         [Cite as State v. Morrissette, 2018-Ohio-3917.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :      APPEAL NO. C-170426
                                                           TRIAL NO. B-1605788
        Plaintiff-Appellee,                         :
                                                               O P I N I O N.
  vs.                                               :

JOSHUA MORRISSETTE,                                 :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 28, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

       {¶1}    After a jury trial, Joshua Morrissette was convicted of murder and

having weapons while under disability, based on the shooting death of Gregory “G

Baby” Tremble, and drug and weapons offenses, based on contraband the police

found on Morrissette when he was apprehended for Tremble’s murder six months

later. Morrissette now appeals, claiming that his murder conviction was against the

manifest weight of the evidence, and that all of his convictions must be reversed due

to misconduct by the prosecutor, an erroneous jury instruction on flight, defense

counsel’s deficient performance, and the cumulative effect of these alleged errors.

Because we find no reversible error in the proceedings below, we affirm.

                    Shooting Death of Gregory Tremble

       {¶2}    Tremble was shot around 4:45 p.m. on April 16, 2016, in front of his

sister Naicha’s apartment building located at the corner of Vine and Green Streets in

Cincinnati. Forensic evidence from the crime scene demonstrated that the shooting

began when Tremble was on the 1700 block of Vine Street and continued as Tremble

ran in a southwestern direction away from his shooter and to Green Street, where he

succumbed to the injuries sustained from nine gunshot wounds.              The forensic

evidence also showed that the bullets were all fired from the same .40-caliber firearm

of an undetermined make and model.            Although the police recovered 13 spent

casings at the scene and several bullets, the murder weapon was never recovered.

       {¶3}    Tremble was a known street-level drug dealer in the area. At the time

of his death, he had on his person a baggie of marijuana and three white “rocks”

wrapped in plastic that looked like illegal drugs, but tested negative for a drug of

abuse. The police did not recover any weapons on Tremble.




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              Morrissette Identified as the suspect “Psycho”

       {¶4}    As part of the investigation, Detective Bill Hilbert of the Cincinnati

Police Department recovered surveillance video from several cameras set up in the

area, including footage from a “panning” camera focused on the 17oo block of Vine

Street. That camera showed the area in front of Naicha’s apartment and Bill’s

Supermarket next door.      The footage captured at 4:44:50 showed a black man

wearing a short sleeved collared red shirt, a black baseball cap, and white athletic

shoes, who was reaching for something near his right hip while looking at and

walking towards Tremble. Tremble was standing close to where the police recovered

most of the spent casings at the crime scene. The camera panned away from the

scene before the shooting, but another camera showing people running from the area

indicated that the shooting had begun a few seconds after 4:45 p.m. Police cruisers

began arriving on the scene at 4:47 p.m.

       {¶5}     Detective Hilbert later showed the surveillance videos to Chenice

Miller who, at an earlier police interview, had implicated a black male she had seen

on the day of the shooting wearing a red shirt and a baseball cap and whom she had

known for several years by the name “Psycho.” Although the images on the

surveillance video were blurry, Miller identified the man in the short sleeved collared

red shirt with the black cap and white shoes as Psycho. At trial, she identified

Morrissette as that individual.

       {¶6}    According to Miller, shortly before the shooting, she and her

boyfriend Dante Cody had been with Morrissette and a tall black male wearing prom

attire at the apartment she and Cody shared on East McMicken Street, a few blocks

away from Vine and Green Streets.          Morrissette, whose niece lived in the same

building, had washed their dog for $10. When Miller spoke with Morrissette during



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that time, he showed her and Cody a gun and said he was going to “confront”

Tremble, a.k.a. “G Baby.” Morrissette told them he was upset with Tremble because

Tremble had “robbed” someone, either Morrissette or his brother. Morrissette then

left the apartment with “Prom Boy,” later identified as Melvin Summers, to get

“weed.”

       {¶7}    In addition to identifying Morrissette as the man in the red shirt

captured by surveillance video at the crime scene on Vine Street just before the

shooting, Miller identified Morrissette as the individual captured by an East

McMicken Street surveillance camera that day. The first video showed the same man

in red exiting from the courtyard of her apartment building and heading in the

direction of the 1700 block of Vine Street at 4:40:38 with Summers. A later video

began at 4:46:10 and showed that same man in red walking back to her building

alone after the shooting and entering the courtyard of the building at 4:46:41. He

was ambling casually, with his hand at his waist and glancing repeatedly over his

shoulder in the direction of Vine Street.       A CD containing these video sequences

Miller testified about was admitted as an exhibit at trial.

       {¶8}    Cody testified, consistent with Miller’s testimony, that on the day of

Tremble’s shooting, a man he knew as “Psycho” had been in their apartment,

beginning around 3 or 4 p.m., wearing a red “polo-type” shirt. Cody identified

Morrissette as Psycho, and stated that, after washing their dog in the courtyard of the

building, Morrissette had shown them a gun and indicated he was “looking for”

Tremble, a.k.a. “G Baby,” whom Morrissette believed had “robbed” his brother. Cody

took photographs of the gun—a .40-caliber Ruger pistol with an extended clip—using

his smart phone, and posted the photographs on his Facebook page. The police

printed the photographs, taken at 3:50 and 3:51 p.m., and they were admitted as



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exhibits at trial, along with a photograph Cody had taken at 4:31 p.m. of Morrissette’s

companion in prom attire.

       {¶9}       According to Cody, a few minutes before he heard gunshots,

Morrissette had taken the Ruger pistol and left the apartment with Summers to “get

some weed.” Shortly after hearing the gunshots, Cody encountered Morrissette in

the courtyard of the building as Morrissette was returning to his niece’s apartment.

At that time, Morrissette told him that he had shot Tremble.

          Morrissette’s Flight, Concealment, and Apprehension

       {¶10}      Although Morrissette had become a suspect based on the police

investigation, including the interviews of Miller and Cody, the police could not find

him. Records from Morrissette’s former employer, the Society for the Prevention of

Cruelty to Animals, showed that Morrissette had last shown up for his job on April

15, 2016, the day before the shooting.

       {¶11}      The police learned that Morrissette had left town, but had returned to

the area in August 2016. The Fugitive Apprehension Unit tried several times to

apprehend him after a “secret” warrant for his arrest was issued in August 2016. The

police were not successful until October 5, 2016, when Morrissette was spotted as a

passenger in a vehicle. The driver followed an officer’s instruction to pull over, and

Morrissette cooperated by exiting from the vehicle and falling to his knees, allowing

an officer to handcuff him without incident. When Morrissette was searched, the

police found a loaded .40-caliber Glock pistol in a holster on his right hip and some

drugs in his pants pocket and sock. An extended magazine for the Glock was found

in the vehicle.

       {¶12}      Subsequent testing excluded the Glock recovered on Morrissette as

the firearm used to shoot Tremble. But the forensic firearms examiner could not rule



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out as the murder weapon the .40-caliber Ruger pistol that Miller and Cody had seen

Morrissette leave their apartment with minutes before the shooting.

                          Additional Evidence of Guilt

       {¶13}   Morrissette was ultimately indicted on eight counts, including the

aggravated murder of Tremble. While he was held in the justice center awaiting trial,

Morrissette made several incriminating statements in recorded phone calls that

Detective Hilbert had listened to. In some of these phone calls, Morrissette laughed

about how he had evaded apprehension by the police through various methods,

including once hiding in a tree after fleeing the police and, another time, putting

scented substances on his body to avoid alerting police canines that he knew were

searching for him.

       {¶14}   During other phone calls, Morrissette discussed his intention to

“plead insanity” as part of the “game,” calling it “the biggest break a mother*ucker

could push.” These statements referenced a prior conversation Morrissette had had

with Detective Hilbert, during which the detective had explained that Morrissette

could not “plead insanity” without admitting that he had shot Tremble. On another

call, Morrissette tried to disassociate himself from his nickname “Psycho.” The jail

call recordings were admitted into evidence at trial.

       {¶15}   In January 2017, about six months before Morrissette’s trial, Andre

Taylor, then an inmate at the Hamilton County Justice Center, contacted Detective

Hilbert and told him that he had seen a man he knew as “Psycho” shoot Tremble,

a.k.a. “G Baby,” on April 16. At trial, Taylor identified Morrissette as the shooter,

and recalled that at the time of the shooting, Tremble had looked like he was

reaching for something or pulling up his pants. Taylor stated that he had also seen

Morrissette before the shooting, early in the morning of April 16. At that time,



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Morrissette had shown him a .40-caliber handgun and indicated that he was having a

“dispute” with Tremble involving the sale of drugs. Morrissette was angry and said

that if Tremble did not pay him, he would shoot him.

       {¶16}   Taylor further testified that he had seen Morrissette early the next

morning. At that time, Morrissette had told him that he had shot Tremble and that

Tremble had been “reaching” for a gun. Morrissette also had asked for Taylor’s help

locating someone to sell his gun.

       {¶17}   Taylor explained that he was reluctant to come forward because he

had been shot five times after testifying in another case. He decided, however, that

“it was the right thing to do” for Tremble and his family. He admitted that he had

talked to Detective Hilbert about his own case, but made it clear that the state had

made “no promises” to obtain his cooperation.

       {¶18}   Two additional witnesses, Derrel Anderson and Addi Inman, testified

at trial that Morrissette had threatened to harm Tremble, a.k.a. “G Baby,” before the

shooting and had later admitted to shooting him. Anderson contacted Detective

Hilbert with information about the shooting in November 2016, when he was locked

up in the Hamilton County Justice Center on a “parole holder.” Anderson testified

that he had seen Morrissette, whom he knew as “Poppy,” around 4:00 p.m. at a park

on Vine Street about 20 minutes before the shooting. At that time, Morrissette, who

was dressed in black, told him he was going to “kill” Tremble, and Anderson

observed the outline of what appeared to be a “kind of long” gun tucked into

Morrissette’s pants.    Anderson also testified that when he saw Morrissette in jail

after being locked up for a probation violation, Morrissette admitted that he had shot

Tremble.




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       {¶19}    Addi Inman was called as a witness by the court after being declared a

hostile witness for the state.    She had contacted crime stoppers and had given

statements to Detective Hilbert implicating Morrissette at some point during the

investigation, but prior to trial she filed an affidavit with the court indicating that she

had been coerced and had no first-hand knowledge relating to Morrissette’s criminal

proceedings. Inman testified, however, that in April 2016, she had been living with

Morrissette’s fraternal twin brother, Josiah, who is the father of her children. She

recalled that a day or two before the shooting, Josiah and Morrissette had awakened

her when they angrily complained, after arriving home, about how Tremble had

shorted them $15 when they had purchased “weed” from him. Josiah had said he

wanted to “cripple” him, and Morrissette had pledged to “to box” him.            After the

shooting, Morrissette admitted to her and Josiah, along with several others, that he

had shot and killed Tremble. Inman also testified that Morrissette left town after the

shooting.

       {¶20}    Tremble’s sister Naicha testified at trial, too, recalling that she had

been in her upstairs apartment on Vine Street at the time of the shooting. After

someone shouted that her brother had been shot, she had looked out her window to

the street below her and had seen three individuals, including a man wearing an

“orange” shirt. At trial, she identified that man as Morrissette.

       {¶21}    At the conclusion of the evidence, the trial court gave the jury an

instruction on flight, over the objection of defense counsel. Ultimately, the jury

acquitted Morrissette of aggravated murder, but found him guilty of murder and all

other counts, including the drug-and-weapons charges stemming from the date of

Morrissette’s arrest. The trial court merged some of the offenses and sentenced

Morrissette to an aggregate term of 27 years to life in prison.



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                               Assignments of Error

                        I.     Weight-of-the-Evidence Claim

       {¶22}    In his first assignment of error, Morrissette challenges the weight of

the evidence upon which his murder conviction was based. In reviewing a challenge

to the weight of the evidence, we sit as the thirteenth juror. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We must review the entire record,

weigh the evidence, consider the credibility of the witnesses, and determine whether

the trier of fact clearly lost its way and created a manifest miscarriage of justice. Id.

       {¶23}    In support of his argument that his murder conviction must be

reversed, Morrissette contends that there was a dearth of tangible, physical evidence

connecting him to Tremble’s murder and that the witnesses’ testimony connecting

him to the murder lacked credibility. But our review of the record convinces us that

the evidence in support of guilt was overwhelming.            Contrary to Morrissette’s

argument, the surveillance video footage showing him reaching for something at his

hip while looking at and walking towards the victim, in the exact area where the

shooting took place, seconds before the shooting, was substantial physical evidence

connecting him to the murder.            And the inference from that footage was

corroborated by testimony from multiple credible witnesses.

       {¶24}    For instance, Taylor testified that he had seen Morrissette shoot

Tremble and that Morrissette had asked for help in getting rid of his gun after

admitting to shooting Tremble. Admittedly, Taylor had not stepped forward as an

eyewitness until he had been arrested on his own charges.             But Taylor’s prior

experience as a witness adequately explained his reluctance to assist the police.

       {¶25}    Miller and Cody testified that Morrissette had been “looking for”

Tremble when he left their apartment with a gun compatible with the murder



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weapon minutes before Tremble was shot.            And Cody further testified that

Morrissette had admitted to shooting Tremble when, as confirmed by the

surveillance video footage, Morrissette returned to Cody’s apartment building shortly

after the shooting.

         {¶26}   Other testimony supported a finding of guilt. Anderson and Inman

both testified that they had heard Morrissette threaten to kill Tremble and admit to

shooting him. Tremble’s sister Naicha identified Morrissette as the individual she

had seen at the crime scene immediately after the shooting. Finally, Morrissette’s

statements in his recorded phone calls from jail showed a consciousness of guilt. He

admitted that he had fled from and concealed himself from the police to avoid

apprehension, intended to feign insanity to avoid a long prison sentence for murder,

and had tried to distance himself from the nickname Psycho because he knew it

would be connected to the shooter.

         {¶27}   Admittedly, much of the evidence in support of guilt was

circumstantial. But circumstantial evidence inherently possesses the same probative

value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph one of the syllabus.

         {¶28}   Moreover, the weight to be given the evidence and the credibility of

witnesses are primarily for the trier of fact. See State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus. This is not an “ ‘exceptional

case in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78

Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983). Consequently, we overrule the first assignment of

error.




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                      II.     Prosecutorial-Misconduct Claim

       {¶29}    In his second assignment of error, Morrissette contends that he is

entitled to a new trial because of misconduct by the prosecutor. He takes issue with

the prosecutor’s use of his nickname Psycho throughout the trial and with some

comments the prosecutor made during closing argument.

       {¶30}    The test for prosecutorial misconduct is whether the prosecutor made

improper remarks at trial and, if so, whether those remarks prejudicially affected

substantial rights of the defendant. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d

883 (1984). Misconduct does not affect the defendant’s substantial rights unless it

denied the defendant a fair trial. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-

6266, 900 N.E.2d 565, ¶ 140; State v. LeMar, 95 Ohio St.3d 181, 2002-Ohio-2128,

767 N.E.2d 166, ¶ 121; State v. Neeley, 143 Ohio App.3d 606, 621, 758 N.E.2d 745

(1st Dist.2001). We will not deem a trial unfair if, in the context of the entire trial, it

appears clear beyond a reasonable doubt that the jury would have found the

defendant guilty even without the improper comments. LeMar at ¶ 121; Smith at 15.

       {¶31}    Although    Morrissette    argues   that   the   prosecutor    committed

misconduct, except where noted defense counsel failed to object and thus forfeited

all but plain error. See State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916

(1992). To prevail on plain-error review, Morrissette must establish that but for the

misconduct, the outcome of the trial clearly would have been otherwise. See Slagle

at 605; State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517 (1st Dist.), ¶ 75, citing

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the

syllabus.

       {¶32}    Repeated references to Morrissette as Psycho. We first address the

misconduct claim stemming from the repeated references to Morrissette as Psycho.



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It was well established at trial that Psycho was one of Morrissette’s nicknames. The

prosecutor referred to Morrissette as Psycho when questioning certain witnesses and

occasionally during opening statement and closing argument.               According to

Morrissette, the prosecutor referred to him as Psycho at least 54 times and

additionally elicited responses from witnesses establishing the fact that he went by

that nickname. He contends these references were intended by the prosecutor to

“subtly” paint him as person prone to antisocial behavior.

       {¶33}   It is improper for a prosecutor to use a nickname for the purpose of

impugning the character of the defendant. State v. Gillard, 40 Ohio St.3d 226, 230,

533 N.E.2d 272 (1988), abrogated on other grounds, State v. McGuire, 80 Ohio

St.3d 390, 686 N.E.2d 1112 (1997), cited in State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, 70 N.E.3d 508, ¶ 203. And, in general, an unnecessary use of a

disparaging nickname is improper. See State v. Lang, 129 Ohio St.3d 512, 2011-

Ohio-4215, 954 N.E.2d 596, ¶ 262. But this misconduct does not result in plain error

if, when weighing the evidence of guilt against the significance of the reference to the

nickname, it is not clear that, had the nickname not been improperly used, the

outcome of the trial would have been different. See Gillard at 230; see generally

Simmons at ¶ 77 (Prosecutor’s improper and repeated reference to the defendant as

the “offender” in closing argument did not affect the outcome of the trial.).

       {¶34}   Here, the prosecutor at times needed to refer to Morrissette by his

nickname Psycho and to elicit responses establishing the nickname for purposes of

identification and clarity. For instance, several of the state’s witnesses only knew

Morrissette as Psycho, and the nickname was used to tie this testimony to the other

testimony incriminating Morrissette. The prosecutor also referenced the nickname

during closing argument when making a “consciousness of guilt” argument. This



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argument was based on Morrissette’s statement during a recorded phone

conversation directing the other caller who had referred to him as “Psycho” to stop

calling him by that name. Morrissette told her, “That’s what they want to hear, that’s

not my name. Everybody keep calling me that. That ain’t my name, that’s what they

want to hear.”     Morrissette’s comments, when read in context, suggest that

Morrissette wanted to distance himself from that nickname because he knew

witnesses would identify the shooter by that name.

       {¶35}   The prosecutor used the nickname a few times when it was not

required for identification or clarification purposes, such as after a witness who only

knew Morrissette as Psycho had already confirmed Morrissette’s identity as the

defendant. This unnecessary use was improper, but it was not an overt attempt to

impugn Morrissette’s character and any impugning effect was negligible. At no point

did the prosecutor bring up the origin of the nickname or argue that the nickname

reflected on Morrissette’s character.   After considering these facts and the state’s

overwhelming evidence of guilt, we conclude that the unnecessary use of the Psycho

nickname by the prosecutor was not outcome determinative and did not result in

plain error.

       {¶36}   Alleged misconduct during closing argument. Morrissette argues

the prosecutor committed multiple instances of misconduct during closing

argument. A prosecutor is entitled to a certain degree of latitude during summation,

and may comment at that time on reasonable inferences from the evidence. State v.

Smith, 14 Ohio St.3d 13, 13, 470 N.E.2d 883 (1984); State v. Stephens, 24 Ohio St.2d

76, 82, 263 N.E.2d 773 (1970). We review the state’s closing argument in its entirety

to determine whether the allegedly improper remarks were prejudicial. Slagle, 65




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Ohio St.3d at 607, 605 N.E.2d 916, citing State v. Moritz, 63 Ohio St.3d 150, 157, 407

N.E.2d 1268 (1980).

       {¶37}   We first address Morrissette’s complaint that the prosecutor

improperly commented on statements he made during his jail calls indicating that he

would plead insanity so that he could be sent to a mental-health facility for a short

time instead of serving a long prison sentence. The record shows that in the opening

portion of closing argument, the prosecutor mentioned that Morrissette had said

some things during recorded jail calls that “[we]re not good for him.” The prosecutor

then stated:

       You hear [Morrissette] talking [in his jail calls] about wanting to be

       found not guilty by reason of insanity. To be found not guilty by

       reason of insanity, you have to have committed the crime. To be found

       not guilty—John Hinkley [sic] was found not guilty by reason of

       insanity.

       {¶38}   Defense counsel objected by stating, “Your Honor, I don’t think there

is evidence.” The court instructed the prosecutor to “move on.” The prosecutor did

not mention Hinckley again, but again referenced Morrissette’s recorded statements

involving his intended insanity defense by reminding the jury, “Defendant was

stating he thinks this way, he can go to Summit. We learned during trial Summit is a

mental health facility in town, and he could be back out in 2021.”

       {¶39}   The state returned to this line of argument in the rebuttal portion of

its closing argument, when the prosecutor stated:

       The next thing you have in your universe [of evidence] is these jail calls

       where he talks about this insanity defense. That’s what it is. Insanity

       defense is, I did it, but I was crazy. * * * I will plead insanity. I will do



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       five or six years. I will get out of here. I will be sitting in Summit. It

       will be a piece of cake.

       {¶40}   Defense counsel objected to this argument and claimed it was

improper because there was “no evidence or testimony or instruction from the court

about what insanity or insanity defenses were.” The court then instructed the jury,

“You have to take the law from me. This is closing argument. This is not evidence.

Ladies and gentleman, this jury will determine what the facts are and apply the law

to that.”

       {¶41}   The prosecutor then continued:

       Are these the statements of an innocent man, I will plead insanity?

       You can tell from the conversation he is trying to pull a fast one. I will

       plead insanity. I will do five or six years. I will get out of here. I will

       be sitting in Summit. It will be a piece of cake. That’s not innocence.

       It is a subliminal admission of guilt.

       {¶42}   Morrissette contends the prosecutor’s comments transcended the

bounds of acceptable argument. Specifically, Morrissette argues the reference to

Hinckley, the “would-be assassin” of former President Ronald Reagan, was improper

and highly inflammatory. We agree that the reference to Hinckley, which defense

counsel objected to, was improper and the prosecutor should not have injected that

name into the trial. But we reject any possibility that the prosecutor’s fleeting

reference to the name denied Morrissette a fair trial. We conclude instead, in the

context of the entire closing argument and the other evidence at trial, that the

reference to Hinckley was harmless.

       {¶43}   Next, Morrissette contends these remarks on his plan to plead

insanity touched on the issue of punishment, an issue outside the province of the



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jury. The state argues that Morrissette’s statements about pursuing an insanity

defense were evidence of consciousness of guilt and, therefore, the prosecutor’s

statements were a fair comment on the evidence.

       {¶44}    “Questions of punishment have no place in the trial of guilt or

innocence,” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶

138, and counsel should not comment on those matters. Here, the state was not

directly commenting on Morrissette’s punishment in this case, but was using

Morrissette’s own words to explain why the jury could infer a tacit admission of guilt

from Morrissette’s intent to feign insanity. Morrissette claims there was an improper

“subtext” to the state’s argument, that he “was a dangerous criminal who could

potentially be back on the streets in as few as five years if the jury didn’t do their civic

duty to convict him of murdering” Tremble. But Morrissette’s reading of the state’s

argument is a stretch.      While we do not condone the prosecutor’s comments,

Morrissette did not object in the trial court on the ground that the prosecutor was

touching on punishment, and he has failed to demonstrate that these comments were

outcome determinative.

       {¶45}    Morrissette also attacks the prosecutor’s contention during the

rebuttal portion of closing argument that the state’s evidence was “completely

unrebutted,” claiming the prosecutor misrepresented the record and improperly

shifted the burden of proof. Morrissette contends the statement was “false” because

defense counsel’s cross-examination of the witnesses exposed “gaps and

inconsistencies” in the evidence and testimony offered by the state. But we conclude

that the prosecutor’s commentary on the evidence, when read in context, falls

squarely within the latitude afforded to counsel.




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       {¶46}   The prosecutor’s full argument on this issue was that inconsistencies

brought out by the defense were not material. Moreover, the prosecutor’s comment

was permissible comment on the “relative strength” of the state’s case, State v.

Ferguson, 5 Ohio St.3d 160, 163, 450 N.E.2d 265 (1983), and in no way implied that

the state’s burden of proof had shifted to the defense. See State v. Collins, 89 Ohio

St.3d 524, 527, 733 N.E.2d 1118 (2000).

       {¶47}   Next we address Morrissette’s contention that the prosecutor

committed prejudicial misconduct by suggesting to the jury that the evidence

contained a “behavioral fingerprint” that tied Morrissette to Tremble’s murder. The

import of the state’s argument was that Morrissette’s possession of a .40-caliber

pistol with an extended magazine at the time of his arrest on October 5, 2016, was

indicative that Morrissette was the person who had shot Tremble with a .40-caliber

pistol with an extended magazine on April 16, 2016.

       {¶48}   We agree with Morrissette that this “behavioral fingerprint” argument

was improper, as the record did not contain the requisite type of evidence to support

the proof-of-identity argument suggested by the prosecutor. See State v. Echols, 128

Ohio App.3d 677, 693-694, 716 N.E.2d 728 (1st Dist.1998); State v. King, 1st Dist.

Hamilton No. C-060335, 2007-Ohio-4879, ¶ 40-44. For instance, the Glock pistol

found in Morrissette’s possession six months after the murder indisputably was not

the murder weapon or the same make as the murder weapon, and Morrissette had

not even discharged that pistol when apprehended by the police.        Although this

argument was not based on the evidence, Morrissette has failed to show plain error

on this record, which contains overwhelming evidence of his guilt.

       {¶49}   Ultimately, we conclude that although some of the prosecutor’s

comments were improper, the effect of those improper comments, even when



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combined, was of no significance and did not result in an unfair trial. Accordingly,

we overrule the second assignment of error.

                       III.   Erroneous-Flight-Instruction Claim

       {¶50}   In his third assignment of error, Morrissette argues the trial court

erred in giving a jury instruction on flight. He argues that the evidence did not show

he fled from justice, rending the instruction improper. We disagree.

       {¶51}   Evidence of the accused’s flight, concealment, and related conduct is

admissible to show consciousness of guilt. See State v. Taylor, 78 Ohio St.3d 15, 27,

676 N.E.2d 82 (1997); State v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969);

State v. Summerlin, 1st Dist. Hamilton No. C-160539, 2017-Ohio-7625, ¶ 21.             An

instruction on flight is proper if the record contains sufficient evidence to support the

charge.   Summerlin at ¶ 21. “Flight” means some escape or affirmative attempt to

avoid apprehension by the police. Id., citing State v. Brundage, 1st Dist. Hamilton

No. C-030632, 2004-Ohio-6436, ¶ 17.        The decision whether to instruct the jury on

flight is a matter within the trial court’s discretion and is reviewed for an abuse of

that discretion. Id.

       {¶52}   The state’s evidence in this case, if believed, demonstrated that after

the shooting Morrissette left town for some period of time and never showed up for

work again or contacted his employer to terminate his employment. In the recorded

jail calls, Morrissette repeatedly acknowledged that he knew the police had been

looking for him and he laughed about successfully eluding them.              He recalled

eluding apprehension by a squad of police officers by hiding in a tree. On another

occasion he had rubbed “hella hair grease,” “seasoning,” and “cologne” on his body to

prevent K-9 police dogs from alerting to his scent. Under these circumstances, we

cannot hold that the trial court’s decision to give a flight instruction was so arbitrary,



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unreasonable, or unconscionable as to connote an abuse of discretion. See State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980); Summerlin at ¶ 21.

Consequently, we overrule the third assignment of error.

               IV.   Ineffective-Assistance-of-Trial-Counsel Claim

       {¶53}    In his fourth assignment of error, Morrissette contends he was denied

the effective assistance of trial counsel because his attorneys failed to object to the

state’s repeated use and elicitation of the nickname Psycho, and actually joined the

state in making such references.

       {¶54}    To prevail on an ineffective-assistance-of-counsel claim, Morrissette

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness and he was prejudiced as a result. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With regard to deficient

performance, “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”          Id. at 689.    To

demonstrate prejudice, Morrissette must establish that, but for counsels’ errors,

there is a reasonable probability that the result of the trial would have been different.

Strickland at 694; State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373

(1989). The failure to make an adequate showing on either prong is fatal to an

ineffective-assistance-of-counsel claim. See Strickland at 697.

       {¶55}    Here, Morrissette cannot prevail on his claim. When disposing of the

second assignment of error, we found the prosecutor had acted improperly when he

referred to Morrissette as Psycho in instances where that reference had not been

required for identification purposes, but concluded that any improper use of the

nickname had not affected the outcome of the trial.          We determined that any

impugning effect was negligible when weighed against the overwhelming evidence of



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                       OHIO FIRST DISTRICT COURT OF APPEALS



guilt. For similar reasons, we hold that defense counsels’ failure to object to the

state’s unnecessary use of the name and defense counsels’ own allegedly unnecessary

use of the name at trial was not outcome determinative, either. The jury was not told

the origin of the nickname and it was not used in an impugning manner. Although

the nickname was used a significant number of times, this alone does not

demonstrate the requisite prejudice to establish an ineffective-assistance-of-counsel

claim. The strength of the state’s evidence was such that we are confident the jury

would have found Morrissette guilty of the offenses even absent the allegedly

deficient performance by trial counsel.         Accordingly, we overrule the fourth

assignment of error.

                           V.      Cumulative-Error Claim

       {¶56}   In his final assignment of error, Morrissette argues that the

cumulative effect of the errors at trial deprived him of his right to a fair trial. Under

the cumulative-error doctrine, a conviction may be reversed if the cumulative effect

of errors deemed separately harmless have the collective effect of denying the

defendant a fair trial. See State v. Cook, 1st Dist. Hamilton No. C-140118, 2014-

Ohio-4900, ¶ 15, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus.

       {¶57}   Here, we determine that Morrissette was afforded a fair trial,

notwithstanding the cumulative effect of the errors occurring at trial.         For this

reason, we overrule the fifth assignment of error.

                                     Conclusion

       {¶58}   Morrissette has failed to demonstrate reversible error.          He was

provided a fair trial, at which the state presented overwhelming evidence of his guilt.

Accordingly, we affirm Morrissette’s convictions for murder, having weapons while



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                     OHIO FIRST DISTRICT COURT OF APPEALS



under disability on April 16, 2016, and October 5, 2016, aggravated possession of

hydrocodone, and possession of cocaine.

                                                              Judgment affirmed.


M OCK , P.J., and M ILLER , J., concur.


Please note:
       The court has recorded its own entry this date.




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