State v. Maxwell

[Cite as State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019.]

THE STATE OF OHIO, APPELLEE, v. MAXWELL, APPELLANT.

[Cite as State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019.]

Criminal law—Right to confront witnesses—Sixth Amendment—Autopsy reports

and testimony by nonexamining deputy coroner—Aggravated murder—

Death penalty upheld.

(No. 2007-0755—Submitted June 5, 2013—Decided March 20, 2014.)

APPEAL from the Court of Common Pleas of Cuyahoga County,

No. 475400.

____________________

SYLLABUS OF THE COURT

An autopsy report that is neither prepared for the primary purpose of accusing a

targeted individual nor prepared for the primary purpose of providing

evidence in a criminal trial is nontestimonial, and its admission into

evidence at trial under Evid.R. 803(6) as a business record does not violate

a defendant’s Sixth Amendment confrontation rights.

____________________

LANZINGER, J.

{¶ 1} This is an appeal as of right by defendant-appellant, Charles

Maxwell, who has been sentenced to death for the aggravated murder of Nichole

McCorkle.

I. Trial Evidence

{¶ 2} Evidence introduced at trial showed that McCorkle and Maxwell had

a long-term relationship that began in 1999, living together on different occasions

over the next few years. They had one child, C.M., nearly four years old.

Nichole also had two other children, D.C. and D.K. In August 2005, she

purchased a single-family home at 1046 East 146th Street in Cleveland and lived

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there with her father and two of the children. Maxwell had a key to the side door

of the house and kept some clothes there.

The underlying assault

{¶ 3} The prosecution introduced evidence showing that on October 6,

2005, Nichole went to the hospital and received stitches for head injuries after

Maxwell struck her. Police came to the hospital and took Nichole’s report about

the incident. On the same date, Maxwell told John Gregg, a friend and coworker,

that he had pistol-whipped Nichole. On October 13, 2005, she obtained a

temporary protection order against Maxwell.

{¶ 4} Afterward, prosecutors presented felonious-assault charges against

Maxwell to the grand jury. Nichole was subpoenaed to testify before it on

November 23, 2005.

{¶ 5} Maxwell told Gregg that he was concerned about receiving prison

time for felonious assault. Maxwell knew about the temporary protection order

and that a warrant had been issued for his arrest. He had also learned that Nichole

was going to testify against him at the grand jury.

{¶ 6} At Maxwell’s behest, Gregg contacted Nichole about her grand jury

testimony in an effort to reduce the charges from felonious assault to a lesser

offense. Gregg asked Nichole to “stick to the story that it was a simple domestic;

she pushed him, he pushed her, she slipped and hit her head on the stove.”

A. Nichole’s grand jury testimony

{¶ 7} Following Nichole’s testimony on November 23, 2005, the grand

jury indicted Maxwell for felonious assault, abduction, and domestic violence.

Brian Mooney, an assistant prosecutor for Cuyahoga County, informed Nichole

that day that the grand jury had voted to indict and told her what the charges were.

Because of the Thanksgiving holiday, the indictment was not signed by the grand

jury foreman and filed with the clerk of court until November 28, 2005.

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{¶ 8} The evening of the grand jury’s decision, Maxwell called Gregg and

said that he had been trying to talk to Nichole about her grand jury testimony but

had been unable to contact her. Maxwell then called Nichole while Gregg

remained on the line and heard their conversation. Maxwell asked Nichole what

happened in court that day. Nichole told him, “I told the truth. I had to tell the

truth.” According to Gregg, Maxwell was very upset after the phone call and said

that “the bitch was going to make him kill her.” Maxwell also asked Gregg where

he could get a gun.

B. The events of November 26 and 27, 2005

{¶ 9} The prosecution presented evidence that on the evening of

November 26, 2005, Nichole and Willie Hutchinson met at a bar. Lauretta

Kenney, Nichole’s sister, had introduced Hutchinson to Nichole after the October

6 incident. Nichole and Hutchinson arrived at the bar in separate cars and had a

few drinks. When they departed, although Nichole had told Hutchinson that she

would call him when she got home, she did not. But Hutchinson called Nichole,

and a man answered the phone. Hutchinson then called Lauretta and told her to

check on Nichole.

{¶ 10} Near 2:30 a.m. on November 27, Lauretta called Nichole, and

Maxwell answered the phone. Maxwell immediately gave the phone to Nichole.

Lauretta asked Nichole why Maxwell was there and told her that he needed to

leave. According to Lauretta, Nichole said that “she was confused and she didn’t

know what was going on.”

{¶ 11} Lauretta then drove to Nichole’s home and arrived around 2:40

a.m. but did not see Maxwell’s car on the street or in the driveway. Lauretta called

Nichole, saying she was outside. Nichole “mumbled something” and then hung

up. Lauretta went onto the porch, and Nichole and Maxwell were standing next to

each other when Lauretta opened the screen door.

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{¶ 12} Lauretta told Maxwell that he was not supposed to be there and

needed to leave. Maxwell said that he was just talking to Nichole. Lauretta

testified, “I told him, there’s no talking, that you needed to leave.” He then called

Lauretta “a bitch” and said, “[I]f anybody’s leaving it’s going to be you.”

Maxwell then stepped back and pulled a gun from his pants. Nichole screamed,

“[O]h my God, Lauretta, he got a gun, run.” Lauretta then jumped off the porch

and started running. Lauretta heard two gunshots as she ran across the street and

heard a third gunshot after she crossed the street. Lauretta then saw Maxwell

kneeling down by Nichole.

{¶ 13} C.M., a day short of four years old, was standing near Maxwell and

Nichole when Lauretta came to the door. Later, when asked what she had seen,

C.M. testified, “He shoot my mommy.”

{¶ 14} Maxwell ran from the house after shooting Nichole and fled down

the street. Lauretta followed him for a short distance before he disappeared.

Shortly afterwards, police officers and emergency medical personnel arrived on

the scene. Nichole was taken to the hospital, where she died from her injuries.

{¶ 15} On the morning of November 27, Michelle Kenney, Nichole’s

other sister, called Gregg and told him that Maxwell had killed Nichole. Gregg

said that he then called Maxwell and asked him if he had killed Nichole. Maxwell

admitted killing her and recounted what happened. He said he had followed

Nichole from her home to the bar. She went into the bar, and Maxwell waited

outside in his car. He then went inside and saw Nichole and another man sitting

in the back of the bar “making out.” Maxwell then returned to his car and waited.

After they left the bar, he followed Nichole and the man as they drove in separate

cars to Nichole’s house. Nichole kissed the man and went into her house, and the

man drove away.

{¶ 16} Gregg also testified that Maxwell told him that he called Nichole

after the other man drove away and asked if he could come over. Nichole said he

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could, and Maxwell went to her house. Maxwell answered the phone at Nichole’s

house, including repeated calls from a man who asked to speak to Nichole. He

also answered a call from Lauretta. Maxwell told Gregg that “they started

arguing and then he confronted her about that night.” Lauretta then came to the

front door, and Maxwell “opened the door[,] pointed the gun and fired but she had

ran.” Then, Maxwell told Gregg, “he just turned around, shot Nichole and she fell

down and * * * she moved and then he shot her again.”

C. The Police Investigation

{¶ 17} Police investigators found two .25 caliber shell casings inside the

house. Investigators looked inside and outside the house for a third shell casing,

which they never found. Investigators also did not find any bullet holes inside or

outside the house.

{¶ 18} Dr. David Dolinak, a medical examiner with the Cuyahoga County

coroner’s office, conducted Nichole’s autopsy. Nichole suffered two gunshot

wounds to the head. One gunshot in the middle of the right eyebrow broke the

bones of the eye socket. The bullet did not enter the brain but lodged in the

sinuses on the right side of the nose. The other gunshot went through the left side

of the head into the right side of the brain. Dr. Dolinak concluded that Nichole

died from gunshot wounds to the head and that the death was a homicide.

{¶ 19} Detective James Ealey, a firearms examiner with the Cleveland

Police Department, examined the two bullets recovered during the autopsy. Ealey

testified that they had been fired from the same weapon. His written report stated

that the bullets were “consistent with 25 auto type ammunition.”

{¶ 20} The police sought to locate and arrest Maxwell following Nichole’s

death. On December 16, 2005, FBI Special Agent Robert Riddlebarger and other

members of the Cleveland/Cuyahoga County Fugitive/Gang Task Force went to a

Cleveland home to arrest him. After entering the home, they found Maxwell

hiding in a crawl space behind a bed in a second-floor bedroom. As he was being

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handcuffed, Maxwell was asked whether he was armed or whether there were any

weapons nearby. He replied, “I do not have a gun anymore.” A few seconds

later, Maxwell blurted out that he had gotten rid of the gun that he had.

{¶ 21} The defense presented no witnesses during the guilt phase of the

trial.

II. Case History

{¶ 22} Maxwell was indicted on two counts of aggravated murder. Count

One charged him with the aggravated murder of Nichole with prior calculation

and design. Count Two charged him with the aggravated murder of Nichole

while committing kidnapping and/or aggravated burglary. Both counts contained

death-penalty specifications for a course of conduct involving multiple murders or

attempted murders, R.C. 2929.04(A)(5), murder while committing kidnapping or

aggravated burglary, R.C. 2929.04(A)(7), murder in retaliation for testimony in a

criminal proceeding, R.C. 2929.04(A)(8), and murder to escape accounting for a

crime, R.C. 2929.04(A)(3).

{¶ 23} Maxwell was also charged with six additional counts: Count

Three—kidnapping, Counts Four and Five—aggravated burglary, Count Six—the

attempted murder of Lauretta Kenney, Count Seven—retaliation against Nichole

because she filed criminal charges against him, and Count Eight—having a

weapon while under disability. Counts One through Seven each contained a

firearm specification.

{¶ 24} Maxwell pled not guilty to all charges and specifications. The

matter proceeded to a jury trial on the first seven counts, while Maxwell waived a

jury trial on Count Eight. At the close of the state’s case, defense counsel filed a

Crim.R. 29 motion to dismiss the charges. The trial court granted the motion to

dismiss Counts Two through Five and the felony-murder death-penalty

specification but denied the motion to dismiss the other charges. The jury found

Maxwell guilty of Counts One and Seven, the retaliation and murder-to-escape-

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accounting specifications, and two firearm specifications. He was found not

guilty of Count Six and the course-of-conduct specification. Separately, the trial

court found Maxwell guilty of having a weapon while under a disability.

{¶ 25} Prior to sentencing, the R.C. 2929.04(A)(3) specification was

merged into the R.C. 2929.04(A)(8) specification. Following the presentation of

evidence in the penalty phase of the trial, the jury recommended that Maxwell be

sentenced to death. The trial court accepted the jury’s recommendation, and

Maxwell was sentenced to death on Count One. He was also sentenced to five

years in prison for the independent count of retaliation, three years on the firearm

specification, and five years for having a weapon under a disability.

III. Issues on Appeal

{¶ 26} The principal issues for review include the adequacy of trial

counsel’s preparation and presentation of mitigating evidence, the trial court’s

failure to appoint a neurologist, the admissibility of Maxwell’s statements to

police at the time of his arrest, and the admissibility of the medical examiner’s

testimony and the autopsy report under Crawford v. Washington, 541 U.S. 36,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

{¶ 27} In this appeal, Maxwell raises 19 propositions of law. We will

address the issues in the approximate order that they arose during the trial;

however, we will first discuss proposition of law XV, which deals with the

admissibility of the medical examiner’s testimony and the autopsy report, as those

issues present novel questions of law.

Proposition of Law XV

{¶ 28} In proposition of law XV, Maxwell argues that the trial court erred

by admitting the autopsy report on Nichole McCorkle and by allowing Dr. Felo,

who did not conduct the autopsy, to testify about the autopsy results in violation

of his Sixth Amendment right to confrontation and Crawford.

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{¶ 29} Dr. David Dolinak conducted Nichole’s autopsy on November 28,

2005. The prosecution called Dr. Joseph Felo to testify about the autopsy instead

of Dr. Dolinak, who at the time of trial had become the medical examiner for

Austin, Texas. Maxwell objected to Dr. Felo’s testimony, citing Crawford and

the best-evidence rule. The trial court cited State v. Craig, 110 Ohio St.3d 306,

2006-Ohio-4571, 853 N.E.2d 621, and allowed Dr. Felo to substitute as a witness.

Dr. Dolinak’s autopsy report was also admitted into evidence over defense

objection.

{¶ 30} Dr. Felo testified that he had reviewed the autopsy report and the

autopsy photographs and x-rays of the victim and looked at tissue slides under the

microscope. He discussed the external examination of Nichole that was

conducted during the autopsy. He testified that there were two gunshot wounds to

the head and a bruise in the midportion of the chest. He referred to the autopsy

report in stating that this injury “was interpreted to be because of medical therapy,

CPR, doing chest compressions.” He testified that the internal examination of the

skull revealed a tear going through the right eyeball and into the brain. There was

also some bleeding and bruising caused by bullets going through the brain.

{¶ 31} Dr. Felo referred directly to the autopsy report in discussing the

victim’s wounds. He testified, “Gunshot wound number one is described as being

in the right eyebrow” (emphasis added), and he referred to the autopsy report in

describing the trajectory of the gunshot. He also testified that the bullet from the

other gunshot traveled “through the scalp and through the brain and skull from the

left side going towards her right side.” He used autopsy photographs to illustrate

this testimony.

{¶ 32} Dr. Felo testified that microscopic examination showed the tears

and bleeding caused by the bullets going through the brain, that microscopic

evaluation of swabs taken from the victim’s mouth, vagina, and rectum revealed

no evidence of sperm, and that stippling was found around both entrance wounds.

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He expressed his opinion that stippling is generally found when “it’s within 18

inches of the end of the muzzle to the target.”

{¶ 33} Although Dr. Felo testified that the Cuyahoga County coroner had

established the cause and manner of death, he also provided his own opinion,

stating, “The cause of Nichole Anna Maria McCorkle’s death is gunshot wounds

of [the] head * * *. The manner of death is a homicide.”

DISCUSSION

{¶ 34} The Sixth Amendment’s Confrontation Clause provides, “In all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted

with the witnesses against him * * *.” The United States Supreme Court has

interpreted this to mean that admission of an out-of-court statement of a witness

who does not appear at trial is prohibited by the Confrontation Clause if the

statement is testimonial unless the witness is unavailable and the defendant has

had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. 36, 53-

54, 124 S.Ct. 1354, 158 L.Ed.2d 177.

{¶ 35} Crawford did not define the word “testimonial” but stated generally

that the core class of statements implicated by the Confrontation Clause includes

statements “ ‘made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial.’ ” Id. at 52, quoting the amicus brief of the National Association of

Criminal Defense Lawyers. The Crawford opinion announced a “fundamentally

new interpretation of the confrontation right.” Williams v. Illinois, ___ U.S. __,

132 S.Ct. 2221, 2232, 183 L.Ed.2d 89 (2012).

{¶ 36} We have already considered the distinction between testimonial

and nontestimonial statements. In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-

4571, 853 N.E.2d 621, ¶ 88, we held that an autopsy report completed by a

nontestifying medical examiner was admissible as a nontestimonial business

record under Evid.R. 803(6). We held that there was no Sixth Amendment

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violation in admitting the autopsy report because Crawford had indicated that

“business records are, ‘by their nature,’ not testimonial” and were therefore

admissible. Id. at ¶ 81, quoting Crawford, 541 U.S. at 56. We stated, “An

autopsy report, prepared by a medical examiner and documenting objective

findings, is the ‘quintessential business record.’ ” Id. at ¶ 82, quoting Rollins v.

State, 161 Md.App. 34, 81, 866 A.2d 926 (2005).

{¶ 37} After our decision in Craig, the United States Supreme Court

decided that analysts who had performed laboratory tests were required to testify.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314

(2009). While the dissent states that the reasoning in Craig has been undone by

Melendez-Diaz, we do not agree. In Melendez-Diaz, the court held that three

notarized certificates of analysis showing that a forensic analysis identified

cocaine were inadmissible. Being “quite plainly affidavits,” they constituted

testimonial statements because they were “functionally identical to live, in-court

testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at

310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165

L.Ed.2d 224 (2006). The affidavits were also “ ‘ “made under circumstances

which would lead an objective witness reasonably to believe that the statement[s]

would be available for use at a later trial.” ’ ” Id. at 311, quoting Crawford, 541

U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, quoting the amicus brief of the

National Association of Criminal Defense Lawyers. Thus, the analysts who had

provided the affidavits were witnesses for Confrontation Clause purposes, and the

defendant had the right to confront them. Id. at 311.

{¶ 38} Shortly afterwards, we considered how foundational testimony is to

be presented for DNA analysis. State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-

6840, 879 N.E.2d 745. In Crager, a DNA expert from the Bureau of Criminal

Identification and Investigation (“BCI”) had testified about a DNA analysis

performed by another agent. Id. at ¶ 8. We held that the DNA report was a

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nontestimonial business record and that its introduction without the testimony of

the BCI agent who prepared it did not violate Crawford. Id. at ¶ 78-79. Relying

upon our earlier opinion, we stated, “The autopsy report at issue in Craig is not

distinguishable from the DNA reports in this case.” Id. at ¶ 51. “As in Craig, the

scientific-test reports in this case were prepared in the ordinary course of regularly

conducted business and so were not testimonial.” Id. at ¶ 54. The United States

Supreme Court vacated the judgment in Crager and remanded the case for further

consideration in light of Melendez-Diaz. Crager v. Ohio, 557 U.S 930, 129 S.Ct.

2856, 174 L.Ed.2d 598 (2009). Thereafter, without deciding whether Crager’s

right to confront witnesses had been denied, we “vacat[ed] the judgment of the

trial court and remand[ed] the cause to the trial court for a new trial consistent

with Melendez-Diaz v. Massachusetts.” State v. Crager, 123 Ohio St.3d 1210,

2009-Ohio-4760, 914 N.E.2d 1055, ¶ 3.

{¶ 39} Next, the Supreme Court decided Bullcoming v. New Mexico, 564

U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, instead of

calling the analyst who signed and certified the forensic report for blood-alcohol

concentration in a DWI case, the prosecution introduced the lab report through the

testimony of another analyst who had not performed or observed the analysis but

was familiar with the testing procedures of the laboratory. Although the witness

was a “knowledgeable representative of the laboratory” who could “explain the

lab’s processes and the details of the report,” id. at 2723 (Kennedy, J, dissenting),

the majority held that the surrogate witness was not a proper substitute for the

analyst who had conducted the test. The court concluded, “The accused’s right is

to be confronted with the analyst who made the certification * * *.” Id. at 2710.

{¶ 40} Bullcoming also held that the blood-alcohol analysis reports were

testimonial. The court stated, “In all material respects, the laboratory report in

this case resembles those in Melendez-Diaz. Here, as in Melendez-Diaz, a law-

enforcement officer provided seized evidence to a state laboratory required by law

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to assist in police investigations. * * * Like the analysts in Melendez-Diaz, [the

certifying analyst] tested the evidence and prepared a certificate concerning the

result of his analysis.” Id. at 2717. Thus, while the Crawford court declined to

define “testimonial,” later decisions seem to explain the meaning of the word by

stating that testimonial statements are those made for “a primary purpose of

creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, ___

U.S. __, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011); see also Bullcoming at

2714, fn. 6, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224

(“To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of

‘establish[ing] or prov[ing] past events potentially relevant to later criminal

prosecution’ ”). If a statement’s primary purpose is anything else, the statement is

nontestimonial. Its admissibility is “the concern of state and federal rules of

evidence, not the Confrontation Clause.” Id.

{¶ 41} Most recently, five justices held that expert testimony from a

forensic specialist did not violate a defendant’s right to confrontation. Williams v.

Illinois, __ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The expert witness

testified that a DNA profile produced by an outside laboratory (Cellmark) from a

rape victim’s vaginal swabs matched the defendant’s DNA profile produced by a

state police lab from the defendant’s blood sample. Id. at 2229-2230. The

Cellmark report itself was neither admitted into evidence nor shown to the fact-

finder. The expert witness also did not quote or read from the report or identify

the report as the source of any of her opinions. Id. at 2230.

{¶ 42} Four of the five justices reasoned that the statements in the

Cellmark report were nontestimonial because, first, the out-of-court statements

were related by the expert solely for the purpose of explaining the assumptions on

which the expert’s opinion relied and were not offered for their truth. Id. at 2240-

2241. And second, even if the Cellmark report had been admitted into evidence, it

was not a testimonial document, because it was not prepared for “the primary

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purpose of accusing a targeted individual,” which distinguished this report from

the forensic reports in Melendez-Diaz and Bullcoming. Id. at 2242. Justice

Thomas agreed that the expert’s testimony did not violate the Confrontation

Clause, but only because the Cellmark report “lacked the requisite ‘formality and

solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation

Clause.” Id. at 2255 (Thomas, J., concurring in judgment), quoting Michigan v.

Bryant at 1167 (Thomas, J., concurring in judgment).

{¶ 43} The admission of the autopsy report and Dr. Felo’s testimony must

now be considered in light of the foregoing cases.

Maxwell’s arguments

{¶ 44} Maxwell argues that Bullcoming prohibited Dr. Felo’s surrogate

testimony about Nichole’s autopsy even though he was a “knowledgeable

representative” who could explain the lab’s processes and the details of the

autopsy report. Maxwell emphasizes that Dr. Felo’s testimony was introduced to

prove a key fact at trial and was offered for the truth of the hearsay. Thus,

Maxwell argues that he was entitled to confront and cross-examine the medical

examiner who actually performed Nichole’s autopsy and wrote the report.

{¶ 45} Maxwell argues that Williams, a decision resulting from a bench

trial, should be distinguished from his case, which was tried before a jury without

any limiting instructions regarding the purpose for which the report could be

considered. He emphasizes that the Williams plurality indicated that the DNA

testimony might not have been admissible if that defendant had elected to have a

jury trial.

{¶ 46} Maxwell also argues that unlike the purpose in Williams, the

primary purpose of the autopsy and the related report was to establish that

Nichole’s death resulted from a crime rather than an accident, suicide, or other

means. Thus, Maxwell argues that Dr. Felo’s testimony and the introduction of

the autopsy report resulted in a Confrontation Clause violation because the

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purpose was “ ‘ “to establish or prove past events potentially relevant to later

criminal prosecutions,” ’ ” quoting Williams, 132 S.Ct. at 2251, 183 L.Ed.2d 89

(Breyer, J., concurring), quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165

L.Ed.2d 224.

The state’s arguments.

{¶ 47} The state advances three main arguments for the admissibility of

the autopsy report and the deputy coroner’s testimony. First, the state argues that

this court should continue to apply Craig, 110 Ohio St.3d 306, 2006-Ohio-4571,

853 N.E.2d 621, ¶ 88, in which we held that an autopsy report completed by a

nontestifying medical examiner was admissible as a nontestimonial business

record under Evid.R. 803(6). Second, the state argues that the coroner has a duty

to conduct autopsies and maintain reports and that this duty exists entirely

independent of any potential criminal prosecution that might later occur. The

state also asserts that autopsy reports are not created for the purpose of litigation,

because they do not identify suspects and are not accusatory in nature. Third, the

state also points out that the passage of time can easily lead to the unavailability

of the medical examiner who conducted an autopsy and that requiring the medical

examiner who conducted the autopsy to testify would be equivalent to placing a

statute of limitations on murder prosecutions.

{¶ 48} Finally, even if admission of the autopsy report and Dr. Felo’s

testimony violated Maxwell’s right to confrontation, the state argues that the error

was harmless beyond a reasonable doubt.

Analysis

{¶ 49} A key element in evaluating the admissibility of the coroner’s

testimony and the autopsy report in light of the recent United States Supreme

Court cases is the primary-purpose test, which examines the reasons for and

purpose of the record in question. To determine the primary purpose, a court

must “objectively evaluat[e] the statements and actions of the parties to the

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encounter” giving rise to the statements. Bryant, 131 S.Ct. at 1162, 179 L.Ed.2d

93; see also Williams, 132 S.Ct. at 2243, 183 L.Ed.2d 89 (plurality opinion of

Alito, J.).

Coroner’s testimony

{¶ 50} Although Maxwell relies on Bullcoming, which disallowed

surrogate testimony and held that the blood-alcohol reports admitted during the

surrogate’s testimony were testimonial, the majority of jurisdictions that have

examined this issue have concluded that a substitute examiner, on direct

examination, may at least testify as to his or her own expert opinions and

conclusions regarding the autopsy and the victim’s death. E.g., Commonwealth v.

Avila, 454 Mass. 744, 762, 912 N.E.2d 1014 (2009) (“the expert witness’s

testimony must be confined to his or her own opinions and, as to these, the expert

is available for cross-examination”); Commonwealth v. Phim, 462 Mass. 470,

479, 969 N.E.2d 663 (2012) (a substitute medical examiner may not testify on

direct examination as to facts and conclusions stated in an autopsy report without

personal knowledge or having independently reached the same conclusion); State

v. Joseph, 230 Ariz. 296, 298, 283 P.3d 27 (2012) (as long as the substitute expert

reaches his or her own conclusions, the Confrontation Clause is satisfied).

{¶ 51} The Supreme Court of California, however, expanded the scope of

admissible opinion testimony by a substitute examiner. The court allowed the

substitute medical examiner to testify regarding his “independent opinion” as an

expert witness as to the cause of the victim’s death, when that opinion was based

solely on a review of the autopsy report. People v. Dungo, 55 Cal.4th 608, 618,

147 Cal.Rptr.3d 527, 286 P.3d 442 (2012). Because the expert witness did not

describe the conclusions reached by the nontestifying examiner, and the expert’s

descriptions were limited to objective facts, such as the condition of the victim’s

body at the time of the autopsy, these types of statements were not testimonial in

nature. Id. at 619.

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{¶ 52} We agree. Maxwell’s argument is also not persuasive because the

Williams plurality stated that the forensic report (the Cellmark report) could have

been admitted into evidence without violating the Confrontation Clause.

Williams, 132 S.Ct. at 2242, 183 L.Ed.2d 89.

{¶ 53} Dr. Felo testified that he reached his own independent judgment on

the cause and manner of Nichole’s death based upon his analysis of the evidence

in the autopsy report, which itself was admitted. His conclusions were the same

as those in the report. But after reviewing the forensic evidence, Dr. Felo also

provided some opinions that were not included in the autopsy report. For

example, he provided his own conclusions about muzzle-to-target distance based

on stippling around the entrance wounds on Nichole’s head. Such testimony

constituted Dr. Felo’s original observations and opinions and did not violate the

Confrontation Clause, because he was available for cross-examination regarding

them.

Autopsy report

{¶ 54} In 2006, this court concluded that an autopsy report was a

nontestimonial business record and that its admission did not impinge on a

defendant’s confrontation rights. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571,

853 N.E.2d 621, ¶ 81-88 (applying Crawford v. Washington). Although the

United States Supreme Court has decided several confrontation cases since our

decision, they do not require departure from our holding in Craig.

{¶ 55} Maxwell invokes the primary-purpose test that the Williams

plurality discussed. The Williams plurality stated that the Cellmark report could

have been admitted into evidence because it “was not prepared for the primary

purpose of accusing a targeted individual” of engaging in criminal conduct.

(Emphasis added.) Williams, 132 S.Ct. at 2243, 183 L.Ed.2d 89. In contrast,

Maxwell argues that the primary purpose of the autopsy and the related report was

to establish that Nichole’s death was a crime. However, Maxwell fails to mention

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that five justices in Williams rejected the plurality’s narrowed definition of the

primary-purpose test (the targeted-individual test). Id. at 2273 (Kagan, J.,

dissenting). Thus, Maxwell’s reliance on the plurality’s narrowed definition of

the primary-purpose test is not helpful to our resolution of this issue.

{¶ 56} Meanwhile, the state urges us to continue to adhere to Craig’s

holding that an autopsy report is admissible as a nontestimonial business record.

But an otherwise inadmissible testimonial statement may not be admitted into

evidence based upon the business-and-official-records hearsay exception.

Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527, 174 L.Ed.2d 314. Although

documents kept in the regular course of business are ordinarily admitted into

evidence under the hearsay exception, they are inadmissible “if the regularly

conducted business activity is the production of evidence for use at trial.” Id. at

321. When a statement is “ ‘made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for

use at a later trial,’ ” it is considered testimonial. Id. at 311, quoting Crawford,

541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. Thus, labeling autopsy reports

as “business records” does not end the inquiry.

{¶ 57} An analysis of the primary-purpose test bears out Craig’s

conclusion that autopsy reports are nontestimonial. Autopsy reports are not

intended to serve as an “out-of-court substitute for trial testimony.” Bryant, 131

S.Ct. at 1155, 179 L.Ed.2d 93. Instead, they are created “for the primary purpose

of documenting cause of death for public records and public health.” Carolyn

Zabrycki, Comment, Toward a Definition of “Testimonial”: How Autopsy

Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal.L.Rev.

1093, 1130 (2008); see also People v. Leach, 2012 IL 111534, 366 Ill.Dec. 477,

980 N.E.2d 570, ¶ 129 (a medical examiner is “charged with protecting the public

health by determining the cause of a sudden death”).

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Ohio statutes

{¶ 58} Ohio coroners conduct autopsies pursuant to the authority granted

to them by R.C. Chapter 313. Coroners must “keep a complete record of and

* * * fill in the cause of death on the death certificate, in all cases coming under

[their] jurisdiction.” R.C. 313.09. The death certificate also must indicate the

“manner and mode in which the death occurred.” R.C. 313.19. If the cause and

manner of death are not apparent—as when someone “dies as a result of criminal

or other violent means, by casualty, by suicide, or in any suspicious or unusual

manner” or “when any person * * * dies suddenly when in apparent good health,”

R.C. 313.12—the coroner is notified so that an autopsy may be conducted. An

autopsy is a “compelling public necessity” if it is needed to “protect[] against an

immediate and substantial threat to the public health” or to assist law enforcement

in conducting a murder investigation. R.C. 313.131.

{¶ 59} Although autopsy reports are sometimes relevant in criminal

prosecutions, Craig rightly held that they are not created primarily for a

prosecutorial purpose. Consistent with Craig, other courts have held that

coroners are statutorily empowered to investigate unnatural deaths and authorized

to perform autopsies in a number of situations, only one of which is when a death

is potentially a homicide. People v. Leach, 405 Ill.App.3d 297, 308-309, 345

Ill.Dec. 694, 939 N.E.2d 537 (2010), aff’d, 2012 IL 111534, 366 Ill.Dec. 477, 980

N.E.2d 570; Dungo, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442

(testimony by a chief medical examiner who did not prepare the decedent’s

autopsy report was admissible); United States v. James, 712 F.3d 79, 97 (2d

Cir.2013) (autopsy report was to be considered on whether it was “prepared with

the primary purpose of creating a record for use at a later trial” ).

{¶ 60} Ohio courts of appeals have also continued to uphold the

admissibility of autopsy reports prepared by nontestifying medical examiners

since Melendez-Diaz. State v. Hardin, 193 Ohio App.3d 666, 2010-Ohio-6304,

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953 N.E.2d 847, ¶ 9-20 (4th Dist.) (autopsy report prepared by nontestifying

medical examiner admissible as a nontestimonial business record, since it was not

prepared for purposes of litigation); State v. Zimmerman, 8th Dist. Cuyahoga No.

96210, 2011-Ohio-6156, ¶ 43-45 (admissibility of autopsy report prepared by

nontestifying medical examiner does not conflict with Bullcoming); State v.

Adams, 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, ¶ 20, 26 (Craig

still controls and autopsy report is nontestimonial evidence under Crawford, as it

is not made solely at the behest of police in order to convict the particular

defendant); State v. Monroe, 8th Dist. Cuyahoga No. 94768, 2011-Ohio-3045

(Craig not in conflict with Melendez-Diaz).

{¶ 61} As a final matter, the admissibility of autopsy reports completed by

a nontestifying medical examiner presents unique policy interests that are not

present in other Crawford-related evidentiary matters. A medical examiner who

conducted an autopsy may be unavailable or deceased when a trial begins. And

unlike other forensic tests, a second autopsy may not be possible due to cremation

of the victim’s body or other loss of evidence with passage of time.

{¶ 62} Under R.C. 313.09, coroners are required to “keep a complete

record of and * * * fill in the cause of death on the death certificate, in all cases

coming under [their] jurisdiction.” Moreover, the scope of an examiner’s duty is

the same regardless of whether criminal activity is suspected or not. The Illinois

Supreme Court has recognized that in some instances, police may compel the

conducting of an autopsy during investigation of a cold case for later use at trial,

and in that event the autopsy may play a testimonial role. People v. Leach, 2012

IL 111534, 366 Ill.Dec. 477, 980 N.E.2d 570, ¶ 133. The dissent rejects the

primary-purpose test and would hold that whether a particular autopsy report is

testimonial should be determined on a case-by-case basis. But generally, autopsy

reports are neither (1) prepared for the primary purpose of accusing a targeted

individual nor (2) prepared for the primary purpose of providing evidence in a

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criminal trial. For Sixth Amendment purposes, it is only the primary purpose of a

document that determines whether it is testimonial or not.

{¶ 63} Melendez-Diaz and Bullcoming, on which Maxwell relies, are

readily distinguishable here. In both cases, the forensic reports were made at the

request of police, for specific “evidentiary purposes” in order to aid in a police

investigation. The record does not show that to be the case here. We hold that an

autopsy report that is neither prepared for the primary purpose of accusing a

targeted individual nor prepared for the primary purpose of providing evidence in

a criminal trial is nontestimonial, and its admission into evidence at trial under

Evid.R. 803(6) as a business record does not violate a defendant’s Sixth

Amendment confrontation rights.

{¶ 64} Finally, the state argues that any error in admitting Dr. Felo’s

testimony and the autopsy report constitutes harmless error beyond a reasonable

doubt, an issue we must determine. See Chapman v. California, 386 U.S. 18, 24,

87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Even if there was error in admitting the

coroner’s testimony and the autopsy report, as discussed later in proposition XIII,

overwhelming evidence was introduced that established Maxwell’s guilt, and

expert testimony was not crucial in proving the cause and manner of Nichole’s

death. Eyewitness testimony established that Maxwell shot Nichole in the head,

and two .25-caliber shell casings were found inside the house after Maxwell fled

the scene. Maxwell also admitted to Gregg that he shot Nichole twice. Finally,

Michelle Kenney testified that Nichole died a short time after arriving at the

hospital.

{¶ 65} We will now address the remaining issues in the approximate order

that they arose during the trial proceedings.

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A. Pretrial and trial issues

1. Amendment of the indictment (Proposition of law II)

{¶ 66} Maxwell argues that the trial court erred by allowing the prosecutor

to amend the indictment without engaging in a colloquy with the defendant to

ensure that he knowingly, intelligently, and voluntarily waived his right to a grand

jury.

{¶ 67} At the beginning of trial, the prosecutor sought to amend pursuant

to Crim.R. 7(D) the specification that accompanied Counts One and Two that the

murder occurred to escape the accounting for a crime. The specification stated,

“The offender committed the offense presented above for the purpose of escaping

punishment for another offense committed by him, to-wit: Rape.” The prosecutor

stated that there was a typographical error and that the specification should state

“felonious assault” instead of “rape.”

{¶ 68} The defense did not object to amending the specifications. Defense

counsel stated, “The prosecutor raised this issue with me * * * several pretrials

ago. I had an opportunity to speak to Mr. Maxwell with regards to this. I

explained to him certainly we have no objection to this, and he agrees with me in

terms of that, and certainly the county prosecutor can, of course, take this back to

the Grand Jury to correct the typographical error, if he wishes to do so.” The

prosecutor was then allowed to amend the specification. Because Maxwell failed

to object to the amendment, he has waived all but plain error. See State v.

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6.

{¶ 69} Under Crim.R. 7(D), a court may amend an indictment “at any

time” if the amendment does not change “the name or identity of the crime

charged.” An amendment that changes the penalty or degree of the charged

offense changes the identity of the offense and is not permitted by Crim.R. 7(D).

State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus.

However, “[a]s long as the state complies with Crim.R. 7(D), it may cure a

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defective indictment by amendment, even if the original indictment omits an

essential element of the offense with which the defendant is charged.” State v.

Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15.

{¶ 70} The amendment to the R.C. 2929.04(A)(3) specification changed

the underlying offense from rape to felonious assault. This amendment changed

the elements of the specification, because proof of the defendant’s commission of

the prior offense constituted an essential element of the R.C. 2929.04(A)(3)

specification. See State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163

(2001). But the name of the crime of aggravated murder was not changed;

Maxwell was still charged with an R.C. 2929.04(A)(3) death-penalty

specification. The amended specification also did not change the penalty or

degree of the offense charged. Thus, the trial court committed no plain error in

granting the state’s motion to amend the indictment.

{¶ 71} Nevertheless, Maxwell argues that the trial court did not comply

with Crim.R. 7(A), because he did not properly waive his right to have the grand

jury amend the indictment. Yet Maxwell was prosecuted by indictment and was

sufficiently informed of the charges in the indictment. Therefore, Crim.R. 7(A)

and its waiver requirements do not apply to this case. See Rohrbaugh, 126 Ohio

St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, at ¶ 11.

{¶ 72} Maxwell invokes State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-

1624, 885 N.E.2d 917, overruled by State v. Horner, 126 Ohio St.3d 466, 2010-

Ohio-3830, 935 N.E.2d 26, ¶ 45, in arguing that he had the right to have the grand

jury hear and consider the essential facts underlying the amendment of the

specification. In Colon, this court held that the omission of a mens rea allegation

in the indictment was a structural defect that rendered the conviction improper.

Id. at ¶ 19. Maxwell fails to explain how this holding applies to this case.

Moreover, after Maxwell raised the issue in his first brief, this court overruled

Colon in Horner. Thus, we reject this argument.

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{¶ 73} Finally, even if the amended indictment were defective, it made no

difference to the case outcome because the trial court merged the R.C.

2929.04(A)(3) specification with the murder-in-retaliation specification in R.C.

2929.04(A)(8) before the jury considered its penalty-phase verdict. We overrule

proposition II.

2. Ineffective assistance of counsel (Proposition of law IV)

{¶ 74} Maxwell argues that his counsel provided ineffective assistance

during jury selection and by failing to object to victim-impact evidence during the

guilt phase of the trial.

{¶ 75} Reversal of a conviction for ineffective assistance requires that the

defendant show, first, that counsel’s performance was deficient and, second, that

the deficient performance prejudiced the defense so as to deprive the defendant of

a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraph two of the syllabus.

{¶ 76} Maxwell first argues that trial counsel’s performance must be

judged by the standards set forth in the American Bar Association (“ABA”)

Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases (Rev.Ed.2003). The stated objective of the guidelines is “to set

forth a national standard of practice for the defense of capital cases in order to

ensure high quality legal representation for all persons facing the possible

imposition or execution of a death sentence by any jurisdiction.” Guideline

1.1(A). To this end, the ABA guidelines present a detailed prescription for the

legal representation of capital defendants.

{¶ 77} However, the Supreme Court has held that the ABA guidelines are

“only guides” to what reasonableness means, not its definition. Strickland at 688.

In Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), the

Supreme Court reversed a Sixth Circuit Court of Appeals decision that relied on

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the ABA guidelines to grant a capital defendant relief on the ground that his

lawyers performed deficiently in investigating and presenting mitigating

evidence. The Supreme Court criticized the Sixth Circuit for treating the

guidelines “not merely as evidence of what reasonably diligent attorneys would

do, but as inexorable commands with which all capital defense counsel ‘ “must

fully comply.” ’ ” Id. at 8, quoting Van Hook v. Anderson, 560 F.3d 523, 526 (6th

Cir.2009), quoting Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006). The

Supreme Court continued, “ ‘[W]hile States are free to impose whatever specific

rules they see fit to ensure that criminal defendants are well represented, we have

held that the Federal Constitution imposes one general requirement: that counsel

make objectively reasonable choices.’ ” Id. at 9, quoting Roe v. Flores-Ortega,

528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

{¶ 78} Accordingly, trial counsel’s performance is reviewed under the

two-prong Strickland analysis. See also State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶ 37-40. We now address Maxwell’s specific

assertions of ineffective assistance of counsel.

a. Improper use of peremptory challenges

{¶ 79} Maxwell argues that his counsel were ineffective by improperly

using peremptory challenges to eliminate women from the jury, in violation of

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89

(1994).

{¶ 80} In Batson, the United States Supreme Court held that the Equal

Protection Clause of the United States Constitution precludes purposeful

discrimination by the state in the exercise of its peremptory challenges so as to

exclude members of minority groups from service on petit juries. Id. at 89. A

court adjudicates a Batson claim in three steps. State v. Were, 118 Ohio St.3d

448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. First the opponent of the

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peremptory challenge must make a prima facie case of racial discrimination.

Second, if the trial court finds this requirement fulfilled, the proponent of the

challenge must provide a racially neutral explanation for the challenge. Batson at

96-98. Finally, the trial court must decide based on all the circumstances whether

the opponent has proved purposeful racial discrimination. Id. at 98.

{¶ 81} Batson has since been extended to defense peremptory challenges,

Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), and

gender-based peremptory challenges, J.E.B., 511 U.S. at 144-145.

{¶ 82} Maxwell argues that trial counsel violated the equal-protection

rights of five female prospective jurors by peremptorily challenging them: Juanita

Gibson, Gail Gibson-Gray, Fahtema Stephens, Carol Dardzinski, and Genevieve

Torrero. Gibson, Gibson-Gray, and Stephens were also African-American.

During jury selection, defense counsel peremptorily challenged Gibson and stated

that she was excused “because of the tragedies that have occurred in her family.”

Counsel did not make any comments with respect to his peremptory challenge of

the other four female prospective jurors.

{¶ 83} Maxwell concedes that the voir dire responses of Gibson, Gibson-

Gray, and Stephens provided gender-neutral reasons for trial counsel’s

peremptory challenge. Maxwell notes that Gibson had been a victim of a sex

offense, Gibson-Gray suffered from depression and had been hospitalized for a

mental disease, and Stephens had been a victim of domestic violence. Maxwell

provides no other argument to support his ineffectiveness claim regarding the

peremptory challenge of these three prospective jurors.

{¶ 84} Maxwell’s remaining argument is that trial counsel were

ineffective in peremptorily challenging Dardzinski and Torrero. But the record

includes no discussion of a possible basis for counsel’s challenges of these two

prospective jurors, because no Batson or J.E.B. objection was raised. Thus, from

the record, we cannot determine whether trial counsel had racially neutral or

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gender-neutral explanations for the peremptory challenges and, if so, whether the

trial court could have properly accepted such explanations as credible and not a

pretext for racial or gender discrimination. Moreover, we cannot presume

prejudice from trial counsel’s failure to raise a Batson or J.E.B. challenge. See

State v. Burks, 10th Dist. Franklin No. 07AP-553, 2008-Ohio-2463, ¶ 57 (court

unable to consider defense counsel’s failure to raise a Batson objection on direct

appeal because of an inadequate record).

{¶ 85} Yet Dardzinski’s and Torrero’s responses on the jury

questionnaires appear to provide gender-neutral explanations to support the

defense’s peremptory challenges. In response to the question “What is your

opinion of our Criminal Justice System?” Dardzinski stated, “There are times it

can be fair, but I also feel that if someone is convicted of a crime, sentencing is

not harsh enough.” When asked about her views on the death penalty, Dardzinski

stated, “I firmly believe in capital punishment. If someone can just go and kill

someone I feel their life should be taken also.” When Torrero was asked about

her feelings about the death penalty, she responded simply, “My feelings, if you

can’t do the time don’t commit the crime.” Based on the foregoing, we hold that

Maxwell has failed to establish that trial counsel were deficient by peremptorily

challenging female prospective jurors.

b. Failure to life-qualify prospective jurors

{¶ 86} Maxwell argues that trial counsel were ineffective by failing to

“life-qualify” a single prospective juror pursuant to Morgan v. Illinois, 504 U.S.

719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Morgan held that on voir dire,

upon the defendant’s request, the trial court must inquire into the prospective

juror’s views on capital punishment because a prospective juror who would

always impose the death penalty must not be empaneled. Id. at 729-734. In the

present case, the trial court received assurances from all of the seated and

alternate jurors that they could vote for one of the life sentences if the state failed

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to prove that the aggravating circumstances outweighed the mitigating factors.

Thus, counsel were not deficient by failing to also question the jurors about this

matter.

c. Failure to object to characterization of the verdict as a recommendation

{¶ 87} Maxwell argues that trial counsel were ineffective by failing to

object to the trial court’s instructions indicating that the jury verdict was merely a

recommendation, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct.

2633, 86 L.Ed.2d 231 (1985). But counsel did object to those instructions.

{¶ 88} Moreover, there was no Caldwell violation. In Caldwell, the jury

did not receive an accurate description of its role in the sentencing process due to

the prosecutor’s suggestion that the jury’s decision to impose the death penalty

would not be final, because the appellate court would review the sentence for

correctness. Id. at 328-329. The court concluded that the comment

unconstitutionally “led [the jury] to believe that the responsibility for determining

the appropriateness of the defendant’s death rests elsewhere.” Id. But when a

defendant claims that a Caldwell violation occurred, he or she “must show that the

remarks to the jury improperly described the role assigned to the jury by local

law.” Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435

(1989). No Caldwell violation occurred in the present case, since the trial court’s

instructions accurately stated the law, emphasized the jury’s responsibility to

impose a sentence, and did not induce reliance on the prospect of appellate

review. See State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d

1081, ¶ 102.

d. Failure to object to victim-impact testimony

{¶ 89} Maxwell argues that trial counsel were ineffective by failing to

object to victim-impact testimony that was presented at trial. Maxwell also

challenges the introduction of this evidence in proposition of law X. But as

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discussed in that proposition, trial counsel were not ineffective by failing to object

to this evidence, because its admission was either proper or not prejudicial.

{¶ 90} Based on the foregoing, we reject proposition IV.

3. Jury challenges (Propositions of law V and VI)

{¶ 91} In proposition of law V, Maxwell argues that the trial court had an

obligation to determine sua sponte whether trial counsel had gender-neutral

reasons to peremptorily challenge five female prospective jurors. Maxwell failed

to assert a J.E.B. challenge at trial and thus waived all but plain error. See State v.

Ballew, 76 Ohio St.3d 244, 253, 667 N.E.2d 369 (1996) (failure to raise a Batson

challenge constituted waiver).

{¶ 92} In raising a J.E.B. challenge, “a party alleging gender

discrimination must make a prima facie showing of intentional discrimination

before the party exercising the challenge is required to explain the basis for the

strike.” J.E.B., 511 U.S. at 144-145, 114 S.Ct. 1419, 128 L.Ed.2d 89. Without an

objection from either defense counsel or the prosecutor, the trial court had no

obligation to raise a J.E.B. challenge on its own motion. Moreover, the record

includes no discussion of a possible basis for counsel’s challenges, because a

J.E.B. issue was never raised. In the absence of an adequate record, we find that

no plain error occurred.

{¶ 93} In proposition of law VI, Maxwell argues that the trial court erred

in denying a defense challenge against juror Gibson because she was biased.

Maxwell also argues that he suffered prejudice because he was forced to use a

peremptory challenge against Gibson after the trial court denied the challenge for

cause.

{¶ 94} A trial court has broad discretion in determining a prospective

juror’s ability to be impartial. State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d

772 (1998). Former R.C. 2313.42(J) (now R.C. 2313.17(B)(9)) stated that good

cause exists for the removal of a prospective juror when “he discloses by his

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answers that he cannot be a fair and impartial juror or will not follow the law as

given to him by the court.” A prospective juror who has been challenged for

cause should be excused “if the court has any doubt as to the juror’s being entirely

unbiased.” Former R.C. 2313.43 (now R.C. 2313.17(D)); see State v. Cornwell,

86 Ohio St.3d 560, 563, 715 N.E.2d 1144 (1999). A trial court’s ruling on a

challenge for cause will not be disturbed on appeal absent an abuse of discretion.

Id.

{¶ 95} During voir dire, juror Gibson stated that she had been sexually

assaulted about five years previously and that her assailant had been recently

apprehended. Gibson did not have to testify against the defendant, because there

was a plea bargain and he received a one-year sentence. Gibson stated that she

had met with Carol Skutnik of the Cuyahoga County prosecutor’s office once or

twice before trial. As to her dealings with the prosecutor’s office, Gibson stated,

“They did everything the way they were supposed to I believe. I didn’t have any

issues with them.” As a follow-up question, trial counsel asked Gibson about her

experience with the prosecutor’s office: “Do you think that’s going to somehow

possibly taint the way you view this case against my client?” Gibson responded,

“Why would it? No, I don’t. One has nothing to do with [the] other.”

{¶ 96} Maxwell argues that juror Gibson should have been excused as a

juror because she had been the victim of a sexual assault and her previous

relationship with the prosecutor’s office posed a risk that she would find the

prosecutor’s case against Maxwell more credible. Yet Gibson’s answers showed

that she would be a fair-minded juror. Nothing indicates that Gibson’s

experiences as a sexual-assault victim would cause her to be biased against

Maxwell. Gibson also assured the court that her prior dealings with a different

Cuyahoga County prosecutor would not influence her consideration of Maxwell’s

case. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995)

(prospective juror whose brother was a homicide victim permitted to remain as

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capital juror after assuring the court that she could set that aside and remain

impartial). Thus, we hold that the trial court did not abuse its discretion in

rejecting this challenge for cause. We also reject Maxwell’s contention that the

defense was forced to use a peremptory challenge against Gibson.

{¶ 97} Based on the foregoing, we overrule propositions V and VI.

4. Competency of child witness (Proposition of law III)

{¶ 98} Maxwell argues that the trial court erred in finding that C.M. was

competent to testify at trial. He argues that the record fails to establish that C.M.

was able to distinguish right from wrong and understand the difference between

the truth and a lie.

{¶ 99} Evid.R 601 provides: “Every person is competent to be a witness

except: (A) * * * children under ten years of age, who appear incapable of

receiving just impressions of the facts and transactions respecting which they are

examined, or of relating them truly.”

{¶ 100} A trial court must conduct a voir dire examination of a child under

ten years of age to determine the child’s competence to testify. In making this

determination, the court must consider

(1) the child’s ability to receive accurate impressions of fact or to

observe acts about which he or she will testify, (2) the child’s

ability to recollect those impressions or observations, (3) the

child’s ability to communicate what was observed, (4) the child’s

understanding of truth and falsity and (5) the child’s appreciation

of his or her responsibility to be truthful.

State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). A

determination of competency is within the sound discretion of the trial court and

will not be reversed on appeal absent a clear abuse of discretion. Id. at 250-251.

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{¶ 101} C.M. was five years old when she testified. She was one day

short of her fourth birthday when she witnessed her mother being killed. During

the voir dire examination to determine her competency, C.M. stated the name of

her brother and sister and mentioned that she attended preschool and knew her

teacher’s name. She stated that her favorite TV show was “Sponge Bob” and

named the characters on the show and mentioned their characteristics. C.M. also

identified photographs of the different rooms in her house. C.M. showed that she

knew what it meant to tell the truth and stated, “You will get in trouble” if you tell

a lie. Finally, C.M. related what happened the night her mother was killed. C.M.

stated that her “daddy” came to the house with a gun, that he was in her “Mommy

room,” and that the three of them went downstairs. Asked what Maxwell did with

the gun, she stated, “He shoot my mommy.”

{¶ 102} Following voir dire, the trial court stated, “[C.M.] is capable of

receiving just impressions, she understands the importance of telling the truth,

and, therefore, the Court rules that she will be allowed to testify. She’s competent

as a witness in this case.”

{¶ 103} Maxwell argues that the trial court abused its discretion because

nothing shows that C.M. understood the significance of upholding the oath or the

consequences of lying under oath. However, trial counsel objected to C.M.’s

competency on the grounds that she was unable to adequately recall “material

facts and impressions,” rather than her lack of understanding the significance of

an oath. Evid.R. 103(A) requires that an objection state the specific grounds upon

which it based. Thus, Maxwell’s objection to C.M.’s competency on different

grounds than he now complains about constitutes waiver absent a showing of

plain error. See State v. Wade, 53 Ohio St.2d 182, 188, 373 N.E.2d 1244 (1978).

{¶ 104} C.M. was not asked whether she understood the significance of

taking an oath or lying under oath. But a child “need not have religious beliefs or

detailed knowledge of the nature of the oath.” State v. Eastham, 39 Ohio St.3d

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307, 313, 530 N.E.2d 409 (1988) (Brown, J., concurring). Rather, “it must be

shown that the child understands the duty to tell the truth and that some

punishment will follow if the child fails to tell the truth.” Id. C.M. demonstrated

that she understood the concept of truthfulness and knew that there were

consequences for not telling the truth during voir dire:

Q. And, [C.M.], do you know the difference between

telling the truth and telling a lie?

A. Yes.

Q. And what’s the difference?

A. The difference, when you don’t tell the truth—

Q. Uh-huh?

A. —you could get in trouble.

Q. Okay. And if you tell the truth, what happens? Is it

good to tell the truth?

A. Yes.

Q. Okay. What happens if you tell a lie?

A. You will get in trouble.

{¶ 105} Thus, the record supports the trial court’s finding that C.M.

understood the importance of telling the truth in finding that she was competent.

Moreover, we do not find an abuse of discretion simply because C.M. was only

five years old at the time of trial. See State v. Fry, 125 Ohio St.3d 163, 2010-

Ohio-1017, 926 N.E.2d 1239, ¶ 73-87 (child witness who was six years old at trial

and five years old when he witnessed the murder competent to testify); State v.

Allard, 75 Ohio St.3d 482, 496-497, 663 N.E.2d 1277 (1996) (child eyewitness to

two murders who was five years old at trial and four years old when he witnessed

the murders competent to testify).

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{¶ 106} As an alternative argument, Maxwell claims that the trial court

abused its discretion in finding C.M. competent because her testimony showed

she was confused and unable to accurately relate her observations. During cross-

examination, C.M. stated that she sometimes went horseback riding with her

father in the house. Maxwell claims that he went horseback riding with real

horses and not pretend horses and that C.M.’s answers showed her confusion and

possible fantasy.

{¶ 107} Maxwell incorrectly asserts that this testimony was presented

during the competency hearing. Instead, C.M.’s cross-examination about

horseback riding occurred during the state’s case-in-chief. Once C.M. was

deemed competent to testify, her credibility, like that of any other witness, must

be determined by the trier of fact. 1 Giannelli, Evidence, Section 601.6, at 433

(3d Ed.2010). Thus, we reject Maxwell’s claim that this segment of C.M.’s cross-

examination shows that C.M. was incompetent.

{¶ 108} In conclusion, we hold that the trial court committed no plain

error in finding that C.M. was competent to testify. Proposition III is overruled.

5. Miranda compliance (Proposition of law XIII)

{¶ 109} Maxwell argues that the trial court erred in admitting his

statements to police at the time of his arrest, because the police had failed to

advise him of his Miranda rights before questioning him. Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 110} Before trial, Maxwell moved to suppress statements that he made

in response to police questioning about whether he was armed at the time of his

arrest. During the suppression hearing, Agent Robert Riddlebarger testified that

on December 16, 2005, he and six other members of the Cleveland/Cuyahoga

County Fugitive/Gang Task Force went to a home on Jeffries Avenue in

Cleveland to arrest Maxwell. Task-force members entered the house after

knocking on the door and not receiving a response. According to Riddlebarger,

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the task force was “looking for persons, or * * * anything that might be used as a

weapon against us.” The team members searched the basement and the first-floor

area and found nothing. The entire task force then went upstairs to clear the

second floor. The team members separated and searched the two bedrooms on

that floor.

{¶ 111} Team members cleared both bedrooms. In one bedroom, team

members noticed a crawl-space door behind the bed. They moved the bed,

opened the door, and found Maxwell. Riddlebarger and Det. Zickes pulled

Maxwell out of the crawl space, placed him face down on the bed, and handcuffed

him. Riddlebarger testified, “At about the same time as he’s handcuffed, * * *

Detective Zickes asked Mr. Maxwell whether or not he was armed.” Maxwell

responded that “he did not have a gun anymore.” Riddlebarger then patted

Maxwell down for weapons and searched his clothing to make sure that he did not

have any weapons on him. During the pat-down, Maxwell stated that he “had

gotten rid of the gun that he once had.”

{¶ 112} The trial court overruled the defense motion to suppress

Maxwell’s statements. The court stated, “In this case, as in [New York v. Quarles,

467 U.S. 649, 659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)], there was a public

safety exception to the requirement that Miranda warnings be given before a

subject’s answers could be admitted into evidence * * *.” Later, Riddlebarger

testified during the state’s case-in-chief regarding Maxwell’s statements at the

time of his arrest.

{¶ 113} Under Miranda, 384 U.S. at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694,

“the prosecution may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege against self-

incrimination.” However, when officers ask “questions necessary to secure their

own safety or the safety of the public” as opposed to “questions designed solely to

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elicit testimonial evidence from a suspect,” they do not need to provide the

warnings required by Miranda. New York v. Quarles, 467 U.S. 649, 659, 104

S.Ct. 2626, 81 L.Ed.2d 550 (1984).

{¶ 114} In Quarles, the police apprehended a rape suspect in a

supermarket and discovered that he was wearing an empty shoulder holster.

Before reading Miranda rights to the suspect, an officer asked the suspect where

the gun was located. The suspect nodded toward some empty cartons and stated,

“[T]he gun is over there.” Quarles at 652. In upholding the admissibility of the

defendant’s statement, the court stated:

The police in this case * * * were confronted with the

immediate necessity of ascertaining the whereabouts of a gun

which they had every reason to believe the suspect had just

removed from his empty holster and discarded in the supermarket.

So long as the gun was concealed somewhere in the supermarket,

with its actual whereabouts unknown, it obviously posed more than

one danger to the public safety: an accomplice might make use of

it, a customer or employee might later come upon it.

Id. at 657.

{¶ 115} Recognizing a narrow exception to the Miranda rule, Quarles

reasoned that “the need for answers to questions in a situation posing a threat to

the public safety outweighs the need for the prophylactic rule protecting the Fifth

Amendment’s privilege against self-incrimination.” Id. In so holding, the court

stated:

We decline to place officers * * * in the untenable position of

having to consider, often in a matter of seconds, whether it best

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serves society for them to ask the necessary questions without the

Miranda warnings and render whatever probative evidence they

uncover inadmissible, or for them to give the warnings in order to

preserve the admissibility of evidence they might uncover but

possibly damage or destroy their ability to obtain that evidence and

neutralize the volatile situation confronting them.

Id. at 657-658. Quarles indicated that this limited exception will not be difficult

for police officers to apply “because in each case it will be circumscribed by the

exigency which justifies it.” Id. at 658.

{¶ 116} Maxwell argues that Quarles did not justify the police questioning

him about whether he was armed without first advising him of his Miranda rights.

Maxwell argues that he was handcuffed before he was asked about the weapon.

He also argues that the public-safety exception does not apply, because he was

arrested inside a private home that had been completely secured by the police.

{¶ 117} In United States v. Williams, 483 F.3d 425, 428 (6th Cir.2007),

the United States Court of Appeals for the Sixth Circuit set forth the standard that

the government must satisfy in order for custodial statements made before any

Miranda warnings to be admissible under the Quarles public-safety exception.

“For an officer to have a reasonable belief that he is in danger,” and thus for the

exception to apply, “he must have reason to believe (1) that the defendant might

have (or recently have had) a weapon, and (2) that someone other than police

might gain access to that weapon and inflict harm with it.” Id. at 428. Williams

stated that this evaluation of the applicability of the Quarles exception “takes into

consideration a number of factors, which may include the known history and

characteristics of the suspect, the known facts and circumstances of the alleged

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crime, and the facts and circumstances confronted by the officer when he

undertakes the arrest.”1 Id.

{¶ 118} In the present case, the first condition was satisfied because the

members of the task force had a reasonable belief that Maxwell might possess a

weapon. Evidence suggested that he possessed weapons and had recently shot

Nichole. But the second condition was not met. When Maxwell was questioned,

the task force had secured the premises, performed a sweep of the house, and

determined that no one else was present. Maxwell was handcuffed and

surrounded by several task-force members. The house was under full control of

the agents during the questioning. These facts contrast with those of Quarles, in

which a discarded gun in a supermarket presented a threat to public safety.

{¶ 119} Nevertheless, the state argues that Det. Zickes could ask Maxwell

whether or not he was armed because an officer’s safety is always at risk,

especially when the arrest occurs in the defendant’s home. But the Williams test

provides that in applying the Quarles exception, it is necessary to consider the

facts and circumstances confronted by the police at the time of arrest, and here,

nothing suggested that Maxwell might gain access to a weapon and inflict harm

with it.

{¶ 120} In United States v. Kellogg, 306 Fed.Appx. 916 (6th Cir.2009),

the court evaluated a similar fact situation involving the application of the public-

safety exception. In Kellogg, the police asked the defendant, who was suspected

of bank robbery, whether he had a gun or drugs on the premises before searching

his home. Id. at 918. The court rejected claims that the public-safety exception

1. Some Ohio courts of appeals have adopted a four-part test to determine whether the public-

safety exception applies: “ ‘In order to establish that the exception is warranted in any given case,

the State must show that: (1) there was an objectively reasonable need to protect the police or the

public, (2) from an immediate danger, (3) associated with a weapon, and that (4) the questions

asked were related to that danger and reasonably necessary to secure public safety.’ (Emphasis

sic.)” State v. Garnett, 10th Dist. Franklin No. 09AP-1149, 2010-Ohio-5865, ¶ 32, quoting State

v. Jergens, 2d Dist. No. 13294 (Sept. 3, 1993).

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allowed defendant’s incriminating responses to be admitted at trial. The court

stated that the suspicion that the defendant had recently committed a bank robbery

satisfied the first prong of the Williams standard. Id. at 924. However, the court

stated that the second prong of the Williams standard was not met:

[S]ince the arresting officers had just ordered all of the occupants

out of the duplex, handcuffed Kellogg and conducted a security

sweep of the residence, there was no reason to believe that a

weapon would be immediately accessible to individuals other than

police. Thus, the immediate danger to the officers or the public

was insufficient to justify the officers’ failure to inform Kellogg of

his rights prior to eliciting incriminating statements regarding the

items in the duplex.

Id. See also United States v. Brathwaite, 458 F.3d 376, 382 (5th Cir.2006), fn. 8

(rejecting application of the public-safety exception where police secured the

suspect and his coresidents, conducted two security sweeps, and gained control

over the residence).

{¶ 121} Maxwell made two statements after Det. Zickes asked him

whether he was armed. His first statement, that he did not have a gun anymore,

was in direct response to Zickes’s question. His second statement, that “he got rid

of the gun that he once had,” was made while Riddlebarger was patting him

down. Riddlebarger testified that this was an unsolicited response and was not

made in response to further questioning.

{¶ 122} The admissibility of Maxwell’s second statement depends on

whether it was a continuation of his response to police questioning about whether

he was armed. In determining whether one statement is a continuation of the

previous statement, a court should consider factors such as whether the content in

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the statements overlap, the timing and setting of each statement, and the

continuity of personnel. See State v. Clark, 7th Dist. Mahoning No. 08MA15,

2009-Ohio-3328, 2009 WL 1915211, ¶ 24. Maxwell’s second response was made

seconds after his first response, addressed the same matter, and was made to the

same officers in the room. Thus, we conclude that both statements were

improperly obtained in violation of Miranda.

{¶ 123} Because Maxwell’s statements were improperly admitted into

evidence, we must determine whether the error was reversible or harmless. “A

constitutional error can be held harmless if we determine that it was harmless

beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N.E.2d 996, ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967). We hold that the erroneous admission of

Maxwell’s statements was harmless beyond a reasonable doubt in view of the

remaining evidence establishing Maxwell’s guilt.

{¶ 124} Properly admitted evidence provided overwhelming evidence of

Maxwell’s guilt. Gregg testified that Maxwell was very upset after Nichole

testified at the grand jury and that he said, “[T]he bitch is going to make me kill

her.” He also asked Gregg where he could get a gun. Four days later, Maxwell

violated a temporary protection order and went to Nichole’s house with a gun.

Lauretta confronted Maxwell at the house, Maxwell fired shots, and she observed

Maxwell standing over Nichole’s body before he fled the scene. C.M. also

witnessed Maxwell shooting her mother. Moreover, Maxwell called Gregg and

admitted shooting Nichole that night.

{¶ 125} Based on the foregoing, we overrule proposition XIII.

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6. Admissibility of Nichole’s phone conversation with Maxwell (Proposition of

law XIV)

{¶ 126} Maxwell argues that the trial court erred by admitting a segment

of Nichole’s telephone conversation with him, because it was inadmissible

hearsay and violated his Sixth Amendment right to confrontation.

{¶ 127} On November 23, 2005, Nichole testified before the grand jury

about the felonious assault. That evening, Maxwell called Gregg and told him

that he had been trying to talk to Nichole about her grand jury testimony but had

been unable to contact her. Maxwell then phoned Nichole while Gregg remained

on the line, and Gregg heard their conversation. Gregg testified as follows:

Q: And did Mr. Maxwell say anything to Ms. McCorkle?

A: Yes, he did.

Q: What did he say?

A: He asked her what had happened in court that day.

Q: Did she respond?

Mr. Luskin [defense counsel]: Objection.

A: Yes, she did.

The Court: Overruled.

Q: What did she say?

Mr. Rein [defense counsel]: Objection.

The Court: Overruled.

A: She had told him that—she was very sincere when she

said it—but she said I told the truth. I had to tell the truth.

Q: After she tells him that, how long after that—how long

was the conversation all together?

A: A few minutes, not real long. Four or five minutes.

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Q: Was there much conversation after she told him that she

had to tell the truth?

A: No, there was not.

{¶ 128} Maxwell argues that Nichole’s statement that she “told the truth”

was inadmissible hearsay and constituted a testimonial statement that violated the

Confrontation Clause in violation of Crawford 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177. The state argues that Nichole’s statement was not admitted for the

truth of the matter asserted and was not a testimonial statement.

{¶ 129} Out-of-court statements offered to prove the truth of the matter

asserted are generally inadmissible as hearsay. Evid.R. 801 and 802. If a

statement is not offered for the truth of the matter asserted, however, it is not

prohibited by the hearsay rule and will be admissible, subject to the standards

governing relevancy and undue prejudice. Evid.R. 402 and 403; State v. LaMar,

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 59. “It is well established

that extrajudicial statements made by an out-of-court declarant are properly

admissible to explain the actions of a witness to whom the statement was

directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980); see

also 2 Giannelli, Evidence, Section 801.10, at 138 (3d Ed.2010).

{¶ 130} Nichole’s statement that she testified truthfully before the grand

jury was not offered to prove the truth of the matter asserted but to prove the

effect of the statement on the listener, Maxwell. The statement was relevant

because it set into motion the chain of events leading to the confrontation between

Maxwell and Nichole and her shooting a few nights later. Thus, the trial court did

not err in admitting Nichole’s statement.

{¶ 131} We also reject Maxwell’s Crawford claim. In Crawford, the

Supreme Court held that it is a violation of the Confrontation Clause to admit

“testimonial statements of a witness who did not appear at trial unless he was

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unavailable to testify and the defendant had had a prior opportunity for cross-

examination.” Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177.

Crawford also stated that the Confrontation Clause “does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted.” Id. at 59, fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct.

2078, 85 L.Ed.2d 425 (1985).

{¶ 132} Nichole’s statement did not implicate Maxwell’s confrontation

rights. Nichole’s out-of-court statement, repeated by Gregg, served the purpose

of explaining how certain events came to pass or why Maxwell confronted and

shot Nichole. See United States v. Cromer, 389 F.3d 662, 676 (6th Cir.2004).

Because the statements were not offered to establish the truth of the matter

asserted, the Confrontation Clause did not apply.

{¶ 133} Based on the foregoing, we overrule proposition XIV.

7. Victim-impact testimony (Proposition of law X)

{¶ 134} Maxwell argues that the trial court erred in admitting victim-

impact testimony during the guilt phase of the trial. Except where noted, defense

counsel failed to object to such evidence and thus waived all but plain error. See

State v. Reynolds, 80 Ohio St.3d 670, 679, 687 N.E.2d 1358 (1998).

{¶ 135} “Evidence relating to the facts attendant to the offense is ‘clearly

admissible’ during the guilt phase, even though it might be characterized as

victim-impact evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-

6046, 837 N.E.2d 315, ¶ 98, quoting State v. Fautenberry, 72 Ohio St.3d 435,

440, 650 N.E.2d 878 (1995).

{¶ 136} First, Maxwell complains that Nichole’s sister, Michelle Kenney,

provided improper victim-impact testimony about family history and other

personal matters. Michelle mentioned the names and ages of Nichole’s children

and her siblings and stated that Nichole had been married and divorced but kept

her married name. Michelle also described the inside of Nichole’s home at 1046

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East 146th Street. Maxwell also complains that Michelle testified that Nichole

wanted the women’s biological father, Heinz Kenney, to move into her house

after he was released from prison in July 2005 “because he was sick and

everything.”

{¶ 137} The testimony about Nichole’s family and her divorce provided

background information about Nichole’s relationship with Maxwell and the

witnesses who testified. Testimony about family members living at the house and

information about the layout of the house showed the people who had access to

the house and described where the shooting occurred. Moreover, none of this

testimony was overly emotional. Thus, we hold that no plain error occurred.

{¶ 138} Second, Maxwell contends that Michelle and Lauretta Kenney

improperly testified about their frequent phone contact with Nichole. Michelle

testified that she had daily contact with Nichole and talked with her on the phone

every day. Lauretta also testified that she had daily contact with Nichole and

spoke to her on the phone “[f]our or five times a day.”

{¶ 139} Maxwell also asserts that Michelle improperly testified that after

the shooting, she went to the hospital and saw Nichole “laying on an ambulance

gurney * * * and she had all these tubes in her and she had a hose in her head and

it was just blood everywhere.” Michelle also mentioned that family members

discussed the possibility that they might have to decide whether to continue

Nichole on life support. However, Nichole died before that decision was

necessary.

{¶ 140} Michelle’s and Lauretta’s frequent phone contact with Nichole

was relevant in explaining their awareness of and involvement in the events

leading up to Nichole’s murder. Michelle’s graphic description of Nichole’s

medical condition at the hospital and her testimony about the family discussion on

discontinuing life support were of more questionable relevance. But we hold that

no plain error resulted from admitting this testimony.

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{¶ 141} Third, Maxwell argues that the prosecutor improperly had C.M.

identify a photograph of her mother. However, Maxwell is incorrect. C.M.

identified a photograph of the bloodstained carpet where her mother was lying

after she had been shot. Nichole’s body was not in the picture. Thus, we reject

this claim.

{¶ 142} Finally, Maxwell complains that Dr. Joseph Felo, the chief deputy

coroner for Cuyahoga County, improperly testified about the pain that Nichole

must have suffered from one of the gunshot wounds. Dr. Felo testified that one of

the gunshot wounds went through the right eyeball and that there would have

been “excruciating pain associated with that.” The trial court sustained a defense

objection to this testimony and instructed the jury to disregard the answer.

{¶ 143} Maxwell suffered no prejudice from Dr. Felo’s testimony about

pain that Nichole suffered, because the trial court instructed the jurors to disregard

Dr. Felo’s comments. See State v. Heinish, 50 Ohio St.3d 231, 241, 553 N.E.2d

1026 (1990) (“Where a jury is cautioned and a correction is given to the jury, the

effect of improper evidence may be cured”). The trial court also sustained

objections on two other occasions when Dr. Felo began to refer to the victim’s

pain.

{¶ 144} Based on the foregoing, we overrule proposition X.

8. Sufficiency of the evidence (Proposition of law VII)

a. Evidence of prior calculation and design

{¶ 145} Maxwell argues that the state failed to prove that he murdered

Nichole with prior calculation and design as charged in Count One.

{¶ 146} When a court reviews a record for sufficiency, “[t]he relevant

inquiry is 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, following Jackson v.

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Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[T]he weight to

be given the evidence and the credibility of the witnesses are primarily for the

trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.

{¶ 147} Maxwell was convicted of one count of aggravated murder under

R.C. 2903.01(A), which states: “No person shall purposely, and with prior

calculation and design, cause the death of another * * *.”

{¶ 148} No bright-line test exists that “emphatically distinguishes between

the presence or absence of ‘prior calculation and design.’ Instead, each case turns

on the particular facts and evidence presented at trial.” State v. Taylor, 78 Ohio

St.3d 15, 20, 676 N.E.2d 82 (1997). However, when the evidence presented at

trial “reveals the presence of sufficient time and opportunity for the planning of

an act of homicide to constitute prior calculation, and the circumstances

surrounding the homicide show a scheme designed to implement the calculated

decision to kill, a finding by the trier of fact of prior calculation and design is

justified.” State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph

three of the syllabus.

{¶ 149} Maxwell argues that the evidence shows that he spontaneously

shot Nichole after observing her with another man, kissing him goodnight, and

receiving phone calls from him at home. Thus, Maxwell asserts that the evidence

is insufficient to support a conviction of prior calculation and design.

{¶ 150} Maxwell’s argument overlooks the evidence showing that he shot

Nichole in retaliation for her failure to change her grand jury testimony about the

felonious assault. Gregg testified that at Maxwell’s behest, he had contacted

Nichole and asked her to “stick to the story that it was a simple domestic”

incident when she testified before the grand jury. Nichole later told Maxwell that

she had told the truth during her grand jury testimony. Maxwell then told Gregg

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that “the bitch was going to make him kill her” and asked Gregg where he could

get a gun. Maxwell went to Nichole’s home and killed her four days later.

{¶ 151} We have previously held that a defendant’s threat to obtain a

weapon and kill his victim and his later actions carrying out that threat are enough

to prove prior calculation and design. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N.E.2d 996, at ¶ 45; State v. Sowell, 39 Ohio St.3d 322, 333, 530 N.E.2d

1294 (1988). Maxwell announced his intention to kill Nichole, and he never

abandoned that plan. Moreover, according to Gregg’s testimony, Maxwell told

Gregg that when he shot Nichole “she fell down and * * * she moved and then he

shot her again.” The second gunshot belies Maxwell’s argument that the murder

was spontaneous, and his actions show that he was carrying out his stated

intention to kill Nichole for testifying against him.

{¶ 152} In Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239,

we addressed a similar fact situation. On July 18, 2005, Fry and Tamela Hardison

had a fight in the apartment where they lived. Id. at ¶ 7. Hardison then filed

charges against Fry for assault and aggravated menacing. Id. at ¶ 148. While in

pretrial custody, Fry told Hardison to go to court and drop the charges. On July

21, Fry told Hardison that he had received paperwork that she had signed saying

that he had assaulted and threatened her. During that conversation, Fry told

Hardison, “I got two of them under my belt * * * toe tags,” meaning that he had

killed two people. He then told Hardison, “Fix this.” Id. at ¶ 150. Fry was

released from jail on July 25 and killed Hardison on July 31. We upheld the

sufficiency of the evidence and stated that there was sufficient time, reflection,

and activity involved in Hardison’s murder to show that Fry killed her with prior

calculation and design. Id. at ¶ 157.

{¶ 153} Just as in Fry, Maxwell demanded that Nichole lie to the grand

jury to have his charges reduced. Maxwell later learned that Nichole had told the

truth during her grand jury testimony, and he then expressed his intent to kill

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Nichole. As in Fry, several days elapsed, and then Maxwell went to Nichole’s

house and killed her. Construing the evidence in a light most favorable to the

prosecution, a rational juror could have concluded beyond a reasonable doubt that

Maxwell had formulated a plan to kill Nichole. Thus, we hold that there was

sufficient time, reflection, and activity involved in Nichole’s murder to show that

Maxwell killed her with prior calculation and design.

b. Evidence proving witness-murder specification (Proposition of law VIII)

{¶ 154} Maxwell argues that the state failed to prove his guilt on the

witness-murder specification.

{¶ 155} Maxwell was convicted of the R.C. 2929.04(A)(8) death-penalty

specification that the victim “was a witness to an offense and was purposely killed

in retaliation for the victim’s testimony in any criminal proceeding.”

{¶ 156} Maxwell continues to argue that the evidence showed that he

killed Nichole because he was upset with her for socializing with another man and

kissing him goodnight. Maxwell asserts that this motive superseded evidence that

he murdered Nichole in retaliation for her grand jury testimony. Thus, he argues

that the evidence is insufficient to support an (A)(8) finding.

{¶ 157} As discussed in proposition of law VII, the evidence shows that

Gregg, at Maxwell’s behest, contacted Nichole and attempted to persuade her to

change her grand jury testimony to obtain a charge reduction against Maxwell.

Upon learning that Nichole did not change her testimony, Maxwell stated his

intent to kill Nichole and asked Gregg where he could get a gun. Maxwell shot

and killed Nichole four days later.

{¶ 158} Although the evidence supports a finding that Maxwell killed

Nichole for testifying against him, the state was not required to prove that that

was Maxwell’s sole reason for killing Nichole. Fry, 125 Ohio St.3d 163, 2010-

Ohio-1017, 926 N.E.2d 1239, at ¶ 153. Even assuming that jealousy was also a

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motive for the murder, we hold that the state presented sufficient evidence to

prove the R.C. 2929.04(A)(8) specification.

c. Elements of witness-murder specification (Proposition of law IX)

{¶ 159} Maxwell maintains that the state failed to present sufficient

evidence to prove the R.C. 2929.04(A)(8) specification, that he killed Nichole to

prevent her “testimony in any criminal proceeding.”

{¶ 160} Nichole testified before the grand jury on Wednesday, November

23, 2005. According to Brian Mooney, Cuyahoga County assistant prosecutor at

the time of the murder, the grand jury returned a true bill against Maxwell for

felonious assault, abduction, and domestic violence on November 23. Because

the next day was Thanksgiving, the indictment was not filed with the clerk of

court until Monday, November 28, 2005.

{¶ 161} Maxwell argues that the (A)(8) specification is inapplicable

because the indictment for felonious assault was not filed until the day after the

murder and no criminal proceeding was underway. In support of this argument,

Maxwell cites R.C. 2901.13(E), which states, “A prosecution is commenced on

the date an indictment is returned or an information filed * * *.” He also cites

Crim.R. 55(A), which states: “An action is commenced for purposes of this rule

by the earlier of, (a) the filing of a complaint, * * * indictment, or information

with the clerk, or (b) the receipt by the clerk of the court of common pleas of a

bind over order under Rule 5(B)(4)(a).”

{¶ 162} R.C. 2929.04(A)(8) does not require that a criminal action be

pending when the defendant kills the witness. Indeed, a defendant can be charged

with the witness-murder specification in situations in which no criminal

proceeding has been initiated at the time the victim was murdered. State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 55. The statute

requires only (1) that the victim was a witness to an offense and (2) that the

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purpose of killing the witness was to prevent the victim from testifying in a

criminal proceeding. Id.

{¶ 163} As discussed above, the evidence established that Maxwell killed

Nichole because she testified against him before the grand jury. Accordingly, we

hold that Maxwell’s guilt of the R.C. 2929.04(A)(8) specification was established

by proof beyond a reasonable doubt even though the indictment for felonious

assault was not filed until the day after Nichole’s murder.

{¶ 164} Based on the foregoing, we reject propositions VII, VIII, and IX.

B. Penalty-phase issues

1. Ineffective assistance of counsel (Proposition of law I)

{¶ 165} Maxwell argues that his counsel failed to develop and present

evidence of his mental retardation, failed to investigate and present mitigating

evidence, and committed other errors during the penalty phase.

a. Failure to present evidence of mental retardation

{¶ 166} Maxwell argues that trial counsel failed to properly develop

evidence showing that he was mentally retarded and failed to request a hearing to

determine whether he was mentally retarded pursuant to Atkins v. Virginia, 536

U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). He also argues that trial

counsel failed to present such evidence during mitigation. Maxwell relies on

evidence presented during his competency proceedings and testimony presented

during the penalty phase.

(1) Facts

{¶ 167} During the competency hearing, Dr. Michael Aronoff, a

psychologist at the Court Psychiatric Clinic, testified that he had evaluated

Maxwell and administered the Wechsler Abbreviated Scale of Intelligence. These

test results showed that Maxwell had a full-scale IQ score of 72, which is in the

borderline range. He also had a verbal IQ score of 68, which is in the range of

mild mental retardation, and a performance IQ score of 83, which is in the low

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average range. Dr. Aronoff testified that earlier IQ test scores were not found in

Maxwell’s school records or any other records.

{¶ 168} Dr. Aronoff administered other tests, including the Competency

Assessment to Stand Trial for Defendants with Mental Retardation

(“CAST*MR”). Dr. Aronoff testified that Maxwell’s low score on that test was

significant “because he didn’t come up with a mentally retarded IQ score and he’s

had prior experience with the legal system.” Due to the possibility of malingering

on the CAST*MR, Dr. Aronoff recommended that Maxwell be referred to the

court evaluation unit of the North Coast Behavioral Health Care System for a 20-

day inpatient competency evaluation. The trial court ordered that Maxwell be

referred for such treatment.

{¶ 169} Dr. Alice Cook, a clinical psychologist, evaluated Maxwell during

his inpatient treatment at North Coast. During the competency hearing, Dr. Cook

testified that she performed no additional testing but was aware that Maxwell had

attained a verbal IQ score of 68 during earlier testing. But Dr. Cook indicated

that Maxwell was not mentally retarded. She stated, “In order to have a diagnoses

of mental retardation, it needed to be identified prior to the age of 18, and there

was no indication of any records from anyplace that he had been identified prior

to age 18 as being mentally retarded.”

{¶ 170} During the competency proceedings, defense counsel mentioned

that Dr. John Fabian, a board-certified psychologist, had also met with Maxwell

to assess his condition. Dr. Fabian was not called as a witness, and his assessment

of Maxwell was never introduced. Following the competency hearing, the trial

court ruled that Maxwell was competent to stand trial. Defense counsel presented

no argument that Maxwell was mentally retarded and did not request an Atkins

hearing.

{¶ 171} During the penalty phase, Dr. Sandra McPherson, a clinical

psychologist, testified as a defense mitigation witness. Dr. McPherson evaluated

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Maxwell and administered the Wechsler Adult Intelligence Scale and wide-range

achievement test. Dr. McPherson testified that Maxwell attained a full-scale IQ

score of 84, which placed him in the low average range. Maxwell also attained a

performance IQ score of 95 and a verbal IQ score of 77.

(2) Analysis

{¶ 172} On June 20, 2002, the Supreme Court of the United States ruled

that the execution of a mentally retarded criminal violates the Eighth

Amendment’s ban on cruel and unusual punishments. Atkins v. Virginia, 536

U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335. Atkins left to the states “ ‘the task of

developing appropriate ways to enforce the constitutional restriction’ ” on

executing the mentally retarded. Id. at 317, quoting Ford v. Wainwright, 477 U.S.

399, 405, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

{¶ 173} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d

1011, this court developed procedures and substantive standards for resolving

Atkins claims. Lott adopted a three-part test, which had been cited with approval

in Atkins, 536 U.S. at 308, fn. 3, that defined mental retardation as (1)

significantly subaverage intellectual functioning, (2) significant limitations in two

or more adaptive skills, such as communication, self-care, and self-direction, and

(3) onset before the age of 18. Lott at ¶ 12. Lott went on to state:

Most state statutes prohibiting the execution of the mentally

retarded require evidence that the individual has an IQ of 70 or

below. * * * While IQ tests are one of many factors that need to

be considered, they alone are not sufficient to make a final

determination on this issue. * * * We hold that there is a

rebuttable presumption that a defendant is not mentally retarded if

his or her IQ is above 70.

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Id.

{¶ 174} First, Maxwell argues that trial counsel were ineffective by failing

to request an Atkins hearing because IQ testing administered by Dr. Aronoff

showed that he had a verbal IQ score of 68.

{¶ 175} In order for counsel’s inadequate performance to constitute a

Sixth Amendment violation, Maxwell must show that counsel’s performance was

deficient and prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80

L.Ed.2d 674. Strickland requires that courts “apply[] a heavy measure of

deference to counsel’s judgments” and “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 691 and 689.

{¶ 176} Maxwell fails to establish that trial counsel were deficient in

failing to request an Atkins hearing. The results of two full-scale IQ tests showed

that Maxwell’s IQ was above 70. Dr. McPherson testified that Maxwell’s IQ

score was 84, which is significantly higher than the Lott cutoff level. There is

also no evidence that Maxwell suffered “significant limitations in two or more

adaptive skills.” Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at

¶ 2. Finally, Dr. Cook testified that Maxwell is not mentally retarded, because

there was “no indication” of “any records from anyplace that he had been

identified prior to age 18 as being mentally retarded.” Id.

{¶ 177} Maxwell argues that trial counsel were ineffective by allowing

Maxwell to be retested after earlier testing had potentially excluded him from

death eligibility. But Maxwell has not shown how Dr. McPherson’s testing

amounted to deficient performance. Dr. McPherson was an expert in this area,

and she determined which tests to administer. See State v. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 150.

{¶ 178} Moreover, if trial counsel had requested an Atkins hearing, the

trial court would have conducted a de novo review of the evidence in determining

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whether the defendant was mentally retarded. See Lott at ¶ 18. Lott states, “The

trial court should rely on professional evaluations of [a defendant’s] mental status,

and consider expert testimony, appointing experts if necessary in deciding this

matter.” Id. Thus, it is very likely that the trial court would have appointed other

experts to evaluate Maxwell and further testing would have been administered to

determine whether he was mentally retarded. Such testing would have likely

included the use of more definitive tests, like the Wechsler Adult Intelligence

scale, which Dr. McPherson administered.

{¶ 179} Maxwell also argues the additional test results were invalid

because they failed to take into account the “Flynn effect.” The Flynn effect

postulates that IQ scores rise over time and that IQ tests that are not renormed to

adjust for rising IQ levels will overstate a testee’s IQ. Walker v. True, 399 F.3d

315, 322 (4th Cir.2005). However, nothing about Maxwell’s Flynn-effect

adjusted IQ scores was presented during the trial or appears in the record. “A

reviewing court cannot add matter to the record before it, which was not part of

the trial court’s proceedings, and then decide the appeal on the basis of the new

matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph

one of the syllabus. Thus, these speculative claims are rejected.

{¶ 180} Second, Maxwell argues that trial counsel were ineffective in

failing to present evidence of his low intelligence during the penalty phase.

Maxwell claims that counsel were deficient by failing to call Dr. Aronoff as a

mitigation witness to testify about Maxwell’s borderline intellectual functioning

and his low IQ scores. “The defense decision to call or not call a mitigation

witness is a matter of trial strategy. * * * Likewise, the scope of questioning is

generally a matter left to the discretion of defense counsel. Debatable trial tactics

generally do not constitute ineffective assistance of counsel.” State v. Elmore,

111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 116.

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{¶ 181} While it is unclear why trial counsel did not call Dr. Aronoff as a

witness, trial counsel could have legitimately decided not to call Dr. Aronoff as a

witness in order to avoid further discussion about Maxwell’s possible malingering

when taking the CAST*MR test. Moreover, Dr. McPherson discussed Dr.

Aronoff’s evaluations and findings that documented Maxwell’s “borderline

intellectual functioning * * * at the time based on the WASI, a shorter form of the

Wechsler Adult Intelligence Scale.” The decision to present Dr. McPherson’s

summary of Dr. Aronoff’s findings instead of calling Dr. Aronoff as a witness

was a matter of trial strategy and does not constitute ineffective assistance. See

State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997) (“the presentation of

mitigating evidence is a matter of trial strategy”).

{¶ 182} In addition, the record shows that the decision not to call Dr.

Aronoff as a witness did not result from a lack of investigation. Maxwell’s

lawyers knew that Dr. Aronoff existed and what his testimony would be. Because

Maxwell’s counsel knew what Dr. Aronoff had to say, counsel’s decision not to

call him as a witness during the penalty phase is “ ‘virtually unchallengeable.’ ”

State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 158,

quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶ 183} Maxwell cites the ABA guidelines, which state, “Counsel’s duty

to investigate and present mitigating evidence is now well established.”

Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases, Guideline 10.7, comment, 80 (Rev.Ed.2003). Maxwell argues that

these guidelines required trial counsel to present Dr. Aronoff’s testimony about

Maxwell’s low IQ scores. But the ABA guidelines are not “inexorable demands”

with which all capital defense counsel must fully comply. Van Hook, 558 U.S. at

8, 130 S.Ct. 13, 175 L.Ed.2d 255. Moreover, “[a]ttorneys are not expected to

present every potential mitigation theory, regardless of their relative strengths.”

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Fears v. Bagley, 462 Fed.Appx. 565, 576 (6th Cir.2012). Thus, trial counsel were

not duty-bound to present Dr. Aronoff’s testimony.

{¶ 184} Third, Maxwell argues that trial counsel were ineffective by

failing to request instructions that would have allowed the jury to make an Atkins

finding. But trial counsel were not ineffective by failing to request such

instructions, because the jury does not decide whether a capital defendant is

mentally retarded. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263,

at ¶ 187.

{¶ 185} Finally, Maxwell argues that trial counsel were ineffective by

failing to make a penalty-phase closing argument that discussed his low

intelligence as a mitigating factor. During the penalty-phase opening statements,

trial counsel told jurors that the defense mitigation would consist of testimony

from family members, friends, and coworkers about Maxwell’s life, and

testimony from Dr. McPherson about mitigating factors that she had found.

During closing arguments, trial counsel did not make an argument about

Maxwell’s low intelligence. Rather, trial counsel argued residual doubt, a sole

juror’s ability to prevent the death penalty, Maxwell’s alcohol abuse, testimony

that Maxwell is a kind and good-hearted man, and the reality of a life sentence as

a sentencing option.

{¶ 186} Trial counsel’s argument appears to reflect a decision to downplay

Maxwell’s mental deficiencies as a mitigating factor while emphasizing other

factors, such his family background and the realities of serving life in prison as

punishment. Maxwell has failed to demonstrate that trial counsel’s argument was

professionally unreasonable. See Bobby v. Bies, 556 U.S. 825, 836, 129 S.Ct.

2145, 173 L.Ed.2d 1173 (2009), quoting Atkins v. Virginia, 536 U.S. 304, 321,

122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“ ‘[R]eliance on mental retardation as a

mitigating factor can be a two-edged sword that may enhance the likelihood that

the aggravating factor of future dangerousness will be found by the jury’ ”).

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Moreover, Maxwell fails to show prejudice, as it cannot be said that there was a

reasonable likelihood of a different outcome had defense counsel argued

Maxwell’s low intelligence as a mitigating factor.

b. Failure to prepare for mitigation

{¶ 187} Maxwell argues that trial counsel were also ineffective because

they were unprepared for the penalty-phase hearing.

{¶ 188} Maxwell argues that trial counsel showed that they were

unprepared for mitigation by requesting a continuance on the first day of the

penalty-phase proceedings. The jury returned its guilt-phase verdict on February

23, 2007, and the penalty-phase proceedings began on February 27, 2007. On the

afternoon of February 27, trial counsel filed a motion requesting a continuance in

the mitigation proceedings because they had not had adequate time to prepare a

meaningful defense. Trial counsel’s reasons for a continuance were Maxwell’s

mental illness, counsel’s continued inability to properly communicate with

Maxwell, and the prosecution’s failure to provide the defense with records that

the state wanted to be considered during mitigation. The prosecutor responded

that there were no records that the state planned to present during its case-in-chief.

The trial court denied the motion for a continuance.

{¶ 189} The presentation of mitigating evidence is a matter of trial

strategy. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,

¶ 74. Counsel in a capital case has an “obligation to conduct a thorough

investigation of the defendant’s background” to determine the availability of

mitigating evidence. Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146

L.Ed.2d 389 (2000).

{¶ 190} Counsel’s “investigations into mitigating evidence ‘should

comprise efforts to discover all reasonably available mitigating evidence and

evidence to rebut any aggravating evidence that may be introduced by the

prosecutor.’ ” (Emphasis sic.) Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct.

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2527, 156 L.Ed.2d 471 (2003), quoting ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases, section 11.4.1(C), 93 (1989).

This constitutionally required background investigation is

necessary to enable counsel to make strategic choices about

presenting a mitigation defense. * * * Indeed, the deference owed

to counsel’s strategic judgments about mitigation is directly

proportional to the adequacy of the investigations supporting such

judgments. Accordingly, when evaluating the reasonableness of

counsel’s mitigation strategy in a capital case, “a reviewing court

must consider the reasonableness of the investigation said to

support that strategy.”

Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008), quoting Wiggins, 539 U.S. at

527.

{¶ 191} Trial counsel employed a criminal investigator, a clinical

psychologist who was a mitigation specialist, and another psychologist who was a

mitigation expert. The mitigation specialist interviewed Maxwell on several

occasions beginning in May 2006. Dr. McPherson reviewed Maxwell’s school

records, prison records, and the records from his competency assessments. Thus,

the defense had thoroughly prepared for the penalty phase.

{¶ 192} Nevertheless, Maxwell argues that the record shows that trial

counsel were unprepared for the penalty phase. First, Maxwell argues that

counsel failed to develop evidence that his mental illness prevented him from

communicating with counsel during the penalty phase. However, the trial court

ruled that Maxwell was “capable of understanding the nature and objectives of

this proceeding and of assisting his counsel” after the competency hearing had

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been conducted. Thus, counsel reasonably could have decided that any further

development of this claim was unnecessary.

{¶ 193} Second, Maxwell argues that trial counsel were unprepared

because they called only family members to testify that he was nonviolent, a good

father, and a hard worker. Maxwell also questions trial counsel’s effectiveness in

calling these witnesses because their testimony opened the door to cross-

examination about Maxwell’s criminal record.

{¶ 194} Maxwell’s initial claim is incorrect because Dr. McPherson

provided expert testimony about Maxwell’s background, his drug and alcohol

problems, and his mental status. Testimony from family members and friends did

reveal Maxwell’s criminal past. But there were advantages as well as

disadvantages in calling these witnesses. These witnesses helped to humanize

him in front of the jury and showed that he had many positive characteristics as a

good father and a hard worker.

{¶ 195} Moreover, trial counsel knew that Dr. McPherson was going to

discuss Maxwell’s criminal record during her testimony. Dr. McPherson testified

that Maxwell’s records from the Allen Correctional Institute showed that he was

compliant with authority and had the skills to adjust to prison life. We hold that

counsel’s decision to call family members and friends was a reasonable trial

strategy and did not violate Strickland. See State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 218.

{¶ 196} Third, Maxwell argues that trial counsel failed to develop

evidence about his alcohol dependency. Dr. McPherson diagnosed Maxwell with

alcohol abuse, probable dependency, currently in remission in a controlled setting.

She testified that Maxwell has “a history that included blackouts, that included

high use and tolerance” of alcohol that met “the criteria for an alcoholism or

alcohol dependence diagnosis.”

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{¶ 197} Maxwell argues that trial counsel were deficient by failing to ask

any of his family members about his drinking problems. Maxwell asserts that this

omission undermined Dr. McPherson’s diagnosis, since she acknowledged during

cross-examination that her diagnosis of alcohol dependency was based on

Maxwell’s self-reporting. Maxwell also asserts that the lack of family testimony

allowed the prosecutor to argue during closing argument that his drinking was not

that serious, since “the people that see him every single day” said nothing about

his alcoholism. But Maxwell’s claims about family testimony are speculative

because it is unknown what they would have said about his drinking problems.

Thus, we reject this claim.

{¶ 198} Finally, Maxwell argues that the lack of a mitigation investigation

was apparent because trial counsel indicated during the competency hearing that

they had not seen his high school records. Trial counsel mentioned that they had

not seen these records during the competency proceedings on February 6, 2007.

Yet trial counsel had ample time to review these records prior to mitigation

because the penalty-phase proceedings did not begin until February 27, 2007. We

also reject this claim.

c. Failure to develop a coherent mitigation theme

{¶ 199} Maxwell argues that trial counsel were ineffective by failing to

develop a coherent mitigation theme. Trial counsel’s strategy was to convince the

jury that Maxwell should receive a life sentence by emphasizing Maxwell’s

positive traits and demonstrating that he had low intelligence, suffered from

alcohol dependency, had no significant history of violence, and would be a good

prisoner. Trial counsel also raised residual doubt as a reason for a life sentence.

{¶ 200} In support of this strategy, trial counsel presented the testimony of

Maxwell’s family members and coworkers that Maxwell was kind-hearted, a

good worker, and a family man. Dr. McPherson reviewed Maxwell’s educational

records and discussed test results that showed his low intelligence. She also

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reviewed his prison records and explained how they showed that Maxwell would

be a good prisoner if given a life sentence. Dr. McPherson also explained that

Maxwell had suffered from alcohol dependency. The defense theory, although

unsuccessful, was coherent and fit into the testimony. Counsel made a strategic

decision in presenting the defense mitigation theory and were not ineffective. See

State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 351-352.

d. Arguing residual doubt

{¶ 201} Maxwell argues that trial counsel were deficient by improperly

raising and arguing residual doubt as the only mitigating factor during the

penalty-phase closing arguments. He cites State v. McGuire, 80 Ohio St.3d 390,

686 N.E.2d 1112 (1997). In McGuire, this court held that “[r]esidual doubt is not

an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the

issue of whether the defendant should be sentenced to death.”2 Id. at syllabus.

{¶ 202} Trial counsel raised residual doubt as a reason not to impose the

death penalty during closing arguments but also set forth other reasons for a life

sentence. Trial counsel emphasized family testimony demonstrating Maxwell’s

positive traits, his lack of any significant history of violence, and his apology to

Nichole’s family. They also argued that the jury should consider that Maxwell

suffered from alcoholism, headaches, and neurological problems. Thus, trial

counsel did not rely exclusively on residual doubt in arguing that Maxwell should

not be sentenced to death.

{¶ 203} Maxwell also does not explain how raising residual doubt during

closing arguments was prejudicial. Thus, he has failed to demonstrate that trial

counsel was ineffective by arguing residual doubt. We reject this argument.

2. Residual doubt of guilt has been defined as “a lingering uncertainty about facts, a state of mind

that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ” Franklin v.

Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring).

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e. Misidentification of Dr. McPherson’s qualifications

{¶ 204} Maxwell argues that trial counsel improperly elicited from Dr.

McPherson that she was a certified mitigation specialist. Maxwell asserts that

certification as a mitigation specialist is a designation that does not exist.

{¶ 205} Dr. McPherson testified that she had been certified as a mitigation

specialist. Trial counsel then tendered her as an expert witness in the area of

mitigation. Without objection, the trial court allowed Dr. McPherson to testify as

an expert.

{¶ 206} Maxwell misstates the court’s ruling and erroneously claims that

the trial court sustained the state’s objection to Dr. McPherson’s designation as a

certified mitigation specialist and that this ruling undermined the credibility of the

witness. In any event, there is little chance that any improper testimony about Dr.

McPherson’s certification as a mitigation specialist was prejudicial. Thus, we

reject this ineffectiveness claim.

f. Failure to object to cross-examination of Dr. McPherson

{¶ 207} Maxwell argues that trial counsel failed to object to cross-

examination of Dr. McPherson that “limited the jury’s consideration of the

evidence it could treat as mitigation.”

{¶ 208} In State v. DePew, 38 Ohio St.3d 275, 288, 528 N.E.2d 542

(1988), the court stated that “it is the defendant who has the right to present and

argue the mitigating factors. If he does not do so, no comment on any factors not

raised by him is permissible.”

{¶ 209} Dr. McPherson provided testimony about Maxwell’s mental

status, possible neurological problems, ability to adapt to prison life, and his

history of alcohol abuse that the jury could consider as mitigating evidence. The

prosecutor’s cross-examination of Dr. McPherson addressed these issues. The

prosecutor’s questioning did not elicit objectionable information that limited the

jury’s consideration of the mitigating evidence.

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{¶ 210} Moreover, the trial court instructed the jury, “You must consider

all the mitigating factors presented to you. Mitigating factors include any factors

that weigh in favor of a sentence other than death. This means that you are not

limited to specific mitigating factors, you should consider any mitigating factors

that weigh in favor of a sentence other than death.” These instructions ensured

that the jury understood its role in considering mitigation. Thus, trial counsel

were not deficient by failing to object to such questioning.

{¶ 211} Maxwell also argues that trial counsel were deficient by failing to

object to the prosecutor’s reference to the R.C. 2929.04(B)(7) mitigating factor as

the “catchall” factor. R.C. 2929.04(B)(7) permits a capital defendant to present

“[a]ny other factors that are relevant to the issue of whether the offender should

be sentenced to death.” Maxwell claims that trial counsel should have objected to

the word “catchall” because that designation implied that mitigation presented

under (B)(7) did not merit the same consideration as evidence relating to the other

statutory mitigating factors. But nothing shows that the jury gave less weight to

(B)(7) evidence. Thus, we also reject this speculative claim.

g. Failure to object and preserve error

{¶ 212} Finally, Maxwell complains that trial counsel failed to object to

the trial court’s use of the term “recommendation” during voir dire, failed to

properly request a neurologist to assist in mitigation, and failed to object to the

prosecutor’s penalty-phase argument. Maxwell raised counsel’s failure to object

to the trial court’s use of the term “recommendation” in proposition IV. But this

claim lacks merit because counsel did object. Maxwell’s other two claims recast

unsuccessful substantive propositions of law into ineffectiveness claims. But as

discussed below in proposition XI, Maxwell was not prejudiced by counsel’s

failure to object to the prosecutor’s penalty-phase argument. And as discussed

next in proposition XII, trial counsel were not ineffective by failing to request a

neurologist for mitigation purposes.

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{¶ 213} Based on the foregoing, we overrule proposition I.

2. Failure to appoint a neurologist (Proposition of law XII)

{¶ 214} Maxwell argues that the trial court erred by failing to appoint a

neurologist to develop mitigation. He also repeats claims that trial counsel were

ineffective by failing to request a neurologist for mitigating purposes.

a. Facts

{¶ 215} On January 19, 2007, trial counsel filed a motion requesting funds

to allow Dr. John Fabian to perform a neurological evaluation of Maxwell’s

mental condition. Trial counsel stated that in assessing Maxwell’s medical

history during the competency evaluation, “the Court Psychiatric Clinic and

Northcoast indicated that Defendant was rendered unconscious for some time

[due] to a motorcycle accident.” Thus, trial counsel requested the court “to allow

Dr. Fabian to continue to evaluate Defendant for Competency and Sanity and to

allow him to conduct neurological testing and prepare reports outlining his

findings and opinions.”

{¶ 216} During the competency hearing on February 6, 2007, trial counsel

clarified that they were not requesting Dr. Fabian to conduct the neurological

evaluation of Maxwell, since Dr. Fabian was not a neurologist. Dr. Fabian was

serving as a liaison with neurologists who perform this type of testing. Trial

counsel then stated that they were requesting a neurological evaluation because

Maxwell had told them that his life and the way he looks at things were different

since that motorcycle accident. Thus, counsel requested a neurological evaluation

to provide “objective medical findings in terms of an MRI or a CAT scan as per

Dr. Fabian’s recommendation.”

{¶ 217} During the competency hearing, Dr. Cook testified that she had

talked to Maxwell about the motorcycle accident, and he told her that he had

received no treatment and had not been hospitalized as a result of the accident.

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{¶ 218} Dr. Aronoff testified that he had reviewed Maxwell’s medical

records that showed he was treated at Meridia-Huron Hospital on March 29, 1999,

after the motorcycle accident. Dr. Aronoff quoted findings from the medical

records that reported that Maxwell was “sitting on motorcycle which was struck

from behind by a car at low speed. He was thrown off the bike on to the right

side. No loss of consciousness. Was wearing a helmet. Right shoulder, right hip,

right elbow, right ankle are painful. No headache or neck pain.” Dr. Aronoff also

stated that x-rays were taken of Maxwell’s shoulder, elbow, ankle, and hip, and

they were all unremarkable.3 However, Dr. Aronoff testified that Maxwell told

him that he was rendered unconscious in the motorcycle accident.

{¶ 219} The trial court denied the defense request for a neurological

evaluation. Trial counsel did not renew the request for a neurologist during the

remainder of the trial.

b. Analysis

{¶ 220} As a matter of due process, an indigent defendant in a capital case

is entitled to the basic tools with which to conduct an adequate defense. Ake v.

Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the

United States Supreme Court concluded that the state must provide a psychiatric

expert for the defense when the defendant has made a preliminary showing that

his sanity will be a significant factor at trial. Id. at 74. Although Ake dealt only

with a defendant’s entitlement to psychiatric assistance, this court has recognized

that due process may require the state to provide other types of expert assistance

to a criminal defendant. State v. Mason, 82 Ohio St.3d 144, 149, 694 N.E.2d 932

(1998). Moreover, R.C. 2929.024 requires the trial court to provide expert

assistance when “reasonably necessary for the proper representation of a

defendant charged with aggravated murder.”

3. Maxwell also supports his claim with Dr. McPherson’s testimony. However, Dr. McPherson’s

testimony was not presented for consideration on this motion.

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{¶ 221} In Mason, the court held that the state must provide an indigent

criminal defendant with funds to obtain expert assistance when the defendant has

made a particularized showing that (1) there exists a reasonable probability that

the requested expert would aid the defense and (2) denial of that expert assistance

would result in an unfair trial. The trial court’s ruling on such requests is a matter

left to the exercise of the court’s “sound discretion.” Id. at syllabus.

{¶ 222} Trial counsel did not request the appointment of a neurologist for

purposes of mitigation. Rather, as the defense concedes, trial counsel requested a

neurologist in the context of his competency evaluation. Thus, this claim lacks

merit because the trial court never entertained a defense motion for a neurologist

for mitigation purposes.

{¶ 223} Even assuming that the trial court should have construed the

defense motion for a neurologist as carrying over for mitigation purposes, we hold

that no error occurred. A defendant must show not just a mere possibility but a

reasonable probability that an expert would aid in his defense. State v. Broom, 40

Ohio St.3d 277, 283, 533 N.E.2d 682 (1988).

{¶ 224} The defense request for a neurologist was based upon Dr.

Fabian’s recommendation and reports obtained during his competency evaluation

stating that Maxwell was rendered unconscious following an earlier motorcycle

accident. But Dr. Fabian did not testify, and any written reports from him were

not submitted to the court.

{¶ 225} Maxwell’s medical records showed that he suffered no loss of

consciousness and reported no headache or neck pain as a result of that

motorcycle accident. Thus, Maxwell’s request merely raised the possibility that

he had suffered a brain injury as a result of a motorcycle accident. It was not

supported by anything in his medical records. Moreover, the medical records

contradicted Maxwell’s story about what happened after the accident. Maxwell

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told Dr. Aronoff that he was rendered unconscious, and he told Dr. Cook that he

received no medical treatment.

{¶ 226} Maxwell cites State v. Eppinger, 91 Ohio St.3d 158, 743 N.E.2d

881 (2001), in arguing that the defense was entitled to a neurologist. Eppinger

addressed a defendant’s right to an expert psychologist at a sexual-offender-

classification hearing. Eppinger held that a defendant is entitled to such an expert

if the trial court determines that the expert’s services are reasonably necessary to

aid in determining whether the offender is likely to engage in the future in one or

more sexually oriented offenses. Id. at syllabus. Eppinger involved a totally

different type of fact situation from the present case and does not support

Maxwell’s argument.

{¶ 227} Maxwell also cites Frazier v. Huffman, 343 F.3d 780 (6th

Cir.2003), in arguing that the trial court erred in not appointing a neurologist. In

Huffman, a capital case, the court held that defense counsel were ineffective by

failing to investigate and present evidence of the defendant’s brain impairment

during the trial. Id. at 797. The court found that counsel were ineffective because

after reviewing the defendant’s medical records, they were aware that the

defendant had suffered a brain injury from falling from a ladder, but they failed to

investigate and present evidence about it. Id. at 794-795. Unlike the records in

Huffman, Maxwell’s medical records contain nothing that documents that he had

suffered any brain injuries. Thus, Huffman is inapposite.

{¶ 228} Based on the foregoing, we hold that the trial court did not abuse

its discretion in denying the defense request for a neurologist. Compare

Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 44-46 (no

particularized need demonstrated for neuropharmacologist); State v. Campbell, 90

Ohio St.3d 320, 327-328, 738 N.E.2d 1178 (2000) (“mere possibility that the

[specialized chest X-ray] could have had some [mitigation] value to the defense

was not enough”).

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c. Ineffective assistance of counsel

{¶ 229} In proposition of law I, Maxwell asserted that trial counsel were

ineffective by failing to request a neurologist to assist in the development of

mitigation. Yet Maxwell provides no argument and cites no legal authority in

support of this claim.

{¶ 230} Our review of this ineffectiveness claim starts with a review of

Dr. McPherson’s testimony to determine whether she provided counsel with

additional information about Maxwell’s head injuries from the motorcycle

accident that required counsel to conduct a further investigation.

{¶ 231} Dr. McPherson administered the Bender-Gestalt test during her

evaluation of Maxwell. She described the Bender-Gestalt as a “copying task” that

serves as a low-level screening test. She testified that there was “some indication

[that] his hand might not have been steady, but there were distortions that didn’t

make a lot of sense, so the question remained as to whether or not there was some

kind of organically based anomaly, something that affects how his brain processes

information.”

{¶ 232} Dr. McPherson testified about past injuries that Maxwell reported

suffering. Maxwell stated that he had been briefly unconscious after falling off a

horse but that he did not receive any medical treatment for that incident. Dr.

McPherson also discussed the motorcycle accident and said, “[H]e may have been

briefly unconscious. He was certainly conscious when he was seen at the hospital

for that one.” Dr. McPherson also stated that there was nothing in Maxwell’s

medical records showing that he had suffered a traumatic head injury in the

motorcycle accident.

{¶ 233} In discussing her final diagnosis, Dr. McPherson stated that

Maxwell suffered from an adjustment disorder with depression and probable

alcohol dependency. Dr. McPherson testified that she could not determine

whether Maxwell had had a traumatic brain injury and advised that “whoever is

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working with him next should continue to be aware that this may be there and try

to come up with information to either rule it in or out.” She also testified that

Maxwell has “some type of cognitive difficulty. He may have some underlying

organic problems and these may have rendered him more likely to react with

irritability since that’s one of the known things that can occur with certain kinds

of organicity making him more prone to act out in a stressful situation such as a

relationship that was flawed.”

{¶ 234} Dr. McPherson’s testimony about the need for further testing to

rule out possible brain impairment appears to be based upon Maxwell’s

performance on the Bender-Gestalt test. She testified that the Bender-Gestalt test

indicated some distortions, but she did not indicate that these results were

conclusive as to brain damage. Thus, the Bender-Gestalt results raised only the

possibility of brain impairment. See State v. Allen, 73 Ohio St.3d 626, 642, 653

N.E.2d 675 (1995) (trial court did not abuse discretion in refusing to appoint

neurologist based on Bender-Gestalt test that showed little likelihood of brain

damage).

{¶ 235} Maxwell fails to establish that counsel were deficient by failing to

request a neurologist for mitigation purposes based on Dr. McPherson’s

testimony. First, the record does not show that trial counsel failed to investigate

the need to request a neurologist after reviewing Dr. McPherson’s findings. We

cannot infer a defense failure to investigate from a silent record; the burden of

demonstrating ineffective assistance is on Maxwell. See Were, 118 Ohio St.3d

448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244.

{¶ 236} Second, the trial court could have properly denied a motion for a

neurologist because Maxwell would have been unable to make a particularized

showing of a reasonable probability that the requested expert would aid in his

defense. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932, syllabus. Dr. McPherson

reiterated that Maxwell’s medical records did not show that he had suffered a

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traumatic head injury during the motorcycle accident. Indeed, Dr. McPherson’s

information about a possible head injury resulted from Maxwell’s self-reporting.

{¶ 237} Finally, Maxwell has failed to show that the absence of a

neurological evaluation resulted in an unfair trial. Id. Dr. McPherson testified

that there might be “some underlying organic problems and these may have

rendered him more likely to react with irritability * * * in a stressful situation.”

(Emphasis added.) The evidence showed that Maxwell murdered Nichole in

retaliation for her testimony. Accordingly, this was a planned murder rather than

a sudden encounter involving a stressful situation. Thus, we reject this

ineffectiveness claim.

{¶ 238} Based on the foregoing, proposition XII is overruled.

3. Reintroduction of guilt-phase evidence (Proposition of law XVI)

{¶ 239} Maxwell argues that the trial court erred by admitting guilt-phase

evidence during the penalty phase that was irrelevant. The trial court, over

defense objection, admitted photographs showing the victim displaying injuries

she suffered during the felonious assault, a photograph of the victim without

injuries, and an autopsy photograph of the victim’s face.

{¶ 240} R.C. 2929.03(D)(1) provides that at the penalty stage of a capital

proceeding, the court and jury shall consider “any evidence raised at trial that is

relevant to the aggravating circumstances the offender was found guilty of

committing * * * [and] hear testimony and other evidence that is relevant to the

nature and circumstances of the aggravating circumstances the offender was

found guilty of committing.” DePew, 38 Ohio St.3d at 282-283, 528 N.E.2d 542.

The trial court did not abuse its discretion in readmitting photographs displaying

injuries that Nichole suffered during the felonious assault or the autopsy

photograph, because these items bore some relevance to the nature and

circumstances surrounding the R.C. 2929.04(A)(8) specification. The photograph

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of Nichole without injuries was of questionable relevance, but no prejudice

resulted from its introduction.

{¶ 241} Based on the foregoing, proposition XVI is overruled.

4. Prosecutorial misconduct during closing arguments (Proposition of law XI)

{¶ 242} Maxwell argues that the prosecutor committed various instances

of prosecutorial misconduct during his closing arguments. However, except

where noted, trial counsel failed to object to the prosecutor’s argument and thus

waived all but plain error. State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364

(1977), paragraph one of the syllabus.

{¶ 243} Whether a prosecutor’s remarks constitute misconduct depends

upon (1) whether the remarks were improper and, if so, (2) whether the remarks

prejudicially affected an accused’s substantial rights. State v. Smith, 14 Ohio

St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the analysis “is the

fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455

U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶ 244} First, Maxwell argues that, over defense objection, the prosecutor

commented, “I know it’s devastating for the families, especially Nichole’s family

and what they’ve gone through.” The mention of “the personal situation of the

victim’s family, without more, does not constitute misconduct.” State v.

Goodwin, 84 Ohio St.3d 331, 339, 703 N.E.2d 1251 (1999). The prosecutor’s

comments about the victim’s family were brief and did not dwell on the pain they

suffered. Thus, we hold that no misconduct occurred. See State v. Brinkley, 105

Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 140.

{¶ 245} Second, Maxwell argues that the prosecutor improperly argued

that his ability to adapt to prison life was not a mitigating factor. During

arguments, the prosecutor stated:

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You must engage in that weighing process and * * * with that

aggravating circumstance, the retaliation think what have you

heard in this case that mitigates against that * * *. What mitigating

factors have you heard? He’s capable of conforming to prison

life? That’s a mitigating factor? Is that—really? You assign the

weight that you think each of these deserve.

{¶ 246} “Prosecutors can urge the merits of their cause and legitimately

argue that defense mitigation evidence is worthy of little or no weight.” State v.

Wilson, 74 Ohio St.3d 381, 399, 659 N.E.2d 292 (1996). The prosecutor was not

arguing that Maxwell’s ability to adapt to prison was not a mitigating factor.

Rather, the prosecutor was responding to Dr. McPherson’s testimony that

Maxwell could conform his conduct to the highly structured setting of a prison.

He was arguing that such evidence was not entitled to significant weight. Nothing

in this argument resulted in plain error.

{¶ 247} Finally, Maxwell contends that the prosecutor misbehaved by

arguing the absence of mitigating factors the defense never raised. The

prosecutor argued:

You’ve had good people come up here and tell you about Mr.

Maxwell, try to mitigate against this aggravating circumstance.

We didn’t hear bad childhood, abusive situations, * * * wanting for

anything in life. We just didn’t hear it. We heard he had support.

We heard he was raised correctly. He went to church. You know

and the Judge—the doctor said no mental defect or disease. Did

you hear any remorse? I mean I don’t—those are the things that

you have to consider, folks.

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{¶ 248} “A prosecutor can respond to issues raised by an accused.” State

v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 101. The

prosecutor was responding to extensive testimony presented by Maxwell’s friends

and family members, stating that Maxwell was kind-hearted, a good man, and a

family man. Ernestine Brewer, Maxwell’s mother, testified that he was “a great

kid” and was raised in the church. The prosecutor’s comments about remorse

responded to Maxwell’s unsworn statement: “I would like to say that I’m sorry to

the victim’s family and my family for going through this. I wouldn’t want

nobody’s family to go through this.” The prosecutor’s comments about defense

testimony and Maxwell’s unsworn statement represented fair comment and did

not constitute plain error.

{¶ 249} Based on the foregoing, proposition XI is rejected.

C. Remaining issues

1. Appropriateness of death sentence (Proposition of law XVIII)

{¶ 250} Maxwell argues that the death penalty is not appropriate because

of the compelling mitigating evidence presented in his behalf. We will address

these arguments during our independent sentence evaluation.

2. Cumulative error (Proposition of law XVII)

{¶ 251} Maxwell claims that the cumulative effect of errors committed

during trial deprived him of a fair trial and necessitates reversal of his conviction

and death sentence.

{¶ 252} We have recognized the doctrine of cumulative error. State v.

DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the

syllabus. Under this doctrine, a conviction will be reversed when the cumulative

effect of errors in a trial deprives a defendant of a fair trial even though each of

the numerous instances of trial-court error does not individually constitute cause

for reversal. Id. at 196-197.

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{¶ 253} The doctrine of cumulative error is not applicable in the present

case. Maxwell received a fair trial, and there are not numerous instances of trial-

court error. Moreover, Maxwell was not prejudiced by any error at the trial or

penalty phase of the proceedings.

3. Settled issues (Proposition of law XIX)

{¶ 254} Maxwell challenges the constitutionality of Ohio’s death-penalty

statutes under both the United States Constitution and the Ohio Constitution. We

reject these claims on the basis of State v. Carter, 89 Ohio St.3d 593, 607, 734

N.E.2d 345 (2000); State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987),

paragraph one of the syllabus; State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d

264 (1984), paragraph one of the syllabus.

{¶ 255} Maxwell also challenges the constitutionality of Ohio’s

reasonable-doubt standard. However, this court has affirmed the constitutionality

of R.C. 2901.05(D). Jones, 91 Ohio St.3d at 347, 744 N.E.2d 1163; see also State

v. Goff, 82 Ohio St.3d 123, 132, 694 N.E.2d 916 (1998).

IV. Independent Sentence Evaluation

{¶ 256} Having considered Maxwell’s propositions of law, this court must

independently review Maxwell’s death sentence for appropriateness and

proportionality and independently determine whether the aggravating

circumstance of which Maxwell was convicted outweighs the mitigating factors

pursuant to R.C. 2929.05(A). The R.C. 2929.04(A)(3) murder-to-escape-

accountability specification was merged with the R.C. 2929.04(A)(8) retaliation

specification before sentencing.

A. Aggravating circumstance

{¶ 257} The evidence at trial established beyond a reasonable doubt that

Maxwell murdered Nichole McCorkle in retaliation for her testimony in a

criminal proceeding, R.C. 2929.04(A)(8). Accordingly, we consider whether the

aggravating circumstance of which Maxwell was convicted, R.C. 2929.04(A)(8),

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murder in retaliation for testimony in another criminal proceeding, outweighs the

evidence presented in mitigation.

B. Mitigating evidence presented

{¶ 258} Maxwell called ten mitigating witnesses and made an unsworn

statement. William Steward, Maxwell’s oldest brother, testified that Maxwell

comes from a good family. Maxwell has four brothers and three sisters. Steward

stated that Maxwell has a good heart and will give the shirt off his back to help

people. Maxwell graduated from high school and later obtained vocational

training and learned how to operate heavy machinery. Steward also stated:

“[Maxwell] is not a monster or anything. * * * [T]he picture that’s being painted

here is I think a little bit different than what really lurks here.” Finally, Steward

stated, “I personally would like to say to the victims that I apologize and I’m sorry

about * * * what the family is going through and this whole incident.”

{¶ 259} Herbert Nelson, grew up with Maxwell, a first cousin, and

Maxwell’s family would visit Nelson, who lived in Arkansas. Nelson later moved

to the Cleveland area, and he and Maxwell worked jobs together. Nelson testified

that Maxwell was a “real good worker” and a “real good guy.” Nelson stated that

he missed Maxwell and asked the court to have mercy on him.

{¶ 260} Veronica Nelson, Herbert’s wife, had known Maxwell since she

became engaged to marry her husband five years earlier. Veronica testified that

she has always felt comfortable around Maxwell. She stated that he was “always

well-dressed, well-behaved, not drunken, not cursing, [and] mannerable.”

Maxwell was also “loving towards his family, his mother, his sisters, at all times.”

{¶ 261} Roscoe Horne, a neighbor, testified that he had known Maxwell

since 2002 or 2003 and that Maxwell had performed construction work for

Horne’s construction company. Horne stated that Maxwell operated heavy

equipment and was an excellent worker and very trustworthy. Horne also

described him as a good neighbor who was friendly and went out of his way to

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help other people. Horne testified that Maxwell often took food to older people

during the holidays. Horne concluded by saying, “[A] lot of people love him and

our hearts go out to him.”

{¶ 262} Bernard McNear, Maxwell’s brother-in-law, had known Maxwell

for five or six years. McNear testified that Maxwell offered him the opportunity

to work on construction jobs and helped teach him the work. McNear stated that

Maxwell was an outgoing person and was always willing to talk with McNear and

give him positive advice.

{¶ 263} Theresa McNear, Maxwell’s younger sister, testified that Maxwell

was a nice guy. Theresa spent a lot of time tagging along with Maxwell when

they were growing up. They went fishing together, and Maxwell tried to teach

her how to ride a horse. Maxwell provided Theresa with help in dealing with

stressful issues and helped Theresa’s daughter with her homework. Theresa also

testified that Maxwell loved his daughter, C.M., and had a good interaction with

her. Theresa concluded that Maxwell had a huge heart, loved hard, and would

help anybody.

{¶ 264} Sharon Graves, Maxwell’s older sister, testified that he was a

playful child and was always there if his brothers and sisters needed him. Graves

stated that Maxwell had a loving relationship with C.M. Graves also stated that

Maxwell had been supportive of her children and went to her daughter’s high

school graduation. Graves emphasized that Maxwell was a “good person.”

{¶ 265} Andy Maxwell, the defendant’s younger brother, had always

wanted to follow his big brother. When Andy was eight years old, Maxwell saved

Andy from drowning. Andy testified that Maxwell had “been like that” all

through life. He stated that Maxwell had a great relationship with C.M. and took

her horseback riding and did other activities with her. Maxwell had also been

very helpful with other people. For example, Maxwell distributed a list of

information about felons needing jobs to possible employers.

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{¶ 266} Ernestine Brewer, Maxwell’s mother, testified that Maxwell was

born in Arkansas but spent most of his life in Ohio. Brewer testified that Maxwell

was raised in the church and was a “Bible-taught kid.” Brewer said that Maxwell

spent time in prison but was always by her side after his release. Brewer said that

Maxwell was a “good kid.” In conclusion, she told the jury, “He might have fell

by the wayside and I’m asking them to please spare his life * * *. People do

things out of anger, you know, so that’s it.”

{¶ 267} Dr. Sandra McPherson evaluated and conducted psychological

testing of Maxwell. Dr. McPherson evaluated Maxwell’s educational records

from the Cleveland public schools, his records from Allen Correctional Institute,

where he spent five years, and his competency assessments.

{¶ 268} Dr. McPherson testified that Maxwell did not do particularly well

in school. His grades “tended to be * * * D’s and F’s; there were some C’s.” Dr.

McPherson stated that Maxwell’s criminal records show charges and convictions

for drug trafficking and that there was also “a domestic violence associated with

the victim of this crime.” Maxwell’s prison records show that he was “compliant

with authority.” Dr. McPherson stated that “there was a report rendered to the

parole board saying that his conduct had been basically exemplary and that he

would be appropriate for release.”

{¶ 269} Maxwell also received a series of assessments during his

competency evaluation that found him to be competent. Dr. McPherson testified

that there were symptoms of possible mental illness, but there were also questions

as to whether he was exaggerating them. Dr. McPherson also testified that there

was a confirmed diagnosis of alcohol dependence, and other diagnoses included

“a differential between paranoid personality disorder and paranoid psychosis

which was unresolved as well as borderline intellectual functioning.” A history of

head trauma was also noted in these evaluations.

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