it look as if he had killed Back and disappeared. Mosley vetoed this idea. Instead, the men drove to a park in Brookville, where Mosley tossed Back's laptop into a dumpster. They then pulled into a nearby tavern parking lot to get rid of the iPod. Myers hid it in the gap between the windshield and the hood of a parked car.
{¶ 28} They bought a crowbar in Englewood and went back to Mosley's house to crack open the safe. Instead of the $20,000 that Myers had promised, the safe contained "[p]aperwork, loose change, bullets, gun accessories, and random items." Myers and Mosley separated out items that they thought they could sell. Afterward, they burned the papers, several trash bags containing evidence of the crime, and their bloody clothes in a fire pit in the back yard.
{¶ 29} Myers and Mosley put everything from the house and safe that looked valuable (including the gun, headphones, sunglasses, a coin collection, and a necklace) into a bag and took it to Zennie's house. Zennie let them store the bag in his safe in his bedroom. Myers, Mosley, and Zennie next drove to Tipp City, where they threw Cates's safe into a river.
D. The Investigation
{¶ 30} Cates came home from work around 3:30 p.m. that day. He realized that a table had been moved and that some rugs were missing. Later, he and his wife found that Cates's safe and handgun were missing. They called 9-1-1 and tried to contact Back. They discovered his cell phone in the house and also found the shoes that he always wore when he went out.
{¶ 31}
During the ensuing investigation, officers obtained a description of the car Raymond had seen in the Cateses' carport
{¶ 32}
The detectives interviewed Myers at the Clayton police station early the next morning, January 29. He denied knowing anything about Back's disappearance
{¶ 33} Myers admitted that he had been present when Mosley stabbed Back. He said that when he had gone to hang out with Back on January 28, he did not know that Mosley was going to kill Back. Nor did he know why Mosley had killed Back. Myers denied shooting Back's body, claiming instead that Mosley had done that.
{¶ 34} When the detectives interviewed Mosley again, he confessed, telling essentially the same story he later told at trial. Following Mosley's confession, the detectives interviewed Myers, who again changed his story. This time, he admitted shooting the body. He also acknowledged buying the materials to make the garrote, which he described as a "self-defense weapon" that was to be used only "to knock [Back] out," not to kill him. He continued to deny that he had restrained Back during the murder.
{¶ 35} That day, Preble County sheriff's deputies found Back's body near Cry Baby Bridge. The body was covered in white powder-later determined to be septic enzymes. A Montgomery County coroner autopsy determined that Back had died of multiple stab wounds.
E. Indictment, Trial, and Sentence
{¶ 36} Myers was indicted on nine counts:
Count 1 aggravated murder with prior calculation and design (R.C. 2903.01(A)) with three death-penalty specifications: kidnapping, aggravated burglary, and aggravated robbery (R.C. 2929.04(A)(7)) Count 2 aggravated murder - felony-murder (R.C. 2903.01(B)) with three death-penalty specifications: kidnapping, aggravated burglary, and aggravated robbery (R.C. 2929.04(A)(7)) Count 3 kidnapping (R.C. 2905.01(A)(2)) Count 4 aggravated robbery (R.C. 2911.01(A)(3)) with a firearm specification Count 5 aggravated burglary (R.C. 2911.11(A)(1)) with a firearm specification Count 6 grand theft of a firearm (R.C. 2913.02(A)(1)) with a firearm specification Count 7 tampering with evidence (R.C. 2921.12(A)(1)) Count 8 safecracking (R.C. 2911.31(A)) Count 9 abuse of a corpse (R.C. 2927.01(B)) with a firearm specification
{¶ 38} Myers now appeals to this court, presenting 18 propositions of law. We have examined each of Myers's claims and find that none has merit. Accordingly, we affirm Myers's convictions and sentence of death.
II. SHACKLING ISSUES
{¶ 39} We begin with Myers's ninth proposition of law, in which he contends that the trial court violated his due-process rights and denied him a fair trial by requiring that he wear leg shackles during the trial.
{¶ 40}
Before trial, Myers filed a motion to be tried without restraints. The trial court held a hearing on the motion. Major Barry Riley, the jail administrator, testified that the sheriff's office initially classified Myers as a "maximum security" inmate because he was charged with a "brutal, premeditated murder." Myers's security classification was later increased due to "jailhouse infractions," including destroying jail property and fashioning a rope from a cloth. (Myers claimed that he intended to use the rope as a belt, but Riley testified that such a
{¶ 41} On cross-examination, Riley conceded that there had not been a specific incident involving Myers in the courtroom or during transport. He also agreed that the shackles would probably make noise when Myers moved his legs.
{¶ 42} After Riley testified, a defense attorney stated that the defense did not "strenuously object" to leg shackles if the shackles could be concealed. The attorney explained that the defense was principally concerned about the use of handcuffs and belly chains.
{¶ 43} After the hearing, the trial court issued an order establishing security protocols. The court found: "Based on the evidence and arguments of counsel, * * * the nature of the proceedings and the specific security risks posed by this Defendant require a heightened level of security." Thus, the court ordered that Myers be transported to and from the courtroom in restraints to be determined by the sheriff's department. But the courtroom was to be cleared of the public before Myers entered, all restraints other than leg restraints were to be removed before the public was readmitted, and the courtroom was to be cleared at the close of the hearings prior to Myers's departure. The court further directed that a "modesty panel" be placed under both counsel tables to "obscure the leg restraints from the view of the jury." Finally, the court found that the protocols established by its order were the "least restrictive means of security and restraint available."
{¶ 44}
"No one should be tried while shackled, absent unusual circumstances."
State v. Neyland
,
{¶ 46} Indeed, Myers does not claim that his shackles were visible. Rather, he argues that the jury was aware of the shackles because they made noise. Significantly, at no time during the trial did anyone mention noise coming from the shackles. Having raised the subject during the hearing, trial counsel were well aware of the possibility that the shackles might make noise. We would expect, then, that trial counsel would have called any such noise to the court's attention. On the state of this record, Myers's claim that the jury was aware of the shackles is mere speculation.
{¶ 47} Myers further argues that he was prejudiced because the shackles prevented him from rising when prospective jurors entered the courtroom during voir dire. Before voir dire began, the court ordered that everyone already in the courtroom would remain seated when the prospective jurors were brought in so that Myers's shackles would not be seen. Nonetheless, Myers claims error based upon the following discussion that occurred outside the presence of the venire on the third day of voir dire:
[Defense counsel]: * * * Sorry, Judge, we're used to standing up when the Court comes in, especially when somebody says all rise. We stand up, they stand up, I know the court has indicated it's not necessary, there's a concern because Mr. Myers is shackled * * *, do you want us to just stay down? Because what I don't want to have happen is we all stand up and he doesn't stand up and then some juror goes he's being disrespectful.
THE COURT: What has been happening, is I've been coming in before the jury has been here and I know that you guys stand up and when we just entered the courtroom before, I mean the jury wasn't hereyet. The all rise was not supposed to happen. My plan is to be seated here and have everybody else seated here and when the jury comes in, everybody remains seated. If you stand up when the jury comes in, I will tell you to sit down.
[Defense counsel]: Fair enough, I just wanted some clarification on that Judge, thank you.
(Capitalization sic.)
{¶ 48} From this, Myers asks us to infer that "during the majority of voir dire , every time the [venire] came in and the bailiff said 'All rise,' all the attorneys stood up, but Myers could not due to the shackles." But, actually, the above passage provides no indication that this had happened more than the one time alluded to by the trial court. In any event, Myers claims prejudice, arguing that his failure to stand up for the venire's entrance when the attorneys were doing so made "a bad impression" on the prospective jurors. But nothing in the record suggests that the problem-assuming there was one-recurred after the trial judge clarified that counsel were not to rise for the venire's entrance. During trial, the jurors would have observed that nobody rose when they entered the courtroom, and any impression they may have formed as a result of Myers's failure to do so during voir dire likely had faded. Consequently, we see no likelihood that аny error that may have occurred during voir dire affected the verdict or sentence.
{¶ 49} Myers's ninth proposition of law is overruled.
III. SUPPRESSION ISSUES
{¶ 50}
In his third proposition of law, Myers contends that the trial court should have suppressed the statements he made to Detectives Michael Wyatt and Paul Barger on January 29. His principal claim is that he was subjected to custodial interrogation without being advised of his
Miranda
rights.
See generally
Miranda v. Arizona
,
A. Lack of Miranda Warnings for the First Interview
{¶ 51} After midnight on January 29, Sergeant Jeff Garrison of the Clayton police department and another Clayton police officer went to Mosley's house to locate Myers. Garrison cuffed Myers's hands behind his back, walked him outside, searched him for weapons, and placed him in the back seat of a cruiser. Garrison told Myers that "he was being detained for Warren County."
{¶ 53}
Myers emphasizes that the Clayton police detained him in handcuffs at Mosley's residence. Indeed, the trial court determined that Myers was in the custody of those officers during that time. But Myers was not interrogated and made no statements during that period. "[I]n conducting the
Miranda
analysis, we focus on the time that the relevant statements were made."
United States v. Swan
,
{¶ 54} A Clayton officer drove Myers to the Clayton police station, with Wyatt and Barger following. At the station, Myers was removed from the cruiser. When Wyatt noticed that Myers was handcuffed, he asked the Clayton officer to take off the cuffs, and they were removed before Myers entered the building. Wyatt and Barger took Myers into a confеrence room, where the three of them sat at a table with Wyatt farthest from the door. Myers sat on Wyatt's right, closer to the door; Barger sat across the table from Myers. The door was initially closed, but at some point during the interview it was opened and was left open for the rest of the interview.
{¶ 55} This first interview, which was audio recorded, began at 3:07 a.m. Wyatt did not give Myers Miranda warnings at this time. Rather, at the start of the interview, Wyatt said: "Like I told you * * * we appreciate you * * * coming down here and * * * like I told you, you're free to go at any time . You're not under arrest or anything else." (Emphasis added.) When Myers said that he had been confused, because the Clayton officers had told him he was being "detained," Wyatt repeated: "You understand, though, you're not under arrest * * *." (Emphasis added.)
{¶ 56} During the interview, Myers claimed to know nothing about Back's disappearance or the robbery of the Cates residence. The interview ended at 3:54 a.m., and Myers was driven back to Mosley's house.
The fundamental import of the privilege [against self-incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated . * * * Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
{¶ 57}
"What are now commonly known as
Miranda
warnings are intended to protect a suspect from the coercive pressure present during a custodial interrogation."
Cleveland v. Oles
,
{¶ 58}
The trial court found that Myers was not in custody during the first interview, and we agree. When Wyatt noticed that Myers was handcuffed, he immediately had the cuffs removed, remarking that Myers was "here voluntarily." Myers was questioned in a conference room instead of an interrogation room,
see
United States v. Littledale
,
{¶ 59}
Moreover, Myers was expressly informed at the beginning of the interview that he was not under arrest and was free to leave at any time.
See
Swan
,
{¶ 60} A reasonable person, having just been released from handcuffs and expressly told that he was there voluntarily and was free to leave, would not have understood himself to be in custody. Miranda warnings were not required.
B. Validity of Miranda Waiver
{¶ 61} Myers had four more contacts with Wyatt and Barger on January 29.
{¶ 62} After the first interview with Myers, Wyatt and Barger interviewed Mosley and then Zennie. During Zennie's interview, Wyatt learned that Mosley had told Zennie that Myers had shot Back and Mosley had stabbed him. Wyatt instructed the Clayton officers at Mosley's house to detain both men. Myers was taken back to the Clayton police station around 7:40 a.m., placed in a holding cell, and handcuffed to a bench.
{¶ 64} At 9:27 a.m., Myers tapped on the window in the holding cell, summoning Wyatt. Myers expressed a desire to help Wyatt, but Wyatt told him he could not talk to him or question him. Myers then asked Wyatt how he would go about getting an attorney. Wyatt told him that he could hire his own but that if he could not afford to do so, the court would appoint counsel when he was charged. Myers asked whether he was going to be charged, and Wyatt said that he would be.
{¶ 65} Myers tapped on the window again at 10:02 a.m. When Wyatt responded, Myers told him he wanted to do what he could to help him. Wyatt asked whether that meant Myers wanted to talk to him. Myers nodded his head. Wyatt read Myers the Miranda warnings again and asked him whether he understood them. Myers said: "I think so." Wyatt asked: "Do you think so or do you understand?" Wyatt continued: "Basically what it amounts to is you can exercise those rights at any time. If you want to start talking and then stop you can do that. * * * Do you have any questions about it because I want to make sure you fully undеrstand your rights?" Myers said: "Yeah. I do." Wyatt asked: "You do?" Myers said: "Yeah." Wyatt clarified this discussion at the hearing on Myers's motion to suppress: "The question was do you understand your rights and he said yes, I do." Myers then proceeded to answer Wyatt's questions, giving an account of how Mosley had killed Back.
{¶ 66} At about 1:30 p.m., Wyatt and Barger spoke with Myers for a fifth time. Wyatt read the Miranda warnings for the third time; Myers indicated that he understood them and answered Wyatt's questions.
{¶ 67}
The 10:02 a.m. and 1:30 p.m. interviews of Myers were preceded by
Miranda
warnings. Myers nevertheless claims that the statements he made in those interviews should have been suppressed. He argues that he never validly waived his rights because (1) he was not given the
Miranda
warnings in written form (Wyatt read them from a card he carried), (2) Wyatt did not expressly ask
{¶ 68}
None of these objections are well taken. A
Miranda
waiver need not be in writing to be valid.
North Carolina v. Butler
,
{¶ 69} The state made that showing here. At the outset of the 7:42 a.m. interview, Wyatt read the Miranda warnings to Myers, and Myers acknowledged that he understood his rights. Myers's invocation of his right to counsel further demonstrates his understanding.
{¶ 70}
The 10:02 a.m. interview took place after Myers summoned Wyatt and said he wanted to talk to him. Wyatt then read the
Miranda
warnings again. After stating that he fully understood the warnings, Myers proceeded to answer Wyatt's questions. Because Myers was informed of his
Miranda
rights and indicated that he understood them, his uncoerced statements to Wyatt validly established an implied waiver.
Butler
at 373,
{¶ 71} At the beginning of the 1:30 p.m. interview, Wyatt read the Miranda warnings again, and Myers again said that he understood his rights and voluntarily spoke to Wyatt. Again, his uncoerced statements under these circumstances were enough to establish a waiver.
C. Denial of Counsel
{¶ 72} Myers also contends that his later statements should have been suppressed because after he invoked his right to counsel, he was interrogated without counsel being appointed.
{¶ 73}
Myers notes that he was never "given" an attorney on that day. "
Miranda
does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one."
Duckworth v. Eagan
,
{¶ 74} That is precisely what happened here. Wyatt terminated the 7:42 a.m. interview when Myers invoked his right to counsel shortly after the interview began. Less than two hours later, Myers summoned Wyatt and asked how he would go about getting an attorney. Wyatt told him he could hire one or one would be appointed for him after charges were filed. No questioning took place at this point.
D. Voluntariness
{¶ 76} Finally, Myers contends that his statements were involuntary under the totality of the circumstances.
{¶ 77}
"In deciding whether a defendant's confession is involuntarily induced, the court should consider the totality of the circumstances * * *."
State v. Edwards
,
{¶ 78} Myers claims he was deprived of food and sleep during the interrogation. But the record does not support Myers's claim. Myers never indicated that he was hungry or asked for anything to eat until after the end of the final interview on January 29.
{¶ 79} Nor is there any evidence that Myers was deprived of sleep. Toward the end of his first interview, Myers stated that he was "very tired" and wanted to go back to Mosley's house to sleep. Within a few minutes, Wyatt terminated the interview and a Clayton police officer took Myers back to Mosley's house. When Mosley did not want Myers inside the house, Myers was allowed to sit in the back of Sergeant Garrison's SUV to keep warm. He fell asleep there. Wyatt testified that when he returned to Mosley's house to have Clayton police bring Mosley back to the police station, Myers appeared to be sleeping. Although the record indicates that Myers was not asleep during the entire time he was in the SUV, there is no suggestion that anyone prevented him from sleeping at any time.
{¶ 80}
Myers had additional time to sleep in the holding cell at the Clayton police station between 7:46 a.m. and 1:30 p.m. During that time, the police left him alone, except when he initiated contact with them. The holding-cell video
{¶ 81} Finally, there is no indication of any other form of police overreaching. Myers was given water and escorted to the bathroom when he requested it. He was not harmed, threatened, or promised anything. We conclude that Myers's statements were voluntary.
{¶ 82} Because the record supports none of Myers's claims and arguments in favor of suppression, we overrule his third proposition of law.
IV. DISCOVERY AND RELATED ISSUES
A. Delayed Disclosure and Brady Claim
{¶ 83}
In his fourth proposition of law, Myers contends that the state violated his right to a fair trial by failing to provide timely discovery and by delaying disclosure
{¶ 84} On September 22, 2014, the first day of voir dire, defense counsel complained to the trial court that the state had provided large amounts of "additional discovery" since September 2. Among other things, counsel objected to the timeliness of the prosecution's disclosure that Mosley would be testifying for the state and that it planned to introduce a small notebook kept by Mosley. The notebook listed supplies the pair would need for the murder ("crowbar," "wire," and "duct tape") along with notes about their plan ("strangle," "no mess," "take clothes, money, phone, charger," "disappear," "state: figure out as we go," "woods: no public," "wrap up in blanket"). Myers asserts that the late disclosure of Mosley's planned testimony and the notebook amounted to "trial by ambush" and that he was deprived of a meaningful possibility of investigating and challenging the veracity of the notebook's contents.
{¶ 85} The prosecutor maintained that all discovery was turned over as soon as it became available to the state. Regarding Mosley's plea agreement, which required that he testify against Myers, the prosecutor said that Myers's defense counsel had been told of the plea agreement as soon as it was agreed upon. One of Myers's defense attorneys candidly admitted to the trial court, "I told [the prosecutor on September 2] I didn't think I needed a continuance. I had * * * Mr. Mosley's recorded statement from the Clayton Police Department, which was given to us in the initial discovery dump." The defense attorney explained that at the time he said that to the prosecutor, he believed that he had "ample time to prepare for Mr. Mosley's testimony."
{¶ 86}
As for the notebook, the prosecutor explained that it was only after Mosley agreed to plead guilty and the prosecutor starting preparing Mosley for
{¶ 87} Under Crim.R. 16(L), the court has discretion to regulate discovery. Here, the court preliminarily determined that any items turned over after September 16 would not be admitted during trial "unless we have a hearing outside the presence of the jury with regard to that specific evidence as to why it should be admitted due to the lateness of both the collection and the obtaining of the information." Defense counsel did not object to the court's approach, and Myers has not directed us to any instance when he objected to evidence offered during trial-other than the notebook-on the basis of its having been turned over late in discovery. As for the notebook (and as we will also discuss regarding the next proposition of law), the trial court did hold a hearing regarding its admissibility prior to Mosley's testimony. The trial court concluded that its admission was not barred by any discovery violations and that it "was turned over to the defense as soon as practical under the circumstances." We conclude there was no abuse of discretion here.
{¶ 88}
Myers also maintains that the state improperly failed to timely disclose exculpatory evidence.
See
Brady
,
{¶ 89} Myers has demоnstrated no abuse of discretion with respect to any discovery matters in the case or any alleged Brady violations. We overrule his fourth proposition of law.
B. Denial of a Continuance
{¶ 90} In his fifth proposition of law, Myers contends that in light of the state's allegedly late disclosure of evidence, the trial court should have granted his request for a continuance.
{¶ 92}
"It is a basic due process right and indeed essential to a fair trial that a defense counsel be afforded the reasonable opportunity to prepare his case."
State v. Sowders
,
{¶ 93} We conclude that the court did not abuse its discretion here. As discussed above, the court told the parties that any items turned over late in discovery-including the notebook-would be inadmissible unless a further hearing was held. A hearing regarding the notebook was held the afternoon before Mosley testified-more than three days after the notebook had been disclosed. At the hearing, defense counsel challenged the admissibility of the notebook but did not renew the request for a continuance. There is no indication that the timing of the disclosure cоmpromised Myers's ability to defend himself. Myers is unable to show prejudice, and the trial court did not abuse its discretion by denying the request for a continuance. We overrule Myers's fifth proposition of law.
C. Denial of Handwriting Expert
{¶ 94}
After the trial court denied Myers's motion for a continuance, the defense moved for the appointment of a handwriting expert to determine whether Mosley had in fact written the notes in the notebook. In his seventh proposition of
{¶ 95}
"[D]ue process may require that a defendant be provided * * * expert assistance when necessary to present an adequate defense."
State v. Mason
,
V. VOIR DIRE
{¶ 96} In his 14th proposition of law, Myers raises two claims with respect to the voir dire.
A. Caldwell Error
{¶ 97} Myers complains that during the death-qualification process (which was conducted in panels), the prosecutor asked a prospective juror whether he "could return a recommendation for death." The defense objected, and the trial court instructed:
Ladies and gentlemen, [the prosecutor] has twice now used the term recommendation. It's not a recommendation, it's a verdict. Any verdict that is rendered by you should be considered by you as if it is absolute and will be carried out in this case. * * * [S]o don't take what the attorneys say in this case as being the facts or the law. You'll get that later in the proceedings.
Myers contends that the prosecutor's use of "recommendation" impermissibly diminished the jury's sense of responsibility,
see generally
Caldwell v. Mississippi
,
{¶ 98} But Myers can demonstrate no prejudice as a result of his claimed error. None of the prospective jurors on the panel at the time of the alleged error ultimately served on the jury.
B. Excusal for Cause
{¶ 99} Myers also contends that the trial court erred by excusing prospective juror No. 163 for cause.
{¶ 101}
The prosecutor later asked several prospective jurors whether they "could follow the Court's instructions and return a verdict of death" if they found beyond a reasonable doubt that the aggravating
Well, I mean, I feel like I can follow the law, but I feel, I just-I mean, the way I feel this way like about a death penalty and I mean, I always felt like if someone did something wrong, they should pay the price for it, but I tell you when I walked in there yesterday and saw that kid sitting there, I just, I don't know what to do . I just relate that to my own children and think, I mean, I can't explain it any different.
(Emphasis added.) Later the prosecutor asked: "Do you feel like * * * he's too young and that under no circumstances you could return a verdict of death, even if you believed that the aggravating circumstances outweighed the mitigating factors?" Prospective juror No. 163 said: "I think it [would] be extremely hard for me to decide because I know my heart says [yes] because of his age."
{¶ 102} The prosecutor then asked: "Do you feel like your ability * * * to fulfill your responsibilities as a juror would be substantially impaired by your convictions as to Mr. Myers['s] age?" She answered: "[M]y head still says I want to say no to that but my heart says yes , I would have a really hard time getting past that." (Emphasis added.)
{¶ 103} Defense counsel later asked her: "[I]f the Judge gives you certain options and asks you to follow the law, * * * [do] you think that you're able to do that?" She replied: "I will do it to the best of my ability and I will follow the law. My heart might not want to do that, but I can-I mean, I think it would be troublesome, but you know, but-."
{¶ 104}
Defense counsel then asked: "Would you agree that there are other things in your life that are very difficult perhaps that you may not want to do, but you follow your duty to do those?" Prospective juror No. 163 agreed that this was so, but she added: "But I never had to do something like that. * * * I'm in the
{¶ 105} The state challenged prospective juror No. 163 for cause. The defense opposed the challenge on the ground that "she had indicated by the end of the questioning that she was able to perform her duty with respect to acting as a juror."
{¶ 106} The trial court noted that prospective juror No. 163 "did break down crying at least on a couple of occasions during her testimony. * * * I think she cried throughout the process, [and] looked down, particularly when the questions were directed to her." Though the court recognized that she had said that she could perform her duty, the court observed that "she was crying even as she answered that question and I don't think that that answer represents the totality of her answers to the question." Concluding that "her emotional state would substantially impair her ability and that she cannot unequivocally state that she will follow the law," the trial court excused prospective juror No. 163 for cause.
{¶ 107}
A prospective juror may be excused for cause if the prospective juror's views on capital punishment
{¶ 108}
Myers argues that the record does not support the trial court's ruling here. Myers argues that prospective juror No. 163's answers "showed she was unbiased," while her tears indicated only that she understood the gravity of a death sentence. The trial court, however, was in the best position to consider her emotional reactions in ruling on the challenge for cause.
See
State v. Lawrence
,
{¶ 109}
When asked whether her feelings would substantially impair her ability to perform her duty, prospective juror No. 163 said: "[M]y heart says yes." And while she did ultimately state that she would follow the law and do her duty, only once was she able to say so without qualification. At other times, she said: "I just don't know"; "I feel like I can follow the law, but * * * when I walked in there yesterday and saw that kid sitting there, * * * I don't know what to do"; "But I never had to do something like that"; and "I will do it to the best of my ability
{¶ 110}
"[W]here a prospective juror gives contradictory answers on voir dire, the trial judge need not accept the last answer elicited by counsel as the prospective juror's definitive word."
State v. Group
,
{¶ 111} Because Myers's claims with respect to the voir dire lack merit, we overrule his 14th proposition of law.
VI. EVIDENTIARY ISSUES
A. Admissibility of Mosley's Notebook
{¶ 112} Myers's eighth proposition of law challenges the admission of Mosley's notes into evidence. He argues that the notebook was "improperly examined," that it was inadmissible character evidence, and that its probative value was outweighed by the danger of unfair prejudice. We reject each of these claims.
1. "Improperly Examined"
{¶ 113} Before Mosley's direct examination, the trial court questioned him outside the jury's presence under oath to determine the notebook's admissibility. The judge said to Mosley, "Tell me the circumstances under which you wrote this." Mosley testified that he had written the notes while in his room with Myers "planning to kill Justin Back." He said the notebook was in the same condition as it had been when he wrote the notes and that he did not recall what had happened to pages that had been torn from the notebook.
{¶ 114}
Myers complains that the trial court's inquiry was leading and
{¶ 115} Myers also complains that four pages were torn out of the notebook at some point and contends that the missing pages "had an altering effect on the writing." But nothing in the record demonstrates that the missing pages altered the writing on the portion that was admitted.
{¶ 116}
Mosley's testimony was "sufficient to support a finding that the matter in question [was] what its proponent claim[ed]." Evid.R. 901(A) ;
see also
2. Character Evidence
{¶ 117} Myers also argues that Mosley's notes were "improper character evidence," Evid.R. 404(A), and prejudiced him by depicting him as "unstable" and "generally dangerous." This is simply false. Neither the notes nor the testimony they corroborated were used to prove Myers's character "for the purpose of proving action in conformity therewith on a particular occasion." Evid.R. 404(A). Indeed, the notes were not used to prove his character at all; they were used to prove that Myers planned the murder, thus supporting the element of prior calculation and design.
3. Probative Value vs. Unfair Prejudice
{¶ 118} Finally, Myers argues that the notebook should have been excluded under Evid.R. 403(A), which requires exclusion of evidence whose "probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Myers claims that Mosley's notes "were not probative, because they did not go to [Myers's] identity as an accomplice." He also argues that because he did not write the notes, they were not probative of prior calculation and design.
{¶ 119} Contrary to Myers's assertions, Mosley's notes were highly relevant: they corroborated Mosley's account of the planning session he and Myers conducted before the murder. Mosley's testimony was the only direct evidence on this point, so the corroboration provided by his contemporaneous notes had strong probative value. And they created no danger of unfair prejudice, confusion, or misleading the jury.
{¶ 120} We overrule Myers's eighth proposition of law.
B. Leading Questions on Direct Examination
{¶ 121} In his 13th proposition of law, Myers argues that the prosecutor improperly asked leading questions during the direct examination of several state witnesses. See Evid.R. 611(C).
{¶ 122}
Although Myers cites transcript pages on which leading questions appear, he fails to identify any specific questions that he claims to be objectionable. Only one of the cited pages records a defense objection. Mosley testified that after leaving the Cates house the day before the murder, he and Myers briefly discussed their robbery plans, then drove past the Cates house "to scout it out," and finally "hopped on the highway" and drove back to Zennie's house. The
{¶ 123}
Although the question was leading, the trial court did not abuse its discretion by permitting it.
See
State v. Diar
,
{¶ 124} Defense counsel did not object to any other questions found on the transcript pages cited, so Myers has forfeited all but plain error. See Crim.R. 52(B). Because Myers does not identify specific questions as improper, we can neither evaluate his claims of error nor assess prejudice. Thus, Myers fails to demonstrate plain error. His 13th proposition of law is overruled.
C. Autopsy Photographs
{¶ 125} Myers contends in his 15th proposition of law that the trial court erroneously admitted repetitive and gruesome photographs of Back's body. He concedes, however, that his counsel did not object at trial to admission of the photographs. Thus, he has forfeited all but plain error. See Crim.R. 52(B).
{¶ 126} We have held:
Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or * * * illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.
State v. Maurer
,
{¶ 127} Aside from a statement in his brief that the photographs were "repetitious and gruesome" and "inflamed the jury's emotions and distracted them from reviewing contested issues," Myers offers no analysis to show which photographs were repetitive, why their prejudicial effeсt outweighs their probative value, or how they constitute plain error.
{¶ 128}
A transcript citation in Myers's brief indicates that he is challenging the autopsy photographs used during the deputy coroner's testimony. Of these photographs, State's Exhibits 359, 364 through 377, and 383 through 391 are gruesome, but not unnecessarily so. They illustrated and supported the coroner's
{¶ 129} Two pairs of autopsy photographs are arguably repetitive. State's Exhibits 367 and 374 both depict Back's left torso and head from slightly different angles, and it is not clear that either one has probative value not also found in the other. State's Exhibits 366 and 372 also appear to be repetitive. The deputy coroner testified that Exhibit 372 features "two wounds that we've already seen" in Exhibit 366. With those exceptions, the autopsy photos are not repetitive or cumulative.
{¶ 130}
The admission of two pairs of repetitive photographs in this case does not constitute plain error. A showing
VII. SUFFICIENCY AND WEIGHT OF THE EVIDENCE
{¶ 131} Myers's 11th proposition of law asserts that the evidence of guilt at his trial was legally insufficient as to each count and also that his convictions are against the weight of the evidence.
A. Sufficiency
1. Aggravated Murder
{¶ 132}
Myers contends that "[t]here was no credible evidence" showing that he engaged in prior calculation and design preceding Back's murder. But when evaluating the sufficiency of the evidence, we do not consider its credibility. "Rather, we decide whether, if believed, the evidence can sustain the verdict as a matter оf law."
State v. Richardson
,
{¶ 133}
"Prior calculation and design" requires "a scheme designed to implement the calculated decision to kill."
State v. Cotton
,
{¶ 134} Myers emphasizes that he did not know that Mosley had a knife until Mosley pulled it out and began stabbing Back. With respect to prior calculation and design, however, this is beside the point. That the murder was not accomplished in precisely the way he and Mosley had planned does not alter the fact that they did plan it.
{¶ 135} Myers also points to Mosley's statement that "[a]t the moment where [Myers] brought up the money and the safe, we had no intentions of killing anybody." But this testimony affects neither the sufficiency nor the weight of the evidence of prior calculation and design. Even if the initial plan was to, as Mosley put it, "get in and get out" and simply rob the Cates house, Mosley's testimony was that Myers later "came up with the idea of killing Justin Back," after their first visit to Back's house on January 27. The pair spent the better part of the day and next morning planning and preparing for the murder.
{¶ 136} Myers argues that he did not buy the cold medicine, "bug wash," or syringes. But he tried to purchase these things, and that fact evinces prior calculation and design. He points out that the notebook belonged to Mosley and asserts that it contained only Mosley's thoughts, not those of Myers. But that assertion is inconsistent with the evidence: Mosley testified that his notes reflected their mutual planning and discussion. In short, none of Myers's arguments demonstrate that the evidence of prior calculation and design was insufficient as a matter of law.
2. Kidnapping
{¶ 137} Myers claims that the state failed to prove kidnapping, specifically the element of restraint, because "[t]he acts constitut[ing] the kidnapping had no significance apart from the murder offenses."
{¶ 138} Either way, Myers's claim is moot. The trial court merged his conviction on the kidnapping count with his convictions on the aggravated-robbery and aggravated-burglary counts. The court also merged the three felony-murder specifications into a single robbery-murder specification before submitting the case to the jury in the penalty phase. Thus, Myers was not separately punished for kidnapping.
{¶ 139} Myers contends that the state failed to prove aggravated robbery, aggravated burglary, grand theft of a firearm, evidence tampering, safecracking, and abuse of a corpse, because the state made "no showing that Myers knowingly participated with Mosley" in these acts. He offers no further analysis. We reject these claims: Mosley's testimony and other evidence presented by the state was sufficient to show that Myers acted with the requisite mens rea as to each of these offenses.
B. Manifest Weight of the Evidence
{¶ 140}
A verdict can be against the manifest weight of the evidence even though legally sufficient evidence supports it.
State v. Robinson
,
{¶ 141} Mosley's plea bargain obviously affects his credibility. But the state's evidence was unrebutted, so there were few if any conflicts in the evidence for the jury to resolve. Moreover, Mosley did not try to minimize his culpability-he admitted that he was the one who stabbed Back-and much of his testimony as to his and Myers's actions during January 27 and 28 was corroborated by other witnesses, store receipts, and security videos. In addition, the jury was told about Mosley's plea bargain and could use that information in assessing his credibility.
{¶ 142}
" 'The discretionary power to grant a new trial' " on manifеst-weight grounds " 'should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins
,
VIII. PROSECUTORIAL MISCONDUCT
{¶ 143} In his tenth proposition of law, Myers contends that the state engaged in prosecutorial misconduct in closing argument during both phases of trial.
{¶ 144}
Myers maintains that the two prosecutors who presented the state's
1. Vouching
{¶ 145}
It is improper for a prosecutor to vouch for the credibility of a witness at trial. Vouching occurs when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue.
See, e.g.
,
State v. Jackson
,
{¶ 146} Myers contends that one of the prosecutors vouched for Mosley's credibility in closing argument. He points to the following statements:
Did [Mosley] have an opportunity to see the things about which he was testifying? He certainly did. Was he consistent? Yes he was. What was his demeanor like? When he came forward * * *, he was very forthcoming.
* * *
* * * [I]t's not inconsistent when somebody gives a statement and then at a later point they're asked for further detail and they respond honestly to that furthеr detail and that's what we have in this case. Especially when those details are corroborated again by independent evidence.
{¶ 147} None of these comments were improper: they neither implied knowledge of out-of-court information nor placed the prosecutor's own credibility in issue. Instead, the prosecutor's arguments pointed out the strength of Mosley's testimony based on evidence presented in court, not the prosecutor's personal opinion. Each of the comments at issue dealt with considerations that the jury could properly consider in evaluating Mosley's credibility: his demeanor, consistency, and opportunity to observe, as well as the extent to which other evidence corroborated his testimony. Thus, we reject Myers's claim of misconduct by vouching.
{¶ 148} Myers further contends that the prosecutors misstated the evidence in two instances.
{¶ 149}
First, Myers points to a prosecutor's statement: that "[a]s Myers tried to restrain [Back], Tim Mosley tried to choke him to death. * * * And when that failed, they turned to the knife." Because the evidence showed that only Mosley stabbed Back, Myers contends that the word "they" was improper. But "[i]solated comments by a prosecutor are not to be * * * given their most damaging meaning."
State v. Osie
,
{¶ 150} Second, Myers contends that the other prosecutor misstated the evidence when he said, "And as [Back is] simultaneously being held down by Austin Myers and strangled and stabbed by Tim Mosley, he keeps asking the same question over and over and over again. Why? Why? Please help me. Austin please stop."
{¶ 151} As Myers points out, Mosley did not testify that Back addressed his dying pleas specifically to "Austin" by name. Instead, Mosley testified, "Justin was trying to ask us why, he was pleading to stop and pretty much begging for his life."
{¶ 152} But Myers ignores his own statement to police made the day aftеr the murder. Myers admitted that as Mosley was trying to strangle Back, Back said "Please stop" and " Austin , help me." (Emphasis added.) The difference between Myers's version and the prosecutor's was trivial. We conclude that Myers has not demonstrated plain error with respect to these comments.
3. Shifting Burden of Proof
{¶ 153} Myers also contends that the prosecutors' argument improperly shifted the burden of proof to the defense on two occasions.
{¶ 154} First, he asserts that the prosecution "improperly made comments that impl[ied] the jury needed to know what Myers was thinking at these proceedings, during and after the alleged murder of Justin Back." But Myers supplies no examples of such comments and provides no citation to the record in support of his contention.
{¶ 155}
Second, Myers complains that one of the prosecutors pointed out that Myers had first told police that he was not present during Back's murder and had
{¶ 156} Myers's reading of the state's argument is a stretch. The prosecutor was noting that Myers had initially denied being at the murder scene before changing his story. Pointing out this fact implied nothing about an alibi defense. Nor did it shift the burden of proof. Myers has not demonstrated error.
4. "Sworn Duty" Statement
{¶ 157} Myers additionally argues that one of the prosecutors acted improperly in telling the jury in closing argument, "But, ladies and gentlemen, it's your sworn duty as jurors, based on the overwhelming evidence and the law, to find Austin Myers guilty of all of the charges." In Myers's view, the reference to the jury's "sworn duty" was improper because it implied that the jury had a duty to convict "in order to serve justice and protect society."
{¶ 158}
It is not improper for a prosecutor to call on the jury to do its duty by convicting the defendant. "It [is] the jury's duty to convict if the evidence proves guilt beyond a reasonable doubt."
State v. Hicks
,
5. Reference to Punishment during Guilt-Phase Argument
{¶ 159}
Finally, Myers contends that the state improperly referred to punishment in the guilt phase by stating: "Your verdict at this time is not about
{¶ 160}
Because "discussion of the death penalty [is] irrelevant" in the guilt phase, it is erroneous for a prosecutor to make references to the death penalty in guilt-phase closing arguments.
State v. Brown
,
B. Penalty Phase
1. Reasonable-Doubt Argument
{¶ 161}
During the penalty-phase closing argument, one of the prosecutors attempted to distinguish between the margin by which the aggravating circumstance
The State has proven its aggravating circumstance beyond a reasonable doubt, but in this sentencing phase, it is not a matter of proven beyond a reasonable doubt in comparison to the mitigating factors . In this phase, beyond a reasonable doubt is a measure of your conviction, that you are firmly convinced that the aggravating circumstance outweighs the mitigating factor[s]. I know that sounds somewhat confusing, but what's important to consider is you don't have to find that the aggravating circumstance outweighs the mitigating factors by a tremendous degree , what we would think of as the highest standard in the law. You only have to find by whatever unit of measurement in your heart and mind that the aggravating circumstance outweighs the mitigating factors and that you are convinced that this is the correct determination.
(Emphаsis added.) Myers asserts that this argument was improper because it encouraged the jury to apply a "lesser legal standard" in determining whether he should receive a death sentence. Defense counsel objected to the prosecutor's argument as a misstatement of the law. As a result, the trial judge instructed: "Ladies and gentlemen, I'm going to ultimately give you the instructions on the law. The attorneys are going to argue what they think the law is." The judge then told the jury that if any statement made during closing arguments did not match the instructions, the jurors were to follow the judge's instructions.
{¶ 162} After the closing arguments, the trial court correctly instructed the jury on the weighing process and specifically on the burden of persuasion. The court instructed:
In order for you to decide the sentence of death shall be imposed upon Austin Myers, the State of Ohio must prove beyond a reasonable doubt that the aggravating circumstance of which the defendant was found guilty is sufficient to outweigh the factors in mitigation of imposing the death penalty.
(Emphasis added.) Later, the court instructed:
If all twelve of you find that the State of Ohio proved beyond a reasonable doubt the aggravating circumstance the defendant was guilty of committing is sufficient to outweigh the mitigating factors in this case, then it will be your duty to decide the sentence of death shall be imposed on Austin Myers. If you find the State of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstance Austin Myers was guilty of committing is sufficient to outweigh the mitigating factors present in the case, then it will be your duty to decide which of the * * * life sentence alternatives will be imposed .
(Emphasis added.)
{¶ 163}
Finally, the court instructed: "You should proceed to consider and choose one of the life sentence alternatives if any one or more of you conclude that the State has failed to prove
beyond a reasonable doubt
that the aggravating circumstance outweighs the mitigating factors." (Emphasis added.) Considering the court's instructions to the jury, we conclude there was no error here.
See
State v. Loza
,
2. Comment on Unsworn Statement
{¶ 164} During the closing argument of the penalty phase, one of the prosecutors said: "They presented to you the unsworn statement of the defendant. What weight does that have, compared to the statements made by the defendant, to Detective Wyatt and to his own father after his arrest?" The defense did not object.
{¶ 165} Myers contends that the prosecutor's statement "implied that [the unsworn statement] was not as credible as" the testimony of a witness under oath. This contention is incorrect. The prosecutor was not comparing the unsworn statement to any sworn testimony but to Myers's own out-of-court statements to the police and to his father. Myers also asserts that the prosecutor's comment "denigrated" him for exercising his right to make an unsworn statement, but this claim is not supported by the record. Myers has not demonstrated plain error with regard to the comments.
3. "Taking Responsibility" Argument
{¶ 166} In the state's final closing argument, one of the prosecutors tried to explain why Myers is "more worthy of the death penalty than" Mosley. He argued that "Mosley accepted responsibility for his actions" by entering into a plea agreement in which "he agreed that he would spend the rest of his life [in prison] without parole." The prosecutor also said that Mosley "gave a detailed confession" that "pointed out specifically what he had done" and "didn't try to minimize" his actions. The prosecutor then asked the jury to
[c]ompare that to the unsworn statement of Austin Myers. * * * One thing that you did not hear him do in this statement on that stand, was take responsibility. At no point in time, did he acknowledge that what he did was wrong. * * * Why does [Mosley] get that deal and not Austin Myers? Tim Mosley's taking responsibility.
The defense did not object.
{¶ 167} Myers contends the statement was improper because it "switched [the] burden of proof to Myers." But nothing in the prosecutor's argument at this point addressed the burden of proof, either expressly or by implication.
{¶ 169} Moreover, the prosecutor's argument must be viewed in context. A principal theme of Myers's penalty-phase case for life was that he should be spared death because Mosley was more culpable and yet was not facing a death sentence. Defense counsel declared at the end of his closing argument:
The prosecutor's office * * * has applied the scales of justice to Timothy Mosley * * * and they've given him the sentence of life without parole. We would ask you to do the same. Don't punish Austin Myers for having gone to trial. Punish Austin Myers commensurate with what Timothy Mosley has received and give him a sentence of life in prison.
{¶ 170} In short, the defense made the Myers-Mosley comparison the keystone of its case for a life sentence. The prosecutor's explanation of why, in the state's view, the comparison was not valid was given to counter the defense's argument and was not improper.
4. Arguing Facts Not in Evidence
{¶ 171}
Finally, one of the prosecutors stated: "If it wasn't for Austin Myers, Tim Mosley may have never heard the name Justin Back. If it wasn't for Austin Myers, none of you may have ever heard the name Justin Back. If it wasn't for Austin Myers, Justin Back would still be alive today." Myers contends that this argument "improperly speculated on facts not in evidence." Again no objection was made to the statements. We conclude that there was no plain error. The
{¶ 172} Myers's tenth proposition of law is overruled.
IX. SENTENCING ISSUES
A. Eighth-Amendment Challenge
{¶ 173} In his first and second propositions of law Myers contends that his death sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution because his sentence is comparatively disproportionate to the life sentence received by Mosley and because Myers was "a 19 year-old immature adolescent with behavioral issues" when he committed his crimes. His arguments are not persuasive.
{¶ 174}
Myers concedes that the Eighth Amendment does not require comparative proportionаlity review in capital cases.
Pulley v. Harris
,
{¶ 175}
Myers further argues that the imposition of the death penalty is cruel
{¶ 176}
Although Myers argues that new developments in brain science indicate that age 18 is not the "proper cut off point for the death penalty," he does not propose that the categorical exclusion for those under age 18 be extended to 19-year-olds. Nor does he suggest that his mental-health issues rendered him unable to attain a "rational understanding" of the meaning and purpose of his execution,
Id
. at 959,
B. Sentencing Opinion
{¶ 177} In his 12th proposition of law, Myers contends that the trial court violated R.C. 2929.03(F) by combining its judgment entry with the sentencing opinion in one document. R.C. 2929.03(F) states:
The сourt or the panel of three judges, when it imposes sentence of death, shall state in a separate opinion its specific findings as to the existence of any of the mitigating factors set forth in division B of section 2929.04 of the Revised Code, the existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. * * * The judgment in a case in which a sentencing hearing is held pursuant to this section is not final until the opinion is filed [with the clerk of the supreme court].
(Emphasis added.)
{¶ 178} In this case, the trial court filed an opinion captioned: "JUDGMENT ENTRY OF SENTENCE ON AGGRAVATED MURDER WITH DEATH SPECIFICATIONS PURSUANT TO R.C. § 2929.03(F)." (Capitalization sic.) That document constitutes the sentencing opinion required by R.C. 2929.03(F). It set forth the jury's findings on aggravating circumstances and the court's own findings on mitigating factors and explained why the court found that the remaining aggravating circumstance outweighed the mitigating factors.
{¶ 179}
The same document also contains the four elements of a final, appealable order under Crim.R. 32(C). It sets forth the fact of the defendant's conviction of aggravated murder and the sentence imposed. The trial judge signed it, it bears a time stamp indicating entry on the journal
{¶ 180}
Myers contends that because R.C. 2929.03(F) specifies that the trial court shall state its findings "in a separate opinion," the sentencing opinion may
{¶ 181} But nоthing in R.C. 2929.03(F) requires that the sentencing opinion be filed in an entry different from the judgment entry. Nor is Ketterer to the contrary. In Ketterer , we held that "in cases in which R.C. 2929.03(F) requires the court or panel to file a sentencing opinion, a final, appealable order consists of both the sentencing opinion * * * and the judgment of conviction." Id. at ¶ 18.
{¶ 182} But it does not follow that a final, appealable order in a capital case must be embodied in two separate documents. Nothing in Ketterer prohibits a sentencing opinion from also including a judgment of conviction that is a final, appealable order. Because the sentencing opinion incorporates the elements required by Crim.R. 32(C), it constitutes a final, appealable order. We overrule Myers's 12th proposition of law.
X. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 183}
In his sixth proposition of law, Myers contends that his trial counsel rendered ineffective assistance during both phases of trial. To establish ineffective assistance, Myers must show (1) deficient performance by counsel, that is, performance falling below an objective standard of reasonable representation, and (2) prejudice-a reasonable probability that, but for counsel's errors, the result would have been different.
Strickland
,
A. Discovery
{¶ 184} Myers argues that the allegedly untimely discovery provided by the state and the trial court's denial of a continuance combined to deny him the effective assistance of counsel. He points to statements made by his trial counsel during the proceedings that their representation would be ineffective if they did not have enough time to thoroughly review the discovery provided in the weeks before trial. But despite his counsel's statements, Myers points to nothing in the record showing deficient performance by his counsel with respect to the items turned over during discovery. And even if he could point to deficient performance, he has not shown prejudice.
1. Decision Not to Cross-Examine Witnesses
{¶ 185} Myers complains that his trial counsel declined to cross-examine 13 of the state's witnesses. But "[t]rial counsel need not cross-examine every witness;
{¶ 186} Defense counsel cross-examined Mosley, the crucial prosecution witness, vigorously and at length. The 13 witnesses whom counsel did not cross-examine gave much less significant testimony.
{¶ 187}
Myers makes no attempt to explain how trial counsel's decision not to cross-examine the other witnesses was either unreasonable or prejudicial.
See
2. Declining to Make an Opening Statement
{¶ 188} After the state made its opening statement, defense counsel stated, "[W]e'd like to reserve any opening statement * * * until the beginning of our case." When the state's case-in-chief was finished, defense counsel waived an opening statement and rested without presenting evidence. Myers contends that his counsel rendered ineffective assistance by waiving an opening statement.
{¶ 189}
But "trial counsel's failure to make an opening statement * * * does not automatically establish the ineffective assistance of counsel."
Moss v. Hofbauer
,
{¶ 190} Myers argues that declining to make an opening statement was ineffective assistance because counsel thereby failed "to give the jury a clear picture of the case," "to arouse the interest of the jurors in a general theory of the defense," "to build rapport with the jurors," and to let them know "that there [would] be two sides to the case." But such arguments can be made anytime a defense attorney declines to give an opening statement.
3. Breaking a "Promise" to the Jury
{¶ 192} Next, Myers argues that his trial counsel were ineffective because they "told the jury at the beginning" that there would be a defense case and then failed to put on evidence as "promised." Breaking this promise, Myers says, "cost them credibility" and "lost the jury."
{¶ 193}
In fact, counsel made no such promise. What counsel said was: "Your Honor, we'd like to reserve any opening statement we give until the beginning of our case, please." Myers reads this as an implied promise that the defense would offer a "case." But it is unlikely that the jury understood it that way.
See
{¶ 194}
And even if counsel's statement could somehow be interpreted as a promise to offer a case, there is no "
per se
rule that unfulfilled promises * * * will result automatically in a finding of deficient performance of counsel and prejudice to a defendant."
Edwards v. United States
,
{¶ 195}
Defense counsel's reference to "the beginning of our case" did not include any promise of "specific, significant and dramatic" evidence, witnesses, or testimony.
Compare
Lang
at ¶ 284-285 (unfulfilled penalty-phase promise to present evidence that defendant had considered suicide was not shown to be prejudicial)
with
English v. Romanowski
,
{¶ 196} Each of Myers's guilt-phase ineffective-assistance claims lacks merit.
{¶ 197} Myers contends that his counsel rendered ineffective assistance in the penalty phase by failing to present any expert testimony.
{¶ 198}
He asserts that his counsel should have adduced expert testimony to explain the meaning of his self-harming behavior in his early teens and how brain development affects the decision-making of young people. Yet nothing in the record shows what such an expert "would have said in the penalty phase,"
State v. Ketterer
,
{¶ 199}
Moreover, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."
Strickland
,
{¶ 200} Myers's ineffective-assistance claims do not have merit. We overrule his sixth proposition of law in its entirety.
XI. SETTLED ISSUES
{¶ 201}
Myers's 17th and 18th propositions of law raise previously decided issues, which we treat summarily.
See generally
State v. Poindexter
,
{¶ 202}
In his 17th proposition of law, he argues that R.C. 2901.05(D)'s definition of "reasonable doubt," which the trial court's instructions conformed to, unconstitutionally reduces the state's burden of persuasion. But, as Myers concedes, we have "repeatedly affirmed" its constitutionality.
Diar
,
{¶ 203}
In his 16th proposition of law, Myers claims that the cumulative effect of the errors alleged in this case denied him a fair trial. Under the doctrine of cumulative error, "a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal."
State v. Powell
,
XIII. INDEPENDENT SENTENCE REVIEW
{¶ 204} R.C. 2929.05 requires us to independently review Myers's death sentence. We must determine whether the evidence supports the aggravating circumstances found by the jury, whether the aggravating circumstances outweigh the mitigating factors, and whether the death sentence is proportionate to death sentences affirmed in similar cases. R.C. 2929.05(A).
A. Aggravating Circumstances
{¶ 205} The jury found three aggravating circumstances under R.C. 2929.04(A)(7) (murder while committing aggravated robbery, aggravated burglary, and kidnapping). The state elected to proceed on only the aggravated-robbery specification.
{¶ 206} The record supports the jury's finding of this aggravating circumstance. Mosley testified that he and Myers planned to commit robbery by stealing Mark Cates's safe and to kill Back as part of the robbery. The testimony of Mark and Sandra Cates corroborated the aggravated robbery and its connection with the aggravated murder. When they arrived home on January 28, 2014, their son was missing, and so were various items of their property, including the safe. Police found traces of human blood in the kitchen and living room. Numerous items belonging to the Cateses were discovered when police searched Mosley's garage. And, as already discussed, there was ample evidence of Myers's prior calculation and design.
1. Statutory Mitigating Factors, R.C. 2929.04(B)
{¶ 207} Under R.C. 2929.04(B)(4), "[t]he youth of the offender" is a mitigating factor. Born on January 4, 1995, Myers was 19 years and 24 days old at the time of the murder. We find that the (B)(4) factor exists in this case. In addition, the trial court found that Myers had never previously been incarcerated for any reason. We therefore find that the mitigating factor in R.C. 2929.04(B)(5) ("lack of a significant history of prior criminal convictions and delinquency adjudications") exists.
{¶ 208}
Under R.C. 2929.04(B)(6), "[i]f the offender was a participant in the offense but not the principal offender," the
{¶ 209} Myers was diagnosed with depressive disorder less than five years before the murder and had engaged in self-harm. Although nothing in the record connects the offense with any "mental disease or defect," R.C. 2929.04(B)(3), we consider Myers's history of depression to be an "other factor" under R.C. 2929.04(B)(7). The mitigating factors in R.C. 2929.04(B)(1) (victim inducement) and (B)(2) (duress, coercion, or strong provocation) do not apply.
2. Nature and Circumstances of the Offense
{¶ 210} We find that the nature and circumstances of the aggravated murder offer nothing in mitigation.
3. Offender's History, Character, and Background
{¶ 211} At the mitigation hearing, Myers called three witnesses: Danielle Copeland, his mother, Gregory Myers, his father, and one of his younger brothers. Myers also made an unsworn statement.
{¶ 212} Myers is the oldest of the five children of Danielle and Gregory. His mother described his childhood as normal. Both parents testified that they tried to teach him right from wrong, disciplining him when he needed it. He developed an early interest in the piano, "had a great ear for music," took lessons, and performed at recitals. He was classified as "gifted" in many areas. Before Myers entered the fifth grade, he tested in the 98th percentile nationally in math and science, in the 99th percentile in reading and writing, and in the 97th percentile in social studies.
{¶ 214} Meanwhile, Myers developed behavior problems. His grades declined, and in May 2009, he briefly ran away from home. The police officer who brought him home informed his mother that Myers had told the officer that Myers had been cutting himself and shooting himself in the legs with a pellet gun.
{¶ 215} Danielle took him to Kettering Behavioral Medicine Center Youth Services, an inpatient facility, where he stayed for a week. He was diagnosed with "depressive disorder not otherwise specified" and "substance induced mood disorder" involving abuse of Benadryl and was prescribed Risperdal and Prozac. His mother testified that the medications seemed to help.
{¶ 216} While at Kettering in 2009, Myers told a doctor that his father had physically abused him. But this claim was disputed by both parents.
{¶ 217} In August 2009, Myers sought and received his mother's permission to move in with his father. After Myers moved in with his father, his father took him off his medications and discontinued his psychological counseling. Myers's mother felt that he needed more structure and "management" than his father gave him.
{¶ 218} Myers's parents and brother all testified about his strong family relationships.
4. Remorse
{¶ 219} In a brief unsworn statement, Myers apologized to Back's family and expressed sympathy for their "pain and suffering." He said that his execution would not "fix anything" or "bring Justin back" but would "only * * * cause more pain and suffering" to innocent people: his parents, brothers, and sisters. Myers said: "I don't want to hurt people. I am not asking you to spare my life so I can hurt anyone. I want to help people. I want to help stop tragedies like this from happening." He asked for "a chance for me to become a better person."
5. Sentence Evaluation
{¶ 220} We find little in Myers's history, character, and background that is mitigating. He came from a broken home, and the circumstances under which his parents divorced must have been painful. But he had a loving family and a middle-class upbringing that included taking music lessons. He was also a gifted student. He had advantages in life that few capital defendants have had.
{¶ 222} The R.C. 2929.04(B)(6) factor, degree of participation, is not entitled to significant weight on the facts of this case. Even though Myers did not inflict the fatal wounds, he had a large role in the offense. He came up with the idea of stealing the safe and of killing Back to get it. He chose that as an easy way to make some money over the alternative of robbing or burglarizing a drug dealer. He rejected Mosley's proposal to burglarize the Cateses' house on January 27, when they knew no one was home. He came up with the initial idea of killing Back, and he brainstormed with Mosley to arrive at the plan of making and using a garrote. He bought the materials to make the garrote.
{¶ 223}
Myers also extensively participated "in the acts that led to the death of the victim,"
{¶ 224}
Myers's strongest mitigating factor is his youth. He was just past his 19th birthday when he committed the murder. "This factor is entitled to some weight, especially since eighteen is the minimum age for death penalty eligibility."
Franklin
,
{¶ 225}
In a recent case,
State v. Johnson
,
{¶ 226} We find that the mitigating factors collectively deserve, at most, modest weight in this case. Accordingly, we find that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt.
C. Proportionality Review
{¶ 227}
Finally, we find that the death sentence is not disproportionate to sentences imposed in similar cases. R.C. 2929.05(A). This court has affirmed
{¶ 228}
Although Myers argues that his death sentence is disproportionate to Mosley's life sentence, we reject this argument. Cases of defendants who did
not
receive a death sentence at trial-including codefendants-are not "similar cases" to be included in the statutorily mandated proportionality review.
State v. Hutton
,
{¶ 229}
Myers cites
State v. Getsy
,
{¶ 230}
In that case, the principal offender, Getsy, was the one who received a death sentence. Although this court affirmed his death sentence, the court thought it "troubling" that Getsy's codefendant, who was
not
a principal offender, "did not receive the death sentence even though he initiated the crime."
Id.
at 209,
XIV. CONCLUSION
{¶ 231} We find no reversible error in the proceedings below. We affirm the convictions and the sentence of death.
Judgment affirmed.
O'Connor, C.J., and O'Donnell, Kennedy, French, Rice, and Fischer, JJ., concur.
Cynthia W. Rice, J., of the Eleventh District Court of Appeals, sitting for O'Neill, J.