Petition for Writ of Certiorari — Lance Hundley, Petitioner v. Ohio

APPENDIX TO THE PETITION FOR A

WRIT OF CERTIORARI

TABLE OF CONTENTS

APPENDIX A

Judgment Entry of the Mahoning County Court of

Common Pleas of July 6, 2018..................................2a

APPENDIX B

Opinion of the Mahoning County Court of Common

Pleas of July 6, 2017................................................10a

APPENDIX C

Opinion of the Supreme Court of the State of Ohio of

July 22, 2020............................................................12a

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Appendix A

IN THE COURT OF COMMON PLEAS

MAHONING COUNTY, OHIO STATE OF OHIO

CASE NO. 2015-CR-1132

State of Ohio

Plaintiff

v.

Lance Hundley

Defendant

JUDGE MAUREEN A. SWEENEY

Judgment Entry

Case called for imposition of sentence

pursuant to Ohio Revised Code 2929.03 and 2929.04

this 5th day ofJ une, 2013. At the trial of this case

the Defendant was found guilty beyond a reasonable

doubt on May 21, 2018 to the following:

Guilty of Count 1: Aggravated Murder; Ohio

Revised Code 2903.01(A)(F), Fe|ony/ Life/ Death;

with the Death Penalty Specification Ohio Revised

Code 2929.04(A)(5)&2941.14;

Guilty of Count 2: Attempted Murder; Ohio

Revised Code Z903.02(A)(D)&2923.02(A), Felony of

the First (1") Degree;

Guilty of Count 3: Felonious Assault; Ohio

Revised Code 2903.11(A)(1)(D), Felony of the Second

(2") Degree;

Guilty of Count 4: Aggravated Arson; Ohio

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Revised Code 2909.02(A)(1)(B)(1)(2), Felony of the

First (1") Degree;

Guilty of Count 5: Aggravated Arson; Ohio

Revised Code 2909.02(A)(2)(B)(1)(3), Felony of the

Second (2") Degree;

The Court received said verdicts and rendered

judgment therein.

On May 30, 2018, at the second phase of this

trial proceeding, the jury unanimously recommended

that death be imposed upon the defendant. Present

in open Court this date were the prosecuting

attorneys, the defendant and his stand by counsel.

The Defendant was afforded the opportunity to

speak, and the prosecuting attorney was also given

the opportunity to speak. Victims' representatives

were present in the Court and were not permitted to

address the Court before sentence was imposed.

As required by Ohio Revised Code 2923.03(D)

(3), this Court has considered all the relevant

evidence raised at trial, the testimony, other

evidence, arguments of counsel and the unsworn

closing statement of Defendant, and the trial jury's

recommendation that the sentence of death be

imposed. The defendant did not allocate. The Court

is required by law to deliberate and to perform an

independent judicial analysis in a separate finding

as to the existence of any mitigating factors as set

forth in 2929.04(B) of the revised code as well as any

other factors that are relevant to the issue of

whether the Defendant should be sentenced to

death. The Court must consider the mitigating

factors; weigh the aggravating circumstance against

the mitigating factors to determine whether the

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State of Ohio proved beyond a reasonable doubt that

the aggravating circumstance does in fact outweigh

the mitigating factors. The Court was not provided

any mitigating factors by the Defendant. The Court

did examine any mitigating factors as revealed

during trial, including any presented involving the

nature and circumstance ofthe offense, the

statements and arguments of counsel, the evidence,

the testimony of witnesses, exhibits offered into

evidence. The Court finds no mitigating factors as

relates to the nature and circumstance of the offense

charged. The Court did consider in accordance with

O.R.C. 2929.04(B) and 2929.04(B)(7). The mitigating

factors listed therein.

The Court has weighed all of the mitigating

factors. When considered individually and together,

they have at best minimal mitigating value.

Separately or combined they provide very little

weight to lessen the moral culpability ofthe

Defendant. The Court finds that the mitigating

factors pale and are dwarfed in comparison to the

aggravating circumstance. Therefore the Court finds

that the aggravating circumstances outweighs the

mitigating factors beyond a reasonable doubt. The

Court accepts the Jury's recommendation. The Court

orders that Lance Hundley is by law hereby

sentenced to death for the aggravated murder of

Erika Huff. The victim's family representatives

made a statement to the Court after the Court

announced the sentence of death. The Court further

sentences the Defendant on the remaining counts

ofthe indictment for which Lance Hundley was found

guilty.

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For purposes of sentencing Count 3 merges

with Count 2 and Count 5 merges with Count 4.

Guilty of Count 2: Attempted Murder; Ohio Revised

Code 2903.02(A)(D)&29Z3.02(A), Felony of the First

(1") Degree - ELEVEN (11) YEARS IN PRISON;

Guilty of Count 4: Aggravated Arson; Ohio Revised

Code 2909.02(A)(1)(B)(1)(2), Felony of the First (1")

Degree - ELEVEN (11) YEARS IN PRISON; Counts

2 and 4 are to run consecutively to each other for a

total of Twenty Two (22) years and consecutively to

the sentence of death.

The Court Finds that

consecutive sentences are warranted pursuant to

2924.14(C)(4): The Court finds that consecutive

sentences are necessary to protect the public from

future crime and to punish the offender, and that the

consecutive sentences are not disproportionate to the

seriousness of the offenders conduct and to the

danger the offender poses to the public. The Court

also finds that: at least two multiple offenses were

committed as part of one or more courses of conduct,

and the harm caused by two or more of the multiple

offenses so committed was so great or unusual that

no single prison term for any of the offenses

committed as part of any of the courses of conduct

adequately reflects the seriousness of the offenders

conduct. A writ of execution of the death penalty

shall issue forthwith, which shall be directed to the

Sheriff of Mahoning County directing him, within 30

days, in a private manner, to convey the Defendant,

Lance Hundley, to the Ohio Department of

Rehabilitation and Corrections, where the

Defendant is ordered to be held in custody

until the 6th day of November, 2018 at which time,

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and not later than midnight of such date, this

sentence shall be carried out and the Defendant

shall be put to death in accordance with law.

The warden of the correctional institution in

which the sentence is to be carried out or another

person selected by the director of Rehabilitation and

Corrections shall ensure that the death sentence is

executed, all as provided in Ohio Revised Code

2949.22(A)(B).

The Defendant was advised of his appellate

rights pursuant to Criminal Rule 32 and was further

advised pursuant to 2929.19(B)(3), 2953.08 and

2967.28. Defendant's counsel was ordered to file

proper notices to pursue Defendant's appeal.

DATE

SWEENEY

(SIGNED)

JUDGE

MAUREEN

CLERK: COPIES TO ALL COUNSEL OR

UNREPRESENTED PARTIES

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Appendix B

IN THE COURT OF COMMON PLEAS

MAHONING COUNTY, OHIO STATE OF OHIO

CASE NO. 2015-CR-1132

State of Ohio

Plaintiff

v.

Lance Hundley

Defendant

JUDGE MAUREEN A. SWEENEY

SENTENCING OPINION

On May 21, 2018, a jury found Lance Hundley

guilty of one (1) count of aggravated murder in

violation of O.R.C. 2903.01(A)(F), one count of

attempted murder in violation of O.R.C. 2903.02(A)

(D) &2923.02(A), one count of felonious assault in

violation of O.R. C 2903.11(A)(1)(D), one count of

aggravated arson in violation of O.R.C. 2909.02(A)(1)

(B)(1)(2) and one count of aggravated arson in

violation of O.R.C. 2909.02(A)(2)(B)(1)(3). The

aggravated murder involved the death of Erika Huff.

This charge included a specification that the

aggravated murder was part of a course of conduct

involving the purposeful killing of or attempt to kill

two or more persons by the defendant.

The jury returned guilty verdicts on all counts

and the specification. Lance Hundley declined a

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presentence investigation and/or a mental health

evaluation. Lance Hundley was fully advised of all

his rights before the Court proceeded to the

sentencing phase. On May 30, 2018, this Court

commenced the sentencing phase of the trial. Prior

to commencement, Defendant Lance Hundley

declared that he wanted to represent himself. The

State objected. Attorney Greg Meyers, who had been

representing the Defendant urged this court to allow

him to represent himself since he was not using this

as a delay tactic. The Court reviewed a series of

questions with the Defendant making sure he

understood the perils he might be facing. Further

the Court had the Defendant execute a Judgment

Entry entitled Waiver of Counsel before proceeding

any further.

This court permitted the State to use the trial

exhibits during the sentencing phase with the

exception of two. There was no objection from the

Defendant. The prosecution proceeded with an

opening statement. The Defendant declined to make

an opening statement. The State proceeded with

minimum evidence and the Defendant produced no

mitigation evidence. Counsel for the State presented

its closing argument and the Defendant presented

his closing argument. At approximately 4:15 on May

30, 2018, the jury returned a sentencing verdict

finding that the State of Ohio proved beyond a

reasonable doubt that the aggravating circumstance

in the specification in Count One outweighed the

mitigating factors. The jury verdict indicated the

penalty of death. The jury was appropriately

sequestered during the trial phase and the

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sentencing phase deliberations. No overnight

sequestering was necessary. The jury's verdict of

death on the specification in Count one constitutes a

recommendation to the Court.

This Court is required to perform an

independent review of this matter pursuant to Ohio

law. As required by O.R.C.§ 2929.03 and based upon

the sentencing verdict of the jury, this Court must

now weigh the aggravating circumstance, that the

aggravated murder was part of a course of conduct

involving the purposeful killing of or attempt to kill

two or more persons by the defendant and the

mitigating factors to determine whether the jury

recommendation of death should be the final

sentence of this Court. In Ohio, a jury verdict of

death is a recommendation to the Court. When such

recommendation is made, the trial judge must

deliberate and render the final sentence. Guidance is

provided by case law and pursuant to the

requirements of Chapter 2929 of the Ohio Revised

Code. Ohio law requires that the Court set forth its

specific findings as to the existence of any mitigating

factors pursuant to O.R.C. §2929.04(B) as well as

any other mitigating factors, the aggravating

circumstances the defendant was found guilty of

committing and the reasons for the Court's

reasoning behind the weight process.

Regarding the aggravating circumstance, the

evidence as to the attempted killing of Denise

Johnson came from the victim herself. She described

being beaten with a hammer and then set in a room

next to her dead daughter while the room was being

lit on fire. However these actions and the aggravated

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murder of Erika Huff are not aggravating

circumstances and are not considered by the Court.

The court recognizes that mitigating factors are

factors about an individual which weigh in favor of

one of the life sentences is the appropriate sentence.

The Defendant produced no mitigating factors. The

Court did not permit the victim's family to present a

victim's impact statement but did however, permit

victim's family to address the Court after the Court

announced its sentence. There is no doubt that the

aggravating circumstance in this case deserves great

weight. There is nothing mitigating about the

offenses committed. The Court is to weigh all the

mitigating factors and determine if the aggravating

circumstance outweighs the mitigating factors

beyond a reasonable doubt. However, the Court was

not provided with any mitigating factors. Therefore,

the Court will consider Mr. Hundley's background,

character and history he has amassed during his life

through the use of two competency evaluations that

were completed and previously stipulated to and

moved into evidence.

The Defendant is currently forty-eight years of

age. He is either a high school graduate or got his

GED depending on which report you reference. He

did not serve in the armed forces. He has never been

married and has no children. He has no history of

mental illness. Mr. Hundley does have a prior

criminal record both as a juvenile and an adult. He

has been to prison on a sex offense. The Court has

weighed these mitigation factors. When considered

alone or together, they have minimal value. They

have little if any weight compared to the moral

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culpability of the defendant. The Court has also

reviewed all of the other factors enumerated in

O.R.C. §2929.04(B). The Court finds none of these

factors are applicable. The Court finds they hold no

weight compared to the aggravating circumstance.

After much deliberation, consideration and analysis,

and review of the evidence, the relevant testimony,

the unsworn closing argument of the defendant, and

allocution of the Defendant, the Court finds that the

aggravating circumstance in Court One outweighs

the mitigating factors by proof beyond a reasonable

doubt.

The

Court,

therefore,

accepts

the

recommendation of the jury. The Court orders that

Lance Hundley is hereby sentenced to death.

I hereby certify that a copy of the foregoing

opinion was delivered to Attorney Greg Meyers,

Attorney

Doug

Taylor,

Attorney

Dawn

Cantalamessa, Attorney Jennifer McLaughlin, and

Attorney Michael Yacavone this 6th of June, 2018. I

also certify that a copy of the foregoing opinion was

duly mailed by ordinary United States Mail to the

Clerk of Courts of the Supreme Court of Ohio, 65 S.

Front Street, Columbus, Ohio 43215 this day.

Judge,

(Signed)

MAUREEN A. SWEENEY

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State v. Hundley, 2020-Ohio-3775

Supreme Court of Ohio

February 12, 2020, Submitted; July 22, 2020,

Decided

No. 2018-0901

Opinion

KENNEDY, J.

[*P1] On November 6, 2015, appellant, Lance

Hundley, murdered Erika Huff and attempted to

murder her mother, Mrs. Denise Johnson. After a

trial, a Mahoning County jury convicted him of

aggravated murder with a course-of-conduct

specification, attempted murder, felonious assault,

and two counts of aggravated arson. Following the

jury's recommendation, the trial court sentenced

Hundley to death on the aggravated-murder count.

[*P2] We now review Hundley's direct appeal of

right and, for the following reasons, affirm his

convictions and sentence of death.

I. BACKGROUND

A. Hundley moves in with Huff

[*P3] Huff lived at 44 Cleveland [**2] Street in

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Youngstown, Ohio. She had a progressive form of

multiple sclerosis and could no longer walk. She was

entirely dependent on a wheelchair, and a Hoyer lift

was used to transfer her from her bed to the

wheelchair. Huff received daily care and assistance

from nurse aides employed by Comfort Keepers. The

nurse aides would assist Huff with the daily chores

such as cooking and cleaning, getting in and out of

bed, and getting dressed and undressed. She also

wore a medical-alert necklace that was monitored by

Guardian Medical. If the alert was activated,

Guardian would call Huff's mother, Mrs. Johnson.

An ambulance would also be dispatched to the

address provided by Guardian.

[*P4] Huff's house at 44 Cleveland Street was one

story with an attached garage. The front door was in

the center of the house and opened into the front

room. To the left of the door was a living area and to

the right, a dining area. The dining area contained a

large oval table. A hallway from the front room led to

the back of the house. The kitchen was behind the

dining area, with an entrance off the right-side of the

hallway. At the end of the kitchen, opposite the

entrance, was a door that led to the attached garage.

[**3] Continuing down the hallway, at the end on

the left, was Huff's bedroom. And to the right, across

from Huff's bedroom, was a spare room in which the

back door was located.

[*P5] In the summer of 2015, Hundley moved from

Washington, D.C., to Youngstown. Huff, who had a

daughter with Hundley's brother, offered him a room

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in her house at 44 Cleveland Street sometime in the

fall. According to Mrs. Johnson, Hundley had been

living in Huff's house for approximately three to four

weeks by early November. Mrs. Johnson was asked

by the prosecutor whether the relationship between

Huff and Hundley had become strained, however,

the court sustained an objection to the question. The

prosecutor then inquired of Mrs. Johnson whether

Huff and Hundley were getting along. She testified

that they got along but that their relationship was

strained.

[*P6] According to A'Shawntay Heard, a nurse aide

who had cared for Huff for years, Huff's demeanor

changed after Hundley moved in, especially when he

was around. Heard testified that Hundley was a

controlling person and Huff would hold "a lot of stuff

in" and not be as open as she had previously been.

When Hundley would leave the house, Huff would

say things to Heard, [**4] including that "she was

just fed up with everything." Heard testified that she

felt very uncomfortable when Hundley was at the

house. She also said that Huff had lost caregivers

because of Hundley.

B. Events of November 5 and 6, 2015

1. Huff's medical alert

[*P7] Heard was on duty at Huff's house on

November 5, 2015. She worked a four-hour shift that

ended at 10:00 or 11:00 p.m. Heard testified that she

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completed the typical evening-shift tasks and helped

Huff get into bed. She made sure that Huff had

access to her cell phone, snacks, and a grabbing aid.

At Huff's request, Heard tucked the cash Huff had

received from her monthly disability check

underneath her thighs, between the bedsheet and

Huff's body. Heard testified that the grabbing aid

was not bent when she left the house that evening.

[*P8] According to Heard, Hundley was in and out

of the house all evening. She testified, "I was in the

kitchen cooking for [Huff] * * * he was * * * making

me feel uncomfortable, coming towards me. I had

asked him please back away from me. And he did

back away from me once I asked him. Like, he's

trying to just hit on me." Hundley told Heard that he

"needed some type of mental help and he wasn't

from the area." [**5] Heard gave him the name of a

local counseling center.

[*P9] Just before she left the house, Heard gave

Huff her personal cellphone number. This was

against company policy, but Heard said that she

gave Huff her number because Heard "had felt that

whole day [that] something just wasn't right or

something was going to happen." She felt

uncomfortable because Hundley "was in the home * *

* that night and he was drinking." When Heard left,

Hundley was not there.

[*P10] At 2:01 a.m. on November 6, Huff's medicalalert necklace was activated and an ambulance was

dispatched to 44 Cleveland Street. Brittany Koch

16a

and her partner, licensed emergency medical

technicians ("EMTs"), received a dispatch for an

"unknown medical alarm." Koch testified that they

received an address but no further information, such

as a name, gender, or age. When they arrived at 44

Cleveland Street, they noted that there was one

light-colored car in the driveway and the lights were

on behind the drawn blinds; they knocked on the

front door and identified themselves. Initially nobody

responded, so the EMTs knocked on doors and

windows. Still receiving no response, Koch

attempted to open the front door, but it was locked.

[*P11] The EMTs had [**6] been at the house a

couple of minutes and were preparing to check the

back of the house when a tall African-American man

—who was later identified by Koch as Hundley—

opened the front door. Koch testified that the man

was wearing a red hat and a dark hooded sweatshirt.

The man told her that he had accidentally triggered

the medical alarm and nothing was wrong. Under

the belief that the man was the patient, Koch and

her partner told him to call back if he needed help.

According to Koch, the man was calm and polite and

did not seem anxious.

2. Hundley attacks Mrs. Johnson

[*P12] Shortly after the activation of Huff's medical

alert, Guardian called Mrs. Johnson. Mrs. Johnson

testified that she got to Huff's house no more than

ten minutes after receiving the call. Mrs. Johnson

17a

parked in the driveway behind a white car that she

did not recognize. She also stated she did not see an

ambulance. As she unlocked the front door, she noted

that the top lock was locked, which was unusual

because it was the practice of the nurse aides to lock

only the bottom lock.

[*P13] Mrs. Johnson entered the house and found

Hundley standing inside with a gasoline can. She

smelled gas, and when she asked Hundley where

Huff was, [**7] he said that she was in the back.

Mrs. Johnson told Hundley that she was there to

check on Huff and to let first responders in because

the medical-alert necklace had been activated.

Hundley told Mrs. Johnson that the first responders

had already gone. Mrs. Johnson then picked up the

gasoline can, which Hundley had set on the floor,

and took it to the attached garage through a door in

the kitchen.

[*P14] When Mrs. Johnson reentered the kitchen,

Hundley attacked her. Hundley pinned Mrs. Johnson

between the refrigerator and the door to the garage

and began to hit her on the head with a hammer.

Mrs. Johnson testified that during the attack,

Hundley told her he had killed Huff and would also

kill her and Huff's brother. When Mrs. Johnson

asked why, Hundley told her that Huff "wanted to

have sex with [him] and she was disrespecting [his]

brother." Hundley also expressed to Mrs. Johnson

his belief that Huff and her family just "weren't into

him." At one point, Mrs. Johnson told Hundley to

stop and reached for him, but Hundley admonished

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her to not "touch [him] with those bloody hands and

get [his] white $150 shirt all dirty." Mrs. Johnson

testified that the shirt was white, and it had "some

kind [**8] of emblem on it or something."

[*P15] Hundley continued to beat Mrs. Johnson

with the hammer. But he then grabbed a kitchen

knife and held it to Mrs. Johnson's face while

choking her and dragging her through the house.

Mrs. Johnson lost consciousness.

[*P16] When Mrs. Johnson regained consciousness,

she was lying on the floor of Huff's bedroom next to

her daughter. Mrs. Johnson saw flames burning at

her feet and around Huff's body. Mrs. Johnson sat up

and tried to brush the fire away from her feet and

from Huff. But Hundley saw Mrs. Johnson moving

around, so he returned to the bedroom, took Huff's

grabbing aid, and tried to hit Mrs. Johnson with it to

force her to stay down. Mrs. Johnson was able to

take the tool away from Hundley, who then retrieved

some alcohol and splashed it on her face. Not

knowing where Hundley had gone, Mrs. Johnson

crawled to a window. As the room filled with smoke,

Mrs. Johnson attempted to escape through the

window by dislodging an air-conditioning unit.

3. Rescue of Mrs. Johnson and discovery of Huff's

body

[*P17] Mrs. Johnson's husband, Lonnie Johnson,

was concerned when Mrs. Johnson did not return

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from Huff's home. He drove to Huff's house and was

surprised to find the front [**9] door was locked

because it was never locked. He heard a "wrestling"

noise coming from inside the house and thought he

heard Mrs. Johnson say something like "get out of

here." At 2:56 a.m., Mr. Johnson called 9-1-1.

[*P18] Youngstown Police Officers Michael David

Medvec Jr. and Ken Bielik arrived at the scene at

3:06 a.m. They spoke to Mr. Johnson and then

walked around the perimeter of the house twice

looking for signs of a burglary. They found no signs

of illegal entry. As the officers were about to unlock

the front door (using Mr. Johnson's key), the officers

heard a "scuffling noise * * * like something[ was]

being pulled towards the back of the house." They

immediately ran to the back.

[*P19] A third Youngstown Police officer, Timothy

Edwards, joined Officers Medvec and Bielik. As the

three officers reached the back of the house, they

heard "the air conditioner being rattled" and then

realized that the room was on fire. They heard

pounding on the window and screams for help. Once

they had pulled Mrs. Johnson to safety, Officer

Medvec could see into the bedroom and noticed a

body, partially clothed, lying on the floor and on fire.

He testified that the person appeared to be dead.

[*P20] Officer Edwards [**10] saw the back door

open and a taller black male with a bald head look

around. According to Officer Edwards, upon seeing

the officers, the man "immediately closed the door

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and stepped back inside." Officer Medvec also

testified that he "saw a hand, what was clearly a

man's hand, pull the door back shut."

[*P21] Officers Medvec and Edwards entered the

house three times, but twice had to retreat because

of heavy smoke. Officer Medvec testified that there

was no evidence of a break-in or burglary. They

found Huff's body face up on her bedroom floor. The

body was clothed only in underwear, a gasolinesoaked shirt, and socks.

[*P22] The third time the officers entered the

house, they went through the front door and found

Hundley. He was lying on the floor, by his gym bag,

in close proximity to the front door, halfway

underneath the dining-room table. Officer Medvec

testified that neither officer had seen him or anyone

else the two previous times they had entered the

house. When he was taken out of the house, Hundley

was motionless but uninjured and free from soot or

other debris from the fire. Both Officer Edwards and

Detective Sergeant Anthony Vitullo, who arrived on

the scene shortly after Officers Medvec, [**11]

Edwards, and Bielik, testified that they did not

observe any injuries or visible marks on Hundley.

[*P23] After Mrs. Johnson identified her attacker to

an investigating officer, Hundley was the sole

suspect in Huff's death. Ambulances took Hundley

and Mrs. Johnson to St. Elizabeth Youngstown

Hospital. Officer Bielik accompanied Hundley to the

hospital.

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4. Huff's autopsy

[*P24] Dr. Joseph Ohr, a deputy coroner for

Mahoning County, conducted Huff's autopsy. But

because Dr. Ohr died before Hundley's trial, Dr.

Joseph Felo, the deputy medical examiner for

Cuyahoga County, testified as a substitute witness.

Dr. Felo reviewed Huff's autopsy report, toxicology

report, medical history, and photographs from the

scene and the autopsy.

[*P25] Referring to the autopsy report, Dr. Felo

explained that Huff died from "two mechanisms"—

blunt trauma of her head, face, chest, and abdomen

in conjunction with ligature strangulation—and her

death was not instantaneous. Dr. Felo also stated

that because there was no sign of smoke or soot in

her nostrils or her airways down to the lungs, the

fire began after Huff's death.

[*P26] Dr. Felo testified that Huff suffered bluntforce trauma while she was still alive, resulting in

significant [**12] bruising and facial and head

lacerations, but that the impacts on her body were

not immediately fatal. However, Dr. Felo noted that

Huff had been struck with enough force to tear a

major vein that supplies or collects blood from the

intestines, leading to "massive internal bleeding

around the belly." The internal bleeding would have

made Huff "shocky and somewhat weaker during her

dying process."

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[*P27] The blunt-force trauma contributed to Huff's

death, according to Dr. Felo, in conjunction with the

strangulation. Dr. Felo noted that there was

evidence of petechial hemorrhages on the whites of

Huff's eyes, which indicated strangulation. He also

noted that a black cord around Huff's neck "was

tight enough to leave an impression."

[*P28] Dr. Felo testified that the bruising from the

blunt-force

trauma

occurred

before

the

strangulation. Additionally, he explained that the

amount of blood that had accumulated in Huff's body

and the bruising that had developed indicated that

"the beating t[ook] a while."

[*P29] The autopsy revealed many other nonlethal

injuries. Huff had been beaten severely on her face

and head, resulting in multiple significant bruises

and cuts. Her body showed evidence of blunt impacts

[**13] to the trunk and extremities, including rib

fractures, the massive internal bleeding, and

bruising and lacerations on the front and back of her

upper arms and on her chest. She had several

defensive wounds on her forearms and hands.

[*P30] Dr. Felo also noted areas on Huff's body

where her skin had sloughed off or slipped away as a

result of gasoline being poured on her body. He also

pointed out an area of brown discoloration on Huff's

side, which he said was indicative of a "thermal

injury from her body being set on fire after she died

and there's some charring of the skin." Dr. Felo

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testified, to a reasonable degree of medical certainty,

that Huff was already dead when the fire occurred.

5. Mrs. Johnson's injuries

[*P31] Mrs. Johnson arrived at St. Elizabeth's

emergency room at 3:38 a.m. on November 6.

Cortney Birchak, a registered nurse who treated

Mrs. Johnson later in the morning, testified that

Mrs. Johnson had "sustained significant * * *

multiple head injuries from a hammer." Birchak saw

multiple lacerations and areas of stapling and

bruising on Mrs. Johnson's face. There was swelling

on her face. According to Birchak, Mrs. Johnson was

in such severe pain that Birchak could not

completely [**14] clean the dried blood off Mrs.

Johnson's face and hands. Mrs. Johnson's hospital

records indicate that she also suffered a concussion

with loss of consciousness and a fracture to her left

hand.

6. Hundley's arrest

[*P32] Detective Sergeant Ronald Rodway of the

Youngstown Police Department arrived at the crime

scene after Hundley and Mrs. Johnson had been

taken to the hospital. Detective Rodway walked

through the house and then spoke to fire-department

personnel and arson investigators. Next, Detective

Rodway and his partner went to the hospital hoping

to talk to Mrs. Johnson.

24a

[*P33] When Detective Rodway arrived at the

hospital, EMT Koch was in the emergency room on

another emergency call. Rodway asked EMT Koch if

she recognized the patient in one of the trauma bays.

EMT Koch said yes and confirmed that he was the

man who had opened the door at the house at 44

Cleveland Street on the EMTs' earlier run to that

address.

[*P34] Detective Rodway eventually spoke with

Mrs. Johnson, who identified Hundley as her

attacker. Hundley was discharged from the hospital

into police custody around 2:00 p.m. on November 6,

2015. He initially waived his rights under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), and voluntarily talked to detectives. At the

start of [**15] the interview, Hundley was focused

on papers in front of him, and detectives had to ask

him to put the documents aside while they spoke.

Before the detectives asked any questions about

Huff's death and the attack on Mrs. Johnson,

Hundley asked, "What do you all think is going on?"

[*P35] Hundley told investigators that he had

known Huff for approximately eight years, that they

had a good relationship, and that he had been living

at Huff's house for about a month. Hundley also said

that he was in and out of the house on Thursday

night. He said that he had been at the Southern

Tavern and acknowledged that he had had one shot

of Ciroc and a beer but denied that he had been

intoxicated. When asked whether Huff was awake or

25a

sleeping when Hundley returned from the bar,

Hundley said, "[T]his here is where it gets tricky."

[*P36] At this point, Hundley asked the detectives

whether he was under arrest (they said yes) and

then said that he had "kind of figured out something

from police officers. Erika died?" Hundley then

invoked his right to counsel. However, Hundley

volunteered that he had been "choked out" by a

stranger who broke into Huff's house early Friday

morning. Then, after the investigators confirmed

[**16] he wanted counsel, Hundley said: "That's it.

You all [are] detectives, you all do your jobs. * * * I'm

arrested for murder apparently."

C. Evidentiary analysis

1. DNA testing

[*P37] The Ohio Bureau of Criminal Investigation

("BCI") received DNA standards from Huff, Mrs.

Johnson, and Hundley, and a forensic scientist took

cuttings from each swab for testing against evidence

obtained from the crime scene.

[*P38] BCI conducted DNA testing on swabs from

the claw, the head, and the handle of the hammer

used to attack Mrs. Johnson. The hammer handle

contained a mixture of DNA contributions, with Mrs.

Johnson as a major contributor. The claw and head

also contained Mrs. Johnson's DNA profile. BCI

forensic scientist David Miller explained to the jury

26a

that an item containing a large amount of one

person's DNA may also contain a small amount of

another person's DNA, which might be drowned out

by the larger contribution. Further Y-STR testing

(which looks only at the Y chromosome along a DNA

strand) on the hammer's handle revealed some male

DNA, but there was not a sufficient amount of DNA

for comparison.

[*P39] BCI also tested blood samples from the

handle of Huff's grabbing aid, which was bent when

it was collected [**17] from the house. The handle

yielded a Y-STR profile consistent with Hundley,

with a frequency of 1 in 621 unrelated males. The

grab end and the black discs at the grab end each

yielded a single profile that was consistent with Mrs.

Johnson. The frequency of the profile was 1 in 1

sextillion 282 quintillion for all three locations.

[*P40] BCI also tested the bloody white Hilfiger

polo shirt that Hundley had been wearing. The polo

shirt had "YACHT CLUB New York" on the front

upper-right side and a large crest with HILFIGER

underneath the crest on the front upper-left side.

The polo shirt was found in Hundley's gym bag in

the dining area near the front door of the house.

[*P41] The inside collar of the polo shirt yielded a

mixture of profiles, and BCI could not exclude

Hundley or Mrs. Johnson as possible contributors.

The statistic for that mixture of profiles was 1 in

4,307,000. Assuming random testing, this result

means that BCI would test "around 4 million people

27a

before [it] would find someone who could * * * fit into

that mixture of DNA profiles." Two other stains on

Hundley's polo shirt contained a profile consistent

with Mrs. Johnson, to an expected frequency of 1 in

1 sextillion 282 quintillion. [**18]

[*P42] DNA testing of Huff's fingernail clippings

yielded a mixture of profiles including Huff's and

Hundley's. STR testing, another form of DNA

testing, found a profile consistent with Hundley to

an expected frequency of 1 in 300,000, and Y-STR

testing confirmed that he was a contributor.

2. Arson investigation

[*P43] Brian Peterman, an investigator from the

State Fire Marshal's office, examined 44 Cleveland

Street on November 6, 2015. He arrived shortly after

6 a.m. Peterman found minimal damage outside the

house, mainly minor smoke staining around the

window from which the air-conditioning unit had

been removed. A strong odor of gasoline was still

present when he entered the house. After examining

the inside of the house, Peterman concluded that the

fire had originated in Huff's bedroom. He found an

irregular burn pattern that began on Huff's bed and

"continued down from the bed onto the floor in an

irregular shape."

[*P44] While sorting through the fire debris, fire

investigators collected a metal knife blade, clothing,

a cigarette lighter, a swatch of carpet from the floor

28a

near Huff's bed, and other debris. Peterman also

collected a gasoline can that he found in the garage.

The coroner's office provided [**19] Peterman with

the t-shirt that Huff had been wearing, and

Youngstown police also provided him with the other

clothes taken from the house, which included

Hundley's white Hilfiger polo shirt and white t-shirt.

[*P45] Christa Rajendram, Ph.D., the forensiclaboratory supervisor at the State Fire Marshal's

office, identified 13 items that were tested, including

items that Peterman had collected from the house

and items collected by the coroner and the police. Dr.

Rajendram testified to a reasonable degree of

scientific certainty that gasoline was detected on

every item. Hundley's white Hilfiger polo shirt and

white t-shirt also tested positive for chloroform.

D. Defense case

[*P46] The defense presented testimony from two

witnesses. Hundley testified that Huff had been his

brother's former girlfriend and he had known her for

about eight years After moving to Youngstown from

Washington, D.C., Hundley stated he initially lived

with his brother. However, that living arrangement

became crowded and Hundley asked Huff if he could

stay with her.

[*P47] Hundley testified that Huff was in a

wheelchair and that he had been in her bedroom a

couple times when the nurse aide used the Hoyer lift

29a

to move Huff. Hundley explained [**20] that a

Hoyer lift is used to transfer a person who is

paralyzed or unable to move from a bed to a

wheelchair or stretcher.

[*P48] Hundley then testified to the events of

November 5, 2015. He said he returned to Huff's

house around 8:00 p.m. after being at his cousin's

house and stopping at a nearby convenience store to

buy two 24-ounce beers. According to Hundley, he

and Huff chatted until around 9:00 or 9:30 p.m.,

when Heard put Huff to bed. He smoked a "blunt of

marijuana" with Huff before she went to bed. Around

9:30 or 10:00 p.m., Hundley went to a nearby bar

until 11:00 or 11:30 p.m., when he returned to Huff's

house. Hundley testified that when he returned,

Huff was still awake so he went into her room and

talked for a while.

[*P49] Hundley claimed he then went to the living

room and fell asleep on the couch. He testified that

the next thing he remembered "was being woke up

with somebody strangling [him] out from behind."

He said that he blacked out and woke up on the

kitchen floor. Hundley got up and walked toward the

back of the house, by Huff's bedroom. Hundley

testified that at that point, he saw a dark-skinned,

African-American male about Hundley's height leave

Huff's bedroom carrying [**21] a gas can.

[*P50] Hundley checked on Huff only to find that

she was on fire; he was not sure that she had a

pulse. At that point, Mrs. Johnson entered the front

30a

door. Before he realized who was at the door,

Hundley grabbed the hammer from a kitchen

drawer. Hundley said that he had a knife in his

other hand, but that he dropped both the hammer

and knife on a table when he saw Mrs. Johnson.

According to Hundley, he saw Mr. Johnson's truck

parked behind Mrs. Johnson's car in the driveway

and the intruder was sitting in the truck's passenger

seat. Hundley testified that Mrs. Johnson had a gas

can in her hand and that she told him, "Lance, it's

not too late. We can come up with something to tell

the police." Mrs. Johnson tried to get Hundley to sit

on the couch, but he began to hit her with the

hammer because he "didn't know what she was going

to do from that point." In the struggle, Mrs. Johnson

and Hundley ended up on the floor of Huff's room

until Hundley kicked her to get away.

[*P51] Hundley decided to leave through the back

door. But when he saw Mr. Johnson and two other

individuals that he did not recognize, he quickly

closed and locked the back door. Hundley testified

that he then changed out [**22] of the white Hilfiger

polo shirt and t-shirt he was wearing and put them

in his gym bag, which he dropped on the dining room

floor. The next thing he remembered was waking up

after having passed out. Hundley said he also passed

out in the ambulance.

[*P52] On cross-examination, Hundley denied

answering the door to Koch around 2:00 a.m.

Hundley testified that he had never seen Koch until

she testified in his trial and that the man she

31a

described was the same person that he had just

described that he had seen. He also admitted that he

did not give the police the details of his version of

events, including his claim that Mr. and Mrs.

Johnson conspired to murder Huff.

[*P53]

The defense also introduced expert

testimony from Dr. Alfred Elsworth Staubus, an

emeritus faculty member at the Ohio State

University College of Pharmacy, to suggest that

someone used chloroform to incapacitate Hundley on

November 6. Dr. Staubus testified about "the use of

chloroform to temporarily incapacitate a person." He

explained that although Hundley's toxicology report

from November 6, 2015, did not note the presence of

chloroform, hospitals do not test for it. He also noted

that Hundley's blood-alcohol level was .105, which

[**23] is above the legal limit for driving of .080.

According to Dr. Staubus, .105 is not a particularly

high blood-alcohol level and would not have rendered

Hundley unconscious. Dr. Staubus averred that

chloroform begins in liquid state but is so volatile

that it immediately vaporizes and emits aerosol

fumes. He testified that it would not be inconsistent

for chloroform to be present on clothing worn by an

individual who is using it or by the person against

whom the chloroform was administered. However,

Dr. Staubus testified that holding a rag soaked in

chloroform over the nose and mouth of a person can

cause incapacitation.

II. PROCEDURAL HISTORY AND SENTENCING

32a

[*P54] A grand jury indicted Hundley on five

counts. Count One charged Hundley with

aggravated murder with prior calculation and design

(R.C. 2903.01(A)), Count Two charged him with

attempted murder (R.C. 2903.02/2923.02(A)), Count

Three charged him with felonious assault (R.C.

2911.02(A)(1)(d)), and Counts Four and Five charged

him with aggravated arson (R.C. 2909.02(A)). The

aggravated-murder count included one deathpenalty specification under R.C. 2929.04(A)(5), which

alleged that Hundley had committed the murder of

Huff as part of a course of conduct involving the

purposeful killing of or attempt to kill two or [**24]

more individuals.

[*P55] He pleaded not guilty to all counts, including

the capital specification, and the case was tried

before a jury. The court denied Hundley's motion for

acquittal following the state's case and his renewed

request for acquittal before submitting the case to

the jury. Within four hours, the jury returned guilty

verdicts on all counts and the capital specification.

[*P56] The court granted Hundley's oral motion to

represent himself for purposes of mitigation, and the

mitigation hearing was held on May 30, 2015. The

state offered into evidence all the exhibits from the

guilt phase, except an exhibit that was a picture of

Huff, and then rested. Hundley then rested without

presenting any evidence.

[*P57]

The jury unanimously recommended a

33a

sentence of death as to Count One, and the court

accepted the recommendation and imposed the death

sentence. As to the noncapital offenses, the court

merged Count Two with Count Three, and Count

Four with Count Five, and then sentenced Hundley

to 11 years' imprisonment for the attempted-murder

conviction in Count Two and to a consecutive 11-year

prison term for the aggravated-arson conviction in

Count Four.

III. ANALYSIS

A. Sufficiency of the evidence

[*P58] In [**25] proposition of law No. 1, Hundley

argues that the state failed to prove beyond a

reasonable doubt that he committed the aggravated

murder of Huff with prior calculation and design.

Hundley argues that there was a lack of sufficient

evidence to establish prior calculation and design.

[*P59] HN1 "In reviewing the sufficiency of the

evidence to support a criminal conviction, we must

determine 'whether, after viewing the evidence in

the light most favorable to the prosecution, any

rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.'

(Emphasis sic.)" State v. Martin, 151 Ohio St.3d 470,

2017-Ohio-7556, 90 N.E.3d 857, ¶ 109, quoting

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979). "'Proof beyond a reasonable

doubt' is proof of such character that an ordinary

34a

person would be willing to rely and act upon it in the

most important of the person's own affairs." R.C.

2901.05(E). A sufficiency challenge asks whether the

evidence adduced at trial "is legally sufficient to

support the jury verdict as a matter of law." State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954

N.E.2d 596, ¶ 219. In applying this well-known

standard, we are cognizant of the jury's

responsibility to "fairly * * * resolve conflicts in the

testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate

facts." Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61

L.Ed.2d 560. And we recognize that the jury is the

sole [**26] judge of a witness's credibility. State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

[*P60] HN2 Proof of "prior calculation and design"

requires proof of "a scheme designed to implement

the calculated decision to kill." State v. Cotton, 56

Ohio St.2d 8, 11, 381 N.E.2d 190 (1978). "The

amount of care or time that the defendant spends in

planning and analyzing the crime are not critical

factors in themselves; however, they '"must amount

to more than momentary deliberation."'" State v.

Jones, 91 Ohio St.3d 335, 345, 2001- Ohio 57, 744

N.E.2d 1163 (2001), quoting State v. Taylor, 78 Ohio

St.3d 15, 19, 1997- Ohio 243, 676 N.E.2d 82 (1997),

quoting the 1973 Legislative Service Commission

comments to R.C. 2903.01.

[*P61] HN3 Three factors guide our review of

Hundley's claim that the evidence was legally

insufficient to prove prior calculation and design: "(1)

35a

Did the accused and victim know each other, and if

so, was that relationship strained? (2) Did the

accused give thought or preparation to choosing the

murder weapon or murder site? (3) Was the act

drawn out or 'an almost instantaneous eruption of

events'?" Taylor at 19, quoting State v. Jenkins, 48

Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976).

We have "never set forth a bright-line test for

discerning the presence or absence of prior

calculation and design but instead undertake[ ] a

unique analysis of the facts of each case." State v.

Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776

N.E.2d 26, ¶ 56. The evidence relevant to each

Taylor factor is set forth below.

1. Did the accused and the victim know each other,

and was the relationship strained?

[*P62] Undisputed evidence demonstrates [**27]

that Huff and Hundley knew each other. Huff had a

child with Hundley's brother, and according to

Hundley, they had known each another for

approximately eight years. It was this relationship

that caused Huff to offer Hundley a room in her

home when Hundley's living situation with his

brother was not working. At the time of Huff's

murder, Hundley had been living with Huff for three

to four weeks.

[*P63] Hundley told investigators that he and Huff

had a good relationship, but that evidence was

controverted by the testimony of Heard and Mrs.

36a

Johnson. Heard testified that Huff's demeanor

changed after Hundley moved in and that the

change was particularly noticeable when Hundley

was around. Due to Hundley's controlling nature,

Huff would hold "a lot of stuff in" and was not as

open with Heard as she had previously been. When

Hundley was not in the house, Huff expressed her

frustration with the situation to Heard. Hundley's

presence in the house made Heard very

uncomfortable and also was the cause for the loss of

other caretakers. On the last evening Heard saw

Huff alive, Heard made sure that Huff had access to

her cell phone and her grabbing aid, which Heard

testified was not bent when she left [**28] the

house. At Huff's request, Heard placed the cash from

Huff's monthly disability check underneath her

thighs, between the bedsheet and Huff's body. And

just before she left for the evening Heard gave Huff

her personal cellphone number, even though it was

against company policy. According to Heard, she had

felt that day that something wasn't right or was

going to happen. Heard felt uncomfortable because

Hundley "was in the home * * * that night and he

was drinking."

[*P64]

Mrs. Johnson testified that Huff and

Hundley generally got along but that their

relationship was strained. Hundley argues that an

objection to Mrs. Johnson's testimony about the

strained relationship was sustained at trial. He is

correct that the court sustained an objection to one

question: "Around November 6 when this happened,

had their relationship become strained?" However,

37a

Mrs. Johnson later testified that the relationship

had become strained in response to a different

question that was asked without an objection. Mrs.

Johnson also testified that Hundley expressed his

belief that Huff and her family just "weren't into

him." Mrs. Johnson explained that her impression of

this statement was that her family was not including

[**29] him: "I guess that's what he felt maybe." Mrs.

Johnson also testified that during Hundley's attack

on her that he stated that he killed Huff because

Huff had been disrespecting his brother by allegedly

wanting to have sex with him.

2. Did Hundley give thought or preparation to

choosing the murder weapon or murder site?

[*P65] The evidence demonstrates that Huff had a

progressive form of multiple sclerosis that prevented

her from walking. The nurse aides needed to use a

Hoyer lift to transfer her from her bed to her

wheelchair. Wheelchair bound, she received daily

care and assistance from nurse aides. Huff relied on

a medical-alert necklace if there was an emergency

and a nurse aide was not present; when the alert

was pressed, an ambulance was dispatched and Mrs.

Johnson was called.

[*P66]

Hundley acknowledged that Huff was

severely disabled and that she was unable to walk or

dress herself; he also testified that he was present

when a nurse aide moved Huff between her bed and

her wheelchair with a Hoyer lift. He returned to the

38a

house not long after Heard left knowing Huff would

be alone and physically incapable of leaving.

3. Was the act drawn out or

instantaneous eruption of events?"

"an

almost

[*P67] HN4 The [**30] final Taylor factor requires

the evidence to demonstrate that there was more

than just a "momentary" thought of deliberation.

Taylor, 78 Ohio St.3d at 22, 676 N.E.2d 82. Hundley

introduced the testimony of Dr. Staubus who stated

that chloroform is used to temporarily incapacitate a

person. The doctor also testified that while

chloroform is so volatile that it immediately

evaporates, it is not inconsistent for chloroform to be

present on the clothing of the person using it or the

person against whom it was administered. Christa

Rajendram testified that Hundley's polo shirt and tshirt tested positive for chloroform.

[*P68] The evidence also shows that Hundley

inflicted numerous blunt-force injuries on Huff's

body while she was alive. Huff was severely beaten

on her face and head and on her trunk and

extremities, causing rib fractures, massive internal

bleeding, and bruising on the front and back of her

upper arms and chest, and she had several defensive

wounds on her forearms and hands. Dr. Felo rejected

the assertion that the beating was instantaneous;

rather, he determined that "[t]he beating t[ook] a

while because of the amount of blood that [wa]s

accumulated in her body and the fact that the

39a

bruising [wa]s developing."

[*P69] After the [**31] severe and extensive

beating Hundley inflicted upon Huff, Hundley then

strangled Huff with a black cord wrapped tightly

around her neck. Dr. Felo referred to photographs

taken during the autopsy and pointed out that there

was an indentation on Huff's neck caused by the

ligature. He noted that the cord "was tight enough to

leave an impression." Moreover, Dr. Felo stated

strangulation was also indicated by the evidence of

petechial hemorrhages on the whites of Huff's eyes.

He opined that it would have taken "several

minutes, up to hours" for Huff to have died from the

injuries caused by the beating, although "[t]he

strangulation would [have been] seconds to minutes

as far as a timeframe." He testified that her death

"certainly was not an immediate death." Dr. Felo's

expert opinion, to a reasonable degree of medical

certainty, was that Huff's death was not

instantaneous and that Huff was already dead when

the fire occurred.

[*P70] Huff's medical-alert necklace was activated

at 2:01 a.m. Koch, one of the EMTs who responded to

the emergency call, testified that a tall AfricanAmerican man—who the EMT later identified as

Hundley—opened the front door. According to Koch,

the man was calm and polite [**32] and did not

seem anxious.

[*P71] Mrs. Johnson arrived after the EMTs had

left. She testified that she unlocked the bottom lock

40a

and that the top lock was uncharacteristically

locked. Upon entering the house, she smelled

gasoline and found Hundley inside with a gasoline

can. Hundley did not leave; he instead waited for

Mrs. Johnson to return from placing the gasoline can

in the attached garage and then attacked her,

striking her in the head with a hammer. And again,

after attacking Mrs. Johnson, Hundley did not leave

but changed out of his bloody clothes and placed

them in his gym bag.

[*P72] Construing the foregoing evidence in a light

most favorable to the prosecution, there is sufficient

evidence to support the Taylor factors and the jury's

verdict that Hundley committed aggravated murder

with prior calculation and design. Despite Hundley's

testimony that he and Huff had a good relationship,

the jury also heard the testimony from Heard and

Mrs. Johnson to the contrary. It was within the

province of the jury when considering the conflicts in

the testimony to weigh the credibility of the

witnesses and reject Hundley's version of the

relationship. From Heard's and Mrs. Johnson's

testimony, the jury [**33] could have reasonably

concluded that the relationship between Hundley

and Huff was strained. Hundley had a controlling

nature and Huff's demeanor changed when Hundley

was around. And Huff expressed her frustration with

the living situation when he was not present. It was

concern for Huff's welfare, because of the strain in

the relationship with Hundley, that caused Heard to

violate her employer's policy and provide Huff with

her cell-phone number. Moreover, the jury could

41a

have inferred that Huff did not trust Hundley as she

had Heard place her cash under her thigh when

Heard left for the evening. The strain in the

relationship was also shown by Mrs. Johnson's

testimony regarding Hundley's animosity toward her

family.

[*P73] The jury reasonably could have found that

Hundley gave thought to the murder site and to the

means by which he would kill Huff. Hundley waited

until the nurse aide had left for the evening and

Huff was alone before returning to the house. He

knew that Huff was unable to defend herself and

that she was helpless. She was debilitated by

multiple sclerosis and depended upon a nurse aide

for the essentials of daily living, including using a

Hoyer lift to get from her bed to [**34]

her

wheelchair, which she relied on for mobility. The

medical-alert necklace was her sole lifeline in the

event of an emergency when the nurse aide was not

at the house.

[*P74] The evidence is overwhelming that the

attack on Huff was not an instantaneous eruption of

events. First, it was reasonable for the jury to infer

from the presence of chloroform on both of Hundley's

shirts that Hundley sought to incapacitate Huff. The

testimony of Dr. Felo established that the beating

Hundley inflicted upon Huff was lengthy, severe, and

extensive and that Huff had time to try to defend

against the brutal attack. Huff was still alive after

the savage beating but instead of stopping, Hundley

made the conscious choice to strangle her tightly

42a

around the neck with a black cord. The nature and

extent of the injuries established that Huff's murder

was not immediate but was carried out over a period

of time.

[*P75] Further, the evidence demonstrates that

Hundley was determined to follow through on his

murderous course of action. The jury reasonably

could have found that Hundley locked both the top

and bottom door locks after the EMTs left in order to

attack Huff and prevent anyone from entering the

house and coming [**35] to Huff's aid. He also

obtained gasoline and poured it on Huff, even though

she was dead, and set her body on fire, resulting in

thermal injuries and her skin sloughing off, to cover

up the evidence of the murder. See State v. Young,

7th Dist. Belmont No. 96-BA-34, 1999 Ohio App.

LEXIS 4365, 1999 WL 771070 (evidence that victim's

body was partially concealed was relevant fact to

finding of prior calculation and design); State v.

Jackson, 8th Dist. Cuyahoga No. 44401, 1982 Ohio

App. LEXIS 15382, 1982 WL 5955 (evidence that

defendant wiped clean the victim's doorknobs after

the murder supported jury's finding of prior

calculation and design). Further, Hundley could have

chosen to leave the house after beating and

strangling Huff; he instead attacked Mrs. Johnson.

He then could have again chosen to leave the house,

but instead he changed out of his bloody clothes and

placed them in his gym bag.

[*P76] HN5 We have found sufficient evidence of

prior calculation and design in cases in which a

43a

murder was not instantaneous "but instead w[as]

carried out over a period of time." Franklin, 97 Ohio

St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, at ¶ 60. We

have likewise found that prior calculation and design

was proved when the evidence established that

despite having time to abandon a murderous attack,

the

defendant

demonstrated

an

"apparent

determination to follow through on a specific course

of action," [**36] which supported a finding that he

had previously "adopted a plan to kill." State v. Toth,

52 Ohio St.2d 206, 213, 371 N.E.2d 831 (1977),

modified on other grounds, State v. Muscatello, 55

Ohio St.2d 201, 378 N.E.2d 738 (1978), paragraph

one of the syllabus; see also Taylor, 78 Ohio St.3d at

21, 676 N.E.2d 82, quoting State v. Taylor, 8th Dist.

Cuyahoga No. 65711, 1995 Ohio App. LEXIS 4998,

1995 WL 663267, * 5 (Nov. 9, 1995) (prior calculation

and design shown by evidence that Taylor "'made a

conscious decision to walk over to where [the injured

victim] was crawling face down on the floor and shot

him four more times'").

[*P77] When viewed in a light most favorable to the

prosecution the evidence demonstrates that Huff's

death was the result of a well-thought-out plan and

the attack was drawn out. Hundley could have

chosen to abandon his course of action at any point

but failed to do so. See State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 45

(HN6 "Pursuit of a wounded, helpless victim also has

been held to be evidence of prior calculation and

design"). There was sufficient evidence that

Hundley's actions "went beyond a momentary

44a

impulse and show[ed] that he was determined to

complete a specific course of action." Id. at ¶ 46.

[*P78] Viewing the evidence in a light most

favorable to the prosecution, a jury could rationally

find beyond a reasonable doubt that Hundley

murdered Huff with prior calculation and design. We

therefore reject Hundley's first proposition of law.

B. Manifest weight of the evidence

[*P79] Hundley also [**37] contends, in proposition

of law No. 2, that his aggravated-murder conviction

was against the manifest weight of the evidence.

[*P80] HN7 A verdict can be against the manifest

weight of the evidence even though legally sufficient

evidence supports it. State v. Robinson, 162 Ohio St.

486, 487, 124 N.E.2d 148 (1955). For a manifestweight challenge, "'[t]he court, reviewing the entire

record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the

conviction must be reversed and a new trial

ordered.'" State v. Thompkins, 78 Ohio St.3d 380,

387, 1997- Ohio 52, 678 N.E.2d 541 (1997), quoting

State v. Martin, 20 Ohio App.3d 172, 175, 20 Ohio B.

215, 485 N.E.2d 717 (1st Dist.1983). A manifestweight challenge can be successful "'only in the

exceptional case in which the evidence weighs

45a

heavily against the conviction.'" Id., quoting Martin

at175.

[*P81] Hundley contends that the state's evidence

"satisfies none of the Taylor factors" and therefore

that the jury lost its way when it found that he

purposely murdered Huff with prior calculation and

design. See Taylor, 78 Ohio St.3d at 19, 676 N.E.2d

82. We do not find Hundley's argument persuasive.

As explained above, we disagree with Hundley and

instead find that all three Taylor factors were met in

this case.

[*P82] This is not an "'exceptional case in which the

[**38]

evidence weighs heavily against the

conviction.'" Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175,

485 N.E.2d 717. Proposition of law No. 2, therefore,

lacks merit.

C. Request for standby counsel and waiver of counsel

[*P83] During the suppression and mitigation

hearings, Hundley waived counsel and represented

himself. Hundley argues, in proposition of law No. 4,

that the trial court violated his constitutional rights

when it denied him standby counsel for the

suppression hearing. And in proposition of law No. 3,

Hundley maintains that the trial court erred by

allowing him to waive counsel for the mitigation

hearing despite his "questionable mental health

history" and despite that he was in a "fit of pique"

46a

when he requested to represent himself.

1. Relevant facts

[*P84] Hundley was arraigned on November 17,

2015, and entered a plea of not guilty. At a pretrial

hearing on December 9, Hundley told the court that

he wished to fire his appointed attorneys. The court

explained that he had no right to fire his attorneys,

denied Hundley's request, and ordered his attorneys

to notify the court if the attorney-client relationship

had broken down beyond repair. In January 2016, at

another pretrial, defense counsel informed the court

that on Hundley's behalf, [**39] they had filed a

motion for a competency and sanity evaluation, and

pending the results, they might enter a not-guiltyby-reason-of-insanity plea. At the next hearing on

April 13, 2016, defense counsel sought to withdraw

from representation because it had "become readily

apparent" that the attorney-client relationship had

"completely broken down." Counsel also informed the

court that the competency and sanity reports were

complete and that Hundley had been found to be

sane and competent to stand trial. One week later,

the trial court granted defense counsel's motion to

withdraw and appointed two new attorneys to

represent Hundley.

[*P85] At a hearing on July 13, 2016, Hundley

informed the court that he did not want to continue

with his second set of attorneys. The court denied

this request and ordered Hundley to be placed at the

47a

Twin Valley Behavioral Healthcare—Timothy B.

Moritz Forensic Unit ("TVBH") for observation and a

second competency evaluation.

[*P86] The court reconvened on December 16, 2016,

for a competency hearing. After testimony, the court

determined that Hundley was competent. At that

juncture, Hundley told the court that he was

"thinking about representing [him]self." A brief

discussion [**40] ensued between the court and

Hundley regarding the purpose of standby counsel

and the fact that before he could waive his right to

counsel, the court would have to ask him 52

questions to ensure that he understood what he was

getting himself into." The court agreed to address

the issue of Hundley's waiver of counsel at a

January 2017 pretrial hearing.

[*P87] On January 11, 2017, Hundley told the court

that his attorneys had answered all of his questions

and that he wanted to keep his current counsel.

Hundley remained satisfied with his counsel for the

next seven months, which the court confirmed at

many of the hearings during that time period.

[*P88] On August 7, 2017, defense counsel informed

the court that Hundley wanted to represent himself

and that Hundley was prepared to go forward with

the suppression hearing scheduled for that day.

Hundley confirmed counsel's statement, telling the

court that he wanted to represent himself. The trial

court questioned Hundley regarding his request to

waive counsel. The court's questions focused on

48a

Hundley's understanding of his right to counsel, his

lack of a legal education, his familiarity with the

criminal-justice system and the rules applicable to a

criminal [**41] trial, and the possibility that the

jury would negatively perceive his lack of an

attorney.

[*P89] The court explored other likely pitfalls of

self-representation,

asking

whether

Hundley

understood that he would be held to the same

standard as if he were a licensed attorney, that the

court would not function as his lawyer, and that he

would be waiving certain appellate claims by

representing himself. The court also inquired into

his awareness of any applicable defenses to the

charges. The court ensured that Hundley understood

the role of standby counsel. The trial court briefly

informed him of the charges he was facing, the

potential sentences should he be found guilty, and

his constitutional right to remain silent. Ultimately,

the court accepted Hundley's request to waive

counsel, and he represented himself for the

suppression hearing.

[*P90] Yet when the court presented Hundley with

a written waiver-of-counsel form after the

suppression hearing, Hundley indicated that he had

changed his mind and wanted counsel to represent

him. The court accepted his withdrawal of the

waiver and denied defense counsel's request to

reopen the suppression hearing.

[*P91] At a hearing on September 6, 2017, Hundley

49a

again [**42] asked to waive his right to counsel.

However, during the waiver colloquy, the court

agreed to appoint new defense counsel from a

different county, and Hundley withdrew his waiver.

But before the hearing ended, Hundley changed his

mind again, and after conducting a waiver colloquy,

the court found that he had knowingly, intelligently,

and voluntarily waived his right to counsel.

[*P92] The next day, the court held a hearing and

told Hundley that an attorney from the Ohio Public

Defender's Office was able to represent him.

Hundley agreed to meet with the new attorney. At

the next hearing on September 18, Hundley told the

court that he still wished to represent himself

despite having met with the assistant public

defender. The court reaffirmed that his prior counsel

were considered standby counsel and would be

available in that capacity, unless he withdrew the

waiver.

[*P93]

Hundley represented himself until

November 1, 2017, when the court appointed an

assistant public defender, Greg Meyers, to act as

lead counsel, and one of Hundley's prior attorneys,

Doug Taylor, to act as second chair. Meyers and

Taylor represented Hundley through the trial phase,

up until the jury reached a verdict. At most of [**43]

the status hearings between November 2017 and the

beginning of the trial, the court verified that

Hundley was continuing to work well with Meyers

and Taylor; each time, Hundley said that he was.

50a

[*P94] On May 21, 2018, the jury returned its

verdict, finding Hundley guilty of all charges and the

course-of-conduct specification. On May 30, the day

the mitigation hearing was scheduled to begin,

Hundley informed the trial court that he wanted to

represent himself for the mitigation hearing. The

trial court told Hundley that his request was

untimely, but when Hundley pressed the issue and

stated that he was prepared to move forward with

the mitigation hearing, the court responded: "That's

fine. You know what, I will * * * [a]nd when you get

convicted of death, I don't want to hear about it."

[*P95] At the request of the prosecutor and defense

counsel, the court conducted a waiver colloquy. The

court went through the same questions and

warnings as it had during the waiver colloquy prior

to the suppression hearing. Hundley represented

himself through the mitigation hearing. He did not

offer any mitigating evidence and declined to give an

unsworn statement, but he did give a closing

argument.

2. Analysis [**44]

[*P96]

"'HN8 The Sixth Amendment * * *

guarantees that a defendant in a state criminal trial

has an independent constitutional right of selfrepresentation and that he may proceed to defend

himself without counsel when he voluntarily, and

knowingly and intelligently elects to do so.'" (Ellipsis

in Neyland.) State v. Neyland, 139 Ohio St.3d 353,

51a

2014-Ohio-1914, 12 N.E.3d 1112, ¶ 71, quoting State

v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976),

paragraph one of the syllabus. Therefore, in any

criminal case involving a serious offense, "when a

criminal defendant elects to proceed pro se, the trial

court must demonstrate substantial compliance with

Crim.R. 44(A) by making a sufficient inquiry to

determine whether the defendant fully understood

and intelligently relinquished his or her right to

counsel." State v. Martin, 103 Ohio St.3d 385, 2004Ohio-5471, 816 N.E.2d 227, paragraph two of the

syllabus.

[*P97] HN9 The trial court must ensure that the

defendant is "made aware of the dangers and

disadvantages of self-representation," Faretta v.

California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975), and that "'he [knew] what he

[was] doing and his choice [was] made with eyes

open,'" id., quoting Adams v. United States ex rel.

McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed.

268 (1942). "The determination of whether there has

been an intelligent waiver of right to counsel must

depend, in each case, upon the particular facts and

circumstances surrounding that case, including the

background, experience, and conduct of the accused."

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

82 L.Ed. 1461 (1938).

a. Request for standby counsel for suppression

hearing

52a

[*P98] Hundley [**45] contends, in his fourth

proposition of law, that the trial court denied him

standby counsel for the suppression hearing and

thereby violated his right to counsel under both the

state and federal Constitutions.1Link to the text of

the note

[*P99] HN10 We have "recognized that '[o]nce the

right to counsel is properly waived, trial courts are

permitted to appoint standby counsel to assist the

otherwise pro se defendant.'" (Emphasis added.)

State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio1594, 63 N.E.3d 93, ¶ 50, quoting Martin, 103 Ohio

St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 28.

Therefore, there is no independent right, under state

or federal law, to standby counsel in the event that a

criminal defendant chooses self-representation. See

State v. Jackson, 1st Dist. Hamilton No. C-180160,

2019-Ohio-2933, ¶ 9 ("while trial courts may well

decide to appoint standby counsel, defendants do not

have an automatic right entitling them to standby

counsel").

[*P100] In any event, the record does not support

Hundley's claim that the trial court denied him

standby counsel for the suppression hearing. On the

contrary, the trial court ensured that Hundley

understood the purpose of standby counsel, and

Hundley conferred with defense counsel prior to and

immediately after the suppression hearing.

[*P101]

We therefore reject Hundley's fourth

proposition of law.

53a

b. Self-representation for the mitigation hearing

[*P102] In his third proposition of law, Hundley

contends [**46] that the court erred by granting his

request to waive counsel for the mitigation hearing

while he was "(1) in a fit of pique (2) likely under the

duress of a personality disorder and (3) under the

influence of a fair amount of goading and sarcasm

from the trial court."

[*P103] HN11 A capital defendant must make a

timely and unequivocal request if he or she wishes to

waive counsel because "'[w]hile the right to counsel

attaches unless affirmatively waived, the right to

self-representation does not attach until asserted.'"

State v. Perry, 9th Dist. Summit No. 25271, 2011Ohio-2242, ¶ 11, quoting Sandoval v. Calderon, 241

F.3d 765, 774 (9th Cir.2000). And because "courts

[must] indulge in every reasonable presumption

against waiver" of the right to counsel, a strict

standard applies when considering the sufficiency of

a defendant's invocation of the right to selfrepresentation. Brewer v. Williams, 430 U.S. 387,

404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). An

unequivocal request may not be a "momentary

caprice or the result of thinking out loud," Adams v.

Carroll, 875 F.2d 1441, 1445 (9th Cir.1989), "or the

result of frustration," Neyland, 139 Ohio St.3d 353,

2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 73. Whether a

defendant voluntarily, intelligently, and knowingly

waived his right to counsel is "determined by the

54a

totality of circumstances." State v. Moore, 81 Ohio

St.3d 22, 31, 1998- Ohio 441, 689 N.E.2d 1 (1998).

Whether a defendant's waiver of counsel was

knowing, voluntary, and intelligent necessarily

requires a thorough review of the record.

[*P104] Hundley asserts that his request to [**47]

waive counsel for the mitigation hearing came

"immediately following a guilty verdict in a death

penalty [case]" and that the trial court should

therefore not have granted it. But the record

contradicts Hundley's contention; he asked to

represent himself on the day of the mitigation

hearing, nine days after the verdict. By then,

Hundley had been represented by counsel

throughout most of the pretrial proceedings and the

entire trial phase, but he had also repeatedly sought

to represent himself in earlier stages of the

proceedings and was therefore familiar with the

warnings and admonitions against waiving counsel.

[*P105] Notwithstanding the earlier colloquies, the

trial court conducted a waiver colloquy with Hundley

prior to the mitigation phase. The court again

explained to Hundley that he had a right to counsel;

that he faced possible sentences including the death

penalty and life without parole; that he would waive

certain appellate claims by waiving counsel for

mitigation, and that he would be held to the same

standard as any attorney. The court ensured that

Hundley

understood

the

difficulties

and

disadvantages of self-representation, that the court

would not function as his lawyer, and [**48] that the

55a

jurors may have a negative reaction to Hundley

representing himself. After these advisements,

Hundley told the court that his decision was freely

made and reflected his personal desire. Hundley

declined the court's offer to clarify any of the

advisements or to answer any questions. Hundley

signed a written waiver, and the court appointed

defense counsel to act as standby counsel.

[*P106] The transcript of the court proceedings

prior to the mitigation hearing corroborates the fact

that Hundley was not equivocal or emotional when

he asked to waive counsel:

MR. MEYERS: I would ask the court to allow Mr.

Hundley to address you directly for a moment.

THE COURT: That's fine.

HUNDLEY: Yes, Your Honor. At this time I would

like to represent myself.

***

THE COURT: It's not timely.

HUNDLEY: It's not timely?

THE COURT: Yes.

HUNDLEY: It's my constitutional right. I would

like to represent myself for the second phase.

56a

[*P107] Hundley's argument that his request was

not knowing, intelligent, and voluntary because he

was "likely under the duress of a personality

disorder" and was goaded by the trial court lacks

merit. Dr. Delaney Smith, M.D., the psychiatrist who

performed one of Hundley's pretrial competency

[**49]

evaluations, testified that Hundley's

antisocial-personality disorder did not affect his

competency or decisionmaking abilities. Dr. Smith

testified that "people with personality disorders still

have a conscious choice over how they interact." The

record does not support the claim that a severe

mental disorder or illness had any effect on

Hundley's requests to waive counsel.

[*P108] Finally, Hundley's claim that the trial

court's conduct during the hearing goaded him into

waiving counsel is specious. When Hundley initially

asked to waive counsel for mitigation, the trial court

told him that his request was untimely. Undeterred,

Hundley reasserted his request, to which the court

responded, "That's fine. You know what, I will." And

after Hundley expressed satisfaction with the court's

decision to grant his request, the court stated: "And

when you get convicted of death, I don't want to hear

about it." The trial court's comments, while

inadvisable, did not change Hundley's position on

self-representation.

[*P109] The record contradicts Hundley's attempt

to portray his request to waive counsel for the

mitigation hearing as an emotional response to the

jury's verdict, a result of his antisocial-personality

57a

[**50] disorder, and a product of the trial court's

conduct. Hundley was neither emotional nor

complaining about counsel when he made his

request, and he did not respond at all to the trial

court's sarcastic comments, showing his emotional

control. More than a week had passed between the

jury's verdict and Hundley's request, the jury was

not present during this discussion, the request was

not part of an inappropriate outburst, and Hundley

did not indicate that his request was due to

frustration with his counsel's conduct. See, e.g.,

State v. Baskin, 3d Dist. Allen No. 1-18-23, 2019Ohio-2071, ¶ 17, 137 N.E.3d 613 (holding that a

request to waive counsel was not unequivocal

because Baskin had "interjected in front of the jury"

that he wanted to fire counsel and because he had

"repeatedly made inappropriate responses to the

trial

court's

questions"

regarding

selfrepresentation); see also State v. Steele, 155 Ohio

App.3d 659, 2003-Ohio-7103, 802 N.E.2d 1127, ¶ 20

(defendant's requests for self-representation "were

more in the name of impulsive acts expressing

frustration with his first counsel than unequivocal

requests to represent himself").

[*P110]

We hold that Hundley knowingly,

intelligently, and voluntarily waived his right to

counsel for his mitigation hearing, and we reject

Hundley's third proposition [**51] of law.

D. Fundamental fairness of the mitigation hearing

58a

[*P111] In his fifth proposition of law, Hundley

argues that the trial court's comments prior to the

mitigation hearing were facetious and rendered the

mitigation hearing fundamentally unfair.

[*P112] HN12 A capital sentencing hearing is a

critical stage of any criminal proceeding and "must

satisfy the requirements of the Due Process Clause."

Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197,

51 L.Ed.2d 393 (1977). A sentencing hearing fails to

satisfy a criminal defendant's right to due process

when the trial court imposes a sentence "on the basis

of assumptions concerning [the defendant's] criminal

record which were materially untrue." Townsend v.

Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 93 L.Ed.

1690 (1948). During the sentencing hearing in

Townsend, the trial court recounted Townsend's prior

convictions, and with regard to one prior offense,

remarked: "1937, receiving stolen goods, a

saxophone. What did you want with a saxophone?

Didn't hope to play in the prison band then, did

you?" Id. at 740. In fact, the charge of receiving the

stolen saxophone had been dismissed. The United

States Supreme Court granted Townsend's petition

for a writ of habeas corpus, finding that the trial

court's "facetiousness," id., was part of the reason

that Townsend was deprived of due process during

sentencing. Id.

[*P113] Hundley's reliance [**52] on Townsend is

misplaced. As we have acknowledged, "[t]he

Townsend court carefully narrowed the scope of the

fairness standard that it applied, saying, 'It is not

59a

the duration or severity of this sentence that renders

it constitutionally invalid; it is the careless or

designed pronouncement of sentence on a foundation

so extensively and materially false, which the

prisoner had no opportunity to correct * * * that

renders the proceedings lacking in due process.'"

(Ellipsis in Arnett.) State v. Arnett, 88 Ohio St.3d

208, 218, 2000- Ohio 302, 724 N.E.2d 793 (2000),

quoting Townsend at 741.

[*P114] In contrast, the trial court's statement here

—"When you get convicted of death, I don't want to

hear about it"—though careless, clearly had to do

with the court's feelings about Hundley waiving

counsel for the mitigation hearing and did not form

the basis of Hundley's death sentence. See State v.

Buggs, 7th Dist. Mahoning No. 06 MA 28, 2007Ohio-3148, ¶ 14 ("While [the court's] remarks were

very pointed, and in some lights, very harsh, no

error in sentencing occurred which arises solely from

these remarks"). The court did not make its remarks

in front of the jury, and the record indicates that the

court based its sentence on the appropriate factors

outlined in the Revised Code, after the jury

recommended

the

death

sentence.

[**53]

Accordingly, Hundley has not demonstrated that the

trial court's comments deprived him of due process

during sentencing. Therefore, we reject proposition

of law No. 5.

E. Sentencing Issues

60a

1. Supplemental jury instruction during sentencing

deliberations

[*P115] The jury deliberated regarding sentencing

for less than one day. After approximately four and

one-half hours,2Link to the text of the note the jury

sent a note to the court: "Jury is at a standstill. 11 of

12 in agreement. 12 unwilling to change." Without

consulting the parties, the trial court provided the

jury with a supplemental instruction, stating, "I am

going to inform you you must deliberate until 4:30.

At 4:30 we will stop and go to the hotel." As

instructed, the jury resumed deliberations. Just over

30 minutes elapsed before the jury returned to the

courtroom and told the court it had reached a verdict

recommending that Hundley be sentenced to death.

[*P116] Hundley argues, in his sixth proposition of

law, that the trial court erred when it ordered the

jury to continue deliberating after it indicated that it

was at a "standstill." Hundley did not object when

the trial court instructed the jury to resume

deliberations and therefore has waived all but plain

error. [**54] HN13 To prevail, Hundley must show

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

that the error affected his substantial rights. State v.

Barnes, 94 Ohio St.3d 21, 27, 2002- Ohio 68, 759

N.E.2d 1240 (2002) (an error affects substantial

rights only if it affected the outcome of the trial).

However, after reviewing the record, we conclude

that the trial court did not commit any error, plain or

otherwise.

61a

[*P117]

HN14 Because "Ohio's death-penalty

statutes do 'not contemplate the possibility of a hung

jury in the penalty phase of a capital murder trial,'"

State v. Mason, 82 Ohio St.3d 144, 166-167, 1998Ohio 370, 694 N.E.2d 932 (1998), quoting State v.

Springer, 63 Ohio St.3d 167, 170, 586 N.E.2d 96

(1992), we have approved of the use of supplemental

instructions when a capital jury has become

"irreconcilably deadlocked" on the question of

whether to recommend a death sentence, id. at 167.

Therefore, an instruction "urging jurors to continue

deliberations to try to reach a unanimous penalty

verdict * * * do[es] not violate due process." Id.,

citing Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct.

546, 98 L.Ed.2d 568 (1988).

[*P118] As we have explained, a supplemental

instruction to a deadlocked jury "must not be

coercive by stressing that the jury must reach a

verdict." State v. Howard, 42 Ohio St.3d 18, 23-24,

537 N.E.2d 188 (1989). In addition, "the

supplemental instruction must be balanced and

neutral. It cannot * * * single out jurors in the

minority and urge them to reconsider their position."

Id. at 24. The trial court's supplemental instruction

in this case merely [**55] directed the jury to

continue deliberations until 4:30 p.m.; the

instruction was balanced, neutral, and noncoercive

and therefore appropriate under Howard.

[*P119] Hundley argues that by indicating that it

was at a standstill, the jury in his case was

"irreconcilably deadlocked," requiring the trial court

62a

to instruct the jurors to consider only the available

life sentences. He is incorrect. HN15 "No exact line

can be drawn as to how long a jury must deliberate

in the penalty phase before a trial court should

instruct the jury to limit itself to the life sentence

options or take the case away from the jury * * *.

Each case must be decided based upon the particular

circumstances." Mason at 167. Although the jury

stated that it was at a standstill after only

approximately four and one-half hours of

deliberation, the circumstances do not show that the

jury was irreconcilably deadlocked. The trial court

properly

instructed

the

jury

to

continue

deliberations. Accordingly, Hundley has not

demonstrated any error, much less an error that

affected his substantial rights. We reject proposition

of law No. 6.

2. Request to consider mercy as a mitigating factor

[*P120] The jury sent the following question to the

court during deliberations [**56] on sentencing: "Is

mercy considered a mitigating factor under Ohio

law?" The trial court, without consulting counsel,

told the jury that mercy is not a mitigating factor. In

his seventh proposition of law, Hundley challenges

the trial court's response to the jury's question.

[*P121] HN16 We have held that "[p]ermitting a

jury to consider mercy, which is not a mitigating

factor and therefore [is] irrelevant to sentencing,

would violate the well-established principle that the

63a

death penalty must not be administered in an

arbitrary, capricious or unpredictable manner."

(Emphasis added.) State v. Lorraine, 66 Ohio St.3d

414, 417, 613 N.E.2d 212 (1993). Hundley

acknowledges Lorraine's unambiguous holding but

argues that the decision should be reexamined and

overruled. Despite Hundley's contentions, the trial

court's response to the question asked by the jury is

a correct statement of Ohio law.

[*P122] In Hundley's view, because Ohio is a

"weighing" state, an instruction on mercy is required

to foreclose constitutional error. HN17 A "weighing"

state refers to a state "in which the only aggravating

factors permitted to be considered by the [capital]

sentencer were the specified eligibility factors."

Brown v. Sanders, 546 U.S. 212, 217, 126 S.Ct. 884,

163 L.Ed.2d 723 (2006). By contrast, a nonweighing

state permits the jury to consider aggravating

factors [**57] different from, or in addition to, the

eligibility factors. Id. Yet Hundley cites Kansas v.

Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d

429 (2006), and Kansas v. Carr,

U.S. , 136 S.Ct.

633, 193 L.Ed.2d 535 (2016), to support this claim.

However, neither case involved this question nor

held that an instruction on considering mercy in

mitigation is required. And we have recently

considered the same arguments and rejected them.

See State v. Wilks, 157 Ohio St.3d 359, 2018-Ohio1562, 114 N.E.3d 1092, ¶ 179, 224.

[*P123]

Because Hundley has offered no

meritorious justification for departing from this

64a

settled law, proposition of law No. 7 lacks merit.

F. Constitutional and international-law challenges

[*P124] In proposition of law No. 10, Hundley

raises several constitutional challenges to the death

penalty and the statutes governing its imposition in

Ohio, including that they constitute cruel and

unusual punishment, violate his rights to due

process and equal protection, are arbitrary and

vague, burden the right to a jury, prevent adequate

appellate review, and violate international law and

treaties. We have consistently rejected each of these

arguments. See, e.g., State v. Kirkland, 140 Ohio

St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 106, 109110, 113, 116-117, 120; State v. Jenkins, 15 Ohio

St.3d 164, 168-173, 15 Ohio B. 311, 473 N.E.2d 264

(1984).

[*P125] In proposition of law No. 9, Hundley

contends that Ohio's death-penalty statutes violate

the Sixth Amendment right to a jury trial as

construed in Hurst v. Florida,

U.S.

, 136 S.Ct.

616, 193 L.Ed.2d 504 (2016). We have rejected this

argument. State v. Mason, 153 Ohio St.3d 476, 2018Ohio-1462, 108 N.E.3d 56. HN18 And the United

States Supreme Court has recently confirmed that

neither [**58] Hurst nor Ring v. Arizona, 536 U.S.

584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),

requires jury weighing of aggravating and mitigating

circumstances:

65a

[A] jury must find the aggravating circumstance

that makes the defendant death eligible. But

importantly, in a capital sentencing proceeding just

as in an ordinary sentencing proceeding, a jury

(opposed to a judge) is not constitutionally required

to weigh the aggravating and mitigating

circumstances or to make the ultimate sentencing

decision within the relevant sentencing range.

McKinney v. Arizona,

206 L.Ed.2d 69 (2020).

U.S.

, 140 S.Ct. 702, 707,

[*P126]

We therefore summarily overrule

proposition of law Nos. 9 and 10. See generally State

v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568

(1988), syllabus.

G. Cumulative error

[*P127] In his eighth proposition of law, Hundley

argues that cumulative error during the proceedings

requires this court to reverse his conviction and

grant him a new trial. But because Hundley has not

demonstrated that any error occurred during his

capital trial, his argument is not meritorious. See

State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio1942, 13 N.E.3d 1051, ¶ 148, quoting State v.

Garner, 74 Ohio St.3d 49, 64, 1995- Ohio 168, 656

N.E.2d 623 (1995) (cumulative-error doctrine does

not apply because the appellant cannot point to

"'multiple instances of harmless error'"). We reject

proposition of law No. 8.

66a

IV. INDEPENDENT SENTENCE EVALUATION

[*P128] HN19 We must independently review the

death

sentence

for

appropriateness

and

proportionality. R.C. 2929.05(A). In conducting this

review, we must [**59] determine whether the

evidence supports the jury's finding of aggravating

circumstances,

whether

the

aggravating

circumstances outweigh the mitigating factors, and

whether Hundley's death sentence is proportionate

to those affirmed in similar cases. Id. We consider

these issues de novo. State v. Adams, 144 Ohio St.3d

429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 272.

A. Aggravating Circumstance

[*P129]

The jury found Hundley guilty of

aggravated murder and the capital specification

associated with that charge. As an aggravating

circumstance, therefore, the jury considered that

Huff's murder "was part of a course of conduct

involving the purposeful killing of or attempt to kill

two or more persons." R.C. 2929.04(A)(5).

[*P130]

Sufficient evidence established that

Hundley attempted to murder Mrs. Johnson. Mrs.

Johnson's testimony regarding Hundley's assault on

her with a hammer and a knife and by dousing her

with alcohol to start a fire constitutes sufficient

evidence of attempted murder. Therefore, sufficient

67a

evidence supported the jury's findings that Hundley

murdered Huff as part of a course of conduct

involving the purposeful killing of or attempt to kill

two or more persons.

B. Mitigating Factors

[*P131] We must weigh the above aggravating

circumstance against any mitigating evidence about

"the nature [**60] and circumstances of the offense"

and Hundley's "history, character, and background."

R.C. 2929.04(B). HN20 In addition, we must consider

and weigh any evidence of the mitigating factors

specifically listed in R.C. 2929.04(B)(1) through (7).

1. Evidence at the mitigation hearing

[*P132] As discussed in connection with proposition

of law No. 3, Hundley represented himself at the

mitigation hearing and chose to offer no mitigating

evidence. He declined to make an opening statement

and waived his right to make an unsworn statement.

Although Hundley made a closing argument, he used

it to contest the state's evidence, accuse the state of

manipulating evidence, and deny that he murdered

Huff. In allocution, Hundley stated only that he

intended to appeal his conviction and death

sentence.

2. Mitigating evidence in the record

68a

[*P133] Although Hundley presented no evidence

during the mitigation hearing, under R.C.

2929.05(A), we "shall review and independently

weigh all of the facts and other evidence disclosed in

the record." The record in this case contains two

pretrial competency reports that were prepared in

order to assist the trial court in determining whether

Hundley was competent to stand trial. HN21 To

fulfill our duty under R.C. 2929.05(A), we will

consider an unsealed competency report [**61] that

is part of the record for any mitigating evidence

contained in it. State v. Clinton, 153 Ohio St.3d 422,

2017-Ohio-9423, 108 N.E.3d 1, ¶ 255.

a. Dr. Thomas G. Gazley's competency report

[*P134]

Pursuant to a trial-court order, on

February 4, 2016, at the Mahoning County Justice

Center, Thomas G. Gazley, Ph.D., evaluated Hundley

to determine whether he was competent to stand

trial. Dr. Gazley's report included information about

Hundley's family background.

[*P135] The report stated that Hundley was born

on October 8, 1969, in Washington, D.C., and lived

there most of his life. Hundley had two brothers, his

parents were married when he was born, and he did

not report any parental abuse or neglect. His father

died of a heart condition in 1991, and his mother

died from cancer in 2014. Hundley had never been

married, and to his knowledge, had no children.

69a

Hundley had family in Youngstown, Ohio, whom he

occasionally visited.

[*P136] Hundley dropped out of high school in the

tenth grade because, he claimed, he "was making too

much money as a drug dealer." He later earned a

high-school-equivalency certificate ("GED"), attended

community college, and became certified as an EMT

and as a heating, ventilation, and air-conditioning

technician. He worked as an EMT for a private

ambulance [**62] company in Washington, D.C.,

and later worked for a heating company.

[*P137] Hundley then graduated from a truckdriving school and started a transportation business

that he named after his mother. Although he

reported that the business was successful, he shut it

down in June 2015 and went to Youngstown. He

apparently intended to return to Washington, D.C.,

but he was convicted in Ohio on a falsification charge

and a misdemeanor drug offense. He was serving the

jail sentence imposed for those crimes at the time of

Dr. Gazley's evaluation.

[*P138] Hundley had a prior criminal record both

as a juvenile and an adult. He reported that at a

very young age, he helped his brother in a breaking

and entering. He was also charged as a juvenile for

selling drugs and was placed on probation. In 2000,

Hundley was convicted in Washington, D.C., of a sex

offense that he described as nonconsensual "sexual

touching" and was sentenced to 2 years in prison. He

served 14 months followed by 2 years of probation.

70a

[*P139] Hundley had no physical limitations, and

Dr. Gazley reported that during the evaluation,

Hundley was in good behavioral control, he

cooperated with the evaluation, and he was

generally polite. He reported no history [**63] of

treatment for or diagnosis of mental illness, but he

did state that his mother had been diagnosed with

schizophrenia and that his older brother had

something, that he was a menace, and that he had

been locked up a lot.

[*P140] During the evaluation, Hundley spoke in a

clear and coherent manner, gave "goal directed and

relevant" responses to questions, and did not display

any disassociation or delusional themes. According to

Dr. Gazley, "[t]here was no current evidence of

thought disorder either in form or in content."

Hundley's "emotional expression was full range and

it was mood congruent," and he reported no

instances of depression and no suicidal ideation or

attempts. Hundley did not experience any

hallucinations, current or historical, and was

oriented to person, place, time, and situation. He

was not distracted during the evaluation, and he

displayed a good memory for recent and remote

events.

[*P141] Dr. Gazley estimated that Hundley's verbal

intelligence was average, noting that Hundley had

completed his GED and taken classes at a

community college. Dr. Gazley concluded that

Hundley presented no current symptoms of mental

71a

illness that would interfere with his ability to

participate in the [**64] legal process, that he was

not intellectually impaired, and that he was in good

behavioral control.

b. Dr. Smith's evaluation and report

[*P142] On September 22, 2016, pursuant to the

trial court's order, Hundley was admitted to TVBH

for evaluation of his mental condition and

competency. See R.C. 2945.371. HN22 R.C. 2945.371,

among others, governs "the procedures for

evaluating the mental condition of a defendant who

has raised the issue of competency or entered a plea

of [not guilty by reason of insanity]." State v. Harris,

142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256,

¶ 23. On October 14, 2016, Dr. Smith evaluated

Hundley to assess his mental status and his capacity

to understand the nature and objectives of the

proceedings against him and to assist in his defense.

Hundley claimed both that he smoked marijuana

and that he never used it and claimed that he drank

only a 12 pack of beer a year.

[*P143] Approximately one-half of Dr. Smith's

report summarizes Hundley's stay at TVBH.

Hundley was uncooperative while he was at the

facility. The psychiatrist who interviewed him upon

admission observed that he "appeared to be

malingering memory problems and 'voices'" and that

he was angry at his attorneys for sending him there.

He claimed that a pill given to him at the jail caused

72a

him to hear voices, [**65] but he refused to answer

any questions about the voices and told the

psychiatrist, "I'm trying to block that shit out." He

was evasive in answering questions, at times stating

he used marijuana as much as he could but then

immediately claiming he had never used it. Dr.

Smith reported that the psychiatrist had written

that Hundley "'had no delusions, no disorganization

in thinking, no manic, depression, or anxiety

symptoms, and did not appear to be responding to

any internal stimuli.'"

[*P144] Hundley's TVBH records indicate that at

admission, he was diagnosed with "Antisocial

Personality Disorder; Rule out malingering of

mental illness and memory deficits; Tobacco Use

Disorder, severe, currently in a controlled

environment; rule out other substance use disorder,

hypertension, history of back injury in 2003 with

chronic pain; history of burns to chest and left cheek

in 2015." While on the unit, he presented as angry

but did not have any physical confrontations with

peers or staff, and although hostile, he did not

exhibit behaviors or signs of psychosis. The staff at

TVBH did not witness any signs or symptoms of

mental illness while Hundley was in their care. On

October 4, 2016, staff noted [**66] that with respect

to his irritability, he tended to be abrupt and refused

to engage with staff other than when he was

expressing his needs or voicing complaints. He

presented as entitled and refused to attend groups.

However, staff stated that there had been "no

evidence of a major affective disorder, psychosis or

73a

thought disorder." A note from October 12, 2016,

stated that he had made some claims about being

beat up but told police that he had lied about it.

[*P145]

According to Dr. Smith, during her

evaluation, Hundley "was cooperative only when it

suited him such as to discuss his dislike of food

(which he was eating without issues during the

interview) or complain about certain staff." Dr.

Smith said that when she asked specific questions,

he typically responded with "next" or "I don't know"

or just stared at her. Hundley acknowledged that he

was facing charges related to Erika Huff. He refused

to name the exact charges but stated that his "life

was on the line." He refused to discuss the events

leading up to the crime, and when asked, he got very

irritable, yelled that he was done, and stormed out of

the room.

[*P146] Dr. Smith's report notes that Hundley "had

no prior history of psychiatric [**67] outpatient or

inpatient treatment and was never on psychotropic

medications." To a reasonable degree of medical

certainty, Dr. Smith opined:

[Hundley] does not have a mental illness but * * *

his presentation is best explained by a diagnosis of

Antisocial Personality Disorder. Criteria for

antisocial personality disorder include an enduring

pattern of disregard for and violation of the rights of

other[s] since youth which often involved breaking

the law. * * *

74a

* * * [A]ntisocial personality disorder is associated

with repeated deceit and a lack of empathy as well

as hostility, anger, irritability and impulsivity which

is consistent with the documentation of his behavior

over the course of his hospitalization.

3. Statutory mitigating factors, R.C. 2929.04(B)(1)

through (6)

[*P147] The mitigating factors specified in R.C.

2929.04(B)(1) through (6) are inapplicable. There

was no evidence that the victim induced or

facilitated the murder and no evidence of duress,

coercion, or provocation. And despite the fact that on

the night of the offense Hundley told Heard that he

needed mental help, there is no evidence of any

mental disease or defect. R.C. 2929.04(B)(1) through

(3). Because Hundley was 46 at the time of the

murder, under R.C. 2929.04(B)(4), youth is not a

factor. See State v. Frazier, 61 Ohio St.3d 247, 258,

574 N.E.2d 483 (1991). Hundley had documented

prior [**68] criminal convictions and a juvenile

adjudication. Finally, the degree of participation

under R.C. 2929.04(B)(6) is not a factor: Hundley

was the sole offender.

4. Nature and circumstances of the offense

[*P148] The nature and circumstances of the

aggravated murder offer nothing in mitigation.

75a

Hundley severely beat and strangled Huff, who

suffered from an advanced state of multiple sclerosis

and who had opened her home to him. He then lit

her body on fire. He savagely beat Huff's mother,

Mrs. Johnson, with a hammer, and after placing her

unconscious body next to the body of her dead

daughter, he attempted to light her on fire as well.

These horrific crimes lack any mitigating features.

5. History, character, and background

[*P149] Hundley did not report any family history

of substance abuse or parental abuse and neglect.

Although he dropped out of high school during his

sophomore year, he later got a GED and multiple

professional certifications. Hundley started a

business and held multiple jobs, but he was not

employed at the time of the offense.

6. Remorse

[*P150] Hundley declined to give an unsworn

statement. However, he did make a closing argument

at the mitigation hearing, during which he accused

the prosecutors of manipulating [**69] evidence,

contested his conviction, and rued his decision to

have counsel for the guilt phase. And in allocution,

Hundley simply stated that he intended to appeal

his conviction and death sentence. He exhibited no

remorse for his conduct.

76a

7. The weight of mitigating factors

[*P151] There is nothing in Hundley's background

that is mitigating, and he presented no mitigating

evidence. The available record evidence suggests

that Hundley has generally lived a life devoid of

significant trauma.

[*P152]

Mitigating factors are nonexistent.

Therefore, we conclude that the aggravating

circumstance in this case significantly outweighs the

mitigating factors beyond a reasonable doubt.

C. Proportionality

[*P153] We find that the death penalty in this case

is appropriate and proportional, when compared to

other cases in which the death penalty was imposed

for a course-of-conduct specification involving a

murder and an attempted murder. R.C. 2929.05; see,

e.g., Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114

N.E.3d 1092, at ¶ 250 (upholding death sentence for

one murder and two attempted murders, and citing

cases); State v. Martin, 151 Ohio St.3d 470, 2017Ohio-7556, 90 N.E.3d 857 (one murder and one

attempted murder); State v. Jackson, 141 Ohio St.3d

171, 2014-Ohio-3707, 23 N.E.3d 1023 (one murder

and one attempted murder); State v. Leonard, 104

Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229 (one

murder and one felonious assault).

77a

[*P154] For the foregoing reasons, we affirm the

convictions and death sentence.

Judgment affirmed.

O'Connor, C.J., and French, Fischer, Dewine, and

Stewart, JJ., concur.

Donnelly, J., concurs in judgment only.

Footnotes

1

Hundley does not contend that the trial court

erred by allowing him to represent himself during

the suppression hearing.

2

During this time, the jury returned to the

courtroom several times with questions and for

breaks.