[Cite as State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524.]




             THE STATE OF OHIO, APPELLEE, v. HUNTER, APPELLANT.
          [Cite as State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524.]
Criminal law—Aggravated murder—Death penalty affirmed.
 [No. 2007-2021—Submitted October 18, 2011—Decided December 20, 2011.]
 APPEAL from the Court of Common Pleas of Hamilton County, No. B-0600596.
                                  __________________
        MCGEE BROWN, J.
        {¶ 1} This is an appeal of right by defendant-appellant, Lamont Hunter. A
three-judge panel convicted Hunter for the aggravated murder and rape of three-
year-old Trustin Blue under R.C. 2903.01(C) and 2907.02(A)(1)(b). The panel
also convicted Hunter of child endangerment under R.C. 2919.22(B)(1). The
panel sentenced Hunter to death based on two death-penalty specifications: R.C.
2929.04(A)(7) (aggravated murder while committing or attempting to commit
rape) and 2929.04(A)(9) (aggravated murder of a child under the age of 13).
        {¶ 2} For the following reasons, we affirm Hunter’s convictions and
sentence of death.
                                    The State’s Case
        {¶ 3} In late 2003, Hunter and Luzmilda Blue began a romantic
relationship. Hunter then started living with Luzmilda and her three boys, Tyree,
Tyrell, and Trustin Blue, born September 12, 2002. Hunter was not the biological
father of any of these children. Hunter and Luzmilda later became the parents of
a girl, Trinity Hunter.
        {¶ 4} After Trustin was born, Luzmilda became sick, and Wilma Forte, a
family friend, began taking care of Trustin. Trustin had lived with Forte and her
daughter, Amber White, five or six days a week until his death.
                            SUPREME COURT OF OHIO




        {¶ 5} On January 30, 2004, Trustin was taken to the emergency room at
Cincinnati Children’s Hospital because he was unable to bear weight on his left
leg. X-rays showed that Trustin had a broken leg. Hunter told medical personnel
that he had fallen on some steps while holding Trustin and had landed on him.
Doctors accepted Hunter’s explanation that Trustin’s injuries were accidental.
        {¶ 6} On June 9, 2004, Luzmilda took Trustin to the emergency room after
noticing that his lips and penis were swollen. She also noticed other injuries on
Trustin’s face and head.     Trustin had been left in Hunter’s care that day.
Luzmilda had not noticed any of these injuries when she left the house earlier that
morning.
        {¶ 7} Dr. Kathy Makoroff, the examining physician, determined that
Trustin had a swollen upper and lower lip, an abrasion in one ear and a scratch on
his ear canal, hair loss and bruising on one side of his head, and bruising on the
tops of both ears. His penis was swollen and had an abrasion at its base.
        {¶ 8} Dr. Makoroff could not rule out the possibility that a bug had gotten
into a loose-fitting diaper and had caused the swelling. But a bug bite would not
have caused the bruising on the penis. Moreover, X-rays showed that Trustin had
suffered several fractures, in addition to the fracture from January.        These
included an old and a new fracture on a hand and two fractures on a foot. Dr.
Makoroff referred Trustin’s case to children services and law-enforcement
authorities.
        {¶ 9} Tiffany Bradbury, an investigator with Hamilton County Job and
Family Services, interviewed Hunter about Trustin’s injuries. Hunter stated that
that he did not see any injuries on Trustin on June 9 and denied hurting him.
Hunter said that when he was walking down the stairs with Trustin, he had
tripped, and maybe Trustin had been injured.
        {¶ 10} Criminal charges were not brought against Hunter for Trustin’s
injuries. But Trustin was removed from his home in June 2004 and was placed




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with his aunt, Latoya Gresham. Amber White obtained custody of Trustin six
months later. In June 2005, Trustin was returned to Luzmilda’s custody. But
after a week, Luzmilda took Trustin back to White’s home.
       {¶ 11} Beginning in 2003, White had noticed that Trustin was afraid of
Hunter. She stated that Trustin would start crying, shaking, and vomiting when
Hunter came around. Forte noticed similar behavior. Forte testified that on one
occasion, she was holding Trustin, and he started vomiting when Hunter passed
them. On January 17, 2006, two days before he was killed, Trustin told Forte that
he was “scared of Lamont. Lamont scared. Lamont hurt Trustin.”
       {¶ 12} On January 17, 2006, Trustin was staying at White’s home. That
afternoon, Luzmilda picked up Trustin and took him to her home. Before leaving,
Forte gave Trustin a bath and dressed him. Forte did not notice any injuries in
Trustin’s anal area or elsewhere on his body.
       {¶ 13} At 9:00 a.m. on January 19, 2006, Forte spoke to Hunter and
Trustin on the telephone for more than 15 minutes. Hunter said that Trustin was
fine and was watching a movie. Trustin told Forte that he was watching the
movie Jurassic Park. Forte stated that Trustin’s voice sounded shaky, and he did
not seem to be his normal, energetic self.
       {¶ 14} Two hours later, Hunter called Luzmilda at work and told her that
Trustin had been injured. Luzmilda rushed home. At 11:21 a.m., Luzmilda called
9-1-1 and reported that her son had been hurt after falling down the stairs.
       {¶ 15} EMTs arriving at the scene found that Trustin had a low pulse rate
and labored breathing and was paralyzed and nonresponsive. Lieutenant Eric
Prather, a Cincinnati fireman, asked Hunter how Trustin had been injured. Hunter
said that Trustin had fallen down the basement steps. Hunter stated that he
thought that Trustin had fallen when Trustin had tried to stop Tiffany from going
down the steps.




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        {¶ 16} Dr. Makoroff examined Trustin when he was taken to Children’s
Hospital. Hunter and Luzmilda told Dr. Makoroff that Trustin had been in his
normal state of health that morning. Hunter then explained that he was in the
basement doing laundry with his nine-month-old daughter.            He heard some
rumbling upstairs and saw Trustin tumbling down the basement steps, landing on
the concrete floor. Hunter said that Trustin had been unresponsive when he went
to help him. Hunter splashed water on Trustin’s face. When Trustin did not
respond, Hunter called Luzmilda at work.
        {¶ 17} Dr. Makoroff’s examination of Trustin showed that his injuries
were not consistent with a fall down the stairs. Trustin suffered a diffuse injury to
his brain. He had subdural hemorrhages on both sides of the brain that extended
into the middle of the brain. Swelling of his brain was so severe that it had started
to herniate into the spinal column. Further examination showed that Trustin had
suffered a deep anal tear. The injury was acute and could have been just hours
old. Dr. Makoroff testified that the bruising and lacerations were consistent with
the insertion of an object into the anal cavity.
        {¶ 18} During the afternoon of January 19, 2006, Cincinnati police
detectives Jane Noel and Jim Wiggington interviewed Hunter about Trustin’s
injuries.   After waiving his Miranda rights, Hunter provided a videotaped
statement, most of which was played for the panel at trial. In the video, Hunter
addresses questions about Trustin’s 2004 injuries, as well as the ones that he had
suffered that day.
        {¶ 19} Hunter told police that Luzmilda had left for work at 6:00 that
morning. Trustin, Terrell, and Tyree woke up at 8:00 a.m. Terrell and Tyree,
ages 8 and 11, left for school at 8:45 a.m. Hunter said that Trustin had been
acting fine when he awoke. Trustin ate some breakfast and started watching
Jurassic Park.




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                               January Term, 2011




       {¶ 20} Hunter left Trustin in the living room, and he went with Trinity to
the basement to do laundry. Shortly thereafter, Hunter heard Trustin running
upstairs. Hunter thought that Trustin was excited about the dinosaurs in the
movie and was rushing to tell him about them.          Hunter then heard Trustin
tumbling down the basement stairs. Hunter said that he heard every step that
Trustin hit as he fell down the stairs. Hunter turned around and saw Trustin at the
bottom of the steps. Trustin was folded over, and his leg was on the bottom step.
       {¶ 21} Hunter said that Trustin was limp and unresponsive.          He took
Trustin upstairs and splashed water on his face. He also attempted to revive
Trustin.   Hunter then called Luzmilda and told her what happened.              She
immediately came home and called 911.
       {¶ 22} As the interview progressed, Detective Wiggington told Hunter that
the attending physician did not think that Trustin’s injuries were consistent with a
fall down the steps. Hunter replied that he did not have “an answer to that.”
Hunter stated that what happened was simply an accident. Hunter said that the
only thing he could have done differently was to remain upstairs or shut the
basement door when he did the laundry.
       {¶ 23} Hunter told investigators that nothing else happened to Trustin
before the fall. He stated that Trustin had been fine the previous evening and that
Trustin had slept with his mother. Hunter said that he would never hurt a child.
He also stated that he did not injure Trustin by shaking him.            However,
investigators did not ask Hunter about the anal tear during the interview, and
nothing was mentioned about it.
       {¶ 24} On January 20, 2006, Barbara Mirlenbrink, a criminalist with the
Cincinnati police department, went to Trustin’s home to collect evidence. She
found no evidence of blood or anything of evidentiary value on the basement
stairs or elsewhere in the house. Mirlenbrink stated that there were 11 carpeted
steps leading from the kitchen to the basement floor. The distance from the top of



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the stairs to the bottom of the steps was 11 feet, two inches. She also examined
the washer and dryer in the basement. She found that the washer was empty, and
clothing was on top of the dryer.
       {¶ 25} On January 27, 2006, Mirlenbrink returned to Trustin’s home and
looked for sharp objects that might have been inserted into Trustin’s anus.
Mirlenbrink collected two Tiki torches and a tire gauge. Subsequent forensic
testing of these items disclosed nothing of evidentiary value. But Mirlenbrink
stated that blood was found on the underwear that Trustin had been wearing.
       {¶ 26} On January 21, 2006, CT scans showed that Trustin was brain
dead. On January 22, 2006, Dr. Mona Stephens, the Hamilton County deputy
coroner, conducted the autopsy on Trustin. Her examination found two separate
areas of broad impact on Trustin’s head. The brain itself was very swollen and
had a subarachnoid hemorrhage. Trustin also suffered a serious neck injury. Dr.
Stephen stated that the cartilage had been pulled loose from the thoracic vertebra.
       {¶ 27} Dr. Stephens stated that the two distinct impact sites show that
something had struck Trustin in the head or his body had been slammed against
something. She stated, “[I]f he were struck in the head, it would have to be a
blow such that the neck would then travel in a sharp fashion and * * * [would
require] a major amount of force.” Alternatively, Dr. Stephens said that “if he
were picked up and held by the torso or below and hit against something, that
would be an easier injury to produce * * * because there is more movement
associated with that to pop that disk loose from the spine bone.”
       {¶ 28} Dr. Stephens found a 1.9 centimeter laceration of Trustin’s anus.
There was a hemorrhage along the rectum’s lining and a hemorrhage going into
both sides of the pelvis. There were also three areas of perforation of the rectal
mucosa. Dr. Stephens stated that these perforations “would be similar to what
you could produce with something like a pencil, jammed with a pencil or




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something sharp like that, or could even be from an angled insertion of
something.”
        {¶ 29} Dr. Stephens concluded, “[D]iffuse brain injury due to blunt
impact/shaking injuries to the head [is] the cause of death. The manner of death is
homicide.” She stated that Trustin’s injuries were not consistent with a fall down
the steps. Dr. Stephens also testified, “The only way I can conceive of this being
partially caused by a fall down 11 carpeted steps is if he had fallen off the side of
the stairs and landed on his head twice, and that still wouldn’t have explained the
anal injuries.”
                                The Defense Case
        {¶ 30} The defense presented no trial-phase witnesses.         However, the
defense introduced two exhibits. Defense exhibit No. 1 is the physician’s report,
signed by Dr. Makoroff, that documented Trustin’s hospital care on January 19,
2006.    Trial counsel used this report during his cross-examination of Dr.
Makoroff.
        {¶ 31} Defense exhibit No. 2 is a medical study completed by M.G.F.
Gilliland, entitled Interval Duration Between Injury and Severe Symptoms in
Nonaccidental Head Trauma in Infants and Young Children.               Trial counsel
referred to this study during his cross-examination of Dr. Stephens.
                                   Case History
        {¶ 32} On the day of the autopsy, Hunter was arrested. A week later, he
was indicted on three counts.      In Count One, Hunter was charged with the
aggravated murder of Trustin, a child under the age of 13. This count contained
two death-penalty specifications.       Specification One charged Hunter with
aggravated murder while committing or attempting to commit rape, R.C.
2929.04(A)(7). Specification Two charged Hunter with the aggravated murder of
a child under the age of 13, R.C. 2929.04(A)(9).




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        {¶ 33} In Count Two, Hunter was charged with raping Trustin, and Count
Three charged Hunter with child endangerment.
        {¶ 34} Hunter pleaded not guilty to all charges. However, a three-judge
panel found Hunter guilty of all charges and sentenced him to death. Hunter was
also sentenced to life in prison without parole for rape and eight years’
imprisonment for child endangerment. The sentences on all counts were ordered
to run consecutively.
                                 Issues on Appeal
        {¶ 35} Ineffective assistance of counsel. In proposition of law I, Hunter
argues that his counsel provided ineffective assistance of counsel during both
phases of the trial.
        {¶ 36} 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 (1984), 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d
373, paragraph two of the syllabus.
        {¶ 37} As an initial matter, Hunter argues that trial counsel’s performance
must be judged by the standards set forth in the American Bar Association
(“ABA”) Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases (Rev.Ed.2003). The stated objective of the guidelines is to
“set forth a national standard of practice for the defense of capital cases in order
to ensure high quality legal representation for all persons facing the possible
imposition or execution of a death sentence by any jurisdiction.” Guideline
1.1(A). To this end, the ABA guidelines present a detailed prescription for the
legal representation of capital defendants.
        {¶ 38} Despite this claim, Hunter has failed to specify the provisions of
the ABA guidelines that trial counsel violated in representing him.




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       {¶ 39} Moreover, the Supreme Court has held that the ABA guidelines are
“only guides” to what reasonableness means, not its definition. Strickland, 466
U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. In Bobby v. Van Hook (2009),
__U.S.__, 130 S.Ct. 13, 175 L.Ed.2d 255, the Supreme Court reversed a Sixth
Circuit Court of Appeals opinion that relied on the ABA guidelines to grant a
capital defendant relief on the grounds that his lawyers had performed deficiently
in investigating and presenting mitigating evidence.          The Supreme Court
criticized the Sixth Circuit for treating the guidelines “ not merely as evidence of
what reasonably diligent attorneys would do, but as inexorable commands with
which all capital defense counsel ‘must fully comply.’ ” Id. at ___, 130 S.Ct. at
17, 175 L.Ed.2d 255, quoting Van Hook v. Anderson (C.A.6, 2009), 560 F.3d 523,
526. The Supreme Court continued, “ ‘[W]hile States are free to impose whatever
specific rules they see fit to ensure that criminal defendants are well represented,
we have held that the Federal Constitution imposes one general requirement: that
counsel make objectively reasonable choices.’ ”         Id., quoting Roe v. Flores-
Ortega (2000), 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985.
       {¶ 40} Accordingly, trial counsel’s performance is reviewed under the
two-pronged Strickland analysis.         We now address Hunter’s assertions of
ineffective assistance of counsel.
       {¶ 41} 1. Pending charges against trial counsel. Hunter argues that he
was denied effective assistance of counsel because Clyde Bennett II, his retained
counsel, was facing criminal charges in federal court while he represented Hunter.
       {¶ 42} On February 5, 2007, just prior to the beginning of trial, Hunter
retained Bennett, an attorney with Dinsmore & Shohl in Cincinnati, as his new
counsel, and his appointed counsel were dismissed. Bennett represented Hunter
during both phases of the trial.
       {¶ 43} Approximately two months after Hunter was sentenced to death,
Bennett was convicted in federal court for the offense of unlawfully structuring



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financial transactions. Subsequently, Bennett was sentenced to 24 months in
prison and a $4,000 fine.
       {¶ 44} Nothing about Bennett’s pending charges was mentioned by any of
the parties during Hunter’s trial. Hunter also does not mention when he learned
that Bennett was facing charges in federal court. Nonetheless, Hunter asserts,
“[W]e now know that * * * Bennett was desperate for cash, and not inclined to
tell defendant-appellant’s family that he was distracted by his own issues, and
unable to go forward effectively.”
       {¶ 45} Hunter argues that Bennett failed to get involved in his case from
the onset of law enforcement’s focus on Hunter. Hunter argues that this failure
occurred because counsel was distracted by the charges pending against him.
However, this ineffectiveness claim lacks merit because Bennett was not retained
to represent Hunter until shortly before his scheduled trial date. Thus, Bennett
could not have become involved in assisting Hunter earlier.           In any event,
Bennett’s legal problems relating to pending charges do not establish ineffective
assistance of counsel. See State v. Smith (Minn.1991), 476 N.W.2d 511, 516;
State v. Williams (1989), 52 Ohio App.3d 19, 556 N.E.2d 221, paragraph two of
the syllabus (“[p]ending criminal charges against an attorney are, without more,
insufficient to support a claim of ineffective assistance of counsel* * *”).
       {¶ 46} Likewise, Hunter’s assertions that counsel’s representation was
tainted because Bennett was “desperate for cash” and was “not inclined” to
disclose that he was distracted by his own issues are speculative. Nothing in the
record before us speaks to federal investigations of Bennett or to their alleged
effect on Bennett’s representation of Hunter. “A reviewing court cannot add
matter to the record before it, which was not a part of the trial court’s
proceedings, and then decide the appeal on the basis of the new matter.” State v.
Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one
of the syllabus (reversing the judgment of a court of appeals that had considered,




                                         10
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in an appeal from a postconviction proceeding, a transcript that had not been
before the trial court in the proceeding that was appealed). Thus, Hunter’s claims
about his counsel’s motivation and actions provide no support for his present
claims.
          {¶ 47} In sum, Hunter’s ineffectiveness claim fails to satisfy the two-
pronged Strickland analysis.      Hunter has failed to demonstrate that counsel
provided deficient performance because he was facing unrelated criminal charges
in federal court. Hunter has also failed to demonstrate that the result of his trial
would have been different if trial counsel had not been facing these charges.
          {¶ 48} 2. Jury waiver. Hunter claims that his counsel was ineffective
because he advised Hunter to waive a jury trial without sharing with him
“statistical data” discrediting the wisdom of this decision. Hunter states that if his
case had been tried before a jury, he would have had a fighting chance during
both phases of the trial.
          {¶ 49} A jury waiver must be voluntary, knowing, and intelligent.
Crim.R. 23; State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810
N.E.2d 927, ¶ 37. If the record shows a jury waiver, the conviction will not be set
aside except on a plain showing that the defendant’s waiver was not freely and
intelligently made. Id. Moreover, a written waiver is presumptively voluntary,
knowing, and intelligent. Id.
          {¶ 50} Nothing in the record suggests that Hunter’s jury waiver was
involuntary.    Hunter submitted a signed jury waiver.        Before the trial court
accepted his jury waiver, Hunter assured the court that his waiver was voluntarily
made. Trial counsel also informed the court, “[T]he issue of waiving the jury in
this case has been discussed at length with defense counsel and Mr. Hunter, my
client. This is not the first day or the first time that this issue has been brought to
his attention. We have discussed this in detail for a week, so this is not a fly-by-




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night decision, and it’s well thought out and something we thought about as a
defendant and counsel.”
        {¶ 51} Nonetheless, Hunter argues that his waiver was not voluntary,
because, he says, virtually all experts agree that counsel’s advice to waive a jury
in a capital case is presumptively malpractice. Hunter contends that his waiver
forfeited the advantage of a jury trial: that a single juror can block a death
recommendation.
        {¶ 52} Hunter cites no authority in support of his claims that he bore an
increased risk of being sentenced to death by a three-judge panel. Moreover, any
one of the three judges alone could have prevented the imposition of the death
penalty. See R.C. 2929.03(D)(3).
        {¶ 53} Additionally, trial counsel provided a reasonable explanation for
proceeding with a three-judge panel rather than a jury. During final argument,
trial counsel argued:
        {¶ 54} “[T]his case was not tried to a jury because lay people in general
don’t have the capacity to allow the law to transcend emotion, passion, rhetoric,
provocation from horrific, egregious, heinous crime that actually was committed.
But I believe that as jurists, officers of the court, has the ability to apply the law to
the facts of this case, notwithstanding the horrific, heinous injury and death to a
child. And I submit, based on the evidence adduced at the trial of this matter, if
you do that, he should be acquitted of aggravated murder and rape charges.”
        {¶ 55} The fact that Hunter voluntarily waived his right to a jury does not
establish ineffective assistance of counsel.           Neither does trial counsel’s
encouragement that Hunter seek a three-judge panel. Under the circumstances,
this appears to have been a reasonable tactical decision. Indeed, trial counsel may
have concluded that Hunter should proceed with a three-judge panel instead of a
jury because of the horrific nature of the charges involving the death of a three-




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year-old child.    Thus, Hunter has failed to establish that his counsel was
ineffective.
       {¶ 56} 3. Requesting a continuance. Hunter argues that his counsel was
ineffective because counsel requested a continuance to prepare for the penalty-
phase proceedings.
       {¶ 57} On June 15, 2007, after the panel returned its verdict, Hunter’s trial
counsel requested a continuance until July 19, 2007, to conduct the mitigation
hearing. That request was granted.
       {¶ 58} On July 3, 2007, trial counsel submitted a request for additional
time to prepare for mitigation. Trial counsel noted that “the previously hired
mitigation specialist is no longer available and no longer works in this field. The
Defendant is currently conducting mitigation work on his own behalf.” On July
19, 2007, the panel granted a continuance until September 5, 2007.
       {¶ 59} Hunter fails to explain how counsel was ineffective because he
requested a continuance to prepare for mitigation. Hunter retained Bennett to
represent him just before his trial was to begin. Hunter should have known that
trial counsel would need additional time to prepare for the penalty-phase
proceedings should he be found guilty of the capital specifications.        Indeed,
counsel would have provided ineffective assistance if he knew that he was
unprepared and failed to request a continuance. Hunter has also failed to explain
how he was prejudiced by counsel’s request. Accordingly, this ineffectiveness
claim also lacks merit.
       {¶ 60} 4. Failure to utilize a second counsel, a defense investigator,
and expert witnesses.      Hunter argues that his retained counsel violated the
principle of “team defense.” First, he argues that trial counsel was ineffective by
failing to proceed to trial without the assistance of a second lawyer.
       {¶ 61} Sup.R. 20(II)(A), titled “Appointment of counsel for indigent
defendants in capital cases,” provides that “at least” two attorneys (with death-



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penalty qualifications and experience) shall be appointed by the court to represent
an indigent defendant charged with capital murder.1 However, Sup.R. 20(I)(B)
states that these rules apply “only in cases where the defendant is indigent and
counsel is not privately retained by or for the defendant.” Sup.R. 20(I)(C) also
provides: “If the defendant engages one privately retained attorney, the court shall
not appoint a second attorney pursuant to this rule.”
        {¶ 62} Hunter chose to retain private counsel. When that decision was
made, Hunter told the court that he was satisfied that Bennett was now his
counsel. Hunter also acknowledged that his two appointed counsel would no
longer represent him after he retained Bennett.
        {¶ 63} Hunter has the burden of demonstrating that his counsel rendered
ineffective assistance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d
674; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62.
Hunter has failed to meet this burden. His generalized claim fails to specify how
Bennett’s trial performance was deficient because of his failure to use the
assistance of second counsel. Hunter also fails to explain how he was prejudiced
by such absence. Accordingly, we reject this claim.
        {¶ 64} Second, Hunter argues that counsel was ineffective by failing to
proceed with an independent defense investigator during both phases of trial. The
record shows that appointed counsel hired Martha Phillips, a mitigation specialist,
and Dr. Cyma Khalily, a psychiatrist, to consider Hunter’s circumstances, and
Robert Cantou, M.D., to review Trustin’s medical records. The court authorized
their fees. Retained counsel also requested a mitigation expert. Subsequently,
retained counsel obtained two continuances to prepare for mitigation. During the
first requested continuance, retained counsel mentioned that on July 19 (the date
of the scheduled mitigation hearing), “there will be a mitigation [sic] Martha

1. These are the Rules of Superintendence currently in effect. The Rules of Superintendence in
effect in 2007 have been renumbered but were not changed substantively.




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Phillips.” In requesting the later continuance, counsel noted that the mitigation
specialist “is no longer available and no longer works in this field. The Defendant
is currently conducting mitigation work on his own behalf.”
         {¶ 65} Hunter cites nothing in the record to show that retained counsel
conducted an inadequate investigation. The record does not show the extent of
counsel’s investigation or whether he relied on work completed by the experts
hired by appointed counsel. We “cannot infer a defense failure to investigate
from a silent record.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, ¶ 244. Moreover, trial counsel called many family members and
others during the penalty phase who provided detailed information about Hunter’s
background and family life. Thus, the record fails to support this ineffectiveness
claim.
         {¶ 66} Finally, Hunter argues that his counsel was ineffective by relying
exclusively on his cross-examination skills to undermine the testimony of the
state’s expert witnesses. “As an initial matter, the failure to call an expert and
instead rely on cross-examination does not constitute ineffective assistance of
counsel.” State v. Nicholas (1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225,
citing State v. Thompson (1987), 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407.
Hunter’s argument that defense experts were necessary to impeach the testimony
of the state’s experts is purely speculative. Hunter fails to identify the expert
witnesses who should have been called or what they would have said. Thus, trial
counsel’s decision to rely on cross-examination appears to have been a legitimate
“tactical decision.” See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823
N.E.2d 836, ¶ 97. We also reject this claim.
         {¶ 67} 5. Failure to call a psychologist or psychiatrist. Hunter argues
that his counsel was ineffective by failing to employ a psychologist or
psychiatrist. Hunter asserts that at a minimum, counsel should have had him
evaluated to determine his potential for future dangerousness if given a life



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sentence. Hunter contends that studies indicate that it is highly unlikely that a
rapist and killer of a young child would ever show aggression against other
inmates or guards.
       {¶ 68} As previously discussed, appointed counsel obtained the services of
a psychiatrist.   The record does not indicate the extent of the psychiatrist’s
evaluation of the defendant or retained counsel’s use of such assistance. Again,
we cannot infer counsel’s failure to investigate from a silent record; the burden of
demonstrating ineffective assistance is on Hunter. See State v. Were, 118 Ohio
St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244. Thus, Hunter has failed to
demonstrate that counsel was deficient. Moreover, Hunter has failed to show that
counsel was deficient by failing to present testimony that he lacked the potential
for future dangerousness. There is no evidence to suggest that the psychiatrist
would have reached that conclusion. See State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 118.
       {¶ 69} 6. Failure to present an affirmative defense during the penalty
phase and other instances of deficient performance. First, Hunter argues that
trial counsel provided deficient representation by failing to develop an affirmative
defense for sparing his life. This claim lacks merit.
       {¶ 70} Trial counsel presented extensive mitigating evidence during the
penalty phase. Five family members and two others testified about Hunter’s
background and family life. Leevell Hunter, the defendant’s father, indicated that
Hunter had had an alcohol-abuse problem and had been involved with drugs. The
witnesses also expressed their hope that Hunter would receive a life sentence and
explained that a death sentence would have a horrible impact on the family. In
addition, Hunter presented a detailed, unsworn statement. Finally, trial counsel’s
final argument raised residual doubt as an issue and set forth all the mitigating
factors favoring a life sentence.




                                         16
                               January Term, 2011




       {¶ 71} As previously discussed, nothing in the record shows that trial
counsel did not conduct an adequate investigation. Appointed counsel obtained a
mitigation specialist and a psychiatrist to evaluate Hunter and a doctor to review
Trustin’s medical records. Retained counsel also obtained two continuances to
prepare for the penalty phase. Beyond that, the record does not show the extent of
counsel’s investigation. Thus, based on the record before this court, Hunter has
failed to demonstrate that trial counsel performed inadequately in preparing for
mitigation.
       {¶ 72} Hunter cites Dickerson v. Bagley (C.A.6, 2006), 453 F.3d 690, and
Poindexter v. Mitchell (C.A.6, 2006), 454 F.3d 564, in arguing that his counsel’s
performance was inadequate. Dickerson held that counsel provided ineffective
assistance by failing to conduct a complete and thorough mitigation investigation.
Id. at 699. The court determined that counsel did not learn or prove facts about
the defendant’s family, educational, social, or medical history or discover that the
defendant had an IQ of 77, making him borderline mentally retarded. Id. at 691-
692 and 695. The court found that it was much more likely that the sentencer
would have seriously contemplated a life sentence based on reduced culpability if
it had been presented this evidence. Id. at 699.
       {¶ 73} Unlike in Dickerson, nothing in the record shows that trial counsel
completed an inadequate investigation into Hunter’s background and mental state
in preparing for his mitigation hearing. Thus, Hunter’s reliance on Dickerson is
misplaced.
       {¶ 74} Poindexter is also inapposite. Poindexter held that trial counsel
was ineffective by failing to conduct “virtually any investigation.” Poindexter,
454 F.3d at 578. The court found that counsel had failed to request funds to hire a
psychological or psychiatric expert to evaluate the defendant even though he
exhibited odd behavior. Id. at 579. Counsel had also failed to interview key
family members and friends who could have described the defendant’s



                                         17
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upbringing. Id. The court also noted that defense counsel did not begin to
prepare for mitigation until five days before the penalty phase began.         Id.
Poindexter held that counsel’s failures were prejudicial because the jury was not
presented with a full picture of the defendant’s troubled childhood and could not
therefore accurately assess his moral culpability. Id.
       {¶ 75} Again, Hunter has presented nothing to show that his counsel failed
to conduct an adequate mitigation investigation. Indeed, the record shows that a
psychiatrist was employed, and seven witnesses testified on Hunter’s behalf.
       {¶ 76} Second, Hunter argues that trial counsel provided deficient
performance by failing to object to “other acts” evidence, even though appointed
counsel had filed a pretrial motion to exclude such evidence under Evid.R.
404(B). Initially, Hunter complains about counsel’s failure to object to evidence
about his convictions for selling drugs.
       {¶ 77} At the penalty phase, trial counsel asked Leevell Hunter the
following question:
        {¶ 78} “Q: Okay. What involvement, if any, did Lamont have with drugs,
if you know?
        {¶ 79} “A: I kind of had an idea that he was using, but I didn’t never
confront him * * *.”
        {¶ 80} During cross-examination, the prosecutor asked Leevell about
Hunter’s criminal record for selling drugs:
        {¶ 81} “Q: You said at some point that you had had an idea that your son
was using drugs?
        {¶ 82} “A: Yes.
        {¶ 83} “Q: And in fact he went to the penitentiary two different times for
drugs; isn’t that correct?
        {¶ 84} “A: Yes. Not for use, for selling.
        {¶ 85} “Q: For selling?




                                           18
                               January Term, 2011




       {¶ 86} “A: Yeah.
       {¶ 87} “Q: So at some point you had more than an idea that he
was involved with drugs because he was convicted of two different
felonies and went to prison two different times?
       {¶ 88} “A: Yes, for not using for himself, for selling.”
       {¶ 89} Trial counsel elicited testimony from Leevell that opened the door
to cross-examination about Leevell’s knowledge of Hunter’s drug convictions.
Trial counsel was not ineffective for failing to object to this line of cross-
examination, because the defense may have lacked a basis for objecting.
       {¶ 90} Moreover, trial counsel may have made a tactical decision not to
object to such questioning. See State v. Keith (1997), 79 Ohio St.3d 514, 530,
684 N.E.2d 47. Trial counsel used testimony about Hunter’s drug involvement as
a mitigating factor for the panel’s consideration. During final argument, trial
counsel argued that Hunter’s involvement with “alcohol and drugs * * * is a
mitigating factor and * * * sort of explains * * * his conduct for which he was
convicted” and supports the imposition of a life sentence. Thus, trial counsel may
have reasonably decided not to object to testimony about Hunter’s drug
convictions because it highlighted the seriousness of his drug involvement. See
State v. Gowdy (2000), 88 Ohio St.3d 387, 396-397, 727 N.E.2d 579.
       {¶ 91} Even if trial counsel’s questioning reflected deficient performance,
Hunter has failed to establish prejudice under the Strickland test. Testimony
about the two drug convictions was of minor significance, given the compelling
evidence of the aggravated murder and rape charges that Hunter was found guilty
of committing. Moreover, it is presumed that the three-judge panel “considered
only the relevant, material, and competent evidence in arriving at its judgment.”
State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 239 N.E.2d 65.
       {¶ 92} Hunter also complains that his counsel opened the door to
testimony about domestic violence.      During direct examination, Tamara Kay



                                        19
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Mitchell, Hunter’s ex-wife, testified that Hunter is not an abusive person and was
never abusive towards children. But Mitchell acknowledged that she had had a
domestic-violence case with Hunter 15 years ago. She explained, “I mean, we
were young. Things happen. He’s not an abusive person though.”
       {¶ 93} On cross-examination, the prosecutor asked Mitchell further
questions about Hunter’s domestic violence.        She stated, “[W]e had three
incidents where things happened and they got out of control and, yes, the police
were called. As far as him being violent, no.”
       {¶ 94} Trial counsel was not ineffective by eliciting testimony about
Hunter’s history of domestic violence with Mitchell. Mitchell’s testimony that
Hunter did not abuse children was important mitigating evidence. Counsel could
legitimately decide to present such testimony, even though derogatory
information about Hunter was also disclosed as a result. See State v. Elmore, 111
Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 117.
       {¶ 95} Third, Hunter argues that trial counsel was ineffective by failing to
object to unrecorded sidebar discussions         Appointed and retained counsel
requested that all sidebars be recorded, and the motion was granted “as to
substantive issues.”       Nonetheless, counsel failed to object to two sidebar
conferences held off the record. The trial court afterwards stated on the record
that both sidebars addressed only scheduling issues.        Thus, Hunter cannot
demonstrate that counsel’s failure to object was prejudicial, since the unrecorded
proceedings did not deal with substantial and important legal matters. See State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 136.
       {¶ 96} Finally, Hunter argues that trial counsel was ineffective by failing
to force Dr. Stephens, the deputy coroner, and Dr. Makoroff, a pediatrician, to set
forth their credentials.     Yet the record shows that both of these witnesses
discussed their credentials before testifying.      Dr. Stephens set forth her
educational background and work experience and described her duties as a




                                         20
                                   January Term, 2011




pathologist.    Similarly, Dr. Makoroff discussed her educational background,
mentioned her work experience, and described her duties.
        {¶ 97} 7. Failure to seek a negotiated plea for a lesser sentence. Hunter
argues that his counsel had an affirmative duty to seek a negotiated plea for a
sentence other than death. But the record does not reflect whether trial counsel
attempted to negotiate such an agreement. Accordingly, Hunter has not met his
burden of demonstrating that counsel rendered ineffective assistance.
        {¶ 98} Based on the foregoing, we overrule proposition I.
        {¶ 99} Lack of capitally certified counsel.     In proposition of law II,
Hunter argues that he was denied effective assistance of counsel because his
counsel was not certified under Sup.R. 20.
        {¶ 100} Sup.R. 20 requires that counsel appointed to represent indigent
defendants in capital cases have certain qualifications. Hunter argues that trial
counsel was ineffective because there is no indication that he was certified under
this rule. But Hunter chose to retain private counsel, and Sup.R. 20 certification
does not apply and was not required. Sup.R.20(I)(B). In State v. Keith, 79 Ohio
St.3d at 534, 684 N.E.2d 47, this court held that it would not “impose a rule that
creates a presumption of ineffective assistance of counsel where counsel has been
retained by or for a defendant and is not qualified under C.P.Sup.R. 65.”2 See
also State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,
¶ 142. Accordingly we overrule proposition II.
        {¶ 101} Failure to call a mitigation expert. In proposition of law III,
Hunter argues that his counsel was ineffective by failing to call the defense
mitigation expert as a penalty-phase witness.
        {¶ 102} Hunter’s appointed counsel hired Martha Phillips as the defense
mitigation specialist. At the completion of the guilt-phase proceedings, Hunter’s
retained counsel obtained a continuance until July 19, 2007, to prepare for the

2. Sup.R. 20 was formerly C.P.Sup.R. 65.




                                           21
                             SUPREME COURT OF OHIO




penalty-phase proceedings. Trial counsel stated, “On the 19th there will be a
mitigation [sic] Martha Phillips.”
       {¶ 103} On July 3, 2007, trial counsel requested an additional continuance
for more preparation time. Counsel stated, “[T]he Defendant’s previously hired
mitigation specialist is no longer available and no longer works in this field. The
Defendant is currently conducting mitigation work on his own behalf.”            A
continuance was granted until September 5, 2007. On that date, the penalty-phase
proceedings were conducted, and seven witnesses testified on behalf of the
defendant.
       {¶ 104} An attorney who fails to conduct a reasonable investigation into a
defendant’s history and background provides ineffective assistance.       State v.
Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 60, citing
Wiggins v. Smith (2003), 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471.
However, Hunter has the burden of demonstrating that his counsel rendered
ineffective assistance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d
674; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62.
       {¶ 105} It appears that Martha Phillips was not called as a defense
witness, because she discontinued working as the mitigation specialist. Nothing
shows what testimony Phillips would have provided if she had been called as a
witness. Thus, Hunter has failed to demonstrate that trial counsel was deficient
by not calling her as a witness. See State v. Davis, 116 Ohio St.3d 404, 2008-
Ohio-2, 880 N.E.2d 31, ¶ 350.
       {¶ 106} Trial counsel was fully capable of conducting a satisfactory
investigation into Hunter’s history and background after Phillips became
unavailable.   Hunter cites nothing in the record to show that his counsel
conducted a less than adequate investigation. Moreover, trial counsel would have
had access to mitigating evidence that the defense collected before he was
retained.




                                        22
                                January Term, 2011




       {¶ 107} Based on the foregoing, proposition III is rejected.
       {¶ 108} Other-acts evidence. In proposition of law IV, Hunter argues that
the admission of evidence that he had previously abused Trustin was improper
“other acts” evidence.
       {¶ 109} Over defense objection, Dr. Makoroff testified that on January 30,
2004, she treated Trustin in the emergency room for a broken tibia. Hunter
informed medical personnel that the injury had occurred when he was holding
Trustin and fell on the steps. Hunter provided a similar explanation in his taped
statement on January 19, 2006. Additionally, Wilma Forte testified that Hunter
had told her that Trustin was injured when Hunter “was carrying [Trustin] up the
steps, and he stepped on a toy and fell with Trustin.”
       {¶ 110} Over objection, Dr. Makoroff also testified that on June 9, 2004,
she had treated Trustin in the emergency room for swollen lips, a scratch in his
ear canal, bruising on both sides of his ears, a swollen penis, and an abrasion at
the base of his penis. X-rays also showed that Trustin had multiple fractures on a
hand and a foot. Dr. Makoroff stated, “[M]y impression was that this was a case
of definite child abuse.”
       {¶ 111} Over objection, Tiffany Bradbury testified that on June 9, 2004,
she interviewed Hunter about Trustin’s injuries. Hunter denied that he had hurt
Trustin. Hunter said that he had been caring for Trustin after Luzmilda left home
that morning. Hunter stated that he had tripped while he was walking downstairs
with Trustin, and “maybe” Trustin had been injured then.
       {¶ 112} Defense counsel argued that evidence about the January and June
2004 incidents was inadmissible, because it was irrelevant and prejudicial. But
the panel overruled the defense objections and admitted the evidence under
Evid.R. 404(B). It did, however, exclude evidence of Hunter’s criminal record.
       {¶ 113} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove” a defendant’s criminal propensity. “It may,



                                         23
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however, be admissible * * * [to show] motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” “The admission or
exclusion of relevant evidence rests within the sound discretion of the trial court.”
State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph
two of the syllabus.
       {¶ 114} The panel did not abuse its discretion in admitting evidence of the
January and June 2004 incidents. The January and June 2004 incidents were
relevant in rebutting Hunter’s claim that Trustin died in an accidental fall. See
State v. Burson (1974), 38 Ohio St.2d 157, 159, 67 O.O.2d 174, 311 N.E.2d 526.
The earlier incidents were eerily similar to the episode underlying the charged
offense. Hunter claimed that Trustin had been injured in an accidental fall on the
two occasions that he had been brought to the emergency room in 2004. Such
evidence was particularly relevant because it showed that Hunter’s claim that
Trustin died during an accidental fall was probably untrue.          Based on this
evidence, the panel could reasonably infer that Hunter acted purposefully in
killing Trustin. See State v. Banks (1992), 78 Ohio App.3d 206, 212, 604 N.E.2d
219; State v. Patton (Jan. 21, 1992), 12th Dist. No. CA91-06-102, 1992 WL 9534,
*5; see    also   Imwinkelried, Uncharged        Misconduct Evidence,        Vol.   I
(Rev.Ed.2001) 16-22, Section 5:06.
       {¶ 115} Finally, the fact that the 2004 acts differ in some detail from the
charged offenses does not affect the admissibility of the other-acts evidence.
Such differences go to weight, not admissibility. See State v. Jamison (1990), 49
Ohio St.3d 182, 187, 552 N.E.2d 180.
       {¶ 116} Based on the foregoing, proposition IV is overruled.
       {¶ 117} Sufficiency and manifest weight of the evidence. In proposition
of law VIII, Hunter argues that there was insufficient evidence to convict him of
the counts and specifications. In proposition of law IX, Hunter argues that the
verdict is against the manifest weight of the evidence.




                                         24
                               January Term, 2011




       {¶ 118} A claim of insufficient evidence invokes a due process concern
and raises the question whether the evidence is legally sufficient to support the
verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380, 386,
678 N.E.2d 541.      In reviewing such a challenge, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia
(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. “[T]he weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of the
facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d,
212, paragraph one of the syllabus.
       {¶ 119} A claim that a verdict is against the manifest weight of the
evidence involves a different test. “ ‘The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary power to
grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.’ ” Thompkins, at 387, quoting
State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717.
       {¶ 120} Hunter’s sufficiency claims lack merit. Wilma Forte’s and Amber
White’s testimony, Hunter’s statements to investigators and other individuals,
medical testimony, and the autopsy results were sufficient to establish Hunter’s
guilt. The evidence shows that on the morning of January 19, 2006, Trustin died
from severe head injuries while he was under Hunter’s care and supervision. His
girlfriend, Luzmilda, had left earlier that morning to go to work. Later that
morning, Forte had talked to Trustin on the phone, and he had said that he was



                                        25
                             SUPREME COURT OF OHIO




fine and was watching a movie. Two hours later, Hunter called Luzmilda and told
her that Trustin had been injured.
       {¶ 121} EMTs arriving at the home found that Trustin was paralyzed and
unresponsive and rushed him to the hospital. Hunter told medical personnel and
investigators that Trustin was injured when he accidentally fell down the
basement stairs. Yet Dr. Makoroff testified that Trustin had suffered severe brain
injuries that were inconsistent with a fall down 11 carpeted stairs. Examination
also showed that Trustin had a deep anal tear that could have been just hours old.
       {¶ 122} Following Trustin’s death, Dr. Stephens conducted the autopsy
and determined that his cause of death was a “diffuse brain injury due to blunt
impact/shaking injuries to the head.” Trustin suffered two separate areas of broad
impact on the head. Dr. Stephens testified that the two impact sites show that
either something struck Trustin in the head or his body had been struck against
something. Dr. Stephens also found a 1.9-centimeter laceration of the anus and
three areas of perforation of the rectal mucosa. Dr. Stephens stated that the
perforations were caused by the insertion of a sharp object into the rectal area.
       {¶ 123} Evidence was also introduced showing that Trustin had previously
been hurt while under Hunter’s care and supervision. In January 2004, Trustin
had been taken to the emergency room with a broken tibia. Hunter claimed that
these injuries were caused when he was holding Trustin and fell on the stairs. In
June 2004, Trustin was taken to the emergency room again. An examination
showed that Trustin had multiple fractures of a hand and a foot, a swollen and
bruised penis, and other injuries. Hunter told an investigator that these injuries
might have been caused by a fall down the steps.
       {¶ 124} White testified that beginning in 2003, she noticed that Trustin
acted fearful when Hunter was around him. Forte noticed similar behavior. Forte
also testified that on January 17, 2006, Trustin told her that he was “scared of
Lamont. Lamont scared. Lamont hurt Trustin.”




                                         26
                                  January Term, 2011




       {¶ 125} Hunter claims that there is little evidence to show that he
purposefully caused Trustin’s death with prior calculation and design. However,
the three-judge panel found Hunter guilty as the principal offender in the
commission of aggravated murder. He was not found guilty on the theory that he
had been an aider or abettor who had committed the murder with prior calculation
and design.
       {¶ 126} Finally, Hunter claims that he was found guilty because he was
the only adult present and that there are other plausible explanations for Trustin’s
death. Hunter repeatedly told medical personnel and investigators that Trustin
had been injured when he accidentally fell down the stairs. But Dr. Makoroff’s
testimony and the autopsy results refute this claim.
       {¶ 127} Moreover, there is no plausible explanation for Trustin’s anal tear
except that Hunter caused these injuries near the time of Trustin’s death. Dr.
Makoroff’s examination of Trustin showed that he had “acute bleedings meaning
some fresh blood” in his anal area. Dr. Makoroff testified that it “certainly could
have just been hours old because it just kept bleeding as we manipulated it.” Dr.
Makoroff also testified that the anal tear would have been painful. Yet Forte had
talked to Trustin shortly before his death, and Trustin did not complain about
being hurt. Blood was also found on the underwear that Trustin was wearing on
the morning that he was killed.
       {¶ 128} Despite some discrepancies, the panel accepted the testimony of
the state’s witnesses. Furthermore, a review of the entire record shows that the
testimony was neither inherently unreliable nor unbelievable.        We find that
witness testimony, circumstantial evidence, and medical evidence provided
sufficient evidence to prove beyond a reasonable doubt that Hunter is guilty of all
counts and specifications.
       {¶ 129} With respect to Hunter’s manifest-weight challenges, this is not
an “ ‘exceptional case in which the evidence weighs heavily against the



                                          27
                                SUPREME COURT OF OHIO




conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin,
20 Ohio App.3d at 175, 20 OBR 215, 485 N.E.2d 717. We find that the panel
neither lost its way nor created a miscarriage of justice in convicting Hunter of all
counts and specifications.
       {¶ 130} Based on the foregoing, we reject propositions VIII and IX.
       {¶ 131} Denial of multiple defense motions and objections.                 In
proposition of law VII, Hunter argues that the three-judge panel erred in denying
multiple defense motions and that the cumulative effect of these denials
constituted reversible error.
       {¶ 132} State v. DeMarco (1987), 31 Ohio St.3d 191, 31 OBR 390, 509
N.E.2d 1256, 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 instances of trial court error does not individually
constitute cause for reversal. Id. at 196-197. See also State v. Garner (1995), 74
Ohio St.3d 49, 64, 656 N.E.2d 623. But the doctrine of cumulative error is not
applicable to the present case, because there were no multiple errors.
       {¶ 133} Hunter’s claim that the panel erred in denying various defense
motions also lacks merit. First, Hunter argues that the trial court erred in denying
a defense request for disclosure of the state’s rebuttal witnesses.
       {¶ 134} “The criterion for determining whether the state should have
provided the name of a witness called for rebuttal is whether the state reasonably
should have anticipated that it was likely to call the witness, whether during its
case in chief or in rebuttal.” State v. Lorraine (1993), 66 Ohio St.3d 414, 423,
613 N.E.2d 212.
       {¶ 135} Following the defense motion for the names of rebuttal witnesses,
the state responded that it was unable to provide this information without knowing
what the defense might raise at trial that could necessitate the calling of witnesses




                                          28
                               January Term, 2011




on rebuttal. The panel denied the defense motion because the state did not know
who its rebuttal witnesses might be. Based on Lorraine, the trial court did not err
in denying the defense request. Moreover, the state called no rebuttal witnesses.
       {¶ 136} Second, Hunter argues that the panel erred in denying the defense
motion to seal the prosecutor’s file, because the state might have withheld
discoverable evidence that made a difference in counsel’s trial preparation. But
this court has consistently rejected the argument that the trial court was required
to seal the prosecutor’s file because the prosecutor may have withheld exculpatory
evidence. Such a claim is purely speculative. See State v. Hancock, 108 Ohio
St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 64; State v. Hanna, 95 Ohio St.3d
285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 60. Accordingly, the panel did not err
in denying this motion.
       {¶ 137} Third, Hunter argues that the panel erred in denying the defense
motion to prohibit the introduction of victim-impact evidence. Appointed counsel
filed a motion in limine to prohibit victim-impact evidence during both phases of
the trial. The motion was denied.
       {¶ 138} Victim-impact evidence is admissible in certain circumstances.
For example, it is admissible when it is related to the facts attendant to the
offense. See State v. Fautenberry (1995), 72 Ohio St.3d 435, 440, 650 N.E.2d
878. Victim-impact testimony has also been permitted in limited situations in
capital cases when the testimony is not overly emotional or directed to the penalty
to be imposed. See State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 237.
       {¶ 139} Hunter fails to identify any victim-impact evidence that was
improperly presented during his trial. Accordingly, we find no error in denying
these defense motions.




                                        29
                             SUPREME COURT OF OHIO




       {¶ 140} Fourth, Hunter argues that the panel erred in denying defense
motions for a transcript of the grand jury testimony and disclosure of the names of
the grand jury witnesses.
       {¶ 141} “Grand jury proceedings are secret, and an accused is not entitled
to inspect grand jury transcripts either before or during trial unless the ends of
justice require it and there is a showing by the defense that a particularized need
for disclosure exists which outweighs the need for secrecy.” State v. Greer
(1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the
syllabus. A particularized need is established “when the circumstances reveal a
probability that the failure to provide the grand jury testimony will deny the
defendant a fair trial.” State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR
410, 478 N.E.2d 781. Determining whether a particularized need exists is a
matter within the trial court’s discretion. Greer at 148.
       {¶ 142} Hunter claims that he established a particularized need because he
was unable to fully confront his accusers without disclosure of their grand jury
testimony.    But Hunter’s claim that the grand jury testimony might have
contained material evidence or might have aided his cross-examination does not
establish a particularized need. See State v. Webb (1994), 70 Ohio St.3d 325, 337,
638 N.E.2d 1023 (rejecting claim that grand jury testimony might have aided
cross-examination by revealing contradictions). Thus, the panel did not abuse its
discretion in denying the defense motions for grand jury testimony and the
disclosure of the names of grand jury witnesses.
       {¶ 143} Fifth, Hunter argues that several other defense motions were also
improperly denied. Initially, Hunter complains that the panel erred in denying the
defense motion to argue last during the penalty-phase closing arguments. But the
panel committed no error in denying this motion. See State v. Rogers (1985), 17
Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph six of the syllabus (state
has the right to open and close arguments to the jury during penalty phase).




                                         30
                                January Term, 2011




       {¶ 144} Hunter also argues that the panel erred in denying a defense
motion to prohibit the state from listing the nature and circumstances of the
offense as a matter to be considered in mitigation until first raised by the defense.
But no error occurred in denying this motion. See State v. Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 183; State v. Noling, 98 Ohio
St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 101.
       {¶ 145} Next, Hunter argues that the panel erred in denying defense
motions to dismiss the capital specifications because of constitutional and
international-law violations. But, as discussed below in proposition of law V, no
error occurred in denying these motions.
       {¶ 146} Additionally, Hunter argues that the trial court erred in denying
the defense motion to suppress his police statement, because it was obtained in
violation of his constitutional rights. However, Hunter was properly advised of
his Miranda rights and voluntarily waived his rights before talking to police. See
Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
       {¶ 147} During the suppression hearing, Detective Noel testified that she
and Detective Wiggington advised Hunter of his Miranda rights before
questioning him about what happened to Trustin. A notification-of-rights form
was used to advise Hunter of his Miranda rights. Noel testified that Hunter read
each of his rights aloud and then explained what those rights meant. Hunter then
talked to police.
       {¶ 148} Detective Noel also testified that Hunter had appeared mentally
alert, was not under the influence of drugs or alcohol at the time of the interview,
and told investigators that he had completed his GED. Thus, the totality of the
circumstances supports the trial court’s findings that Hunter was properly advised
of his Miranda warnings and voluntarily waived them before talking to the police.
See State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 10-
13.



                                         31
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         {¶ 149} Finally, Hunter argues that the panel erred in denying any and all
oral defense motions and objections made at trial. He also challenges all rulings
granting the state’s motions and objections. Hunter sets forth a list of these
objectionable rulings but fails to provide any explanation to support his argument
that they were erroneous. Nothing shows that these rulings were improper. Thus,
we also reject this argument.
         {¶ 150} Based on the foregoing, proposition VII is overruled.
         {¶ 151} Noncapital sentencing. In proposition of law VI, Hunter argues
that the three-judge panel erred in sentencing him to consecutive sentences for his
noncapital offenses in violation of his federal and state constitutional rights.
         {¶ 152} The panel sentenced Hunter to life without parole for rape in
Count Two and eight years for child endangerment in Count Three. The panel
stated: “And for the record, the sentence[s] on all counts are to run consecutively
to each other, and all sentences imposed are the maximum as provided by law as
of the date of the commission of the offense.” But by failing to object to the
imposition of his consecutive sentences, Hunter forfeited this issue, absent plain
error. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31,
¶ 377.
         {¶ 153} The panel had the authority to impose consecutive sentences on
Hunter. See State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d
582, ¶ 35. Moreover, the imposition of consecutive sentences in this case does
not implicate Sixth Amendment considerations such as those recently addressed
by the United States Supreme Court in Oregon v. Ice (2009), 555 U.S. 160, 129
S.Ct. 711, 172 L.Ed. 2d 517.
         {¶ 154} Nor does the panel’s imposition of consecutive sentences violate
Hunter’s constitutional right to be safe from cruel and unusual punishment. In
State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 1,
this court held that the imposition of an aggregate 134-year prison term on a




                                          32
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defendant did not constitute cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution and Section 9, Article I of
the Ohio Constitution. Hairston stated, “Where none of the individual sentences
imposed on an offender are grossly disproportionate to their respective offenses,
an aggregate prison term resulting from consecutive imposition of those sentences
does not constitute cruel and unusual punishment.” Id. at syllabus.
       {¶ 155} Although Hairston was a noncapital case, the same principle
applies to Hunter’s noncapital sentencing.     None of the individual sentences
imposed on Hunter were grossly disproportionate to its respective offenses. Each
sentence was within the statutory range for each offense.         Accordingly, the
aggregate prison term resulting from the consecutive imposition of those
sentences was not unconstitutional. Proposition VI is rejected.
       {¶ 156} Constitutionality. In proposition of law V, Hunter challenges the
constitutionality of Ohio’s death-penalty statutes.     This claim is summarily
rejected. See State v. Carter (2000), 89 Ohio St.3d 593, 606-608, 734 N.E.2d
345; State v. Steffen (1987), 31 Ohio St.3d 111, 125, 31 OBR 273, 509 N.E.2d
383; State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264,
paragraph one of the syllabus.
       {¶ 157} Hunter also argues that Ohio’s death-penalty statutes violate
international law and agreements to which the United States is a party. We have
rejected similar arguments. See State v. Issa (2001), 93 Ohio St.3d 49, 69, 752
N.E.2d 904.
       {¶ 158} Cumulative error. In proposition of law X, Hunter makes the
generalized claim that the cumulative effect of errors in his trial necessitates
reversal of his conviction and death sentence. But Hunter received a fair trial and
a fair sentencing determination, and no errors occurred that prejudiced his
substantial rights. See State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855
N.E.2d 48, ¶ 177. Proposition X is rejected.



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                       Independent Sentence Evaluation
       {¶ 159} Having considered Hunter’s propositions of law, we must now
independently review Hunter’s death sentence for appropriateness and
proportionality as R.C. 2929.05(A) requires.
       {¶ 160} Aggravating circumstances.       Hunter was charged with and
convicted of the capital specifications of R.C. 2929.04(A)(7) and 2929.04(A)(9).
The evidence at trial establishes beyond a reasonable doubt that Hunter murdered
Trustin Blue while committing or attempting to commit rape, R.C. 2929.04(A)(7).
Hunter was also properly convicted of murder of a child under the age of 13, R.C.
2929.04(A)(9).
       {¶ 161} Mitigating evidence. Against these aggravating circumstances,
we are called upon to weigh the mitigating factors contained in R.C. 2929.04(B).
Hunter presented seven mitigation witnesses and offered an unsworn statement,
which his attorney read into the record.
       {¶ 162} Harriet Elizabeth Hunter, the defendant’s mother, testified that
Hunter was born and raised in Cincinnati. Hunter had a normal childhood and
was “just like any other kid.” Hunter attended Withrow High School. Hunter was
a very supportive son and helped his parents by performing chores and other work
around their home. Harriet had a good relationship with Hunter and characterized
him as a “loving son and a caring son.”
       {¶ 163} Harriet was aware that Hunter was involved in drug use, but she
did not know the type of drugs he was using. She indicated that Hunter’s drug
use was not prevalent and did not have an impact upon his conduct. But Harriet
knew that Hunter was an alcoholic and drank a lot with her husband.
       {¶ 164} Hunter has four biological children. Harriet stated, “He was a
good father to his kids.” He “worked, took care of them and did things with
them.” Hunter also had a good relationship with his brothers and sisters and all
his nieces and nephews. He spent time with his nieces and nephews by taking




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them to shows and going fishing.          Hunter’s support benefitted the children
because “[i]f they needed anything they would come to him.”
          {¶ 165} Harriet stated that Hunter was devoted to his children and his
extended family: “[H]e loved us.” She also stated, “[The family] loved him. All
of us loved him. The children love him to death.” Harriet also testified that she
has never seen Hunter lose his temper, become violent, or abuse a child.
          {¶ 166} Although Harriet was not around Trustin very often, she discussed
Hunter’s relationship with Trustin. Harriet testified that “at first Trustin cried
when he was around him, but they had a good relationship. They would give each
other high fives and stuff like that. * * * He could talk to him and Trustin would
talk to him.”
          {¶ 167} Harriet has talked to Hunter since the charges were brought in this
case. She believes that Hunter can be rehabilitated and become a law-abiding and
productive citizen. Harriet stated that Hunter is “so sorry that Trustin had died.”
Finally, Harriet testified that Hunter’s execution would have a “[t]errible” impact
on her.
          {¶ 168} Leevell Hunter, the defendant’s father, described Hunter as a
“typical little boy” when he was growing up. Leevell stated that Hunter was not a
problem as a child and was very dependable.             He helped his parents by
performing chores, cutting the grass, and doing other things around the house.
          {¶ 169} Leevell had suspected that Hunter was using drugs but never
confronted him about it. Leevell and Hunter drank alcohol together. Leevell
stated, “We used to swap 12 packs, me and him, and booze on the side, Jack
Daniels.”
          {¶ 170} Leevell stated that Trustin had come to their home a few times.
He described Hunter’s involvement with Trustin: “Whatever he need was [sic] he
took care of him. He didn’t deny him of it and he would get food of mine that I




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had around the kitchen and in the basement * * * and Lamont would give it to
him.” Leevell has never known Hunter to be violent or threatening.
       {¶ 171} Leevell has talked with Hunter about what happened to Trustin
since the charges were brought. Leevell said, “I think he [Hunter] is like I am,
sorry it happened. Not that he was involved in it, but it happened and he was
around when it happened.”
       {¶ 172} Leevell loves his son and does not want to see him executed. If
Hunter were sentenced to death, Leevell stated, “[i]t would hurt me deeply.”
       {¶ 173} During cross-examination, Leevell acknowledged that Hunter had
been convicted twice for selling drugs. Leevell was also aware that Hunter had
been convicted of domestic violence against Tamara Mitchell.
       {¶ 174} Theresa Tomlin and Hunter had had a romantic relationship
between 1987 and 1989. They had one daughter, Ashley Hunter. During their
relationship, Hunter was around Tomlin’s two-year-old son from a previous
relationship. Tomlin stated that Hunter was very good with her son and never
abused him. She stated that Hunter “treated [her] kid just like he was his own.”
       {¶ 175} Tomlin has remained friends with Hunter. She states that he is a
very “loving and caring person.” Tomlin stated that Hunter has “always been
great with [their] daughter.   He is always there for her any time she needs
anything and also with his ex-wife’s kids he is always there for them.” He
provides them with advice and counsel, takes them to family functions, and takes
them out to eat.
       {¶ 176} Tomlin describes Hunter as a “great father.” Tomlin would not
“think twice” about allowing Hunter to be around her own children in an
unsupervised fashion, because he is very caring and “would never hurt” a child.
Tomlin testified that she has never observed any sign that Hunter might have
abused her children.




                                        36
                               January Term, 2011




       {¶ 177} Tomlin had an opportunity to observe Hunter with Trustin.
Tomlin stated, “Trustin seems [sic] fine when we were around. He didn’t seem to
be scared or anything.”
       {¶ 178} Hunter and Ashley continue to have a beneficial relationship. If
Hunter received the death sentence, Tomlin stated, “[i]t would kill [Ashley]. It
would absolutely kill her.” Tomlin added that a death sentence would have the
same impact on her.
       {¶ 179} Tamara Kay Mitchell and Hunter were married from 1996 to
1999. They had one son, Lamont Jr., and raised two other children together.
Mitchell stated that Hunter has had a great relationship with all her children. She
said, “I have three children and out of those three children Lamont is the best
father that they have. I mean, he’s the only father really that they know and I
wouldn’t trade him for the world.” Mitchell stated that Hunter paid the bills and
took care of her and her children. Mitchell also testified that Hunter has never
been abusive toward her children.
       {¶ 180} Mitchell described Hunter as “fun, caring, thoughtful, [and would]
help anybody any time, any situation.” Mitchell acknowledged that Hunter had a
domestic-violence case that involved her. Mitchell stated that had occurred 15
years earlier when they “were young. Things happen. He’s not an abusive person
though.”
       {¶ 181} Mitchell observed Hunter and Trustin interact. She stated, “At the
times that I observed Trustin with Lamont everything was fine. I used to keep
Trustin so Lamont could get him. * * * And when they were picked up Lamont
was the one that would pick him up. There was no issue.”
       {¶ 182} During cross-examination, Mitchell provided further information
about the domestic-violence incidents. She stated, “[W]e had three incidents
where things happened and they got out of control and, yes, the police were




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called. As far as him being violent, no. * * * A push or shove, but nothing
where I had to go the hospital to be treated for.”
          {¶ 183} Debra Barnes, the defendant’s oldest sister, testified that Hunter
had been a happy child and got along well with everyone in the family. However,
there were problems in the family that had an impact on Hunter. Hunter’s father
was an alcoholic, his parents had arguments, and sometimes there was “hitting.”
          {¶ 184} Barnes also testified that Hunter had been a construction worker
and worked for a company for several years. Hunter was about to start a seal-
coating business around the time of Trustin’s death.
          {¶ 185} She has also observed Hunter interact with his daughter Trinity
and said that he is a “great dad.” Hunter has also been a great father with his
other children and helped them with their homework. Similarly, Hunter has been
very good with Barnes’s children.
          {¶ 186} Barnes has developed a really close relationship with Hunter over
the last couple of years. She expressed her love for Hunter and stated that his
death would be “totally * * * devastating[.] * * * [Their] family would fall
apart.”
          {¶ 187} Mariah Brown, the defendant’s 16-year-old stepdaughter, has
known Hunter since she was seven-and-a-half months old. She testified that
Hunter has been a good stepfather: “He used to take me to school, do my hair,
help me with my school projects, he was there for each play I was in, helped me
pick my high schools.” Hunter never abused her in any way. Brown testified that
if Hunter were sentenced to death, “[i]t would kill” her.
          {¶ 188} Ashley Hunter, the defendant’s 18-year-old daughter, testified that
Hunter has been an important part of her life. She said, “He is everything to me.
Like I don’t know or I wouldn’t know how to act if he wasn’t around. I talk to
him about going to college and everything and he’s my support.” Ashley had a
loving and nurturing relationship with her father. She stated that if he were




                                          38
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sentenced to death, “[t]hat would kill a part of me.” She added, “Like I wouldn’t
be the same person.”
       {¶ 189} Hunter’s unsworn statement.          Trial counsel read Hunter’s
unsworn statement to the panel. He wrote:
       {¶ 190} “Contrary to the charges, I am a loving father to my children, son
to my parents, and brothers [sic] to my siblings. I’m a taxpaying citizen of this
community.
       {¶ 191} “I have made mistakes in the past in an attempt to find my way in
life. I’m not a saint, but I’m not a monster either. I feel I have paid for my
mistakes in the past as for my criminal record. I sold and used drugs back then,
but that was then. I have learned from my mistakes and have utilized them as a
stepping stone to better myself as a person.
       {¶ 192} “I have accomplished a few personal goals in my life that I’m
proud of. I’m a part owner of my company. I learned a skill and trade in seal
coating. I worked for a company called * * * ABC Oak Pavement Services for
five years. I took the training and skills I learned from that company and applied
them to my own ambition * * * to become partners in a law-abiding, productive
business.
       {¶ 193} “* * *
       {¶ 194} “Unfortunately, this tragic incident happened in my life and my
family life has not been the same. I am truly saddened and remorseful for this
tragic incident. Again, I am truly saddened and remorseful for this tragic incident.
       {¶ 195} “My life will never be the same. Trustin’s life is no longer with
us physically. I love Trustin and I will always love him. To me he was my son
and he will always hold that place in my heart.
       {¶ 196} “My story did not come to light at trial. I was a great father to my
children. I have four biological children: Ashley, 18, Lamont, 14, Alida, 12 and
Trinity, 2.   I have also raised two other children that are not my biological



                                         39
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children.   I was also a father to Trustin, Terrell and Tyree.        Their mother,
Luzmilda, knew I was there for all three of them and knew that the bond that I
formed with them was a natural bond.
       {¶ 197} “I am a God-fearing man, and I was fortunate enough to have my
parents in my life, so I feel that every child deserves a mother and a father, and
that’s why I have been there for my children and the children of other men.
       {¶ 198} “I would never harm a child.           I don’t believe in physically
punishing kids. I have disciplined my children in the past, but my discipline has
never been extreme and/or abusive.
       {¶ 199} “I never once laid my hands on Trustin in any harmful way. What
happened on January 19th, 2006 was unfortunate.
       {¶ 200} “I pray that this letter gives edification and clarity of who Lamont
Hunter really is as compared to being Lamont that was depicted and displayed by
the media, particularly [the] Cincinnati Enquirer.”
                               Sentence Evaluation
       {¶ 201} We find nothing mitigating in the nature and circumstances of the
offense. Hunter raped and murdered his girlfriend’s three-year-old son while she
was at work. Trustin died from massive head injuries and had been tortured.
These facts establish a senseless, horrific crime that lacks any mitigating features.
       {¶ 202} 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; Hunter was 37
years old at the time of the offense); (B)(5) (lack of a significant criminal record);
(B)(6) (accomplice only); and (B)(7) (any other relevant factors). We find that
none of these statutory factors are applicable except (B)(7).
       {¶ 203} Under the catchall R.C. 2929.04(B)(7) provision, we give some
weight to the evidence of the love and support that Hunter shares with his parents,
his brothers and sisters, his ex-wife, Tamara Mitchell, and his former girlfriend,




                                         40
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Theresa Tomlin. In addition, we give weight to evidence that Hunter loves and
cares for his children.
       {¶ 204} Testimony was also presented indicating that Hunter has a history
of drug and alcohol abuse. However, we give little weight to this testimony,
because there is no evidence of any connection between Hunter’s drug and
alcohol abuse and the offenses in this case.
       {¶ 205} Hunter also expressed remorse and sorrow for Trustin’s death in
his unsworn statement. But Hunter also said, “I never once laid my hands on
Trustin in any harmful way.          What happened on January 19th, 2006 was
unfortunate.” Thus, Hunter continues to deny any responsibility for Trustin’s
murder. Hunter’s denials negate any mitigating weight that we might otherwise
give to his expressions of sorrow. See State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, ¶ 266; State v. Brinkley, 105 Ohio St.3d 231,
2005-Ohio-1507, 824 N.E.2d 959, ¶ 178. The evidence does not suggest any
other (B)(7) mitigating factors.
       {¶ 206} Based on our independent weighing of the evidence, we find that
the aggravating factors of Hunter’s murdering Trustin Blue while committing or
attempting to commit rape under R.C. 2929.04(A)(7) and of murdering a child
who was younger than 13 under R.C. 2929.04(A)(9) clearly outweigh any
mitigating factors beyond a reasonable doubt. We also find that the penalty
imposed in this case is both appropriate and proportionate when compared to
death sentences imposed for other child murders under R.C. 2929.04(A)(9). See
State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 119
(12-year-old victim); State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787
N.E.2d 1185, ¶ 196 (six-year-old victim); and State v. Smith, 97 Ohio St.3d 367,
2002-Ohio-6659, 780 N.E.2d 221, ¶ 79 (six-month-old victim).
       {¶ 207} We also find that the death penalty is appropriate and
proportionate when compared to death sentences approved for other rape-



                                           41
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murders. See State v. Mason (1998), 82 Ohio St.3d 144, 170-171, 694 N.E.2d
932; State v. McGuire (1997), 80 Ohio St.3d 390, 391, 404, 686 N.E.2d 1112; and
State v. Phillips (1995), 74 Ohio St.3d 72, 106, 656 N.E.2d 643.
                                    Conclusion
       {¶ 208} We affirm Hunter’s convictions and sentence of death.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
                             __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr., Chief Assistant Prosecuting Attorney, for appellee.
       Bruce K. Hust and Herbert E. Freeman, for appellant.
                           ______________________




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