# State v. McAlpin

> Ohio Supreme Court · May 12, 2022 · 169 Ohio St. 3d 279

URL: https://www.frixlaw.com/law-library/cases/6339896

## Case

- **Court:** Ohio Supreme Court
- **Decided:** May 12, 2022
- **Citations:** 169 Ohio St. 3d 279; 204 N.E.3d 459; 2022 Ohio 1567
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stewart, J.
- **Cited by:** 144 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6339896

## How later opinions describe it (automated extraction)

- finding that search for pornographic websites was not prejudicial in light of overwhelming evidence of guilt
- applying the same test

## Opinion text

[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.
SUPREME COURT OF OHIO

{¶ 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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SUPREME COURT OF OHIO

{¶ 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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January Term, 2022

{¶ 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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{¶ 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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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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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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{¶ 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 plai

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6339896. Public record. Not legal advice.