State v. McKelton (Slip Opinion)

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

v. McKelton, Slip Opinion No. 2016-Ohio-5735.]

NOTICE

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

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

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

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

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

the opinion is published.

SLIP OPINION NO. 2016-OHIO-5735

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

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

may be cited as State v. McKelton, Slip Opinion No. 2016-Ohio-5735.]

Criminal Law—Aggravated murder—Death penalty—Conviction and death

penalty affirmed.

(No. 2010-2198—Submitted January 13, 2015—Decided September 13, 2016.)

APPEAL from the Court of Common Pleas of Butler County,

No. CR2010-02-0189.

_________________

LANZINGER, J.

{¶ 1} Calvin McKelton appeals his convictions of the February 2009

aggravated murder of Germaine (“Mick”) Evans and the July 2008 murder of

Margaret (“Missy”) Allen. For the reasons that follow, we reject each proposition

of law and affirm the convictions and death sentence.

SUPREME COURT OF OHIO

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Background

{¶ 2} In February 2010, the state charged McKelton with the murder of

Allen, R.C. 2903.02(B), and the aggravated murder of Evans, R.C. 2903.01(A).

The aggravated-murder charge carried a firearm specification, R.C. 2941.145, and

two death specifications, R.C. 2929.04(A)(3) (escaping detection) and (A)(8)

(killing to prevent testimony in a criminal proceeding).

{¶ 3} McKelton was also charged with two counts of felonious assault, R.C.

2903.11(A)(1), and two counts of domestic violence against Allen, R.C.

2919.25(A); gross abuse of her corpse, R.C. 2927.01(B); aggravated robbery and

aggravated arson, R.C. 2911.01(A)(3) and 2909.02(A)(2); tampering with

evidence, R.C. 2921.12(A)(1); and intimidating a witness in a criminal case, R.C.

2921.04(B). The state, with leave of court, dismissed the aggravated-robbery

charge before trial.

{¶ 4} A jury trial began in October 2010.

B. The State’s Case-in-Chief

1. Domestic Abuse of Missy Allen

{¶ 5} Missy Allen, a criminal-defense attorney who had represented Calvin

McKelton, began dating him in 2006 or 2007. By 2008, McKelton was living with

Allen and her nieces, T.W. and Z.D., at Allen’s home in Butler County.

{¶ 6} T.W., then a teenager, testified that she had witnessed physically

violent arguments between McKelton and Allen while they were living together.

One time she found McKelton on top of Allen, choking her. During another

altercation, Allen asked T.W. to call the police, but McKelton took the phone from

T.W. and threw it on a counter. T.W. said that after things “start[ed] to get bad,”

Allen told her not to say anything about what happened in her house.

{¶ 7} A document on Allen’s home computer, created on September 13,

2007, chronicled abuse. The first-person narrative described an incident during

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which McKelton hit, kicked, and pushed Allen and then choked her twice, once

with such force that she nearly lost consciousness. She listed injuries to her face,

right side, right leg, back, and head as well as blood clots in her eyes due to “the

loss of air.” She was afraid because McKelton had threatened her and her niece.

She indicated that she intended to prosecute and to request a temporary protection

order and a high bond.

{¶ 8} A notebook found in Allen’s home office contained handwritten notes

that repeatedly mentioned the name “Calvin.” Charia Mam, a friend of Allen’s,

testified that the handwriting was Allen’s. Allen described McKelton’s grabbing

her by the neck, hitting her lip, threatening to burn her eye with a cigarette, and

pushing her down “b/c tried to choke.” Allen also described calling for her niece

to call 9-1-1. An undated apology note to Allen, written in McKelton’s

handwriting, stated: “I Love u baby, I don’t ever want to hurt u again. * * * I want 2

say sorry 2 you and 2 God for what Ive done.”

{¶ 9} Z.D., then 11 years old, testified that on May 4, 2008, she heard

McKelton yelling and Allen screaming from the direction of the garage. She called

9-1-1. Officer Kelly Smith was dispatched to Allen’s home, but McKelton and

Allen were gone when she arrived. The officer said that Z.D. was visibly shaking

and acting with “extreme fear.” McKelton returned while Smith was still at the

house. He “burst through the door” yelling Z.D.’s name and told Smith “to bounce

[her] ass out of the house.” Allen then called the house and told the officer that she

was in the hospital. Z.D. testified that Allen later told her she was “kind of mad”

that Z.D. had called 9-1-1 and had not come into the garage.

{¶ 10} Allen gave several accounts of her argument with McKelton. She

told police that McKelton had not harmed her and “if anything, she essentially

provoked him” by shoving him. She said that she tripped over something in the

garage. She told hospital personnel that she had fallen over a lawn mower or bike,

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told a children’s services representative that she had fallen over a chair, and told

her physical therapist that she had fallen down a step.

{¶ 11} Allen’s injury required surgery to place four screws in her ankle as

well as physical therapy. According to two friends, Shaunda Luther and Mam,

Allen became “increasingly depressed,” “somewhat detached,” and “distant” after

the injury. McKelton was always around, and it was hard for Mam and Luther to

have meaningful conversations with Allen. Because she could not drive, she

depended on McKelton to take her to medical appointments and to court. And Luther

said that Allen was depressed because she could not make money to support herself.

Her bank account was overdrawn as of July 25, 2008.

{¶ 12} Mam and Luther both testified that Allen had expressed concern

about McKelton’s jealousy. Allen told Mam that McKelton “went through her

phone and text record frequently, and it always ended in an argument.” She also

told Mam that McKelton would kill her if he knew another man had sent her flowers

or if he thought she had slept with his friend.

{¶ 13} In July 2008, Allen told Mam that she thought she was pregnant.

She told her friend that she feared having a baby would tie her to McKelton forever

but that McKelton would kill her if she had an abortion without telling him. Allen

suffered a miscarriage later that month.

2. The Murder of Missy Allen

{¶ 14} On July 27, 2008, a woman was found dead in woods on the east

side of Cincinnati. A piece of plastic resembling a shower-curtain liner was

wrapped around the victim’s thighs, and a bag of counterfeit drugs lay near her

body.

{¶ 15} Jan Gorniak, D.O., then a deputy coroner for Hamilton County,

performed an autopsy on July 28, 2008. She classified the death as a homicide caused

by strangulation. Gorniak could not determine a precise time of death, but she

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estimated that the body had been in the woods for one and one-half to three days.

After the autopsy, police identified the woman as Allen.

a. Physical evidence

{¶ 16} Police then searched Allen’s home. The front door was locked and

the security system was activated, but inside they found a burn mark in the master

bedroom and several items that later tested positive for gasoline or gasoline

components. Officers collected samples of drywall that appeared to have blood on

them; the samples were later confirmed to have a DNA profile consistent with

Allen’s DNA profile. Two items—a cigarette butt and the door to the garage, which

had a smear that appeared to be blood—had a DNA profile consistent with

McKelton’s DNA profile.

{¶ 17} Valuable items—including Allen’s purse—were in plain view,

apparently undisturbed. Police found a long piece of weed-eater cord on the kitchen

floor. There was a shower curtain on the hallway floor but no sign of a shower-

curtain liner.

{¶ 18} Allen’s car was found in the village of Golf Manor shortly after

midnight on July 29, 2008. It was locked and did not appear to have been tampered

with. Cell-phone records indicated that the last outgoing call on Allen’s phone was

at 8:27 p.m. on July 25, 2008, to a phone number used by McKelton. Her laptop

computer was last used around 4 p.m. that day.

b. Investigation of McKelton

{¶ 19} On July 29, McKelton came to the Fairfield Police Department. After

he signed a Miranda waiver, he asked if there were any warrants for him. There

were not. McKelton did not answer any other questions. Officers noted small

abrasions (possibly burn marks) on McKelton’s hands. They photographed him

and took fingerprints, DNA samples, and fingernail scrapings. The DNA samples

were not consistent with male DNA collected from Allen’s fingernails.

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{¶ 20} Based on cell-phone records, police believed that McKelton had

been near Allen’s house on the night of July 25 and the morning of July 26. He

made repeated calls that bounced off the Sprint cell-phone tower closest to Allen’s

house between 9:02 p.m. and 10:52 p.m. on July 25. McKelton’s next 18 calls

bounced off several towers, but he was near the Sprint tower closest to Allen’s

house again between 8:01 a.m. and 9:17 a.m. on July 26.

{¶ 21} Later, police learned of a possible eyewitness to Allen’s murder:

McKelton’s friend, Evans. Andre Ridley, a friend of Evans’s, testified that Evans

had told him about Allen’s death a few days after her body was found. Evans told

Ridley that he had been at Allen’s house when he heard her and McKelton fighting

in another room. Evans walked in and saw McKelton choking Allen. McKelton

then smacked Allen, telling her to wake up, but she did not. The men “started

staging the scene as a robbery.” Evans told Ridley that he and McKelton had

wrapped up Allen’s body and put it in the car, and McKelton set fire to the house.

The two men drove to a wooded area and dumped the body. McKelton threw some

drugs beside it.

{¶ 22} According to Ridley, Evans said that McKelton had assured him that

he could be charged only with abuse of a corpse. Evans also reported that McKelton

gave him 20 ounces of cocaine (worth $20,000 to $40,000). Ridley did not speak

with police until months later, after Evans was killed.

{¶ 23} Audrey Dumas testified that she had been with McKelton the night

that Allen died. Dumas said that she went out with McKelton one weekend night

in late July 2008. McKelton picked her up around 11:15 p.m. in a black BMW,

which she recognized as Allen’s car. They went to a club until 2:15 or 2:30 a.m.

and then drove around downtown with McKelton’s friends. McKelton brought her

home around 3:30 or 4:00 a.m.

{¶ 24} On July 25, McKelton was near Allen’s house at 10:52 p.m. After

that, he made or received seven calls—which bounced off different cell-phone

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January Term, 2016

towers—before a call bounced off a tower in the vicinity of Dumas’s house at 2:25

a.m. on July 26.

3. The Murder of Mick Evans

{¶ 25} Police did not learn that Evans may have witnessed Allen’s murder

until seven months after Allen’s death. Detective Jenny Luke obtained a subpoena

for Evans’s DNA and began trying to locate him.

{¶ 26} On February 24, 2009, Luke telephoned Evans’s sister, Crystal

Evans, and asked her to tell Evans that police wanted to talk to him about Allen’s

death. Luke did not realize that Crystal had been dating McKelton since September

2008 and that he was living with her. Crystal testified that McKelton easily could

have overheard her conversation with Luke. McKelton was at Crystal’s home when

she called Evans to relay Luke’s message.

{¶ 27} On March 1, Evans’s body was found at the bottom of steps leading

into a city park. Four .40 caliber shell casings were nearby. Neighborhood

residents reported to police that they had heard four or five gunshots near the park

between 9:00 p.m. and midnight on February 27, 2009.

{¶ 28} Gretel Stephens, M.D., a deputy coroner for Hamilton County,

performed an autopsy the next day. She gave her opinion that Evans had been dead

more than 24 hours and possibly for two or three days. He had been killed by a

single gunshot wound to the back of the head on the left side. The shot had been

fired at “very, very close” range, or possibly even with contact. Stephens recovered

bullet fragments that were consistent with a .40 caliber Smith & Wesson Sigma

Series semiautomatic.

{¶ 29} Police never found the murder weapon. However, the state did

introduce testimony from Allen’s teenaged niece, T.W., about a time when she saw

McKelton with a gun, which she said looked like a .40 caliber automatic.

{¶ 30} Cell-phone records indicated that Evans had last placed a call at 9:55

p.m. and last sent a text message at 10:01 p.m. on February 27. According to

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Crystal, Evans did not trust anyone, so “[s]omebody close to him” must have shot

him.

{¶ 31} Crystal provided an alibi for McKelton on the night of February 27,

2009. She told police that he had arrived home before 9 p.m. but at trial admitted

that it may have been later. She said that after McKelton got home, she went out

to buy candy. She testified that when she returned home around 10:00 p.m.,

McKelton was gone. Crystal called him, and he said he had gone to get cigarettes.

McKelton walked in with a pack of cigarettes about five minutes later and the two

stayed in for the rest of the night. On cross-examination, Crystal said that she had

called McKelton at 9:22 p.m. and he arrived home for the night a few minutes later.

{¶ 32} Cell-phone records indicate that from 9:10 to 9:51 p.m. on February

27, several calls were made back and forth among McKelton, Brian “Red” Adams,

an old friend of McKelton’s, and Audrey Dumas, McKelton’s former girlfriend.

Dumas then called McKelton’s number more than two dozen times, ending at 11:37

p.m. Dumas testified that at 11:01 p.m., she was parked outside Crystal’s apartment,

believed McKelton was inside, and tried to disrupt their time together by sending text

messages telling him to come out. Later, beginning at 2:32 a.m., McKelton called

Dumas’s and Red’s numbers multiple times. Crystal testified she did not recall

waking up or hearing McKelton on the phone during the night.

{¶ 33} After Evans’s murder, Crystal avoided McKelton for several weeks,

but they resumed their relationship. In June 2010, she gave birth to his son. She

regularly visited McKelton in jail as he awaited trial, and they exchanged frequent

phone calls and letters. In letters, he reminded her that he was with her the night

Evans died and told her to stop “com[ing] at” him like she did not “know for [sure

he] was at home wit[h her].” He explained that phone records showed that Evans

died at 10:00 p.m. and told Crystal, “[W]e were home asleep at ten.”

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4. McKelton’s Admissions

{¶ 34} Multiple witnesses testified that McKelton implicated himself in the

deaths of Allen and Evans. Three of them—Marcus Sneed, Charles Bryant, and

Lemuel Johnson—were informants charged with other offenses.

{¶ 35} Sneed, who had grown up in the same neighborhood as McKelton,

testified that he had run into McKelton at a club and confronted him about Allen’s

death. McKelton told Sneed that he had choked Allen during “a heated argument”

but that he “didn’t mean to.” McKelton mentioned something about Allen’s

pregnancy and about her threatening him with her knowledge of his crimes.

{¶ 36} McKelton also told Sneed that “a friend help[ed] him” get rid of

Allen’s body. Sneed confronted McKelton again after hearing rumors about

Evans’s death. McKelton stated that he had had to kill Evans because Evans “was

the only guy that could link him to the murder.” Sneed did not report this

information to police until he was later arrested on federal drug-conspiracy charges.

{¶ 37} Bryant, who had met McKelton during a 2003 incarceration, testified

that McKelton had told him about the deaths of Allen and Evans. McKelton said

that he had been involved with an attorney and choked her during an argument

about whether she was pregnant with someone else’s baby. McKelton also

reminded Bryant about what had happened to Evans, which Bryant interpreted as a

threat. Bryant did not come forward with this information until he was incarcerated

on new charges.

{¶ 38} Johnson testified that McKelton had confessed to both murders

while they were discussing drug-related business. According to Johnson,

McKelton needed money and was trying to convince him to let him take care of

some witnesses for him. McKelton described situations in which he had eliminated

witnesses in the past. He said that he had been with Evans’s sister when a detective

called looking for Evans to discuss Allen’s death. He explained that Evans had

been a “weak link” who could connect him to Allen’s murder, so he had to kill him

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before the detective found him. But Johnson did not report this conversation until

he was awaiting sentencing for a federal drug offense.

{¶ 39} The state also called Gerald Wilson and Michael Nix, two

acquaintances of McKelton’s who had reported hearing McKelton admit

responsibility for Allen’s death.

{¶ 40} Prior to the trial, Wilson told police about a conversation that he had

had with Michael Howell and McKelton in April or May, 2009. One night, Howell

gave Wilson a ride; McKelton was in the front passenger seat, texting someone.

McKelton commented, “Man, that bitch ain’t giving my shit to nobody. If she did,

I’m gonna choke her like I did Margaret and get away with it.” Howell warned

McKelton to watch what he said. McKelton responded that Wilson “ain’t gonna

do nothing. If he did, he gonna end up like Mick did.” At trial, Wilson recanted

and insisted that he knew nothing about Allen’s murder, so the prosecutor played a

recording of his original police statement for the jury.

{¶ 41} Nix refused to testify for the state at trial, so Detective David

Gregory testified about his prior statements under the doctrine of forfeiture by

wrongdoing. According to Gregory, Nix had asked McKelton about Allen, and

McKelton said that things “got out of hand, and he didn’t mean to do it.” Gregory

also testified that Nix said that Evans, McKelton, Red, and Lamar Simmons were

in his house around 11 p.m. on February 27, 2009, when he came home. Nix said

that the men left about an hour later. He never saw Evans again.

{¶ 42} Sheridan Evans, the mother of Evans and Crystal, testified that

McKelton spoke to her less than a week after Allen’s body was found. He “was

crying very hard” and said that “he loved Missy and it was a mistake.” McKelton

told Sheridan that he had “tried to revive [Allen] for 10 minutes, but [he] couldn’t

bring her back.” Sheridan also testified that McKelton and Red came to speak with

her after she met with homicide detectives in March 2009. During the conversation,

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Sheridan mentioned rumors that McKelton had killed Evans. McKelton denied the

rumors but said, “I don’t want to see nothing else happen to none of your kids.”

C. The Defense Case

{¶ 43} Defense counsel did not present any witnesses during the first phase

of the trial. However, they introduced almost 30 exhibits, including additional

crime-scene photos, the transcript of a police interview with Crystal, and some

additional phone records.

D. Verdict and Sentencing

{¶ 44} The jury convicted McKelton on all counts and specifications except

Count 11, intimidation of a witness. The trial court merged the death specifications

before sentencing, and the state elected to proceed on R.C. 2929.04(A)(8),

murdering a witness to prevent his testimony in a criminal proceeding. After the

mitigation phase and the jury recommendation, the trial court sentenced McKelton

to death for the aggravated murder of Evans. The court also sentenced him to 15

years to life in prison for Allen’s murder and to a total of 25 years for the remaining

convictions.

{¶ 45} McKelton now appeals, raising 21 propositions of law. We address

his propositions out of order for ease of analysis.

II. ANALYSIS

A. Pretrial Issues

1. Nondisclosure of Witnesses: Proposition of Law No. 2

{¶ 46} In his second proposition of law, McKelton challenges the

prosecutor’s failure to disclose eight witness names until the night before his trial

began.

a. The nondisclosure hearing

{¶ 47} The state originally filed a certification for nondisclosure, pursuant

to Crim.R. 16(D), of 23 witness names. After a request from the defense, the trial

judge referred the matter to another judge to hold an in camera hearing. By the

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time the hearing took place, the prosecutor had disclosed all but eight witnesses,

seven of whom would testify at trial. At the hearing, the prosecutor argued that

disclosure would subject the witnesses or a third party to potential harm, coercion,

or intimidation. He offered four pieces of evidence in support.

{¶ 48} First, McKelton had been convicted of intimidating a witness in

2003. Second, in a jailhouse letter to Crystal, McKelton said that they should post

witness names in a public place when they got them. Third, in a phone call shortly

after McKelton’s arrest, an associate of McKelton’s told him not to worry because

they would “John Brown this case.” The prosecutor explained the reference: a

Cincinnati homicide defendant named John Brown had been acquitted when every

witness against him disappeared or recanted on the eve of his trial. Fourth, a

witness whose name had been disclosed, Michael Nix, had recently been shot at

shortly after a known associate of McKelton’s had asked Nix about McKelton’s

case.

{¶ 49} The judge asked what motivated the state’s heightened concern for

these eight witnesses. The prosecutor explained that two witnesses “were

extremely afraid to have their names disclosed” and likely would not have agreed

to testify absent nondisclosure. In addition, three witnesses, who were then

incarcerated, were fearful for themselves and their families. The prosecutor said

nothing specific about two witnesses.

{¶ 50} The judge upheld the nondisclosure as a proper exercise of

prosecutorial discretion. The prosecutor gave the defense the undisclosed

witnesses’ names and all but one of the statements on the evening before trial. One

statement was not provided until the next morning, shortly before the trial began.

b. Crim.R. 16(D) and (F)

{¶ 51} As an exception to the general rule requiring the disclosure of

witness names prior to trial, a prosecutor may seek relief from disclosure under

Crim.R. 16(D)(1) if the prosecutor has “reasonable, articulable grounds to believe

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that disclosure will compromise the safety of a witness, victim, or third party, or

subject them to intimidation or coercion.” Such grounds include “the nature of the

case, the specific course of conduct of one or more parties, threats or prior instances

of witness tampering or intimidation, * * * and any other relevant information.”

Crim.R. 16(D).

{¶ 52} Upon a defendant’s motion, an in camera hearing must be conducted

seven days prior to trial. Crim.R. 16(F). If the trial court finds an abuse of

prosecutorial discretion, then the prosecutor must immediately disclose the

material. 2010 Staff Note, Crim.R. 16(F). Otherwise, the material must be

disclosed “no later than commencement of trial.” Crim.R. 16(F)(5). We review a

lower court’s rulings on discovery matters for an abuse of discretion. State ex rel.

Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952,

¶ 27.

{¶ 53} McKelton argues first that the court should have found an abuse of

prosecutorial discretion under Crim.R. 16(D)(1) because the prosecutor’s grounds

were about only McKelton and the case generally and were not specific to each

witness. But Crim.R. 16 specifically contemplates nondisclosure for the reasons

the prosecutor cited here: the nature of the case against McKelton, his past

conviction for intimidating a witness, and evidence that he had sought to intimidate

witnesses in this case.

{¶ 54} Second, McKelton argues that the prosecutor could not rely on the

undisclosed witnesses’ representations that they feared McKelton’s knowing that

they would testify. McKelton contends that the prosecutor, not the witness, is

responsible for assessing any possible danger to a witness. While the rules vest the

prosecutor with responsibility for making the nondisclosure determination, a

prosecutor is not precluded from taking a witness’s own impressions into account

when deciding whether to disclose that witness’s identity. A witness’s fear of

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reprisal is relevant to the question whether disclosure might compromise the

witness’s safety.

{¶ 55} Third, McKelton argues that the prosecutor acted arbitrarily because

the nondisclosed witnesses offered testimony similar to, but less damaging than,

other witnesses whose names were disclosed. Crim.R. 16 does not require the state

to explain its reasons for choosing to disclose, and McKelton did not request such

an explanation.

{¶ 56} Finally, McKelton says that the eight undisclosed witness names

should have been disclosed at least seven days before trial. He ignores the language

of Crim.R. 16(F), which plainly states that when a trial court finds no abuse of

discretion in a prosecutor’s nondisclosure decision, materials must be disclosed no

later than the commencement of trial.

{¶ 57} In sum, the trial court did not abuse its discretion by affirming the

certificate of nondisclosure as a proper exercise of prosecutorial discretion.

c. Constitutional challenges to late disclosure

{¶ 58} McKelton also argues that the late disclosure of these witnesses

violated several of his constitutional rights.

{¶ 59} First, he says that the late disclosure violated the Confrontation

Clause of the Sixth Amendment to the U.S. Constitution. A defendant’s

confrontation rights may be “legitimately constrained” by rules of discovery. State

v. Williams, 23 Ohio St.3d 16, 18, 490 N.E.2d 906 (1986). We have already

rejected a confrontation challenge to the predecessor to Crim.R. 16(D), former

Crim.R. 16(B)(1)(e), 34 Ohio St.2d li, at lii-liii, which permitted trial courts to

control the disclosure of information that might subject a witness to physical harm

or coercion. Williams at 18-19. And in any event, he did have a meaningful

opportunity to confront the witnesses against him: the witnesses were disclosed

before trial, and defense counsel cross-examined each one who testified. See State

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v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754,

¶ 22.

{¶ 60} Alternatively, McKelton claims that the late disclosure violated his

right to due process and a fair trial. The Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution prohibits prosecutors from concealing

evidence favorable to a defendant, but “[t]here is no general constitutional right to

discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct.

837, 51 L.Ed.2d 30 (1977). Prosecutors are not constitutionally required to “reveal

before trial the names of all witnesses who will testify unfavorably.” Id. Instead,

“a trial court has broad discretion to postpone disclosure of a prospective witness’s

identity in order to protect his or her safety.” Alvarado v. Superior Court, 23

Cal.4th 1121, 1150, 99 Cal.Rptr.2d 149, 5 P.3d 203 (Cal.2000). Here, the trial court

did just that. Therefore, McKelton cannot demonstrate a violation of his right to

due process or a fair trial.

{¶ 61} Finally, McKelton alleges that the delayed disclosure denied him his

right to effective assistance of counsel because it deprived his attorneys of an

adequate opportunity to investigate and prepare his defense. To prevail on this

claim, he must show both that the nondisclosure caused counsel’s performance to

be deficient and that he suffered prejudice. Strickland v. Washington, 466 U.S. 668,

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For reasons explained in

response to the 1st, 15th, and 16th, propositions of law, McKelton has not met his

burden.

{¶ 62} For these reasons, we reject proposition of law No. 2.

2. Withdrawal of Counsel and Continuances: Proposition of Law No. 1

{¶ 63} In his first proposition of law, McKelton argues that the trial court

erred by denying his court-appointed counsel’s request to withdraw from

representation and his corresponding motion to remove those counsel. He claims

that the error in refusing counsel’s request to withdraw “was compounded by the

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trial court’s failure to grant repeated requests for a continuance” and argues that

these errors violated his right to due process, a fair trial, and effective assistance of

counsel.

a. Withdrawal of counsel

{¶ 64} McKelton claims that the trial court should have removed John Gregory

Howard and Melynda Cook, his two court-appointed attorneys, as counsel.

(1) Factual background

{¶ 65} Initially, McKelton retained attorney Richard Goldberg. At

McKelton’s arraignment in February 2010, Goldberg informed the court that he

lacked experience trying capital cases. He also explained that McKelton had

become indigent and asked the court to appoint counsel under former Sup.R. 20,

105 Ohio St.3d CXLV.1 Goldberg also sought “permission to stay on” as counsel,

if the state did not object. The trial judge appointed Howard as lead counsel and

Cook as co-counsel because he was unsure “what the status of [Goldberg’s]

participation” would be.

{¶ 66} On September 14, 2010, Goldberg, Howard, and Cook moved for

leave to withdraw, for the appointment of new counsel, and for a continuance so

new counsel could prepare for trial. Two days later, McKelton filed a handwritten

motion asking the “court to remove all counsel because of irreconcilable

differences, lawyer misconduct, conflict of interest, misrepresentation, personal

conflict and a complete lack of communication.”

{¶ 67} Goldberg was permitted to withdraw because of a conflict of interest.

But Cook and Howard cited only “a breakdown in the attorney client relationship”

1

McKelton claims that the trial court violated former Sup.R. 20, 105 Ohio St.3d CXLV, by

appointing two lawyers even though he had retained Goldberg. But counsel were appointed at

Goldberg’s request, and McKelton cannot take advantage of an error that he invited. State v.

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10. Moreover, McKelton

arguably benefited: the two certified capital attorneys supplemented the efforts of Goldberg, who

lacked capital-defense experience.

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as the basis for their request. Howard explained that McKelton did not trust his

appointed counsel and would no longer cooperate in preparing his defense.

{¶ 68} McKelton told the trial judge that counsel had tried to pressure him

into accepting a plea bargain. He claimed that his attorneys and the prosecutor had

“conspired” to “coerce” him to accept a plea offer and that Cook was “outraged”—

even making a racist comment—when he refused. McKelton also said that Howard

and Cook had failed to effectively communicate with him, adequately prepare for

trial, use his money well, or hire the necessary defense experts.

{¶ 69} The trial judge denied Howard and Cook’s motion to withdraw,

finding that they were competent and had prepared the case “diligently.” The judge

reasoned that communication had broken down due to McKelton’s rejection of

counsel’s legal advice and refusal to cooperate.

(2) Analysis

{¶ 70} We review a lower court’s decisions about whether to discharge and

replace court-appointed counsel for an abuse of discretion. State v. Williams, 99 Ohio

St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. A defendant may establish good

cause to substitute new counsel by demonstrating “a ‘complete breakdown in

communication’ between the defendant and appointed counsel.” State v. Cowans, 87

Ohio St.3d 68, 73, 717 N.E.2d 298 (1999), quoting United States v. Calabro, 467

F.2d 973, 986 (2d Cir.1972).

{¶ 71} McKelton suggests several reasons why the trial court erred by not

dismissing Howard and Cook. First, he claims that the attorney-client relationship

completely broke down when counsel encouraged him to accept a plea bargain. But

disagreements—such as disagreement over the merits of a plea offer—“ ‘between

the attorney and client over trial tactics or approach * * * do not warrant a

substitution of counsel.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283,

855 N.E.2d 48, ¶ 150, quoting State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-

3475, 792 N.E.2d 757, ¶ 32 (7th Dist.). To the contrary, counsel “ ‘has a duty to

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be candid’ ” and “ ‘to give the accused an honest appraisal of his case.’ ” Id. at

¶ 151, quoting Brown v. United States, 264 F.2d 363, 369 (D.C.Cir.1959). Here,

defense counsel apparently gave McKelton their honest appraisal of his case, which

does not prove bias or conspiracy.

{¶ 72} McKelton also claims that he lacked confidence in Howard and

Cook because they failed to establish a relationship of trust, met with him only

twice, and did not consult with him about the state’s evidence. But the record

suggests that he met with Goldberg more regularly. The fact that he may have had

fewer personal interactions with Howard or Cook in the months preceding

Goldberg’s withdrawal does not justify the removal of court-appointed counsel

simply because Goldberg later withdrew.

{¶ 73} Next, McKelton objects that Howard and Cook failed to hire the

necessary experts to prepare his defense. The trial court approved funding for “an

investigator and mitigation specialist, a mental health professional, if * * *

appropriate, and a forensic expert, if * * * appropriate.” Counsel apparently hired

only an investigator. But that does not necessarily prove that counsel were

unprepared. Until a few weeks before trial, McKelton was represented by three

attorneys. And his investigator worked more than 100 hours on the case. Defense

counsel’s decision to hire additional experts was a matter of trial strategy, and

McKelton cannot establish that the strategy was unreasonable on this record. See

State v. Keyes, 6th Dist. Erie No. E-08-072, 2009-Ohio-6343, ¶ 28.

{¶ 74} Finally, McKelton says counsel should have been permitted to

withdraw because they were afraid of him. But counsel’s only expression of

concern occurred during the hearing on the motion to withdraw, and only in

response to the prosecutor’s reference to threats made by McKelton. The

prosecutor promptly clarified that McKelton had not threatened his counsel. Thus,

fear did not require the substitution of counsel in this case.

{¶ 75} The trial court reasonably declined to discharge Howard and Cook.

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b. Continuances

{¶ 76} McKelton argues that the trial court’s denial of his continuance

requests violated his constitutional rights and prejudiced his defense. To the extent

that McKelton’s argument implicates his constitutional right to the effective

assistance of counsel, McKelton must meet the Strickland test, showing both that

counsel’s performance was deficient and that he suffered prejudice.

{¶ 77} First, McKelton says that the court should have granted a

continuance on September 17, 2010, when Goldberg withdrew. The defense’s

continuance motion was predicated on the appointment of new defense counsel, who

would need additional time to prepare for trial. A continuance was unnecessary

because Howard and Cook remained as defense counsel and they had “known for

a significant amount of time” that Goldberg was likely to withdraw. Two months

before trial, defense counsel indicated that Richard Goldberg’s representation of

McKelton might create a conflict of interest. The judge had previously warned

Howard and Cook that they would need to be ready to go to trial without Goldberg

and, on September 17, he found that they were prepared to do so. Neither Howard

nor Cook indicated that they needed additional time to prepare as a result of

Goldberg’s withdrawal. McKelton does not explain how any deficient performance

resulted from Goldberg’s withdrawal, undermining any claim under Strickland.

Accordingly, we find no error in the trial court’s denial of the continuance request on

September 17.

{¶ 78} Second, McKelton says that the trial court should have granted a

continuance to allow the defense to investigate and prepare to cross-examine the

eight state witnesses who were disclosed shortly before trial began. The authors of

Crim.R.16 made clear that routine continuances to allow further defense

investigation of nondisclosed witnesses would destroy “the protective purpose of

[the nondisclosure] process.” 2010 Staff Notes, Crim.R. 16(F). For this reason,

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the “[Rules] Commission anticipated that continuances of trial dates would occur

only in limited circumstances.” Id.

{¶ 79} McKelton generally asserts that more time would have aided his

defense, but he does not explain why this case qualifies as one of those limited

circumstances. The record does not indicate that defense counsel were unprepared

for cross-examination; they cross-examined each of the late-disclosed witnesses

who testified at trial and even used some statements—as provided by the state—to

impeach them. And McKelton offers no indication of what information further

investigation would have yielded or how counsel would have used that information.

See State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that

require evidence outside the record are not appropriately considered on direct

appeal).

{¶ 80} Thus, McKelton has failed to establish an abuse of discretion or a

violation of his constitutional rights.

{¶ 81} For these reasons, we reject proposition of law No. 1.

3. Voir Dire: Proposition of Law No. 3

{¶ 82} In his proposition of law No. 3, McKelton argues that the trial court

violated his right to an impartial jury by denying his motion for individual,

sequestered voir dire. He further claims that defense counsel did not have sufficient

opportunity to question the venire.

{¶ 83} “The manner in which voir dire is to be conducted lies within the

sound discretion of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418, 613

N.E.2d 212 (1993). However, because an adequate voir dire is “part of the

guarantee of a defendant’s right to an impartial jury,” Morgan v. Illinois, 504 U.S.

719, 729, 112 S.Ct. 2222, 119, L.Ed.2d 492 (1992), that discretion is “ ‘subject to

the essential demands of fairness,’ ” id. at 730, quoting Aldridge v. United States,

283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

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a. Group voir dire

{¶ 84} “There is no requirement that voir dire in a capital case must be

conducted in sequestration.” State v. Fears, 86 Ohio St.3d 329, 338, 715 N.E.2d

136 (1999). In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d

229, we held that a trial court did not err by denying a request for sequestered voir

dire when the court “permit[ted] counsel to individually question prospective

jurors” and also “gave all jurors the opportunity to be questioned in private if they

were uncomfortable discussing their views in a group setting.” Id. at ¶ 66.

{¶ 85} The trial court voir dired McKelton’s prospective jurors in a group.

But as in Leonard, the judge anticipated that the prospective jurors might not be

comfortable answering every question in front of the entire group. At the outset of

voir dire, he advised, “[I]f at any point during this process you wish to answer a

question privately, you may do so.” He reiterated this point just before allowing

counsel to individually question the prospective jurors. Under these circumstances,

we see nothing inherently unfair about the manner in which the trial court

conducted voir dire.

{¶ 86} McKelton nevertheless claims that group voir dire was prejudicial

because “[t]he entire venire was made aware of pretrial publicity.” The trial judge

asked whether “anybody here [] knows anything about this based upon publicity of

the case.” Five prospective jurors responded affirmatively, and three indicated some

doubt about McKelton’s innocence based on press coverage. The prosecutor

explained to the venire that news reports are not evidence and that they are not

always accurate. And no juror responded when these jurors were asked if they

could not set aside anything they had read. In fact, defense counsel even described

an error in a recent news account.

{¶ 87} McKelton argues that this line of questioning tainted the entire venire

by informing every potential juror that some press coverage had implied his guilt.

But an entire venire is not necessarily prejudiced due to “the effect of being

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influenced by the opinions expressed by prior veniremen.” State v. Carter, 72 Ohio

St.3d 545, 555, 651 N.E.2d 965 (1995). We decline to presume that McKelton’s

entire jury pool was tainted simply because the prospective jurors learned that

negative publicity existed. In addition, McKelton does not point to any evidence

that the venire was actually prejudiced by the voir dire on publicity. Under these

circumstances, there is no indication that any of the seated jurors were biased

against McKelton.

{¶ 88} McKelton also objects to the prosecutor’s questions about domestic

violence during group voir dire. McKelton did not object to the prosecutor’s

questions, but he now says that they unfairly influenced the entire venire. In light

of the pending domestic-violence charges, it was reasonable for the prosecutor to

inquire about the prospective jurors’ “history * * * with acts of domestic violence as

a means of determining their ability to give fair consideration to the issues that would

arise at trial.” State v. Collymore, 8th Dist. Cuyahoga No. 81594, 2003-Ohio-3328,

¶ 65. We will not presume that an entire venire is prejudiced simply because the

prospective jurors were exposed to the opinions of other veniremen. Carter at 555.

And the record does not indicate that the discussion of domestic violence actually

biased any of the jurors.

{¶ 89} For these reasons, we reject McKelton’s argument that the trial court

erred by denying his motion for individual voir dire.

b. Insufficient opportunity for voir dire

{¶ 90} McKelton also argues that defense counsel did not have a sufficient

opportunity to ensure the jurors’ impartiality.

{¶ 91} First, he says that the jury questionnaire was inadequate. At a

pretrial hearing, defense counsel requested a 12-page jury questionnaire, and the

state requested its usual 2-page questionnaire. The trial judge agreed to produce a

questionnaire “in between” the parties’ proposals. In the end, the jury

questionnaires did not address attitudes toward the death penalty.

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{¶ 92} Trial courts have discretion to determine the content of jury

questionnaires. See State v. Davie, 80 Ohio St.3d 311, 317, 686 N.E.2d 245 (1997).

Here, McKelton cannot show that the trial court’s decision to use its own

questionnaire was unreasonable, arbitrary, or unconscionable. Moreover,

McKelton has failed to establish that he was prejudiced by the omission of

questions about attitudes toward the death penalty. He does not assert that any

seated juror was predisposed to order a sentence of death.

{¶ 93} Second, McKelton claims his counsel did not have enough time to

conduct voir dire. During a pretrial hearing, defense counsel warned that it might

take two days to select a jury. The judge responded, “It will take whatever life and

time it takes.” On the morning that voir dire began, the trial judge told the venire,

“[W]e believe we’ll have a jury selected by the close of business today.” Mid-

afternoon, defense counsel thanked the prospective jurors and explained, “I know

it’s getting late, and I’m going to try to wrap this up, but I have a couple of other

things that I want to talk about * * *.” Later, after defense counsel asked his final

question, he took a moment to review his notes, then thanked the judge and jurors

for their patience. Defense counsel did not request more time, indicate that he felt

rushed, or state a desire to ask additional questions. We see no reason to conclude

that voir dire was unduly truncated.

{¶ 94} McKelton’s third proposition of law is not well taken.

B. Evidentiary Issues

1. Forfeiture by Wrongdoing: Proposition of Law No. 4

{¶ 95} In proposition of law No. 4, McKelton argues that the trial court

erred by admitting various hearsay statements by Missy Allen under the doctrine of

forfeiture by wrongdoing. According to McKelton, this alleged error violated his

rights to confrontation and due process.

{¶ 96} Forfeiture by wrongdoing has long been recognized as an equitable

exception to a defendant’s constitutional right to confront the witnesses against

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him. See Giles v. California, 554 U.S. 353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488

(2008); Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed.2d 244 (1878). Ohio

codified this doctrine in 2001 as a hearsay exception under Evid.R. 804(B)(6). To

admit statements under this exception, a prosecutor must show by a preponderance

of the evidence that (1) the defendant engaged in wrongdoing that caused the

witness to be unavailable and (2) one purpose for the wrongdoing was to make the

witness unavailable to testify. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, 926 N.E.2d 1239, ¶ 106; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,

840 N.E.2d 151, ¶ 84.

{¶ 97} Ordinarily, we review a trial court’s hearsay rulings for an abuse of

discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).

However, we review de novo evidentiary rulings that implicate the Confrontation

Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010).

a. Factual background

{¶ 98} The prosecution filed notice of its intent to offer Allen’s statements

under Evid.R. 804(B)(6) in August 2010, but the trial court did not address the

forfeiture question until the trial in October.

{¶ 99} Defense objected when the prosecutor asked his third witness,

Sherrie Bluester, the children services’ screener, what Allen had said about her

broken ankle. The prosecutor argued that Allen’s statements were admissible under

the forfeiture doctrine because he had established (1) Allen’s unavailability and (2)

that McKelton had acted with the purpose when he made her unavailable. The trial

judge overruled McKelton’s objection. The judge explained, “[T]he allegation in

this case is that this defendant murdered the victim, Ms. Allen, and I think this is

exactly what the forfeiture by wrongdoing exception is.” The defense noted a

continuing objection on this basis.

{¶ 100} The next day, the court invited the parties to more fully articulate

their positions on forfeiture by wrongdoing. Defense counsel objected that the trial

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court had not found that McKelton had made Allen unavailable with the purpose

of preventing her appearance at a trial. But the prosecutor argued that it was proper

to infer McKelton’s purpose from his history of domestic violence against Allen.

He cited Z.D.’s and T.W.’s “testimony about the pattern of abuse” and “the multiple

incidents” that they had witnessed. He also noted T.W.’s testimony that McKelton

had once snatched the phone from her after Allen had asked her to call the police.

The state contended that this evidence showed, by a preponderance of the evidence,

“that this relationship was in a dynamic of domestic violence, of a pattern of abuse

designed to isolate her and keep her from reporting to outside help.”

{¶ 101} Referring to his ruling from the previous day, the trial judge found

that the state had met its burden, given “the totality of the evidence in this particular

case.” The judge stressed that the defense could still object to Allen’s statements

on other grounds.

b. Admissibility under the Confrontation Clause

{¶ 102} McKelton claims that his confrontation rights were violated by the

admission of dozens of Allen’s statements through the testimony of her nieces, her

friends, a physical therapist, a children’s services screener, and a police officer.2

He says that these statements were not admissible under the forfeiture-by-

wrongdoing exception because the state did not establish that he had killed Allen

with the purpose of preventing her from testifying against him.

{¶ 103} The United States Supreme Court has analyzed the forfeiture

doctrine’s common-law roots and concluded that it “applie[s] only when the

defendant engaged in conduct designed to prevent the witness from testifying”

2

To the extent McKelton objects to the admission of nontestimonial hearsay, he was not entitled to

confront the declarants. See Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d

224 (2006). For example, he discusses Allen’s statements to friends and relatives. But an

unavailable witness’s “[s]tatements to friends and neighbors about abuse and intimidation” do not

implicate the confrontation clause. Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171

L.Ed.2d 488 (2008).

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about an earlier offense. (Emphasis sic.) Giles, 554 U.S. at 359, 128 S.Ct. 2678,

171 L.E.2d 488. Accordingly, “unconfronted testimony [will] not be admitted

without a showing that the defendant intended to prevent [the] witness from

testifying.” (Emphasis sic.) Id. at 361. Giles does not require that this be a

defendant’s “sole or even primary purpose,” however; it is sufficient if one purpose

for the defendant’s conduct was to make the victim unavailable, State v.

Supanchick, 323 P.3d 231, 239 (Ore.2014); see also Hand, 107 Ohio St.3d 378,

2006-Ohio-18, 840 N.E.2d 151, at ¶ 90 (interpreting Evid.R. 804(B)(6)).

(1) Accident and purpose

{¶ 104} McKelton argues that the notion of “purpose” in forfeiture analysis

is inconsistent with both the charges against him and the state’s theory of Allen’s

murder.

{¶ 105} Because the state charged McKelton with the felony murder of

Allen, R.C. 2903.02(B), predicated on an underlying offense of felonious assault,

R.C. 2903.11(A)(1), the state had to prove only that he acted knowingly in

committing the felonious assault, not purposely in killing Allen. See Fry, 125 Ohio

St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 43 (felony murder requires proof

of “the mens rea element set forth in the underlying felony offense”).

{¶ 106} But mere knowledge does not satisfy the purpose prong of the

forfeiture doctrine. Giles makes clear that the exception will not apply “in the

typical murder case involving accusatorial statements by the victim” when the

defendant has “caused a person to be absent” but did “not do[] so to prevent the

person from testifying.” 554 U.S. at 361, 128 S.Ct. 2678, 171 L.Ed.2d 488.

Instead, it applies in a murder case only if the state proves that a defendant murdered

the victim with the purpose of preventing the victim’s testimony about a separate

offense.

{¶ 107} The record does not indicate that McKelton had planned to kill

Allen on July 28, 2008, let alone to do so for a particular reason. Indeed, the state’s

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theory was that Allen’s murder “was spontaneous” and “wasn’t planned.”

Witnesses testified that McKelton killed Allen during an argument and tried to

revive her. Thus, the immediate circumstances of Allen’s death do not establish

the requisite purpose that would allow the admission of testimonial statements

because of forfeiture by wrongdoing.

(2) Domestic violence and purpose

{¶ 108} The immediate-circumstances analysis does not end the inquiry,

however, because, as the state argues, the broader circumstances—the history of

domestic violence between McKelton and Allen—support an inference of purpose

in this case.

{¶ 109} In Giles, the Supreme Court expressly “left open the possibility that

a defendant’s intention to prevent testimony might be inferred from the surrounding

circumstances, such as in a case of ongoing domestic violence.” Crawford v.

Commonwealth, 686 S.E.2d 557, 564 (Va.App.2009), aff’d 704 S.E.2d 107

(Va.2011).

{¶ 110} The court explained that “[a]cts of domestic violence” are relevant

to the purpose inquiry because they “often are intended to dissuade a victim from

resorting to outside help, and include conduct designed to prevent testimony to

police officers or cooperation in criminal prosecutions.” Giles, 554 U.S. at 377,

128 S.Ct. 2678, 171 L.Ed.2d 488. When an abusive relationship ends in murder,

“the evidence may support a finding that the crime expressed the intent to isolate

the victim and to stop her from reporting abuse to the authorities or cooperating

with a criminal prosecution—rendering her prior statements admissible under the

forfeiture doctrine.” Id. Hence, in deciding whether the forfeiture exception

applies, courts should regard as “highly relevant” any evidence of past abuse (or

threats) designed to discourage a victim from seeking outside help, as well as

evidence of ongoing criminal proceedings where the victim was expected to testify.

Id.

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{¶ 111} Evidence of domestic violence is “highly relevant” to analyzing the

purpose prong of the forfeiture exception. Giles at 377; see also, e.g., State v.

McLaughlin, 265 S.W.3d 257, 272 (Mo.2008); People v. Banos, 178 Cal.App.4th

483, 491-492, 100 Cal.Rptr.3d 476 (2009).

{¶ 112} McKelton argues that there is insufficient evidence of domestic

violence in this case. The record does not indicate that Allen ever reported domestic

abuse to police or that she was expected to testify against McKelton in a pending

criminal proceeding when she died. Cf. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017,

926 N.E.2d 1239, at ¶ 108-109; McLaughlin at 272.

{¶ 113} Even so, purpose can be inferred from the evidence in this case.

Allen’s nieces, who lived with McKelton and Allen, both testified about

McKelton’s abuse of Allen. And T.W. specifically testified that McKelton took the

phone away from her when Allen asked her to call 9-1-1. When Z.D. did call 9-1-

1 on the night that Allen broke her ankle, McKelton was enraged. Thus, although

Allen had not formally contacted police, her nieces’ testimony indicates that

McKelton was trying to isolate Allen and prevent her from talking to authorities.

{¶ 114} For these reasons, the admission of Allen’s statements did not

violate Giles’s purpose requirement and we reject proposition of law No. 4.

2. Impeachment of Gerald Wilson: Proposition of Law No. 6

{¶ 115} In proposition of law No. 6, McKelton argues that the trial court

erred by permitting the state to impeach its own witness, Gerald Wilson, with his

prior inconsistent statement and by admitting extrinsic evidence of that prior

statement. McKelton also argues that the prosecutor improperly relied on Wilson’s

prior statement as substantive evidence of his guilt.

a. Factual background

{¶ 116} Wilson gave a police statement in January 2009 in which he said

that he had heard McKelton admit to choking Allen. McKelton also threatened that

if Wilson said anything, he would “end up like Mick did.”

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{¶ 117} When the state called Wilson to testify, he denied or claimed not to

recall having made the statements. When pressed, he broadly asserted that he did not

know anything about the matter. Finally, he admitted that he had spoken to police,

but then claimed that police had falsified the transcript of his statement. He insisted

that he had been lying and that police were telling everyone to lie about McKelton.

Over defense objection, the state played an audio recording of Wilson’s police

interview.

{¶ 118} After Wilson left the stand, the prosecutor asserted that he had been

“shocked and surprised” by his recantation. The prosecutor stated that he had

personally interviewed Wilson and that his representations had been consistent with

his police statement. The trial judge found that “there were surprises and

affirmative damage,” which allowed the state to impeach Wilson under Evid.R.

607. The next day, the state sought to admit Wilson’s statement as an exhibit. The

trial court sustained a defense objection.

b. Application of Evid.R. 607(A)

{¶ 119} Evid.R. 607(A) authorizes a party to impeach its own witness “by

means of a prior inconsistent statement only upon a showing of surprise and

affirmative damage.” We review a trial court’s application of this rule for an abuse

of discretion. Davie, 80 Ohio St.3d at 323, 686 N.E.2d 245.

{¶ 120} “Surprise” occurs when a witness’s testimony materially differs

from a prior statement and counsel had no reason to believe that the witness would

testify as he did at trial. See id.; Ferguson Realtors v. Butts, 37 Ohio App.3d 30,

33, 523 N.E.2d 534 (12th Dist.1987); State v. Blair, 34 Ohio App.3d 6, 9, 516

N.E.2d 240 (8th Dist.1986). Here, the prosecutor said he was “shocked and

surprised” when Wilson’s trial testimony materially differed from his statement to

police. Under these circumstances, the trial court reasonably found that the state

was surprised by the witness’s testimony.

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{¶ 121} The “affirmative damage” requirement is satisfied if a “party’s own

witness testifies to facts that contradict, deny, or harm that party’s trial position.”

Blair at 9; see also Ferguson Realtors at 33. Wilson said that police had asked

him—and other witnesses—to lie. This potentially undermined the testimony of

several crucial state witnesses who had testified that they had heard McKelton

confess to one or both murders. Given that the prosecutor did not have any

eyewitnesses, the trial court reasonably found that Wilson’s testimony affirmatively

damaged the state’s case.

{¶ 122} McKelton also objects that the state did not establish surprise and

affirmative damage before impeaching Wilson. The defense did not object to the

state’s examination of Wilson until the state announced that it would like to play a

recording of his January statement. At that time, the trial court invoked Evid.R.

607(A) to overrule the defense objection and allowed the state to play the recording.

On this record, we hold that the requirements of Evid.R. 607 were satisfied.

{¶ 123} Furthermore, McKelton cannot demonstrate any plain error in the

state’s questioning of Wilson before the defense objected at trial. See State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The state’s questions laid

the necessary foundation for introducing extrinsic evidence of Wilson’s prior

statement under Evid.R. 613. And these questions did not alter the outcome of

McKelton’s trial.

{¶ 124} In short, the trial court did not abuse its discretion by allowing the

prosecutor to impeach Wilson with his prior inconsistent statement.

c. Extrinsic evidence of Wilson’s prior statement

{¶ 125} McKelton also claims that by permitting the state to play an audio

recording of Wilson’s prior statement, the trial court contravened State v. Ballew,

76 Ohio St.3d 244, 667 N.E.2d 369 (1996), which prohibits reading a witness’s prior

statement to the jury. But Ballew involved only the reading of a prior statement to

refresh a witness’s recollection under Evid.R. 612. Id. at 254. By contrast, Evid.R.

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613 specifically contemplates the admission of extrinsic evidence of a prior

statement under the circumstances outlined in Evid.R. 613(B). Ohio courts have

regularly applied the rule to admit a witness’s prior inconsistent statement for

impeachment purposes. See, e.g., State v. Fisher, 8th Dist. Cuyahoga No. 83098,

2004-Ohio-3123, ¶ 14; State v. Schaffer, 114 Ohio App.3d 97, 102, 682 N.E.2d

1040 (3d Dist.1996).

{¶ 126} McKelton does not dispute that the state satisfied the requirements

of Evid.R. 613. The state laid the proper foundation before playing the recording,

and the contents of Wilson’s statement went to a fact of consequence to the action:

his testimony presented a conflict with his prior statement about whether McKelton

had confessed or police were manufacturing a case against him. Thus, the trial

court did not abuse its discretion by permitting the state to play the recording for

the jury.

d. Wilson’s statement as evidence of McKelton’s guilt

{¶ 127} Finally, McKelton argues that the state improperly relied on

Wilson’s prior statement as substantive evidence of McKelton’s guilt. As a result,

he asserts that there is a “grave risk” that he was convicted based on unsworn

testimony, in violation of the Fifth, Sixth, and Fourteenth Amendments.

{¶ 128} As a general rule, “prior inconsistent statements constitute hearsay

evidence and thus are admissible only for the purpose of impeachment.” 1 Gianelli,

Evidence, Section 607.4, at 482-483 (3d Ed.2010); see also id., Section 613.3, at

591. Accordingly, unless another hearsay exception applies, a party may not

interrogate his own witness about a prior inconsistent statement “ ‘for the purpose

of offering substantive evidence against the accused.’ ” State v. Dick, 27 Ohio St.2d

162, 165, 271 N.E.2d 797 (1971), quoting State v. Duffy, 134 Ohio St. 16, 15 N.E.2d

535 (1938), paragraph two of the syllabus. Further, the prosecutor must not refer

to such statements for their truth during closing argument. State v. Richcreek, 196

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Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 54 (6th Dist.), quoting State

v. Kirk, 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, ¶ 28.

{¶ 129} During closing argument, the prosecutor did cite Wilson’s prior

inconsistent statement as substantive evidence of McKelton’s guilt. But because

McKelton did not request a limiting instruction or otherwise object, plain-error

review applies. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565,

¶ 91.

{¶ 130} Given the state’s reliance on Wilson’s prior statement as

substantive evidence and the lack of a limiting instruction, the jury may have

considered the unsworn testimony in support of its conviction of McKelton. But

the error was not outcome-determinative, because Wilson was not the only person

to hear McKelton confess to the murder of Allen or Evans. Sheridan Evans, Marcus

Sneed, and Charles Bryant all testified that he had implicated himself in Allen’s

death. And Sneed, Bryant, and Lemuel Johnson all testified that McKelton

implicated himself in Evans’s death.

{¶ 131} For these reasons, we reject proposition of law No. 6.

3. Testimony of Crystal Evans: Proposition of Law Nos. 10 and 11

{¶ 132} The prosecutor questioned Crystal about her March 2, 2009 police

statement and about some of her phone calls and correspondence with McKelton

during the months before trial. The trial court admitted a complete transcript of the

police interview, recordings of the phone calls, and the letters into evidence. In

proposition of law No. 10, McKelton argues that this violated his right to a fair trial,

due process, a reliable determination of guilt, and a reliable sentence. He also

contends, in proposition of law No. 11, that it was improper to admit statements

that had been made by detectives during the interview.

{¶ 133} McKelton did not request limiting instructions or object at trial, so

plain-error review applies. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240.

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a. Impeachment of Crystal

{¶ 134} McKelton argues that it was improper to rely on Crystal’s prior

statement to impeach her testimony on direct examination. The state counters that

its use was proper to demonstrate McKelton’s “prior planning to escape criminal

liability for Germaine Evans’s death.”

{¶ 135} Prosecutors may elicit testimony on direct examination that the

defendant asked a witness “to fabricate an alibi for him,” Commonwealth v. Young,

561 Pa. 34, 61-62, 748 A.2d 166 (2000), because such evidence “strongly indicates

consciousness of guilt.” State v. Campbell, 69 Ohio St.3d 38, 47, 630 N.E.2d 339

(1994). Although the state did not elicit such testimony here, it did have a

reasonable basis for probing Crystal to determine whether her inconsistencies were

a product of McKelton’s coaching; a letter and a jailhouse phone call suggested that

he had coached her about an alibi. And because Crystal provided McKelton’s alibi,

the state was entitled to question her about the timing of McKelton’s and her own

movements on February 27, 2009.

b. Extrinsic evidence of Crystal’s statements to police

{¶ 136} McKelton also argues that there was no evidentiary basis for the

trial court to admit extrinsic evidence of Crystal’s March statements to police.

{¶ 137} Crystal’s prior out-of-court statement would generally be

inadmissible for the truth of the matter asserted. Evid.R. 801(C) and 802. The state

contends that her statements are nonhearsay because they indicate consciousness of

guilt by confirming that McKelton encouraged her to provide a false alibi. But

nothing in Crystal’s statements, or in her responses to inquiries about them at trial,

indicates that McKelton had asked her to lie. Therefore, the state has not identified

a legitimate nonhearsay purpose.

{¶ 138} The state has not identified any other hearsay exemption or

exception that would apply to Crystal’s statements. They were not admissible as

prior inconsistent statements under Evid.R. 607(A), so extrinsic evidence of them

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does not fall under Evid.R. 613(B). And although the state used Crystal’s earlier

statements to refresh her recollection, that entitled the defense—not the state—to

admit the transcript of her statements. See Evid.R. 612. As a result, the trial court

erred by admitting Crystal’s statements.3

{¶ 139} Even so, McKelton cannot establish that but for this error, the

outcome of the trial “clearly would have been otherwise.” State v. Mammone, 139

Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. Ultimately, McKelton’s

whereabouts on the night of Evans’s murder were not crucial because the state

advanced the theory throughout the trial that he had enlisted someone else to kill

Evans. Indeed, in his own brief, McKelton concedes that “[w]hether [he] was at

[Crystal’s] apartment on the night of Germaine’s death is insignificant.” Thus, the

error did not affect McKelton’s substantial rights. See Crim.R. 52(B).

c. Police statements during Crystal’s interview

{¶ 140} McKelton also objects to the admission of the transcript of

Crystal’s police interview because it included inadmissible hearsay statements

made by Detectives Luke and Witherell. During the interview, the detectives told

Crystal that McKelton had abused Allen, severely beat the mothers of his daughters,

and abused other women. They also indicated that they had evidence that Evans

was in a car with McKelton around 9:00 p.m. on the night he died. And they tried

to undermine Crystal’s claim that McKelton had been with her the entire night of

Evans’s murder, stating that Crystal had told her mother otherwise.

{¶ 141} The state argues that these statements were admissible because they

were “actually questions, designed to elicit a response from Crystal Evans.” But

here the detectives’ “questions” incorporated numerous assertions about McKelton.

And the state does not argue that they were admissible solely for a nonhearsay

purpose, such as providing context for Crystal’s responses. Cf. State v. Keene, 9th

3

In light of this conclusion, we need not separately analyze McKelton’s claim that this evidence

violated Evid.R. 403.

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Dist. Lorain No. 06CA8880, 2006-Ohio-6676, ¶ 24 (holding that “the State did not

introduce the questions posed by the officer for the truth contained in those

statements” when the state had “asserted that the statements were necessarily

included to give context to the answers given by appellant”).

{¶ 142} Because the transcript “was admitted for all purposes, including the

truth of the matter stated, the detective[s’] statements were also hearsay.” Lampkins

v. State, 778 N.E.2d 1248, 1251-1252 (Ind.2002). The jurors had no way to know

that the “statements were not evidence” or that the officers’ representations to

Crystal may not have been entirely truthful. Id. at 1252; see also State v. Craycraft,

147 Ohio Misc.2d 5, 2008-Ohio-2192, 889 N.E.2d 1110, ¶ 22 (Clermont C.P.). “It

[was] error to admit statements by an interrogating officer without any limiting

instruction or admonishment.” Lampkins at 1252.4

{¶ 143} Even so, McKelton cannot establish that the error affected his

substantial rights. The jury heard independent evidence of the detectives’ assertions

at trial, with the exception of Luke’s statement that McKelton had abused other

women. And even that statement was not outcome-determinative in light of the

ample additional evidence supporting McKelton’s convictions.

d. Admission of recordings and letters

{¶ 144} McKelton also claims that the trial court violated Evid.R. 403 by

admitting recordings of his jailhouse phone calls with Crystal and his letters to her.

All relevant evidence is admissible, Evid.R. 402, unless its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, Evid.R. 403(A).5

4

These statements do not raise confrontation concerns because Luke and Witherell both testified

during the state’s case-in-chief. “[W]hen the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn.9.

5

McKelton repeatedly asserts that “heightened scrutiny” applies to Evid.R. 403 objections in capital

cases. But the case he cites for this proposition establishes a more exacting standard for the

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{¶ 145} In the recording of the first call admitted, McKelton explained the

police’s theory of Evans’s murder and asked Crystal why she had left police a

voicemail suggesting that he arrived home after 10 p.m. on February 27. In the

second call, he and Crystal argued loudly, and he scolded, “I wonder why you making

these stupid decisions.” These conversations are highly probative of McKelton’s

efforts to establish an alibi and to monitor Crystal’s exchanges with police, and their

probative value is not substantially outweighed by the danger of unfair prejudice.

{¶ 146} The content of the letters was also more probative than unfairly

prejudicial. The four letters introduced during Crystal’s testimony supported the

state’s theory that McKelton was trying to persuade her to lie for him at trial. In

one, he proposes to Crystal and discusses his plans to marry her. In another, he

teaches her a secret code and discusses his desire for a venue change due to

publicity. In yet another, he says he wants to drum up media attention and suggests

publicly posting witness names, arguably as a scare tactic. And in the last, he notes

that he has reviewed evidence that Evans died at 10:00 p.m. and reminds Crystal

that they were “home asleep at ten.” The trial court did not err by admitting this

evidence.

{¶ 147} For these reasons, we reject proposition of law No. 10.

4. Audrey Dumas as a Witness Identified with an Adverse Party:

Proposition of Law No. 7

{¶ 148} In proposition of law No. 7, McKelton argues that his due-process

rights were violated when the trial court allowed the state to treat Audrey Dumas

as a witness identified with an adverse party and permitted excessive, leading

questions.

admission of gruesome photographs in capital cases, not for the admission of all evidence in capital

cases. See State v. Morales, 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267 (1987). This court has

declined to extend Morales beyond the context of gruesome photographs. See Mammone, 139 Ohio

St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 130.

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a. Factual background

{¶ 149} Before Dumas began testifying, the state sought leave to use

leading questions under Evid.R. 611(C) because she was “identified with the

adverse party in this case.” After requiring the state to establish Dumas’s

relationship with McKelton, the trial court granted the state’s request.

b. Determination that Dumas was identified with an adverse party

{¶ 150} Evid.R. 611(C) generally prohibits the use of leading questions on

direct examination. However, they are permitted “[w]hen a party calls a hostile

witness, an adverse party, or a witness identified with an adverse party.” Id. We

review a trial court’s application of this rule for an abuse of discretion. Ramage v.

Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 111, 592 N.E.2d 828 (1992).

{¶ 151} Here, the record supports the trial court’s finding that Dumas was

identified with McKelton. Dumas testified that they had ended a six-year romantic

relationship earlier that year, and they were still close. She visited McKelton in

jail, sent him money, exchanged letters with him, and spoke to him on the

telephone. Indeed, she had even spoken with him since his trial began four days

earlier.

{¶ 152} McKelton argues that even if his relationship to Dumas was

sufficient to establish that she was identified with him, to establish adversity, the

prosecutor also had to show that Dumas was evasive. But evasiveness is not a

prerequisite to finding adversity. Instead, it is generally relevant to assessing

whether a witness is hostile, an entirely separate basis for permitting leading

questions under Evid.R. 611(C). See Weissenberger, Ohio Evidence: 1991

Courtroom Manual (1991) 170 (“A hostile witness is one who is so evasive or

uncooperative on examination that his testimony is impeded”).

{¶ 153} Thus, the trial court reasonably found that Dumas was a witness

identified with an adverse party.

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c. The state’s questions

{¶ 154} McKelton alternatively argues that the state “used excessive

leading questions to improperly put words in [Dumas’s] mouth and place improper

insinuations before the jury.”6 Because McKelton did not raise this objection at

trial, we review for plain error.

{¶ 155} On direct examination, the prosecutor inquired about the following:

(1) whether Dumas had given McKelton money in the past and whether she had set

up robbery victims for him, (2) her date with McKelton on the evening of Allen’s

death, (3) her interaction with McKelton after Allen’s body was found, and (4)

McKelton’s request that she speak to his attorney about his alibi a few weeks after

Allen’s death. Throughout the questioning, the prosecutor expressed disbelief that

Dumas had never asked McKelton whether he killed Allen. He also tried to

establish that Dumas had, at McKelton’s request, texted and called McKelton on

the night of Evans’s murder to establish an alibi for him.

{¶ 156} McKelton first claims that the prosecutor used “excessive” leading

questions. But a party is permitted to ask leading questions under Evid.R. 611(C),

and there is no limit on the number of leading questions the party may ask.

{¶ 157} Second, although McKelton claims that the prosecutor “improperly

put words in Dumas’[s] mouth,” Dumas often refused to answer questions with a

simple “yes” or “no.”

{¶ 158} Third, McKelton claims that the questions amounted to “improper

insinuations.” “Prosecutors must avoid insinuations and assertions calculated to

mislead. * * * [T]hey may not allude to matters not supported by admissible

evidence.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). Although

the state’s questions did imply that the alibis were not credible and the prosecutor

6

McKelton also asserts that “the State used Dumas” to present “highly inflammatory evidence that

should have been excluded under Evid.R. 403(A).” But he does not identify the evidence he deems

inflammatory and thus has not meaningfully presented this claim for review.

38

January Term, 2016

argued in closing that McKelton asked Dumas to provide an alibi for both nights,

there is no indication that these questions were calculated to mislead the jury or

were unsupported by a factual predicate.

{¶ 159} We reject proposition of law No. 7.

5. Domestic-Violence Expert: Proposition of Law No. 14

{¶ 160} In proposition of law No. 14, McKelton argues that the state’s

expert testimony about domestic violence was inadmissible because the defense

had not challenged the credibility of the victim. He further argues that the expert

impermissibly testified about Allen’s specific characteristics rather than about

characteristics of domestic-violence victims generally.

{¶ 161} Expert-witness testimony is generally admissible “if it will assist

the trier of fact in search of the truth.” State v. Koss, 49 Ohio St.3d 213, 216, 551

N.E.2d 970 (1990). Evid.R. 702 permits a witness to testify as an expert if (1) the

“testimony either relates to matters beyond the knowledge or experience possessed

by lay persons or dispels a misconception common among lay persons,” (2) the

witness “is qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony,” and (3) the

“testimony is based on reliable scientific, technical, or other specialized

information.” We review a trial court’s admission of expert testimony for an abuse

of discretion. State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91,

¶ 50. Although Allen was deceased, the state presented a theory that domestic abuse

had occurred even though Allen had not reported it. This expert testimony met the

Koss test of assisting the trier of fact to determine a material issue.

{¶ 162} Over repeated objections, Margene Robinson, a retired police

lieutenant who had supervised the Domestic Violence Unit in the Dayton Police

Department, testified as a domestic-violence expert during the state’s case-in-chief.

She described the three phases of a cycle of domestic violence: (1) the tension-

building phase, when economic or domestic issues arise or the abuser makes

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accusations, (2) the battering phase, when the perpetrator engages in verbal, sexual,

or physical abuse, and (3) the honeymoon phase, when the abuser expresses

remorse and may promise to change. She added that after the third phase, the cycle

begins again. Domestic violence is about asserting “power over the victim * * * and

control,” and many victims are reluctant to leave an abusive relationship because of

religious beliefs, shame, or fears of retaliation, she testified.

{¶ 163} McKelton argues that Robinson exceeded the established limits for

expert testimony about domestic violence. This court has affirmed the use of expert

testimony about battered-women’s syndrome, but only if “ ‘there is some evidentiary

foundation that a party or witness to the case is a battered woman, and that party or

witness has behaved in such a manner that a jury would be aided by expert testimony

providing an explanation for the behavior.’ ”7 Id. at ¶ 46, quoting State v. Borrelli,

227 Conn. 153, 172, 629 A.2d 1105 (Conn.1993), fn. 15.

{¶ 164} The state offered Robinson’s testimony about the cycle of domestic

violence to explain how Allen’s failure to report McKelton could be consistent with

other evidence of abuse. And the state established an adequate foundation for this

testimony by presenting evidence that McKelton and Allen were in a cycle of

domestic violence. See Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d

91, at ¶ 48 (“Evidence generally establishing the cycles of a battering relationship

is an appropriate foundation for battered-woman-syndrome expert testimony”).

Thus, Robinson’s testimony was both relevant and predicated upon a proper

foundation.

{¶ 165} Regarding McKelton’s assertion that Robinson improperly testified

about Allen’s specific characteristics, we note that although Robinson indicated

some familiarity with Allen’s background, she did not opine that Allen was a

7

Experts often use the term “battered woman syndrome” to refer to “both the psychological effects

of domestic violence and the dynamics of abusive relationships.” Dutton, Understanding Women’s

Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L.Rev.

1191, 1195 (1993), fn. 14.

40

January Term, 2016

victim. Her testimony about women bearing certain characteristics dispelled a

common misperception—echoed in McKelton’s own brief to this court—that there

is a “stereotypical victim of domestic violence.” Through Robinson, the state

established that domestic violence can affect unlikely victims.

{¶ 166} Finally, McKelton argues that Robinson’s testimony violated

Evid.R. 403 because it was tainted by her knowledge of the facts in this case.

Robinson testified that before trial, she had reviewed some of Allen’s writings and

a letter to Allen from McKelton. McKelton reasons that Robinson’s reference to

these materials implied that Robinson “was called because the materials’ contents

revealed incidents of domestic violence.”

{¶ 167} Robinson did not need to review this information—or to mention it

at trial—in order to testify generally about domestic violence. But the record in no

way suggests that these materials affected her testimony; she testified that her

knowledge was derived from domestic-violence literature and her own experience.

Ideally, the trial court should have instructed the jury on the limits of Robinson’s

testimony to eliminate any possible confusion, see Haines, 112 Ohio St.3d 393,

2006-Ohio-6711, 860 N.E.2d 91, at ¶ 57, but even so, we cannot conclude that the

trial court abused its discretion by denying McKelton’s motion “to strike all of her

testimony.” (Emphasis added.)

{¶ 168} For these reasons, we reject proposition of law No. 14.

6. Cross-Examination of Informants: Proposition of Law No. 9

{¶ 169} In proposition of law No. 9, McKelton claims that the trial court

improperly limited his cross-examination of three incarcerated informants: Charles

Bryant, Lemuel Johnson, and Marcus Sneed. McKelton says that the jury was “not

able to thoroughly judge [their] credibility” because he did not get to adequately

question them about their motives for testifying about his statements implicating

himself in the murders of Allen and Evans.

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a. Scope of the right to cross-examine a witness

{¶ 170} The Sixth Amendment to the U.S. Constitution gives a defendant

the right “to be confronted with the witnesses against him.” See also Ohio

Constitution, Article I, Section 108 (“the party accused shall be allowed * * * to

meet the witnesses face to face”). But this protection “guarantees only ‘an

opportunity for effective cross-examination.’ ” (Emphasis in original.) State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). Trial

courts have “wide latitude * * * to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431,

89 L.Ed.2d 674 (1986).

{¶ 171} Similarly, Evid.R. 611(B) requires trial courts to permit “[c]ross-

examination * * * on all relevant matters and matters affecting credibility.”

However, under Evid.R. 611(A), a trial court “shall exercise reasonable control

over the mode and order of interrogating witnesses and presenting evidence.”

{¶ 172} When a defendant challenges a trial court’s limitation on cross-

examination on appeal, the standard of review turns on the nature of the limitation.

“Limitations * * * that deny a defendant ‘the opportunity to establish that the

witnesses may have had a motive to lie’ infringe on core Sixth Amendment rights”

and are reviewed de novo. (Emphasis sic.) State v. Gonzales, 151 Ohio App.3d

160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 45 (1st Dist.), quoting United States v.

Nelson, 39 F.3d 705, 708 (7th Cir.1994). To establish a confrontation violation,

then, McKelton must show that he was “prohibited from engaging in otherwise

appropriate cross-examination.” Van Arsdall at 680. But if a trial court “allow[ed]

8

“Section 10, Article I provides no greater right of confrontation than the Sixth Amendment * * *.”

State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990).

42

January Term, 2016

cross-examination to expose a motive to lie,” then “it is of peripheral concern to

the Sixth Amendment how much opportunity defense counsel gets to hammer that

point home to the jury.” Nelson at 708. Under those circumstances, the extent of

cross-examination is within the sound discretion of the trial court. State v.

Freeman, 7th Dist. Jefferson No. 07JE5, 2008-Ohio-2925, ¶ 12, citing State v.

Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). To prove a violation of

Evid.R. 611, McKelton must demonstrate that the trial court’s limitation on cross-

examination was “unreasonable, arbitrary or unconscionable.” Freeman at ¶ 12.

b. Charles Bryant

{¶ 173} On direct examination, Bryant stated that he was willing to

cooperate with police out of self-interest, but he denied that he had been promised

anything specific. On cross-examination, the defense established that Bryant had a

prior felonious-assault conviction and had been awaiting trial for felonious assault

and other offenses for 14 months. He admitted that his trial had been continued

“[r]oughly maybe four times” but denied that it had been continued “to see how

[his] testimony goes in [McKelton’s] case.” His attorney had advised him,

however, that testifying against McKelton might help Bryant in his case.

{¶ 174} The trial court sustained objections to two defense questions: how

many times Bryant’s pending case had been set for trial and whether he had been

charged with trafficking. See Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, 89

L.Ed.2d 674. The jurors already knew that Bryant was awaiting trial on felony

offenses and that his trial had been continued until after he testified in McKelton’s

case, which “adequately established [his] motive to lie.” State v. Reed, 10th Dist.

Franklin No. 09AP-84, 2009-Ohio-6900, ¶ 11. The trial court did not violate

McKelton’s confrontation rights or Ohio’s evidentiary rules by sustaining

objections to these questions.

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c. Lemuel Johnson

{¶ 175} Johnson testified that he had been incarcerated on a federal cocaine-

possession charge for about a year and would be sentenced about a month after

McKelton’s trial. But Johnson insisted that he did not expect his testimony against

McKelton to help him at sentencing. He explained that he had not told police about

his conversations with McKelton until he was locked up on this charge because he

had assumed that “everybody in Cincinnati knew” already. He also told the jury

about his prior convictions.

{¶ 176} On cross-examination, the trial judge sustained an objection to

questioning as asked and answered when defense counsel repeatedly questioned

Johnson about why Johnson thought his testimony would matter now. The jury had

ample information to evaluate Johnson’s motives to testify; it had been told that he

was incarcerated and would soon be sentenced. See Tansley, 986 F.2d at 886; Reed,

2009-Ohio-6900, at ¶ 11. Repetition would have given the jury no greater

information from which to form a different impression of his credibility.

d. Marcus Sneed

{¶ 177} Sneed did not speak to police until he was jailed on federal

conspiracy charges. He said that McKelton’s admissions had long weighed on his

conscience, but that he had been too worried for his family’s safety to say anything

until McKelton was locked up.

{¶ 178} Sneed had been in federal custody for 13 or 14 months on a drug-

conspiracy charge at the time of McKelton’s trial. He expressed uncertainty about

whether he was facing a lengthy sentence, but admitted that he was being held

without bond and had prior convictions in Ohio. He also admitted that his sentencing

had been continued until after he testified at McKelton’s trial, but said he did not

know why. He insisted that he was not testifying with an eye to his upcoming

sentencing hearing.

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{¶ 179} The trial court sustained objections when defense counsel

repeatedly questioned Sneed about the timing of his continuance, even after Sneed

had answered. The trial court also sustained objections to inquiry into how many

counts Sneed was facing and privileged attorney-client communications. The jury

had sufficient information to evaluate Sneed’s credibility, however. See Reed,

2009-Ohio-6900, at ¶ 11; Tansley, 986 F.2d at 886. Thus, cross-examination was

not improperly curtailed.

{¶ 180} For these reasons, we reject proposition of law No. 9.

7. Other Hearsay and Confrontation Challenges: Proposition of Law No. 11

{¶ 181} In proposition of law No. 11, McKelton argues that the admission

of hearsay evidence violated the Rules of Evidence and the Confrontation Clause.

We will not reverse a trial court’s ruling on evidentiary issues absent an abuse of

discretion and proof of material prejudice. See State v. Belton, __ Ohio St.3d __,

2016-Ohio-1581, __ N.E.3d ¶ 116.

a. “He choked her mother with a phone cord”

{¶ 182} Over objection, the prosecutor played a recording of a May 4, 2008

conversation between Z.D., Allen’s niece, and a 9-1-1 dispatcher. On the

recording, Z.D. related a statement by an out-of-court declarant, McKelton’s

daughter, who had “warned [her] about [McKelton], ’cause she said that he choked

her mother with a phone cord.”

{¶ 183} The statement by McKelton’s daughter is hearsay within hearsay,

which “is not excluded under the hearsay rule if each part of the combined

statements conforms with an exception to the hearsay rule provided in the [Ohio

Rules of Evidence].” Evid.R. 805. Z.D.’s out-of-court statements on the 9-1-1

recording were admissible under the excited-utterance or state-of-mind hearsay

exceptions. See Evid.R. 803(2) and (3). But the record does not indicate that

McKelton’s daughter described the phone-cord incident to Z.D. while “under the

stress of excitement caused by the event.” Evid.R. 803(2). Nor does it show that

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the statement went to McKelton’s daughter’s “then existing state of mind, emotion,

[or] sensation” about the incident. Evid.R. 803(3); 1980 Staff Notes, Evid.R.

803(3) (state-of-mind exception “does not include statements of belief of past

events” because doing so “would negate the entire proscription against hearsay

evidence”). The state has not identified any other hearsay exception that would

permit this statement, and this evidence should have been excluded.9

{¶ 184} Even so, McKelton was not materially prejudiced by the error.

Belton, __ Ohio St.3d __, 2016-Ohio-1581, __ N.E.3d ___, at ¶ 116. The trial judge

here expressly admonished the jurors not to consider anything in the 9-1-1 tape for

its truth; they were permitted to consider the recording only as evidence of Z.D.’s

“emotions and state of mind at the time” she called 9-1-1. This instruction

significantly minimized any potential harm to McKelton. In addition, the jury

heard far more prejudicial evidence from other witnesses that McKelton had choked

women, specifically Allen, in the past. Under these circumstances, the error in

admitting the phone-cord statement was harmless beyond a reasonable doubt. See

Crim.R. 52(A); State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d

1153, ¶ 28-29.

{¶ 185} McKelton also cannot establish a confrontation-clause violation.

Only testimonial hearsay implicates the Confrontation Clause. Davis, 547 U.S.

813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224. “[T]estimonial statements are those

made for ‘a primary purpose of creating an out-of-court substitute for trial

testimony.’ ” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930,

¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d

93 (2011). But “[s]tatements to friends and neighbors about abuse and

intimidation” are nontestimonial. Giles, 554 U.S. at 376, 128 S.Ct. 2678, 171

9

Given this conclusion, we need not consider McKelton’s alternative arguments that the statement

violated Evid.R. 403 or 404.

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L.Ed.2d 488. Here, the statement from McKelton’s daughter to Z.D. was

nontestimonial, and therefore no Sixth Amendment violation occurred.

b. Hearsay to describe a subsequent investigative step

{¶ 186} Two detectives related hearsay, over objection, while testifying

about their investigations of Allen’s murder. A law-enforcement officer can testify

about a declarant’s out-of-court statement for the nonhearsay purpose of explaining

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

401 (1980). Testimony offered to explain police conduct is admissible as

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

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

value of the statements is not substantially outweighed by the danger of unfair

prejudice, and (3) “the statements cannot connect the accused with the crime

charged.” State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181,

¶ 27. If testimony qualifies as nonhearsay, it does not implicate the Confrontation

Clause. Crawford, 541 U.S. at 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, fn. 9, citing

Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).

{¶ 187} Detective Witherell testified that during the Evans investigation, he

was told that on the night he disappeared, Evans got into a car with Donte Terry in

downtown Cincinnati. As a result, Witherell interviewed Terry and obtained his

DNA sample. The rumor was not inadmissible hearsay because the state did not

offer the statement for its truth. Witherell related the rumor only to explain how

his investigation progressed (and why police had tested Terry’s DNA). See Ricks

at ¶ 27; Thomas at 232. The trial judge instructed the jury not to rely on the rumor

for its truth. And contrary to McKelton’s assertions, the prejudicial impact of this

evidence did not outweigh its probative value. Evid.R. 403.

{¶ 188} Detective Luke explained why she began to look for Evans in

connection with the investigation of Allen’s death. She stated that she had gotten

a new lead on Evans in February 2009. Before Luke described what she heard, the

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trial court emphasized to the jurors that they should not take her testimony for its

truth and that it was being offered only to explain her state of mind. Luke then

testified that she had heard that Evans “was present during Missy’s homicide, that

he knew about it and that he was scared and that he may have either helped move

the body or that he was present in the house when Missy was killed.” This

information prompted Luke to call Crystal in an effort to locate Evans.

{¶ 189} Luke’s testimony violated Ricks because it went beyond the

nonhearsay purpose of explaining why she was trying to locate Evans; her

testimony also supported the state’s theory that McKelton killed Evans because he

had witnessed Allen’s murder. Viewed for its truth, Luke’s statement connected

the two deaths. As a result, McKelton was entitled to confront the informant who

gave Luke the information.

{¶ 190} Even so, the error was harmless beyond a reasonable doubt. See

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

also State v. Jordan, 9th Dist. Summit No. 27005, 2014-Ohio-2857, ¶ 8-11

(evidence violated Ricks, but error was harmless beyond a reasonable doubt). The

trial judge instructed the jurors not to consider this part of Luke’s testimony for its

truth, and we presume that they followed the instruction. See State v. Loza, 71 Ohio

St.3d 61, 79, 641 N.E.2d 1082 (1994). Moreover, viewed alongside the state’s

other evidence against McKelton, we do not see a “ ‘reasonable possibility that the

evidence * * * might have contributed to the conviction.’ ” Chapman at 24, quoting

Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct.229, 11 L.Ed.2d 171.

c. Statements by spectators at Inwood Park

{¶ 191} Detective Karaguleff testified about statements he heard at Inwood

Park when the police were investigating the discovery of a body, later identified as

Evans. He said that Evans’s mother and family members, who insisted that the

victim was Evans, “believed that he was killed by his friend, Calvin McKelton

* * * because he helped move that lawyer’s body.” According to Karaguleff, the

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spectators made these statements in an “emotional” state; “[s]ome were crying,”

and they were “yelling, screaming, wailing.” Because McKelton did not raise

hearsay and confrontation-clause objections at trial, he has waived all but plain

error. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240.

{¶ 192} It is unclear whether these statements were admissible under the

excited-utterance exception in Evid.R. 803(2) or whether they violated McKelton’s

confrontation rights, because the record does not indicate whether the bystanders

spoke spontaneously, provided this information in response to police questioning,

or even had any firsthand knowledge regarding the location or identity of the body,

let alone the cause of death. But even assuming that a confrontation-clause

violation occurred, the error was harmless because “the probable impact” of the

statements “on the minds of an average jury” was negligible. Harrington v.

California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The jurors

heard other witnesses testify that McKelton had admitted killing Evans because he

had witnessed Allen’s murder. Thus, “there is [no] reasonable possibility that the

improperly admitted evidence contributed to the conviction,” and so the alleged

confrontation error was harmless beyond a reasonable doubt. Schneble v. Florida,

405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). For the same reason, the

admission of these statements did not rise to the level of plain error.

{¶ 193} Proposition of law No. 11 fails.

8. Irrelevant and Prejudicial Evidence: Proposition of Law No. 5

{¶ 194} In his fifth proposition of law, McKelton argues that the state

violated his constitutional rights by introducing numerous pieces of irrelevant and

prejudicial evidence, as well as character evidence, at trial, in violation of Evid.R.

403 and 404. Unless otherwise noted, McKelton did not object to this evidence at

trial, so we review his claims for plain error. See Barnes, 94 Ohio St.3d at 27, 759

N.E.2d 1240.

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a. Photographs of McKelton’s tattoos

{¶ 195} McKelton objects to the admission of several photographs of him

taken by police after Allen’s death, some of which depicted his tattoos. The police

had photographed the tattoos “just for identification purposes.” The prosecutor

mentioned the tattoos during closing arguments, stating, “It’s almost beyond

[parody] to sit here and imagine how it happened, the defendant having a tattoo that

says, straight killer, but that’s his [tattoo].”

{¶ 196} We agree that the tattoo photos should have been excluded under

Evid.R. 403. The photographs encouraged the jury to draw an improper inference

that McKelton committed the crimes charged because his tattoos showed his

comfort with death and guns. And other photographs at trial clearly confirmed

McKelton’s identity without depicting his tattoos. Thus, any minimal probative

value that the photos may have had was outweighed by the danger of unfair

prejudice.

{¶ 197} Nevertheless, given the overwhelming evidence of McKelton’s

guilt, we are unpersuaded that but for these photos, “the outcome of the trial clearly

would have been otherwise.” Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13

N.E.3d 1051, at ¶ 69.

b. Killing other witnesses

{¶ 198} Lemuel Johnson testified that McKelton offered to “take care of”

some witnesses for Johnson’s incarcerated brother and described his past success

in preventing witnesses (including Evans) from testifying. Defense counsel

objected. The court warned the jurors not to consider the testimony as evidence of

McKelton’s “character * * * in order to show that he acted in conformity or in

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accordance with that character.” 10 The state now argues that the evidence was

admissible to prove McKelton killed witnesses to silence them.

{¶ 199} Evidence of a certain modus operandi is admissible under Evid.R.

404(B) “because it provides a behavioral fingerprint which, when compared to the

behavioral fingerprints associated with the crime in question, can be used to identify

the defendant as the perpetrator.” State v. Lowe, 69 Ohio St.3d 527, 531, 634

N.E.2d 616 (1994). But to be admitted for this purpose, evidence of other acts

“must be related to and share common features with the crime in question.” Id.

{¶ 200} Here, Johnson’s testimony does not establish a distinctive

behavioral fingerprint. But Johnson’s testimony also established the context for

McKelton’s admissions about Allen and Evans. And the trial judge clearly

instructed the jurors that they could not rely on evidence about how McKelton

treated witnesses to show his character or for any other improper purpose. Thus,

we do not find error.

c. Witness intimidation

{¶ 201} Detective Gregory testified that he received a frantic phone call

from Michael Nix early on September 26, 2010. Nix said that an associate of

McKelton had approached him at a party and asked how McKelton’s trial was going

to go. Nix had replied that he did not know. The associate then left the party.

Twenty minutes later, someone fired shots at Nix from a passing car.

{¶ 202} This testimony is not improper evidence of another act. Instead, it

is evidence to support the charge that McKelton tried to prevent a witness from

testifying against him in this trial. Evidence that McKelton may have interfered

with a witness’s testimony in this trial is highly probative of his consciousness of

10

On redirect, the prosecutor alluded to the identity of other victims. McKelton argues that trial

court erred by overruling an objection to leading questions on this topic. But these questions were

not leading: they did not suggest an answer. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900

N.E.2d 565, at ¶ 149. And even if they had been, they did not prejudice McKelton because Johnson

had already testified that McKelton said he had killed multiple witnesses.

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guilt. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810,

¶ 68. Thus, this evidence was admissible.

d. “C Murderer”

{¶ 203} Detective Gregory stated that McKelton’s street name was “C

Murderer.” In State v. Gillard, this court held that the prosecutor’s repeated

references to the significance of the defendant’s nickname, “Dirty John,” were

“improper attempts to impugn Gillard’s character.” 40 Ohio St.3d at 230, 533

N.E.2d 272, abrogated on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686

N.E.2d 1112 (1997). By contrast, here the state made a single reference to

McKelton’s nickname and did not argue the significance of that nickname. We

cannot reverse for plain error, because “it is not clear that, had the nickname not

been improperly used, the outcome of the trial would have been different.” Id.

e. “Serial killer”

{¶ 204} Sheridan Evans testified that police should not have called Crystal

when looking for Evans because doing so “was like throwing meat to a tiger when

you know this man is a serial killer.” The danger of unfair prejudice from

Sheridan’s description of McKelton as a “serial killer” exceeded any possible

probative value. But because we are unpersuaded that this evidence was outcome-

determinative, we do not reverse for plain error.

f. “Killer” and “robber boy”

{¶ 205} Shaunda Luther testified that Allen referred to McKelton and his

companions, one of whom had been indicted for a triple homicide, as “killers” and

to McKelton as a “robber boy,” meaning a “person who robs other drug dealers.”

{¶ 206} Luther’s testimony showed that Allen was aware of McKelton’s

past criminal behavior and that Allen may not have reported McKelton’s repeated

domestic violence to police because she was afraid of McKelton. In other words,

the statements were offered to show Allen’s perception of McKelton and their

relationship, not to prove that he was a murderer or a robber. And the trial court

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reduced any danger of unfair prejudice by issuing a limiting instruction to the jury.

See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194.

{¶ 207} McKelton objects to the state’s implication that Audrey Dumas set

up robbery victims for him and that these schemes generated the money that she sent

to him in prison. She testified that she later refused to play the “role” of his girlfriend

because McKelton and Crystal had a baby. The state implied that by this “role,”

Dumas meant not only sending McKelton money, but also facilitating robberies and

providing an alibi. But this series of questions and answers was relevant to Dumas’s

status as a witness identified with an adverse party, and the trial court did not err by

admitting it.

g. Drug activity

{¶ 208} Several witnesses testified about McKelton’s drug activity. First,

Lemuel Johnson testified that he and McKelton were engaged in a drug-related

transaction when McKelton offered to take care of some witnesses for him. This

testimony provided context for McKelton’s offer to take care of the witnesses

against Johnson’s brother. The trial court twice instructed the jury not to draw

improper inferences from it. We presume that the jurors followed these

instructions. See Loza, 71 Ohio St.3d at 79, 641 N.E.2d 1082.

{¶ 209} Second, Crystal referred to McKelton’s drug activity when

answering the prosecutor’s questions about McKelton’s “business” and family

telephone numbers. Cell-phone records featured prominently in the police

investigation. and Crystal’s testimony explained why McKelton had more than one

phone number and why he changed his numbers once a week. Moreover, any error

in admitting this evidence was harmless because other witnesses spoke with more

detail about McKelton’s drug activity.

{¶ 210} Third, Charles Bryant testified that he and McKelton had engaged

in “dope dealing” in the past, but this testimony bolstered Bryant’s credibility as an

informant by providing context for McKelton’s confession to him. And Andre

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Ridley testified that Evans claimed that McKelton had given him 20 ounces of

cocaine, with an estimated value of $20,000 or $40,000, after the men moved

Allen’s body, which suggests that McKelton bribed Evans to keep him from

reporting Allen’s murder and for helping dispose of her body. These pieces of

evidence were highly probative, and their value far outweighed the danger of unfair

prejudice.

{¶ 211} Finally, McKelton objects to evidence about his “lavish lifestyle as

a drug dealer.” Luther testified that McKelton gave Allen significant amounts of

money. But evidence about Allen’s financial dependency on McKelton was

relevant to the state’s effort to establish a cycle of domestic violence, the first step

of which is “the tension building phase,” when tension keeps rising as a result of

economic-power issues in the relationship. And the prejudicial impact of this

testimony was minimal, given that Luther did not address the source of McKelton’s

money.

h. Rumors

{¶ 212} Several state witnesses said that they had heard rumors about who

was responsible for the murders. “Rumors * * * are prototypical examples of

inadmissible hearsay.” Weaks v. North Carolina Dept. of Transp., 761 F.Supp.2d

289, 306 (M.D.N.C.2007).

{¶ 213} Sheridan Evans testified about a conversation in which McKelton

had told her that “Pooh,” Michael McNeil, had killed Evans. She responded, “Well,

Pooh said you did it.” This testimony was offered to provide context for

McKelton’s threatening reaction when he was accused of the murder.

{¶ 214} Marcus Sneed testified that in two conversations, he asked

McKelton whether what “everybody was saying in the street” about the murders

was true. The testimony provided context for McKelton’s responses admitting

involvement in the murder of Allen and Evans.

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{¶ 215} Crystal testified about rumors that she did not associate with

McKelton after her brother’s death because of “rumors that he had something to do

with [her] brother’s death.” This testimony was presented to show Crystal’s state

of mind when she initially spoke to police.

{¶ 216} Lemuel Johnson testified on cross-examination that he believed

McKelton’s accounts about eliminating witnesses, saying, “I already knew from

the streets that he was telling the truth.” But defense counsel invited this testimony

by inquiring whether Johnson believed McKelton “was being serious about these

witnesses that he was telling [Johnson] about.”

{¶ 217} In all these instances, evidence was offered for a nonhearsay

purpose and not for the truth of the matter asserted. Accordingly, there was no

violation of hearsay rules or the Confrontation Clause. See Davis, 547 U.S. at 821,

126 S.Ct. 2266, 165 L.Ed.2d 224 (only testimonial statements implicate the

Confrontation Clause). And in each situation, the trial court reasonably permitted

the evidence under Evid.R. 403 because its probative value outweighed any unfair

prejudice to McKelton.

i. “Generalized testimony”

{¶ 218} McKelton next objects to the admission of allegedly prejudicial

“generalized” statements that he was unable to meaningfully refute at trial. Most

of the statements cited by McKelton are discussed elsewhere in this opinion. And

his remaining objections are meritless.

j. References to rap songs

{¶ 219} McKelton argues that the state attempted to vilify him by making

irrelevant and prejudicial references to rap songs.

{¶ 220} Andre Ridley testified that, by Evans’s account, McKelton had

gotten the idea to throw “some dope” by Allen’s body from a rap song. Ridley’s

reference to the rap song was a detail that lent credibility to Evans’s description of

how McKelton disposed of Allen’s body, which was crucial to establishing both

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that McKelton had committed crimes against Allen and that Evans had witnessed

those crimes.

{¶ 221} The trial court did not abuse its discretion by admitting this

evidence.

k. Battles Co.

{¶ 222} Over defense objection, Detective Witherell testified about a

jailhouse letter from McKelton to Crystal. The letter states, “[I]n July when we

find out everyone they are using, we gone get there records and post them up all

over * * * Co.” Immediately preceding “Co.” is a seven-letter word that begins

with a capital “B.” Witherell read the word as “Battles,” which he took to refer to

JC Battle & Sons Funeral Homes, Inc., a funeral parlor near Crystal’s home. He

thought that McKelton wanted to post the names of potential witnesses at a funeral

home to convey a “subtle” message that their safety was in peril. He explained that

he knew how “information is disseminated in certain [Cincinnati] neighborhoods”

and that the letter concerned him in light of “McKelton’s history in terms of

witnesses.”

{¶ 223} Evidence of plans to threaten witnesses was probative of

McKelton’s consciousness of guilt as well as McKelton’s method of operating, and

the defense had opportunity to press Witherell about the basis for his opinion. Thus,

we are not persuaded that this testimony violated Evid.R. 403. See Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 68.

l. McKelton’s treatment of women

{¶ 224} The state introduced other jailhouse letters from McKelton to

Crystal Evans that, according to McKelton, were not relevant. These letters did

include profanity, sexually explicit content, and racial comments. But they were

probative of his relationship with Crystal, and the state was entitled to explore that

relationship because she was his alibi. McKelton offers no explanation of how this

evidence unfairly prejudiced him.

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{¶ 225} The jury also heard a recorded jailhouse phone call in which

McKelton swore at Dumas repeatedly and demanded that she bring him money.

During the conversation, Dumas told McKelton that she did not wish to be involved

with him now that he had a son with Crystal. This evidence was relevant to explore

Dumas’s potential bias in favor of McKelton. And contrary to McKelton’s

suggestions, the state did not improperly rely on her testimony to encourage

inferences about his treatment of all women.

{¶ 226} Charles Bryant testified that McKelton advised him that “females

can’t be trusted,” are “good with lying,” and have to be watched. McKelton then

referred to Allen as “scandalous and running her mouth.” The state introduced this

evidence to show the course of the conversation in which McKelton confessed to

murdering Allen and to suggest a possible motive for that murder—McKelton did

not trust Allen. But the state did not imply that McKelton’s general attitude towards

all women explained why he killed Allen. Cf. State v. Johnson, 71 Ohio St.3d 332,

340, 643 N.E.2d 1098 (1994) (prosecutor impermissibly relied on defendant’s

general hatred of women—“evidence of a character trait” under Evid.R. 404(A)—to

prove that he killed a particular woman). Thus, the trial court reasonably allowed the

evidence under Evid.R. 403.

m. Gruesome photographs

{¶ 227} The state introduced 15 autopsy photographs of Allen’s body, each

capturing her injuries from a different angle or perspective. Allen’s body appears

decomposed and discolored in some photographs. Others show extracted body

parts.

{¶ 228} This court “strongly caution[s] judicious use” of gruesome photos

in capital cases. Morales, 32 Ohio St.3d at 259, 513 N.E.2d 267. Accordingly, a

gruesome photograph is admissible only if its “probative value * * * outweigh[s]

the danger of prejudice to the defendant.” Id. at 258. Moreover, even a photo that

satisfies the balancing test is inadmissible if it is “repetitive or cumulative.” Id.;

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see State v. Thompson, 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). A trial court’s

decision that a photo satisfies this standard is reviewable only for abuse of

discretion. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d

303, ¶ 69.

{¶ 229} Here, the state had the burden to prove that McKelton killed Allen

and committed gross abuse of her corpse, and these photos were probative of those

facts. See State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). The

photos were not repetitive or cumulative, because they depicted different injuries

to the face and neck, as well as insect activity that the coroner used to estimate time

of death. Cf. State v. Watson, 61 Ohio St.3d 1, 7, 572 N.E.2d 97 (1991) (five

autopsy photos of the same gruesome head wound were unnecessary and

cumulative since the defense had not disputed the manner and cause of death).

{¶ 230} McKelton also argues that the risk of undue prejudice was

especially great because one juror was prone to faint upon viewing gruesome

images. But the defense objected to excusing the juror for cause. In addition, the

record indicates that this juror responded only to photos of Evans, not to those of

Allen. Thus, there is no reason to believe the juror was unduly swayed by the

photos of Allen.

{¶ 231} Finally, McKelton says that the autopsy photos should not have

been reintroduced at the mitigation phase. Defense counsel objected at trial, and

the state argued that the photos were relevant to the crimes witnessed by Evans,

which provided the basis for the aggravating circumstance at sentencing. The trial

judge overruled the objection, but later instructed the jurors that they could consider

the “evidence in terms of whether it tends to prove or disprove an aggravating

circumstance[] of the case only,” and not for any other purpose. We must presume

that the jurors followed this instruction. Loza, 71 Ohio St.3d at 79, 641 N.E.2d

1082.

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n. Other “irrelevant or unfairly prejudicial evidence”

{¶ 232} McKelton next alleges that the trial court erred by admitting

“additional irrelevant or unfairly prejudicial evidence,” which was part of a

prosecutorial “campaign to depict [him] as the type of person who would commit

crimes like those charged.”

{¶ 233} First, McKelton objects to hearsay testimony that his daughter had

told Z.D. that he had “choked her mother with a phone cord” and warned Z.D. to

“watch out for” Allen. We addressed this argument in our analysis of proposition

of law No. 11.

{¶ 234} Second, the prosecutor introduced a copy of The Anarchist

Cookbook, a book published in 1971 “for entertainment purposes only,” that police

had found in Allen’s master bedroom. This book’s author describes it as a volume

“on all the subjects (from drugs, to weapons, to explosives) that are currently illegal,

but the publisher added the following disclaimer: “its recipe should not be used as

they do not pretend to be accurate.” The state argues that the book was relevant to

establishing that McKelton lived in Allen’s house. But the state did not introduce

evidence that the book belonged to McKelton. While the book appears to be at least

partly satirical, given its title, the book should not have been admitted. But given the

overwhelming evidence of McKelton’s guilt, its admission did not rise to the level of

plain error.

{¶ 235} Third, McKelton argues that the prosecutor asked Melinda Nagel,

Allen’s physical therapist, an inflammatory, hypothetical question that was

unsupported by the record. Generally, “[h]ypothetical questions directed to a

witness must be based on facts supported by or adduced from the evidence.” Olsen

v. Elec. Auto-Lite Co., 164 Ohio St. 283, 284, 130 N.E.2d 363 (1955). But here the

defense introduced this line of inquiry on cross-examination by asking Nagel how

she would have treated Allen if Allen had reported being hit with a baseball bat.

The prosecutor “pick[ed] up on” this line of questioning on redirect, asking, “[I]f

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[Allen] had told you her boyfriend broke her ankle by slamming a car door on it

repeatedly, would that have changed your treatment plan * * *?” This was a fair

response to the defense’s cross-examination.

{¶ 236} Fourth, Charles Bryant testified that he and McKelton had been

driving around drinking when they discussed Allen. Bryant said that he had been

smoking marijuana and drinking Grey Goose with cranberry, while McKelton had

been drinking straight Grey Goose. These details lent credibility to Bryant’s

testimony about McKelton’s confession by establishing the context of their

conversation, and the trial court reasonably decided to admit them under Evid.R.

403.

{¶ 237} Bryant testified that he had met McKelton in jail when McKelton

was charged with either intimidation of a witness or contempt of court. Any

probative value in explaining the circumstances under which Bryant met McKelton

was substantially outweighed by the danger of unfair prejudice because McKelton

was on trial for an unrelated charge of witness intimidation. Even so, we find no

basis to reverse for plain error; notably, McKelton was acquitted on the witness-

intimidation charge in this case.

{¶ 238} Finally, Marcus Sneed testified that he had known a man named

“Fat Boy” who “[e]nded up alongside of a road.” According to Sneed, McKelton

had talked to Sneed about setting Fat Boy up to be robbed. The trial court sustained

a defense objection to this testimony and instructed the jury to disregard it. We

presume that the jury followed the trial court’s instruction. See Loza, 71 Ohio St.3d

at 79, 641 N.E.2d 1082.

{¶ 239} For all these reasons, we reject McKelton’s fifth proposition of law.

C. Jury Instructions and Verdict Forms

1. Trial Phase: Proposition of Law No. 12

{¶ 240} In proposition of law No. 12, McKelton argues that his

constitutional rights were violated because (1) the state did not present a cohesive

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theory about Germaine Evans’s death, (2) the jury received instructions on

complicity but no verdict form on it, and (3) the jury did not reach a unanimous

verdict on whether McKelton was the principal offender or only complicit in

Evans’s death.

a. Factual background

{¶ 241} The state charged McKelton with the aggravated murder of Evans

under R.C. 2903.01(A). In a bill of particulars, the state alleged that McKelton

caused Evans’s death “by a single gunshot wound to the back of the head.”

McKelton later filed a notice of alibi for the night Evans died, but the state did not

amend the bill of particulars to allege that McKelton had aided or abetted in the

killing of Evans.

{¶ 242} At trial, the state sometimes implied that McKelton himself had

shot Evans and at other times suggested that McKelton had orchestrated the murder.

The state offered no evidence of who fired the shot if not McKelton. Over defense

objection, the trial court agreed to instruct the jury on complicity. The defense then

requested a special verdict on that issue, arguing that the jury needed to

unanimously find either that McKelton was the principal offender or that he had

“solicited, aided, abetted or procured” the murder. The defense offered no legal

authority that such an instruction was required. The trial court denied the request.

b. Analysis

{¶ 243} McKelton alleges several errors related to complicity. First, he

says that the state’s inconsistent theories of the case “did not present sufficient

evidence to find that McKelton killed Evans beyond a reasonable doubt.” We will

address this argument in our analysis of McKelton’s sufficiency claim in

proposition of law No. 13.

{¶ 244} Second, he argues that the trial court erred by instructing the jury

on complicity. Under R.C. 2923.03(F), “[a] charge of complicity may be stated in

terms of [that] section, or in terms of the principal offense.” Accordingly, a

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defendant who is “indicted for aggravated murder in terms of the principal offense

* * * [is] on notice that evidence could be presented that he was either a principal

offender, or an aider and abetter.” State v. Ensman, 77 Ohio App.3d 701, 703, 603

N.E.2d 303 (11th Dist.1991). This is true even when the state has issued a bill of

particulars that refers to a defendant only as the principal offender. See Hill v.

Perini, 788 F.2d 406, 407-408 (6th Cir.1986). As a result, a jury instruction on

complicity is proper as long as “the evidence adduced at trial could reasonably be

found to have proven the defendant guilty as an aider and abettor.” State v.

Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040 (1976), paragraph five of the

syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156

(1978).

{¶ 245} McKelton argues that the Perryman rule applies only when the

defendant presents evidence of complicity at trial, while here, the state introduced

evidence to support a finding of complicity. But McKelton’s narrow reading of

Perryman is inconsistent with the broad language of the court’s syllabus in that

case, which “unequivocally approved of the practice of charging a jury regarding

aiding and abetting even if the defendant was charged in the indictment as a

principal.” State v. Payton, 8th Dist. Cuyahoga Nos. 58292 and 58346, 1990 WL

48952, *8 (Apr. 19, 1990).

{¶ 246} A complicity instruction was proper here because the evidence could

reasonably be found to have proven that McKelton was an aider and abettor. The

jury could have reasonably interpreted his admissions to having killed Evans to mean

either that he was the principal offender or that he encouraged, cooperated with, or

incited someone else to commit the crime.

{¶ 247} Finally, McKelton objects that the trial court “created an

unacceptable risk” that the jury did not unanimously convict him of aggravated

murder because it did not provide for a separate verdict on complicity. Under Ohio

law, “there is no distinction between a defendant convicted of complicity or as a

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principal offender.” State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-

Ohio-6969, ¶ 70. And the state need not even prove “[t]he identity of the principal

* * * to establish the offense of complicity by aiding and abetting.” In re T.K., 109

Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus.

{¶ 248} We have previously rejected claims that a unanimity instruction is

required under similar circumstances. See State v. Stojetz, 84 Ohio St.3d 452, 458,

705 N.E.2d 329 (1999). Likewise, several intermediate appeals courts have held

that a trial court need not “provide separate jury verdict forms for the principal

offense and complicity to that offense.” State v. Horton, 10th Dist. Franklin No.

13AP-855, 2014-Ohio-2785, ¶ 10 (citing cases). By the same reasoning, we reject

McKelton’s claim that the trial court was required to give specific instructions or

provide for a separate verdict on complicity.

{¶ 249} For these reasons, proposition of law No. 12 fails.

2. Mitigation Phase: Proposition of Law No. 18

{¶ 250} In proposition of law No. 18, McKelton claims that the trial judge

improperly allowed the jury to determine which evidence from the trial phase was

relevant for sentencing. McKelton did not raise this objection below, so plain-error

review applies. See State v. Bey, 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999).

{¶ 251} After mitigation-phase opening arguments, the trial court advised

the jury that the state had “reintroduced evidence * * * which is relevant to the

aggravating circumstances.” He further explained that the jury would “not have all

the evidence that [it] previously considered” because some of the trial-phase

evidence was irrelevant to the jury’s sentencing consideration.

{¶ 252} The trial judge told the jurors that they could consider only a single

aggravating circumstance: that McKelton purposely killed Evans to prevent his

testimony in a criminal proceeding. The jury was told to “consider all of the

testimony and evidence relevant to the aggravating circumstance the Defendant was

found guilty of committing.” Later the judge clarified,

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Some of the evidence and testimony that you considered in the

trial phase of this case may not be considered in this sentencing

phase. For purposes of this proceeding, only that evidence

admitted in the trial phase that is relevant to the aggravating

circumstance and to any of the mitigating factors is to be

considered by you. You will also consider all of the evidence

admitted during this sentencing phase.

The judge warned the jury to consider only those exhibits that he gave to the jury

foreperson.

{¶ 253} When evaluating claims that a trial judge left relevance

determinations to the jury at the sentencing phase, we consider “the penalty-phase

instructions as a whole.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12

N.E.3d 1112, ¶ 214. As long as the instructions “adequately informed the jury as to

the evidence to consider during the penalty phase,” we will not find error. Id. We

have rejected similar claims when instructions (1) limited the jury’s consideration of

the guilt-phase evidence to the relevant aggravating circumstances and the mitigating

factors, id., and (2) made it “clear that the jury would see only those guilt-phase

exhibits that the trial judge admitted and deemed relevant.” Lang, 129 Ohio St.3d

512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 251.

{¶ 254} Here, the trial judge satisfied both requirements. Viewing the

instructions as a whole, we find that it is reasonable to conclude that “the jury

understood that they would see only the evidence that the trial judge deemed

relevant.” (Emphasis sic.) State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853,

854 N.E.2d 150, ¶ 152. Moreover, it was clear that only one aggravating

circumstance was relevant for sentencing purposes.

{¶ 255} Accordingly, we reject proposition of law No. 18.

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D. Prosecutorial Misconduct: Propositions of Law Nos. 8 and 17

{¶ 256} In proposition of law Nos. 8 and 17, McKelton alleges due-process

violations because of cumulative prosecutorial misconduct.

{¶ 257} When reviewing a claim of prosecutorial misconduct, “[t]he

relevant question is whether the prosecutors’ comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’ ” Darden

v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431

(1974). To answer that question, we consider whether the conduct was improper

and whether it prejudicially affected the defendant’s substantial rights. Maxwell,

139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 243. In evaluating

prejudice, we determine the effect of the misconduct “on the jury in the context of

the entire trial.” Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203.

1. Good-Faith Basis for Questions

{¶ 258} McKelton argues that the prosecutor lacked a good-faith basis to

ask questions posed to Mindie Nagel and Audrey Dumas. Because McKelton did

not raise this objection at trial, the prosecutor did not have an opportunity to explain

the basis for his questions on the record. Under these circumstances, we presume

that a good-faith basis existed. Gillard, 40 Ohio St.3d at 231, 533 N.E.2d 272;

Blackshere, 1997 WL 82808, at *4.

2. Inflammatory Victim-Impact Evidence

{¶ 259} McKelton objects that the prosecutor improperly introduced

inflammatory victim-impact evidence. Victim-impact evidence that relates only

“to the personal characteristics of the victim and the emotional impact of the crimes

on the victim’s family,” Payne v. Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597,

115 L.Ed.2d 720 (1991), is generally inadmissible at the trial phase, but such

evidence can be admissible if it also “relat[es] to the facts attendant to the offense,”

State v. Fautenberry, 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995).

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{¶ 260} The alleged victim-impact testimony that McKelton identifies is

either not the victim-impact testimony discussed in Payne, which relates only to the

victim’s personal characteristics or the emotional impact on the victim’s family, or

it relates only to the facts attendant to one of the charged offenses. See id. As such,

this evidence cannot form the basis of a misconduct claim.

3. Character Evidence

{¶ 261} According to McKelton, the prosecutor repeatedly presented “him

as a cold, unrepentant criminal who used threats to control people.” McKelton cites

three exchanges that revealed information about his criminal history and drug

activity: (1) Detective David Gregory testified that he had listened to “hundreds of

hours of” recordings of McKelton’s jailhouse phone calls, (2) Crystal Evans

testified that McKelton “probably was selling drugs” in 2009, and (3) Detective

Keith Witherell testified about the “Battles” letter. Detective Gregory’s testimony

was not improper character evidence; it was relevant to establish that Gregory could

identify McKelton’s voice. And we have already explained in our analysis of

proposition of law No. 5 that Crystal’s and Witherell’s statements were properly

admitted.

{¶ 262} Because the evidence cited by McKelton was properly admitted,

we reject his claim that the prosecutor committed misconduct by introducing it.

4. Wilson’s Prior Inconsistent Statement

{¶ 263} McKelton alleges that the prosecutor engaged in misconduct by

using Wilson’s prior statement as substantive evidence. As explained in the

analysis of proposition of law No. 6, the prosecutor did err, but the error was not

outcome-determinative. Likewise, this conduct, viewed in isolation, did not

prejudicially affect McKelton’s substantial rights.

5. Leading Questions

{¶ 264} McKelton argues that the prosecutor engaged in misconduct by

“improperly ask[ing] leading questions of several witnesses.” He claims that “[t]he

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State essentially testified for its informants” on redirect. Beyond this broad assertion,

however, McKelton does not analyze any specific questions asked, or how they

prejudiced him. We therefore reject this claim of misconduct.

{¶ 265} McKelton also suggests that the prosecutor committed misconduct

by asking leading questions even after the trial court sustained defense objections

on that basis. We have recognized that prosecutorial misconduct can occur when a

prosecutor continues to ask leading questions even after the trial court has sustained

objections on that basis. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d

565, at ¶ 170. But in Diar, the prosecutor pursued a line of leading questions

immediately after the court ruled that they were improper. By contrast, McKelton

argues that the prosecutor should not have put leading questions to other witnesses

after the trial court sustained objections to leading questions. Moreover, McKelton

fails to identify specific leading questions that the prosecutor should have refrained

from asking in light of the trial court’s ruling.

6. Disclosure of an Incorrect Witness Address

{¶ 266} McKelton objects that the state engaged in misconduct by giving

the defense an outdated address for one of its witnesses, Andre Ridley. The

prosecutor explained that the error was unintentional and argued that no prejudice

had occurred because McKelton’s investigator had not even gone to the address

provided. The trial judge offered to remedy the error by permitting the defense

investigator to speak with Ridley and allowing the defense to call Ridley as a

witness during its case-in-chief. Defense counsel said they would let the court

know whether they wanted to pursue that course by the next morning, but there is

no further discussion of the issue on the record. The defense called no witnesses in

its case-in-chief.

{¶ 267} Under these circumstances, McKelton has failed to establish

prejudice.

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7. Mischaracterizing Evidence

{¶ 268} In addition, McKelton claims that the prosecutor mischaracterized

three pieces of evidence adduced at trial. He asserts that these “ ‘improper

insinuations and assertions calculated to mislead the jury’ ” violated his right to a

fair trial, quoting Berger v. United States, 295 U.S. 78, 85 (1935). He did not object

at trial, so plain-error review applies. State v. Hanna, 95 Ohio St.3d 285, 2002-

Ohio-2221, 767 N.E.2d 678, ¶ 84.

{¶ 269} First, during closing argument, the prosecutor referred to one of

McKelton’s tattoos, which had the words “scandalous life” in it, and asked the jury,

“Do you remember hearing scandalous come up again?” He then said that Charles

Bryant had testified that McKelton had “called [Allen] a scandalous bitch” and had

confessed to choking her. According to the trial transcript, however, Bryant

testified that McKelton, using a “whole lot of foul words,” had said that Allen “was

scandalous and running her mouth.”

{¶ 270} There is some disparity between the prosecutor’s description of

Bryant’s testimony and his actual testimony. However, before closing arguments

began, the trial court instructed the jury:

[I]f the attorneys represent facts and they are different than

what you recall, you are to rely upon your collective memory

during deliberations to decide whether or not those facts have

been proven or not proven based upon the instructions of law.

Here, “a review of the challenged remarks demonstrates that the prosecutor simply

set forth what he thought the evidence showed.” State v. Banks, 8th Dist. Cuyahoga

No. 97084, 2012-Ohio-2495, ¶ 41. And “[e]ven if the prosecutor’s description of

the witness’s testimony was inaccurate, the trial court nevertheless instructed the

jury to rely on its own recollection of the evidence.” Id.

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{¶ 271} Second, the prosecutor argued that Gerald Wilson, who had

recanted on the witness stand, addressed McKelton as he left the courtroom.

According to the prosecutor, Wilson “got up and looked at Calvin and goes, I got

you. I got you, bud or bro, whatever that last word was. You’ll have to use your

memory. He looked right at him, nodded. I got you back.” The transcript indicates

that Wilson said, “Later on, Bro.”

{¶ 272} As with Bryant’s testimony, the prosecutor merely related his own

observations about Wilson’s testimony, which were not entirely confirmed by the

record. But the jury was told to rely on its own recollection of the evidence, and

McKelton offers no evidence that the jury disregarded that instruction.

{¶ 273} Finally, the prosecutor argued that McKelton had asked Audrey

Dumas to provide an alibi for both murders. According to the prosecutor, after he

killed Evans, McKelton thought, “I’m going to be with Crystal, and I’m going to

have Audrey blowing my phone up all night long, so that later I can say, hey, I’m

asleep with Crystal.” The prosecutor also argued that McKelton expected Dumas

to play her “role”—whether it was providing McKelton an alibi or bringing him

money—and if she failed to do so, McKelton would threaten her.

{¶ 274} A prosecutor is entitled, as is defense counsel, to “wide latitude in

summation as to what the evidence has shown and what reasonable inferences may

be drawn therefrom.” State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773

(1970). Counsel are permitted to “present their most convincing positions.” State

v. Phillips, 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). Here, the prosecutor

reasonably exercised this latitude by drawing on Dumas’s testimony, phone

records, and other evidence to argue that she was not a credible alibi witness. We

conclude that these comments were proper.

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8. Prosecutorial Comments about McKelton’s Unsworn Statement

{¶ 275} McKelton says that the cumulative effect of the prosecutor’s

improper comments about, among other subjects, McKelton’s unsworn statement

during mitigation-phase closing arguments rendered his trial unfair.

{¶ 276} McKelton’s unsworn statement did not mention Missy Allen or

Germaine Evans. In closing argument, the prosecutor said:

You heard Calvin McKelton tell you, let me talk to you about

why we’re here. And you never heard him say Missy’s name.

You never heard him talk about Germaine Evans’ death. * * *

And you never heard Calvin McKelton say a single word about

it.

{¶ 277} When a defendant chooses to make an unsworn statement, a

prosecutor “may comment that the defendant’s statement has not been made under

oath or affirmation.” State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988),

paragraph two of the syllabus. However, misconduct occurs when a prosecutor

“refer[s] not only to credibility but also to appellant’s silence on particular issues.”

Lorraine, 66 Ohio St.3d at 419, 613 N.E.2d 212.

{¶ 278} Here, the state concedes that its closing argument “cross[ed] [the]

line in a couple of passing phrases.” The prosecutor erred by commenting on

McKelton’s silence regarding Allen and Evans. But viewed in the context of the

weight of the aggravating circumstance, these statements did not affect McKelton’s

substantial rights.

9. Reference to Improper Aggravating Circumstances

{¶ 279} McKelton says that the prosecutor “improperly referred to facts

unrelated to the aggravating circumstance as ‘the weight that goes on the side of

that specification.’ ”

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{¶ 280} During the sentencing phase of a capital trial, a prosecutor “may

introduce and comment upon * * * any evidence raised at trial that is relevant to

the aggravating circumstances specified in the indictment of which the defendant

was found guilty.” State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995),

syllabus. But the prosecutor may not “describe nature and circumstances evidence

as a statutorily defined aggravating circumstance.” Id. at 422. See State v. Davis,

38 Ohio St.3d 361, 367-373, 528 N.E.2d 925 (1988)).

{¶ 281} Here, a single aggravating circumstance was before the jury at

sentencing: McKelton killed Evans to prevent his testimony in a criminal

proceeding. R.C. 2929.04(A)(8). The prosecutor directed the jury’s attention to

this specification and argued that the following is “weight that goes on the side of

that specification”: (1) Evans knew that McKelton killed Allen, dumped her body,

and attempted to burn her house, (2) McKelton knew that Evans was aware of these

facts and was the only person who could connect him to those crimes, and (3)

Evans’s dead body was found in a park, and McKelton never paid his respects.

{¶ 282} The prosecutor should not have discussed McKelton’s failure to

pay respect to Evans, but, viewed in context, this error did not affect McKelton’s

substantial rights. The prosecutor made clear that only one specification was at

issue and advised the jury to weigh that against all the mitigation evidence. In

addition, the trial judge accurately instructed the jury on the weighing process and

told the jurors that they could “not consider the nature and circumstances of the

crime as an aggravating circumstance.” The remaining facts regarding the crimes

witnessed by Evans tended to prove the essential elements of the specification, and

the prosecutor’s discussion of those facts was therefore proper.

10. Prosecutor’s Focus on Allen, Rather Than Evans

{¶ 283} Next, McKelton objects that the prosecutor focused more on

Allen’s death than Evans’s during the mitigation phase, even though the killing of

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Evans was the capital offense. By doing so, he says, the prosecutor turned the one

aggravating circumstance at issue into two.

{¶ 284} As already noted, during the mitigation phase of a capital trial, a

prosecutor may introduce evidence of and comment on any aggravating

circumstance for which a defendant was convicted. Gumm, 73 Ohio St.3d at 421,

653 N.E.2d 253. Here, the aggravating circumstance is predicated on the victim’s

having witnessed another criminal offense. Accordingly, the prosecutor was

permitted to discuss the underlying criminal offenses. We therefore reject

McKelton’s argument that the prosecutor turned one aggravating circumstance into

two.

11. Reference to the Prosecutor’s Childhood

{¶ 285} McKelton claims that the prosecutor erroneously compared their

childhoods during sentencing.

{¶ 286} “Neither the defense nor the prosecution may refer to evidence that

is not in the record.” State v. Brown, 38 Ohio St.3d 305, 316, 528 N.E.2d 523

(1988), fn. 7. Accordingly, counsel should not state facts of his or her own personal

experience during closing arguments. See State v. Beck, 2010 SD 52, 785 N.W.2d

288, ¶ 16; State v. Williams, 96-1023 (La. 1/2/1998), 708 So.2d 703, 716. When a

prosecutor did refer to matters outside the record, we found no prejudice because

the reference was “short, oblique, and justified as a reply to defense arguments and

elicit[ed] no contemporaneous objection.” Lott, 51 Ohio St.3d at 166, 555 N.E.2d

293.

{¶ 287} In closing argument, defense counsel first raised the issue of

childhood, contrasting McKelton’s background to his own. He stated he had been

raised in an upper-middle-class environment by parents who had high expectations

for their children. He contrasted that to the environment McKelton was raised in,

“where he had no expectations, where he had to fend for himself, * * * where

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violence, robbery, prostitution and drugs are [the] norm.” He said it was rare for

people to overcome those obstacles.

{¶ 288} In rebuttal, the prosecutor cited his own childhood experiences: “I

know what it’s like to grow up in the projects. I was sitting at the kitchen table,

had a single mother open up a can of Spaghetti’Os and offer those to everybody. I

didn’t grow up to be a murder[er].”

{¶ 289} The prosecutor erred by alluding to his own personal experience,

but no prejudice occurred because all three Lott criteria are satisfied here. The

reference was brief, the comments were justified in response to defense counsel’s

comparison of McKelton’s childhood to his own, and McKelton did not object at

trial. Under these circumstances, no prejudicial error occurred.

12. Autopsy Photos

{¶ 290} McKelton recasts as prosecutorial misconduct his claim that it was

error to reintroduce Allen’s autopsy photos during mitigation. As explained in the

analysis of proposition of law No. 5, the trial court did not err in this regard. “If

the evidence was properly admitted, then the prosecutor’s decision to offer it cannot

form the basis of a misconduct claim.” Mammone, 139 Ohio St.3d 467, 2014-Ohio-

1942, 13 N.E.3d 1051, at ¶ 116.

13. Cumulative Prejudice

{¶ 291} Finally, McKelton argues that the cumulative effect of the

prosecutor’s misconduct deprived him of a fair trial, undermining his conviction

and his sentence. Viewed in context of the trial, we cannot conclude that the

prosecutor’s conduct prejudicially affected McKelton’s substantial rights. See

Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203.

{¶ 292} For all these reasons, we reject proposition of law Nos. 8 and 17.

E. Ineffective Assistance of Counsel: Proposition of Law Nos. 15 and 16

{¶ 293} In his 15th and 16th propositions of law, McKelton argues that

counsel provided constitutionally ineffective assistance. To establish ineffective

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assistance, McKelton must (1) show that counsel’s performance “fell below an

objective standard of reasonableness,” as determined by “prevailing professional

norms” and (2) demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. When

performing this analysis, we “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Id. at 689.

1. Trial Phase

{¶ 294} McKelton argues that defense counsel “failed in several ways to

provide a basic defense” for him at the trial phase.

{¶ 295} First, McKelton recasts several propositions of law as ineffective

assistance because trial counsel failed to object. We have rejected each of the

underlying propositions on its merits. The same reasoning, taken to its logical

conclusion, also justifies our denial of McKelton’s Strickland claim.

{¶ 296} Second, McKelton says that trial counsel should have voir dired the

jury after “a courtroom incident” that occurred on October 8. As an unidentified

man left the courtroom for an afternoon break, he “said something towards the

prosecution and towards the defense table.” According to defense counsel, 11

jurors were in the courtroom at the time of the “outburst.” The judge offered “to

voir dire the jury * * * to make sure that none of [the jurors] saw anything which

they believe would in any way prejudice their ability to be fair and impartial.”

Defense counsel declined the offer. McKelton now claims that defense counsel

should have accepted.

{¶ 297} This “court generally will not second-guess counsel’s judgments

about what questions to ask on voir dire” when reviewing claims of ineffective

assistance during pretrial voir dire. State v. Johnson, 112 Ohio St.3d 210, 2006-

Ohio-6404, 858 N.E.2d 1144, ¶ 128. This deference is appropriate because

“counsel is in the best position to determine whether any potential juror should be

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questioned and to what extent.” State v. Murphy, 91 Ohio St.3d 516, 539, 747

N.E.2d 765 (2001).

{¶ 298} We apply the same deference to trial counsel’s decision here. Trial

counsel observed the incident, which he described as an “outburst” that “happened

very quickly.” Under the circumstances, counsel could reasonably decide not to

question the jury, and McKelton was not prejudiced by that decision.

{¶ 299} Third, McKelton argues that trial counsel were ineffective for not

trying to sever the first two counts of the indictment. Ohio “law favors joining

multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are

of the same or similar character.’ ” Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293,

quoting Crim.R. 8(A). But a defendant is entitled to severance under Crim.R. 14 if

he can affirmatively show prejudice. Id. Even then, the state can overcome a

defendant’s claim of prejudicial joinder by showing either that (1) it could have

introduced evidence of either of the offenses, if they had been severed for trial, as

“other acts” under Evid.R. 404(B) or (2) the “evidence of each crime joined

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