[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Hundley, Slip Opinion No. 2020-Ohio-3775.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2020-OHIO-3775
            THE STATE OF OHIO, APPELLEE, v. HUNDLEY, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Hundley, Slip Opinion No. 2020-Ohio-3775.]
Criminal law—Aggravated murder—Death penalty—Sufficiency of the evidence—
        Manifest weight of the evidence—Appropriateness and proportionality of
        death penalty—Death penalty affirmed.
    (No. 2018-0901—Submitted February 12, 2020—Decided July 22, 2020.)
          APPEAL from the Court of Common Pleas of Mahoning County,
                                     No. 2015 CR 1132.
                                    _________________
        KENNEDY, J.
        {¶ 1} 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.
                            SUPREME COURT OF OHIO




       {¶ 2} 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
       {¶ 3} Huff lived at 44 Cleveland Street in 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.
       {¶ 4} 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. 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.
       {¶ 5} 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 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




                                         2
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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.
       {¶ 6} 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, 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
       {¶ 7} 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
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.
       {¶ 8} 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.” Heard gave him the name of a local counseling center.




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       {¶ 9} Just before she left the house, Heard gave Huff her personal cell-
phone 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.
       {¶ 10} At 2:01 a.m. on November 6, Huff’s medical-alert necklace was
activated and an ambulance was dispatched to 44 Cleveland Street. Brittany Koch
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.
       {¶ 11} The EMTs had 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
       {¶ 12} 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 parked in the driveway behind a




                                          4
                                January Term, 2020




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.
       {¶ 13} 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, 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.
       {¶ 14} 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 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 of emblem on it or something.”
       {¶ 15} 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.
       {¶ 16} 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,




                                          5
                             SUPREME COURT OF OHIO




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
       {¶ 17} Mrs. Johnson’s husband, Lonnie Johnson, was concerned when Mrs.
Johnson did not return from Huff’s home. He drove to Huff’s house and was
surprised to find the front 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.
       {¶ 18} 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.
       {¶ 19} 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.
       {¶ 20} Officer Edwards saw the back door open and a taller black male with
a bald head look around. According to Officer Edwards, upon seeing the officers,




                                         6
                                 January Term, 2020




the man “immediately closed the door 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.”
         {¶ 21} 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 gasoline-soaked shirt,
and socks.
         {¶ 22} 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, Edwards, and Bielik, testified that they did not
observe any injuries or visible marks on Hundley.
         {¶ 23} 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.
                                  4. Huff’s autopsy
         {¶ 24} 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.




                                           7
                             SUPREME COURT OF OHIO




       {¶ 25} 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.
       {¶ 26} Dr. Felo testified that Huff suffered blunt-force trauma while she
was still alive, resulting in significant 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.”
       {¶ 27} 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.”
       {¶ 28} 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.”
       {¶ 29} 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 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.




                                          8
                               January Term, 2020




       {¶ 30} 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 testified, to a reasonable degree of
medical certainty, that Huff was already dead when the fire occurred.
                           5. Mrs. Johnson’s injuries
       {¶ 31} 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 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
       {¶ 32} 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.
       {¶ 33} 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.




                                         9
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       {¶ 34} 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 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?”
       {¶ 35} 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 sleeping when
Hundley returned from the bar, Hundley said, “[T]his here is where it gets tricky.”
       {¶ 36} 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 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
       {¶ 37} 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.




                                        10
                                 January Term, 2020




        {¶ 38} 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 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.
        {¶ 39} BCI also tested blood samples from the handle of Huff’s grabbing
aid, which was bent when it was collected 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.
        {¶ 40} 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.
        {¶ 41} 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 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.




                                           11
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       {¶ 42} 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
       {¶ 43} 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.”
       {¶ 44} While sorting through the fire debris, fire investigators collected a
metal knife blade, clothing, a cigarette lighter, a swatch of carpet from the floor
near Huff’s bed, and other debris. Peterman also collected a gasoline can that he
found in the garage. The coroner’s office provided 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.
       {¶ 45} Christa Rajendram, Ph.D., the forensic-laboratory 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.




                                          12
                               January Term, 2020




                                 D. Defense case
       {¶ 46} 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.
       {¶ 47} 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 to move
Huff. Hundley explained 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.
       {¶ 48} 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.
       {¶ 49} 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 a
gas can.
       {¶ 50} 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 door.
Before he realized who was at the door, Hundley grabbed the hammer from a




                                        13
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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.
       {¶ 51} 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 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.
       {¶ 52} 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 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.
       {¶ 53} 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




                                        14
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test for it. He also noted that Hundley’s blood-alcohol level was .105, which 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
       {¶ 54} 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 death-penalty
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 more individuals.
       {¶ 55} 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.
       {¶ 56} 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




                                          15
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that was a picture of Huff, and then rested. Hundley then rested without presenting
any evidence.
       {¶ 57} The jury unanimously recommended a 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
       {¶ 58} In 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.
       {¶ 59} “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 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,




                                          16
                                January Term, 2020




99 S.Ct. 2781, 61 L.Ed.2d 560. And we recognize that the jury is the sole judge of
a witness’s credibility. State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
       {¶ 60} 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, 744 N.E.2d 1163 (2001), quoting State v. Taylor, 78
Ohio St.3d 15, 19, 676 N.E.2d 82 (1997), quoting the 1973 Legislative Service
Commission comments to R.C. 2903.01.
       {¶ 61} Three factors guide our review of Hundley’s claim that the evidence
was legally insufficient to prove prior calculation and design: “(1) 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?
       {¶ 62} Undisputed evidence demonstrates 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.




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       {¶ 63} Hundley told investigators that he and Huff had a good relationship,
but that evidence was controverted by the testimony of Heard and Mrs. 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 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 cell-
phone 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.”
       {¶ 64} 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, 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 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




                                        18
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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?
        {¶ 65} 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.
        {¶ 66} 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 house not long after Heard left knowing Huff would be alone and
physically incapable of leaving.
  3. Was the act drawn out or “an almost instantaneous eruption of events?”
        {¶ 67} The 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 t-shirt tested positive for chloroform.
        {¶ 68} 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,




                                          19
                            SUPREME COURT OF OHIO




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 bruising [wa]s developing.”
       {¶ 69} After the 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.
       {¶ 70} 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 African-
American man—who the EMT later identified as Hundley—opened the front door.
According to Koch, the man was calm and polite and did not seem anxious.
       {¶ 71} Mrs. Johnson arrived after the EMTs had left. She testified that she
unlocked the bottom lock 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.




                                        20
                                January Term, 2020




         {¶ 72} 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 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 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.
         {¶ 73} 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
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.
         {¶ 74} 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




                                          21
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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
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.
       {¶ 75} 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 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 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 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.
       {¶ 76} We have found sufficient evidence of prior calculation and design in
cases in which a 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




                                          22
                                 January Term, 2020




specific course of action,” 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
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’ ”).
          {¶ 77} 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 (“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 impulse and show[ed]
that he was determined to complete a specific course of action.” Id. at ¶ 46.
          {¶ 78} 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
          {¶ 79} Hundley also contends, in proposition of law No. 2, that his
aggravated-murder conviction was against the manifest weight of the evidence.
          {¶ 80} 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 manifest-weight 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




                                          23
                             SUPREME COURT OF OHIO




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, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A manifest-
weight challenge can be successful “ ‘only in the exceptional case in which the
evidence weighs heavily against the conviction.’ ” Id., quoting Martin at175.
       {¶ 81} 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.
       {¶ 82} This is not an “ ‘exceptional case in which the 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
       {¶ 83} 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” when he requested to represent himself.
                                 1. Relevant facts
       {¶ 84} 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




                                         24
                                January Term, 2020




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, they had filed a motion for a competency and sanity evaluation, and pending
the results, they might enter a not-guilty-by-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.
       {¶ 85} 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 Twin Valley Behavioral
Healthcare–Timothy B. Moritz Forensic Unit (“TVBH”) for observation and a
second competency evaluation.
       {¶ 86} 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 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.
       {¶ 87} 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.




                                         25
                            SUPREME COURT OF OHIO




       {¶ 88} 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 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 trial, and the possibility that the jury would negatively perceive his
lack of an attorney.
       {¶ 89} 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.
       {¶ 90} 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.
       {¶ 91} At a hearing on September 6, 2017, Hundley again 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




                                        26
                                January Term, 2020




conducting a waiver colloquy, the court found that he had knowingly, intelligently,
and voluntarily waived his right to counsel.
       {¶ 92} 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.
       {¶ 93} 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 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.
       {¶ 94} 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.”
       {¶ 95} 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




                                            27
                              SUPREME COURT OF OHIO




mitigating evidence and declined to give an unsworn statement, but he did give a
closing argument.
                                     2. Analysis
          {¶ 96} “ ‘The Sixth Amendment * * * guarantees that a defendant in a state
criminal trial has an independent constitutional right of self-representation 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, 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, 2004-Ohio-5471, 816
N.E.2d 227, paragraph two of the syllabus.
          {¶ 97} 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).




                                          28
                                     January Term, 2020




               a. Request for standby counsel for suppression hearing
          {¶ 98} Hundley 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.1
          {¶ 99} 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-Ohio-1594, 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”).
          {¶ 100} 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.
          {¶ 101} We therefore reject Hundley’s fourth proposition of law.
                    b. Self-representation for the mitigation hearing
          {¶ 102} In his third proposition of law, Hundley contends 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.”

1. Hundley does not contend that the trial court erred by allowing him to represent himself during
the suppression hearing.




                                               29
                             SUPREME COURT OF OHIO




       {¶ 103} 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, 2011-Ohio-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 self-representation. 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 totality of circumstances.” State v. Moore, 81 Ohio St.3d 22, 31, 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.
       {¶ 104} Hundley asserts that his request to 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.
       {¶ 105} 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




                                         30
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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 that the 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.
       {¶ 106} 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.


       {¶ 107} Hundley’s argument that his request was not knowing, intelligent,
and voluntary because he was “likely under the duress of a personality disorder”




                                        31
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and was goaded by the trial court lacks merit. Dr. Delaney Smith, M.D., the
psychiatrist who performed one of Hundley’s pretrial competency 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.
       {¶ 108} 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.
       {¶ 109} 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 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, 2019-Ohio-2071, ¶ 17 (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




                                         32
                                 January Term, 2020




“repeatedly made inappropriate responses to the trial court’s questions” regarding
self-representation); 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”).
       {¶ 110} We hold that Hundley knowingly, intelligently, and voluntarily
waived his right to counsel for his mitigation hearing, and we reject Hundley’s third
proposition of law.
              D. Fundamental fairness of the mitigation hearing
       {¶ 111} 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.
       {¶ 112} 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.




                                         33
                                  SUPREME COURT OF OHIO




         {¶ 113} Hundley’s reliance 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 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, 724 N.E.2d
793 (2000), quoting Townsend at 741.
         {¶ 114} 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, 2007-Ohio-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. 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
         1. Supplemental jury instruction during sentencing deliberations
         {¶ 115} The jury deliberated regarding sentencing for less than one day.
After approximately four and one-half hours,2 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


2. During this time, the jury returned to the courtroom several times with questions and for breaks.




                                                34
                                January Term, 2020




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.
       {¶ 116} 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. 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, 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.
       {¶ 117} 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, 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).
       {¶ 118} 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




                                         35
                              SUPREME COURT OF OHIO




trial court’s supplemental instruction in this case merely directed the jury to
continue deliberations until 4:30 p.m.; the instruction was balanced, neutral, and
noncoercive and therefore appropriate under Howard.
        {¶ 119} Hundley argues that by indicating that it was at a standstill, the jury
in his case was “irreconcilably deadlocked,” requiring the trial court to instruct the
jurors to consider only the available life sentences. He is incorrect. “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
        {¶ 120} The jury sent the following question to the court during
deliberations 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.
        {¶ 121} 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 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




                                           36
                                January Term, 2020




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.
       {¶ 122} In Hundley’s view, because Ohio is a “weighing” state, an
instruction on mercy is required to foreclose constitutional error. 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 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-Ohio-
1562, 114 N.E.3d 1092, ¶ 179, 224.
       {¶ 123} Because Hundley has offered no meritorious justification for
departing from this settled law, proposition of law No. 7 lacks merit.
              F. Constitutional and international-law challenges
       {¶ 124} 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, 109-110, 113, 116-117,
120; State v. Jenkins, 15 Ohio St.3d 164, 168-173, 473 N.E.2d 264 (1984).
       {¶ 125} 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




                                         37
                            SUPREME COURT OF OHIO




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, 2018-Ohio-1462, 108
N.E.3d 56. And the United States Supreme Court has recently confirmed that
neither 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:


       [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, ___U.S. ___, 140 S.Ct. 702, 707, ___ L.Ed.2d ___ (2020).
       {¶ 126} 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
       {¶ 127} 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-Ohio-1942, 13 N.E.3d 1051, ¶ 148, quoting State v. Garner,
74 Ohio St.3d 49, 64, 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.




                                        38
                               January Term, 2020




              IV. INDEPENDENT SENTENCE EVALUATION
       {¶ 128} We must independently review the death sentence for
appropriateness and proportionality. R.C. 2929.05(A). In conducting this review,
we must determine whether the evidence supports the jury’s finding of aggravating
circumstances, whether the aggravating circumstances outweigh the mitigating
factors, and whether 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
       {¶ 129} 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).
       {¶ 130} 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 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
       {¶ 131} We must weigh the above aggravating circumstance against any
mitigating evidence about “the nature and circumstances of the offense” and
Hundley’s “history, character, and background.” R.C. 2929.04(B). In addition, we
must consider and weigh any evidence of the mitigating factors specifically listed
in R.C. 2929.04(B)(1) through (7).




                                         39
                            SUPREME COURT OF OHIO




                      1. Evidence at the mitigation hearing
       {¶ 132} 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
       {¶ 133} 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. To fulfill
our duty under R.C. 2929.05(A), we will consider an unsealed competency report
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
       {¶ 134} 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.
       {¶ 135} 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. Hundley had family in Youngstown, Ohio, whom he occasionally visited.




                                        40
                               January Term, 2020




       {¶ 136} 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 company in
Washington, D.C., and later worked for a heating company.
       {¶ 137} Hundley then graduated from a truck-driving 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.
       {¶ 138} 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.
       {¶ 139} 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 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.
       {¶ 140} 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.”




                                        41
                             SUPREME COURT OF OHIO




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.
       {¶ 141} 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 illness that would interfere with his ability to participate in the
legal process, that he was not intellectually impaired, and that he was in good
behavioral control.
                       b. Dr. Smith’s evaluation and report
       {¶ 142} 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.     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.
       {¶ 143} 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 him to hear voices, but he refused to answer any questions about the voices




                                         42
                                 January Term, 2020




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.’ ”
       {¶ 144} 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
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 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.
       {¶ 145} 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




                                          43
                               SUPREME COURT OF OHIO




the crime, and when asked, he got very irritable, yelled that he was done, and
stormed out of the room.
          {¶ 146} Dr. Smith’s report notes that Hundley “had no prior history of
psychiatric 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. * * *
                 * * * [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)
          {¶ 147} 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 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.




                                           44
                                January Term, 2020




                   4. Nature and circumstances of the offense
       {¶ 148} The nature and circumstances of the aggravated murder offer
nothing in mitigation. 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
       {¶ 149} 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
       {¶ 150} 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 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.
                        7. The weight of mitigating factors
       {¶ 151} 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.
       {¶ 152} Mitigating factors are nonexistent. Therefore, we conclude that the
aggravating circumstance in this case significantly outweighs the mitigating factors
beyond a reasonable doubt.




                                        45
                              SUPREME COURT OF OHIO




                                C. Proportionality
          {¶ 153} 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, 2017-Ohio-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).
          {¶ 154} 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.
                                _________________
          Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
          Rhys B. Cartwright-Jones and John P. Laczko, for appellant.
                                _________________




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