[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Pickens, Slip Opinion No. 2014-Ohio-5445.]




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


                         SLIP OPINION NO. 2014-OHIO-5445
            THE STATE OF OHIO, APPELLEE, v. PICKENS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Pickens, Slip Opinion No. 2014-Ohio-5445.]
Criminal law—Aggravated murder—Death penalty affirmed.
  (No. 2010-1406—Submitted August 19, 2014—Decided December 16, 2014.)
          APPEAL from the Court of Common Pleas of Hamilton County,
                                    No. B-0905088.
                                 _________________
        PFEIFER, J.
        {¶ 1} This is an appeal of right by defendant-appellant, Mark Pickens,
who was convicted of the aggravated murders of Noelle Washington, her nine-
month-old son, Anthony Jones III, and three-year-old Sha’railyn Wright. A jury
recommended the death sentence for the three murders, and the trial court
sentenced Pickens to death.
        {¶ 2} For the following reasons, we affirm Pickens’s convictions and
sentence of death.
                            SUPREME COURT OF OHIO




                                I. Trial Evidence
       {¶ 3} Evidence introduced at trial showed that Pickens shot and killed
Noelle and the two children in Noelle’s Cincinnati apartment after Noelle
reported to the police that Pickens had raped her two days earlier.
                      A. Noelle’s and Pickens’s relationship
       {¶ 4} Noelle and Pickens began dating in February 2009. Noelle was
planning, however, to end their relationship and move to Nashville, Tennessee, to
live with her sister, Tamika Washington.
                                    B. The rape
       {¶ 5} Around 10:30 a.m. on May 31, 2009, Noelle went to Pickens’s
residence at Gateway Plaza Apartments in Cincinnati. About an hour and a half
later, Noelle stumbled into the hallway, apparently pushed out, her pants below
her hips. Noelle went to a neighboring apartment, pounded on the door, and
screamed for help.
       {¶ 6} Darlene Tucker lived in that apartment. Tucker testified that Noelle
beat on her door, screaming, “[P]lease, help me, let me in before he gets me.”
Tucker opened the door and let Noelle inside. Noelle was hysterical and said that
her boyfriend had a gun and had raped her. Tucker said that Noelle’s hair was
messy, she was sweating profusely, and she kept pulling up her pants around the
waist. At Noelle’s behest, Tucker called 9-1-1.
       {¶ 7} At 12:30 p.m., Officer Marian Jenkins of the Cincinnati police met
with Noelle at Tucker’s apartment. Noelle said that she had been raped by Mark
Pickens and described what happened. Noelle said she had gone to Pickens’s
apartment to have sex with him. But when Pickens started acting “funny,” she
decided that she did not want to have sex. Noelle told Pickens, “[N]o, no, I am
not staying. I don’t want to.” Noelle said that Pickens then pulled out a gun and
laid it on the bed. Noelle said that they then had sex. Afterwards, Pickens left the




                                         2
                                January Term, 2014




building but Noelle did not know where he went. Noelle was then transported to
the police department.
       {¶ 8} At 1:20 p.m. on May 31, Detectives Chris Schroder and Stephanie
Broxterman conducted an audio-taped interview of Noelle. Noelle stated that she
went to Pickens’s apartment at his invitation. According to Noelle, they talked at
first and then started wrestling around. But he started playing rough and she told
him to stop. Noelle told Pickens that she was going to leave, and Pickens told
her, “I was fixing to get some pussy.” Noelle repeated that she “didn’t want to do
it” and wanted to leave. Pickens replied, “[Y]ou ain’t about to leave. We about
to do it.” Noelle said that Pickens then took a gun out of the dresser drawer and
placed it on top of the dresser. He then started taking off Noelle’s clothes.
       {¶ 9} Noelle stated that she told Pickens that she needed to use the
bathroom.    But Pickens followed Noelle there and forced her back into the
bedroom. Pickens then resumed removing her clothes, got on top of her, and had
vaginal sex with her. When they finished, Noelle said that Pickens “started
hitting me around.” With the gun in his hand, he told Noelle, “I am going to kill
us both and take us out of our misery.”
       {¶ 10} When Noelle told Pickens that she was calling the police, Pickens
tried to take her phone from her. He pulled her hair, choked her, and punched her
until he got the phone.      Pickens then pushed Noelle into the hallway and
continued hitting her. Noelle said that she grabbed the phone from him, thinking
that it was hers, but she later discovered that she had taken Pickens’s phone.
       {¶ 11} Noelle stated that she and Pickens had exchanged text messages
since the rape. Noelle said that Pickens asked her why she had called the police
and asked her if she was “going to try to set [him] up.” Noelle also said that
Pickens’s mother had called her after the rape and told her that Pickens knew that
Noelle had been with the police.




                                          3
                             SUPREME COURT OF OHIO




       {¶ 12} During follow-up questioning, Noelle said that Pickens had hit her
approximately 25 times and struck her in the face three times. Noelle said that
she had been wearing only a t-shirt when she was pushed into the hallway, and
she got dressed inside the neighbor’s apartment.
       {¶ 13} During the interview, Noelle agreed to call Pickens and confront
him about the rape. During the recorded phone call, Noelle confronted Pickens
and asked, “Why did you have sex with me when you know that I didn’t want you
to?”   Pickens responded, “I didn’t have sex with you.”          Despite continued
accusations, Pickens said repeatedly that he had not had sex with Noelle or hit
her. During the conversation, Pickens said, “You * * * put a warrant out on me.”
Noelle replied, “No, they wanted me to talk to them but I didn’t. I love you.” But
Pickens said, “You was talking to them. You told them everything.”
       {¶ 14} Following the police interview, Noelle went to the hospital for a
rape exam. Kathleen Ferrara, a sexual-assault nurse examiner, examined Noelle.
Noelle told Ferrara that she went to Pickens’s apartment because he owed her
money. Noelle said that Pickens started playing rough and insisted on having sex.
Noelle told him that she did not want to have sex, and he started hitting and
choking her. Noelle said, “I closed my legs together, but he pried them open. I
was crying, telling him to stop.” He then started “doing it” to her.
       {¶ 15} Ferrara’s examination showed that Noelle’s lip was swollen and
she had a bite mark on the right upper lip. There were also lacerations on her
neck that were consistent with scratching. Ferrara also observed a laceration and
bite mark on Noelle’s chest, a laceration on her shoulder, a bite mark on her right
thigh, and bruises on her left inner calf and left knee. Ferrara testified that these
were fresh injuries that were consistent with Noelle’s statement that Pickens had
pried her legs open. Noelle suffered a laceration to her right inner labia that was
approximately three centimeters long and a laceration to the left inner labia that




                                         4
                                January Term, 2014




was approximately two centimeters in length. Ferrara testified that these injuries
were “consistent with someone that is not * * * having consensual sex.”
       {¶ 16} At 10:44 a.m. on June 1, 2009, Schroder and Broxterman went to
Pickens’s apartment to question him. Schroder knocked on Pickens’s door and
received no answer. Schroder then wrote “please call me” on the back of a
business card and left the card in the door.
                 C. Events between Noelle’s rape and her murder
       {¶ 17} Crystal Lewis, Noelle’s friend and Sha’railyn Wright’s mother,
testified that on the afternoon of May 31, she talked to Noelle on the phone.
Noelle said that she was at the hospital because “Mark raped me” and “hit me”
and left “marks and bruises all over my body.” Noelle also thought that Pickens
had her house keys because she left them at his apartment.
       {¶ 18} Gwendolyn Washington, Noelle’s mother, testified that on the
afternoon of May 31, she was with her son, Derrick Lee. During that time, she
received a text message from Noelle’s phone stating, “This MARK I DO NOT
WANNA BE WIT YO DAUGHTER.”                     Derrick testified that on that same
afternoon, Noelle called him. Noelle was crying and kept repeating that “he raped
me.” Noelle also talked to her mother and told her that Pickens had raped her and
that she was at the hospital.
       {¶ 19} Tamika Washington, Noelle’s sister, testified that on May 31,
Noelle called screaming, “[H]e beat me up, he beat me up,” and hung up. Tamika
then called Noelle’s phone number, and a male answered. He stated, “You fat
bitch, quit calling the phone,” and hung up. At that point, Tamika started sending
text messages to that phone number. Tamika testified that one of the return text
messages stated, “Noelle was only good for sucking his dick, he didn’t care about
her, the only thing she did after he hurt her feelings she would run to me and cry
to me.” Tamika then called him and said, “You are going to jail, you are going to




                                          5
                              SUPREME COURT OF OHIO




jail.” He responded, “That’s okay, because if I go to jail, then I am going to fuck
her up.” He then hung up.
          {¶ 20} Jonda Palmer, a girlfriend of Pickens, testified that around 5:00
p.m. on May 31, Pickens came to her home. Pickens said that someone had
accused him of rape, and he was angry. Pickens then asked Palmer if she would
join with some other girls to beat up his accuser. Palmer refused. Palmer testified
that when she gave Pickens a hug, she felt an object around his waist. She lifted
up his shirt and saw a gun in his waistband. Palmer testified that after he left,
they exchanged text messages, and Pickens said, “I feel like killing someone.”
                    D. Noelle, Sha’railyn, and Anthony murdered
          {¶ 21} Tanisha Scott, Noelle’s cousin, testified that on the afternoon of
June 1, 2009, she went to Noelle’s home, and Noelle, Anthony, and Sha’railyn
were there. Noelle told Tanisha that Pickens had raped her and that she was
afraid of him. She could not find her keys and said that Pickens had them.
Tanisha left around 8:00 or 9:00 p.m.
          {¶ 22} Ronell Harris, an acquaintance of Noelle, testified that at 11:40
p.m. on June 1, he saw Noelle talking to a man outside the building where she
lived. Harris asked Noelle if everything was all right, because he had never seen
Noelle outside so late. Noelle said everything was fine. Harris also asked where
her children were, and she said that they were upstairs. Before leaving, Harris
told Noelle, “[I]f you need me, just call me.” Harris testified that he later saw
Pickens’s photo on TV and recognized him as the man who had been talking to
Noelle.
          {¶ 23} Cynthia Evans testified that on the evening of June 1, she was
visiting a friend outside a church across the street from Noelle’s apartment
building. Evans stated that she saw a woman with a baby arguing with a man
across the street. Although Evans could not hear their conversation, she saw that
the woman was crying and wiping her eyes, and the man was animated and




                                          6
                               January Term, 2014




looked mad. Evans saw them enter the apartment building. Evans testified that
she heard loud music and later heard “two pops; boom, boom” and then “another
pop, pop.”   She then heard “another pop, pop,” and her friend said, “that’s
gunfire, Cindy.” Evans stated that the music stopped, and it became quiet.
       {¶ 24} Evans testified that shortly thereafter, a woman came down the
street and entered the apartment. She then came outside and screamed, “[M]y
baby, my baby.” Evans asked the woman what was the matter, and she said that
her baby was not breathing. Evans called 9-1-1, entered the apartment, and found
that Noelle and the two children were dead.
       {¶ 25} Police spoke to Lewis about the events of that evening. Lewis
testified that Sha’railyn stayed at Noelle’s home. At 11:12 p.m., Noelle texted
her, saying, “Bitch I jus woke up mark was comin thru the kitchen.” Lewis texted
back, “Wher he at now[?]” At 11:37 p.m., Noelle texted, “He gone.” At 11:40
p.m., Lewis texted, “I am about to come get her i am worry.” Noelle replied, “I’m
finn go back to sleep.” At 11:42 p.m., Lewis texted, “Na i dont want her to be in
da middle of that.” Noelle replied, “Of wat. He gone.” At 11:44 p.m., Lewis
texted, “i dont give a fuck if he is gone he can come right back n yall don’t need
to be there.” At 11:48 p.m., Lewis texted, “On my way now.” At 11:49 p.m.
Noelle texted, “K.” This was the last text message Lewis received from Noelle.
       {¶ 26} Lewis testified that she arrived at Noelle’s building about five or
ten minutes after leaving home. Lewis entered the building and found Noelle’s
door halfway open. Lewis went inside Noelle’s apartment and found Noelle
sitting on the couch with Anthony in her arms and a cell phone in her hand. They
were both dead. When she saw her daughter on the floor, Lewis ran outside,
screaming, “He killed my baby. My baby’s dead.”
       {¶ 27} At 12:15 a.m. on June 2, Cincinnati police officers arrived at
Noelle’s apartment. Noelle was found slumped over on the couch with a baby in
her arms and a cell phone in her hand. Sha’railyn was found lying near the TV in




                                        7
                             SUPREME COURT OF OHIO




the same room. All three victims had been shot in the head and were pronounced
dead.
                          E. Murder investigation begins
        {¶ 28} At 12:30 a.m. on June 2, Detective Greg Gehring examined the
crime scene. Investigators found no signs of forced entry, though a window was
partly open in the front of the building. No firearms were found inside the
apartment or in the area around the apartment building. Noelle’s keys were not in
the apartment.
        {¶ 29} Gehring learned that Noelle had filed charges against Pickens for
rape on May 31 and was informed about the text messages that Noelle had sent
before she was killed. Based on this information, Pickens was identified as the
murder suspect.    At approximately 3:45 a.m. on June 2, the police arrested
Pickens at his apartment and took him to the station. In the meantime, Gehring
watched surveillance footage from Gateway Plaza showing Pickens’s arrivals and
departures during the previous night.
                           F. Pickens’s police interview
        {¶ 30} Gehring testified that at 10:30 a.m. on June 2, Pickens waived his
Miranda rights and was interviewed. Initially, Pickens stated that he did not
remember what he did on May 31. Later, he stated that he “had got into it” with
Noelle on Saturday or Sunday. Pickens said that Noelle came over to his place
and they started playing rough. She then took his phone and ran out of the house.
Pickens said that that was the last time he saw Noelle.
        {¶ 31} Pickens said that Noelle sent him a text after she left his apartment
and told him that she had called the police because he took her phone and “pulled
her hair and stuff.” Pickens stated that he had not hit her, pulled her hair, or
punched her. He also denied having sex with Noelle on Saturday or Sunday.
Pickens said, “I ain’t had sex with her since earlier in that week * * *.”




                                          8
                                  January Term, 2014




        {¶ 32} As for June 1, Pickens said that he was at his mother’s home all
day, until 8:00 or 9:00 p.m. He then went straight home. Pickens said that he did
not leave his apartment for the rest of the evening and went to bed around
midnight. He denied going to Noelle’s apartment on June 1 and said that he had
not been to her home for about a month. Later, Pickens said that he had not been
to Noelle’s place for nine months.
        {¶ 33} Pickens denied killing Noelle. When he was informed that other
people had seen him at her place, Pickens said, “Ain’t nobody seen me over her
house. I was not over there.” When informed that surveillance video showed him
leaving his apartment and later returning, Pickens responded, “I did not leave.”
Pickens also denied owning a firearm or ammunition. When informed that the
police had found ammunition in his closet, Pickens replied, “You all ain’t found
no bullets in my apartment.”
        {¶ 34} Gehring also informed Pickens that the police were looking for him
because of the rape charge. Pickens said that he did not know that the police were
looking for him until he saw the card in his door the previous night. Pickens did
not know what the police wanted to talk to him about. He said he was going to
call the police later that day.
                       G. Surveillance videos and travel times
        {¶ 35} During trial, the state presented surveillance video taken in the
hallway outside Pickens’s apartment on May 31. The video showed that at 10:38
a.m., Noelle entered Pickens’s apartment. At 12:18 p.m., Noelle came out of the
apartment, pulling up the waist of her pants. Noelle knocked on the neighbor’s
door, and Tucker opened the door and talked to her. At 12:19 p.m., Noelle
returned to Pickens’s apartment, knocked on the door, and Pickens came into the
hallway. Noelle reached into Pickens’s back pocket, and they began to struggle
on the hallway floor. Noelle then returned to Tucker’s apartment and Pickens
departed. At 12:20 p.m., Pickens returned to his apartment. At 12:29 p.m., two




                                          9
                            SUPREME COURT OF OHIO




Cincinnati police officers arrived on the scene and talked to Noelle. They also
knocked on Pickens’s door, but he did not answer. At 12:46 p.m., Noelle left with
the police.
       {¶ 36} The state also presented surveillance videos taken outside
Pickens’s apartment and other locations at Gateway Plaza on June 1 and 2. The
video showed Pickens leaving his apartment at 7:33 a.m. on June 1. At 10:44
a.m., Schroder and Broxterman arrived at Pickens’s apartment. Schroder knocked
on the door and left his card. At 10:32 p.m., Pickens returned to his apartment
and took the card from his door. At 10:37 p.m., Pickens left his apartment with
his bicycle while wearing a jacket that was later found to have gunshot residue on
it. The outside video showed that at 12:04 a.m. on June 2, Pickens returned to
Gateway Plaza on his bicycle. But the hallway video showed Pickens returning
with his bicycle to his apartment at 11:58 p.m. This discrepancy was explained
by Gehring, who testified that the timer on the outside video was five minutes fast
and the hallway video was two minutes slow.
       {¶ 37} During trial, Officer Tim Watson, a Cincinnati bicycle policeman,
testified that he measured the time it took to ride a bicycle on three different
routes between Gateway Plaza and Noelle’s home. He took the trips between
10:00 and 11:30 p.m. on three different evenings. He stated that the fastest trip
took three minutes and 20 seconds, and the slowest trip took four minutes.
                              H. Forensic evidence
       {¶ 38} Andrew Burger, a criminalist with the Cincinnati Police
Department, recovered three .45-caliber shell casings and a projectile from
Noelle’s apartment. The apartment had not been ransacked and there were no
indications of a struggle. One of the outside windows was slightly open, and “it
looked like someone had tried to push it up from the outside.” Burger saw finger
marks on the window and dusted for fingerprints. He was unable to develop any
usable prints.




                                        10
                               January Term, 2014




       {¶ 39} Barbara Mirlenbrink, a criminalist with the Cincinnati Police
Department, testified that she collected evidence from Pickens’s apartment. She
found a box containing 43 rounds of .45-caliber ammunition in Pickens’s closet
and various items in a garbage can, including two pairs of baby socks, a baby toy,
a gold earring, a social security card for Anthony Jones III, and a National City
debit card in Noelle’s name. An Ohio Direction Card in Noelle’s name was also
found on the bedroom dresser and a bicycle and a jacket on Pickens’s patio.
Mirlenbrink testified that the upper portion of the jacket was completely dry but
the sleeves were wet “like it had been dipped.” Mirlenbrink tested the bicycle for
gunshot residue.
       {¶ 40} Michael Trimpe, a forensic scientist at the Hamilton County
coroner’s crime laboratory, testified that he tested lifts taken from the bicycle
frame, the bicycle seat, the handlebars, and the handles. Those tests revealed the
presence of particles from detonated primer of a discharged firearm. Trimpe
testified that “the presence of primer residue on an item is consistent with that
item at some time in its history having been in the vicinity of a firearm when it
was discharged or having come into contact with primer residue on another item.”
Trimpe also took lifts from the cuffs and sleeves of the jacket, which tested
positive for the presence of gunshot residue.
       {¶ 41} John Heile, a firearms and toolmark examiner for the Hamilton
County coroner’s crime laboratory, examined the three Federal .45-caliber
automatic cartridge cases found at the murder scene. He testified that the three
cartridge cases were all fired from the same weapon. Heile stated that they could
have been fired from “a Colt, a Kimber or a U.S. military type 45 * * * caliber
semi-automatic pistol.”    Heile also found severe “chamber marks” on the
cartridge cases, which indicated that a defect could have hindered the cartridge
from properly entering the chamber. Heile said that this might have caused the
weapon to jam before each shot was fired.




                                        11
                             SUPREME COURT OF OHIO




       {¶ 42} Heile examined the two autopsy bullets and the bullet found at the
scene. He testified that they were .45-caliber automatic hollow-point bullets, and
they were all fired from the same weapon. The ammunition found in Pickens’s
closet was also examined, and these were Winchester .45-caliber automatic
hollow-point bullets. Heile testified that this ammunition was compatible with the
weapon that fired the autopsy bullets.
       {¶ 43} William Harry, a forensic scientist with the Hamilton County
coroner’s crime laboratory, testified that he identified semen on the vaginal swab
collected from Noelle. He testified that DNA extracted from the swab matched
the DNA profile of Pickens. Harry stated that this profile “would be expected to
occur in approximately one in one sextillion nine hundred seventeen quintillion
individuals.”
                                 I. Autopsy results
       {¶ 44} Dr. William Ralston, chief deputy coroner for Hamilton County,
conducted the autopsy of the three victims. He testified that Noelle died from a
single gunshot wound to the back of the head. He stated that toxicology testing
was negative for the presence of alcohol or drugs. Dr. Ralston testified that
Anthony Jones died from a gunshot wound to his forehead. Dr. Ralston identified
soot and stippling around the entrance wound, which he said shows that this was a
close-range shot fired from a distance of 6 to 12 inches.
       {¶ 45} Dr. Ralston testified that Sha’railyn Wright died from a gunshot
wound on the left side of her head behind the ear. There was also a gunshot
injury to the left first finger and the left middle finger. He testified that these
wounds may have occurred while Sha’railyn was covering her head with her
hands. Dr. Ralston also testified that he detected stippling and soot on the fingers,
which indicated that the firearm was fired at a range of 6 to 12 inches from
Sha’railyn’s head.




                                         12
                                  January Term, 2014




                               J. Informant’s testimony
        {¶ 46} Montez Lee testified that he and Pickens were housed in the same
cell block. Lee stated that Pickens told him, “I killed that bitch and the babies.”
Pickens told him that he had killed Noelle because “the girl kept calling the police
on him.” Pickens said that he shot Noelle in the head with a .45 automatic with
hollow-tip bullets.    Pickens also said that the police found some .45-caliber
ammunition in his house, but it was not the same kind of ammunition that he had
in his gun. Pickens said that he killed the three-year-old child because she knew
him and could identify him and that he shot the baby “[b]ecause the baby was just
there, like he got a rush out of it.”
                                  K. Defense evidence
        {¶ 47} The defense called no witnesses during the trial phase but
presented several exhibits. The evidence included three grand-jury indictments
brought against Lee before he agreed to testify against Pickens: an indictment for
aggravated robbery, robbery, and felonious assault, an indictment for robbery, and
an indictment for aggravated murder, murder, aggravated robbery, robbery, and
having weapons while under a disability.
        {¶ 48} The trial court also admitted Lee’s plea agreement, in which Lee
agreed to testify against Pickens in exchange for the state’s agreement to accept
Lee’s guilty plea to one count of voluntary manslaughter with a firearm
specification. The state also accepted an agreed prison sentence of 13 years and
agreed to dismiss the remaining counts and specifications in the indictments.
        {¶ 49} The trial court also admitted a handwritten letter that Lee sent to
Pickens asking him for $300 in exchange for Lee’s agreement not to testify.
        {¶ 50} In addition, the trial court admitted a complaint for a theft offense
filed against Ronnell Harris that was presented to impeach Harris during his
testimony.




                                          13
                             SUPREME COURT OF OHIO




                                 II. Case history
       {¶ 51} The state charged Pickens with three counts of aggravated murder.
Count Two charged him with the aggravated murder of Noelle with prior
calculation and design and contained death-penalty specifications for murder to
escape accountability for a crime, R.C. 2929.04(A)(3), and for murder as part of a
course of conduct involving multiple murders, R.C. 2929.04(A)(5). Count Three
charged him with the aggravated murder of Sha’railyn, a child under the age of
13. Count Four charged him with the aggravated murder of Anthony, a child
under the age of 13.         Counts Three and Four contained death-penalty
specifications for a course of conduct, R.C. 2929.04(A)(5), and for the murder of
a child under the age of 13, R.C. 2929.04(A)(9). All three counts contained
firearm specifications.
       {¶ 52} Pickens was also charged with three additional counts. Count One
charged him with the rape of Noelle. Counts Five and Six charged him with
having a weapon under a disability.
       {¶ 53} Pickens pled not guilty.
       {¶ 54} The jury found Pickens guilty of all charges and specifications and
recommended that he be sentenced to death. The trial court accepted the jury’s
recommendation and sentenced Pickens to death on all three counts of murder.
Prior to sentencing on the noncapital offenses, the trial court merged Counts Five
and Six and merged the three gun specifications.         The trial court sentenced
Pickens to ten years for rape, five years for having a weapon under a disability,
and three years on the firearm specification.
                               III. Issues on Appeal
       {¶ 55} In this appeal, Pickens raises ten propositions of law. These issues
will be addressed in the approximate order that they arose during the trial.




                                         14
                                  January Term, 2014




                               A. Pretrial and trial issues
              1. Voir dire on defendant’s youth (Proposition of law I)
        {¶ 56} Pickens argues that the trial court erred by allowing the prosecutor
to ask prospective jurors during voir dire about his youth as a mitigating factor.
During voir dire of the first group of prospective jurors, the prosecutor made the
following comments:


                As far as Mr. Pickens goes, my understanding is he’s
        around 20 years old or so now, and that he may have been around
        19 or so around the time of these crimes. Do any of you feel
        because of his age –
                Mr. Ancona [defense counsel]:           Objection.   Can we
        approach your honor?
                The Court: Sure.


        {¶ 57} Counsel argued that the “prosecution can’t put into the record a
mitigating factor.”     The trial court replied, “You stopped them before they
actually got to it.”   Counsel moved for a mistrial and added, “[B]ut if the Court
does not grant a mistrial, the Court would instruct to disregard would be all right.”
The trial court sustained the defense objection and overruled the motion for a
mistrial. The trial court also instructed the prosecutor to “[s]tay away from
mitigating factors” and to “move on to something else.”
        {¶ 58} Pickens invokes State v. Wilson, 74 Ohio St.3d 381, 659 N.E.2d
292 (1996), and State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4386, 873 N.E.2d
828, in arguing that a mistrial should have been declared, because the prosecutor
improperly mentioned his youth as a mitigating factor during voir dire. In Wilson,
the defense argued that Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119
L.Ed.2d 492 (1992), allowed counsel to ask prospective jurors what they thought




                                           15
                             SUPREME COURT OF OHIO




about each of the statutory mitigating factors. Wilson at 385-386. Morgan held
that the trial court, at an accused’s request, must ask prospective jurors about their
views on capital punishment to ascertain whether any of them would
automatically vote for the death penalty regardless of the circumstances. Id. at
735-736. In rejecting defense arguments, Wilson held that “Morgan does not
require judges to allow individual voir dire on separate mitigating factors.”
Wilson at 386. Wilson stated that the “detailed questioning that occurred in this
case was adequate to expose faults that would render a juror ineligible. * * *
Morgan imposes no further requirements on voir dire.” Id.
       {¶ 59} In Mundt, the defense argued on appeal that trial counsel were
ineffective by failing to question a prospective juror about specific mitigating
factors. In rejecting this claim, the court cited Wilson and simply noted that “the
parties are not entitled to ask about specific mitigating factors during voir dire.”
Mundt at ¶ 84.
       {¶ 60} We have repeatedly held that a trial court is under no obligation to
allow counsel to question prospective jurors about specific mitigating factors.
See, e.g., State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d
504, ¶ 24; Wilson; see State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d 163
(2001). Neither the prosecutor nor defense counsel, however, is prohibited from
mentioning or asking questions about specific mitigating factors. See State v.
Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, ¶ 131 (court may
allow counsel to refer to specific mitigating evidence as examples of mitigating
factors during voir dire). The matter is one for the trial court’s discretion. In any
event, the trial court sustained an objection to the prosecutor’s comment about
Pickens’s youth before the prosecutor could pose a question to the jury. Thus, no
error occurred.
       {¶ 61} Based on the foregoing, we reject proposition I.




                                         16
                                January Term, 2014




                   2. Batson challenges (Proposition of law II)
       {¶ 62} Pickens argues that the prosecutor peremptorily challenged three
African-American prospective jurors because of their race, in violation of Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
                              a. The Batson standard
       {¶ 63} In Batson, the United States Supreme Court held that the Equal
Protection Clause of the United States Constitution precludes purposeful
discrimination by the state in the exercise of its peremptory challenges to exclude
prospective jurors solely on account of their race. Id. at 89. A court adjudicates a
Batson claim in three steps. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762,
890 N.E.2d 263, ¶ 61. First, the defendant must make a prima facie case of racial
discrimination. Batson at 96-97. Second, if the defendant satisfies that burden,
the prosecution must provide a racially neutral explanation for the challenge. Id.
at 97-98. Third, the trial court must decide, based on all the circumstances,
whether the defendant has proved purposeful racial discrimination. Id. at 98. At
this stage, the court “must examine the prosecutor’s challenges in context to
ensure that the reason is not merely pretextual.” State v. Frazier, 115 Ohio St.3d
139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65.            The judge must “assess the
plausibility” of the prosecutor’s reason for striking the juror “in light of all
evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct.
2317, 162 L.Ed.2d 196 (2005).
       {¶ 64} A trial court’s finding of no discriminatory intent will not be
reversed on appeal unless clearly erroneous. Frazier at ¶ 64; see Miller-El v.
Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). If a trial
court does err in applying Batson, the error is structural.       United States v.
McFerron, 163 F.3d 952, 956 (6th Cir.1998).




                                        17
                            SUPREME COURT OF OHIO




                           b. Prospective juror Hemphill
       {¶ 65} On her jury questionnaire, Hemphill answered the question,
“Please describe your views on the death penalty,” as follows:


               Mixed:      If someone commits murder should they
       experience to appreciate the extent of their crime?
       or
               If murder is so horrible and final should we go there when
       we have alternatives for punishment?


       {¶ 66} Hemphill also stated that she had received a J.D. degree from
Northern Kentucky University but decided not to practice law. She added, “Night
school paid by employer, Cincinnati Bell. After working with corporate legal
departments, I decided that I did not want to have to argue or win for a living.”
(Underlining sic.)
       {¶ 67} During voir dire, the prosecutor asked Hemphill for her views on
the death penalty:


               Mr. Tieger [the prosecutor]: * * * As far as the death
       penalty, can you tell me what your views on the death penalty are?
               Prospective juror 2: They’re mixed. I haven’t resolved it
       one way or the other, and I said that on my application.
               Mr. Tieger: I’m sure you thought about it a lot over the
       weekend?
               Prospective juror 2: No, I didn’t.
               Mr. Tieger: Just when you got here today?
               Prospective juror 2:    I tried to be Scarlett O’Hara on
       difficult topics.




                                        18
                          January Term, 2014




        Mr. Tieger: Tell me about the mixed feelings you have.
        Prospective juror 2: Well, on the one hand, if someone
takes a life or takes several lives, why should they be able to enjoy
their life? Then on the other hand, if it’s such a heinous crime, one
that we have very strong penalties for, then why would we use that
as a solution when there are other alternatives, so I’m constantly
going back and forth.
        Mr. Tieger: Correct me if I’m wrong, that one of your
thoughts is that life in prison is a worse penalty than the death
penalty because they will have time to reflect on what they did?
        Prospective juror 2: I don’t know if it’s worse. It’s an
alternative.
        Mr. Tieger:      I’m just reading your form:       If someone
commits murder, should they experience to appreciate the extent of
their crime, or if murder is so horrible and violent, should we go
there when we have alternatives for punishment?
        On the one hand, if it’s so bad maybe the death penalty is
appropriate, and the other, they should have to just sit in jail for the
rest of their lives as well.
        Prospective juror 2: I don’t know. It would depend on the
circumstance. I’m just saying if you ask me how I feel about the
death penalty, I play devil’s advocate with myself and say on the
one hand, what’s the ultimate punishment? On the other hand,
what do we as a society want to say about ourselves, and so how
you reconcile that, or can you ever reconcile that?
        Mr. Tieger: What I’m asking you, can you reconcile that
within yourself in terms of this particular case?




                                  19
                             SUPREME COURT OF OHIO




               Prospective Juror 2: As far as the case, once I hear the
       case, then I will be able to do that versus the general question of
       whether there should be the death penalty.
               ***
               Mr. Tieger: What I’m asking, kind of the round about way,
       can you follow the law that Judge Martin gives you?
               Prospective Juror 2: I prefer to follow the law, that way it’s
       less off me, if you see what I’m saying.
               Mr. Tieger: Right. But what I’m saying is the law at some
       point it doesn’t give you a choice, so to speak, that if you find
       these aggravating circumstances outweigh the mitigating factors
       beyond a reasonable doubt, what Judge Martin will tell you is that
       the jury shall impose the death penalty, you have no trouble with
       that law at all?
               Prospective Juror 2: No.
               Mr. Tieger: Even though you have mixed feelings now?
               Prospective Juror 2:       I have mixed feelings about the
       general question of the death penalty. If I’m given a specific case
       with specific instructions and specific evidence, then that’s what I
       will follow.


       {¶ 68} The prosecutor peremptorily challenged Hemphill, and trial
counsel objected that this was a Batson violation.
       {¶ 69} The state offered two race-neutral explanations for excusing this
juror. First, the prosecutor explained:


       If you look at her answer on the death penalty, it is extremely
       confusing and hard to understand. She says, mixed. If someone




                                          20
                                  January Term, 2014




       commits murder, should they experience to appreciate the extent of
       their crime, question mark, which doesn’t make sense. Then she
       says or, and underlines or, if murder is so horrible and final, should
       we go there when we have alternatives for punishment, and has a
       question mark there. I think that’s a very ambivalent answer. It is
       very anti death penalty.


       {¶ 70} Second, the prosecutor pointed to Hemphill’s comments on the
questionnaire about her law degree:


       On questions number 28, she does have a JD, and it looks like she
       went all the way through law school, and then there is an asterisk
       at the bottom of her form, night school paid by employer. After
       working with corporate legal department, I did not want to argue or
       win, which she underlines, for a living, which is very odd to go
       through that type of school and at the end, decide she didn’t want
       to finish it out.


       {¶ 71} Trial counsel challenged the state’s explanation and asserted, “She
cleaned up her answers extremely well in Voir Dire. Said she could follow the
law.” The trial court rejected the Batson challenge and found that “the State has
given a race neutral reason for excusing her and she will be excused * * *.”
       {¶ 72} Pickens argues that the state did not provide a race-neutral
explanation for the peremptory challenge of Hemphill. Pickens contends that
Hemphill’s answers during voir dire were “perfectly appropriate,” and “in light of
all the circumstances,” the state had an obvious discriminatory motive for
removing Hemphill from the jury.




                                          21
                            SUPREME COURT OF OHIO




       {¶ 73} Hemphill’s answers about the death penalty on her questionnaire
and during voir dire conveyed uncertainty about her views on the death penalty.
Hemphill acknowledged that her views about the death penalty were “mixed” and
stated that “I haven’t resolved it one way or the other * * *.”         Hemphill’s
equivocal answers about the death penalty show that the prosecutor’s race-neutral
justification for striking Hemphill was not pretextual. See Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 70 (prospective juror’s uncertainty
about the death penalty accepted as a race-neutral explanation for challenge).
       {¶ 74} Moreover, a review of the voir dire examination of the seated
jurors supports the plausibility of the prosecution’s reason for striking Hemphill
for her views on the death penalty. See Miller-El v. Dretke, 545 U.S. at 241-242,
125 S.Ct. 2317, 162 L.Ed.2d 196 (evidence of purposeful discrimination may be
found if reason for challenge to African-American is equally applicable to
otherwise similar non-African-American who is permitted to serve).               The
questionnaires and the voir dire testimony of the ten seated Caucasian jurors show
that none of them expressed a level of uncertainty about the death penalty equal to
that conveyed by Hemphill. Viewed as Miller-El directs, the record does not
support Pickens’s claim that the prosecution’s race-neutral reason for striking
Hemphill was pretextual.
       {¶ 75} The state’s second race-neutral justification was based on
Hemphill’s employment status. Peremptory challenges may be validly exercised
on the basis of employment status and occupation. See United States v. Simon,
422 Fed.Appx. 489, 494 (6th Cir.2011); State v. O’Neal, 87 Ohio St.3d 402, 409,
721 N.E.2d 73 (2000) (challenge to social worker on grounds that occupation was
not “pro-conviction” deemed race neutral). The state’s explanation was that
Hemphill failed to become a lawyer after she graduated from law school that her
employer had paid for.




                                        22
                                January Term, 2014




       {¶ 76} But juror McCune, a Caucasian male, was a lawyer and was not
challenged.    Nevertheless, the record shows that there were meaningful
differences between Hemphill and McCune. McCune had worked in several
different legal positions during his career and was currently employed as a
lawyer. Hemphill had gone to law school but had not pursued a legal career,
because she “decided that [she] did not want to have to argue or win for a living.”
(Underlining sic.) Thus, their similarity (i.e., they both went to law school) was
marginal at best. Thus, the record again fails to support Pickens’s claim that the
proffered race-neutral justification was pretextual.
                          c. Prospective juror Hutchinson
       {¶ 77} On his questionnaire, Hutchinson answered the question, “Please
describe your views on the death penalty” as follows: “If its proven beyond a
shadow of dought [sic] im [sic] for it, such as they confess to the crime.”
       {¶ 78} During voir dire, the prosecutor asked Hutchinson about his
comments on the questionnaire about the death penalty and the burden of proof:


               Mr. Tieger: As far as the death penalty, tell me your views
       on the death penalty.
               Prospective juror Hutchinson:        I believe in the death
       penalty, if the evidence points to that.        Like I wrote on my
       questionnaire, has to be beyond a shadow of a doubt.
               Mr. Tieger: When I was talking to the jury yesterday, I
       mentioned the words, shadow of a doubt. That’s not a legal term
       at all. It is beyond a reasonable doubt. Are you good with that?
               Prospective juror Hutchinson: Yes.
               Mr. Tieger: You put on your form if it is proven beyond a
       shadow of a doubt; I am for it, such as, they confess to the crime.
       In this particular case, he did not confess to the crime.




                                         23
                             SUPREME COURT OF OHIO




                Prospective juror Hutchinson: If the evidence points to
       that.
                ***
                Mr. Tieger: Okay. You also marked on your form that you
       are opposed, with very few exceptions. Can you talk about that a
       little bit?
                Prospective juror Hutchinson: The death penalty?
                Mr. Tieger: Your feelings on the death penalty.
                Prospective juror Hutchinson:      I believe in the death
       penalty, if the evidence points towards that. That’s it.


       {¶ 79} Hutchinson was also asked about his answer on the questionnaire
that he had encountered “a negative or a frightening experience with a person of
another race” whenever he had been pulled over by a white police officer.
Hutchinson said, “This was in the past when I was pulled over by a white cop,
they expressed how they was feeling at that time, either calling me boy, detaining
me, talking to me like I was trash.”
       {¶ 80} The prosecutor peremptorily challenged Hutchinson. The defense
objected to this challenge as a Batson violation, stating:        “He answered his
questions correctly. He is strong on pro death penalty. We believe there is * * *
[a]n irrational inference in dismissing him.”
       {¶ 81} The prosecutor provided three race-neutral justifications for
challenging Hutchinson. First, the prosecutor stated:


                If you look at his questionnaire in response to question 51
       on the death penalty, he says, proof beyond a shadow of a doubt,
       which is an incorrect standard, such as they confess to the crime.




                                         24
                               January Term, 2014




               So he is looking for something like a confession, which we
       don’t have in this case * * *.


       {¶ 82} Second, the prosecutor stated that Hutchinson said on his
questionnaire that he was “opposed with very few exceptions to the death
penalty.”   Third, the prosecutor described Hutchinson’s statement about his
negative experiences with white police officers as “troubling to us also in that
there are a number of white police officers that are going to testify. He comes in
with that predisposition. I think he will have a problem being fair and impartial.”
       {¶ 83} The trial court rejected the Batson challenge and made the
following findings:


               I am going to excuse him. I think the shadow of a doubt
       comment is a problem even if he did straighten it out.           The
       confession issue is a problem, even if he did address it. The risk is
       he would try to introduce another element to the offense. The
       issues concerning his prior problems with white police officers. I
       do not find it be a legitimate reason to kick somebody off because
       he says he is opposed with very few exceptions. That’s the law.
       Very few homicides ever get prosecuted for the death penalty. On
       that basis, it wouldn’t be enough. The state cited more than ample
       race neutral reasons to dismiss Mr. Hutchinson.


       {¶ 84} Pickens argues that the state failed to provide a reasonable race-
neutral explanation for peremptorily challenging Hutchinson. The trial court
accepted the state’s justification for excusing Hutchinson because he stated that
he supported the death penalty if it is proven beyond a shadow of doubt, when, for
example, there is a confession.          This was a race-neutral explanation.




                                        25
                             SUPREME COURT OF OHIO




Hutchinson’s statement, even as clarified at voir dire, indicated that he might hold
the state to a higher burden of proof than “beyond a reasonable doubt.”
Moreover, Hutchinson’s statement about confessions indicated that he might hold
the state to a higher evidentiary standard than required by law. See State v.
Wright, 7th Dist. Mahoning No. 03 MA 112, 2004-Ohio-6802, ¶ 18 (prosecutor’s
peremptory strike of juror who believed that state had to prove its case beyond a
shadow of a doubt was race neutral); United States v. Leonard, 356 Fed.Appx.
231, 234-236 (11th Cir.2009) (prosecutor’s peremptory strike was race-neutral
where juror said she might require the government to prove guilt by a burden of
proof higher than the “beyond the reasonable doubt” standard). Thus, we hold
that Hutchinson’s excusal was not a Batson violation.
                              d. Prospective juror Bell
       {¶ 85} During voir dire, the prosecutor questioned Bell about her views on
the death penalty. Bell stated that her views had “evolved some the past couple
days.” Bell stated she had a Baptist background and “wanted to make sure that if
I had to [apply] it, * * * it would be the right thing to do.” Bell said she “looked
up some scriptures and reflected on being a citizen, just being a good citizen and
following law.” Bell also talked to one of the ministers at her church about the
death penalty. Bell stated that the minister told her, “Just to look in certain
scriptures and that it was okay. It wasn’t one of those things where we weren’t
completely against it.”
       {¶ 86} Bell was also asked about her answer on the questionnaire about
police investigations. On her questionnaire, Bell stated: “I feel like crime scenes
are often contaminated, and precious evidence is either destroyed or overlooked.
They need to make closer connections w/the investigations.”       During voir dire,
Bell related this answer to “a couple of incidences at our school where I think it
took the police too long to get there.”




                                          26
                                  January Term, 2014




       {¶ 87} The prosecutor peremptorily challenged Bell, and trial counsel
objected that this was a Batson violation. The prosecutor offered the following
race-neutral explanation:


       It was troubling to me that she indicated to everybody here that
       after she was told not to discuss the case with anybody, she talked
       to somebody with her church as far as whether it is the right thing
       to do or not or whether or it is a law or rule she could follow. She
       has somewhat violated the rule the Court gave her in discussing the
       case with somebody else.


       {¶ 88} As an additional reason, the prosecutor mentioned Bell’s comments
about contaminated crime scenes. The prosecutor argued that her predisposition
put an unfair burden on the state with respect to the crime scene. The prosecutor
mentioned that this juror indicated on her questionnaire that she watched “CSI,
Law & Order, Criminal Minds, Cold Case, 48 Hours, [and] Unsolved Mysteries.”
       {¶ 89} Trial counsel challenged the state’s explanation. He argued that if
the prosecutor thought that the juror had violated the trial court’s instructions, he
should have challenged her for cause.
       {¶ 90} The trial court rejected the Batson challenge, stating, “The race
neutral reason of her going and seeking independent counsel on the issue of [the]
death penalty is sufficient to excuse her from the panel.”       But the trial court
rejected the prosecutor’s explanation that Bell’s comments about contaminated
crime scenes and watching TV crime shows provided a legitimate race-neutral
justification for excusing her.
       {¶ 91} Pickens argues that the prosecutor failed to provide a reasonable
race-neutral explanation to support the peremptory challenge. Bell’s discussion
about the death penalty with her minister after she had been instructed not to




                                          27
                             SUPREME COURT OF OHIO




discuss the case with anyone else was a race-neutral justification. Moreover, trial
counsel’s argument that the prosecutor should have challenged Bell for cause has
no merit because the “ ‘prosecutor’s explanation [for a peremptory challenge]
need not rise to the level justifying exercise of a challenge for cause.’ ” (Brackets
sic.) Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 97,
quoting Batson, 476 U.S. at 97, 106 S.Ct. 1712, 90 L.Ed.2d 69.
                 e. Pattern of excluding African-American jurors
       {¶ 92} Pickens argues that the prosecutor’s peremptory challenges of three
African-American prospective jurors exhibited a pattern of excluding African-
Americans from the jury. He presented no evidence, however, to support this
claim. Moreover, the empanelled jury included two African-Americans, and two
African-Americans served as alternate jurors. The state also did not use two
peremptory challenges that were available before the jury was finally selected.
The presence of African-Americans on a jury certainly does not preclude a
finding of discrimination but “ ‘the fact may be taken into account * * * as one
that suggests that the government did not seek to rid the jury of persons [of a
particular] race.’ ” (Brackets and ellipsis sic.) State v. White, 85 Ohio St.3d 433,
438, 709 N.E.2d 140 (1999), quoting United States v. Young-Bey, 893 F.2d 178,
180 (8th Cir.1990). Absent evidence of a pattern of misconduct, we conclude that
this claim lacks merit.
       {¶ 93} Based on the foregoing, we reject proposition II.
               3. Prosecutorial misconduct (Proposition of law III)
       {¶ 94} Pickens argues that the state engaged in misconduct by failing to
disclose discovery evidence in a timely manner and by failing to disclose Brady
evidence.   Pickens also argues that the prosecutor committed misconduct by
making improper comments during its opening statement and closing argument.




                                         28
                                    January Term, 2014




                              a. Discovery and Brady requests
         {¶ 95} Crim.R. 16(B), at the time of Pickens’s trial, required the
prosecutor to disclose certain information upon a proper discovery request made
by the defendant. Crim.R. 16 was amended effective July 1, 2010, but during the
trial, it stated:


                    (B) Disclosure of evidence by the prosecuting attorney
                    (1) Information subject to disclosure.
                    ***
                    (e) Witness names and addresses; record. Upon motion of
         the defendant, the court shall order the prosecuting attorney to
         furnish to the defendant a written list of the names and addresses of
         all witnesses whom the prosecuting attorney intends to call at trial,
         together with any record of prior felony convictions of any such
         witness, which record is within the knowledge of the prosecuting
         attorney.


         {¶ 96} The prosecutor must also provide defendants any evidence that is
favorable to them whenever that evidence is material either to their guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). Evidence is considered material when “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667,
682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
         {¶ 97} Pickens argues that the prosecutor failed to provide discovery until
the eve of trial or during trial and also failed to disclose Brady material in
discovery. First, Pickens claims that the state failed to provide the defense with




                                             29
                             SUPREME COURT OF OHIO




the audio portion of the surveillance video taken in the hallway outside Pickens’s
apartment. This claim lacks merit because Layne Hurst, the property manager of
Gateway Plaza Apartments, testified that the surveillance video did not include an
audio recording.
       {¶ 98} Second, Pickens argues that the state provided “late disclosure” to
the defense of its intention to call Montez Lee as a prosecution witness. Pickens
contends that he did not learn that Lee would testify until April 12, 2010, only
three days before opening statements. The record shows, however, that the state
informed the defense in a written discovery response on November 20, 2009, that
Lee was going to be a witness. Moreover, during a status hearing on discovery on
December 1, 2009, the prosecutor stated that “at some point in the trial, we are
definitely going to call” Lee. Thus, this claim lacks merit.
       {¶ 99} Third, Pickens makes the generalized claim that prosecution
witnesses made inconsistent statements that contained obvious Brady material
that were not disclosed. Pickens fails, however, to identify the witnesses or
specify which statements were not disclosed. Rather, he cites the record of the
proceedings on April 12, 2010, when the defense complained about late
discovery. Counsel complained about the late disclosure of Noelle’s inconsistent
statements about her reasons for going to Pickens’s apartment on the day of the
rape. The prosecutor countered that Noelle’s police statements had been provided
to defense counsel.
       {¶ 100} The prosecutor also reminded the court that during the Evid.R.
804(B)(6) hearing on March 19, 2010, Noelle’s friends and relatives testified as to
Noelle’s different reasons for going to Pickens’s apartment: Noelle told Officer
Jenkins and Detective Schroder that she went to his apartment to have sex, she
told her sister Tamika that she went to return something that she had taken from
Pickens’s car, she told her mother that she went to collect money that Pickens
owed her, and she told her friend Crystal Lewis that she went there “so we could




                                         30
                                  January Term, 2014




talk.” In addition, defense counsel had the statement that Noelle had written at
the hospital for the rape examination, where she stated, “Mark owed me money so
I went over to get it.”      Thus, the defense knew about Noelle’s inconsistent
statements before trial began, and no Brady violation occurred.
       {¶ 101} Pickens complains that these Brady materials were provided on
the eve of trial and were too late. As to late discovery, we have stated:


       [T]he philosophical underpinnings of Brady support the conclusion
       that even disclosure of potentially exculpatory evidence during
       trial may constitute a due process violation if the late timing of the
       disclosure significantly impairs the fairness of the trial.      Even
       where information may be exculpatory, “[n]o due process violation
       occurs as long as Brady material is disclosed to a defendant in time
       for its effective use at trial.”


State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001), quoting United
States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir.1985).
       {¶ 102} The defendant has the burden to prove a Brady violation rising to
the level of a due-process violation. Iacona at 92. As an initial matter, it is not
clear that the state provided late discovery about Noelle’s statements. At the very
least, the defense knew about Noelle’s inconsistent statements nearly a month
before trial began. Pickens also fails to explain how counsel were burdened in
presenting his case by not learning about Noelle’s inconsistent statements earlier.
       {¶ 103} Moreover, the court asked trial counsel if they wanted a
continuance to review witness statements and prepare for trial.             Counsel
responded, “I don’t think we need it, but if we did, we would certainly tell you.”
“Hence, ‘the trial court may have properly determined that appellant was prepared
to proceed despite any claim of unfair “surprise.” ’ ” State v. Hale, 119 Ohio




                                          31
                             SUPREME COURT OF OHIO




St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 119, quoting State v. Bidinost, 71
Ohio St.3d 449, 457, 644 N.E.2d 318 (1994); see also Iacona at 101. Thus,
Pickens has failed to establish that any delay in obtaining Brady materials or other
discovery deprived him of due process.
       {¶ 104} As a final matter, Pickens complains that Detective Gehring
improperly talked to a witness during trial and then failed to promptly disclose the
substance of the interview to the defense. During the state’s case-in-chief, the
defense objected that Gehring, who was himself a witness, had violated the trial
court’s order for a separation of the witnesses when he spoke to Lee, who would
later be testifying. The prosecutor responded that Gehring was the state’s “case
agent” and was “[b]asically just sitting there while we talk.” The trial court
agreed that Gehring should not be talking to the witnesses but stated, “I don’t
think there is any indication that there has been anything done wrong * * *.”
       {¶ 105} Trial counsel then expressed concern that Gehring and other
officers were obtaining information about a woman named Star Christ.
According to Montez Lee, Pickens said that Christ, who coincidentally was Lee’s
former girlfriend, was in the area the night of the murders and had seen Pickens
running from the scene.
       {¶ 106} The prosecutor informed the court that Lee’s statement about
Christ was checked out and nothing could be verified. Trial counsel objected and
stated that they should have been told in advance that Lee had made a false
statement to the police. The prosecutor added that he had interviewed Christ in
Gehring’s presence. During that interview, Christ denied seeing Pickens running
from the scene. The prosecutor stated that her office would try to contact Christ if
defense counsel wanted to talk to her, but that Christ had refused to divulge her
phone number. The defense declined, stating: “We will just proceed. I think it
was a valid point to bring to the court’s attention.”




                                          32
                                 January Term, 2014




          {¶ 107} Pickens fails to explain how the defense was prejudiced by the
late disclosure of Christ’s statement. Trial counsel did not request a continuance
to talk with Christ before Lee testified. In addition, the defense was informed
about Lee’s statements and Christ’s denials before Lee testified, and counsel later
used this information to discredit Lee’s testimony about Christ. During Lee’s
cross-examination, trial counsel asked, “Are you aware that [Christ] told the
police that she didn’t know anything about what you were talking about?” Lee
replied, “No, I don’t know nothing about that.” See State v. Kulchar, 4th Dist.
Athens No. 10CA6, 2011-Ohio-5144, ¶ 43 (no Brady violation where defense did
not request a continuance and obtained statements before witnesses testified).
          {¶ 108} Gehring’s testimony also helped to eliminate any prejudice that
might have resulted from the late disclosure of Lee’s statements about Christ.
During direct examination, Gehring was asked about Lee’s testimony regarding
Christ. Gehring testified that he had interviewed Christ, and she stated that she
was not in the area at the time of the murders. Thus, Pickens has failed to
establish a due-process violation based on late disclosure of information about
Christ.
                    b. Opening statements and rebuttal arguments
          {¶ 109} Pickens argues that the prosecutor committed misconduct during
his opening statement and closing argument on rebuttal. Except where noted,
however, trial counsel failed to object and thus waived all but plain error. State v.
Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978), paragraph one of the syllabus.
To prevail on plain-error review, Pickens must establish both that misconduct
occurred and that, but for the misconduct, the outcome of the trial clearly would
have been otherwise. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002); Crim.R. 52(B).
          {¶ 110} The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial




                                         33
                              SUPREME COURT OF OHIO




rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The
touchstone of the analysis “is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982).
                               (1) Opening statements
          {¶ 111} First, Pickens argues that the prosecutor misstated the evidence
and engaged in speculation when she interpreted Noelle’s message “K” to Lewis
(in response to Lewis’s text that she was on her way) as meaning that she would
leave her apartment to go with Lewis. Pickens argues that the prosecutor’s
interpretation was improper since there was no evidence other than “K.”
          {¶ 112} During the state’s opening statement, the prosecutor discussed
Noelle’s exchange of text messages with Lewis just before the murders. The
prosecutor stated that Noelle had texted Lewis at 11:12 p.m. that she had
awakened to find Pickens inside her apartment, and at 11:37 she texted that he
was gone. The prosecutor stated that Lewis replied, “You all don’t need to be
there with all that shit going on, for real. I am on my way.” Noelle responded, “
K,” which the prosecutor stated meant, “Okay. I will go with you, you are right.”
          {¶ 113} “During opening statements, counsel is accorded latitude and
allowed ‘fair comment’ on the facts to be presented at trial.” State v. Diar, 120
Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 145, quoting State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 157. The
prosecutor’s opening statement portrayed what happened to Noelle on the night of
the murders. The prosecutor’s statement that Noelle texting “K” meant that
Noelle would go with Lewis was fair comment. Thus, the prosecutor’s remarks
were neither error nor plain error.
          {¶ 114} Second, Pickens argues that the prosecutor committed misconduct
when he stated towards the end of his opening statement:




                                         34
                                January Term, 2014




               Ladies and gentlemen, when all the evidence in this case is
       put in and you would consider it, there is only going to be but one
       fair, just, proper verdict you can return. There is only going to be
       one verdict you can return that would comport with the oaths you
       have taken as jurors.
               And that is that this man right here is guilty of raping
       Noelle Washington, and then, that he is guilty of aggravated
       murder * * *.


       {¶ 115} A prosecutor may not express his personal opinion as to the guilt
of the accused. A prosecutor can, however, express a conclusion of guilt based on
what the state believes that the evidence will show. See State v. Gibson, 4th Dist.
Highland No. 03CA1, 2003-Ohio-4910, ¶ 39-40. Here, the prosecutor argued that
the jury should return a finding of guilt after he had outlined the evidence that the
jury would hear. Thus, the prosecutor’s remarks did not represent an improper
opinion regarding Pickens’s guilt.
       {¶ 116} Pickens makes a vague and unsupported argument that the
prosecutor’s comments were improper because he told the jury that it was their
sworn duty to convict Pickens. The prosecutor was not asking the jurors to return
a finding of guilty because of their oath. Rather, the prosecutor was linking the
juror’s responsibility to consider the evidence with their responsibility to return a
“fair, just, [and] proper verdict.” No plain error occurred.
                               (2) Rebuttal arguments
       {¶ 117} Pickens also argues that the prosecutor committed misconduct
during closing arguments on rebuttal. Both parties have latitude in responding to
arguments of opposing counsel. State v. Loza, 71 Ohio St.3d 61, 78, 641 N.E.2d
1082 (1994).




                                         35
                              SUPREME COURT OF OHIO




          {¶ 118} First, Pickens argues that the prosecutor improperly vouched for
Detective Gehring by stating, “Detective Gehring is a 13-year veteran. He is
young, he is smart and he is talented. And he is extremely competent to handle
this case.” The trial court sustained a defense objection to this argument and
ordered it stricken.
          {¶ 119} An attorney may not express a personal belief or opinion as to the
credibility of a witness. State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646
(1997).     “Vouching occurs when the prosecutor implies knowledge of facts
outside the record or places his or her personal credibility in issue.” State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 232. Here, the
prosecutor did not improperly vouch for Gehring. The prosecutor was responding
to defense counsel’s attacks on Gehring’s competence. Counsel had argued that
Gehring was inept in searching for the murder weapon, that he failed to swab
Pickens’s hands for gunshot residue after he was arrested, and that his
competence in reconciling the different times on the surveillance tapes was
questionable. See State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836
N.E.2d 1173, ¶ 120; State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819
N.E.2d 1047, ¶ 95.
          {¶ 120} Even assuming that the prosecutor’s remarks were improper, these
comments were not prejudicial. The trial court sustained a defense objection to
this argument and ordered the remarks stricken. Any errors were also corrected
by the trial court’s instruction that the arguments of counsel were not evidence
and that the jury was the sole judge of the facts. See State v. Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 164.
          {¶ 121} Second, Pickens argues that the prosecutor committed misconduct
by mentioning that his counsel were two public defenders. Pickens claims that
these comments implied that he received less effective representation than if he
had been represented by private counsel.




                                          36
                                January Term, 2014




       {¶ 122} The prosecutor began his rebuttal argument with the following
comments about trial counsel:


              This is actually the point where, in a little while, you are
       going to get ready to deliberate. I thought it was interesting when
       Mr. Ancona first introduced himself to you. I don’t know why I
       picked up on this and I don’t know if you did at all, but he said, we
       are Public Defenders representing Mark Pickens.
              What does everybody think when they think of Public
       Defenders? Overworked. Underpaid. You could care less about
       the people you represent. You are just going through the motions.
              And I think that when you review Mr. Aubin and Mr.
       Ancona’s performance, it was passionate, they were well-prepared.
              These boxes have been there since day one. They put a lot
       of work into this case. They got every document. They poured
       over it.    They knew what was coming.            Nothing was left
       uncovered. I think you would agree.
              And that’s the way it should be in a capital case. Nothing
       is left uncovered. Passionate. Fighting hard for their client.
              However, after all of that is said and done, the outcome is
       still the same. He is clearly guilty.


       {¶ 123} It is improper to denigrate counsel in the jury’s presence. Diar,
120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 219.                  The
prosecutor’s comments about trial counsel being public defenders and about
public defenders generally were unnecessary, but they were made to counter a
possible misperception on the part of the jury. The prosecutor’s comments about
trial counsel specifically were, however, complimentary.        Nothing was said




                                         37
                               SUPREME COURT OF OHIO




indicating that Pickens would have received better representation from retained
counsel. Under these circumstances, there is no reasonable basis to conclude that
the result of the trial would have been different absent these improper comments.
Thus, no plain error occurred.
       {¶ 124} Third, Pickens argues that the prosecutor misstated and speculated
on evidence not in the record during his rebuttal comments about DNA evidence
and the rape offense:


               As far as nothing being done on the swabs that Dr. Ralston
       talked about, we have the swabs from the 31st. Only the defendant
       and Noelle Washington’s DNA were on the swabs. There was no
       mixture of any other male or female donor. She was not with
       anybody else after the rape because we know exactly what she had
       been doing.
               Mr. Ancona: I object. No evidence to support that.
               The Court: It is closing argument. Sustained. Move on.


       {¶ 125} Counsel also objected when the prosecutor continued this
argument shortly thereafter:


       What’s interesting, there was semen on the anal swab. At the time,
       you don’t think much of it, and Bill Harry said, the way the female
       anatomy is, there is leakage because it comes out of the vagina and
       it travels down to the anal area.
               The reason that’s critical in this case is that that semen was
       found on May 31. You are not going to have semen in the anal —
               Mr. Ancona: Objection.




                                           38
                              January Term, 2014




               The Court: Sustained. You are objecting to something not
       quite said yet.
               Mr. Ancona: Objecting to his medical opinion.
               The Court: Sustained.
               Mr. Tieger: Ask yourself with normal hygiene, is there
       going to be semen in your anal area the next day after you
       supposedly had sex with somebody the day before?


       {¶ 126} “Prosecutors are entitled to latitude as to what the evidence has
shown and what inferences can be drawn from the evidence.” Jackson, 107 Ohio
St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, at ¶ 154. Here, trial counsel opened the
door to the prosecutor’s rebuttal argument.    The defense argued that DNA
evidence “doesn’t show a rape on the 31st. It shows DNA of Mark Pickens
within the last 72 hours.” Trial counsel later asserted, “There is no evidence.”
The prosecutor could rebut these claims by pointing out that DNA testing
identified Noelle’s and Pickens’s DNA on the vaginal swabs.           Thus, the
prosecutor’s argument that Noelle “was not with anybody else” represented fair
comment.
       {¶ 127} As to the prosecutor’s argument about semen on the anal swabs,
these comments were based on William Harry’s testimony that “the vagina and
anal area are very near, * * * so it is not uncommon to have drainage that will
result in having positive anal swabs or semen present on an anal swab * * *.”
Thus, the prosecutor’s comments about the anal swabs rebutted defense
arguments and bolstered the state’s argument that Pickens’s semen was deposited
on May 31.
       {¶ 128} Even assuming that the prosecutor’s two arguments were
improper, the trial court sustained defense objections, and Pickens has not
demonstrated how these comments prejudiced him. Thus, there is little chance




                                       39
                             SUPREME COURT OF OHIO




that the result of the trial would have been different absent these comments. See
State v. Treesh, 90 Ohio St.3d 460, 466, 739 N.E.2d 749 (2001).
       {¶ 129} Fourth, Pickens argues that the prosecutor improperly demeaned
him by labeling him a “killer” during rebuttal argument: “So, one killer to
another, Pickens to Lee. All of you said in voir dire that you could accept an
inmate witness. I am asking that you hold yourself to what you said earlier.” The
trial court overruled a defense objection to these comments.
       {¶ 130} The prosecutor’s comments responded to trial counsel’s argument
that Lee “says anything that will get him home. He is facing life without parole.
He is a murderer, a confessed murderer.” The defense also argued that Lee could
have gotten the information about the murders from somebody else. During
rebuttal, the prosecutor argued that Pickens might have told Lee about the
murders because “when something happens to us, you have a need to tell other
people. * * * It is very hard to keep a secret, very hard. Somebody eventually
finds out. So, one killer to another, Pickens to Lee.”
       {¶ 131} Both parties have latitude during closing arguments and may be
“colorful or creative.” State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523
(1988). Here, the prosecutor was responding to defense arguments and explained
why Pickens might have told Lee about the murders. Thus, the prosecutor’s
remarks represented fair comment and were not improper. See State v. Tibbetts,
92 Ohio St.3d 146, 168, 749 N.E.2d 226 (2001) (argument that defendant was a
“trained killer” deemed fair comment); State v. Nields, 93 Ohio St.3d 6, 37, 752
N.E.2d 859 (2001) (argument that the defendant was a “mean-spirited derelict”
represented fair comment). Even if the comment was improper, there is little
chance that this isolated comment denied Pickens a fair trial.
       {¶ 132} Fifth, Pickens argues that the prosecutor committed misconduct
by unilaterally defining the term “nutted” as meaning ejaculation. He argues that




                                         40
                                January Term, 2014




the interpretation was “pure speculation” and was prejudicial because it went to
the essence of the rape conviction.
       {¶ 133} During rebuttal argument, the prosecutor reviewed the taped
phone conversation that Noelle had with Pickens about the rape:


                On the one-party consent call * * * here we go. * * * It is
       Noelle calling Mark Pickens. And talking about when the rape
       happened.
                She says, what does that matter. I am going to tell that you
       raped me, that you had sex with me when I didn’t want you to and
       you beat me up
                Mark Pickens: Man, I did not rape you.
                The next page, and again, I apologize for how graphic this
       is.
                Noelle: So when you nutted me, that’s not going to be
       yours?
                Nutted is slang for ejaculated.
                She says: It is fresh in my panties today.


(Emphasis added.)
       {¶ 134} It was improper for the prosecutor to inject himself into the trial
as a witness. The prosecutor’s definition of the term “nutted” as “slang for
ejaculated” did not deprive Pickens of a fair trial, because it was clear what
Noelle was saying in using that term. (Nut” is vernacular for ejaculation or to
ejaculate. See “Nut,” Urban Dictionary, http://urbandictionary.com/define.php?
term=nut.) Thus, no plain error occurred.
       {¶ 135} Sixth, Pickens argues that the prosecutor denigrated defense
counsel and the defense by stating: “Now, for [Pickens] to tell Detective Gehring




                                         41
                            SUPREME COURT OF OHIO




that he had no idea what that part [of the phone call] was about is ludicrous. It is
not sleep deprivation.”     The prosecutor’s comments responded to defense
arguments that some of Pickens’s incriminatory police statements might have
been a “combination of confusion and sleep deprivation.” The prosecutor argued
that trial counsel’s argument about sleep deprivation was “ludicrous” because
Pickens knew about the rape allegations before the police interview. Noelle had
called Pickens and accused him of raping her soon after it occurred. Thus, the
prosecutor’s characterization that these claims were “ludicrous” represented fair
comment. See State v. Martin, 6th Dist. Erie No. E-11-020, 2013-Ohio-973, ¶ 42
(prosecutor’s references to defendant’s story to police as “ridiculous and
nonsense” borne out by the evidence); State v. Lamb, 12th Dist. Butler Nos.
CA2002-07-171 and CA2002-08-192, 2003-Ohio-3870, ¶ 32-34 (prosecutor’s
reference to defendants’ story as “laughable, ridiculous, and crazy” in outlining
the evidence against the defendants was not abusive or prejudicial). Thus, no
plain error occurred.
       {¶ 136} Seventh, Pickens argues that the prosecutor misstated and
speculated on the evidence in stating: “He goes over there, he uses her own keys
to get in her apartment, they go outside, there is an argument, he sweet talks his
way back in knowing full well what he was going to do. Because no Noelle
Washington means no charges because there is no victim.” Here, the prosecutor
was merely summing up the state’s view of the evidence based on testimony
presented during trial. “A prosecutor may state his or her opinion if it is based on
the evidence presented at trial.” Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900
N.E.2d 565, at ¶ 213. Thus, no plain error occurred.
       {¶ 137} Finally, Pickens argues that the prosecutor committed misconduct
by mentioning the penalty phase during closing arguments: “This evidence is
overwhelming. I would ask you to find him guilty. We will come back in a
couple of days and figure out the appropriate penalty in the penalty phase of this




                                        42
                                 January Term, 2014




trial.”   The trial court sustained a defense objection to these comments and
instructed the jury: “Your job today will be to begin deliberations on the question
of guilt or innocence.”
          {¶ 138} The prosecutor committed misconduct by mentioning the penalty-
phase proceedings during the trial-phase closing argument.               Questions of
punishment have no place in the trial of guilt or innocence. See Brown, 38 Ohio
St.3d at 316, 528 N.E.2d 523; Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986). But the prosecutor’s ill-timed remarks did not
result in reversible error. First, the trial court sustained a defense objection and
told the jurors that their job was to deliberate on the question of guilt or
innocence. Second, the trial court instructed the jurors to decide the verdict on the
evidence alone and explained that the arguments of counsel were not evidence.
Lastly, there was overwhelming evidence of guilt presented against Pickens,
which “ ‘reduced the likelihood that the jury’s decision was influenced by
argument.’ ” Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at
¶ 169, quoting Darden at 182. When viewed in their entirety, the prosecutor’s
improper comments were not prejudicial and did not deny Pickens a fair trial. See
Leonard at ¶ 169; State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767
N.E.2d 166, ¶ 170.
          {¶ 139} Based on the foregoing, we overrule proposition III.
            4. Admissibility of surveillance videos (Proposition of law VII)
          {¶ 140} Pickens argues that the trial court erred by admitting surveillance
videos of the hallway outside his apartment and other locations around Gateway
Plaza from May 31 through June 2, 2009. Pickens argues that the videos had
been spliced together and were not properly authenticated.
                                a. Surveillance videos
          {¶ 141} During the state’s case-in-chief, Layne Hurst, the property
manager at Gateway Plaza apartments, testified that he maintained the




                                          43
                             SUPREME COURT OF OHIO




surveillance cameras at Gateway Plaza. Hurst testified that Gateway Plaza had
“eight different DVRs totaling somewhere over 140 cameras that encompass the
entire property.” He stated that “the DVRs actually do the work themselves. We
just have the guards checking them daily.”
       {¶ 142} Over defense objection, the state presented the surveillance video
taken outside Pickens’s apartment on May 31. This video showed Noelle entering
Pickens’s apartment at 10:38 a.m. and coming out of his apartment, pulling up her
pants, at 12:18 p.m. The video also showed Noelle seeking help from a neighbor,
then returning to Pickens’s apartment and struggling with him in the hallway.
Finally, the video showed Noelle returning to the neighbor’s apartment, Pickens
leaving his, and police officers arriving at the scene.
       {¶ 143} Over defense objection, the state also presented a surveillance
video that spliced together different surveillance videos with time displays at
Gateway Plaza for June 1 and 2.          This video showed that Pickens left his
apartment at 7:33 a.m., that two police officers arrived and left a business card in
his door at 10:44 a.m., and that Pickens arrived home and discovered the card in
his door at 10:32 p.m. This video showed the timing of Pickens’s movements as
he left his apartment, entered the elevator, walked through the lobby, and rode
away on his bicycle. The video also showed when Pickens returned to Gateway
Plaza on his bicycle.
       {¶ 144} As to the spliced video, Hurst testified that he knew the different
routes that Pickens could take from his apartment to the outside and only had to
search five to ten different cameras. He obtained multiple DVDs from these
cameras and provided them to the police. Hurst testified that the police spliced
together multiple clips into a single disc “in an effort to make it better for a
viewing audience.” Hurst reviewed this disc with the police and testified that it
represented a true and accurate reflection of the various discs that he provided to
the police.




                                          44
                               January Term, 2014




       {¶ 145} Trial counsel objected to State’s Exhibit 24B because there was a
discrepancy on the times shown on the video. The outside surveillance video
showed that Pickens returned to the Gateway Plaza on his bicycle at 12:04 a.m.,
while the hallway video showed that Pickens returned to his door at 11:58 p.m.
Hurst explained the discrepancy by stating that “when the actual computers were
installed * * * by ADT they left it at whatever time they currently had on the
computers whenever they were initially installed and never changed back. That
would create a time lapse in between each DVR, depending on when it was
installed.” Over defense objection, Gehring testified that he used his watch to
reconcile the times. Gehring explained, “I wrote down the times the computer
said, and I wrote down what time my watch said.” He then determined that the
clock for the outside video was five minutes fast and the clock for the video
outside Pickens’s apartment was two minutes slow.
                                b. Possible waiver
       {¶ 146} The state argues that the defense waived any objection to the
admissibility of the videos when trial counsel failed to renew its objection to the
videos before they were admitted. Thus, the state argues that any error should be
reviewed on the basis of plain error. See State v. Childs, 14 Ohio St.2d 56, 236
N.E.2d 545 (1968), paragraph three of the syllabus.
       {¶ 147} The record shows that the trial court overruled the defense
objection to the videos but offered counsel additional time to review the source
tapes. Trial counsel responded, “Mr. Pickens would like to go forward” and
declined the offer for additional time. The next day, the trial court asked counsel
if they wanted to renew the objection. Trial counsel replied that Pickens “wants
to go forward with what they have.”
       {¶ 148} We do not view trial counsel’s statements as a waiver of the
defense objection to the tapes. The trial court had ruled on Pickens’s objection to
the videos before counsel stated that Pickens wanted to “go forward.” Moreover,




                                        45
                               SUPREME COURT OF OHIO




counsel’s comments were made in the context of Pickens’s decision to proceed
with the trial rather than take additional time to review the source tapes.
                                      c. Analysis
          {¶ 149} Pickens argues that the spliced videos taken on May 31 through
June 2 were not authenticated, but he provides no further argument or case
authority for these claims. State’s Exhibit 31A, the video taken outside Pickens’s
hallway on May 31, was not a spliced video. Thus, Pickens does not appear to be
arguing that the trial court erred in admitting this video.
          {¶ 150} Evid.R. 901(A) provides, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what the proponent
claims.” In Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121,
753 N.E.2d 98 (1991), we held:


                 “The admissibility of photographic evidence is based on
          two different theories.   One theory is the ‘pictorial testimony’
          theory. Under this theory, the photographic evidence is merely
          illustrative of a witness’ testimony and it only becomes admissible
          when a sponsoring witness can testify that it is a fair and accurate
          representation of the subject matter, based on that witness’
          personal observation.     * * *    A second theory under which
          photographic evidence may be admissible is the ‘silent witness’
          theory. Under that theory, the photographic evidence is a ‘silent
          witness’ which speaks for itself, and is substantive evidence of
          what it portrays independent of a sponsoring witness.”


Id. at 129-130, quoting Fisher v. State, 7 Ark.App. 1, 5-6, 643 S.W.2d 571
(1982).




                                            46
                               January Term, 2014




        {¶ 151} Here, the videos were admissible under the “silent witness”
theory. Hurst testified from personal knowledge about the installation of the
surveillance system, the positioning of the cameras, and the method used for
recording the video taken inside and outside the apartment building. No expert
was required to substantiate the reliability of the surveillance system.        See
Midland at 130. Moreover, Pickens does not argue on appeal that there is any
defect as to what was depicted in the footage. Under these circumstances, the
state adequately showed the reliability of the surveillance system and the videos
produced by it. Thus, the surveillance videos were properly authenticated. See
State v. Green, 7th Dist. Mahoning No. 12 MA 226, 2014-Ohio-648, ¶ 12-14
(surveillance video admissible under the “silent witness” theory); State v. Freeze,
12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 67 (same).
        {¶ 152} Pickens does not explain his objection to the authenticity of
State’s Exhibit 24B, which spliced together surveillance videos showing the time
and progression of Pickens’s movements on June 1 and June 2.               Counsel
complained at trial that the state had never disclosed that the video was a spliced
version of events. The trial court replied, “I don’t know how you cannot know
that that was spliced from other recordings that were made because it shows—it
takes him outside the building.” But Pickens raises no objections on appeal about
the state’s failure to notify the defense that the videotape was spliced. Thus, we
reject this claim.
        {¶ 153} As a final matter, counsel argued at trial that State’s Exhibit 24B
should not have been admitted because of the time discrepancy.             Gehring
reconciled these times using his watch. Pickens does not argue that Gehring’s
testimony was inaccurate. In any event, any objections Pickens may have as to
the timing system or other quality problems with the video go to its weight, not its
admissibility. See State v. McClellan, 3d Dist. Allen No. 1-09-21, 2010-Ohio-




                                        47
                             SUPREME COURT OF OHIO




314, ¶ 73-74 (objections to videotape on grounds that it was of poor quality and
had been shortened pertained to weight of evidence, not admissibility).
       {¶ 154} Based on the foregoing, we overrule proposition VII.
          4. Admissibility of Noelle’s statements under Evid.R. 804(B)(6)
             and sufficiency of the evidence of the R.C. 2929.04(A)(3)
                        specification (Proposition of law VI)
       {¶ 155} Pickens challenges the sufficiency of the evidence to prove his
guilt of the witness-murder specification, R.C. 2929.04(A)(8), that was charged in
Specification 2 of Count Two (the aggravated murder of Noelle).
       {¶ 156} We first note that Specification 2 of Count Two did not charge
Pickens with committing the witness-murder specification under R.C.
2929.04(A)(8).    Rather, Specification 2 charged Pickens with the escaping-
detection specification under R.C. 2929.04(A)(3). Specification 2 followed the
statutory language in R.C. 2929.04(A)(3) and charged that “MARK PICKENS
committed the offense for the purpose of escaping detection or apprehension or
trial or punishment for another crime committed by him, to wit: RAPE (2907.02
ORC).” Thus, the sufficiency of the evidence as to Specification 2 must be
viewed in terms of the R.C. 2929.04(A)(3) specification.
       {¶ 157} Pickens asserts that Noelle’s statements to the police and other
witnesses, her text messages, and her phone calls were improperly admitted under
Evid.R. 804(B)(6). Pickens argues that absent this hearsay, there is insufficient
evidence to support the findings of guilt as to this specification.
                   a. Evidence admitted under Evid.R. 804(B)(6)
       {¶ 158} Under Evid.R. 804(B)(6), a statement offered against a party is
not excluded as hearsay if the declarant is unavailable as a witness and “the
unavailability of the witness is due to the wrongdoing of the party for the purpose
of preventing the witness from attending or testifying.” See State v. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84. To be admissible under




                                          48
                                January Term, 2014




Evid.R. 804(B)(6), the offering party must show by a preponderance of the
evidence: “(1) that the party engaged in wrongdoing that resulted in the witness’s
unavailability, and (2) that one purpose was to cause the witness to be unavailable
at trial.” 2001 Staff Notes, Evid.R. 804(B)(6); Hand at ¶ 84-87.
       {¶ 159} The purpose prong of the forfeiture-by-wrongdoing doctrine was
reviewed by the United States Supreme Court in Giles v. California, 554 U.S.
353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). Giles examined the common-
law roots of the doctrine and concluded that this “exception applie[s] only when
the defendant engaged in conduct designed to prevent the witness from
testifying.” (Emphasis sic.) Id. at 359. Accordingly, “ ‘unconfronted testimony
[will] not be admitted without a showing that the defendant intended to prevent
[the] witness from testifying.’ ” (Emphasis sic.) State v. Fry, 125 Ohio St.3d
163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 106, quoting Giles at 361. Giles does
not require that this be a defendant’s sole or even his primary purpose; it is
sufficient if one purpose for the defendant’s conduct was to make the victim
unavailable.   See State v. Supanchick, 245 Or.App. 651, 658, 263 P.3d 378
(2011); Hand at ¶ 90.
                              (1) Evidentiary hearing
       {¶ 160} The prosecution filed a pretrial notice of its intent to offer
Noelle’s statements under Evid.R. 804(B)(6). Before admitting these statements,
the trial court conducted an evidentiary hearing. The trial court also considered
Noelle’s recorded police interview and the recorded phone call that Noelle made
to Pickens while she was at the police station.
       {¶ 161} During the evidentiary hearing, Detective Schroder testified that
he interviewed Noelle shortly after she reported being raped on May 31. Noelle
told Schroder that she had gone to see Pickens at his apartment. Noelle stated that
she told Pickens she did not want to have sex after they had been “wrestling
around on the bed” and he became “too aggressive.” Pickens had pulled a gun out




                                         49
                             SUPREME COURT OF OHIO




of the dresser, forcibly removed her clothing, and raped her. Noelle told Pickens
afterwards that she was calling the police, and Pickens took Noelle’s phone to see
who she called.
       {¶ 162} The transcript of Noelle’s recorded phone conversation with
Pickens showed his awareness that Noelle had called the police. Pickens accused
Noelle of putting out a warrant on him and said, “You was talking to them. You
told them everything.” Pickens added, “I guess you told police that * * * I raped
you?” Noelle denied talking to the police. But Pickens replied, “And you did tell
the police that because you was on the phone talking to my momma and * * * the
police was right there.”
       {¶ 163} Jenkins, Tamika, Tanisha, Gwendolyn, Derrick, and Lewis all
testified that Noelle told them that Pickens had raped her. Tamika also testified
that she called Noelle’s phone number and talked to a person she thought was
Pickens. Tamika told him, “You are going to jail,” and he replied, “That’s okay,
because if I go to jail, then I am going to fuck her up.”
       {¶ 164} Schroder testified that he went to Pickens’s apartment on June 1
to interview him. Pickens was not home, so Schroder left his business card in the
door with a note asking Pickens to contact him. Gehring stated that a surveillance
video showed Pickens returning to his apartment on the night of the murders and
looking at the business card left in his door. Pickens then left the apartment on
his bicycle and returned around midnight.
       {¶ 165} Crystal Lewis testified that on the evening of the murders, Noelle
texted her and stated that Pickens was coming through the kitchen. Lewis then
went to Noelle’s apartment to get her daughter, Sha’railyn, who was staying there.
Lewis arrived at the apartment about ten minutes later and found that Noelle,
Sha’railyn, and Anthony had been shot to death.
       {¶ 166} Gehring executed a search warrant of Pickens’s apartment after
the murders. Evidence was collected linking Pickens to the murders, including




                                          50
                                January Term, 2014




Noelle’s credit card, Anthony’s social security card, and .45-caliber ammunition.
The bicycle and the jacket Pickens was wearing when he left his apartment were
also seized. Gehring stated that several areas on the bicycle and the sleeves and
cuffs on the jacket later testified positive for the presence of gunshot residue.
       {¶ 167} Gehring testified that Palmer told him that Pickens had asked her
to beat up a girl that was trying to get him arrested for rape. Gehring also spoke
to witnesses who were across the street from Noelle’s apartment on the night of
the murder. They saw Noelle arguing with a man on the street and saw them walk
into Noelle’s apartment. They then heard gunshots. Ronelle Harris identified
Pickens as the person arguing with Noelle.
       {¶ 168} Gehring also interviewed Pickens.            Pickens proclaimed his
innocence and stated that he had spent the entire evening in his apartment on the
night of the murders.
       {¶ 169} At the end of the evidentiary hearing, the trial court made the
following ruling:


               All right.    I listened to the testimony.      I do find the
       witnesses to be credible as to what Noelle Washington said, and so
       I do find that the state can get this evidence in. I find that beyond a
       preponderance or by a preponderance that the defendant engaged
       in wrongdoing that resulted in the witness’ unavailability and one
       of the purposes was to make the witness unavailable for trial.
               So there are certainly questions raised as to whether the
       police officers at the time really believed her. They questioned her
       statement and tested her but that is not as much an issue as the fact
       that they have proven beyond almost any doubt, certainly by a
       preponderance at this point in time.
               You will be able to get into the evidence at trial.




                                          51
                            SUPREME COURT OF OHIO




                                   (2) Analysis
        {¶ 170} The evidence presented during the hearing established by a
preponderance of the evidence that (1) Noelle was unavailable as the result of
Pickens’s wrongdoing and (2) Pickens engaged in wrongdoing with the purpose
of making Noelle unavailable to testify against him. Pickens argues that the trial
court erred in considering Noelle’s testimony to decide whether it was admissible
because there were too many inconsistencies to make it reliable.
        {¶ 171} The admissibility of Noelle’s statements was governed by Evid.R.
104(A). See 2001 Staff Notes Evid.R. 804(B)(6). Evid.R. 104(A) provides that
all preliminary questions concerning the admissibility of evidence shall be
determined by the court, and “[i]n making its determination [the court] is not
bound by the rules of evidence except those with respect to privileges.” Thus, the
trial court could consider hearsay evidence, including Noelle’s own out-of-court
statements. See Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006), citing Commonwealth v. Edwards, 444 Mass. 526, 545, 830
N.E.2d 158 (2005); Jenkins v. United States, 80 A.3d 978, 996 (D.C.2013) (court
may consider substance of proffered hearsay in determining whether hearsay
exception applies); Vasquez v. People, 173 P.3d 1099, 1105 (Colo.2007) (hearsay
statements of unavailable victim admissible in forfeiture-by-wrongdoing
evidentiary hearing).
        {¶ 172} The testimony showed that Pickens knew that Noelle had called
the police and reported the rape and the beating. Pickens accused Noelle of
telling the police “everything” and wanted to know whether there was a warrant
out for his arrest.
        {¶ 173} Second, the evidence established that Pickens intended to harm
Noelle to keep her from testifying against him. Pickens asked Palmer “to go beat
a girl up” who had accused him of rape, and Pickens was carrying a handgun




                                        52
                               January Term, 2014




when he talked to her. Pickens also told Tamika that “if I go to jail, then I am
going to fuck her up.”
       {¶ 174} Finally, the evidence showed that Pickens killed Noelle after he
learned that the police were looking for him. On the day of the murders, Pickens
returned to his apartment and found the card that the police had left in his door
asking Pickens to call them. Surveillance video showed that Pickens then left his
apartment on his bicycle, returning shortly after the murders had occurred. Noelle
sent Lewis a text stating that Pickens was coming through her kitchen shortly
before she was shot. Other witnesses saw Pickens and Noelle arguing outside her
apartment during that time frame. In addition, property seized from Pickens’s
apartment after the murders and other forensic evidence linked Pickens to the
murders.
       {¶ 175} Nevertheless, Pickens argues that the trial court should not have
admitted Noelle’s statements under the forfeiture-by-wrongdoing exception
because there were discrepancies and inconsistencies in Noelle’s statements that
made them unreliable. Other evidence showed that Noelle was untruthful in
telling the police that she was six months pregnant and that Pickens was the father
of her unborn child, that she was wearing only a t-shirt when she left Pickens’s
apartment, and that Pickens had hit her approximately 25 times. In addition,
Noelle told the police that she had gone to Pickens’s apartment to have sex, told
her mother that she had gone to collect money, and told Lewis that her purpose
was to talk to Pickens.
       {¶ 176} Noelle was untruthful about being pregnant, and there were other
discrepancies in her statements about what happened. But Noelle was consistent
in telling the police and numerous friends and family members that Pickens had
raped her at his apartment on May 31. The decision to admit Noelle’s statements
was within the trial court’s discretion. See Hand, 107 Ohio St.3d 378, 2006-
Ohio-18, 840 N.E.2d 151, at ¶ 92; State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d




                                        53
                             SUPREME COURT OF OHIO




343 (1987), paragraph two of the syllabus (the admission of relevant evidence
rests in the sound discretion of the trial court). Thus, we conclude that the trial
court did not abuse its discretion in admitting Noelle’s statements under Evid.R.
804(B)(6).
         {¶ 177} Next, Pickens claims that the trial court did not consider his
claims of innocence before admitting Noelle’s statements under Evid.R.
804(B)(6).     During his recorded phone conversation with Noelle, Pickens
repeatedly denied raping or hitting Noelle. The record shows that the trial court
was presented with the transcript of the telephone conversation before ruling on
the admissibility of Noelle’s statements.      The trial court also heard other
testimony that called Pickens’s credibility into question.        During a police
interview after the murders, Pickens claimed that he had never left his apartment
on the night of the murders and stated that he did not have any ammunition in his
apartment. But surveillance video showed Pickens leave his apartment about
10:30 p.m. on the night of the murders, and the police found .45-caliber
ammunition during the search of Pickens’s apartment. Thus, this claim also lacks
merit.
         {¶ 178} Finally, Pickens argues that Noelle’s statements were not
admissible because he had not been charged with rape at the time of the murders.
But Evid.R. 804(B)(6) “ ‘extends to potential witnesses.’ ” Hand, 107 Ohio St.3d
378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 90, quoting 2001 Staff Notes, Evid.R.
804(B)(6); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996) (rule
applies with “equal force if a defendant intentionally silences a potential witness”
[emphasis sic]). Thus, the fact that no charges were pending against Pickens at
the time he killed Noelle did not preclude the admissibility of Noelle’s statements.
         {¶ 179} Based on the foregoing, we conclude that the trial court did not
abuse its discretion in ruling that Noelle’s statements were admissible under
Evid.R. 804(B)(6).




                                        54
                                January Term, 2014




      b. Sufficiency of the evidence of the R.C. 2929.04(A)(3) specification
       {¶ 180} The standard when testing the sufficiency of the evidence “ ‘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. McKnight, 107 Ohio St.3d 101,
2005-Ohio-6046, 837 N.E.2d 315, ¶ 70, quoting State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “[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, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph
one of the syllabus.
       {¶ 181} R.C. 2929.04(A)(3) provides that the death penalty may be
imposed when it is proven beyond a reasonable doubt that the offense “was
committed for the purpose of escaping detection, apprehension, trial, or
punishment for another offense committed by the offender.” The defendant’s
commission of the prior offense constitutes an essential element of the (A)(3)
specification. See State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163
(2001). Here, Pickens was charged with escaping detection or apprehension for
committing rape.
              (1) Sufficiency when Noelle’s statements are included
       {¶ 182} We will first determine whether the evidence was sufficient to
establish Pickens’s guilt of the R.C. 2929.04(A)(3) specification beyond a
reasonable doubt when that evidence includes Noelle’s statements. First, the jury
found Pickens guilty of rape in Count One, and the evidence shows that the jury
could reasonably reach this verdict. Noelle reported that Pickens had raped her
almost immediately after the rape occurred. She described the rape in great detail.
Other evidence also corroborated her accusations, including a surveillance video
showing Noelle exiting Pickens’s apartment in disarray, Tucker’s testimony that




                                         55
                             SUPREME COURT OF OHIO




Noelle beat on her door and pleaded for help, and testimony from other friends
and family members that Noelle had told them that Pickens had raped her.
       {¶ 183} Noelle’s physical examination and DNA evidence provided
additional evidence that she had been raped. Ferrara, the sexual-assault nurse
examiner, examined Noelle after the rape. Ferrara observed swelling and a bite
mark on Noelle’s upper lip, lacerations on Noelle’s neck, chest, and shoulder, bite
marks on her chest and thigh, and bruises on her inner calf and left knee. Ferrara
concluded that these injuries were “consistent with someone that is not * * *
having consensual sex.” Testing also established that DNA extracted from the
vaginal swab collected during the rape exam matched the DNA profile of Pickens.
       {¶ 184} Second, the jury could reasonably conclude that Pickens killed
Noelle at least in part “for the purpose of escaping * * * trial, or punishment” for
the rape. Pickens knew that Noelle had called police and reported that he had
raped her. During the recorded telephone conversation, Pickens accused Noelle
of putting out a warrant on him. He said, “You was talking to them. You told
them everything.”     Pickens also added, “I guess you told police that too, that I
raped you?”     Moreover, Palmer’s and Tamika’s testimony demonstrated that
Pickens intended to harm Noelle to keep her from testifying. Pickens asked
Palmer to beat up a girl who had accused him of rape, and he told Tamika that “if
I go to jail, I am going to fuck her up.”
       {¶ 185} Other evidence also showed that Pickens killed Noelle after he
learned that the police were looking for him.       A surveillance video showed
Pickens returning to his apartment on the night of the murders and looking at a
business card that the police left in his door. The video then showed Pickens
leaving his apartment on his bicycle and returning around midnight. The timing
of Pickens’s departure and return coincided with the murders.
       {¶ 186} Third, the evidence established that Pickens had committed the
murders. Crystal Lewis testified that Noelle texted her and stated that Pickens




                                            56
                                January Term, 2014




was coming into the apartment shortly before the murders. Ronell Harris testified
that at 11:40 p.m. on June 1, he saw Noelle and a man he later identified as
Pickens outside Noelle’s apartment. Cynthia Evans also testified that she saw a
man and woman arguing in front of Noelle’s apartment that evening. She then
saw them enter the apartment and heard gunshots shortly thereafter.           Other
evidence also linked Pickens to the murders. Noelle’s credit card, Anthony’s
social security card, a bicycle, the jacket that Pickens was wearing on the night of
the murders, and .45-caliber ammunition were collected from Pickens’s
apartment. The victims were killed by .45-caliber ammunition. Forensic tests
showed that gunshot residue was found on Pickens’s jacket and parts of the
bicycle. Finally, Lee testified that Pickens admitted that he had committed the
murders.
       {¶ 187} Based on these facts, the jury could reasonably conclude that
Pickens killed Noelle at least in part to keep her from pursuing the rape charge
against him. Thus, we conclude that the evidence supports the jury’s finding of
guilt as to Specification 2 of Count Two. See State v. Wiles, 59 Ohio St.3d 71, 85,
571 N.E.2d 97 (1991) (where accused kills the only witness to his crime, there
exists sufficient circumstantial evidence that the act was undertaken for the
purpose of avoiding detection).
                    (2) Sufficiency without Noelle’s statements
       {¶ 188} Even if we assume that Noelle’s statements were not admissible
under Evid.R. 804(B)(6), we hold that their admission was harmless beyond a
reasonable doubt. Other properly admitted evidence established that Pickens was
guilty of the (A)(3) specification.
       {¶ 189} Some of Noelle’s statements were admissible under other rules of
evidence. Noelle’s statements to Tucker immediately following the rape were
admissible as an excited utterance under Evid.R. 803(2), including her statement




                                        57
                               SUPREME COURT OF OHIO




that Pickens “had a gun and that he raped her.” See Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 100.
       {¶ 190} Noelle’s statements to Ferrara during her physical examination
were also admissible. See Evid.R. 803(4). Ferrara, the examining nurse, could
testify that Noelle told her that she went to Pickens’s apartment, that he insisted
on having sex, and that he forced her to have sex after she said no. Ferrara could
also testify about the injuries she observed during her examination of Noelle that
were “consistent with someone that is not * * * having consensual sex.”
       {¶ 191} Other admissible evidence included Tamika’s and Palmer’s
testimony showing that Pickens knew that Noelle had told the police about the
rape and intended to harm Noelle. In addition, the surveillance videos, testimony
that Pickens and Noelle were observed arguing outside her apartment shortly
before the murders, items collected from Pickens’s apartment linking him to the
murders, forensic evidence, and Lee’s testimony all provided overwhelming
evidence of Pickens’s guilt as to Specification 2 of Count Two.
       {¶ 192} Based on the foregoing, we reject proposition VI.
            5. Sufficiency of the evidence of the rape and aggravated-
                      murder counts (Proposition of law IX)
       {¶ 193} Pickens challenges the sufficiency of the evidence for his
convictions of aggravated murder and rape. As discussed in proposition of law
VI, Noelle’s statements, Pickens’s statements, items seized from his apartment,
and circumstantial and forensic evidence were sufficient to prove beyond a
reasonable doubt that Pickens was guilty of raping Noelle and of committing the
three aggravated murders.        Pickens makes several claims challenging the
sufficiency of the evidence.
       {¶ 194} First, Pickens argues that the evidence failed to establish that he
engaged in a “sexually-related encounter” with Noelle on May 31. The contrary
evidence is overwhelming. Noelle reported the rape almost immediately after it




                                        58
                                January Term, 2014




occurred.   Surveillance video showed Noelle leaving Pickens’s apartment in
disarray and seeking help from a neighbor. Moreover, Ferrara examined Noelle a
short time after the rape occurred and observed numerous injuries that
corroborated Noelle’s accusations. Tests showed that DNA extracted from the
vaginal swabs collected during the rape exam matched Pickens.
       {¶ 195} Pickens emphasizes that he denied raping Noelle. But the weight
and credibility of the evidence are left to the trier of fact. State v. Waddy, 63 Ohio
St.3d 424, 430, 588 N.E.2d 819 (1992). Pickens’s denial does not render the
evidence of his guilt insufficient. Here, the evidence was such that the jury could
reject Pickens’s claims and find beyond a reasonable doubt that Pickens was
guilty of raping Noelle. Thus, we reject this claim.
       {¶ 196} Second, Pickens argues that “nothing” demonstrates that he
murdered Noelle and the two children. Pickens contends that hearsay testimony
admitted pursuant to Evid.R. 804(B)(6) was the primary evidence used to find
him guilty. He also asserts that Noelle’s statements were inconsistent and were
insufficient for the jury to find him guilty of the murders.
       {¶ 197} As discussed in proposition VI, Noelle’s statements were
admissible under Evid.R. 804(B)(6).        There were inconsistencies in Noelle’s
statements, but “[i]t was up to the jurors to weigh these inconsistencies and assess
the witnesses’ credibility.” Williams, 79 Ohio St.3d at 10, 679 N.E.2d 646.
Despite some discrepancies, the jury accepted the testimony of the state’s
witnesses and Noelle’s statements. Furthermore, a review of the entire record
shows that the testimony and Noelle’s statements were neither inherently
unreliable nor unbelievable. See State v. Drummond, 111 Ohio St.3d 14, 2006-
Ohio-5084, 854 N.E.2d 1038, ¶ 201-202. Thus, we also reject this challenge to
the sufficiency of the evidence.
       {¶ 198} Based on the foregoing, we overrule proposition of law IX.




                                          59
                            SUPREME COURT OF OHIO




                       B. Ineffective assistance of counsel
       {¶ 199} In proposition of law IV, Pickens raises various claims that his
counsel provided ineffective assistance during both phases of the trial. Reversal
of a conviction for ineffective assistance requires that the defendant show, first,
that counsel’s performance was deficient and, second, that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph two of the syllabus.
                        1. Failure to call an alibi witness
       {¶ 200} Pickens asserts that his counsel were ineffective by failing to call
his mother, Truvena Griffin, as an alibi witness. Pickens claims that Griffin
would have provided him with an alibi as to his whereabouts at the time of the
murders.
       {¶ 201} On April 5, 2010, the defense filed a pretrial notice of an alibi
defense, stating: “On the night of June 1, 2009, from 10:37 p.m. until 11:58 p.m.,
Mark Pickens was either going directly to, coming directly from, or present at his
mother, Truvena Griffin’s home located at 711 Derrick Turnbow St.; Cincinnati,
Ohio 45214.” On April 14, 2010, the trial court filed an entry stating, “Upon
motion of defendant, Mark Pickens, his notice of alibi previously filed on April 5,
2010, is hereby withdrawn on April 9, 2010 before start of voir dire.” Pickens’s
and counsel’s signatures appear on the entry.
       {¶ 202} Pickens alleges that his mother’s testimony would have shown
that he was at another location at the time of the murders. Nothing in the record
indicates that Griffin could have supported Pickens’s alleged alibi. This claim
rests on mere speculation and is insufficient to establish ineffective assistance.
See State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119.




                                        60
                                  January Term, 2014




          {¶ 203} Moreover, “counsel’s decision whether to call a witness falls
within the rubric of trial strategy and will not be second-guessed by a reviewing
court.”      Treesh, 90 Ohio St.3d at 490, 739 N.E.2d 749. The proposed alibi
testimony was contradicted by other evidence, including three witnesses who
placed Pickens at or near Noelle’s apartment at the time of the murders. In
addition, property seized during a search of Pickens’s apartment and forensic
evidence directly linked Pickens with the murders.             It would have been
devastating to Pickens had counsel called an ineffective alibi witness, enabling the
prosecution to discredit this line of defense.       See State v. Baker, 12th Dist.
Clermont No. CA2005-11-103, 2006-Ohio-5507, ¶ 9.               Given such evidence,
counsel were not ineffective by failing to call this alibi witness.
          2. Failure to ask a juror follow-up questions about the death penalty
                         and failure to challenge a biased juror
          {¶ 204} Pickens argues that trial counsel were ineffective by failing to
effectively question juror Carroll about his views favoring the death penalty.
Pickens also contends that that counsel were ineffective by leaving Carroll on the
jury because he made racially biased statements about young black men.
          {¶ 205} This court has consistently declined to “second-guess trial
strategy decisions” or impose “hindsight views about how current counsel might
have voir dired the jury differently.” State v. Mason, 82 Ohio St.3d 144, 157, 694
N.E.2d 932 (1998). “[C]ounsel is in the best position to determine whether any
potential juror should be questioned and to what extent.” State v. Murphy, 91
Ohio St.3d 516, 539, 747 N.E.2d 765 (2001).
          {¶ 206} First, Pickens claims that counsel should have conducted further
questioning to show his views favoring the death penalty. Carroll answered that
he had “no problem” with the death penalty on his questionnaire. During voir
dire, Carroll stated his views on the death penalty: “I feel it is an unfortunately
necessary tool in our society. There are some people that need to be removed




                                           61
                            SUPREME COURT OF OHIO




from society. I don’t have any trouble with it. If they have committed a crime
that, as you say, meets the specifications, I wouldn’t have any trouble at all.”
Carroll also told the prosecutor that he could choose between the life and death
options and would follow the law given by the judge.
       {¶ 207} Carroll’s views about the death penalty were set forth on his
questionnaire and in response to the prosecutor’s questioning. Pickens does not
explain what additional questions counsel should have asked. Counsel “need not
repeat questions about topics already covered by * * * opposing counsel or the
judge.” State v. Watson, 61 Ohio St.3d 1, 13, 572 N.E.2d 97 (1991). Nothing in
the record suggests that further questioning would have elicited new information.
Thus, we conclude that counsel were not ineffective by failing to ask Carroll
further questions about his views on the death penalty.
       {¶ 208} Second, Pickens argues that Carroll’s position favoring the death
penalty means that he should have been dismissed to ensure a fair trial. Carroll
stated, however, that he could consider life sentences and would follow the law in
considering whether to impose a death sentence. These answers show that Carroll
would not automatically vote for death, and a challenge for cause would not have
been granted.   Thus, counsel was not ineffective by failing to make such a
challenge. See Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, at
¶ 81-82.
       {¶ 209} Third, Pickens argues that trial counsel should have challenged
Carroll because he made racially biased statements. The questionnaire asked, “Is
there any racial or ethnic group that you do not feel comfortable being around?”
Carroll answered “yes,” and explained: “Young black men with their pants down
to their knees.” The questionnaire also asked, “Have you ever had a negative or
frightening experience with a person of another race?” Carroll answered “yes,”
and explained: “At a gas station – black man appeared – ‘Give me your wallet or
die right here.’ ” Another question asked for thoughts on “the issue of racial




                                        62
                                 January Term, 2014




discrimination against African-Americans in our society.”           From the several
options offered as answers, Carroll chose the one that read “[a] very serious
problem.”
       {¶ 210} During voir dire, the prosecutor asked Carroll about the robbery.
Carroll stated that the robbery occurred at a gas station in “1970, late ‘60s.”
Carroll said that a young man had pointed a gun at him and threatened to kill him
if he did not turn over his wallet. Carroll gave the man his wallet, and the robber
fled. Carroll notified the police but was unable to provide them with enough
information to conduct an investigation.         Carroll was not asked about his
comment regarding “[y]oung black men with their pants down to their knees.”
       {¶ 211} “The conduct of voir dire by defense counsel does not have to
take a particular form, nor do specific questions have to be asked.” State v.
Evans, 63 Ohio St.3d 231, 247, 586 N.E.2d 1042 (1992). Moreover, we have held
that “[t]he decision to voir dire on racial prejudice is a choice best left to a capital
defendant’s counsel.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842
N.E.2d 996, ¶ 170.
       {¶ 212} Normally, we defer to counsel’s decision on whether to ask a
prospective juror about racial bias. See Hale, 119 Ohio St.3d 118, 2008-Ohio-
3426, 892 N.E.2d 864, at ¶ 218. There appears to be no discernable reason,
however, why counsel would not question Carroll about his racially based
comments to determine whether he was a biased juror. The state also provides no
explanation for this lapse. Thus, we conclude that trial counsel were deficient by
failing to ask further questions about Carroll’s racially based comments.
       {¶ 213} The Strickland test requires a finding of prejudice before this
court can find ineffective assistance. 466 U.S. at 693, 104 S.Ct. 2052, 80 L.Ed.2d
674. To maintain a claim that he was prejudiced by counsel’s failure to challenge
an allegedly biased juror, Pickens “ ‘must show that the juror was actually biased
against him.’ (Emphasis added.)” Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836,




                                          63
                              SUPREME COURT OF OHIO




873 N.E.2d 828, at ¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.
2001).     Although Pickens argues that Carroll was biased against African
Americans, nothing indicates that he was actually biased against Pickens. Under
questioning, Carroll said nothing to indicate that he harbored a racial bias as a
result of the robbery that had occurred in “1970, late ‘60s.” In addition, Carroll’s
comment about “[y]oung black men with their pants down to their knees” does
not necessarily reflect bias against Pickens personally. Whether failure to strike
Carroll from the panel was prejudicial is speculative because it is possible that he
might have been rehabilitated under further questioning. See Hale at ¶ 213.
         {¶ 214} Finally, Pickens argues that counsel were ineffective by failing to
challenge Carroll because he was biased. As discussed, the record does not
establish that a challenge for cause would have been granted.          Pickens also
suggests that counsel should have removed Carroll with a peremptory challenge.
“But ‘ “ ‘[b]ecause the use of peremptory challenges is inherently subjective and
intuitive, an appellate record will rarely disclose reversible incompetence in this
process.’ ” ’ ” Mundt at ¶ 83, quoting People v. Freeman, 8 Cal.4th 450, 485, 34
Cal.Rptr.2d 558, 882 P.2d 249 (1994), quoting People v. Montiel, 5 Cal.4th 877,
911, 21 Cal.Rptr.2d 705, 855 P.2d 1277 (1993). Here, counsel’s decision not to
peremptorily challenge Carroll does not demonstrate “reversible incompetence.”
                    3. Failure to exhaust peremptory challenges
         {¶ 215} Pickens argues that his counsel provided ineffective assistance by
failing to exhaust all of its peremptory challenges. Trial counsel informed the
court:


                Mr. Ancona: At this time we waive also and we would like
         to place [on the] record at this time we discussed this before today
         started, this morning before we started, and again, just this moment
         with our client and he understand[s] that we could exercise a total




                                         64
                                  January Term, 2014




         of six peremptory challenges. He is satisfied with the jury and
         wishes to waive; is that correct, sir?
                The defendant: Yes.


         {¶ 216} Decisions on the exercise of peremptory challenges are a part of
trial strategy. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d
242, ¶ 99. Trial counsel, who observe jurors firsthand, are in a much better
position than a reviewing court to determine whether a prospective juror should
be peremptorily challenged.        Pickens argues that trial counsel should have
peremptorily challenged “pro-death-penalty” Carroll. But, as discussed in the
previous proposition of law, Pickens cannot show that counsel were ineffective by
failing to peremptorily challenge Carroll. Pickens also informed the court himself
that he was satisfied with the composition of the jury and wished to waive the
exercise of further peremptory challenges. Thus, we overrule this ineffectiveness
claim.
             4. Failure to present evidence about adaptability to prison
         {¶ 217} Pickens argues that trial counsel were ineffective by failing to
present any evidence showing his adaptability to prison life. Resolving this claim
in Pickens’s favor would be speculative. Nothing in the record indicates what
evidence could have been presented as to Pickens’s ability to adapt to prison.
Establishing that would require proof outside the record, such as affidavits
demonstrating the probable testimony.             Such a claim is not appropriately
considered on a direct appeal. See State v. Madrigal, 87 Ohio St.3d 378, 391, 721
N.E.2d 52 (2000). Thus, we also reject this ineffectiveness claim.




                                           65
                             SUPREME COURT OF OHIO




             5. Failure to have Pickens evaluated by a neuropsychologist
                    and failure to present psychological evidence
       {¶ 218} Pickens argues that his counsel were ineffective by failing to
request that a neuropsychologist examine him for brain trauma and by failing to
present any psychological evidence during the mitigation phase of the trial.
       {¶ 219} An attorney’s failure to reasonably investigate the defendant’s
background and present mitigating evidence to the jury at sentencing can
constitute ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521-
522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Defense counsel has a duty to
investigate the circumstances of his client’s case and explore all matters relevant
to the merits of the case and the penalty, including the defendant’s background,
education, employment record, mental and emotional stability, and family
relationships.” Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). Pickens
has the burden of demonstrating that his counsel rendered ineffective assistance
by failing to conduct an adequate investigation. State v. Hunter, 131 Ohio St.3d
67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 104, citing Strickland, 466 U.S. at 687,
104 S.Ct. 2052, 80 L.Ed.2d 674. See State v. Herring, ___Ohio St.3d ___, 2014-
Ohio-5228, ___N.E.3d___ (death penalty vacated because of failure to conduct
thorough and adequate mitigation investigation).
       {¶ 220} Pickens argues that counsel were ineffective by failing to have
Pickens examined by a neuropsychologist to detect whether he suffered from
brain damage or some other abnormality. Counsel hired two psychologists and a
psychiatrist. Billing records show that Dr. Brian Masterson, the psychiatrist,
interviewed Pickens four times, reviewed documentation, and met with defense
counsel on two occasions. Billing records also show that Dr. Scott Bressler, one
of the psychologists, interviewed Pickens twice, conducted testing, and met with
defense counsel. Dr. Nancy Schmidtgoessling, another psychologist, was also
consulted.




                                         66
                                January Term, 2014




       {¶ 221} The record does not indicate, beyond the billing statements, the
extent of the psychiatric and psychological evaluations of Pickens’s mental
condition. But it is certainly possible that these experts evaluated Pickens and
decided that a neurological evaluation was unnecessary. We will not infer a
defense failure to investigate from a silent record; the burden of demonstrating
ineffective assistance is on Pickens. Hunter at ¶ 68; Were, 118 Ohio St.3d 448,
2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244. See Herring at ¶ 104. Thus, Pickens
has failed to demonstrate that counsel were deficient by failing to have a
neuropsychologist evaluate him.
       {¶ 222} Next, Pickens argues that trial counsel were ineffective by failing
to present any evidence of his mental status or other psychological testimony
about him during mitigation. “The defense decision to call or not call a mitigation
witness is a matter of trial strategy. * * * Debatable trial tactics generally do not
constitute ineffective assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515,
2006-Ohio-6207, 857 N.E.2d 547, ¶ 116.
       {¶ 223} It is unclear why defense counsel did not present testimony about
Pickens’s psychological status or background during mitigation.          The record
indicates, however, that the decision not to present such evidence was not the
result of an inadequate investigation. See Herring at ___ (mitigation specialist
admits that his investigation was “substandard”).              Counsel hired two
psychologists and a psychiatrist. Thus, Pickens’s counsel would have had ample
information about Pickens’s psychological background to make an informed
decision whether to present such evidence during mitigation.            Accordingly,
counsel’s decision was a matter of trial strategy and does not constitute ineffective
assistance of counsel. See State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47
(1997) (“the presentation of mitigating evidence is a matter of trial strategy”).
       {¶ 224} Pickens includes in the appendix to his brief the affidavit of Dr.
Bob Stinson, a psychologist, and a letter from Dr. Barry Layton, a clinical




                                         67
                             SUPREME COURT OF OHIO




neuropsychologist, which were submitted as part of Pickens’s petition for
postconviction relief, in arguing that counsel were obliged to present expert
psychological testimony during mitigation. Pickens cannot, however, refer to
matters outside the record to support his claim on direct appeal. See Madrigal, 87
Ohio St.3d at 391, 721 N.E.2d 52.
       {¶ 225} In his reply brief, Pickens argues that the American Bar
Association’s guidelines required trial counsel to present psychological testimony
in his behalf. See Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases (Rev.Ed.2003). The ABA guidelines are not
“inexorable demands” with which all capital defense counsel must fully comply.
Bobby v. Van Hook, 558 U.S. 4, 9, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009); State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 183. Moreover,
“[a]ttorneys are not expected to present every potential mitigation theory,
regardless of their relative strengths.” Fears v. Bagley, 462 Fed.Appx. 565, 576
(6th Cir.2012). Thus, trial counsel were not duty-bound to present psychological
testimony during mitigation.
                 6. Failure to present evidence of residual doubt
       {¶ 226} Pickens argues that trial counsel provided ineffective assistance
by raising residual doubt and then failing to present persuasive evidence to
support this claim. In State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112
(1997), syllabus, we held that “[r]esidual doubt is not an acceptable mitigating
factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the
defendant should be sentenced to death.” Id. at syllabus. Residual doubt of guilt
has been defined as “a lingering uncertainty about facts, a state of mind that exists
somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ”
Franklin v. Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)
(O’Connor, J., concurring in judgment).




                                          68
                                January Term, 2014




       {¶ 227} In a pretrial motion, counsel requested that the defense be allowed
to present evidence and argument on residual doubt during mitigation and that the
jury be instructed on residual doubt as a mitigating factor. The trial court denied
this request.   Nevertheless, trial counsel made an argument to the jury that
residual doubt was a reason not to impose death during the mitigation-phase
arguments. Before sentencing, counsel argued to the trial court that “significant
residual doubt * * * must be weighed and considered” before imposing
sentencing. The trial court stated:


                The defense has requested both in writing and verbally that
       I consider residual doubt. I have considered that. I am not sure it
       is appropriate, but * * * to be fair, I have considered the jury was
       given the chance after the guilty verdicts to review the evidence
       again because the request to examine the case as to whether there
       was residual doubt was raised during closing arguments in the
       penalty phase. * * * I have since reviewed the physical evidence
       on several occasions. This is given no weight with me because
       with the facts in evidence in the case, there is no doubt whatsoever
       that the defendant committed these offenses.


       {¶ 228} Even though the court denied a defense motion to present residual
doubt, trial counsel made an argument that the jury and the trial court should
consider residual doubt before imposing the death penalty.        Pickens fails to
explain what else trial counsel could have done in presenting the issue of residual
doubt. Pickens also does not explain how any failure was prejudicial. See
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 203. Thus, he
has failed to demonstrate that counsel were ineffective in presenting such
evidence.




                                        69
                            SUPREME COURT OF OHIO




       {¶ 229} Based on the foregoing, we reject proposition IV.
                               C. Remaining issues
                    1. Cumulative error (Proposition of law X)
       {¶ 230} Pickens argues that cumulative errors committed during the trial
deprived him of a fair trial and require a reversal of his convictions and death
sentence. Under the doctrine of accumulated error, 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 instances of trial-court error does not individually
constitute cause for reversal. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d
1256 (1987), paragraph two of the syllabus; Powell, 132 Ohio St.3d 233, 2012-
Ohio-2577, 971 N.E.2d 865, at ¶ 222-224; State v. Garner, 74 Ohio St.3d 49, 64,
656 N.E.2d 623 (1995).
       {¶ 231} The doctrine of cumulative error is not applicable.          Pickens
received a fair trial. Moreover, none of the errors committed in this case, whether
considered individually or cumulatively, resulted in prejudice. As previously
discussed in other propositions of law, overwhelming evidence was introduced
that established Pickens’s guilt. Thus, proposition X is overruled.
          2. Constitutionality of death penalty (Proposition of law VIII)
       {¶ 232} Pickens challenges the constitutionality of Ohio’s death-penalty
statutes. These claims can be summarily rejected. See Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 215-216; State v. Carter, 89 Ohio St.3d
593, 607, 734 N.E.2d 345 (2000); State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d
264 (1984), paragraph one of the syllabus.
       {¶ 233} In addition, Pickens claims that Ohio’s death-penalty statutes
violate international law and treaties to which the United States is a party. These
arguments lack merit. See State v. Issa, 93 Ohio St.3d 49, 69, 752 N.E.2d 904
(2001); State v. Phillips, 74 Ohio St.3d 72, 103-104, 656 N.E.2d 643 (1995).




                                        70
                                January Term, 2014




           3. Appropriateness of death sentence (Proposition of law V)
       {¶ 234} Pickens argues that the death penalty is not appropriate because
he was only 19 years old when he committed the offenses and because he has a
mother who loves him and who asked the court to spare his life. We shall
consider these arguments during our independent sentence evaluation.
                       IV. Independent Sentence Evaluation
       {¶ 235} Having considered, and rejected, Pickens’s propositions of law,
we must now independently review Pickens’s death sentence for appropriateness
and proportionality.    R.C. 2929.05(A).      In conducting this review, we must
determine whether the evidence supports the jury’s finding of aggravating
circumstances, whether the aggravating circumstances outweigh the mitigating
factors, and whether Pickens’s death sentence is proportionate to those affirmed in
similar cases. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 3 N.E.3d
1051, ¶ 188.
                           A. Aggravating circumstances
       {¶ 236} Pickens was convicted of two death specifications for each of the
three counts of aggravated murder. The jury found that Pickens killed all three
victims as “part of a course of conduct involving the purposeful killing of or
attempt to kill two or more persons by the offender.” R.C. 2929.04(A)(5). As to
Sha’railyn and Anthony, the jury also found violations of R.C. 2929.04(A)(9),
murdering a child under the age of 13. As to Noelle, the jury found a violation of
R.C. 2929.04(A)(3), murder to escape accounting for a crime.
       {¶ 237} First, with respect to Noelle’s murder, Pickens’s actions were
purposeful and were intended to keep her from testifying against him for rape.
The evidence established that Pickens raped Noelle on May 31, 2009. After
Pickens learned that Noelle had notified the police, he then took steps to keep
Noelle from testifying against him by asking Palmer to beat her up. He also told
Tamika that “if I go to jail, I am going to fuck her up.”




                                         71
                              SUPREME COURT OF OHIO




       {¶ 238} On June 1, Pickens learned that the police had been to his
apartment and were looking for him.          He then rode his bicycle to Noelle’s
residence, where witnesses saw Noelle and Pickens talking outside. Noelle also
sent text messages indicating that Pickens was inside her apartment shortly before
the murders occurred.     Surveillance videos, property seized from Pickens’s
apartment after the murders, and other forensic evidence linked Pickens to the
murders. Thus, the evidence at trial supports the jury’s finding of this aggravating
circumstance.
       {¶ 239} Second, the evidence showed that the murders of Noelle,
Sha’railyn, and Anthony were part of a single continuing course of conduct.
Pickens murdered all three victims inside Noelle’s apartment on June 1. Thus, the
killings were directly linked in time and location. See State v. Sapp, 105 Ohio
St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, at syllabus, and ¶ 52 (factors such
as time, location, a common scheme, or a common psychological thread can
establish the factual link necessary to prove a course of conduct). Pickens also
told Lee that he killed Sha’railyn because she knew him and could identify him
and intimated to Lee that he had killed Anthony because he “got a rush out of it.”
Thus, the evidence supports Pickens’s conviction under R.C. 2929.04(A)(5) with
respect to each of the three counts of aggravated murder.
       {¶ 240} Finally, evidence was presented that Sha’railyn was three years
old and Anthony was nine months old at the time of their deaths. Accordingly,
the evidence also supports Pickens’s conviction under R.C. 2929.04(A)(9) for
these two counts of murder.
                               B. Mitigating evidence
       {¶ 241} Against these aggravating circumstances, we must weigh the
mitigating factors contained in R.C. 2929.04(B). During mitigation, the defense
called Truvena Griffin, the defendant’s mother, and Pickens made an unsworn




                                        72
                                 January Term, 2014




statement. Pickens also made a statement in allocution and answered the trial
court’s questions about his background.
                                 1. Griffin’s testimony
        {¶ 242} Griffin testified that Pickens was born when she was 16 years old
and that he is the oldest of her four children. As to her own background, Griffin
stated that her mother was 14 when she was born. Griffin also stated that she was
abused as a child and lived in 15 to 20 different foster homes.
        {¶ 243} Griffin told the families of the victims, “I am sad that this
happened for you. I grieve, and I pray for you and I don’t wish this on any
family.” She also stated, “I love my son. And I beg you to spare his life. It is my
first son.”
                           2. Pickens’s unsworn statement
        {¶ 244} Pickens expressed his sorrow for the death of the three victims but
maintained his innocence:


                I am terribly sorry that Noelle, Sha’railyn, and Anthony
        were killed, but I did not do it. I had no reason to. I would never
        hurt anyone like that.
                        ***
                I don’t want to hurt anyone like that, especially children. I
        have a three year old myself.
                I liked Noelle and I never would have killed her.
                She baby was a part of my life.
                I know the families of Noelle, Sha’railyn, Anthony hate me
        for this. If I did it, I would hate myself, too.
                I was going to school to be a nursing assistant. I wanted to
        help people.




                                           73
                             SUPREME COURT OF OHIO




               I felt worse for my mother than me. She cry all the time.
       She cannot believe that this happened. Either can I. I try to tell
       her not to worry, but how can she when I am so scared. I have a
       hard time showing my emotions, but that don’t mean I don’t care
       what happened.
               I know you believe I did this, but I didn’t.
               I plead, I beg, please, don’t take my life.


                                     3. Allocution
       {¶ 245} Before final sentencing, Pickens continued to maintain his
innocence of the murders, stating:


       Like the family they might think I did this, people might think I did
       it, but I didn’t do this. I had no reason to, nobody to harm, not the
       babies or Noelle Washington. I didn’t have no reason to harm
       none of them. I am innocent. I did not do this.


       {¶ 246} Under the trial court’s questioning, Pickens provided further
information about his background. Pickens was 19 years old when these offenses
occurred. Pickens attended high school to the 12th grade but did not graduate.
Later, he received his GED from Cincinnati State. Pickens has three younger
brothers. Pickens stated that he does not have any children, even though he had
previously stated that he did.
       {¶ 247} Pickens spoke of his work history. In 2008, Pickens worked at
the Family Dollar store for four months. For about a month in 2009, he sorted
mail at the post office. Pickens said that he quit because “I couldn’t stand up the
whole shift. They wanted me to stand up eight hours sorting mail. I couldn’t.”




                                          74
                               January Term, 2014




Pickens then had a temporary job at Today’s Staffing where he worked 30 hours a
week. Pickens worked there until he was arrested.
                             C. Sentence evaluation
       {¶ 248} Nothing in the nature and circumstances of the offenses is
mitigating. Pickens murdered Noelle to keep her from presenting evidence that
he had raped her. Pickens also murdered Anthony Jones III, Noelle’s nine-month
old son, and three-year-old Sha’railyn Wright. These are horrific crimes that lack
any mitigating features.
       {¶ 249} Pickens’s history and background provide little mitigating value.
He was raised by a loving mother. Although he did not finish high school,
Pickens received his GED and was employed.
       {¶ 250} The statutory mitigating factors under R.C. 2929.04(B) include
R.C. 2929.04(B)(1) (victim inducement); (B)(2) (duress, coercion, or strong
provocation); (B)(3) (mental disease or defect); (B)(4) (youth of the offender);
(B)(5) (lack of a significant history of prior criminal convictions and delinquency
adjudications); (B)(6) (accomplice only); and (B)(7) (any other relevant factors).
The factors under (B)(1), (B)(2), (B)(3), and (B)(6) do not appear to be
applicable.
       {¶ 251} Pickens presented no evidence of his criminal record and did not
argue (B)(5) to the judge or jury. The parties stipulated that Pickens had two
separate juvenile adjudications for possession of drugs underlying the weapons-
under-disability charges in Counts Five and Six. In the sentencing opinion, the
trial court stated, “The parties agreed that as a juvenile the defendant was twice
sent to the Department of Youth Services for incarceration. The parties also
agreed that, as an adult, the defendant has one prior misdemeanor conviction for
Unauthorized Use of Property.       The Court gave the defendant’s lack of a
significant prior adult history of criminal convictions some weight even though he
had been an adult only for a short time on June 1, 2009.”




                                        75
                             SUPREME COURT OF OHIO




       {¶ 252} Pickens argues that his youth is a mitigating factor that raises
serious doubt about the appropriateness of the death penalty. Pickens was 19 at
the time of the offenses. We give significant weight to Pickens’s youth pursuant
to R.C. 2929.04(B)(4). We have upheld the death penalty in cases in which the
defendant committed aggravated murder at Pickens’s age or younger. See State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 337 (age 19);
State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 203 (age
18); State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 149
(age 18); and State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26,
¶ 98 (age 18).
       {¶ 253} Pickens argues that this court should consider Griffin’s testimony
that she loves him and that she asked the court to spare his life. We give weight
to the love and support that he shares with his mother as a (B)(7) factor. See
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 327. We
also give weight under (B)(7) to his employment history and the fact that he
earned his GED.
       {¶ 254} Pickens raised residual doubt as a mitigating factor during
mitigation. The evidence established beyond a reasonable doubt, however, that
Pickens murdered Noelle, Anthony, and Sha’railyn. More than that, the evidence
established that Pickens murdered Noelle, Anthony, and Sha’railyn beyond even a
residual doubt, which has been described as a “lingering uncertainty about facts,
a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and
‘absolute certainty.’ ” Franklin v. Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320,
101 L.Ed.2d 155 (1988) (O’Connor, J., concurring in judgment). Thus, we reject
residual doubt as a mitigating factor.
       {¶ 255} In his unsworn statement, Pickens expressed his sorrow for the
deaths of Noelle and the two children.        During his unsworn statement and
allocution, Pickens maintained his innocence, thus denying responsibility for the




                                         76
                               January Term, 2014




murders. Pickens’s denials negate the mitigating weight that we might otherwise
give to his expressions of sorrow. See Maxwell, 139 Ohio St.3d 12, 2014-Ohio-
1019, 9 N.E.3d 930, at ¶ 282; Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, at ¶ 205.
       {¶ 256} Upon independent weighing, we find that the aggravating
circumstances as to each count outweigh the mitigating factors beyond a
reasonable doubt. With respect to Noelle’s murder, the course-of-conduct and the
escaping-detection specifications strongly outweigh the mitigating factors. The
two specifications that apply to Sha’railyn’s and Anthony’s murders—course of
conduct and child murder—overwhelm the mitigating factors. In particular, the
R.C. 2929.04(A)(9) specification is entitled to great weight because it involves the
murder of young and vulnerable victims. See Powell, 132 Ohio St.3d 233, 2012-
Ohio-2577, 971 N.E.2d 865, at ¶ 282.
       {¶ 257} We conclude that the death penalty is appropriate and
proportionate when compared to death sentences approved in similar cases. We
have previously upheld death sentences for a course of conduct under R.C.
2929.04(A)(5). See, e.g., Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911
N.E.2d 242, at ¶ 329; Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151,
at ¶ 284; and Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, at
¶ 182. We have upheld the death penalty for other child murders under R.C.
2929.04(A)(9). See Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d
1051, ¶ 241; Powell at ¶ 284; and Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524,
960 N.E.2d 955, at ¶ 206. We have upheld the death penalty for the escaping-
detection specification under R.C. 2929.04(A)(3). See Bethel, 110 Ohio St.3d
416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 212; State v. Craig, 110 Ohio St.3d
306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 148; and Wilson, 74 Ohio St.3d at 401,
659 N.E.2d 292.




                                        77
                           SUPREME COURT OF OHIO




                                 V. Conclusion
       {¶ 258} We affirm the judgments of conviction and sentence of death.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH,
JJ., concur.
       O’NEILL, J., concurs as to the finding of guilt but dissents as to the
sentence of death for the reasons expressed in State v. Wogenstahl, 134 Ohio
St.3d 1437, 2013-Ohio-164 (O’NEILL, J., dissenting).
                             _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
       Daniel F. Burke Jr. and Roger W. Kirk, for appellant.
                            ___________________




                                       78
