[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Neyland, Slip Opinion No. 2014-Ohio-1914.]




                                        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. 2014-OHIO-1914
           THE STATE OF OHIO, APPELLEE, v. NEYLAND, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
    it may be cited as State v. Neyland, Slip Opinion No. 2014-Ohio-1914.]
Criminal law—Aggravated murder—Death penalty affirmed.
      (No. 2008-2370—Submitted August 20, 2013—Decided May 8, 2014.)
            APPEAL from the Court of Common Pleas of Wood County,
                                  No. 2007-CR-0359.
                               ____________________
        KENNEDY, J.
        {¶ 1} This is an appeal as of right by defendant-appellant, Calvin Neyland
Jr. A jury convicted him of the aggravated murders of Douglas Smith and
Thomas Lazar, and it recommended the sentence of death on each count of
murder. The trial court accepted those recommendations and sentenced Neyland
accordingly.
                                   I. Trial Evidence
                                     A. State’s case
        {¶ 2} Evidence introduced at trial showed that Neyland began working as
a truck driver for Liberty Transportation Company in Perrysburg, Ohio, in July
2006.
                             SUPREME COURT OF OHIO




         {¶ 3} Beginning in March 2007, Neyland was cited several times for
falsifying his driver’s logs and for committing other driving violations. On July
24, 2007, Liberty notified Neyland in writing of these infractions and informed
him that any further violations for completing a false document would result in
his termination from the company.
         {¶ 4} Doug Smith was the branch manager for Liberty Transportation in
Perrysburg. During the spring of 2007, Smith noticed a change in Neyland’s
attitude and performance.       Smith was receiving complaints from Liberty’s
customers about Neyland, and some of them did not want Neyland to return to
their businesses. Neyland and Smith had a meeting about one of the complaints.
The meeting resulted in a bizarre ending with Neyland seated in a lawn chair
outside Smith’s office, repeatedly phoning him, while Smith remained in his
office with the doors locked.
         {¶ 5} During late July or early August 2007, Anthony Arent, the shipping
manager at nearby Great Lakes Windows, overheard Neyland on the phone with
Smith.     Arent testified that Neyland was “very uncooperative” during the
conversation and that he resorted to profanity, calling Smith “a bitch.” William
Lynch Jr., a truck driver for Liberty, talked to Neyland about a week before the
murders. Neyland, who was upset with Smith, warned, “If they mess with me, I’ll
just shoot them.”
         {¶ 6} On August 1, 2007, Neyland was involved in a vehicle accident and
was determined to be at fault. Following this incident, officials at Liberty decided
to terminate Neyland’s employment.
         {¶ 7} Smith scheduled a meeting with Neyland at Smith’s office at 8:00
a.m. on August 8, 2007, to terminate Neyland’s employment. Thomas Lazar, the
safety director for Liberty, planned to attend this meeting because Smith did not
want to be alone with Neyland when he terminated him. Lazar also planned to




                                         2
                                January Term, 2014




remove the Department of Transportation (“DOT”) sticker that was attached to
the door of Neyland’s tractor-trailer.
       {¶ 8} On August 8, Neyland delayed the meeting three times before he
finally agreed to meet with Smith and Lazar at 3:00 p.m.              During one
conversation to reschedule the meeting, Neyland told Smith that if Smith was
going to have somebody at the meeting, then he was going to bring somebody,
too.
       {¶ 9} At approximately 3:00 p.m., Neyland arrived outside Liberty’s
warehouse in his tractor. Neyland was wearing a dark Hawaiian shirt. It is
unclear whether Neyland met with either Lazar or Smith when he first arrived. In
any event, Neyland shot Lazar four times in the back and once in the arm in the
yard outside the building. Neyland then entered Liberty’s warehouse with a gun
in his hand and walked up the stairway to Smith’s office.
       {¶ 10} Smith called 9-1-1 and reported that he heard shots being fired. He
told the 9-1-1 operator that he needed to get downstairs to see what was going on.
On the recording of the call, two gunshots can be heard and a voice says, “crawl
bitch.” There is then the sound of a struggle, and Smith repeatedly calls for help.
A final shot was then fired. Neyland had killed Smith in his office with a single
gunshot to the head.
       {¶ 11} Afterwards, Neyland left the warehouse with the gun in his hand.
He walked to his tractor and drove away.
       {¶ 12} Police officers arriving at the scene found Lazar lying on the lawn
in front of Liberty’s warehouse. He died at the scene shortly thereafter. Officers
also went upstairs and found Smith’s dead body lying on the floor near his desk.
A description of Neyland’s tractor, along with a partial license-plate number, was
broadcast to law-enforcement agencies.
       {¶ 13} Investigators collected shell casings outside the warehouse and
around Smith’s office. They found one bullet hole that went through Smith’s



                                         3
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chair and into the wall and another bullet hole in the wall behind the chair.
Investigators also found paperwork about Neyland’s performance, including a
driver’s vehicle-inspection report, in the middle of the desk.
         {¶ 14} After the shooting, Neyland drove to the Silver Blue Motel in
Monroe County, Michigan, where he was staying. During the late afternoon of
August 8, 2007, police officers spotted Neyland’s tractor parked outside the
motel. Officers watched the tractor until the Monroe County Special Weapons
and Tactics (SWAT”) team arrived.
         {¶ 15} Around 6:00 p.m., Neyland came out of his motel room, got into
the tractor, and drove the short distance to the motel office. The SWAT team then
approached the vehicle and arrested Neyland. As he was being placed on the
ground, Neyland said, “I was going to turn myself in.” Neyland also said, “I want
the letter. There’s a letter in my truck. It’s to my brother. It’s my last will.”
When asked if he had any weapons before being handcuffed, Neyland said, “No,
the gun is in the truck by the door.”
         {¶ 16} Neyland was placed in a police cruiser following his arrest. Sgt.
Keith Williamson of the Ohio Bureau of Criminal Identification and Investigation
(“BCI&I”) Crime Scene Unit, obtained a gunshot-residue sample from Neyland’s
hands.
         {¶ 17} After obtaining a search warrant, the police seized evidence from
Neyland’s tractor. A Ruger 9 mm handgun and magazine inside a holster, another
weapon magazine, and a dark Hawaiian shirt were found between the driver’s and
the passenger’s seats. Sgt. Williamson also obtained a gunshot-residue sample
from the steering wheel.
         {¶ 18} During the search of the tractor, the police collected an envelope
addressed to Phyllis Gregory with Neyland’s return address. Inside the envelope
were three default-payment notices that had been sent to Neyland for four storage
units. On each of the notices, Neyland had handwritten some variation of the




                                          4
                                 January Term, 2014




following statement: “This may be my last will and testament. You may have
these items. I will no longer be able to pay; these are paid til 8/1/07.” Two of the
statements were signed by Neyland. On the reverse side of one notice, Neyland
wrote that additional items were located at the Silver Blue Motel. Beneath this
last statement, Neyland wrote an address next to his brother’s name.
       {¶ 19} Dr. Cynthia Beisser, M.D., deputy coroner for Lucas County,
conducted the autopsies on Smith and Lazar. Dr. Beisser testified that Smith died
from one gunshot wound to the head. The gunshot entered Smith’s right cheek
and exited just above his left ear.
       {¶ 20} Dr. Beisser testified that Lazar was shot four times in the back and
once in the right arm. Three of the shots in the back were in close proximity and
displayed a triangular pattern. Gunpowder stippling around one of the gunshot
wounds in the back indicated “an intermediate range of fire.”          Dr. Beisser
concluded that Lazar’s death resulted from multiple gunshot wounds.
       {¶ 21} After obtaining a search warrant, the police searched Neyland’s
storage units. In one of the units, the police found two spotting scopes set up in
the middle of the unit with pieces of paper underneath. The top piece of paper
stated, “If your big dumb retard ass wasn’t in here!!! You wouldn’t be reading
this would you?” A paper underneath that one stated, “OOOO, I’m so scared.
Three Round Shot Group.” On the same paper, three pennies were arranged in a
triangular pattern with circles drawn around them. Below the pennies, there was
the statement, “You think I’m playing[.] You’re gonna come up missing!!!”
Numerous firearms and ammunition were also found in the storage unit.
       {¶ 22} Daniel Davison, a forensic scientist at BCI&I, performed a
gunshot-residue analysis on samples from Neyland’s hands and from the steering
wheel of the tractor. Davison testified that test results were “highly indicative of
gunshot residue” on one of the samples from Neyland’s hands and on a sample
from the steering wheel.



                                         5
                              SUPREME COURT OF OHIO




        {¶ 23} Todd Wharton, a forensic scientist at BCI&I, compared Neyland’s
fingerprints with a fingerprint lifted from a weapons magazine found in Neyland’s
tractor. Wharton testified that his comparison identified the print of Neyland’s
left little finger on the magazine.
        {¶ 24} Wharton also examined the Ruger 9 mm semiautomatic pistol
found in Neyland’s tractor. Testing established that the empty cartridge cases
collected at the murder scene were fired from this firearm.         Testing also
confirmed that bullets recovered from the scene and from the Lazar autopsy had
been fired by this firearm.
                                      B. Defense case
        {¶ 25} The defense presented no witnesses during the trial phase. The
defense did present four sales receipts showing that two rifles, a shotgun, and a
pistol found in Neyland’s storage unit had been purchased on November 3, 2006.
Defense counsel offered this evidence to show that these weapons were purchased
almost ten months before the homicides.
                                  II. Case History
        {¶ 26} Neyland was indicted on two counts of aggravated murder pursuant
to R.C. 2903.01(A). Count One charged Neyland with the aggravated murder of
Lazar with prior calculation and design. Count Two charged Neyland with the
aggravated murder of Smith with prior calculation and design.
        {¶ 27} Counts One and Two included death-penalty specifications for
purposeful killings as part of a course of conduct, R.C. 2929.04(A)(5). Count
Two included a death-penalty specification for murder to escape accounting for a
crime, R.C. 2929.04(A)(3). Both counts also included gun specifications.
        {¶ 28} Neyland pleaded not guilty to all charges. The jury found Neyland
guilty of all charges and specifications, except he was found not guilty of the
specification for murder to escape accounting for a crime.         Neyland was




                                             6
                                January Term, 2014




sentenced to death on the two counts of aggravated murder.            He was also
sentenced to six years in prison for the two gun specifications.
                               III. Issues on Appeal
       {¶ 29} The principal issues for review include Neyland’s competency to
stand trial, the trial court’s order that Neyland wear leg restraints in the
courtroom, the introduction of weapons and ammunition not used in the murders,
the introduction of Dr. Smith’s former testimony during the penalty phase, and the
adequacy of the trial court’s sentencing opinion.
       {¶ 30} In this appeal, Neyland seeks reversal of his convictions and
sentence in 19 propositions of law. We will address the issues in the approximate
order that they arose during the trial proceedings.
                         A. Pretrial and trial-phase issues
1. Competency to stand trial (Proposition of law I)
       {¶ 31} Neyland argues that the trial court abused its discretion in finding
that he was competent to stand trial, because this ruling is not supported by the
evidence.
       {¶ 32} The test for determining whether a defendant is competent to stand
trial is “ ‘ “whether [the defendant] has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and whether he
has a rational as well as factual understanding of the proceedings against him.” ’ ”
State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995), quoting Dusky v.
United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), quoting the
argument of then Solicitor General J. Lee Rankin. Moreover, a defendant is
presumed to be competent to stand trial, and the burden is on the defendant to
prove by a preponderance of the evidence that he is not competent. State v.
Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28; R.C.
2945.37(G).




                                          7
                            SUPREME COURT OF OHIO




       {¶ 33} A trial court’s finding that a defendant is competent to stand trial
will not be disturbed where there is some reliable and credible evidence
supporting that finding. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, ¶ 46; State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790
N.E.2d 303, ¶ 33.
                         a. The competency proceedings
       {¶ 34} Defense counsel submitted a pretrial motion requesting that
Neyland be examined to determine whether he was competent to stand trial. Dr.
Thomas G. Sherman, a psychiatrist at the Court Diagnostic and Treatment Center,
met with Neyland and concluded that he was not competent to stand trial.
       {¶ 35} The trial court granted the state’s request for a second evaluation of
Neyland’s competency to be conducted on an in-patient basis at Twin Valley
Behavioral Healthcare. Dr. Delaney Smith, a psychiatrist at Twin Valley, and Dr.
Kristen E. Haskins, a clinical psychologist at Twin Valley, evaluated Neyland.
They found that Neyland was competent to stand trial. The trial court then
granted a defense request for a third evaluation. Dr. Barbra A. Bergman, a
clinical/forensic psychologist, conducted this evaluation and concluded that
Neyland was competent.
       {¶ 36} Thereafter, the trial court conducted a competency hearing. Dr.
Sherman testified that he spent a little over an hour talking with Neyland and
determined that he had a mental illness, most likely schizophrenia. Dr. Sherman
mentioned that Neyland had been evaluated in the late 1990s, and it was
determined that he had a mental illness then. Dr. Sherman provided examples of
Neyland’s paranoid thinking.      Neyland believed that people were placing
prophylactics in his laundry and that people were entering his apartment and
listening to his answering machine.
       {¶ 37} Dr. Sherman stated that as a result of his mental illness, Neyland
was “not able to understand the nature or the gravity of the charges against him,




                                         8
                               January Term, 2014




but more importantly it impacted upon his ability to cooperate with his own
defense.” Dr. Sherman concluded that Neyland was not competent to stand trial.
He stated, “This was not even a close call.” During cross-examination, Dr.
Sherman acknowledged that he did not speak with Neyland’s attorneys, did not
administer any tests, and did not review the reports completed by the other
psychologists who had examined Neyland.
       {¶ 38} Dr. Smith testified that Neyland was “under my care” during his
30-day in-patient stay at Twin Valley. Dr. Smith was responsible for doing
“intake on him, a psychiatric assessment, and prescribing any medications.” Dr.
Smith detected no signs of mental illness, but determined that Neyland had a
paranoid personality disorder. She stated that Neyland discussed his plans to
work with his attorneys and mentioned that if things did not work out at trial he
could file an appeal. Dr. Smith also testified that “he was able to be cooperative
when he chose to be so; and that when he chose not to be cooperative it was just
that, it was a choice that he was making and not the product of some mental
illness, such as being grossly delusional * * * or hearing voices telling him not to
cooperate.” Dr. Smith concluded, “It is my opinion within a reasonable medical
certainty that he is both able to understand the nature and objectives of the
proceedings as well as to assist counsel in his defense should he choose to do so.”
Yet Dr. Smith did not complete a written report and acknowledged that it was not
her purpose to conduct a competency evaluation.
       {¶ 39} Dr. Haskins also evaluated Neyland during his stay at Twin Valley.
She administered a test called the MacArthur Competence Assessment Tool-
Criminal   Adjudication    (“MacCAT-CA”)        to   help   determine    Neyland’s
competency. Neyland had a low score of 4 out of a possible 16 on the reasoning
section, suggesting serious difficulty in distinguishing relevant from irrelevant
information and difficulty in reasoning about the options of pleading guilty or not




                                         9
                              SUPREME COURT OF OHIO




guilty. Dr. Haskins attributed this low score to Neyland’s refusal to cooperate
with the assessment procedures.
       {¶ 40} But Dr. Haskins’s clinical evaluation showed that Neyland was
aware of the charges against him, knew the possible pleas and the potential
sentences, and understood the different roles of the parties. Neyland also stated
that he would allow his attorneys to defend him.       Dr. Haskins testified that
Neyland is “at least of average intelligence” and that he does not have a serious
mental illness. She concluded that Neyland is “capable of understanding the
nature and objective of the proceedings against him and of assisting in his own
defense.”   Yet Dr. Haskins said that “it’s going to be very difficult for his
attorneys to represent him. He is not stupid. * * * He has certain thoughts about
how he wants things to go.”
       {¶ 41} Dr. Bergman evaluated Neyland during a one-hour interview at the
Wood County Jail. She testified that Neyland did not want her to conduct this
evaluation, because a competency evaluation had already found that he was
competent. She stated that Neyland was “very controlling” and would not allow
her to ask questions about pertinent topics. Dr. Bergman believed that Neyland
had a personality disorder with predominant features that are paranoid,
narcissistic, schizoid, and obsessive-compulsive. Dr. Bergman concluded that
Neyland understood the nature and significance of the charges and the objectives
of the court proceedings and that he was capable of assisting his counsel and
meaningfully participating in the proceedings.
       {¶ 42} The trial court found Neyland competent to stand trial. The trial
court stated that Dr. Smith and Dr. Haskins were more persuasive than Dr.
Sherman, because the doctors at Twin Valley had the opportunity to observe
Neyland’s behavior for approximately 30 days.         The trial court discounted
Neyland’s low score on the reasoning section of the MacCAT-CA because all the
doctors who evaluated Neyland indicated that he was very guarded and that




                                        10
                               January Term, 2014




Neyland exercised his right against self-incrimination, which made it difficult to
administer the test.
                                    b. Analysis
       {¶ 43} Neyland argues that the trial court abused its discretion in finding
that he was competent to stand trial. He asserts that Dr. Sherman’s report, along
with his experience, deserved as much weight, if not more, than the other expert
opinions. Neyland also attacks the findings of the three experts who found him to
be competent and argues that the trial court erred in relying on their testimony in
finding him competent.
       {¶ 44} First, Neyland argues that Dr. Haskins’s opinion that he was
competent was not supported by her own underlying findings about Neyland,
including (1) his inability to disclose personal information, (2) his rigid neurotic
adjustment, (3) his clinically significant impairment and serious difficulty in
distinguishing relevant from less relevant factual information and in reasoning
about legal options of pleading guilty or not guilty, and (4) the likelihood that he
would be a very difficult defendant with whom to reason.
       {¶ 45} Neyland’s claims take Dr. Haskins’s statements out of context. Dr.
Haskins acknowledged that the validity of Neyland’s test results on the Minnesota
Multiphasic Personality Inventory-2 (“MMPI-2”) might have been compromised
by his unwillingness or inability to disclose personal information. Dr. Haskins
also discussed the possibility that Neyland’s pattern of uncooperativeness may be
due to a “rigid neurotic adjustment.”
       {¶ 46} Dr. Haskins did report that Neyland scored low on the reasoning
section of the MacCAT-CA. But Dr. Haskins attributed Neyland’s low score to
his refusal to cooperate with the assessment procedures. Dr. Haskins’s comment
that Neyland will be a “very difficult defendant with whom to reason” came after
her discussion about Neyland’s refusal to cooperate and refusal to answer certain
questions on the MacCAT-CA. Dr. Haskins’s observations do not conflict with



                                        11
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her finding that Neyland is competent to stand trial. As noted in Berry, 72 Ohio
St.3d at 360-361, 650 N.E.2d 433, a defendant’s failure to cooperate with counsel
does not constitute sufficient indicia of incompetence to raise doubt about a
defendant’s competence to stand trial.         Thus, Dr. Haskins’s findings do not
undermine her competency findings.
       {¶ 47} Second, Neyland argues that Dr. Bergman’s opinion that he was
competent to stand trial is undermined by her observations of Neyland’s (1) poor
judgment, (2) inflexible, rigid views, (3) limited insight, (4) severe personality
disorder, and (5) failure to assist his counsel to prepare for his defense.
       {¶ 48} Dr. Bergman discussed Neyland’s mental status in her written
evaluation. Neyland’s poor judgment, inflexible, rigid views, and limited insight
into his own behavior were some of the factors that led to Dr. Bergman’s
conclusion that Neyland had a severe personality disorder. These findings do not
undermine Dr. Bergman’s conclusion that Neyland was competent to stand trial.
Indeed, “[i]ncompetency must not be equated with mere mental or emotional
instability or even with outright insanity.       A defendant may be emotionally
disturbed or even psychotic and still be capable of understanding the charges
against him and of assisting his counsel.” State v. Bock, 28 Ohio St.3d 108, 110,
502 N.E. 1016 (1986).
       {¶ 49} Dr. Bergman’s evaluation included her discussion with J. Scott
Hicks, Neyland’s defense counsel. Hicks reported that Neyland is “no help at all
in preparing the case for [the] defense.” Dr. Bergman stated that Neyland had his
own ideas about his defense and expressed his unhappiness with counsel’s
direction in managing his case. Yet Neyland clearly understood his legal rights
and stated several times, “I have a right to remain silent.” Neyland’s lack of
cooperation with defense counsel at various times did not establish that he was
not competent to stand trial. See Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193,




                                          12
                                January Term, 2014




790 N.E.2d 303, at ¶ 30. Thus, Dr. Bergman’s comments about Neyland’s lack of
cooperation with counsel did not invalidate her findings.
       {¶ 50} Neyland also argues that Dr. Bergman’s finding of competency
was based on the wrong standard, i.e., she believed that he must be suffering from
mental illness or mental retardation to be found incompetent. We also reject this
claim. In finding Neyland competent, Dr. Bergman testified, “In my opinion he
does understand the nature and significance of the charges. He does understand
the nature and objectives of the Court proceedings. He is capable of assisting his
attorney and he is capable of participating in a meaningful manner in the Court
proceedings.”    Thus, Dr. Bergman used the correct standard in finding that
Neyland was competent to stand trial.
       {¶ 51} Finally, Neyland argues that the trial court’s factual findings
underlying its determination that he was competent to stand trial were clearly
erroneous.
       {¶ 52} First, Neyland argues that Dr. Smith’s testimony could not form the
basis for the trial court’s findings, because Dr. Smith testified that it was not her
job to perform a competency evaluation and she did not prepare a written report.
Thus, Neyland argues that Dr. Smith’s testimony did not meet the exacting
standards of R.C. 2945.371. However, Neyland failed to object to Dr. Smith’s
opinion about his competency at the hearing and thus waived all but plain error.
See State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 29.
No plain error occurred.
       {¶ 53} R.C. 2945.371 provides procedures for a trial court to follow in
conducting competency evaluations. R.C. 2945.371(G)(1) and (2) provide that an
examiner shall file a written report that includes the examiner’s findings and the
facts in reasonable detail on which the findings are based.
       {¶ 54} R.C. 2945.37 provides procedures for conducting a competency
hearing.     R.C. 2945.37(E) states: “The prosecutor and defense counsel may



                                         13
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submit evidence on the issue of the defendant’s competence to stand trial. A
written report of the evaluation of the defendant may be admitted into evidence at
the hearing * * *.” (Emphasis added.) Nothing in R.C. 2945.37 limits expert
testimony that may be presented during such hearings.
       {¶ 55} Evid.R. 702(B) provides that “a witness may testify as an expert”
by reason of his or her “specialized knowledge, skill, experience, training, or
education.” Dr. Smith was qualified to testify as an expert under Evid.R. 702
because of her specialized knowledge and experience as a psychiatrist. She
testified that she had previously conducted between 30 and 40 competency
evaluations. Neyland was under Dr. Smith’s care during the 30 days that he was
at Twin Valley, and she met with him throughout his stay. She also testified that
she talked to other staff members who interacted with Neyland on a daily basis.
       {¶ 56} We conclude that a sufficient foundation was established for Dr.
Smith to render an opinion about Neyland’s competency to stand trial. Neyland’s
complaint that it was not Dr. Smith’s job to conduct a competency evaluation
goes to the weight to be given to her opinion and not her ability to render such an
opinion. See State v. Luoma, 2d Dist. Montgomery No. 10719, 1990 WL 197944,
*10 (Dec. 7, 1990) (psychiatrist permitted to testify concerning defendant’s sanity
although his sole purpose for evaluating the defendant was to determine
competency).
       {¶ 57} Second, Neyland argues that the trial court should not have relied
on Dr. Haskins’s evaluation, because she spent only four hours with him.
Neyland’s claim overlooks the fact that Dr. Haskins reported that she received
treatment-team updates during Neyland’s in-patient stay, talked to defense
counsel about him, reviewed treatment charts, reviewed Dr. Sherman’s report,
consulted with Dr. Smith, and reviewed other information involving his case.
Moreover, Dr. Haskins was unable to meet with Neyland for a longer period,
because he refused to meet with her.




                                        14
                                   January Term, 2014




       {¶ 58} Third, Neyland argues that the trial court erred in finding that
because Dr. Smith and Dr. Haskins observed him for approximately 30 days, this
gave them a better opportunity to observe his behavior than Dr. Sherman.
Neyland emphasizes that Dr. Smith and Dr. Haskins testified that the length of an
examination is not the crucial factor in conducting a competency evaluation.
Neyland also points out that Dr. Bergman met with him for only an hour.
       {¶ 59} As with other witnesses, the trial judge heard all of the expert
testimony, and it was his job to judge their credibility and weigh all the evidence
in making his findings. Deference on these issues should be given to those “who
see and hear what goes on in the courtroom.” State v. Cowans, 87 Ohio St.3d 68,
84, 717 N.E.2d 298 (1999).
       {¶ 60} The trial court’s findings about the length of the evaluations were
not unreasonable.     Indeed, Dr. Smith compared her examination with Dr.
Sherman’s shorter examination. She noted, “I had more time to observe and
interact with Mr. Neyland and see him in various different settings and see his
interactions with different people.” Thus, we also reject this claim.
                                     c. Conclusion
       {¶ 61} We hold that the trial court did not abuse its discretion in finding
that Neyland was competent to stand trial. Three of the four witnesses who
testified concluded that he was competent.           The trial court also reasonably
determined that greater weight should be given to testimony of a psychiatrist and
a psychologist who examined Neyland during a 30-day observational period
rather than a psychiatrist who spent only a little more than an hour with him.
Thus, reliable and credible evidence supports the trial court’s decision. We reject
proposition I.
2. Request for self-representation (Proposition of law XIV)
       {¶ 62} Neyland argues that the trial court erred by failing to grant his
request for self-representation.



                                           15
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                    a. Assertions and request for self-representation
        {¶ 63} During a pretrial hearing on December 11, 2007, Neyland told the
trial court:


                  I might be able, I might have to defend myself because I am
        not getting cooperation that I need from the public defender’s
        office.
                  And my credibility right now, I have 800 pages of
        prosecution here. I have no, I have nothing for discovery [from]
        the public defender’s office. I have 800 pages from October from
        the prosecution’s office, and I read the 800 pages. There is a
        credibility problem with every witness in here.


(Emphasis added.)
        {¶ 64} In response, the trial court encouraged Neyland to work with his
attorneys. The judge stated, “I realize that everyone in your circumstance is
nervous about their representation; but in view of the reports that I have received,
I would strongly encourage you to not * * * consider that.” The trial court’s
reference to “reports” appears to have been Dr. Sherman’s competency evaluation
that the parties had been discussing during this hearing. Neyland responded, “My
Sixth Amendments Rights have been violated.” But Neyland said nothing more
about representing himself.
        {¶ 65} During a pretrial hearing on February 12, 2008, the trial court
expressed concern about the possibility that Neyland would request self-
representation. The judge stated, “I’m hoping that he won’t raise this * * *. But
if at some point he expresses a clear and unequivocal request, then the Court is
going to have to rule on it and address it.” Adrian Cimerman, lead defense
counsel, stated that Neyland had “never seriously, if at all, raised the desire to




                                           16
                               January Term, 2014




represent himself.” J. Scott Hicks, assistant defense counsel, also stated, “He has
never expressed to me any desire to represent himself.”
       {¶ 66} During a pretrial hearing on August 25, 2008, the trial court asked
defense counsel if Neyland was insisting that counsel withdraw and represent
himself. Cimerman replied that Neyland was not.
       {¶ 67} On October 30, 2008, following the introduction of all the trial-
phase evidence, the trial judge stated that the deputies had informed him that
Neyland wanted to discuss representing himself.         The trial court stated, “I
definitely am not going to let him represent himself pro se at this time because
we’re done basically other than closing arguments.” Nevertheless, the trial court
allowed Neyland to make his request.
       {¶ 68} Neyland addressed the trial court and made the following remarks
about a pro se motion and his request for self-representation:


               Thank you, Your Honor. The first question I need to ask
       you is I understand that the addendum to Motion 44 was not filed
       in a timely manner. There is some information from the witnesses
       that was testified to on the witness stand that is included in the
       addendum, and I would like to only address that during a
       presentation. I would like to mount my own defense from the
       defense table and counsel with counsel’s assistance. I am not
       requesting to be a witness. I’m not a witness. I am introducing
       myself to the jury because they do not have any background
       information, personal background information, family background
       information, and I have no defense witnesses.


(Emphasis added.)




                                         17
                             SUPREME COURT OF OHIO




        {¶ 69} Neyland then discussed his concerns about the defense. Neyland
claimed that there were discrepancies in witness statements that “I would like to
read” and mentioned his desire to read court cases into the record that involved
him and his previous employers. Neyland also discussed his unhappiness with
counsel because they failed to use his notes during cross-examination.
        {¶ 70} In response, the trial judge told Neyland that he had noticed that his
counsel were paying attention to him when he offered points. The trial court
stated, “I’m sure they determined that they just weren’t proper issues because you
don’t understand what is a proper issue before the Court. So, again, I’m going to
deny your request to represent yourself.” There was no further discussion about
self-representation.
                                     b. Analysis
        {¶ 71} “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.” State v. Gibson, 45 Ohio St.2d 366,
345 N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). If a trial court
denies the right to self-representation when the right has been properly invoked,
the denial is per se reversible error. State v. Reed, 74 Ohio St.3d 534, 535, 660
N.E.2d 456 (1996), citing McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct.
944, 79 L.Ed.2d 122 (1984), fn. 8.
        {¶ 72} The assertion of the right to self-representation must be clear and
unequivocal. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d
97, ¶ 68; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3571, 772 N.E.2d 81,
¶ 38.   A request for self-representation may be denied when circumstances
indicate that the request is made for purposes of delay or manipulation of the trial
process. See United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.2000).




                                         18
                                  January Term, 2014




          {¶ 73} First, Neyland argues that the trial court erred in failing to grant his
request for self-representation on December 11, 2007. On that occasion, Neyland
told the trial court that he “might have to defend himself” at the same time that he
was voicing his frustration about getting discovery from the public defender’s
office.    Other courts have held that a request for self-representation is not
unequivocal if it is a “ ‘momentary caprice,’ or the result of thinking out loud,’ ”
Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990), quoting Adams v. Carroll, 845
F.2d 1441, 1445 (9th Cir.1989), or the result of frustration, Reese v. Nix, 942 F.2d
1276, 1281 (8th Cir.1991) (defendant merely expressed frustration and did not
clearly invoke his right of self-representation).        Similarly, we conclude that
Neyland was expressing his frustration and not clearly invoking his right to self-
representation.
          {¶ 74} Defense counsel confirmed that Neyland was not invoking his right
to self-representation. Counsel told the trial court during a pretrial hearing on
February 12, 2008, that Neyland had “never seriously, if at all, raised the desire to
represent himself.” Thus, we reject Neyland’s claim that his request for self-
representation on December 11, 2007, was improperly denied.
          {¶ 75} Second, Neyland argues that the trial court erred in failing to grant
his request for self-representation after the state’s case-in-chief was completed.
Neyland informed the court at that time that “I would like to mount my own
defense.”
          {¶ 76} A trial court may deny a defendant’s request for self-representation
if it is untimely made. In Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772
N.E.2d 81, at ¶ 40, the court held that a defendant’s request to represent himself
made three days before trial was untimely. Other courts have also found that a
request for self-representation can be denied when the request is untimely. See,
e.g., United States v. Young, 287 F.3d 1352, 1354 (11th Cir.2002) (“a defendant’s
request to proceed pro se is untimely if not made before the jury is empaneled”);



                                            19
                             SUPREME COURT OF OHIO




Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir.2007) (“Wood did not move to
proceed pro se until after the jury had already returned a guilty verdict against
him, immediately before the sentencing phase of his [capital-murder] trial, and the
trial court therefore had the discretion to deny the motion” [emphasis sic]); United
States v. Smith, 413 F.3d 1253, 1281 (10th Cir.2005) (request made six days
before trial untimely).
       {¶ 77} Neyland’s request for self-representation was untimely because he
did not make it until just before the beginning of the trial-phase closing
arguments. Thus, we hold that the trial court did not err in denying Neyland’s late
request for self-representation.
       {¶ 78} But Neyland argues that the trial court sidestepped the issue and
never addressed his request to waive counsel. Upon learning of Neyland’s intent
to request self-representation, the trial court informed the parties that he was
going to deny this request because it was untimely. Nevertheless, the trial court
allowed Neyland to make his request for self-representation and voice any other
concerns that he had about the proceedings. After Neyland finished, the trial
court said, “You’ve raised these issues, and the Court is denying your request at
this time.” Thus, the record shows that the trial court did consider Neyland’s
request for self-representation and denied it for being untimely.
       {¶ 79} Neyland also argues that the trial court erred by failing to consider
whether he was competent to represent himself. See Indiana v. Edwards, 554
U.S. 164, 177-178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). However, the trial
court did not need to determine Neyland’s competency to represent himself,
because Neyland’s underlying request was untimely.
       {¶ 80} Based on the foregoing, we reject proposition XIV.
3. Leg restraints (Propositions of law II and III)
       {¶ 81} In proposition of law II, Neyland argues that the trial court erred
when it ordered Neyland to wear leg restraints without a valid reason.




                                          20
                                January Term, 2014




       {¶ 82} No one should be tried while shackled, absent unusual
circumstances. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837
N.E.2d 315, ¶ 219, citing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25
L.Ed.2d 353 (1970). The use of restraints tends to erode the presumption of
innocence that the justice system attaches to every defendant. State v. Franklin,
97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79. But it is widely accepted
that a prisoner may be shackled when there is a danger of violence or escape.
State v. Woodards, 6 Ohio St.2d 14, 23, 215 N.E.2d 568 (1966). The decision to
require restraints is left to the sound discretion of the trial court, which is in a
position to consider the prisoner’s actions both inside and outside the courtroom,
as well as his demeanor while the court is in session. Franklin at ¶ 79.
                             a. Rulings on leg restraints
       {¶ 83} On April 10, 2008, defense counsel filed a motion requesting that
Neyland appear at all proceedings without restraints. On June 2, 2008, the trial
court denied this motion.
       {¶ 84} On August 25, 2008, during a pretrial session outside the
defendant’s presence, the trial court discussed the potential that Neyland might
become disruptive during trial based on his propensity “to insist on certain subject
matters being addressed” and that “he may become out of control a little bit” if
the court “rules against him on relevance.” The trial court added, “I don’t know
what we can do other than obviously using some sort of restraint, but I guess now
is the time to talk about it so that we’re not all caught off guard.” The court also
said, “Other than that he’s been pretty well-behaved.”
       {¶ 85} In response, defense counsel said, “In fairness to Calvin it’s hard to
predict, he’s very unpredictable, but I would anticipate he would be
demonstrative, not necessarily disruptive.” Defense counsel also mentioned that
he has had previous clients wear leg shackles that were hidden from the jury by an
apron in front of counsel’s table.



                                         21
                              SUPREME COURT OF OHIO




       {¶ 86} During pretrial proceedings on September 24, 2008, the trial court
stated that it was considering having Neyland wear either leg irons or some other
leg restraint under his pants and that placing skirting around the table would
ensure that the jury could not see that Neyland was restrained. The trial court also
mentioned that there would be two or three deputies in the courtroom.
       {¶ 87} During pretrial proceedings on October 8, 2008, the bailiff
indicated that a leg restraint had been found that would fit Neyland. He stated
that Neyland would walk with a “slight gate [sic],” apparently meaning that
Neyland’s gait would be       slightly impaired.     During pretrial proceedings on
October 15, 2008, the trial court stated that a leg restraint would be used and that
a skirt around the defense counsel’s table would not be necessary.
       {¶ 88} After trial began, the state filed a motion to have Neyland wear two
leg restraints because he had figured out how to manipulate the single one.
During a hearing on the motion, the trial court asked defense counsel if they
wanted to have an evidentiary hearing. Defense counsel responded, “We’ll leave
it up to the sheriff’s department.” Defense counsel added, “My experience with
leg braces, * * * the defendant has figured out how to unlock it or manipulate it or
something, which I think that’s not a secret how to do that. * * * Again, * * *
let’s not do anything at this point unless the sheriff thinks it’s appropriate.”
       {¶ 89} The trial court then stated:


               And he is obviously a big individual. We have tried to do
       the most we could in terms of not restraining him certainly in a
       visible way, and that’s our effort is to not have the jury even be
       aware. From what I’ve been able to see thus far, no one would
       even know. What I think I’ll do is authorize it but leave it at the
       discretion of the sheriff’s department. Does that seem fair? And if
       they feel it’s appropriate, they can do it.




                                          22
                               January Term, 2014




       {¶ 90} Both the prosecutor and the defense counsel expressed their
agreement. The trial court said, “We’ll leave it at that. That will be the order of
the Court.” Subsequently, the trial court issued an order granting the state’s
motion to require Neyland to wear a second leg restraint at trial “if deemed
necessary by the Wood County Sheriff.”
                                   b. Analysis
                              (1) First leg restraint
       {¶ 91} Neyland claims that the trial court ordered him to wear restraints
without any showing that restraints were necessary because of his disruptive
behavior.
       {¶ 92} The trial court granted the state’s request on shackling without first
conducting a hearing to consider whether evidence showed that shackling was
necessary. We continue to emphasize that prior to ordering a defendant to wear
restraints, the trial court should hold a hearing on the matter. Franklin, 97 Ohio
St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, at ¶ 82.
       {¶ 93} The United States Court of Appeals for the Sixth Circuit has held
that when considering whether to physically restrain a defendant during trial, the
court should conduct a formal hearing with sworn testimony to resolve factual
disputes and preserve the appellate record. United States v. Perry, 401 Fed.Appx.
56, 63 (6th Cir.2010) However, the United States Supreme Court has not held
that such a hearing is required. See Deck v. Missouri, 544 U.S. 622, 629, 125
S.Ct. 2007, 161 L.Ed.2d 953 (2005).
       {¶ 94} We have also held that a hearing on the necessity for restraints is
not an “absolute rule.” Franklin at ¶ 82. In Franklin, we stated, “Where the facts
and circumstances surrounding a defendant illustrate a compelling need to impose
exceptional security procedures, the trial court’s exercise of discretion in this




                                        23
                            SUPREME COURT OF OHIO




regard should not be disturbed unless its actions are not supported by the evidence
before it.” (Emphasis added.) Id.
       {¶ 95} While there was no formal hearing, the trial court’s reasons for
ordering Neyland to wear a leg restraint can be gleaned from the record. During
the pretrial session on August 25, 2008, the judge voiced his concerns about
Neyland’s potential for disruptive courtroom behavior. Defense counsel stated
that Neyland was “very unpredictable” and acknowledged that he “would be
demonstrative, not necessarily disruptive.”
       {¶ 96} The trial court had observed Neyland’s demeanor in court. The
trial court had also heard two psychologists and two psychiatrists testify at the
competency hearing about Neyland’s bizarre thinking and paranoid behavior.
The trial court was also mindful that Neyland was a large man and that sheriff’s
deputies might have difficulty in handling him if he became disruptive.
Neyland’s driver’s license stated that he stood six feet, three inches tall and
weighed 250 pounds.
       {¶ 97} Yet nothing shows that Neyland had been disruptive in court or had
been violent or disruptive in jail. Indeed, the trial court stated that Neyland had
been “pretty well-behaved.” Compare Franklin, 97 Ohio St.3d 1, 2002-Ohio-
5304, 776 N.E.2d 26, at ¶ 80-81 (defendant demonstrated a propensity for
violence and a psychologist described him as a “time bomb waiting to happen”);
Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 55 (defendant
had a history of violent felonies and committed a murder in prison).
       {¶ 98} The trial court provided limited reasoning as to why it found a
compelling need to keep Neyland shackled. Yet the trial judge was in a position
to consider Neyland’s actions inside and outside the courtroom and voiced his
concerns about Neyland’s potential for disruptive courtroom behavior. A “court
need not sit by helplessly waiting for a defendant to commit a violent or
disruptive act in the courtroom before being cloaked with the power to invoke




                                        24
                                January Term, 2014




extra security measures.” Franklin at ¶ 79. Thus, we hold that the trial court did
not abuse its discretion in ordering Neyland to wear a leg restraint.
                              (2) Second leg restraint
       {¶ 99} After trial began, the trial court granted the state’s request for
Neyland to wear a second restraint, but left it to “the discretion of the sheriff’s
department.” As an initial matter, the record is unclear whether Neyland was
actually placed in a second leg restraint following the trial court’s ruling. In any
event, defense counsel failed to object and thus waived all but plain error.
       {¶ 100} Neyland argues that the trial court erred by leaving the final
decision on wearing a second restraint to the sheriff’s discretion. “The trial court
must exercise its own discretion and not leave the issue up to security personnel.”
State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 104; see
also United States v. Miller, 531 F.3d 340, 345-346 (6th Cir.2008).
       {¶ 101} Accordingly, the trial court erred by leaving the final decision on
wearing a second leg restraint to the sheriff’s discretion.
       {¶ 102} Even assuming that Neyland wore a second restraint for the
remainder of the trial, we hold that there was no plain error. The leg restraints
were under Neyland’s pants and not visible to the jury. But Neyland argues that
when he went to the podium to make an unsworn statement during the mitigation
phase of the trial, his constrained movements must have been visible to the jury.
However, nothing in the record indicates that the jury observed Neyland walking
with constrained movements before he made his unsworn statement. Neyland
bears the burden on plain-error review, and he has not met that burden. Thus, this
claim is rejected. See Miller, 531 F.3d at 347.
                               (3) Defense arguments
       {¶ 103} Neyland argues that the trial court failed to consider lesser
alternatives, such as the employment of extra deputies, before ordering that he
wear leg restraints. Some Ohio courts of appeals have held that a trial court has



                                          25
                              SUPREME COURT OF OHIO




“a duty to determine whether there is a ‘less prejudicial but adequate means of
providing security’ ” before ordering restraints.      State v. McCree, 5th Dist.
Richland No. 10CA133, 2011-Ohio-4114, 2011 WL 3652755, ¶ 14, quoting Lakin
v. Stine, 431 F.3d 959, 964 (6th Cir.2005); State v. Davis, 2d Dist. Clark No. 2011
CA 15, 2012-Ohio-1225, 2012 WL 996909, ¶ 15; State v. Mitchell, 6th Dist.
Williams No. WM-05-004, 2006-Ohio-5117, 2006 WL 2790333, ¶ 29.
        {¶ 104} The trial court did discuss the use of deputies to provide
courtroom security. The trial court also discussed the option of using a stun belt.
The bailiff stated that two uniformed deputies would be with the defendant at all
times. But the presence of additional deputies was not discussed as a lesser
alternative to the use of leg restraints.
        {¶ 105} The trial court should have considered whether there were lesser
alternatives to the use of leg restraints to provide adequate courtroom security.
Nevertheless, the trial court used restraints that were not visible to the jury rather
than shackles or other visible types of restraints. Even though the record is
unclear, it appears that the trial court considered the presence of deputies and the
use of leg restraints as the least form of restraint necessary to ensure courtroom
security. Under these circumstances, we reject this claim.
        {¶ 106} Finally, Neyland argues that the leg restraints inhibited his
interaction with defense counsel and thus interfered with his Sixth Amendment
right to counsel. However, the defense never asserted that restraints interfered
with the attorney-client relationship and thus waived all but plain error.
        {¶ 107} No plain error occurred. Nothing in the record indicates that
Neyland’s leg restraints inhibited his communication with counsel with respect to
his defense. Both of Neyland’s hands were free throughout the trial. Neyland
also does not claim that the restraints impeded his ability to follow the
proceedings and take an active interest in the presentation of his case. Indeed,
when asking to represent himself, Neyland said that he had taken pages and pages




                                            26
                                   January Term, 2014




of notes that he wanted counsel to use during cross-examination. The trial court
responded, “I noticed that they [defense counsel] were paying attention to you
when you offered points.” See State v. Chester, 10th Dist. Franklin No. 08AP-1,
2008-Ohio-6679, 2008 WL 5265860, ¶ 14.
                    (4) Harmless error beyond a reasonable doubt
          {¶ 108} Even assuming that the trial court abused its discretion in ordering
Neyland shackled, we find that such error was harmless. Nothing in the record
shows that the jury observed Neyland in leg restraints, and he was not prejudiced.
          {¶ 109} Moreover, even if the jurors observed Neyland in shackles, any
error was harmless beyond a reasonable doubt.


                [W]here a court, without adequate justification, orders the
          defendant to wear shackles that will be seen by the jury, the
          defendant need not demonstrate actual prejudice to make out a due
          process violation. The State must prove “beyond a reasonable
          doubt that the [shackling] error complained of did not contribute to
          the verdict obtained.”


(Emphasis added.) Deck, 544 U.S. at 635, 125 S.Ct. 2007, 161 L.Ed.2d 953,
quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967).
          {¶ 110} The state can meet this burden because overwhelming evidence of
Neyland’s guilt was presented at trial.         Evidence showed that Neyland was
scheduled to meet with Lazar and Smith about the termination of his employment
as a truck driver with Liberty Transportation. After arriving at Liberty, Neyland
shot Lazar several times in the back and then walked upstairs to Smith’s office
and shot him once in the head. Neyland’s murder of Smith can be heard on a 9-1-
1 tape that was introduced at trial. A handgun was found in Neyland’s truck after



                                           27
                              SUPREME COURT OF OHIO




the police arrested him. Forensic testing matched this handgun with bullets and
shell casings found at the murder scene and with a bullet recovered from the
autopsy of Thomas Lazar. Gunshot residue was found on Neyland’s hands.
Investigators also found pieces of paper in Neyland’s storage unit on which three
pennies were arranged in a triangular pattern that matched the triangular gunshot
pattern on Lazar’s back. The paper contained the words, “OOOO, I’m so scared.
Three Round Shot Group.”          There was also the statement, “You think I’m
playing[.] You’re gonna come up missing!!!” Thus, there is little chance that leg
restraints, even if observable, affected the verdict or the sentence in this case.
       {¶ 111} In proposition of law III, Neyland argues that defense counsel
provided ineffective assistance of counsel by failing to object to the trial court’s
order that he wear leg restraints. Neyland also argues that counsel was deficient
by failing to set forth the relevant case law on this issue.
        {¶ 112} Reversal of a conviction for ineffective assistance requires that the
defendant show, first, that counsel’s performance was deficient and, second, that
the deficient performance prejudiced the defense so as to deprive the defendant of
a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), paragraph two of the syllabus.
        {¶ 113} Contrary to Neyland’s claim, the record shows that defense
counsel filed a pretrial motion asking that Neyland appear at all proceedings
without restraints.    Review of defense counsel’s motion also shows that it
included citations to relevant case law.
        {¶ 114} Yet defense counsel failed to renew their objection when the state
requested that Neyland be ordered to wear a second leg restraint. The record is
unclear whether Neyland was actually placed in a second restraint after the trial
court’s order. But even assuming that he was, he cannot establish any resulting
prejudice, because nothing shows that the leg restraints were visible to the jury.




                                           28
                                 January Term, 2014




See State v. Ayers, 12th Dist. Warren Nos. CA2010-12-119 and CA2010-12-120,
2011-Ohio-4719, 2011 WL 4346678, ¶ 61. Thus, this claim lacks merit.
         {¶ 115} Based on the foregoing, we overrule propositions II and III.
4. Failure to file motions to suppress (Proposition of law VII)
         {¶ 116} Neyland argues that trial counsel were ineffective by failing to file
motions to suppress his statements to police and the evidence seized from the
search of his motel room.
         a. Failure to challenge admission of Neyland’s pretrial statements
         {¶ 117} Under Strickland, Neyland must demonstrate that trial counsel
were deficient. This requires Neyland to establish that a basis existed to suppress
his pretrial statements. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d
29, at ¶ 35.
         {¶ 118} The state introduced statements Neyland made to the SWAT team
at the time of his arrest outside the Silver Blue Motel.           Det. Sgt. Enrico
Galimberti, the SWAT team leader, testified that Neyland was removed from his
tractor and placed on the ground with his hands out to the side. According to
Galimberti, Neyland blurted out, “I was going to turn myself in.” He also said, “I
want the letter. There’s a letter in my truck. It’s to my brother. It’s my last will.
Can I get that letter?” Before handcuffing Neyland, Galimberti asked Neyland if
he had any weapons. Neyland responded, “No, the gun is in the truck by the
door.”
         {¶ 119} First, the requirement that police officers administer Miranda
warnings applies only when a suspect is subjected to both custody and
interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966) (prohibiting “custodial interrogation” without warnings). Neyland
was arrested and almost immediately stated that he was going to turn himself in
and wanted the letter containing his last will that was in the tractor.           An
unsolicited and spontaneous statement such as the one made by Neyland in this



                                          29
                            SUPREME COURT OF OHIO




case is not the product of interrogation, so Miranda does not apply. Rhode Island
v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v.
Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24.
       {¶ 120} Second, under the public-safety exception to Miranda established
in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984),
police officers can ask a suspect questions without first giving Miranda warnings
if they reasonably believe it is “necessary to secure their own safety or the safety
of the public.” Id. at 659. Recognizing a “narrow exception” to the Miranda rule,
id. at 658, Quarles reasoned that “the need for answers to questions in a situation
posing a threat to the public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment’s privilege against self-incrimination.” Id. at
657. Galimberti asked Neyland about the whereabouts of a weapon, because a
gun had been used recently in killing Lazar and Smith. Moreover, Neyland was
arrested in the parking area of a motel and the firearm would have posed a threat
to public safety. Thus, Galimberti’s questioning appears to have been warranted
by the public-safety exception to Miranda.
       {¶ 121} Neyland argues that trial counsel should have filed a motion to
suppress his statements because of his history of mental-health problems,
including, at a minimum, a severe personality disorder. However, Neyland’s
mental problems would not serve as a basis for challenging either Neyland’s
unsolicited and spontaneous statements or his response to the question about
weapons. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d
473 (1986).
       {¶ 122} Trial counsel could have decided that any motion to suppress
Neyland’s statements to the police would have been pointless. See Adams, 103
Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at ¶ 38. Accordingly, we hold
that trial counsel were not deficient by failing to challenge the admissibility of
Neyland’s pretrial statements.




                                        30
                                 January Term, 2014




                        b. Failure to challenge search warrant
         {¶ 123} Neyland argues that his counsel were ineffective by failing to file
a motion to suppress the evidence seized during the search of his motel room.
The search yielded numerous weapons and other evidence that was admitted at
trial.
         {¶ 124} Following Neyland’s arrest, Michigan authorities obtained a
search warrant for what they believed to be Neyland’s motel room. A search of
that room uncovered no evidence. On the following day, the police learned that
they had searched the wrong room. Monroe County Sheriff’s Detective Tom
Redmond then obtained a search warrant for the motel room where Neyland had
actually stayed. Police searching that motel room seized an array of firearms and
ammunition, a stun gun, handcuffs, and a couple of Hawaiian shirts.
         {¶ 125} During trial, Neyland filed a pro se motion challenging the
legality of the search warrant used in searching his motel room. The trial court
denied the motion as not timely filed. Following the completion of the state’s
case, the trial court revisited Neyland’s motion, stating:


         After hearing the testimony, and, by the way, I ruled that it was not
         timely filed. Now that I have heard the testimony on all of it and
         have these exhibits, I do find that there is no basis to take those
         back. There was certainly probable cause for each of these search
         warrants.   They appeared to be only obtained after there was
         probable cause, and they appeared to be properly executed. So I’m
         going to so rule at this time and consider, since the motion wasn’t
         filed in time to have a separate hearing on that issue, the Court is
         going to determine it on its own based on the exhibits.




                                          31
                            SUPREME COURT OF OHIO




       {¶ 126} “ ‘Where the record contains no evidence which would justify the
filing of a motion to suppress, the appellant has not met his burden of proving that
his attorney violated an essential duty by failing to file the motion.’ ” State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208,
quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980).
Further, “ ‘failure to file a suppression motion does not constitute per se
ineffective assistance of counsel.’ ” State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986).
       {¶ 127} Neyland specifies no reason why the search warrant could have
been legitimately challenged.    The affidavit for the search warrant provided
detailed facts supporting probable cause for the search of Neyland’s motel room.
The search warrant specified the location to be searched (the motel room) and the
property to be searched for and seized (9 mm handgun and other weapons and
evidence pertinent to the investigation). Thus, the warrant was valid.
       {¶ 128} Moreover, the trial court ultimately found that there was probable
cause for the search of the motel room. Thus, Neyland cannot show that he was
prejudiced by trial counsel’s failure to file a motion to suppress. This claim also
lacks merit.
       {¶ 129} Based on the foregoing, we overrule proposition VII.
5. Jury selection (Proposition of law XI)
       {¶ 130} Neyland argues that the trial court erred in excusing four
prospective jurors. He argues that under Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968), and R.C. 2945.25(C), it is improper to excuse
a prospective juror for cause in the death-qualification process unless that juror
unequivocally states that he would not recommend death under any
circumstances.




                                        32
                                 January Term, 2014




       {¶ 131} However, the constitutional standard for determining when a
prospective juror may be excluded for cause based upon his or her views on
capital punishment is whether the juror’s views would prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841
(1985); State v. Rogers, 17 Ohio St.3d 174, 478 N.E.2d 984 (1985), paragraph
three of the syllabus. This court has held that if a juror satisfies the Witt criterion,
he may be excluded for cause under the catch-all provision of R.C. 2945.25(O)
even though he does not satisfy the more specific R.C. 2945.25(C). State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 40. Thus, we
evaluate Neyland’s claim under the Witt standard.
       {¶ 132} First, Neyland argues that the trial court abused its discretion in
excusing prospective juror No. 17, because this juror stated that he could follow
the court’s instructions. During voir dire, juror No. 17 stated that he could follow
the court’s instructions “in most cases.” When asked to explain, juror No. 17
stated that “there is a thing called juror nullification that I might have to consider
given the certain circumstances, which I think would be rare.” The trial court
then asked, “You understand that if you did do that, you would be violating your
oath as a juror?” Juror No. 17 replied, “Well, I think there is a higher oath than
this.” Over defense objection, the trial court excused this juror for cause, because
“he just couldn’t unequivocally indicate he would follow the Court’s instruction.”
       {¶ 133} A trial court’s resolution of a challenge for cause will be upheld
on appeal unless it is unsupported by substantial testimony. Williams at ¶ 45.
Juror No. 17 refused to promise to follow the trial court’s instructions and
reserved the right to consider engaging in juror nullification in some
circumstances. Thus, the trial court did not abuse its discretion in excusing this
juror for cause.




                                          33
                             SUPREME COURT OF OHIO




       {¶ 134} Second, Neyland argues that the trial court abused its discretion in
excusing prospective juror No. 24 for cause, because that juror stated that she
could vote to impose the death penalty, even though she expressed reluctance to
provide a blanket “yes” that would cover all contingencies. Juror No. 24 was
opposed to the death penalty. She provided contradictory answers as to whether
she would follow the instructions on the death penalty. Juror No. 24 told the trial
court, “I could follow [the instructions]; but I don’t know if my view would
change or not. I can’t say at this time.” She also told the prosecutor, “I honestly
can’t say” when asked whether she would follow such instructions. Juror No. 24
told defense counsel, “Yeah, I guess I would consider that.”           Over defense
objection, juror No. 24 was excused for cause.
       {¶ 135} This juror’s final statement to defense counsel, viewed in
isolation, does not suggest that she would be substantially impaired in performing
her duties as a juror. “However, where a prospective juror gives contradictory
answers on voir dire, the trial judge need not accept the last answer elicited by
counsel as the prospective juror’s definitive word. * * * Rather, ‘it is for the trial
court to determine which answer reflects the juror’s true state of mind.’ ” State v.
Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 66, quoting State
v. Jones, 91 Ohio St.3d 335, 339, 744 N.E.2d 1163 (2001).              Juror No. 24
equivocated on whether she would follow the trial court’s instructions. Thus,
substantial evidence supported excluding this juror. We hold that the trial judge
did not abuse his discretion in doing so. See State v. Bethel, 110 Ohio St.3d 416,
2006-Ohio-4853, 854 N.E.2d 150, ¶ 123.
       {¶ 136} Third, Neyland argues that the trial court abused its discretion in
excusing prospective juror No. 55, because this juror provided “strong answers”
indicating that she could follow the law. Juror No. 55 stated that she “would have
a hard time doing it,” but she would follow the instructions on the death penalty,
“[i]f legally I have to do it.” There was also the following exchange:




                                         34
                                 January Term, 2014




                  The Court: So there are some times when you could get by
       your personal beliefs and impose the death penalty?
                  Juror 55: Possibly.
                  The Court: You’re still hedging on me here.
                  Juror 55: I know I am. I cannot say 100 percent, yes, I
       could do it or, no, I cannot, first of all because I’ve never truly had
       to make that decision on somebody’s life. And we all think about
       it. But when it truly comes down to me having to make that
       decision in that instance when I had to answer that, I still go, I’m
       not a hundred percent convinced either way.


       {¶ 137} The trial court, over defense objection, excused juror No. 55 for
cause, stating:


                  She was not unequivocal about anything. And if that’s an
       understatement, I apologize. I’m going to find that her beliefs do
       impair her ability to serve as a juror. Even though she did seem to
       voice some desire to please the Court, she also seemed to indicate
       that her personal beliefs were such that she just couldn’t do it. So
       that’s a close call, I have to admit * * *.


       {¶ 138} The record supports the trial court’s decision to excuse juror No.
55. She provided equivocal responses on her ability to follow the trial court’s
instructions on the death penalty. Moreover, on her juror questionnaire, juror No.
55 responded “No” when asked whether she could “consider fairly” the court’s
instructions on the death penalty.




                                          35
                            SUPREME COURT OF OHIO




       {¶ 139} Neyland argues that juror No. 55 should not have been excused
because the trial court acknowledged that his decision was a “close call.” But the
trial court’s determination that juror No. 55 was impaired is entitled to deference.
Where, as here, a juror gives conflicting answers, it is for the trial court to
determine which answer reflects the juror’s true state of mind. Jones, 91 Ohio
St.3d at 339, 744 N.E.2d 1163.
       {¶ 140} Finally, Neyland argues that the trial court abused its discretion in
excusing prospective juror No. 111 for cause, because this juror expressed his
willingness to follow the law. Juror No. 111 stated that his religious beliefs
would make it difficult to impose the death penalty: “I believe that * * * God has
that say of whether to take life. And again, only as a last resort and if I’m
commanded to by you people.         But I certainly wouldn’t want to make that
decision by any means if I didn’t have to, you know.” Juror No. 111 also
acknowledged that his religious beliefs “would be a factor” in weighing the
aggravating circumstances and the mitigating factors. But Juror No. 111 also
stated that he would “follow the law.” Over defense objection, juror No. 111 was
excused for cause.
       {¶ 141} “A prospective juror’s conscientious or religious opposition to the
death penalty in and of itself is not grounds for a challenge for cause.” State v.
Treesh, 90 Ohio St.3d 460, 468, 739 N.E.2d 749 (2001). But juror No. 111’s
answers demonstrate that his strong religious views might impair his ability to
perform his duties as a juror. Indeed, he indicated that he would recommend
death “only * * * if I’m commanded to by you people,” which would never
happen.
       {¶ 142} Moreover, the trial court had also reviewed juror No. 111’s
questionnaire.   On the questionnaire, the prospective jurors were asked, “If
instructed by the Court to consider fairly the imposition of a sentence of death,
would you be able to follow the Instruction?” Juror No. 111 responded, “If this




                                        36
                                 January Term, 2014




court or my country asked me to and I had no other choice I guese [sic] I would
have to, I really believe it is up to god weather [sic] we live or die, I believe it is
God desicision [sic].”
          {¶ 143} Here again, the trial court’s determination that juror No. 111’s
religious views “would substantially impair the performance of his duties” is
entitled to deference. See Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854
N.E.2d 150, at ¶ 126. We hold that the trial court did not abuse its discretion in
excusing this juror for cause. Proposition XI is overruled.
6. Prosecutorial misconduct (Proposition of law XII)
          {¶ 144} Neyland argues that the prosecutor committed misconduct by
making improper victim-impact comments and eliciting improper victim-impact
testimony. But defense counsel failed to object to the prosecutor’s comments and
questions and thus waived all but plain error. State v. Childs, 14 Ohio St.2d 56,
236 N.E.2d 545 (1968), paragraph three of the syllabus.
          {¶ 145} The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial
rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The
touchstone of the analysis “is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982).
          {¶ 146} First, Neyland argues that the prosecutor committed misconduct
during opening statements by remarking, “I’d really like to introduce you to Doug
Smith and Tomm Lazar, unfortunately I’m never going to be able to do that
because the Defendant, Calvin Neyland, Jr., purposely killed them on August 8th,
2007.”     Neyland asserts that these comments were irrelevant to his guilt or
innocence and inflamed the passions of the jury.
          {¶ 147} During opening statements, counsel is accorded latitude and
allowed fair comment on the facts to be presented at trial. State v. Leonard, 104



                                          37
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Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 157.                 However, it is
questionable whether the prosecutor’s comment about Lazar’s and Smith’s
inability to appear was proper. See State v. Biros, 78 Ohio St.3d 426, 454, 678
N.E.2d 891 (1997) (prosecutor’s argument that unlike the defendant, the deceased
victim “did not have the opportunity to testify” was improper). But the comments
were brief and not overly emotional. Moreover, the trial court instructed the jury
that the opening statements of counsel were not evidence. Thus, no plain error
occurred.
       {¶ 148} Next, Neyland argues that the prosecutor committed misconduct
by presenting testimony that Lucinda Collins was Smith’s fiancée. During her
introductory testimony, Collins testified that she had been engaged to Smith for
two years. Neyland contends that such testimony constituted improper victim-
impact evidence.
       {¶ 149} “Evidence relating to the facts attendant to the offense is ‘clearly
admissible’ during the guilt phase, even though it might be characterized as
victim-impact evidence.” McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837
N.E.2d 315, at ¶ 98, quoting State v. Fautenberry, 72 Ohio St.3d 435, 440, 650
N.E.2d 878 (1995).
       {¶ 150} Collins’s preliminary testimony about her relationship with Doug
Smith explained why she was knowledgeable about Smith’s problems with
Neyland and laid the foundation for Collins’s later testimony about these matters.
See State v. Hartman, 93 Ohio St.3d 274, 293, 754 N.E.2d 1150 (2001). We hold
that Collins’s testimony was relevant, and no plain error occurred.
       {¶ 151} Based on the foregoing, we reject proposition XII.
7. Other weapons and ammunition (Proposition of law XV)
       {¶ 152} Neyland argues that the trial court erred in allowing the state to
introduce evidence of weapons and ammunition not related to the charged
offenses.




                                        38
                                  January Term, 2014




                                        a. Facts
        {¶ 153} The state presented photographs of weapons and ammunition that
the police seized during their search of Neyland’s motel room and storage units.
The state also presented a cooler bag containing a stun gun, two knives,
handcuffs, and 9 mm ammunition. These weapons and ammunition were not
linked to the murders themselves. But the state argued that such evidence was
relevant to prove Neyland’s prior calculation and design, which is an element of
the aggravated-murder charges. The trial court, over defense objection, permitted
police officers to testify about these weapons and ammunition and also admitted
their photographs.
                               (1) Neyland’s storage unit
        {¶ 154} Perrysburg Detective Monica Gottfried testified about the
weapons and ammunition found in one of Neyland’s storage units and used
photographs to show them to the jury. Four of these photographs displayed two
rifles with silencers and two cases of ammunition.          A separate photograph
displayed all the weapons and ammunition that the police found in the storage
unit, including at least six rifles.
                               (2) Neyland’s motel room
        {¶ 155} Perrysburg Detective James Gross testified about the weapons and
ammunition found in Neyland’s motel room. He said that “it appeared to be an
arsenal.”   Gross found weapons on the floor next to the bed.          He used a
photograph to show the weapons and ammunition after they had been placed on
the bed.    This photograph displayed two rifles, a handgun, several weapons
magazines, and boxes of ammunition. Gross also testified that a cooler bag found
in the room contained a camouflaged lock-blade knife, a folding-blade
Leatherman-style tool knife, a stun gun, a pair of handcuffs, and two magazines
loaded with 9 mm ammunition.




                                          39
                             SUPREME COURT OF OHIO




                                    b. Analysis
       {¶ 156} In State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911
N.E.2d 242, the state presented evidence about firearms and ammunition that
were seized from the defendant but not used in the murders. The trial court, over
defense objection, permitted testimony that 19 firearms not used in the murders
were found in the defendant’s basement. Id. at ¶ 102-103. The state argued that
the firearms in the basement were relevant in proving that Trimble murdered the
victim with prior calculation and design as charged in one of the aggravated-
murder counts. Id. at ¶ 105. This court stated: “We reject this argument because
the weapon used to kill [the victim] was unmistakably identified and admitted into
evidence. The other firearms were not used in [the victim’s] murder and thus had
no relevance to prove that Trimble murdered her with prior calculation and
design.” Id. at ¶ 106.
       {¶ 157} As in Trimble, the 9 mm handgun used in killing Lazar and Smith
was identified and admitted into evidence. The other weapons and ammunition
found in Neyland’s motel room and storage unit had no connection with the
murders. Thus, these other weapons and ammunition had no relevance in proving
Neyland’s prior calculation and design as charged in the aggravated-murder
offenses. We hold that the trial court erred in admitting this other evidence.
                                 c. Harmless error
       {¶ 158} We must now determine whether the erroneous admission of the
weapons and ammunition constituted harmless error. “Nonconstitutional error is
harmless if there is substantial other evidence to support the guilty verdict.” State
v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994). In Trimble, we
employed such an analysis in finding that the error in admitting the firearms was
harmless.   In that case, we found that overwhelming evidence established
Trimble’s guilt. Id. at ¶ 111. We also concluded that the jury did not impose the
death penalty based on the fact that Trimble owned many firearms. Id. In




                                         40
                                January Term, 2014




reaching that conclusion, we emphasized that the firearms found in the basement
were not readmitted during the penalty phase. Id.
        {¶ 159} As discussed in proposition II, overwhelming evidence was
introduced that established Neyland’s guilt. Moreover, the evidence of Neyland’s
other weapons and ammunition was less prejudicial than the presentation of such
evidence in Trimble. In Trimble, the state displayed the weapons and ammunition
upon two long tables in the courtroom during the testimony of one of the police
officers. Id. at ¶ 114. The trial court also allowed the firearms to be in the jury
room during the trial-phase deliberations. Id. at ¶ 115. In contrast, the prosecutor
in the present case introduced mostly photographs of the firearms and
ammunition, and the photographs were not readmitted during the penalty phase.
Thus, we conclude that the jury did not impose the death penalty because of the
other weapons and ammunition. Proposition XV is overruled.
                              B. Penalty-phase issues
1. Former testimony (Proposition of law XIII)
        {¶ 160} Neyland argues that the trial court erred in admitting the former
testimony of Dr. Delaney Smith as a rebuttal witness in the penalty phase,
because it violated his right to confrontation and due process.
                                      a. Facts
        {¶ 161} Dr. Thomas G. Sherman, a psychiatrist, testified as a defense
mitigation witness.   Dr. Sherman had conducted a competency evaluation of
Neyland, and he testified during mitigation that “it was crystal clear to me that
[Neyland] had a mental illness, and I thought he was incompetent to stand trial.”
Dr. Sherman diagnosed Neyland with “[o]ne * * * a delusional disorder, a
persecutory type. And second * * * schizophrenia, a more severe form of that
illness.”
        {¶ 162} Dr. Sherman provided examples of Neyland’s behavior that
supported his findings. First, Neyland moved out of his house and into his truck



                                         41
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because he believed that people were breaking into his house to listen to his
answering machine.          Second, Neyland mentioned that prophylactics were
showing up all the time in his laundry. Finally, Neyland left bizarre notes in his
storage unit saying, “I’m so scared” and other comments possibly related to the
killings.
        {¶ 163} As it relates to the mitigating factors, Dr. Sherman testified that at
the time of committing these offenses, because of a mental disease or defect,
Neyland lacked substantial capacity to conform his conduct to the requirements of
the law.1 Dr. Sherman concluded, “[A]ll of this indicates to me [that] he had a
severe mental illness of a paranoid type, that he suspected virtually everybody of
something, that probably would have not taken very much to tip him off.”
        {¶ 164} The state called Dr. Barbra Bergman and Dr. Kristen Haskins as
rebuttal witnesses. Both witnesses had also conducted competency evaluations of
Neyland. Dr. Bergman, a psychologist, testified that Neyland was not suffering
from a mental illness but had a severe personality disorder. Dr. Bergman stated
that she could not determine whether Neyland lacked substantial capacity to
appreciate the criminality of his conduct because Neyland would not talk to her
about his criminal conduct.
        {¶ 165} Dr. Haskins, a psychologist, testified that Neyland had a “mixed
personality disorder.” She stated, “[H]e’s capable of choosing his behaviors and
actions and of making decisions. And there were no indications that those were
tainted by any kind of severe mental illness.”
        {¶ 166} Dr. Delaney Smith, a psychiatrist, was also a rebuttal witness,
although she was not present for the hearing. The prosecutor sought to introduce
Dr. Smith’s former testimony at the competency hearing in lieu of calling her as a

1
  The R.C. 2929.04(B)(3) statutory mitigating factor states, “Whether, at the time of committing
the offense, the offender, because of a mental disease or defect, lacked substantial capacity to
appreciate the criminality of the offender’s conduct or to conform the offender’s conduct to the
requirements of the law.”




                                              42
                                January Term, 2014




witness in the penalty phase, because she was on maternity leave. The prosecutor
stated that Dr. Smith had been subpoenaed, but that the legal department at Twin
Valley Behavioral Health Care, where Dr. Smith worked, notified the state that
Dr. Smith was unavailable because she was on maternity leave. The prosecutor
also presented a letter from a nursing supervisor at Twin Valley, dated November
3, 2008, stating that Dr. Smith was aware of the subpoena, but was currently on
maternity leave and “will be unavailable until after the first of the year.”
       {¶ 167} Defense counsel objected to admitting Dr. Smith’s former
testimony from the competency proceedings during mitigation, arguing that “the
issue before the Court at that time is significantly different than the issue before
the jury today.” The defense asked that Dr. Smith’s testimony be excluded, on
the basis that “the party against whom the testimony [is] being offered does not
have the same motive to develop testimony today as we would have had back in
the competency hearing * * *.”
       {¶ 168} The trial court overruled the defense objection, stating:


               And in looking at this * * *, hearsay is permitted even
       though the unavailability of this witness would probably make the
       transcript admissible regardless, so hearsay is not really, and I’m
       not sure that’s the defense’s objection, the competency issue, the
       fact that that was advanced, the testimony was advanced during the
       competency hearing and so has all the rest of the testimony that
       we’ve heard thus far in this proceeding and this phase of it. So I
       don’t see how that would be a problem in terms of objections. I’m
       going to overrule the objection and permit the State to proceed.


       {¶ 169} Thereafter, the state read to the jury the transcript of Dr. Smith’s
former testimony from the competency hearing.            Dr. Smith stated that she



                                          43
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observed Neyland during his 30-day inpatient stay for a competency evaluation at
Twin Valley. Dr. Smith detected no signs of mental illness, but determined that
Neyland had a paranoid personality disorder. Dr. Smith reviewed Dr. Sherman’s
report and stated that she had “more time to observe and interact with Mr.
Neyland and see him in various different settings and see his interactions with
different people.”
       {¶ 170} The former testimony included Dr. Smith’s cross-examination.
Dr. Smith acknowledged that it was not her job to do a competency evaluation of
Neyland, and she did not complete a written report. Dr. Smith stated that she saw
signs that Neyland had a paranoid personality disorder.      She also reviewed
Neyland’s results on the Minnesota Multiphasic Personality Inventory (“MMPI”)
and stated that Neyland answered questions in such a way as to present himself in
a very positive light. She also recognized that Neyland scored extremely low in
the reasoning category of the MacCAT-CA, but characterized such low scores as
resulting from his personality disorder. During redirect examination, Dr. Smith
expressed her opinion that Neyland was competent to stand trial. On recross, Dr.
Smith again stated that Neyland has a personality disorder. But she stated that
Neyland can still make reasoned choices.
                                   b. Analysis
       {¶ 171} Neyland argues that the trial court erred in admitting Dr. Smith’s
former testimony from the competency hearing. Neyland claims that defense
counsel’s inability to cross-examine Dr. Smith denied him the right to
confrontation.
       {¶ 172} The Sixth Amendment to the United States Constitution provides,
“In all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him * * *.”
       {¶ 173} In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), the Supreme Court held that the admission of a testimonial




                                       44
                                January Term, 2014




hearsay statement made by a declarant who does not testify at trial violates the
Sixth Amendment unless (1) the declarant is unavailable and (2) the defendant
had a prior opportunity to cross-examine the declarant.
       {¶ 174} While Crawford did not establish a precise definition of the term
“testimonial,” the Supreme Court did provide some guidance, holding that, at a
minimum, statements are testimonial if the declarant made them at a “preliminary
hearing, before a grand jury, or at a former trial; and [in] police interrogations.”
Id. at 68. Dr. Smith’s former testimony was presented during the competency
hearing that was conducted during an earlier stage of Neyland’s trial. Thus, Dr.
Smith’s testimony constituted a testimonial statement and unless it met the two
requirements of Crawford, its admission violated Neyland’s constitutional right to
confrontation.
                                    (1) Unavailability
       {¶ 175} The trial court determined that Dr. Smith was unavailable to
testify because she was on maternity leave. Neyland asserts that it is questionable
whether Dr. Smith was truly unavailable and whether the state made a good-faith
effort to procure her attendance.
       {¶ 176} Yet defense counsel did not object to Dr. Smith’s former
testimony on the basis that her unavailability had not been established. Given
defense counsel’s failure to dispute unavailability, Neyland has waived all but
plain error as to this point. See State v. Pasqualone, 121 Ohio St.3d 186, 2009-
Ohio-315, 903 N.E.2d 270, ¶ 14 (“Confrontation Clause rights, like other
constitutional rights, can be waived”); State v. Mitchell, 2d Dist. Montgomery
No. 24797, 2012-Ohio-3722, 2012 WL 3542309, ¶ 10 (failure to object on the
basis of unavailability constitutes waiver).
       {¶ 177} An alleged error is plain error only if the error is “ ‘obvious,’ ”
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v.
Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001), and “but for the error,



                                           45
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the outcome of the trial clearly would have been otherwise,” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. Notice of
plain error “is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id. at
paragraph three of the syllabus.
       {¶ 178} We hold that no plain error occurred. Dr. Smith’s testimony was
cumulative.   Dr. Bergman and Dr. Haskins provided similar testimony that
rebutted Dr. Sherman’s testimony about Neyland’s mental condition. Indeed, a
review of Dr. Smith’s testimony shows that she provided little information that
was not also provided by the state’s other two rebuttal witnesses. Thus, no
outcome-determinative plain error occurred.
                  (2) Prior Opportunity for Cross-Examination
       {¶ 179} The trial court permitted Dr. Smith’s former testimony to be
introduced over a defense objection that trial counsel did not have an opportunity
and similar motive to cross-examine Dr. Smith at the competency hearing about
Dr. Sherman’s conclusion that Neyland’s mental illness met the requirements as
an R.C. 2929.04(B)(3) mitigating factor.
       {¶ 180} Crawford requires a prior opportunity for the defendant to cross-
examine the declarant about the testimonial statement sought to be admitted. The
“prior opportunity to cross-examine” is both a “necessary” and “dispositive”
requirement for the admission of testimonial statements. Crawford, 541 U.S. at
55, 124 S.Ct. 1354, 158 L.Ed.2d 177.
       {¶ 181} Neyland argues, in effect, that Crawford incorporates the “similar
motive” requirement set forth in Evid.R. 804(B)(1). Crawford did not state
whether the Confrontation Clause requires a defendant to have had both an
opportunity and a similar motive to cross-examine. See Contreras, 979 So.2d at
909. However, in United States v. Hargrove, 382 Fed.Appx. 765, 778 (10th
Cir.2010), the United States Court of Appeals for the Tenth Circuit stated:




                                        46
                                     January Term, 2014




        Crawford requires only that the defendant have an opportunity to
        cross-examine the adverse witness at the prior proceeding—it does
        not require that the defendant have a similar motive at the prior
        proceeding. The prior motive requirement comes from the Federal
        Rules of Evidence, not the Confrontation Clause. See Fed.R.Evid.
        804(b)(1).2


        {¶ 182} However, Dr. Smith’s former testimony must also meet the
requirements of Evid.R. 804(B)(1) to be admissible. Thus, we must examine
whether trial counsel had the opportunity and a similar motive to cross-examine
Dr. Smith during the competency proceedings. “An identical motive to develop
testimony is not required by Evid.R. 804(B)(1), only a similar motive.” State v.
White, 2d Dist. Montgomery No. 20324, 2005-Ohio-212, 2005 WL 120059, ¶ 26.
        {¶ 183} During mitigation, Dr. Sherman testified that he had conducted a
competency evaluation and determined that Neyland had a mental illness and was
incompetent to stand trial. Dr. Sherman also testified that Neyland’s mental
illness qualified as an R.C. 2929.04(B)(3) mitigating factor. But Dr. Smith’s
former testimony did not purport to rebut Dr. Sherman’s findings regarding the
R.C. 2929.04(B)(3) factor.            Rather, Dr. Smith’s rebuttal was limited to
challenging Dr. Sherman’s findings that Neyland was incompetent and suffered
from a mental illness.
        {¶ 184} During the competency hearing, Dr. Smith had also testified that
she disagreed with Dr. Sherman’s findings. She concluded that Neyland suffered
from a personality disorder and not a mental illness and was competent to stand


2
  Fed.R.Evid. 804(b)(1) provides that former testimony is admissible as an exception to the
hearsay rules if “(B) [it] is now offered against a party who had * * * an opportunity and similar
motive to develop it by direct, cross-, or redirect examination.”




                                               47
                              SUPREME COURT OF OHIO




trial.   At that time, defense counsel fully cross-examined Dr. Smith.             Thus,
defense counsel had “an opportunity and similar motive” to cross-examine Dr.
Smith during the competency hearing as to those matters she testified to during
the mitigation proceedings.
         {¶ 185} However, Neyland claims that defense counsel did not have a
similar motive to cross-examine Dr. Smith about Dr. Sherman’s findings
regarding the R.C. 2929.04(B)(3) mitigating factor. Neyland cites State v. Vrabel,
99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 87 (Moyer, C.J.,
dissenting), in arguing that the standard for an insanity defense and the standard
for the R.C. 2929.04(B)(3) mitigating factor are not synonymous. But in State v.
Cooey, 46 Ohio St.3d 20, 33, 544 N.E.2d 895 (1989), the court held that a
psychological report on sanity is relevant to the existence of the R.C.
2929.04(B)(3) mitigating factor, stating, “The issues involved are similar: whether
a ‘mental disease or defect’ existed and, if so, whether and to what degree it may
have impaired [the defendant’s] cognition and volition.” See State v. Evans, 63
Ohio St.3d 231, 244, 586 N.E.2d 1042 (1992) (“the results of a competency
evaluation would also be relevant to mitigation”).
         {¶ 186} Defense counsel was motivated at mitigation by issues similar to
those at the competency hearing. See United States v. Salerno, 505 U.S. 317, 326,
112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (Blackmun, J., concurring) (“Because
‘similar motive’ does not mean ‘identical motive,’ the similar-motive inquiry
* * * is inherently a factual inquiry, depending in part on the similarity of the
underlying issues and on the context of the [prior] questioning” [emphasis sic]).


               The requirement has become, not a mechanical one of
         identity or even of substantial identity of issues, but rather that the
         issues in the first proceeding, and hence the purpose for which the
         testimony was offered, must have been such as to produce an




                                           48
                              January Term, 2014




       adequate motive for testing on cross-examination the credibility of
       the testimony.


McCormick, Evidence, Section 304, at 495 (7th Ed.2013).
       {¶ 187} Dr. Smith’s testimony that Neyland suffered from a personality
disorder rather than a mental illness would have also been relevant in determining
the existence of the R.C. 2929.03(B)(3) mitigating factor. Defense counsel would
have had a similar motive in challenging this testimony during both the
competency and the mitigation hearings. Thus, we conclude that the trial court
did not abuse its discretion in determining that defense counsel had a prior
opportunity to cross-examine Dr. Smith pursuant to Evid.R. 804(B)(1).
       {¶ 188} Based on the foregoing, proposition XIII is rejected.
2. Prosecutorial misconduct (Proposition of law VI)
       {¶ 189} Neyland argues that the prosecutor committed misconduct during
the penalty-phase opening statement and closing argument. However, except
where noted, Neyland failed to object to the prosecutor’s comments and thus
waived all but plain error. See State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d
1244 (1978), paragraph one of the syllabus.
       {¶ 190} First, Neyland argues that the prosecutor committed misconduct
during the penalty-phase opening statement by stating, “I submit to you that the
heinous crime of purposely killing Doug Smith and Tomm Lazar will outweigh
any mitigating factors that you will hear today beyond a reasonable doubt.”
Neyland argues that the prosecutor’s statement that this was a “heinous crime”
was an improper comment on the nature and circumstances of the offense.
       {¶ 191} The prosecutor’s assertion that this was a “heinous crime” was a
fair and permissible comment upon the nature and circumstances of the offenses.
See State v. Beuke, 38 Ohio St.3d 29, 32, 526 N.E.2d 274 (1988) (prosecutor’s
description of defendant’s course of conduct as “horrible,” “treacherous,” and



                                       49
                            SUPREME COURT OF OHIO




“vicious” and a “Hollywood murder” was permissible comment upon the nature
and circumstances of the offenses).       Moreover, the trial court in this case
instructed the jury at the beginning of the penalty phase, “We are now to the
opening statements of counsel. And, again, I caution you that these are statements
of counsel and are not evidence.” It is presumed that the jury followed the
instructions of the judge. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984
N.E.2d 948, ¶ 205. No plain error occurred.
       {¶ 192} Second, Neyland argues that the prosecutor misstated the law
during the penalty-phase closing argument by stating, “Now, the defendant spoke
to you about the scales of justice remaining balanced. He spoke to you about the
scales remaining balanced. However, that cannot happen in this case because the
defendant purposely—.” At this point, the defense objected. The objection was
overruled, and the prosecutor continued: “Again, when the defendant spoke to
you about the scales of justice, they cannot remain balanced in this case because
the defendant purposely killed two people, Tomm Lazar and Doug Smith.”
       {¶ 193} Neyland argues that the prosecutor misstated the law because, if
the aggravating circumstances and the mitigating factors were of equal weight, a
life sentence must be imposed. See State v. Greer, 39 Ohio St.3d 236, 251, 530
N.E.2d 382 (1988) (“If aggravation and mitigation are in equipoise, the jury must
recommend a sentence of life imprisonment”).
       {¶ 194} The prosecutor was not arguing that the jury could impose a death
sentence if the aggravating circumstances and mitigating factors were balanced.
Rather, the prosecutor was responding to a theme from Neyland’s unsworn
statement. Neyland said, “In order for the scales of justice to remain balanced, all
[of the] Court’s findings, in parenthesis, decisions, must be based on the rule of
law * * *.” Neyland later repeated, “In order for the scales of justice to remain
balanced, it is not the Court’s responsibility to tell the prosecutor or defense how
to present the case, examining witnesses or cross-examine witnesses.” Thus,




                                        50
                                January Term, 2014




Neyland’s claim that the prosecutor’s argument misstated the law by saying that
the death sentence may be imposed when the aggravating circumstances and
mitigating factors are in equipoise is incorrect.
       {¶ 195} We also reject Neyland’s claim that the trial court erred by not
giving a curative instruction, because such an instruction was unnecessary.
Moreover, the trial court later instructed the jury, “If the weight of the aggravating
circumstance and mitigating factors are equal, then you must proceed to consider
the life sentence alternatives.” Again, it is presumed that the jury followed the
court’s instructions. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900
N.E.2d 565, ¶ 145. These instructions eliminated any possible confusion about
equipoise.
       {¶ 196} Neyland also argues that the prosecutor’s argument improperly
commented on the nature and circumstances of the offense. We have held:


               Although * * * prosecutors cannot argue that the nature and
       circumstances of an offense are aggravating circumstances, the
       facts and circumstances of the offense must be examined to
       determine whether they are mitigating. R.C. 2929.04(B). Thus, a
       prosecutor may legitimately refer to the nature and circumstances
       of the offense, both to refute any suggestion that they are
       mitigating and to explain why the specified aggravating
       circumstance[s] outweigh mitigating factors.


State v. Sheppard, 84 Ohio St.3d 230, 238, 703 N.E.2d 286 (1998).
       {¶ 197} The prosecutor’s argument that Neyland purposely killed Lazar
and Smith was proper. It simply described what the defendant did in committing
the course-of-conduct aggravating circumstance.




                                          51
                              SUPREME COURT OF OHIO




       {¶ 198} Finally, Neyland argues that the prosecutor encouraged the jury to
“stack” the aggravating circumstances during rebuttal arguments by stating:


                  The Court will tell you that it is not the quantity of the
       evidence presented to you but in fact the quality of the evidence
       presented.       In weighing the factors, consider that it’s the
       defendant’s choice in how he acted and reacts to certain situations.
       The defendant made the choice to fire eight times at Tomm Lazar
       and then walked immediately to his truck to go up the stairs, shoot
       Doug Smith in the face after yelling at him[,] “Crawl, bitch,
       crawl.”


       {¶ 199} “[T]he jury is obligated to separately consider each count and
separately weigh the aggravating circumstance or circumstances applicable to
each count against any mitigating factors.” State v. Keith, 79 Ohio St.3d 514,
532, 684 N.E.2d 47 (1997). The prosecutor was entitled to argue that Neyland
shot and killed Lazar and Smith, because Neyland had been convicted of the
course-of-conduct aggravating circumstance for each killing. The prosecutor’s
argument did not improperly aggregate the aggravating circumstances. No plain
error occurred.
       {¶ 200} Neyland also argues that the prosecutor’s rebuttal argument that
the “defendant made the choice” to shoot the victims treated the nature and
circumstances of the offense as aggravating circumstances. However, defense
counsel opened the door to the prosecutor’s rebuttal. This argument responded to
defense arguments that “because of a mental disease or defect, Calvin lacked
substantial capacity to conform his conduct to the requirements of the law.” Both
parties have latitude in responding to arguments of opposing counsel. State v.
Loza, 71 Ohio St.3d 61, 78, 641 N.E.2d 1082 (1994). Thus, the prosecutor’s




                                          52
                                January Term, 2014




rebuttal represented fair comment, and no plain error occurred. See State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 182.
       {¶ 201} Neyland also argues that the prosecutor’s argument consisted of
improper victim-impact evidence.          But Neyland fails to explain how the
prosecutor’s argument that summarized Neyland’s actions in shooting Lazar and
Smith was improper. Again, no plain error occurred.
       {¶ 202} Based on the foregoing, we overrule proposition VI.
3. Instructions (Proposition of law IX)
       {¶ 203} Neyland argues that the penalty-phase instructions contain various
errors and that those errors necessitate a new penalty-phase hearing. However,
defense counsel failed to object to these instructions and waived all but plain
error. State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus.
       {¶ 204} First, Neyland claims that the trial court should have instructed
the jury that the state had to prove that the aggravating circumstances outweigh
the mitigating factors beyond a reasonable doubt.          We reject this argument
because the trial court did so instruct the jury, and its instructions on the burden of
proof followed the language in R.C. 2929.03(D)(1) and (D)(2). See State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 192.
       {¶ 205} Second, Neyland argues that the trial court erred in listing the
mitigating factors in the alternative, because this had the effect of limiting the
jury’s consideration to only one of the mitigating factors rather than all of the
mitigating factors or a combination of them.
       {¶ 206} The trial court provided the jury with the following instructions
on considering the mitigating factors:


               Mitigating factors are factors about an individual or an
       offense that weigh in favor of a decision that a life sentence rather
       than a death sentence is appropriate. Mitigating factors are factors



                                          53
                             SUPREME COURT OF OHIO




       that diminish the appropriateness of a death sentence. You must
       consider all of the mitigating factors presented to you. Mitigating
       factors include, but are not limited to, the nature and circumstances
       of the offense, the history, character and background of the
       defendant; and, A, whether at the time of committing the offense
       the defendant, because of a mental disease or defect, lacked
       substantial capacity to appreciate the criminality of his conduct or
       to conform his conduct to the requirements of the law; or, B, the
       defendant’s lack of a significant history of prior criminal
       convictions and delinquency adjudications; or, C, any other factors
       that weigh in favor of a sentence other than death. This means you
       are not limited to the specific mitigating factors that have been
       described to you. You should consider any other mitigating factors
       that weigh in favor of a sentence other than death.


(Emphasis added.)
       {¶ 207} The trial court’s instructions clearly informed the jury that they
must consider all the mitigating factors that were presented to them. Thus, we
reject Neyland’s claim that these instructions limited the jury’s consideration to
only one of the mitigating factors and hold that no plain error occurred.
       {¶ 208} Third, Neyland cites State v. Awkal, 76 Ohio St.3d 324, 667
N.E.2d 960 (1996), in arguing that the trial court failed to instruct the jury that if
they did not find that the R.C. 2929.04(B)(3) statutory factor applied, the jury
should still consider such evidence under the “catch-all” R.C. 2929.04(B)(7)
mitigating factor.
       {¶ 209} In Awkal, the defendant argued that the trial court erred in
instructing the jury that it could consider Awkal’s psychological evidence
mitigating only if Awkal established that he lacked substantial capacity to




                                         54
                                 January Term, 2014




appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law. Id. at 334. In Awkal, the court expressly instructed the
jury that it was not limited to the statutory mitigating factors in conducting the
weighing process. Id. at 335. However, Awkal held that the trial court erred by
failing to instruct the jury that “it could use the psychological evidence for any
purpose other than establishing the statutory mitigating factor in R.C.
2929.04(B)(3).” Id. Awkal stated that the jury should have been instructed that
“even if the jury determined that this mitigating factor was not established, it
could view appellant’s psychological evidence as mitigating under R.C.
2929.04(B)(7).” Id.
       {¶ 210} The trial court did not specifically instruct Neyland’s jury that if
they did not find that Neyland’s psychological or psychiatric evidence qualified
under R.C. 2929.04(B)(3), such evidence should still be considered under R.C.
2929.04(B)(7). However, the trial court emphasized, “You must consider all of
the mitigating factors presented to you. * * * This means you are not limited to
the specific mitigating factors that have been described to you. You should
consider any other mitigating factors that weigh in favor of a sentence other than
death.” Thus, Awkal is inapposite.
       {¶ 211} In State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819
N.E.2d 215, ¶ 172, we rejected a defense claim that the trial court erred in failing
to instruct on all mitigating factors raised by the defense. Skatzes noted that the
court did instruct the jury that it could consider “ ‘any other factors that are
relevant to the issue of whether the offender should be sentenced to death.’ ” Id.
Skatzes held that the trial court did not err in failing to tailor its instructions more
to the evidence.. Id. The instructions in Skatzes and the present case were
similarly worded. Thus, we conclude that the instructions on the consideration of
mitigating evidence were not deficient and hold that no plain error occurred.




                                          55
                               SUPREME COURT OF OHIO




          {¶ 212} Finally, Neyland claims that the trial court improperly allowed the
jury to determine which trial-phase evidence was relevant to the aggravating
circumstance during the penalty phase.
          {¶ 213} During the penalty-phase instructions, the trial court advised the
jurors:


                   Some of the evidence and testimony that you considered in
          the trial phase of this case may not be considered in this sentencing
          phase.    For purposes of this proceeding, only that evidence
          admitted in the trial phase that is relevant to the aggravating
          circumstance and to any of the mitigating factors is to be
          considered by you. You will also consider all of the evidence
          admitted during the sentencing phase together with the defendant’s
          own statement.


          {¶ 214} It is the trial court’s responsibility to determine what trial-phase
evidence is relevant in the penalty phase. See State v. Getsy, 84 Ohio St.3d 180,
201, 702 N.E.2d 866 (1998). Here, the trial court’s instructions on relevancy
limited the jury’s consideration of the trial-phase evidence and testimony to the
aggravating circumstance and the mitigating factors. The trial court’s instructions
also made it clear that the jury would see only those trial-phase exhibits that the
trial court admitted and deemed relevant. Viewing the penalty-phase instructions
as a whole, we conclude that the trial court’s instructions adequately informed the
jury as to the evidence to consider during the penalty phase. See State v. Lang,
129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 251. No plain error
occurred.
          {¶ 215} Based on the foregoing, we overrule proposition IX.




                                           56
                               January Term, 2014




4. Sentencing opinion (Proposition of law IV)
       {¶ 216} Neyland argues that the trial court’s sentencing opinion is flawed
in reaching the conclusion that the aggravating circumstance outweighed the
mitigating factors beyond a reasonable doubt.
       {¶ 217} R.C. 2929.03(F) sets forth the findings a trial court must make
when imposing a death sentence. The statute requires that the court shall state, in
a separate opinion,


       its specific findings as to the existence of any of the mitigating
       factors set forth in division (B) of section 2929.04 of the Revised
       Code, the existence of any other mitigating factors, the aggravating
       circumstances the offender was found guilty of committing, and
       the reasons why the aggravating circumstances the offender was
       found guilty of committing were sufficient to outweigh the
       mitigating factors.


       {¶ 218} First, Neyland argues that the trial court failed to give decisive
weight to testimony that he suffers from severe mental problems in concluding
that the aggravating circumstance outweighed the mitigating factors. However,
the “assessment and weight to be given mitigating evidence are matters for the
trial court’s determination.” State v. Lott, 51 Ohio St.3d 160, 171, 555 N.E.2d
293 (1990). Moreover, the fact that mitigation evidence is admissible “does not
automatically mean that it must be given any weight.” State v. Steffen, 31 Ohio
St.3d 111, 509 N.E.2d 383 (1987), paragraph two of the syllabus.
       {¶ 219} The trial court reviewed the testimony of Dr. Sherman and the
state’s three experts about Neyland’s mental problems. The trial court concluded:




                                        57
                             SUPREME COURT OF OHIO




               Considering all of the expert testimonies, the Court finds,
       as the three State’s experts have opined, that defendant has a
       personality disorder which does not rise to the level of a “mental
       disease or defect” that prevented defendant from appreciating the
       criminality of his conduct. Defendant’s personality disorder falls
       under the “catch-all” statutory provision and the Court accords it
       modest weight.


Here, the trial court considered the evidence presented about Neyland’s mental
problems before giving it “modest weight.” The trial court could assign any or no
weight to such evidence. See State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-
2221, 767 N.E.2d 678, ¶ 103. Thus, no error occurred.
       {¶ 220} Second, Neyland argues that the trial court failed to consider
whether the nature and circumstances of the offense were mitigating. Neyland
claims that the testimony established that the killings of Smith and Lazar reflected
his paranoia, psychotic condition, and bizarre behavior, which were entitled to
some weight in mitigation.        R.C. 2929.04(B) provides that the court, in
determining whether death is an appropriate penalty, “shall consider, and weigh
against the aggravating circumstances proved beyond a reasonable doubt, the
nature and circumstances of the offense.” Thus, the trial court was required to
review these factors.    See Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, at ¶ 301.
       {¶ 221} Nothing in the sentencing opinion shows that the trial court
considered whether the nature and circumstances of the offense might be
mitigating.   But “[w]hile a sentencing court must consider all evidence of
mitigation, it need not discuss each factor individually.” State v. Phillips, 74 Ohio
St.3d 72, 102, 656 N.E.2d 643 (1995), citing Parker v. Dugger, 498 U.S. 308,
314-315, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). We hold that the trial court’s




                                         58
                               January Term, 2014




failure to discuss whether the nature and circumstances of the offense might be
mitigating was not erroneous.      In any event, our independent review of the
sentence will cure any flaws in the trial court’s opinion. See Lang at ¶ 298.
       {¶ 222} As a final matter, the state concedes that the trial court failed to
provide specific reasons for finding that the aggravating circumstance outweighed
the mitigating factors. But the state argues that such errors can be cured during
our independent review of the sentence.
       {¶ 223} The trial court set forth the R.C. 2929.04(A)(5) aggravating
circumstance that Neyland was found guilty of committing.           The court also
summarized the evidence that established Neyland’s guilt of the offenses charged.
The court then listed the mitigation evidence that it found Neyland was able to
establish: “lack of significant criminal history, personality disorder, relatively
successful and long employment history, and good behavior while in detention
awaiting trial.” The trial court then concluded:


       They [the mitigating factors] pale in comparison to the aggravating
       circumstance in this case and are only entitled to modest weight.
       The purposeful killing [of] two or more persons is a grave
       aggravating circumstance of a very serious weight.


       {¶ 224} The trial court’s sentencing opinion did not clearly explain why
the aggravating circumstance in each count outweighed the mitigating factors.
Yet the trial court’s reasoning implicitly concluded that the aggravating
circumstance as to each count, which was proved beyond a reasonable doubt,
clearly outweighed the mitigating evidence that was presented. Our independent
assessment of the evidence will purge any additional deficiency in the trial court’s
reasoning. See State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d
1042, ¶ 96-97.



                                          59
                             SUPREME COURT OF OHIO




       {¶ 225} Based on the foregoing, we overrule proposition IV.
                        C. Ineffective assistance of counsel
       {¶ 226} In propositions of law V and XIX, Neyland raises various claims
that his counsel provided ineffective assistance during both phases of the trial. As
previously noted, reversal of a conviction or sentence based on ineffective
assistance requires finding both deficient performance and prejudice. Strickland,
466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
1. Failure to rehabilitate prospective jurors
       {¶ 227} Neyland asserts that trial counsel were ineffective by failing to
ask follow-up questions of prospective jurors Nos. 81, 87, and 91, who indicated
that they could not impose the death penalty.
       {¶ 228} We have consistently declined to “second-guess trial strategy
decisions” or impose “hindsight views about how current counsel might have voir
dired the jury differently.” State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d
932 (1998). “ ‘Few decisions at trial are as subjective or prone to individual
attorney strategy as juror voir dire, where decisions are often made on the basis of
intangible factors.’ ” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873
N.E.2d 828, ¶ 64, quoting Miller v. Francis, 269 F.3d 609, 620 (6th Cir.2001).
Moreover, “counsel is in the best position to determine whether any potential
juror should be questioned and to what extent.” State v. Murphy, 91 Ohio St.3d
516, 539, 747 N.E.2d 765 (2001).
       {¶ 229} Juror No. 81 expressed strong views against the death penalty.
On the jury questionnaire, juror No. 81 stated that she would be unable to follow
instructions and “to consider fairly the imposition of a sentence of death.” Juror
No. 87 was opposed to the death penalty for religious reasons and believed that
there were no circumstances in which the death penalty would be appropriate.
We conclude that trial counsel were not deficient by failing to ask follow-up




                                         60
                                 January Term, 2014




questions of these jurors after they expressed intractable views opposing the death
penalty. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 200.
       {¶ 230} Juror No. 91 stated that he was against the death penalty “in most
cases.” Juror No. 91 did not rule out voting for the death penalty in all situations
and said, “I can follow instructions.” But juror No. 91 stated, “I would probably
vote against [the death penalty],” when asked whether his beliefs would
substantially impair his ability to follow the court’s instructions.
       {¶ 231} Trial counsel’s decision not to question juror No. 91 was an
exercise in discretionary judgment. See State v. Goodwin, 84 Ohio St.3d 331,
335, 703 N.E.2d 1251 (1999). Even assuming trial counsel were deficient, any
“claim of prejudice is necessarily speculative, because we cannot know whether
[this juror] could have been rehabilitated.” (Emphasis sic.) State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 213.                  Thus, this
ineffectiveness claim lacks merit.
2. Failure to object to excusal for cause
       {¶ 232} Neyland argues that trial counsel were ineffective by failing to
object to the trial court’s excusal for cause of prospective juror No. 24, because
that juror stated that she could vote to impose the death penalty even though she
expressed reluctance to provide a blanket “yes” to cover all contingencies. But
the record shows that trial counsel did object to the excusal of juror No. 24. We
reject this ineffectiveness claim.
3. Failure to prepare for mitigation
       {¶ 233} Neyland argues that his counsel were ineffective by failing to
independently investigate his background or conduct any mitigation investigation.
Neyland asserts that his counsel’s only attempt at mitigation was to “recycle Dr.
Sherman’s testimony from the competency hearing” and request a presentence
investigation (“PSI”).




                                            61
                             SUPREME COURT OF OHIO




       {¶ 234} An attorney’s failure to reasonably investigate the defendant’s
background and present mitigating evidence to the jury at sentencing can
constitute ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521-
522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Defense counsel has a duty to
investigate the circumstances of his client’s case and explore all matters relevant
to the merits of the case and the penalty, including the defendant’s background,
education, employment record, mental and emotional stability and family
relationships.” Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). However,
Neyland has the burden of demonstrating that his counsel rendered ineffective
assistance by failing to conduct an adequate investigation. State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 104, citing Strickland, 466
U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
                                   a. Background
       {¶ 235} Beginning on December 11, 2007 (more than ten months before
trial), defense counsel informed the trial court that they wanted to “start preparing
almost immediately” for mitigation. Counsel hired Kelly Heiby, a mitigation
expert, Dr. Wayne J. Graves, a psychologist, and Beth Ann Crum, a defense
investigator, to assist counsel in preparing for mitigation.
       {¶ 236} During a pretrial hearing on July 28, 2008, defense counsel
informed the trial court that Neyland “refused to cooperate in any preparation” for
mitigation. Neyland refused to meet with either Dr. Graves or Heiby. However,
defense counsel said that they would continue trying to convince Neyland to
cooperate with them. During a pretrial hearing on August 5, 2008, counsel
notified the trial court that Neyland still refused to cooperate in preparing for
mitigation.
       {¶ 237} During a pretrial hearing on August 25, 2008, defense counsel
told the court that Neyland refused to sign any releases to allow the defense to
obtain any of his education, employment, military, medical, or court records.




                                          62
                                 January Term, 2014




Counsel asked the trial court to order that these records be released to them. The
trial court granted the defense request except for Neyland’s juvenile court records.
          {¶ 238} On September 19, 2008, defense counsel filed a motion requesting
the court to reconsider its finding that Neyland was competent. The defense
motion was based, in part, on Neyland’s refusal to cooperate with Dr. Graves and
Heiby in preparing for mitigation. The motion included a letter from Heiby,
stating that Neyland “gave me no viable information to assist me in doing a
proper mitigation investigation.” The motion also included Dr. Graves’s affidavit
stating that Neyland “expressed an absolute refusal to cooperate in any type of
preparation of mitigation for trial” and “refused to cooperate in any psychological
testing.”
          {¶ 239} Following the state’s presentation of trial-phase evidence, defense
counsel stated that Neyland continued to refuse to cooperate in preparing for
mitigation. Consequently, his counsel requested a PSI in the event that the jury
found Neyland guilty of any of the capital specifications.         Defense counsel
expressed uncertainty about whether Neyland would cooperate in completing the
PSI. But Adrian Cimerman, lead defense counsel, told the court that he and
assistant defense counsel “are in possession of other information that we could
pass on to the probation department in terms of employment history, family
members who might be contacted for family background, [and] school records
* * *.”
          {¶ 240} During mitigation, the defense presented Dr. Sherman’s
testimony, Neyland made two unsworn statements, and the PSI was presented for
the jury’s consideration.
                                      b. Analysis
          {¶ 241} Nothing in the record shows that defense counsel did not conduct
an adequate investigation.         Counsel obtained a mitigation specialist, a
psychologist, and a defense investigator. Billing records show that Heiby spent



                                          63
                               SUPREME COURT OF OHIO




numerous hours conducting her investigation between July 17 and October 22,
2008. The record does not show the full extent of the defense investigation into
mitigation, but the court “cannot infer a defense failure to investigate from a silent
record.” Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244.
                           (1) Neyland’s refusal to cooperate
           {¶ 242} Neyland’s refusal to cooperate with defense experts in preparing
for mitigation thwarted defense efforts to obtain information that could be used on
his behalf during mitigation. The state argues that Neyland’s ineffectiveness
claim should be rejected based on the invited-error doctrine, because his refusal to
cooperate with counsel in preparing mitigation caused the error that he now
asserts.
           {¶ 243} Under the invited-error doctrine, a party is not entitled to take
advantage of an error that he himself invited or induced the trial court to make.
State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d
517, ¶ 27. Neyland’s ineffectiveness claim is not trying to take advantage of an
error that he induced the trial court to make. Thus, the invited-error doctrine does
not apply.
           {¶ 244} Nonetheless, Neyland’s lack of cooperation in preparing for
mitigation is an important factor in reviewing whether counsel was deficient. To
determine whether counsel’s performance was deficient, the court must measure it
against an objective standard based on accepted professional norms.               See
Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).
           {¶ 245} As a starting point, neither Wiggins nor Strickland addresses a
situation where a defendant interferes with counsel’s efforts to present mitigating
evidence to a sentencing court. In Rompilla, the defendant refused to assist
counsel in the development of a mitigation case, id. at 381, but there is no
indication that the defendant ever informed the court that he did not want
mitigating evidence presented.        The Supreme Court held that counsel was




                                          64
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responsible for conducting a further investigation even though the defendant
suggested that no mitigation was available. Id. at 381-389.
       {¶ 246} In Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167
L.Ed.2d 836 (2007), the defendant actively obstructed counsel’s investigation and
outright refused to allow counsel to present any mitigating evidence.          For
example, the defendant explicitly instructed his mother and ex-wife not to testify.
Id. at 469. Counsel tried to make a proffer of the witnesses’ testimony, but the
defendant repeatedly interrupted his presentation to the court to reiterate that he
did not want mitigating evidence presented. Id. at 470. The Supreme Court held
that the defendant’s refusal to cooperate in the penalty phase rendered counsel’s
limited investigation and presentation of mitigating evidence reasonable under the
circumstances. Id. at 475-477.
       {¶ 247} In Owens v. Guida, 549 F.3d 399 (6th Cir.2008), the United States
Court of Appeals for the Sixth Circuit considered whether counsel’s failure to
investigate a capital defendant’s background was deficient when the defendant
would not cooperate. In Owens, the defendant would not cooperate with mental-
health examiners, would not allow counsel to communicate with her family, and
contrary to counsel’s advice, would not take the stand herself. Id. at 406-407.
The court held that any failure to develop mitigating evidence was the result of
the defendant’s actions and not deficient performance by her counsel. Id. at 412.
The court stated, “A defendant cannot be permitted to manufacture a winning
[ineffective-assistance-of-counsel] claim by sabotaging her own defense, or else
every defendant clever enough to thwart her own attorneys would be able to
overturn her sentence on appeal.” Id.
       {¶ 248} Other courts have held that a defendant’s lack of cooperation does
not eliminate counsel’s duty to investigate. See Hamilton v. Ayers, 583 F.3d
1100, 1118 (9th Cir.2009); Sonnier v. Quarterman, 476 F.3d 349, 358 (5th
Cir.2007). Moreover, the ABA Guidelines for the Appointment and Performance



                                         65
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of Defense Counsel in Death Penalty Cases (2003) provide, “The investigation
regarding penalty should be conducted regardless of any statement by the client
that evidence bearing upon penalty is not to be collected or presented.” Id.,
Guideline 10.7(A)(2), at 76. See Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13,
175 L.Ed.2d 255 (2009) (ABA standards useful as “guides” to what
reasonableness entails to the extent that they describe professional norms that
prevailed when the representation took place).
       {¶ 249} Neyland’s refusal to cooperate appears to fall somewhere between
Rompilla and Landrigan.         Neyland refused to cooperate with the mitigation
specialist and the defense psychologist in preparing mitigation. But Neyland
never told the trial court that he did not want defense counsel to present
mitigation.      Neyland made two unsworn statements during the mitigation
proceedings, which indicates that he did want to present some mitigation. We
hold that Neyland’s refusal to cooperate with the mitigation specialist and the
defense psychologist did not excuse counsel from conducting a mitigation
investigation.
                        (2) Mitigating information obtained
       {¶ 250} Despite Neyland’s lack of cooperation, the record shows that the
defense was able to assemble and collect mitigating information. Trial counsel
obtained a court order for Neyland’s records after he refused to sign a release.
Trial counsel also had ample information about Neyland’s mental condition from
the competency proceedings that could be used for mitigation purposes after
Neyland refused to cooperate with Dr. Graves and would not undergo any further
psychological testing. Indeed, Dr. Sherman testified during mitigation. The PSI
also shows that a wealth of information was obtained about Neyland’s family
history, educational background, employment history, military service, and lack
of a serious criminal record.




                                         66
                                January Term, 2014




       {¶ 251} Finally, Neyland’s generalized claim fails to specify any
mitigating information that his counsel failed to obtain. Thus, we hold that
Neyland has failed to establish that defense counsel performed inadequately in
preparing for mitigation. See Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, at ¶ 71; State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920
N.E.2d 104, ¶ 226.
4. Other ineffective-assistance allegations
       {¶ 252} Neyland raises other instances of alleged ineffective assistance of
counsel. As discussed in other propositions of law, trial counsel did object to the
trial court’s order that Neyland wear a leg restraint, and counsel’s failure to object
to the second leg restraint was not prejudicial (proposition of law III). Counsel
were also not ineffective by failing to file motions to suppress his statements to
police and the evidence obtained from a search of his motel room (proposition of
law VII).
       {¶ 253} As to other alleged instances of ineffective assistance of counsel,
even if we assume that counsel were deficient, no prejudice resulted. Neyland was
not prejudiced by counsel’s failure to object to the prosecutor’s opening statement
and closing argument during the penalty phase (proposition of law VI), and he
was also not prejudiced by counsel’s failure to object to penalty-phase
instructions (proposition of law IX).      Neyland also objects to other alleged
instances of substandard lawyering but fails to provide any specific examples in
support of this allegation. We also reject this claim.
       {¶ 254} Based on the foregoing, we overrule proposition V.
5. Failure to preserve the record
       {¶ 255} In proposition of law XIX, Neyland argues that his counsel were
ineffective by failing to make timely objections and preserve meritorious issues
for appellate review.    Yet Neyland does not cite any record references, any
objections that counsel failed to make, or any meritorious issues that counsel



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failed to preserve. Thus, Neyland has failed to establish deficient performance or
prejudice. See Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at
¶ 197. We reject proposition XIX.
                                D. Remaining issues
1. Cumulative error (Proposition of law XVIII)
          {¶ 256} Neyland argues that cumulative errors committed during the trial
deprived him of a fair trial and require a reversal of his convictions and death
sentence.
          {¶ 257} State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus, recognized the doctrine of cumulative error. Under
this doctrine, a conviction will be reversed when the cumulative effect of errors in
a trial deprives a defendant of a fair trial, even though each of the numerous errors
does not individually constitute cause for reversal. Id. at 196-197. See also
Powell at ¶ 222-224; State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623
(1995).
          {¶ 258} The doctrine of cumulative error is not applicable in the present
case. Neyland received a fair trial. Moreover, none of the errors committed in
this case, when considered either individually or cumulatively, resulted in
prejudicial error.     As previously discussed in other propositions of law,
overwhelming evidence was introduced that established Neyland’s guilt.
Proposition XVIII is overruled.
2. Proportionality (Proposition of law X)
          {¶ 259} Neyland    argues   that    Ohio’s   proportionality   review    is
unconstitutional. He contends that a meaningful proportionality review must
include cases resulting in life imprisonment after a capital-sentencing hearing, as
well as those resulting in the imposition of the death penalty. However, we have
consistently held that the proportionality review required by R.C. 2929.05(A) is
satisfied by a review of cases in which the death penalty has been imposed. See




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State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 51; State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23; Steffen, 31
Ohio St.3d 111, 509 N.E.2d 383, at paragraph one of the syllabus. Proposition X
is overruled.
3. Constitutionality of death penalty (Proposition of law XVII)
       {¶ 260} Neyland challenges the constitutionality of Ohio’s death-penalty
statutes. These claims can be rejected. See State v. Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, ¶ 215-216; State v. Carter, 89 Ohio St.3d
593, 607, 734 N.E.2d 345 (2000); State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d
264 (1984), paragraph one of the syllabus.
       {¶ 261} In addition, Neyland claims that Ohio’s death-penalty statutes
violate international law and treaties to which the United States is a party. This
argument also lacks merit. See State v. Issa, 93 Ohio St.3d 49, 69, 752 N.E.2d
904 (2001); Phillips, 74 Ohio St.3d at 103-104, 656 N.E.2d 643.
4. Lethal injection (Proposition of law VIII)
       {¶ 262} Neyland challenges the constitutionality of lethal injection.
However, this court has previously rejected similar claims. See Adams, 103 Ohio
St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at ¶ 131; Carter at 608.
5. Appropriateness of death sentence (Proposition XVI)
       {¶ 263} Neyland argues that the death penalty is not appropriate because
of evidence of his mental condition and/or mental illness. We shall consider these
arguments during our independent sentence evaluation.
                     IV. Independent Sentence Evaluation
       {¶ 264} Having considered Neyland’s propositions of law, this court must
now independently review Neyland’s death sentence for appropriateness and
proportionality   and   independently     determine   whether     the   aggravating
circumstance of which Neyland was convicted outweighs the mitigating factors
pursuant to R.C. 2929.05(A).



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                          A. Aggravating circumstance
       {¶ 265} Neyland was convicted of murdering Thomas Lazar and Douglas
Smith as part of a course of conduct involving the purposeful killing of two or
more persons in violation of R.C. 2929.04(A)(5). The evidence at trial supports
the jury’s finding of this aggravating circumstance.
       {¶ 266} The evidence established that Neyland arrived at Liberty
Transportation to meet with Lazar and Smith about the termination of his
employment. After arriving at Liberty, Neyland shot and killed Lazar in the
parking-lot area and then went to Smith’s office and killed him. Neyland fled to a
Michigan motel, where he was later captured. A handgun found in Neyland’s
tractor was later identified as the murder weapon.
       {¶ 267} Here, the killing of both victims was directly linked in time and
location. See State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d
1239, ¶ 52 (time, location, and murder weapon can establish the factual link
necessary to prove a course of conduct).
       {¶ 268} The evidence also establishes that Neyland’s acts were
purposeful. Neyland shot Lazar four times in the back and shot Smith in the head.
Moreover, Neyland told another truck driver about a week before the murders, “If
they mess with me, I’ll just shoot them.” The 9-1-1 tape also captured Neyland
telling Smith to “crawl bitch” before killing him. Finally, the coroner’s testimony
established that three of the gunshot wounds on Lazar’s back were in close
proximity and displayed a triangular pattern. Following Neyland’s arrest, pieces
of paper that Neyland had left were found in his storage unit. One piece displayed
three pennies arranged in a close triangular pattern that matched the gunshot
pattern on Lazar’s back. The paper contained the words, “OOOO, I’m so scared.
Three Round Shot Group.”        There was also the statement, “You think I’m
playing[.] You’re going to come up missing!!!”




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                              B. Mitigating evidence
       {¶ 269} Against this aggravating circumstance, this court must weigh the
mitigating factors contained in R.C. 2929.04(B). Neyland called Dr. Thomas
Sherman as a witness. Neyland also made an unsworn statement, a supplemental
unsworn statement, and a statement in allocution.           In addition, Neyland
introduced a PSI and the record of his behavior in jail.
       {¶ 270} Dr. Sherman evaluated Neyland during the competency
proceedings. Dr. Sherman testified that Neyland was paranoid. Dr. Sherman
stated that it was very obvious in talking with Neyland that “the normal process of
reason and logic weren’t there.” He stated that “it was crystal clear to me that he
had a mental illness, and I thought he was incompetent to stand trial.” Dr.
Sherman made two diagnoses: “One is a delusional disorder, a persecutory type.
And the second is schizophrenia, a more severe form of that illness.”
       {¶ 271} Dr. Sherman provided examples of Neyland’s behavior that
supported his findings. First, Neyland moved out of his house and into his truck
because he believed that people were breaking into his house to listen to his
answering machine.       Second, Neyland mentioned that prophylactics were
mysteriously showing up all the time in his laundry. Finally, Neyland placed
notes in his storage unit saying, “I’m so scared” and left other comments relating
to the shooting.
       {¶ 272} Dr. Sherman testified that Neyland met the criteria for the R.C.
2929.03(B)(3) mitigating factor. Dr. Sherman stated:


               [Neyland] was laboring under severe mental disease,
       mental illness. As I mentioned earlier, there is no way he could
       formulate conclusions in a normal way. As I indicated, all of this
       indicates to me he had a severe mental illness of a paranoid type,
       that he suspected virtually everybody of something, that probably



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       would have not taken very much to tip him off. And I have no idea
       what exactly it was about his relationship with these two people,
       but the intensity of the reaction was compatible with all of the
       things I mentioned earlier.     You don’t do something like this
       because you’ve got a grudge against two people.


       {¶ 273} The PSI included a variety of information about Neyland’s
background. Neyland was 43 years old at the time of the offenses. He has never
been married and has no children. Neyland was born in Toledo and was one of
ten siblings. Neyland’s father was a minister and “worked in the pathology field,”
and his mother was a registered nurse. Neyland’s parents divorced when he was
14 years old. Neyland and his siblings remained in their mother’s custody after
the divorce.
       {¶ 274} Neyland reported that his mother was strict, and Neyland’s family
life was heavily influenced by his mother’s involvement in church. Neyland later
went to live with an uncle and then lived with his father in Michigan. Neyland
denied any familial history of mental illness and stated that neither of his parents
had a chemical-dependency problem. Neyland’s father died in 1997, and his
mother died in 2006.
       {¶ 275} Neyland attended Toledo schools for most of his education. He
graduated from Scott High School in June 1982. He ranked 182nd out of a class
of 246 students. His grade point average was 1.23 on a 4.00 scale.
       {¶ 276} Neyland served in the Army from March 1987 to May 1988.
Military records showed that he was charged with desertion and later received a
discharge “for the good of the service.”
       {¶ 277} Neyland reported that he graduated from American Truck Driving
School in 1988. Neyland has worked as a truck driver for numerous trucking
companies. He was hired as a truck driver for Liberty Transportation in July




                                           72
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2006. As a driver for Liberty, Neyland committed traffic violations and violated
company policy on several occasions.
       {¶ 278} Neyland does not have a significant criminal record. He was
convicted of bad-check offenses in 1987. Otherwise, Neyland’s record shows a
history of traffic violations for speeding and other minor driving offenses.
Neyland denied using any illicit substances, but he has occasionally used alcohol.
       {¶ 279} A report from the Wood County Sheriff’s Office was introduced
and provided a daily account of Neyland’s behavior while he was in jail awaiting
trial. The report shows that Neyland followed procedures and behaved himself
except for a couple of minor incidents.
       {¶ 280} In his unsworn statement, Neyland said that while he was jailed at
the Wood County Justice Center, other inmates called him “Osama Bin Ladin.”
Neyland is not a Muslim. He is a Christian, and his father pastored two churches.
       {¶ 281} Neyland is the third oldest of ten children. He was born and
raised in Toledo. Neyland’s father prepared tissue samples for examination by
doctors and surgeons. His mother was a registered nurse. Neyland has never had
any children. But he has had “two paternity tests” against him. A case from
Kansas was dismissed in Ohio. Neyland wanted that placed into the record so
that there would be no questions about any nonpayment of child support.
       {¶ 282} Neyland has worked as “a driver for 20 years off and on.” Before
that, Neyland was in the military and worked with the military police.
       {¶ 283} Neyland also stated, “I’m going to read into the record a statement
* * * because I really do believe that the case was not presented in its full
totality.” Neyland said:


               In order for the scales of justice to remain balanced, all [of
       the] Court’s findings, in parenthesis, decisions, must be based on
       the rule of law, not on motions, underlined, all cases are subject to



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       judicial review. This is a murder trial. All evidence must be
       presented, the evidence that in all probability will convict the
       defendant and evidence that could possibly exonerate the
       defendant. Neither the prosecution nor the defense presented the
       evidence in its totality during these court proceedings.


       {¶ 284} Neyland then told the jury about court cases that he had been
involved in so that “you would have some idea of what type of person I am.” The
first case was an action involving Ohio Job and Family Services, in which he was
“awarded $7,500 for the year of unemployment that I was previously denied.”
The second case occurred in Indiana, and he was awarded reimbursement of a
week’s wages that had been withheld from him.
       {¶ 285} Neyland presented a supplemental unsworn statement after Dr.
Sherman testified. Neyland said that he wanted to question Dr. Sherman but the
judge would not allow it. Neyland wanted Dr. Sherman to observe him while he
made a statement to the court and then tell the court what he witnessed. Neyland
disputed Dr. Sherman’s findings:


              First of all, a psychotic person does not have a train of
       thought. * * *
           I made $175,000 in 12 months. I have tax forms to prove it.
       From July the 1st of 2006 to January or December 31st of 2006, I
       made $85,558. A psychotic person doesn’t have that memory,
       wouldn’t be able to remember the numbers.


       {¶ 286} Neyland then provided examples of his work as a truck driver and
mentioned the time and effort that were required to perform those jobs. He stated,
“I’m trying to make a point that a psychotic person would not be able to




                                        74
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accomplish that nor would they be able to remember it nor would they be able to
plan that.” Neyland also said: “I was a trainer for Gunther’s, which means I train
other drivers. Trucking companies would not allow drivers to train other drivers
if they’re psychotic. It is a requirement by DOT that drivers never have at any
time * * * mental illness. So from 1999 to 2008 I was a driver.”
       {¶ 287} Neyland also disputed the sufficiency of the evidence of his guilt.
He stated that Smith did not mention Neyland’s name in making the 9-1-1 call.
Neyland also said that his clothes did not have any blood spatters on them and
were not tested for gunpowder residue.         He also stated, “The jury was not
presented with Douglas Smith’s hands, with what seemed to be blond hair
wrapped around his fingers. * * * I don’t have blond hair. * * * I have an afro, I
have curly hair.”
       {¶ 288} The state called Dr. Bergman, Dr. Kristen Haskins, and Dr.
Delaney Smith as rebuttal witnesses. These witnesses had also evaluated Neyland
during the competency proceedings.
       {¶ 289} Dr. Bergman, a psychologist, testified that Neyland was not
suffering from a mental illness but had a severe personality disorder.        Dr.
Bergman stated that she could not determine whether Neyland lacked substantial
capacity to appreciate the criminality of his conduct because Neyland would not
talk to her about his criminal conduct.
       {¶ 290} Dr. Haskins, a psychologist, testified that Neyland had a “mixed
personality disorder.” She stated, “[H]e’s capable of choosing his behaviors and
actions and of making decisions. And there were no indications that those were
tainted by any kind of severe mental illness.”
       {¶ 291} Dr. Smith, a psychiatrist, detected no signs of mental illness, but
determined that Neyland had a paranoid personality disorder. Dr. Smith had
reviewed Dr. Sherman’s report and stated that she had “more time to observe and




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interact with Mr. Neyland and see him in various different settings and see his
interactions with different people.”
       {¶ 292} Before sentencing, Neyland made a statement in allocution.
Neyland discussed his background. He had a paper route with the Toledo Blade
and also worked as a crew chief for McDonald’s when he was growing up.
Neyland stated that he did “not [have] a lot friends, not a lot of girlfriends, no
children.”
       {¶ 293} Neyland said, “All the males in my family from the Civil War to
World War II, [and] Korea” served in the military. Neyland is a veteran and
entered the military two weeks after graduating from high school. Neyland said,
“All of the jobs that I’ve ever had, and that includes military jobs, I was given
responsibility.” He continued, “I’ve always operated on my own, and I’ve made
my own decisions. And this is how my dad raised me.”
       {¶ 294} Neyland discussed the offenses. He stated that he did not know
Doug Smith personally and had never met Lazar. Neyland also said:


               I sat here and I watched the jurors during the whole
       proceedings. And I am not sure from observing them that they are
       aware of the total idea or the total realm, if you put everything
       together, what actually happened.
               I cannot say that I know what happened August the 8th.
       But I can tell you from facts that Douglas Smith and Tomm Lazar
       are not here to take responsibility for what they did prior to August
       the 8th and what led to August 8th.
             ***
               Just watching the jury, they did not listen to the whole case.
       What did they come up with? Death. They cannot place me at
       Liberty Transportation at 7171 Reuthinger Road.             The law




                                         76
                                January Term, 2014




       enforcement in the State of Ohio did not see me. They did not see
       my tractor. Law enforcement in Michigan at the time of the phone
       call at 2:58 p.m., from 3 p.m. to 3:30 p.m., Chief Hines of Erie
       Township Police Department viewed or saw the truck with Officer
       Konopka. The jury did not hear that. They did not want to hear
       that. I don’t have a time machine. I could not possibly be in two
       places at once.
               ***
               * * * I don’t live my life in fear and I fear no man. But I
       will tell you what my dad told me. “Vengeance is mine sayeth the
       Lord, and that is the double-edged sword.” That’s all I have to say,
       Your Honor.


                         C. Sentence evaluation
       {¶ 295} Nothing in the nature and circumstances of the offenses appears to
be mitigating. Neyland shot and killed two officials at Liberty Transportation
who were about to fire him. Neyland left notes in his storage unit before the
shootings occurred that indicated his intent to carry out these offenses. These
offenses establish horrific crimes that lack any mitigating features.
       {¶ 296} Neyland’s character offers little in mitigation. His history and
background also provide little mitigating value. Neyland grew up in a large
family with supportive parents. He was a high school graduate and served in the
Army. Neyland was also gainfully employed as a truck driver for many years and
supported himself with a good income.
       {¶ 297} The statutory mitigating factors under R.C. 2929.04(B) include
(B)(1) (victim inducement), (B)(2) (duress, coercion, or strong provocation),
(B)(3) (mental disease or defect), (B)(4) (youth of the offender—Neyland was 43
at the time of the offense), (B)(5) (lack of a significant criminal record), (B)(6)



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(not the principal offender), and (B)(7) (any other relevant factors). The factors
under (B)(1), (B)(2), (B)(4), and (B)(6) do not appear to apply.
          {¶ 298} Dr. Sherman testified that the R.C. 2929.04(B)(3) mitigating
factor applies. The (B)(3) factor applies when “at the time of committing the
offense, the offender, because of a mental disease or defect, lacked substantial
capacity to appreciate the criminality of the offender’s conduct or to conform the
offender’s conduct to the requirements of the law.” But two psychologists and
another psychiatrist testified that Neyland suffered from a personality disorder
rather than a mental illness. A behavior or personality disorder does not qualify
as a mental defect or disease. See State v. Fox, 69 Ohio St.3d 183, 192, 631
N.E.2d 124 (1994); State v. Richey, 64 Ohio St.3d 353, 372, 595 N.E.2d 915
(1992).
          {¶ 299} In weighing their conflicting testimony about the applicability of
the (B)(3) factor, we note that Dr. Sherman met with Neyland for approximately
one hour in conducting his examination. In contrast, Dr. Haskins and Dr. Smith
evaluated Neyland during a lengthy in-patient observation period. We conclude
that the (B)(3) factor has not been established.
          {¶ 300} However, we give significant weight to Neyland’s personality
disorders and other mental problems under the catch-all provision, R.C.
2929.04(B)(7).      Undoubtedly, Neyland is paranoid.       On several occasions,
Neyland made bizarre comments that made little sense and exhibited other odd
behavior during trial. Yet Dr. Haskins emphasized that Neyland was “capable of
choosing his behaviors and actions and of making decisions. And there were no
indications that those were tainted by any kind of severe mental illness.”
          {¶ 301} We also give weight to the R.C. 2929.04(B)(5) mitigating factor,
because Neyland does not have a significant criminal record.
          {¶ 302} In addition, we give weight to Neyland’s employment history and
his military service as a (B)(7) factor.




                                           78
                                January Term, 2014




       {¶ 303} Neyland claims that his good behavior in jail is a mitigating
factor. Good behavior in jail is relevant to lack of future dangerousness: “ ‘[T]he
lack of a prison disciplinary record reveals nothing about a defendant’s character
except that the defendant can exist in the highly structured environment of a
prison without endangering others.’ ” Mundt, 115 Ohio St.3d 22, 2007-Ohio-
4836, 873 N.E.2d 828, at ¶ 210, quoting Franklin v. Lynaugh, 487 U.S. 164, 186,
108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring). Thus, we
give weight to Neyland’s good behavior while in pretrial confinement.
       {¶ 304} Based upon our independent weighing of the evidence, we
conclude that the aggravating circumstance as to each count outweighs all the
mitigating factors beyond a reasonable doubt. Neyland’s course of conduct in
killing Lazar and Smith is a grave aggravating circumstance.            Neyland’s
mitigating evidence pales in comparison. We also note that Neyland shows no
remorse for what happened and does not accept responsibility for his actions.
       {¶ 305} As a final matter, we find that the penalty imposed in this case is
not “excessive or disproportionate to the penalty imposed in similar cases” of
murder as a course of conduct involving the purposeful killing of two or more
persons. R.C. 2929.05(A). See State v. Clemons, 82 Ohio St.3d 438, 696 N.E.2d
1009 (1998) (truck driver went to office of employer and murdered three co-
workers); State v. Davie, 80 Ohio St.3d 311, 686 N.E.2d 245 (1997) (former
employee killed two former co-workers and attempted to kill a third).
                                  V. Conclusion
       {¶ 306} We affirm the judgments of conviction and the sentence of death.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
       PFEIFER, J., concurs in part and dissents in part.
       O’NEILL, J., dissents.
                             ____________________



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       PFEIFER, J., concurring in part and dissenting in part.
       {¶ 307} I concur in the finding of guilt. There is no reasonable doubt
about whether Neyland committed the murders in this case.           Based on my
independent weighing of the aggravating factors and the mitigating factors,
primarily his mental health at the time the murders were committed, I conclude
that Neyland should not be put to death. I would vacate the sentence of death and
remand to the trial court under R.C. 2929.06 for a resentencing hearing in which
the death penalty is not an option.
                             ____________________
       O’NEILL, J., dissenting.
       {¶ 308} Something is terribly wrong with Ohio’s application of the death
penalty, and it does not seem to be getting any better with the passage of time. In
1994, Wilford Berry Jr.—commonly known as “the Volunteer”—began doing
everything he could to speed up the implementation of his death sentence. Berry
was convicted in 1990 of the aggravated murder of Charles Mitroff, and even then
it was clear that Berry had struggled with mental illness all his life, including
personality disorders. State v. Berry, 72 Ohio St.3d 354, 650 N.E.2d 433 (1995).
But Berry was found to be competent to waive his appeals, and on February 19,
1999, he was executed—the first person executed in Ohio in over 30 years.
       {¶ 309} Seven years later, despite Donald Ketterer’s lifelong psychiatric
problems (including bipolar disorder and personality disorders), this court
concluded that he was competent to plead guilty to aggravated murder, and we
affirmed his sentence of death. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-
5283, 855 N.E.2d 48.       In a concurring opinion, two justices of this court
expressed their belief that the state should “reexamine whether we, as a society,
should administer the death penalty to a person with a serious mental illness.” Id.
at ¶ 213 (Lundberg-Stratton, J., concurring, and Pfeifer, J., joining the
concurrence). Thus far, no such reexamination has occurred.




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       {¶ 310} I have previously stated that the death penalty is both cruel and
unusual and cannot be morally justified by retribution or deterrence. State v.
Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900 (O’Neill, J.,
dissenting). But the unconstitutionality and inhumanity of capital punishment are
even clearer when it is imposed on the mentally ill, such as Calvin Neyland. It is
plain that the families of Douglas Smith and Thomas Lazar have suffered
tremendously at Neyland’s hands, and they deserve to see Neyland punished. But
I cannot support the proposition that it is a just punishment to take the life of a
man whose delusions of persecution led him to commit the horrible acts for which
he was convicted.
       {¶ 311} The majority has concluded that Neyland had not established the
statutory mitigating factor under R.C. 2929.04(B)(3) that “at the time of
committing the offense, the offender, because of a mental disease or defect,
lacked substantial capacity to * * * conform the offender’s conduct to the
requirements of the law.” This conclusion is baffling. The experts who testified
at Neyland’s trial all agreed that Neyland suffered from significant mental
problems that affected his behavior: Dr. Bergman concluded that Neyland had a
severe personality disorder, Dr. Haskins concluded that Neyland had a mixed
personality disorder, and Dr. Smith testified that Neyland had a paranoid
personality disorder.   And the defendant’s expert, Dr. Sherman, diagnosed
Neyland with “delusional disorder, a persecutory type” and schizophrenia. Dr.
Sherman concluded that Neyland, to a reasonable degree of scientific certainty,
“was laboring under severe mental disease, mental illness * * * [and that] there is
no way he could formulate conclusions in a normal way.”
       {¶ 312} Neyland’s mental illness was apparent as far back as 1999, when
he simply fell through the cracks in the system. At the time he killed Douglas
Smith and Thomas Lazar, Neyland was living in his truck because he believed
that people were breaking into his house to listen to the messages on his



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answering machine. As Dr. Sherman observed, at the time he committed the
murders, Neyland suffered from “a severe mental illness of a paranoid type, that
he suspected virtually everybody of something, [and] that [it] probably would
have not taken very much to tip him off.” Neyland was and is very resistant to
treatment, and this is most effectively demonstrated by his refusal to participate in
developing a mitigation case. He then offered a statement in rebuttal to the
diagnosis of his own defense expert, further evidencing his denial and delusions.
A mentally competent person simply does not challenge the findings of a defense
expert who has been hired with the sole objective of saving that person’s life.
        {¶ 313} It is plain that Neyland is not now mentally fit and that he was
suffering from mental defects at the time he committed his terrible acts. As
former governor Michael DiSalle recognized in 1959 when he commuted the
sentence of Lewis Niday, “[s]urely society [does] not need to take the life of a
mentally defective individual in order to protect itself.”3 Capital punishment in
general is abhorrent, but executing the mentally ill is unconscionable. I dissent.
                               ____________________
        Paul A. Dobson, Wood County Prosecuting Attorney, and Gwen Howe-
Gebers and Heather M. Baker, Assistant Prosecuting Attorneys, for appellee.
        Spiros P. Cocoves and Ann M. Baronas, for appellant.
                           _________________________




3
 Quoted in Andrew Welsh-Huggins, No Winners Here Tonight: Race, Politics and Geography in
One of the Country’s Busiest Death Penalty States¸ at 116 (2009).




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