[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. McKelton, Slip Opinion No. 2016-Ohio-5735.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-5735
THE STATE OF OHIO, APPELLEE, v. MCKELTON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. McKelton, Slip Opinion No. 2016-Ohio-5735.]
Criminal Law—Aggravated murder—Death penalty—Conviction and death
penalty affirmed.
(No. 2010-2198—Submitted January 13, 2015—Decided September 13, 2016.)
APPEAL from the Court of Common Pleas of Butler County,
No. CR2010-02-0189.
_________________
LANZINGER, J.
{¶ 1} Calvin McKelton appeals his convictions of the February 2009
aggravated murder of Germaine (“Mick”) Evans and the July 2008 murder of
Margaret (“Missy”) Allen. For the reasons that follow, we reject each proposition
of law and affirm the convictions and death sentence.
SUPREME COURT OF OHIO
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Background
{¶ 2} In February 2010, the state charged McKelton with the murder of
Allen, R.C. 2903.02(B), and the aggravated murder of Evans, R.C. 2903.01(A).
The aggravated-murder charge carried a firearm specification, R.C. 2941.145, and
two death specifications, R.C. 2929.04(A)(3) (escaping detection) and (A)(8)
(killing to prevent testimony in a criminal proceeding).
{¶ 3} McKelton was also charged with two counts of felonious assault, R.C.
2903.11(A)(1), and two counts of domestic violence against Allen, R.C.
2919.25(A); gross abuse of her corpse, R.C. 2927.01(B); aggravated robbery and
aggravated arson, R.C. 2911.01(A)(3) and 2909.02(A)(2); tampering with
evidence, R.C. 2921.12(A)(1); and intimidating a witness in a criminal case, R.C.
2921.04(B). The state, with leave of court, dismissed the aggravated-robbery
charge before trial.
{¶ 4} A jury trial began in October 2010.
B. The State’s Case-in-Chief
1. Domestic Abuse of Missy Allen
{¶ 5} Missy Allen, a criminal-defense attorney who had represented Calvin
McKelton, began dating him in 2006 or 2007. By 2008, McKelton was living with
Allen and her nieces, T.W. and Z.D., at Allen’s home in Butler County.
{¶ 6} T.W., then a teenager, testified that she had witnessed physically
violent arguments between McKelton and Allen while they were living together.
One time she found McKelton on top of Allen, choking her. During another
altercation, Allen asked T.W. to call the police, but McKelton took the phone from
T.W. and threw it on a counter. T.W. said that after things “start[ed] to get bad,”
Allen told her not to say anything about what happened in her house.
{¶ 7} A document on Allen’s home computer, created on September 13,
2007, chronicled abuse. The first-person narrative described an incident during
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January Term, 2016
which McKelton hit, kicked, and pushed Allen and then choked her twice, once
with such force that she nearly lost consciousness. She listed injuries to her face,
right side, right leg, back, and head as well as blood clots in her eyes due to “the
loss of air.” She was afraid because McKelton had threatened her and her niece.
She indicated that she intended to prosecute and to request a temporary protection
order and a high bond.
{¶ 8} A notebook found in Allen’s home office contained handwritten notes
that repeatedly mentioned the name “Calvin.” Charia Mam, a friend of Allen’s,
testified that the handwriting was Allen’s. Allen described McKelton’s grabbing
her by the neck, hitting her lip, threatening to burn her eye with a cigarette, and
pushing her down “b/c tried to choke.” Allen also described calling for her niece
to call 9-1-1. An undated apology note to Allen, written in McKelton’s
handwriting, stated: “I Love u baby, I don’t ever want to hurt u again. * * * I want 2
say sorry 2 you and 2 God for what Ive done.”
{¶ 9} Z.D., then 11 years old, testified that on May 4, 2008, she heard
McKelton yelling and Allen screaming from the direction of the garage. She called
9-1-1. Officer Kelly Smith was dispatched to Allen’s home, but McKelton and
Allen were gone when she arrived. The officer said that Z.D. was visibly shaking
and acting with “extreme fear.” McKelton returned while Smith was still at the
house. He “burst through the door” yelling Z.D.’s name and told Smith “to bounce
[her] ass out of the house.” Allen then called the house and told the officer that she
was in the hospital. Z.D. testified that Allen later told her she was “kind of mad”
that Z.D. had called 9-1-1 and had not come into the garage.
{¶ 10} Allen gave several accounts of her argument with McKelton. She
told police that McKelton had not harmed her and “if anything, she essentially
provoked him” by shoving him. She said that she tripped over something in the
garage. She told hospital personnel that she had fallen over a lawn mower or bike,
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SUPREME COURT OF OHIO
told a children’s services representative that she had fallen over a chair, and told
her physical therapist that she had fallen down a step.
{¶ 11} Allen’s injury required surgery to place four screws in her ankle as
well as physical therapy. According to two friends, Shaunda Luther and Mam,
Allen became “increasingly depressed,” “somewhat detached,” and “distant” after
the injury. McKelton was always around, and it was hard for Mam and Luther to
have meaningful conversations with Allen. Because she could not drive, she
depended on McKelton to take her to medical appointments and to court. And Luther
said that Allen was depressed because she could not make money to support herself.
Her bank account was overdrawn as of July 25, 2008.
{¶ 12} Mam and Luther both testified that Allen had expressed concern
about McKelton’s jealousy. Allen told Mam that McKelton “went through her
phone and text record frequently, and it always ended in an argument.” She also
told Mam that McKelton would kill her if he knew another man had sent her flowers
or if he thought she had slept with his friend.
{¶ 13} In July 2008, Allen told Mam that she thought she was pregnant.
She told her friend that she feared having a baby would tie her to McKelton forever
but that McKelton would kill her if she had an abortion without telling him. Allen
suffered a miscarriage later that month.
2. The Murder of Missy Allen
{¶ 14} On July 27, 2008, a woman was found dead in woods on the east
side of Cincinnati. A piece of plastic resembling a shower-curtain liner was
wrapped around the victim’s thighs, and a bag of counterfeit drugs lay near her
body.
{¶ 15} Jan Gorniak, D.O., then a deputy coroner for Hamilton County,
performed an autopsy on July 28, 2008. She classified the death as a homicide caused
by strangulation. Gorniak could not determine a precise time of death, but she
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January Term, 2016
estimated that the body had been in the woods for one and one-half to three days.
After the autopsy, police identified the woman as Allen.
a. Physical evidence
{¶ 16} Police then searched Allen’s home. The front door was locked and
the security system was activated, but inside they found a burn mark in the master
bedroom and several items that later tested positive for gasoline or gasoline
components. Officers collected samples of drywall that appeared to have blood on
them; the samples were later confirmed to have a DNA profile consistent with
Allen’s DNA profile. Two items—a cigarette butt and the door to the garage, which
had a smear that appeared to be blood—had a DNA profile consistent with
McKelton’s DNA profile.
{¶ 17} Valuable items—including Allen’s purse—were in plain view,
apparently undisturbed. Police found a long piece of weed-eater cord on the kitchen
floor. There was a shower curtain on the hallway floor but no sign of a shower-
curtain liner.
{¶ 18} Allen’s car was found in the village of Golf Manor shortly after
midnight on July 29, 2008. It was locked and did not appear to have been tampered
with. Cell-phone records indicated that the last outgoing call on Allen’s phone was
at 8:27 p.m. on July 25, 2008, to a phone number used by McKelton. Her laptop
computer was last used around 4 p.m. that day.
b. Investigation of McKelton
{¶ 19} On July 29, McKelton came to the Fairfield Police Department. After
he signed a Miranda waiver, he asked if there were any warrants for him. There
were not. McKelton did not answer any other questions. Officers noted small
abrasions (possibly burn marks) on McKelton’s hands. They photographed him
and took fingerprints, DNA samples, and fingernail scrapings. The DNA samples
were not consistent with male DNA collected from Allen’s fingernails.
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SUPREME COURT OF OHIO
{¶ 20} Based on cell-phone records, police believed that McKelton had
been near Allen’s house on the night of July 25 and the morning of July 26. He
made repeated calls that bounced off the Sprint cell-phone tower closest to Allen’s
house between 9:02 p.m. and 10:52 p.m. on July 25. McKelton’s next 18 calls
bounced off several towers, but he was near the Sprint tower closest to Allen’s
house again between 8:01 a.m. and 9:17 a.m. on July 26.
{¶ 21} Later, police learned of a possible eyewitness to Allen’s murder:
McKelton’s friend, Evans. Andre Ridley, a friend of Evans’s, testified that Evans
had told him about Allen’s death a few days after her body was found. Evans told
Ridley that he had been at Allen’s house when he heard her and McKelton fighting
in another room. Evans walked in and saw McKelton choking Allen. McKelton
then smacked Allen, telling her to wake up, but she did not. The men “started
staging the scene as a robbery.” Evans told Ridley that he and McKelton had
wrapped up Allen’s body and put it in the car, and McKelton set fire to the house.
The two men drove to a wooded area and dumped the body. McKelton threw some
drugs beside it.
{¶ 22} According to Ridley, Evans said that McKelton had assured him that
he could be charged only with abuse of a corpse. Evans also reported that McKelton
gave him 20 ounces of cocaine (worth $20,000 to $40,000). Ridley did not speak
with police until months later, after Evans was killed.
{¶ 23} Audrey Dumas testified that she had been with McKelton the night
that Allen died. Dumas said that she went out with McKelton one weekend night
in late July 2008. McKelton picked her up around 11:15 p.m. in a black BMW,
which she recognized as Allen’s car. They went to a club until 2:15 or 2:30 a.m.
and then drove around downtown with McKelton’s friends. McKelton brought her
home around 3:30 or 4:00 a.m.
{¶ 24} On July 25, McKelton was near Allen’s house at 10:52 p.m. After
that, he made or received seven calls—which bounced off different cell-phone
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January Term, 2016
towers—before a call bounced off a tower in the vicinity of Dumas’s house at 2:25
a.m. on July 26.
3. The Murder of Mick Evans
{¶ 25} Police did not learn that Evans may have witnessed Allen’s murder
until seven months after Allen’s death. Detective Jenny Luke obtained a subpoena
for Evans’s DNA and began trying to locate him.
{¶ 26} On February 24, 2009, Luke telephoned Evans’s sister, Crystal
Evans, and asked her to tell Evans that police wanted to talk to him about Allen’s
death. Luke did not realize that Crystal had been dating McKelton since September
2008 and that he was living with her. Crystal testified that McKelton easily could
have overheard her conversation with Luke. McKelton was at Crystal’s home when
she called Evans to relay Luke’s message.
{¶ 27} On March 1, Evans’s body was found at the bottom of steps leading
into a city park. Four .40 caliber shell casings were nearby. Neighborhood
residents reported to police that they had heard four or five gunshots near the park
between 9:00 p.m. and midnight on February 27, 2009.
{¶ 28} Gretel Stephens, M.D., a deputy coroner for Hamilton County,
performed an autopsy the next day. She gave her opinion that Evans had been dead
more than 24 hours and possibly for two or three days. He had been killed by a
single gunshot wound to the back of the head on the left side. The shot had been
fired at “very, very close” range, or possibly even with contact. Stephens recovered
bullet fragments that were consistent with a .40 caliber Smith & Wesson Sigma
Series semiautomatic.
{¶ 29} Police never found the murder weapon. However, the state did
introduce testimony from Allen’s teenaged niece, T.W., about a time when she saw
McKelton with a gun, which she said looked like a .40 caliber automatic.
{¶ 30} Cell-phone records indicated that Evans had last placed a call at 9:55
p.m. and last sent a text message at 10:01 p.m. on February 27. According to
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SUPREME COURT OF OHIO
Crystal, Evans did not trust anyone, so “[s]omebody close to him” must have shot
him.
{¶ 31} Crystal provided an alibi for McKelton on the night of February 27,
2009. She told police that he had arrived home before 9 p.m. but at trial admitted
that it may have been later. She said that after McKelton got home, she went out
to buy candy. She testified that when she returned home around 10:00 p.m.,
McKelton was gone. Crystal called him, and he said he had gone to get cigarettes.
McKelton walked in with a pack of cigarettes about five minutes later and the two
stayed in for the rest of the night. On cross-examination, Crystal said that she had
called McKelton at 9:22 p.m. and he arrived home for the night a few minutes later.
{¶ 32} Cell-phone records indicate that from 9:10 to 9:51 p.m. on February
27, several calls were made back and forth among McKelton, Brian “Red” Adams,
an old friend of McKelton’s, and Audrey Dumas, McKelton’s former girlfriend.
Dumas then called McKelton’s number more than two dozen times, ending at 11:37
p.m. Dumas testified that at 11:01 p.m., she was parked outside Crystal’s apartment,
believed McKelton was inside, and tried to disrupt their time together by sending text
messages telling him to come out. Later, beginning at 2:32 a.m., McKelton called
Dumas’s and Red’s numbers multiple times. Crystal testified she did not recall
waking up or hearing McKelton on the phone during the night.
{¶ 33} After Evans’s murder, Crystal avoided McKelton for several weeks,
but they resumed their relationship. In June 2010, she gave birth to his son. She
regularly visited McKelton in jail as he awaited trial, and they exchanged frequent
phone calls and letters. In letters, he reminded her that he was with her the night
Evans died and told her to stop “com[ing] at” him like she did not “know for [sure
he] was at home wit[h her].” He explained that phone records showed that Evans
died at 10:00 p.m. and told Crystal, “[W]e were home asleep at ten.”
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January Term, 2016
4. McKelton’s Admissions
{¶ 34} Multiple witnesses testified that McKelton implicated himself in the
deaths of Allen and Evans. Three of them—Marcus Sneed, Charles Bryant, and
Lemuel Johnson—were informants charged with other offenses.
{¶ 35} Sneed, who had grown up in the same neighborhood as McKelton,
testified that he had run into McKelton at a club and confronted him about Allen’s
death. McKelton told Sneed that he had choked Allen during “a heated argument”
but that he “didn’t mean to.” McKelton mentioned something about Allen’s
pregnancy and about her threatening him with her knowledge of his crimes.
{¶ 36} McKelton also told Sneed that “a friend help[ed] him” get rid of
Allen’s body. Sneed confronted McKelton again after hearing rumors about
Evans’s death. McKelton stated that he had had to kill Evans because Evans “was
the only guy that could link him to the murder.” Sneed did not report this
information to police until he was later arrested on federal drug-conspiracy charges.
{¶ 37} Bryant, who had met McKelton during a 2003 incarceration, testified
that McKelton had told him about the deaths of Allen and Evans. McKelton said
that he had been involved with an attorney and choked her during an argument
about whether she was pregnant with someone else’s baby. McKelton also
reminded Bryant about what had happened to Evans, which Bryant interpreted as a
threat. Bryant did not come forward with this information until he was incarcerated
on new charges.
{¶ 38} Johnson testified that McKelton had confessed to both murders
while they were discussing drug-related business. According to Johnson,
McKelton needed money and was trying to convince him to let him take care of
some witnesses for him. McKelton described situations in which he had eliminated
witnesses in the past. He said that he had been with Evans’s sister when a detective
called looking for Evans to discuss Allen’s death. He explained that Evans had
been a “weak link” who could connect him to Allen’s murder, so he had to kill him
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SUPREME COURT OF OHIO
before the detective found him. But Johnson did not report this conversation until
he was awaiting sentencing for a federal drug offense.
{¶ 39} The state also called Gerald Wilson and Michael Nix, two
acquaintances of McKelton’s who had reported hearing McKelton admit
responsibility for Allen’s death.
{¶ 40} Prior to the trial, Wilson told police about a conversation that he had
had with Michael Howell and McKelton in April or May, 2009. One night, Howell
gave Wilson a ride; McKelton was in the front passenger seat, texting someone.
McKelton commented, “Man, that bitch ain’t giving my shit to nobody. If she did,
I’m gonna choke her like I did Margaret and get away with it.” Howell warned
McKelton to watch what he said. McKelton responded that Wilson “ain’t gonna
do nothing. If he did, he gonna end up like Mick did.” At trial, Wilson recanted
and insisted that he knew nothing about Allen’s murder, so the prosecutor played a
recording of his original police statement for the jury.
{¶ 41} Nix refused to testify for the state at trial, so Detective David
Gregory testified about his prior statements under the doctrine of forfeiture by
wrongdoing. According to Gregory, Nix had asked McKelton about Allen, and
McKelton said that things “got out of hand, and he didn’t mean to do it.” Gregory
also testified that Nix said that Evans, McKelton, Red, and Lamar Simmons were
in his house around 11 p.m. on February 27, 2009, when he came home. Nix said
that the men left about an hour later. He never saw Evans again.
{¶ 42} Sheridan Evans, the mother of Evans and Crystal, testified that
McKelton spoke to her less than a week after Allen’s body was found. He “was
crying very hard” and said that “he loved Missy and it was a mistake.” McKelton
told Sheridan that he had “tried to revive [Allen] for 10 minutes, but [he] couldn’t
bring her back.” Sheridan also testified that McKelton and Red came to speak with
her after she met with homicide detectives in March 2009. During the conversation,
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January Term, 2016
Sheridan mentioned rumors that McKelton had killed Evans. McKelton denied the
rumors but said, “I don’t want to see nothing else happen to none of your kids.”
C. The Defense Case
{¶ 43} Defense counsel did not present any witnesses during the first phase
of the trial. However, they introduced almost 30 exhibits, including additional
crime-scene photos, the transcript of a police interview with Crystal, and some
additional phone records.
D. Verdict and Sentencing
{¶ 44} The jury convicted McKelton on all counts and specifications except
Count 11, intimidation of a witness. The trial court merged the death specifications
before sentencing, and the state elected to proceed on R.C. 2929.04(A)(8),
murdering a witness to prevent his testimony in a criminal proceeding. After the
mitigation phase and the jury recommendation, the trial court sentenced McKelton
to death for the aggravated murder of Evans. The court also sentenced him to 15
years to life in prison for Allen’s murder and to a total of 25 years for the remaining
convictions.
{¶ 45} McKelton now appeals, raising 21 propositions of law. We address
his propositions out of order for ease of analysis.
II. ANALYSIS
A. Pretrial Issues
1. Nondisclosure of Witnesses: Proposition of Law No. 2
{¶ 46} In his second proposition of law, McKelton challenges the
prosecutor’s failure to disclose eight witness names until the night before his trial
began.
a. The nondisclosure hearing
{¶ 47} The state originally filed a certification for nondisclosure, pursuant
to Crim.R. 16(D), of 23 witness names. After a request from the defense, the trial
judge referred the matter to another judge to hold an in camera hearing. By the
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SUPREME COURT OF OHIO
time the hearing took place, the prosecutor had disclosed all but eight witnesses,
seven of whom would testify at trial. At the hearing, the prosecutor argued that
disclosure would subject the witnesses or a third party to potential harm, coercion,
or intimidation. He offered four pieces of evidence in support.
{¶ 48} First, McKelton had been convicted of intimidating a witness in
2003. Second, in a jailhouse letter to Crystal, McKelton said that they should post
witness names in a public place when they got them. Third, in a phone call shortly
after McKelton’s arrest, an associate of McKelton’s told him not to worry because
they would “John Brown this case.” The prosecutor explained the reference: a
Cincinnati homicide defendant named John Brown had been acquitted when every
witness against him disappeared or recanted on the eve of his trial. Fourth, a
witness whose name had been disclosed, Michael Nix, had recently been shot at
shortly after a known associate of McKelton’s had asked Nix about McKelton’s
case.
{¶ 49} The judge asked what motivated the state’s heightened concern for
these eight witnesses. The prosecutor explained that two witnesses “were
extremely afraid to have their names disclosed” and likely would not have agreed
to testify absent nondisclosure. In addition, three witnesses, who were then
incarcerated, were fearful for themselves and their families. The prosecutor said
nothing specific about two witnesses.
{¶ 50} The judge upheld the nondisclosure as a proper exercise of
prosecutorial discretion. The prosecutor gave the defense the undisclosed
witnesses’ names and all but one of the statements on the evening before trial. One
statement was not provided until the next morning, shortly before the trial began.
b. Crim.R. 16(D) and (F)
{¶ 51} As an exception to the general rule requiring the disclosure of
witness names prior to trial, a prosecutor may seek relief from disclosure under
Crim.R. 16(D)(1) if the prosecutor has “reasonable, articulable grounds to believe
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January Term, 2016
that disclosure will compromise the safety of a witness, victim, or third party, or
subject them to intimidation or coercion.” Such grounds include “the nature of the
case, the specific course of conduct of one or more parties, threats or prior instances
of witness tampering or intimidation, * * * and any other relevant information.”
Crim.R. 16(D).
{¶ 52} Upon a defendant’s motion, an in camera hearing must be conducted
seven days prior to trial. Crim.R. 16(F). If the trial court finds an abuse of
prosecutorial discretion, then the prosecutor must immediately disclose the
material. 2010 Staff Note, Crim.R. 16(F). Otherwise, the material must be
disclosed “no later than commencement of trial.” Crim.R. 16(F)(5). We review a
lower court’s rulings on discovery matters for an abuse of discretion. State ex rel.
Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952,
¶ 27.
{¶ 53} McKelton argues first that the court should have found an abuse of
prosecutorial discretion under Crim.R. 16(D)(1) because the prosecutor’s grounds
were about only McKelton and the case generally and were not specific to each
witness. But Crim.R. 16 specifically contemplates nondisclosure for the reasons
the prosecutor cited here: the nature of the case against McKelton, his past
conviction for intimidating a witness, and evidence that he had sought to intimidate
witnesses in this case.
{¶ 54} Second, McKelton argues that the prosecutor could not rely on the
undisclosed witnesses’ representations that they feared McKelton’s knowing that
they would testify. McKelton contends that the prosecutor, not the witness, is
responsible for assessing any possible danger to a witness. While the rules vest the
prosecutor with responsibility for making the nondisclosure determination, a
prosecutor is not precluded from taking a witness’s own impressions into account
when deciding whether to disclose that witness’s identity. A witness’s fear of
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reprisal is relevant to the question whether disclosure might compromise the
witness’s safety.
{¶ 55} Third, McKelton argues that the prosecutor acted arbitrarily because
the nondisclosed witnesses offered testimony similar to, but less damaging than,
other witnesses whose names were disclosed. Crim.R. 16 does not require the state
to explain its reasons for choosing to disclose, and McKelton did not request such
an explanation.
{¶ 56} Finally, McKelton says that the eight undisclosed witness names
should have been disclosed at least seven days before trial. He ignores the language
of Crim.R. 16(F), which plainly states that when a trial court finds no abuse of
discretion in a prosecutor’s nondisclosure decision, materials must be disclosed no
later than the commencement of trial.
{¶ 57} In sum, the trial court did not abuse its discretion by affirming the
certificate of nondisclosure as a proper exercise of prosecutorial discretion.
c. Constitutional challenges to late disclosure
{¶ 58} McKelton also argues that the late disclosure of these witnesses
violated several of his constitutional rights.
{¶ 59} First, he says that the late disclosure violated the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution. A defendant’s
confrontation rights may be “legitimately constrained” by rules of discovery. State
v. Williams, 23 Ohio St.3d 16, 18, 490 N.E.2d 906 (1986). We have already
rejected a confrontation challenge to the predecessor to Crim.R. 16(D), former
Crim.R. 16(B)(1)(e), 34 Ohio St.2d li, at lii-liii, which permitted trial courts to
control the disclosure of information that might subject a witness to physical harm
or coercion. Williams at 18-19. And in any event, he did have a meaningful
opportunity to confront the witnesses against him: the witnesses were disclosed
before trial, and defense counsel cross-examined each one who testified. See State
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January Term, 2016
v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754,
¶ 22.
{¶ 60} Alternatively, McKelton claims that the late disclosure violated his
right to due process and a fair trial. The Due Process Clause of the Fourteenth
Amendment to the U.S. Constitution prohibits prosecutors from concealing
evidence favorable to a defendant, but “[t]here is no general constitutional right to
discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct.
837, 51 L.Ed.2d 30 (1977). Prosecutors are not constitutionally required to “reveal
before trial the names of all witnesses who will testify unfavorably.” Id. Instead,
“a trial court has broad discretion to postpone disclosure of a prospective witness’s
identity in order to protect his or her safety.” Alvarado v. Superior Court, 23
Cal.4th 1121, 1150, 99 Cal.Rptr.2d 149, 5 P.3d 203 (Cal.2000). Here, the trial court
did just that. Therefore, McKelton cannot demonstrate a violation of his right to
due process or a fair trial.
{¶ 61} Finally, McKelton alleges that the delayed disclosure denied him his
right to effective assistance of counsel because it deprived his attorneys of an
adequate opportunity to investigate and prepare his defense. To prevail on this
claim, he must show both that the nondisclosure caused counsel’s performance to
be deficient and that he suffered prejudice. Strickland v. Washington, 466 U.S. 668,
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For reasons explained in
response to the 1st, 15th, and 16th, propositions of law, McKelton has not met his
burden.
{¶ 62} For these reasons, we reject proposition of law No. 2.
2. Withdrawal of Counsel and Continuances: Proposition of Law No. 1
{¶ 63} In his first proposition of law, McKelton argues that the trial court
erred by denying his court-appointed counsel’s request to withdraw from
representation and his corresponding motion to remove those counsel. He claims
that the error in refusing counsel’s request to withdraw “was compounded by the
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trial court’s failure to grant repeated requests for a continuance” and argues that
these errors violated his right to due process, a fair trial, and effective assistance of
counsel.
a. Withdrawal of counsel
{¶ 64} McKelton claims that the trial court should have removed John Gregory
Howard and Melynda Cook, his two court-appointed attorneys, as counsel.
(1) Factual background
{¶ 65} Initially, McKelton retained attorney Richard Goldberg. At
McKelton’s arraignment in February 2010, Goldberg informed the court that he
lacked experience trying capital cases. He also explained that McKelton had
become indigent and asked the court to appoint counsel under former Sup.R. 20,
105 Ohio St.3d CXLV.1 Goldberg also sought “permission to stay on” as counsel,
if the state did not object. The trial judge appointed Howard as lead counsel and
Cook as co-counsel because he was unsure “what the status of [Goldberg’s]
participation” would be.
{¶ 66} On September 14, 2010, Goldberg, Howard, and Cook moved for
leave to withdraw, for the appointment of new counsel, and for a continuance so
new counsel could prepare for trial. Two days later, McKelton filed a handwritten
motion asking the “court to remove all counsel because of irreconcilable
differences, lawyer misconduct, conflict of interest, misrepresentation, personal
conflict and a complete lack of communication.”
{¶ 67} Goldberg was permitted to withdraw because of a conflict of interest.
But Cook and Howard cited only “a breakdown in the attorney client relationship”
1
McKelton claims that the trial court violated former Sup.R. 20, 105 Ohio St.3d CXLV, by
appointing two lawyers even though he had retained Goldberg. But counsel were appointed at
Goldberg’s request, and McKelton cannot take advantage of an error that he invited. State v.
Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10. Moreover, McKelton
arguably benefited: the two certified capital attorneys supplemented the efforts of Goldberg, who
lacked capital-defense experience.
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as the basis for their request. Howard explained that McKelton did not trust his
appointed counsel and would no longer cooperate in preparing his defense.
{¶ 68} McKelton told the trial judge that counsel had tried to pressure him
into accepting a plea bargain. He claimed that his attorneys and the prosecutor had
“conspired” to “coerce” him to accept a plea offer and that Cook was “outraged”—
even making a racist comment—when he refused. McKelton also said that Howard
and Cook had failed to effectively communicate with him, adequately prepare for
trial, use his money well, or hire the necessary defense experts.
{¶ 69} The trial judge denied Howard and Cook’s motion to withdraw,
finding that they were competent and had prepared the case “diligently.” The judge
reasoned that communication had broken down due to McKelton’s rejection of
counsel’s legal advice and refusal to cooperate.
(2) Analysis
{¶ 70} We review a lower court’s decisions about whether to discharge and
replace court-appointed counsel for an abuse of discretion. State v. Williams, 99 Ohio
St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. A defendant may establish good
cause to substitute new counsel by demonstrating “a ‘complete breakdown in
communication’ between the defendant and appointed counsel.” State v. Cowans, 87
Ohio St.3d 68, 73, 717 N.E.2d 298 (1999), quoting United States v. Calabro, 467
F.2d 973, 986 (2d Cir.1972).
{¶ 71} McKelton suggests several reasons why the trial court erred by not
dismissing Howard and Cook. First, he claims that the attorney-client relationship
completely broke down when counsel encouraged him to accept a plea bargain. But
disagreements—such as disagreement over the merits of a plea offer—“ ‘between
the attorney and client over trial tactics or approach * * * do not warrant a
substitution of counsel.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283,
855 N.E.2d 48, ¶ 150, quoting State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-
3475, 792 N.E.2d 757, ¶ 32 (7th Dist.). To the contrary, counsel “ ‘has a duty to
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be candid’ ” and “ ‘to give the accused an honest appraisal of his case.’ ” Id. at
¶ 151, quoting Brown v. United States, 264 F.2d 363, 369 (D.C.Cir.1959). Here,
defense counsel apparently gave McKelton their honest appraisal of his case, which
does not prove bias or conspiracy.
{¶ 72} McKelton also claims that he lacked confidence in Howard and
Cook because they failed to establish a relationship of trust, met with him only
twice, and did not consult with him about the state’s evidence. But the record
suggests that he met with Goldberg more regularly. The fact that he may have had
fewer personal interactions with Howard or Cook in the months preceding
Goldberg’s withdrawal does not justify the removal of court-appointed counsel
simply because Goldberg later withdrew.
{¶ 73} Next, McKelton objects that Howard and Cook failed to hire the
necessary experts to prepare his defense. The trial court approved funding for “an
investigator and mitigation specialist, a mental health professional, if * * *
appropriate, and a forensic expert, if * * * appropriate.” Counsel apparently hired
only an investigator. But that does not necessarily prove that counsel were
unprepared. Until a few weeks before trial, McKelton was represented by three
attorneys. And his investigator worked more than 100 hours on the case. Defense
counsel’s decision to hire additional experts was a matter of trial strategy, and
McKelton cannot establish that the strategy was unreasonable on this record. See
State v. Keyes, 6th Dist. Erie No. E-08-072, 2009-Ohio-6343, ¶ 28.
{¶ 74} Finally, McKelton says counsel should have been permitted to
withdraw because they were afraid of him. But counsel’s only expression of
concern occurred during the hearing on the motion to withdraw, and only in
response to the prosecutor’s reference to threats made by McKelton. The
prosecutor promptly clarified that McKelton had not threatened his counsel. Thus,
fear did not require the substitution of counsel in this case.
{¶ 75} The trial court reasonably declined to discharge Howard and Cook.
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b. Continuances
{¶ 76} McKelton argues that the trial court’s denial of his continuance
requests violated his constitutional rights and prejudiced his defense. To the extent
that McKelton’s argument implicates his constitutional right to the effective
assistance of counsel, McKelton must meet the Strickland test, showing both that
counsel’s performance was deficient and that he suffered prejudice.
{¶ 77} First, McKelton says that the court should have granted a
continuance on September 17, 2010, when Goldberg withdrew. The defense’s
continuance motion was predicated on the appointment of new defense counsel, who
would need additional time to prepare for trial. A continuance was unnecessary
because Howard and Cook remained as defense counsel and they had “known for
a significant amount of time” that Goldberg was likely to withdraw. Two months
before trial, defense counsel indicated that Richard Goldberg’s representation of
McKelton might create a conflict of interest. The judge had previously warned
Howard and Cook that they would need to be ready to go to trial without Goldberg
and, on September 17, he found that they were prepared to do so. Neither Howard
nor Cook indicated that they needed additional time to prepare as a result of
Goldberg’s withdrawal. McKelton does not explain how any deficient performance
resulted from Goldberg’s withdrawal, undermining any claim under Strickland.
Accordingly, we find no error in the trial court’s denial of the continuance request on
September 17.
{¶ 78} Second, McKelton says that the trial court should have granted a
continuance to allow the defense to investigate and prepare to cross-examine the
eight state witnesses who were disclosed shortly before trial began. The authors of
Crim.R.16 made clear that routine continuances to allow further defense
investigation of nondisclosed witnesses would destroy “the protective purpose of
[the nondisclosure] process.” 2010 Staff Notes, Crim.R. 16(F). For this reason,
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the “[Rules] Commission anticipated that continuances of trial dates would occur
only in limited circumstances.” Id.
{¶ 79} McKelton generally asserts that more time would have aided his
defense, but he does not explain why this case qualifies as one of those limited
circumstances. The record does not indicate that defense counsel were unprepared
for cross-examination; they cross-examined each of the late-disclosed witnesses
who testified at trial and even used some statements—as provided by the state—to
impeach them. And McKelton offers no indication of what information further
investigation would have yielded or how counsel would have used that information.
See State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that
require evidence outside the record are not appropriately considered on direct
appeal).
{¶ 80} Thus, McKelton has failed to establish an abuse of discretion or a
violation of his constitutional rights.
{¶ 81} For these reasons, we reject proposition of law No. 1.
3. Voir Dire: Proposition of Law No. 3
{¶ 82} In his proposition of law No. 3, McKelton argues that the trial court
violated his right to an impartial jury by denying his motion for individual,
sequestered voir dire. He further claims that defense counsel did not have sufficient
opportunity to question the venire.
{¶ 83} “The manner in which voir dire is to be conducted lies within the
sound discretion of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418, 613
N.E.2d 212 (1993). However, because an adequate voir dire is “part of the
guarantee of a defendant’s right to an impartial jury,” Morgan v. Illinois, 504 U.S.
719, 729, 112 S.Ct. 2222, 119, L.Ed.2d 492 (1992), that discretion is “ ‘subject to
the essential demands of fairness,’ ” id. at 730, quoting Aldridge v. United States,
283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).
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January Term, 2016
a. Group voir dire
{¶ 84} “There is no requirement that voir dire in a capital case must be
conducted in sequestration.” State v. Fears, 86 Ohio St.3d 329, 338, 715 N.E.2d
136 (1999). In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
229, we held that a trial court did not err by denying a request for sequestered voir
dire when the court “permit[ted] counsel to individually question prospective
jurors” and also “gave all jurors the opportunity to be questioned in private if they
were uncomfortable discussing their views in a group setting.” Id. at ¶ 66.
{¶ 85} The trial court voir dired McKelton’s prospective jurors in a group.
But as in Leonard, the judge anticipated that the prospective jurors might not be
comfortable answering every question in front of the entire group. At the outset of
voir dire, he advised, “[I]f at any point during this process you wish to answer a
question privately, you may do so.” He reiterated this point just before allowing
counsel to individually question the prospective jurors. Under these circumstances,
we see nothing inherently unfair about the manner in which the trial court
conducted voir dire.
{¶ 86} McKelton nevertheless claims that group voir dire was prejudicial
because “[t]he entire venire was made aware of pretrial publicity.” The trial judge
asked whether “anybody here [] knows anything about this based upon publicity of
the case.” Five prospective jurors responded affirmatively, and three indicated some
doubt about McKelton’s innocence based on press coverage. The prosecutor
explained to the venire that news reports are not evidence and that they are not
always accurate. And no juror responded when these jurors were asked if they
could not set aside anything they had read. In fact, defense counsel even described
an error in a recent news account.
{¶ 87} McKelton argues that this line of questioning tainted the entire venire
by informing every potential juror that some press coverage had implied his guilt.
But an entire venire is not necessarily prejudiced due to “the effect of being
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influenced by the opinions expressed by prior veniremen.” State v. Carter, 72 Ohio
St.3d 545, 555, 651 N.E.2d 965 (1995). We decline to presume that McKelton’s
entire jury pool was tainted simply because the prospective jurors learned that
negative publicity existed. In addition, McKelton does not point to any evidence
that the venire was actually prejudiced by the voir dire on publicity. Under these
circumstances, there is no indication that any of the seated jurors were biased
against McKelton.
{¶ 88} McKelton also objects to the prosecutor’s questions about domestic
violence during group voir dire. McKelton did not object to the prosecutor’s
questions, but he now says that they unfairly influenced the entire venire. In light
of the pending domestic-violence charges, it was reasonable for the prosecutor to
inquire about the prospective jurors’ “history * * * with acts of domestic violence as
a means of determining their ability to give fair consideration to the issues that would
arise at trial.” State v. Collymore, 8th Dist. Cuyahoga No. 81594, 2003-Ohio-3328,
¶ 65. We will not presume that an entire venire is prejudiced simply because the
prospective jurors were exposed to the opinions of other veniremen. Carter at 555.
And the record does not indicate that the discussion of domestic violence actually
biased any of the jurors.
{¶ 89} For these reasons, we reject McKelton’s argument that the trial court
erred by denying his motion for individual voir dire.
b. Insufficient opportunity for voir dire
{¶ 90} McKelton also argues that defense counsel did not have a sufficient
opportunity to ensure the jurors’ impartiality.
{¶ 91} First, he says that the jury questionnaire was inadequate. At a
pretrial hearing, defense counsel requested a 12-page jury questionnaire, and the
state requested its usual 2-page questionnaire. The trial judge agreed to produce a
questionnaire “in between” the parties’ proposals. In the end, the jury
questionnaires did not address attitudes toward the death penalty.
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January Term, 2016
{¶ 92} Trial courts have discretion to determine the content of jury
questionnaires. See State v. Davie, 80 Ohio St.3d 311, 317, 686 N.E.2d 245 (1997).
Here, McKelton cannot show that the trial court’s decision to use its own
questionnaire was unreasonable, arbitrary, or unconscionable. Moreover,
McKelton has failed to establish that he was prejudiced by the omission of
questions about attitudes toward the death penalty. He does not assert that any
seated juror was predisposed to order a sentence of death.
{¶ 93} Second, McKelton claims his counsel did not have enough time to
conduct voir dire. During a pretrial hearing, defense counsel warned that it might
take two days to select a jury. The judge responded, “It will take whatever life and
time it takes.” On the morning that voir dire began, the trial judge told the venire,
“[W]e believe we’ll have a jury selected by the close of business today.” Mid-
afternoon, defense counsel thanked the prospective jurors and explained, “I know
it’s getting late, and I’m going to try to wrap this up, but I have a couple of other
things that I want to talk about * * *.” Later, after defense counsel asked his final
question, he took a moment to review his notes, then thanked the judge and jurors
for their patience. Defense counsel did not request more time, indicate that he felt
rushed, or state a desire to ask additional questions. We see no reason to conclude
that voir dire was unduly truncated.
{¶ 94} McKelton’s third proposition of law is not well taken.
B. Evidentiary Issues
1. Forfeiture by Wrongdoing: Proposition of Law No. 4
{¶ 95} In proposition of law No. 4, McKelton argues that the trial court
erred by admitting various hearsay statements by Missy Allen under the doctrine of
forfeiture by wrongdoing. According to McKelton, this alleged error violated his
rights to confrontation and due process.
{¶ 96} Forfeiture by wrongdoing has long been recognized as an equitable
exception to a defendant’s constitutional right to confront the witnesses against
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him. See Giles v. California, 554 U.S. 353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488
(2008); Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed.2d 244 (1878). Ohio
codified this doctrine in 2001 as a hearsay exception under Evid.R. 804(B)(6). To
admit statements under this exception, a prosecutor must show by a preponderance
of the evidence that (1) the defendant engaged in wrongdoing that caused the
witness to be unavailable and (2) one purpose for the wrongdoing was to make the
witness unavailable to testify. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-
1017, 926 N.E.2d 1239, ¶ 106; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,
840 N.E.2d 151, ¶ 84.
{¶ 97} Ordinarily, we review a trial court’s hearsay rulings for an abuse of
discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
However, we review de novo evidentiary rulings that implicate the Confrontation
Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010).
a. Factual background
{¶ 98} The prosecution filed notice of its intent to offer Allen’s statements
under Evid.R. 804(B)(6) in August 2010, but the trial court did not address the
forfeiture question until the trial in October.
{¶ 99} Defense objected when the prosecutor asked his third witness,
Sherrie Bluester, the children services’ screener, what Allen had said about her
broken ankle. The prosecutor argued that Allen’s statements were admissible under
the forfeiture doctrine because he had established (1) Allen’s unavailability and (2)
that McKelton had acted with the purpose when he made her unavailable. The trial
judge overruled McKelton’s objection. The judge explained, “[T]he allegation in
this case is that this defendant murdered the victim, Ms. Allen, and I think this is
exactly what the forfeiture by wrongdoing exception is.” The defense noted a
continuing objection on this basis.
{¶ 100} The next day, the court invited the parties to more fully articulate
their positions on forfeiture by wrongdoing. Defense counsel objected that the trial
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January Term, 2016
court had not found that McKelton had made Allen unavailable with the purpose
of preventing her appearance at a trial. But the prosecutor argued that it was proper
to infer McKelton’s purpose from his history of domestic violence against Allen.
He cited Z.D.’s and T.W.’s “testimony about the pattern of abuse” and “the multiple
incidents” that they had witnessed. He also noted T.W.’s testimony that McKelton
had once snatched the phone from her after Allen had asked her to call the police.
The state contended that this evidence showed, by a preponderance of the evidence,
“that this relationship was in a dynamic of domestic violence, of a pattern of abuse
designed to isolate her and keep her from reporting to outside help.”
{¶ 101} Referring to his ruling from the previous day, the trial judge found
that the state had met its burden, given “the totality of the evidence in this particular
case.” The judge stressed that the defense could still object to Allen’s statements
on other grounds.
b. Admissibility under the Confrontation Clause
{¶ 102} McKelton claims that his confrontation rights were violated by the
admission of dozens of Allen’s statements through the testimony of her nieces, her
friends, a physical therapist, a children’s services screener, and a police officer.2
He says that these statements were not admissible under the forfeiture-by-
wrongdoing exception because the state did not establish that he had killed Allen
with the purpose of preventing her from testifying against him.
{¶ 103} The United States Supreme Court has analyzed the forfeiture
doctrine’s common-law roots and concluded that it “applie[s] only when the
defendant engaged in conduct designed to prevent the witness from testifying”
2
To the extent McKelton objects to the admission of nontestimonial hearsay, he was not entitled to
confront the declarants. See Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d
224 (2006). For example, he discusses Allen’s statements to friends and relatives. But an
unavailable witness’s “[s]tatements to friends and neighbors about abuse and intimidation” do not
implicate the confrontation clause. Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171
L.Ed.2d 488 (2008).
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about an earlier offense. (Emphasis sic.) Giles, 554 U.S. at 359, 128 S.Ct. 2678,
171 L.E.2d 488. Accordingly, “unconfronted testimony [will] not be admitted
without a showing that the defendant intended to prevent [the] witness from
testifying.” (Emphasis sic.) Id. at 361. Giles does not require that this be a
defendant’s “sole or even primary purpose,” however; it is sufficient if one purpose
for the defendant’s conduct was to make the victim unavailable, State v.
Supanchick, 323 P.3d 231, 239 (Ore.2014); see also Hand, 107 Ohio St.3d 378,
2006-Ohio-18, 840 N.E.2d 151, at ¶ 90 (interpreting Evid.R. 804(B)(6)).
(1) Accident and purpose
{¶ 104} McKelton argues that the notion of “purpose” in forfeiture analysis
is inconsistent with both the charges against him and the state’s theory of Allen’s
murder.
{¶ 105} Because the state charged McKelton with the felony murder of
Allen, R.C. 2903.02(B), predicated on an underlying offense of felonious assault,
R.C. 2903.11(A)(1), the state had to prove only that he acted knowingly in
committing the felonious assault, not purposely in killing Allen. See Fry, 125 Ohio
St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 43 (felony murder requires proof
of “the mens rea element set forth in the underlying felony offense”).
{¶ 106} But mere knowledge does not satisfy the purpose prong of the
forfeiture doctrine. Giles makes clear that the exception will not apply “in the
typical murder case involving accusatorial statements by the victim” when the
defendant has “caused a person to be absent” but did “not do[] so to prevent the
person from testifying.” 554 U.S. at 361, 128 S.Ct. 2678, 171 L.Ed.2d 488.
Instead, it applies in a murder case only if the state proves that a defendant murdered
the victim with the purpose of preventing the victim’s testimony about a separate
offense.
{¶ 107} The record does not indicate that McKelton had planned to kill
Allen on July 28, 2008, let alone to do so for a particular reason. Indeed, the state’s
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theory was that Allen’s murder “was spontaneous” and “wasn’t planned.”
Witnesses testified that McKelton killed Allen during an argument and tried to
revive her. Thus, the immediate circumstances of Allen’s death do not establish
the requisite purpose that would allow the admission of testimonial statements
because of forfeiture by wrongdoing.
(2) Domestic violence and purpose
{¶ 108} The immediate-circumstances analysis does not end the inquiry,
however, because, as the state argues, the broader circumstances—the history of
domestic violence between McKelton and Allen—support an inference of purpose
in this case.
{¶ 109} In Giles, the Supreme Court expressly “left open the possibility that
a defendant’s intention to prevent testimony might be inferred from the surrounding
circumstances, such as in a case of ongoing domestic violence.” Crawford v.
Commonwealth, 686 S.E.2d 557, 564 (Va.App.2009), aff’d 704 S.E.2d 107
(Va.2011).
{¶ 110} The court explained that “[a]cts of domestic violence” are relevant
to the purpose inquiry because they “often are intended to dissuade a victim from
resorting to outside help, and include conduct designed to prevent testimony to
police officers or cooperation in criminal prosecutions.” Giles, 554 U.S. at 377,
128 S.Ct. 2678, 171 L.Ed.2d 488. When an abusive relationship ends in murder,
“the evidence may support a finding that the crime expressed the intent to isolate
the victim and to stop her from reporting abuse to the authorities or cooperating
with a criminal prosecution—rendering her prior statements admissible under the
forfeiture doctrine.” Id. Hence, in deciding whether the forfeiture exception
applies, courts should regard as “highly relevant” any evidence of past abuse (or
threats) designed to discourage a victim from seeking outside help, as well as
evidence of ongoing criminal proceedings where the victim was expected to testify.
Id.
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{¶ 111} Evidence of domestic violence is “highly relevant” to analyzing the
purpose prong of the forfeiture exception. Giles at 377; see also, e.g., State v.
McLaughlin, 265 S.W.3d 257, 272 (Mo.2008); People v. Banos, 178 Cal.App.4th
483, 491-492, 100 Cal.Rptr.3d 476 (2009).
{¶ 112} McKelton argues that there is insufficient evidence of domestic
violence in this case. The record does not indicate that Allen ever reported domestic
abuse to police or that she was expected to testify against McKelton in a pending
criminal proceeding when she died. Cf. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017,
926 N.E.2d 1239, at ¶ 108-109; McLaughlin at 272.
{¶ 113} Even so, purpose can be inferred from the evidence in this case.
Allen’s nieces, who lived with McKelton and Allen, both testified about
McKelton’s abuse of Allen. And T.W. specifically testified that McKelton took the
phone away from her when Allen asked her to call 9-1-1. When Z.D. did call 9-1-
1 on the night that Allen broke her ankle, McKelton was enraged. Thus, although
Allen had not formally contacted police, her nieces’ testimony indicates that
McKelton was trying to isolate Allen and prevent her from talking to authorities.
{¶ 114} For these reasons, the admission of Allen’s statements did not
violate Giles’s purpose requirement and we reject proposition of law No. 4.
2. Impeachment of Gerald Wilson: Proposition of Law No. 6
{¶ 115} In proposition of law No. 6, McKelton argues that the trial court
erred by permitting the state to impeach its own witness, Gerald Wilson, with his
prior inconsistent statement and by admitting extrinsic evidence of that prior
statement. McKelton also argues that the prosecutor improperly relied on Wilson’s
prior statement as substantive evidence of his guilt.
a. Factual background
{¶ 116} Wilson gave a police statement in January 2009 in which he said
that he had heard McKelton admit to choking Allen. McKelton also threatened that
if Wilson said anything, he would “end up like Mick did.”
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{¶ 117} When the state called Wilson to testify, he denied or claimed not to
recall having made the statements. When pressed, he broadly asserted that he did not
know anything about the matter. Finally, he admitted that he had spoken to police,
but then claimed that police had falsified the transcript of his statement. He insisted
that he had been lying and that police were telling everyone to lie about McKelton.
Over defense objection, the state played an audio recording of Wilson’s police
interview.
{¶ 118} After Wilson left the stand, the prosecutor asserted that he had been
“shocked and surprised” by his recantation. The prosecutor stated that he had
personally interviewed Wilson and that his representations had been consistent with
his police statement. The trial judge found that “there were surprises and
affirmative damage,” which allowed the state to impeach Wilson under Evid.R.
607. The next day, the state sought to admit Wilson’s statement as an exhibit. The
trial court sustained a defense objection.
b. Application of Evid.R. 607(A)
{¶ 119} Evid.R. 607(A) authorizes a party to impeach its own witness “by
means of a prior inconsistent statement only upon a showing of surprise and
affirmative damage.” We review a trial court’s application of this rule for an abuse
of discretion. Davie, 80 Ohio St.3d at 323, 686 N.E.2d 245.
{¶ 120} “Surprise” occurs when a witness’s testimony materially differs
from a prior statement and counsel had no reason to believe that the witness would
testify as he did at trial. See id.; Ferguson Realtors v. Butts, 37 Ohio App.3d 30,
33, 523 N.E.2d 534 (12th Dist.1987); State v. Blair, 34 Ohio App.3d 6, 9, 516
N.E.2d 240 (8th Dist.1986). Here, the prosecutor said he was “shocked and
surprised” when Wilson’s trial testimony materially differed from his statement to
police. Under these circumstances, the trial court reasonably found that the state
was surprised by the witness’s testimony.
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{¶ 121} The “affirmative damage” requirement is satisfied if a “party’s own
witness testifies to facts that contradict, deny, or harm that party’s trial position.”
Blair at 9; see also Ferguson Realtors at 33. Wilson said that police had asked
him—and other witnesses—to lie. This potentially undermined the testimony of
several crucial state witnesses who had testified that they had heard McKelton
confess to one or both murders. Given that the prosecutor did not have any
eyewitnesses, the trial court reasonably found that Wilson’s testimony affirmatively
damaged the state’s case.
{¶ 122} McKelton also objects that the state did not establish surprise and
affirmative damage before impeaching Wilson. The defense did not object to the
state’s examination of Wilson until the state announced that it would like to play a
recording of his January statement. At that time, the trial court invoked Evid.R.
607(A) to overrule the defense objection and allowed the state to play the recording.
On this record, we hold that the requirements of Evid.R. 607 were satisfied.
{¶ 123} Furthermore, McKelton cannot demonstrate any plain error in the
state’s questioning of Wilson before the defense objected at trial. See State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The state’s questions laid
the necessary foundation for introducing extrinsic evidence of Wilson’s prior
statement under Evid.R. 613. And these questions did not alter the outcome of
McKelton’s trial.
{¶ 124} In short, the trial court did not abuse its discretion by allowing the
prosecutor to impeach Wilson with his prior inconsistent statement.
c. Extrinsic evidence of Wilson’s prior statement
{¶ 125} McKelton also claims that by permitting the state to play an audio
recording of Wilson’s prior statement, the trial court contravened State v. Ballew,
76 Ohio St.3d 244, 667 N.E.2d 369 (1996), which prohibits reading a witness’s prior
statement to the jury. But Ballew involved only the reading of a prior statement to
refresh a witness’s recollection under Evid.R. 612. Id. at 254. By contrast, Evid.R.
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613 specifically contemplates the admission of extrinsic evidence of a prior
statement under the circumstances outlined in Evid.R. 613(B). Ohio courts have
regularly applied the rule to admit a witness’s prior inconsistent statement for
impeachment purposes. See, e.g., State v. Fisher, 8th Dist. Cuyahoga No. 83098,
2004-Ohio-3123, ¶ 14; State v. Schaffer, 114 Ohio App.3d 97, 102, 682 N.E.2d
1040 (3d Dist.1996).
{¶ 126} McKelton does not dispute that the state satisfied the requirements
of Evid.R. 613. The state laid the proper foundation before playing the recording,
and the contents of Wilson’s statement went to a fact of consequence to the action:
his testimony presented a conflict with his prior statement about whether McKelton
had confessed or police were manufacturing a case against him. Thus, the trial
court did not abuse its discretion by permitting the state to play the recording for
the jury.
d. Wilson’s statement as evidence of McKelton’s guilt
{¶ 127} Finally, McKelton argues that the state improperly relied on
Wilson’s prior statement as substantive evidence of McKelton’s guilt. As a result,
he asserts that there is a “grave risk” that he was convicted based on unsworn
testimony, in violation of the Fifth, Sixth, and Fourteenth Amendments.
{¶ 128} As a general rule, “prior inconsistent statements constitute hearsay
evidence and thus are admissible only for the purpose of impeachment.” 1 Gianelli,
Evidence, Section 607.4, at 482-483 (3d Ed.2010); see also id., Section 613.3, at
591. Accordingly, unless another hearsay exception applies, a party may not
interrogate his own witness about a prior inconsistent statement “ ‘for the purpose
of offering substantive evidence against the accused.’ ” State v. Dick, 27 Ohio St.2d
162, 165, 271 N.E.2d 797 (1971), quoting State v. Duffy, 134 Ohio St. 16, 15 N.E.2d
535 (1938), paragraph two of the syllabus. Further, the prosecutor must not refer
to such statements for their truth during closing argument. State v. Richcreek, 196
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Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 54 (6th Dist.), quoting State
v. Kirk, 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, ¶ 28.
{¶ 129} During closing argument, the prosecutor did cite Wilson’s prior
inconsistent statement as substantive evidence of McKelton’s guilt. But because
McKelton did not request a limiting instruction or otherwise object, plain-error
review applies. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565,
¶ 91.
{¶ 130} Given the state’s reliance on Wilson’s prior statement as
substantive evidence and the lack of a limiting instruction, the jury may have
considered the unsworn testimony in support of its conviction of McKelton. But
the error was not outcome-determinative, because Wilson was not the only person
to hear McKelton confess to the murder of Allen or Evans. Sheridan Evans, Marcus
Sneed, and Charles Bryant all testified that he had implicated himself in Allen’s
death. And Sneed, Bryant, and Lemuel Johnson all testified that McKelton
implicated himself in Evans’s death.
{¶ 131} For these reasons, we reject proposition of law No. 6.
3. Testimony of Crystal Evans: Proposition of Law Nos. 10 and 11
{¶ 132} The prosecutor questioned Crystal about her March 2, 2009 police
statement and about some of her phone calls and correspondence with McKelton
during the months before trial. The trial court admitted a complete transcript of the
police interview, recordings of the phone calls, and the letters into evidence. In
proposition of law No. 10, McKelton argues that this violated his right to a fair trial,
due process, a reliable determination of guilt, and a reliable sentence. He also
contends, in proposition of law No. 11, that it was improper to admit statements
that had been made by detectives during the interview.
{¶ 133} McKelton did not request limiting instructions or object at trial, so
plain-error review applies. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240.
32
January Term, 2016
a. Impeachment of Crystal
{¶ 134} McKelton argues that it was improper to rely on Crystal’s prior
statement to impeach her testimony on direct examination. The state counters that
its use was proper to demonstrate McKelton’s “prior planning to escape criminal
liability for Germaine Evans’s death.”
{¶ 135} Prosecutors may elicit testimony on direct examination that the
defendant asked a witness “to fabricate an alibi for him,” Commonwealth v. Young,
561 Pa. 34, 61-62, 748 A.2d 166 (2000), because such evidence “strongly indicates
consciousness of guilt.” State v. Campbell, 69 Ohio St.3d 38, 47, 630 N.E.2d 339
(1994). Although the state did not elicit such testimony here, it did have a
reasonable basis for probing Crystal to determine whether her inconsistencies were
a product of McKelton’s coaching; a letter and a jailhouse phone call suggested that
he had coached her about an alibi. And because Crystal provided McKelton’s alibi,
the state was entitled to question her about the timing of McKelton’s and her own
movements on February 27, 2009.
b. Extrinsic evidence of Crystal’s statements to police
{¶ 136} McKelton also argues that there was no evidentiary basis for the
trial court to admit extrinsic evidence of Crystal’s March statements to police.
{¶ 137} Crystal’s prior out-of-court statement would generally be
inadmissible for the truth of the matter asserted. Evid.R. 801(C) and 802. The state
contends that her statements are nonhearsay because they indicate consciousness of
guilt by confirming that McKelton encouraged her to provide a false alibi. But
nothing in Crystal’s statements, or in her responses to inquiries about them at trial,
indicates that McKelton had asked her to lie. Therefore, the state has not identified
a legitimate nonhearsay purpose.
{¶ 138} The state has not identified any other hearsay exemption or
exception that would apply to Crystal’s statements. They were not admissible as
prior inconsistent statements under Evid.R. 607(A), so extrinsic evidence of them
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does not fall under Evid.R. 613(B). And although the state used Crystal’s earlier
statements to refresh her recollection, that entitled the defense—not the state—to
admit the transcript of her statements. See Evid.R. 612. As a result, the trial court
erred by admitting Crystal’s statements.3
{¶ 139} Even so, McKelton cannot establish that but for this error, the
outcome of the trial “clearly would have been otherwise.” State v. Mammone, 139
Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. Ultimately, McKelton’s
whereabouts on the night of Evans’s murder were not crucial because the state
advanced the theory throughout the trial that he had enlisted someone else to kill
Evans. Indeed, in his own brief, McKelton concedes that “[w]hether [he] was at
[Crystal’s] apartment on the night of Germaine’s death is insignificant.” Thus, the
error did not affect McKelton’s substantial rights. See Crim.R. 52(B).
c. Police statements during Crystal’s interview
{¶ 140} McKelton also objects to the admission of the transcript of
Crystal’s police interview because it included inadmissible hearsay statements
made by Detectives Luke and Witherell. During the interview, the detectives told
Crystal that McKelton had abused Allen, severely beat the mothers of his daughters,
and abused other women. They also indicated that they had evidence that Evans
was in a car with McKelton around 9:00 p.m. on the night he died. And they tried
to undermine Crystal’s claim that McKelton had been with her the entire night of
Evans’s murder, stating that Crystal had told her mother otherwise.
{¶ 141} The state argues that these statements were admissible because they
were “actually questions, designed to elicit a response from Crystal Evans.” But
here the detectives’ “questions” incorporated numerous assertions about McKelton.
And the state does not argue that they were admissible solely for a nonhearsay
purpose, such as providing context for Crystal’s responses. Cf. State v. Keene, 9th
3
In light of this conclusion, we need not separately analyze McKelton’s claim that this evidence
violated Evid.R. 403.
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Dist. Lorain No. 06CA8880, 2006-Ohio-6676, ¶ 24 (holding that “the State did not
introduce the questions posed by the officer for the truth contained in those
statements” when the state had “asserted that the statements were necessarily
included to give context to the answers given by appellant”).
{¶ 142} Because the transcript “was admitted for all purposes, including the
truth of the matter stated, the detective[s’] statements were also hearsay.” Lampkins
v. State, 778 N.E.2d 1248, 1251-1252 (Ind.2002). The jurors had no way to know
that the “statements were not evidence” or that the officers’ representations to
Crystal may not have been entirely truthful. Id. at 1252; see also State v. Craycraft,
147 Ohio Misc.2d 5, 2008-Ohio-2192, 889 N.E.2d 1110, ¶ 22 (Clermont C.P.). “It
[was] error to admit statements by an interrogating officer without any limiting
instruction or admonishment.” Lampkins at 1252.4
{¶ 143} Even so, McKelton cannot establish that the error affected his
substantial rights. The jury heard independent evidence of the detectives’ assertions
at trial, with the exception of Luke’s statement that McKelton had abused other
women. And even that statement was not outcome-determinative in light of the
ample additional evidence supporting McKelton’s convictions.
d. Admission of recordings and letters
{¶ 144} McKelton also claims that the trial court violated Evid.R. 403 by
admitting recordings of his jailhouse phone calls with Crystal and his letters to her.
All relevant evidence is admissible, Evid.R. 402, unless its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, Evid.R. 403(A).5
4
These statements do not raise confrontation concerns because Luke and Witherell both testified
during the state’s case-in-chief. “[W]hen the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”
Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn.9.
5
McKelton repeatedly asserts that “heightened scrutiny” applies to Evid.R. 403 objections in capital
cases. But the case he cites for this proposition establishes a more exacting standard for the
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{¶ 145} In the recording of the first call admitted, McKelton explained the
police’s theory of Evans’s murder and asked Crystal why she had left police a
voicemail suggesting that he arrived home after 10 p.m. on February 27. In the
second call, he and Crystal argued loudly, and he scolded, “I wonder why you making
these stupid decisions.” These conversations are highly probative of McKelton’s
efforts to establish an alibi and to monitor Crystal’s exchanges with police, and their
probative value is not substantially outweighed by the danger of unfair prejudice.
{¶ 146} The content of the letters was also more probative than unfairly
prejudicial. The four letters introduced during Crystal’s testimony supported the
state’s theory that McKelton was trying to persuade her to lie for him at trial. In
one, he proposes to Crystal and discusses his plans to marry her. In another, he
teaches her a secret code and discusses his desire for a venue change due to
publicity. In yet another, he says he wants to drum up media attention and suggests
publicly posting witness names, arguably as a scare tactic. And in the last, he notes
that he has reviewed evidence that Evans died at 10:00 p.m. and reminds Crystal
that they were “home asleep at ten.” The trial court did not err by admitting this
evidence.
{¶ 147} For these reasons, we reject proposition of law No. 10.
4. Audrey Dumas as a Witness Identified with an Adverse Party:
Proposition of Law No. 7
{¶ 148} In proposition of law No. 7, McKelton argues that his due-process
rights were violated when the trial court allowed the state to treat Audrey Dumas
as a witness identified with an adverse party and permitted excessive, leading
questions.
admission of gruesome photographs in capital cases, not for the admission of all evidence in capital
cases. See State v. Morales, 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267 (1987). This court has
declined to extend Morales beyond the context of gruesome photographs. See Mammone, 139 Ohio
St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 130.
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January Term, 2016
a. Factual background
{¶ 149} Before Dumas began testifying, the state sought leave to use
leading questions under Evid.R. 611(C) because she was “identified with the
adverse party in this case.” After requiring the state to establish Dumas’s
relationship with McKelton, the trial court granted the state’s request.
b. Determination that Dumas was identified with an adverse party
{¶ 150} Evid.R. 611(C) generally prohibits the use of leading questions on
direct examination. However, they are permitted “[w]hen a party calls a hostile
witness, an adverse party, or a witness identified with an adverse party.” Id. We
review a trial court’s application of this rule for an abuse of discretion. Ramage v.
Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 111, 592 N.E.2d 828 (1992).
{¶ 151} Here, the record supports the trial court’s finding that Dumas was
identified with McKelton. Dumas testified that they had ended a six-year romantic
relationship earlier that year, and they were still close. She visited McKelton in
jail, sent him money, exchanged letters with him, and spoke to him on the
telephone. Indeed, she had even spoken with him since his trial began four days
earlier.
{¶ 152} McKelton argues that even if his relationship to Dumas was
sufficient to establish that she was identified with him, to establish adversity, the
prosecutor also had to show that Dumas was evasive. But evasiveness is not a
prerequisite to finding adversity. Instead, it is generally relevant to assessing
whether a witness is hostile, an entirely separate basis for permitting leading
questions under Evid.R. 611(C). See Weissenberger, Ohio Evidence: 1991
Courtroom Manual (1991) 170 (“A hostile witness is one who is so evasive or
uncooperative on examination that his testimony is impeded”).
{¶ 153} Thus, the trial court reasonably found that Dumas was a witness
identified with an adverse party.
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c. The state’s questions
{¶ 154} McKelton alternatively argues that the state “used excessive
leading questions to improperly put words in [Dumas’s] mouth and place improper
insinuations before the jury.”6 Because McKelton did not raise this objection at
trial, we review for plain error.
{¶ 155} On direct examination, the prosecutor inquired about the following:
(1) whether Dumas had given McKelton money in the past and whether she had set
up robbery victims for him, (2) her date with McKelton on the evening of Allen’s
death, (3) her interaction with McKelton after Allen’s body was found, and (4)
McKelton’s request that she speak to his attorney about his alibi a few weeks after
Allen’s death. Throughout the questioning, the prosecutor expressed disbelief that
Dumas had never asked McKelton whether he killed Allen. He also tried to
establish that Dumas had, at McKelton’s request, texted and called McKelton on
the night of Evans’s murder to establish an alibi for him.
{¶ 156} McKelton first claims that the prosecutor used “excessive” leading
questions. But a 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.
{¶ 157} Second, although McKelton claims that the prosecutor “improperly
put words in Dumas’[s] mouth,” Dumas often refused to answer questions with a
simple “yes” or “no.”
{¶ 158} 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
evidence.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). Although
the state’s questions did imply that the alibis were not credible and the prosecutor
6
McKelton also asserts that “the State used Dumas” to present “highly inflammatory evidence that
should have been excluded under Evid.R. 403(A).” But he does not identify the evidence he deems
inflammatory and thus has not meaningfully presented this claim for review.
38
January Term, 2016
argued in closing that McKelton asked Dumas to provide an alibi for both nights,
there is no indication that these questions were calculated to mislead the jury or
were unsupported by a factual predicate.
{¶ 159} We reject proposition of law No. 7.
5. Domestic-Violence Expert: Proposition of Law No. 14
{¶ 160} In proposition of law No. 14, McKelton argues that the state’s
expert testimony about domestic violence was inadmissible because the defense
had not challenged the credibility of the victim. He further argues that the expert
impermissibly testified about Allen’s specific characteristics rather than about
characteristics of domestic-violence victims generally.
{¶ 161} Expert-witness testimony is generally admissible “if it will assist
the trier of fact in search of the truth.” State v. Koss, 49 Ohio St.3d 213, 216, 551
N.E.2d 970 (1990). Evid.R. 702 permits a witness to testify as an expert if (1) the
“testimony either relates to matters beyond the knowledge or experience possessed
by lay persons or dispels a misconception common among lay persons,” (2) the
witness “is qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony,” and (3) the
“testimony is based on reliable scientific, technical, or other specialized
information.” We review a trial court’s admission of expert testimony for an abuse
of discretion. State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91,
¶ 50. Although Allen was deceased, the state presented a theory that domestic abuse
had occurred even though Allen had not reported it. This expert testimony met the
Koss test of assisting the trier of fact to determine a material issue.
{¶ 162} Over repeated objections, Margene Robinson, a retired police
lieutenant who had supervised the Domestic Violence Unit in the Dayton Police
Department, testified as a domestic-violence expert during the state’s case-in-chief.
She described the three phases of a cycle of domestic violence: (1) the tension-
building phase, when economic or domestic issues arise or the abuser makes
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accusations, (2) the battering phase, when the perpetrator engages in verbal, sexual,
or physical abuse, and (3) the honeymoon phase, when the abuser expresses
remorse and may promise to change. She added that after the third phase, the cycle
begins again. Domestic violence is about asserting “power over the victim * * * and
control,” and many victims are reluctant to leave an abusive relationship because of
religious beliefs, shame, or fears of retaliation, she testified.
{¶ 163} McKelton argues that Robinson exceeded the established limits for
expert testimony about domestic violence. This court has affirmed the use of expert
testimony about battered-women’s syndrome, but only if “ ‘there is some evidentiary
foundation that a party or witness to the case is a battered woman, and that party or
witness has behaved in such a manner that a jury would be aided by expert testimony
providing an explanation for the behavior.’ ”7 Id. at ¶ 46, quoting State v. Borrelli,
227 Conn. 153, 172, 629 A.2d 1105 (Conn.1993), fn. 15.
{¶ 164} The state offered Robinson’s testimony about the cycle of domestic
violence to explain how Allen’s failure to report McKelton could be consistent with
other evidence of abuse. And the state established an adequate foundation for this
testimony by presenting evidence that McKelton and Allen were in a cycle of
domestic violence. See Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d
91, at ¶ 48 (“Evidence generally establishing the cycles of a battering relationship
is an appropriate foundation for battered-woman-syndrome expert testimony”).
Thus, Robinson’s testimony was both relevant and predicated upon a proper
foundation.
{¶ 165} Regarding McKelton’s assertion that Robinson improperly testified
about Allen’s specific characteristics, we note that although Robinson indicated
some familiarity with Allen’s background, she did not opine that Allen was a
7
Experts often use the term “battered woman syndrome” to refer to “both the psychological effects
of domestic violence and the dynamics of abusive relationships.” Dutton, Understanding Women’s
Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L.Rev.
1191, 1195 (1993), fn. 14.
40
January Term, 2016
victim. Her testimony about women bearing certain characteristics dispelled a
common misperception—echoed in McKelton’s own brief to this court—that there
is a “stereotypical victim of domestic violence.” Through Robinson, the state
established that domestic violence can affect unlikely victims.
{¶ 166} Finally, McKelton argues that Robinson’s testimony violated
Evid.R. 403 because it was tainted by her knowledge of the facts in this case.
Robinson testified that before trial, she had reviewed some of Allen’s writings and
a letter to Allen from McKelton. McKelton reasons that Robinson’s reference to
these materials implied that Robinson “was called because the materials’ contents
revealed incidents of domestic violence.”
{¶ 167} Robinson did not need to review this information—or to mention it
at trial—in order to testify generally about domestic violence. But the record in no
way suggests that these materials affected her testimony; she testified that her
knowledge was derived from domestic-violence literature and her own experience.
Ideally, the trial court should have instructed the jury on the limits of Robinson’s
testimony to eliminate any possible confusion, see Haines, 112 Ohio St.3d 393,
2006-Ohio-6711, 860 N.E.2d 91, at ¶ 57, but even so, we cannot conclude that the
trial court abused its discretion by denying McKelton’s motion “to strike all of her
testimony.” (Emphasis added.)
{¶ 168} For these reasons, we reject proposition of law No. 14.
6. Cross-Examination of Informants: Proposition of Law No. 9
{¶ 169} In proposition of law No. 9, McKelton claims that the trial court
improperly limited his cross-examination of three incarcerated informants: Charles
Bryant, Lemuel Johnson, and Marcus Sneed. McKelton says that the jury was “not
able to thoroughly judge [their] credibility” because he did not get to adequately
question them about their motives for testifying about his statements implicating
himself in the murders of Allen and Evans.
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a. Scope of the right to cross-examine a witness
{¶ 170} The Sixth Amendment to the U.S. Constitution gives a defendant
the right “to be confronted with the witnesses against him.” See also Ohio
Constitution, Article I, Section 108 (“the party accused shall be allowed * * * to
meet the witnesses face to face”). But this protection “guarantees only ‘an
opportunity for effective cross-examination.’ ” (Emphasis in original.) State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting
Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). Trial
courts have “wide latitude * * * to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431,
89 L.Ed.2d 674 (1986).
{¶ 171} Similarly, Evid.R. 611(B) requires trial courts to permit “[c]ross-
examination * * * on all relevant matters and matters affecting credibility.”
However, under Evid.R. 611(A), a trial court “shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting evidence.”
{¶ 172} When a defendant challenges a trial court’s limitation on cross-
examination on appeal, the standard of review turns on the nature of the limitation.
“Limitations * * * that deny a defendant ‘the opportunity to establish that the
witnesses may have had a motive to lie’ infringe on core Sixth Amendment rights”
and are reviewed de novo. (Emphasis sic.) State v. Gonzales, 151 Ohio App.3d
160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 45 (1st Dist.), quoting United States v.
Nelson, 39 F.3d 705, 708 (7th Cir.1994). To establish a confrontation violation,
then, McKelton must show that he was “prohibited from engaging in otherwise
appropriate cross-examination.” Van Arsdall at 680. But if a trial court “allow[ed]
8
“Section 10, Article I provides no greater right of confrontation than the Sixth Amendment * * *.”
State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990).
42
January Term, 2016
cross-examination to expose a motive to lie,” then “it is of peripheral concern to
the Sixth Amendment how much opportunity defense counsel gets to hammer that
point home to the jury.” Nelson at 708. Under those circumstances, the extent of
cross-examination is within the sound discretion of the trial court. State v.
Freeman, 7th Dist. Jefferson No. 07JE5, 2008-Ohio-2925, ¶ 12, citing State v.
Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). To prove a violation of
Evid.R. 611, McKelton must demonstrate that the trial court’s limitation on cross-
examination was “unreasonable, arbitrary or unconscionable.” Freeman at ¶ 12.
b. Charles Bryant
{¶ 173} On direct examination, Bryant stated that he was willing to
cooperate with police out of self-interest, but he denied that he had been promised
anything specific. On cross-examination, the defense established that Bryant had a
prior felonious-assault conviction and had been awaiting trial for felonious assault
and other offenses for 14 months. He admitted that his trial had been continued
“[r]oughly maybe four times” but denied that it had been continued “to see how
[his] testimony goes in [McKelton’s] case.” His attorney had advised him,
however, that testifying against McKelton might help Bryant in his case.
{¶ 174} The trial court sustained objections to two defense questions: how
many times Bryant’s pending case had been set for trial and whether he had been
charged with trafficking. See Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, 89
L.Ed.2d 674. The jurors already knew that Bryant was awaiting trial on felony
offenses and that his trial had been continued until after he testified in McKelton’s
case, which “adequately established [his] motive to lie.” State v. Reed, 10th Dist.
Franklin No. 09AP-84, 2009-Ohio-6900, ¶ 11. The trial court did not violate
McKelton’s confrontation rights or Ohio’s evidentiary rules by sustaining
objections to these questions.
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c. Lemuel Johnson
{¶ 175} Johnson testified that he had been incarcerated on a federal cocaine-
possession charge for about a year and would be sentenced about a month after
McKelton’s trial. But Johnson insisted that he did not expect his testimony against
McKelton to help him at sentencing. He explained that he had not told police about
his conversations with McKelton until he was locked up on this charge because he
had assumed that “everybody in Cincinnati knew” already. He also told the jury
about his prior convictions.
{¶ 176} On cross-examination, the trial judge sustained an objection to
questioning as asked and answered when defense counsel repeatedly questioned
Johnson about why Johnson thought his testimony would matter now. The jury had
ample information to evaluate Johnson’s motives to testify; it had been told that he
was incarcerated and would soon be sentenced. See Tansley, 986 F.2d at 886; Reed,
2009-Ohio-6900, at ¶ 11. Repetition would have given the jury no greater
information from which to form a different impression of his credibility.
d. Marcus Sneed
{¶ 177} Sneed did not speak to police until he was jailed on federal
conspiracy charges. He said that McKelton’s admissions had long weighed on his
conscience, but that he had been too worried for his family’s safety to say anything
until McKelton was locked up.
{¶ 178} Sneed had been in federal custody for 13 or 14 months on a drug-
conspiracy charge at the time of McKelton’s trial. He expressed uncertainty about
whether he was facing a lengthy sentence, but admitted that he was being held
without bond and had prior convictions in Ohio. He also admitted that his sentencing
had been continued until after he testified at McKelton’s trial, but said he did not
know why. He insisted that he was not testifying with an eye to his upcoming
sentencing hearing.
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{¶ 179} The trial court sustained objections when defense counsel
repeatedly questioned Sneed about the timing of his continuance, even after Sneed
had answered. The trial court also sustained objections to inquiry into how many
counts Sneed was facing and privileged attorney-client communications. The jury
had sufficient information to evaluate Sneed’s credibility, however. See Reed,
2009-Ohio-6900, at ¶ 11; Tansley, 986 F.2d at 886. Thus, cross-examination was
not improperly curtailed.
{¶ 180} For these reasons, we reject proposition of law No. 9.
7. Other Hearsay and Confrontation Challenges: Proposition of Law No. 11
{¶ 181} In proposition of law No. 11, McKelton argues that the admission
of hearsay evidence violated the Rules of Evidence and the Confrontation Clause.
We will not reverse a trial court’s ruling on evidentiary issues absent an abuse of
discretion and proof of material prejudice. See State v. Belton, __ Ohio St.3d __,
2016-Ohio-1581, __ N.E.3d ¶ 116.
a. “He choked her mother with a phone cord”
{¶ 182} Over objection, the prosecutor played a recording of a May 4, 2008
conversation between Z.D., Allen’s niece, and a 9-1-1 dispatcher. On the
recording, Z.D. related a statement by an out-of-court declarant, McKelton’s
daughter, who had “warned [her] about [McKelton], ’cause she said that he choked
her mother with a phone cord.”
{¶ 183} The statement by McKelton’s daughter is hearsay within hearsay,
which “is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in the [Ohio
Rules of Evidence].” Evid.R. 805. Z.D.’s out-of-court statements on the 9-1-1
recording were admissible under the excited-utterance or state-of-mind hearsay
exceptions. See Evid.R. 803(2) and (3). But the record does not indicate that
McKelton’s daughter described the phone-cord incident to Z.D. while “under the
stress of excitement caused by the event.” Evid.R. 803(2). Nor does it show that
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the statement went to McKelton’s daughter’s “then existing state of mind, emotion,
[or] sensation” about the incident. Evid.R. 803(3); 1980 Staff Notes, Evid.R.
803(3) (state-of-mind exception “does not include statements of belief of past
events” because doing so “would negate the entire proscription against hearsay
evidence”). The state has not identified any other hearsay exception that would
permit this statement, and this evidence should have been excluded.9
{¶ 184} Even so, McKelton was not materially prejudiced by the error.
Belton, __ Ohio St.3d __, 2016-Ohio-1581, __ N.E.3d ___, at ¶ 116. The trial judge
here expressly admonished the jurors not to consider anything in the 9-1-1 tape for
its truth; they were permitted to consider the recording only as evidence of Z.D.’s
“emotions and state of mind at the time” she called 9-1-1. This instruction
significantly minimized any potential harm to McKelton. In addition, the jury
heard far more prejudicial evidence from other witnesses that McKelton had choked
women, specifically Allen, in the past. Under these circumstances, the error in
admitting the phone-cord statement was harmless beyond a reasonable doubt. See
Crim.R. 52(A); State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d
1153, ¶ 28-29.
{¶ 185} McKelton also cannot establish a confrontation-clause violation.
Only testimonial hearsay implicates the Confrontation Clause. Davis, 547 U.S.
813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224. “[T]estimonial statements are those
made for ‘a primary purpose of creating an out-of-court substitute for trial
testimony.’ ” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930,
¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d
93 (2011). But “[s]tatements to friends and neighbors about abuse and
intimidation” are nontestimonial. Giles, 554 U.S. at 376, 128 S.Ct. 2678, 171
9
Given this conclusion, we need not consider McKelton’s alternative arguments that the statement
violated Evid.R. 403 or 404.
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L.Ed.2d 488. Here, the statement from McKelton’s daughter to Z.D. was
nontestimonial, and therefore no Sixth Amendment violation occurred.
b. Hearsay to describe a subsequent investigative step
{¶ 186} Two detectives related hearsay, over objection, while testifying
about their investigations of Allen’s murder. A law-enforcement officer can testify
about a declarant’s out-of-court statement for the nonhearsay purpose of explaining
the next investigative step. State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d
401 (1980). Testimony offered to explain police conduct is admissible as
nonhearsay only if it satisfies three criteria: (1) “the conduct to be explained [is]
relevant, equivocal, and contemporaneous with the statements,” (2) the probative
value of the statements is not substantially outweighed by the danger of unfair
prejudice, and (3) “the statements cannot connect the accused with the crime
charged.” State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181,
¶ 27. If testimony qualifies as nonhearsay, it does not implicate the Confrontation
Clause. Crawford, 541 U.S. at 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, fn. 9, citing
Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).
{¶ 187} Detective Witherell testified that during the Evans investigation, he
was told that on the night he disappeared, Evans got into a car with Donte Terry in
downtown Cincinnati. As a result, Witherell interviewed Terry and obtained his
DNA sample. The rumor was not inadmissible hearsay because the state did not
offer the statement for its truth. Witherell related the rumor only to explain how
his investigation progressed (and why police had tested Terry’s DNA). See Ricks
at ¶ 27; Thomas at 232. The trial judge instructed the jury not to rely on the rumor
for its truth. And contrary to McKelton’s assertions, the prejudicial impact of this
evidence did not outweigh its probative value. Evid.R. 403.
{¶ 188} Detective Luke explained why she began to look for Evans in
connection with the investigation of Allen’s death. She stated that she had gotten
a new lead on Evans in February 2009. Before Luke described what she heard, the
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trial court emphasized to the jurors that they should not take her testimony for its
truth and that it was being offered only to explain her state of mind. Luke then
testified that she had heard that Evans “was present during Missy’s homicide, that
he knew about it and that he was scared and that he may have either helped move
the body or that he was present in the house when Missy was killed.” This
information prompted Luke to call Crystal in an effort to locate Evans.
{¶ 189} Luke’s testimony violated Ricks because it went beyond the
nonhearsay purpose of explaining why she was trying to locate Evans; her
testimony also supported the state’s theory that McKelton killed Evans because he
had witnessed Allen’s murder. Viewed for its truth, Luke’s statement connected
the two deaths. As a result, McKelton was entitled to confront the informant who
gave Luke the information.
{¶ 190} Even so, the error was harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see
also State v. Jordan, 9th Dist. Summit No. 27005, 2014-Ohio-2857, ¶ 8-11
(evidence violated Ricks, but error was harmless beyond a reasonable doubt). The
trial judge instructed the jurors not to consider this part of Luke’s testimony for its
truth, and we presume that they followed the instruction. See State v. Loza, 71 Ohio
St.3d 61, 79, 641 N.E.2d 1082 (1994). Moreover, viewed alongside the state’s
other evidence against McKelton, we do not see a “ ‘reasonable possibility that the
evidence * * * might have contributed to the conviction.’ ” Chapman at 24, quoting
Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct.229, 11 L.Ed.2d 171.
c. Statements by spectators at Inwood Park
{¶ 191} Detective Karaguleff testified about statements he heard at Inwood
Park when the police were investigating the discovery of a body, later identified as
Evans. He said that Evans’s mother and family members, who insisted that the
victim was Evans, “believed that he was killed by his friend, Calvin McKelton
* * * because he helped move that lawyer’s body.” According to Karaguleff, the
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spectators made these statements in an “emotional” state; “[s]ome were crying,”
and they were “yelling, screaming, wailing.” Because McKelton did not raise
hearsay and confrontation-clause objections at trial, he has waived all but plain
error. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240.
{¶ 192} It is unclear whether these statements were admissible under the
excited-utterance exception in Evid.R. 803(2) or whether they violated McKelton’s
confrontation rights, because the record does not indicate whether the bystanders
spoke spontaneously, provided this information in response to police questioning,
or even had any firsthand knowledge regarding the location or identity of the body,
let alone the cause of death. But even assuming that a confrontation-clause
violation occurred, the error was harmless because “the probable impact” of the
statements “on the minds of an average jury” was negligible. Harrington v.
California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The jurors
heard other witnesses testify that McKelton had admitted killing Evans because he
had witnessed Allen’s murder. Thus, “there is [no] reasonable possibility that the
improperly admitted evidence contributed to the conviction,” and so the alleged
confrontation error was harmless beyond a reasonable doubt. Schneble v. Florida,
405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). For the same reason, the
admission of these statements did not rise to the level of plain error.
{¶ 193} Proposition of law No. 11 fails.
8. Irrelevant and Prejudicial Evidence: Proposition of Law No. 5
{¶ 194} In his fifth proposition of law, McKelton argues that the state
violated his constitutional rights by introducing numerous pieces of irrelevant and
prejudicial evidence, as well as character evidence, at trial, in violation of Evid.R.
403 and 404. Unless otherwise noted, McKelton did not object to this evidence at
trial, so we review his claims for plain error. See Barnes, 94 Ohio St.3d at 27, 759
N.E.2d 1240.
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a. Photographs of McKelton’s tattoos
{¶ 195} McKelton objects to the admission of several photographs of him
taken by police after Allen’s death, some of which depicted his tattoos. The police
had photographed the tattoos “just for identification purposes.” The prosecutor
mentioned the tattoos during closing arguments, stating, “It’s almost beyond
[parody] to sit here and imagine how it happened, the defendant having a tattoo that
says, straight killer, but that’s his [tattoo].”
{¶ 196} We agree that the tattoo photos should have been excluded under
Evid.R. 403. The photographs encouraged the jury to draw an improper inference
that McKelton committed the crimes charged because his tattoos showed his
comfort with death and guns. And other photographs at trial clearly confirmed
McKelton’s identity without depicting his tattoos. Thus, any minimal probative
value that the photos may have had was outweighed by the danger of unfair
prejudice.
{¶ 197} Nevertheless, given the overwhelming evidence of McKelton’s
guilt, we are unpersuaded that but for these photos, “the outcome of the trial clearly
would have been otherwise.” Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13
N.E.3d 1051, at ¶ 69.
b. Killing other witnesses
{¶ 198} Lemuel Johnson testified that McKelton offered to “take care of”
some witnesses for Johnson’s incarcerated brother and described his past success
in preventing witnesses (including Evans) from testifying. Defense counsel
objected. The court warned the jurors not to consider the testimony as evidence of
McKelton’s “character * * * in order to show that he acted in conformity or in
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accordance with that character.” 10 The state now argues that the evidence was
admissible to prove McKelton killed witnesses to silence them.
{¶ 199} Evidence of a certain modus operandi is admissible under Evid.R.
404(B) “because it provides a behavioral fingerprint which, when compared to the
behavioral fingerprints associated with the crime in question, can be used to identify
the defendant as the perpetrator.” State v. Lowe, 69 Ohio St.3d 527, 531, 634
N.E.2d 616 (1994). But to be admitted for this purpose, evidence of other acts
“must be related to and share common features with the crime in question.” Id.
{¶ 200} Here, Johnson’s testimony does not establish a distinctive
behavioral fingerprint. But Johnson’s testimony also established the context for
McKelton’s admissions about Allen and Evans. And the trial judge clearly
instructed the jurors that they could not rely on evidence about how McKelton
treated witnesses to show his character or for any other improper purpose. Thus,
we do not find error.
c. Witness intimidation
{¶ 201} Detective Gregory testified that he received a frantic phone call
from Michael Nix early on September 26, 2010. Nix said that an associate of
McKelton had approached him at a party and asked how McKelton’s trial was going
to go. Nix had replied that he did not know. The associate then left the party.
Twenty minutes later, someone fired shots at Nix from a passing car.
{¶ 202} This testimony is not improper evidence of another act. Instead, it
is evidence to support the charge that McKelton tried to prevent a witness from
testifying against him in this trial. Evidence that McKelton may have interfered
with a witness’s testimony in this trial is highly probative of his consciousness of
10
On redirect, the prosecutor alluded to the identity of other victims. McKelton argues that trial
court erred by overruling an objection to leading questions on this topic. But these questions were
not leading: they did not suggest an answer. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900
N.E.2d 565, at ¶ 149. And even if they had been, they did not prejudice McKelton because Johnson
had already testified that McKelton said he had killed multiple witnesses.
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guilt. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810,
¶ 68. Thus, this evidence was admissible.
d. “C Murderer”
{¶ 203} Detective Gregory stated that McKelton’s street name was “C
Murderer.” In State v. Gillard, this court held that the prosecutor’s repeated
references to the significance of the defendant’s nickname, “Dirty John,” were
“improper attempts to impugn Gillard’s character.” 40 Ohio St.3d at 230, 533
N.E.2d 272, abrogated on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686
N.E.2d 1112 (1997). By contrast, here the state made a single reference to
McKelton’s nickname and did not argue the significance of that nickname. We
cannot reverse for plain error, because “it is not clear that, had the nickname not
been improperly used, the outcome of the trial would have been different.” Id.
e. “Serial killer”
{¶ 204} Sheridan Evans testified that police should not have called Crystal
when looking for Evans because doing so “was like throwing meat to a tiger when
you know this man is a serial killer.” The danger of unfair prejudice from
Sheridan’s description of McKelton as a “serial killer” exceeded any possible
probative value. But because we are unpersuaded that this evidence was outcome-
determinative, we do not reverse for plain error.
f. “Killer” and “robber boy”
{¶ 205} Shaunda Luther testified that Allen referred to McKelton and his
companions, one of whom had been indicted for a triple homicide, as “killers” and
to McKelton as a “robber boy,” meaning a “person who robs other drug dealers.”
{¶ 206} Luther’s testimony showed that Allen was aware of McKelton’s
past criminal behavior and that Allen may not have reported McKelton’s repeated
domestic violence to police because she was afraid of McKelton. In other words,
the statements were offered to show Allen’s perception of McKelton and their
relationship, not to prove that he was a murderer or a robber. And the trial court
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reduced any danger of unfair prejudice by issuing a limiting instruction to the jury.
See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194.
{¶ 207} McKelton objects to the state’s implication that Audrey Dumas set
up robbery victims for him and that these schemes generated the money that she sent
to him in prison. She testified that she later refused to play the “role” of his girlfriend
because McKelton and Crystal had a baby. The state implied that by this “role,”
Dumas meant not only sending McKelton money, but also facilitating robberies and
providing an alibi. But this series of questions and answers was relevant to Dumas’s
status as a witness identified with an adverse party, and the trial court did not err by
admitting it.
g. Drug activity
{¶ 208} Several witnesses testified about McKelton’s drug activity. First,
Lemuel Johnson testified that he and McKelton were engaged in a drug-related
transaction when McKelton offered to take care of some witnesses for him. This
testimony provided context for McKelton’s offer to take care of the witnesses
against Johnson’s brother. The trial court twice instructed the jury not to draw
improper inferences from it. We presume that the jurors followed these
instructions. See Loza, 71 Ohio St.3d at 79, 641 N.E.2d 1082.
{¶ 209} Second, Crystal referred to McKelton’s drug activity when
answering the prosecutor’s questions about McKelton’s “business” and family
telephone numbers. Cell-phone records featured prominently in the police
investigation. and Crystal’s testimony explained why McKelton had more than one
phone number and why he changed his numbers once a week. Moreover, any error
in admitting this evidence was harmless because other witnesses spoke with more
detail about McKelton’s drug activity.
{¶ 210} Third, Charles Bryant testified that he and McKelton had engaged
in “dope dealing” in the past, but this testimony bolstered Bryant’s credibility as an
informant by providing context for McKelton’s confession to him. And Andre
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Ridley testified that Evans claimed that McKelton had given him 20 ounces of
cocaine, with an estimated value of $20,000 or $40,000, after the men moved
Allen’s body, which suggests that McKelton bribed Evans to keep him from
reporting Allen’s murder and for helping dispose of her body. These pieces of
evidence were highly probative, and their value far outweighed the danger of unfair
prejudice.
{¶ 211} Finally, McKelton objects to evidence about his “lavish lifestyle as
a drug dealer.” Luther testified that McKelton gave Allen significant amounts of
money. But evidence about Allen’s financial dependency on McKelton was
relevant to the state’s effort to establish a cycle of domestic violence, the first step
of which is “the tension building phase,” when tension keeps rising as a result of
economic-power issues in the relationship. And the prejudicial impact of this
testimony was minimal, given that Luther did not address the source of McKelton’s
money.
h. Rumors
{¶ 212} Several state witnesses said that they had heard rumors about who
was responsible for the murders. “Rumors * * * are prototypical examples of
inadmissible hearsay.” Weaks v. North Carolina Dept. of Transp., 761 F.Supp.2d
289, 306 (M.D.N.C.2007).
{¶ 213} Sheridan Evans testified about a conversation in which McKelton
had told her that “Pooh,” Michael McNeil, had killed Evans. She responded, “Well,
Pooh said you did it.” This testimony was offered to provide context for
McKelton’s threatening reaction when he was accused of the murder.
{¶ 214} Marcus Sneed testified that in two conversations, he asked
McKelton whether what “everybody was saying in the street” about the murders
was true. The testimony provided context for McKelton’s responses admitting
involvement in the murder of Allen and Evans.
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{¶ 215} 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 [her] brother’s death.” This testimony was presented to show Crystal’s state
of mind when she initially spoke to police.
{¶ 216} Lemuel Johnson testified on cross-examination that he believed
McKelton’s accounts about eliminating witnesses, saying, “I already knew from
the streets that he was telling the truth.” But defense counsel invited this testimony
by inquiring whether Johnson believed McKelton “was being serious about these
witnesses that he was telling [Johnson] about.”
{¶ 217} In all these instances, evidence was offered for a nonhearsay
purpose and not for the truth of the matter asserted. Accordingly, there was no
violation of hearsay rules or the Confrontation Clause. See Davis, 547 U.S. at 821,
126 S.Ct. 2266, 165 L.Ed.2d 224 (only testimonial statements implicate the
Confrontation Clause). And in each situation, the trial court reasonably permitted
the evidence under Evid.R. 403 because its probative value outweighed any unfair
prejudice to McKelton.
i. “Generalized testimony”
{¶ 218} McKelton next objects to the admission of allegedly prejudicial
“generalized” statements that he was unable to meaningfully refute at trial. Most
of the statements cited by McKelton are discussed elsewhere in this opinion. And
his remaining objections are meritless.
j. References to rap songs
{¶ 219} McKelton argues that the state attempted to vilify him by making
irrelevant and prejudicial references to rap songs.
{¶ 220} Andre Ridley testified that, by Evans’s account, McKelton had
gotten the idea to throw “some dope” by Allen’s body from a rap song. Ridley’s
reference to the rap song was a detail that lent credibility to Evans’s description of
how McKelton disposed of Allen’s body, which was crucial to establishing both
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that McKelton had committed crimes against Allen and that Evans had witnessed
those crimes.
{¶ 221} The trial court did not abuse its discretion by admitting this
evidence.
k. Battles Co.
{¶ 222} Over defense objection, Detective Witherell testified about a
jailhouse letter from McKelton to Crystal. The letter states, “[I]n July when we
find out everyone they are using, we gone get there records and post them up all
over * * * Co.” Immediately preceding “Co.” is a seven-letter word that begins
with a capital “B.” Witherell read the word as “Battles,” which he took to refer to
JC Battle & Sons Funeral Homes, Inc., a funeral parlor near Crystal’s home. He
thought that McKelton wanted to post the names of potential witnesses at a funeral
home to convey a “subtle” message that their safety was in peril. He explained that
he knew how “information is disseminated in certain [Cincinnati] neighborhoods”
and that the letter concerned him in light of “McKelton’s history in terms of
witnesses.”
{¶ 223} Evidence of plans to threaten witnesses was probative of
McKelton’s consciousness of guilt as well as McKelton’s method of operating, and
the defense had opportunity to press Witherell about the basis for his opinion. Thus,
we are not persuaded that this testimony violated Evid.R. 403. See Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 68.
l. McKelton’s treatment of women
{¶ 224} The state introduced other jailhouse letters from McKelton to
Crystal Evans that, according to McKelton, were not relevant. These letters did
include profanity, sexually explicit content, and racial comments. But they were
probative of his relationship with Crystal, and the state was entitled to explore that
relationship because she was his alibi. McKelton offers no explanation of how this
evidence unfairly prejudiced him.
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{¶ 225} The jury also heard a recorded jailhouse phone call in which
McKelton swore at Dumas repeatedly and demanded that she bring him money.
During the conversation, Dumas told McKelton that she did not wish to be involved
with him now that he had a son with Crystal. This evidence was relevant to explore
Dumas’s potential bias in favor of McKelton. And contrary to McKelton’s
suggestions, the state did not improperly rely on her testimony to encourage
inferences about his treatment of all women.
{¶ 226} Charles Bryant testified that McKelton advised him that “females
can’t be trusted,” are “good with lying,” and have to be watched. McKelton then
referred to Allen as “scandalous and running her mouth.” The state introduced this
evidence to show the course of the conversation in which McKelton confessed to
murdering Allen and to suggest a possible motive for that murder—McKelton did
not trust Allen. But the state did not imply that McKelton’s general attitude towards
all women explained why he killed Allen. Cf. State v. Johnson, 71 Ohio St.3d 332,
340, 643 N.E.2d 1098 (1994) (prosecutor impermissibly relied on defendant’s
general hatred of women—“evidence of a character trait” under Evid.R. 404(A)—to
prove that he killed a particular woman). Thus, the trial court reasonably allowed the
evidence under Evid.R. 403.
m. Gruesome photographs
{¶ 227} The state introduced 15 autopsy photographs of Allen’s body, each
capturing her injuries from a different angle or perspective. Allen’s body appears
decomposed and discolored in some photographs. Others show extracted body
parts.
{¶ 228} This court “strongly caution[s] judicious use” of gruesome photos
in capital cases. Morales, 32 Ohio St.3d at 259, 513 N.E.2d 267. Accordingly, a
gruesome photograph is admissible only if its “probative value * * * outweigh[s]
the danger of prejudice to the defendant.” Id. at 258. Moreover, even a photo that
satisfies the balancing test is inadmissible if it is “repetitive or cumulative.” Id.;
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see State v. Thompson, 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). A trial court’s
decision that a photo satisfies this standard is reviewable only for abuse of
discretion. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d
303, ¶ 69.
{¶ 229} Here, the state had the burden to prove that McKelton killed Allen
and committed gross abuse of her corpse, and these photos were probative of those
facts. See State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). The
photos were not repetitive or cumulative, because they depicted different injuries
to the face and neck, as well as insect activity that the coroner used to estimate time
of death. Cf. State v. Watson, 61 Ohio St.3d 1, 7, 572 N.E.2d 97 (1991) (five
autopsy photos of the same gruesome head wound were unnecessary and
cumulative since the defense had not disputed the manner and cause of death).
{¶ 230} McKelton also argues that the risk of undue prejudice was
especially great because one juror was prone to faint upon viewing gruesome
images. But the defense objected to excusing the juror for cause. In addition, the
record indicates that this juror responded only to photos of Evans, not to those of
Allen. Thus, there is no reason to believe the juror was unduly swayed by the
photos of Allen.
{¶ 231} Finally, McKelton says that the autopsy photos should not have
been reintroduced at the mitigation phase. Defense counsel objected at trial, and
the state argued that the photos were relevant to the crimes witnessed by Evans,
which provided the basis for the aggravating circumstance at sentencing. The trial
judge overruled the objection, but later instructed the jurors that they could consider
the “evidence in terms of whether it tends to prove or disprove an aggravating
circumstance[] of the case only,” and not for any other purpose. We must presume
that the jurors followed this instruction. Loza, 71 Ohio St.3d at 79, 641 N.E.2d
1082.
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n. Other “irrelevant or unfairly prejudicial evidence”
{¶ 232} McKelton next alleges that the trial court erred by admitting
“additional irrelevant or unfairly prejudicial evidence,” which was part of a
prosecutorial “campaign to depict [him] as the type of person who would commit
crimes like those charged.”
{¶ 233} First, McKelton objects to hearsay testimony that his daughter had
told Z.D. that he had “choked her mother with a phone cord” and warned Z.D. to
“watch out for” Allen. We addressed this argument in our analysis of proposition
of law No. 11.
{¶ 234} Second, the prosecutor introduced a copy of The Anarchist
Cookbook, a book published in 1971 “for entertainment purposes only,” that police
had found in Allen’s master bedroom. This book’s author describes it as a volume
“on all the subjects (from drugs, to weapons, to explosives) that are currently illegal,
but the publisher added the following disclaimer: “its recipe should not be used as
they do not pretend to be accurate.” The state argues that the book was relevant to
establishing that McKelton lived in Allen’s house. But the state did not introduce
evidence that the book belonged to McKelton. While the book appears to be at least
partly satirical, given its title, the book should not have been admitted. But given the
overwhelming evidence of McKelton’s guilt, its admission did not rise to the level of
plain error.
{¶ 235} Third, McKelton argues that the prosecutor asked Melinda Nagel,
Allen’s physical therapist, an inflammatory, hypothetical question that was
unsupported by the record. Generally, “[h]ypothetical questions directed to a
witness must be based on facts supported by or adduced from the evidence.” Olsen
v. Elec. Auto-Lite Co., 164 Ohio St. 283, 284, 130 N.E.2d 363 (1955). But here the
defense introduced this line of inquiry on cross-examination by asking Nagel how
she would have treated Allen if Allen had reported being hit with a baseball bat.
The prosecutor “pick[ed] up on” this line of questioning on redirect, asking, “[I]f
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[Allen] had told you her boyfriend broke her ankle by slamming a car door on it
repeatedly, would that have changed your treatment plan * * *?” This was a fair
response to the defense’s cross-examination.
{¶ 236} Fourth, Charles Bryant testified that he and McKelton had been
driving around drinking when they discussed Allen. Bryant said that he had been
smoking marijuana and drinking Grey Goose with cranberry, while McKelton had
been drinking straight Grey Goose. These details lent credibility to Bryant’s
testimony about McKelton’s confession by establishing the context of their
conversation, and the trial court reasonably decided to admit them under Evid.R.
403.
{¶ 237} Bryant testified that he had met McKelton in jail when McKelton
was charged with either intimidation of a witness or contempt of court. Any
probative value in explaining the circumstances under which Bryant met McKelton
was substantially outweighed by the danger of unfair prejudice because McKelton
was on trial for an unrelated charge of witness intimidation. Even so, we find no
basis to reverse for plain error; notably, McKelton was acquitted on the witness-
intimidation charge in this case.
{¶ 238} Finally, Marcus Sneed testified that he had known a man named
“Fat Boy” who “[e]nded up alongside of a road.” According to Sneed, McKelton
had talked to Sneed about setting Fat Boy up to be robbed. The trial court sustained
a defense objection to this testimony and instructed the jury to disregard it. We
presume that the jury followed the trial court’s instruction. See Loza, 71 Ohio St.3d
at 79, 641 N.E.2d 1082.
{¶ 239} For all these reasons, we reject McKelton’s fifth proposition of law.
C. Jury Instructions and Verdict Forms
1. Trial Phase: Proposition of Law No. 12
{¶ 240} In proposition of law No. 12, McKelton argues that his
constitutional rights were violated because (1) the state did not present a cohesive
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theory about Germaine Evans’s death, (2) the jury received instructions on
complicity but no verdict form on it, and (3) the jury did not reach a unanimous
verdict on whether McKelton was the principal offender or only complicit in
Evans’s death.
a. Factual background
{¶ 241} The state charged McKelton with the aggravated murder of Evans
under R.C. 2903.01(A). In a bill of particulars, the state alleged that McKelton
caused Evans’s death “by a single gunshot wound to the back of the head.”
McKelton later filed a notice of alibi for the night Evans died, but the state did not
amend the bill of particulars to allege that McKelton had aided or abetted in the
killing of Evans.
{¶ 242} At trial, the state sometimes implied that McKelton himself had
shot Evans and at other times suggested that McKelton had orchestrated the murder.
The state offered no evidence of who fired the shot if not McKelton. Over defense
objection, the trial court agreed to instruct the jury on complicity. The defense then
requested a special verdict on that issue, arguing that the jury needed to
unanimously find either that McKelton was the principal offender or that he had
“solicited, aided, abetted or procured” the murder. The defense offered no legal
authority that such an instruction was required. The trial court denied the request.
b. Analysis
{¶ 243} McKelton alleges several errors related to complicity. First, he
says that the state’s inconsistent theories of the case “did not present sufficient
evidence to find that McKelton killed Evans beyond a reasonable doubt.” We will
address this argument in our analysis of McKelton’s sufficiency claim in
proposition of law No. 13.
{¶ 244} Second, he argues that the trial court erred by instructing the jury
on complicity. Under R.C. 2923.03(F), “[a] charge of complicity may be stated in
terms of [that] section, or in terms of the principal offense.” Accordingly, a
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defendant who is “indicted for aggravated murder in terms of the principal offense
* * * [is] on notice that evidence could be presented that he was either a principal
offender, or an aider and abetter.” State v. Ensman, 77 Ohio App.3d 701, 703, 603
N.E.2d 303 (11th Dist.1991). This is true even when the state has issued a bill of
particulars that refers to a defendant only as the principal offender. See Hill v.
Perini, 788 F.2d 406, 407-408 (6th Cir.1986). As a result, a jury instruction on
complicity is proper as long as “the evidence adduced at trial could reasonably be
found to have proven the defendant guilty as an aider and abettor.” State v.
Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040 (1976), paragraph five of the
syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156
(1978).
{¶ 245} McKelton argues that the Perryman rule applies only when the
defendant presents evidence of complicity at trial, while here, the state introduced
evidence to support a finding of complicity. But McKelton’s narrow reading of
Perryman is inconsistent with the broad language of the court’s syllabus in that
case, which “unequivocally approved of the practice of charging a jury regarding
aiding and abetting even if the defendant was charged in the indictment as a
principal.” State v. Payton, 8th Dist. Cuyahoga Nos. 58292 and 58346, 1990 WL
48952, *8 (Apr. 19, 1990).
{¶ 246} A complicity instruction was proper here because the evidence could
reasonably be found to have proven that McKelton was an aider and abettor. The
jury could have reasonably interpreted his admissions to having killed Evans to mean
either that he was the principal offender or that he encouraged, cooperated with, or
incited someone else to commit the crime.
{¶ 247} Finally, McKelton objects that the trial court “created an
unacceptable risk” that the jury did not unanimously convict him of aggravated
murder because it did not provide for a separate verdict on complicity. Under Ohio
law, “there is no distinction between a defendant convicted of complicity or as a
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principal offender.” State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-
Ohio-6969, ¶ 70. And the state need not even prove “[t]he identity of the principal
* * * to establish the offense of complicity by aiding and abetting.” In re T.K., 109
Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus.
{¶ 248} We have previously rejected claims that a unanimity instruction is
required under similar circumstances. See State v. Stojetz, 84 Ohio St.3d 452, 458,
705 N.E.2d 329 (1999). Likewise, several intermediate appeals courts have held
that a trial court need not “provide separate jury verdict forms for the principal
offense and complicity to that offense.” State v. Horton, 10th Dist. Franklin No.
13AP-855, 2014-Ohio-2785, ¶ 10 (citing cases). By the same reasoning, we reject
McKelton’s claim that the trial court was required to give specific instructions or
provide for a separate verdict on complicity.
{¶ 249} For these reasons, proposition of law No. 12 fails.
2. Mitigation Phase: Proposition of Law No. 18
{¶ 250} In proposition of law No. 18, McKelton claims that the trial judge
improperly allowed the jury to determine which evidence from the trial phase was
relevant for sentencing. McKelton did not raise this objection below, so plain-error
review applies. See State v. Bey, 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999).
{¶ 251} After mitigation-phase opening arguments, the trial court advised
the jury that the state had “reintroduced evidence * * * which is relevant to the
aggravating circumstances.” He further explained that the jury would “not have all
the evidence that [it] previously considered” because some of the trial-phase
evidence was irrelevant to the jury’s sentencing consideration.
{¶ 252} The trial judge told the jurors that they could consider only a single
aggravating circumstance: that McKelton purposely killed Evans to prevent his
testimony in a criminal proceeding. The jury was told to “consider all of the
testimony and evidence relevant to the aggravating circumstance the Defendant was
found guilty of committing.” Later the judge clarified,
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Some of the evidence and testimony that you considered in the
trial phase of this case may not be considered in this sentencing
phase. For purposes of this proceeding, only that evidence
admitted in the trial phase that is relevant to the aggravating
circumstance and to any of the mitigating factors is to be
considered by you. You will also consider all of the evidence
admitted during this sentencing phase.
The judge warned the jury to consider only those exhibits that he gave to the jury
foreperson.
{¶ 253} When evaluating claims that a trial judge left relevance
determinations to the jury at the sentencing phase, we consider “the penalty-phase
instructions as a whole.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12
N.E.3d 1112, ¶ 214. As long as the instructions “adequately informed the jury as to
the evidence to consider during the penalty phase,” we will not find error. Id. We
have rejected similar claims when instructions (1) limited the jury’s consideration of
the guilt-phase evidence to the relevant aggravating circumstances and the mitigating
factors, id., and (2) made it “clear that the jury would see only those guilt-phase
exhibits that the trial judge admitted and deemed relevant.” Lang, 129 Ohio St.3d
512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 251.
{¶ 254} Here, the trial judge satisfied both requirements. Viewing the
instructions as a whole, we find that it is reasonable to conclude that “the jury
understood that they would see only the evidence that the trial judge deemed
relevant.” (Emphasis sic.) State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853,
854 N.E.2d 150, ¶ 152. Moreover, it was clear that only one aggravating
circumstance was relevant for sentencing purposes.
{¶ 255} Accordingly, we reject proposition of law No. 18.
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D. Prosecutorial Misconduct: Propositions of Law Nos. 8 and 17
{¶ 256} In proposition of law Nos. 8 and 17, McKelton alleges due-process
violations because of cumulative prosecutorial misconduct.
{¶ 257} When reviewing a claim of prosecutorial misconduct, “[t]he
relevant question is whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” Darden
v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431
(1974). To answer that question, we consider whether the conduct was improper
and whether it prejudicially affected the defendant’s substantial rights. Maxwell,
139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 243. In evaluating
prejudice, we determine the effect of the misconduct “on the jury in the context of
the entire trial.” Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203.
1. Good-Faith Basis for Questions
{¶ 258} McKelton argues that the prosecutor lacked a good-faith basis to
ask questions posed to Mindie Nagel and Audrey Dumas. Because McKelton did
not raise this objection at trial, the prosecutor did not have an opportunity to explain
the basis for his questions on the record. Under these circumstances, we presume
that a good-faith basis existed. Gillard, 40 Ohio St.3d at 231, 533 N.E.2d 272;
Blackshere, 1997 WL 82808, at *4.
2. Inflammatory Victim-Impact Evidence
{¶ 259} McKelton objects that the prosecutor improperly introduced
inflammatory victim-impact evidence. Victim-impact evidence that relates only
“to the personal characteristics of the victim and the emotional impact of the crimes
on the victim’s family,” Payne v. Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597,
115 L.Ed.2d 720 (1991), is generally inadmissible at the trial phase, but such
evidence can be admissible if it also “relat[es] to the facts attendant to the offense,”
State v. Fautenberry, 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995).
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{¶ 260} The alleged victim-impact testimony that McKelton identifies is
either not the victim-impact testimony discussed in Payne, which relates only to the
victim’s personal characteristics or the emotional impact on the victim’s family, or
it relates only to the facts attendant to one of the charged offenses. See id. As such,
this evidence cannot form the basis of a misconduct claim.
3. Character Evidence
{¶ 261} According to McKelton, the prosecutor repeatedly presented “him
as a cold, unrepentant criminal who used threats to control people.” McKelton cites
three exchanges that revealed information about his criminal history and drug
activity: (1) Detective David Gregory testified that he had listened to “hundreds of
hours of” recordings of McKelton’s jailhouse phone calls, (2) Crystal Evans
testified that McKelton “probably was selling drugs” in 2009, and (3) Detective
Keith Witherell testified about the “Battles” letter. Detective Gregory’s testimony
was not improper character evidence; it was relevant to establish that Gregory could
identify McKelton’s voice. And we have already explained in our analysis of
proposition of law No. 5 that Crystal’s and Witherell’s statements were properly
admitted.
{¶ 262} Because the evidence cited by McKelton was properly admitted,
we reject his claim that the prosecutor committed misconduct by introducing it.
4. Wilson’s Prior Inconsistent Statement
{¶ 263} McKelton alleges that the prosecutor engaged in misconduct by
using Wilson’s prior statement as substantive evidence. As explained in the
analysis of proposition of law No. 6, the prosecutor did err, but the error was not
outcome-determinative. Likewise, this conduct, viewed in isolation, did not
prejudicially affect McKelton’s substantial rights.
5. Leading Questions
{¶ 264} McKelton argues that the prosecutor engaged in misconduct by
“improperly ask[ing] leading questions of several witnesses.” He claims that “[t]he
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State essentially testified for its informants” on redirect. Beyond this broad assertion,
however, McKelton does not analyze any specific questions asked, or how they
prejudiced him. We therefore reject this claim of misconduct.
{¶ 265} McKelton also suggests that the prosecutor committed misconduct
by asking leading questions even after the trial court sustained defense objections
on that basis. We have recognized that prosecutorial misconduct can occur when a
prosecutor continues to ask leading questions even after the trial court has sustained
objections on that basis. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d
565, at ¶ 170. But in Diar, the prosecutor pursued a line of leading questions
immediately after the court ruled that they were improper. By contrast, McKelton
argues that the prosecutor should not have put leading questions to other witnesses
after the trial court sustained objections to leading questions. Moreover, McKelton
fails to identify specific leading questions that the prosecutor should have refrained
from asking in light of the trial court’s ruling.
6. Disclosure of an Incorrect Witness Address
{¶ 266} McKelton objects that the state engaged in misconduct by giving
the defense an outdated address for one of its witnesses, Andre Ridley. The
prosecutor explained that the error was unintentional and argued that no prejudice
had occurred because McKelton’s investigator had not even gone to the address
provided. The trial judge offered to remedy the error by permitting the defense
investigator to speak with Ridley and allowing the defense to call Ridley as a
witness during its case-in-chief. Defense counsel said they would let the court
know whether they wanted to pursue that course by the next morning, but there is
no further discussion of the issue on the record. The defense called no witnesses in
its case-in-chief.
{¶ 267} Under these circumstances, McKelton has failed to establish
prejudice.
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7. Mischaracterizing Evidence
{¶ 268} In addition, McKelton claims that the prosecutor mischaracterized
three pieces of evidence adduced at trial. He asserts that these “ ‘improper
insinuations and assertions calculated to mislead the jury’ ” violated his right to a
fair trial, quoting Berger v. United States, 295 U.S. 78, 85 (1935). He did not object
at trial, so plain-error review applies. State v. Hanna, 95 Ohio St.3d 285, 2002-
Ohio-2221, 767 N.E.2d 678, ¶ 84.
{¶ 269} First, during closing argument, the prosecutor referred to one of
McKelton’s tattoos, which had the words “scandalous life” in it, and asked the jury,
“Do you remember hearing scandalous come up again?” He then said that Charles
Bryant had testified that McKelton had “called [Allen] a scandalous bitch” and had
confessed to choking her. According to the trial transcript, however, Bryant
testified that McKelton, using a “whole lot of foul words,” had said that Allen “was
scandalous and running her mouth.”
{¶ 270} There is some disparity between the prosecutor’s description of
Bryant’s testimony and his actual testimony. However, before closing arguments
began, the trial court instructed the jury:
[I]f the attorneys represent facts and they are different than
what you recall, you are to rely upon your collective memory
during deliberations to decide whether or not those facts have
been proven or not proven based upon the instructions of law.
Here, “a review of the challenged remarks demonstrates that the prosecutor simply
set forth what he thought the evidence showed.” State v. Banks, 8th Dist. Cuyahoga
No. 97084, 2012-Ohio-2495, ¶ 41. And “[e]ven if the prosecutor’s description of
the witness’s testimony was inaccurate, the trial court nevertheless instructed the
jury to rely on its own recollection of the evidence.” Id.
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{¶ 271} Second, the prosecutor argued that Gerald Wilson, who had
recanted on the witness stand, addressed McKelton as he left the courtroom.
According to the prosecutor, Wilson “got up and looked at Calvin and goes, I got
you. I got you, bud or bro, whatever that last word was. You’ll have to use your
memory. He looked right at him, nodded. I got you back.” The transcript indicates
that Wilson said, “Later on, Bro.”
{¶ 272} As with Bryant’s testimony, the prosecutor merely related his own
observations about Wilson’s testimony, which were not entirely confirmed by the
record. But the jury was told to rely on its own recollection of the evidence, and
McKelton offers no evidence that the jury disregarded that instruction.
{¶ 273} Finally, the prosecutor argued that McKelton had asked Audrey
Dumas to provide an alibi for both murders. According to the prosecutor, after he
killed Evans, McKelton thought, “I’m going to be with Crystal, and I’m going to
have Audrey blowing my phone up all night long, so that later I can say, hey, I’m
asleep with Crystal.” The prosecutor also argued that McKelton expected Dumas
to play her “role”—whether it was providing McKelton an alibi or bringing him
money—and if she failed to do so, McKelton would threaten her.
{¶ 274} A prosecutor is entitled, as is defense counsel, to “wide latitude in
summation as to what the evidence has shown and what reasonable inferences may
be drawn therefrom.” State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773
(1970). Counsel are permitted to “present their most convincing positions.” State
v. Phillips, 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). Here, the prosecutor
reasonably exercised this latitude by drawing on Dumas’s testimony, phone
records, and other evidence to argue that she was not a credible alibi witness. We
conclude that these comments were proper.
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8. Prosecutorial Comments about McKelton’s Unsworn Statement
{¶ 275} McKelton says that the cumulative effect of the prosecutor’s
improper comments about, among other subjects, McKelton’s unsworn statement
during mitigation-phase closing arguments rendered his trial unfair.
{¶ 276} McKelton’s unsworn statement did not mention Missy Allen or
Germaine Evans. In closing argument, the prosecutor said:
You heard Calvin McKelton tell you, let me talk to you about
why we’re here. And you never heard him say Missy’s name.
You never heard him talk about Germaine Evans’ death. * * *
And you never heard Calvin McKelton say a single word about
it.
{¶ 277} When a defendant chooses to make an unsworn statement, a
prosecutor “may comment that the defendant’s statement has not been made under
oath or affirmation.” State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988),
paragraph two of the syllabus. However, misconduct occurs when a prosecutor
“refer[s] not only to credibility but also to appellant’s silence on particular issues.”
Lorraine, 66 Ohio St.3d at 419, 613 N.E.2d 212.
{¶ 278} Here, the state concedes that its closing argument “cross[ed] [the]
line in a couple of passing phrases.” The prosecutor erred by commenting on
McKelton’s silence regarding Allen and Evans. But viewed in the context of the
weight of the aggravating circumstance, these statements did not affect McKelton’s
substantial rights.
9. Reference to Improper Aggravating Circumstances
{¶ 279} McKelton says that the prosecutor “improperly referred to facts
unrelated to the aggravating circumstance as ‘the weight that goes on the side of
that specification.’ ”
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{¶ 280} During the sentencing phase of a capital trial, a prosecutor “may
introduce and comment upon * * * any evidence raised at trial that is relevant to
the aggravating circumstances specified in the indictment of which the defendant
was found guilty.” State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995),
syllabus. But the prosecutor may not “describe nature and circumstances evidence
as a statutorily defined aggravating circumstance.” Id. at 422. See State v. Davis,
38 Ohio St.3d 361, 367-373, 528 N.E.2d 925 (1988)).
{¶ 281} Here, a single aggravating circumstance was before the jury at
sentencing: McKelton killed Evans to prevent his testimony in a criminal
proceeding. R.C. 2929.04(A)(8). The prosecutor directed the jury’s attention to
this specification and argued that the following is “weight that goes on the side of
that specification”: (1) Evans knew that McKelton killed Allen, dumped her body,
and attempted to burn her house, (2) McKelton knew that Evans was aware of these
facts and was the only person who could connect him to those crimes, and (3)
Evans’s dead body was found in a park, and McKelton never paid his respects.
{¶ 282} The prosecutor should not have discussed McKelton’s failure to
pay respect to Evans, but, viewed in context, this error did not affect McKelton’s
substantial rights. The prosecutor made clear that only one specification was at
issue and advised the jury to weigh that against all the mitigation evidence. In
addition, the trial judge accurately instructed the jury on the weighing process and
told the jurors that they could “not consider the nature and circumstances of the
crime as an aggravating circumstance.” The remaining facts regarding the crimes
witnessed by Evans tended to prove the essential elements of the specification, and
the prosecutor’s discussion of those facts was therefore proper.
10. Prosecutor’s Focus on Allen, Rather Than Evans
{¶ 283} Next, McKelton objects that the prosecutor focused more on
Allen’s death than Evans’s during the mitigation phase, even though the killing of
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Evans was the capital offense. By doing so, he says, the prosecutor turned the one
aggravating circumstance at issue into two.
{¶ 284} As already noted, during the mitigation phase of a capital trial, a
prosecutor may introduce evidence of and comment on any aggravating
circumstance for which a defendant was convicted. Gumm, 73 Ohio St.3d at 421,
653 N.E.2d 253. Here, the aggravating circumstance is predicated on the victim’s
having witnessed another criminal offense. Accordingly, the prosecutor was
permitted to discuss the underlying criminal offenses. We therefore reject
McKelton’s argument that the prosecutor turned one aggravating circumstance into
two.
11. Reference to the Prosecutor’s Childhood
{¶ 285} McKelton claims that the prosecutor erroneously compared their
childhoods during sentencing.
{¶ 286} “Neither the defense nor the prosecution may refer to evidence that
is not in the record.” State v. Brown, 38 Ohio St.3d 305, 316, 528 N.E.2d 523
(1988), fn. 7. Accordingly, counsel should not state facts of his or her own personal
experience during closing arguments. See State v. Beck, 2010 SD 52, 785 N.W.2d
288, ¶ 16; State v. Williams, 96-1023 (La. 1/2/1998), 708 So.2d 703, 716. When a
prosecutor did refer to matters outside the record, we found no prejudice because
the reference was “short, oblique, and justified as a reply to defense arguments and
elicit[ed] no contemporaneous objection.” Lott, 51 Ohio St.3d at 166, 555 N.E.2d
293.
{¶ 287} In closing argument, defense counsel first raised the issue of
childhood, contrasting McKelton’s background to his own. He stated he had been
raised in an upper-middle-class environment by parents who had high expectations
for their children. He contrasted that to the environment McKelton was raised in,
“where he had no expectations, where he had to fend for himself, * * * where
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violence, robbery, prostitution and drugs are [the] norm.” He said it was rare for
people to overcome those obstacles.
{¶ 288} In rebuttal, the prosecutor cited his own childhood experiences: “I
know what it’s like to grow up in the projects. I was sitting at the kitchen table,
had a single mother open up a can of Spaghetti’Os and offer those to everybody. I
didn’t grow up to be a murder[er].”
{¶ 289} The prosecutor erred by alluding to his own personal experience,
but no prejudice occurred because all three Lott criteria are satisfied here. The
reference was brief, the comments were justified in response to defense counsel’s
comparison of McKelton’s childhood to his own, and McKelton did not object at
trial. Under these circumstances, no prejudicial error occurred.
12. Autopsy Photos
{¶ 290} McKelton recasts as prosecutorial misconduct his claim that it was
error to reintroduce Allen’s autopsy photos during mitigation. As explained in the
analysis of proposition of law No. 5, the trial court did not err in this regard. “If
the evidence was properly admitted, then the prosecutor’s decision to offer it cannot
form the basis of a misconduct claim.” Mammone, 139 Ohio St.3d 467, 2014-Ohio-
1942, 13 N.E.3d 1051, at ¶ 116.
13. Cumulative Prejudice
{¶ 291} Finally, McKelton argues that the cumulative effect of the
prosecutor’s misconduct deprived him of a fair trial, undermining his conviction
and his sentence. Viewed in context of the trial, we cannot conclude that the
prosecutor’s conduct prejudicially affected McKelton’s substantial rights. See
Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203.
{¶ 292} For all these reasons, we reject proposition of law Nos. 8 and 17.
E. Ineffective Assistance of Counsel: Proposition of Law Nos. 15 and 16
{¶ 293} In his 15th and 16th propositions of law, McKelton argues that
counsel provided constitutionally ineffective assistance. To establish ineffective
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assistance, McKelton must (1) show that counsel’s performance “fell below an
objective standard of reasonableness,” as determined by “prevailing professional
norms” and (2) demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. When
performing this analysis, we “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689.
1. Trial Phase
{¶ 294} McKelton argues that defense counsel “failed in several ways to
provide a basic defense” for him at the trial phase.
{¶ 295} First, McKelton recasts several propositions of law as ineffective
assistance because trial counsel failed to object. We have rejected each of the
underlying propositions on its merits. The same reasoning, taken to its logical
conclusion, also justifies our denial of McKelton’s Strickland claim.
{¶ 296} Second, McKelton says that trial counsel should have voir dired the
jury after “a courtroom incident” that occurred on October 8. As an unidentified
man left the courtroom for an afternoon break, he “said something towards the
prosecution and towards the defense table.” According to defense counsel, 11
jurors were in the courtroom at the time of the “outburst.” The judge offered “to
voir dire the jury * * * to make sure that none of [the jurors] saw anything which
they believe would in any way prejudice their ability to be fair and impartial.”
Defense counsel declined the offer. McKelton now claims that defense counsel
should have accepted.
{¶ 297} This “court generally will not second-guess counsel’s judgments
about what questions to ask on voir dire” when reviewing claims of ineffective
assistance during pretrial voir dire. State v. Johnson, 112 Ohio St.3d 210, 2006-
Ohio-6404, 858 N.E.2d 1144, ¶ 128. This deference is appropriate because
“counsel is in the best position to determine whether any potential juror should be
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questioned and to what extent.” State v. Murphy, 91 Ohio St.3d 516, 539, 747
N.E.2d 765 (2001).
{¶ 298} We apply the same deference to trial counsel’s decision here. Trial
counsel observed the incident, which he described as an “outburst” that “happened
very quickly.” Under the circumstances, counsel could reasonably decide not to
question the jury, and McKelton was not prejudiced by that decision.
{¶ 299} Third, McKelton argues that trial counsel were ineffective for not
trying to sever the first two counts of the indictment. Ohio “law favors joining
multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are
of the same or similar character.’ ” Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293,
quoting Crim.R. 8(A). But a defendant is entitled to severance under Crim.R. 14 if
he can affirmatively show prejudice. Id. Even then, the state can overcome a
defendant’s claim of prejudicial joinder by showing either that (1) it could have
introduced evidence of either of the offenses, if they had been severed for trial, as
“other acts” under Evid.R. 404(B) or (2) the “evidence of each crime joined at trial
is simple and direct.” Id.
{¶ 300} It is unlikely that the trial court would have granted severance.
Counts One and Two charged McKelton with felonious assault and domestic
violence for the May 2008 incident that resulted in Allen’s broken ankle. Counts
Four and Five charged him with felonious assault and domestic violence for the
July 2008 incident that resulted in Allen’s death. These four offenses are of similar
character, since they allege that McKelton committed the same offenses against the
same victim on two different occasions. See State v. Miller, 105 Ohio App.3d 679,
692, 664 N.E.2d 1309 (4th Dist.1995). And the evidence of each offense was “not
rendered more complex or confusing by joining the two counts of domestic
violence.” Id. Thus, McKelton would not likely have prevailed on a severance
motion, and his trial counsel were not ineffective for failing to object.
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{¶ 301} Finally, McKelton argues that trial counsel provided ineffective
assistance during plea negotiations. McKelton says that he rejected counsel’s
advice to take a plea bargain only because they had failed to adequately
communicate with him or investigate his case. But this claim is purely speculative.
See State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that
require evidence outside the record are not appropriately considered on direct
appeal). In addition, this assertion is undermined by evidence in the record. At a
pretrial hearing, McKelton told the trial judge that he had rejected the plea offer
because he wanted an opportunity “to prove [his] innocence.”
{¶ 302} McKelton’s reliance on two recent United States Supreme Court
decisions is also unavailing. See Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182
L.Ed.2d 379 (2012); Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398
(2012). In Frye, the Supreme Court held that trial counsel may be ineffective if
they fail to communicate the terms of a plea offer to a defendant. Frye at 1408.
And in Cooper, the Supreme Court held that prejudice may arise under Strickland
if counsel’s deficient performance caused a defendant to reject a plea deal that
would have resulted in a lower sentence. Cooper at 1385. Here the record indicates
that McKelton’s trial counsel explained the terms of the plea offer, but he rejected
their advice to accept the deal.
2. Mitigation Phase
{¶ 303} McKelton also alleges several instances of mitigation-phase
ineffective assistance of counsel.
{¶ 304} First, he contends that trial counsel’s mitigation presentation was
“barebones and not cohesive.” “The presentation of mitigating evidence is a matter
of trial strategy,” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d
433, ¶ 189, even if counsel’s chosen strategy proves unsuccessful, State v. Frazier,
61 Ohio St.3d 247, 255, 574 N.E.2d 483 (1991). Here, defense counsel presented
McKelton’s unsworn statement and the testimony of three witnesses about his
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difficult childhood and how he cares for his own children. On its face, we cannot
say that this mitigation presentation was deficient.
{¶ 305} But even if McKelton could prove deficient performance, he cannot
establish Strickland prejudice on this record. To do so, he would need to introduce
evidence to prove that “sufficient mitigating evidence existed that would have
called for a sentence less than death.” State v. Dixon, 101 Ohio St.3d 328, 2004-
Ohio-1585, 805 N.E.2d 1042, ¶ 62. This argument is “not appropriately considered
on a direct appeal.” State v. Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52
(2000).
{¶ 306} Second, McKelton objects that trial counsel were unprepared for
mitigation because they did not present any mitigation experts. Pursuant to defense
counsel’s application, the trial judge ordered $5,000 each “for an investigator, a
defense psychologist, and a mitigation expert.” The next month, the parties
informed the trial court that there was no reason to pursue any competency issues.
At that time, the judge asked defense counsel whether the investigator, forensic
scientist, and mitigation expert had “been retained and * * * [were] hard at work.”
Defense counsel said yes.
{¶ 307} The defense counsel clearly stated that they had retained various
experts. It is unusual for defense counsel not to present experts at a mitigation
hearing. Yet we have never held that presenting expert testimony in mitigation is
per se deficient performance. See, e.g., State v. McGuire, 80 Ohio St.3d 390, 399,
686 N.E.2d 1112 (1997) (hiring a mitigation specialist is not “a requirement of
effective assistance”). In fact, depending on the expert’s findings, such testimony
may have been grounds for an ineffective claim. Therefore, trial counsel may have
reasonably decided not to present a mental-health professional or a mitigation
specialist for strategic reasons. Indeed, the day before the mitigation hearing began,
counsel reassured the court that they had had a full opportunity to explore mitigation
experts and “everything that is necessary to present mitigation in this case.”
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{¶ 308} In any event, McKelton cannot show that he was prejudiced by the
alleged error. He does not identify any specific information that additional experts
would have uncovered or explain why that information would have prompted the
jury to recommend a life sentence. In fact, it would be impossible for him to make
such a showing without relying on evidence outside the record, which is not
permissible in a direct appeal. Keith, 79 Ohio St.3d at 536-537, 684 N.E.2d 47.
{¶ 309} Third, McKelton argues that defense counsel’s closing argument
was “devoid of advocacy and virtually gave the jury all the reasons it needed to
vote for death.” Trial counsel “are afforded wide latitude during closing
arguments.” Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 192.
Accordingly, “[d]ebatable trial tactics generally do not constitute a deprivation of
effective counsel.” Id.
{¶ 310} Defense counsel’s closing argument can be read as an effort to gain
the jurors’ trust and to give them a reason to impose a life sentence. He
acknowledged the jury’s guilt determination and emphasized that the mitigation
hearing was not about trying to excuse or minimize McKelton’s conduct. Given
the severity of McKelton’s crime, he advised the jurors to consider only the two
most severe sentencing options available to them: death or life imprisonment
without parole.
{¶ 311} Counsel then urged the jury to impose a life sentence, stressing two
significant mitigating factors: McKelton’s “character and his background.” After
reassuring the jurors that they need not like McKelton or his actions, counsel
explained that he was a product of his difficult upbringing and that he knew only
how “to sell drugs and be a menace to society.” He argued that McKelton could
function in prison, even if he had not been able to “conform his conduct to the
requirements of a civilized society.” With a life sentence, he would be able to guide
his three children away from his own path.
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{¶ 312} This closing argument was not devoid of advocacy and it did not
invite a verdict of death. Instead, counsel attempted to acknowledge the jurors’
likely feelings about McKelton and his actions while still giving them a reason to
spare his life. Viewed in context of the entire closing, the statements McKelton
objects to were part of a trial strategy meant to persuade the jury to not impose a
death sentence. See State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio- 4190, 813
N.E.2d 637, ¶ 160. As a result, this allegation of ineffective assistance fails.
{¶ 313} Additionally, McKelton argues that his counsel were ineffective for
not questioning a juror who was dismissed during mitigation-phase deliberations.
Nearly six hours after deliberations began, the jury sent the trial judge a note stating
that one juror was “not participating in this decision.” The trial court later indicated
that the juror in question had told the bailiff that she had hoped to leave because
her mother was scheduled to have surgery the next day. At defense counsel’s
request, the trial judge voir dired the juror. She said that she needed to be in
Virginia the next morning and could not “think of anything else.” The judge then
clarified: “So unequivocally you just do not want to continue and you’re refusing
to participate in any further discussions; is that an accurate statement?” The juror
agreed. The prosecution and defense declined to question the juror further, and the
court excused her. Defense counsel noted an objection for the record to excusing
the juror, but he could not identify any alternative way to proceed.
{¶ 314} McKelton asserts that trial counsel should have questioned the juror
further. He speculates that the juror—who did not ask to be excused—might have
been a 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 best position to evaluate whether further voir
dire was necessary to ascertain the juror’s true reason for refusing to participate.
See Murphy, 91 Ohio St.3d at 539, 747 N.E.2d 765. And we “generally will not
second-guess counsel’s judgments about what questions to ask on voir dire.”
Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 128. More
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important, McKelton’s assertion that the juror was a holdout is purely speculative,
so he cannot establish prejudice.
{¶ 315} McKelton’s claims of ineffective assistance are unpersuasive. We
reject proposition of law Nos. 15 and 16.
F. Trial Court Bias: Proposition of Law No. 19
{¶ 316} In proposition of law No. 19, McKelton argues that his trial was
fundamentally unfair as a result of the trial judge’s bias and failure to properly
control the presentation of evidence.
{¶ 317} In support of this claim, McKelton cites the errors alleged in
proposition of law Nos. 1 to 13, 17, 18, and 19 as proof that the trial judge
“continuously and to the point of showing bias permit[ted] the admission of
prejudicial, irrelevant and otherwise inadmissible evidence.” He also claims that
the trial judge erroneously considered that evidence when imposing a death
sentence. But short of pointing to errors alleged elsewhere in his brief, McKelton
does not cite any additional proof of judicial prejudice or bias.
{¶ 318} As a general rule, “a judge’s adverse rulings, even erroneous ones,
are not evidence of bias or prejudice.” In re Disqualification of Fuerst, 134 Ohio St.3d
1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14; see also State v. Sanders, 92 Ohio St.3d
245, 278, 750 N.E.2d 90 (2001). And nothing else in the record supports McKelton’s
claim of bias.
{¶ 319} We reject proposition of law No. 19.
G. Cumulative Error: Proposition of Law No. 21
{¶ 320} In proposition of law No. 21, McKelton argues that his convictions
and sentence should be reversed on grounds of cumulative error.
{¶ 321} 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
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individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.
{¶ 322} As explained above, several errors occurred at McKelton’s trial,
none of which rose to the level of reversible error. But errors “cannot become
prejudicial by sheer weight of numbers.” State v. Hill, 75 Ohio St.3d 195, 212, 661
N.E.2d 1068 (1996); see also State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-
5048, 873 N.E.2d 1263, ¶ 241. And here we are unconvinced that the cumulative
effect of these errors deprived McKelton of a fair trial.
{¶ 323} We reject proposition of law No. 21.
H. Sufficiency and Manifest Weight: Proposition of Law No. 13
{¶ 324} In proposition of law No. 13, McKelton challenges both the
sufficiency and manifest weight of the evidence to convict him for the aggravated
murder of Evans.
1. Sufficiency of the Evidence
{¶ 325} To resolve a sufficiency challenge, we must determine “whether,
after 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
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. Ohio’s aggravated-murder statute provides that
“[n]o person shall purposely, and with prior calculation and design, cause the death
of another.” R.C. 2903.01(A). Thus, the jury had to find beyond a reasonable doubt
that McKelton acted purposely, with prior calculation and design, to cause Evans’s
death.
{¶ 326} At trial, Marcus Sneed and Lemuel Johnson both testified that
McKelton had confessed to murdering Evans. Sneed testified that McKelton stated
that he had to murder Evans because Evans was the only one who could link
McKelton to Allen’s murder. And, according to Johnson, McKelton said he was
experienced with killing witnesses such as Evans. Johnson claimed that when a
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detective called Crystal looking for Evans, McKelton decided to kill Evans before
the detective found him.
{¶ 327} Viewed in a light most favorable to the prosecution, a rational juror
could have found the essential elements of aggravated murder beyond a reasonable
doubt based on this evidence alone.
2. Manifest Weight
{¶ 328} To evaluate a manifest-weight claim, we must review the entire
record, weigh the evidence and all reasonable inferences, and consider the
credibility of all the witnesses. State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). The court must decide “ ‘whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed.’ ” Id., quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 329} McKelton points to gaps in the state’s evidence and its reliance on
informants as reasons to overturn his conviction. The state’s case against McKelton
did not include eyewitness testimony, the weapon used to murder Evans, or any
forensic evidence linking him to Evans’s body or the crime scene. But Johnson and
Sneed did testify that McKelton admitted responsibility for Evans’s murder. And
contrary to McKelton’s suggestion, we need not entirely dismiss the testimony of
these witnesses just because they are jailhouse informants. Indeed, the credibility
of the informants is bolstered by other evidence that corroborates aspects of their
testimony.
{¶ 330} Although there are gaps in the state’s evidence, this is not an
“ ‘exceptional case in which the evidence weighs heavily against the conviction.’ ”
Id., quoting Martin at 175. Thus, we reject proposition of law No. 13.
I. Settled Issues: Proposition of Law No. 20
{¶ 331} Proposition of law No. 20 presents six oft-raised—and always
rejected—constitutional challenges to Ohio’s capital punishment scheme.
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McKelton also argues that Ohio’s death-penalty statutes violate international law
and treaties. We summarily reject these various claims. See, e.g., Fry, 125 Ohio
St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 215-216; State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 381-383.
J. Independent Sentence Evaluation
{¶ 332} We now independently review McKelton’s death sentence for
appropriateness and proportionality. See R.C. 2929.05(A). In conducting this
review, we must determine whether the evidence supports the jury’s finding of
aggravating circumstances, whether the aggravating circumstances outweigh the
mitigating factors, and whether this death sentence is proportionate to those
imposed in similar cases. Id.
1. Aggravating Circumstance
{¶ 333} McKelton was convicted of one count of aggravated murder and
two death specifications. However, because these specifications were merged
before sentencing, only one aggravating circumstance is before us: murder of the
witness to an offense for the purpose of preventing his testimony in a criminal
proceeding. R.C. 2929.04(A)(8).
{¶ 334} The evidence at trial supports the jury’s finding of this aggravating
circumstance beyond a reasonable doubt. Evidence indicated that Evans saw
McKelton murder Allen and that Evans helped to dispose of her body. On February
24, 2009, police contacted Crystal and said they wanted to discuss Allen’s death
with Evans. McKelton was at home with Crystal, and the state theorized that he
overheard the conversation. A few days later, Evans was murdered. Witnesses
testified that McKelton later admitted to murdering Evans because he was the only
person who could connect him to Allen’s death.
2. Mitigating Factors
{¶ 335} We must weigh the above aggravating circumstance against any
mitigating evidence about “the nature and circumstances of the offense” and
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McKelton’s “history, character, and background.” R.C. 2929.04(B). In addition,
we must consider the statutory mitigating factors under R.C. 2929.04: (B)(1)
(victim inducement), (B)(2) (duress, coercion, or strong provocation), (B)(3)
(mental disease or defect), (B)(4) (youth), (B)(5) (lack of significant criminal
history), (B)(6) (accomplice only), and (B)(7) (any other relevant factors).
a. McKelton’s mitigation hearing
{¶ 336} At the mitigation hearing, the defense presented three witnesses
and McKelton’s unsworn statement.
{¶ 337} Kayla McKelton, McKelton’s 13-year-old daughter, described him
as a “great father” and a “family man.” She said that he protects and cares for her,
motivates her, and promotes her education. He “has been the most important person
in [her] life” and she does not “know what [she] would do without him.” She gave
her opinion that her father is innocent and asked the jury to impose a life sentence.
{¶ 338} Audrey McKelton, McKelton’s mother, asked the jury to spare her
son’s life in hopes that God can save him and that he can save somebody else. She
testified about McKelton’s childhood in the projects. He was the second of Audrey’s
four children, born when she was 14 or 15 years old. His father, Calvin Johnson,
abused Audrey, ignored McKelton, and did not support his family. Johnson left when
McKelton was nine or ten years old.
{¶ 339} When McKelton was a child, Audrey was involved in prostitution
and drugs. She was more concerned with her drugs than her children. She has
convictions for felonious assault, solicitation, drug crimes, and trespassing, and she
has been arrested for robbery. When she learned that McKelton was selling drugs
in the projects, she was not concerned because she did not think he was hurting
anyone. Instead, she believed he had the life of glamour and fame that she had
wanted.
{¶ 340} Crystal Evans, the mother of McKelton’s son and the sister of
Germaine Evans, testified that she was “still in a state of shock” and “having a lot
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of mixed emotions about the whole situation.” She did not want McKelton “to get
the death penalty” because she generally opposes the death penalty. She asked the
jury to sentence McKelton to life in prison.
{¶ 341} Finally, McKelton gave an unsworn statement. He described how
the arrival of crack in his childhood neighborhood changed his life forever. He first
saw his mom get high when he was seven or eight years old. From then on, his
mother was absent, often disappearing for days. For several years, he lived with
his grandmother, where he slept on the floor.
{¶ 342} McKelton’s brother was convicted of selling drugs, and, by age 14,
McKelton was selling drugs himself. He used the money he made to care for his
brother and sisters. His grandmother kicked him out of her house, and he continued
to sell drugs. Later, he began robbing drug dealers and undercover federal drug
agents. McKelton said he has been shot several times, once in the back of the head.
His brother and several of his friends have been murdered.
{¶ 343} McKelton has become closer to his mother since his brother’s
death. He has three children, by three different women, and has a good relationship
with his daughters. He wants to develop a relationship with his son, who was born
while he was incarcerated awaiting trial. He wants an opportunity to teach his son
right from wrong, to help him with problems and homework, and to encourage him
to do something good with his life. McKelton also acts as a father to four nephews
and three nieces and has managed to keep them off the street so far. He wants to
“show [his] kids that they don’t have to end up like” him.
{¶ 344} Ultimately, McKelton asked the jurors to “consider sparing [his]
life.” He said that he wants to live and to be part of his children’s lives. He noted
that he had earned a GED during an earlier prison term and expressed hope of
attending college. He concluded, “I’m sorry for all the wrongdoings I ever done
and “I would like to apologize to everybody I ever hurt.”
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b. Weight of mitigating factors
{¶ 345} All the evidence McKelton presented in mitigation falls under the
rubric of “history, character, and background” or “any other factors that are
relevant.” R.C. 2929.04(B)(7). We find nothing mitigating about “the nature and
circumstances of the offense,” and we see no evidence of the statutory mitigating
factors enumerated in R.C. 2929.04(B)(1) through (6).
{¶ 346} McKelton presented evidence of his difficult childhood. He was
raised in the projects by a very young mother and a father who abused the mother
of his children and ignored his son. His father had left by the time McKelton was
11 years old. His mother used drugs and engaged in prostitution, often leaving
McKelton and his siblings to care for themselves. Her criminal record included
drug convictions, solicitation, trespassing, and felonious assault. By age 14,
McKelton was living with his grandmother and selling drugs. Soon enough, he had
his own list of criminal convictions. His difficult background is entitled to
significant weight.
{¶ 347} McKelton also presented some evidence of good character regarding
his closeness with family members. He said that he tries to be a positive role model
to his children, as well as to his nieces and nephews, by encouraging them to not
follow in his footsteps. McKelton’s desire to maintain a relationship with his children
is entitled to some weight.
{¶ 348} In his unsworn statement, McKelton indicated his desire for a
college education. He noted that during a past prison term, he had obtained a GED,
which indicates his ability to function while in prison. This desire for personal
improvement is also entitled to modest weight.
{¶ 349} Finally, McKelton apologized for all his wrongs and to everyone he
had hurt. However, he did not specifically mention Margaret Allen or Germaine
Evans. We assign minimal weight to McKelton’s general expression of remorse.
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3. Weighing
{¶ 350} The aggravating circumstance of Evans’s murder outweighs the
mitigating factors. McKelton has been convicted of murdering a friend who
witnessed and helped him cover up a murder. By comparison, the mitigating
evidence is weak. As a result, we find that the aggravating circumstances outweigh
the mitigating factors beyond a reasonable doubt.
4. Proportionality
{¶ 351} “We have approved death sentences in cases where the witness-
murder specification was present alone or in combination with one other
specification, even when substantial mitigation existed.” State v. Turner, 105 Ohio
St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 101. Also see Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 285-286 (murder in retaliation for
grand-jury testimony); Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d
150, at ¶ 212 (murder to prevent testimony in an upcoming murder trial). The death
penalty is appropriate and proportionate in this case, when compared to death
sentences approved in similar cases.
III. CONCLUSION
{¶ 352} We reject each of McKelton’s propositions and affirm his
convictions and sentence of death.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
PFEIFER, J., concurs in part and dissents in part, with an opinion.
O’NEILL, J., concurs in part and dissents in part, with an opinion.
_________________
PFEIFER, J., concurring in part and dissenting in part.
{¶ 353} I concur in the judgment of the majority affirming the
determination of McKelton’s guilt. I join Justice O’Neill’s dissent regarding the
inadequacy of trial counsel in the sentencing phase, except to the extent that it relies
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on his dissent in State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981
N.E.2d 900.
_________________
O’NEILL, J., concurring in part and dissenting in part.
{¶ 354} I concur in the majority’s resolution of Calvin McKelton’s various
propositions of law, with the exception of his 16th and 20th propositions.
Respectfully, I must dissent as to the majority’s rejection of McKelton’s argument
that his counsel were ineffective for failing to investigate a mitigation defense. I
would hold that State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), applies
in this unique case. Furthermore, I must dissent from the majority’s decision to
affirm McKelton’s sentence of death for the reasons I discussed in my dissent in
State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900.
Unreasonable Professional Assistance
{¶ 355} About one month before McKelton’s trial, the state revealed that
one of McKelton’s attorneys represented more than one of the state’s undisclosed
witnesses, suggesting conflict-of-interest issues during trial. That attorney
acknowledged his potential ethical conflict but said that he was reluctant to
withdraw because he was unsure whether McKelton’s other two co-counsel could
effectively represent him. Two weeks later, all three defense counsel filed a motion
for leave to withdraw from representation, for appointment of new counsel, and for
a continuance to allow new counsel to prepare for trial. The attorneys cited a
complete breakdown in the attorney-client relationship. That same day, McKelton
filed a handwritten motion requesting the removal of all defense counsel. At a
hearing on the motions two weeks before trial, the court granted the conflicted
attorney’s motion to withdraw. One of the two remaining attorneys, both certified
by the Ohio Supreme Court as lead counsel in capital-murder cases, told the court
that his and co-counsel’s relationship with McKelton had disintegrated to the point
that they could no longer “effectively represent him.” McKelton, speaking from a
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written statement, claimed, among other things, that his attorneys had not hired the
“special experts” necessary for his death-penalty case. He added that the two
remaining attorneys had met with McKelton privately only twice and that they had
pressured him in the presence of an officer to plead guilty in exchange for life
without parole, instead of properly investigating his case and going to trial. He
claimed that one of the remaining attorneys called him a “dumb n * * * r” after he
refused to take the plea agreement. He also asserted that they had aligned
themselves with the prosecutor.
{¶ 356} The court denied the motions to allow the remaining attorneys to
withdraw. He stated that the case preparations were proceeding in an orderly
fashion and that McKelton had had three attorneys and four experts11 working on
his case. The court further pointed to the American Bar Association’s 2003
Standards for Capital Litigation and told McKelton that he had been given more
than the minimum recommended defense team of two attorneys and one mitigation
expert. However, the record before us shows the hiring of only one investigator.
The investigator worked primarily with the conflicted attorney prior to trial. One
of the capital-certified attorneys met with the investigator once in June, and again
the 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.
{¶ 357} At the mitigation hearing, the attorneys did not present any
documentary evidence of the sort that a trained mitigation specialist might find or
provide.12 But I have no doubt that this evidence exists. The record shows that
11
At the arraignment almost eight months before, the court granted funds to hire an investigator, a
mitigation specialist, a mental-health professional, and forensic experts.
12
Mitigation specialists possess clinical and information-gathering skills and
training that most lawyers simply do not have. They have the time and the ability
to elicit sensitive, embarrassing and often humiliating evidence (e.g., family
sexual abuse) that the defendant may have never disclosed. They have the clinical
skills to recognize such things as congenital, mental or neurological conditions,
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McKelton was neglected as a child, when he was also exposed to his mother’s drug
use and prostitution. He grew up to become a violent and abusive adult. McKelton
and a witness detailed instances of heavy alcohol use in response to strong
emotional stimuli. In the modern era, people who live such a life generate a paper
trail. Yet at the mitigation hearing, McKelton’s attorneys presented only the
testimony of his daughter, his mother, and Crystal Evans, the sister of victim
Germaine Evan.
{¶ 358} To me, the record shows that McKelton’s attorneys did not hire,
but should have hired, a mitigation specialist to investigate his background, in
addition to one or more mental-health professionals if the mitigation specialist’s
investigation suggested a need. During our independent weighing of the mitigating
and aggravating factors in prior cases, we have given great cumulative weight not
only to direct evidence of a background of alcohol use, violence, and abuse like
McKelton’s but also to the testimony of an expert capable of explaining to a jury
the psychological and social effect that this sort of experience can have on a human
being. State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208,
¶ 118-124, 137. Accord State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847
N.E.2d 386, ¶ 86-96, 105; see also Goodwin v. Johnson, 632 F.3d 301, 324-326
to understand how these conditions may have affected the defendant’s
development and behavior, and to identify the most appropriate experts to
examine the defendant or testify on his behalf. Moreover, they may be critical to
assuring that the client obtains therapeutic services that render him cognitively
and emotionally competent to make sound decisions concerning his case.
Perhaps most critically, having a qualified mitigation specialist assigned
to every capital case as an integral part of the defense team insures that the
presentation to be made at the penalty phase is integrated into the overall
preparation of the case rather than being hurriedly thrown together by defense
counsel still in shock at the guilty verdict
(Footnote omitted.) American Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, Guideline 9.1, Commentary, reprinted in 31 Hofstra
L.Rev. 913, 959 (2003).
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(6th Cir.2011). Instead of arranging for the inquiry of a mitigation expert, counsel
went so far as to tell the jury that McKelton could have presented testimony of a
mental-health professional but that such testimony would have been “a bunch of
psycho babble.” Frankly speaking, a license to practice law does not qualify
counsel to make that decision for a client.13
{¶ 359} The majority points to trial counsel’s statements that they had hired
the experts for which funding had been authorized. Majority opinion at ¶ 73. But
the record shows that no expert with qualifying social work or psychological
degrees or experience showed up asking for even a small amount of money. This
strongly undermines the majority’s position about what happened while counsel
prepared for this case. The best the majority can say is that “trial counsel may have
reasonably decided not to present a mental-health professional or a mitigation
specialist for strategic reasons.” Majority opinion at ¶ 307. But on this record as a
whole, I must respectfully disagree. I believe it is much more likely that counsel
unreasonably decided not to engage any qualified person as a matter of expedience.
Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003),
quoting Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984) (“A decision not to investigate thus ‘must be directly assessed for
reasonableness in all the circumstances’ ”); State v. Johnson, 24 Ohio St.3d 87, 90,
494 N.E.2d 1061 (1986). And without someone qualified to screen McKelton for
13
Counsel’s own observations of the client’s mental status, while
necessary, can hardly be expected to be sufficient to detect the array of conditions
(e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning,
lead poisoning, schizophrenia, mental retardation) that could be of critical
importance. Accordingly, Subsection A(2) mandates that at least one member of
the defense team (whether one of the four individuals constituting the smallest
allowable team or an additional team member) be a person qualified by experience
and training to screen for mental or psychological disorders or defects and
recommend such further investigation of the subject as may seem appropriate.
(Footnote omitted.) American Bar Association Guidelines, Guideline 4.1, Commentary, reprinted
in 31 Hofstra L.Rev. at 956-957.
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the possible psychological and social consequences of his hard-lived background,
there cannot have been the constitutionally guaranteed reasonable professional
investigation. Strickland at 691 (“counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary”). Accord State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28
N.E.3d 1217, ¶ 76-77. For these reasons, I would hold that McKelton satisfied his
burden to prove unreasonable professional assistance.
Prejudice
{¶ 360} I believe that the circumstances in this exceptional case demand a
legal standard less rigid than the one applied under Strickland. Under Strickland,
“[a]n accused is entitled to be assisted by an attorney, whether retained or
appointed, who plays the role necessary to ensure that the trial is fair.” Id. at 686.
Counsel plays that role by subjecting the state’s case to “the crucible of meaningful
adversarial testing.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039,
80 L.Ed.2d 657 (1984). When an attorney fails to play that role, the Sixth
Amendment to the United States Constitution requires confidence in the reliability
of the outcome of a proceeding. Strickland at 696. For that reason, a professional
error by counsel “does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691.
{¶ 361} In Ohio as elsewhere, courts have boiled off the fat of the Sixth
Amendment, applying a mechanical “Strickland test” that requires meeting two
prongs: (1) demonstrating deficient performance of counsel and (2) demonstrating
prejudice. 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus, citing
Strickland at 691. In this case, the majority holds that McKelton cannot meet the
prejudice prong under Strickland, given the record before us. Majority opinion at
¶ 305. We “cannot look outside of the record” in a death-penalty appeal, State v.
Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 62, to determine
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what evidence a mitigation or mental-health specialist would have found or offered
for McKelton in support of a sentence less than death.
{¶ 362} In Hester, issued eight years before Strickland, we formulated a
somewhat different standard for determining ineffective assistance of counsel
under Article I, Sections 10 and 16 of the Ohio Constitution. Hester, 45 Ohio St.2d
71, 341 N.E.2d 304. There, we held that the test for ineffective assistance of
counsel under “the Fifth, Sixth and Fourteenth Amendments, and Sections 10 and
16 of Article I of the Ohio Constitution” was “whether the accused, under all the
circumstances, * * * had a fair trial and substantial justice was done.”14 Hester, 45
Ohio St.2d at 79, 341 N.E.2d 304. We decided to apply this test “on a case-to-case
basis,” likening that approach to application of the exclusionary rule under the
Fourth Amendment. Id. at 80. We are thus empowered to apply Hester selectively.
And we have been cautious in not letting these floodgates open too far, having
applied the “fair trial and substantial justice” standard only twice in the last century:
Hester and Cornwell v. State, 106 Ohio St. 626, 628, 140 N.E. 363 (1922).
{¶ 363} Despite rare application, Hester is nonetheless controlling
precedent governing the standard for ineffective assistance of counsel under
Sections 10 and 16 of Article I of the Ohio Constitution, as we have never explicitly
overruled it. Shortly after Hester, we elaborated upon this standard, saying that
when considering effective-assistance claims, a two-step analysis like the one that
would later be adopted in Strickland is “usually” applied. State v. Lytle, 48 Ohio
St.2d 391, 396, 358 N.E.2d 623 (1976), vacated in part on other grounds, Lytle v.
Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). After Strickland, we
commented, without any analysis, that “[t]he test enunciated in Strickland is
essentially the same” as the one we adopted in Hester and Lytle. State v. Smith, 17
Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985); see also Bradley, 42 Ohio St.3d at
14
The two-part test in Strickland preempts Hester on its interpretation of the United States
Constitution. United States Constitution, Article VI, cl. 2.
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141-142, 538 N.E.2d 373. But Hester is still good law. After all, the Ohio Supreme
Court does not overrule precedent sub silentio. See Westfield Ins. Co. v. Galatis,
100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 1 (“It is only with great
solemnity and with the assurance that the newly chosen course for the law is a
significant improvement over the current course that we should depart from
precedent”).
{¶ 364} As we said in Smith, the rules laid down in Strickland and Hester
are the same in essence, but they are not identical standards. Smith at 100. In the
typical case, “substantial justice” is done because the record suggests no reasonable
probability that the outcome of a proceeding would have been different. It is
analytically possible in rare and exceptional circumstances, however, that an
individual may be able to show that counsel’s assistance fell so far below the
minimum professional standards that the proceeding was basically unfair and
substantially unjust, even if the record suggests that the outcome of a proceeding
would probably not have been different. In those circumstances, Hester requires a
new trial.
{¶ 365} Hester is uniquely appropriate for application in capital-murder
cases because the demands of due process are at their strongest when the result of
a proceeding may be death. See Ford v. Wainwright, 477 U.S. 399, 414, 106 S.Ct.
2595, 91 L.Ed.2d 335 (1986) (discussing the “heightened concern for fairness and
accuracy that has characterized the [United States Supreme Court’s] review of the
process requisite to the taking of a human life”). This is especially true because
Hester’s standard is predicated upon both the guarantees of counsel, Ohio
Constitution, Article I, Section 10, and of due process under Ohio Constitution,
Article I, Section 16. Hester, 45 Ohio St.2d at 79, 341 N.E.2d 304. At its heart,
the Hester standard differs from Strickland because of the unique guarantee of
“justice” within Article I, Section 16 of our state constitution—a word that goes
unmentioned by the Bill of Rights or the Fourteenth Amendment to the United
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States Constitution. In contrast, Strickland’s standard is a pure creature of the Sixth
Amendment, which is focused upon the reliability of the proceeding. Strickland,
466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674. The United States Constitution
guarantees a fair trial under the Fourteenth Amendment through application of the
Sixth Amendment—not so much independently from it. Id. at 684-685.
{¶ 366} Throwing McKelton into the fray with attorneys he had barely met
was profoundly unfair: their task was to provide the jury with a detailed story of
the person that they represented. I am convinced that Calvin McKelton’s attorneys
were insufficiently prepared to go forward at the mitigation hearing due to a
professionally inadequate investigation prior to trial and the unexpected scramble
of taking over the work of another seasoned trial attorney. For these reasons, I have
no faith in the jury’s recommended sentence. I will not place the ends of justice—
a reliable outcome—before the means of justice in the context of a capital-
sentencing hearing. For that reason, I am entirely comfortable reversing Calvin
McKelton’s death sentence without strict proof in the record that counsel would
have turned up silver- bullet mitigation evidence had they hired an expert to look
for it. For me, it is enough that counsel did not hire an expert qualified to look
before deciding not to present any “psycho-babble.” Accordingly, I would apply
Hester, reverse McKelton’s death sentence, and remand for a new mitigation
hearing.
{¶ 367} The majority instead rejects McKelton’s argument that his
attorneys were ineffective for failing to conduct a complete investigation into his
background prior to mitigation. The majority does not limit or overrule our
decision in State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217,
¶ 102-104, in which we held that counsel have a duty to conduct at least enough
investigation of potential mitigation evidence to make a reasonable decision not to
investigate further. Rather, the majority thinks that McKelton’s ineffective-
assistance argument necessarily requires evidence of prejudice that may exist
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outside the record, which we cannot consider in this appeal. Majority opinion at
¶ 79; State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997).
McKelton’s prejudice claim is proper for a postconviction proceeding because he
could develop a record by which to compare the evidence found and presented by
postconviction counsel to the evidence presented by trial counsel. Keith at 536-
537, citing State v. Scott, 63 Ohio App.3d 304, 308, 578 N.E.2d 841 (8th
Dist.1989).
Collateral Proceedings
{¶ 368} McKelton’s postconviction petition is currently pending as a
discretionary appeal to this court. His petition to the trial court argued, among other
things, that counsel failed to conduct an adequate mitigation investigation,
requested leave to conduct discovery on that issue, and requested funds to hire “a
forensic ophthalmologist, a neuropsychologist and a substance abuse expert.” State
v. McKelton, 12th Dist. Butler No. CA2015–02–028, 2015-Ohio-4228, ¶ 4, 8.
McKelton’s petition was denied without a hearing, and not because he failed to
“ ‘set forth sufficient operative facts to establish substantive grounds for relief.’ ”
Id. at ¶ 10, quoting State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999),
paragraph two of the syllabus. Instead, McKelton’s petition was denied on the sole
basis of res judicata, because all the claims he raised had already been raised or
could have been raised in this appeal.
{¶ 369} The court of appeals affirmed on appeal, explaining that the same
ineffective-assistance argument this court now declines to address due to lack of
evidence in the record is the kind of argument that “could fairly have been
determined without resort to evidence outside the record.” McKelton, 2015-Ohio-
4228, ¶ 27, quoting State v. Sturgill, 12th Dist. Clermont Nos. CA2014–01–003
and CA2014–07–049, 2014–Ohio–5082, ¶ 13. As a result, there has been no
hearing or discovery, nor has there been any real consideration of the merits of
McKelton’s argument. Nobody has called trial counsel out onto the carpet to ask
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whether they came to a reasonable professional decision not to use the information
in McKelton’s “one thousand plus pages of exhibits” submitted with his
postconviction-relief petition, McKelton at ¶ 8, or simply never hired a mitigation
specialist qualified and trained to look for it.
{¶ 370} Justice has not been served. Even agreeing that McKelton is one
of the most dangerous criminals in the state, who admitted his own responsibility
in starting what sounds like a war among drug dealers in Cincinnati, he is a human
being, guaranteed the minimum constitutional protections of a fair trial, with
adequate counsel and meaningful appellate review. I sincerely hope that my
colleagues will take action when McKelton’s postconviction appeal comes before
the court for consideration. If we do not accept McKelton’s discretionary appeal,
his ineffective-assistance argument will have been denied by every court involved,
without a single judge taking a critical look at the evidence outside of the record
and determining whether his trial attorneys did or did not look for it.
{¶ 371} For these reasons, I dissent.
PFEIFER, J., concurs in the foregoing opinion except as noted in his separate
opinion.
_________________
Michael Gmoser, Butler County Prosecuting Attorney, and Michael A.
Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, Ohio Public Defender, and Rachel Troutman, Allen
Vender, and Shawn Welch, Assistant Public Defenders, for appellant.
_________________
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