State v. McAlpin

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

v. McAlpin, Slip Opinion No. 2022-Ohio-1567.]

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. 2022-OHIO-1567

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

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

may be cited as State v. McAlpin, Slip Opinion No. 2022-Ohio-1567.]

Criminal law—Aggravated murder—Death penalty—Aggravating circumstances

outweigh mitigating factors—Convictions and death sentence affirmed.

(No. 2019-0926—Submitted June 15, 2021—Decided May 12, 2022.)

APPEAL from the Court of Common Pleas of Cuyahoga County,

No. CR-17-623243.

_________________

STEWART, J.

{¶ 1} Appellant, Joseph McAlpin, was charged with kidnapping, robbing,

and murdering Michael Kuznik and Trina Tomola at their used-car business in

Cleveland in 2017. At his trial by jury, McAlpin waived his right to counsel and

represented himself. McAlpin was found guilty of all charged offenses, including

two counts of aggravated murder with four death-penalty specifications attached to

each count. Following the jury’s recommendation, the trial court sentenced

McAlpin to death.

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{¶ 2} We now review McAlpin’s direct appeal of right. For the following

reasons, we affirm his convictions and sentence of death.

I. TRIAL EVIDENCE

A. The robbery of Mr. Cars

{¶ 3} Andrew Keener testified at McAlpin’s trial that on April 14, 2017,

McAlpin and McAlpin’s brother Jerome Diggs met him on the east side of

Cleveland. McAlpin and Diggs spoke for about 30 minutes in McAlpin’s car, and

then Diggs asked Keener whether he wanted to make some money. Diggs said that

he and McAlpin planned to “hit this spot for titles and car keys” and then sell the

cars. He promised Keener money and drugs if Keener would drive a stolen vehicle

off the lot. Keener agreed and got into McAlpin’s car. Keener thought that this

was around 4:00 or 5:00 p.m.

{¶ 4} Keener testified that McAlpin drove to a side street near Mr. Cars and

parked. McAlpin appeared to be wearing multiple layers of clothing, including red

jogging pants, a black hooded sweatshirt, and brown boots. When McAlpin got out

of the car, his sweatshirt was lifted up a little bit and Keener saw the butt of a gun

near his hip. McAlpin pulled his sweatshirt back down, hiding the gun.

{¶ 5} Keener testified that after McAlpin left on foot and had been gone for

about 20 minutes, Diggs used Keener’s cell phone to call McAlpin and asked what

was taking so long. About five minutes later, Diggs called McAlpin again.

McAlpin eventually called Keener and told him that “the car’s on and ready.”

Keener entered the Mr. Cars lot and saw McAlpin, who was wearing different

clothes than the ones he had been wearing earlier in the evening. McAlpin was also

wearing a baseball cap, pulled down low to hide his eyes.

{¶ 6} Keener got into a 2006 Mercedes 430 and moved it. Keener drove the

car off the lot and down a side street, where Diggs was waiting. Keener then moved

to the passenger seat, and Diggs drove the car. They followed McAlpin, who was

driving a 2008 BMW 528i, to a parking lot on the west side of Cleveland. Keener

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and Diggs left the Mercedes in that lot and got into the BMW with McAlpin.

Keener noticed that McAlpin was holding a stack of banking and credit cards.

{¶ 7} McAlpin drove the BMW to another spot on the west side and parked.

A woman picked up McAlpin and Diggs and left. Keener contacted his girlfriend,

who picked him up.

{¶ 8} According to Keener, several days passed before he found out that

people had been murdered during the robbery. He had called McAlpin’s phone

multiple times because he had not been paid. Eventually he spoke to Diggs, who

told Keener that they had not yet sold the cars. Keener was never paid.

{¶ 9} In exchange for testifying against McAlpin, the state offered Keener

a plea deal. Keener pleaded guilty to involuntary manslaughter with two firearm

specifications that would merge for the purposes of sentencing and one count of

grand theft. He was sentenced to an aggregate six-year prison term.

B. The discovery of Michael’s and Trina’s bodies

{¶ 10} In April 2017, Michael and Trina lived around the corner from Mr.

Cars. Three children lived in the home with them at the time of the murders—19-

year-old son Colin Zaczkowski, a 13-year-old daughter, and a 6-year-old son.

{¶ 11} Around 9:00 or 9:30 p.m. on April 14, 2017, Trina and Michael’s

daughter told Zaczkowski that she was concerned that their parents were not home

yet. Zaczkowski drove to Mr. Cars and noticed multiple things that were not as

they should be. For instance, Michael and Trina’s car was still parked in front of

the building. Zaczkowski also noticed that the “blockers,” cars that they typically

parked in front of the car lot’s gate to deter theft, were not in place. Also, the lights

inside the dealership were off, but the showroom door was propped open.

{¶ 12} Zaczkowski entered the building and found who he thought was his

mother—in fact, it was Michael—dead in a pool of blood. He immediately left the

building and called 9-1-1.

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{¶ 13} Cleveland police detectives Alexander Gumucio and Kevin

Warnock responded. Detective Warnock interviewed Zaczkowski, and Detective

Gumucio, who was wearing a body camera, did a walkthrough of the building. The

state played excerpts from Gumucio’s body-camera video for the jury.

{¶ 14} The first excerpt showed a dead man lying face down behind a desk,

just beyond the front entrance. Next in the video, Detective Gumucio walked

around the showroom and into a back hallway, where he saw a dead dog. The back

hallway led to an office where Gumucio saw a dead woman. The bodies were

identified as Michael and Trina and their dog, Axel.

C. The police investigation

{¶ 15} Zaczkowski told Detective Arthur Echols that at least three cars were

missing from Mr. Cars: a BMW, a Mercedes, and a Chevrolet Tahoe. Echols later

learned that the Tahoe had been sold on April 13.

{¶ 16} Zaczkowski testified that Michael always carried cash on him.

Testimony established that two customers had purchased cars from Mr. Cars on

April 14, 2017. They made cash payments totaling at least $7,500. Michael’s

wallet was stolen and there was no other cash found at Mr. Cars.

{¶ 17} The security system at Mr. Cars was stolen, and key components of

the system, including the digital video recorder, were gone. However, investigators

were able to get security footage of the Mr. Cars lot from a business across the

street. Investigator Tom Ciula testified that the camera was too far away to identify

faces but that magnification made it possible to see what was going on during the

relevant period. Detective Echols also recovered surveillance footage from a

wireless-phone store located one block north of Mr. Cars. Based on the other

businesses’ surveillance footage, investigators confirmed that at least two

individuals were involved in the crimes.

{¶ 18} Detective Echols received an anonymous tip in April indicating that

Diggs and “Joshua McAlpin, or McAlpine” were involved in the crimes at Mr.

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Cars. On April 20, patrol officers recovered the stolen BMW at 3310 West 48th

Street. The stolen Mercedes was recovered from a banquet-center parking lot in a

southwestern Cleveland suburb.

{¶ 19} On June 8, 2017, the Cuyahoga County Regional Forensic Science

Laboratory notified Detective Echols that DNA matching McAlpin’s DNA profile

was found on a modem collected from the back office of Mr. Cars and on swabs

collected from inside the back pocket of Michael Kuznik’s jeans and inside the

stolen BMW.

{¶ 20} McAlpin was arrested on June 13, 2017. Detective Echols read

McAlpin his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966). McAlpin waived his right to counsel and denied all

involvement in the crimes.

D. Medical examiner’s testimony

{¶ 21} Dr. Erica Armstrong, the deputy medical examiner and a forensic

pathologist for the Cuyahoga County Medical Examiner’s Office, conducted the

autopsies of Michael and Trina. She also examined Axel, the dog found dead at

the scene.

{¶ 22} Michael had been shot in the middle of his forehead and in his left

cheek. The bullet in his forehead traveled from front to back, right to left, and

downward, exiting through Michael’s left ear. Dr. Armstrong noted stippling

around the entrance wound; the amount of stippling indicated that the gun muzzle

was approximately two and one-half to three feet from Michael’s head. No

stippling was present around the entrance wound on Michael’s cheek, but Dr.

Armstrong noted “a little bit” of black discoloration around the edge of the wound.

She testified that this looked like fouling, which would indicate that the gun muzzle

was at close range, potentially inches away from Michael’s face when the gun was

fired. Dr. Armstrong concluded that the cause of death was “gunshot wounds of

head, with skull and brain injuries.”

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{¶ 23} Trina also died from a gunshot to the head that caused skeletal, brain,

and spinal-cord injuries. The bullet entered the back of Trina’s head on the left

side. Dr. Armstrong testified that although part of the bullet had lodged in Trina’s

skull, part of it had broken off, exited her scalp, and lodged in her right shoulder.

Stippling around the entrance wound on Trina’s skull suggested an intermediate

range of fire—i.e., less than three feet.

{¶ 24} Dr. Armstrong took an X-ray of the dog’s head and was able to see

a bullet, confirming that the dog had been shot.

E. Forensic evidence

{¶ 25} Cellular-phone analysis, location-data analysis, and surveillance

video illustrated the timeline of events on April 14, 2017, and corroborated

Keener’s account of the crimes. At trial, the state introduced subscriber information

and historical call data from three phone companies. The state also presented

McAlpin’s Google account information, including location and content data.

{¶ 26} FBI Special Agent Brian Young reviewed cell-phone records to

determine whom McAlpin was in touch with on April 14, 2017, between 4:00 and

8:00 p.m. He concluded that during that period, there were several calls between

McAlpin’s cell phone and a number identified as Keener’s.

{¶ 27} The records show that McAlpin’s cell phone called Mr. Cars at 4:09

p.m. At 5:00 p.m., a customer called the shop and spoke to Trina for approximately

three minutes. Albert Martin, a friend of the victims, left the shop at 5:03 p.m. At

5:21 p.m., Trina and Michael moved the two blocker vehicles into position, then

went back into the shop.

{¶ 28} Around the same time, a few blocks away, McAlpin walked by the

wireless-phone store toward Mr. Cars, wearing a dark hoodie, a ball cap, and red

sweatpants. About a minute later, Keener was seen walking in the direction of Mr.

Cars. At 5:22 p.m., McAlpin’s phone was used to make a 39-second call to

Keener’s phone.

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{¶ 29} At 5:24 p.m., McAlpin walked into Mr. Cars. After McAlpin

entered, no one entered or left over the next hour and six minutes.

{¶ 30} The customer who spoke to Trina at 5:00 p.m. called Mr. Cars again

at 5:30 p.m. He testified that when Trina answered the phone, she was talking “very

low and quiet.” This struck him as odd because Trina was not a soft-spoken

individual. This was the last confirmed contact with either Trina or Michael.

{¶ 31} Between 5:22 and 6:47 p.m., 13 calls between McAlpin’s and

Keener’s phones were made, using cell towers in the general area around Mr. Cars.

Security video showed that McAlpin walked out of Mr. Cars at 6:31 p.m., back

inside a minute later, and then out again a minute after that. He then moved one of

the blocker cars away from the exit.

{¶ 32} At 6:41 p.m., McAlpin went back into the shop. He then left the

shop carrying something, walked to the Mercedes, and placed the object he was

carrying in the vehicle. McAlpin then walked to the BMW, got into the driver’s

seat, and moved the car along the side of the shop. Keener walked to the Mr. Cars

lot and got into the Mercedes. Both cars then drove off.

{¶ 33} From 7:00 to 7:30 p.m. and again between 8:07 and 8:43 p.m., there

was no cellular data for McAlpin’s cell phone. However, during that timeframe,

Keener’s cell phone moved north and then to the west side of Cleveland. Beginning

at 8:22 p.m., McAlpin’s Google account started generating location information

again, showing his phone moving in the same direction as Keener’s phone. At 8:43

p.m., Google location data placed McAlpin’s phone at West 48th Street. Around

9:00 p.m., phones belonging to McAlpin, Keener, and Keener’s girlfriend were all

in the area of West 48th Street.

{¶ 34} On April 5, 2017, McAlpin’s Google account was used to search for

information about firearms and different calibers. Then, in the early hours of April

15, the account was used to search for information on salvaging a 2008 BMW and

switching title to a vehicle without the owner’s permission. Following the murders,

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McAlpin’s Google account was used on several occasions to search for news

regarding the theft and murders that took place at Mr. Cars.

F. DNA evidence

{¶ 35} Laura Evans, a forensic DNA analyst with the Cuyahoga County

Medical Examiner’s Office, testified that the DNA profile from the modem in the

back office of Mr. Cars was a mixture of DNA from different people, that McAlpin

was the major contributor to the mixture, and that the match was “307 octillion

times more probable than a coincidental match to an unrelated African American

person.”

{¶ 36} Evans testified that the swabs from the back pockets of Michael’s

jeans contained a mixture of DNA and that McAlpin’s DNA profile was a match

“26.8 trillion times more probable than a coincidental match to an unrelated African

American person.”

{¶ 37} McAlpin’s DNA profile also matched two swabs from inside the

stolen BMW. Evans testified that a swab from the steering wheel was a match to

McAlpin “2.35 septillion times more probable than a coincidental match to an

unrelated African American person.” And a swab from the driver’s door interior

was a match to McAlpin “394,000 times more probable than a coincidental match

to an unrelated African American person.”

II. PROCEDURAL HISTORY AND SENTENCING

{¶ 38} McAlpin was charged with four counts of aggravated murder. In

Count 1, he was charged with the aggravated murder of Trina while committing

aggravated robbery and/or kidnapping and/or aggravated burglary. In Count 2, the

state charged McAlpin with the aggravated murder of Michael while committing

aggravated robbery and/or kidnapping and/or aggravated burglary. Counts 3 and 4

charged McAlpin with aggravated murder with prior calculation and design as to

Trina and Michael, respectively.

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{¶ 39} Each aggravated-murder count carried the following death-penalty

specifications: course of conduct involving multiple murders, R.C. 2929.04(A)(5);

murder during a kidnapping and the offender either was the principal offender or

committed the offense with prior calculation and design, R.C. 2929.04(A)(7);

murder during an aggravated burglary and the offender either was the principal

offender or committed the offense with prior calculation and design, R.C.

2929.04(A)(7); murder during an aggravated robbery and the offender either was

the principal offender or committed the offense with prior calculation and design,

R.C. 2929.04(A)(7); and murder committed while under detention or while at large

after breaking detention, R.C. 2929.04(A)(4). Counts 1 through 4 also contained

specifications for having a firearm under the offender’s control, R.C. 2941.141(A),

and for having a firearm under the offender’s control and displaying, brandishing,

indicating possession, or using it, R.C. 2941.145(A).

{¶ 40} Counts 5, 8, 9, 11, 17, and 19 charged McAlpin with two counts each

of aggravated robbery, aggravated burglary, and felonious assault as to Trina.

Counts 6, 7, 10, 12, 18, and 20 charged McAlpin with aggravated robbery,

aggravated burglary, and felonious assault as to Michael. Counts 13 and 14 charged

McAlpin with kidnapping Trina and Michael, respectively. Each of these counts

carried two firearm specifications, a notice-of-prior-conviction specification, and a

repeat-violent-offender specification.

{¶ 41} Counts 15 and 16 charged McAlpin with murdering Trina and

Michael, respectively, as a proximate result of committing or attempting to commit

a felonious assault as a first-degree or second-degree felony. Both counts also

carried two firearm specifications. McAlpin was also charged with having a

weapon while under disability (Count 21), grand theft (Counts 23 and 24), injuring

animals (Count 25), and cruelty to animals (Count 26).

{¶ 42} McAlpin pleaded not guilty to all charges. He elected to try the

weapons-under-disability charge and the notice-of-prior-conviction and repeat-

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violent-offender specifications to the court, which found him guilty on each. The

remaining counts were tried to a jury, with McAlpin representing himself from voir

dire through the mitigation hearing. The jury found McAlpin guilty as to the

remaining counts and specifications.

{¶ 43} The state elected to proceed to mitigation on the aggravated-murder

charges in Counts 1 and 2, each with three capital specifications for course of

conduct, for committing the aggravated murder while committing aggravated

burglary, and for committing the aggravated murder while committing aggravated

robbery. The jury recommended that McAlpin be sentenced to death for both

counts of aggravated murder. The trial court imposed death sentences for Counts

1 and 2 plus a consecutive three-year term for the firearm specification on each.

The court then sentenced McAlpin on the noncapital offenses to an aggregate term

of 63 years in prison.

III. ANALYSIS

A. Right to self-representation

{¶ 44} McAlpin waived counsel on July 19, 2018, and thereafter

represented himself at all pretrial hearings, during voir dire, and throughout his trial

and sentencing. In his first proposition of law, McAlpin argues that a capital

defendant’s Sixth Amendment right to waive counsel does not extend to

proceedings that are unique to a capital trial, such as death-qualification voir dire

and mitigation. McAlpin also urges this court to interpret the Ohio Constitution as

limiting the right to self-representation in capital cases.

1. Sixth Amendment

{¶ 45} The Sixth and Fourteenth Amendments to the United States

Constitution guarantee that every criminal defendant brought to trial in any state

has the right to the assistance of counsel in his defense. Faretta v. California, 422

U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “[T]he Sixth Amendment

right to the assistance of counsel implicitly embodies a ‘correlative right to dispense

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with a lawyer’s help.’ ” Id. at 814, quoting Adams v. United States ex rel. McCann,

317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Thus, “[t]he Sixth

Amendment does not provide merely that a defense shall be made for the accused;

it grants to the accused personally the right to make his defense.” Id. at 819.

{¶ 46} “Faretta’s holding was based on the long-standing recognition of a

right of self-representation in federal and most state courts, and on the language,

structure, and spirit of the Sixth Amendment.” McKaskle v. Wiggins, 465 U.S. 168,

174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Acknowledging that the right to defend

is personal, McKaskle concluded that “[t]he right to appear pro se exists to affirm

the dignity and autonomy of the accused and to allow the presentation of what may,

at least occasionally, be the accused’s best possible defense.” Id. at 176-177.

{¶ 47} A timely request to waive counsel and self-represent must be granted

“when [a defendant] voluntarily, and knowingly and intelligently elects to do so,”

State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the

syllabus. However, the right to represent oneself is not unlimited. For instance,

before permitting self-representation, the trial court must ensure that a defendant is

“aware of the dangers and disadvantages of self-representation” so that “ ‘he knows

what he is doing and his choice is made with eyes open.’ ” Faretta at 835, quoting

Adams at 279; see also Indiana v. Edwards, 554 U.S. 164, 175-176, 178, 128 S.Ct.

2379, 171 L.Ed.2d 345 (2008) (defendant with severe mental illness who cannot

perform basic necessary tasks may be denied self-representation). And there is no

Sixth Amendment right to waive counsel for a direct appeal. Martinez v. Court of

Appeal, 528 U.S. 152, 164, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000).

2. Analysis

{¶ 48} The United States Supreme Court has not considered whether the

right to self-representation, guaranteed by the Sixth Amendment, applies to capital

cases as a whole, including death-qualification voir dire and sentencing.

Significantly, however, the court has clarified that the Sixth Amendment right to

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effective counsel applies at all sentencing hearings. “A capital sentencing

proceeding * * * is sufficiently like a trial in its adversarial format and in the

existence of standards for decision * * * that counsel’s role in the proceeding is

comparable to counsel’s role at trial—to ensure that the adversarial testing process

works to produce a just result under the standards governing decision.” Strickland

v. Washington, 466 U.S. 668, 686-687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 49} Many state and federal courts have upheld the right to self-

representation at all stages of a capital trial. “[T]he penalty phase is merely another

stage in a unitary capital trial, and the Sixth Amendment right to counsel and

corresponding right to self-representation is not vitiated during the penalty phase.”

People v. Mickel, 2 Cal.5th 181, 209, 211 Cal.Rptr.3d 601, 385 P.3d 796 (2016).

“Sentencing is part of criminal prosecution, and the Sixth Amendment of course

applies to capital sentencing proceedings—were it not so, a defendant would have

neither the right to self-representation nor the right to counsel.” United States v.

Roof, 225 F.Supp.3d 394, 400 (D.S.C.2016); see also Cassano v. Shoop, 1 F.4th

458, 6th Cir. No. 18-3761, 2021 WL 2460980 (June 17, 2021) (denial of the

defendant’s request to represent himself at capital trial, without holding a hearing

to determine whether his waiver of counsel was knowing, intelligent, and voluntary,

violated the defendant’s Sixth Amendment right to self-representation); United

States v. Davis, 285 F.3d 378, 384 (5th Cir.2002); Nelson v. Alabama, 292 F.3d

1291, 1297 (11th Cir.2002); Silagy v. Peters, 905 F.2d 986, 1007 (7th Cir.1990)

(“no principled reason” exists to deny self-representation in capital cases); People

v. Dent, 30 Cal.4th 213, 218, 132 Cal.Rptr. 527, 65 P.3d 1286 (2003) (reversing

death sentence because the trial court denied self-representation for the “improper”

reason that it was a capital case); Duncan v. United States, D.Idaho No. 2:17-cv

-00091-EJL, 2019 WL 1320039, *17 (Mar. 22, 2019); Lay v. Trammell, N.D.Okla.

No. 08-CV-617-TCK-PJC, 2015 WL 5838853, *22 (Oct. 7, 2015).

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{¶ 50} We have upheld death sentences in cases in which the defendant

represented himself, but we have not explicitly addressed whether Faretta applies

to the mitigation phase of capital sentencings. See State v. Obermiller, 147 Ohio

St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 28 (noting that “both the United States

Supreme Court and this court have applied Faretta in capital cases and have

acknowledged that valid waivers of counsel in capital cases will be upheld”); State

v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 30-31 (upholding

waiver of counsel in capital case). In a 2002 capital case, we observed:

Ruling as [the] appellant requests would undermine the

constitutional guarantee to self-representation identified in Faretta

that we followed in Gibson[, 45 Ohio St.2d 366, 345 N.E.2d 399].

The fact that [the] appellant’s decision to waive counsel and

represent himself at trial was “not a good idea” is not the standard

by which courts adjudicate this issue. Self-representation by a

defendant is seldom “a good idea.” Both the state and federal

Constitutions, however, guarantee such a right to defendants with a

valid waiver of counsel, regardless of the wisdom of such a decision.

State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 53.

{¶ 51} McAlpin’s argument relies heavily on the analysis in Martinez, 528

U.S. at 164, 120 S.Ct. 684, 145 L.Ed.2d 597. The question presented in Martinez

was whether the right to self-representation extends to direct appeals. To answer

that question, Martinez examined the three bases on which Faretta had held that

the Sixth Amendment guarantees the right to self-representation at trial. Martinez

at 154, 156-160.

{¶ 52} First, the Martinez court found that there was no historical evidence

of a “long-respected right of self-representation” in appellate proceedings. Id. at

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159. In contrast, Faretta had found persuasive the robust historical evidence of the

right to self-representation in trial proceedings. Faretta, 422 U.S. at 832, 95 S.Ct.

2525, 45 L.Ed.2d 562. The Martinez court declined to interpret this “historical

silence” as probative evidence of the right to self-representation in the appellate

context, observing that “the right of appeal itself is of relatively recent origin.”

Martinez at 159.

{¶ 53} Second, the text of the constitutional amendment offered no support:

“The Sixth Amendment identifies the basic rights that the accused shall enjoy in

‘all criminal prosecutions.’ They are presented strictly as rights that are available

in preparation for trial and at the trial itself.” Id. at 159-160, quoting the Sixth

Amendment to the U.S. Constitution. McAlpin contends that just as the text of the

Sixth Amendment does not support a self-representation right in the appellate

process, it does not support a self-representation right for the entirety of capital

proceedings. He points to the statement in Martinez that “[t]he status of the accused

defendant, who retains a presumption of innocence throughout the trial process,

changes dramatically when a jury returns a guilty verdict,” id. at 162, and contends

that it shows that the Supreme Court has interpreted the Sixth Amendment’s text as

applying only to the traditional trial phase.

{¶ 54} However, McAlpin’s interpretation is incorrect. As noted above,

Martinez distinguished between appeals, to which Faretta does not apply, and trial

proceedings. But sentencing must be considered part of the trial. At sentencing,

the capital defendant is still defending against a certain punishment and the state

still has the burden to prove that the aggravating circumstances outweigh the

mitigating factors. A capital sentencing proceeding is “like a trial in its adversarial

format and in the existence of standards for decision,” so “counsel’s role in the

proceeding is comparable to counsel’s role at trial.” Strickland, 466 U.S. at 686-

687, 104 S.Ct. 2052, 80 L.Ed.2d 674. By contrast, on appeal, the defendant is no

longer trying “to fend off the efforts of the State’s prosecutor but rather to overturn

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a finding of guilt made by a judge or a jury below.” Ross v. Moffitt, 417 U.S. 600,

610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In short, a capital sentencing hearing

is a trial-like proceeding held before the trier of fact during which the underlying

facts continue to play a central role in the jury’s yet-to-be-made sentencing

determination. This is fundamentally different from an appeal, which is

predominantly about the law and the factual determinations previously made.

{¶ 55} And while we agree that the bifurcated capital trial did not exist

when the Sixth Amendment was adopted, it does not necessarily follow that the

right to self-representation does not apply to the mitigation phase of modern-day

capital proceedings. “Any attempt to determine the application of a constitutional

provision to a phenomenon that did not exist at the time of its adoption * * *

involves some degree of estimation—* * * but that is hardly a reason not to make

the estimation as accurate as possible.” Crawford v. Washington, 541 U.S. 36, 52,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn. 3.

{¶ 56} Finally, Martinez balanced the interest in individual autonomy

against “the government’s interest in ensuring the integrity and efficiency of the

trial.” 528 U.S. at 162, 120 S.Ct. 684, 145 L.Ed.2d 597. The court determined that

that balance weighed in favor of the government’s interest in fairness and due

process because “[t]he status of the accused defendant, who retains a presumption

of innocence throughout the trial process, changes dramatically when a jury returns

a guilty verdict.” Id.

{¶ 57} As to the third Martinez factor, McAlpin argues that the “public’s

interest in fairness, efficiency, and reliability is at its apex” in a capital trial,

including voir dire and the mitigation phase, and that allowing a defendant to

represent himself “undermines rather than furthers due process.” But these public

interests do not trump the defendant’s right to control his defense. We have adhered

to that principle by affirming a capital defendant’s right to waive mitigation, as long

as he is mentally competent to do so. State v. Ashworth, 85 Ohio St.3d 56, 706

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N.E.2d 1231 (1999), paragraphs one and two of the syllabus. In a capital case, the

decision to waive one’s right to present evidence in mitigation is arguably more

vital than whether to represent oneself. However, neither this court nor the United

States Supreme Court has suggested that the Eighth Amendment’s requirement of

heightened reliability in capital cases requires forcing an unwilling defendant either

to present mitigation evidence or to accept representation in a capital case. In both

instances, the defendant’s fundamental interest in autonomy is paramount.

{¶ 58} Applying the three Martinez factors shows that the Sixth

Amendment’s right to self-representation extends to capital trials, including to

proceedings unique to capital trials such as death-qualification voir dire and the

mitigation hearing. The state and federal courts that have addressed this question

have resoundingly held the same. Therefore, we reject McAlpin’s claim that the

right to self-representation does not extend to all phases of a capital trial.

3. Ohio Constitution

{¶ 59} McAlpin argues that we should, under Article I, Section 10 of the

Ohio Constitution, hold that a capital defendant has no right to self-representation

for death-qualification voir dire and the mitigation hearing. In relevant part, Article

I, Section 10, provides that “[i]n any trial, in any court, the party accused shall be

allowed to appear and defend in person and with counsel.”

{¶ 60} Although the Ohio Constitution is a document of independent legal

force, Humphrey v. Lane, 89 Ohio St.3d 62, 68, 728 N.E.2d 1039 (2000), the state

may not provide a criminal defendant with fewer rights than the United States

Constitution grants. “In the areas of individual rights and civil liberties, the United

States Constitution, where applicable to the states, provides a floor below which

state court decisions may not fall.” Arnold v. Cleveland, 67 Ohio St.3d 35, 616

N.E.2d 163 (1993), paragraph one of the syllabus. We therefore find McAlpin’s

argument that the Ohio Constitution limits the right to self-representation not well

taken.

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{¶ 61} We reject McAlpin’s first proposition of law.

B. Interference of standby counsel

{¶ 62} As his second proposition of law, McAlpin argues that his standby

counsel interfered with his trial preparation and strategy by determining that a

defense expert DNA report should not be prepared because it would not be

beneficial to McAlpin’s case, without allowing McAlpin to make the choice for

himself, and by failing to inform the court-appointed defense expert that McAlpin

had the right to make decisions on his own behalf. McAlpin contends that standby

counsel’s alleged interference denied him his Sixth Amendment right to self-

representation and that this denial constituted structural error. In response, the state

argues that McAlpin forfeited his complaint about not having the expert DNA

report by failing to raise it in a timely manner. The state also contends that even if

“McAlpin [had] made a timely complaint * * * over his inability to obtain the DNA

report,” having the report would not have altered the outcome of trial.

1. Relevant law

{¶ 63} “The right to appear pro se exists to affirm the dignity and autonomy

of the accused.” McKaskle, 465 U.S. at 176-177, 104 S.Ct. 944, 79 L.Ed.2d 122.

Self-representation was typical at common law and remains a viable corollary right

to the Sixth Amendment right to counsel, “however counterproductive that course

may be.” McCoy v. Louisiana, __ U.S. __, __, 138 S.Ct. 1500, 1507, 200 L.Ed.2d

821 (2018). A criminal defendant who chooses to represent himself or herself has

no Sixth Amendment right to standby counsel. State v. Hackett, 164 Ohio St.3d 74,

2020-Ohio-6699, 172 N.E.3d 75, ¶ 8. However, when a trial court does appoint

standby counsel, there are limits on how involved counsel may be while assisting a

self-represented defendant. Id. at ¶ 10.

{¶ 64} McKaskle articulated two limits on participation by standby counsel.

First, standby counsel must allow the defendant to “actual[ly] control * * * the case

he chooses to present to the jury.” Id. at 178. This is the “core of the Faretta right,”

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id., and demands that the self-represented defendant “be allowed to control the

organization and content of his own defense, to make motions, to argue points of

law, to participate in voir dire, to question witnesses, and to address the court and

the jury at appropriate points in the trial,” id. at 174. If standby counsel “make[s]

or substantially interfere[s] with any significant tactical decisions, or * * *

control[s] the questioning of witnesses, or * * *speak[s] instead of the defendant,”

the defendant’s right to self-representation has been violated. (Emphasis sic.) Id.

at 178. Second, “participation by standby counsel without the defendant’s consent

should not be allowed to destroy the jury’s perception that the defendant is

representing himself.” Id. Standby counsel violates this tenet if they become

“excessive[ly] involve[d]” in the trial such that the jury’s perception of the

defendant’s autonomy is undermined. Id. at 181-182.

{¶ 65} A violation of a defendant’s right to self-representation is considered

structural error. See id. at 177, fn. 8. A structural error “ ‘affect[s] the framework

within which the trial proceeds,’ rather than being ‘simply an error in the trial

process itself.’ ” Weaver v. Massachusetts, __ U.S. __, __, 137 S.Ct. 1899, 1907,

198 L.Ed.2d 420 (2017), quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111

S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural errors “defy analysis by ‘harmless-

error’ standards,” Fulminante at 309, for three reasons: (1) “the right at issue is not

designed to protect the defendant from erroneous conviction but instead protects

some other interest,” Weaver at 1908, (2) “the effects of the error are simply too

hard to measure,” id., and (3) “the error always results in fundamental unfairness,”

id. But a structural error need not satisfy all three criteria: “An error can count as

structural even if the error does not lead to fundamental unfairness in every case.”

Id.

{¶ 66} As we have observed more than once, the plain-error rule still applies

to errors that were never objected to at trial, even if those errors can be classified

as structural. See State v. Hill, 92 Ohio St.3d 191, 199, 749 N.E.2d 274 (2001)

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(noting that the United States Supreme Court has “found that it had no authority to

create a ‘structural error exception’ to the [plain-error] rule, and seemed to hold

that, in direct appeals from federal convictions, a structural error analysis is

inappropriate in a plain-error situation”), citing Johnson v. United States, 520 U.S.

461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); State v. Drummond, 111 Ohio

St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 59 (holding that “counsel’s failure

to object to the closing of the courtroom constitutes a waiver of the right to a public

trial”). Because McAlpin failed to timely object to the alleged error, our review is

subject to the plain-error standard. To establish plain error, McAlpin must show

that an error occurred, that the error was obvious, and that there is “a reasonable

probability that the error resulted in prejudice,” meaning that the error affected the

outcome of the trial. (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 22. As discussed in more detail below, the facts do

not establish that McAlpin was prejudiced by standby counsel’s involvement.

Thus, McAlpin cannot show plain error.

2. Relevant facts

a. Pretrial through trial-phase proceedings

{¶ 67} On July 19, 2018, the trial court accepted McAlpin’s waiver of

counsel and appointed his defense attorneys as standby counsel. Standby counsel

stated that they wanted to make sure that all motions filed on McAlpin’s behalf

under the previous case number were transferred to the current case in the event

that McAlpin wanted to argue them. Among other things, counsel had filed a

motion for discovery of biological testing on McAlpin’s behalf and had retained

Forensic Bioinformatic Services to conduct a DNA analysis. Counsel also had

retained a forensic digital expert, a private investigator, a mitigation specialist, and

a psychologist.

{¶ 68} At a pretrial hearing on July 24, 2018, McAlpin informed the trial

court that he had not spoken to any of the experts that his standby counsel had hired

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for him. McAlpin asserted, “[N]ow that I am representing myself, all things that

[are] forwarded from [the defense investigator] should come directly to me and not

anyone else, and I want to get that understanding.” Standby counsel agreed to ask

the private investigator to visit McAlpin at the jail.

{¶ 69} At a hearing on July 25, McAlpin asked about his DNA expert and

told the trial court that he had “no names, no credentials, no paperwork, no motions,

no discovery, or any of the sort from [his] side” and that he was “totally lost.” He

elaborated, “I don’t know anything about the C[V]s, I don’t know anything about

certain experts or certain credentials that I need to be aware of, so that’s what I

speak about being lost. Not procedural, but actual things that should have been

[taking] place once I had counsel.”

{¶ 70} During a hearing on August 1, standby counsel stated, “[A]t no time

ha[ve we] concealed or held back discovery for Mr. McAlpin; it’s always been

available.” Standby counsel averred that they had provided McAlpin with all the

information on the experts they had retained. And although they had already given

McAlpin the DNA expert’s curriculum vitae, standby counsel agreed to provide it

again. McAlpin explained that the jail routine was keeping him from calling

experts. The state responded that it would talk to the jail’s sheriff about “getting

McAlpin phone access for witnesses or experts.”

{¶ 71} At a hearing on August 8, McAlpin said that he had “access to * * *

the DNA expert, but yet at the same time [was] being forced to use a phone [that

was] not a secure line.” The state acknowledged that jail phone calls are recorded

but agreed not to listen to McAlpin’s calls with any experts.1

{¶ 72} At McAlpin’s request, on August 23, the trial court appointed two

new standby counsel in place of McAlpin’s original standby counsel.

1. The trial court stated that it would issue an order preventing the state from listening to any calls

between McAlpin and an expert. No such order appears in the record.

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January Term, 2022

{¶ 73} On September 19, the state asked McAlpin’s new standby counsel

to make sure that McAlpin understood the rules regarding expert reports. McAlpin

told the court that he had not yet gotten in touch with the DNA expert but that he

“no longer need[ed] any more continuances and [was] prepared to go to trial.” He

repeated a second time during that hearing that he was ready for trial.

{¶ 74} As of November 2018, McAlpin had not been able to talk to the

DNA expert and the expert was still waiting for the state to provide additional

information. Hearing this, standby counsel promised to “grab the bull by the horns

on the DNA and * * * make sure that everything is proceeding.” McAlpin then told

the trial court, “I don’t understand why [there is] such a drag with the trial [date].

I’ve been prepared.”

{¶ 75} By February 7, 2019, McAlpin still had not talked to the DNA

expert. The state averred that the expert had requested “additional discovery

regarding the swabs” from Diggs, Keener, and the stolen Mercedes. The state

indicated that it was preparing a supplemental packet of discovery and that it would

provide McAlpin with copies. McAlpin responded that he had neither spoken to

nor received any mail from the defense DNA expert. There was no further mention

of the defense DNA expert before trial began on March 26, 2019.

{¶ 76} The expert was mentioned only once during trial, just before Keener

testified. At that juncture, the state orally moved to have McAlpin deliver any other

evidence, including the defense DNA report, to the state immediately. The trial

court denied the state’s motion because McAlpin stated that he had disclosed

everything he had and that he did not have a DNA report.

{¶ 77} On April 16, 2019, the jury returned its verdict finding McAlpin

guilty of all counts and specifications in the superseding indictment.

b. Motion for a new trial

{¶ 78} On April 29, McAlpin filed a motion for a new trial and requested a

hearing on the motion. Most of McAlpin’s new-trial motion argued prosecutorial

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misconduct. However, McAlpin also argued that Evans, the state’s DNA expert,

committed misconduct when she testified that McAlpin’s DNA profile was found

“on a modem, on a pocket and on a steering wheel.” McAlpin asserted that he had

reviewed Evans’s “work” and that he had actually been “excluded from being a

contributor of DNA to the modem and the pocket.” (Emphasis sic.) McAlpin

contended that he would have been acquitted if not for Evans’s untruthful

testimony.

{¶ 79} The state filed a memorandum opposing McAlpin’s new-trial

motion. With respect to McAlpin’s claims about Evans’s testimony, the state

responded that McAlpin was not qualified as an expert and thus could not himself

offer testimony on DNA analysis. In his reply, McAlpin argued that he would

“show the accuracy of his argument of the DNA results,” but he did not explain

how.

c. Hearing on McAlpin’s motion for a new trial

{¶ 80} On May 13, 2019, the court heard McAlpin’s motion for a new trial.

McAlpin argued:

I’m only going to reiterate what [Evans] said inside of her

testimony that was already given with evidence of the DNA profiles

in this case. Th[e profiles] w[ere] never admitted into evidence, only

results w[ere] admitted into evidence.

And I will take the stand to reiterate exactly word for word,

quote for quote what a match is. How do you generate a match?

Then I will go and give copies of—I would enter into evidence each

DNA profile, for every DNA profile that was allegedly associated

with mine and we saw a great contradiction that may make the Court

to bring Ms. Evans in here to give an understanding as to the

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findings that has been considered as newly discovered evidence

under Criminal Rule 33.

I’m not an expert. * * * But I can reiterate testimony that

was already given with evidence.

The trial court denied McAlpin’s request to take the stand.

{¶ 81} After the parties’ arguments concluded, the trial court ruled from the

bench, denying McAlpin’s motion for a new trial. The mitigation hearing began

that day.

d. May 16, 2019 hearing

{¶ 82} On the third day of the mitigation phase, before the jury was seated,

McAlpin informed the trial court that he had an issue with his DNA expert. He

stated that he had been asking one of his standby counsel, Kevin Cafferkey, for the

expert’s report “during trial and also after the trial.” According to McAlpin, when

he asked about the DNA report during trial, Cafferkey said that a report would not

be helpful to the defense. McAlpin continued:

On 5/5/19, Mr. Cafferkey came to see me [at the jail]. That

was the first time he gave me a copy of the DNA profiles that was

from Ms. Carrie Roland * * *. And when he gave me these DNA

profiles, I asked * * * w[ere] there any reports that go with [the

profiles]?

He said no, he didn’t need a report. It was harmful. The

prosecution doesn’t know about [Roland’s profiles]. We’re going

to keep these to [ourselves]. We’re not going to let them know that

we had these DNA profiling. I thought it was kind of odd and weird.

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On the next day, * * * I called [Cafferkey]. I let him know

that * * * I didn’t receive the report, and I wanted the report from

the expert.

***

* * * He said, okay, I’m going to give it to you.

Then on 5/8, I called [Cafferkey] * * * on a recorded call. I

called him on a three-way with my relative. I asked him once again,

hey, I want the report because I need that for my Monday new trial

hearing.

That was the reason why I wasn’t able to give forth my * * *

newly discovered [DNA] evidence. * * * He never brought it.

Then on 5/9/19 * * * [both standby counsel] * * * came to see me

and we had a phone call with * * * Roland.

Now, this whole time that I had the motion for expert that

was granted, * * * for the DNA expert from [my original standby

counsel] * * * I was under the impression that I was receiving an

expert by the name of Dan E. Crane.

***

* * * That’s who I thought I had as an expert. The numbers

that [were] given to me on inside of the motion [were] the numbers

I was calling throughout the trial, and I was telling [the court] on

record I’m not able to get in touch with my DNA expert.

So, we were on the phone on 5/9/19, the visit with my

standby counsel, we were on the phone with Ms. Roland.

I [took her] number down myself because I wanted to talk to

her. She was explaining some things to me about the DNA profile

that didn’t make sense to me.

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January Term, 2022

So, I wanted to talk to her myself and I asked her where was

the report. * * *

[She said] I didn’t think that whoever hired me wanted to

pay me for a report that wasn’t in your favor. * * * I said I’m the

acting attorney. I’m the one who’s responsible for you. She sa[id],

well, okay, I understand. * * *

***

Then on 5/15/19, * * * on a recorded call, I called [Cafferkey

and my family], and asked him why I haven’t received a report from

the expert yet?

* * * [He said] oh, don’t worry about the reports, Joe. You

don’t need them. It’s not going to work for you.

***

Later on that day, on 5/15/19, * * * I called the DNA expert,

Ms. Carrie Roland via three-way [with] my family member. And I

asked her what was the date that you gave Mr. Cafferkey those

reports, the DNA profiles?

She was, like, is [Cafferkey] on the phone? I said no. She

said well, [Cafferkey] told me I’m not allowed to talk to you or

anybody else unless he’s present.

I said, whoa. * * * I’m the acting attorney. * * * You’re

my expert. She said, well, I’m only allowed to talk to the person

who’s payin[g] me. [Cafferkey is] the one paying me. I say he’s

not payin[g], the Court’s paid you. And I’m the acting attorney.

[She said] well, I don’t want to cross [any] lines, and I can’t

talk to you unless he’s present. * * *

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[Cafferkey] came and visited me. I asked him about it. He

de[nied] it. * * * I don’t believe Ms. Roland would just make up

that lie.

***

There’s no way possible [if I am the] acting attorney [that]

Mr. Kevin Cafferkey can stop me from getting a report after I asked

for it.

He can advise me all he wants. But if I say no, I want

something, he was supposed to give that to me.

***

It’s no way possible after I asked a multitude of times during

trial, and after trial for me to have the report. I never received it

which would enable me to have—to properly cross-examine Ms.

Evans.

I would like to renew my motion for a new trial due to the

newly discovered information, and also by the recorded calls that

can back this up. Documentation beats conversation.

{¶ 83} The trial court gave Cafferkey an opportunity to respond, but he

declined to speak because of attorney-client privilege. The prosecutor then stated,

“Sounds like good lawyering to me. Sounds like his independent DNA expert came

up with some answers that were not favorable to him, and they didn’t want to

confirm his guilt any more than it already had been confirmed during trial, so they

told the expert not to prepare a report.” In response, McAlpin said that standby

counsel was supposed to be only “an adviser,” that there is no hybrid counsel, and

that what standby counsel did was prohibited when McAlpin was representing

himself.

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{¶ 84} The court then stated, “Well, you’re right now. There’s no hybrid

counsel. But everything that you put on the record here was after the jury had

already returned its verdict.” The court continued, “Earlier in this case, you had

been complaining about not being able to talk to the expert because you were in

jail. * * * We tried to work around that somehow. * * * [T]hen ultimately, you

had now found a way to do it. You’d been contacting these experts directly. Why

didn’t you do that two or three months ago is beyond my [ken].” The court

concluded that McAlpin had waited too long to raise this issue, saying: “This is a

conversation we should have had a month or two ago. We are going to finish the

case today.” In response, McAlpin said that he had only just found out that standby

counsel had hired someone new and that he had been mistakenly trying to call the

expert that his former counsel had hired.

{¶ 85} Standby counsel added that they had not retained a new DNA-expert

company; Crane was the owner of Forensic Bioinformatic Services, and Roland

worked in the lab there. When the trial court asked Cafferkey whether he had told

Roland not to speak to McAlpin, Cafferkey responded, “Absolutely not.” McAlpin

reminded the court that the jail phone calls were recorded. But the trial court was

unmoved, stating, “We’ve already got the decision on the base counts” and advised

McAlpin that he had preserved the issue for appeal.

{¶ 86} On June 5, 2019, the trial court filed findings of fact and conclusions

of law denying McAlpin’s motion for a new trial. That document does not address

the information presented by McAlpin at the May 16 hearing.

3. Analysis

{¶ 87} There is no dispute that McAlpin failed to object to standby

counsel’s alleged interference before the jury found him guilty. McAlpin contends

that he could not have objected during trial, because he did not discover standby

counsel’s improper actions with the DNA expert until after the jury returned its

verdict. But we reject this claim because regardless of standby counsel’s conduct,

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McAlpin could have objected to the trial’s proceeding until he had contacted his

expert to discuss the preparation of a report. Moreover, even as McAlpin

complained that he had been unable to reach the expert or get the expert’s report,

he asked the trial court to schedule his trial. Under these circumstances, McAlpin’s

failure to make a timely objection has forfeited all but plain-error review of the

claim. See Weaver, __ U.S. at __, 137 S.Ct. at 1910, 198 L.Ed.2d 420 (in case of

structural error, when “there is an objection at trial and the issue is raised on direct

appeal” the defendant generally is entitled to automatic reversal [emphasis added]).

{¶ 88} McAlpin’s primary complaint is that standby counsel significantly

interfered with a tactical decision—whether to have the defense DNA expert

prepare a report—that foreclosed him from actually controlling his defense. The

challenged conduct did not occur in front of the jury, and thus only McKaskle’s first

limitation is implicated (i.e., standby counsel must allow the defendant to actually

control his case).

{¶ 89} McAlpin argues that standby counsel made crucial decisions

regarding the defense DNA expert, such as whether to have Roland prepare a report,

without his participation or knowledge. McAlpin avers that he would have asked

Roland to prepare a report and contends that standby counsel interfered with a core

self-representation right—the right to make all tactical decisions regarding

witnesses and evidence—by telling her not to.

{¶ 90} To find that a McKaskle error occurred here, we would have to

assume the truth of McAlpin’s statements and assume that standby counsel was

untruthful when he told the trial court that he did not instruct Roland not to talk to

McAlpin. The record before us does not support making such assumptions. But

even if the record did support the conclusion that standby counsel interfered with

McAlpin’s right to self-representation, McAlpin could not establish plain error,

because he cannot show a reasonable probability that but for standby counsel’s

actions, the jury would have acquitted him. See Rogers, 143 Ohio St.3d 385, 2015-

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Ohio-2459, 38 N.E.3d 860, at ¶ 22. During the May 13, 2019 hearing on his new-

trial motion, McAlpin stated that his goal was to undermine the testimony of the

state’s DNA expert. And at the May 16 hearing, McAlpin explained to the judge

that he had wanted Roland to prepare a DNA report so that he could have used it to

effectively cross-examine the state’s expert. But there is no indication that had the

report been prepared, it would have aided in cross-examination of the state’s DNA

expert. Indeed, even McAlpin’s recollection of what Roland told him confirmed

that the report, if made, would not have been favorable to him.

{¶ 91} For the foregoing reasons, we reject McAlpin’s second proposition

of law.

C. Sufficiency of the evidence

{¶ 92} In proposition of law No. III, McAlpin contends that the state failed

to prove beyond a reasonable doubt that he committed the murders with prior

calculation and design. He maintains that the evidence was sufficient to establish

that the murders were purposeful but insufficient to establish prior calculation and

design.

{¶ 93} The standard of review for sufficiency of the evidence is well

established. “When evaluating the adequacy of the evidence, we do not consider

its credibility or effect in inducing belief. Rather, we decide whether, if believed,

the evidence can sustain the verdict as a matter of law.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13. In reviewing for

sufficiency, we must consider the evidence “in a light most favorable to the

prosecution.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus, superseded by constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4.

{¶ 94} At issue here is whether the state presented sufficient evidence of the

fifth and sixth capital specifications that were attached to both Counts 1 and 2.

They alleged that McAlpin committed aggravated murder while he “was

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committing, attempting to commit, or fleeing immediately after committing or

attempting to commit * * * aggravated robbery, or aggravated burglary, and either

the offender was the principal offender in the commission of the aggravated murder

or, if not the principal offender, committed the aggravated murder with prior

calculation and design,” R.C. 2929.04(A)(7).

{¶ 95} The evidence that McAlpin was the principal offender in the

commission of the aggravated murders was overwhelming. McAlpin’s DNA was

on items inside Mr. Cars, inside the back pocket of Michael’s jeans, and on one of

the stolen vehicles. Surveillance video shows McAlpin entering Mr. Cars, spending

a lengthy period of time inside the building, leaving the building, and driving away

in the BMW. Keener’s testimony established that only McAlpin—not Diggs or

Keener—entered the building. And cell-phone analysis showed that Keener and

McAlpin contacted each other more than a dozen times immediately before and

immediately after the murders. This evidence more than sufficiently supports the

jury’s verdict that McAlpin committed the murders as the principal offender. Thus,

it is unnecessary to consider his claim that he did not commit the murders with prior

calculation and design. We reject McAlpin’s third proposition of law.

D. Jury issues

{¶ 96} In proposition of law No. IV, McAlpin contends that a prospective

juror was improperly excused for cause because he had reservations about capital

punishment. And in proposition of law No. V, McAlpin maintains that the state

exercised peremptory challenges to prospective jurors in a pattern that resulted in

the improper dismissal of women.

1. Excusal of prospective juror No. 30

{¶ 97} One of the questions on the death-qualification questionnaire asked

prospective jurors to rank their level of support for the death penalty on a scale of

one to ten, with one being “strongly opposed” to the death penalty. Prospective

juror No. 30 selected four out of ten.

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{¶ 98} During individual voir dire, the trial court asked prospective juror

No. 30 about some responses on his questionnaire. The juror explained, “I’m

Catholic so I do have some kind of moral stance, but if it was a matter of can I

objectively, like you said, weigh the evidence, I think I could.” He added, “I’ve

never * * * been faced with that decision and to be honest, I don’t know how I

would feel.” The trial court explained that it had reviewed the prospective juror’s

questionnaire and sensed “a certain kind of ambivalence” in his responses.

{¶ 99} When questioned by the state, prospective juror No. 30 agreed that

he had some reservations about capital punishment. And when asked whether those

reservations “would [a]ffect [his] ability to serve as a juror in this case,” he

responded: “It might. * * * [I]t’s always been something I’ve struggled with.” He

agreed with the prosecutor that his questionnaire response about the level of his

opposition to the death penalty was “kind of in the middle, maybe a little bit leaning

against.”

{¶ 100} After describing the weighing process as subjective, the prosecutor

asked prospective juror No. 30 whether he “would start out with [his] finger on the

scale for the mitigation instead of the aggravation, against the death penalty?”

Prospective juror No. 30 said, “I think I might,” although it would be only a “slight

difference.” Ultimately, he told the prosecutor that he was not “a hundred percent

certain” that he could sign a verdict imposing the death penalty on someone even

if the state proved “the things that [the state would] have to prove.”

{¶ 101} During McAlpin’s examination, prospective juror No. 30 further

explained: “[I]f I in my mind believe that the aggravating circumstances outweigh

the mitigating circumstances, obviously by law, I would have to, but how I arrived

to that, I don’t know. You know, it’s a subjective.” He later said, “[I]f I’m leaning

against the death penalty as a moral stance, and I’d be truly being objective and

saying the aggravating circumstances, let’s say I would say mitigating

circumstances outweigh the aggravation, maybe I’m tipping the scales before I get

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on.” Even when McAlpin tried to rehabilitate him, prospective juror No. 30

responded, “[W]hen it comes specifically to the death penalty * * *, I think that’s

where maybe I get a little wishy washy * * *.” (Emphasis added.)

{¶ 102} The state moved to excuse prospective juror No. 30 for cause

because he “pretty clearly said that he would start out predisposed in favor of a life

sentence.” Over McAlpin’s objection, the trial court excused prospective juror No.

30 for cause.

{¶ 103} The Sixth Amendment guarantees to a defendant the right to an

impartial jury. As explained by the United States Supreme Court, this clause

prevents the state from impaneling a jury that is “uncommonly willing to condemn

a man to die.” Witherspoon v. Illinois, 391 U.S. 510, 518, 521, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968). “A prospective juror may not be excluded for cause simply

because the prospective juror expresses reservations about imposing the death

penalty.” State v. Madison, 160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867,

¶ 87. However, a trial court may exclude a prospective juror for cause if the juror’s

beliefs about capital punishment “would prevent or substantially impair” the juror’s

performance of duties in accordance with his or her instructions and oath. Adams

v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). A trial court

may excuse a prospective juror for cause if the court “is left with the definite

impression that [the] prospective juror would be unable to faithfully and impartially

apply the law.” Wainwright v. Witt, 469 U.S. 412, 425-426, 105 S.Ct. 844, 83

L.Ed.2d 841 (1985).

{¶ 104} A trial court’s ruling on a challenge for cause should be upheld

absent an abuse of discretion. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971,

804 N.E.2d 433, ¶ 80, 86.

{¶ 105} McAlpin acknowledges that prospective juror No. 30 was

“predisposed to favor life over death,” but McAlpin contends that that does not

mean that the prospective juror was substantially impaired. McAlpin maintains that

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the law was not “adequately explained” to prospective juror No. 30 and that

therefore, the juror did not know that “he may have a bias as long as he can set it

aside and follow the law.” In response, the state contends that prospective juror

No. 30’s responses during voir dire were ambiguous at best and that the trial court

was within its discretion to resolve that ambiguity in the state’s favor.

{¶ 106} McAlpin argues that even if a prospective juror tends to favor or

disfavor the death penalty, the prospective juror is not substantially impaired unless

it appears to the trial court that his or her “bias or lean would affect the juror[’]s

ability to follow the law.” Though that is a correct statement of the law, the record

shows that prospective juror No. 30 failed to affirmatively state that he could sign

a death verdict if the state proved that the aggravating circumstances outweighed

the mitigating evidence. The prospective juror’s responses during voir dire were

consistently ambiguous as to whether he could sign a death verdict. And “when

there is ambiguity in the prospective juror’s statements, ‘the trial court, aided as it

undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to

resolve it in favor of the State.’ ” (Brackets sic.) Uttecht v. Brown, 551 U.S. 1, 7,

127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007), quoting Witt, 469 U.S. at 434, 105 S.Ct.

844, 83 L.Ed.2d 841. McAlpin’s examination served only to demonstrate that

prospective juror No. 30 would be able to impose one of the three life sentences but

not the death sentence.

{¶ 107} McAlpin has not shown that the trial court abused its discretion by

granting the state’s motion to excuse prospective juror No. 30 for cause.

Accordingly, we reject McAlpin’s fourth proposition of law.

2. Use of peremptory challenges to dismiss women from the venire

{¶ 108} Following the death-qualification portion of voir dire, the trial court

gave the state and McAlpin six peremptory challenges each, plus an additional two

for alternates. The state used five of its six peremptory challenges, excusing four

female prospective jurors and one male prospective juror. McAlpin used all six

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available peremptory challenges, excusing three women and three men from the

venire.

{¶ 109} McAlpin asserts that the state violated the Equal Protection Clause

by using four peremptory challenges on female potential jurors. He states: “The

unfairness here is based upon the possible belief by the prosecution that women, as

a whole, may not be as eager to invoke the death penalty as men.”

{¶ 110} Although it is possible to establish an equal-protection violation

based on gender discrimination in voir dire, “a party alleging gender discrimination

must make a prima facie showing of intentional discrimination before the party

exercising the challenge is required to explain the basis for the strike.” J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 144-145, 114 S.Ct. 1419, 128 L.Ed.2d 89

(1994). McAlpin failed to object during voir dire to the state’s use of its challenges

to remove women. Thus, he has forfeited his challenge absent a showing of plain

error. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930,

¶ 91-92.

{¶ 111} McAlpin cannot show plain error. To begin, McAlpin merely

speculates that the state believed that women were less likely than men to impose

the death penalty. This speculation falls far short of establishing discrimination

that would support an equal-protection challenge. Furthermore, the fact that many

more female prospective jurors than male prospective jurors were called to the jury

box for voir dire provides a logical and innocuous explanation for why more female

prospective jurors were ultimately dismissed. After an initial group of prospective

jurors was excused by the court, there remained a pool of 62 prospective jurors.

Only 41 of those prospective jurors were called to the jury box for voir dire by the

court (the remainder were excused by the court after the jury was seated). Of those

41 called to the jury box, 27 were women and 14 were men. Nine women and four

men were excused for various reasons (employment, health, etc.), leaving the total

number of prospective jurors at 18 women and ten men. After the state and

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McAlpin each exercised their first round of peremptory challenges, nine women

and five men remained seated in the jury box for voir dire. After the state passed

on its second peremptory challenge, McAlpin excused one more male juror. After

that, the court added four more prospective jurors, all of whom were female,

resulting in 13 women and four men in the jury box for voir dire. The jury panel

after voir dire and all challenges was made up of 11 women and five men. The fact

that the state used its peremptory challenges to excuse more female prospective

jurors than male prospective jurors makes sense under these circumstances.

Because there were significantly more women who were called to the jury box to

participate in voir dire, there was a greater likelihood that more female prospective

jurors would be excused in the end. Thus, we reject McAlpin’s fifth proposition of

law.

E. Improper admission of victim-impact evidence

{¶ 112} In his sixth proposition of law, McAlpin argues that the state

elicited inadmissible victim-impact testimony from multiple witnesses during the

trial phase, which resulted in unfair prejudice that carried over to the mitigation

phase. Except when noted, McAlpin failed to object to the introduction of the

allegedly inadmissible evidence and has forfeited all but plain error. State v. Wilks,

154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 77.

{¶ 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. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 113.

The admission of such evidence is generally limited to the sentencing phase of the

death-penalty proceedings. Id., citing R.C. 2930.13, 2930.14(A), 2947.051, and

Article I, Section 10(a)(A)(3), Ohio Constitution. We have allowed victim-impact

testimony during the trial phase of a capital case “only when the evidence was

relevant to the facts attendant to the offense.” Id. at ¶ 113; see also id. at ¶ 136;

Evid.R. 402 (evidence that is not relevant is not admissible). Such evidence should

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not be overly emotional or directed to the penalty to be imposed. Graham at ¶ 113,

136; see Evid.R. 403(A) (“evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury”).

{¶ 114} “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.” Graham at ¶ 123. Factors

relevant in making that determination include “the length of the victim-impact

testimony,” “whether witnesses, jurors, and audience members showed physical

signs of emotion during the testimony,” “the detail and depth of the victim-impact

testimony with regard to the murder victim[s],” and “whether the victim-impact

witness used emotionally charged language.” Id. at ¶ 126. This is not an exhaustive

list. Id.

1. Colin Zaczkowski’s testimony

{¶ 115} Colin Zaczkowski, Trina’s son and Michael’s stepson, testified that

he was 19 years old at the time of the murders and that he and his then 13-year-old

sister were living at home with their parents, Michael and Trina, in April 2017.

Zaczkowski also testified that his younger stepbrother spent every other weekend

with the family and was there with Zaczkowski and his sister on the night of the

murders. Zaczkowski explained that Michael gave Axel, the family’s dog, to Trina

as a surprise and that Axel went to Mr. Cars every day.

{¶ 116} Zaczkowski testified that Michael and Trina had married when he

was about five years old. They divorced eight years later but reunited three years

after that. Zaczkowski said that his biological father died of an overdose in 2008,

when Zaczkowski was 11.

{¶ 117} Zaczkowski testified that Mr. Cars was “basically the definition of

a mom and pop shop. It was our family lifeline. * * * It was more of a home than

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a business.” He explained that Michael’s father had started the business and

transferred it to Michael around 2000. Mr. Cars was open between 10:00 a.m. and

6:00 p.m. during the week, but sometimes Michael and Trina would stay later if

they needed to finish a repair or deliver a car. In April 2017, Zaczkowski was

working full-time in Eastlake, but he sometimes stopped by Mr. Cars to help out.

When asked why, Zaczkowski responded: “It was home. It was like stopping at

home.”

{¶ 118} McAlpin argues that much of Zaczkowski’s testimony was both

irrelevant and unnecessarily emotional. However, most of Zaczkowski’s testimony

did not touch on Michael’s and Trina’s personal characteristics or the impact that

their murders had on their family and thus was not true victim-impact evidence.

Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, at ¶ 113.

Zaczkowski’s testimony that Mr. Cars was “like home” to him and his family was

somewhat emotional, but it was brief.

{¶ 119} The state argues that Zaczkowski’s testimony about his biological

father’s death was relevant to establish his state of mind when he found Michael’s

and Trina’s bodies at the scene of the murders. But Zaczkowski’s state of mind at

the time he found the bodies is irrelevant in the context of McAlpin’s guilt or

innocence. See id. at ¶ 119 (finding irrelevant and inadmissible “victim-impact

testimony from a justifiably grieving father during the guilt phase of the trial”).

Thus, Zaczkowski’s testimony about his biological father’s overdose was

inadmissible.

2. Albert Martin III’s testimony

{¶ 120} Albert Martin met Michael and Trina in 2005 when he purchased a

used car from Mr. Cars, and they later became “really good friends.” For example,

he testified that he previously had brought them a leg of lamb for Christmas and

had spent New Year’s with them. He called Michael his “brother from another

mother.”

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{¶ 121} Martin testified that he was injured while serving in the Marines

and had had ten surgeries; after the third, he began to abuse drugs. He testified that

Michael and Trina gave him support and encouraged him to get back into rehab.

Martin testified that Michael and Trina were “like a moral support,” were caring,

“liked people in general,” and were “good people.” Martin also testified that he

had known their dog since he was a puppy and was fond of him. Martin testified

that he “was disappointed, sad, [and] broken up” about the events at Mr. Cars.

{¶ 122} Much of Martin’s testimony was emotion-laden and irrelevant.

The state contends that the testimony was relevant to establishing that Martin was

not the killer. But that was clearly established by Martin’s testimony that he was

at Mr. Cars on April 14 from approximately 10:00 a.m. to 5:00 p.m. He identified

himself on surveillance video leaving the lot at 5:03 p.m.

{¶ 123} Evaluating Martin’s testimony in light of the Graham factors

demonstrates that his testimony was not likely to elicit an emotional response from

the jury. He was one of 34 witnesses that the state called to prove its case. There

is no indication in the record that Martin’s testimony caused physical

manifestations of emotion in the jury or audience.

3. Barbara Bonnes’s testimony

{¶ 124} Barbara Bonnes, Michael’s older sister, testified that on the night

of April 14, 2017, her uncle called to tell her that she needed to get to her parents’

house as soon as possible. She described the scene at her parents’ house: “I realized

that my brother was dead. My mom was hysterical, lying on the kitchen floor. My

father was in shock. And the children, I kept asking where the children were.” She

was “very concerned about the children listening to everything that was going on,”

so she “swooped them up * * * and took them home for * * * the rest of the

evening.”

{¶ 125} Bonnes said that Michael and Trina’s 13-year-old daughter had

brought up her last phone call with her mom on April 14, 2017, “many, many times”

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and “talks about it still all the time.” Bonnes also testified that “Albert [Martin]

and Trina and Michael were good friends.” She said that “[h]e stopped by * * * on

a daily basis, was very close with them, [and] would bring treats for the dog.”

{¶ 126} McAlpin objects to Bonnes’s testimony on relevance grounds,

contending that while Bonnes’s testimony is arguably relevant to the extent it

establishes a timeline for the events in the case, the impact of the deaths on the

surviving family members was in no way relevant to his guilt or innocence. He

also contends that Bonnes’s testimony about how Michael’s death affected their

family was inflammatory victim-impact testimony.

{¶ 127} Bonnes’s testimony was not relevant to establishing a timeline of

the night in question. She did not know when the daughter had last spoken to Trina,

and she had no knowledge of the crimes. None of Bonnes’s testimony made any

fact of consequence more or less probable than it would have been without her

testimony. See Evid.R. 401. The most emotional testimony from Bonnes was her

recounting of the family’s reaction to Michael’s death. Because this testimony

related only “the emotional impact of the crimes on the victim’s family,” Payne v.

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

victim-impact testimony and was not related to any issue of consequence.

However, Bonnes’s testimony was short and not overly emotional. See Graham,

164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, at ¶ 123, 126.

4. Andrew Keener’s testimony

{¶ 128} Keener, a participant in the robbery at Mr. Cars, testified against

McAlpin. During Keener’s testimony, the prosecutor showed him crime-scene

photographs of Michael and Trina and asked Keener what came to his mind when

he looked at the pictures. Keener testified that he was worried that what he saw in

the photographs would happen to him or someone in his family. But Keener was

one of the robbers, and his concerns were about himself and not the victims.

Keener’s testimony can also be viewed as relevant to his credibility. In other words,

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although his relationship to McAlpin caused him to fear for the safety of his own

family, he nevertheless was willing to testify against McAlpin at trial.

5. The challenged testimony did not prejudice McAlpin

{¶ 129} Although some of the challenged testimony was inadmissible

victim-impact evidence, McAlpin has not demonstrated that his substantial rights

were affected by the introduction of any of the challenged testimony. In view of

the overwhelming evidence of his guilt as established by DNA and forensic

evidence, surveillance video, and other testimony, we find that the challenged

evidence did not have an impact on the jury’s guilty verdict. And although this

court has recognized that there may be instances when the introduction of

inadmissible evidence during the trial phase of a capital proceeding carries over and

affects the fairness of proceedings during the mitigation phase, see State v.

Thompson, 33 Ohio St.3d 1, 15, 514 N.E.2d 407 (1987), we are not concerned that

this happened here. When considering a question of carry-over effect, the “type

and magnitude of any error” guides our analysis. See id. In this case, McAlpin did

not object to the error. Furthermore, the magnitude of the error was greatly

diminished by the trial court’s instructions to the jury. Specifically, during the

mitigation phase the trial court instructed the jury:

It is your sworn duty to accept these instructions, to apply

the law as it is given to you.

You are not permitted to change the law, or to apply your

own idea of what you think the law should be.

***

* * * Only the aggravating circumstances related to a given

count may be considered and weighed against the mitigating factors

in determining the penalty for that count.

***

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January Term, 2022

For purposes of this proceeding, only that evidence admitted

into the trial phase—admitted in the trial phase that is relevant to the

aggravating circumstances and to any of the mitigating factors is to

be considered by you.

You will also consider all of the evidence admitted during

the sentencing phase together with the defendant’s own statement.

***

When you consider the nature and circumstances of the

offense, you may consider them only if they have mitigating value.

You may not consider the nature and circumstances of the

crime as an aggravating circumstance.

You must not be influenced by any consideration of

sympathy or prejudice. It is your duty to carefully weigh the

evidence, to decide all disputed questions of fact, to apply the

instructions of the Court to your findings and to render your verdict

accordingly.

In fulfilling your duty, your efforts must be to arrive at a just

verdict. Consider all the evidence and make your finding with

intelligence and impartiality and without bias, sympathy or

prejudice.

The court had also said:

The aggravating circumstances that I go over for you are the

only things that can be weighed on the aggravation side of that scale.

You cannot weigh anything else as a reason to impose the

death penalty other than the aggravating circumstances.

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The law wants me to emphasize that to you at this point.

That is very important.

We find that these jury instructions abated the magnitude of the error by making

clear to the jurors that they could not consider the nature and circumstances of the

murders unless the nature and circumstances had mitigating value. Thus, we hold

that no plain error occurred in the admission of the challenged evidence. See

Crim.R. 52(B); State v. McNeill, 83 Ohio St.3d 438, 445-446, 700 N.E.2d 596

(1998).

{¶ 130} Therefore, we reject McAlpin’s sixth proposition of law. We

nevertheless reiterate that victim-impact testimony must be evaluated under the

Rules of Evidence and it is not admissible in a trial unless it is relevant to the

commission of the offense. See Graham, 164 Ohio St.3d 187, 2020-Ohio-6700,

172 N.E.3d 841, at ¶ 136. And even when the evidence is relevant, it still must be

excluded when its “probative value is substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R.

403(A). Although we find no basis for reversing in this case, we urge the state to

refrain from eliciting this type of irrelevant evidence in the first place. Additionally,

and more importantly, when the evidence is found to be relevant, we remind trial

courts to weigh the probative value of such evidence against the risk it poses of

“inflaming the passions of the jury,” Thompson, 33 Ohio St.3d at 15, 514 N.E.2d

407.

F. Introduction of unfairly prejudicial evidence

{¶ 131} In his seventh proposition of law, McAlpin argues that he was

denied a fair trial and a reliable hearing because the trial court admitted an

unredacted exhibit containing his Google search history, which included searches

for pornography and strip clubs. He also contends that the trial court erred when it

readmitted the exhibit during mitigation.

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January Term, 2022

{¶ 132} Jacob Kunkle, an FBI special agent trained in cellular-data analysis,

testified that he reviewed and analyzed 56 pages of search history for the Google

account associated with what appeared to be McAlpin’s email address. The search

history includes hundreds of entries over a ten-week period from April 1 to June

13, 2017. It contains both search inquiries and visits to certain websites, including

searches for information such as directions to certain locations, nearby restaurants,

and nearby pawn shops and salvage yards and how to do things like “properly hook

subwoofers up to a 1 channel amplifier” or tune-up certain automobiles. The

exhibit also contains searches for automobile parts, videos on youtube.com, Yahoo

mail, and sites such as Instagram, Facebook, Pinterest, and eBay.

{¶ 133} The exhibit also shows that McAlpin searched for and/or visited the

pornography website www.xnxx.com approximately ten times over ten weeks. He

also searched for another adults-only website, “nightline chat,” “gentlemen’s club,”

“strip clubs near me,” “exotic dancers near me,” and “4play lounge Euclid.”

{¶ 134} On April 14, 2017, before the murders, McAlpin searched for “easy

way to break a window,” “salvage yard near me,” and “pull apart near me.” On

April 15, shortly after the murders, McAlpin’s Google account logged searches for,

among other things, “all 2008 Salvage BMW for sale,” “2008 BMW 521 four

door,” and “can you switch a title into your name without the other parties

permission.” And McAlpin’s account shows a search on April 22 for “latest news

on the stolen bmw from car lot murder” and a visit to www.cleveland19.com to

view an article titled “cars stolen after dealership owners murdered.” McAlpin’s

search history shows more searches for news and information about the murders on

April 27 and May 9, 2017.

{¶ 135} The exhibit containing McAlpin’s Google search history was

admitted after the state rested their case during the trial phase, over McAlpin’s

objection. McAlpin did not object when the state introduced the document during

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Special Agent Kunkle’s testimony or when the trial court readmitted it for the

mitigation phase.

{¶ 136} Evidence must be relevant to be admissible, meaning that the

evidence must have a “tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Evid.R. 401. Relevant evidence is generally

admissible, Evid.R. 402, unless “its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury,”

Evid.R. 403(A). A trial court may exclude relevant evidence if “its probative value

is substantially outweighed by considerations of undue delay, or needless

presentation of cumulative evidence.” Evid.R. 403(B).

1. Trial phase

{¶ 137} McAlpin argues that specific pages of exhibit No. 1433 contain

“unfairly prejudicial, irrelevant, and inflammatory information.” He contends that

“[t]he evidence of his guilt was not overwhelming, and the danger too great [that]

the jury considered this prejudicial information during its deliberations.”

{¶ 138} Before we address prejudice, we must determine whether the

Google exhibit is relevant. McAlpin does not dispute that the exhibit contained

relevant and admissible information. Indeed, Special Agent Kunkle prepared a

report that specifically identifies the relevant searches contained in the exhibit. He

testified that McAlpin’s Google account was used on April 5, 2017, to search for

information about firearms and to compare different calibers of firearms. He

additionally testified about McAlpin’s April 14 and 15 searches about how to

salvage a stolen vehicle and McAlpin’s April 22, April 27, and May 9 searches for

the latest news on the car lot murders.

{¶ 139} These Google searches constituted relevant, circumstantial

evidence of McAlpin’s intent to steal cars and resell them and, more specifically,

of his intent to use a firearm during the robbery. See State v. Sutherland, 2021-

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Ohio-2433, 173 N.E.3d 942, ¶ 21, 27 (2d Dist.) (holding that Google searches were

probative and relevant circumstantial evidence of guilt).

{¶ 140} But the Google exhibit also contains many searches and other

internet activity that bear no relation to the murders or to the other crimes with

which McAlpin was charged. Nevertheless, the handful of references to irrelevant,

explicit, or pornographic websites were not mentioned during Special Agent

Kunkle’s testimony and were unlikely to influence the jury. In light of the

overwhelming evidence of McAlpin’s guilt, we are not convinced that the jury’s

decision to convict him was affected by evidence that he viewed or searched for

pornographic or adults-only websites.

2. Mitigation phase

{¶ 141} Because McAlpin failed to object to the readmission of exhibit No.

1433 during the mitigation phase, we are again limited to plain-error review. State

v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 132.

{¶ 142} R.C. 2929.03(D)(1) “provides in part that during the penalty stage,

the court and the trial jury shall consider ‘* * * any evidence raised at trial that is

relevant to the aggravating circumstances the offender was found guilty of

committing’ * * * [and] ‘shall hear testimony and other evidence that is relevant to

the nature and circumstances of the aggravating circumstances the offender was

found guilty of committing.’ ” (Emphasis sic.) State v. DePew, 38 Ohio St.3d 275,

282-283, 528 N.E.2d 542 (1988), quoting R.C. 2929.03(D)(1). In DePew, we also

observed that not only is repetition of trial-phase evidence for the mitigation

hearing required by the statute but it is also logical given “the prosecution’s

obligation to demonstrate, by proof beyond a reasonable doubt, that the aggravating

circumstances the defendant was found guilty of committing are sufficient to

outweigh the factors in mitigation.” Id. at 283.

{¶ 143} Although exhibit No. 1433 does contain many irrelevant internet

searches connected to McAlpin’s Google account, the majority of the irrelevant

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material was noninflammatory, with the potential exception of the few adult-related

searches described above. Furthermore, the searches that were relevant had high

probative value because they supported the capital specification that McAlpin

committed the murder during the course of an aggravated robbery as the principal

offender. Several of the searches were also probative of McAlpin’s identity as the

murderer.

{¶ 144} We thus conclude that McAlpin cannot establish plain error with

respect to the readmission of exhibit No. 1433 during the mitigation phase.

Therefore, we reject McAlpin’s seventh proposition of law.

G. Confrontation Clause violation

{¶ 145} In proposition of law No. VIII, McAlpin contends that the trial

court improperly restricted his cross-examination of FBI Special Agent Brian

Young. McAlpin says that he was “precluded * * * from present[ing] the jury with

a reasonable explanation as to why his cell phone was pinging of[f] an area cell

tower” and thereby was deprived of “his ability to examine the state witness as to a

material component of the state’s case.”

{¶ 146} Special Agent Young testified about the forensic cellular-phone

analysis that he conducted for this case. During their investigation, Young and

Detective Echols requested a “cell tower dump,” which provides information for

any cell phone using a specific cell tower at a particular time and in a particular

area. The cell-tower dump was requested for April 14, 2017, from about 5:15 to

7:00 p.m. in the area of Mr. Cars.

{¶ 147} Special Agent Young testified that McAlpin’s number called Mr.

Cars at 4:09 p.m. and called Keener’s number 13 minutes later. The records also

showed 13 additional calls between McAlpin’s and Keener’s phones before 6:47

p.m. The last call occurred a couple of minutes before the vehicles were driven off

the Mr. Cars lot.

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{¶ 148} According to Young, McAlpin’s and Keener’s phones used the

same cell tower from approximately 5:15 to 6:45 p.m. The tower was located just

a little bit northeast of Mr. Cars, off East 185th Street.

{¶ 149} On cross-examination, Young agreed that there is no way to know

from records who is using a cell phone when calls are made. Young also stated that

when a cell phone pings off a particular tower, the person using that phone is not

necessarily at the tower’s location. But it does mean that a person using that phone

is “within th[e] radius that that tower covers.”

{¶ 150} McAlpin then asked Special Agent Young whether he knew that

McAlpin lived in the area of East 185th Street. The trial court sustained the state’s

objection to this question. McAlpin started to ask again whether Young was “aware

that Joseph McAlpin stayed in the vicinity,” but before Young answered, the trial

court sustained the state’s second objection.

{¶ 151} A defendant’s right to cross-examine the state’s witnesses is

guaranteed by both the Confrontation Clause of the Sixth Amendment to the United

States Constitution and Article I, Section 10 of the Ohio Constitution. Douglas v.

Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); State v. Self,

56 Ohio St.3d 73, 78, 564 N.E.2d 446 (1990). The Sixth Amendment’s

Confrontation Clause precludes a trial court from placing “improper restrictions”

on defense cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct.

989, 94 L.Ed.2d 40 (1987). However, the Confrontation Clause “guarantees an

opportunity for effective cross-examination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense might wish.” (Emphasis sic.)

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). A

trial court is free to “impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674

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(1986). The scope of cross-examination lies within the sound discretion of the trial

court, viewed in relation to the particular facts of the case. State v. Slagle, 65 Ohio

St.3d 597, 605, 605 N.E.2d 916 (1992).

{¶ 152} McAlpin’s argument that he was denied his right to confront

Special Agent Young is unpersuasive. To establish a Confrontation Clause

violation, McAlpin must show that he was “prohibited from engaging in otherwise

appropriate cross-examination.” Van Arsdall at 680.

{¶ 153} On cross-examination, McAlpin sought to have Young testify that

the call-detail records and cell-tower information were consistent with McAlpin’s

being at home on the night of the murders. He asked, “Were you aware that Joseph

McAlpin lived * * * within a quarter mile of the closest tower [to Mr. Cars]?” The

record does not explain why the state objected or why the court sustained the

objection. However, the court may have sustained it for lack of foundation as

McAlpin had not established that Young knew where he lived or had been involved

in the search of his home. Additionally, the form of the question could be viewed

as an improper attempt by McAlpin to provide his own testimony to the jury

regarding where he lived.

{¶ 154} Because legitimate, legally supportable reasons exist for sustaining

the state’s objection, McAlpin has not demonstrated that the trial court erred.

Therefore, we reject this proposition of law.

H. Prosecutorial misconduct in trial phase

{¶ 155} In proposition of law No. IX, McAlpin argues that prosecutorial

misconduct during the trial-phase closing arguments denied him a fair trial.

{¶ 156} We review allegations of prosecutorial misconduct during closing

arguments by asking “whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant.” State v. Smith, 14 Ohio

St.3d 13, 14, 470 N.E.2d 883 (1984). Although “criminal trials cannot be squeezed

dry of all feeling,” State v. Keenan, 66 Ohio St.3d 402, 409, 613 N.E.2d 203 (1993),

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“excessively emotional arguments tending to inflame the jury’s sensibilities” are

improper, State v. Tibbetts, 92 Ohio St.3d 146, 168, 749 N.E.2d 226 (2001).

However, “[t]he touchstone of the analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’ ” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-

6235, 818 N.E.2d 229, ¶ 155, quoting Smith v. Phillips, 455 U.S. 209, 219, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶ 157} McAlpin failed to object to the various aspects of the prosecution’s

closing arguments and has therefore forfeited all but plain-error review of his

claims. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 21.

1. “Victim character” evidence

{¶ 158} McAlpin first focuses on the prosecutor’s evocation of Martin’s

testimony that included improper victim-impact and character-evidence testimony.

Much of Martin’s testimony concerned the good character of Trina and Michael,

their hardworking nature, how they cared for him and encouraged him to get back

into rehab, and how close Martin felt to Michael and Trina.

{¶ 159} During closing argument, the prosecutor referred to Martin’s

testimony as follows:

5:03 p.m., Albert. You can say what you want about Albert.

Albert lost two people that he loved dearly. Albert has his own

problems. Albert’s not a killer. That’s why Albert was in here. You

got to see Albert. Brought a bone for Axel the next day and left it

at the front. You can evaluate Albert.

McAlpin did not object to these comments and has forfeited this claim absent plain

error. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 24.

{¶ 160} McAlpin maintains that these comments were repeated by the

prosecution “once again to evoke emotion from the jury.” The state contends that

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the statements were proper because Martin’s testimony was relevant to proving that

Martin did not commit the crimes. But as explained above, much of Martin’s

testimony was not relevant to the state’s alleged purpose of eliminating Martin as a

suspect. Even so, the prosecutor’s comments repeating Martin’s improper

testimony were isolated remarks limited to whether Martin should be considered a

suspect, and they were not flagrantly emotional or intended to mislead the jury. See

Tibbetts, 92 Ohio St.3d at 168, 749 N.E.2d 226.

{¶ 161} Accordingly, no plain error occurred with respect to the

prosecutor’s commentary on Martin’s testimony.

2. Alleged emotionally charged argument

a. Why the daughter was not called as a witness

{¶ 162} McAlpin contends that the prosecutor’s rhetoric during closing

arguments “improperly aligned the state with the role of a parent, appealing to the

paternalistic instinct of the jurors and calling on them to protect and sympathize

with” the victims’ teenage daughter.

{¶ 163} During closing argument, the prosecutor referred to the state’s

decision not to call the daughter as a witness at trial. The state also brought up

Bonnes’s testimony “that [the daughter] told [Bonnes] that she heard Albert in the

background” the last time she spoke to Trina. Later, the prosecutor repeated that at

“5:28 [p.m.], with the defendant already in [Mr. Cars], [a] 13-year-old girl talks to

her parents for the last time, not knowing that it was going to be the last time.” The

prosecutor continued:

Sometimes you have to make a decision as a professional, as

a human being, as a father, on what you’re going to put a child

through. I’m not putting that child through this.

We allowed the evidence of what time [the daughter] thinks

she talked to her parents to come in because it was the right thing to

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do, because that’s what the facts as she believed them to be were.

We presented it to you. Put on witnesses that had no business

testifying about what she said. But we put it on because it was the

right thing to do.

It wasn’t the right thing to do to traipse her into this

courtroom and have her face the man that’s accused of killing her

parents. If you want to hold that against somebody, hold it against

me. But I wasn’t going to do it.

She believed that she talked to her parents at 7:00. Well,

folks, there’s no calls at 7:00. She believed that Albert was there

the last time she talked to her parents. The calls at 8:30, folks, are

five seconds and seven seconds, and they’re back to back.

Use your reason, use your common sense, and you tell me

why a kid is calling her parents back to back. Because they’re not

answering the phone.

***

It’s not just the records, folks. It’s not just the fact that we

know that the things that a 13-year-old child who just found out that

her mother and father were executed and the things that she’s going

to remember in the haze and everything else. It’s what the evidence

shows.

Because if you believe that she talked to her parents at 8:30,

you also believe that her parents allowed two individuals to come

take a BMW and a Mercedes without anything else, without paying

for them, without leaving anything. By the way, without ever

coming back.

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{¶ 164} McAlpin had cross-examined witnesses regarding the time that the

daughter last spoke to her parents. Accordingly, we conclude that it was not

improper for the prosecutor to refer to Bonnes’s testimony that the daughter said

that she heard Martin in the background during the telephone call.

{¶ 165} However, the prosecutor’s comments concerning why he was

unwilling to place the daughter on the witness stand were improper. Equating the

state’s decision whether to call the daughter as a witness with a moral judgment

was improper to the extent that it played on the jury’s sympathies by implying that

the prosecutor had made the decision not to subpoena her from the perspective of a

parent. See State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818,

¶ 87.

{¶ 166} During its rebuttal argument, the prosecutor returned to the issue of

the daughter’s absent testimony by noting:

And he wants to tell you in the next breath you should have

wanted to hear from [her], this 13-year-old daughter who lost her

parents tragically, drastically, horrifically at his hands.

Yet, we’re supposed to put her on the stand? Absolutely not.

Not only does [my co-counsel] take responsibility for it, so do I. I

am not putting a little girl through that. For her to be questioned by

him? That’s unimaginable, ladies and gentlemen.

***

Because she kept getting a voicemail, wondering, Mommy,

where are you all? It’s Good Friday. I’m hungry. You told me that

you would bring me a fish dinner home for me and my brother * * *.

{¶ 167} Because the daughter did not testify, there was no basis for the

prosecutor’s insinuation that he knew what she was thinking on April 14, 2017. His

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suggestion that on April 14 the daughter was wondering where her parents were

and was hungry because they had not brought her food improperly appealed to the

jurors’ emotions and sympathy.

{¶ 168} However, “[a]n improper comment does not affect a substantial

right of the accused if it is clear beyond a reasonable doubt that the jury would have

found the defendant guilty even without the improper comments.” State v. Treesh,

90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001). The evidence of McAlpin’s guilt

was substantial. And while some of the prosecutor’s arguments were excessively

emotional and not based on the evidence, “[t]he conduct of a prosecuting attorney

during trial cannot be made a ground of error unless the conduct deprives [the]

defendant of a fair trial.” State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d

394 (1987). Thus, this claim lacks merit.

b. Asking jurors to consider what victims experienced

{¶ 169} McAlpin also argues that the prosecutor improperly aroused “fear

in the jury, [by] asking the jury to consider what the victims experienced and felt

in their final moments.”

{¶ 170} First, McAlpin claims that the prosecutor improperly argued that

he “was just thinking about [Michael and Trina’s] final moments and what fear,

what could it be, whether it was Michael first or Trina first. Not only fear for

yourself, but the absolute devastation of knowing that your loved one, your partner,

is dead.”

{¶ 171} We have “said that it is improper for prosecutors to comment on

what the victim was thinking when he or she died, as it ‘invites the jury to speculate

on facts not in evidence.’ ” State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-

4079, 157 N.E.3d 716, ¶ 116, quoting State v. Wogenstahl, 75 Ohio St.3d 344, 357,

662 N.E.2d 311 (1996). The prosecutor’s argument here was improper because

there was no evidence of what the victims were thinking at or before the time of

their deaths.

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{¶ 172} Second, McAlpin asserts that the prosecutor used graphic imagery

to improperly speculate about what Zaczkowski felt when he discovered Michael’s

body. Referring to one of the surveillance videos, the prosecutor commented that

“the video tells some of the story, but it doesn’t describe [Zaczkowski’s] pain. * * *

In what condition was he in discovering his mother on the floor with a gunshot

wound to her head. What he thought was his mother was actually Michael.” This

comment invited the jury to imagine what Zaczkowski felt upon entering Mr. Cars,

which is both irrelevant and improper because there was no evidence about what

Zaczkowski was thinking or feeling that night. The prosecutor also improperly

suggested that Zaczkowski saw his mother’s body when he went inside the

building, before reminding the jury that it was actually Michael’s. This type of

tactic is improper because “[a] closing argument that goes beyond the record in

order to arouse an emotional response in the jury may be prejudicial.” Kirkland,

140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, at ¶ 87.

c. Arguing facts not in evidence

{¶ 173} McAlpin contends that, compounding the error, the prosecutor

“improperly intimated to the jurors that McAlpin posed a threat to Keener’s entire

family, a fact not in evidence.” The prosecutor returned to fear again when arguing

why Keener’s testimony was believable:

You want to believe that [Keener] was afraid? You want to

know what he was afraid of, the pictures I showed him? He was

afraid of this. He was afraid of what happened to the two people

that were inside Mr. Cars.

This is what he was afraid of. Because when he saw these

pictures, he didn’t see Michael and Trina. He saw his mother and

his brothers and his sisters and his nieces and his nephews. You

want to know what fear is like? Think of that.

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This was not an improper comment, because the prosecutor was not implying that

McAlpin had threatened anyone. Rather, the reference to Keener’s family reflected

what could be drawn from Keener’s testimony: that Keener was afraid of McAlpin

because of what McAlpin had done to Trina and Michael.

{¶ 174} McAlpin also argues that the prosecutor “interjected his own

perspective,” editorialized, and mixed evidence with opinion. In support, McAlpin

points to the following statement made during the state’s closing argument:

6:31, that’s the end of that timeframe, folks, where we don’t

see any action. We don’t see anything. Until we see somebody

calmly and coolly, not rushed, taking his time, walking up to a BMW

and putting license plates on the back of that car. Like he belongs

there.

Like there’s nothing to worry about. Knowing that two

people had gunshot wounds to their head in the building right behind

him. No cares in the world. Not worried that he’s going to get

caught.

The state was describing a portion of the surveillance video in which no person is

seen entering or leaving the building between 5:24 p.m. and 6:31 p.m. This was

not improper. The surveillance videos show that a person walked to the BMW and

put a license plate on it. The prosecutor was entitled to make a fair comment and

suggest a reasonable inference from the evidence.

3. Commenting on McAlpin’s decision not to testify

{¶ 175} McAlpin further maintains that the prosecutor’s trial-phase rebuttal

closing argument improperly commented on McAlpin’s decision not to testify as

follows: “I guess when he’s testifying and he’s cross-examining, he might as well

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have been testifying * * *.” The state contends that in the context of the whole

trial, this was not an improper comment on McAlpin’s decision not to testify.

{¶ 176} In context, this statement was not improper; by making this

argument the state was pointing out that McAlpin had attempted to get his version

of events in front of the jury without testifying, through the use of leading questions

on cross-examination. This was a proper comment for the state’s closing argument.

We have cautioned that “isolated comments by a prosecutor are not to be taken out

of context and given their most damaging meaning.” State v. Noling, 98 Ohio St.3d

44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 94, citing Donnelly v. DeChristoforo, 416

U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (“a court should not lightly

infer that a prosecutor intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through lengthy exhortation, will draw that meaning

from the plethora of less damaging interpretations”). It was fair for the state to

argue that McAlpin was trying to testify directly to the jury under the guise of cross-

examination. This did not violate McAlpin’s Fifth Amendment rights, so we reject

this claim.

4. Denigrating comments

{¶ 177} McAlpin challenges other arguments by the prosecutor as mocking

him and denigrating the defense. He specifically challenges eight comments by the

prosecutor.

{¶ 178} For example, McAlpin contends that the prosecutor was

disparaging the defense when, during trial-phase closing arguments, the prosecutor

questioned whether McAlpin’s defense was “reasonable.” Specifically, the

prosecutor argued:

Is it reasonable to expect that [McAlpin’s] DNA flew all over the

place, that it transferred from spot to spot? It just happened to be in

a spot where two people were executed? It happened to be next to

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the head of a woman that was killed, in the back pockets of a dead

man, into a car that was stolen?

It’s not a reasonable expectation. It’s not likely. It’s

ridiculous. Because not only is it ridiculous to believe that. You

would have to put aside all the other evidence that points to him.

{¶ 179} McAlpin also challenges the following argument made during the

state’s trial-phase rebuttal:

[A]nd he’s cross-examining Laura Evans. He said isn’t it possible

if I gave this card to [standby counsel] and he puts it in his pocket

and your DNA could be in there? Really?

It’s possible that I may wake up tomorrow and have a

physical or medical miracle and all of a sudden, I’m 6’4”. Really?

Really? Who all believes that?

At almost 50 years old, overnight. Anything is possible.

That’s what I heard from him. Anything is possible. * * * That

defies logic. It defies reason and it absolutely defies your common

sense.

{¶ 180} “Prosecutors are entitled to latitude as to what the evidence has

shown and what inferences can be drawn from the evidence.” State v. Diar, 120

Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 213. In these comments, the

prosecutor was anticipating McAlpin’s closing argument that his DNA could have

been transferred secondarily to objects inside Mr. Cars, like the modem. Because

McAlpin raised the issue of secondary DNA transfer during trial, it was not

improper for the prosecutor to comment on it during closing. Prosecutors are

entitled to state their opinion during closing arguments, as long as it is based on the

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evidence at trial. State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d

362, ¶ 154.

{¶ 181} Despite McAlpin’s argument, the prosecutor’s statement during

closing—“You’re all smarter than that, folks. It’s not reasonable. It’s not likely.

It’s all fraudulent”—was also not improper. The prosecutor’s statement

represented fair commentary on McAlpin’s unsupported, secondary-transfer

defense during the trial. Moreover, even if the statement had been improper, the

strength of the state’s evidence showing that McAlpin planned and executed the

Mr. Cars robbery and murders eviscerates any notion that there could have been a

demonstrable prejudicial effect on the jurors.

{¶ 182} The prosecutor’s use of the word “fraudulent” insinuated that

McAlpin’s defense was dishonest. While it is improper for a prosecutor to suggest

that the defense has “fashion[ed] lies to be presented in court,” Smith, 14 Ohio St.3d

at 14, 470 N.E.2d 883, these comments were primarily directed at the evidence and

not at McAlpin. No plain error occurred. See Diar, 120 Ohio St.3d 460, 2008-

Ohio-6266, 900 N.E.2d 565, at ¶ 221.

{¶ 183} In rebuttal, the prosecutor made the following comments:

When you look at that flag, nobody has to tell you how many stripes

are on that flag, or how many stars exist.

He can come in here and tell you that’s not the American

flag. That’s just a replica. But would that be based on your reason

and common sense, * * * and you believe that nonsense that that

flag is something else other than the United States flag?

This is what he’s trying to sell to all of you. Well, justice is

not for sale, ladies and gentlemen. * * *

* * * Lies, lies, lies he tell [sic] you about Keener. * * *

***

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And he wants to argue about testing the inside pockets as if

he’s an expert. As if he works at the crime lab.

You see, ladies and gentlemen, what I’ve learned in

examining this evidence, and hopefully you did, too, that some

people think they [are] smarter than everybody.

Some people think that they can tell anybody anything they

want. And all they’ve got to do is get one or two people to believe

them, and that’s it.

{¶ 184} These comments were not improper because they rebutted

McAlpin’s closing, during which he insisted that he was innocent, that Keener was

a liar, that the state’s evidence was “nothing but typed up notations,” and that the

state’s witnesses contradicted themselves.

{¶ 185} The prosecutor was entitled to respond to McAlpin’s closing

argument by suggesting that McAlpin had asked the jurors to believe something

that they knew was untrue. Moreover, McAlpin had argued, “I have not deceived

not one time outside of my opening statement. * * * I’ve been honest. I’ve been

open, and I have hid nothing at all.” Thus, McAlpin injected the issue of his honesty

into the case and the prosecutor was entitled to respond by pointing out that the jury

did not have to believe his unsupported assertions.

{¶ 186} McAlpin maintains that the prosecutor’s argument—“And he

wants to tell you in the next breath you should have wanted to hear from * * * this

13-year-old daughter who lost her parents tragically, drastically, horrifically at his

hands”—improperly appealed to the jury’s emotions. This comment was in

response to McAlpin’s argument that the state was hiding something by not calling

the daughter as a witness. Because we have held that “both parties are entitled to

wide latitude during closing arguments,” this was within the permissible scope of

closing argument. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).

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Moreover, we have held that “a prosecutor may denounce the defendant’s

wrongdoing.” State v. Keene, 81 Ohio St.3d 646, 666, 693 N.E.2d 246 (1998).

5. Cumulative misconduct

{¶ 187} McAlpin asks this court to cumulate all of the alleged misconduct

and find that, as a whole, it “so infected the trial with unfairness as to make the

resulting conviction a denial of due process,” Donnelly, 416 U.S. at 643, 94 S.Ct.

1868, 40 L.Ed.2d 431; see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct.

2464, 91 L.Ed.2d 144 (1986).

{¶ 188} McAlpin was not deprived of a fair trial due to prosecutorial

misconduct. The evidence against McAlpin was overwhelming, and there is little

chance that absent the improper comments, the result of his trial would have been

different. And any potential prejudice was mitigated by the trial court’s instruction

to the jury that closing arguments are not evidence. State v. Jones, 91 Ohio St.3d

at 353, 744 N.E.2d 1163. Therefore, we reject McAlpin’s ninth proposition of law.

I. Merger of aggravating circumstances

{¶ 189} In his tenth proposition of law, McAlpin contends that the trial

court erroneously failed to merge the capital specifications found by the jury. The

state responds that there was a separate animus for each of the three capital

specifications the jury considered during sentencing. Because McAlpin did not

raise this objection at trial, he cannot prevail on this claim absent a finding of plain

error. Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, at ¶ 21.

{¶ 190} The jury convicted McAlpin of all counts and specifications in the

indictment. Counts 1 through 4 charged McAlpin with aggravated murder. The

state elected to proceed to sentencing on Counts 1 and 2, so the court merged Counts

3 and 4 with the first two counts. Counts 1 and 2 each carried three capital

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specifications:2 (1) a course of conduct involving the purposeful killing of two or

more individuals, R.C. 2929.04(A)(5), (2) the commission of aggravated murder

during the commission of an aggravated burglary, R.C. 2929.04(A)(7), and (3) the

commission of aggravated murder during the commission of an aggravated

robbery, R.C. 2929.04(A)(7).

{¶ 191} McAlpin contends that both felony-murder specifications should

have been merged with the course-of-conduct specification for purposes of the trial

court’s sentencing findings. Merger of capital specifications is required “where

two or more aggravating circumstances arise from the same act or indivisible course

of conduct.” State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph

five of the syllabus. However, we have “repeatedly held that ‘specifications for

multiple-murder and for felony-murder represent distinct and separate aggravating

circumstances,’ ” are “not duplicative,” and “do not merge.” State v. Perez, 124

Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 175, quoting Smith, 80 Ohio

St.3d at 116, 684 N.E.2d 668.

{¶ 192} Yet McAlpin argues that the felony-murder and course-of-conduct

specifications should be merged if the defendant’s “motive and intent [are] the same

for both acts.” He cites Tibbetts, 92 Ohio St.3d at 171-172, 749 N.E.2d 226, in

support of his argument.

{¶ 193} However, Tibbetts does not state, as McAlpin suggests, that

irrespective of the prior precedent, the specifications under R.C. 2929.04(A)(5) and

(A)(7) should be merged when the defendant’s motive and intent are the same for

both acts. We conclude that the course-of-conduct specification is not subject to

merger with the felony-murder specifications for aggravated burglary and

aggravated robbery.

2. The fourth capital specification for committing aggravated murder while under detention was

dismissed by the state on March 5, 2019.

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{¶ 194} McAlpin argues, in the alternative, that the trial court should have

merged the two felony-murder specifications. To determine whether the

aggravated-burglary and aggravated-robbery aggravating circumstances were a

single act requiring merger, we apply a three-part test. State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31; State v. Jackson, 149 Ohio St.3d 55,

2016-Ohio-5488, 73 N.E.3d 414, ¶ 128-129 (applying Ruff test to merger of

aggravating circumstances). An affirmative answer to any of the following three

questions makes merger needless: “(1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed

with separate animus or motivation?” Ruff at ¶ 31.

{¶ 195} We recently considered whether felony-murder aggravating

circumstances for aggravated robbery and aggravated burglary should have been

merged for sentencing. See Jackson at ¶ 128-129. Jackson was convicted of two

counts of aggravated murder, each with two capital specifications: murder during

an aggravated burglary and murder during an aggravated robbery. On appeal,

Jackson argued that the felony-murder aggravating circumstances should have been

merged. Applying Ruff, we held that the specifications were not subject to merger,

because “[t]he burglary was complete when Jackson entered [the victim’s]

residence with the intent to commit murder, theft, or kidnapping * * * [and] Jackson

committed aggravated robbery when he stole [the victim’s] car after murdering

him.” Id. at ¶ 129.

{¶ 196} Contrary to McAlpin’s argument, the same result is required here.

The evidence demonstrates that McAlpin committed the aggravated burglary and

aggravated robbery with separate animuses. When McAlpin entered Mr. Cars with

the intent to commit murder, theft, or kidnapping, the aggravated burglary was

complete. He completed the aggravated robbery when he stole the cars and cash

after the murders. See State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 128.

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{¶ 197} Accordingly, we reject McAlpin’s tenth proposition of law.

J. Readmission of exhibits during mitigation

{¶ 198} In support of his eleventh proposition of law, McAlpin contends

that it was prejudicial error to admit certain trial-phase evidence during the

mitigation phase. McAlpin did not raise this objection at trial, so he has forfeited

this claim absent plain error. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27,

759 N.E.2d 1240 (2002).

{¶ 199} McAlpin contends that the following categories of exhibits should

not have been readmitted: crime-scene photos, autopsy photos and reports, photos

of Trina in a body bag, photos of the victims’ clothing, trace-evidence reports,

bullet fragments, bullet-fragment photos and lab reports, body-cam videos, and the

recording of the 9-1-1 call. McAlpin also contends that exhibit No. 1433, which

contained the searches and sites visited as logged by McAlpin’s Google account,

was irrelevant and highly prejudicial.

{¶ 200} Citing our decision in Ketterer, the state contends that it is not per

se error for the trial court to readmit all of the trial-phase evidence. See 111 Ohio

St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 132-133. However, Ketterer does

not have the broad meaning that the state suggests. Ketterer tried his aggravated-

murder case to a three-judge panel. That fact was central to our holding that no

plain error occurred when the panel allowed the state to reintroduce at the

mitigation phase all the trial-phase evidence. See id., quoting State v. Davis, 63

Ohio St.3d 44, 48, 584 N.E.2d 1192 (1992) (“A panel of judges is presumed to

‘consider only relevant, competent and admissible evidence in its deliberations’ ”).

{¶ 201} It is the trial court’s duty to determine which trial-phase exhibits

are relevant to the aggravating circumstances for purposes of the mitigation phase.

State v. Lindsey, 87 Ohio St.3d 479, 484, 721 N.E.2d 995 (2000). As in McAlpin’s

case, the trial court in Lindsey readmitted all trial-phase evidence for the jury to

consider during the mitigation phase. We held that “[w]hile R.C. 2929.03(D)(1)

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permits the reintroduction of much or all of the guilt-phase evidence during the

penalty phase, it does not relieve the trial court of its duty to determine the evidence

relevant for consideration.” Lindsey at 484. In Lindsey, the error arose not when

the trial court admitted the trial-phase evidence in toto for the mitigation phase but

when the court instructed the jury to consider all the evidence, including exhibits

presented in the first phase of the trial, that the jury deemed relevant. Id. at 485.

The court’s instruction “improperly delegated to the jury the court’s duty to

determine the evidence relevant to the penalty phase.” Id.

{¶ 202} However, we ultimately determined that the readmission of all the

trial-phase evidence was not reversible error. We concluded that the evidence did

not prejudice the outcome of the trial, because it was “relevant to the aggravated

robbery, the aggravating circumstance of which [Lindsey] was found guilty, as [it]

demonstrated the element of serious physical harm to the victim.” Id.

{¶ 203} Unlike in Lindsey, there is nothing in the record before us that

definitively suggests that the trial court abdicated its duty to determine what trial-

phase evidence was relevant to the aggravating circumstances specified in the

indictment of which McAlpin was found guilty. The record does not contain a jury

instruction similar to the erroneous instruction in Lindsey when the trial court

impermissibly delegated to the jury the duty to determine what evidence was

relevant. Thus, it is possible that when faced with the state’s motion to readmit all

the exhibits and McAlpin’s negative response to the court’s question whether he

had any objections to the motion, the trial court determined that all of the evidence

was relevant and admissible and on that basis granted the motion. Nothing prevents

a trial court from readmitting all trial-phase evidence if that evidence is relevant.

See id. at 484. Accordingly, it cannot be said that the trial court erred simply by

readmitting all the evidence for the mitigation phase.

{¶ 204} Shifting our focus to whether the trial court erred in admitting any

particular evidence and, if so, whether any error prejudiced McAlpin’s substantial

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rights, McAlpin posits that the Google-search exhibit (see proposition of law No.

VII), the medical examiner’s exhibits, and the crime-scene photographs were

particularly prejudicial. He also asserts that the crime-scene photos of the victims

and the dog were inadmissible because of the danger that the jury would “inflate

the weight” of the aggravating factors.

{¶ 205} As we explained in our discussion of McAlpin’s seventh

proposition of law, the Google-search exhibit contained some irrelevant

information. However, the parts of the exhibit that were irrelevant were not likely

to arouse the jurors’ emotions. We find no prejudicial error in the trial court’s

decision to readmit the Google-search exhibit for the mitigation phase.

{¶ 206} Along with the two autopsy reports, the medical examiner

submitted over 60 autopsy photographs in total. These depict the victims’ bodies,

close-ups of gunshot wounds, close-ups of internal organs, including brain and

shoulder areas, other injuries, and the bullet fragments recovered from each victim.

These photos were germane to the aggravated-robbery aggravating circumstance

because they depict the seriousness of Michael’s and Trina’s injuries and confirm

that a firearm was used in the murders. But some of the photos were cumulative

and gruesome, and the trial court should not have readmitted them for the mitigation

phase. The trial court also should not have allowed the picture of the dead dog to

be readmitted. This photo had no relevance to any of the aggravating

circumstances—a fact that should have been obvious to both the prosecution and

the trial court. We have recently warned trial courts about allowing the introduction

of such evidence:

[W]e caution trial courts to closely scrutinize the crime-scene and

autopsy photos that are offered as exhibits in murder trials. The

admission of gruesome photos exposes the jurors to horrific images,

and when those photographs go to an element of the offense that is

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clearly proven by other evidence, they serve no useful purpose

whatsoever. Instead, such exposure only serves to inflame the

passions of jurors and risks subjecting them to harm. A few crime-

scene photos showing the body along with the coroner’s testimony

will often suffice.

State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 257. We

remind trial courts of their duties to determine which items of trial-phase evidence

are germane to the aggravating circumstances, Lindsey, 87 Ohio St.3d at 484-485,

721 N.E.2d 995, and to closely scrutinize the admissibility of gruesome

photographs and evidence in accordance with our cautionary statement in Ford.

Similarly, we also urge the state to refrain from attempting to introduce irrelevant

or unnecessary, gruesome, or otherwise inflammatory photographs during the trial

or mitigation phase of proceedings.

{¶ 207} However, under the circumstances of this case, including the fact

that McAlpin failed to object to the readmission of the evidence in the mitigation

phase, we do not find reversible error. As explained in our analysis of McAlpin’s

sixth proposition of law, the trial court explicitly instructed the jury on what it could

and could not consider as aggravating circumstances and also instructed the jury

that it must not consider the nature and circumstances of the murders unless they

were mitigating. We thus find it highly unlikely that the readmission of any of the

trial-phase exhibits affected the outcome of McAlpin’s sentencing.

{¶ 208} For the foregoing reasons, we reject McAlpin’s eleventh

proposition of law.

K. Unfair mitigation hearing

{¶ 209} In support of proposition of law No. XII, McAlpin contends that

the trial court made comments to the jury about why the mitigation phase was

delayed and identified mitigation evidence that McAlpin did not present. He argues

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that the court’s comments deprived him of a fair mitigation hearing. McAlpin did

not object to the statements and has therefore forfeited this claim absent plain error.

Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at

¶ 21.

1. Relevant law

{¶ 210} In presiding over a trial, “the judge must be cognizant of the effect

of his comments upon the jury.” State v. Wade, 53 Ohio St.2d 182, 187, 373 N.E.2d

1244 (1978), vacated on other grounds, Wade v. Ohio, 438 U.S. 911, 98 S.Ct. 3138,

57 L.Ed.2d 1157 (1978). A judge must remain impartial and refrain from making

comments that could influence a jury to the prejudice of the defendant. State v.

Boyd, 63 Ohio App.3d 790, 794, 580 N.E.2d 443 (8th Dist.1989).

{¶ 211} When reviewing a claim that a trial judge made improper remarks

that prejudiced the defendant, we apply the following rules:

(1) The burden of proof is placed upon the defendant to demonstrate

prejudice, (2) it is presumed that the trial judge is in the best position

to decide when a breach is committed and what corrective measures

are called for, (3) the remarks are to be considered in light of the

circumstances under which they are made, [with] (4) consideration

[] given to their possible effect upon the jury, and (5) to their

possible impairment of the effectiveness of counsel.

Wade at 188.

2. Relevant facts

{¶ 212} On April 18, 2019, between the trial phase and mitigation phase,

the trial court referred McAlpin to the probation department for a presentence

investigation and to the “court psychiatric clinic * * * in accordance with [the]

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provisions of [R.C.] 2947.06(B) reports for the purpose of determining the

disposition of a case: psychiatric recommendations regarding disposition.”

{¶ 213} On April 22, 2019, the court brought the jury back and said:

Mr. McAlpin has requested the preparation of two reports. A

Presentence report as well as a Court Psychiatric evaluation.

And because of the nature of the case, and just the number

of reports that are done, we can’t have those done in time for this

today.

I’d hoped we could, but we could not do that. It was only

after I leaned on Dr. Livingston that she moved it up, and the earliest

she can get us the report is May the 10th. All right?

So, I’ve got to impose on your lives again, and I ask you to

come back here on May 13th, on Monday. Then we’ll hear the

mitigation.

{¶ 214} On May 13, 2019, before bringing the jury in, the court spoke to

the parties in chambers. McAlpin argued that he had not yet received a “full

mitigation report,” only an “overview.” He also told the court that he needed a

continuance because his expert witness, Dr. Rodio, was unavailable to testify. The

state confirmed that Dr. Rodio was out of the country, and it offered to stipulate to

the authenticity and admissibility of Dr. Rodio’s report. But McAlpin repeated that

he had received only the “overview” from the psychiatric clinic and that the clinic

“says they don’t even do” full mitigation reports. McAlpin referred to the April 18,

2019 order several times and insisted that it said he “was to receive a full mitigation

report to prepare for the penalty phase of trial.” At standby counsel’s suggestion,

the court went forward with the mitigation hearing to allow McAlpin to present his

lay witnesses.

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{¶ 215} At a break in the proceedings, the court and parties had a discussion

outside the jury’s presence. The state indicated that it would stipulate to the

admissibility and authenticity of Dr. Rodio’s report, the children-services records,

and the prison records provided by the Department of Rehabilitation and

Correction. However, McAlpin did not agree to the stipulations and wanted Dr.

Rodio to testify in person. Given McAlpin’s position, the court said that the

mitigation phase would have to be continued until later in the week.

{¶ 216} McAlpin finished presenting his lay witnesses, then gave his

unsworn statement. Next, the court addressed the jury:

Okay. Ladies and gentlemen of the jury, we had kind of a

development. The Court Psychiatric Clinic had prepared a

mitigation report * * *.

There was an agreement offered that the defendant has

rejected, so we’re going to bring Dr. Rodio in live.

Now, here’s the problem. Dr. Rodio is out of the country as

we speak. He is expected to be able to be contacted on Wednesday

night.

The court explained that it did not know whether Dr. Rodio would be available on

Thursday. The court then said: “We’re going to recess this case until Thursday

morning. We’ll bring him back here. We’ll see if we’ve got Dr. Rodio. * * * And

I apologize for that break. I wasn’t expecting it but this is what happens

sometimes.”

{¶ 217} On Thursday, May 16, the court brought back the jury and asked

McAlpin to call his next witness. McAlpin announced that he was resting. The

court replied, “You’re serious?” and then dismissed Dr. Rodio.

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3. Analysis

{¶ 218} McAlpin argues that the trial court improperly informed the jury

that he had requested two reports, identified the reports for the jurors, and told the

jurors that McAlpin had rejected a stipulation that would have allowed the

mitigation phase to proceed. McAlpin contends that these comments prejudiced

him because he ultimately decided not to introduce the reports into evidence or to

call Dr. Rodio as a witness. He says that prejudice is evident because, in the midst

of its deliberations, the jury requested the reports, which the court refused.

McAlpin contends that this allowed the jury to speculate on why he had not

introduced the reports.

{¶ 219} The state invokes the doctrine of invited error and alternatively

argues that the court’s statements were harmless error.

a. Invited error

{¶ 220} The doctrine of invited error provides that “[a] party will not be

permitted to take advantage of an error which he himself invited or induced the trial

court to make.” Lester v. Luck, 142 Ohio St. 91, 50 N.E.2d 145 (1943), paragraph

one of the syllabus. But “mere ‘acquiescence in the trial judge’s erroneous

conclusion’ ” will not support a finding of invited error. State v. Campbell, 90 Ohio

St.3d 320, 324, 738 N.E.2d 1178 (2000), quoting Carrothers v. Hunter, 23 Ohio

St.2d 99, 103, 262 N.E.2d 867 (1970). In order for the doctrine to apply, McAlpin

must have been “ ‘actively responsible’ for the trial court’s error.” Id., quoting

State v. Kollar, 93 Ohio St. 89, 91, 112 N.E. 196 (1915).

{¶ 221} McAlpin was not actively responsible for the trial court’s

statements. The court decided to tell the jury that the delay in the mitigation phase

was caused by McAlpin’s requests for a presentence investigation and mental

examination. The court acted alone in divulging that McAlpin had asked for the

reports, that he had rejected the state’s offer to stipulate, and that a mitigation report

had been prepared. Thus, the invited-error doctrine does not apply.

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b. The propriety of the trial court’s comments

{¶ 222} The comments McAlpin objects to were all made to the jury. The

trial court’s April 22 comments impart that McAlpin’s requests caused the first

delay. The May 13 comments informed the jury that a mitigation report had been

prepared, that McAlpin had rejected an offered stipulation (which meant that an

expert would have to testify), that the expert was currently unavailable, and that the

trial judge was sorry for the unexpected delay.

{¶ 223} The trial court’s comments—especially those informing the jury

that McAlpin had exercised a statutory right to reports and telling the jury that the

report had been prepared—were unnecessary and improper. By telling the jury that

a mitigation report McAlpin requested had, in fact, been prepared, the court left the

jury to speculate about the contents of the report. Indeed, the jury sent a question

to the court during its penalty deliberations asking whether it had “access to the

report the defense requested.” In response to the jury’s question, the court asked

McAlpin how he would like the court to respond to the jury’s question. McAlpin

and the court discussed the possibilities, and then the court instructed the jury: “You

have all the reports that have been admitted into evidence.”

{¶ 224} A trial judge must bear in mind that his or her influence “on the

jury is necessarily and properly of great weight.” Starr v. United States, 153 U.S.

614, 626, 14 S.Ct. 919, 38 L.Ed. 841 (1894). In this instance, the trial court should

not have informed the jury that the defense had requested a report. The court could

have told the jurors simply that the mitigation phase needed to be delayed until a

later date, without telling them why.

{¶ 225} Nonetheless, McAlpin has not established plain error. His

contention that the trial court’s comments put a “ ‘thumb’ on the aggravation side

of the weighing process” is unpersuasive. First, the court instructed the jurors

during the mitigation phase:

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You must not be influenced by any consideration of

sympathy or prejudice. It is your duty to carefully weigh the

evidence, to decide all disputed questions of fact, to apply the

instructions of the Court to your findings and to render your verdict

accordingly.

In fulfilling your duty, your efforts must be to arrive at a just

verdict. Consider all the evidence and make your finding with

intelligence and impartiality and without bias, sympathy or

prejudice.

If during the course of the trial, the Court said or did anything

you consider an indication of the Court’s view on the facts, you are

instructed to disregard it.

{¶ 226} We presume that the jury followed the trial court’s instructions,

State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995), and McAlpin has

not cited evidence to rebut that presumption. The trial court’s comments did not

constitute plain error. We reject proposition of law No. XII.

L. Prosecutorial misconduct during mitigation

{¶ 227} McAlpin asserts, as proposition of law No. XIII, that the

prosecutors committed misconduct throughout their mitigation-phase closing

argument. He contends that they (1) improperly argued that the nature and

circumstances of the offenses were aggravating, (2) improperly commented on

McAlpin’s unsworn statement, and (3) disparaged the defense. He also argues that

the cumulative effect of the alleged prosecutorial misconduct deprived him of his

due-process rights.

{¶ 228} We must determine whether the challenged statements were

improper and, if so, whether they prejudiced McAlpin’s right to a fair trial.

Donnelly, 416 U.S. at 643, 94 S.Ct. 1868, 40 L.Ed.2d 431. Except when noted,

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McAlpin failed to object to the comments and therefore cannot prevail absent plain

error. Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, at ¶ 21.

1. Comments on the nature and circumstances of the offenses

{¶ 229} Although McAlpin acknowledges that the prosecutor’s mitigation-

phase closing argument properly “instructed the jurors to only consider the statutory

aggravating factors,” he argues that the closing argument improperly referred to the

nature and circumstances of the offenses.

{¶ 230} During a mitigation-phase closing argument, “a prosecutor ‘may

introduce and comment upon * * * any evidence raised at trial that is relevant to

the aggravating circumstances specified in the indictment of which the defendant

was found guilty.’ ” (Ellipsis sic.) State v. McKelton, 148 Ohio St.3d 261, 2016-

Ohio-5735, 70 N.E.3d 508, ¶ 280, quoting State v. Gumm, 73 Ohio St.3d 413, 653

N.E.2d 253, syllabus. Indeed, R.C. 2929.03(D)(1) requires the sentencer to

consider “any evidence raised at trial that is relevant to the aggravating

circumstances the offender was found guilty of committing.” However, it is

improper for a prosecutor to describe nature-and-circumstances evidence as a

statutorily defined aggravating circumstance. Gumm at 422.

{¶ 231} First, McAlpin contends that the prosecutor presented a “needlessly

sentimental narrative” about Mr. Cars when addressing the “occupied structure”

element of aggravated burglary. The prosecutor began his aggravated-burglary

discussion with the element of “trespass in an occupied structure,” stating that “the

place that was trespassed here was Mr. Cars. That’s the occupied structure. Who

occupied it? Michael and Trina Kuznik.” The prosecutor then brought up

Zaczkowski’s testimony about the ownership history of Mr. Cars. The prosecutor

continued to restate portions of Zaczkowski’s testimony, including that Mr. Cars

was “the definition of a mom and pop shop,” the “family lifeline,” and “what [the]

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family lived around, was based around.” He continued with the same theme,

concluding:

That’s where he trespassed into. So, when we talk about a

trespass, this murder, these murders, they didn’t happen out on the

street.

They didn’t happen in a place where Michael and Trina felt

unsafe. They happened inside Mr. Cars, what they considered to be

their home.

That’s what you’re weighing there. That he trespassed into

that structure where they felt safe as they were closing up for the

day.

{¶ 232} By contending that the jury would be “weighing” the fact “that

[McAlpin] trespassed into that structure where [the victims] felt safe as they were

closing up for the day,” the prosecutor implied that the jury would weigh the nature

and circumstances of the aggravated-burglary specification as aggravation. The

prosecution’s argument was not improper. See State v. Mammone, 139 Ohio St.3d

467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 143, 146; State v. Froman, 162 Ohio St.3d

435, 2020-Ohio-4523, 165 N.E.3d 1198, ¶ 124-125.

{¶ 233} Next, McAlpin objects to the prosecutor’s comment with respect to

the reckless-infliction-of-harm element of aggravated burglary. The prosecutor

explained that the harm was the shooting of Michael and Trina and said Trina was

shot in the back of the head “as she tried to run.” The prosecutor continued: “That

goes on the aggravating circumstances part of that scale, and that’s a very heavy

thing that you will weigh as an aggravating circumstance.” (Emphasis added.)

{¶ 234} There was no evidence that Trina was shot “as she tried to run,” so

the prosecutor’s statement was not based on the evidence and was improper. The

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comment immediately following was also improper, as it expressly asked the jury

to weigh the fact that Trina was trying to run from being shot “as an aggravating

circumstance.” Though improper, that single statement was not repeated and did

not prejudice McAlpin by rendering his mitigation hearing fundamentally unfair.

{¶ 235} Later during his argument, the prosecutor stated: “Trina tried to run

away. She tried to get out of that tire compression room door, and he shot her in

the back of the head just as she got to that door.” He continued by arguing that

“Trina heard the first gunshot that killed Michael, and she tried to run and he shot

her before she could even get to that door. That’s how you know that they were

committed within mere seconds of one another.”

{¶ 236} McAlpin argues that the prosecutor was improperly commenting

on what Trina was feeling or thinking in her final moments. Although neither

comment explicitly mentions what Trina was thinking or feeling in her final

moments, the prosecutor’s comments were nevertheless improper because they

strongly suggested that Trina’s final moments were consumed with panic and fear

in response to knowing that Michael had been shot. See Kirkland, 160 Ohio St.3d

389, 2020-Ohio-4079, 157 N.E.3d 716, at ¶ 116 (comments on the victim’s

thoughts prior to death are improper because they invite the jury to speculate on

facts that have not been properly introduced through evidence). As discussed

above, there was no evidence to support the prosecutor’s statement that Trina tried

to run. Nor was there evidence supporting the fact that she heard the gunshot that

killed Michael. Thus, to the extent that the prosecutor’s comment described “facts”

not supported by the evidence or invited the jury to speculate on such facts, it was

improper. We do not find, however, that McAlpin was prejudiced by these

comments such that they influenced the jury’s finding on the death-penalty

specification.

{¶ 237} McAlpin also claims that the prosecutor’s description of the

murders as “execution-style” and “in cold blood” was “deliberately inflammatory

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rhetoric.” These comments were not improper. McAlpin shot Michael twice in the

head. Both shots were fired at close range: one from three feet away at most, the

other possibly from a few inches away. McAlpin shot Trina from a short distance

in the back of the head.

{¶ 238} In light of this evidence, it was not improper to describe the killings

as “in cold blood” and “execution-style.” We have described a murder as

“execution-style” when a defendant had shot his victim in the head four times,

firing at least three shots at close range. See State v. Hale, 119 Ohio St.3d 118,

2008-Ohio-3426, 892 N.E.2d 864, ¶ 139. In another capital case, we called the

murder of one person during an aggravated robbery a “cold-blooded killing that has

no mitigating features.” State v. Fears, 86 Ohio St.3d 329, 348, 715 N.E.2d 136

(1999); see also State v. Jackson, 92 Ohio St.3d 436, 452, 751 N.E.2d 946 (2001)

(close-range gunshots to victims’ heads were “cold-blooded, execution-style

killings”). The evidence in this case supports the prosecutor’s characterizations.

{¶ 239} McAlpin also points to the prosecutor’s allegedly inflammatory

description of the evidence that supported the “theft offense” element of the

aggravated-robbery aggravating circumstance and the course-of-conduct

specification. The prosecutor argued that McAlpin killed two innocent people for

“an 11-year older [sic] Mercedes and a nine-year old BMW and whatever cash

Michael had in his back pocket.” He described the taking of “two innocent lives”

for those vehicles as “pathetic.” Neither comment was improper. The evidence

sufficiently demonstrates that McAlpin’s only motive to murder Michael and Trina

was to steal cash and cars from the Mr. Cars lot.

2. Comments on McAlpin’s unsworn statement

{¶ 240} McAlpin complains about the prosecutor’s closing-argument

comments about McAlpin’s unsworn statement. The prosecutor said:

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It was not subject to cross-examination like every other

witness in this case.

And let’s talk about what he actually said in the unsworn

statement. This was his opportunity to tell you anything that he

wanted about his history, his character, his background that might

have been a reason not to impose the death penalty.

And what did he actually tell you? He told you that he stands

on his innocence.

***

He told you that he stands on his innocence, and he told you

that maybe this is all a good thing because it helped bring his family

together.

Ladies and gentlemen, his statements to you in opening, and

in his unsworn statement that he stands on his innocence are not

mitigation. They’re not mitigating. They are an attempt to raise

what is called residual doubt.

McAlpin contends that it was error for the prosecutor to “undermin[e]” his unsworn

statement by “emphasizing” that it was not subject to cross-examination. However,

McAlpin is incorrect; the prosecutor’s one comment to this effect reflected the truth

regarding McAlpin’s unsworn statement. When a defendant opts to make an

unsworn statement, a prosecutor “may comment that the defendant’s statement has

not been made under oath or affirmation.” DePew, 38 Ohio St.3d 275, 528 N.E.2d

542, at paragraph two of the syllabus.

{¶ 241} McAlpin also contends that the prosecutor’s comment urging the

jury to give McAlpin’s unsworn statement no weight was improper. It was not.

The prosecutor is entitled to argue that the aggravating circumstances outweigh the

mitigation presented and that individual pie

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