State v. Montgomery (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Montgomery, Slip Opinion No. 2016-Ohio-5487.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-5487

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

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Montgomery, Slip Opinion No. 2016-Ohio-5487.]

Criminal law—Aggravated murder—Murder—Domestic violence—In a capital

case, the aggravating circumstances codified in R.C. 2929.04(A) require

the production of evidence sufficient to prove their existence beyond a

reasonable doubt—Convictions and sentence of death affirmed.

(No. 2012-1212—Submitted January 27, 2016—Decided August 24, 2016.)

APPEAL from the Court of Common Pleas of Franklin County,

No. 10CR-12-7125.

_________________

FRENCH, J.

{¶ 1} On Thanksgiving Day 2010, appellant, Caron Montgomery, murdered

his former girlfriend, Tia Hendricks; their two-year-old son, Tyron Hendricks; and

Tia’s nine-year-old daughter, Tahlia Hendricks. Montgomery entered a guilty plea

to charges of murder, domestic violence, and aggravated murder with capital

specifications. In 2012, a three-judge panel unanimously sentenced him to death

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for the aggravated murders of Tyron and Tahlia and to 15 years to life in prison for

Tia’s murder.

{¶ 2} We now review Montgomery’s direct appeal of right and, for the

following reasons, affirm his convictions and sentence of death.

I. BACKGROUND

{¶ 3} Following Montgomery’s arrest on November 27, 2010, appellee, the

State of Ohio, charged him with two counts of aggravated murder with respect to

each child: one for prior calculation and design under R.C. 2903.01(A) (Counts 2

and 4) and one for murder of a person under the age of 13 under R.C. 2903.01(C)

(Counts 3 and 5). All four aggravated-murder counts included capital

specifications for course of conduct (R.C. 2929.04(A)(5)) and for murder of a child

younger than 13 years old (R.C. 2929.04(A)(9)). Counts 2 and 3, pertaining to

Tahlia’s murder, included a third capital specification for murder to escape

detection, apprehension, trial or punishment for another offense (R.C.

2929.04(A)(3)). The state also charged Montgomery with one count of murder

under R.C. 2903.02(A) and one count of domestic violence under R.C. 2919.25(A)

with respect to Tia Hendricks.

{¶ 4} Montgomery waived a jury trial and pleaded guilty to the indictment

on May 7, 2012. The three-judge panel then held a plea hearing as required by R.C.

2945.06. The state presented the following evidence through its sole witness,

Detective Dana Croom, a Columbus homicide detective and the lead detective in

the investigation.

A. The State’s Evidence

{¶ 5} On Thanksgiving morning, Columbus police received a 911 call from

a female caller. Croom testified at the plea hearing that the dispatcher “could hear

[the female caller] yelling, ‘Caron, Caron.’ ” Police traced the call to Tia

Hendricks’s phone, and the dispatcher triangulated the call to 470 Rosslyn Avenue

in Sharon Township. Croom explained that the Rosslyn Avenue address was “less

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than a hundred yards” from the apartment building where Tia resided, 465

Broadmeadows. However, officers were unable to locate the exact apartment from

which the 911 call came.

{¶ 6} According to Croom, Tia’s family contacted police on the day after

Thanksgiving after becoming concerned that she and her children had not shown

up for Thanksgiving dinner. Tia’s coworkers were also concerned that she had not

reported to work on Friday.

{¶ 7} Columbus police went to Tia’s apartment. Although Croom was not

one of the responding officers, he testified that police found no signs of forced

entry. In fact, the door to Tia’s apartment was locked from the inside with a chain

lock, which officers cut with a bolt cutter. The chain part of the lock and the inside

doorknob were smeared with what appeared to be blood. Officers discovered the

bodies of Tia, Tahlia, and Tyron on the living room floor. All three were

pronounced dead at the scene. According to Croom, a police lieutenant who

checked the condition of the bodies described them as “cold,” meaning that “they

had been dead for a while.”

{¶ 8} Tia was lying on her back, arms outstretched, with her head and upper

torso covered by an article of clothing. Her blue jeans were undone and pulled

slightly down, exposing her underwear, and there were several credit and

identification cards and an unopened condom package askew on the floor near her

head. Tahlia and Tyron were lying face up near the couch, their heads each covered

with a blood-stained pillow.

{¶ 9} Officers discovered Montgomery alive and lying on the bed in the

master bedroom. He appeared to be injured. Officers could not tell the extent of

his injuries, but could see “a little bit of blood.” Croom testified that “when the

officers * * * eventually turned him over, he had a knife * * * barely in his neck.

When they rolled him over to try to put him on the stretcher, the knife fell off onto

the bed.” Montgomery was treated for superficial injuries to his neck, arms, hands,

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and the top of his head. Croom did not personally observe Montgomery’s injuries,

but he testified that the lieutenant who did opined that the injuries to his neck were

“fresh.”

{¶ 10} Croom testified that the police “had people who said that

[Montgomery] had lived in [Tia’s] apartment.” And Tia’s mother, Deborah

Hendricks, told Croom that Tia and Montgomery had “argued a lot” during their

off-and-on relationship. The state also introduced a Franklin County Municipal

Court complaint charging Montgomery with domestic violence and assault against

Tia and the related judgment entry indicating that in 2009, he had pleaded guilty to

and was convicted of the domestic-violence charge.

{¶ 11} Croom also testified about the autopsies conducted by Deputy

Franklin County Coroner Dr. Tae L. An on November 27 and 28, 2010. Tia’s

autopsy revealed 23 stab wounds to her neck, left flank, back, left shoulder, and

right forearm. As described in the autopsy report, Dr. An concluded that Tia’s

death was caused by two stab wounds in particular, one that lacerated the left

common carotid artery and one that lacerated the right internal jugular vein. In

addition, Dr. An located more than 20 cutting wounds to the upper portion of Tia’s

body and found that these wounds contributed to her death. At the plea hearing,

Croom opined that the wounds to Tia’s hands and arms are “[c]ommonly referred

to as defensive wounds.”

{¶ 12} Tahlia’s autopsy revealed five stab wounds around her neck and nine

cutting wounds to her chin, right shoulder and right arm; Croom identified these as

defensive wounds. The autopsy report indicated that stab wounds to the front of

her neck severed the left and right common carotid arteries and the left internal

jugular vein and caused her death.

{¶ 13} Tyron’s autopsy revealed that “[o]ne large, widely gaping, incised

wound” to the front of his neck lacerated the right internal jugular vein, trachea,

and esophagus, causing his death. Croom testified that Dr. An found no defensive

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wounds and that the wound to Tyron’s neck was actually created by two separate

injuries.

{¶ 14} Officers from the crime-scene unit photographed and documented

the scene in the apartment and collected evidence. From the master bedroom,

officers collected the knife that fell out of Montgomery’s neck, a bleach bottle that

appeared to have blood on it, and a pair of men’s pants with apparent blood stains.

The knife was over 12 inches long, the blade accounting for just over half the total

length, and it was bloody and bent. Subsequent DNA testing confirmed that the

blood present on the knife, the bleach bottle, and the pants collected from the

bedroom matched Montgomery. Croom opined that the presence of Montgomery’s

blood on the knife blade indicated that he had injured his hands when they slipped

down the blade while he was stabbing and cutting the victims.

{¶ 15} Croom testified that crime-scene-unit officers also observed near the

entrance to the apartment a pair of men’s shoes that appeared to have blood on

them. They also noted a bloody shoeprint nearby. Officers collected a blood swab

from the top of a space heater found near the entrance to Tahlia’s bedroom and a

blood swab from the hallway wall just outside her bedroom. Results of DNA

testing done on both blood swabs indicated that they were a match to Tia.

{¶ 16} Officers also collected evidence from Tia’s car, which was found in

a parking lot in front of a different building in the apartment complex. Family

members told police that Tia usually parked her car near her own building. During

a canvass of the area, officers spoke to a female witness, identified only as “Ms.

Battle,” who told them that on Thanksgiving evening, she saw a black male exit the

vehicle and proceed “southbound and then westbound behind her apartment, which

was 425 Broadmeadows.” Ms. Battle was unable to identify Montgomery as the

person she saw get out of the car. Blood swabs collected from the steering wheel

and gear shift knob of Tia’s car matched Montgomery.

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B. Verdict and Sentencing

{¶ 17} On May 8, 2012, the panel returned guilty verdicts as to all counts

and specifications in the indictment. The panel proceeded immediately to hold a

mitigation hearing, at which the state reintroduced its evidence from the plea

hearing. Montgomery presented seven witnesses and made an unsworn statement.

{¶ 18} Following the mitigation hearing, the panel merged the two

aggravated murder convictions regarding Tahlia (Counts 2 and 3), merged the two

aggravated murder convictions regarding Tyron (Counts 4 and 5), and merged the

domestic-violence conviction (Count 6) with the murder conviction regarding Tia

(Count 1).

{¶ 19} As to both aggravated-murder convictions, the panel determined that

the aggravating circumstances outweighed the mitigating factors beyond a

reasonable doubt and sentenced Montgomery to death. The panel further ordered

Montgomery to serve a sentence of 15 years to life in prison for Tia’s murder.

{¶ 20} Montgomery now appeals his convictions and sentences, raising

seven propositions of law. For clarity, we address Montgomery’s propositions out

of order.

II. ANALYSIS

A. Validity of Jury Waiver and Guilty Plea

{¶ 21} In proposition of law No. 2, Montgomery argues that both his jury

waiver and guilty plea were not knowing, intelligent, and voluntary. He contends

that the colloquies surrounding those decisions were inadequate and that the trial

court should have further inquired into his mental health and use of prescription

medications before accepting his waiver and guilty plea.

1. Jury Waiver

{¶ 22} A jury waiver must be voluntary, knowing, and intelligent. State v.

Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 45. “Waiver may not

be presumed from a silent record.” Id. A written jury waiver is “presumptively

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voluntary, knowing, and intelligent.” State v. Fitzpatrick, 102 Ohio St.3d 321,

2004-Ohio-3167, 810 N.E.2d 927, ¶ 37. Only a “plain showing that the defendant’s

waiver was not freely and intelligently made” will rebut that presumption. Id.,

citing Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87

L.Ed. 268 (1942).

a. Factual Background

{¶ 23} At a hearing on May 7, 2012, defense counsel presented the trial

court with Montgomery’s signed jury waiver. In response to the court’s questions,

counsel affirmed that they had reviewed the waiver with him, informed him of his

constitutional right to a jury trial, and explained that by waiving the right, he was

electing to have his case heard by a panel of three judges, who would ultimately

determine his guilt and, if necessary, the appropriate punishment. Defense counsel

further affirmed that they had explained that death was a potential punishment if

the panel of judges found him guilty of any of the “charges with the specifications.”

Finally, defense counsel affirmed that they believed Montgomery was mentally

competent and that “he understands and knows what he’s doing here today.”

{¶ 24} The court then conducted a colloquy with Montgomery to ensure

that his waiver was knowing, intelligent, and voluntary. In response to the court’s

questions, Montgomery stated that to his knowledge, he had never been found

mentally ill or incompetent and that he was currently under the influence of two

prescription medications, Thorazine and Risperdal, which had been prescribed for

depression. Montgomery denied having been diagnosed with any other “mental

issues.”

{¶ 25} Montgomery acknowledged that he understood he had a

constitutional right to have a jury hear his case and determine guilt and, if

necessary, punishment. He affirmed that his counsel had explained that by waiving

a jury, he was electing not to have 12 people determine his guilt but was electing

instead to have a panel of three judges decide his guilt and, if necessary,

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punishment. And he affirmed that no one had promised him anything or threatened

him in any way to cause him to want to waive his right to a jury trial. The court

asked, “Do you in fact today waive your right to trial by jury and elect to have this

matter heard by a panel of three judges?” Montgomery answered, “Yes, sir.”

{¶ 26} Montgomery’s signed jury waiver was journalized on the trial

court’s docket and is in the record on appeal. The written waiver contains the

following acknowledgment: “I fully understand that under the laws of this State, I

have a Constitutional right to a trial by jury. I wish to give up my right to a trial by

jury in this case.”

{¶ 27} Based on the waiver colloquy and the signed waiver form, the trial

court determined that Montgomery had knowingly, intelligently, and voluntarily

waived his right to a trial by jury.

b. Analysis

{¶ 28} We have long held that “[t]he Criminal Rules and the Revised Code

are satisfied by a written waiver, signed by the defendant, filed with the court, and

made in open court, after arraignment and opportunity to consult with counsel.”

State v. Jells, 53 Ohio St.3d 22, 26, 559 N.E.2d 464 (1990). A jury waiver is

knowing, intelligent, and voluntary “ ‘if the defendant fully understands the nature

of the right and how it would likely apply in general in the circumstances—even

though the defendant may not know the specific detailed consequences of invoking

it.’ ” (Emphasis sic.) State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855

N.E.2d 48, ¶ 69, quoting United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450,

153 L.Ed.2d 586 (2002).

{¶ 29} Nothing in the record supports Montgomery’s contention that his

jury waiver was not knowing, intelligent, and voluntary. Before the trial court

accepted his waiver, Montgomery affirmed that he was making the decision freely

and that he understood that he was relinquishing a constitutional right to a jury trial

in favor of having a three-judge panel determine guilt and, if necessary,

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punishment. He acknowledged his awareness that if he were found guilty, the

punishment could be death. He also confirmed that his attorneys had discussed

with him the jury-trial right and the option to waive it, and his counsel declared

their belief that he was competent to waive the right and that he understood the

consequences of a waiver.

{¶ 30} Without more, the fact that Montgomery was on prescription

medications for depression does not defeat the presumption that his written waiver

was knowing, intelligent, and voluntary. Montgomery does not allege that he, in

fact, failed to understand the waiver proceedings or the effect of his decision to

waive—or that his decision was somehow involuntary—because of the prescription

medications. Instead, he asserts that “[a]n expert opinion on the effects of the

medications * * * was necessary, especially given that he was giving up critical

rights and facing the death penalty * * *.” But Montgomery offers no authority for

his assertion, and the burden of demonstrating error in the waiver proceedings is on

him. See Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at

¶ 41, citing Adams, 317 U.S. 269, 63 S.Ct 236, 87 L.Ed. 268. Montgomery also

argues that his waiver was not knowing and intelligent because the trial court did

not specifically inform him that the death penalty could not be imposed should one

juror vote against it. We have previously rejected the claim that a trial court must,

during a jury-waiver colloquy, inform the defendant of the need for juror unanimity

to impose death. State v. Bays, 87 Ohio St.3d 15, 19-21, 716 N.E.2d 1126 (1999).

{¶ 31} Montgomery’s complaint that his waiver is invalid because the trial

court failed to inform him that “it would only take one of the twelve jurors voting

against conviction for him to be found not guilty” is likewise based on a faulty

premise. Under Crim.R. 31(A), unanimity is required when the jury returns either

a guilty or a not-guilty verdict. The trial court would have erred had it informed

Montgomery that the lack of a unanimous verdict would have resulted in an

acquittal.

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{¶ 32} Finally, he argues that the court failed to inform him that a jury

waiver would result in a waiver of certain claims on appeal. However, “ ‘[s]ince

* * * no inquiry is required, the trial court’s failure to make specific inquiries of the

defendant cannot be error.’ ” Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855

N.E.2d 48, at ¶ 70, quoting State v. Filiaggi, 86 Ohio St.3d 230, 238, 714 N.E.2d

867 (1999). Moreover, we are “aware of no Supreme Court precedent * * * that

conditions the validity of a jury waiver upon a defendant’s understanding of the

appellate process.” Filiaggi v. Bagley, 445 F.3d 851, 856 (6th Cir.2006).

{¶ 33} Montgomery has not made a plain showing that his written jury

waiver was unknowing, unintelligent or involuntary.

2. Guilty Plea

{¶ 34} Montgomery also contends that the trial court failed to adequately

inquire into his mental state and whether his prescription medications had any effect

on his ability to enter a knowing, intelligent, and voluntary guilty plea. He

maintains that once the trial court was aware that he was taking prescription

medications for depression at the time of his plea, it should have ordered a

competency evaluation. We disagree.

a. Factual Background

{¶ 35} Shortly after he waived his right to a jury, a three-judge panel

assembled and Montgomery pleaded guilty to all counts and specifications in the

indictment. At the start of the plea hearing, the assistant prosecutor presented the

panel with a written plea form signed by Montgomery and all counsel. The assistant

prosecutor also informed the panel that there was no jointly recommended sentence.

{¶ 36} In response to the panel’s questions, defense counsel affirmed that

they had discussed the matter with Montgomery, that they approved of the written

plea form, and that they approved of his entering a guilty plea in the case. The

panel then asked defense counsel, “At this time do you believe Mr. Montgomery to

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be mentally competent and do you believe he understands and knows what he’s

doing here today?” Defense counsel replied, “Yes, Your Honor.”

{¶ 37} The following exchange then took place:

JUDGE REECE: Mr. Montgomery, before the Court can

accept your plea, sir, we must first advise you of your rights and ask

you some questions so we can determine whether your plea is being

made voluntarily, knowingly, and with understanding.

***

JUDGE REECE: [H]ave you ever been found to be mentally ill

or mentally incompetent?

THE DEFENDANT: No, sir.

JUDGE REECE: Are you currently under the influence of

drugs?

THE DEFENDANT: Just Risperdal and Thorazine.

JUDGE REECE: Alcohol?

THE DEFENDANT: No, sir.

JUDGE REECE: And the prescription drugs, I asked you about

that a little earlier this morning, those are prescribed by a medical

doctor?

THE DEFENDANT: Yes, sir.

JUDGE REECE: And you are taking those pursuant to that

prescription?

THE DEFENDANT: Yes, sir.

JUDGE REECE: My understanding is you are taking that for

depression, correct?

THE DEFENDANT: Yes, sir.

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JUDGE REECE: Sir, as you appear here today, do you

understand that you have a right to have a trial in this matter and to

have the trial—these three judges to determine whether or not you

are guilty of the offense that you are charged with here today?

THE DEFENDANT: Yes, sir, I understand.

JUDGE REECE: And my understanding is that you want to

give up that right to a trial and to enter a plea of guilty to the charges

in this case; is that correct?

THE DEFENDANT: Yes, Your Honor.

{¶ 38} The panel also advised Montgomery of the charges in the indictment,

of the maximum penalties those charges carried, and of each of the constitutional

rights that would be waived upon entry of his guilty plea. After each discrete

explanation, Montgomery said that he understood.

{¶ 39} Montgomery also affirmed that his plea was voluntary and that no

one had promised him anything in return for his plea or threatened him in order to

induce his plea. Finally, he acknowledged that his attorneys had reviewed the

written plea form with him before he signed it, had been “diligent and effective” in

representing him and in trying to act in his best interests, had informed him of his

options, and had allowed him to make the decision as to whether to plead guilty or

go to trial.

b. Sufficiency of Inquiry into Mental State

{¶ 40} A guilty plea that is not knowing, intelligent, and voluntary violates

the Ohio and United States Constitutions. State v. Engle, 74 Ohio St.3d 525, 527,

660 N.E.2d 450 (1996), citing Kercheval v. United States, 274 U.S. 220, 223, 47

S.Ct. 582, 71 L.Ed. 1009 (1927). It is the trial court’s duty, therefore, to ensure that

a defendant “has a full understanding of what the plea connotes and of its

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consequence.” Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969).

{¶ 41} To effectuate this constitutional mandate, we have held that before

accepting a guilty plea, a “trial court must inform the defendant that he is waiving

his privilege against compulsory self-incrimination, his right to jury trial, his right

to confront his accusers, and his right of compulsory process of witnesses.” State

v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the

syllabus, following Boykin; see also Crim.R. 11(C)(2)(c). In addition to these

constitutional rights, the trial court must determine that the defendant understands

the nature of the charge, the maximum penalty involved, and the effect of the plea.

Crim.R. 11(C)(2)(a) and (b).

{¶ 42} A plea may be involuntary if “the accused does not understand the

nature of the constitutional protections he is waiving * * * or because he has such

an incomplete understanding of the charge that his plea cannot stand as an

intelligent admission of guilt.” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct.

2253, 49 L.Ed.2d 108 (1976), fn. 13. Thus, “a plea does not qualify as intelligent

unless a criminal defendant first receives ‘real notice of the true nature of the charge

against him, the first and most universally recognized requirement of due

process.’ ” Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140

L.Ed.2d 828 (1998), quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572,

85 L.Ed. 859 (1941).

{¶ 43} We have acknowledged that where a trial court engages in a full

Crim.R. 11 plea colloquy with the defendant and addresses all of the constitutional

rights waived by the plea, a “reviewing court should be permitted to consider

additional record evidence to reconcile any alleged ambiguity [in the colloquy].”

State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 24.

Accordingly, to determine whether the panel’s plea colloquy with Montgomery was

sufficient to ensure that he entered a voluntary and knowing plea, we examine the

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totality of the circumstances. See Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-

3167, 810 N.E.2d 927, at ¶ 56, citing Henderson at 644 and State v. Rainey, 3 Ohio

App.3d 441, 442, 446 N.E.2d 188 (10th Dist.1982).

{¶ 44} In this case, the panel fully complied with Ballard and Crim.R.

11(C)(2), conducting a thorough colloquy with Montgomery and his counsel to

ensure that he understood the proceedings and was capable of entering his guilty

plea knowingly, intelligently, and voluntarily. But Montgomery contends that the

panel’s inquiry into the effect, if any, that his prescription medication had on his

mental state was inadequate under State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-

1580, 805 N.E.2d 1064. Examining the totality of the circumstances, we do not

find, as Montgomery contends, that the three-judge panel inadequately inquired

into what effect, if any, his prescription medication had on his mental state.

{¶ 45} In Mink, we stated that “[a]dditional inquiry is necessary into a

defendant’s mental state once a defendant seeking to enter a guilty plea has stated

that he is under the influence of drugs or medication.” Id. at ¶ 66. And applying

that standard, we upheld Mink’s guilty plea and rejected his argument that the trial

court inadequately questioned him about any potential effects that his

antidepressant medication had on his competency to plead guilty. Id. at ¶ 68.

{¶ 46} We noted that before he entered his plea, Mink underwent two

competency evaluations, each resulting in a finding that Mink was competent. Id.

at ¶ 32, 64. One of the two competency reports reflected the psychologist’s

awareness that Mink was taking an antidepressant, yet that fact did not alter the

psychologist’s conclusion that he was competent to plead guilty. Id. at ¶ 64. In

addition, during the plea colloquy, Mink confirmed that his prescription

medications did not interfere with his ability to understand the proceedings. Id.

{¶ 47} We hold that the panel in this case complied with Mink. The panel

had no reason to believe that Montgomery had any issues with competence or could

not intelligently and voluntarily enter a guilty plea. Throughout the nearly 18

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months preceding Montgomery’s guilty plea, the presiding judge repeatedly

observed Montgomery and spoke with him and his two defense attorneys. Prior to

the plea hearing, Montgomery appeared multiple times before the presiding judge,

including at the jury waiver hearing, and neither he nor his counsel ever made any

representation to the court that he had any mental-health issues or any issues with

competency.

{¶ 48} Indeed, Montgomery even now presents us with no reason to believe

that he was incapable of intelligently and voluntarily pleading guilty. Rather, he

merely alleges that the panel did not ask enough questions about his prescription

medication at the time of the plea.

{¶ 49} But the record demonstrates that the presiding judge learned that

Montgomery was taking two medications prescribed for mental illness at the jury-

waiver hearing and that in that colloquy, the judge asked whether he had been

prescribed the medications and whether he was taking them pursuant to the

prescription. As described above, after learning that Montgomery was taking the

medications, the presiding judge directly asked him whether he understood the

constitutional rights he was forgoing by waiving his right to a jury, whether he was

doing so voluntarily, and whether his counsel had reviewed the jury waiver with

him prior to the hearing.

{¶ 50} Likewise, at the plea hearing, the presiding judge revisited the

subject of Montgomery’s prescription medications for the benefit of the other

judges composing the three-judge panel. And only after Montgomery reaffirmed

that he was taking medications pursuant to a doctor’s prescription did the panel

conduct the full plea colloquy in compliance with Crim.R. 11. The panel asked

Montgomery whether he understood the charges against him, the constitutional

rights he was waiving by pleading guilty, the consequences of his guilty plea, and

the maximum sentence he could potentially receive if found guilty of the capital

specifications. The panel then verified that he understood the written plea

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agreement and had executed it with the advice of his counsel. Montgomery

answered each of the panel’s questions in the affirmative and in a coherent fashion.

{¶ 51} The panel also directly addressed Montgomery’s lawyers and asked

whether they had any reason to believe that he was not competent or capable of

voluntarily and intelligently pleading guilty. Defense counsel, both of whom were

experienced and certified capital defense attorneys, were aware that Montgomery

was medicated for depression, yet they had no concerns about his competence. See

Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)

(noting that the representations of the defendant’s lawyers at a Rule 11 hearing

constitute a formidable barrier in a subsequent challenge to the defendant’s

competency). The record demonstrates that defense counsel never raised an issue

to the court about Montgomery’s ability to understand the proceedings and enter a

knowing and voluntary guilty plea.

{¶ 52} In short, there is no evidence in the record to indicate that

Montgomery was not in full possession of his faculties at the plea hearing or at any

other point during the pendency of his case. Under these circumstances and

considering the totality of the evidence, we find that the panel’s inquiry into

Montgomery’s mental state and use of prescription medications and in its

acceptance of Montgomery’s guilty plea was adequate and that Montgomery

voluntarily and knowingly pleaded guilty to capital murder.

c. Failure to Sua Sponte Order Competency Hearing

{¶ 53} Montgomery argues that the panel’s failure to sua sponte order a

competency hearing upon learning that he was taking prescription medication at the

time of the plea renders his plea invalid. In this proposition, Montgomery does not

contend that he was legally incompetent as a result of the prescription medications

that he was taking or that his medications caused him to unknowingly and

unintelligently enter his guilty plea. Instead, he contends that the panel’s reliance

on defense counsel’s assessment of Montgomery’s competence and on its own

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observations of Montgomery throughout the proceedings was insufficient. In

support, he invokes Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064,

and Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, and contends

that our decisions in those cases establish that a competency evaluation must be

ordered by the court when a capital defendant is taking prescription medication and

enters a guilty plea.

{¶ 54} As Montgomery observes, competency evaluations were conducted

in Mink and Ketterer before each defendant entered his guilty plea to capital

charges. See Mink at ¶ 31-32; Ketterer at ¶ 67. But we have never held that a court

must order a competency hearing before accepting a guilty plea from a capital

defendant who is taking a prescription medication for mental illness, and we decline

to do so now.

{¶ 55} “R.C. 2945.37(G) creates a rebuttable presumption that a defendant

is competent to stand trial.” State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324,

844 N.E.2d 307, ¶ 56. A trial court must hold a competency hearing if a request is

made before trial, R.C. 2945.37(B), or if the record contains sufficient indicia of

incompetence that an inquiry is necessary to ensure that the defendant is accorded

his right to due process and a fair trial. State v. Were, 94 Ohio St.3d 173, 175, 761

N.E.2d 591 (2002), citing State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433

(1995).

{¶ 56} The constitutional standard for assessing a defendant’s competency

to enter a guilty plea is the same as that for determining his competency to stand

trial. Godinez v. Moran, 509 U.S. 389, 396, 398-399, 113 S.Ct. 2680, 125 L.Ed.2d

321 (1993). The defendant must have a “ ‘sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding’ and [have] ‘a

rational as well as factual understanding of the proceedings against him.’ ” Id. at

396, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824

(1960). Further, “[i]n addition to determining that a defendant who seeks to plead

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guilty * * * is competent, a trial court must satisfy itself that the waiver of his

constitutional rights is knowing and voluntary.” Id. at 400. And it is a matter of

statutory and decisional law that “[t]he fact that a defendant is taking antidepressant

medication or prescribed psychotropic drugs does not negate his competence to

stand trial.” Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 71;

see also Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, at ¶ 38,

citing R.C. 2945.37(F).

{¶ 57} Here, no request was made to evaluate Montgomery’s competency

before or during the plea hearing. Likewise, the record does not indicate that

Montgomery failed to understand the proceedings or was incapable of consulting

with his counsel “ ‘with a reasonable degree of rational understanding.’ ” Godinez

at 396, quoting Dusky at 402. During the plea colloquy, Montgomery appropriately

answered the court’s questions and, when asked by the court, affirmed that defense

counsel had discussed with him the options of a trial and a plea and provided him

with the necessary information to allow him to make an informed decision to plead

guilty.

{¶ 58} Additionally, defense counsel, who were appointed to represent

Montgomery in January 2011, retained forensic psychologist Dr. Bob Stinson more

than a year before Montgomery’s plea hearing. Billing records demonstrate that

Dr. Stinson spent many hours reviewing Montgomery’s records, conducted five

separate in-person evaluations with him, met with the defense team several times,

and prepared a report. Since defense counsel retained an expert to evaluate

Montgomery’s mental health, presumably counsel had access, at the time of the

plea, to information regarding his mental health and/or alleged incompetence.

However, counsel offered no such evidence. Additionally, the fact that defense

counsel retained Dr. Stinson more than a year before the plea hearing and, in that

span of time, met with Montgomery on several occasions indicates that counsel’s

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response to the panel’s query about Montgomery’s competence was not

uninformed, as Montgomery now implies.

{¶ 59} Finally, Montgomery’s behavior throughout the plea colloquy and

hearing was not outrageous, irrational or confused. See State v. Williams, 99 Ohio

St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 63 (noting that during the time that

counsel represented Williams, “counsel discovered no basis to question [his]

competence. Moreover, Williams displayed no outrageous, irrational behavior

during trial, and counsel never complained about his lack of cooperation”). We

have previously found it “ ‘noteworthy that nobody on the spot thought [the

defendant’s] behavior raised any question as to his competence.’ ” (Emphasis sic.)

Id., quoting State v. Cowans, 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999).

{¶ 60} The three-judge panel did not err by failing to sua sponte order

Montgomery to undergo a competency evaluation.

B. Sufficiency of the Evidence and Manifest Weight

{¶ 61} In proposition of law No. 1, Montgomery argues that the evidence

presented during the plea hearing was insufficient to convict him of the escaping-

detection specification attached to Counts 2 and 3 (aggravated murder of Tahlia).

Montgomery also contends that his conviction of that specification is against the

manifest weight of the evidence.

1. Applicability of Sufficiency Constitutional Standard

{¶ 62} As a threshold matter, the state advances several unconvincing

arguments supporting its contention that it was not required to provide sufficient

evidence of the capital specifications in light of Montgomery’s guilty plea.

{¶ 63} Quoting Smith v. McCotter, 786 F.2d 697 (5th Cir.1986), the state

asserts that the constitutional sufficiency standard “is ‘inapplicable to convictions

based on a guilty plea,’ ” because the plea operates as a complete admission of

factual guilt.

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{¶ 64} A guilty plea is a complete admission of factual guilt, Crim.R.

11(B)(1), and ordinarily bars a defendant from asserting on appeal any

constitutional error that preceded the guilty plea, see Fitzpatrick, 102 Ohio St.3d

321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 78. However, we have held that “when

the offense charged is a capital offense, R.C. 2945.06 and Crim.R. 11(C)(3) require

the state to prove guilt of an aggravated-murder charge with death specifications

even when an accused pleads guilty.” Ketterer, 111 Ohio St.3d 70, 2006-Ohio-

5283, 855 N.E.2d 48, at ¶ 93. Therefore, sufficiency challenges on appeal are

“ ‘expressly permitted’ ” when a defendant pleads guilty to aggravated murder with

capital specifications. Id., quoting Carpenter v. Mohr, 163 F.3d 938, 946 (6th

Cir.1998), rev’d on other grounds, sub nom. Edwards v. Carpenter, 529 U.S. 446,

120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

{¶ 65} Second, the state argues that neither R.C. 2945.06 nor Crim.R.

11(C)(3) requires that “independent proof be provided in support of the

specifications.” Those provisions, according to the state, “are directed toward the

question * * * whether the defendant is guilty of aggravated murder or some lesser

offense.” (Emphasis sic.) Thus, the state concludes that R.C. 2945.06 and Crim.R.

11(C)(3) do not apply to the capital specifications contained in R.C. 2929.04(A).

{¶ 66} The state also contends that if this court interprets Crim.R. 11(C)(3)

“to require an examination of witnesses as to a capital specification, it would be

unconstitutional” under Article IV, Section 5(B) of the Ohio Constitution. Finally,

the state contends that Ketterer should be overruled to the extent that it extended to

capital specifications the syllabus law of State v. Green, 81 Ohio St.3d 100, 104,

689 N.E.2d 556 (1998), which held that “[w]hen a defendant pleads guilty to

aggravated murder in a capital case, a three-judge panel is required to examine

witnesses and to hear any other evidence properly presented by the prosecution in

order to make a Crim.R. 11 determination as to the guilt of the defendant.” We

reject all of the state’s arguments in this vein and decline to overrule Ketterer.

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{¶ 67} The state relies heavily on our decision in State v. Ford, 128 Ohio

St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, to support its argument. Ford involved

the question whether a firearm specification could be an allied offense of similar

import under R.C. 2941.25 and therefore capable of being merged with the

predicate offense. Id. at ¶ 1. Answering that question in the negative, we held that

“[t]he criminal offense of discharging a firearm at or into a habitation as defined in

R.C. 2923.161 and a firearm specification as defined in R.C. 2941.145 are not allied

offenses of similar import as defined in R.C. 2941.25, because a firearm

specification is a penalty enhancement, not a criminal offense.” Id. at paragraph

one of the syllabus.

{¶ 68} The state focuses on language in Ford indicating that the firearm

specification is “not a separate criminal offense” because it is “merely a sentencing

provision that requires an enhanced penalty upon certain findings.” Id. at ¶ 16-17.

The state concludes that because the aggravating circumstances enumerated in R.C.

2929.04(A) are contingent upon proof of the predicate offense of aggravated

murder, “it becomes plain that, when R.C. 2945.06 refers to having an examination

of witnesses to ‘determine whether the accused is guilty of aggravated murder or

some other offense,’ the provision is directed solely toward proof of the ‘offense,’

i.e., aggravated murder, not toward the accompanying specification(s).” We

disagree.

{¶ 69} First, Ford was not a capital case; thus, in that opinion, we did not

address whether a capital specification must be supported by legally sufficient

evidence. More importantly, R.C. 2929.04(A) states, “Imposition of the death

penalty for aggravated murder is precluded unless one or more of the following is

specified in the indictment or count in the indictment pursuant to section 2941.14

of the Revised Code and proved beyond a reasonable doubt.” The firearm-

specification statute at issue in Ford contains no similar language requiring that it

be proven beyond a reasonable doubt. Compare R.C. 2941.145.

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{¶ 70} “We have consistently required strict compliance with Ohio statutes

when reviewing the procedures in capital cases.” Filiaggi, 86 Ohio St.3d at 240,

714 N.E.2d 867. R.C. 2929.04(A) unambiguously states that the capital

specifications must be proven beyond a reasonable doubt. And R.C. 2945.06

provides, “The court shall follow the procedures contained in sections 2929.03 and

2929.04 of the Revised Code in all cases in which the accused is charged with an

offense punishable by death.” Accordingly, when read together, R.C. 2945.06 and

R.C. 2929.04(A) mandate that the offense of aggravated murder, including any

attached capital specifications, must be proven beyond a reasonable doubt.

{¶ 71} We also reject the state’s suggestion that Crim.R. 11(C)(3) would be

unconstitutional if “interpreted to require an examination of witnesses.” The state’s

argument hinges on its assertion that Crim.R. 11(C)(3) contains no “requirement

that independent proof be provided in support of the specifications” and that

requiring sufficient proof to support the capital specifications would “be an

improper substantive expansion of [Crim.R. 11(C)(3)] beyond what the statutory

law provides.” In its view, requiring the state to provide evidence to support the

finding of guilt on a capital specification where a defendant enters a guilty plea

would equate to giving Crim.R. 11 “substantive effect” in violation of Article IV,

Section 5(B) of the Ohio Constitution. We disagree.

{¶ 72} The interplay between procedural rules and the provisions of the

Revised Code that apply to capital cases makes clear that when a defendant pleads

guilty to an indictment containing capital specifications, Crim.R. 11(C)(3), R.C.

2945.06, and R.C. 2929.04 work together to require sufficient proof of the offense

of aggravated murder as well as the capital specifications attached to that offense.

R.C. 2929.04(A) specifically requires that capital specifications be proven beyond

a reasonable doubt, and R.C. 2945.06 directs trial courts to “follow the procedures

contained in sections 2929.03 and 2929.04 of the Revised Code in all cases in which

the accused is charged with an offense punishable by death.” Accordingly, R.C.

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2945.06 and R.C. 2929.04(A) together prescribe the procedures required when a

defendant pleads guilty or no contest to a capital indictment. And this court has

specifically held that there is “no conflict in the procedural requirements of Crim.R.

11 and R.C. 2945.06.” Green, 81 Ohio St.3d at 104, 689 N.E.2d 556. Accordingly,

we hold that construing Crim.R. 11(C)(3) and R.C. 2945.06 and 2929.04(A)

together is appropriate and does not result in any conflict.

{¶ 73} Thus, in a capital case, the aggravating circumstances codified in

R.C. 2929.04(A) require the production of evidence sufficient to prove their

existence beyond a reasonable doubt. We reject the state’s argument that it had no

duty to prove the capital specifications due to Montgomery’s guilty plea.

2. Applicable Legal Standards

{¶ 74} A challenge to the sufficiency of the evidence supporting a

conviction requires that we consider “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. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable

minds could not reach the conclusion reached by the trier-of-fact.’ ” Ketterer, 111

Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 94, quoting State v. Dennis,

79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).

{¶ 75} In contrast, a manifest-weight challenge “concerns ‘the inclination

of the greater amount of credible evidence * * * to support one side of the issue

rather than the other.’ ” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990).

A manifest-weight challenge requires us to consider the entire record, including the

credibility of the witnesses, the weight of the evidence, and any reasonable

inferences and determine whether “ ‘the [panel] clearly lost its way and created

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such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983); accord R.C. 2953.02.

3. Analysis

{¶ 76} Montgomery argues that the evidence was legally insufficient to

support his guilt on the escaping-detection specification because the state

“presented no evidence that the death of Tia occurred first in time or that Tahlia’s

death was a means to escape detection, apprehension, trial, or punishment.” The

state counters by arguing, first, that the language of the escaping-detection

specification in the indictment alleged only that Montgomery killed Tahlia to

escape detection for “murder,” generally; in other words, the specification’s

language did not require proof that he killed Tahlia to escape detection for Tia’s

murder. The state also argues that “nothing in the specification required that the

State prove that Tia’s (or Tyron’s) murder preceded the killing of Tahlia.”

{¶ 77} The evidence adduced at the plea hearing did not directly establish

the order in which Montgomery murdered the three victims. However, we have

held that “where the accused attempts to kill the only witness to his commission of

a crime, there exists sufficient circumstantial evidence that the act was undertaken

for the purpose of avoiding detection.” (Emphasis added.) State v. Wiles, 59 Ohio

St.3d 71, 85, 571 N.E.2d 97 (1991). Thus, because Montgomery murdered all three

individuals present in the apartment, we find that any rational trier of fact could

reasonably conclude that he murdered Tahlia for the purpose of escaping detection

for the other murders.

{¶ 78} In conclusion, viewing the evidence in the light most favorable to

the state, we find that there was sufficient evidence to convict Montgomery of

murdering Tahlia for the purpose of escaping detection for either of the other two

murders.

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{¶ 79} We also reject Montgomery’s claim that his conviction for this

specification was against the manifest weight of the evidence. Montgomery

presented no evidence during the plea hearing and declined to cross-examine

Detective Croom. A review of the entire record reveals no inconsistencies or other

conflicts in the evidence that indicate to us a lack of credibility of the sole witness.

Accordingly, Montgomery has not shown that “a miscarriage of justice” occurred

or that the panel “lost its way” when it found him guilty of the R.C. 2929.04(A)(3)

specification attached to Counts 2 and 3.

{¶ 80} We reject proposition of law No. 1.

C. Ineffective Assistance of Counsel

{¶ 81} In proposition of law No. 3, Montgomery argues that defense

counsel provided ineffective assistance during the plea and mitigation hearings. He

further contends that the “cumulative effect” of counsel’s errors and omissions

resulted in the denial of his Sixth Amendment right to the effective assistance of

counsel.

{¶ 82} To assess Montgomery’s ineffective-assistance claim, we must

engage in a two-part inquiry. Montgomery must show both that his counsel

performed deficiently during the trial-court proceedings and that counsel’s

deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With regard to the performance prong,

he must show that counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 688. To show prejudice, he must prove that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. The prejudice

inquiry, thus, focuses not only on outcome determination, but also on “whether the

result of the proceeding was fundamentally unfair or unreliable.” Lockhart v.

Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

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1. Failure to Object to Inadmissible Testimony

{¶ 83} Montgomery initially contends that defense counsel provided

ineffective representation when they failed to object to portions of Detective

Croom’s testimony on hearsay and confrontation grounds.

{¶ 84} Montgomery’s argument must be evaluated in the context of R.C.

2945.06, which requires a three-judge panel to conduct an evidentiary hearing to

establish a defendant’s guilt beyond a reasonable doubt when a defendant pleads

guilty to capital murder. We have interpreted R.C. 2945.06 to require “a three-

judge panel * * * to examine witnesses and to hear any other evidence properly

presented by the prosecution in order to make a Crim.R. 11 determination as to the

guilt of the defendant.” Green, 81 Ohio St.3d at 104-105, 689 N.E.2d 556.

{¶ 85} During the plea hearing, defense counsel objected to every

photograph as gruesome and cumulative, but specifically informed the court that

they did not object to the three autopsy reports. Defense counsel did not object to

Croom’s testimony about the autopsy reports or to his testimony about what

witnesses said during the investigation.

{¶ 86} A defendant alleging ineffective assistance of counsel must “identify

the acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052,

80 L.Ed.2d 674. Montgomery specifically challenges, on both confrontation

and hearsay grounds, counsel’s failure to object to Croom’s testimony about

“conversations with Fred Taylor” and “statements from family members who were

concerned that Tia had not arrived as expected on Thanksgiving and that her car

was parked in an unfamiliar location,” as well as Croom’s testimony about Ms.

Battle’s statements regarding what she witnessed on Thanksgiving evening. He

also argues that defense counsel were ineffective for failing to object on

confrontation and hearsay grounds to Croom’s testimony about the autopsies.

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a. Testimony about Witness and Family-Member Statements

{¶ 87} Evid.R. 801(C) defines hearsay as “a statement, other than one made

by the declarant while testifying at the * * * hearing, offered in evidence to prove

the truth of the matter asserted.” Evid.R. 802 generally prohibits the introduction

of hearsay unless the evidence falls under a specific exception to the hearsay

prohibition. And only testimonial hearsay implicates the Confrontation Clause,

which provides a criminal defendant with the right to be confronted with any

witness against him. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165

L.Ed.2d 224 (2006). “[T]estimonial statements are those made for ‘a primary

purpose of creating an out-of-court substitute for trial testimony.’ ” State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 40, quoting

Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).

{¶ 88} However, a law enforcement officer can testify about a declarant’s

out-of-court statement for the nonhearsay purpose of explaining his or her next

investigative step. State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401

(1980). Testimony offered to explain police conduct is admissible as nonhearsay

only if it satisfies three criteria: (1) “the conduct to be explained [is] relevant,

equivocal, and contemporaneous with the statements,” (2) the probative value of

the statements is not substantially outweighed by the danger of unfair prejudice,

and (3) “the statements [do not] connect the accused with the crime charged.” State

v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. If these

conditions are met, the testimony does not implicate the Confrontation Clause. See

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),

fn. 9.

{¶ 89} Croom’s testimony about Tia’s family members’ and coworkers’

concern about her absence was not inadmissible hearsay, and defense counsel were

not ineffective for failing to object. Croom offered the statements to explain how

police came to investigate the case. Croom’s testimony regarding what Tia’s family

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told another detective about the location of Tia’s parked car was also offered to

describe how officers found Tia’s car. This testimony was relevant, equivocal, and

did not identify Montgomery as the perpetrator, and the danger of unfair prejudice

did not substantially outweigh the probative value of this testimony. Accordingly,

any objection by defense counsel to this testimony would not have been sustained,

and counsel were not ineffective for failing to object.

{¶ 90} Croom’s testimony about what the witness identified as Ms. Battle

told officers (that she saw a man exit Tia’s vehicle on Thanksgiving evening)

arguably violated Ricks because it went beyond the nonhearsay purpose of

explaining how officers came to locate Tia’s car. Ms. Battle’s statements provided

officers with an evidentiary link to Montgomery as the perpetrator, and she offered

those statements in the course of a police canvass designed to elicit information “to

establish or prove past events potentially relevant to later criminal prosecution,”

Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224. However, because Ms.

Battle’s statements were offered in a proceeding before a three-judge panel, any

error in admitting Ms. Battle’s statements was harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The evidence of Montgomery’s guilt was overwhelming, and we apply the

presumption that the three-judge panel knew the law and considered only

competent, relevant evidence in its deliberations. See State v. Davis, 63 Ohio St.3d

44, 48, 584 N.E.2d 1192 (1992) (“Judges, unlike juries, are presumed to know the

law. Judges are trained and expected to disregard any extraneous influences in

deliberations”). Accordingly, we conclude that defense counsel were not

ineffective for failing to object to Croom’s testimony about what Ms. Battle said to

officers during the investigation.

{¶ 91} Croom’s testimony regarding Taylor’s statements about his

relationship to Tia and Tia’s activities the night before her murder was arguably

offered to explain the subsequent investigative steps taken in this case. Taylor’s

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January Term, 2016

statements provided police with information about Tia’s last known whereabouts

and allowed police to investigate Taylor’s role, if any, in the homicides. This

testimony established that Taylor was not a suspect, and “a court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶ 92} Taylor’s statements did not inculpate Montgomery and were not

prejudicial to him. Any objection by defense counsel to this testimony would likely

have been overruled. Therefore, counsel’s decision not to object was reasonable

trial strategy.

b. Testimony about the Autopsy Reports

{¶ 93} Montgomery also cannot establish ineffective assistance stemming

from counsel’s failure to object to the autopsy reports or to Croom’s testimony

about them. First, defense counsel’s agreement to the admission of the three

autopsy reports in this case was reasonable in light of this court’s decision, four

years before Montgomery’s plea hearing, that “autopsy records are admissible as

nontestimonial business records.” State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-

4571, 853 N.E.2d 621, ¶ 88; accord Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,

9 N.E.3d 930, at ¶ 59 (“although autopsy reports are sometimes relevant in criminal

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

prosecutorial purpose”).

{¶ 94} Second, counsel’s failure to object to Croom’s testimony about the

contents of the autopsy reports did not fall below the objective standard of

reasonableness applicable to ineffective-assistance claims. Montgomery does not

dispute any of the coroner’s findings or conclusions. And, as previously mentioned,

the stipulation to admit the autopsy reports themselves occurred prior to Croom’s

testimony. Counsel could reasonably have determined that having Croom testify

summarily about the autopsy reports would not prejudice Montgomery, because the

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panel would be exposed to less detail about how each victim died than it would

have been had Dr. An testified. See State v. Skatzes, 104 Ohio St.3d 195, 2004-

Ohio-6391, 819 N.E.2d 215, ¶ 196 (counsel could have reasonably concluded that

the defendant had nothing to gain from having the testimony that was given by a

police “summary witness” be instead “presented by several witnesses rather than

one”).

{¶ 95} Montgomery also fails to carry his burden on the issue of prejudice.

He does not allege any specific prejudice that befell him as a result of counsel’s

alleged ineffectiveness, contending merely that Croom’s testimony about the

autopsy reports “was in violation of Crawford * * * and trial counsel were

ineffective for failing to object.” Montgomery’s argument is conclusory, and he

has not even attempted to show prejudice under Strickland.

2. Failure to Seek a Plea Agreement for a Sentence other than Death

{¶ 96} Montgomery also argues that defense counsel were ineffective for

advising him to plead guilty to the indictment without securing an agreement from

the state not to pursue the death penalty. In response, the state asserts that the record

fails to demonstrate whether any plea negotiations occurred and what defense

counsel’s advice to Montgomery was.

{¶ 97} Initially, Montgomery contends that “[t]he United States Supreme

Court has determined that the [American Bar Association (“ABA”)] Guidelines [for

the Appointment and Performance of Counsel in Death Penalty Cases] provide the

standards to be used in evaluating counsel’s effectiveness in a capital case.” He

notes that the ABA Guidelines caution that “[i]f no written guarantee can be

obtained that death will not be imposed following a plea of guilty, counsel should

be extremely reluctant to participate in a waiver of the client’s trial rights.” See

ABA, Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases Section 10.9.2, Commentary (Rev.Ed. 2003), reprinted in 31

Hofstra L.Rev. 913, 1045 (2003).

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{¶ 98} The United States Supreme Court has “explicitly approved” using

the ABA Guidelines “on attorney performance in effect at the time of a defendant’s

trial as ‘guides to determining what is reasonable’ performance by counsel.”

Hodges v. Colson, 727 F.3d 517, 534-535 (6th Cir.2013), quoting Padilla v.

Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The court

has also clarified that “ ‘[ABA] standards and the like’ are ‘only guides’ to what

reasonableness means, not its definition.” Bobby v. Van Hook, 558 U.S. 4, 8, 130

S.Ct. 13, 175 L.Ed.2d 255 (2009), quoting Strickland, 466 U.S. at 688, 104 S.Ct.

2052, 80 L.Ed.2d 674.

{¶ 99} As to the application of those guidelines here, the record before us

does not disclose whether Montgomery was offered a plea deal at any stage of the

litigation. Defense counsel informed the court early in the proceedings that “the

path that the case has taken already—the Court is aware that the intention is to enter

[a] guilty plea and simply address the mitigation phase on this except for the facts

* * *.” But the record does not indicate whether defense counsel attempted to

negotiate a plea deal with the state or whether plea negotiations ever occurred.

Further, Montgomery’s assertion that defense counsel advised him to plead guilty

is not supported by the record. As noted previously, Montgomery affirmed in open

court that, prior to entering his plea, defense counsel discussed with him the options

between trying his case to a jury or entering a guilty plea to a panel of judges, and

that pleading guilty was his own voluntary choice.

{¶ 100} Even if Montgomery could establish that defense counsel explicitly

advised him to enter a guilty plea without a plea agreement, pleading guilty to

capital charges without a guaranteed life sentence is not per se ineffective

assistance. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 82,

85. Per se ineffective assistance, a “narrow exception to Strickland’s holding,”

Florida v. Nixon, 543 U.S. 175, 190, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), has

been recognized only where “the attorney’s failure [is] complete * * * [and]

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‘entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ ”

(Emphasis sic.) Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914

(2002), quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80

L.Ed.2d 657 (1984).

{¶ 101} Montgomery’s counsel did not fail to subject the state’s case to

adversarial testing by supporting their client’s decision to plead guilty. Rather,

counsel were “faced with the formidable task of defending a client who had

committed a horribly brutal and senseless crime,” Bell at 699, in murdering three

people, including two young children. Indeed, defense counsel could have

“reasonably believed that a guilty plea could minimize the effect of gruesome facts

and a brutal murder, especially before a three-judge panel.” Ketterer at ¶ 86.

{¶ 102} During the plea hearing, defense counsel routinely objected to the

state’s introduction of hundreds of photographs depicting the scene and the victims.

Although the panel largely overruled defense counsel’s objections, this

demonstrates that, despite the guilty plea, defense counsel engaged in significant

adversarial testing of the state’s case. In addition, defense counsel mounted a

mitigation case that included testimony not only from Montgomery’s family

members but also from two Franklin County Children’s Services employees who

had interacted with him when he was a teenager. And by pleading guilty,

Montgomery “obtained the benefit of substantial mitigation evidence, namely

remorse and a plea of guilty.” Id., citing State v. Ashworth, 85 Ohio St.3d 56, 72,

706 N.E.2d 1231 (1999) (“guilty pleas are traditionally accorded substantial weight

in imposing a sentence”).

{¶ 103} Finally, there was significant evidence of Montgomery’s guilt:

forensic evidence linked him to the murder weapon, to the victim’s vehicle, and to

an open bottle of bleach in the apartment. He had multiple cuts on the palms of his

hands. And there was testimony that Montgomery and Tia had had a turbulent past

and that at the time of her murder, she was involved with another man.

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{¶ 104} “[A] court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Based on the record

as a whole, we cannot conclude that defense counsel pursued an unreasonable

strategy by focusing on mitigation. See Nixon, 543 U.S. at 191, 125 S.Ct. 551, 160

L.Ed.2d 565 (where the evidence of guilt is strong, defense counsel “may

reasonably decide to focus on the trial’s penalty phase, at which time counsel’s

mission is to persuade the trier that his client’s life should be spared”). Moreover,

Montgomery has not pointed to any evidence in the record to demonstrate that his

decision to plead guilty was based on deficient advice by defense counsel or any

evidence to show whether plea negotiations were ever pursued. Accordingly,

Montgomery’s argument under this branch of his ineffective-assistance claim is

speculative and does not support a finding of ineffective assistance of counsel.

3. Failure to Seek Removal of a Panel Member

{¶ 105} Next, Montgomery complains that his counsel provided ineffective

assistance when they failed to object to the continued participation of one of the

panel members who allegedly appeared to be sleeping during the proceedings.

Montgomery contends that his counsel should have requested an evidentiary

hearing to question the individuals who made the allegations.

{¶ 106} The issue was first brought to the panel’s attention after the

conclusion of the mitigation hearing. In an inter partes hearing for which defense

counsel waived Montgomery’s right to be present, defense counsel stated that after

the close of proceedings the previous week, “people both in the audience as well as

members of the media” had informed them that it “appeared that Judge Sheward

may have been asleep during part of the proceedings.” Defense counsel further

informed the panel:

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[T]he people from the media—this is actually where the problem

lies why I think we need to have a record of this—indicate there’s

some video footage that shows him with his eyes closed. I will say

that I have been in [the judge’s] courtroom before during

proceedings when he is clearly paying attention at that phase.

But since it was brought to our attention I feel I need to ask

the Presiding Judge to inquire as I would with a juror normally. And

you know there’s no disrespect but other people are already talking

about it, it creates a problem for us down the road. And I think we

want the record to try to remain clear.

{¶ 107} Before the presiding judge could inquire, Judge Sheward stated:

Well, I do all the time, and I’m sure I did in this case, many

times sit with my head down concentrating on what’s being said. I

think the important thing is to listen, not necessarily to watch. But

I can only assure you that I heard every word that was said.

And but that being said, I don’t question that, you know, at

some times when I’m concentrating on things my eyes are closed or

my head may be down ruminating on what’s going on. But by no

means was I asleep. Jesus, I find that, I don’t know, surprising or

whatever. But no. I don’t know what else to say.

{¶ 108} When asked by the presiding judge, defense counsel admitted that

the allegations were not specific in terms of “how long or how significant it was.”

Defense counsel then stated, “[F]rankly, I’m more than satisfied with the answer.

I just think with other people bringing it to our attention if we didn’t ask for the

inquiry to be made, I know exactly where this would be going.”

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{¶ 109} After the third panel member declined an opportunity to further

inquire, defense counsel informed the panel that “based on [counsel’s] experiences

* * * that happens to be a habit of [the judge’s]. * * * Not sleeping, closing his eyes.

And I do know because he responds to things all the time. And when he’s the only

judge and there’s an objection raised, he is there to respond to it.” At this point,

defense counsel reaffirmed that they were “satisfied with the response.”

{¶ 110} Montgomery argues that it was unreasonable for his counsel to

raise the issue regarding Judge Sheward but then not adequately explore it by

requesting a hearing to develop the witness testimony and play the video footage.

Viewing the video footage may have assisted defense counsel and the panel in

determining whether the judge actually did close his eyes or was asleep and if so,

for how long, at what stage of the proceedings this conduct occurred, and whether

it appeared that the judge missed large or significant portions of testimony. See

State v. Sanders, 92 Ohio St.3d 245, 253, 750 N.E.2d 90 (2001) (no plain error in

failing to remove sleeping juror where no evidence that “the juror missed large or

critical portions of the trial,” and “trial judge was watching the situation, and he

admonished the jury to be alert”). On the other hand, the video may have shown

the judge’s eyes closed, but as one court considering this issue noted, “that a

person’s eyes are closed does not necessarily mean that he or she is asleep.” People

v. Degondea, 3 A.D.3d 148, 163, 769 N.Y.S.2d 490 (2003). Moreover, when asked,

Judge Sheward maintained that he had not fallen asleep during the proceedings and

that he had “heard every word that was said,” even if at times, when “concentrating

on things,” his eyes were closed or his head was down.

{¶ 111} Even assuming defense counsel’s failure to request an opportunity

to view the video footage qualifies as deficient performance, Montgomery’s claim

still fails in the absence of a reasonable probability that the result of the requested

hearing would have changed the outcome of his case. See Strickland, 466 U.S. at

694, 104 S.Ct. 2052, 80 L.Ed.2d 674. Montgomery contends that had the video

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footage or witness testimony proved that the judge had fallen asleep during the

proceedings, it would have resulted in that judge’s removal from the panel.

However, Montgomery cites no authority for this proposition.

{¶ 112} To the contrary, if a sleeping juror has not missed “large or critical

portions” of the proceedings, no prejudice results from that juror’s remaining on

the jury. Sanders at 253. Accordingly, Montgomery’s claim that his counsel’s

continued objection would have resulted in the judge’s removal is speculative and

does not demonstrate prejudice under Strickland.

{¶ 113} We reject this aspect of his ineffective-assistance claim.

4. Failure to Present Expert Testimony during the Mitigation Hearing

{¶ 114} Montgomery further contends that defense counsel were ineffective

in failing to call a psychologist and a “sex-abuse expert” as witnesses during the

mitigation hearing. While acknowledging defense counsel’s pretrial retention of

both Dr. Bob Stinson, a forensic psychologist, and Dr. Howard Fradkin, a

childhood-sexual-abuse expert, Montgomery maintains that “there is no evidence

that trial counsel provided Dr. Fradkin with any records.” According to

Montgomery, defense counsel’s decision not to call Drs. Stinson and Fradkin as

mitigation witnesses was not a strategic decision made after an adequate

investigation.

{¶ 115} “ ‘Defense counsel has a duty to investigate the circumstances of

his client’s case and explore all matters relevant to the merits of the case and the

penalty, including the defendant’s background, education, employment record,

mental and emotional stability, and family relationships.’ ” State v. Pickens, 141

Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 219, quoting Goodwin v.

Johnson, 632 F.3d 301, 318 (6th Cir.2011). And while “strategic choices made

after thorough investigation of law and facts * * * are virtually unchallengeable[,]

strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the

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limitations on investigation.” Strickland, 466 U.S. at 690-691, 104 S.Ct. 2052, 80

L.Ed.2d 674. A reviewing court assessing the reasonableness of defense counsel’s

investigation “must consider not only the quantum of evidence already known to

counsel, but also whether the known evidence would lead a reasonable attorney to

investigate further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156

L.Ed.2d 471 (2003).

{¶ 116} Contrary to Montgomery’s assertion, the record demonstrates that

defense counsel conducted an extensive mitigation investigation. The trial court

granted defense requests for funding––and, later, multiple requests for additional

funding––for a mitigation expert, a psychologist, and an investigator on January

28, 2011, more than a year before Montgomery’s plea hearing. And at a hearing a

few months later, defense counsel informed the court:

Dr. Stinson has been our psychiatrist or psychologist since

the beginning of this case; and Kelly Heiby—who has been hired as

a mitigation expert from the State Public Defender’s Office since

the beginning of this case—has been working diligently, have stayed

in touch with us, have given us mounds and mounds of paperwork

and records, have visited Caron regularly, and dealt with his family

regularly, as we have also on many of those visits.

Later, defense counsel secured a continuance to allow Dr. Fradkin to personally

meet with Montgomery.

{¶ 117} At the mitigation hearing, defense counsel called seven witnesses,

including Montgomery’s two adult sons, his younger brother, a first cousin, the first

cousin’s wife, and two former Franklin County Children’s Services (“FCCS”)

employees who worked with Montgomery when he was a teenager. The defense

mitigation strategy focused on Montgomery’s chaotic and unstable childhood,

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including inadequate parental support, sexual abuse, and placement into FCCS and

Department of Rehabilitation and Corrections institutions. The defense also

established that many of Montgomery’s nonparental family members continue to

love, support, and care for him. Montgomery also presented an unsworn statement

in which he emphasized remorse for his hurtful and selfish murderous actions, his

desire to continue to care for his other children, his lack of prior violence towards

girlfriends, and his behavioral trouble as a young boy. He apologized to the

Hendricks family and specifically to Tia’s mother for taking her daughter and

grandchildren.

{¶ 118} In support of his argument that counsel were ineffective for failing

to present the testimony of Drs. Stinson and Fradkin at the mitigation hearing,

Montgomery contends that there was an “overwhelming amount of psychological

mitigation testimony that could have been presented.” Montgomery asserts that

studies indicate that a child who experiences abuse and neglect has a significantly

higher chance of committing violent crimes as a juvenile and as an adult and that

childhood abuse has been found to cause mental illness throughout the individual’s

life. Montgomery argues that “Dr. Fradkin’s bill reflects that he did not review any

records, and that he had a single interview with Montgomery that lasted

approximately one hour.”

{¶ 119} It is true that while defense counsel received funding for and

retained both a forensic psychologist and an expert in childhood sexual abuse, they

did not present any expert testimony or expert reports in mitigation. The record

contains itemized bills provided to defense counsel from both Drs. Stinson and

Fradkin, showing that each expert met with Montgomery and prepared a report.

Additionally, the experts’ bills show that they communicated with each other

during the pretrial stage. Dr. Stinson’s bills reveal that he spent nearly 16 hours

reviewing records, met with Montgomery for evaluation five times before the trial

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date, and met with Montgomery’s defense team multiple times. Dr. Fradkin’s bill

does not reflect any charges for record review.

{¶ 120} A trial attorney’s decision “to forgo the presentation of additional

mitigating evidence does not itself constitute proof of ineffective assistance of

counsel.” State v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997). We will

not “ ‘infer a defense failure to investigate from a silent record.’ ” State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 65, quoting Were, 118 Ohio

St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244; see also State v. Dean, 146

Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 288 (defense counsel’s decision

not to present testimony of retained experts in mitigation was reasonable trial

strategy because “[n]othing in the record shows that this decision was the result of

an inadequate investigation”).

{¶ 121} Moreover, Montgomery’s argument that defense experts in

psychology and child sexual abuse would have tipped the scales in favor of a life

sentence actually contradicts the record evidence demonstrating his competence

and in particular, his decision to waive his right to a mental examination prior to

sentencing. Thus, Montgomery has not demonstrated that counsel were ineffective

in failing to use experts in mitigation.

5. Failure to Object to State’s Cross-Examination of Mitigation Witness and

Failure to Prepare Mitigation Witnesses

{¶ 122} Montgomery also faults defense counsel for failing to object to the

state’s use of Montgomery’s FCCS and Starr Commonwealth records during its

cross-examination of defense witnesses Roberta Thomas and Timothy Brown. He

also contends that defense counsel failed to adequately prepare Thomas and Brown

for testifying at the mitigation hearing.

{¶ 123} Former FCCS employees Thomas and Brown testified during

Montgomery’s mitigation hearing. Thomas and Brown, FCCS youth leaders in the

late 1980s, had become acquainted with Montgomery when he lived at FCCS’s

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Franklin Village beginning in 1986. Both witnesses had positive views of

Montgomery and felt that his youthful behavioral problems were caused in large

part by his unsupportive family structure.

{¶ 124} On cross-examination, the state used Montgomery’s FCCS records

and records regarding Montgomery’s therapy sessions at the Willson Family and

Child Guidance Clinic to undermine the witnesses’ recollection of Montgomery’s

behavior. Neither witness had any knowledge of these records and were unable to

corroborate most of the information the assistant prosecutor read from the records.

The panel sustained a defense objection to the state’s attempt to get Brown to

corroborate certain information in the records, because Brown had no knowledge

of the records and did not create them.

{¶ 125} When the state sought to admit the FCCS records into evidence

during its case in mitigation, defense counsel initially objected. However, defense

counsel later agreed with the state to submit the records as joint exhibits.

{¶ 126} This aspect of Montgomery’s ineffective-assistance claim fails for

several reasons. First, the record demonstrates that defense counsel did object to

the state using the records during Brown’s testimony. Moreover, cross-

examination “shall be permitted on all relevant matters,” Evid.R. 611(B), and “the

scope of cross-examination is within the sound discretion of the trial court,” State

v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 99. Because the

state was using the records only to test, by cross-examination, the witnesses’

recollections of Montgomery’s behavior at FCCS’s Franklin Village, a defense

objection most likely would not have been sustained. Finally, counsel’s decisions

to withhold further objection and to submit the records as joint exhibits “falls within

the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,

104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶ 127} Montgomery’s argument that counsel failed to adequately prepare

Thomas and Brown for cross-examination also fails. The record demonstrates that

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defense counsel spoke to both witnesses prior to their testimony and met with

Brown at least once. Beyond those facts, the record does not show the extent of

defense counsel’s witness preparation. In addition, even if the record did support

Montgomery’s claim that counsel failed to prepare Thomas and Brown, he has not

demonstrated prejudice as a result of counsel’s allegedly inadequate witness

preparation.

6. Presenting Antagonistic Information to Three-Judge Panel

{¶ 128} Montgomery challenges defense counsel’s decision to inform the

panel about threatening phone calls that they received from two of Montgomery’s

aunts after the mitigation hearing. He argues that the substance of the aunts’ calls

“diminished” the mitigation evidence and that had counsel not brought them to the

panel’s attention, the “result of the mitigation phase would have been a life

sentence.”

{¶ 129} The day after the mitigation hearing, the panel convened with

counsel1 to discuss the threatening nature of the telephone calls. Defense counsel

explained that she first spoke to one of Montgomery’s aunts who expressed

“concern[ ] about things that had been said about her sister [Montgomery’s mother,

Carol] and demanded in a threatening way that [defense counsel] clear her sister’s

name and said that the family wanted [defense counsel] off of the case

immediately.” At the panel’s request, defense counsel played the voicemail

message left by his other aunt, Linda Montgomery. In the message, the caller

disputed some of the mitigation evidence and stated, “I don’t appreciate how y’all

trying to slander my sister’s name. My sister did 20 years of service in the Army;

25 years as a social worker. * * * You trying to save this life. [Montgomery’s] life

don’t need to be saved if it’s going to hurt the family. * * * Now, get my sister’s

name cleared, and I mean that.”

1

Defense counsel waived Montgomery’s right to be present for this hearing.

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{¶ 130} Defense counsel affirmed that they played the message for

Montgomery and told him about the other call but that “he indicated that he still

wants us to remain as his attorneys.” The presiding judge pointed out that “one of

the significant things, of course, is that the case, for all practical purposes, [has]

concluded since we were deliberating, dealing with the sentence in this case.”

Defense counsel confirmed that they felt they could continue representing

Montgomery “uninfluenced by these phone calls.”

{¶ 131} Our scrutiny of counsel’s decision to inform the panel about the

telephone calls requires that we make “every effort * * * to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Defense counsel’s

decision to inform the panel about the telephone calls did not fall outside the wide

range of reasonable professional judgment. The callers were threatening and made

specific demands that counsel cease representing Montgomery. Because the court

had appointed counsel in this case, it seems reasonable that counsel would want to

inform the court of the incident and of Montgomery’s request that they remain his

counsel. While the caller did attempt to discredit significant portions of the defense

mitigation case, the caller was not under oath, and the evidentiary portion of the

mitigation hearing had concluded.

{¶ 132} Further, the information was presented to a three-judge panel,

“which was capable of drawing the correct conclusion” from this event. State v.

Frazier, 61 Ohio St.3d 247, 254, 574 N.E.2d 483 (1991). Montgomery has not

pointed to any place in the transcript or in the sentencing opinion where the panel

referred to that call, much less considered it in its deliberations. State v. White, 15

Ohio St.2d 146, 151, 239 N.E.2d 65 (1968) (“We indulge in the usual presumption

that in a bench trial in a criminal case the court considered only the relevant,

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material, and competent evidence in arriving at its judgment unless it affirmatively

appears to the contrary”).

{¶ 133} Montgomery has not shown that his counsel were ineffective in

informing the panel about the phone calls.

7. Cumulative Ineffective Assistance

{¶ 134} Finally, Montgomery contends that the “cumulative effect of

counsel’s errors and omissions violated [his] Sixth Amendment right to effective

counsel.” However, as demonstrated above, Montgomery has not shown that he

received ineffective assistance.

{¶ 135} In conclusion, Montgomery has not shown that he was denied his

right to the effective assistance of counsel, and we reject proposition of law No. 3.

D. Introduction of Graphic Photographs

{¶ 136} In proposition of law No. 5, Montgomery asserts that he was denied

due process of law and a fair trial when the panel admitted and considered gruesome

photographs “with no probative value” during the plea and mitigation hearings.

Montgomery argues that “[e]ven though the evidence in this case was heard by a

three-judge panel and a not a jury, the extensive use of these numerous, graphic

photographs nevertheless would have a strong emotional impact on the fact-

finders.”

{¶ 137} We apply a “stricter evidentiary standard for the introduction of

photographs” in capital cases than in other contexts. State v. Morales, 32 Ohio

St.3d 252, 257-258, 513 N.E.2d 267 (1987). Under this standard, gruesome

photographs are admissible only if the “probative value of each photograph * * *

outweigh[s] the danger of prejudice to the defendant and, additionally [is] not

* * * repetitive or cumulative in nature.” Id. at 258. “The trial court has broad

discretion in the admission of evidence, and unless it has clearly abused its

discretion and the defendant has been materially prejudiced thereby, an appellate

court should not disturb the decision of the trial court.” State v. Issa, 93 Ohio St.3d

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49, 64, 752 N.E.2d 904 (2001). And again, we presume that the panel

“ ‘ “considered only the relevant, material, and competent evidence in arriving at

its judgment unless it affirmatively appears to the contrary.” ’ ” State v. Jackson,

141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 199, quoting State v. Post,

32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987), quoting White, 15 Ohio St.2d at

151, 239 N.E.2d 65.

{¶ 138} Finally, because Montgomery pleaded guilty, “the admission of

gruesome crime-scene or autopsy photographs could not have affected the guilty

verdict.” Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 136.

Therefore, we will consider only the effect of the allegedly erroneously admitted

photographs upon the panel’s decision to impose the death penalty.

{¶ 139} At the start of the mitigation hearing, the panel overruled a defense

objection to the readmission of all of the evidence “deal[ing] with the aggravating

circumstances.” Notwithstanding Montgomery’s argument, the photographs

portray the nature and circumstances of the triple homicide by documenting the

location and position of the three bodies, blood stains throughout the scene of the

crime, blood stain evidence located in the victim’s vehicle, and other evidence

located at the scene. Moreover, the autopsy photographs illustrate the testimony

regarding the autopsy reports and demonstrate Montgomery’s specific intent to kill.

See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 109 (no

abuse of discretion in admission of gruesome photographs depicting specific

injuries to four-year-old arson victim).

{¶ 140} On balance, the photographs were relevant and illustrative of the

aggravating specifications, the cause of death as to each victim, the condition of the

murder scene, and Montgomery’s own injuries, which were probative of his

liability for the three deaths and probative “with regard to the showing of intent and

deliberation” on his part, Morales, 32 Ohio St.3d at 258, 513 N.E.2d 267.

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{¶ 141} Further, Montgomery has not rebutted the presumption that the

panel considered “ ‘only the relevant, material, and competent evidence in arriving

at its judgment.’ ” Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d

927, at ¶ 66, quoting White, 15 Ohio St.2d at 151, 239 N.E.2d 65. In contrast to his

assertion that “[t]hese gruesome images would have roused the fact-finders’

emotions during its [sic] sentencing deliberations,” the panel in its sentencing

opinion specifically stated that it “gave scant consideration to the photographs.” A

trial court may allow evidence presented in the guilt phase to be repeated in the

mitigation phase, and it was not improper for the court to readmit the photographs

for the mitigation phase in this case. See State v. Vrabel, 99 Ohio St.3d 184, 2003-

Ohio-3193, 790 N.E.2d 303, ¶ 73.

{¶ 142} Accordingly, we reject Montgomery’s fifth proposition of law.

E. Settled Issues

{¶ 143} Proposition of law No. 6 presents six constitutional arguments

regarding Ohio’s capital-punishment scheme that we have considered in numerous

other cases. We have previously rejected each of Montgomery’s challenges to

Ohio’s capital-punishment scheme. See, e.g., State v. Thompson, 141 Ohio St.3d

254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 279-280 (listing cases).

{¶ 144} Montgomery also argues that Ohio’s death-penalty statutes violate

international law and treaties. We have also held in prior cases that Ohio’s death-

penalty statutes do not violate international law and treaties and do not thereby

offend the Supremacy Clause. Id. at ¶ 279-280.

{¶ 145} Accordingly, we summarily reject proposition of law No. 6.

F. Cumulative Error

{¶ 146} In proposition of law No. 7, Montgomery argues that cumulative

error occurring during the proceedings requires this court to reverse his conviction

and grant him a new trial. We reject this proposition.

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{¶ 147} A conviction will be reversed for cumulative error only “when the

cumulative effect of errors in a trial deprives a defendant of a fair trial even though

each of the numerous instances of trial-court error does not individually constitute

cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971

N.E.2d 865, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256

(1987), paragraph two of the syllabus.

{¶ 148} Montgomery has not shown that any errors occurred during the plea

hearing or the mitigation phase of his capital case. Thus, he cannot show that there

was a cumulative effect of error in his case, and the cumulative-error doctrine does

not apply.

{¶ 149} Therefore, we reject proposition of law No. 7.

G. Sentencing Opinion

{¶ 150} In proposition of law No. 4, Montgomery argues that his death

sentences are void under the state and federal constitutions because the panel “did

not * * * weigh the aggravating circumstances for each count separately and make

a separate [sentencing] determination.”

{¶ 151} Montgomery was convicted of four counts of aggravated murder

and all capital specifications attached to those counts. In its sentencing opinion,

the panel indicated that it merged the two counts related to Tahlia (Counts 2 and 3)

and the two counts related to Tyron (Counts 4 and 5). Montgomery’s argument

hinges on the panel’s reference, in the sentencing opinion, to the “four” aggravating

circumstances that it “considered in the weighing process.” These “four”

aggravating circumstances included the R.C. 2929.04(A)(5) course-of-conduct

specification, the R.C. 2929.04(A)(9) killing-of-a-person-under-13 specification

(listed twice), and the R.C. 2929.04(A)(3) escaping-detection specification.

Montgomery also takes issue with the panel’s description of its weighing process:

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The Panel reviewed the mitigating factors, individually and

collectively, and discussed them at great length. After a complete

discussion, each member of the Panel presented an individual

review of the aggravating circumstances and the mitigating factors.

In essence, the Panel concluded that the mitigation evidence paled

in comparison to the aggravating circumstances. * * * As a result,

when the Panel voted after all discussion had been completed, each

judge gave a summary of his opinion as to the weighing process, and

each judge individually and independently concluded that in this

case, the aggravating circumstances outweighed the mitigating

factors beyond a reasonable doubt.

It is Montgomery’s contention that the panel’s erroneous account of “four”

aggravating circumstances combined with the description of the weighing process

“leads to the conclusion that the panel weighed all the aggravating circumstances

from both counts together against the mitigating factors.” We disagree.

{¶ 152} Looking at the sentencing opinion in isolation, as Montgomery has,

supports the conclusion that the panel failed to individually weigh the aggravating

circumstances applicable to each aggravated-murder count separately. These

statements seemingly violate our holding that “[w]hen a capital defendant is

convicted of more than one count of aggravated murder, the penalty for each

individual count must be assessed separately. Only the aggravating circumstances

related to a given count may be considered in assessing the penalty for that count.”

State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989), paragraph three of the

syllabus.

{¶ 153} However, the panel’s statements at a presentencing hearing held in

this case suggest that the panel did evaluate each count separately:

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[T]his Court finds that specifications in respective counts that

related to a course of conduct * * * contained in Counts Two, Three,

Four and Five merge for sentencing purposes. Since Counts Two

and Three and Counts Four and Five have already been found to

merge for sentencing purposes, this Court, therefore, had four

aggravating circumstances, as placed in their respective counts to

weigh against the mitigating factors presented by the defense.

(Emphasis added.) In addition, the panel signed individual verdict forms for each

victim. The verdict on Counts 2 and 3 states, “We * * * hereby find that the

Aggravating Circumstances as set forth in Counts Two and Three, merged,

outweigh the Mitigating Factors presented, beyond a reasonable doubt.” (Emphasis

added.) The same language appears in the panel’s verdict on Counts 4 and 5.

{¶ 154} Applying Cooey in a subsequent case, we found that an ambiguous

statement in a sentencing opinion as to the weighing of aggravating circumstances

was sufficiently clarified by reference to the verdict forms, which showed that the

panel had “made a specific finding that the aggravating circumstances present with

respect to that aggravated murder outweighed the mitigating factors.” (Emphasis

sic.) State v. Keene, 81 Ohio St.3d 646, 664, 693 N.E.2d 246 (1998). Applying

Keene, we conclude that the verdict forms in this case sufficiently clarify the

panel’s ambiguous statements in the sentencing opinion and, thus, that the panel’s

weighing did not conflate the aggravating circumstances applicable to Counts 2 and

3 with the aggravating circumstances applicable to Counts 4 and 5.

{¶ 155} Even if we were to find the panel’s sentencing opinion erroneous

under Cooey, we have previously held that “serious deficiencies in the trial panel’s

death penalty written opinion” can be “ ‘rectified by this court’s careful

independent reweighing.’ ” State v. Fox, 69 Ohio St.3d 183, 191, 631 N.E.2d 124

(1994), quoting State v. Lott, 51 Ohio St.3d 160, 170, 555 N.E.2d 293 (1990);

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accord State v. Mitts, 81 Ohio St.3d 223, 235, 690 N.E.2d 522 (1998) (holding that

independent reweighing could cure trial court’s failure to separately weigh the

aggravating circumstances in each count of aggravated murder, incorrect statement

that no evidence of statutory mitigating factors existed, improper merger of capital

specifications, and failure to explain why the aggravating circumstances

outweighed the mitigating factors).

H. Independent Sentence Evaluation

{¶ 156} Under R.C. 2929.05(A), this court must independently review

Montgomery’s death sentence. In conducting this review, we must determine

whether the evidence supports the panel’s finding of aggravating circumstances,

whether the aggravating circumstances outweigh the mitigating factors, and

whether Montgomery’s death sentence is appropriate and proportionate to those

affirmed in similar cases. Id.

1. Aggravating Circumstances

{¶ 157} The three-judge panel convicted Montgomery of three capital

specifications with regard to the aggravated murder of Tahlia and two capital

specifications related to the aggravated murder of Tyron. In particular, the panel

found that Montgomery murdered both children as “part of a course of conduct

involving the purposeful killing of or attempt to kill two or more persons by the

offender” under R.C. 2929.04(A)(5) and that Montgomery “purposefully caused

the death of another who was under thirteen years of age at the time of the

commission of the offense, and either the offender was the principal offender in the

commission of the offense or, if not the principal offender, committed the offense

with prior calculation and design” under R.C. 2929.04(A)(9). In addition, as to

Tahlia, the panel found that Montgomery committed the offense “for the purpose

of escaping detection, apprehension, trial, or punishment for another offense

committed by the offender” under R.C. 2929.04(A)(3).

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{¶ 158} The state produced sufficient evidence of all three individual

specifications, as applied respectively to the two victims.

a. Course of Conduct—R.C. 2929.04(A)(5)

{¶ 159} The murders of Tia,2 Tahlia, and Tyron were purposeful and part

of a single continuing course of conduct. Montgomery murdered all three victims

inside Tia’s apartment on November 26, 2010. Therefore, the murders were

directly linked in time and location. See State v. Sapp, 105 Ohio St.3d 104, 2004-

Ohio-7008, 822 N.E.2d 1239, syllabus, ¶ 52 (factors such as time, location, a

common scheme or a common psychological thread can establish the factual link

necessary to prove a course of conduct).

b. Murder of Person under the Age of Thirteen—R.C. 2929.04(A)(9)

{¶ 160} The state also presented evidence that at the time of their deaths,

Tahlia was nine years old and Tyron was two years old. Accordingly, we find that

the evidence was sufficient to support Montgomery’s conviction on the R.C.

2929.04(A)(9) specification attached to Counts 2 through 5.

c. Escaping Detection—R.C. 2929.04(A)(3)

{¶ 161} Finally, as we explained in our analysis of proposition of law No.

1, there was sufficient evidence to support Montgomery’s conviction for killing

Tahlia to escape detection, apprehension, trial or punishment for another offense—

namely, murder.

2. Mitigating Evidence

{¶ 162} For each murder, we must weigh the aforementioned aggravating

circumstances against any mitigating evidence about “the nature and circumstances

of the offense” and Montgomery’s “history, character, and background.” R.C.

2929.04(B); State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d

2

Montgomery was charged with the purposeful murder of Tia, in violation of R.C. 2903.02. This

was not indicted capitally, and thus is not an independent aggravating circumstance. However, Tia’s

murder is appropriately considered as evidence of the R.C. 2929.04(A) specification.

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1051, ¶ 193. In addition, we must consider the following statutory mitigating

factors: victim inducement; duress, coercion, or strong provocation; mental disease

or defect; youth; lack of significant criminal history; accomplice only; and any

other relevant factors. R.C. 2929.04(B)(1)-(7).

{¶ 163} During the mitigation hearing, the defense presented seven

witnesses. Montgomery also made an unsworn statement to the panel.

{¶ 164} Montgomery was 37 years old in 2012, when his mitigation hearing

took place. Multiple family members, including two adult sons and a younger

brother, testified that Montgomery had generally been a positive influence in their

lives and that they would continue to visit him in prison. However, both of

Montgomery’s sons who testified admitted that he had not lived with them for many

years.

{¶ 165} His younger cousin, Cyrill Montgomery, testified that he and

Montgomery were close when they were growing up. At one point when the two

were teenagers, Cyrill moved into the house of Montgomery’s mother, Carol

Montgomery. Cyrill testified that Carol drank “King Cobra” every day and that she

also “used drugs.” To Cyrill’s knowledge, Montgomery and his stepfather, Mike

Stovall, “didn’t really have a relationship.”

{¶ 166} Cyrill also testified that he and Montgomery “always had fun,” that

they “exercised a lot,” and “just had lots of fun,” when they were teenagers. In

Cyrill’s view, “there’s still some good that’s in [Montgomery],” and he told the

panel, “I’m praying for y’all that y’all able to make the correct choice. But I’m

asking that y’all find it in your heart to let my cousin live. * * * My condolences to

[Hendricks’s] family.”

{¶ 167} Cyrill’s wife, Tanika Montgomery, also testified on Montgomery’s

behalf. Tanika is a trained nurse who currently teaches at Mount Carmel College

of Nursing. Tanika described Montgomery’s family as “one that is [in] a cycle * * *

of poverty and drug use and verbal abuse. That’s what I witness when I’m around

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* * * their family. That’s what I’ve seen.” She admitted that she was somewhat

hesitant to testify because she still loves his family but that she “just [doesn’t] agree

with some of the practices that they have.” When asked to elaborate, she said, “The

cycle of nobody graduating from high school, people abusing drugs, cussing out

your children, letting your children run wild.”

{¶ 168} Tanika personally observed the adults in Carol’s house “drink[ing

and] smoking weed most of the time,” and stated that she has seen “people smoke

weed around their kids.” Tanika described Carol’s household as one with no

boundaries and said that, as a parent, Carol was “disengaged.” She further

explained that, in her view, an engaged parent is one who is “active” in the lives of

his or her children, who “go[es] to school meetings,” and who would “discipline

them if they do something.” In contrast, what Tanika witnessed in Montgomery’s

family were parents who did not make their children a priority in their lives, who

would “let them run around and just do whatever they want[ed] to do,” and who

instead of being engaged would “party and drink and cuss [the] kids out.”

{¶ 169} Tanika also testified that even knowing what Montgomery was

charged with, she still believes him to be a good person, that she has “never seen

him act out in anger,” that Montgomery “was kind of like more of the person that

was calming people down.” She told the panel that Montgomery had “played

games” with her own children and that he “always showed love towards children.”

She added that “by him living, he has to deal with the consequences of his actions.”

In conclusion, Tanika opined that if Montgomery lived, her children “can look at

[Montgomery] as an example for what not to do and he can always also influence

them positively by speaking into their lives.” She said that Montgomery “still has

hope. There’s still something that’s inside of him that’s worth living.”

{¶ 170} Roberta Thomas and Timothy Brown, former FCCS youth leaders,

testified that they contacted Montgomery’s attorneys when they heard about the

criminal charges he was facing.

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{¶ 171} Thomas worked for FCCS beginning in the late 1980s and became

acquainted with Montgomery when he was a resident of her cottage at Franklin

Village. In Thomas’s view, Montgomery was inappropriately placed into “Cottage

5,” which was for older boys, because Montgomery “was such a big guy at that

age.” In her opinion, “nobody really wanted to deal with him,” including the staff.

Thomas testified that the boys had the opportunity to earn the right to go home for

the weekend, and that when Montgomery earned that right, “some of the times he

didn’t get to go home because his mom didn’t come and get him.” Thomas said

that “Franklin Village was [Montgomery’s] home at that time” and that she would

“do consequences or whatever, * * * to show consistency helping him understand

what family life and proper family values are.”

{¶ 172} Thomas’s memories of Montgomery’s home life echoed Tanika’s

testimony that Montgomery “had no structure, no discipline or anything to go with

it.” Thomas admitted that at times, Montgomery “would act out” but stated that he

wasn’t “overaggressive in acting out.” She also acknowledged that as a teenager,

Montgomery would not always accept responsibility for his actions and described

him as “a normal kid in regards if he could get away with something, he would do

that.” Thomas testified that there was “no consistent follow-through with him”

from his mother.

{¶ 173} Ultimately, Thomas opined that FCCS failed Montgomery. She

explained that “Children Services was moving them through, getting them out. Not

really giving them what they needed to become what they need to be in society.”

She implored the panel to take Montgomery’s family background into

consideration and stated that Montgomery is now “taking responsibility for the

actions that he caused,” and that is “a real big step for a kid that never had to do

that.”

{¶ 174} Like Thomas, Brown was a youth leader in Cottage 5. Brown told

the panel that he has “very vivid” memories of Montgomery, who “was a good kid

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in comparison to a lot of the kids that we had in and out of the system there.” Brown

testified that Montgomery “was not a problem child” for him and that he “cannot

remember ever having to deal with him on a discipline level.” He described the

teenaged Montgomery as “respectful” and “responsive to the things that we would

ask him to do.” However, on cross-examination, Brown admitted that he knew

Montgomery had discipline problems in other cottages at FCCS, including “some

sexual acting out.”

{¶ 175} Brown also interacted with Carol Montgomery during the time that

Montgomery was housed at Franklin Village. Like Thomas, Brown recalled that

Montgomery would earn weekend passes home but that Carol would not always

pick him up. Brown explained that

a lot of parents took advantage of the Village because back in the

80s it was like a warehouse and parents would simply drop their kids

off. Not necessarily because they were having problems but they

needed a vacation from their children. And Carol fell right into that

type of parent. That was simply use the system as a way of baby-

sitting their child and not allowing them to come home. * * *

And meeting her, she was not a nasty person but you could

tell that her interest was not in Caron.

In conclusion, Brown opined that he did not “believe that Carol wanted

[Montgomery] home the majority of the time because she had eligibility to take him

home.”

{¶ 176} The parties jointly offered two exhibits, Joint Exhibit 1 and Joint

Exhibit 2, containing Montgomery’s FCCS records, after having agreed upon

certain redactions.

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{¶ 177} Records included in Joint Exhibit 1 reveal that Montgomery’s

mother viewed Montgomery as the source of all of her problems and that she turned

to FCCS after he was suspended from school. She “was very concerned that she

did not have ample babysitting arrangements” for Montgomery. Carol told the

FCCS intake worker that “she would be locking [Montgomery] in the home while

she attended school and went to work.” Despite being warned not to leave him

locked in the house, Carol “did so, however, and [Montgomery] climbed through

an upstairs window and went to his mother’s place of employment.” The intake

summary also indicates that Carol “then decided to lock [Montgomery] in her car

outside of her place of employment during her working hours.”

{¶ 178} Further evidencing his mother’s lack of support and concern for

him, the records state that Montgomery “did not receive mental health counseling

after he was sexually violated as a child, which could be contributing to some of

his inappropriate behaviors.” Carol told the FCCS intake employee that “her

marriage to [Montgomery’s stepfather] would be a satisfying relationship if it were

not for [Montgomery].” During Montgomery’s teenage years, Montgomery’s

stepfather “terminated his employment with the railroad in order to ‘hustle.’ ” His

stepfather also used and sold drugs, and his mother has “a history of associating

with negative male figures.”

{¶ 179} In his unsworn statement, Montgomery apologized for what he did,

admitted that it was a “selfish act” and that he knows that he “hurt a lot of people,

Tia’s family, [his] family, everybody who ever knew [him] or cared about [him].”

He prayed that the panel would “have mercy on [his] soul,” to allow him to “at least

be some type of dad from prison for [his remaining kids].” He specifically

apologized to Tia’s mother “because she trusted me with her daughter and our kids.

And I took them.” Montgomery told the panel that in his view, his mother, who

was a single parent, “did her best with [him].” He said that he “was a mess-up,”

and was “in trouble.”

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{¶ 180} In closing, Montgomery again apologized specifically to Tia’s

mother and said, “I feel like I betrayed you. I’m sorry for taking Tia, Tahlia, and

Tyron.”

3. Categorization of Mitigating Factors

{¶ 181} There is nothing mitigating about “the nature and circumstances of

the offense,” and there is no evidence of any of the statutory mitigating factors

described in R.C. 2929.04(B)(1) through (6). Instead, all of the evidence presented

in mitigation falls under the rubric of “history, character, and background,” or

“[a]ny other factors that are relevant.” See R.C. 2929.04(B)(7).

{¶ 182} Montgomery presented significant evidence of his difficult

childhood and unsupportive family structure, as well as some evidence of his good

character. Multiple witnesses testified that Montgomery grew up in a chaotic home,

that his mother blamed him for problems in her life, and that family members were,

in the words of his cousin’s wife, in a “cycle of nobody graduating from high

school, people abusing drugs, cussing out [their] children, letting [their] children

run wild.”

{¶ 183} His adult children testified that he has been supportive of them even

though he has not always been around them. Montgomery tries to be a positive role

model to his remaining children and his younger brother by encouraging them not

to follow in his footsteps and warning them to stay away from the wrong types of

people. His cousin has nothing but good memories of growing up with

Montgomery and still sees him as a good person, despite the crimes he committed

in this case. All of his family members testified that they would maintain a

relationship with Montgomery even when he is incarcerated.

{¶ 184} Montgomery’s cousin’s wife, Tanika, did not want to testify for

fear that she would offend his family. She testified because she strongly believes

that Montgomery still has value as a human being and that “there’s always qualities

within somebody that makes them a good individual.” Tanika and her husband

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Cyrill, who is Montgomery’s first cousin, testified to the chaotic household

Montgomery was raised in, with its complete lack of boundaries and its members’

drug use and drinking, which often happened around the children. In conclusion,

Montgomery’s relationship to his surviving children, brother, and cousins and their

mutual desire to maintain the close relationship is entitled to some weight.

{¶ 185} In his unsworn statement, Montgomery apologized to the

Hendricks family and to his own family, and he acknowledged that he let everybody

down. Despite the compelling evidence that his mother did not care for him and

held him responsible for her failures, Montgomery accepted responsibility for his

role in the breakdown of that relationship. Montgomery also pleaded guilty to the

capital indictment with no promise for leniency in sentencing. Montgomery’s

expressions of remorse and remorseful behavior deserve some weight.

4. Weighing

{¶ 186} As described above, Montgomery presented mitigating evidence

deserving of some weight, especially in reference to his unstable childhood that was

apparently created in no small part by his unsupportive and reproachful mother.

{¶ 187} In our view, however chaotic his background was, the evidence

presented does not strongly mitigate the aggravating circumstances relative to

Tahlia’s murder or to Tyron’s murder. Montgomery murdered two young, innocent

children, one of whom was his own two-year-old son, and then attempted to make

himself appear to be a victim. See Mammone, 139 Ohio St.3d 467, 2014-Ohio-

1942, 13 N.E.3d 1051, at ¶ 240 (course-of-conduct and murder-of-child-under-13

specifications “overwhelm[ed] the mitigating factors,” which included severe

personality disorder, lack of criminal history, strong work history, and success as a

student). We have held that the child-murder capital specification “is entitled to

great weight because it involve[s] the murder of a young and vulnerable victim.”

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 282.

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{¶ 188} On balance, we find that the aggravating circumstances outweigh

the mitigating factors beyond a reasonable doubt as to Tahlia’s murder. We also

find that the aggravating circumstances outweigh the mitigating factors beyond a

reasonable doubt as to Tyron’s murder.

5. Proportionality

{¶ 189} Finally, we conclude that the death penalty is appropriate and

proportionate for both children’s murders, when compared to death sentences

approved in similar cases.

{¶ 190} We have upheld death sentences for other child murders under R.C.

2929.04(A)(9) many times. See, e.g., Mammone at ¶ 1, 241 (five-year-old and

three-year-old victims); State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084,

854 N.E.2d 1038, ¶ 267-268 (three-month-old victim); Fitzpatrick, 102 Ohio St.3d

321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 1, 119 (12-year-old victim); State v.

Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 195-196 (six-year-

old victim); State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221,

¶ 1, 79 (six-month-old victim). We have also upheld the death penalty as

appropriate for other course-of-conduct murders under R.C. 2929.04(A)(5). See

State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 212; State

v. Awkal, 76 Ohio St.3d 324, 339-340, 667 N.E.2d 960 (1996); State v. Braden, 98

Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 162; and State v. Combs, 62

Ohio St.3d 278, 294, 581 N.E.2d 1071 (1991).

{¶ 191} Moreover, we have “ ‘approved death sentences in cases where the

witness-murder specification was present alone or in combination with one other

specification, even when substantial mitigation existed.’ ” Bethel at ¶ 212, quoting

State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 101, and

citing State v. Coleman, 85 Ohio St.3d 129, 707 N.E.2d 476 (1999), and State v.

Smith, 87 Ohio St.3d 424, 721 N.E.2d 93 (2000).

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III. CONCLUSION

{¶ 192} We affirm the judgments of conviction and sentences of death

entered against Caron Montgomery.

Judgment affirmed.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and KENNEDY, JJ.,

concur.

O’NEILL, J., dissents, with an opinion.

_________________

O’NEILL, J., dissenting.

{¶ 193} In this case, we have a defendant, Caron Montgomery, who was

admittedly on two prescription medications, Risperdal and Thorazine, when he

appeared in front of the court to waive his right to a jury trial and enter a guilty plea

to charges of murder and aggravated murder. He was later sentenced to death.

{¶ 194} Montgomery had appeared before the court on numerous occasions

prior to changing his plea, and the trial court was well aware that he was taking the

prescription medications. Yet, in spite of this, a competency evaluation was neither

ordered nor conducted. One would think that before we permit someone under the

influence of two strong medications to enter a guilty to plea to any crime, let alone

the ultimate crime of aggravated murder, we would want to make sure that the

person fully comprehends what he or she is doing.

{¶ 195} This court considered this issue in State v. Mink, 101 Ohio St.3d

350, 2004-Ohio-1580, 805 N.E.2d 1064, yet the majority chooses to ignore the

mandate set forth in that case: “Additional inquiry is necessary into a defendant’s

mental state once a defendant seeking to enter a guilty plea has stated that he is

under the influence of drugs or medication.” Id. at ¶ 66. In Mink, the defendant

was on a prescription medication at the time of his change-of-plea hearing,

however, as pointed out by this court, he had undergone two previous competency

evaluations that supported the trial court’s decision that he was competent at that

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time. Id. at ¶ 66-68. In the present case, no competency evaluation was ever

performed on Montgomery.

{¶ 196} Similarly, in United States v. Damon, 191 F.3d 561 (4th Cir.1999),

which this court cited in Mink, the federal court held that the trial court had “failed

to inquire about what effect, if any, Damon’s medication had on his ability to make

a voluntary plea and to understand the consequences.” Id. at 565. The majority

seems to be satisfied that Montgomery stated in open court that he understood what

he was doing, and that he signed a written waiver. This conclusion was bolstered

by the opinion of Montgomery’s attorney—who was not a medical expert—that

Montgomery understood the rights that he was waiving. But if medication

prevented Montgomery from truly comprehending his actions, how reliable were

his spoken assurances and his signed statement to the contrary? The trial court did

not inquire about whether or how the medications affected Montgomery’s abilities.

{¶ 197} I believe that more was required under Mink and Damon. At the

very least, when someone is undoubtedly under the influence of a prescription

medication when making the decision to enter a guilty plea, the trial court must

inquire about the effects of the medication so that it can ensure that the defendant

understands the gravity of the situation and comprehends his or her actions. This

court should not affirm a conviction, let alone a death sentence, by guessing about

the mental competence of a defendant. Further inquiry was required before the trial

court accepted Montgomery’s plea of guilty.

{¶ 198} Accordingly, I must dissent.

_________________

Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Steven L.

Taylor, Chief Counsel, Appellate Division, for appellee.

Timothy Young, Ohio Public Defender, Kathryn L. Sandford, Supervisor,

Death Penalty Division, and Shawn P. Welch and Lisa M. Lagos, Assistant Public

Defenders, for appellant.

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_________________

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