State v. Graham (Slip Opinion)

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

v. Graham, Slip Opinion No. 2020-Ohio-6700.]

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. 2020-OHIO-6700

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

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

may be cited as State v. Graham, Slip Opinion No. 2020-Ohio-6700.]

Criminal law—Aggravated murder—Aggravating circumstances do not outweigh

mitigating factors—Convictions affirmed, death sentence vacated, and

cause remanded for resentencing.

(No. 2016-1882—Submitted October 22, 2019—Decided December 17, 2020.)

APPEAL from the Court of Common Pleas of Portage County,

No. 2016 CR 107 E.

_________________

FISCHER, J.

I. INTRODUCTION

{¶ 1} This is an appeal of right from an aggravated-murder conviction and

death sentence. A Portage County jury found appellant, Damantae Graham, guilty

of multiple offenses, including aggravated murder and three accompanying death-

penalty specifications: committing the aggravated murder during an aggravated

robbery, an aggravated burglary, and a kidnapping. The jury recommended a

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sentence of death, and the trial court accepted the recommendation and sentenced

Graham accordingly. For the reasons that follow, we affirm Graham’s convictions

but vacate his death sentence and remand the cause to the trial court for resentencing

consistent with this opinion.

II. GUILT-PHASE EVIDENCE

{¶ 2} Evidence introduced at trial showed that Graham, a 19-year-old, shot

Nicholas Massa during the robbery of an apartment in Kent, Ohio. The state

presented the testimony of, among others, the two surviving robbery victims and

Graham’s three codefendants.

A. Kremling plans to rob Haithcock

{¶ 3} Connor Haithcock, a 19-year-old, and Justin Lewandowski, a 20-

year-old Kent State University student, were roommates at the Ryan Place

apartments in Kent. Massa, an 18-year-old Kent State University student, often

visited the apartment.

{¶ 4} Haithcock sold marijuana and “dabs,” a concentrated form of

tetrahydrocannabinol, also known as THC, from the apartment. Haithcock sold

marijuana to 17-year-old Ty Kremling, his former high school classmate, on two

occasions. On those occasions, Kremling noticed that Haithcock kept marijuana

and a significant amount of money in a lockbox in the apartment.

{¶ 5} Soon after his second purchase of marijuana, Kremling decided to rob

Haithcock. On Super Bowl Sunday, February 7, 2016, he began planning the

robbery for later that day. Kremling asked two of his friends, Graham and 17-year-

old Marquis Grier, if they would like to take part in a robbery. Kremling told them

it would be easy, and he shared details with them: the location of the apartment, the

valuable items in the apartment, and the intended target of the crime (Haithcock)

and how he knew him. Graham and Grier agreed to participate.

{¶ 6} Kremling then called 17-year-old Anton Planicka, a friend who

owned a truck. Kremling told Planicka that he needed a ride to Kent to commit a

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robbery. Planicka later testified that Kremling had told him it was a “sure thing”

and had asked him if he “wanted in on it.” Planicka agreed to participate.

{¶ 7} Kremling, Grier, Graham, and Planicka met at a house on McElrath

Avenue in Ravenna. According to Planicka, Kremling said they were going to take

everything from Haithcock. Planicka testified, “He [Kremling] said that he’d been

there over the weekend and they had an Xbox One and money and drugs.” They

planned to use bandanas and hoodies cinched tightly to cover their faces.

According to Grier, he and Graham each had a .380-caliber High Point

semiautomatic handgun to use during the robbery.

B. Massa is killed during the planned robbery

{¶ 8} On the afternoon of February 7, Haithcock, Lewandowski, and Massa

were at Haithcock’s and Lewandowski’s apartment. Haithcock and Massa were

playing Xbox, and Lewandowski was hanging decorations on the wall, using a

hammer.

{¶ 9} Shortly before 4:00 p.m., Planicka, Kremling, Grier, and Graham

arrived at the Ryan Place apartment building. Planicka backed into a parking space

at a nearby business and stayed in the truck. Kremling, Graham, and Grier entered

the building, partially covered their faces with bandanas and hoodies as planned,

and proceeded to Haithcock’s and Lewandowski’s third-floor apartment. Despite

their disguises, Kremling, Grier, and Graham could be distinguished from each

other by their physical characteristics: Kremling is tall and light-skinned, Grier is

shorter than Kremling and is light-skinned, and Graham is short and dark-skinned.

{¶ 10} According to Kremling, Graham knocked on the apartment door and

Lewandowski opened it. Graham and Grier barged into the living room with their

guns drawn. Graham ordered Lewandowski to drop the hammer he was holding.

He dropped it and put his hands in the air.

{¶ 11} Graham ordered Haithcock, Lewandowski, and Massa to sit on the

living-room couches. According to Haithcock, the short, dark-skinned man (later

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identified as Graham) was doing the talking. He asked Haithcock, “Where’s the

money[?] [W]here’s the dope[?]” Haithcock said that it was all in the lockbox on

the kitchen table. Grier took the dabs and marijuana from the lockbox. Graham

put a gun to Haithcock’s head demanding money. Haithcock gave Graham $500

or $600 from his pocket. The robbers then demanded more money.

{¶ 12} Haithcock told the robbers that there might be more money in his

bedroom. Graham told Grier to take Haithcock to the bedroom to look. Kremling

accompanied them. Meanwhile, Graham stayed in the living room guarding

Massa and Lewandowski, who remained seated on the couch with their hands up.

At trial, Lewandowski described what happened next:

Nick [Massa] looked over at me and the short, dark-skinned male

[Graham] said, what the f[—-] are you looking at him for? If you

look over at him again I’m gonna shoot you. And Nick immediately

replied you’re not going to shoot me. And as soon as he did that,

the short, dark-skinned male shot him [in the chest].

C. Perpetrators flee the scene and split up

{¶ 13} After hearing the gunshot, Grier and Kremling hurried into the living

room and saw that Massa had been shot. According to Kremling, Grier asked

Graham if he had just shot him, and Graham said, “[Y]eah.” The three of them ran

out of the apartment and fled in Planicka’s truck. According to Planicka, Grier

asked Graham, “[W]hy do you have to always be doing hot sh[—] like that[?]” and

Graham replied, “He thought sh[—] was sweet and I wasn’t playing.” Graham then

gave each of them $100, from what he had taken from Haithcock.

{¶ 14} They returned to the house in Ravenna, where they divided up the

marijuana. Graham told them that they did not have to worry about getting caught,

because the gun had jammed, so the shell casing had not ejected. He showed them

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the casing. The four of them left the house separately. Graham told Grier a couple

days later that he had broken up the gun and thrown it in a wooded area.

D. Police investigation

{¶ 15} After the three robbers left his apartment, Lewandowski called 9-1-

1 and reported the shooting. Haithcock got on the phone and told the operator that

Ty Kremling was one of the robbers. During the trial, Haithcock testified that he

had recognized Kremling by “[h]is height, * * * his build, the way he carried

himself, [and] the way he walked.” Shortly after the 9-1-1 call, the police and

medics arrived, and Massa was pronounced dead at the scene.

{¶ 16} On the afternoon of February 7, Detective Richard Soika began

looking for Kremling and the getaway truck—Planicka’s green, four-door truck had

been captured on video by a camera positioned near Haithcock’s and

Lewandowski’s apartment. Soika contacted AT&T and requested that he receive

alerts on the location of Kremling’s phone. Police located Kremling in the Stow

area and arrested him. The next morning, Kremling admitted his involvement in

the robbery. Kremling said that he had not intended to kill anyone but that he had

intended to rob Haithcock for drugs and money. Kremling would not disclose the

names of the other perpetrators.

{¶ 17} On February 8, the police learned that Planicka had been the getaway

driver. Further investigation identified Graham and Grier as suspects, and the

police obtained their physical descriptions and photos. On February 10, Grier was

arrested. Grier admitted his involvement in the robbery but claimed he had not

expected anyone to get hurt. Meanwhile, the police learned that Graham was

staying at a house in Ravenna, and a task force found him hiding in a room inside

that house.

{¶ 18} On February 12, Soika interviewed Graham at the Portage County

sheriff’s office. Graham said, “I wasn’t there,” when he was questioned about his

involvement in the robbery and murder.

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E. Medical examiner’s testimony

{¶ 19} Dr. George Sterbenz, the chief deputy medical examiner for Summit

County, conducted Massa’s autopsy. He testified that Massa died from a single

bullet that entered his chest and traveled at a downward angle through his heart,

aorta, and left lung. Dr. Sterbenz stated that the wound was consistent with the

shooter’s having stood over Massa while he was seated. Based on the injuries to

Massa’s body and the lack of gunshot residue on Massa’s clothing, Dr. Sterbenz

said that the muzzle of the handgun was at least six inches from Massa when he

was shot.

III. PROCEDURAL HISTORY

{¶ 20} The state charged Graham with one count of aggravated murder and

five noncapital counts. In Count 1, the state charged Graham with the aggravated

murder of Massa during an aggravated robbery, aggravated burglary, or

kidnapping. Count 1 contained three death-penalty specifications, all under R.C.

2929.04(A)(7): (1) aggravated murder during an aggravated robbery, (2)

aggravated murder during an aggravated burglary, and (3) aggravated murder

during a kidnapping.

{¶ 21} Regarding the five additional counts, the state charged Graham with

aggravated burglary in Count 2, aggravated robbery in Count 3, kidnapping

Haithcock in Count 4, kidnapping Lewandowski in Count 5, and kidnapping Massa

in Count 6. Each count also included a firearm specification.

{¶ 22} Graham pleaded not guilty to all the charges. The jury found

Graham guilty of all charges and specifications, and it recommended that he be

sentenced to death. The trial judge accepted the recommendation and sentenced

Graham accordingly. Graham was also sentenced to serve 11 years in prison on

each of the noncapital counts and to serve a total of six years in prison on the firearm

specifications, for a total of 61 years.

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IV. ISSUES RAISED ON APPEAL

{¶ 23} Graham’s appeal raises 14 propositions of law. We will address the

issues raised in those propositions in the approximate order that they arose during

the proceedings.

A. Defense counsel failed to show particularized need for grand-jury

transcripts

{¶ 24} In proposition of law No. VIII, Graham argues that defense counsel

were ineffective because they made no effort to show a particularized need to obtain

the grand-jury transcripts. To prevail on this claim, Graham must show that

counsel’s performance was deficient and that a reasonable probability exists that

but for counsel’s errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs

two and three of the syllabus.

{¶ 25} We have recognized a limited exception to the general rule of grand-

jury secrecy: an accused is not entitled to review the transcript of grand-jury

proceedings “unless the ends of justice require it and there is a showing by the

defense that a particularized need for disclosure exists which outweighs the need

for secrecy.” State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph

two of the syllabus. A particularized need is established “when the circumstances

reveal a probability that the failure to provide the grand jury testimony will deny

the defendant a fair trial.” State v. Sellards, 17 Ohio St.3d 169, 173, 478 N.E.2d

781 (1985). Determining whether a particularized need exists is a matter within the

trial court’s discretion. Greer at paragraph one of the syllabus.

1. Defense counsel requested the grand-jury transcripts

{¶ 26} Defense counsel filed pretrial motions to (1) transcribe the grand-

jury proceedings, (2) disclose the names of the witnesses who testified before the

grand jury, and (3) obtain a transcript of the grand-jury proceedings. The trial court

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denied all three motions because defense counsel failed to show a particularized

need.

{¶ 27} Subsequently, defense counsel filed a motion for reconsideration of

the three motions, arguing:

Upon information and belief, persons who testified before the grand

jury have also given statements to law enforcement officers, or to

others who gave the information to the State’s agents; and it is

highly probable that those persons who testified before the Grand

Jury will also be called to testify for the prosecution at trial. Their

testimony before the grand jury may be inconsistent with the other

statements that they have made.

At a hearing on this motion, the prosecutor argued: “[T]here has been no showing

of any particularized need for this testimony. And I will represent to the Court that

the co-defendants [Kremling, Grier, and Planicka] did not testify at [the] grand

jury.” The trial court denied the motion for reconsideration.

2. Analysis

{¶ 28} Graham argues that defense counsel failed to raise the proper

arguments to establish a particularized need for the grand-jury transcripts. He

contends that counsel should have argued that a particularized need existed (1)

based on the possibility that he was indicted on the false testimony of a codefendant,

(2) based on the possibility that his codefendants’ trial testimonies would be

inconsistent with their grand-jury testimonies, and (3) because the grand-jury

testimony of a codefendant might implicate another person who may have been the

shooter. Graham argues that he is “entitled to a new trial with instructions to

provide the grand jury transcript to look for inconsistencies in the testimony of any

of the co-defendants who implicated him as the shooter.” (Emphasis added.)

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{¶ 29} Here, there is no possibility that Graham’s codefendants gave false

grand-jury testimony or grand-jury testimony inconsistent with their trial

testimony, because, according to the prosecutor, none of Graham’s codefendants

testified before the grand jury. The prosecutor was aware that the state had the duty

to disclose such information, if it indeed existed, given Graham’s written request,

under Crim.R. 16(B)(1). Because none of Graham’s codefendants testified before

the grand jury, counsel cannot be found deficient for failing to present a sufficient

argument to demonstrate a particularized need for the nonexistent grand-jury

testimony. Thus, Graham fails to show that defense counsel were deficient.

{¶ 30} Based on the foregoing, we reject proposition of law No. VIII.

B. Jury pool was tainted by racial slurs and racist comments

{¶ 31} In proposition of law No. I, Graham argues that three prospective

jurors made racial slurs and racist comments during individual voir dire and that

the trial court erred by failing to convene a new jury pool due to such comments.

However, defense counsel failed to object to the jury pool at trial and thus forfeited

all but plain error. To prevail, Graham must show that an error occurred, that the

error was plain, and that the error affected the outcome of the trial. State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Graham also argues that defense

counsel were ineffective by failing to request a new jury pool.

1. Racist comments and racial slurs during voir dire

a. Prospective juror No. 38

{¶ 32} Prospective juror No. 38 stated in her jury questionnaire, “Do not

like n[——-]s,” in response to the question, “Do you have any specific health

problems of a serious nature that might make it difficult or uncomfortable for you

to sit as a juror in this case?”

{¶ 33} During individual voir dire, defense counsel brought prospective

juror No. 38’s questionnaire response to the trial court’s attention. Under

questioning, prospective juror No. 38 explained, “Attitude. It’s an attitude. I

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believe there’s white and there’s black. It has nothing to do with color. * * * I see

it where I work every day. * * * [P]eople come in and they just * * * don’t care

about other people; just a bad attitude.”

{¶ 34} During general voir dire, prospective juror No. 38 was questioned

outside the presence of other jurors. She again explained her use of the N-word,

stating, “[I]t’s not a racial thing. I am not prejudice in any way.” She added:

“[T]here’s white people and black people and white n[——-]s and black n[——-]s

and Hispanic. I don’t mean that as in disrespect.” Prospective juror No. 38 was

later excused for cause.

b. Prospective juror No. 195

{¶ 35} During individual voir dire, the trial court excused prospective juror

No. 195 because the prospective juror indicated he would lean toward imposing a

death sentence if the jury found the defendant guilty. The following day,

prospective juror No. 187 informed the court that prospective juror No. 195 made

a derogatory comment that included a racial slur in the presence of their small-

group panel before prospective juror No. 195 was excused. Prospective juror No.

187 reported that prospective juror No. 195 had stated, “I wonder how much we

paid for that n[——-]’s suit.”

{¶ 36} Under questioning, prospective juror No. 187 stated that having

heard the comment would not affect her ability to be fair and impartial. The trial

court then questioned the four remaining prospective jurors from that small-group

panel. Prospective juror No. 185 had heard nothing derogatory. Prospective juror

Nos. 188, 193, and 194 had heard the comment, but each stated that the comment

would not affect his or her ability to be fair and impartial. None of the prospective

jurors who heard prospective juror No. 195’s comment served on the jury.

c. Prospective juror No. 64

{¶ 37} During individual voir dire, the prosecutor questioned prospective

juror No. 64 about his views on the death penalty:

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[The prosecutor]: * * * So the imposition of the death

penalty is not automatic; is it in your mind?

Prospective Juror: No. You can’t just go out and lynch

somebody like, you know, in 1835 or something.

[The prosecutor]: Okay. Fair enough.

Prospective Juror: I watch a lot of Gunsmoke.

Defense counsel later used a peremptory challenge to remove prospective juror No.

64 from the panel.

2. Analysis

{¶ 38} There is no presumption that an entire jury panel is tainted when a

prospective juror makes improper comments in the presence of other prospective

jurors. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127,

¶ 149-150. The party challenging the entire jury panel has the burden to show either

that the jurors were unlawfully empaneled or that they could not be fair and

impartial. Id. at 150. But nothing in the record supports either finding.

a. Racist comments and racial slurs did not taint the jury

{¶ 39} Graham argues that other prospective jurors may have been present

in the jury room while prospective juror No. 38 was being questioned and may have

overheard her racist comments and racial slurs. But this assertion is not supported

by the record. At the beginning of individual voir dire, the trial court informed the

prospective jurors: “At this time, we are going to go back into the jury room and

you will be brought in one at a time to be questioned by the court and then by the

attorneys.” (Emphasis added.) And before prospective juror No. 38 was

questioned, the court reporter noted: “Individual voir dire conducted in the jury

room, outside the presence of other prospective jurors.” (Emphasis added.) Thus,

the record does not support a finding that the jury was tainted by prospective juror

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No. 38’s comments and slurs, because those comments and slurs were not made or

referred to in the presence of other prospective jurors.

{¶ 40} As for prospective juror No. 195, at least four prospective jurors

heard his derogatory comment while they were waiting to be questioned. But

because prospective juror No. 195 was the last prospective juror to be questioned

during individual voir dire, the number of prospective jurors who were able to hear

his comment was quite small, as many had left the courtroom after participating in

individual voir dire. Furthermore, none of those prospective jurors was considered

for selection before the jury was seated. Thus, there is no possibility that the jury

was tainted by prospective juror No. 195’s comment.

{¶ 41} Graham also claims that prospective juror No. 64’s comment about

lynchings in 1835 was racist and may have tainted the jury. Prospective juror No.

64 explained that he had made this comment because he “watch[es] a lot of

Gunsmoke,” a TV western. But no other prospective jurors heard this comment.

Thus, there is also no support that prospective juror No. 64’s comment tainted the

jury.

b. Trial court conducted appropriate inquiry

{¶ 42} Graham argues that in light of the comments made by prospective

juror Nos. 38, 195, and 64, the trial court should have questioned all the remaining

prospective jurors to protect against a tainted jury pool. But the trial court properly

addressed comments that were brought to its attention. First, the trial court

questioned prospective juror No. 38 about the racial slur on her questionnaire

outside the presence of other prospective jurors. Nothing indicates that any other

prospective juror was aware of prospective juror No. 38’s use of the racial slur.

Second, the trial court questioned all the prospective jurors on the small-group

panel that overheard prospective juror No. 195’s derogatory comment. These jurors

indicated that the comment would not have any impact on their ability to be fair

and impartial. Moreover, none of these prospective jurors was seated on the jury.

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{¶ 43} Graham contends that the comments made by these three prospective

jurors demonstrated the need for a new jury pool. But speculation as to bias among

the prospective jurors does not justify quashing the entire venire. See London v.

Scurry, 12th Dist. Madison No. CA95-10-033, 1996 WL 406263, *2 (July 22,

1996). And Graham points to no evidence showing that any other prospective juror

harbored racial bias. Thus, he has not established that the trial court should have

questioned other prospective jurors about their racial views or convened a new jury

pool.

{¶ 44} Graham cites State v. Feagin, 5th Dist. Richland No. 05 CA 1, 2006-

Ohio-676, ¶ 18, in arguing that the trial court should have conducted a further

inquiry to protect against a tainted jury pool. In Feagin, a prospective juror referred

to the defendant as “the crook” during voir dire. Id. at ¶ 12. The trial court excused

the prospective juror but did not question the remaining prospective jurors to

determine whether the comment had caused them to be prejudiced against the

defendant. On appeal, the Fifth District rejected the defense’s claim that the trial

court should have questioned the other prospective jurors, in part because defense

counsel failed to show that the juror’s comment “irreparably tainted the jury panel’s

objectivity.” Id. at ¶ 25. Thus, Feagin does not support Graham’s argument.

c. Batson does not apply

{¶ 45} Graham invokes Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986), in arguing that “issues involving racial prejudice among a

jury” cause structural error and thus his conviction is subject to automatic reversal.

In Batson, the United States Supreme Court outlined a three-part test for evaluating

whether a prosecutor’s use of peremptory challenges constituted a constitutional

violation. Id. at 96. But Graham fails to explain how Batson applies here.

Moreover, neither the prospective jurors who made the racist comments nor the

prospective jurors who heard the comments were seated on the jury that decided

Graham’s guilt and sentence.

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d. Counsel were not ineffective during voir dire

{¶ 46} As a final matter, Graham argues that defense counsel were

ineffective during voir dire. To establish ineffective assistance, Graham 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; see also Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373, at paragraphs two and three of the syllabus.

{¶ 47} First, Graham argues that defense counsel were ineffective by failing

to move for a new jury pool after some prospective jurors made racial slurs and

displayed racial bias. However, defense counsel had no grounds for requesting a

new jury pool after prospective juror No. 38 was excused and the prospective jurors

who had heard prospective juror No. 195’s derogatory comment assured the court

that they could remain fair and impartial. Nothing suggested that the entire jury

pool was tainted simply because two prospective jurors made racist comments. See

State v. Hairston, 4th Dist. Scioto No. 06CA3087, 2007-Ohio-4159, ¶ 17. Thus,

this ineffective-assistance-of-counsel claim lacks merit.

{¶ 48} Second, Graham argues that defense counsel failed to ask the

prospective jurors a single question about race during voir dire. When a capital

defendant is accused of interracial murder, defense counsel are “entitled to engage

in racial-bias inquiry,” but they are not required to do so. (Emphasis deleted.) State

v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 217-218. As we

have explained, “the actual decision to question on racial prejudice is a choice best

left to a capital defendant’s counsel.” State v. Conway, 108 Ohio St.3d 214, 2006-

Ohio-791, 842 N.E.2d 996, ¶ 33. Counsel has to “weigh the risks inherent in

interrogating prospective jurors on the sensitive question of racial prejudice.” State

v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 207.

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{¶ 49} Defense counsel elected not to question prospective jurors about

race. But the record indicates that defense counsel were attuned to issues of racial

bias. Defense counsel spotted prospective juror No. 38’s racist comment on her

questionnaire and brought it to the court’s attention. Defense counsel also filed a

motion to include additional questions on the juror questionnaire about possible

racial bias. Because counsel were alert to the possibility of racial bias, their

decision not to question jurors on that topic appears to have been a deliberate

tactical choice.

{¶ 50} Nevertheless, Graham characterizes defense counsel’s motion to

expand the questionnaire as “a minimal effort to uncover potential racism.”

Graham’s argument is insufficient to overcome the strong presumption that counsel

“made all significant decisions in the exercise of reasonable professional

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

{¶ 51} Under the circumstances, we hold that counsel were not deficient by

failing to make further inquiry on the topic of racial bias. Moreover, Graham

cannot establish prejudice, because there is no evidence that any seated juror

actually harbored racial bias. See State v. Thompson, 141 Ohio St.3d 254, 2014-

Ohio-4751, 23 N.E.3d 1096, ¶ 234.

{¶ 52} Based on the foregoing, we reject proposition of law No. I.

C. Improper admission of testimony describing Graham’s lack of

cooperation and emotion during police interview

{¶ 53} In proposition of law No. V, Graham argues that police testimony

about his postarrest refusal to speak to detectives violated his right to remain silent

and his right to a fair trial. He also argues that defense counsel were ineffective in

that they failed to object to such testimony.

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1. Detective Soika’s testimony

{¶ 54} During the state’s case-in-chief, Detective Soika testified that he

interviewed Graham after his arrest. Soika testified about Graham’s demeanor

during the interview:

Q [prosecuting attorney]: And can you describe for us his

demeanor, what kind of characteristics he’s exhibiting at this point

and time?

A: Well, I’ve been a cop for a while, and I’ve interviewed a

lot of people. * * * Um, after talking to the first two involved in

this, I kind of—I don’t know, I thought maybe I’d get some

information out of Damantae * * * but I tried to talk to Damantae

Graham, and I got nowhere. * * * It’s hard to explain, but it’s just,

um, his demeanor, I mean, he didn’t look nervous, he didn’t blink,

he didn’t—

MR. BEANE [defense counsel]: Objection, Your Honor.

THE COURT: Overruled.

Q [prosecuting attorney]: Continue, please.

A: I mean, * * * trying to talk to him, it was just * * * it was

pretty much like no one I’ve ever interviewed. I mean, usually I can

talk pretty well to people and get a rapport or something, you know,

some kind of a response, but it was just a blank slate, blank stare,

you know. Myself, I tried to talk to him, other detectives tried to

talk to him, and it was just the same, you know, blank stare, no

emotion.

MR. BEANE: Your Honor, I would like for the record to

reflect my continuing objection to this line of questioning.

THE COURT: It will so reflect. * * *

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***

Q [prosecuting attorney]: Okay. Did Mr. Graham make any

statements at all about his involvement when being confronted with

this matter?

A: I believe the only thing he said was, “I wasn’t there.”

2. Standard of review

{¶ 55} Graham contends that we should review the admission of Soika’s

testimony for plain error. But because defense counsel objected to the admission

of the testimony, we review any error under the harmless-error standard in Crim.R.

52(A). State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.

Under that rule, the state bears the burden of demonstrating that the error did not

affect the substantial rights of the defendant. Id.

3. Analysis

{¶ 56} Graham, citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976), argues that Soika’s testimony improperly used his postarrest

silence against him in violation of his constitutional rights. In Doyle, the United

States Supreme Court held that use of a defendant’s postarrest post-Miranda silence

for impeachment purposes violates the Due Process Clause of the Fourteenth

Amendment because although “the Miranda warnings contain no express assurance

that silence will carry no penalty, such assurance is implicit to any person who

receives the warnings.” Doyle at 618; see Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966). Further, the court held that “every post-arrest

silence is insolubly ambiguous because of what the State is required to advise the

person arrested.” Doyle at 617.

{¶ 57} Ten years later, the court was confronted with the issue whether a

defendant’s postarrest post-Miranda silence was admissible as substantive

evidence of guilt in the state’s case-in-chief. Wainwright v. Greenfield, 474 U.S.

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284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). The court held that such use violated

the defendant’s due-process rights, noting that “breaching the implied assurance of

the Miranda warnings is an affront to the fundamental fairness that the Due Process

Clause requires.” Wainwright at 291; see also State v. Leach, 102 Ohio St.3d 135,

2004-Ohio-2147, 807 N.E.2d 335, ¶ 16-17.

{¶ 58} Soika advised Graham of his Miranda rights at the outset of the

interview, but Graham did not invoke them. Instead, he told investigators, “I wasn’t

there,” when asked about the murder. Thus, Soika’s testimony that Graham

exhibited a “blank stare, no emotion” and was uncooperative during the interview

was not a comment on his Fifth Amendment right to remain silent. See State v.

Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 130; State v. Gillard,

40 Ohio St.3d 226, 231, 533 N.E.2d 272 (1988), abrogated on other grounds, State

v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997).

{¶ 59} We note that Soika’s testimony about Graham’s demeanor was

permitted under Evid.R. 701, which governs opinion testimony by lay witnesses.

That rule provides: “If the witness is not testifying as an expert, the witness’

testimony in the form of opinions or inferences is limited to those opinions or

inferences which are (1) rationally based on the perception of the witness and (2)

helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue.”

{¶ 60} Soika’s testimony satisfied both requirements of Evid.R. 701. Soika

observed Graham’s demeanor, and Graham’s reactions were relevant in showing

his evasiveness. See Davis at ¶ 118-120 (testimony that the defendant was “non-

committal, very wishy washy” about whether he knew the victim when he was

shown the victim’s photo was relevant in demonstrating evasiveness); State v.

Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 118-125 (detective’s

testimony about the defendant’s reaction to the news of his wives’ murders

admissible as lay opinion).

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{¶ 61} Graham cites United States v. Ursery, 109 F.3d 1129 (6th Cir.1997),

in arguing that repeated efforts to use a defendant’s postarrest silence show the

state’s intent to violate the Fifth Amendment. Ursery addressed the defendant’s

claim that the prosecutor, during her closing argument, improperly commented on

the defendant’s decision not to testify. Id. at 1134. But Ursery is inapposite

because Soika’s testimony had nothing to do with Graham’s decision not to testify.

{¶ 62} As for Graham’s ineffective-assistance-of-counsel claim, that

argument lacks merit because, as noted above, defense counsel did object to Soika’s

testimony.

{¶ 63} Based on the foregoing, we reject proposition of law No. V.

D. Improper admission of other-acts evidence

{¶ 64} In proposition of law No. IV, Graham argues that the prosecutor

introduced other-acts evidence in violation of Evid.R. 404(B) when (1) during his

opening statement, he said that Graham was known to carry a weapon and described

a picture on Kremling’s cell phone as depicting Graham “wielding his two guns,”

(2) he elicited testimony that Graham was known to carry a gun, and (3) he

introduced a photograph of Graham holding two handguns. Graham failed to object

to the opening statement or the evidence at trial and thus forfeited all but plain error.

See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23.

1. Relevant facts

{¶ 65} During his opening statement, the prosecutor said:

Now, Damantae Graham is known to carry weapons, to have

a weapon, and this day [the day of the murder] he has with him his

weapon, 380 semi-automatic pistol. And in addition, in the course

of planning their robbery at this house on McElrath Street in

Ravenna, he provides Marquis Grier * * * with a weapon, also. So

we have two guns amongst the three of these robbers. * * *

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***

[Kent police] get Ty Kremling’s cell phone. They find Ty

Kremling, download his cell phone. There’s pictures of Ty with

guess who, Damantae Graham wielding his two guns in the picture.

{¶ 66} During the state’s case-in-chief, the prosecutor asked Kremling,

“Did you know Damantae to carry a weapon, carry a gun?” Kremling answered,

“Yeah, I knew he had one.” Kremling also testified that Graham and Grier had

been carrying handguns during the robbery. Kremling said he did not know the

type of handguns they were carrying but he knew they were not revolvers.

{¶ 67} The state introduced a photo of Graham, Kremling, and another

person that had been retrieved from Kremling’s cell phone. The photo, state’s

exhibit No. 18, shows a smiling Graham holding two handguns. Kremling testified

that the photo was taken at the McElrath Avenue house “a few days before the

incident.”

{¶ 68} Grier testified that he and Graham each carried a .380-caliber High

Point semiautomatic handgun during the robbery. Grier stated that his handgun had

gone missing a week before the incident but that on the day of the robbery, Graham

had given it back to him. When asked whether he knew what had happened to

Graham’s gun, Grier said that a couple days after the murder, Graham told him that

he had broken up his gun and thrown it in a wooded area.

{¶ 69} Lewandowski testified that the barrel of the handgun that Graham

used to kill Massa was “squared off.” He said, “[The gun] was not a revolver. It

was a semi-automatic.”

{¶ 70} The trial court admitted state’s exhibit No. 18, without objection, at

the close of the state’s case.

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2. Analysis

{¶ 71} Evid.R. 404(A) is a general prohibition on using evidence of a

person’s character to prove that he acted “in conformity therewith on a particular

occasion.” Evid.R. 404(B) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

{¶ 72} In State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

N.E.2d 1278, ¶ 20, we set forth a three-part analysis for determining the

admissibility of other-acts evidence: to be admissible, (1) the evidence must be

relevant, Evid.R. 401, (2) the evidence cannot be presented to prove a person’s

character to show conduct in conformity therewith but must instead be presented

for a legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the

evidence cannot be substantially outweighed by the danger of unfair prejudice,

Evid.R. 403. The admissibility of other-acts evidence pursuant to Evid.R. 404(B)

is a question of law. State v. Hartman, ___Ohio St.3d ___, 2020-Ohio-4440,

___N.E.3d___, ¶ 22. The court is precluded from admitting improper character

evidence under Evid.R. 404(B), but it has discretion to allow other-acts evidence

that is admissible for a permissible purpose. Hartman at ¶ 22, citing Williams at

¶ 17.

a. Prosecutor’s statement

{¶ 73} We first briefly evaluate whether the prosecutor’s statement that

Graham possessed a gun was improper “evidence.” During his opening statement,

the prosecutor said, “Damantae Graham is known to carry weapons, to have a

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weapon, and this day [the day of the murder] he has with him his weapon, 380 semi-

automatic pistol.” (Emphasis added.)

{¶ 74} An attorney’s opening statement is an outline of what the attorney

expects the evidence to be at trial. See State v. Clay, 181 Ohio App.3d 563, 2009-

Ohio-1235, 910 N.E.2d 14 (8th Dist.), ¶ 45; see also Parrish v. Jones, 138 Ohio

St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 22. It is designed to help the jury follow

the evidence as it is presented; it is not evidence. See Clay at ¶ 45; Crane v.

Sowders, 889 F.2d 715, 718 (6th Cir.1989) (“The concept that opening statements

are not evidence is too elemental to deserve discussion”). The trial court in this

case informed the jury as much in its jury instructions. Because the prosecutor’s

statement that Graham was “known to carry weapons” was not “evidence,”

Graham’s contention that such statement was impermissible under Evid.R. 404(B)

lacks merit.

b. Testimony about gun possession

{¶ 75} We next address Kremling’s testimony, in response to the

prosecutor’s questions, that Graham possessed a gun. Under the first part of the

Williams test, we must determine whether this evidence was relevant. The question

is not whether the evidence was relevant to the ultimate question of guilt but

whether the evidence was relevant to the particular purpose for which it was

offered. Hartman, ___Ohio St.3d ___, 2020-Ohio-4440, ___N.E.3d___, at ¶ 26.

“[T]he other-acts evidence must be probative of a ‘purpose other than the person’s

character or propensity to behave in a certain way.’ ” Id., quoting United States v.

Gomez, 763 F.3d 845, 860 (7th Cir.2014). Testimony that a defendant was seen

with a gun—not necessarily the gun involved in the offense—has been held to be

admissible when the witness’s sighting had “temporal and spatial proximity to the

crime in question.” State v. Crosby, 186 Ohio App.3d 795, 2010-Ohio-1584, 928

N.E.2d 795, ¶ 13 (8th Dist.), citing State v. Davis, 8th Dist. Cuyahoga No. 35421,

1977 WL 201136 (Jan. 6, 1977). While questioning Kremling, the prosecutor asked

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whether Kremling knew Graham to carry a gun, and Kremling answered that he

knew Graham had one.

{¶ 76} Assuming that information was relevant, the prosecutor’s

questioning and Kremling’s testimony fail the second part of the Williams analysis

because it appears the state’s purpose was precisely the purpose forbidden by

Evid.R. 404(B), as propensity evidence. See Williams, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278, at ¶ 20; Hartman at ¶ 21. Generalized statements

and testimony that a defendant is known to carry a gun are generally inadmissible

because they are meant to portray the defendant as a violent person who regularly

carried guns. See Crosby at ¶ 14; State v. Robinson, 7th Dist. Jefferson No. 05 JE

8, 2007-Ohio-3501, ¶ 55. Kremling’s elicited testimony on this subject was meant

to prove Graham’s character and that he acted in conformity therewith. See State

v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 157.

{¶ 77} Moreover, we hold that Kremling’s testimony that he knew Graham

had a gun also fails the third part of the Williams test, because it had little probative

value and any value was substantially outweighed by the danger of unfair prejudice.

{¶ 78} Thus, Kremling’s testimony that he knew Graham to carry a gun was

improper.

c. Photo of Graham holding two guns

{¶ 79} We next evaluate the photo of Graham under the Williams test.

Graham contends that the two handguns in the photo were not connected to the

murder. The state never recovered the murder weapon. But the state argues that

either gun depicted in the photo could have been the murder weapon. Evidence

presented at trial suggests that the handguns in the photo may have been the

handguns used in the crimes. Kremling testified that the photo was taken at the

McElrath Avenue house “a few days before the incident.” As noted above, courts

have allowed into evidence testimony that the defendant was seen with a gun—not

necessarily the gun involved in the offense—based on the “temporal and spatial

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proximity” of the sighting to the crime in question. Crosby, 186 Ohio App.3d 453,

2010-Ohio-1584, 928 N.E.2d 795, at ¶ 13.

{¶ 80} Grier also testified that he and Graham each carried a .380-caliber

semiautomatic handgun during the crimes. And Lewandowski testified that the gun

used to shoot Massa was not a revolver but a semiautomatic gun.

{¶ 81} Graham claims that it requires speculation to conclude that the guns

in the photo were the guns used in the crimes, because no evidence connected the

guns in the photo to the crimes. But “ ‘[u]ncertainty whether the weapons evidence

was actually used in the crime goes to the weight of such evidence, not its

admissibility.’ ” Commonwealth v. Williams, 58 A.3d 796, 801 (Pa.Super.2012)

(upholding admission of photo of defendant in possession of weapon similar to the

one used to commit the charged offenses), quoting Commonwealth v. Owens, 929

A.2d 1187, 1191 (Pa.Super.2007).

{¶ 82} Finally, Grier testified that he lost his handgun a week before the

robbery but that on the day of the robbery, Graham had given it back to him, which

shows that Graham had Grier’s handgun before the crimes. This is a further

indication that the two handguns Graham is holding in the photo may have been the

two handguns used in the crimes.

{¶ 83} Thus, we conclude that the photo had some relevance and satisfies

the first part of the Williams test.

{¶ 84} Turning to the second part of the Williams test, we must determine

whether the photo was presented as character evidence, which is impermissible, or

whether it was presented for a legitimate purpose. Williams, 134 Ohio St.3d 521,

2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20; Evid.R. 404(B). The photo shows a

smiling Graham holding two handguns, with one of them pointing toward the

camera.

{¶ 85} Graham invokes State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-

8011, 92 N.E.3d 821, in arguing that the photo showing him holding the firearms

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violated Evid.R. 404(B). In Thomas, the victim died from a stab wound to the neck.

Without objection, the state introduced five knives that were seized from the

defendant’s residence but were unrelated to the murder. The prosecutor described

them to the jury as “ ‘full Rambo combat knives.’ ” Id. at ¶ 48. This court held

that the admission of the knives violated Evid.R. 404(B) and amounted to plain

error because the state knew that the knives were not used in connection with the

murder. Id. at ¶ 45, 49. This court added, “It is apparent that the state offered this

evidence to portray Thomas as a person of violent character who had acted in

conformity with his propensity to kill—a use of evidence prohibited by Evid.R.

404(B) * * *.” Id. at ¶ 48.

{¶ 86} Graham argues that the admission of the photo showing him holding

and posing with the guns was similar to the admission of the knives in Thomas

because the guns in the picture were not connected to the murder. But unlike in

Thomas, in this case, the state sought to prove that the handguns in the photo were

the same handguns used during the robbery and murder. Thus, Graham’s reliance

on Thomas is misplaced.

{¶ 87} The state argues that the photo of Graham holding the two guns was

admissible to prove the identity of the shooter, because Graham told investigators,

“I wasn’t there,” which placed the identity of the shooter in dispute.

{¶ 88} Other acts can be evidence of identity in two situations. State v.

Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). “First are those situations

where other acts ‘form part of the immediate background of the alleged act which

forms the foundation of the crime charged in the indictment,’ and which are

‘inextricably related to the alleged criminal act.’ ” Id. at 531, quoting State v.

Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975). “Other acts may also prove

identity by establishing a modus operandi applicable to the crime with which a

defendant is charged. ‘Other acts forming a unique identifiable plan of criminal

activity are admissible to establish identity under Evid.R. 404(B).’ ” Lowe at 531,

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quoting State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus.

“ ‘Modus operandi’ literally means method of working.” Hartman, ___Ohio St.3d

___, 2020-Ohio-4440, ___N.E.3d___, at ¶ 37. “It is evidence of a signature,

fingerprint-like characteristics unique enough ‘to show that the crimes were

committed by the same person.’ ” Id., quoting Weissenberger, Federal Evidence,

Section 404.17 (7th Ed.2019).

{¶ 89} Here, the photo was not admissible to prove identity. It did not show

that Graham was at the apartment at the time of the crimes or directly tie him to

those crimes. The photo also fails to establish modus operandi because it provides

no “behavioral fingerprint” associated with the crimes in question. See Lowe at

531; Hartman at ¶ 38. Thus, the state’s theory for the admissibility of the photo

lacks merit.

{¶ 90} Therefore, even though the photo may have had some relevance, it

was introduced to suggest that Graham has a propensity for gun violence and to

imply that he acted in conformity with that character on the day of the crimes at

issue. We hold that the photo fails the second part of the Williams test.

{¶ 91} Finally, we also conclude that the photo fails the third part of the

Williams test, because the probative value of the photo was substantially

outweighed by the danger of unfair prejudice. The photo was probative because it

showed handguns that might have been used in the crimes. On the other hand, the

photo, which shows a smiling Graham pointing a handgun at the camera, was highly

prejudicial. The trial court also provided no limiting instructions that this evidence

was not being offered to prove Graham’s character. Compare Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 24 (limiting instructions

lessened the prejudicial effect of other-acts testimony). Thus, we conclude that the

photo fails to satisfy the third part of the Williams test.

{¶ 92} Therefore, we hold that the photo was improperly admitted.

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3. No plain error

{¶ 93} As discussed earlier, to establish plain error, Graham must show that

an error occurred, that the error was plain, and that the error affected the outcome

of the trial. Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. Graham cannot meet

his burden to prove that the prosecutor’s statement, Kremling’s testimony, or the

introduction of the photo prejudiced him by affecting the outcome of the trial, in

light of the remaining evidence of Graham’s guilt. Such evidence included

Lewandowski’s eyewitness testimony describing the shooter, a description that

matched Graham, and Grier’s and Kremling’s testimony that Graham admitted that

he had shot Massa during the robbery. Thus, no plain error occurred.

{¶ 94} Based on the foregoing, we reject proposition of law No. IV.

E. Prosecutor bolstered witness credibility

{¶ 95} In proposition of law No. III, Graham argues that the prosecutor

improperly bolstered the credibility of two of his codefendants, Kremling and Grier.

However, defense counsel failed to object at trial and therefore Graham has

forfeited all but plain error. See Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873

N.E.2d 306, at ¶ 23. Graham also argues that defense counsel were ineffective by

failing to object to the prosecutor’s bolstering during his opening statement, his

closing rebuttal argument, and his questioning of the codefendants.

{¶ 96} First, Graham argues that the prosecutor improperly vouched for the

testimonies of Kremling and Grier during his opening statement. It is improper for

a prosecutor to vouch for the credibility of a witness at trial. Vouching occurs when

the prosecutor implies knowledge of facts outside the record or places his or her

personal credibility in issue. See, e.g., State v. Myers, 154 Ohio St.3d 405, 2018-

Ohio-1903, 114 N.E.3d 1138, ¶ 145; Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880

N.E.2d 31, at ¶ 232. A prosecutor also may not express his or her personal belief

or opinion as to the credibility of a witness. State v. Williams, 79 Ohio St.3d 1, 12,

679 N.E.2d 646 (1997).

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{¶ 97} During his opening statement, the prosecutor stated that Kremling

and Grier lied to the police about the robbery and murder after they were first

arrested. The prosecutor added that they were “eventually prevailed upon by their

parents, their girlfriends and, eventually, their attorneys to tell the truth, come clean.

And they agree[d] to cooperate and give truthful statements.” No vouching

occurred. The prosecutor neither implied knowledge of out-of-court information

nor placed the prosecutor’s own credibility in issue. The prosecutor merely

discussed the circumstances leading to Kremling’s and Grier’s eventual decision to

cooperate with police, and the testimony at trial supported his statements. See State

v. Cody, 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 35. No error occurred.

{¶ 98} Second, Graham argues that the prosecutor improperly vouched for

Kremling and Grier during his closing rebuttal argument. During rebuttal, the

prosecutor addressed defense counsel’s closing-statement attack on Kremling’s and

Grier’s credibility. The prosecutor stated:

Three young men took that stand and implicated themselves in

aggravated murder; testified under oath that they committed

aggravated murder. The testimony they gave on that witness stand

is admissible against them at their own trials. * * *

***

What does matter here though is that they tell the truth

because nobody is gonna talk to them or their attorneys if they’re

lying or not being truthful and they know that.

* * * Every action that Marquis [Grier] and Ty [Kremling]

and Graham took inside that apartment was corroborated by the two

occupants of the apartment. Every one consistent down to the last

detail. * * *

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And you heard them testify the co-defendants themselves

have been separated for the past eight months. They’ve been

isolated from each other for the last eight months for that very

reason.

The version is the same, identical because it’s the truth. You

all know that when you make up a story and you lie it’s different

every time you tell it. You can’t keep it straight. That’s how you

catch people in lies. * * * If they’re lying something is gonna

change. But the truth is the truth is the truth. It always stays the

same. And that’s what you heard from the witness stand.

{¶ 99} None of these comments were improper. They neither implied

knowledge of out-of-court information nor placed the prosecutor’s own credibility

in issue. Each comment dealt with matters that the jury could properly consider in

evaluating Kremling’s and Grier’s credibility: Kremling and Grier each admitted

unfavorable facts about their participation in the crimes, they had been separated

from each other for the past eight months and yet their testimonies were consistent,

the details given in their testimonies were corroborated by the victims’ testimonies,

and they were motivated to tell the truth. See Myers, 154 Ohio St.3d 405, 2018-

Ohio-1903, 114 N.E.3d 1138, at ¶ 147. “This type of argument is not improper

vouching when, as here, the prosecutor is responding to defense counsel’s attacks

on a witness’s credibility and refers to facts in evidence that tend to make the

witness more credible.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836

N.E.2d 1173, ¶ 120. No error occurred.

{¶ 100} Finally, Graham argues that the prosecutor improperly bolstered

the credibility of Kremling and Grier by asking them about the truthfulness of their

testimony. Kremling testified that he initially lied to the police about the crimes.

He explained that he later told the truth: “[W]e all got caught, um, and I came to

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talk to you [the prosecutor]. That’s when I first told the truth.” The prosecutor then

asked, “Are you telling the truth today?” Kremling responded, “Yes, I am.”

Similarly, Grier testified that he initially lied to the police but that he decided to tell

the truth after talking to his father, his girlfriend, and his lawyer. The prosecutor

then asked, “Are you telling the truth today?” Grier answered, “Yes.”

{¶ 101} “Both at common law and under the Federal Rules, the general

norm is that the witness’s proponent may not bolster the witness’s credibility before

any attempted impeachment.” 1 McCormick, Evidence, Section 33, at 250 (8th

Ed.2020). Similarly to Fed.R.Evid. 608(a), Ohio Evid.R. 608(A) provides that

“evidence of truthful character is admissible only after the character of the witness

for truthfulness has been attacked by opinion or reputation or otherwise.” Here, the

prosecutor asked the witnesses, “Are you telling the truth today?” before their

credibility had been attacked on cross-examination. Although that question should

not have been asked, we conclude that the prosecutor did not give either Kremling

or Grier more credibility in asking it, because both witnesses swore to tell the truth

before they testified. See State v. Howard, 2d Dist. Montgomery No. 20575, 2005-

Ohio-3702, ¶ 46. Thus, no plain error occurred.

{¶ 102} As for his ineffective-assistance-of-counsel claims, Graham fails to

show that he was prejudiced by any of the alleged failures by defense counsel,

particularly given the overwhelming evidence of his guilt.

{¶ 103} Based on the foregoing, we reject proposition of law No. III.

F. Improper admission of victim-impact evidence

{¶ 104} In proposition of law No. VI, Graham argues that the trial court

erred by admitting victim-impact testimony during the guilt phase of the trial. We

agree, but we conclude that Graham was not prejudiced by the admission of this

victim-impact evidence.

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1. Joe Massa’s testimony

{¶ 105} During the guilt-phase proceedings, over the defense’s objection,

Joe Massa (“Mr. Massa”), the victim’s father, testified about his son’s life,

expressing great pride in his son’s achievements, acknowledging the future plans

and dreams that his son had and that he had for his son, conveying to the jury the

immense amount of love and admiration he had for his son, and identifying some

of the ways in which his life has changed as a result of his son’s death and some of

the difficulties that a life without him will bring. The testimony spanned 10 pages

of the guilt-phase transcript, with the state asking Mr. Massa approximately 20

questions regarding his son.

{¶ 106} Mr. Massa testified that Nick was the third oldest of his four

children. He stated, “Nick was the ideal son; fun, very curious, so I had the full-

time job teaching Nick ‘cause he was constantly full of questions, constantly

wanting to learn, um, kept me very busy, very busy.” Mr. Massa said, “[Nick]

really got into woodworking at an early age with my—my father-in-law. Nick was

definitely a mama’s boy ‘til he got older and then he started to become a daddy’s

boy.” Mr. Massa expressed that Nick loved building things, and he reminisced

about how he and Nick had built a bench in the garage, and said that Nick had

gotten “some new tools because he had some things that he wanted to build this

summer.”

{¶ 107} When asked about Nick’s education, Mr. Massa stated that his son

had gone to Westlake High School and that he had been interested in science and

then had become more interested in business. Mr. Massa said that he had been

surprised at Nick’s interest in business and then stated, “I think he started to grasp

a little bit more of what I was doing * * * ‘cause I’m in business. * * * [And] he

became more and more of wanting to be successful and making us proud to the

point where * * * he pretty much vowed that he would have a great job and buy us

a home in Florida.” When asked whether his son had had any jobs, Mr. Massa said,

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“Nick delivered papers at a very early age,” and Mr. Massa listed several other jobs

Nick had held over the years, noting that one reason Nick worked was to help him

pay for the family’s fish tank.

{¶ 108} The prosecutor inquired about the fish tank. Mr. Massa then

described his son’s passion for caring for the fish in the fish tank in the family living

room and his influence in replacing the family’s small fish tank with a 55-gallon

salt-water fish tank. Mr. Massa began by explaining that Nick “kept bugging” him

and eventually convinced him to get a larger fish tank. Mr. Massa informed the

jury that Nick took care of that tank and then “started pushing” him to get a salt-

water tank. Mr. Massa testified that he had owned a salt-water fish tank as a child,

so he knew that “there was a lot to it” and he was really “not up to doing it,” but

Nick had talked him into it. Then Mr. Massa explained the complex salt-water-

tank system that Nick had installed and described it as “unbelievable.” While

explaining the complexities of the system, Mr. Massa said, “I can’t even—I’m

learning,” and he stated, “Nick has left me with a lot with this fish tank. I’m having

to learn on my own, but I’m getting there.”

{¶ 109} The prosecutor then asked Mr. Massa why Nick had decided to

attend Kent State University and what he had been studying there. Mr. Massa

informed the jury that his son had been studying business at the university. Mr.

Massa said, “I attended Kent in 1979. I didn’t make it through graduation. I think

Nick wanted to do what I couldn’t. In fact, we know he did.” Mr. Massa added,

“And we were both getting * * * set for him to be able to help me with my business

* * *. * * * I was really looking forward to Nick being able to give me some advice

on what he’s learning in today’s business, possibly working with me a little bit this

year so he can learn my side, helping each other out there.”

{¶ 110} According to Mr. Massa, on the day before his son’s death, his wife

told him that their son had sent her a text indicating that he was having a “miserable

day.” Mr. Massa explained to the jury, “Nick had just gotten his first real girlfriend

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and I think I said something like he’s probably having some love problems, which

I was having a hard time with knowing that I was having to share Nick with

somebody else.” Not long after his wife told him that information, Mr. Massa saw

a car pull up and his son came “running up the drive all happy.” Mr. Massa testified

that his son had brought Haithcock and Lewandowski to the house, introduced

them, and showed them around. Mr. Massa commented, “And I remember standing

at the door looking—so proud of him that he picked up new friends so quickly.

Because his roommate, who was one of his best friends, had left after the first

quarter, so Nick was very alone and he already picked up what he thought were

new friends. And just watching Nick be the leader that I knew he was and was

gonna be.”

{¶ 111} Mr. Massa stated that when Nick was preparing to leave with his

friends, Nick indicated that he would come home the following weekend. Mr.

Massa told Nick before he left, “Nick, you have no idea how proud I am of you and

how much I love you.” Mr. Massa continued, “And he hugged me and said I love

you, too, dad. And that’s the last time I got to talk to him. He—he was my best

friend.”

{¶ 112} The state then had Mr. Massa identify Nick’s photograph. Mr.

Massa stated, “This is my son Nick and I know he’s with me right now.” Following

Mr. Massa’s testimony, the state introduced Nick’s photograph into evidence.

2. Analysis

{¶ 113} Victim-impact evidence includes evidence relating to the victim’s

personal characteristics and the impact that the crimes had on the victim’s family.

State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 259;

Payne v. Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

The admission of such evidence is limited to the sentencing phase of the death-

penalty proceedings. See R.C. 2930.13, 2930.14(A), and 2947.051; Article I,

Section 10(a)(A)(3), Ohio Constitution. We have “permitted victim-impact

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testimony in limited situations in capital cases when the testimony is not overly

emotional or directed to the penalty to be imposed.” (Emphasis added.) State v.

Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 79. And we have

upheld the admission of this testimony at the guilt phase of the trial only when the

evidence was relevant to the facts attendant to the offense. State v. Fautenberry,

72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995); see McKelton at ¶ 259; Evid.R.

402 (evidence that is not relevant is not admissible).

a. Mr. Massa’s testimony was irrelevant

{¶ 114} Graham argues that Mr. Massa’s testimony had nothing to do with

the facts of the case and was presented solely to prejudice the jury. The state argues

that Mr. Massa’s testimony was used to prove that Nick was a living person and

was permissible because the testimony was not overly emotional and did not

address the penalty.

{¶ 115} To be admissible at trial, evidence must be relevant. Evid.R. 402.

The state cites State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88,

¶ 56, in arguing that Mr. Massa’s testimony was admissible to prove that Nick had

been a living person, which is an element of an aggravated-murder charge. The

state further argues that Nick’s pre-death photograph was admissible for purposes

of identifying the victim, see State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,

767 N.E.2d 166, ¶ 57, and that Mr. Massa identified the photograph of his son

during his testimony.

{¶ 116} In Noling, we upheld the admission of a neighbor’s testimony that

the victims had been gregarious and meticulous, but we noted that the neighbor’s

testimony helped explain why the neighbor had gone to check on the victims and

also helped to establish a time of death. Noling at ¶ 56. And we upheld the

admission of a relative’s testimony that had “simply established that the [victims]

had been living persons.” Id. at ¶ 55-56. The limited testimony presented in Noling

is in sharp contrast to Mr. Massa’s detailed testimony about his son. While Mr.

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Massa identified his son’s photograph, the remainder of his testimony went beyond

what was necessary to prove that his son had been a living person. Thus, we reject

this rationale for permitting significant portions of Mr. Massa’s testimony.

{¶ 117} At a sidebar discussion during the trial, the prosecutor also argued

that Mr. Massa’s testimony was admissible as long as it did not “touch on

recommendations to the Court as to penalty or sentencing.” It is true that Mr. Massa

did not mention penalties during his testimony. However, the fact that Mr. Massa’s

testimony was not directed to the penalty to be imposed does not mean that the

prosecutor could elicit testimony about Nick’s life and the impact his death has had

upon his father, especially when that testimony provided the jury with no relevant

facts attendant to the offense and the jury had already received evidence that Nick

had been a living person from Haithcock’s and Lewandowski’s testimony.

{¶ 118} The state also relies on State v. Maxwell, 139 Ohio St.3d 12, 2014-

Ohio-1019, 9 N.E.3d 930, in arguing that Mr. Massa’s testimony was admissible.

In Maxwell, we upheld the admission of testimony about the victim’s family and

her divorce during the guilt phase of trial, because such testimony provided

background information about the victim’s relationship with the defendant and the

witnesses who testified. Id. at ¶ 134-137. Maxwell is not instructive here, because

Mr. Massa’s testimony did not provide relevant background regarding the

circumstances of Nick’s death.

{¶ 119} The state elicited victim-impact testimony from a justifiably

grieving father during the guilt phase of the trial, and much of that testimony had

nothing to do with the crime. See State v. McKnight, 107 Ohio St.3d 101, 2005-

Ohio-6046, 837 N.E.2d 315, ¶ 99 (father’s statement that “his daughter’s

disappearance was ‘like somebody hit [him] in the stomach with a sledgehammer’

was of questionable relevance”). This testimony was irrelevant and should not have

been admitted at trial.

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b. Mr. Massa’s testimony did not prejudice Graham

{¶ 120} Having concluded that the trial court erred in admitting Mr.

Massa’s testimony, we must determine whether the testimony resulted in reversible

error. To determine whether an error affected the substantial rights of the defendant

and requires a new trial, we must ascertain “(1) whether the defendant was

prejudiced by the error, i.e., whether the error had an impact on the verdict, (2)

whether the error was not harmless beyond a reasonable doubt, and (3) whether,

after the prejudicial evidence is excised, the remaining evidence establishes the

defendant’s guilt beyond a reasonable doubt.” State v. Arnold, 147 Ohio St.3d 138,

2016-Ohio-1595, 62 N.E.3d 153, ¶ 50 (lead opinion), citing State v. Harris, 142

Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37 (setting forth the three-part

analysis for determining whether the error affected the substantial rights of the

defendant and thus requires a new trial).

i. The standard for determining whether testimony is overly emotional

{¶ 121} For purposes of analyzing whether the admission of Mr. Massa’s

testimony constituted reversible error in this case, we focus on whether the

testimony was overly emotional.

{¶ 122} The victim-impact testimony that we have upheld as admissible or

deemed not prejudicial in other cases was not overly emotional. See State v.

Reynolds, 80 Ohio St.3d 670, 679, 687 N.E.2d 1358 (1998); State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 237. The “overly emotional”

standard is derived from this court’s decision in Reynolds. See Reynolds at 679.

{¶ 123} Testimony is overly emotional when it is likely to inflame the

passions of the jurors and elicit a purely emotional response that would inhibit the

jurors from making an objective and rational determination regarding the

defendant’s guilt and/or the appropriate punishment. See People v. Simon, 1

Cal.5th 98, 138, 375 P.3d 1, 204 Cal.Rptr.3d 380 (2016) (emotional testimony is

permissible if it is relevant and is not inflammatory rhetoric that elicits purely

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emotional or irrational responses from the jurors); see also People v. Weaver, 53

Cal.4th 1056, 1082, 273 P.3d 546, 139 Cal.Rptr.3d 355 (2012) (“testimony was

emotionally wrenching, [but] it was not so extreme as to divert the experienced trial

judge’s attention from his proper role,” and the judge stated that it did not cause

him to “ ‘react with a rash or purely subjective response’ ”); State v. Bernard, 608

So.2d 966, 970-972 (La.1992) (when determining whether testimony was overly

emotional, a court analyzes whether the testimony inserted arbitrary factors that

likely influenced the jurors’ decisions).

{¶ 124} This court has yet to adopt or set a standard in determining whether

the admission of victim-impact testimony resulted in error. In making this

determination in the past, we have generally simply described the testimony and

then stated whether or not the testimony was overly emotional and/or resulted in

error. See, e.g., Reynolds at 678-679; State v. McNeill, 83 Ohio St.3d 438, 446-

447, 700 N.E.2d 596 (1998); State v. Hartman, 93 Ohio St.3d 274, 292, 754 N.E.2d

1150 (2001); State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d

315, ¶ 91-99; Lang at ¶ 235-238; State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-

1019, 9 N.E.3d 930, ¶ 136-137; State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-

4347, 54 N.E.3d 80, ¶ 239-241; State v. Obermiller, 147 Ohio St.3d 175, 2016-

Ohio-1594, 63 N.E.3d 93, ¶ 103-104.

{¶ 125} In fact, it would not be prudent for us to establish a rigid set of

factors to employ in evaluating this testimony, given the variables present in each

case. This is apparent from our review of our precedent and that of our sister courts

across the country. See, e.g., Malone v. State, 2007 OK CR 34, 168 P.3d 185, ¶ 62

(whether testimony is too emotional is a subjective determination); Salazar v. State,

90 S.W.3d 330, 336 (Tex.Crim.App.2002), quoting Mosley v. State, 983 S.W.2d

249, 262 (Tex.Crim.App.1998) (“there is no ‘bright and easy line’ for deciding

precisely what evidence is and is not admissible as either victim character or victim

impact evidence”). Nevertheless, we believe it may be helpful to trial courts and

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parties if we set forth a nonexhaustive list of factors that may be used in making

this determination, with the understanding that these factors may not be applicable

in every case and that in other cases, other relevant factors may be identified and

applied.

{¶ 126} We find the following factors relevant to making the determination

in this case: (1) the length of the victim-impact testimony, see Lang, 129 Ohio St.3d

512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 238 (witnesses briefly summarized the

victims’ lives); Lambert v. State, 675 N.E.2d 1060, 1065 (Ind.1996) (victim-impact

testimony that spanned 29 transcript pages was not brief and the error in admitting

it was not harmless); State v. Taylor, 669 So.2d 364, 371 (La.1996) (victim-impact

testimony took up only 10 pages of a 793-page penalty-phase transcript, and any

possible prejudicial effect was diluted by the defendant’s presentation of a lengthy

and detailed mitigation case); Malone at ¶ 60-61 (victim-impact testimony that took

up 36 pages of the transcript, 28 pages of which was uninterrupted, detailed

narrative, went well beyond the limitations for appropriate victim-impact

evidence); (2) whether witnesses, jurors, and audience members showed physical

signs of emotion during the testimony, see Reynolds, 80 Ohio St.3d at 678-679, 687

N.E.2d 1358 (court noted that witness became distraught when asked about the

effect his mother’s death had on him, but it found that the victim-impact statement

was not overly emotional); State v. Glassel, 211 Ariz. 33, 54, 116 P.3d 1193 (2005)

(although victim-impact testimony was emotional and caused the witnesses and

jurors to cry, it was not unduly prejudicial, because senseless murders create strong

emotional responses); Lawler v. State, 276 Ga. 229, 232, 576 S.E.2d 841 (2003)

(record showed that witnesses and jurors became emotional during victim-impact

evidence but there were no outbursts or displays of emotion that would have unduly

prejudiced the defendant); (3) the detail and depth of the victim-impact testimony

with regard to the murder victim, see Salazar at 336 (the case law allowing states

to put on evidence providing a glimpse into the victim’s life and background is not

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an invitation to give a replay of the victim’s life); Malone at ¶ 60 (victim-impact

statements were never meant to be eulogies); (4) whether the victim-impact witness

used emotionally charged language, State v. Rose, 231 Ariz. 500, 513, 297 P.3d 906

(2013) (court noted that it did not condone the vengeful language used by the

victim-impact witness or her reference to the defendant as a “cop killer”); Conover

v. State, 1997 OK CR 6, 933 P.2d 904, 920 (statements that the victim was

“butchered like an animal” and that the defendant “butchered him” have no place

in a victim-impact statement), abrogated on other grounds, Bosse v. Oklahama, __

U.S. __, 137 S.Ct. 1, 196 L.Ed.2d 1 (2016); (5) the number of victim-impact

witnesses, see Lawler at 232 (five victim-impact witnesses testified, but because

each witness’s testimony was brief, the trial court did not abuse its discretion in

allowing the testimony); and (6) our precedent in similar cases involving allegedly

overly emotional victim-impact testimony, see Wilks at ¶ 79; see also People v.

Verdugo, 50 Cal.4th 263, 298, 236 P.3d 1035, 113 Cal.Rptr.3d 803 (2010) (in

determining whether victim-impact testimony was admissible, the California

Supreme Court compared the testimony to victim-impact testimony that it had

found admissible in the past). Clearly, this list is not exhaustive, and it also should

not be treated as a checklist. We list these factors merely as matters to be

considered.

ii. Mr. Massa’s testimony was not overly emotional

{¶ 127} Applying the analysis articulated above to the facts of this case, we

conclude that Mr. Massa’s testimony was not overly emotional; however, we

acknowledge that this is a close call.

{¶ 128} In this case, Mr. Massa’s testimony takes up 10 pages of the guilt-

phase transcript (which, excluding voir dire, covers 562 pages), and those 10 pages

include 20 or so questions asked by the prosecutor and three instances of

uninterrupted narrative by Mr. Massa. The length of this testimony is not

overwhelming in comparison to the length of testimony permitted by our sister

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courts. See, e.g., People v. Dykes, 46 Cal.4th 731, 782, 209 P.3d 1, 95 Cal.Rptr.3d

78 (2009) (victim-impact testimony was not too lengthy when one witness’s

testimony covered 5 pages of transcript, a second covered 9 pages of transcript, and

the third covered 18 pages of transcript); Taylor, 669 So.2d at 371 (victim-impact

testimony took up only 10 pages of a 793-page penalty-phase transcript, and any

possible prejudicial effect was diluted by the defendant’s presentation of a lengthy

and detailed mitigation case); State v. Washington, 355 Or. 612, 658, 330 P.3d 596

(2014) (witness testimony that covered 23 pages of a 2,000-page guilt-phase

transcript and that contained minimal victim-impact evidence was harmless).

However, the length of Mr. Massa’s victim-impact testimony is not insignificant,

given that the testimony was irrelevant and therefore inadmissible during the guilt

phase of the proceedings.

{¶ 129} The record does not indicate that there were any physical

manifestations of emotion by Mr. Massa, the jury, or members of the audience. But

the testimony presented a detailed description of Nick, which was elicited by the

state from his grieving father. Mr. Massa discussed his son’s life at length—his

accomplishments and future aspirations—and not only conveyed to the jury his

sincere love for and admiration of his son, whom he called his “best friend,” but

also identified the effect that his son’s death had on some of his own home

responsibilities. Mr. Massa recounted for the jury the last words that he spoke to

his son and the last words his son spoke to him. And he further informed the jury,

when identifying Nick’s photograph, “This is my son Nick and I know he’s with

me right now.” While Mr. Massa was the only victim-impact witness to testify

during the trial, it is hard to imagine that it was not impactful—the jury was left

with a loving father’s last memory of his only son prior to the state’s resting its

case.

{¶ 130} Mr. Massa’s impactful testimony is not unlike some of the other

victim-impact testimony that we have permitted in previous cases. In Reynolds, 80

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Ohio St.3d 670, 687 N.E.2d 1358, the victim’s son testified that his mother was

from a large family, that her house had been the gathering place for the family, and

that she was a special part of their lives. Id. at 678. The son also became distraught

when trying to speak about the impact that his mother’s death had upon him,

eventually stating that his mother had been looking forward to his daughter’s

wedding and that his other daughter had lived with her for a brief period of time

and noting that his daughters missed their grandmother very much. Id. Reviewing

for plain error, this court determined that the victim-impact testimony was not

overly emotional or directed to the penalty to be imposed, and this court stated that

it could not say that the sentence would have been otherwise but for the victim-

impact evidence. Id. at 679.

{¶ 131} And in Hartman, 93 Ohio St.3d 274, 754 N.E.2d 1150, the victim’s

mother had briefly discussed the victim’s early life, her schooling, and her close-

knit family, and she had summed up the impact of her daughter’s death on the

family by stating, “[I]t’s been around nine months now since our daughter Winda

was brutally murdered. It has been an extremely bad time for us and will be from

now on. She’ll never leave our heart.” Id. at 292. This court determined that the

victim-impact testimony in Hartman was not “overly emotional.” Id.

{¶ 132} The most recent death-penalty case in which we discussed victim-

impact testimony is Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092.

In that case, the victim’s older sister presented victim-impact evidence during her

direct examination. Id. at ¶ 78. She testified that the victim loved her nieces and

nephews and she had a close relationship with her siblings. Id. She said: “[The

victim] had a beautiful heart, and she was smart, caring, funny. She loved to make

people laugh. And whenever she was anywhere, like she commanded attention.

When she was present, you knew she was in the room. It’s just like she had this

personality where like people just gravitated to her * * *.” (Ellipsis sic.) Id. We

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determined that the brief testimony was not overly emotional and that no plain error

occurred in admitting the testimony. Id. at ¶ 80.

{¶ 133} Here, the state elicited from Mr. Massa a detailed description of

Nick’s life, how much Nick was loved and admired by his father, and the additional

responsibilities placed on Mr. Massa as a result of Nick’s death. This testimony is

impactful and leaves a lasting memory of the uniqueness of Nick Massa, but we

cannot say that it inflamed the passions of the jurors, eliciting a purely emotional

response that inhibited the jurors from making objective and rational decisions

regarding Graham’s guilt or the appropriate punishment. Therefore, we conclude

that it was not overly emotional.

iii. Graham was not prejudiced by the erroneous admission of Mr. Massa’s

victim-impact testimony

{¶ 134} As noted above, Mr. Massa’s testimony was irrelevant but not

overly emotional. We conclude that Graham was not prejudiced in the guilt phase

of the trial by the trial court’s error in admitting this testimony, because, even

assuming that the error was not harmless, when that improper testimony is excised,

the remaining evidence properly admitted at trial established Graham’s guilt

beyond a reasonable doubt. See Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62

N.E. 3d 153, at ¶ 51. Most important, Lewandowski observed the shooter and

provided a description that matched Graham, as compared to his codefendants, and

Grier and Kremling testified that Graham had admitted that he shot Nick.

{¶ 135} We also hold that this guilt-phase testimony did not prejudice

Graham in the mitigation phase, because although Mr. Massa’s testimony was

impactful, it was not overly emotional. Moreover, the trial court instructed the jury

not to be influenced “by any consideration of sympathy or prejudice” and to make

its findings “without bias, sympathy or prejudice.” We presume the jury followed

the trial court’s instructions. See State v. Treesh, 90 Ohio St.3d 460, 480, 739

N.E.2d 749 (2001).

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{¶ 136} But it is essential that we emphasize that the proper time for victim-

impact evidence is at sentencing. See R.C. 2930.13, 2930.14(A), and 2947.051;

Ohio Constitution, Article I, Section 10a(A)(3); State v. White, 85 Ohio St.3d 433,

445, 709 N.E.2d 140 (1999) (the “statutory scheme is silent as to how victim-impact

evidence may be presented to juries in capital cases,” and thus, the General

Assembly has yet to expand victim-impact evidence in capital cases to the extent

allowed in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720

[emphasis sic]). Victim-impact testimony is admissible during the guilt phase of

the proceedings only when it is relevant to the commission of the offense and it is

not overly emotional. When such evidence is improperly admitted in the guilt

phase of the proceedings, it increases the likelihood that arbitrary factors will

influence the jury’s decisions, which increases the possibility that a reversal will be

required. See Bernard, 608 So.2d at 972; Lang, 129 Ohio St.3d 512, 2011-Ohio-

4215, 954 N.E.2d 596, at ¶ 237 (“This court has permitted victim-impact testimony

in limited situations in capital cases when the testimony is not overly emotional or

directed to the penalty to be imposed”). Although it is clear that the trial court erred

in admitting Mr. Massa’s testimony in this case, we conclude that the admission of

the testimony did not constitute reversible error.

{¶ 137} Based on the foregoing, we reject proposition of law No. VI.

G. Failure to present mitigating evidence

{¶ 138} In proposition of law No. VII, Graham asserts that defense counsel

were ineffective by failing to adequately prepare and present mitigating evidence.

He specifies three alleged inadequacies: counsel (1) presented only one expert

witness, (2) failed to call any family members during mitigation, and (3) failed to

properly assist him in preparing for his unsworn statement.

{¶ 139} “The defense decision to call or not call a mitigation witness is a

matter of trial strategy. * * * Debatable trial tactics generally do not constitute

ineffective assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-

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6207, 857 N.E.2d 547, ¶ 116. Counsel in a capital case have an “obligation to

conduct a thorough investigation of the defendant’s background” to determine the

availability of mitigating evidence. Williams v. Taylor, 529 U.S. 362, 396, 120

S.Ct. 1495, 146 L.Ed.2d 389 (2000). But “ ‘strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156

L.Ed.2d 471 (2003), quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80

L.Ed.2d 674.

{¶ 140} As an initial matter, nothing in the record shows that defense

counsel did not conduct an adequate investigation. Counsel hired a psychologist

and a mitigation specialist. Billing records show that James Crates, the mitigation

specialist, spent numerous hours conducting his investigation between May 6 and

November 8, 2016. Billing records also show that Dr. Thomas Swales, the

psychologist hired by the defense, spent several hours testing and evaluating

Graham between May 11 and November 9, 2016. Although the record does not

show the full extent of defense counsel’s investigation into mitigation, “we cannot

infer a defense failure to investigate from a silent record,” State v. Were, 118 Ohio

St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244.

{¶ 141} First, Graham argues that counsel should have called more than one

expert witness. During mitigation, Dr. Swales testified about Graham’s difficult

childhood, his family’s history of mental illness and domestic violence, his

marijuana dependence and Xanax addiction, and his ability to adjust to prison life.

Dr. Swales also conducted testing of Graham, which showed that he has an IQ of

99. He testified that Graham’s youthfulness, his association with the “wrong

crowd,” and his lack of maturity were mitigating factors the jury should consider.

{¶ 142} “The decision to forgo the presentation of additional mitigating

evidence does not itself constitute proof of ineffective assistance of counsel.” State

v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997). “ ‘Attorneys need not

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pursue every conceivable avenue; they are entitled to be selective.’ ” State v.

Murphy, 91 Ohio St.3d 516, 542, 747 N.E.2d 765 (2001), quoting United States v.

Davenport, 986 F.2d 1047, 1049 (7th Cir.1993). Dr. Swales provided

comprehensive testimony about mitigating factors the jury should consider.

Moreover, Graham fails to identify other experts that defense counsel should have

called. This claim rests on mere speculation and is insufficient to establish

ineffective assistance. See State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641,

952 N.E.2d 1121, ¶ 119.

{¶ 143} Second, Graham argues that defense counsel were ineffective by

failing to call any of Graham’s family members during mitigation. Graham asserts

that his grandmother, mother, and/or sister should have been called as mitigation

witnesses.

{¶ 144} Dr. Swales testified that he had talked with Graham’s grandmother,

mother, and sister and learned “what his life was like.” He described Graham’s

chaotic childhood, his mother’s use of a belt to discipline Graham, and the family’s

history of mental illness, domestic violence, and drug abuse. Dr. Swales noted that

in the year before the murder, Graham’s grandmother was convicted of domestic

violence, following a confrontation with Graham’s mother and sister. Dr. Swales

added, “[E]ven though Damantae wasn’t there, wasn’t the victim of domestic

violence, it just shows you the adverse childhood experiences that this kid was

experiencing during his childhood, which may be different from yours or different

from mine or other people.”

{¶ 145} Dr. Swales relayed to the jury what Graham’s family members told

him about Graham’s dysfunctional family life. We decline to speculate whether

Graham’s family could have provided other favorable mitigating testimony or

would have been effective witnesses themselves. We conclude that counsel’s

decision not to call any family member as a mitigation witness was a “tactical

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choice” that cannot rightly be viewed as ineffective assistance of counsel. See

Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶ 121.

{¶ 146} Finally, Graham complains that defense counsel were ineffective

in preparing him to give an unsworn statement. Graham presents no evidence that

his counsel failed to prepare him for his statement, which was as follows: “I would

like to say my heart goes out to the victim’s family. Um, I know they probably

can’t forgive this, but mistakes do happen and people do learn from mistakes and I

just hope the jury will understand that and give me a chance to learn.” When asked

whether he had anything further to say, Graham replied, “No. That’s all.” Graham,

“not counsel, had the choice whether to testify or give an unsworn statement.”

(Emphasis added.) State v. Brooks, 75 Ohio St.3d 148, 157, 661 N.E.2d 1030

(1996). And it was Graham, not his counsel, who testified. There is simply no

evidence that counsel did not prepare Graham for his statement. Furthermore, “the

decision to give an unsworn statement is a tactical one, a call best made by those at

the trial who can judge the tenor of the trial and the mood of the jury.” Id. Thus,

Graham cannot demonstrate that counsel were ineffective for allowing him to make

this brief statement.

{¶ 147} Based on the foregoing, we reject proposition of law No. VII.

H. Defense counsel failed to utilize an investigator

{¶ 148} In proposition of law No. X, Graham argues that defense counsel

were ineffective by failing to use a defense investigator.

{¶ 149} Again, to prove ineffective assistance of counsel, Graham must

demonstrate that counsel’s performance fell below an objective standard of

reasonable representation and that there exists a reasonable probability that but for

counsel’s deficient performance, the result of the trial would have been different.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraphs two and three of the

syllabus; Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674.

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{¶ 150} Graham contends that defense counsel were ineffective by failing

to accept the trial court’s offer to appoint an investigator. During pretrial

proceedings, the prosecutor mentioned that the state would not object to the

appointment of an investigator to assist the defense in gathering mitigating

evidence. The trial court informed defense counsel, “[I]f you determine that you

need an investigator, the Court is willing to appoint an investigator.” (Emphasis

added.) Defense counsel never requested an investigator.

{¶ 151} Counsel has a duty “to make reasonable investigations or to make

a reasonable decision that makes particular investigations unnecessary.” Strickland

at 691; see State v. Decker, 28 Ohio St.3d 137, 140, 502 N.E.2d 647 (1986).

Graham argues that the failure to hire an investigator hindered the defense’s ability

to show that another person may have shot Massa. But Lewandowski and

Haithcock and Graham’s codefendants established that Graham was the killer.

Lewandowski described seeing a man matching Graham’s description shoot Massa.

And Haithcock was in the bedroom with Grier and Kremling (whom Haithcock

recognized despite Kremling’s attempt to hide his face) when the shot was fired,

which ruled them out. Moreover, Grier and Kremling testified that Graham had

admitted shooting Massa, and Planicka, who testified that Kremling, Grier, and

Graham arrived at and fled from the scene in his truck, corroborated Grier’s and

Kremling’s testimony. Thus, using an investigator would not have helped the

defense to identify someone else as the killer.

{¶ 152} Further, Graham presents nothing to show that defense counsel

were deficient by not requesting an investigator to help collect mitigating evidence.

As discussed regarding proposition of law No. VII, Crates, the mitigation specialist,

spent numerous hours conducting his investigation. Graham does not identify any

information that an investigator would have uncovered that Crates failed to obtain.

In fact, it would be impossible to make such a showing without relying on evidence

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outside the record, which is not permissible in a direct appeal. See State v.

Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 171.

{¶ 153} Graham also argues that defense counsel should have used an

investigator to locate and bring to court more mitigation witnesses. As discussed

regarding proposition of law No. VII, the mitigation specialist spoke to several of

Graham’s family members before trial. Graham does not identify other witnesses

who should have been located. Moreover, “[t]he defense decision to call or not call

a mitigation witness is a matter of trial strategy.” Elmore, 111 Ohio St.3d 515,

2006-Ohio-6207, 857 N.E.2d 547, at ¶ 116.

{¶ 154} We reject proposition of law No. X.

I. Improper trial-court order permitting consumption of alcohol during

sequestration

{¶ 155} In proposition of law No. II, Graham argues that the trial court erred

by issuing an entry allowing the jurors to consume alcohol during sequestration.

But defense counsel failed to object to the entry at trial and therefore Graham has

forfeited all but plain error. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-

4642, 873 N.E.2d 306, at ¶ 23. Graham also argues that defense counsel were

ineffective by failing to object to the trial court’s order.

{¶ 156} The trial court filed a judgment entry on jury sequestration during

the guilt-phase deliberations, which included the following order:

After all deliberations have been concluded for any

particular day of deliberations, any jurors so desiring may have

alcoholic beverages between the hours of 6:00 p.m. and 10:00 p.m.

each night, provided the total amount of beverages consumed by any

juror each night shall not exceed three cocktails, three glasses of

wine and three bottles or cans of beer. The cost of such beverages

shall be paid for by the individual juror.

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{¶ 157} Graham argues that the jurors may not have been competent to

serve due to the possibility that they consumed a substantial amount of alcohol

during sequestration. But the record shows that the jurors were never sequestered

overnight. On November 3, 2016, the jurors began guilt-phase deliberations at

11:27 a.m. and concluded them that same day. Thus, the trial court’s order never

took effect.

{¶ 158} Graham also cannot show that defense counsel were ineffective by

failing to object to this order, since the jury was never sequestered in the evening

during deliberations.

{¶ 159} In his reply brief, Graham presents a new argument. He asserts that

the order allowed the jurors to consume up to three alcoholic beverages in their

homes on the night before the mitigation hearing began and thus minimized the

seriousness of their duties. “Appellate courts generally will not consider a new

issue presented for the first time in a reply brief.” State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18. But regardless, the trial court’s

order did not apply to the jurors’ use of alcohol at home. Thus, no error occurred.

{¶ 160} We reject proposition of law No. II.

J. Defense counsel’s heavy caseload and cumulative error

{¶ 161} In proposition of law No. XI, Graham raises an ineffective-

assistance claim by arguing that defense counsel were unable to adequately defend

him because of his lead counsel’s heavy caseload. Graham also argues that the

cumulation of defense counsel’s errors resulted in his being denied the effective

assistance of counsel. As noted previously in this opinion, both deficient

performance and prejudice are required to justify reversal based on ineffective

assistance of counsel. See Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at

paragraphs two and three of the syllabus; Strickland, 466 U.S. at 687, 104 S.Ct.

2052, 80 L.Ed.2d 674.

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1. Defense counsel’s caseload

{¶ 162} Graham complains that Anthony Koukoutas, his lead defense

counsel, was working on two other death-penalty cases at the same time that he was

defending him. During a hearing in March 2016, Koukoutas informed the court

that he was defending a capital case in Mahoning County starting in June 2016 and

another capital case in Stark County beginning at the end of September 2016.

Graham also mentions that Koukoutas told the court at a July hearing, “I only got

three hours of sleep last night, so I’m a little bit out of it,” and that Koukoutas spent

a day attending a Continuing Legal Education (“CLE”) course during the trial. (We

note that the court was not in session on the day of the CLE course.)

{¶ 163} Graham does not explain in what way he believes Koukoutas failed

to adequately prepare for and investigate his case. Voir dire in his case did not

begin until October 25, 2016, and the record does not show whether Koukoutas

actually went to trial in the other capital cases or indicate how much time

Koukoutas spent preparing for them. Graham was also represented by cocounsel,

Frank Beane, and Graham does not raise issues regarding Beane’s caseload.

{¶ 164} Graham cites State v. Lorraine, 11th Dist. Trumbull No. 2003-T-

0159, 2005-Ohio-2529, and State v. Burke, 10th Dist. Franklin No. 04AP-1234,

2005-Ohio-7020, in arguing that a capital defendant has the right to two capital-

qualified attorneys at all stages of the litigation and that both must be available,

engaged, and prepared to litigate the case. Those cases held that a capital defendant

pursuing an Atkins claim for the first time in a postconviction petition was entitled

to the appointment of two certified attorneys. Lorraine at ¶ 51; Burke at ¶ 46; see

Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (Eighth

Amendment to the United States Constitution prohibits the execution of an

intellectually disabled defendant). Neither of those cases addressed a defense

counsel’s caseload when he or she is preparing for trial in a capital case.

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{¶ 165} Indigent capital defendants are generally represented by multiple

attorneys, and the attorneys may be supported by a team of other professionals,

which may include a mitigation specialist and mental-health professionals, as was

the case here. Appt.Coun.R. 5.10(A). Lead counsel “bear[s] overall responsibility

for the performance of the defense team,” but it is expected that he or she will

“allocate, direct, and supervise the work of the defense team.” Appt.Coun.R.

5.10(B). See Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, at

¶ 55 (“The rules do not require both appointed counsel to be present at every pretrial

hearing or every moment of trial”). Moreover, there is no requirement that

appointed counsel represent only one capital defendant at a time.

{¶ 166} Finally, Graham asks that we consider Appt.Coun.R. 5.06,

“Workload of counsel,” when deciding whether his right to effective assistance of

counsel was violated. That rule states:

(A) Consideration by Court. In appointing an attorney as

counsel for an indigent defendant in a capital case * * *, the court

shall consider the nature and volume of the workload of the attorney

to ensure the attorney, if appointed, can direct sufficient attention to

the defense of the case and provide competent representation to the

defendant.

(Boldface sic.)

{¶ 167} The day after appointing defense counsel, the trial court discussed

setting a tentative trial date. Koukoutas informed the court that he had two pending

death-penalty cases set for trial, one in June and one in September. The trial court

said, “[Y]ou’re going to be back to back to back.” Koukoutas expressed concern

that an August trial date would not leave enough time to gather all the material that

he needed. The trial court responded, “You can ask for a continuance.” It does

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appear from the record that the trial court only belatedly considered counsel’s

workload. However, Graham fails to show how he was prejudiced. Moreover,

when defense counsel expressed concern about having time to prepare for trial, the

trial court assured counsel that he could request a continuance if necessary, and the

trial ultimately did not start until October 25.

{¶ 168} In conclusion, Graham fails to demonstrate that Koukoutas

provided ineffective assistance, and this claim is rejected.

2. Cumulative error

{¶ 169} In State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus, we recognized the doctrine of cumulative error.

Under this doctrine, a conviction will be reversed when the cumulative effect of

errors in a trial deprives a defendant of a fair trial even though each of the numerous

errors does not individually constitute cause for reversal. Id.; see also State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.

{¶ 170} As an initial matter, Graham asks that we overrule State v. Hill, 75

Ohio St.3d 195, 661 N.E.2d 1068 (1996). He asserts that Hill holds that ineffective

assistance of counsel cannot be found based on cumulative error, but this is a

misinterpretation of Hill. Hill rejected a claim of cumulative error, stating, “Hill

received a fair trial, few errors were found, and any error found did not prejudice

his substantial rights. Such errors cannot become prejudicial by sheer weight of

numbers.” Id. at 212. Hill does not hold that cumulative errors can never result in

ineffective assistance of counsel. Each assertion of ineffective assistance of

counsel going to cumulative error depends on the merits of each individual claim;

when none of the individual claims of ineffective assistance of counsel have merit,

cumulative error cannot be established simply by joining those meritless claims

together. See, e.g., State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d

80, ¶ 296; State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d

1051, ¶ 173.

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{¶ 171} Graham argues that Hill must be overruled to comply with Sixth

Circuit precedent. Graham invokes Campbell v. United States, 364 F.3d 727 (6th

Cir.2004), which states that “trial-level errors that would be considered harmless

when viewed in isolation of each other might, when considered cumulatively,

require reversal of a conviction.” Id. at 736, citing United States v. Parker, 997

F.2d 219, 221 (6th Cir.1993). But Graham fails to mention that Campbell further

states that “the accumulation of non-errors cannot collectively amount to a

violation of due process.” (Emphasis added.) Id. In any event, nothing in Hill

conflicts with Campbell.

{¶ 172} There is no merit to Graham’s assertion that the cumulation of

counsel’s alleged errors resulted in ineffective assistance, because with regard to

only one claim did we find that counsel erred—counsel’s failure to object to the

admission of the photo of Graham holding two firearms—and that error did not

result in prejudice that deprived him of a fair trial. As explained in discussing other

propositions of law, Graham failed to establish ineffective assistance of counsel

based on counsel’s (1) failure to be prepared because of lead counsel’s involvement

in two other death-penalty cases, (2) failure to challenge a jury pool tainted by racial

prejudice, (3) failure to object to the trial court’s order permitting the jurors to

consume alcoholic beverages during sequestration, (4) failure to object to a

photograph showing Graham with two firearms, (5) failure to hire an investigator,

and (6) failure to call more witnesses during mitigation. See State v. Clinton, 153

Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 41.

{¶ 173} Based on the foregoing, we reject proposition of law No. XI.

K. Sentencing opinion

{¶ 174} In proposition of law No. XIV, Graham argues that the trial court’s

sentencing opinion should have mentioned that he is an African American male.

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{¶ 175} R.C. 2929.03(F) sets forth the findings a trial court must make

when imposing a death sentence. The statute requires that the court state in a

separate opinion

its specific findings as to the existence of any of the

mitigating factors set forth in division (B) of section 2929.04

of the Revised Code, the existence of any other mitigating

factors, the aggravating circumstances the offender was

found guilty of committing, and the reasons why the

aggravating circumstances the offender was found guilty of

committing were sufficient to outweigh the mitigating

factors.

{¶ 176} The sentencing opinion in this case discusses the mitigating factors

presented at trial. The sentencing opinion does not mention that Graham is African

American.

{¶ 177} Graham argues that the trial court should have mentioned that he is

African American, because of the racial slurs and racist comments that were made

by some members of the jury pool. However, as discussed regarding proposition

of law No. I, the trial court excused the prospective jurors who made racist

comments and racial slurs. The trial court did not need to discuss those incidents

in its sentencing opinion. Accordingly, we hold that the trial court committed no

error by not mentioning that Graham is African American in its sentencing opinion.

{¶ 178} Based on the foregoing, we reject proposition of law No. XIV.

L. Constitutionality of death sentence for a defendant who was under 21 at

time of crime

{¶ 179} In proposition of law No. IX, Graham essentially argues that

imposing a death sentence on a capital defendant who was under 21 years old at the

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time of the crime violates the Eighth Amendment. Graham does not raise a similar

argument under Article I, Section 9 of the Ohio Constitution. Because Graham

failed to raise this issue at trial, he has forfeited all but plain error. Graham also

argues that defense counsel were ineffective by failing to raise this issue at trial.

{¶ 180} Graham turned 19 years old the month before he committed these

crimes. Graham asserts his belief that all the other inmates currently on Ohio’s

death row were older than 19 years and one month when they committed their

capital crimes. But we have upheld death sentences in cases in which the defendant

committed aggravated murder at the age of 19 or younger. See State v. Pickens,

141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 252 (age 19), overruled

on other grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d

475; Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 337 (age

19); State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 203

(age 18); Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 149 (age

18); and State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 98

(age 18).

{¶ 181} In Roper v. Simmons, 543 U.S. 551, 568, 575, 125 S.Ct. 1183, 161

L.Ed.2d 1 (2005), the United States Supreme Court held that it was unconstitutional

to impose a death sentence on anyone who was under 18 years of age at the time of

the offense. In reaching this conclusion, the court referred to “ ‘the evolving

standards of decency that mark the progress of a maturing society’ to determine

which punishments are so disproportionate as to be cruel and unusual.” Id. at 561,

quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)

(plurality opinion).

{¶ 182} Extrapolating from this decision, Graham argues that “it is

possible” that the United States Supreme Court could extend Roper to find that a

defendant who turned 19 the month before committing the offense is

constitutionally barred from receiving a death sentence. But because the United

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States Supreme Court has drawn the line at 18 for Eighth Amendment purposes,

state courts are not free to invoke the Eighth Amendment as authority for drawing

it at a higher age. See In re Phillips, 6th Cir. No. 17-3729, 2017 WL 4541664, *2-

3 (July 20, 2017) (no authority exists at the present time to support the argument

that a defendant who was 19 years old at the time of the offense is ineligible to

receive a death sentence). “It has long been settled that the Supremacy Clause binds

state courts to decisions of the United States Supreme Court on questions of federal

statutory and constitutional law.” State v. Burnett, 93 Ohio St.3d 419, 422, 755

N.E.2d 857 (2001). And as the United States Supreme Court has cautioned,

[i]f a precedent of [the United States Supreme Court] has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the [lower courts]

should follow the case which directly controls, leaving to

[the United States Supreme Court] the prerogative of

overruling its own decisions.

Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct.

1917, 104 L.Ed.2d 526 (1989). Roper is controlling, and we must follow it. We

do not find plain error.

{¶ 183} As for his ineffective-assistance-of-counsel argument, Graham

does not show that counsel were ineffective by failing to challenge the imposition

of a death sentence due to Graham’s age at the time of the crime. Graham has not

shown that there was a reasonable probability that the outcome of the proceeding

would have been different based on this constitutional claim.

{¶ 184} Based on the foregoing, we reject proposition of law No. IX.

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M. Violation of Hurst v. Florida

{¶ 185} In proposition of law No. XII, Graham argues that Ohio’s capital-

sentencing procedures violate the Sixth Amendment right to a jury trial as construed

in Hurst v. Florida, __U.S.__, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In Hurst,

the United States Supreme Court held that Florida’s capital scheme violated the

Sixth Amendment because it “required the judge alone to find the existence of an

aggravating circumstance,” id. at 624, and the jury was “not require[d] * * * to

make the critical findings necessary to impose the death penalty,” id. at 622. In

State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, we held that

Ohio’s death-penalty scheme is not unconstitutional under Hurst.

{¶ 186} But Graham asks us to overturn Mason, arguing that a trial court’s

fact-finding, even if it mirrors the jury’s fact-finding, violates the Sixth

Amendment. Graham cites no authority for this claim. And his arguments are

similar to those that were raised and rejected in Mason. Id. at ¶ 39-42. Therefore,

we reject proposition of law No. XII.

N. Proportionality review by trial court

{¶ 187} In proposition of law No. XIII, Graham contends that his death

sentence is unconstitutional because the trial court did not “evaluate [it] for

proportionality in relation to other heinous crimes.” This claim fails.

{¶ 188} Contrary to Graham’s claims, R.C. 2929.05(A) does not require a

trial court to engage in proportionality review. Instead, this provision requires an

appellate court to review every death sentence for proportionality. By contrast,

R.C. 2929.03(F) sets forth the requirements for a trial court’s sentencing opinion in

a capital case. This provision says nothing about the trial court’s conducting a

proportionality analysis.

{¶ 189} Therefore, we reject proposition of law No. XIII.

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V. INDEPENDENT SENTENCE EVALUATION

{¶ 190} Having completed our review of Graham’s propositions of law, we

are required by R.C. 2929.05(A) to independently review Graham’s death sentence

for appropriateness. In conducting this review, we must determine whether the

evidence supports the jury’s finding of aggravating circumstances, whether the

aggravating circumstances outweigh the mitigating factors, and whether death is

the appropriate sentence. R.C. 2929.05(A); see State v. Johnson, 144 Ohio St.3d

518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 99.

A. Aggravating circumstances

{¶ 191} Graham was convicted of murdering Massa while committing

aggravated robbery, R.C. 2929.04(A)(7), while committing aggravated burglary,

R.C. 2929.04(A)(7), and while committing kidnapping, R.C. 2929.04(A)(7). The

evidence at trial supports the jury’s findings of guilt as to the three aggravating

circumstances.

B. Mitigating factors

{¶ 192} Against these aggravating circumstances, we must weigh any of the

relevant mitigating factors provided in R.C. 2929.04(B). These factors include

 the nature and circumstances of the offense, R.C. 2929.04(B),

 the history, character, and background of the offender, R.C. 2929.04(B),

 whether the victim of the offense induced or facilitated it, R.C.

2929.04(B)(1),

 whether it is unlikely that the offense would have been committed but for the

fact that the offender was under duress, coercion, or strong provocation, R.C.

2929.04(B)(2),

 whether, at the time of committing the offense, the offender, because of a

mental disease or defect, lacked substantial capacity to appreciate the

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criminality of the offender’s conduct or to conform the offender’s conduct to

the requirements of the law, R.C. 2929.04(B)(3),

 the youth of the offender, R.C. 2929.04(B)(4),

 the offender’s lack of a significant history of prior criminal convictions and

delinquency adjudications, R.C. 2929.04(B)(5),

 if the offender was a participant in the offense but not the principal offender,

the degree of the offender’s participation in the offense and the degree of the

offender’s participation in the acts that led to the death of the victim, R.C.

2929.04(B)(6),

 and any other factors that are relevant to the issue whether the offender

should be sentenced to death, R.C. 2929.04(B)(7).

1. Graham’s background

{¶ 193} Graham was the second child born to his mother, and she had him

when she was 19 years old. He had very little contact with his father, who was

often in and out of prison. Graham did not have a consistent home environment, as

he lived off and on with his maternal grandmother throughout his childhood.

{¶ 194} Graham was also exposed to domestic violence in his home life.

Graham’s mother raised Graham the way that she was raised and disciplined him

with a belt. According to Dr. Swales, the psychologist hired by the defense, in the

year before the murder, Graham’s grandmother was convicted of domestic violence

for a confrontation she had with Graham’s mother and his sister. Even though

Graham was not the victim of that instance of violence, as Dr. Swales said, it is an

example of “the adverse childhood experiences that [Graham] was experiencing

during his childhood.”

{¶ 195} Further, although Graham lived in well-kept homes with his mother

and grandmother, the homes were located in neighborhoods in which there was

substantial drug activity. Dr. Swales stated: “[Graham] got involved in the wrong

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crowd. He was one of those adolescents who got socialized into aggression because

that’s what his friends were doing, all kinds of ridiculous things that no rational

person, no person in their right mind would do.”

2. Mental-health and substance-abuse issues

{¶ 196} In addition to the adverse environmental factors, the evidence in

the record shows that Graham suffered from both mental-health issues and

substance-use disorder. Graham was diagnosed with two mental-health issues:

oppositional defiant disorder and conduct disorder. See Cavanagh, Quinn, Duncan,

Graham & Balbuena, Oppositional Defiant Disorder Is Better Conceptualized as a

Disorder of Emotional Regulation, Journal of Attention Disorders, 21(5), 381-389

(2017), abstract available at https://doi.org/10.1177/1087054713520221 (accessed

Oct. 8, 2020) [https://perma.cc/K7AP-MAUL] (oppositional defiant disorder is

better classified as a disorder of emotion regulation rather than as behavior

disorder); Noordermeer, Luman & Oosterlaan, A Systematic Review and Meta-

analysis of Neuroimaging in Oppositional Defiant Disorder (ODD) and Conduct

Disorder (CD) Taking Attention-Deficit Hyperactivity Disorder (ADHD) Into

Account, Neuropsychology Review, 26(1), 44–72 (2016), available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4762933/ (accessed Oct. 8, 2020)

[https://perma.cc/JW2U-SFRR] (oppositional defiant disorder and conduct

disorder are the most commonly diagnosed mental-health conditions in childhood).

Despite these mental-health issues and despite the fact that Graham clearly had

problems stemming from these issues, Graham did not receive treatment. Dr.

Swales testified that testing confirmed that Graham was not faking his mental-

health issues.

{¶ 197} Graham’s substance-abuse problems further contributed to his

behavioral issues. Graham was marijuana dependent. He first used marijuana

when he was in seventh grade, and he began using it on a daily basis as a teenager.

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Despite his pediatrician’s knowledge of his usage, Graham was not referred for

treatment.

{¶ 198} It was only after intervention from the juvenile court that Graham

received some treatment for substance-use disorder related to his marijuana usage.

However, Dr. Swales testified that Graham received inadequate treatment for his

issues. Graham attended seven counseling sessions, and the counselor

recommended additional counseling and anger management. Graham’s mother did

not participate in these sessions, and she discontinued the sessions because she did

not feel they were necessary.

{¶ 199} Graham’s substance-abuse problems escalated when he became

addicted to Xanax and used it in combination with Adderall occasionally. Dr.

Swales testified that Graham was “using massive amounts of Xanax on a daily basis

at the time of this instant offense.” Graham admitted to Dr. Swales that “he would

use a high amount, one to one-and-a-half bars of Xanax per day.” Dr. Swales

testified that taking such a dosage every day would result in aggression, irritability,

sleep difficulties, and tremors. Graham told Dr. Swales that while on Xanax, he

was more aggressive and got into unprovoked fights with his friends. Dr. Swales

testified: “In my opinion, it’s unlikely that [Graham] would’ve committed the

offense of murder, but for the fact he was addicted to Xanax, a benzodiazepine. I

believe that the Xanax led to the disinhibited behavior and the aggression.”

3. Age

{¶ 200} Graham had only recently turned 19 years old when he committed

these crimes with three 17-year-olds. Dr. Swales mentioned Graham’s youth as a

mitigating factor, stating that at 19 years old, Graham “didn’t demonstrate a

maturity of an adult in any of the decisions that he made.”

4. Adjustment to prison life

{¶ 201} Graham succeeded when he had structure and was sober. Graham

received As and Bs in elementary school. He started having behavioral problems

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in middle school and his grades worsened (his GPA fell to 1.0), he was truant, and

he ran away from home, all while using marijuana on a daily basis. Graham’s

grades ranged from Bs to Fs in the 9th and 10th grades. He repeated the 10th grade.

Graham was sent to the Multi-County Juvenile Attention System, a program for

delinquent youth, and was almost a straight-A student when he finished. But he

did not attend school beyond the 11th grade.

{¶ 202} Additionally, during the ten months that Graham was in custody at

the Portage County jail awaiting trial in this case, he committed no major violations.

Accordingly, Dr. Swales testified that he believes that Graham would adjust well

to prison.

5. Unsworn statement

{¶ 203} Graham, in an unsworn statement, expressed sympathy and

requested an opportunity to learn from his mistakes. He said, “I would like to say

my heart goes out to the victim’s family. Um, I know they probably can’t forgive

this, but mistakes do happen and people do learn from mistakes and I just hope the

jury will understand that and give me a chance to learn.”

C. Weighing

{¶ 204} We must determine whether the felony-murder aggravating

circumstances that were found by the jury outweigh the mitigating factors presented

in this case beyond a reasonable doubt. R.C. 2929.05(A) and 2929.03(D)(1); see

Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 140. We

determine that they do not.

{¶ 205} The following mitigating factors enumerated in R.C. 2929.04(B)

do not contribute any mitigating weight: the nature and the circumstances of the

offense, R.C. 2929.04(B); inducement by the victim, R.C. 2929.04(B)(1); offender

under duress, coercion, or strong provocation, R.C. 2929.04(B)(2); offender lacked

substantial capacity due to mental disease or defect, R.C. 2929.04(B)(3); offender’s

lack of significant criminal history, R.C. 2929.04(B)(5); and offender was not the

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principal offender, R.C. 2929.04(B)(6). Massa’s tragic and senseless death was a

result of a poorly thought out and horrifically executed robbery of a drug dealer by

a group of teenagers. It is true that Graham was not the mastermind—it was

Kremling, his 17-year-old friend who recruited him and the other teenagers, Grier

and Planicka, to participate in the robbery of Kremling’s former classmate and

drug-dealing acquaintance, Haithcock. But it was Graham, according to his

codefendants, who led the charge into the apartment, demanded and collected

money from Haithcock, ordered two of the victims, Massa included, to wait on the

couch, and then shot Massa when his authority was challenged.

{¶ 206} Nevertheless, there is strong and compelling mitigating evidence

regarding Graham’s history and background and other mitigating factors

enumerated in R.C. 2929.04(B)—youth of the offender (R.C. 2929.04(B)(4)) and

the catchall provision (R.C. 2929.04(B)(7))—that have significant weight.

{¶ 207} This court must consider Graham’s youth as a mitigating factor

pursuant to R.C. 2929.04(B)(4). We acknowledge that this court has not always

considered the youth of the offender to be a strong factor, and it has occasionally

given it nominal weight. See State v. Goodwin, 84 Ohio St.3d 331, 350, 703 N.E.2d

1251 (1999) (offender’s age of 19 entitled to “nominal weight”), writ of habeas

corpus granted in part on other grounds sub nom. Goodwin v. Johnson, N.D.Ohio

No. 1:99CV2963, 2006 WL 753111 (Mar. 22, 2006); Noling, 98 Ohio St.3d 44,

2002-Ohio-7044, 781 N.E.2d 88, at ¶ 149 (“We do not * * * necessarily regard age

as a strong or compelling mitigating factor”). However, there is more recent case

law in which this court has given youth somewhat more weight in this analysis. See

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 203 (the

defendant’s youth provided “some weight” in mitigation; the defendant was only a

few months over 18 at the time of the offenses); Lang, 129 Ohio St.3d 512, 2011-

Ohio-4215, 954 N.E.2d 596, at ¶ 337 (the defendant’s youth provided significant

mitigating weight; the defendant turned 19 a few days before committing the

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offenses ); Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 252

(the defendant’s youth provided significant mitigating weight; the defendant was

19 at the time of the offenses). Therefore, we consider Graham’s youth—he turned

19 the month before he committed the offenses with three teenagers—to be a factor

that carries significant weight.

{¶ 208} We also find that Graham’s background is entitled to some weight.

Evidence presented at trial demonstrated that Graham had a troubled upbringing.

He grew up in a dysfunctional family in an unstable home environment, where he

observed combative and violent behavior by his immediate family members and

was the recipient of corporal punishment at the hand of his mother. We have

“seldom given decisive weight” to this factor, Hale, 119 Ohio St.3d 118, 2008-

Ohio-3426, 892 N.E.2d 864, at ¶ 265, but the mitigating evidence presented in this

case demonstrates that Graham’s history and background are entitled to some

weight. See State v. Bey, 85 Ohio St.3d 487, 508, 709 N.E.2d 484 (1999) (history

and background including unstable and abusive home environment entitled to some

weight in mitigation); Hale at ¶ 265 (history and background including one unstable

and irresponsible parent and an unstable home environment entitled to some weight

in mitigation).

{¶ 209} Graham also has a history of mental-health issues. He has been

diagnosed with oppositional defiant disorder and conduct disorder. While these

disorders do not qualify as mitigating under R.C. 2929.04(B)(3), see State v.

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 298, they are

serious disorders experienced by some children and adolescents, and Graham did

not receive adequate treatment for them. Thus, we give some weight to Graham’s

mental-health problems under R.C. 2929.04(B)(7). See Clinton, 153 Ohio St.3d

422, 2017-Ohio-9423, 108 N.E.3d 1, at ¶ 296.

{¶ 210} To make matters worse, Graham was dependent on marijuana and

never received adequate treatment for this dependency—neither his pediatrician

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nor his mother sought treatment for his marijuana use. It was not until the juvenile

court intervened that Graham received some treatment, but that treatment was

minimal, and it was deemed inadequate by the psychologist hired by the defense.

Even assuming arguendo that his brief treatment regimen was adequate by medical

standards, Graham’s substance-abuse issues only escalated throughout his teen

years, with Graham becoming addicted to Xanax and occasionally using Adderall.

It was this addiction to Xanax that caused Graham to become less inhibited and

more aggressive. Thus, we give Graham’s substance-abuse issues some weight in

mitigation. See State v. Tibbetts, 92 Ohio St.3d 146, 174, 749 N.E.2d 226 (2001)

(“we have accorded some weight to drug addiction in mitigation”).

{¶ 211} From Dr. Swales’s testimony outlining Graham’s mental-health

and substance-abuse issues and his educational successes and failures, we can see

that Graham does well when he is in a stable and structured environment and is not

on drugs. He succeeded academically when placed in a structured environment by

the juvenile court, and he did not commit any major infractions while in jail

awaiting trial. Further, Dr. Swales’s opined that Graham would adapt well to prison

life. Therefore, we give some weight as a mitigating factor under R.C.

2929.04(B)(7) to Graham’s ability to adapt to life in prison. See State v. Foust, 105

Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 200.

{¶ 212} Finally, Graham’s expression of sympathy toward Massa’s family

is also entitled to some weight. See Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562,

114 N.E.3d 1092, at ¶ 244.

{¶ 213} There is no doubt that Graham’s murder of Massa was a senseless,

horrific, and appalling act. But considering the aggravating circumstances and

weighing them against the mitigating factors in this case, we do not find that the

aggravating circumstances outweigh the mitigating factors beyond a reasonable

doubt. Viewing the mitigating factors cumulatively, “the mitigation evidence

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militates against imposing the death sentence,” see Johnson, 144 Ohio St.3d 518,

2015-Ohio-4903, 45 N.E.3d 208, at ¶ 139.

{¶ 214} We recognize that we have upheld death sentences in other cases

in which the offender was 19 or younger, had mental-health and substance-abuse

issues, and had an unstable home life, see, e.g., State v. Raglin, 83 Ohio St.3d 253,

699 N.E.2d 482 (1998), and State v. Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151

(1998). But those cases are distinguishable given developments in the case law on

the weight to be given to the mitigating factors of youth and mental-health issues.

And we must independently examine each case on its own unique facts.

{¶ 215} Our conclusion is supported by our decision in Johnson, a case in

which this court vacated the defendant’s death sentence based on the cumulative

weight of the mitigating factors. Like Graham, Johnson entered a residence to

commit robbery and murdered a person inside. But Johnson was also similar to

Graham in that he was 19 at the time of the murder, he had had a troubled childhood,

suffered from mental-health issues, and was dependent on drugs, including

marijuana. We found in that case that the aggravating circumstances did not

outweigh the cumulative effect of the mitigating evidence beyond a reasonable

doubt, based upon the specific facts of that case. And we find similarly today.

{¶ 216} Thus, based upon an independent review of the evidence, we cannot

conclude that the aggravating circumstances that Graham was found guilty of

committing outweigh the mitigating factors present in the case beyond a reasonable

doubt. R.C. 2929.05(A). Therefore, a sentence of death is not appropriate in this

case.

VI. CONCLUSION

{¶ 217} We affirm Graham’s convictions. We vacate his death sentence

and remand the cause to the trial court for resentencing consistent with R.C.

2929.06.

Judgment of convictions affirmed,

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death sentence vacated,

and cause remanded.

O’CONNOR, C.J., and FRENCH, J., concur.

DONNELLY, J., concurs, with an opinion.

STEWART, J., concurs in judgment only.

KENNEDY, J., concurs in judgment only in part and dissents in part, with an

opinion joined (except for paragraphs 246-257 and 263) by DEWINE, J.

_________________

DONNELLY, J., concurring.

{¶ 218} Respectfully, I concur in the court’s judgment affirming the

convictions entered against appellant, Damantae Graham, vacating his death

sentence, and remanding the cause for a resentencing hearing in accordance with

R.C. 2929.06(A). I agree with the majority’s determination pursuant to its

independent sentence evaluation that a sentence of death is not appropriate in light

of the unique aggravating and mitigating factors in this case. But I would fully

address Graham’s argument on the proper scope of proportionality review. I

believe that a sentence of death is disproportionate and excessive in this case and

that Graham’s death sentence would need to be vacated irrespective of the court’s

conclusion that the aggravating circumstances that Graham was found guilty of

committing did not outweigh the mitigating factors beyond a reasonable doubt.

{¶ 219} I recognize that my position is outside the norm, since this court

has never once in the entire history of proportionality review reversed a death

sentence on the ground that it was “excessive or disproportionate to the penalty

imposed in similar cases,” R.C. 2929.05(A). The norm is wrong. Proportionality

review in Ohio is woefully superficial and perfunctory, and it fails both to comply

with the plain language of R.C. 2929.05(A) and to ensure basic constitutional

protections.

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{¶ 220} Although states are not constitutionally required to enact

proportionality-review laws, Pulley v. Harris, 465 U.S. 37, 43-44, 104 S.Ct. 871,

79 L.Ed.2d 29 (1984), Ohio has had such a law in place since 1981, R.C. 2929.05,

Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 17-18 (effective Oct. 19, 1981). But

when this court applies the proportionality provision of R.C. 2929.05(A), it does

not actually provide meaningful review of the issue so as to prevent the arbitrary,

capricious, and disproportionate imposition of the death penalty, which is

constitutionally required, Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49

L.Ed.2d 859 (1976) (lead opinion), citing Furman v. Georgia, 408 U.S. 238, 310,

92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring); see also Pulley at 54

(Stevens, J., concurring in part and concurring in the judgment). In other words,

the form is not constitutionally required, but the substance is. And in Ohio we have

it backwards: we have the form but lack the substance.

{¶ 221} If Ohio had an adequately narrow pool of offenses that were

eligible for the death penalty, then a statutorily mandated check on the

proportionality of the sentence might not be necessary. See Zant v. Stephens, 462

U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (“an aggravating

circumstance must genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a more severe sentence on

the defendant compared to others found guilty of murder”). An adequately

narrowed classification of capital aggravated murder alone might ensure that

“sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed.” Jurek v. Texas,

428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), quoting Furman at 310

(Stewart, J., concurring). But Ohio’s classification scheme is not adequately

narrow, and our pool of death-eligible offenses is enormous. Any murder that

occurs in conjunction with a felony such as robbery is eligible.1 Felony murder is

1. R.C. 2903.01 provides:

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particularly problematic under Ohio’s statutory scheme because the felony is the

element that elevates the murder offense to aggravated murder, R.C. 2903.01(B),

and the felony is also the element that elevates the maximum penalty for aggravated

murder from life imprisonment to death, R.C. 2929.04(A)(7); R.C. 2929.02. A

cold-blooded murderer who acted with prior calculation and design and committed

the murder in a particularly brutal manner is not eligible for the death penalty unless

an additional aggravating factor under R.C. 2929.04(A) can be proved. But every

single robbery-murder is eligible for the death penalty without the need to prove

any additional factor.

{¶ 222} Given the extreme breadth of the death-eligible category of

offenses in Ohio—particularly felony murder—our proportionality review is all the

more important in order to ensure that the death penalty is not imposed

“capriciously or in a freakish manner,” Gregg at 195 (lead opinion). This court’s

practice, though, is to dispose of the proportionality issue with a single sentence,

indicating that the death penalty has been imposed at some point in history in a

capital case involving the same aggravating factor or factors. See, e.g., State v.

Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 116; State v. Jones,

135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 266; State v. Frazier, 115

Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 270; State v. Hoffner, 102

Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 121; State v. Thomas, 97 Ohio

St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 124; State v. Bays, 87 Ohio St.3d

15, 34, 716 N.E.2d 1126 (1999). This approach is overly narrow, and its result is

overbroad.

(B) No person shall purposely cause the death of another * * * [in

conjunction with] kidnapping, rape, aggravated arson, arson, aggravated

robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a

person is present or likely to be present, terrorism, or escape.

***

(G) Whoever violates this section is guilty of aggravated murder * * *.

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{¶ 223} The court’s approach is overly narrow because it compares the case

at hand solely to other cases in which the death penalty was imposed, and the cases

cited as being similar are often not factually comparable. I agree with the statement

of United States Supreme Court Justice Stevens that consideration of similarly

situated defendants who have not been sentenced to death “is an essential part of

any meaningful proportionality review,” Walker v. Georgia, 555 U.S. 979, 980, 129

S.Ct. 453, 172 L.Ed.2d 344 (2008) (Stevens, J., statement respecting the denial of

certiorari). Moreover, the plain language of R.C. 2929.05 obligates this court to

compare more than just cases in which the death penalty was imposed.

{¶ 224} Our obligation to consider similarly situated defendants receiving

varying penalties is clear from the words that the General Assembly chose to use

in the proportionality provision of R.C. 2929.05. When “determining whether the

sentence of death is appropriate,” we are required to “consider whether the sentence

is excessive or disproportionate to the penalty imposed in similar cases.”

(Emphasis added.) R.C. 2929.05(A). There are two distinct words for punishment

in this sentence—“sentence” and “penalty.” First, it refers to “the sentence of

death” and then “the sentence” as shorthand for “sentence of death.” Second, it

refers to “the penalty” in similar cases. If the General Assembly had intended to

limit the comparison solely to death sentences, it would have used “sentence” or

“death sentence” for the second term. But the General Assembly did not do that.

It used the more expansive term “penalty.” The phrasing of R.C. 2929.05

commands this court to compare the different penalties imposed in similar cases; it

plainly does not instruct us to compare the different circumstances underlying

identical death sentences.

{¶ 225} The result of this court’s typical proportionality “review” is

overbroad because its one-sentence analysis is no more than a confirmation that the

murder offense in the case fits within the expansive category of death-eligible

offenses. The “analysis” does nothing to narrow that category and therefore does

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nothing to “justify the imposition of a more severe sentence on the defendant

compared to others found guilty of murder,” Zant, 462 U.S. at 877, 103 S.Ct. 2733,

77 L.Ed.2d 235. The fact that this court does not perform effective proportionality

reviews does not mean that every case upholding a death sentence permits a

disproportionate sentence to be carried out, but it does mean that the court does not

identify the sentences that are so disproportionate that they violate fundamental

constitutional principles.

{¶ 226} I believe that the appropriate course is for this court to depart from

the charade of proportionality review described above. Justifying such a departure

is not particularly complicated, since this court’s decisions that set the tone for

proportionality review provided remarkably little analysis in support. State v.

Jenkins, 15 Ohio St.3d 164, 209, 473 N.E.2d 264 (1984); State v. Steffen, 31 Ohio

St.3d 111, 123, 509 N.E.2d 383 (1987).

{¶ 227} In Jenkins this court baldly stated, with no analysis whatsoever, that

R.C. 2929.05 does not require the court to include noncapital murder cases in its

death-penalty proportionality review. Id. at 209. It noted, though, that R.C.

2929.021, which directs clerks of trial courts to notify this court of all capitally

charged cases filed in their courts regardless of the outcome, is an important tool

for proportionality review. Id. at 208-209.

{¶ 228} This court in Steffen did not go much further than Jenkins in its

analysis to justify its refusal to provide meaningful proportionality review and

instead leaned heavily on the unfounded notion that “logic dictates” the result.

Steffen at 123. The only specific justification it provided for so limiting the pool of

cases for comparison was that “[c]omparison with cases not passed upon by the

reviewing court would be unrealistic since the reviewing court could not possess

the requisite familiarity with the particular circumstances of such cases so essential

to a determination of appropriateness,” id. This reasoning appears to be at odds

with the language in Jenkins indicating that all capitally charged cases, regardless

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of the outcome, should be used for comparison, id. at 208-209. Moreover, if this

court had actually followed Steffen in the last 33 years, one would expect to see at

least one example of this court’s overturning the death sentence in a case after a

thorough comparison of the circumstances of the case with the particular

circumstances of cases that this court had previously reviewed. But there is no such

example. We have spent decades debunking the notion that “a court cannot make

a meaningful proportionality review unless the pool of cases is restricted to those

which the reviewing court has itself decided,” id. at 123, by refusing to provide

meaningful proportionality review with the pool of cases that this court itself has

decided.

{¶ 229} While the doctrine of stare decisis is certainly “of fundamental

importance to the rule of law,” Wampler v. Higgins, 93 Ohio St.3d 111, 120, 752

N.E.2d 962 (2001), the doctrine “should not be, and has never been, used as the

sole reason for the perpetuation of a stated rule of law which has proved to be

unsound and unjust.” Carter-Jones Lumber Co. v. Eblen, 167 Ohio St. 189, 196-

197, 147 N.E.2d 486 (1958). The holding announced in Jenkins and Steffen works

an unjust result, and this court’s reliance on the cases over the decades has done

nothing to strengthen their logic. This court has not considered the rationale (or

lack thereof) of the holding but has instead parroted it over and over through the

decades. Our rejections of arguments in favor of an appropriate proportionality

review have been as terse and meaningless as the proportionality review itself. See,

e.g., State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 249;

State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 183;

State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 151.

Because this court’s precedent regarding proportionality review offers not justice

but unfairness, departure from the precedent is justified. See Clark v. Southview

Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (1994).

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Moreover, it would work no hardship on this court to simply stop emptily invoking

it.

{¶ 230} In cases, like this one, that involve black defendants and white

victims, it is “abundantly clear that there is a special risk of arbitrariness” in the

prosecution of capital offenses. Walker, 555 U.S. at 980, 129 S.Ct. 453, 172

L.Ed.2d 344 (Stevens, J., statement respecting the denial of certiorari). In Ohio, as

elsewhere, black defendants with white victims are far more likely to receive the

death penalty than all other defendants facing capital charges. See Grosso, O’Brien

& Roberts, Local History, Practice, and Statistics: A Study on the Influence of Race

on the Administration of Capital Punishment in Hamilton County, Ohio (January

1992-August 2017), 51 Colum.Hum.Rts.L.Rev. 902, 931-932 (2020) (in cases in

which the state seeks a death sentence, a black defendant in a case with at least one

white victim is 5.33 times more likely to receive a death sentence). I believe we

are statutorily and constitutionally required to undertake a more expansive

proportionality review in cases such as this one that carry a special risk of

arbitrariness.

{¶ 231} In this case, Graham fatally shot Nicholas Massa while Graham

was helping his friend rob the friend’s drug dealer. A criminal case involving a

fatal shooting during a robbery is not uncommon. It is a sad reality, but it is a reality

nonetheless. Even a cursory review of the most recent appeals involving a fatal

shooting during the course of a robbery shows that the death penalty is not usually

sought, let alone imposed, for this type of crime. See State v. Cannon, 9th Dist.

Lorain No. 19CA011536, 2020-Ohio-3765; State v. Rogenski, 7th Dist.

Columbiana No. 18 CO 0019, 2020-Ohio-1360; State v. Smith, 1st Dist. Hamilton

No. C-180227, 2020-Ohio-649; State v. Ocasio, 5th Dist. Licking No. 2019 CA

00013, 2019-Ohio-5396; State v. Mondie, 8th Dist. Cuyahoga No. 108030, 2019-

Ohio-5337; State v. Johnston, 10th Dist. Franklin No. 18AP-817, 2019-Ohio-5135;

State v. Hodge, 10th Dist. Franklin No. 18AP-95, 2019-Ohio-4012; State v. Hale,

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8th Dist. Cuyahoga No. 107646, 2019-Ohio-3276; State v. Riggins, 1st Dist.

Hamilton No. C-180069, 2019-Ohio-3254; State v. Howell, 8th Dist. Cuyahoga No.

107545, 2019-Ohio-3182; State v. Walker, 2d Dist. Montgomery No. 28111, 2019-

Ohio-3121; State v. Johnson, 8th Dist. Cuyahoga No. 107427, 2019-Ohio-2913;

State v. Snowden, 2d Dist. Montgomery No. 27948, 2019-Ohio-2840; State v.

Brown, 7th Dist. Columbiana No. 18 CO 0025, 2019-Ohio-2717; State v. Burke,

11th Dist. Trumbull Nos. 2018-T-0032 and 2018-T-0035, 2019-Ohio-1951.

{¶ 232} If “the infliction of a severe punishment is ‘something different

from that which is generally done’ in such cases * * *, there is a substantial

likelihood that the State, contrary to the requirements of regularity and fairness

embodied in the [Cruel and Unusual Punishments] Clause, is inflicting the

punishment arbitrarily.” Furman, 408 U.S. at 276-277, 92 S.Ct. 2726, 33 L.Ed.2d

346 (Brennan, J., concurring), quoting Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct.

590, 2 L.Ed.2d 630 (1958), fn. 32. To impose capital punishment here, in light of

the cases listed in the prior paragraph, would be arbitrary. Simply put, this should

not be a death-penalty case.

{¶ 233} I want to emphasize that I have no pity for Graham, and I do not

wish to downplay the unspeakable tragedy that befell Nicholas Massa and all those

who loved him. A murder is an extreme and despicable act. It may end only one

life but it ruins many others. An act of murder should not be taken lightly, and it

deserves severe punishment. But the inquiry in a death-penalty proportionality

review is not whether the murderer in the case should be punished but is instead

whether the murder—among all other murders, which are also despicable and leave

endless heartbreak in their wakes—is a murder for which the death penalty is

appropriate. The death penalty must be reserved for only the worst among murder

offenses. See Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d

1 (2005); Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 153 L.Ed.2d 335

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(2002). The murder in this case was cold, heartless, and senseless, but it is not the

kind of murder offense for which the death penalty is appropriate.

{¶ 234} Accordingly, I would find merit in Graham’s assertion that a

proportionality review should include an evaluation of the sentence “in relation to

[the sentences imposed for] other heinous crimes.” Because the death penalty in

this case would be disproportionate to the penalty found in similar cases, the death

penalty should not have been imposed and I would vacate Graham’s death sentence

on this additional ground.

_________________

KENNEDY, J., concurring in judgment only in part and dissenting in

part.

{¶ 235} I concur in the majority’s affirmance of appellant Damantae

Graham’s convictions. I write separately, however, to address the advisory opinion

the majority issues purporting to resolve Graham’s proposition of law No. VI. And

I dissent from the majority’s vacation of the death sentence. Contrary to the

majority’s determination, based on our precedent, the aggravating circumstances of

aggravated robbery, aggravated burglary, and kidnapping do outweigh the

mitigating factors in this case. And contrary to the concurrence’s determination, a

sentence of death in this case is proportionate to the penalty imposed in other

aggravated-murder cases with the same aggravating circumstances. Therefore, I

concur in the judgment in part and dissent in part.

{¶ 236} An 18-year-old victim, Nick Massa, died at the hands of a 19-year-

old armed robber, Damantae Graham. Nick did not provoke Graham, did not

attempt to flee, and did not incite the escalation of violence. Nick and the other

victims of the armed robbery were compliant with the demands of the armed

robbers, but Graham nevertheless cold-bloodedly killed Nick.

{¶ 237} Three robbers stormed into the apartment in which Nick was

visiting with his friends. Two of the robbers were armed with .380-caliber High

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Point semiautomatic handguns, and they had their guns drawn. The armed robbers

ordered Nick to sit on the couch with his hands in the air, and Nick complied. The

resident of the apartment gave t

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