       [Cite as State v. Pickens, 2018-Ohio-4994.]

                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-170204
                                                         TRIAL NO. B-0905088
           Respondent-Appellee,                      :

     vs.                                             :      O P I N I O N.

MARK PICKENS,                                        :

           Petitioner-Appellant.                     :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 14, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Respondent-Appellee,

Kendra Roberts, Assistant State Public Defender, for Petitioner-Appellant.
                         OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

        {¶1}      Petitioner-appellant Mark Pickens appeals the Hamilton County Common

Pleas Court’s judgment dismissing his petition under R.C. 2953.21 for postconviction

relief. We affirm the court’s judgment.

        {¶2}      In 2010, Pickens was convicted of rape, having weapons while under a

disability, and three counts of aggravated murder. For each murder, he was sentenced to

death. The Ohio Supreme Court affirmed his convictions in 2014. State v. Pickens, 141

Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023.

        {¶3}      Pickens also sought relief from his convictions in the 2011 postconviction

petition from which this appeal derives. In 2012, the common pleas court entered

judgment dismissing the petition. On appeal, we reversed that judgment and remanded

the case, upon our determination that Pickens had been denied due process when the

common pleas court dismissed the petition upon findings of fact and conclusions of law

that had been submitted ex parte by the state, without affording Pickens notice of that

submission or an opportunity to respond. State v. Pickens, 2016-Ohio-5257, 60 N.E.3d

20 (1st Dist.).

        {¶4}      On remand, the state filed proposed findings of fact and conclusions of law

and notified Pickens of that filing, and Pickens filed his own proposed findings of fact and

conclusions of law. In 2017, the common pleas court again entered findings of fact and

conclusions of law and dismissed the petition. In this appeal from that judgment, Pickens

advances four assignments of error.

                                       The Evidence
        {¶5}      Pickens was convicted of rape and aggravated murder upon evidence that

on June 2, 2009, two days after Noelle Washington had reported to police that Pickens

had raped her, he entered Washington’s apartment and fatally shot her, her nine-month-

old son, and her friend’s three-year-old daughter.




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       {¶6}    Washington, having dated Pickens for several months, had recently

decided to end the relationship and move to another state. At his invitation, she visited his

apartment on the morning of May 31. Surveillance video of the hallway outside Pickens’s

apartment showed Washington, 90 minutes later, as she emerged from Pickens’s

apartment with disheveled hair and clothing, pounded on a neighbor’s door, returned to

his apartment, struggled with him in the hallway, and returned to the neighbor’s

apartment. The video then showed Pickens leaving the scene, and the police arriving.

       {¶7}    Washington told the neighbor and the police at the scene and during a

recorded interview that when she had refused Pickens’s demand for sex, he displayed a

handgun, restrained her, removed her clothes, forcibly raped her, and gun in hand,

threatened to kill her and himself, and that when she had told him that she was calling the

police, he pummeled her, took her cell phone, shoved her out of his apartment, and fled

the apartment building. Washington also told the police that Pickens had subsequently

texted her to ask her if she was “going to try to set him up,” and that Pickens’s mother had

called to tell her that Pickens knew that Washington had spoken with the police. The

police then recorded a phone call between Washington and Pickens, during which Pickens

denied having sex with or hitting Washington and chastised her for talking to the police

and “[telling] them everything.”

       {¶8}    Washington’s rape exam revealed fresh bite marks and lacerations

consistent with recent, nonconsensual sex.       And she repeated her rape and assault

allegations against Pickens in phone conversations with her mother, her sister, her

stepbrother, and her friend, Crystal Lewis, the mother of Pickens’s three-year-old victim,

Sha’railyn Wright.

       {¶9}    Washington also expressed to Lewis her concern that, in addition to her

cell phone, Pickens had her house keys. And Washington’s mother received a text

message from Washington’s phone, stating, “This MARK I DO NOT WANNA BE WIT YO

DAUGHTER.” Washington’s sister followed up with two phone calls and a text to


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                        OHIO FIRST DISTRICT COURT OF APPEALS



Washington’s phone number, prompting responses that included the threat, “[I]f I go to

jail, then I am going to fuck her up.”

        {¶10} That evening, Pickens went to the home of another girlfriend, told her that
he was angry because he had been accused of rape, and unsuccessfully solicited her

participation in beating up his accuser. When Pickens and the woman parted, she

observed a gun in the waistband of his pants and later received a text message from him,

stating, “I feel like killing someone.”

        {¶11} The next morning, June 1, two police detectives went to Pickens’s
apartment to question him about Washington’s allegations. When no one answered the

door, one detective wrote, “Please call me,” on the back of a business card and left the card

in the door.

        {¶12} That evening, Washington was home with her nine-month-old son,
Anthony, and three-year-old Sha’railyn Wright. Earlier in the evening, Washington’s

cousin stopped by, and Washington repeated her rape allegation and again expressed her

fear of Pickens and her concern that he had her house keys.

        {¶13} Beginning at 11:12 p.m., Washington and Sha’railyn’s mother, Crystal
Lewis, exchanged text messages, beginning with Washington’s message, “I jus woke up

mark was comin thru the kitchen,” continuing with Lewis’s expressions of concern that

Pickens could return, and ending with Washington’s final message at 11:49 p.m.,

acknowledging Lewis’s message that she was on her way to pick up Sha’railyn.

        {¶14} Two witnesses testified that they had seen Washington outside her
apartment building at approximately 11:40 p.m., in the midst of an animated conversation

with a man subsequently identified by those witnesses as Pickens. One witness continued

to observe the pair as they entered the apartment building. The witness then heard loud

music and “two pops; boom, boom,” then “another pop, pop,” and still “another pop, pop,”

and the music stopped. A short time later, Lewis arrived at Washington’s apartment and

found the apartment door open and Washington and the two children dead.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} The crime-scene investigation revealed no signs of forced entry or a
struggle, no firearm in or around the apartment, and no house keys. When the police

learned that Washington had filed rape charges against Pickens on May 31, he was

identified as a suspect in the murders and arrested.

       {¶16} Autopsies of the victims showed that Washington had died from a single
gunshot wound to the back of the head, her son had died from a close range gunshot

wound to the forehead, and Sha’railyn Wright had sustained close-range gunshot wounds

to two fingers on her left hand and a fatal wound behind her left ear. Three .45-caliber

shell casings and a projectile were recovered from Washington’s apartment. In a search of

Pickens’s apartment, a box containing 43 rounds of .45-caliber ammunition was recovered

from his closet. The casings recovered from the crime scene, along with the three .45-

caliber-automatic hollow-point bullets recovered both from the scene and during the

victims’ autopsies, were determined to have been fired from the same .45-caliber

handgun. And the ammunition found in Pickens’s closet was deemed compatible with the

weapon that had fired the bullets recovered in the autopsies.

       {¶17} The police recovered from Pickens’s apartment Washington’s son’s social
security card, debit and public-assistance cards in Washington’s name, a bicycle, and a

jacket. The cuffs and sleeves of the jacket, which had been wet when the jacket was seized,

tested positive for the presence of gunshot residue. Tests of lifts taken from the bicycle

frame, seat, handlebars, and handles revealed the presence of primer residue consistent

with contact with primer residue on another item.

       {¶18} The police also reviewed surveillance video showing the hallway outside
Pickens’s apartment on May 31 and his arrivals and departures from his apartment on

June 1 and 2. The May 31 video substantiated Washington’s statement to the police

concerning the events in that hallway and showed that, when the officers had knocked on

Pickens’s door, he had been present, but did not respond. The June 1 hallway video

showed Pickens leaving his apartment at 7:33 a.m., the detective leaving his card in the


                                                 5
                      OHIO FIRST DISTRICT COURT OF APPEALS



door of the apartment at 10:44 a.m., and Pickens returning to his apartment at 10:32 p.m.,

taking the card from the door, and five minutes later, leaving his apartment with his

bicycle, wearing the jacket that later tested positive for gunshot residue. The June 2

outside video showed Pickens returning on his bicycle to his apartment building at 12:04

a.m., while the June 1 hallway video showed him returning with his bicycle to his

apartment at 11:58 p.m. That discrepancy was found to be attributable to the timer on the

outside video being five minutes fast and the hallway video being two minutes slow. The

police subsequently clocked the trip by bicycle between Pickens’s and Washington’s

buildings at less than four minutes.

       {¶19} In his June 2 statement to police, Pickens denied raping Washington on
May 31 or killing her on June 1. DNA testing had identified Pickens as the source of semen

on a vaginal swab collected from Washington. Nevertheless, Pickens asserted that they

had not had sex since earlier that week, and that they had done nothing more than “play[]

rough” on May 31. Washington, he insisted, had left his apartment with his phone and

then texted him that she had called the police because he had taken her phone and had

“pulled her hair and stuff.” He stated that he had spent June 1 at his mother’s house until

8:00 or 9:00 p.m., when he returned to his apartment and remained there until retiring

around midnight.     He denied going to Washington’s apartment on June 1, and he

declared, variously, that he had not been there for either a month or nine months. He

dismissed the possibility that others had seen him at Washington’s apartment building or

that surveillance video showed him leaving his apartment and later returning. He denied

owning a firearm or ammunition and dismissed the possibility that the police had found

ammunition in his closet. He insisted that he had not known that the police wanted to talk

to him until he found the detective’s card in his door the previous night. And he denied

knowing what they wanted to discuss.

       {¶20} The state also presented at trial testimony by a jail inmate who had been
housed with Pickens in the same cell block. The jailhouse informant testified that Pickens


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                       OHIO FIRST DISTRICT COURT OF APPEALS



had told him, “I killed that bitch and the babies” because “the girl kept calling the police

on him,” that he killed Sha’railyn because she knew him and could identify him, and that

he shot Washington’s son “[b]ecause the baby was just there, like he got a rush out of it.”

The informant also testified to Pickens’s statement that the .45-caliber-automatic hollow-

tip bullets that he had used to shoot Washington and the children were not the same kind

of ammunition that was found at his apartment. The defense sought to impeach the

jailhouse informant with evidence that the informant had written to Pickens offering to

not testify in exchange for $300, and that the informant had received consideration for his

testimony against Pickens in the form of a plea agreement allowing him to plead guilty to a

single count of voluntary manslaughter with a 13-year agreed sentence in exchange for the

dismissal of aggravated-murder, murder, aggravated-robbery, robbery and weapons

charges.

                    Findings of Fact and Conclusions of Law
       {¶21} In his first assignment of error, Pickens asserts that the common pleas
court “failed[ed] to author” the findings of fact and conclusions of law filed on remand and

thus “once again delegated its judicial function” under R.C. 2953.21(C) and denied him the

protections of the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. This argument mistakes the import of our 2016 decision.

       {¶22} In that decision, we noted that R.C. 2953.21 (C) required the common pleas
court, in making findings of fact and conclusions of law, to engage in a deliberative process

that entailed consideration of the petition, supporting affidavits, and documentary

evidence, along with the files and records of the proceedings leading to the petitioner’s

conviction, to determine whether “there are substantive ground for relief.” Pickens, 2016-

Ohio-5257, 60 N.E.3d 20, at ¶ 19. That deliberative process, we determined, could not be

delegated.   Id.   And Pickens was denied due process, when the court’s ex parte

communication with the state in making its 2012 findings of fact and conclusions of law




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                       OHIO FIRST DISTRICT COURT OF APPEALS



undermined any confidence that the court had engaged in that deliberative process. Id.

at ¶ 25, following State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168.

       {¶23} The common pleas court’s 2017 entry on remand, like its 2012 entry, was
captioned “Proposed Findings of Fact, Conclusions of Law, and Entry Dismissing Petition

to Vacate.” And the court again adopted verbatim the proposed findings of fact and

conclusions of law submitted by the state. But in Pickens’s initial appeal, we presumed

that the court’s 2012 entry had been based upon consideration of, because the entry

followed the submission of, arguments presented at a hearing on the petition and the

motions, along with the pleadings, motions, and responses. See Pickens, 2016-Ohio-5257,

60 N.E.3d 20, at ¶ 8-9. Similarly, we here presume that the court’s 2017 entry, which

followed the filing of proposed findings of fact and conclusions of law by both the state and

Pickens, was additionally based upon those submissions. Consequently, the findings of

fact and conclusions of law contained in the 2017 entry were not demonstrably the

product of the common pleas court’s failure to engage in the deliberative process

mandated by R.C. 2953.21(C). Therefore, Pickens was not denied due process.

       {¶24} Additionally, while the deliberative process mandated by R.C. 2953.21(C)
may not be delegated, the drafting responsibility may. Thus, a court’s verbatim adoption

of a party’s proposed findings of fact and conclusions of law will not, alone, provide a

ground for reversal if those findings of fact and conclusions of law adequately advance

their purposes, that is, if they cover and pertain to the material and determinative issues

presented in the petition and adequately apprise the petitioner and the reviewing court of

the legal and evidentiary bases for the decision denying the petition. State v. Calhoun, 86

Ohio St.3d 279, 291-292, 714 N.E.2d 905 (1999), citing State ex rel. Carrion v. Harris, 40

Ohio St.3d 19, 530 N.E.2d 1330 (1988), and State v. Clemmons, 58 Ohio App.3d 45, 46,

568 N.E.2d 705 (2d Dist.1989); State v. Powell, 90 Ohio App.3d 260, 263, 629 N.E.2d 13

(1st Dist.1993); State v. Sowell, 73 Ohio App.3d 672, 676, 598 N.E.2d 136 (1st Dist.1991).

See Pickens, 2016-Ohio-5257, 60 N.E. 3d 20, at ¶ 18. The findings of fact and conclusions


                                                 8
                        OHIO FIRST DISTRICT COURT OF APPEALS



of law contained in the 2017 entry dismissing Pickens’s postconviction petition were

adequate to those tasks. Accordingly, we overrule the first assignment of error.

                                  The Postconviction Claims
        {¶25} In his second assignment of error, Pickens challenges the common pleas
court’s dismissal of his postconviction petition without an evidentiary hearing. We find no

merit to any aspect of his challenge.

        {¶26} In his postconviction petition, Pickens sought relief from his conviction on
eleven grounds. To prevail on a postconviction claim, the petitioner must demonstrate a

denial or infringement of his rights in the proceedings resulting in his conviction that

rendered the conviction void or voidable under the Ohio or United States Constitution.

R.C. 2953.21(A)(1). The petitioner bears the initial burden of demonstrating “substantive

grounds for relief” through the petition, with its supporting affidavits and other

documentary evidence, and the trial record. R.C. 2953.21(C). A postconviction claim is

subject to dismissal without a hearing if the petitioner has failed to support the claim with

evidentiary material setting forth sufficient operative facts to demonstrate substantive

grounds for relief. Id.; State v. Pankey, 68 Ohio St.2d 58, 59, 428 N.E.2d 413 (1981); State

v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus. Conversely, “the court

must proceed to a prompt hearing on the issues” if “the petition and the files and records

of the case show the petitioner is * * * entitled to relief.” R.C. 2953.21(E).

        {¶27} The common pleas court applied the doctrine of res judicata to bar some of
Pickens’s postconviction claims.        Under the doctrine of res judicata, a judgment of

conviction bars a defendant from raising in any proceeding, other than a direct appeal

from that judgment, any claim “that was raised or could have been raised” in the direct

appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus. Thus, res judicata bars a postconviction claim that could fairly have been

determined in the direct appeal, based upon the trial record and without resort to evidence

outside the record. Id.; State v Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982).


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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶28} A postconviction petitioner may resist the application of res judicata to bar
his postconviction claim by supporting the claim with outside evidence. But merely

submitting outside evidence will not preclude the common pleas court from applying res

judicata to bar a claim. The claim must depend on the outside evidence for its resolution.

Id. And the outside evidence must be “competent, relevant and material” to the claim, it

must “meet some threshold standard of cogency” by being more than “marginally

significant,” and must “advance the * * * claim beyond mere hypothesis and a desire for

further discovery.” State v. Coleman, 1st Dist. Hamilton No. C-900811, 1998 WL 74756

(Mar. 17, 1993).

       {¶29} When a postconviction claim depends for its resolution upon outside
evidence, a common pleas court may not apply res judicata to dismiss the claim. Perry at

paragraph nine of the syllabus; Cole at 114. But a reviewing court may sustain the

dismissal of the claim on other grounds. State v. Peagler, 76 Ohio St.3d 496, 668 N.E.2d

4897 (1996), paragraph one of the syllabus; State v. Blankenship, 38 Ohio St.3d 116, 119,

526 N.E.2d 816 (1988). Accord State v. Gipson, 1st Dist. Hamilton Nos. C-960867 and C-

960881, 1997 WL 598397 (Sept. 26, 1997).

       {¶30} Nine of Pickens’s postconviction claims sought relief on the grounds that
his trial counsel had been constitutionally ineffective in investigating, preparing, and

presenting his case.    To prevail on a claim of ineffective assistance of counsel, a

postconviction petitioner must demonstrate (1) that counsel’s performance fell below an

objective standard of reasonableness, and (2) that counsel’s deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 13 (1989). To establish

prejudice, the petitioner must demonstrate that counsel’s deficient performance “so

undermined the proper functioning of the adversarial process that the trial could not have

reliably produced a just result.” State v. Powell, 90 Ohio App.3d 260, 266, 629 N.E.2d 13




                                               10
                      OHIO FIRST DISTRICT COURT OF APPEALS



(1st Dist.1993), citing Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 112 L.Ed.2d 180

(1993), and Strickland.

       {¶31} Ineffective counsel—voir dire. Pickens contended in his first
ground for relief that his trial counsel had been ineffective during voir dire in failing to

question juror Carroll concerning views expressed in his juror questionnaire favoring the

death penalty and in failing to exercise an unused peremptory challenge to exclude that

juror because of those views and his racially biased statements. The Ohio Supreme Court

rejected this challenge on direct appeal. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25

N.E.3d 1023, at ¶ 204-214. And Pickens’s postconviction challenge to his trial counsel’s

effectiveness in that regard was subject to dismissal under the doctrine of res judicata,

because he had been represented by new counsel in his direct appeal, and the issue could

fairly have been determined without evidence outside the trial record. See Cole, 2 Ohio

St.3d at ¶ 114 and syllabus, 443 N.E.2d 169.

       {¶32} Disproportionate imposition of death penalty. In his second
ground for relief, Pickens contended that he had been denied rights secured by the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, because in

the state of Ohio and in Hamilton County, the death penalty is imposed disproportionately

upon racial minorities. He supported this claim with statistical data comparing the racial

make-up of the population of Ohio and Hamilton County with the racial make-up of the

death-row population of the state and the county.

       {¶33} Statistical evidence alone will not establish the discriminatory imposition
of the death penalty. McCleskey v. Kemp, 481 U.S. 279, 313, 107 S.Ct.1756, 95 L.Ed.2d

262 (1987). Rather, the defendant must demonstrate that “the decisionmakers in his case

acted with discriminatory purpose,” and that such actions had a discriminatory effect on

the proceeding. (Emphasis in original.) State v. Dickerson, 45 Ohio St.3d 206, 216, 543

N.E.2d 1250 (1989), quoting McCleskey at 292; see State v. Zuern, 32 Ohio St.3d 56, 64-

66, 512 N.E.2d 585 (1987), syllabus (holding that “[t]here can be no finding that the death


                                                11
                        OHIO FIRST DISTRICT COURT OF APPEALS



penalty is imposed in a discriminatory fashion absent a demonstration of specific

discriminatory intent”); State v. Jones, 1st Dist. Hamilton No. C-990813, 2000 WL

1886307 (Dec. 29, 2000) (holding that “[s]tatistics indicative of a disparate impact alone

are insufficient to establish a claim of discriminatory enforcement of the death penalty”).

        {¶34} Pickens offered nothing in support of his second ground for relief that
might be said to show that the decisionmakers imposing the death penalty on him had

acted with a discriminatory purpose. Therefore, the common pleas court properly denied

relief on that ground

        {¶35} Ineffective counsel—residual doubt.                  Pickens asserted in his

seventh ground for relief that his trial counsel had been ineffective in failing to present

evidence documenting his “future plans,” to counter the state’s theory of the case, that

Pickens had killed Washington out of anger over her rape allegation, and to support the

defense theory during the guilt phase of the trial that he had not committed either crime

and during the penalty phase of the trial that there remained residual doubt concerning

his guilt.

        {¶36} In his direct appeal, Pickens challenged his trial counsel’s effectiveness in
presenting his residual-doubt claim. In addressing this challenge, the Supreme Court

noted that residual doubt has long been held to not be a mitigating factor under R.C.

2929.04(B). Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 226,

citing State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997), syllabus.

Nevertheless, Pickens’s counsel moved before trial for permission to argue and present

evidence on residual doubt as a mitigating factor and for a residual-doubt instruction.

Even after that motion had been denied, counsel argued residual doubt during the penalty

phase of the trial. And the trial court, in weighing the mitigating factors, “considered,” yet

“[gave] no weight” to residual doubt as a mitigating factor, because the evidence left “no

doubt whatsoever that [Pickens had] committed the [] offenses.” Pickens at ¶ 227.




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Uncertain of what more trial counsel could have done in presenting the issue of residual

doubt, the Supreme Court concluded that counsel had not been ineffective in that regard.

       {¶37} The evidence offered in support of Pickens’s postconviction challenge does
not alter that assessment. Pickens supported his seventh ground for relief with evidence

in the form of April 2009 Department of Youth Services records documenting his future

plans to seek employment and attain his General Equivalency Degree, a May 2009

certificate of his completion of a home health-aid/nursing-assistant program, and

documents and affidavits offered to show that on June 1, 2009, he had, “without any issue

and without appearing upset,” met with his probation officer after pleading guilty to and

receiving a suspended sentence for unauthorized use of property.

       {¶38} But the trial court, in weighing the mitigating factors, had before it
Pickens’s unsworn statement, during which he had spoken of his employment history, of

“going to school to be a nursing assistant,” and of receiving his GED from Cincinnati State

University.   Id. at ¶ 224 and 246-247. And the Supreme Court, in conducting its

independent sentence evaluation, must be said to have considered, but rejected residual

doubt as a mitigating factor, when the court concluded that the evidence adduced at trial

proved “beyond even a residual doubt” that Pickens had murdered Washington and the

children. Id. at ¶ 254.

       {¶39} The evidence offered in support of Pickens’s seventh ground for relief
cannot be said to demonstrate an outcome-determinative deficiency in his trial counsel’s

presentation of his residual-doubt claim. Therefore, the common pleas court properly

denied relief on that ground.

       {¶40} Ineffective counsel—guilt-phase evidence. In his eighth and
ninth grounds for relief, Pickens contended that his trial counsel had been ineffective in

investigating and presenting his case during the guilt phase of his trial, when counsel

failed to discover and present evidence countering the state’s evidence that Pickens had

had the opportunity to kill Washington and the children and that he had killed


                                                13
                        OHIO FIRST DISTRICT COURT OF APPEALS



Washington to escape prosecution for raping her. The common pleas court properly

denied relief on those grounds without a hearing.

        {¶41} Pickens asserted in his eighth ground for relief that counsel should have
discovered and presented at trial evidence showing that the brakes on his bicycle had been

inoperable. That evidence, he argued, would have discredited the state’s timeline for the

murders, which required riding the bicycle from the crime scene to his apartment building

at 19 m.p.h. In support, Pickens offered the affidavit of an investigator with the Ohio

Public Defender’s office, who had examined the bicycle and discovered its deficiency in

2011.

        {¶42} But Pickens did not provide any evidence that might be said to show the
effect of inoperable bicycle brakes on his ability to cover the distance between the crime

scene and his apartment within the time established by the state’s evidence. Thus, with

his eighth ground for relief, Pickens failed to demonstrate an outcome-determinative

deficiency in trial counsel’s failure to discover or present that evidence at trial.

        {¶43} In his ninth ground for relief, Pickens asserted that counsel should have
objected to the admission of the May 31 surveillance video showing Washington emerging

from Pickens’s apartment into the hallway, screaming and pounding on the neighbor’s

door, and then struggling with Pickens. He argued that the video, which provided no

audio, had been misleading and prejudicial, because without the sound, the jury had been

unaware that Washington’s conduct in the hallway had been accompanied not by

expressions of fear or anger at being raped, but by angry accusations concerning other

women. Pickens supported the ground with his own affidavit offering his version of

Washington’s statements in the hallway.

        {¶44} In the direct appeal, the Supreme Court rejected Pickens’s challenge to the
sufficiency of the evidence to establish his guilt of the R.C. 2929.04(A)(3) specification

accompanying the count of the indictment charging him with the aggravated murder of

Washington, which charged that he had killed her to escape detection, apprehension, trial,


                                                   14
                      OHIO FIRST DISTRICT COURT OF APPEALS



or punishment for rape.       The court found the evidence of his guilt of the R.C.

2929.04(A)(3) specification “overwhelming,” based on its review of the evidence, both

with and without those statements of Washington that were not admissible under the

Evid.R. 804(B)(6) unavailable-declarant exception to the hearsay rule. See Pickens, 141

Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 180-191.

       {¶45} The Supreme Court also rejected on appeal Pickens’s challenges to the
sufficiency of the evidence to support his rape and aggravated-murder convictions. The

court acknowledged “inconsistencies” and “discrepancies” in Washington’s statements,

but found that her statements and the testimony of the state’s witnesses to those

statements were “neither inherently unreliable nor unbelievable.”          And the court

concluded that the evidence supporting Pickens’s aggravated-murder and rape

convictions was “overwhelming.” See id. at ¶ 193-197.

       {¶46} The May 31 hallway video is not inconsistent with Pickens’s neighbor’s

testimony that Washington had told her that Pickens had raped her and that she was

afraid of him. The averments of Pickens’s affidavit to the contrary would have been

admissible to impeach the neighbor’s testimony, but would not have required

exclusion of the video under Evid.R. 403(A) on the ground that it did not fairly and

accurately depict Washington’s conduct in the hallway that day. See Pickens at ¶ 153

(holding that Pickens’s objections concerning the timing system or other quality

problems with the state’s exhibit consisting of spliced-together surveillance video

went to the weight of that evidence, not its admissibility). Moreover, even without the

May 31 hallway video, the evidence supporting Pickens’s convictions for the rape and

aggravated murder of Washington is substantial. Thus, with his ninth ground for relief,

Pickens failed to demonstrate an outcome-determinative deficiency in trial counsel’s

performance in failing to object to the admission of the May 31 hallway video.

       {¶47} Ineffective counsel—mitigation evidence.                   Pickens directed

grounds for relief three through six and ground for relief ten against the adequacy


                                                15
                      OHIO FIRST DISTRICT COURT OF APPEALS



and effectiveness of his trial counsel’s investigation of, preparation for, and

presentation of his case in mitigation. Relief on those grounds was properly denied

without an evidentiary hearing.

       {¶48} During the penalty phase of Pickens’s trial, his mother testified to her own
childhood of abuse and experience with the foster-care system, and she asked the jury to

spare her son’s life. Pickens, in his unsworn statement and statement in allocution,

expressed sorrow for the deaths of the victims and for his mother’s pain, but maintained

his innocence. In response to the trial court’s questions, he affirmed that he had been 19

years old at the time of the offenses, and he spoke of his work history and getting his GED.

       {¶49} In the course of its independent evaluation of Pickens’s death
sentences, the Supreme Court considered the nature and circumstances of his

offenses and his history, character, and background, along with the R.C.

2929.04(B)(4), (5), and (7) mitigating factors: his youth at the time of his offenses;

his lack of a significant criminal or juvenile delinquency history; and “other factors *

* * relevant to the issue of whether [he] should be sentenced to death.” Pickens, 141

Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 248-257. The court deemed

inapplicable the R.C. 2929.04(B)(1), (2), (3), and (6) mitigating factors: the victim

induced the offense; the offender was not the principal offender; the offender committed

the offense under duress, coercion, or strong provocation; or “the offender, 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.” Id. at ¶ 250.

       {¶50} The court noted that during the penalty phase of Pickens’s trial, his
counsel had neither argued nor presented evidence to demonstrate the (B)(5)

mitigating factor, lack of significant history of prior criminal convictions and

delinquency adjudications. But counsel and the state had, prior to trial, stipulated to

the two juvenile adjudications for drug possession underlying Pickens’s weapons




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charge and to his misdemeanor conviction for unauthorized use of property. This

factor was thus accorded “some weight” in mitigation. Id. at ¶ 251.

       {¶51} The court gave “significant weight” to Pickens’s youth. While finding
“little mitigating value” in his personal history and background, the court also gave

“weight” under R.C. 2929.04(B)(7) to his mother’s love and support, his employment

history, and the fact that he had earned his GED.         But the court found that his

protestations of innocence “negated the mitigating weight that [the court] might otherwise

give to his expressions of sorrow” for the deaths of Washington and the children. And the

court found nothing mitigating in the nature and circumstances of Pickens’s offenses and

rejected as a mitigating circumstance residual doubt concerning his guilt of the offenses.

Id. at ¶ 248, 252-255.

       {¶52} The court concluded that the aggravating factors outweighed the mitigating

factors beyond a reasonable doubt. Specifically, the court held that the course-of-

conduct and escaping-detection specifications accompanying the aggravated-murder

charge involving Washington “strongly outweigh[ed]” the mitigating factors, that the

child-murder specification accompanying the aggravated-murder charges involving

the two children was entitled to “great weight,” and that both the course-of-conduct

and child-murder specifications charged with regard to the children “overwhelm the

mitigating factors.” Id. at ¶ 256.

       {¶53} In the third ground for relief advanced in his postconviction petition,
Pickens argued that his trial counsel had been ineffective in presenting evidence

concerning his family history, background, and character. He asserted that counsel

had presented in mitigation an “incomplete social history,” when they failed to elicit

from his mother “more comprehensive testimony” concerning her mental-health

issues. He supported the ground with evidence in the form of family photos; an

affidavit provided by his mother, attesting to her alienation from her family, health

problems, and physical abuse by the men in her life; and affidavits provided by his


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relatives and former boxing coaches, attesting to his father’s absence from his life,

his mother’s poor parenting skills and suspected mental-health issues, and the

neglect and physical and emotional abuse he suffered at the hands of his mother.

       {¶54}    In his sixth ground, Pickens argued that his trial counsel had been

ineffective in presenting evidence demonstrating his “adaptability to the institutional

setting.” He supported that ground with outside evidence in the form of comments

compiled in reports pertaining to his confinement in the Department of Youth Services

for his juvenile drug offenses.

       {¶55} In grounds four, five, and ten, Pickens asserted that he suffered from a
learning disability and neuropsychological impairment as a consequence of blows to

the head, and that his trial counsel had been ineffective in failing to reasonably

investigate and present in mitigation testimony by a psychologist and a

neuropsychologist to establish that fact or to request neurological testing to

corroborate that testimony.       He supported those grounds with affidavits by his

boxing coaches, who attested to the physical punishment he endured as a boxer and

during fights at school. He also offered the affidavits of a psychologist and clinical

neuropsychologist. Psychologist Bob Stinson concluded that an expert should have

been employed to assess Pickens and present in mitigation testimony about

neurological or neuropsychological impairment, and that expert psychological

testimony relevant to Pickens’s history, character, and background should have been

presented about the effects on his development and behavior as a consequence of his

mother’s youth when she gave birth, her inadequate parenting, his father’s absence,

the lack of structure and consistency in his life, and his family’s mental-illness,

domestic-violence, and abuse issues. Clinical neuropsychologist Barry S. Layton’s

examination of Pickens “permit[ted] a reasonable conclusion” that “prior and

contemporaneously to [his] crimes,” he had operated under the “effects of organic

neurological dysfunction” as a consequence of “traumatic brain injury,” causing


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                     OHIO FIRST DISTRICT COURT OF APPEALS



“neuropsychiatric decompensation * * * particularly under stress,” and thus making

him “prone to act[ing] impulsively in a manner to protect his ego or his physical

integrity.” Dr. Layton stated that expert opinion testimony concerning Pickens’s

neurological dysfunction could and should have been corroborated with

neuroradiological testing and presented during the penalty phase of his trial.

       {¶56} In his direct appeal, Pickens contended that his trial counsel had been
ineffective in failing to request a neuropsychological examination or to present

psychological evidence during the penalty phase of his trial. The Supreme Court

noted that Pickens’s counsel had had a duty to reasonably investigate his

“background, education, employment record, mental and emotional stability, and

family relationships.” Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at

¶ 219, quoting Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). But the court

further noted that counsel had had no duty to present every potential mitigation

theory and, on that basis, rejected Pickens’s assertion that counsel had been “duty-

bound” to present psychological testimony in mitigation. Id. at ¶ 225.

       {¶57} Moreover, the record on appeal did not demonstrate that counsel’s
investigation had been inadequate.        Counsel hired two psychologists and a

psychiatrist to evaluate Pickens. Billing records reflect multiple encounters with

Pickens and his counsel. But the record on appeal did not reflect their conclusions.

And the postconviction conclusions of Dr. Stinson and Dr. Layton, which Pickens

had appended to his appellate brief, were not properly a part of the record. The court

found that, in the absence of evidence to the contrary, the record allowed for the

possibility that the defense’s experts had concluded that a neurological evaluation

was unnecessary, and that those experts had provided counsel with sufficient

information about Pickens’s psychological background to permit counsel to make an

informed decision to present no psychological evidence in mitigation. Counsel’s

decision to present no psychological evidence was, in the court’s assessment, a


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                       OHIO FIRST DISTRICT COURT OF APPEALS



strategic one.   And because neither the failure to request a neuropsychological

evaluation nor the decision to present no psychological evidence was demonstrably

the result of counsel’s violation of their duty to reasonably investigate Pickens’s

background, the court held that counsel had not been ineffective in either regard.

       {¶58} That conclusion is not altered by the outside evidence offered by
Pickens in support of his postconviction challenges to counsel’s effectiveness during

the penalty phase of his trial. To the contrary, Dr. Stinson provided in his affidavit

what the record on appeal had not: insight into counsel’s decision to present no

psychological evidence in mitigation. Dr. Stinson averred that his review of the

mitigation evidence had included an interview with the defense’s “mitigation

psychologist,” and that she told him that she had “not identif[ied] any mitigating

factors in [the] case.” The evaluations conducted by Dr. Stinson and Dr. Layton led

them to conclude otherwise. But in the absence of some suggestion at the time that

the extensive evaluations conducted by the defense’s experts had been in some way

deficient, counsel had no duty to seek additional evaluations. Thus, the decision to

present no psychological evidence could not be said to have been a product of

counsel’s violation of the duty to conduct a reasonable investigation, when that

decision was made in consultation with three psychological experts whose

evaluations of Pickens had led them to conclude that there was no mitigating

psychological evidence to be presented.

       {¶59} Nor could Pickens be said to have been prejudiced by counsel’s failure
to present in mitigation the outside evidence offered in support of grounds three

through six and ground ten. The comments contained in the Department of Youth

Services records that were offered to show Pickens’s adaptability to an institutional setting

were offset by contrary comments in those records and by an uncle’s statement in his

affidavit that Pickens “went downhill” following his confinement there.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶60} The Supreme Court gave “weight” under R.C. 2929.04(B)(7) to Pickens’s
mother’s love and support. The affidavits of estranged family members and former

coaches offered concerning his mother’s life and parenting skills conflicted with the

defense’s portrayal of her as a loving and supportive parent. And those affidavits

provided nothing more than speculation about her alleged mental-health issues.

       {¶61} The psychological and neuropsychological evidence, offered to show that
Pickens suffered from “organic neurological dysfunction” and that the stress of

Washington’s rape accusations might have caused him to “act impulsively,” could not

plausibly have been offered to demonstrate the R.C. 2929.04(B)(3) or (7) mitigating

factors. Throughout the guilt and penalty phases of his trial, Pickens maintained his

innocence of the murders. And the evidence adduced at trial proved beyond a

reasonable doubt that Pickens had killed Washington and the children purposefully

and deliberately, not impulsively or as a consequence of a mental disease or defect

that prevented him from appreciating the criminality of his conduct or conforming his

conduct to the law.

       {¶62} The Ohio Supreme Court has long held, and recently reaffirmed, that
the decision to present or not present mitigating evidence is a matter of trial strategy,

and that “[s]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.” State v. Cepec, 149 Ohio

St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 123, citing State v. Hand, 107 Ohio

St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 225, and quoting Strickland, 466 U.S. at

690-691, 104 S.Ct. 2052, 80 L.Ed.2d 674. Pickens failed to support grounds three

through six and ground ten with outside evidence demonstrating that his counsel’s

performance in preparing for and presenting the case in mitigation fell below an objective

standard of reasonableness or was so deficient that the penalty phase of his trial could not

have reliably produced a just result. See Powell, 90 Ohio App.3d at 266, 629 N.E.2d 13.

Therefore, the common pleas court properly denied relief on those grounds.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶63} Cumulative error. In his eleventh ground for relief, Pickens contended
that the cumulative effect of the constitutional deprivations alleged in his petition’s other

claims was to deny him a fair trial. A judgment of conviction may be reversed if the

cumulative effect of errors deemed separately harmless is to deny the defendant a fair

trial. State v. DeMarco, 31 Ohio St.3d 191, 509 NE.2d 1256 (1987), paragraph two of the

syllabus. The doctrine of “cumulative error” will not provide a basis for reversal in the

absence of multiple errors. State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d 52

(2000). Because Pickens failed to support his postconviction petition with evidence

demonstrating multiple constitutional deprivations, the common pleas court properly

denied the cumulative-error challenge advanced in his eleventh claim. See State v. Van

Hook, 1st Dist. Hamilton No. C-910505, 1992 WL 308350 (Oct. 21, 1992).

       {¶64} We, therefore, conclude that the common pleas court properly denied
Pickens relief from his convictions on the grounds presented in his postconviction

petition. Accordingly, we overrule his second assignment of error.

                                        Discovery
       {¶65} In his third and fourth assignments of error, Pickens challenges the
overruling of his motions for discovery and for the funds for neurological testing to aid

him in that discovery. This challenge is untenable.

       {¶66} R.C. 2953.21(A)(1)(d) now confers upon a common pleas court the
discretion to permit certain kinds of discovery by a capital petitioner “for good cause

shown.” But in 2011, when Pickens filed his postconviction petition, the postconviction

statutes did not contemplate discovery in the initial stages of a postconviction proceeding.

State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio St.3d 158, 159, 718 N.E.2d

426 (1999); State v. Zuern, 1st Dist. Hamilton Nos. C-900481 and C-910229, 1991 WL

256497 (Dec. 21, 1991).




                                                22
                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶67} Pickens was not entitled to discovery or the funding for experts to aid in
discovery, because his postconviction claims were subject to dismissal without an

evidentiary hearing. Therefore, we overrule the third and fourth assignments of error.

                                        We Affirm
        {¶68} Finding no merit to any aspect of the challenges advanced in this appeal,
we affirm the common pleas court’s judgment dismissing Pickens’s postconviction

petition.

                                                                        Judgment affirmed.

CUNNINGHAM, P.J., ZAYAS and MILLER, JJ.

Please note:

        The court has recorded its own entry on the date of the release of this opinion.




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